The Jeffrey MacDonald Information Site is a compendium of information about the Jeffrey MacDonald case. MacDonald was convicted in 1979 of the murders of his pregnant wife and two small daughters. He is serving three life sentences for that brutal crime.

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1979 JEFFREY MACDONALD CASE TRIAL TRANSCRIPT
August 13-14: James Osterburg

F U R T H E R  P R O C E E D I N G S  4:10 p.m.

(The following proceedings were held in the presence of the jury and alternates.)

THE COURT:  Defendant may call his next witness.

MR. SEGAL:  The Defendant calls James Osterburg, Your Honor.

(Whereupon, JAMES W. OSTERBURG was called as a witness, duly sworn, and testified as follows:)

D I R E C T  E X A M I N A T I O N  4:11 p.m.

BY MR. SEGAL:
Q  Mr. Osterburg, what is your present residence, please?
A  1500 Oak Avenue, Evanston, Illinois.
Q  And what is your occupation or profession?
A  I am a professor at the University of Illinois in Chicago Circle and the head of the Department of Criminal Justice.
Q  The Department of Criminal Justice: what is encompassed within the field of criminal justice studies?
A  Well, criminal justice is a new field not found in all universities at present but in a large number of them, and it concerns itself with the crime causation, crime investigation, historical aspects of crime, legal components of crime, and psychological aspects of crime.
    Of course there are faculty members who teach in each of these areas.  No one faculty member pretends that he can teach in all of these areas.
Q  How long have you been the head of the Department at the University of Illinois in Chicago Circle?
A  Too long.  Since 1971 or 1972.
Q  And prior to that you were a member of the faculty of the same university?
A  I was, for about one year.
Q  What previous academic affiliation did you have before going to the University of Illinois?
A  Well, immediately prior to going to Illinois, I was a faculty member at Indiana University in Bloomington, Indiana, in the Department of Police Administration.  Subsequently, the name of the department was changed to the Department of Forensic Studies.
    Prior to that, I was a faculty member at the Baruch School, which is a part of the City University in New York City.  I was a lecturer at that institution.
Q  Were you ever a member of the faculty at the University of California School of Criminology?
A  I was.  I was a visiting professor for one year from 1967 to 1968, as visiting professor in Berkeley, University of California.
Q  In what field is your bachelor's degree?
A  My bachelor's degree is in chemistry as my major.  I have a bachelor of arts degree.
Q  When you say that you majored in chemistry, did you have more than one course in chemistry?
A  Yes, Counselor, I had eight courses--ten courses.
Q  And your bachelor's degree is from what university and what year?
A  My degree in chemistry--undergraduate degree--is from Brooklyn College, again one of the city universities, in June 1938.
Q  Did you do any graduate work thereafter in the field of chemistry?
A  I did.  I studied for a master's degree at Brooklyn College also, and completed the course requirements; but then my employment precluded my writing a thesis.  This being Depression days, one took a job when he could get one.  And I didn't finish the thesis, but I completed the course requirements for the master's degree in chemistry.
Q  And how many graduate credits in chemistry did you have?
A  My recollection is 30 graduate credits--semester hour credits.  That comes out to about 10 courses.
Q  In addition to these graduate credits in chemistry, do you have any other graduate studies or graduate degrees?
A  I do.  I have a Master's of Public Administration degree, which I received from New York University in 1960.
Q  And was that in any special area of emphasis in regard to law enforcement?
A  Well, I had some law enforcement courses in that--in the--taking the degree.
Q  Now, have you had any practical experience in police work, particularly in the area of forensic science in police work?
A  Yes, I was a member of the New York City Police Department for 20 years.  I am a retired member of the New York City Police Department.  For approximately 10 of those years I was active in examining physical evidence at crime scenes, among other things.
Q  Did you have any experience also as a patrol officer while you were with the New York City Police Department?
A  Yes, I did.  For the first year and a half, approximately, I was a patrolman in the 22nd Precinct, or the "Two-two," as it is called in New York City.
Q  Did you ever have any assignments in the Police Academy or responsibility for teaching other police officers?
A  Yes, I did.  The last five years of my assignment in New York City Police Department was as a faculty member in Baruch School, and at that time the students were almost exclusively police officers from the New York City Police Department and some other police agencies in the vicinity of New York.
Q  And during the period of time that you were engaged in crime laboratory work, did you hold the rank of detective in the New York City Police Department?
A  I did.
Q  After you retired in 1960 from the Police Department, is that when you went into active teaching and university work?
A  Well, I was actively teaching as a full-time occupation while a member in the Police Department, assigned to that duty by the Police Commissioner from 1955 on.
Q  Do you have any military experience?
A  I was a member of the U. S. Army Military Police Reserve.
Q  What rank did you hold?
A  I received a direct commission as captain in the Military Police Reserve--Army Reserve.
Q  And how many years were you with the Army Reserve Military Police?
A  Somewhere around six years--five years.
Q  And did you hold any special responsibility with any organization or unit within the military police corps?
A  I was the commanding officer of a mobile crime laboratory detachment, the 497th.
Q  Just very briefly, what was the CID mobile crime detachment supposed to do?
A  Well, in the event of mobilization, the mobile laboratory would be available for going to crime scenes, to process crime scenes, for such evidence as might be available.  At least--since I never practiced it, I don't know.  That's my--what I thought we would be doing.
Q  Are you the author of any books, Mr. Osterburg?
A  Yes, I am the author of two books: one written by myself and a co-author, Charles E. O'Hara, entitled An Introduction to Criminalistics, published first by MacMillan in 1948 and republished--reprinted, really, by Indiana University Press in 1970--the early '70s, I don't recall the reprinting date.
Q  And in the book Introduction to Criminalistics, what topic--what subjects are covered in that book?
A  Well, it deals with criminalistics.  You would cover such things as tool marks and fingerprints and photography and the use of ultraviolet light, and how to investigate automobile accidents, some information on scientific instruments that are applied to the examination of physical evidence found at crime scenes.
Q  And what is the other book that you are the author of, Mr. Osterburg?
A  The other book was published by Indiana University Press in 1968, I believe.  It is entitled The Crime Laboratory, case studies in investigation--scientific investigation, criminal investigation.
Q  Now, are you the author of chapters as portions of other books in the field of criminal investigation, criminal science investigation?
A  I have been invited to author chapters in other books, yes.
Q  And about how many have you actually written that have been published?
A  Oh, I think about three--four.
Q  Have you also written articles in professional and scholarly journals in the field of forensic science and police investigation?
A  Yes, I have.
Q  About how many journal articles have you written that have been published in such journals?
A  I have about 20 journal articles which have been published.
Q  And can you just give us an idea of what subjects--the range of subjects that you have covered in your writings?
A  You are going way back now, sir.  I am interested--my current interest is in fingerprints and fingerprint proof.  In the past I have written on incriminating stains, homicide investigation, suicide or accident--question mark, some articles on chemical tests for intoxication.
Q  In addition to the 20 journal articles that you've written, have you written reviews of other books in the field of forensic science and criminal investigation that were also published in scholarly journals?
A  Yes, I have published about--sixteen book reviews of mine have been published.  Within recent times I seem to be asked to do most of the published--or the reviewing of books coming out on criminal investigation.
Q  Now, have you also been asked to either present papers at symposia or meetings of forensic science and criminal investigators, or serve as a moderator of meetings and discussions by professionals in the field of criminal investigation?
A  Well, criminal investigation and forensic science--the answer is yes.  In about 30 instances I have presented or been a moderator of or involved in some way in organizing a symposium or conference dealing with the area of forensic science, criminal investigation.
Q  Mr. Osterburg, what would you say your areas of specialization in the areas of forensic science and criminal investigation is today?
A  Today?  Well, my current research interest is in proof, but my experience is in the recognition, collection, and preservation of physical evidence at crime scenes, and the book, The Crime Laboratory, was written with the hope that it would make a major contribution to literature of the field such that police offices and those responsible for protecting crime scenes would know what needs to be done in order to recognize physical evidence.  So I obtained actual police cases--about 30 of them--all of which are the actual evidence found at crime scenes, with one exception, and photographically presented this evidence--or it is presented in the text--to the police officer, so that he may have this crime scene photograph and then the exemplar or known standard, which I gather you have heard those terms before in this courtroom.  That is presented and the student has an opportunity of looking at what was present in the crime scene, what was--what the exemplar taken from a suspect or something in his possession would look like and then see whether they could be compared using numbers to show points of comparison and so on.
    Now, in selecting these cases, I did not look for textbook--typical textbook illustrations where everything was so beautiful that anybody could see it.  I deliberately selected cases where the crime scene evidence was so poor, or apparently so poor, that many people would have overlooked collecting that physical evidence, but nevertheless, if it were collected, would somebody who knew what they were doing--by somebody who knew what they were doing--then the comparison between the exemplar taken from a suspect and that physical evidence, the match could be made.
Q  Mr. Osterburg, while we are talking about your book, do you know whether your books--the two books on criminal investigation--are on the recommended reading list for any police department or criminal investigation agency?
A  I would be surprised if they weren't.  I know that the military police, at least--my publisher would be displeased--the military police, I am informed, use An Introduction to Criminalistics.  Whether they use The Crime Laboratory or not, I am not sure.
Q  Now, in addition to your interests in physical evidence, have you had an experience in the problems of crime scene preservation and control and preservation of evidence at crime scenes?
A  Yes, I have.
Q  Now, one last area I want to ask you in this preliminary examination, are you a member of any professional organizations in the field of forensic science?
A  Yes.  I am a member of the American Academy of Forensic Scientists, which is the largest organization of forensic scientists in the world.
Q  Have you held any positions of responsibility within the American Academy of Forensic Scientists?
A  Yes.  I was the Chairman of the Criminalistics Section and then I became the President of the Academy.
Q  What year were you the President of the American Academy of Forensic Scientists?
A  I think it was '68-'69.  I am not sure.  I would have to refer to my vitae.

MR. SEGAL:  If Your Honor pleases, at this time, first of all, we would mark and offer in evidence Defendant's exhibit D-58, the full vitae of Professor Osterburg, including the names of all articles and literature that he has written, a document of 14 pages in length.  We have given a copy to the Government, and, secondly, if Your Honor pleases, we would offer Professor Osterburg as an expert in the area of fingerprints, crime scene investigation and preservation, and criminalistics matters generally.

THE COURT:  Very well.

(Defendant Exhibit 58 was marked for identification and received in evidence.)

MR. SEGAL:  Does the Government care to ask Mr. Osterburg any questions?

MR. MURTAGH:  No, Your Honor.  Thank you.

BY MR. SEGAL:
Q  Mr. Osterburg, let me ask you perhaps what is a very basic question at the outset, but I would appreciate it if you would perhaps tell us as relatively succinctly as you can, what is the importance, what is the necessity of protection of a crime scene?
A  Well, a crime scene represents the first opportunity an investigator has to obtain evidence of the individual or individuals who committed the crime.  In order to do that, he must examine that crime scene with some knowledge about what he is going about, why he is going about doing it.  But in order to do that, the crime scene must be protected so that physical items of evidence are not disturbed, touched, trampled upon, moved, or possibly even removed if those that committed the crime were to come back and, because they were apparently part of the scene, they could pick something up and put it in their pockets and so on.
What you want to do is freeze the crime scene as soon as possible.
Q  Are there a series of principal steps that a good scientific criminal investigator would agree are necessary in order to preserve a crime scene for this type of investigation?
A  I am not sure you would say "step--you have a checklist A, B, C."  But there are certain things that need to be done that there is common agreement among investigators, and primarily, namely, making sure that the crime scene does not have intruders, people milling about, eliminating the possibility of things being disturbed or handled or touched or moved and doing that from the very first instance.
Q  Now, you say that the crime scene shouldn't have intruders.  What kind of person do you define as "intruder"?  Do you mean civilians walking in off the street?
A  Not necessarily civilians.  Of course, it could be a civilian coming in if it is not properly protected.  It could be newspaper people coming in, but more than likely, it is to be members of the department or the patrol force coming in and walking around because they are curious and so on.
Q  I would like to turn your attention to a specific area dealing with fingerprints, since that is one of your major areas of interest.  I want to ask you some questions about the fingerprint processing of the house at 544 Castle Drive at Fort Bragg.  First of all, am I correct in my understanding that you have read the transcript of the testimony of Hilyard O. Medlin given here in this Court and also given at the Article 32 proceedings in 1970?
A  I have read both of those.
Q  Have you looked at a number of photographs taken of the crime scene at 544 Castle Drive?
A  I have.
Q  And have you had a chance yourself to personally visit 544 Castle Drive?
A  I have, last Saturday.
Q  Have you also heard the testimony in part of the lead investigator in this case, Mr. William Ivory of the CID?
A  In part; yes.
Q  Now--

MR. MURTAGH:  (Interposing)  Your Honor, we would OBJECT if he has not heard or read the testimony in its entirety, if he is going to be asked questions pertaining to Mr. Ivory.

THE COURT:  Well, of course, the questions would have to be limited to that portion of his testimony with which he is familiar, if he is going to be asked about it at all.  I take it that he wouldn't ask him anything about what he didn't know about.  Proceed.

MR. SEGAL:  Thank you, Your Honor.

BY MR. SEGAL:
Q  Now, we have heard that the Crime Lab team that came from Fort Gordon on February 17th, 1970, was given a briefing by CID investigators in this case about what facts they had.  Now, considering the information that the Crime Lab investigators were given about this crime, would you say that the house at 544 Castle Drive was processed for fingerprints in the manner that is consistent with good crime scene processing procedures?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  Do you have an opinion as to whether the crime scene as it was processed by Mr. Medlin and Mr. Turbyfill was processed in a manner in which you would call, in your opinion, consistent with good criminal investigation practices?

MR. MURTAGH:  OBJECTION.

THE COURT:  SUSTAINED.

MR. SEGAL:  May we see Your Honor, please?

THE COURT:  Yes.


B E N C H  C O N F E R E N C E

MR. SEGAL:  Your Honor, I would like to have an offer as to the basis of why we are not permitted to ask this witness, considering he has read Mr. Medlin's testimony as the fingerprint expert, and he has seen the crime scene, as to why he may not, considering his qualifications, tell us whether they comport to standards in the field.

MR. MURTAGH:  Your Honor, that seems to me it is a nebulous area in which the witness is being sort of set up as a Monday morning quarterback.  If Mr. Osterburg is in a position to testify with respect to anything that Mr. Medlin compared and say that it is either not consistent or not identifiable, that is one thing.
    But the general sort of, "Do you think this crime scene was adequately processed,"--this man, if he has only read what Mr. Segal has brought out on direct examination, I do not see how he is in any position to judge this better than the jury.
    The jury has heard the testimony of numerous people who were in the crime scene--warts and all--with respect to the processing.  It seems to me that expert testimony would only be called for in a matter in which the jury is not capable of making such a determination.
    Based upon the facts that are in evidence, I think the jury is certainly capable of determining these shortcomings, if there were some, of the processing of the crime scene.  But I don't see how that affects the evidence that was put in.
    We did not put our case together on the omissions of the crime scene.  We were talking about things--the tangible objects--that were collected, were matched, or were not matched.  If he is in any position to say that our matches are inaccurate, that is one thing.

THE COURT:  Let's begin right here, now.  Have you got any fingerprint evidence in this case?

MR. MURTAGH:  The only prints that we offer--we have the footprint, MacDonald's footprint.
We have the record prints of Helena Stoeckley, which were not found at the crime scene.  Mr. Medlin testified to that.
    We have the fingerprints of the victims and the Defendant's record finger and palm prints.  The only comparisons, I think, we put into evidence with respect to his prints, other than the footprint, was related to Esquire magazine.

THE COURT:  Let me tell you, what I am concerned with is just whether or not it proves anything.  You are, of course, going to say that we found these knowns and didn't find any strangers.  I take it that is part of your case.

MR. MURTAGH:  Your Honor, we can say that there are unidentifiable prints at the crime scene.  I think we brought out that none of those unidentified prints are on any items of obvious evidentiary significance--the weapons, for example.
    This is not a situation where you have a bloody fingerprint on two sides of a piece of broken glass.

THE COURT:  Maybe I don't understand where defense counsel is going, but I can't see that it proves anything.  If what you propose to do is simply to show, by this witness, that if they had done a thorough Segal-type investigation on this house in processing it, that they might have found something else, and they might not.  I think that still leaves that in speculation.

MR. MURTAGH:  Yes, sir.

MR. SEGAL:  If Your Honor pleases, as I understand the Government's theory of the case, it has to be--they have said it--that there is no evidence of intruders in this house.  And in part to show that, they went to extreme lengths to have Mr. Medlin testify about how thorough he dusted for fingerprints.
    Why he dusted up to 18 inches and not below, up to six feet.  He wasn't dusting to prove the MacDonalds lived there, Your Honor.  We all know they lived there.  He introduced all that evidence at great length--all the problems about lifting to show that they could not find evidence of intruders.
    Secondly, Your Honor, they went to great length to tell us about how they found the fingerprints on the back door, and why they could not bring them in.  It is my proposal, Your Honor, to show that the reason why the United States Government did not find, in part, fingerprint evidence, is because they did not look in the places where they should have looked.
    That good criminal practice--not some ideal system--but good criminal practice would have required them, and that Mr. Medlin and Mr. Turbyfill walked right past the obvious points of evidence.
    The way I propose to do it is to first of all--because the Rules of Evidence now allow it--to let him state an opinion.  I will go beyond that.  After that opinion, I will say, "What do you base that opinion on," and we will go from instance to instance.  Not a "Why didn't you dust on the ceiling in the middle of the room."
    We will go to every critical place and he will say why it is important to have dusted there.
Now if the Government's case is based upon the fact that they claim they can't find evidence of intruders and therefore that means MacDonald was lying about his story, I don't understand how the Defendant can be denied the opportunity of showing that in a totally circumstantial case, the Government--for whatever reasons--refused to, failed to, neglected to fingerprint the critical areas.

THE COURT:  You want to show that they did not look in all the places where these things might have been found?

MR. SEGAL:  Reasonably.  I am not talking about, "Why didn't you look under the sink."  I mean, that is silly and it would not be worth our time.

THE COURT:  Give me some examples of places where he will say that they should have looked that Medlin didn't look.

MR. SEGAL:  On the door that connects the utility room to the master bedroom on the inside panel, on which one would push one's hand to open the door.  It is a swinging door.  Mr. Medlin did not dust.  There is no fingerprint powder.  There is no evidence.  His records show he did not dust.
    He will show that on the headboard where the word "Pig" was written, that Mr. Medlin dusted a portion and failed to dust the major portion of it.  He will go through a series of places, you know, in the living room that are critical.

MR. MURTAGH:  Your Honor, the door that leads from the utility room into the master bedroom, if we take the testimony of Mr. Tevere, who I think has no reason to lie, that door was open.  As I recall, this inside door is kind of jammed in a position.
    In other words, there is no reason why you would have to open the inside door in order to get in or out of the bedroom.  With respect to the fingerprints, the one thing I would want to bring out to the court's attention is this.
    I think we established through Mr. Medlin's testimony that fingerprints can exist and be detected in places long after they are placed there.  There are unidentified fingerprints in the crime scene, but you cannot, by the presence of any of those fingerprints, say, "This print had to have been made during the commission of the crime."
    There is no such evidence.  I believe we did not say there was no evidence of intruders.
What we said was there is no evidence of forced entry.  In other words, it is not a sterile crime scene.

THE COURT:  I think we are taking too much time with this.  I am going to let the witness say where he would have looked that this guy apparently did not look.  I will reverse myself on that.  You can bring it out on cross-examination.

(Bench conference terminated.)


BY MR. SEGAL:
Q  Mr. Osterburg, I am going to ask you a general question and then I would like to, depending upon your answer, perhaps, to go into a number of specifics.
    But first of all, to repeat my general question: based upon the information that was given in the briefing by the CID lab team, including Mr. Medlin and Mr. Turbyfill, concerning the events that they knew had taken place February 17, 1970, in your opinion, based upon your experience and your expertise, do you have an opinion as to whether the crime scene was fully processed for fingerprints as would be required by good crime scene processing practices?
A  I do have such an opinion.
Q  And what is your opinion in regard to the adequacy of the crime scene fingerprint processing in this case?
A  The crime scene was grossly under processed.
Q  When you say "grossly under processed," what do you mean?
A  Well, there are obvious areas where anyone trained in fingerprint processing of a crime scene would have processed.  And there is no evidence, based on my examination Saturday, that those areas were indeed processed.
Q  And are you basing that statement not only on your observations but on reading Mr. Medlin's testimony in these proceedings here?
A  Mr. Medlin said he processed everything that didn't move, as I recall.

MR. MURTAGH:  OBJECTION.

THE COURT:  Well, I will SUSTAIN that.  Don't consider that, members of the jury.

BY MR. SEGAL:
Q  Mr. Osterburg, would you take, for instance, the first example of what you think is an instance of gross under processing of the crime scene for fingerprints?
A  Well, upon entering from the rear door into the utility room, immediately to the left is a light switch.
Q  Can you hold on for one second.  Let's see if we can get our model, which has been neglected for a few days, back into position.

(Pause.)

Q  May I ask, Mr. Osterburg, if you would come down, please, and indicate if you would--there is a pointer right back of your chair there--if you would indicate to the members of the jury the first of these areas that you are referring to?
A  Yes.  There was a light switch in this area, and so when the door was opened if the lights were on or off it is possible someone would, in moving, in touch to see the wall--what's present.  There was no evidence of processing of that area around the light switch whatsoever.
Q  Is that a usual or unusual place for a fingerprint processor to be looking for fingerprints?
A  Well, of course, that's where you would look for fingerprints.
Q  Now, proceeding past that, were there any other places in that area that you found were neglected for processing fingerprints?
A  This is the swinging door that--I don't want to break the model--but it does go in both directions.  Oh, I did break it.
    If this door were closed, most people--many people would put their hands up and push on the separate panel.  That was not processed whatsoever.

MR. MURTAGH:  OBJECTION, Your Honor.  The hypothetical assumes a fact which is not in evidence.

MR. SEGAL:  Well, I will put in an intervening question, Your Honor.

THE COURT:  All right.  I will SUSTAIN the objection and let you ask your question again.

BY MR. SEGAL:
Q  Did you examine that door that you are referring to between those two rooms?
A  I did.
Q  How does one cause that door to swing in either direction?
A  Well, by pressure--by pushing on it.
Q  Is there a handle on it in any place that one would use ordinarily?
A  No, that door does not have a handle as such--doorknob.
Q  Did you examine the two faces of that door to see whether they had been fingerprinted?
A  I did.
Q  Did you find evidence of fingerprint processing on one side or the other?
A  I would refer to my notes, if I may.
Q  Please do.
A  There's evidence of fingerprint processing on the door, but it was on this side largely, more just on the four-inch border--whatever that is called.
Q  Now, when you are saying, "this side--"
A  I will refer to them in a minute.
Q  Are you referring to the side that faces into the master bedroom?
A  I am referring to the side that faces inside--into the master bedroom.  Now, let me see what the notes say.  That was powdered from the floor--let me reverse that.
    At a height 50" above the floor there was evidence of processing of this side of the door, the south side of the door that faces the master bedroom; and it was processed to a height of 25" from that.
Q  So, the highest point the processor had gone was--what?
A  Twenty-five inches.
Q  Off the floor?
A  No, 20 inches off the floor started the powder and then for 25 more inches, making a total of 45 inches up to less than a height of four feet, there was evidence of processing.  And that was on the doorjamb in the master bedroom.
Q  Now, was there evidence of processing on the other side of that same door?
A  On the utility side?
Q  Yes.
A  Let me examine my notes.  May I correct what is in error?
Q  Certainly.
A  I was talking about the doorjamb before and not the door.  Let me go to the door.
Q  All right, please do that.
A  And let's--

MR. MURTAGH:  (Interposing)  Your Honor, we would ask that the Court please instruct the jury to disregard that previous testimony which was apparently in error.

THE COURT:  Well, if you were speaking of the doorjamb, I assume that he will come back with questions about the doorjamb.  Let's let it stand like it is and save it.  Tell us about the door itself.  Does that have any dusting on it at any place?

THE WITNESS:  Yes; on the south side of the door, which is what I was talking about earlier--the south side of the door.  At 25 inches above the floor, processing commences, and it goes up to 48 inches--not a height total of 48 inches but 48 inches high on the door frame; and the door panel, the centerpiece, went up to a height of 43 inches.

BY MR. SEGAL:
Q  Now, what other areas were not covered that in your opinion a competent fingerprint processor should have covered?
A  Well, in my opinion, the entire door should have been processed.  It is not that laborious nor time-consuming, and to be certain that you miss nothing, you would process the entire door.
Q  Now, beside that door, what about the doorjamb?  Was the doorjamb, in your opinion, fully processed?
A  On the south side doorjamb--that's the side inside the master bedroom--
Q  Yes?
A  --I think I gave these figures before, but I will repeat them.
Q  Please do.
A  Twenty inches from the ground or the floor, processing begins, and then it goes on for 25 inches and ceases at a height from the floor of 45 inches.
Q  What additional areas would you have felt that a competent fingerprint technician should have processed on that doorjamb?
A  Well, again, I would have continued as high as one could reach.
Q  And why would you do that?
A  Because this is a triple homicide and I would take no chances of missing any possible evidence of somebody possibly raising and looking in--whatever.  It is not that hard to do.  It should be done.
Q  Would that be particularly so in view of the fact that the crime scene processors had no information about the height of the assailants described by Dr. MacDonald?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  All right, now, did you have occasion to look at the headboard in the master bedroom, Mr. Osterburg?
A  I didn't finish talking about the swinging door.
Q  I beg your pardon.  I'm sorry.
A  Now, on the north side of the swinging door--namely the utility room side--32 inches above the floor, processing commences for a height--then for a height of 38 inches or up to 70 inches high.  That's on the frame, on what I would call the door frame, which is in width four and a half inches.  That's on the left-hand side of the door facing.
    The panel area and none of the rest of the door--no part of the rest of the door--was processed where a person might push on it.
Q  Would you point out, please, on that door, or on the model, exactly the areas where you say there is no evidence of processing on the panel?
A  I am the only one who can see it, I think.
Q  Let's see if we can lift it up a little bit.  I will have to pay for it, I'm sure.

MR. MURTAGH:  OBJECTION, Your Honor.

MR. SEGAL:  All right, I won't have to pay for it.  Then go ahead.

THE COURT:  The bill was canceled.

THE WITNESS:  There is a piece of wood four and a half inches wide that runs on the outside of the door, and at the top and at the side and at the bottom.  Then in the middle, there is another wider strip, and then there is a panel in between those.  That was not processed.

BY MR. SEGAL:
Q  Now, in your opinion, would a competent--

MR. MURTAGH:  (Interposing)  OBJECTION, Your Honor.

MR. SEGAL:  --Fingerprint processor using--

THE COURT:  (Interposing)  What are you objecting to?  He was just three words into the question.

MR. MURTAGH:  I am objecting to the assumption of the competency or the lack thereof that is loaded into the hypothetical.

MR. SEGAL:  I am not asking what an incompetent person would do.  I am asking--

THE COURT:  (Interposing)  I don't know what you are asking.  I will let you start over and I will find out.

BY MR. SEGAL:
Q  In your opinion, Professor Osterburg, would a competent fingerprint processor have processed that part of the door for fingerprints at a crime scene of this magnitude?
A  A competent, conscientious crime scene fingerprint processor would have.
Q  Is there anything else about the utility room that you observed in the course of your investigation into the house and your review of Mr. Medlin's testimony?
A  I think that points to the type of processing that went on in that building.

MR. MURTAGH:  Your Honor, I OBJECT to that.

THE COURT:  I will SUSTAIN the objection to that.

BY MR. SEGAL:
Q  Let's talk about the master bedroom, then.  Did you make any observations in there about the extent or lack of extent of fingerprint processing in that room?
A  Yes, I did.
Q  What, if anything, did you note that struck you as unusual from the standpoint of fingerprint processing in that room?
A  Well, the east all and the south wall were unprocessed.
Q  Let's move the model again, and if you would, then please point to the walls that you are referring to?
A  The east wall and the south wall were unprocessed.
Q  Now, along the east wall, when you say "unprocessed," you mean that you found no evidence of fingerprint powder on the wall at all?
A  That is correct.
Q  What about the headboard of the bed there in the master bedroom?
A  When you say "at all," I am incorrect there.  There was a little area above the bed, a small slight area above the bed that was processed.
Q  Could you indicate here on the model precisely what area you are talking about?
A  This area in here (indicating).
Q  Could you indicate roughly the size of the area?
A  I may have those measurements.  No, I am sorry.  I don't have the measurements.
Q  What did you observe that was unusual, otherwise, about the fingerprint processing in the area of that particular wall?
A  It is the headboard itself which I concentrated on.
Q  Tell us about your observations there?
A  The headboard is 56 inches wide.  From this side (indicating), facing it, which would then be the left side, 21 inches in were processed.  Seventeen inches from the top down were processed.  Now, on the top edge of the headboard, six inches in were processed out of the 56.  Going down on the left side of the bed, facing the bed from the foot, 12 inches were processed on the edge of the headboard.
Q  Now, was there any particular pattern or reason that you could understand as to why only that limited section of the headboard would be processed?
A  I am totally mystified.
Q  In your experience and based upon your knowledge, what should a competent fingerprint processor have done to the extent of fingerprint processing of the headboard on which the word "Pig" was written?
A  With the exception of where the word "Pig" was written--where the question of fingerprint powder contaminating blood could arise--the entire headboard, side, and top should have been processed.
Q  Now, were there any other areas in the master bedroom that drew your attention in regard to the way they were processed, or lack of processing?
A  The north wall near the light switch, which is right as you come into the swinging door.
That was processed at a height beginning at 51 inches from the ground up to 63 inches, or in other words, a 12-inch area was covered.
    And to a depth of 6 inches in, a very limited area of processing.  Certainly, if this were the method by which entrance was gained to these premises, that is one area where heavy concentration should have been given and effected by the individual concerned with processing that for fingerprints.

MR. MURTAGH:  Your Honor, I would MOVE TO STRIKE that answer.  The witness has assumed a fact which was not in a hypothetical nor in evidence.

THE COURT:  Well, OVERRULED.

BY MR. SEGAL:
Q  Is there any indication that there had been, in fact, heavy processing for fingerprints done in that particular area?
A  There was no indication other than the small area that I indicated.
Q  Is there any other area in the master bedroom that attracted your attention in that same regard?
A  Yes, on the west wall.  There was a light switch and on the wall area between the wood frame of the closet and the doorjamb--eleven inches wide--there is a closet and there is a doorjamb.  The distance between those is eleven inches.  An area 3 inches wide and 12 inches long was processed.
    Again, a very, very negligent fashion or method of processing a crime scene, in my opinion.

MR. MURTAGH:  OBJECTION.

THE COURT:  SUSTAINED.  Don't consider that, members of the jury.  I will let him give his opinion as to what he would have done.  But to characterize what somebody else has done as "negligent" is not proper in the Court's opinion, and I ask you not to consider it.

BY MR. SEGAL:
Q  Is there any reason that you are aware of, based upon your observations and your knowledge and training and experience, why a competent fingerprint examiner should have limited the dusting to the area the way it was?
A  I can't imagine why anybody would do that.
Q  Are there any other areas in the master bedroom that attracted your attention because of the fingerprint processing, or lack of fingerprint processing?
A  Yes.  Both of the bureaus or dressers, whatever the proper term is, had glass tops.  The glass tops, instead of being processed from front to rear, side to side, were processed from front to a distance about halfway toward the rear on both bureaus.
Q  Is there anything particular about the glass tops that require special attention for fingerprint processing?
A  Well, glass is an excellent medium for retaining fingerprints and from reading the testimony, it is my understanding that there was a jewel box [sic] on one of those tables or bureaus.
There are some unidentified--I think an unidentified latent palm print on the jewel box.
    If this is unidentified--a jewel box in a bedroom is not something that every person invited into your house would be expected to touch.  If it is unidentified, it seems to me that it represents an opportunity for the processor of the crime scene for fingerprints to have paid special attention and concentration.
Q  Are you aware of any reason why--

THE COURT:  (Interposing)  Let me see counsel at the bench just briefly, will you please.


(Bench conference - unreported.)


THE COURT:  Members of the jury, we are going to take a recess until a different hour in the morning.  We will convene court tomorrow morning at 10:00 o'clock instead of 9:30.  And so we will take our overnight recess now.  We will let you retire.  Be back at 10:00 o'clock tomorrow morning, please.
    Don't talk about the case.  Have a good night, a safe trip home and back, and see you tomorrow morning at 10:00 o'clock.

(Jury exits at 5:03 p.m.)

THE COURT:  Take a recess until tomorrow morning at 10:00 o'clock.

(The proceeding was adjourned at 5:04 p.m., to reconvene at 10:00 a.m.  on Tuesday, August 14, 1979.)


F U R T H E R  P R O C E E D I N G S  9:00 a.m.

THIS CAUSE came on for further trial before the Honorable Franklin T. Dupree, Jr., United States Chief District Judge, and a jury, on Tuesday, August 14, 1979, at Raleigh, North Carolina.

(The following proceedings were held in the absence of the jury and alternates.)

THE COURT:  Any more trial briefs to be filed this morning?  I got this one about 8:30, and I have already, of course, read that from cover to cover.  Got any more?

MR. MURTAGH:  Judge, we had filed that--

THE COURT:  (Interposing)  Yeah.

MR. MURTAGH:  It's moot because it was in support of the--

THE COURT:  Thank you.

MR. MURTAGH:  But they are interesting cases.

THE COURT:  Well, tell me about this interesting case.  Whose Motion is it?

MR. MURTAGH:  I guess it is our Motion.

THE COURT:  All right.

MR. MURTAGH:  Judge, we feel that the introduction of psychiatric testimony is not warranted in this case.  In other words, this is not a situation in which the Defendant has pled not guilty by reason of insanity and the Government has offered affirmative evidence to show that he, you know, was sane, knew the difference between right and wrong and could adhere to the right.
    Rather, what has happened in the past is that a form of expert character testimony found its way into the record.  And what we disagree with is the starting premise on which Dr. Sadoff bases his opinion.
    It is his opinion that the crime has to be the product of a psychotic or sociopathic--

THE COURT:  (Interposing)  Well, let's get this thing in focus.  I think under Rule 404, under its express terms, that character evidence obviously can be introduced by a defendant.
There is no question about that at all.
    But there are two questions: first, can you introduce expert psychiatric testimony; that is, a man of good character and a fellow who would not commit this kind of crime; and second, is it the--and this is directed to Defendants--is it proposed to show that only psychotic people commit this kind of crime?
    There are two separate questions, as I see it.  Let's get an answer from the Defendant on that.

MR. SEGAL:  The question that we intend to pose to psychiatrists is not that only psychotic persons could commit these acts.

THE COURT: All right.

MR. SEGAL:  We intend to--

THE COURT:  (Interposing)  If that answers the question, then that is all I wanted to know.

MR. SEGAL:  I just wanted to add--

THE COURT:  (Interposing)  You just wanted to show that the man is a peace-loving, homemaking type of character who doesn't hack up his wife and children?

MR. SEGAL:  Yes, sir.  The typical kind of character question is traits of character that we traditionally always heard, but always in the form that has been very much criticized and judges and scholars about, you know, somebody comes in with some garbage about, "I live in the community.  I haven't heard he beat up on his wife."

THE COURT:  All right.  Now, you were going to add something.  Add that.

MR. SEGAL:  And in this instance, the rules have changed.  The Federal Rules of Evidence say: although you still allow the traditional mode in of this community hearsay, we now allow in, you know, specific evidence of the opinion of the witness as to character on specific character traits.
    And we will phrase the question, really, you know, in terms of peacefulness and non-violence and in the manner that Your Honor described.  And because the rules now allow the witnesses to give his or her opinion, that, in fact, is why psychiatrists are committed to say, "This is my opinion."  "What do you base it on," just as any other character witness can be cross-examined on, "What do you base it on?"
    It has always been one of the traditional forms of the prosecution cross-examination that when a witness got up and said, "He has got a good reputation for being peaceful, non-violent, not beating up on his wife."
    So, they ask him, "Who did you ever hear talk about that," attacking the basis for the opinion.
    Now, the Federal Rules admittedly--the Advisory Committee notes say, "We are expanding it.  We will let the personal opinion in."
    And as we noted in our Memorandum of Law, Your Honor, they specifically talked about psychiatrists being the kind of character person that are encompassed by the Rules.

THE COURT:  All right.  I have the answer to that question.  Go ahead.

MR. MURTAGH:  Well, Your Honor, I would just like to bring to the Court's attention that Dr. Sadoff's report to Mr. Segal, which was sent on April 23, 1970, and which is basically what he testified to at the Article 32 investigation, although not what he told the Government attorneys who interviewed him later, that the type of mental state that could account for the slaying of his wife and two daughters on February 17, 1970, in their home, would need to be one of the following: a psychotic individual with little or no feeling for other human beings--

THE COURT:  (Interposing)  Well, we are over that hurdle now.

MR. MURTAGH:  Okay.  Then there is another one: an acute psychotic reaction precipitated by drugs, toxins or organic condition.

THE COURT:  Well, we are over that.  He is not going to attempt to get that kind of evidence in.  That brings on a whole lot more talk.

MR. MURTAGH:  Yes, sir.  A seriously unstable psychoneurotic individual with impulsive behavior and poor ego control--and I don't think that is in point in this case.  A character and behavior disorder, sociopathic personality disorder manifested by the acting out of internal conflicts in an antisocial and destructive way.
    What Dr. Sadoff has said is that the crime has to be--can only be--the product of a mental disease or illness or character disorder.  He doesn't--

THE COURT:  (Interposing)  They have disclaimed, so I understand them, any intention of undertaking to offer that kind of evidence in this trial.  And he is nodding affirmatively.  So, let's forget that.

MR. MURTAGH:  That one is over.

THE COURT:  Yeah.

MR. MURTAGH:  The other thing that Dr. Sadoff testified to was based on his interviewing techniques and his experience, he could tell whether an individual was holding back or hiding anything.
    I think Dr.--

THE COURT:  (Interposing)  Yeah, now, that is something else.  That is not character.

MR. MURTAGH:  That is not character.  And let me just give you an example of this.  In Dr. MacDonald's interview with Dr. Sadoff, one of the first things he told him was that his wife went to class that night in English Literature.
    We know that is not true.  She went to a class in Child Psychology.  And while it may seem a minor point in terms of whether it was Child Psychology or English Literature--although we do think it was relevant that it was Child Psychology and what she heard that night and what she said in class--the point is that Dr. Sadoff is in no better position than this jury to determine the factual issues.  And what we stringently OBJECT to--

THE COURT:  Well, I am not going to let him invade the province of this jury on the question of credibility.  I think that is a question of--now, to the extent that he says he is a man of good character, that is something else.  And good people of good character arguably don't tell lies.

MR. MURTAGH:  Judge, if he does say that, it seems to me--

MR. SEGAL:  (Interposing)  Your Honor, I would OBJECT.  I have actually--I have frankly got better things to do, and would like a release from this morning's hearing if this is what we are going to hear.
    Mr. Murtagh is trying to re-try the 1970 Article 32 proceeding.  Now, he has got to wake up to the fact that in 1979 there is another case going forward here.  We are not re-trying that.  And for him to ask--and I OBJECT to his asking for an advisory ruling.  As a matter of fact, Your Honor, I am going to ask Dr. Sadoff what is his opinion of the character trait of truthfulness of Dr. MacDonald.
    And it is a proper character question.  I don't want to have Mr. Murtagh arguing the issue before I get a chance to ask my questions.

THE COURT:  Well, I am not going to decide his credibility.

MR. SEGAL:  All right.  Now--

THE COURT:  (Interposing)  But there are two facets to this thing: first, is he a man of good character.  And of course, that encompasses truthfulness.  But if you propose to show by an expert that because of certain psychological psychiatric tests and so forth that he is now telling the truth--in other words, a substitute for a lie detector test--then, of course, that brings on more talk, because we are going to have to find out what is the state of the art in all of those things.  And I am just not prepared to rule on that this morning.

MR. SEGAL:  I, too, understand, Your Honor.

THE COURT:  I think this thing is helpful in that we are able to zero in on what you propose to do.  And to that extent, it is like all the other things--all the other in limine motions--that we have heard and ruled on or got advisory opinions, if you will, on.

MR. SEGAL:  Well, let me make it clear: I set it out in my brief also on that.  But essentially we are going to ask Dr. Sadoff the same type of character questions that are traditionally available to ordinary non-professional witnesses.  And we will select the character quality that are relevant, for instance, we may not ask him, "What is your opinion as to honesty," since theft or non-theft is not an issue here.
    We might not ask him as to sobriety, which is a traditional character question, because we don't think sobriety is an issue.  Now, Your Honor, of course, we will ask as to some of the matters Your Honor suggests.  And I think we will ask him his opinion as to his character for truthfulness.
    Now, I don't think that necessarily--Mr. Murtagh is running off on a different tangent.  This is not 1970.

THE COURT:  I know.  But let's don't try Murtagh.  Let's just try our case.

MR. SEGAL:  All right; I agree.  I just don't want us to spend an inordinate amount of time.
We have a case to put on ourselves.  That should not be the debate this morning.  We need to edify the Court, I think, on the questions the Court has raised this morning.

MR. MURTAGH:  Your Honor, I do think it is relevant as to his past testimony at the Article 32 investigation, because I think we reasonably can expect that he would testify in conformity with that, else Mr. Segal would not put on.

THE COURT:  If he has asked the questions and there is no objection, I assume he will too.
But now, he is telling me he is not going to ask that type of question.

MR. MURTAGH:  Okay.

THE COURT:  And if I know you, you are going to object if he does.

MR. MURTAGH:  Yes, sir.

THE COURT:  While I won't rule on anything until it comes up, I can tell you that it is my present opinion that if you get into that kind of nebulous psychiatric area of inquiry, then I am going to have to be shown a whole lot more than I know sitting here this morning.

MR. MURTAGH:  Yes, sir.  Now, if he does testify about his examination of Dr. MacDonald, and I would assume he would have to as the basis for offering any opinion as to his character, that will bring out the psychological testing of Dr. Mack.  And Dr. Mack provided a report to Dr. Sadoff which he relied on in making his findings.  And Dr. Mack testified before the grand jury after we got a waiver from Mr. Segal.  Dr. Mack is not available to us at this time as a witness, because he has informed Mr. Blackburn by letter that he has been informed by Mr. Segal that he is a Defense witness, and therefore won't talk to us.
    I think whether he talks to us or whether he testifies or not, if they open the door on psychiatric testing in this case, we are entitled to bring out all of the reports, all of the testing, any of the statements of Dr. Mack that Dr. Sadoff either relied on or chose to ignore.

THE COURT:  Well, aren't you really just entitled to rebut whatever they put up?

MR. MURTAGH:  Yes, sir.

THE COURT:  Well, if they don't put up anything, then there is nothing to rebut.

MR. MURTAGH:  Well, what I am saying is that by not putting Dr. Mack on the stand and just taking Dr. Sadoff, I think that--

THE COURT:  (Interposing)  Well, Mack apparently is alive and under subpoena.

MR. MURTAGH:  Yes, sir.

THE COURT:  So, if they don't use him and they have used something which you think he can rebut, then you use him.

MR. MURTAGH:  All right.  Your Honor, the only other thing I can think of that pertains to this--

THE COURT:  (Interposing)  Lock that door back there, please, somebody.  I just can't listen and have people parading in and out.  We will let them in every 15 minutes if they want to.

MR. MURTAGH:  Your Honor, if they do open the door on psychiatric testing, psychological testing, I think that the Government is entitled to pursue that to the limit, whether it would be a matter that we would not be able to bring in our direct case.

THE COURT:  Well, I think you are entitled to proceed under the Rules of Evidence which govern both parties.

MR. MURTAGH:  Your Honor, we would also Move--if there has been any additional psychiatric or psychological testing other than that performed by Dr. Mack and Dr. Sadoff in 1970--we would Move for the results of that examination.

THE COURT:  They are under a continuing Order to produce that along with all the other reports; aren't they?

MR. MURTAGH:  That was my understanding, Your Honor.  But I don't know whether any additional testing has been done or is anticipated.  And I think--

THE COURT:  (Interposing)  Well, ask them.  Wade, have you done any more?

MR. SMITH:  Yes; we have done some more.

THE COURT:  All right.  Give them the report.

MR. SMITH:  We will make the stuff available.

THE COURT:  Okay.  We handled that one in a hurry.  Go ahead to the next one.
    Is that all?

MR. MURTAGH:  I think so, sir.

THE COURT:  I thought you were going to come down here and enlighten me on what 405 means.  That is what I came--studied half the night trying to find out.

MR. MURTAGH:  Well, Your Honor, many of the problems that we anticipated with this testimony have been resolved in the first fifteen minutes here by the Court's ruling and by the Defense's--

THE COURT:  (Interposing)  Do I take it, then, that you have no objection to his introducing an expert testimony, expert witness, to show that this Defendant is a man of good character?

MR. MURTAGH:  If we are talking about a man of good character, as that term is commonly understood in the Rules of Evidence as opposed to someone incapable of committing the crime--

THE COURT:  (Interposing)  We are past that.  He has disclaimed that.

MR. MURTAGH:  Well, let me confer.

THE COURT:  I am intrigued by the question that is raised relative to the applicability of 405; that is, whether or not you can even prove character by an expert witness.

MR. MURTAGH:  Well, Your Honor, I don't think--

THE COURT:  (Interposing)  Nobody in the world ever thought of it until the Seventh Circuit came up with that Stagg case.  And they didn't even cite 405.  But there it is.  And that is the only one that I know of anywhere and the only one we have been able to find.
    Have you fellows got any other cases on that thing?

MR. SMITH:  No, sir.

THE COURT:  The California case--

MR. SMITH:  (Interposing)  Yes, sir.

THE COURT:  Well, yeah.  That is under a California statute that they introduced that in, in that sex molesting case.  But that is not in point here.
    But the Stagg case is, as far as I know, the only one that anybody has come up with.  And they didn't address the point.  They just assumed that since 404 says it is competent that whoever you bring down here can prove it.

MR. MURTAGH:  Well, I think if Dr. Sadoff were a straight character witness as opposed to a Defense expert who examined Dr. MacDonald, there would be no question.  I think he would not be barred from testifying as a character witness just because he happens to be a psychiatrist.
    But I don't think the rules were intended to mix expert testimony and expert character testimony, because the rules treat them separately.
    We still maintain that this is an issue that will only confuse the jury, and it is something--what the case really hangs on, I believe, is the credibility, or lack thereof, of the Defendant's account of the supposed attack by the intruders.
    That is something that a jury, as opposed to a psychiatrist, is much more capable of determining.  This psychiatrist doesn't know anything about this case.  But that is really what he is going to be testifying to.

THE COURT:  Well, I don't know what he is going to testify to.  But you will be here.

MR. MURTAGH:  Yes, sir.

THE COURT:  If the question is asked, I will make a lot of book that if you think it is objectionable you will be on your hind legs real quick.

MR. MURTAGH:  Yes, sir.

THE COURT:  Anything else to come before us this morning?

MR. SEGAL:  No, Your Honor.

THE COURT:  All right.  I wish we had known that.  I figured if the lawyers estimated a half hour, that it would certainly take an hour.

MR. SMITH:  Judge, maybe the rule has changed: now you can divide.

THE COURT:  Have you got anything else to come up this morning?

MR. BLACKBURN:  I don't think we have anything else.

THE COURT:  Do you want to continue the argument on the Motion to Dismiss?  I see we have got the press here and they have got to have something to write about.

MR. MURTAGH:  Your Honor, I guess the other Motion in limine that is still pending--oh, no; I guess it would be the Defense Motion to Introduce Colonel Rock's report.  And we had filed a Motion in limine, I believe, to keep it out.
    I think, since Mr. Segal tells us that we are not re-trying the Article 32 and wanted me to wake up to that fact, I don't see how Colonel Rock's report is either relevant or competent evidence in the case.
    It really doesn't matter what he thought.  That was 1970.  This is 1979.

THE COURT:  Well, I had been promised and am at this moment handed the Defendant's Brief in Support of the Admissibility of that Report.

MR. SEGAL:  That was filed last week, Your Honor.

THE COURT:  Well, I say I was just handed it this moment.

MR. SEGAL:  I understood it was filed last week and it hasn't been before the Court.
    I would suggest deferral of the introduction of that matter until Your Honor has had a chance to read both the authorities and any response authorities.  I see no reason for an attempt to make a decision at this point.

THE COURT:  I don't either.  And I would be hesitant to go home this weekend with nothing at all to do about this case.  And so, I don't intend to do that.
    All right.  We will keep that one on hold.  He won't bring it up until--have you responded to this?

MR. MURTAGH:  Your Honor, I understood that to be a response to our Motion in limine.

THE COURT:  To yours?  Do you want a surrebuttal?

MR. MURTAGH:  We may, sir.

THE COURT:  Okay.  We will recess as informally as we came in and let our friends back there phone this in.  We'll see you at 10:00 o'clock.

(The proceeding was recessed at 9:21 a.m., to reconvene at 10:00 a.m., this same day.)


F U R T H E R  P R O C E E D I N G S  10:00 a.m.

(The following proceedings were held in the presence of the jury and alternates.)

THE COURT:  Good morning, ladies and gentlemen.  I thought I would tell you that in this matter of scheduling, you just can't win.  We had a motion to hear this morning that the lawyers estimated would take a half hour, so I gave them an hour.  Would you believe it didn't take but 20 minutes?
    You have a witness, I believe, who was on the stand?

MR. SEGAL:  Yes, sir; Mr. Osterburg.

THE COURT:  Any further questions of him?


(Whereupon, JAMES OSTERBURG, the witness on the stand at the time of recess, resumed the stand and testified further as follows:)

D I R E C T  E X A M I N A T I O N  10:01 a.m.   (resumed)

BY MR. SEGAL:
Q  Professor Osterburg, yesterday when we adjourned, we were talking about matters that you observed and opinions you expressed about the manner in which the crime scene at 544 Castle Drive was processed for fingerprinting.  Now, I want to show you a group of photographs, if I may, and ask if you can identify them.  They have been marked for identification as Defendant Exhibits D-59 through 64.

(Defendant Exhibits 59, 60, 61, 62, 63 and 64 were marked for identification.)

A  Yes; I recognize D-61.
Q  And would you look at the next two black and white photographs, please, that are there, and see whether those also are familiar to you or you recognize them?
A  D-60 and D-59; yes, I do.
Q  What do those photographs represent to you?
A  Serially, D-59 is the swinging door between the utility room and the master bedroom, and it is the photograph taken from the utility room side when the door is closed.
Q  And do you know when that photograph was taken?
A  It was taken Saturday, August 11th--last Saturday.
Q  1979?
A  1979.
Q  Were you present at the time the photograph was taken?
A  Beg your pardon?
Q  Were you present at the time the photograph was taken?
A  Yes, sir.
Q  Does it accurately represent what you observed at that door at that time?
A  Yes; it does.
Q  Would you also examine the other two photographs, and I want to ask you the same questions as to whether or not you were present and whether they represent what you saw?
A  May I explain why this was taken?
Q  In one second--just so we get the background out, if we may, Professor Osterburg, as to the other two black and whites.
A  Defendant's Exhibit 60 is another photograph of the swinging door between the utility room and the master bedroom.  It is now swung open into the utility room, but it is the photograph of the door when closed on the master bedroom side.
Q  Was that photograph also taken at the same time in the same place, with you present?
A  It was.
Q  Does that represent what you also observed at the time the photograph was taken?
A  Yes, sir.
Q  And would you look at the third of those black and white photographs?
A  The third photograph is labeled Defendant 61.  It is the entrance door to the utility room.
That is, if you use that door, you come inside from outside or you go outside into the back yard.  This is a view from the utility room, so that if opened, one would then proceed out into the back yard.
Q  Now, was that photo also taken at the same time, in the same place, under the same circumstances, as the prior two photographs that I have just asked you about?
A  Yes, sir.
Q  Now, would you go back to the first photograph?  Would that help you in any way to illustrate the comments you were making yesterday about the conclusions you had arrived at concerning the way the fingerprint processing was conducted in that particular room?
A  It could.
Q  Would you then, please, show that to the jury and explain why you think that that does not comport with proper crime scene fingerprint processing?  Perhaps I can hold it up for you.
A  This is the door that leads from the utility room into the master bedroom.  Many people opened the door by putting their hand on the panel.  Sometimes one puts the shoulder on the panel.  Other times you use the door frame.  But certainly processing of a door for fingerprints in a crucial area would require that the entire door lower than the panel, but particularly the panel, be processed with fingerprint powder, to see whether there are any palm prints, any fingerprints present.
Q  Do you know of any reasonable explanation consistent with good crime scene fingerprint processing why the rest of that door would not be processed in the fashion you described?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  OVERRULED.

THE WITNESS:  I do not.

BY MR. SEGAL:
Q  Would you now take the next of those photographs and tell us what that represents in regard to your statements yesterday about the way the fingerprint processing took place?
A  This is a photograph of the other side of the door facing the master bedroom, if closed.  For photographic purposes, it was pushed open.
Q  Permit me to hold that, if I may?
A  In this photograph, we are commencing to see evidence of fingerprint processing on the panel and the frame of the door, but to a certain height and to a limited degree.  Where the processing was done, some evidence of fingerprint touching is starting to manifest itself.
That is, the whole door should have been done this way, and on both sides.
Q  Do you know of any reason consistent with good crime scene fingerprint processing why the entire door should not have been processed at that time?
A  I do not.
Q  Will you take the third of the black and white photographs, please, and tell us what that illustrates?
A  This is the door leading to the outside, if one is going outside from the utility room, or leading to the inside of the premises if one is outside in the back yard entering through the utility room entrance.  It is an example of partial processing of the area where surely persons coming in could have, and might have, touched.
    And in particular, I direct your attention to the light switch area, which shows no evidence of processing whatsoever.
Q  Do you know of any reason, again, consistent with good crime scene fingerprint processing, why the entire areas you have described--including the light switch--should not have been processed?
A  I do not.
Q  Now, you also had presented to you certain color photographs.  Could you take the two photographs that are marked D-62 and D-63 first of all, and tell us what they represent to you?  Have you ever seen them before also, sir?
A  I have seen these before.  D-62 is a color photograph of the north bedroom door, the side facing inside the bedroom.  That is, if the door is closed, this is the side that you see of that door in the bedroom.  It shows a little evidence of processing on the doorjamb.
Q  Again, let me hold that, if I may, please?  Just to complete the record, was this photograph taken at the same time and under the same circumstances as the other three you have testified to?
A  It was.  This photograph shows some evidence of processing on the doorjamb, on the edge of the door--that is, the very thin part of the door--the inch and a half, two inches, whatever it is--no processing around the light switch, and certainly no processing of the rest of the door on the inside.
Q  Do you know of any explanation consistent with good crime scene fingerprint processing why the entire door and the light switch should not have been processed?
A  I do not.
Q  Would you take a look now at the remaining color photograph and tell us what that represents?
A  This is the same door, photographed showing the door as it would appear to you if you were entering the bedroom and the door were closed.  It is open for purposes of photographing against the wall of the bedroom.
    It manifests evidence of fingerprint work being done in some areas--some around the handle, none on the panel here.  Again, it is inadequately processed.  Why a person would select that particular location and not the rest of it, I am mystified.
Q  Do you know of any explanation consistent with good crime scene fingerprint processing that could explain the fact that the areas you pointed out were not processed?
A  I do not.

MR. SEGAL:  Your Honor, may the photograph be published to the jury?

THE COURT:  Yes.

(Defendant Exhibits Nos.  59 through 64 were received in evidence.)

(Exhibits passed among the jury.)

BY MR. SEGAL:
Q  Now, let me move on to a different area of the house in regard to fingerprint processing.
Did you examine the living room, particularly the area where the sofa, chair and coffee table are located?
A  I examined the walls of the living room in back of where the sofa was located.
Q  Was there any particular reason why you examined that area?
A  Well, that is the area in which Dr. MacDonald was sleeping on the couch, and I believe Mr. Medlin testified that when he attempted to rise, he placed his hand on the wall, in rising.
Q  You are describing the experiment that Mr. Medlin testified to here in Court about lying down on the same sofa?
A  Yes.
Q  Now, what, if anything, did you observe as to how much fingerprint processing was done in regard to the area around the walls where the sofa is located?
A  The fingerprint processing in the living room was indeed minimal.  For a height of 36 inches on the wall--the southeast wall of the living room--to a depth of 11 inches from the hallway going into the living room, processing was done, and that is the extent of the processing on the southeast wall.
Q  Let me ask you, if you would, to step down to the model so that when we talk about these numbers--if you would indicate on the model--that we might all be able to perhaps see it more graphically.
A  This area right in here, 36 inches and 11 inches deep, was processed.  Nothing in back of that was processed.
Q  You say nothing in back of the couch--did you remove the cushions that appeared here on the couch also, in your examination?
A  Yes, sir.
Q  Did you find any evidence of fingerprint powder or fingerprint evaluation behind the cushions?
A  I did not.
Q  Did you find any fingerprint examinations at all anywhere on the wall--this wall where the sofa is located--other than this area near the doorjamb that you described?
A  I did not.
Q  Do you know any reason consistent with good crime scene fingerprint processing to explain why that area was not processed for fingerprints?
A  I do not.
Q  What is your opinion of the failure to process that area, considering the facts known to the fingerprint processor at that time?

MR. MURTAGH:  OBJECTION.

THE COURT:  I believe I will let him say what his opinion is.

MR. SEGAL:  Yes--

THE COURT:  (Interposing)  Go ahead and tell us what that opinion is.

THE WITNESS:  In my opinion, a prime opportunity to develop fingerprints or evidence of intruders was missed by not processing that area of the wall.
    This is an area where a struggle was--is purported by Dr. MacDonald to have taken place.
People could easily have reached over and touched that wall, leaving a palm print--possible fingerprint; and I am just--I just can't believe that it was not processed.

BY MR. SEGAL:
Q  Now, did you also have occasion to see a plastic flower pot at the house when you visited?
A  Yes.
Q  All right, what flower pot did you see?
A  There was a flower pot standing on top of the table which was now arighted.  The table was arighted and the flower pot was standing up.
Q  Was that a white plastic flower pot?
A  That was a white plastic flower pot.
Q  Now, did you examine that pot in terms of whether it had ever been processed for fingerprints?
A  I did.
Q  And what, if anything, did you find, based upon your examination?
A  I found no evidence--

MR. BLACKBURN:  (Interposing)  Your Honor, we would OBJECT to this, and may we approach the Bench on this?

THE COURT:  Yeah, let's come up on that one.


B E N C H  C O N F E R E N C E

MR. BLACKBURN:  I had been informed by counsel as to the flower pot--I'm sorry.  I had been informed by counsel for the Defense that the flower pot in the living room, that is there now, is not the original one--that the original one was broken into pieces which were given to the Defense Saturday, as I understand it.
    For Mr. Segal to ask about this new flower pot is very misleading to--

MR. SEGAL:  (Interposing)  I will develop that--I will gladly develop that, Your Honor.  Let me just--

MR. BLACKBURN:  (Interposing)  My point is--

THE COURT:  (Interposing)  Let me just ask the witness: do you know whether or not the flower pot that you looked at was the one that was in there when this crime is alleged to have taken place?

THE WITNESS:  I have heard that it may not be the flower pot--

THE COURT:  (Interposing)  All right.  I will SUSTAIN the objection.

MR. MURTAGH:  Your Honor, the reason there is an additional flower pot is that they made a filmed recreation and they needed a flower pot for it.

(Bench conference terminated.)


BY MR. SEGAL:
Q  Did you see any other evidence of a white plastic flower pot in the living room of the MacDonald house when you visited last Saturday?
A  Yes.
Q  Where did you see evidence of another flower pot?
A  Oh, it was--first of all, the flower pot was broken into several pieces--ten, eleven, something like that, and they were scattered around the living room.
Q  You say around the living room--in any particular area in relationship to where the coffee table and sofa were?
A  Well, in the coffee table area and spread out toward the kitchen and the west wall--toward the west wall.
Q  Now, when you first looked at that scene in the living room last Saturday, did you know that the white plastic flower pot that was sitting on the coffee table was, in fact, not the one that had been there on February 17, 1970?
A  No, I assumed it was the flower pot being talked about.
Q  However, you subsequently, as you continued to process--examine that room, to discover the pieces of this other pot, is that right?
A  Yes.
Q  Were those pieces collected by anyone?
A  Yes, they were.
Q  And did you have occasion to examine those pieces to see, first of all, whether they formed a plastic flower pot?
A  Yes.,
Q  And what do they form?
A  They do form a plastic flower pot.
Q  Did you find any indication that that pot had ever been processed for fingerprints?
A  I did.
Q  And what did you find in that regard?
A  I found it was thoroughly processed.
Q  Do you know of any reason consistent with good crime scene processing that an item such as that at the crime scene should be left there where it could be broken into 11 pieces or more and scattered on the floor?

MR. MURTAGH: OBJECTION, Your Honor.  MOVE TO STRIKE.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  Do you have any idea--well, how did you gain access to that particular house--were you able to just walk right into the house?
A  No.
Q  Tell us as the process or about what you had to do for you personally to get access to the house?
A  Mr. Bidwell, a CID agent on Fort Bragg Post, had to meet me and others in the party, open the door with the lock, break a seal--a railroad--guess it's a railroad seal, and open the door so that we could gain access.
    Upon departing, another seal was placed on the door patch, and the lock was placed there, too; and it was resealed.
Q  Did you look at the kitchen area of the MacDonald house?
A  I did.
Q  All right, and examined that in regard to the fingerprint processing that was done there?
A  I did.
Q  Would you tell us, please, what you observed about the extent of the fingerprint processing?
A  The two doors which--drawers which would contain knives were thoroughly processed.  The doors below the kitchen sink, one of which was now removed--the remaining doors were not processed.

MR. MURTAGH:  Your Honor, we would OBJECT.  If he didn't see any other door, how does he know whether it was processed or not?

THE WITNESS:  I didn't speak about that, Counsel.

MR. MURTAGH:  I believe you did.

MR. SEGAL:  Let me clarify it rather than having a meaningless argument.  I think, again, if we use the model here, perhaps you can point, Mr. Osterburg, to the portion of the kitchen--see if we can turn the model around--and I am going to hold it up on end so perhaps the members of the jury can see it better.
    Members of the jury, if I can just stand up over here to help Mr. Osterburg.

THE WITNESS:  These two drawers--the extreme left and the extreme right drawers--were well processed.  This drawer was missing, so I can't speak to whether it was or wasn't processed.  The remaining three doors below were not processed.
Q  All right, would you be seated.  Once again, I ask, Mr. Osterburg, do you know of any reason consistent with good crime scene fingerprint processing why the balance of those doors in that area were not processed?
A  I do not.
Q  Did you examine anything--any other area in the kitchen during the course of your going through this house?
A  I examined the other walls and saw no evidence of processing on those.  I examined the door of the kitchen leading to the back yard and saw no evidence of processing on that.
Q  Did you examine the refrigerator in the MacDonald kitchen?
A  Yes; I did.
Q  What, if anything, did you find there?
A  I found that there was food still stored in the refrigerator, apparently food from some earlier period, since the prices on it reflect the difference in prices these days.
Q  Do you have a photograph there that illustrates that?
A  I do.
Q  Does this photograph marked D-64 indicate what you found in the freezer of the kitchen in the MacDonald house?
A  Yes, sir.
Q  Was the freezer, in fact, operating and functioning, holding the food and items in a frozen condition?
A  Yes, sir.
Q  Do you know any reason, consistent with good crime scene processing, why that food be kept there for the length of time it had been?
A  I imagine the Army thinks it's still preserving the crime scene.

MR. MURTAGH:  OBJECTION, Your Honor.

MR. ANDERSON:  OBJECTION.

THE COURT:  Well, I'll ask the jury not to consider the witness' imagination.

BY MR. SEGAL:
Q  Let me put it this way again: do you know any reason, consistent with good crime scene processing, why a criminal investigator would preserve the food in the freezer for nine years?
A  Not that I know of.  I don't know.  If it were a poisoning case, of course.
Q  By the way, to your knowledge, is that a self-defrosting refrigerator?
A  No; it is not.
Q  How would the refrigerator be in the condition it is, then, if it is not a self-defrosting refrigerator?
A  The CID agent comes twice yearly to defrost the refrigerator.
Q  Did you learn that from Mr. Bidwell, the CID agent at the scene?
A  I inquired of him: did he defrost it?  And he answered, "Yes."
Q  For nine years he had been defrosting the food in the refrigerator?

MR. MURTAGH:  OBJECTION, Your Honor, on the grounds of irrelevancy.

THE COURT:  SUSTAINED.  Counselor, there must be some limit whereby we can explore matters that were as tangential as this.  I just don't think that is relevant.  Objection sustained.

MR. SEGAL:  I can make an offer of proof in that regard if Your Honor thought it necessary, but I have other matters I want to proceed with.

THE COURT:  Well, go ahead.

BY MR. SEGAL:
Q  Now, I want to ask you about the processing in the bedrooms of the children.  Did you have occasion to look at the headboard of the bed in Kimberly's room?
A  Now, Kimberly's room is--
Q  (Interposing)  That's the south bedroom.
A  There was one room that didn't have a bed in it, and I have forgotten now which one didn't and which one did.
Q  Let me show what has been marked previously in evidence now, Government Exhibit G-637 and then G-335.  Just permit me to rearrange this a bit.  I want to ask whether you have ever had occasion to examine this particular headboard here in court which has previously been introduced by the Government as having come from Kimberly's bedroom.
A  Well, I observed what I see now.
Q  Now, what can you tell us about the extent of the fingerprint processing on this headboard?
A  I think it is quite apparent that the entire headboard has not been processed, that the side of this board has not been processed in this area that I am indicating, that some processing was done here.
Q  Now, let me reverse the board--first of all, will you estimate what percentage of the face of this headboard has been processed for fingerprints?
A  Forty percent--a third.
Q  Now, let me show you the reverse side of this particular headboard and let me ask you to tell us what would be the case in regard of fingerprint processing there?
A  Well, again, there is partial fingerprint processing in the areas being indicated by the pointer, and up here on the top of the headboard.
Q  Finally, in that regard, let me show you the footboard that has previously been identified by the Government as coming from the same bedroom, and ask you to tell us to what extent the face side of the footboard has been processed for fingerprints?
A  Well, I think it is apparent to the jury, but let me point out the area using the pointer.

MR. MURTAGH:  Your Honor, I would MOVE TO STRIKE that comment.

THE COURT:  Well, don't consider that, members of the jury.  I will assume that the jury will know what is apparent to them and what is not.

MR. SEGAL:  You mean it is self-evident, Your Honor?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  Well, why don't you, then, just point out just exactly what you observed, Professor Osterburg, so that we will know what exactly what is on the headboard [sic]?
A  Footboard.
Q  Footboard--I beg your pardon.
A  The footboard is painted yellow.  Those areas with darkened smudges or darkening indicates the application of fingerprint powder, and it is in the area I am showing with my pointer, and that includes the top of the footboard also, some of the post and the top of the post.
Q  Now, let me show you the reverse side of the footboard and ask you whether there is any evidence of fingerprint processing here.
A  Yes, there is.  Once again, using the pointer, I am indicating the area that was processed with fingerprint powder, and the top of the board is processed to approximately a bit beyond midway.

MR. SEGAL:  Will you return to the stand?

BY MR. SEGAL:
Q  Professor Osterburg, is there any reason that you know of, consistent with good crime scene fingerprint processing, why the fingerprint processing on those headboards should have been limited to the areas that they were?
A  No; I do not.
Q  Let me ask you a more general question: is fingerprint processing, considering the size of the MacDonald house--is that a complicated and lengthy process?
A  It's not complicated.  It could be lengthy.
Q  Would you tell us, please, now having been to the MacDonald house, having observed photographs as the way it appeared with the furniture in it, being aware of the information that the investigators had originally, how long it would take, in your judgment, for a competent fingerprint processor to have totally processed the crime scene in a manner that you believe is consistent with good crime scene processing?
A  We have to define "processing," I believe.
Q  (Interposing)  Would you do that?
A  --to make the jury understand.  The application of fingerprint powder to objects does not take--such as this object in front of you--does not take a great deal of time.  That could be done in ten minutes.
    If fingerprints are found on the object as the result of processing, then it is incumbent up-on the fingerprint processor to record those fingerprints.  That can take some time.  By recording, I mean: what is the location, and also recording the details of the fingerprints so that they subsequently may be examined in the fingerprint bureau as a result of the photographs.
    Now, photographing is not an extremely difficult process, but it takes some time to change the film and record and keep the necessary information as to where the fingerprint was located.  That's the most time-consuming part of it--is the bookkeeping.
Q  Now, having taken into consideration all those factors, do you have an opinion as to how long it would take a competent fingerprint processor to have processed the entire crime scene in the matter that you consider necessary and appropriate for a crime of this magnitude?

MR. MURTAGH:  OBJECTION to the form, Your Honor.

THE COURT:  OVERRULED.

THE WITNESS:  I believe it could be done in two days.

BY MR. SEGAL:
Q  By how many persons?
A  Two people.
Q  Now, you also examined the crime scene as processed by Mr. Medlin and Mr. Turbyfill and you have read their testimony and you have seen photographs of their work.  In your opinion, how long would it take to do the fingerprint processing to the extent that these persons did it at the crime scene?
A  Considerably less than two days, if they were only doing that.

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  SUSTAINED.  Don't consider that, members of the jury.

BY MR. SEGAL:
Q  I would like to ask you now some matters about the photographing you just mentioned.  You said something about photographing fingerprints.  How difficult or how simple is the process of photographing fingerprints and why is it done in connection with crime scene investigation?
A  Well, first of all, it is a detail of someone touching something.  We don't know who touched it.  People in the home obviously will have touched many of the items that are processed.  But intruders might have touched them also.
    Consequently, any fingerprint that is developed showing ridge lines--now we are not talking about a complete fingerprint.  Fingerprints found at crime scenes are generally partial fingerprints.  They are only part of the finger.
    These are photographed so that a person may--in the fingerprint bureau or back where the fingerprint files are kept and the record files of possible people--suspects--may also be available--so that the fingerprint examiner, who generally is a different person from the person who processes crime scenes, may compare the latent fingerprints--photographed latent fingerprints--with record prints either in the file or taken expressly by inking a person's set of fingers for this purpose.
Q  Professor Osterburg, is it most common to photograph fingerprints at a crime scene and take them back for comparison, or is it most common to try to lift fingerprints at a crime scene and take the lifts back for comparison?
A  One always photographs first, then lifts.
Q  Are there instances, or is it frequent or infrequent that, in fact, the prints are not even lifted from the scene once you have taken photographs?
A  Very often, you do not even bother to lift.
Q  And why is that?
A  Because you have a photograph of it.
Q  How difficult is it to take a photograph of a fingerprint?
A  Well, it is extremely simple.  There is available an instrument called a fingerprint camera.  It is designed so that, if you can count to ten and pull a switch and know how to insert the film, automatically the fingerprint will be in focus, if the fingerprint camera is placed in contact with the surface bearing the fingerprint.
    It is a camera built so that a one-man police department could take a fingerprint if it had the equipment and needed to.
Q  How long has the fingerprint camera that you have been describing been in general availability to law enforcement agencies?
A  I really don't know the history of it, but I first became familiar with it in 1941 or '42, and I was told that that camera was about ten years old.
Q  There has been testimony in this case about the difficulty Mr. Medlin had to get first, a lift, and then a photograph of a fingerprint of the back door of the MacDonald house, which was believed to be the egress and ingress of the intruders.  Have you read his testimony in that regard?
A  I have.
Q  Do you have any opinion as to whether or not, if Mr. Medlin was able to raise a visible impression--that is, get ridge lines of some sort--it is possible to also get an adequate photograph for comparison purposes?
A  It certainly should be.
Q  Is there a situation ever in which you can see a fingerprint and not be able to capture it by photograph?
A  If it can be seen, it can be photographed.
Q  Now, Mr. Medlin described for us the fact that there were some paint crackles involved when he saw those particular fingerprints on the back door, and that apparently it had something to do with the difficulty of photographing or re-photographing that.  Did you read that testimony?
A  I did.
Q  In your opinion, did those matters described by him prevent him or any other competent fingerprint processor from getting a clear photograph of those prints?

MR. MURTAGH:  Your Honor, I would OBJECT unless he has seen the photographs.

MR. SEGAL:  He read his testimony.

THE COURT:  I thought the question assumed that no photographs were taken because of some crackles in the paint.

MR. SEGAL:  He could not get a clear photograph by his own testimony, as I recall it, Your Honor.

THE COURT:  All right; OVERRULED.

MR. MURTAGH:  Your Honor, I believe there was also testimony from Mr. Medlin that it was re-photographed.  Unless the witness has seen the actual object and the photograph--

THE COURT:  I will let him answer that.  Have you seen all the photographs that Medlin took?

THE WITNESS:  I have seen none.

BY MR. SEGAL:
Q  Have you read his testimony?

THE COURT:  I will SUSTAIN the objection.

MR. SEGAL:  I asked him whether he has read all of his testimony in which he described the difficulty.  I only want to find out whether that explanation is satisfactory in view of another expert's view of how that should be done.  He can show him all the photographs he wants, Your Honor.  We don't object to that.

MR. MURTAGH:  Your Honor, my objection is not to showing the witness the photographs, but he is testifying on the basis of not having seen any of these photographs as to the competency, or lack thereof, of the photographs taken of the fingerprints.  If he hasn't seen them, he just doesn't know.

MR. SEGAL:  I have not asked him that question.  I have asked about Mr. Medlin's explanation and whether that is consistent with what we know about our ability to get a good photo.

THE COURT:  Can you answer that question?

THE WITNESS:  Yes; I believe I can.

THE COURT:  Well, answer it yes or no.

THE WITNESS:  Can I have that question repeated?

THE COURT:  He wants to know whether or not you think that Medlin's explanation will hold water, so to speak.  Just answer yes or no.

THE WITNESS:  No.

THE COURT:  Very well.  Is that what you wanted him to say?

MR. SEGAL:  Yes.

BY MR. SEGAL:
Q  Let's assume for a minute there that the fingerprint processor was having difficulties in getting an adequate photograph of the fingerprints on that back door.  Based upon your training, knowledge and experience, are there other proper crime scene processing techniques that should have been used?
A  Yes.
Q  And what are they, if you can describe them, please?
A  I would remove the door and place it in some situation so that it cannot be disturbed or touched until such time as someone who could take a photograph of it, or until it could be brought to some place where it could be photographed--until that could occur.

MR. MURTAGH:  Your Honor, I would MOVE TO STRIKE that testimony unless the witness is in a position to state whether he knows whether a portion of the door was removed or not.

MR. SEGAL:  We have Mr. Medlin's testimony on that subject, Your Honor, at length.

THE COURT:  OVERRULED.

BY MR. SEGAL:
Q  Is there any danger in removing that screen door from the hinges that the fingerprint powder will fall off and that you will lose the detail of any ridge lines or impressions that might have been visible?
A  I have never heard of that before, and we see fingerprint powder lasts nine years.
Q  You are talking about the fingerprint powder right here on the headboard?
A  And what I observed in the house.
Q  Tell us something, please, about your experience about the adhering quality of fingerprint powder?
A  Well, fingerprint powders are compounded expressly to adhere to the secretions that are on the finger--namely, perspiration, some of the oils that we pick up from our skin, the material that might be present settling from the air that is oily.  And the fingerprint powders are developed so that they will selectively adhere to that material, but not to background material in general.
    The whole purpose of processing a fingerprint which is invisible--and it is called the latent or hidden print in the trade--the latent print.  The purpose of processing objects is to make those latent or hidden or invisible prints visible.  And in trying to do that, you select a fingerprint powder which will provide contrast between the backgrounds and the object being processed.
    For example, on this yellow headboard, you would not use a white fingerprint powder.  You would use properly, as they did, a black fingerprint powder.
Q  Are there more than one color of fingerprint powder available for crime scene processing?
A  Yes; there are.
Q  Let me ask you about the matter of some testimony by Mr. Medlin about a footprint that he saw on the floor.  How, first of all, should a footprint apparently made in blood be protected at a crime scene, if proper standards were used?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  To the form of the question?

MR. MURTAGH:  The form; yes, sir.

THE COURT:  I will SUSTAIN that.

BY MR. SEGAL:
Q  Based upon your knowledge and experience, what is proper practice--good police practice--for preserving footprints that may be made in blood at a crime scene?
A  Well, as with fingerprints, they are photographed.
Q  Aside from photographing, are there any other techniques or methods one would employ consistent with good police practices to preserve and protect such an item as a footprint in blood?
A  Are you referring to the time that may intervene between when you are able to take the photograph and other processing is going on?
Q  Yes; let's start with that time frame first.
A  Well, obviously something must be done to avoid accidental walking on the footprint, assuming there are people for some reason necessary--who are there necessarily at the crime scene.  Obviously, that should be kept to a minimum.  Placing some object of warning--such as a chair, possibly, over the impression, the chair being situated in an unusual place, depending upon where it is--with a sign possibly placed on the chair saying, "Danger--foot-prints.  Do not touch.  Do not disturb."
Q  Well, now, if it is possible for a footprint to be seen apparently in blood on the floor, which shows individual characteristics that are visible to the naked eye, is it possible to have that photograph and show the same individual characteristics in the photograph?
A  Of course it is possible.
Q  Does that present any enormous technical difficulty for a competent fingerprint processor?
A  Well, this is a problem for a photographer.  I can see no reason why it should.  As I said before, if you can see it, you can photograph it.
Q  There is some testimony in this matter by Mr. Medlin in regard to a footprint on the floor of Kristen's room, where the suggestion was that there was light coming from a window which created difficulty in photographing of prints there and other matter in that room?

MR. MURTAGH:  Your Honor, I would MOVE TO STRIKE that question.  I don't believe it comports with the witness' testimony at all.

THE COURT:  Well, I will SUSTAIN the objection.  I won't strike the question, but I will sustain the objection to the question; but I will allow counsel to show whether or not there is such evidence in the record.

MR. MURTAGH:  Your Honor, at this time we would tender counsel a transcript.

MR. SEGAL:  It is very generous of the Government to make it available at this time, Your Honor.

MR. MURTAGH:  OBJECTION.

MR. SEGAL:  I would like the opportunity after the break to go back to the subject matter.

THE COURT:  Very well, you may have that; but we won't have your comments in advance of that.

BY MR. SEGAL:
Q  Let me ask you this--we will come back to this particular problem or non-problem in a little while.  Do you have an opinion, Mr. Osterburg, as to whether or not there is a scientific explanation for the fact that Mr. Medlin says he was able to observe ridge lines on the bloody footprint on the floor, but he was unable to photograph and that they disappeared by the time of the photograph of them?

MR. MURTAGH:  OBJECT to the form, Your Honor.  That's not what the witness testified to.

THE COURT:  SUSTAINED.

MR. SEGAL:  It is my recollection that they did, sir.

MR. MURTAGH:  May we approach the Bench, Your Honor?

THE COURT:  I sustained the objection.

BY MR. SEGAL:
Q  All right, let me put this question to you: is there any realistic possibility in your mind, based upon your knowledge and training, that between the time a bloody footprint could be seen on the floor by Mr. Medlin and the time that the floor section was taken up and carried back to Fort Gordon that the ridge lines he observed would disappear on the floorboard and become lost?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  OVERRULED.

THE WITNESS:  I have seen the floorboard, and there is a bloody footprint impression on the floor.  There are no ridge details in the bloody footprint.
    I cannot see any reason or explanation that is reasonable why those areas of the bloody footprint bearing the ridge details would selectively disappear while the rest of the imprint would remain.  I just don't understand that.

MR. MURTAGH:  OBJECTION, Your Honor, the witness--

THE COURT:  (Interposing)  I ask the jury not to consider this further statement.

BY MR. SEGAL:
Q  What I would like for you to address yourself to also: is there any scientific explanation that you are aware of that would explain why they would be present and visible to Mr. Medlin at the crime scene and would no longer be present or visible to other persons when they are taken back to Fort Gordon to the crime lab?

MR. MURTAGH:  OBJECTION.

THE COURT:  SUSTAINED.

MR. SEGAL:  May we see Your Honor, please, at the Bench?

THE COURT:  Yes.


B E N C H  C O N F E R E N C E

MR. SEGAL:  Your Honor, Mr. Medlin's testimony, as I recall it, was that he said he saw some-thing--he stated here in Court that he could identify it, but that nobody else could see it.
    My point is that there is no scientific explanation that supports his conclusion that they disappeared.  I cannot understand his conclusion that they disappeared.  If the Government's really rather speculative testimony of Mr. Medlin, that he saw something and it disappeared, and he could offer himself--no scientific explanation was allowed in.
    Now, all we ask is, as a scientist, does he know reasons from a scientific standpoint why this would happen.  It escapes me as to why we cannot ask him that, sir.

MR. MURTAGH:  Your Honor, may I respond?

THE COURT:  Yes.

MR. MURTAGH:  I believe Mr. Medlin testified that he could observe the ridge lines using oblique lighting that was being moved around the footprint; and that the photographer, Mr. Page, was having difficulty--in other words, when you could see the ridge lines you were also looking into the light, and apparently what the human eye can adjust to is not what the camera can adjust to.
    He further testified that after he had identified and turned the exhibit, I believe, over to Mr. Chamberlain who was the chemist, it then became a blood exhibit.
    The thing was cut out and the board separated.  We provided an adequate explanation by way of the testimony of Dr. Chamberlain, and, I believe, Mrs. Glisson, that the blood was taken off in testing it.
    They specifically pointed out, I believe, their initials are visible on that area; and what this witness is doing is ignoring one aspect of the testimony which he may or may not have read, and it is being made to appear that there is no explanation as to why the blood isn't visible.  I think that is unfair--

MR. SEGAL:  (Interposing)  I don't see why I can't ask a question because he wants to argue his case.

THE COURT:  I think that the objection that you raise is one that you can adequately cover on cross-examination.  If you simply want to show that there is no reason why a footprint showing ridges, and nothing else appearing, no evidence of anything, having--why it wouldn't be visible a week from now--if that's your question, I will let you ask that.

MR. SEGAL:  Yes, sir.  Again, I am asking, is there a scientific explanation for that.  I don't want him to speculate, but I will amend the question as Your Honor suggests.

THE COURT:  All right, go ahead.

(Bench conference terminated.)


BY MR. SEGAL:
Q  I want to make reference to certain testimony by Mr. Medlin in which he indicated that when he observed of the footprint on the floor, that he was able to observe both form and outline and some ridge detail?
A  Yes.
Q  He also testified that later on, when that floorboard was cut out and taken back to Fort Gordon, that other examiners could not find it, or he did not see it there--

MR. MURTAGH:  (Interposing)  OBJECTION, Your Honor.  I don't believe that's what Mr. Medlin testified.

THE COURT:  Well, I can't referee that one because Medlin's testimony was two or three weeks ago, and I just don't recall it in that much detail.  I will OVERRULE the objection, but if you have his testimony then you can bring it out on cross-examination if you care to.

BY MR. SEGAL:
Q  Mr. Medlin subsequently testified when he was taken back to Fort Gordon that other examiners and he apparently were not able to then see the ridge detail he said he saw back in February 17th or shortly thereafter.
    Do you know of any scientific explanation as to why the details that were able to be seen by Mr. Medlin February 17th or 18th, 1970--they could not, a week later, be seen by other--be seen again?
A  It is my understanding that the floorboard came apart.  In those areas where the floorboard separated, ridge detail present in those areas would have disappeared or could have disappeared.
    But in those areas where the floorboard was intact--that is, it was on a section of the board--I see no explanation, scientific or otherwise, why the ridge details should have disappeared.
Q  Now, let me read you Mr. Medlin's--
A  (Interposing)  Excuse me--if it were properly transported.
Q  Well, let's talk about that.  Based upon your own experience in detective work and your teaching and your learning in the area, what would have been a proper police practice as to how to remove that section of floor so that no ridge detail, including in the crevices, would be lost?
A  The practice so that they would be lost?
A  So that no ridge detail, even in the crevices, would be lost by, say, the board's falling apart or coming apart?
A  Well, one would attempt to secure the three boards or four boards, whatever they may be--might be, by putting strips along each, sufficient distance away so that they can be--remain clamped, in a sense.  You build a clamp--you know, it's--fashion a clamp, so that the boards will remain together.
    Now, a technician may not be able to do that, but a carpenter certainly could, if told what you wanted done.
Q  Is that a unique problem for a competent fingerprint examiner to deal with?
A  I am not sure if fingerprint examiners do this work.  This is really a criminalist's work.  It is not something that is done weekly, much less daily; but it is something, if the occasion arises, the criminalist should be able to respond to and address.
Q  Now, let me go back to the problem of photographing this particular footprint.  And I would like to read to you, if I can, from page 3106 of the transcript of this case, which is the testimony of Mr. Medlin, taken back on July 30, 1979.
    Mr. Medlin was asked what he had done in regard to the footprint.  And he gave the following answer:
    "...I called Mr. Page in and asked him to photograph the footprint so that we could make a record of it, and he attempted to do this using Polaroid film to see if he could do it, as my eyes had seen; but every time he would get the camera in the same position that my nose and my eyes was--which as you can see is quite close to the floor--the light would shine directly into the lens of the camera.  Every time he would snap the shutter, it would pick up the light bulb.
    "Therefore, he was not able to make a photograph of the different characteristics in the formation of the foot as I was viewing it through my glass.  He had no magnifying lens for his camera, and therefore he did the best he could."
    Now, does that explanation satisfy what your own experience is in terms of the difficulty or non-difficulty of having photographed this footprint?
A  It is quite apparent that there is an illumination problem being discussed here.  And if there is an illumination problem, you take care of that.  You don't use--it sounds like he was using flash.  But you need directed illumination from photofloods, possibly lighting obliquely from the side so that the light does not reflect up into the lens.
    But if the illumination being used is such that the opportunity--if a shiny surface reflecting back is there, then you--as a photographer--you recognize this and you illuminate it in a different fashion.

MR. MURTAGH:  Your Honor, we would MOVE TO STRIKE that answer as not being responsive to the question.

THE COURT:  OVERRULED.

BY MR. SEGAL:
Q  If he was using a flash in the fashion described, what might he have done with the flash in order to avoid this reflection you described?
A  Well, he might have used indirect flashing up to the ceiling.  But there I am speculating.  I would prefer to use the ground glass of the speedgraphic, actually look at the print on the ground glass so that I know I am getting the details that I need and want.  And then I would close the camera lens because the illumination now is satisfactory, place the film in, expose the film, have it developed and processed.
Q  Does this require some extreme unusual technical equipment to have done that?
A  No.
Q  Would it require anything in terms of special experience and extraordinary experience not commonly available to persons who photograph crime scenes?
A  I would think that it requires some knowledge beyond just general exposing four walls and a floor; yes.
Q  Now, the testimony here that some of the photographs that were taken of the fingerprints and other items were not clear because there were vibrations that the house was apparently exposed to; assuming that there was a problem of vibrations, was there any solution that a photographer could have pursued if he or she were competent in the area of crime scene photography?
A  Well, I would try to ascertain the cause of the vibrations, and if it was within my power, to have them stopped.
Q  Well, for instance, there was some suggestion there were Dempster Dumpsters passing by.
Is there some solution to that problem?
A  I am not sure what a Dempster Dumpster is, but if it's a truck--I assume if it's a truck of some sort?
Q  Yes, sir?
A  They can be stopped.  Military Police have the capacity, I believe, to tell them to cease--"Don't come around.  We are doing some work."
Q  Would the photographer have been aware at the time he was taking the photograph that the vibrations, if it was that serious, would affect his photograph?
A  If it were a long exposure--and if he were flashing, it wouldn't be a long exposure--if it didn't come out and that was the explanation, then you would take it again.  I just don't know whether he would be aware or not.

MR. MURTAGH:  Your Honor, I MOVE TO STRIKE that answer if he doesn't know.

THE COURT:  Well, I will OVERRULE it.

BY MR. SEGAL:
Q  Now, let me talk to you, if I may, about another one of the areas of your interest, which is the question of crime scene preservation and crime scene investigation, if I may.  Are you familiar with a textbook which is entitled Techniques of Crime Scene Investigation by Dr. Svensson, S-v-e-n-s-s-o-n, Dr. Wendell, W-e-n-d-e-l-l, and as revised and edited by Professor Nicol, N-i-c-o-l, in the Second Edition?  Are you familiar with that book?
A  Yes; I am.  Professor Nicol, as a matter of fact, is a member of my Department.
Q  At the University of Illinois?
A  Yes; Illinois.
Q  Is this book, Techniques of Crime Scene Investigation, recognized within the field of criminal investigation as an authoritative treatise?
A  Yes.
Q  I would like to read to you a limited number of sections from the book and ask whether or not in your opinion as an expert you would agree or disagree with the statements made by Professors Svensson, Wendell and Nicol about techniques of crime scene investigation.

MR. MURTAGH:  I would OBJECT, Your Honor, unless we had been furnished with these in advance.

MR. SEGAL:  We are not required under Rule 803(18).

THE COURT:  Well, let me finish reading (18).

MR. SEGAL:  I will say, Your Honor, I will be glad to make the Government available a copy as soon as I finish using it now on direct and they may examine it as long as they need to.  It has also been here on my desk for about three days.

THE COURT:  All right.  Ask your question.

BY MR. SEGAL:
Q  In regard to Chapter 1, entitled, "Rules for the First Officer at the Scene," I will read you the section and ask whether you agree or disagree with the statements made in the text and whether they comport with good practice in the area of crime scene investigation.
    Reading from page 1:
    "...It is of the utmost importance to the success of the investigation that the officer who first arrives at the scene makes no errors, whether by commission or omission"?
A  I would agree with that.
Q  I will indicate the page number from which it came.  But this is still on page one.
    "...The first officer on the scene must therefore avoid diminishing or destroying potential clues which may eventually lead to the apprehension of the criminal"?
A  I agree.
Q  "...The extent of the preliminary measures must, of course, be in proportion to the type of the crime, the location of the crime scene, and the availability of personnel"?
A  I would agree.
Q  Going to page two:
    "...First of all, the officer must not approach the scene hastily; rather, his moves should be calm and deliberate"?
A  Yes.
Q  "...Errors committed during interrogation and other aspects of the preliminary investigation can perhaps be corrected, but errors committed in the safeguarding and examination of the crime scene can never be rectified"?
A  That is true.
Q  Going on to the same page under the heading, "Recording of Time":
    "...Precise notations of the time are of great value to the detective officers"?
A  Correct.
Q  On page three:
    "...Nothing on the scene may be moved unless absolutely necessary for one reason or the other, because the crime scene must, as far as possible, be intact when the investigating officers arrive.  If it should be necessary to recover or to move an object in a public area because it may be disturbed by onlookers, the officer must think of the possibility that it may bear fingerprints.  Before any object is moved, its location must be noted.  The exact location of an object may turn out to be of vital importance to the case."
    Do you agree or disagree?
A  I agree.
Q  In regard to this matter of noting, do you have any additional comments or thoughts about what is proper police practice in regard to crime scene investigation?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  OVERRULED.

THE WITNESS:  Crime scenes are recorded by three methods.  One we have heard about, namely photography.  The other two methods are: notes, which one writes on a pad or notebook; and the other is by means of sketches.
    There are different values to photographs versus notes and versus sketches.  For example, sketches permit one to have exact measurements as to location and relative positions of objects, such as an overturned table and furniture that may be nearby or contiguous or touching it.
    Notes permit chronological accounting of who was at the crime scene, when things were done at what time, and so on.  Photographs permit recording--freezing what was present.  But you can't always show relationships as perfectly as you might want to show them, and hence the reasons for sketches, or the need for sketches.
Q  Let me direct your attention now to page 4, entitled "Protecting the Scene."
    "As soon as possible after arriving at the scene, the officer should take steps to protect the scene from curiosity seekers and family members."  Do you agree or disagree?
A  I certainly do agree.
Q  "If an injured person is on the scene, he shall, of course, be given first aid immediately, even though valuable clues may be unavoidably destroyed."  Do you agree or disagree?
A  The protection of life is very important.  It supercedes the protection aspect for that area where the activity to save a life is involved.
Q  "When a doctor or ambulance personnel arrive, the officer should, without in any way interfering in their work, instruct them how to enter the scene so as not to disturb it needlessly.  He should further observe the action of the medical personnel and note what objects they moved, where they walked, et cetera." Do you agree or disagree?
A  I agree.
Q  Now, let me interrupt the review of this treatise and your opinion about it and ask you in regard to the situation with the body of Dr. MacDonald as it was removed from the crime scene.  There has been testimony here that medical personnel entered through the--

MR. MURTAGH:  (Interposing)  OBJECTION, Your Honor.  Counsel is testifying.

MR. SEGAL:  If I misstated testimony, I will accept whatever correction the Government suggests I should make.

THE COURT:  All right, proceed.

MR. SEGAL:  Let me first remove these boards, please.

BY MR. SEGAL:
Q  There has been testimony in this case, as I recall, that the medical personnel who removed the body of Dr. MacDonald came through the front door of the house, down the hallway, and with a gurney--wheeled stretcher--and then removed Dr. MacDonald's body down the same path.  There was also testimony that there were MPs, including Lieutenant Paulk, the commanding officer on the scene, present in or about the living room.  Was such a practice of letting medical personnel come in that way consistent with good police practices in terms of preserving the crime scene?
A  You have a problem here.  You have essentially--well, at least two major areas of interest--namely, the master bedroom where Dr. MacDonald was located and the entrance to the premises through the utility room.  Then you have the hallway with the bloody footprints, then you have the dining--

MR. MURTAGH:  (Interposing)  OBJECTION; MOVE TO STRIKE that as not being in accord with the evidence in the case.

THE COURT:  All right, I will SUSTAIN that.  Just confine your answer to the question which he asked you.

BY MR. SEGAL:
Q  Ignore the preface to whatever is or isn't on the floor of the hallway; all right?  Go on with your answer, Professor Osterburg.
A  You have in the living room an area where Dr. MacDonald describes a struggle taking place.  At this point in the investigation, which is more important to preserve would not be apparent to the Lieutenant Paulk or the investigator who was there which he should preserve.  So, it would occur to me that the path which requires the shortest--provides the shortest--method of getting out of the house would be the preferable one, and I recognize that that means the persons carrying Dr. MacDonald would have to go through the utility room and that that is the point of entry, and we certainly don't want to have that disturbed.
    But if the medical personnel were given instruction that they must be extremely careful not to brush and rub against doorjambs, doors, and so on--that I think, because it is the shortest path out, I would have used that path.
Q  Now, Professor Osterburg, in that same regard, what about the use of a wheeled stretcher--a gurney--to be taken through the house?  Does that comport with what you believe is proper crime scene protection practices?
A  I believe a hand-carried stretcher should be used under these circumstances.
Q  Why is that, sir?
A  Well, if there is anything on the floor by way of footprints or other traces--

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  OVERRULED.

BY MR. SEGAL:
Q  Yes, go ahead.
A  It would be disturbed, possibly destroyed.
Q  All right, now, again, asking you further about your opinions as to whether you agree or disagree with the treatise that we are talking about, directing your attention to page 6:
    "The officer should arrange for the correct removal and custody of the clothing of the victim.  All too often, when the hospital or mortuary is contacted for the purpose of obtaining the victim's garments, they may be incinerated or, at best, wadded into an almost hopeless mess after being cut or ripped from the body.  It would be to the advantage of all investigative agencies to make periodic visits to their local hospitals in order to instruct medical personnel in the proper handling of evidence.  The medical profession's prevalent lack of interest in and knowledge of evidence is surprising, considering the otherwise broad scope of their training."  Would you agree or disagree with that statement and the recommendation that came thereafter?
A  I would agree with it, depending upon the area one is talking about.  If there are 50 or 20 hospitals in an area, such as a large city, and there is constant turnover of personnel in those rooms, I think it is sort of impractical to think that you could educate those individuals.  On the other hand, if there is some reasonable stability and one or two hospitals are involved and a minimum number of people serving the emergency area, then that is a feasible thing to do.  In any case, it is a desirable thing to do.
Q  Continuing on page 10 under the heading "What to Do Until the Investigative Personnel Arrives."
    "While waiting for the investigators to arrive, the officer need not remain idle.  The following general rules should guide his conduct during this time..."  And I think I will ask each one of these separately as to whether you agree or disagree.
    "1.  Write down"--

THE COURT:  (Interposing)  Let me just ask him; you have read the book?

THE WITNESS:  Yes.

THE COURT:  Is there anything in the book with which you disagree?

THE WITNESS:  It has been some time, Judge.  When you say "anything," I think that I would have to say I can't answer.

THE COURT:  (Interposing)  You know what he is going to ask you; don't you?

THE WITNESS:  Not necessarily.

THE COURT:  Well, you will have to ask him, then.  I thought I would shorten it for you.

MR. SEGAL:  I appreciate that, Your Honor.  There are actually only a few more limited sections.

THE COURT:  That so often happens.  When you try to shorten it, you wind up lengthening.
Go ahead.

BY MR. SEGAL:
Q  Under the heading, "What to Do Until the Investigative Personnel Arrives":
    "(1)  Write down names of witnesses and other persons who are known to have entered the scene.  This is important to the subsequent sorting of fingerprints and other clues found at the scene"?
A  That's a sound idea.
Q  "(2)  Who was at the scene when the officer arrived.  This information can become particularly important if the crime has just occurred"?
A  Yes.
Q  "(3)  Establish the basic facts.  A factual account of what happened is of great assistance to the investigators when they arrive because it helps them to decide on the next move.  However, the officer should, under no circumstances, undertake lengthy and detailed interrogations which may damage later questioning or give rise to suggestion in the statements of witnesses"?
A  When he says "establish the basic facts," I go along with that and the business about questioning witnesses; yes.  But any extensive investigation, other than the basic facts, I think should be left to the investigator.
Q  Would you agree also with the statement:
    "Furthermore, the officer cannot properly guard the scene if he is occupied with interrogations"?
A  That is true.
Q  Finally, from this section:
    "Protect evidence which is in danger of being destroyed.  During rain or snow, divert water and cover tracks with boxes, cardboard, et cetera.  If the crowd of onlookers becomes large, it may become necessary to expand the protective measures at a given location in order to prevent the trampling of evidence.  When the investigating officers arrive, the first officer should report all that he has learned and observed and the action he has taken.  This is of great importance to the estimation and planning of the crime scene investigation.  It is particularly important that he report the extent to which the scene has been altered, objects have been disturbed or moved, et cetera."  Do you agree or disagree?
A  I would agree with that.
Q  Continuing:
    "...The continued protection of the crime scene.  In protecting the scene after the investigators have arrived, the officers detailed to guard the scene should act only on order from the investigator in charge.  During the technical examination of the scene, it is the crime scene investigator who is in charge of the officers on guard duty as well as the scene proper"?
A  I would agree that that is good practice.
Q  "...No one is allowed access to the crime scene without the investigator's permission, not even other investigators or superior officers"?
A  An excellent idea.
Q  "...Command officers would render a prime service to their investigators if they would preserve the integrity of the crime scene with a passion and set an example for other officers"?
A  Amen.
Q  "...Those officers permitted on the scene must move with their hands in their pockets"?
A  I would agree.
Q  "...Through carelessness, or without being aware of it, they may touch objects on the scene.  Police officers on sightseeing tours through the crime scene sometimes destroy more good evidence than any body of laymen could possibly accomplish"?
A  I am not sure of any body of laymen, but I would agree.  People going through the crime scene, whether a police officer or a layman, can destroy evidence.
Q  Would you agree the same would apply to ranking military officers who are not engaged in actual crime scene investigation?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  Now, turning to Chapter Two--and this is the final area we are dealing with--"Rules for the Crime Scene Investigator."
    "...The purpose of crime scene investigation is partly to effect a complete reconstruction of events with respect to the sequence of events, method of operation, motive, property stolen, and whatever else the criminal may have done, and partly to recover the clues which will serve as evidence against the criminal."  Do you agree with that?
A  I would agree with that.
Q  Page 14:
    "...The crime scene investigator should not allow a nervous superior or doctor who has been called in a death case to influence his calm deliberation on a case before he undertakes the actual examination"?
A  I would agree.
Q  "...Nor should he speed up the investigation on their account.  They will have to wait because the investigator is personally responsible for mistakes, and therefore he has the right to determine his own actions at the scene"?
A  I agree.
Q  "...If an experienced crime scene investigator is asked to give an account of how he proceeded at the scene, he may be hard put to formulate a general rule.  This is to be expected, since one crime scene is different from any other crime scene.  The basic qualities of a good crime scene investigator, however, are intuition and an eye for what needs to be done in each individual case, in addition to a thorough knowledge of the methods of locating and preserving evidence"?
A  I would agree, but I would amplify it by saying that experience is important also.
Q  You say "experience"?
A  Experience in crime scene investigation and follow-up.
Q  Continuing on page 18, referring to the subject of "Notes Taken by Investigators":
    "...Notes must be complete enough so that a complete reconstruction of the case could be made even 15 to 20 years hence."
A  That would be highly desirable.

MR. SEGAL:  I have no further matters in regard to this particular book.  I have some other examination, Your Honor.  Would this be an appropriate time to break?

THE COURT:  No.

MR. SEGAL:  All right, sir.

BY MR. SEGAL:
Q  Based upon your experience, knowledge, information and training, what is the possible likely effect on an investigation when these basic principles of crime scene protection are not followed by the investigators involved?
A  The opportunity presented by examining a crime scene are lost--or may be lost.
Q  In regard to the questions I asked yo before about the proper procedures for fingerprinting or processing a crime scene for fingerprinting--what is the potential effect on the criminal investigation of the failure to fully process for latent fingerprints a crime scene?
A  Again, the opportunity for connecting the crime scene and the criminal together through fingerprints is lost.

MR. SEGAL:  Thank you, Professor Osterburg.  You may examine.

THE COURT:  Any questions?

MR. MURTAGH:  Yes, sir.


C R O S S - E X A M I N A T I O N  11:16 a.m.

BY MR. MURTAGH:
Q  Professor Osterburg, I believe on direct examination you testified you joined the police department in 1940?
A  That is correct.
Q  You retired in 1960; is that correct?
A  Yes.
Q  Was that service continuous?
A  I believe so.
Q  So your Army Reserve service--let me ask you, you said you were commissioned in the Army Reserve; is that correct?
A  Correct.
Q  That was the Military Police Corps?
A  Correct.
Q  Did you ever serve in the Military Police Corps on active duty?
A  Summer training programs?
Q  No, sir; that is not my question.  By "active duty" I mean--well, for example, did you serve in the Military Police Corps during World War II?
A  No, sir.
Q  How about Korea?
A  No, sir.
Q  I believe on direct examination you testified that you were a detective; is that correct?
A  Correct.
Q  Were you ever a homicide detective?
A  I was a crime scene--I was a member of the staff of the crime laboratory.  We went to crime scenes.  The answer is, I was not a homicide detective as such.
Q  Well, what kind of detective were you, as such?
A  I was a member of the staff of the crime laboratory who went to crime scenes, and who was involved with people in homicides.  I have been to over 200 homicides.
Q  Okay; when you got to the scene at these various homicides, was that as a result of the lab team, if you will, being summoned?
A  Yes.
Q  Would it be correct to say that you were not the first homicide detective on the scene?
A  That is correct.
Q  Or the first officer on the scene?
A  That is correct.
Q  Let me ask you, when did you last work a crime scene as a crime scene technician?
A  Somewhere around 1951.
Q  1951?
A  Yes.
Q  Let me ask you, after your last experience with a crime scene in 1951, where were you next assigned?
A  I was assigned to develop the unit that was going to implement a new law that had been passed in New York State, and it was called the Intoxicated Drivers Testing Unit.  An implied consent law, which you are probably familiar with, was passed.  The department had to implement it, and I was the person chosen to provide the technical expertise and also to run it.
Q  Did that deal primarily with problems involving drunk drivers?
A  Yes.
Q  That was 1951?
A  1951-'52, until about '53.
Q  Professor Osterburg, when did you begin teaching while still employed by the police department?
A  1955.
Q  Was that a full-time occupation?
A  Full-time.
Q  Let me ask you what proportion of your time since 1955 up until your retirement in 1960 was devoted to police work in the field?
A  I was full-time teaching, so I was not in the field.
Q  Did you ever co-author a textbook?
A  I did.
Q  What was the title of that, sir?
A  An Introduction to Criminalistics.
Q  Who was the co-author?
A  Charles E. O'Hara.
Q  Was that published in several editions?
A  That was published in 1948, and it was republished in 1973 by Indiana University Press.
That is not a new edition, though.
Q  My question is, did there come a time when you ceased to corroborate or co-author with Mr. O'Hara on this textbook?
A  Yes.
Q  When was that, sir?
A  Mr. O'Hara and I were partners in the police department.  O'Hara went into the Air Force during the Korean War and then we never got together as a team in the police department.
Q  Is that textbook still in use today?
A  Yes.  It is not out of print; it is still available.
Q  Do you use it in your own courses today?
A  Yes.
Q  The revised edition?
A  It is not really a revised edition; it is a reprint of the original edition.  The answer is yes.
Q  Do I take it, then, that it has not been revised substantially since 1948?
A  That is correct.  A basic book is a basic book, Counselor.
Q  Well, let me just ask you: basics do change, do they not?
A  There are things that would be added; yes.
Q  Now, this particular crime scene--referring to the MacDonald quarters--let me ask you, have you reviewed all the photographs taken of this crime scene?
A  No.
Q  Have you reviewed all of the items that have been introduced in evidence in the court thus far?
A  No.
Q  Have you reviewed the laboratory reports--and by that I mean all the CID laboratory reports, all the FBI laboratory reports--

MR. SEGAL:  (Interposing)  Your Honor, I would suggest the question be restricted to the area which the witness has testified on.

MR. MURTAGH:  Your Honor, I thought he was all over the crime scene.

THE COURT:  If this is an OBJECTION, I will OVERRULE it.

MR. SEGAL:  Fingerprinting, Your Honor?  All right.

BY MR. MURTAGH:
Q  Do you recall the question, sir?
A  Would you rephrase it?
Q  Have you reviewed all of the laboratory reports in this case?
A  No.
Q  Do you know the sum total of items that were collected for evaluation as evidence in this case?
A  No.
Q  Do the sum total of photographs of latent areas that were taken in this case?
A  Latent areas?
Q  Yes, sir.
A  No.
Q  And I believe you testified you have not reviewed them?
A  Correct.
Q  Okay, are you familiar with the blood evidence in this case?
A  I know there is a lot of blood, but when you say "familiar with the blood evidence," you mean the groupings?
Q  No, sir; I am not really concerned with which group is where.  Are you familiar with the distribution of suspected stains and actual stains in the crime scene? 1
Q  Well, let me ask you, is this crime scene, as far as you are concerned, merely a fingerprint scene?
A  No.
Q  Would it be accurate to say it was also a blood scene?
A  As far as I am concerned?
Q  Well, as far as the crime scene as a totality, sir?
A  Oh, yes, indeed.
Q  Now, from a fingerprint scene, which is, I believe, the standpoint from which you testified?
A  Correct.
Q  Would it be accurate to say that it would be your opinion to dust the entire wall, the entire door--whatever?
A  Well, when you say "the entire"--you know, maybe it's a very tall mass--but that crime scene should have been processed much more than it was.
Q  Well, that is not my question, sir.  My question is, with respect to any area, okay--let's take that wall?
A  All right.
Q  Would it be your opinion that it would be better from a fingerprint standpoint to dust the entire wall?
A  You can't answer that for--you will have to specify the wall.  For example, if there is a washing machine there, which is a heavy item, the likelihood of some intruder moving that to put a fingerprint there to see whether we would find it is remote; and so I wouldn't say the entire wall.  It would depend on circumstances.
Q  Okay, let me ask you, with respect to observable areas within the range of touching by people of, say, 5' 8" to 6' 3" in height--would it be better to dust the entire wall?
A  I can't answer.  You tell me which wall.  Let me see the photograph and I'll answer that.
Q  Well, that isn't my question, sir.  What I'm saying is, is it your testimony that from a fingerprint standpoint you do not necessarily dust the entire wall, the entire door, the entire area, whatever it may be?
A  It would depend on the object, Counselor.  For example--
Q  (Interposing)  Well, all right, now--

MR. SEGAL:  (Interposing)  I think he is entitled to answer, Your Honor, and explain.

THE COURT:  I think he is entitled to have the question asked along the lines that he suggested that he would have an opinion about.  Ask it again.

BY MR. MURTAGH:
Q  In your opinion, Professor Osterburg--now, let's take the north wall in Kristen's bedroom--I'm sorry, I believe that would be the west wall in Kristen's bedroom, the area above the bed.
    From your viewpoint, would it be your opinion that a competent examiner would have to dust the entire wall?
A  May I see a photograph of it, please?
Q  I don't know that I have one right available.  Why don't you step down and take a look at the model--directing your attention to this wall here?
A  You are referring to the north wall?
Q  I think it is the west wall of the north bedroom--would be a more accurate description?
A  And your question is?
Q  From a fingerprint standpoint, and from a fingerprint standpoint only, would it be your opinion that you would have to dust the entire wall?
A  When you say "the entire wall,"--
Q  (Interposing)  Let me rephrase it another way.

MR. SEGAL:  Let him finish the question, please--the answer.

THE WITNESS:  You mean north to south, top to bottom.

BY MR. MURTAGH:
Q  Let me ask you another way.  Mr. Osterburg, what areas would you not dust?
A  Can I tell you what I would dust?
Q  Yes.
A  I would process the entire wall area around that bed.

MR. MURTAGH:  Okay, thank you.

THE COURT:  Now, we will take a recess and come back at 11:45.  Don't talk about the case.

(The proceeding was recessed at 11:30 a.m., to reconvene at 11:45 a.m., this same day.)


F U R T H E R  P R O C E E D I N G S  11:45 a.m.

(The following proceedings were held in the presence of the jury and alternates.)

THE COURT:  Any further questions of this witness?

MR. MURTAGH:  Yes, sir.

THE COURT:  Let him come back, then.

(Whereupon, JAMES OSTERBURG, the witness on the stand at the time of recess, resumed the stand and testified further as follows:)


C R O S S - E X A M I N A T I O N  11:46 p.m.  (resumed)

BY MR. MURTAGH:
Q  Okay, Professor Osterburg, I believe just before the recess, I was asking you about the west wall in the north bedroom--Kristen's room?
A  Yes.
Q  Do you recall answering in response to a question that you had processed the entire area around the bed?
A  Yes.
Q  Now, sir, do you know whether any blood spatters were found on that wall?
A  The processing for fingerprints should take place after the blood--
Q  (Interposing)  That was not my question.
A  I do not know.  I would assume it was, but I do not know.
Q  Do you know how many there were?
A  No.

MR. SEGAL:  It does seem irrelevant, Your Honor, if the witness has answered it and said that he thought it should have been done after the blood has been processed.

MR. MURTAGH:  I don't believe that was the question.

THE COURT:  I don't believe he ever got to answer that question.  I guess you have supplied it, but in any event, proceed with your questions.

BY MR. MURTAGH:
Q  Professor Osterburg, you responded that the collection of fingerprints should be done after the blood is collected?
A  Yes.
Q  Is it accepted practice to mark areas of suspected blood stains for collection?
A  To mark them for collection?
Q  Yes, for eventual collection.
A  Some people might do it that way.
Q  Let me ask you a hypothetical question.  Let's assume that you have a seven-room house which has blood stains in all but I think one room, and in processing the scene, a determination has to be made as to which stains to collect.  Do you understand that?
A  There are two determinations, Counselor, that need to be made relative to blood stains.
Q  Yes.
A  One is the stain which will give direction from whence it came.  The other is collecting stains for grouping purposes.  Now, those are two different matters, and have to be treated differently.
Q  (Interposing)  My question is--

MR. SEGAL:  (Interposing)  Excuse me.  Let him finish the answer.

BY MR. MURTAGH:
Q  What my question is: do you agree or disagree that for whatever purpose the blood stain is to be eventually collected, it should be marked first by a chemist to delineate the areas of the stain?
A  I would say that the chemist--not the chemist--he is collecting it for grouping purposes.
It should be photographed first so we have directionality if we are interested in reconstructing how the crime was committed.
Q  Do you know whether that was done or not?
A  I do not know.
Q  You haven't seen those photographs?
A  Of blood stains showing directionality one to one, no.
Q  Have you seen the blood stains on that wall--referring to the west wall of Kristen's bedroom?
A  Have I seen those?
Q  Yes, sir.
A  My recollection is they were removed.  I am not sure now.
Q  You don't know whether you saw the stains prior to their being removed and photographed?
A  Oh, in the photographs?
Q  Yes.  Have you seen the photographs of that wall with the stains prior to being removed?
A  I have seen the photographs.  My attention was on fingerprints and not blood stains.
Q  That was not my question.

MR. SEGAL:  Your Honor, I would ask Mr. Murtagh to please let the witness finish the answer before--

THE COURT:  (Interposing)  Well, his OBJECTION, though, Mr. Segal, is that he is answering a question that he didn't ask.  He wants an answer to that question, but now if there is an explanation, he is going to get an opportunity to explain.

MR. SEGAL:  I agree, Your Honor, but I am not always sure whether the question is what is not clear or the answer not clear.  All I am saying is whatever the witness is saying--I thought the rule was to let him finish and he can certainly follow up without any OBJECTION by me for anything else he had asked for.  I only ask that the witness be able to finish his answer before being interrupted.

THE COURT:  Ask your question.

BY MR. MURTAGH:
Q  Professor Osterburg, to your knowledge, have you seen the photograph depicting suspected blood stains on the west wall of Kristen's bedroom prior to the collection of those stains?
A  I cannot answer that question.
Q  Okay, let me ask you to assume for the sake of a hypothetical question that such blood stains exist on that wall.
A  Are you talking of splatters?
Q  Spatters, yes.  Now, from a blood standpoint, in your opinion, would it be inappropriate to mark the area of the stains for eventual collection?
A  They should be photographed first before any mark is placed on them.  Then, if they are of sufficient quantity that they would be worthwhile collecting for grouping purposes, it is conceivable that some people under these circumstances might choose to mark those stains that are large enough for grouping purposes.
Q  Well, that isn't my question, Professor Osterburg.  My question is: the stain of whatever size, whether it can be grouped, typed, or merely identified as blood or human blood, would you disagree that it is other than accepted practice to mark the area for eventual collection of the stain?
A  I would disagree.
Q  You would disagree?  You would not mark the area?
A  I would not mark the area.  For what purpose?
Q  For what purpose, sir?
A  Yes.

THE COURT:  Well, don't argue with him, now.  Just ask another question.  He answered that one.

BY MR. MURTAGH:
Q  You would not mark the area?
A  I am sorry, Judge.  I am a teacher and sometimes I hope I am able to teach.  Maybe I am improper.

THE COURT:  Maybe we can arrange for you to continue his forensic science education at some recess, but I am talking about just getting on with this case.

BY MR. MURTAGH:
Q  At any rate, you would not mark the area, in your opinion?
A  The small stains that are not suitable for grouping.
Q  That is not my question, sir.  My question is: would you--
A  (Interposing)  I would mark part of the area and not part of the area, so when you say, "I wouldn't mark the area," you have got me saying that "I wouldn't mark the whole area."
Q  You would not mark the whole area?
A  I can conceive of a criminalist at a crime scene of this magnitude marking stains sufficiently large so that they can be grouped.
Q  So, would it be correct to assume from that answer that there might be stains which in your opinion would not be sufficiently large for grouping purposes which would be outside the area marked?
A  Which would be left unmarked; yes.
Q  Would you dust those areas outside the marking?
A  Carefully.
Q  You would dust them?
A  I would carefully dust them.
Q  In your opinion, sir, is there any danger of damaging a stain by dusting it?
A  Yes.
Q  Would it be fair to say that as between a blood scene and a fingerprint scene, some compromise has to be struck?
A  What do you mean by "compromise"?
Q  Let me explain that.  From a fingerprint standpoint, the optimum would be to dust every conceivable area.  Would you agree with that?
A  Yes.
Q  From a blood standpoint, it would be better not to have any fingerprint dust on the area at all?
A  That is correct.
Q  But if you have both a blood stain and a fingerprint stain, my question, sir, in your opinion, do you not have to have some compromise between where--
A  (Interposing)  The answer is yes.  The compromise could be effected in the following fashion.
Q  Okay, sir, go ahead.
A  Those areas where the likelihood of a perpetrator or perpetrators touching or evidence that they were there or likely to have been there would probably be better processed for fingerprints if the blood stains in those areas are essentially small stains where pattern distribution of splashing is involved.
Q  So, in your view, sir, fingerprints would be more important or potentially more important than blood stains?
A  Well, you haven't destroyed the small blood stains if they have been photographed for splatter distribution.  You have preserved them photographically.  At that point, you can then process--
Q  (Interposing)  Are you saying that small stains can never be typed?
A  Relatively small stains cannot be typed; yes.  You need a quantity of blood.
Q  Can they be identified as human blood?
A  Oh, yes.
Q  Let me ask you with respect to blood stains, in your opinion, sir, would a number of perpetrators exiting from the MacDonald crime scene via the master bedroom and through the utility room, would they necessarily have had to touch the swinging door between the utility room and the master bedroom?
A  If it were closed; yes.
Q  Do you know that it was closed?
A  I have no idea of the condition of that door at the time that they exited.
Q  Have you see the crime scene photographs?
A  I have seen some crime scene photographs.
Q  Have you seen the crime scene photographs depicting the position of that door?

MR. SEGAL:  Your Honor, that is not the question that is being put to him--whether when the intruders were there was it open or shut.  The question of what the door looked like at the crime scene is not precisely the issue that he is being questioned about.

THE COURT:  Ask your question.

BY MR. MURTAGH:
Q  Will you answer, sir?
A  Would you repeat the question?
Q  My question is: have you seen the crime scene pictures which depict the position of that door?
A  I have seen a crime scene picture which shows the door as open.
Q  Have you read the trial testimony of Mr. Tevere?
A  Some time ago, I read that and I really don't recall that testimony.
Q  You don't recall that testimony with respect to the position of that door?
A  No.
Q  Have you read any of the Defendant's statements with respect to the position of that door as he viewed it upon entering the master bedroom?
A  No; I have not.
Q  Based upon that, do you have any reason to believe that that door was other than open?
A  Based on something I haven't heard, I can't make any statement.
Q  Well, didn't your hypothetical with regard to fingerprints assume that that door was closed?
A  My hypothetical didn't assume it.  I said that I would process that door because it is such a key door and it is so easy to do that it should be processed irrespective of what anybody says, whether it is opened or closed, because if you had been at a crime scene, you know that things are not always perfect.
Q  I certainly would not disagree with that.  My question, Professor Osterburg, is that I believe you stated on direct examination that in your opinion, one of the reasons that you would process this door, in fact, one of the things that indicated processing the door, was that someone would have pushed on that door to open it?
A  Could have pushed on the door, and it is so easy to process, why ignore it?  I would over-process in a scene like this rather than under-process.
Q  Are you saying that door was not processed at all?
A  I am saying that it was not processed on but one side--the utility room side.
Q  Wouldn't that side have been closest to the wall like a refrigerator or a washer?
A  If it opened into the utility room; yes.
Q  So, my question is: does not your opinion depend upon whether that door was opened or closed?
A  No.  My opinion says that that door ought to be processed willy-nilly.
Q  Would you agree that if that door were open, any intruders, if there were any, could enter into the master bedroom without touching that door?
A  Yes, they could enter without touching the door.
Q  Would you also agree that anyone exiting from the master bedroom so as to throw something out the back door would also not touch the utility room door?
A  Not necessarily; no.
Q  Did you find any areas on that door which indicated the presence of suspected blood stains?
A  I don't believe so.  Again, I was not looking at blood stains.  I was looking at fingerprints.  Someone else was doing that.
Q  So, in other words, your testimony with regard to the processing of the crime scene is really limited to the question of dusting for fingerprints?
A  So far.
Q  Now, with respect to the door to Kristen's bedroom, do you know whether that was open or closed?
A  No.
Q  Do you know what the Defendant said with regard to that door?
A  No.
Q  Do you know what the MPs said with regard to that door?
A  No.
Q  Do you know whether it was possible to see into that room or not from the hallway?
A  No.
Q  Do you know whether the light was on or off?
A  No.
Q  Now, with regard to the living room, you would have dusted the whole wall, I take it, above the couch?
A  Above the couch; yes.
Q  Let me ask you: would you have dusted the whole wall if there was a possibility of suspected blood stains of a minute quantity on that wall?
A  Are they visible?
Q  That isn't my question, sir.  I said a possibility of minute blood stains?
A  I am not familiar with the blood stains that aren't visible, that are so minute that they are not visible.
Q  Would you agree, sir, or do you know whether blood can be detected which is not visible to the naked eye?
A  Blood can be detected among other things by a reaction called a benzidine reaction which is a very sensitive reaction; yes.
Q  Do you know what the testimony was in this case with regard to the stains on that wall?
A  I do not.
Q  Do you know whether there was blood on that wall or not?
A  I do not.
Q  Now--
A  (Interposing)  Excuse me, Counselor.  If the only test they could get is the benzidine test or reaction, that is a meaningless reaction in terms of it says there may be blood there.  But you can't do anything further with it.
Q  Let me ask you, since you appear to be testifying about the benzidine test: what if they got a negative reaction?  Would that be meaningless?
A  No.  That is very conclusive reaction.  There is no blood present.
Q  And in your opinion if there was a negative benzidine test, there would be no blood present on the living room wall above the couch?
A  That is right.
Q  Now, with respect to the kitchen door, I believe you testified that you didn't see any evidence of fingerprint processing in that area?
A  The door going to the outside?
Q  Yes, sir?
A  Correct.
Q  Do you know what the condition of that door was when the investigators got to the scene?
A  No.
Q  Do you know whether it was locked or open?
A  No.
Q  Do you know whether the Defendant went into that kitchen or not?
A  No.
Q  With respect to Kimberly's headboard, do you know whether any blood stains were found on that headboard?
A  No.
Q  Would you agree that if there was a possibility or an indication of blood stains on that headboard that it should not be contaminated entirely with fingerprint powder?
A  It would depend upon the size of the stain.  And you are talking about grouping purposes, I assume.
Q  I am talking about the blood stains, period, whether they can be grouped or detected?
A  Well, my testimony is that if the stain can't be grouped--
Q  (Interposing)  It is of no value?

MR. SEGAL:  Your Honor, I OBJECT to the interruption of the witness in mid-answer.

THE COURT:  Let him finish his answer, please.

MR. MURTAGH:  Yes, sir.

THE WITNESS:  I did not say or infer that it is of no value, because when you have two aspects to blood and blood stains, one has to do with the origin--the point of origin--of the blood.  And that is determined from the splash.  That can be very important in trying to reconstruct how the crime possibly occurred.
    To do that, one needs to record the details of the shape, the outline of the splash.  That is done photographically and with sketches.  Once that is done, if the stain is too small for grouping purposes, then processing for fingerprints would be in order.

BY MR. MURTAGH:
Q  Do you know, sir, what the distribution of the splatter patterns were in the south bedroom; that is, Kimberly's room?
A  No; I do not.
Q  Do you know whose blood was found on the--or whose blood type was found on the wall opposite that bed?
A  No; I do not.
Q  Okay.  Now, Professor Osterburg, you testified about a bloody footprint; is that correct?
A  Yes.
Q  Okay.  To your knowledge, sir, where was that footprint found?
A  It was in the hallway.
Q  In the hallway, sir?
A  There were boards--I--
Q  (Interposing)  Why don't you step down?

MR. SEGAL:  (Interposing)  Let the witness finish the answer, please.

BY MR. MURTAGH:
Q  Do you know where the footprint--

MR. SEGAL:  (Interposing)  Your Honor, I OBJECT to this process.

THE COURT:  I will let you object.

MR. SEGAL:  All right.

THE COURT:  But don't lecture Counsel or anyone else.  Just make your objection and I will rule on it.

MR. SEGAL:  Let me say that the unfortunate consequence--

THE COURT:  (Interposing)  Just object.  I will rule.

MR. SEGAL:  My objection is to please let the witness finish the answer, Your Honor.

THE COURT:  All right.  Let the witness finish the answer.

MR. MURTAGH:  Yes, sir.

THE WITNESS:  I have seen photographs of a footprint on planking or wood--wood boards.
The exact location, I am not sure.

BY MR. MURTAGH:
Q  You are not sure, sir?
A  That is right.
Q  Do you have any reason to disagree that it was not found in the hallway?
A  I am not sure, sir.  I am not sure.
Q  But I believe you testified on direct examination with respect to a stretcher--that the possibility of a wheeled stretcher could destroy a footprint in the hallway?
A  If one were present; yes.
Q  If one were present?  If one were not present?
A  It couldn't destroy it.
Q  Now, with respect to this bloody footprint--and let me tell you that there has been testimony here that it was found in the north bedroom exiting into the hallway; that is, from Kristen's room--do you know when it was collected, sir?
A  No.  By "collected," you mean--
Q  (Interposing)  Cut out?
A  The planks cut?
Q  Yes, sir?
A  No; I do not.
Q  Okay.  Do you know whether after it was cut out whether it was examined by the fingerprint examiners at the laboratory?
A  Yes.  I believe I read testimony to that effect--Mr. Medlin's testimony.
Q  Is it your understanding that Mr. Medlin was referring to the planks themselves or the photograph?
A  I thought it was the planks and the photographs taken of the planks.  But I am not sure.
Q  You are not sure which?
A  No.
Q  Have you seen the photographs of the footprint?
A  Yes.  Taken at the laboratory?  I have seen taken at the laboratory and in situ--as situated.
Q  Okay.  But you don't know whether Mr. Medlin's testimony as to whether the other examiners could see the ridge detail pertains to the photograph or the planks themselves?
A  No; I don't.  I assume if there are ridge details, they would talk about them.
Q  Do you know whether the planks themselves were processed for blood stains?
A  No.
Q  Do you know that they were not?
A  I don't know whether they were or weren't.
Q  Let me ask you to assume for the purpose of my hypothetical that the blood was removed subsequent to Mr. Medlin's identification of the footprint at the laboratory for grouping purposes?
A  I assume this would be after they had an opportunity to attempt to photograph any ridge lines that were present.  Is that what you are stating?
Q  I am asking you whether you know whether the blood was removed?
A  I have no idea what they did with that in the laboratory.
Q  All right.  Now, let me ask you: if blood was removed for grouping purposes, would that account for the disappearance of ridge lines, in your opinion?
A  If that were done, it would be such negligence, I can't believe it.

MR. MURTAGH:  Your Honor, I MOVE TO STRIKE that answer.

THE COURT:  Don't consider that answer, members of the jury.

BY MR. MURTAGH:
Q  Let me ask you, Professor Osterburg, with respect to this footprint, what is your understanding or your knowledge of when this footprint was a questioned footprint?  Do you understand my question?
A  When it was a questioned footprint?
Q  Yes, sir?
A  It was questioned until Mr. Medlin said he saw some characteristics which coincided with characteristics found in Dr. MacDonald's foot.  At that point--it still remained a questioned footprint and still should have been preserved, photographed and kept intact.
Q  But that was from a fingerprint standpoint?
A  That is from a bloody footprint standpoint.
Q  What about the blood group of the footprint?
A  Why is that of such importance?
Q  Well--
A  (Interposing)  Blood group merely says that it might be somebody's blood.  This is saying it is somebody's print.  There is a big difference.

MR. MURTAGH:  Your Honor, I would MOVE TO STRIKE that answer as being non-responsive.

THE COURT:  I will ask the witness not to argue with Counsel.  Just answer the question.

BY MR. MURTAGH:
Q  Do you know, sir, what the Defendant said on the morning of February 17th with respect to the footwear of the alleged intruders?
A  I recall something about high black boots--a woman.
Q  High black boots?
A  Black--well, knee-high.
Q  Would you disagree that Dr. MacDonald told one of the investigators that none of the intruders were barefoot?
A  I really don't recall the details.
Q  Do you know whether Dr. MacDonald has ever said, in respect to that footprint, that he must have stepped in blood?

MR. SEGAL:  OBJECTED TO, Your Honor.

THE COURT:  OVERRULED.

THE WITNESS:  No, I don't know.

BY MR. MURTAGH:
Q  Now assume from my hypothetical that he did say he stepped in blood, and further assume that he said none of the intruders were barefoot, and further assume that Mr. Medlin had compared that footprint on the floor with Dr. MacDonald's record prints; okay?
A  Yes.
Q  At that point, would it be improper to consider that footprint no longer questioned from a fingerprint standpoint and turn it over to the technicians for blood examination?
A  I think it would have been improper; yes.
Q  Do you know, sir, what the relationship between the blood group of the footprint is with respect to the other blood groups found in the north bedroom?
A  No, sir.
Q  And would it be your opinion that it is of no significance--what blood type it is?
A  No; I didn't say that.  I said that the fingerprint--if the ridge details were there and was destroyed to take samples of blood, that is grossly improper in my opinion.  They could have been photographed and thereby preserved and then the stain could have been grouped.
Q  Now, with respect to that photograph, have you examined the record prints of Dr. MacDonald?
A  No.
Q  Well, then, is it correct to assume that you could not say whether that is his footprint or not?
A  I don't think anybody can say it is his footprint.  There are no ridge details.
Q  That isn't my question, sir.

MR. SEGAL:  No, no.  The answer is not done.  OBJECTION.

THE COURT:  Have you finished your answer?

THE WITNESS:  Yes.

THE COURT:  He finished.  He said he was finished.

MR. SEGAL:  I'm sorry.  I apologize.  I thought I was hearing the last words trampled on.

THE COURT:  All right, ask him one more, please.

BY MR. MURTAGH:
Q  My question, Professor Osterburg, is, based upon the photographs of that footprint and the record--
A  (Interposing)  You are talking about the bloody footprint?
Q  Yes, sir.  Can you say, in your expert opinion, that footprint was not made by Dr. MacDonald?
A  Owing to the absence of ridge lines, I cannot say that that is Dr. MacDonald's footprint.
Q  That is not my question, sir.  My question is: can you say that it is not his footprint?
A  I made no examination to determine whether it was or wasn't his footprint--
Q  (Interposing)  Thank you.
A  Are you talking of general morphology?  General morphology means "shape."
Q  Yes, sir.  I know.
A  Is that what you are speaking of?
Q  Well, I want to know whether you can tell us, based on your examination, whether it is not Dr. MacDonald's footprint?
A  My examination was limited to examining the print--the bloody footprint--to ascertain whether there was or was not ridge line detail which then could characterize the print so that everyone would agree as to whose it was if we had a record print with which to compare it.
Q  All right, now, with respect to certain rules--
A  (Interposing)  Certain what?  I'm sorry.
Q  I'm sorry--certain rules or precepts to follow by the first officer at the crime scene that were read to you by Defense counsel--did I understand you to say that the preservation of life takes precedence over the collection of evidence?
A  Yes.
Q  And would you agree that, from the investigator's standpoint, he should err on the side of the preservation of life as opposed to collection?
A  If there is to be error, yes.
Q  Do you know what Dr. MacDonald said to the MPs when they came into the house?
A  No.
Q  Do you know what instructions, if any, he gave them?
A  No.
Q  Do you know whether he told them or not that he was a doctor?
A  I believe I recall reading that.
Q  Do you know the extent of his injuries?
A  No.
Q  Would it be accurate to say that with respect to this crime scene, it was both a crime scene and a medical emergency?
A  You could view it that way.
Q  Would you view it any other way?
A  Yes; Dr. MacDonald apparently required some medical attention and it should have been gotten for him.
Q  Do you know that it was not gotten for him?
A  No; I understand he went to the hospital.
Q  Did you ever have a case involving an injured person at a crime scene who was not considered a suspect at the initial entrance of the investigators on the scene?
A  An injured person at a crime scene who was not considered a suspect?
Q  Yes.
A  Certainly.
Q  Okay, and did you ever have a case in which this injured person at a crime scene later developed as a suspect?
A  Certainly.
Q  But you didn't know it at the time?
A  That's right.
Q  In the light of hindsight, would it have been better to consider him a suspect from the outset?
A  Possibly.
Q  Now, with respect to--
A  (Interposing)  May I further qualify that--the last answer?
Q  Certainly.
A  In homicide, whoever reports the homicide is generally considered to be a suspect even if it is someone ostensibly saying that they were just walking along a path and discovered a body.  They will be checked out to see what they were doing there and so on.
    Normally, in a homicide, the person that reports the homicide is considered a suspect, but it varies in degree, depending upon circumstances.
Q  Now, let me add another fact or another hypothetical: suppose that person who reports the crime is injured in some fashion and demands medical attention?
A  Well, they should get medical attention.
Q  Well, my question is--
A  (Interposing)  If the injuries you perceive--if they look as though you should, you err on the side of getting medical attention.
Q  And you would not consider him a suspect or treat him as a suspect as opposed to a medical emergency?
A  Well, they need not be separated.  You could--they need not be separated.  A person could be treated and still be a suspect.
Q  Treated at the crime scene?
A  No, at the hospital?
Q  But you would not retain the suspect at the crime scene?
A  Not if he needs medical aid; no.
Q  You wouldn't interrogate him at the crime scene?
A  No.
Q  You wouldn't take his clothes off at the crime scene for preservation?
A  No, I'd get them at the hospital.
Q  Now, with respect to these precepts that Mr. Segal read you from the textbook, my question is: did I understand you on direct to say that you had participated in collection of evidence at some 200 crime scenes?
A  No; I said homicide crime scenes.
Q  Homicide; yes.  I'm sorry.
A  Many, many more crime scenes--not homicide crime scenes.
Q  Let's talk about homicide crime scenes.  How many?
A  Yeah.  The answer is yes.
Q  Two hundred; okay.  How many of those, in your opinion, were properly processed?
A  When I was doing it?
Q  No, sir; with respect to those scenes.
A  We are talking about 200 crime scenes that I was at.
Q  Well, I'm talking about the whole scene.
A  The entire scene?
Q  Yes, sir.
A  I would say all when you say "properly processed."  Now, if you mean perfectly, rather than properly, and I make a distinction between perfectly and properly, I would say properly processed--all.
Q  All of them.  Okay, now, with those 200 properly processed homicide scenes, in how many cases were all--each and every one of the--rules or precepts that Mr. Segal read to you followed?
A  Would you repeat them one by one and I will tell you.
Q  Well, I believe you testified that you were familiar with the--
A  (Interposing)  I said I agreed with them, but many of those had dealt with the investigator in charge of the scene before I got there.
Q  And you were not in that position?
A  That's correct.
Q  Now, of your own personal knowledge, sir, do you know that all of these precepts were not followed in this case?
A  Would you read them to me and I will try to recall the testimony?
Q  I think in the interest of time I will pass on that.  Now, with respect to 1970, where were you, sir?
A  In 1970?
Q  Yeah.
A  In Chicago--in February, I was in Bloomington, Indiana, I think.
Q  And at that time had you published in your field of criminal investigation?
A  Yes, you have my vitae and the dates of publications are on there.  The answer is yes.
Q  When did you first meet Professor Segal?
A  Meet Professor Segal--it was fairly recent, but I'm trying to think of the circumstances when I met him.  It was, I guess, within the month.
Q  Within this past month?
A  Within the month.
Q  Now, Professor Osterburg, what would be the sum total of the time you have spent within the crime scene in reviewing the evidence in this case?
A  I spent around four hours looking at the crime scene, and another 12 hours reading the testimony.
Q  Sixteen hours total?
A  And then discussing the testimony with Professor Segal.
Q  But in terms of your independent investigation and research, would 16 hours be correct?
A  Thereabouts.
Q  Okay, Professor Osterburg, with respect to the exhibits which have been admitted into evidence in this case, do you have any personal knowledge that any of those items are not what they purport to be?
A  No.

MR. MURTAGH:  Okay, thank you.  No further questions.

MR. SEGAL:  Just one very brief matter, Your Honor.


R E D I R E C T  E X A M I N A T I O N  12:23 p.m.

BY MR. SEGAL:
Q  Professor Osterburg, in a crime scene such as the one we have been talking about here, where there is both blood evidence and possible fingerprint evidence, do the criminal investigators have to make a choice as to whether they are going to collect blood or collect fingerprints?
A  Well, yes; they do make a choice and should make a choice.
Q  And how is that choice rationally made?

MR. MURTAGH:  I would OBJECT to that.

THE COURT:  OVERRULED.

THE WITNESS:  We have two competing--as counselor, Mr. Murtagh said--demands: you want to get fingerprint evidence as quickly as possible and you want to preserve the blood.  Now, the question is, what is the blood being preserved for.
    As I have said, there are two reasons: one is for grouping purposes, to ascertain the group of a stain--is it even human blood.  The second purpose is to study the pattern of splashing to determine the impact site from whence that stain arose, and through that information and evidence to reconstruct, if there is enough information, how the crime was committed.
    Now, if there is a lot of blood around, reconstructing how the crime was committed can be very important; and depending upon the circumstances what is being said and so on or what is being thought subsequently upon investigation.
    So, for those stains that are large enough to preserve because they can be grouped, I would be very careful about processing in that area with fingerprint powder.
    But if the stain is only useful for directionality of splashing, site of impact--I don't think you have to be that careful.
Q  Is it fair to say that based upon your experience and knowledge, it is possible to accommodate both the need to develop fingerprints and to preserve the relevant blood evidence?
A  Yes.

MR. SEGAL:  I have nothing further, Your Honor.


E X A M I N A T I O N  12:26 p.m.

BY THE COURT:
Q  Professor, there was a Government witness who was asked the question as to what her definition of "forensic science" was.  I didn't feel the answer was entirely adequate.  Were you here?
A  No, I was not.
Q  Well, can you tell us, then, what is "forensic science"?
A  I would be pleased to.  Forensic science is divided into two main branches.  One is forensic medicine, and beneath that you subsume serology, psychology, psychiatry, and so on.  The other major area is criminalistics.
Q  You are telling me what it consists of.  I just want a definition of it.
A  Well, I think I--we call this a taxonomy.  I am trying to show that there are two areas that are quite different.  Criminalistics, I can--
Q  (Interposing)  I am going to withdraw the question, then.

MR. SEGAL:  May I ask it, Your Honor?

BY THE COURT:
Q  Are you a forensic scientist?
A  I am a criminalist who is a forensic scientist.  I think I can make it clear in about two sentences, Judge.
Q  All right, make it clear, then--if I don't have to apply to lawyers' rule and multiply it by two.
A  They may be long sentences.
Q  Go ahead.
A  A criminalist's aim is to establish a connection between the crime scene evidence and the perpetrator.  Now, the evidence may be brought to the crime scene by the perpetrator leaving such things as a fingerprint or a footprint, or it may be evidence taken from the crime scene such as a hair, blood splatter, or possibly the loot that prompted him to break into the place in the first place.
    Those are the--linking crime scene and criminal together is one of the major areas of criminalistics concern.  The other is reconstructing how the crime was committed.
Q  Do you consider that forensic science is a sort of fringe area of criminal justice education?
A  You must have read my article, because I wrote an article in which I used those terms.  I see you are surprised, but the title was, I think, "Criminalistics: A Fringe Area of Criminal Justice?"
    In the reproduction of the paper on the program, the question mark was omitted.  That was a serious omission.
    My view is, no, it is not a fringe area of criminal justice.  It is a main branch of criminal justice.
Q  Do you know a man named Richard H. Ward?
A  Yes, I do.  And Dr.--
Q  (Interposing)  And he quoted you as saying that you say you were in error?
A  I would definitely say that, and I told him so.
Q  All right.  Well, so that you will not be further mystified, but by one of the strangest coincidences in the world, I read it last night; and I just wanted to know if you still adhered to it.
    You say you do not, and that's all I want to know; but now I will let the lawyers ask you anything you want to about it.

MR. SEGAL:  Thank you, Professor Osterburg, you may step down.

THE COURT:  Call your next witness.

(Witness excused.)

MR. SEGAL:  May we see Your Honor briefly in regard to the next matter?

THE COURT:  Come up.


B E N C H  C O N F E R E N C E

MR. SEGAL:  Your Honor, as our next piece of evidence we would offer the prior testimony of Dr. William Neal, who was the pathologist who pronounced the deaths.  Here is an affidavit of our efforts to obtain his presence in court.
    He testified under oath at the proceedings in this case in 1970.  Our process server has ascertained that Dr. Neal is away on vacation and cannot be reached.  The prior testimony was subject to cross-examination by Government counsel.
    He has been referred to by Mr. Ivory in his testimony.

THE COURT:  How long is he going to be on vacation?

MR. SEGAL:  Several weeks.

MR. BLACKBURN:  We would seek to oppose this, because Dr. Neal will testify as he did at the Article 32, contrary to the testimony of Ivory, Shaw, and Connolly, that he moved the bodies of each of the victims.  There was cross-examination.  The Government does not believe it was adequate cross-examination, and we will be deprived of that right to cross-examine him.  If he is on vacation, we would suggest that perhaps that vacation be interrupted because some of our vacationing witnesses were also interrupted.

THE COURT:  Your Honor, we do not know where he is on vacation.  Let me point out, first of all, the Government listed him as a witness.

THE COURT:  Well, have you got him under subpoena?

MR. SMITH:  We have tried.

MR. SEGAL:  We expected that they were going to have him here.

THE COURT:  Did you have him on your witness list?

MR. BLACKBURN:  I believe he was.

MR. SEGAL:  Absolutely.

MR. BLACKBURN:  He was on the witness list.

THE COURT:  Did you have him subpoenaed?

MR. BLACKBURN:  Yes, sir.

THE COURT:  And you released him?

MR. BLACKBURN:  No.

MR. MURTAGH:  We didn't call him.

MR. BLACKBURN:  We didn't call him.  See, we had a number of people on the witness list that we did not know whether or not we would in fact use them, so we had them on an on-call type of thing, but I do think that further evidence beyond this affidavit ought to be made to locate this witness.  I don't see how the Defense can--

THE COURT:  Well, I think I will defer this.  Go on to something else and we will see about this.

MR. BLACKBURN:  We will--

THE COURT:  (Interposing)  I will put the onus on you of finding him and see whether or not he can be reached.  If he is under subpoena and hasn't been released, he is supposed to be here anyway.  He hasn't got a right to take a vacation, at least without getting some kind of clearance.

MR. MURTAGH:  For the record, I provided Dr. Neal's address to Mr. Segal in 1975.  He is not a surprise witness--

MR. SEGAL:  (Interposing)  Nobody said that, Mr. Murtagh.

MR. MURTAGH:  What I said was, before August 16th, he should have taken some efforts to insure that the potential witness for the Defense would, in fact, be available to him.  I don't think it is the Government's onus to have his witness here, but we will still try and find him.

MR. SEGAL:  Your Honor, we fit him within the definition of a "witness who is unavailable."  The reason why we need it, if not today--tomorrow--is our next series of witnesses rely up-on--need to have the predicate information that Dr. Neal provides.
    Now, if the Government thought he was important to their case, then they should have put him on.  I notice they only complain when the Defendant wishes to call their witness who they never said would not be here or be available.
    We have done what is necessary under the rules to get him.  I have put my signature under oath.

THE COURT:  You've done everything except issue a subpoena for him, apparently.

MR. SEGAL:  We issued a subpoena.  We could not serve it.

THE COURT:  When?

MR. SEGAL:  The facts were all set out here.

THE COURT:  Well, just tell me.  I haven't read it yet.

MR. SEGAL:  As soon as we found out that he was not going to be called as a witness, we sought out a person to serve the subpoena, sent the subpoena to him--

THE COURT:  (Interposing)  Where is this fellow ordinarily?

MR. SEGAL:  Fort Worth, Texas.

MR. BLACKBURN:  Your Honor, we can locate him, I am sure.

MR. SEGAL:  Do you want to bring in all the rest of the witnesses that we are going to have to read because they can't be found?  There are people you might have to bring in.  I will tell you some more.

THE COURT:  I think, now, in the interest of time, if you've got others, that you ought to tell them just as fast as you can, because it is too late in the game.  I don't want either side ambushing the other.  This lawsuit ought not to be tried on such basis on either side, and I am not going to have it, if I can help it.

MR. SEGAL:  I agree with that, Your Honor.  Our problem is: we did what we know under the rules we should do which is try to subpoena.  We are now in the position--because we only learned when the Government rested its case, that they weren't going to call him.
    Now, our problem is: we have other medical witnesses who are going to be lined up.  Maybe we should set some sort of parameters as to how long we have to wait for the Government to get a report back.  It seems to me that a day is all that is required.

THE COURT:  I think they can find out something today.

MR. SEGAL:  All right, Your Honor.

MR. SMITH:  Thank you.

(Bench conference terminated.)


MR. SEGAL:  May I file with the clerk my affidavit?

THE COURT:  You may file it with the clerk, but leave one with me.

MR. SEGAL:  Yes, Your Honor.

THE COURT:  You wouldn't want me to go through the whole noon hour with nothing to do, would you?
    Any further evidence for the Defense?

MR. SEGAL:  Yes, Your Honor.  I call Dr. John Thornton, please.  He will be in forthwith, Your Honor.  We had expected the other procedure first, but he will be in shortly.

THE COURT:  All right.


1 Note from Christina Masewicz: In the original transcript, this question and the next question appear consecutively, with no answer shown in between.
 

 

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