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1979 JEFFREY MACDONALD CASE TRIAL TRANSCRIPT

August 23: Jeffrey MacDonald (direct examination)

F U R T H E R  P R O C E E D I N G S  9:15 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 Wednesday, August 23, 1979, at Raleigh, North Carolina.

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

THE COURT: All right, we will be seated and come to order.  We have some motions to hear this morning.  Mr. Marshal, take a peep out.  If there is anybody out there now that wants to come in, all right.
   Otherwise, no one else can come in until we got these motions served; and no one go out.
Anybody in who wants to go out in the next five or ten or 15 or 45 minutes, please leave now, will you?
   All right, we will hear your motions now.  The first one is the motion of the--I take these in the order that you listed them--the Motion of the Defendant to Dismiss for failure to disclose Brady materials.  You want to be heard on that?

MR. SEGAL: The Motion to Dismiss and which in the alternative prays the court for such other relief as it deems appropriate under the circumstances---

THE COURT: (Interposing) Yes, sir.  Let me interrupt to say that I have read all of the mo- tions and, as much as I could, all of the authorities cited in support of your respective posi- tions.

MR. SEGAL: I am only going to point out to the court that we are not asking the court to route through the Government's file.  We are not asking Your Honor to make any search.
   We are saying we have enumerated here quite specifically the things that we have reason to believe exist and which we have reason to believe, for the facts set forth in our motion, that they are potentially exculpatory.
   The government, as provided yesterday, has given us Mr. Hodges' statement as to Febru- ary 17, 18, and 19.  The Government has also given us as of yesterday the statement of Dr. Sadoff that was taken.
   However, I think what remains and which is perhaps most clearly and strongly Brady mater- ial are Defendant's own letters written to either his wife, which were taken--I am not saying improperly, Your Honor, which were taken or in the possession of the Kassabs, and which we have reason to believe either the letters in the original form were given to the Government, or the copies thereof were given to the Government.
   We have also asked for the letters between the Defendant and his wife, which again not in any improper fashion were acquired by the Kassabs in 1970 and 1971, at their own instance.
Again, I think they were made available to the Government.
   I think the Government has no vested interest--if they have them--in keeping them from the Defendant.  I think on their face they would reveal matters of family relationships, the attitude toward the pregnancy by Mrs. MacDonald, the attitude toward family and children.
   Those things clearly ought to be seen as potentially exculpatory, and we should be able to have those.
   Lastly, I press upon the court the fact that there is no vested interest in the Government any longer to hold back the non-grand jury statements which will be asked for as Brady ma- terial here, of all the witnesses that they listed on the pre-trial notice of the witnesses that they have given.
   Some of them we have received from the Government on earlier occasions, but we say of the 88 there are a substantial number of people there from whom we have no statements and we have never received them.
   And I think that there is always the inference that the Government chooses not to call a witness, while on one hand it may be nearly cumulative, and that's why the choice is made; and on the other hand it may be that the witness' testimony isn't helpful to the Government and could be or has a tendency to be helpful to the Defendant.
   Again, I close by saying, we have been specific in what we are asking for.  We are not making any shotgun demands.  We have said these are the things that exist, that we know about, and I think the reasons why we should have them are set forth fairly clearly in the request to either dismiss or for alternative relief.

THE COURT: Thank you, sir.  Mr. Blackburn, do you want to respond to that?

MR. BLACKBURN: Yes, sir.  With respect to the list of witnesses, I would point out to the court that at least 30 or 35 of those witnesses were evidence custodians in the chain of custody.  And the chain of custody not presenting itself as a problem afterwards is the reason a number of those witnesses were not called.
   The other reason that a number of witnesses were not called was simply that the evidence would have been cumulative, and we were able to, in our opinion, prove something through another witness, making that unnecessary.
   With respect to non-grand jury statements, we do have this morning about 20--I guess about 20 folders--statements, some containing grand jury material, some containing non- grand jury interviews with potential witnesses that were on the list, that we are prepared to turn over as soon as we can work out getting a receipt, you know, from the Defendant this morning.
   I would make reference to some of those.  They include the remaining psychiatrists--their testimony--Dr. Mack and Dr. Bailey, and I believe Dr. Courtland.
   Also, they include the military policemen--a number of military policemen who testified--as well as some who did not testify.
   I would also point out to the court that all of the Article 32 testimony, of course, has al- ready been given to the Defendant.
   With respect to the letters between Dr. MacDonald and his wife, the Government simply does not have those and has never had those, and I have never seen them.
   The only letters that we have, which I think we did make available to the Defendant during the course of this trial, were letters from the Defendant to the Kassabs, which I know one was introduced in the trial by the Defendant and one by the Government.

THE COURT; All right, sir.  Well, gentlemen, the discovery available to a Defendant and to the Government, too, for that matter, in a criminal proceeding, is outlined in Rule 16.
   And it has been held that that does not authorize the discovery of statements made by the Government witnesses or prospective witnesses, except as provided by the Jencks Act.
   Now, it is my invariable practice to implore the Government to display everything in their power that could in any way be helpful to a Defendant.  If you don't do it you run afoul of the Brady Rule, and you will be back.
   And of course one of these days it could all be--in connection with a post-trial proceed- ing--be compelled to be disclosed, and then we could see whether or not it does.
   The Government takes that chance.  You say that you have nothing that is exculpatory.
That's your position at this time.  With respect to the grand jury testimony, that is covered in Rule 6.  And you, I assume, are standing on your right with that law, but you are going to let him have some?

MR. BLACKBURN: Your Honor, we are going to give it--what we are giving to the Defendant is basically Jencks material of witnesses that we did not use, which would include grand jury material; it would include statements.

THE COURT: Now, at this late date, of course, another thing that concerns me is that they would give rise to further investigation, subpoenaing other witnesses from all over the coun- try, and that kind of thing, and delaying this trial.
   And I don't want that to happen.  I am going to leave the Brady material motion exactly where it is, reminding the Government again that it is their responsibility.
   If you've got anything that is helpful to this Defendant, let him have as quickly as you can.
   Let's get on to the Rock Report.

MR. SEGAL: If Your Honor pleases, I think the report of Colonel Rock, which is the Article 32 investigation, fits precisely within the rule for official reports, set out under 803(8)(c).
   I mean, I think we have spelled it out in our memoranda---

THE COURT: (Interposing) Yes, let me interrupt to say that you started off and threw me completely off base by pitching your motion under 803(24) and 804(b)(5); so I thought that those were completely without any merit at all, and not until you came with some later sub- mission and re-filed your motion under 803(8)(c) did the thing evoke any particular interest on my part.
   And unfortunately, that was at about 11:00 o'clock last night; but I have worked--let me ask you to begin with--let me ask the Government.
   In the latest submission on yesterday by the Defendant, he says that you have finally con- ceded that it came directly under 803(8)(c).
   Are you making any such concession?

MR. BLACKBURN: No, sir.

THE COURT: I did not see it explicitly in your submission.

MR. BLACKBURN: We didn't mean to imply it either.  We did not mean to imply any conces- sion.

THE COURT: Now, let me ask both of you this question, preliminarily: is the evidence before this court identical with that before the military investigating body?
   Is this a different case in any respect?

MR. SEGAL: I think Your Honor has asked, as I understand it, two different questions.  First of all, the evidence is not identical.  There are findings of fact that were made by Colonel Rock in terms of the things that he actually did, observations that he made that no witness has testified to, as to physical circumstances, physical events in this house, about what could or could not be seen.
   He conducted experiments about visibility.

THE COURT: You mean he did this himself?

MR. SEGAL: Yes, sir; he did himself.  It is in the 25 findings of fact.  This was done very much, as Your Honor is familiar with, in a complex civil case where the court will make a se- ries of findings of fact on the matters heard.
   And in his report, as we pointed out in our memorandum, he has made approximately 25 findings of fact.  A  number of them are based upon his totally own independent investiga- tions; that is, experiments he conducted in terms of what could or could not be seen by a person lying on the sofa in the position that Dr. MacDonald has testified to, and which has been described by the Government in the reading of the various statements on direct exami- nation and which will be described again by the Defondant, when he testifies in this case.

MR. SEGAL: (Continuing) He talks about what could be seen when certain lights are on, with the light on in the kitchen or not--what could be seen.  What is the situation with the coffee table in the living room?  Does it always turn over on the side.or turn upside down?  He makes it an experiment.  He makes a finding of fact.
   He also notes damage to furniture and explains the context of how he perceived that to relate to the position of the coffee table.  He also makes certain findings of fact as an officer over lesser ranked officers and enlisted men, an to whether they, in fact, did their jobs satis- factorily based upon their sworn statements.

THE COURT: I found--or seem to recall--that Rock was a resident of Raleigh.  Where is he?

MR. SEGAL: I do not know, sir.  I believe the Government in its last---

THE COURT: (Interposing) Did you issue a subpoena for him?

MR. SEGAL: Sir, we attempted to interview Colonel Rock on several occasions, both in 1975 and again the past year, I believe.  He said most respectfully--not in any offensive manner-- that he deemed it better not to speak to us.  I will say that we did learn, however, that Government Counsel has spoken with Colonel Rock considerably at some point in the course of either the grand jury investigation or since then.

THE COURT: You may have misunderstood my question.  I asked if you had issued a sub- poena for him.

MR. SEGAL: No, sir; we did not subpoena him.

THE COURT: Very well; does anybody know where he is?

MR. ANDERSON: I understand he is available In Raleigh, Your Honor.  I talked to a friend of his
a day or two ago, and I think he still lives in Raleigh.

THE COURT: Did the Government issue a subpoena for him?

MR. ANDERSON: Not that I know of.

MR. SEGAL: I think the issue here, Your Honor, is that 803, of course, are rules that have nothing to do with availability.  They say, "whether or not available," this testimony is to be offered as admissible if it meets the test here.
   The is one of the very, very extraordinary situations, again, where this is the only type of case--the one we are in now--where the report of an investigation--the official investiga- tion--is introducable, because it is by the Defendant against the Government.
   The rules are quite explicit.  Of course, because of the Sixth Amendment confrontation right, the Government cannot do this.  This was their investigation, Your Honor.  It is not something the Defendant foisted on them.  It is nothing the Defendant caused.  It is the very same government.  It is not a different sovereign.
   I mean, the United States may proceed in this case either through its military agencies, or could have come here in 1970 to the same court.  But it is one government.  It is in virtue in this case of an admission of a party opponent, to be treated this way.
   But I think the way it fits most clearly into the rules of evidence is as an investigation.
The Government has insisted from day one, contrary to my own technical interpretation of the law, that this was an investigation.  They have to live with it.  It says so here.
   Now, the only question, I think--not that whether 803 makes it admissible--I think it makes it admissible beyond peradventure without any question--it is relevance.  It may be, you know, stating the obvious, but the definition of "relevance" as set forth here is anything which bears on the ultimate issues of the case would be relevant in this case.
   Is this Colonel Rock's report about some other matter which tangentially deals with the MacDonald case?  Not at all.  It has the sole purpose of being an official investigation under authority of law to make some findings, to make some recomendations, to make some con- clusions.
   It did it in a fashion which has really, you know, a substantial basis for recognition as being thorough and complete.  The fact the Government didn't like the results and that after nine years of hindsight has guzzied up the Article 32 and presented it again--with the only, I would say, the only difference between these proceedings and 1970 are the following: peo- ple who were wet behind their ears, fresh out of college--you know--who had a B.S. in Chemistry and a couple of semesters in graduate school when the draft grabbed them, were put into the CID laboratory and given basic minimal training.
   Today, they are Ph.D.'s in chemistry, but it doesn't change what they did then.  It is the same old folks that came here.  The case has the same witnesses.  But one thing has hap- pened, of course, and if Your Honor would like, I would submit the report itself to the Court for examination.
   The Government has done something--and I wish I could point out the name of the Fourth Circuit case.  There is a Fourth Circuit case that talked about double jeopardy, that it won't allow the prosecutor to try a case once--then see what they have done wrong, what they would like tactically to do otherwise--and then re-try it.  My memory fails me.  I could find the case for you.  It was talking about double jeopardy and one of the reasons for it.
   No dress rehearsals allowed.  That is what the Government wants.  They want to treat 1970 as their dress rehearsal, in which they fall on their face.  At least, Colonel Rock thought so.  And now, we are going to clean that case up.
   The only difference is, Your Honor--besides the fact that we have all aged and gotten a little grayer and some have gotten a few more degrees--is the fact that they have taken out certain witnesses, all the M.P.'s and other people--you know, Dr. Neal, whom they should have called in this case.
   And they fight us tooth and nail about reading his sworn testimony--you know--everything in that case which was theirs and they were required to put on, but which embarrassed and hurt the Government's case--they are taking that out.  They want to slide by with it.  All right; that is one difference.
   The second difference is, on top of all of Dr. MacDonald's prior voluntary statements in the April 6th interview, Caverly's interview and his voluntary testimony on behalf of the Defen- dant, his examination by the investigating officer, they have now additional testimony from the grand jury--again, voluntarily given.  That is new in this case.
   Finally, Your Honor, what they have are the famous--or perhaps, some people might refer to them as infamous--Stombaugh experiments, you know, as to how many fibers fall from a torn garment provided you never do any experiments and find out how they work--the exper-iments which were designed not by scientists, but by lawyers.
   Your Honor has heard that.  The jury has heard that.  But this is otherwise the same physi- cal evidence, the same case, in all significant ways.
   One other thing; I have been negligent in not pointing this out.  One of the strictures about the speedy trial rule, Your Honor, has been the terrible fear of manipulation of witness memory.  It is one of the things mentioned in the majority opinion of the Court of Appeals in this case, when the Court ordered this case dismissed for denial of speedy trial.
   Pamela Kalin Cochran is exactly the kind of nightmare that the Court was talking about, and the Supreme Court in earlier cases.  Five years after the fact--four and a half years after the fact--having been interviewed, having been interviewed about certain things, and which she had seen these things and knew them, she denied any identification of the knives and all the rest of it--denied any knowledge of the ice pick being in the MacDonald house.
   And then she sits here on the stand, having been--you know--processed through the grand jury--no one else was there--sits there and says, "Yes; I had this vision four and a half years later, staring at a picture outside of the grand jury room of Dr. MacDonald."
   Your Honor, if there is ever an area of testimony which ought to be viewed with the grav- est of doubt and suspicion, it is that kind of testimony.  That is what they have added.  That is the new part of the case.
   Now, aside from that, the case is similar, but the evidence has been changed in terms of what witnesses are called.  Neal hasn't been called in here, sir.  Other witnesses--you know
--M.P.'s who have facts.  There, personnel have not been called.  They are all covered there.
   But, most importantly, you have the findings and evaluation from a military standpoint.
We, as lay people and non-military people, don't have to pass judgment on whether the CID did a good job or not.  That was an official finding of the effectiveness and control of the crime scene; of the effectiveness of the investigation of the case; of the failure to protect the evidence in this case; of the process they went by to get evidence--whether it was lawful, proper; whether this is a case where one could make deductions and inferences from the evidence.
   Now, all those reasons say that was clearly relevant.  The last issue--is it unduly prejudi- cial?  Anything that hurts the other side is prejudicial, Your Honor.  The test is, is it unfairly prejudicial?  I do not understand how, in this case, the Government is allowed to invoke the cry of unfair prejudice to their own investigation.
   It is part of the record of this case.  At the outset of the Article 32, Colonel Rock said, "I have several ways of going."  He could have simply read the reading file of the CID and heard a minimal number of witnesses, and what he said instead was, "I want you to put on all of the evidence, to review this properly."  The prosecutors did.  They went all out--five months
--longer than this proceeding, Your Honor.
   I think the amount of time and the amount of thoroughness in that case are beyond dis- pute.  Why, because the Government doesn't like the result, are they allowed to say it is confusing and prejudicial?  It may be seen this way.
   I want to offer one final example, and then I will sit down.

MR. SEGAL: (Continuing) Let us assume the situation, Your Honor, of an employee of the Federal government.  He flies a government airplane on a business trip for the government and he crashes and dies---

THE COURT: (Interposing) He what?

MR. SEGAL: He crashes.  The plane crashes and he gets killed.  And like in all such matters of aviation fatalities and certain major other accidents, the National Transportation Safety Board investigates the cause of the accident.  They write a report that says and they hear all the witnesses who say, "The Government was negligent as to the way they maintained this plane.  They were careless.  They were indifferent, and this person died because of the careless maintenance of this aircraft which should never have been able to fly."
   Then the survivors sue the same United States Government.  In that case they introduce the government's report.  Now, the same witnesses are being called.  The witnesses will be there as to how they maintained the aircraft.  The experts who gave opinions will be there.
   In fact, there is even less independent investigation probably than we have here where there are findings here that Rock made from experiments he conducted that no one else has done, and the Government is not going to be allowed to scream, Your Honor, "Unfair, unfair." These rules were not written by Defense lawyers, Your Honor.  Your Honor, if you will look at the roster of the membership of this committee, you will know who wrote the rules.
   They weren't designed by Defendants to defeat the Government.  The other way around is the structure of these rules.  But the Government should be hoisted on its own petard here.
What is sauce for them is sauce for us here, and the sauce we wish to serve the Government
is their report--their finding.
   In that crash case, Your Honor, there can't be any doubt that the Government, although it is trying to defend that it was not negligent maintenance of the aircraft, is going to see marching in against it the findings of the National Transportation Safety Board.
   It will say what?  It will say, "The Government was negligent."  The Government says, "Oh, unfair.  We are trying to try the same issue in front of the jury."  The answer is the Court will instruct the jurors: "This is an official investigation.  You have also heard witnesses.  You make your decision, but it is part of the facts of this case."  We are in no significant way different.  In our last submission, we point out a number of other cases that are similar situa- tions.
   The trouble is that the Government doesn't like the taste of the rules when it doesn't work its way.  I think simply in fairness to the Defendant that he ought to be entitled to offer a report which the rule makes so clearly his right to offer.

THE COURT: Have you found a case in any jurisdiction in which the findings of the officer conducting an Article 32 proceeding, or any other inquiry the object of which is to determine probable cause for the institution of a criminal action, in which such findings have been ad-mitted in evidence under 803(8)(c) or any other rule of evidence?

MR. SEGAL: 803(8)(c) is too new to have produced much appellate review.

THE COURT: Like we say to the witnesses, you just answer my question yes or no.  I'll let you explain.

MR. SEGAL: Certainly, Your Honor.  We have set forth the cases that we---

THE COURT: (Interposing) There are several cases.  There are several cases.  I said in a criminal prosecution.

MR. SEGAL: These are the only cases that we are aware of.

THE COURT: You have never found one; have you?

MR. SEGAL: We have no other cases to offer, but I must say that because the context is novel, the rule isn't.  I mean the rule could not be more plain.  It says you can introduce an official investigation and finding against the Government in a criminal case.  I mean I hope we are not reduced to another situation now where we decide that both Congress and the draft- ers and the Supreme Court had their backs turned on the possibility that MacDonald might make use of the rules.
   They weren't making it for him.  They didn't know that he might wake up and see the rules laying there.  I think we are in a situation here because there will be few criminal cases ever where this will come up, Your Honor.
   There is no doubt that the nature of the Article 32--you don't have to take our word for it.
It is not just a preliminary hearing.  It is a different beast.  And the Government's briefs ga- lore castigating the heck out of us about it explains it is an investigation.
   This statute which creates it--in those terms, Your Honor--Your Honor has used that term in referring to prior memoranda in this case that it is an investigation--Supreme Court in its argument.  We set that all out.
   That is what it is.  It is not the same thing as a hearing before the U.S. Magistrate on a matter.  It is a different kind of matter because the U.S. Magistrate has no power to go out and conduct his own inquiry, to make findings of fact, to make physical observations and come in.
   As a matter of fact, the hearing would be set aside if he did it.  He would become a wit- ness.  This is very much akin, Your Honor, if there is any parallel at all, it is to the inquiring magistrate in the Continental system of justice.  The inquiring magistrate in the Continental system may do the things the Article 32 officer did here.
   What happens is most Article 32's are so perfunctory they are rare that they are anywhere done on the scale and the care and with the extent that was done here.  There is no doubt that this was by any measure as good an Article 32 ever held in the history of that statute and probably the model against which in serious criminal proceedings in the military they ought to consider it, but it is not a preliminary hearing.
   I mean no magistrate could ever conduct these findings.  No magistrate could ever say to Dr. MacDonald, "I will only consider or permit you to have evidence of Dr. Sadoff in these hearings, provided that you will submit to Army psychiatrists."  He has no power to do that. He can either say "Yea" or "Nay," "admissible" or "not admissible."
   He ordered his own investigation and called his own witnesses.  I mean those things do not, taken in their totality, make or reduce this to a preliminary hearing.  In fact, there has not been a reported appellate case that does not, I think, change the clear meaning of the words in the statute.

THE COURT: Let me hear from the Government.

MR. MURTAGH: Your Honor, Mr. Segal is attempting to re-litigate a matter originally brought up in pretrial motions that were dismissed on double jeopardy grounds.  Your Honor denied them at that time and the case went up on appeals.  The argument was heard again before the Fourth Circuit.
   They did not decide it in view of their Speedy Trial decision---

THE COURT: (Interposing) Let me interrupt.  Wasn't some kind of motion filed in the Fourth Circuit after this trial was already underway to--what was the purpose of that motion?

MR. MURTAGH: What happened, Judge, was after the Supreme Court reversed the Court of Appeals--the (unreadable) decision based on Speedy Trial grounds--based on their lack of jurisdiction, because of the intervening decision in the United States v. Abney that double jeopardy claims are appealable, Your Honor, on an interlocutory basis, the Defendant re- raised his double jeopardy claim which was predicated entirely upon the military proceedings.
   Basically, the Article 32 report, Rock's report, the whole nine yards, as you will, was of- fered as a adjudication of his innocence and---

THE COURT: (Interposing) Is this the reason--I suppose it was a motion for Mandamus or something from this Court.  I remember something was filed in the Fourth Circuit.  I got a little short order, I think, saying it was denied.  What was that?  Just refresh my recollection.

MR. MURTAGH: I think that was based on a number of grounds, one of which was the Court's again denying the opportunity to re-litigate the Article 32 report so it was incorporated within it.  What I am getting at, Judge, there is a reported case and that is the second Fourth Circuit case, United States v. MacDonald, in which they directly addressed the issue of whe- ther the Article 32 is anything more than what the statute says.

THE COURT: What did they say?

MR. MURTAGH: They said it is not an adjudication.  It is not a proceeding in which the inves- tigating officer is empowered to determine guilt or innocence and that is exactly what this thing is being offered for here.  It is being offered, in effect, as a prior adjudication.
   The matter was again raised in the mandamus petition which, as Your Honor pointed out, was subsequently denied.  But what I am getting at, Judge, is that it does not really matter whether this was the biggest and grandest and most wonderful Article 32 investigation in the history of the UCMJ or whether Colonel Rock sat there in judicial robes with a wig.
   He was not empowered to do anything other than recommend.  The statute and the uni- form code--I'm sorry.  The Manual for Courts Martial which interprets the Article 32 specifi- cally provides that the recommendations of the investigating officer are advisory only, and I think Mr. Segal mis-states when he says Colonel Rock made a number of findings of fact.
   In the first instance, he was not empowered to find any facts.  I doubt whether he could have found them in the first place.  But be that as it may---

THE COURT: (Interposing) Well, he's telling me this morning and it struck me as a little bit odd as he says that maybe they do this on the Continent, but I never heard of the judge going out and making his own observations and experiments and coming up with factual findings.
   The question raised immediately in my mind was, was the Government permitted to cross- examine the judge?

MR. MURTAGH: No, sir.  The Government was not permitted to cross-examine the judge nor at the time that this so-called coffee table experinent was made, Colonel Rock's investiga- ting--I'm sorry--legal adviser chose to move the table in front of the coffee table so that it doesn't tip over---

THE COURT: (Interposing) Well, let's don't get into details like that.

MR. MURTAGH: ---but that's what I'm saying.  This was not a trial.  It was not an adjudica- tion.  It was an investigation.  It is not relevant to the evidence.  It is not entirely before this jury.  It is not the same case.  Why we are getting into the Stombaugh testimony, as it relates to the Article 32 investigation, completely baffles me because Stombaugh at that time had yet to hear of the MacDonald case.  So, what we are talking about is an attempt really to make a silk purse out of a sow's ear, put it in front of this jury to further confuse the issue.  Witnesses were called before the Article 32 investigation.  They are available to be called now.
   The names have been provided, and the addresses, and their prior testimony to the De- fense and, by Colonel Rock to the extent that he could testify an a witness then is available. I doubt that he is competent to testify as to what he thought.  And for this reason, Your Honor, we think it does not fit within Rule 803.  It is not relevant to this matter.  It would simply confuse the issue.  It would be a waste of time.  For that reason, Your Honor, we would pray that the Court deny the Defendant's notion.

THE COURT: All right, do you want to respond to that?

MR. SEGAL: I have a prayer that we never from the Government in this case about time wasted.  That is an absurd statement for the Government to make.  Talk about time-wasting, we match the Government three to one for any time that they think they have wasted here in terms of the Defendant's offer of this report.
   Let me just point out to Your Honor a couple of things: the statute empowered Colonel Rock to investigate.  The Government say it's an investigation.  It fits the definition of inves- tigation.
   Now, this matter that Your Honor raised some questions--that is about whether you have ever heard of a judge, other than in, I point out, the Continental system.  The point is, he is not a judge.  He is an investigating officer.  It is the same as the Highway Transporation Board--National Safety Board--going out and finding why that DC-10 crashed in Chicago; or more appropriate, in my hypothetical, where a Government employee--his survivors sue the Government, and the same Board that works for the Government investigates why it crashed.
And the Government was negligent.
   They have a duty by law to investigate.  They have a duty to conduct whatever experi- ments are necessary.  The Article 32--the Government was present at every stage.  They never objected to any of this.  They never said, "It is fallacious."  They had all the resources they have now.  There is no basis for them to come in and poo-poo it.
   It is this side of insidious to say that we were subjected to a five-month proceeding which then followed with a decision by the commanding general and call it nothing.
   The Government in this case, if Your Honor pleases, has itself faced with a rule which was designed for very few instances.  That is, when is a Defendant ever to be able to offer a re- port of an official investigation in a criminal case?  It is in this case.  The suggestion that the investigators were incompetent should have been made in 1970.
   Your Honor cannot here entertain or consider the suggestion that the investigation was incompetent.  It is a matter of law.  It was created by statute.  The Government did not object and participated fully.  They fully approved of these proceedings.
   For all of those reasons, I submit that although there has not been a case where this has been done, there has also not been a case where a soldier, after an Article 32, has found--as they have done in this instance, that the basis for the charges don't exist--that they will try to re-charge him again.
   That does not apparently take away the Government's right to proceed.  Why should it take away our right to offer their investigation in this case?

THE COURT: Gentlemen, I think the Defendant has at least a colorable right under 803(8)(c), because of its wording and because of the construction that it is possible to put on the ac- tivity and the results thereof of Colonel Rock in conducting the Article 32 proceedings.
   His recommendation, though, is of necessity contrary to the ruling that this Court made at the close of the Government's evidence.  That, in effect, said that there was not only proba- ble cause to indict this man, but that there was evidence from which a jury could find at that time, in this Court's opinion, that the Defendant was guilty beyond a reasonable doubt.
   I said, "They could find."  What they are going to find or what they will find, I have no idea in the world, and it is no concern of this Court, thankfully.
   I raised this question in my working of this thing last evening: can it be that the decision of an Army officer in an Article 32 proceeding can be allowed to persuade a jury that this Court was wrong in its rulings at the close of the Plaintiff's evidence?  I just do not believe--and we know the courts all the time construe rules of evidence and regulations of the Government.  I am inclined to believe that this one never occurred to anybody.  And the fact that it didn't probably supports the ruling which I am about to make--that this evidence cannot be admit- ted in the course of this trial here.
   I said that if this report is admissible, then why doesn't it fulfill the requirements of former jeopardy?  If not--if the former jeopardy plea is not valid, then won't this Court be in the anomalous position that the evidence in the case has been tried and the case has been deci- ded, and yet the Government has still got a right to put the Defendant to trial again?  Now, I just don't believe that is right.
   I am also concerned about the confusion which may arise in the minds of the jurors if this kind of evidence--if you concede that it is relevant--would create.  Won't a jury say, "How can this man not be guilty in the Army and be guilty in this court?"  Won't an argument ap- peal to the jury that, "In the Article 32 proceeding, there was only required to be a finding of probable cause to prosecute"?
   "If a four-week trial there didn't result in even that marginal finding, then how on earth can we, the jury," wouldn't they say, "say, on virtually the same evidence, that this man is guilty beyond a reasonable doubt?"
   If this evidence is admissible, won't any reasonable appellate court be bound to say that the motion to dismiss for former jeopardy should have been allowed--or in any event, that the Motion for Judgment of Acquittal should have been granted--for that on this evidence, no jury could find the Defendant guilty beyond a reasonable doubt?
   Gentlemen, I don't think that this evidence is admissible under any rule of evidence, and I don't think, if it is--that if it is relevant--that it ought to be admitted in this particular trial, and I will OVERRULE that motion.
   Now, with respect to your grand jury testimony, I believe we have alluded to that further. If they will let you have the evidence, it will be well and fine.  But if they insist on their right under Rule 6, I will deny that motion.
   With respect to James Friar, I will hold that one until you gentlemen can inform me a little more about it.

MR. SEGAL: May we have just one-half minute of the Court's time about that grand jury transcript?  The reason why another memorandum was filed is that Your Honor's suggestion that if we could show you that you had any discretion in this regard, that you would consider that.
   The memorandum was filed specifically as a result of bench conference on the subject, and it shows explicitly what Your Honor asked: that you do at this juncture of the case absolutely have the discretion.

THE COURT: I know that.  But what I am saying is that my study of this--I don't know what's in the grand jury things at all, but in the interest of getting this case--well, what is it--Jus- tice Holmes said, "in the interest of the shortness of life"--I don't think that we ought to ex- plore that any further.  If the rule does not command that it be done, I believe the discretion ought not to be exercised.
   So, I just won't allow that.  We will reconvene with the jury at 10:00 o'clock.

(The proceeding was recessed at 9:55 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.  We have been in session since about 9:15 and finished about five minutes to 10:00.  Now, we are ready to hear some more testimony.
   Let me say this, that we are continuing by these hearings and rulings made outside of your presence and hearing to move the case along, so you haven't lost any time today.

THE COURT: Any further evidence for the Defendant in this case?

MR. SEGAL: Yes, Your Honor.  The Defense calls Dr. Jeffrey R. MacDonald.

THE COURT: Very well.

(Whereupon, DR. JEFFREY ROBERT MACDONALD 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  10:01 a.m.

BY MR. SEGAL:
Q  Dr. MacDonald, where do you reside, please?
A  In Huntington Beach, California.
Q  Dr. MacDonald, are you married today?
A  No.
Q  Is there some reason why you are not married?
A  I can't forget my wife and children.
Q  Do you still have occasion to think about your family, even though it has been 9-1/2 years since they died?
A  Every day.
Q  May I ask, Dr. MacDonald, what are your strongest or most consistent memories of your wife, Colette?
A  Excuse me.  Colette was very beautiful and intelligent and warm.  She was a great mother and wife.
Q  May I ask, Dr. MacDonald, what are your strongest memories of your daughter Kimberly?
A  Of her beauty and her brightness.  She was very inquisitive, I think exceptionally bright--a delightful person, and very loving.
Q  Can you share with us, please, what are your memories of your daughter Kristen?
A  Well, she was the prettiest of all of us.  She was a little ball of fire.  She was a tomboy at 2-1/2 and she was very loving also.
Q  What sort of things did you and your family--the four of you, including the children--what sort of things did you do together?
A  We lived together.  We shared most everything.  We had a good life.  We were all friends.
Colette and I shared the children growing up.  We shared our life experiences.
Q  Prior to February 17th of 1970, Dr. MacDonald, what was the last thing that you, Colette, Kristen, and Kimberly all did together?
A  Would you repeat that?
Q  Yes, certainly; of course.  I am asking, prior to February 17th, what was the last occasion that the whole family did something together--an event that you shared together?
A  We had breakfast Monday morning.
Q  Was there some special occasion on that weekend before February 17th?
A  Valentine's Day.
Q  Tell us a little bit about what occurred among the MacDonald family on Valentine's Day of 1970?
A  We spent the day together.  We drove down to Hamlet Hospital.  I wanted to show Co- lette and the kids where I worked, one of my part-time jobs.
   Ron Harrison came over in the afternoon.  We spent some time talking in the living room. We had dinner together.  We stayed at home that night.  We played with the children, and I think that Colette and I went to bed relatively early because I was going back to Hamlet at 6:00 o'clock Sunday morning.
Q  Did you mark Valentine's Day in any way in your family that particular year?
A  Sure; we gave cards and gifts to each other.
Q  Dr. MacDonald, let me show you what has been marked as Defendant Exhibits 96, 97, and 98, and ask you first to tell if you know what--do you recognize, have you ever seen D-96?
A  Yes.
Q  What is D-96?
A  It is a valentine.  It is a card from my daughters.
Q  Would you please read what it says on the card and tell us whether it is signed, and by whom?
A  "To a Wonderful Daddy.  Dad, there are millions of daddies in the world it's true, but the nicest by far in you.  Love, Kim and Kristie."
Q  Let me show you what has been marked as D-97, and ask you if you have seen this, and tell us what is, please, Dr. MacDonald?
A  It is a card.
Q  One of the Valentine's cards?
A  I think that Kristie gave it to me.
Q  Would you read it, please?
A  "With sugar and spice and everything nice."
Q  Let me show you D-98 and ask you likewise to look at this and tell us whether you have seen it and what it is and who that's from.
A  It's a Valentine's card that Kimmie made for me in school.  It says "I'll trim my little Valen- tine with hearts and ribbons gay to tell you I love you today and every day."
Q  Is it signed?
A  "Love, Kim."
Q  Dr. MacDonald, in February of 1970, I think you had been married what--about six and a half years at the time?
A  That's right.
Q  Would you describe for us, please, what was the state of your marriage?
A  It was fine.  It was a very beautiful marriage I thought.  We were in love.  It was, as previously testified to, probably the best time in our marriage.  We had a situation where we had more time to ourselves.  We could spend more time with the children, and the financial obligations from years past were easing, and it was a good time.
Q  Were you happy with the idea of having more time to spend with your wife and children?
A  Very happy.
Q  How did Colette react to the opportunity that the situation in the Army presented to you in terms of being available to each other and being able to spend time together?
A  She was ecstatic.  She thought it was great.  I had originally been on orders to Vietnam, and the orders were changed.  I didn't realize that by going into the Green Berets I would be off orders to Vietnam but that, in effect, is what happened, and she was extremely happy that we had that year to spend together.
   I was scheduled to go to Vietnam in about September--August or September--the following year now.
Q  Dr. MacDonald, I want to show you some exhibits and ask you if you can tell us whether you can identify these.  Dr. MacDonald, I want to show you now a series of photographs that, as a group, have been marked as D-100 and ask if you can tell us, recognize, identify what these photos depict.

(Defendant Exhibit No. 100 was marked for identification.)

A  Yes, I can recognize them.  This is Colette and I when we were getting married.
Q  I ask you to look at another photograph in the D-100 series and tell us what this photo depicts.
A  This is Colette and I when Colette was pregnant in Chicago and another couple, the Allbrices (phonetic), that we were very good friends with in Chicago.
Q  Is that at the time that you were attending medical school?
A  That's correct.
Q  Let me show you another photograph in this series and ask you whether you recognize what is in this photo.
A  That's me with Kimberly as a baby in Princeton.
Q  Let me show you another photograph and ask you to describe what is there.
A  Yes; that's Kimberly.
Q  Can you tell us how old Kimberly is in the picture I just showed you?
A  Not exactly.  She was a toddler.
Q  I show you another photo and ask you to tell us what this depicts.
A  It's Kimberly and I on a couch in Chicago.
Q  About how old was she at that point?
A  One.
Q  I ask you to look at another picture in this series and tell us what this represents.
A  It's Colette playing with Kimmie.
Q  Do you know where that picture was taken?
A  At another house we lived at in Chicago.
Q  Tell us what this picture represents.
A  Kristie.
Q  Do you know when and where this picture was taken, Dr. MacDonald?
A  I can't tell where it was taken.
Q  About how old is Kristie in that picture?
A  Probably 18 months.
Q  Can you tell us what is in this picture?
A  No.
Q  Do you recognize yourself in there, Dr. MacDonald?
A  I sure do.  That is Kimmie and I studying for an examination in medical school.
Q  In 1965?  Those are your medical books there?
A  Yes.
Q  What is it that you and Kimmie are holding in this particular picture?
A  Ice.  I was playing in a football game the day before and had a bruise on my face, and Kimmie and I were both applying ice.
Q  Tell us what this picture represents?
A  That is Colette and I at my mom's home.  The picture is reversed, but that was probably just before our marriage.
Q  Can you tell us something about this particular photograph?
A  That is a photograph taken at Christmas time with Kimberly; that is Colette in the fore- ground.
Q  You say Christmas?  Christmas of what year?
A  It would have been just as we were--I think we were in Chicago.  It may have been the Christmas after that in Bergenfield, New Jersey.  I cannot tell by the photograph.
Q  How old is she, approximately, in this photograph?
A  Four.
Q  Do you recognize what is depicted in this photograph?
A  Colette and Kim swimming.
Q  Where was this?
A  I believe--that Is Lake Michigan.  That is in Chicago.
Q  How did you and your family happen to be there?
A  We were out for the day, with friends as a matter of fact.
Q  Do you recognize this photograph?
A  That is Kim and Kris.
Q  Kimberly and Kristen?  About what year is this.  How old are they in this picture?
A  This is--well, Kris is about a year.  I don't recognize the radiator.  It would be Bergenfield, New Jergey time.
Q  Can you tell us who the people are in the center of this particular photograph I am show- ing to you?
A  Yes; it is Colette and I in Chicago at a gathering at our apartment.
Q  Of medical students?
A  Medical students--Dr. Manson, Dr. McGann and some other friends.
Q  That is Colette standing, as I face the photograph, to your left?
A  That is Colette with me, right.
Q  In the center of this particular photograph?
A  That is Colette and I at a Princeton football game, I believe.
Q  Is that while you were an undergraduate student at Princeton?
A  That is right.
Q  Can you tell us what this picture depicts and about when it was taken?
A  We were at a zoo, obviously.  That is Kimmie and I.  I believe this was a children's zoo in Chicago in the park.
Q  Dr. MacDonald, tell us about this picture, please?
A  This is Kim and I playing.  I was just covering her up in the sand.
Q  Where would this be taken?
A  I don't know.  It was on a beach.
Q  Tell us something about this picture if you will, please?
A  This is Kim and Kris playing together in the living room.  This is apparently Bergenfield, New Jersey.  Kimmie is helping Kris.
Q  Is that the way the two children related?
A  Right.  As they got older, Krissie helped Kim.
Q  Can you tell us about this photograph, when it may have been taken,and tell us who is in the photograph?
A  This is new--obviously there are gifts involved and Kimmie is the center of the picture.  I believe that is Colette to the left.  No, that is Colette.  Okay.  And I don't know who the woman is to the left.  This was in--I can't tell what room this was in.
   Kimmie is about four going on five.
Q  Let me show you a photograph here and ask you if you can tell us about the people in this photograph?
A  Sure.  That is Colette in the center, Kimmie to the left, and Krissie to the right.
Q  What was Colette's condition at that time, in about March of 1968?
A  March of 1968?
Q  The photographs are dated.
A  I don't understand the question.
Q  Is there a condition--anything observable?  If not, we will just pass on.
A  No.
Q  Who is in this photograph?
A  That is Colette, and I believe Kris.
Q  Tell us about the people in this photograph?
A  That is my daughters.
Q  What are they doing there?
A  Playing.
Q  I have just two more pictures I want to show you, Dr. MacDonald, and ask you if you re- cognize this scene as depicted here, and tell us about when it took place and who is there?
A  That is Colette, Kim, and Krissie.  It is Christmastime.  That is my family.
Q  About what year?
A  1969.
Q  The last Christmas you and your family spent together?
A  Yes.
Q  Finally, I want to show you a photograph, and this is the last of a series, and tell us what this depicts and what you know about it?
A  That is Kim and Kris.
Q  Are the children dressed up in some kind of costumes, Dr. MacDonald?
(Witness nods affirmatively.)
Q  Would that be Halloween of 1969?
A  Yes.
Q  Do you see the clothing that Kristen MacDonald is wearing?
A  Yes.
Q  What is it, Dr. MacDonald?
A  Pajamas made up like a clown.
Q  The same pajamas that she was wearing on the night of February 17, 1970?
A  Apparently so.
Q  Your daughter Kimberly--is she wearing some kind of nightgown also?
(Witness nods affirmatively.)
Q  Can you tell us what it reads across the top of the nightgown, please?
A  "Little Angel."
Q  Dr. MacDonald, when you learned that your wife Colette was pregnant for the third time, how did you and she feel about this pregnancy?
A  We were very happy.  It was probably going to be our last child, although we wanted five.
Q  Why did you say it was probably the last child you hoped to have?
A  Because she had difficult pregnancies, and when we found out she was pregnant this time, we decided that would probably be the last child.
Q  Did you have some hopes for what the sex of that child would be?
A  Yes.
Q  Could you share that with us, please?
A  I thought it was fair that we had one boy.
Q  Was there anything that you were doing, or that you and Colette were doing together, that was special to take care of her health during that third pregnancy?
A  Yeah; she had varicose vein problems, and we were afraid that because of those problems she would get a blood clot in her leg and it would go to her lungs.  It is called a pulmonary embolism.  So we were taking care of her varicose veins.  We also had to make special ar- rangements for a competent OB-GYN doctor.
Q  Had you made arrangements for a physician's care for her?
A  Yes.
Q  Can you tell us a little bit about that, please?
A  I had made arrangements with a civilian OB-GYN doctor at Cape Fear Valley Memorial Hos- pital.  Don't ask me his name.  It escapes me at this moment.  We had written to Dr. Borno (phonetic), who was the physician who had delivered her and re-operated on her in Chicago with Kristie, and we had found that he had moved to Mississippi.  So we were tracking him down at the University of Mississippi School of Medicine to get permission to get her records from the hospital in Chicago so the doctor in Fayetteville would have her prior records of mul- tiple surgeries.
Q  Who had helped you find the doctor in Fayetteville?
A  Merrill Bronstein.
Q  Who testified here earlier in this case for the Government?
A  That is correct.
Q  Was Colette exceedingly frightened or worried about this third pregnancy?  Would you tell us about her attitude toward it and how she expressed her feelings?
A  We were both happy about the pregnancy.  I think there was some concern on Colette's part because she had had Caesarean sections.  I think that was a normal, rational fear.  We discussed it.  We obtained competent gynecology help.  We had discussed with Mildred---
Q  (Interposing) Mildred Kassab?
A  That's right--that she would come down and be available to help at the time of the birth. And we both felt that it would be the last pregnancy, but neither of us were unduly afraid about it.
Q  Now, when would that child have been due to be born?
A  Well, we weren't sure.  It was approximately late June or July.
Q  Of 1970?
A  Of 1970, right.
Q  Were you planning to be away from Fayetteville and Fort Bragg at the time that the child would have been born?
A  No; I was not.
Q  There has been some talk in some of the Government evidence about a trip that you might have been planning with one of the athletic teams at Fort Bragg.  Could you tell us about that and whether that would have (unreadable) in any way?
A  Sergeant Sherridale Morgan of the Fort Bragg Boxing Club had asked me if I would be a physician to attend the boxers from Fort Bragg, who happened to be very prominent in box- ing.  I believe they won the Continental United States Championship, and were going to Russia for a 30-day trip that was scheduled to go in mid-March and return in mid-April.  He asked me if I would be willing to be the physician for the trip.
   I advised him that because of my current security clearance I could see problems obtaining a visa with a boxing team.  He said he would clear that for me if I got permission from my commanding officer.
   I discussed it with Colette.  We both felt that a 30-day trip to Russia was an advantage and sort of a privilege, and a good time, and an honor.  And we both agreed I should do it.
Q  Was she reluctant at all at the idea you might be away in March of 1970?
A  She was not reluctant in the least.
Q  Now, I would like to move you, if I could, to the weekend of February 14, 1970.  We talked a little bit about the fact that you said you went with your family to Hamlet Hospital. Did you work at that hospital with the permission of the Army--and if you did, what were the circumstances that you were able to both be an Army doctor and also work at a civilian hos- pital?
A  The Army allowed Army physicians to moonlight at the civilian hospitals with written per- mission from your commanding officer.  It was a standing policy on Fort Bragg that Army physicians could work at community hospitals.  It essentially was a reciprocal arrangement.
The communities in the surrounding area did not always have enough physicians, especially in emergency departments.
   The Army felt that it did not injure the image of the Army at all.  As a matter of fact, they felt it was positive for the Army to have Army physicians moonlighting with permission from your commanding officer.
   And I obtained several jobs--one of which was at Hamlet, one of which was at Cape Fear Valley Memorial Hospital.  As a matter of fact, I was to shortly start at a third hospital, Lumberton.
Q  All of this--you actually had permission from Colonel Kane, who was your commanding officer at the time?
A  That is correct.
Q  You say you took your family on Valentine's Day over to the hospital?  Had they never been to that particular place before?
A  No, they had never seen Hamlet.  They wondered what it was like and I told them it was an unusual hospital, but they were great people and they were fun.  And I would like to have them see it.
   So we drove over.  It was about 60 miles from Fort Bragg.  Colette and Kimmie and Krissie and I drove over.
Q  What did you do at the hospital when you got there with your family?
A  We stopped into the Emergency Department and said hello to everyone.  I introduced my wife and kids to whoever was on duty.  I do not remember who was on duty.  And I showed them through Hamlet, and we drove home.
Q  What about the next day, which would have been Sunday the 15th?  Tell us something about what you did on that day?
A  I worked at Hamlet Hospital.  I got up, probably 4:30 in the morning, showered, shaved, drove the 60 miles to Hamlet Hospital and went on duty at 6:00 o'clock in the morning.
Q  Do you have any recollection of what that particular Sunday was like?  What significant events, if any, happened?  Was it quiet or peaceful or busy that weekend, or that Sunday?
A  The Emergency Department was relatively quiet.  I saw approximately 20--maybe 25-- patients over 24 hours, only one patient past midnight.  I was busier, actually, inside the hospital than I was in the Emergency Department.
Q  When you say "inside the hospital," do you mean in the wards and the departments other than the Emergency Department?
A  Hamlet Hospital is a small hospital.  There very frequently were not other physicians in the hospital.  There was one very sick patient that day in the hospital, and I essentially attended that patient throughout the day, as well as covering the Emergency Department.
Q  Did you get any sleep during Sunday or Sunday evening?
A  I probably napped Sunday morning, and I probably slept five or five and a half hours after mid-night Sunday night.
Q  Was that a normal night's sleep for you?
A  Five hours was almost a normal night for me; yes.
Q  What time did you get up on Monday morning, and where did you go?
A  I got up, I believe--as a matter of fact, the nurse awakened me--about about ten of 5:00.  I got up and showered and shaved and drove back to Fort Bragg through the fog.
Q  When you got back, did you go to your home or did you report to your duty station?
A  No; I went home and had breakfast with Colette and Kim.
Q  What happened at that breakfast--anything unusual happen?
A  No.
Q  What did you and Colette talk about?
A  Hamlet Hospital--I told them what had happened to the patient I had been treating the prior day.  It was a memorable patient.  We discussed, I guess, normal things.  Kimmie was getting ready to go to school.  I believe Kristie was still in bed.
Q  You mentioned that the patient you talked about was memorable.  Why was it a memor- able episode at Hamlet Hospital?
A  I believe that it was a 12-year-old girl who had a ruptured appendix and she had had surgery for that ruptured appendix and during the day--she had either been operated on the night before or in the middle of the night before I arrived at Hamlet Hospital, and she began hemorrhaging internally which is a little unusual following an appendectomy; and we have to transfuse her several times.  And we eventually located her physician who could not be made available to come into the hospital to continue her treatment.
Q  Was any other doctor available then when he couldn't come in?
A  No, so she needed to be re-operated upon.  She needed another surgery to stop the hemorrhaging and, after a rather lengthy series of patient interventions and encounters with her family, I got her transferred to another hospital where she was re-operated on.
Q  What do you mean when you say there were "encounters with her family"?
A  Well, her mother was very bright and wasn't missing much of what was going on, and she was trying to figure out where the surgeon was who had operated on her daughter and so was I.  But I didn't tell the mother that.  I explained to the mother I was attenpting to reach him and he was out of touch at the present, but we were transfusing the child, and I would obtain another surgeon if necessary.
   I eventually told the mother that I felt it was best if I arranged for surgery at another hospital and I did do that.
Q  After you had breakfast with your wife and your daughter Kimberly, what did you do next?
A  I went to work at my duty office at the Sixth Special Forces Group.
Q  Could you tell us a little bit about what you did that day and what were your responsibili- ties and duties at that time?
A  At that time I was second in command in the Group Surgeon's office.  There was a Group Surgeon who was superior to myself in position.  I was his second in command, and my title was Preventive Medicine Officer.  I had a wide range of duties, but Preventive Medicine Officer in the Army means several things one of which is checking latrines, making sure the mess halls are orderly and the check list is made in each mess hall.  I had duties for training Special Forces medics.  I had duties regarding dog lab classes, how to teach Special Forces medics to do surgical emergencies in the field.
   I also had duties--Captain Heestan (phonetic), the Group Surgeon, had delegated the counseling--all of the counseling duties to myself, not just the drug counseling duties so I was essentially the counselor for problem patients.
Q  Did you have any counseling sessions with a patient that day--any that still stand out in your mind?
A  I believe there was one that day--I believe there was one that day; yes.
Q  Can you tell us anything about that particular session?  What, if anything, stayed out in your mind?
A  The session was involving a soldier who was a known chronic heroin abuser, and he had come to me and asked if I could get him out of the service.  I explained to him that there was a boarding procedure that had to be followed.  I couldn't just sign a slip of paper and get him out of the Army.
   This had been over--we had been meeting over at least a week and probably two weeks by now.  There had been several interactions with this particular soldier.  He was irate at this particular meeting and felt that I wasn't doing what I could do to get him out of the service. I explained to him that it required psychiatric consultation.  He was afraid of the Special Forces psychiatrist.  He did not want to see the Special Forces psychiatrist.  He wanted me to sign his papers and I said that I was unable to.  I was not authorized to board him out of the service.
   We had a mild disagreement and altercation in the office and then he left the office.
Q  Was that usual or unusual to have an altercation in the office when you were counseling a
soldier or a patient?
A  It was unusual.
Q  What time did you finish work on February the 16th?
A  Probably five minutes to 4:00--4:00 o'clock.  We had developed a physical therapy pro- gram for the troops and it started at 4:00 o'clock--4:00 to 5:00.
Q  And did you participate in that?
A  Yes; I did.  I directed it.
Q  Well, tell us what happened then, just so we have a fair chronology of that evening.
A  That particular evening the schedule called for basketball so we went over to the JFK Gym and we played basketball.  It was a mixture of officers, NCO's, and enlisted personnel, and we had a basketball game for about 4 (unreadable) or 50 minutes.
Q  And that was one of the rotating series of physical activities that were planned as part of this program that you were working on?
A  That's correct.
Q  After the basketball game, what did you do?
A  I went home and picked up Kimberly.
Q  Where was she and what was she doing?
A  She was at home.  She had gotten home from school, and I think Kris went along also, but we went down to see Trooper, the pony, and Kimmie rode her very briefly because it was cold and wet out and she really didn't want to ride that night so we came back fairly quickly.
   We fed Trooper and came back.  We were probably back about a quarter to six.
Q  When you came back, was Colette still at home?
A  Yes.
Q  What happened in your home at that time?
A  We had dinner.
Q  That was the last time the four of you ate together, I assume.
A  That's right.
Q  How did dinner go?  Any special problems or any difficulty occur at dinner?
A  Dinner went fine like it always went.  We had no problems.
Q  After dinner, was that the evening that Colette went to school?
A  That's correct.
Q  Could you tell us how the dinner ended and what your wife went off to do and what you then did?
A  I think she was a little late for school because I was a little late coming back from feeding Trooper so we had dinner, and she had to rush off to school, and I believe she was picking up her friend who I did not know at that time.
Q  Was that the lady who testified here earlier--Elizabeth Krystia Ramage now?
A  I believe so.  I did not know it at that time.  I told her I would take care of the dishes, and she kissed me, and she said, "Thank you," and she left.
Q  Would that have been unusual for you to do any of the housework or the kitchen work?
A  No.
Q  Did you and Colette have some kind of agreement of how to provide for those things?
A  If she was busy, I would do the dishes.  I would not iron.
Q  Was that part of your contract with her?
A  That's right.
Q  After Colette left to go to school, how did the evening progress with you and Kristen and Kimberly in the house?
A  It was a normal evening for us.
Q  Well, since we don't know, you have to tell us some of the things that went on.
A  We played in the living room on the floor.  Kristie went to bed about 7:00--maybe 7:15, 7:30--in that range.
Q  Before you get past that, I guess different families play different kinds of games.  For this one particular night, tell us what was the play?
A  We were probably playing "horsey."
Q  Did both children get a chance to ride around on your back?
A  Yes.
Q  Kimmie still enjoyed that even at her age?
A  Yes, she did.
Q  Was there anything else that went on with you and the children after dinner and prior to Kristie going to bed?
A  I think we had read for a little while but Kristie went to bed fairly early.
Q  Was that usual in your house for you or Colette to read, or the children to read?
A  It was very usual.  We had hundreds of books that we read all the time to them.  Kimmie would read to Kris, and I would read to Kimmie, and Colette would read to Kimmie and Kris; and we both read to them.  And it was part of our normal activity.
Q  Who got Kristen ready for bed?
A  I did.
Q  Did you put her into the pajamas?
A  I probably did, because Colette was in a hurry to go to school.
Q  So that would have been usual for either you or Colette to help Kristen get into the paja- mas?
A  That's right.
Q  Did you have anything more to do with her getting into bed, just the settling down pro- cess for her for the evening?
A  Yeah, I tucked her in bed and gave her a bottle.
Q  Any problems about her going to sleep that night?
A  None.
Q  Like so many other nights--was it like so many other nights in the MacDonald house?
A  Yes, it was.
Q  At that point, what did you and Kimmie do?
A  I went to sleep on the floor.
Q  What room was that?
A  Living room.
Q  And what was the last thing you remember Kimberly was doing before you fell asleep?
A  She was playing with a game on the coffee table.  I was watching TV and fell asleep, and she was playing with some--I think it was some sort of a pastey game, using paste and doll figures, or drawing--one of the two.
   She was either drawing or using paste figures in a book on the coffee table that I had pro- bably cleared off for her.
Q  What would have been on the coffee table that you would have had to take off first, so she could play on it?
A  Books, magazines, flower pots.
Q  Where would the books and magazines have gone?
A  On the floor under the coffee table.
Q  Do you know how long you slept?
A  Not long.  Kimmie woke me up.
Q  What was the reason for waking you up?
A  We watched "Laugh In" together every week.
Q  And she knew the time of the program and it was getting near to that time?
A  She woke me up to watch "Laugh In" with her.
Q  How did you feel about being awakened to see a TV program?
A  It was fun.  We did it every week.
Q  It was something that she looked forward to?
A  Yes.
Q  How did you feel about it?
A  I looked forward to it, too.
Q  After the program was over, what did Kimmie do?
A  I put Kimmie to bed.  It was 9:00 o'clock.  I put Kimmie to bed in her bed.
Q  Did you talk to her when you put her to bed?
A  Yeah.  We probably talked.  I probably read her a couple of pages; and she was--my best recollection would be that I did not read to her a very long time, but that she went to bed quickly at that time.
Q  Now, with both children asleep, what did you do?
A  I went back to the living room and watched--I think it was a "Bob Hope Special" from 9:00 to 10:00.  It could have been the "Glen Campbell Special," or the---
Q  (Interposing) You watched a TV program anyway?
A  I watched TV, right.
Q  You have a fair recollection of that?
A  Yes.
Q  Did Colette come home shortly thereafter?
A  Yes, she did.  She came home during that next hour.
Q  When you say "during the next hour," what time period are you talking about?
A  She normally came home about 9:15, and she got home slightly later than normal.  She had milk.  She had stopped at Melony Village Shoppette.  Excuse me.
   And so she had made an unscheduled stop for milk and so she was a little late, and I re- member saying something like, "It's 20 to ten"; and she said, "Yeah, I stopped and got milk."
Q  After she had come into the house and put the milk away, what did you and Colette do? How did you spend the balance of the evening with each other?
A  On the couch, talking, watching television.  I was--it was a very normal night for us.
Q  Do you have any idea the subjects that you had touched upon in talking to your wife?
A  We may have talked about bedwetting but I don't specifically recall that.  If we did, it certainly was not important.
Q  Did you talk about school, her class?  Did Colette talk about anything that went on at school?
A  We normally did.  I do not recall at this time specific sentences, but we normally talked about her class and what she was studying at that time and that had been going on for years.
   She went to college wherever we moved to.
Q  Before you and Colette got married and you went to Princeton, how many years had she finished in college herself?
A  She had finished two years at Skidmore, and I had finished two years at Princeton when we got married in September of--following the summer of our sophomore year.
Q  Was the fact that she was going to college, getting additional courses--was that her decision?
A  Yeah; it was her decision.  It was--we both thought it was the best--you know--the right thing to do.  She wanted to graduate and she wanted to end up teaching, and she wanted to have the proper credentials.
   And we had always assumed that she would end up at least with a master's.  She was very bright and actually a very good student, and so that it was normal for us to enroll her at a college wherever we were.
Q  Were you in any way opposed to her going on with her education and getting her degree, or other studies?
A  No; I encouraged it.
Q  Was there anything else that you recall that you did or talked about; that is, after she had come home from the evening class?
A  Not specifically, no.
Q  Did you have any food or anything else?
A  We usually had a liqueur before we went to bed, some sort of a sweet after dinner-type drink; and I believe--I know now to be a fact that she had a liqueur.
Q  How large a glass are you talking about?
A  A very small liqueur glass, like less than an ounce.
Q  Do you know whether you had any liqueur at that time?
A  If she did, I probably did, and it was probably Curacao or Drambuie or something sweet like that.
Q  How much would you normally drink of such a drink?
A  One.
Q  Do you have any reason to think you had any more than one on that evening?
A  No; not at all.
Q  Did Colette finally get ready for bed?
A  Yes; she did.
Q  About what time was that?  Tell us about that?
A  She had changed into her PJ's when she came home from school.
Q  Her pink pajamas?
A  That's right; and she was on the couch in her pajamas.
Q  Did you have the television on at that time?
A  Yeah; we ended up watching part of Johnny Carson together.
Q  Did Colette finally decide that she wanted to go to sleep?
A  Yes.  She was, I guess, reasonably tired, and she also had taken her anti-nausea medicine for her pregnancy; and about 12:00 o'clock she probably went to bed.
Q  What was this medication that she was taking?
A  Bendectin; it is an anti-nausea medicine that is safe for pregnant women.
Q  Do you know how many of these Bendectins she took?
A  One or two, and you can take two at night and one in the morning and not have the nausea of pregnancy.
Q  Was that something she did fairly regularly during the months of her pregnancy?
A  Yes, every day.
Q  Was there any reason why you didn't go to bed at the same time that Colette had decided to go to bed?
A  There was no specific reason.  I wasn't particularly tired at the time, so I watched the end
of Johnny Carson and did a little reading.
Q  Now, at some point did you make ready to go to bed, however, for the evening?
A  Yes.
Q  Tell us about that, please.
A  Well, I carried out my promise to do the dishes.
Q  You mean you hadn't done it up to now?
A  Right.  So I did those somewhere between, I would guess, the end of Johnny Carson and 2:00 o'clock, and I finished reading a book that I was reading, a paperback detective novel or something like that and finished at 2:00 or 2:15, and the dishes were done at this time, and at some point between when Colette went to bed and I went to bed, Kristie had awakened and I had given her another bottle.
Q  You mean sometime between midnight and 2:15; is that what you are saying?
A  Right.
Q  And how did you know that she had awakened?  Did you hear her?  Did she call out?
A  She cried, and I went to see what was the matter and she said she wanted another bot- tle.
Q  Was Colette asleep at that point?
A  Colette was asleep.  That's right.
Q  I assume that as you went down the hall from the living room toward Kristie's room you could see the master bedroom at that point.
A  Yes.
Q  Did you go to her immediately after she started to cry or did you get the bottle first?
A  I probably went to see her right away and she probably told me she wanted another bot-tle.
Q  Was that any problem for you at that time about giving her another bottle?  Did the bottle disturb you in any way?
A  Not at all.
Q  After Kristie was given this bottle, then how did you make ready to go to bed?  What did you do?
A  Well, I was already in pajamas, and I probably brushed my teeth.  I mean I brushed my teeth since I did every night and went in to go to bed.  I was in pajamas at this time after 2:00 o'clock in the morning.  I went in to go to bed into the master bedroom.
Q  And when you went into the master bedroom, was Colette in the bed?
A  Yes, she was.
Q  Was she asleep?
A  Yes, she was.
Q  Was anybody else in bed with her?
A  Yes.
Q  Tell us about it, please.
A  Kristie was in bed with her.
Q  Where was she on the bed in reference to Colette?
A  She was on the--Kristie was on the left side of the bed--the bed's left side--the right side of the bed if you are standing at the foot of the bed.  Colette was on the left side of the bed if you were standing at the foot of the bed.
Q  Was that unusual for Kristie to be in the bed?
A  Not at all.
Q  For how long of a period had she been coming into the master bedroom and getting into bed at night?
A  Weeks if not months.  Probably months.
Q  Do you recall when the Kassabs visited you over the holidays in December of 1969?
A  Yes.
Q  Did the children have occasion to sleep with you and Colette in the master bedroom during that period of time?
A  They may have.  They certainly did when my mother was there.  They may have when the Kassabs were there also.
Q  And why would that have been necessary for the children to sleep in the master bedroom when you had visitors or guests?
A  To free up Kimberly's bed for guests.
Q  If the guests took Kimberly's bed, who moved to what bed?  Who wound up where?
A  Well, you could sort of take your pick.  Kimmie sometimes slept with Kris.  Sometimes Kris- tie came with us.  Sometimes Kimberly came with us.  We didn't think that was alarming.  We thought that was normal, and I still do think it is normal.
Q  Now, did you carry Kristen back to her bed when you found her in your own bed with your wife?
A  Yes; I put her back in bed--in her own bed with her bottle.
Q  Had she brought the bottle into the master bedroom with her?
A  Yes; she had gotten up out of her own bed with her bottle, toddled into the master bed- room, and climbed in.
Q  All right, did you get into the bed yourself at that point?
A  No.
Q  Tell us why.  Tell us what happened.
A  The side of the bed that Kristie was sleeping on had a large wet spot.  She had wet the bed.
Q  That was the blue sheet that was on the bottom of the bed there?
A  Apparently so.
Q  Was it wet to the touch at that point?
A  Yes, it was.
Q  What did you do when you realized that she had wet the bed?
A  I decided not to sleep in the wet spot.  I went and got an afghan from Kristie's bed at the foot of her bed and went out to the couch to sleep.
Q  How had you left the bedclothes on the master bed at that point?
A  I believe I pushed them towards Colette, exposing the wet spot so it would dry by morning and not--you know--get rank.
Q  Had you considered waking Colette up and changing the bedsheets and rearranging the bed so you could get in the bed together?
A  No, it never occurred to me.
Q  All right, you went back to the living room at that point with the afghan.  Did you take anything else back with you?
A  I don't think so.  I think I went back with the afghan and went to bed on the couch.
Q  How long would you say it was before you fell asleep?
A  Two or three minutes.  I was very good then at falling asleep.
Q  Dr. MacDonald, I'm going to move in a minute with you to discuss the events that took place after you went to sleep on the sofa.  Before I get into that, I want to ask you a couple of questions just about the number of occasions you've had to talk about--before we get to that, how long would you say was the time that elapsed in the struggle that you have de- scribed that was played in the tapes and in the other statements that the Government has read to us here in the course of this trial?  How long was the struggle that took place with you and the persons you saw in your house early that morning on February 17?
A  It's tough to say.  I would say less than a minute--30 seconds--45 seconds.
Q  Now, we've also heard from the material that has been played here before, the testimony given by the witnesses that you became unconscious and ultimately came to and you went and tried to treat your family.  Can you tell us about how much time was involved in those episodes--the trips to each of your members of the family's bedrooms to try and treat then and the second time around.  About how much are we talking about--what is the total time period?
A  I think that's--I have such--it's so vague and confusing in my own mind it's a hard an- swer.  I think, in piecing it together and trying to detail my movements through the house that we're probably talking about under ten minutes.  I would guess seven to ten minutes.
Q  Now, back in February of 1970, after the killings of your family, after your own injuries, you were questioned somewhat about this episode by Agent Caverly of the FBI at the hospi- tal; is that right?
A  Apparently so.
Q  Then on April the 6th of 1970 you were questioned again by the CID for a period of several
hours about the events that happened that night; is that right?
A  In a manner of speaking.
Q  Then there was the Article 32 proceeding during the latter part of 1970 where you testi- fied at length about the events of February the 17th, 1970?
A  That's correct.
Q  And, after that, in 1971, were you not interviewed again by the CID and talked to CID agents in 1971 about the events of February 17?
A  On at least two lengthy occasions.
Q  And then in 1974 you were asked to be a witness for the grand jury in this case, do you recall that?
A  That's correct.
Q  And you testified over a period of five or six days during the grand jury about the events of February 17?
A  It was at least six days of testimony.
Q  Now, besides that, have you been asked on many other occasions to talk about or de- scribe these events--talk about these circumstances?
A  Yes; I have.
Q  Including the lawyers at various times in connection with the case?
A  Many lawyers at many times.
Q  Since 1970 until today--1979--can you give us a general figure about how many times you have been asked to talk about either in great detail or just in general terms the events of February 17, 1970?
A  At least hundreds of times.
Q  When you say the events that you are actually talking about are the struggle was less than what--less than a minute--less than a half minute?
A  Thirty to 45 seconds would be my best guess for the struggle.
Q  And the attempts to treat your family and deal with your own injuries and to get help you estimate was seven to eight minutes?
A  That's my best guess.
Q  How certain are you of your memory of the exact details of each and every step that you made on that night?
A  I am not certain at all.  I have never been certain.  I have never told anyone I was cer- tain.  It is extremely vague.  There is a lot of confusing thoughts.  There is a lot of sounds, and there is a lot of sights; and the recollection is hazy at best.
Q  Have you tried over the years, since 1970--have you tried to sort out the events and make them rational to yourself?
A  Most certainly.
Q  Does that make you any more certain or less certain about the exact sequence, the pre- cise way in which everything happened and the struggle took place?
A  This has not.
Q  Dr. MacDonald, after you fell asleep, what is the very next thing that you recall seeing or hearing?
A  I heard my wife screaming.
Q  What was she saying?
A  She was just screaming at first.
Q  Just the sound of the voice?
A  That's right.
Q  Did you hear something after that?
A  Yes, I did.
Q  What was it you heard next, and whose voice was it?
A  It was Colette's voice.
Q  At this point was she saying something that you could hear and understand?
A  "Jeff, Jeff, help me.  Why are they doing this to me?"
Q  Did you hear some other voice at that time?
A  Kimberly.
Q  Tell us what Kimberly's voice was saying to you?
A  All I heard was, 'Daddy, Daddy, Daddy, Daddy, Daddy."
Q  Crying out?
A  Yes.
Q  What did you do when you heard your wife calling your name and your daughter calling for Daddy?
A  I just started to sit up.
Q  Were there any lights on in the living room at that point, Dr. MacDonald?
A  Not in the living room.
Q  Was there a light on in any of the rooms nearby?
A  There was a light on in the kitchen.  It was left on every night.
Q  Tell us about--in your own words now, go ahead.  Describe to us the events as best that you recall them that took place.  That is, you started to get up in response to the cries of Kimmie and Colette?
A  I saw some people at the foot of the couch.
Q  Could you tell, at that first instance when you saw the people, how many were there?
A  I could not.  I eventually saw three males and one female.
Q  What was your reaction?  What did you say, what did you do, when you saw people there and you heard the voices of your family?
A  I either thought or said, "What the hell is going on here?"
Q  Go on and tell us what happened?
A  I also either thought or said, "What's going on here?  What are you assholes doing in my house?"
Q  Go ahead?
A  At the same time that I was sitting up, there was a black male to the left of the three people right in front of me.  He started to swing something at me.
Q  Could you see what it was?
A  I could not.
Q  Go on and tell us in your own words what happened at that point?
A  I raised my left arm.
Q  Show us?
A  I raised my left arm, and I got hit, I believe partially on the arm and my head at the same time; then I was knocked back down on the couch.
Q  Could you feel the impact of the blow on your head?
A  I could.
Q  Do you recall what you felt when you received that blow?
A  You can't really explain it unless you've been hit in the head.  You see stars.  That's ex- actly what you see; and you can't--there is a pain and there's light--it is a light burst; and it is not clear then what happens.
Q  What is the next thing you renember doing or was happening there in that room?
A  Trying to get back up.
Q  You say you went back after that blow.  Were you fully back on the sofa at that point?
A  I think so.  I think I was flat on my back.
Q  What happened then?
A  I tried to get up again.
Q  Go on and tell us the events?
A  It is hard to take one thing and say it was next, because there were several things hap- pening at once.
Q  All right, we understand that.  Tell us in whatever sequence it seems easiest to explain. Let us share with you at this time all that you can remember of the events in that living room?
A  At some point--I think it was before I was first hit--but it may have been after I was first hit--I heard the words, "Acid is groovy, kill the pigs."
Q  Do you know who was saying those things?
A  It was a female monotone voice.
Q  What else do you recall happening?
A  After I was hit the first time and started to get up, my thought was that I better not get hit in the head again or I won't be able to get up.
   And so I attempted first to fend off the next blow, and at the same time to grab the arm of the person who was using the club, which I did do at some time in the struggle.
   I at one point had a hold of an arm on which there were E-6 stripes.
Q  By E-6 stripes, you mean military stripes indicating a Specialist rank in the Army?
A  Sergeant rank.  It is three stripes at the top and one rocker on the bottom.
Q  Go on and tell us the other things you can remember of that struggle, what happened, what you did, what you heard?
A  I think I heard--and it's still not clear--the words "Acid and rain."
Q  Does that mean anything to you?
A  It does not.
Q  "Acid and rain" or "acid rain"?
A  It does not mean anything to me, except that I think that is what I heard.  I was getting punched--what I thought were punches.  They did not appear to be very effective; and I remember sliding down the arm that I was holding on to the club.
Q  I am not sure that is clear to me.  The arm with the club--the person who had this--a sleeve which had the sergeant's stripes, is that right?
A  That is correct.
Q  Could you tell at that time, or were you able to tell at any time what kind of clothing the person was wearing who had those sergeant's stripes on?
A  I had the sense that it was an Army field jacket.  I thought and still do think that it was an Army field jacket with E-6 stripes.  The E-6 stripes were right in front of my face.
Q  And it was that arm that had the club?
A  That is correct.
Q  Tell us, if you can, what happened?  Did you get a hold of that arm, and what did you do when you had a hold of that arm?
A  He was trying to jerk his arm back, and I was trying to hold on to his arm so he couldn't swing the club again.
   He kept jerking back and he was jerking back he was pulling me forward.
Q  Toward the end of the sofa near the hallway door?
A  Toward the end of the sofa.
Q  All right, go ahead.
A  So, I kept thinking, "If I let go of his arm, he is going to be able to hit me with the club again."  At some point in this struggle, my arms were bound up in my pajama top.
Q  Now, can you describe for us in any more detail perhaps how the pajama top and your arms became entwined?
A  I had a pain in my head.  I was hit at least once in the head, possibly twice by now.  I was holding onto someone's arm.  Two other people were punching me.  I was trying to think, "What the fuck is going on here?"  I could hear Colette, and I couldn't make any sense out of what was happening.  At some point, my hands were bound up in the pajama top.  I do not know how it happened.  I have tried to figure out how it happened.  I did not hear a ripping sound.  I thought that it was either--it had to have either been pulled over my head or ripped from around my back.  I do not know which.  I have never known which, and I have never made any statements about which.
Q  As far as the logic of the situation, you have tried to figure it out, though?  Now, in hind- sight, you have tried to figure it out?
A  That is correct.
Q  But as far as having any precise memory, are you telling us you do or you don't have a memory as to how the pajama top got over your arms?
A  I do not recall how the pajama top got over my arms.
Q  Go on and tell us in your own words what else you remember about the episode and what else was going on at that time?
A  At some point during the struggle, I got what I perceived to be a sharp pain in my right chest.  My immediate thought was--as a matter of fact, my exact thought was--it is one of the few things that is clear--was that, "He throws a hell of a punch."
Q  That was a mental statement you made to yourself?
A  I don't know if I said it, but my recollection is that I thought to myself as I was holding on, at this time the club, and he was jerking me toward the end of the couch trying to get the club free.  Someone else hit me in the right side, and I said, "That was a hell of a punch."
We struggled--at this point, somehow he got free.  He pulled the club back free.  I said to myself, "I'm in deep shit."
Q  What do you mean?  What did you mean then?
A  I meant that he now had the club free.  I felt that I would probably be hit again very shortly.  I, at one point, had a hold of someone's hand in which I saw a blade.
Q  Did you feel anything else or see anything else at that time?
A  I thought to myself, "That probably wasn't a punch.  It was probably a stab."  I thought to
myself that there was a distinct possibility that I was going to be killed.
Q  Were you frightened?
A  I was not thinking fright, but I am sure I was.
Q  What else do you remember was going on at that time?
A  It was somewhere in here I saw a person that I perceived to be a girl and still think it was a girl.
Q  What did you see about that person?
A  I saw a white, floppy hat, blond hair.  She did not appear heavy.  She appeared to be 115 or 120 pounds.  She did not appear very tall, but I say that relative to the men that were in front of me.  She was shorter than the men that were in front of me.  I saw her for a period of a second or two between, I believe, the two white men that were at the end of the couch.
   The only other vision that I had of her at all was of a knee and the top of a boot.
Q  How did you get that vision?
A  I remember the floor coming up and me going down, and I saw in an instant--literally, an instant--I saw a bare knee and the top of a boot.
Q  What else do you recall of the fight--struggle--of your own activities--your own observa- tions at that time?
A  I remember receiving what I thought were multiple--what I thought to be not very effect- ual--punches to the abdomen and to the chest, some of which later turned out to be punc- ture wounds or stab wounds.
Q  Did you know at that time that that was what was happening?
A  I did not.
Q  What else did you see about the appearance of these people?  Did you get any other sight of what they were wearing?
A  The white male in the middle had something behind his neck which I took to be a hooded sweatshirt.  The male on the right-hand side, he was taller than the male in the middle and had on what appeared to be a lightweight nylon jacket waist-length style--lightweight wind- breaker-style jacket.
Q  Anything else about the third man--the one with what looked like a fatigue jacket with stripes on it?
A  None of the men had long hair.  They had haircuts consistent with military personnel.  I did not and never have called them hippies.  The black male appeared fairly heavyset and mus- cular.
Q  What was the black male wearing?
A  The black male--all I knew was a fatigue jacket with E-6 stripes.
Q  That would be the man that you said you thought had the instrument he was hitting you with--the club or stick or whatever it was?
A  That is the man who did have the club.
Q  Now, you said that you grabbed a hold of that at some point--that instrument?
A  That is correct.
Q  You also said you had a hold of a hand at some point.  Is that the same hand that had the
instrument?
A  I had a hold of hands several times during the struggle.  It is very disconnected in my mind.  I had a hold of a hand at one time in which I thought I saw a blade and at which time I said to myself, I have just been stabbed," referring back to the pain in the chest.  At ano- ther time I had my hands wrapped around another hand that I believe--that I believe were the hands of the black male holding the club.
Q  Did you feel anything on or about the hands of any of these people?
A  He appeared to have gloves on.
Q  That is the black male?
A  That is correct.
Q  Excuse me--go ahead.
A  I think.
Q  Do you have any sense of what you were feeling?  Did you have any sense of the texture or the quality of what you were touching?
A  It was a rough feel.  It was not a feel like surgeon's gloves.  It was not smooth.  It was like rubber gardening gloves with like little bumps all over them--like pimples--like work gloves or gardening gloves.  That is my sense--that is my recollection of the hand that I was holding which I believed to be around the club.
Q  Now, you say you described another hand in which you saw some kind of instrument?
A  That is right.
Q  Did you see anything in the hand of the woman with the floppy hat?
A  I never saw her hands.  I saw a light on her face.
Q  Where was that light coming from as far as you could tell?
A  It appeared to be coming from in front of her--from her hands, but I never saw her hands. There is a difference.  I saw what appeared to be a light coming up from in front of her.
Q  Can you tell us anything about the light--the kind of light?  How did it appear to you?
A  It appeared wavering or flickering.  I just remember distinctly remembering in that brief instant that it seemed like it was a light from a candle, but I did not see a candle.
Q  Do you have any other recollection at this moment--at this time--about what went on in that episode other than what you have told us?  If not, then tell us how did this episode end for you?
A  The next thing I knew, I was lying on the floor and the house was very quiet.  My next recollections--(pause)---

THE COURT: All right, we will take our morning recess and come back today at 11:50, mem- bers of the jury.  Don't talk about the case among yourselves or with others.  Remember all those things I told you and don't do them.  We will come back at 11:50.

(The proceeding was recessed at 11:30 a.m., to reconvene at 11:50 a.m., this same day.)

F U R T H E R  P R O C E E D I N G S  11:50  a.m.

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

(Whereupon, DR. JEFFREY ROBERT MACDONALD, the witness on the stand at the time of re- cess, 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  (resumed)

BY MR. SEGAL:
Q  Dr. MacDonald, right before our recess, I asked you for your last memory of the struggle on February 17, 1970, and you said you remember seeing the floor--seeing it come up to- wards you.
A  It's not an accurate recollection, but it's close.  The last thing I said was I was on the floor and the house was quiet.
Q  Now, had you or had you not been unconscious?
A  Yes; I must have been.
Q  Do you have any idea about how much time had elapsed?
A  I have no idea.
Q  What was your first thought when you were aware that you were there in the house and it was quiet--the first thing that occurred to you?
A  My teeth were chattering and I thought that I was going into shock.
Q  Tell us what you did and what you experienced at that point.
A  Then the sounds of my wife and Kim came sort of like flooding back and so I realized the house was quiet and I didn't hear Colette so I got up to go to see Colette.
Q  Were you in the living room at that point--on the floor of the living room?
A  Probably halfway in the living room and on the steps, and my best recollection was my chest was on the end of the hallway above the steps.
Q  Was that the first or second riser up?
A  Right.
Q  Was there any sound at all that you could hear at that time?
A  I heard no sounds.
Q  You decided to go see whether Colette was all right or not.  What did you do?
A  I got up and walked into our bedroom.
Q  Down the hallway?
A  That's right.
Q  What did you see when you got there?
A  Colette was on the floor.
Q  Was there any light in the room at that time?
A  I don't know.
Q  Do you know whether you turned lights on or off?
A  I have no idea.
Q  Let me show you some pictures and ask whether you recognize the scenes.  Let me show you, Dr. MacDonald, a series of photographs that have been marked previously in evidence as G-39, 40, and 41, 42, 43, 44 and ask you to look at the first picture, please, Dr. MacDonald, and tell us what the scene shows as far as you know.
A  It shows Colette on the floor.
Q  Is that where she was when you first saw her?
A  No.
Q  All right, we'll come back to that.  Would you look at the next picture, please, and tell us whether you recognize that photo?
A  That's Colette on the floor.
A  Is that how you saw her?  I don't mean the position now but is that the way she appeared to you the first time you saw her?
A  All I remember is a lot of blood.  I don't remember her arm positions.  She was leaning against the green chair, and she is not in these pictures.
Q  All right, would you look at the next picture, please, and tell us whether you recall that scene at any time?
A  Yes.
Q  Is that another picture of Colette also on the floor?
A  Yes.
Q  Now, in this picture that's marked G-41, is that the green chair you are talking about here?
A  Yes, it is.
Q  The picture doesn't show how you saw her at first, though; is that right?
A  No, it does not.
Q  Can you tell us perhaps a little bit about how her position was when you--to the best you can recall--when you first saw her there?
A  Her right shoulder was up against the green chair.  She was leaning more on her left side.
Q  Now, did you come close to Colette at that point?
A  Yes, I did.
Q  Did you see anything about her injuries at that time, Dr. MacDonald?
A  All I could see was a lot of blood.
Q  Let me show you G-44 and ask if this perhaps depicts how your wife appeared to you at that time?
A  That's how she appeared.
Q  Look at G-43, please, if you will, and tell us if that also reflects the blood as you saw it at that time?  Please look at it.
A  She looked bloodier than that to me.
Q  What did you do when you saw your wife there?
A  I took the pajama top off my wrists and I took a knife out of her chest.
Q  Would you show us, please, on your own body--just point if you would--where this knife was?
A  It was somewhere in the central chest.  I don't specifically remember.  Roughly in the mid- dle of the sternum.
Q  What did you do with the knife?
A  Threw it away.
Q  When you say you "threw it away," you mean in the room some place?
A  I really don't recall.  I just remember taking it out and throwing it.
Q  Were you down on your hands and knees at that time?
A  Either right then or immediately thereafter.
Q  All right, you described coming into the room and finding your wife and taking out the knife.  Tell us whatever else you recall doing at that time in the bedroom.
A  I gave her mouth-to-mouth resuscitation but the air was coming out of her chest.
Q  You mean out of the stab wounds in her chest?
A  That's right.
Q  Please go on and tell us what you did then.
A  I checked her pulse.
Q  Were you trying to see whether there were any signs of life left in her?
A  That's right.
Q  Did you detect any sign of life in your wife's body?
A  I did not.
Q  Go on and tell us what happened then.
A  I remembered I heard Kimmie so I went to see Kimmie.
Q  Where was your pajama top at that time?
A  I have no idea.
Q  You walked out of the bedroom into the other bedroom in the house where you heard Kim- berly.  What did you see there?
A  Kimmie.
Q  Was the light on or off in her room?
A  I don't recall but I think it was off.  I couldn't see her well but I could see her.
Q  Was she in her bed?
A  She was in her bed.
Q  Did you move toward her bed?
A  I went to the right side of her bed.
Q  What did you see?
A  She had a lot of blood on her.
Q  I would like you to look at three other photographs, Dr. MacDonald.  These have been marked Government Exhibits 56, 57, and 58 in this case.  Would you look at Government 56, please.  Do you recognize the scene there?
A  That is Kimmie, but that is not how I remember seeing her.
Q  Would you look at Government 57, Dr. MacDonald, perhaps, does that reflect any of the things you saw at that time?
A  Yes.
Q  Would you say she was bloody?
A  She was covered with blood.
Q  I ask you to look at Government 58, please.  I must ask you to look and tell us whether that looks like the way you saw your daughter?
A  Yes.
Q  Do you remember anything else that you did in Kimberly's room going in there and observ- ing her condition?  Did you try any life-saving--were you able to try any life-saving proce- dures with her?
A  At some point, I gave her mouth-to-mouth.  I don't know if it was now or later.  I also checked her for pulses.
Q  I am sorry?
A  I also checked Kim for pulses.
Q  And you say you are not sure whether it was at that time or some later time that you tried to give her mouth-to-mouth resuscitation; is that right?
A  That is correct.
Q  Well, whatever time it was, what was the effect?  What did you learn?  What did you find out?
A  The air was coming out of her upper chest.
Q  Was there any sign of life at all when you checked her pulse?
A  No.
Q  What did you do at that point?
A  I went to see Kristie.
Q  You went out and across the hall?
A  That is right.
Q  Did you go into her bedroom at that point?
A  Yes.
Q  Do you remember whether the light was off or on in that room?
A  I do not recall.
Q  What could you first see when you went into Kristen's room?
A  I could see her lying in bed.
Q  Could you see whether any blood was on her at that time?
A  When I got closer.
Q  How close did you come to Kristen?
A  I gave her mouth-to-mouth.
Q  Let me show you again some photographs marked Governments 59, 61, and 70.  I ask you, please, to take a look at G-59 and tell us whether that looks like the scene as you first saw it when you entered her room?
A  It is close.
Q  What, if anything, do you think is different in this photograph than what you first saw be- sides the fact that there is light on here?
A  I remember her an being more on her back.
Q  More on her back.  Please look at G-61.  Is that the way you first saw her?
A  No.
Q  Again, was she more on her back?
A  I remember her as being more on her back.
Q  Finally, look at G-70, and if you would, examine this.  Do you recall seeing the bottle in the
position--the baby bottle--as shown in the position in this photograph?
A  No.  I do not remember seeing the baby bottle.
Q  Do you remember giving her the bottle, though?
A  I gave her the bottle.
Q  When you last had seen her alive, what position was she lying in?
A  On her back but towards the wall, I believe, facing towards the wall.  Her bottle was sort of on the right side of the bed.  She was facing the wall when I left her last.
Q  But when you walked in this time, she was not in the position as shown in the photo- graphs, though?  She was not in that position when you walked in?
A  She was not in that position.
Q  What, if anything else, did you do in her room--Kristen's room?
A  At that time?
Q  Yes, please.
A  I believe I checked her pulses.
Q  I assume you found nothing there at that time either?
A  I found no pulses.
Q  Tell us where you went and what you did after that?
A  It is not really clear what I did next.  My best recollection, at some point, I was standing in the hallway and I went into the bathroom, but I also went to Colette again, and I don't know which came first.  After I went to Colette the second time, I believe, I picked up the phone in the master bedroom and called for help.
Q  Before you tell us this, can you describe what went on when you went to see your wife, Colette, the second time?
A  I don't know if I gave her mouth-to-mouth again.  I was down next to her, and I believe I, at some point, covered her with my pajama top and something else, and I don't remember what the something else was.
Q  Do you know where it came from--this other item that you covered her?
A  Probably from the green chair.  I recall reaching across her and pulling something off the green chair towards her.  I do not know what it was.
Q  Could you tell us why you were covering her at that time?
A  I didn't--I didn't---
Q  (Interposing) Well, let me---
A  (Interposing) I didn't know what else to do.  I don't know.
Q  You, in fact, in reality, I suppose if that word applies, knew she was dead then?
A  Probably.
Q  Did you have any other idea of what you could do for her?
A  Start an IV.
Q  None around?
A  I had some medical supplies.  I don't know if I looked for them or not.
Q  But you had found no signs of life in her, had you?
A  No signs of life.
Q  What happened when you went to the bathroom?  Do you know why you went there--how you came to be there?
A  I went there mainly to check my head.
Q  Were you becoming aware of your head at some point--aware of some feelings in it?
A  My head was hurting all through this, and I knew that I wasn't thinking very clearly, and I couldn't figure out what had happened.
   And I looked in the mirror in the bathroom to see if there was any massive or major appear- ing head wound to account for that pain in my head and the inability to think.
Q  Is it fair to say--what was your mental state?  What word or adjective would you apply to yourself?
A  Confused.
Q  Now, when you looked in the mirror, do you recall what you saw about yourself at that time?
A  I saw a bruise on my forehead.  There was some blood on my forehead, and there was blood around my mouth.  That is all I remember.
Q  Do you recall looking at your torso and your chest or any part of your body above your waist?
A  I looked at my chest at some time.  I don't remember if it was in the bathroom or in the hallway or in the master bedroom; and I saw that I had what appeared to be a small wound in the right chest that was bubbling.  I don't know where I was when I did that.
Q  Did you do anything else in the bathroom that you now recall?
A  I think I rinsed my hands off.
Q  Do you know why you did that?
A  I have no idea.
Q  As a doctor were you in the habit of washing your hands?
A  Yeah.
Q  Did anything else take place that you can now recall while you were in the bathroom?
A  No.
Q  What is the next thing that you recall doing, Dr. MacDonald?
A  Talking on the telephone.
Q  Now, there were more than one phone in your house at that time, were there not?
A  That's right.
Q  Which phone do you recall going to at that time?
A  The phone in the master bedroom.
Q  Tell us about what you did when you went in there and about the phone conversation that you had?
A  I picked up the phone and I dialed "0" and the operator came on; and I told her I was Cap- tain MacDonald at 544 Castle Drive and that we needed help.  I said there had been some stabbings, people were dying, and we needed medics and MPs.
Q  What did she say, if anything?
A  She said, "Is this on-Post or off-Post?"
Q  You mean, whether this was actually Fort Bragg or the City of Fayetteville?
A  That's what I took her to have meant.
Q  Tell us about whatever else you said to the operator and whatever the operator said and did in response to your call?
A  I couldn't figure out why she would ask me that, and I thought that I said to her, "What do you mean, 'is this on-Post or off-Post?'"  I don't know if she repeated it or not, and I dropped the phone.
Q  Do you recall what was going through your mind at that time when you let the phone go and let it fall?
A  Yeah; I recall what was going through my mind.
Q  Please tell us.
A  I thought she was an asshole.
Q  Why?
A  It seemed like a stupid question.  I had given her my address, I told her we needed medics and MPs, and she wants to know if it's on-Post or off-Post; and I couldn't figure out the re- levance.  Now it's easy to figure out the relevance.
Q  Why did you not hang the phone up?
A  I didn't even think about it.
Q  Where did you go and what did you do after that?
A  I was standing in the master bedroom at some point.  To be honest it was before or after the phone call, but I think in my best recollection it was after the phone call.
   That's my best recollection and I saw that the back door was open.
Q  Was that the utility room facing the rear of the house?
A  That's correct.  The swinging door between the master bedroom and the utility room was partly open, and I could see that the back door was open, and I went to that door.
Q  What did you see at that back door?
A  I only have a recollection that it was wet outside.  I didn't see anything more than grass-- winter-brown grass--and that it was wet.
   I didn't see anybody or anything.
Q  Was it still dark outside at that time?
A  It was dark.
Q  Any noise, any sound of any sort?
A  No sounds.
Q  Do you have any idea today why you went to the back door, what you were doing there?
A  I think it was confusion.  I didn't know whether to go to the Pendlyshoks--were there still intruders.  The Pendlyshoks were catty-cornered to our back door about---
Q  (Interposing) Neighbors of yours?
A  Neighbors, about 60 feet away.  He was in the Green Berets also.  He was a lieutenant in my unit.  And I don't specifically recall thinking, "I am going to go see Chuck Pendlyshok for help," but I think that was probably part of the decision to go to the back door, as well as to see if there were still assailants there.
   I didn't see anything.
Q  Then what happened; what did you do?
A  I think I went back to see Colette, and very quickly went to see Kim and Kris again.
Q  When you say "quickly," you mean you ran from room to room?
A  I feel like I was moving quickly, yes.  I think that I was trying to get a sense of what I was seeing.
Q  After you went back from that door to the master bedroom, do you know which one of the children you went to first?
A  I believe Kimmie.
Q  Did you do anything in Kimmie's room?
A  I don't recall on which time.  I did something each time that I can't recall, if you follow that.  In other words, I checked for pulses and I did mouth-to-mouth and I did some of those things twice.
   I'm not sure if on the second trip I did both.
Q  Nothing had changed about her condition; in other words, she was still without any signs of life, wasn't she?
A  That's right.
Q  Then did you go to Kristen's room?
A  Yes.
Q  What did you do there, if you recall, this next trip?
A  I only recall doing one thing.
Q  What was that?
A  I patted her on the head and said she'd be okay.
Q  I'm sorry; I heard you say that you patted her on the head but did not hear the words.

THE COURT: He said she'd be okay.
 
BY MR. SEGAL:
Q  What is the next thing you recall doing?
A  Being on the phone in the kitchen.
Q  This is the second of the house phones, at the other end of the house?
A  That's right.
Q  Do you have a specific recollection as to how you got there?  Do you remember walking down the hall?
A  No.  I remember being in the kitchen talking on the phone, and I remember the first voice was a female voice.
Q  Do you recall whether you dialed the phone at all?
A  I did not dial the phone.  I picked up the phone and the female voice said, "Is this Captain MacDonald?"
   I said, "Yes," and I said, "People have been stabbed.  They're dying.  Will you help?"-- something like that; and she said, "Just a minute; I'll connect you."
   And I heard a series of clicking tones and a sergeant came on the phone.  And he said, "This is sergeant so-and-so," I don't remember the name.  He said, "Is this Captain MacDon- ald?"  I said, "Yes, it is."
   And he said, "What happened?" and then I said, "There are people dying."  He said, "What happened?" and I said, "I don't know."
   Then I heard him shout, "Make Womack ASAP".  He shouted to someone else, "Make Wo- mack ASAP."
Q  And then did you listen any more or talk any more?
A  No.
Q  Do you have any recollection about how you ended that phone conversation?
A  I just recall thinking that,"He's getting help"; and my next clear recollection is fighting with an MP.
Q  If I understand you correctly, you remember thinking that he was going to get help from the Womack Army Hospital?
A  That's correct.
Q  Then the next thing you recall is fighting with the MP.  Where were you at the time that episode took place?
A  I was lying next to Colette.
Q  Do you have any recollection at all of how you got there or why you went there?
A  I don't remember walking down the hall.  I just remember sort of ending the phone conver- sation thinking that help was on the way, and I was going to go help Colette.
Q  Do you know how much time elapsed before this MP appeared?
A  I do not.  It seemed--I don't really have a recollection of time and so that makes it seem brief.
Q  Tell us about--what is the first conscious sense--conscious experience--you have with that MP?
A  Someone was breathing into my mouth.
Q  Did you open your eyes?
A  Yeah.
Q  Did you look into his face and another man's?
A  He was trying to hold me down and I was trying to get up and he was trying to breathe into my mouth, and there were a lot of people there.
Q  There were other people in the room too?
A  My first recollection is that I looked up at a series of MP helmets--helmets with a white bar around them, and it seemed like there were a lot of people there, and he was breathing into my mouth.
Q  What did you do then?  When you saw those things, what was your reaction?
A  I tried to push them away.
Q  Why did you do that?
A  I was breathing and I didn't see why he was breathing into my mouth.
Q  Did you try to sit up at that time?
A  I tried to get up.
Q  Tell us the event that took place with this MP.  By the way, do you now know who that man is?
A  Kenneth Mica.
Q  He was, I guess, probably the second witness here at the trial.
A  That's correct.
Q  All right, you opened your eyes and Mica was there.  Go on and tell us in your own words what was taking place in the bedroom.
A  There was a series of things that were occurring simultaneously.  I was lying next to Colette.  He was trying to breathe into my mouth.  I was trying to push him away from me, and he was trying to push me back down on the floor, but by doing so he was pushing me on Colette.
Q  How could you feel her body?
A  I was lying against her, and I remember saying, "Jesus, look at Colette."  And he said, "She's okay."  Then I said, "Check my kids."  He said, "They're okay."  And I said, "There's blood everywhere."  He said, "I know."  And people were pushing and shoving and shouting and screaming and trying to drag me away from Colette and trying to push me back down on Colette and people were shouting "Don't touch that" and "Put that down" and "Tell Womack to get their ass here" and "Where the fuck is Womack?"
   Someone fell into Mica and Mica fell on me and I fell back on Colette, and I pushed Mica off me again, and we were having this crazy struggle.  He was trying to breathe into my mouth all the time, and I was trying to push him off me, and he kept saying, "You'll be okay," and I said, "I don't need any help."  I said, "My wife needs help."  That's what I remember.
Q  Did things settle down for a little while there in the bedroom with the MPs?  Did it get quieter?
A  Mica was shouting at me, "What happened?"  And I told him something like, "There were a bunch of people here."  I said, "There were people here who were stabbing us and beating us."
Q  Did he ask you questions?
A  Yes, he did.  He said, "Describe them."  I said, "There was a girl and three guys."  He said, "What did they look like?"  I said, "There was a black male and two white males, and there was a girl with a floppy hat."  He said, "What else?"  I said, "I could see a light on her face" or something like that.  I'm paraphrasing.
Q  All right.
A  And he shouted over his shoulder, "Check the girl" or something.  He was screaming and everyone was yelling and running and pushing and then medics were trying to push me on a stretcher at the same time that he's asking for more descriptions, and the medics are jam-ming me down on the stretcher.
Q  Do you remember being lifted up on the stretcher?
A  Yeah.
Q  Go ahead and tell the scene that you recall.
A  My best recollection is someone was pulling me by my feet away from Colette.  At the same time Mica was still trying to hold my shoulders down on the floor so he was holding me in position and someone else was picking my feet up and trying to pull away, and someone said, "Put a pillow under his feet," and I said, "What are you put"--you know--nothing made any sense.  I said, "What are you putting a pillow under my feet for?"  And--you know--no one said anything.  I mean everyone was shouting and screaming, "What did they look like? Who did it?"  Someone said, "Are you a captain?"  I said, "I'm a doctor," and they said, "But are you a captain," and I said, "Yes, I'm a captain but I'm a doctor."
   And I said--you know--we were talking about my wife and kids.  I said, "How are they?" And they said, "They're okay."  I said, "Shit, she doesn't look okay to me."
Q  What else of that episode--those events--do you recall?
A  Four or five people were picking me up, putting me on the stretcher.  Then the next clear thing thing I--that's clear is that I was off the stretcher halfway into the door to Kimmie's room.
Q  The stretcher was out in the hallway?
A  The stretcher was in the hallway.  My feet were towards the living room.  My hand was on the little stereo that we gave to Kimmie in Kimmie's--you know--in the bedroom inside the door---
Q  (Interposing) Did you reach inside the door?
A  I reached inside the door.  My hand was either on the doorjamb or on the stereo, and I pulled myself off the stretcher and they were jerking me back on the stretcher.
Q  Do you recall what was being said at that time--what you said--what they told you?
A  They were trying to get me back on the stretcher and saying, "We'll get you to Womack and we'll get them to Womack."
Q  Do you have any idea now why you were trying to get off the stretcher at that juncture?
A  Not really.  I guess to try to help Kimmie.
Q  Do you recall them taking you down the hallway and out of the house?
A  Not really.  I remember getting in the ambulance.
Q  And in the ambulance do you remember going to the hospital?
A  Just that we were moving.  I just remember being in the back of an ambulance.
Q  Dr. MacDonald, let me go back a bit from this series of events we are talking about.  You say that Officer Mica was asking you questions about the descriptions of these people?
A  Yes, sir.
Q  You gave him some of the information that you described here this morning?
A  That's right.
Q  I would now like you to take a look--well, let me ask you this: have you tried since that time on any number of occasions to try and get the details together in your mind of the ap- pearance of the people that you saw in your living room in the early morning hours of Febru- ary 17, 1970?
A  Yes.
Q  Did you have occasion to work with an artist to try and develop the appearances of the persons that you saw?
A  Yes, I did.
Q  Were you satisfied with the results of the work that they represent as good as you can describe the appearances of the persons that you saw in that house under the circumstan- ces that you saw them?
A  Under the circumstances that I saw them; yes.

MR. BLACKBURN: Your Honor, at this time, may we approach the Bench?

THE COURT: Yes.

B E N C H  C O N F E R E N C E

MR. BLACKBURN: We have reached that stage apparently, Your Honor, where the Defense is going to show the most recent four drawings that were done by the police artist.  We would OBJECT on the basis that it has not been properly authenticated as to how those drawings took place.  We have never been given the name or talked to anyone.  We think the proper foundation has not been laid at this time.

MR. SEGAL: I don't know of anything--any proper foundation that says I have to tell the Government anything, but I do say that I will ask him whether these represent the results of his descriptions.  I will develop some more how he did it, but he is the person who was there.
I mean, this is exactly the way thousands of photographs in this case came into evidence. They just simply said, "I was there."  He took it and it looks like what they took.

MR. BLACKBURN: Your Honor, if I could say one more thing.  One of the problems presenting itself--this is not the first set of drawings.

MR. SEGAL: I will come to those.

MR. BLACKBURN: Let me finish, Bernie.  There are some other drawings.  They are different.  I
think that gives rise to some question beyond this own Defendant's word as to why that was necessary and why they came to be different, particularly, since this last group occurred so much later.

THE COURT: Will you not have an opportunity to explore that on Cross-Examination?

MR. BLACKBURN: Yes.

THE COURT: Well, if he undertakes to introduce evidence that doesn't have any probative force, then, of course, I cannot conceive of it being prejudicial.  On the other hand, if you are able to show that he has drawings by somebody else at some other earlier time and were different from these, it seems like to me it would detract a whole lot from the probative force of the ones now sought to be.  I don't exactly see the basis of your OBJECTION.  You seem to be anticipating what you want to bring out on Cross-Examination and make him supply those deficiencies which you hope eventually to establish at this time.

MR. MURTAGH: Your Honor, we would not have done this if we had not been denied by the Defense an opportunity to interview the artist.  You know, they have repeatedly refused to make that man's identity known to us.

THE COURT: Didn't I order them to do so, and didn't they say they would?  I can't recall everything.  I am just asking.

MR. MURTAGH: I believe that the Court indicated--I ean't remember exactly, but I think that was the drift of it--but at any rate, we don't know who drew these.  We don't know who drew this second set.

THE COURT: Well, tell him.  It has got to come out at least by Cross-Examination.  I guess this witness will know what his name is.

MR. SEGAL: Certainly, Your Honor.

THE COURT: Who was it?

MR. SEGAL: We will give the name.  I will ask him right now, Your Honor.  I don't think the Government has given the Defendant anything in this case except an exceedingly limited view of what all the facts are.  I don't think--unless Your Honor feels as a matter of law there in some requirement--I wouldn't give the Government anything except in the order that I intend to develop it.

THE COURT: Let me just say that the thoughts you just expressed, it just seems to me just sitting here with no interest in the thing, applies to both sides.  Both of you have played it just as close to the chest as you can.

MR. SEGAL: I know that is the view that may appear at this juncture in the case.  I will tell you it is not where we started in 1975.  Our history did not begin on the 28th or 29th day of trial, Judge.

THE COURT: Well, I am going to let you ask the question.  You go on.

(Bench Conference terminated.)

BY MR. SEGAL:
Q  Dr. MacDonald, I am going to show you a series of exhibits which have been previously numbered as Defendant Exhibit 89, 90, 91, and 92, and ask, first of all, for you to look at them without showing them to the jury yet.  Tell me whether you have ever seen those before?
A  Yes; I have seen these before.
Q  Now, is this the work of an artist based upon information that you gave and descriptions that you gave the artist?
A  That is correct.
Q  And as you gave the artist this description, do you know what he did?
A  He would draw a figure and he would then re-show it to me and I would correct.
Q  You have said "figure."  I suppose that it implies a whole body?  Are you talking about figure or face?
A  Face.
Q  Then, as you looked at it again, did you make any comments upon the way he had done it?
A  Yes.  I would say that the eyebrows looked, you know, too high.  They were lower.  He would move them down, and I would say, "That looks better."  Then, we would go to the nose and the cheekbones and the upper lip and the lower lip and the chin and the cleft in the chin, and we would do every specific thing piece by piece until we had developed a reason-able rendition of the people that were in my house that night.
Q  Now, when this process was done, did this represent as best you could recall and the best he could capture the words that you were able to give him in describing the people you saw in your house?
A  That is correct.
Q  I ask you to look first of all at D-91.  Which one of the attackers does this picture de- scribe and show?
A  This was the black male who was to my left at the foot of the couch and had the club.
Q  And is the man who was wearing the jacket with the E-6 stripes on it?
A  That is correct.
Q  I ask you to look at D-90, and ask you which of the men attackers this picture repre- sents?
A  This is the white male to the right side--of the two white males, he was the taller.  He was to the right side--my right at the foot of the couch.
Q  I notice on the neck of this man, there is some ornament of some sort.  Do you see it?
A  Yes, a cross.
Q  Do you recall seeing that on the neck of your attacker?
A  Yes, I do.
Q  I show you D-92, and ask which of the men involved in the attack upon yourself does this picture show?
A  He is the man in the middle who was the shorter of the two white males.  He was also shorter than the black male.
Q  What kind of clothing is shown here in this particular drawing?
A  A hooded sweatshirt which is my impression of what he had on that night.
Q  Do you recall which of the three men who are depicted here had weapons?
A  The black male had a club and at least one of the two white males had a knife that I saw, but I do not really know which one it was.
Q  Now, I show you D-89, and ask you, Dr. MacDonald, please, does this resemble the woman that you saw?
A  Yes, it does.
Q  The hat more or less, the shape of the hat that you saw?
A  That is the hat as I recollect it.
Q  What about the hair as to the color and the length as it appears here?
A  It appears the way that I remember seeing her.
Q  Does the face generally seem to accurately represent the shape of the face?
A  Yes.  This is the person I saw least, but this is my recollection with the artist with hours of re-drawing.  This is my best recollection.

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

THE COURT: Very well.  I thought you already had.

MR. SEGAL: I am not sure that all four of them had, Your Honor.

THE COURT: I mean you were showing them to the jury as you were asking the witness.

MR. SEGAL: Yes, Your Honor.

THE COURT: But if you want them to see them in their hands, that will be all right.

MR. SEGAL: Not necessarily.  They will have it available later.  That is all right.

BY MR. SEGAL:
Q  All right, you described the persons you saw in your home.  You told us about the MPs coming in your house and going to the hospital, and you remember the vehicle moving.  Tell us your recollections upon arriving at Womack Army Hospital?  About what happened to you-- what was done--and how you felt?
A  My recollections from the hospital are not very clear.  I clearly remember a nurse asking me my social security number.  I clearly remember talking to Dr. Severt Jacobson.  He at- tended me for I thought it was three or four--he said seven or eight minutes.  I recall getting an x-ray.  I recall a lot of people bustling around and hustling around and a lot of noise and seemingly confusion.  I remember crying a lot.  I remember asking for my wife and kids.
Q  Who were you asking when you asked about your wife and children?
A  Whoever all those people were that were around--nurses, there were orderlies, there were people taking my clothes off, starting IV's, drawing blood, taking x-rays, then wheeling me to X-ray for another x-ray, then a portable x-ray, and eventually a doctor putting in a chest tube.
Q  Well, do you remember Dr. Jacobson being the first doctor that came in contact with you?
A  Yes.
Q  Do you remember the next doctor that treated you or dealt with you on that morning?
A  I don't really recall that Dr. Bronstein was next.  I now know he was next, so there is a difference there.
   My next recollection was of Dr. Gemma.
Q  Dr. Frank Gemma?
A  That is correct.
Q  Tell us what you recall about what Dr. Gemma did and said and what you did and said when he was there?
A  He came in and examined me briefly and said that, "You need a chest tube," and I said something like, "I thought so."
Q  How were you feeling at that time, physically?
A  I felt like my chest hurt.  It seemed a little hard to breathe, not as bad as it had seemed earlier, quite honestly.
   My head hurt a lot.  I seemed--I felt confused and I just remember crying a lot.
Q  After Dr. Gemma said he thought you needed a chest tube, did he do anything further?
Did he start the procedure at that time?
A  I don't recall any specific sequence.  He eventually put a chest tube in.
Q  What is the next contact you had with the doctor that you can recall?
A  This is when I recall Dr. Bronstein.
Q  What was he doing; was he treating you at that time?
A  Not really; he was consoling me more than treating me.  He was with me.  He spent some time with me that day.  As I recall it, it seemed like hours.
Q  And when he was with you, you were crying still?
A  As I remember it.
Q  What was the next event of any significance in the hospital that you can recall?
A  Being confused, getting some medication, having a hard time talking, and then Mr. Caverly questioning me.
Q  Now, did you know at the time what medication you were receiving or do you now know, having been given your medical records what medications were given to you in the hospital before Mr. Caverly came?
A  I now know; I did not know then, and I know I was getting medicine--I thought--for pain.
Q  What is the medication you actually received at that time?
A  I had received 200 milligrams of Nembutal intravenously, and several--two or three doses of Demerol intravenously.  I don't recall the specific dose; it was 50 or 75 or 100 milligrams each dose.
   I think I had 100 milligrams of Vistaril intravenously also at the same--somewhere in this time frame, in the early morning hours.
Q  Do you know how long after you received the various drugs you received that Mr. Caverly showed up?
A  I know from the medical records.  I did not recall it from my recollection.  From the medical
records he interviewed me several minutes after I had received a dose of Demerol some time later in the day.
Q  Now, you say you had occasion at my instance to look at vour own medical records in this
case?
A  That's right.
Q  Now, would you just tell us, please, what the records indicated when any investigators came to talk to you--what time it was--that the records say?
A  1:30 to 2:15.
Q  Do you have any reason to disagree with that statement that's contained in the records there?
A  No.
Q  Do you remember Mr. Caverly tell us repeatedly that he remembers coming at 2:25 p.m.?
A  The record indicates that he is mistaken.
Q  Well, let me ask you this: what is the next thing--well, tell us about the interview with Agent Caverly.  How long did that last as far as you can recall?
A  My recollection of the interview is that it was very brief, and I was surprised in the medical records that there appeared to be 45 minutes.
Q  Did it seem like that to you?
A  It seemed much shorter to me.  I remember him asking me some questions, and I remember a white head and a booming voice, and I remember sort of being forced into some answers, and he left the room; and I thought it was very quick.
Q  What do you mean when you say you were, "forced into some answers"?  Did he mistreat you in some way?
A  No, no.  He would say, "Who did you see?" and I said, "I think I saw four people."  And he said, "So you saw four people?"
   I said, "Right"; and then we got into descriptions of what they were wearing.
Q  Let's discuss that.  Do you recall any part of that, how the interview went?  How about the clothing.  Did he ask you anything specific about the clothing that any of these persons were wearing?
A  The only specific recollection I have was that I was annoyed, because we were talking about the man in the middle and I said he had something behind his neck.
   And he said, "Like what?" and I said, "Like a hood on a jersey," and he said, "You mean like a red football jersey?"  And I said, "Yeah."
Q  Where did the color red come from?
A  Mr. Caverly supplied the color red; and I remember thinking to myself, "I didn't say red jer- sey, but that's what he means, like a red football jersey--a warm-up jersey."  And I said, "Yeah," and his written report now says that I stated that the man had a red jersey.
Q  Do you have a recollection of seeing any of the three men wearing a red jersey?
A  I did not say that.
Q  Do you have a recollection of seeing any of the men wearing a red jersey?
A  I do not.
Q  Do you recall one of these men wearing a jersey?
A  I do.
Q  Is that the one that you called a hooded sweatshirt that you saw before?
A  The shorter white male in the middle.
Q  Do you recall any of the other aspects of that first interview with Agent Caverly?
A  I just remember him leaving the room one time because I was upset.
Q  When you say "upset," you mean you were crying about your family?
A  Yes.
Q  Do you remember Agent Caverly's subsequent visit to you on the following day?
A  Vaguely.
Q  How were you feeling on the second day when he visited you?
A  Depressed.
Q  How was your head feeling at that time?
A  It hurt.
Q  How long did you go on feeling discomfort or pain in your head?
A  Weeks.  At least weeks.
Q  How about the third interview, the last time with Agent Caverly?
A  The two interviews with Mr. Caverly--the second and third interviews were very brief in- terviews.  He did not go over the sequence of events.  He said did I have anything to add to my prior sequence of events, and I shrugged my shoulders and I said, "Well, I--basically no." The question was, "Do you have stuff to add from yesterday?" and I didn't remember what I said yesterday, and I said, "No."
Q  How long were you in the hospital, Dr. MacDonald?
A  Until the 26th.
Q  February?
A  That's right.
Q  Now, the funeral for vour family took place when?
A  Saturday.
Q  You were still a patient at the hospital on the day of the funeral?
A  That's right.
Q  Who had handled the arrangements for the funeral?
A  Mr. Kassab.
Q  And why was he handling the arrangements?
A  Because I was in the hospital.  We had talked about it and he said, "I'll take care of every-
thing," and I said something to the effect that I would appreciate it.  My mother was not up to it.  I didn't think Mildred would be up to it, and Freddie offered.
Q  When you were finally released from the hospital--how many days altogether did you spend at Womack Army Hospital?
A  Whatever the 17th is to the 26th.  Eight or nine days.
Q  Just briefly, what was the first thing you did when you were released from the hospital? Where did you go?  Who did you go with?
A  My mother took me over to check out my new Bachelor's Officer's Quarters.
Q  Why did you not return to your home at that time?
A  Well, number one, I wouldn't have returned to the home.
Q  Why not?
A  I wouldn't want to return to that scene.  I wouldn't want to live in the house again.  And, number two, it was apparently still being processed.
Q  The CID was still investigating there they said?
A  That's right.
Q  Did they tell you that?
A  They did tell me that.
Q  So you went and got new quarters and then what did you do with your mother?
A  Ron Harrison came over and loaned me a pistol.
Q  Lieutenant Harrison, the Special Forces officer?
A  That's right.
Q  Do you know why he loaned you a pistol?
A  He felt it was better that I had one.
Q  Did you discuss whether you needed one and for what purpose you needed one?
A  I really didn't care.  He sort of forced it on me.  I was not--my mood was such that I real- ly didn't care about anything.  He kept saying, "I think you ought to have this for your own protection."  It was a nine millimeter, automatic pistol, and I kept it under my pillow for a while.
Q  About how long?
A  Until about two weeks after I was arrested and had an armed guard.  I felt a little silly with an armed guard and a pistol in the room so I quietly gave it back to Lieutenant Harrison.
Q  What else did you do besides see Lieutenant Harrison?  Did you do something to deal with your mood and your feelings?
A  Well, pretty early an I decided that I should go back to work as soon as possible.
Q  Did you consider at that time asking the Army for an extended leave, say, 30 days?
A  Yeah.  My mom and I probably discussed it.  We did discuss it, and I just felt that it would probably be the worst thing for me.
Q  Well, can you tell us how you arrived at the conclusion?  Why did you feel this way that it was not advisable for you to take some leave and get away from Fort Bragg and do some- thing else?
A  Well, I just felt like I had to--you know--to busy myself to keep my mind off the events of the night, and I felt that if I had a 30-day leave, I would have nothing but time to sit and think about it, and I did not want to think about it.  I wanted not to think about it, and I felt one way to do that was to get back into work as soon as possible.
Q  How long after your release from the hospital did you return to your unit?
A  I don't clearly remember.  It was a week or ten days.  My mom and I went down to the seashore for several days and then we came back and I went back to work.
Q  What was your emotional state while you were on this trip with your mother?
A  Depressed.  I would say some anxiety but a lot of depression, and I was very down.  I had just lost my family and couldn't forget.
Q  Did you cry?
A  A lot.
Q  How did you sleep during that period of time?
A  I didn't sleep.
Q  Did you have dreams?
A  Yes.
Q  What did you dream about?
A  Waking up to the screams of my family.
Q  In your dreams what did you hear?
A  The same thing.
Q  Well, I need to know what you mean by "the same thing."
A  I would wake up, just as I had been awakened that night by Colette and Kim.
Q  Did you do anything to try and sleep better, to get past the depression while you were on that vacation trip?
A  Tried some sleeping pills.
Q  Did they help you in any way?
A  No.
Q  So you came back to Fort Bragg and you went back to your unit; is that right?
A  That's right.
Q  Did you start the same job again with the Sixth Special Forces?
A  Yes, I did, but very soon thereafter--I don't have a good time frame--but very soon thereafter I became the Group Surgeon so I was now the doctor in charge of--you know--all the medical activities for the Sixth Special Forces group.
Q  In other words, you had more responsibility and a larger area of duty?
A  That's right.
Q  How did you feel about being given that assigment so soon after your family was killed?
A  It kept me busy.
Q  Beg your pardon?
A  It kept me busy.
Q  Were you glad for that?
A  Yes.
Q  How long did you remain as the Group Surgeon for the Sixth Special Forces unit?
A  Until I was relieved of my command when the Army arrested me.
Q  And when was that?
A  Well, it depends on whose version---
Q  (Interposing) To the best that you recall.
A  April 6 was the day that I was publicly named as suspect number one.
Q  April 6, 1970?
A  That's right.  I was then confined to quarters, but the actual charging--they couldn't make up their minds until May 1st.
Q  Well, on April 6, you say, you no longer had freedom of movement?
A  That's correct.
Q  Was a guard placed on you at that time?
A  Yes, there was.
Q  And that's the time when you decided you no longer needed to have a weapon to protect you because you had guards outside?
A  Well, it seemed inappropriate for me to have a loaded gun in the room and be under arrest so I thought it was better for all concerned if somehow I got the gun out of the room.
Q  Then on May the 1st, 1970, formal charges, I take it, against you were signed?
A  That is correct.

MR. SEGAL: Your Honor, this might be an appropriate juncture before we start a new area.

THE COURT: All right, now, let the jury retire and we'll come back today at our usual time of 2:30.  Members of the jury, don't talk about the case while you are out and remember all of your previous instructions.  Let the jury retire right now, please.
Come back at 2:30.

(Jury exits at 12:57 p.m.)

THE COURT: Court will be recessed for those of you in the audience if you will just remain for another minute or no.

MR. SEGAL: May the witness step down, Your Honor?

THE COURT; Oh, yes.  You may step down.  All right, take a recess until 2:30, please.

(The proceeding was recessed at 12:58 p.m., to reconvene at 2:30 p.m., this same day.)

F U R T H E R  P R O C E E D I N G S  2:30 p.m.

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

THE COURT: Good afternoon, ladies and gentlemen.

MR. BLACKBURN: Your Honor, may we see you for just a moment before we get started?

THE COURT: You are getting a little behind with that.  Get better.

B E N C H  C O N F E R E N C E

MR. BLACKBURN: Judge, we have just inquired--I have just talked to Wade--we want to in- quire on the situation with respect to Helena Stoeckley--whether or not she is still under subpoena here?

THE COURT: I know nothing about it.  I keep asking--I told them last night if they were going to use her, they had better do it first thing this morning or I was going to release her.  They didn't use her, so I assume she is released, but I don't know.

MR. BLACKBURN: Her lawyer, Jerry, is still around.

THE COURT: I asked Mr. Segal--I said, "What is he still doing here?"

MR. SMITH: I talked to Jerry Leonard at great length, Your Honor, this morning--talked to him for a long time, and this woman continues to say things that tie her to this case.  I will be frank with Your Honor, we have no plans to use her at this moment, but we have got too much at stake.  It is too important a case, and she has said too much for us to just, you know, out of hand say, "Oh, sure, go on.  Go away.  We will never see you again.  Go back in hiding and let the years roll by."  She is here.  The Defendant is on the stand, and we feel that we need to be able to talk with Jerry and have her available at least for this afternoon.

THE COURT: Well, today is shot anyway.  Go on.

(Bench Conference terminated.)

(Whereupon, DR, JEFFREY R. MACDONALD, the witness on the stand at the time of recess, resumed the stand and testified further as follows:)

THE COURT: Any further questions of this witness?

MR. SEGAL: Yes, Your Honor.

THE COURT: Very well.

D I R E C T  E X A M I N A T I O N  2:33 p.m. (resumed)

BY MR. SEGAL:
Q  Dr. MacDonald, you described right before lunch some of the events after your release from the hospital, your return to active duty with your unit, and up until the fact that you were formally charged on May 1st, 1970.  Let me ask you, did you give any thoughts from the time when you were in the hospital on February 17th--thereafter, all the way through the
time you were charged--did you give any thoughts to why this had happened to you or who had done these acts to you and your family?
A  Certainly.
Q  Would you share with us, please, what you concluded for yourself about how and why this had happened to you and your family?
A  Well, that is a big topic.  I spent a lot of time trying to figure out what happened to me and what happened to my family and why.  The only logical conclusion that I could come to would be that someone either had a grudge against me or it was by chance--one of the two
--a chance occurrence.
Q  Let me ask you in that regard: we have heard some testimony here in regard to some re- sponsibilities you had toward treating soldiers who had problems with drug abuse or drug ad- diction.  When did you first become involved with that area?
A  As soon as I joined the unit.
Q  You mean joined the Sixth Special Forces unit?
A  Well, also with the Third when I first came to Fort Bragg in September of 1969.  It was a problem on Post.  I also had problems with drug patients in Cape Fear Valley Emergency De- partment.
Q  Let me talk to you a bit, please, about your dealings with any soldiers who may have had problems with drug abuse or drug addiction whether they were with the Third Special Forces or when you were with the Sixth Special Forces.  How frequently did you have contact with men who were having drug problems?
A  Most of my contact was in the Sixth Special Forces.
Q  All right, tell us about that, please.
A  And I joined the Sixth Special Forces just shortly after December 1st, 1969.  The Third was disbanded, and I had become the Preventive Medicine Officer and was, in fact, the counselor not only for drugs but for other problems as well, and I saw all the drug problems, most of which were not Special Forces soldiers.  They were from different groups that we had some responsibility for, but there were some Special Forces soldiers.
Q  How did it come to be that you as a doctor with the Special Forces were nevertheless counseling or treating soldiers who were in units other than the Green Berets?
A  Well, there were PSYOPS--Pyschological Operations--soldiers attached to our units who were not Green Berets who were regular troops.
   There was a higher incidence of drug abuse among regular troops than there was among Berets.
Q  Have you any idea why that apparently was so, based upon your experience in dealing with the soldiers?
A  My experience was the general level of the troop was---

MR. BLACKBURN: (Interposing) Your Honor, we would object to his impressions; of course, if what he knows---

THE COURT: You object, what?

MR. BLACKBURN: we would OBJECT to his impressions; if he knows, of course---

THE COURT: (Interposing) Oh, I'll let him answer that.

BY MR. SEGAL:
Q  Yes, Dr. MacDonald?
A  Well, my impression has always been that the Special Forces were outstanding troops. They have a higher motivation, they were all volunteers, they were better educated for the most part, and they did not seem to have the same incidence of drug abuse as say for in- stance the 82nd Airborne, and more specifically the PSYOPS Battalion that was attached to us.
Q  Now, what did you do with men who came to you with drug abuse problems?  What was the nature of your work with them; how did you handle this problem?
A  Well, it was a difficult line to tread in the Army at that time, because basically I was a ci- vilian-trained physician, and our responsibility in the civilian world was to the patient.
   In the military world you have two masters.  You have the patient, but you also command responsibility.   In other words, I wouldn't consider sending--and you are not supposed to send a soldier out for duty, the bottom line being a battle situation, who is unfit for duty.
   Drug abuse certainly means that, so we had two decisions always to make.  There were no clear guidelines in 1969-70, yet: and we were essentially plumbing new waters, so to speak, as to how to handle the rising drug abuse problem.
   We had to decide whethor to tell their commanding officer or not tell their commanding officer.  I suppose there were even physicians who were at that time calling the CID, al- though I was unaware of that.
Q  May I interrupt you and ask you, you say you had a choice as to whether to tell the com- manding officer or not--what do you mean by that--what would you tell the commanding officer?
A  Well, I can tell you what I did.  I made a decision based on my interview and feeling about the patient as to whether he was truly a drug abuser of some proportion that would reflect on (a), his health; and (b), his performance in the field, and if it did meet those require- ments--that is, if would injure his health and/or it would affect his performance in the field--I would tell him--but then I would notify his commanding officer--I would tell him I was going to notify his commanding officer and I would.
   Many times there were what I would characterize as casual drug use that did not appear to affect either his health or his performance in the field, did not think the person had a major problem, and counseled him and attempted to get him to not use drugs.
Q  Now, did you have occasion to do any educational work with the troops that you were as- signed to work with in regard to drug abuse in December or January, 1969 and '70?
A  Surely; we were, you know, we were getting lectures on the use and abuse of drugs--- specifically, to Special Forces personnel but also to these attached units.
Q  Were you aware of the lecture which Major Williams testified to the other day, at which some statements were made to the troops about whom you could talk in confidence with about drug problems and whom you could not talk in confidence with?
A  My best recollection is that I gave personally several lectures on drug abuse in December- January.  The lecture to which Major Williams referred--I have to honestly say I don't remem- ber being there.  I may have been there and been part of the program, because we were doing this constantly.
   I spoke in JFK auditorium on drug abuse several times.  I became aware in January that there was a general feeling that the physician-client-patient--patient in the Army-relation- ship was not privileged.
Q  Which meant what, as you understood it at that time?
A  Well, in civilian practice, you do not divulge what a patient says to you unless it involves a
felony--the commission of a felony--and that's sort of how you come into the Army--thinking that way.  In the Army it is slightly different.  You can report on your patients if you see fit, and in fact, in some situations you should be reporting on your patients.
Q  When you say "reporting," you mean reporting to the military police and the CID and the commanders?
A  I guess some people would do that.  I think it is more appropriate to go to his commanding officer and leave it in the chain of command.
Q  What, if any, effect did it have on your work, though, after it became generally known that only statements made by soldiers to the chaplain were privileged--that in, could not be disposed to other persons?
A  Well, the counseling sessions that we had in our office dropped off, as Major Williams tes- tified, and that's when I learned of the feeling among the troops themselves that doctors did not have privileged communication, which was a surprise to me.  I was totally unaware of that.
Q  Did it effect you personally in any way this information that was out that statements made to doctors was not going to be--couldn't be certainly kept from military authorities?
A  Well, it decreased my workload of counseling.  Apparently the troops who felt they had a drug abuse problem were not voluntarily coming in for counseling.  Our patient population dropped rather precipitously.
Q  Did you become aware of what the attitude toward you was among some of the soldiers who were drug abusers?
A  Yes, some of the sergeants in my office and Major Williams and, I believe, Captain Heestan (phonetic) mentioned that the doctors, myself included---

MR. MURTAGH: OBJECTION, Your Honor.

THE COURT: Yes, I have to SUSTAIN the objection as to what somebody told him.

MR. SEGAL: It is offered for state of mind, Your Honor, and not necessarily for the essence of the words contained---

THE COURT: (Interposing) State of whose mind?

MR. SEGAL: I'm sorry.

THE COURT: State of whose mind?

MR. SEGAL: The persons who were referring--making those remarks.  This is not offered for the truth or falsity of those remarks.  It is a belief they shared, and they shared that belief with the Defendant.

MR. MURTAGH: Your Honor, we would OBJECT.  We think it is being offered for the truth or falsity of the statement.

THE COURT: I'll OVERRULE.  Let it go.

BY MR. SEGAL:
Q  Would you please tell us the discussions you were having with Captain Heestan (phone- tic), Major Williams and the others?
A  That the doctors, myself included, and specifically as the person doing the counseling, were suspected of being finks.
Q  Is that the term that was used--"finks"?
A  That's right.
Q  And what did you understand that to imply or mean at the time?
A  Turning troops in to either commanding officers or the CID for drug abuse.
Q  In fact, was that true?  Had you turned anyone in to at least the CID or the MPs on the basis of having received some information in your relationship as a doctor and then giving that later to law enforcement people?
A  No, I did not.
Q  Now, had you also had occasion to work with drug abusers at Cape Fear Hospital?  You mentioned that a few minutes ago.
A  Yes, I did.
Q  What was your contact with Cape Fear and during what period of time were you connec- ted with that hospital?
A  Well, I don't distinctly remember when I began working at Cape Fear Valley, but I had been working shifts in the emergency department.  I believe they were 12-hour shifts--7:00 to 7:00, I believe--and I had been working shifts there about on a weekly basis, and we would treat two types of drug abuse problem.  One was overdoses and one was bad trips.
   They are not, by the way, synonymous.  Overdose means too much and bad trip means a bad reaction to whatever dose they took.
Q  First of all, where is Cape Fear Valley Hospital located for those who are not familiar with the Fayetteville area?
A  It's in Fayetteville.  It services the majority of Fayetteville.
Q  And was this a hospital which you were moonlighting at, the same as at Hamlet later on?
A  That's correct.
Q  Was that also with the permission of your commanding officer that you worked at Cape Fear?
A  That's correct.
Q  Now, you mentioned about people having bad trips.  Very briefly, what are you referring to?  Describe it--what the situation was medically.
A  Well, the usual one in 1969-'70  was either amphetamine ingestion or LSD ingestion.  The drugs were being sold on the street as many things, but in fact, if they were analyzed, they were usually amphetamines or LSD.  And the usual bad trip in an emergency setting was that they would come in for an acute paranoid reaction--a fearful reaction or a state of agitation
--sometimes in restraints.  Sometimes the police would bring them in.
Q  Over what period of time had you been at Cape Fear Valley Hospital?
A  I honestly do not recall when I started.  I would say months.  It may not have been that long.
Q  When did you last work there?
A  Relative to when?
Q  1970, 1969?
A  You mean relative to February 17?
Q  Yes.
A  The prior week.  I believe the prior week.
Q  During the period of time you were at Cape Fear Hospital, did you have any unusual inci-
dents--personally--with people who were being treated for drug abuse or overdoses?
A  Yes.  I am now an emergency physician and now it is not extraordinary.  Then it was a little more extraordinary to me, although I had seen it before.  We had some LSD bad trips. The most memorable one, however, with the heroin overdosaging in which the patient had injected heroin and had his collapse at home.
   His partner, who happened to be another Army personnel, put him in a tub of water, which was one of the treatments at the time among addicts.  They thought that by immersing the person in water and putting ice cubes in the water, it would shock him into an awake state, so we usually had a partially-drowned heroin overdoes person, which is exactly what this pa- tient was.
   He stopped breathing shortly before he arrived at the Emergency Department and we suc- cessfully resuscitated him.  His friend was the opposite of being depressed from heroin--he was agitated.  I do not know what he was taking--he was not my patient--but he was there.
   We tried to get information about this patient's next of kin, which the other trooper refused
to give us, and to make a long story short, I eventually contacted his First Sergeant in the 82nd Airborne, because it was the only person I could find who was associated with the pa- tient.
Q  The effect of that was what?  The sergeant became aware of the drug contact at the hospital?
A  The sergeant became aware and he was transferred to Womack Army Hospital.
Q  Cape Fear is a civilian hospital in Fayetteville; is it not?
A  That is right.
Q  But you were treating Army personnel who lived off Post there or lived in the town or got sick in town.
A  That is right.  Some people chose to use the civilian hospital, so their injury or illness would not be known by the booking sergeant, so to speak, or the desk sergeant at the Army Hospital.
Q  Dr. MacDonald, you, as a doctor, chose voluntarily to become a physician with the Special Forces; is that right?
A  That is correct.
Q  How is it you came to elect to be with that unit?  What is the reason that you had in mind?  What were you hoping to do?
A  Well, I had a choice to make when I went into the Army as to several different possibili- ties: one being a flight surgeon; one being a regular medical officer; and the possibility of going into the Green Berets and becoming airborne came up down at Fort Sam Houston, Tex- as, while we were in our five weeks of basic.
   I volunteered for that because I felt that it was the best branch of the Service.
Q  Was there any specific reason that you felt that that was such a desirable branch for you to serve in as a physician?
A  Well, I felt that it was a better way to spend two years, working with the best troops av- ailable and maybe doing better things in the field than doing dispensary-type care as a gen- eral medical officer.
Q  Now, between February 17, 1970, when you talked with Specialist Mica, who was ques- tioning you in your house--when was the first time between that date and up until May 1st, 1970, that you had any conversation with anybody from the CID?
A  April 6th.  You mean a formal conversation?
Q  Yes.  I mean a formal conversation about the events that took place on February 17?
A  On April 6th.
Q  And we have heard, of course, here in court, part of the tape of the conversation you had
with the CID agent on April 6th.  That is the same context we are talking about; is it not?
A  That is correct.
Q  Were you at all concerned, or did it interest you in any way that you had not had a formal contact with the CID between February 17 and April 6 of 1970?
A  Most certainly.
Q  What was the nature of your concern?
A  Well, my family had just been murdered by four people in my house.  It seemed unusual to me that they were not interested in what I had to say, and I called Mr. Grebner, the chief of the CID, on many occasions between February 26th and April 6th.
   We had several phone conversations.  As a matter of fact, I went over to the office three or four times.  The only interaction we ever had was that they re-fingerprinted me, and foot- printed me because Mr. Bennie Hawkins re-fingerprinted and footprinted me.
Q  Well, now, what was the purpose of your calling Mr. Grebner at the CID Detachment?
A  Well, I was trying to give him information about the possibilities, the possible assailants from that night, and to inquire as to the status of the investigation.  There were a lot of rumors on Post.  People would constantly be telling me things.  You would hear that they had a girl in custody or they had two people in custody or they had one of the guys in custody, and I called Mr. Grebner and said, "What is going on?"  He would constantly say, "Don't be alarmed.  We are doing the investigation.  We will get to you."  It seemed very strange that I wasn't being questioned and I wasn't being told anything.
Q  Did you tell him that you had heard that they had a suspect or a possible suspect in cus- tody?
A  Yes, I did.
Q  Did he ever offer an explanation to you as to why you weren't asked to look at or see anybody in person?

MR. BLACKBURN: (Interposing) OBJECTION.

THE COURT: OVERRULED.

THE WITNESS: He told me specifically that he was not at liberty to--I called specifically about a female that he had in custody.  He told me that he was not at liberty to discuss it and he would call me when it was appropriate.

BY MR. SEGAL:
Q  Well, did he call you in on April 6th of 1970, to talk with him about the case?
A  He did not.
Q  Now, tell us how you came to be at the CID offices on that day and have the conversa- tions that had been recorded and partially played here?
A  I called Mr. Grebner.
Q  When, the morning of the 6th?
A  That is right.
Q  All right, tell us about that.
A  I inquired as to the status of some personal possessions that I wished to get out of my house for my Bachelor's Officers Quarters including some clothing and just personal effects. He said, "Why don't you come over and we will talk about it."  I went over to the CID Office to discuss the personal effects and some furniture.  When I arrived, he asked me to come into his office and have a seat.
Q  What happened then?
A  I took a seat.
Q  How did the discussion about personal effects and furniture go?
A  Well, when I walked in the office and took the seat, Mr. Shaw and Mr. Ivory who were till then totally unknown to me came in behind me.  No one said anything, so when Mr. Grebner said, "Have a seat," I took a seat.  I said, you know, "Are we going to settle the issue of my personal effects since I have been calling you on that and other issues for several weeks?" He said, "As long as you are here, there are some questions I would like to ask you; but first, I would like to read you your rights."
Q  When they read your rights, he, in effect, warned you that anything you said at that time could be used as evidence against you; is that right?
A  That is correct.
Q  Did you make a decision as to whether you were going to talk to them or not at that time?
A  I did.
Q  What was the decision you made?
A  I told them that I would be happy to talk to them and that I had been trying to for several
weeks.
Q  Now, at any time between February 17th of 1970, and the date you were formally charged on May 1st, 1970, did the CID ask you to come in to view any line-up of any person?
A  Never at any time.
Q  At any time in the same time period, did the CID ask you to view any photographs of sus- pects or persons under investigation?
A  They did not.
Q  At any time, did the CID ever ask you for the names and identifications of persons who you might have had some bad contacts with that would cause you some concern?
A  I volunteered those on the phone with Mr. Grebner, and I also volunteered them when Mr. Bennie Hawkins was re-taking my fingerprints.  I did not know what Mr. Grebner was doing at the other end of the phone, but Mr. Hawkins didn't take any notes.  I do not know what the outcome was of my comments to them.
Q  You say that Mr. Hawkins re-took your fingerprints.  Were you initially fingerprinted at some point in connection with this case for the purpose of assisting the CID?
A  I was fingerprinted in the hospital.
Q  Back on February 17th?
A  That is correct.
Q  And that was a full set of handprints taken of you at that time?
A  I don't recall.
Q  Did anybody explain to you why they were seeking a second set of prints when they came around in August the second time?
A  It was a second, third, and fourth set of prints.  At each time, Mr. Hawkins said that the prior ones had been lost at Fort Gordon.
Q  Now, on May the 1st of 1970, you were formally charged in this case; is that right?
A  That is correct.
Q  What was your status as far as being confined or not confined at that time?
A  I had been confined since April 6th except for a visit with yourself.  I was confined to my Bachelor's Officers Quarters with a guard at the door.  That was the confinement.  I was allowed to go once a day to the PX if I needed to, and I could go to meals.  I also, eventual- ly, got permission to run with my escort officer.  My escort officer also wanted to run.
Q  For the purpose of exercise, you mean?
A  Exercise.
Q  Was that the period around when you were charged on May 1st--is that when you de-cided to give him the gun that Lieutenant Harrison had given you--did you turn that back to them?
A  Yeah, it was probably the last week in April or the first week in May that I gave the gun back to him.
Q  Dr. MacDonald, at any time that you had that gun, did you ever consider suicide?
A  It probably crossed my mind after April 6th.
Q  What do you mean, "it probably crossed your mind"?
A  Well, I remember the night of April 6th as not being the best night of my life.
Q  You mean that was following the CID review?
A  That is right.
Q  Now, the military proceedings against you began formally about June of 1970, is that right?
A  That's correct.
Q  And who presided over those proceedings?
A  Colonel Warren Rock.
Q  And how long did they last, the military proceedings in this case?
A  Until the middle of October.
Q  1970?
A  That's right.
Q  And you were present throughout those proceedings yourself, were you not?
A  That's correct.
Q  Did you testify at the Article 32 proceedings?
A  Yes, I did.
Q  About how long did that take?
A  My testimony?
Q  Yes, your testimony?
A  I would guess two days.
Q  Now, were you under any compulsion--any requirement to testify at those proceedings?
A  No, I was not.
Q  Was that a decision that you made after talking with me as your attorney?
A  That's correct.
Q  Were you also questioned by the Government's attorneys at that time in the military pro- ceedings?
A  There was lengthy cross-examination.
Q  And did Colonel Rock himself, the investigating officer--he also questioned you?
A  He asked excellent questions.
Q  Now, in connection with your Article 32 proceedings, was there some issue about the hair and hair identification raised at that time?
A  Yes, there was.
Q  And at some point did the CID take hair samples from you?

MR. MURTAGH: OBJECTION, Your Honor.  Can we come---

THE COURT: I will let him say yes or no; that's all you need, isn't it?

THE WITNESS: Yes, sir.

THE COURT: Very well.

BY MR. SEGAL:
Q  Now, there has been testimony quite a way back by CID Agent Ivory, in which he said that you had assaulted some CID agent when your hair sample was taken?

MR. BLACKBURN: Your Honor, we would OBJECT to this.

MR. SEGAL: That is his testimony, Your Honor.  We have a right to respond to that.

THE COURT: Well, let me see you and see where you are going with this; I don't know.

B E N C H  C O N F E R E N C E

MR. SEGAL: Can I tell you where I'm going before you argue?

MR. MURTAGH: No; just a second.  You brought up the point.  This was on cross-examina- tion.  Ivory was being asked something about hair samples.
   The Government did not get into this.  I don't know who assaulted who.  It is totally irre- levant to this case.

THE COURT: Here is the point.  I don't know where he is going either, but the thing that I immediately saw was the possibility that he could show that Ivory had some bias against him by reason of something that took place.
   Now, where are you going?

MR. SEGAL: To show that Mr. Ivory, in fact, testified contrary--his statement here was con- trary to the facts--as Dr. MacDonald says it.  We are not going to get into a long issue.

THE COURT: Well, I know, but when you get into cross-examining as to a side issue, then you are needlessly taking up time, and possibly injecting prejudice in it.
   Now, if you've got some legitimate thing going to your defense of the case, that is one thing.  But if you are going to get us running a rabbit out here that ain't got anything to do with it, then I am going to sustain the objection.

MR. SEGAL: Let me say that I don't intend to do as Your Honor warns against, and that is what Mr. Ivory gratuitously, frankly tried to put it to the Defendant.  The question had no- thing to do with this.
   He just said MacDonald assaulted him.  We want simply to have a chance to rebut that and go on to the next topic, Your Honor.
   This is not any side show.  I think our examinations have been germane to the issues of this case.

THE COURT: Well, you have had no objections.

MR. SEGAL: I think that is indicative.  It is germane.

THE COURT: I am with you on that.

MR. SEGAL: I just wanted to get my record clear.

MR. MURTAGH: Your Honor, Mr. Ivory did not testify that MacDonald assaulted him.  I believe he mentioned the name Reeves--there was an agent by the name of Reeves who apparently was kicked.
   This is also getting into whether Mr. Segal was assaulted and whether Mr. Eisman was as- saulted.

MR. SEGAL: That is not true, Judge.

MR. MURTAGH: You have made a point.

MR. SEGAL: This is several minutes, Your Honor.  I wish the Government would ask for an of- fer if they want to know where I am going.  We waste more time with these--guessing, and then you find out I am not going there.
   I want to get this thing clear on going on through the rest of the examination.

THE COURT: All right; where are you going?

MR. SEGAL: I want to get an answer to this question whether he did or did not assault any CID agent.

THE COURT: I'll ask him that.

(Bench conference terminated.)

THE COURT: Did you or did you not assault CID Agent Ivory?

MR. MURTAGH: No, it wasn't Ivory, Judge.

MR. SEGAL: Or any other---

THE COURT: (Interposing) Or any other?

THE WITNESS: No, sir.

THE COURT: Okay.  Well, that's--now ask something else.

(Bench conference terminated.)

BY MR. SEGAL:
Q  Now, Dr. MacDonald, during the course of the Article 32 proceedings, did you make any attempt to work with anyone to try and develop drawings of the suspects who assaulted you and your family on February 17, 1970?
A  Yes, I did.
Q  Now, did someone from the CID ask you to do that?
A  Never.
Q  Had the CID ever asked you to sit down with them to perhaps try to work up police draw- ings of suspects in this case?
A  No, they did not.
Q  If they had asked you, would you have done that with them?
A  Certainly.
Q  How did the issue then come up during the Article 32 of trying to prepare drawings of the suspects?
A  I believe you first broached the subject to me, and eventually arranged for a policeman to come from Philadelphia with a Identokit--a composite kit--to make up basically a drawing but it's made from a kit that's called an Identokit.
Q  How did that process actually work?  What is the Identokit like that was operated with you by this police officer?
A  Well, the officer talks to you and says, for instance, "What does the hairline look like?"
And you say, "Well, it was peaked or it was straight," and he takes out some hairlines.  He has ten of each--ten hairlines, ten noses, ten sets of eyebrows, ten chins, and so he puts a hairline on the sheet of paper.
   He then says, "What are the cheeks like?" so, he puts out a pair of cheeks, and eventually you build this face, and you sort of have a limited number of choices but you end up with a composite that is the best that he can reproduce from your verbalizations of what the person looks like.
Q  Let me pass this to you for a moment, and we will come back to this topic.  I want to see if we can find the drawings to show them to you.  Now, after you worked with that police- man, that was in the middle of the Article 32 proceedings; was it not?
A  That's correct.
Q  During the Article 32 proceeding itself, were you shown any photographs of a woman who was identified to you by the name of Helena Stoeckley?
A  I think when I was on the stand on cross-examination I believe they showed me a photo- graph that they labeled as Helena Stoeckley.
Q  When you say "they," are you referring to the picture shown to you by the Goverment prosecutor in that case?
A  The Goverment's prosecutor.
Q  Do you recall the name of the prosecutor, by the way?
A  Certainly.
Q  Can you tell us the name of the prosecutor?
A  Captain Somers.
Q  Captain Clifford L. Somers?
A  That's right.
Q  In that photograph, to the best of your recollection, was the woman wearing a hat?
A  I don't believe so.
Q  Did the woman have blond hair in that photograph?
A  She did not.
Q  Was it a full-faced photograph or a photograph of some other dimension?
A  I honestly don't recall at this point.  I think--I don't think it was like a mug shot.  It may have been but I do not think it was a full-face mug shot.
Q  Now, I want to show you the drawings that I was referring to a minute ago.  Let me show you a group of four photographs markad D-104, 105, 106, and 107 and ask you first whether you have ever seen photographs like this before?
A  Yes; I have.

(Defendant Exhibit Nos. 104, 105, 106, and 107 were marked for identification.)

Q  And where did you see such photographs before?
A  These are copies of photographs made from the policeman's rendition of the four assail- ants.
Q  Back in 1970?
A  That's correct.
Q  Now, in each instance--that is, at the time when these pictures were made and consider- ing the process, did any one of these pictures look most like--which one of these pictures looked most like the mental picture you had of the assailants that you had seen on February 17?
A  There were two that I thought were fairly good, and there were two that were less good.
Q  All right, let's take one at a time of the ones you felt were fairly good.
A  I think the composite compiled by the policeman from Philadelphia of the black male and the shorter of the two white males were fairly good.
Q  All right, indicating D-106, representing a drawing-like photograph of a black male and D-104 indicating a while male with a what--a small moustache; is that right?
A  That's right.
Q  Now, of the remaining photographs, how did you evaluate, say, D-105 which is the third of the men you described?
A  Sort of a fair representation.  I never felt good about it, but we really didn't spend much time on him because I didn't feel as though I had a very good remembrance.
Q  All right, now, finally the fourth of these photographs which is of the female--what was your impression of the success of the process working with the Identokit in that regard?
A  Well, this is--you know--clearly the weakest.  As I told you then and told him, this rendi- tion has sort of a sweet feeling to it and that is not the feeling I had at all from the person in my house.  It also--it just doesn"t give the sense of the person which the later artist did.
Q  Now, during the Article 32 proceedings, did you hear then Sergeant Richard Tevere testi- fy?
A  During the Article 32?
Q  Yes, sir.
A  Yes, I did.
Q  Did you hear then Specialist Kenneth Mica testify?
A  Yes, I did.
Q  Did you hear Mr. Ivory and Mr. Shaw testify?
A  I certainly did.
Q  Dr. Gammel and Hancock that testified in that proceeding?
A  I did.
Q  Did Specialist Newman, a hospital specialist testify then?
A  Yes, I heard Specialist Newman.
Q  Did a CID agent by the name of Mr. Connolly also testify then?

MR. BLACKBURN: Your Honor, we would OBJECT to this.

THE COURT: Well, I think that you could probably incorporate all those names in one question in the interest of time.

MR. SEGAL: All right, thank you, Your Honor.

BY MR. SEGAL:
Q Let me suggest to you a list of names and ask you whether you remember these persons being present and testifying at the Article 32: Richard Tevere, Kenneth Mica, William Ivory, Robert Shaw, Dr. George Gammel, Dr. William Hancock, Specialist Michael Newman, CID Agent Paul Connolly, Mrs. Elizabeth Krystia--now Elizabeth Krystia Ramage--Dr. Severt Jacobson, Special Agent Robert Caverly of the FBI, Dr. Merrill Bronstein, Dr. Frank Gemma, CID Agent Bennie Hawkins, Mr. then Sergeant Hilyard O. Medlin, Mr. Craig Chamberlain, Miss Janet Glisson, Mr. Dillard Browning.  Did you hear those persons all testify at the Article 32?
A  I heard all those persons except I don't believe Paul Connolly testified.
Q  That is my mistake.  Minus that one name, do you recall if those persons all testified?
A  Again, the other thing about Bennie Hawkins.  I am not sure if I read the statements or if he testified.  But the other persons did testify.
Q  Subject to that possibility, do the other names seem familiar as the persons who testified at those proceedings?
A  Yes, they did.
Q  Now the Article 32 Proceedings ended in September, with the actual testimonial phase ending in September of 1970; did it not?

MR. BLACKBURN: Your Honor, we would OBJECT to this.  We would like to be heard on it.

THE COURT: Well, he has already stated that it ended in October of that year.

MR. SEGAL: The testimonial phase only.  One more question and we will be through.

THE COURT: All right, ask it.

BY MR. SEGAL:
Q  The testimonial phase ended in September of 1970?
A  The actual testimony itself was late September, yes.
Q  And in October of 1970 was your condition, your status as a confined person changed?
A  Yes, they were.
Q  What happened at the end of October, 1970, in regard to your status as a confined per- son?
A  I was no longer confined because charges were dismissed.
Q  What happened, then, after that.  Did you stay in the Army?
A  Until December.
Q  In December of 2970, what happened to you then?
A  I received an Honorable Discharge.
Q  Now prior to leaving the Army, had you had any discussions about your personal family proceedings, your goods that had been in your home at 544 Castle Drive, other than your calls to Mr. Grebner, which you described already?
A  Yes; many, many discussions.
Q  Did you have a chance to go through your home and ascertain whether all the goods that had been in your home prior to the attacks on February 17, 1970, were still there?
A  I did not have that chance; no.
Q  Did anyone on your behalf go through the home?
A  Not on my behalf.  Someone apparently went through the home in September or October.

MR. ANDERSON: OBJECTION.

THE COURT: Well, let the witness just tell us what he knows, please.

BY MR. SEGAL:
Q  Did you ultimately ascertain whether something--anything of value--was missing from your home?
A  Yes.
Q  And not accounted for?
A  Yes.
Q  What were the items?
A  Well, the CID itemized what was present in my house in the fall of 1970, and missing were at least two rings that the Kassabs had requested that I acquire.  Actually, they had re- quested one ring which was a family heirloom, and when I requested that ring, I also request- ed a ring that I had given Colette that had been made for her in New York City.
   The CID was unable to give us either of those rings.
Q  Now, let's go back for one second.  When did you first ask for either one of those two rings?
A  I don't recall.  It was, I think, June or July.
Q  1970?
A  Of 1970.
Q  And at whose instance were you acting?  Did anyone ask you to do that to get the rings back, one of them back?
A  The Kassabs asked for the family ring.
Q  Now, the Army and the CID did keep a certain amount of your property in connection with the investigation of your case; did they not?
A  Yes, they did.
Q  But you are saying that as far as you know, neither the CID nor the Army never kept those two rings as evidence in any matter that you are aware of, are you?
A  No, they did not keep them.  They did not have them.
Q  I want to show you a document, Dr. MacDonald, and ask you whether you can identify it?

(Pause.)

(Defendant Exhibit Nos. 101, 101(a), 101(b), and 101(c) were marked for identification.)

BY MR. SEGAL:
Q  Dr. MacDonald, let me show you these two sets of documents--one is marked D-101--and D-101(a) is an enlargement of the same documents, and ask you if you recognize it and tell us what it is, please?
A  Defendant Exhibit 101 is a letter to myself from the Department of the Army, Lieutenant Colonel Loane, the Fourth, who was Chief of Personnel Claims Division.  This letter is in re-sponse to my request for household goods or payment for those goods.
Q  Would you read the second paragraph, please, out loud of that letter?
A  The second paragraph?
Q  Yes.  All right, why don't you read--you might as well start with the first paragraph.
A  "Your claim, for loss and damage to your household goods, arising out of the events of the night of 16-17 February 1970, at your assigned quarters at 544 Castle Drive, Fort Bragg, North Carolina, has been approved for payment in the amount of $3,171.75---"
Q  (Interposing) Skip that technical section there.
A  "and has been certified to a disbursing officer for issuance of a check in that amount.  In adjudicating your claim, consideration was given to the fact that the majority of the items listed on the forms 1089-1, submitted by you on 23 November 1970, were eventually released for return to you.  As to which items were released, as opposed to those either missing, dam- aged, or still being retained as evidence, we have relied on reports furnished by Colonel Daniel A. Lennon, Staff Judge Advocate, XVIII Airborne Corps and Fort Bragg, Captain Clifford L. Somers, JAGC, of Colonel Lennon's office, who prepared a detailed inventory of the items to be returned to you, and Mr. Thomas Waddington, Claims Officer, Fort Bragg."
Q  Going to the next line, the next sentence, please.
A  "In addition, we have conferred at some length with Mr. Waddington by telephone.  In this connection, we are advised that Mr. Waddington, Captain Somers and CID agent Ivory con- ducted a joint inspection/inventory of your quarters on about 25 November 1970 and went over the list of items claimed on an individual basis."
Q  And the concluding sentence there, please, is?
A  "Based on the available evidence, we have concluded that the following items are either missing, damaged, or not being returned to you and are therefore compensable."
Q  I don't want you to read the whole list.  Would you look at item number 150?
A  It is a heart-shaped diamond ring.
Q  And whose ring was that?
A  It was Colette's.
Q  Given to her by whom?
A  Someone in the family.  I don't know the specific person who gave it to her.  I had the im- pression it was from Helen Madison, but I don't know that for a fact.
Q  What about item number 151?
A  A star sapphire ring that I had made for Colette in New York City in about 1964.
Q  Now, were there some other items of jewelry that were missing from your house or not re- turned to you which the Government paid you for--like item 160, for instance?
A  My 1961 class ring.
Q  That was from where?
A  From high school.
Q  What about item 162, please?
A  A silver identification bracelet.
Q  Item 163?
A  A lady's 24-carat wedding band.
Q  Was that Colette's wedding band?
A  That is correct.
Q  What about item 167?
A  Man's ring.
Q  And 168?
A  Antique-gold railroad watch.
Q  Now, to your knowledge, where was the heart-shaped diamond ring which is listed as item number 150?  Where was that ordinarily kept by your wife?
A  In the jewelry box on the counter in the master bedroom.
Q  What about item 151, the star sapphire ring that you had made for Colette?
A  Same place.
Q  What about item 160, your high school class ring?
A  That would have been probably in one of my drawers in my bureau.
Q  Also in your master bedroom?
A  That is right.
Q  What about the man's silver ID bracelet listed as item 162, where would that have been kept ordinarily by you?
A  Same place in my bureau.
Q  How about item 163, the lady's wedding band?
A  Normally, it would be on Colette.  It may have been on the top of the counter or in the wedding--in the jewelry box.
Q  Regardless of where it was, have you ever seen it since February of 1970?
A  No.
Q  What about the item listed as item 167, man's ring, black onyx?
A  I don't recall that ring to be honest.
Q  And finally, what about item 168, antique-gold railroad watch?
A  I believe they actually gave it back to me without realizing it.
Q  That would be an error?
A  That is right.
Q  But the other items there, have you ever seen since February of 1970?
A  No.
Q  Do you have any idea where they are?
A  Do not.
Q  Have you ever seen them introduced as evidence or offered in evidence in any proceed- ing?
A  They have not.
Q  Now, after your honorable discharge from the Army in 1970, whore did you go and what did you do, Dr. MacDonald?
A  I don't really remember the last part of the month of December.  It was kind of a depres- sing time with Christmas coming up.  I was seeing friends and friends were trying to see me and we were also trying to re-open the investigation.  We were making trips to Washington, D.C.  I was having meetings with Congressmen and Senators and newspaper people and TV people.  There were people trying to write a book about the case.  It was a very confusing and depressing time.  I don't have clear recollections of specific days.
Q  Where did you eventually move to?
A  To New York City.
Q  About when did you take up residence in or about New York?
A  It was right in there.  It may have been the first week in January, but I don't know.  It was somewhere very close in there.
Q  You say that it was a very depressing period of time.  Can you tell us what was the source of your depression?
A  Well, the holidays were coming up and it added to the acuity of the depression that I was in at the time from the loss of my family.
Q  When you went to New York City, what were your plans for your future and what you were going to do with the rest of your life?
A  Well, I was trying to figure that out.  The plans that Colette and I had always had, you know, they were shattered now.
Q  What had been the plans when Colette was alive that you and she had been making?
A  Well, I had turned down a residency in orthopaedic surgery at Columbia and accepted one at Yale because Yale was in Connecticut, and we would be able to live either on a farm or on the water, and I could still practice at a major university teaching hospital, and we could have either a boat or a farm and animals.  We had not finally decided which we were going to do, but that was the plan to live in the country and be near a major hospital.
Q  When you went to New York in January of 1970, did you have any idea of going on with the post-graduate studies in medicine?
A  Yeah.  At that point, I still thought that I would be going to Yale in orthopaedic surgery.
It did not have any of the excitement or feeling attached to it that we had always attached to my residency.  It was a very sought-after residency.  At this point in December of 1970, it seemed totally unimportant to me.
Q  What had happened to the residency?  Why was it no longer important?
A  Well, I mean, I just lost my family.
Q  What about your own ambition?  Wasn't that still there?
A  No.  Things had changed.  It didn't matter quite as much.
Q  Did you take up any work at that point in New York?
A  Yes.
Q  Tell us about that, please.
A  I became a physician who was running a clinic at the world Trade Center in lower New York and downtown New York.  There were I don't know how many thousands of workmen, but we had 60 to 70 injured workmen a day.  It was really a huge project, and I was the physician in charge of the clinic.  At night, I worked for a physician who ran two offices on the 24-hour basis.  I ran one of his night offices to treat the night people.
Q  Was this what your goal was now?  Was this a job you had sought out and wanted for some special reasons to take the job?
A  No.  This was a filler.  It was a way to keep busy, and I was working both jobs, I think, because I was not sleeping.  It was easier to work than not to work.
Q  How long had you had this desire to be a doctor?  When did you first think about becoming a physician?
A  I suppose it crossed my mind all through high school, but it really only solidified in college.
Q  Did you and Colette talk about that as a career choice for yourself and how she felt about it?
A  Yes; we did.
Q  Would you share some of that with us, please, Dr. MacDonald?
A  She was very happy about it.  She was very proud.  She was always proud of my ability as a student and/or an athlete.  She was very proud of the fact that I went on and became a physician.  We thought it was a nice way to live, and we shared everything, and we shared my going through medical school and internship.
Q  Did she ever express her feelings about being a doctor's wife--how she felt about that role for herself at least for some period of her life?
A  Well, not in a social sense.  Colette would never have thought of things that way.  She felt that we would have a good life, but it was because we could share it and not because she could have teas as a doctor's wife.  That wasn't her role at all.
Q  How long did you plan on staying in New York City with the two jobs you have described for us?
A  Until my residency started July 1st, 1971, at Yale.
Q  At some point, did your goal or your decision to go to Yale University change during that spring in New York?
A  Yeah.  I decided eventually to go to California and become an Emergency Physician at least for the present.
Q  What were the factors that caused you to give up your goal of taking a residency and getting the specialized status and to go to California instead?
A  Well, there were a lot of reasons.  I think the pressure of the academic residency was not appealing to me at this time because I did not have the interest in becoming a great ortho- paedic surgeon teaching at Yale because it was part of Colette and the kids and that was our dream.  And with part of it gone, it did not make much sense, but I had other reasons also.
Q  Well, I would like you to share those with us, please?
A  The east coast had become a very sad place for me.  I was uncomfortable.  My friends were very supportive, and yet I was uncomfortable receiving their support.
   No one really knew what to say, and I didn't know what to say, and it was constantly there because it was constantly in the press; and the re-investigation asked for by myself and Mr. Kassab was now beginning--the goal of which originally, of course, was to inves-
tigate the original investigation.
   It didn't turn out that way.
Q  How about you and Mr. Kassab during that period; were you in agreement as to what the two of you should be doing about the re-investigation?
A  No.
Q  Tell us about that, please?
A  I would say starting in September as the--as it was clear the Article 32 was going to dis- miss the charges against me, Freddie and I had many conversations, almost on a daily basis, about what to do when the charges were dropped.
   And they involved basically continuing the investigation until we found the people who had been in the house.
Q  Who was he talking about continuing this investigation?
A  Himself and myself and private investigators, if we could afford them, and also if we could encourage the FBI to reopen their investigation of the case.
Q  Well, tell me about the discussions about how you and he were going to investigate the case?
A  They began the late summer, early fall of 1970, and got progressively wilder as the winter progressed.
   And as I was getting out of the Army December 5th, 1970, took on a new urgency because I was now available to--you know, to assist him or to lead him and to go back to North Caro- lina and investigate.
Q  Were there specific proposals that you and he go to North Carolina to do some investiga- tions?
A  Many times.
Q  Tell us about it.  How were they expressed?
A  That the search would never end, that we would spend weekends going down to North Carolina; that we would find the assailants; that we would supply leads and tips and we would run down leads and tips.
   Specifically that when I was at Yale, when I had a three-day weekend we would leave from--he would fly up to New Haven, Connecticut, and we would leave from New Haven and go to Fayetteville; and it became a very strange, tense, draining series of communications.
Q  Well, what was your feeling about these particular ideas of how that you and he would go looking for the people that the CID had not found or looked for?
A  Well, initially, I have to say that I was for it.
Q  You favored the idea; then what, if anything, caused you to change your mind?
A  Well, every time I went into a bar in downtown Fayetteville, some soldier would offer to buy me a drink.  It was---
Q  (Interposing) Did they know who you were?
A  Everyone knew who I was.  I was on the front page for five months.
Q  Did they want to talk about the case?
A  They wanted to talk about the case; they wanted to tell me where Helena Stoeckley was; they wanted to give us a tip; and we would try and we--you know--it was crazy.
Q  What did you decide to do?  How did you decide in your own mind how this investigation or re-investigation should proceed to find these persons?
A  Well, I went to Washington and went to the Justice Department.  I thought that---
Q  (Interposing) Let me ask you, did you go alone or did you go with someone to the Justice Department?
A  I went with Congressman Allen Lowenstein.
Q  And how did you happen to go with Congressman Lowenstein?
A  He called me and he said he could get me entree into the Justice Department.
Q  Did his congressional area at that time include the area near where you lived?
A  Near where I had lived.  He was not actually my congressman on Long Island, but he was not too far, and he was at that time a very energetic and fairly influential congressman, for a congressman.
Q  As a result of Congressman Lowenstein's suggestion, did you and he get together and go to the Justice Department in Washington?
A  Yes, we did.
Q  Please tell us about that?
A  We went in December, as soon as I got out of the service--December 11th or 13th sounds familiar but that may be wrong.  It was in that range.
   We flew to Washington.  He took me through the Senate and the Congress and we met probably eight or ten senators, and maybe 18 or 20 congressmen.
   We gave them copies of Colonel Rock's report.  We gave them copies of Mr. Kassab's alle- gations of the Army's wrongdoings.  We gave them copies of Lieutenant Malley's charges of perjury and obstruction of justice.
Q  Lieutenant Malley was one of your assistants defense counsel?
A  That's right.
Q  All right, what else did you do?
A  We talked with Senator Sam Ervin.  We talked with--the senator who has the Golden Fleece award--William Proxmire.
   We talked with anyone who would listen, to be honest.
Q  And you were giving them copies of various documents when you had copies to share with them?
A  That's right.
Q  Now, did you ever get to your goal at the Justice Department?
A  We got to the Justice Department.  We didn't get any satisfaction.
Q  Well, tell us what happened when you went to the Justice Department?
A  We went to some sort of information desk, and we were then ushered past--we were try- ing to see the person in charge of the criminal division of the Justice Department.
Q  You mean the Assistant Attorney General?
A  That's right.
Q  Do you remember his name?
A  It was either Will Wilson or Henry Peterson, I've forgotten which one we were trying to get to at that time.
Q  All right; what happened when you went to the Justice Department with Congressman Lowenstein?
A  The information clerk sent us to a high ranking secretary.  The secretary kept us cooling our heels for 15 or 20 minutes.
   Eventually she received a call back from--she said--I believe Mr. Wilson's office, and that he was unavailable.
   We then asked to see his superior.  We were denied that right.  We asked to see his infer- ior, and we, I think, talked at that time with Carl Belcher.
Q  He was the attorney in charge of the general crime section of the Justice Department?
A  I think so.  I think that was the day we had a--I personally had a phone conversation with him from a desk in the lobby.
Q  You and Congressman Lowenstein were never allowed to go upstairs to the inner sanctum of the Justice Department, is that right?
A  That's correct.
Q  What happened after that effort?
A  They told us they would be in touch when it was appropriate.
Q  When did you next hear from the U.S. Justice Department?
A  When I was invited to speak at the grand jury in 1974.
Q  Now did you feel in the months of 1971, about Mr. Kassab's continuing efforts to carry on the investigation by personal means in North Carolina?
A  Well, I had made up my mind as I was leaving the Army that I was not going to do that, but I had not communicated that to Mr. Kassab.
Q  What was the basis of that decision, Dr. MacDonald?
A  Well, it was, I thought--I was a physician and I found out in just a few weeks that I was not a private investigator.  It didn't work.  It seemed a little silly.  It seemed a little melo- dramatic and ineffective, and I felt a better way to do it would be through the Justice De- partment, still believing that they would really attempt a re-investigation, but I did not com- municate that to Mr. Kassab.
Q  Why did you not tell him that you had changed your mind about going to the bars of Fay- etteville?
A  I guess a sense of guilt that if he was going to continue that type of search, that I should
be helping him.
Q  But in your heart of hearts, you had no will for it?
A  None whatsoever.
Q  Did Fayetteville have memories for you at that time?
A  Very bad ones.
Q  Did Mr. Kassab ever give up on the idea of going through Fayetteville and Fort Bragg on his personal search?
A  Never to me.
Q  How did you decide finally to handle his attitude and his wishes as to how the investiga- tion should proceed?
A  Well, I told him some things that weren't true.
Q  When did that happen?
A  I don't specifically recall.  It started like just before I got out of the Army.  In late Novem- ber as we were starting to meet with these Congressmen and received phone calls from peo- ple who wanted to help and all of whom had tips and leads, I told him that I had made more progress in the investigation than, in fact, had occurred.
Q  How did you tell him that?  Did you call him or write him?
A  I believe both.
Q  Were you talking to him very frequently at that point?
A  Almost daily.
Q  You were in North Carolina and he was in New York?
A  That is right.
Q  Who was calling who?
A  Both.  We would call each other.
Q  What did you finally ultimately decide to tell him about the investigation--what were you doing in the investigation or to find the assailants of your family and the person who had at- tacked you?
A  I told him that I had found one of the assailants.
Q  Did you tell him anything that you had done with that person?
A  Yes.
Q  Please tell us the whole story.
A  I told him--I believe we used a Special Forces term currently in use at that time--that he had been "terminated with prejudice."
Q  With extreme prejudice?
A  With extreme prejudice.
Q  Had that term gotten some currency in the newspapers?
A  Yes; it had.
Q  Did you explain to him in somewhat more detail what that meant or what you were saying to him by that?
A  We talked about it many times--Mildred, Freddie, and myself; other people.
Q  What did you tell them it meant?  What was actually communicated to them?  What did you tell them it meant when you say you took care of somebody with extreme prejudice?
A  That he had been killed.
Q  Did they ask you about it--ask for details and want to know when, where, how?
A  Yes.
Q  What did you tell them?
A  Basically, nothing--just that it happened and I didn't want to talk about it.
Q  Did that seem to satisfy either Mildred or Alfred Kassab that it had happened and that you didn't want to talk about it?
A  No.  I thought it would which is why I told them that, but it did not.  It seemed to in- crease the need for more vengeance, more searches, more hunts.
Q  Did Mr. and Mrs. Kassab indicate whether they approved or disapproved of this story?
A  They approved highly.
Q  Beg your pardon?
A  They approved highly.  Mrs. Kassab wanted to know if he screamed.
Q  When did you finally tell the Kassabs that it had not happened and that it was not true that you had gotten rid of somebody with extreme prejudice and they had not screamed?
A  I wrote them a letter.  I don't remember when it was.  I wrote them a letter when I was in
California and said the whole thing was crazy and I had not done that.
Q  How did you feel about the whole episode, Dr. MacDonald?
A  Sick.
Q  What do you mean when you say "sick"--sick about what?
A  It was a lie of incredible proportions that I should have never told them, and I was doing it to try to give myself some space to rebuild my own life and to keep Freddie and Mildred off my back.  I mean, in retrospect, I can't imagine that I even did it.  I was totally ashamed.  It was just totally inappropriate and a wrong thing to do and I told them that.

THE COURT: Now, we will take our afternoon recess.  We will come back at 4:00 o'clock. Don't talk about the case.

(The proceeding was recessed at 3:44 p.m., to reconvene at 4:00 p.m., this same day.)

F U R T H E R  P R O C E E D I N G S  4:00 p.m.

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

(Whereupon, DR. JEFFREY ROBERT MhCDONALD, 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  (resumed)

BY MR. SEGALi
Q  Dr. MacDonald, during those months--the early months of 1971--did you make some deci- sion as to where you were going to reside and practice medicine in the future?
A  In the early months of 1971, it was still unclear.  I was unsettled as to what I was going to do.  It wasn't until about probably April or May--I really don't remember which--that I went out to California to visit Dr. Hughes.
Q  And who was Dr. Hughes?
A  He was a Green Beret physician who had been director of the emergency department at Cape Fear Valley as a moonlighter while he was still in the Green Berets, and he was out in California when I got discharged from the Army December 5th, and he had fairly frequently from late November of 1970 until April of 1971 asked me to come out to California to be his partner.
Q  Had you ever seriously considered that prior to the time that Dr. Hughes started talking to you?
A  No.
Q  When he first raised the matter or the suggestion that you might practice with him in Cali- fornia, did you like the idea?  Did it strike you as the right thing to do at that time?
A  I don't think initially.  I don't think in November and December of 1970.  I don't think it was until probably late February of 1971 that I realized that I was more depressed than I realized and that I was going to have to leave the east coast.
Q  Well, tell us about that.  What is this awareness of your depression?  What made you aware of it?  What brought it to your realization that you were going to have to do something a little more drastic in your life?
A  Well, the pressure with Freddie and Mildred kept intensifying and it unfortunately was coin- ciding with February 17th again which every year is a bad time, and Jerry--I don't think-- Jerry Hughes--Dr. Hughes--without meaning to, contacted me during that time and said, "Why don't you come on out?"  And I think that was the first time when I really thought to myself that maybe it would be better if I didn't go on to Yale and got away from the east coast and got away from Freddie and Mildred.
Q  What did you do to follow up on that?  How did you arrive at a decision to go to California at that time?
A  Nothing for about a month or two.  I just worked harder in New York, trying to find some peace, and it wasn't working, and I eventually went out to California for like a week in, I would guess, May to see Jerry and to take a break before Yale but also looking at what he had to offer.
Q  And you visited Dr. Hughes in Southern California?
A  That's right.
Q  And did you ultimately make a decision as to what you wanted to do with your life at that juncture?
A  Well, I made the decision that I was going to join him at least for a year at that time to try to clear my head a little bit.
Q  And what were the key factors that helped you make that decision or brought the decision about?
A  Distance from Freddie, a new environment, not so many people maybe worried about my welfare, my emotional make-up and constantly (unreadable)ther--you know--trying to sup- port me or to get me to do something involved in the case like public appearances or to write a book or whatever.  And I just--it was--once I arrived in California, I had this tremendous sense of relief that if I took the position, it was the best thing for me at that time.
Q  Did you communicate that decision to relocate in California to the Kassabs and to other members of your family?
A  Yes.
Q  Tell us about that, please.
A  Well, I told my mother first.  I took her out to dinner, as she testified, and we had--what I
thought was going to be a very difficult evening, in fact, it wasn't difficult at all.  She was very graceful about it.  I sort of felt like I was leaving her a little bit alone also, and she said, "Absolutely not," that it was what I needed at that time, and if I came back later, fine, and if I didn't, we'd still be in touch.
   And that relieved my mind and then sometime thereafter like in talking in terms of a week, I called her and said, "How would you like to go to dinner with Mildred and Freddie?"  And she very grudgingly said that she would do it---
Q  (Interposing) Who arranged that dinner?  What was the purpose of it?
A  I believe that I had called Freddie and Mildred and said I wanted to talk to them.  They may have called me and said--you know--"Will you come out to dinner this weekend?"  And I said, "Sure, because I have to talk to you about something anyway."
Q  And who was at that dinner?
A  Mildred and Freddie, my mother, Helen Fell, and myself.
Q  Is your recollection of what was said at that dinner pretty much the same as Mrs. Fell's?
A  Yes.
Q  And do you recall the same as she did as to how the dinner ended--what Mrs. Kassab said?
A  Yes.
Q  What did you feel?  What was your reaction when she said that you would be sorry if you moved away?
A  It was a continuation of a feeling that had been developing for some time that they were handling this incredible tragedy very differently than I was.  I couldn't understand their way of handling it, and they clearly couldn't understand my way of handling it, and we were not going to be able to ever communicate on it.
   And it was at that moment that it was most clear to me that I had made the right decision to go to California.
Q  Did you take her seriously when she said that you would be sorry for that decision?
A  I thought it was an anguished mother's comment at that time and did not pay it as much attention as I perhaps should have.
Q  Now, in regard to your mother and the Kassabs, had you and Colette MacDonald ever thought about what might happen to your children if something happened to both of you in an accident or a crash of some sort?
A  Yes.
Q  Had you and Colette made a will in that regard?
A  Yes, we had.
(Pause.)
Q Dr. MacDonald, let me show you Defendant Exhibits D-102 and 102(a) which is an enlarge- ment and partial extract.  Do you know what D-102 is, please?  If you do, tell the jury.
A  This in a will that Colette and I drew up after the birth of Kim in Princeton, and it was drawn up in Patchogue on a vacation when we were in Patchogue at my mom's house.
Q  And the date that appears on the last page of the will is what--March the 12th of 1966, is that right?
A  Yes, that's right--12 March.
Q  In that will, in paragraph 6, did you and Colette make a decision as to what your choice would be as to how the children should be handled or dealt with if anything happened to both of you?
A  Yes, we did.
Q  Would you read it, please?
A  "We hereby nominate, constitute, and appoint said Dorothy M. MacDonald of Patchogue, New York, to be the guardian of the person and property of our child or children who is an infant or who are infants at the time of our death by common disaster or upon the death of the survivor."
Q  Now, is that the only provision in the will that relates to the question of the children?
A  Yes.
Q  Did you and Colette ever change your minds as to whether the children should be placed with Mrs. MacDonald as opposed to Mr. and Mrs. Kassab if something happened to both of you?
A  No, we did not.
Q  Was that Colette's choice as well as yours or did you influence her largely to choose your mother as the guardian?
A  It was a mutually agreed upon decision.
Q  How did you feel when you finally told the Kassabs that you were going to go to Califor- nia?
A  Well, I felt a sense of relief.  I felt that I had made a decision and I felt better as soon as it was communicated despite the negative feelings at the actual meeting.
Q  Now soon after that meeting did you leave for California?
A  It was very shortly thereafter.  I don't know in terms of days.
Q  Now, during that same period of time from January of 1971, to June or July of 1971, was anything happening in regard to the various charges that you and Mr. Kassab had made in regard to the Army's handling of the investigation against you?
A  Yes.
Q  Tell us about that, please.
A  Well---

MR. MURTAGH: (Interposing) Your Honor, we would OBJECT unless he has personal know- ledge.

MR. SEGAL: Yes, it involves personal knowledge, Your Honor.

THE COURT: Proceed.

BY MR. SEGAL:
Q  Please, Dr. MacDonald.
A  We were requested by the CID--yourself and myself--to voluntarily give new statements in February of 1971.
Q  Do you recall meeting with the CID agents at that time?
A  You suggested that we did.  I suggested that we didn't, and we did meet.
Q  Where did that take place?
A  The first meeting was in a hotel in New York City, and the second meeting was in the Philadelphia Bar Law Library.
Q  At that time, Lieutenant Colonel Jack Pruett, a CID agent, was present?
A  That is correct.
Q  And a warrant officer by the name of Kearns also present?
A  Peter Kearns.
Q  At the beginning of those discussions, did they indicate to you--well, how did they start off the formal part of the discussions about the crime--what happened on February 17th?
A  My best recollection is that we actually started the conversation by asking them what was their mission.  They replied that the mission of the CID was to re-investigate the original in- vestigation.  I expressed considerable dismay that the CID would be investigating itself.  I felt that the Justice Department should have been investigating the CID and it was our surprise to be greeted by CID agents in the hotel room in New York City and not Justice Department offices.
Q  When there was actually a meeting in the Philadelphia Bar Association Law Library, was there an official court reporter there?
A  There was.
Q  And who arranged for that?
A  Yourself.
Q  When we got to the point of talking about the case, did Colonel Pruett say anything about whether you should be advised of constitutional rights of any sort?
A  Yes; he did.
Q  And at that time, did you decide, even though you had a right to remain silent and appa- rently these statements could be used against you in evidence, did you make a decision at that time as to whether to talk to them and make a statement?
A  We elected to talk to the CID again.
Q  At any time thereafter--did you learn any time thereafter that the CID was not, in fact, re-investigating itself but had some other objective in mind in 1971?
A  Certainly.
Q  Tell us about that.
A  My friends began calling me and telling me that they were asked the identical questions almost word for word an they were asked on the original investigation, i.e., "Does Jeff take drugs?  Is Jeff an alcoholic," extramarital sex I may or may not have had.  There were no questions about other potential assailants being asked of any of my associates or friends or persons who constantly would be calling us in the early months of 1971.  We clearly under- stood at that point that the CID was not, in fact, re-investigating the crimes.  They were re-investigating their alleged investigation in 1970, but there was no new information being de-veloped.  It was an actual re-play.
Q  Now, when did you arrive in California?
A  July 5th, 1971.
Q  Where did you start working at that time?
A  St. Mary Hospital in Long Beach.
Q  Where you still are employed today?
A  That is correct.
Q  What kind of life did you build for yourself between July of 1971, and, say, January of 1975?  Just tell us about the kind of life you created for yourself up until that juncture.
A  Well, I was working very hard.  I developed a good position at the hospital.  I was active in community affairs.  Our group was becoming prominent in the area in emergency medicine. We were teaching at USC and later UCLA.  I bought a house on the water--not a house--but a small two-bedroom condo which I still--that in where I live now.  I bought a boat and lived on the water--working, I think, fairly hard.
Q  How many hours a week do you ordinarily work?
A  60--70 or 80.
Q  Why do you choose to work that many hours, Dr. MacDonald?
A  It just seemed easier.  Work was good for me.
Q  Easier than what?
A  Easier than sitting and thinking.
Q  About what?
A  My family.
Q  Tell us about some of the things in the community that you became involved with at that point?
A  Oh, Dr. Hughes developed the first EMT course for the Long Beach area--Emergency Medi- cal Technician course.  He had been instrumental in re-designing the Green Beret medical courses at Fort Bragg in the goat lab and the dog lab.  We developed that for ambulance attendants in the Long Reach area.
   We then became instrumental in developing a full-fledged paramedic system which I now run which services 360,000 people.  It is about 1,800 runs a month.  These are field parame- dics who do advanced medicine.  They don't just scoot the patients and run.  We manage that from St. Mary Emergency Department.  There are 55 paramedics.
Q  Did you become involved with the Heart Association while you were in California at that time?
A  Yes.  We began teaching cardio-pulmonary resuscitations
Q  Did you become formally yourself active in the association?
A  Yes.
Q  Did you hold positions in it?
A  Yes.  I was CPR Chairman at first and later became President of the Long Beach Associa- tion and a member of the Executive Coumittee of California Heart.
Q  You became President of the Long Beach Heart Association?
A  That is right.
Q  What about your social life at that time between 1971, and the beginning of '75?  Were you going out and doing anything socially?
A  Very active.
Q  Were there any special women in your life during that period of time?
A  Yes.
Q  One or more than one?
A  There was one from 1971 until about 1974, and the grand jury destroyed that one.  Then,
another one from 1974 to '77.
Q  At any time, did you actually live with any woman?
A  Not seven days a week.
Q  Sometimes?
A  Sometimes.
Q  The woman you referred to whom you know from '71 to '74, did she have any children?
A  Two.
Q  From a prior marriage?
A  That is right.
Q  Did you ever contemplate marrying her, Dr. MacDonald?
A  Yes.
Q  Did you come to a decision not to do that?
A  That is right.
Q  Please tell us what affected your decision?
A  Well, a lot of things affected the decision.  The FBI arrested me and put me in jail.  I was under indictment for triple homicide of my family and it didn't seem appropriate, and I had some personal feelings that it just wasn't right, you know, at that time for that reason and for some other reasons.
Q  Did the fact that this woman had some children play any part in your decision not to seri- ously consider getting married?
A  I think so.  I had some difficulty not comparing.
Q  Her children with your own children?
A  Right.
Q  It happened anyway in your own mind, though, didn't it?
A  That is right.
Q  Was it kind of painful to make comparisons between her children and your own dead chil- dren?
A  I did not mean to make comparisons.  I felt bad to be making the comparisons, and I just felt it wasn't going to work.
Q  Let's go back a little bit in terms of relationships with women.  In 1969, prior to February 17th, 1970, had you ever had any sexual contact with any other woman besides your wife?
A  Yes.
Q  Did anything happen in December of 1969?
A  It was probably December.
Q  All right, let's assume the date for a minute, Dr. MacDonald.  Tell us about that briefly?
A  If it was the same weekend I am thinking of, there was a Special Forces jump in San Anto- nio, Texas.
Q  You mean an airborne jump?
A  That's right, of the medics going through school down at Fort Sam.  This was a recurring phenomenon--this jump.  It was sort of an infamous jump in Special Forces.
   It was a party weekend, and another physician and myself were asked to go down as, you know, the medical team to treat anyone who was injured.  We got to jump also, but we were the treating team.  So, another physician and myself went to Fort Sam on a military aircraft and spent the weekend.
Q  During that weekend, did you meet a woman you spent any time with or had any sexual relations with?
A  We spent some time.  We did not have any sexual relations.
Q  Did you ever have contact with her again?
A  I believe she wrote a letter that my sergeant gave me at the Special Forces office in the Sixth.  We had just moved to the Sixth Office in the middle of December and I read the letter and threw it away and never heard from her again.
Q  Did you have any other sexual experience or relationship with any woman other than your wife in 1969, prior to February 17, 1970?
A  Yes.
Q  About when did such an episode happen?
A  When I was at basic training for five weeks in Fort Sam Houston, Texas, in San Antonio.
Q  That would be what, June of 1969?
A  July.
Q  July of 1969.  Tell us about that, please?
A  There were 400 doctors, dentists, and veterinarians undergoing basic training together. Most of us were housed in motels off-post.  There were airline stewardesses staying at the same motel, and there were fairly frequent parties.
Q  Did you meet someone at one of those parties?
A  Yes.
Q  Did you spend any time with that woman alone?
A  Yes.
Q  Intimately?
A  Yes.
Q  How many times were you with her?
A  I don't recall.
Q  Over what period of times?
A  A couple of days.
Q  Did you thereafter see her or have any relationship with her thereafter?
A  Never.
Q  Were you dissatisfied with your wife and the relationship with your wife, Dr. MacDonald?
A  No.
Q  What was the significance of those episodes in your life and your marriage?
A  It is nothing that I am proud of.  It was--at the time, you know, I was not attaching great
significance to it.  I was away from home with a group of soldiers and it was activity that the majority of the people that I was with did not feel was any major sin.
Q  How about yourself?  How do you feel about it?
A  Well, I am not proud of it.  It occurred.  I willingly did it.  No one forced me into a motel room.  It was not a high point in my life; it was not of any major significance to me, and I regretted it very much.
Q  Did you ever tell Colette?
A  Tell Colette?
Q  Yes.
A  No.
Q  To the best of your knowledge, was she ever aware of such an episode?
A  She was not.
Q  In 1975, Dr. MacDonald, in January, that is when the indictment for this case came down; is that right?
A  That is right.
Q  What, if any, effect did that have on your life?
A  Well, it shattered it again.  I mean, I was arrested and put in jail for triple homicide.
Q  Between 1971 and 1975 and the indictment, had you given any thought to your family, your wife and children?
A  Yes.
Q  Once in a while?
A  Almost constantly.  It was unusual not to have a remembrance of my wife and children.
Q  How did you handle those feelings that kept coming back?
A  I guess the best way to describe my way of handling the feelings would be compartmenta- lizing them and I would let out little bits and pieces, usually by myself, usually a bad night at home.
Q  Alone?
A  Usually.
Q  What was a bad night?  What made it a bad night?  What happened?  What went on when it was bad?
A  Well, it could be a lot of things.  It could be a birthday, or it could be February 17, or a Sunday morning.
Q  What significance did just a Sunday morning have in terms of recalling your wife and your children?
A  It was just one of our times that we had together.
Q  How would you express your emotions?  How would you express your feelings at these times you were alone and these thoughts came to you?
A  By myself?
Q  Yes?
A  Oh, I might cry.  I usually played some records; think; then I would go run.
Q  What was the role of your running?  How did that involve itself?  What did it mean to you?
A  It just relieved a lot of my tension and it allowed me no other thought process except running.  That sort of eased my mind--it still does.
Q  When did you start running seriously?
A  I have always run, but seriously was probably when the Supreme Court overturned the decision.
Q  How about back then?  Did you begin running regularly between 1971 and 1975?
A  Yes.  At that time, it was three to five miles.  It wasn't much running.
Q  Was it just for exercise or just to deal with feelings?
A  No, I always tried to stay in shape, and I always feel good after I work out.  It was some- thing I had always done.  I did it all through high school, college, married years.  I think it evolved into a--specifically right now--more needed release.  It is one of my methods of coping--just tiring myself out through either work or playing.  I find running relaxing.
Q  You say "coping," you mean coping with which feelings?
A  Feelings about my family, anger, feelings about Government prosecutors.
Q  When the indictment came down--let's back up a minute.  August of 1974, that was when the grand jury process began?
A  That is right.
Q  You were called as the very first witness in front of the grand jury then, were you not?
A  That is right.
Q  Did the Government prosecutor at that time tell you that you had a right not to testify, that you were a suspect at that point?
A  Yes, he did.
Q  What was the decision you made as to whether or not you should speak to the grand jury and testify at the grand jury?
A  Well, he also told me that other people were suspects and we still hold out that in fact that was true.
Q  In the hope that that might be true?
A  Right.  So we made--I made the decision--for the first time, you did not urge me to do it. I made the decision that I would testify in front of the grand jury.
Q  How long did you spend testifying before the grand jury about February 17, and all the other aspects of your life?
A  Five days in August and one day in January.
Q  January 1975?
A  That's right.
Q  During the grand jury proceedings, were you asked by the prosecutor whether you would again agree to give hair samples from your body, from all places of your body?
A  Yes.
Q  And what decision did you make in that regard?
A  Well, I told them my feelings about the first collection of hair samples.  I then asked for a recess and asked your opinion hoping you would say "no."
   You said we should always cooperate and I gave them hair samples again.  I believe it was 12 this time.
Q  That was Agent Murray of the FBI who cut those here in this very building?
A  That is correct.
Q  Was it a decision you made voluntarily, having talked over with me and thought about what your own attitude would be toward the re-investigation?
A  That's right.
Q  When the indictment came down from that grand jury in January in 1975, was there pub- licity attendant to that and to your arrest?
A  I would say massive publicity.
Q  How did it affect the life you had been rebuilding in California?
A  Well, it essentially shattered it again.
Q  You told us about you feel it affected the relationship you had with the woman you de- scribed before; what other ways did it affect your life?
A  Oh, it affected what happened with patients in the emergency department, and how peo- ple viewed me; and the prosecutor came to the hospital and tried to get me fired, and I had to meet with the administration.
   And there were a lot of stresses and strains now, and I had to retain attorneys again.  I was now back into my defense again.  It was a repetition of what had happened five years earlier.
Q  Can you tell us what happened in the emergency room; you say some problems with pa- tients occurred after you had been charged and indicted?
A  Well, I--again--being in the newspapers and with pictures and names--you know--a signi- ficant number of my patients now who--you know, know who Dr. MacDonald was, where I had spent 1973 and '74 in a reasonable--you know--reasonably peaceful fashion as far as treating patients.
   Most of the patients, you know, would say nice things.  There were occasional unpleasant episodes, and I usually asked another physician to treat a patient who did not wish to be treated by me.
Q  Well, how would this come up that some patients would express the idea that they didn't want you to treat them?
A  I only recall it happening, you know, on two different episodes.
Q  All right; please share one of them with us.
A  You know, he--this patient called me a--you know--a child killer.
Q  "Child killer"?
A  So, I felt it wasn't, you know, appropriate for me to be treating him.
Q  Was this a man or a woman that said this?
A  A man.
Q  What was your reaction when the man said that to you?
A  I felt it was--the most professional thing to do was to ask another physician to treat him, so I left the room and---
Q  (Interposing) No, I'm not asking you that.  How did you feel?
A  Well, I was crushed.  I mean, how would you feel?  I didn't know what to say or do.  I broke out into a sweat, and my nurses were aghast.  They didn't know what to say or do, and we left the room; and I sent in another physician.
Q  Dr. MacDonald, I want to show you the four instruments that we have now come to hear so much about during this trial: the club, the bent-bladed knife, the straight knife, the ice pick.  I want you to look at those weapons, please, sir.  I want you to now hear me and re- spond, if you will, to what the indictment has said; and I ask you to tell me whether the indictment and the charge contained therein is true.
Q  In the First Count, it is charged: "That on or about the 17th day of February, 1970, at Fort Bragg, North Carolina, upon lands acquired for the use of the United States and under the exclusive jurisdiction thereof, and within the Eastern District of North Carolina, JEFFREY R. MacDONALD, with premeditation and malice aforethought, murdered Colette S. MacDonald by means of striking her with a club and stabbing her, in violation of the provisions of Title 18, United States Code, Section llll."  Did you stab your wife; did you club your wife?
A  I did not.
Q  With those or any other weapons?
A  I never struck Colette.
Q  Dr. MacDonald, I want to read to you the Second Count of the same indictment, and again ask you the same question.  In that Count it is charged: "That on or about the 17th day or February, 1970, at Fort Bragg, North Carolina, upon lands acquired for the use of the United States and under the exclusive jurisdiction thereof, and within the Eastern District of North Carolina, JEFFREY R. MacDONALD, with premeditation and malice aforethought, murdered Kimberly K. MacDonald, by means of striking her with a club and stabbing her, in violation of the provisions of Title 18, United States Code, Section 1111."  Is that true?
A  It is not true.  I never harmed Kimberly.
Q  I will read you, Dr. MacDonald, the Third Count of the indictment, and ask you to respond again.  "That on or about the 17th day of February, 1970, at Fort Bragg, North Carolina, upon
lands acquired for the use of the United States and under the exclusive jurisdiction thereof, and within the Eastern District of North Carolina, JEFFREY R. MacDONALD, with premeditation and malice aforethought, murdered Kristen J. MacDonald by means of stabbing her, in viola- tion of the provisions of Title 18, United States Code, Section 1111."  Is that true, Dr. Mac- Donald?
A  It is not true.
Q  Finally, Dr. MacDonald, I would like for you to share with us all a letter addressed to you dated August the 25th, 1969, from your wife in Patchogue, Long Island to you at Columbus, Georgia.  If you would be good enough to read that to us, sir.

MR. BLACKBURN: Mr. Segal?

MR. SEGAL: I'm sorry.

(Mr. Segal tenders exhibit to Counsel.)

BY MR. SEGAL:
Q  If you would, Dr. McDonald, will you please read that letter from your wife?
A  "Sunday night.  Darling Jeff, what a difference a day makes - or even a few minutes - es- pecially when you take me from the..."
Q  The nadir of despair.
A  "...nadir of despair and return me to that happy full of love and life feeling.  Thank you sweetheart, you really know how to handle me.
   "In case your (sic) getting ready to jump out of an airplane and need a little material for pleasant daydreaming, here are a few of my favorites: (1) Remember the night you and Ernie came to Skidmore in the snow for 'Happy Pappy Weekend' and stayed in the Rip Van Dam, the
fashionable watering place of the New York jet set.  (2) The night we came home from Paul and Kathy's and we decided to have something to eat in the city and we went to Manana after walking around a bit.  This is one of my favorites because I think we were definitely on the same wave length that night.  (3) When you were in the Infirmary at Princeton because you had dropped the weights on your chest, you wrote me an abstract story entitled 'the cool guy and the warm girl.'  Do you remember that at all?  I do, It was beautiful.  (4) New Year's Eve this year - what could top that for a feeling of togetherness!  (5) Cutting up onions and peppers together and planning for our giant Champagne Brunch and then, of course, the brunch itself.  (6) The first time you came to Skidmore and the picnic we had in the woods.  Four kisses.  Colette."

MR. SEGAL: You may cross-examine.

THE COURT: Let me see Counsel at the bench a moment, please.

B E N C H  C O N F E R E N C E

MR. BLACKBURN: Your Honor, I would propose if you have no objection, since it is this late in the afternoon, to start in the morning.

THE COURT: I ain"t going to do it on that account but what I want to know is this: I assume that there will be come questions on cross-examination.

MR. BLACKBURN: Yes, sir.

THE COURT: What is your estimate as to the length of time?

MR. BLACKBURN: Half a day.  It will not be as long as the direct.  It may be just two hours or so.  I don't know.

THE COURT: All right, the next question: do you have other witnesses?

MR. SEGAL: At this time, Your Honor?

THE COURT: Any time.

MR. SEGAL: Yes, we may have a couple, but they will be brief.

THE COURT: Will they be here tomorrow?

MR. SMITH: We are trying to arrange Dr. Neal.  Dr. Neal is one of the witnesses we were try- ing to get.

MR. SEGAL: We have the U.S. Marshal looking for him.

THE COURT: Do you think you can get him here tomorrow?

MR. SMITH: I have my doubts.

THE COURT: All right, you need not take this.

(Discussion off the record.)

(Bench conference terminated.)

THE COURT: Members of the jury, they indicate that the examination of this witness can be comfortably terminated tomorrow so in view of that and the lateness of the hour, we will not start the cross-examination of this witness this afternoon, but we will take our recess a little early and come back, unfortunately, a little later tomorrow than our usual Friday schedule.
   I was just telling the lawyers that twice a year I have this appointment with a dentist and in February when I scheduled this one tomorrow morning, I did not know that we would be here the entire month of August so I have to go there at 8:30 but I can be here at 9:30, so we will just come tomorrow at 9:30, but we will also try to hurry things along tomorrow so that we can get back on our Friday schedule.  We will let you retire now and the others re- main seated until this jury has retired.  We will reconvene tomorrow at 9:30.  Have a good night, a safe trip home and back.  See you then.

(Jury exits at 4:48 p.m.)

THE COURT: Recess the Court until tomorrow morning at 9:30.

(The proceeding was adjourned at 4:49 p.m., to reconvene at 9:30 a.m. on Friday, August 24, 1979.)


Note from Christina Masewicz: The original stenographer’s misspellings of “Graebner,” “Pendleshock,” “Pruette,” and “Chamberlin” were corrected to “Grebner,” “Pendlyshok,” “Pruett,” and “Chamberlain,” respectively, in this transcript.

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