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1979 JEFFREY MACDONALD CASE TRIAL TRANSCRIPT

August 24: Jeffrey MacDonald (cross-examination)

F U R T H E R  P R O C E E D I N G S  9:30 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 Friday, August 24, 1979, at Raleigh, North Caro- lina.

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

THE COURT:  Good morning, ladies and gentlemen.  All right; I believe you had a witness on the stand.  Let him come back, please.

(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:  You may cross-examine.  Proceed.


C R O S S - E X A M I N A T I O N  9:31 a.m.

BY MR. BLACKBURN:
Q  Dr. MacDonald, late yesterday afternoon, right as we were getting ready to adjourn, De-fense Counsel showed you four weapons--a club, two knives and an ice pick--and asked you whether or not you, of course, killed your family.  What I would like to do now is to hand you once again the club, which is Government Exhibit 306, and ask you to take a look at it, sir, and tell us whether or not you know whether or not that club came from your house?
A  I do not know.
Q  Could it have come from your house?
A  It is conceivable.
Q  When was the first time that you can recall that you saw that club?
A  I think Mr. Shaw showed it to me on April 6th.
Q  At the interview?
A  That's right.
Q  Now, earlier in the trial in the Government's case, there was testimony from Government witnesses--specifically Mr. Hilyard Browning (sic) who stated, as I recall, that this club came from another piece of wood in your house--that was recovered from your house--that was a bed slat in Kimberly's bed.  Do you recall that testimony?
A  He discussed that, yes; he did not use the words that you just used.  But he discussed that.
Q  Do you recall his testimony that the growth rings were identical?
A  That's right.
Q  And do you further recall his testimony that the grain of the wood, so to speak, was the same?
A  That is correct.
Q  And that the paint--the paint right here--was identical in composition to the paint on the bed slat.  Do you recall that testimony?
A  Yes; I do.
Q  And that he testified, as I recall it, that this piece of wood was at one time, in his opinion, a part of that bed slat?  Do you recall that testimony?
A  I think he said that; yes.
Q  Dr. MacDonald, I want to ask you this question: isn't it true that this piece of wood--the club--was once a part of Kimberly's bed slat--excuse me--a part of the piece of wood that was used as Kimberly's bed slat, and that the paint on this piece of wood came from drop- pings where something was resting on it as furniture in Kimberly's room was being painted?
A  I have no specific knowledge of that.
Q  In other words, am I correct in assuming that you would say that prior to April 6th, 1970, you have never seen this piece of wood--

MR. SEGAL:  (Interposing)  That is not what he said.  That is OBJECTED to.  It is an unfair comment to say that.

THE COURT:  Well, the question was, was he correct in assuming it.  I will let you ask the question.

BY MR. BLACKBURN:
Q  Do you want me to repeat it?
A  Please.
Q  Am I correct in assuming that prior to the 6th of April, 1970, that you had never seen this piece of wood before?
A  I have no specific recollection of seeing that particular piece of wood, but I would like to explain the answer.
Q  Yes, sir?
A  There was a lot of wood at the house.  There was wood in the well behind the house. There was wood in the shed that was locked behind the house.  There was wood in the little laundry room--the utility room--at back of the house.  I do not specifically recall that piece of wood.
Q  Was wood ever kept inside your house?
A  Not that I am aware of.
Q  Not in the utility room?
A  There may have been some back there.  I have no recollection of it.
Q  You did a lot of work on shelving; is that correct--in building shelves for the children?
A  That's right.
Q  For Kimberly and Kristen?
A  That's right.
Q  Now, when this would take place, did you always take the extra wood outside when you were through, or did you leave some of it perhaps in the closet or the utility room?
A  Oh, I am sure there was occasionally--the mess was left in the utility room.
Q  Now, with respect to the ice pick that was shown you late yesterday afternoon, do you recall the testimony of Mildred Kassab and Pamela Kalin, both of whom stated that they had at various times been in your kitchen and for various reasons had used an ice pick?  Do you recall that testimony?
A  Yes; I recall it.
Q  Now, I believe you have stated previously under oath on the 6th of April, 1970, and I think at the Article 32 proceedings, and I also believe at the grand jury proceedings in 1974, that your family did not own an ice pick; is that correct?
A  To the best of my knowledge.
Q  Well, let me ask you this question: am I correct, then, in assuming that to the best of your knowledge you never saw an ice pick at your house?
A  That is correct.
Q  You are not saying, I take it, that there could not have been an ice pick there?
A  That is correct.
Q  And you are not saying that this piece of wood could not have come from your house?
A  That is correct.
Q  Dr. MacDonald, in 1970, what was the condition of your eyes?
A  Of my eyes?
Q  Yes, sir.
A  They were fine.
Q  What I am getting at specifically is whether or not you wore glasses?
A  Yes, I did.
Q  Were they for reading, or what were they for?
A  They were not for reading.  I am near-sighted.
Q  You are near-sighted.  Did you wear contacts at all in 1970?
A  Yes.
Q  Did you interchange the glasses and the contacts?
A  Yes, I did.
Q  Now, if you can recall--I remember you testified yesterday that you went to Hamlet Hos- pital on the weekend prior to the 16th of February?
A  That is correct.
Q  Can you recall whether or not you wore glasses that Sunday?
A  I must have.
Q  Why do you say, "must have"?
A  Well, the CID told me that I picked up my contacts on Monday, at Dr. Pierce's office in downtown Fayetteville.
Q  So, you would have had to wear one or the other, is that correct?
A  Right.
Q  Now, on Monday, as I recall from your testimony yesterday, you did a variety of different things, including sports in the afternoon.  Did you wear the glasses on Monday?
A  I'm sure I did.
Q  Even after you picked up the contacts that morning?
A  That is correct.
Q  Do you recall the testimony of Mr. Bob Shaw and, I believe, Mr. Craig Chamberlain, who stated that they found the glasses in the living room on the floor, picked them up, found a spot of blood on the lens, took the blood off the lens, subsequently had that blood typed.
And I believe it was consistent with Type O blood.  Do you recall that testimony?
A  I don't recall the type, but I recall--I thought they had said a speck of blood, but there was some kind of--
Q  (Interposing)  You may have been correct.  It may have been a speck of blood.  Do you recall that they said Type O blood?
A  No.  I do not recall that.  They may have said that.
Q  When was the last time, if you can recall, that you took those glasses off your head?
A  It would have been when I went to bed, probably.
Q  Well, I know you said that you did some reading before you went to sleep?
A  Right.
Q  Would you have used your glasses then?
A  Sometimes I did; sometimes I didn't.  I don't recall whether I wore them at that time to read that book.
Q  Okay; but you recall that you probably had them on some time during that evening?
A  That is right.
Q  When you were assaulted by the intruders, were you wearing those glasses?
A  No.
Q  You had them off because you had been asleep?
A  That is right.
Q  Now, when you woke up and were involved in the struggle, and you were checking your family, did you at any time wear those glasses?
A  I don't believe so.
Q  Can you tell us how a speck of blood got on the lens of those glasses?
A  I have no idea.  If it is truly a speck of blood, it could have gotten there a lot of ways.
Q  With respect to some Valentine cards that were shown to you yesterday morning, I be- lieve from the children to you, you of course got those Valentines on Valentine's Day in 1970?
A  I'm sorry; I didn't hear you?
Q  I assume you got those cards on Valentine's Day of 1970?
A  I assume so, yes.
Q  Well, let me ask you this question: after you left Castle Drive on the morning of the 17th of February, 1970, to go to the hospital, how many times prior to the view of the crime scene a few weeks back, did you return to your apartment--and for what purpose did you return?
A  During the Article 32, I returned with Colonel Rock, with my attorneys and CID agents; and
I think I was allowed back one time to pick up some clothing and some books.
Q  Personal belongings?
A  Right; accompanied by, I believe, Mr. Shaw.
Q  That would have been 1970, I take it?
A  That's right.
Q  Well, that particular visit with Mr. Shaw when you went there, did you have an occasion to go through the house and see what it was you wanted to take with you?
A  No.
Q  Why not?
A  Mr. Shaw was very protective about the house.  He didn't allow me to touch anything.  He watched each piece of clothing that I took out of the closet, and which books I took from my medical library.
Q  Well, did you take all of your books?
A  No.
Q  Did you take all of your clothes?
A  No.
Q  I recall seeing a photograph of the crime scene after the bodies were removed, and in the dining room area there were some cards on a buffet table.  Do you recall that particular pho- tograph?
A  No.
Q  When you went back with Mr. Shaw in 1970, did you have an occasion to see those Val- entine cards at all?
A  No.
Q  When was the first time you remembered that they were there?  Was that a few weeks ago at the crime scene?
A  I thought there was some discussion about them in the Article 32, but it is unclear.
Q  Well, let me ask you this question: if there was some discussion about the cards at the Article 32, then am I correct in assuming that you were aware that there were in fact Valen- tine cards at the house?
A  We were aware that there were cards there, right.
Q  Did you ever ask to get them?
A  Oh, many times.
Q  They were refused to you?
A  Of course.
Q  By the CID?
A  That's right.
Q  They did not want to give you your Valentine cards?
A  Or my records, or my books, or my personal belongings, or letters to and from Colette.
Q  Now, did there come a time when you sold any of the items which you had from the house--any of your personal belongings?
A  I was not aware of that.  It apparently occurred.
Q  Well, when you say you were not aware of it but it may have occurred, can you be more specific as to what you mean?
A  Yeah; I since had a conversation with my mom who said that there was a yard sale up in Patchogue where some of the belongings from the house were sold, after the Kassabs had taken some of their belongings from it.
Q  Now, I remember early in your testimony yesterday you were talking about Colette's preg- nancy--the third one; and that I believe you said after that pregnancy you all were probably not going to have any more children because of the difficulty that she had with her second birth, is that correct?
A  The second birth was the most difficult.
Q  Both of them were Caesarian, is that right?
A  That's right.
Q  Now, I believe you said yesterday that you had already gotten a doctor for Colette, is that correct?
A  That's right.
Q  And that was to be a military doctor?
A  No.
Q  To be a civilian doctor?
A  That's correct.
Q  Did Colette know about that?
A  Yes.
Q  Well, did you hear the testimony of Mildred Kassab who said that on the 15th of February, 1970, she and Colette talked by telephone, and that Colette was concerned because she did not yet have a doctor?
A  The kindest thing that I can say is that that is misinformation.  It is not correct.
Q  So, you are saying that Mrs. Kassab mis-spoke herself on that subject?
A  Yes.
Q  I believe it is true, though, is it not, that--as I believe you testified yesterday--that when the birth of the child would come that Mrs. Kassab was planning to be present?
A  That's right.
Q  And stay a few days, I suppose?
A  That's right.
Q  When was the baby due?
A  July--May, June, or July, we thought.  We really didn't know.
Q  Now, you testified yesterday that--I think--that you and Sherridale Morgan had discussed a proposed boxing trip to Russia?
A  That's right.
Q  And that you were going to be the team physician?
A  That's correct.
Q  And that would be a 30-day trip in March of 1970?
A  Right.
Q  Are you sure?  Are you positive?
A  Of what?
Q  That Mr. Morgan and you did, in fact, discuss such a boxing trip?
A  I discussed the boxing trip.  I thought it was with Mr. Morgan; yes.
Q  He was the boxing coach?
A  Right.
Q  Are you positive that you were planning to go to Russia with the boxing team for 30 days in March of 1970?
A  No.
Q  Let me ask you this question: are you positive that it was being discussed or considered that you might go--
A  (Interposing)  Yes.
Q  --with the boxing team?
A  That's what occurred.  It was being discussed.
Q  Who did you discuss it with, if you can recall?
A  Captain Heestan (phonetic), my immediate superior at the Group Surgeon's office, and Co- lette, and I don't know yet if we had discussed it with Colonel Kane.  I think we had.  I'm not sure.  And Mr. Morgan--Sergeant Morgan.
Q  Now, I think you said yesterday that in your discussions with Colette she thought it was okay.  She did not object to your going.
A  That's correct.
Q  Didn't it bother her that you were going to be gone for 30 days while she was--I guess-- would be seven months pregnant--six months pregnant?
A  I'm sure it did.  We had discussed it.  It didn't seem like that traumatic an event for me to be gone for that amount of time not really close to delivery date.
Q  Well, traumatic to who--you or Colette or both?
A  To both of us.
Q  Well, do you recall the testimony of Mrs. Elizabeth Krystia Ramage and Mrs. Kassab also that Colette expressed some concern about the fact that you might be away for a long peri- od of time while she was pregnant?
A  I don't remember Mrs. Elizabeth Krystia (sic) saying that.  She may have said it, but I don't recall sitting here and hearing that testimony.  I thought that she stated that we had a nice relationship and Colette was proud of me and--
Q  (Interposing)  I'm not disputing that point that that's what she said.  I think that is cor-rect and this is what she said.  What I am saying is: do you recall her testimony that at one time in their visits with each other, going to or from class or at class, Colette was concerned about your possible absence at some time?
A  I am not struck with any remembrances of that testimony.  It may have occurred.
Q  What about Mrs. Kassab; do you recall that?
A  Yes.
Q  Do you recall her saying that?
A  Vaguely.
Q  Now, as I recall, you stated and some of your character witnesses also stated, as I recall, and your mother that this was a time of happiness for you all, that you had more money than you had had previously; that's correct, I would assume?
A  That's right.
Q  Now, you were moonlighting; were you not?
A  What's right.
Q  Was the purpose of that to get more money to try to make additional funds?
A  Sure.
Q  How often would you get away on weekends during this time that you were moonlighting?
A  You mean moonlighting?
Q  Yes.
A  Once a month.  The moonlighting could be a shift in the middle of the week--7:00 p.m. to 7:00 a.m. type shift.
Q  What was Colette's attitude toward your being away for that sort of thing?
A  It was fine.  I was away much less than I had ever been before.
Q  So, on balance, it was a better thing?
A  Very positive.
Q  Now, I believe you stated yesterday that you--or maybe Major Williams stated on his tes- timony--that the day before--maybe the day of--the 16th of February, 1970--that you had met with a drug addict that you were treating; do you recall that?
A  Yes.
Q  Was that a man by the name of David Badger?
A  I believe it was.
Q  Did he threaten you at any time?
A  I think so.  I don't recall the incident as clearly as I'd like to be able to now, but I believe that he did.  Yeah, I think he kicked the chair over in the office or something.
Q  Did he hit you?
A  No, no.
Q  He did not say, "I'm going to kill you"; did he?
A  I don't think he did, no.
Q  I take it from that--did you say anything to him?
A  Did I say anything to him?  No.
Q  It was just a minor altercation; is that correct?
A  That's correct.
Q  Now, did you recognize David Badger an one of those four people in your house that night?
A  No, I did not.
Q  On the 16th--that night--you testified yesterday, as I recall, that Colette was in bed asleep, Kristen was crying, and you went to the refrigerator, which was not unusual, got her bottle of milk, and took it to her; is that correct?
A  I don't believe I said milk, but I got her bottle.
Q  Well, let me ask you this: what did you get her a bottle of?
A  Probably milk.
Q  Do you recall whether it was chocolate milk?
A  It may have been.
Q  All right, about what time was it when you took the bottle to Kristen, if you can recall?
A  It was--it would have to be between 12:00 and 2:00.
Q  And was it closer towards 12:00?
A  I don't recall.
Q  You don't recall.  Now, after that, you went back and did what?  You did the dishes and did some reading?
A  That's right.
Q  And listened to some records?
A  Listened to the FM.
Q  Did you watch any more television?
A  The end of "Johnny Carson."
Q  Which would end at what--1:00 o'clock?
A  1:00 o'clock.
Q  All right, and I think you said about 2:00 o'clock--if I'm correct--you went back to the master bedroom where you and Colette stayed and found Kristen on your side of the bed and she had wet the bed?
A  That's right.
Q  Do you recall the testimony of Mr. Bob Caverly that you went to Kristen's room and, be- cause she wanted to get out of her bed, I suppose, you took her to your bed; do you recall that testimony?
A  Vaguely.
Q  That was from one of his interviews with you.
A  Yes.
Q  You do recall that testimony?
A  I either read it in his statement or I recall him saying it--one of the two.
Q  Okay, you are familiar with the fact that he is of that opinion?
A  It's not a fact.  I'm familiar that he is of that opinion.
Q  Okay, is he wrong or is he right?
A  My best feeling is that--recollection is that--Mr. Caverly has a lot of things out of se- quence and, once he wrote them down, they became a sequence, but I don't believe I ever said that to him.
Q  Let me ask this question: am I correct in assuming that, as far as you know, you did not carry Kristen to the master bedroom but simply went back there at 2:00 o'clock and found her there?
A  My recollection is that I went back to the master bedroom and found Kristie there and she had gotten there herself; I do not recall having taken her there.
Q  Could you have taken her there?
A  Yes, and I would like to explain that.  The first time I ever really tried to work out that se- quence was on April 6th--six or seven weeks later--and, when they asked me at that time, my recollection was that I found her in bed with my wife.  I may have put her there with a bottle but I doubt it.  I think I just gave her a bottle in her own bed.
Q  You are saying then that your memory on that question was probably better six weeks la- ter than it was the day after?
A  No, I think Mr. Caverly did a bad job of interviewing me.
Q  In other words, much of what he wrote down is simply incorrect?
A  My recollection of the conversation was that I had had a lot of medicine and was crying, and it was no sequence that I can remember at all in the way that he has it written down.  I can remember bits and pieces of a conversation that seemed incredibly jumbled in my mind.
I had no recollection of any sequence, and he kept trying to force me into a sequence, and I remember being agitated at his manner of questioning, and that's my best recollection.
   When I read his interviews many months later at the Article 32, it was not my recollection of the same conversation.
Q  Well am I correct in assuming that you are saying that what he wrote down was simply out of sequence and inaccurate?
A  Inaccurate is my best feeling about it.
Q  When you say you didn't like the way he was--I guess--coming at you, asking questions, was he making you say something that you did not say?
A  In a sense, by his interview technique.
Q  I know you talked yesterday about the red hood--the sweatshirt.  Other than that parti- cular example, what other things did he--by his technique in interviewing--did he say to you or ask you questions about that made you say something that was not your true feelings?
A  Well, he seemed in a hurry.  He would say, "Now, there are no distinguishing characteris- tics of these four people; right?"  So I would say, "I guess not."  So he scribbled something down.
Q  Did he make you say "I guess not"?
A  No; but my first thought was my wife and children.  I still could hear the air coming out of their chests.  Everything was jumbled together and I was confused.
Q  So it is correct, then, that on May 17th, 18th and 19th--the three days that he inter- viewed you--you are saying that you were somewitat confused in your answer to his ques- tions?
A  I was less confused on the 18th and 19th.
Q  Well, as I recall your testimony yesterday, on the 18th and 19th he had come back and said essentially, "Is there anything different, or do you have any additions or changes or anything like that?"
A  That is what he did.
Q  If you were less confused on the 18th and 19th, did you change any of the things that you said on the 17th?
A  We didn't go over the 17th interview.
Q  I recognize that.  But what I am asking is, didn't he give you the opportunity to make any additional remarks that you would like to make on the 18th and 19th?
A  He did not show me the statement from the 17th.  He said to me, "Do you have anything major--do you have anything to add from yesterday's statement?"  And I thought that I was telling him about possible assailants on the 18th, as I recall the conversation.  We did not discuss the sequence of events.  We did not go through the house.
Q  Did you remember on the 18th that you had done that on the 17th?
A  I remembered that we had had the conversation and that we had had this interview.
Q  Well, on the 18th--I don't want to belabor the point--but on the 18th, remembering that you had had the discussion on the 17th as to the sequence, why didn't you change some- thing or add something to it, if you thought what you said on the 17th was not accurate?
A  Well, the sequence of how I walked through the house did not seem important to me.  The loss of my wife and kids did.
Q  I recognize that, that one might be more important than the other.  But with respect to his questions that he wanted to know so that he could get on with doing the best that he could as an investigator, did it not seem at all important to you on the 18th to say, "Hey, look--with respect to the assailants--I said on the 17th 'I guess not' on distinguishing char- acteristics."  But on the 18th--"Hey, I thought of this."  Didn't it occur to you to say some- thing like that on the 18th or 19th?
A  We had a conversation--you know--for a period of 15 or 20 minutes, and that is the type of thing we were doing--the size of the people, the hat.  I believe we re-discussed the boots.  And I don't really recall anything more specific than that.
   I told him at that time about people that I had been thinking who could have been possible assailants.
Q  Am I correct in assuming that essentially on the 18th and 19th of February, with the inter- views with Mr. Caverly, you gave additional information as best you could, but you did not seek to change anything from what you had said the previous day?  Is that a correct state- ment?
A  That is a correct statement.
Q  Now, I believe you testified that you did the dishes on the early morning of the 17th; is that correct?
A  That's right.
Q  Do you recall whether or not you used any gloves to do these dishes?
A  I do not recall.
Q  Have you ever stated before under oath that you did, in fact, use gloves to do the dish- es?
A  I don't recall using them.  They said, "Could you have?"  And I said, "I could have," is my recollection of it.

MR. BLACKBURN:  Your Honor, just a moment.

(Pause.)

BY MR. BLACKBURN:
Q  Let me direct your attention, if I can, to the 6th of April, 1970.  Counsel for the Defense, I would say it is on pages 80 to 81, but that may be the original page numbers.  Let me read this portion, Dr. MacDonald, and see whether or not it rings a bell with you:
   "...Question: At any point during the night, during this checking before the military police arrived and the medics got there, did you wear a pair of gloves?  Answer: Did I wear a pair of gloves?  Question: Yeah, you.  Answer: Oh, yeah, to do the dishes.  Ouestion: What kind of gloves were they?  Answer: She usually had two pairs laying there.  A yellow, thick dish gloves and--and a pair of my surgeon's gloves.  I don't know which ones I used.  I don't re-member.  Question: But you did use--.  Answer: Right.  Question: Gloves to wash the dishes?
Answer: Yeah."
    Does that ring a bell with you, sir?
A  Well, I have read the interview several times.  I know that it is in there.
Q  Did you make those statements?
A  I must have.
Q  Okay; does that refresh your recollection, then, as to whether or not you wore gloves to wash the dishes?
A  No; it does not refresh my recollection.
Q  But you are not saying you didn't?
A  No.
Q  Now, when you wash dishes--I think you said yesterday you did that on a number of oc- casions, as you all divided up the housework?
A  We divided the housework.
Q  She did the ironing and you washed the dishes?
A  We divided the housework very unevenly.
Q  She did the ironing and you did the dishes occasionally?
A  I washed dishes occasionally.
Q  When you did wash the dishes, do you recall whether or not you ever used gloves or did not use gloves?
A  Sure.
Q  Which ones would you use--hers or the surgical gloves or what?
A  Either.  She used them a lot.  They were always out.
Q  Why would you use surgical gloves to wash dishes?
A  Why would you ever use gloves to wash dishes?  For detergent purposes, so you don't get a dermatitis around your fingernails.
Q  How about to keep the hot water from burning your hands?
A  That is not why I use them.
Q  You would use the surgical gloves to wash dishes to keep your hands from getting any kind of disease or anything?
A  Irritated.
Q  Did you ever use Colette's gloves?
A  They were a little small.
Q  You did not use those?
A  I don't think so.
Q  Now, I am sure you said this yesterday, but I don't recall it exactly.  What was the last time in the early morning of the 17th that you can nail down as tightly as you can as to when you went to the sofa in the living room and tried to go to sleep?
A  I can't nail down an exact time.
Q  Well, what is the closest you can do?
A  Shortly after 2:00 in the morning.
Q  Did you go to sleep pretty quick?
A  Yeah.
Q  Now, I saw one of the photographs of the master bedroom after the crimes had been committed--a photograph of the bedsheet and the bedspread on the floor, I think, by the door in front of the closet.  Do you recall seeing that particular photograph?
A  Yeah; I have seen it.  At some point, I saw a photograph with the sheet near the door; yes.
Q  Well, let me ask you if you would--is this what you recall seeing--this sheet and the bed- spread?
A  I guess so, yeah.  I haven't seen most of the photographs.
Q  Well, that sheet and bedspread, did they belong to you all?
A  If that is the same as has been identified here, I would--yes, they were ours.
Q  Let me ask you this, Dr. MacDonald, when you went back to see Kristen--or found Kristen in your side of the bed with your wife--did you rip the sheet and bedspread off the bed and put it on the floor?
A  Did I?
Q  Yes, sir.
A  No.
Q  You left them where they were?
A  That's correct.
Q  And got an afghan from Kimberly's room and went to sleep on the sofa?
A  To my best recollection, it was from Krissie's room.
Q  Krissie's room--the afghan.  Why did you not take a pillow with you to go to sleep with on the sofa?
A  Well, usually I didn't sleep with a pillow, but there were throw pillows on the sofa.
Q  Well, as I recall your testimony, there were two pillows on the master bedroom bed, in that one of them, I think, was put under your feet on the stretcher to take you to the hospi- tal; do you recall that?
A  I don't know that, no.
Q  You don't know that one was put under your feet?
A  In the master bedroom, one was; that is what I recall.
Q  Yes.
A  I do not know if it went to Womack Army Hospital with me.
Q  Well, okay.  Weren't there usually two pillows on your bed?
A  Yes, there were.
Q  Well, didn't you usually sleep with it; or did you put it on the floor every night?
A  I pushed it up behind me or put it off on the left side on the floor.
Q  So, it never occurred--excuse me, are you through?
A  Yes.
Q  It never occurred to you, then, to take the pillow from the bedroom and sleep with it on the sofa?
A  That's correct; it never occurred to me.
Q  Had you slept on the sofa previously?
A  Sure.
Q  And you had always done so without a pillow?
A  There were pillows on the sofa.
Q  Well, I am speaking--when I say a pillow, I am speaking of, you know, a pillow like on a bed?
A  That's right.
Q  Then you would use the little--I think it is a brown pillow that's on the sofa, is that cor- rect?
A  That's right.
Q  Did Colette ever sleep on the sofa?
A  Occasionally.
Q  Why would she sleep on the sofa?
A  Oh, sometimes to put her feet up, and so she felt like she wouldn't bother me, or if Kimmie or Kris had been with me in the bed.
Q  Did that happen very frequently?
A  No.
Q  Do you recall the testimony of Mrs. Ramage--at that time Mrs. Krystia--who stated--and I am trying to recall as best as I can--that the class--or at some time--Colette spoke about the problem of a young child coming into the bed, and I suppose cuddling up to the daddy, and sort of forcing her out of the bed, and she goes to sleep on the sofa; do you recall that testimony?
A  Yes, I do.
Q  You say that happened very infrequently?
A  Which?  The conversation with Mrs. Ramage?
Q  No, the actual doing of it?
A  It happened frequently with Kristie; it happened infrequently with Kimberly.
Q  All right; with Kristie, she being the youngest child, when you say it happened frequently, did Colette frequently go to the sofa and sleep?
A  No.
Q  What would she do, just stay in the bed?
A  Yeah; we would rearrange beds--play musical beds.
Q  Put Kristie back in her bed?
A  Sometimes.
Q  Was Colette at all concerned about this?
A  I don't think either of us were concerned.
Q  Did she ever talk to you about it?
A  We may have.  I have no specific recollection of an actual conversation, but I have been asked that at least three or four hundred times, and it may have--that conversation may have occurred at some time.
   I recall--the only conversation that I recall was relative to bottles.  It was not--
Q  (Interposing)  With Colette?
A  Yeah; it was not relative to whether Kristie was in bed with us or not.  It was not threat- ening at all to either of us.
Q  Well, would Colette go to sleep on the sofa as often as once a month, or was that more often than that--on the sofa, yeah; once a month or more often?  Or can you recall?
A  I can't really recall.  I would say once a month is probably a good guess.
Q  Now, you stated yesterday, as I recall, on direct examination, that you were not certain of your memory.  You were vague as to the sequence of events that occurred when the in- truders come into your house; do you recall that testimony?
A  That is correct.
Q  What woke you up?
A  Screaming.
Q  From your wife and child?
A  The first sound that I heard--
Q  (Interposing)  Was Colette?
A  --I believe was Colette.
Q  And then you heard Kimberly screaming?
A  I then heard Colette's words, then I heard Kimberly's words.
Q  They were not in the same room with you when you heard them scream, is that right?
A  They were not.
Q  And I take it you do not know where they were?
A  That is correct.
Q  Do you recall ever telling anybody that what woke you up was being hit on the head?
A  No; I do not recall that.
Q  Could that bave been correct, that you were awakened by being hit on the head?
A  I do not recall that, or having ever stated that; and I don't think that's true.
Q  You saw four intruders that you described, is that correct?
A  That is correct.
Q  Are you saying that there were only four intruders?
A  I saw four people in the house.  That is all I saw.
Q  You heard the testimony, I take it, of Dr. Gammel, the pathologist, who stated that pro- bably the first wounds or injuries that Colette received were the injuries to her arms, because they were in the nature of defensive wounds; do you recall that testimony?
A  Sort of; yes.
Q  And perhaps the lacerations on her head as well, the blunt trauma injuries?
A  Yes.
Q  Do you recall the testimony of Dr. Hancock?
A  Yes.
Q  Who stated, as I recall, that probably the first blunt trauma injuries that Kimberly received were also the blunt trauma injuries to the head; do you recall that testimony?
A  Yes.
Q  Well, do you further recall that Dr. Hancock also said--

MR. SEGAL:  (Interposing)  Your Honor, I believe I must OBJECT to this.  None of this Defen- dant's testimony--we know it is quite improper to ask the Defendant to explain whether the Government's theory or reputed theory works.
   I do not see it as a proper line of cross-examination, and OBJECT, sir.

THE COURT:  I will SUSTAIN an objection as to the form of the question.

MR. SEGAL:  All right, sir.

THE COURT:  But the subject matter--he may continue.

MR. SEGAL:  Well--

THE COURT:  It is really not relevant as to whether the witness recalls the testimony of some previous witness, though previous questions have been framed in that manner; but against objection I would say you would have to rephrase your question.

BY MR. BLACKBURN:
Q  Dr. MacDonald, the club that you were hit with--would you recognize it if you saw it again?
A  No.
Q  What kind of club was it?
A  I don't know.  My recollection when I had a hold of it was that it was smooth.  I did not recall a rough surface as the one you have showed me.
Q  In other words, this particular club you don't believe is the one that struck you?
A  No; it does not fit my recollection of holding on to the club.
Q  Was your club something--that hit you--something like a baseball bat?
A  That is what I would have guessed.
Q  Dr. MacDonald, can you tell me, sir, how two threads--two threads microscopically iden- tical to purple sewing threads in your pajama top--got on this club outside the door of the utility room area, when you stated yesterday that you never went outside that house?
A  I cannot.
Q  What position were you in, sir, when you were first struck by a club?
A  I believe just attempting to sit up.
Q  Where were your hands, if you can recall?
A  My left arm was up over me slightly in a defensive position.
Q  Like that (indicating)?
A  Right.
Q  How about your right hand?
A  I would presume I was pushing off the couch with that.
Q  Pulling up?
A  Not pulling; it would be pushing.
Q  Sitting?
A  Trying to sit up; right.
Q  The black man, as I think you said yesterday, hit you ever the head and the arm with a club; is that right?
A  That's right.
Q  If you would, sir, point out to the jury again where on your arm and where on your head you were struck first?
A  I don't know where I was struck first.
Q  Correct me if I am mistaken.  I thought you said--yesterday morning or afternoon, one-- that the first blow hit you on the arm and the head; is that correct?
A  That is my recollection of it; yes.
Q  That would be your left arm?
A  That's right.
Q  The front part of your head--the forehead?
A  I don't know if it was the front part or behind the ear; I don't know.
Q  All right; after that blow was struck, you went back out on the sofa and saw stars, as I recall what you said yesterday?
A  That's right.
Q  And what happened then?
A  I tried to get up again.
Q  You thought--and correct me if I am wrong--that you had better do something about the club?
A  Right.
Q  And you grabbed the club?
A  Yeah; on like a second swing.
Q  Did you grab it with one hand or two hands?
A  It is not clear.  I had a hold of his arm first--
Q  (Interposing)  Excuse me--which arm?  His right arm?
A  If you're--if you're trying to figure out what happened, I would guess it would be his right arm.  It could have been his left, but I have always assumed it was his right.
Q  Now, when you did this is when you saw the E-6 stripes on his fatigue jacket; is that correct?
A  During the struggle while I had his arm; that's right.
Q  Is that a green fatigue jacket, or do you remember?
A  I really couldn't tell you.
Q  The light was not too good, I take it?
A  No: it wasn't too good.
Q  Well, when he struck you the first time--assume just for the sake of this question that this is the club--did he swing the club over the right shoulder or left shoulder, or did he swing it over his head?
A  I didn't see it come over his head.  I saw it lateral--you know, to the right side of his shoulder.
Q  Like that (indicating)?
A  That's right.
Q  Have you ever told anybody that he swung it over his head?
A  No; I believe that I said I was hit.

MR. BLACKBURN:  Your Honor, just a moment.

(Pause.)

BY MR. BLACKBURN:
Q  Did you ever tell Mr. Caverly that he swung the club over his head?
A  I do not recall saying that.
Q  Well, if I could read from the April 6th interview, at page 40 you stated, "And he raised something over his head."

MR. SEGAL:  That is not Mr. Caverly, Your Honor--misleading--OBJECT to that.

MR. BLACKBURN:  I would rephrase the question.

MR. SEGAL:  Well, correct it--misleading, Your Honor.

THE COURT:  Well, now, Mr. Segal, you may make an objection, but don't make statements or comments or arguments in connection with it.  Just let me have the basis.

MR. SEGAL:  Yes, Your Honor; the basis is that it is misleading.

THE COURT:  If it is something--and you will know this--that should not be discussed from that place, come up here.

MR. SEGAL:  I don't think it is necessary.  Government Counsel knows it was not Mr. Caverly.

THE COURT:  No; now, restate your question.

BY MR. BLACKBURN:
Q  Do you recall telling Mr. Grebner, Mr. Shaw and Mr. Ivory on the 6th of April, 1970, that the club was raised over the black's head?
A  I have read the statement.  That is not the context of how I meant it.
Q  Well, of course, you can explain how you meant it?
A  That's right.
Q  Go ahead?
A  I didn't mean it that way.
Q  What did you mean?
A  I mean, I wasn't really worried about the angle of the club.  He said to me, did he swing at me?  And I said, "Yes," basically.  The way you just illustrated the use of the club still to me means that you swung at me in more or less an overhand fashion.
Q  You mean overhand?  Is that what you mean?
A  I mean--if the word is "overhead," it is overhead.

MR. SEGAL:  OBJECT.  I ask that the witness be allowed to finish his answer.

THE COURT:  Let him finish his answer, please.

THE WITNESS:  I am finished.

BY MR. BLACKBURN:
Q  Let me demonstrate again, and you tell me what you think the black guy did; okay?  Did he do this (indicating)?
A  No.
Q  Did he do this (indicating)?
A  That would be more like it.  The reason I say it is because I never really saw the club.  I assume if it had been over his head, I would have seen it.  I do not have a picture of actually seeing the club.  I saw his arm swinging around towards me.
Q  Okay; that was the first?
A  That was the first.
Q  Well, with respect to the second attempt--let's call it an attempt right now.  When you got back up after seeing stars-being hit the first time--you grabbed what you believe was his right arm?
A  Right.
Q  Let me ask you this question: did you grab it with one hand or both hands, if you can re- call?
A  I don't recall.  At one time I had both hands like, on his jacket, and they slid down onto the club.  And I also had it with one hand at one time.
Q  Was this during this same particular event of when he was trying to hit you a second time?
A  It was after that.  It was like a partially blocked second blow, at which time I had his arm.
Q  Well, let me demonstrate again.  Suppose, again for the sake of argument--that this is the club--that I am coming at you like this.  You are sitting on the sofa.  Now, let me get closer to you.  You tell me what you did as best you can recall.  I understand it has been a long time, but suppose you were sitting up like you are now.  I come like this.  What would you have done with my hand?
A  With your hand?
Q  Arm or whatever?  What I am trying to get at is, as best you can, show me and the jury what you did?
A  Well, of course the assailant was higher than I was, so we are out of "synch."
Q  Just pretend I am tall?
A  It's hard.  My arm was up like this, and I always thought that I eventually ended up with the wrist like this, and then reached over and had both of them like this (indicating).
Q  Okay?
A  So I had a hold of, I thought, his right arm.
Q  Now, let me ask you this: when you had me--or had him--like that, were you facing to- wards him?
A  Yeah; I would have had to have been slightly towards him.
Q  And I believe, am I not correct, that at that particular point you stopped the second blow?
A  Partially.
Q  Okay, if you would, sir, explain what you mean by "partially"?
A  It seemed like my arm had slightly fended off the blow.  Either his hand hit my arm or part of the club did and then my left shoulder and then I had his arm.
Q  He didn't hit you on the head again that particular time?
A  I was hit several times.  I don't recall when.  I mean I can't tell you right now that that blow did not hit my head or did hit my head.
Q  Well, at this particular point when he struck at you and you turned toward him and stopped the blow, is this the time that you felt the pain in your right chest?
A  It was all jumbled up.  It was after I had hold of his arm.  Okay, it seemed to me that it was after there was something around my wrists and I was still struggling and I couldn't get free and then I felt a pain, but that's at best a hazy recollection that I have tried to work out.

MR. BLACKBURN:  Just a moment, Your Honor.

(Pause.)

BY MR. BLACKBURN:
Q  Let me ask you this question: while you were holding the club, where was your pajama top?
A  I don't know.  I mean it originally had been on me.  At some point during the struggle it was around my arms.  I do not know when during the struggle it was either pulled over my head or pulled around from my back and ended up just around my arms.
Q  Well, at the risk of belaboring this, I want to go through this just a little bit.  When you woke up the first time and heard your wife and child screaming, hearing those screams, then being hit by the club, am I correct in assuming at that point that the pajama top--you know
--was still on you pretty much as it was when you went to bed?
A  That's correct.
Q  And you were hit with the club and knocked down and then bounced back up again to see what you could do?  "Bounce" is my word.
A  "Bounce" is your word.  I tried to get back up; right.
Q  And then you thought about the club and tried to stop the blow from the club?
A  Right.
Q  From the time that you started to stop the second blow from the club, at that particular time, had you yet had any altercation or struggle with the other two white males?
A  That would have occurred simultaneously.  The only thing that is clear is the first blow.
As I was trying to fend off the second blow, the other assailants were hitting me; yes.
Q  Okay, let me read to you, sir, a portion of your Article 32 testimony, page 30 and 31, and see if this rings a bell with you: "I thought I was being punched.  You know, I could feel like a rain of blows on my chest, shoulders, neck, you know, forehead or whatnot.  I was just get- ting punched by what seemed like a lot of what I thought was fists.  While I was holding on-
to the club I suddenly get a very sharp pain in my chest, my right chest.  Question: Do you know the source of the pain?  Answer: No, I did not."  Do you recall that testimony?
A  Yes.
Q  What I am getting at is this: when you were being hit with the club--attempted to be be- ing hit--the second time, is that the approximate time that you were stabbed in the right chest?
A  No, it seems to have been--you know--a reasonably close time frame.  We are talking about seconds.  It's hard--
Q  (Interposing)  Well, I recognize that.
A  --it's hard to say "this was second 11 of a 30-second altercation."  But at some time I had hold of the arm or I had already slid down onto the club and I felt the pain in the chest.
Q  Let me read, sir, from your grand jury testimony, I think, in 1974, volume II, page 151:
"Question: Now, where were you when you were struck with this blow that was particularly painful that seemed to take the breath out of you?  Answer: I was--I was holding onto the club at this point--you know--I mean--I was up--I don't know if I was up or I was down yet.
I don't know if my left leg was up yet, but I was sitting upright if not my leg sliding down on the floor."  Do you recall that testimony?
A  Yes.
Q  Well, maybe I missed something and that's possible.
A  I think you did.
Q  Well, that's possible.  Let me ask you this question: didn't you get the pain from in the chest while you were holding on to the club the second time?
A  It was in that time frame; yes.  Somewhere in there that did occur.
Q  Well, are you saying that the time the second attempted blow was struck--now, when you were struck in the right chest with something--the pajama top was around your wrists at that time?
A  It's unclear to me.  I really don't know.  It may or may not have been.  I remember strug- gling with my hands bound up and thinking I couldn't get my hands free, and I couldn't get up, and there was a pain, and I was holding on to things, and it occurred to me relatively simultaneously.  It was all occurring simultaneously, and it is hard to separate.
Q  So, I guess what you are saying is that it is possible that the pajama top then was not on your body like my shirt's on me?
A  It's possible.  Yes, it is.
Q  Well, is it possible in your opinion in thinking back that the pajama top was on you like it was when you went to sleep?
A  I'm sure it's possible.
Q  Have you had occasion to look at this pajama top in the last few years any?
A  In 1974.
Q  When you looked at it, did you see a cutting in the right side of the pajama top that would have matched where your injury to your right chest was?
A  I don't recall.
Q  Let me make sure I understand your testimony.
A  I don't recall.  I don't recall seeing such a tear in the fabric.  There may be one there. There may not be.  I don't know.
Q  Well, let me take just a moment.  Take a look at this.  Keep in mind the cuttings.  Tell us whether or not you see a knife cut or ice pick hole in that right side portion of the pajama top.
A  Yes, there's one down--number 21.
Q  Well, in the part--I wasn't clear--in the part that corresponds with the pneumothorax in- jury which you sustained.
A  Oh, I see.  You mean if this top was plastered flat against my chest in the normal position?
Q  Yes.
A  No, I don't see one there except for cuttings at that exact spot.
Q  Now, I take it this is the pajama top you wore to bed that night?
A  I only have your say-so.
Q  Is it not the pajama top that you wore?
A  I have no knowledge.
Q  Have you ever seen it before?
A  Sure.
Q  Were you ever shown this pajama top by the grand jury?
A  I believe I was.
Q  Were you asked then whether or not this was the same one?
A  I was asked questions similar to yours just now.
Q  Well, were you ever asked whether or not this was the pajama top that you wore that night?
A  I am sure I was.  I don't recall the question, but it must have been asked of me some time.
Q  Well, I wasn't there.  What was your answer then?
A  Assuming, you know, that that's probably the normal chain of custody, that is probably my
pajama top.
Q  Well, let me ask you this question: during the struggle that the black and two white males had with you, I think you said yesterday that it took what--30, 45 seconds--or under a min- ute?
A  That is my recollection, yes; that's what I said.
Q  And you stated that the white male talked in a monotone voice?
A  The who?
Q  I mean--excuse me--white female talked in a monotone voice?
A  That is correct.
Q  What did the other folks say?
A  I don't have any specific recollection.
Q  Did they say anything?
A  Someone said, "Hit him again," but I don't recall the voice.  I can't place that and say it was the same voice that said, "Acid is groovy.  Kill the pigs."
Q  Other than that statement, "Hit him again," and the girl's statements about "Acid is groovy," and that sort of thing, did you hear any other statements made during that time period?
A  I don't think so.
Q  I remember yesterday that Colette said--and I am paraphrasing--"Jeff, Jeff, Jeff, help me; why are they doing this to me?" and that Kim screamed after that, "Daddy, Daddy, Daddy, Daddy"?
(Witness nods affirmatively.)
Q  How long did those screams occur?
A  I have no idea.
Q  Well, if you don't have any idea, that's fine; but let me ask you this one question: did you hear them again shortly before you fell unconscious?
A  I am not sure.
Q  Could you have?
A  At this point, my best answer would have to be that I probably didn't; but that is essen- tially a guess.  I do not recollect hearing them at that time, now.
Q  I take it when you went to bed the night on the 16th and wore this blue pajama top, it was not ripped?
A  I don't believe so.
Q  Certainly not in this condition?
A  No.
Q  Was there any blood on it when you went to bed that night?
A  Not that I know of.
Q  Were any puncture holes in it?
A  Not that I know of.
Q  Do you know where it was ripped?
A  No.
Q  Did you rip it?
A  I may have.
Q  Did you ever hear any ripping sounds?
A  No; I do not recall ever hearing a ripping sound.
Q  Either from the intruders or from you?
A  That is right.
Q  How did these holes get in this pajama top?
A  From the assailants.
Q  Where was it when it got holes in it from the assailants?
A  My recollection is that it had to have been around my wrists.
Q  What were you doing with it?
A  I was fending off blows--trying to get my hands out.
Q  You don't know whether it was torn at that time?
A  I have no idea.
Q  You don't know whether it was pulled over your head?
A  I do not.
Q  Well, I take it, it was either ripped or it was pulled over your head to get around your wrists, would you agree with that?
A  I would agree with that.
Q  And you see that it is ripped?
A  Yes, I do.
Q  I know this pajama top was torn, but just for the sake of partial demonstration, what part of the wrists was it around, if you can say?
A  Initially it was around my wrists, and then it was involved with my hands and wrists.
Q  Well, so everyone can see, is this about accurate or would you want to change some- thing?
A  I have no recollection of it at all.
Q  But it was around your wrists?
A  It was around my wrists.
Q  Had that around your hands as you were trying to get it out?
A  That is right.
Q  Well, I want to do a little demonstration with this, and you tell me whether I am doing it right or wrong, as best you can recall?
A  Right.

MR. SEGAL:  Your Honor, I really don't understand how we can have a demonstration when there is no factual foundation for it.  The witness is unable to give an informative demonstra- tion on it.

MR. BLACKBURN:  Your Honor, this--

THE COURT:  (Interposing)  I will let him show us what he proposes to do, and if there is ob- jection on it I'll rule.

MR. SEGAL:  All right.

BY MR. BLACKBURN:
Q  How were you fending off the blows from the intruders when this was on your wrists?
Was it like that or like that?  Am I right or wrong?
A  I don't recall.
Q  But you were using this around your wrists or hands to fend off the blows of the intruders, is that correct?
A  That's correct.
Q  Was it between your hands?
A  Part of it must have been between my hands because my hands were not touching each other.
Q  And all 48 puncture holes got in here, in this pajama top, at that time?
A  That's what I would have to presume, yes.
Q  Can you tell us why those are circular, round holes and not tearing holes?
A  Can I tell you that?
Q  Yes, sir.
A  I was fending off blows that were coming straight at me, and I was pushing out against them.  I see no reason why the fabric should be torn and not have circular holes.
   It was not at all like the demonstration that you showed the jury.
Q  Well, that being the case, assume for a moment that this is around your wrists, and as- sume for the moment that I am an intruder.  Was I overhanded or was I underhanded or was I sideways--or what was I doing?
A  I would have to say that the blows were coming at me straight and I was almost in a sit- ting position, so I would have to--my assumption has always been that they were waist-high, just like you are doing now.
Q  Like that (indicating)?
A  That's right.
Q  And I would have done like that (indicating)?
A  That is what I remember--fending off blows like that, which I initially thought were punch- es.
Q  Well, did you ever, if you can recall, during this time, move the pajama top to the right or the left?
A  Did I ever during the struggle?
Q  Yes?
A  I'm sure I did. I had hold of a shirt one time.  I had hold of a hand.  There was movement during the struggle.  I am sure it had moved.  I did not hold this stationary.
Q  That is what I am getting at.  In other words, the whole time you had the pajama top around your wrists and somebody was stabbing at you, it was not just straight on.
A  No: but my recollection is that the majority of my movement was out against that.
Q  Was all of your movement out against it?
A  I do not recall.
Q  I take it, Dr. MacDonald, that when this was taking place and this was between your hands as you have just testified, was it next to your chest or was that away from your chest?
A  I think for the most part it was away from my chest.
Q  Like so (indicating)?
A  Yeah; I was using it more or less as a shield, and trying to pull my hands out and push away at the same time.
Q  Am I correct in saying, then, that during part of the struggle with the intruders--when they were striking at you and you had this around your wrists--that it was not at all times supported by your body or some body weight?
A  That is correct.
Q  Now, when the two white males were at the end of the sofa, do you know whether both of them had weapons or just one of them?
A  I do not know.
Q  Do you know what kind of weapon it was?
A  I just saw basically a glint of metal at one time when I had a hand.  I thought that it was a knife.
Q  Did you ever tell anybody, in pointing to your wounds, that they stabbed you with an ice pick?
A  No; I was told that.
Q  You never told Paul Connolly, who interviewed you in the hospital, "This is where they got me with the ice pick"?
A  No.
Q  Well, I am trying to remember what you said yesterday.  When the black fellow hit at you with the club and you were sitting on the sofa, what part of the sofa were you on?  Were you in the middle of the sofa, towards the end of the sofa?
A  When I was struck initially?
Q  The second time, say?
A  I would still have had to have been in the middle of the sofa.
Q  How did you get to the end?
A  I think it was a combination of things.  When Mr. Woerheide went through his little demon- stration at the grand jury, it seemed--you know, that was the first time I had ever done something like that--and it seemed like my left foot had to have been down.  And I was try- ing to push forward.  But at the same time, I remember holding onto the arm and the club, and he was trying to jerk it away.  And I think I was being pulled forward by that, trying to hold onto his arm.  The sofa isn't very big.  There is only a movement of a foot or two.
Q  Excuse me; whose arm were you talking about you were trying to hold onto--the black guy?
A  Yes.
Q  The point I am getting at is this: the two white fellows at the end of the sofa--what were they doing?  Were they on the sofa, pulling you?  Were they on the sofa, striking you?  What were they doing?
A  I don't know.  I was being hit.
Q  How wide is your sofa, the best you can approximate?
A  Oh, 30 inches.
Q  What you are saying is that two fellows were at the end of the sofa, a black guy was over here.  One of the white guys had a knife or an ice pick, I assume.  And you don't know whe- ther the other did or not.  And they were giving you a rain of blows to your chest; is that correct?
A  That is correct.
Q  Did this rain of blows come while you were sitting on the sofa in the middle, while you were at the edge of the sofa, or while you were falling down or when?
A  It must have started when I was in the middle of the sofa, but they seemed ineffectual.
Q  By "ineffectual" what do you mean--just didn't hurt you very much?
A  Yeah; I wasn't alarmed until I got the pain in the chest about the blows coming from that angle.
Q  Did you got the pain in the chest before you got the other ineffectual blows or after?
A  I had some ineffectual blows first, as I recall it.  There was a pain in the chest.  Then I remember letting go.  Either he jerked his arm free or I eventually let go and turned to the other two--to the white males.
Q  Before you were hit with the club the very first time, were you struck by any blows in the chest?
A  Before I was hit with the club?  No.
Q  Was that the first thing that happened to you--getting hit on the head with the club?
A  Yes; that's right.
Q  That knocked you back down.  Then you sat back up, and the black guy tried to hit you again with the club?
A  That's right.
Q  At some point in there you got a pain in the right side of the chest?
A  That's right.
Q  Is what you are saying--that you were hit with some ineffectual blows, but between the time that you were holding on to the club and you got the pain in your right chest?
A  That's right.
Q  Is that what you are saying?  And they were ineffectual?
A  That is my recollection; yes.
Q  Now, when they became effectual, when did they ever, besides the blow in the right part of the chest?
A  It never seemed--I only distinctly remember one major blow.
Q  That is the one that caused the pneumothorax?
A  I presume so.
Q  To the right side of the chest?
A  Right; that's right.
Q  Now, how long did you see the white girl?
A  Seconds at the most.
Q  One or two seconds, I believe you said yesterday?
(Witness nods affirmatively.)
Q  The light was on in the kitchen; is that correct?
A  That is correct.
Q  The dining room light was not on?
A  I don't believe so.
Q  The living room lights were not on?
A  Were off.
Q  How much of a view of the black male did you get?
A  I felt that I have fair remembrance of the black male and the white male in the middle--the shorter of the white males.
Q  What about the other white male?  You did not get as good a remembrance of him?
A  Not as good.
Q  Now, you said yesterday that you saw a flickering light in the girl's face as you fell?
A  That's right; not as I fell.  I saw the flickering light on her face when I first saw her.
Q  Okay?
A  I only saw a knee and a top of a boot as I fell.
Q  Now, let me ask you this question; did you ever see a candle?
A  No.
Q  Have you ever said that you saw a candle?
A  No; I said that I saw a light on her face and she may have had a candle in her hand.
Q  So it is correct, then--you really don't know what the light came from?
A  That is correct.
Q  Now, did you struggle with these folks after you got off the sofa, or did you fall off the sofa?
A  I really don't remember.
Q  Did you struggle with them in the hallway?
A  I do not believe so.
Q  Have you ever said you struggled with them in the hallway?
A  Well, you know, I awakened in the end of the hallway.  I think I just fell into it, but it was right there.  The end of the hallway is right there at the end of the sofa.
Q  Well, have you ever told anyone that you actually struggled with them in the hallway?
A  Not in the sense that there was a fight back in the middle of the hallway; no.
Q  How about towards the end of the hallway--towards the steps?
A  No; we never had a discussion with anyone about a struggle in the hallway.

THE COURT:  It is time for our recess now.  We will come back today at 11:15.  Members of the jury, don't talk about the case.  Take a recess until 11:15, please.

(The proceeding was recessed at 11:00 a.m., to reconvene at 11:15 a.m.. this same day.)


F U R T H E R  P R O C E E D I N G S  11:15 a.m.

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

THE COURT:  Any further questions of this witness?

MR. BLACKBURN:  Yes, sir.

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


C R O S S - E X A M I N A T I O N  (resumed)

BY MR. BLACKBURN:
Q  Dr. MacDonald, you did not receive any ice pick wounds in your hands or wrists or lower parts of your arms; did you?
A  None that I recall.
Q  Then would it be your testimony that the reason that you didn't, I suppose, was because you were fending off with the pajama top?
A  The two don't necessarily go together.  I did not receive any ice picks on my hands and arms.  My answer to that is yes, I did not receive any wounds on my hands and arms.  Why I did not I cannot say.

MR. BLACKBURN:  Your Honor, just a moment.

(Pause.)

BY MR. BLACKBURN:
Q  If you would, take one of those black--maybe this one--markers and come down to this drawing here which is Government Exhibit 1146.  What I would like for you to do, sir, is show us--mark on here--where you were as close as you can--where the sofa is, the black and two males--where you finally ended up is what I am getting at.
A  Which would you rather have?
Q  All of it.  Start out first putting yourself here, the black, the two white males, the position of the girl, if you would, and then maybe over here show us where you ended up.

MR. SEGAL:  Your Honor, may I interpose in the nature of an OBJECTION to suggest that this would not be as helpful as if we used the model instead.  That particular drawing does not have furniture in place in it which essentially described the event.  Doing it as if it is the total space there I think is not as valuable--if you are going to ask to use the illustration.

THE COURT:  Well, let's ask the witness.  Can you place on there the approximate location of the sofa and where you were and where these things took place?

THE WITNESS:  Yes, I can, sir.

THE COURT:  Do it.

BY MR. BLACKBURN:
Q  And if you would, Dr. MacDonald--well, go ahead.
A  This is the couch.  Should I label these?
Q  Yeah; why don't you?
A  The figure lying on the couch is myself.
Q  All right, if you would, maybe with numbers 1, 2, 3, 4, put where the black male--the black male being number 1 with the girl being number 4 and the white males being numbers 2 and 3, show us where they were.
A  The black male is number 1?
Q  Right.
A  Number 1 was slightly to my left, near the foot of the couch.  Number 2, the shorter of the white males, was between the black male and the taller of the white males.  Number 3 was the taller of the white males, and he was at the foot of the couch, and the number 4 girl was somewhere behind me then.  I do not recall.
Q  Why don't you, before we do the rest of it, resume your seat and we will come back to that in a moment.  Where was the white girl during the time that you struggled with the two white males and the black male?
A  I do not know.
Q  You did not struggle with her I take it?
A  I did not.
Q  You may have said this this morning but at the risk of going over it again, when you were struggling with the two white males, was that while--did they get on the sofa or was that when you got pulled to the end of the sofa?
A  I do not know.
Q  Okay, well, if you would then, come back down and mark where you ended up on the hall- way.
A  My best recollection is I was partially in the hallway and down the steps, but my arms were under me.
Q  When they were under you, were they sort of folded like that?
A  They were wrapped up in the pajama top and I was lying more on my right side than I was--you know--flush--prone--face down.
Q  Did you see any blood on you?
A  See any blood where, sir?
Q  On you when you woke up.
A  I did not look for any blood on myself.  I did not recall seeing any.
Q  Well, did you see any blood on the pajama top or on the floor?
A  I have no remembrance of that at all.  It is not what I was looking for.
Q  Well, you woke up and I think you said yesterday your teeth were chattering and you thought you might be going into shock.
A  That's right.
Q  Do you remember telling Mr. Shaw, Grebner, and Ivory at the April 6, 1970, interview that perhaps the reason you were chattering was because the house was cold?
A  Well, yeah, but that's a little--you know--it's taken slightly out of context.
Q  Well, put it in context.
A  Well, the April 6th interview was a very strange experience for me.  I had just spent six weeks trying to recover from the loss of my wife and kids and had been trying to talk to them for six weeks, and then I went over to pick up some personal goods, and they sat me down and questioned me for six hours.  I was trying to give them answers to what seemed like very absurd questions.
Q  Well, maybe this is an absurd question, but did you at the April 6, 1970, interview tell them that the reason you thought your teeth were chattering was not because of shock be- cause you had seen your vital signs and you weren't in shock but because your house was cold?
A  I was trying to explain--you know--why my teeth were chattering.  There were several reasons for why they may have been chattering, and I was trying to give them an explana- tion.
Q  Well, was that one of your explanations?
A  That was one of them.  I didn't say the house was cold.  I said the house could have been cold.
Q  You said you were cold?
A  No; I said my teeth were chattering.  Maybe I was cold; I don't know.
Q  Can you tell us how you fell off the sofa and the afghan that was on the sofa stayed on the sofa, even though you went off of it?
A  I am not aware that the afghan stayed on the sofa.
Q  Have you seen the photographs with the afghan on the sofa?
A  Yes.
Q  But you are saying that you don't know whether it stayed on or off?
A  That is correct.
Q  You said yesterday that you felt gloves on the hands.  Which hands did you feel gloves on?
A  Specifically, I thought--my clearest recollection is of on the hands of the black male with the club.
Q  What about one of the white males?
A  I am not sure.  I was asked that many, many times early on.
Q  What did you say?
A  The question was put to me, you know, "Did you feel gloves," and my reply was basically, "I could have."
   And they said, "Were they slippery or wet or bloody," and my answer, as I best recollect, was that I, you know--at one point I think the hand slipped away from me, and that was the context of the question.
   And I said, "Yeah; it could have been slippery."  There could have been gloves on the other
hands, but I only remember gloves on the hands of the black male.
Q  Could they have been kitchen gloves?
A  Could they have been?
Q  Yes, sir.
A  On the black male?
Q  Yes, sir.
A  I think so.  That was not my remembrance of it, but they--your question was, "Could they have been."
Q  Have you ever told anybody before that they could have been kitchen gloves?
A  I may have.  I don't recall saying that, but I may have.
Q  I think you said yesterday that you recall being shown a photograph of Helena Stoeckley at the Article 32 proceedings; do you recall that?
A  Yes.
Q  Do you recall what you said when you were shown it?
A  No.
Q  From page 141 of the transcript of the Article 32 testimony: "Question: Very good.  Now, I show you a photograph marked G-105, and ask you to examine it closely.  Have you had suf- ficient opportunity?  Answer: Yes.  Question: Do you think you have ever seen the girl that that represents before?  Answer: No."  Do you recall that testimony?
A  Not specifically; but I will accept the court reporter's version.
Q  I believe you stated that yesterday the photograph that you saw of Ms. Stoeckley at the Article 32 was not a full front picture, am I stating that correctly?
A  That is my recollection.
Q  It was more of a side view?
A  That is correct.
Q  Let me hand you what has been marked for identification as Government Exhibit 952, and ask you to take a look at it.  I want to ask you if that is the same picture that you saw at the Article 32?
A  I don't recall.
Q  What is--excuse me.
A  It could have been; but I don't recall.
Q  Well, for the record, would you read what is in the bottom right hand column, the num- bers?
A  The bottom number in the column?
Q  The bottom right hand portion.

MR. SEGAL:  May I see that, please?

THE COURT:  He wants to see it.

MR. BLACKBURN:  Certainly.

MR. SEGAL:  Okay; the identification number.  All right.

MR. BLACKBURN:  Let me let you see it anyway.

BY MR. BLACKBURN:
Q  If you would, Dr. MacDonald, read from the bottom right hand part of that photograph, what that is?
A  G-105.
Q  Do you recall being shown a photograph of Helena Stoeckley in early 1971, by CID Agents Kearns and Jack Pruett?
A  Not specifically; no.
Q  Were you ever shown any photographs by Kearns and Jack Pruett?
A  Yeah; I believe he showed me Corporal Badger's photograph, and he showed me a few other photographs.
Q  Did you make any identification of those photographs?
A  I don't believe so.
Q  The photograph which I just showed you, Dr. MacDonald--is that a front picture or a side picture of the person that is portrayed in that photograph?
A  That is a front picture.
Q  You don't know how long you were unconscious, do you?
A  No.
Q  When you woke up and went into the master bedroom to see Colette, what lights were on?
A  I do not recall.
Q  Well, by the time you got to the master bedroom, did you turn the light on or off, or do you recall?
A  I do not recall.
Q  What did you do when you went in there?
A  I took the pajama top off--I took the pajama top off my wrists--hands--took the knife out of Colette.
Q  Where did you put the pajama top?
A  I do not recall.
Q  The first time that you were in the master bedroom, did you put the blue pajama top on the chest of Colette?
A  You mean, at any time during the first visit to the master bedroom?
Q  Yes.
A  I could have.
Q  You could have?
A  My best recollection is I probably did.
Q  Well, yesterday--and you can correct me if I am mistaken--but I know yesterday you tes- tified that you said you made several circuits through the house?
A  That's right.
Q  To check on your family, and as I recall your testimony yesterday--and I could be mista- ken--but I think you said that you put the pajama top on the chest of Colette the second time in the master bedroom.  What I am asking you, sir, didn't you put the blue pajama top on the chest of Colette the first time you were in the master bedroom?
A  I am not sure when I first put it on Colette.  I remember putting it on her.  Trying to tie it into one of the circuits causes me some difficulty.  I don't have a clear remembrance of it was on the first or the second.  I also remember looking at her chest again, so it seems to me that I must have picked it up at one time and looked at it again.
Q  Well, let me read to you from your April 6th, 1970, interview.  Counsel for the Defense, it is on page 9 of the materials:
   "...CID Agent Shaw: All right, moving along a little bit further with this thing.  How does it happen that the pocket from this pajama top has a little bit of your wife's blood on it, very, very minute thing; but it is laying in the bedroom.  The rest of it--of the jacket is soaked with her blood--  MacDonald: I laid it--I laid it over her.  CID Agent Shaw: These are--
MacDonald: I am sure I took the thing off.  CID Agent Shaw:-- (Inaudible), you know.  Mac-Donald: I'm sure I took this thing off the first time.  I don't--I didn't make a circuit with this jacket on, I don't think.  I came down the hallway--I know that--and I went in, and I took it off to get my hands free--  CID Agent Shaw: Yeah.  MacDonald:--Basically--  CID Agent Shaw: Okay.  MacDonald:--And sometime while I was in there the first time, I--you know, I put it over my wife."
    Do you recall that testimony or that statement?
A  Yes.
Q  Does that refresh your recollection as to when you put it on Colette's chest?
A  It doesn't change anything that I just said.  It seems to me that it must have been during the first visit.
Q  So is it--and again, I don't want to beat this--but is it your best recollection that the first visit and the first trip--you know--to the master bedroom--at some point in there, you placed the blue pajama top on the chest of your wife?
A  That is my best recollection of what happened; that's right.
Q  When you say you took the pajama off of her wrists (sic)--your wrists--and threw it down, you don't recall where you threw it?
A  That is correct.
Q  You did not hear any ripping sounds at that time; is that correct?
A  Mr. Blackburn, I was not listening for ripping sounds.  I saw my wife covered with blood.
Q  I understand that, and I appreciate that.  What I am asking is, did you hear any ripping sounds?
A  No: I do not recall hearing ripping sounds.
Q  You saw the knife in your wife's chest; right?
A  That is correct.
Q  And you pulled it out; right?
A  That is correct.
Q  Did you wipe the knife off?
A  I have absolutely no renembrance of that.
Q  Do you know whether the knife was bloody when you pulled it out of your wife's chest?
A  I have absolutely no remembrance.  I saw it in my wife's chest and I took it out.
Q  So it could have been bloody or it could not have been bloody?
A  Well, I would assume that having been in her chest it was bloody.
Q  Well, how was it that no blood or very little blood was found on the knife?
A  I have no idea.
Q  Well, after you took the knife out of your wife's chest and put it somewhere or threw it somewhere, what did you do?
A  I either checked her pulses or gave her mouth to mouth resuscitation.
Q  You said yesterday that you moved her, as I recall?
A  Right.
Q  How much, if,you know, did you move her?
A  I don't recall how far.  My best estimates would be six inches to a foot, to get her away from the green chair.

MR. BLACKBURN:  Your Honor, if I could have just a moment?

(Pause.)

BY MR. BLACKBURN:
Q  I would like to read, Dr. MacDonald, several statements--first, from the April 6th, 1970, interview with you, the pages that I've got are pages 89 and--well, I'm sorry.  The first page is page 14.  Counsel for the Defense, when I am saying these pages, I believe that is the original page numbers.  If not, it is the other one.
   "...Question; Did you try to move her any place?  You said something about elevating her feet.  Would you go through that?  Answer: Geeze, I don't know, sir.  I don't think so.  I mean maybe--there's a green chair there.  Maybe she was leaning against it.  I don't re- member specifically, no.  But, you know, if she was lying a little crooked, in my compulsive manner I might have straightened her out or something.  But I honestly don't remember that. I can't--I can't say yes to that.  I don't remember moving her.  I remember--you know--later on, when I was checking her pulses and stuff--you check femorals and carotids and wrist-- and, you know--so I had to move her limbs, probably.  But I don't think I moved her body at all."
   Then also, on the April 6th, 1970, interview--

MR. SEGAL:  (Interposing)  May I have a copy of the same pages?  We don't have the pages you are talking about.  It does not comport with the original transcript.  Either use that or furnish them with a copy--

MR. BLACKBURN:  (Interposing)  Your Honor, Counsel has been provided with a copy of both sets.

THE COURT:  Well, give him a moment to find it, then.  Apparently, you are not on the same page.

MR. SEGAL:  Why don't you give me the original transcript?

(Counsel confer.)

MR. SEGAL:  I think we have solved the problem, Your Honor; thank you.

THE COURT:  All right, sir.

BY MR. BLACKBURN:
Q  Now, reading from the April 6, 1970, interview on pages 89 and 90, and I believe, Dr. Mac- Donald, I am reading part of your answer:
   "I remember we were right next to the chair; and, you know, I at least moved her limbs to
--you know, to--to look at her, really, and--and to see her chest and to give her artificial respiration.  Now, I might have adjusted her shoulders, or something like that, to lay her flat, you know, to give artificial respiration and--heart massage, you have to have them lying flat. I honestly don't specifically see myself shifting her.  But I was moving her and being excited and being the wife, you know, I might very well have shifted her an inch or two--a couple of inches--to lay her flat and then, you know, taken the knife out and, you know, giving her mouth-to-mouth or something."
    Do you recall those statements?
A  Yes, I do.
Q  Well, does that refresh your recollection as to whether or not you moved your wife?
A  It does refresh my recollection of what I said, but I'd like to explain the answer.
Q  Certainly.
A  As we mentioned many times, April 6 was the first time I had ever spoken about that night to anyone.  I had spent six weeks trying not to remember that night and the sights and sounds, and it wasn't until Captain Dalthan (phonetic) asked me to begin detailed recollec-
tions in writing that I remembered several things after the April 6th interview.
Q  Well, so I take it, then, that you are saying that the events of the six weeks after Febru- ary 17th sort of clouded your thinking.
A  That's correct.
Q  All right, directing your attention to the Article 32 proceedings on page 36 of your testi- mony:
   "Answer: Well, she was a little bit propped up against this green chair.  Question: Had you moved her from the position you found her from the propped position?  Answer: Well, that's where I found her.  Question: All right, go ahead.  Answer: And I just sort of laid her flat and opened her mouth and cleared out her mouth."
    Do you recall that?
A  Yes.
Q  Now, sir, also reading from Volume 11 of your Federal grand jury testimony on pages 318 and 319:
   "Answer: No, she was leaning slightly against the chair.  Ouestion: How much?  Answer: It seemed like just as though she was turned a little so the shoulder was up a little bit.  Ques- tion: Now, I know it is probably hard for you to remember details, but from what you can re- member at the point where the shoulder came in contact with the chair, at what point above the floor was that would you say in inches?  Answer: Oh, I don't know.  I would probably say six or seven inches."
    Do you recall that?
A  Right.
Q  So, your testimony today, nine and a half years later, is that you moved her six inches to a foot?
A  I'm just trying to--you know--if I moved her away from the chair and the shoulder was against the chair, it seems to me I would have to move her around six inches at least to do that.  I believe those are all relatively accurate statements.
Q  Isn't it true, Dr. MacDonald, that you changed your statement about whether you did or did not move your wife after you learned that threads and fibers microscopically identical to your pajama top were found under her body?
A  No, that's not true.
Q  Do you know where you threw--I'm sorry.  I asked that question twice.  Do you recall where you had to go to get the pajama top in the master bedroom to put it on Colette?
A  I do not.
Q  Do you recall whether you had to get up and walk somewhere?
A  I do not.
Q  I am reading from Volume II of your grand jury testimony, pages 186 and 187:
   "Question: All right, now, to get the pajama top in your hands and put it over the upper part of Colette's body, I take it you didn't have to change positions.  You just reached out and grabbed it wherever it was.  Answer: Yeah, I remember looking around and reaching around and picked it up and put it on her and covered her chest."
    Do you recall that testimony?
A  That's correct.
Q  Does that refresh your recollection any on that point?
A  I don't think you just read anything about taking steps.  You read reaching around, picking it up, and putting it on my wife.  I do recollect that.  I don't know where I reached.  I don't know whether it was on the bed, behind her, across her, on the green chair, behind me.  I have no idea.

MR. BLACKBURN:  Your Honor, if I could have just one moment.

(Pause.)

BY MR. BLACKBURN:
Q  Now, I would like to read from Volume II of your grand jury testimony on page 167:
   "Question: Did you relieve yourself of the pajama top?  Answer: Right.  I took it off and either dropped it or threw it aside.  Question: Do you have any idea where you placed it? Answer: No, it would seem to me that it would have gone--it would have gone--you know--in this area right here, somewhere in here near the chair.  I think I threw it off to the left, but that's such a..."
    And then it continues.  Do you recall that testimony?
A  Yes, that's very similar to what I just said.
Q  Well, does it refresh your recollection as to where you perhaps placed the pajama top?
A  No.
Q  Could it have been to the left?
A  It could have been to the left.
Q  Isn't it true that in 1974 that was your best recollection as to where it went?
A  No, I was asked could it have gone to the left.  I said, "It could have gone to the left."
Q  No, sir.  Let me read part of that again.
A  Okay.
Q  On page 167 of Volume II.  I will just read part of what I read.
A  Fine.
Q  "Question: Do you have any idea where you placed it?  Answer: No, it would seem to me that it would have gone--it would have gone--you know--in this area right here, somewhere in here near the chair.  I think I threw it off to the left, but that's such a..."
A  Guess.
Q  That word is not in the transcript?
A  I'm sure.
Q  Let me ask you again.  In 1974 in August, wasn't it your best recollection that you threw the pajama top off to the left near the chair?
A  No, that was a reconstruction in an attempt to try to find out where the pajama top went. I did not recollect throwing it that way.  I said, if you want to read it a third time, that, as I was taking it off, it seems like it much have gone that way or words to that effect.  It just seemed that that's where it would have gone.  I did not say that I saw it go that way or that I reached to my left to pick it up to put it on Colette.
Q  All right, I'll just let the words stand for themselves.
A  Fine.
Q  Tell us, Dr. MacDonald, how Type A blood got on Colette's pajama top prior to its being torn?

MR. SEGAL:  That's OBJECTED to.  There is no evidence of that.

THE COURT:  Yes, I will SUSTAIN the objection as to the form of the question.

BY MR. BLACKBURN:
Q  Did Colette bleed on your pajama top before it was torn?
A  Did Colette?
Q  Bleed on your pajama top before it was torn?
A  Not to my knowledge.
Q  Did you struggle with Colette and did she tear your pajama top in the V-neck part of it?
A  She did not.
Q  Did you struggle with Colette in the pajama top?
A  I never struggled with Colette.
Q  Did you wear your surgical gloves that night?
A  I did not.
Q  Why did you put your pajama top on top of Colette's chest?
A  I guess it was an attempt to try to treat my wife--cover my wife.
Q  For possible shock?
A  Under the circumstances I was very confused, didn't know what was happening, did not want to see what I saw, did not want to believe what I saw.
Q  Well, was shock a possibility as to why you covered her with your pajama top?
A  It was sort of an attempt to do something, I guess.  I can't really explain why I put it on her.
Q  Well, have you ever told anybody before that you placed it on the top of her chest be- cause of shock?
A  Sure.
Q  Did you elevate her feet?
A  I don't distinctly remember doing that, no.
Q  Was the pajama torn when you placed it on Colette's chest?
A  I do not remember that.  I have no recollection of seeing--
Q  (Interposing)  You don't know whether it was or not?
A  That is correct.
Q  Was there any blood on that pajama top, whatsoever, before you placed it on Colette's chest?
A  I have no idea.
Q  You have seen the photograph, I take it, or photographs--you may not have--of what appears to be a blue pocket from your pajama top on the overturned part of the throw rug in the master bedroom?  Have you seen those?
A  Yes.
Q  Can you tell us how that pocket got there?
A  There are several possibilities.  Do you want me to go through them?
Q  Sure.
A  It could fallen from the pajama top when I took it off my wrists.  It could have been moved when they moved myself or Colette.  I have--you know, there were probably ten people in that room at one time.
   I have no idea how it got there.  I think there are a lot of possibilities.
Q  It didn't get on there during the struggle with you and Colette?
A  I'll repeat: Colette and I did not have a struggle.
Q  Do you know whether or not the pocket had Type A blood on it or any other blood on it, when it was deposited in the position that it was found?
A  I have no idea.
Q  That night, did you ever touch the bedsheet and the bedspread depicted in that photo-graph behind you?
A  I have no recollection at all.
Q  Are you saying you did or you didn't?
A  I am saying neither.
Q  I am reading from page 22 of the pamphlet given to counsel for the defense in your Janu- ary, 1975 grand jury testimony, with respect to the blue sheet:
   "Question: But I am going to ask you again: did you handle that sheet that night?  Did you touch it?  Did you have anything to do with it?  Answer: Not that I remember."
Is that a fairly accurate statement?
A  That is a fairly accurate statement.
Q  Can you tell us, Dr. MacDonald, how a fabric impression or contact print matching the right
cuff of your blue pajama top got on that sheet?

MR. SEGAL:  That is OBJECTED to, Your Honor, because that is a fact that has not been pro- ven in this case.
   It is a fact that has been proven to the contrary, I suggest.

MR. BLACKBURN:  Your Honor, that--

THE COURT:  (Interposing)  Well, come up here.


B E N C H  C O N F E R E N C E

THE COURT:  I did not hear that entire--tell me that question again.  I am not sure that I got the full import of it.

MR. BLACKBURN:  The question was, "Can you tell us how a fabric impression or contact print matching the right cuff of your blue pajama top got on that sheet?"

THE COURT:  Now, Jim, that assumes that this witness agrees that it did get on there.  That question is improper.  I will let you ask the question: "If the jury should find from other evi- dence certain facts, do you have any explanation for it or anything like that?"
   That is a proper question, but not to say--put the answer in a question and make him agree that the answer is true before he ever gets a chance to--

MR. MURTAGH:  (Interposing)  With that particular cuff, Judge, that's the one that Thornton agreed with Stombaugh.  So I would say--

THE COURT:  (Interposing)  It is just the form of the question.

MR. SEGAL:  There are so many impressions we are talking about, they won't even know which one he is talking about.  The question in its form is improper, and I agree with Your Honor.

THE COURT:  You are absolutely correct, and I SUSTAIN the objection; but there is no objec- tion to: if the jury should find--you know, put it in a hypothetical.
   Just ask the question in the proper form.  Even Mr. Segal won't have any objection to that, will you?

(Bench conference terminated.)


BY MR. BLACKBURN:
Q  Dr. MacDonald, if the jury should find from the evidence that there is a fabric impression or
contact print matching the right cuff of your blue pajama top on it, do you have any explana- tion for that?
A  If the jury should find?
Q  Uh-huh (yes).
A  No.
Q  If the jury should find from the evidence that there is a fabric impression or contact print of hand prints and the left shoulder on that sheet, do you have any explanation for that?
A  It is hard to answer, because the evidence that you claim to be evidence has been dis- proven.  You want me to make a supposition based on something that--
Q  (Interposing)  Well, suppose the jury disagrees with you, and does find that it has not been
disproven, and finds what I said--do you have any explanation for that?
A  No.
Q  Suppose the jury finds from the evidence that in that bedspread there is a seam thread-- purple cotton sewing thread--matching to your blue pajama top, and entwined around a hair with blood on its shaft matching that of your wife Colette--do you have any explanation for that?
A  No.
Q  Suppose the jury should find from the evidence that pieces of rubber or latex are found in that bundle of bedding on the floor.  Do you have any explanation for that?
A  I have none.
Q  Suppose the jury should find from the evidence that the word "pig" on the headboard over where your wife slept was written in Type A blood with a gloved hand.  Do you have an ex- planation for that?
A  I have no explanation for that.
Q  Dr. MacDonald--just a second, Your Honor.

(Pause.)

BY MR. BLACKBURN:
Q  Dr. MacDonald, should the jury find from the evidence that on debris from the sheet of the bed in your master bedroom that there are 15 purple cotton sewing threads microscopically identical to those in your blue pajama top and seven blue polyester cotton yarns identical to the yarns as part of the blue pajama top--assuming that the jury should find that evidence to be true, do you have any explanation for that?

MR. SEGAL:  Your Honor, I do not believe the Defendant has to explain the Government's case for them.  I OBJECT to that.  It is not proper to make continued line of questioning on this.  I OBJECT to the question.  I suggest that it rises to the point of suggesting that the Defendant has some burden to prove away facts that the Government has raised in the first instance.

MR. BLACKBURN:  Your Honor, we would OBJECT to the comments of counsel.

MR. SEGAL:  That is the basis for my OBJECTION, Your Honor.

THE COURT:  I will OVERRULE the OBJECTION.

MR. SEGAL:  May I ask Your Honor, then, to give an appropriate instruction in that regard as to what burden the Defendant does or does not have.  I would request that at this time.

THE COURT:  I will say to the jury as you have heard from time to time and as you heard dur- ing the course of your selection, the burden is always on the Government to prove each es- sential element of the crime charged in the Indictment by evidence convincing to the jury beyond a reasonable doubt.  That is the rule of law under which all criminal cases are tried in this Court or Courts of this country, and it is in full force and effect from the inception of the trial right on through to the final verdict.

BY MR. BLACKBURN:
Q  Dr. MacDonald, would you like for me to repeat the question?
A  No.
Q  What is your answer?
A  Is this the sheet that Mr. Ivory scooped up and stuffed in the plastic bag?
Q  No, sir.
A  Which sheet are we talking about?
Q  The one that was found on the bed.
A  I have no answer for that.
Q  Assume, Dr. MacDonald--or suppose, I suppose--that the jury should find from the evi- dence that in the master bedroom as a whole, there were 60 or more purple cotton sewing threads found which microscopically matched your blue pajama top and 18 blue polyester cotton yarns which microscopically matched the pajama top and one blue-black sewing thread which matched your pajama top.  Assume for a moment that the jury.should find that evidence to be true, do you have, sir, any explanation for that?
A  With the understanding that they have not matched those fibers and threads against the pajama bottoms, no, I don't have any explanation for it.
Q  Assume for a moment that the jury should find from the evidence that no purple threads or
blue polyester cotton yarns matching any of those found in your pajama top were found in the living room, do you have any explanation for that?
A  It would lead me to feel that the shirt was pulled over my head rather than ripped from around my back.
Q  Do you remember it being pulled over your head?
A  No; neither do I remember it being torn.
Q  I believe you said this morning that it was one or the other?
A  That is a reconstruction of what, you know, probably had to have happened--one of the two.
Q  I would like to read again, sir, from your April 6th, 1970, interview at page one, counsel for
the Defendant, in the notebook.
   "CID Agent Shaw: Captain MacDonald, you told one of the other investigators earlier that you were wearing a pajama top that was pulled over your head, or something like that.  Mac- Donald: Right.  Well, all I know is that--well, when I was struggling now--after I had been hit the first time, I was struggling with these guys; and my--somehow, my pajama top--I don't know if it was ripped forward or pulled over my head.  I don't think it was pulled over my head.  I don't remember actually--like backing my head through it.  But all of a sudden, it was all around my hands and it was in my way.  And I remember that I was holding this thing in my hand--the guy's hand--that--that I couldn't maneuver very well.  My hands were kind of wrapped up in the thing.  And as they were punching me, I was kind of using that a little bit, you know, holding it--right, exactly--'cause this guy, I thought, was really punching me in the chest, you know, and in the stomach 'cause I--I was getting hit across here (pointing to the mid-section of his body).  So, in effect, I was blunting everything by, you know, holding this up; and I couldn't get my hands free out of this thing.  And I remember I ended up, when I was laying on the floor--I forgot to say that--when I woke up on--it was still around my hands and everything, and I took it off as I was going in the bedroom.  And after I took this knife out of my wife's chest, I--you know, keeping her warm, you know, to treat shock, that would be (inaudible) and keep them warm."
    Do you recall that testimony, sir?
A  Yes.
Q  Are you stating then, that you do not know whether or not the pajama top was ripped in the struggle in the living room?
A  That is what I have always stated.
Q  Isn't it true that it was your best recollection as of April 6, 1970, that even though you did not know which was which or which had been done, that it was your best recollection as of that time that the pajama top was not pulled over your head?
A  What I said was I didn't remember my head sliding back through it.
Q  Okay; when you left the master bedroom and Colette, you went then to Kimberly's room, is that correct?
A  That is correct.
Q  Was the light on or off?
A  I do not recall.
Q  You could see her, though, I take it?
A  I could see her.
Q  When you went up to the bed to see her, which side did you go to?
A  The right side of the bed.
Q  Was the right side the side closest to the window, or the wall?
A  Closest to the window.
Q  Were the covers up on her at that time or do you remember?
A  I really don't remember.
Q  And was it this particular first juncture that you went in there that you gave her some medical assistance?
A  I do not recall which trip it was.
Q  You made how many trips in there?
A  Two.
Q  How long did you stay the first time?
A  I have no idea.
Q  Were you wearing your pajama top at this particular time?
A  Pajama top?
Q  Yes, sir.
A  Not that I recall.
Q  Okay; either the first or the second time what did you medically do to assist Kimberly?
A  I checked her pulses and I gave her mouth-to-mouth breathing.
Q  Which side of the bed was she on?
A  She was on the right side of the bed, the side that I was on.
Q  Closest to the window?
A  That is right.
Q  What did you do; did you just sort of lean over and give her mouth-to-mouth, or check her?
A  I don't specifically recall.
Q  You didn't get on the bed with her?
A  Get on the bed with her?
Q  Yes, sir.
A  No.
Q  Well, suppose the jury should find from the evidence that on Kimberly's bed on top of the covers, and also inside under the covers and on the pillow closest to the wall--from all of that the jury should find that there were 14 purple cotton sewing threads, microscopically identical to your pajama top; and approximately five blue polyester cotton yarns, microscopi- cally identical to your pajama top--suppose the jury should find all of that from the evidence. Do you have any explanation for that?
A  Not unless they came from my arms.
Q  If they had come from your arms, does that mean then that the pajama top was ripped off of your arms or something?
A  No; I didn't say that.  I took it off my arms in the bedroom--in the master bedroom.
Q  Well, suppose the jury should find as you just said that the threads and yarns came from your arms--how would that have occurred?

MR. SEGAL:  Your Honor, I OBJECT to the form of that question.

BY MR. BLACKBURN:
Q  Do you have any explanation, sir, as to how that would happen?
A  I can envision threads hanging on to my hair arms (sic) and dropping off at some later time.  That seems like a rational explanation.
Q  Were your hands wet or moist--arms wet or moist?
A  I don't recall.
Q  Was there blood on them?
A  I am sure there was some.
Q  All on your arms, or just your hands?
A  I don't recall.
Q  Suppose the jury should find, Dr. MacDonald, that Type AB blood, the same as that of your daughter Kimberly, was found on the blue pajama top; and that you were not wearing that pajama top when you went to see Kimberly.  Do you have, sir, any explanation for that?
A  Pure conjecture.
Q  Is that your answer?
A  I mean as pure conjecture, any of us can make.
Q  Well, is that--do I take it then that any answer that you give would just be, as you said, conjecture on your part?
A  That is correct.
Q  Dr. MacDonald, suppose the jury should find from the evidence that in the area near the largest blood stain in the carpet in the master bedroom that splinters--at least one in excess of three inches--was found that fits into and matches the club over here on the table.
   And also suppose the jury should find that in that same area, three purple cotton sewing threads were found, microscopically matching your blue--purple seam threads in your pajama top.
   Supposing all of that, do you have any explanation for it?

MR. SEGAL:  That is OBJECTED to as to its form, Your Honor.  The connection between those matters has never been established--that they were there at the same time or any other time.

THE COURT:  Well, unless you can show me that that evidence is in the record, I will SUSTAIN that objection.

MR. BLACKBURN:  Your Honor, that came from--let me approach the bench.

THE COURT:  You had better come up here if you are going to tell me what is in the record.

B E N C H  C O N F E R E N C E

MR. MURTAGH:  Judge, the splinter is Government Exhibit 125.  That has been testified to as fitting back into the side of the club, and there are photographs in evidence.
   In the same area you can see in the photograph various threads and yarns, and I believe Mr. Ivory took this very same piece of rug and pointed to an area where he saw the purple cotton threads.
   So I think that the evidence--the relationship of those exhibits to each other is self-evi- dent by the photographs.

MR. SEGAL:  The difficulty with the question, Your Honor, is that it presupposes that there is any evidence that they both got there at the same time.
   If he wants to ask individually, that's all right.  But the juxtaposition of the question sug- gests they all got there at the same time.  That is what I object to.

THE COURT:  Well, I will SUSTAIN it and let him go get them one at a time if he wants to.

MR. SEGAL:  Certainly, Your Honor.  That would not be improper.

THE COURT:  Now, as a scheduling matter.

(Discussion off the record.)

(Bench conference terminated)


THE COURT:  All right; proceed.

BY MR. BLACKBURN:
Q  Dr. MacDonald, do you know your own blood type?
A  I believe it's B.
Q  With respect to Kristen's room, suppose the jury should find from the evidence that there is a purple cotton sewing thread and a blue polyester yarn microscopically matching that of your blue pajama top on the bed in her room, do you have any explanation for that?
A  It's pure conjecture, again.
Q  Dr. MacDonald, suppose the jury would find from the evidence that splinters matching the club on the table over there were found in Kimberly's room and Kristen's room, do you have any explanation for that?
A  Do I?
Q  Yes, sir.
A  Nothing more than the obvious.
Q  Which is that they were struck in there with the club or someone struck them with the club?
A  Correct.
Q  With respect to Kristen's room, supposing the jury should find from the evidence that blood--Type A blood--is found on the wall over the bed in Kristen's room--Type A being the same type as Colette--that the jury should find that--and also that Type A blood is found on the--in direct bleeding--is found on the top sheet in Kristen's bed.  Do you understand what I have said so far?
A  Sort of.
Q  Let me rephrase it again.  Suppose the jury should find from the evidence that Type A blood is found on the top sheet of Kristen's bed in massive amounts and also on the wall over the side of the bed, splattered, do you, sir, have any explanation for that?
A  Making the very large assumption that the CID could type blood, no.
Q  Do you know your wife's blood type?
A  A.
Q  Do you know Kimberly's blood type?
A  We have been told here many times.
Q  Did you know it in 1970?
A  No.
Q  About Kristen's?
A  No, I don't believe so.  I don't believe I knew any of ours.
Q  Dr. MacDonald, suppose the jury should find from the evidence that all the blood on the floor in Kristen's room, with the exception of the footprint, is that of Type O blood, and sup- pose further that the jury should find from the evidence that that is your footprint exiting that room, and suppose the jury should find further that that footprint is made in Type A blood; do you have any explanation?

MR. SEGAL:  That's OBJECTED to as to the form of the question, joining distinctly separate matters together as if there is proof that they are linked together, Your Honor.

THE COURT:  I will OVERRULE that.

THE WITNESS:  Well, I would probably agree that that was my footprint since I was there.
As far as the blood typing, again assuming the CID accurately typed the blood, I am not--you know--I have no explanation for the blood typing and patterns, assuming they are correct.

BY MR. BLACKBURN:
Q  Dr. MacDonald,--

THE COURT:  (Interposing)  I'll let the jury retire now, and we will come back today at 1:30 today which is our short day you may recall.  While you are out, members of the jury, don't discuss the case among yourselves or with others.  Don't let anybody discuss it in your pre- sence.  Remember all these things.  We will be back today at 1:30.  The court will be re- cessed shortly, but no one will leave until this jury has retired.

(Jury exits at 12:30 p.m.)

THE COURT:  That young lady wanting to leave there, we are getting ready to recess the court.  I said we could all leave when we recess the court, so if you want to leave, it won't be long.  Take a recess until 1:30, please.

(The proceeding was recessed at 12:32 p.m., to reconvene at 1:30 p.m., this same day,)


F U R T H E R  P R O C E E D I N G S  1:30 p.m.

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

THE COURT:  Good afternoon.  Go ahead.

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


C R O S S - E X A M I N A T I O N  1:31 p.m. (resumed)

BY MR. BLACKBURN:
Q  Dr. MacDonald, when we broke for lunch, as I recall, I had just asked you and I think you answered the question about the footprint and the blood in Kristen's room.  Now, again, sir, should the jury find from the evidence that that is your footprint as you indicated it probably is and that the blood in that footprint is Type A blood, can you tell us at all where you got that Type A blood from?
A  I have no idea.
Q  Dr. MacDonald, did you take the bedspread from the master bedroom off the floor and that sheet, place Colette on the bedspread, step in blood on that bedspread, and pick Colette up and carry her out of that room?
A  I did not.
Q  You testified yesterday and a little bit this morning that you, on a couple of trips to both Kristen's and Kimberly's rooms, I believe, gave them mouth-to-mouth resuscitation and checked for pulses; is that correct?
A  That is correct.
Q  Now, I believe you testified that when you saw Kristen, she was on her back; is that right?
A  More on her back than the picture I saw.
Q  Well, the picture which you saw yesterday had her on her side; did it not?
A  That is correct.
Q  On the right side of the bed--of her bed?
A  Kristie?
Q  Yes.
A  On the left side of her bed.
Q  No, the photograph you saw--not how you first saw her.  With respect, sir, to this photo- graph, when you last saw Kristen, prior to the MPs coming, was that the position that she was in?
A  That is not how I remember her.
Q  Well, I guess, to give artificial respiration, you need to put somebody on their back; would I be correct in saying that?
A  Yes.
Q  And you checked her pulses and saw bubbles coming out of her chest?
A  That is correct.
Q  Was the bedcovering up or down?
A  I do not recall.
Q  I guess it would have to be at least down to her waist; wouldn't it?
A  I guess so.
Q  After you gave her, you know, mouth-to-mouth and checked her pulses and saw the bub- bles in her chest, did you move her in any way?
A  Sir, this was my daughter I was trying to resuscitate.
Q  I recognize that.

MR. SEGAL:  He is not finished.

THE WITNESS:  I don't recall any specific details about how I then laid her back down or what I did with bedcovers.

BY MR. BLACKBURN:
Q  Are you finished?
A  Yes.
Q  I recognize that it was your daughter.  What I am getting at is this: to the best of your knowledge or recollection today, after you checked her as you stated you did, did you in any way move her to the position that she is found in that photograph?
A  I do not recall that; no.
Q  Does that mean that you could have done that?
A  It is possible.  I remember I thought she was more on her back when I last saw her.
Q  With respect to Kimberly, am I correct in saying that you gave essentially the same type of treatment that you did Kristen?
A  Yes, that's right.
Q  And you saw bubbles come out of where?
A  It seemed like her upper chest--low neck, upper chest area.
Q  Of course, did she have any puncture wounds or stab wounds in her chest?
A  Well, I haven't studied the autopsy reports but I think there has been reference to punc- ture wounds in her low neck, upper chest area.
Q  Well, did you see any bubbles, say, coming out of her from here down?
A  I don't specifically recall.
Q  But it could have been the low neck is what you are saying?
A  Yes.

MR. BLACKBURN:  For the record, the photograph of which we have just been talking is Gov- ernment Exhibit 982.

BY MR. BLACKBURN:
Q  This next photograph is Government Exhibit 983.  When you checked Kimberly, did you pull the bed covers down to check her?
A  I do not recall.
Q  But you saw bubbles--I'm sorry.  You checked her pulse and gave her artificial resuscita- tion.  Do you recall whether or not the covers were down at any time while you were in there?
A  I can't say that I specifically do.  I thought that I checked her femoral pulse in the groin area.
Q  Then you would move the covers to do that?
A  Or put my hand under the covers.  But I could have taken the covers down very quickly and checked her pulse that way.
Q  Well, when you saw Kimberly, was she on her back or on her side?
A  She appeared to be more on her back than in the picture that was shown to me yester- day.
Q  Did you observe the injury on the left side of her head?
A  I didn't recall specific injuries.  I just saw a lot of blood.
Q  Well, with respect to Kimberly, after you checked her and gave her medical assistance, did you then pull the cover back up and sort of tuck her in?
A  I do not recall doing that.  I might have.
Q  And during this time, when you were checking Kimberly, you were without your pajama top; is that correct?
A  That's correct.
Q  Dr. MacDonald, with respect to the Hilton bathmat that you have seen in the courtroom, do you recognize that?
A  Yeah.  Yes, I do.
Q  You all had a Hilton bathmat I take it?
A  Apparently so.
Q  Well, do you recall where it was the night of the murders?
A  I do not.
Q  Did you place it on Colette?
A  I don't recall doing that.
Q  Could you have done that?
A  I could have done that.
Q  Perhaps got it from things that were in the green chair?
A  That is correct.
Q  Should the jury find from the evidence--or suppose the jury should find from the evidence that the Old Hickory knife--the blood on it was wiped off on that bathmat, and also the ice pick that was found outside the house was also wiped on it, do you, sir, have any explana- tion for that?
A  Not unless the assailants did that.
Q  You did not do that?
A  I did not do that.
Q  Dr. MacDonald, what I want you to do now, if you would, sir, is take the grease pencil which you used this morning and starting maybe with number 1, where you know, you were-- where you were when you awoke--and with using numerical numbers, show us and trace through the steps where you went until the MPs found you.  Is that clear, what I am asking you?
A  Sure.
Q  If you would do that, sir?
A  Do you want lines or just numbers?
Q  No; just do numbers; and tell us as you go along, if you would.
A  Number 1 is the end of the hallway.  Number 2 is in the master bedroom; number 3 I be- lieve to be Kimberly's bedroom.

MR. SEGAL:  Place a question mark after that, please.

THE WITNESS:  Number 4 should be Kristen's bedroom.  Number 5 I was in the hallway here; and I--

BY MR. BLACKBURN:
Q  (Interposing)  Excuse me, Dr. MacDonald; I don't mean to interrupt.
A  It was the hallway--in front of the hallway bathroom.
Q  Okay.
A  And I either went to the bathroom for Number 6 or--I am unable to tell you specifically which--I went back to the master bedroom for 6.  At some point--this was a bureau, with a phone at the end of the bureau in the master bedroom.
   At some point I was at the phone.  At some point I was at the utility door.  At some point I was back in the master bedroom; then I was in the bedroom with Kimberly, the bedroom with Kristen, back to the hallway, and in the kitchen on the phone, and back down the hallway to the master bedroom.
Q  Which is when the MPs found you?
A  That is right.

MR. BLACKBURN:  You may resume your seat.

BY MR. BLACKBURN:
Q  When you went to Number 7, the telephone in the master bedroom, did you do that after you had checked Colette?
A  Yes.
Q  Okay; now, when you checked her again--which I guess would be the second trip back into the master bedroom?
A  That is as good a guess as any.
Q  On the second trip, let's say, back to the master bedroom, what did you do when you checked Colette?
A  I do not recall which time I checked which pulses.
Q  Would that be what you were doing?  Checking the pulses?
A  And possibly giving her mouth-to-mouth.  I don't specifically remember which one.  It seemed like I did it more than once with Colette.
Q  How many times did you go, if you can recall, to the bathroom?
A  I think once.
Q  What did you do--of course you are not sure when you went to the bathroom--but what did you do when you went in there?
A  I remember rinsing my hands.  There was blood on my hands and I was rinsing blood off my hands, and I remember looking at my forehead in the mirror.
Q  Which was what?  Bloody?
A  There was a smear of blood across my forehead separate from the obvious wound at that time on the left forehead, and there was blood around my mouth.
Q  This blood that was around your mouth: do you know where it came from?
A  I presume from doing mouth-to-mouth.
Q  You did not have an injury around your mouth?
A  No.
Q  The blood on your hands: where did that come from?
A  I presume from my wife and my children.
Q  Dr. MacDonald, suppose the Jury should find from the evidence that the blood in the bath- room sink is that of Type B, your blood; and assuming further or supposing further that the Jury should find that it was not Type A, Type AB, or Type O: do you have an explanation for that?
A  No.
Q  Dr. MacDonald, at any time, did you in any way, either by standing on something or just standing there--you know--in the bathroom, did you at any time take a scalpel or any instru- ment and inflict any injury on yourself while at the bathroom sink?
A  I did not.
Q  Suppose, sir, that the Jury should find, from the evidence, that no Type B blood--your type blood--is found in the living room area where the struggle with the intruders allegedly occurred, and you were allegedly stabbed--do you have any explanation for that?
A  Nothing other than the obvious ones.  The wounds weren't bleeding very much.
Q  Suppose the Jury finds from the evidence that you were stabbed and the wounds weren't bleeding very much, and that you did not go into the bathroom until, say, number 6, as des- ignated by you on that chart, and that B Type blood is found in the sink, on the outside of the sink and around the basin: do you have any explanation for that?

MR. SEGAL:  Your Honor, I OBJECT to the form of the question.  It is compound, confusing.

THE COURT:  OVERRULED.

THE WITNESS:  Do I have an explanation why there was B type blood on the sink?  Is that the question?

MR. BLACKBURN:  Let me ask you again, if you want me to.

THE WITNESS:  Fine.

BY MR. BLACKBURN:
Q  Suppose the Jury should find from the evidence that your blood is Type B, and that the reason that there is no B Type blood in the living room is because the wounds don't bleed very much, as you have stated, and that you do not go into the bathroom until number 6, as you referred to on that diagram, and that they find from the evidence that there is B Type blood both on the inside and the outside of that sink: do you have any explanation for that?
A  Well, when I checked myself, I saw my own chest wound that was bubbling.  When I looked at the wound, I presume I got some blood on my hands from that, but that is the only obvious answer that I can give.
Q  Dr. MacDonald, suppose the jury should find from the evidence that there is no blood or was no blood that was sufficient to be typed--sufficient quantities to be typed--on either the telephone in the master bedroom or the kitchen and that they should find from the evi- dence that you went there and used the phone as you have indicated; do you have any ex- planation for why there would be no blood?
A  No.  There was blood on my hands.  I used the phone.  I have no explanation for that lack of finding.
Q  Dr. MacDonald, when were you first married?  I say, when were you married?
A  1963.
Q  In September?
A  That is right.
Q  Dr. MacDonald, the summer of 1964, did you have sexual relations with a female by the name of Gloria Lloyd?
A  Yes.
Q  Now, you testified yesterday, as I recall, at the close of the day on Direct Examination, that you had had a very brief sexual encounter with a girl in Texas, I believe, in mid-summer; is that correct?
A  That is correct.
Q  And that, I believe, the last thing or last part of your testimony yesterday related to a card that was written to you from your wife, Colette; do you recall that?
A  That is correct.
Q  Do you recall the date of the card?
A  I know it was when I was in jump school at Fort Benning, Georgia.
Q  Was it during the summertime?
A  It was during the latter weeks in August.
Q  This, then, would have been the same summer that you had the brief encounter in Texas; is that correct?
A  That is correct.
Q  Dr. MacDonald, after the murders occurred on the 17th of February, 1970, within approxi- mately a two-month span after that, did you have occasion to have sexual relations with a girl by the name of Gerry Carpenter?
A  I did not.
Q  Do you recall when that was?
A  When what was?
Q  Did you ever have sexual relations with a girl by that name?
A  I did.
Q  Do you recall when it was?
A  November.
Q  November?
A  That is correct.
Q  After the Article 32?
A  That is correct.
Q  You are not referring to Linda Matthews?
A  No.

MR. BLACKBURN:  Just a moment, Your Honor.

(Pause.)

BY MR. BLACKBURN:
Q  Now, I think you testified on direct examination yesterday that from 1971 to 1974 you pri- marily dated one individual; is that a correct statement?
A  Yes.
Q  Did you ever have an occasion to see or date anyone else during that time?
A  Yeah, we were both dating other people for the first year of that relationship.
Q  Well, I guess what I am getting at is this: from the period of 1971 to 1974, is it an accu- rate statement that you had sexual relations with a number of girls?
A  From 1971 until 1974?

MR. SEGAL:  If Your Honor pleases, I think that we have gone about as far as a decent pro-secution should go in a matter after the discharge and the end of the case.

THE COURT:  Do you object?

MR. SEGAL:  I OBJECT most assuredly, your Honor.

THE COURT:  Do you want to be heard on that?

MR. BLACKBURN:  Yes, Your Honor.

THE COURT:  Come up.


B E N C H  C O N F E R E N C E

MR. BLACKBURN:  Sir, Your Honor, I am not going any further into this than I have gone right now.  The point was that yesterday on direct they tried to make the point that he is a one-- you know--female person.  The grand jury destroyed this in 1975.
   The only thing we wanted to show was that that is not accurate, that he was just tied down to one person during this time.

THE COURT:  I had the impression that you probably opened up the door to that by leaving the impression that he was tied to one woman.  I am going to let him answer.  He says that is the last one, and we will let it go.

MR. SEGAL:  Your Honor, let me be heard on this matter just a moment.

THE COURT:  Yes.

MR. SEGAL:  First of all, I think my own question was pretty clear in my own mind--was that a special relationship and what happened to it, why it did not result in marriage.  The reason was to show that the memory of his family was so strong that when he considered this, it was not something he could do.  It did not have anything to do with sex or with frequency of sex.  It had to do with commitment.  I would suggest to Your Honor you exercised 403 a number of times to exclude Defense evidence.  I could not think of a better time to put an end to this very collateral pursuit to exercise under 403 your discretion to keep it out be- cause its probative value is far outweighed by the prejudice and confusion.

THE COURT:  Well, he says that's the last one he is going to ask.  He has already got his question in now.

MR. SEGAL:  If Your Honor pleases, I ask you to give a cautionary instruction as to the limited value to the matters taking place that late after the crimes, I think in fairness to the Defendant he is entitled to that.

MR. BLACKBURN:  That might be so, had the door not been opened yesterday.

THE COURT:  Well, I will OVERRULE this objection.  He said that is the last one.

(Bench conference terminated.)


THE COURT:  Ask your question.

BY MR. BLACKBURN:
Q  Dr. MacDonald, do you recall the last question or would you like for me to repeat it?
A  You had better repeat it.
Q  From 1971 to January 1975 or the end of 1974, during the time that the grand jury was meeting, is it a correct statement that you had sexual relations with a number of girls?
A  With several, yes.
Q  Dr. MacDonald, suppose the jury should find from the evidence that Type B blood, the same type as yours, is found in only one place on the blue pajama top belonging to you.  Do you have any explanation for that, sir?
A  No; just pure conjecture.

MR. BLACKBURN:  Just a moment, Your Honor.

(Pause.)

BY MR. BLACKBURN:
Q  Dr. MacDonald, yesterday on direct examination, you were shown photgraphs of some drawings, do you recall that?
A  That is correct.
Q  Some that were done in 1970.  And when was the latest group done, sir?
A  In June of 1979.
Q  Why was it necessary to do, if you know, a second set of drawings?
A  I think we had a better technique and a better artist, and we were able to get more detail through lengthy, more professional type sessions.
Q  Well, I noticed in one of the recent drawings that there was a cross around one of the fel- lows?
A  That's correct.
Q  That was not around there on the original drawings?
A  That is correct.
Q  Why was that not around on the original drawings?
A  Because with the Identokit it was never asked.  The specific question was never asked.  I had never really offered it, did not think it was that important.
Q  So, you just didn't think of it until 1979?
A  No, I thought of it; but it came sharply back into focus in 1979.
Q  Were you or anyone working with you in the drawings--the second set of drawings in 1979
--given photographs of either Mr. Mazzarole, whom we have heard mentioned in court, or of Helena Stoeckley?
A  Absolutely not; but I think I probably should explain about the mechanism of doing the drawings.
Q  Certainly.
A  To clear up, you know, your confusion.
Q  I am not confused.  You go right ahead.
A  The drawings were done in a physician's office in Los Angeles.  The artist who did the drawings was a police artist for the Los Angeles Police Department and for the FBI office in Los Angeles.
   The questioner was an FBI agent of 28 years' experience, and I was under hypnosis from the physician and the FBI agent.
   And we had some recall under hypnosis that was not available to us before.
Q  Now, this second set of drawings was done after you had seen the photograph of Helena Stoeckley, was it not?
A  The one that I had seen in Mr. Woerheide's hand in 1974?
Q  Well, any of them?
A  Yes.

MR. BLACKBURN:  Just a moment, Your Honor.

(Pause.)

BY MR. BLACKBURN:
Q  Dr. MacDonald, let me show you Government Exhibit 608(a), purporting to be the blue pa- jama top.  Suppose that the jury should find from the evidence that one, there are approxi- mately 17 puncture holes in the back of that pajama top, and secondly, that you had no in- juries, puncture or otherwise, in your back.
   Do you have any explanation for that?
A  Well, I know why I don't have any puncture wounds in my back.  I was being stabbed from the front.
Q  With respect to my question, sir, do you have any explanation for how those holes got in the back of that pajama top?
A  Just that it had to have been when it was around my wrists and hands and fending off blows.
Q  Would your answer be the same with respect to the number of holes--over 30 more in this right general area of the pajama top?
A  That is correct.
(Pause.)
Q  Dr. MacDonald, suppose the jury should find from the evidence that Colette MacDonald was beaten and stabbed a multiple number of times, that Kristen was stabbed a number of times, and that Kimberly was stabbed and beaten a number of times.
   And suppose, sir, that the jury further finds that the injuries that you sustained were not consistent in degree of seriousness that they sustained, and that you are quite obviously still alive.  Do you have any explanation for that?

MR. SEGAL:  Your Honor, that is OBJECTED to as argumentative.  That is not a question at all.

THE COURT:  I will SUSTAIN the objection to that question.

BY MR. BLACKBURN:
Q  Dr. MacDonald, should the jury find from the evidence that what has come in the Court- room to become known as the FBI reconstruction of the blue pajama top, suppose the jury with respect to that, should find from the evidence that the 48 puncture holes in your blue pajama top correspond or match up with the 21 puncture holes in Colette's chest: do you have any explanation for that?
A  No.

MR. BLACKBURN:  Your Honor, that concludes the Government's Cross-Examination.

THE COURT:  Any Redirect?

MR. SEGAL:  No, Your Honor.  The Defense has no further questions of Dr. MacDonald.

THE COURT:  Call your next witness.

(Witness excused.)

MR. SEGAL:  In that regard, as far as scheduling matters, may counsel see the Court at the Bench, please?

THE COURT:  Yes.


B E N C H  C O N F E R E N C E

MR. SEGAL:  We have Dr. Neal on the way, Your Honor.  He was just served this morning.
We just got his phone call.  The U.S. Marshal found him, but he is coming 6,000 miles.  We will not have him until Monday.  We have one or two other witnesses also who are not here today.  We have no further evidence that I know of at this time except to offer again the reading of the testimony of Mrs. Thoesen from the 1970 Article 32.  She is the woman who just gave birth to a baby by Caesarean Section and could not be here herself to testify.
Otherwise, we have no further evidence ready to go at this time.

THE COURT:  How about Stoeckley?

MR. SMITH: Maybe the Government would like to call her.

THE COURT:  You do not?

MR. SMITH: At least at this moment, we do not.

THE COURT:  Well, now, listen, enough of the thing is enough, Wade.  If you are going to ever call her, you call her right now or I am going to release her from her subpoena.

MR. SMITH:  Judge, I understand what you are saying.  Let me just say this: that woman made the most outrageous statements to a lady at the hospital when she got her nose fixed that you have ever heard.

THE COURT:  They could not be any more outrageous than the ones she has made.

MR. SMITH:  They are.  They are more outrageous.  They are more incriminating, and, Judge, we don't know what she is going to do.  We don't know what she is going to say.

THE COURT:  Well, call her.

MR. SMITH:  We don't want to.

MR. BLACKBURN:  Don't say that.

MR. SMITH:  We don't want to do that and waste the Court's time, but we have a feeling that the chapter on Helena Stoeckley may not be over.  We don't want to call her unless there is something for her to say.  There may ultimately be something.

MR. MURTAGH:  That doesn't change the Court's previous finding as to her mental state.  I think we should not go to the wire or to the jury for that matter with Helena Stoeckley still lurking in the wings.  I think they have had ample opportunity to put her on.  I think this is about the third time that it has come up, "Are you going to put her on or not," and, I think, Judge, that we are entitled--everybody is entitled--the Court, the jury, and all concerned-- that we don't have to sit on the edge of the chair and wonder whether Ms. Stoeckley is go- ing to have another hallucination.

THE COURT:  Why would you, if you are so confident about Helena, why would you be sitting on the edge of your chair?

MR. MURTAGH:  Judge, I don't know what she is going to say.

MR. SMITH:  Of course not.

THE COURT:  Well, if I am any judge of witnesses at all, no one besides the Almighty Himself will know until she has said it.

MR. SEGAL:  Your Honor, I don't think it is any of the Government's business, as long as we obey the law, with what we do with our witnesses.  Your Honor has never really been in- formed by the Government how they flew in witnesses 10,000 miles round-trips--

THE COURT:  (Interposing)  Don't tell me all that stuff.  Listen, I am not caring whether he wants her called or not.  The only thing I am caring about is you have got a witness here that you have had all the whole week.  I have been paying a lawyer to sort of caddy for her at Government expense, and I am at the end of my rope with that.

MR. SMITH:  I will say this, Judge.  The Defense doesn't have much money, but we will reim- burse the Government for any attorney's fees that may be required to keep Helena Stoeckley here until Monday.

MR. SEGAL:  That is right, Your Honor.  We will agree to that.

MR. MURTAGH:  I don't see how you can do that.

MR. SMITH:  The more the Government complains about her being here, the more interested we are in her.  If they would stop talking about it, we might lose interest.

THE COURT:  He thinks you are afraid of something.

MR. SMITH:  I do.

MR. MURTAGH:  What I am afraid of is another set of witnesses like Jane Zillioux and going through this whole number another time.

MR. SEGAL:  Your Honor will handle that if we ever should come to that juncture.  I don't think the Government need anticipate any more about this matter.  Their anticipation has largely been, as far as what we were doing, not terribly correct.

THE COURT:  How much longer will it take the Defendant to finish putting on his evidence?

MR. SEGAL:  No more than half a day and we could conceivably rest.

MR. BLACKBURN:  Right now, the Government has very little rebuttal.

THE COURT:  Hold just a minute.  This is just scheduling.

(Discussion off the record.)

(Bench Conference terminated.)


THE COURT:  You'll never believe where they said the next witness is.  He is in an airplane somewhere between here and Texas, with the upshot being that since this previous witness' testimony was somewhat shorter than had been anticipated, they don't have another witness right now.
   They have told me that early Monday morning they can complete the testimony in the case.  Since we have to go over anyway, I am going to let this jury go and give you a little bonus this afternoon.
   I ask you, please, to be back Monday morning at 10:00 o'clock, and in the meantime, do not discuss this case with anyone.  Don't let it be discussed in your presence.  Don't read, look at, or listen to anything about it, and keep open minds about it.
   You have not heard all the evidence in the case yet.  Following that, there will be the ar- guments of counsel and the instructions of the Court, so it is imperative that you keep open minds about it.
   You have just been such a good jury that it would be most disappointing if anything should happen to mar the record you have made up to now.  It is just beautiful, so I am going to let the jury retire now.  Have a good weekend, a safe trip home and back, and we will reconvene Monday morning at 10-00 o'clock for the jury.

(Jury exits at 2:27 p.m.)

THE COURT:  Anything else to come before the Court this afternoon?

MR. SEGAL:  No, Your Honor.

THE COURT:  Does the Government have anything else?

MR. BLACKBURN:  No, sir.

THE COURT:  Take a recess until Monday morning at 10:00 o'clock, please.

(The proceeding was adjourned at 2:30 p.m., to reconvene at 10:00 a.m. on Monday, August 27, 1979.)

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