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1979 JEFFREY MACDONALD CASE TRIAL TRANSCRIPT

August 9-10: Shirley Green (FBI)

(Whereupon, SHIRLEY GREEN was called as a witness, duly sworn, and testified as follows:)


D I R E C T  E X A M I N A T I O N  12:35 p.m.

BY MR. MURTAGH:
Q  Please spell your name for the reporter.
A  The full name?
Q  Yes, please.
A  S-h-i-r-l-e-y  G-r-e-e-n.
Q  Ms. Green, what is your occupation, please?
A  I am a physical science technician in the Microscopic Analysis Unit of the FBI Laboratory.
Q  Okay, Ms. Green, could you either speak up a little bit, please, or lean towards the micro-phone.  Let me ask you: have you ever testified before in court?
A  No, sir.
Q  Are you a little nervous?
A  Yes.
Q  How long have you been employed by the FBI?
A  For over 28 years.
Q  And in the Microscopic Analysis Unit?
A  Over 25 years.
Q  Now, let me ask you: what is your educational background, please?
A  I received a Bachelor's degree with a chemistry major from McMurray College in Jackson-ville, Illinois.
Q  When did you get that, please?
A  1950.
Q  1950.  Okay, have you taken any refresher courses since 1950?
A  Yes; I have taken a few refresher courses in subjects relating to my work, including in-service--
Q  (Interposing)  Excuse me.  Would you explain to the jury what the term "in-service" means?
A  It's just--we have refresher courses in the laboratory or courses to keep you informed of updated materials in the field.
Q  Would it be accurate to say that "in-service" is the FBI's terminology for continuing educa-tion?
A  Yes.
Q  And where are these courses given?
A  At the Bureau and also at the training academy down at Quantico, Virginia.
Q  Do you attend any other seminars or lectures at all?
A  Yes; when I have the opportunity, I try to.
Q  Now, would you please tell us what the nature of your work is?
A  Well, I examine evidence in federal cases concerning hairs, fibers, fabrics, and related items.  I deal mainly with the identification and comparison of fibrous materials which includes the comparison and matching of fabrics, tapes, cordate, other related items; the stab holes, knife holes; other types of tears, cuts, stitching holes in fabrics.
    I spend much of my time assisting the Special Agent Examiners in their examinations.  I've spent a lot of time in the training of laboratory technicians and the Special Agent Examiners.
I teach class at Quantico, Virginia, which concerns the identification and comparisons of tex-tile fibers and fibrous materials.
    I conduct some studies and prepare materials for use in the Microscopic Analysis Unit and at the fiber classes at Quantico.
Q  What portion of your work day is devoted to this type of work, please?
A  All of it.
Q  Have you received any specialized training in this field in the FBI?
A  For several years I worked in a trainee capacity under the qualified experts in the Micro-scopic Analysis Unit.
Q  Is a fair amount or a great deal of clothing submitted to the FBI Laboratory for examina-tion?
A  Yes, sir.
Q  And from what sources do these items of clothing come?  Let me rephrase that.  Are we talking only about Federal cases or State cases?
A  From all over--both Federal and State.
Q  And is the FBI Laboratory available to any police department or investigative agency in the country?
A  Yes; I believe we work both criminal and civil cases for the Federal government and U. S.
attorneys and criminal matters for the state, county.
Q  Could you give us some examples of your work involving the examination of holes, cuts, or tears in fibers, stitching and things like that in fabrics?
A  Some examples of other cases, or different cases?
Q  The types of cases, yes.
A  The types of cases were, for instance, if a label patch or some sort of thing were torn from a garment, or a garment were torn apart at the seam, it is sometimes possible to posi-tively identify one portion as having one seam stitched to the other portion.
    This would be by aligning--it would be from the pattern, the stitching holes, and of course, it would always help if you had a fragment of the other material, patch, or stitching hole on the other side to make a positive identification that way.
    But sometimes it is possible to positively identify it from the stitching, but not in all cases.
I remember one case where belt loops were torn from a garment and we could positively say that those belt loops came from that jacket.
Q  How about bullet holes?
A  Bullet holes--we do the alignment.  Sometimes they want to know if two garments were worn at the same time the victim was shot, and we can line up the bullet holes.
Q  What two types of garments would you be talking about?
A  Say a t-shirt or undershirt, plus another shirt, or a jacket over a shirt.
Q  How many, if you can recall, approximately how many cases like this have you worked on in your 25 years in the Microscopic Analysis Unit?
A  I would say thousands.
Q  Ms. Green, directing your attention to the fall of 1974, were you employed then at the Microscopic Analysis Unit?
A  Yes, sir.
Q  If you could tell us, please, where was your particular desk or laboratory bench located at that time?
A  I believe that was in the attic of the old building.
Q  When you say "the old building," are you referring to the Department of Justice Building?
A  Yes, sir.
Q  Okay.  Did there come a time in the fall of 1974 when Mr. Paul Stombaugh moved into your office space, so to speak?
A  Yes, sir.
Q  Did you assist him in any fashion, as an aside, in conducting laboratory examinations in this case?
A  Yes.
Q  Ms. Green, at this time, I direct your attention to the photograph there, which I believe is Government 787(a).  Let me just hand it to you and let you take a look at it.  Do you recog-nize that photograph?
A  Yes.
Q  Okay.  Do you recognize the items depicted in that photograph?
A  The Q12 pajama top.
Q  Q12.  Is that the pajama top?
A  Yes, this pajama top.
Q  And how about the probes?
A  Yes, sir.  Those probes, we had made up to demonstrate the alignment of the holes.
Q  Okay, let me show you Government Exhibit 1140 and ask if you recognize that?
A  Yes, these are the probes.
Q  Did you either prepare those or were they prepared under your directions?
A  Yes, sir.  I believe we had someone make up the metal part and I added the paper tabs.
Q  And are the numbers on those paper tabs your own?
A  Yes.
Q  Now, Ms. Green, with respect to the reconstruction, as it has been termed, depicted in that photograph, did you actually do that?
A  Yes.
Q  Do each one of the 21 probes pass through the holes as numbered on the little white tags?
A  Yes.
Q  Would you place that on the easel, please?

(Witness complies.)

MR. MURTAGH:  Your Honor, at this time, we would mark Government Exhibit 1142.

(Government Exhibit No. 1142 was marked for identification.)

BY MR. MURTAGH:
Q  Ms. Green, let me show you Government Exhibit 1142 which is a chart, also containing a photograph--an enlarged copy--of which is in evidence.  764(c), I believe, is the one that is in evidence.  This one contains 764(b).  Yes, that is correct.  764(c) is the one that is in evi-dence.
    Now, Ms. Green, let me ask you what this chart reflects?
A  This shows the patterns, the holes in the pajama top--
Q  (Interposing)  Let me just interrupt you there.  With respect to this chart, let me describe, if I may further, that the chart has various numbers which appear to go from 1 through 48; is that correct?
A  Yes.
Q  What do those numbers correspond to?
A  Those numbers correspond to the puncture holes in the pajama top.
Q  Are the puncture holes represented by a dot next to the number?
A  Yes.
Q  And are they depicted accurately on this chart, with respect to Q12, the pajama top?
A  Well, it isn't drawn exactly to scale.  It is an estimate as far as the pajama top itself, but it is pretty accurate as to locations.

MR. SEGAL:  Could we have it marked on the chart that it is not to scale, then, please?

THE WITNESS:  No, it is not exactly to scale.

THE COURT:  The record will show that.

MR. SEGAL:  All right, Your Honor.

BY MR. MURTAGH:
Q  With respect to the numbers, are there little arrows appearing?
A  Yes.
Q  Let me say to you, with respect to the numbers 1 through 12; are those color-coded in any way for the record?
A  Yes.
Q  And how about, it looks like 13 is the lowest number and 45 is the highest number; and are they color-coded?
A  Yes.
Q  Okay.  And how about this group of three up here, 30, 31, and 32; are they color-coded?
A  Yes.
Q  We have another group over here which the low number is 20; is that color-coded?
A  Yes.
Q  We have a last group here--excuse me, the next to the last group--in which the low num-ber is 18; is that color-coded?
A  Yes.
Q  And we have a single hole up here, and by "up here" I am referring to, I believe it has been described as the upper left shoulder area of the back of the left sleeve, that is 48?
A  Yes.
Q  Now, Ms. Green, in aligning, in doing this reconstruction, what relationship does the color coding of the numbers as presented in the chart have to the way these probes were aligned in the pajama top?  Do you understand my question?
A  I am not exactly sure.
Q  With respect to one group, which is color-coded in red, and specifically within that group, with respect to numbers 1, 2, and 3, what relationship did those holes have to each other?
A  One, two and three would align up to make one thrust.
Q  I see.  And if I can find that on this other chart here, you have the flag number 21 and below that the numbers 1, 2, and 3.
A  Yes.
Q  So, my question is: does this Chart 1142 reflect the location of the holes 1, 2, and 3 as depicted on Government 787 by probe 21?
A  That's right.
Q  Did you fold those holes in that fashion?
A  Yes.
Q  And did you put a probe through?
A  Yes.
Q  Now, let's take another group--4, 5, and 6--and you did the same there?
A  The same thing.
Q  How about 10 and 8?
A  Yes; the same thing.
Q  Is that the same with respect to all of these groups in which you see an arrow?
A  Yes.
Q  Now, and I take it you folded the pajama top in what fashion?
A  It was folded with the right sleeve folded inside-out, the inside of the pajama top facing upward, the right collar area over to the right, which would be to the victim's left, according to how you are looking at it--over to the right, and the right shoulder seam is over to the right, and the rest of the sleeve is coming over to the left.
Q  And in this fashion, were you able to align all 48 holes?
A  Yes.
Q  Now, let me draw your attention here to Government Exhibit 764(b), the small photograph which appears on Government Chart 1142.  Let me turn this around a little bit, and ask if the jury can see that.  Now, with respect to the color-coded areas as represented on the pajama top that is depicted on the chart, is there a relationship to the numbered areas on the pho-tograph which is in evidence as the chest of Colette MacDonald?
A  Yes.
Q  And what is that relationship, please?
A  Well, all of the holes in the left center area of the back panel--
Q  (Interposing)  Would you please come down and point to the areas?  Let me find the pointer.
A  The holes in the center or the left of center area of the back panel--
Q  (Interposing)  Would you describe the color for the record, please?
A  With the colors in orange would correspond to these five holes marked orange, numbers 17 through 21.
Q  Now, let me ask you: would it be accurate to say, then, that holes 1 through 12--
A  (Interposing)  Yes.
Q  --can be aligned with five probes?
A  That's right.
Q  And the grouping that you get when you align them, in other words?
A  The grouping is pointed out by the orange circles around the holes here.  Those would be the bottom holes.
Q  I see.
A  So, when you come through 1, 2, and 3, you end up at 3 on the bottom, and so these--3, 6, 7, 8, and 9 holes in the pajama top would form 17, 18, 19, 20, and 21 in this picture.
Q  Okay, now, Ms. Green, let me ask you: did you start from the bottom hole up or from the top hole down, if you know?
A  To put the probes in?
Q  Yes.
A  From the top hole down.
Q  In putting probes through, did you force any of them?
A  No; these--
Q  (Interposing)  You are talking about 1140?
A  Yes; these probes were approximately the same diameter as the holes in the pajama top so that they could be put through without forcing them.  These are a little smaller probably than the ice pick--the largest part of the ice pick.
Q  Now, okay, so that was done with the group in orange as you described it.  How about the group in--is that yellow--on the chart?
A  Yes.
Q  And would you point out the corresponding area to the photograph of Colette MacDonald's chest?
A  It would be these--
Q  (Interposing)  Would you describe the numbers for the record?
A  It would be number 8, 9, 10, 14, and I believe a number's been left off here which should be 16.
Q  Why don't you put that in here in pen?

(Witness complies.)

Q  And did you do the same with respect to each group?
A  Yes.
Q  Now, please resume the stand.

MR. MURTAGH:  Your Honor, at this time, I wonder if I might move this over so the jury may see it a little better?

THE COURT:  Very well.

(Exhibit shown to the jury.)

THE COURT:  Maybe you should do a third showing down here because these jurors could not see it.

MR. MURTAGH:  Yes, sir.

THE COURT:  This seems to me to be a good breaking point to go to lunch.  We will let the jury retire, and we will come back at our regular hour of 2:30 this afternoon.  Members of the jury, now don't talk about the case.

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

THE COURT:  All right, let's take a recess until 2:30.

(The proceeding was recessed at 12:59 p.m., to reconvene at 2:30 p.m., this same day.)


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

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

MR. BLACKBURN:  Your Honor, before we begin, may we approach the Bench?

THE COURT:  That's a good way to start this afternoon; come on up.


B E N C H  C O N F E R E N C E

MR. BLACKBURN:  Your Honor, it has come to the Government's attention that the advertise-ment which you had ruled upon concerning these four alleged intruders has run again in to-day's paper in both the morning and the afternoon paper in Fayetteville.
    The first time this was done, we did not make an issue out of it in court because we thought we would leave well enough alone, and just not muddy the water.

THE COURT:  I had understood it would be run only once.

MR. BLACKBURN:  This is the second time this had occurred.  We believe, as Mr. Segal told the court, I remember, one time, after the jury had left, that the first artist was not the same as the second artist.  We know who the first artist was, but he is not the man who did these latest drawings.
    We thought we would bring it to the court's attention that we think the running of these advertisements is in direct contradiction of an order of this court.

MR. SEGAL:  Your Honor, I am not under the impression--and we've talked about this--that after we had that hearing that Your Honor was prohibiting us from running them.  I would say, Your Honor, we always had the intention of running it twice.  We had the procedure to run it a Thursday and a Sunday.

THE COURT:  How did I get the impression it would on be run once?

MR. SEGAL:  I beg your pardon?

THE COURT:  How did I get the impression it would only be run once?

MR. SEGAL:  I am not sure.

THE COURT:  Something Wade Smith said?  I am pretty sure he was the one that said it.

MR. SMITH:  If Your Honor pleases, that is not my recollection about it.  He may have said that.

THE COURT:  I was also under the impression that some kind of final clearance was going to be obtained before it was run the first time, but maybe my recollection is faulty about that.

MR. BLACKBURN:  That is correct.  We believe that the first time it was run was in contradic-tion of that order of the Saturday preceding court.  The Government chose not to make an issue out of it since it was stopped.

THE COURT:  There are two things involved as I see them.  First, what is the duty and re-sponsibility and authority of the court to prohibit such a thing.

MR. BLACKBURN:  Well, as we told the court, on the Saturday preceding the Monday that court began, that we would object, of course, to the introduction of those photographs without a qualifying witness who would authenticate those.
    We were simply asking that we be given--

THE COURT:  (Interposing)  I understand--you mean these drawings?

MR. BLACKBURN:  Yes, sir.

THE COURT:  That somebody is going to seek to introduce those in evidence?

MR. SEGAL:  If and when that should happen.

MR. BLACKBURN:  Your Honor, it happened at the Article 32.

MR. SEGAL:  They would be authenticated if we do that, Your Honor.  I don't know what the advertisement has to do with what we offer in court.  Certainly we will try to do whatever is necessary to authenticate them, if I think it is necessary to use them.

THE COURT:  You will tell them who the artist was?

MR. SEGAL:  Certainly.

THE COURT:  Just tell him right now who he is.

MR. BLACKBURN:  We want the name and address of the artist.

MR. SEGAL:  If we decide to use them in court, that is our position.  At this point, I will tell you, it is not at all certain that we will do that.

THE COURT:  Well, he needs to know in advance.  If you decide at the last moment, and say, "Okay, I am going to do it," then the name and address won't do him any good.  He will get that from the record when you ask him the question.
    What is the objection to telling him right here and now?

MR. SEGAL:  I wrote to Mr. Blackburn a letter fully stating what our position was.  I would be glad to give him the name and address, which was in the letter I wrote a week and a half ago.  But this man was my employee, and under the attorney-client privilege that he was not free to interview him unless he had my permission to do it.

THE COURT:  He has not said anything about interviewing him.

MR. SEGAL:  I wrote him that letter a week and a half ago.

THE COURT:  Well, he doesn't have the name and address.  He just wants the name and address.

MR. BLACKBURN:  The reason I did not raise it again was because the ad had not been run again.  But now the ads have been run again and that is, in our opinion, a direct contradic-tion of the Judge's order.

MR. SEGAL:  There are two separate issues here.  One is whether you think the ad and I think the ad is in contradiction to the Judge's order.  That is one issue we can discuss, if you like.  My recollection is that Your Honor, when Mr. Smith said it at our Saturday pre-trial con-ference held on the 13th, "Your Honor has banned us from doing that," you said, no, you had not done that.  You were very specific.

THE COURT:  I believe I either said this or I would have ruled if there had been any sugges-tion that you were going to do it in advance of the selection of the jury, I would have prohib-ited it.

MR. SEGAL:  That's right; I agree with that.

THE COURT:  Just like I put a damper on these press conferences--which at least you, may-be you do too, maybe; I know all of you have been quoted in the paper--prior to the trial.

MR. SEGAL:  We agree to that.

THE COURT:  Now, I am having some problem with that as to whether or not that comports with the professional responsibility requirements.  For whatever it is worth, I say this to both of you: when lawyers give interviews with the press, it has been my observation over the years that lawyers who are entirely confident of their position and who believe in the cor-rectness of their cause, eschew that kind of thing.
    To me, it just telegraphs some weakness.  As far as the jury is concerned, I am hoping that they are observing their oath and are not reading anything.  Now there is always the possibility, though, that they will, therefore I find that while I don't want to muzzle anybody, I don't see why we can't stick to our knitting there in the Courtroom and let the press hear and see everythign that I do.  That is all that I see and hear and read about it.
    I don't give a damn what appears in the paper, myself.  But when it is on the front page, they can't escape it.  They had on yesterday's front page quotations, verbatim, as to how the defense was going to destroy some witness--this Stombaugh, probably, and all that stuff.
    Of course, as far as the ad is concerned, I don't know whether you were present or not, but just the way it struck me as being an exercise in futility; it must have some background value other than the prospect that somebody would ever turn up this late date that would know anything about this, who would not be subject to be utterly destroyed by a competent cross-examination.
    But here again, I don't run lawsuits for them.  I sat out there 34 years and I saw a lot of judges that came to town and professed to know more about my case in two hours than I had been able to learn in three or four years of living with it.  So, I wouldn't do that.
    I will let you run your case, but for whatever it is worth, I'll say to both of you that I think that running ads and talking to newspapers while the trial is in progress as to what you are going to do with your evidence and so forth, I think it may come very close to transgressing the rules of professional responsibility in insuring a fair trial for both sides.
    Here again, I don't want to drag up an issue.  We have enough dead dogs that we have beat in this case already, and I don't want to do that.  But for whatever value, if any, that it may have, if you are interested in knowing how this court feels about it--I have just told you.

MR. SEGAL:  I, for one, appreciate what Your Honor says and then I do not take what Your Honor says lightly, by any means.  I want to just make two fact representations, Your Honor.
    It has always been our intention, because of my prior experience with this case, to run the ad in the Fayetteville newspaper only twice, because we knew that there were things to be learned.  I will tell Your Honor that in fact, running the ad has produced material matters for us which will, in due course, come out in court.
    I am also aware that when facts come out late, one may question it.  In each and every instance, the explanation why, in my own judgment, is worthy of the jury to decide whether they think it is credible or not.  So I don't apologize for people coming up late in the day.  There are very good reasons.
    Secondly, the ad in itself says nothing more than that it wants information about these people who resemble this in connection with the 1970 murders.  It does not say anything be-yond that.  It gives the name of our investigator, and that is all that it asks.
    Because we did, in fact, develop some information that is very valuable, we want to com-plete--we were advised by those who have better knowledge than I do that the two inser-tions would be valuable.  That is what we have done.
    I do not have any reason at all to believe that we will be running beyond--it is in Thurs-day's paper, whatever paper it is now.  That is the last time because we are now too close to the defense case.  We won't have the energy to pursue anything beyond that.  We are following all the leads we have got.
    Now on the second matter, in regard to any press conferences--I appreciate what Your Honor says.  We tried, through the pre-trial, to honor and respect that.
    We do get lots and lots of inquiries here in court and papers.

THE COURT:  I used to get a lot.  But I don't get any anymore.  And the simple answer is this: I do not give press interviews.  I do not hold press conferences.  You are welcome to come; sit as close to the front seat as you can at the witness stand, and report verbatim everything that comes from anybody's lips in this courtroom.
    It is public information.  They can have it and do whatever they want to.  If I am good, indifferent, or stupid, and they want to report it, as long as I am here in this courtroom, they are going to do it.  But, I am not talking to any of them afterwards.
    One young fellow hollered at me out here the other day and I stopped and explained it to him.  He was from New York.  I said, "Perhaps you didn't know."  He said, "Yes, I did know it; but I have to tell my managing editor, or somebody, that I tried."
    I said, "You tell him that you made a nice try, but with the same results."

MR. BLACKBURN:  Before we go, our concern is not running the ad again, but we did think--

THE COURT:  (Interposing)  If it is already run, that is a fait accompli.

MR. SEGAL:  I should tell you about that.  Mr. Blackburn had been willing to give Mr. Smith and I advance notice in several instances several days in advance of any witnesses.  We will most assuredly reciprocate fully and completely in that regard.  We will give them advance notices of our witnesses so they can get ready and don't have to run around like chickens with their heads cut off.
    I will tell you, as a matter of fact, at the end of today, who our witnesses will be tomor-row.

MR. BLACKBURN:  Our only concern in bringing this to the court's attention was not to beat a dead horse, certainly, but just for the record to indicate that we still had not gotten the po-lice artist.

THE COURT:  If you don't get a conviction, maybe you can appeal.

MR. MURTAGH:  One other matter.  The Government, at this time, would renew, or reassert, its motion on the psychiatric testimony on the issue of whether it comes into the case or not.

THE COURT:  Well, now there is a motion outstanding in writing on that, that has never been ruled on.  Is it probable that we will reach that this afternoon?

MR. MURTAGH:  Your Honor, we are at a juncture where if the psychiatric testimony is not going to come in, then perhaps we might rest either late this afternoon or early tomorrow morning.
    If it is going to be an issue in the case, and to date the Government has offered no expert testimony that this guy is the type of defendant who would commit that type of crime--

THE COURT:  (Interposing)  How long do you think you will go this afternoon?  I can't see getting through with this witness before 5:00 o'clock.  Mr. Segal might have two questions to ask her.

MR. MURTAGH:  I don't know.

MR. SEGAL:  I do have some questions, but it will not in any way be as long as Mr. Stom-baugh, Your Honor.

MR. BLACKBURN:  What we are getting at, Your Honor, we would like if possible to either have a ruling or a hearing or something on that question prior to the Government's resting its case.

THE COURT:  I will do that for you, but maybe I want to hear some more about it.  What we can do is to go as far as we can this afternoon.  Let the jury go home, and then I will hear you until suppertime.

MR. MURTAGH:  Your Honor, the logistical problem that is involved is the defendant was ex-amined by army psychiatrists in 1970.  He was not examined by forensic psychiatrists, and we anticipate that since he was examined by a forensic psychiatrist for the defense, that that would be an issue.
    We are prepared to offer testimony both from the army psychiatrists and from forensic psychiatrists and psychologists.  However, the forensic psychologist tells us that the Ror-schach Test that MacDonald took in 1970, for the Defense--which was furnished to the Ar-my--is inadequate.
    I don't know the specifics, but apparently he didn't react to the ink blots or whatever.  In that regard, Your Honor, if psychiatric testimony is going to be offered by the defense, we would move the court to order the defendant to submit after court, perhaps on Monday, to any and all psychiatric or psychological tests.
    I don't think it would be lengthy, they are what the experts would require.

MR. SEGAL:  May I make a suggestion, Your Honor?

THE COURT:  You are not going to offer any such evidence as that?

MR. SEGAL:  That Rorschach test?

THE COURT:  You are not going to offer any psychiatric evidence?

MR. SEGAL:  We may, Your Honor.

THE COURT:  You may.

MR. SEGAL:  I have ample authority on the point.  Let me make a practical suggestion.  If the Government is concerned that somehow, because we may offer this testimony in this case, that somehow that has placed the burden on them in their case-in-chief to put on something to the contrary.
    I will be glad, at the conclusion of today, in the presence of the defendant and with his acquiescence, to put on the record a waiver of any obligation of the Government to produce in their case-in-chief any such evidence.
    I have here a substantial memorandum of law on our right--if we decide to go ahead with that--to produce it.  It is not something Your Honor can rule from the Bench.  There are at least three different possible grounds that if we do it, Your Honor has to consider our right to do it.
    But at the immediate point, we would like to get to the point where we can close the Government's case because we have witnesses waiting.  We cannot hold them indefinitely.  To have an argument on a legal motion when we have been told repeatedly the Government is going to finish this week and we have got to put people on who have been sitting around, Your Honor, it seems to me is the wrong way to do it.  As I said before, I am certainly agree-able--I don't think the Government has any burden in its case-in-chief in this regard.

MR. MURTAGH:  Your Honor, we just don't think the testimony is admissible.  Period.

THE COURT:  Okay, but his suggestion is that you can resume your case-in-chief even after he has put it on, rather than having to come just from a rebuttal standpoint.

MR. MURTAGH:  Yes, Your Honor.  If we have to do it, that is something we can live with.  It does not change, Your Honor, the fact that if there is going to be psychiatric testimony, we have got to have him examined at the earliest possible time.

MR. SEGAL:  Then make a motion in writing, for God's sake.  These are serious questions.  Why don't you put it in writing with some authorities for it?  I want to see what the result is, Your Honor.  I may agree or may disagree.  I won't know until I see it and read it.

MR. MURTAGH:  Your Honor, the authorities cited in our original written motion as to why this should not be an issue in the case, we would stand on.  Now, if it is to be an issue in the case, the court has ample authority to order the defendant to submit to psychiatric testing.

THE COURT:  Well, you would not contest that, would you?

MR. SEGAL:  That what, Judge, that they have a right to have him examined?  I want to think about it, Your Honor.  I probably would agree with it, but I will want to think about it and talk to Wade Smith about it.

THE COURT:  I think you ought to just go on and set up and prepare to have him examined at the first available time.

MR. MURTAGH:  Your Honor, we will bring our people down Monday if the defendant will be available.

MR. SEGAL:  I don't think he is going anyplace else.

MR. MURTAGH:  I don't want to get them here--

MR. SEGAL:  (Interposing)  Why don't you talk to us about planning it, if you want to do that.
But I do suggest--please put it in writing.

(Bench conference terminated.)


THE COURT:  All right, I think we have had the jury long enough while we talk about procedu-ral matters and things.  These are not matters with which you are in the slightest concerned.
They have to do with scheduling more than anything else, members of the jury.
    What I am going to do is let you hear testimony of the stuff you are interested in.  If I have to hear any more of that, I will let you go home and you won't have to wait around.
That is the way I will resolve this issue.

MR. MURTAGH:  Your Honor, we have some more questions for Ms. Green.

THE COURT:  All right.  You would not limit it to just two, would you--I mean, two of your kind.

MR. MURTAGH:  Two of my kind, with A's and B's; yes, sir.

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


D I R E C T  E X A M I N A T I O N  2:50 p.m.   (resumed)

BY MR. MURTAGH:
Q  Ms. Green, I believe before the break, or luncheon recess, rather, I had asked you with respect to Government chart 1142 whether this was the methodology you used, as illustrated graphically on this chart, in doing the reconstruction which is illustrated in Government
787(a); do you remember that?
A  Yes.
Q  I believe you testified that it was, is that correct?
A  Yes, that is correct.
Q  Have you ever had occasion to redo this reconstruction at any time?
A  Yes.
Q  Did you employ the same realignment procedure in redoing the reconstruction?
A  Yes.
Q  The same probes through the same holes?

MR. SEGAL:  May I ask a suggestion that he not lead this witness.  We are here to hear this witness' direct testimony.

BY MR. MURTAGH:
Q  Were you ever able to align all 48 holes, or all the holes in the pajama top, with 21 probes going through any other holes?  Do you understand my question?
A  Yes.  No, I was not.  It could probably over--

MR. SEGAL:  I'm sorry, I couldn't hear your answer.

THE COURT:  Yeah, you will have to talk a little louder, please.

THE WITNESS:  I'm sorry.  It took over a week just to find one solution, to find this solution.

BY MR. MURTAGH:
Q  Did you ever find another solution?
A  No.

MR. MURTAGH:  Your Honor, at this time we would move in Government 1142 and ask that it be received.

(Government Exhibit No. 1142 was received in evidence.)

MR. MURTAGH:  Your Honor, we would also offer the smaller photograph on the chart, 764(b).

THE COURT:  All right, sir.

(Government Exhibit No. 764(b) was marked for identification and received in evidence.)

MR. MURTAGH:  Your Honor, at this time we would mark Government Exhibit 1070, which con-sists of a series of eight photographs which we all also offer enlargements of.

(Government Exhibit No. 1070 was marked for identification.)

BY MR. MURTAGH:
Q  Ms. Green, let me show you Government Exhibit, marked for identification as 1070, ask you if you recognize the photographs on that chart?
A  Yes.
Q  Okay, and with the pointer, would you please step down and tell us what photograph one depicts?
A  Photograph number one is where I realized the 48 holes of the pajama top, with 21 thrusts
--I believe using pushpins with numbers on the tops, and forming the 21 holes on top of this box with graph paper over it.

MR. MURTAGH:  Your Honor, at this time the Government--

THE COURT:  (Interposing)  One moment, please.  We have a volume trouble with your back turned to him, Ms. Green.  You must talk a little louder.  It is all right to look at what you are talking about, but just get the volume up some.  He has to take it down.

THE WITNESS:  Okay.

BY MR. MURTAGH:
Q  Ms. Green, would you repeat your answer for the reporter?
A  Photograph number one is the pajama top, refolded in the manner in which it was found on the victim, placed over a box with a piece of graph paper on it, with 21 pushpins put through, making 21 thrusts into the box.
Q  Now, Ms. Green, would you describe with respect to the left and right sleeves of the paja-ma top which portion is where in photograph number one?
A  The left sleeve is coming out here on the side with the left panel.  The right sleeve--shoulder--is right in here, and the right sleeve is going down here to the cuff.
Q  Is the right sleeve right side out or inside out?
A  Inside out.

MR. MURTAGH:  Your Honor, at this time the Government would mark Government Exhibit 1143 which consists of 21 pins numbered sequentially; Government 797, a box with a piece of graph paper on it; Government 798, an additional piece of graph paper and Government 1144, an additional group of 21 pins.

(Government Exhibits 1143, 797, 798 and 1144 were marked for identification.)

BY MR. MURTAGH:
Q  Ms. Green, let me give you Government Exhibit 797 and ask if you recognize it?
A  Yes.  This was the box.
Q  Okay, which box are you referring to?
A  This is the box which I pinned the pajama top to in photograph number one.
Q  There appears to be some writing by the exhibit tag.  Could you tell us what that is, please?
A  This is the Laboratory number, PCL-208-2-JB-Q12.
Q  Does Q12 refer to Government Exhibit 101?
A  Yes, it does.
Q  Let me give you Government Exhibit 1143, and ask you if those are the pins?
A  Yes, these are the pins that I put through the pajama top.

MR. MURTAGH:  Your Honor, at this time the Government would move to admit Government Exhibit 797 and Government Exhibit 1143, and ask if we may pass them to the jury.

THE COURT:  Very well.

(Exhibits passed among the jury.)

(Government Exhibits 797 and 1143 were received in evidence.)

MR. MURTAGH:  Why don't you resume your seat, please?  Your Honor, may it please the Court, at this time we would mark, while the jury is looking at the exhibit, Government 789(a) which corresponds to Photograph number one on the chart; Government Exhibit 790(a) which corresponds to Photo number two; 791(a) which corresponds to Photo three; 793(a) which corresponds to Photo four; 794(a) which corresponds to Photo five; 796(a) which corre-sponds to Photo six; 792(a) which corresponds to Photo seven and 795(a) which corresponds to Photo eight.

(Government Exhibits 789(a), 790(a), 791(a), 793(a), 794(a), 796(a), 792(a) and 795(a) were marked for identification.)

MR. MURTAGH:  Your Honor, at this time we have offered Government Exhibit 789(a) and seek to publish it.

THE COURT:  Very well.

(Government Exhibit 789(a) was received in evidence.)

(Exhibit passed among the jury.)

BY MR. MURTAGH:
Q  Now, Ms. Green, for the record, with respect to the graph paper on which you placed the pajama top and put the pins through it--did the pins puncture the graph paper?
A  Yes.
Q  Did they leave a pattern?
A  Yes.
Q  Are there any puncture holes that were not made by the reconstruction using the 21 pins?
A  In the graph paper?
Q  Yes.
A  No.
Q  Okay, now.  With respect to Government's Photo number two up there, which I believe, for the record, would be Government Exhibit 790(a).  Maybe for the benefit of the jury, we could hold these up as you are talking.  Do you recognize the photograph which appears in that photograph?
A  Yes.  It is a photograph that Mr. Stombaugh marked the numbers of the puncture holes.
Q  Ms. Green, could you speak up a little bit, please?
A  I'm sorry.  The photograph in this picture is the photograph which Mr. Stombaugh marked with numbers the 21 puncture holes in the victim's chest.
Q  Let me hand you Government Exhibit 786 in evidence and ask you if that is the same pho-tograph.
A  Yes.
Q  And are there 21 areas numbered in that photograph?
A  Yes; there are.
Q  Would you tell us, please, with respect to the left and right areas of the chest depicted there, what numbers appear or how many numbers?
A  There are five numbers on the left chest area and 16 on the right.
Q  Now, I take it--what did you do with respect to that photograph that appears in that photograph?  Do you understand my question?
A  Well, in this particular photograph, it was just laid beside this for--to see the comparison.
Q  Would it be accurate to say that photo number 1 and photo number 2 are exactly the same with the exception that photo number 2 has that additional photograph of the victim's chest?
A  Yes.
Q  And could you tell us, please, what photograph number 3 is?
A  Number 3 would be the same thing as this last one with the exception of a different pho-tograph of the victim's chest.
Q  Okay.
A  An unmarked one.
Q  All right, now, with respect to--is that 764(b)?
A  This photograph here?
Q  Yes.
A  Yes.
Q  Now, with respect to Government photo number 4, what did you do there, please?
A  I took the pajama top off of the box and placed the pins back into the holes that I made so that it just shows the pins--the numbered pins--from the pajama top placed next to the photograph.
Q  Now, let me ask you: are the numbers which appear in photo number 1--that is, the num-bers appearing on the pins--the same numbers which appear in photo number 4?
A  Yes.
Q  Now, would you tell us, please, what photograph number 5 depicts?
A  That has the same pins from the pajama top in the box, and pins have been placed through the puncture holes in the pictures of the victim's breast to show the two patterns.
Q  Now, let me hand you Government 1144 marked for identification and 798 marked for iden-tification and direct your attention to the photograph 764(b).  Now, would you explain, please, what the relationship of those three objects is?
A  This is the piece of cardboard with graph paper on it that I put the photograph on to put these pins through the photograph at the puncture areas.
Q  Now, let me ask you: is the scale the same as between Government Exhibit 764(b), photo-graph of Colette MacDonald's chest, and the scale in Government's photo 1 appearing on that chart, the reconstruction of the pajama top?
A  No; they are not.
Q  All right, now, would you tell us, please, with respect to--perhaps if we could skip down to photograph number 8--would you tell us what that is?
A  That is the cardboard and the pushpins that were where the photograph is pinned to this, and the photograph removed, the pushpins remaining in the areas--in the holes.
Q  For the record, when you say "this," are you referring to Government Exhibit 798, the piece of cardboard?
A  Yes; Government 798 and the pins Government Exhibit 1144.
Q  And did you take those pins and after you removed the photograph, placed them in the same holes?
A  Yes.
Q  And do the numbers correspond?
A  Yes.
Q  All right, let me show you--and if you would, perhaps, show to the jury Government
795(a).  Are you holding that photo right side up?
A  Yes.
Q  And would you describe, please, what appears on the left side and the right side of the piece of graph paper?
A  There are five holes in the left side and 16 holes in the right side.

MR. MURTAGH:  Your Honor, the Government would move in 795(a) and ask to publish it to the jury.

THE COURT:  Very well.

(Government Exhibit No. 795(a) was received in evidence.)

(Exhibit passed among the jury.)

BY MR. MURTAGH:
Q  Now, Ms. Green, with respect to photograph number 7, let me ask you: is that the same piece of graph paper as depicted in photograph number 4, less the insertion of an additional photograph?
A  Yes.
Q  You didn't realign the pins?
A  No.
Q  And is that the same as 792(a)?
A  Yes.
Q  All right, now is that photo--if you might describe for the record--appearing in the bottom part of the graph paper is the laboratory number in Q-12.  Now, you just turned the photo-graph upside down as far as the writing is concerned.  The question is: is the photograph right side up as it relates to the reconstruction?
A  It is now right side up with the writing upside down.
Q  Okay, it's perfectly clear.

MR. MURTAGH:  Your Honor, at this time, we would turn this back so that we can read it and offer 792(a) in evidence and ask to publish it.

THE COURT:  Very well.

(Government Exhibit No. 792(a) was received in evidence.)

THE COURT:  Right side up or down?

MR. MURTAGH:  Judge, I'll let the jury hold it any way they want.

(Exhibit passed among the jury.)

BY MR. MURTAGH:
Q  Okay, now, with respect to photograph number 8--I'm sorry--6, what does that photo-graph depict?
A  That shows both of the--the cardboard box and this cardboard--I don't remember the exhibit number of the box--this exhibit number 798 which is the cardboard from the photo-graph with the pins in the holes.
Q  Does it also depict 797, the piece of graph paper with the identifying number Q-12 on it?
A  Yes.
Q  Now, the two are placed side-by-side in the photograph?
A  Yes; they are.
Q  And are they right side up in relation to each other?
A  Yes; I believe they are.
Q  And let me show you Government 796(a) and ask you if that--
A  (Interposing)  Yes; this is the same photograph.

MR. MURTAGH:  Your Honor, at this time, the Government would move in 796(a), 793(a),
791(a), 794(a), 790(a), and ask to publish them to the jury.

THE COURT:  Very well.

(Government Exhibit Nos. 796(a), 793(a), 791(a), 794(a), and 790(a), were received in evi-dence.)

(Exhibits passed among the jury.)

MR. MURTAGH:  And, if I have not already done so, let me move in Government 798, 1144, 1143, and 797, and 789(a).

(Government Exhibit Nos. 798, 1144, 1143, 797, and 789(a) were received in evidence.)

BY MR. MURTAGH:
Q  Now, Ms. Green, with respect to the two pieces of graph paper, the one from the photo and the one from the reconstruction of the pajama top, and as depicted in photo number six on the chart, which is the Government Exhibit 1070, are the scales the same?
A  Of the graph paper itself?
Q  Yes, is the graph paper scale the same?
A  Yes.
Q  Are the scales the same as between the photo reconstruction and the pajama top recon-struction?
A  I'm not sure if I understand, but the scale would be the same as--with the photograph after it was done, but the photograph is reduced size as to the actual size of the victim's chest; so there's a difference as far as actual size.
Q  Now, Ms. Green, did you observe any grouping with respect to the pins that were placed in the photo reconstruction--well, first with respect to the photo reconstruction?
A  Is there a grouping?
Q  Yes, could you describe any grouping that appears in the photograph, perhaps using the pointer?
A  There is a--from the photograph, there is a grouping of five holes over to the left.  There is a group of 16 over to the right.  Within this grouping there is always a grouping of--three certain ones always seem to group together.

MR. SEGAL:  Your Honor, I am not hearing what the witness is saying.

THE WITNESS:  There is a grouping of three to the left and 16 to the right, and within this grouping there are smaller groups.

BY MR. MURTAGH:
Q  Ms. Green, with respect to--would it be accurate to say there is a sub-grouping on the right grouping, is that correct?
A  Yes.
Q  Okay, what are the numbers of that sub-grouping?
A  Holes 1, 2, and 3 always come in together as a group of three.
Q  Okay, now, you are pointing to the photo reconstruction?
A  Yes.
Q  Okay, does that same sub-grouping appear in the pajama top reconstruction?
A  Yes, it does; 1, 2, and 3 are together.
Q  Are there any other groups which are common to the--or subgroups, rather, which are common to the photo reconstruction and the pajama top reconstruction?
A  Holes 4 and 5 area always exactly--or very close together; and 6 and 7 are fairly close to those, making a group of four.
Q  And does that appear in the pajama top reconstruction as well?
A  Yes, 4 and 5 are close together, and 5--6 is fairly close; 7 is slightly further away but close.  Do you want me to go through any others?
Q  Well, if there are any others that you see there?
A  There's the group 11, 12, and 13--those three together, and they are together up in here on--from the pajama top.
    The--7, 8, 9 and 10--8, 9, and 10--we have already covered 7--but they are together in a line fairly close together in both of them; and the numbers 14, 15, and 16 fall below the other groups in both of them.

MR. MURTAGH:  Your Honor, at this time that concludes direct examinaion.  Counsel may cross-examine.

THE COURT:  All right.


C R O S S - E X A M I N A T I O N  (3:15 p.m.)

BY MR. SEGAL:
Q  Ms. Green, the picture that is now up on the easel, that is a picture of a project you worked on in 1974, is that correct?
A  Yes.
Q  And may I ask, who gave you the instruction as to how to perform that project, what was to be done in regard to that project?
A  I don't recall being given any instructions on just how to do it.
Q  Well, when somebody presented you with that pajama top, were you given no information or direction as to what anybody was interested in trying to have you do with it?
A  Yes; maybe I misunderstood your question at first.
Q  That's my fault, Ms. Green.
A  I was asked to try to realign the holes in the pajama top so that in the manner--folding the pajama top in the manner in which it was found on the victim, and creating 21 thrusts, making 21 thrusts through it to produce 21 holes in the pattern with the puncture holes in the chest of the victim.
Q  Well, it is not quite correct to say that you were asked to repeat 21 thrusts.  Actually, there were several thrusts to that pajama that you never attempted to accommodate, isn't that right?
A  No, I was trying to get exactly 21 thrusts.
Q  Well, we do, I think--we have heard testimony here about 21 puncture holes.  There are actually several other thrusts through that pajama top that are not puncture holes.  You are aware of that, are you not?
A  Yes, there are two knife wounds--two knife cuts.  Yes.
Q  Now, a knife wound is also a thrust through a garment, is it not?
A  Yes.
Q  So that to be absolutely correct, you were to figure out whether 21 puncture holes could be aligned in a way--or that 48 puncture holes could be aligned in a way that fitted 21 pur-ported puncture holes in what was a body, is that right?
A  Yes.
Q  At no time did you attempt to figure out how you could line up 48 puncture holes in one garment with 21 holes in the body, and at the same time also figure out how the knife wounds--the knife thrusts could be accommodated also--at the same time--isn't that cor-rect?
A  That is true; I didn't work with the knife wounds.
Q  Now, in trying to make these various holes work out, I am going to do a very crude de-monstration.  Let us assume for a moment that the handle of this ice pick I have really repre-sents just one of the probes you are working with, all right?
A  All right.
Q  And let's assume that the hole I made in the piece of paper represents the hole in the fab-ric, all right?
A  Yes.
Q  Now, because the probes and the holes you were putting in them were circular, you could rotate, could you not, the fabric to a certain extent around the hole and around the probe?
A  I suppose you could.
Q  In fact, you did experience that.  You had to rotate fabric to try and line up with another hole someplace else, isn't that right?
A  I don't know that I moved it around that much.  It just went through it.
Q  Well, you did, in fact, have occasion to have a probe through one hole and then try to line up another hole, perhaps move the fabric and cause it to rotate, isn't that right?
A  It is possible there was some rotation, yes.
Q  Ms. Green, let's get this correct.  Are you telling us you don't have any recollection of having to try and move a piece of fabric while one probe was in, and try to fit it to another one; then move another one to try to fit it to another one?  You never did that?
A  Well, I remember being very careful when I was lining these holes up so that I would not change the size of the holes in going through them.
Q  I understand that.
A  I did not try to twist them.
Q  As a matter of fact, the way you tried to assure that you were not going to change the holes was that you used the probes here, which are actually smaller than most of the holes in the garment, so that the probes themselves would not damage the holes?
A  That is correct.
Q  By the way, do you know offhand what the diameter of the probes are that you used?
A  No, not offhand.
Q  Do you have a note of that in your own file or in your memoranda?
A  I don't believe so.
Q  Had you experimented with different diameter probes before going on with this work to make sure you didn't have a set of probes that were too large for the holes?
A  I don't recall doing that.  I know these probes were not larger than the holes.
Q  All right.  When you have a hole that is made by a knife blade--I am going to insert that into the side of the Government Exhibit.  Nothing is involved here.  If you were to try and rotate the fabric around a probe that would simulate a knife blade, wouldn't there be a po-tential problem or danger in doing that?
A  With a knife blade, yes.
Q  What is the potential problem and danger of trying to rotate fabric with a knife blade in place?
A  It would probably tear the edges, either end of the cut--
Q  And--sorry--go ahead.
A  Either end of the cut would be torn.
Q  And, of course, it would be fair to say that your ability to rotate fabric to see if you match up holes or you turn it around or adjust it, is not limited in that fashion when you are dealing only with a circular or oval hole such as an ice pick hole?
A  That is true.
Q  Now, having called that to your attention, there are problems of trying to rotate or move fabric without danger when you have to deal with knife holes as opposed to puncture holes, would that lead you to the conclusion that perhaps the reason why you were not asked to accommodate 48 puncture holes and two knife holes into the body pattern, was because it would limit how much you could maneuver the fabric?  Had that occurred to you as a possi-bility?
A  I'm not sure I understand the question.

MR. MURTAGH:  Your Honor, we would OBJECT.  I think the question is argumentative.

THE COURT:  She doesn't understand it.  Let's see if she can understand the question first.
That may solve it.

MR. SEGAL:  That's my fault.  I will rephrase it.

BY MR. SEGAL:
Q  What I am trying to seek your opinion on, Ms. Green.  Now that you have heard what I am asking about; that is, with a knife in fabric which presents problems of rotation because of tearing, all right?
A  Right.
Q  With an oval instrument such as an ice pick in place, it doesn't present any problems in rotating.  Does that lead you to the conclusion that the reason why you were not asked, in setting up this model, to also put in probes duplicating the ice pick was because it would have limited how much rotation and maneuverability you would have had with the circular probe?
A  You say, with ice picks?
Q  Yes, emulating the circular probe?
A  I'm still not sure that I understand your question.

THE COURT:  Let's just ask the witness why you didn't work with the knife holes?  I think that is what he is getting around to.

THE WITNESS:  The reason I did not work with the knife holes is because it wasn't request-ed.

BY MR. SEGAL:
Q  And who made the request?  I'm sorry, I didn't mean to cut you off.
A  That is all.
Q  And who made the request of you to work only with the probe or the ice pick holes?
A  Mr. Stombaugh.
Q  Now, when you observed that there were ice pick holes and also knife holes in the gar-ment, did you ask him if there was any reason why you weren't supposed to try and accom-modate those knife holes as well as ice pick holes?
A  I may have.  I don't recall because it seems to me there were only two knife holes in the pajama top, and there were several in the victim's body.
Q  There were several what?
A  In the chest of the victim.
Q  Ms. Green, let me ask you, did you, before you began this experiment trying to put probes into the holes, examine the various puncture holes in the blue pajama top?
A  No.  I didn't see it when it came in in 1971.
Q  Well, in 1974 when you did receive it, did you make an examination before you commenced this experiment of the pajama top itself?
A  Mr. Stombaugh had already done that, so I didn't make an examination, as such.  I am sure I looked at them as I was working with them.
Q  Did you not look at the individual puncture holes that were made in that blue garment be-fore you started working with it?
A  Yes.  I am sure I did.
Q  Did you look at them under a microscope?
A  I may have.
Q  Do you not have any bench notes of any sort in that regard?
A  No.  I could well have looked at them under a stereo microscope.
Q  When you looked at it, if you did, did you check the other count of warp and woof threads that had been broken by various puncture thrusts?
A  No, I didn't make any count.
Q  And therefore you have no record either of this count?  There was no record of the num-ber of threads that are broken in each puncture hole?
A  No.  Usually there is just one; possibly one, one way or another.
Q  Are you saying that when a puncture hole is made with an ice pick, only one warp thread and woof thread is broken?  Is that what you are saying?
A  Not necessarily, but it wouldn't be very many.  It could be only one.
Q  It couldn't be only one?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  I believe you misunderstood it.

MR. SEGAL:  I'm sorry if I misunderstood it, if I did.

BY MR. SEGAL:
Q  What I am asking, if you are examining a single puncture hole under a microscope, you are able to tell, are you not, how many warp and woof threads may have been broken by it?
A  Yes.
Q  And what is the purpose of making such a microscopic examination of a puncture hole or knife thrust in a garment?
A  The purpose of examining the hole?
Q  Yes, ma'am.
A  The main purpose was to determine whether it was a puncture type wound, by looking at it, by the characteristics of the hole made by something such as an ice pick; and whether it breaks one or two yarns, it really doesn't matter if they are alike in diameter and have the same characteristics.
Q  This garment had a large number of holes, didn't it?  48 is a pretty good number to work with, isn't it?
A  Yes.
Q  What was the range of the number of broken threads among those various holes?  That is, what was the least number of threads that were broken by any puncture hole, and what was the largest number of threads broken by any puncture hole?
A  I don't know.  I didn't keep a record.
Q  Are you even certain at this time that they were checked individually, each and every one of those holes, to determine the number of threads that were broken in them?
A  No, I never did count the holes individually.  I just looked at the holes.
Q  You never did count the holes individually?
A  I never did count the warp and filling yarns that were broken in each individual hole.  I just studied the holes as a whole.
Q  Did you ever do any experiments with this garment where you held it taut, and then, using an ice pick, made punctures in it with an ice pick going into varying depths; that is, some-times just pricking it slightly, sometimes going deep into it?  Did you ever try such an experi-ment?
A  Not with this garment.
Q  Did you try any in connection with this case with some other fabric?
A  I don't recall, but I have done that on other cases if not on this one.
Q  All right, you say you have done it, you are certain, on other cases; is that right?
A  Yes.
Q  But you have no recollection whether you made such an experiment in this case; is that right?
A  That's right.
Q  And what was the purpose of conducting that kind of experiment in other cases?
A  To see the type of hole that it would leave as compared with whatever type you were comparing.
Q  That was just to give you the shape of the hole that was made by a particular puncturing instrument or cutting instrument?
A  Well, it shows you the shape and the condition of the fibers at the end of these yarns, the type of hole it leaves, the characteristics of this hole.  If a hole is made in a piece of fabric where there is nothing to support it, it tends to rip it and tear it.
Q  And where there is something to support it, what happens?
A  It just leaves a circular hole without tearing.
Q  Let me ask you: did you make any experiment of a different sort?  Let me ask you about this one--in which you took an ice pick and mounted it upright like this, then took a piece of cloth, and punctured it at different angles to see what would happen in terms of the type of hole that you would get?  Did you perform such an experiment in this case?
A  I don't believe so in this case, but I have tried things like that in other cases.
Q  May I ask what was the object in other cases for trying that kind of experiment that I have just described to you?
A  Just to see the type of puncture.
Q  And you were interested--were you not--to see whether you got any tearing effect--were you not--when a puncture wound was made a particular instrument?
A  Yes.
Q  And, by doing such an experiment--that is, trying to mount the ice pick upright, taking a cloth and a different angle of attacking the cloth with the ice pick, you could find out wheth-er it produced a torn hole or what kind of hole it produced; is that right?
A  Yes; I probably would be doing it more in the reverse, using an ice pick into the cloth.
Q  All right, maybe that's another way, depending upon the facts that someone had told you were involved in the particular event that led to an investigation; is that right?
A  Yes.

MR. MURTAGH:  Your Honor, we would OBJECT to this line of questioning on the grounds that it is beyond the scope of direct.

THE COURT:  Well, I'll let him ask it.  He said he wasn't going to ask her but a few questions anyway.  Go ahead.

BY MR. SEGAL:
Q  Do you know of any reason why such an experiment was not done in this case?
A  I don't believe it was felt necessary.
Q  I assume that the judgment was made by Mr. Stombaugh or somebody else, rather than yourself.
A  Probably both of us, because we could see the holes and knew what type of holes they were from previous experiments of this nature.
Q  You mean that they were puncture holes?
A  Puncture holes.
Q  When was the last time you had done a puncture experiment with the puncture instrument going in at an angle into a fabric like this?
A  I don't know.  I don't keep records on these cases.
Q  Well, let me ask you: is it correct to say that all of the holes in that blue pajama top were not of the same size--all of the puncture holes were not all of the same size?
A  Yes; there was variance; yes.
Q  Do you have any recollection or have any notes at this time to indicate what was the largest diameter puncture hole as opposed to the narrowest diameter puncture hole?
A  No; Mr. Stombaugh made those notes.  I believe he testified to that.  It was a range.
Q  But you yourself in your work did not have an occasion to make such a note?
A  No.
Q  The probes that you used--they were smaller than the smallest of the holes in the pajama top; were they not--in diameter?
A  Either the same size or smaller.
Q  Well, if they were the same size as, say, the smallest hole, wouldn't that have a potential for damaging or tearing that hole if you put it through any times?
A  No; if it was just big enough to go through it--which was the case.
Q  Do you know how many holes in the pajama top were just large enough for the probe to go through without damaging it?
A  All of them.
Q  Which holes are just about the same diameter as the probe itself--I should have said?
A  I don't know.  I didn't keep track of which holes.
Q  Did you encounter any difficulties in putting these probes carefully through the cloth with-out damaging the cloth?
A  No; just I had to be very slow and careful with them.
Q  Were the ends of these probes--were any one of these probes in any way filed or rounded in order to prevent damage from being done as it was going through fibers?
A  They are not filed.  It looks like they have been cut with a pair of tin snips or something, but they don't have any snags on them to hurt the fabric.
Q  They had no burrs on the metal; is that right?
A  Right.
Q  May I see some of these, please.  As a matter of fact, is it correct to say that what you have here is a V-shaped cutting edge at the end of each of these probes?
A  That's right.
Q  You wouldn't call that the ideal way of going through a small hole in order to avoid tearing it--having a V-shaped cutting edge; would you?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  Would you have preferred to have a rounded edge rather than a V-shaped cutting edge to go through the fabric?
A  It might have been better, but it really didn't matter.
Q  Now, in arriving at this eventual diagram that you have here, you merely have taken these probes and put them through holes so that 48 fit into 21; is that right?
A  That's right.
Q  You have not in any way tried to make sure that, say, you have a top small hole, you have a large bottom hole--let's make another hole here--you in no way accounted for the varying widths of the holes that you are putting probes through; is that right?
A  I'm sure that at that time I did this I would have noticed if there was a much larger or much smaller hole.  They all seemed to be approximately the same.  I think I would have no-ticed if the top hole, for instance, was much larger than the bottom just in performing the examination.
Q  Could you tell us whether--just tell us what record you have to show us that you didn't wind up putting a probe on top through a small hole.
A  I didn't write any records of the size of the holes.
Q  I'm not talking about the size of the holes now.  I'm talking about what record do you have of this demonstration that could assure to anyone that taking a probe and putting it through a small hole where it just fit, going on through a slightly larger hole which indicates that perhaps it was made by a different part of a blade or knife or an instrument like this and then go through a third size hole which was made by a different portion of the same type of instrument; what record do you have to show you didn't do that?

MR. MURTAGH:  OBJECTION.

THE COURT:  OVERRULED.

BY MR. SEGAL:
Q  Is it not correct to say, Ms. Green, that the sole point of what you were asked to do was to see whether if you took a probe that was smaller than the smallest hole in the 48 holes in the garment, whether you could rearrange those holes with the probe and then come out as though they touched 21 points down below; is that not the point of your demonstration?
A  Yes, I aligned 48 holes into 21; yes.
Q  Now, of course, you had to arrange that pajama top in some sort of fashion and what was your guiding information or material as to what fashion you were going to arrange the blue pajama top?
A  Mr. Stombaugh and I studied the photographs of the victim with the pajama top over the victim and decided that the neck area and the right shoulder sleeve area and all the other areas were in certain locations, that it was inside-out, and so we folded it in that manner.
Q  And you were using some photographs that were provided by the what--the CID investi-gators or the FBI?
A  I believe those were at the scene--CID photographs.
Q  Did you have any other information that you were considering and working with at the time that you were setting up this little experiment?
A  Have any other information?
Q  Yes; about the crime, the body, or the body's position, the condition of the body.
A  Well, just that the pajama top was found as it was pictured in this photograph and that it had been probably moved to one side when Mr. MacDonald was laying on the body of the victim.  It could have been pulled to one side.  I was under the impression that could have happened.
Q  And where did you get that information--that Dr. MacDonald might have moved it because he was lying on it at some point?
A  I don't recall whether I read it or someone mentioned it.
Q  Well, then, in using these photographs that you had before you, is it fair to conclude that what your demonstration was going to be was to guess at where it had been--the pajama top had been--on Mrs. MacDonald's body and then, having made such a guess, try to see whether you could fit 48 holes into 21?

MR. MURTAGH:  OBJECTION.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  How did you determine that the fashion you have illustrated here is the correct fashion in which the pajama top was laying on Mrs. MacDonald's body?
A  Because, from the photographs, you could tell that it was laid out in a certain way.  It was inside-out.  The right shoulder sleeve was over to the right.  The right cuff sleeve was over to the left.  The collar area of the right front panel was up above the right shoulder sleeve.  The back panel was pulled over to the left.  All of these positions we could tell, and when redoing the pajama top and letting it fall into that position, these holes could be lined up.
Q  Well, how long did it take you to do this in 1944--or that is in 1964--let's forget all that.
Let's start all over again.  Pretend I didn't say it--1974--how long did it take you to do this the first time you ever did it?
A  The first time I ever figured out the complete possible arrangment, I would say it took at least a week.
Q  To figure out the arrangment of the puncture holes; is that right?
A  Yes; to account for all of them.
Q  And did you make a memorandum in your work notes about what you did at that point so that you could say, okay, now I've got to this; I know how to do it; is that right?
A  Yes.
Q  Having done that, how many more experiments did you go on to conduct in regard to ar-ranging the pajama top?
A  At that point when I found the solution to the problem that I was given, that was it.  I had other work to do.
Q  On some other project?
A  Yes.
Q  You don't truthfully know--do you--Ms. Green, how many other possible alternative ar-rangements there are whereby you could have fitted those 48 holes into 21 holes?
A  No; because I was trying to fit exactly 21 holes.
Q  Because that is what you had to do?
A  Yes; that was the problem.  That was the request.  It could possibly be more; it could possibly be less; but it can be 21 holes exactly and come out into the same pattern as the pattern of the punctures on the victim.
Q  Do you have any way of knowing whether or not you can fit those 48 holes onto 15 skew-ers; have you ever tried that?
A  No.

THE COURT:  It is time for our recess.  Come back at 4:00.

(The proceeding was recessed at 3:45 p.m., to reconvene at 4:00 p.m., this same day.)


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

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

(Whereupon, SHIRLEY GREEN, 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  (4:01 p.m.)  (resumed)

BY MR. SEGAL:
Q  Ms. Green, is there any reason why you could not have fitted, in using the skewers, the 48 holes into 25 holes if that had been the project?
A  It probably could have been done.
Q  Is there any reason why the 48 holes could not have been fitted into 18 holes in the space?
A  I don't know, I didn't attempt to do it; but I am sure that there could be more or less holes, but how many--one or two--I don't know.  That wasn't my object.
Q  It would be correct to say that the result that you achieved in this particular experiment depended upon what you had been asked to do and defined by Mr. Stombaugh?
A  Yes, I was trying to align 21 thrusts through the pajama top, through all 48 holes, folded in the manner in which it was found on the victim, and it was possible to do so in the exact pattern as in the chest of the victim.
Q  The exact pattern, you say, provided that when you moved the pajama top to the posi-tion that you had it in, which is different from the picture that you had before you?
A  I am saying the pajama top was positioned in the manner in which it was found on the vic-tim.  It might be--I didn't place it on the body--but if it is folded into this position--if you want to move it a little to the left or right, it still lines up.
Q  Just a little movement, though, is all you are talking about, not substantial changes from the way it appears in the picture?
A  Well, I don't know how much movement it would--if it lines up, you could move it wherever you want to put it, once you have put your thrusts--your pins through it in this case.
Q  When you looked at the pictures of Mrs. MacDonald's body, did you notice whether she had anything on the upper part of her body besides the blue pajama top?  I will give you a picture if it will help.  For the moment let me give you two of the three, which are C-1139 and G-1137.
A  Her own pajama top.
Q  That is the pink pajama top, is that right?
A  Yes.
Q  Now, at any time, did you ever attempt to take a--and we'll call it the dummy here that you were using back in 1974--this foam rubber pad?
A  Yes.
Q  Did you ever attempt to do this little experiment: first putting on the pink pajama top across the dummy, then putting on the blue pajama top, and then trying to put through--these skewers through it all?
A  No.
Q  In view of the fact that you had the picture in front of you, that shows the body was not naked above the waist but had a pink pajama top, did you ever ask anyone as to whether or not the experiment should be conducted that way, with the pajama top on?
A  I possibly did.  I don't recall.
Q  Do you recall an answer of any sort you may have gotten?
A  No, I think we didn't think it was necessary.
Q  And who made that decision, if you recall--Mr. Stombaugh?
A  Probably.
Q  Did you ever examine the pink pajama top in detail?
A  No, I don't recall--I remember looking at it but I didn't examine it particularly.
Q  I'm sorry, you examined it and what?
A  I didn't particularly examine it myself.  For what reason?
Q  You have no idea, then, of the relationship of the pink pajama top to the injuries on the body, to the blue pajama top--if it has any relationship whatsoever?
A  Well, I don't recall specifically.  I know that there were a certain number of puncture holes through the--through her pajama top; but there again, if there more than 21 it would mean those could be caused by folding--
Q  (Interposing)  Would you--

MR. MURTAGH:  (Interposing)  The witness is not finished.

THE WITNESS:  They could be caused by folding in the same manner as the other pajama top, but I didn't try to figure out how it was folded.  It didn't seem to have much point.

BY MR. SEGAL:
Q  Well, let's suppose that the white sheet that I have here would be the pink pajama top.
Would it not have given you some hesitation about the validity of your experiment if, having put through the probe through a small hole, then through a larger hole, then a medium hole, you were then confronted with a small hole in the pink pajama top--

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

MR. SEGAL:  --would that not raise a question in your mind as to whether this was a valid experiment you were engaged in?

THE COURT:  Objection SUSTAINED.

BY MR. SEGAL:
Q  Does that fact--that you did not have the pink pajama top available to you to participate in the demonstration--give you any question as to the methodology you used to arrive at the conclusion you did?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  Do you know of any reason why you were never asked to make a comparison between the pink pajama top, the blue pajama top, and the holes on the torso?
A  I mentioned that Mr. Stombaugh had examined that and decided that the holes were pos-sibly a certain size or that it didn't warrant the examination, I don't know.
Q  Did you yourself ever speak to any CID agent about the placement of where the pajama top was found on Mrs. MacDonald's body?
A  No, I don't recall.
Q  Did you ever meet, in this connection, Agent William Ivory of the CID?
A  Yes.
Q  And do you recall his discussing that with you in 1974?
A  No, I didn't meet him at that time.
Q  Your meeting was, what, in 1979?
A  Yes.
Q  Did you get any written memorandum from anyone describing the circumstances under which the military police and medics and other persons observed the blue pajama top on Mrs. MacDonald's body?
A  No, I don't recall anything.
Q  Now, you have told us today that there was a second--just one last question, then--a second creation in this photograph--787(a).
    We see here that the--what is it, the left arm?
A  Yes; the left sleeve.
Q  In the laid-out fashion here, running off the edge of the mound here in the rearrangement
--is that an attempt to recreate the way that sleeve appeared on the photographs that you had up there on the stand?
A  No, not in a sense.  That is a recreation of the--when the pajama top folded as it was found on the body from the photographs; and then with the probes through it, naturally it is going to look a little different.  It is going to change.  You've got 21 probes going through the material all at one time.
Q  My question was--addressing yourself to the, what I call the right-hand side of the photo, is this display of this arm here meant to represent the way the arm was seen on the photo-graphs that you have up here in front of you--the photographs taken at the crime scene?
A  Generally--not exactly.  This was stretched way out.  It didn't seem important.  The idea of that picture was to show those probes and to show the numbers on each one of those probes.
Q  Right.  The arm display here has actually nothing to do with this experimental probe, is that right?
A  That's right.
Q  But actually, though, 50 percent of the photographs displayed here is the laying out of the arm which has nothing to do with the demonstration you engaged in, isn't that right?
A  Yes; that's only because it just worked out that way.  In order to get the entire thing in, it is a little distorted as that--where that sleeve comes out in the photograph from that an-gle.
Q  It is a little distorted where the sleeve comes out--I'm not sure I understand.  What does that mean?
A  Well, I mean the angle is not--it looks like--just as you take a picture of someone with their feet in the foreground, their feet look big.  It is a little bit distorted in--from that angle.  What it is focused on is the probes.
Q  By the way, the picture itself does not really repeat any of the angles of the photographs you have; isn't that correct, Ms. Green?
A  Yes.
Q  Were you present when this photograph was taken in 1974?
A  Yes.
Q  How many other angles was this particular model shot from?
A  I believe that is the only one.
Q  One single photo?
A  Yes.
Q  Were you and Mr. Stombaugh present at that time when this photograph was being taken?
A  I don't recall.  I am sure one of us was.  I am not sure.
Q  Was it only after the photograph was developed that you realized that it kind of distorts the size of the sleeve here?  Was that the first time that you became aware of that?
A  No, it was not important.  The important thing about the sleeve is just to have it off to the side, out of the main concentration of the picture.
Q  As a matter of fact, that sleeve could be off entirely and it would have nothing at all to do with your demonstration, is that right?
A  That's right.
Q  It's just "eyewash," in fact?

MR. MURTAGH:  OBJECTION to that, Your Honor.

BY MR. SEGAL:
Q  It is just "eyewash," in effect, isn't it?

THE COURT:  I'll SUSTAIN.  I won't require her to answer a question involving the word "eye-wash."

BY MR. SEGAL:
Q  Do you know why no photograph was taken of this 1974 model from a position approximat-ing either one of the two positions--just let me borrow, if I may--from a position approximat-ing either one of the two positions of the principal photograph that you were working from?
A  Because we didn't see any object in doing so.  Our object was to line up the probes and show how they could go through the pajama top.

THE COURT:  I seem to recall that you said that one time before today or more.  Did you?

THE WITNESS:  I possibly did.

THE COURT:  Ask her something else.

BY MR. SEGAL:
Q  All right.  How about in 1979, you told us there were a whole bunch of new pictures here that you did the same experiment in 1979.  Is that right, Ms. Green?
A  Yes.
Q  Who asked you to do it in 1979, the second time, and why?
A  I think it was Mr. Murtagh.  I forget the date.

(Counsel confer.)

THE COURT:  Did you find it?

THE WITNESS:  Yes.

THE COURT:  She found it.

THE WITNESS:  It was in March of this year.

BY MR. SEGAL:
Q  March, 1979.  Did you get an oral or written request in this regard?
A  This was, I believe, an oral request.
Q  Do you have that in memorandum form, Ms. Green?
A  I just have that I realigned the pajama top and photos were made in March.
Q  Do you know why you were asked to do this demonstration a second time five years later by Mr. Murtagh?  Was any reason given to you?
A  Well, they wanted to have photographs made.  To realign it, have photographs and to re-check the--see if it came out in the same pattern, whatever.
Q  Now, as a matter of fact, there were more photographs made than you were shown here this afternoon, is that right?  More than there were shown in the displays here; there were more than these, weren't there?
A  Probably.
Q  I would like to ask you that, when you did the display in 1979 in March or so, and had them photographed, were you once again arranging the pajama top to resemble the way it was in the photographs we have been talking about here today, 1139 and 1138?
A  Yes.
Q  Did you arrange them in the same fashion that they are in those photographs?
A  Yes.
Q  If we may, I want to ask you to look at some of those photographs.  While we are getting this set up, Ms. Green, if you would come down and just take a look at those photographs and see whether they look familiar to you.  Then, after you have had a chance to look at them, we'll talk about them.

(Witness complies.)

Q  Ms. Green, have you had a chance to look at the photographs, particularly the one that has been marked D-40 for identification and D-39 for identification, and do you recognize either of those two photographs?
A  Yes.
Q  You may lift the grid if you like.
A  I recognize them.
Q  And is D-40 one of the arrangments you have made of this blue pajama top sometime in 1979 as a result of Mr. Murtagh's request?
A  Yes.
Q  And is D-39 the same representation of the blue pajama top, only photographed at a dif-ferent angle?  Is that right?
A  Yes, that is right.
Q  And these photographs we're talking about were made about the same time as the others you were shown before our luncheon break today, were they not?
A  Yes.
Q  We also have here displayed D-41 which is one of the photographs you have been working with, and also D-42 which is a photograph you have been working with, only they are both in enlarged fashion?
A  Yes.
Q  And, finally, over here on the left, appears that same photograph, 787(a), that we have been working with except that we have eliminated an arm which, as you say, doesn't have anything to do with the attempt to make these little sticks fit in, is that right?
A  That is right.
Q  Now, on 43, if you will look at this--yes, this is Government Exhibit 43 here--if I could just temporarily impose upon you to stand back and I will point something out.  Then, if you need to come closer, please don't hesitate to do that, but what I want to do is point out to you and then ask you about it.  First of all, I want you to take note, if you will, of the way the pajama trails off from letter "J" to blocks 10 and 11 and going into 12.  Do you see the trailing edge of the pajama here?
A  Yes.
Q  Now, if you would look over here at 804 which is the nearest thing to it, I ask you to take a look at K-8 and 9 and ask if you can tell me whether or not the trailing edge of this pajama isn't arranged rather differently from the way it appears here in the first photograph.
A  Yes, sir; it appears to look different, but the object was not to try to make the photo-graphs look alike.  The object was to try to fold the pajama top into a certain position which was done in all cases with these other two.  They are in the same position, and folded in the same position, and when the probes are through there, we weren't concerned about having them angled and having the photographs match up.  All we were concerned about was matching the holes in the same position in the same number.
Q  Of course, in this photograph here again you see some attention has been spent in getting this particular arm trailing off to the left and turned here at this angle; right?
A  Actually not much attention was given to it.  We just sort of draped it out there to put it in a general area.
Q  Well, as a matter of fact, if you look up here on photograph 40, you didn't bother to do that at all.  You simply tucked the arm apparently underneath it to get it out of the way be-cause it had no relevance whatsoever to the experiment; right?
A  That's right.
Q  But here in this and many other pictures we have seen today, the arm appears taking about 50 percent of the photograph up although it actually had nothing to do with the exper-iment; correct?
A  It was just a matter of holding all the evidence into one picture, showing all the evidence.
Q  Why was it necessary to show the arm in every picture when the arm had nothing to do with the experiment you conducted?
A  It was just a matter of record.
Q  Record--why wasn't it a matter of record here on 40 to show the arm where it was?

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

THE COURT:  I will SUSTAIN the objection.  I think she has covered that adequately--not once, but three or four times.

MR. SEGAL:  I'm sorry.  I couldn't hear you.

THE COURT:  I said that she had covered it adequately--not once, but three or four times.

BY MR. SEGAL:
Q  Now, if you will take a look, please, at Exhibit 804 at the piping that is apparent at O-7, O-6.  O runs along here.  It appears in the blocks that are marked O-6 and O-7.  Do you see that piping there in O?
A  Yes.
Q  Now, if you will look over here on the other photograph which is Government 43 and the approximate area that should be, I would say, J-8 and 9, would you show me where the pip-ing appears anywhere?
A  Actually, this is a different angle so that this is the right sleeve coming through here which would be right here.  This is over to the right of the right sleeve and it would be right here and that is a piece of the beading right there.
Q  The piping--you would call it piping; right?
A  Piping, yes.
Q  Now, you indicate that the piping that appears on Government Exhibit 804 and is located at the grid coordinates that we talked about here of O and P at 6; do you recognize it there?
A  Yes.
Q  And you would agree that this appears to be over where the left breast of the female model or dummy would be; is that right?
A  Yes.
Q  But, however, when I asked you to point it out in the actual crime scene photograph of Mrs. MacDonald's body, you pointed it--well, let's get the coordinates down here--it looks like K-11; is that right?
A  Yes.
Q  In your mind is that the same position that it appears on the model there?
A  No, but I didn't have a body to put it on here.  I just used a form.  It could have been placed to the left or right of the form.  It was just a place to put the pins.
Q  All right, let's take a look at the crime scene photograph, and I ask you to look at J-11 and K-11 and ask you if on that J and K-11, you observe the presence of a seam.
A  It looks like a fold to me.
Q  There are two different lines I'm pointing to.  Let me get the coordinates again, if I may.
We are talking about one that comes here at coordinates J-9 and 10, and we are talking about one here.  One runs here and one runs here.  Do you see the three lines I am referring to here?
A  Yes.
Q  Now, would you please examine--I'm sorry.  Do you have anything to say about that?
A  These lines right in here?
Q  The three of them--one, two and then what I would call a seam but I will accept your characterization of it.
A  It looks like a fold.
Q  Now, go over onto your own model there and show me where on this exhibit you can find anything that resembles those marks.
A  Well, as I said, this is at a different angle--it is not looking at it in the same direction ei-ther even though it is folded the same.  It would be difficult to find every little fold and seam in exactly the same place because here you have probes through here that change the posi-tion slightly even though it was arranged in the same way.
Q  Let's take a look back at your model, then.  Let's look at the coordinates M-6 and we'll look at L-7 and I ask whether you notice here a seam present here in the garment.
A  Yes.
Q  All right, now, will you show me, please, where there is a comparable seam anywhere visi-ble on the crime scene photograph of Mrs. MacDonald that most comports to that?
A  Well, like I say--
Q  (Interposing)  It's approximate.
A  Well, we are doing a comparison of photographs which is not the same as comparing the actual garment.  This seam could be hidden here and yet still be in the same position gener-ally--generally in the same position.
Q  Let's skip over to something.  Let's take a look at these two big photographs here, D-41 and D-40.  You would suggest that the dressmaker's dummy is in a fairly close relationship similar to the way Mrs. MacDonald's body appears here in the actual crime scene photograph?
A  Yes.
Q  Well, now, first of all, will you notice that in the actual crime scene photograph Mrs. Mac-Donald's right breast is visible, although it is covered by a pajama top; do you see that?
A  Yes.
Q  As a matter of fact, I think even the outline of the nipple is visible at the coordinates of G-15.  Would you agree that appears probably to be a nipple underneath the garment there?
A  Yes.
Q  I ask you to take a look at the photo that you worked on and tell me in what reasonable manner you can tell me that this resembles the position in which Mrs. MacDonald's body is shown here.  Show me where her purported right breast is visible on the garment as you ar-ranged it.

MR. MURTAGH:  Your Honor, we would OBJECT.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  Do you see any comparison as to where the right breast area is arranged on the actual crime scene photo and arranged on the photo that you have here showing your pincushion effect?
A  The attempt was made to put this in this position as the puncture holes were in the vic-tim.  In this case, they could have been pulled to one side.
Q  What could have been pulled to one side?
A  The whole pajama top could have been pulled to one side, since the--if there were stab holes through that in one position, it could have been moved to the side after the stab holes.
Q  Well, isn't it a fact that this arrangment that you have shown here in G-4 consists entirely of speculation?

MR. MURTAGH:  OBJECTION.

MR. SEGAL:  May I finish my question, Your Honor?  This is a purported expert in this matter.

MR. MURTAGH:  Your Honor, may I approach the Bench?

THE COURT:  Yes; come up.


B E N C H  C O N F E R E N C E

MR. MURTAGH:  Your Honor, Ms. Green, although she probably is qualified based on her edu-cation and experience--

THE COURT:  (Interposing)  You did not undertake to qualify her--

MR. MURTAGH:  (Interposing)  No, sir.

THE COURT:  --as an expert in anything.  You told what her educational qualifications were.
But I was not asked for any ruling on that.

MR. MURTAGH:  No, sir.  And I merely asked her what she did and whether the photographs accurately depicted what she did.  I asked her no opinions on anything.

MR. SEGAL:  As a matter of fact, she said, Your Honor, "This is the way it could be on the body."

THE COURT:  Let me ask you this now: just in all fairness, can't you ask your questions with-out interjecting stuff like "pseudo-expert" and "purported expert" and so forth?  I don't think that is fair.
    And let me tell you something else, too: I don't say this because I am trying to run your lawsuit--I am not sure that you are helping your own case when you do that.  This is just an observation from this Bench which you may or may not give any weight to at all.
    But it just occurred to me that you can ask questions of a witness who is not qualified as an expert without incorporating that kind of language in your questions.

MR. SEGAL:  I don't believe I referred to this lady in this regard, Your Honor.  I must say the only time that I have said that was in reference to Mr. Stombaugh.

THE COURT:  Well, you said--you asked "purported."

MR. SEGAL:  I don't think--it may be ill chosen.

THE COURT:  That is not as strong as "pseudo."

MR. SEGAL:  I agree.

THE COURT:  Both of them are improper in my opinion.  And I don't want to have to hold you to account here before this jury, because I don't want your client to be prejudiced by any-thing that I do and even what you do.  Do you understand?

MR. SEGAL:  I understand, Your Honor.

THE COURT:  All right.

MR. MURTAGH:  Your Honor, could we merely have for the clarification of the record that Ms. Green has not been qualified as an expert and has merely testified as to what she did?

THE COURT:  If you want to bring that out on redirect, of course, you will be in a position to do it.  I don't want to make speeches to the jury when I don't have to.

MR. MURTAGH:  Let me say this: I refrained from making this reference in front of the jury.
But we can put it in as to which seam is where and to what fold is what.  It takes her about an hour to do it.

THE COURT:  Just tell her to reconstruct the whole thing?

MR. MURTAGH:  She can--yes, sir.

MR. SEGAL:  You can prove your case the way you want to, Mr. Murtagh.

THE COURT:  Here is one thing: since I am wondering, I am wondering if the jury is wondering about it too.  But I got as far into it this morning--well, I just thought I had misunderstood that man's answers.  But apparently I had not.  I had misunderstood him as to one thing: be-cause he told me--I thought he said that if you have got five holes and you put the five fin-gers down here and make five impressions, there is no way on God's earth that you can ever cover them without having your fingers back in the same position that they were.
    Now, that was that.  But if I understood him correctly, he said that you could take ten fingers and get the ten fingers so confused as to go into the five holes as he did in this case, but that you could take those same ten things and put them some other way and they would fit.  And I don't believe you can do it.

MR. MURTAGH:  Your Honor, I think what he meant to do--he was not going to testify that it could not occur in any other fashion.  It is the same as Ms. Green is saying: "I did it this way.  There may be some other way to do it."  That is something we would clarify on redi-rect.

THE COURT:  If he told me that you could arrange 48 places and arrange those same 48 so they would still go into those 21 holes other than the way that they say they arranged them in this case, I wouldn't believe it.  But, now, thankfully, I don't have to make that decision, nor will that opinion ever be expressed to this jury.

MR. MURTAGH:  Your Honor, if there is another way to reconstruct it--and if it was tough enough to do it one way--I think this is merely the conservative nature of the laboratory ex-aminer.  It is like the hair could have come--the same thing with respect to the threads.

THE COURT:  If I have ever heard a man disclaim, not one time but fifty, old Stombaugh kept saying that, "I only said it could be."

MR. MURTAGH:  That is right, sir.

THE COURT:  Now, you have been up here so long I forgot what you came for.

MR. SEGAL:  A break, Your Honor.  I said "purported expert."  I am sorry for that.  I really did not intend any derogatory inference by that.  But my point was responding to the Govern-ment's objection that it is speculation.

THE COURT:  Well, just watch.  I think you have both been very good about saving your ob-jections to those times when you thought maybe it was hurtful to you not to object and have it sustained if you could get it sustained.  I commend both of you for that.
    But as far as wording the questions and so forth is concerned, I am just sitting here and just disinterested--listen, I would whole lot rather be somewhere else--as I can be.
    But I really think that when you get any kind of feeling into your questions or get into an argument with a witness, that the telegraphed message to the jury is that you are hurting.
Now, that may be wrong, and you are a law professor.  You know more about this thing than I do.
    Next question.

(Bench conference terminated.)


BY MR. SEGAL:
Q  In Government 43 here, I am going to lift the grid for you.  The general nature of the folds that appear in Mrs. MacDonald's body, do you observe them, how they are laid across her center?
A  In her body?
Q  Yes, across her abdomen.  The general nature of the folds?
A  Of the pajama top?
Q  Yes, of the pajama top?
A  Yes.
Q  You notice, I will point out to you, and I will drop the coordinate grid over it, this large area here, over this large area here.  Let me just lower it, please.  The large area, which falls mostly in coordinates I and J, running from 5 down to 10?
A  Yes.
Q  This is the area that I am referring to.  Would you please show me where the comparable area exists here on G-804, which is the dressmaker's dummy?
A  It would be right under here, but the pins have made so many folds that it does not show up.  If the pins were taken out and it were just left there, it could be seen better.
Q  Let's take a look at M-7 and N-7, and you see here, I am pointing to the ends of the paja-ma top.  It looks like an end of a sleeve or an arm?
A  I don't believe it is a sleeve or an arm.
Q  What part do you think that is, Ms. Green?
A  Probably along the side of the back panel.  It should be the edge of the left side seam of the back panel.
Q  May I ask you, please, to examine the actual crime scene photograph and show us the same place on it?
A  Well, like I said before, these were not intended to be photograph comparisons.  It is pos-sible to have an end turned under in one case or the other.  The main thing was to align it in this manner, both times.
Q  Well, you keep stressing that it is the alignment in this manner both times so that you can get the pins in it, is that right?
A  To figure out where the holes line up in order for them to come out with 21 in that parti-cular pattern.
Q  To get the result that you were asked to see whether it existed, is that right?
A  Yes.
Q  Well, can you explain, please, how you could do that, arrive at the display as it appears here on the Defendant 40, when the arrangement of the pajama top, for instance, contains here a notch--a "V" notch--and coordinates G and H, 12 and 13, I ask you how you did that when you look over your crime scene photo as similar, where I am unable to see any similar arrangment of that.

MR. MURTAGH:  Your Honor, we would OBJECT to that question, unless counsel also states for the record what also appears in the photograph.

MR. SEGAL:  The photo speaks for itself, Your Honor.

THE COURT:  Well, I will let her answer that question and you can take her on redirect and supply the remaining half of the answer, if there is one.

THE WITNESS:  It just happened to be the way I folded up the remaining part of the garment when I did that.  I wasn't trying to match it up to the photograph.  The positions are still there.

BY MR. SEGAL:
Q  Now, I noticed here there was a great broad seam that runs from about coordinate H-8 and 9 down to coordinate C-10.  Do you see that here on your model?
A  Yes.
Q  Could you please show me where you find that seam here on the original photograph?
A  It looks like it might be right here.
Q  I'm sorry, would you use the coordinate system.  I think it will help us for the record?
A  I would say it looks like it might be the area 17-G and H, as seen in there.
Q  You think in the crime scene photographs the seam that I have referred to on the model appears at G and H-17, roughly?
A  In this one it looks like to me--I was going to look for the pajama top.  I would think so.
Q  You think that this seam here is supposed to be the same as the seam displayed in your own model here, running diagonally across as I am pointing to the jury now?
A  Well, I believe that this seam here comes under and folds out to here, if that is the right sleeve; and I believe that is the same thing here.
Q  You have testified to a seam that runs from coordinate N-15 down to I-16, 17, is that correct?
A  Yes.
Q  And you believe that is the same seam that appears over here on the dressmaker's dummy model running from H-8 down to D-10, 11; is that right?
A  This would be a portion of that.  Some of it is hidden under the folds of where the probes go through.

MR. SEGAL:   All right, thank you very much.  You may go back, Ms. Green.

BY MR. SEGAL:
Q  Now, Ms. Green, did you ever see the report that Mr. Stombaugh prepared on the first ex-periment here, the one of 1974, in October and November--February 17, 1974?
A  Yes.
Q  That has been marked as Defendant Exhibit 55, and I ask you to please read for us the first sentence of the third full paragraph--

MR. MURTAGH:  (Interposing)  Your Honor, we would OBJECT.

THE COURT:  On the grounds that Mr. Stombaugh has already read it into the record?

MR. MURTAGH:  It is Mr. Stombaugh's report; yes, sir.

MR. SEGAL:  A different question.  It has nothing to do with whether it's his report.  I would ask whether this particular witness knows about it and what she did about it, if anything.

THE COURT:  If it is not already in evidence, then you are offering it in evidence.  If there is an objection, I may want to hear you on that.

MR. MURTAGH:  Yes, sir.


B E N C H  C O N F E R E N C E

THE COURT:  He said it was Defendant's Exhibit 55.

MR. MURTAGH:  Your Honor, I think Mr. Segal had ample opportunity to explore the semantic differences between Mr. Stombaugh's grand jury testimony and his report.  We have been over whether folded in the same position means placed in the same position on the victim, or folded--that is right sleeve inside out as it appears in the photograph.
    We have been over this with Ms. Green.  It seems to me that what Mr. Stombaugh wrote in his report is irrelevant as to what Ms. Green did and has testified to.

THE COURT:  You say it is the same type of question as, "Did you hear Mr. So-and-so make this statement on the stand this morning and do you agree with it" and so forth?

MR. MURTAGH:  I think it is something like that.

THE COURT:  An objection is ordinarily sustained to that.

MR. SEGAL:  I would like to make an offer, Your Honor.  Where my question is, I don't think Mr. Murtagh quite has stated my position.  My view is that the work that was done in this in-stance was done by this woman under the direction of Mr. Stombaugh.  But she did the work, it is clear.
    I want to ask whether she saw the report and read it and then when she saw the line that says, that this was, you know, we arranged it the same as in the pajamas; whether or not she either considered that to be a correct statement of what she had done or whether she had told him it was incorrect and it did not fairly represent what she had done.

THE COURT:  Do you object to that, Mr. Murtagh?

MR. MURTAGH:  I OBJECT.

THE COURT:  I will SUSTAIN it.

(Bench conference terminated.)


MR. SEGAL:  I will need your indulgence for one moment, Ms. Green.

BY MR. SEGAL:
Q  I have two questions I want to ask you about this garment, but let me ask you first: do you see the hole that appears in the right sleeve here of this garment?
A  Yes.
Q  Do you know what that hole is?
A  I believe Mr. Stombaugh burned a hole in it later on.
Q  A hole was burned in it?
A  I believe so.
Q  There is a marking here on the back.  Do you know under what circumstances he came to burn this hole in this?
A  I am sure it might have been accidental.
Q  You mean a cigarette hole?
A  Possibly.  I would assume; I don't know.
Q  Can you interpret this marking in the back of this garment where that burn hole appears?
A  It says "Lab test."  Perhaps he burned it there on purpose; I really don't know.  It appears to be, for instance, a cigarette burn.  Maybe he used a cigarette to make a test, I don't know.
Q  Have you any idea what test--

THE COURT:  (Interposing)  Did he smoke?

THE WITNESS:  Yes.

THE COURT:  I asked her if he smoked; she said yes; we are that far along.  Go ahead.

BY MR. SEGAL:
Q  I suppose--I really do want to know whether there's some test that you know that he performed on this garment that required a hole-burning process to be made on it?
A  No, sir; but I do recall him saying that he was responsbile for that burn hole.
Q  Right; and he marked it as "Lab test," right?
A  I assume that is his writing.
Q  I will ask your indulgence while I am looking for a specific little hole here.  Now, on what looks like to be--tell me where number 4 is.  Is this the back or one of the backs of the paja-ma top?  Now, let me just hold onto it so I don't lose this hole.
A  Hole number 4?
Q  Yes, is this hole number 4 in the back of the pajama top?
A  Yes, in the back panel.
Q  Now, in the center--let me hold it up, please, if I may--in the center of hole number 4--it is an elusive hole--in the center of hole number 4, there appears to be what, a puncture mark?  Is that what that is?
A  Yes.
Q  Are you telling us that you placed a probe through that particular hole, number 4, Ms. Green?
A  Yes.
Q  Now--yes, do you see it?
A  Yes.
Q  And that when you did that you did not damage any fiber using one of these probes?
A  That circle is around a different hole over on that side than--
Q  (Interposing)  Can we show that to the jury?
A  --this side.

MR. MURTAGH:  Your Honor, may we know which side she is referring to?

MR. SEGAL:  I am going to show you right now.  Bear with me one second.

THE COURT:  Let's let her answer the question that was originally put to her.

THE WITNESS:  These probes go from the inside of the shirt out, and it is from here out.

BY MR. SEGAL:
Q  First of all, so we know what we are talking about, there is circled on the back of the shirt with a number 4, and in the center of the circle a hole.  Do we see that?  Are we in agree-ment about that?
A  Yes.
Q  At the edge of the circle, apparently just beyond the circle, there is actually a cut mark--a thrust mark--isn't that right?
A  That's what it looks like.
Q  However, when we reverse the pajama on the other side, you find it is number 4 again, is that right?
A  Yes.
Q  On this side, number 4, however, has circled what--the hole or the thrust mark?
A  It's the--well, it's a large hole.  Let--may I refer to my notes?
Q  Yes, certainly.
A  Because there are some irregularities.  This would be the hole which is larger than this one.  I don't know what this one is.
Q  Is it your testimony that this mark, which on the inside of the pajama back is circled "4," which appears to be a horizontal line--that that's a mark that was made by an ice pick or made by a cutting instrument like a knife?
A  No--
Q  (Interposing)  Can I offer you a glass, if that is any help to you?
A  Okay.  It could be either--the large hole, the larger hole.
Q  If that is a large hole, let's try the ice pick, then.

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  On what grounds?

MR. MURTAGH:  Your Honor, which hole are we talking about?  Are we talking about putting the ice pick through a smaller hole or a larger hole?

MR. SEGAL:  The larger hole.

MR. MURTAGH:  Your Honor, at no point has the Government ever put an ice pick through any portion of the pajama top.

MR. SEGAL:  The witness has testified, Your Honor, that the probe doesn't go through the small hole, but the one marked "4" on the reverse side may be the one that the probe was put through.

MR. MURTAGH:  Your Honor, may we come up on this?

THE COURT:  Yes, you may come up, but I am going to let the jury go home.  We will con-vene--tomorrow is Friday, isn't it?  Members of the jury, we will go on our regular Friday schedule tomorrow and we will convene tomorrow morning at 9:00 o'clock.
    Remember, we go home at 3:00.  And so we will let you retire now while I see what this one is about.  Don't talk about the case.

(Jury exits at 4:58 p.m.)


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

THE COURT:  All right, he is about to get the witness to put the ice pick through some hole there in the pajama top.  Mr. Murtagh, you object to his doing that?

MR. MURTAGH:  I OBJECT, Your Honor, unless I know what hole we are talking about.

THE COURT:  Tell him what hole, right quick.

MR. SEGAL:  Four.

MR. MURTAGH:  Which side?

THE COURT:  Number 4.  Have you got one on both sides?

MR. MURTAGH:  That is the point.

THE COURT:  Tell him which side.

MR. SEGAL:  The "4" on the back.

MR. MURTAGH:  We OBJECT.  I think if I can come up, I can show you why, Judge.

THE COURT:  All right.

MR. SEGAL:  No, we've got the witness.  I don't want it done in front of the witness, either.
We are not going to coach the witness; we are not going to have that.  I think it is improper.
We can do it out of the hearing of the witness, of course, Your Honor.

MR. MURTAGH:  Of course.  Your Honor, can we do this in the morning, if that would suit the court?  Whatever the court desires.  I don't want to impose upon the court.  I know it is 5:00 o'clock.

THE COURT:  I will hear you in the morning.  Take a recess until 9:00 o'clock.

(The proceeding was adjourned at 5:00 p.m., to reconvene at 9:00 a.m. on Friday, August 10, 1979.)


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

THIS CAUSE came on for further trial before The Honorable Franklin T. Dupree, Jr., United States Chief District Judge, and a jury, on Friday, August 10, 1979, at Raleigh, North Caro-lina.

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

THE COURT:  Good morning, ladies and gentlemen.  There was some matter, and the jury is not here, and I forgot what it was.  Has it blown over?

MR. MURTAGH:  No, sir.

MR. SEGAL:  I believe where we left the matter yesterday, is I had asked the witness to use the probe in regard to certain marked locations on the pajama top.  The Government object-ed.
    By the way, for purposes of legal argument, I think it might be more appropriate--so I can discuss what my intentions were in examination--that we do it without the witness being pre=sent in the courtroom.  I note Ms. Green is present.

THE COURT:  All right; step outside, Ms. Green.  We will get you in a minute.

MR. SEGAL:  It is not personal, Ms. Green.

THE COURT:  She is no longer an amateur witness.  She has had her day in court for the first time ever.

MR. MURTAGH:  Your Honor, Mr. Segal's recollection is a little different from mine.  The way I read the transcript, it was the ice pick that was going to be inserted through a hole.  If we are talking about a probe that she has inserted on a previous occasion through a particular hole, we have no problem.

THE COURT:  Is that what you meant?

MR. SEGAL:  Yes, Your Honor.

THE COURT:  We are settled--the probe.  Bring the TGIF Club in.

(Jury enters at 9:03 a.m.)


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

THE COURT:  Good morning, ladies and gentlemen--the meeting of the TGIF Club.  Members of the jury, for your general information--and I try to pass these things along--because the trial has run somewhat longer than the Court expected it to--but the matter, as you well recognize, is of considerable importance to all the parties, and the Court likes to give every-body a chance to have his or her say, as the case may be.
    But I am informed--I have some information--that the Government will conclude its case today--likely will conclude its case today.  Whether there will be evidence for the Defendant
--and the extent of the Defense case, of course, remains to be seen--but it is not anticipat-ed, in any event, that it will be quite so time-consuming as the Government's case has been.
    For those of you who have regular employment and so forth, you perhaps should be in-formed that under the most recent amendments to the Juror Act, you are fully protected in your employment and no sanctions whatever can be used against anyone for service on a jury, so that any such indication by an employer or anyone of any displeasure or unhappiness with your jury service must be immediately dismissed so that all jurors in the performance of this vital, essential service in the administration of justice--that comes first under the Juror Act.  Every juror is completely protected from any such sanction or other action.
    All right; we have a witness, I believe, on the stand.  Let her come back.  You did have some additional questions, Mr. Segal, of this witness?

MR. SEGAL:  Yes, Your Honor.

THE COURT:  Very well.  Come back to the stand, Ms. Green.

(Whereupon, SHIRLEY GREEN, 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  9:07 a.m.   (resumed)

BY MR. SEGAL:
Q  Good morning, Ms. Green.
A  Good morning.
Q  When we adjourned yesterday, I had asked you to look at the blue pajama top in regard to certain holes.  Do you recall that we were talking about number four yesterday?
A  Yes.
Q  By the way, just as a preliminary, I should ask you, have you spoken to anybody about your testimony yesterday between the time you left court and came back this morning?
A  No, sir.
Q  Now, that pajama top has a series of holes, all circled with some kind of white material, and also with numbers written next to them in white.  Who did that?  Do you know?
A  Mr. Stombaugh.
Q  And as far as you know, what are those circles supposed to represent?
A  They are supposed to represent the puncture holes that were in the pajama top.
Q  Were the knife or thrust holes also circled or marked by him?  Do you know?
A  I don't recall.  They may have been.
Q  If he had marked the thrust holes or knife holes, would they be marked the same way, with a circle and a number next to them?
A  I don't remember specifically on the pajama top; but on one item, they were in rectangles, I believe, for the knife marks.
Q  Well, suffice it to say that when you were trying to work at your little experiment, you were looking at the circled holes, and the ones that had the numbers next to them; is that right?
A  Yes.
Q  Those were the ones you felt confident in your mind that Mr. Stombaugh had identified as being puncture holes; is that right?
A  That is right.
Q  Again, we are looking at the outside of the back of this garment.  Let me exhibit to the jury for the moment where there is a circle within the center of what appears to be a hole.
    Now, have I correctly described the fact that this white circle has at the center of it a hole with a number 4 next to it?
A  Yes, sir; but the other side is different.
Q  Yes, we will come to that in a second.
    I just want to borrow one of these little probes if I may, and I was asking you yesterday if you could put the probe through the hole that it is in the center of 4?
A  No, sir, because this is the number 4 hole over here.
Q  Well, but let's hold one second.  First of all, the hole that appears in the center of number 4 you say now is not a hole through which you could put a probe?
A  That is correct; it seems like this side is either--is in error--put on later than the other side.
Q  Well, now, wait a minute; I am not sure I understand what you are saying.  What is it that was put on in error on this garment at a later time?

MR. SEGAL:  Mr. Murtagh, would you mind sitting down, please?

THE WITNESS:  Well, the holes were marked originally by Mr. Stombaugh, the puncture holes.

BY MR. SEGAL:
Q  Yes, ma'am?
A  And I would say that the other side was probably put on later, trying to line them up on the opposite side, and probably put on thinking that was the right one, and realizing it wasn't.
    It sort of goes around to the other one, too, I believe.
Q  Well, that leaves me somewhat confused.  First of all, I thought that you are the person--you told us that you are not the person who made these little circles and numbered these holes?
A  I didn't make the examinations of the holes or make the circles.
Q  So that this is not your writing when it says number 4 next to any given hole, is that right?
A  That's right.
Q  And these are not your circles in white that are marked here on this garment, is that right?
    As far as you know, you don't have any personal knowledge--as far as you know, you as-sume that Mr. Stombaugh did that?
A  Yes.
Q  Now, all the explanation you are giving us now is nothing that you ever saw or learned personally yourself, isn't that right?
A  Well, it was pointed out by Mr. Stombaugh that that one hole was the hole.  I believe that before I left here I realized that there are a few tiny puncture holes in there due to thumb-tacks that were put in there when some photographs were made.
Q  Did you put a thumbtack in this garment and then circle it with a number 4 and say that is a puncture hole?
A  No; I did not.
Q  How many numbers--how many circled number holes are there in this garment?
A  48.
Q  That is circled as number 4, is that right?
A  Yes.
Q  Now, if you tell me that that is not a puncture wound, allegedly or suspiciously made by something like an ice pick, then you are telling us what: there are only 47 holes on the out-side of this garment and not 48?
A  No, sir; I--the number, I believe--well, on the other side were the ones that originally were put on.  That one was--in trying to locate the same holes on the other side, I think they were put on again.  I don't know at what time.
Q  Apparently it was put on, possibly, what appears to be the thumbtack hole?
A  Well, it is right near the other one.  He may have just circled the wrong one; I don't know.
Q  Well, now, Ms. Green, when he was making the circle around number 4, he had that gar-ment ostensibly laid out flat like this so he could see it and write, isn't that correct?

MR. ANDERSON:  OBJECTION.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  As far as you know, were any of the numbers that appear on the outside of the garment written by Mr. Stombaugh while he was looking at the inside of the garment?
A  I do not know.
Q  How would you, based upon your 28 years of working on this kind of matter, assume or conclude how the outside numbers were written on it--written on it with the garment down like this, or in some other kind of obscure fashion?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  How were the numbers put on as far as you know?

THE COURT:  I believe she answered that.  I believe she--didn't you say you weren't present at the time they were made--

THE WITNESS:  That's right; I don't know.

MR. SEGAL:  Your Honor, I move to strike all of her answer before as to what she assumed Mr. Stombaugh did.  It was not responsive to my question; but if we are going to let it stand, then I wish to be permitted to follow up the same line.

THE COURT:  Ask your next question.

BY MR. SEGAL:
Q  Have you worked with other garments with Mr. Stombaugh that had any marks and num-bers for the purpose of identification of holes, marks, bullet holes, thrust marks?
A  I don't recall; I didn't work directly for Mr. Stombaugh--except in this case.
Q  I'm sorry; I didn't mean to cut you off.
A  Only in a few cases, mainly this case.
Q  Well, have you worked with other members of the same position in the FBI who had occa-sion to mark the garments for holes, indicate them so that they could then do some experi-ment and tests with them?
A  Yes.
Q  What is the procedure that you have experienced when being given garments that have been marked with holes; how is it done, please?
A  By looking at the holes and marking them.
Q  Right, something akin to laying it down, finding a hole, putting a marker on it and a num-ber, is that right?
A  Yes.
Q  And where was the suspect or unknown hole put beside these circles--was it put at the edge or was the hole put in the center and surrounded by the white circle?
A  In the center.
Q  Right; seems like a logical procedure, right?
A  Yes.
Q  Now, on this garment you have number 4 with a hole directly in the center of it.  That is from looking at the outside of the garment, is that right?
A  Yes, but I am sure he realized that that was the wrong one after he circled it and didn't erase it.
Q  You say he must have realized it?  Do you know whether in fact he realized it?
A  Well, I know he has pointed out that hole--not in the circle on the one side, but in the circle on the other side--as being the puncture hole.
Q  But let us talk about the outside.  We will come to the inside for sure.  Do you know any reason why either you or he did not put another circle around here and say 4.1 or give it an-other number or whatever happened?
A  No, sir; I guess he just didn't think it was important at the time.  He knew what it was.
Q  How about yourself; didn't you think it was important at the time?
A  I don't remember thinking about it.
Q  Would it not be consistent with good FBI laboratory procedures that you were familiar with to circle a thrust cut, bullet hole or other mark in the garment you were examining, so that you could know what number you were referring to, what item you were referring to at a lat-er time in court testimony or other proceedings?
A  Well, we knew what it was and we had looked at it so many times we didn't--probably didn't think about it.  I don't know.
Q  Well, I understand that is your answer.  Now, I am asking you in reflection, would it have not been consistent with proper FBI laboratory procedures to have circled that independently with another circle around that, and say, "That is 4.1"?
A  That might have been a good idea.
Q  As a matter of fact, you have had occasion before where some other agent had marked the garment and you have discovered something more, and you have, in fact, with circles and indicating marks on those garments and fabrics; you have done that, haven't you, Ms. Green?
A  Yes.
Q  But you have no reason or explanation in this case as to why, although there is a hole in the center of number 4, that you did not mark this other cut, thrust, or other mark here that appears on the--I guess on the periphery of number 4?

MR. BLACKBURN:  OBJECTION.

MR. MURTAGH:  OBJECTION.

THE COURT:  SUSTAINED.  It seems to the Court that the questions being directed to this witness might more properly be or have been directed to the person who allegedly did the marking.  That is Mr. Stombaugh.  I think you have explored this about far enough with this witness.

BY MR. SEGAL:
Q  Now, Ms. Green, on the other side of this fabric, is it not correct that on the inside that each and every one of the holes has been marked similarly; that is, with a circle around it and with an identifying number?
A  Yes.
Q  Now, can you find a single other hole which does not match up on the inside with exactly the same cut, puncture, or thrust mark that is on the outside?
A  I would have to look through all of them.
Q  Yes, please take your time and do that.

(Pause.)

THE COURT:  Is counsel willing to represent that she won't find one?

MR. SEGAL:  My examination does not show me, Your Honor, but I don't hold myself out to be an expert.

THE COURT:  You will accept that; won't you?

THE WITNESS:  Yes.

THE COURT:  He says that.

THE WITNESS:  I am sure there won't be one.

BY MR. SEGAL:
Q  All right, now, on the inside of this particular garment where there should be a comparable circle and number 4 indicating this hole--this round hole--on the inside we find that the round hole is not marked but there is some other kind of cut that is marked; is that right?  That's 4.
A  Yes; we just never changed--just never recircled it.
Q  Now, will you please describe to us, if you can, the size and dimensions of this number 4 from the inside, and I'll be glad to lend you a glass if that will help at all.
A  Well, it is elongated.
Q  Will this help at all, Ms. Green?  And let me offer you a ruler.

THE COURT:  While you are doing that, can the witness tell us which one is the one that you were working with and which one is the one that you say was circled in error?  Is it the inside one or the outside one?

THE WITNESS:  The one that is marked on the inside.

THE COURT:  That is the one that you worked with?

THE WITNESS:  Yes.

BY MR. SEGAL:
Q  The reason that you did not work with the one that is marked on the outside is because your steel probe did not fit through it; isn't that right, Ms. Green?

MR. MURTAGH:  OBJECTION.

THE WITNESS:  No.

THE COURT:  OVERRULED.

BY MR. SEGAL:
Q  Let me offer you a steel ruler which is marked both in centimeters and inches and, if you would, please, be good enough.
A  It appears to be about an eighth of an inch long.
Q  An eighth of an inch long.  Can you tell us anything else about the shape of it?  You say an eighth of an inch long.
A  I never made examinations of the holes themselves.
Q  I understand that.  If you could, I would appreciate it if you would give us a little bit fur-ther description of that hole.
A  It's an elongated hole.
Q  That would roughly be a vertical-type mark; is that right?
A  Yes.
Q  Now, do you know, based upon any scientific examination that you made, that that is not a thrust mark made with something like a knife, as opposed to have been made a puncture hole with something like an ice pick?
A  I didn't make the examinations of the holes.  I only did the alignment of the holes.
Q  You have no way of knowing, then, whether number 4, as seen from the inside, is one eighth of an inch vertical mark.  You don't know whether that is a puncture mark that is made by something like an ice pick or is a mark made by the point or thrust of a knife; is that your testimony?
A  I would trust Mr. Stombaugh's opinion that it was a puncture hole that could have been made by the ice pick.
Q  I'm sorry?
A  It could have been made by the ice pick.
Q  Just based upon your examination sitting there right now, is it perfectly clear that it could also have been made by the cutting front edge of a knife?
A  No.
Q  Do you find a single other puncture hole on this garment that is that length and has a ver-tical aspect to it like the one that I just pointed to you, number 4, from the inside?
A  I don't recall seeing any others like that.
Q  You mean you don't recall seeing another hole in that pajama top which bore the same characteristics as 4 from the inside there; is that right?
A  That's right--
Q  (Interposing)  You have never--
A  Not in shape.
Q  Beg your pardon?
A  Not in the exact shape.
Q  Not in the exact shape.  Of course, you didn't do any experiments with either an ice pick or a paring knife to decide whether or not, I mean, what the shape of the hole should be.  And, of course, if that turns out, number 4 from the inside, to be, in fact, a rendering of the garment made with a knife as a puncture hole, then your demonstration that you have put 48 puncture holes into 28 [sic] puncture holes is not quite exactly correct; is that right?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  You would have then put probe holes through 47 puncture holes and one knife hole if that hole number 4 from the inside is not a puncture hole?

MR. BLACKBURN:  OBJECTION.

THE WITNESS:  I have no reason to doubt that it isn't a puncture hole.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  That's because you are relying on Mr. Stombaugh; is that right?
A  That's right.
Q  How many times did you say you worked with Mr. Stombaugh prior to this case?

MR. BLACKBURN:  Your Honor, we would OBJECT.

MR. SEGAL:  She volunteered before, Your Honor.

THE COURT:  Well, you want to hear it again?

MR. SEGAL:  No, I--

THE COURT:  (Interposing)  We do everything in duplicate, so tell us.  That's two or three times; wasn't it?

THE WITNESS:  Yes, sir.

THE COURT:  All right.

BY MR. SEGAL:
Q  I'm sorry, Ms. Green.  I didn't hear your answer.
A  Yes.
Q  I wanted to know how many times that went on.  That was not my question.
A  Two or three times.
Q  Two or three times?
A  Directly with him on cases; yes.
Q  When you say "directly with him," you mean those were only two or three cases where you had any contact with him on a professional level.  You may have seen him in the building before.
A  Several times with one phase or another on cases.  Numerous times, I suppose.  But I didn't work for him--directly with him.
Q  Did you ever seen any memorandum written by Mr. Stombaugh in which he said, "I have made a mistake on marking number 4 on the inside and number 4 on the outside; there's some difference there that should be corrected."  Did you ever seen such a memorandum?
A  No.

MR. MURTAGH:  OBJECTION.

THE COURT:  OVERRULED.

BY MR. SEGAL:
Q  What was your answer?
A  No, sir.
Q  Did you yourself ever make a written memorandum indicating there was some mistake be-tween number 4 on the outside and number 4 on the inside?
A  No, sir; we knew what the numbers were--the right ones.
Q  Now, you made no microscopic examination of any of those holes--number 4 or any of the other holes; is that right?
A  That's right.
Q  You did not know at the time you were making your little experiment with the probes whether the holes that you were sticking the probe holes through were entry holes or exit holes; isn't that correct?
A  That's correct.  I believe Mr. Stombaugh made that examination.  It was not possible to be sure whether they were or were not.
Q  Well, just for the purpose of clarifying for the record, it is often possible to tell, when look-ing at a garment that has been penetrated with a bullet going through it, a knife, some kind of cutting instrument, it is often possible--is it not--by microscopic examination to tell which side, say, the bullet went in and which side the bullet came out?
A  That's correct.
Q  Is that because of the way the fibers lay after the impact of the knife or the bullet or whatever has gone through; isn't that right?
A  That's correct.
Q  And also because you can tell from the way the warp and the woof of the fibers has been cut--which has been an entry and which has been an exit wound.
A  From the fibers around the hole, you can tell.
Q  Yes, the fibers around the hole and the way they have been cut and the way they sun-dered each other.
A  That's right.
Q  Now, did Mr. Stombaugh ever give you, so that you could work with it when you were pre-paring your demonstration, a report as to whether or not he actually did combine any entry or exit holes?
A  I believe he concluded that he couldn't be sure; that some had the appearance of exit and some had the appearance of entrance--but it had been a time since it was found at the scene to the time that he examined it to be positive in this.
Q  Did Mr. Stombaugh give you that report in writing?
A  I don't recall.  I think that one of the reports mentioned that it could not be determined for sure whether they were exit or entrance holes.  I don't remember the date of the report.
Q  Well, have you looked at the reports that you were given or examined prior to testifying here in court today?
A  Have I seen the report?
Q  Yes.
A  Yes.
Q  Do you have one with you that you could look at to refresh your recollection as to wheth-er or not he identified any holes as being possible exit holes or entry holes?
A  No; I don't have a copy of the report.
Q  Do you recall reading anything Mr. Stombaugh wrote that indicated there were possibly five exit holes, but he was not absolutely sure about it?
A  It seems like he said there were possibly five exit and six entrance or vice-versa.  I don't recall for sure.
Q  But he also indicated that he was not certain that those were the holes; is that right--exit and entry holes?
A  Yes; he would not say that they were for sure.  They just had that appearance.
Q  They microscopically had that appearance?
A  Yes.
Q  Did you attempt in your experiment in putting these probes through to make sure that you arranged the holes in this various fashion, to see whether the six that he suspected might be entry and the five that he suspected might be exit holes lined up in a fashion that was con-sistent with exit and entry holes?
A  Yes; I believe I did.
Q  And which ones are they?
A  I don't recall.
Q  Where are your notes in that regard?
A  I did not make any notes.  I just had the information at the time when I first read it, and they seemed consistent.
Q  Just tell us today, which numbered holes did you work with, believing they were entry holes?

MR. BLACKBURN:  Your Honor, we would OBJECT.  I think the witness testified she did not re-call.

THE COURT:  If the witness recalls, I will let her answer the question.

THE WITNESS:  To my recollection, hole number six was an exit hole; and I believe hole num-ber 14--that is going from the inside of the fabric to the outside of the fabric.  Hole number six, hole number 14, hole number 20--but that is all that comes to my mind.

BY MR. SEGAL:
Q  Did you not write those down with the rest of the numbers that were supposedly or possi-bly entry and exit numbers?
A  I think I may have written down those three.
Q  What about the others?
A  No.
Q  You did not try to accommodate your experiment to the other holes either, did you?
A  I did make a recollection at the time, but I did not make any notes.
Q  So there is no way of us looking today to see how accurately or inaccurately that might have been done?
A  Well, we were not positive that they were entry or exit--exit or entry holes--at the time.
Q  Ms. Green, when you started these experiments did you start with any assumption as to what was happening to the pajama top at the time it received the puncture and stab holes that it has in it?
A  What was happening to it?
Q  Yes; did you start with any assumptions as to what was happening to the pajama top at the time?  Let me put it to you this way: did you start with the assumption, when you did this examination, that the garment--the pajama top--was not moving when it received punc-ture holes and stab holes in it?
A  Well, I would not think so; because if a garment is receiving puncture holes, there is bound to be movement every time it is punctured.
Q  There was no way of telling, as a matter of fact, just from the information you had, whether the garment--when it received puncture holes--was moving or not moving?
A  I would not say the garment was moving when it was punctured, but in puncturing a gar-ment, it would move the garment when it was pulled out before it was punctured again, if that is what you mean.
Q  That is my fault that the question is not clear, and I will try to clear it up with you now.

THE COURT:  I think he was talking about whether it was moving this way--not up and down, but moving laterally.  Isn't that your question?

MR. SEGAL:  That is part of it; yes, Your Honor.  And I accept that.

THE WITNESS:  I would not think it would be moving; no, sir.  It was confirmed that they were made in a stationary--while the garment was stationary--so I had no reason to think otherwise.

BY MR. SEGAL:
Q  Who confirmed that?
A  Mr. Stombaugh.
Q  And what tests had he made to confirm it, as far as you knew?
A  I really don't know.  I never even saw this case at the time he examined it originally.
Q  You have no idea of how one would test to see whether a garment was moving--let's as-sume for one moment--laterally, when it received the puncture wound?
A  I assume he would make tests in the fabric as to both conditions and compare them.
Q  That seems reasonable.  Is there any indication that any tests were made in that gar-ment, other than to burn a hole in it?

MR. BLACKBURN:  Your Honor, we would OBJECT.

THE COURT:  SUSTAINED.

MR. SEGAL:  It says "Lab test" on it, Your Honor.  That is one indication of a test.

THE COURT:  Yes; but you are asking a witness who did not make these tests, and you are asking for something that was done by someone else when she was not even there, at a dif-ferent year.  My recollection is that you examined that particular witness at some length.  I think that is the best evidence of that.

BY MR. SEGAL:
Q  Ms. Green, you told us yesterday that on more than one occasion you did have photo-graphs of Mrs. MacDonald's body with the blue pajama top on it before you started to work on your little demonstration with the probes and with this blue pajama top; is that right?  You said you had photographs as well as the pajama top; is that right?
A  Yes.
Q  But I think you also told us yesterday that you really didn't make your demonstration or model look just like the way the pajama top was on the photograph of Mrs. MacDonald's body?
A  I don't believe that is exactly what I said.  I said it was folded in the same manner in which it was depicted in the photograph, and the 21 thrusts could be lined up when it is fold-ed in that manner, to make the exact pattern of the puncture wounds in the victim.
Q  When you say "folded in the same manner," I showed you a number of folds on those pic-tures yesterday--I won't go through it again this morning--and which I thought I understood you to say, "Well, that is not what really matters.  It was that you could line up 48 in 21," and that you were not really trying to duplicate the way the pajama top looked in the crime scene photographs?
A  Not to the extent that you seem to think it should be done.  When you make several folds in a material, you end up with numerous folds and creases and so forth; and it would be im-possible to put every little crease back exactly like it was in the photograph--
Q  (Interposing)  That is right.  You could not tell, for instance--

MR. MURTAGH:  OBJECTION.

THE COURT:  She is not through.

MR. SEGAL:  I am sorry--your voice drops off, and I think you have stopped talking.  I am not trying to cut you off.

THE WITNESS:  I am sorry.  But the same pattern, when you turn the sleeve inside out and you put the right shoulder over to one side, the end of the sleeve to the other side, and the front panel above--in the same way that it was found in the photograph--and go through it with 21 probes.  In the first place, the 21 probes will wrinkle it, because when you found it at the scene, those ice pick holes would go through one at a time.
    The photograph we had, we had 21 probes in it at the same time, so you are bound to have extra wrinkles just due to that.  It would be impossible to make it look exactly the same under two different conditions, you might say.

BY MR. SEGAL:
Q  Well, now, you had this photograph--1138--in front of you; is that right?
A  Yes.
Q  It shows the garment is folded and crushed together in some fashion; is that right?
A  Yes.
Q  Aside from the major folds across the top, you did not know from this photograph to what extent the pajama top was folded underneath of it--which part of it was folded underneath of it?
A  We had an idea exactly where it was folded.
Q  Ms. Green, let's take the pajama top.  If I lay the pajama top like this, and then I give you a photograph of that, can you tell me precisely what parts of the pajama are underneath the top?  You can see the top portion here.  Can you tell me in a photograph what portions of the garment are beneath it?
A  No; but I can lay it out exactly like that from the folds and the seams, and I would know that it could be under this way or that way.  And where it did line up, it could be put that way, as far as every little edge.  The main part could be lined up, and those edges that didn't show, I don't believe even mattered.
Q  Let me see here.  I have--one, two, three, four, five, six folds of garment over here?  Now in a photograph like this, which is all that you were working from, you had no idea of how ma-ny folds of garment were underneath that top layer; isn't that correct?
A  Well, that is correct in a way.  But we knew what could be under there--
Q  (Interposing)  Wait a minute.

MR. MURTAGH:  OBJECTION, Your Honor.

MR. SEGAL:  I want an answer on the simple question of whether from the photograph it could be told.  What this witness keeps insisting upon talking about is her deductive process.
I will get to that; but I want to know what the photograph reveals in her opinion.

MR. MURTAGH:  Your Honor, may we come up?

THE COURT:  No; I don't think this calls for a visit.  Ask your question, please.  Start over--that simple question that you wanted answered.

BY MR. SEGAL:
Q  Isn't it correct that from the photograph you cannot tell--the photograph you worked with--that you cannot tell and could not tell the number of layers of the garment or how they were beneath the surface that is revealed in the photograph?
A  You can't tell every little fold, no, sir, that is not seen in the photograph.
Q  I beg your pardon?
A  You can't see every little fold that is not covered--that is underneath in the photograph.  But you can see the main alignment--that the right sleeve--the right shoulder seam is over to the right, and the seams between the left and right panel--on the back panel--on the front panel--are at a certain area; and that it is folded under.
Q  Okay, you have told us the things that you could clearly make out, Ms. Green, from this photograph where the sleeve and the several seams of the right and left panels, isn't that right?
A  Yes.
Q  Those are the key things that even this quality photograph reveals, correct?
A  Yes.
Q  Are you telling us that there is no other way in the world to rearrange a fabric underneath and still expose the seams as you see them here?
A  Not in very great amount, just in minor details.
Q  Well, you mean like perhaps a half inch one way or the other the fabric underneath could have moved?
A  Well, something like that.
Q  Yes, and of course if you move the fabric a half inch one way or the other, you just might miss one little hole, isn't that right, and push your probe through?
A  No, I don't even know what condition this was when it was found on the body.  It seems to have been moved to one side on the body to begin with when this photograph was made.
Q  Well, since you brought that up, let me ask you this: is it true that the photograph--ex-cept to give you an idea about the sleeve and two panels, and outside general impression--that the photograph really wasn't the key thing in trying to decide whether you would do this experiment with putting 48 probes [sic] in 21 holes?
A  You're saying that the photograph was not the key to arranging these?
Q  Yes, that's right.
A  I would say it was the key to arranging the pajama top.
Q  It was the key?  You stand by that the photograph was absolutely essential with trying to recreate this reconstruction?
A  Yes, we had two different photographs, and we could tell the general alignment of the pa-jama top; and it can be arranged in that general manner, and 21 probes can be put through it when it is arranged in that manner to come up with that same pattern.
Q  You mean it told you the general arrangment of the pajama top in those photographs--that was your word, right?
A  Yes.  You can't be sure of each little extra side piece which doesn't come into the general area anyhow.
Q  How about each little extra piece that goes right underneath the main areas of the folds?
Your photograph didn't tell you what was under there, did it?
A  Most of these can be seen in the photograph.
Q  All right, let's take a look at the photograph and you show us--by the way, you worked with little photographs, let's look at the little ones.  You did not even have a blow-up of these photographs when you were working with them, isn't that right, Ms. Green?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  OVERRULED.

BY MR. SEGAL:
Q  You did not have even a blow-up of this photograph when you worked with it?
A  No, but we could magnify it.
Q  Well, you could, but what did you do to magnify it?
A  Use a magnifying glass.
Q  Right.  And you kept going what--we were told that is not a scientific instrument some place in this case.

MR. MURTAGH:  OBJECTION.

MR. SEGAL:  See, they still don't think it is a scientific instrument.

MR. MURTAGH:  OBJECTION.

BY MR. SEGAL:
Q  Do you think it is a scientific instrument?
A  In certain cases.
Q  All right, what did you use to examine this photograph as you were trying to make a little mock-up?
A  Probably a magnifying glass.  Magnifying glasses come in different magnifications.  I don't recall exactly what magnification.
Q  Did you ever request to have a blow-up of Mrs. MacDonald's pajama top made so that perhaps you could get to the details of how the fabric was folded and arranged clearly before you, so that as you worked and tried to fold it you could be looking right at the photograph in an enlargement form?
A  I don't recall one.
Q  You don't recall having one; but my question was, did you ever ask for it?
A  No, I didn't.  Mr. Stombaugh made that main examination.  He studied that for some time; and we looked at it together and agreed that these were certain areas in this pajama top in these certain locations, and from that it could be folded.
Q  You and he looked at it using a magnifying glass some of the time, I guess; but the ques-tion is, didn't you ever ask to have a blow-up made of the area so that you could see as much detail as possible--to enhance the detail?
A  Sometimes blow-ups of things give you less detail than the smaller photograph.
Q  Well, how about ortho printing, where you take a color picture, you print it in black and white--gives you high contrast of all the details.  Did you ever use this technique to get the details in the photo?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  OVERRULED.

BY MR. SEGAL:
Q  Did you ever use such a process to get details on the photo?
A  No.
Q  Are you familiar that such a process exists and the FBI does it on occasion?
A  I am not sure just what they have; they have so many instruments in the photographic--I couldn't tell you all of them.
Q  Right; the one instrument used in this case was a magnifying glass, right?
A  I was referring to photographic equipment.
Q  Okay, photographs; all right.  But that was the only thing that was used here, would be a magnifying glass to look at the photograph?
A  Yes.
Q  Now, if the CID had said to you that either there was no photograph because somehow the photographer didn't get it, would you have been able to make the reconstruction and say you could put 48 holes into 21 different probes [sic]?
A  I'm sorry; I didn't understand your question.
Q  If there had been no photograph, and the CID had asked--it wasn't the CID, it was the Government lawyer--had asked you to try and put 48 holes into 21, could you have done it?
A  I don't know.
Q  All right, would you reflect upon it for a minute?  Was the picture necessary in order for you to make this little experiment, or could it have been done as in some crime scenes--that they find the pajama top alongside someone and say, "Look, could you see whether 48 will go into 21 in the body"?
A  I don't know; I didn't try to.
Q  Do you know whether it could be done?
A  No, I don't.

MR. MURTAGH:  Your Honor, I would OBJECT.

THE COURT:  All right, let me see all of you at the Bench--not all of you, but at least one from each side.


B E N C H  C O N F E R E N C E

THE COURT:  I have an indication that this jury is beginning now to get a little impatient.  I have done the best I can to keep them as happy as I can--so that everybody can have the full say.  I think, Mr. Segal, that you have beat this dead horse about as much as it needs to be beat, and I am seriously considering invoking rule 611(a) sort of to bring this phase of your cross-examination to a close.
    I don't want to do anyuthing in front of the jury that might embarrass you or anything, or prejudice your case; but I really think that what you have asked this witness has been asked enough times so that I see no possibility of your making any more hay on that particular point.

MR. SEGAL:  If I may express my view on this, Your Honor.

THE COURT:  Yes.

MR. SEGAL:  I think a fair reading of the record shows that this witness has repeatedly not answered the specific question I have put to her, and I have therefore repeated my question on a number of questions.
    I could, of course, appeal to the Court--we would have to have the question read back and the answer read back and the Court would have to decide whether she answered or not.
My view is that that is one style of trying a case.
    I am not sure that it is absolutely necessary.  I would just as soon be permitted without needless interruption to ask my question a second time, and say, "Now, answer the one that I have put to you."
    I am willing to accept the fact that, you know, Government witnesses will give you an-swers to X when you ask him about A, but I don't see why that should limit the cross-exam-ination until I get the answer to what I think is the question that I put originally.  That is all that I--

THE COURT:  (Interposing)  My whole point was that in my view your question has been put and answered succinctly on four or five occasions on this subject.  That's all I am going to say about that now.  Go ahead.

(Bench conference terminated.)


THE COURT:  Proceed.

BY MR. SEGAL:
Q  Ms. Green, in regard to the experiment with the probes that you did, would it be correct to state as follows: that you cannot say that the 48 puncture holes could be made to fit into 21 puncture holes in the blue pajama top if you also had to put two knives in the blue pajama top?
A  If I also had to put two knives in the pajama top--
Q  (Interposing)  In the blue pajama top, yes.
A  --That the holes could not be made; is that what you are saying?
Q  I said you are not able to state--are you--that you could make the 48 holes fit into 21 holes if you also had to accommodate two knife thrusts through those pajama tops?
A  I never said that.  I wouldn't know whether it would or not.
Q  And the answer is that you can't state that you could do this if you had to account for the two knife holes also.
A  I don't see what the two knife holes have to do with it.
Q  I realize that's your opinion.  I'm only asking you a question here.  You are unable to tell us whether you can repeat your experiment if you also had to accommodate two knife holes.  Your answer was no; you can't say.
A  I would think I could explain the holes with or without the knife holes.
Q  My question is that if you had to try to maneuver this fabric and line up the holes and all, if you also had to put in the two knife holes--put them in and hold them in place--have you any way of telling us today, based upon any experiment or work you did, that you could in fact do that?
A  I have no idea.  I haven't done it.
Q  That's all I wanted to ask you.  The second thing, in the same regard now, is that you don't have any idea--do you--whether you could in fact put 48 probes through 21 holes in the pajama top if you also had to put Colette's pink pajama top underneath it and accommo-date those holes?

MR. MURTAGH:  OBJECTION, Your Honor.  I think counsel has misstated the numbers.

THE COURT:  OVERRULED.

BY MR. SEGAL:
Q  I meant to say 48 and 21.  If I didn't say that, that's what I intended.  You have no way of telling us whether you could accommodate also 48 holes into a blue pajama top through a pink pajama top into the so-called 21 holes in the autopsy photo.
A  No; we didn't do that because we didn't see what significance that would be.  The prob-lem was to see whether or not they could be put through the blue pajama top.
Q  Again, the question is not whether--

THE COURT:  (Interposing)  One moment, please.  Were you asked that same question yes-terday?

THE WITNESS:  Yes, sir.

THE COURT:  And you gave the same answer?

THE WITNESS:  Yes, sir.

THE COURT:  All right, that's enough on that one.  Go ahead.

BY MR. SEGAL:
Q  Next, Ms. Green, I want to ask you: can you state whether you would be able to put 48 probes through 21 holes in a pajama top [sic] if you also had to accommodate two knives and the pink pajama top of Mrs. MacDonald all at the same time?

MR. MURTAGH:  OBJECTION.

THE COURT:  OVERRULED.

BY MR. SEGAL:
Q  Can you tell us whether you could have done that in view of the fact that you conducted this experiment?
A  I don't know.  I would have to try it.
Q  Don't know.
A  And I don't know whether the knives were put in at the same time as the ice pick holes.
Q  You don't know whether they weren't put in at the same time either.
A  That's what I say.  I don't know whether they were put in at the same time or whether that would be--
Q  (Interposing)  You have only the sketchiest knowledge of the facts in this case; isn't that right?

MR. MURTAGH:  OBJECTION.

THE COURT:  Let her finish, please.

BY MR. SEGAL:
Q  Now, have you ever had any training in scientific--what the scientific method is, Ms. Green?
A  What's your definition of "scientific method"?
Q  Well, I guess we didn't ask you about your original college training.  I don't know.  Did you have university training in science subjects?
A  I had a Bachelor's degree with a major in chemistry.
Q  All right, did you learn anything about the so-called scientific method while you were a student in college and had courses in chemistry?
A  We used scientific methods in the work, I would imagine.
Q  Do you have any--do you personally have any understanding as to what the term "scienti-fic method" means?  What does it mean to you?
A  It means going about something in a scientific way.
Q  All right, let me ask you this: as a person who has said that you had some training in the scientific method, I assume you believe the work you were doing in the FBI Laboratory was consistent with scientific method.  Did you believe that?
A  Yes.
Q  Well, as a person with some training in the scientific method, would you agree that trying to conduct an experiment about a past event that the same conditions that existed in the past must also exist for the experiment?  Would you agree with that?
A  As much as possible.  It's not always possible.
Q  Certainly--as much as possible.  And to the extent that you don't duplicate--would you agree also--to the extent that you don't duplicate as much as possible the events of the past, it tends to negate the value of any experiment; would you agree with that?
A  It would depend on the importance of the particular situation.
Q  Is there anything more important than a triple homicide case in your mind?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  OVERRULED.

BY MR. SEGAL:
Q  What did you mean?
A  I meant the importance of a particular examination--whether or not it is necessary to do one thing or another.
Q  Given the fact that when Mrs. Colette MacDonald died that she was wearing a pink pajama top, would you not agree that good scientific practice would require that any experiment at-tempted to recreate something about how she might have received her injuries would require that the experiment also have the pink pajama top in place?

MR. MURTAGH:  OBJECTION.

THE COURT:  SUSTAINED.

MR. SEGAL:  I have no further questions of this witness.

THE COURT:  Any redirect?

MR. MURTAGH:  Yes, Your Honor.

THE COURT:  Proceed.


R E D I R E C T  E X A M I N A T I O N  9:57 a.m.

BY MR. MURTAGH:
Q  Now, Ms. Green, let me ask you at the risk of belaboring the point: with respect to hole number 4, and I hand you now Government Exhibit 101--I will remove some of the tape on it
--and I want to direct your attention to the inside of the back panel.
    Now, at this time, let me show you Government photo in evidence 600(b) and ask you--let me put this up here, if I may.  Now, with respect to hole number 4, which side of the garment are we looking at, if you know, in that photograph?  And let me also show you--

MR. SEGAL:  (Interposing)  Let her look at one at a time, please.

MR. ANDERSON:  OBJECTION.

THE COURT:  Well--

THE WITNESS:  We are looking at the inside of the back panel.

BY MR. MURTAGH:
Q  Okay, and Ms. Green, if you know, is Government photo 600(b) an enlargement of the same negative from which Government photo 600 was taken?  Do you see that?
A  Yes.
Q  Okay, and do you know?
A  That's the inside of the back panel.
Q  Okay, but is 600(b) an enlargement of 600?  Come over and take a look.
A  I would say so.
Q  Now, do you know when this photograph was taken?
A  I don't recall.  I wasn't present when it was taken.  I don't know whether it was '71 or lat-er.
Q  Now, with respect to hole number 4, which side of the garment did you insert the probe through?  And let me find the probe, if I may.  Could you tell us, please, with respect to which side, while I'm looking?
A  Yes; through the inside of the panel.
Q  And, I believe, on the--let me ask you: do the holes 4, 5, and 6 from the photograph ap-pear to be of generally the same size?
A  They appear to be.
Q  Now, did you tear the fabric on the inside when you inserted this probe?  Let me hand you probe number 19 which has the numbers in descending order 4, 5, and 6 on a little white tag.
A  It's possible.  If so, I didn't intend to.
Q  But why don't you take a look from the inside--
A  (Interposing)  It looks larger now than it was originally.
Q  And why don't you insert that probe through the hole, and would you describe for the re-cord which side you are pushing it through?
A  From the inside to the outside.
Q  Now, does there appear at approximately 1:00 o'clock from the inside a much--another hole?
A  Yes; a tiny, little puncture hole.

MR. SEGAL:  I'm sorry.  I could not hear the witness.

THE COURT:  She said, "a tiny, little puncture hole."

BY MR. MURTAGH:
Q  Now, if we turn the garment around and look at hole number 4 where it has been circled.
A  Yes.
Q  Which hole is in the center of the circle?
A  The tiny, little puncture hole.
Q  Did you insert the probe through the tiny puncture hole from the outside of the garment in?
A  No.
Q  All right, now, let me ask you with respect to hole number or probe number 19: what does the "19" stand for?
A  "19" stands for the hole--the number 19 hole in the chest of the victim.
Q  And is that 19 as depicted in this photograph here?
A  Yes.
Q  Now, could you pick out hole number 19 on Government Exhibit 764?

MR. SEGAL:  Your Honor, I don't recall going through this on cross-examination.  I did hear it in direct examination.  I don't recall going into any of those photographs on cross.  We heard it at least once from the Government.

THE COURT:  This is redirect.  I take it you are directing your questions to matters brought up on cross-examination?

MR. MURTAGH:  Yes, Your Honor.  I believe Counsel brought out on cross-examination the elongated nature of that hole.

THE COURT:  Very well; ask your question.  If there is an objection, I will rule on it.

BY MR. MURTAGH:
Q  Pick out hole number 19 on that photograph?
A  Okay; it would be this puncture hole right here.
Q  And how would you describe the size of that as compared to the size of, say, this punc-ture hole here?
A  Larger.
Q  Now, let me show you Government photo 602(a) in evidence.  Do you recognize this por-tion of the pajama top--and I am referring to area numbered--well, holes 20, 21 and 22 ap-pear in the photograph?
A  Yes; that is the right panel of the pajama top turned inside out.
Q  Do you see this object I am pointing to here in the photograph?
A  Yes.
Q  What is it, please?
A  Thumbtacks.
Q  And this object here?
A  Thumbtacks.
Q  Now, with respect to hole number six, I believe on cross-examination you were asked--with regard to Mr. Stombaugh's report--which holes were exit and which were entry, if you recalled.  Do you remember that?
A  I am sorry; I did not understand.
Q  On cross-examination, were you asked--with respect to Mr. Stombaugh's 1971 report--if you recalled which holes were exit and entry holes?
A  Yes; I just recalled, I think, three.
Q  What did you say, if you recall, with respect to hole number six?
A  That it was an exit hole.
Q  And when you say "exit hole," what do you mean?
A  From the inside out--going from the inside to the outside of the fabric.
Q  Okay; what does that mean with respect to Government photo 600--well, let's assume that the garment is in that position as it appears in the photograph--that is, laid out in a flat plane.
A  Yes.
Q  In which direction would hole number six have been made?

MR. SEGAL:  Your Honor, I OBJECT.  This was not covered at all on cross-examination.  It does not have any relevance to it at all.

THE COURT:  OVERRULED.

THE WITNESS:  The probe, or ice pick, or whatever, would go through this hole and come back through this hole and back through this hole.

BY MR. MURTAGH:
Q  Now, with respect to probe number 19--which I believe we had here a minute ago--what is the significance, if any, of the order in which the numbers four, five and six appear on the probe?
A  Four, five and six on 19?
Q  Probe number 19.
A  I can't seem to find it.
Q  Well, let me strike that question, Ms. Green, and while you are looking for that probe, ask you another one.  In your reconstruction of 1974, let me hand you the photograph and direct your attention to probe number 19.  Would you read, please, the order in which numbers four, five and six appear?
A  Four, five and six.
Q  Okay; and what sequence, if you know, ma'am, did you insert the probe?
A  The reverse of what I indicated just now.  It started through four, from inside to out; back through five, from outside to inside; and back through six, from inside to outside.
Q  In doing that, did you fold the garment?
A  Yes.
Q  Now, with respect to holes 14 and 20, do you see 14 in photograph number 600?
A  Yes; right here.
Q  If you recall, ma'am, what did you say on cross-examination with respect to whether that was an exit or an entry hole?
A  That was an exit hole.
Q  Now, with respect to hole number 20, let me show you another photograph--602(a); and I believe you testified that we are looking at the inside of the front right panel?
A  Yes.
Q  Okay; and with respect to hole number 20, you said what?
A  That was also an exit hole.
Q  With respect to your reconstruction and the photograph that you have in your hand, in which sequence, if any, did you align those numbers?
A  Yes; I aligned hole number 20, 21 and 22 in that order to make hole number one in the vic-tim, so that hole number 20 would go from inside to the outside.  Assuming this is folded, it would go from inside to the outside, from the outside to the inside, and back through again.
Folded, it would make one thrust.
Q  Okay; now, let's assume that it is being worn in the same position--or that it is being worn in a normal position--that is, right side out.  From which side would the hole have been made, based on that determination?

MR. SEGAL:   That is OBJECTED to.  There is no fact in this case for that, Your Honor.

MR. MURTAGH:  I will withdraw the question, Your Honor.  Thank you.  Why don't you resume your seat?

BY MR. MURTAGH:
Q  Let me hand you Government Exhibit 1138, which I believe you were shown on cross-ex-amination.  And I believe that is the photograph that Mr. Stombaugh marked various parts of the pajama top on.  Do you recall that?
A  Yes.
Q  And I believe you were asked on cross-examination whether you were able to determine from that photograph what parts were folded under with respect to the portion on the body, is that correct?
A  Yes.  You can tell the areas of the pajama top and how they were folded.
Q  Are you referring to the areas appearing at the top?
A  Yes.
Q  And directing your attention to the part of the pajama top that trails off there from the body, depicted on the floor--by examination of that photograph are you able to determine what portions of the pajama top are not folded over?
A  Yes.
Q  And if you would tell us, please, what portion is not folded under?
A  The left sleeve and the left front panel.
Q  Okay.  I believe also you were asked yesterday on cross-examination whether the 48 holes could have been realigned, I think, with 24 probes, do you recall that?
A  I don't remember the number, but I know it was a different number.
Q  Well, let me ask you this: if you were starting out, would it be correct that you could put 48 probes through 48 holes?
A  Of course, yes.
Q  Would that be the easiest thing to do?
A  Yes.
Q  Okay, and at what point, if you know, ma'am, is your range of motion limited by the inser-tion of successive probes?

MR. SEGAL:  Into what material?

MR. MURTAGH:  Into the pajama top.

BY MR. MURTAGH:
Q  Do you understand my question?
A  Well, it would depend on the--what the pajama top was over, as to the range of move-ment--
Q  (Interposing)  Let me ask you this: let's say you have inserted 20 probes, and I will ex-clude from that probe number 21; you have not inserted that at this point, okay?
A  Okay.
Q  Now, with respect to the holes which you have aligned under probe 21--that is, holes 1, 2, and 3--is your range of motion--that is, the amount of movement that you can make with the pajama top and still insert probe number 21--greater or lesser?  Do you understand my question?
A  I'm not sure exactly.  I know that they wouldn't necessarily be lined up exactly.  You might have to move them a fraction of an inch or something to line them up exactly with these other 21 probes in there.
Q  Could you move them, say, four inches, and still align them?
A  I doubt that very much.
Q  Okay, with respect to the left front panel and left sleeve, could you align the 48 holes with 21 probes, if the left front panel and left sleeve were folded under?  Do you understand my question?
A  I wouldn't think so, if they were right under the probes.
Q  What would you have to do in order to align them or to insert the probes?
A  If the left seam was underneath these areas?
Q  Well, let me rephrase my question: would you have to puncture the left sleeve and left front panel?
A  Yes, they would be punctured; yes.
Q  Now, Ms. Green, on cross-examination I think you were asked several times with regard to various crime scene photographs and the manner in which you folded the pajama top.  Let me ask you, did you fold the pajama top--that is, right sleeve inside-out--as closely as you could to the manner in which it is depicted on the photographs?
A  Yes.
Q  Okay, my second question is: did you place the pajama top after it was so-folded in ex-actly the same position as it appears in the crime scene photographs?
A  On a body?
Q  On a body.
A  No.
Q  Now, with regard to Mrs. MacDonald's pajama top, I believe it was brought out on cross-examination that her pajama top had some 30 puncture wounds, do you recall that?
A  I believe so, uh-huh (yes).
Q  Now, there's been testimony from Dr. Gammel, the pathologist who performed the autopsy, that Mrs. MacDonald had 21 puncture-type wounds in her chest, and I believe three in her left arm.  So my question is: if there were 30 puncture holes in her pajama top and the maxi-mum number of puncture holes in her body is 24, would some of the punctures of necessity have had to have gone through holes in her garment?

MR. SEGAL:  That is OBJECTED to, Your Honor.

THE COURT:  SUSTAINED.

MR. MURTAGH:  Your Honor, I believe that concludes redirect.

THE COURT:  All right, call your next witness.

MR. SEGAL:  Very brief on the recross.

MR. MURTAGH:  Your Honor, I don't believe I brought out any new matters.

MR. SEGAL:  I think you have--in one matter, Your Honor.

THE COURT:  I won't know until he asks his question.


R E C R O S S - E X A M I N A T I O N  (10:17 a.m.)

BY MR. SEGAL:
Q  I got the impression from the question that Government counsel asked you that you thought perhaps hole number 4 as marked on the outside might have been a thumbtack hole, is that what you believe?
A  Yes.
Q  Do you know of a single other thumbtack hole on that pajama top that was circled and given a number?
A  No, sir.

MR. SEGAL:  That's all.

THE COURT:  Everybody through?

MR. MURTAGH:  Yes, sir.

THE COURT:  One moment.


E X A M I N A T I O N  (10:18 a.m.)

THE COURT:  Now, if I understand your testimony, you said there were 48 puncture holes with which you worked?

THE WITNESS:  Yes.

THE COURT:  Then, somehow or other another hole, which may or may not have been made by a thumbtack, got in the act?

THE WITNESS:  Yes.

THE COURT:  And that was labeled on one side--or was labeled on both sides; but the thumbtack hole was labeled on the outside, whereas the real one with which you were work-ing, with the same number, was on the inside, is that right?

THE WITNESS:  That is right.

THE COURT:  Now, if you add that thumbtack hole, then, to the 48 with which you were working, would there be 49 holes really?

THE WITNESS:  In there now--yes.

THE COURT:  Very well.  If that inspires further interrogation on that point alone, I will hear you.

(No response.)

THE COURT:  You'd better go.

THE WITNESS:  Thank you.

(Witness excused.)

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