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1979 JEFFREY MACDONALD CASE TRIAL TRANSCRIPT

August 14-15: Dr. John Thornton

(Whereupon, DR. JOHN I. THORNTON 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  12:38 p.m.

BY MR. SEGAL:
Q  Dr. Thornton, what is your professional occupation, please?
A  I am employed as an Associate Professor of Forensic Science at the University of California at Berkeley and occasionally as a consultant in matters of physical evidence.
Q  In one paragraph, can you tell us what forensic science is?
A  "Forensic" comes from the Latin word meaning "of the forum," and the forum in Rome was a place where debates were held.  It was also a courthouse, so forensic science is science that is exercised on behalf of the court, on behalf of law, and is intended to assist in the re-conciliation of various matters--both criminal and civil.
Q  What is your education, Dr. Thornton, in regard to the area of forensic science?
A  I have a Bachelor of Science in Criminalistics from the University of California at Berkeley, a Master of Criminology also in Forensic Science--Criminalistics--from the University of Califor-nia, and a Doctor of Criminology degree but in Forensic Science from the University of Califor-nia.
Q  And your current position at the University of California is teaching in what area?
A  In forensic science.
Q  And what courses do you teach currently?
A  Currently, I teach both graduate and undergraduate courses dealing with a wide range of physical evidence; the analysis of such things as hairs and fibers and blood stains, bullets, soil, glass, safe insulation, paint.  I think I mentioned hair.  I teach a class in the microscope
--how to use a microscope, which is both for the benefit of the forensic science students and also for students in other disciplines such as zoology, botany, even forestry on some oc-casions.
Q  Have you taught other courses in the past different from the ones you have described in the area of forensic sciences?
A  Yes, I taught criminal investigation at the University of California.  This was when there was a criminology department.  That has been terminated; the forensic science program has been continued, but the general criminology program at Berkeley does not exist anymore and I don't teach criminal investigation at this time.
Q  Now, do you have any practical experience in the field of criminalistics and forensic sci-ence work?
A  Yes.
Q  Would you describe what that is, please?
A  I worked in a crime laboratory for a period of nine years to the day, as a criminalist, as a supervising criminalist and as a laboratory director.  This was in the crime laboratory of the county sheriff's department of Contra Costa County, California.
Q  And the Contra Costa County is a large suburban county near San Francisco, is that cor-rect?
A  That is correct.  At the time that I worked there it had a population of about 600,000.
Q  And as you are working in various positions in that crime laboratory, including the director, were you involved in the processing of evidence that related to homicidal cases?
A  Yes.
Q  In how many homicidal cases did you deal with the physical evidence?
A  I could just estimate.  I would say probably about--between 150 and 200 cases.  Not all of those involved crime scene processing.  I think I probably participated in the scene pro-cessing of about 100 homicide cases.
Q  And I assume that you did in many other cases besides homicide cases you just enumerat-ed for us?
A  Yes.
Q  Now, are you a member of any professional organizations that deal with the area of foren-sic sciences and criminalistics?
A  Yes.
Q  And what are the principal organizations that you belong to?
A  The American Academy of Forensic Sciences, the California Association of Criminalists, and the Criminalist Management Association.  There is one other--it is a foreign organization headquartered in Belgium.  The name of it is the Academe Internationale de Medicine Legal.
Q  Have you held any positions of responsibility in any professional organization in the area of forensics, forensic science or criminalistics?
A  Well, I think so, yes.
Q  Would you describe just briefly some of those positions that you held in professional or-ganizations?
A  I am currently the secretary of the criminalistic section of the American Academy of For-ensic Sciences.  I have held the position of president of the California Association of Criminal-ists.  I was editorial secretary of that organization for three years.  I have done some com-mittee work.  Do you want me to go into that?
A  No, I think that won't be necessary.  Have you ever received any honors or recognition from your professional colleagues in the field of criminalistics?
A  I received a criminalistic section award of the American Academy of Forensic Sciences this year.
Q  And what is that award and for what circumstances is it awarded?
A  Well, I am not quite sure what the thinking was that went into my receiving it.  It has been given twice.
Q  The award has been given twice in the history of the Association?
A  Yes.
Q  And what is the award as far as you know, as far as the citation that went with it--what was it intended to recognize as far as your work and your service in this area?
A  My sense is that it was for two things: publications and research in the area of forensic science; and the other thing was my involvement in a nationwide crime laboratory proficiency testing project that went on for a period of years.  Well, it is still continuing but under a slightly different--
Q  (Interposing)  What is your involvement in this lack of crime laboratory evaluation pro-gram?  I am not interested in the specifics; just what is the program that you are involved in and what is it supposed to do?
A  For a period of, I believe, three years, the Law Enforcement Assistance Administration of the Department of Justice funded a Nationwide Crime Laboratory Proficiency Testing Project.
    This was the first effort along the lines of a nationwide proficiency testing project; and blind samples were distributed gratis to any laboratory that wished to participate.  The labor-atories would analyze the samples, report the results.  The results were then tabulated and published again to the participating laboratories.
    It is a means of quality assurance within the crime laboratory.  I participated on the proj-ect advisory committee during this period of time.  The project is still in force, but now it is on a subscription basis and it is no longer funded by the Law Enforcement Assistance Admin-istration.
Q  You said that also one of the other aspects of your recognition for the honor which you received from the American Academy was for your publications.  Have you written any books in the area of criminalistics or forensic science?  When I say "written," or edited by--I mean that term broadly, then you have explained what you have done?
A  Books, you're asking?
Q  Yes, please.
A  I've edited the second edition of Kirk's Crime Investigation.   This is a posthumous edition.
I have written another book on the Forensic Characterization of Soil Evidence, which is cur-rently in press.
Q  Let me ask you about these books that you did--the second edition of the Kirk book in crime investigation.  What subject matter did you cover in the revision of that particular book?
A  This deals with a wide variety of physical evidence forms, most of which--or many of which I have referred to a few moments ago: characterization, identification of such things as hair and fibers, soil, glass, paint.
    Practically anything can be physical evidence at one time or another, and the text is writ-ten in order to provide the reader with a comprehensive understanding of the nature of phys-ical evidence and protocols of analysis.
Q  When you say "the reader," was this book aimed for the general public or aimed for any specific scientific audience?
A  It was aimed for the scientific audience principally.  It would have some appeal to a police officer.  My involvement in the book--in my involvement with the book I was really writing for the scientist in the laboratory as opposed to the police officer.
Q  Are you currently engaged in preparing a third edition of that book?
A  Yes, the third edition is a completely new--it is not an edited or abridged or amended text.  It is entirely--will be entirely rewritten.
Q  Now, aside from the two books that you have mentioned that you have contributed to, have you contributed chapters or portions of other books that have been published which deal with forensic sciences and criminalistics?
A  Yes.
Q  Just tell us how many chapters or such portions of chapters have you contributed to such books?
A  I think about three chapters of books.  That includes one or two that are currently in press and have not appeared as of this moment, but have been accepted for publication.
Q  How many other publications have you had--that is, articles that you have written in scholarly publications and scholarly journals--again in the area of forensic sciences and crim-inalistics?
A  About 70.
Q  Just give us a spectrum, if you will, of the topics that you have covered in the 70 articles that you have written for scholarly journals?
A  They cover a wide range of physical evidence types.  The last paper which appeared was in analytical chemistry.  It dealt with the photolitic degradation of LSD and lysergic acid and diethylamide.  A previous paper dealt with the use of a personality inventory test for the se-lection of crime scene technicians.  There are several statistical papers.  There are papers on soil.  There are several on blood.  One is on seminal fluid.  One or two are on photography of the Luminol reaction which is a test for blood at crime scenes.  Well, I could look at the list if you wish.
Q  I think we need nothing further.

MR. SEGAL:  At this time, I would like to have marked as Defendant's exhibit a copy of the curriculum vitae of Dr. Thornton.

THE COURT:  All right, sir.

MR. SEGAL:  I tender it to the Government for examination, if Your Honor please.

(Defendant's Exhibit 65 was marked for identification.)

MR. SEGAL:  If Your Honor pleases, I offer as an expert witness on behalf of the defense in the area of criminalistics and forensic sciences, Dr. Thornton, for any cross-examination as desired by the Government.

THE COURT:  Very well.

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

THE COURT:  Yes.


B E N C H  C O N F E R E N C E

MR. MURTAGH:  Your Honor, we believe Dr. Thornton is going to testify about fabric impres-sions and blood stains and blood splatters and things of that nature.  I don't believe he has been qualified as an expert in that regard.

THE COURT:  I thought that the qualification was very general.  I don't know what he can do, but heretofore, for your people, you have established their expertise in various fields about which--to tell me a man is an expert in criminalistics would not tell me very much about his ability to analyze a blood stain or anything.

MR. SEGAL:  I will expand it.

THE COURT:  You might want to go into that a little further.

MR. SEGAL:  Certainly, Your Honor.

(Bench conference terminated.)


BY MR. SEGAL:
Q  With the Court's indulgence, I would like to ask you several additional questions about your background and your experience in forensic science and criminalistics.  Have you done work in the area--teaching and writing in the area of blood typing, blood identification, and blood stains?
A  Yes.
Q  Could you tell us some of the work you have done and some of the background you have in those areas?
A  Some of my early work dealt with the examination of blood stains.  May I refer to a list?
Q  Yes.  Would you like to have a copy of the vitae or do you have one there?
A  I have a copy.
Q  Certainly.  Why don't you refer to that and tell us the appropriate matters?
A  In 1963, there was a publication entitled "The Demonstration of the Rhesus Antibody."
This is the RH antibody in dried blood stains.  In 1964, there was a publication entitled "The Individualization of Dry Blood Samples by Means of the Demonstration of the Syphilis Anti-body."  In 1972, there was a paper, "The Detection of the Rhesus Factors in Bloodstains."
Q  Let me ask you--I am sorry.
A  In 1974, the 2nd Edition of Kirk's Crime Investigation was published.  That covered fabric impressions.
Q  I am not up to the subject of fabric impressions.  I wanted to ask about the blood.
A  I beg your pardon.
Q  Did Kirk's edition, this 2nd Edition, or the current 3rd Edition, include writing by you in the area of blood stain, typing identification, and comparisons?
A  Oh, yes.
Q  Have you taught--well, before you taught, in the nine years that you worked in the Con-tra Costa Criminalistic Laboratory and including your director, did you do work in blood typing, blood identification, and comparison?
A  Yes, I did.
Q  Would you estimate the number of cases in which you wer asked to make either compari-son or identification?
A  Well, over 100.  I don't know.
Q  Are you talking about blood identification alone?
A  Yes, talking about cases--not examinations.
Q  No, no, number of cases.  I assume the examinations would be greater than just the num-ber of cases.
A  Yes.
Q  Have you taught in the area of blood typing, identification, stain identification, and com-parisons?
A  Yes.
Q  And your teaching has been both at the undergraduate and graduate level of the univer-sity?
A  Yes.  We no longer have an undergraduate program.  We have a graduate program at the present time; although, we do have undergraduate courses.
Q  In the crime laboratory evaluation program which you were selected to supervise, does that involve supervision of the work done by laboratories and the results found by laborator-ies in the area of blood stain identification and comparison?
A  Yes, but I don't want to be deceptive on this point--you said "supervise."  I was one of a group of individuals that advised the staff of the Forensic Science Foundation in how to con-duct this testing.  In the area of blood, however, I did make up one of the blood unknowns that was sent around to several hundred different laboratories.
Q  Now, in the area that we have heard described here in this trial here--

THE COURT:  (Interposing)  Are you going to another area?

MR. SEGAL:  Yes, Your Honor.

THE COURT:  Well, we are going to lunch.  We will take our lunch recess, members of the jury.  You may retire now and we will take our recess in just a moment.  We will come back today at 2:30.  Don't talk about the case.

(Jury exits at 12:58 p.m.)

THE COURT:  All right, now, recess us, please, 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.)

THE COURT:  Good afternoon, ladies and gentlemen.  Any further questions of this witness?

MR. SEGAL:  Yes, Your Honor.

(Whereupon, DR. JOHN I. THORNTON, the witness on the stand at the time of recess, re-sumed the stand and testified further as follows:)


D I R E C T  E X A M I N A T I O N  2:31 p.m.  (resumed)

BY MR. SEGAL:
Q  Before the luncheon recess, Dr. Thornton, you were talking about your experience, train-ing, and background in the field of blood.  I wanted to ask you whether you had done any scholarly writing in the area of blood as related to forensic matters, blood stain identification, typing, and I believe you were telling us about a number of articles you had written on that subject?
A  Yes.
Q  Approximately how many articles have you written in regard to blood typing, identification, and staining?
A  I don't know.  I read the titles of three.  I would have to count them up.  Some number between three and six, perhaps.
Q  Have you ever testified in Court in criminal matters in regard to blood identification, typing, and stain matters?
A  Sure.
Q  When you testified, was your testimony received in the capacity of an expert witness?
A  Yes.
Q  On how many occasions would you say that you have testified as an expert in regard to blood matters?
A  I really don't know--something in excess of 50, I am certain.
Q  Have you ever had occasion to do identification of stains to determine whether they were caused by urine or not?
A  Yes.
Q  Have you done work in the laboratory for identification of urine and urine stains?
A  Yes.
Q  Have you ever testified in Court in regard to your opinions and conclusions about whether a given stain was produced by urine or not?
A  Yes.  Also, I recall one journal article that I co-authored on the identification of urine stains.
Q  In addition to the journal article, you were saying that you have been received as an ex-pert witness by Courts in criminal matters on the subject of urine identification?
A  Yes.
Q  Let me move to a different area of your background, please, if I may, an area which has been identified here in Court previously as it has been called fabric damage and fabric impres-sions.  Do you have any experience in regard to doing analysis and identification of fabric damage and fabric impressions?
A  Yes.  I have worked on a considerable number of cases in which fabric impression or dam-age to garments or upholstery comprised a portion of the physical evidence.
Q  When you say "a considerable number," could you give us an approximation of how many cases that might be on which you have worked on such fabric damage and fabric impres-sions?
A  Oh, several dozen.
Q  I am sorry?
A  Several dozen.  I really don't know.  I would think it would be some number between 50 and 100, perhaps more.
Q  As a conservative figure, you have worked in at least 50 cases in which the issue of fabric damage and fabric impression were involved in criminal matters?
A  I think 50 would be a conservative number; yes.
Q  Have you been called upon to testify in Court in criminal matters in regard to fabric dam-age and fabric impressions?
A  Yes.
Q  And has your testimony been received in the capacity of an expert witness on those sub-jects in Court?
A  Yes.
Q  Could you give us an estimate of the number of cases in which you have testified about fabric damage and fabric impressions as an expert?
A  I would say less than ten.
Q  Have you had occasion to do any scholarly writing in regard to subject matter of fabric damage and impressions?
A  Not really.  The Kirk textbook that I edited, I adjusted that chapter somewhat, but the majority of that chapter was written by Dr. Kirk, and I did not have a heavy hand in the writing of that chapter.
Q  You were familiar with the contents of the material contained in Dr. Kirk's chapter which you edited on fabric damage and fabric impressions?
A  Yes.
Q  Lastly, I want to ask you: do you testify as an expert witness only on behalf of Defen-dants in criminal cases?
A  No.
Q  Have you testified on behalf of the prosecution?
A  Yes.
Q  I am talking about after leaving the Sheriff's Department in California--have you testified as a prosecution witness in criminal cases?
A  Yes.
Q  When was the most recent occasion when you testified on behalf of the prosecution in such a case?
A  It was the end of May of this year.  That was for the District Attorney for the city and county of San Francisco.

MR. SEGAL:  I have no further questions.  If Your Honor pleases, at this time, I would tender again Dr. Thornton as an expert in the area of forensic science and criminalistics with the particular emphasis on blood identification, typing, and staining, fabric impressions, fabric damage, identifications of urine.

THE COURT:  Very well.

MR. SEGAL:  Does the Government have any questions at this time?

(Mr. Murtagh nods negatively.)

BY MR. SEGAL:
Q  Dr. Thornton, I would like to direct your attention first of all, if I may, to certain testimo-ny--but before I get to that, let me ask in this case; have you read the testimony of Paul Stombaugh of the FBI who testified earlier in this case?
A  Yes, I have.
Q  Have you read the testimony of Ms. Shirley Green, a techician from the FBI, who also tes-tified in this case?
A  I read the testimony of Ms. Green when she testified the first day.  I heard her testimony the following morning.
Q  And you have heard the testimony?
A  Yes.
Q  Have you had occasion to read the reports that Mr. Stombaugh prepared in connection with his work that he testified to in this case?
A  I have read several reports that he had written.
Q  All right, now, I want to first of all direct your attention to one of the subject matters that was testified to in regard to fabric tears.  I want to ask you a question concerning a state-ment made by Mr. Stombaugh at page 4074 of his testimony given here before this Court on August 7th, 1979.  At that time, Mr. Stombaugh was testifying with respect to puncture holes in the blue pajama top in this case and made the following statement, which I will seek your opinion.  "In examining the puncture holes, we noted that there was no tearing.  The holes were clean, and it was my conclusion that the holes had been placed into this garment while the garment itself was in a stationary position."
    First of all, have you read that testimony also?
A  Yes, I have.
Q  Do you agree with that testimony?
A  No, I don't believe it is true.
Q  What is the basis of your statement that you do not believe that testimony is true--that the holes in that garment were made or placed in it while the garment was in a stationary position?

MR. MURTAGH:  I would OBJECT unless there is a proper foundation other than just reading the testimony.

THE COURT:  Well, the witness says he disagrees with a conclusion offered and testified to by another expert witness.  I suppose the question is, "How come he does?"  I will let him say.  I would remind counsel and the jury that it is for the jury to determine whether or not testimony of any witness is true.  It is not the province of any witness to say that other testimony is true or untrue.

BY MR. SEGAL:
Q  Let me put it to you in an additional fashion.  Do you agree or disagree with the opinion expressed by Mr. Stombaugh that the puncture holes in the blue pajama top were made while the garment itself was in a stationary position?
A  I disagree that that is the only possible conclusion.
Q  Let me ask you: have you ever examined the blue pajama top we have talked about?
A  Yes.
Q  What is the basis, if any, for your statement that you disagree with the statement made by Mr. Stombaugh as I have read it to you?
A  I conducted a series of experiments in which I put a target in motion and stabbed at it with an ice pick.  I then examined the holes resulting from those punctures and found that the holes were circular in appearance despite the fact that the target was in motion.
Q  Let me back up if I can for a second.  I neglected to ask you one thing about this state-ment that Mr. Stombaugh made.  Are there any authoritative textbooks or articles or trea-tises which you know of which support the opinion to be made on the basis that Mr. Stom-baugh made his that this garment had to be stationary to have the puncture holes made in the fashion they were made?
A  Not to my knowledge.  I suppose that there could exist something in the literature that discusses this topic, but not to my knowledge.
Q  You are not aware of any authority, textbook, or treatise which discusses or supports such a conclusion made without experimentation or demonstration?
A  No.
Q  Now, before I get back to the basis of your opinion, did you examine the holes that were made in the blue pajama top in some fashion?
A  Yes.
Q  How did you conduct your examination?
A  With the aid of a seven "x" or seven-times magnifying glass.
Q  Did you do any other examination before you devised the test you described--and I'll come back to that test very shortly?
A  Not to my knowledge.
Q  In your opinion, based upon your own background, education, knowledge, training, and ex-perience in the field of criminalistics, is it possible to have arrived or is there a scientific basis for Mr. Stombaugh to have arrived at the conclusion he did without conducting some experi-ments in regard to tearing or puncturing the fabric?

MR. MURTAGH:  OBJECTION.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  What was the experiment that you designed or prepared in order to test the thesis Mr. Stombaugh offered that the blue garment had to be in a stationary position in order to have the holes that it did?
A  Well, to answer that question, it would assist me to be able to show a slide which illus-trates the experimental configuration that I used in this series of experiments.

MR. SEGAL:  All right, with Your Honor's permission, may we show the slide that Dr. Thornton has prepared?

THE COURT:  It is all right with me.

MR. MURTAGH:  Your Honor, I think we should approach the bench on this.  I don't know what slides he is talking about.

THE COURT:  That's what I meant when I said it was all right with me.  I was not sure it would be with you.

MR. MURTAGH:  What garment are we talking about?

THE COURT:  Tell him what you are supposed to do.  Come on up.


B E N C H  C O N F E R E N C E

MR. SEGAL:  Dr. Thornton will describe a series of experiments he did.  He will tell what type of fabric he did it with.  He will tell under what the conditions are, and he will show how it was done by the illustration in the slides.
    I represent to the Court that the fabric used was of the same composition--that is, a 65-35 cotton and polyester mix.  He also did it not only on fabric; he did it on pajama tops in varying conditions.  And he will describe all the bases from which he arrived at his opinion.

THE COURT:  Well, I believe just a few days ago you were up here saying that you couldn't do an experiment because you couldn't duplicate the conditions.  Now, one of the conditions that has been in evidence here which you have not told me he duplicated--he may have done it--how many times had that fabric been washed.

MR. SEGAL:  He will be able to testify about fabrics that were both washed and unwashed as to the effect.  He will describe fully the experiment that he did and what the basis was.  Then the jury can draw a conclusion of whether it's valid.  I will say this, Your Honor: it's a hell of a lot better foundation for his experiment than Mr. Stombaugh's bare-faced conclusion that this is so.  He never testified to any demonstration.

THE COURT:  Well, I didn't think that was any experiment at all.  I thought that was just sim-ply an attempt to reproduce what could have happened at the accident [sic] scene--

MR. SEGAL:  (Interposing)  The section I have read, Your Honor--

THE COURT:  --but this is an entirely different proposition.  Now, this is an experiment.  I don't know whether you have any--maybe it is academic.  Maybe you don't have any objec-tion to it.

MR. MURTAGH:  We do have an objection, Your Honor.

THE COURT:  On what grounds?

MR. MURTAGH:  One, we think that pajama top is virtually unique because of its age and general condition.  I don't think you can duplicate that.  The pajama top that I saw Dr. Thornton mark the holes in was a brand new, pale blue pajama top, and I would object to that.  That's a different condition altogether.  Also, I don't know how you can duplicate--you know, put a fabric in motion.  I think, Your Honor, that is an insufficient basis for the experi-ment and I think we ought to see these slides out of the presence of the jury, if at all.

THE COURT:  Well, now, I might let you do that.  I might let you take a look at them, but I am inclined to let them go on through.  Everything that you told me so far is just something that you can show up by cross-examination, if you are able to do it--that the age of the fabric and the way it was moving, all that stuff, and you might submit an instruction on it, if you want to, about the experimental evidence.
    I guess there is one--at least among all this wealth of legal talent, someone can devise one.

MR. SMITH:  I say I can work on it.  I will work up an instruction that Mr. Murtagh will like very much.

THE COURT:  Somebody asked me with a completely straight face within the last 24 hours if it was possible for a Federal judge to direct a verdict of guilty.

MR. BLACKBURN:  We would go along with that.

THE COURT:  So, I said I don't know, but if the motion is made, I will rule on it.

(Bench conference terminated.)


THE COURT:  All right, let the matinee begin.

MR. SEGAL:  It would help if you can come down from the witness stand and operate the slide projector.

BY MR. SEGAL:
Q  All right, now, will you describe the slide, please, and the portion of the experiment that you say you conducted that you say this slide depicts?

THE COURT:  If he stands where he is now, part of the jury is going to see only his back.

THE WITNESS:  Is this all right?

BY MR. SEGAL:
Q  All right, and if you would go ahead, please, and I will just ask you to keep your voice up, Dr. Thornton?
A  This slide illustrates the basic arrangment of the experiment that I conducted.  I took a piece of 3/4-inch plywood, put a screw eye on either end, and affixed a piece of clothesline to the screw eye on either end.
    By whipping the loose end of the cord, where you see the hand in the upper left-hand corner of the slide, the sled can be placed into motion to and fro.  On the sled is affixed a target.  Over the target is placed a piece of cloth which is 65 percent polyester and 35 per-cent cotton.
    When the sled is in motion--well, I'll back up just a moment.  There was a particular rea-son for designing the experiment in this manner, and that is that the motion that I can pro-duce by this is a close approximation of a harmonic oscillation.
    The significance of that is that it facilitates any computations that I might want to do concerning the velocity of the sled and the target.  When the sled was in motion, approxi-mating the maximum motion of a human, the thrashing around, say, on the floor or some other hard surface, I made a number of tests of punctures into the target material.
    Then I removed the fabric and examined it under the microscope, looking for the configur-ation of the margins of the puncture.  The second slide illustrates essentially a circular punc-ture mark in the fabric.
    This is a photo macrograph on the polyester-cotton fabric with a circular impression.
Q  When this particular hole was made, what was happening to the target in which this piece of cloth was fashioned?
A  This sled was in motion.  The second slide illustrates what might be expected from the elongated tear.  This is not a type of hole that I see with an ice pick puncture into the target when the sled is in motion.
Q  Now you described the hole that you saw on the immediately preceding slide.  How was that hole made, Dr. Thornton?  What kind of instrument was used to create the puncture?
A  Basic ice pick.
Q  Now the hole that is on this third slide, that is now on the screen, how was this hole made?
A  This is made by an ice pick also, that was made with unsupported fabric and gripping both the top and bottom of the ice pick and dragging it through the fabric.
Q  Are these the only slides you want to show us at this moment?
A  Yes.
Q  I would like to ask you some more questions, but if you could put the light on, please.

(Pause.)

BY MR. SEGAL:
Q  Could you explain somewhat--could you explain in somewhat more detail what the signifi-cance was of the experiment in which you had the piece of fabric mounted on the target head that was going back and forth.
    You mentioned that you were trying to replicate the speed of a person.  Can you tell us how it was done and on what basis you arrived at the conclusion that you were, in fact, re-plicating such motion?
A  That motion is an approxmiation of the maximum distance that a person could move, other than striding.  We are not talking about walking or running, we are talking about motion of the torso.  I set the sled into motion and varied the speed until I felt that a human body could move no faster than the sled in motion.  It is only an approximation, but I think that it is a realistic approximation.
Q  This particular fabric that we are seeing here, was that a new or used fabric?
A  That was a new fabric.
Q  And the combination of fibers in that fabric was again, what, 65 polyester, 35 percent cotton?
A  Yes, actually the yarns are a blend of the cotton and the polyester.
Q  Did you do only one experiment to be shown here or did you do more than one experiment?
A  No, I did quite a number of experiments.
Q  How many did you do altogether?
A  Approximately 50.
Q  I'm sorry?
A  Approximately 50.
Q  Fifty?
A  Yes, I stopped counting after that.
Q  Now, are all these experiments precisely the same, using the same type of fabric, the same--whether new or used fabric?
A  It was all new fabric.
Q  All new fabric?
A  Yes.
Q  Did you attempt any experiment to determine what would happen if you used a fabric of the same combination--65/35--that was not new?
A  No.
Q  Was there any reason why you chose not to do that?
A  Not particularly; no.
Q  Did you conduct any experiments in regard to this matter using a not-new fabric?
A  No.
Q  Is there any reason for you to believe, based upon your experiments and your knowledge, that the results would be different in terms of the shape of the hole that you would get if the fabric were new or had been washed a number of times?
A  I think an older fabric would be more susceptible to the elongating tears.  I wouldn't be able to quantify that, in my opinion, in that regard.
Q  What, if anything was different in any of the 50 experiments?  Did you find the same shape holes and sizes, different shape holes and sizes, or what did you do?  Why did you do 50 tests, really, is what I am asking for?
A  I don't know why I did 50.  I say 50 is the minimum number.  The tests are very easily conducted.  I can make 50 punctures in a very short period of time.  I felt that that was certainly an adequate and representative sample; that if there was variation in the appear-ance of the puncture marks, it certainly would have appeared in 50 repetitions.
Q  How many puncture marks did you make altogether in these 50 demonstrations?  How many total puncture marks did you make in the fabric?
A  Over 50.
Q  Is that the number of holes or the number of times you did the demonstration?  I'm not clear on that?
A  It is the number of holes.
Q  The number of holes; I see.  Were there any significant differences in the type of hole that you made when you were doing these punctures of the fabric and as the fabric was be-ing moved back and forth on the sled?
A  No.
Q  What did the holes all appear to you, as you examined them microscopically?
A  They were all circular.
Q  Did you compare the way they looked to the way the holes looked on the blue pajama top introduced in this case?
A  Well, yes; in an abstract manner.  Not in a direct comparison; no.

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

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  When you say in an abstract manner, as opposed to direct comparison, what do you mean, Dr. Thornton?
A  I knew that the holes in the pajama top were circular in their appearance.
Q  You know that how--just to be clear?
A  From the report of Mr. Stombaugh, in part.
Q  I beg your pardon?
A  In part.
Q  What other part led you to the conclusion about what the holes looked like in the blue pajama tops?
A  My own observation of the pajama tops.
Q  You looked at those holes yourself?
A  Yes.
Q  Then you compared, but not at the same time, you say, the holes that you made in the pajama top, the fabric you have shown us here as a demonstration?
A  That is correct.
Q  Again, did you find any significant difference in the holes that were made in the piece of fabric moving, as you showed it, as in contrast with the holes shown in the fabric that is known as the blue pajama top in this case?
A  No, I did not.  I might mention that I also conducted one additonal series of bloodstained fabric and again, I observed the same results: that the holes--even with the target in mo-tion--were circular imprints.
Q  Now, tell us about the second series of tests you did.  What was the matter with these bloodstains.  Why did you introduce bloodstains in the test and what was the effect of hav-ing done that?
A  The significance was not clear to me and it still isn't, but it was another variable that I thought that I should consider in the experimental design.
Q  Would it be fair to say that since you had no way of knowing in advance whether the fabric was bloodstained, which could change the shape of the hole, you decided to test out that question?
A  That is what I meant; yes.
Q  All right.  I suppose I'm dumb enough not to know what you are doing, if I can say it that way.  Let me put it to you this way.  How many tests did you do using bloodstained fabrics?
A  That was included in the 50.
Q  And how did you create the bloodstained fabric?  What did you use as the substance in that area?
A  Blood.
Q  Human blood?
A  Yes.
Q  You then repeated the same process of moving the fabric, which was then bloodstained, back and forth in attempting to puncture it with the ice pick?
A  Yes.
Q  Was there any significant difference in the shape and the size of the holes when the fabric was bloodstained as opposed to when it was dry?
A  No.
Q  Were you assisted in conducting any of these experiments or did you do them all by your-self?
A  I was assisted.
Q  Could you tell us how you were assisted and who assisted you, please?
A  Well, I needed someone to whip the end of the sled.  I had people assisting me, tying down the fabric onto the target, and things of that nature.  It seems to be there was anoth-er part of your question, but I have forgotten it.
Q  No, I wanted to know whether you had the assistance of other persons or you were trying to do this all--one and the same time--by yourself.
A  No, I had assistance.
Q  All right, now, were you able to ascertain--were you able to determine in your mind to your own satisfaction, based upon your knowledge, training, and experience apparently why there was no tearing or significant tearing of the fabric even when it was in motion, when punctured by an ice pick?
A  I think I know why; yes.
Q  Can you tell us what conclusion you arrived at and how you arrived at that conclusion?
A  Yes, I have a chart that would aid me in the explanation.
Q  Let me show you a diagram that has been marked as Defendant 66 for identification.

(Defendant Exhibit No. 66 was marked for identification.)

Q  And if I may, I will place it on an easel here in front of the jury; and if you would, Dr. Thornton, explain to us how this diagram can illustrate or does illustrate the conclusions you arrived at about the tearing or non-tearing of moving fabric?
A  Well, an ice pick, whether it is used for ice picking or anything else picking, is really a one-dimensional cutting tool.  That is--the point is the cutting edge.
    The shaft is not a very efficient cutting edge.  When I set the target in motion and stab into it with the ice pick and then observe circular puncture holes, I think the explanation for it is along the lines of the following: that this diagram will aid the interpretation of that.
Q  If it would help, you may come down from the witness stand to use that, Dr. Thornton.
A  On the upper left-hand corner we have just a representation of a layer of fabric over a layer of tissue; but it is not intended to be an anatomical diagram of it, but conveys what I think are the operational factors that are involved.
    In stabbing into this target with an ice pick, there is a circular hole made in the fabric and a circular hole made in the tissue.  Then, as the target is moved relative to the ice pick, there is a great deal of resistance to tearing the ice pick shaft through the tissue.
    I think at that point the fabric is of subordinate concern to what's going on here than is the tissue.  As the target is placed in motion to the ice pick, the easiest direction of travel is back out the original entry hole, so it slides out.
    Now, that can happen if the tissue doesn't back to the form, which I think is entirely plau-sible.  At the termination, when the ice pick is removed out the original entry hole, through that, with the circular impression in the tissue and a circular hole within the fabric.
Q  Yes, you may take that back if you like.  Now, Dr. Thornton, based upon your knowledge, training, education, and experience, do you believe it is possible to form a scientifically valid opinion about whether these puncture holes could have been placed in this garment while statiionary or not stationary without conducting a scientifically responsible test?

MR. MURTAGH:  OBJECTION.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  Dr. Thornton, based upon your knowledge, training, information, and experience, do you believe that the demonstration that you conducted in regard to placing holes in the fabric was done in accord with accepted scientific principles, particularly in the area of forensic science?

MR. MURTAGH:  OBJECTION.

THE COURT:  OVERRULED.

BY MR. SEGAL:
Q  You may answer.
A  I believe it was.
Q  Dr. Thorton, in regard to the demonstration just shown us in regard to the forces and how you arrive at the conclusion of why the holes are circular even though the fabric is moving, do you believe that that demonstration is made consistent with accepted principles for a sci-entific demonstration as you know it in the area of forensic sciences?
A  I believe so.
Q  Now, let me ask you, if I may, about a second matter.  Did you have occasion to examine the bedsheet that was found in the master bedroom, the top bedsheet?
A  Yes, I did.
Q  Let me ask you whether you recall hearing the testimony of Mr. Stombaugh in regard to the fabric impressions he said that he observed on that particular bedsheet?
A  I have read his testimony, yes.
Q  I am talking about, of course, in this regard, the sheet that has been identified previously as Government Exhibit 103.  Let me hand it up to you because we have some reference to that, and I want to ask you, if I may, a series of questions.

(Witness complies.)

A  Yes, I recognize this item.
Q  Now, I would like to direct your attention to the area on that item.  If you'd like, you may display it on the table.  But I'd like to direct your attention to the area on the item which was identified by Mr. Stombaugh with the letter "F."
A  I am not sure that I understand.  You want me to illustrate the area on the sheet?
A  Can we put that up on the table, please?

(Pause.)

MR. SEGAL:  Your Honor, we are ready to proceed if we may.

THE COURT:  Proceed.

BY MR. SEGAL:
Q  Dr. Thornton, you have the display there with the sheet--the top bedsheet.  In Area "A"--
A  (Interposing)  I am sorry.  "A"?
Q  I beg your pardon.  In Area "F."  Mr. Stombaugh stated that he found an impression which he concluded conformed to the left sleeve of Colette MacDonald's pajama top [sic].  Do you agree with that conclusion by Mr. Stombaugh?
A  Yes, I do.
Q  Is there anything unique about that impression?
A  No.
Q  Based upon the available evidence you have, you have no reason to disagree that that could have been created by the pajama top [sic] of Colette MacDonald?
A  I agree.
Q  Now, I ask you to look at the area marked "E" on the pajama top [sic], would you please identify that?  That is an area which has been referred to by Mr. Stombaugh as a shoulder impression.  Let me see if I can find you the section of his testimony.

MR. MURTAGH:  Your Honor, I don't believe that is what Mr. Stombaugh said.

MR. SEGAL:  I am going to read exactly what his words were, Your Honor.

BY MR. SEGAL:
Q  Refer to page 4140 of the testimony.  He was asked the question about Area "E."
    "Area 'E' is the appearance of a bare left shoulder and the bottom of it has the appear-ance of a torn left cuff of a pajama top, the trailing out portion here."
    Dealing first of all with the statement that Area "E" has the appearance of a bare left shoulder, do you agree or disagree with that conclusion?
A  I disagree.
Q  What is the basis of your own opinion in this regard?
A  I am unable to replicate an impression that has the appearance of "E" on that item by us-ing a shoulder, neck, or clavicle region of a human being.  I can replicate it to some extent by folding the fabric over an area of bloody cloth.
Q  Let me go back over what you just told us.  First of all, is it your opinion that it is not in any reasonable fashion a bare--it is not an impression made by a bare left shoulder as far as you can ascertain?
A  That is correct.  I don't think there is any credible possibility that it could be a bare left shoulder.

MR. MURTAGH:  OBJECTION to that, Your Honor.

THE COURT:  I will strike the word "credible."  Don't consider that.

BY MR. SEGAL:
Q  Do you find evidence that it is inconsistent with that Area "E" having been made by a bare left shoulder?
A  Yes.
Q  Would you tell us what is the evidence first of all that you find inconsistent with the bare left shoulder, and if necessary you may certainly illustrate by pointing to the pajama top [sic]
--I beg your pardon--the bedsheet top?
A  Actually, I would have to approach it from a slightly different standpoint.
Q  Please do, then.
A  I made a series of test impressions with blood on fabric to attempt to determine how con-sistent the impression "E" is with test impressions.  I find that it is inconsistent.  I do have a slide to illustrate that.  The second aspect of this particular impression "E" is that the arcing lines of blood can be mimicked by simply folding the fabric over an area of cloth that has been previously soaked in blood.  When the blood is still fluid, if the cloth is folded over, an impresssion which is similar in many regards can be obtained.
Q  When you say that that mark as "E" can be mimicked, what exactly do you mean by that?
A  Well, I can show you a photograph of a test impression that looks a great deal more like "E" than a test impression of a shoulder and clavicle and neck region.
Q  All right, and will you describe for us how you conducted that experiment when you show the slide?
A  Yes.
Q  All right, how many slides do you have, Dr. Thornton?
A  Seven.

MR. SEGAL:  With Your Honor's permission, we will have the second part of the double fea-ture.

THE WITNESS:  May I clarify my answer?

MR. SEGAL:  Yes, sir.

THE WITNESS:  I have a total of seven slides that illustrate the various aspects of the bloody test impressions and not all of which are directed at impression "E."  Some are direct-ed at impressions "C" and "D."

BY MR. SEGAL:
Q  All right, let us receive all of those photographs now and describe how they were arrived at and then we will talk about "C" and "D" thereafter.  Will you describe what we have here on the first slide that we are showing, Dr. Thornton?
A  These slides are a series that are representative of a more extensive series of experimen-tation that illustrate the most salient features and what are, in my mind, the most important considerations in this area of inquiry.
    The first slide is a photograph of two hand impressions made in blood in which the blood was rather heavily deposited on the hand.  There is a considerable amount of blood on my hand as I made these impressions--these prints.
    The second slide illustrates from right to left a serial diminuation in the amount of blood.
In this series, my hand was soaked in blood.  The first impression on the far right is the heav-iest impression--a heavy deposit of blood.  The middle impression is with my hand picked up from the heavy impression and placed on the page to the left and creating the second im-pression.
    The third impression is still a lighter amount of blood.  The significance of this is that in a heavier impression of blood such as we see on the right and which we also saw in the previ-ous slide, if you look at the center of the impressions or center of the print where the fingers are all represented--
Q  (Interposing)  May I point out for the jury--if you will indicate where it should be--you are referring to these areas?
A  Yes.  A very heavy deposit of blood--we found a rather consistent deposition of blood.  There is not a gradient between the periphery and the outside of the impression in the center portion.  As the amount of blood is diminished--what we consistently see is a lighter impres-sion right in the center of the finger pats.
Q  You are referring to the middle hand of these three hands?
A  That is right.  In the middle, there is a small amount of blood--a lesser amount of blood in the center than along the sides.  I think that is probably the result of the pressure being greatest at the center of the finger pats and expressing the blood out to either side.  Again, we see a continuation of this in the lightest print which is on the far left.  In a very light de-posit, we see distinct impressions of the friction ridges which are on the surface of the palm and fingers.
Q  When you say "friction ridges," could you describe briefly what you are referring to?
A  Friction ridges or capillary ridges or thermal ridges are the anatomical features that are re-sponsible for a person having unique fingerprints.
Q  This is the fourth slide that we have here.  What does that contain?
A  One possibility that I considered was that certain of the impressions on the evidence sheet--where there is some testimony that they are bloody hand impressions--I gave some consideration to the possibility that these were, in fact, drips of blood or spots of blood in which a hand had been put down on top of the blood stain after the blood stain had been de-posited.  In other words, the hand itself was not bloody, but the hand was put down on a blood stain.  This is an area where a finger has been placed--actually, several fingers and a portion of the palm has been placed on the glass stain where the blood was deposited on this side of the palm on the fabric.  The next slide is where the blood was deposited on the far side of the fabric.
Q  Could we just go back to that last slide for one second, Dr. Thornton?
A  I can't.  The reverse does not work.
Q  Again, this slide that we now have on the screen--is that the one where the blood is on one side and an impression from a hand was placed on this fabric from the other side?
A  That's right.
Q  Now, may I ask, how much of a hand was applied to a piece of fabric.  I don't have a scale to tell me what is the size of this fabric, for instance, that we are dealing with?
A  This cloth here is about 9 by 9 inches, and approximately--well, all of three fingers, per-haps a portion of the little finger was pressed down on this bloody spot; so the bloody spot there is about five inches in diameter.
Q  All right.  Would you go on now with the next slide and tell us what it represents?
A  This is representative of the type of impression that you encounter when you soak--"soak" probably is not the best word--when you paint blood on to the shoulder area and neck area and clavicle area of a human being, and then hold the piece of fabric up to that area, as if you were cuddling a pillow.
Q  Well, let me ask you, does this represent the result that was obtained after blood was put on a human shoulder and the fabric pressed up against the shoulder and the fabric pressed up against it?
Q  Yes.
Q  And may I ask first of all whose shoulder is used here?
A  This is Linda Waxhall's (phonetic) shoulder.
Q  Is that the laboratory assistant to yourself?
A  Yes.
Q  And what was used as the material to replicate blood?
A  That is blood.
Q  That is human blood there?
A  Yes.  I made another series with poster paint, but the blood, I think, is a more realistic material to use.
Q  All right.
A  The last slide is an area where blood has been deposited in the center and then the fabric has been folded over that blood spot several times.  Up at the top of the slide and over to the right we see some areas that possess the general appearance of what has been desig-nated as Impression E on the top bedsheet.
Q  Am I pointing to the area that you are referring to?
A  Yes.
Q  Now, how would those two areas that I just pointed to--how did they come to be?  What was the process--was there a shoulder or clavicle or part of the human body that produced those lines or smears?
A  No, no.  This was made by folding the top of that piece of cloth down over that bloody impression--the light bloody impression over--through the center of the fabric, and then re-moving the cloth--unfolding it.
Q  I want to ask you some more questions on that last slide.  Could we have the lights back on now, please?
    Dr. Thornton, based upon your own knowledge, information, experience, and background, I would like to ask you as to whether you have an opinion as to whether an impression such as the one Mr. Stombaugh has said he thought was a bare left shoulder and that you said you do not agree--whether an impression like that could have come into existence on this partic-ular blue sheet if it were lifted from the floor while there was still moist blood on it, gathered together, together with a bedspread placed into a plastic evidence bag and sealed up?

MR. MURTAGH:  OBJECTION, Your Honor.  The question assumes a fact not in evidence.

MR. SEGAL:  That demonstration was in evidence, because I performed it, Your Honor.

MR. MURTAGH:  Not with moist blood, Your Honor.

THE COURT:  Yes, I will SUSTAIN that objection.

MR. SEGAL:  Your Honor, I ask you to refer to the record.  I have Mr. Shaw's testimony in that regard on each of those points.

THE COURT:  Well, find it and bring it here.

MR. SEGAL:  Will the Government make available the transcript to go through it.  May we see Your Honor at sidebar?


B E N C H  C O N F E R E N C E

THE COURT:  What is the question again?

MR. SEGAL:  The question is, does he have an opinion as to whether the smear could have been created if the bedsheet was picked up together with the bedspread and placed in an evidence bag, and sealed.
    Your Honor may recall that is the demonstration that I, number one, had Mr. Ivory do with me and I played the role of Mr. Shaw and gathered up--

THE COURT:  (Interposing)  But now you are talking about having something that took place later on.  What is the evidence that the blood was still moist at that time?

MR. SEGAL:  I asked Mr. Shaw, if Your Honor pleases, to go through each and every one of the major items in the house as to what was the condition of the blood.  We have his testi-mony in this regard from a prior proceeding.
    He described tacky, he described wet, he used a series of words.  I did that with a view toward--you know, our theory of this case has been that that has been an explanation for a number of the impressions, that the blood was, you know, at least a certain amount dried.
    Mr. Shaw was explicit that there was not a single item of blood of evidence that he gath-ered up that was anything less than tacky.  Now he used moist, wet, or shiny.  I think that is not in any way outside the facts; that it is pretty clearly established.

MR. BLACKBURN:  Mr. Stombaugh was asked, I think, direct or redirect one, about that shoul-der area, as to how long blood would stay moist.  And specifically with regard to the shoulder area, he said an area like that would be dry in a matter of minutes.
    There is testimony in the record that the sheet was not picked up until after the bodies were moved, which was at 8:00 o'clock.

MR. MURTAGH:  Further, Your Honor, if you will let me interrupt just a second, there was a photograph taken by Page of the crime scene, Judge, which shows the clock, which is run-ning.  The one photo shows it is 5:00 o'clock, and the sheet is in that photo at a quarter of 1:00.
    That is a long time after the bleeding stopped.  And my recollection of that testimony dif-fers from Mr. Segal.  I think what Mr. Shaw was testifying to, with respect to tackiness, is the blood in Kimberly's room, which was the room he processed and arrived at, I think, 4:00 o'clock in the morning.

MR. SEGAL:  We are talking about two different matters of blood, Your Honor.  Mr. Blackburn and Mr. Murtagh are talking about a different matter of blood.  We are not saying that that smear--the so-called Stombaugh shoulder smear--was wet at the time that it was picked up.
    What we are saying is, that there was other--what I asked him was if in his opinion, there was moist blood on the sheet, and if it was gathered in the fashion I indicated: could that account for how the smear was made, because that's what the last slide was.
    All I want is his opinion if that is so.  I base it upon the testimony of Mr. Shaw that all of this blood--not that smear--but there was blood on that sheet, as well as the other bed-spreads and other matters that it was moist, wet, tacky--they were all his words.

MR. BLACKBURN:  There is no testimony that I can recall in the record that at the time the sheet was collected it was moist or not.

MR. SEGAL:  I will put it in a hypothetical.

THE COURT:  I will just put this one on hold and let you see if you can find exactly what his testimony was because I'm just sorry--I can remember everything, maybe, except that that has happened these last five weeks, but somehow or another, that one escapes me, surpris-ingly.

MR. MURTAGH:  We will provide the transcript to counsel at the break.

MR. SEGAL:  We are not going to be able to do that until after break.  I expect we'll be over-night with this witness, Your Honor.  I would make a suggestion.

THE COURT:  It looks like we are going to be overnight up here.  That is the reason I was trying to get on with it.

MR. SEGAL:  I was going to suggest, Your Honor, we propose this as a hypothetical subject to tying it up later on.  That would get us past this point.

MR. MURTAGH:  Your Honor, I think the hypothetical is contrived.

THE COURT:  I will let you do it the way I said first.

(Bench conference terminated.)


BY MR. SEGAL:
Q  Dr. Thornton, I would like to ask you about the areas that you had sort of gotten into, "C" and "D," which were described by Mr. Stombaugh at page 4141 of his testimony.  I am going to ask your opinion about those.
    He stated at that time that, "Area 'C' conforms to a bloody handprint."  He then said, "Area 'C' on the sheet...conforms to a bloody left hand--the two portions of it, here, here and here."  He said, "As to Area 'D,' it conforms to a bloody right hand."  Let me ask you, first of all, do you agree with his opinion and his conclusion?
A  No, I think that is exceedingly unlikely.
Q  Exceedingly unlikely?  On what do you base your opinion that that conclusion is exceed-ingly unlikely?
A  May I illustrate with some color enlargements of these areas?
Q  Yes; are you now referring to the exhibits that were previously introduced in evidence here by the Government?
A  Yes.
Q  Would you tell us which ones you are going to refer to and perhaps you can set them up so the jury can view those.
A  820(a) and 821(a).
Q  You may want to use a pointer, Dr. Thornton, in that regard?
A  Well, on these impressions, "C" and "D," what we observe--I will show first on "C"--is in the area that is suspected of being a finger impression.  We see a more dense concentration of blood, surrounded by a lighter concentration.  We see it most vividly here and here on "C" and we see it most vividly here on "D."
Q  How does that compare with your own experiment which we had on the screen a few min-utes ago?
A  It doesn't match.
Q  I gather you had the opposite result.  You had lighter in the center, where the most con-tact with the finger was, and darker where there was least contact?
A  Yes, that is correct.  I think what we have here is an area that has been heavily blood-stained with a heavy drip of blood, where a fluid portion of the blood, the electrolytes--in es-sence, the water portion of the blood--migrates through the fabric.
    The fabric is serving as a blotter so we see a migration of the blood from the margins of the original blood spot, to the drop of blood, to the outside.  This is in a similar manner that if you were to drop ink onto a blotter, it would migrate out from the initial margins of the spot.
Q  Now, based upon your own investigation into the matter, your experiment, your know-ledge, information and background, do you have an opinion as to how or what form the im-pressions there that are known as "C" and "D" which Mr. Stombaugh thought were the hand impressions?
A  I thought I just answered that.
Q  Do you have an opinion as to how they may have been caused, "C" and "D"?
A  Yes.
Q  Would you state that, please?
A  I think that they are most likely a drop of blood with a considerable amount of blood--"considerable" meaning at least a drop, perhaps several drops--in one area, with the migra-tion of the fluid portion of the blood away from that initial spot.
Q  Now I would like you to take a look again at the blue bedsheet, and ask you to look at an area that has been marked "A."  Now with regard to the area marked "A," I would also call to your attention that this is an area that was described by Mr. Stombaugh in his testiomony as being consistent--just bear with me a second.

(Pause.)

BY MR. SEGAL:
Q  I don't want to misquote Mr. Stombaugh as to what his impression of that was.  I must apologize to you--I cannot locate it offhand.  Do you recall, of your own reading in your own memoranda, what the conclusion of Mr. Stombaugh was about Area "A," and what he be-lieved it looked like or resembled?
A  Yes.
Q  What was that, Dr. Thornton?  What was your recollection?
A  My recollection is that Mr. Stombaugh found that impression "A" was consistent with an impression of Dr. MacDonald's pajama top.
Q  Do you agree or disagree with his conclusions?
A  I agree.
Q  And he also, I believe, made reference to Area "B" at the same time as being consistent with Dr. MacDonald's pajama top; do you agree or disagree with Mr. Stombaugh's conclusion in that regard?
A  I agree.
Q  All right, would you return to the stand, please.  Now, I would like to ask you to look at Government Exhibit G-120, which is the bottom sheet--the also blue sheet--but it was the bottom sheet from the master bedroom.
    I would like to ask you whether you had occasion to examine this particular sheet for various tests?
A  Yes, I did.
Q  And what was the nature of the examination you made of G-120?
A  Really, two things.  One was to verify a large stain appearing in the general vicinity of the center of the sheet as a urine stain.  The second aspect of my examination was to look at the blood spatters on the sheet.
Q  Now let's first, if I may address our attention first to the stain in the center--the large yellowish stain.  Is that the one you were examining for possible urine, or presence of urine?
A  Yes, actually I received a clipping from that area.  I did not take the clipping myself.
Q  Would that be the clipping here that has, as far as you know, July 22, 1979, with the ini-tials, I would think, of Agent Don Murray of the FBI?
A  That's right.
Q  What examinations did you conduct on that piece of fabric that was supplied to you?
A  I conducted two tests to determine if the stain in fact was a urine stain.
Q  Did you arrive at a conclusion in that regard?
A  Yes.
Q  What was your conclusion and what was your opinion about that?
A  I believe the stain is, in fact, a urine stain.
Q  Now you also described checking the spatters of blood upon this particular bedsheet.  Could you show us what the areas were that you examined, and then tell us what, if any, conclusions you arrived at?  I will be glad to hold it up, if necessary.

(Pause.)

MR. SEGAL:  Indulge me for one second, Your Honor.

THE COURT:  I will indulge you 16 minutes.  We will take our recess now and we will come back today at 4:00 o'clock.  Don't talk about the case.

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


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

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

(Whereupon, DR. JOHN I. THORNTON, the witness on the stand at the time of recess, re-sumed the stand and testified further as follows:)

D I R E C T  E X A M IN A T I O N  (resumed)

BY MR. SEGAL:
Q  Dr. Thornton, we were beginning to talk about the bottom bedsheet in the master bed-room, and right before the break I was interested in locating two photographs.  Do you now have two photos there showing the master bedroom in the MacDonald house and, if you do, would you tell us what the numbers are, please?
A  These are Government Exhibits 40 and 45.
Q  And would you just please hold them so that members of the jury can see what those photographs look like?  They represent the crime scene showing the body of Mrs. MacDonald and it shows a blue sheet draped over the master bed.  Could you perhaps, just from the witness stand, show us where in the photographs the blood spatters that you examined are shown in the photo, and then we will go to the sheet and talk about the spatters and their meaning on the actual garment itself.
A  Actually, the blood spatters that I see on the sheet that I consider to be the most signi-ficant do not appear on the crime scene photographs, Government 40 and 45.  They are too small.
Q  The photographs are too small?  You mean the detail in the photographs is not there?
A  That's right.  The blood spots are too small to be resolved by the--
Q  (Interposing)  Can you just point with your finger, however, to the area on the sheet on which the blood spatters appear as far as you are able to tell?
A  Yes; it is this area right in here on the side of the bed where the sheet is extended down over the side of the bed, and it is in this general region right here.  That would correspond to this area that we see at the top right in here.
Q  Now, approximately how many blood spatters are in this area that you are now pointing to?
A  Many hundreds.
Q  What, if any, opinion have you been able to form, based upon your examination of those blood spatters?
A  Well, the aerodynamic characteristics of blood in flight, traveling through the air--this sub-ject has been worked out in some considerable detail.  Very fine droplets of blood such as this on the order of 25,000th of an inch down to perhaps 5,000th of an inch in diameter are characteristic of blunt impact--blunt impact of some object such as a club and a human be-ing in an unexposed portion--I'm sorry--in an exposed portion--an area that is not covered with clothing.
    If someone beats on another human being with a blunt object, there will be this very fine dispersion of blood--many hundreds, many thousands of droplets of blood.
Q  Now, what would happen when a blow is delivered to another human being using a club such as this stick that we have had identified here in this case?  Let me show it to you again.  I know you have seen it.  It is the item that has been marked G-307.
    Let us assume that Mrs. MacDonald was struck by a person using such a club.  Would the pattern of blood droplets that you now have been pointing to on this sheet be consistent with the pattern that would have come from her body as a result of blows delivered by that instrument?
A  Oh, yes.
Q  Do you have any opinion as to what, if any, effect such a blow would have on the person of the individual who struck the blow?
A  Yes.
Q  And what is that opinion?
A  I'd expect to see a dispersion of blood, a very fine fog of blood, such as we see on the sheet, on the clothing of the person responsible for doing the striking.
Q  And if the person who struck that blow were wearing a garment such as the blue pajama top that we have in this case, do you have an opinion as to whether or not that dispersion of blood droplets would land on such a garment?
A  Yes.
Q  And what is your opinion?
A  I believe it would.  There is nothing about the distribution of the very fine particles of blood--very fine droplets of blood--that only seek out bedsheets.  It would also be--there would be a registration of those droplets on the pajama top also.
Q  In other words, there would be a similar pattern on the pajama top, if that were the gar-ment worn by the individual, as there would be on the bedsheet you have shown us?
A  Yes.
Q  Now, what part of the pajama top--if it were being worn by the individual who struck this blow in the hypothetical situation we are talking about--what part of the pajama top, in your opinion, would receive the bulk of those droplets of blood that you described?
A  I think a precise answer to that would involve two aspects: one is that whatever portion is closest to the area being attacked, closest to the blunt impact, would receive the most dense concentration.  Secondly, I would expect the sleeve areas to be more heavily repre-sented and, assuming that the person doing the striking was facing the victim, I would ex-pect to see some of the blood also on the front of the garment.
Q  What about the arm?  Would that be most likely to have the largest dispersal of blood droplets--the arm of the person who was wearing the pajama top such as the item here?
A  Yes.
Q  Now, have you in fact examined this particular blue pajama top yourself?
A  Yes.
Q  Did you find any indication--such a pattern of dispersal of blood droplets on the arm--first of all on the arm of the garment?
A  No, I found no such indication.  I found a good deal of blood on the garment, but not the very fine aerosol, the very fine droplets of blood that we see on the sheet, and that I would expect from a beating of this type.
Q  Are all the areas of this garment so blotted with large blood stains as to prevent the ap-pearance of this aerosol spray effect on there?
A  Oh, no.
Q  Now, I would like to move, if I can, Dr. Thornton, to another area with you.  There is some testimony in this case that the same particular blue pajama top--that when it is torn, may or may not release fibers onto the ground or the floor as a result of being torn in one or more places.
    Have you read some of that testimony yourself, by the way, in connection with your pre-paration to be here today?
A  Yes.
Q  And whose testimony are you referring to?
A  Mr. Stombaugh's.
Q  Now, I believe there was testimony from Mr. Stombaugh on this matter that, if this par-ticular pajama top were grabbed in the frontal area and ripped down the front in an area where there is no bottoms and no seam, that it would release a substantial number of fibers.
Do you agree with that opinion?
A  I may have lost sight of the question.  Could you repeat it?
Q  That's my fault.  Let me rephrase it.  If this pajama top were torn when it was in its less damaged condition when it was not rendered asunder--if it was torn, say, from a hand placed in the V-center and pulled out, do you have an opinion as to whether such a procedure would result in a substantial number of fibers falling from the garment or being released from the garment?
A  I have an opinion; yes.
Q  And what is your opinion in that regard?
A  That it would not.
Q  It would not.  And what do you base that opinion on, Dr. Thornton?
A  That particular portion of the garment--that tearing action that you have described from the V-portion down to the bottom of the garment--would represent a tear of the fabric alone; that is, not along a seam, but simply a separation of the yarns.  No sewing threads would be involved.
Q  Yes, I am only asking you now about the tear along that area.  I will ask you subsequently about tears in other areas, but initially I would like your opinion and the basis for your opin-ion, please, as to whether or not there would be a substantial number of fibers released by a tear down the front of the garment which had no seam in it?
A  My opinion is that the fiber loos as a result of that tear would be minimal.  The basis of my opinion is test tears that I have made in polyester-cotton cloth of that type.
Q  All right, now, will you tell us something about the kinds of tests you performed in order to base this opinion or arrive at this conclusion that you have just given us?
A  Well, I took white paper--
Q  (Interposing)  Again, I am having difficulty hearing you.  Keep your voice up, please.
A  I took white paper and tore polyester-cotton cloth, approximately in 18-inch portions--tore it over the white paper and observed what fell to the white paper.
    I recovered the yarns and made a rough quantitative assessment of how many fibers--how many yarns would be lost in that process.
Q  Now,what kind of fabric were you using at that time.  What was your mix of fiber?
A  65 percent polyester, 35 percent cotton.
Q  And why did you make an 18-inch tear in this particular fabric?
A  That was about all I could reasonably tear in one action.
Q  And let's just measure, if we can, the front of this garment.  From the point of the "V" to the bottom of the garment, can you tell us about what dimension that is, please?
A  19 inches.
Q  19 inches, all right.  Now, may I ask how many times you performed this particular experi-ment using a piece of fabric, first of all?
A  Six tears of regular fabric, meaning--
Q  (Interposing)  Bolt cloth of some sort?
A  Bolt cloth with no seam involvement.
Q  And you did this over a work bench on which you had spread out the papers in which to collect whatever fibers fell?
A  Yes.
Q  What was the average number of fibers that fell when the bolt cloth was torn?
A  There wouldn't have been enough to derive any statistically valid number.  The yarns that were lost tended to be very few in number--two or three, one or two.
    I don't recall--if I may refer to my notes.
Q  Please do.
A  Two threads were all that were observed to be lost to gravity in this experiment, and also they tended to be fairly long in length--two to eight inches in length.
Q  You are saying--if I may just make sure I am clear, at least--that on the six experiments using bolt cloth which you tore, the maximum number of threads that fell from gravity were two in any of those six experiments, three, perhaps, at the most?
A  Two at the most.
Q  Two at the most.  All right, now, did you continue this experiment in any different fashion from the way you have described it so far?
A  Yes.  I sewed a seam in the polyester-cotton cloth, and then ripped that seam, again, over the white paper, and then collected the sewing threads that were lost.
Q  And how many times did you tear or rip a sewed seam using this fabric?
A  Well, 10 times.  I should mention that this is all on cloth that I had purchased.  I did an-other series of experiments with pajamas.
Q  All right, we will come to that; but let's see if we can find out what happened in the sec-ond stage where you were tearing the seam that had been sewed in--just in bolt cloth?
A  10 experiments.
Q  And what were your findings in terms of the number of fibers that were dislodged and be-cause of gravity fell down onto your work bench?
A  I found that the results were quite variable, that in this series of experiments very short threads were created.
    There were many more than in the ripping of the unseamed cloth.  The fibers were about a centimeter in length.  The principal variable with respect to the number that would arise from this tearing appears to be the force applied to the fabric in dislodging the very short fibers from the holes in which they are loosely affixed after the tearing has taken place.
Q  Let me see if I understand that.  You say that you had variable results depending upon how much force was applied to the tear?
A  That's right.  I think there are two separate--or I think the phenomenon of fiber loss from the area can be divided into two separate phenomena.  One is the force that is applied to the seam to break the sewing threads, and the second force is the force necessary to re-move those broken threads from the holes in which they are very loosely affixed.
    Now, in a very violent tearing motion, those two factors may exist concomitantly.  They both must be--they both may be in force at the same time.  In a very gentle tearing, suffi-cient to tear the seam, the fibers remain in the holes in which they originally existed and are not lost.
    They can be removed very easily.  It takes very little force to reach up and pull them out of their holes.
Q  As far as their falling from the result of gravity themselves from the tear, your finding was that that did not happen automatically--just because you tore the fabric didn't result in a profusion of fibers on your table automatically?
A  Certainly there is a considerable number of fibers that are lost in the tearing process, but this type of experimentation does not really lend itself to any reasonable quantitative assess-ment of what might take place in it.
Q  Well, subject to the limit that you put on it, do you--when the fabric was torn violently along the seam, what were the numbers you received--the fibers that fell as a result of grav-ity?
A  Scores.
Q  Scores.  All right, now, you say that you continued, changing the kind of fabric or material you were using.  Will you please tell us about that?
A  Well, I used six pairs of pajamas.  One was a new pullover type of the type in question here.  One was an old pullover type purchased from a thrift store; and there were four old button-down types where I could not rip the center portion but I could rip the side panel and the sleeve.
Q  Now, what was the fabric composition of all these pajamas that you used in the second phase of your experiment?
A  Polyester-cotton.
Q  Same mix that is in the pajama top that is in question here?
A  Yes, this is a very common type of fabric.  If you go into a fabric store you can almost in-variably find 65 percent polyester, 35 percent cotton in whatever color you want.
Q  Will you tell us, please, what you found as a result of the experiments now, working on pajama tops, in terms of the number of fibers that were dislodged first when you tore it in an unseamed area?
A  If you tear the pajama tops along the unseamed area, you do not expect to create many fibers.  If any are lost they tend to be long, several inches long.  But they are very few in number.
Q  Did you find any difference in terms of the number of fibers that fell from the garment when it was torn in an unseamed area, as between the new pajama top as contrasted to the one that you bought in the thrift store--the one that is the old one?
A  Well, not really, but two doesn't--or one new pajama top does not represent a statistically valid sample, so I didn't really address that issue.
Q  Do you rememer how many fibers--just out of my curiosity--how many fibers you got dis-lodged by gravity when you tore the old pajama top on the unseamed area?
A  No, I do not.
Q  What about the experiments you conducted in terms of tearing along the seams of these various pajama tops.  What was your finding in that respect?
A  I found a great many more short fibers of the sewing thread type as opposed to a yarn comprising the bulk cloth.
Q  Did you have any other findings or conclusions based upon the experiments you conducted with these various pajama tops, in regard to what effect the tearing would have on release of fibers by gravity or releasing threads by gravity?
A  I have a conclusion, yes.
Q  Would you tell us what that conclusion is, Dr. Thornton?
A  I think it makes a big difference whether we are talking about tearing the garment along a seam or tearing a garment along an area where there is no seam.  From the standpoint of the number of fibers that would result from the tearing action, it would be--in order to make any reasonable conclusion based on the numbers of fibers, we would have to know which seams we were talking about that are being torn at a particular time.  I think that it would be possi-ble that there would be a mix of tearing of a seamed area and an unseamed area which would further complicate any definitive analysis of this sort.
Q  I would like to turn, if I may now, to another area, and very briefly, for it is a matter that somewhat vexes me.  We have had testimony in regard to--

MR. MURTAGH:  (Interposing)  MOTION TO STRIKE that, Your Honor.

MR. SEGAL:  Oh, good God.

THE COURT:  Well, I will ask the jury not to consider this if the counsel finds himself for some reason vexed.  Go on with your questions.

BY MR. SEGAL:
Q  In my unvexatious state, I will now ask you the following, Dr. Thornton, just to satisfy the question in my mind about the testimony here about the use of benzidine to be applied to spots to determine whether blood exists at a given area.  Are you familiar with the use of benzidine in that regard?
A  Yes.
Q  There was testimony by Janice Glisson and other witnesses that benzidine is a specific test for blood.  Do you agree or--

MR. MURTAGH:  (Interposing)  OBJECTION, Your Honor.  I don't think that was the testimony at all.

MR. SEGAL:  I do believe it was the testimony.

THE COURT:  I am sorry.  I can't settle that one.  Find the book and see what she said.

MR. SEGAL:  I will re-phrase the question, and we will move along.  I will do the same thing in another manner, Your Honor, if I may.  We do not own Ms. Glisson's testimony.  I do have another matter, though.

THE COURT:  Do it.

MR. SEGAL:  Thank you.

BY MR. SEGAL:
Q  Based upon your knowledge, training, information, and experience, is benzidine a specific test for the presence of blood?
A  No.
Q  When you say that it is not a specific test for the presence of blood, would you explain what you mean?  What does that answer mean to us in general or lay terms?
A  Benzidine tests involve an oxidation reaction.  Any strong oxidizing agent will promote the reaction.  Any strong reducing agent will inhibit the reaction.  It is a very sensitive reaction.  Its principle--well, I think that its main attractive feature is in its sensitivity and not its spe-cificity.  There are other materials that will give a false positive reaction.  There are other materials that will inhibit the test where false negative reactions will occur.
Q  Would good forensic practice in terms of blood identification require the use of a confirma-tory test in addition to the use of the benzidine test before deciding whether a given or iden-tified stain was blood or not?
A  I think so.
Q  Can you tell us what some of the available practical confirmatory tests would be?
A  There is really only one that has any appreciable currency in crime laboratories.  That is the Takayama test.  There is another, the Teichmann, but it is a difficult, rather ambiguous test.
Q  Now, in regard to the use of benzidine, the test for identifying whether blood is present or not, does it make a difference as to the quantity of blood that is being tested when you use the benzidine test and their confirmatory test as to what kind of results you get?
A  Yes.
Q  Could you explain how it makes a difference and in what fashion?
A  Well, there is a lower threshold of reactivity where even with authentic blood, the benzi-dine reaction will not occur.  I don't mean to over-emphasize that.  The benzidine reaction is a sensitive reaction.  But certainly there is a point at which authentic blood will not give a reaction, or not give an observable reaction under the conditions in which the test is run.
Q  Would I be correct if I, in lay terms, say if you have too small a quantity of suspected stain, the benzidine test is not conclusive in terms of whether blood is present or not?
A  Yes.  I think that would probably be a less stilted way of saying what I tried to say.
Q  I am through with that area.  I neglected to ask you something about the experiments you conducted on the tearing of fibers, and I now ask you to indulge me.  I want to ask you one, in essence, bottom-line question.  In regard to your various experiments of tearing the fabric on an unseamed area and then the seamed area in turn, in terms of the amount of fibers that are dislodged and fall by gravity, all I want to know from you is the following, Dr. Thornton: based upon your knowledge, training and experience, do you believe that the experiments you conducted in that regard were made in a manner consistent with proper scientific meth-ods as recognized in the field of forensic science?
A  Well, I think so.  But let me say this: that in this area, as in many other areas, there is a continuum of confidence that I would place in my experimentation.  Some types of experi-mentations lead to rather definitive results and the results could be used in both a prospect-ive and a retrospective sense.
    Other types of experimentation involve a number of variables.  And assumptions have to be made about those variables.  And those assumptions themselves may be subject to some imprecision.
    This particular series of experimentation I think is in consonance with good scientific meth-od.  But I don't consider the subject to have been exhaustively studied.  I don't see anything here that I could publish or that anyone could use to apply to another case.
Q  Let me turn now, if I may, to the question of the pajama top reconstruction experiment to which Ms. Green testified.  Have you--you told us, of course, that you have read the testi-mony of Ms. Shirley Green; is that right?
A  I read a portion of it, and I heard a portion of it on the second day of her testimony.
Q  Let me just remove this exhibit.  This is not germane to what we are talking about.  In addition to reading her testimony, you also heard some of her testimony personally; am I cor-rect in that regard?
A  Yes.
Q  And you heard her describe what she did in terms of putting probes through the holes in the pajama top into 48 holes and fitting them into 21 holes in a replica of what was meant to be a torso or display of the torso of Mrs. MacDonald.  You heard that; did you not?
A  I don't recall the torso being--
Q  (Interposing)  You are quite right--a pattern resembling the pattern that she said existed in the torso of Mrs. MacDonald.
A  That's correct.
Q  Is it possible, based upon your knowledge, information, and training, for Ms. Green, using the information that she had, to have made the reconstruction of the pajama top as she did?  Is it possible for her to have done that and done it correctly--moving the 48 holes into 21?
A  No.

MR. SEGAL:  No further questions, subject only to the matter, Your Honor, in regard to the wetness of the fabric.  I would like to leave--we will probably not finish the cross-examina-tion this evening--I would like to continue on that brief subject on redirect tomorrow.

THE COURT:  All right, sir.  I will let you go into that tomorrow.

MR. SEGAL:  Otherwise, the witness is for cross-examination.

MR. MURTAGH:  Your Honor, the transcript has been made available to counsel.  I think we could resolve it tonight, may it please the Court.

MR. SEGAL:  It can only be done by looking at it.  It would take, I would say, probably ten minutes.  We have a half hour's time.  I would like to read it at 5:00 o'clock and get it back to Mr. Murtagh and be able to pick up on that one brief subject.  Otherwise, I am through.

THE COURT:  He may need it tonight.

MR. MURTAGH:  Your Honor, it is about two pages.  I provided it to counsel at the break.

MR. SEGAL:  That's what he has chosen.  I would like to read it and it will take me a little bit of time, and I will give it back to him.

THE COURT:  All right, I will let him read it at 5:00 o'clock, but you give him ten minutes.  He said he would be through in about that time.


C R O S S - E X A M I N A T I O N  4:32 p.m.

BY MR. MURTAGH:
Q  Now, Dr. Thornton, I believe that the first area you talked about on direct examination was the fabric tears in the pajama top; is that correct, sir?
A  Yes.
Q  I wonder if I might had you Government Exhibit 101.
A  All right.
Q  And also this torso form.  Sorry it took a while to get around there.  And I wonder if I can ask you to put that pajama top on the torso for me, please.  Let me give you some tape.

THE COURT:  That's the trouble now.  He's got some Scotch tape over here binding it all to-gether.

MR. MURTAGH:  I think it is inside-out.

BY MR. MURTAGH:
Q  Let me ask you, Dr. Thornton, with respect to that garment, did you conduct any experi-ments placing it on either a torso or any other form?
A  No.
Q  You did not.  Okay, you have observed, I believe, the distribution of holes in the pajama top.
A  Yes.
Q  Did you count each and every one of them?
A  Yes.
Q  And would you describe, please, the general location of the holes?
A  Well, good heavens.  Not offhand.  They are distributed rather widely.
Q  Well, did you find any on the left front panel or the front left sleeve?
A  I don't recall that I did; no.
Q  Would it be accurate to say that the holes, with the exception of a few in the front, are primarily in the area of the back panel--let me turn this around--and the right shoulder and sleeve?
A  Yes.
Q  Now, with respect to your experiment with the pajama top on the sled, I believe you testi-fied--correct me if I am wrong--that you used new pajama tops; is that correct?
A  I just used polyethylene--I keep saying polyethylene--polyester-cotton cloth.
Q  I see.  You did not use pajama tops?
A  No.
Q  Okay.  Do I take it that with respect to the pajama top, you conducted no experiments with an ice pick with the pajama top in motion; is that correct?
A  Well, my fabric on top of the sled is, in my mind, a reasonable facsimile of a pajama top in motion.
Q  I see.  But is it not all bunched up, and in fact, didn't you use the term "tied down" with respect to the sled?
A  It is not bunched up.  I thought it was fairly clear on the slide.  It conforms to the target, but it is not bunched.
Q  Well, I am sorry.  Which target does it conform to?
A  On top of the sled, there was a target of resilient material.
Q  Yeah.
A  On top of that was the cloth with the fabric.
Q  Well, would I be correct in saying that the cloth that you used instead of a pajama top on the sled would resemble the approximate folding of the pajama top as I hold it in my hands?  Or if not, would you please hold it in the same way?
A  No.  You misunderstand the design of the experiment.
Q  Yeah.
A  What is on top of the sled is a ham.
Q  I am sorry?
A  A ham.
Q  A ham?
A  Wrapped in a plastic trash bag.  On top of that is a very small piece of cloth, measuring perhaps a foot.
Q  Oh, I see.  And is that piece of cloth stretched tight over the resilient material?
A  Fairly.
Q  Does the resilient material support or buttress up the cloth?
A  Yes.
Q  Dr. Thornton, have you ever had occasion to read or have read to you the various state-ments which Dr. MacDonald made with respect to the pajama top?
A  Yes.
Q  I am sorry.  Could you speak up a little louder?
A  Yes.

THE COURT:  He said, "Yes."

BY MR. MURTAGH:
Q  Let me ask you if you have ever heard this portion of the statement before, and I am re-ferring to a portion from the Article 32 transcript, August 13, 1970, in which Mr. Segal asked Dr. MacDonald various questions about his pajama top.  And the sequence starts: "...I am not sure that the process involved is clear when you say, 'My hands were bound in the pajama top.'  Answer: I let go of the club and I was struggling with these two people and I realized that, you know, I couldn't really punch back.  My hands were like bound up in my own pajama top.  I couldn't get them out of the sleeve or something.  I was just--and I had the impres-sion that it had been ripped from around me or pulled over my head.  But I don't distinctly either.  Question: You don't recall doing that to yourself, though?  Answer: No.  Question: Pulling the pajama top over your head?  Answer: No.  Question: Then what was the next thing happening or what did you next become aware of?  Answer: Well, as I was struggling, I received another what seemed like a fairly impressive blow on the side of my arm and saying to myself, 'What do I do now?'  Really I was just struggling trying to get my hands free.  My hands themselves were still free, but the pajama top was around my wrist and between my wrist, and just around the part of my hands really.  And in the struggle, I had hold of one of these--I don't know which one--hands, and in the hand I saw a blade."
    Do you recall having that read to you, sir?
A  I recall reading it.
Q  My question is, could you describe, using the pajama top and your own hands, what that sequence indicates to you.  In other words, what position of the pajama top are we talking about?

MR. SEGAL:  I don't understand the question, Your Honor.  I think the question is confusing.
I would ask it to be phrased either in two sections or three sections.

THE COURT:  If that is an objection, I will OVERRULE it.  That is one that I understood.

MR. SEGAL:  I apologize, Your Honor.

MR. MURTAGH:  Thank you, Your Honor.

MR. SEGAL:  Maybe I should let Dr. Thornton decide.

THE WITNESS:  I understand the question.  No, I cannot.  My interpretation of Dr. MacDon-ald's statement there is that there is a great deal of uncertainty as to how the pajama top was torn or pulled over his head.  My understanding is that he is not sure whether it was pulled over his head or torn and he is not certain how the pajama top was entwined around his arms.

BY MR. MURTAGH:
Q  Well, I believe the statement says that the pajama top was, "around my wrists and be-tween my wrists."  Let me ask you, in formulating your experiment, if you considered whether the pajama top was bound on somebody's wrists like this, much as if a sweater had been pulled over your head and you were taking it off and you hadn't quite removed it?
A  No.  I understood your last question to say, in formulating my experiment?
Q  Yes, sir?
A  Please don't misconstrue the purpose of this experiment.  This experiment was really in response to the position by Mr. Stombaugh that because the holes in the pajama top were circular, that the garment could not have been in motion.  That was the purpose of the ex-perimental design.  You are talking about two different things--
Q  (Interposing)  Well, let me--
A  (Interposing)  Let me finish my answer.  If we are talking about the unsupported fabric, then that is a completely new ballgame, and I am unable to speculate as to how the pajama tops may have been between the hands of Dr. MacDonald.
    I think that there is no way that I can really do any experimentation that would have any retrospective validity.
Q  Let me ask you this with respect to your experiment.  But first, let me say, is it your un-derstanding that Mr. Stombaugh testified here that the pajama top could not have been in motion?
A  Yes, I have it in front of me.
Q  Will you agree or disagree if he said it was his conclusion that the absence of torn areas indicated that the garment was stationary at the time the holes were made in it?
A  Yes, it is that interpretation with which I quarrel.  The fact that the holes in the pajama tops are circular does not mean that the garment had to be stationary.  It may well have been in motion.
Q  Okay, well, do I understand your testimony that your experiment with the sled was not meant to reconstruct or verify the thesis that the pajama top, when worn by the Defendant, and as described by him involving the struggle in which, I believe, he used the idea of blunt-ing blows with his pajama top.
    Your experiment was not made to verify that statement but rather to contradict or test the validity of Stombaugh's conclusions?
A  My answer to that is a qualified "Yes."  It is qualified in this regard.  I think it would be in-appropriate of me, from a scientific standpoint, to speculate as to how the pajama top exist-ed between the arms of Dr. MacDonald.
    My understanding of his statement is that he doesn't really know what happened, and I certainly don't know what happened, and I can't really design an experiment to test all of the possible interpretations of stabbing an ice pick into moving cloth under that type of situation.
    What I can do, though, is to test the hypothesis that because the holes have a circular appearance, that the garment could not have been in motion when those holes were placed there.  And that is what I did and I arrived at a conclusion.
Q  Dr. Thornton, my question is: do you have any scientific reason not to take the Defen-dant's statement at face value that he was wearing his pajama top and that it was either ripped or pulled over his head, and after it was either ripped or pulled over his head, it was around his arms and between his wrists and he was using it to blunt the thrusts of the weap-ons by the alleged intruders?
A  I have no reason to question that.  I consider that to be a rather plausible explanation.
Q  The question is: did you conduct an experiment to test that hypothesis or only the Gov-ernment's conclusion?
A  I see no way to test the hypothesis when it is not clear what the configuration is or what actions are involved--whether tearing or pulling over the head and what sort of twisting is involved.
Q  I am not talking about the tearing or the pulling.  What I am talking about is however it gets over his head and comes down around his arms.  He said, and let me quote: "And I was trying to punch and I couldn't get my arms out of my jacket.  It is like when you see in a hockey fight when a guy pulls a shirt over the other hockey player, you know, I couldn't do anything," from the grand jury, August 15th, 1974.
    My question, Dr. Thornton, is: do you have any scientific basis for saying that if someone did have this pajama top around his wrists and between his wrists and was involved in what we must assume to be a life and death struggle and was blunting injuries by two assailants who had a knife and and ice pick, that the pajama top could have been moved in a violent fashion and still not sustain torn areas?
A  I am sorry, Brian.  I have lost track of your question.  Could you repeat it?
Q  My question is: if the pajama top is pulled over your head and you are using it as a shield and someone is trying to kill you with an ice pick, is it your opinion that the pajama top could be used in that fashion and still not sustain torn areas?
A  I don't know.
Q  Did you ever try an experiment?
A  No.

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


THE COURT:  Yes.

B E N C H  C O N F E R E N C E

MR. MURTAGH:  Your Honor, it seems to me that Dr. Thornton has testified to half of an ex-periment.  He has got the better but not the bitter.  I think we are entitled to test the valid-ity of the entire process.

THE COURT:  I think you have half the better of the argument.  I am going to let this thing stay in there for whatever it is worth.

MR. MURTAGH:  I am not trying to strike it.  I want to do an experiment of my own, Judge, with a pajama top and an ice pick which I will wear and Brother Blackburn will flail away at me.

THE COURT:  Now, if we can get one to do Blackburn, the case will be over.

MR. MURTAGH:  If it would really help the realism of it, I will even wear it and let the Defen-dant flail away at me.

MR. SEGAL:  You know the Defendant does not harbor that kind of malice.

MR. MURTAGH:  I represent to the Court--

THE COURT:  (Interposing)  You want to do an in-Court experiment?

MR. MURTAGH:  Yes, sir.

THE COURT:  What are you asking me for?  Why don't you do it?

MR. MURTAGH:  Okay, sir.

THE COURT:  Is there any OBJECTION to it?

(No response.)

(Bench conference terminated.)


BY MR. MURTAGH:
Q  Dr. Thornton, I am going to hand you what I would now mark as Government Exhibit 1081.

MR. SEGAL:  What is the number of that?

MR. MURTAGH:  1081.

(Government Exhibit No. 1081 was marked for identification.)

BY MR. MURTAGH:
Q  I would ask you whether that pajama top is a reasonable facsimile of the pajama tops that you used in any of your experiments?
A  Reasonable, yes.
Q  Dr. Thornton, if I could, I am going to stand in front of you, placing great trust in Mr. Blackburn.  I am going to ask him to flail away at me with an ice pick.

(Experiment is performed.)

MR. MURTAGH:  That was a certain amount of realism.  That wasn't part of the act, Judge.

THE COURT:  Okay, anybody got a Band-Aid?

MR. MURTAGH:  That's okay.

BY MR. MURTAGH:
Q  Dr. Thornton, I'll ask you to take a look at this pajama top and tell us what you see?
A  I see a number of tears, and they do appear to be, in fact, tears.
Q  Yes, sir.  Are they straight puncture-type holes?
A  One of them appears to be fairly--well, yes, several of them are, but not all of them.  I can count--you understand this is an approximation.
Q  Yes, sir.
A  This is not an atmosphere conducive to good work; but there are three areas here that are circular in their appearance.  There is one here that's slightly elongated, and the remain-der appear to be tears.
Q  Okay, thank you.

MR. MURTAGH:  Your Honor, may I publish this to the jury?

THE COURT:  Yes, if they haven't already seen it.

(Exhibit passed among the jury.)

MR. SEGAL:  Do you need a doctor, Mr. Murtagh?

MR. MURTAGH:  Thank you, no.

BY MR. MURTAGH:
Q  I take it, Dr. Thornton, that you have conducted no experiments such as the one we have just done here in court?
A  No.

THE COURT:  He's still here, isn't he?

MR. MURTAGH:  Judge, that is our point.

THE WITNESS:  No, I considered it and rejected it.  I think it would be a little bit silly from a number of standpoints--scientifically silly being something other than--

THE COURT:  (Interposing)  Than silly-silly.

THE WITNESS:  Yes, Your Honor.

BY MR. MURTAGH:
Q  Would it be accurate to say that that's--

MR. SEGAL:  (Interposing)  The witness did not finish his answer.  I OBJECT, Your Honor.

THE COURT:  Yes, let him finish his answer.

MR. MURTAGH:  I'm sorry.

THE WITNESS:  My interpretation of Dr. MacDonald's statement is that it incorporates so much vagueness, so much uncertainty, that I really would not know how to design what I would consider to be a scientifically valid experiment.
    I think this is interesting, but I don't think that it is scientifically reliable.

BY MR. MURTAGH:
Q  Well, would you say that this experiment has no controls?
A  It involves so many assumptions that I think it is defective from that standpoint.  It in-volves an assumption of the position of the pajama top, and it involves an assumption of the weapon.  Now, I am convinced that there is an ice pick involved in this crime, but I have no way of determining that there is an ice pick involved in that particular aspect of the case.  It may be, but it may not be.  I do not know--
Q  (Interposing)  Do you have any reason to believe--
A  (Interposing)  Let me finish.  It would be in appropriate for me to guess as to all of these variables.  The guesswork that may be involved may compound all of the imprecision in it--all of the errors.  I don't feel that way about the sled experiment where I can control my varia-bles.
Q  Dr. Thornton, based on your review of the testimony, do you have any reason to believe that the puncture holes in the pajama top got in the pajama top other than when it was on some portion of Dr. MacDonald's body?
A  I think that is plausible.  There is another aspect of my answer, too, that I did not give you before.  If you will want it--
Q  (Interposing)  Please.
A  That is, we don't know the manner in which those thrusts were made.  I think the likeli-hood of tearing would be much greater in the overhand method that Mr. Blackburn has used than in a jabbing-type of action.  It is questions such as this that makes me shy away from devising some sort of ricky-tick experiment, if I can use that terminology--

MR. MURTAGH:  (Interposing)  I will MOVE TO STRIKE that.

THE COURT:  I am sorry?

MR. MURTAGH:  I said I will MOVE TO STRIKE that.

THE COURT:  Let him continue--finish his answer.  Did you finish, sir?

THE WITNESS:  And try to derive some validity from any experimentation process.

BY MR. MURTAGH:
Q  Dr. Thornton, you have been in the crime scene; have you not?
A  Yes.
Q  Have you examined the couch in the living room?
A  Yes.
Q  Do you know the approxmiate height of the couch in the living room?
A  Not offhand; no.
Q  We have a diagram that is in evidence, but would it be accurate to say that it is a fairly low couch?
A  Yes.
Q  Would it be accurate to say that if someone were approximately 5' 8", 5' 9"--in that range
--and was trying to kill somebody who was in a semi-sitting position on that couch, they would be more likely to stab overhand with an ice pick as opposed to stoop down and stab underhand?
A  I don't know.

THE COURT:  Are you about at the end of that particular series?

MR. MURTAGH:  Yes, sir.

THE COURT:  Well, we are about at the end of this day, so we will let the jury retire.  Did you finish looking at the Murtagh experiment?  If you did, we will take a recess now until tomor-row morning at 9:30.  So far as I know, they haven't filed any new motions today, but we will reassemble tomorrow morning at 9:30.
    Members of the jury, please remember not to talk about the case among yourselves or with others and don't let anybody talk about it anywhere around you.  Keep open minds about it.  You have not heard quite all of it yet.  Have a good night, a safe trip home and back, and be back tomorrow morning at 9:30.  We will let the jury retire and then we will re-cess.

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

THE COURT:  Anything else?

MR. SEGAL:  Very briefly in regard to the matter this morning of the affidavit I filed about the unavailability of a witness.  At this time, I want to make of record another affidavit, if Your Honor pleases, in regard to another witness.  In this instance, I think there may be less of a problem.  I am going to file with the Court an affidavit of the unavailability of Mary Judith Thoesen, T-h-o-e-s-e-n, who testified at the Article 32 proceeding in 1970.  On Monday of this week, she delivered by Caesarian section a baby.  She is, I think, by all means, unavail-able.  The Government has her prior testimony.
    I file this now as predicate to our reading her testimony probably either tomorrow or the day after.

THE COURT:  You mean you don't think you will finish tomorrow?

MR. SEGAL:  Beg your pardon, Your Honor?

THE COURT:  You don't think you will finish tomorrow?

MR. SEGAL:  No.  In the order of proof that we are proceeding, her testimony fits together with a group of similar witnesses.  There is, I think, no reasonable likelihood that she would be available to travel from her home having just given birth on Monday to an infant.  I think, also, the Government is fully aware of the nature of her testimony.

THE COURT:  Where is she from?

MR. SEGAL:  What is her current address--I am sorry?  She is in Herndon, Virginia, Your Hon-or, in the hospital there.

MR. MURTAGH:  We have no OBJECTION, Your Honor.  It is a character witness.  We certainly have no desire to incommode anybody that has just had a Caesarian.

THE COURT:  I was just going to say under those circumstances, I think we ought to accom-modate her.  Anything else?

MR. SEGAL:  No, Your Honor.

THE COURT:  Recess us until 9:30 tomorrow morning, please.

(The proceeding was adjourned at 5:02 p.m., to reconvene at 9:30 a.m. on Wednesday, August 15, 1979.)


F U R T H E R  P R O C E E D I N G S  9:30 a.m.

THIS CAUSE came on for further trial before The Honorable Franklin T. Dupree, Jr., United States Chief District Judge, and a jury, on Wednesday, August 15, 1979, at Raleigh, North Carolina.

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

THE COURT:  Good morning, ladies and gentlemen.  I say, welcome again to the Honorable William H. Bobbitt, Chief Justice Emeritus.  I am not sure that the jury met you yesterday, so I wanted to reintroduce you, sir.  We are honored to have you with us again.
    Any further evidence for the Defendant in the case?  You had some more questions, did you?

MR. MURTAGH:  Yes, sir.

(Whereupon, DR. JOHN I. THORNTON, the witness on the stand at the time of recess, re-sumed the stand and testified further as follows:)


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

BY MR. MURTAGH:
Q  Dr. Thornton, yesterday, I believe, when you were describing on direct examination your experiment involving the pajama top--or, I'm sorry, a piece of dacron polyester on the sled.
You described, I believe, the object on this sled and then tied by two pieces of cord; is that correct?
A  No; to be precise, first of all, I did not say it was dacron polyester.  That is a trade name.  It was polyester cotton.  The cloth was tied by three cords to the sled.
Q  And was the sled secured at either end by two pieces of clothesline?
A  That's right.
Q  Was one piece of clothesline anchored at the other end of a table?
A  Yes.
Q  And the other end was held by the person who assisted you?
A  Yes.
Q  And it was whipped back and forth in what I believe you described as a harmonic-type motion?
A  Well, the whipping back and forth of the hand would result in the target in a harmonic os-cillation, yes.
Q  Could you describe, sir, what you mean by "harmonic motion"?
A  Harmonic motion is a term from physics.  Actually, it is defined from the standpoint of the energy of a moving object as it is displaced from a fixed point.  In very simplistic terms, it is the movement back and forth in which the maximum velocity would be at the center of the traverse.  And at each end of the traverse the velocity would be zero.
Q  Would it be accurate to describe it as a curve, something like what I have just done with my hand?  In other words, are there peaks and valleys in the amount of velocity of the ob-ject?
A  Yes.
Q  Is it accurate to say that in conducting your experiment, the sled rested on a table at all times?
A  Yes.
Q  And when the motion was back and forth, it was lateral; is that correct?
A  Yes.
Q  Did you whip the sled up and down?
A  No.
Q  Would it be accurate to say that the sled was on a flat plane at all times?
A  Yes.
Q  Did you actually plunge the ice pick into the--
A  (Interposing)  Yes.
Q  --in the sled?
A  Yes.
Q  Would you describe by using your hands what motion you used?
A  Yes; I stood over the target.  I knew where the center of the traverse would be, and I would put the ice pick directly over the target at a very short distance, so that I could as-sure that I would hit the target close to the center of the traverse.  And then I would stab into the end of the cloth as the sled would travel underneath.
Q  Okay; and I believe you explained on direct examination--well, let me show you your chart, if I may.  Let me hand you Defendant's 66, and let me borrow the pointer, if I may.
What does this material beneath the double line represent?
A  The target material.
Q  Could you tell us what that was on your experiment?
A  Ham.
Q  You mean, you took a piece of ham?
A  Yes.
Q  You mean, like in a ham sandwich?
A  Yes.
Q  Okay; I'm sorry.  And did the ham absorb the thrust of the ice pick?
A  Yes.
Q  You found no torn areas when you did this?
A  No.
Q  Would it be accurate to say that the ham prevented the fabric from tearing?  Do you un-derstand my question?
A  Yes; but I don't see a connection, or a necessary connection with the ham.  The ham is a resilient material and capable of a certain amount of deformation that I think, in part, explains the fact that the holes are circular in appearance following the conclusion of the experiment.
I think any resilient material would be similar.
Q  Would it be accurate to say you used ham because under laboratory conditions it was the closest thing to a human body that you could come up with?
A  Yes.
Q  And so this ham, which--I understood you to say yesterday "tissue," and I thought you were referring to like Kleenex.  But when you said "tissue," you were referring to the ham it-self?
A  Yes.
Q  That absorbed the ice pick to approximately what depth?  Is there a scale representation here?
A  No; I did not determine that.  I would estimate it at probably two inches.
Q  In other words, your thrust would penetrate into the ham for approximately two inches?
A  Yes.
Q  Did the ham absorb the thrusts, so that when the material was being whipped back and forth it supported the material and it prevented it from tearing?
A  Well, it absorbed some of the energy.  I don't think that that is the determinative factor in conducting the demonstration.  I think that probably was the manner in which I would stab down and then pull the ice pick back up.
Q  In your opinion, Dr. Thornton, without a ham or some other object like a human body be-neath the fabric--if it were unsupported and moving back and forth--in your opinion, sir, would there be tearing?
A  No; I think that interpretation, really, would be a perversion of this particular experiment.
The experiment was designed to answer a question, which is whether or not a circular hole in the fabric necessarily means that the fabric was stationary.
Q  I thought I understood you to say on direct examination that the unsupported fabric--and I believe one of your photo macrographs showed a torn hole; is that correct?
A  Yes.
Q  Did that torn hole result from an unsupported piece of fabric being stabbed?
A  Yes.
Q  Okay, now, with regard to--
A  (Interposing)  I don't mean to contribute to any confusion here.  This outline is what I consider to be a plausible explanation for my observed results.  The question of the support versus non-support is really another matter, and supporting the fabric I can make some what I consider to be reasonably valid assumptions in designing the experiment.
    When we turn to unsupported fabric, then I am not sure how I would approach the design of the experiment.
Q  Let me ask you a question.  Assume hypothetically that someone is wearing the pajama top, Exhibit 101, and I think yesterday on cross-examination I showed you that there are nu-merous puncture holes in the back of it; is that correct?
A  Yes.
Q  Okay, so let's assume that somebody is wearing that and that the garment has some ten-sion on it.  In other words, that the back is somewhat bowed.  And that that person is being stabbed violently with an ice pick.  In your opinion, sir, would that produce--would that ne-cessarily produce torn areas in the pajama top?
A  Certainly punctured areas.  Torn areas--I don't know.  I really can't speculate as to the factors that would be involved in something like that.
Q  Would it, in your opinion, sir, produce puncture areas in the back of the person that was wearing it?
A  Again, I don't have any way to tell--of making a determination.
Q  Now--excuse me--let me get back here with the pointer.  Dr. Thornton, with regard to your test prints of the handprints of which you showed the slides.

THE COURT:  Mr. Murtagh, if you are going to another subject, I was going to call a little bench conference myself right now.  We haven't had one this morning.


B E N C H  C O N F E R E N C E

THE COURT:  Gentlemen, first off, and this is not why I got you up here but it is something that is on my mind so I am going to tell you: all these experiments and all this examining and cross-examining and so forth--it is interesting and it is technical and it may be going some-where.  But, for whatever it is worth, I think this case is going to rise or fall on one thing and one thing alone, and that is whether or not this jury buys the Defendant's story as to what happened.
    That is all there is in this case.  We have been here five weeks, and that is still all there is in this case.  I just make that as an observation.  The jury--I have done my best to keep them in line and up to now they seem pretty good and happy, but I warn you that somebody could be prejudiced by unnecessary dragging of the case out.
    That is not to say I won't let everybody have his full say.  I will do it if I can.  What I really got you up here for is to talk about this Stoeckley problem.  I understand she is in cus-tody.  I understand that she can be kept like that for 72 hours without being let out.
    Now, as far as finding her and making her available is concerned, I think the Court has done about all it can do.  I suggest to you that you ought to get your evidence so scheduled as to accomodate this particular thing rather than run the risk the next time she goes that she can't be found by anybody.
    So, now that she is available, I think that moots the question of whether or not we can take up secondary evidence of what she would have said, and I don't think in this kind of case--if she is available--it ought to be done.  My feeling about that is that, having made her available, that you must now avail yourself of her availability.

MR. SEGAL:  I absolutely agree that it is our desire to do that.  We need to know, however, Your Honor--you say she is in custody.  Is she in custody here in Raleigh or is she in Green-ville?

LAW CLERK:  She is in custody in Greenville--

THE COURT:  (Interposing)  Greenville, South Carolina.

LAW CLERK:  And they are ready to transport her here.

MR. BKACKBURN:  Pickens County jail is what I have been told.

MR. SEGAL: Well, Greenville is about three hours--two and a half hours.

THE COURT:  More than that.  It is three hours comfortably to Charlotte, and Greenville is al-most that same distance the other side.

MR. MURTAGH:  Do you know who runs the Police Department in Greenville?  Paul Stombaugh.

MR. SEGAL:  Maybe he will drive her down for us.  Your Honor, I understand she has been taken into custody pursuant to a warrant as a material witness in this case.  I would request that she be brought here forthwith to Raleigh and, as soon as she is here and we have a chance to interview her, we intend to call her as a witness.  That is my request and if I can be notified--

THE COURT:  That is all we needed to know.  Just tell the magistrate that there is no bond and just bring her here and make her available to the Defense counsel.

LAW CLERK:  He is awaiting word from our office.

MR. MURTAGH:  I will try and be brief, Your Honor.

(Bench conference terminated.)


BY MR. MURTAGH:
Q  Dr. Thornton, let me repeat my question.  With respect to your test handprints on the fabric that you used.  What position, sir, was the cloth in when you put your handprint on it?
A  In various configurations.  Some of the series--several series of the experiments were conducted with the cloth on a flat surface with my hand pressed down on it.  Other series were conducted in which I would put my hand over the cloth which was supported by a roll of paper towels in various positions--upright, horizontal, vertical, somewhere in between--and with different positionings of the hand.
Q  Did you conduct any experiments in which you took a piece of cloth, say a fairly large piece of cloth, hold it up something like this and put your hand on it?
A  Yes.
Q  And did you see those?
A  No, you did not see those.
Q  Now, Dr. Thornton, with respect to areas "C" and "D" on the sheet--I believe you used Government photos 820(a) and 821(a); do you recall that?
A  Yes.
Q  Let me hand these to you.  And, if I recall your testimony, sir, you testified that the areas which Mr. Stombaugh referred to as resembling handprints could have been caused by a heavy drip of blood and the water portion or the electolyte portion migrated to the outside of the stain; do you recall that, sir?
A  Yes.
Q  I would ask you to hold up one of those photographs--either one.  Do I recall correctly, sir, that when referring to the drip--and I think it might have been area "C" but correct me if I am wrong--in talking about the heavy drip, you pointed to one area; is that correct?
A  I think this is probably a representative area.
Q  All right, sir, that would be one area that would, in Mr. Stombaugh's opinion, correspond with a finger?
A  Yes.
Q  And you are saying that was caused by a drip, or could have been caused by a drip?
A  My testimony is that I think that it was not caused by a finger and that it probably was caused by a drip.
Q  Okay, so that would be this one over here.  How about that one over there?
A  Certainly, my testimony would be the same in connection with that area with respect to it not being a finger.  I think it is probably a drip.
Q  Okay, now, would this be a drip from some altitude or elevation?
A  I don't know.
Q  So then you would have another drip over here?
A  Yes; this area shows some indication of smearing also.
Q  Well, then would it be correct that in your opinion you would have three fairly large drips in the same area?  By the "same area," I mean the area marked "D" on the sheet?
A  I don't think I understand your question.  I see a great many drips there--dozens.
Q  Okay, well, a great many drips that would have produced that particular stain, is that what you are saying?  In other words, is that a random stain that occurs from a number of different drips which, taken together, formed what Mr. Stombaugh believes to be a hand im-pression?
A  I don't know that I would embrace the notion that it is a random distribution.  I have no idea what the factors are that resulted in that particular pattern.
Q  But your opinion with respect to the migration or the drip theory is related to each indi-vidual finger consideration--I'm sorry, configuration?  Do you understand my question?
A  Yes; I don't think I agree with what you are saying.  My conclusion concerning this and also section "C" is number one, that it's consistent with a bloody hand impression because I can't duplicate this type of pattern with a heavier area in the center.
    At that point then I think it is reasonable to say, "Well, then why do you get a heavier area in the center and a lighter area in--at the periphery?"  I think it is plausible to conclude that it is the result of some migration of the blood from that heavy area.
Q  In your experiment, were you able to control the amount of blood that was on your hand?
A  Yes.  I couldn't express it in quantitative terms, in terms of milliliters or anything like that; but yes, I could control the amount of blood.
Q  Well, as I understood your testimony yesterday, you had either smeared or completely coated your hand to start out with?
A  There were some experiments like that, yes--a very heavy deposit of blood.
Q  And is it your opinion, sir, that if a hand had some random distribution of blood on it, it could not have caused either stain "D" or stain "C"?
A  Yes, that would be my conclusion.
Q  And that's based on the migration of the stain?
A  Well, principally the fact that blood on a finger area does not give the heavy deposit in the center of the impression.  I weigh that more heavily than other aspects of this.
Q  Now, I believe yesterday on direct and talking about your qualifications, Mr. Segal brought out that you authored--I'm sorry, edited--the second edition of Kirk's Crime Investigation?
A  Yes.
Q  And I believe there was some reference to the chapters on blood and physical character-istics of blood?
A  I believe so.
Q  And let me show you Kirk's Crime Investigation, directing your attention to the photo-graphs on page 169, 170, and 171 and 172, and ask you to take a look at those.

(Witness complies.)

A  Yes.
Q  Now, would you tell us, please, what those photographs depict?
A  Figure 14-1, which appears on page 169, is the effective velocity on blood spatters--a single drop of blood dropped perpendicularly to distances indicated: A, two inches; B, four inches; C, three inches; D, 16 inches; E, 32 inches; and F, 60 inches.
Q  Okay.  Let me just interrupt you there and ask, would you describe perhaps, if you would, sketch it on the back of your chart or maybe one of ours, what basically--

MR. SEGAL:  (Interposing)  Excuse me, I prefer not to do that.  Use another piece of paper or one of the charts here.

MR. MURTAGH:  Surely.  The backs of all of ours are rather dark, but at your request I will defer.

BY MR. MURTAGH:
Q  Would you describe, please, to the jury, Dr. Thornton, perhaps using your book as an il-lustration, what happens when a single drop of blood strikes an object?
A  Well, I can--

MR. SEGAL:  (Interposing)  I OBJECT.

THE COURT:  I understood that counsel was going to withdraw the question and restate it, because the witness apparently was not understanding what was desired of him.

BY MR. MURTAGH:
Q  Dr. Thornton, let me ask you whether you would agree that depending on velocity and angle and other factors of the object which the blood strikes--is it accurate in your opinion that when blood strikes an object, the blood drop breaks up and a portion of it--or portions of it--radiate out from the center?
A  Now, that may well occur.  My hesitancy here a moment ago was because it is difficult for me to define the scope of my response.  The subject is somewhat complex.
    Yes, on many surfaces the droplet of blood will break up, casting off satellite droplets of blood, exceedingly minute droplets of blood.  But this is affected profoundly by the nature of the target material as is discussed on the monograph that you are holding there.
Q  Let me just identify this for the record.  I am holding a book entitled Flight Characteristics and Stain Patterns of Human Blood, which I believe is referred to as your text, and was edit-ed by Herbert P.--I'm sorry, Herbert L. MacDonald.  Are you familiar with that text, sir?
A  Yes.
Q  Let me show pages 48 and 49, which hold some fairly large photo micrographs and ask you if that helps you to illustrate your testimony?
A  No, not those.  First of all, they aren't photo micrographs.  Secondly, this particlar type of impression isn't relative to anything that we have discussed so far in this case.
Q  Well, I thought we were talking about blood drips on the sheet?
A  Yes, but I'm not--when I say "blood drips" I am not referring to where blood impacts on an area and then drips from that blood--the initial drip.  I am speaking of blood dripping from a wound in rather large droplets or drops.
Q  Would it be perhaps more accurate to say that that is directly, as opposed to a single drop of blood, which is what I believe you described yesterday?
A  I don't follow.
Q  My question, Dr. Thornton, is that I thought I understood you to say on direct examination that the handprint-like stains on the sheets were caused by a single drop of blood with re-gard to each finger-like stain?
A  Oh, no; there may be more than one droplet of blood in each of those areas, not just one drop of blood.  But in my terminology, the way I was describing it, I was using "drip" to mean
--as you call it--direct bleeding, a rather substantial amount of blood originating from a wound.
Q  If I were to tell you that those stains on that sheet--by that, I mean areas "C" and "D"--are found to be consistent with Type A blood, would you agree that if that is from direct bleeding, it would have to be from someone with Type A blood?
A  Yes.
Q  I believe on direct examination you were talking about the bottom sheet from the master bedroom, Government 120.  Do you recall that, sir?
A  Yes.
Q  And you were referring to spatter patterns on that.  Do you recall the size of some of those spatters that you talked about?
A  Well, they ranged from --the smallest I could measure was on the order of .005 of an inch.  They ranged--well, there was a continuum.  They just merged into large stains that would have been a tenth of an inch to .0025 of an inch.
Q  Would it be accurate to say they went from the barely visible to the readily visible?
A  Yes.
Q  I believe you said that in your opinion that type of fog or aerosol-type effect occurs when some object strikes a human body?
A  That is right.
Q  Now, let me ask you--I believe Counsel referred to Exhibit 307, which actually is the debris removed from this exhibit--so I think he was referring to 306 in evidence, what has been re-ferred to as the club.  Let me ask you--with respect to this fog or aerosol-type effect--is it analogous or similar to someone beating a rug to dust it out, and when you strike the rug--in the area where the rug beater strikes the rug--you get a dust cloud, in effect?
A  I think that is an apt analogy.
Q  Okay; so taking that analogy, would you say, in your opinion, that if someone were struck with this club, you would get this aerosol-type effect in the area closest to the part of the body struck and where the object strikes it?
A  Yes.
Q  Now, would the pattern where the blood lands be determined by the angle or the relative position of the person when struck?
A  Yes.
Q  Okay; so if someone were in a nearly supine position, or close to their back--on the floor on their back; right?
A  On the floor.
Q  And they were struck downwards, or that way (indicating), where would the pattern be?
Where would the greatest concentration of the blood be?
A  Closest to the floor.
Q  And what portion of the garments will be most susceptible--that is, the garments of the assailant--to the spattering?
A  The closest would probably be the arm areas and the leg areas.
Q  You say the arm and the leg areas.  I would think--and let me ask you, in your opinion--are the legs of my trousers closer to the area of impact than the sleeve?
A  In that particular configuration; yes.
Q  They are; okay.  Now, would the spatters that result from that--some of them would be larger, I take it?  I mean, are they all almost invisible, or are there some of them quite large?
A  Well, they are all quite small, speaking of that type of impact.  There is a contiuum from the barely visible to--oh, a spot that is several millimeters in diameter.
Q  You say they are all quite small?
A  Well, they are certainly quite small compared to an impression such as you see on "C" and "D" resulting from a drip from an open wound.
Q  Let me ask you--let me read to you from page 175 of the book you edited, reference blood--physical investigations--and see whether you agree or disagree with this statement: "...Propulsion from moving objects, e. g., bloody weapons.  Here the blood drops vary in size, but tend to be rather large and may travel considerable distances.  Massive deposits of blood may break away in rather large drops and at a high velocity from swinging objects.  This re-sembles the physics of a slingshot or catapult.  The largest blood spot produced will not, however, be larger than a freely formed drop that falls under gravity alone.  The blood sepa-rates from such a moving object from two causes: centrifugal force, acting on blood swung in an arc, and (b) abrupt change of direction of the moving object as reversal of direction be-tween successive strokes as in beating."  So, do you agree with that statement?
A  Yes; I do.  May I clarify my answer?
Q  Surely.
A  That really refers to something else.  It is a throw-off of blood from weapons.  And there is some indication at the scene of throw-off from a club.  It is found on the ceiling, where you might expect it.
    There is another paragraph in there--I think it is the preceding paragraph--that speaks of propulsion by impact.  And it is the propulsion by impact that we are really concerned with on these very, very small droplets of blood.
Q  Okay; well, let me ask you--do I take it that in conducting your examination, you were not concerned with the throw-off of larger drops of blood?
A  No; I was concerned with it--yes.
Q  Let me ask you with respect to some of these very small drops--I don't know whether "droplet" is the right term or not--the ones that range in size from 1/25,000 of an inch to
.005 of an inch.  Do you call those drops or specks or what?
A  I would call them very fine droplets.  I don't think those numbers you gave me were quite right.  They don't mesh with my recollection of my testimony.
Q  Dr. Thornton, on page 5197 of the transcript, in response to a question by Mr. Segal con-cerning the sheet, you answered: "...Well, the aerodynamic characteristics of blood in flight, traveling through the air--this subject has been worked out in some considerable detail.  Very fine droplets of blood such as this on the order of 25,000th of an inch down to perhaps 5,000 of an inch in diameter are characteristic of blunt impact--blunt impact of some object such as a club and a human being in an unexposed portion--I'm sorry--in an exposed portion--an area that is not covered with clothing."  I believe I said "1/25,000."  But we are talking about very small droplets?
A  Yes.
Q  Okay; some of those practically invisible?
A  Yes--tending toward invisible; yes.
Q  Sir?
A  Tending toward invisible.
Q  Would the examination--if they are tending toward invisible, would not one factor be the acuity of the vision of the examiner?
A  Yes.
Q  Let me ask you--with respect to some of those very fine droplets, is it possible that some of them are invisible to the naked eye?
A  Yes.
Q  And would their visibility or invisibility be affected by such things as the color of the sub-strata?
A  Yes.
Q  Okay, and the sheet you were examining is rather light?
A  Yes.
Q  And the blood droplets are darker?
A  Yes.
Q  Okay.  Now, with respect to this pajama top, I believe you testified that you found no fine droplets; is that correct?
A  Not of the type in nature that I would have expected had the pajama top been in close proximity to the victim at the time that the impact occurred.
Q  Okay.  Let me ask you: are you familiar with the chemical known as Luminol?
A  Yes.
Q  And what is Luminol used for?
A  Detection of blood.
Q  Is it used to detect very minute particles of blood?
A  Yes.
Q  Does it detect particles of blood which are, in fact, almost invisible?
A  Yes.
Q  Did you conduct an examination of this pajama top using Luminol?
A  For what purpose?
Q  Well, to see how many very fine aerosol-type droplets of blood?
A  No.  I don't think it would be necessary to employ the Luminol test for that purpose.  That would be using a piledriver to kill a fly.
    I examined the garment under magnification--

MR. SEGAL:  (Interposing)  I am sorry.  I couldn't hear you.

THE WITNESS:  I examined the garment with magnification and found no distribution of the type that we see on the bottom bedsheet.

BY MR. MURTAGH:
Q  Okay.  Now, are you saying that you found no droplets which are--did I understand you to say about and eighth or an inch or one-twentieth of an inch?
A  No; I didn't say that.  Certainly that is not the--what do I want to say?
Q  I don't know.
A  Clearly there are small droplets of blood on the cloth.  I have no quarrel with that.  But the number, the size, and the distribution do not correspond to anything like what I had seen on the bottom bedsheet.
Q  Is it accurate to say that the bottom bedsheet is not soaked in blood?
A  That is correct.
Q  All right.  And at least some portions of this pajama top are soaked in blood?
A  Yes.
Q  And in some of those unsoaked portions, did you or did you not find small droplets of blood?
A  Yes.
Q  Okay.  Now, let me ask you: did you make any assumptions with respect to the position of the pajama top as worn by an assailant during an assault with a club?
A  Yes; I think I did.
Q  And what assumptions were those, sir?
A  That the pajama top would be worn in the normal manner.
Q  Did you conduct any experiments in which the pajama top was ripped from the v-neck to the midline and from the armpit on the left sleeve right through to the hem, and then from the left armpit down to but not through the left sleeve?
A  No.
Q  Okay.  Is it possible, in your opinion, sir, that if a pajama top torn in a fashion such as this one is was being worn at the time an assault was being conducted with that club, that some portions of the torso or the arms would be bare?
A  Yes.
Q  And could, in your opinion, those bare portions of the body have absorbed any of the aerosol-type spray?
A  Yes.
Q  Okay.  Now, Dr. Thornton, with respect to the tearing of the fabric--and I believe you testified to a number of experiments in which you tore first bolt cloth; is that correct?
A  Yes.
Q  And when you tore the bolt cloth, I believe you testified that the number of yarns that fell out from gravity was minimal?
A  Yes.
Q  I think you used the numbers "two" or "three"?
A  No more than two.
Q  Okay.  But some do fall out from gravity?
A  Yes.
Q  Okay.  Did you conduct any--
A  (Interposing)  Not in every experiment.  That "two" would represent a maxiumum.  There are some tears that resulted in no loss of any yarns.  Again, it is probably a question of force.  If you are careful and tear the cloth slowly, you don't expect a loss of the yarns.
Q  Okay.  Now, in conducting your experiment, I believe you demonstrated that you took bolt cloth and you tore it?
A  Yes.
Q  What did you do with it after you tore it--the cloth?
A  I retained it.
Q  Well, I mean--I am sure you did.  But in terms of any movement of that cloth after it was torn?
A  No; no.  I did not attempt to pull out additional yarns.
Q  No; that isn't my question, sir.  With respect to the cloth itself, is it accurate to say that after you tore it--I assume you waited for any yarns to drop out?
A  Yes.
Q  And then did you take the cloth and put it aside?
A  Yes.
Q  Did you conduct any experiments using a pajama top in which it was torn from the yoke at the v-neck down to the right--
A  (Interposing)  I am sorry?
Q  Well, let me demonstrate it on myself.  If my jacket were the v-neck of the pajama top, did you conduct any experiments in which, you know, one of your assailants wore a pajama top, was grabbed in the yoke and pulled down and ripped?
A  Well, I am a little confused with the terminology.  To me, the yoke refers to the area on the back of the shoulders.
Q  I mean the v-neck; I am sorry.
A  I do understand your question.  And no, I did not tear the garment worn by another per-son.
Q  Is it accurate to say that you conducted no experiments with a garment that was torn and then continued in violent motion?  Do you understand my question?
A  Yes, I think that is fair.
Q  The question?
A  Well, no.  I think it is fair to say--I sort of lost track of your question.
Q  Okay.  Did you conduct--
A  (Interposing)  I did not continue with violent motion following this tearing of the garment.
Q  Okay.  In your opinion, sir, would violent motion--excuse me.
A  To qualify that, that is with respect to the bolt cloth experiment.  With respect to the seam experiments, I did continue with some other--
Q  Okay.  Now, let me ask you: with respect to the seam experiments, I understood your testimony that you sewed a seam; is that correct?
A  Yes.
Q  You took two pieces of the bolt cloth and made a seam?
A  Yes.
Q  Okay.  What type of stitching did you use?
A  Just a conventional stitching.  I asked my wife's assistance in setting up the sewing ma-chine.  And I did it.  It was whatever stitching was on the machine.
Q  Do you know, sir, whether it was stitched in the same fashion as the seams of this pajama top?
A  No.  I don't recall.
Q  All right.  Now, did you conduct any experiments with pajama tops in which the seam area was torn?
A  Yes.
Q  Okay.  Do I recall your testimony on direct correctly that when a seam is torn, scores of seam threads drop out?
A  May.  They may, yes.
Q  And that is from gravity alone?
A  Oh, no.  They fall on the paper as a result of gravity.  But they are dislodged by the result of the force in the rip.
Q  Well, my question: with the seams the same as with regard to the bolt cloth, did you rip the seam, wait for the threads to drop out, and then place the garment aside?
A  Yes.
Q  Okay.  Is it accurate to say that you conducted no experiments with a seam which con-tinued in violent motion after it was torn?
A  That is not quite right.
Q  Okay.
A  In conducting that series, I ripped the seam with various amounts of energy.  Some rips were very slow, resulting in virtually no loss of sewing threads.  In others, the ripping was violent, resulting in loss of considerable numbers of sewing threads.
    In a number of the instances in which there were many sewing threads still affixed to the cloth--they were loosely hanging in the holes in which they originated--then I would conduct other experiments--nothing particularly profound.  I would reach up and see how easily they would dislodge.
    In some instances, I would run my finger down the cloth and found that that was a fairly effective way of pulling the fibers out of the holes.
Q  Okay, now, with respect--if I understand your testimony, the more violent the ripping mo-tion, the more apt the seam threads are to drop out of their own accord.
A  I consider that really to be an extension of common sense.  There is nothing.
Q  I have no quarrel with that.  And then, do I understand that some seam threads would re-main in the holes and would drop out easily or could be pulled out easily?
A  Yes.
Q  Did you conduct any experiments in which someone wore a pajama top or the bolt cloth after it had been ripped and went through any motions?
A  No.
Q  In your opinion, sir, would it be possible to violently rip a seam and have no threads to fall out?
A  No.
Q  Now, let me ask you, with respect to Government Exhibit 101, and I believe you testified in direct examination with respect to the midline and by that I mean the area from the v-neck
--what I earlier mistakenly referred to as the yoke--down to the front.
    Now, let me ask you, with respect to what I believe would be termed the left inseam, and let me describe with reference to my own jacket--the seam which runs from the armpit down to the hem.
A  Yes.
Q  Did you examine that portion of this garment?
A  Yes; I did.
Q  And what--is there a seam at that area?
A  Yes.
Q  And was it ripped?
A  Yes.
Q  And would it be correct to assume that, in your opinion, if the left inseam of this pajama top was ripped, the seam threads would fall out?
A  Yes.
Q  Now, I believe also you were asked about the benzidine test.
A  Yes.
Q  And whether it was a specific for blood.  Would you explain, sir, what you mean by a "spe-cific for blood"?
A  A specific test for blood would mean that it would react with blood and no other material.
Q  Okay, and did I understand you to say on direct that the benzidine test is most noted for its sensitivity as opposed to its specificity?
A  I think all of the presumptive chemical tests for blood would fall into that category.  Yes; they are not known for their specificity.  The benzidine is probably more specific than several others, but for the sensitivity they will detect a small amount of blood.
Q  Okay, now, would it be accurate to say that the benzidine test is more apt to react al-though the reaction may not be specific for blood?  Do you understand my question?
A  No.
Q  In other words, let's say you have a stain, you spray benzidine on it, and you get a reac-tion.
A  Spray benzidine on it?
Q  However you do it.  I thought it was sprayed on but, if I am in error, please correct me.
Do you swab it on?
A  No; I suppose that some might do it that way.  I have never heard of it being used that way, with one exception, which really is not relevant here, but ordinarily the blood is removed and the test run in a porcelain spot tile.
Q  But is it ever used in the field--benzidine?
A  Oh, yes.
Q  Okay, in your opinion, would it be more apt to react--in other words, would you be more apt to get a reaction from the benzidine test than not get a reaction?
A  If there is blood?
Q  Yes.
A  Yes.
Q  Okay, you might get a reaction, if I understand your testimony with respect to specificity
--it might not turn out to be blood; is that correct?
A  If it is really blood and your tests indicate that it isn't?
A  No; my question is: given--if you get a reaction.  If I understand your testimony, you are saying that that doesn't prove it is blood.
A  That's right.
Q  Okay, but the test is very sensitive?
A  Yes.
Q  And it will react to minute parts of blood and to other things; is that correct?
A  Yes.
Q  Okay, suppose you get no reaction?
A  All right.
Q  I believe you testified there were certain inhibitors.
A  Yes.
Q  What would those be?
A  There are relatively few.  Actually, any strong reducing agent will inhibit the test--
Q  (Interposing)  Could you give us an example?  I'm sorry.
A  Well, an example that appears in the literature in connection with the benzidine test of a naturally occurring material is vitamin C.  Vitamin C will inhibit the test.  There are certainly strong reducing agents that you don't ordinarily expect to find in your household, but there are other materials.
Q  Well, let me ask you about household reducing agents.  Is orange juice one, for example?
A  Yes.
Q  So, in other words, if something had been swabbed with orange juice--if orange juice had been spilled on something and then you put benzidine on it, what reaction, if any, would you get?
A  Well, there are other factors involved.  We talked about concentration or--but it would tend to inhibit the test.
Q  So that you might get a false negative?
A  That's right.
Q  Okay, in your opinion, sir, would--let me ask you: do you have any reason to believe that orange juice had been washed from the walls in the living room of the MacDonald murders?
A  No, sir.
Q  Okay, if I were to tell you that there is testimony in this case that areas were tested with benzidine and no reaction occurred, in your opinion, sir, what would that indicate?
A  It would indicate that the material that was tested was either not blood or that the amount of blood was insufficient for a reaction or that the test had been conducted improp-erly.
Q  Okay, if the stain was visible to the naked eye--the stains were visible to the naked eye, in your opinion, sir, would the stain be of sufficient quantity that if it were blood, it would give a positive reaction?
A  Yes.

MR. MURTAGH:  Your Honor, that concludes cross-examination.  I believe there is one other matter that we need to approach the Bench on.


MR. SEGAL:  Yes.

B E N C H  C O N F E R E N C E

THE COURT:  What do you have now?

MR. SEGAL:  Three brief matters.  One, I have some redirect of Dr. Thornton.  I must apolo-gize: I omitted yesterday two matters which I would like to do this--do my cross by redirect.
    The two matters that I omitted which would totally not at all touch these subjects were the fact that Dr. Thornton recovered a flower pot, which we think of as the flower pot from the house, and has tested it and reconstructed it, and it has been photographed and I want to identify that, and show what he has found on that.
    Secondly, I totally neglected--and it is an error on my part--to ask a singular matter about the, when I was going through the sheet about the various prints he said he agreed, for instance, with Mr. Stombaugh--question that there was a cuff outline that he thought was consistent with Dr. MacDonald--there was a question I needed to ask him about that matter.
    It is very brief; namely, that what extent of pressure was required.  Was it pushing, lying, heavy, light, dark--that's the question.
    So I would ask after I finish my redirect and if Mr. Murtagh has any recross, to be allowed to pursue those two areas.
    It should not be lengthy.  I can't--but I consider it important to my case.

THE COURT:  What is the problem?

MR. MURTAGH:  Your Honor, first of all, I would like to resolve the matter of the moist blood.

MR. SEGAL:  Let's finish with my request.

THE COURT:  You just want to ask him some things you neglected to do yesterday?

MR. SEGAL:  Two of them--I have named them what they are, yes.

MR. MURTAGH:  Your Honor, if I had gone into those areas on cross-examination--

THE COURT:  (Interposing)  This is something else.  He says that he is--look here, he has been five weeks and two days and that he just got--he just overlooked it.  Now, you want me to hold him to that?  What if you come tomorrow and you overlook something?

MR. MURTAGH:  Well, Your Honor, if we come up and overlook something I think we are out of luck.  We haven't done it.

THE COURT:  Well, I am going to invoke the rule of quandoque bonus Homerus dormitat.

MR. MURTAGH:  Okay.

MR. SEGAL:  There is another matter of that, and that is the question that I wanted to put to Doctor--

THE COURT:  Excuse me, I don't believe Wade Smith got the translation.

MR. SMITH:  I'm from way off down in Stanly County and we don't know any of that stuff, Judge.  What is that?

THE COURT:  It means that even the mighty Homer on occasion will nod.

MR. MURTAGH:  Judge, on the matter of the moist blood, I do think that unless Mr. Segal has a specific--we gave them the transcript last night.  We did not get it back.  You had my transcript.

MR. SEGAL:  We gave it back to you at 5:30 yesterday.

MR. MURTAGH:  I did not get it back.

MR. SEGAL:  I delivered it to your office at 5:30--the clerk is a witness to that.

MR. MURTAGH:  I don't believe there is a reference in there.  What Shaw was testifying about is he had been testifying on direct about the blood in Kimberly's room--and that's much earlier in the day.
    And I think that to say that his testimony can be construed that if he said blood was tacky at 4:00 o'clock in the morning, that that covers blood that is tacky at somewhere around 1:00 o'clock in the afternoon, is stretching the transcript.

MR. SEGAL:  Let me shorten this, if I may.  The material that I am looking for did not appear in the section of Mr. Shaw's transcript that Mr. Murtagh lent me last night.
    In reviewing our other trial notes we have reason to believe that information appears dur-ing my cross of Mr. Ivory when we did the demonstration.  This morning we asked Govern-ment counsel, Mr. Blackburn, whether he would permit us to examine during this morning Mr. Ivory's testimony in that regard.
    He said unless Your Honor would order it, they would not permit me to examine it.

THE COURT:  Well, go on and let him have it.

MR. SEGAL:  We would like to see Ivory's testimony.  Now, in that regard I suspect that we will be done within 15 minutes on these various matters that I want to cover with Dr. Thorn-ton.
    He is not leaving.  I will ask, after we have found the appropriate matter--if I don't find it I will just abandon the subject matter.  If I do find it we will call him back later in the day.  We can keep on moving that way, is that all right?

MR. MURTAGH:  Your Honor, I would object to that, that, you know, it seems to me Mr. Segal is getting several bites of the apple on direct examination with respect to Dr. Thornton.
    You know, he said yesterday that it was Shaw's testimony.  Apparently it isn't Shaw's testimony.  If he had said Ivory, we would have given him Ivory.  But at any rate I think it should be resolved.  He should go into the matters on direct that he is permitted to do.
    I think he should find that area in the transcript and either--

THE COURT:  (Interposing)  Well, I am going to give him one more bite at the cherry and I'm going to renew an observation that I made earlier in the day: with this kind of testimony--forensic, scientific, or otherwise--it is my considered judgment that neither one of you is making any hay whatever with this jury.
    Now, go on from there.

(Bench conference terminated.)


MR. SEGAL:  I have some questions on redirect, Your Honor.

THE COURT:  Go ahead.


R E D I R E C T  E X A M I N A T I O N  10:36 a.m.

BY MR. SEGAL:
Q  Dr. Thornton, in regard to the procedure that Mr. Murtagh and Mr. Blackburn did yesterday afternoon with the pajama top here, did that procedure in any scientific way attest or relate to the testimony of Mr. Stombaugh that the holes in the pajama top were made while the pa-jama--the puncture holes in the pajama top were made while the pajama top was stationary?
A  I don't believe so.
Q  Now, again, in regard to the Murtagh-Blackburn procedure yesterday afternoon, did that procedure constitute, in your opinion, a scientifically valid test or demonstration of whether the puncture holes in the blue pajama top occurred in a fashion described by Dr. MacDonald in various statements that you have been shown or read in this case?
A  No.  May I explain my answer?
Q  Yes, you certainly may.
A  Well, presumably this is an experiment to determine the feasibility of something occurring.
If it is, it should be conducted in accordance with scientific principles, scientific methods.
    There is a seductive appeal to this type of experimentation--
Q  (Interposing)  What do you mean when you say "seductive appeal"?

MR. ANDERSON:  OBJECTION.

THE COURT:  I will SUSTAIN that.  I think this is more in the nature of editorializing.

BY MR. SEGAL:
Q  Without reference to that last phrase, go on with your comments, if you would, about the Brian Murtagh-Blackburn procudure?

THE COURT:  I thought the witness answered this question yesterday.  He said that that ex-periment was scientifically silly; isn't that what you said?

THE WITNESS:  Yes, Your Honor.  I sort of regret having phrased it in that manner.

THE COURT:  All right; well, explain that, then.

THE WITNESS:  Well, it didn't adequately convey what--how I feel about that type of experi-ment.  Ultimately science has to be judged, has to be measured, in terms of process, not in terms of product.
    If the processes have validity, if there is quality in the process, then there will be quality to the product.  In an experiment--an ad hoc experiment of this sort, there are so many un-controlled variables--proper procedure in experimentation--scientific experimentation--is to maintain constant as many variables as possible.
    Hopefully all but one--and then vary that particular variable, and then hold that variable constant and move on to another.
    In the type of experimentation that was conducted here yesterday, there are so many variables about which we must speculate.  And in fact the--there is some confusion in my mind as to the very goal or what is intended to achieve by the experiment.
    If the experiment--on the one hand we have an attempt to kill a pajama top by stabbing into it with an ice pick.  I see a distinction between that and an attempt to kill a human being wearing a pair of pajama tops in some--or having the pajama tops pulled over his head or in some undefined and vague manner.

BY MR. SEGAL:
Q  Now, in regard to certain matters that Mr. Murtagh has asked you on cross-examination and in certain areas you have given some answers.  I want to now ask you a series of ques-tions in a similar format.  And they go as follows: first of all, as a result of any of the answers that you have given Mr. Murtagh in regard to Mr. Stombaugh's testimony that the puncture holes in the blue pajama top were made while it was stationary.
    As a result of any answer you have given Mr. Murtagh, have you changed your opinion in that regard?
A  No.
Q  What is your opinion then, sir?
A  In my opinion, the appearance of circular holes in a fabric of this sort does not necessarily suggest that the garment was stationary at the time that the holes were placed in it.
Q  Again, Dr. Thornton, as a reasult of any of the answers that you gave Mr. Murtagh, have you changed your opinion that if the blue pajama top was worn when Mrs. MacDonald was struck with an object--like the club that we see in this case--have you changed your opinion that there would be evidence of an aerosol blood pattern on the pajama top?
A  No.
Q  What is your opinion in that regard?
A  My opinion is that there would have been a dispersion of very fine droplets of blood on the pajama tops.
Q  As a result of any of the answers that you gave Mr. Murtagh in regard to the question of whether the number of fibers--the amount of fibers--that would fall from the fabric of which the blue pajama top was made; if it was ripped in an area which was not a seam--as a result of the answers you gave to any of those questions, have you changed your opinion in that regard?
A  No.
Q  What is your opinion in regard to the number of fibers, or the amount of fibers, that would fall from a tear of an unseamed area?
A  That they would be very few in number, perhaps zero.  In any event, a very small number.
Q  In regard to the answers that you gave Mr. Murtagh as to the amount of fibers or threads that would fall if a tear was made in a fabric along the lines of the blue pajama top, when the tear was made in a seamed area--now, have you in any way changed your opinion?
A  No.
Q  What is your opinion in regard to that matter?
A  That the number of threads lost is quite variable and appears to be a function of the force applied to the tear and to the effort applied to the fabric subsequent to the tear in removing the threads from their holes.

MR. SEGAL:  That is all I have on redirect.  With Your Honor's permission, there are one or two matters I wanted to cover on direct, unless Mr. Murtagh has any further recross-exami-nation of what we have done up until now.

MR. MURTAGH:  I have no further questions, Your Honor.

THE COURT:  All right; call your next witness.

MR. SEGAL:  I must start with a preface--

THE COURT:  (Interposing)  Are you ready to proceed?

MR. SEGAL:  Yes, Your Honor.

THE COURT:  Well, go ahead.

MR. SEGAL:  I just want to say, I apologize for not having covered this yesterday in the di-rect examination, but I think it will follow very briefly.

THE COURT:  All right.


F U R T H E R  D I R E C T  E X A M I N A T I O N  10:42 a.m.

BY MR. SEGAL:
Q  Yesterday I asked you about an area of the blue bedspread [sic] here which Mr. Stom-baugh had marked as to various areas, and one of these areas, you had indicated that you agreed with him as to the fact that it appeared to contain what could be an impression of the cuff of the blue pajama top in this case?
A  Actually, there were two areas.
Q  And what were those two areas?
A  "A" and "B."
Q  And what was your conclusion as to what could have made those impressions?
A  I believe Areas "A" and "B" are consistent as having been made by the blue pajama top.
Q  Did you make any effort to ascertain how much pressure was being applied to the sheet at the time an item such as the blue pajama top made that impression?
A  Yes.
Q  Will you tell us what you did and what your conclusions were?
A  It is my opinion that the impressions could have been made by a rather gentle contact between the pajama top and the sheet.  There is nothing that would suggest to me that there was a great deal of force involved, or that there was any significant weight between--any significant weight applied to the pajama top with the arms of the pajama top in be-tween.  In other words, a rather casual contact with the sheet could have resulted in an impression of that nature.
Q  When you say "significant weight," I am going to ask you if you could give us any kind of example of how that would have happened, so that perhaps we can better understand your meaning of that term?
A  I think a force of less than two pounds could result in impressions of that sort, particularly the impression "B," I believe, if I may refer to my notes?
Q  Yes, certainly; would you do that, please?
A  Yes; "B" might have resulted from a force of just a few ounces, something consistent with brushing--

MR. MURTAGH:  (Interposing)  I'm sorry?

THE WITNESS:  Something consistent with even brushing the sheet aside, something of that nature.

BY MR. SEGAL:
Q  I have no further questions on that subject.  I am going to ask you now to address a dif-ferent subject with me, Dr. Thornton.
    Did you have occasion recently to go to 544 Castle Drive, the MacDonald house?
A  Yes; I did.
Q  When did you do that?
A  Last Saturday.
Q  Did you have occasion to make an examination of the living room of the MacDonald house?
A  Yes.
Q  And did you find there a plastic flower pot--white plastic flower pot?
A  Yes.
Q  Did you have occasion to record that finding?
A  Yes; I did.
Q  May I see that, please?

MR. SEGAL:  May we have a photograph marked as a Defendant's Exhibit, please?  That would be number 67, Your Honor.

(Defendant Exhibit 67 was marked for identification.)

MR. MURTAGH:  Your Honor, could we have an offer of proof on this?

MR. SEGAL:  Yes; do you want it here or at sidebar?

MR. MURTAGH:  At sidebar.


B E N C H  C O N F E R E N C E

MR. SEGAL:  We intend to show that the crime scene when examined by Dr. Thornton re-vealed that in fact this plastic flower pot that was on the coffee table is not, in fact, the flower pot that was there at the time of the crime; that the pieces that appear in the back-ground, in fact, are reasonably concluded to be the flower pot; and that he will explain what condition they are in, and will show how he arrived at that conclusion--and that, in fact, we offer that as further evidence of the destruction of the evidence at the crime scene now and subsequently.

THE COURT:  I don't know if there is an objection, but I assume if there is one, it would be based on the fact that it is cumulative, since you have shown all that yesterday by Oster-burg.

MR. SEGAL:  On this subject, we were not permitted to do this with Mr. Osterburg, Your Hon-or, so we dropped the matter.  We tried to question him and the Government objected to that.  It will not be lengthy, but it seems to me the Government has represented consistent-ly--

THE COURT:  (Interposing)  Let's go.  Let him ask it.

(Bench conference terminated.)


BY MR. SEGAL:
Q  Dr. Thornton, I want to show you a photograph that has been marked for identification as D-67, and ask you if you would tell us what it depicts, and then please exhibit it to the jury so they may see it also?
A  This is a photograph I took at the scene at 544 Castle Drive on the 11th, last Saturday.  It depicts a portion of a slat table in the living room.  On top of the slat table is a white plas-tic flower pot.  On the background on the floor are the shards of another broken white plastic flower pot.
Q  Did you examine both the plastic flower pot that appears on the coffee table and the pieces of the flower pot that you say are on the floor behind it?
A  Yes.
Q  And what did you do with the pieces of the flower pot on the floor?
A  I collected them.  They were 11 in number.  I reconstructed the broken pieces by simply putting them back together in the manner in which they were before they were fractured and taped them on the inside.  I rebuilt the plastic flower pot.
Q  Did you then make any comparisons between the white plastic flower pot that is sitting on the coffee table in that picture and the plastic flower pot that you put together and photos of the crime scene taken on February 17, 1970?
A  Yes; I did.
Q  And what, if any, conclusion did you arrive at as to which of those two flower pots was on the floor as depicted in the various crime scene photographs introduced by the Government?
A  The flower pot that is on top of the table is definitely not the flower pot that appears in the crime scene photographs.  The flower pot that was broken--a comparison of the recon-structed flower pot with the scene photographs reveals considerable agreement with respect to the distribution of the scum of earth inside the flower pot.
    On that basis, I think that it is very likely that--I would say with a little more conviction than that--I think it is exceedingly likely that the broken flower pot is, in fact, the flower pot that appears in the original crime scene photographs.
    That is also the flower pot that has been processed previously for latent fingerprints.
Q  You say the broken flower pot--the one you reconstructed--is the one that gives evi-dence or shows evidence of having been processed for fingerprints?
A  Yes.
Q  Prior to this, to what extent--how much of that broken flower pot had been processed for fingerprints?
A  The entire surface area--the outside surface area--not the inside--but the entire circum-ference and base of the flower pot.
Q  Did you find any evidence that the white plastic flower pot--the one that is now sitting on the coffee table and appears in the foreground of your photo--any evidence that it had been processed in any place for fingerprints?
A  No; there is no latent fingerprint powder on it at all.  It would be my opinion that there had never been an attempt to process this for latent prints.  There is no indication of print powder having been washed off either.
Q  Now, based upon your own experience in criminal investigation, as a crime laboratory di-rector and having processed crime scenes, do you have an opinion that the finding of what you have concluded was that the flower pot that was in the MacDonald living room on Febru-ary 17, finding it in the condition that you did and the place that you did, is that consistent with any good police practice that you are aware of?

MR. MURTAGH:  OBJECTION.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  Finally, in a different matter then--

MR. SEGAL:  If Your Honor pleases, before I proceed with the last matter that we have, may we have this photograph published to the jury?

THE COURT:  Yes.

(Exhibit passed among the jury.)

BY MR. SEGAL:
Q  Finally, again, this was a matter that I touched on briefly on direct and neglected to ask you a question about this matter.  I think the last matter that I asked you about on direct examination yesterday was whether or not--and let me find the question--

MR. MURTAGH:  Your Honor, are we into some new matters?

MR. SEGAL:  Yes.

THE COURT:  Oh, yes.  He said he forgot to do this yesterday.

MR. SEGAL:  And I apologize to both the Government and the Court.

THE COURT:  And his apology has been accepted and we told him to go right ahead.

MR. MURTAGH:  Yes, sir.

BY MR. SEGAL:
Q  I asked you whether you had read testimony of Shirley Green in regard to the reconstruc-tion experiment that she said she did in terms of putting 48 probes into holes in the--rather, taking 48 holes in the pajama top and making them fit into 21 holes.
A  Yes.
Q  And I asked you at that time the question of whether you had an opinion as to whether or not she did in fact do what she said she did, and you said you had an opinion in that regard.
A  Yes.
Q  And what was that opinion?
A  I consider her reconstruction to be impossible.  I consider it to be conceptually unsound and contrived.

MR. MURTAGH:  Your Honor, I would OBJECT.

THE COURT:  Yes, I will ask the jury not to consider the statement by this witness that what some other witness did was contrived.

MR. SEGAL:  All right, Your Honor.

THE COURT:  Erase that from your minds, please.  We will consider that to have been an im-proper comment.

BY MR. SEGAL:
Q  What I neglected to do and I now ask you: would you please explain to us what the basis of that conclusion was?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  SUSTAINED.

MR. SEGAL:  May we see Your Honor?

THE COURT:  I understood that you wanted to go into some new matters.  This is a matter you covered yesterday.

MR. SEGAL:  I had covered the impressions and had neglected to ask a question about the cuff impression.  I had neglected to ask Dr. Thornton the basis for the opinion.

THE COURT:  All right,let him say what his basis was.

BY MR. SEGAL:
Q  Would you tell us: what is the basis for your conclusion about Ms. Green's experiment?
A  Yes; it would help me if I could use some of the Government's exhibits.
Q  Do you have them there?
A  I think they are close at hand; yes.
Q  All right.
A  May I proceed?
Q  Yes, please, Dr. Thornton, if you would tell us the basis of your conclusion.
A  I used two different documents, really, to make this determination.  The first consists of a laboratory work sheet of Mr. Stombaugh which appears to be a 1971 document, and I used Government Exhibit 1076(a) which is purported to be a worksheet of Shirley Green consisting of--which indicates a direction of travel of the ice pick thrusts in the blue pajama top.
    In examining these documents, I find that Mrs. Green has designated hole number 9 as originating from the outside of the garment extending to the inside.  This is outside to inside.
Mr. Stombaugh's original notes designate this thrust from an examination of the direction in which the fibers are pointing as an inside to the outside.
    That is a discrepancy and, on the basis of that, I would conclude that thrust 20, which appears in this reconstruction, is in error.  In my mind, that contravenes the entire recon-struction--
Q  (Interposing)  Did I understand you to say "in error"?  Again, putting it in lay terms, you mean Mr. Stombaugh says the hole was what--an exit hole--and Ms. Green arranged it in a way that it became an entry hole?
A  That's right.  With respect to hole number 12 originally designated by Mr. Stombaugh in 1971, he has designated this as from the outside in.  Ms. Green's reconstruction has it as inside-out.  Again, that is a second discrepancy, and on the basis of that I would eliminate this as being a possible reconstruction.
Q  Putting that again in lay terms, Mr. Stombaugh had it as what--an exit hole again?
A  As an entrance.
Q  Entrance hole, and the way Ms. Green did the reconstruction, she did it as a--?
A  Exit.
Q  Is there anything further that you based your opinion on?
A  Oh, yes.  Hole 16--Mr. Stombaugh originally designated this as outside to inside--an entrance hole.  This is all relative, of course, to the normal outside of the garment.  Mrs. Green's reconstruction designates this hole as an inside to outside, and that is the third discrepancy--again eliminating this reconstruction.
    On thrust or hole 22, originally designated by Mr. Stombaugh in 1971 from an examination of the garment at that time as outside in--
Q  (Interposing)  Meaning it was an entrance hole?
A  Yes.  Ms. Green's reconstruction assumes that this is an inside-out or an exit hole.  The significance of this is that thrust 22--not 22--I beg your pardon--one.
Q  Thrust number one?
A  Thrust number one is in error.

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

THE COURT:  Yes.  I will SUSTAIN the objection.  I will let him tell what he found.

BY MR. SEGAL:
Q  Let's put the answer--the question to you this way: having found that Ms. Green has done it the way she had done it, does that appear to be using the holes in the same fashion that Mr. Stombaugh identified them; that is, did she make the exit holes exit holes in her construction, or did she make the entrance holes the entrance holes in her construction on that particular probe?
A  I don't understand the question.
Q  Well, what I am trying to ascertain is what is the basis of concluding that she--what is the error that she made in your examination of the probe?
A  Well, it is inconsistent.  The hole either is an inside-out or an outside-in.  Mr. Stombaugh originally designates it as outside-in.  She--in deriving this reconstruction--she denies that it is an outside-in, and--

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

MR. SEGAL:  It is a technical term, Your Honor.

MR. MURTAGH:  There is nothing technical about it at all.  I think--

THE COURT:  I will SUSTAIN the objection.  I will let him rephrase his answer.

BY MR. SEGAL:
Q  When you say "denies," what do you mean, Dr. Thornton?
A  She contravenes the information provided by Mr. Stombaugh.
Q  Would you say she did it differently from--

MR. MURTAGH:  (Interposing)  We MOVE TO STRIKE that, Your Honor.

MR. SEGAL:  I had not asked the question.

THE COURT:  OVERRULED.

BY MR. SEGAL:
Q  Can we say in lay person's terms that she did it differently than the way he described the holes?
A  Yes.
Q  All right.  Hereafter, let's use my terms and then see if that will work better.  What, if anything else, did you base your opinion on?
A  Hole 36 was originally designated by Mr. Stombaugh as inside-out or an exit hole.  In Ms. Green's reconstruction, it is designated as outside-in or an entrance hole.  Again, just with respect to that one particular discrepancy, I think that it negates the validity of this recon-struction.

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

THE COURT:  OVERRULED.  He has testified that the thing was impossible.  So, that is just in furtherance of that same answer.
    Go ahead.
    Isn't that what you say is your opinion?

THE WITNESS:  Yes, Your Honor.

BY MR. SEGAL:
Q  Any further basis for your opinion in that regard?
A  No.  I think that is sufficient.  With respect to hole number 48, Mr. Stombaugh hasn't de-signated that as being one way or the other or whether he cannot determine that.  So, I can't properly evaluate that particular hole in the pajama top.
    But on the basis of the six foregoing discrepancies, I think that this is impossible.

MR. SEGAL:  I have no further questions.  You may cross-examine.


F U R T H E R  C R O S S - E X A M I N A T I O N  11:05 a.m.

BY MR. MURTAGH:
Q  Dr. Thornton, you read Mr. Stombaugh's report of 1971; did you not?
A  Yes.

MR. SEGAL:  I neglected to mark that, Mr. Murtagh.  If I may at this point?

MR. MURTAGH:  Mark what?

MR. SEGAL:  The report that you are talking about.
    May we borrow your copy, Dr. Thornton?  We would just have Mr. Stombaugh's report marked as a Defendant Exhibit.  That will be D-68.

(Defendant Exhibit No. 68 was marked for identification.)

MR. SEGAL:  Identified for the record as a 13-page report from the Federal Bureau of Inves-tigation.  Are we talking about the same thing?

MR. MURTAGH:  No; we are not.

MR. SEGAL:  Under the date of--

MR. MURTAGH:  (Interposing)  We are not talking about the same report, Your Honor.

MR. SEGAL:  The document would be identified by the File Number at the top, 70-51728-66.
In the upper left-hand corner, it says, "Recorded 6/10/71."  That is D-68.

BY MR. MURTAGH:
Q  Dr. Thornton, I am referring to the report of Mr. Stombaugh furnished to the Defense dat-ed July 2nd, 1971.  Directing your attention to page three, I would ask you whether you agree or disagree with this statement of Mr. Stombaugh: "...The apparent frequent handling of specimens Q7, Q9--"
A  (Interposing)  I am sorry.  I have another document in front of me.
Q  Well, let me show you this one.
    Your Honor, I would represent that this is the report, a portion of which was published to the jury by the Defendant by means of a blow-up.
    Anyway, let me hand you this.  Directing your attention to the second and third para-graph, I would as you to read those, please.

THE COURT:  Let's let him do this, if he has got to read a little, while we take our morning recess.  We will come back at 11:30.  Then he will be ready to answer your questions, I hope.
    Take a recess until 11:30.  Don't talk about the case.

(The proceeding was recessed at 11:07 a.m., to reconvene at 11:30 a.m., this same day.)


F U R T H E R  P R O C E E D I N G S  11:30 a.m.

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

THE COURT:  All right, now proceed.

(Whereupon, DR. JOHN I. THORNTON, the witness on the stand at the time of recess, re-sumed the stand and testified further as follows:)


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

BY MR. MURTAGH:
Q  Dr. Thornton, let me back up a bit and ask, after you testified yesterday, and I believe your last testimony--the last series of questions--pertained to the Shirley Green experiment, is that correct?
A  Yes.
Q  Now, between that time and the time you took the stand this morning, did you discuss your testimony with respect to any experiment or any conclusion of yours in regard to Shirley Green with any person?
A  I discussed it with my wife on the telephone and there was a reporter that Mr. Segal said I could talk to.  I did not talk to Mr. Segal about it or any of the other attorneys.
Q  Did you talk to any of Mr. Segal's aides?
A  No.
Q  Now, with respect to your testimony a few minutes ago, I was about to ask you with re-spect to a report from Paul Stombaugh in 1971.  Do you recall that?
A  Yes.
Q  Let me read this paragraph to you and see if you agree or disagree.
    "The apparent frequent handling of specimens Q7, Q9, and Q12"--for the sake of my ques-tion, Q12, I believe, is Mr. Stombaugh's designation of the pajama top--"has caught the yarn surrounding the holes to return from both parts to their original positions, thus preventing a definite conclusion to be made as to whether each hole is an 'entry or exit hole.'"
    Would you agree with that as a scientist?
A  You are asking me if I agree?
Q  Do you agree that is his statement?
A  Yes.
Q  And it goes on in the next paragraph:
    "However, based upon microscopic examination of the garments in their present condition, six holes in specimen Q12 had the general appearance of being entry holes, and five holes had the general appearance of being exit holes."
    Do you agree that that is his statement?
A  Yes.
Q  And for the purpose of this report do you agree that Mr. Stombaugh was assuming that the pajama top was being worn in the normal fashion?
A  I would make that assumption.  His notes have them designated as inside-out or outside-in or question mark.
Q  Yes, now, what I'm saying is, with regard to the ones which he designated as exit holes, is he or is he not talking about a hole which goes from the inside of the garment out?
A  Yes, that is my interpretation.
Q  So the exit or entry hole would be prefaced upon the garment being worn in the normal fashion?
A  Yes, this is consistent with, I think, everyone's terminology--Ms. Green's and my own.
Q  Okay, now if the garment were turned inside out, would not the exit holes become entry holes and entry holes become exit holes?
A  No.  Not under that terminology, because the inside and the outside of the fabric can be determined, and if there's any internal consistency between 1, 2, 3, 4, and 5, that would not apply.
Q  Well, my question is, does it not--tell me which way the fibers point to the extent that you can determine that.  Doesn't that depend on what position the cloth was--whether it was inside-out or right side out?
A  It has to be oriented in that manner, yes.
Q  And would it be accurate to say that with respect to Mr. Stombaugh's report, he reached no definite conclusion with respect to exit or entry holes?
A  That is not my interpretation.  I understand his report to say that for the most part he could not determine the direction, but he indicates, I believe, six of one and five of another--which, by the way, does not correspond to his notes.  He has another number in his notes.
Q  Okay, well, with respect to the language that he used, do you agree that he said that the exit and entry holes had the general appearance of being entry holes?
A  Yes.
Q  Now, this was 1971, right?
A  Yes.
Q  Would it be accurate to assume that over passage of some years, say to 1974, that the yarns would continue to return to their normal positions?
A  Oh, yes; I don't think that you could determine much of anything at the present time, or even perhaps in 1975.  I would accept the 1971 results as being more valid than a later time.
Q  Now, with respect to your testimony with regard to Ms. Green, let me ask you, did Mr. Stombaugh to your knowledge testify in this court with respect to any exit or entry holes?
A  Not to my knowledge.
Q  And let me ask you with respect to the reconstruction that Ms. Green did: would you agree that Mr. Stombaugh had testified that it was Ms. Green who did the actual insertion of probes?
A  Yes, that is my understanding.
Q  Now, Ms. Green had found the pajama top inside-out, do you agree?
A  Well, I don't understand the significance of that.  We have a terminology here with which we must be consistent.  The inside of the fabric is the inside in the normal position of wear, of wearing the garment.  The outside is the outside, and we have to adopt that and be con-sistent throughout the experimentation.
Q  I don't have any problem or quarrel with that.  What I am asking is, did Ms. Green in fact turn the pajama top right sleeve inside out?
A  Yes, and folded in some manner.
Q  Now, are you saying that Ms. Green did not in fact insert 21 probes through the holes which she has denominated here?
A  Oh, she did indeed.
Q  Well, then are you saying that Ms. Green did, in fact, align 21 probes through 48 holes?
A  Yes.
Q  Okay, what you are saying is that she did not take Mr. Stombaugh's previous determina-tion as to which had the general appearance of an exit hole and which had the general ap-pearance of an entry hole?
A  I think either she ignored it or perverted the results.

MR. MURTAGH:  Your Honor, I would MOVE TO STRIKE that answer as being not responsive.

THE COURT:  I will ask the jury not to consider that.

BY MR. MURTAGH:
Q  My question is: are you able to tell us that this picture does not, in fact, represent what it purports to be--that probe 19 goes through holes 4, 5, and 6, and so on.  Are you in a posi-tion to tell us that?
A  Yes, absolutely, because of the discrepancies on thrusts 9--not thrust but hole--9, 12, 16, 22, 35, and 36.
Q  Well, you are saying that--we are talking apples and oranges then.  Ms. Green put the numbers on here herself I believe she testified; and what you are telling me is that Stom-baugh's previous determination of which had a general appearance of an exit and which had a general appearance of an entrance hole was not followed?
A  That is right.
Q  I don't have any quarrel with that.  What I am asking is, do these probes in fact go through the holes which she says they did?
A  Oh, yes.
Q  Well, I misunderstood you.  I thought previously you were testifying that this picture was not what it purported to be?
A  Well, maybe we are talking apples and oranges, because I don't think it is what it purports to be, and that is a valid reconstruction of the pajama top, taking all the evidence into con-sideration.
    My understanding of--or my assumption at this point of what has happened here is that Ms. Green set out to collapse 48 holes into 21, and did so regardless of the evidence that ex-isted in 1971, which I consider to be valid, in view of the fact that the uncertainty of 34 of the holes is in fact reflected in Mr. Stombaugh's notes.
Q  What you are telling me is that Ms. Green did an independent reconstruction of the holes with the probes, would you agree with that?
A  And I believe invalid.
Q  Now, are you telling us in fact that Ms. Green's chart is incorrect?
A  Well, yes.
Q  In what regard?
A  Well, going back again--
Q  (Interposing)  Are you going back to Stombaugh?
A  Absolutely.
Q  No; I am talking about what Green said she did and what she testified to doing.
A  I don't understand the significance of it.
Q  I will explain it to you.  My question is, did Ms. Green, in fact, take 21 probes and put them through the holes on that chart, as she has indicated she did?
A  Yes.
Q  Well, then, she did get the grouping that she testified to?
A  Yes; I consider that invalid, but she did get a grouping.
Q  Now, in other words, you are not in any position to tell us that you can't put 21 probes through those holes?

THE COURT:  Mr. Murtagh, I think this witness has said that about four or five times.  Ask him something else.

MR. MURTAGH:  Your Honor, in that regard, I would MOVE TO STRIKE that previous answer that Dr. Thornton made--

THE COURT:  (Interposing)  I think that answer can just be simply construed that he doesn't agree that what she did was correct.  And he has said that two or three times.

BY MR. MURTAGH:
Q  Dr. Thornton, with respect to this pajama top and stain area "A" and "B": did you examine the crime scene photographs?
A  Yes.
Q  Based upon that examination of the crime scene photographs, are you in any position to tell us, are the stain areas "A" and "B" on this sheet on the inside or the outside of the sheet?
A  No.
Q  Could they have been on the inside, then?
A  I have no way of telling.  I have examined the photographs very carefully.  The resolution and lack of clarity of the folds would not permit any conclusion to be drawn, as far as loca-tions of "A" and "B."
Q  Okay; now, with regard to your testimony about the amount of force or pressure which Mr. Segal neglected to ask you about yesterday, I believe you said something like two pounds?
A  In connection with--
Q  (Interposing)  "A" and "B."
A  Yes; I think "B" could easily have resulted from just a few ounces.
Q  What are we talking about in terms of pounds?  Are we talking about pounds per square inch or total weight?
A  Total weight.
Q  Have you weighed this pajama top?
A  No.
Q  Would you agree or disagree that it does not weigh two pounds?
A  Oh, yes; it does not weigh two pounds.

MR. MURTAGH:  No further questions.

MR. SEGAL:  I have no questions of substance--just permission to have the witness identify the two items referred to, Your Honor, as an exhibit by the Government.

MR. MURTAGH:  Please, please, go ahead.


R E D I R E C T  E X A M I N A T I O N  11:43 a.m.

MR. SEGAL:  Your Honor, let me exhibit D-69 to Dr. Thornton, and tell us what this is, Dr. Thornton?

THE WITNESS:  This is the flower pot that I found on the slat table on the scene at 544 Cas-tle Drive.

BY MR. SEGAL:
Q  Would you identify what D-70 is, please?
A  This is a reconstruction of the broken pieces of the flower pot that were found to the north and somewhat to the west of the end of the coffee table that is pieced together with tape.
    There are two additional fragments that I did not fit in; but I could see that they did fit, but they are so minute that they don't stick in the tape very well.
Q  You were the person who did the reconstruction, then?
A  Yes.

MR. SEGAL:  I have nothing further.

(Government Exhibits 69 and 70 were marked for identification.)

THE COURT:  All right; call your next witness.

MR. SEGAL:  Dr. Thornton, you may be excused.

(Witness excused.)

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