ARTICLE 32 HEARING TRANSCRIPTS
July 9, 1970: Sergeant Robert Duffy (MP) Continues
(The hearing reconvened at 1450 hours, 9 July 1970.)
COL ROCK: The investigation is now in session. Let the record reflect that we have returned from a visit to 544 Castle Drive and the persons who were present prior to the break for lunch at approximately 1220 hours are currently in the hearing room. I believe the counsel for the accused has the floor at this time, or had you turned it over?
MR. SEGAL: Yes, we have turned it over.
COL ROCK: I'm sorry, counsel, excuse me. Counsel for the government, proceed.
Questions by CPT SOMERS:
Q Sergeant Duffy, when you asked over the radio net whether you could set up a roadblock, were you told then not to set one up or to put it off right then?
MR. SEGAL: That's objected to.
CPT SOMERS: I am offering him alternatives and then asking what else he may have been told.
MR. SEGAL: I suggest that direct examination does not allow to place alternatives to the witness, but ask the witness to state the facts; that is the limitations to direct as opposed to cross.
CPT SOMERS: I think I am permitted to offer him several alternatives.
CPT BEALE: Counsel, your objection is overruled. You may continue.
A Sir, would you repeat the question?
Q Yes. When you asked over the radio network for permission to set up a roadblock, were you told not to do to it then, not to do it at all, to put it off for right then, or something different from all of this?
A I'd say I was told they couldn't tell me exactly when to set it up, but to stay in the vicinity just in case they got word.
Q Now you were asked, from one of the pictures, whether you saw a particular item. Let me, if I may, just show you the picture to facilitate this question. I show you Accused Exhibit A-6.
A This is a picture of a knife in the master bedroom.
Q You see the knife in this picture. Now, the defense asked about that knife and asked whether you saw it, and you answered that you didn't notice it. Now, are you saying that the knife was not there or that you didn't notice it there, or that you did look in that section, or what are you saying?
MR. SEGAL: I must object again to the forming of his question. I don't think it is proper in these type of questions which are purely susceptible as being responded to by the witness, to place alternatives, because it helps make up the witness' answers, and that is not a proper fashion for redirect examination for a witness whose knowledge is obviously within his own personal view. He doesn't have to be suggested possible alternatives.
CPT BEALE: I might suggest probably the best thing for you to do is to direct a question to the witness one at a time with each alternative framed in the question, if that's the way you desire to do it.
Q All right, again directing your attention to that knife, and your answer to the defense, did you intend by your answer to say that the knife was there and could not be there?
A No, sir, it is just that I didn't notice the knife being there at the time.
Q I see. Mr. Defense Counsel, could I see the statement to which you have been referring?
(CPT Somers was handed a document by Mr. Segal.)
CPT SOMERS: If I might ask the indulgence of the investigating officer for just a moment.
COL ROCK: Surely.
MR. SEGAL: May the record reflect, sir, that counsel for the accused has given to counsel for the government a copy of a statement which has been referred to previously in cross examination of Sergeant Duffy as the statement that was taken by Captain Douthat on behalf of the accused, and which this witness has read and says it represents what he told Captain Douthat.
COL ROCK: Affirmative, the record will so indicate.
Q Sergeant Duffy, have I ever at anytime attempted to make you testify in any way untruthfully?
MR. SEGAL: That's objected to, sir.
CPT BEALE: Sustained.
Q Have you testified here as truthfully as you possibly can?
MR. SEGAL: That is objected to as presumed the witness has testified to the best of his knowledge.
CPT BEALE: Sustained.
CPT SOMERS: No further questions.
Questions by MR. SEGAL:
Q Sergeant Duffy, just one brief matter. Did you ever receive a radio call back to your request for authorization to establish a road block on Route 87?
A No, sir, I didn't.
MR. SEGAL: That's all.
COL ROCK: I have two questions. Did you at anytime, while in the bedroom, master bedroom, go to either the body of Mrs. MacDonald or to Captain MacDonald? Did you approach their bodies? Did you assist Captain MacDonald or get near either of the bodies?
WITNESS: No, sir.
COL ROCK: You have seen this exhibit A-6, which I now have in my hand?
WITNESS: Yes, sir, that's correct.
COL ROCK: Judging from the position of where you were standing, and observing, do you think it is logical that you would have seen such a small object as that?
WITNESS: No, sir, I wasn't standing from a position like that.
COL ROCK: Did you ever, at anytime, enter the living room?
WITNESS: No, sir.
COL ROCK: I have no further questions. Does -- did you notice whether any lights were on in either the outside front of the house, or in the outside rear of the house?
WITNESS: Sir, I'm pretty sure the lights -- I'm pretty sure, I'm not too sure -- but at the front there was a light on that night because that's where I got mixed up on the reflections from the MP helmet liners.
COL ROCK: But you are not sure about the back light?
WITNESS: When I went around the back, sir, it wasn't dark or nothing. I mean maybe there was a light from another building, but it wasn't dark at the back doorway as I walked in.
COL ROCK: When you made your search, I believe you said around 0430 in the morning, what were the weather conditions at that time?
WITNESS: Sir, it was cold and rainy.
COL ROCK: Did you personally have a flashlight to use?
WITNESS: Sir, I can't remember if I had a flashlight then when I was searching, but it required MP duty that you --
COL ROCK: I am asking just about that time. Do you remember having a flashlight to use at the time of your search?
WITNESS: I can't remember that, sir.
COL ROCK: I have no further questions. Any further questions by either counsel?
MR. SEGAL: Yes, sir, if I may.
Questions by MR. SEGAL:
Q Sergeant Duffy, do you recall when MP Jackson called your attention to the ice pick, did you have his flashlight at that time?
A Sir, I cannot recall.
MR. SEGAL: That's all.
CPT SOMERS: Nothing further by the government.
COL ROCK: I wish to advise you, Sergeant Duffy, that you are not to discuss your testimony with any individual outside this courtroom other than counsel for the accused or counsel for the government. Do you understand?
WITNESS: Yes, sir.
COL ROCK: Now you are excused, subject to recall.
WITNESS: Yes, sir.
(The witness saluted the IO and departed the hearing room.)
COL ROCK: At this time I'd like to request from counsel for the government whether you have any information relative to the additional photographs about which the counsel for the accused inquired this morning?
CPT SOMERS: I have those photographs.
COL ROCK: You do have them. Are counsel still interested in those photographs?
MR. SEGAL: Yes, sir.
COL ROCK: I'd like to make those available to counsel for the accused.
CPT SOMERS: Sir, I have only one set and I do intend to use them in the government's case. I will be glad to show them to them.
COL ROCK: And they will be presented in due course?
CPT SOMERS: Yes, sir, I intent to present them here.
COL ROCK: If you will, please, allow counsel for the accused to look at the photographs and we can take -- what would you figure? How many photographs are there?
CPT SOMERS: Three, sir.
COL ROCK: Would you figure a ten minute recess would be appropriate?
MR. SEGAL: That would be more than adequate, sir.
COL ROCK: We will recess for ten minutes.
(The hearing recessed at 1505 hours, 9 July 1970.)
(The hearing reopened at 1513 hours, 9 July 1970.)
COL ROCK: The hearing will be open. Let the record reflect that all parties present at the close are in the hearing room. Proceed, counsel.
MR. SEGAL: I would like the record to show, sir, that during the recess that was granted by the investigating officer, the government handed to counsel for the accused three black and white 8 ½ by 11, glossy photographs which would appear to be photographs taken outside the MacDonald house, apparently in the evening or early morning hours. There are two requests I want to make in regard to these. First of all, sir, I would ask the government to identify for us the name of the photographer who took these, and if the government knows, the time and date the photographs were taken. Secondly, sir, I would inquire at this time as to whether the government has any other photographs of the outside of the MacDonald house that was taken on February 17th or February 18th, 1970, because on examination of these photographs, while the investigating officer has not seen them possibly as yet, it seems to me that these will not necessarily assist in clearing up all the questions in regard to the alleged items of physical evidence that were found outside, and I think this would be a useful juncture in which we should determine ultimately what we are going to have in the way of outside photographs.
COL ROCK: Let me address the first point first. Does the government have the information relative to the date and time the photographs were taken and by whom?
CPT SOMERS: The photographs were taken on the morning of the 17th of February 1970. By whom I am not certain at this point.
COL ROCK: Are there any more photographs of the outside of the house?
CPT SOMERS: Sir, the files in this case are voluminous. I have not seen all the files in this case and I do not know the answer to that question one way or the other.
COL ROCK: May I see those photographs, please?
(The photographs in question were handed to the IO.)
COL ROCK: Captain Somers, do you know whether there is in existence a photograph showing the alleged location of the stick that has been discussed?
CPT SOMERS: I do know that there is no such photograph.
COL ROCK: Counsel for the accused, I think that at the present time that these are all the photographs pertaining to what we have discussed thus far and I would like to proceed.
MR. SEGAL: May I just state one thing, Colonel Rock. That is I want to make a representation to this hearing that on the basis of our investigation on behalf of the accused in this case, we have very strong reason to believe that a photographer from the investigation laboratory at Fort Gordon, Georgia, was present on the morning of the 17th and took a substantial number of pictures of the exterior of this building; that there even exists a photograph showing the government's photographers at work. I would further represent, sir, that it is so elementary in criminal investigation to have had exterior photographs of the building where weapons were found outside that may be relative to the crime, and where the existence of activities of various persons may have left the outside, it is inconceivable to me, sir, the government at this juncture had made available the photographs of the scene which will be useful to this investigation. I am particularly troubled, sir, and I will state it to you at this time, that the photographs that were handed to us do not establish my point of reference which regard, for instance, to any clearly visible portion of the house that we have been dealing with, particularly there's no photograph here which establishes the relationship of this bush to the rear door of the house, and I submit to you, sir, that there is an obvious connection here that ought to be explored, and the government is aware of, I just feel, at this time, that there can't be any possible valid reason for the delaying in making available to this inquiry those photographs for the exterior of the house, and particularly the side and the rear, and that while I don't propose to delay any more this afternoon, I would really sincerely urge upon the inquiry that a direction be given to counsel for the government to perhaps pursue further with the authorities at the investigation lab at Fort Gordon, whether they do not have available additional black and white photographs of the exterior of the house that could be presented to this court next week, when certain laboratory technicians will be here. At this time, as I said, I cannot envision any prejudice to the government, and I think it will substantially expedite the inquiry in this matter.
CPT SOMERS: Sir, I do not represent to you that there are no other photographs available of the outside of the house. I could not say that if I wanted to, because I don't know what else there may be. I know a good deal of what's in this case. I cannot represent to know everything in it. I have shown counsel for the defense three pictures in question, pictures of the weapons. Those are the only pictures -- I've described them as weapons -- they have been used as such. They may or may not have been used that way, but those are the only pictures that I am aware of showing these objects. Now, the government does intend to present a case and try to make it clear the placement of the weapons and any other point which at least it deems to be critical in this case, so it would appreciate the opportunity to do so before being judged by the defense as to whether or not what we have done is adequate.
MR. SEGAL: I don't want to prolong the discussion, Colonel Rock. I just want to say to you that it is not my understanding, first of all, I only request of the hearing -- investigating officer, the investigating officer's direction to the government's counsel to produce only the photographs of the alleged weapons. It was my understanding that what we were discussing was the production of photographs of the outside of this house, which will be relevant to our understanding of what took place on the back of the location of the shrubbery here, and so that we might understand what were the possibilities that were available to the investigators, and whatever facts the investigators will be testifying to that were possibly be made more clear by reference to the photographs. I do not understand that the investigating officer was giving to the government the right to pick and chose which photographs he would present, but we would have the black and white photographs showing the external portion described and they would be then used to refer to as needed in this case.
COL ROCK: At this juncture, Mr. Segal, I am satisfied that we have represented here in these photographs what is germane to what has been covered at this juncture, and I would like to proceed.
CPT SOMERS: If I may, sir, I would like to recover those three photographs before I do proceed. Let the record reflect that I have now taken the three photographs in question.
CPT SOMERS: The government's next witness is Specialist Four Morris.