Article 32 Hearing
Volume 1

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(This session was called to order at 0910 hours, 6 July 1970.)

COLONEL ROCK:  This Article 32 investigation will come to order.  Let the record reflect that the original session of this Article 32 investigation commenced at 1300 hours, 15 May 1970, at the Fort Bragg, North Carolina.  In attendance were myself, Colonel Rock, Captain Beale, my legal advisor, Captain Somers, counsel for the government, Captain Douthat, counsel for the accused, and the accused himself.
     Let the record also reflect that in attendance today are the same parties with the addition of the accused's retained civilian counsel, namely Mr. Segal, Mr. Eisman and Second Lieutenant Michael J. Malley.  For the benefit of the civilian counsel who are now present the record will reflect that a summarized record of the proceedings held on 15 May 1970 has been furnished to the defense.  The record will further reflect that the subsequent proceedings will be transcribed verbatim until the conclusion of this hearing by Mrs. Barbara Hodges, who is present.
     I wish to inform counsel for both sides that in accordance with paragraph 34 of the Manual for Courts-Martial I intend to conduct this hearing in a manner that is both fair and impartial, to review all the relevant and necessary evidence that either side may care to present, and, based on the evidence as presented, to make a recommendation to the appointing authority as to whether or not the evidence warrants a trial or any other appropriate action.
     For the interest of orderly administration of these proceedings counsel for the government will initially present his evidence.  During this procedure counsel for the accused will be given full opportunity to cross examine each government witness or to register objections to any and all evidence that they might deem to be not properly before this Article 32 investigating officer.
     I wish to at this time inquire as to the credentials of the additional accused's counsel who are present today for the first time.  Lt. Malley, are you qualified under the provisions of paragraph 27b of the Uniform Code of Military Justice?

LT. MALLEY:  Yes sir, I am.  I've been certified by The Judge Advocate General as qualified under the provision of that paragraph and I am a member of the bar of the state of Texas.

COLONEL ROCK:  Thank you.  Mr. Segal, what state are you authorized to practice law in?

MR. SEGAL:  I am admitted to the bar of the Supreme Court of Pennsylvania, Col Rock, and I am admitted to the bar of the Supreme Court of the United States.

COLONEL ROCK:  Are you licensed to practice before the highest court of that state?

MR. SEGAL:  Yes, I am.

COLONEL ROCK:  Thank you.  Mr. Eisman, in what state are you authorized to practice law?

MR. EISMAN:  I have been admitted before the bar of the Supreme Court of Pennsylvania.

COLONEL ROCK:  Are you licensed to practice before the highest court of that state?

MR. EISMAN:  Yes, I am.

COLONEL ROCK:  Thank you.  I would like to request that one counsel for the accused speak on behalf of the accused in any questioning of witnesses, or in presenting evidence for the accused.  If a deviation from this procedure is required, please address your request to me.
     Lastly, I wish to inform counsel for both sides that these hearings are open to the public at the specific request of the accused.  Is this correct, Mr. Segal?

MR. SEGAL:  That is correct, Col. Rock.  We have requested on behalf of Captain MacDonald this morning that these hearings be held in open fashion.

COLONEL ROCK:  They will be so held.  Then does either counsel have any comment or questions concerning these procedural matters?

CPT SOMERS:  None by the government.

MR. SEGAL:  Nothing at this time on behalf of the defendant, your honor.

COLONEL ROCK:  If not, counsel for the government will proceed.

CPT SOMERS:  Sir, if I may I would like at this time to outline briefly what the counsel for the government intends to present in the order in which I intend to present it.  To begin with I shall attempt to lay a chronological picture of the events of the morning of the 17th of February 1970.  To do so I shall start with a telephone operator from the telephone exchange downtown.  I shall then introduce testimony from several of the military police who went to 544 Castle Drive in response to this telephone call or telephone call.  I shall introduce then evidence of the identification of the persons who were in the residence and the medical testimony as to the pronouncement of death.  This will be followed by testimony as to the condition, the medical condition of Captain MacDonald, that morning from a doctor, perhaps two doctors, and one of the medics who saw him that morning.  I shall follow this with testimony from a medic and a Criminal Investigation Division agent as to the receiving of the bodies in the morgue and the taking of the evidence there.  This will be followed by testimony from the pathologist who conducted the autopsies on those bodies.  Following this testimony I will introduce testimony from the agent of the Criminal Investigation Division who are principally responsible for the investigation of this case.  They will testify regarding the preservation of the scene, the taking of the evidence at the scene and certain other matters which are relevant to the residence at 544 Castle Drive.  I will follow this with testimony of a neighbor who lives nearby as to possible identification of some of the weapons found on the scene.  This will be followed by testimony from another neighbor as to disturbances which did or didn't occur in that vicinity that evening.  I will follow up with another neighbor with similar testimony and intend to conclude with the testimony of a Federal Bureau of Investigation agent who took a statement from Doctor MacDonald on the 27th of February.  My first witness, sir, is a civilian, the lady from the telephone exchange, who is, as far as I know, not in the building at this moment, but who will be within minutes.

MR. SEGAL:  This might be an appropriate juncture, Colonel, to raise two matters based upon the government's outline of the case.  I note that the government indicated that regard to the condition of Captain MacDonald; they intend to call one or possibly two doctors.  We are apprised that at least of the physicians who the government most certainly intends to call is Doctor Straub, your honor, the radiologist.  We are of the opinion, based upon our investigation, sir, that there are several other physicians, one of them -- at least one of them -- is going away and will no longer be a member of the military service and will not be readily available to this court after possibly the next week or two.  It seems to me that, also based upon our investigation, one witness physician that we are certain the government intends to call may not be the person who has the most pertinent information with regard to that question.  We would therefore suggest it is appropriate at this time to consider making arrangements at the earliest possible time to take the testimony of the other physician because of these problems I've indicated.  Secondly, sir, in regard to the statement by counsel for the government, that it intends to call an FBI agent, I wish to advise the court that as of late last week that agent was not available for interview by counsel for the defense because he stated to counsel for the defense that he has not been given authorization by the Federal Bureau of Investigation in Washington to testify or appear in these proceedings on behalf of either party, and that therefore he led us to believe at that time he was not available to the government.  Now if the government intends to call him, I would suggest that it is appropriate that the clearance be obtained at the earliest time, so that he may also be interviewed by the defense prior to the time of his being called.  Otherwise it might necessitate a needless delay and I would like to avoid that at all cost, sir.

COLONEL ROCK:  Would you care to address the business on the doctors?

CPT SOMERS:  Yes, sir.  The government intends to call Doctor Straub, certainly.  It also will probably call a Doctor Jacobson.  There are several other physicians who could conceivably be called but the government doesn't feel that are relevant to the case.  If the defense wishes to make these witnesses available as its own, the government will be happy to see what it can do to facilitate this.  Now insofar as the FBI agent is concerned, if you wish me to address that --

COLONEL ROCK:  Please do.

CPT SOMERS:  The FBI agent has in fact been made available to testify at these Article 32 proceedings on behalf of the government.  I have personally received a phone call -- I believe it was Thursday of last week -- from the FBI agent, who stated simply that he could not talk to the defense until he had been given clearance by his superiors.  I will today contact the US Attorney, Mr. Coolidge, and attempt to acquire for the defense this clearance.

COLONEL ROCK:  I think that the answers by the government are satisfactory in both respects.  In the event you have difficulty in obtaining the support of the agent for the accused, the FBI agent, please inform me at the earliest moment.

CPT SOMERS:  I will, sir.  If you will excuse me just one moment, I will check on the status of my civilian witness.

COLONEL ROCK:  Let us know soonest.

CPT SOMERS:  Sir, if I may, I suggest we take a five minute break in place and I will then have this witness.

COLONEL ROCK:  We will recess for five minutes.

(The hearing recessed at 0925 hours, 6 July 1970.)

(The hearing opened at 0945 hours, 6 July 1970.)

COLONEL ROCK:  The hearing will come to order.

(Miss Carolyn Landen was called as a witness by the government, was sworn, and testified as follows.)

Questions by CPT SOMERS:
Q  Ma'am, would you state your full name?
A  Carolyn Landen.
Q  Your address?
A  2609 Downs Place, Fayetteville, North Carolina.
Q  And what is your occupation, please?
A  Group Chief Operator with Carolina Telephone Company.
Q  Were you occupied in this position on the evening of 16 and 17 February of this year?
A  Yes, sir.
Q  Did you have an emergency call that night?
A  Yes, sir.
Q  Would you tell us when this call came in?
A  About 3:40.
Q  And how did it come to your attention?
A  Well, the operator had answered the signal and she was having difficulty hearing the party.

MR. SEGAL:  I am having difficulty hearing you.

COLONEL ROCK:  Would you keep your voice up, please.

A  Yes, The operator had answered the signal and she could not get the customer to talk, so she called me to help her with the call.
Q  At the time that she called you, was this customer on the line?
A  I don't know.  He was not talking.
Q  What happened when you were called?  What did you do then?
A  Well, I has asked her what happened and the MP's was on the line.  So the information she gave me I related the information to the MP's.
Q  And what happened next? Did you monitor that line?
A  Yes.
Q  And did you hear anything else on that line?
A  Well, about -- a few minutes later, the customer came back to the line and he kept repeating his address.
Q  What was that address?
A  544 Castle Drive.
Q  And did he say anything else?
A  He said what I understood him to say, I don't know for sure if this was right because he said in a faint voice -- that he had been stabbed.
Q  I see.  What did you do when he came back on the line?
A  I immediately called the MP's again and gave them this information because he said they were sending a car out, but we weren't too sure what had happened before, and so I called them back and told them the address was correct and what had happened.
Q  Did you monitor that line at all after that?
A  Yes, I did.
Q  What happened then?
A  Well, the MP's and I both stayed on the line.  I did not hear the customer any more, and we stayed there until the MP's were notified that the call -- the car had already got to the address.  Then I released the MP's.
Q  I see.  Now, how long was it between 3:40, the time that you said the call originally came in, and the time that the customer seemed to be back on the line and you heard him?
A  Well, it could not have been over two minutes.  It could have been a few seconds later than two minutes, but not over two minutes
Q  Your estimate is in the vicinity of two minutes?
A  Yes, sir.
Q  Now, can you tell if the line is hung up from the other end?
A  Yes.
Q  How do you tell this?
A  We have lights in our positions showing when he hangs up, what we call disconnects.
Q  Did you at anytime, from 3:40 on until you left that day receive a disconnect from that number?
A  No, sir.

CPT SOMERS:  I have no further questions.

Questions by MR. SEGAL:
Q  Is it Miss Landen?
A  Yes.
Q  May I ask the name of the operator who originally called this message to your attention?
A  A Mrs. Carolyn Goldman.
Q  G-o-l-d-m-a-n?
A  That's right.
Q  And is Mrs. Goldman still an operator with the Carolina --
A  She's on leave from the telephone company.
Q  Is she still in the Fayetteville area?
A  As far as I know.
Q  Do you know what the nature of her leave is?
A  She is on maternity leave.
Q  Miss Landen, may I ask how you determined that you received this call at 3:40?
A  Well, when the operator answers a signal, and it is an emergency call, she connects the customer and immediately she times or stamps a ticket which shows the face on the clock.  It has the minute and the hour hand on it.  I was at the position when she stamped it and I seen her when she stamped it.  I also looked at the clock myself.
Q  Do I understand that the position at which you were working was right next to or close by Mrs. Goldman that you were able to see this, what you are describing now?
A  Yes.  She was as near to me as this table is here.
Q  About six feet away?
A  I would say.
Q  How is it that you happened to see the time if you were that far away?
A  We have clocks all around on the wall, and also each position, there is a clock in the center.
Q  Have you ever had occasion to see the particular card that was punched on that emergency call since the morning of 17 February?
A  Yes, sir.
Q  Do you remember the last time you saw that card?
A  Last week.
Q  And may I ask where it was that you saw the card and who showed it to you?
A  It is in our office, the manager has it in our office.
Q  And the name of the manager who had the card at this time -- so that we might also have an opportunity to see it?
A  Mr. Daniels.
Q  Mr. Daniels?
A  Yes.
Q  And what is Mr. Daniels' first name?
A  Dorsey.  He's here this morning.
Q  How did you have occasion to note the time when you, yourself, finally disconnected this call, or when the call was disconnected from the customer's house?
A  No, sir.  When I left at seven o'clock the connection was still open.  We had not received a disconnect.
Q  Then from the time, 3:40 until you went off duty that line remained open?
A  Yes.
Q  Now when you first had this call brought to your attention by Mrs. Goldman, what did you hear?  What did you do?
A  I immediately asked her what was wrong, what he had said to her, and she gave me the information which I passed on to the MP's.
Q  Did you call the MP's on a separate line?
A  No, the MP's were already on the line.  She had already dialed the MP's up.
Q  In other words, she had two lines open at the same time -- one for the customer's calling in and one from the call that she had placed herself to the military police?
A  Well, it was on the same connection, yes.
Q  Was she trying to patch these two calls together?  In other words, was she trying to connect the customer directly into --
A  Yes.
Q  Had she succeeded in doing that?
A  Yes.
Q  At any time while these two calls were patched together, did the customer have occasion to speak or say anything?
A  At the time he came back on the line the second time, he was talking when I got the MP's on the line, but I don't think the MP's could hear what was said because it was in such a faint voice, but I could barely hear myself.
Q  When you say the voice was faint, was it because of a poor connection, or some other mechanical difficulty, or was it because the person himself was speaking in a very faint voice?
A  It had nothing to do with the connection.
Q  In other words, the connection was adequate; the person who was speaking was speaking in a weak or faint voice.
A  Yes.
Q  Is it fair to characterize the voice in that fashion -- either faint or weak?
A  Yes, sir.
Q  If you, please, speak in the first person, that is the same way as the customer spoke to you, would you repeat the words as if you were the customer, as you were able to make out on the telephone that morning?
A  Well, when he came back on the line the second time, the only thing he said then was the address, 544 Castle Drive, and he repeated it several times, and then I asked him what was wrong.
Q  And now speak as he spoke to you, please, the words as best as you recall.
A  When I asked him what was wrong; he said he had been stabbed.
Q  Did he say I or --
A  I don't know if he said I or what, the only thing I could hear was "have been stabbed."  I can't say "I" or what.
Q  And did he say that more than once?
A  No, sir.
Q  Was there anything else that he said other than the address and that he had been stabbed that you can recall at this time?
A  No, that was all he said, all that I could hear he said, or anything else, I didn't hear.
Q  Was there other sounds coming from the phone from the customer's house?
A  No, sir.
Q  Could you hear anything else at all coming from the customer's phone?
A  No, sir.
Q  Is it fair to say there was a rather lengthy period of silence after you say you hear the next sound coming from the customer's phone?
A  You mean from the time he called the operator and the time I heard him talk?
Q  Right.
A  Yes, there was silence.
Q  About how much time elapsed from the time that Mrs. Goldman answered the call until you got on?
A  As soon as she answered the call and connected with the MP's she called me, which could not have been over a minute.
Q  And then you say you spoke to the customer and what did you actually do after you spoke to the customer?
A  After I spoke to him?  Well, I had already dialed the MP's number and when they answered I gave them the information.
Q  I'm not sure I understand why you dialed the MP's number.  I thought that Mrs. Goldman had also called that number.
A  Because the MP's did not think it was very serious, I don't believe, the first time, because he said we will send out a car.  You see, the customer had asked for the MP's and an ambulance sent to that address.
Q  Excuse me.  That was the message given Mrs. Goldman?
A  Yes.
Q  So when you --
A  When I called them, the first time I called them to tell them what had happened, the MP's said we will send out a car because he didn't know what was wrong, and he didn't want to send out an ambulance.  So when I found out he had been stabbed, or what I thought he said he had been stabbed then I called the MP's back and told them that on the emergency to 544 Castle Drive we think maybe he might have been stabbed, is what we understood him to say.  I figured he would probably send an ambulance along too.
Q  What was the response of the military policeman as to you spoke to him on the second call?
A  He told me then that a car was on its way; we stayed on the line together until the MP's got there.
Q  You say "we".  You and Mrs. Goldman?
A  No the operator was not on the line anymore after she called me, and I relayed the message to the MP's the first time.  She got busy and went on to another position.
Q  Who was on the line with you then?
A  The MP's at the MP desk.
Q  All right, now how long thereafter did you hear any sound or communication coming from the customer's phone?
A  You mean from the time that I took over?
Q  Yes.
A  Well, it couldn't have been over two minutes from the time that she called me to the time that I heard him speak.
Q  Now I am talking about after that.  You made a report to the MP's that you think it was a stabbing and you stayed on the line and the military policeman stays on the line.  About how much time then elapsed between this until you heard some kind of sound coming from the customer's phone?
A  I can't say for sure but I don't think it was over fifteen minutes, whenever he said the MP's are there, and I could hear moving around in the background, so to speak.
Q  Who said the MP's are here?
A  The Sergeant at the MP desk, the one I was talking to.
Q  Speaking to you, said that the MP's are now at the address?
A  Yes.
Q  And did you in fact hear something coming from the customer's phone to confirm his statement?
A  I just heard moving around.  I didn't hear anything or what was going on.  So I couldn't say for certain that they were there other than what the MP Sergeant was telling me.
Q  But you did hear what you gathered as people moving around inside the customer's location, and prior to the MP telling you that they were at the Castle Street address, you had not heard any sounds.
A  That's right.
Q  So I assume at that time you then concluded the fact that must be the MP's or a car that he had sent?
A  Yes, sir.
Q  I gather, Miss Landen, that you feel that there was about fifteen minutes after you had originally gotten involved in the telephone call?
A  I remember looking at the clock at one time and it was about five minutes to four then, so it ended very shortly thereafter, then he told me they were there, so it could not have been fifteen minutes I don't believe.
Q  It was five minutes of four when you were talking to the military policeman?
A  When he said they're there, so I don't think it could have been over fifteen minutes.  Of course it seemed longer than that, but I'm not sure about the time either.
Q  Miss Landen, at any time did any of the military policemen that you had occasion to speak to that morning on the phone say something about the correctness of the address that had been given to them by the operator or yourself?
A  When I called the second time it seemed that they were having a hard time trying to find the address, and he said something about he was not to sure.  I said, well, I am sure that's what he said because I heard him myself, the address, and shortly after that was when the MP's were there.
Q  May I ask you what caused you to form the impression that they were having a hard time finding 544 Castle Drive.
A  I could hear the MP Sergeant saying something to someone there in the room with him, I guess the guy that was on the radio or something.  I don't know, but -- he didn't say there was no address like that, but from what they were saying, and then he asked me something about was I sure -- something about the address.  I can't remember all that happened, but I remember saying to him, I am sure that's what he said.
Q  Is it fair to say that your impression was that there was some confusion at the MP dispatch headquarters about where they were supposed to send the vehicle to investigate?
A  Well, I don't know if they were confused about -- I don't think they were confused about what I said the address was, but maybe they were just having a hard time locating Castle Drive -- I don't know.

MR. SEGAL:  I have no further questions.  Thank you so much.

CPT SOMERS:  No further questions.

COLONEL ROCK:  I think it might be well for clarity of the record for you to direct questions to the witness relative to why the operator in Fayetteville was called rather than the operator on post, the fact that there are two separate phone systems in that area.

Questions by CPT SOMERS:
Q  Do you know, Miss Landen, why someone calling from 544 Castle Drive would get the town operator?
A  He has a 497 number and when he dialed 0 they reach the Fayetteville operator.  He has a Fayetteville line.
Q  In other words, they are on the Fayetteville exchange as opposed to Fort Bragg exchange.
A  Right.

CPT SOMERS:  Fine.  No further questions.

COLONEL ROCK:  If there are no further questions by counsel for the government or the accused, the witness is excused.

CPT SOMERS:  None by the government.

MR. SEGAL:  Nothing further at this time, your honor.

COLONEL ROCK:  Thank you.

(The witness departed the hearing room.)