May 7, 1975
United States District Court
Eastern District of North Carolina
Excerpts from Hearing Upon Motions of Defendant Before the Honorable Franklin T. Dupree, re: Discovery and Inspection of Documents
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DISTRICT OF NORTH CAROLINA
|UNITED STATES OF AMERICA, plaintiff||:|
|VS.||:||Criminal No. 75-26-CR-3|
|JEFFREY R. MACDONALD, defendant||:|
FOR THE GOVERNMENT:
JAMES T. STROUD, JR., ESQ.
VICTOR C. WOERHEIDE, ESQ.
BRIAN M. MURTAGH, ESQ.
FOR THE DEFENDANT:
BERNARD L. SEGAL, ESQ.
DURANT WILLIAMS ESCOTT, ESQ.
MAY 7, 1975
AT RALEIGH, NORTH CAROLINA
FOR THE GOVERNMENT:
JAMES T. STROUD, JR., ESQ.
VICTOR C. WOERHEIDE, ESQ.
BRIAN M. MURTAGH, ESQ.
FOR THE DEFENDANT:
BERNARD L. SEGAL, ESQ.
DURANT WILLIAMS ESCOTT, ESQ.
MAY 7, 1975
AT RALEIGH, NORTH CAROLINA
|PRETRIAL CONFERENCE (IN CHAMBERS) . . . . . . .||530|
|Transfer (21(b)) . . . . . . . . . . . . . . . . . . . . . . . . .||31352|
|Offer of Admissions . . . . . . . . . . . . . . . . . . . . . . .||7390|
|Def. Argument . . . . . . . . . . . . . . . . . . . . . . . . . .||90165, 184196,|
|Gov. Argument . . . . . . . . . . . . . . . . . . . . . . . . . .||166184, 196202,|
|Michael J. Malley . . . . . . . . . . . . . . . . . . . . . . . .||3443|
|Direct Examination . . . . . . . . . . . . . . . . . . . . . .||3438|
|Cross Examination . . . . . . . . . . . . . . . . . . . . . .||3843|
|Jeffrey R. MacDonald . . . . . . . . . . . . . . . . . . . . .||209226|
|Direct Examination . . . . . . . . . . . . . . . . . . . . . . .||209215|
|Cross Examination . . . . . . . . . . . . . . . . . . . . . . .||215224|
|Redirect Examination . . . . . . . . . . . . . . . . . . . . .||224225(a)|
|Recross Examination . . . . . . . . . . . . . . . . . . . . . .||225(a)226|
|Transfer (21(a)) . . . . . . . . . . . . . . . . . . . . . . . . .||234328|
|Def. Argument . . . . . . . . . . . . . . . . . . . . . . . . . .||245284, 308319|
|Gov. Argument . . . . . . . . . . . . . . . . . . . . . . . . . .||284308, 319328|
|Grand Jury Testimony . . . . . . . . . . . . . . . . . . . . .||353408|
|Def. Argument . . . . . . . . . . . . . . . . . . . . . . . . . .||353361, 362391,|
|Gov. Argument . . . . . . . . . . . . . . . . . . . . . . . . . .||361362, 391398|
|To Inspect Documents . . . . . . . . . . . . . . . . . . . . .||409447|
|Def. Argument . . . . . . . . . . . . . . . . . . . . . . . . . .||409442 (480481)|
|Gov. Argument. . . . . . . . . . . . . . . . . . . . . . . . . .||442447|
|To Discover Grand Jury Composition . . . . . . . . . . .||449457|
|Def. Argument . . . . . . . . . . . . . . . . . . . . . . . . . .||449457 (546547)|
|Gov. Argument . . . . . . . . . . . . . . . . . . . . . . . . . .||545|
|DEFENDANT'S MOTIONS (CONTINUED)|
|Re Defective Grand Jury Proceedings|
|and Prosecutorial Misconduct . . . . . . . . . . . . . . . .||457476|
|Def. Argument . . . . . . . . . . . . . . . . . . . . . . . . . .||457471|
|Gov. Argument . . . . . . . . . . . . . . . . . . . . . . . . . .||471473|
|Jeffrey R. MacDonald|
|(Transcript filed 3 July 1975)|
|Re Double Jeopardy . . . . . . . . . . . . . . . . . . . . . .||483524|
|Def. Argument . . . . . . . . . . . . . . . . . . . . . . . . . .||483512, 519524|
|Gov. Argument . . . . . . . . . . . . . . . . . . . . . . . . . .||512519|
|To Suppress Evidence . . . . . . . . . . . . . . . . . . . . .||525545|
|Def. Argument . . . . . . . . . . . . . . . . . . . . . . . . . .||525536, 542545|
|Gov. Argument . . . . . . . . . . . . . . . . . . . . . . . . . .||536542|
|For Speedy Trial . . . . . . . . . . . . . . . . . . . . . . . . .||547586|
|Def. Argument . . . . . . . . . . . . . . . . . . . . . . . . . .||547575, 580586|
|Gov. Argument . . . . . . . . . . . . . . . . . . . . . . . . . .||575580|
|For Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . .||447449|
|Def. Argument . . . . . . . . . . . . . . . . . . . . . . . . . .||447449|
|Under Rule 6(e)|
|Gov. Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . .||473|
|DEFENDANT'S EXHIBIT SPACE|
|1 -Balance Sheet . . . . . . . . . . . . . . . . . . . . . . . .||32|
|2 -Statement of Income, Assets . . . . . . . . . . . . . .||32|
|3 -Statement of Comparative Costs of Trial . . . . . .||33|
|4 -Report, Article 32 . . . . . . . . . . . . . . . . . . . . . .||33|
|5,6, 7 - Affidavits Morgan, Bach, O'Quinn . . . . . . .||69|
|8,9, 10, 11, 12 - Telegrams . . . . . . . . . . . . . . . . .||194|
|13 -17 - Newspaper Articles . . . . . . . . . . . . . . . . .||235|
|18 -33 - Newspaper Articles . . . . . . . . . . . . . . . .||236|
|34-48 - Newspaper Articles . . . . . . . . . . . . . . . . .||237|
|49-Newspaper Article . . . . . . . . . . . . . . . . . . . . .||242|
|50-Newspaper Article . . . . . . . . . . . . . . . . . . . . .||243|
|51-Newspaper Article . . . . . . . . . . . . . . . . . . . . .||243|
|52-Partial Transcript of Jan. 29-30, 1975 . . . . . . . .||243|
|53-Newspaper Article . . . . . . . . . . . . . . . . . . . . .||317|
|54-Newspaper Article . . . . . . . . . . . . . . . . . . . . .||345|
|55-Telegram . . . . . . . . . . . . . . . . . . . . . . . . . . .||345|
|56-Newspaper Article . . . . . . . . . . . . . . . . . . . . .||349|
|57-Affidavit of Costs . . . . . . . . . . . . . . . . . . . . . .||480|
|58,59, 60 - Envelopes . . . . . . . . . . . . . . . . . . . . .||527|
|61- Telegram . . . . . . . . . . . . . . . . . . . . . . . . . . .||551|
I have nothing further on this motion, your Honor.
THE COURT: All right. You may proceed to your next one.
MR. SEGAL: May I ask the return of the report unless the Court would like to have it marked?
(Document returned to defense counsel)
MR. SEGAL: Your Honor, this motion before the Court now is a motion to discover and inspect documents, under Federal Rule 16.
In Paragraph 3 of the motion, if your Honor pleases, found on page 2, the defendant requested to be given discovery of all statements, confessions, admissions, written or otherwise, made by him to the Government and to other persons, including one Alfred Kassab.
The Government answers in part that it will give to this defendant what it says are his relevant written statements, on page 1 of its response to that motion, your Honor, in the second paragraph, second line, they will give the defendant the relevant written or recorded statements made by defendant which are within its possession.
The utilization of that term by the Government troubles me enormously. To my knowledge, the Government has no statements. No interviews of the defendant were ever taken except in pursuance of the investigation or in connection with the case. It troubles me that counsel for the Government, not out of malice, your Honor, but simply out of lack of understanding what the defense would like to know, that its own client has said, they say, "It isn't relevant for them to know that he said it." I would ask your Honor to direct in this case that any statements which the Government should deem irrelevant, should be submitted to your Honor, in camera, for your inspection so that your Honor may decide whether in fact the determination made is a proper one. I don't think that is burdensome. It is a procedure that has been approved in other cases. It seems to me that if the Government simply doesn't want to even let me see the relevancy that this Court should pass upon them to assure itself that in perhaps a too restrictive view of relevance the Government has denied something even though it is attempting to oblige the request for discovery. We feel that is not an unreasonable request and we so move the Court to do so.
However, there is a more serious problem in the Government's admission, in their answer in paragraph 3, the Government says it will not agree to furnish the defendant reports by agents of the Government of their recollections and interpretations of prior conversations with this defendant when said agents were not taking notes of said conversations during said conversation.
Now, that is contrary to the stated case law on the subject. In a leading case which I wish to cite to your Honor at this time, the U. S. v. Fedderman, case; the District Court there, went into the most singularly definitive analysis of what the defendant is entitled to when you say statement under Rule 16(a)(1). The Court said in Fedderman:
"Statements encompass the following: anything in writing or recorded by or with knowledge of defendant therein he directly, impliedly or even remotely recites or recounts or mentions anything whatsoever having a bearing, no matter how slight, upon the crime charged, regardless of whether its nature may be construed as against his interest or exculpatory or capable of differing interpretations or even saturated with ambiguity. In short, the criterion is the equivalence in writing of what the defendant had to say, no matter how he said it with respect to the crime charged."
Now, in the case of United States v. Morrison, that is further explicated to include precisely what the Government wants to refuse here. U. S. V. Morrison is cited on page 8 of our brief, if your Honor pleases, 43 F.R.D. 516, Northern District of Illinois, 1967. The Court there got precisely to the issue:
"Discovery rules were not meant to be dealt with by avoidance, dealt with by sleight of hand, ... "
Statements mean what statements mean. And the Court said: "... the spirit of Rule 16(a)(1) could easily he evaded if the Government were able to conceal these reports from the defendant. Rule 16 is designed to liberalize the Court's powers in regard to the granting of pretrial discovery. Were we to deny a request for this material we can perceive a day when the government agents would make it their practice to summarize their interviews rather than reporting them verbatim in an effort to avoid discovery. The philosophy underlying the Rule 16, in our judgment, applies equally to verbatim reports and summaries thereof."
And what the Government has simply said, categorically, is that they will not give defendant reports of their recollections and interpretations of prior conversations. In other words, when the agents talked to defendant they simply went outside to their car and made notes and went directly back to the office and made notes of the conversation. But those they won't give to the defendant and when they get on the stand and attempt to offer it and they say, "How do you remember that?" "I went back to my office to write it down." "Well, how do you know you got it down correctly, you didn't do it verbatim." "Oh, I know I got it correct." And then the Government will be sitting there smugly, relying on that which it says doesn't fit under the definition of statement.
Your Honor, both Morrison and Fedderman make it clear that if the defendant has a right to statements at all, as it is so clearly set out by Rule 16(a), the Government can't play games and say, "Well, we won't give you the agent's impression." What does that mean? The agent writes down, "I interviewed MacDonald, I went back then to my office and I wrote it down." That is an impression of what he said. He didn't even put quotation marks around it.
As the Court commends to our attention here, we can perceive that such a practice proves the Government agency has a very interesting way of defeating the discovery rule on their own, by simply doing all reports without quotation marks and saying, "I didn't write it down; then I went outside and wrote it down thereafter, and you're not entitled to discovery."
Let me deal with Paragraph 5, your Honor, because Paragraph 5 is another request for the defendant's testimony before the Grand Jury, and the Government has in fact agreed to that so that is not any longer in dispute.
Next is IV. and numbered paragraphs 7 through 26 of the defendant's motion for general discovery.
Here in 7 through 26 the defendant has set out particularly and with specificity, based upon the knowledge that he has obtained from what the Government has told him directly in the Grand Jury that they had against him and what he has learned independent from the prior investigation and what he has learned since on his own resources, what the Government apparently has and he sets forth special demands for reports of examination of a list that I will not go over and state, your Honor, it speaks for itself. But I want to point out that the Government is giving only a partial response to that. All the requests, your Honor, the Government says or acknowledges, are quite specific as to what the defendant wants. They don't say that "We don't understand what you're looking for, we never heard of it in connection with the case." They know that we are accurately reflecting the general nature of the scientific evidence. What the Government says, however, is that they will only give the results, on page 2 of the Government's answer, your Honor.
"With regard to paragraphs 7 through 26 of defendant's motion the Government agrees to furnish defendant with copies of results or reports of the various tests that we are referring to. The Government does not agree to furnish notes, methodology nature and name of its physical examinations and scientific tests and experiments in connection with this case."
Without belaboring it, your Honor, I think I have explained in my prior argument in the motion for the Grand Jury testimony that in short, your Honor, it is our prior experience that these reports on their face, prima facie, are unlikely to give the defendant the second most important thing. It is obviously important to know what the Government's conclusion is. If I were to be asked to choose what additional fact would be given it is the kind of test that was performed, specifying a different area entirely.
For the marijuana in narcotic cases, there are listed in the Government's handbook the appropriate testing methodology issued by the Bureau of Narcotics and Dangerous Drugs, four tests for identifying marijuana. For the Government to say, "We used a Duquenois test," that would satisfy us. We would understand, we would use our own resources and realize what they should or should not have done. It is not burdensome, in fact it is limited, for them to tell us how they tested.
If the Court is to say, "No, Mr. Segal, you're not going to get the lab notes and other details," then we say we should be given something more than this simple, bare finding. We need to know the finding but we should know at least what the method is. It's no secret. All methods should be known to all reasonable researchers. The Government has no vested interest in the scientific piece of knowledge, to hide it from defendant. Why shouldn't defendant be able to know and test what the Government has done? We cannot change a test. They have the test, why should we not know what it is? It seems to me if we are to be limited in this regard we are unable to fathom why that singular additional piece of information and result should not be granted to us at this time. It would so far facilitate the defendant's preparation as to go along way toward minimizing trial delay.
There is one other trouble that I have with the Government's answer to 7 through 26, and that is in paragraph 2 the Government says it will give to the defendant those things, the reports, that are within its possession and custody or control, but does not include, interestingly, what it says it will do in the third paragraph of the response, that is, also obtain those things known to it by the exercise of its due diligence.
In comparing the two paragraphs, if your Honor pleases, why is it with regard to certain aspects, that is, the tests, the Government will only give what it has under its control. When we ask for photographs and diagrams, it is willing to give what it has under its control and by the exercise of due diligence it can obtain. It seems to me that the evasive nature of that answer -- and I trust it is inadvertent; the Government should know this is an important area -- suggests that there may have been private experts retained to perform certain of the tests for the Government, not Government employees, and who after either testimony for the Government or supplying data to the Government's lab technicians, retain their papers. The Government seems to be saying, "We won't obtain those things, which our exercise of due diligence would produce ordinarily which are in this category." So I would ask your Honor to rule in regard to the requests in 7 through 26 that not only they give us as a minimum what the Government says it will give us but two additional things: to at least if not more give us the methodology, and (2) to require the Government to also turn over those matters through their due diligence they could obtain. I find it terribly uncomfortable to see that kind of evasive answer. Those I think would provide very much of the help that we need.
In regard to Paragraph 28 of the defendant's request, your Honor, which is answered in the second full paragraph of the Government's response, page 2, here the Government does -- I think we are in a reasonable position here on both sides -- the Government has said it will not only supply those things under its possession, custody and control, but also those things that through their due diligence they can obtain. We appreciate that. We think that is an adequate response. But they also say that they will not give to us matters which we previously received at the Article 32 proceeding in 1970. That is a reasonable position to take but I only ask that they indicate in writing what it is they think we have previously received. There could be a misunderstanding on their part as to what they think was surrendered by the Government. A listing would be satisfactory and we would have no problem.
A very minor question I have is that the Government is going to give us these photographs and diagrams and sketches at defendant's expense. I don't know whether the Government is saying that they will bill us at some rate for the Government laboratory doing this or whether we will be given photographic negatives and we can just have our own persons do it. I would like to have some clarification of this. I am a little troubled, as a private practitioner that I have to pay the Government a dollar, for a Xerox of a single page when a dime machine is available, too. So I would appreciate some enlightenment on that subject.
With further regard to Paragraph 28 of our request in which we have asked to obtain architectural models that were prepared, this would essentially, I would think, your Honor, be a layout of the MacDonald home at the time of the incident that took place in the case. It is not clear to me that the Government, when it says that it does not have one now, is acknowledging that should they decide to have it later, would be willing to advise us. This is an ongoing request to give us a chance to know what's going on. Subject to that, we have nothing further on Paragraph 28.
In Paragraphs 31 - 34 of cur request, your Honor, here we have asked the names and addresses of witnesses who may have knowledge of the case and the Government has stated that it won't disclose the names of persons who have knowledge of facts of the case unless they are prospective witnesses. Now, here we have pleaded, your Honor, on pages 8 and 9, a very specific series of requests. This is unlike other cases. No reported case has ever said, has ever even indicated, that defendant's request for names have been turned down, when he specifically delineated the sources or types of lists of names he's referring to and something that did not require the Government to simply speculate what the defendant is looking for, because if you will note, one of the critical factors in the case is that following the crime in question, following the defendant giving a description to police of persons whom he could give some information as to their appearance, the Government seized a number of individuals for investigation as being possibly involved. Strangely enough, defendant was never called or taken to any of these lineups of these persons who were stopped by government agents in connection with this particular episode. There was a great deal of this that took place at Fort Bragg and there was a great deal of it that took place, according to the reports of the government agents, by local agencies nearby.
Now, it has troubled us enormously, your Honor, that we have never had a chance to see those persons and see in fact whether or not they fit the description. All we ask is simply the names of those persons who were placed in the lineup, we will do the rest of the investigation ourselves. We don't ask the Government to do anything more, to give us photographs or addresses or police records, just to give us the names of the persons and their last known address at the time, and we will carry that information forward.
Now, we ask the Government to tell us the names of the suspects in the case. It is clear from what the Government has said at the Article 32 proceeding that there were persons who were considered to be suspects; as a matter of fact, the very woman, your Honor, who was named by Colonel Rock in his report, Helena Stoeckley, it developed only through examination at the Article 32 proceedings, had been a suspect in connection with this case, and was released by the authorities who had her. All we ask are the names of those suspects. We ask the Government to do nothing more, not to give us its files or what they think about it, not their judgment, let us proceed with the investigation. There is no other way we can obtain that information.
THE COURT: You have one and you want the other four hundred and ninety-nine.
MR. SEGAL: Your Honor, I would think if there were that many that we would certainly be entitled to it, because there were a minimum of four persons involved in the commission of this crime and the assault upon Dr. MacDonald, and probably more, but we know of a minimum of four. We know that police acted on information, that they rounded up people. We produced in the case police drawings of the suspects based upon Dr. MacDonald's testimony. Yet we were denied any information regarding them.
Let me take one moment to say something that I really fault myself for not having said this. Do you realize that if the defendant in this case were still in the military today, that there would be actually no problem with anything we're talking about. Under the Uniform Code of Military Justice -- and it took place at the Article 32 -- defendant is entitled to take depositions of the Government's investigators under oath and in fact the depositions of Messrs. Ivory, Shaw and Grebner, pursuant to military discovery procedure, were taken. No opposition from the Government, they regularly do that. This information, if we'd known it existed at that time, we would have been able to depose these people about it, and if there had been a general court martial we would have been able to depose them further about it. And the Government, being bound by the decision of Colonel Rock and affirmed by higher authority in the case, the Government having released the defendant from custody and having authority to keep him in custody or keep him in the Army, rather, pending investigation; they didn't have to release him and could have kept him for five years or longer, as long as they wanted to investigate him, by letting him go, in a sense, has now snatched back his right to defend himself and certain discovery he would ask.
We have asked, for instance, your Honor, the names of the five hundred persons whom the CID investigators say they investigated in connection with this case. And by the way, the reason why it is imperative, your Honor, we don't ask to see a report of those things at this juncture -- I might like to see them, but I don't ask -- they said under oath they made five hundred investigations in two days. My mathematics tells me that there are people who have knowledge out there who lived right in that community on the night that this crime took place who were seen by the CID and whose names they do not know and they have no way of ascertaining who they were, they were given the most cursory interviews. We don't want the interviews if they will just tell us who they were because we have some reason to think they would be helpful and let us do our own leg work. Defendant specifically requests and there is a particular need.
We asked for the names of the 6,000 persons whom the Government investigators have stated were interviewed from February through August of 1970 from the commission of the crime through the portion of the Article 32 proceeding, not quite to the end of it. They said they did this and again with mathematics applied, how much effort was put into it or how little was put into it, how could they do that many people?
One of the points of this case, your Honor, an important point, is that the Government says the crime didn't happen the way the defendant says it happened, that they cannot find anywhere in that neighborhood, a rather large housing development at Fort Bragg, anyone who heard any of the disturbance that might have been expected, considering the nature of the crime. That is their theory articulated on a number of occasions. We have found already since the start of these proceedings, with very limited data, and with those people almost entirely gone from there, one additional person who totally demolishes that. But we cannot rest with that, your Honor. If there are other persons who lived there, they're among those persons. We cannot get their names. What does it serve the Government to deny us our chance to prove just exactly what they should be interested in themselves, the finding or the non-finding of persons with personal knowledge of whether there was a disturbance heard by people living close enough by who could corroborate or destroy the defendant's explanation.
Now, turning to paragraph (e) I want to correct what I trust is one of the very few typographical errors that I am responsible for, we have requested the names of the seven hundred persons and it says 70 and that was supposed to be 10; in other words 10, misread as 70 and then written out as seventy; that is 700 persons in ten countries for re-interview in the course of reinvestigation. Why is it important?
The Government alleges in its various answers that it attempted to conduct a full, thorough, reinvestigation of the crime beyond the hands of the original group of Army investigators; as a matter of fact, that is part of the investigation that the defendant gave to them a deposition to them about, voluntarily. He cooperated with their request for deposition. He says the Government advised him that they saw these persons that they believed had relevant knowledge, we don't say give us the relevant knowledge, we say give us the tools to do our job.
A terribly specific request, your Honor, one of the critical facts that was developed at the Article 32 proceeding was despite the fact that the military police authorities who came to the scene were advised of the nature of the group of persons who committed the assault upon Dr. MacDonald and his family, that the testimony at the Article 32 says that no road blocks were placed at the three principal roads on and off Fort Bragg until hours after the crime was reported, even though each of those places were fifteen minutes from the place of the crime, so that civilian persons who may have been involved in this crime, or others, may have been able to flee.
But this testimony which was given under oath conflicts with other statements that military police -- statements made by the Government's investigators, -- were placed promptly on road blocks. If that is so, then no further testimony need take place at the trial about the subject. We should not go into it because it would be simply pursuing an area in which there is evidence to the contrary. All we ask the Government to do is give us the names of the military policemen, their police officers, who were placed on roadblocks. We will find them, we will talk to them, then if they'll give us statements, fine, we'll prepare. There is no possible question here that the Government does this dozens of times, it is a critical factor. I will say to your Honor that in my judgment, the revelation on the first morning of this particular Article 32 proceeding the Government did not, because of the inaptitude of the principal investigators initially, place the road blocks on the gates, is what directly caused the authorities to order these hearings closed down because it was so embarrassing to the Government to have that kind of inadequate investigation in a serious case.
Now, in paragraph (f) an absolutely critical factor in this case is the suggestion by the Government that one of the murder weapons or possibly more, but certainly we think that the question of an ice pick which may have been a murder weapon, the Government at the Article 32 attempted to establish through its witnesses that the ice pick was an item that was owned by the MacDonald family. Defendant has testified then and repeated on other occasions that he had no recollection that he and his wife had ever bought or owned an ice pick. And if I am characterizing correctly, he said, "To the best of my recollection, we didn't have one." But the Government made a great issue over it, that they may have owned an ice pick. I say that the Court now has reason to believe that one of the third party witnesses called to the Grand Jury or one of the witnesses who was not called, now, five years later, purports to say, "I remember seeing an ice pick in the MacDonald house." That is a terribly critical fact in this case. I would certainly be interested in knowing something about that so that we can adequately prepare on the subject. It seems to me that is a very particularized need and situation.
Paragraph (h) deals with another of the Government's stated theories repeatedly articulated. The Government has said that the crime didn't happen as the defendant claims, that he staged the crime scene after having committed these heinous crimes; that he deliberately changed the appearance of his living room and other places in the house to make it appear that he had been assaulted. There was a great deal of testimony in this case and in fact during the defendant's Grand Jury appearance there was concerted a considerable effort to have him reconstruct the location of various items; they showed the defendant photographs of the crime scene and they actually brought some of the furniture to the very Grand Jury room from the crime scene so that defendant might reenact some things for them.
Now, the evidence at the Article 32, however, indicates that because of the huge number of untrained persons who arrived at the scene and went through the crime scene that witness after witness has indicated that they either saw or personally rearranged the crime scene prior to any photographs being taken of it and prior to it ever being seen by the actual, if you will say, detectives in this case.
Now, we do know that names of certain of these persons were revealed to us at the Article 32 proceeding; we have reason to believe that there were several other persons present. All we say is it is a critical fact in their theory, a critical fact in the case, just tell us who else they know was present at the crime scene on the morning of the 17th. It seems to me there is no vested interest in denying that information, where they have revealed part of it and know that there were other witnesses around.
In (i), your Honor, we ask the names of the of the persons who lived in the vicinity to explain the theory of the Government that nobody heard it and the defendant lied. We know there are witnesses to disprove that and there may be more and if we can find anyone who lived there, we need that.
The Government has alleged, as refers to (j), your Honor, that as a part of its investigation to ferret out evidence against the defendant, that they interviewed a group of people on Long Island in May to September of 1970; it was meant to provide a motive in this case of some sort. They in fact named a group of persons at that time, persons who were supposed to be friends or associates, and one Joseph E. Lee, and that the Government agent, Mr. Walker, had testified he had interviewed a number of persons in trying to connect up Mr. Lee in some fashion in this case. The names were never revealed to us as to whom he interviewed and we simply ask to find out. And the Government has it. They thought it important enough to send their agent from Fort Bragg to Long Island and spend several days there and we really want to know who was interviewed as part of his investigation.
Your Honor, the Government, in regard to Paragraphs 31 through 34, which I in part addressed myself to, we have asked in number 34 for an extremely specified number of statements; we are not asking for the general file of statements of certain subjects. Here we have asked the Government for their statements of the defendant's mother, his sister and brother. It seems to me that the Government could little fear tampering with those witnesses by the defendant; if they have written statements those statement will be stood by by the persons who made them; that their relationship to defendant is an extension of his own immediate family; that if ever there was a joining of interest it is between them and the defendant and not the Government; I expect they are probably persons the Government claims were third party witnesses before the Grand Jury who were favorable to defendant. They did call the defendant's mother, they did call his sister. Why do they resist giving us our family's testimony in the Grand Jury and resist giving it to us here, it seems to me that applying logic you would say the Government can remain resistant in the face of all your cooperation, Dr. MacDonald, to giving you even your own family's statements. Those statements are important in regard to the relationship that existed between the defendant and his late wife. The Government's theory is that it was a bad relationship; in fact every piece of evidence is to the contrary. We need to know; these people will be called by the defense. We are entitled to know what the Government alleges they may have said to the Government differently because they have a statement that's different.
Paragraph 34(c), the statements of Helena Stoeckley, she was named by the judicial process as the leading suspect in these murders. We have reason to believe the Government interviewed her, based upon statements made at the Article 32 proceeding and representations made to us by Government investigators during the reinvestigation, they were going to find and talk to her. She had already made statements to the defendant's witness, William Posey, which, if your Honor pleases, caused the military proceedings hearing officer to name her as a suspect, and we are entitled to know whether or not the Government has interviewed her and what she said. She is a suspect at this time.
The other points, I think, your Honor, are self-evident, and I need not argue those any further. We do need them and the reason is very simple. Many of these people are defendant's witnesses. Mr. William Posey is a defendant's witness. He is the one who implicated the important evidence that was brought to light involving Helena Stoeckley and the circumstances around her. We would like to know what Mr. Posey said to the Government, what they asked and what he said to them.
THE COURT: Have you spoken to him?
MR. SEGAL: Not recently, your Honor.
THE COURT: Well, you know what he said the last time you did speak to him, don't you?
MR. SEGAL: Oh, yes, your Honor.
THE COURT: Do you have any reason to believe he would say anything different now?
MR. SEGAL: No, your Honor, not at all. Mr. Posey gave his testimony, under oath, he would not recant that, I don't think. But we do know that some of these witnesses have been subjected to pressure and I will tell you specifically who and how, and we are concerned about having them subjected to pressure. Have they possibly, in an attempt to avoid further pressure, given somewhat different statements to the Government or will they appear under oath on the stand and tell the truth and be confronted with something the Government says, "We've got;" we want to know about that; we've got to be able to produce evidence under pressure.
For instance, your Honor, in regard to the pressure, we point out that we have asked in this paragraph in one of the subsections, (j), for the statements made to the Government by Specialist Kenneth Mica. He was one of the first military police officers to arrive on the scene of the crime on the morning of February 17th. He attempted to administer mouth to mouth resuscitation to Dr. MacDonald who was lying there unconscious on the floor of his own home, suffering from the stab wounds and beating wounds that he had. Kenneth Mica testified under oath at the Article 32 proceedings that he was subjected to pressure. He gave statements to the defendant and was subjected to pressure by his commanding officer in the Military Police Corps to not cooperate or testify favorably to the defendant, to not indicate the disruption of the crime scene that had taken place in the witness's eye. We are concerned that he was further urged to disregard the testimony or knowledge and not testify to the fact that he had seen at a time consonant with the crime a woman who apparently fits the description of the one involved in this crime given by Dr. MacDonald at a place near-by, that he was urged and pressured by his superior officers to ignore that information, to not give it to the defendant. He did that, though, despite the pressure. We are concerned about pressure, and all we can say is, "Then don't tell us how you pressure people, just let us know what statements you got from them." The purpose we need it for should be clear, the allegation specific, the Article 32 transcript supports it, the information I related to the Court about Kenneth Mica.
Your Honor, now 31 through 34 and I will take this very briefly, but the Government argues that the defendant seems to think he is entitled to all of this under Brad v. Maryland and misunderstands Brady because Brady had nothing to do with pretrial discovery. Your Honor, that is not what I understand are the facts, circumstances and background of the Brady case.
Paragraph 1 on page 3 of the Government's response -- that Brady did not deal in any way with pretrial discovery by defendant, they ignore any duty of the Court in that respect. Brady, if your Honor pleases, dealt with a situation wherein the defendant engaged in pretrial discovery and the Government neglected or refused or failed to turn over that evidence and then later on at trial the issue developed about the nondisclosure. But the Brady case is bottomed on a problem arising precisely out of discovery with the necessity of turning over the evidence when the Supreme Court is talking about the defendant's evidence should be turned over pretrial. What is the Government referring to when it says, "Brady did not deal with any pretrial discovery." No, it isn't a case holding defendant gets this, that or the other at pretrial but it deals with the role that pretrial discovery plays and it says here to the Government to make disclosures and the penalty that will flow from failing to make an appropriate disclosure. The Government argues that the Government doesn't have a duty to help the defendant find that which is favorable to him. We have not made any general request to give what would be favorable; we have denominated specific categories in detail because we need to see them, not because we asked the Government to do any work about them. They have the names. We don't ask them to identify people whom they think are going to help us. We say, "You have this group of names, we need them for a particularized need that is spelled out here." That fits clearly within the requirements of the case law, your Honor.
With regard to Paragraph 37, your Honor, there is a very interesting answer by the Government. In our motion in that paragraph, we have asked for certain tangible objects and documents which the Government may use at trial, and the Government says it agrees to make available to the defendant all those things, tangible objects and documents, requested in subparagraphs (b), (c), (d) and (e) of Paragraph 37. We accept that and ask for some time table to be set up for a responsible transfer of documents and or accessibility. Let me say in respect to (a), we withdraw our request; we have gotten the information independently and we do not in any instance want to burden the Government with information we've obtained otherwise. So there is no dispute on Paragraph 37 at all. The matter can be disposed of, I think, by agreement. The Government can turn it over and we've gotten one they are not going to turn over.
Your Honor, with regard to Paragraph 39 and the request for exculpatory material, we note the Government said it acknowledged the responsibilities of Brady and I trust the Government will proceed at the earliest opportunity to make such evidence available.
That represents, I think, your Honor, everything in regard to the general motion.
I'm sorry, your Honor, after lunch there is a very brief supplement, your Honor, two small items.
THE COURT: All right.
Motion hearing resumed.
THE COURT: There was one more item you wanted to bring up and supplement, I believe, Mr. Segal.
MR. SEGAL: Yes, your Honor. I have filed and the Clerk has served on the Government a very brief supplementary request on the motion for discovery. It was filed yesterday, your Honor, a very brief supplement.
THE COURT: We have it but it hasn't come to my attention.
MR. SEGAL: I referred briefly to two matters there, your Honor, and I will be very brief. In regard to the request for test results, scientific tests, we have added to IV, Paragraph 19, page 5 of the original motion for general discovery in the case, a request for the reports of tests on clothing conducted on the clothing of Colette's and Kimberley MacDonald. And when I say clothing, the most specific item that we are aware of is the bed clothing worn by those persons at the time that they were murdered, pajamas, night gowns. Your Honor, that was the subject of considerable Grand Jury testimony as the defendant was told. One of the most important items, apparently, according to the Government when they confronted Dr. MacDonald before the Grand Jury was the statement that the holes on a certain item of clothing, including items alleged to have been his, and holes on clothing on the bodies of the persons were lined up together with certain other items of clothing to construct a model that supports their theory of how the injuries took place which the Government says implicates defendant. All we ask for is the report and test results on the clothing.
Your Honor, one of the contentions in the case is that under one of the fingernails of one of the MacDonald children a fiber was found which the Government contends came from the pajamas worn by the defendant on that night. And we merely ask for the results of the test of the fiber comparison since that is a specific matter and fiber comparison is an area of expertise in which there are a limited number of forensic experts and I think we could reduce it to two simple requests for all these tests, namely the reports the Government says it will give us and the methods by which they conducted their examinations and that would satisfy that.
Also included, your Honor, is a request for similar test on the bath mats, towels and bed linen. This is again a specific request arising out of the evidence in both the Article 32 hearing and the Grand Jury testimony as recited by Dr. MacDonald, the bodies were covered at some point by an item, either a bath mat or a towel. They were examined, the blood stains were examined, the Government contends in its theory of accusation that they are inconsistent with his story and we would simply ask that the same information that the tests revealed as for the other items.
And finally, there was a statement made to Dr. MacDonald that has never been reported in any other place that there were certain impressions, blood impressions, on the sheet and bedspread or related items and we ask for the report in that regard. All of those things have been related to defendant as existing and will be used against him and several of the items we did not know of before.
The second request on this amendment is for the opportunity to physically examine those items, incorporating the same matter. In our motion we have made (1) the request for the reports, and (2) for an opportunity to see or examine these items under the appropriate control. I would think the Government would not oppose this request except on the same general lines they've done in the others. There's nothing different, it is just an oversight on my part in not including these particular items.
THE COURT: All right. Mr. Stroud, do you desire to respond?
MR. STROUD: First of all, your Honor, with regard to Mr. Segal's earlier assertion in his oral argument and the citation of cases by him with regard to statements, by a defendant, Mr. Segal raised some question about the Government's response in which we stated we would agree as required by the language of Rule 16 to give to the defendant copies of any relevant written or recorded statements made by him which are within the possession, control and custody of the Government. We went on in our response to say that we did not agree to furnish him reports by agents of the Government of their recollections and interpretations of prior conversations with the defendant, when said agents are not taking notes of said conversations during that conversation. We have cited in our response a Seventh Circuit 1969 case, Court of Appeals case, and the only cases to which Mr. Segal referred, of course, were District Court decisions. We do not pretend, however, that we will not submit to the defendant for his examination copies of these type of reports, pursuant to the Jencks Act; if at the trial of this case certain Government agents testify about statements made in their presence by Dr. MacDonald, then we will certainly, according to the Jencks Act, make those statements available to the defendant. But the law does not require --
THE COURT: Whether or not the notes were made at the time of the interview?
MR. STROUD: No, sir. We are willing to give interview notes.
THE COURT: I understand that. But you say if they didn't make any notes at the time but just depended on their own recollection that you're not willing to give that.
MR. STROUD: That is correct, your Honor.
THE COURT: But you will give it at the trial in case that agent testifies from those notes?
MR. STROUD: That is correct, pursuant to the Jencks Act.
THE COURT: All right, I see your position.
MR. STROUD: Mr. Segal also referred to differing language used by the Government in its response. He pointed out that the Government said it was willing to furnish results of reports of physical or mental examinations, scientific tests and so on, the language being in the possession, custody or control of the Government.
Then going down to the third paragraph, the Government adds, "in the exercise of due diligence may become known to it with regard to photographs, copies of photographs and copies or photographs of diagrams and sketches." This was not an attempt on the part of the Government, as Mr. Segal has characterized it, to mislead anyone; we are simply using the language of the statute; we are simply using the language set forth in the U. S. Code and that language differs with regard to those two types, those different types of evidence or different types of discovery.
Your Honor, in that regard, Mr. Segal raised the point that if there were private scientists or private scientific examinations or experiments that we were trying to avoid having to give those. This is not the case. I think the case law is clear that even if it were done with private persons it would still be within the custody and control of the Government and we would be required to give that. So it is not an attempt by the Government to avoid any of its responsibility under Rule 16.
Now, with regard to photographs, what we will do, Mr. Segal raised a question about that, we will either agree to give them a negative from which they can make copies of photographs, and in instances where we do not have negatives available to us we will give them a photograph from which they can have the copy made. But we will not pay or we wish not to pay at Government expense for producing those copies for the defendant.
We also are aware of our responsibility to continue to divulge information required under the rules of discovery and under, of course, the doctrine -- and Mr. Segal wanted to make sure we understand that -- and we state at this time that we do understand the Brady doctrine.
With regard to another matter, of course, the Government has agreed to certain discovery here as provided under the statute, under Rule 16; we have filed a counter-motion for discovery, the Government's motion for discovery.
THE COURT: Is your agreement conditioned on the compliance or acceptance by defendant of your counter-motion?
MR. STROUD: Well, your Honor, the rule reads that if the Court orders the Government to submit to certain discovery, then the Government is entitled to counter-discovery, and we are asking for that. We have received no response from defendant in that regard as to whether or not he is willing to make those items available to us that we have requested in that counter-motion, and I felt like I should bring that to the Court's attention.
THE COURT: Well, why don't we just get that behind us right now? Mr. Segal, would you comply readily with the Government's motion if you are allowed to discover?
MR. SEGAL: We will cooperate fully, your Honor. I would just like, when we come to the Government's motion, it is so vaguely couched, but we will withhold nothing, really.
MR. STROUD: Vaguely couched; again, we're using the language of the statute; of course, that discovery allowed by the Government is very limited compared to that that may be allowed on behalf of the defendant. In that discovery allowed by defendant, we have agreed to it; of course, there are other areas where we do not agree and wish not to give discovery at this time, your Honor, as we have submitted in our response. In that regard, your Honor, I will just stand on our response and, of course, submit myself to any questions you may have at this time.
THE COURT: All right, sir. Any rebuttal?
MR. SEGAL: No, your Honor.
THE COURT: All right. You may go to your next motion.
MR. SEGAL: Your Honor, because I think it is related subject matter, perhaps we could go at this point to the Government's motion and deal with that, because the third motion of mine in discovery is Grand Jury selection processes. It is a little different subject so perhaps we could dispose of the Government's request.
Your Honor, I have not answered yet the Government's motion, but it also came to me on Wednesday together with all of the other Government answers and motions and it did not allow us sufficient time to prepare a written response.
The Government's motion, your Honor, it is obvious, is couched in general terms, and if I might suggest this, I do not want in any way to withhold reciprocal discovery from the Government in this case. I don't want my words in any way to be interpreted as caviling on that; I would be perfectly willing to make available to the Government every written report with all of the details that I have suggested; that is, I am going to surrender laboratory notes, methodology, reports and findings on all scientific reports that are done on behalf of defendant. In most instances we hope that those reports will be done following our opportunity to physically conduct these investigations with our own experts but they will be turned over. I would turn over all of that material without hesitation to the Government in this case, if the court would be willing to extend the same reciprocity to our request for Government discovery. If the Court thinks we have asked for too much from the scientific experts and would only want to grant us both the conclusion and report and methodology, then I would suppose we'd be certainly willing to return that reciprocally; if your Honor wishes to ask us to turn over more we are at your Honor's pleasure because our position is in this case that discovery will generally facilitate the efforts of both sides in the trial of the case if there should be one and all we ask is fairness in distribution of those responsibilities.
We do not have any objection to turning over to the Government any of the tangible items referred to in Paragraph 1 that they ask for if they are to be used at trial, and we will conscientiously make such determination at the earliest possible time to do that, if the Court would see fit to grant the same reciprocity to the defendant. It seems to me that does cover all of the matters and we are willing to fully place this matter in your Honor's discretion as to how to handle it. I think I have no matter of dispute as to what your Honor would do in this regard. We are willing to cooperate fully in this motion and do not, in terms of its purport, in any way oppose its objective. We are sympathetic and we will cooperate.
If there are not any other comments, your Honor, at this point we are ready to proceed to the defendant's motion to discovery, pursuant to 28 U.S.C. 1867.
By this particular motion, if your Honor pleases, and the accompanying briefs, the defendant is seeking the opportunity to make, a rational challenge to the composition and selection of the Grand Jury that returned an indictment in this case. I want to stress to the Court that personally, as a lawyer but specifically in this case, that I am not given to sort of making general statements of defects in existence without believing that some allegations in support therefor should be made. In this particular case I think that we have complied with that.