STATE OF VIRGINIA
CITY OF ROANOKE


BEFORE ME, the unsigned, personally appeared James F. Douthat, who upon oath deposes and states as follows:

(1) On June 6, 1967, I was admitted to practice law in the State of Virginia. I currently practice with the firm of Hazelgrove, Dickinson, Rea, Smeltzer & Brown in Roanoke, Virginia.

(2) From December 1, 1967, through November 30, 1971, I was a Captain in the Judge Advocate General Corps of the United States Army stationed at Fort Bragg, North Carolina. In 1970 I was assigned to the office of the Judge Advocate, at the JFK Center for Military Assistance and was appointed defense counsel for Capt. Jeffrey MacDonald in the Article 32 hearing into charges that Capt. MacDonald killed his wife and children.

(3) I have read the affidavit of Clifford Somers appended to the Government's Response to Motion to Set Aside Conviction in which Mr. Somers asserts that at the time of the Article 32 hearing I was aware of the loss of a piece of a piece of skin which had been scraped from under Mrs. MacDonald's fingernail during the course of the investigation. Contrary to Mr. Somers statement, I was never aware that this piece of skin had been lost. Moreover, although Mr. Somers states that I castigated him at that time for the loss of this evidence, I do not believe that any such argument took place.

(4) As appointed military defense counsel for Capt. MacDonald, I compiled extensive files on the investigation of the death of his wife and children and the legal proceedings in which I was involved. Particular attention was paid to the physical evidence from the scene of the crime and laboratory reports analyzing such evidence were carefully gathered and indexed. If I had been advised of the loss of so crucial a piece of evidence as the piece of skin from Mrs. MacDonald's fingernail, I would have made a note of its loss which would have been part of my file. I have recently checked and no such information occurs in my laboratory file.

(5) I have not reviewed the transcript of the Article 32 investigation. However, I can state without hesitation that if the defense had been aware of the loss of the piece of skin, it would have been brought to the attention of the Article 32 investigation officer and made a part of the Article 32.

(6) In the fall of 1970, all charges against Capt. MacDonald were dismissed and he was discharged from the Army. I was advised that the Army Criminal Investigation Division (CID) was continuing its investigation into the death of his wife and children and on a number of occasions I was consulted by the CID investigators seeking information regarding the crime. When James R. Nance turned over items of clothing and boots to the CID, Capt. MacDonald had been discharged from the Army. My execution of a document acknowledging those items had been given to the CID was done at the investigating agent's insistence and was done by me to assist in the ongoing investigation. It should be remembered that at the time all charges against Capt. MacDonald had been dismissed and he had been discharged from the Army. I had no authority to represent a civilian.

(7) It was not until after Capt. MacDonald's conviction in the United States District Court that I was asked about the items of clothing and boots in the possession of the CID. At first I did not recall the evidence but after reviewing my files I found a copy of the document I had signed acknowledging these items had been turned over to the CID. This information was never given to the attorneys representing Capt. MacDonald prior to the trial in the United States District Court.

(8) Although I have informed the attorneys representing Capt. MacDonald of the existence of a witness that I assumed they did not know about, attended an interview of this witness by an FBI agent and made copies of portions of my files available as specifically requested, I have never considered that I have represented Capt. MacDonald after his discharge from the Army. Even though I did not represent Capt. MacDonald, if I had known information that would have been beneficial to the defense and not available through discovery, I would have made it available. Unfortunately, I was not advised of the impact of the items of clothing and boots by the CID nor did I consider that any evidence in the possession of the CID would not be made available to Capt. MacDonald's attorneys through routine discovery.

James F. Douthat

Sworn to me and subscribed before me this 5th day of September, 1984.

Francis K. Smith – Notary Public
My commission expires February 9, 1988