Affidavits, Declarations and Statements

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UNITED STATES OF AMERICA	:
VS.	:	CASE No. 75-26-CR-3
JEFFREY R. MACDONALD	:

I, Bernard L. Segal, being first duly sworn, state under oath the following:

1. I am an attorney at law admitted to practice in the State of Pennsylvania.

2. Between April 1970 and through 1982, I was chief trial and appellate counsel to Jeffrey R. MacDonald. I represented Dr. MacDonald in (a) the Army's Article 32 proceedings, (b) the period between the conclusion of the military's Article 32 proceedings and his indictment on January 24, 1975, (c) interlocutory appellate proceedings in federal courts that began in 1975, (d) the 1979 trial which was held in the Federal District Court for the Eastern District of North Carolina before the Hon. Franklin T. Dupree, Jr., (e) the direct appeal to the Fourth Circuit U.S. Court of Appeals, and (f) the United States Supreme Court.

3. In the course of my representation of Dr. MacDonald, I was responsible for overseeing the defense investigation of this case and for making formal pre-trial discovery requests for the disclosure of material pursuant to Federal Rule of evidence 16, Brady v. Maryland, 373 U.S. 83 (1963), and the Jencks Act (Title, 18 United States Code, Section 3500).

4. In addition to filing formal discovery motions with the Court and being served with the government's formal responses, I also represented Dr. MacDonald in more informal negotiations with the government on various discovery matters, and I am thoroughly familiar with the chronology of events that is set forth below.

5. In April of 1975, as a result of having represented Dr. MacDonald during the Army's Article 32 proceedings and during the federal grand jury proceedings in late 1974 and early 1975, I was acutely aware that whatever case the government was attempting to bring against Dr. MacDonald, it was going to be based primarily on the findings and opinions of its forensic experts. As a result, I felt it important to gain access to the laboratory notes of the government's experts, as they might contain findings exculpatory to Dr. MacDonald. In light of Dr. MacDonald's account of the events surrounding the murders, I thought it likely that some of the forensic tests must surely have uncovered evidence of the presence of intruders in the MacDonald house, since my client was insisting that such intruders engaged in a violent struggle in the house.

6. On or about April 8, 1975, I filed "Motion for Discovery and Inspection of Documents, Etc., Pursuant to Federal Rule of Criminal Procedure 16" on Dr. MacDonald's behalf, in which I requested discovery from all federal, state and local agencies that had assisted the United States Government in the investigation and prosecution of this case. (A copy of this motion is attached hereto as Exhibit 1.)

7. In Part IV of Exhibit 1, in a section entitled "Reports of Scientific, Physical, Medical and other Examinations", I requested disclosure of the following:

The results or reports, lab notes, methodology, nature and name of physical examinations, scientific tests and experiments made in connection with this case, including but not limited to:

a) All psychiatric reports and examinations of defendant.

8. All reports, physical examinations, scientific tests and experiments in regard to hair, including but not limited to:

a) Samples taken from the defendant by the United States Army in July 1970;

b) Samples taken from the defendant by the Federal Bureau of Investigation in August 1974;

c) Reports of comparisons of hair samples of the defendant with that of Colette, Kristen and Kimberly MacDonald, and that of any other persons with whom the hair of the aforesaid members of the MacDonald family was examined for comparison by the Government.

9. All lab tests and reports on any fibers found in the house.

12. All experiments, analyses and reports regarding all foreign matter found at the scene of the instant offense.

18. All reports regarding the examination of weapons suspected of or alleged to have been used in connection with the killing of Colette, Kimberly [sic] and Kristen MacDonald, and in injuring the defendant.

22. All analyses and reports of fibers, paints and scrapings.

26. All scientific reports and analyses made in connection with the CID's investigation and reinvestigation of this case. (emphasis added)

8. In Part IX of Exhibit 1, entitled "Exculpatory Material," I moved the Court to order disclosure of all exculpatory materials, citing to the case of Brady v. Maryland, 373 U.S. 83 (1963), and requesting "the production of any evidence or information which [was] exculpatory or favorable to the defendant."

9. On April 25, 1975, the government filed its "Response to Motion for Discovery and Inspection of Documents, Etc., Pursuant to Federal Rule of criminal Procedure 16," a copy of which was served on me. (A copy of this response is attached hereto as Exhibit 2.) In its response, the government indicated its unwillingness to disclose laboratory notes and methodologies, and stated:

With regard to paragraphs seven through twenty-six of the defendant's Motion, the Government agrees to furnish the defendant with copies of results or reports of physical or mental examinations and of scientific tests or experiments made in connection with this case which are within the possession, custody or control of the Government. However, the government does not agree to furnish lab notes, methodology, nature and name of physical examinations, scientific tests and experiments made in connection with this case. When the results of the tests and the substance tested are offered to the defense, denial of discovery of detailed laboratory findings and records of testing procedures is not an abuse of discretion. (emphasis added) United States v. Smaldone, 484 F.2d 311, 320-321 (10th Cir. 1973), cert. denied, 415 U.S. 915 (1974).

In the same response, the government also represented to the defense and to the Court that it was "well aware of its responsibilities under Brady v. Maryland, 373 U.S.83 (1963) and intend[Ed], pursuant to the Brady doctrine, to make the defendant in this case aware of any evidence favorable to him where that evidence [was] material to guilt or punishment".

10. On or about April 28, 1975, I filed with the Court and served upon the government "Memorandum in Support of Defendant's Motion for Discovery and Inspection of Documents, Etc., Pursuant to Federal Rule of Criminal Procedure 16," in which I again emphasized the need for obtaining materials concerning mental examinations and scientific tests conducted by the government, and the defendant's right to all exculpatory materials. (Attached hereto as Exhibit 3)

11. On May 6, 1975, I filed with the Court and served upon the government "Amendment to Motion for Discovery and Inspection of Documents, Etc., Pursuant to Federal Rule of Criminal Procedure 1611, in which I requested all "tangible objects" in reference to "all matters referred to in paragraphs 7 through 26 of the [defendant's April 8, 1975] Motion for Discovery." (Attached hereto as Exhibit 4)

12. On May 5th, 6th, 7th and 22nd of 1975, the District Court held hearings on defendant's pre-trial motions. (Attached hereto as Exhibit 5 are relevant transcript pages from these hearings.) On May 7, 1975, the Court took up the issue of pre-trial discovery. During this hearing, I pointed out to the Court that the defense had set forth with particularity and specificity -- in paragraphs 7 through 26 of its April 8, 1975 discovery motion -- the types of discovery materials it was seeking, and I noted that the government had specifically stated in its response that it would not furnish defendant with "notes, methodologies, nature and name of its physical examinations and scientific tests and experiments in connection with this case." (Exhibit 5; Hearing transcript pages, pp. 414-415) In addition, I also pointed out to the Court that, based on defendant's discovery requests, the defense was not making a general Brady request, but had made specific requests for items sought. (Exhibit 5; Hearing transcript, p. 437)

13. In response to my arguments at the May 7, 1975 hearing for disclosure of the laboratory notes and underlying methodologies, the government informed the Court that it would stand on its written response to the defense's motion for discovery (Exhibit 2), in which it had refused to disclose laboratory notes concerning its experts' examinations of the evidence and the methodologies employed in examining the evidence. (Exhibit 5; Hearing transcript pp. 445-446) The government also represented to the defense and to the Court that it understood its Brady obligations by stating: "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". (Exhibit 5; Hearing transcript p. 445)

14. On July 29, 1975, Judge Dupree issued an opinion denying Dr. MacDonald's discovery motion, stating:

By this motion, the defendant seeks in effect to obtain a copy of the government's entire file including photographs, all tangible evidence and exhibits of every kind and description. In response to the motion the government has agreed to make available to the defendant in advance of the trial or at the trial pursuant to the provisions of the Jencks Act, 18 U.S.C. sec. 3500, certain portions of the evidence sought to be discovered by the motion. Except as thus agreed by the government, the court is of opinion that the motion is overly broad and should be and is hereby denied in the discretion of the court. United States v. Anderson, 481 F.2d 685 (4th Cir. 1973). The court reserves the right to modify this ruling should it appear later in the proceedings that the ends of justice require such action. (A copy of the Court's opinion is attached hereto as Exhibit 6.)

15. On November 4, 1975, attorney Michael J. Malley, who assisted in Dr. MacDonald's defense, wrote to prosecutor Brian Murtagh concerning discussions between the government and the defense over proposed stipulations, whereby the defense agreed to stipulate as to the chain of custody for the physical exhibits in the government's possession in return for disclosure of Jencks Act materials to the defense. (Attached hereto as Exhibit 7)

16. In Exhibit 7, Mr. Malley indicated to Mr. Murtagh that any such stipulations would be subject to a number of conditions, including establishing that each and every laboratory technician would verify that he or she gathered the evidence (if that is the case) labeled it, removed it for testing, performed certain tests, returned all unused portions of the material, labeled the material, and recorded the results of the tests he or she ran. We would expect that each laboratory technician could verify that he or she accurately transcribed laboratory findings, and that those findings have been accurately transcribed on the final consolidated laboratory reports. We would expect that you will produce an affidavit from each and every laboratory technician that that technician has personally verified his part in the chain of custody, and if called upon to testify, would so testify under oath. (emphasis added)

17. On or about November 10, 1975, I sent Mr. Murtagh a stipulation agreement dated November 9, 1975, signed by myself and Dr. MacDonald. (This stipulation agreement is attached hereto as Exhibit 8.) The terms of this agreement incorporated, inter alia, all of the terms of Mr. Malley's November 4, 1975, letter to Mr. Murtagh.

18. On November 11, 1975, my law clerk, Charles Bennett, received the transcripts of testimony of 25 witnesses who appeared before the United States Grand Jury for the Eastern District of North Carolina, which indicted Dr. MacDonald. (Attached hereto as Exhibit 9 is a copy of Mr. Bennett's notarized receipt.)

19. On November 12, 1975, I wrote to Mr. Murtagh to inform him that I understood that the government still had additional Jencks Act materials that had not yet been released, and that I expected the government to forward these materials to me as soon as possible. (Attached hereto as Exhibit 10) I also informed Mr. Murtagh that, after having read some of the grand jury testimony of the government's experts, it was clear that the underlying basis for many of the laboratory tests had not been explained to the grand jury, and that I considered these reports to fall within the meaning of "statements" for purposes of the Jencks Act. Finally, I wrote to Mr. Murtagh:

For your information, should this matter come to trial I fully expect that it will be necessary to have our expert witnesses furnished with full and complete explanations of methodology of any and all tests which the government intends to rely on. Since our experts' evaluation will be of necessity be a time consuming process, the sooner you can furnish these materials, the more orderly my own trial preparation can be.

20. Sometime shortly after November 13, 1975, I received an undated letter from Mr. Murtagh, enclosing a signed copy of the November 9, 1975 stipulation agreement (Exhibit 8) and additional Jencks Act materials. (Attached hereto as Exhibit 11) In this letter, Mr. Murtagh stated:

This letter confirms our telephone conversation of November 10, 1975 and my conversation with Mr. Malley of November 11, 1975, regarding the agreement to stipulate to the chain of custody in return for advance access to Jencks Act materials. Based on these conversations, the supporting letter of November 4, 1975, and the stipulation of November 11, 1975, it is my understanding that a bargain has been struck; consequently, the Government will perform its agreed upon part of that bargain as quickly as possible.

The package of Jencks Act materials that accompanied this letter did not contain any laboratory notes, or notes concerning the methodologies employed by the government's experts in regard to their tests of the physical evidence.

21. On November 17, 1975, I wrote to Mr. Murtagh, acknowledging receipt of the additional Jencks Act materials. (Attached hereto as Exhibit 12) In this letter, I again pointed out the "deficiencies in the government's release of Jencks Act material, particularly with regard to scientific notes and lab results."

22. On November 24, 1975, Mr. Murtagh responded by letter to my letters of November 12 and 17, 1975, in which he informed me that "[c]oncerning the Jencks Act materials, there are no laboratory tests, which are not reported in either a CID, IRS or FBI laboratory report, which is currently in your possession". (Attached hereto as Exhibit 13; emphasis added) Mr. Murtagh also stated that "before the government releases any more information, we are entitled to receive the stipulations concerning the chain of custody", and indicated that he had enclosed some draft stipulations.

23. On December 4, 1975, when I realized that the government was not going to live up to its agreement to provide the defendant with all Jencks Act materials, I wrote to Mr. Murtagh, informing him that I was not at all satisfied that the government had fully performed its Jencks Act/Chain of Custody agreement. (Attached hereto as Exhibit 14) In this letter, I pointed out to Mr. Murtagh that in order to perform any laboratory tests in accordance with good scientific practice, laboratory technicians and scientists regularly record the raw data obtained from their instruments or by their observations during such tests.

Frankly, I consider it totally unbelievable that there are no such statements. You are obviously playing games within the meaning of the term "statement". I know that the various investigators in the groups of persons had to make notes and reports of their activities, and, we are entitled to these.

24. On January 22, 1976, I wrote to Mr. Murtagh again, asking him whether the government was going to fulfill its obligations under the stipulation agreement. (Attached hereto as Exhibit 15)

25. On January 23, 1976, the Fourth Circuit Court of Appeals reversed the District Court's dismissal of Dr. MacDonald's speedy trial claim. During the period between January 23, 1976 and the summer of 1977, there was little communication between the defense and prosecution concerning discovery and access to the physical evidence while the government was appealing the decision of the Fourth Circuit Court of Appeals to the United States Supreme Court.

26. On May 1, 1978, the United States Supreme Court reversed the Fourth Circuit Court of Appeals' decision on Dr. MacDonald's Sixth Amendment speedy trial claim and remanded the case to the Court of Appeals for resolution of his other claims. On remand, the Court of Appeals denied Dr. MacDonald's remaining claims, and the Supreme Court denied certiorari on March 19, 1979.

27. As a result of the government's refusal to provide the defense with full and open access to the evidence and a quickly approaching trial date, I filed "Motion of Defendant to Compel Production of Tangible Objects" (Attached hereto as Exhibit 16), despite the fact that the defense had previously requested disclosure of all "tangible objects" in its "Amendment to Motion for Discovery and Inspection of Documents, Etc., Pursuant to Federal Rule of Criminal Procedure 16" (Exhibit 4) filed on May 2, 1975. In the Motion to Compel, the defense moved the Court to order the government to deliver to the defense's forensic expert, Dr. John Thornton, all "tangible objects" and "exhibits" that were the subject of government examination and testing, as referred to in a number of laboratory reports that were listed in Exhibit A to the motion. The list that was set forth in Exhibit A included typewritten laboratory reports containing the results of tests conducted by the CID's and FBI's laboratory technicians on debris found at the crime scene. All of these typewritten reports in this list were disclosed to the defense during the pre-trial discovery phase of Dr. MacDonald's case.

28. In addition to the Motion to Compel, I also filed "Memorandum in Support of Defendant's Motion to Compel Production of Tangible Objects," in which I argued:

It is beyond dispute that the objects sought herein are material to Dr. MacDonald's defense; moreover, it is highly likely that the government will use as evidence most, if not all, of the objects sought. For example, the existence of threads (purported to be from Dr. MacDonald's pajama top) near the bodies of the victims was allegedly significant to the Government's theory of the prosecution. Similarly, the existence of allegedly different blood types at various locations in the house where Dr. MacDonald's family was murdered was thought to be probative. (Attached hereto as Exhibit 17)

29. On May 10, 1979, the Court held a hearing on defendant's Motion to Compel. (Attached hereto as Exhibit 18 are the relevant transcript pages from this hearing.) At this hearing, the government argued to the Court that it had been completely forthright with the defense in terms of providing it with discovery. Judge Dupree's response to the government, a response that now appears to be both wise and prescient, was:

My observation is that it is well-advised to do that, because if I have learned anything about the evolution of criminal jurisprudence over the last 15 years, it is that anything short of a complete disgorgement by the government of everything that it has got -- anything short of just actually getting in there and arguing the case for the defendant -- will just make trouble for all of us down the line. I estimated earlier this week that I am spending a good 50 percent of my time on post-conviction matters, relating to the failure of the defendants in criminal cases to have access of all available knowledge that was allegedly available to the prosecutor.

I have the spectre of having the witnesses, the United States Attorneys, the District Solicitors, everybody -- they spend a substantial portion of their time testifying, and trying to justify their actions. That is where this phase of criminal jurisprudence seems to me to have been reached. So if you have anything at all that this defendant could conceivably use in the defense of this case, for God's sake, give it to him. (Exhibit 18; Hearing transcript, pp. 13-14)

30. On May 24, 1979, I filed a letter addressed to Judge Dupree. (Letter attached hereto as Exhibit 19) I included in my letter the verbatim remarks of Dr. Thornton, so that the Court would be fully apprised of the defense's views as to the relationship between the forensic evidence and the defendant's need to prove the presence of strangers in the house. Dr. Thornton stated:

The principle issue is that the evidence should be given a de novo examination. . . . Additionally, other evidence may exist which will be helpful to the defense that either was ignored by the prosecution's experts, or, more likely was not mentioned in the written reports of the Prosecution's experts. [emphasis added]

I am also disturbed by one other track this matter seems to be taking, i.e., the stressing of the blood stain evidence. Certainly this is an important aspect of the case. But, I believe there are many other aspects which must be reviewed. Among these are the reconstruction of the penetrations of the pajama top of Jeffrey MacDonald, the nature of the distribution of the wounds to Jeffrey and Colette MacDonald, and trace evidence which might be unexplainable in terms of the milieu of the scene and might indicate other participants. A reading of the CID and FBI laboratory reports suggest to me that this latter factor has been given short shrift by the prosecution's experts. I do not know at this point what such examination would reveal, if anything. But, we will never know until such time as the examinations are conducted. (emphasis added)

31. On July 6, 1979, the government filed with the Court, "Motion Relating to Blood Testing and Microscopic Examination of Fibers," in which the government moved the Court to allow the defense to examine blood stains and fibers. (Attached hereto as Exhibit 20) The government asked that the Court order the following:

9. That the defendant shall not be permitted to open any sealed vial, pill box, or other container having within it certain fibers, unless the defendant agrees in writing to waive proof of chain of custody for the period between analysis and sealing and introduction into evidence.

10. That the defendant shall not mount any fiber specimens on slides in the absence of a binding written agreement as to the authenticity and chain of custody of that specimen, and no fiber shall be destroyed by solubility testing in the absence of a binding written agreement as to the number of threads or yarns previously contained in any particular vial which is utilized, and

11. That all tests, relating to blood and otherwise covered by the scope of this motion, shall be filed with the Court and hand delivered to the government counsel by noon of July 12, 1979.

32. On July 11, 1979, Judge Dupree issued his order on the government's "Motion Relating to Blood Testing and microscopic Examination of Fibers." (Attached hereto as Exhibit 21) Judge Dupree ordered, inter alia:

8. That the defendant shall be permitted to visually examine the contents of any sealed vial, pill box, or other container having within it certain fibers which the government proposes to introduce into evidence.

9. That the results of all tests, relating to blood and otherwise covered by the scope of this order, shall be filed with the court and hand-delivered to the government counsel by 9:00 a.m. on July 17, 1979. (emphasis added)

This order thus limited the discovery to evidence that the government planned to introduce, not evidence that it would keep out, and it gave the defense only six days to complete its testing and reporting.

33. On July 13, 1979 [sic; June 13, 1979], I filed "Motion of Defendant for Pretrial Discovery," in which the defense moved the Court to order the government to disclose additional documents material to Dr. MacDonald's defense and, "to the extent not previously furnished, all information in the Government's possession which is of an exculpatory nature . . . . " (Attached hereto as Exhibit 22) On the same date, I moved the Court for a pretrial conference pursuant to Federal Rule of Criminal Procedure 17.1, to resolve all outstanding motions, including defendant's renewed motion for discovery. (Attached hereto as Exhibit 23)

34. On July 14, 1979, Judge Dupree held a hearing on defendant's outstanding motions, including defendant's renewed motion for discovery. (Attached hereto as Exhibit 24 are the relevant transcript pages from this hearing.) At this hearing, Judge Dupree ordered the government to "turn over any Brady material not previously turned over immediately". (Exhibit 24; Hearing transcript, p. 343) In response, prosecutor Brian Murtagh stated: "Your Honor, we will comply with Brady." (Exhibit 24; Hearing transcript, p. 344) Subsequent to the Court's order, I received a number of files from the government, consisting of very few pages, which pertained strictly to investigations by the government of other suspects in the case. This disclosure did not contain any laboratory reports or handwritten laboratory notes made by the government's experts in the course of examining the physical evidence.

35. Immediately after the pretrial conference in front of Judge Dupree, I filed "Defendant's Memorandum of Law in Support of His Motion For Discovery." (Attached hereto as Exhibit 25) In this memorandum, I pointed out to the Court that the government had refused to provide the defense with remaining Jencks Act materials -- consisting of grand jury testimony, FBI and CID witness statements and any other material as required by the Act -- that were the subject of the aborted stipulation agreement in 1975.

36. During the trial of Dr. MacDonald's case, which began on July 16, 1979, I caused to be filed with the Court "Defendant's Request to the United States Attorney for Production of Jencks Act and Brady Material at the Conclusion of Government's Case in Chief." (Attached hereto as Exhibit 26). In this motion, dated August 6, 1979, I requested the disclosure of Jencks Act and Brady materials including, but not limited to, "All statements and reports of and by each and every person listed by the Government on the list of witnesses submitted by it to the Defendant at the beginning of trial". The government failed to disclose any materials in connection with this request.

37. On August 20, 1979, I filed with the Court "Motion to Dismiss the Indictment for Failure to Disclose Brady Materials to the Defendant." (Attached hereto as Exhibit 27) Included as one of the grounds for this motion was the fact that the Government ha[d] failed, refused and neglected to provide the Defendant with the statements and reports of eighty-eight (88) persons whose names were contained on the pretrial list of potential Government witnesses filed with the Court by the Government. The Defendant ha[d] reason to believe that (1) by virtue of the fact that the Government did not choose to call these witnesses, (2) that by virtue of the fact that the Government ha[d] so vigorously resisted disclosing the statements and reports of these witnesses, and (3) by virtue of some facts learned extrinsically by the Defendant about some of the witnesses, that these statements may or d[id] contain exculpatory material for the Defendant.

I thus indicated that I would be interested in pursuing any witness on the government's witness list whom the government chose not to call.

38. On August 21, 1979, at a bench conference, Judge Dupree denied defendant's motion to dismiss based on the government's failure to turn over Brady materials. However, Judge Dupree again admonished the government, stating:

But now, I'll say this: I have always taken the position that if the Government has anything that classifies as Brady material and they do not give it to you, they are certainly going to get reversal. I have instructed them to do it, but now I am not going into their files and in a case as big as this, I am not going to take three days off to see what they've got and whether or not you are entitled to it -- I'm not going to make that. That's their risk. If they've got stuff, they're going to do it. (emphasis added) (Attached hereto as Exhibit 28)

39. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten laboratory notes of CID laboratory technician Janice S. Glisson which reference her findings of blond synthetic hair-like fibers on a clear-handled hairbrush (designated by the CID as Exhibit "K") taken from the MacDonald home. (Attached-20-hereto as Exhibit 29) I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.

40. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten inventory notes and laboratory notes of FBI lab technicians James Frier and Kathy Bond, which document the existence of black, green, and white wool fibers found in debris taken from the body of Colette MacDonald (designated by the FBI as exhibits Q-88 and Q-100) and the wooden club murder weapon (designated by the FBI as exhibit Q-89). (Attached hereto as Exhibit 30) I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.

41. I have been shown by Dr. MacDonald's present counsel an unsigned typed FBI laboratory report dated March 14, 1979, and numbered "90103084 S RR IZ." (Attached hereto as Exhibit 31) I have carefully reviewed this typed report and state with certainty that I never saw it prior to, nor during, the trial of Dr. MacDonald's case, nor was I aware until now that the FBI had conducted a re-examination of certain pieces of evidence in early 1979.

42. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten laboratory notes of Army CID laboratory technician Dillard O. Browning, which document the existence of fibers within the debris taken from underneath the body of Colette MacDonald (designated by the CID as Exhibit E-303) that did not have the blue pajama top as their source. (Attached hereto as Exhibit 32) I have carefully reviewed these hand written notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.

43. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten laboratory notes that were provided under the Freedom of Information Act to Dr. MacDonald's attorney, Anthony P. Bisceglie, by former FBI lab technician Paul M. Stombaugh. (Attached hereto as Exhibit 33) These handwritten notes indicate that the FBI's lab examiner discovered within FBI exhibit Q-79, which was the debris taken from underneath the trunk of Colette MacDonald's body, the existence of fibers that did not have the blue pajama top (designated by the FBI as exhibit Q-12) as their source. I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.

44. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten laboratory notes of CID laboratory technician Dillard O. Browning, concerning his examination of debris (designated by the CID as exhibit E-211) taken from a blue sheet that was found on the floor of the master bedroom. (Attached here to as Exhibit 34) These documents indicate that the CID found what possibly may have been a piece of "skin tissue" and an "animal hair" within the debris taken from the blue sheet. I have also been shown by Dr. MacDonald's present counsel what have been represented to me as being another page of handwritten laboratory notes of CID laboratory technician Dillard O. Browning, concerning another examination of the debris taken from the blue sheet (the blue sheet itself having been designated by the CID as exhibit D-211), which document the presence of a pubic hair within the debris taken from the sheet. (Attached hereto as Exhibit 35) I have carefully reviewed the handwritten notes in Exhibits 34 and 35, and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.

45. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten laboratory notes of FBI lab technicians Kathy Bond and James Frier. (Attached hereto as Exhibit 30) These notes, which document the FBI's laboratory examination of the debris taken from the blue sheet that was found on the floor of the master bedroom (designated by the FBI as exhibit Q-125), document the FBI's conclusion that the CID had misidentified the hair found in this debris as being an animal hair when, in fact, it was a human hair. I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.

46. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being the handwritten laboratory notes of CID lab technician Dillard O. Browning, which document the existence of a human hair found in debris taken from the bedding of Kimberly MacDonald (designated by the CID as Exhibit E-124). (Attached hereto as Exhibits 36 and 37) I have carefully reviewed these handwritten notes and state with certainty that I never saw these notes prior to, nor during, the trial of Dr. MacDonald's case.

47. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten laboratory notes that were provided under the Freedom of Information Act to Dr. MacDonald's attorney, Anthony P. Bisceglie, by former FBI lab technician Paul M. Stombaugh. (Attached hereto as Exhibit 38) These handwritten notes, like the notes compiled by CID laboratory technician Dillard Browning, indicate the presence of unidentified human body hair in the bedding of Kimberly MacDonald (designated by the FBI as exhibit Q-93). I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.

48. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being the handwritten laboratory notes of CID lab technician Dillard O. Browning, which document the existence of a human hair found in the debris taken from the bedspread on Kristen MacDonald's bed (designated by the CID as Exhibit E-52NB), that did not match hair samples taken from Dr. MacDonald. (Attached hereto as Exhibits 39, 40 and 41) I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.

49. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being the handwritten laboratory notes of FBI lab technician Kathy Bond, which document the existence of a human hair within the debris taken from the bedspread of Kristen MacDonald (designated by the FBI as exhibit Q-87). (Attached hereto as Exhibit 30) I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.

50. The only handwritten laboratory notes that the defense ever received, were received during trial, and were limited to copies of handwritten notes that FBI laboratory technician Paul M. Stombaugh brought with him to the stand when he testified. (Attached hereto as Exhibit 42) After Mr. Stombaugh testified, I immediately requested that his notes be turned over to the defense pursuant to the Jencks Act. The Court ordered that Mr. Stombaugh's notes be turned over, and the government provided the copies of the notes to the defense, which consisted of 54 pages of notes, primarily having to do with the government's allegation that the blue pajama top had been stationery on the body of Colette MacDonald when the stab holes were made in it. These notes were immediately reviewed by myself and Dr. John Thornton for use during cross-examination. These notes make no mention of any findings or laboratory notes such as I have described in 38-49, supra.

51. During the trial of Dr. MacDonald's case, the defense entered into a stipulation concerning the testimony of James Frier. Prior to entering into this stipulation, it was represented to me by prosecutor Brian M. Murtagh that Mr. Frier, if called by the government, would testify that:

(a) he had examined multicolored strands of yarn removed from the night stand in the master bedroom of the MacDonald home (Government trial exhibit 381) and that these yarns microscopically matched a green yarn found on a throw rug in Kristen MacDonald's room; and,

(b) he had examined fibers found within the debris (Government trial exhibit 307) removed from the wooden club murder weapon and determined that fibers removed from the wooden club murder weapon microscopically matched the fibers of the multicolored throw rug that was found at the feet of the body of Colette MacDonald. (Attached hereto as Exhibit 43)

52. Prior to entering into this stipulation concerning Mr. Frier's testimony, I was never informed by Mr. Murtagh or any other government prosecutor that Mr. Frier had discovered the presence of black and green wool fibers on the wooden club murder weapon. Further, I was also not informed by Mr. Murtagh or any other government prosecutor that Mr. Frier or other FBI laboratory personnel had conducted reexaminations of the debris taken from Colette MacDonald's body and the wooden club murder weapon in which the FBI discovered the presence of additional black, green and white wool fibers.

53. If I had been aware of the extent to which the FBI had reexamined various pieces of evidence taken from the crime scene or that Mr. Frier's laboratory notes revealed the presence of black, green and white wool fibers on the body of Colette MacDonald and on the wooden club murder weapon, I would not have agreed to the stipulation. I would have demanded that copies of Mr. Frier's handwritten notes be turned over to the defense and that he appear as a witness so that I could cross-examine him on his findings.

54. Had I been informed that Janice Glisson had discovered and documented in her handwritten laboratory notes the presence of blond synthetic hair-like fibers, some 22 inches in length, on the clear-handled hair brush taken from the MacDonald home, I would have demanded that Glisson's handwritten notes be turned over to the defense so that I could cross-examine her on her findings.

55. In both instances involving Frier and Glisson's findings, I was either directly or indirectly misled by the government by virtue of its representations to me -- and often to the Court as well -- and its failure to turn over these exculpatory documents that would have allowed me to follow the course of action described above.


Sworn to before me this 13 day of October, 1990.

James C. Talley, Notary public

My commission expires May 25, 1993.

Exhibit #1:	April 8, 1975: Motion for Discovery and Inspection of Documents
Exhibit #2:	April 25, 1975: Government's Response to Motion for Discovery and Inspection of Documents
Exhibit #3:	May 2, 1975: Memorandum in Support of Defendant's Motion for Discovery and Inspection of Documents
Exhibit #4:	May 2, 1975: Amendment to Defendant's Motion for Discovery and Inspection of Documents
Exhibit #5:	May 7, 1975: Excerpts from Hearing Upon Motions of Defendant re: Discovery and Inspection of Documents
Exhibit #6:	July 28, 1975: Order on Defendant's Remaining Pretrial Motions
Exhibit #7:	November 4, 1975: Letter to Brian Murtagh from Michael Malley re: Chain of Custody
Exhibit #8:	November 9, 1975: Defendant's Proposed Stipulation re: Chain of Custody and Witnesses
Exhibit #9:	November 11, 1975: Defendant's Acknowledgment of Documents Received
Exhibit #10:	November 11, 1975: Letter to Brian Murtagh from Bernard Segal re: Receipt of Grand Jury Testimonies
Exhibit #11:	Circa Nov. 13, 1975: Letter to Bernard Segal from Brian Murtagh re: Agreement to stipulate to the chain of custody in return for advance access to Jencks Act materials
Exhibit #12:	November 17, 1975: Letter to Brian Murtagh from Bernard Segal re: Receipt of Evidentiary Materials
Exhibit #13:	November 24, 1975: Letter to Bernard Segal from Brian Murtagh re: Jencks Act materials
Exhibit #14:	December 4, 1975: Letter to Brian Murtagh from Bernard Segal re: Jencks Act materials
Exhibit #15:	January 22, 1976: Letter to Brian Murtagh from Bernard Segal re: Proposed stipulation to the chain of custody
Exhibit #16:	April 23, 1979: Motion of Defendant to Compel Production of Tangible Objects
Exhibit #17:	April 23, 1979: Unsigned Memorandum in Support of Defendant's Motion to Compel Production of Tangible Objects
Exhibit #18:	May 10, 1979: Excerpt from Hearing on Motions
Exhibit #19:	May 24, 1979: Letter to Judge Dupree from Bernard Segal re: Conflict of interest of expert witnesses
Exhibit #20:	July 6, 1979: Government Motion requesting an order to allow Jeffrey MacDonald to examine blood stains and fibers, subject to conditions
Exhibit #21:	July 11, 1979: Order allowing Jeffrey MacDonald to examine blood stains and fibers, subject to conditions
Exhibit #22:	June 13, 1979: Motion of Defendant for Pretrial Discovery
Exhibit #23:	June 13, 1979: Motion of Defendant for Pretrial Conference
Exhibit #24:	July 14, 1979: Excerpt from Pretrial Conference
Exhibit #25:	July 16, 1979: Memorandum of Law in Support of Defendant's Motion for Pretrial Discovery
Exhibit #26:	August 6, 1979: Defendant's Request to the U.S. Attorney For Production Of Jencks Act And Brady Material
Exhibit #27:	August 20, 1979: Jeffrey MacDonald's Motion to Dismiss the Indictment for Failure to Disclose Brady Materials
Exhibit #28:	Aug. 21, 1979: Comment by Judge Dupree during testimony of James Williams
Exhibit #29:	Handwritten laboratory notes of CID laboratory technician Janice S. Glisson which reference her findings of blond synthetic hair-like fibers on a clear-handled hairbrush (designated by the CID as Exhibit "K")
Exhibit #30:	Handwritten inventory notes and laboratory notes of FBI lab technicians James Frier and Kathy Bond, which document the existence of black, green, and white wool fibers found in debris taken from the body of Colette MacDonald (designated by the FBI as exhibits Q-88 and Q-100) and the wooden club murder weapon (designated by the FBI as exhibit Q-89)
Exhibit #31:	March 14, 1979: FBI Lab Results
Exhibit 32:	Handwritten laboratory notes of Army CID laboratory technician Dillard O. Browning, which document the existence of fibers within the debris taken from underneath the body of Colette MacDonald (designated by the CID as Exhibit E-303) that did not have the blue pajama top as their source
Exhibit 33:	Handwritten laboratory notes that were provided under the Freedom of Information Act to Dr. MacDonald's attorney, Anthony P. Bisceglie, by former FBI lab technician Paul M. Stombaugh
Exhibit 34:	Laboratory notes of CID laboratory technician Dillard O. Browning, concerning his examination of debris (designated by the CID as exhibit E-211) taken from a blue sheet that was found on the floor of the master bedroom
Exhibit 35:	Handwritten laboratory notes of CID laboratory technician Dillard O. Browning, concerning another examination of the debris taken from the blue sheet (the blue sheet itself having been designated by the CID as exhibit D-211), which document the presence of a pubic hair within the debris taken from the sheet
Exhibits 36-37:	Handwritten laboratory notes of CID lab technician Dillard O. Browning, which document the existence of a human hair found in debris taken from the bedding of Kimberly MacDonald (designated by the CID as Exhibit E-124)
Exhibit 38:	Handwritten laboratory notes that were provided under the Freedom of Information Act to Dr. MacDonald's attorney, Anthony P. Bisceglie, by former FBI lab technician Paul M. Stombaugh
Exhibits 39-41:	Handwritten laboratory notes of CID lab technician Dillard O. Browning, which document the existence of a human hair found in the debris taken from the bedspread on Kristen MacDonald's bed (designated by the CID as Exhibit E-52NB), that did not match hair samples taken from Dr. MacDonald
Exhibit 42:	Limited copies of handwritten notes that FBI laboratory technician Paul M. Stombaugh brought with him to the stand when he testified
Exhibit 43:	Reference to stipulation that if called to testify at trial, James Friar would testify that he examined fibers found within the debris (Government trial exhibit 307) removed from the wooden club murder weapon and determined that fibers removed from the wooden club murder weapon microscopically matched the fibers of the multicolored throw rug that was found at the feet of the body of Colette MacDonald