Article 32 Hearing
Volume 1
July 7, 1970
Discussion
(The hearing reconvened at 0830 hours, 7 July 1970.)
COLONEL ROCK: The investigation will come to order. Let the record reflect that the persons present at the closing of the investigation yesterday are present this morning with the exception of Mr. Eisman who is temporarily out of the room.
Yesterday at the conclusion we were recessed for the purpose of counsel for the accused contacting appropriate authorities to try and get an exception to the Army Regulation allowing the hearing to be open to the public. At this time, what does the counsel for the accused have to state?
MR. SEGAL: May it please the investigating officer. I want to report that yesterday afternoon following the adjournment that was granted in this matter, that a number of steps were taken by counsel for Captain MacDonald. Among those steps, Major General Hodson, the Judge Advocate General of the Army, was spoken to by myself with regards to this matter. At his suggestions following the conversation with him, calls were placed to Major General Tolson and subsequently to Colonel Lennon, the staff Judge Advocate General, as well as other people whose contact at this point doesn't seem to be relevant. The result of those conversations, sir, Colonel Lennon prepared and caused to have sent last night, at approximately 1800 hours a telegram to the Department of the Army Judge Advocate General's Office, in which it was represented to The Judge Advocate General that the counsel for the accused wished to have a waiver of the provisions of AR 346-60. That was done; of course, even though we had represented to all the parties I have mentioned before that we did not believe in fact the AR covered this proceeding. But in the interest of expedition, the message was sent on the basis of a request from us that the provision be waived and the hearing be held open. In fact -- in view of the fact that the telegram did not leave until 1800 hours, and that it is fair to assume there was nobody in the Judge Advocate General's Office at Department of the Army, to receive it or decide at that time, it is my request at this time that we adjourn these proceedings for at least the morning subject to our being able to contact the investigating officer and advise how soon we may expect an answer from Department of the Army, and whether we may expect one at all this morning. I would say it is our reasonable estimation that we have a right to expect an answer in this regard in the early part of the day, but we do feel that it will be undesirable and perhaps prejudicial to Captain MacDonald, the accused, in this case, to go forward in these proceedings while there has been no decision made on this request that was forwarded so late last night. It seems to me the steps, because we have taken a certain amount of time to resolve this question of the accused's right to have an open Article 32 hearing, that in the interest of justice and in the interest of fairness we could adjourn this matter for a few hours longer, subject of course, to our ability to contact the investigating officer as soon as we receive an answer one way or another.
COLONEL ROCK: I am prepared to grant your request with the assumption that if we have not heard by 1330, that is 1:30 p.m. this afternoon, that we will proceed at that time. In other words, no further delays in this matter.
MR. SEGAL: I understand your position, sir, and I assume that you will be directing that the proceedings go forward at that time.
COLONEL ROCK: Affirmative. Is that satisfactory?
MR. SEGAL: We understand the position and we are prepared to proceed under whatever instructions you are going to issue in this matter.
COLONEL ROCK: And through my legal advisor I will be available any time prior to that time in the event a decision is made.
These proceedings will be adjourned until 1330 or earlier if a decision is received.
(The hearing adjourned at 0838, 7 July 1970.)
(The hearing reconvened at 1330 hours, 7 July 1970.)
COLONEL ROCK: The hearing will come to order.
MR. SEGAL: May it please the investigating officer, the time is now 1:32 or rather 1332 hours, and counsel for the accused has not at this time received any communication from either the convening Authority or from the Staff Judge Advocate General or any of the other persons who have been contacted in regard to our request to waive or to not apply the provisions of AR 345-60, which would require these proceedings by that waiver to be open to the members of the family, friends, public and the press. In the absence of having received such a reply, sir, it is our request that these proceedings be adjourned until further notice for two purposes. First of all, for the purpose of awaiting a response, either affirmative, negative or otherwise, from The Judge Advocate General's office in Washington; and secondly to enable counsel for the accused, sir, to file an appropriate injunctive action with the United States Court of Military Appeals in Washington, D.C., asking that these proceedings be adjourned until such time as authority is given for these proceedings to be held in open fashion.
We would, of course, proceed to file such pleading promptly with the court and would not cause needless delay, but I would believe it would require at least an adjournment of two days to facilitate the filing of those pleadings. I would hope that perhaps before that time, we might receive a reply from the Department of the Army, The Judge Advocate General's office.
COLONEL ROCK: Your request has been noted but I reiterate that the hearing will continue as originally scheduled for 1330 today, and I can assure you, as has been indicated previously, that all of the substantial rights of the accused will be observed and this will be a fair hearing. I believe at this time that counsel for the government has a request.
CPT SOMERS: Yes, sir. At this time counsel for the government would request that this hearing not proceed on the day of the 8th of July, for the reason that the government counsel's presence is required in Federal District Court, and request that when we conclude today that we adjourn until 8:30 on the morning of the 9th of July.
COLONEL ROCK: Does counsel for the accused have a statement?
MR. SEGAL: Yes, sir. Colonel Rock, I would respectfully object to adjournment for that purpose. The proceedings to which Captain Somers refers to, of course, sir, is a certain action that was brought by the accused in this case, among others, the convening authority of this court-martial, as well as other persons. It is our desire, of course, to pursue the remedies that we have requested the Federal Court grant us, but it is our desire and intention that these proceedings go forward and that at this time we do not see the necessity for the accused himself to be present at those proceeding in Clinton, North Carolina, since there is no assurance that there will be a fact hearing in that case. I am advised that the government has already assigned two other counsels; I believe Captain Marchetti and another counsel to assist the United States Attorney for the Eastern District of North Carolina. It seems to me that there is an imminent number of lawyers available, and that the prosecution in this case, if at all feasible, should go forward. I would think that counsel for the government, being assisted by Captain Thompson, who has been involved in the prosecution for quite some time, we have reason to believe that Captain Thompson is quite familiar with the evidence in this case if that evidence should ever become an issue in the case in the Federal Court which we do not believe it would be, and that in view of the fact that the government would have at least two attorneys available, one of them could go to Clinton for the hearing and one of them could be here, that it would be desirable, sir, to proceed these hearings. I, myself had planned on being present at these proceedings with Mr. Eisman asking leave of the court to be excused to be in Clinton tomorrow. We would therefore make up for some of the time that has been unavoidably lost because of the change in procedure as to whether these hearings should be open or not and it is our desire to the extent it is consistent with fairness to all sides that these hearings go along as expeditiously on as much a day by day basis, at least for the balance of this week, as can possibly arranged.
COLONEL ROCK: Does counsel for the government have any kind of argument?
CPT SOMERS: No, sir. It is the judgment of the government that the presence of the government counsel at that hearing is necessary. For what it is worth, it is also the information of the government that Captain Thompson will be in a general court-martial tomorrow and will not be available to go anyway. We request, again, a delay.
COLONEL ROCK: I'd like to ask counsel for the government what will be your specific duties reference this matter in Clinton court tomorrow?
CPT SOMERS: Twofold, sir. One, I have done much of the research in the military law which was necessary for this hearing; and, two, although it is not intended to be evidentiary or to take evidence, should further evidence regarding anything involving this hearing be necessary I would be the only possible source of that information for the government.
MR. SEGAL: Col. Rock, if I may be heard, sir.
While I don't presume to judge in advance what Chief Judge Butler is going to do tomorrow, it is apparent that the government has filed an answer to the complaint that we filed, and that perhaps the largest portion of that answer relates to whether the District Court has any jurisdiction whatsoever to hear this case. I would say to you, sir, that in my best judgment as a lawyer, that the chances are almost nil that any evidentiary hearing will be heard tomorrow by Judge Butler; that essentially what I think we can look forward to, and what we certainly anticipate at the present time, is legal argument which requires no testimony by anyone, but only presentation of authorities and cases to the court, indicating whether or not there is an issue which the Federal District Court may now step into, the independency of the court-martial proceedings. As a matter of fact, the accused has the burden in that case, and granted, is not prepared to put on any evidence at this time for the reason, as we see the government's answer, we are to be in a position of having to deal mostly with legal problems tomorrow; and we have discussed this matter also with our local counsel, Mr. Nance, who is an experienced attorney and a member of the District Court, and who knows the court's operation quite well. In discussing this with Mr. Nance, he, I think it can be fairly said, is likewise of the opinion that we would be essentially engaged in legal arguments and discussion of legal issues to determine whether the court would have authority to proceed in this case; and only after all these rather complex jurisdictional questions have been dealt with will we get around to the question of a hearing, and I would think that the government itself is not to produce the numerous witnesses it would have to answer the allegation. We have, in fact, spoken with the various government witnesses that we know would have to be called and none of them are on call even for tomorrow and were in fact asking counsel for the accused whether we had any time tables when they might be expected in these proceedings. So I would think it would be really, although desirable under different circumstances, undesirable in this case where we have a week initially set aside to get testimony on, to lose another day of this time for that reason. If I though the government was short handed of counsel I would not in anyway resist it but the government should be represented. However, I think that the availability of the United States Attorney and his assistants and of Captain Marchetti would be I think more than adequate representation in this case for the government's position.
CPT SOMERS: May I respond to that, sir?
COLONEL ROCK: Yes, sir.
CPT SOMERS: I think that one of the key words of the defense counsel has been essentially, or words that are similar, mostly and probably and in my best judgment. The defense counsel cannot tell you that there will be no question of fact which will rise. He assures you it will probably not, but that's the best he can do. We do not feel that this is sufficient; the possibility that a factual issue may arise is in the judgment of the government is sufficient to require that the source of information be available. The government also sees some incongruity in the position of the defense between whether it does want a delay or it does not want a delay, but we'll pass over that. Thank you.
MR. SEGAL: May I suggest perhaps a pragmatic resolution? I don't want to prolong this, Colonel. I'm sure you have as much advice or help you're going to get this afternoon, but perhaps we could continue with these proceeding tomorrow, and if it should develop that we are needed, any one of us or Captain Somers, it is thirty miles from here to Clinton and then we would receive a phone call and we could arrange for possible adjournment. But in the face it is only a possibility I would hate to see us lose that time if we can possibly avoid that.
COLONEL ROCK: When does the hearing occur tomorrow?
CPT SOMERS: Ten o'clock, sir.
COLONEL ROCK: In the morning. Do you have any feeling for how long the hearing will last?
CPT SOMERS: The best judgment I can make from what I've been told is perhaps until one o'clock, perhaps longer.
COLONEL ROCK: Reference the request, we will continue tomorrow at eight-thirty as originally scheduled, however if during the course of the hearings in Clinton it becomes evident that counsel for the government, Captain Somers, presence is required I will then at that time adjourn to allow his presence at that hearing.
CPT SOMERS: Yes, sir.
COLONEL ROCK: The investigation will come to order. Let the record reflect that the persons present at the closing of the investigation yesterday are present this morning with the exception of Mr. Eisman who is temporarily out of the room.
Yesterday at the conclusion we were recessed for the purpose of counsel for the accused contacting appropriate authorities to try and get an exception to the Army Regulation allowing the hearing to be open to the public. At this time, what does the counsel for the accused have to state?
MR. SEGAL: May it please the investigating officer. I want to report that yesterday afternoon following the adjournment that was granted in this matter, that a number of steps were taken by counsel for Captain MacDonald. Among those steps, Major General Hodson, the Judge Advocate General of the Army, was spoken to by myself with regards to this matter. At his suggestions following the conversation with him, calls were placed to Major General Tolson and subsequently to Colonel Lennon, the staff Judge Advocate General, as well as other people whose contact at this point doesn't seem to be relevant. The result of those conversations, sir, Colonel Lennon prepared and caused to have sent last night, at approximately 1800 hours a telegram to the Department of the Army Judge Advocate General's Office, in which it was represented to The Judge Advocate General that the counsel for the accused wished to have a waiver of the provisions of AR 346-60. That was done; of course, even though we had represented to all the parties I have mentioned before that we did not believe in fact the AR covered this proceeding. But in the interest of expedition, the message was sent on the basis of a request from us that the provision be waived and the hearing be held open. In fact -- in view of the fact that the telegram did not leave until 1800 hours, and that it is fair to assume there was nobody in the Judge Advocate General's Office at Department of the Army, to receive it or decide at that time, it is my request at this time that we adjourn these proceedings for at least the morning subject to our being able to contact the investigating officer and advise how soon we may expect an answer from Department of the Army, and whether we may expect one at all this morning. I would say it is our reasonable estimation that we have a right to expect an answer in this regard in the early part of the day, but we do feel that it will be undesirable and perhaps prejudicial to Captain MacDonald, the accused, in this case, to go forward in these proceedings while there has been no decision made on this request that was forwarded so late last night. It seems to me the steps, because we have taken a certain amount of time to resolve this question of the accused's right to have an open Article 32 hearing, that in the interest of justice and in the interest of fairness we could adjourn this matter for a few hours longer, subject of course, to our ability to contact the investigating officer as soon as we receive an answer one way or another.
COLONEL ROCK: I am prepared to grant your request with the assumption that if we have not heard by 1330, that is 1:30 p.m. this afternoon, that we will proceed at that time. In other words, no further delays in this matter.
MR. SEGAL: I understand your position, sir, and I assume that you will be directing that the proceedings go forward at that time.
COLONEL ROCK: Affirmative. Is that satisfactory?
MR. SEGAL: We understand the position and we are prepared to proceed under whatever instructions you are going to issue in this matter.
COLONEL ROCK: And through my legal advisor I will be available any time prior to that time in the event a decision is made.
These proceedings will be adjourned until 1330 or earlier if a decision is received.
(The hearing adjourned at 0838, 7 July 1970.)
(The hearing reconvened at 1330 hours, 7 July 1970.)
COLONEL ROCK: The hearing will come to order.
MR. SEGAL: May it please the investigating officer, the time is now 1:32 or rather 1332 hours, and counsel for the accused has not at this time received any communication from either the convening Authority or from the Staff Judge Advocate General or any of the other persons who have been contacted in regard to our request to waive or to not apply the provisions of AR 345-60, which would require these proceedings by that waiver to be open to the members of the family, friends, public and the press. In the absence of having received such a reply, sir, it is our request that these proceedings be adjourned until further notice for two purposes. First of all, for the purpose of awaiting a response, either affirmative, negative or otherwise, from The Judge Advocate General's office in Washington; and secondly to enable counsel for the accused, sir, to file an appropriate injunctive action with the United States Court of Military Appeals in Washington, D.C., asking that these proceedings be adjourned until such time as authority is given for these proceedings to be held in open fashion.
We would, of course, proceed to file such pleading promptly with the court and would not cause needless delay, but I would believe it would require at least an adjournment of two days to facilitate the filing of those pleadings. I would hope that perhaps before that time, we might receive a reply from the Department of the Army, The Judge Advocate General's office.
COLONEL ROCK: Your request has been noted but I reiterate that the hearing will continue as originally scheduled for 1330 today, and I can assure you, as has been indicated previously, that all of the substantial rights of the accused will be observed and this will be a fair hearing. I believe at this time that counsel for the government has a request.
CPT SOMERS: Yes, sir. At this time counsel for the government would request that this hearing not proceed on the day of the 8th of July, for the reason that the government counsel's presence is required in Federal District Court, and request that when we conclude today that we adjourn until 8:30 on the morning of the 9th of July.
COLONEL ROCK: Does counsel for the accused have a statement?
MR. SEGAL: Yes, sir. Colonel Rock, I would respectfully object to adjournment for that purpose. The proceedings to which Captain Somers refers to, of course, sir, is a certain action that was brought by the accused in this case, among others, the convening authority of this court-martial, as well as other persons. It is our desire, of course, to pursue the remedies that we have requested the Federal Court grant us, but it is our desire and intention that these proceedings go forward and that at this time we do not see the necessity for the accused himself to be present at those proceeding in Clinton, North Carolina, since there is no assurance that there will be a fact hearing in that case. I am advised that the government has already assigned two other counsels; I believe Captain Marchetti and another counsel to assist the United States Attorney for the Eastern District of North Carolina. It seems to me that there is an imminent number of lawyers available, and that the prosecution in this case, if at all feasible, should go forward. I would think that counsel for the government, being assisted by Captain Thompson, who has been involved in the prosecution for quite some time, we have reason to believe that Captain Thompson is quite familiar with the evidence in this case if that evidence should ever become an issue in the case in the Federal Court which we do not believe it would be, and that in view of the fact that the government would have at least two attorneys available, one of them could go to Clinton for the hearing and one of them could be here, that it would be desirable, sir, to proceed these hearings. I, myself had planned on being present at these proceedings with Mr. Eisman asking leave of the court to be excused to be in Clinton tomorrow. We would therefore make up for some of the time that has been unavoidably lost because of the change in procedure as to whether these hearings should be open or not and it is our desire to the extent it is consistent with fairness to all sides that these hearings go along as expeditiously on as much a day by day basis, at least for the balance of this week, as can possibly arranged.
COLONEL ROCK: Does counsel for the government have any kind of argument?
CPT SOMERS: No, sir. It is the judgment of the government that the presence of the government counsel at that hearing is necessary. For what it is worth, it is also the information of the government that Captain Thompson will be in a general court-martial tomorrow and will not be available to go anyway. We request, again, a delay.
COLONEL ROCK: I'd like to ask counsel for the government what will be your specific duties reference this matter in Clinton court tomorrow?
CPT SOMERS: Twofold, sir. One, I have done much of the research in the military law which was necessary for this hearing; and, two, although it is not intended to be evidentiary or to take evidence, should further evidence regarding anything involving this hearing be necessary I would be the only possible source of that information for the government.
MR. SEGAL: Col. Rock, if I may be heard, sir.
While I don't presume to judge in advance what Chief Judge Butler is going to do tomorrow, it is apparent that the government has filed an answer to the complaint that we filed, and that perhaps the largest portion of that answer relates to whether the District Court has any jurisdiction whatsoever to hear this case. I would say to you, sir, that in my best judgment as a lawyer, that the chances are almost nil that any evidentiary hearing will be heard tomorrow by Judge Butler; that essentially what I think we can look forward to, and what we certainly anticipate at the present time, is legal argument which requires no testimony by anyone, but only presentation of authorities and cases to the court, indicating whether or not there is an issue which the Federal District Court may now step into, the independency of the court-martial proceedings. As a matter of fact, the accused has the burden in that case, and granted, is not prepared to put on any evidence at this time for the reason, as we see the government's answer, we are to be in a position of having to deal mostly with legal problems tomorrow; and we have discussed this matter also with our local counsel, Mr. Nance, who is an experienced attorney and a member of the District Court, and who knows the court's operation quite well. In discussing this with Mr. Nance, he, I think it can be fairly said, is likewise of the opinion that we would be essentially engaged in legal arguments and discussion of legal issues to determine whether the court would have authority to proceed in this case; and only after all these rather complex jurisdictional questions have been dealt with will we get around to the question of a hearing, and I would think that the government itself is not to produce the numerous witnesses it would have to answer the allegation. We have, in fact, spoken with the various government witnesses that we know would have to be called and none of them are on call even for tomorrow and were in fact asking counsel for the accused whether we had any time tables when they might be expected in these proceedings. So I would think it would be really, although desirable under different circumstances, undesirable in this case where we have a week initially set aside to get testimony on, to lose another day of this time for that reason. If I though the government was short handed of counsel I would not in anyway resist it but the government should be represented. However, I think that the availability of the United States Attorney and his assistants and of Captain Marchetti would be I think more than adequate representation in this case for the government's position.
CPT SOMERS: May I respond to that, sir?
COLONEL ROCK: Yes, sir.
CPT SOMERS: I think that one of the key words of the defense counsel has been essentially, or words that are similar, mostly and probably and in my best judgment. The defense counsel cannot tell you that there will be no question of fact which will rise. He assures you it will probably not, but that's the best he can do. We do not feel that this is sufficient; the possibility that a factual issue may arise is in the judgment of the government is sufficient to require that the source of information be available. The government also sees some incongruity in the position of the defense between whether it does want a delay or it does not want a delay, but we'll pass over that. Thank you.
MR. SEGAL: May I suggest perhaps a pragmatic resolution? I don't want to prolong this, Colonel. I'm sure you have as much advice or help you're going to get this afternoon, but perhaps we could continue with these proceeding tomorrow, and if it should develop that we are needed, any one of us or Captain Somers, it is thirty miles from here to Clinton and then we would receive a phone call and we could arrange for possible adjournment. But in the face it is only a possibility I would hate to see us lose that time if we can possibly avoid that.
COLONEL ROCK: When does the hearing occur tomorrow?
CPT SOMERS: Ten o'clock, sir.
COLONEL ROCK: In the morning. Do you have any feeling for how long the hearing will last?
CPT SOMERS: The best judgment I can make from what I've been told is perhaps until one o'clock, perhaps longer.
COLONEL ROCK: Reference the request, we will continue tomorrow at eight-thirty as originally scheduled, however if during the course of the hearings in Clinton it becomes evident that counsel for the government, Captain Somers, presence is required I will then at that time adjourn to allow his presence at that hearing.
CPT SOMERS: Yes, sir.