Article 32 Hearing
Volume 2

July 8, 1970

Specialist Fourth Class Kenneth Mica (MP)

(The hearing reconvened at 0832 hours, 8 July 1970.)

COL ROCK:  This investigation will come to order.  Let the record reflect that the parties that were present yesterday are currently in the room with the exception of Mr. Eisman and Lt. Malley.  The witness, Specialist Four Mica is present and I remind you that you are under oath, Specialist Mica.  At the conclusion yesterday, the counsel for the government had concluded the introduction of his evidence through Specialist Four Mica.  You have no further evidence to present.  Is that correct?

CPT SOMERS:  I am through with my direct examination.

COL ROCK:  All right, counsel for the accused will proceed.

Questions by MR. SEGAL:
Q  Specialist Mica, may I ask whether this patrol number 33 that you were operating on the morning of February 17th was a patrol that you operated alone or together with another policeman?
A  No, sir, I was with a partner.
Q  And your partner was who on that particular morning?
A  Specialist Four Morris.
Q  Morris?
A  Yes, sir.
Q  And that was the ordinary method of patrolling with a pair of military policemen.  Is this correct?
A  (Witness nodded in the affirmative.)
Q  When you arrived at the Castle Street address I understood your testimony yesterday, that there was at least three other military vehicles there?
A  Yes, sir.
Q  And is it fair to say that from the number of vehicles and the ordinary manning of those vehicles that there was at least six other MP's before you and Specialist Morris arrived?
A  Yes, sir.
Q  Now what time did you start your patrol duties on that particular evening?  The evening before, February 16th.
A  We started at 2330 hours.
Q  On February 16th?
A  Yes, sir.
Q  And at that time you commenced the patrol of the Anzio and Corregidor Court area.  Is that correct?
A  Yes, sir.
Q  Now, how did you come to pass by 544 Castle Drive during your patrol?
A  Well, sir, the patrol, all we do is just drive up and down through the housing area, up and down the street answering calls we might get over in that area.  We had one call earlier in the evening on North Dougherty.  We went to see a Captain over there who was having trouble with his oil burner.  But normally we just ride up and down the streets.
Q  There is not a fixed pattern, is there, for the running of the streets in these two residential areas?
A  No, sir.
Q  So that when you say that you passed by 544 Castle Drive a number of times, was there any way of your having an accurate count of how often you passed it between 2330 hours on February 16th and somewhere close to four o'clock a.m. on February 17th?
A  No, sir, we don't keep a record.
Q  But you are under the impression though that you had passed it several times?
A  Yes, sir.
Q  Do you know when the last time it was that you had been past 544 Castle Drive prior to proceeding there pursuant to the call that brought you inside the MacDonald house?
A  Yes, sir, we had been past there approximately thirty-five to forty-five minutes immediately preceding the call.
Q  And how did you determine that?  That that was the time that you passed that address?
A  Well, after we got the call, after I thought back on it, it didn't seem more than an hour.  It seemed close to an hour, but I don't think it was any more than that.
Q  I'm not entirely sure that I follow you.  It didn't seem more than an hour before the event?
A  Before we were dispatched to 544 Castle Drive.
Q  So are you saying to us that you believe that you were past the 544 Castle Drive somewhere between thirty minutes to an hour prior to going there on this last occasion?  You tell me how you fixed the time.  I'm not at all certain about that.
A  Okay, sir.  I arrived at 544 Castle Drive approximately 0350 hours.  I would say I'd been past the house either on Castle Drive or on North Dougherty, which is an intersecting street, within the last thirty-five to forty-five minutes before we were dispatched to 544.
Q  And that was just on a routine patrol of the streets that you had made the prior pass on either Dougherty or Castle Drive?
A  Yes, sir.
Q  Now Specialist Mica, do you have any recollection at this time as to who the other military policemen were that you observed on the front steps of the MacDonald house when you and Specialist Morris arrived?
A  Yes, sir, there was Lieutenant Paulk, his driver, Sergeant Tevere was there, Sergeant Hageny, Specialist Williams, myself and my partner, and I believe there was one other there, but I don't remember who it was.
Q  How did you actually get up the front steps of the MacDonald house before Sergeant Tevere came and made some remarks about getting medical help there?
A  Yes, sir, I was standing outside the house at the front door.  There were already five or six people up there knocking on the door.  And I said to my partner, I said, "Well, let's go.  It must be a regular disturbance."  And I was about to leave.
Q  Did you observe any lights coming from the MacDonald house at that point?
A  Yes, sir.  You could see that there was some kind of light inside, see through the front window, but exactly where it was, I don't know.
Q  And you say from the front window, that means a light emanating from some place in or about the living room area?
A  Somewheres around there, yes.
Q  When you ultimately got inside the house and went to the living room area, did you ever see where the light was coming from?
A  I believe it was coming from the dining room kitchen area, sir.
Q  And in fact you don't recall seeing any light on in the living room at that time?
A  No, sir, I don't remember.
Q  Now you went around, after Sergeant Tevere made the request to get help from the Womack Army Hospital, to the rear of this house and came in a door.  Is that correct?
A  Yes, sir.
Q  And did you -- did that door lead you into what has been generally described as the utility room of the house?
A  Yes, sir.
Q  What was the position of the solid door, wooden door leading from the outside to the inside of this premises?  Was it open entirely or partially open?
A  Well, Sergeant Tevere was ahead of me.  I don't know if he opened the door on the way but when I saw it it was at least three-quarters open.
Q  You were able to pass by and Sergeant Tevere was able to pass by that door without further opening?
A  I didn't touch it, sir.  I don't know if Sergeant Tevere did.
Q  At that point you entered the house, I gather, and you observed the two bodies on the floor in the master bedroom?
A  Yes, sir.
Q  Now, if you could, please, could you tell us something about the body of Mrs. MacDonald in particular with reference to the fact as to whether any portion of her body, other than the lower part of her legs and the lower part of her arms, any other portions were exposed, that was not covered by clothing?
A  Yes, sir.  Her stomach area, I would say from, her stomach area from below her breast to approximately her navel was exposed.  Also a portion of her left breast was exposed.
Q  Now at any time while you were in the house did you do anything to disturb the clothing or the coverage over Mrs. MacDonald?
A  No, sir.
Q  If I may, at this time I want to show you two photographs that have been supplied to the defense by the government.  I will show them to the court first.

(The two photographs were examined by Col Rock and CPT Somers.)

Q  I will show you first the photograph that we will tentatively identify as -- would that be 3, sir?

COL ROCK:  That would 5.

Q  I show you photograph 5 --

COL ROCK:  I assume you mean Accused Exhibit.

Q  And ask you whether you can describe what appears in that photograph as has been supplied by the government in this case?
A  Is there anything specific that you want me to describe, sir?
Q  Well, let me put it this way.  Does this photograph show the position relative to the bed and certain other furniture in the master bedroom of the MacDonald house, and show the position of Mrs. MacDonald on the floor as you recall seeing her when you went into the house?
A  Yes, sir.
Q  Now, I show you a second photograph which we will mark as Accused Exhibit Number 6 for identification only and ask you whether this is another view of the same bedroom taken by the photographer, but at a different angle but likewise showing the position of the body of Mrs. MacDonald on the floor?

CPT SOMERS:  I object.  The defense counsel has every right to lead the witness, however, to give complete narrative description that he wants from a witness is, I think, going too far.

MR. SEGAL:  Sir, it seems to me it is merely for the purpose of getting to the heart of the question.  The photographs speak for themselves.  I can't possibly distort them in any way that this court would not be aware of.

COL ROCK:  The observation of the government is noted and it is recognized that the counsel for the accused must set the scene for the specific answer but please be very careful in leading the witness to a conclusion or an answer and try to make it as simple and direct as possible.

Q  Now, Specialist Mica, I ask you to look at the photograph, Accused 6; do you observe any difference in the clothing or fabric that appears on the body of Mrs. MacDonald than when you observed when you first entered the house?
A  Yes, sir.
Q  And would you describe to the investigating officer what those differences are?
A  I saw her, Mrs. MacDonald's midriff exposed.
Q  And in this particular photograph, what, if anything, is different in that regard?
A  In this photograph is a white towel, what appears to be a white towel covering up the section that I saw.
Q  Do you have any idea how that towel came to be placed on the body of Mrs. MacDonald?
A  No, sir.
Q  Now, do you observe any difference in terms of the clothing or covering on Mrs. MacDonald's body from A-6?
A  Yes, sir.
Q  Would you describe it?
A  I don't remember this blue piece of cloth here.
Q  Now the blue piece of cloth in this photograph is located over what portion of Mrs. MacDonald's body?
A  Over her, I'd say the area of the lower breast.
Q  Now is there anything else in the photograph marked A-6 that does not appear to be familiar to you as the same scene that you saw when you entered the MacDonald house on the early morning hours of February 17th?
A  No, sir, it seems to be a fair likeness.
Q  Would you be good enough to also examine A-5 at this time and describe for the court if there is any differences in terms of the covering of the body of Mrs. MacDonald?
A  Just the white towel which I don't remember seeing, and also this blue cloth.  I don't remember seeing that.
Q  Is there any question in your mind that you did see in fact Mrs. MacDonald's left breast exposed at the time you entered the master bedroom?
A  No, sir.
Q  Is there any question in your mind that you did see Mrs. MacDonald's midriff section exposed at the time you entered the master bedroom?
A  No, sir.
Q  Now, may I ask who was it that entered the master bedroom first as far as you know?
A  To the best of my knowledge, Sergeant Tevere was right in front of me.
Q  And before you went into the master bedroom, did any other person come from the rear of the MacDonald house to the front where you and the other military policemen were?
A  None that I know of, sir.
Q  To the best of your knowledge, the only person who had preceded the military policemen that you were with into the MacDonald house was Sergeant Tevere?
A  To the best of my knowledge, sir, yes.
Q  And that when you returned with him, Tevere went in ahead of you?
A  Yes, sir.
Q  At about how far ahead of you?  How many steps ahead of you?
A  Well, I was right behind him.  I would say within two to three feet.
Q  And when he came into the master bedroom what did you observe him do?
A  Well, he stopped in the doorway, the archway between the utility room and the master bedroom.  I stopped directly behind him.
Q  And then after you entered the master bedroom what did Sergeant Tevere do?
A  I don't know, sir.  At that time I went over to Captain MacDonald.
Q  At anytime did you observe Sergeant Tevere adjust the coverage of Mrs. MacDonald's body by either rearranging the night clothing she was wearing or placing some other pieces of cloth on or about her body?
A  No, sir, I didn't.
Q  Now when you came in, I gather you examined Captain MacDonald and then made some further investigation of the house.  Am I correct in that regard?
A  Yes, sir.
Q  And that investigation consisted of doing what?
A  After I spoke to Captain MacDonald, he said, "Check my kids. How are my kids?"  I proceeded.  In the hallway, I glanced in the bedroom on the left, walked down a little bit further, glanced in the bedroom on the right, went to the end of the hallway, just briefly glanced around the living room, dining room area, turned around and went back to Captain MacDonald.
Q  Had any other military policeman preceded you down that hallway that you know of?
A  Yes, sir, I believe Specialist Williams was already down the hall.
Q  And did you actually see him in or near the living room or dining room area when you got to the end of the hall yourself?
A  No, sir.
Q  Had he returned and gone back to the master bedroom, or some other portion of the house?
A  No, sir.  I bumped into him right near the child's bedroom.
Q  Which one would that be -- as you go down the hallway, the one on the left which is denominated as the front bedroom or the one on the right which is denominated the rear bedroom?
A  Well, sir, I can't say for certain.  I would say probably right between them.  He was sort of standing in the doorway, I mean in the hallway and I pushed past him.
Q  Had you observed Specialist Williams either coming out of or going into either of those two bedrooms when you came across him in the hall?
A  No, sir.
Q  So your only observation was that he was in the hall and you came upon him there in the hall?
A  Yes, sir.
Q  Where did he go when you went further down the hall to the living room?
A  Well, sir, I passed Specialist Williams on my way back from the living room.
Q  On the way back?
A  Yes, sir.
Q  Well, what about Lieutenant Paulk?  What did you observe, if anything, about where he went or what he did?
A  Well, sir, I don't remember seeing him in the house at that time.  I remember passing Specialist Williams in the hall, getting back to Captain MacDonald, kneeling down next to Captain MacDonald, and then after I looked back over my shoulder, I had my back to the doorway, I saw he's been there, but the only one I remember before then was Sergeant Tevere and Specialist Williams.
Q  Now when you went down the hallway toward the living room, can you walk directly into the living room from the hallway?
A  Yes, sir.
Q  Do you have to ascend some stairs?
A  Yes, sir.
Q  How many steps if you recall?
A  I believe it was two steps.
Q  And did you actually physically go into the living room, or did you observe from the steps or the top of the steps?
A  Top of the stairs, sir.
Q  And when you looked into the living room, I believe you were asked yesterday by Captain -- counsel for the government, whether you observed anything in the living room.  Do you recall that?
A  Yes, sir.
Q  And I gather you indicated that you would not have been able under the lighting conditions to have observed anything beyond an eight foot radius from which -- where you were standing?
A  Well, sir, that was with the -- light that was on, I'd say an eight to ten foot area was sufficiently lighted.  I also had my flashlight with me.
Q  Did you shine your flashlight in the bedrooms?
A  I just flashed the light around a couple of times.
Q  Is it fair to say that at that time you were looking for other bodies?
A  Yes, sir.
Q  That was, in fact, your -- the only point of your investigation to determine how many other injured persons there were on the premises?
A  No, sir.
Q  So what was the other purpose?
A  Well, sir, at that point I didn't exactly know what was -- what had happened.  My main point was to look for other people in the house, but I was also looking for just about anything I could find that seemed important.
Q  And you would have been looking for anything unusual that was on the floor or in the hallway?
A  Yes, sir.
Q  And as you stood there at the entry to the living room where the step is, did you observe anything unusual on the floor or -- or about where you were standing?
A  Well, sir, right at the end of the hallway, I believe it was on the top step there was a doll's head laying right in the corner.
Q  A doll's head?
A  Yes, sir.
Q  Was there anything else that you observed at that time aside from the doll's head?
A  There was some type of blanket or quilt or robe, some type of material laying at the foot of the steps.
Q  At the foot of the steps -- you mean actually in the living room?
A  Yes, sir.
Q  Was that doll's head fairly obvious where it was located in the hallway there?
A  Well, I saw it was up against the wall, closest to the front of the house.
Q  If you would be good enough, please to use the chart here on the easel to point out to us where you first observed that head, I think it would be helpful.

(Witness approached Government Exhibit 1.)

A  Well, sir, it was somewhere in the area on the right, right here.
Q  You are indicating near the hallway wall, which has been denominated as the front bedroom.  Is that correct?
A  Yes, sir.
Q  Now, what about -- if you will stand there one second, please, Specialist Mica -- could you indicate to us where you saw this blanket or item of cloth?
A  Yes, sir, it was lying right down in this area right here.
Q  Would you reverse your position so that the court might see where you are indicating?
A  Right down somewhere in this area.
Q  You are indicating at the bottom of the two steps into the living room, are you not, and to the left of any person who would be standing in entry way facing the living room?
A  Yes, sir.
Q  And was that on any furniture or was it on the floor?
A  To the best of my knowledge I believe it was on the floor.
Q  Do you recall -- while you are standing there, one more point -- do you recall any piece of furniture such a sofa being right near along side that wall where you are indicating now?
A  Yes, sir, I do.
Q  Where was that sofa located?
A  The sofa was over in this area right here.
Q  Indicating, running in a north south direction in the living room parallel to the front bedroom wall that divides the living room from that front bedroom.  Is that correct?
A  Yes, sir.

MR. SEGAL:  Thank you very much, Specialist Mica.  You may return, please.

(Witness did as requested.)

Q  Do you remember what the color of that item was that you described as a blanket?
A  I believe it was a red color.
Q  Now I would like to show you another photograph which has been supplied the defense by the government which we identify as Accused Exhibit 7.

(Accused Exhibit 7 was shown to the IO and Captain Somers.)

Q  And ask whether this appears to be familiar to you?  What is the scene depicted in A-7?
A  Yes, sir.
Q  What does it show that you recall?
A  Well, it shows this red thing here, I don't know exactly what it is.  I thought it was more or less down the steps, in front of the stairs.
Q  You are referring now to the item which you identified, I believe, as appearing to be similar to a blanket.  Is that right?
A  Yes, sir.
Q  And that appears to be on what portion of the hallway or the stairs as you see it?
A  It appears to be on the first step and upper portion of the hallway.
Q  Does it appear to be in or about the location, however, in reference to the hallway wall that you described a few minutes ago?
A  Yes, sir.
Q  Now do you observe the furniture in the living room also in this photograph?
A  Yes, sir.
Q  Is that the sofa that you recall seeing in the MacDonald house?
A  Yes, sir.
Q  By the way, can you observe any person or persons in this photograph?
A  Yes, sir.
Q  What can you observe?
A  I believe it is the body of Mrs. MacDonald.
Q  And that as it appears down the hallway in the master bedroom?
A  Yes, sir.
Q  Now on the photograph there can you observe anything that seems unusual to you in accordance with your own particular recollection of what you saw later on on the morning of February 17th?
A  No, sir.
Q  What about the item you see on the left hand end of the sofa?  Can you explain what that appears to be?
A  It appears to be a type of a quilt.
Q  And the color of that as the photo reveals it?
A  The colors seems -- it is a mixture of colors, brown, yellow, purple, green.
Q  Do you recall seeing that particular item on the sofa at that time?
A  Sir, I remember seeing something on the sofa, but to say exactly what it was, I didn't notice.
Q  By the way, do you the doll's head in A-7?
A  No, sir, I don't see it in this picture.
Q  Where would it have been in reference to the blanket or robe in the hallway?  Would you be good enough to turn the picture around and show it to the court so that the investigating officer might see what you --
A  Yes, sir, it was right before the beginning of the blanket or robe, right up next to the molding, sir.
Q  And therefore that photograph does not reveal the doll's head at all?
A  No, sir, not that I can see.
Q  Is it correct to say that the portion of that robe lying on the steps and partially perhaps in the hallway was fairly obvious and you noticed it almost immediately when you came down the end of the hallway prior to entering the living room?
A  No, sir, I -- it could have been there but I didn't take notice of it.
Q  What I am saying is, though, the robe, what you called the blanket anyway, considering the width of the hallway, is there any likelihood as you went down the hallway that morning you would have missed it lying there?
A  No, sir.
Q  After you made these observations in the living room I gather you went immediately back to the master bedroom and there took up the position generally attending Captain MacDonald and observing him?
A  Yes, sir.
Q  Was this done by you as a result of some instruction by someone else?
A  No, sir.
Q  Was there anyone else attending to Captain MacDonald at that time when you went back to the master bedroom?
A  Not that I specifically remember, sir.  There were a group of -- a couple of guys standing around, but no one seemed to be helping.
Q  How many other persons were in the bedroom when you came back?
A  I don't accurately recall, but I'd say three or four.
Q  These were military policemen, I assume?
A  Yes, sir.
Q  Can you determine what, if anything, they were doing specifically at that time when you came back?
A  Well, no, sir, they were just sort of standing around looking.
Q  At that point, what did you observe about the position of Captain MacDonald in regard to Mrs. MacDonald?
A  He was in relatively the same position, except he was more or less on his side, on his back, with his face up.
Q  And his head was then still on Mrs. MacDonald's shoulder at that point?
A  Yes, sir, it was in the -- I'd say in the upper section of her shoulder, her arm.
Q  And what was he doing, if anything at that point?
A  He seemed to be laboring for breath.  He was having a hard time breathing.
Q  And describe at this moment what you did exactly with him in that position.
A  At that point I knelt down between Mrs. MacDonald and Captain MacDonald and started to administer the best first aid I could. Captain MacDonald at this time was mumbling a few phrases.  None of them seemed to be connected.
Q  Those phrases were?
A  "How are my kids?  Check my kids.  They kept saying acid is groovy, kill the pigs, and why did they do this to me."
Q  Then what did you do, or what happened to -- with Captain MacDonald at that juncture?
A  Well, sir, he was, as I said, he was laboring for breath.  He seemed to be cold.  He was shivering quite a bit.
Q  You mean you observed his body shaking in some fashion?
A  Yes, sir.
Q  And you say you observed a fair amount of shivering and shaking of his at that point?
A  Yes, sir.
Q  What about his teeth.
A  Yes, sir, his teeth were chattering.
Q  What else did you observe?  Was his body rigid and tense or was his body flexible and loose at that point?
A  No, sir, he was tightening up quite a bit.
Q  His body was rigid?
A  I don't think you call it muscle spasms, but he seemed to be tightening up as he shook.
Q  I see.  Then what did you do in response after making these observations about Captain MacDonald?
A  Well, Captain MacDonald seemed to be losing consciousness at that time and I turned his head to one side and tried to clean out his mouth to see if he had anything in his mouth.  After that I began to administer mouth-to-mouth.
Q  Did you actually find anything in his mouth at that time, Specialist Mica?
A  No, sir.
Q  Captain MacDonald did, in fact, not lapse into unconsciousness while you were holding on to him?
A  The first time, sir, I believe he did.  If he didn't he came very close to it.
Q  What caused you to think he was unconscious?  His eyes were shut?
A  Well, he was -- as I said -- he was mumbling to me, sort of quivering and his teeth was chattering, then all of a sudden he just seemed -- as though he blacked out.  His eyes closed.  He sort of went limp, and he stopped his moving.
Q  Was that when you applied mouth-to-mouth resuscitation?
A  Yes, sir.
Q  And did he respond quickly to that?
A  I say it was -- well, I'm not for certain that time, because it seemed -- it seemed a lot longer that what it was.
Q  I'm sure it did.
A  Yes, sir.
Q  Now when he -- after you had started the mouth-to-mouth resuscitation, what happened?  Did he open his eyes again?  Did he start speaking again?
A  Yes, sir, after the amount of time, Captain MacDonald sort of pushed me away from him and he coughed a couple of times, and he again tried -- tried to get up, tried to push me away from him.  He says, "I've gotta check my kids.  How are my kids?", and I said to him, "Sir, don't worry.  There are men taking care of them."  Again he started to mumble about "She kept saying acid is groovy, kill the pigs.  Why did they do this to me?"
Q  Did he also ask about his wife at this time?
A  Well, sir, he asked about his wife, but whether it was the first time I knelt down or the second time, I'm not absolutely certain.
Q  Now you say first he pushed you away when you gave him mouth-to-mouth resuscitation, then he tried to get towards his wife or tried to get up?
A  Yes, sir.  When he pushed me away he said, "I've gotta check my wife.  I gotta check my kids."  I tried -- I tried to hold him down.  I didn't want him getting up.  It wouldn't have done any good anyhow.  I just wanted him to lay quiet.  I tried to reassure him that everything was being done that could.
Q  What had you observed about Captain MacDonald's physical injuries, if any, at that time?
A  Sir, he had what appeared to be, at the time, I thought they were scratches.  I'm not absolutely certain -- I think it was on his -- I'm not certain but I think it was on his right shoulder.  He turned around on me a couple of times, but at first they seemed to be maybe an eighth of an inch, quarter of an inch in diameter, as though someone had took little pieces of skin out.  I thought they were scratches at the time, where someone had dug their nails into him.
Q  And removed some of his skin?
A  Yes, sir.
Q  Do you recall how many of those marks appeared on his skin?
A  I believe I saw three or four.
Q  And exactly what portion of the body do you recall?
A  It was on the upper -- sort of on the upper shoulder and towards the chest area.
Q  On the right side?
A  I believe it was, sir, on the right side.  I'm not absolutely certain.
Q  Did you observe any other indications of injury or bruises of any sort?
A  Yes, sir, he had what looked to be a welt on his forehead, sir.
Q  And do you recall on which side of the forehead it was?
A  No, sir, I don't.
Q  Did you observe any other injuries at that time, as you now recall?
A  No, sir.
Q  You mentioned something yesterday about Captain MacDonald saying, "Get a chest tube.  I need a chest tube."
A  Yes, sir.
Q  And I further understood that you did not know what he was referring to at that time?
A  Well, sir, I had a general idea, but I wouldn't say for certain that that's what it was -- what I thought that it was.
Q  Did you understand why he might have been asking for a chest tube at this time?
A  Yes, sir, I had a general idea about that too.
Q  And what was that?
A  Well, I know in certain cases, they use chest tubes for collapsed lungs, when they are having trouble breathing.
Q  At that time, however, you had not observed any injuries on the torso chest area of Captain MacDonald, had you?
A  Just those scratch marks.
Q  On the shoulder?
A  Well, shoulder and chest.

COL ROCK:  I'd like to inject a question.  How was Captain MacDonald dressed at this time?

A  Yes, sir, he had on -- I imagine it was pajama bottoms, blue in color.  He had no tee shirt or top shirt over --

COL ROCK:  The upper torso was bare?

A  Yes, sir.

COL ROCK:  Thank you.

Q  Did you observe whether there was any apparent foreign matter on Captain MacDonald's pajama bottoms?
A  No, sir, I didn't.
Q  Is it fair to say that if there had been a large amount of blood on his pajama bottoms you would have observed it at that time?
A  I believe I would have, yes, sir.
Q  Was there a great deal of blood on or about Captain MacDonald's chest?
A  Well, sir, as I remember, there wasn't that much blood.  I remember some specifically on his face.
Q  What about on his chest though?  Did you observe a great deal of blood on his chest?
A  Not a great deal, no, sir.
Q  Some blood?
A  Yes, sir.
Q  What about his arms?  Did you observe any blood on his arms?
A  I don't remember seeing any, sir.
Q  Now at some time did you have occasion to ask Captain MacDonald anything about the circumstances of how he, his wife and children came to suffer these injuries?
A  Yes, sir.
Q  Can you recall or least indicate to us what part, in chronology of these events that you participated in, did that discussion take place?
A  Right, sir, I believe it was right after I gave him mouth-to-mouth the first time.  I asked him, "Sir, what happened?" and that was it.
Q  And what did Captain MacDonald say, if anything about what had happened?
A  Well, sir, he was still incoherent and he was sort of off on a tangent mumbling about "Check my wife.  Check my kids.  Why did they do this to me?"  But I managed -- I ask him -- I said, "Who did it?" and finally he said, "There were four of them."  And I sort of got him calmed down a little bit.
Q  How did you get him calmed down?  What did you do?
A  Well, sir, I don't know exactly what I did.  I just --
Q  You just talked to him?
A  I was just trying to keep him down, trying to keep him from getting up and trying to reassure him that they were taking care of his kids.
Q  Now when he mentioned that there were four of them, did you ask him -- did he give you any information about those four?
A  Yes, sir.
Q  And did Captain MacDonald manage to give you some facts or details about the persons?
A  Yes, sir.
Q  Could you tell the investigating officer what it was Captain MacDonald told you at that time?
A  Yes, sir.  As far as order goes, I don't know, because it was just a series of unconnected things that Captain MacDonald told me.  I managed to get that there were four of them, one blond female with a big hat and she had a candle.  She kept saying, "Acid is groovy.  Kill the pigs.  Hit him again."   I asked him; I said well, I tried to find out what the others looked like. He said, "three men and one woman, one Negro" and he said, "I think I hit them.  I think I scratched them."  Then again he would be off on a tangent.
Q  Asking about his wife and children?
A  Yes, asking about his wife and children, asking, "Why did they do this?"
Q  Were you able to get any other additional descriptive facts from -- other than the ones you have now told us?
A  No, sir.  Just that it was four persons, one female blond, with a big hat carrying a candle, and also mentioning something about muddy boots.
Q  Muddy boots.
A  Yes, sir.
Q  Are you saying that he was indicating in a fashion of speaking that one of these persons was wearing muddy boots?
A  Yes, sir.
Q  The female -- did he give any description of the type of hat that she was wearing, to you at that time?
A  I believe he described it as a floppy hat.
Q  And did he indicate anything more about the candle that she was carrying, whether it was lit or not?
A  No sir, not that I remember.
Q  What did you do when you got that information from Captain MacDonald?
A  Well, I turned around and at that time Lieutenant Paulk was standing behind me, and I called back to get it over the radio.  I called back -- I said, "There's four of them," and I gave a brief description of what it was.
Q  You were repeating that to Lieutenant Paulk?
A  I believe it was Lieutenant Paulk.  There was a group of people standing behind me but I believe he was the one that was writing it down.
Q  Was Sergeant Tevere there at that time also?
A  I believe so.
Q  What was this group of people doing at this time, at the time you turned and gave this information to them?
A  Most of them was just sort of standing around.
Q  Did anyone acknowledge the fact that you had said there was a group of four of them?
A  I remember someone repeating it, but I don't remember who it was.
Q  How much of the information that Captain MacDonald gave did you repeat to this group of people?
A  I was giving it to them almost word for word what he said.
Q  Were you repeating it as Captain MacDonald was giving it to you, or did you wait until he had given you whatever you could get from him and then repeat it in similar fashion?
A  No, sir, I tried to get as much as I could from him while he was coherent.
Q  And then you proceeded to repeat what you heard from him to the other men?
A  Yes, sir.
Q  And to the best of your recollection, what is it that you told the other MP's in the room about the description?
A  As far as I remember, I turned around and I said, "There were four of them.  One female Caucasian, floppy hat, carrying a candle, muddy boots.  Three males, one Negro and he might possibly have scratches on his face."  And that was it.
Q  And that was the information that you gave at that time?
A  Yes, sir.
Q  Now after you passed that information on back, did anyone do anything that you were able to observe?
A  No, sir, I had -- as I said before -- I had my back to the doorway.  They were standing behind me when I was attending Captain MacDonald.
Q  You said the doorway -- you mean toward the hallway or toward the utility room?
A  Toward the utility room.
Q  So that if anyone had gone out that way you would not have been able to observe them?
A  No, sir.
Q  Did anyone go down the hallway toward the front door and out the front door when you gave that information out?
A  No, sir, I don't remember.  There were people in the master bedroom, a couple of them standing in the doorway and the hallway, I don't know if they did.
Q  Now do you recall when the medical personnel arrived at the MacDonald house?
A  Yes, sir.
Q  Again, if you can give us at what point in the sequence of events as far as you were concerned that took place.
A  Well, sir, after I started to give Captain MacDonald mouth-to-mouth, he blacked out or seemed to lose consciousness at least two or three times.  To me it seemed, again I'm not sure of the time, but it seemed to me about ten to fifteen minutes before Womack arrived.
Q  And so during that period of time that you were waiting for the hospital personnel you had occasion to administer mouth-to-mouth resuscitation to Captain MacDonald on three or more times, I believe you told us?
A  Yes, sir.
Q  And did he have repeated episodes or additional episodes of the shivering of the body?
A  Yes, sir.
Q  And of the teeth chattering?
A  Yes, sir.
Q  And when those episodes started to take place, did his body again seem to stiffen up in some sort of reaction to the shivers and the chattering?
A  Yes, sir.
Q  And while that was going on, while you were waiting for the hospital personnel, did other persons continue to come in and leave the master bedroom?
A  Well, sir, I don't -- I can't say for certain, who did or didn't, but I remember seeing two other people, Specialist Sellick and Specialist Four Demon (phonetic).  I remember seeing Sellick and I told him to get out, as he started to pass me.
Q  You mean he appeared to be shaky about the scene in the bedroom?
A  Yes, sir.
Q  Did Captain MacDonald during this various episode that you are dealing with tell you to leave him and go to see what was happening with the children and to treat them?
A  Yes, sir.
Q  Do you recall his words, or how he said that?
A  Yes, sir. As I was trying to tend to Captain MacDonald, the whole time he was struggling with me, trying to fight me off, trying to get up, and at one time he pushed me off and he said, "Fuck me.  I gotta see my kids. Take care of my kids.  Leave me alone."
Q  To your knowledge did anyone go into the children's bedroom and check the vital life signs of the children?
A  I don't know for certain.
Q  At least nobody said anything in your presence to indicate they had done that?
A  I had heard in the background someone had gone in there.  I remember looking up and I believe it Lieutenant Paulk and he just shook his head.
Q  Well, I am not sure I understand what the significance is of that.
A  Well, I remember someone yelling there are two more down the hall and I looked up at Lieutenant Paulk.
Q  He was standing in the master bedroom at that time?
A  Yes, sir, I believe he was coming down the hallway and into the master bedroom.
Q  Then when you heard that statement and you saw Lieutenant Paulk shake his head in a negative fashion?
A  Yes, sir.
Q  From which you concluded what?
A  I concluded that they were probably dead.
Q  Now the medical personnel arrived ultimately in the master bedroom, what did they do at that time?
A  Well, sir, at that time they brought a stretcher down the hallway.
Q  They came in through the front door?
A  Yes, sir.
Q  And how many medical persons did you identify at that time?
A  I remember seeing, I remember seeing two in the master bedroom with me, and I believe there was at least one more.
Q  In the master bedroom?
A  I believe he might have been in the hallway.
Q  How were those persons dressed as you recall?
A  They had on regular hospital whites, white pants, white jacket.
Q  Now at that point, did they take over and put Captain MacDonald's body on the stretcher?
A  Yes, sir.
Q  Did you assist in that regard?
A  Yes, sir.
Q  Then what happened?
A  Again, Captain MacDonald was fighting with us trying -- trying to get up.  I don't know what he was trying to do, but he was trying to get up, trying to get away from us.
Q  The stretcher that was used.  Would you describe that, please?  Was that a hand-carried stretcher or a wheeled stretcher?
A  I believe it's the type they carry in the ambulance.  It has wheels on it.  It collapses down and I believe they wheeled it through the hallway.
Q  And how many of you were engaged in trying to put Captain MacDonald on that stretcher?
A  Well, I know the two medics, myself and Sergeant Tevere.
Q  Did you assist in taking the stretcher down the hallway?
A  Not as much.  I followed it down the hallway.
Q  How much of the width of the hallway did the stretcher occupy?
A  I'd say a good two-thirds of it.
Q  You observed in the photographs you saw earlier, and you recall yourself that there was that red item you described as a blanket or quilt there.  How did the medical people negotiate past that without disturbing it?
A  I don't know, sir.
Q  You were not aware of it there at that time, I assume.
A  No, sir, they were sort of going up the hallway towards the front door and I was standing back.  I figured they had it from there.  I didn't want to get in the way.
Q  And what was Captain MacDonald doing when they were taking him down the hallway?
A  Okay, sir.  At the time he reached the doorway of the front bedroom, he tried to get off the stretcher.  At that point the medics, I believe it was Sergeant Tevere, I'm not certain, tried to restrain him, hold him down.  He said, "God damn MP's, let me see my kids."  At that point I believe he collapsed and they put him back on the stretcher.
Q  Now when the medics went out they took him through the living room and out the front door?
A  Yes, sir.
Q  At that point did you follow into the living room yourself?
A  Yes, sir.
Q  And what did you observe in the living room in terms of there being other people there?
A  Well, there were a few people standing in the living room.  Lieutenant Paulk was standing there.  He said they are waiting for Colonel Kriwanek to come and Major Parson.  The CID was arriving, beginning to arrive.  After that I just waited around to find out what they wanted me to do.
Q  You stayed in the living room and waited for further assignment?
A  Yes, sir.
Q  What was Lieutenant Paulk doing at that time?
A  He was -- he said to Tevere and I -- he said to stand by in case the Colonel wanted to speak to us.  He told Sergeant Hageny to make sure his men were outside and around the house to keep everybody away.  I believe the CID; one of the CID agents had gotten there.  He was in the house waiting, and other than that there was a few minutes before Colonel Kriwanek arrived.
Q  About how many people did you estimate at that point, when you came into the living room, were there in and about the living room area?
A  I would say at least six.
Q  Now at that time what lighting existed in that living room area?
A  I believe it was still the lighting from the kitchen area.  I don't think anyone turned on any other lights.
Q  Was that a ceiling light you are referring to or a fluorescent light?
A  I believe it was a fluorescent ceiling light.
Q  And you don't recall any light in the living room area, the area to the left of the entrance from the hallway, as opposed to the area to the right, which was the dining room and kitchen?
A  I don't remember any, sir.
Q  What did you observe about physical things in the living room, dining room area?  Did you see anything on the floor that struck you as unusual?
A  Yes, sir.
Q  What is that you observed?
A  The coffee table was overturned.  Also there was a wallet laying on the floor.
Q  Now this wallet, where was it in reference to the sofa and coffee table which we already have photographs here of?
A  Right, sir.  It is out -- as you are standing in the hallway, you have a sofa here and table on the left.  The wallet would be out, more or less directly out from the hallway, approximately ten or twelve feet.
Q  And let me show you another photograph to see whether that might assist.  Before we do that, perhaps you'd first make reference to the large chart again and would point with your finger to the point where you recall the wallet to have been located.
A  Yes, sir, it was somewheres out in this area here.
Q  Was it on the carpet or off the carpet as you recall?
A  I believe it was on the carpet.

MR. SEGAL:  Thank you, Specialist Mica.

COL ROCK:  One moment.  With reference to the location and for the record, approximately how many feet is that from the base of the steps leading from the hall into the living room in your estimation, roughly, about how many feet?

A  I'd say eight to ten, maybe twelve feet.

COL ROCK:  Thank you.

(Witness returned to his seat.)

Continued questions by MR. SEGAL:
Q  In -- was it in a straight line with the hallway as if the hallway had been extended all the way to the front of the house?
A  No, sir, it was off on a small angle to the left.

MR. SEGAL:  I'm going to ask for identification purposes to have two other photographs supplied to the defense by the government as A-8 and A-9 for identification only.

(Accused Exhibits A-8 and A-9 were marked.)

Q  I show you two photographs marked A-8 and A-9 for identification only, and ask you first to look at A-8 and tell us if the place on the floor where you observed this wallet is visible in this particular photograph?
A  Yes, sir, I believe it would be somewheres right over in this area here.
Q  If you would be good enough to turn the photograph so that the investigating officer may see where you are indicating.
A  I believe it was right out in this area here, sir.
Q  Now for the record, on photograph A-8, the witness has indicated with his finger an area between the edge of the living room rug and what appears to be some form of a plant, and about half way, I assume between the edge of the living room rug and the plant, you indicated you saw the wallet?
A  Yes, sir.
Q  And it would be to the right of a white object that appears in this particular that you would describe as being what -- this white object?
A  It appears to be a flower pot.
Q  And the wallet that you saw was to the right of that flower pot?
A  Yes, sir, I believe so.
Q  Looking at A-9 is it fair to say that reveals less of the area of where the wallet would have been than photograph A-8?
A  Right.
Q  Let's withhold that then.  Now I would ask you please to look further at the photograph marked as A-8 and tell us whether there is anything else there in that photograph that appears different than the living room scene appeared to you as you came in?
A  Yes, sir.
Q  What is that?
A  It appears to be the white flower pot.
Q  Now what is different about that white flower pot in the photograph than as you recall seeing?
A  Well, in this photograph it is standing on what appears to be on its base.  I remember it as being on its side.
Q  Do you have any doubt in your mind now when you first came into the living room, after Captain MacDonald was carried out that that white flower pot was lying on its side, rather than standing on its base as it appears in the photograph?
A  No, sir.
Q  Now, I ask you also, if you will, to add to your observation the photograph that has been marked as A-9 for identification.  In looking at both A-8 and A-9 can you indicate to the investigating officer whether the location or placement of this flower pot on the floor is the same place that you recall seeing it when you came into the living room after Captain MacDonald was taken away?
A  No, sir, it isn't.
Q  What is different about the placement of that white flower pot in which you recall seeing?
A  Sir, I remember seeing it not next to the end of the coffee table.  I remember seeing it more or less in front of the coffee table.
Q  Now if you turn this photograph around which is marked A-9 and indicate to the investigating officer where it was that you recall seeing that flower pot?
A  Yes, sir, it was more or less over on this side here.
Q  Could that be between the top of the coffee table which is now lying at right angles with the floor and what appears to be some plant material at the right edge of the photograph marked A-9?
A  Yes, sir.
Q  And is the same observation also true as far as you are concerned as to A-8, that the flower pot in A-8 is not in the position that you recall?
A  Yes, sir.
Q  Now while you were in the living room, did you observe any person or persons touch any of the objects in the living room?
A  Yes, sir.
Q  Who was it that touched any of the objects in the living room?
A  I don't recall who it was, sir.  I remember vaguely what he was wearing.
Q  All right, what was that person wearing?
A  I believe he had on blue jeans and an army field jacket.
Q  And what race was that person?
A  Caucasian.
Q  Could you give us an approximation of his age?
A  I'd say approximately twenty-one to twenty-three years old.
Q  Was there anything else about his face or hair or any other pertinent physical fact that you would now recall and tell this court?
A  Yes, sir, his hair seemed a bit longer than -- than military regulation.  Well, in accordance to what most of the MP's -- I know at that time they were pretty rough on us.  We had pretty short hair.
Q  Now where did you see this person in the living room?
A  Yes, sir, he was standing up as you come in the front door of the living room, he would be standing near the wall on the left.
Q  And were there other persons in or about where he was?
A  Yes, sir.
Q  Who were the other persons?
A  At this time I believe it was Sergeant Hageny and Sergeant Caldwell, Lieutenant Paulk and myself, and possibly one of two MP's.
Q  And what did you observe this person, whom you have described do?
A  Well, sir, he was standing there, and everybody was sort of just standing around waiting to see what was going to happen next.  He walked across -- across the rug there and as he walked past the coffee table he bent down as if to pick up something.  Someone said, and again I don't know who it was that said it, but someone said, "Don't touch anything," and he said, "Oh."  At that time he proceeded to walk across and sit down on the couch.
Q  Did he actually touch the flower pot?
A  Yes, sir, I believe he did.
Q  And was he, in fact, attempting to turn it upright from the lying down position that you first observed it?
A  Sir, I don't know.
Q  When someone made this comment not to touch or further handle the object on the floor, what did the unidentified individual do?
A  Well, at the time he was bent over.  He stood upright and he said, "Oh," and then he just walked across and he sat down on the edge of the couch.
Q  Now is that the couch that appears in -- well, A-7 I think.  Which one does it appear?
A  A-9.
Q  A-8?
A  A-9, sir.
Q  He sat down on that couch?
A  Yes, sir.
Q  And on which end of the couch was he sitting?
A  He sat down on this end right here, more of less to the center of it.
Q  The edge closest to the front wall of the house, as opposed to the end closest to the entrance to the hallway?
A  Yes, sir.
Q  Now what did this unidentified person then do as far as you observed?
A  Well, sir, he sat down on the couch and someone said to him, "Hey, don't sit down," and again he says, "Oh," and he just got up and walked back to where he was and stood around.
Q  You said back to where he was.  You mean back near the front entrance of the MacDonald house?
A  Yes, sir.
Q  And there he remained standing with the other MP's and where the people were?
A  Yes, sir.
Q  Do you have any idea of what happened to the wallet that you observed on the floor?
A  Sir, at the time, I didn't.
Q  You mean -- you say at the time you didn't.  Did you become aware of its disappearance from the position?
A  Yes, sir, I'd heard rumors around the PMO.
Q  Was that later on, after February 17th after you had left the scene and returned to your other duties?
A  Yes, sir.
Q  Let's perhaps establish at this junction -- about what time did you leave the MacDonald house?
A  I would say it was somewheres in the area of 0415 hours.
Q  And when you left the house was the wallet still in the living room as you observed?
A  Yes, sir.
Q  Did you ever see, yourself, the wallet after you left the MacDonald house?
A  No, sir.
Q  Now before you left the MacDonald house about 4:15 had any photographs been taken to your knowledge of the crime scene?
A  No, sir, at the time I was leaving the photographer was just arriving.
Q  And when you say he was just arriving, did you know who the photographer was and recognized him?
A  Yes, sir.
Q  Who was that person?
A  Mr. Alexander.
Q  And when did you come in contact with Mr. Alexander?  That morning.
A  Well, he was in the living room.  He had his cases set down, more or less off in the dining room area, right near the foot of the stairs leading to the hallway.  He was starting to assemble his cameras.
Q  And that's when you left the MacDonald house?
A  Yes, sir.
Q  All right, at that point when you left the MacDonald house, the wallet was still on the rug where you described it?
A  Yes, sir.
Q  The white flower pot was still lying on its side as you had observed it?
A  No, sir.
Q  What position was it in?  Was it on its base?
A  It was on its base.
Q  And how had it gotten from its position of lying on its side to standing on the base?
A  I don't know for certain, sir, but I believe it was that man who sat on the couch.  I believe he sat it upright.
Q  But that, of course, was not the way that the pot had originally been seen by you when you first had occasion to go into the MacDonald living room and make observations of the arrangement of the items there?
A  That's right, sir, I don't remember it that way.
Q  You indicated before that subsequently at the provost marshal office you became aware of a possible disposition of that wallet?
A  Yes, sir.
Q  Now would you indicate to the investigating officer what you subsequently learned?

CPT SOMERS:  I object.  The witness has already referred to what he heard as a rumor.  I think this would be highly improper even in this area.

COL ROCK:  Specialist Mica, do you consider any further knowledge you have reference to the wallet more than a rumor?  Do you have any facts concerning its whereabouts after you departed the area?

WITNESS:  Well, sir, I'd seen a statement that I believe the CID had concerning their questioning someone about the wallet and where it was found.  I've seen that statement, which caused the rumors that I'd heard about.

COL ROCK:  Do you recall whose statement it was?

WITNESS:  No, sir.

COL ROCK:  Did you see that statement in any official capacity?

WITNESS:  No, sir, it was just lying on the desk.

COL ROCK:  The objection is sustained.

Continued questions by MR. SEGAL:
Q  Do you recall the name of any person who subsequently -- who you subsequently spoke to who indicated he might have personal knowledge about the subsequent finding or location of the wallet?
A  No, sir.
Q  Did you have occasion at any time when you were with Captain MacDonald aside from getting information about the description of the people who were involved in the attack upon him and his family, to get some additional details about how Captain MacDonald came in contact with these persons, and what, if anything, he did with these persons?
A  Yes, sir, he -- as I was attending to Captain MacDonald, he managed to tell me, he says, "I was sleeping on the couch" and he said he was awakened by screams from his, I believe he said his children.  He said he looked up and saw them standing at the edge of the couch.  He said before he could get up they started hitting him, and the whole time the men were hitting him this woman was standing, standing there with a candle chanting, "Acid is groovy.  Hit him again.  Kill the pigs."

MR. SEGAL:  That's all.

Questions by CPT SOMERS:
Q  From your testimony I gather that most of the time you spent in the house you were with Captain MacDonald.  Correct?
A  Yes, sir.
Q  During this period of time were you aware of anybody altering the position of clothing of Mrs. MacDonald?
A  No, sir.
Q  Did you see anybody?
A  No, sir.
Q  Now as I understand that when you came around to the back of that house the first time the back door was open.  Is that correct?
A  Yes, sir, the inside door was.
Q  Was it closed at any time during this period that you were in the house, so far as you know?
A  I believe someone might have pushed it closed.  At first Captain MacDonald said he was cold.  They might have closed the back door.  I am not certain.
Q  What was the temperature outside?  Was it warm or cold?
A  I don't know what the exact temperature was, but it was -- it had been raining that night, very damp outside, and it was kinda cold.
Q  With regard to what has been marked as Accused Exhibit 9, you've indicated that there is a difference in the position of the flower pot that you saw and that there was a wallet.  Is that correct?
A  Yes, sir.
Q  Now look, if you will, at the coffee table in that picture.  Does it appear to be correct?
A  Yes, sir, as I remember it.
Q  Do you see in the picture anything under the table?
A  Yes, sir.
Q  Does that appear to be correct?
A  Well, sir, at the time I first seen the coffee table I didn't take much notice of the things that were underneath it.
Q  Was there anything glaringly that belonged there that you noticed?
A  Not that I noticed.
Q  Is that the position that the table was in or was it in some other position?
A  That was the position I saw the table in.  I believe that was the position it was in when I looked.
Q  I gather these comments would hold true of Accused Exhibit 8 as well?
A  Yes, sir.
Q  This person whom you believe may have moved the flower pot, what was his function?  Do you know?  Was he an MP or medic?
A  No, sir, I'm not certain.
Q  Do you have any idea?
A  I don't know exactly.  I -- from the way he was dressed I thought he might be an ambulance driver.
Q  What was it about his dress that leads you to believe that?
A  Well, we spend quite a bit of time down at Womack talking to people involved in accidents, affray and things like that and just from seeing some of the medics, ambulance drivers, people that work around the emergency room down there seem to be a little bit lax in their mode of dress.  I just assumed -- my impression was that he came from Womack.
Q  Have you ever seen anyone at Womack wearing blue jeans?
A  I've seen them walking around in the emergency room, yes, sir.

CPT SOMERS:  I have no further questions of this witness.

MR. SEGAL:  If I may just one for clarification of an area.

Questions by MR. SEGAL:
Q  I would like, if you could assist us, Specialist Mica, to help us determine how many people were in the MacDonald house at the time the medics came and removed Captain MacDonald. Now, I gather that the -- you saw the two medics come into the master bedroom where you were there with Captain MacDonald?
A  Yes, sir.
Q  Now who else was there besides the two medics in the master bedroom?  And yourself.
A  Sergeant Tevere was with me.  I'm certain of Sergeant Tevere.  I don't know who else was still in the master bedroom.
Q  What about in the utility room immediately adjoining the master bedroom?  Were there people that you could see there, that you could hear voicing coming from?
A  No, sir.
Q  Now you also indicated that when you saw the medics come into the master bedroom you believe you saw two other medics in the house at that time?
A  Well, I remember one other, I'm not certain about.  I remember three of them.
Q  The third man, was he or was he not carrying a stretcher at that time?
A  No, sir, I don't believe he was.
Q  Did he come in the master bedroom or did he remain in the hallway?
A  I believe he came down the hallway.
Q  So at that point there were yourself, Sergeant Tevere and two other medics in the master bedroom and one other medic in or about the immediate vicinity in the bedroom or hallway?
A  Yes, sir.
Q  Now as you proceeded down the hallway do you recall seeing other military personnel in either of the two bedrooms that you passed?
A  Well, sir, there were people in the hall as we took the stretcher down.  I believe when we went past the bedrooms people that were in the hallway, some of them stepped back into the hallway leading to the bathroom and into the doorways leading into the bedrooms.
Q  And to the best of your recollection, were these military police personnel?
A  Yes, sir.
Q  And what would your best estimate be as to the number of persons who got out of the way of the medics carrying Captain MacDonald?
A  I'd say only approximately, maybe three.
Q  Now when you got to the living room, as the medics were going in front of you carrying Captain MacDonald what persons, or what number of persons did you observe in the living room at that time?
A  I would say at that time there were approximately four to five people.
Q  And was Lieutenant Paulk one of those persons at that point that you recall?
A  Yes, sir.
Q  And when you say four or five people are you including in that number this unidentified man?
A  Yes, sir.
Q  So that by your own observation at that point, not including Captain MacDonald, there were two medics with Captain MacDonald, two military police in Captain MacDonald's bedroom.  Is that right?
A  Yes, sir.
Q  Another medic who was in or about the area?
A  Yes, sir.
Q  There were approximately three military policemen in the hallway and got out of the way as you went down the hallway?
A  Yes, sir.
Q  And four to five persons in the living room including one unidentified male?
A  Yes, sir.
Q  So there were thirteen and fourteen people there by my count.  Did you have occasion to go outside the house to observe whether or not other military police, other personnel were about that area?
A  Only when I left the house.
Q  When you left the house did you observe a number of vehicles outside?
A  Yes, sir, they had -- we had our jeep, the patrol supervisor's jeep, the duty officer's vehicle, and I believe we had another ambulance outside.  Colonel Kriwanek had arrived.  The deputy provost marshal had arrived, and I believe there was one or two other vehicles.
Q  And they were parked on both sides of the street?
A  Most of them were parked in the middle of the street.
Q  Did you observe the CID vehicle there at that time?
A  Yes, sir, they were just beginning to arrive.
Q  You say they -- more than one vehicle?
A  Well there was one CID vehicle there at the time that I saw, but I know the agents were starting to come.

MR. SEGAL:  Thank you very much.  I have nothing further of this witness, sir, at this time.

CPT SOMERS:  I have no further redirect.  I do request that the witness be excused temporarily.

COL ROCK:  I have one or two questions I wish to ask at this time.
     Did you at any time attempt to use -- well let me rephrase it -- did you observe a telephone in the master bedroom?

WITNESS:  Yes, sir.

COL ROCK:  When you first observed it, what condition was it in?  Did you note anything unusual about it?

WITNESS:  Yes, sir, it was off -- the receiver was off the hook.

COL ROCK:  Was off the hook.  Did you at any time attempt to use that phone?

WITNESS:  No, sir.

COL ROCK:  You did not.  Did the position of the receiver change at any time to your notice?

WITNESS:  Yes, sir.

COL ROCK:  Under what conditions?

WITNESS:  Sergeant Tevere picked it up.

COL ROCK:  Did you notice anything unusual about the fashion in which Sergeant Tevere picked up that receiver or used the phone?

WITNESS:  Well, sir, it wasn't -- it wasn't unusual.  He did grip it with his -- he tried not to grab a hold of it but to use the least amount of pressure or physical contact with it.

COL ROCK:  Why do you think he did that?

WITNESS:  Well, sir, we had been ordered as soon as we got inside the house to pick up the phone; there was something about an open line that they had to check it.  I don't know exactly what it was, but we were told as soon as we got inside to pick up that phone and contact who was on the other side.

COL ROCK:  I see.  And why do you think Sergeant Tevere used or didn't grab the phone?

WITNESS:  Evidently not to disturb any physical evidence that could have been on it.

COL ROCK:  Okay.  Did you, while in the living room and observing this individual in the blue jeans, hear anyone ask him who he was or why he was there?

WITNESS:  No, sir.

COL ROCK:  Referring back to when you first arrived, and upon someone's instructions to go to the rear of the house, when you proceeded around the side, I believe you said you met Sergeant Tevere coming from the rear of the house.

WITNESS:  Yes, sir.

COL ROCK:  And I believe you also said Sergeant Tevere stated, "Tell them to call Womack ASAP."

WITNESS:  Yes, sir.

COL ROCK:  Why do you think Sergeant Tevere said that?

WITNESS:  Well, sir, the only reason he would say tell them to call Womack, would be if someone was injured.

COL ROCK:  Is it your impression that Sergeant Tevere had been in the house before you went back with him?

WITNESS:  At first I thought he might have been, but later on he said he ran to the door and he could see from the back doorway a pair of legs, two pair of legs standing out.

COL ROCK:  It is your impression then that he had not gone into that house at that time?

WITNESS:  Yes, sir.

COL ROCK:  That is your impression?

WITNESS:  Yes, sir.

COL ROCK:  Does either counsel desire to further question the witness based on questions which I have raised?

MR. SEGAL:  Yes, sir, I would.

Questions by MR. SEGAL:
Q  Specialist Mica, I gather from what you are saying that you did observe the telephone very shortly after you came into the master bedroom?
A  Yes, sir.
Q  And what was there that you observed about the handset part of the phone?
A  Well, sir, it was off the -- it wasn't in the cradle.  It was off the cradle and I believe it was laying on the dresser next to the phone.
Q  Well, when Tevere was told or someone was told to do what about that phone?
A  Yes, sir, I believe the radio message was that as soon as someone got inside the house, pick up the phone and let them know what the situation was, when we were inside and everything was under control.
Q  And did Tevere do that when he picked up the telephone to speak into it?
A  Yes, sir.
Q  Do you know what he said at that time?
A  Yes, sir, I believe he said the line was dead.
Q  He said the line was dead?
A  I believe so.
Q  Did you observe what he then did with the telephone?
A  He put it down, but I did not notice where.
Q  Now, if I may I want to show you what I ask to be marked A-10 for identification which is another photograph provided to the defense by the government.

(The photograph was handed by Mr. Segal to Col Rock and CPT Somers.)

Q  Now, Specialist Mica, if you would look, please, at the photograph marked A-10 and I ask you first of all whether you can indicate whether you recognize what is depicted in that photograph?
A  Yes, sir.
Q  And what do you recognize?
A  Well, I recognize the telephone, what appears to be a portion of the body of Mrs. MacDonald, and what appears to be a knife laying down in front of the dresser.
Q  Now may I ask, although it is probably apparent, you are looking at a photograph of what building -- or what room?
A  This is the master bedroom.
Q  Of the MacDonald household?
A  Yes, sir.
Q  And does it appear to be the room that you saw on the morning of February 17th, 1970?
A  Yes, sir.
Q  Do you observe a telephone in this photograph?
A  Yes, sir.
Q  Now do you observe where the handset part of that phone is?
A  No, sir, not from this photograph.
Q  Can you observe the cable from this telephone, the cable connecting the handset to the main part of that phone?
A  Yes, sir, it looks to be around to the side, far side in the background.
Q  Does it appear to you if the handset is now dangling over the side of the bureau where the white phone is located?
A  I can't tell sir.
Q  Do you ever recall seeing the telephone in that particular fashion when you were in the MacDonald bedroom?
A  I remember seeing the -- this part, the main part of the phone in that position, yes, sir.
Q  But do you ever recall the handset being out of sight in the fashion where it appears to be in this photograph?
A  No, sir, not that I remember.
Q  When you ran back to the door of the utility room with Sergeant Tevere and you entered into the utility room and then the master bedroom do you recall other MP's coming in directly behind you?
A  Yes, sir.
Q  And if I was to suggest to you that you were followed by the following MP's, would you indicate whether my suggestion is correct with regard to your own memory?  I would ask you then as far as you can recall by MP's Morris, Sellick, Demon, Lieutenant Paulk and Specialist Dickerson?
A  Well, sir, they came in after I did to the best of my knowledge, but the one I remember distinctly coming in behind me was Sergeant Duffy.
Q  And where were you standing, in that room, that is, when Sergeant Duffy came in?
A  Yes, sir, I was in the doorway between the utility room and the master bedroom, sir.
Q  And Sergeant Tevere was where?
A  He was more or less right next to me.
Q  And what do you remember about Sergeant Duffy coming in?
A  Well, sir, he told me to get out of the way.
Q  And when he was speaking to you, was he standing behind you in the utility room?
A  Yes, sir, he had his hands on the back of my shoulders, and he said, "Mica, get out of the way."  Then I didn't move and he told me to get out of the way again.  I still didn't move and finally he pushed me out of the way.
Q  And what did he do when you -- when he pushed past you?
A  I don't know, sir.  At that time I went to Captain MacDonald.
Q  But had he proceeded past you into the master bedroom after having told you twice to get out of the way?
A  I believe he did, sir.
Q  You have no recollection of where Sergeant Duffy went?
A  I don't know where he went, sir.
Q  You went directly to Captain MacDonald?
A  Yes, sir.
Q  Then --

MR. SEGAL:  That's all I have, sir.

CPT SOMERS:  I have nothing at this time.

COL ROCK:  Specialist Mica, you are advised that you will discuss your testimony with no person other than counsel.  You are excused subject to recall.

WITNESS:  Yes, sir.

(Witness saluted the IO and departed the hearing room.)

COL ROCK:  Mr. Segal, you have had marked for identification Accused Exhibits 5 through 10.  There has been no objection from counsel for the government as to your use of these photos to assist Specialist Four Mica in testifying on cross examination. Therefore I will consider these photographs as being properly before this Article 32 officer and I will use these as I would any other evidence.  May I suggest, however, to both counsel, in the future where counsel for either side have exhibits they desire to use and have one considered such I will do so unless there is a timely objection from opposing counsel.  Is that clear, gentlemen.

MR. SEGAL:  That is clear, sir, and I would think, particularly in regard to the photographs here that in view of the fact that they were provided by the government to the defense that there should be no problem about authentication of these photographs which might be the questions that arose from the photographs that were obtained from some other source.

COL ROCK:  Yes, this is my view on this also.  Gentlemen, I suggest at this time that we take a ten minute break.

CPT SOMERS:  If I may, sir, the government would request twenty minutes.

COL ROCK:  All right, we will take a twenty minute break.

(The hearing recessed at 1012 hours, 8 July 1970.)

(The hearing reopened at 1038 hours, 8 July 1970.)

COL ROCK:  The hearing will come to order.
     Does the counsel for the government have additional witnesses?

CPT SOMERS:  Yes, sir.

MR. SEGAL:  Sir, at this time, if we may, there are certain requests the defense thinks would be appropriate to make at this juncture of the proceedings.  We will call upon the government at this time, sir, to produce and make available to this inquiry the statement that was referred to this morning by Specialist Mica in regard to information received from an individual which was reduced to a former witness statement by the criminal investigation division as to the disappearance and possible subsequent relocation of the wallet that was seen in the living room of the MacDonald household.  And secondly, sir, we have an additional request to make, and with the leave of the investigating officer, Captain Douthat will make that request at this time.

CPT DOUTHAT:  Colonel Rock, at this time, we would like to renew the request of the defense that you -- that was originally put forth in our letter dated 22 May to yourself and request that the government make available to the defense any and all photographs of the scene which were taken on 17 February or thereafter.  It is probably apparent from the photographs that have been introduced so far that the photographs that have been given to the defense contain large discrepancies when compared with the actual memory of the individuals who were on the scene. Therefore the defense feels that if a complete set of photographs were given to the defense we might be able to ascertain possibly exactly how the scene did appear and would be better prepared and able to cross examine further witnesses and find by the use of different photographs how the scene actually appeared.

COL ROCK:  You say the witnesses have indicated discrepancies in the photos in how they remember?  I'm not quite clear as to what discrepancies.  It didn't become apparent to me that there were discrepancies.

CPT DOUTHAT:  Specialist Mica stated that the flower pot that was pictured in one of the photographs of the living room was not as he remembered it; that the phone was not as he remembered it; and although at this time it has not been shown by the defense, there are other witnesses who will state that they have been shown other photographs which shows objects to be in different places in the MacDonald house.  Captain MacDonald himself has been shown photographs showing the same object in two different locations.  Other witnesses have been shown photographs which show objects to be in different places.  Specialist Mica also stated, I believe, that he specifically recalls that the white towel was not on the body of Mrs. MacDonald as was shown on the photograph in the master bedroom.

COL ROCK:  In other words, you are saying that for instance, there are photographs in existence of Mrs. MacDonald's body without the towel.  Is this essentially it, as an example?

CPT DOUTHAT:  I do not know if there are photographs in existence which would depict that. I have been told by witnesses that they have seen photographs which showed the materials which are pictures at the end of the hallway in the MacDonald house on the sofa in the living room, and not at the end of the hallway.  I have -- and there are other photographs, and I cannot recall at this moment which show discrepancies in the location of objects in the MacDonald household.

COL ROCK:  Does the counsel for the government have other photographs which will be introduced at an appropriate time and available for the defense?

CPT SOMERS:  The counsel for the government has no photographs which it intends to use except some autopsy photographs which are not of the scene; has no photographs of the scene which it intends to use which is not provided to the defense.  I would like to point out that the photographs that we have so far, were introduced into this hearing by the defense.  They were not introduced by the government.  The government is capable of delineating precisely when these photographs were taken under what conditions which may help to explain some of the difficulty the defense is having with photographs which it did not attempt to explain how they were taken.

CPT DOUTHAT:  If the investigating officer please, on the letter dated 22-May, in which the defense requested that all photographs be furnished to the defense in paragraph 2, we requested that the identity of the photographers who took the requested photographs and the dates also be furnished.  We have not as of yet been told who took the photographs and on what date, at what time, and under what circumstances they were taken.  And it is for this reason we'd like all photographs and this information that CPT Somers has alluded to in order that we may properly have an idea of the crime scene and therefore be able to present to yourself the exact -- exactly what did transpire, or what physical evidence was at the crime scene.  In addition, the defense would not like to be limited to that evidence which the government intends to introduce.  It would appear to the defense that there are numerous photographs which show different arrangements of items in the house and quite possibly, when presented to the witnesses on the scene, might be in more detail, in a more accurate manner reflected exactly how the scene was reflected on the 17th of February.  We would like to bring to you, as you might say all of the facts and in the most open manner possible, and all photographs which might, might do this in front of all witnesses who might be able to explain exactly how the scene was.

COL ROCK:  Does the counsel for the government have any further statements?

CPT SOMERS:  Yes, sir, if I could have just a moment.
     Among the other things that the government wishes to say, the request that the defense made relevant to photographs, the paragraph they refer to in which they request the name of the photographer, the defense was furnished with a second endorsement in answer to many of these requests, of which paragraph 8 reads, "The photographs were taken and developed by Mr. Hugh M. Squires, GS-9, Pictorial Officer, Post Signal Division, Office of the Assistant Chief of Staff for Communications and Electronics."  That information was furnished to the defense on the 27th day of May.  So the photographs which the defense has, it has known who took them since that time.  Now the government, if I may say so, in its various agencies has expanded untold amounts of money and time and effort, and the materials which may be in government hands either here or with the CID or with the FBI is very extensive.  The government has at this time no intentions of attempting to provide either to the defense or to this hearing the entire volume of this material, and that's the position of the government, sir.

COL ROCK:  Captain Somers, are there, in fact, photos which exist that would show discrepancies in scenes as alluded to by counsel for the accused?

CPT SOMERS:  I'm not aware of any, sir.  If they are talking about discrepancies between one photograph and another, no, sir, I am not aware of any.

COL ROCK:  In other words, there would perhaps be additional photographs of the same scenes?

CPT SOMERS:  Different in that they were taken later.

CPT DOUTHAT:  Colonel Rock, at this time I believe I could show you two photographs which have been furnished to the defense which bear marked discrepancies.  If you will give me but a moment, sir.

COL ROCK:  Furnished to the defense by whom?

CPT DOUTHAT:  By the government.

COL ROCK:  These will be accused exhibits 11 and 12, and which do you want to present first?

CPT DOUTHAT:  I'd like to present this one, Accused Exhibit 11.

COL ROCK:  This will be 11 and this is a photo of a female child.

CPT DOUTHAT:  Photo of a female child, yes, sir.

COL ROCK:  Currently I am considering these photographs only from the standpoint of identification, and this one will be marked Accused Exhibit 12, and is another apparently -- another photograph of the same child.

(Accused Exhibits 11 and 12 were shown to CPT Somers.)

CPT DOUTHAT:  I might state, sir, that Accused Number 12 has written on the back of it the initials "RBS" with the date 5 July 70, the notation "body position change by doctor."  These initials are the initials of Mr. Robert Shaw, a criminal investigation agent, who was assigned to this case who made this notation on the back of Accused Exhibit 12 on that date to explain why this photograph was different from that photograph which is now marked Accused Exhibit Number 11.  If you will look at these two photographs and look at the positioning of the right arm of the child, you will note that the right arm appears on one photograph and not in the other.

COL ROCK:  Well, I don't see any -- any discrepancies, if you were provided with information as to why a particular change occurred, and I am assuming that at sometime this will be entered into evidence either by one side or the other; the facts are known as to the change wherein lies the discrepancies?

CPT DOUTHAT:  We were originally given the photographs and it was not until after we had questioned the CID at length about the photographs that we discovered which of these photographs was the true photograph of the scene.  Now that we were told that the photograph showing the right arm was the true photograph.  We have also had this brought on, as I mentioned, with the clothes on the couch and at the end of the hall, and we have also talked to the witness, one of the MP's whose name I cannot remember at this time, he said that when he was being interviewed by Captain Thompson he was given two photographs showing the east or the master bedroom which showed the bed and the covers on the bed to be in two different positions.  It is the contention of the defense that if we were given all photographs we might well find that some of these photographs which were given may not be the exact state of the crime scene on the 17th of February, but we could present the different photographs to all the witnesses, therefore gain a true picture.

CPT SOMERS:  Sir, the defense has had these photographs for some time.  It has had access to the witnesses of the scene, and it could have found out simply by showing the pictures to the witnesses if there were differences between the pictures and the scene.  I say again that these pictures have been introduced by the defense with no intent to explain the conditions and time at which they were taken.  The government does not intend to do that.  It intends to explain the conditions and time that they were taken.  The discrepancies which the defense has mentioned it has an explanation for and got the explanation because the prosecution gave the pictures to the defense and the witnesses were available to the defense. Now there may be other pictures which may have been taken later on in the day, and in which there may be other differences, and again you would have explanations for those differences if those pictures were presented.

MR. SEGAL:  May I be heard on this matter?  These photographs now in the possession of the defense were submitted in response to the communication of 22 May which asked for, in effect, the photographs of the crime scene.  They were then provided without explanation to the defense and offered to us as allegedly being photographs of the crime scene.  The person who told the explanation as to how these photographs were taken or the circumstances of any changes made in the crime scene did not respond willingly or readily.  As a matter of fact, the investigators in this case had originally declined to answer questions to counsel for the accused unless they had counsel present.  They persisted in taking the position that literally they would not have to answer questions and only upon threat of taking proceedings to higher authorities, on threat of being prosecuted for failing to answer direct questions given by superior order, did we, in the last week, obtain the depositions of the CID investigators who are responsible for the photographs and the overall control of the crime scene.  Now it is critical, sir, to this case, to realize and for the court to be able to have before it, the facts of how the investigation developed.  It is apparent to us the government will rely upon what it considers to be alleged circumstances and by virtue of some physical facts at the crime scene to build its case.  Yet there is no one who is prepared to say that the defense has been given access to all of the photographs that were taken with or without adjustment.  I want to state at this time that I am prepared at this time to call, out of turn independently, Captain MacDonald and under oath have him testify to this officer here that he was shown a photograph, and if I may, sir, see the originals here, sir -- that during the course of questioning he was shown a photograph similar to A-7, which purports to show the sofa in the MacDonald house in the living room; that the photograph that he was shown, if Captain MacDonald was called to testify, sir, would show that a substantial number of clothing belonging to one of the children was placed on the sofa, and then presented to Captain MacDonald in the course of interrogation for the purpose of his allegedly explaining how these clothing items got there.  These photographs were put forth purportedly by the investigators in this case as part of their investigation of what the original crime scene looked like.  Now it seems to us, sir, that we cannot really adequately determine whether the government's case based upon certain circumstantial evidence, based upon physical facts at the crime scene, is in fact truly and honestly and fully presented without having access to all the photographs.  I do not ask the government to look through all of its files for all its information.  It is a very simple matter to determine.  There could not have been, sir, more than two photographers, and three photographers, at most.  It is doubtful whether the photographers were anybody but persons who is here now present on this establishment.  It is unlikely that they are photographers that belong to the Federal Bureau of Investigation, but unless the government so represents that these are things that would be extraordinarily difficult to present, I cannot fathom any legitimate reason, sir, as to why we should hold back on that particular data.  It is not like testimony where one fears than someone might tamper with them when they got a hold of it. These photographs have been taken and cannot be altered in any fashion.  I'd like to say finally, sir that it seems to me if we are going to have a debate here about, well, whether these photographs represent the right scene or the right time, that we should compel at this time the appearance, out of order, of the persons responsible for the photographs.  So that we may hereafter intelligently interview witnesses and examine witnesses using photographs that all of us may rely upon.  It seems to me there is no reason for the court to proceed in darkness as to whether we have photographs that are helping us or that we are succeeding in confusing the record.

CPT SOMERS:  It will take me a while to respond to all of these points.  It is true that Captain MacDonald was shown photographs showing a variation of position in the clothing in the hall.  It is also true that it was explained to Captain MacDonald how that clothing got moved and the difference between the two photographs.  It is true that there have been some threats to witnesses in this case by the defense.  It is not true that the defense had to threaten anything to talk to the CID because I have worked with the defense in getting them to talk to the CID.  It is also true that these photographs were put in this hearing by the defense, out of order, and before they were authenticated by the prosecution, and I submit that the defense is in a very poor position now to complain about that.  It is not true that all of the photographers who took pictures are from Fort Bragg, nor is it true that all photographs are at Fort Bragg since some of them were taken by photographers at Fort Gordon and some of the photographs are at Fort Gordon.  These photographs were presented to the defense some time ago and I might add the defense has gotten these photographs along with a number of other things much earlier in the proceedings than is normally the case, much before they were in any way entitled to this evidence.  Now any discrepancies they may see in the pictures they have can be explained and the government has every intention that they should be explained.  Any discrepancies they may see, they could have talked to the witnesses that were available, and they could have done it ever since they got those pictures.  Now the government does not feel that it is incumbent upon it to prepare the defense's case for it, which is almost tantamount to what it is asking for.  The government intends to use some of the pictures which the defense already has.  It does not intend to use any other pictures.  It intends to authenticate the pictures that it uses, and it does not intend, unless ordered to, to attempt to ferret out all of the pictures which may have been taken at any time on that day or subsequently of this scene.

MR. SEGAL:  May I ask your indulgence, Colonel Rock, to make one very brief statement?  I do not wish to belabor the point.  I am satisfied that the investigating officer understands what we are driving at, but it seems to me that within the short span of two statements by the government, we have heard two substantially different and perhaps unintentionally misleading remarks made by the government.  First of all we were told that in response to our letter of 22 May requesting the names of all photographers, in the plural, who took photographs.  The government's counsel has read to this investigation this morning a statement that it was a certain government employee here on Fort Bragg who took the photographs. We are now told within a matter of a few moments thereafter that there are other photographers who took photographs that may be relevant to this investigation, and, sir, does not help this court to achieve the initial purpose which is to try and find out what the true facts are.  I do not believe the posture of the counsel for the accused has been in any way to ask the government to do anything more than to present to this court all of the relevant facts.

CPT SOMERS:  Well, since the defense counsel has imputed to the government some sort of inconsistency, I think it should be explained. Paragraph 8 of the reply, which the government has referred to and which the government has read, reads, "The photographs already furnished to the defense was taken and developed" and the name of the person having taken them was given.  The government does not contend that this paragraph which it read says it is naming all possible photographers.  Perhaps the defense asked for that, but that's not what the answer gives them, and the government doesn't say that it gives them that.  It gives them the answer to who took the photographs they have in their hands.

MR. SEGAL:  May we remark in evidence, sir, in regard to this particular subject matter, but not as to the hearing in chief, a copy of the letter of 22 May 1970 submitted to this investigating officer by counsel for the accused.

COL ROCK:  I have a copy of this in my files.  I'll just review it and return it.  Thank you, I have a copy of this.

COL ROCK:  If there are no further comments, this investigation will be recessed for fifteen minutes.

(The hearing recessed at 1104 hours, 8 July 1970.)

(The hearing opened at 1130 hours, 8 July 1970.)

COL ROCK:  The investigation will come to order.
     Mr. Segal, I have considered your request for the statement of the unknown witness with reference to the alleged missing wallet.  At this time I am going to deny your request.  However, if later it appears relevant to my investigation, you may renew your request.
     Reference your second request, I grant the defense request to the extent that I am going to require the government to produce a copy of each photograph taken at the alleged crime by and all photographers prior to the time the deceased victims were removed from the premises.
     Captain Somers, I'd like to know how long you think it will take the government to provide these photographs to the defense.

CPT SOMERS:  Sir, I can't estimate.  I would hope to be able to do it by tomorrow, but it would be a guess, at that.

COL ROCK:  Under these conditions then, do you think if we recessed -- it is now 1130 -- that by our regular session, say 1330 you could give us a final guesstimate as to the amount of time?

CPT SOMERS:  Yes, sir.

COL ROCK:  All right, now I would like to also mention at this time that I will wish to view the apartment at 544 Castle Drive as soon as possible in the presences of counsels for both sides and the accused, and I would like to estimate at 1330 this afternoon of when we might view that scene.

CPT SOMERS:  I can provide that, sir.

COL ROCK:  Are there any other points to be raised at this time?

MR. SEGAL:  Yes, sir.  I don't want to burden Captain Somers with many more details between now and 1330.  I would only ask whether we might have some idea by that time as to the availability of the fact sheet that was prepared by Lieutenant Paulk that was referred to yesterday, and which the court has authorized that we may have.  And, secondly, sir, Captain Somers has indicated that he would ascertain the availability of the FBI agent for the interview by counsel for the accused, and we would hope that we might have some report to the availability so that we could do that expeditiously, sir.

COL ROCK:  Would you need more time then, beginning the next session at 1330 to answer these two additional requests which I think are appropriate?

CPT SOMERS:  No, sir, I can answer one of them right now with respect to the statement or list made by Lieutenant Paulk.  Two CID agents have been working, attempting to locate the whereabouts of this statement now since the request was made.  I cannot locate anybody who has ever seen it, nor can they locate that statement, and I would guess, although I have not stopped them from looking at this point, that they are not going to be successful in that request.  I will be able to provide information with respect to the FBI man this afternoon at 1:30 and I will be able to give some estimate of time as to the other two matters, and I do not require any more time for that purpose.

COL ROCK:  All right for the purpose of this investigation, we will not hear any further witnesses until these photographs have been provided to the defense, and I will then make a determination at that time as to when the proceedings will continue.  This is for planning purposes.

MR. SEGAL:  Perhaps then, sir, if it can be arranged, Captain Somers might determine that we can undertake the viewing this afternoon in the interim while the photographs are being arranged.

COL ROCK:  This will depend entirely upon what he has to say at 1330.  I do not know whether they can arrange it in that short of notice.  If there are no further matters to be brought, this hearing will be adjourned until 1330 this after.

(The hearing recessed at 1135 hours, 8 July 1970.)

(The hearing reopened at 1404 hours, 8 July 1970.)

COL ROCK:  The proceedings will come to order.
     Captain Somers, are you prepared to answer any of the questions relative to the matter discussed just prior to our last break?

CPT SOMERS:  I am, sir.  With respect to the residence at 544 Castle Drive, I have been in contact with the Criminal Investigation Division agents who are working to clean up the debris in that house for this viewing, and they are not certain when they will complete that work, but I am to receive a call as soon as they do.  I anticipate that it will be sometime this afternoon.

COL ROCK:  I might further state that at such time as we move to that area to view the premises, I'd like to have an appropriate number of military police stationed there to keep any crowds away from the immediate area.

CPT SOMERS:  I can do that, sir.

COL ROCK:  Very good.

CPT SOMERS:  With respect to the pictures I now hand the investigating officer sixteen black and white glossy, 8 X 10, photos which comprise the entire number of pictures taken before the bodies were removed from the house other than those which the defense already has.  I would state to the investigating officer that many of those pictures are one of a kind which the government has no duplicates for, and I will represent to the investigating officer that there are no other pictures taken of that scene that the government knows of prior to the time the bodies were removed.

COL ROCK:  Can you state the photographer who, the name of and the location of the photographer, or address of the photographer?

CPT SOMERS:  The photographer, I believe is a Staff Sergeant Alexander.  He works in the criminal investigation division, Fort Bragg, North Carolina.

COL ROCK:  And currently here on active duty?

CPT SOMERS:  He is currently here on active duty, yes, sir.

COL ROCK:  Mr. Segal, I now hand to you the sixteen photographs. I've counted them myself.  There is that number.  If you wish to verify that.  You have the name and address of the photographer, and I request that upon conclusion of your use of these photographs, in view of the fact that they are the only copies, that they be returned after you are finished with them, or at the conclusion of this investigation.

MR. SEGAL:  Very well, sir.  Might I request, if it can be arranged by the government that at some point, that perhaps the photographer be asked to make some additional copies so that the government may not be without its photographs, and that we may have them for as long as we need them without interfering with the government's need or access to the same material.

CPT SOMERS:  If I can get these pictures reproduced, I will, sir.  There is some question right now as to the location of the negatives.

COL ROCK:  All right, what is the next information we have?

CPT SOMERS:  With reference to the statement or list referred to by Lieutenant Paulk, I have conferred with the CID agents who have been looking for this list since it was requested, steadily since that time.  They cannot locate anybody whom they know of or whom they have been able to discern who knows anything about this list other than Lieutenant Paulk, nor can they find it.  I have not stopped them from looking.  I intend that they shall continue to look as it doesn't interfere with their other duties, but I would represent now that it is very unlikely we will find that list.

MR. SEGAL:  May we ask the names of the investigating officers who are responsible for the check for the existence of this document so that if necessary we may have an opportunity to talk with them also.

COL ROCK:  Mr. Segal, I am satisfied that the government has made and is making every reasonable effect to attempt to find the alleged document and at this time, assuming that the search is still continuing, your request is denied.

CPT SOMERS:  Now then sir, with respect to the Federal Bureau of Investigation Agent, Mr. Caverly, I will relay as best I can the information received from the US Attorney.  This was done through an intermediary because I was here in this hearing room when the phone call was received, and I do not wish to misquote it, but I will do the best I can to tell you the message.  The message was the US Attorney, Mr. Coolidge, had, I believe, checked with the Justice Department people in Washington, both his own and in the Federal Bureau of Investigation procedures to make their agents available to the defense in any preliminary proceedings and they do not intend to make him available for interview to the defense except on cross examination in this proceeding.  They do intend to make him available to testify in this proceeding.  That is the best I can relay that message as I understand it.

COL ROCK:  Okay.

CPT SOMERS:  I think, sir, that that covers the items that I was to check on.

MR. SEGAL:  May it please the investigating officer. In regard to the position that has apparently been taken by the Federal Bureau of Investigation or the Justice Department, in view of the fact that we have reason to believe that the agent has been interviewed by the prosecution or the investigating officers working on behalf of the prosecution, or that the agent in fact allowed some statement or report of his to come to the hands of the prosecution, we believe it is inconsistent with the rules provided in the Uniform Code of Military Justice to allow a witness to be called by the prosecution who, not of his own choice and free will, has declined to be interviewed by counsel for the defense, which I believe is the right of any witness to decline to do that, but rather he has been ordered not to talk to the counsel for the defense, while on the same token he has given some statements, some information to the prosecution.  If it is in the position of the United States Government that they will not permit this agent to be interviewed by counsel for the accused, it would be my request at this time, sir, to not permit the prosecution to call such a witness because it would be in derogation of the rights of the accused in this case to interview witnesses called by the government.

COL ROCK:  What is your authority, sir, in the Uniform Code of Military Justice?

MR. SEGAL:  Sir, we do have our copy of the code.

COL ROCK:  Here is a copy.

CPT SOMERS:  If I might add one fact while we are waiting for the defense, if the defense is concerned with the desires of the witness himself, the witness himself has expressed the desire not to be interviewed by the defense.

MR. SEGAL:  Well, I think that is something that can best be handled by a meeting between counsel for the defense and the agent at which time he may assert whatever position he desires to assert, but we are at least entitled to have the opportunity to talk to him.

CPT SOMERS:  Well, the defense, sir, has asserted that he may very well wish to talk to them, and it is only because the government is preventing him. I simply want to produce a counter at this time.

CPT DOUTHAT:  Paragraph 42c, page 9 -- 6, titled "Interviewing Witnesses."

(The manual was handed back to the legal advisor.)

COL ROCK:  I will hold the ruling on this pending more thorough review of the record.  Are there other points to be raised at this time?

MR. SEGAL:  Might at this time, sir, on behalf of the accused -- that is in regard to matters we've already discussed?

COL ROCK:  We are taking up new matters now.

MR. SEGAL:  Yes, a new matter.  If I may please, we would request leave of the investigating officer to have present here in the hearing room, on an as needed basis, persons associated with my office who are law clerks in that office.  I refer to, sir, Mr. Michael Renfro, R-e-n-f-r-o, Mr. John -- Mr. Joseph Burkett, B-u-r-k-e-t-t, and Mr. John Haynes, H-a-y-n-e-s, sir. Those three gentlemen are law clerks in my office.  They are students at law school the rest of the year, but are employed by me during the course of the summer, but they are in fact, sir, actively engaged in assisting me in the defense of this case.  More specifically, these men have participated, as a matter of fact, all of last night and early this morning in regard to both the role that we play in the civil action which was heard today before Judge Butler in the district court in Clinton.  They are assisting me in the preparation of the action that will be filed before the clerk before the week is out in the United States Court of Military Appeals, relating to certain matters taking place here.  Their assistance is required at various times in regard to legal matters that may arise in these proceedings and that, I believe, sir, in the same fashion as lawyers amenable to the discipline of this hearing and will respond to the discipline of this hearing.  I have reviewed with Captain MacDonald the role that they may be asked to play under a necessity and he has authorized me to state that he requests of the hearing officer that any one or all three, if necessary, on an as needed basis, that the men be made available to us here in court.

COL ROCK:  What has counsel for the government to say regarding this request?

CPT SOMERS:  Counsel for the government has no desire whatsoever to deprive the accused of the effective assistance of counsel.  We would point out however that available to the accused at this point are four attorneys, two civilian and two military.  I seriously doubt the as need necessity, and would wish a few minutes more to completely formulate a response

COL ROCK:  Does counsel for the accused feel that these gentlemen would actively participate during the hearing in the questioning of witnesses or in what respect would they be of assistance in the hearing itself to the accused?

MR. SEGAL:  Col. Rock, I might say first that we do not seek permission to have law clerks sit at our counsel table, just to have them seated in any one of the number of chairs here in the hearing room.  But it has arisen periodically in the course of this case that one or the other counsel for the accused has been required to leave to carry out the administrative matters, to obtain certain documents and records, which are kept both at our office in this building and in the office of the military counsel.  We have been required to have these persons go to the library facilities of XVIII Corps Judge Advocate General's office.  We are in this matter not only dealing with the immediate hearing but we are dealing with two additional pieces of litigation and I expect beyond that further matter of litigation, the basic function of the law clerks would be, of course to obtain whatever legal matters we need without requiring counsel to leave the room to obtain those.  On occasion it may be to follow up on leads of names that are given to us here in the courtroom, in these proceedings, to begin to determine the whereabouts of those persons while we are still in this courtroom, so at the adjournment we may be able to promptly locate people.

COL ROCK:  We will adjourn to consider both of these matters.  I cannot at this moment say when we will reconvene, but it will be as soon as possible.

(The hearing adjourned at 1421 hours, 8 July 1970.)

(The hearing reconvened at 1508 hours, 8 July 1970.)

COL ROCK:  The investigation will come to order.  Let the record reflect that persons present at the break are now back in the hearing room.
     Mr. Segal, I have considered the issue of whether or not to permit Mr. Caverly, the FBI agent, to testify if he declines to discuss his testimony with you prior to testifying at this hearing.  I have decided that Mr. Caverly will be permitted to testify regardless of whether or not he grants you a pre-hearing interview.  Naturally you will be accorded the right to subject Mr. Caverly to cross examination at the appropriate time.  Therefore, your motion to exclude his potential testimony is denied.
     Reference the request for three law clerks to be permitted to sit in the hearing to assist counsel for the accused, I have taken this under advisement and will render a decision soon. Does counsel for the government have additional witnesses to present at this time?

CPT SOMERS:  He does, yes, sir.

COL ROCK:  Please continue.

CPT SOMERS:  The government calls Sergeant Tevere.
Webmaster note: 
The original stenographer's misspellings of Hagney and Selick were corrected to Hageny and Sellick, respectively, in this transcript.