Article 32 Hearing
Volume 3

July 9, 1970

Robert Shaw (CID) escorts Col. Rock and attorneys through the crime scene

COL ROCK:  Gentleman, I now wish to inform both counsel that at 1330 hours today I shall view the scene of the alleged crime at 544 Castle Drive.  In attendance will be counsel for both sides and the accused.  Mr. Robert Shaw of the Criminal Investigation Division at Fort Bragg will act as escort officer.  Throughout the viewing of the scene I may have questions to ask Mr. Shaw.  If so, each question and each answer will be transcribed verbatim. However, in the interest of efficient operation, if counsel for either side have questions, they will write said questions and ask them at a later date when Mr. Shaw is called to testify in the hearing.  If there are no further matters to be brought before the session we will adjourn until 1330.

MR. SEGAL:  Might we have leave to submit in writing any particular points of observation we would like the investigating officer to make this afternoon -- at this afternoon's viewing.  I propose perhaps note possibly two or three items, but they will be in writing with a copy to counsel for the government so that if we have occasion to refer to some point which has not been previously pointed out, the investigating officer will not need a hiatus to re-examine.

COL ROCK:  A very good point.  Counsel for both sides may do so.  If counsel for the government would like to do the same, then he may do so.  We will all meet at the house.
     The investigation is recessed.

(The hearing recessed at 1150 hours, 9 July 1970.)

(The hearing reconvened at 1335 hours, 9 July 1970 at 544 Castle Drive, Fort Bragg, North Carolina.  Present were Colonel Rock, his legal advisor, counsel for both sides, the accused, recorder, and Mr. Robert Shaw of the CID and the first question is asked outside the windows at the front of the house.)

COL ROCK:  Have the bars been placed on the windows by the CID?

MR. SHAW:  Yes, sir, they have.  The bars were placed there to secure the windows.

COL ROCK:  Oh, they have.  I see.  It appears rather rusty.

MR. SHAW:  Yes, sir.

COL ROCK:  The bars referred to are those on the front window adjacent to the front door on the lower floor.  The same is true on all windows?

MR. SHAW:  Yes, sir.

(The IO then moved around the house to the right and is standing at the rear corner to the left of the back door.)

MR. SHAW:  Sir, I might point out that this bush and the others have filled out to a large extent.  These bushes here (pointing to the right of the rear door) were almost nonexistent. They were that high (indicating two feet) and they were that way in April, but since that time they have grown and filled out.

COL ROCK:  I see.  Okay, let's go inside.

(Now in the utility Room.)

COL ROCK:  This represents substantially the condition of the -- of all rooms in the house as we visit them?

MR. SHAW:  Yes, with one exception; that those items we've collected as evidence are not here.

COL ROCK:  Right.

MR. SHAW:  Those items that have been released to Captain MacDonald are not here.

COL ROCK:  Affirmative.

(The IO viewed the bath off the utility room, the master bedroom, the front bedroom, the center bathroom and the hallway.)

COL ROCK:  Was that open?  (Indicating an opening in the ceiling in the hallway.)

MR. SHAW:  That was opened to allow some air into the house.

(The IO then visited the rear bedroom and moved into the living room.)

COL ROCK:  Do you have any way of knowing, Mr. Shaw, if the same bulbs are in here that were in here at the time?

MR. SHAW:  To the best of my knowledge, they are all the same, yes, sir.

COL ROCK:  In other words it would be approximately the same wattage or should be?

MR. SHAW:  Yes, I think they are the same bulbs.

COL ROCK:  Then they would be identical.  For instance, if this complex here (indicating a ceiling light in the dining area) and perhaps one had burned out, you wouldn't now necessarily know that, would you?

MR. SHAW:  There were no bulbs burned out at the time.  If they had been replaced since then, I would have a way to find out, yes, sir.

COL ROCK:  Right, you would know.

MR. SHAW:  Yes, sir.

COL ROCK:  There would normally be no reason to replace them, would there, unless it was burned out?

MR. SHAW:  Unless it was burned out, that's correct.

COL ROCK:  People normally contact you if a bulb was to be exchanged?

MR. SHAW:  Only myself and one other man would have access to the apartment.

COL ROCK:  Where is the phone in the kitchen?

(The IO standing in the doorway to the kitchen.)

MR. SHAW:  To your right, sir.

COL ROCK:  Has this door been taken off, or was that -- (Indicating a door to a cabinet.)

MR. SHAW:  That has been taken off, yes, sir, and sent to laboratory.

COL ROCK:  I would like to know if this light out here works.  (Indicating a light outside the kitchen door.)  There must be a switch someplace.

(A man was sent out to see if the outside light worked and it was determined that the back light was burned out.)

MR. SHAW:  Sir, on the exterior lights, Mrs. Kalin, next door, told me that she has changed the lights two or three times because they want them to keep burning.

COL ROCK:  I see.  Now which lights?

MR. SHAW:  I don't know.  I do know that the one light out here was burning that morning.  This light … (Pointing to the front of the house.) … was burning.  Now whether the kitchen light was burning, I don't know.

COL ROCK:  I'm not really interested on what was occurring at that time.  I am asking what the conditions are currently and whether the switches operate.

COL ROCK:  Mr. Segal, I believe you said you had a list of points which you wish to bring to my attention.

MR. SEGAL:  Would you indulge us for one moment, Counsel, there are a couple of things I want to put in writing.
     I submit these questions to you now in writing and Captain Somers may examine them.

COL ROCK:  Let the record reflect that Mr. Segal, as had been indicated prior to arrival here at the house, has submitted to the investigating officer, certain points which he wishes to have observed during my stay here at 544 Castle Drive.  The first item he has requested is that I examine the lamp on the dining buffet.

(The IO did as requested.)

COL ROCK:  The next item I have been requested to observe are scratch marks on the right arm of the rocking chair next to the coffee table.  Does this light work?  (Indicating the ceiling light in the living room, and it did not.)

COL ROCK:  Does either counsel object if I move this chair to some light?  Counsel for the defense or counsel for the government?

MR. SEGAL:  The counsel for the defense does not object.

CPT SOMERS:  No, sir.  The light is now on incidentally, if you will take notice.

COL ROCK:  Mr. Shaw, has this chair remained on the premises ever since the alleged crime?

MR. SHAW:  Yes, sir.

CPT SOMERS:  Sir, I think Mr. Shaw can tell you even more about this chair than that, in particular.

COL ROCK:  Well, I am not interested in more than that particular one observation at this time.  The next item I have been asked is to observe the new growth on the branches of the bush under which the ice pick was allegedly found.  I have already examined that growth and an explanation has been presented by Mr. Shaw also concerning this growth.

Q  -- Has any part of this house been rearranged within the last forty-eight hours?  I assume you mean, Mr. Segal, furniture arrangements?

MR. SEGAL:  Yes, sir.

COL ROCK:    Has any part of the furnishings been rearranged within the last forty-eight hours?

MR. SHAW:  Yes, sir.

COL ROCK:  For what reason?

MR. SHAW:  So that during the visit of the investigating officer the scene would approximate that which I observed on the 17th of February.

COL ROCK:  Final question -- has any part of the house been rearranged for the purposes of viewing the house by the 32 investigating officer; if yes, when?  I think the prior answers that question satisfactorily.

MR. SEGAL:  Yes, sir, it does, thank you.

COL ROCK:  Mr. Shaw, do you swear that all the evidence you have given here in this case is the truth, the whole truth and nothing but the truth, so help you God?

MR. SHAW:  I do, sir.

COL ROCK:  I have completed my examination of the interior.  Mr. Segal and Captain Somers, I have one other question that I wish to ask Mr. Shaw.  Mr. Shaw, does some occupant live in the upstairs room which is apparently over the kitchen living room area of Captain MacDonald's quarters?

(The IO is now outside the rear of the MacDonald residence.)

MR. SHAW:  Yes, sir.  That set of quarters is occupied by CW3 Kalin and the particular portion of his residence you mentioned is on the second floor.  It covers the kitchen, dining room and living room of the MacDonald residence, which is occupied by two dependent children.

COL ROCK:  I am satisfied with my examination.  Is there any further reason that you gentlemen wish to stay any longer?

CPT SOMERS:  I have none.

MR. SEGAL:  I have nothing else, sir, at this time.

COL ROCK:  All right then this portion of the hearing will be recessed until we can move back to the hearing room.

(The hearing recessed at 1415 hours, 9 July 1970.)

(The hearing reconvened at 1450 hours, 9 July 1970.)

COL ROCK:  The investigation is now in session.  Let the record reflect that we have returned from a visit to 544 Castle Drive and the persons who were present prior to the break for lunch at approximately 1220 hours are currently in the hearing room.  I believe the counsel for the accused has the floor at this time, or had you turned it over?

MR. SEGAL:  Yes, we have turned it over.

COL ROCK:  I'm sorry, counsel, excuse me.  Counsel for the government, proceed.

Questions by CPT SOMERS:
Q  Sergeant Duffy, when you asked over the radio net whether you could set up a roadblock, were you told then not to set one up or to put it off right then?

MR. SEGAL:  That's objected to.

CPT SOMERS:  I am offering him alternatives and then asking what else he may have been told.

MR. SEGAL:  I suggest that direct examination does not allow to place alternatives to the witness, but ask the witness to state the facts; that is the limitations to direct as opposed to cross.

CPT SOMERS:  I think I am permitted to offer him several alternatives.

CPT BEALE:  Counsel, your objection is overruled.  You may continue.

A  Sir, would you repeat the question?
Q  Yes.  When you asked over the radio network for permission to set up a roadblock, were you told not to do to it then, not to do it at all, to put it off for right then, or something different from all of this?
A  I'd say I was told they couldn't tell me exactly when to set it up, but to stay in the vicinity just in case they got word.
Q  Now you were asked, from one of the pictures, whether you saw a particular item.  Let me, if I may, just show you the picture to facilitate this question.  I show you Accused Exhibit A-6.
A  This is a picture of a knife in the master bedroom.
Q  You see the knife in this picture.  Now, the defense asked about that knife and asked whether you saw it, and you answered that you didn't notice it.  Now, are you saying that the knife was not there or that you didn't notice it there, or that you did look in that section, or what are you saying?

MR. SEGAL:  I must object again to the forming of his question.  I don't think it is proper in these type of questions which are purely susceptible as being responded to by the witness, to place alternatives, because it helps make up the witness' answers, and that is not a proper fashion for redirect examination for a witness whose knowledge is obviously within his own personal view.  He doesn't have to be suggested possible alternatives.

CPT BEALE:  I might suggest probably the best thing for you to do is to direct a question to the witness one at a time with each alternative framed in the question, if that's the way you desire to do it.

Q  All right, again directing your attention to that knife, and your answer to the defense, did you intend by your answer to say that the knife was there and could not be there?
A  No, sir, it is just that I didn't notice the knife being there at the time.
Q  I see.  Mr. Defense Counsel, could I see the statement to which you have been referring?

(CPT Somers was handed a document by Mr. Segal.)

CPT SOMERS:  If I might ask the indulgence of the investigating officer for just a moment.

COL ROCK:  Surely.

MR. SEGAL:  May the record reflect, sir, that counsel for the accused has given to counsel for the government a copy of a statement which has been referred to previously in cross examination of Sergeant Duffy as the statement that was taken by Captain Douthat on behalf of the accused, and which this witness has read and says it represents what he told Captain Douthat.

COL ROCK:  Affirmative, the record will so indicate.

Q  Sergeant Duffy, have I ever at anytime attempted to make you testify in any way untruthfully?

MR. SEGAL:  That's objected to, sir.

CPT BEALE:  Sustained.

Q  Have you testified here as truthfully as you possibly can?

MR. SEGAL:  That is objected to as presumed the witness has testified to the best of his knowledge.

CPT BEALE:  Sustained.

CPT SOMERS:  No further questions.

Questions by MR. SEGAL:
Q  Sergeant Duffy, just one brief matter.  Did you ever receive a radio call back to your request for authorization to establish a road block on Route 87?
A  No, sir, I didn't.

MR. SEGAL:  That's all.

COL ROCK:  I have two questions.  Did you at anytime, while in the bedroom, master bedroom, go to either the body of Mrs. MacDonald or to Captain MacDonald?  Did you approach their bodies?  Did you assist Captain MacDonald or get near either of the bodies?

WITNESS:  No, sir.

COL ROCK:  You have seen this exhibit A-6, which I now have in my hand?

WITNESS:  Yes, sir, that's correct.

COL ROCK:  Judging from the position of where you were standing, and observing, do you think it is logical that you would have seen such a small object as that?

WITNESS:  No, sir, I wasn't standing from a position like that.

COL ROCK:  Did you ever, at anytime, enter the living room?

WITNESS:  No, sir.

COL ROCK:  I have no further questions.  Does -- did you notice whether any lights were on in either the outside front of the house, or in the outside rear of the house?

WITNESS:  Sir, I'm pretty sure the lights -- I'm pretty sure, I'm not too sure -- but at the front there was a light on that night because that's where I got mixed up on the reflections from the MP helmet liners.

COL ROCK:  But you are not sure about the back light?

WITNESS:  When I went around the back, sir, it wasn't dark or nothing.  I mean maybe there was a light from another building, but it wasn't dark at the back doorway as I walked in.

COL ROCK:  When you made your search, I believe you said around 0430 in the morning, what were the weather conditions at that time?

WITNESS:  Sir, it was cold and rainy.

COL ROCK:  Did you personally have a flashlight to use?

WITNESS:  Sir, I can't remember if I had a flashlight then when I was searching, but it required MP duty that you --

COL ROCK:  I am asking just about that time.  Do you remember having a flashlight to use at the time of your search?

WITNESS:  I can't remember that, sir.

COL ROCK:  I have no further questions.  Any further questions by either counsel?

MR. SEGAL:  Yes, sir, if I may.

Questions by MR. SEGAL:
Q  Sergeant Duffy, do you recall when MP Jackson called your attention to the ice pick, did you have his flashlight at that time?
A  Sir, I cannot recall.

MR. SEGAL:  That's all.

CPT SOMERS:  Nothing further by the government.

COL ROCK:  I wish to advise you, Sergeant Duffy, that you are not to discuss your testimony with any individual outside this courtroom other than counsel for the accused or counsel for the government.  Do you understand?

WITNESS:  Yes, sir.

COL ROCK:  Now you are excused, subject to recall.

WITNESS:  Yes, sir.

(The witness saluted the IO and departed the hearing room.)

COL ROCK:  At this time I'd like to request from counsel for the government whether you have any information relative to the additional photographs about which the counsel for the accused inquired this morning?

CPT SOMERS:  I have those photographs.

COL ROCK:  You do have them.  Are counsel still interested in those photographs?

MR. SEGAL:  Yes, sir.

COL ROCK:  I'd like to make those available to counsel for the accused.

CPT SOMERS:  Sir, I have only one set and I do intend to use them in the government's case.  I will be glad to show them to them.

COL ROCK:  And they will be presented in due course?

CPT SOMERS:  Yes, sir, I intent to present them here.

COL ROCK:  If you will, please, allow counsel for the accused to look at the photographs and we can take -- what would you figure?  How many photographs are there?

CPT SOMERS:  Three, sir.

COL ROCK:  Would you figure a ten minute recess would be appropriate?

MR. SEGAL:  That would be more than adequate, sir.

COL ROCK:  We will recess for ten minutes.

(The hearing recessed at 1505 hours, 9 July 1970.)

(The hearing reopened at 1513 hours, 9 July 1970.)

COL ROCK:  The hearing will be open.  Let the record reflect that all parties present at the close are in the hearing room.  Proceed, counsel.

MR. SEGAL:  I would like the record to show, sir, that during the recess that was granted by the investigating officer, the government handed to counsel for the accused three black and white 8 ½ by 11, glossy photographs which would appear to be photographs taken outside the MacDonald house, apparently in the evening or early morning hours.  There are two requests I want to make in regard to these.  First of all, sir, I would ask the government to identify for us the name of the photographer who took these, and if the government knows, the time and date the photographs were taken.  Secondly, sir, I would inquire at this time as to whether the government has any other photographs of the outside of the MacDonald house that was taken on February 17th or February 18th, 1970, because on examination of  these photographs, while the investigating officer has not seen them possibly as yet, it seems to me that these will not necessarily assist in clearing up all the questions in regard to the alleged items of physical evidence that were found outside, and I think this would be a useful juncture in which we should determine ultimately what we are going to have in the way of outside photographs.

COL ROCK:  Let me address the first point first.  Does the government have the information relative to the date and time the photographs were taken and by whom?

CPT SOMERS:  The photographs were taken on the morning of the 17th of February 1970.  By whom I am not certain at this point.

COL ROCK:  Are there any more photographs of the outside of the house?

CPT SOMERS:  Sir, the files in this case are voluminous.  I have not seen all the files in this case and I do not know the answer to that question one way or the other.

COL ROCK:  May I see those photographs, please?

(The photographs in question were handed to the IO.)

COL ROCK:  Captain Somers, do you know whether there is in existence a photograph showing the alleged location of the stick that has been discussed?

CPT SOMERS:  I do know that there is no such photograph.

COL ROCK:  Counsel for the accused, I think that at the present time that these are all the photographs pertaining to what we have discussed thus far and I would like to proceed.

MR. SEGAL:  May I just state one thing, Colonel Rock.  That is I want to make a representation to this hearing that on the basis of our investigation on behalf of the accused in this case, we have very strong reason to believe that a photographer from the investigation laboratory at Fort Gordon, Georgia, was present on the morning of the 17th and took a substantial number of pictures of the exterior of this building; that there even exists a photograph showing the government's photographers at work.  I would further represent, sir, that it is so elementary in criminal investigation to have had exterior photographs of the building where weapons were found outside that may be relative to the crime, and where the existence of activities of various persons may have left the outside, it is inconceivable to me, sir, the government at this juncture had made available the photographs of the scene which will be useful to this investigation.  I am particularly troubled, sir, and I will state it to you at this time, that the photographs that were handed to us do not establish my point of reference which regard, for instance, to any clearly visible portion of the house that we have been dealing with, particularly there's no photograph here which establishes the relationship of this bush to the rear door of the house, and I submit to you, sir, that there is an obvious connection here that ought to be explored, and the government is aware of, I just feel, at this time, that there can't be any possible valid reason for the delaying in making available to this inquiry those photographs for the exterior of the house, and particularly the side and the rear, and that while I don't propose to delay any more this afternoon, I would really sincerely urge upon the inquiry that a direction be given to counsel for the government to perhaps pursue further with the authorities at the investigation lab at Fort Gordon, whether they do not have available additional black and white photographs of the exterior of the house that could be presented to this court next week, when certain laboratory technicians will be here.  At this time, as I said, I cannot envision any prejudice to the government, and I think it will substantially expedite the inquiry in this matter.

CPT SOMERS:  Sir, I do not represent to you that there are no other photographs available of the outside of the house.  I could not say that if I wanted to, because I don't know what else there may be.  I know a good deal of what's in this case.  I cannot represent to know everything in it.  I have shown counsel for the defense three pictures in question, pictures of the weapons.  Those are the only pictures -- I've described them as weapons -- they have been used as such.  They may or may not have been used that way, but those are the only pictures that I am aware of showing these objects.  Now, the government does intend to present a case and try to make it clear the placement of the weapons and any other point which at least it deems to be critical in this case, so it would appreciate the opportunity to do so before being judged by the defense as to whether or not what we have done is adequate.

MR. SEGAL:  I don't want to prolong the discussion, Colonel Rock.  I just want to say to you that it is not my understanding, first of all, I only request of the hearing -- investigating officer, the investigating officer's direction to the government's counsel to produce only the photographs of the alleged weapons.  It was my understanding that what we were discussing was the production of photographs of the outside of this house, which will be relevant to our understanding of what took place on the back of the location of the shrubbery here, and so that we might understand what were the possibilities that were available to the investigators, and whatever facts the investigators will be testifying to that were possibly be made more clear by reference to the photographs.  I do not understand that the investigating officer was giving to the government the right to pick and chose which photographs he would present, but we would have the black and white photographs showing the external portion described and they would be then used to refer to as needed in this case.

COL ROCK:  At this juncture, Mr. Segal, I am satisfied that we have represented here in these photographs what is germane to what has been covered at this juncture, and I would like to proceed.

CPT SOMERS:  If I may, sir, I would like to recover those three photographs before I do proceed.  Let the record reflect that I have now taken the three photographs in question.