Article 32 Hearing
Volume 8

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(The hearing reconvened at 0848 hours, 21 July 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that all counsel for the accused and counsel for the government are present.
     At this time I would like to present to counsel for both sides copies of the third volume of the proceedings.
     At the close of our last session, I believe, Doctor Jacobson was on the stand.  Is counsel for the government prepared for the government to bring this gentleman on board here?

CPT SOMERS:  Yes, sir.

COL ROCK:  Please proceed.

MR. SEGAL:  Just a moment, please, Captain Somers.  I do want to apologize to the court for the fact that Mr. Eisman and I were not here at the reconvening hour yesterday at 1330 hours.  I understand that the court was not informed properly as to the fact that we were unavailable.  I am sorry, but neither of us was in a position to contact the investigating officer, but I think the court has been properly advised by the media as to the rough general circumstances of what happened.  However, I am sorry that we were not available, because it is our desire to certainly go forward with as much speed as possible.

COL ROCK:  Your comments are noted. No apologies are necessary, counsel. Proceed please.

(Major Severt H. Jacobson was recalled, was reminded of his oath, and testified as follows.)

COL ROCK:  I believe at the end of our proceedings the other day, that counsel for the accused, I believe, had finished with their questioning, but I am not certain.  Is that correct?

MR. EISMAN:  No, sir.  At this time if I may continue the cross-examination of Doctor Jacobson, and then Mr. Segal will take over since he did not examine.  There is only a few more questions.

Questions by MR. EISMAN:
Q  Doctor Jacobson, do you have a copy of the medical reports of Captain MacDonald, Exhibit A-28?

(The witness was handed Exhibit A-28.)

If you'll turn the page with regard to the medicinal treatment of Captain MacDonald, if you will locate that please.  Now, doctor, with regard to the sedatives or sleeping pills could you tell me, please, the first time that Captain MacDonald was given any medicines for either sedatives or sleeping pills, according to the medical records?
A  Yes, this is on page 32 of the order sheet.  Nembutal, 200 milligrams, IV.
Q  All right, first of all would you explain to the investigating officer what Nembutal is?
A  It's Phenobarbital, one of the intermediate acting -- intermediate duration barbiturates, sleeping pill type.
Q  Now what would be considered the normal dose of Nembutal?
A  Well, it depends on what you are looking for.  If you are looking for just a sedative, perhaps 50 to 100 milligrams.  If you are looking for sleep or marked sedation maybe 100 to 200.
Q  Would 200 milligrams be considered a large dose of Nembutal?
A  It's the -- probably an upper limit on what we call hypnotic dose or sleep type dose, in an attempt to put someone to sleep.
Q  Now, normally speaking, I know you can't give a specific time limit on Captain MacDonald's particular physiologic functions, but when you are looking for this type of sleep with 200 dose of Nembutal, 200 milligrams dose of Nembutal, approximately how long in your medical experience would you feel the effect would last?
A  Well, it's an individual thing, but the average -- the average length of it is from three, four to six hours duration.  Like I say, this is individual.
Q  I understand.  Now, doctor, when was the next medication?

COL ROCK:  Excuse me.  Doctor, did you indicate the time he received this medication?

WITNESS:  Yes, it's on the -- been written on the chart and I've initialed it myself and it was given at 5:25.

Q  Now, at six am, thirty-five minutes later does the record indicate that any other medication was given to Captain MacDonald?
A  Yes, he was given Vistoril.
Q  How large a dose, doctor?
A  100 milligrams, and this was also given IV.
Q  By the way, when you IV, what is the effect -- in other words -- does a dose get to the system any faster, or make it any stronger as opposed to, say taking a pill?
A  Yes, it's almost immediate.
Q  What is Vistoril?
A  It's a mild tranquilizer.
Q  And the 100 milligrams would be considered what type of dose of that?
A  Well, it's relatively strong dose.
Q  Now at 7:30, doctor, if you'll look further on, did Captain MacDonald receive any further medicinal treatment?
A  Yes, at 7:30 he received 50 milligrams of Demerol, again IV.
Q  What is Demerol for the record?
A  This is a narcotic agent -- primarily an analgesic agent to reduce pain.
Q  Does it also have some effect on the mind?  Normally, does it have some sedating effect on the mind, or does this just go to the area of pain?
A  No, this has a -- it has a psychological effect, produces maybe a slight euphoria.  Again, it's individual, maybe some drowsiness.
Q  Now at 8:23, doctor, further on the record, is it indicated that further medication was given to Doctor MacDonald?
A  Yes, Demerol was again given, IV.
Q  Now the medication which you have described so far, Nembutal, Vistoril and Demerol -- would they each have individual effect, or in your medical opinion, would they all have some type of accumulative effect on the patient receiving it?
A  Well, in this sequence, one would think that they would have an additive or juncture effect, producing perhaps a little more sedation and definitely reducing the pain.

MR. EISMAN:  I have nothing further at this time.

Questions by CPT SOMERS:
Q  Doctor Jacobson, do you know how many x-rays were taken in the morning of Captain MacDonald's chest?
A  I cannot recall specifically how many were taken.  The only ones I recall, and perhaps the only ones taken, at the time he was in the emergency room were two chest x-rays.
Q  Did both of these x-rays show pneumothorax?
A  No, the first one, as I recall, did not show a pneumothorax, at least we could not delineate a pneumothorax.
Q  Doctor, do have an opinion as to how deep these pectoral wounds were, were they superficial or deep?
A  Well --

MR. EISMAN:  I'm going to object, because the doctor has answered my question, that he could not tell.

CPT SOMERS:  The doctor saw the wound.  If he has an opinion, he can give it.

CPT BEALE:  I think he did answer that question that he did not probe it, if I recall correctly, so the objection is sustained.

Q  Did you satisfy yourself, insofar as your treatment was concerned, that the injury to Captain MacDonald's head was not dangerous?

MR. EISMAN:  I'm going to object to the form of the question.  It sort of puts a onus on Doctor Jacobson who was the emergency room treating physician, and he stated that his primary concern was -- was looking for the more serious wound, or the possible life-endangering wound, as opposed to something which might be determined later to be serious, and I think the question, as posed, is an unfair one to Doctor Jacobson, in the relative form of treatment which he was specifically given -- given to Doctor MacDonald, because there was another physician who treated him, who was the actual treating physician, not Doctor Jacobson.  If that question is going to be asked, I think it should be asked of the treating physician, not Doctor Jacobson, who was acting properly in an emergency situation.

CPT BEALE:  The objection is sustained.

MR. EISMAN:  Thank you, sir.

CPT SOMERS:  May I ask the basis of sustaining it?  Can I rephrase the question, or am I not to go into this area?

CPT BEALE:  The questions have all been asked to the satisfaction of the investigating officer.

Q  Doctor Jacobson, do you know why Captain MacDonald was placed in the particular room he was placed in the emergency room?
Q  Well, the room off to the right is -- is used to, by us for those particular individuals that we may have to do some intensive resuscitative measures.  We don't know the status -- if there's a question in our mind that this individual requires some resuscitation, some immediate intensive care, we put him in this room.  It is a room that is fully equipped for everything from cardiac arrest to putting an air way in, suction, anything.
Q  Doctor Jacobson, did the fact that Captain MacDonald was a doctor have anything to do with the --

MR. EISMAN:  I would object.  That's completely improper, to reflect on the doctor or the hospital in that regard.

CPT BEALE:  Objection sustained.

Q  Doctor with respect to Captain MacDonald's specifically, do you know what the effect of the drugs that the defense has discussed with you was on him?
A  Well, I -- I can't really answer that in any completeness as far as all the drugs that had been given him.  I saw him around seven o'clock after we had given him Nembutal and Vistoril, and at the time, he was alert to question, although he was -- he was much more sedated than -- when he came in. We could speak to him and he would answer. He would answer rationally.  As far as after the Demerol, I didn't -- I didn't see him until, again, probably until about ten o'clock, so I couldn't tell you exactly the effect he got from his second dose of Demerol.

CPT SOMERS:  No further questions.

COL ROCK:  Doctor Jacobson, can you determine from the wounds what type of weapons may have been used?  This is based on any experience factors that you may have or from your medical knowledge.

WITNESS:  By type, what do you mean, blunt, sharp --

COL ROCK:  Yes, more specifically, ice pick type or knife type.

WITNESS:  Well --

COL ROCK:  Club, baseball bat.

WITNESS:  As far as the head wound, all I could say, it was blunt -- and as far as the others, all I can say is sharp, and I couldn't give you any more specific.

COL ROCK:  All right.  Do you know from any medical records regarding Captain MacDonald whether he is left or right handed?

WITNESS:  No, I do not know.

COL ROCK:  Do you know whether he wears glasses?

WITNESS:  No.

COL ROCK:  Do you consider that he was in great pain while he was under your observation?

WITNESS:  Well, he was about the time we put the chest tube in and after the chest tube was put in, the reason for the second dose of Demerol there.

COL ROCK:  During the time that you were with the patient, were there any other people, not medical personnel, but individuals such as CID agents or other interviewing or questioning Captain MacDonald?

WITNESS:  I don't recall any -- any non-medical people in with him at the times that I was with him, because usually the times I was with him, we were doing some sort of procedure or examination.  I do know that it was asked if they could see him, and I believe initially we said that they could not talk to him.  I believe Doctor Bronstein said that.  I am not absolutely sure of that, but I believe I recall it.

COL ROCK:  But during the time that you were with him, you were working with him medically and therefore it was inappropriate to question him.

WITNESS:  That's right.

COL ROCK:  If a person has a partially collapsed lung, a pneumothorax, in your estimation can that individual go into shock if it is in the order of magnitude of 20 to 40%?  In other words, is that one of the side effects of that type of injury?

WITNESS:  Well, certainly this is an individual thing and I would think that this remains a possibility.

COL ROCK:  A possibility?

WITNESS:  Yes, again, it's individual.

COL ROCK:  I understand that.  I have no further questions.  Does either counsel have any further questions of the doctor?

MR. EISMAN:  I have no further questions.

COL ROCK:  Does counsel for the government?

CPT SOMERS:  No, sir.

COL ROCK:  Doctor Jacobson, you are advised that you will discuss you testimony with no person other than counsel for the government or counsel for the accused.  Do you understand that, sir?

WITNESS:  Yes, sir.

COL ROCK:  You are excused subject to recall.

WITNESS:  Thank you.

(Witness saluted the IO and departed the hearing room.

COL ROCK:  Is counsel prepared with the next witness?

CPT SOMERS:  Counsel for the government now requests a thirty minute recess.

COL ROCK:  For what purpose, sir?

CPT SOMERS:  For the purpose, among other, of bringing the witness here.  He's on his way, I believe; and number two, other preliminary matters.

COL ROCK:  We'll take a recess.

MR. SEGAL:  May we inquire if the counsel for the government would advise us who the next witness is so that we may also get our work together?

COL ROCK:  Yes, I think that's reasonable.

CPT SOMERS:  The next witness is Mr. Ivory.

(The hearing recessed at 0912 hours, 21 July 1970.)