Article 32 Hearing
Volume 9

July 21, 1970

Specialist Seven William Ivory (CID)

CPT SOMERS:  Your witness.

Questions by MR. SEGAL:
Q  Mr. Ivory, would you be good enough to give up the exact weight of the coffee table in the living room of the MacDonald house?
A  The exact weight I cannot give you.  I can give you an approximate weight of 25 to 30 pounds.
Q  Is that approximate weight being based upon your having put it on a scale at sometime in the past, but your inability to recall that exact weight?
A  No, it's based upon my experience of having lifted items 25 to 30 pounds.
Q  In other words, part of this experiment that you conducted with the coffee table, you never bothered to weigh that particular item.  Is that right?
A  That's correct.
Q  You don't know what the weight of the coffee is, as opposed to its legs, do you?
A  No, I only know that the top is heavier than the legs.
Q  Well, perhaps you could tell us to the extent that you could tell us the exact dimensions of the coffee table?
A  Off the top of my head I cannot give you those exact dimensions.
Q  Is that because you, yourself have never measured the coffee table?
A  I did not personally measure it.  It has been measured, but I do not have the dimensions.
Q  You have told us that the table was measured by some person other than yourself.  Is that right?
A  That's correct.
Q  Would you be good enough to provide us who measured that table?
A  It was one of two persons, either Mr. Robert Shaw or Mr. Hagan Rossi.
Q  And did they reduce those measurements to writing somewhere?
A  Yes, they did.
Q  Have you had occasion to look at those measurements at sometime?
A  No, I did not.
Q  You did not.  So you do not have any idea what the exact measurements of that table are?
A  I do not.
Q  You just have a guesstimate, I suppose, based upon looking at them?

CPT SOMERS:  I object.  He's answered that question.

MR. SEGAL:  This is cross examination.  I think you are entitled some latitude to develop the basis --

CPT BEALE:  The objection is overruled.

Q  Now would you be good enough to tell us, please, on what date you performed the first experiments referred to here this afternoon on the coffee table?
A  It was subsequent to the laboratory team going back to Fort Gordon.
Q  You mean sometime after February 21st?
A  That's correct.
Q  Could you be a little bit more precise as to what date the first of these experiments of the coffee table were performed?
A  I would say the date following, as close as I can recall.
Q  And then on how many succeeding days did the coffee table experiment continue?  How many days?
A  Every time I went in the house, not once, but every time I went in the house, the majority of the time, I would conduct it.  I would leave it, go do something else and come back and try it again.
Q  Would you give an estimate of how long a period of time the experiment took place?
A  I would say over a period of a few weeks.
Q  A few weeks.  And how often were you in the house on Castle Drive during that period of time?
A  Almost constantly.
Q  Well, do you mean once a day, twice a day?
A  Taking into consideration the break for lunch, I'd say twice a day.
Q  And that would be over a period of two or three weeks?
A  That's correct.
Q  Now who else participated in the coffee table experiment besides yourself?
A  Myself, there was Mr. Shaw.
Q  Did Mr. Shaw knock the table over?
A  Yes, he did.
Q  And who else?
A  There was Colonel Kane.
Q  Colonel Kane participated in the coffee table experiment?
A  Yes, he did.
Q  Are you telling us that he, himself, knocked the table over?
A  Yes, he did.  Other investigators were there, Mr. Grebner, the Chief of the CID here at Fort Bragg, and at least one member of the Federal Bureau of Investigation, that I know of.  I don't know his name.  I can't -- it may be Mr. Tool, I'm not sure.
Q  Would you be good enough to tell us approximately when Colonel Kane participated in the coffee table experiment?
A  I do not know.
Q  Would that be April of 1970?
A  Possibly.
Q  It wasn't shortly after the CID, or the investigating teams from Fort Gordon left?
A  Oh, no, no.
Q  Much more recent than that?
A  Yes.
Q  And may I ask what the circumstances in which Colonel Kane came to be invited to participate in the experiment?
A  I was not present.  I do not know.
Q  Do you know who was present when that was done?
A  Mr. Shaw and I believe Mr. Grebner was there, and I'm not sure if Colonel Kriwanek, the Provost Marshal was there or not.  I do not know.  This is just something that's back there.  I don't know for sure.
Q  Something that is in the back of your mind that you can't be positive about?
A  Yes, about Colonel Kriwanek.
Q  Right.  How about the other persons you have named?
A  Those others I am sure of.
Q  You are sure because someone has told you about that.  Is that right?
A  Yes.
Q  Who told you about that particular incident when Colonel Kane was there?
A  Mr. Shaw and Mr. Grebner.
Q  And they, I suppose, also told you the results of the experiment?
A  Yes.
Q  They didn't -- you, yourself, didn't observe that experiment when Colonel Kane was there.  Is that right?
A  No, I didn't.
Q  Now you've testified in some detail this afternoon about the MacDonald house and the location of various items there.  Is that correct?
A  That's correct, sir.
Q  And you've also testified to certain to certain details, where you went, and at various times, what you did.  Is that correct?
A  That's correct.
Q  You've also given us time intervals, or time fixes as to when you did certain things on the morning of February 17th?
A  Correct.
Q  And you've also given us certain other details as to the locations of blood spots, et cetera.  Is that right?
A  That's correct.
Q  Now I assume that you had occasion to look at your file or some other document before coming here, so that you could give us accurate answers in those regards.  Am I correct?
A  You are correct.
Q  Now, may I ask what it is that you looked at in preparation for your testimony here today?
A  Nothing really specifically, just in keeping myself abreast of the case, and I have periodically reviewed the photographs.
Q  Well, the photographs don't indicate to you the various times that you performed certain acts.
A  That's correct.
Q  The photographs don't indicate when the doctor, say when Doctor Neal came and what Doctor Neal did.  Is that correct?  The photographs don't tell you anything about what Doctor Neal did when he came to the house?
A  No.
Q  Well, do I assume correctly that you had occasion to look at your records and determine to refresh your recollection about these various points?
A  Yes, well, if those are referring to records and my memory.
Q  I understand that obviously you have a certain amount of memory in this regard.  Is it fair to say that the records that you referred to is your reading file that you are in charge of in connection with this investigation?
A  That's correct.
Q  And may I ask when was the last time you had occasion to look at the reading files for the purpose of refreshing your recollection?

CPT SOMERS:  I object to this question.  It is irrelevant.  In fact, this whole line of testimony is irrelevant.

CPT BEALE:  Would you care to make an offer of proof as to what you are driving at?

MR. SEGAL:  Yes, sir, I want to determine to what extent the witness is testifying of his own independent recollection as opposed to past recollection refreshed by review of his own records, and I think there is some indication already that the witness has indicated he referred to documentation for purposes of refreshing his recollection.  And then we will go to the appropriate questions as to the matter.  I think the direction of where we are going should be apparent.  I would be glad to elucidate further.  I think it is fairly obvious, though.

CPT BEALE:  The overrule -- the objection is overruled.  You may continue.

Q  If I may ask the question again to you, Mr. Ivory.  Is it fair to say that you have recently reviewed these reading files in preparation for your coming to testify?
A  Yes.
Q  And to the best of your recollection how recent was that review of your files?
A  Today being Tuesday -- prior to the weekend.
Q  Prior to the weekend that just passed?
A  Yes, sir.
Q  Are you indicating that you had occasion to review the files, say, on last Friday?
A  I am in a continuous process of reviewing the files.  It's a continuous thing.
Q  Well, did you have occasion, however, last week on both Tuesday and on Friday to review the files for the purposes of refreshing your recollection about the investigation you were involved in?
A  Yes, I did.
Q  Did you have occasion to believe that you might be called to testify last week in connection with this hearing?
A  Yes, I believe so.
Q  So that it would be natural for you, in anticipation of being called here, to look at your records and your file to get ready to give the court the knowledge you have?
A  Correct.
Q  Do I assume again correctly that the reason you looked at your records was for the purpose of making sure that your recollection was not in conflict with anything you'd written down before, so you would be able to accurately testify here?
A  Correct, to see if I had forgotten anything.
Q  And is it also fair to say that in looking at the reading file, that it in fact did refresh your recollection to specific details of what you did and what other people did in the course of the investigation?
A  Not to refresh my memory; I had known normally, just reaffirmed what I had already known.
Q  You are not suggesting are you that every single detail that you testified to is, you know, on instant recall?
A  Oh, no, of course not.
Q  And that in fact it is easy to say that you looked at the file for the purpose of making sure that you could recall properly the details?
A  That's correct.
Q  And I would gather that since February 17th, 1970, you had some other official duties assigned to you besides the investigation of this case?
A  Yes, that's correct.
Q  As a matter of fact, you were assigned to the investigation now of a very serious explosion that took place on Fort Bragg in the last few weeks.  Is that right?

CPT SOMERS:  I object.  That's irrelevant.

CPT BEALE:  Objection sustained.  The last comment will be stricken from the record.

Q  How many other investigations not related to the MacDonald case have you been involved with since February 17th?

CPT SOMERS:  I object.  It is irrelevant.

MR. SEGAL:  The basis of the question is to establish whether or not this particular witness is dealing only with recall of the specific items of a single matter, of a single case, as opposed to having to keep track of a number of different investigations.  We have reason to believe on the basis of information we have, that, as any other investigator, that this person is in fact involved in a number of investigations, and that it is necessary to keep track of his file in each particular case, to keep his memory current and accurate for the purpose of testifying.

CPT BEALE:  Mr. Segal, based on what you said, then the logical question to ask this witness is very simple.  Are you, in fact, involved in other investigations?

MR. SEGAL:  I will accept that, and place the question to you in that fashion.

Q  Are you, or have you been, since February 17th, involved in other investigations, other than the MacDonald case?
A  Yes, I have.
Q  Could you give us just an approximate number of those investigations?
A  Three.

CPT SOMERS:  Object.

CPT BEALE:  Mr. Segal, I think that Colonel Rock has gotten the gist of what you are trying to establish.  I think perhaps you should go ahead and move to another area.

MR. SEGAL:  May it please the court, at this time I would respectfully request that the government make available for examination by the defense the file that this investigator has had occasion to review for the purpose of refreshing his memory or recollection before coming here.

CPT SOMERS:  I object to that.  The witness has come in here without notes.  He has not referred to any notes.  He's said that he has done nothing but reaffirm and refresh his memory prior to coming here.  There's no foundation laid for the production of these records, and we certainly object to their production.

MR. SEGAL:  May I say that it is the very fact that the witness appears in the courtroom without notes and testifies to great details that gave me cause, and cause to counsel for the accused to ask a number of questions of this witness.  It is very apparent that the enormous detail you are referring to, including such things as precise times, 0405 for certain persons, and 0445, other persons, does not seem readily apparent to me a detail or fact that would necessary be on top of a person's mind, particularly as it has likewise been established this individual has other responsibilities, for other investigations, where obviously times and dates for people involved.  However, the witness has gone beyond my surmise, or the surmise of the investigating officer, and that is he has said in anticipation of giving testimony here, he has sought his own file out for the purpose of refreshing his recollection, for the purpose of determining how accurate his own recollection was.  It is clear, therefore, that the testimony the witness has given today, or a portion of it, or a substantial portion of it, is not entirely of his own recollection, and aided by the use of documentation, and that documentation therefore becomes as much the subject of the cross-examination as his memory, because it is not entirely his memory, that he relies upon.  This is a classic rule in terms of the fact that when a witness makes reference to documents for the purpose of aiding him in court testimony, the documents must be examined by the cross-examining counsel, otherwise we do not really examine the witness' own recollection in that regard.

CPT SOMERS:  This witness has testified that he is testifying from his recollection.  The rule which the defense counsel has made reference to does in fact exist and it refers to notes or other materials which are brought to the hearing room and used to refresh the recollection of the witness.  This witness is, however, a trained investigator and it is not apparent to me, even though it may be apparent to the defense counsel, that it is necessarily unusual for him to remember specific times or dates or anything else; and for that reason I persist in my position that there is no basis whatever for the production of these records.

MR. SEGAL:  There is one other matter, if I may, I think the investigating officer ought to be aware of; that part of the reason for the rule of law which says that if a witness relies upon the examination of records for the purpose of refreshing his recollection, that since examination may be selective by the witness, that he may either intentionally, or inadvertently review certain portions of his records for the purpose of refreshing his recollection, and not reviewing other portions which may, in fact, conflict with his memory or conflict even with his own testimony.  It is even conceivable that within the same set of memoranda that he has occasion to refer to there were conflicting versions of facts, and that in selecting a special version or a single version to give, he nevertheless has rejected, accepting recollection of other facts, perhaps that are contrary and therefore cross-examining counsel has a right to say why did you select to recall a, or reply upon a version, when b version also appears in your file, which appears to be contrarily different.  And it is for that reason that the underlying documentation becomes the subject of a cross-examination, not because we seek to do anything improper, but simply because the witness, I think, has very candidly admitted with no hesitation really, that only on reflection, having -- yes, last week I anticipated coming here.  I looked at the file Tuesday.  Having not been called last week the witness has, again on Friday, re-looked at the file for maintaining and bring up to date his recollection of the facts.  It seems to me that the suggestion by government's counsel that simply the failure to bring the records into the court -- doesn't prohibit us from examining.  It is very obvious, therefore, that the witness did not want another party to examine his records, because of inconsistency.  He makes his examination at another place and closes the file and comes unarmed with those records.  The law doesn't recognize that kind of approach as a valid one to preclude the examination of the records of this witness.

CPT BEALE:  Mr. Segal, at this time your request for the CID reading file or files is denied.

Q  Now, Mr. Ivory, did you make some notations about the experiments you performed on the coffee table?
A  Yes.
Q  What kind of notations did you make about it?
A  The notations such as the reading file notations.
Q  Well, what is it that you wrote down about those experiments?  Did you indicate the date on which you performed it?
A  Yes.
Q  Do you recall what were the dates that you performed the experiments?
A  They began as I said before, after the laboratory team departed.  So it would be the 22nd of February.
Q  Are you indicating to us that if you examined the file you could then tell the investigating officer on what dates you performed the coffee table experiments?  Is that correct?

CPT SOMERS:  I object to this question, and this line of questioning again.  The defense is again attempting to get at the issue of the reading files in this case.  The witness has testified to the best of his recollection on this matter.

CPT BEALE:  Well, now, counsel, I believe the witness just stated that his past recollection is recorded and would be refreshed were he to look at it.  Is that correct, Mr. Ivory?

WITNESS:  Correct.  Now this would not be for each time the experiment was conducted.  It would be recorded for, say the initial one, and maybe some indication, some entries later on where subsequent experiments were performed, but not all of them, because it would be just in passing by the table and I would give it a flip and then it would go over, not being a planned experiment, but just being coming to mind, I'll try it again, and doing it right then.

CPT BEALE:  Well, now, Captain Somers, you have made an issue of this particular experiment.  Then to give the defense the full opportunity to cross-examine, it would be fair to let them have knowledge of when, if and when these experiments were conducted, and if the witness cannot recall it from his memory, but just sitting there without any notes, if in fact his memory can be refreshed then he should be given the opportunity to refer to those notes.

CPT SOMERS:  Well, the government will contend that when these experiments were performed would be totally irrelevant regardless.  How they were performed would be relevant, and the method of one of them can be inquired into by the defense counsel and answered by this witness, but whether it was done on a Tuesday or a Friday would be entirely irrelevant as to anything which could have anything to do with any issue in this case.

MR. SEGAL:  It seems the issue is not clear before the investigating officer, at this time.  We have not asked for anything at this junction, and I persist that I have a right to examine this witness further with regard to other details about the experiment.  It may be at the conclusion, that we will have to renew the motion for the records, but I think at this juncture it's irrelevant for the government to argue about the records.  We haven't asked for them now.

CPT BEALE:  That's quite correct, and I think the problem here, CPT Somers, you are trying to be selective about what is relevant and what isn't relevant reference these experiments.
     The least you can do is give the defense their opportunity to examine this witness on the experiment, so therefore your objection is noted, but overruled.

Q  Would your notations indicate the last time you performed the experiment?
A  Perhaps not.
Q  Perhaps not?  But would it give you a date that would enable you to calculate how long thereafter, that is how long after your last entry, did you perform your last experiment?
A  No, it would not.
Q  Now would the records show that you have made or notation you have made for yourself tell anything else other that the fact that on, say 27 February you performed the coffee table experiment?  Does it say anything else other than that with regard to this particular experiment?
A  It would probably say something like the coffee table was again tipped over and again landed on its top.
Q  Would it indicate to you on how many occasions the coffee table was tipped over against, say, the rocking chair that was located in the MacDonald house?
A  No, it would not.
Q  No notations of that at all?
A  No.
Q  Can you indicate to us on how many occasions, in fact, you tipped over the coffee table against the rocking chair?
A  It was never done purposefully to knock it against the coffee table -- I mean against the rocking chair, but on occasion it did hit against the rocking chair.
Q  Well, can you indicate to us how many times the coffee table was tipped over and fell up against the rocking chair?
A  A few times that I can recall.
Q  A few times?
A  Two, three, four.
Q  Does the record that you made of these experiments show the number of occasions that it was tipped over against the rocking chair?
A  Probably not.
Q  Now do your records show the location of the coffee table at the time you performed these experiments?
A  No, it would not, except probably to say that it was put in a position thought approximately to be its normal position by the couch, or something like that.
Q  And do I gather that that was an estimate made by you?
A  That is correct.
Q  Because no one had ever marked on the floor the position of the coffee table as it was found at the MacDonald house?
A  It was marked by other investigators.
Q  No, you don't understand.  Did you ever mark up the position of the rug on which the coffee table was found on the morning of February 17th?
A  The table was not marked.  However, measurements were taken.  
Q  The measurements were taken.  Will you indicate to us, now, please, exactly the measurements from which the coffee table was found relevant to the sofa and to any other fixed object in the room?
A  I cannot.  I did not take the measurements.
Q  Have you had occasion to refer to those measurements at any time?
A  No, I have not.
Q  Well, how could you reconstruct the experiment of the coffee table if you didn't know exactly how close the coffee table was to the sofa, say?
A  As I started to say, we put it in a position we thought may be a normal position varying in degrees and distances away from the couch.  We could never say we know exactly that's how the coffee table was standing before it was initially put on its edge.  We couldn't say that because we never saw it before it was laying on its edge.
Q  My question is to you if you took the measurements on the morning of February 17th or shortly thereafter while the coffee table was still in its position, did you not use those measurements for the purpose of running your experiment again?
A  I did not.

CPT SOMERS:  I object.  He's said that he did not take these measurements.  He's also said he hasn't seen them.

MR. SEGAL:  He has volunteered the information with regard to the existence of the measurements.  I think it is appropriate now to discuss those.

CPT BEALE:  Well, it is true that the witness has stated that he did not in fact take the measurements, so therefore the objection is sustained.

Q  Did you ever read those measurements?
A  No, I did not.
Q  You did not.  You don't know to this date what those measurements look like.  Is that right?
A  That's correct.
Q  How about the location of the rocking chair in the living room?  Do you have any notations as to the exact position of the rocking chair in reference to both the coffee table and the sofa and the near wall?
A  No, I do not; in reconstructing the scene, photographs were used.
Q  You were aware, of course, that there are problems with perspective and distortion that arises sometime, the angle at which a photograph is taken.  Is that correct?
A  This is correct.
Q  And would you not agree that the more accurate way of trying to reconstruct the scene, when it's available, is to use measures taken of the actual location?

CPT SOMERS:  I object.  Counsel has reverted to the procedure of testifying for the witness and then asking him whether this is right or not, and in doing so, using extremely long and involved factual situations.

MR. SEGAL:  I would suggest that if there is any problem in that regard, of course the witness can be advised that if he does not understand the question, he has the right to ask for it to be explained.  Although, I think that needless because Mr. Ivory has already indicated to us this afternoon that when a question was unclear he was in a position to ask us for a clarification.  Secondly, so far as positing various facts, I again reiterate, it is a fundamental rule of cross-examination, it is the right of cross-examination to posit certain possibilities to a witness and to ask him whether in fact he accepts the facts that are posited to him.  He has the right to refuse to accept them.  He has a right to accept them, or he has a right to accept them in part and reject in part.  And if, in fact, we posit facts and he agrees to them, then in fact that becomes his testimony.  But that, as I have learned it for many years is what cross-examination is about, and what distinguishes it from direct examination where you may not suggest the existence of any given fact.

CPT BEALE:  The objection is overruled.

COL ROCK:  However, I would request for the benefit of the investigating officer, once again try to make these as simple as possible so that we can get simple and clear answers.  It is my impression that the basic experiment was conducted to determine whether this item would land on its edge, and the witness has indicated that in none of his experiments did it so land on its edge, but on its top, and therefore I fail to see the relevance of the measurements which were made indicating where it was located at the time the photographs were made.  I'm a little bit confused, counselor, about your line of questioning.

MR. SEGAL:  May I explain the basis for my questions then, sir, and that is that as we examined the physical evidence together with the investigating officer, and as we have looked at various photographs, there appear to be other items of furniture in very close position to the coffee table, and specially I had occasion to refer to the placement of the rocking chair, which in some photographs appears to be cheek and jaw against the coffee table.  It seems to me that if the experiment is to receive any weight whatsoever, let alone be even admitted into evidence, there should be some indication here as to whether the experimenter took cognizance of the fact the photograph of the crime scene placed the coffee table not in some general position unrelated to other items, but in fact it places it in a position of one close to the sofa, at least at one end of it, and then again almost up against a chair that was in the room and is still there.

COL ROCK:  Fine.  I understand your reasoning.  I would suggest that perhaps maybe some of the photographs would expedite the procedure.

MR. SEGAL:  In view of the hour, sir, I want to just very briefly shift to another matter, because I think we will have to resume this particular subject tomorrow.

Q  May I ask, Mr. Ivory, what experiments or investigations you have made in the MacDonald house since May the 1st of 1970, if any.
A  Since May the 1st?
Q  Since May the 1st, that's right.  That's the date on which Captain MacDonald was formally charged in this case, and I picked that arbitrarily as a point of demarcation.
A  Possibly to try the table again.  To draw on dates exactly, I would have to go to the seal log, the register, which is posted inside the house, and then I could say, yes, I was in the house in this period and that period.
Q  Can you indicate from your recollection, at least from this point, what, if anything, of major significance to you has been done inside the MacDonald house since May the 1st, 1970, in regard to the investigation of this case?

CPT SOMERS:  I object, as I don't see the relevancy.  

CPT BEALE:  Would you indicate it, please?

MR. SEGAL:  The relevance is that we believe that we are entitled at this time to request tonight for permission for counsel for the accused to be in these premises for the purpose of making an examination so that when we renew tomorrow's cross-examination, we will have a further opportunity to view this physical location of the crime.  We have never had this opportunity to do so except on the single occasion in the presence of the investigating officer. We think we are entitled to, in particular in this crucial time in this case, to have counsel for the accused alone without the prosecution present and to have access to these premises, and we think it is undesirable and improper that we have been denied them up to now, and I think at this point we are entitled to pursue and have the government show what, if anything, meaningful they have done for the last two months in regard to this building, because I put to the investigating officer that I have reason to believe that nothing of any great importance has been done, that we have simply been denied the act just because the government is unwilling to let us use the physical premises for the purpose of our own investigation, and that we have now arrived at that point in this hearing that they no longer can deny us that opportunity, and I desire to now establish it, if need be, although I frankly, I think it's so clear at this point that it may be necessary now for me to ask any additional questions in that regard.

CPT SOMERS:  The house at 544 Castle Drive is secured against all personnel except investigators.  It is secured that way because it is, in itself, evidence.  There will be -- the regulations surrounding such evidence do not permit it to be left in the custody of anyone other than an authorized agent, or personnel responsible for the custody of that evidence, or if such personnel are there, that they must be in the presence of such investigators or other personnel responsible for the custody of that evidence.  Now, the defense in this case has been in the house when we viewed the scene in a group, and they have access to Captain MacDonald who lived in the house.

COL ROCK:  Mr. Ivory, is it reasonable for you to make the keys and yourself or Mr. Shaw or some other agent available this evening to allow two members of the counsel for the accused to accompany you to the address at 544 Castle Drive?

WITNESS:  Sir, before I could honestly answer that, I would have to check with my commanding officer.  I would have to have his authorization.

COL ROCK:  All right, how long do you think that would take you?  Fifteen minutes, or so?

WITNESS:  I beg your pardon, sir, I don't know.  I may have to trace him down.

COL ROCK:  Well, this hearing will recess until you've had sufficient time to try to determine the feasibility of this course of action.

WITNESS:  Yes, sir.

(The witness departed the hearing room.)

COL ROCK:  What else do you have, counsel?

MR. SEGAL:  What I want to request of the investigating officer is that permission be granted for the examination of the house be made by counsel for the accused, in the absence that is that we be permitted to be inside of the house without representatives of the prosecution being present.  Now I would suggest to the investigating officer two matters, one, that all the persons we have permission to enter the premises are attorneys at law, and are subject to the sanctions of the supreme court of various states; that any attempt by anybody to in any fashion, interfere with the evidence in that premises would be dealt with in the most severe fashion.  But further, sir, I would suggest to the investigating officer, that myself and whoever else is permitted to enter the premises in the absence of a member of the prosecution be placed under oath at this time to state what their obligation will be and they will accept the responsibility to in no way interfere with the premises or the evidence contained therein, and we will respond again under oath tomorrow as to what, if anything, we may have done, if that kind of assurance is necessary.  But I do think that we have arrived at the juncture now, almost five months after the crime that has taken place on the premises, that counsel for the defense at long last ought to be allowed to conduct its own investigation, without having looking over its shoulder the prosecution.  We have never been given that privilege to look over the prosecution's shoulder, and it seems to me that the government has not articulated any reason at this time, they could reasonably expected anything to go wrong with us being allowed to be inside with the furniture and the boards  that are left in that house.  There are, among other things, inventories of the property there.  There are photographs of the property there.  The government has other assurance that nothing can happen or go astray.  It seems to me that it would be regrettable at this point that we should even be arguing of our right to have access to the building.  There can't conceivably be anything that is in the building that the government would not know instantaneously had either been removed or tampered with if someone was inclined to do so, from that standpoint of the accused.  But I must say, sir, frankly, Colonel Rock, that I take some umbrage at the suggestion that counsel for the accused is less honorable than counsel for the prosecution.  I think we are entitled to same credibility before this investigation or any other bar as attorneys of the court, as attorneys representing the accused, who are certified to some extent and are members of the bar of various courts, that we would in fact accept our responsibility to use these premises only in the legitimate purpose, and, of course, in no way attempt to impede this investigation or other investigation that might be made at a later time.

CPT SOMERS:  Sir, to begin with, the regulations surrounding the security of evidence of this type will not permit personnel to be present in the house without the custodian or the person charged with the custody of the house present.  Now the government counsel has never been present in that house except under those circumstances, and as I understood the regulation surrounding it, neither can the defense counsel.  It is not a question of whether they could reasonably be expected or not reasonably be expected to change or alter, or in some way tamper with that house.  It is a question of whether or not the army Regulations will permit it, and I do not believe that they do.  I personally feel that it goes too far for the defense to go in there at all, however, if they are permitted to go in there I can be fairly certain, sir that it cannot be in the absence of the person charged with the custody of that house.

COL ROCK:  Perhaps there may have been some misunderstanding, because it was my intention that if, in fact, arrangements can be made, that some representative of the government charged with overall responsibility for the house, and its contents would be so present.
     There is no question in my mind.  Apparently this has been misconstrued, but there will be some governmental representative there at the time.  

MR. SEGAL:  That is the point of my suggestion, sir, that I think we should be entitled to be there, at least without a representative of the prosecution.  If, in the interest of protecting the security of the property I would suggest --

COL ROCK:  I had not intended -- excuse me -- that counsel for the government would be there, Mr. Segal.

MR. SEGAL:  I did not assume that, sir, but I did assume the fact that one of the investigators in this case, who are really agents of the prosecution would be present.  But my suggestion to the court will be twofold; that either a person who is totally uninvolved in any aspect of the investigation, designated military officer, be present for the purpose of securing the premises; or that the legal officer of this investigation be present.  We would accept his presence as a neutral observer to assure the preservation of the premises.

COL ROCK:  I'll have to determine what sort of an answer I get from this inquiry by Mr. Ivory, and whatever the regulations require of me in trying to accomplish basically what has been requested, I will have to accede to the regulations.

CPT SOMERS:  May I bring up another matter, since we are now without the witness, and I do wish to bring it up on the record.

COL ROCK:  Make it brief, please.

CPT SOMERS:  Yes, sir.  The government requests as the first order of business tomorrow morning that it be permitted to put Mr. Caverly of the FBI on the stand to testify.  We have managed by purely -- by personal favor of Mr. Caverly to delay his trip until tomorrow for him to testify, at the cost to him of some of his leave, and we cannot longer delay him for this purpose.  We request, therefore that he be permitted to testify as the first order of business tomorrow morning, because as you are aware, from that point forward he will not then be available, for another two and a half weeks.

COL ROCK:  This appears to be a reasonable request.

MR. SEGAL:  I am very much troubled, sir, because I fear that Mr. Caverly's testimony will not be short, nor will its cross-examination be short, and we have a problem here of a witness who had now come to us on cross-examination.  I would have been -- I would have thought it more helpful if we had known earlier today that this was to be the situation, to hold this matter until a few minutes before five p.m., and to announce that we are going to have a disjunctive examination of this witness, presents a great problem.  We have to abandon the preparation we are making of the cross-examination with Mr. Ivory, and to go ahead with the preparation on Mr. Caverly.  I do feel that it really stretches the many courtesies this inquiry has extended to all counsel, to place this matter so out of context.  I fear that we'd lose something substantial in not having the cross-examination of Mr. Ivory follow directly behind the direct examination and I think that we would be in a position of having to try and reconstruct what Mr. Ivory has said and done, and I fear that will lengthen the examination of Mr. Ivory because we are picking up pieces of today's testimony, all of which I think could have been obviated by a more prompt appraisal to all counsel of the situation involving Mr. Caverly.
     I think we could have proceeded in other fashion that would have avoided this kind of bind it places certain counsel for the accused in.

CPT SOMERS:  I would like to point out first that counsel for the accused has been aware for some time that Mr. Caverly would testify in this hearing in terms of preparation for him doing so.  And, second, that insofar as the government is concerned, the examination of Mr. Caverly should be very brief, and, as I have already stated, it has only been by virtue of Mr. Caverly's generosity in giving up some of his leave, that we've been able to retain him here this long.

COL ROCK:  When was counsel first advised that Mr. Caverly would be available tomorrow?

CPT SOMERS:  Sir, I was advised of this about mid-afternoon today, and I wished then not to break up this proceedings until it came to a natural breaking place, and bring this issue up.

COL ROCK:  The request is granted.  Mr. Caverly will be the first witness of order tomorrow.

CPT SOMERS:  Very good, sir.

COL ROCK:  This hearing will be recessed.

(The hearing recessed at 1651 hours, 21 July 1970.)