Article 32 Hearing
Volume 12

August 10, 1970

Specialist Fourth Class Kenneth Mica (MP)

(The hearing reopened at 0907 hours, 10 August 1970.)

COL ROCK:  The hearing will come to order.  Let the record reflect that all parties to the hearing are present in the hearing room.  I would like to at this time present to counsel for the government and to the defense for the accused volumes/transcripts of these proceedings that include the following testimony of:

Master Sergeant Medlin
Major Gammel
Captain Hancock
Major Jacobson
CID Investigator Ivory
FBI Special Agent Caverly.

Does the government at this time have anything to present to the investigating officer?

CPT SOMERS:  Yes, sir.  First the government would like to note that on Government Exhibit 87 through 96, which are the blueprints of the house, with some exhibits drawn on them.  The alterations requested with reference to fingerprints have been made and fingerprints have been charted on these exhibits.  I hand them to the defense for their examination.

MR. SEGAL:  Might we examine them at a later time, sir?

COL ROCK:  Certainly.

CPT SOMERS:  Secondly, at this time the government re-offers the statement of Rebecca Jane Cohen.

CPT BEALE:  Mr. Segal, now as you know, this statement by Mrs. Cohen was offered earlier in these proceedings, and in the absence of Col Rock I ruled that this statement was not admissible at this hearing.  However, in the interim, and the proceedings that the defense filed in the United States Court of Military Appeals, there has come to my attention a Memorandum of Opinion, and on Miscellaneous Document Number 70-48.  Contained therein at the bottom of page 3 and top of page 4 is certain language which appears to make the statement of Mrs. Cohen, at least admissible at this stage of the proceedings.  Whether or not the same would be culled from the final product will be something for Colonel Rock to determine at a later date.

MR. SEGAL:  If I may comment upon that.  I certainly am familiar with the memorandum of the court, Colonel Rock and Captain Beale.  I don't have any quarrel with that as a very generalized proposition of military law.  But, however, that generalized proposition of military law does not, sir, in my legal judgment, have applicability in a 32 proceedings involving a triple homicide.  That is a generalized statement which deals with an inquiry in the court, the investigating officer, is conducting an informal proceeding, as is the most appropriate way of proceeding in the average court martial investigation.  But in a capital case, based upon all the currently notorious capital cases that are going on in the military, such a document is not being received in my judgment, is not properly received because only a fair reading of it, of course, would give Colonel Rock a perspective, and I know that Captain Beale, having read it, the material contained therein relates largely to discussions had by persons, who it is unclear, even knew Captain MacDonald at all, and apparently had only the most cursory contact with Mrs. MacDonald; and therefore it seems to me that on a general basis it is unreliable in such a vague kind of discussion of what a deceased person may have said in general conversation, that to consider it here, even to let it come into the record, seems to me perhaps to bring prejudice against the accused.  I think we have attempted very scrupulously throughout these proceedings -- I mean the investigating office has -- to avoid any measure of element of prejudice to the accused.  Second, sir, this particular witness, if her testimony has any probative value whatsoever, who I have reason to believe was available during the early weeks of these proceedings, and certainly if the government had indicated that it was going to use her testimony, that perhaps it could not wish to hold her, the defense should have been made aware of that and given the information that she was not going to be called in person, and perhaps we might have thought it desirable, although I doubt it, but I think it may have been that option available to us to take another affidavit or statement from her.  But to have the witness -- to notice us that she's available and then to allow the witness to leave the jurisdiction of the investigating office with testimony not as direct and germane, and therefore is not much to quarrel about, but rather testimony that is vague, repetitive of third persons, not having to do directly with Captain MacDonald, seems to me to go to the area of prejudice which the memorandum of opinion obviously does not address itself to.  It does not address itself to the mere question in a tremendously serious proceeding where the Article 32 officer has elected to wherever possible, where there is germane information, to take it by the actual oral testimony of the persons and certainly at least we are limited to non-oral testimony to direct statements of the observations made by that person who is pertinent to Captain MacDonald.  To let Mrs. Cohen's statement in goes beyond that prior ruling.  In -- it lets in a statement about what Mrs. MacDonald and other persons remote said and commented on in her presence, none of which is ever suggested that Captain MacDonald heard himself, either acknowledged or indicated a contrary or similar view, or any view at all in these things.  Under all those circumstances I do think that Mrs. Cohen's statement adds nothing really to the government's case except one thing, the element of possible prejudice to the accused.

CPT BEALE:  Well, again, Mr. Segal, your comments are noted, but the tenor of your arguments appear to go to weight to give the statement as opposed to the admissibility, so therefore it is admissible and it will be marked as a government exhibit.  Mr. Segal, have you had an opportunity to examine the exhibit which has been marked as G-99?

MR. SEGAL:  Yes, we have a copy of that document.  I would like to reserve the possibility of making some further request in that regard, to that statement, but I don't want to make it now because I want to think through my position after having a chance to reread Mrs. Cohen's statement.

CPT BEALE:  Very well.

MR. SEGAL:  That's G-99, sir?

COL ROCK:  G-99.

CPT SOMERS:  If I may, sir, there are two things I'd like to say about that statement with reference to what Mr. Segal has said.

COL ROCK:  Before I read it?

CPT SOMERS:  Yes, sir.

COL ROCK:  Proceed.

CPT SOMERS:  One of them is that, as a matter of fact, Mrs. Cohen left here before this hearing started; and secondly, the Cohens ETS from the service and could not be held here.  That's all I have to say.  

(Colonel Rock read G-99.)

COL ROCK:  Government Exhibit 99, statement of Mrs. Cohen.

CPT SOMERS:  At this time the government re-offers a copy of page 116 of the Esquire magazine of this case which was at the one time marked G-86 and then was not received into evidence.

MR. SEGAL:  May we see the page, please?

(The document was handed to Mr. Segal.)

MR. SEGAL:  At this time I would ask for an offer of proof as to the relevancy and materiality as to the page of the magazine.  All that I observe on G-86, sir, is, of course, the outline of two markings in pencil or pen made by laboratory people.  We, of course, have not received in evidence all the other actual materials the laboratory people used to make their reports, and I am unclear as to what G-86 is being offered for in connection with the laboratory exhibits.

CPT SOMERS:  At this time, sir, the government would state that the outlined portion marked "EXL 25" on the bottom left side of the page is outlined or does outline the thumb print of Captain MacDonald.  I could bring Mr. Medlin here to testify to that, but I think probably you would prefer that we not take that procedure at this point.  This information is not now contained in a written laboratory report, but it will eventually be thus contained.  Further, this is a page which contains a description of the -- of another case in which the modus of this case was similar, in that the word "pig" was scrawled at the site of the multiple murders and it is for this reason both the thumb print and this printing is offered.  It is now marked G-86; it will have to be remarked since there is a G-86.

MR. SEGAL:  I gather, sir that the page is therefore being offered at this time for the contents of the page according to Captain Somers.  If that be so, sir, I would ask that the court at this time rule upon my request that all other adult magazines and books in the MacDonald house be marked as defendant's exhibits, and that we will move, however, not to have them all introduced, but we will move for selective ones because we intend to show that Captain MacDonald's fingerprints are found not only on the page of a magazine which circulates about one million copies each and every month, but also his fingerprints are found upon magazines and books dealing with the care of children, with the care and saving of lives of other people, and his fingerprints are found on a great deal more literature which is more germane in terms of Captain MacDonald's attitudes, postures of his reading, than is a single page of a magazine.  In other words, sir, I am suggesting that if the government chooses to mark one page of a magazine, this opens up the right of the defense at this time to request, first of all, that every book we now be allowed to examine, which we have not been allowed to do before, and to move and mark as defendant's exhibits all other books where we find Captain MacDonald's fingerprints or other evidence that he, in fact, read those books.  It seems to me that is the necessary consequences of the government extracting a single page.  I would also say, sir, that we would insist that it not be received at this time until there is a written report.  I don't quarrel with Captain Somers' suggestion that there will be one in the future, but it is premature to admit it at this time.  As I understand the procedure we've adopted in this case, if the government's witness would not be ready now, I understand we would entertain a subsequent motion, and I would not think it germane at this time or appropriate to receive this report that those fingerprints are, in fact, Captain MacDonald's without the written documentation to support it.

CPT SOMERS:  Well, whether this is germane with respect to the fingerprint, it's also germane in the view of the government with respect to the contents of the page.  The government has told the defense before that if it wishes to view the house we will arrange for it to go back in the house and look at the items in the house.  If it wishes to view any of the evidence which is in the evidence locker, we will arrange for it to be able to do that.  With respect to whether that is the fingerprint of Captain MacDonald, I gave the investigating officer an offer of proof that it is.  I can bring Mr. Medlin here to testify to that but I really suggest, sir, that that's not necessary, and that it is a great deal of expense and difficulty for something that's really not necessary.

COL ROCK:  Are these alleged fingerprints supposed to be bloody fingerprints, or just fingerprints?

CPT SOMERS:  There is no blood, so far as I know, on the fingerprint in question.  There is a bloody finger outline on that magazine.

COL ROCK:  I am aware of that testimony, but then what is the relevance of the fingerprints on this particular page, other than you might find the fingerprints, I presume, on thousands of pages of the voluminous reading material contained in that house?

CPT SOMERS:  Sir, the government's contention is clearly that the explanation of Captain MacDonald for what occurred at his house is not correct; that Captain MacDonald fabricated this story.  We are attempting to show the source from which he could very well have fabricated, not only the story, but the word "pig" on the headboard, and for that reason we suggest that it is germane and relevant, particularly with respect to the offenses committed.

MR. SEGAL:  If I may, sir, I don't mean to prolong the discussion, but there is something I think perhaps the investigating officer should be made aware of, and that is that first of all, I've never suggested we need to bring Mr. Medlin here.  My statement was simply that if we'd even consider such a thing, his written report would be sufficient.  But it is not sufficient for counsel to testify, particularly counsel who is not a fingerprint expert, who's done the work. But even more important, and I might advise the investigating officer, that Mr. Medlin was interviewed under oath in regard to the examination of the Esquire magazine.  This interview took place with Mr. Medlin on 29 June 1970, and that on page 19 of the transcript of that interview, sir, I would read to you an extract of his statement.  I would be glad to make the full statement available to the government or to the court if it desires.  To give it context, the question was put to Mr. Medlin, which was put to Mr. Medlin by Captain Payne, P-a-y-n-e, Chief of Military Justice Section at Fort Gordon, Georgia, who was making the inquiries at the request of counsel for the accused, and the question was put --
"The fingerprint outline or the impression a person would leave.  Is there anything else that you could recall that you examined for fingerprints other than what we have discussed as far as the front room?  Answer: We returned to the laboratory certain books, an Esquire magazine, and a box that contained a game.  Question: Did you find any fingerprints on the Esquire magazine or the box?  Answer: We found a number of latent prints on the Esquire magazine.  However, was -- this could have been made by anyone.  Some of them are identified as belonging to Mrs. MacDonald, some by Captain MacDonald, and inasmuch as the magazine had been looked at by other members visiting the scene and at the scene, it was determined by the Chief of the Division that the magazine itself was not evidentiary, because it was a common piece of equipment there."
Now, I think in view of that kind of sworn testimony by Mr. Medlin, and the judgment exercised and commented on by the Chief of the investigating team, in view of the investigating officer's own comments, that to select a page out of a whole magazine and suggest that that gives rise to something which could have been learned by anyone reading any newspaper, or listening to any television set or radio, is to blow up all out of proportion the significance of page 116, and again introduce the element of prejudice in the case of the accused.

CPT BEALE:  Mr. Segal, your comments have been noted for the record, however, again in accordance with the memorandum of opinion, it appears that the Court of Military Appeals has determined that this type of thing is admissible at this stage of the proceedings, and the weight to be given will be something that Colonel Rock will have to resolve in his own mind at a later time.  Therefore, this page 116 that has been extracted from an Esquire magazine will be marked as G-100.

MR. SEGAL:  Well, may I say, sir, that it should not be received at this time, subject to the written report introduced because we still have no identification of it.  Again, I understand that Captain Somers, that he has been advised by other persons, but it seems to me in regard to this that the very minimum that the government could do in support of trying to put in page 116, is to give us the written statement so that it may be part of the record, and we would not object to it at a later time.

CPT BEALE:  Mr. Segal, I think for purposes of your objection here, Colonel Rock will disregard any particular fingerprints on this page unless and until sometime the government chooses to put in some affirmative evidence of this.  If they fail to do so, then the fingerprints on this page will be disregarded completely.

COL ROCK:  Government Exhibit 100, extract of page 116 of March issue of Esquire magazine.
Does the government have anything further?

CPT SOMERS:  At this time the government offers two documents, statements taken from Captain MacDonald on 6 April, in the morning and the afternoon of that day.

CPT BEALE:  Has the defense had an opportunity to see these?

MR. SEGAL:  Yes, we have, sir.  May we have just a moment before we comment on the government's offer at this time?

MR. SEGAL:  Col Rock, in regard to the government's offer of these statements of April 6th, 1970, it seems to me the government's attempting to do this by merely offering the documents at this time, without the investigators themselves being called and having germane questions put to them, raises a very grave problem at two levels.  First of all, sir, you are at perhaps somewhat of a disadvantage in not having read the statements, but I can say to the court, and I think the government's counsel will not deny, that an overwhelming portion of these 35 pages in one statement and 38 pages in another statement represent not statements of facts by Captain MacDonald, but speculative hypothetical observations and suggestions made by the investigators.  That is, you'll find in here all kinds of statement made by Ivory, or Shaw, or Grebner, about what about such and such circumstances, and going on speculating things that are one, not in fact true in regard to the specific case, and which appears to be generally hypothetical statements.  Now, in being allowed to put the statements in, rather than calling the individual witness and saying to Mr. Shaw, Grebner or Ivory, did you interview Captain MacDonald on 6 April?  Did he say anything about what had happened at this point?  We could have under that procedure the avoidance of letting all their hypothetical speculations in before the investigating tribunal, but in fact, if the government thinks it is important, get the words of Captain MacDonald as given to the government's investigators.  Now, I suggest the government's procedure in going about it in this fashion, that is attempting to mark the documents, is really not so much because Captain MacDonald's words are what the government seeks to put before the investigating officer, but it seeks to put in its very, very roundabout obtuse manner, and I think highly improper, and very unusual manner, to put before the investigating officer the theories and hypotheses and the speculations and the sheer daydreaming of the investigators, which are not at all admissible under any conceivable rule of evidence that you would apply here.  So from that standpoint I think it is very, very dangerous.
Now, secondly, sir, there are a number of absolute categorical full statements made by the investigators to Captain MacDonald.  Now, some of those full statements have already been somewhat made apparent in this investigation, that is that certain photographs were presented to Captain MacDonald for the purpose of asking him to explain how such and such physical facts came about, when in fact it was admitted here in these proceedings that certain of the photographs did not, in fact, reflect the crime scene exactly as it was.  You may recall, sir, the photograph of the sofa in regard to placement of certain clothing, photographs of the steps leading from the living room toward the bedroom area, where clothes were absent from certain photographs, but these photographs -- plus the photograph which shows the changing position of the plastic flower pot, which the investigators apparently dwelled on ad nauseam, is allowed to come in that way, sir.  Now I say that that is not the proper way.
We are not here in any way to delay these proceedings.  It is an absolute strain on the defendant and the defense to prolong these proceedings, and for me to suggest, sir, that it would be proper for the government merely to hand these statements in and say that you, as the investigating officer, will naturally cull out all the inappropriate things, is to permit a procedure that I know of no parallel to in any kind of investigation.  It seems to me that the questions or theories that are put to a witness or to a defendant are not the evidence of the case.  It may only sometime be relevant to put the question that was put to the accused as a suspect so that he may understand the context of an answer, but we first ought to try to get the answers effected, and if the context is not clear, perhaps the prelude to the answer might be necessary, but under this circumstance of one, the largest part of this document contains the theoretical speculative questions put by the investigators, that they are undoubtedly false statements that were made either intentionally or accidentally, or perhaps as part of the technique of the investigation which are obviously false, and we would therefore receive in this record as statements that are not true, but any evidence here that are allowed to come in we know are not true, it seems to me is a very serious kind of error to make.  There are also a number of -- I also suggest, sir, that since the witnesses are available, the government ought to be required at this point to bring them in here and let them ask the appropriate questions, and let's elicit it.  It avoids all the problems of going into matters which would probably never be admitted under any other fashions.  It seems to me that this is a back door approach to attempt to put in something that under no legal procedural in the Anglo-Saxon American world, in the legal world that any of us know anything about, be it Military Courts, United States Federal Courts, or any State Courts, that anybody would be allowed to put these kind of statements as they stand into the record.  They are not the kind of statements that are conventional questions and answers, you ask an accused what happened at such and such a time, what did you do?  These are different statements, sir, and of course, you would have to read them to appreciate what I have suggested.  I'd be willing to have the legal advisor read these statements, sir, and advise you whether in fact I have misrepresented them or not to you, but I think you'll find that I have not misrepresented them, and that to avoid the possibility of prejudice in this case, that I suggest you reject the offer of the statements and allow the government, if they so desire, to call any or all the three witnesses who were present at the interrogation on 6 April, and let them at this time testify, and we will stand aside and wait for that, although we do it at the peril of having to upset a time schedule of witnesses coming in from various parts of the country.  But it seems to me sufficiently important to not let the government put in something that they know they have no right to get in here, to set aside all other matters and do it in the this fashion.

CPT SOMERS:  In the first place, I think I should point out, the term admitted, or admitted into evidence, has no relevance here, because that's not what we're doing here.  I point out that the memorandum of opinion, which we've had reference to before clearly states what should come before this Article 32 Officer; with reference to whether there is speculation of investigators of Captain MacDonald in those written statements, the government does not deny that that may be true.  Again, to the extent that speculation in there seems to indicate something which is contrary to facts, the facts are before the investigating officer.  He can decide that himself.  Again, we are talking about weight here and not whether it should be considered.  Those are the complete statements taken and as such I am sure the investigating officer is interested in reading them, and has the right to read them, and should accept them for that purpose.

CPT BEALE:  Mr. Segal, your comments have been noted, and again, these documents, however weak or strong they may be, will be admitted for the consideration of Colonel Rock.

MR. SEGAL:  May I ask, sir, then that we be allowed to recall the three investigators in this case, as on cross-examination to now inquire of them, for the certain statements I made to you, that in fact they did make false or deliberately misleading statements to Captain MacDonald in regard to facts that they were allegedly putting to him in this interview; and that secondly, sir, I have other matters I wish now to place on cross-examination to those witnesses and I ask for a ruling on my right to recall those persons under those circumstances.

CPT SOMERS:  The contents of that statement, as to the truth or falsity of what it contains, can be measured by the investigating officer with reference to what he has heard here already.  Now, if the defense wishes to call any of the investigating officers, whether they be Mr. Grebner, Mr. Ivory, Mr. Shaw, or any of the others, as its own witness, the government has no objection to this, and will make them available for that purpose.  However, we do not feel that they should be recalled, except as defense witnesses, to testify to anything that the defense wishes them to testify to.  Now the defense has had an opportunity to cross-examine them already.

CPT BEALE:  Captain Somers, in view of the memorandum, the decision that we've been alluding to, it appears in the interest of fairness, the rules of evidence notwithstanding, that the defense should be given the opportunity to cross-examine each and every one of these witnesses, because these statements were not in evidence at the time that the cross-examination was conducted.  Therefore, the defense will be given the opportunity to recall any and all witnesses and to subject them to cross-examination.

CPT SOMERS:  Well, if that is the ruling, then may I suggest that we do this?  Proceed as we intended to proceed today, and I'll make these people available to the defense to talk to, and decide what they want to do.  They can recall them and use them as though they were the witness of the investigating officer and cross-examine them as opposed to attempting to get them here now, because one of them is not even at Fort Bragg and one of them is engaged in physical examination, so we can't recall them at this point.  They can be made part of the defense's case and still -- the defense will still be permitted to cross-examine them if it wishes.

CPT BEALE:  When will they be available, Captain Somers?

CPT SOMERS:  Well, one of them will be available today, if they wish to talk to him today.  I can make them available to them this week, surely.

MR. SEGAL:  We would like these witnesses made available at once and as soon as possible, and I do not wish to delay to the end of the week.  I want them available, if at all consistent with the position of the investigating officer, promptly so that we can talk -- to them first, and call them as we can work them into the schedule.  And I do not believe I have heard my ears correctly, sir.  I though I sat here only a few minutes ago and heard the government tell this investigation that the opposition to my motion to be allowed to now cross-examine these witnesses, have them called on cross, that we have a right to call them, as they are available; then when we were told that only one of those witnesses was immediately available, and the other two at some vague and indefinite time, and I do believe, sir, that that is not being fair with this investigation and do not consider it being fair -- that counsel for the accused in this matter to sit here and be told that the witnesses are available, when we are here.  I must say this again, sir.  We were told this morning that the government had certain matters that they -- minor matters to clear up.  We should have been noticed that they intended to bring this up.  The memorandum of opinion to which the government refers to is not an explication on the law of the admissibility of various statements at an Article 32 proceedings.  It is a side comment; it is one comment of many.  There is a substantial body of law involved here, and it is the government's obligation to notify us so that we might intelligently present to the investigating officer and his legal advisor not just a memorandum of opinion generated by an action that we, the accused, brought about, but the opinion is written by the Court of Military Appeals and the Federal Distant Courts and the Courts of appeals to the United States, in regard to certain rights the accused has, and I do take certain great umbrage at a situation where this is -- we come here -- it has sprung at everyone.  We are told that well, it can all be corrected, but the witnesses are available, and when we get the right to have the witnesses, we are told vaguely and indefinitely they are available at some time in the future, all but one.  I, sir, am now requesting that all three of these investigators be made available forthwith and that members of the defense, accused's counsel team, will interview them now, in this moment, in this building, and I do not wish any delay in this matter, and I wish the matter recessed at this time until we can find out exactly what moment these men may be seen, sir.

CPT SOMERS:  Well, of course, the defense does not order this hearing around as he's attempting to do.  However, when I say these witnesses are available, I mean they are stationed at Fort Bragg.  They can be made available in a matter of hours with the exception of one who can be made available within a matter of a day or so.  With respect to whether the defense should have been notified of the law which applies, the defense has had open access to the military law library for weeks, months.  I think that's a rather odd comment to make.  The government has presented one, or can present within minutes, one of the three people in question; one can be present within a few hours; another one can be present within a matter of twenty-four to forty-eight hours, and we consider that to be the meaning of the word available; we reiterate that these witnesses are available under those circumstances.  Thank you.

CPT BEALE:  Mr. Segal, I think that probably the best solution to this, until such time as you have an opportunity to talk to each and every one of these please, -- let me correct.  We will not receive for consideration of the Article 32 investigation these particular offered statements until such time as you've had an opportunity to examine them.  These can be reoffered at that time and then you can call these people and have them for the benefit of cross-examination.

MR. SEGAL:  That is satisfactory, sir.

CPT SOMERS:  Mr. Grebner will available within minutes.  I can have all these people here by late tomorrow.

CPT BEALE:  We are not going to delay the proceedings today for this.  Do you have anything else, Captain Somers?

CPT SOMERS:  I would like at this point to take about a five or ten minute recess, please?

COL ROCK:  This hearing will be in recess.

(The hearing recessed at 0950 hours, 10 August 1970.)

(The hearing reopened at 1002 hours, 10 August 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that those parties present at the recess are currently in the hearing room.  Does the government have anything else to present at this time?

CPT SOMERS:  Yes, sir, at this time, Mr. Grebner is present and available to be interviewed.
The question is, does the defense wish to have somebody interview him while we proceed or not?  If not, I wish to release him.

MR. SEGAL:  May we inquire as to whether the government, sir, has anything else to offer this morning, and then we can answer that question more intelligently?

COL ROCK:  Is there anything else the government has?

CPT SOMERS:  It only wishes to make a caveat that when it closes that it be given the opportunity subsequently to offer any late laboratory reports which we expect will come in.  Other than that -- and any possible rebuttal that the government might have, it has nothing further.

COL ROCK:  I would to ask one question at this time.  I signed a letter requesting a psychiatric evaluation be conducted by the government on the accused.  Does the government have any indication of what action has been taken on my request?

CPT SOMERS:  Yes, sir, the request is being considered by Colonel Austin, who is the commander of the hospital here, and Major Tenaglia, who is currently the acting chief of the Psychiatric Section of the hospital, and the request has also been discussed by them with members of the Surgeon General's Office, and they have come to the conclusion that since we have no board certified psychiatrist at Fort Bragg, that the best resolution of this problem, would be to send Captain MacDonald to Washington, D. C. for approximately two days to be interviewed there by a group of psychiatrists who are board certified and completely qualified.  And we suggest, sir that this be done at the close of the defense's case to obviate any delays which might otherwise result.

COL ROCK:  Is this method suitable for the accused?  I am assuming that, as was indicated some time ago, that counsel for the accused intends to complete, so far as you currently know, your side of the evidence this week.  Is this correct?

MR. SEGAL:  Yes, Colonel Rock, that is our desire.

COL ROCK:  And so there should be no difficulty, then, in scheduling the interviews in Washington the first part of next week, perhaps.

MR. SEGAL:  The only thing in regard to this scheduling, sir, we may want to have our own psychiatrist present or available and also counsel may want to be present or available at that time, but subject to those minor -- I think -- scheduling problems, I think we'll be able to perhaps clarify with -- when Dr. Sadoff is here tomorrow afternoon or Wednesday morning.  We are amenable to that process.  I can -- only want to state at this time, however, sir, that if the government is going to offer at a later time a copy of the report prepared by the government psychiatrists in Washington, that we would like to reserve the right to offer further testimony, possibly, in rebuttal to that report.

COL ROCK:  Yes, this is understandable.  Then there being no further points to resolve, the question, then, that counsel for the government has as to whether or not -- do you desire to interview Mr. Grebner, sir, at this time?

MR. SEGAL:  Indulge me one moment, sir, in place.

MR. SEGAL:  Sir, in regard to the availability of Mr. Grebner, it is our desire to interview him this morning in the building.  I would, however, ask that that would have to be deferred for about a half hour during the testimony of the first witness when I want all counsel with the accused present.  However, after the first witness is done, we would like to then see Mr. Grebner here in this building, and have him interviewed at that time.

COL ROCK:  In other words, you wish to present your first witness, and then break.  I see no reason why this can't be done; can you, counsel?

CPT SOMERS:  I can see no reason why.  Give me just a moment to check with Mr. Grebner, so if he has any business that he has to clear up, he can get this done immediately.


MR. SEGAL:  Sir, I have one other matter at this time, and that is may we have the government indicate with more specificity whether the additional report that they are talking about presenting is, in fact, a report dealing with the analysis of certain hairs taken from Captain MacDonald?  The reason why I ask for that at this time, sir, is that we have a witness we wish to offer in regard to that very subject matter, and it seems to me it is very difficult for us to offer him without knowing what the government's evidence is.  It may be totally meaningless to even offer that testimony.  It may not be even necessary to offer that testimony.
Secondly, sir, I think that perhaps the investigating officer may not be able to ask as many of the questions he would like to have answered, not knowing what the government's report is.  It seems to me that if we could get some more firm commitment from the government on that subject matter, one to clarify what it is we are talking about; and, two, if we can get kind of a firm date, we will then try to make a firm arrangement with our witness to be available after that report is available or the same day, if it is in fact.  Therefore, I think all of us would get the benefit of what I would say is conceivably the leading expert in the world in the subject of human hair analysis, and it seems to me that when that kind of expert is available to us, we ought to maximize the opportunity by using his information in the context of the specific facts in this case.

COL ROCK:  Can the government answer the question?

CPT SOMERS:  The reports which the government intends to bring in certainly will include evidence with respect to hair, and perhaps with respect to other matters such as wax or fingerprints.  The precise date I cannot at this time estimate.  As soon as possible, I can say that as soon as these things are in my hands, I will certainly at that point immediately make them available to the defense, and that is about as specific as I can be at this point.  The difficulty has been that the laboratory has been short-handed and has been overworked and they have just been some time getting to -- let me start that sentence over again.  The difficulties along this line and what has caused us to be somewhat unsure of our dates, however, we have had all -- high priority attached to this, and will have it hopefully, this week.

COL ROCK:  Well, I would say it appears to me that certainly it should be here by the end of next week, because I would anticipate that after the interview with the psychiatrist in Washington, I am assuming that we will shortly have their report, that perhaps by Friday of next week I should have had all the evidence presented to me by both sides.

CPT SOMERS:  Yes, sir, it will be available by that point I am sure.  However, it may be available this week.

COL ROCK:  This is apparently all the information that we have at this time, counselor, for planning purposes.

MR. SEGAL:  May I just suggest, instead of waiting until we get the report in, if you would just advise us, Captain Somers, when Fort Gordon says that they have finished typing it and it's in the mail.  That would help us with the scheduling considerably, and again, it would be helpful if they understood that we'd like to have this witness testify this week.

CPT SOMERS:  No problems with that.

COL ROCK:  Then I consider the government's case closed with the caveats reference the reports of the laboratory and, in addition, my own request for the psychiatric examination.

CPT SOMERS:  Sir, at this time the government's case is rested with the caveats that it is permitted to introduce laboratory reports, and with the understanding, first, that the statements of Captain MacDonald, which has already been offered, will be reoffered when the defense has had the opportunity to interview the witnesses; and secondly, any rebuttal evidence that the government may have will be presented at the close of the defense's case.

COL ROCK:  It is so noted.  Is counsel for the accused ready to present your side?

MR. SEGAL:  We are ready, sir.

COL ROCK:  Proceed.

MR. SEGAL:  I call Specialist Four Mica.

(Specialist Fourth Class Kenneth C. Mica was called as a witness by the defense, was reminded of his prior oath, and testified as follows.)

Questions by MR. SEGAL:
Q  Specialist Mica, you are the same witness who was previously called and testified in these proceedings?
A  Yes, sir.
Q  You are still with the same organization?
A  Yes, sir.
Q  You testified that on the early morning hours of 17 February, you received a radio message that caused you to head for 544 Castle Drive.  Am I correct in that regard?
A  Yes, sir.
Q  Now you were in what type of vehicle at that time?
A  It was a jeep.
Q  And was any other person in that jeep besides yourself?
A  Yes, sir.
Q  Who was that person?
A  Specialist Four Morris.
Q  And was Specialist Four Morris the driver of that vehicle?
A  Yes, sir.
Q  Now do you recall exactly the location where your vehicle was at the time you received the radio message that directed you to 544 Castle Drive?
A  We were down on Honeycutt Road; I believe we were off on the side just past the fire station.
Q  Was your vehicle moving or was your vehicle parked at the time that you received your radio message?
A  We were parked at the time.
Q  And when the message came through, what did you and Specialist Four Morris do?
A  Well, we proceeded to go to 544 Castle Drive.
Q  Do you recall the route that you took at that time?
A  Yes, sir, we went down Honeycutt Road, down past North Lucas, a little bit further down we turned up North Dougherty.
Q  After making that last turn, where did that bring you in connection with 544 Castle Drive?
A  That would have brought us to the corner of Castle Drive and North Dougherty.
Q  And that's where you eventually -- Specialist Morris eventually brought the jeep to a halt?
A  Yes, sir, there was a -- some mix-up as to the address.
Q  What address did you go to initially?
A  Well, we went down North Dougherty to begin with.  I believe they gave the address as 544 or 534 North Dougherty.
Q  Now during this time that elapsed and when you first received this radio message until the time that you ultimately arrived at 544 Castle Drive, did you see or observe anything unusual en-route?
A  Yes, sir.

CPT SOMERS:  Object, it calls for a conclusion.

CPT BEALE:  Sustained.  Just ask him what he observed, counselor.

Q  Aside from the existence of the various houses and buildings, did you see any people between the period of time when you received the radio message and when you arrived at 544 Castle Drive?
A  Yes, sir.
Q  Would you tell the investigating officer approximately what location you observed a person?
A  Sir, I observed a person on the corner of Honeycutt Road and North Lucas.
Q  And when did you observe that person in regard to the radio message that you received?
A  We observed this person as we were responding to the message.  It was after we received the message.
Q  And you were on your way to 544 Castle Drive?
A  Yes, sir.
Q  What sex was this person that you observed?
A  Female.
Q  Can you describe to the investigating officer the appearance of that female, including any clothing that she may have had on that you recall?
A  Yes, sir.  She appeared to be wearing a type of a raincoat, dark color, which came to just above her knees.  Also she was wearing a wide-brimmed hat.
Q  Was she a member of the Caucasian race?
A  Yes.
Q  Did you have occasion to note anything about her hair?
A  What I could see -- I really didn't pay that much attention to it at the time -- but it appeared to be approximately shoulder length.
Q  Do you recall what kind of foot gear she may have had on?
A  No, sir, I don't.
Q  What was this female doing?
A  She was just standing on the corner.
Q  Was there anything about her standing on the corner at that time that caused you to be attracted to look at her, or be aware of her being there?

CPT SOMERS:  Object.  It calls for a conclusion.

MR. SEGAL:  This witness has already been identified by the government to be assigned to patrol this area.  It seems to me that any patrolman can testify as to whether it is usual or unusual to see a person at the time of night that is involved in that area.  It doesn't necessarily mean that the investigating officer can give any weight to it, but he ought to know whether the, at least the patrol officer thinks this is something common or uncommon in their experience in that area.

CPT SOMERS:  Then the question should be phrased that way.  It's not the way it was phrased.

CPT BEALE:  The objection is sustained.  I think you can rephrase your question, Mr. Segal, and get the results.

Q  Specialist Mica, have you had occasion to patrol this particular area prior to February 17th, 1970?
A  Yes, sir.
Q  How often have you been through there on patrol?
A  I'd say at least fifteen or twenty times.
Q  And have you had occasion to be in this area on patrol in the early morning hours?
A  Yes, sir.
Q  Do you often observe females standing on the corner of the street at that time of the night in that particular area?

CPT SOMERS:  Object, unless he wants to define often.

MR. SEGAL:  The witness can describe it, sir, if he is allowed to answer the question, you will find out.  The witness has already indicated the basis of his experience, and you will then find out has he ever seen anyone there before.

CPT BEALE:  The objection is overruled.

Q  What is your answer, Mr. Mica?
A  No, sir, it is not usual.
Q  Have you ever seen, in your experience, a young female standing on the corner at approximate time of day while you were patrolling the area?

CPT SOMERS:  Objection to word young.

CPT BEALE:  The objection is overruled, counselor.

A  Yes, sir, I would say, I would say I have.
Q  Would you say you'd seen such a thing happen on more than one or two occasions?
A  No, sir, it's not very common.
Q  By the way, if you have not already done so, would you indicate to us approximately what age you believe the female to be, that you observed standing there?
A  Well, sir, I can't say for certain.  I don't think she was an older lady.
Q  Did she appear to be more than 30 years of age?
A  Less than 30, I would say.
Q  Did she appear to you to be in the vicinity of more than 20 years of age, or 20 years of age?
A  I would say probably older than twenty.
Q  Now when you observed this female, what exactly was she doing?
A  She was standing on the corner.
Q  And what was the weather condition at that time?
A  Well, it had been raining previously.  I believe it had just stopped at this time.
Q  What lights were there available at that location?
A  At that location I believe there aren't any street lights, but there's a light from the traffic signal.  You have the gas station which was behind this female, and the Main Post Commissary which is across the street.
Q  Were there lights on at the gas station at that time?
A  Yes, sir.
Q  Was the traffic light operating at that time?
A  Yes, sir.
Q  Was she standing some proximity to the traffic signal that you can identify for us?
A  Yes, sir, she would have been standing in some light that was cast by the signal.
Q  You indicated that the Post Exchange building was nearby also?
A  Yes, sir.
Q  Were there any lights on there?
A  Yes, sir.
Q  Is there any question in your mind that you had an adequate opportunity to observe the clothing that you've described and the general facial impression that you've described to us?

CPT SOMERS:  Object.  It calls for a conclusion of a rather generous proportion.

CPT BEALE:  Sustained.

Q  Now, Specialist Mica, when you observed this young woman, what, if anything did you do in regard to having made that observation?
A  Well, the only thing I did, sir, was comment to my partner that, more or less a question, you know, what the heck is she doing standing here this time of the morning.
Q  And did Specialist Morris in any way acknowledge your remark or say anything about your remark?
A  I believe he said, I don't know, something to that effect.
Q  Now you ultimately arrived at 544 Castle Drive, and in your prior testimony you've described certain things that you did when you got there, and ultimately you entered through a door in the utility room and you found the body of Mrs. MacDonald and Captain MacDonald in the master bedroom.  Am I correct in that regard?
A  Yes, sir.
Q  And in the course of that procedure you ultimately came to a more or less -- attending Captain MacDonald.  Am I correct in that way?
A  Yes, sir.
Q  And during the course of that time that you were with Captain MacDonald, did you hear him mention or describe the persons whom he said were responsible for the death of his wife and children and the assault upon himself?
A  Yes, sir.
Q  Did he describe a female being among those persons?
A  Yes, sir.
Q  What did he say about the description of that female?

CPT SOMERS:  I object.  This is completely repetitive.

MR. SEGAL:  This is my witness now, sir, and I'll -- I have the right to put his answer in context so that his answer may be properly understood.

CPT BEALE:  Mr. Segal, Colonel Rock already knows the description of this witness offered as a government and also upon cross-examination.  Unless you have something new in the description to offer, it would be rather repetitive.

MR. SEGAL:  Yes, sir.  The description repeated now is a prelude to something which is not before the investigation.

CPT BEALE:  Okay, the objection is overruled.

Q  What is the description?
A  Sir, Captain MacDonald described this woman as having long hair, muddy boots, wearing a floppy hat, and I believe at the time she was wearing a short skirt.
Q  Did you at that time relate or make any connection between the observation you had made while you were driving with Specialist Morris and the description that Captain MacDonald gave to you?

CPT SOMERS:  Object.  It calls for a conclusion.

MR. SEGAL:  No, sir, it calls for the action he took thereafter, and it will only be understood, if he describes his thinking processes.

CPT BEALE:  The objection is overruled, Captain Somers.

A  Yes, sir.

COL ROCK:  Repeat the question again, please, counselor.  I missed the question.

Q  Specialist Mica, when Captain MacDonald described to you the female person who took part, who was part of the group that assaulted him, his wife and children, did you make any connection between his statement, or think there was any connection between his statement and the female you observed on the highway?
A  Yes, sir.
Q  And what, if anything, did you do as the result of fitting those two pieces of information together?
A  Well, sir, I turned around and Lieutenant Paulk and a few other MP's were behind me.  I told Lieutenant Paulk at that time that I'd seen a female standing on the corner, and for them to send a patrol down to see if he could find her.
Q  Did Lieutenant Paulk indicate any response to the statement you made to him about the female you had seen?
A  Well, sir, I didn't pay too much attention to what he did, but he was looking right at me when I told him.  I know he heard it.
Q  Now at the time you observed this female on the highway, was there any reason why you did not stop or make any inquiry to determine who that person was?
A  Yes, sir.
Q  And what was that reason?
A  Well, sir, we were on a call to respond to 544 Castle Drive.
Q  And was your call in any way indicated to you to be of an urgent nature?
A  Yes, sir.
Q  Now is it part of your instructions in regard to the patrol of your area that we are talking about that would have advised you or instructed you to stop any persons at an unusual time of the night such as four am in the morning or 3:45 in the morning?
A  Yes, sir.
Q  What instructions do you have in regard to persons found walking on the highway in the residential area at that time in the morning?
A  With regard to the restricted housing area, the only people that are supposed to be in that area are residents.
Q  Then I gather from your answer that you did not recognize the young woman to be a resident of that area, as far as you know?
A  Well, sir, actually she was -- she was outside the restricted area.  She was on Honeycutt Road.
Q  Now did you have occasion to tell anyone else, besides Lieutenant Paulk and whoever else was in the room when you made that statement about your observation of this woman and the hat that you described to us?
A  Yes, sir.
Q  Now who did you tell about this?
A  I believe I described it to Colonel Kriwanek.
Q  And the -- Colonel Kriwanek was the Provost Marshal General of this Post back in February 1970?
A  He was Provost Marshal.
Q  He was the Provost Marshal, and at that time do you recall the date or the hour on which you had occasion to tell Colonel Kriwanek about that?

CPT SOMERS:  I object.  I recognize that the question of relevancy is relaxed here, but I think this goes well beyond that, to the point of complete irrelevancy.

MR. SEGAL:  There is nothing irrelevant in establishing that a witness who sees a fact, which apparently has a bearing on the description given by Captain MacDonald, that in fact more than just come here and tell about it, but he in fact reported it to other persons at a time it seemed appropriate.

CPT SOMERS:  That goes to the question of the credibility of this witness.  At this time we have not attacked the credibility of this witness.  I don't think he is permitted to go to credibility of this witness in his direct examination.

CPT BEALE:  Captain Somers, your objection is overruled.  You may answer the question, Specialist Mica.

WITNESS:  Would you repeat it?

Q  Yes, can you tell us when you told Colonel Kriwanek about this young woman that you saw?
A  Yes, sir, it was early that morning.  I believe it was somewheres around five a.m.
Q  You are talking about the morning of February 17th?
A  Yes, sir.
Q  And where were you when you --
A  At that time we were in Colonel Kriwanek's office.
Q  And what, if anything, did he say when you mentioned that to him?
A  I don't remember him saying anything, sir.
Q  Did you have occasion to mention the description or the observation of this young woman to any other persons concerned with this investigation and the prosecution of this case?
A  Yes, sir.
Q  To whom did you mention it?
A  I remember mentioning it to an FBI agent that questioned me that night.
Q  You say that night.  You mean the evening of February 17th?
A  Yes, sir.
Q  Now have you had occasion to mention this information that you observed a young woman of the description you have given us to counsel for the government at any time?

CPT SOMERS:  I object.  This is completely irrelevant and improper.

MR. SEGAL:  I make an offer of proof, sir, at this time, that in fact --

CPT BEALE:  Just a second, let's remove the witness if you are going to make an offer of proof.

COL ROCK:  Specialist Mica, you are temporarily excused and you are not to discuss any of your testimony with anyone other than counsel for the government or counsel for the accused.

(The witness departed the hearing room.)

MR. SEGAL:  Sir, at this time I propose to question Specialist Mica about certain conversations that he had with the government, the prosecution in this case, about this information.
You may recall, at the time Specialist Mica was testifying originally on behalf of the government, you ordered that that the defense be given any statements that Specialist Mica may have given to the prosecution or to the investigating personnel, and at that time a single typed written sworn statement was given.  We believe that if Specialist Mica is permitted, through this line of questioning, that he will testify that he was interviewed by counsel for the government, that his statements were written down by them, including, in fact, his statement that he observed this young woman which may appear to resemble a person who was described by Captain MacDonald, and that at the time the investigating officer ordered all statements made available, the government did not make available that particular statement, or in fact, it did not indicate that while it would not make that particular statement available, there was certain other information that this witness had that might be germane to the defense.  But, further, sir, going beyond that, we will show that this witness was specifically told by counsel for the government not to volunteer this information about the observation of the young woman in the case, that we have described here, and I think it is important that the investigating officer have this information before him to rule on further requests by the defense for discovery of government information in view of what we suggest, which could conceivably be found to be a suppression of evidence helpful to the defendant.  It seems to me to be important to establish that Captain MacDonald described certain individuals who were responsible for his own injuries and the death of his children and his wife, and that a person is seen in the vicinity, and we will establish the exact distance very shortly, of his house, and what I consider to be, I think what considers to be, an unusual time of the morning under very unusual weather circumstances, and that a person appears to fit the description of one of those persons, that that's a germane and important fact that should certainly be disclosed because the government, in its case, sir, asked all of these military policemen it called, whether on their patrol they saw anyone, you know, in that particular vicinity, and that in that regard this witness had been instructed not to volunteer seeing just outside of the restricted area this young woman, and yet this area was no more than six or seven blocks from the MacDonald household.  It seems to me the investigating officer has to have that information so he can properly rule on the defense allegation that not all the germane information to truth finding, let alone to the accused case has been presented to us, and for that reason I think we are entitled to be able to ask this line of questioning, which I believe will elicit the answers I've already indicated to you this morning.

CPT SOMERS:  Even were the defense to elicit this information, I think that it would not show what it wishes to show, and the government can make offers of proof at this point that it knows that an individual was discovered on the corner, that the defense is speaking about by Sergeant Duffy who testified that he found an individual on that corner, I think, in this hearing.  For that reason it was not of any particular significance.  Any statements that the defense may have reference to at this point are the personal product of attorneys which are not subject to the production in this hearing.  There are no sworn statements by this witness not made available.  The government at this point will freely admit that when asked for advice on testimony by any of the government's witnesses, the government informed those witnesses that the best technique was not to volunteer any information, but to be questioned on any subject which the defense chose to question them on, and further that the government instructed these witnesses to answer all questions truthfully and to the best of their knowledge.  We submit again that the line of questioning that the defense is attempting to invoke is irrelevant and improper.

MR. SEGAL:  I wish to respond to one very important area, sir, and that is, I would agree that if the government was asked, and I believe the words of Captain Somers were, that he would freely admit that when asked for advice, my offer of proof includes, sir, the statement to you that I believe this witness will testify that he never asked or intimated or suggested to counsel for the government that he needed any advice about testimony.  But to the contrary, my offer of proof includes the allegation that Specialist Mica, when he gave this specific fact to counsel for the government, was told by them not to, was asked first of all whether he had given it to the defense at that time, and was told thereafter not to volunteer it, and that he did not ask for any advice; and I suggest to you, sir, again that it is most germane to other rulings as what documentation might be available to this defense.  Secondly, it is germane to the decision by the investigating officer as to whether or not the government has attempted in fact to present all the facts it knows, or only selectively present facts and omitting what I think again is a crucial fact.  There is another witness, sir, who will be -- if we cannot call that witness, we will establish that the government knows of a second witness whom it has allowed to leave the post, who testified that it saw -- she saw a young woman running from the vicinity of the MacDonald house and it will be in context with Specialist Mica's information. And with that kind of a picture, sir, it seems to me imperative that we not rule out of the record of this case how the investigators and the prosecution have selectively tried to construct out of thin air the accusation against Captain MacDonald, and in doing so, in the face of substantial evidence, that they did not use it, to at least say to the defense, you ought to be aware that there are certain witnesses, because this obviously fits exactly what you've said of the way the case took place and the way the crime could have happened.  It seems to me this goes to a very fundamental constitutional issue, sir, where the government may, by claiming it was only giving advice when it was asked to, may reverse its role and tell a witness he should not give information when it knows under decisions of the Supreme Court of the United States which are binding in this tribunal, as any other military tribunal, that no prosecutor may suppress evidence knowing that that evidence may be helpful to the defense.  And it seems to me that may, in fact, be one of the issues that you are confronted with in this investigation.

CPT SOMERS:  Sir, the government has already explained that it has not suppressed anything, and explained that explanation in detail.  The government is under no obligation by the case of Brady versus Maryland, out of the Supreme Court, to provide to trial any information which may be helpful to the defense.  We've already explained too, that the government knew that an individual was found on this corner, that in fact the individual proved to be a man, not a woman, and that for that reason, the government does not feel that is particularly germane, however, the evidence came in through Duffy that he found such an individual.  Again, we say that the line of questioning which the defense is now following is incompetent, irrelevant, and we request that it not be permitted to continue.

CPT BEALE:  Captain Somers, your objection has been noted.  Because this line of questioning does not elicit any new facts, doesn't appear to be going towards eliciting new facts, then unless it does so at a later time, unless it shows that it is going to elicit some facts that are germane to the question we have before us, as to whether or not there is enough evidence to warrant a trial for Captain MacDonald, this line of questioning will be terminated, and you can solicit your facts that you want from this witness, but as far as what Captain Somers may or may not have been told, Colonel Rock is not concerned with that.  

MR. SEGAL:  May I just observe, sir, that I couldn't agree with you more as to whether or not there are facts that justify a recommendation that Captain MacDonald be -- stand trial before a courtmartial, but I don't know how the investigating officer can ever arrive at that conclusion if he is not permitted to fully understand the nature in which this investigation took place; that this is not an ordinary investigation or ordinary case.  It is some really extraordinary thing apparently happened in the early hours of the 17th of February, and one of them continued to happen thereafter and that the -- that is not all of the information brought to the persons who should know it, and it seems to me that this investigating officer should know that there was not only this young blond lady, or young lady with long hair seen by Specialist Mica, but that there are other witnesses who corroborated this, who have never been made available or told the investigating officer they exist, and there can be no proper decision made as to whether there are enough facts unless you know whether or not the government is presenting the facts that are important to it.  I do not expect the government to make out the accused's case for him, but I do say, sir, that in all candidness this is the kind of fact that looms much larger, much more extraordinary larger than even, say, the missing wallet in the MacDonald house would seem was an unusual fact.  The presence in this area at this time of someone who was revealed, and who the government, may I say, sir, made an active effort to suppress that information must be known on the record of this case.

CPT BEALE:  On your direct examination, Mr. Segal, now you can bring any and all facts that you care to about what this witness may or may not have known.

MR. SEGAL:  Very well, sir.

CPT BEALE:  However, as far as his conduct was with Captain Somers, it is not germane to the issue at hand.  So, if you would, bring Specialist Mica back in.

MR. SEGAL:  Do I understand you, sir that we are not permitted to ask Specialist Mica any other questions about what he was told, as to what he should say to the defense about the existence of this young woman?

CPT BEALE:  That is correct.

(Specialist Mica returned, saluted the IO and resumed his seat.)

COL ROCK:  Specialist Mica, you are again reminded that you are under oath.  Proceed, counselor.

Questions by MR. SEGAL:
Q  Specialist Mica, could you tell us please what distance from 544 Castle Drive the location was that you observed the young woman you described?
A  Yes, sir, it is approximately four or five blocks.
Q  Have you ever seen, since February 17th, 1970, a picture of the -- that resembles the young woman whom you saw that morning?
A  Yes, sir.

MR. SEGAL:  At this time I ask to have marked as an accused's exhibit --

(A drawing was shown to counsel for the government.)

CPT SOMERS:  Sir, before this picture is shown to the witness, which I gather is the intention, I think the defense should make some offer of proof as to what it is and why it is relevant.

COL ROCK:  Yes, I was going to request that.

MR. SEGAL:  Yes, sir, of course.  First of all, we would also request that this be done out of the hearing of this witness.

COL ROCK:  You are excused again, Specialist Mica.  You are reminded again not to discuss your testimony with anyone other than counsel for the government or counsel for the accused.

(The witness departed the hearing room.)

MR. SEGAL:  This witness has been asked, sir, by me as to whether he has ever seen a picture of a person who resembled the young woman he saw on the corner of Honeycutt Drive on the morning of 17 February, and I am now showing him a photograph, that establishes first of all, sir --

COL ROCK:  Photograph?

MR. SEGAL:  A picture, rather.  We are now showing a picture of a face of a young woman, which he, I believe, will identify as being a picture he has seen before, and is a likeness -- substantial regard to his ability to observe -- to the young woman he saw.  So that in that sense the picture speaks for itself in that this witness says it resembles a person.  It is obviously not a photograph of a person, but is a drawing and he will identify it therefore as being the likeness that he recalls of the person he saw.  So in that regard the picture itself becomes of evidential value, because this witness can identify -- he could pick up a magazine and say this picture resembles the person, and it would speak for itself because it gives evidentiary report.  What this represents is a drawing prepared by a John Princkle, P-r-i-n-c-k-l-e, who is a former police artist with the Crime Laboratory with the city of Philadelphia Police Department, employed by that agency for a number of years in the capacity of preparing drawings of suspects, drawings of persons wanted by the police in connection with the investigations, and that he recently left the Philadelphia Police Department to take employment with the General Electric Corporation as an artist, and at the request of the accused, prepared this photograph based upon interviews with Captain MacDonald using a standard technique for preparing a photograph by the composite artist techniques used generally by criminal investigators.  Like I said, this is not offered to prove that this is in fact, the appearance of the person who killed Mrs. MacDonald and the children and was involved there, but is offered to prove that this witness saw a person who looked like this.  Later on, when Captain MacDonald is called, as we expect, sir, he will identify further the relationship of this photograph and testify as to how the photograph -- the drawing came to be made and was made in his presence, using him and the technique, and if there is anything further we can, of course, supply the affidavit of Mr. Princkle, although, again, it is standard investigative technique, which I would think the government is aware of how it took place and how this kind of work is done.

COL ROCK:  Would you please recall the witness?

CPT BEALE:  Let the record reflect that the artist's sketch, marked A-31 will be admitted for use by the witness.

(Specialist Mica returned and was reminded of his oath.)

COL ROCK:  Accused Exhibit A-31, drawing of young female.

MR. SEGAL:  Sir, at this time I request permission at a later time to substitute a photograph of this original drawing so that we may preserve this because it is somewhat fragile, and can be smeared rather easily.

COL ROCK:  Permission granted.

Q  Now I show you a drawing which has been identified as A-31 and ask you, Specialist Mica, whether this drawing resembles the young woman that you saw on the corner of Honeycutt Drive on --

CPT SOMERS:  Object as tremendously leading.

MR. SEGAL:  All right, I withdraw the question.

Q  Does that drawing represent anything that you have ever seen before in a human being?
A  Yes, sir.
Q  What does it represent to you?
A  It represents a -- what appears to be a female Caucasian with long hair, wide-brimmed floppy hat.
Q  Does it resemble any person that you believe you have seen?
A  It could, sir.
Q  Who do you believe it could represent?
A  Possibly the girl that I saw on the corner that night.

MR. SEGAL:  You may cross-examine.

Questions by CPT SOMERS:
Q  Would you describe for us, please, just exactly what this female looked like you saw on the corner of Honeycutt and Lucas?
A  Yes, sir.  From what I remember she had on a wide-brimmed hat, what appeared to be a raincoat, trench coat type, came just above her -- her knees, and she appeared to have long hair.
Q  What color was her hair?
A  I don't remember, sir.
Q  Describe the lighting conditions, please, for us of the spot where she was standing?
A  Yes, sir.  I don't believe there was a street light there.  The traffic signal faces the direction she was standing.
Q  You say -- go ahead.
A  There was a gas station which would have been to her rear and the Commissary Exchange which was across the street, which was lighted.
Q  Was there anything that would have been between her and that gas station?
A  Yes, sir.
Q  Trees or anything of that nature?
A  Yes, sir, trees.
Q  And you described this woman as wearing a wide-brimmed hat.  Is that correct?
A  Yes, sir.
Q  Was that wide-brimmed throwing a shadow on her face?
A  I don't know, sir.
Q  Describe her facial details for us, please.
A  I couldn't describe her face.
Q  What color were her eyes?
A  I don't know, sir.
Q  You described this woman as being apparently between the age of twenty and thirty.  Is that correct?
A  Yes, sir.
Q  What specifically leads you to believe that she was between twenty and thirty?
A  Well, sir, the majority -- the majority of women I've seen over thirty, thirty-five, seem to get a little bit over weight, and a little bit out of shape.  She seemed to be pretty good.
Q  You say she was wearing a raincoat?
A  I believe it was a raincoat, sir.
Q  Some kind of a coat?
A  Yes, sir.
Q  And how much of her figure was visible with this coat on?
A  Well, sir, just -- actually the only part that was visible under the coat was right above her knees on down.
Q  You don't really know what kind of shape this woman was in, do you?
A  Well, the only way I could judge, you know, is comparison to other people I've seen wearing raincoats.  She had pretty nice legs.
Q  From her knees down?
A  Yes.
Q  And how long did you observe this person?
A  I'd say only three or four seconds.
Q  So I gather from what you are saying that you could see her legs from the knees down and they looked pretty good to you?
A  Yes, sir.
Q  I gather then that she wasn't wearing boots?
A  I don't remember, sir.
Q  Have you ever seen a raincoat that has a hood which drops down behind it?
A  Yes, sir.
Q  Can you be sure that what you are describing as long hair could not have been a hood dropping down behind this hat?
A  It could possibly be.
Q  How far from the gas station was this girl standing?
A  Well, sir, she was right off the sidewalk, standing on the grass at the corner of Honeycutt and Lucas.  I don't know exactly how far from the gas station that is.
Q  And which of the four corners was she standing on?
A  She was standing on the corner by the gas station, same side as the gas station.
Q  And who else saw this girl?
A  I don't know, sir.
Q  Did Morris?
A  I don't know if he saw her.  I don't believe he did.
Q  What was she doing there?
A  She was just standing there.
Q  She wasn't running?
A  No, sir.
Q  Who was with her?
A  No one I could see.
Q  There weren't two Caucasian males and a male Negro with her?
A  No, sir.
Q  And this area she was standing in, did you say that that is not in Corregidor Housing Area?
A  Well, sir, the way we define our patrol areas, that's actually the -- Anzio Acres.
Q  But it is not Corregidor Courts?
A  No, sir.
Q  How much light does this signal light that you are describing throw?  Does it light up the whole area?
A  No, sir, it doesn't light up the whole area.
Q  Is it one of the normal signals with red, yellow and green light?
A  Yes, sir.
Q  And do those lights have shields around them?
A  Yes, sir.
Q  The commissary that you refer to in this area, this is in the Mallonee Shopping Center, is it?
A  Yes, sir.
Q  And that is an annex to the Main Post Commissary, is it not?
A  Yes, sir.
Q  Do you remember telling a Mr. Weiss of the Provost Marshal Investigating Office about this girl?
A  No, sir.
Q  If I was to tell you that Mr. Weiss says that you did tell him about this on the 17th of February, would you say that was impossible?

MR. SEGAL:  I would object, sir, if this is a suggestion that there is supposedly a statement that this witness made to some other persons such as Mr. Weiss, and I suggest that we -- that in accord with your prior ruling -- that he be shown either this statement that Mr. Weiss said that Specialist Mica made, or the statement of Mr. Weiss in which it purports to state what Mr. Mica said in his presence, and in either way, it would be more helpful to have the witness see the statement so he could answer more intelligently, because he has already said to his recollection he's never made any statement to Mr. Weiss.

CPT SOMERS:  There is no statement in writing.  I'm asking him if he is saying that it is impossible that he made such a statement to Mr. Weiss.

CPT BEALE:  Mr. Segal, your objection is overruled.

A  No, sir, I never made a direct statement to Mr. Weiss.
Q  Is it possible that Mr. Weiss was present?
A  No, sir.
Q  That's not impossible?
A  No, sir.
Q  If I were to tell you that Mr. Weiss is of the opinion that at the time you made the statement concerning this girl that you said she was not wearing a hat, would you say that was impossible?

MR. SEGAL:  That's objected to.

CPT BEALE:  Counselor, now the witness has answered in the negative, that he has not or did not make such a statement to this witness.  Now, if you want to elicit whatever information that came out of that result of the conversation with this witness -- that he said to Mr. Weiss -- you will be required to call Mr. Weiss.

CPT SOMERS:  Well, I think the witness has said that it is possible that Mr. Weiss heard the statement he made.

MR. SEGAL:  The man on the moon may have heard it, but there is no evidence that Mr. Weiss heard it.

CPT BEALE:  The objection is sustained.

Q  Now, Specialist Mica, what time did you estimate you saw this woman?
A  Sir.  This was while we were en-route to answer the call at 544 Castle Drive.  I would say -- somewhere in the area of 03:45 hours -- or 0350 hours.
Q  And about what time was it when you told Lieutenant Paulk about this?
A  I'd say it was a good ten minutes after I'd been inside the house, after we'd arrived at the scene.
Q  Sometime after four o'clock?
A  Yes, sir, around four o'clock.
Q  I show you exhibit 31 for the accused, which you have testified concerning.  You said it possibly could be the woman that you saw on the corner.  Is that correct?
A  Yes, sir.
Q  Would you tell us what facial characteristics this picture shows that are similar to the ones that you saw on this corner?

MR. SEGAL:  That's objected to as an improper question.  The witness did not say he picked out a single characteristic.  One way of identifying is by finding a characteristic, and my understanding of his testimony, is that he saw a face and this face resembled that face, not that a single facet stood out.  He never suggested it.  To permit any line of examination dealing with individual facets is to take this witness' testimony and twist it.

CPT BEALE:  Your objection is overruled, Mr. Segal.

Q  What specific characteristics, facial characteristics, of the girl in A-31 are like those of the woman on the corner?
A  Sir, there are no facial characteristics that I can identify.
Q  Then you are identifying what?  A hat and some long hair?
A  Yes, sir.

CPT SOMERS:  I see.  No further questions.

Questions by MR. SEGAL:
Q  Specialist Mica, in regard to the drawing that you have been shown, does the face, taking the total entity of all the features and all the rest of it, resemble the face that you saw on the morning of 17 February at Honeycutt Drive?
A  It could possibly be, sir.
Q  And that is -- you say it could possibly be -- because the features seem to be generally the same type?

CPT SOMERS:  I object.

MR. SEGAL:  May I finish my question, sir?

CPT BEALE:  Give him the courtesy of letting him ask his entire question.

CPT SOMERS:  I'm sorry.  I thought he was finished.
Q  Is it because the features appear to resemble the placement and shape of the same features you saw on the woman at Honeycutt Drive on the 17th of February?  I am finished.

CPT SOMERS:  Now, I do object.

MR. SEGAL:  It has to be at this point able to direct the witness' attention to the specific facts involved here.  Now either he does or doesn't have a basis.  While he is here he can be questioned about it, whether it resembled it or doesn't.  It is acceptable to many answers.  It is not a leading question, and it calls for a person to give an opinion about whether somebody looks like somebody else, and there is no other way to give an opinion about identification.
You have to say what you think about it and what you know.  Only the factor finder will say what he did know.

CPT SOMERS:  The defense counsel has asked a lengthy question, giving an explanation of resemblance, to which only the answer, yes, is required and then the entire answer given by the witness is assumed in the defense counsel's question.

CPT BEALE:  The objection is sustained.  Rephrase your question, Mr. Segal.

COL ROCK:  Please try to make them as simple as possible for my edification.

MR. SEGAL:  Yes, sir.

Q  Does this picture resemble the face of the young woman on Honeycutt Drive?

CPT SOMERS:  Objection.  It's already been answered twice, three times.

MR. SEGAL:  The cross-examination purports to shake the identification only of the hat and the hair.  I'm asking now about the face.  I would like the right to rehabilitate my own witness, if there is, in fact, an impeachment.

CPT BEALE:  The objection is sustained.

Q  Specialist Mica, did you tell Colonel Kriwanek on the morning of February 17th, 1970, the same description you have given us here this morning in court?
A  Yes, sir, I believe I did.
Q  Did you tell the FBI agent when he interviewed you subsequently the same description you have given here in court?
A  I believe I did, sir.
Q  Did you tell Captain Somers and Captain Thompson the same description as you have given here in court?

CPT BEALE:  Now Mr. Segal, that's already been ruled upon.

MR. SEGAL:  There's a suggestion here that's been made that Mr. Weiss has heard something contrary.  I wish to suggest that this witness has told a number of persons on different occasions the description the same as today and particularly, counsel for the government are in a position to tell us whether in fact the witness has not done that for their own personal knowledge in their own personal experience with this witness.

CPT BEALE:  The ruling has been made and he will not be required to answer that question.

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

CPT BEALE:  Re-cross?

Questions by CPT SOMERS:
Q  Then in the descriptions you have given to other people -- isn't it true that you never once have gone over the facial features of this woman?
A  Yes.
Q  Because you didn't know those facial features, did you?
A  No, sir.

CPT SOMERS:  No further questions.

COL ROCK:  I have several questions of the witness.  I would like to at this time have a diagram entered into evidence of this location, because I don't think the record will clearly reflect it.  Does counsel for the accused have such a diagram?

MR. SEGAL:  Yes, sir, I believe I have an unmarked one here.

COL ROCK:  The one you have there is not sufficient for my use.  What I am proposing is that we have a little conference here at the table with the witness drawing certain locations, and identifying them or perhaps even better if I draw it as I understand it, and having Specialist Mica correct me.

(The witness and all counsel approached the investigating officer's table.)

COL ROCK:  Specialist Mica, I present to you herewith a hand-drawn diagram depicting the location which you have described to me as being at the corner of Honeycutt and Lucas.  On this diagram is indicated the approximate position of the Commissary, approximate position of the filling station, and the approximate location of Corregidor Courts housing area.  On this diagram there is an X in black, marking the location of the stop light; an X in red, marking the location of the young woman, as you saw her; a red arrow indicating the direction the young woman was facing when you saw her; and a blue outline indicating some bushes behind the young woman.  Does this diagram accurately reflect the location as you remember it that evening?


COL ROCK:  And have you signed and dated this exhibit?

WITNESS:  Yes, sir.

COL ROCK:  Accused Exhibit 32, diagram of location of young woman.
At the time that you saw this young lady were you approaching along Honeycutt and heading towards 544 Castle Drive?

WITNESS:  Yes, sir.

COL ROCK:  At the time you observed the young lady, did you have to stop your vehicle?

WITNESS:  Yes, sir, my partner stopped.  We had a red traffic light at that time.

COL ROCK:  Approximately how long were you at the stop light?

WITNESS:  I'd say four or five seconds.

COL ROCK:  What type of vehicle were you in?

WITNESS:  Jeep, sir.

COL ROCK:  Did the jeep have side curtains?

WITNESS:  Yes, sir.

COL ROCK:  And are those side curtains covered with some type of plastic covering?

WITNESS:  Yes, sir.

COL ROCK:  Were there any rain drops on the vehicle at that time?

WITNESS:  Well, sir, I don't remember exactly.  I know it had been raining.  I don't know if there were drops on the sides or not.

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

MR. SEGAL:  Yes, sir.  May I have A-32?  I want to ask the witness, if I may Colonel Rock, to mark on the drawing the location of his jeep at the time it was stopped in reference to the position of the young woman and we will use a red marking pen, sir.

Questions by MR. SEGAL:
Q  May I ask you to indicate, Specialist Mica, where in reference to the X mark with an arrow that we've already placed on this drawing, which represents the young lady and the direction she was facing, the jeep was when it stopped for the red light?  If you will make a rectangular block there indicating the jeep.  And would you make an arrow at the head of that jeep indicating which direction it was going?

(Witness complied.)

MR. SEGAL:  Am I noting at the bottom, sir, in similar colored ink, a rectangle indicating the military police jeep.  And you were sitting on which side?  The left side or the right side?
A  The right side, sir.
Q  So that you were nearest to the curb?
A  Yes, sir.
Q  Which meant you were nearest to this young lady?
A  Yes, sir.
Q  About how many feet would you say it was from where you were to where this young lady was standing?
A  I'd say approximately twelve to fifteen feet.
Q  Is there any doubt in your mind that you saw this young lady you have described standing there at that time on February 17th, 1970?
A  No, sir.

MR. SEGAL:  That's all.

COL ROCK:  Re-cross?

Questions by CPT SOMERS:
Q  Specialist Mica, when you stopped at this stop light, were you running with your lights and siren on?
A  We had our red light on, sir.
Q  Why did you stop?
A  Well, sir, we wanted to make sure there was no traffic coming through the intersection.
Q  I see.  So you stopped just long enough to make sure there were no traffic?
A  Yes, sir.
Q  And it was not the light that stopped you?  You did not stay there for the duration of the red light?
A  No, sir.

CPT SOMERS:  No further questions.

MR. SEGAL:  Thank you.  Sir, we ask that this witness be held available.  I understand there is some difficulty in regard to -- his unit may be on some order to go to another post, but we have reason to believe we may need Specialist Mica later on this week again in regard to other matters.

CPT SOMERS:  I don't know whether I can accomplish that.  I'll try, sir.  I would note that this witness does not appear on any of the witness list that that the defense has given us.
If they know at this time of any other witnesses that they are going to call that they have not listed, we'd appreciate being apprised of it.

MR. SEGAL:  Well, sir, that's quite true, except it was a government witness, so that they have apparently had full opportunity to interview him for months before the case, so there's no surprise in anything that we have said.  We will, of course, try to advise the government promptly of any witness we intend to call, even if they have seen them before.

COL ROCK:  Will counsel for the government please check to determine if there is any unusual problems in making the witness available later in the week?  I am sure that his presence will not be required after Friday.

CPT SOMERS:  I can check.  I can say now, sir, that I know that there is a problem, because his unit is among those which are to be posted along the line of this nerve gas shipment, but I will do my best to have him held.

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

WITNESS:  Yes, sir.

COL ROCK:  You are temporarily excused.

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

COL ROCK:  In view of the hour, does counsel for the accused intend to proceed at this time, or --

MR. SEGAL:  Sir, if it is not inconvenient to the investigating officer, we have a witness by telephone we have made arrangements for, and I think that her testimony will be relatively short, but I would -- at least if we start it, if there are any questions, she would remain available, other wise she has other personal matters.

COL ROCK:  How long will this take to get together?

MR. SEGAL:  Just two minutes, sir.  We can take a recess in place.

COL ROCK:  All right, we will recess in place.

(The hearing recessed at 1120 hours, 10 August 1970.)
Webmaster note: 
The original stenographer's misspelling of Wice was corrected to Weiss in this transcript.