Article 32 Hearing
September 8, 1970
(The hearing reconvened at 0905 hours, 8 September 1970.)
COL ROCK: This hearing will come to order. Let the record reflect that counsel for the government is present, and counsel for the accused, with the exception of Mr. Eisman, who is absent this morning.
I would like to initially distribute to the opposing counsel the following records of testimony transcripts of the following people:
(1) CID Investigator Robert B. Shaw, witness for the government.
(2) CID Investigator Franz Grebner, witness for the government.
(3) CID Investigator Bennie Hawkins, witness for the government.
(4) MP Kenneth Mica, witness for the defense.
(5) Mrs. Winnie Casper, witness for the defense.
(6) Mrs. Bobbie Evans, witness for the defense.
(7) Doctor Manson, witness for the defense.
(8) Doctor McGann, witness for the defense.
(9) Captain Thoesen, witness for the defense.
(10) First Lieutenant Thoesen, witness for the defense.
(11) Mrs. Carol Butner, witness for the defense.
(12) Mrs. Jean Morrell, witness for the defense.
(13) Captain Frank Moore, witness for the defense.
(14) Doctor Herter, witness for the defense.
(15) Captain James Williams, witness for the defense.
(16) Master Sergeant Violetti, witness for the defense.
(17) Professor Wolfgang, witness for the defense.
(18) Elizabeth Ann Krystia, witness for the defense.
(19) Miss Marjorie Murdock, witness for the defense.
(20) Susan Chester, witness for the defense.
(21) John W. Chester, witness for the defense.
(22) Mrs. Jan Snyder, witness for the investigating officer.
(23) William Posey, witness for the defense.
(24) Mr. Robert Stern, witness for the defense.
(25) Mr. Alfred Kassab, witness for the defense.
(26) Mr. John Sutton, witness for the defense.
(27) Mrs. Barbara Daw, witness for the defense.
(28) Warrant Officer Roy Daw, witness for the defense.
(29) Testimony of the accused, Captain Jeffrey R. MacDonald.
Next, I would like to inquire as to the services of Lieutenant Malley, one of the counsels for the accused. It is my understanding that he has submitted a request to be excused from further services of the accused at this time.
LT MALLEY: Yes, sir. As you know, I have submitted such a request to General Flanagan, which has been approved. I believe I furnished you also with a copy of that, and if appropriate, I ask you to include in the record as you see fit; with the consent of Captain MacDonald, Captain Douthat and Mr. Segal I have gotten orders, and I will give you a copy of my orders.
COL ROCK: Accused Exhibit 44, Special orders Number 212, Headquarters, US Army John F. Kennedy Center for Military Assistance, dated 4 September 1970, releasing Lieutenant Malley from attachment.
Captain MacDonald, I would like to ask you at this time, sir, does this meet with your approval?
CPT MacDONALD: Yes, sir, it does.
COL ROCK: Lieutenant Malley, you are herewith excused.
LT MALLEY: Thank you, sir. Before I leave, may I take this opportunity to thank you and Captain Beale for the courtesies that you have shown me and my fellow counsel and Captain MacDonald, and I ask you if I may leave the room at this time?
COL ROCK: You may, sir, and bon voyage.
(Lieutenant Malley departed the hearing room.)
COL ROCK: Next, at this time I would like to read a statement concerning my visit to 544 Castle Drive. Let the record reflect that during our recess, on 19 August 1970 between the hours of 2100 and 2200 Captain Beale and I were escorted by Mr. Grebner, Chief, CID Fort Bragg, to revisit 544 Castle Drive. Captain Beale made all arrangements with Mr. Grebner. I specifically instructed him to inform Mr. Grebner that at no time would I discuss the facts of the case with Mr. Grebner or ask any questions. These instructions were obeyed completely during my visit and Mr. Grebner's sole function was to secure the premises. During my visit I made certain observations as a result of entering all rooms. I now wish to inform counsel for both sides of the relevant observations as follows:
(1) In the utility room I generally noted the titles of the many pocket type books located therein.
(2) I noted the presence of feathers in several rooms.
(3) I read the messages on the several Valentine cards in the dining room.
(4) I measured and noted that the height of the ceiling in the living room was the same as the height of the master bedroom ceiling.
(5) I observed that were no nicks on either the living room ceiling or the ceiling in Kimberly's room.
(6) I saw a few pair of rubber surgical gloves under the kitchen sink, apparently in their original packaging.
(7) I simulated the lighting conditions as per the accused's testimony. From a prone position on the couch, the length of which I noted, I was able to discern the facial features of Captain Beale at the end of the couch. The visibility increased considerably when I substituted as my source of light the lamp on the small dining room buffet.
(8) And finally, I kicked over the coffee table. It struck the side of the rocking chair and came to rest on its edge.
Upon my departure from the premises, they were again secured by Mr. Grebner.
I would like to ask at this time, are there any further government exhibits to be entered at this time?
CPT SOMERS: Yes, sir. The government offers a follow-up laboratory report concerning hair, a copy of which has been given to the defense.
COL ROCK: Do you have the original of this for entry into the record?
CPT SOMERS: I do not, sir. That is as close as I could come to the original. All other copies are machine copies of that one.
COL ROCK: And the original copy had no heading or anything on it? That is, an official heading indicating the headquarters and so forth?
CPT SOMERS: No, sir, this is all we have.
COL ROCK: Who would have the original?
CPT SOMERS: I'm not sure who has the original, sir. Captain Thompson informs me, sir, that the original -- or was as of Friday of last week -- in the CID laboratory to be sent here. However, this is a carbon copy of the original.
COL ROCK: Does counsel for the accused have any objections to this being entered as an official document, although it is not the original and apparently is a carbon?
MR. SEGAL: Sir, I have no objection to the use of the copy. I do have some other comments that I will withhold until you are ready.
COL ROCK: All right. Government Exhibit 107, CID Lab Report on hair samples. Government Exhibit 108, addendum to CID Lab Report on hair samples. Does the government have anything further?
CPT SOMERS: Yes, sir, the government has witnesses at this time. Are you ready for those?
COL ROCK: Yes, I am. Proceed.
MR. SEGAL: May I just say at this point in regard to the two exhibits that have been received this morning there are two points, if I may, sir. First of all, I think that in view of the fact that the, certainly the second report makes reference to some intervening communication, that the instructions to the laboratory which must have been contained in a transmittal letter that lead up to the original report of 29 July should be made part of the record, as well as the intervening instruction which resulted in the addendum to the lab report. It seems to me we have an incomplete record. We do not have independently the questions or the statement of fact as to the information that was posited to the laboratory in this or these communications.
I would point out, in fact, that the laboratory makes reference to -- in paragraph 2b of its report of 2 September -- to some effort to make certain positive findings and I think in the interest of the record and to all of us, those communications should be supplied to the investigating officer and marked as part of this record. I have an additional comment but I would appreciate if we could resolve that first request, sir.
CPT SOMERS: Sir, I think the addendum speaks for itself. It explains just exactly what it's all about.
COL ROCK: Does the government object to presenting any letters in conjunction with this? Does the government feel that this will be helpful in any fashion to the investigating officer?
CPT SOMERS: Sir, I can foresee no reason why it would be helpful, and had I thought that it would be I would have included it. For that reason I object.
CPT BEALE: Your request is denied, Mr. Segal.
MR. SEGAL: Secondly, sir, I wish to state to the investigating officer my profoundest concern over the existence of the report dated 29 July. During our proceedings commencing 7 August and for that entire week, there were repeated discussions on the record of this hearing in regard to the location, the whereabouts and the finality of the report of the laboratory regarding -- with regard to this hair. My recollection in this regard is that we were repeatedly advised that Fort Gordon apparently had not done this report yet, and had not completed the report, but it was on the way. In my judgment, sir, there has been substantial error committed here, a substantial misleading at least of counsel for the accused, if not the investigating officer, as to the completion of the report. It seems to me that whether the government requested an addendum or not, and they are certainly entitled to request whatever they want, that we were entitled to be told what resembles to be the truth, so if there was in fact a report under date of 29 July, which as far as I can ascertain had to have been here at Fort Bragg at the time this inquiry was proceeding in the week of August 7th, and the time that repeated request were made by myself. At the time I recall the investigating officer making inquiries of the government's counsel as to when and where are these reports, and I think it is appropriate, sir, that we have some explanation as to why this, what I would call at least -- information was given to us. It seems to me this could have been provided considerably before now. It would have been a matter which we should have had access to before now, and I might say, sir, that we never received a copy of this until, in fact, a telegram was sent by myself to the investigating officer which resulted in the prompt action in it being delivered to Lieutenant Malley. I do think this matter should be clarified at this time.
CPT SOMERS: Well, in the first place, the defense counsel's indulging in the thing that he has said before, that he abhors the attack on the principles, scruples and methods of the government's counsel. However, passing that by, the government, as stated in these hearings, during the period that the defense makes reference to, did not know where that report was and repeating the information that it was not completed, and that's all we can say with respect to that. I can say, however, that the defense received a copy of it not as the result of any telegram, but as soon as it was available to me; on the day, in fact, within the hour of the time that I received that report, I made it available to the defense. This is the only reply I can make, sir.
COL ROCK: Mr. Segal, the government was replying to your request. I don't know if you heard it or not, sir.
MR. SEGAL: I heard it, sir. I accept Captain Somers' explanation that he did not have it, but I do say, sir, that the law of the United States, as well as military law, that when dealing with knowledge on one or the other, it is imputed to all parties the knowledge of other parties associated with them, and it seems to me, sir, that there is a grave matter here, that if a letter addressed to the Detachment Commander of the CID, who was working obviously in this matter at some direction of counsel for the government, was not made known to the detachment commander, this, I think, is a matter -- it troubles me, sir, that it could happen in this kind of proceedings, that this could be held back, when the specific request was being made. I have a recollection, sir, that inquiry had been made of the CID detachment about the status and that apparently no one over there had any knowledge of the report. I do not think it should be allowed to pass, simply because, sir, it affects the efficacy of what goes on in here. If the investigating office in this case, or in any other case, makes an inquiry of the government, he should be able to expect a candid answer. I don't mean that Captain Somers has not been candid, but he, himself, has a right to insist that subordinate persons associated with the investigation to tell him exactly the status of the report, and that is not done, sir. It seems to me that we have no way of anticipating what is being manipulated outside of this hearing room, which has a direct effect on this hearing, and I say again, sir, that the existence of the addendum report, which shall be a subject of examination by me, because I intend to call these laboratory witnesses, as to how in the world they managed to come up with this addendum statement, and who was the responsible person for it, because it, in effect, indicates an attempt to adjust the results of the report independently of their own thinking, but as to adjust it with someone's idea of how the prosecution should be handled.
In view of the fact that we have been denied the giving of the letters this morning, I intend to call these people and find out why it was and what instructions were given. I would say to you again, sir, for instance when such statement are contained in 2b -- as an absurd statement about positively eliminating the subject as a possible source of this hair -- I can say to you now, sir, as a person with some experience with regard to hair matters, that no lab witness would ever say you could make a positive identification of hair. It is well known that hair does not have particular personal characteristics, such as fingerprints do. Hair can be perhaps categorized in very broad general groupings, and for someone to come up with a report positively eliminating a suspect is contrary to scientific knowledge. I am sure the laboratory people at Fort Gordon must be aware of it, and it seems to me that kind of adjustment in a report indicates a manipulation of evidence, and to use another report in place of a live witness either by a conference call or in person, again, is a matter which I think should be of some concern to this inquiry, and I renew my statement, sir, that we are entitled to perhaps not at this time, but sometime before this investigation is closed, a full report by the responsible persons as to why this report was apparently here at Fort Bragg by 30 July or 31 July 1970, and that no one here in this particular hearing room was aware of its existence.
CPT SOMERS: Well, again, the government has stated its knowledge as to the whereabouts of this report, and we suggest that the issues that the defense are attempting to raise are irrelevant to this hearing, but in fact whatever happened to delay the report, whether it was delayed in the mail or what happened, is just not relevant. It is not an issue which is of any concern in any way, shape or form to this hearing. Now I do have copies of the request for clarification, and if it's going to become an issue, of the ethics of the government, I'll make them available to the investigating officer if he feels it is necessary for that purpose. I don't think that they add anything to this lab report itself.
COL ROCK: Well, I would like to state for the record that it seems to me that there was gross inefficiency if a report dated on the 29th of July could not have been in the hands of officials at Fort Bragg for the review of the counsel for the government certainly considerably prior to this time. I accept your statement that you did not receive a copy until the latter part of last week or until whenever you received it. I request that you determine what date the original report, dated 29 July, was received by the CID here at Fort Bragg, and why that report was not released to counsel for the government for his edification at that time. I would like to informally look at these documents that you currently have before you.
CPT SOMERS: Sir, I can show you a copy of the letter requesting the clarification. I can also show you an envelope in which I received this laboratory material. You can see it is stamped 2 September, sir, which is the date that it was supplied to the defense, that day or soon thereafter. I'm sorry, sir. That is the date it was mailed. It was received on 4 September, I think, which is the date it was given to the defense.
COL ROCK: Captain Somers, when did the report of 29 July first come to your attention? Approximately?
CPT SOMERS: Sir, the results of the report came to my attention, I believe it was the week following our hearing here, sometime in that period. The report itself I did not have then, however, I did notify Captain Douthat of what I understood to be the results of the report in Washington.
COL ROCK: The letter then of yours dated 25 August indicates that you did know what the results of the report were, but that apparently you were not clear on them.
CPT SOMERS: I still did not have the report, sir, and at that time I then was in possession of what appeared to be conflicting information as to what was in the report.
COL ROCK: What information did you give Captain Douthat at the time that you --
CPT SOMERS: I told Captain Douthat that it was my understanding that the results on the hair was undetermined, that the laboratory could not say that the hair was from the source of the samples, i.e. Captain MacDonald, nor could say that it was not.
COL ROCK: Did you use the word that is listed in the report itself, that is, the word "dissimilar"?
CPT SOMERS: No, sir, I did not, because I had not received word that that was the word in the report.
COL ROCK: Well, now Captain Somers, your letter of 25 August quotes specifically from the letter of 29 July. Without that report, how were you able to quote the report?
CPT SOMERS: At that time, sir, I was read part of the report, and that's not what I understood the lab to have been saying prior to that. I was still not in the possession of the report. I then had over the phone some language from the report.
COL ROCK: Which you assumed to be the report itself?
CPT SOMERS: Yes, sir.
COL ROCK: And when did you receive -- or from whom did you receive the telephone information? Do you recall? Was that from the CID lab or from the CID headquarters here at Fort Bragg?
CPT SOMERS: I did not personally receive it. It was taken by Lieutenant Ossman. The information at that time came from Mr. Grebner.
COL ROCK: So it would be safe to assume that Mr. Grebner did, in fact, have this report or probably had it on the date of 25 August?
CPT SOMERS: Yes, sir.
COL ROCK: We'll take a recess in place.
(The hearing recessed at 0934 hours, 8 September 1970.)