Article 32 Hearing
Volume 17

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(The hearing reconvened at 0830 hours, 10 September 1970.)

COL ROCK:  This order will come to order.  Let the record reflect that those parties who were in attendance at the recess yesterday are currently in the hearing room.  At this time, does the government have any further rebuttal witnesses or evidence to present before this hearing?

CPT SOMERS:  Sir, the government has no further witnesses and no further evidence save should it find that laboratory report.  In other words, with that exception, we rest.

COL ROCK:  Does counsel for the accused have any rebuttal witnesses or additional evidence to present?

MR. SEGAL:  Nothing as far as rebuttal to the government's rebuttal, sir.  I do have at this time a photograph I wish to offer into evidence to substitute for the actual white floppy hat that was here, and I hand up to the investigating officer a black and white photograph which has been previously agreed to be substituted for the original hat and make available to the government a copy for its files.

COL ROCK:  That is accused exhibit 42.  At this time the investigating officer has certain witnesses and or evidence to present before this hearing.  First will be Lieutenant Colonel (Doctor) Bailey.

(Lieutenant Colonel Bruce H. Bailey was called as a witness, was sworn, and testified as follows.)

Questions by COL ROCK:
Q  Would you please state your name, rank, arm of service, and current military address?
A  Bruce H. Bailey, Lieutenant Colonel, US Army, Medical Corps.
Q  And your current military address?
A  Walter Reed General Hospital, Washington, D.C.
Q  What is your present duty assignment at Walter Reed?
A  I am Chief of Psychiatry Services at Walter Reed Hospital.
Q  Doctor Bailey, would you please describe to me your educational background?
A  After graduation from high school in New York City, I attended the University of Kansas and the University of Illinois; went on to medical school at the University of Illinois; graduated in 1958; had my internship at Brook General Hospital at Fort Sam Huston; had three years of psychiatric residency at Walter Reed Hospital; and subsequently assigned as Chief of Neuro-Psychiatry at Fork Rucker, Alabama for approximately eighteen months; returned to Walter Reed Hospital for approximately two and a half years as Assistant Chief of Psychiatry; left the service at that time, was Superintendent of the Madden Mental Health Center, M-a-d-d-e-n Mental health Center on south side of Chicago; subsequently went full time with Loyola University School of Medicine as Assistant of Psychiatry for approximately two years; and then re-entered the Army to my present position, and since September of 1969.
Q  Doctor Bailey, are you a member of any professional societies?
A  Yes, sir, I am a member of the American Medical Association and of the American Psychiatric Association.
Q  Are you board certified?
A  Yes, sir, I am board certified by the American Board of Psychiatry and Neurology in 1966, and have served as an examiner for that board since that time.

COL ROCK:  I wish to offer this hearing at this time Doctor Bailey as an expert witness.  Does counsel for the government desire to cross examine?

CPT SOMERS:  No, sir, the government has no objection.

COL ROCK:  Does counsel for the accused desire to examine?

MR. SEGAL:  No, sir, we accept Doctor Bailey's qualifications in psychiatry.

COL ROCK:  It will be so noted in the record.

Q  Now, Doctor Bailey, have you recently had an occasion to conduct a psychiatric evaluation of Captain MacDonald?
A  Yes, sir, I have.
Q  Sir, I hand you herewith a document and ask you if you can identify this document?
A  Yes, sir, this is a report of psychiatric evaluation which was conducted by myself and two other psychiatrists at Walter Reed General Hospital.

COL ROCK:  At this time, I'd like to announce for the record that both counsel for the government and counsel for the accused have copies of this particular document.

Q  Do you have a carbon copy of that document, sir?
A  Yes, sir.
Q  If you would please, return that and I will mark this as Investigating Officer's Exhibit R-1.
     Now, Doctor Bailey, would you please describe in layman's terms, generally how this psychiatric examination of Doctor MacDonald was accomplished?
A  Well, after the initial request was made for an evaluation, Captain MacDonald and Captain Douthat arrived at Walter Reed on the 17th of August and at that time Captain Douthat briefed me as to his understanding of the request for evaluation, and subsequently, that afternoon, Captain Somers and Captain Thompson, briefed me as to their understanding of the request as well as to information in regard to the case.  I made a decision at that time to -- I had already made a decision to involve two other medical officers, both of whom are board certified, and arranged a series of interviews, initially with myself as outlined in the report.  I had available to me at that time the testimony of Doctor Sadoff, as well as a psychological report from Doctor Mack, who Doctor Sadoff had asked to assist him in his evaluation.  I interviewed the subject myself on the 18th of August and on the 20th of August.  Captain MacDonald was interviewed by Lieutenant Colonel Morgan on the afternoon of the 28th, and was interviewed by Major Edwards on the 19th.  Both Lieutenant Colonel Morgan and Major Edwards had minimal information as to the nature of the case, very sketchy ideas as to what was going on, primarily because it was most useful if they used their time to get acquainted with Captain MacDonald the best they could as a person.  After we met on the 20th and 21st of August it became clear that we were being asked for a formal sanity evaluation and statement and I felt that before we could proceed with any such comment or investigation we would need additional information, and such was required, as is again outlined in my report.  We received that information and, I believe, also to include, I had a conference with Captain Beale on the 27th of August.  Captain Beale brought the information we had requested and Captain Douthat had arranged for us to receive the raw psychological data for us to go over.
Q  Do you think you were provided with sufficient information either from Fort Bragg sources, Doctor Sadoff, Doctor Mack, or other sources to make a proper evaluation?
A  Well, sir, I -- in a situation like this, when one is some eight months away from a given event, one wants to have access to every piece of information available.  I think I am satisfied with as much information as was available was provided to me, yes, sir.
Q  Proceed.
A  We then accomplished an electroencephalogram, which is a brain wave test, on the 1st of September, which read normal, and Captain MacDonald was interviewed again by Colonel Morgan on the 1st of September and by myself on the 3rd of September.  We were at that point satisfied that we had had sufficient information, again as much information as was available, on which to offer an opinion as to the questions we were being asked.
Q  Now in view of the fact that Doctor Sadoff saw Captain MacDonald approximately two months following the murder, you and your associates saw him some six to seven months afterwards, in your opinion does this time differential affect the accuracy of your diagnosis to any significant degree as compared to that of Doctor Sadoff?
A  Well, I think we took into account the fact that Captain MacDonald had been going through this procedure, as well as had been interviewed at some length by Doctor Sadoff, and therefore there many areas that we would talk with him about which were not "virgin territory" for us.  I think in terms of our ability to gain an assessment sufficient to respond to the questions that we were asked, and given the collection of testimony of people who have offered testimony in this hearing, who saw Captain MacDonald, dealt with him immediately following around the morning of the 17th, I think that the time factor is not significant, no.
Q  Now I notice on page three of the report, Doctor Bailey, that there are three signators.  Does this indicate that each signatory concurs in the findings listed in this document?
A  Yes, sir, it does.
Q  Now would you please describe in general terms your findings and elaborate upon them in any manner that you see fit?
A  Well, as finally understood, it was my understanding that we were asked to offer opinion in terms of sanity of the subject, Doctor MacDonald, which in terms of how we are asked to make this response, this is structured in a series of questions.  The question, the primary question that precedes any question in such an evaluation is -- is there any evidence of emotional disease, defect or derangement, or was there any evidence of emotional disease, defect or derangement, and I can say that this was the primary point of our inquiry in attempts to evaluate Doctor MacDonald.  The opinions that we offer essentially are based upon that primary evaluation.  The first question that we dealt with was -- was there disease, defect, or derangement which would have impaired ability to know the difference between right and wrong?  We felt there was none.  The second question is whether there was evidence of disease, defect or derangement as to be able to adhere to the right at that particular time with regard to the acts charged.  It was my opinion, and on the basis of available information, there is no evidence that such a defect existed which would impair that ability.  A more delicate question, which has actually been more recently introduced into our military procedures, relates to the capacity to formulate intent with regard to a specific act.  Again, the primary point is -- is there evidence of disease, defect or derangement such as to impair, and this is the major thrust of the question, and on the basis of the information that we have available, there is no evidence of such defect such as to impair ability to formulate intent with regard to those acts at that particular time.  The next question relates to is there impairment on the basis of the disease, defect, or derangement as to ability to cooperate in his own defense.
     We felt that there was no evidence of such defect.  These are the standard forms of the questions that we respond to.
Q  Now what further questions were you asked specifically by the investigating officer, and what were your findings?
A  Well, it was my understanding that we were asked to deal with a question as to whether this person, the subject, Captain MacDonald, was capable of committing this act; and secondarily, on the possibility that he had committed this act, is he hiding it from his self or from other people?  I can say that a great deal of deliberation and discussion was invested in an attempt to responsibly respond to those two questions.  My opinion, and the opinion of my staff, is that the question regarding capability to commit a given act is not within the realm of the psychiatric expert in terms that -- that is the psychiatric expert is not especially qualified to respond as to a person's capability of committing a given unique, most unusual, act.
     With regard to capability of hiding, it's my opinion that this is possible.  I have no evidence or impression that this is the case in terms of deliberate behavior on the part of the subject, and feel that I can go no further again in offering psychiatric expert opinion.
Q  Thank you, doctor.  It's certainly not our intention that you go beyond what you feel you are professionally capable of providing.  One final question, sir -- in your capacity as Chief of the Psychiatric Services at Walter Reed, do you feel that your position influenced, because of that position, and your rank, the opinions of the other two doctors involved in the evaluation?
A  No, sir, I do not.

COL ROCK:  Does counsel for the government have any questions of this witness?

CPT SOMERS:  Yes, sir, I do.

Questions by CPT SOMERS:
Q  Doctor Bailey, did you have occasion to consult with an expert outside your own staff with respect to this evaluation?
A  Yes, as we got into the process evaluation, I think primarily because of the nature, and rather unusual nature, of this question in this case, unusual in our experience and probably in most people's experience in this area of forensic psychiatry, I decided that it would be useful to ask for consultation from someone who primarily works in this field, to offer me and my staff technical consultation as to how we had conducted our evaluation and as to how we might most usefully respond to the questions.
Q  Can you tell us, sir, who this consultant was?
A  Yes.  The consultant was Doctor Jonas Rappapor, who is Chief Medical Officer of the Supreme in Baltimore, who is well recognized, I think, as a man experienced in this area.  I believe he's also president of the newly formed Association of Psychiatry and the Law.
Q  Did Doctor Rappapor essentially agree with the conclusions that you reached, you and your staff reached?
A  Well, that would be putting him at a disadvantage.  Doctor Rappapor had only what we had to offer him in terms of information, ideas and we spent about three hours together talking.  The task I asked him to perform for us was to serve as a technical consultant in terms of how we had conducted our evaluation, to offer ideas, if any, as to other areas we might get into, and to help us think about the questions on page three, specifically with regard to capability, and essentially I would say that Doctor Rappapor concurred in our findings based on what we knew of the information that was available.
Q  Well, directing your attention, sir, specifically to the question of capability of committing an act, did Doctor Rappapor and your staff agree with your conclusions that this is a question which is probably outside the scope of the expertise of the psychiatrist?
A  Very definitely.
Q  Then what you are saying, sir, is that it is your conclusion -- not simply that you are personally not expert in dealing with such a question, but that probably psychiatrists as a whole are not particularly expert in dealing with this question?
A  I would agree with that, yes.
Q  Now in paragraph 5a, doctor, the second sentence of your report, the sentence appears "Our answer to the question regarding capability is that it is possible."  You go on then to state that you don't feel that you can offer an opinion as to the probability?
A  That's right.
Q  If I may rephrase this, since it's relatively simple language, but I like to make sure that I understand it, you are saying that as best you can determine, Captain MacDonald may be capable of such an act, but you cannot hazard any sort of an opinion as to whether he probably either committed it, or is probably capable of it?
A  That's correct.
Q  In evaluating Captain MacDonald, how do you assess his self-image?  Can you answer -- is that a meaningful term that you can answer?
A  How do we do it?  Is that what you are asking?
Q  Well, now I don't think I intended to ask how you did it.  What is your evaluation of his self-image or -- if you can use that term?
A  Well, my hesitation relates to my attempts to again keep within my province as an expert.
     My impression of Doctor MacDonald is that for him, as well as for the rest of us human beings, his self-concept is important to him, how he sees himself is important.  I think at the time that we accomplished this evaluation, his self-concept was troubled, primarily because, or related to the fact that, as I stated in the report, we see him as having a current depressive reaction, a current depression, and his self-concept is troubled, muddy, by the feelings related to failure, feeling related to not having fully handled or conducted himself in such a way as to prevent or obviate or negate the events of February 17th.  In terms of his overall life style, I think his concept of himself is as an achiever, as a striver, as a man who is capable of committing his energy to a task and accomplishing it, and as having been able to do that better than most of the time.  Again, I don't know whether I am muddying or confusing by offering that, but that's how I would assess or -- that's how I would assess.
Q  Well, in general -- if you can state in general -- and particularly before the events of the 17th, how does Captain MacDonald see himself in terms of his own masculinity?
A  My own assessment is that Captain MacDonald sees himself as very much of a man, and in terms of achievements, as he understands his role and his function as a man is important to him, quite important.  That's an assessment that I make on the basis of my evaluation.
Q  Is Captain MacDonald more sensitive than perhaps the ordinary person would be to any attack on his masculinity?
A  I am in trouble with the "more" because it gets into more or less.  If you are asking me, is this of significant importance to him, in terms of how he looks, how he presents himself, I think yes, that's significantly important to him.  To put it on a scale of more or less with regards to other people is extremely difficult.  I do not by any means intend to say that I think this is beyond some kind of normal range of human behavior.
Q  Are you saying then, you don't think it's abnormal?
A  I am certainly saying that I don't think it is abnormal.
Q  Do you think that Captain MacDonald reacts in that area as the average man would react?  If you have difficulty with that term, let me ask you in a more general question.  How do you think he reacts to failure?
A  Well, my own assessment, based essentially on what Doctor MacDonald was able to tell me about himself, is that he hasn't failed -- I was going to say very often -- but he hasn't failed, with the exception of this event, in terms of his own concept of his ability to handle the situation.
Q  He sees then himself as not having ever failed with the exception of this incident?
A  I think you are pushing me to put "not having ever" but, yes, I think his general picture of him is that he succeeds.  He does things which he sets out to accomplish without experiencing failure.
Q  If Doctor MacDonald can be characterized to have a weakness, would it be fair to state that that weakness could well be his own concept of his masculinity?
A  If he can be characterized as having a weakness?  If it is accepted and understood that this has something to do with a general picture of a human being, among whom I have yet to meet a perfect one, and if we're talking about an area of sensitivity, or possible vulnerability -- what I think I am trying to do is not deal with the word "weakness" because I think it has connotations that are grossly misinterpretable -- okay, I've clarified the part of your question.  We deal with the next part.  What was the second part?
Q  Could that weakness or that area of sensitivity or vulnerability be his picture of his masculinity?
A  I think, you know, I think it makes sense to me; whether it can make sense to other people or not, or a layman or not, I don't know, to -- yeah, that can make sense to me.

COL ROCK:  I'm not sure I quite understand you, doctor.  You say that that makes sense to you.  Are you saying that you agree with the latter part of that question?

WITNESS:  Okay, may I ask that it be restated again, please?

COL ROCK:  Yes, please.

Q  If Captain MacDonald can be said to have a weakness, or, as you have defined it, an area of sensitivity or vulnerability, do -- could it be said that that area of weakness or sensitivity or vulnerability was his own image of his masculinity, or his own feelings toward his masculinity?
A  Yes, as I have tried to define out of your question this concept of weakness, because I -- I think it is -- it ain't a professional term.  It does not help in getting how a particular person operates, or how his life style is.  
Q  Very good, sir.  If we eliminate the word "weakness" and substitute the word "sensitivity" and "vulnerability", then you agree with the general comport of that statement?
A  I do.
Q  Doctor, in evaluating a man psychiatrically, would you say that objectivity is a necessity for the psychiatrist, at least a striving for objectivity?
A  Well, I can say that it is for me.  I think -- yeah, I can say that it is for me.  To attempt to maintain a position where one objectively assesses information, data, observations, feelings that he observes, ways of handling feelings, and if objectivity means that one keeps oneself open to all sources of information possible -- if that's an understood concept of objectivity, yes, I think it is important.
Q  If I may expand on what I mean by objectivity, sir.  As part of keeping one's objectivity, would it not be desirable for the psychiatrist, if possible, avoid subjective personal feelings or friendliness or hatred or anything else along that line, towards the subject being evaluated?
A  To the extent that one can accept the fact that a psychiatrist is human and does, as a matter of fact, have human reaction and feelings; most of us, in terms of our training, and in fact I would say that's probably one of the co-issues of training in psychiatry, is being able to take feelings, reactions he has to a given person in a great situation and use that data.
     Now, again, I think I am defining objectivity.  Perhaps I'm not.  If I can be more clear, I'll try to be.  The fact that Doctor MacDonald is a warm, engaging, personable, young man, who establishes rather quickly a sense of warmth, is, I think, part of his life style, and it's certainly part of the picture of him as a person.
Q  Sir, I gather you have read the testimony of Doctor Sadoff?
A  Yes, sir.
Q  Can you give us an opinion from his testimony whether Doctor Sadoff maintained the necessary objectivity with respect to his evaluation?
A  I think I would be way out of bounds to -- to ah -- you know, the only data that I have in dealing with Doctor Sadoff is his testimony and two telephone conversations I had with him.  I don't think personally that his testimony, per se, is something that allows me to come to a conclusion as to his maintenance of objectivity.  Certainly as I read it he said that he had a rather positive reaction, warm reaction to Doctor MacDonald.  I could not hazard a guess as to whether this impaired his ability to offer an objective opinion, because I haven't had the opportunity to sit down and compare data and compare facts and go over it with him.

CPT SOMERS:  No further questions.

COL ROCK:  Counsel for the accused?

Questions by MR. SEGAL:
Q  Doctor Bailey, if I may, I would like to clear up this very last matter that you were talking about, about the objectivity of Doctor Sadoff's examination.  I would like to read to you a question that was put to Doctor Sadoff at the hearing, sir, and his answer, and then ask you whether that answer in the context of the question indicates to you some basis for belief or suggesting that Doctor Sadoff is something less than objective as a psychiatrist seeks to achieve in the relation with their client.

COL ROCK:  Excuse me, counsel.  What page is that?

MR. SEGAL:  I am referring now to page 1264 of the Article 32 proceedings.

CPT SOMERS:  Sir, I'll object to that.  The doctor has read the testimony of Doctor Sadoff.  Now as I understood the defense question, he wants this in context, I suggest he either asks the question based on Doctor Bailey's memory of that testimony, or that he read the whole contest of that question.

CPT BEALE:  The objection is overruled, Captain Somers.

Q  The question that was put to Doctor Sadoff by Captain Somers was as follows.  "Doctor, you've said several times that Captain MacDonald, as you know him, would not do a specific thing, and this leads me, if you will excuse me, Doctor, to the question of your own reaction to the man.  How do you feel about him personally?"  And Doctor Sadoff answered as follows.  "Well, it is a difficult question, because I rarely think about how I feel about a person personally when they are patients.  But if I allow myself that indulgence today, he's very gracious.  He's a very warm person whom I must admit I like.  I -- for example, when I came up here today he had his hand out with a smile.  But that's characteristic of him.  It's hard to always put people's behavior in clinical terms.  It sounds kind of cold and detached.  Sometimes we have to do that, but he is likeable, yes, and I found working with him a great deal more pleasurable than working with many of the people I have to."  Now, is there anything in that answer by Doctor Sadoff that would lead you to believe that he gave indications that a relationship that Doctor Sadoff had was somehow subjective rather than objective, because apparently he found Captain MacDonald a likeable person?
A  I'd like to expand a bit.  The decision as to whether -- I'm offering my belief, not my guidance, as to whether a given witness or evaluator in a given instance is objective, is the responsibility of those people who have to listen to and process what that person has to say.  What you have read to me does not suggest to me that there was a loss of objectivity, an ability to do those things which I said I would do in accomplishing an evaluation, which is to process all of the data that I can get to come to some reasonable conclusion as to an opinion in regard to questions I am asked.  Again, even the decision as to whether a given witness, be he expert or otherwise, has veracity or is honest, or is objective, or is thorough, I'm afraid has to rest with Colonel Rock, rather than with me in commenting on this.  I -- I did not observe Doctor Sadoff's evaluation.  I don't have a transcript of his evaluation.  I don't need it, I don't think, and I don't feel that I am capable of commenting on -- did he seem to have been able to maintain objectivity in his evaluation.  I don't think that's something I can comment on.
Q  I don't mean to belabor the subject.  I'll ask one other question.  Do you have an impression based upon reading Doctor Sadoff's testimony and whatever of it that you now recall, that there was anything in his testimony, as you read it that appeared to show a loss of objectivity?
A  Well, I'll begin to answer your question, and then I will expand further, and you can stop me if you wish to.
Q  Excuse me.  I will amend the question, if I haven't made it clear, because he found Doctor MacDonald likeable.
A  Oh.  I have to agree with Doctor Sadoff -- it was a pleasure to work with a subject or a patient who is likeable.  In terms of my own reading of what Doctor Sadoff has to say, and what I have to say may or may not be accurate, but my impression is that Doctor Sadoff offered opinion as to whether he felt that Doctor MacDonald was capable of committing a given act.  It is in that specific area, I think -- and I discussed this with Doctor Sadoff -- that I would tend to disagree as to the ability of an expert to testify.  The fact that I might disagree with him professionally in a conference or something is a completely separate issue.  In terms of ability to offer expert testimony I think that I could not allow myself to go as far as Doctor Sadoff went as I recall as I read his own testimony.  In offering an opinion as to the likelihood that a person was committing a given act, this is again the substance of the clarification we tried to make in our evaluation on the last page of our report.
Q  Would it be accurate to say that you and your two colleagues at least were of the opinion that psychiatrists should not try and venture into the answer of the question of probability?
A  You said would it be safe to say that we would not want to venture into that?
Q  Yes.
A  Yes, I think that's safe to say.
Q  And is that really your disagreement with Doctor Sadoff, that he tread where you would choose not to tread?
A  In that area, yes.
Q  Now may I ask why -- some additional detail you've already given us -- you felt there was something special that Doctor Rappapor from Baltimore was in brought in?  That is, what is the specifics that he added to your own cumulative knowledge of your section at Walter Reed Hospital?
A  Well, again, if I may put that in context.  We have a fair -- because of the nature of the Walter Reed Hospital and of the nature of it being used at times as a special place for evaluation of special kinds of problems -- we have at Walter Reed a fair degree of experience in issues in which we have to offer opinion as to responsibility, capacity to understand right from wrong, et cetera.  We have a fair amount of experience -- I personally have a fair amount of experience in dealing with subjects, patients, who are involved in questions of committing, related to the commission of murder.  I'm not uncomfortable in terms of my experience to offer an opinion in that area.  As we, however, in the course of that two weeks or so, as it became clear that this issue of probability seemed to be a significant and major issue -- and that's our appraisal -- it may not be accurate -- but it's my appraisal based on a phone conversation, as well as reading Doctor Sadoff's testimony, I felt that I could usefully benefit from a technical consultant.  And when I say technical, I did not in any way ask Doctor Rappapor to offer an opinion in the same way that I am offering an opinion.  That would be unfair because he did not have direct ability, access to Doctor MacDonald's interview or anything else.  I asked him to serve as a technical consultant, and he maintained, I think, that position.  And I asked because obviously this is a -- a very important matter being decided.  It is an extremely unusual matter being decided.  It's a matter that I certainly do not have experience with at this stage of the game, it is usual to -- most unusual -- to be asked to accomplish this kind of evaluation in this kind of case at this stage of the proceedings, and therefore as I think any doctor would do in a given instance I asked for someone who works primarily in this field to come in and offer consultation.
Q  Now you say "works in the field."  Again, are you saying that Doctor Rappapor is recognized as a specialist in forensic psychiatry?
A  That's correct.
Q  And what you were doing is asking for, I presume, technical suggestions in terms of had you followed all the possible procedures that you might follow to evaluate the subject and other --
A  And the issue of probability in terms of how far can we go.  What can we offer as expert witnesses?  In those two areas was the major context of that consultation.
Q  Now in regard to the answers that you gave to questions on page 5 -- paragraph 5 of the report --

COL ROCK:  Paragraph 4?

MR. SEGAL:  Paragraph 5 on page 3, sir.

Q  You stated that in regard to the capability of Captain MacDonald to commit the act, that it was possible.  Could you clarify for me the context or the meaning of the word "possible" as you and your colleagues would use it?  How maybe you were using it in conventional lay term or does it have a special significance to you as a psychiatrist?
A  I don't think it has a special significance to me as a psychiatrist.  Does that answer your question?
Q  All right, now may I ask when you say "possible," what were you intending to convey in terms of that word, that is there are things which are mathematically possible?  Or are we talking about something that you say is certainly a psychiatric possibility?
A  You know, the way you phrase it, probability is in there.
Q  I know that, Doctor Bailey.  What I was thinking of, and again I have reference to the mathematical possibility.  When we talk about a remote mathematical possibility, that is a one chance in a million, if we can use that expression.
A  A person would then have to respond "yes" if you have one chance in a million that something will happen, it is possible.  But then that also places a probability factor into the question.
Q  Without attempting to put you in a position of placing a probability factor in Doctor MacDonald's case, what I am trying to ask you now is to put your use of the term "possible" in a context like that.  Are you talking about something of a large possibility, substantial possibility, or are you talking about a remote possibility, or you may choose any place, any side of the guideline?
A  Well, you know, you are still talking about a probability as far as I can hear.
Q  I suppose so.
A  But I can try to expand.  In terms of my capacity or my awareness of other psychiatrically trained people's capacity to deal with predictions with regard to human behavior, we are significantly limited.  Significantly limited in our ability to validly, that is with a significant degree of concurrence between our prediction and the event.  We are not very good at it.
     Certainly when it comes to an extremely unusual event, and when it comes to one person, to try and tie together something that makes some kind of assertion as to whether it is possible or impossible, that does, as you have just done, bring in the figures that relates to odds of probability, is -- I personally think -- beyond the scope of a psychiatric expert.  And when I say possible I mean possible as I think everybody in this room understands possible.

COL ROCK:  May I interject?  Then could I paraphrase your statement by saying anything's possible?  Would you go that far?  Do you mean in that fashion?

WITNESS:  Pretty close to that, yes, sir.

Q  Can we take the converse of that question and ask you, doctor, whether you would say in the circumstances of a given patient, that it was impossible for him to commit an extreme act of violence, a triple homicide?  Do you think that given circumstances would ever be a situation that you could arrive at such conclusion that it would be impossible for such a subject to have done a given act?
A  Well, I personally have not had that experience in my training or in my subsequent work as a clinical psychiatrist, number one.  Number two, I've been surprised a number of times when I have entertained the idea of what I think person is able to do or not able to do, probably do or probably won't do, as I worked with them.  I've been surprised.  I think I've tried to answer your question.
Q  Well, you do suggest, don't you, that sometimes you have to get into the field of predication, though?
A  In my profession as a clinical psychiatrist, yes.
Q  Well, is there some significance in saying as a clinical psychiatrist, as opposed to saying you are a psychiatrist have to get into the business of predication of -- oh, behavior, progress of clients, patient development or regression of development?  Aren't you talking about predication as a tool of psychiatrists?
A  Well, first of all, I was talking about the fact that as a clinician, working with someone, thinking that oh, I have assessed this person as best I can, having the experience of being surprised by a given event or occurrence in terms of behavior under a given set of circumstances; do we get into the area of predication?  Yes, a great deal of research and work is being done in the area of predication.  I -- if I am digressing too far, stop me.  We are asked to make predications with regard to the ability of a young candidate to complete aviation training.  We are asked to conduct a series of examinations such as we develop a level of probability that this guy is going to succeed, because there is a lot of money riding on it, because there's a lot of investment in him as a person, and we are asked to make probability types of decisions, and we do.  We are far from 100% reliable in terms of our ability to make those predications.  We are asked to make predications in terms of security evaluations.  I do that personally quite commonly, in terms of being asked an opinion as to do I consider this person as a responsible reliable risk, which obviously contains within it a question of do I consider that there is significant likelihood that this individual will at some point in his life breach security, and I have to make a decision, yes.  So I am not unfamiliar with that.  I do want to clarify that I think that in this instance we're talking about an extremely rare, unusual event, and we are talking about one person, not a hundred people who I could then make a predication about a certain percentage of or something, and I don't believe that I have the skill to offer a predication or offer a statement about probability in this case.
Q  Are psychiatrists called upon, though, when dealing with certain emotionally disturbed cases to make a predication of their likelihood to commit suicide, which I think also would be characterized as somewhat of an unusual act?
A  Well, it's sufficiently usual that it's probably two to three times a day in my clinic.  Maybe that's an exaggeration, certainly a number of times a week.  Yes, we have to make decisions as to whether we could consider a person a suicidal risk.
Q  And in a sense, of course, in determining whether he is at risk, you develop a certain number of devices or indicators to help you make that determination, do you not?
A  Right.
Q  Did you use or apply any of those indicators that you are talking about in determining a suicidal risk -- that type of tool -- in making an evaluation of Captain MacDonald?
A  Well, when you say "that type" are you going with my definition of how I approach it, or do you have something else in mind?
Q  I am going with your definition.
A  Did I assess?  Number one, was there currently a significant risk in Doctor MacDonald in terms of some sort of suicidal behavior or act?  Yes.  Did I assess that he, at a given point in time, had considered suicide and was a suicidal risk?  Yes, I did.  And we discussed the issue.
Q  And did you arrive at a projective conclusion as to whether you thought he was or was not a suicidal risk?  Did you make some predication in your own mind or --
A  Sure, I did, because I -- I felt that at the present time, that I did not see him as a suicidal risk.  I see him as having a depression, as I said, of significant proportion.  I see him handling this primarily through his handling of these proceedings, I think primarily.  I assessed his -- I and other doctors, I'm collating all this together -- assessed his sleeping patterns, his eating patterns, his concept of the future, his concept of self-worth, his concept of where he could go from here; these are the sorts of things that we assessed.  I assessed his capacity to act impulsively, and I asked him directly about experience of suicide thinking and we talked about it on two occasions.
Q  And I assume that these various other areas, the ones in addition to suicide that you and your colleagues made some predications for yourself that is you did not view him as being able to do something in the future, was or was not viewed as a person who would complete his career as a physician?  You made a number of other judgments like that, I assume, about him?  Did you, in these predications about Captain MacDonald, attempt to determine whether, if he had committed the crimes which he is charged with back in February, what the likely future course of his conduct would be?
A  What predications?
Q  Well, if you -- let's put it this way -- if you had concluded that Doctor MacDonald had committed the crimes in February, did you project what is likely his future behavior would be?  That is, he would or would not go on with his career; he would or would not commit suicide; he would or would not be a longrange possibility for mental illness because of it.  Or did you relate the events which he is charged with as a possible future conduct?
A  I find that still a complex question.
Q  At any time, making any of your predications of Doctor MacDonald's future probabilities of doing certain acts or behaving certain way, did you consider whether or not he had committed the crimes as a factor that would determine his future conduct?
A  Now, you keep talking about my predication of his future, or his behavior.  Have I entertained the possibility that he, in fact, committed a crime, and tried to put that into context of understanding how he was behaving in the course of our evaluation?
Q  And then projected that as to what is likely to happen to him emotionally or otherwise?
A  I thought about it, sure.
Q  You said before, earlier, that you didn't think there -- it was a psychiatrist's duty to answer the question about Captain MacDonald's capability about committing this crime.  As a matter of fact, I recall Captain Somers asking you the following question and you gave the following answer.  Captain Somers asked you whether you had not said that you could not hazard a guess as to Captain MacDonald's capability to have committed these crimes.  Do you recall him asking a question with that phrase "hazard a guess" in it?  Does that seem familiar to you?  To my recollection, he did, and you further said that you agreed with that, you could not hazard a guess as to his capability.  Does that seem consistent with what you said?
A  Yes.
Q  May I ask that if a psychiatrist cannot hazard a guess as to capability, of committing extreme acts of violence, can he suggest who in our society might be an appropriate person or group to pose such a question to?
A  Come on, now!
Q  All right, I will.  Doctor Bailey, in your experience, don't judges, in sentencing persons convicted of crimes of violence, in determining the length to set a sentence, make a predication as to the likelihood of this person inflicting violence upon a society?
A  Surely, and juries make decisions as to whether a guy did it or didn't.
Q  Right, but their decision is a hindsight decision, and I'm saying that a judge is frequently called upon to make a predicted decision about such an act.
A  Right.
Q  Do you think a judge, without psychiatric training, is in as good a position, better position, or worse position than a psychiatrist to make a judgment on capability of committing acts of violence?

CPT SOMERS:  I object.  That's totally unconnected and irrelevant.

MR. SEGAL:  May I say, just, sir, the suggestion is that perhaps it was inappropriate for Doctor Sadoff to have made such a prediction and Colonel Bailey has indicated he would not do it, and I wish to show through the line of questioning now that I think there is some basis to believe that it is regularly done, and as a matter of fact, I will bring it in more closely in the field of psychiatry in a moment, but I do think this is so related to the criminal process.  We have to recognize that we are, all of us, engaged in the prediction of behavior as to violence.  That some of us have less adequate tools than others, and I think that psychiatrists may have more adequate tools, and maybe not.  Maybe Doctor Bailey would disagree with that.  But I think that's where we are going and that's relevant.

COL ROCK:  It occurs to me that the judge is placed in a position that he must make a decision, and I think it is recognized that his is not a scientific decision.  I wish you would go to another line of inquiry, please.

Q  Doctor Bailey, are you familiar with the work of Sheldon Gluck and his wife?  That's G-l-u-c-k.   A  No, sir.
Q  Perhaps the more better known Gluck Studies, about the prediction of behavior of juveniles and juvenile delinquency patterns?
A  No, sir.
Q  Are you aware of any studies that are done by psychiatrists in terms of predicting the likelihood of delinquency from juveniles, that is taking data about the background, family, education of youngsters, and predicting a likelihood of their committing delinquent acts in the future?
A  In terms of that specific area, of a study done to predict whether future delinquency would occur, no, I don't know of any specific studies.
Q  Are you familiar that such work is being done, and such research is being done by psychiatrists in development of prediction in the area of delinquent behavior?
A  I hope it's being done.

CPT SOMERS:  I object to this line of questioning on the same basis.  We are still not getting anywhere.

CPT BEALE:  Mr. Segal, are you heading in a certain direction, here?

MR. SEGAL:  I think we are having a very useful kind of discussion about prediction and I think we are going someplace.  I want to ask Doctor Bailey whether or not he would agree or disagree with some other statements.  Now I have -- I'd like to read, if I may, to you, Doctor Bailey --

COL ROCK:  Just a moment.  This hearing will be recessed temporarily.

(The hearing recessed at 1008 hours, 10 September 1970.)

(The hearing reopened at 1027 hours, 10 September 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that those parties that were in attendance at the recess are currently in the hearing room.  I remind you again, Doctor Bailey, that you are under oath.

COL ROCK:  At the recess an objection was raised by counsel for the government on course of inquiry by counsel for the accused.  That objection is overruled.  Proceed, counsel.

Q  Doctor Bailey, I would like to read you about four relatively short paragraphs from an article and ask whether you agree or disagree with the paragraphs.  I want to identify first for the record, if I may, the article as being entitled "Dangerousness of Diagnosis and Disposition" by Doctor Melvin S. Heller, H-e-l-l-e-r, which appears in 46 Fed Rules Decisions, and it was published in 1969.  Doctor Heller further identified in the following fashion.  He is a clinical professor of psychiatry and director of the division of forensic psychiatry of Temple University Health Sciences Center.  He is a lecturer in law and co-director of the unit in law and psychiatry, Temple School of Law.  He is director of psychiatric services of the State Correctional Institution of Philadelphia.  Now, with just that preface, I want to read you first this paragraph and ask whether you would agree or disagree with Doctor Heller's statement.  It is entitled -- the tile of the paragraph is --

CPT SOMERS:  Excuse me.  Before the question is put, the government would request that not only the paragraph in question be read to the doctor, but that he be able to examine the article as a whole.

MR. SEGAL:  I certainly have no objection to whatever point -- if you'd rather adjourn and let him -- I'd be delighted to make the whole article available.  It has been published and widely circulated.  I'll be glad --

COL ROCK:  Doctor Bailey, would you like to read or look at the whole thing, or is the procedure that's being conducted currently satisfactory to you?

WITNESS:  Will it be reasonable to first of all understand the question I'm being asked and then decide?

COL ROCK:  Yes, certainly.

WITNESS:  I might best respond.

COL ROCK:  We will hold your question in abeyance, sir.  Proceed.

Q  The statement that's contained in this paragraph is one that I'll ask you at the conclusion of which you find yourself in agreement or disagreement about with Doctor Heller's statement here.  "The determination of dangerousness then, with respect to an anticipated human behavior, emerges as a problem of prognosis or prediction of impending violence.  This prognosis, like any other forecast, depends upon the accurate diagnosis or evaluation of a situation, and its anticipated course of development with or without remedial interference.  As such, it depends upon the timely recognition of significant clues, signs or behavioral signals in a given setting."  Now, while I would have three more paragraphs, I think of a similar nature, it is your choice, Doctor Bailey, if you'd rather look at the article for a short while.
     Might I ask in regard to that paragraph, did you find yourself in agreement or disagreement with Doctor Heller?
A  I would agree.
Q  The following paragraph appears under the heading entitled "Clinical Clues."  Doctor Heller writes.  "Clinical histories have a quantitative and accumulative factor.  In its conclusion of a subject's emotional stability and reliability versus instability or predictability of dangerousness, the clinician is alerted to the possibility of dangerousness by an accumulation of data which tends to follow certain patterns seen in the background of known violent or dangerous persons.  Although no one of these factors by itself is pathomomatic, an impressive combination of them warns the clinician to look further and most carefully."  There is a long listing of clues, et cetera, which I will not read to you, but I ask whether that portion of the paragraph is a portion that you find yourself in agreement or disagreement with Doctor Heller?
A  I would agree.  
Q  Continuing under the same title "Clinical Clues," I want to read two short paragraphs that are consecutive to each other.  "Psychiatrists particularly look for history of episodes of unpredictable erratic or inappropriate behavior.  These might betray themselves in glibly explained job changes or gaps in the chronological history."  Next paragraph.
     "Similarly impressive is a history of bizarreness of affect" -- that's spelled a-f-f-e-c-t -- "a cold fish who often given the superficial impression of a person who sticks to the same daily routine in a dull ritualistic fashion, only to suddenly and inexplicably explode.  Such behavior sometimes particular suspicious of latent schizophrenic cases or organic brain disorder."  Would you find yourself in agreement or disagreement with Doctor Heller's descriptions there?
A  There is little to agree or disagree about.  The -- he's commenting on how he would assess clinical clues, and I would accept what he says.
Q  Continuing again, under the same general chapter heading of, "Clinical Clues," "The criminal act itself must be analyzed as an episode which is possibly symptomatic of underlying emotional pathology.  Of considerable importance is the quality and degree of premeditation and the subject's mental and emotional state in the hours or days immediately preceding the crime.  In retrospect, gestures for help are often seen as having been unheeded or unrecognized or ignored, and one sees a number of cases of episodic balance which constitute an almost transparent cry for external control or incarceration, when inner controls crumble."  Would you agree or disagree with Doctor Heller's comments there?
A  I'll accept that.
Q  Is it fair to say from the four paragraphs that I have read here, that Doctor Heller is taking the position that a psychiatrist has a number of specific kinds of clues, be they acts of omissions, history of the patient, and similar kind of clues that he can rely upon to give him a basis for making a judgment about a man's ability to commit violence?  Is that a fair statement of what Doctor Heller said in the parts I have read to you?
A  Would you say that again, please?
Q  May I ask the stenographer to read back?

(Reporter complied.)

A  Well, again, I don't know how far you want to press this issue with Doctor Heller, and would like to reserve the opportunity to read the entire article if it seems that we are getting into an area that I don't have full understanding of.
Q  If I may clarify, I am just asking whether, in view of the facts, that you find yourself in general agreement with what appears to be general propositions stated by Doctor Heller, in order that I might go to the next question, I want to make certain in my own mind that we have in fact, in essence summarized Doctor Heller's position.
A  If I hear this, and as I would read the article, I think number one, I would -- I would accept -- it would seem to me to make sense, what he has to say about the task that a psychiatrist has to do in trying to make predications.  I have a very major assumption, however, as I listen to this, and that is that Doctor Heller is in the position where he is dealing with a situation in which he is dealing with a subject who has committed an act of violence, that is in a correctional institution, or is about to be in a correctional institution, and he, as an expert, is given the task of advising the court as to how this person should be sentenced or whatever.  I think that's a very important distinction to make because I've been in that situation many times myself, in which, as he describes, one can assess accurately in diagnosis of a situation what, in fact, happened, what did the person feel?  What did he think of?  What was going on?  I don't feel I have that assessment in this situation, in this case.  It is not an accepted fact that a given act did occur.  I am not in a position in which I can tie together an accurate diagnosis of a situation with a history and, yes, I fully agree that I would look for quantitative and cumulative facts with regard to human behavior, in terms of impulsiveness, in terms of ways a person handles stresses, in terms of consistency of behavior, in terms of ways of dealing with loved ones as well as others, and I -- in fact, I think -- tried to collect this information as best I could.
Q  Aren't those all the kinds of signals that Doctor Heller is talking about that a psychiatrist uses to try and make a judgment, when he is in a position of Doctor Heller being forced to make a judgment?
A  Being forced to make a judgment about -- I would guess, I may be inaccurate -- but he is talking about making a judgment after a given step has been made, which has not been made in this instance, that is that a given person has been found guilty of a given act, and he is then asked to evaluate the individual and make predications about the future.

COL ROCK:  Counselor, I think the doctor is having to assume too much about what's in that article.  I think it would be appropriate at this time for him to be allowed to review it, if you wish to pursue this.  

MR. SEGAL:  I quite agree, although Doctor Bailey's assumption is right.  But I have no objection.

WITNESS:  Do you want me to read this now?

COL ROCK:  Yes, do you feel you have to read the entire thing, or can you just skim through it in five to ten minutes?

WITNESS:  Yes, sir.

COL ROCK:  This hearing will be temporarily recessed.

(The hearing recessed at 1041 hours, 10 September 1970.)

(The hearing reopened at 1100 hours, 10 September 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that those parties who were present at the recess are currently in the hearing room.  Doctor Bailey, have you had sufficient time to read the report that counsel for the accused presented to you?

WITNESS:  Yes, sir, I've been able to scan the article and think that I understand its contents.

COL ROCK:  Fine.  Would you proceed, counsel?

MR. SEGAL:  Yes, sir.

Q  And the assumption that you made about the circumstances of Doctor Heller dealing with predictions are in fact true?  The assumption of having to deal with persons who had been convicted?
A  (Witness nodded in the affirmative.)
Q  Now taking together the various suggestions that Doctor Heller has made about looking for clues, isn't that in fact, in part what you and your colleagues were doing in looking at Captain MacDonald?  That is you were looking for clues and signals about this person that might be of some indication about what behavior could be expected for or from him, or what behavior was possible from him in the past?
A  If I may expand a bit on Doctor Heller's article in terms of my own understanding?
Q  Certainly.
A  First of all, he's talking about the responsible position of a psychiatrist in advising the judge in a pre-sentencing sort of situation.  He spends a good deal of time talking about the fallibility of this capacity to make predications, and offers, I think, some extremely useful ideas, which I think we have incorporated as best we could as to how one goes about trying to assess this data with regard to predicting dangerousness, and now again, he is faced primarily with the problem of someone who has been convicted of committing a dangerous act, and make a prediction as to whether he will do it again, or whatever, which again, I would like to say, is an extremely different circumstance from my own in this evaluation.  I think there are a couple of parts I would like to add to your introduction.
Q  Certainly, you may feel free to add if you think it will clarify the inquiry in any way.  I'd be glad to have your suggestions in that regard.
A  Near the end, on page 597, he has a heading called "The Danger of Diagnosing Dangerousness."  "Now that we have discussed some of the potentials and pitfalls of the prediction, of the methods used by clinicians to arrive at a prognosis based upon a dynamic, rather than a descriptive diagnosis, we might ask how much trust should a court place in a psychiatrist's report.  If you are asking about trust, the answer is none.  The judge can trust no one.  An observation worth considerably more than the U. S. ten-cent upon which it appears.  No report should be accepted in faith, but should be considered and weighed along with all the other evidence at hand.  The diagnosis is not a ruling, but an expert clinical opinion available for the court's consideration.  Psychiatric reports vary as much in quality and quantity as legal briefs and psychiatrists vary in professional competency and individual skill, background, training, and experience almost as much as lawyers do."  The last paragraph is "The Freedom to be Formidable."  "It is perhaps not by accident that the diagnosis of dangerousness is a difficult and complex one.  We must recognize that almost all men and women are potentially dangerous under certain circumstances.  The ability of man to hide his true feelings and intentions from others is part of his defensive foraging, hunting, breathing, business dealing, poker playing, tyrant, overthrowing ability.  The capability of man to conceal his dangerous designs by this time is part of his naturally endowed" -- I'm sorry -- "is part of his naturally evolved equipment, which makes it difficult for him to be permanently enslaved as a species.
     Dangerousness and the secrecy of underlying hostile intentions are part of a man's heritage, a kind of biological 5th amendment with which man is endowed by nature.  The danger of a simple, infallible test for dangerousness is that it becomes the greatest tool for tyranny invented.  It should therefore be a matter of some comfort to courts and lawyers that its diagnosis is a most difficult, time consuming and responsible task."
Q  I assume in having read that that you would find yourself in agreement with Doctor Heller?
A  Very much.
Q  That, in fact, there is no infallible psychiatric test to be applied in the subject matter we are talking about?
A  Exactly.
Q  But there isn't any suggestion in Doctor Heller's article, is there, that he feels that psychiatrists cannot aid the courts substantially because of their special training background in making predictions and evaluations subject to the caveats of their limits of medical knowledge?
A  Particularly in that circumstances that he finds himself in, of evaluating a person who has been convicted, and offering pre-trial -- I'm sorry -- presentencing counsel or advise to the court, particularly those circumstances.
Q  Now, right.  Isn't the absence of known acts of violence one of the clues that are used in making judgments about a patient's situation?
A  That's one of the clues I look for, yes.
Q  And in this case you placed a great deal of weight on it because Doctor Heller is always dealing with at least knowledge of known acts of violence, as one of the starting points for this evaluation?
A  That's correct.
Q  In Captain MacDonald's case, did you become aware that he had committed known acts of violence towards other persons?
A  I did not become aware of any known acts of violence in Captain MacDonald's case.
Q  Now did it appear anywhere, or did you have the impression or your examination of Doctor MacDonald, that violence is a technique or method that he would use or resort to work out any kind of problem or difficult situation that he fell into?
A  I would like to know how -- what the limits are of the definition of violence, as you use them.
Q  Well, I would suggest that perhaps violence meaning the use of excessive force to harm other persons.  You may read that as severe blows, administration of using a weapon against someone else, anything along that line.
A  I have no information about that, in terms of that degree.  I do have some idea about other aspects of the way he has operated, which I take into account as advised by Doctor Heller.  Doctor Heller makes a rather important point about polarity between affects, degrees of love and hate, et cetera.  Doctor MacDonald's life style has been -- certainly, since he got into medical school and thereafter -- has been to go to great extremes in terms of helping people.
Q  Why would he do that, or why that device or activity that he resorts to?
A  I don't know what you mean by "why."  I'm just describing a fact, a phenomena.
Q  Does he do this because of some, doing something for him in terms of his handling life's everyday complications?
A  I could make that guess, but I don't know.  His ability to take action in a given instance to -- well, to take action in handling feelings of conflict, I think, exists in terms of his -- well, beginning in terms of his own activities in sports, beginning in terms of -- related to terms of his volunteering for active duty, in terms of his expectation that he would be sent to Vietnam, in terms of his volunteering for Special Forces and jump training and hiding the fact that he had a lumbar disc, because I would assume, I was under the assumption that he'd be disqualified if he did not hide that.  His ability to go ahead and take action to do something that he wants to do exists.  Now, I don't know anything about how that connects with something with regard to an extreme of violence as the act that's under consideration, but in terms of a guy who is action oriented, I see him as actionary.
Q  But without any history or other clues to indicate that the action that he would take, as best you could make a judgment, would be one that would take extreme personal violence against the individuals who --
A  I think I made very clear that any discussion of that, that I could make, would be mere speculation.
Q  When Captain MacDonald had a frustration that he was confronted with in his life, how would he, based upon your observations, how would he handle such a frustration?
A  Well, my own assessment is that he would look about him to find as accurate a definition of the situation as he could find, to look for ways of dealing with the situation, and, you know, again my own picture is that he's been generally, he's been quite successful at this -- doing something to handle it.
Q  And in saying doing, does that mean anything or to adopt a task for himself which would be a way that he'd resolve this problem, a task, that of being a job or an activity, which is one that would be socially, normally accepted activity?
A  I have no information or evidence that it's anything other than what you just said.
Q  What I am concerned about is whether I understand the word "task."
A  If Doctor MacDonald -- you know again, I'm speculating, and you're asking me to.
Q  Yes, sir.
A  My speculation is that if he --

CPT SOMERS:  Excuse me.  I object to speculation.

COL ROCK:  Doctor, is it a professional speculation, or is it the normal speculation that I might do when asked the same question?

WITNESS:  The risk, Colonel Rock, is that it would be interpreted as knowledge rather than guesses, in terms of tying together pieces of information.  That is the risk in terms of speculation.  We are trained to do it all the time in the sense of trying to come to what we call a formulation of how event A connects with B, C and D.  But I would like to make clear that I'm being asked to make guesses to fill in gaps, and in that sense, yes, I'm probably more trained to do this, as part of the way I work, than someone not trained to do so.  It's validity with regard to the task that you have, I think I -- I can comment on, so that's why I tried to clarify that I am speculating.

COL ROCK:  The objection is overruled; however, the investigating officer knows that this is a professional type of speculation and will lend whatever weight appears to be appropriate to the answer that's given.  Would you please state the question again, counsel?

MR. SEGAL:  Might we have the recorder read back, sir?  I don't want to change the premises.

(Reporter complied.)

COL ROCK:  I wish you'd rephrase the question, I'm still confused.

Q  What I want to clarify perhaps is the word "task."  The way you have used it this morning, would that task include setting about to murder one's wife and children?  Is that the type of activity that's accomplished within this meaning of the word that you're talking about?
A  Yes, everything -- and again, I am speculating -- that act would be in utter desperation, without having other available ways of handling frustration in the personal relationships available to him.  My picture of him is that his capacity to deal with feelings, conflict of feelings is a close inter-personal relationship within his own family is somewhat limited, and that he would tend to, for example, given a sense of discomfort or frustration, or whatever, in a close inter-familiar relationship, he would tend to handle that by not saying anything or not doing anything, and working it out on the basketball court or going to a hospital and taking care of a lot of patients, or something of that nature.
Q  Would that be the kind of response to frustration which would be within normal limits?
A  Yes, sir.
Q  Is it fair to say that an important part of the evaluation of Doctor MacDonald included taking from him a history of events of February 17th?  The night of the crime.
A  Did I take a history of those events?
Q  Not only that, but was that not one of the important parts of the questions about what happened on February 17th?
A  Yes.
Q  Was there any evidence then, doctor that Doctor MacDonald was attempting to hide from you facts of what happened on February 17th?
A  Well, again, I must put that in context.  Talking about the events of the 17th were extremely difficult for Doctor MacDonald.  There were times within my own interviews with him when I felt that he was controlling, processing, filtering the responses he gave to me in specific questions.  Again, I do not label this as hiding or deliberate attempts to deprive.  I do not have that feeling, but there were times when I felt that he was controlling his response.
Q  Would that again be a response within normal limits considering the set of circumstances?
A  Considering the circumstances of his present circumstance I would consider it quite normal.
Q  Including the loss of the wife and two children under the circumstances?
A  Yes.
Q  Did you have any impression at all that he related, intentionally related to you a totally different story about February 17th than what actually happened?
A  Well, the "intentionally" and "totally" put it in great extreme.  I certainly did not have that impression.
Q  To take it away from that perhaps too high standard, let's just limit it to the fact that working on an impressionistic level, did you come away with the impression that Doctor MacDonald was contriving events of February 17th?  What I am talking about is, did he largely contrive the episode as he described it to you?
A  I do not have that impression, no.
Q  If you had had that type of impression, appearing to contrive a substantial portion of his story of what happened the night of the crime, would that have been a significant clue or sign to you?
A  If I had had that impression I would have confronted him with it.
Q  And the purpose of such a confrontation would have been what?
A  To see how he handled it.
Q  Aside from how you would have used it, would you have drawn any conclusion from an impression that you were hearing a story which was largely contrived or you felt largely contrived, based upon either the appearance or manner of the patient or any evidence you might have?
A  Perhaps it isn't your intent, Mr. Segal, but I find you pushing me to making great issues out of specific pieces of air, and I have tried to make clear, and again, your reference to Doctor Heller I think beautifully makes clear that that is not the way a psychiatrist assesses a problem.
Q  Maybe I misunderstood when I read Doctor Heller's article, what I've heard generally, that of course the taking of history is an important element in any examination, and that further, that the appearance to the psychiatrist, based upon known training, knowledge and ability to perceive things that should be logical, that any perceptions he makes, you know, of substantial deception being practiced on him, would be a thing that he would integrate into his thinking and evaluating the patient.  In effect, this man appears to be a liar and I have to evaluate this with other facts I know about.
A  And if you are asking me, have I entertained that possibility, yes, I've entertained that possibility.
Q  And is it fair to say that you did not conclude that you were hearing from Captain MacDonald the kind of recitation of events of February 17th that caused you to conclude that he was, you know, largely contriving the story he told?
A  No, I have said to him, well to you, and to others, that I consider it a very real possibility that his memory of the events of February 16th and 17th are reconstructed.  I can elaborate as to how I came to that idea, but I --
Q  I would appreciate perhaps a definition or clarification of reconstruction.  
A  I'm trying to avoid the connotation of contrive or fabricated.
Q  For that -- for my purpose, that makes it clear.  Why would that process take place, the reconstruction, recollection in the MacDonald situation?
A  Do you want me to speculate again?
Q  Well, could it be in the realm of speculation, or is there any more substantial basis?

COL ROCK:  Excuse me, Mr. Segal.  Doctor Bailey, if I understood you, you are stating, basically, that you think that it was not a contrived story of his recollection of the events of the 17th.  Is that correct?

WITNESS:  That's correct, yes, sir.

COL ROCK:  Now counselor, I don't see, with all these other suppositions and hypotheses of what the good doctor would have done had it been otherwise adds anything at all to this hearing, to my understanding.

MR. SEGAL:  I am in agreement, sir.

COL ROCK:  I prefer you to move to some other area.

Q  You were asked some questions before, Colonel Bailey, by Captain Somers, on the issue of Captain MacDonald's feelings about his masculinity.  In that regard, were his feelings about his own masculinity appropriate ones within normal limits?
A  Would you define normal?
Q  I'll ask you, you know, you are never quite sure how you might use it.  Let me put it this way -- are they appropriate ones?
A  Are they common in our culture?
Q  Yes, I think that would be -- yes.
A  Very.
Q  You answer that way because attitudes for masculinity are partially culturally developed and induced in us?
A  Yes, sir.

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

COL ROCK:  Counsel for the government?

CPT SOMERS:  Yes, sir.

Questions by CPT SOMERS:
Q  As I understand your testimony, doctor, Doctor Rappapor was in agreement with you and your staff that the question of probability of the commission of an offense, particularly the probability of Captain MacDonald's commission of this offense, is one not beyond any one person's psychiatric skill, but beyond the skill of psychiatry as a science today.  Is that what you are saying?
A  I don't think either I or Doctor Rappapor pretends to be able to set that kind of standard.
     I said I personally feel that it is beyond my limits as an expert.  Doctor Rappapor said that he felt in agreement that it was beyond his limits as an expert to get into that area.
Q  I see.  Must a man always be abnormal or dangerously inclined to be capable of committing a violent act toward his family or wouldn't circumstances make it possible for a man who was thus inclined to commit such an act?  That's a two-part question.

COL ROCK:  For my benefit, let's rephrase the first part and stop there.  I think for the doctor's benefit too.

CPT SOMERS:  All right, sir, I'll put it in two questions.

Q  In your opinion and as a general consideration, would you say that a man must always be abnormal or dangerously inclined to ever be capable of committing a violent act toward his family?
A  I think, again, it might be useful to refer back to paragraph 1 and read about dangerousness that Doctor Heller talked about.  The issue in terms of abnormality is very difficult to deal with.  Most usually the way we deal with it is in terms of presence or absence of psychiatric disease.  The first word of your question is "must" and I don't -- I would have to say -- feel qualified to answer that question about the "must" part, because in my own research of literature in terms of crimes of violence, although a majority of these cases result in some diagnosis or other, it's interesting that most of the time it's after the fact, and there is always a section of significant percentage in which a diagnosis is not made.
Q  By that you mean a diagnosis of mental disease, defect or derangement?
A  Correct.
Q  If I understand some of the language that you have read from Doctor Heller, he is saying, is he not, that we are all capable of violence under proper circumstances?
A  I think he is saying that, yes.
Q  Does Captain MacDonald's memory of the evening of the 17th seem entirely satisfactory to you?
A  I'm not sure what you mean by satisfactory.  I've said that I feel -- I have the rather strong impression that his memory of the 16th and 17th is reconstructed, which I guess we then say that I consider it highly possible that details or major or minor as to specifically what happened in the context of that time might well have been different from his presently stated, or most recently stated under testimony, memory of that time.  I think I mentioned in my evaluation that this in part is what lead me to the recommendation for amytal interview.
Q  Doctor, we have gone into some areas which you have labeled, yourself, speculation, or we have gone into some areas which call for your mixed personal and professional opinion, and I think probably that when you say that it is your impression that the relation by Captain MacDonald to you of the events of the evening of the 17th was not contrived, that in saying that you are not attempting to give us the impression that this is an infallible indicator to the truth or falsity of that story.  You are not attempting to say that, I am sure, are you, doctor?
A  I am not attempting to say that.
Q  Do you think, sir, in your own opinion that it is possible for any interviewer or evaluator to be sure that he is not being lied to?
A  If you are talking about sure, again you are talking about degrees.  I don't think any psychiatrist would pretend to have that infallible capacity to know whether he is being lied to or not.  I certainly don't.  I don't get into the area as a matter of fact, very often.  What I am concerned about is how data is presented to me by a given individual about himself or his set of circumstances.
Q  Your concern, then, is not always, perhaps not even mostly, with the correlation between what he said and the objective truth of what is being said?
A  Not concern in terms of is he lying or not.
Q  In what areas did you feel that Captain MacDonald was controlling, filtering his answers with respect to his relation of the events of the 17th?
A  I'm sorry if that connection was made.  I was trying to say that in other areas of my evaluation and interview I think and thought there were areas where he was controlling and filtering his responses.
Q  You mean other than the events of the 17th?
A  That's correct, sir.
Q  Could you tell me what those were?
A  Areas of relationship to Colette.  Areas of whether or not conflict had come up between them.  A rather consistent tendency to avoid use of words like "disagreement," "argument," "fight," et cetera.  Again, I'm not using control like it's a deceptive device, because I think Doctor MacDonald under that circumstance was quite aware that an awful lot of weight was being applied and he himself would apply weight as to how this was responded to.  In addition, he had the terrible consequences of the 17th to try to deal with.  It's a rather natural process for one to not be able to be objective in his discussion of relationship after such a thing.

CPT SOMERS:  No further questions.

MR. SEGAL:  I have one matter.

COL ROCK:  All right.

Questions by MR. SEGAL:
Q  Doctor Bailey, perhaps you could help us in regard to clarifying this one issue.  It is your opinion, I believe, if I am stating correctly, that you did not think the recitation by Captain MacDonald of the incidents of the 16th and 17th of February were contrived, but on the other hand, or perhaps in addition, however, you found that there were details, major or minor, in regard to that time that might be different from the way it happened.  Is that a roughly accurate summary of what you have said to us?
A  I didn't find that.  I had the impression.
Q  Could you perhaps indicate to us what the cause, what caused there to be a difference in details, even though the basic description of the events was not a contrived one, what was the process that caused that to come about?
A  Oh, the most common process is a very natural one that all of us human beings can experience when we've gone through something that is quite horrible to us.  We put it out of our minds.  We -- we may tend to deny it.  We may tend to restructure it somehow to make sense to us.  I'm talking about very natural processes.  I was impressed by information that he had not tried to sit down and outline for himself the specific events in time frame of that time until after apparently his -- the 6th of April.  I make nothing of that, except that it says to me -- well, I also, in talking with him, as well as in reading his own testimony, recognize that he was challenged about issues such as the existence of a given towel and its placement, or a bath mat, where he was forced to make a decision as to whether it was that way or wasn't that way.  When I say reconstructed that's what I mean.  I mean it is not a spontaneous relation of things as he specifically recalls them.
Q  Having to think it through, an act of thinking process in trying --
A  And expose facto have to make decisions about -- if you will note again, very frequently in his own testimony, I'm impressed that he responded, "It must have been this way because that's the way we usually did it."  "It must have been -- it might have been" that he had a drink, an after dinner drink, "because that's the way it usually happened."  "It must have been that Colette probably had an after dinner drink before going to bed, because that's the way she usually did it.  She may or may not have taken a Bendryl, because, again it was available."  Rather than a specific memory of events -- that's what I am trying to say.

MR. SEGAL:  I believe that clarifies it very much.  I have nothing further, Colonel Rock.

CPT SOMERS:  Sir, I have one more.

Questions by CPT SOMERS:
Q  Doctor Bailey, wouldn't this process of putting these horrible details out of one's mind be natural, whether the Captain had been a victim of them or had committed them?
A  They are equally possible, I think.

CPT SOMERS:  No further questions.

MR. SEGAL:  I have nothing further, sir.

COL ROCK:  I have two questions for the doctor.

Questions by COL ROCK:
Q  Referring again to page 3 of your testimony, the last sentence in paragraph 5a, it states, "With the regard of capability of hiding facts related to the acts charged, it is our opinion that this is possible."  Now later on in some testimony, you indicated, I believe, this statement which I have written down, and I want to again re-verify if I have put in my own words what I think you were saying.  You stated that there is no evidence that Captain MacDonald is trying to hide facts from you.  Is that basically true?
A  Yes, sir.
Q  Now my second question explores a new area.  In a visit to the MacDonald house I noticed that there are large collection of murder mysteries and so forth, and I fully recognize that many people read these, statesmen, lawyers and everybody does, for amusement, for interest, and other reasons.  Also there has been some testimony to the fact that there was a magazine which contained a reference to a rather bizarre murder in California.  On the other hand, there are many, many other volumes pertaining to college work and medical reading and so forth.  The witness -- the accused himself, I believe, has perhaps indicated that he was reading one of these mysteries that evening before going to bed.  In your deliberations, was this issue ever raised?  That is, what the doctor reads for his amusement or what he may read for his further education and this type thing?
A  Yes, sir, it was.
Q  Did you derive any significant facts from your pursuit of that line of questioning?
A  In terms of the facts as he relates them to me, to my team, he describes reading mysteries as a -- an outlet, a pleasure; and, do I attach any significance to this in terms of this case?  No, sir, I don't.

COL ROCK:  All right, thank you.  I have no further questions.  Does either counsel?

MR. SEGAL:  No, sir, I do not.

CPT SOMERS:  None by the government, sir.

COL ROCK:  Doctor Bailey, did you by any chance bring with you any resume of your educational achievements or other matter that might be presented as evidence before this hearing?

WITNESS:  Yes, sir, I have.

COL ROCK:  And what is that, sir?

WITNESS:  This is a typed copy of my curriculum, which I also will update slightly in terms of additional licensure, which I can offer if it is useful.

COL ROCK:  Subject to any objection by either counsel I would like to introduce that as evidence as we have done previously with expert witnesses, and that will be Investigating Officer's evidence R-2.  For the purpose of both counsel we will have this reproduced and present you a copy thereof.  What other states are you licensed in, Doctor?

WITNESS:  I am licensed in Illinois, Maryland, Virginia, and the District of Columbia.

COL ROCK:  Doctor Bailey, 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 that?

WITNESS:  Yes, sir, I do.

COL ROCK:  Sir, you are excused and I appreciate your testimony.

COL ROCK:  This hearing will reconvene at 1330 hours.

(The hearing recessed at 1152 hours, 10 September 1970.)