Article 32 Hearing
Volume 17

September 10, 1970

Franz Grebner (CW3 CID Chief Investigator)

(The hearing reopened at 1505 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. Please call Mr. Grebner to the witness stand.

(CWO Franz J. Grebner was called as a witness, was reminded of his prior oath, and testified as follows.)

Questions by COL ROCK:
Q  Mr. Grebner, I hand you herewith Government Exhibit 107. Can you identify this document, after you have had a chance to read it over?
A  Yes, sir, it is carbon copy of a lab report from the CID lab at Fort Gordon relative to comparison of hair samples.
Q  Now after the hair samples were taken from Captain MacDonald, was it your desire as the Detachment Commander of the Fort Bragg branch of the CID to expedite the lab work and get this report back as soon as possible?
A  Right, it was.
Q  Did you personally attempt to expedite this work in any way?
A  No, sir, I did not.
Q  Who did you have, or in what fashion was -- were efforts made to expedite the lab's work or to call their attention or to call their attention to the fact that you did want to have it expedited?
A  I instructed that it be packaged and sent immediately in the next mail, which was the following morning, to Fort Gordon, and instructed -- I believe it was Mr. Shaw or Mr. Ivory, whichever -- to call and tell them that this was of utmost interest as the other evidence has been in this instance.
Q  Were you aware that I wanted this information expeditiously?
A  Yes, sir.
Q  How did you go about, or let's say, when you were aware of our interest in expediting it, did you make further attempts to call the lab to apprise them of the fact?
A  No, sir, because I assumed that you would be interested. I did not hear directly that you were interested, as I recall now, but I assumed that everyone was interested, and I had the one call made.
Q  But no one personally told you that I was trying to get these hair sample --
A  No.
Q  Reports?
A  No, sir.
Q  Do you have knowledge of the date the material was sent to the lab?
A  It would have been the next day, sir. This was my instructions.
Q  And do you know by looking at a calendar or other device what date that was?
A  What date was it that -- I don't recall the exact date that we went -- that we took the hair exemplars.
Q  Would providing you a calendar help refresh your memory, or can --
A  Yes, sir, I recall now.
Q  What date was it?
A  It was on the same date. It was packaged and hand-carried to the laboratory. Hand-carried and arrived the same evening.
Q  But do you know what date that was?
A  That would have been the 20th of August -- of July.
Q  Packaged and forwarded the same day by messenger?
A  Yes, sir. It was driven down.
Q  Now what date did you receive the lab report of that hair sample?
A  It was mailed from Fort Gordon on the 29th of July. It was probably -- could have been received in my office by the registered mail clerk either on -- well, possibly the evening of the 30th or the 31st. Again, it may not have arrived until -- it would have been Monday, which would be the 3rd.
Q  Correct.
A  Now what happens then is that he retains that in the safe until he is able to contact the evidence custodian.
Q  He who?
A  The mail clerk. This may be two or three days even before they might get together. It could be that long. Then he -- the evidence custodian would have signed for it and it would have been placed in the evidence room, and in this particular investigation, it would have been retained there until the evidence custodian could get with me to turn it over personally. And this again could have taken anywhere from one to three days.
Q  Would you give the early date -- strike that. Do you know what specific date this report came to your attention that is you were able to read it?
A  I could only say that it probably, the earliest would be that Thursday, the 6th or the 7th, or may have been as late as the 10th.
Q  Did you receive the original copy of the report?
A  Yes, sir, I did.
Q  What date did you notify a representative of counsel for the government in this MacDonald hearing?
A  I notified Captain Somers sometime after he returned from Washington. He departed on the 17th, I believe. They were there for five days. It could have been the 29th; the 30th was on a Monday.
Q  Would you like to refresh your memory with a calendar?

(A calendar was handed to the witness.)
A  Probably, sir, on or about the 24th of August. At this time, sir. I might add that I advised him that I had the report but I wasn't able to release it to him per instructions of the Third Army.
Q  Why is that, Mr. Grebner?
A  Apparently there was some question as to the, some of the wording, that the work or wording of the technician was not clear and they couldn't get clarification from her because she was either on leave or off testifying somewhere and they had to wait until she returned.
Q  Now when you say you could not release it to Captain Somers, when was this Third Army hold on releasing this report to Captain Somers lifted?
A  I received that in a call from Colonel Ingram on either the 12th or 13th of August.

MR. SEGAL:  I did not hear the name, sir.

WITNESS:  Colonel Ingram.

Q  What is his position?
A  He's the Deputy Commander of the 3d Criminal Investigation Group.
Q  Is that Lieutenant Colonel?
A  That is Lieutenant Colonel, and I believe he had been instructed by the Third Army Provost Marshal.
Q  Now at the time the report was released, was it released in the form of Exhibit 107 to Captain Somers?
A  They sent the addendum to it.
Q  Was Exhibit 107 released to Captain Somers in any fashion prior to 25 August?
A  No, sir, I -- you mean in a burnt copy or anything?
Q  A burned copy or by telephonic conversation?
A  Verbally on the 24th I may have told him what this statement was, or if it was on the 24th. It could have been earlier.
Q  Now I believe you testified just now that Lieutenant Colonel Ingram, Deputy CO of the 3d CID group said you could release this information on the 12 or 13 August?
A  No, that I could not.
Q  Oh, you could not release it.
A  That I would retain it until the clarification was received from Mrs. Glisson.
Q  Did you release this report in any fashion, that is verbally or in any written or burned copy to captain Somers between the dates that Colonel Ingram called you?
A  No, sir, I didn't.
Q  What date was the information released to Captain Somers, that is both reports? Do you recall? If you would like to, I will --
A  I think that one is dated the 3d, sir.
Q  Let me pass to you Government Exhibit 108, which is the addendum thereto, dated 2 September.
A  Probably last Friday, sir, the 4th.
Q  I hand you herewith Government Exhibit G-109. Would you please compare the statement in that letter as compared to the statement on the second page of Government Exhibit 107 and tell me if they are similar?
A  Yes, sir, they are similar.
Q  Do you know how Captain Somers received that information, if it was not released by Third Army directive?
A  As I said I may have released it to him verbally but not the report. I was told to retain the report.
Q  To retain the report?
A  Yes, sir.
Q  But to you, that didn't mean you couldn't release the information?
A  At first it did, sir, and then I felt that -- he wanted to know what it did say, and so I believe I did tell him on the telephone, sir, on the 24th.
Q  Now when Colonel Ingram indicated to you that the Government Exhibit 107 should be held up for clarification, did Colonel Ingram indicate what kind of clarification he was trying to obtain?
A  I don't know that he was trying, sir, him personally. When I read the report I had been told verbally, not by the laboratory, but by one of the investigators, which would have been Mr. Shaw or Mr. Ivory, different than appears in the exhibit dated the 29th. That there was some similarities and some dissimilarities, so there was a question in my mind at that point, and Mr. Shaw, of course, and Mr. Ivory both saw the report. Mr. Shaw may have called the laboratory himself and asked about it, but he never did tell me if he did or not, but there was an inquiry made apparently to Colonel Ingram as to some problem in understanding this as compared to what the verbal report that had been received.
Q  Well, do you think then, is it fair to say that basically the reason Third Army agreed to hold up the first report was as a result of some inquiry here from Fort Bragg?
A  I don't know. I didn't make the inquiry, sir, to the laboratory, because, as I say, Mr. Shaw may have called there. I don't know.
Q  Would this not seem to be a rather important matter and one Mr. Shaw would have had to report to you on any decision that he apparently was making in your name on this matter?
A  I don't see any decision made. He was constantly in contact with the laboratory throughout this investigation, and talked about other lab reports that had been received, and often there are administrative errors in something as voluminous as this.
Q  Then this was considered, in light of your experience, to be an administrative-type error?
A  It could have been. This, we couldn't determine because Mrs. Glisson wasn't available, as I understood when I talked to Colonel Ingram.

COL ROCK:  I have no further questions. Does Captain Somers?

Questions by CPT SOMERS:
Q  Mr. Grebner, as I understand it, you don't know what inquiry caused this hold up. Is that right?
A  No, I do not.
Q  And you do not know that the inquiry was anything that came from Fort Bragg?
A  No, I do not.
Q  The chain of command involving the laboratory hooks up directly with the Continental Army Command, does it not?
A  That's right.
Q  Your chain of command, however, goes directly to Third Army, does it not?
A  That's true.

CPT SOMERS:  No further questions.

COL ROCK:  Counselor for the accused?

Questions by MR. SEGAL:
Q  Mr. Grebner, who else at Fort Bragg would have known what the laboratory findings were prior to the receipt of the report here?
A  Mr. Shaw, Mr. Ivory very possibly could have.
Q  Would anybody else besides those two persons?
A  No, I saw no reason to release it to anyone, other than myself, Mr. Shaw and Mr. Ivory.
Q  Is it your testimony here today that from the day the hair was sent down to the laboratory on the 20th of July until the custodian of this document finally showed it to you on August 10th or 12th --
A  Well, I say the latest would have been probably the 10th.
Q  You had no knowledge whatsoever of anyone from Fort Bragg calling the laboratory to find out what the results of this test were?
A  I'm sure that either Mr. Shaw or Mr. Ivory did, because they came in the office and probably mentioned it, I think at one time, that it was -- there were similar characteristics and dissimilar in the exemplars that we had submitted, so I am sure they did call the lab.
Q  Did either one of those gentlemen tell you that they were going to try and have the laboratory state their responses on some specific fashion, or put it in certain language?
A  No.
Q  Did they tell you anything else about the laboratory reports, other than what you are saying, that they were similar and dissimilar characteristics?
A  About this particular lab report?
Q  Yes, just the hair, please.
A  They didn't tell me anything, sir.
Q  And you didn't learn in any way or become aware through any source that Mr. Shaw or Mr. Ivory were having discussions about how the lab report would be couched, that is what language that would be used?
A  No.
Q  Have you ever had the experience before of Third Army calling you to tell you to hold up the release of a laboratory report to the prosecution in a court-martial proceeding or an Article 32 investigation?
A  Prosecution?
Q  Government counsel in an Article 32 proceeding or in a court-martial proceeding.
A  I can't think of a specific instance right now, during my tenure. Oh, I do, in one instance where there was a -- a handwriting analysis, and we at one time received information that they said that -- could have done it, they were certain, close enough to enough points that they could get the technician to testify and point out, although not enough to say he probably did it or he did it in handwriting analysis, and at that time I was not in charge; at that time I was working on the case and it was my case, and I was instructed by Colonel Sandsbark (phonetic) who was then group commander to retain the lab report until we got a clarification on what it really did mean by could have written.
Q  Does the Third Army Detachment commanders -- are they on the regular distribution for the reports that are sent out from Fort Gordon Crime Lab?
A  Would they get copies?
Q  Do they routinely, as part of the distribution of any report requested from any source, also send automatically a copy to Third Army?
A  No, they do not get it until we send it to them.
Q  Do you have any idea in this case how Colonel Ingram, whoever it might be, the superior, would come to have some knowledge about the way the lab was writing up the report on the hair of this case?
A  Only if there had been a question, and Mrs. Glisson wasn't there to answer it and they had to talk to another technician, and then by way of conversation between the 3d Group Commander and the Chief of the laboratory.
Q  Well the question that would be given to the 3d Group commander or to the deputy commander would come from whom? Someone here at Fort Bragg?
A  No, it could very possibly have gone from Bragg but that would have been myself. Normally, I talk to the Group Commander. But it may have been a conversation between the Chief of the lab and the Group Commander or the deputy commander. I don't know. I have no idea.
Q  Do I gather from that that the possible method for which this matter came to the attention of the Third Army, that someone here at Fort Gordon raised a question to the laboratory about the way Mrs. Glisson wrote her report, and the laboratory in turn discussed the matter with the group commander?
A  It could have happened, they are in communication with one another, and the group commander or the deputy commander could have asked the Captain that was then in charge what they had discovered down in the examination of the hairs during another conversation with him, and he may have said, well we are having a problem with the way the report was written and Mrs. Glisson is not here. We must wait until she comes back. At this time they called me and had taken it to the Third Army Provost Marshal, and he said hang onto the report until we get the clarification.
Q  Did you tell --
A  This is only supposition. I have no idea.
Q  Did you tell Colonel Ingram at the very time that you had this report in your hand that the Article 32 proceedings were actually being had on a day-to-day basis in that week in August, and there was some great urgency to have this here?
A  I think I told him that and that you also were going into a week recess, the following week.
Q  Now is there not someway that you can more precisely tell us when the lab report on the hair was actually receive here at Fort Bragg, other than --
A  The hair is still at the lab.
Q  The hair report.
A  No, I would -- there are so many pieces of paper that come across my desk in one day that I couldn't recall exactly when this report came. I can only give you an approximate date within two or three days.
Q  Well, let me ask you this. If you don't have any procedure for date stamping the receipt of reports?
A  Oh, yes, I can tell you the date it got here to Fort Bragg. It came to Fort Bragg on the 30th of July.
Q  And you know that from what source?
A  From the date stamped on the envelope. That's the date it arrived at Fort Bragg, and it was probably picked up the next morning, if it was morning or afternoon mail on the previous day. So that would have been the 31st, it would have been picked up by the mail clerk in either the morning or afternoon pick-up.
Q  And when the mail clerk put the report away for the custodian of evidence, didn't he make a record on his safe, or didn't the evidence custodian -- doesn't he have some records to show exactly when he came in possession?
A  The evidence custodian would not.
Q  Well, who would have?
A  We have a registry and receipt --
Q  This report came by registered mail. Is that right?
A  Right.
Q  And there is a registry receipt showing what? That the mail clerk picked it up?
A  Right. He signs for it at the post office.
Q  He then puts it in a safe of some sort, or a locked file?
A  In the mail room, he puts it in a safe, yes.
Q  And who is the evidence custodian that it would have been turned over to?
A  Mr. Blalock.
Q  And do you know when Mr. Blalock received it?
A  No, and he doesn't recall. I don't imagine -- he receives hundreds of pieces of evidence, and hundreds of reports come in.
Q  Well, you do have a chain of custody that you have to maintain of all evidence in an investigation?
A  Evidence, yes, but we don't maintain a chain of custody of lab reports.
Q  Now can you give us any clarification as to what was happening to the report between the 31st of July, when the latest report that you have on this report at your headquarters, and the date in August when you say you received the call from Colonel Ingram, which was the 15th of August?
A  As I say, I don't know how soon the mail clerk was able to turn it over to the evidence custodian. He's next to me, probably the most busy man in the office, so he may not have gotten together with him to turn it over to him. So it could have been two days. It could have been three days. It has been that long that I know of personally. At the time he gave it to Mr. Blalock he would sign for it, and then it would remain in the evidence room until he gave it to me personally, and that would be when he could catch me.
Q  You did advise Mr. Blalock, did you not, that the report on the hair examination was a matter of some obviously great concern to the people involved in this article 32 investigation?
A  Did I advise him? He knows that all reports are of concern, and he expedites them as soon as possible.
Q  So it would have priority over ordinary matters. Would it not?
A  He, as I say, he would get it to me just as fast as he could.
Q  And under that assumption that he would get it to you as fast as he could, what is your best estimation of when you received the report then?
A  I would say anywhere from the middle of the week probably to the 10th.
Q  It could have been any one of those dates. Exactly what I was doing -- I may not have been in the office most of the time.
Q  When you say the middle of the week, you are talking about from anytime between the 31st of July --
A  No, no, the 31st of July, as I recall was a Friday. Yes, was a Friday. If it came in the afternoon mail, then if Mr. Blalock were testifying in court, he would probably -- the mail clerk wouldn't have an opportunity until Monday, and if he went to court again on Monday morning --
Q  Would you have a way of checking if Mr. Blalock was in court on Monday morning?
A  I imagine you could check with the courts-martial they were having then. I don't know if he was there. He may not have been in the office. The mail clerk may have looked for him once in the morning and not looked for him again until the afternoon or until the following day.
Q  Mr. Grebner, to be perfectly candid, couldn't you count on the fingers of one hand the number of times Mr. Blalock has been in court in the past year, twelve months, sir?

CPT SOMERS:  I object. I think Mr. Grebner has answered these questions as best he can as to the time intervals, and I think we now serve no purpose by keeping at this.

MR. SEGAL:  Sir, I do think that it is inadequate to give us unprecise answers, when, in fact, I think the simplest of inquiries could have been made available to us the specific answers we do need. There is the signed receipt. There is a dated envelope which we could have had in the beginning. There is Mr. Blalock who could very simply tell us where he was, or tell Mr. Grebner, and so I think it is really hardly inappropriate, and if we take time of this inquiry to go into the subject, and then allow it to somehow be glossed in the sense that we are dealing with generalities. I'm very much troubled by our inability to pin down why an approximately twelve to fourteen days span elapsed between the date that a mail clerk picked up the document and before the -- one of the only three or four responsible officials for it became aware of its existence. I do not think that meets the standards that this investigation has set and the standards that must apply. Obviously a document like this has to have some high priority. I do not believe that our investigation or any investigation accepts that as an appropriate way of proceeding, and perhaps we are misjudging what happened because we are not being given the precise information and we could more fairly pass on and evaluate what's happened if we can pin down with a little more specificity these things. As I say, I am very much interested in, for instance, his explanation about Mr. Blalock's activities. We have some awareness of what his work is, and I could be very surprised if there's any slightest likelihood a single proceeding was going on at that time at this base that required Mr. Blalock's attendance, as he is very seldom involved in those proceedings, and therefore I'd ask Mr. Grebner to search his mind again, or perhaps to inquire of Mr. Blalock what he was doing, or why he was hard to find, if he was at all. Mr. Grebner can look at his own calendar and tell us what -- was he really that unavailable, or perhaps did he get the records a little bit earlier than he thinks he did.

CPT SOMERS:  Sir, I think the general timing on what happened to this report is before this hearing now. It is not relevant to anything that is in issue here, how long this report was in, who got it when, and I recognize that we've gone into it because it is a matter of some concern to the investigating officer what the timing has been. But I think that's clear now. I also think it's clear that the report is here and all parties have the report, and therefore once we have established a time span and the general reasons as best we can from this witness, then there is no point in pursuing it. And in passing, I would like to state that I have personally seen Mr. Blalock up to testify for courts-martial in excess of three times in the last two weeks, and know for a fact that the evidence custodian is required to testify in a good third to half of the contested court cases on this post. So that the representations of the defense on that score are not true.

COL ROCK:  Mr. Grebner, we will recess this hearing until 0830 in the morning. I would like for you to try to determine what records and/or other means you can determine as accurately as possible, the date of the receipt by your evidence room of the particular document, and from Mr. Blalock and your own recollection, by checking your calendar activities, pad or otherwise, when it was more probable that you had this document delivered to you. The things that have been discussed so far as to reasons for the delay all lean towards the side of the maximum delay. If we examine it from the standpoint of you got it as soon as possible, then it would appear to be certainly no later than, I would say, three -- it would be as early as perhaps 3 or 4 August, so there is a considerable span of time here and this is something I am quite interested in. So I would like for you to contact Mr. Blalock and any other records and so forth that you have available to you, to try to determine specifically as best as you can the date that you did receive the report.

MR. SEGAL:  Colonel Rock, would it be appropriate to have Mr. Grebner perhaps also talk with Mr. Shaw and Mr. Ivory as to whether either one of them contacted the laboratory about the operative language, if they could indicate they contacted the laboratory in this regard?

COL ROCK:  Well, certainly any additional information that you have on the particular matter at hand because this is something I am trying to resolve based on the fact that I have been inquiring for a period of time about this report, and it did not come into the hands of the investigating officer until quite recently. I hope there are good and sufficient reasons, but I want to try to tie this down as accurately as I can. In the time available between now and 0830 in the morning, do you think you can reasonably do this?

WITNESS:  I will get you what information I can, sir.

COL ROCK:  Fine, and I will hold then in abeyance this evidence until this other matter has been resolved. This hearing will be recessed until 0830 in the morning.

(The hearing recessed at 1545 hours, 10 September 1970.)