Article 32 Hearing
September 11, 1970
Franz Grebner (CW3 CID Chief Investigator)
(The hearing reopened at 0858 hours, 11 September.)
COL ROCK: This hearing will come to order. Let the record reflect that all parties that were present at the recess are currently in the hearing room. Mr. Grebner, I again remind you that you are under oath. Have you, sir, since yesterday been able to ascertain any more clearly the dates that were in question yesterday?
WITNESS: Yes, sir, I recall some things.
COL ROCK: Please explain.
WITNESS: The report was received on the 30th of July in our office. On an unknown date --
COL ROCK: Excuse me. 30 July by whom?
WITNESS: By the evidence custodian, it was given to him.
COL ROCK: Proceed.
WITNESS: And on an unknown date, probably not more than three days later, it was given to me, on probably say, Monday, and I think was the 3rd.
COL ROCK: Do you have any additional facts you wish to --
WITNESS: From that standpoint on I must accept full responsibility for the report not being given to anyone. I was not aware of its contents because I did not read it. I caused it to be filed, because I was pressed on other matters.
COL ROCK: Proceed.
WITNESS: On about 17 July I was asked if I had the report and I said that I couldn't recall seeing it.
MR. SEGAL: 17 July?
WITNESS: I mean August.
COL ROCK: Do you know by whom you were asked?
WITNESS: Yes, by Lieutenant Ossman. But I did then check the files of the lab reports. In the interim I believe that Lieutenant Ossman called the lab and they said that they had sent it to me, and about this time I did find it, and he called me to remind me that I had received it, and at this time I believe I probably told him verbally what the conclusions were in that lab report. At that time this hearing was in recess. I did not release the report to him because -- because it was in recess. On the 25th of August is when Colonel Ingram called me, not in the middle of August. He has a memo for record on this. I had a contact with him. And at this time he instructed me to keep the report in my possession until we got a clarification on it.
COL ROCK: All right. Any further information?
WITNESS: No, sir. I have none.
COL ROCK: Mr. Segal?
Questions by MR. SEGAL:
Q Mr. Grebner, may I ask why you did not release the report after you finally realized you had it your file?
A Release it to whom, sir?
Q To the government's attorney?
A They were in Washington, D.C. at that time.
Q Do you know of any way or can you perhaps enlighten us in any way as to how Lieutenant Michael Malley, until recently assistant defense counsel, and Major Pedar Wold of the Staff Judge Advocate's Office, knew about the laboratory conclusions on August the 5th of 1970?
A They may have contacted someone at Fort Gordon.
Q Now Mr. Grebner, isn't it fair to say that Fort Gordon is not in the position of releasing to persons other than those who make a request for a laboratory report, the information from that report?
A I can't answer your question, I'm sorry.
CPT SOMERS: I object to proceeding along this line any further. He's asking the man how somebody else knows something which is not a question which he can legitimately answer.
CPT BEALE: Sustained.
Q Have you ever in your experience, prior to this case, been aware of the laboratory releasing the results to any persons other than the CID or detachment requesting the lab report?
A I think you have a tape recording of an interview of a fingerprint expert down there.
Q You are aware that that was done with special arrangements with the investigating officer that that came about?
A I am not aware of how he got it, sir.
Q Is that the only example you can think of?
A Offhand, yes.
Q Do I gather that as far as you can surmise, Lieutenant Malley on one hand and Major Wold on the other probably had to make a call to the laboratory?
A I don't know, sir.
CPT SOMERS: I object to that.
CPT BEALE: Again, it is sustained. Move to another area.
Q Now I believe there was some question yesterday we left with you as to whether Mr. Ivory or Mr. Shaw was in contact with the laboratory about the different understanding that they had as to what the laboratory conclusion would be, or how it would be phrased as opposed to the way it appeared in the report of July the 29th.
A Again, we were talking yesterday as what possibly could have happened. I don't know that. I talked to Mr. Ivory, he did not know that I had the report until he came back from Washington, so it wasn't Mr. Ivory. Mr. Shaw I was not able to contact, but he was leaving about that time for transfer, and I doubt that he would have known at all, sir.
Q You doubt what, sir?
A I doubt that he would have known that I had the report. I am the one that caused it to be filed.
Q I'm sorry, but I've not made myself clear, as I should, to you Mr. Grebner. As I indicated, there was testimony yesterday from you that you, Mr. Ivory, or Mr. Shaw or all of you were of the belief that the lab said that there was some points of dissimilarity and some points of similarity.
A I had heard this, yes, sir.
CPT SOMERS: I think that I must object again. Mr. Grebner has said that he does not know what Mr. Shaw may have known, and that's what we are getting into.
MR. SEGAL: I'm not asking what Mr. Shaw may have known. I thought I was rather clear at the conclusion of yesterday's proceedings that one of the -- I made a specific statement to the investigating officer, a suggestion that it may appropriate, to which the response of the investigating officer in Mr. Grebner's presence was that he was to seek all possible information about this particular situation. Now I certainly understood that general direction to find out the answers to the questions which was treated vaguely by Mr. Grebner, which he didn't have personal knowledge when he first came to us. I just want to find out whether he did not apprehend that to have been the request that we put to him, so that we could clarify this issue. I think it is important to understand why the letter of August 25th went out, why the -- did in fact the CID have verbal information which it passed on to other people, and we ought to know whether they were using this information, albeit that someone may have mis-filed the written report, since this is the area of inquiry that we are concerned about this morning.
CPT SOMERS: Mr. Grebner has testified what he has done with checking with Mr. Ivory and what he attempted to do in checking with Mr. Shaw. Now, you will not get from Mr. Grebner the answer with respect to the latter; the letter is signed by myself, not by Mr. Grebner or by any member of the CID, and I object to attempting to find out from Mr. Grebner what he has already said he does not know.
COL ROCK: Mr. Grebner, we will excuse you temporarily while we have a little session here.
(The witness departed the hearing room.)
COL ROCK: The matter that you brought up initially that caused me to allow this particular subject to the pursued, Mr. Segal, was your implied contention that apparently the government was not satisfied with the original lab report, and was therefore trying to acquire additional information. It is apparent that the government was not satisfied with the word "dissimilar" and there does seem to be some evidence that in other instances, aside from this particular report, different descriptions have been given on hairs, so it is conceivable that the government's attorneys would be concerned about the use of one word for the description.
Mr. Grebner has already admitted that he was in error in the cavalier way that he approached this particular document. It appears that the government attorneys did have one of their assistants inquire and logically so as to where the report was, and that apparently through the efforts of Lieutenant Ossman this information did come to the attention of Captain Somers, and I would assume that Captain Somers, then, being concerned about the information, once it came to his formal attention on return from Washington, then, in fact, did write the letter which he has so stated and that letter is in government evidence. I think we have answered here principally, at least in my own mind, as to the sequence of events that have occurred and there has been a gross error in that none of us received this information when we should have. What further line of inquiry are you attempting to pursue, sir?
MR. SEGAL: Colonel Rock, I am of the opinion that we have not full word given to us on the change of language in the report; the report why I think that's so is that one merely needs to compare the report in which the hairs of Mr. Shaw and two other investigators were compared and look at the language of Mr. Browning is quite similar to the language of 7-29, and that no one thought they need to clarify that. But what really troubles me are the following unanswered facts, and I think they relate to the question of whether there was an attempt to manipulate or to cause a certain report to come out which the laboratory declined to do.
For instance, I represent to you that we have personal knowledge that Major Wold and Lieutenant Malley on August the 5th were told what the laboratory reports said, and I was told subsequently the same day or the next day by telephone as to what the lab reports were. So that somebody here at Fort Bragg in fact knew that the report existed was not any longer in the laboratory formulation state, but had been completed. But secondly, sir that we were making inquiries on every single day from August the 10th through the 16th, when this hearing was in progress, about the existence of that hair lab report, and we were told through those days the response by the government that it still wasn't here. Now that is not, sir -- we are being misled as to when an inquiry was made and whether the person who answered the inquiry has now related to us correctly when he made the check of his own files, and according to Mr. Grebner this morning, on August the 27th, after this inquiry had ended; and we are no longer here to ask about the report, that's the first time that Lieutenant Ossman contacted him, and shortly thereafter he located the report. What happened from the 10th to the 16th when we were here on a daily basis, requesting the existence of the report, being told it was being checked for, it was being looked for, all the time knowing that on the 5th of August, Major Wold and Lieutenant Malley had been told the results of that report. It seems to me again that Captain Somers was telling Captain Douthat on August the 22nd in Washington the results of the report and that's prior to his receiving on the telephone the quotation statement which he then used in his letter of August the 25th. So again, the information on the report was being circulated. It does not satisfy me that we have had the full answer as to why this report was here. I do not accept the representation by the witness in my own mind as being complete when he says that he just caused it to be filed. I would surmise, sir, and suggest that what I really would to find out is whether or not Mr. Shaw was not in the process of quarreling with the laboratory about their language and saying well, if you find points of similarity and dissimilarity, why don't you say that instead of saying it is dissimilar.
This defies logic. If you are asked to say whether this fingerprint belongs to this person, they have ten points of comparison. If it doesn't have it, it has two or three that are the same and seven that are not, you say it's not that fingerprint. You don't say it has points of similarity and dissimilarity, because the only way you can say it has similarity is to say there is ten points or more in comparison. The same with the hair. Now this is just a clear attempt to obscure the words by the laboratory and I think we ought to know who is responsible for an attempt to make less clear what the laboratory --
COL ROCK: It occurs to me then, Mr. Segal, that we are going to have to hold these proceedings in abeyance, because I would not be satisfied unless I had all the principals here to answer those questions. This then means getting Mr. Shaw, Major Wold -- probably it is not expedient now to get your former associate attorney here, though we might be able to get him telephonically -- but it would be necessary then to hold these proceedings in abeyance until we can gather these witnesses to testify, because certainly Mr. Grebner, apparently, doesn't know any more than what he has stated this morning, between the dates of the 3rd and 17th of August, I believe it is. It is conceivable that other people could have released this information without his knowledge and it would seem incumbent upon me to call these other witnesses to answer your questions if we pursue this in that line.
CPT SOMERS: May I respond, sir?
COL ROCK: Yes, please.
CPT SOMERS: I can shed some light on some of the things he raised. I would point out that I don't think it is the object of this hearing necessarily to satisfy Mr. Segal one way or the other. However, if on 5 August Lieutenant Malley had some kind of information with respect to this report. Lieutenant Malley and the defense are uniquely in a position to tell us the source of this information. I can say that Major Wold contacted me subsequent to my return from Washington wanting to know the results of that report. I would conclude from that that he did not know, up to that point, the results of that report. Secondly, I did, during the week of the hearing talk to Mr. Ivory, who did not know that the report was in.
COL ROCK: What period of time was that?
CPT SOMERS: I do not remember, sir. It was during the hearing. But my principal source of information during the hearing was the laboratory and at that time, Miss Glisson, who has done the work, was not there, and I spoke to Mr. Browning who led me to believe that the work was still in progress because of this apparent unsureness. And he is the one who explained to me that there was some work being done on it, which at that point left me with no conclusion one way or another as to what they were going to finally reach. Now Lieutenant Ossman was called by Lieutenant Malley, he tells me, while Captain Thompson and I were in Washington, and apparently at that time from his call Lieutenant Malley did not now what the contents of the report were. I told Captain Douthat what I understood to be the contents of the report on the 22nd from the information which I had received from the lab, and I told him this because it seemed that he ought to know where it stood, even though I didn't know what the final results were going to be. Now, on my return and on discovering what the report did say, I personally initiated a request to the lab to show what this word meant, and I sent the letter which is in evidence, and I got the response which is also in evidence, and that, insofar as I can tell, is the source of the question to the lab and that is the response, and there was no more pressure on the lab than the question and response. I think we've got all the information that the investigating officer needs to answer any question relevant to this hearing, and I suggest to you, sir that further postponement of this hearing, to go into issues that are decidedly collateral and which have really no bearing on this hearing one way or another is unwarranted. This hearing has lasted long enough, and should proceed to its natural and normal close without pursuing further an issue which I submit cannot add materially to the necessary conclusions of the investigating officer one way or the other, and I object, sir, to proceeding further and request that we close today.
COL ROCK: This hearing will be recesses temporarily.
(The hearing recessed at 0921 hours, 11 September 1970.)
(The hearing reopened at 0938 hours, 11 September 1970.)
COL ROCK: This hearing will come to order. Let the record reflect that those parties who were in attendance at the recess are currently in the hearing room, and the witness, Mr. Grebner, is again seated. Sir, I remind you that you are under oath. Proceed, counselor.
Questions by MR. SEGAL:
Q Mr. Grebner, you became aware, did you not, that these proceedings were being held the week of August the 10th and 15th, 1970?
A Yes, sir.
Q And may I ask how you knew that these proceedings were going on at that time?
A I was told.
Q You were told. Now to your recollection, did not any person connected with government counsel contact you, or any other person contact you and ask you, during that week of the proceeding session, where was the lab report on the hair?
A Not that I recall.
Q Did you see Mr. Shaw at all during that period of time?
A Yes, sir, I did.
Q Did at any time you make any inquiries of Mr. Shaw as to the status of the hair report?
A Not that I recall.
Q Mr. Shaw was the person who seemed to be most frequently in contact with the laboratory about the various reports, was he not?
A More than I was, yes.
Q And more than Mr. Ivory too, I would think it would be fair to say?
A I didn't count the times that they called the laboratory.
Q Was there any reason why Mr. Shaw was not asked whether all the reports for the MacDonald case were made available for government's counsel so that they could finish their case?
Q Was there any reason why he wasn't asked to establish the status of the lab reports?
Q Did Mr. Shaw or Mr. Ivory indicate to you that they were having during that week, requests made to them by the prosecution or government counsel for the lab reports on the hair?
A Would you repeat?
Q Did either Mr. Shaw or Mr. Ivory tell you that the government was asking them to get the lab reports on the hair during the week of August 10th through the 15th?
A I was very busy during that time. I do not recall.
Q Do you know, Mr. Grebner, whether the report on the candles and wax in the MacDonald house is in your file now?
CPT SOMERS: I object to that. That's completely outside the scope of questioning.
MR. SEGAL: I have nothing further.
Questions by COL ROCK:
Q Mr. Grebner, for my own information, do you know whether the report on the candle wax, that is the second batch that I understood was sent to Fort Gordon lab, whether a report on that is in your office?
A Sir, I would have to check. I do not know.
COL ROCK: I would appreciate it, if upon completion of the testimony this morning, when you return to your office, would you make a good search to determine if it available, and if so, give it to the government.
WITNESS: I will do so, sir.
COL ROCK: Because the time is long since past when evidence should be here before this hearing.
Does the government have any further questions in this connection?
CPT SOMERS: No, sir.
COL ROCK: Now, in my letter to the government on 26 August requesting certain evidence, I requested that the government again produce the accused's pajama top and pocket. I believe you are now ready to do that while Mr. Grebner is here.
CPT SOMERS: Let the record reflect that I handed these items to the investigating officer.
(The investigating officer examined G-74 and G-75.)
COL ROCK: I have finished my examination of the two items in question. Does counsel for the accused desire to examine them any further?
MR. SEGAL: I have no need.
COL ROCK: At this time I would like to see the pajama top and bottom of Colette MacDonald.
CPT SOMERS: Let the record reflect that I present the investigating officer with the items he's requested.
COL ROCK: Mr. Segal, do you have any objection to these being accepted into evidence, that is, the pajama top and bottom, respectively, of Colette MacDonald?
MR. SEGAL: No, sir.
COL ROCK: Which she wore on the night of 17 February.
MR. SEGAL: I have no objection.
COL ROCK: Exhibit R-7 is the pajama top of Colette MacDonald found on her body on the morning of 17 February. R-8 is pajama bottom of Colette MacDonald found on her body on the morning of 17 February.
(The investigating officer examined R-7 and R-8.)
COL ROCK: Does counsel for the accused desire to inspect either garment?
MR. SEGAL: No, sir.
COL ROCK: And finally I would like to see the top sheet and the multi-colored bedspread from the master bedroom of the MacDonald residence.
CPT SOMERS: Let the record reflect that I am handing those items to the investigating officer.
(The investigating officer examined both items.)
COL ROCK: Exhibit R-9, blue top sheet from master bedroom bed. R-10, multi-colored bedspread from master bedroom. These items will be returned to the laboratory and a description thereof substituted for the actual items for purposes of the record. Mr. Grebner, you are advised that you will discuss your testimony with no person other than counsel for the government or counsel for the accused. You are permanently excused, sir.
(The witness saluted the 10 and departed the hearing room.)