Article 32 Hearing
Volume 18

September 11, 1970

Closing arguments by Captain Somers and Bernard Segal

(The hearing reopened at 1051 hours, 11 September 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that those parties that were present at the recess are currently in the hearing room.  Is the government counsel now ready to present his final argument?

CPT SOMERS:  Yes, sir.

COL ROCK:  Proceed, please.

CPT SOMERS:  Sir, as a preparatory remark, I'd like to remind the investigating officer that the standard by which the evidence in this hearing is a standard less than that of reasonable doubt.
     Now, to proceed from that point, I would like to break my argument down into two points.
     First, I would like to discuss points of evidence which are of great significance insofar as the government is concerned, and secondly, to give the investigating officer an idea as to how we conceive the events of the 16th and 17th to have taken place.
     There are some first obvious comments which can be made, the first of which would be that there is one person in the whole world who undisputedly had access to the house of Captain MacDonald on the night of the 16th and 17th and to the persons within it.  That person obviously is Captain MacDonald.  Whether there are other people is conjecture.  We know that Captain MacDonald was there.  
     Another obvious point, Captain MacDonald suffered injuries in whatever happened at the house probably in the morning hours of the 17th.  Compare the injuries that Captain MacDonald suffered to those that his family suffered.  His family, all the members, were killed in very brutal fashion.  They were killed and overkilled.  Captain MacDonald, on the other hand, suffered what by comparison can only be called superficial injuries.  Any independent third party who committed such a crime, and who fought with Captain MacDonald, would, I submit, sir, not have left Captain MacDonald in the condition he was found in.
     Now evidentiary points.  Consider first the telephones.  Each of the telephones in the house was handled by Captain MacDonald very soon in time to the arrival of the military police.  Now we know that one of the military policemen handled the phone in the bedroom, and smudges appear on that phone.  There are no fingerprints on that phone and there are no fingerprints on the phone in the kitchen, and there is no evidence whatever to show that the phone in the kitchen was tampered with in any way.  Why are there no fingerprints on the phone in the kitchen?  Is it possible that Captain MacDonald was wearing gloves at the time that he used those telephones?  Equally is it possible that Captain MacDonald wiped those phones so that his bloody fingerprints, if he were not wearing gloves, would not appear thereon?
     There are no fingerprints on the knife which Captain MacDonald reputedly removed from his wife's chest.  There are smudges on that knife.  Why smudges?  Why not fingerprints, since we know that Captain MacDonald's hands at that time were probably bloody?  We could perhaps expect plastic fingerprints, the kind which show without being dusted.  Certainly we could expect very clear fingerprints.  We don't have them.  Smudges.  Was Captain MacDonald wearing gloves when he pulled that knife from his wife's chest?
     Let's consider now the B blood in the kitchen.  There are some appreciable size spots of B blood in the kitchen near the cabinet.  Now the issue, of course, can be raised that B blood is B blood.  What's that mean?  B blood could belong to anyone having B blood who bled on that spot and that's true.  But we have no evidence that anyone in that house, other than the family, was dealt blows such that they would be bleeding; and if there was no one else in that house, only the members of the family would have been bleeding, and we submit that the B blood in the kitchen does indeed belong to Captain MacDonald.  Now why is it there near the cabinet?  Well I submit to you, sir, that its location near the cabinet is very handy to the location of surgical gloves, and I would point out also to you, sir, that not until Captain MacDonald testified at this hearing did he provide any sort of explanation for the appearance of that B blood in the kitchen.  In fact, when questioned on the 6th of April, Captain MacDonald, when given the opportunity to state that he went further into the kitchen than that telephone, refused to accept that opportunity, maintaining that he did not do so.  I suggest to you, sir, that since that time Captain MacDonald has seen a good reason to have gone in there.  Perhaps that accounts for his current explanation for the presence of that B blood.
     Now let's consider the offense itself.  Captain MacDonald, according to his story, was asleep on the couch.  He awakened to screams, screams of his family and found four people there in the living room with him.  Now what does this necessitate?  It means that four people, at least, entered his house while he was asleep; that they did something to his wife and Kimberly, because he remembers hearing them screaming; that they were able to get at least into the living room before he awoke or was aware of the presence of any alien presence in his house.  It's rather odd.  Further suppose that the surgical gloves which perhaps his assailants were wearing, or the kitchen gloves, the heavy rubber gloves that he describes that his assailants were wearing, were from his house.  Suppose that.  Then some of those assailants not only got all the way into the living room before they awoke him, they got into the kitchen.  They rummaged around in the kitchen and appeared in his living room at the foot of his couch.
     Now you've stood in that living room, sir.  It's small, it's cramped and it's crowded.  It is difficult in the extreme to even envisage the sort of struggle which Captain MacDonald says took place in that living room.  There just about isn't room for it to happen; but presuming that it did happen that way, we have Captain MacDonald coming awake and struggling with three male assailants, a struggle which lasted long enough for him to get up, be knocked down, get up and encounter a rain of blows, have his pajama top pulled over his head, and finally wind up in the hall.  Now it is of extreme significance that Pamela Kalin, sleeping directly above that living room, who says that she was not sleeping easily and who remembers being awakened by one sound, heard no part of a struggle in the living room.  She just didn't hear it.  Why didn't she hear it?  Well, sir, I submit to you that she didn't hear it because it didn't happen.
     Now, let's consider for a moment the coffee table in that living room.  The government does not really contend that that coffee table could not possibly have landed on its side.
     They do suggest to you, sir, that the odds of its landing on its side are very poor.  We also suggest, sir, that the odds of its landing on its side with the contents of the table underneath the edge of the table, neatly stacked, raises the probability of that happening naturally to practically zero.  Presume that it did land on its side, obviously knocked over during the struggle.  And we know, according to Captain MacDonald's story, that one of the assailants, the colored male -- or was it two colored males -- a colored male, at any rate, was standing between him and the coffee table.  Perhaps he knocked it over.  It's not a very stable coffee table on its side.  It's odd that the struggle that continued to take place there didn't displace it from its side to its top.
     It's also of interest to note that as a part of that scene we find Captain MacDonald's glasses, lenses down, lying on the floor.  On the front of those lenses is a speck of blood.
     That blood's not B blood.  Where did it come from?  Well, the defense would have you believe that that blood came from working in the emergency room the previous day, or two days before.  How likely is that?  I suggest to you, sir, that that blood got on those glasses while Captain MacDonald was in the process of committing the offenses with which he is charged here today.
     Consider some other things in that area.  The dining room was in good order.  Cards, which were standing up on the table, are still standing.  The china cabinet, which was full of glassware and china, and not too stable, seems still to be full of glass ware and china, undamaged.  Yet two or three feet from it, four or five feet, this terrible struggle took place.
     Now Captain MacDonald describes the struggle as no big thing.  It happened quickly, but it is a struggle between three people and himself, with obviously some force and some stomping around involved.  Why is that dining room in the condition that it's in?  That's very hard to explain.
     Captain MacDonald says that he was kneeling near the edge of the couch, the north end of the couch, and receiving a rain of blows.  At least one of these blows, he remembers, was a good lick.  Now Captain MacDonald suffered two apparently cutting wounds, one on his left abdomen, one in his right chest area causing a pneumothorax.  These wounds perhaps he would have gotten in a struggle, but consider that these wounds are superficial in the sense that one of them does not go all the way through the skin; another was shallow enough so that the only thing it penetrated was the chest wall into the plueral cavity and perhaps the lung.  Had it gone two to four inches a great deal more damage would have been done.  Anybody fighting with Captain MacDonald and attempting to do hin damage with a knife would surely have done a little better job than that, particularly if Captain MacDonald's hands at the time were all twisted up in his pajama top.
     Let's consider too this eight or ten prick wounds that Captain MacDonald allegedly received in his abdomen.  It is interesting to note initially that although many people have described the wounds of Captain MacDonald received, and there's been some discrepancy between government witnesses and defense witnesses as to how many wounds he received to the head, nobody but Captain MacDonald remembers these little puncture wounds on his abdomen.  How did he get those little puncture wounds on his abdomen?  He fell face down in the hall.  He awoke face down in the hall, and I suggest to you, sir, that this would lead one to the conclusion that he awoke in a position that he fell in, which means that if you take his story, you have to believe that he got these eight or ten punctate prick wounds during this rain of blows.  Now that's a marvelous touch.  A man with an ice pick or a knife who is capable of delivering not one or two or six, but ten blows with this instrument, which merely break the skin, which indeed pricked the skin so superficially that they weren't seen in the emergency room by the people who would have seen them with a medical eye in time closest to the time when he received them.  How about those prick wounds?
     Well, this brings us, sir, to the issue of the pajama top.  That pajama top is of critical significance.  You've seen for yourself, sir, that the pajama top has numberous small round holes in it.  Now how did it get those small round holes?  I suggest, sir, that it got those small round holes while it was on the chest of Mrs. MacDonald, and I suggest too that these eight or ten puncture wounds that Captain MacDonald describes were invented to help to explain why there are small round holes in his pajama top, and I suggest to you, sir, that it doesn't really do that since many of those holes are in the back of the pajama top.  Now there seems to be some indication that the defense might want to contend that the holes in the pajama top came as Captain MacDonald, having it around his wrists, was defending himself.  Very good.  If that were the case, with the size of these little round holes being very nearly the size of the shaft of an ice pick, and not the point of an ice pick, that Captain MacDonald should have some rather severe wounds in his hands or his wrists.  He doesn't.
     Now what about Mrs. MacDonald and the pajama top?  The pajama top was put on top of Mrs. MacDonald by Captain MacDonald.  He said so.  He let the government believe, and we believe that Captain MacDonald put that pajama top on top of her.  We also believe that he then methodically with an ice pick punctured the chest of his wife, unfortunately also puncturing the blue pajama top.  Now that pajama top obviously was ripped during the time of the struggle.  It trails numerous strings.  Even today it trails numerous strings.  You've seen it yourself this morning, sir.  You know that it just drips these little bitty strings.  Obviously, then, we can expect that there will be many of these little bitty strings in the living room where the thing was torn, according to Captain MacDonald, right?  No, I'm sorry, there aren't any there.  That's not where you find these little bitty strings.  The vast majority of the strings were found -- call them fibers, call them what you will -- were found in the master bedroom, and I suggest to you, sir, that although this pajama top drips these little bitty strings, it doesn't leave too many of them around.  I suggest to you, sir, that it would have shed the greatest number of them at the instant when it was torn, and I suggest to you, sir, that the evidence clearly shows that that pajama top was torn in the master bedroom; and incidentally, where did we find the pajama pocket?  In the master bedroom.
     That gives us another little problem.  Several of these fibers were found underneath the body of Mrs. MacDonald.  But that's a little strange because Mrs. MacDonald was substantially in place when Captain MacDonald went to check her, according to his story, and although he shifted her a little bit, he doesn't indicate that he moved her any great amount, and I suggest to you, sir, that he did not move her any great amount.  Then how did the pajama strings get under Mrs. MacDonald, since she was already lying in that position before Captain MacDonald ever brought the pajama top into the bedroom?  And that's easy, sir.  The pajama top was torn in the bedroom.  It was torn while Colette MacDonald was alive.  It was torn during a struggle between Colette MacDonald and Captain MacDonald.  That explains it.
     Captain MacDonald's theory does not explain it, cannot explain it, not even if we assume that one or two threads fell off of that pajama top underneath Mrs. MacDonald at the time that Doctor Neal either did or did not shift her, because they are found from her head into her leg area, and they could not all have dropped into all those various areas during the shifting of the body which, by the way, I do not believe happened.  I don't believe Mrs. MacDonald's body was shifted in that manner.  However, regardless of whether it was or not, I contend to you, sir, that those things did not and could not have gotten there in any fashion other than the way I have described it.
     Now there's another interesting fact to be noted about the strings and fibers of this pajama top.  We find one of them under Kristen MacDonald's fingernail.  How in the world did it get under Kristen MacDonald's fingernail?  Captain MacDonald had taken his pajama top off in the master bedroom.  Now admittedly, he was still wearing his pajama bottoms, and we know they were torn.  And incidentally, sir, I suggest to you that the pajama bottoms were torn at the same time the top was, because who would wear a pajama bottom which was then torn in that manner otherwise?  And if it had been torn in that manner at some time prior to the night of the 17th, washings would probably have taken care of any stray fibers which might otherwise fall, so how did that little fiber get under Kristen's fingernail?  I don't believe, sir, that a fiber will fall underneath someone's fingernail.  A little bit of fiber floating around is not likely to do that.  How did it get there?  I suggest to you, sir, that it got there while Kristen MacDonald was alive, while she was clutching, and remember, sir, she has numerous wounds to the hand, as though she were attempting to protect herself or to reach out, and I suggest to you, sir, that she did reach out and she encountered the garment of her assailant, and her assailant was Captain MacDonald, and that, sir, is how that fiber came to rest under the fingernail of Kristen MacDonald.
     So I suggest to you, sir, that there are many factors which do not match up, either independently or in conjunction with the story that Captain MacDonald tells of that evening.
     Now, sir, Captain MacDonald was assaulted, according to his story, by three men and a woman.  Did she have muddy boots?  Well, it was raining outside part of that evening.  We know that the MPs tracked in grass and debris when they came into the house, and we also know that all of the first MPs that entered that house said no mud, grass and debris in the master bedroom, and there's plenty of light in the master bedroom, plenty of it.  They also say, sir, that there was none of this material in the living room, where you would expect it, had the four people that Captain MacDonald described been where he describes them.  Now the light is not as good there.  That's true, but these people said that they could see, and they said that the debris was not there.
     Now Captain MacDonald, according to his story as to what happened that night, fell in the hall.  That in itself is a little difficult to understand because he wasn't facing the hall, and you've been in that house, sir, you know the relationship between the couch and the hall.
     You can't just fall from the end of that couch into the hall.  It can't be done.  How did he get in the hall?  If he was in the hall, why don't we have a puddle of B blood at the end of the hall?  Why don't we?  Well, one thing you could say, sir, if you were the defense, you could say, well, had his pajama top wrapped around his hands.  He fell on his hands and the wound bled into the pajama top.  Yeah, you could say that.  I would still expect there to be some blood in the hall.  But you know, it's interesting that the first time that that version was said was right here.  That had never come up before.  He hadn't mentioned that before, but that's how he explains it.  But it is odd.
     What did Captain MacDonald do when he left the kitchen, having washed his hands?
     What did he do?  He doesn't remember?  Well, maybe he doesn't remember.  It is odd though that he specifically remembered leaving and going back to the bedrooms in one of his prior statements.  It's also odd, sir, that Captain MacDonald tells us that he remembers these events better now than he did on 6 April.  Maybe, maybe so.  It's a -- a little odd, very hard to understand, and interesting that what he remembers now is a great deal more beneficial than what he remembered then.
     Now why, why would four people, strangers to the house, strangers to the MacDonald family, leave a scene in the living room which has such a very high probability of being staged?  What for?  What for?  And there's no reason, no reason why they should do that.
     Who has a reason to stage what happened in the living room?  Captain MacDonald has a reason because it didn't happen there, and he has to explain it.  Also why is there AB blood on that Esquire magazine, which is underneath a box, which is underneath a table?  AB blood, that's Kristen's -- I'm sorry -- Kimberly's blood type.  That's odd.  That's very odd.
     Did Captain MacDonald give all the members of his family mouth-to-mouth resuscitation?
     Yeah, yes, he did.  He said so here.  Of course, he didn't say that before.  He didn't say that before but he says it here.  Was he walking, crawling, how was he getting around?  Well, it's confusing, and it's understandable that under any circumstances it would be confusing.  But it is just one more confusing thing.  It's just one more confusing thing.
     And finally, before I go into the theory of the government as to what happened on that evening, how many Negros were in the group that assaulted him?  Specialist Newman, who was in the emergency room, heard Captain MacDonald describe two Negroes and one white male, and oddly enough that's the description that went out on the air too to the MPs.  How many Negroes?  That's odd.
     Now what happened that night?  What kind of theory would explain all these odd and inconsistent little bits of evidence?  I give you, sir, at least one, and were I to belabor it, I could give you three or four basic variations, but I don't think it's necessary, so let me give you one.  I think, sir, that the early evening hours of the 16th occurred as Captain MacDonald said they did.  There's no reason to believe otherwise.  There's no evidence to the contrary.  We know that Mrs. MacDonald went to her class.  We know this because we know from other students that she was there.  We know from one witness that she drove home with.  I believe too, sir, that Mrs. MacDonald went to bed first, and I believe also that Kristen got in bed with her.  Now what about Kristen getting in bed with her?  What's the significance of that?  Well, they talked about it before, and they had some minor disagreement as to what to do about it, and somebody had wound up sleeping on the sofa or in somebody else's bed before on account of this.  Kristen, I believe, wet that bed, and there is in that bed what appears to be a urine stain.
     Up to that point, I believe Captain MacDonald, because there is no independent evidence which would show me a reason not to.  And then I think things began to go astray from what Captain MacDonald said happened.  He went into the bedroom.  He found his wife asleep.  He found Kristen in bed with her asleep, having wet the bed.  I believe that he took Kristen back to her own bed along with the bottle, which we know from the pictures wound up on her bed.
     But I don't believe that Captain MacDonald went to the couch.  What did he do?  "Hey, wake up.  Wake up."  "What do you want?"  "Kristen wet the bed.  I told you we should put her back in her bed.  Somebody's going to sleep on the couch.  Go."  Now, am I contending, would I conceivably contend, would the government contend that because Kristen wet the bed Captain MacDonald killed his wife?  No, it's a beginning.  It starts an argument.  What does Mrs. MacDonald do?  "No, I'm not going to get out of bed.  You sleep on the couch if you want somebody to sleep on the couch,"  and an argument ensues.  Perhaps it got a little heated.  Mrs. MacDonald gets out of the bed; voices get raised a little bit.  Remember this is the far end of that apartment.  It's the area where Pamela says she can't hear things from that end.  The nearest thing to it is another building, fifteen, twenty feet away.  So it's not odd that nobody would have heard an argument of this nature.
     What happened?  I think what happened is it got more heated and more heated.  Perhaps Mrs. MacDonald slapped Captain MacDonald.  Now what kind of man is Captain MacDonald?
     He's actionoriented, proud, has a great deal of store set in his masculinity, and he's a trained athlete and boxer.  What happens?  He slaps -- whap! -- he slaps back, probably, possibly without even a second thought, reflex, whap!  Now we've got physical contact.  What happens then?  Mrs. MacDonald reaches with her right hand and scrapes.  In doing so she puts some little puncture marks on his chest, and she tears that pajama top right down the center of it, and she tears that pajama pocket right off it, and Captain MacDonald hit her, and she comes up fighting.  Now it's possible that she came up first with a knife, and it's possible that had she not done that, things might have been otherwise.  That's a possibility.
     She's frightened, has a knife perhaps.  Maybe she waves it at him.  Possibly she inflicts that little scrape wound that's on his left abdomen, and that does it.  That does it.  Now he is losing his conscious control to his action orientation.  He picks up a piece of lumber.
     Now what about this piece of lumber?  What about it?  It's got paint on it, apparently of the same type that has been used around the house.  He's been building a lot of things, shelves and things like that.  It's a size that could be used to prop a window.  The children play with the lumber, so it's not unusual necessarily that the lumber to have been there.  It's not unusual necessarily in view of the nature of the clutter in that house that perhaps a paring knife was present.  He picks up that stick, having perhaps just been either hit or perhaps threatened with a knife, and he beat his wife with it, and she has the wounds on her forearms where whoever beat her she was fending it off with her forearms, and with each stroke of that stick he's getting angrier and angrier and losing all control in a blind fantastic mindless rage.  And tragedy of tragedies, Kimberly MacDonald, having heard a commotion, enters that bedroom, and standing in the doorway says something like "Daddy, what's happening?", and in a blind rage, without thinking, intending to inflict great harm on whatever object he struck, Captain MacDonald simply swung around and smashed her skull, and swung again, and maybe again, and she fell in the doorway where we have a patch of AB blood.
     My God, what's he done?  I believe he loved his children and I do not believe that in any contemplative mood he would have inflicted harm on them, and he sees what he's done, and it's just like cold water then.  "What in God's name have I done?"  He's a doctor.  It doesn't take too long to discover that Kimberly's skull is smashed.  His wife is lying there with her forearms smashed.  Her head beaten open.  He reaches, he takes the bedclothes off the bed, picks up his daughter and carries her to her bedroom and places her in her bed, carefully tucking the covers under, and remember, sir, that the way Kimberly was lying in that bed she could not have been injured as she was, because she was lying on one of those bruises, and even if she had been in bed lying face up, it would be almost impossible to inflict the bruises that she had.  I submit to you, sir, that she was not in bed when she was struck.
     And he takes those bedclothes and he wanders into the living room and he just drops them, and he drops them at the entrance to the kitchen and we have smears of A and AB blood in that location.  Where did the A blood come from?  Splattered perhaps from his wife's beating.  And he sits on the couch and he puts his head in his hands and he says "My God, my God, what will I do now?"  And what can he do?  He has beaten his wife.  He was provoked maybe, so what!  He's inflicted a blow which the pathologist tells us was fatal, which any doctor from looking at and feeling, could realize was an immense depressed fracture likely to produce grave damage to the brain, and very possibly death.  And doctor MacDonald could have easily known that, and what can he do now?  He can call the MPs.
     But what happens then?  He's got to tell them what happened, and he can't tell them that some hippies came in and just beat up two of them and left him alone and Kristen alone.  He can't tell them that.  He's gotta tell them the truth.
     He's spent all his life becoming a doctor.  Success is the driving motivation in Captain MacDonald.  He will lose everything that he has fought for throughout his life if the does that.
     He is guaranteed to become a useless derelict to society if he calls the MPs and tells them what happened.  He can commit suicide.  I submit to you, sir, that this is not the man to commit suicide.  This is a man with a life drive if you listen to the psychiatrists, of insurmountable power.  This is a man who just simply will not commit suicide.  Suicide is the ultimate failure.  What else can he do?  There's one other thing he can do.  He can kill the rest of his family, he can inflict some injuries on himself, and he can say somebody else did it.
     It's happened recently.  We know it's happened recently.  He knows it's happened recently.
     He's discussed the Manson case, and even if he hadn't, no intelligent, educated human being alive in February of 1970 in the United States of America did not know about those killings.
     Now, that's a horrible, horrible thing to do, and it's a horrible, horrible thing to say anybody could have done it.
     But what does a man in this situation that we contend Captain MacDonald found himself in at that point do?  Three choices; he can't take two of them.  He goes to the kitchen; he acquires some rubber gloves; he acquires a paring knife -- he left the other one in the master bedroom, and he goes perhaps first to Kimberly, knowing that she might be in grave danger and grave pain.  Who knows?  We don't know, but he does go to one of the children and he stabs them, and there's no great mutilation of these bodies.  There aren't great X's carved in their chest and their toes are not cut off.  They're killed, that's the main mutilation.  He winds up in Kristen's room.  Who knows what state of mind?  Grieving, crying, who knows?
     But with his knife he stabs Kristen and he stabs her, and she reaches up.  She's stabbed in the hands and she acquires one of these tattered fibers under her fingernail.  And lo and behold his wife comes in!  He hits her, she falls to the bed and she bleeds there, having already been beaten, having had her skull opened up where the scalp bleeds profusely, and she bleeds all over the top part of that bedsheet, and that, sir, is where we find great stains of A blood.  Colette MacDonald's blood.  He takes his wife back to the master bedroom.  He stabs her.  He returns to Kristen's bedroom, turns her over and stabs her some more.  What does he do then?  He could have done a lot of things, in the order I'm not sure of, and I don't know how much it matters, but at some point he does go into the master bathroom and he cleans up.
     Now, I submit, sir, that what he did was he made those phone calls, and then he realized "I've still got the gloves on."  Now, at some point, in an effort to be consistent with his story, he has used the first two fingers of his right hand to right "pig" on the head board in A blood.
     Perhaps it was then, and I suggest, sir, that he has at some point consulted the Esquire magazine which is why there's AB blood on it.  He's made the calls.  Perhaps he still has the blood-soaked rubber gloves.  Quickly wiping the phones, tearing off the rubber gloves and distributing fragments about the master bedroom, rushing to the master bathroom, washing his hands, flushing down these gloves.
     What about his wound?  Well, it was at some point along in here, I suggest to you, sir, that he inflicted that on himself, if he did, because it's possible that his wife inflicted even the wound which caused the pneumothorax, but I think not.  I think he did it himself, very carefully holding the blade between his fingers like this, aiming it in an apparent vulnerable spot upwards, and stabbed himself, and flopped on the floor and waited for the MPs.
     And that, sir, is essentially the way Captain MacDonald became a murderer.  Thank you.

COL ROCK:  This hearing will recess for five minutes.

(The hearing recessed at 1142 hours, 11 September 1970.)

(The hearing reopened at 1150 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.  Proceed, counselor.

MR. SEGAL:  With the investigating officer's permission, I would like to dwell for a few minutes on what I think are certain appropriate rules that are going to be necessary to guide this investigation in arriving at the conclusion that it must bring about.  I am not certain that the investigation has been given the proper or sufficient guidance by the suggestion by the government that they didn't have to produce a case beyond a reasonable doubt.  I don't think there's much argument about that.  I do not suggest to you that the burden of proof that is facing the investigation is whether or not the government has produced a case beyond a reasonable doubt.
     We have researched this matter in an attempt, first of all, to help ourselves to determine our analysis of the case and the presentation we make to you.  What standard are we to use in measuring the evidence and therefore being able to argue to you whether or not the government's evidence has achieved that standard or not?  I am of the opinion, sir, and I will share with you the reasons why I am of the opinion, that taken on every single known standard, the government's case meets none.
     Now if we take the standards as running from that no burden of proof exists whatsoever on the government at all, all the way through the highest standard that we observe in criminal matters, which is proof beyond a reasonable doubt, we find no standard which the government's case has achieved.  But I don't think that the standard in this case is no burden of proof on the government at all.  It seems perfectly clear from the decisions of the United States Court of Military Appeals, which in this particular proceeding, has had the most opportunity to reflect upon the nature of an Article 32 investigation, but also on reflection of the decisions of the United States Federal Courts dealing with Federal criminal procedure and dealing with constitutional rights which apply to both military and civilian persons, that we can find some guidance as to what are the applicable standards.
     Now in the several cases that the Court of Military Appeals has discussed what an Article 32 proceeding is, and as a matter of fact, sir, it has had occasion to make reference to the definition of what an Article 32 proceeding is in one of the collateral proceedings brought by counsel for the accused, the court has reiterated its previous position that this is akin to a combination of a preliminary hearing and the grand jury inquiry.
     Now that takes perhaps a slight amount of explanation as to what those two really represent in Federal criminal law, because again I think that is what the Federal courts pattern themselves after and that's what the Court of Military Appeals patterns itself after when it seeks guidance or seeks other decisions of other courts when it has none of its own to look to, it looks to what the Federal courts say; and, as a matter of fact, an analysis of the military law system at this level, at the level of the initiating stage, there are a great many parallels to the Federal criminal procedure.
     The only aspect that I perceive of an Article 32 proceeding that is really akin to the grand jury proceeding is the one that says that this court, or this inquiry rather -- rather than a court, this inquiry -- may bring before it persons who give all types of information, that is, evidence which would not normally be directly relevant, directly germane.  For instance, I would categorize the testimony -- just for a moment, to address myself -- of Mrs. Daw as not being directly relevant or germane to the inquiry in the MacDonald case.  But it has some collateral value in terms of establishing nature of certain activities in drugs in this community which Fort Bragg is part of, and therefore it does shed certain amount of background or a sidelight on the problem.
     Now in a preliminary hearing there is no conceivable way that any counsel for either side could establish the relevance or materiality of that kind of testimony and it would not have been admitted.  By the way, it is not the only type of evidence in this case that has come in like that, but it's rather far too fringe of the area of the inquiry we are making.  But in a grand jury investigation, the grand jury brings before it many persons to educate it.  So the grand jurors, who are in a sense like the investigating officer, not judges or lawyers, but are persons who have a specific criminal law assignment, may understand the context, the middle-you, if you please, in which they are functioning so that they may then apply that background to an understanding of the specifics in a given case.  I think that is the substantial parallel to the grand jury procedure.
     I think also, sir, by the way, the right of the investigating officer to close these proceedings is, in a sense, much akin to a grand jury investigation which is always held in secret.
     Grand jury investigations are not held in the presence even of the accused, which we do here, but otherwise what goes on in a grand jury proceeding is not open to the public or to the media.  And again to the extent the court has affirmed the right of this inquiry to close, it has adopted one of the aspects of the investing grand jury, the grand jury proceedings.
     There is one other matter which probably is akin to the grand jury proceeding and that is in effect that the grand jury itself controls what goes on.  It is, although there's government counsel in this proceeding and accused's counsel, in effect the final decision can be made by the investigating officer as to what he will hear and not hear, that he wishes to be brought in.  Where normally in a trial or preliminary hearing the magistrate or the other officer who hears the preliminary hearing would not normally direct the nature of the inquiry or direct the clearing of issues.  As in this case, we are in fact investigating and using the grand jury parallel.
     Now on the other hand, as far as I can perceive, sir, another aspect of this case is identical to the way a Federal preliminary hearing is held before a United States Commissioner, that is that we do in fact have the accused present here, which in a grand jury proceeding the accused is never allowed in a grand jury room except in a very rare occasion when he, himself, might agree to be a witness, and then he's excused and does not hear anyone else's testimony.
     We are different from a grand jury in a sense that we have counsel here for both sides at all times, which is not a grand jury procedure, and we set about to prove a certain set of given facts or present testimony witnesses.  In effect, the government tries to sway the investigating officer that it has sufficient evidence to justify the investigating officer recommending the case be held for court-martial.  That is exactly what the function of a commissioner or magistrate performs when he hears the case.  He makes no final determination of guilt or innocence.  As a matter of fact, in most instances, he is concerned only whether the government's evidence alone is enough to, on its surface, require that the case be held before grand jury, but does not pass upon fundamental question of guilt or innocence.  Now again, to that extent this proceeding is very much parallel to that.  The question here is, has the government persuaded the investigating officer that it has enough evidence to go forward.
     We have here, however, an additional feature, and that is a feature that is not available at all in preliminary hearings.  In State court preliminary hearings, interestingly enough, we do not allow defendants in murder cases to offer any testimony.  We simply say does the prosecution tell us enough to persuade us of two facts.  One, is there prima facie, that is on its face, does it appear that there was a felonious death here?  And secondly, does it appear that it is reasonably clear, on the basis of just hearing the prosecution evidence, that the accused committed the crime?  Not beyond reasonable doubt, but does it appear clearly on its face.
     Now it seems to me that we are largely akin on all points with the preliminary hearing procedure.  On that point a parallel is for instance Federal preliminary hearings, the rules of hearsay evidence do not apply exactly as we function here.  That is, in a Federal preliminary hearing we would regularly have FBI agents, other investigative agents, come and testify as to the statements of other persons or, although very germane and very direct matters.  In fact, it is even possible in a Federal preliminary hearing to not have the witness present, but to have an agent go as far as to read that person's testimony.  That is permissible.  We follow it, and again it was allowable under the rules in the cases set down by the Court of Military Appeals a procedure which says that we will allow hearsay in where in our judgment we think that helps the investigation.  But also because this inquiry has been an unusually thorough one, we have largely tried to avoid hearsay where it was reasonably possible to produce the live witnesses, but again, the point I make at this juncture, is that is akin to the preliminary hearing.  That leads me to the conclusion, sir, that the standard that is most applicable, that is the one that I think would really conclude as the one that guides this inquiry, and the one that which should be applicable to this inquiry is has the government persuaded the investigating officer that it has established a prima facie case against Captain Jeffrey R. MacDonald.
     Now the terminology, a prima facie case, is getting to be a little hoary one in the law, but it doesn't really have any great mystery to it, as far as we understand it from common usage.
     That is, on its face has the government shown, one, a felonious killing?  Well, nobody in this case has the slightest hesitation about that.  We know there were three felonious killings.
     But has the government established clearly that it appears on the face of it that Captain MacDonald has committed these offenses?  Clearly on the face of it Captain MacDonald has presented these offenses?  Not presented beyond a reasonable doubt now.  I haven't said that.  But giving the government the benefit of the open question as to say credibility of the witnesses.  Let's say or assume that the government witnesses are credible.  Let's give the government every favorable inference we can reasonably do, except where the inferences are not justified, because their witness is clearly shown to be wrong, therefore the government no longer has the benefit of that.  But on the aspect of the witnesses testimony, the inquiry officer should say to himself, well, assuming, you know, looking at the government's evidence in a favorable light to the government, considering whether that witness, of course, was impeached or contradicted by somebody who no longer makes him credible in your own eyes, but considering that, has the government persuaded the investigating officer that on the face of it, that is it appears clearly, it appears without the necessity for struggle, conjecture, invention, that in fact there is clear reason, apparent reason to conclude that Captain MacDonald committed these murders?  Now I do believe that there is no single case that will state this to you, sir.  All I can say to you is that on the analysis of the case I think this is a clear rule of law that should be applied.  I would certainly prefer, if the investigating officer was to adopt, for instance, the more stringent standard of the court-martial, the more stringent standard of the criminal proceedings, which is beyond a reasonable doubt, but I haven't the slightest hesitation to say to you, sir, that the case could not even get to the point of the defense being offered because it would not meet that standard.  But no matter whether that standard is applied, or the one that I think is more appropriate one, or the prima facie case standard, it doesn't -- the government's case doesn't meet that.  You can get any standard in between, if you can contrive a standard lesser than that, if you do any standard at all, I am satisfied that we can show an analysis of the way the facts have fallen, that the government has not met any reasonable standard it can establish for it.  The only standard that we can allow this investigation to recommend, in view of the evidence, at least, that Captain MacDonald be held for court-martial would be a standard to say they have no burden of proof whatsoever, and they established a murder and they don't know who committed it.
     They don't know the answers to a great many questions, some small and some large, and therefore, because they don't know the answers, there ought to be a man's life placed in jeopardy for a triple homicide.  I doubt very much whether any court, and I doubt very much whether this inquiry, after reviewing, I think, the law as we understand it, would conclude that they have no burden.  That will be the only way that we could arrive at the conclusion in recommending courts-martial.  But I think we have gotten to the point where we can now review the facts and compare them to these various burdens now, I want to say one thing, that I will try my best, sir, in every fashion that I know, to refer accurately to the record, refer accurately to what I believe the witnesses have, but we have had in my judgment, in my experience, probably the longest Article 32 investigation as far as the numbers of weeks spent in actual hearings that I have ever become aware of.  I know of no recorded case, frankly, where more time has been spent, therefore, if I inadvertantly mistate something, or if your recollection is different from mine on what the facts are, I trust that the inquiry will give me the benefit of doubt, that is an unintentional misstatement, and that I will seek to the best of my ability to bring together the facts as accurately as I can.  But I, in advance, say that if I err, if your recollection is different from mine, it is not with any intention to mislead the inquiry.
     I want to make one other observation, if I may, before talking about the analysis, and that is I have a very real feeling, because we are in the military context, that in one of the other parallels that we might draw to the way we are functioning, to the way you must ultimately make a conclusion, is to the, I think, the development of an intelligence operation, that is, if we view the entire proceedings that we have been sitting through as a command seeking to have the staff and the other field officers come before it, and bring together the bits and pieces of intelligence, some remote, some close, some in depth, some less in depth, some from good people, some from less competent people, because the command has to make a decision based upon the intelligence, which will commit the life of one of its members to possible death.  I think that one might say that in advance of even more analysis of the record, that I would think that the commander would have an enormous difficulty to say on the basis of the facts that were laid before him, he could in good conscience justify thereafter to himself, or to any other authority, having committed the life of a member of his command on the basis of what had been laid before him.  It seems to me that no command would take a definitive step, that no command would say all right, it is now clear enough to me that I can now make a command decision in which I recognize life is at stake.  Not merely time or money, but life is at stake.  I think that is the kind of background that we keep in this, because we have seen the development of all kinds of intelligence without, I think, meeting the kind of standard which I think the commander would have to apply.
     Now we have met here for over five weeks to find out what has been the government's theory of how this took place, how this crime took place, how did Captain MacDonald commit these crimes.  As a matter of fact, as I have listened to the testimony as we've gone through it week after week, at various time the theory seems to me to have changed.  It seems to me there have been different suggestions as to whether Captain MacDonald killed all three of the persons in his house, as far as the government saw it, or whether Captain MacDonald killed two of the persons in the house, or one of the persons in the house.  It seems to me as a matter of fact, that it was a great error that from the very beginning the government did not elect to tell us on its opening address what was the theory that they were going to proceed under.  That is, the government simply said they were going to prove that Captain MacDonald did this, and I'm going to point out to you within a moment or two, sir, one of the most important things the government contended it would prove by the statement of government's counsel at the opening of its case, which is in the record of this case, which it did not prove, and yet it has gone on at great length in this theory that is announced at the end of five weeks as to how this happened, without ever having proved what is one of the fundamental underlying facts that they said they would prove in advance of this case, and which would have some germane value in helping the investigating officer determine whether or not the government has, in fact, proven anything at all to resemble the theory that they have argued here today.
     Now in my own review I did not have the benefit of the government's theory in advance, having waited for all this time to arrive at it, I took a different tack, and I want to explain why I've organized my material in this way.  Simply because it ought not to be viewed by the investigating officer as a failure to respond to the government's case, because I did not know how they intended to proceed until we actually heard the government's counsel's final words, but I took this tact.  It seemed to me it was advisable to make an intelligent presentation to the investigating officer, it would be that I should presume certain intelligent assumptions of how an investigator, I mean a police investigator, a detective of homicide case, would have worked on this case, and therefore would he contrive some rather ridiculous ideas of how one might guess or presume the case took place.  I sought to find what the mind of the intelligent detective would think in this case, and I found that there were conceivably four theories that the prosecution could have proceeded under, and in fact, in listening to the final remarks this morning of government's counsel, I found that they picked up at least two or three of those theories to try and explain how Captain MacDonald committed the crimes.  The four theories that I thought an intelligent investigator might bring to this matter as he was proceeding to uncover the evidence, to bring it into an inquiry like this, would be one, that Captain MacDonald killed all three of the members of his family in a premeditated homicide and that he was sane at the time he did it.
     The second theory is that Captain MacDonald killed all three of the members of his family upon impulse, but without premeditation.  The third theory of the case would be that Captain MacDonald committed all three of these crimes when he was insane temporarily; and the fourth theory of the case, as I gathered it only remotely from a questioning as I hwve heard from government's counsel and some suggestion through witnesses, was that in fact Colette MacDonald was responsible for some of the deaths, but that Captain MacDonald was in turn responsible for her death.  It seemed to me that these covered all of the possible logical approaches to evaluating the evidence and I therefore ask leave to take the liberty to present my review of the evidence in that regard.  I will, at the conclusion of the analysis of what I thought were the four intelligent theories, treat some specifics that were brought up in the government's new theory announced this morning, which seems to me to spread equally over the several of the individual theories that I set forth.
     Now in doing this, sir, I find for my own edification,for the purpose of not losing the train of thought, and for not being unnecessarily redundant, although the theories will in fact be redundant in points, each theory involves overlapping review of the same evidence, I would like to use the chart here, and I trust the government's counsel will put themselves in a comfortable position so they may see it if they care to observe any of the notations I make.
     I wish to note here on the board that I consider this to be MacDonald sane and premeditated.  The reason why one might suspect at some point that the government would pursue this and of theory was that, one, they have no evidence of insanity, impulsive, extraordinary impulsive behaviour at any time, and a great deal of the questions of government's witnesses was to show that MacDonald was rather bright and rather calm and cool under difficult conditions; that therefore the picture of the killer under theory number one would be a very intelligent, much more so than the average homicide committer, very intelligent, cool, calm, able to think, to analyze because of a substantial amount of education, personality and training to indicate dealing quickly with situations, and that this kind of individual could pull off a premeditated intentional murder.  And in fact, the latter part of the government's summary this morning was in the killing of the second child, and in fact, Mrs. MacDonald's final killing, that is -- although they talked once about fatal wounds being inflicted in the first fight and then Mrs. MacDonald coming in and discovering Captain MacDonald killing the second child, which at which point the government said he was no longer temporarily insane but was sane, doing it to protect his career.  That second attack on Mrs. MacDonald was premeditated, so in a sense, I'm not talking about something that does not exist in this case, but rather what the government seems to be telling us about one or two of the killings this morning.
     Now what I wish to point out is there are a number of enormous discrepancies in the logic of that kind of theory, and the first discrepancy I will categorize as the weapons that were used.  Now the reason why I think this is a discrepancy falls into a number of different points.
     Now first of all the number of weapons that were used.  There were four weapons used by Captain MacDonald in his sanity and in his premeditation to commit these crimes, and as a matter of fact, not only were the four weapons used, but it appears that all or three of the four weapons were used in almost every instance on all the persons.  That is that if you -- I think you will find that of the three dead persons, that each, two of the dead persons had three different type of injuries from three different intruments and one had two injuries on her, meaning that they were eight separate acts committed against those three persons.
     That is not the use of a knife alone, but a knife and a club and an ice pick, or two knives and a club, and a combination of others, but in fact that there were eight separate weapons, if you use each of the weapons as a separate use, eight separate weapons used against the bodies.  Plus, sir, the fact that Captain MacDonald had three weapons used on him.  In other words, sir, a minimal number of eight, eleven separate weapons used.  An odd kind of a situation.
     Now what in the name of the logic of the premeditated intelligent MacDonald was that done for?  Well, one might conceive of this possibility, that is that they were done to mislead any investigators for the purpose of considering that there were many people involved in the attack.  That's perhaps a reasonable possibility as to the three weapons, as to the ice pick and the two knives.  It is an unreasonable possibility as to the use of the club, because the club in and of itself is not likely under any conceivable circumstance that we know of in this case to have produced instantaneous death, and since we are dealing with a calm, cool, collected, emergency room type who is very bright, he knows that the Kalins are virtually over his head, that the Pendylshoks are within clear earshot of his home, that there are other people at home, and therefore one does not commit an assault when one is seeking to escape the consequences of it with a weapon which is not one at all assured of producing instantaneous death, but, to the contrary, requires a clubbing to death of an individual with consequences screaming and yelling, which in fact witnesses did testify to having been heard.  It doesn't make any sense.
     Another reason it doesn't make any sense, that is it means that the efforts by this intelligent man requires him to manipulate four different instruments.  He cannot carry them altogether.  He can't use them.  He can't even logically hold three in one hand and one in the other.  He has to put some down, and when he's done using one instrument, get another instrument.  When he's done using two instruments in some cases, in the case of some of these bodies, to use a third instrument.  How does he carry them?  Does he put them in the waistband of his pajamas?  Dods he do any of these things?  What does he do with the club?
     None of those things seem to make any reasonable sense.  I mean we could fanticize to the nth degree, but if we take the government's approach and say we are trying to develop the nature of the defendant, the nature of the accused as being an intelligent man, that he was doing a premeditated act here, a calm sane act, it is inconsistent with those things to pick, first of all, four weapons to accomplish the acts, and secondly, of the four to also include in it the use of the club.
     Now, the point that I now want to make, sir, is that in regard to this theory of the government that Captain MacDonald has used four different weapons, I now want to address myself to a point made in the opening remarks on the first date of these proceedings by government's counsel, that they were going to prove that the weapons came from Captain MacDonald's home, and, sir, I have on this particular point devoted an enormous amount of energy, and I can say with perhaps more certainty than almost any other single fact I can think of, that with the exception of the piece of wood, that there has not the slightest evidence that the three cutting instruments, the ice pick and the two knives, have in any shape, way or fashion, been implicated to or identified with by the government, with the MacDonald house.  As a matter of fact, we do have the additional problem here of the unidentified fingerprint on the kitchen cabinet, on the kitchen counter near the door which the utensils were kept.  Now I make reference to the unidentified fingerprint to suggest to you, sir, that if Captain MacDonald was getting weapons from his own supply in the kitchen, that either he leaves no fingerprints because he has deviously contrived at all times to wear  rubber gloves, or, sir, if some other person has gotten the weapons, it is the person who has left the fingerprint that's not identified, but then it means it's not Captain MacDonald, and if the government is right, that the knives may have come from the MacDonald house, although we specifically deny it, because Captain MacDonald and no one supports their theory as they said they would prove they did come from there, then you have the print of an unidentified person in a just position which would seem to lead to a reasonable inference somebody would go into that drawer.  But then that wouldn't be Captain MacDonald.
     So it seems to me that if the government is on the horns of dilemma here, if it accepts the unidentified fingerprint theory and that the knives were in the house, that relates those together and relates to Captain MacDonald's story.  If they take the position there were no other persons, then they haven't proven that Captain MacDonald handled those weapons.  I am a little disappointed this morning that we do not have the weapons here before us, because I wish to make certain observations about the cutting instruments.  And the investigating officer, I would assume, will be at liberty at the conclusion of the arguments, or some other time that is convenient, to examine these to see whether in fact his own observations confirm or deny what counsel for the accused suggests.  It is my recollection on rather close scrutiny of the particular cutting instruments, of the two knives, that one of them showed on its surface that it had been scraped against concrete, sidewalks or stone; that it showed the kind of abuse and scratch marks on both sides that -- it had not been used in a conventianal kind of kitchen fashion, nor had it ever been sharpened on a cutting stone or kitchen sharpener.
     Now what is there to suggest that the MacDonald house had a knife of any sort that was in that type of condition?  That is, the investigators in this case had to have observed the condition of the knife.  This is a knife which I think it is fair to assume that was clearly sharpened on pavement on or a stone.  What other utensil in the MacDonald household had been abused in that fashion?  What other utensil had come to the attention of anyone in that fashion?
     Now, the ice pick.  We examined the condition of the ice pick.  The ice pick appears, in our judgment, sir, to be a very new type of acquisition, that is one which had not been used very much because it does not show any signs of abuse on it.  There's not the slightest evidence, and the government stated in its opening remarks it would show that these came from the house.  That Captain MacDonald or Mrs. MacDonald ever acquired such an instrument.
     What is it the government will suggest it was going to prove then?  Did it say we could prove one or two, that is the two knives came from the house, and that the ice pick is a new acquisition that no one knew about?  No, the government did not say that.  The government made no caveat and restriction.  It said in its opening remarks it would prove in this inquiry that those knives and all the cutting weapons came from the MacDonald house.
     You have a weapon which is -- a weapon which I would characterize as an abused one -- which does not seem consistent with anything else you find in the house.  You have a weapon in the ice pick, which no one had seen an ice pick in the house.  It is assumed of course that there were paring knives to be found in the MacDonald house, but these are denied as having been there.  In other words, you have no way of tying the weapons together with the MacDonald family, with Captain MacDonald or the MacDonald's house.
     Now I want to mention here with this point, the inappropriateness of what I call -- and I've already in a sense referred to it -- of the selection of the weapons, and here I refer specifically to the club.  It seems to me its a very significant observation to be made from this.  That the concern of the premeditated killer, that is the one who takes into account the fact that he does not want to be uncovered, that he is committing his crime in a densely populated residential area in which this apartment at 544 Castle Drive was located, would not in any conceivable, logical, intelligent or sane fashion pick to use a weapon, as I said before, that would produce lingering pain before he could possibly inflict enough blows on it to inflict death.  That is the club would not be instantaneous death.  Again, if we presume we're dealing with an intelligent sane doctor, he knows that with a knife a single thrust could be delivered to a vital part.  He knows a thrust in the heart would cause immediate death.  He knows that a wound to one or two other organs would produce instant death with almost no possible outcry, and therefore protect the premeditated sane killer.  None of that is appropriate here.
     Now there is one other kind of aspect about this weapon that should be considered, and that is again relating to the number of weapons, and that is because of the large number, there is, for the sane man, the real problem of the difficulty of discarding the weapons.  If he had used a single weapon, the opportunity to discard it is much simplier.  Now one of the things that troubled me about discarding the weapons was that they weren't really discarded.
     In fact as a sub-point I wish to suggest to the investigating officer, why weren't the weapons hidden?  That is, the sane killer would prefer to project to whoever investigates the fact that unidentified individuals came in; they committed these terrible events; and they escaped taking with them their instruments, taking them with them.  Why would they leave them there as a clue?  Why would they leave them there for someone to speculate whether MacDonald had gone to his own kitchen drawer and taken two of them out, bought an ice pick, he had brought a piece of wood which would perhaps be identified to his own house because it has paint on it?  Why would he then use those instruments, which would possibly turn the finger of suspicion to himself, and at the very time a sane, competent and trying to project the idea of people fleeing, he wouldn't have them take with them the weapons?  As a matter of fact, they might have even hidden the club lying out -- in the club lying out in the back grass in plain view.  The knives I think in relatively plain view.  I think only the darkness of the hour prevented immediate location of the weapons.  There certainly was no great effort to hide them.  One could readily conceive of the killer using a single weapon, throwing it down a sewer where it wouldn't be found; a single turn of the spade will lift aside to place a small bladed weapon, push the sod down, back into the house, and then you have shown, well, MacDonald couldn't have killed them because there he is.  He's wounded, they're dead and the weapons aren't there.  Therefore the conclusion would be the weapons are removed, or if MacDonald must retain one weapon in the house for injury to himself, why at least the club?  Why not mislead them, if the club seems so relatively identifiable to his house.  There's more lumber around, there's the paint on it, it isn't even a fresh piece of wood.  Why the intelligent killer who goes out and buys that new ice pick, goes out and gets a piece of lumber which is identified with his home?  It is not consistent with any suggestion that a sane, intelligent man committed these crimes.
     Now the third thing that troubles me about the sane premeditated killer is the time schedule that we used, and it was so certainly untimely that no sane man could have produced this kind of plan.  First of all, you have to consider the bringing in of the club into the MacDonald house.  Now in that regard we might suspect that perhaps there was premeditation.
     He'd gone out, brought the club in, secreted it someplace in the house, and then brought it out for the use in this killing.  That would indicate premeditation antedated the 16th, because one would find it difficult to imagine the housewife all day in a very small house of this sort not finding a rather unusual almost three-foot long club there.  And you have the assembly of the multiple weapons, the time involved in getting the weapons, the other weapons together.
     It seems to me again that we do know that Mrs. MacDonald was in bed.  We do know that the best that Captain MacDonald in the premeditated killing would have available to him was the time between when, either the government's counsel accepts the idea of something around two oclock, they believe as Captain MacDonald has said of what happened.  But somewhere between two and three the actions of the premeditated murderer had to become initiated.  That is he had to start either bring the club in, or if he already had it in the house, bring it out where he could use it, gathering of the other weapons together.  He has to assume that if he's going to use the club that he doesn't have a lot of time available to him to commit the murders.  Why does he have to assume that?  Because he knows that a single blow will not kill or can't assume anyway -- he doesn't know -- he can't assume that a single blow with a club will completely demolish the life of his wife, or the children or one of the children without screams, and he knows where the Kalins are in reference to his house.  He knows where the Pendlyshoks are.  He knows the intensity or the density of the development there.  Certainly the premeditated killer doesn't run the risk of using a weapon in a closely-knit time scheme which will bring outcry, perhaps before he is ready, because what does he have to do next.  The next thing he has to do, after he has assembled them and used them, and he has to assume that if he used the club that there may be some possibility of noise, he has to dispose of them.  Now in this case disposal would have had to require Captain MacDonald to go outside, place from some outside position two knives under the bush, a stick outside, come back inside again, while he's done this almost immediately after he's inflicted the blows with the club -- that is the highest probability certainly, I think, a sane man would think after I struck somebody with a club, there is a possibility of screaming.  That is the moment somebody is most likely to look out their window, as happened repeatedly in this case. People looked.  People were awakened by unusualness of the sounds.  So the time schedule just doesn't seem to make sense, that you'd use a club, you'd have to do all these things to get ready.  If you use the club -- I should really interject that here so that the -- you're going to have to dispose of it by going outside the house, there at least on the back concrete steps of his house to do it, exposing himself to view, exposing himself to the possibility that someone would see him just outside and then how would he explain that.
     Then, of course, he has to engage in the scene staging.  Now I am going to give the sane killer credit, sir, for having done the living room in advance.  That is I would assume the sane killer who is going to stage his getaway staged his own protective alibi story would, before he went in to attack anyone, carefully arrange the living room.  That is certainly a conceivable possiblity and is rational for a person who is intelligent and premeditated to work that out.  However, it was impossible, sir, to prepare the bedroom in advance, because we know there are all sorts of items that were disturbed.  There were all sorts of things that were moved.  There were all sorts of movement of the sheets, the blanket.  Things had to be done afterwards.  That could not be done in advance of the attack, so the killer had to do it after the use of the weapons.  As a critical time factor, assuming the other things easily before the attacks, use them, including the possibility of the outcry, worrying about the outcry from the people who were struck with the club, dispose of them outside of his house, then finished the scene staging, giving him credit for having done the living room in advance, and prepare the movement of the bodies as the sixth step.
     Now he still hasn't however accomplished his scheme by treating with his own injuries, and so therefore as part of the scene is being staged, he has to go ahead and inflict his own injuries.  Now all this in a situation where he in advance could anticipate using that club, would produce outcry or danger.  These are all the steps he's going through in regard to the time in this case.  Now I suggest it's just that kind of analysis that one is a little hard pressed to see that a reasonable intelligent man would invent that kind of scheme and carry it out, in a sane premeditated fashion.
     Now I want to take for a minute a separate form of analysis, this whole business about the scene staging.  Now if I may ask your indulgence for one moment, sir, I want to make reference to the note here.  The stabbing of Colette MacDonald through the blue pajamas, in other words, what was articulated this morning was done for the purpose of conveying the impression that perhaps those wounds -- those holes in the pajamas were made when Captain MacDonald himself was attacked; that is, that was done for the purpose of creating an effect.  There is, however, the very discrepancy, sir, found, if you recall the testimony of the physician who performed the post mortem, that there were no blue fibers, no fibers at all in fact in the wounds.  That is the incise wounds made into Mrs. MacDonald's body allegedly, under the theory this morning now stated by the government, through the pajamas, failed to leave the slightest thread.  And since the government makes a great point about the threading capacity of the pajamas, how is it that if that was staged, in the fashion the government suggests, there isn't that minute trace.  They said apparently MacDonald was very sloppy about the whole thing because he left fibers under the child's fingernail and he did a lot of other sloppy things, so that we would not think he cleaned out the wounds of the knife in the various places where it was allegedly punctured through the pajamas for the purpose of staging.  It does not exist that way.
     Now, staging and other discrepancies.  If part of the staging was to dispose of the rubber gloves, that is to not reveal that the reason there was no fingerprints is that MacDonald used an instrument in his own house in rubber gloves, and that most of the rubber gloves cannot be found.  Why was he grossly negligent as to leave pieces that are found rather easily?  Or that is if he disposed of his own rubber gloves in pulling them off he knew that the thumb was missing, and that the tips of the fingers were missing.  It wasn't as if it was a fact that could have been overlooked in the bedclothing and should have produced the, you know, furious searching for this because rubber gloves could conceivably be related back.  Why was that left there intentionally?  Why was that piece left where it was difficult to, you know, not see?  It seems to me that if that is the plan of the sane, intelligent, emergency room, college trained man, that we really misapprehend the nature of the beast with which we are dealing.
     Now, I want to make one other reference, by the way, to the rubber gloves, sir.  There is no surprise about the rubber gloves.  The CID questioned Captain MacDonald on April the 6th about the rubber gloves at page 27 of the transcript.  So they have known, in fact, they obviously questioned him on April the 6th about the rubber gloves, had reason to believe that there were rubber gloves missing from the house.  That is, if they had found the pieces at that point, which they had, and they were questioning MacDonald.  But up until then they had never talked to him about it.  They knew at that point that pieces of gloves might have been missing from the house.  That is the gloves that were not found on the kitchen sink.
     That was the surgical gloves; the gloves that probably were not found in the utility room are missing, and where is the explanation for all of those?  How did that fit consistently with the idea that MacDonald, in his scene staging, you know, managed to leave pieces of gloves around out of the very type that one would associate with him, as opposed to, for instance, buying a pair of 29-cent canvas gloves which achieved the same effect?  I suppose the government will argue that he wouldn't use handyman's gloves -- it is much better for the surgeon to stab his family with the rubber gloves because he can feel the knife so much better.  It defies what we are talking about.  I'll say that those kinds of scene staging are really on the absurd point.
     Now we get to the coffee table and the living room generally scene staging.  Now as far as the statement made this morning by government's counsel that the table doesn't usually wind up on its edge.  Apparently the answer to that depends upon who is experimenting or the experimenter in doing that.  However, let us assume that Captain MacDonald staged the scene in the living room.  Now we are talking about the intelligent, bright man, the reader of mysteries, for whatever that's worth.  Would the magazine and other things, if you were attempting to stage -- and I am thinking out loud as simply a person who has never committed a homicide in a premeditated fashion of any sort.  It seems to me the staging of the scene, the natural inclination, the natural assumption is to make it appear of a great deal of activity had taken place.  Not to minimize the amount of activity in the living room.  Not to make it appear as though very little had happened, although one claims to be stabbed there.
     But to really build it up a little, really add a little bit of theatrics to it.  It seems to me the elementary thing is to strew the magazines around that section of the living room.  You just throw them -- you just pick them up and throw them in the air.  One seems to, if you are staging that kind of event, if you're bright, you don't do what is more apparent.  That is, appears the magazines on tipping the table by a foot, of a leg passing by, being shoved by the man approaching with the club, tipping the table causing them to slide off.  Now, if he is staging the scene it seems to me logic requires him to find more credibility in the idea that they fell off or slipped off the table as the table was brushed by or pushed by the leg of the man with the club, or the other two men trying to come forward and join the fight; than the idea that MacDonald just turned it over to not make a great effort, to make it appear -- the appearance of a struggle here.  It seems to me that that is a very, very meaningful kind of discrepancy in the theory of the MacDonald stages.
     Now, we have in addition to this proceeding -- scene staging -- the feigned injuries, so called.  We have here, sir, five doctors who have given qualified opinions of the feigned injuries.  The first two doctors were Straub and Jacobson, who, I remind the investigating officer, were called by the government, and that both Doctor Straub and Doctor Jacobson said, in the government's case, and therefore it is part of the government's evidence that in their experienced judgment, one of them being a surgeon and the other being an emergency room treating physician, that in their clinical judgment, in their evaluation, of medical colleagues in general, in their evaluation of the intelligence of Jeffrey MacDonald, no doctor, knowing what MacDonald knows, would inflict and attempt a feigned injury, the wound to the lung that was inflicted in this case in the place it was inflicted because -- and I think this really flashes out.  To me it is one of those largest single phrases in this case that is worth some weight, and I will use the abbreviation for the full statement by saying -- he could not know the medical consequences of an injury inflicted at that point.  Why then does the sane, intelligent MacDonald have to be assumed to then done the insane unmedical, unintelligent thing of an injury to a place which is so outlandish for the doctors to say he cannot tell the medical consequences of doing that to yourself, and that all the doctors in this first two categories said there are numerous other places which, at least to a layman, is thinking about throwing off the investigators, throwing off the detectives, would seem rather serious and that is other places in the stomach, the abdomen area, the stomach area which would seem graver than they really were but which had no problem as far as being unable to anticipate what the medical consequences would be.
     Then you have added to not only the government's two doctors, you have two surgeons come in on behalf of the accused here, Doctors Manson and McGann, and tell us that they as surgeons concur entirely with the government's witnesses, that a doctor would not inflict a injury at this point.  By the way I think that one of the things that sticks in my mind about this subject, is how government's counsel made a rather gruesome moment and asked Doctor McGann, I think it was, well, couldn't you do this, in being aware of the danger of the medical consequences, insert the knife ever so slowing into one's body to make sure you didn't reach the liver or the diaphragm, or maybe even the corner of the heart?  And I thought it was rather interesting that a surgeon who is so used to what I consider to be a rather gruesome thing, Doctor McGann winced and said no, no, you couldn't do it.  It wouldn't make any difference because you can't tell where the moving, breathing, living liver is going to be at any given time.  So as far as that, it seems to me overwhelming medical testimony from both the government's qualified witnesses and the defense qualified witnesses that this would not be an injury that MacDonald could, if he was in his sane mind, intentionally inflict upon himself because it was utterlly dangerous, possibly fatal, and since he was not trying to dispose of himself, as anyone believes, therefore it would not be the place to do it.  So -- as far as Doctor Fisher is concerned, he clearly contradicts the government's own doctors and Doctor McGann and Manson, I can only say that his error is in terms, as he used in his own words, being misled by the information been given to him prior to coming to this inquiry, as to where the wound took place and where the wound actually entered Captain MacDonald's body.  This substantially places in doubt, I think, his judgement in this matter.  It seems to me this failure to actually come out and 100% concede, you know, that error, however, reflects upon the fixedness of his position.  I don't think he took a very factual position with us.  He did not really although admittedly shown the fact that he was five and a half inches wrong about where the injury was, and that in fact, although he quite correctly said in the right lower hand corner here you can't hit the diaphragm and the liver.  You don't touch the corner of the heart.  But he had to concede that over here where Captain MacDonald's injury was, three inches off mid-sternum.  With that injury those organs were in danger.  Doctor Fisher, as a pathologist, deals with dead bodies all the time, apparently did not think that was still the kind of injury that all the other doctors thought it was.  In my judgment, unbalanced, the conclusion that a reasonble investigator would arrive at, is that one would find very difficult to attack the motives of Straub, Jacobson, McGann and Manson, but a fourth came in and lied, or that the four are medically wrong, and that only Doctor Fisher, who, so overwhelmingly accurate, who was so overwhelmingly impressive by his accuracy, should be considered as outdoing them.  I'm not impressed that way.  I don't really feel that Doctor Fisher's testimony merits the rejection of the other witnesses, and in doing so, in not rejecting that testimony, it places extreme doubt on the concept of the feigned injury.
     Now I also want to take just a couple of other, what I think are relatively minor points in this regard, to the staging of the scene, and to the inconsistencies in the theory of the sane man.  I am very much concerned as to why, if Doctor MacDonald was sane at the time, and premeditatingly he belted Kimberly with the club, because, I would think, you know, if you knew anything about MacDonald, and let's assume he was doing in his children, I would find it a little hard to believe he'd take the long slow process, you know.  He had all those knives around.  Obviously he carried three knives and one club.  It doesn't seem to require much to expect him to take one large step to grab the child and to do her in with a knife.  I mean why would he, you know, batter her -- in the same kind of position?
     Where is there anything at all in this case to support the concept that since the age of 14 MacDonald has ever treated Colette MacDonald with the kind of violent, force, assault as was manifest in this case?  Where is there any evidence in this case whatsoever, from the date of the birth of each of the children, from any witness, that Jeff MacDonald ever treated any of his children with any form of physical violence?  Where is there anything at all to support the sheerest kind of speculation of how MacDonald, if he was sane, would have treated his children?  And in part of the theory, in one theory this morning, sir, that MacDonald was sane when he killed the second of his children, and that MacDonald was sane when he, in fact, in a sense polished off his wife by killing her when she walked in during the killing of the second child.  What is there ever to show that MacDonald resorted to this kind of outlet?  To the contrary, sir, the evidence of 12 individuals, and of two psychiatrists so overwhelmingly flies in the face of that kind of assumption, of guess, of hypothesis, of speculation, as to make it really unworthy of very serious consideration.  There just isn't any basis to say this.
     What the government has announced this morning in their theory is that MacDonald worked out some problem so trivial that it offends the mind, to think that because of the bedwetting, we are supposed to believe that these killings, the first two impulsively and then one deliberately in cold heat that took place.  And there is not a single word of evidence that in the 13 years, within the span of MacDonald's life, and Alfred Kassab, who knew him at the age of 14 to the age of 27 now, and all the other people fit the bits and pieces of his life in, that he ever behaved this way to his children and his wife.  It is a total absence at least of physical violence that is characteristic of MacDonald.  No one in the world ever said that MacDonald didn't, you know, chastise his children, didn't discipline his children, didn't disagree with his wife, didn't have the normal kind of relation, but in their relationship, their normal way, where mine might be to yell, sir, but not to strike, his would be to talk and talk.  But he did not chose to yell because it was not consistent with his personality.  Where is there anything to support that kind of conclusion that it happened?
     And in the final thing that I want to add on theory one, sir, is that if he was -- is the absence of motive for the intentional deliberate killing of his entire family.  But, of course, since the government has discounted that, sir, that they don't insist that there was a premeditated killing of all three, I don't mean to belabor it.  I do just say, sir, that it will be my argument throughout the reference to the other couple of theories I want to mention, that it is just something that actually is frightening to be considered; that an investigator would seriously take the premises that the MacDonald family was wiped out in this incredible fashion because of the wetting of the bed, provided they knew what they must have known, what they must have known now, and certainly know now about the family.  That is, I am certain that it is not beyond the ken of some individuals, albeit a rather bizarre type person, a rather strange person to get so carried away with a family dispute over bedwetting that perhaps could lead to a great tragedy.  I mean I say that's conceivable, and if you had some history, some indication, one would begin to look deeper into that theory.  But the absence of any motive that one can really place any faith in, the absence of a motive that the investigating officer would say, you know, rings true in the context of MacDonald, rings true in the context of most human beings, rings true except in the context of some very rare aberrational person, to me puts the final cabash -- if I may use that term -- on theory number one.
     Now, theory number two, I would say MacDonald killed three persons while he was insane, that is he did it, did all three of them, but he was insane.  This theory is a little easier to dispense with than the premeditated one.  That is, we probably have more objective information to deal with MacDonald's sanity than we have on almost any other single subject.  I think we have a record which is quite impressive in that regard and I think it's quite helpful in that regard.  That, as a matter of fact, I should add to the theory, while -- I'm sorry -- let me strike -- I meant to say at this point that MacDonald didn't do it in a premeditated fashion.  He did it under impulse without having thinking about it in advance and that he was sane when he did it.  He was not doing an insane act.  The insanity I will treat in the third theory.
     It seems to me the impulse again is beginning very quickly, would not really be a thing -- but again, taking the same analysis that MacDonald killed his family while impulsively acting out some anger, but he was sane when he did it.  One, how do you account for the use of four weapons?  That is, the impulsive killer ran outside, bring the stick in, because we now know there is no evidence in this case that there was any unused lumber inside the MacDonald house at all.  So therefore there's no basis to assume that he would have had this stick lying around for the impulsive killer.  There's also the fact that there is the multitude of weapons that are not identified with the house.
     Let's assume that everybody is absolutely wrong and that all three of the cutting weapons were in the MacDonald house.  Where in the impulse does one gather up the multitude of weapons?  Does that seem to be the impulsive way a sane person acts, or does the use of a single weapon seem more appropriate in the acts on an impulse?  That is, the gathering together of an arsenal in either a premeditated scheme whereby there's an attempt to delude the investigators, or is it the insane scheme of a killer who rounds up, you know, many weapons to do the killing, this is the insane premeditation that is working out?  But in the middle theory here of the impulse of the sane man just because he became outraged, just because he got frustrated, because he just worked out his hostility in a little exercise of triple homicide, murder, does he gather together four weapons, one of them which had to be outside the house, the other for which no one could find any support for having been in his house?
     And why does he even need three or four weapons for the impulse killer?
     Now, if it's an impulse killing, how does he come to have rubber gloves on?  I mean what is impulsive about putting on rubber gloves to save fingerprints?  That doesn't make any sense consistently with the term of impulse.  But the minute you start talking about deliberation to avoid being caught up as the responsible party for a given crime, you have X'd out the word impulse.  You are back to the sane premeditated theory that we've talked about, and I think adequately analyzed.
     Now, if we talk about the impulse theory, how do we account for the fact that Colette MacDonald was most likely clubbed first because of the indication of the broken forearms?  It would seem to me that if one believed that, she was shielding her face or person, shielding a child perhaps.  This would indicate that after the impulsive clubbing had taken place and Captain MacDonald had no longer impulsively acted, he went and got a knife and stabbed her.
     Again, it does not seem consistent, or it is very difficult to imagine the impulse being one that one gathers the arsenal, that goes back to the sane premeditation type of question in that case.
     If it is an impulse killing, why are there multiple injuries on Kristen?  If that is the first killing -- Colette was then stabbed -- why do we have a repetition of that kind of pattern?  Does the impulse continue indefinitely?  Does the impulse last and go from room to room to repeat these things?  It seems to me that we do not have any way of concluding that a sane man was impulsively gathering groups of weapons, putting on gloves to throw off people, then clubbing Colette.
     If you assume that this was an impulse killing, then you are talking about what happens after the killing in terms of the amount of time available to MacDonald to now prepare a delusional covering, or prepare a fake scheme to mislead people.  Now we know that if MacDonald impulsively killed his wife and screamed out, and if he was sane he had to do it and know that from that point very clearly that the Kalins and Pendlyshoks could hear and others could hear the screams.  It means he still had to have time to conceive of a scheme to cover the whole thing.  First of all he had to get rid of the weapons.  He had to move the bodies.
     He had to stage the scene in the living room.  He had to inflict the injuries on himself.  He had to dispose of the rubber gloves, and do that all awareness that the military police must have been called.  He must do that all with the awareness that somebody was bound to hear it.  He must conceive the whole thing in the limited time that was available between the time of the impulsive killing and to concoct the scheme, sir.  It seems to me, and the elaborateness of the government's theory requires one to feel that the scheme had to really defy belief, that those things happened after the impulsive killing here.
     Now there's been other things which I think perhaps in a very large fashion demolishes the idea -- oh, by the way, I really want to add to this that in this impulsive disposition afterwards to go outside too, because that's part of the business of getting rid of the weapons, going out of the house.  But then what really, I think, puts the clincher on the idea that MacDonald did this impulsive act is the unanimous psychiatric opinion in this case that there is an absence of any psychiatric history, and I should further add and basis, let alone prior history, any present basis to believe of acting out frustration through impulse acts, and particularly the absence of any violence as a mechanism that MacDonald had for acting out any kind of response to frustration.  It seems to me if there was any doubt at all that Doctor Bailey and Doctor Sadoff are in complete agreement.  I doubt that.  It is really tragic, by the way, sir, that laymen, and I consider myself a layman absolutely in this category, but I thought I learned a little something from the two psychiatrists we heard in this case, could so garble up a obviously technical word, transfer it over to lay language and then push it forward to the investigating officer as a basis for making you believe that MacDonald would act this way, as I heard this morning, that the government's theory is based upon, of the things, that he was -- and I would really like to give the government's argument its full language if I can -- I'm sorry, sir, I cannot put my finger on it, but I would say that my recollection of the government's argument was that MacDonald was going to work out, you know, this hostility, this frustration that he had.  Oh, yes, that because MacDonald -- I think it's worthy of repetition here -- the government says that this happened because MacDonald was action-oriented.
     Well, sir, there couldn't be anything clearer in my mind, and I trust that it is clear to everyone else who's been here and heard the two psychiatrists, and if one did not hear the two psychiatrists, they heard only the investigating officer's witness, Doctor Bailey, that the term action-oriented referred to Captain MacDonald can't in any conceivable fashion be used to say violence.  That is, Doctor Bailey went to an enormous length to explain very precisely that what action-oriented meant was not killing, but he would undertake to do tasks; and if we need to define the word task, I specifically recall asking Doctor Bailey, now you don't mean the task of going out and murdering or slaughtering your family.  Doctor Bailey did not hesitate in rejecting that as a definition of what he meant by task, but he meant that he undertook to work in his medical practice, to work on patients, to devote himself to patients, to go out and play basketball, or orient himself to sports, to undertake to do something.  That and the biggest phrase which is associated with all this is normal, the normal kind of response within normal limits is the phrase.  That is we are not talking about abnormal responses to undertake the way you work out your frustrations by the task of slaughtering your family.  I mean that is completely and utterly not in this case.  All that it represents is a misunderstanding and a misuse of psychiatric language.  To twist and use the phrase like action-oriented to say, well, he's action-oriented, and what does he do when he...?  He slaughters his family.  It is really, I think, a shame, that the psychiatric testimony has been misused or misunderstood in that fashion.  It is clear to us that there could have been no impulse killing here of the family on the basis of nothing else other than the psychiatric tests which is unaninous that this man does not work out any kind of life's normal problems like you had in, you know, the child in the bed, let alone greater problem in any fashion resembling violence, in any fashion resembling anything but the taking up of the normal response, a normal range of response, that is going out and working extra hard at your job, going out and putting a lot of energy into sports activity.
     We've a third theory that the government investigation should have led into, I think, is that -- and that is the one that seems -- got a lot of recognition today by the government -- is the one of the temporary insanity on the part of MacDonald being responsible for some or all of the killings in this case.  The report signed by the three psychiatrists at Walter Reed says in language, which I think no one would say is equivocal or in any way hedges, that Captain MacDonald on February 17th was sane.  He did not suffer from mental illness, mental defect or derangement, and on the form there is not the slightest suggestion, sir, that he had a form of temporary insanity, no matter how you play the language.  The government's argument this morning, sir, just says that the man went into a blind, insane rage.  They didn't use the word insane.  Just because the government hedged on its own argument because they knew that the witnesses in this case preclude such a conclusion.  It is clear, sir, that the psychiatrists for both sides have rejected temporary insanity.  There is not the slightest suggestion in the report of the physicians held to read that there was any form of temporary loss of sane conditions.  There is no caveat.  There is no hesitation in that part of the report.  If it declined to state other things and to answer other questions, they did not decline on the question of sanity on a given date.
     There is no motive here, sir.  There is no explanation of how would the temporary insanity come about.  We are asked to believe, according to the theory stated this morning, that the temporary insanity was the product of disagreement over urinating in the bed.  First of all, it's an episode that happened several years before with the older child.  It was an episode which this family rather proudly, Mrs. MacDonald saying to the other members of the class, being able to feel free enough, secure enough, and as a person that has been threatened by her husband's medical knowledge, but going, according to MacDonald, was his idea that the doctor, the professor in her class, was an appropriate source of information.  Where is the feeling that this is some enormous problem, that is one that is a problem with the MacDonalds?  Why is this utterly defies belief that temporary insanity, in this particular man anyway, and probably in the overwhelming number of human beings, would not possibly, could not possibly be brought about by the urinating-on-the-bed concept.
     Now I do want to say one thing about insanity in this case, and we've had some evidence of insanity.  As a matter of fact, we've had, I think, three instances that I recall of, of what I think is the insanity of other people in this theory in real proximity to this place in the hearing today.  One is the story by Mrs. Daw; and two, of the statements by Mr. Ivory here.  As I say, I do not give the Daw story any importance in the investigation, except that I do not think that Mrs. Daw's story can be viewed in any light than this woman's life and her own health were placed in threat over the most trivial of matters related to narcotics and drugs.
     That is, her willingness to threaten her own life.  That Mr. Ivory is willing to state here because this woman, Helena Stoeckley, is involved secretively with the police; that he is positive and willing to state under oath that he believes her life is in jeopardy.  To me, sir, that indicates quite clearly that there's no evidence of insanity in MacDonald.  We have heard insanity of the greatest type described to us in people who would murder Helena Stoeckley, would threaten Mrs. Daw's life, the type of individual we have heard referred to, makes it perfectly clear that while insanity may be readily there in many people, contrary distinctions to that should be drawn from MacDonald where we are not just sort of speculating as to where murder is possible or where murder can be done.  We have a life's history laid out to us that shows there is no evidence of insanity.  There is no evidence of the kind of background responses, of anything that supports the theory of temporary insanity from anyone.
     I would say also that there is evidence here of great malice.  There is evidence here of rage and anger in the types of crimes committed against the MacDonalds, that indicates in my mind we are talking about insanity of other people.  I'd also make passing reference, by the way -- we are talking about the motives and insanity of others -- the testimony of Captain Williams should not, I trust, because it did not necessarily concern hours and hours of evidence in this case.
     Captain Williams, whose office I think Captain MacDonald was associated, who testified to what happened in mid-January of 1970 as a result of the lecture given to Special Forces troops about the lack, among other things, the lack of confidential relationship in revealing activities about abusing drugs when told to doctors.  And that Captain Williams testified here, sir, under oath, that he was given the impression, and felt very genuinely about the question that some of the men believed that Captain MacDonald was a fink, that he did turn them in, or was the kind of man, if he had not done so, who would turn the men in.  And I suggest, sir, if we're talking about insanity, while we reject it, I think, entirely in a logical theory to proceed on as to MacDonald, that it remains very largely a part of this case, because of what we know of the conduct of other people.
     Now there is a fourth theory here that I really want to address myself to very briefly, because I think the government has insinuated this theory in portions of its case, although it did not state so this morning, and since I do not know whether on reflection the record of this case, the investigating officer may want to consider this matter, and that is Mrs. MacDonald was responsible for some of the murders -- that is, I will even go a little further and say that she in fact, under this theory is responsible for the murders of the children, and that Captain MacDonald killed her in response to that.  As a matter of fact, the question was in a number of ways raised with different witnesses.  I just want to treat it in this fashion.
     One of the most astonishing pieces of evidence in this case, which precludes that Captain MacDonald is responsible for the killings of his family, and also precludes Mrs. MacDonald from being responsible in this regard was the evidence from Janice Pendlyshok that she heard three screams, three sets of voices screaming together, and there was absolutely no doubt, in my judgment, Mrs. Pendlyshok was in no way impeached, no way was discredited, struck me as being not a hysterical person, but that she heard Colette and the children's voices together.  Now how -- now one might conceive and say that Mrs. MacDonald, also in a Machiavellian way was screaming simultaneously as she was killing her children, but how did she manage to do both of them at the same time.  Did she get them both at the same place; again, one finds it very difficult to establish that as a credible approach to this, but consider another thing.  If Mrs. MacDonald did it, you have the problem that was faced with Captain MacDonald doing it -- the multiplicity of weapons being used.  Again, it seems that the government has presented no plausible basis, and the investigating officer, I do not think, will find in the record on this analysis any plausible basis to believe that Mrs. MacDonald assembled the multitude of the weapons, that no one seems to have found in the house.  As a matter of fact, there is no reason for anyone to have hidden the fact that she took a kitchen weapon and killed her own family, yet there is no evidence to support or justify the stance or any way relate the idea of her going about this scheme of bringing those weapons together.
     Now, if Mrs. MacDonald is supposed to be responsible for this, you know, what about the movement of the bodies?  How does one account for her moving the bodies?  Why would she, you know, do this?  You know, it goes back to the idea that perhaps Captain MacDonald in his attempt to save face has rearranged things to sort of cover up the whole episode of Mrs. MacDonald.  But perhaps the most, to me, telling single factor in this whole story or theory of Mrs. MacDonald is that what happened to her and what was she doing on 2-16 and 2-17?
     You have the witness, whom the government never bothered to find, which was Mrs. Krystia, the lady who was in school, the last person outside of Captain MacDonald, to see Colette MacDonald, who remembers driving home from school with her that night, who described in most touching terms, I thought, stopping at the market to buy milk for her children.  That is a woman who is about to go home and slaughter them.  A woman who is mercurial, for a moment being a thoughtful mother, buying milk for her family so the children should not be without it, because it was necessary for the bottles of Kristy because she got up at night; and the next thought the same woman flip-flopping 180 degrees and slaughtering the children.  I don't think that Mrs Krystia's testimony raised such a possibility of them.  We have Mrs. Krystia's testimony about the state of mind of Mrs. MacDonald, you know, how Mrs Krystia wanted to pursue a sense of friendship with her because she admired her stability.  She admired her ability to cope with things.  She admired her respect and the love that she seemed to be expressing toward her family and her children, and she said, you know, when she left Mrs. MacDonald that night, that as far as a reasonably perceptive human being could be, she left a happy and loving woman, going into 544 Castle Drive.  I think that rejects that entirely.
     We have here, and the government accepted it this morning, that the events that took place in the house probably took place, sitting around and talking, the watching of the TV, television together.  And one ought to be aware further that there has clearly been eliminated the possibility of some external stimulant having caused Mrs. MacDonald to change her normal life long pattern.  There is no evidence of alcohol in her system, no evidence of drugs in her system, in a way to effect that kind of condition or change in her.
     It finally brings us, I think, sir, to the government's own theory this morning, and that theory, sir, I find it very, very difficult to see anything more than it represents perhaps a fiction writer's idea of a story, but if I were an editor reviewing the plot of the story, I would have to send it back with the suggestion that all of the data that you put into the story out the people so utterly contradicts what the people do, that is the solution by the fact finder, that the readers won't buy the novel because the reader won't believe that you've given all the data here, and the conclusion doesn't fit it.  I think in a sense that one of the most important observations in my mind about the case is that while most psychiatrists commonly take an interview of several hours, even several days, about the accused, and they used his life history as written by Doctor Heller's article, and Doctor Bailey and Doctor Sadoff agreed that taking his life history is quite critical; that while they all use the history and rely upon the events in earlier life of the person to see how he copes with today's life and today's problems; that we did better in this case than any psychiatrist can do in his interviews, but we produced such, as I said before, individuals who have been with MacDonald and on the stage of his life for the last thirteen years.  That there's no unaccounted-for area of his life.
     There is his young manhood in Long Island.  There is his college and medical school activities, when he was married with his wife and together with her.  People seen them together.
     We have the views of people in the military seeing him.  We covered almost week by week and almost month by month.  How is it that the psychiatrists, perhaps, have been deceived?
     That is, some fact of prior conduct, some fact about outlook, some fact about violence, some fact about viciousness between these people, you know, have been omitted and being hidden from the psychiatrists, that no one who has come here can give us any further enlightenment to the contrary.  It really, I think, is a credit to the psychiatrists who worked on this case, that the fifteen or so witnesses who have spanned the 13 years of Captain MacDonald's life that we can give evidence about, all had absolutely confirmed the observations of the psychiatrists.  That is, sir, that every conclusion the psychiatrists arrived at over the weeks of their work is confirmed by the external evidence of fifteen witnesses who have talked about Captain MacDonald.  Now I don't think that it should be viewed as character evidence.  These people were really not called by us and did not give character testimony.
     Character testimony is the kind of testimony in the law that we say if a person has done bad things in his life, is really a bad actor.  Other people will noise it about, they will talk about it.
     And therefore when you ask a witness what is his reputation for being a peaceful and law-abiding citizen, it is presumed -- and the law's presumption is a pretty good one, it has worked over about 500 years in Anglo-Saxon law and Anglo-American law -- and the presumption is that a bad actor doesn't live a lifetime without somebody perceiving and talking about the fact, that he's got, you know, a background of bad traits.  So you come in and you will say, well, I've never heard bad things about this man, and therefore we assume that he is not given to bad acts.  But we don't have to deal with that kind of testimony.  That will be character testimony, and it's good testimony.  But we have testimony so far superior to that, that it really places it in a very extraordinary high value level in terms of weighing the various aspects of this case.
     I want to suggest to the investigating officer in that regard that there is a unique span of people who have made these observations.  That is, you can fool some of the people some of the time, but not all of them all of the time, and one would have to believe that Jeffrey R. MacDonald has fooled persons all the way from Colonel Kingston, who was his superior officer for a period of time, through the nice lady who came down from New York who was a patient in the hospital, and just because she had had enough major operations and seen enough doctors, perceived and watched this man, through all kinds of physicians and medical students and undergraduates who served with him, through all kinds of professional soldiers, men with command training, enlisted men with important responsibilities.  All of these people looking at this man from a really superior variety of angles, having do deal with him at different levels.
     Some dealing with him as his peers, some dealing with him as superiors, some dealing with him as people responsible to him, consistently point out the omission of violence, of anger, of hostility.  That is what it seems to me is shown here, through the totality of the psychiatric testimony in this case.  That there is no pent-up hostility, or rage, and that is that the government's argument this morning seems to boil down to.  I would be delighted to hear, because I, in my own memory, and I have searched it quite deeply, sir, am not able to find evidence of pent-up hostility and rage, and if the government's stated theory to this investigation that it must, that this investigation must recommend MacDonald be held for court-martial because he released this pent-up rage and anger that he had in this incredible outburst of this torrent of violence.  How is it possible that the psychiatrists are fooled?  How is it possible that fifteen people who in different postures have observed the man over the great length of time, are all deceived, people who see him in intimate capacities and in professional capacities, on duty, off duty, on guard,off guard?  One has to find one conclusion only if he is to believe the government's theory of the pent-up rage and hostility, and that is that we have had the testimony of a bunch of fools.  That all of these people who have served with him in the service, in the medical schools, and knew him as a child, are fools.  That they have never seen a man holding back tension.  They've never seen a man who is living on a powder keg of dynamite, or that a man who has for fourteen years been building up a single powder key of dynamite.  We have to assume that if they weren't big fools, that many of them were liars then, because they have not told us of episodes which could shed light.  There isn't any basis for a finding of foolishness or of perjury on the parts of people who have come here from great distances, to make personal inconvenience, to describe this kind of background.
     And when the investigating officer concludes, which I think the evidence compels one to conclude, that there is no evidence that this man worked, fashion, had a life style, was psychiatrically oriented toward holding back things inside, bottling up, stopping it up, sort of like a balloon that grows bigger and bigger, then bursts; when you find no basis in Doctor Bailey and Doctor Sadoff's testimony of the same balloon that the government seeks to blowup, this pricks and collapses the way, I think, the theory of their case must also collapse.
     In regard to psychiatric testimony, in my judgment, Doctor Sadoff and Doctor Bailey are not in disagreement.  There is testimony in the record, Doctor Sadoff testified very interestingly in response to your question, sir, in fact, I am positive it was the investigating officer's question, when you inquired as to why there was a separate branch or necessity of a separate branch in psychiatry known as forensic psychiatry.  And I think that taking Doctor Sadoff's reply together with what Doctor Bailey has said, and taken together with the fact that Doctor Bailey and his colleagues contributed to their own professionalism, sought the advice of a professional forensic psychiatrist to guide them in techniques, you know, have said that forensic psychiatrist is in the position, as Doctor Bailey admits many other people are in the position of having to must make certain decisions and predictions about people; that in his judgment he would not do so, and he did not think, in fact, that psychiatrists should do so.
     But at no time did he suggest for a moment, sir, that he found Doctor Sadoff to be unqualified, to be in any way distorted.  As a matter of fact, it is interesting that Doctor Bailey used the psychological tests prepared by the defense in this case because he felt the people who did them to be credible and acceptable.  What you really have here ultimately when you take Doctor Bailey's testimony as a whole is that both of these gentlemen have testified as to the two sides of the same coin, because while Doctor Sadoff is willing, as a forensic psychiatrist, who, because of his professional responsibility, said yes, I am prepared, because it is my training and my belief that I can make reasonably educated, trained judgment about people and their capabilities to commit horrible violence.  Doctor Bailey says well, I don't think I can do that.  But, sir, if you will recall just two answers that Doctor Bailey gave on cross-examination, you will find that while he will not make the ultimate judgment, and he says specifically he kicked the ball over to the investigating officer, the judgment that he could make was this -- that he, Doctor Bailey, like Doctor Sadoff, did not find that there any evidence of pent-up violence.  He did not see that violence was an outlet used by Captain MacDonald.  I specifically wrote the question out for myself so I would know my formulation to give Doctor Bailey what I hoped would be the opportunity to at least integrate his testimony with Doctor Sadoff's testimony, and Doctor Bailey, in a very careful thoughtout manner that he used, said he did not find any evidence that MacDonald worked out problems, that MacDonald had pent-up violence, or that he did things by expressing violence.  The second thing that Doctor Sadoff and Doctor Bailey are, I think, in absolute agreement about is that Doctor Bailey agreed yesterday on cross-examination that he did not find any evidence that Captain MacDonald was lying about the events of February 17th.
     Now, admittedly, and I sort of think it's comical to ask him, you know, is it infallible.  Of course, it's not infallible.  What he's saying is that we're trained to do this, that all psychiatrists know that people come in and try and feign mental illness, or feign insanity, but there are many people we have to deal with in that capacity it is part of their judgment to look for deception.  And as a matter of fact, the practicing of deception against the psychiatrist is used by him, as I heard Doctor Bailey tell us yesterday, as a measurement of the kind of man you are dealing with.  And Doctor Bailey's testimony, as I recall, sir, is that he did not find any deception.  Now he made a very important distinction to which I think this investigation should pay a great deal -- a great deal of weight to.  He did find, he said, a reconstruction of memory by Captain MacDonald, and that is he said on details, some big and some small -- little, I think was the word he used exactly -- that Captain MacDonald had reconstructed.  And then we asked him what he meant, and he was again in his very own particular cautiously-phrased language, heard by me to say I don't mean he was fabricating, but that he had to force an attempt to recall things.  And to me, sir, that is one of the most significant findings that we will draw from the case for this reason.  There are a lot of unexplained facts.  There are a lot of things which no matter how long this inquiry goes on we will not be able, without the assistance of people whom we do not yet have before us, and will probably only by the power of arrest ever have, know the answers to.  But the point is that if there seems to be at any point a single discrepancy or two, and we are talking about minor matters, some unexplainable fact about the case, and one might say well, might MacDonald have done something else on this detail.  The answer is he might have.  There's no suggestion by Captain MacDonald or anyone else associated with his defense, or who testified for him that that could have happened.
     But Doctor Bailey explained.  He explained that in a normal -- and that was the word he adopted -- it was a normal response to have avoided thinking about the details of the 17th, and as far as we know, aside from the three rather cursory interviews in the hospital by the investigators, that not until the CID called Captain MacDonald in on the 6th of April, and Doctor Bailey said he placed a great deal of attention to that fact.  It was very interesting again, the normal response to that kind of horrible event that happened, he told us yesterday, sir, that it was consistent with having to force the reconstruction of the facts, but that in no way did he find there was a fabrication of this story.  Well, sir, it seem to me that it's hard to avoid the same conclusion that Doctor Sadoff arrived at.  Sadoff found that the story of the explanation, description of the events given by Captain MacDonald of the 17th, he found them to also be without deception, without any kind of lying.
     Now that leaves one other possibility, and that is perhaps, I think, Colonel Rock, you, yourself, have inquired at some point of the psychiatrist, could he have done this whole thing in some kind of psychotic stage, some kind of insane stage.  Well, the answer of the psychiatrists is likewise answered that question for us.  That Doctor Bailey and his two colleagues and Doctor Sadoff say that there is no evidence, they can find nothing to support the idea that MacDonald would go into an insane rage.  And you have fifteen persons from the various spectrums referred to, to say over a period of thirteen years they found no basis to believe that this man does go into an insane rage.  It seems to me that that kind of testimony so totally deflates whatever small credence could be given to the contrived theory that was explained to us this morning, that on the psychiatric testimony we would be able to make a finding that there is no basis for recommending Captain MacDonald for court-martial.

COL ROCK:  We'll take an appropriate recess so the reporter may rest.

(The hearing recessed at 1340 hours, 11 September 1970.)

(The hearing reopened at 1347 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 break are currently in the hearing room.  Proceed, counselor.

MR. SEGAL:  Now, there is another last comment I want to make at this junction about psychiatric testimony, I feel is one of the helpful aspects of the investigation that we have had; and that again I would rely upon Doctor Bailey's discussion yesterday about reconstructed testimony, reconstructed memory, rather, on the part of Captain MacDonald.
     As I said before, in my judgment there is conceivably some very minor points of difference between what Captain MacDonald said on April the 6th, 1970, when he spoke to the CID agents, and they told him to come in on the pretext of talking about his furniture, and testimony given in these proceedings.  Again, I think it is undisputed that there's no one here that suggests for a moment that MacDonald has lied about the idea that he never thought about the totality, the sequence and completeness of the events that took place on 17 February until he was confronted with the CID on the 6th of April.  And again his explanation for not having done so, that is, the explanation there he says he put it out of his mind, he was trying to avoid thinking about it, was accepted by both Doctor Bailey and Doctor Sadoff as being a normal response, a normal way of handling the nightmarish tragedy of those dates.  Therefore it also became significant that it was not until after the CID interview, taken on a spontaneous situation as far as MacDonald was concerned, without any pre-thinking out or attempt to lay out in chronological fashion the events of the 17th.  It was not until Captain Douthat entered the matter shortly thereafter and directed Captain MacDonald to begin to try and think through a chronology, that one gets the thorough application of Captain MacDonald's mental powers in trying to put the facts together.  And even so, even so, we know that even that process is not totally a free recalled process, that is he is not able to spontaneously tell us all the things that happened on the 17th, because as the psychiatrists told us, Doctor Bailey said he had to force up some things and make decisions about what happened rather than say I remember taking a drink, I remember Colette taking a Benadryl, because she probably did, and that kind of reconstruction seems to me should totally and utterly satisfy whatever small question can be raised about the alleged discrepancy or discrepancies on the 6th of April until the time that we heard Captain MacDonald in these proceedings.
     And again, in trying to evaluate that, one must consider again, and I'm now being redundant, but I think that it's because the importance of expertise in this area is not to be underestimated, that our experts have said, if I may be permitted the liberty of putting our psychiatrists into layman's language, they didn't have any basis to believe that MacDonald lied about what he said happened on the 17th.
     Now we do that, we recognize that the experts have something to offer to us.  They weren't just here beating the air.  And we recognize that their explanation really deals exactly with the problem perhaps discrepancies, then we have to say the government theory is that it is constructed around alleged inability to explain this thing about a phone or this position about the towel does not at all trouble me for a moment.  It certainly doesn't say to me that any standard of law that the investigating officer is compelled to adhere to has been met by the government, because the accused seems to have a very apparently remote discrepancy.
     Now, it seems, however, that just taking the government's evidence alone, and I draw to the conclusion on that, that if you were to say, and I won't look at the second part of the record in this case, I won't look at anything that the witnesses for the accused have said, you would have to say that it does by no means appear on its face that Captain MacDonald was responsible for three murders.  What it appears is that we have an enormous amount of unanswered questions about what happened in a sense that we don't know about some details and some things happening in what fashion.  No one has explained them to us.  We know we have the deaths.  We know we have the multiple weapons that were used.  We know we have confused circumstances here.  But where is the clear on its face readily apparent evidence that MacDonald did these things?  The readily apparent evidence that the government talks about in its theory is that MacDonald didn't explain and the other things -- in other words, if I may say so, the government's theory this morning is because MacDonald is alive and not dead, he must be responsible.  Because MacDonald cannot explain to us satisfactorily, to the prosecution, why such and such happened, or it was not found, or was not seen, he must be guilty.  That, sir, is not the legal standard.  That MacDonald can't explain away the questions the prosecution wants to ask; only by ignoring what the psychiatrists tell us and other people tell us; that MacDonald can't explain away, therefore they have made it clear and apparent evidence rule that says MacDonald has committed the crimes.  But I say to you, you have more than that, sir.  It is more clear than that.  You have much more than that.  You have, in addition to the government's evidence, the evidence of the accused himself.  In other words, the government -- if we may draw this picture -- is dealing with the scales of justice and it is their burden to put enough evidence into the weight to raise the scales of justice to a point which says they made a prima facie case.  But in this case we have been allowed to put in the defense evidence, and while I say on the first hand the government has not put in the scales to anywhere bring it to the level of a prima facie case, let alone to beyond a reasonable doubt, the defense has more than counterweighed, counter balanced whatever questions or suppositions the government has built its theory on by his own testimony and evidence.  I would say, sir, that Mr. Posey's testimony is entirely intact today and of a normal significance in view of the supplemental interviews of Helena Stoeckley by Mr. Ivory.  It is really astonishing to me, sir, that we could say anything other than the fact that it is a fact that hangs out in bright lights, that although the local FBI agents, who are still here knew that she was fingerprinted, knew that she was brought in, knew that her prints were sent someplace for the investigation, say to Mr. Ivory that there is no interview in their files that they took that resembles the story she has told Posey, the story she said in the presence of Paul Bowman, the story she has told Mr. Ivory.  And I do not think that we can accept the idea that perhaps some other FBI agents who were no longer available to the office heard that interview because that would be illogical in my mind because they thought that the local agents knew all about who was picked up locally, who was fingerprinted, and whose prints were sent forward, and not know the explanation for their whereabouts.  It is extremely important, it seems to me, that Mr. Posey's testimony stands so clearly alongside of the story that we know from Captain MacDonald in this case.  That is the people, the description, the girl with the blonde hair, the floppy hat and the boots.  There is sometimes matters that are just coincidental, that happen, but one is defied in trying to understand how Miss Stoeckley could have anyone believe that one, she couldn't remember where she was between midnight and four a.m. under the influence of marijuana.  I would state sir, again, that Mr. Ivory has stated in his testimony that there is no evidence whatsoever that marijuana in any way impairs the ability to remember.  We have Posey's testimony that on different occasions that she told of using different drugs; mescaline one time which does not affect the memory; LSD on another time which does in fact clearly affect her memory.  She in no way had by her statements to Mr. Ivory we heard in this courtroom, without having the cross-examination, indicated that she can discount or cause this investigation to discount Posey's testimony.  You have Mr. Sutton's testimony of an unusual episode in Rick's bar later on the same night before he was ever aware of the MacDonald killings; and while perhaps Mr. Grebner has told the prosecution and they have stated to us, no Scotty Suterland belongs to the CID, or perhaps even a PMI investigator, there is nobody who sat here and said they found there's no such soldier on this post who is not connected either with the 118th MP Battalion or of some other investigative unit or any other activity, or that there's just a soldier who may have overstated what his activities were.  But Mr. Sutton told us that he reported it to him, that he reported it subsequently to other authorities, that there is the astonishing comparison of the candle episode, of the clothing, of the departure from Rick's bar with a black man going out wearing a fatigue jacket.  All of these things.  There were no newspaper stories at that juncture that he had read or seen, did not know about it until the following day, that all this fits in so consistently to indicate that this investigation has not heard evidence from the government to overcome the defense evidence or witnesses who could be found by people who do not have the authority of police behind them, cannot call upon the Fayetteville police to do errands for them, but you can come out and come up with people as far as this inquiry knows are sane, honest, citizens who, at some personal risk will come forward and give us evidence.  Does that not serve to certainly cast stones in the opposite scale away from any possibility of raising the government's case to a prima facie level?
     I think it does.  I think it's impossible to discard it, and this investigation has aided us in giving weight to that by obtaining Miss Stokely's testimony through Mr. Ivory.
     Now the government says that Captain MacDonald left a lot of unanswered questions in the case.  I would submit the unanswered questions are the burden of the government to answer.  Why have they not answered the following matter, sir.  To whom does the hairbrush belong to, and whose hairs were on that hairbrush found in the MacDonald house?  Why is it that the wax spots found in the house which are consistent with Captain MacDonald's story of the girl carrying the candle, or possibly a flickering light, but apparently a candle, why did the wax spots turn up negative when compared with candles in the MacDonald house?  How do they explain the existence of the wax spots?  How do they explain the fact that twelve to fourteen military policemen, and Womack Army Hospital personnel, passed through the MacDonald house like a herd of cattle going back and forth in the rooms, and that the only thing the CID found in regard to the travel of those twelve to fourteen people were a couple of blades of grass, but no one saw as a result of the travel back and forth, of the stretcher bearers rolling it down the hallway, bringing it in, coming in, walking across the lawn, any wet spots in the MacDonald house with all those footsteps?  It is perfectly apparent that that is one of the blind alleys that we were led down because the government never chose to establish -- and they could very easily if they thought it was really meaningful -- what the weather conditions were.  The United States Weather Bureau will be glad to tell us how much precipitation exactly there was.  It was off and on, but we don't need that because we have had numerous witnesses who described that off and on rain, not a soaking shower down to the muddy depths of the soil here, nothing to indicate at all that one would naturally have found it.  Now maybe we did have that rain.  I don't know, sir.  I have no way of telling this inquiry whether we had that kind of rain, but the government had the ability to show that that really was a natural consequence of the amount of rain there was that night.  But there wasn't a witness to support it.  There was an off and on drizzle, and there's no reason to believe that if 12 to 14 MPs and Womack Army Hospital personnel wouldn't leave a wet spot, but maybe a couple blades of grass.  If one is to believe that four individuals that Captain MacDonald described would leave any more evidence behind them then did the 12 to 14 Army personnel.
     Now who do the unidentified fingerprints belong to?  We have had only through the insistence of the investigating officer at least an attempt, a serious attempt to using the facilities of the FBI to answer some of those questions, and the FBI report tells us they are still not able, on the basis of their present records, to identify those fingerprints.  Where is the government's solution to that?  Does Captain MacDonald have to answer who those fingerprints belong to?  As a matter of fact, we have shown the pattern of life in that house as to the limited number of individuals who were in there.  There's no cleaning lady in there. There's no hoards of people coming through there.  There's Captain MacDonald, his wife, and his children.  Who do those prints belong to?  What is the government's explanation for that?  Who moved the pot on the floor?  Now, sir, the government went to great lengths to ridicule the evidence that was given by Specialist Tevere, a military policeman that they had called.  Tevere is the witness who identified the -- testified to the unidentified man coming through the living room, moving the pot, sitting down on the sofa and getting off the sofa.  I think it was unfortunate -- the attempt that was made to suggest it was really one of the stretcher bearers from Womack, because nobody has yet found a Womack Army Hospital person who wore dungarees that night, and as a matter of fact, one would have thought that the MPs would have recognized another military person, a soldier.  It is also rather strange to think that a medic who's been sent there on an emergency call, his vehicle has been lost, so he had to be found by MPs, and comes in, you know, and sits on the sofa.  I mean that just doesn't follow at all under any reasonable interpretation of the facts.  Now, the government made great light of the fact that was ridiculous.  Nobody moved that pot, it was part of MacDonald's staging, but he didn't do a good job because it was really upright.  Not only did Specialist Tevere tell us, sir, the pot was lying on its side, but yesterday the investigating officer marked the statement of Specialist Dickerson, and Specialist Dickerson's statement says the pot was on its side, and it's consistent with Tevere, and it's consistent with the explanation of how it got to be that way.  Let the government explain how the pot got right side up, then, in the various photographs that the CID prepared.  I don't know the answer, sir, but I say the burden is not on the defendant, but the defendant has raised into the scales here evidence which casts great doubt on every aspect of the government's theory.  In their story of the staging of the pot episode, how do they explain Tevere's statement?  How do they explain MP Dickerson's statement?
     Now who were the persons that Lieutenant and Mrs. Casper heard at that time of night going in the direction that they were going?  Who did the voices belong to and why were they there?
     I don't know what weight, if any, should be given to our lady friend who appeared here out of the blue, and we saw what her statement was apparently two individuals back around February 17th.  Whether she did hear voices that night and now doesn't want to be involved in this matter, disclaims it, but there certainly was evidence in the record here that at some point there was considerable amount of talk from her, that she heard voices, also consistent with the Casper family at the time.  How does the government explain Mrs. Pendlyshok's testimony that she heard the woman's voice and the two children's voices crying out at the same time, simultaneously, when she awoke early in the morning of February 17th?  Mrs. Pendlyshok indicates consistently with the testimony of Captain MacDonald.  MacDonald heard first his wife calling "Jeff, Jeff, Jeff, help me.  Why, are they doing this to me?" and a child's voice crying "Daddy, Daddy, Daddy."  And Mrs. Pendlyshok, you know, in no way being able to be reached by anybody, be influenced by anyone, tells us she heard the voices also at the same time.  Now how does the government account for the simultaneous cries of two children and woman?
     I had thought at some length that I would perhaps go and try to answer or sum up the questions the government seem to raise this morning itself, but I find that such a speculative exercise, I'll just treat one.  The government seems to be very confused as to how Kristen's AB blood came on the Esquire magazine in the living room, assuming that it was her blood.
     The explanation that makes sense is simply the one that the contamination from the weapons that were used to kill her, or to wound her first, was the contamination that was contained on the weapons that were then brought into the living room.  That is, those weapons which were part of the attack on MacDonald had been used shortly previously to attack Kristen, and coming from that assault with the contamination of blood on it.  There's no question that's a reasonable possibility of how it got there.  It's a reasonable possibility that the stain of her blood was on the clothing of one of the attackers, that in brushing against the table in moving in on MacDonald as described first one man, and then the others, that is a reasonable explanation.  It's certainly a lot more reasonable, a lot more logical than any explanation the government has raised.
     But I do not find it useful in any way that I understand to try and deal with the speculation the government has put forth, because their burden in this case is not to make us all go out of here and wonder, you know, about the unanswered questions.  The burden is to persuade the investigating officer that a prima facie case, that is clear and apparent on the face of it, that MacDonald committed these killings, and with their evidence alone, they don't make it.  But certainly with the witnesses the defense has found and brought forth, the witnesses that the investigating officer has assisted and brought forward of his own, the government with little evidence they are able to give as hard evidence, evidence that we can deal with and build upon in logical fashion until we reach the plateau that says there is a clear and prima facie case.  Maybe not beyond reasonable doubt but enough to justify court-martial.  None of it is there and it is pulled away by the counter-evidence the rest of us have developed.
     I have given considerable thought, sir, as to whether the government, if this case were held for court-martial, could do more, could make out better than they have made out here in terms of their case, and the inevitable conclusion that anyone must arrive at is the government will have less evidence in a court-martial proceedings that it could produce here in this hearing because we have permitted a substantial amount of hearsay evidence; we have permitted collateral testimony, and the testimony of Mr. Hawkins about what happened on Long Island, a good bit of things were let in here because we were functioning in part in that grand jury role that this investigation has.  But we know that the government could not get that in.
     It would be irrelevant and it would be improper to let it in, and we don't assume that any law officer would allow it to happen.  Therefore, having been given the widest latitude to both sides, of course, but having been given the widest latitude, what is the hard evidence that the government can come up with that says this is clear proof that MacDonald did it, this is a motive of why he did it, that anyone could put any stock in to make any decision on.  I don't find that in existence at all in this particular argument put forth by the government.
     I was very interested in the government's argument, and I will touch just one or two other points on this as to the matter about the strings from the blue garment.  Why weren't they shedding all over the house?  I have paid particular attention, sir, perhaps in a very surreptitious fashion to the handling of that garment by all parties here from the times it was here earlier, handed about, moved around from this table to that table, to our table, and I have looked at it today when it was handed around, and I do not find on the floor of this proceeding a single thread now, and I will say I didn't find any then either, but anyone else who say he observed it is welcome to stand up now and say he saw threads fall off.  The garment was threaded again when MacDonald finally ripped it from his hands in his wife's room.  The garment gave way and produced those fibers at that time.  What is so extraordinary about the fact that the fibers and threads were under her body?  MacDonald didn't give a centimeter measurement of how much he moved the body.  He was trying to save his wife's life.  He was fighting back the medical knowledge that she was probably dead.  He was looking for desperate measures to find a sign of life.  He doesn't know how much he moved her.
     He moved her somewhat, he lifted her up, he attempted to provide -- he checked the back of her for wounds.  Why in the world would we say that a court-martial will now be held because MacDonald can't explain the fibers?  Why does the government explain it cannot show us fibers around this room, although we have shook it, we have held it up, and we have manipulated that piece of garment endlessly in these proceedings, and it is absurd to talk about MacDonald having to explain the fibers, when on the face of it the tearing of his arm and the crying frustration of seeing your wife's body on the floor should more than answer it.  It is answered again by the fact that he treated her as a physician, looking for the wounds in the back, lifting her up, the taking of the garment to cover her.  That seems to me to more than treat that problem.
     We don't have to even hope to find a single factor or any other little single factor in this case to answer as to whether the government has met its burden of proof.  There is no single factor in this case which will produce that answer, and all of the single facts they throw into the scales don't amount to the proof of a prima facie case, let alone beyond a reasonable doubt, which would have to be met in a court-martial proceeding.
     The great point -- the government makes a great point I noted also this morning about Captain MacDonald being awakened and hearing the cries of his wife and children, and how did he hear them coming so quickly together.  It seems to me to be sufficient of this, that there is no suggestion here that MacDonald actually awakened instantaneously, behind the cries.  It is a very common phenomena, I think that probably most of us here have experienced at one time or another, to have heard a sound in our sleep and then we awake to be aware of the sound.  I don't mean an hour before we heard the sound, but I am talking about there was a gap between the hearing the oral reception of the sound and making an electrical impulse from the brain and the conscious act of opening one's eyes and becoming awake, and that is more that is possible that this is exactly the occurrence which took place in the MacDonald house, but it is at least consistent and probably more logical with any theory of the government having about MacDonald waking up, you know, instantaneously with the screams.  MacDonald didn't say that.  I don't know whether he could ever say that.  If he said it, I'm not sure I would accept it as an absolute fact because none of us are able to say with certainty that the gap between our hearing knowledge of things that's going on around us when we are asleep and the period when consciousness finally is achieved.
     Sir, I would say to you only two other things and I will conclude my remarks.  We are here bound by the rule of what the evidence must be.  It is perfectly apparent that we did not see the evidence in the government's case.  As a matter of fact, every theory the prosecution has offered in their theories today, one of the insane killing first, then of the sane calculated murder to protect life and reputation, you know, presents so many gaping illogicalities in them.  I mean they were so bereft of logic, really, to accept conflicting theories in the case.  It is hard to conceive of how that meets the legal burden.  In my judgment, sir, and obviously I have a biased point of view, but I really say to the investigating officer to consider seriously that the only version of the case that substantially explains what happened, albeit not in every detail, is the one that Captain MacDonald is offering.  Captain MacDonald's version of the facts, based in part upon the reconstructed recollection, but not deception or lying, is the one that does not really defy belief.  It does not insult the logical sense or perceptions of the hearers.  It leaves questions, obviously, but MacDonald is not called upon here to prove he is innocent.  Nobody in any American or English court does that.
     The government proves their case beyond a reasonable doubt on trial.  It proves a clear and apparent burden here in this hearing.  What is clear and apparent about what the government has shown us?  It is, to me, totally defying of the logic to find both the insane killing and the sane killing on the same night.  One would find, at least expect to find, the sanity returning to this man, if it was perhaps within his capacity to have had the insane ability.
     But everything else we know about, about the man, precludes the possibility when he came to his senses of devising a sneaky, devious, disastrous scheme.  That isn't part of the man's character.  It isn't part of his psychological makeup to seek to develop some kind of scheme to throw off track people.  It just doesn't work that way.  On balance, the only argument that the government has, or the one that presented today, that these arguments on just examination, let alone reflection, the investigating officer will have, show that they are bereft of a logical pattern; that the only version of this case that makes any sense without necessarily answering every question is the one that has been told to us by the psychiatrist as being not a deception, not a lie, and that is the version of Captain MacDonald.  I think, sir, it is the appropriate decision, under the government's case alone, under the defendant's case together with the government's case, under the legal burden which must be met by the government, to render a report recommending there be no court-martial in this case.

COL ROCK:  Does the government counsel wish to rebut?

CPT SOMERS:  Yes, sir.
     Sir, I wish only to take a few minutes now to rebut a few points made by the defense.  I think I should first point out that the defense has not today in any substantial way faced the argument or theory of the government.
     First of all, the defense has forced the possible explanations of what happened on that evening in four artificial categories, each one of them having its own shortcomings, and then in, as the defense calls it, analyzing these theories, points out the problems with each of them, and has never really faced the fact that the government doesn't use one of those theories per se.  The government uses an explanation simply that fits the facts.
     Now I would like further to point out that the government, in its theory, has based its arguments on the evidence found on the scene, the testimony of the military police and other people who were present the morning of the 17th, and the statements of Captain MacDonald.
     These are all hard evidence and they are not in any way some kind of fancy.  Now I see no real point in dealing with all of the various problems that each of these theories has because, as I say, we are not dealing with these theories.  Why were four weapons used?  I think I've explained why I think four weapons were used.  I think two knives were used because they came from different sources.  I think an ice pick was used simply to increase the apparent number of personnel and the apparent senselessness of the type of killing.  Why was the scene in the south bedroom and Kimberly's bedroom staged?  I don't think that the scene in Kimberly's bedroom was staged in the same sense that the scene in the living room was.  It's staged only in the sense that the way we find Kimberly is not the way she was killed, or could not have been.  Why some other things?  Why were the gloves disposed of sloppily?
     Why were the weapons left strewn about?  Because this was not a long premeditated act.  It was an act or a series of acts which occurred unexpectedly, and Captain MacDonald had a limited amount of time to deal with them and was not dealing with them in the most intellectual state of mind he's ever been in, and was dealing then with factors so numerous, such as various blood stains, that he could not, or could anyone have reconciled them all at that point.
     Now, I think it is worth talking for just a moment about the doctors and the testimony concerning the injuries that Captain MacDonald sustained.  The defense tells us that four of these doctors agreed that no doctor would stab himself in this place, and of course, they didn't say that.  And I may be misquoting the defense.  If I am, you know what they said, but I understood him to be saying that, and I don't believe that's what those doctors said.  I agree that they did say that in their opinion, no one could tell the medical consequences of stabbing themselves in this location.  Shall we discredit the testimony of Doctor Fisher?  Shall we compare Doctor Fisher with the four doctors who did testify?  Two of those doctors close, obviously close friends of the accused.  Who is Doctor Fisher?  What is his occupation?
     What has he done for the last twenty-one years?  I think these factors and have to consider whether his opinion has any value as opposed to that of the other doctors who have spoken on the subject.  I would point out that the injuries, if feigned, needed real credibility.  It needed to be an injury, at least one injury, which clearly could have been serious, and I think I've explained how this injury could have been inflicted in such a way as to be relatively safe and still look serious.  And the government does not feel necessarily constrained to theorize that these injuries were self-inflicted.  We believe they were, but they might not have been.
     They might have been inflicted by his wife.
     Now what about the issue of impulse and temporary insanity?  The government dees not here contend that the accused had a long pent-up hostility to his wife or to his children.  It's tried to make it very clear that this is not, in our theory, the way it happened, but that this is an incident which occurred out of an argument, an argument triggered by an admittedly minor thing, a child urinating in the bed, which developed into an argument, which got physical.
     And at that point I think it is within bounds to say that Captain MacDonald became so angry that he was capable of committing great violence.  Now, because the defense wishes to characterize the argument of the government as being one of temporary insanity in part, I should state that that's not the contention of the government.  There is a legally recognizable difference between anger and rage, and insanity.  A man who is blindly angry is not therefore of necessity insane, and in fact, if that's the state, is not insane, and we contend that that is precisely the state that Captain MacDonald was in, and seized upon a weapon of opportunity, which happened to be a very large piece of wood or a club, which, as I've already said, could have been present for any number of reasons, could even be used to prop a window.
     Now let's do consider for a moment the testimony of the psychiatrists.  I believe Doctor Bailey and his crew have given evidence to this hearing that Captain MacDonald is capable of an act of extreme violence, and they have also said that he is capable of hiding this fact from them, and even the source material provided by the defense would leave them to believe the same thing.  So he's capable of these things.  Now, what about predicting whether he really probably did it, or probably didn't do it, from psychiatric testimony and psychiatric opinion?  Doctor Sadoff felt willing to venture into the world of probability.  The defense chooses to intimate that because Doctor Bailey and his team were not forensic psychiatrists, they therefore were not capable of doing what a forensic psychiatrist would have done, i.e. the venture into probability, but overlooks the fact that Doctor Rappapor, who is, in the testimony of Doctor Bailey, a very famous nationally well-known forensic psychiatrist, has agreed with and reinforced the opinion of the military psychiatrists that the world of probability is not the proper realm of psychiatrists.  Is Doctor Rappapor without credibility?  Is he incapable from his point of view of deciding whether this is a proper area for a psychiatrist to venture?
     Now the defense says that no one has contended that Captain MacDonald was lying when he said that he had not thought the incidents of the 16th and 17th through prior to April the 6th.  To set that at rest, let me say that I here and now say that it is our contention that Captain MacDonald is lying when he says that, and it is our contention that he is a man of intelligence, strength and ability such that he could have, and he did, hide the real facts from the psychiatrists to whom he spoke.
     Now obviously since the defense chose to present evidence in this case, to the extent that that evidence is beneficial to the government, it has to be considered in that light, so let's not fall into the trap of thinking that the government's case must now at this point be judged only on vhat the government put in evidence.  I would like to point out with reference to Miss Stoeckley, as a very relevant fact, that Captain MacDonald, having been shown a picture of Miss Stoeckley said he'd never seen her before.  What about Mr. Sutton?  To keep my remarks within the proper dignity I will say only that I think Mr. Sutton can properly be written off.  And, as I seem to be wandering, sir, I would just like to say in my own defense that I am trying to follow the order in which these things came out in the defense's argument.
     We move now to some of the evidence which the defense did finally get around to saying a few things about.  What about this hairbrush?  Well, of course, we only have Captain MacDonald's word that it wasn't a hairbrush that belonged to his house.  We also know that it was gray hair dyed dark.  Neither one of these descriptions would match what he says he saw.
     What about the wax?  There are a number of candles, many candles in the MacDonald house.  One can infer from this that the MacDonalds used many candles and there's no reason why that wax could not have been from a candle since disposed of.
     What about the unidentified fingerprints?  Sir, I say to you that there is no one in this room today into whose dwelling they could not go and raise fingerprints that we could not identify, in numbers, because fingerprints will last from hours to months.  Now we know from the defense's testimony that babysitters, that friends, and that relatives had visited that house.  We also know that some of the characteristics of Mrs. MacDonald's fingerprints are not in our possession, and so there are some prints which could belong to her, cannot be identified as belonging to her.  So I say to you, sir, that unidentified fingerprints in that house are not only not odd, but that it would be odd should we have not found such a thing.
     Now, let's consider for a moment the idea presented by the defense that the blood on the Esquire magazine was brought in and deposited on that Esquire magazine as contamination from the killing of Kimberly, possibly.  I say to you this, sir, if that's the case, then Captain MacDonald slept through the killing of Kimberly.  Very odd, most unlikely.
     Now the defense puts forth the idea that Captain MacDonald ripped the pajama top from his hands, threw it down, thus distributing fibers in the master bedroom.  I don't think that's what the evidence shows.  There's some evidence that he threw it down.  I don't think he described to us the process of ripping it apart, the pajama top.  I suggest to you, sir, that that's still leaving us with the question -- what about the pajama pants?  When were they ripped?  Were they ripped in the struggle?  Why don't we have fibers from them in the living room?  No fibers in the living room.  No great amount of blood in the living room.
     Sir, the government has presented to you a theory consistent with all the known facts of this case.  The explanation of Captain MacDonald, in light of the facts, cold, cool facts of hard evidence, does not stand up.  That theory, that explanation fails, and I say to you, sir, on behalf of the government, that the only reasonable conclusion which we see could be reached would be the decision that Captain MacDonald should stand trial by court-martial for the murder of his family.

COL ROCK:  This hearing is closed.

(The hearing closed at 1435 hours, 11 September 1970.)