Trial Transcripts

July 26, 1979

Donald Murray (FBI)

MR. MURTAGH:  Your Honor, the Government calls Special Agent Donald Murray.

(Whereupon, DONALD M. MURRAY was called as a witness, duly sworn, and testified as follows:)

MR. MURTAGH:  Your Honor, pursuant to our previous agreement with Counsel, we would mark and subsequently offer Government Exhibit 1026 which is a photo display consisting of Exhibits 733, 734, 702, and 703.  Perhaps if I just give you the Government Exhibit Number -- 1027, 1028, 1029, 1030, 1031, 1032, 1033, 1034, 1035, 1036, 1037, 1038, 1039, 1040, and 1041.

(Government Exhibit Nos. 1027, 1028, 1029, 1030, 1031, 1032, 1033, 1034, 1035, 1036, 1037, 1038, 1039, 1040, and 1041 were marked for identification and received in evidence.)

MR. SEGAL:  Could we see those, please, Mr.  Murtagh?  Thank you.

D I R E C T  E X A M I N A T I O N  4:25 p.m.

Q  Please state your name for the record, sir.
A  Donald M. Murray.
Q  Where are you employed, Mr. Murray?
A  I am a Special Agent with the Federal Bureau of Investigation in Raleigh.
Q  How long have you been so employed?
A  Twenty-four years.
Q  And where have you spent the majority of your time, sir?
A  In North Carolina -- Raleigh.
Q  In what capacity?
A  As a Special Agent.
Q  Would you describe yourself as primarily a field agent?
A  Yes, sir.
Q  Okay, now let me ask you, Mr. Murray, did you have occasion in August of 1974 to perform any services to assist the grand jury investigation in this case?
A  I did.
Q  Would you describe those services, sir?
A  On August 14, 1974, in connection with this matter Special Agent Edward J. Brennan of our Charlotte office, who was a photography specialist as well as a special agent, was present in our office here, and we took photographs of Dr. MacDonald in the office of certain portions of his body.
Q  Sir, is that the same individual that I believe you nodded your head to?  Are you referring to the Defendant?
A  I am referring to the Defendant.
Q  Okay, sir, who else was present at that time, if you recall?
A  Mr. Segal and Mr. Malley who, I believe, was an attorney from Washington, D.C., and, I believe if my memory serves me, the young lady who is seated behind Mr. Segal whose name escapes me at this time.

MR. SEGAL:  Ms. Simmons.

THE WITNESS:  Ms. Simmons.

Q  Now, would you describe generally, Mr. Murray, the procedure or the format that was followed in taking these photographs?
A  Mr. Brennan was the mechanic, for want of a better word, and he had two cameras -- one for a location shot which I would describe as a more distant shot; the second camera, for close-ups of the same area that he would photograph from a distance.  So, we would photograph, for example, this exhibit here from a distance.
Q  You are referring to photo 733?
A  733; and then it would be photographed closer up.
Q  For the record, we are referring to photographs of what, sir?
A  Of Dr. MacDonald's body.
Q  Yes, sir; and what portion primarily?
A  From the waist up primarily.
Q  So, you would take a location shot with one camera, if I understand correctly, and then the bottom row of photographs 702 and 703 --
A  (Interposing)  Would be the shots that are close-ups.
Q  And, if you know, sir, there appears to be a pointer or a felt tip pen in photo 733.  If you recall, who was pointing there?
A  This was Dr. MacDonald's hand.  He is pointing at the area with a pen himself.
Q  Do I understand that he would point to an area and then what would happen?
A  When he would point to the area, the photograph would be taken and in some cases he would advise what it was he was pointing at.  Then a photograph would be taken of the same area from the same distance without the pointer such as in this picture.
Q  Okay, if you know, sir, how many areas or portions of his upper body are we talking about?
A  Fourteen, I believe.
Q  Were you taking notes?
A  Yes, sir; I was taking notes and Mr. Brennan was working the cameras.
Q  Did you transcribe or take substantially verbatim notes of what Dr. MacDonald said?
A  Yes, sir.
Q  Okay, thank you.  Now, with respect to what we would refer to as area 1, I believe, and I can't read the number from here.
A  You are referring to area 1 here which is this entire placard.
Q  It is Government Exhibit --
A  (Interposing)  1026.
Q  Now, with respect to that exhibit number and that area, would you please tell us what portion of Dr. MacDonald's upper chest we are talking about and what, if anything, did he say?
A  In reference to these photographs, there was depicted therein a visible scar beneath the left nipple in the shape of a "v."  In the immediate area of that, there were several puncture wounds which were not visible at the time, according to Dr. MacDonald.
Q  Is that a "v" that would appear as if it were printed?  Is it right side up?
A  The letter "v."
Q  He pointed to that area.  He described the scar?
A  Yes, sir.
Q  To what action did he attribute that scar?
A  To being caused by the assailants in the assault upon him in his residence on the morning of February 17, 1970.
Q  Now, if I may, let us look at area two on Government Exhibit 1027.  At area number two, can you tell us, please, what that reflects?
A  Now, these are the distant photographs and these are the close-ups of the same area.  They refer to an area about three inches to the right of Dr. MacDonald's navel which he referred to as the right upper quadrant of the abdomen at the time the photographs were taken.  He noted that there were a number of puncture wounds in this area where he is pointing which were not visible at the time the photographs were taken.
Q  Okay.  What action did he attribute those not visible puncture wounds to?
A  The assault upon him on the morning of February 17, 1970.
Q  704 and 705 are close-up shots?
A  Yes, sir.
Q  And do you, by looking at this photograph, Mr. Murray, see any scars or puncture marks in that area?
A  No, sir.
Q  With respect to Government Exhibit 1028 or area three, what portion of his anatomy is he pointing to there, sir?
A  The right side of his chest; and again, we have the same situation with the distant and close-ups.  We are talking about an area which is a three-quarter inch visible scar approximately two inches below the right nipple.  Dr. MacDonald described it as one-half inch medial.
Q  And to what action did he attribute that scar, sir?
A  To the assault on him on the morning of February 17, 1970.
Q  Now, let me just jump ahead if I may and show you Government Exhibit 1039 or area 14 and ask you if this refers to -- well, what does it refer to, sir?
A  It is the same general photograph as we have here except in this case, it is a little closer tip and contains a rule.
Q  Excuse me.  Let me interrupt you just a second.  What is the purpose of the rule, if you know?
A  An effort to show the size of the scar in relation to the rule.
Q  The rule is in what measurement, sir?
A  I wish you had not asked me that.  Metric.
Q  Okay, thank you.
A  In reference to that, may I add --
Q  (Interposing)  Yes, sir.
A   -- that Dr. MacDonald advised me that that depicted a stab wound on the right seventh intercostal space.
Q  That stab wound was inflicted by --
A  (Interposing)  As a result of the assault in his residence on February 17, 1970.
Q  Now, we have Government Exhibit 1029 or area four.  If you will tell us, please, what that refers to?
A  The area of his chest above the left nipple.
Q  Okay.  What injuries, if any, did he describe in that area, sir?
A  There were, according to Dr. MacDonald, three or four puncture wounds in that area which were not visible at this time.
Q  To what action did he attribute those injuries?
A  To the assault in his residence.
Q  Okay.  With respect to Government Exhibit 1030, area five.  What portion of his anatomy are we looking at there, sir?
A  His left arm.
Q  Okay.  What did he describe with respect to his left arm?
A  He is pointing to an approximately one-half inch scar which was visible approximately three inches from the vaccination on his left arm.  In the same general area, he described two or three puncture wounds which were not visible -- the scars were not visible and he advised that the puncture wounds had been there.
Q  This is his left arm?
A  This is his left arm.
Q  Now, with respect to 1031 -- Government Exhibit 1031, area six, what are we looking at there, sir?
A  This is the left hand.  It is the web between the thumb and the index fingers.  He described that he had received cuts in the web which were not visible at the time these photographs were taken.
Q  To what did he attribute those cuts if you know?
A  The assault which occurred in the apartment in his residence on the morning of February 17.
Q  Okay, Government Exhibit 1032, area seven, what are we looking at there, sir?
A  This is a photograph of Dr. MacDonald's head -- particularly, the left forehead area where there is a slightly visible one-quarter inch scar which he pointed out to us.  He also advised that this area had been bruised by a club and other markings were not visible -- other markings of scars or wounds were not visible.
Q  If I understand, to what did he attribute the scar?
A  This particular scar?
Q  Yes, sir.
A  To the attack.
Q  Okay, area eight or Government Exhibit 1033, what are we looking at there, sir?
A  This is a one-half inch barely visible scar which is vertical at the hairline over Dr. MacDonald's right eye.
Q  Okay, to what did he attribute that?
A  To the attack in his residence on the morning of February 17, 1970.
Q  Okay, let's see, am I pointing to the right area here in Government photo 720 on this exhibit.  I see what appears to be a scar, is that what you are referring to, sir?
A  Well, that mark right there (indicating) was caused by --
Q  (Interposing)  The pen?
A  The pen being pressed against his head.
Q  I see, all right.  With respect to 1034, Government Exhibit 1034, area nine, what are we looking at there?
A  This is the left side of Dr. MacDonald's head.  It is above the area where he advised bumps and abrasions -- he had received bumps and abrasions at the time of the assault in his residence which were no longer visible, and they had been caused according to him by a blow to the head by a club.
Q  Now, you used the term "bumps and abrasions"; is that your term or his?
A  That would be his term.
Q  Okay, with respect to 1035, area ten, what does that reflect, sir?
A  That is a back view of Dr. MacDonald from the waist up.
Q  Okay, and with respect to that area, what injuries, if any, did he draw to your attention?
A  None.
Q  None?
A  No, sir.
Q  With respect to 1036, area 11, what are we looking at there, sir?
A  This is an area under his right armpit which shows a quarter-inch surgical scar which he advised was the result of a tube being placed into his chest cavity during surgery after the attack.
Q  Now, with respect to Government 1037, area 12, what are we looking at there?
A  This is the right chest area of Dr. MacDonald, and it is a circular scar which he advised was the result of a tube insertion to relieve his lung congestion.
Q  Do you know, sir, with respect to photo 724, there appears to be some sort of discoloration and apparently a ripped area on the film; do you know what that is, sir?
A  That is scotch tape.  The negative at that point was torn.
Q  I see.  Does 724 -- well, tell me, 723 and 724 have what relation to each other?
A  They are the same.
Q  Okay, thank you.  All right, Government Exhibit 1038, area 13, what are we looking it there, sir?
A  His right upper bicep in which he advised there were scratches approximately two inches long which at the time were not visible.
Q  Did he say anything with respect to any injuries other than scratches?
A  No, sir.
Q  To what did he attribute these scratches?
A  To the assault which occurred in his residence on February 17, 1970.
Q  Okay, I appear to have a photo out of order.  I'm sorry we have gone through this.  At this time, I would show you Government 1040, area 15 and 1041, area 16.  If you would tell us, sir, what that is?
A  15 is the photograph of the sole of his right foot.  16 is a photo of his left foot.
Q  Okay, the foot appears to be somewhat discolored.  Do you know what caused that?
A  Yes, that is from fingerprint ink.  His feet had been printed.

MR. MURTAGH:  Your Honor, at this time, we would offer into evidence the exhibits to which we have referred and ask that they be received.

THE COURT:  Very well.

MR. MURTAGH:  Ask if the court would indulge and allow us to publish to the jury, by means of slides which correspond to these photographs.  I assure you we will be finished long before 5:00 o'clock.

THE COURT:  Well, take your time.  We just leave at 5:00.

MR. MURTAGH:  Your Honor, in the interest of time, if I may, I would merely represent to the court that these slides correspond to the photouraphs on the charts, and I will give the list to the clerk after we finish.

(Exhibits 702 thru 757, identified by witness Murray, were received in evidence.)

(Slide exhibits published to the jury.)

Q  I believe this is the photograph to which you have referred to earlier in which Dr. MacDonald described a "v-like" scar?
A  Yes, sir.
Q  Can you tell us, by looking at the photograph, in which direction he pointed the "v," if you can see it?
A  I am afraid I can't.
Q  Would it be more helpful for you to come down, sir?
A  That isn't much better.  I'm sorry I can't tell you.
Q  Okay.  Mr. Murray, if I recall your testimony, is that the scar to which you referred that was the result of the insertion of a tube?
A  Yes, sir.
Q  And that is a close-up of that same photo?
A  Yes, sir; I believe so.
Q  And that is the film that is broken?
A  Yes, sir.
Q  Okay, and we are looking there at what portion, please?
A  That would be the right upper arm.
Q  And that is the photo to which you referred with the rule; is that correct?
A  That is correct.

MR. MURTAGH:  Your Honor, if I may at this time in the interest of visibility, I would ask to publish to the jury one single photograph, Government Exhibit 1039, for area 14.

THE COURT:  Very well.

(Exhibit passed among the jury.)

MR. MURTAGH:  Thank you.  Counsel may cross-examine.

MR. SEGAL:  Your Honor, indulge us for a moment, please.

(Counsel confer.)

MR. SEGAL:  May I proceed, Your Honor?

THE COURT:  Yes, sir.

C R 0 S S - E X A M I N A T I 0 N  4:49 p.m.

Q  Agent Murray, when these various photographs of Dr. MacDonald were taken, was he under arrest at that time?
A  No, sir.
Q  Did you or Agent Brennan have a search warrant to allow the photographs of the body to be taken?
A  No, sir.
Q  Was there a court order of any sort that directed him or ordered him to submit to these photographs and procedures?
A  Not to my knowledge.
Q  As a matter of fact, you were aware that Dr. MacDonald, on my advice, had voluntarily agreed to have these photographs and the prints of his feet made?
A  Yes, sir.
Q  That was during the four days that he appeared as a witness before the grand jury which investigated this case in 1974; isn't that right?
A  Yes.
Q  In fact, he testified for a total of five days in front of the grand jury in 1974 and '75, as far as you know?
A  I know he was there testifying.  The time spent I am not aware of.
Q  As far as you know, Dr. MacDonald at no time during the grand jury proceedings ever exercised the Fifth Amendment right not to testify or to be examined or anything else, as far as you are aware?
A  As far as I am aware.
Q  Now, the date of these photographs, Agent Murray, is August the 14th of 1974?
A  That is correct.
Q  By my calculations, that makes it three days shy of exactly four and a half years after the injuries were inflicted; would you agree with that?
A  Yes, sir.
Q  Do you know of any reason why these photographs or similar photographs were not taken, say, in February, March, April, May Of 1970?
A  I do not know.
Q  Now, I gather that the job of Agent Brennan and yourself was merely to take these photographs and not to interpret them in any way; is that correct?
A  That is correct.
Q  You did not have to hold Dr. MacDonald down to take these photographs; did you?
A  No, sir.
Q  He did not assault you or any other agent; did he?
A  No, sir.
Q  That included taking hair samples from him; is that right?  He didn't assault anybody; did he?
A  No, sir.
Q  In the procedure whereby he pointed the various portions of his body, did that result when you asked him to please point out the injuries he said he sustained in 1970?
A  Yes, sir.
Q  And the matters that he pointed to were the matters then that you and Agent Brennan had photographs taken of?
A  That is correct.
Q  By the way, you are not a technical photographer yourself; are you?  You don't know what kind of lens or film Agent Brennan used to take these pictures here?
A  He advised me what he used.  I am not technical in those lines at all.
Q  Just so we get the record complete, do you know what kind of camera and lens he was using for these purposes?
A  He used a Nikon F-2 with a Vivitar, I believe is how you pronounce it, 90-230 zoom at 220 millimeter.  He used a Nikormat EL with a Nikor 50 millimeter with a plus-three close-up attachment for macrophotography, which was the feet.  In the case of the feet, he used a plus-one close-up attachment and an Eastman Kodak cps 135-36 film.
Q  All right, that is all the technical data that Agent Brennan has provided you with; is that correct?
A  Yes, sir.
Q  And you took hair samples also at the same time from Dr. MacDonald; didn't you?
A  Yes, sir.
Q  How did you proceed to do that?  What was the process?
A  Physically?
Q  Yes, please.
A  At the time I think we took specimens from different areas, as I recall, with a scissors, and we would cut the hair and place them in an envelope -- a plastic envelope -- mark the envelope.
Q  Now, who did the cutting, if you recall, and who did the capturing of the hair?
A  I did.  I believe I did the cutting and with Mr. Brennan I think we both probably placed the hairs into an envelope.
Q  You used a pair of scissors from one of your office desks, I believe?
A  I believe so.
Q  You cut a sample of the hair and you took it and you put it in an envelope; is that correct?
A  That's right; yes, sir.
Q  I can't remember.  Did you use some kind of special envelope for the evidence or just office envelopes?
A  Well, we had special office or evidence envelopes.  I am sure I used those.  I believe I did anyhow.  They were probably plastic envelopes.
Q  All right, but suffice it to say, you used a pair of office scissors to cut a sample of hair -- the sample you cut and placed each one, I suppose, in a separate envelope?
A  Either an envelope or a pill box.  I really don't remember.
Q  Do you have a list of the 17 places from Dr. MacDonald's body from which you took hair samples?
A  Yes, sir; I do.
Q  Would you share that with us, please, Agent Murray?
A  Yes, sir; the left temple area, center of the forehead, right temple area above the left ear, center of the head above the right ear, the left back of the head, the back center of the head, the back right of the head, the right upper arm outside.
Q  Would that be like the bicep area?
A  Yes, sir; left upper arm outside, right chest, left chest, navel area, pubic area, right forearm top, left forearm top.
Q  That covers the 17 areas; is that right?
A  Yes, sir.
Q  May I ask who chose or how you came to choose the various areas that you did use to take hair samples from?
A  I believe as far as the head hair was concerned, I believe I did.  As far as some of the other areas, I don't remember whether I had instructions from the attorneys handling the grand jury.  As to pubic hair and that sort of thing, I believe I must have had some instructions, but I don't personally remember at this time.
Q  As far as you are concerned, that covered every conceivable part of his body that you could tell he had hair on; is that right?
A  Well, of course, we did not take anything from his legs.
Q  All right, that is true.  You went down as far as what?
A  The pubic area.
Q  You also took footprints, I gather, at that time?
A  Yes, sir.
Q  Will you describe for us how that process was done?
A  Well, the ink is rolled on the bottom of the feet.  I don't recall vividly in my mind now how those prints were taken, but the usual procedure is to roll the piece of paper across the foot on a roller rather than stepping on the foot.  I believe that is the way we did it.
Q  As a matter of fact, that is exactly my recollection also.  May I ask whether you would agree with the following; that you had Dr. MacDonald seated in a chair, you had him extend each leg alternately in a forward position, and you then placed fingerprint ink on the soles of his foot and then rolled the ink out, put a piece of paper and then rolled the print, does that sound correct to you?
A  Yes, I believe so.
Q  And then you alternated the opposite leg; is that correct?
A  Yes, sir.
Q  How many of those prints did you take altogether of his footprints?
A  I don't recall.  I would think we probably took one each, but I don't recall.

MR. SEGAL:  All right, thank you very much.  We appreciate that information.  I have no further questions.

THE COURT:  Any Redirect?

MR. MURTAGH:  No, Your Honor.

THE COURT:  There is no such thing as a 20-socond witness.  All right, that brings us up to  the close of this trial day.  Members of the jury, we will take our recess.  Tomorrow is Friday, so we go on our Friday schedule which the jury agreed unanimously about as I recall.  That means that tomorrow morning we will convene at 9:00 o'clock and tomorrow afternoon, we will be adjourning at 3:00.  We will take shorter recesses.  We will get just about the same amount of work done, but we will hit it a little harder.  Now, tonight, you don't talk about the case among yourselves or with others.  Remember all those things you are not supposed to do and don't do them.  Have a good night, a safe trip home and back.  Be back tomorrow morning at 9:00 o'clock.  We will let the jury retire and then we will go.

(Jury exits at 4:59 p.m.)

(Witness excused.)

(The proceeding was adjourned at 5:00 p.m., to reconvene at 9:00 a.m. on Friday, July 27, 1979.)