Trial Transcripts

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F U R T H E R  P R O C E E D I N G S  10:00 a.m.

THIS CAUSE came on for further trial before The Honorable Franklin T. Dupree, Jr., United States Chief District Judge, and a jury, on Monday, July 30, 1979, at Raleigh, North Carolina.

(The following proceedings were held in the presence of the jury and alternates.)

THE COURT:  Good morning, ladies and gentlemen.  All right; any further evidence for the Government in this case?

MR. BLACKBURN:  Your Honor, we call Mr. Caverly back to the stand.

THE COURT:  I believe he was already on the stand, and you had not quite finished with him.

(Whereupon, ROBERT H. CAVERLY, the witness on the stand at the time of recess, resumed the stand and testified further as follows:)


D I R E C T  E X A M I N A T I O N  10:01 a.m.  (resumed)

BY MR. BLACKBURN:
Q  Mr. Caverly, on Friday afternoon, as I recall, you had testified about the second of two interviews that you conducted or were conducting with the Defendant Jeffrey MacDonald; is that correct?
A  Yes, sir.
Q  And I believe, sir, that you had just stated about 3:00 o'clock that the Defendant had stated that he had seen some surgical gloves in the apartment.  Do you recall that testimony?
A  Yes; I do.
Q  Would you go into that, sir, a little bit?
A  Dr. MacDonald -- this was on the second interview where he was relating what had happened the night before -- that one of the white males had what he called a lightweight glove -- a surgical glove.  He stated he had several pairs of these gloves in his house or his residence at Fort Bragg, and that his wife used the gloves while she was washing dishes or cleaning up, something to protect her hands.
Q  Mr. Caverly, what, if anything, did the Defendant say with respect, at this meeting, to identifying the intruders?
A  He said he could probably recognize, or may be able to recognize, the black male and possibly the white female; but he could not identify either of the two white males that were at his residence.
Q  Now, approximately what time did this interview terminate, if you recall, sir?
A  To the best of my recollection, it lasted approximately one hour.  I can't remember the time.  I would say -- I know it was in the afternoon -- I would say somewhere around 2:00 or 3:00 o'clock.
Q  After you finished this interview, what was the next thing you did with respect to this investigation?
A  I went back again on February 19th to Womack Hospital, accompanied by John Hodges from CID and Crawford Williams, one of our agents who is now retired in Wilmington.
Q  Mr. Williams being an agent of the FBI?
A  Yes.
Q  What was the purpose in going back the third day?
A  This was just to get some background information on Dr. MacDonald, and to find out if he could add anything to the previous interviews.
Q  Before you went in, sir, did you talk with any of his doctors?
A  The best I can recall, we asked the doctor on duty -- I don't remember who it was now.  We identified ourselves again and asked him if we could talk to Dr. MacDonald.
Q  What did the doctor say?
A  He said it would be all right.
Q  When you went inside and conducted this third interview, who was present?
A  John Hodges from the CID at Fort Bragg, Crawford Williams, the FBI agent, and myself.
Q  Was the Defendant laying down or was he sitting up, sir?
A  To the best of my recollection, he was sitting the same way he was on February 17th.  He was raised from his waist up.
Q  After you went inside, what, if anything, did you say to the Defendant?
A  The same thing I did before.  We reidentified ourselves and asked him if he agreed to be interviewed.
Q  What did he say?
A  He agreed to be interviewed.
Q  Was he alert and coherent this third day?
A  To the best of my recollection; yes, sir.
Q  How long did this interview take?
A  Approximately 45 minutes.
Q  During this third interview, what, if anything, did you learn that was different from or in addition to what you had previously learned there?
A  We talked to Dr. MacDonald about his background, when he came in the Army, when he came to Fort Bragg, and the only other thing that he stated to us, that he was at his office at 8:30 a.m. on the 16th of February.  He went home for lunch at approximately 11:30; returned to his office at about 3:45 p.m., February 16th; and he left for the J.  F.  Kennedy Center, where he played basketball until approximately 4:45 or 5:00 p.m.  He left the gymnasium and went to feed his horse behind one of the shoe shops on Bragg Boulevard in Fayetteville; got home again between 5:00 and 5:30 p.m.; took a shower; put on his pajamas; ate supper; and his wife left for class at North Carolina State Extension at Fort Bragg at approximately 6:20.
    She took her family automobile, and he stated he remained at the house with the children, had no visitors, and received no telephone calls.  He stated at approximately 7:00 p.m., he put his youngest daughter, Kristen, to bed; and his oldest daughter, Kimberly, was in bed at approximately 9:00 o'clock, after watching the television show -- I believe Dr. MacDonald said "Laugh-In."  He stated he watched a show at 9:00.  His wife returned home at approximately 9:40, and then they watched television.  Shortly after the news started 11:00 p.m., his wife got ready to go to bed.  He stated that he and his wife then watched the "Johnny Carson Show."  She went to bed prior to the time the show was over.
    He finished watching the show at approximately 1:00 a.m., then did the dishes, read about 50 pages in a novel, and then started to bed.  He could furnish no additional information other than what he had furnished on the 17th and 18th of February, but told me that he believes he may have looked out the back door after making the telephone call to the operator.
    He does not remember if it was raining or not and he stated that he does remember that he had a lot of blood on himself, but told me that he feels that the blood was probably from the wife and children, due to the fact that he was -- the nature of their wounds.
Q  After this interview was conducted by you, Mr. Caverly, what else, if anything, did you do with respect to the investigation?
A  I didn't do anything after this.
Q  Why was that, sir?
A  I don't remember, to tell you the truth.  I think the agent in charge said that I was finished as far as the investigation was concerned.
Q  How long, if you know, sir, did the FBI stay in the investigation at this point?
A  Until Friday; we got into it on Monday, and I believe we got out on a Friday.
Q  Do you know why, sir, the FBI got out of the investigation?
A  It was strictly a military affair.  There was no civilians involved, as far as we were able to determine.

MR. BLACKBURN:  Your Honor, this would conclude our direct investigation of Mr. Caverly.  The Defense may cross-examine.

THE COURT:  Very well.

MR. SEGAL:  First, Your Honor, if I may request -- has the Court Reporter been able to obtain the transcript of Friday?

THE COURT:  The Reporter says he does not have his transcript here.  Is there any particular portion of it that you wanted to know about?

MR. SEGAL:  Yes; Your Honor.

THE COURT:  Well, come up to the Bench and we will talk about it.


B E N C H  C O N F E R E N C E

THE COURT:  I got every word he said here, but you can't read it.

MR. SEGAL:  Can Your Honor read it?

THE COURT:  He just read right out of his report.

MR. SEGAL:  That is right, except there is a significant omission that he omitted in the reading of the paragraph at the top of page four.

THE COURT:  What did that have to do with it?

MR. SEGAL:  His emotional condition and his inability to tell it in a logical sequence.  Now, Mr. Blackburn went back and only covered one little bit of that and left out Dr. MacDonald's emotional condition.

THE COURT:  Go ahead and cross-examine.  You have got the thing there.  Let's go.

(Bench Conference terminated.)


BY MR. SEGAL:
Q  Mr. Caverly, on Friday, you told us what Dr. MacDonald said according to your recollection in the first of your three interviews that you had with him back in 1970; am I correct in that regard?
A  Yes, sir.
Q  Actually, would I be correct in saying that you really don't have a specific memory of what he said?  You are really relying upon the notes that you took of that meeting?
A  Yes, sir.  I am relying on this interview form, right.
Q  Let me talk to you a little bit about the interview form and then we will get to the contents of it.  That first interview with Dr. MacDonald took place again at what time on February 17th?
A  2:25 p.m., February 17, 1970.
Q  And you know that time as a result of reference to what material?
A  I recall the time from notes and from other incidents that happened back in 1970.
Q  I note that the time does not appear in your typed statement, though.  I wonder what notes you referred to to get the time?
A  These were notes that I had taken with the interview with Dr. MacDonald.
Q  These were handwritten notes you made as you were going through the interview?
A  Yes, sir.
Q  Then, I gather that you had those notes typed up; is that right?
A  Yes, sir.
Q  Of course, you did that when it was still fresh in your mind?
A  Yes, sir; I did.
Q  You said that the interview was February 17th.  Exactly what date did you have your notes typed up, or written up?
A  At that time, the policy of the FBI was to dictate the notes within five working days.  These were done within seven, so I would have to say that I dictated them either on the 19th or the 20th -- three days afterwards.  I sent the transcript (sic) to our office in Charlotte.  They were transcribed on the 24th.
Q  Well, now, let me understand the policy.  You say that in February, 1975, (sic) the FBI had a policy which required agents to dictate or write out in longhand I guess, whatever memoranda of interviews that they make?
A  It was in 1970.
Q  Yes, 1970.  They were required to do that within five days after the interview was taken?
A  Yes, sir.
Q  Would I be correct in assuming that the purpose of that was to minimize problems about memory loss of details and things?
A  I don't know the purpose.  I just know that I had instructions to follow.
Q  I appreciate that, but did you not conclude in your own mind that the purpose of the regulation of the Bureau was to have you do matters like this in five days was to make sure that everyone --
A  (Interposing) I did not have any conclusion.  I just did it.
Q  Just did it?  Did not question the regulation?
A  No, sir.
Q  Did not have any disagreement with the regulation; did you?
A  No, sir.
Q  All right, now, the Bureau has another regulation, doesn't it, about how to fill out an interview form; isn't that right?
A  That is only on a suspect or suspect case.
Q  There is a regulation about how forms are to be filled out when you do work with the Bureau?
A  What type of form are you talking about, Mr. Segal?
Q  How about the form that is called -- it doesn't have a name on it, but we know it to be an FBI Statement Form -- the first page of that --
A  (Interposing) It is an FD-302; yes.
Q  That number does not appear on my copy.
A  It should be up in the left-hand corner.
Q  Well, I suppose the photocopy did not work so well.  What is the number of the form again?
A  FD-302.
Q  Now, that is the form on which the notes that an agent makes in longhand or however he or she makes it is then transcribed onto a typewritten form; is that right?
A  I take my notes at that time, and I transcribe them onto a dictaphone; yes.
Q  Then, a stenographer types them up onto this form FD-302?
A  Yes.
Q  Do you have a copy of Form D-302 in this case representing the first interview with Dr. MacDonald?
A  FD-302 is right here.
Q  May I see that for a minute?

(Document handed to Counsel.)

BY MR. SEGAL:
Q  Thank you.  Now, at the bottom of this interview form on the first page, it has blocks and spaces for certain data to be inserted; does it not?
A  On the bottom?
Q  Yes, sir.
A  Right.
Q  The first block has the word "On" and a space after it?
A  Yes, sir.
Q  What is supposed to be filled in in that space?
A  Date of interview.
Q  The date that the informant -- the person being interviewed was, in fact, spoken to; is that right?
A  That is the date I interviewed Dr. MacDonald; yes.
Q  And in this case, you dictated and had put down there that the interview took place on 2/17/70 -- in other words, February 17th, 1970?
A  Yes, sir.
Q  Then, it has got the word "at" and a blank space and there you have "Fort Bragg, North Carolina"?
A  Yes, sir.
Q  Indicating the place of the interview?
A  Yes, sir.
Q  Then, the third matter says "File number" and you have after it a series of code numerals indicating the file that the Bureau had open in this matter?
A  Yes, sir.
Q  Those are all correctly stated here on this form?
A  Yes, sir.
Q  Then, on the next form, it says "By" and it has your name thereafter and that would indicate, I guess, who is the person who took this interview?
A  This is the girl that transcribed it in Charlotte.  My copy says the word --
A  (Interposing) "egp."
Q  It has the word "By" and a blank space and it savs "S/A" which means that Special Agent Robert F.  Caverly -- that means the person whose interview this is?
A  That was mine.
Q  And then, there is a colon and initials "egp" which you tell us is the stenographer who did the actual transcription?
A  Yes, sir.
Q  And in the last blank on that page that he filled out, it says the date dictated.  It says here "2/24/70."  Is that what it says there?
A  That is the date she transcribed it.
Q  Wait a minute.  It says on here the date dictated, and you have, or on my copy, it shows February 24th, 1970; is that right?
A  Yes, sir.
Q  Now, is it your understanding that that term "date dictated" means when you spoke into the dictation machine using your raw notes?
A  I don't --
Q  (Interposing) Let me tell you the alternative, or does it just mean the date that some stenographer transcribed the tape?
A  It is my understanding; yes, sir.
Q  What does the date at the top of the page in the upper right-hand corner mean -- March 3rd, 1970?
A  That is the date the stenographer put on it.
Q  What does it mean?
A  It is a date -- I don't have any idea.
Q  Mr. Caverly --
A  (Interposing) It is the date -- apparently, she put the date on there when she transcribed it.
Q  That is right, but in the upper right-hand corner, it says March 3, 1970, which you and I both have reason to conclude is the date that the stenographer actually typed up your dictated notes; isn't that right?
A  I would have to assume "yes."
Q  Now, going back down to the bottom of the page, if we use what we understand to be the information on the form, you dictated your notes of the interview with Dr. MacDonald on February 24, 1970.  That is what appears to be here.
A  I believe it was on the 20th -- the 20th or 21st of February.  That would be the following Monday if I am correct.
Q  Well, the following Monday would actually be February 23.
A  I can't dispute that; I don't have a calendar.
Q  Again, I ask you, Mr. Caverly, does it, in fact, where it says, "date dictated February 24, 1970," mean that, in fact, on Tuesday, February 24, 1970, is the day you dictated a memorandum of your interview with Dr. MacDonald?

MR. BLACKBURN:  Your Honor, we OBJECT.

THE WITNESS:  I can't remember that.

THE COURT:  OVERRULED.

BY MR. SEGAL:
Q  Sir, is that not your conclusion that when it says "date dictated,"  February 24 means the date that you spoke into your dictating machine?
A  I really -- I cannot recall.  I would have to assume that it would be.
Q  That would make it seven days after you spoke with Dr. MacDonald?
A  Five work days.
Q  First we will have to go by the calendar.  It is seven calendar days, is that right?
A  Well, our policy at that time was five work days.
Q  Are you disputing it is seven calendar days later?
A  I am not talking about calendar, I am talking about work days.
Q  Well, I understand that, Mr. Caverly.  All I asked you with my questions was: that is seven calendar days?
A  From the 17th to the 24th is seven days, yes.
Q  All right, and then you say that is five working days later?
A  As far as I am concerned, it was, yes.
Q  You sat at the dictating machine and you had your handwritten notes in front of you from the interview with Dr. MacDonald?
A  Yes, sir.
Q  And you then looked at those notes and you reorganized the information that was given to you by Dr. MacDonald into a logical sequence of events?
A  Yes, sir.
Q  You were not dictating into the machine the words verbatim that Dr. MacDonald spoke to you either, were you?
A  Yes, I was.
Q  You were?  Well, in looking over this four-page interview of February 17, 1970, I find that in several places -- well, let us look at page three, at the bottom last paragraph -- next to last paragraph -- that you have placed certain statements made by Dr. MacDonald in quotation marks, indicating what seems to be verbatim statements.  Do you see one in that next-to-last paragraph?
A  Yes, sir.
Q  Then go back on page three to the second paragraph from the top.  You say, "He stated," referring to Dr. MacDonald, "he observed a 'shiny blade.'"  Do you see that?
A  On page three.
Q  Page three, second paragraph from the top, fourth line.
A  All right.
Q  Do you see that, and is it fair to say that when you put those words, "He stated he observed the 'shiny blade,"' that you meant to tell the world that "shiny blade" were precisely Jeffrey MacDonald's words?
A  These were his words.
Q  Exactly; I understand that.  What I am asking you to tell us, of course, is that all of the words in this four-page statement, however, are not exactly verbatim, precisely every word that Jeff spoke to you on that day?
A  He never, told me he stated, right.  This is a narrative using my notes and making a logical statement.
Q  I think we understand that; and where you thought it was important for informational purposes to get exactly MacDonald's words, you put them in quotes?
A  This is what Dr. MacDonald emphasized at that time.
Q  What he emphasized?
A  Yes, sir.
Q  Did he emphasize the words "shiny blade"?
A  He emphasized "shiny blade"; he emphasized that he made a call to the MPs, or to the telephone operator.
Q  How did he emphasize those words that it would cause you to put them in quotation marks, and not anything else in quotation marks?
A  He was very emphatic about it.
Q  You dictated a reorganized, coherent statement of what Dr. MacDonald told you, isn't that right, on February 22 --
A  (Interposing) I dictated from -- February 17.  I dictated from the notes I had taken, yes, sir.
Q  Now, those notes -- they were made by yourself while you were sitting there or standing there talking to Dr. MacDonald?
A  I was sitting there, yes, sir.
Q  You were sitting alongside his bed, I believe you told me?
A  Yes, sir.
Q  How many pages were those notes?
A  I have no idea.
Q  Approximately?
A  Eight, ten 8" by 10" sheets.
Q  And, of course, those notes would be the first record ever made by you of what Dr. MacDonald said to you?
A  On my part, yes, sir.
Q  Yes, sir.  Where are those notes today, Mr. Caverly?
A  They are burned.
Q  Where are they?
A  They are burned.
Q  Who burned them and when?
A  I did.
Q  And when was that done?
A  Some time after the 3rd of March -- 3, 4, 5, 6th of March, 1970.
Q  Now, that wasn't your own idea to burn it, though, was it?
A  This was a Bureau policy at that time to destroy notes after the notes had been transcribed; and I reviewed them and made any corrections that had to be made -- had the girl -- had the stenographer retype it if there was any corrections.  Then we destroyed the notes.  That was the policy in 1970.
Q  That was not the policy when you retired, was it?
A  No, sir.
Q  It was changed in 1974?
A  I think it was '74 or '75, by the Supreme Court, yes, sir.
Q  So that any interview taken today -- the original notes, which we could then have available, could be checked against the typed transcript?
A  That is right, they would be in a file.
Q  Now, when Mr. Blackburn was questioning you on Friday about this first statement, would I be correct in saying that essentially, when he asked you a question, you were reading the material that is here on statement as your answer?
A  Essentially, yes.
Q  And you really went paragraph by paragraph through the interview of February 17, while he was questioning you?
A  I read most of it, yes, sir.
Q  Yes, most of it; but there was one paragraph that I noted was omitted.  Do you recall which one that you did not read to us on Friday?
A  No, sir, I do not.
Q  Let me ask you to take a look at the bottom of page three, first of all; and in that paragraph, the last paragraph on that page, there is some description of what Dr. MacDonald did in terms of attempts to give mouth-to-mouth resuscitation to his wife, and certain other acts.  Do you see that?
A  Yes, sir.
Q  And do you recall reading that in court on Friday?
A  Yes.
Q  The very next paragraph after that on the top of page four, do you recall reading that report on Friday?
A  If I recall right, yes, sir.

MR. SEGAL:  For this purpose, Your Honor, I would like to have the record read back.

THE COURT:  Well, I won't interrupt this trial at this time for that.  You said, "mouth-to-mouth resuscitation"; what was the next thing you said that you don't think he talked about?

MR. SEGAL:  What I want to indicate, Your Honor, that all the material in the last paragraph on page three going down, is the fact that the next thing he -- referring to Dr. MacDonald -- remembers is being awakened by a military policeman as he was lying over his wife's body.

THE COURT:  All right, just ask him about that.  Get that part of his report in, and if it is in there twice, all right.  If it's not, this will be the first time it's in.

BY MR. SEGAL:
Q  Mr. Caverly, do you recall on Friday reading that sentence to us also?
A  Yes, sir.
Q  Now, at the top of the next page, page four, is it your recollection of Friday's testimony that you then went on and read that paragraph in sequence?
A  It is to me, yes, sir.
Q  Is it your recollection of Friday's testimony that you actually covered every paragraph in the same sequence as it is in the first statement here?
A  As far as I can remember, yes, sir.

MR. SEGAL:  Well, Your Honor, I do believe it would be helpful if --

THE COURT:  (Interposing) We will get it at the recess.  I am not going to stop this right now.

MR. SEGAL:  All right, sir.

BY MR. SEGAL:
Q  Let me ask you, please, now if you will read to us what that first paragraph on page four is, and then perhaps after our break we can refer to the transcript and see whether all of the information that was contained in there was given on Friday.  What does it say here?
A  Said, "During the interview, Captain MacDonald became emotionally upset, and at times was unable to follow a logical sequence of events."
Q  He was emotionally upset about what?
A  Sir, I am not a doctor, but I am saying he was crying.  Now, I don't know what he was crying about what, but the only thing I remember is that he became very -- I say when a man cries he is emotional.
Q  You mean, when he was talking about the deaths of his wife and his daughter Kimberly and his daughter Kristen, he cried?
A  I don't know what was in his mind.
Q  I did not ask necessarily what was in his mind, Mr. Caverly, but what I was asking you is, when he was talking about his wife and Kristen and Kimberly MacDonald, was that the time he was crying?
A  To the best of my recollection; yes, sir -- when he talked about the children.
Q  Now, you say here in your statement he was unable to follow a logical sequence of events; correct?
A  Yes, sir.
Q  Is that what you define the word "coherent" as meaning; that is, the ability to tell something in a logical sequence of events?
A  Yes, sir; the way I interpret it; yes.
Q  Right; "coherent" you say means being able to tell things that happen more or less in the order that they took place?
A  This is the way I interpret "coherent."
Q  I am not quarreling with you.  I just am trying to understand, Mr. Caverly.  I don't want to be incorrect in that regard.  You didn't mean when you say "coherent" that there wasn't necessarily some slurring of words when he spoke; did you?
A  No.
Q  You did not mean when you said "coherent" that he necessarily could answer just like that after every question you asked; did you?  Answer right behind?
A  Oh, no; he was very deliberate.
Q  Did he have difficulty searching for words in telling you what went on?
A  Because of his -- I'll go back again and say -- emotions.  Yes; he was very deliberate in his answers.
Q  Now, you were aware -- were you not -- Mr. Caverly, that there had been a prior interview of Dr. MacDonald?
A  No, sir; I was not.
Q  Did you not know that the CID allegedly had interviewed Dr. MacDonald before you talked to him?
A  As best as I recall, somebody told me that Dr. MacDonald was interviewed at the house.  I thought I was the first -- myself and John Hodges -- were the first people to interview him in depth.
Q  Now let me just go back.  I think that maybe it would help your memory and everybody else's when this thing happened if I were to call your attention to something that you said in the grand jury that might be helpful; all right, Mr. Caverly?
A  I can't remember what I said at the grand jury.
Q  As a matter of fact, it is difficult to remember most of these events that took place nine years ago; isn't it?
A  Without this, it would have been for me; yes.
Q  All right, let me read you something from your testimony in front of the grand jury and ask whether, having heard it, either it refreshes your recollection or whether you are willing to accept what the stenographer reported; all right, Mr. Caverly?
A  Okay.
Q  I am referring to your appearance before the grand jury on August 27, 1974, in this case.  Now, to give the whole context, we will start at page 20, line three: Question: All right, sir, when you contacted Captain MacDonald on the 17th, 18th, or 19th, was he contacted as a possible witness or was he deemed at that time to be a possible subject of your investigation.  Answer: No, sir; he was contacted on all three occasions as a victim to an assault and as a witness."  Does that sound correct or do you accept that?
A  I accept that.
Q  "Question: And that was because the story that he had told you and other people at that time was given credence and relied upon as you were looking for these intruders into the house?  Answer: Yes, sir, as I understand it, he was interviewed just slightly by somebody from CID.  I can't remember whether it was Paul Connolly or Bill Ivory or one of the others, but basically, I think, just to get enough facts and descriptive data of the individuals.  I was instructed to accompany CID to the hospital to get a thorough interview with him."  Now, having read that to you, does it refresh your recollection that you had knowledge of a prior interview?
A  This is just what I said.  I remember somebody telling me that he was interviewed slightly at the residence just for descriptive data on the four people he alleges were in the house.
Q  And if somebody from the CID had allegedly interviewed him in depth about the events of that evening, you certainly had not been given that information?
A  Not to my knowledge; no, sir.
Q  And Mr. Hodges, the CID agent, was there when you were conducting that interview; is that right?
A  Yes; he accompanied me on all three occasions; yes, sir.
Q  Now, how long did this first interview take, Mr. Caverly?
A  An hour and 45 minutes.
Q  An hour and what?
A  From 2:25 to 4:10.
Q  Now, there was a nurse and a doctor who were present at some time during the course of that interview?
A  There was a doctor at that time when Dr. MacDonald started to cry.  Now, I don't remember a nurse.
Q  All right, let's back up.  I thought when you originally went into the room there was a doctor already present on the first interview; am I incorrect on that?
A  Not to my knowledge; there was a doctor outside, you know, in the big anteroom there I would call it -- because that is the only doctor I refer to.  I don't remember any doctor being in the room except the one time.
Q  So, you and Mr. Hodges were alone in the room during the first interview with Dr. MacDonald?
A  Yes, sir.
Q  Was there a nursing station nearby?
A  I believe there was a desk out in the anteroom; yes.
Q  When you say the desk was it either a nurse or a medical technician?
A  It was a desk.  I imagine it was where the doctors go.  I don't know.
Q  Did you see any medical personnel in and around there besides doctors -- either a nurse or a medical technician in white coat?
A  To the best of knowledge, I remember the one doctor that we asked permission to talk to Dr. MacDonald.  There may have been other nurses.  I don't recall.
Q  If I were to suggest to you that the notes taken at the nursing station indicate that the only interview that the medical people were aware of was from 1:30 to 2:15, would that seem to be the same interview that you participated in?
A  What -- on the 17th of February?
Q  On the 17th of February.
A  No, sir.
Q  Well, I am interested, if you can tell us, Mr. Caverly, why is it that the time 2:25 p.m. stands out so vividly in your mind even though it is nowhere written in any of these memoranda?
A  I don't know why.  I just happen to remember it and I remember it from notes and, if I recall right, it was on another hearing that I mentioned the same thing.  After nine years, I can't tell you why.
Q  As a matter of fact, when I asked you the same question in July of 1970, you didn't know why you remembered 2:25 p.m. either; is that right?
A  I just remember 2:25.
Q  Now, I want to ask you something about the third interview, the one that you just read this morning.  Do you have that in front of you, Mr. Caverly?
A  Yes.
Q  Now, one of the very last things you told us this morning just before you were turned over for cross-examination was that you stated from the stand what was actually a paraphrase.  You were sort of restating what you have in the last sentence.  You said that Dr. MacDonald stated -- this is your statement.  You remembered that "He had a lot of blood on himself.'"  You remember telling us the same thing this morning; right?
A  Yes, sir.
Q  "But he feels now that the blood was probably from his wife and children."  Do you recall telling us that this morning?
A  Yes, sir.
Q  And then you said to us this morning "Due to the nature" -- and you used the word "their wounds"; do you recall telling us that this morning?
A  I thought I said "his wounds."
Q  All right, again.
A  That is what it was -- "his wounds."
Q  So, if the stenographic record was reviewed that you said this morning "their wounds," was to correct that -- in other words, what you meant to say was the nature of his wounds.
A  Yes, sir; I'm reading from here.  I would say his wounds.
Q  Well, I thought you were reading from that, until you said "their wounds" this morning.

MR. BLACKBURN:  Your Honor, we would OBJECT.

THE COURT:  I will SUSTAIN that.  The jury will recall what he said.

MR. SEGAL:  In this matter, Your Honor, it would be helpful to have it read back.  May we have, after the break, that read back, rather than stop it now?

THE COURT:  I don't know.  You asked about the emotional thing.  You didn't think that was said, but it was.  At 3:50 -- I mean, 2:50 -- on the afternoon of the 27th, the witness says his emotional condition at this time was -- he started crying when he started describing the injuries to his wife and children.
    So I am going to have to ask you to depend on your own notes about these things, and particularly if we are talking about something that I can't see is of long-lasting consequence.  Go ahead.

MR. SEGAL:  I would be willing to make an offer of proof, Your Honor, to the Court as to why I think it is of consequence.

THE COURT:  Very well; make your offer of proof.

MR. SEGAL:  My offer of proof, Your Honor, is that the Government insists that anything that Dr. MacDonald may have said on February 17th, 18th or 19th -- at the time, suffering from various injuries, under the effects of various medication -- that he will be held accountable to the exact "i" and "t" and "p" in this courtroom.
    But agents with papers and documents and memoranda, not under the influence of medication or suffering no injuries --

THE COURT:  Now, wait a minute.  I will let you finish your offer of proof here.  The speeches to the jury will be made at the close of the case.  Come up if you want to.


B E N C H  C 0 N F E R E N C E

MR. SEGAL:  The point we seek to make, Your Honor, is that agents like Connolly making statements and reports twice over, for instance -- you know, February 24th and then again June -- saying things like 500 to 600 interviews, now backing away, saying, "Maybe it was a mistake.  It was an accident", Mr. Caverly making statements which are loose errors; everyone can accept that.
    We want to accept it, except what I want to point out that the Government will hold MacDonald, when they do these, to some precise standard of which, if he in any way deviated from something he said a second time, he is to be viewed as giving statements that were indicative of consciousness of guilt.  And we want to show that.

THE COURT:  I see all of these as just simply matters of argument.

MR. BLACKBURN:  I would just say that he cross-examined at length about the 500 thing.  He showed a discrepancy.  If he can show a discrepancy with this man, fine.

THE COURT:  This witness here professes not to know or remember a thing in the world that he does not have in his notes; and if he said anything else like that, other than that, I would think his testimony would be suspect.  Let's go.

(Bench Conference terminated.)


BY MR. SEGAL:
Q  Now, you also told us this morning, Agent Caverly, that Dr. MacDonald, on this third interview, gave you a description of various events that had taken place earlier on February 17th of 1970?
A  Yes, sir.
Q  And in your reading of your statement of that day, you say that he went to feed his horse behind a shoe shop; is that correct?
A  Yes, sir.
Q  Now, besides what it says in the statement, did you ask him anything about that horse?
A  Not to my recollection.
Q  Did you ever learn that that was a pony that he had bought for his children?
A  No, sir; I had no interest in the horse.
Q  Were you aware that the CID was collecting hairs of all sorts from the house?
A  No, sir; I was not aware of anything else going on.  I made no effort to do it.
Q  If I were to tell you that Mr. Hodges, the CID agent who you say went with you on February 17th, 1970, has said in a sworn statement that the first interview took place at 1:00 p.m. and not 2:25 p.m., would it still be your view that he was incorrect, and that your memory is better in that regard?

MR. ANDERSON:  OBJECTION.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  Having suggested to you that there is such a statement -- and I will be glad to show it to you -- would you want to have time to re-think the precise time of that first interview?
A  No, sir; I am still definite on it.
Q  Do you know whether your interview with Dr. MacDonald on February 17 was prior to or after your having talked to Dr. MacDonald's mother?
A  I don't know Dr. MacDonald's mother.
Q  Did you talk to Dr. MacDonald's in-laws, the Kassabs?
A  Yes, sir; I saw him come out when I was going in.
Q  You saw him coming out when?
A  Somewhere after 2:15 p.m.
Q  Now, you told us that the statements taken from Dr. MacDonald were taken from him as a witness or potential witness; is that right?
A  Yes, sir.
Q  He was not being considered, at the time that you saw him on these three occasions, as a suspect?
A  No, sir.
Q  You also then said in response to questions from the Government that the reason you understood the FBI got out of the case was that no civilians were involved as far as you could determine.  Isn't that what you stated?
A  This is what I learned on Friday; yes, sir.
Q  Beg your pardon?
A  This is what I learned on Friday.
Q  You mean Friday of when?
A  Well, the 17th -- the 22nd of February.
Q  You mean, February 22nd, 1970?
A  It is a Friday, whatever date that is.
Q  I agree with that.  I am just trying to understand.  You say you learned on February 22nd, 1970, if that was a Friday, that there were no civilians involved in this case?
A  That is the first time I recall; yes, sir.
Q  But, of course, in your own interviews with Dr. MacDonald, he had described to you a woman, two white males, and a black male wearing an Army fatigue jacket?
A  I took him for his word, sir.
Q  Right.
A  I learned from evidence collected by other investigators -- this is my own assumption -- that there was nobody else involved in it.  We got out of the investigation on Friday.
Q  Because you had been told, had you not, by CID investigators, that they had decided that MacDonald had done it, and there were not four people?
A  I can't recall that.  I don't remember who said it.
Q  Isn't it a matter of fact, Agent Caverly, that the FBI continued looking for the group of four people described by Dr. MacDonald after Friday, February 22nd, 1970?
A  I will have to agree.  We followed up leads; yes, sir.
Q  Would that not indicate to you that you were still of the opinion that perhaps this was not entirely a military matter?
A  I might be wrong, but I am sure we followed out-of-state leads, which at that time was the policy of the Bureau.
Q  The way you followed them was that you would send to the CID information that FBI agents in various field offices had picked up that they thought was relevant?
A  I don't recall.  I was not the investigator -- I mean, the main agent -- on that case, so I don't know how they handled it.  Now, you say we sent information to CID?
Q  I am asking whether you are aware that the Bureau, after February 22nd, 1970, when you say someone said that there were no civilians involved, was continuing to send information to CID --
A  (Interposing) I am sure we did.
Q  About groups of persons that might be possible suspects?
A  I am sure we did.  If we got information, sure we are going to pass it on.  The military was the logical people to pass it on to.
Q  Would that not indicate, perhaps, that the Bureau itself had not decided on that date that there were no civilians involved in the case?
A  Not to me; no.  I would say we follow up leads, or we did follow up leads on the case, I think, up until this past year.
Q  Well, what I am trying to understand, Mr. Caverly, is that if your testimony is that the Bureau got out on that Friday of the week of the killings because somebody said there were no civilians involved; and secondly, since you already had a statement from Dr. MacDonald which indicates civilian persons, how do you reconcile that with the fact that thereafter the Bureau continued to send information on groups of persons who they think might be involved in this crime?
A  If people come,to us at that time and give us information, we are going to investigate it.  Then we pass it on to the logical authorities, which would be the military.
Q  For the purpose of having them follow it up?
A  I don't know whattheir purpose would be.
Q  Why would it be sent to them if it were not to follow it up?
A  Dissemination.
Q  Or to file in the circular file?

MR. BLACKBURN:  OBJECTION.

THE WITNESS:  No, sir.

BY MR. SEGAL:
Q  Mr. Caverly, was there some other special agent in the FBI who was really in charge of whatever work the FBI did that first week of the crimes in February, 1970?
A  There was a special agent in charge of the Charlotte Division, Robert M.  Murphy, who came down here on a personal on-the-scene.  As special agent in charge of the whole division, he was in charge of the investigation.
Q  Then, it is fair to say that your only role in the investigation was basically to get these three statements you have talked about?
A  My only role was to interview Dr. MacDonald and that is what I did.
Q  And that is all that you did?
A  To the best of my recollection; yes, sir.
Q  And, of course, all this information that you have given to us on both Friday and today are the same facts that you gave in 1970, in the military proceedings in this case?
A  To the best of my recollection; yes, sir.

MR. SEGAL:  I think so, too.  No further questions.

MR. BLACKBURN:  We have no further questions, Your Honor.

THE COURT:  Call your next witness.

(Witness excused.)