August 1, 1979
MR. MURTAGH: Your Honor, if I may beg the Court's indulgence for a few seconds. It takes a few minutes to get this material set up.
THE COURT: All right.
MR. MURTAGH: Your Honor, at this time we would mark and offer Exhibit 638, reflecting the ABO Blood Groups found in the MacDonald family.
MR. SEGAL: That is not agreeable, Your Honor. That is not agreeable.
THE COURT: Not agreeable?
MR. SEGAL: At this time.
THE COURT: All right.
MR. SEGAL: We would need a few minutes to finish reviewing the charts before we decide whether they proceed in the fashion Mr. Murtagh wants to proceed. It is possible, but I need a few minutes to do that.
Now, if there is something else --
MR. MURTAGH: (Interposing) Your Honor, the blood groups are in evidence. The autopsy records -- Dr. MacDonald's own medical records establish four ABO Blood Groups found in the MacDonald family; and further we would establish through testimony that the distribution of the specific components found in those blood groups can be established by the next witness.
THE COURT: Maybe he can take a quick look at whatever it is you propose to say there, and maybe we can,save a little time that way.
MR. SEGAL: Mr. Murtagh, are there any more that you are going to use now?
MR. MURTAGH: Yes, surely.
B E N C H C O N F E R E N C E
MR. BLACKBURN: I was going to suggest perhaps to expedite this as smoothly as possible, maybe the jury could take its lunch at 12:30 and come back at 2:00 rather than 1:00 to 2:30 giving Mr. Segal the opportunity --
THE COURT: (Interposing) Well, the problem with that, as I told you yesterday, I have scheduled a hearing for 2:00 o'clock today.
MR. MURTAGH: Your Honor, I would like to state simply for the record that at 9:00 o'clock this morning I received a call while I was in the U. S. attorney's office that Sarah, I believe, and Dr. Thornton were here and I was to come down with the charts, which I did.
Maybe Mr. Segal is not talking to Dr. Thornton but that specific chart was shown to him. It has previously been shown to Mr. Smith.
THE COURT: Are you telling me that is okay with Thornton?
MR. MURTAGH: It is okay with Thornton.
THE COURT: Thornton is a pretty good lawyer as evidenced by some of the affidavits he signed.
MR. MURTAGH: And didn't read.
THE COURT: I don't believe he is in charge of the case.
MR. MURTAGH: Your Honor, I understood by his presence and Ms. Simmons' presence that he was acting in Mr. Segal's stead, in reviewing the charts.
THE COURT: You are forgiven, but you have run into the problem that Mr. Segal says he hasn't looked it over as much as he would like to.
MR. MURTAGH: I would certainly like to accommodate Mr. Segal.
MR. SEGAL: The way to proceed practically is, instead of rushing to put the charts up, put the witness on to start. I will have a chance at our regular break to look at them and hopefully they can be discussed with the Government.
THE COURT: Who did the chart? Did this witness do the chart?
MR. MURTAGH: Your Honor, the chart was done by the FBI Graphics Section, but what it is --
THE COURT: (Interposing) Can this fellow identify it and swear that it represents the truth of the matter thereon said to be depicted?
MR. MURTAGH: Your Honor, based on the admission of the medical records proving the four blood groups, yes; he can. I mean he can't testify that Colette MacDonald had Type A blood. That was established by her autopsy record and by Dr. Gammel's testimony. It is the distribution of the antibodies and antigens within that --
THE COURT: (Interposing) This case is not going to rise or fall on this thing; is it? Why don't you let him go ahead and put it in? I will strike it out --
MR. SEGAL: (Interposing) I think there is a problem in the display of the facts. All I asked him to do was go ahead with the witness. I mean we can hear the testimony. It shouldn't affect this at all. I need a chance to talk to Dr. Thornton. I cannot do it in three minutes and probably need five minutes with him.
Rather than delay it, I am willing to let him go ahead with evidence that the charts -- you are going to have Chamberlain on for a while; aren't you?
MR. MURTAGH: We cannot go ahead with Chamberlain until I know where I am going with the chart. Your Honor, if Mr. Segal has five minutes with Dr. Thornton, I will ask the Court's indulgence.
MR. SEGAL: You can put on the witness. I don't know whether the chart ever came first except to try to make it easier on people, but I think there is nothing unreasonable in saying let's start with the testimony. I will have a chance to look at the chart.
THE COURT: Well, is it a question of the authenticity of the chart or that it may show some information with which you will take issue factually?
MR. SEGAL: Yes; the way that the information is displayed. We may take issue that it does not correctly display facts as we see them. I have a note from Dr. Thornton that suggests he needs to talk to me about that matter. I would need five minutes probably -- literally five minutes.
I suggest we go ahead with the testimony. If the Government doesn't want it, then I am at Your Honor's -- more open to Your Honor's suggestion.
MR. MURTAGH: Your Honor, before that, could I ask: is Mr. Segal disputing the four ABO blood groups that are in evidence through the medical records which have previously been admitted in this case? Is that what he is disputing? I don't know.
THE COURT: If he is, it will be the first time that I ever heard there was any question about that. He is not disputing that.
MR. SMITH: I don't think there is any problem on that, but I do think one of the problems with the chart is that it has the family member; that is, the first family member, and then in the next column it has that family member's blood type. If we use that chart at the beginning, we can assume the jury does not know anything about blood groupings, and they don't know maybe that there are four blood groupings.
They will think that that family member is the only person in the world who has that particular type blood. We want to be sure that the jury understands that that family member is among a billion other people in the world.
MR. MURTAGH: There is no question with that.
MR. SMITH: The problem is putting the chart up first since that is almost like a stipulation.
THE COURT: Well, I don't believe that that is really a serious matter. If they got that momentary impression, certainly the first witness when he opened his mouth would say that these are common and all of us have one or the other of them.
MR. SEGAL: If you will start with that.
MR. MURTAGH: The witness will specifically testify that he cannot say that the blood stains he tested are the blood of that particular person but rather that they are of that particular person's group. That is the way he is going all the way down the line.
MR. SEGAL: We ask for some foundation testimony, Judge. If the Government will do just that.
THE COURT: Start out your first question. Go on and use your chart but start with clearing up his objection.
MR. SEGAL: That would be satisfactory.
THE COURT: All right.
(Bench conference terminated.)
Webmaster note:The original stenographer's misspelling of Thorton was corrected to Thornton in this transcript.