Trial Transcripts

August 13, 1979

Bench Conferences and Discussions

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, August 13, 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.  Any further evidence for the Government in this case?

MR. BLACKBURN:  Your Honor, before we answer that question, let me confer with Mr. Segal and Your Honor.

B E N C H  C O N F E R E N C E

MR. BLACKBURN:  On the matter we were discussing Friday afternoon on the scalpels, are you willing to stipulate to those, or do you want us to bring a witness in?

MR. SEGAL:  What is it that you want to offer?

MR. MURTAGH:  We'd want to offer the scalpel blades, the hypodermic syringes and where they came from in the house.

MR. SEGAL:  I would like an offer of what is the relevancy of it.  I understand the Government wants to offer some more medical supplies they found in Dr. MacDonald's house, for which, to the best of my knowledge, they play no part in the Government's case.

THE COURT:  I think there are two questions.  First, it is a matter of authenticity -- any question about the identification of these items as having come from the house.

MR. SEGAL:  I will accept the Government attorney's representations of that fact.

THE COURT:  Then, do you object on relevancy grounds?

MR. SEGAL:  Yes, Your Honor.

THE COURT:  All right, let's address that then.  That is number two.

MR. MURTAGH:  Your Honor, I believe that it is an issue in controversy in this case as to what, if anything, inflicted the wound in Dr. MacDonald that caused the pneumothorax.

MR. BLACKBURN:  One of the doctors said it could have been done with a scalpel.

MR. MURTAGH:  I believe it was Dr. Gammel; he said it could have been done with a scalpel.

THE COURT:  You want to show that there is one available?


MR. MURTAGH:  Also, on the issue of nothing stolen from the house.  Mr. Ivory testified about syringes.  I think it is a relevant issue.

MR. SEGAL:  I don't recall testimony that Dr. Gammel said it could have been caused by a scalpel.

THE COURT:  I believe he did.  I believe I recall that.

MR. SEGAL:  My recollection was he was describing, you know, the type of incision it was.  I think that was more descriptive.

THE COURT:  Well, it may be that exactly what he said was not that this could have come; but the word "scalpel," I believe, was mentioned in this testimony.

MR. MURTAGH:  Yes, sir.

THE COURT:  In other words, you got the idea -- look, this case is not going to rise or fall on that.  I am going to let the thing in.  My general approach to relevancy is that if it is completely irrelevant it is not going to do anybody any good and not going to hurt anybody in most instances, so I will let it in.  But now we won't have to call a witness.

MR. BLACKBURN:  Yes, sir.

MR. MURTAGH:  Your Honor, at this time we would also renew our motion on the psychiatric testimony.

THE COURT:  Now, listen, you fellows have opened a can of worms on that, and I did not get the Defendant's brief on that -- well, it was filed Friday afternoon about 4:00 or 5:00 o'clock.  I did not find it until Saturday morning, but I have just got a lot of other things to do.  I worked all weekend but I did not get to read it or do any research on that until last night beginning about 8:00 o'clock.  I worked about four hours on it and read all the cases that they cited and so forth, and have done a little this morning; and of course the clerks did not even have it, so they were not able to do anything on it.  But it looks like we are doing business with a can of worms here on that proposition, and this is not something that I want to handle at a side bar conference.  I want to hear you gentlemen on that score as much as I dislike to have the jury running in and out I think this is important.  It ought to be given a full airing in open court.

MR. MURTAGH:  Yes, Your Honor.  Something else I would bring to the Court's attention is we have the forensic psychiatrists and psychologists here.  As you can imagine, they are antsy witnesses to have on tap.

THE COURT:  Well, what I am going to do on that -- I think maybe we had better stop this morning.  We are going to have to send them out anyway for arguments on the motion for Judgment of Acquittal, but I can say this -- I will tell all of you this now -- if the evidence is to come in, then of course because it has been so delayed in bringing it to a head and getting the Defendant's side of it, then I am going to give you an ample opportunity to have the man examined and get your own evidence.  It would not be fair not to do that, I don't think, if I let it in; so you won't -- if you have that time, or if you have some time out of the trial.  But after all if we have been here for four weeks and facing three or four more, a few hours is not going to make that much difference.

MR. SEGAL:  We have a number of legal matters, Your Honor; I would think after -- you say -- if this is the final piece of evidence that the Government's going to offer?


MR. SEGAL:  If the Government is going to rest, we have a number of issues; and I suppose they all could be argued in open court without the presence of the jury.  I think we are going to have the jury for a few minutes.  Certainly our Motion on Directed Verdict of Acquittal -- the Motion to Dismiss.

THE COURT:  All right.

MR. SEGAL:  I want to make two other motions in regard to striking the last two pieces of Government evidence, and I want to be heard on that.

THE COURT:  Is that those chart things?

MR. SEGAL:  No.  I'm talking about the Stombaugh-Green experiment, and I have a motion in regard to the Esquire magazine.  It is beyond what we talked about.  But anyhow I need to make that --

MR. SMITH:  (Interposing) Judge, we still feel that we are being very badly hurt about the transcript, and we hate to ride that horse again; but we do want to review our motion.  We filed a motion and we contended the Defendant does not have the money to pay for the transcript.  I have talked with the United States attorney about it, and we have tried to work something out.  We feel that we do not have the money to pay for that transcript and we need it.  We need it especially now.

MR. ANDERSON:  Let me say on behalf of the United States attorney's office that I have been involved in that discussion at length --

MR. SEGAL:  (Interposing) There is also one other motion.  Oh, I'm sorry; I beg your pardon, George.

MR. ANDERSON:  Mr. Smith and I have talked about the situation in connection with the transcript.  I told Mr. Smith that we would consider making it available to the Defendants, not at the cost the Government had to pay, but at the cost that it would cost them at the end of the trial -- that is $1.50 a page.  And then he indicated to me that the Defendant was unable to do this.  Subsequently, I suggested to Mr. Smith that this Defendant should not be treated any differently from any other defendant -- that if he signed an affidavit of indigence, and the Court found he was indigent, that we would supply on the Court's instructions a copy of the transcript.  That is the position of our office.

THE COURT:  How much does this man make a year?

MR. SEGAL:  $60,000 gross, all sources of all income.

THE COURT:  That is incredible, absolutely incredible.

MR. SMITH:  That he doesn't have the money?

THE COURT:  No, that he makes $60,000 a year gross.  That is simply --

MR. SMITH:  (Interposing) You mean that's too little or too much?

THE COURT:  Too little.  Let me tell you, they make over $100,000 just working here in Raleigh in the emergency rooms.  In Los Angeles, my guess is that this man's income is between $150,000 and $200,000 a year.  He is head of the department.  I bet you anything in the world it is.

MR. SEGAL:  We have an affidavit to file signed by Dr. MacDonald.  We would be glad to supplement that information with anything Your Honor wants.  I will tell you, just here at side bar, that his total assets in the world are the condominium house he lives in -- apartment, really -- which has been mortgaged and re-mortgaged for this trial to 100 percent.  He owns an automobile.  He has a power boat, which was borrowed on fully.  It is not owned outright -- him and the finance company.  The balance of it was borrowed fully, and that is it; and his income -- he receives during the course of this trial that part of his salary which went for administration -- they let him stay on salary on that.  But the part of his earnings which come from actually working as a physician in the ER, rather than doing administration -- that part, of course, he is not earning, because they are literally paying another doctor to cover his space.  We have, I think, set that out in paragraph four or five of the motion.  Again, I would offer the Defendant under oath in regard to any matters of his finances for the Court to examine in this regard.

THE COURT:  Well, we just got too much else to do.  I have been into that once; I am not going to do anything else about it right now.  If you can arrange some deal with United States attorney, well and good.  I don't want to deprive you of anything, but -- anything else to be taken up this morning?

MR. SEGAL:  I guess we needed to know what was Your Honor's feeling that once the Government rested its case would we excuse the jury so that we then could go and argue whatever agenda that we have here -- the motion to dismiss and several other things?

THE COURT:  Well, you've got that, and the Sadoff matter.  What else do you have?

MR. MURTAGH:  The only other thing is we have a motion that we have filed requesting that any expert witness who testifies on the basis of hypothetical questions, that the questions be written out in advance.

MR. SEGAL:  We have not seen any such motion.

MR. MURTAGH:  I did not say we have filed it; I said we were going to file it.

MR. SMITH:  Judge, it is incredible.  I mean, I feel like sometimes I am just going to absolutely go berserk.  We never objected to any of their hypothetical questions; they asked them over and over.  If they're going to make us dot our i's and cross our t's, you know, if we are really at war in this case -- if there is not going to be any cooperation -- then to heck with trying to be nice.  We never made them --

THE COURT:  That motion is not before me right now.

MR. MURTAGH:  Let me just say the reason we make the motion is that after we had talked to the witness -- Dr. Osterburg -- at that time, he had not been to the crime scene.  I understand subsequently he has; but at any rate, after talking to the man, he listened to one day of trial testimony, and apparently read the transcript from the Article 32.  In other words, he was not immersed in this case to the extent that the jury is; and I feel that if he is testifying on the basis of hypothetical questions, the hypotheticals must be consistent with the facts in evidence.

THE COURT:  Well, if you don't feel that it is, make your objection.  I have never had an objection like that made.  I reckon I was on the defending end of more hypothetical questions than any lawyer that ever appeared in Raleigh.

MR. SEGAL:  While we are talking about hypotheticals -- I think it is the wrong time -- but I just do want to point out, Your Honor, that since the federal rules of evidence were adopted in 1975, you don't have to proceed by hypotheticals -- save us all that problem of, you know, that "you left out a word, do it all over again" kind of thing that we used to do all the time.  Your know, you are screaming "objection," you forgot that he didn't, you know, comb his hair, when he was setting up his hypothetical.

MR. MURTAGH:  I have no objection, Your Honor, to the man testifying as to what he did or what he saw and what he compared.

THE COURT:  All right, let's go.

(Bench conference terminated.)

THE COURT:  All right, I understand the Government has one more series of exhibits to introduce.

MR. MURTAGH:  Yes, Your Honor.  Your Honor, at this time, the Government would move in exhibits previously marked -- Government 1147, which is a 14 Stylex-brand disposable hypodermic syringes with needles which were removed from the linen closet in the hallway of the MacDonald quarters; Government Exhibit 1148, eight boxes, each of them containing 12 23-gauge hypodermic needles, boxes in foil wrappers also removed from the linen closet; Government Exhibit 1149, which is 19 surgical knife blades, each containing a foil wrapper bearing the name Sterry-Sharpes and each marked for identification, also removed from the linen closet.

(Government Exhibit Nos.  1147, 1148, and 1149 were received in evidence.)

MR. BLACKBURN:  Your Honor, that concludes the evidence for the Government.

THE COURT:  The Government rests?

MR. BLACKBURN:  Yes, sir.

THE COURT:  Any evidence for the Defendant?

MR. SEGAL:  Yes, Your Honor.  There are some preliminary motions I think the Court would need to hear in this matter.

THE COURT:  Very well.  Do you feel the motions should be heard in the absence of the jury or can you make them here at the bench?

MR. SEGAL:  Probably out of the hearing of the trier of facts, Your Honor.  I should say I don't object to it, Your Honor.  I think our usual procedure is to do it that way --

THE COURT:  Yes, I believe that would be preferable in this instance.  Members of the jury, the Government has rested its case.  This is usually the point at which some legal motions are made with which, of course, the jury is not concerned.  In view of that, I will let you retire to the jury room and be at ease until we call for you.  Meanwhile, however, I must renew my previous instructions that you are not to talk about the case or discuss it among yourselves and, of course, there won't be any others with whom you can discuss it.  Keep open minds about the case.  You have heard one-half of the presentation -- that is, in terms of parties.  You have heard one party but you have not heard the other party.  I don't mean to say that the other party will be equal in terms of time required to present the case, but you must keep open minds until you have heard it all and heard the arguments of counsel and the instructions of the Court.  If you will retire, please, to the jury room, we will hear these legal arguments and let you come back when we call for you.

(Jury exits at 10:17 a.m.)

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

THE COURT:  Before proceeding further, the Court would like to express its pleasure at this time, and, in fact, it is honored to have Chief Justice Emeritus William H. Bobbitt of the North Carolina Supreme Court as one of our spectators inside the bar this morning.  Justice Bobbitt, we are so pleased to have you and honored, sir.  I understand the Defendant has a motion he desires to make at this time, and I will hear you.

MR. SEGAL:  Yes, Your Honor.  I have, in fact, and Mr. Smith also has, a number of matters.  I think the principal matter that we wish to argue this morning would be in fact the Defendant's Motion to Dismiss the indictment against him.  However, preliminarily, I have two motions to make in regard to striking evidence heretofore received by the Government, it being among the very last of the evidentiary matters offered by the Government.  I would like to be heard at this time on those, if I may, first.

THE COURT:  All right.

MR. SEGAL:  First, if Your Honor pleases, I would Move to Strike all of the evidence of the reading of the Esquire magazine that was done here in court the other day by one of the counsel for the Government.  The Motion to Strike is based upon the very limited relevance given the Government's theory of this case -- as opposed to the serious prejudice that the reading of the article introduced.
     In other words, while I understand what the Government's theory is, I think that the Court having to look at the evidence and giving the Government a chance to present its case as best it can must give some credence to their theory of the case.  Nevertheless, the prejudicial impact of reading those articles far outweighs that.
     As I understand it, the purpose of reading the Esquire magazine articles was to suggest that in those articles there appeared words or ideas that somehow were communicated to Dr. MacDonald.  The assumption is that from those ideas he then thereafter used that magazine as a source of explanation for the events and circumstances of the killing of his family and of his own injuries.  However, the fair, I think, context of the total articles -- as we sat here for more than an hour and a half and listened to them -- that while in fact words do appear that the Government would extract and say comport with its theory in some way, that there are two problems with that.
     First of all, the overwhelming thrust of those articles had to do with witchcraft, Satanism, hedonistic cult behavior, and like in California.  I submit to you, Your Honor, that that is prejudicial to this Defendant.  There is implicit in that, as the jury sat here for an hour and a half listening, there must be something in the Government's case that makes them think that Dr. MacDonald in some way relied upon, adhered to, was involved in, believed in, or in some way was connected with this concept of witchcraft, hedonism, or cultism.
     Now, I recognize that that is a problem that the Government finds itself in when it takes an article that is on a totally extraneous, remote subject from this case and attempts to extract an idea from it and use it in this case.
     But the trouble is they have introduced in an overwhelming fashion an article whose subject matter in no way can the Government show or even hypothesize has any connection with this case.  It does have the substantial tendency, though, of planting in the mind of one or more jurors that it must be connected to the case; otherwise, why would we have been subjected to an hour and a half of reading about witchcraft, Satanism, and cultism.
     The articles are also, I think, blatantly offensive to the sensibilities of average people.  I mean the concepts -- the ideas about religion, the mocking of religious beliefs -- of what I would call general beliefs about religion, is implicit as these sick and demented persons who the author of those articles says he interviewed; that those ideas tend to permeate the trial when they had no business in this trial.
     Again, the only effect cannot be to hurt the Government's case.  It can only be to prejudice the Defendant somehow again suggesting that those ideas are surrounding him; surrounded his life either at that time in 1970 -- or perhaps because everyone is perfectly aware in this case that Dr. MacDonald subsequently moved to California -- it suggests that perhaps his move to California is related to interest in Satanism, witchcraft, cultism, and hedonism.  Now, all I want to suggest to the Court is that the words or ideas that purportedly are in that magazine are words that were commonplace in 1970.
     The word "acid" was not newly revealed by Esquire magazine.  We had known about and read about the effects of LSD at that point for more than ten or 12 years.  The whole generation of Woodstock had taken place.  Life magazine and every television station, every radio station had made Woodstock and drugs and acid and all those terminology commonplace and well known.
     We did not need to subject the jury to the extraneous idea of just simply bizarre conduct to a reading of it with the suggestion and the hint behind it that it belongs in this trial.  It just seems to me on balance that the Court has to say, "I know the words the Government wanted, but the total effect of what they read to the jury tends to convey some larger, different image," and that to leave that to lie in this case -- to leave it in at all -- is to present considerable danger of prejudice.
     I cannot assure the Court and no one can assure the Court that the jury won't see it that way.  Nor can I assure the Court that they will see it in some negative fashion.  All that Rule 403 says is that, if it has the potential, if it is prejudicial -- the potential for it on balance seems to be greater than the probative value -- the Court ought to err in favor of a safe trial,a trial where whatever small value there, are in the words of that article of the Government ought to be protected.
     That small value ought to be protected, however, from being inundated by all of this terrible, abusive, insulting matter.  I find the comments about religion, about beliefs of Americans in general in that article to be so offensive that, although I have heard it before, I find myself literally upset hearing it again, read out loud, as if it in any way should be imputed to anybody in this case.
     Now, I consider myself somewhat more able to hear those things in detachment, having been exposed to them before from a professional standpoint.  What are we to expect, Your Honor, from the jurors?  What are they to feel about this matter?
     All we can say that either absent the granting of our Motion to Strike and an Order to
     Disregard -- that either that or we must have in the alternative therefore a very careful, I think, instruction from the Court to say those articles in no way should be meant to impute any of that behavior, that thought pattern to this Defendant or the Defense case in any side.  But it seems to me, once you get into that we begin to reemphasize to the jury the whole problem of those articles.
     Therefore, my own suggestion -- my own strong urging -- my motion at this time, Your Honor -- is that, under 403, having weighed the benefit of the article to the possible theory of the Government's case, that it is prejudicial impact, or the potential, therefore, I think, militates -- in fact, directs -- the Court to strike it with an instruction to the jury to disregard.
     I must say that I am certainly an advocate for the Defendant's position, but having listened in all fairness to that article, one barely hears the words, the ideas the Government wants.  It is so buried in all of that.
     I would have said to Your Honor that there is no conceivable basis for any Defense objection if they had never introduced the article at all, and simply at the end of the case said, "He probably read about it in the newspapers about this case or that behavior or this bizarre thing."  It was common knowledge, and that is where the idea came up from.
     Nobody could object to that.  We all know the matters of common public knowledge -- that the words "acid" were being talked about.  They were all over the community.  They were well known by anyone who was alive and alert in 1967, 1968, 1969, 1970 --

THE COURT:  (Interposing) Are you telling me that you would not object to counsel's arguing something that was not in evidence?

MR. SEGAL:  Absolutely, Your Honor.  Terms of general usage do not have to be proven.  You could say, "Members of the jury, we all know -- we all know that the word 'acid,' you know, was talked about at that time" -- that is not a matter under Rule 1001, 1002, and all the matters on judicial knowledge on arguable points that need to be proven.
     I do not think you have to prove anything about the word "acid."  It is part of our vernacular.
     It is found in dictionaries --

THE COURT:  (Interposing) You are from California and I am not sure that the word "acid" is in common parlance in Johnston County and Warren County, and Harnett -- the places where these jurors come from.  Maybe some of them are sophisticated enough to have heard the term "LSD" and the use of acid as synonymous with it, but I am not so sure about that.

MR. SEGAL:  May I make two observations in that regard?  First of all, in 1970, when this court case was first brought and the charges were brought, I was not from California.  I was from Philadelphia, and even in Philadelphia, we had heard of those things.  We were among the last to get the word anywhere.  Secondly, if Your Honor pleases, what we are talking about -- what are the articles about?
     The articles talk about the Manson case, the Tate-LaBianca murders.  Now, one had only to be alive and have the barest acquaintance with newspapers and television to know that that is what was being talked about from 1969 on -- about those cases.
     We are not talking about terms that were not in general awareness simply because the media, even in the most remote places of America -- let alone in an area of metropolitan Fayetteville -- let alone in the area of metropolitan Raleigh -- that those words struck me as not being that significant.
     Further, there are better ways it should have been done -- ways without the prejudicial impact of telling us about Satanism and all this hideous behavior that somehow suddenly it is to be imputed to the Defendant.
     They need only have called in an experienced narcotics officer, someone who worked in the area, or CID agents who were on this case.  Or was the term common parlance among soldiers at this time?  Was it talked about in the community?  Did you ever see it in the press and talked about it or were these words of the inner sanctum; the inner group only knew of these words?
     Very frequently in cases where you would have simpler matters -- you know, where you have bookmaking cases -- you know, where it says, "Two on number seven at Belmont," -- what does that mean?  And an officer translates that from the obscure into the English and all the jurors instantly are now informed about what code words mean.
     But these aren't code words.  These are words that any Government witness -- Mr. Ivory, Mr. Shaw, Mr. Connolly -- all of those persons -- any of the MPs could have said -- was the term "acid" being used by you or talked about by a person you' picked up for LSD?
     But what has been allowed to happen here is the Government, in an attempt to prove that which it could have if it was necessary, simply and frontally proved, has gone by way of this -- I would suggest to you -- this absolutely piece of trash, this Esquire magazine, introducing all of that trash which is not relevant to this case and somehow letting it lie here as though it is evidence against the Defendant.
     And we say to the jury, now, we are not trying to impute to Dr. MacDonald interest in witchcraft, Satanism, hedonism or occultism; just extract those couple of words.  But it is the kind of thing that Justice Jackson in the Krulewitch case once wrote in the Supreme Court that only lawyers -- and I suppose by definition, judges also, sir -- only lawyers can persuade themselves that normal, ordinary human beings can compartmentalize their minds in some kind of fashion and use evidence for the limited purposed that we say out loud we want them to use.

THE COURT:  Let me ask you, then, two questions.  I think I have your position.  Where did you object to the reading of the article by -- I believe it was Mr. Crawley who took the stand.  Did you make any objection at any time during the course of his reading the article and all of these references to satanic practices in California?

MR. SEGAL:  Your Honor, indulge me for a moment.


MR. SEGAL:  If Your Honor pleases, I think the Defendant made his opposition to this matter appear twice: first in the Motion in limine pretrial, which he objected to on irrelevancy grounds, on its remoteness grounds, and again when Your Honor had decided that our motion was not well taken and denied it -- that when Mr. Crawley started the reading after we had been subjected to this for some time, we asked to come side bar and renewed our objection saying, now -- the Court having heard it in contextual situation, now this is being read, we renewed our motion saying, "Your Honor, I think it is now apparent to the Court; I hope we also -- what we have objected to pretrial in this matter."
     I think Your Honor's view was that the jury heard so much already they ought to hear the rest of it; but I don't think that that puts us in the position of having in any way waived.
     I think that the fact that we had not even said anything about it at that time through Mr. Crawley reading -- that we could not be faulted.  The Motion in limine is a motion dealing with either the admission or exclusion of pieces of evidence.
     If I remember, during the pretrial, you know, hearing of the matter, the Government proffered the article about and what it was going to say to it.
     The Government filed a memorandum of the various words it wanted to extract.
     I think that we have done all that we in fairness could be asked to have done in this matter.
     It should have been taken out; it should have been kept out.  Once it started we objected to it, and I think that now at this stage -- I think it should be stricken, with appropriate instructions to the jury to disregard at the very least.

THE COURT:  All right, sir, now, my second question: do you feel that an instruction to the jury to disregard it at this time, properly emphasized, would cure what you perceive to be the error in the situation?

MR. SEGAL:  I would be satisfied on behalf of the Defendant if the Court gave an instruction which made clear -- not to simply disregard -- but the Court felt because of the total content -- had no bearing, on the whole, on this Defendant or his life style --

THE COURT:  (Interposing) That I read your speech to the jury?

MR. SEGAL:  An edited version, yes, Your Honor.  Actually, I would be willing to proffer, Your Honor, as I did I think in regard to the jury view what I would hope to be a lawyer-like and fair statement.
     I would not ask Your Honor to, be the advocate for my position, though I do think something more than a mere statement of disregard is in order.
     I would be willing to draft such a statement that could be discussed by counsel.

THE COURT:  All right, a recollection of this last side bar conference escapes me at the moment.  I will see if counsel for the Government can remember that and what was done.
     Let me say that I was of the impression that the jury was bored and to the point that they were getting impatient.  That was my own feeling.  It was hard for me to follow this thing, and I seem to recall -- having said, "Well, wonder why doesn't somebody cut this short or make an objection?"
     You say now that one was made, and I do not recall it, but I don't say that you did not because in four weeks I give myself credit with being able to forget one or two things.
     But that was my impression of the jury's reaction.  Of course it was just a silent thing, but you can see them fidget occasionally.  I had rather assumed that the Government would just introduce those portions of the articles which by virtue of the Defendant's admission to having read some of this material, and to having his fingerprints on it, that they would confine their publishing to the jury to those portions in which the same words used in the Defendant's explanation of this matter, plus the writing of the word "pig" on the headboard of the bed, and those terms.
     But they didn't do that.  They chose to read the whole thing, except that I got the impression that along toward the last of it that they were beginning to get this feeling that perhaps they had taken the wrong tack.
     Then and only then did they begin to shorten it and just read excerpts from it.
     Let's hear the Government on this matter.

MR. BLACKBURN:  Your Honor, with respect to the last portion you were speaking about, I recall Friday during the reading of the Esquire magazine, Mr. Smith approached the bench with counsel for the Government and did, as I understand it, state to the court that he thought it was irrelevant, and so forth, and renewed that statement.
     I believe I'm quoting him correctly.  With respect to why we chose to read the entire articles, I think it ought to be pointed out that at the -- well, not at the pretrial, but at the hearing we had a couple weeks ago on the question, where the Defendant's attorney had stated that we hadn't even proved that the Defendant himself had read the article, objected to our introducing certain small portions of it and wished the entire article to be read so that it would not be taken out of total context.

THE COURT:  You thought it was in compliance with 1006?

MR. BLACKBURN:  That is correct.  We would have much preferred, I might say, to have done the entire matter as we did the last five minutes of it -- simply read the words and pages -- because obviously that would have made it much more effective for the Government.
     I would say in response to his statements this morning, I think the evidence is totally relevant.  What weight it will be given, of course, is up to the jury, if any weight.  I think that we showed that the Defendant read it, by introducing the Grand Jury testimony.  We showed that his fingerprints were on the article.  We know that he discussed it with Ron Harrison from the Grand Jury testimony.
     We know that terms consistent with his own story or version of what happened to him and his family are in that article or articles, such as the word "pig" on the headboard, the words "acid," "groovy," "rain," "a retinue of four," "candle," "a girl with long hair," the whole bit, Your Honor.
     We are not suggesting necessarily that that's where it came from, but we are saying that it is quite conceivable that after having read that article and committed the murders that we allege that he did, that that was used as a cover or the inspiration, I take it, for the story that was in fact given out at a later time to both agents and the news media.
     With respect to what the articles contained, I think the fact that they contained the Sharon Tate murders and that sort of thing is a striking resemblance to some of the things which occur here in this case -- a band of hippies or intruders, as they say, coming in and killing everyone; and the types of overkill that was done to the three members of the family.
     You know, it strikes me as odd that the Defendant's lawyer -- he seems to me to be going in a sort of circular argument this morning when he belabors on the one hand that these terms are commonplace, read everywhere, and even I suppose, Raleigh, North Carolina and Johnson County might have heard of them.
     But if that be so, then what is so prejudicial about the use of these very terms themselves in the magazine article?  It is difficult for me to see how the Defendant can have both sides of that argument.
     The Government basically believes that this evidence is relevant.  The Defendant's attorney calls it trash.  If it be trash then we show the Defendant read it.
     I think the evidence is quite clear that it is relevant and proper in evidence.

THE COURT:  All right, sir.  Do you want to respond to that, Mr. Segal?

MR. SEGAL:  Judge, to the very last part of what Mr. Blackburn said, I do not wish to needlessly prolong the argument.  The point is not well taken that because we say the words were in common parlance and Mr. Blackburn says, "See, that proves we are entitled to read the article."  The article is not about merely such words being used in common parlance.  The article is about these other matters that I have repeatedly referred to the Court about: cults and witchcraft and Satanism and bizarre conduct in the extreme.  That is the totality of the article.
     The harm is not the fact that one introduced some of the words.  That is their prerogative.  I think they could do it in this case.  I suggested what I think are at least three different direct methods without the tremendous overflow of prejudice.  I am just concerned that some one or more jurors are going to come away with the feeling somehow; "If the Court allowed all that business about cults and Satanism and witchcraft to be read to us, there must be some suggestion that maybe that is what MacDonald was up to or into or that is why he then moved to California."
     Now, it puts a burden on us, among other things, if it is not either stricken or with a careful instruction to the jury, to among other things explain it at some considerable length during the Defense testimony that Dr. MacDonald had not the slightest remotest connection, approval or any relationship to this kind of bizarre behavior.  We have to perhaps even talk about it again, or else we are faced with again the possibility that some juror are wondering, "Well, why didn't they ask him whether he believed in all that sickness that is described in that magazine?"
     That would then place an unnecessary, unfair burden on us.  It seems to me that what we ask is rather minimal and moderate in this regard.

THE COURT:  Well, like so many other questions that have been raised in the course of this trial, this is an interesting one, and one which I view as having merit on both sides of the argument.  I am inclined to the view that the evidence is relevant.  I do not feel that the portions of it to which Counsel for Defendant takes great exception -- that is the cultism and religious aspects and connotations of it -- I do not feel that they will have that effect on the jury.
     I think that is maybe background material.  I don't think that any juror would attribute those kind of beliefs to this Defendant.  But the accessibility of the almost identical information concerning the parties and the manner of the murders and the terminology, the words used and so forth, I think have some relevance.  I will OVERRULE the Motion to Strike and to instruct the jury on that score.
     Now, you had a second Motion relating to evidence.  That had to do with, as I recall in the Bench conference, the evidence of the witness Stombaugh and the witness Green?

MR. SEGAL:  Yes, Your Honor.

THE COURT:  I will hear you on that.

MR. SEGAL:  At this time, with the leave of the Court, Your Honor, I would like to hand up an additional Memorandum of Law in regard to our Motion to Exclude that testimony.  I suggest here, Your Honor, that in this Memorandum of Law, the authorities cited are the same.  However, there has now been extended discussion, I think, of the facts of the experiment that was presented by Mr. Stombaugh and Ms. Green.  However, the case law is the same case law that Your Honor has previously seen in our first submission in this regard.

THE COURT:  Give me some estimate if you can as to how long this argument will require.  It is going to take a minute or two to look over your Memorandum if you want me to have the benefit of it before you begin speaking.

MR. SEGAL:  I would be appreciative probably if Your Honor had a chance to read the Memorandum over.  You would have the major factual points I wanted to make rather than having restate them, which probably takes longer.

THE COURT:  And then, of course, you have a Motion for Judgment of Acquittal?

MR. SEGAL:  Yes, Your Honor.

THE COURT:  Which you want to argue.  Give me some time estimate on it if you will -- on the two Motions remaining.

MR. SEGAL:  I would say, Your Honor, I would like the Court's indulgence for about ten minutes on the Motion to Exclude the Evidence or strike now the evidence of the pajama top experiment.  I assume the Government would need certainly perhaps similar or close to that time.  I would think that the Motion for Acquittal in this case certainly is in the range of twenty to thirty minutes or so -- maybe thirty at the maximum, including my rebuttal to the Government's position.
     I do not intend and do not want to go beyond that.  My intention is -- I think I can state my position, but there is evidence to be analyzed.  I see about forty-five minutes.  There are also a couple of other matters we have requested the Government to make available certain of what we consider Brady and/or Jencks material; that is, witnesses who were noticed to us as being Government witnesses in the case who were not called.
     We have asked the Government and we have filed a formal notice last week with them saying we would like their written statements of any people they did not call and the Grand Jury testimony of persons they did not call.  We have not received a formal response in that regard.

THE COURT:  I am just thinking about the jury back here.

MR. BLACKBURN:  I was getting ready to say, Your Honor, in view of the fact of the side bar conference -- I think we mentioned about the psychiatric question as well.  It is not unlikely that it is likely to take the balance of the morning.

THE COURT:  That is the way I read it.  I believe I will let this jury come back in here and instruct them and let them go until 2:15.  Let the jury come back.

(Jury enters at 10:48 a.m.)

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

THE COURT:  Members of the jury, I know you are enjoying the jurors' delicatessen that has been established back here.  But I have just interrupted some arguments to inquire of Counsel as to how long they estimate they will require to complete these arguments.  And I get an estimate of about 70 minutes.
     Now, applying the Dupree Rule and multiplying that by two -- you know, any lawyer's estimate of anything you have to do that; you have to double it -- we come up with a noon recess hour as the probable termination of the arguments in this case.
     I see no reason to keep you here during this time.  And you may have things that you would like to do.  Those of you from out of town might like to visit some of the stores.  And those of you who are in town might have some personal chores that you can take of or business at home or otherwise.  I am going to let you go until 2:15 today, and come back and then we will resume the trial.  I just hate to keep you cooped up back there all the morning while we lawyers who presumably know something about these things already, try to find out about and educate ourselves on the matters here at this late date.
     So, if you will, please retire quietly and come back today at 2:15.  Please remember you are not to discuss this case among yourselves or with others.  Don't let anybody talk about it anywhere around you.  And of course, don't read or look at or listen to anything.  And above all, keep open minds.
     You may be excused until 2:15 today.

(Jury exits at 10:52 a.m.)

(The following procedures were held in the absence of the jury and alternates.)


THE COURT:  Does the Government have any further written submissions on the evidentiary questions?

MR. BLACKBURN:  No, sir.


MR. BLACKBURN:  Your Honor, I might say one of the reasons for that is that this is the first time we, of course, have known such a motion was made.


THE COURT:  All right, Mr. Segal, I have read your brief submitted this morning, and I will hear you if you want to be heard further on this.

MR. SEGAL:  I am sorry, Your Honor?

THE COURT:  Do.  you want to be heard further on this?  I have read your brief.

MR. SEGAL:  May I be heard briefly?


MR. SEGAL:  May I ask Your Honor to indulge me?  May I use the lectern?  I promise not to speak longer because I have the lectern, but it would be more convenient to use my papers on it.

THE COURT:  All right, sir.

MR. SEGAL:  I think the principal law that we are talking about, Your Honor, is certainly one that is not novel, and that is that any time a party wishes to use a demonstration or experiment in Court in support of its position or theory, that the Courts, and the Federal Courts, certainly, have long recognized as well as State Courts, that the relevance, and therefore, the admissibility of such a matter really depends upon how accurately, how reliable this demonstration or experiment is in terms of the actual life events it purports to tell the jury about.
     Now, I think we have had in this case an interesting question raised earlier.  The Defendant, if you may recall, proposed, I think, a relatively simple demonstration.  We were trying to see how accurate was the process whereby CID Agent Ivory had outlined the body of Mrs. MacDonald on the floor because one of the questions in the case is precisely how many blue fibers were within that body outline as opposed to how many blue fibers were outside the body outline.  Certainly, the Government's theory places weight on that and one need not pass comment on the real meaning of that fact; but nevertheless, among the things we sought to do was to show -- I think the purpose of our demonstration was certainly not secret -- that the outlining of a body on a shag rug of the type that was found in the living room -- or the bedroom of the MacDonald house -- presented some problems that the outlining was probably not exactly the same thing as if you and I put our hand on a piece of paper on a hard surface and then drew right around it where we could probably get an almost identical configuration, and that the inference that we hoped to be able to draw from that demonstration eventually was that the body outline was certainly larger than the body for a number of reasons, and that there are probably fibers considered by the Government to have been under Mrs. MacDonald's body which really weren't -- which is simply because the drawing process precluded that.  That was the effort that we sought to make by the simple demonstration of having Mr. Ivory try to outline the body of the young man on the floor here and the Government OBJECTED to that and then later, as I recall the OBJECTION being stated at the side bar, it was not the same carpet albeit I pointed out that it was a shag carpet of similar cheap quality -- that is not a very dense shag carpet.  I think the piece that the Government produced in the Courtroom was similar.  That basic objection as articulated by Mr. Murtagh was that it wasn't the same; therefore, you should not be able to do that here in the Courtroom because it might mislead the jury about this process and the problem of outlining.  The Government's position was SUSTAINED in that regard.
     Now, we have to contrast the experiment of Mr. Stombaugh and Ms. Green.  Certainly, in terms of the magnitude --

THE COURT:  (Interposing) I thought the OBJECTION to that was OVERRULED.  I thought you conducted your experiment.  Is my recollection wrong in that?

MR. SEGAL:  The Government then brought in the piece of carpet that was cut from Mrs. MacDonald, but we were not permitted to mark it.  That is all that happened was Agent Ivory took a closed marking pen and ran it around the body.  Mind you, that was not the same thing as trying to make -- you know, where he had no obligation to make a line -- just the movement that he was recreating.
     I think, therefore, the demonstration that we had sought was stopped simply because we did not use the same carpet even though it seemed to us that it was an adequate replica being offered; however, for better or for worse, that was the ruling in the case.  That was certainly their OBJECTION.  They perceived, and the Court, I guess, in a sense of prudence, decided that it would not let the demonstration proceed as the Defendant wished to show it; therefore, what we had was a lesser exhibition -- one which never really tested the proposition -- could you do what Mr. Ivory said in marking the body the way he did -- could you get an accurate close-in marking or did you really have to move more loosely around it?

THE COURT:  My recollection is that that witness stated that he did have this trouble because of the texture and the kind of rug that they had -- it being a shag rug rather than a smooth surface rug.

MR. SEGAL:  Yes, sir.  The difficulty with simply the oral testimony was that the extent of the looseness of the body outline was not shown.  All I can say is my recollection of the OBJECTION by the Government was solely to the question that it wasn't the same carpet -- it wasn't fair to outline it on a replicate carpet that we offered, and we, therefore, had the lesser demonstration.  We are talking about something here of a different magnitude, Your Honor.  It is perfectly clear from the energy that the Government has put behind it that this is an important demonstration in the Government's theoretical arguments about this case and how it seeks to have the jury see this case.  I think the care and the scrutiny which the Court has to give the major demonstration that the Government puts forward, the one in which they place considerable weight upon because of the extent that the Government seeks to argue inferences from it, has to be viewed even more carefully and more scrupulous than our own much simpler demonstration of the shag carpet.  I think in this regard, we have the very clear statement of the Fourth Circuit as to what the obligations of the Court are, and not so much just the Court, but really the obligation of the offering party.  That is where the obligation belongs.  The burden is on them as the Fourth Circuit has said to satisfy the Court as to admissibility.  There is the Renfro case in 1977, by the Fourth Circuit, but the key words talking about -- in both North Carolina and the Federal Rules is that "The relevance of experimental evidence..." and the demonstration falls precisely in the same area -- "depend upon whether or not it was performed upon conditions that are substantially similar to those of the actual occurrence they are seeking to prove."
     Now, it seems to me that the most transparent failure of the Government's demonstration in this case is the fact that it does not bear any resemblance to the physical facts of this case.  We know that Mr. Stombaugh was asked to do this.  It was not an experiment designed by a scientist -- a forensic scientist -- to prove a point.  It was a lawyer's idea of how to prove an argument.  That is, "Can you make 48 holes in the blue pajama top fit into 21 hole's in Mrs. MacDonald's body?"
     The fundamental difficulty with that is that that is not the facts of the case.  The facts of the case do not show that there were 48 holes in a pajama top lying on a naked body, but what intervened there, among the many, many variables, was the fact that Mrs. MacDonald was at all times, as far as the evidence in this case shows, and I think as far as anybody believes, wearing the pink pajama top.  The real question is if you were purporting to show, and their theory is, that somehow for some reason that we have yet to hear, that Dr. MacDonald apparently, in their idea, put puncture holes through his blue pajama top into the body of his wife, and that is what accounted for those holes.  But there was no evidence that her body -- the upper part of her body -- was naked.
     They, if they had any demonstration to make of this theory that this is the way the crime could have happened, had to by every standard as far as a demonstration or experiment was concerned, as substantially as possible duplicate the facts that are established.  The fact that they did not do it, and I submit they could not do it -- could not make a demonstration work; they could not align the pink pajama top with the blue pajama top on the body -- is a fatal flaw.  There is simply no way in the world that the jury should be allowed to have as part of the evidence considered a demonstration of something which there is no facts to support it.  They can't show anywhere that that pajama top was on her body -- was not on her body at all times relevant to their theory.
     Now, we start with such a, I think, preeminently significant failure.  We talk about, for instance, some of the cases that we have cited, Your Honor, where the Courts have said keeping out a model because it has a pipe of an inaccurate dimension, is enough to keep out a demonstration.
     What are we talking about here?  We are talking about a demonstration where they don't bother to put the pipes in.  They don't bother to put the pink pajama top in.  There is no explanation by any scientist any forensic scientist -- as to why that could establish anything in this case.
     They had their witnesses here.  They certainly had Stombaugh.  They certainly had Ms. Green.  There is not a word to explain it.  When there were questions repeatedly on cross-examination by me on those scores, "Why was it done?"  "Because the lawyers asked for it."  That does not make it a valid demonstration because a lawyer seeks to show something which is not the facts that he has in his case.
     The trouble with it, it has enormous potential of misleading the jury into thinking, "Therefore, some weight should be given to this thing because they showed us that their arguments and their theories showed us something that might have happened."
     The failure to put that pink pajama top in place to account for the punctures, the thrusts, the cuts in it, or not account for it, places the demonstration outside of the allowable area.  I think we have to spend a moment only to remind ourselves, Your Honor, that the purpose of demonstrations or experiments is to facilitate the understanding of the jury.  It is to help them perceive those things: the physical facts that the parties rely upon.
     We know in fact that we could go on with this trial without any demonstration of that sort at all.  We could literally have had merely the words of the witnesses.  Mr. Stombaugh and Ms. Green could have said various things.  But we allowed them the demonstration because the rules say, "If it would facilitate the jurors' understanding."  But the rules also say that -- and I point out to the Court the often quoted language in the Barnes v.  General Motors case, "The problem presented by the use of experiment" -- the same applies to demonstrations -- " is the danger of misleading the members of the jury who may attach exaggerated significance to the test."
     In this case, for the jury I think to attach any significance to this test where it does not comport to reality, at least the reality that the evidence shows, is enormous.  The prejudice and danger is very substantial.
     That is not all, Your Honor.  I have never seen a demonstration where a party has attempted so blithefully to ignore the fact that they don't want to deal with the events that were shown in their own photographs, and they don't want to recreate what they say happened at the crime scene through their photographs.
     We have in this record the sworn testimony by way of the Grand Jury of Mr. Stombaugh.  But he said to the Grand Jury, Your Honor, that, "We took the photographs."  We had all three of the photographs, "and they laid it out exactly as it appeared in the photographs and they were able to make 48 folds fit into 21," ignoring the entire monstrous problem of the pink pajama top not in place.
     We have Mr. Stombaugh's report in which he says with all the care and caution that a bureaucrat musters when he finally puts himself down in writing that they arranged the blue pajama top "the same as" it appeared in the photographs.
     And when they came into the Courtroom, neither Mr. Stombaugh or Ms. Green were willing to stand by their own words as to how they conducted the experiment; that is, they have given lesser testimony in support of an experiment, which does not account for the pink pajama top also, than they gave the Grand Jury, and they put it right to the Government.
     They said, "Well, we know as a matter of fact that the way we have arranged it is not the way the photographs show.  Yes; we have turned the left sleeve inside out.  We have folded a panel here.  That much we took from the photographs."
     But our prior testimony, our prior reports, upon which the Defendant was given a copy in order to have discovery pretrial and prepare to answer, well, that is wrong."  "Wrong"?  "It is false.  We never meant that at all."
     Now, we will probably hear in response to this that that was some kind of Government gobbledygook as to how Government witnesses explain facts.  "When we say exact, I we mean only that the inside-out sleeve was exact or the panel was exact."'
     I commend Your Honor the page that we have in this case where we have in this case put forward and says there is no equivocation, "We folded the pajama top exactly as it was shown on the pictures."  The report says it was folded "the same as."
     You have a situation, therefore Your Honor, where the best the Government expert will now say in Court in support of his demonstration is that, "We took the pajama top.  We changed it.  We did not show it the way the crime scene photographer purportedly captured it then when he got to the crime scene.  We have done some other arrangement."
     What does it prove in this case?  If there are no facts that that garment was in that position, then the fact that you could make 48 holes go into 21 holes, ignoring, of course, the pink pajama top's absence, proves what?  I mean, it proves I can juggle two oranges.  What does that mean to this Court?  If two oranges being juggled by me have no relevance to this Court, the fact I can do it has also no place in the record of this case.
     It is the demonstration for the sake of demonstrating.  It is not a demonstration for the sake of illuminating the proof in this case.  The Government can't offer it, and they failed to.  It is not that I am arguing now.  I have heard the testimony.  Your Honor has.  The Government can't offer an explanation as to why it is relevant to show that.
     They can argue that it wasn't -- I suppose the argument was that it wasn't important to have the pink pajama top in place.  There is no evidence of that.
     Mr. Stombaugh doesn't say, "The experiment works just as well with or without the pink pajama top in place."  None of that comports to the standards of the law.
     There are other points I would make here, but let me close, Your Honor, at this first part of my argument by saying this: if we were dealing with a bookmaking case, somebody running an illegal interstate lottery, if we were dealing with a narcotics smuggling case -- we are talking about different magnitudes of crimes -- I think a fair reading of many appellate cases said, "The less serious the demonstration or the experiment to the ultimate issues of the case, the clearer the evidence is, the less we worry about it.  We will be a little perhaps, a little more generous in allowing somebody to demonstrate or show something in Court."
     But we have here a case, Your Honor, which I suppose other than treason in a time of wartime -- we have here a case of which there can be no greater serious case.  We talk about triple homicide.  We are now talking about the most serious type cases our Court can face -- the Federal District Court can.  It behooves us, I think, in that case to therefore exercise the greatest caution in such a matter of where all a demonstration is meant to do is not prove the case; it is to illustrate something.
     And where the demonstration is so fallacious in its concept, so false in its execution in the omission of the pink pajama top, and is so unrelated to the only realities that the witnesses have; that is, the photographs of where the pajama top was: that that does not under any reading that I am aware of comport with the requirements for a demonstration.
     I would say lastly, Your Honor, it is not even the Defendant's burden.  They have to persuade the Court and persuade it convincingly that this does, as the Fourth Circuit says, "show an experiment was performed under conditions substantially similar to the actual occurrence."
     I find that lacking.  And I wait for the Government's response in that regard.

THE COURT:  Before you sit down, Mr. Segal, you continually used the words "demonstrations" and "experiments," and I think the law is fairly well settled, as you have stated there, as to the prerequisite to the performance of an experiment in court.
     You've got to show identity of circumstances and so forth, but I have not seen this as an experiment, but rather, as an attempt by the Government to reproduce, using the same materials that were present at the crime scene, what happened and to show that they could have been in a particular relationship.
     Now, the week before we began the trial of this case, we tried in this courtroom a bank robbery case in which in the most fortuitous circumstance I probably ever saw in my life, the bank robber, wearing a particular kind of boot, mounted the counter before going over to help himself to the money, and left on the counter an absolutely perfect boot print.  Some alert detective who was there moments afterwards saw that, preserved it, and took innumerable photographs of it, and they showed up.
     The boot was found in the bank robber's home; it was part of his wardrobe -- one that absolutely fit perfectly that print on the counter, along with those little imperfections which boots acquire by reason of stepping on glass and objects and so forth over a period of time.
     The Government expert, probably next door to your man Stombaugh in Washington, came and was able to put the print, the boot, and everything back together.  He just reproduced here for the jury and Court -- and this evidence let in and I think properly so, and I am having some difficulty seeing a substantial difference in what they propose to do here with what was done there. 
     That was not an experiment.  He was using the boot.  He stood there and showed the jury the imperfections in the sole of that boot and the imperfections which showed up in the print made by the boot.  It was just clear as day that they had to be made by one and the same boot.

MR. SEGAL:  I have no difficulty at all with the basis of the admission of the boot print.  That if Your Honor pleases, strikes me as neither a demonstration or experiment.  That is a use of trace evidence.
     Trace evidence is the reference to the finding of fingerprints.  That boot was a fingerprint made by something other than a finger but, as Your Honor would say, it had -- because in this particular instance, it had characteristics -- cuts and marks in it.  When you thereafter found another boot that belongs to the Defendant, they could make it and you could hold it up -- you are able to drawn a conclusion from physical evidence.
     But the case here is that they conducted -- they tried to show -- demonstrate -- I suppose in the same way -- here's a fingerprint, you know, in one sense -- here's what happened at the crime -- Mrs. MacDonald's body with the pajama top on it and puncture holes in it.
     We will now show you how that could have happened.  The trouble is that Mrs. MacDonald's body at the crime scene had a pink pajama top on it which had varying holes, cuts, and marks in it as well as a blue pajama top.
     Therefore, if you intend to show that somehow she could have been killed or injured or these particular puncture marks inflicted through the blue pajama top into her body, it has to be done by showing it was done accommodating the placement of the holes on the pink pajama top.
     You cannot simply avoid it, ignore it, and pretend it wasn't there.  In this instance, it would be like saying, "Well, the man leaped over the table or the bank top.  He didn't leave any heel print.  But we found the heel and we showed him this heel, and the heel had this mark, and if we had found that heel on the top of the bank counter, we could convict him."
     The answer here is, Your Honor, there can be no demonstration or experiment which purports to show you that Mrs. MacDonald was stabbed through the blue pajama top unless it also explains how those holes arranged in their fashion can also pass through the holes in the pink top in the same fashion.
     It is simply a different experiment.  But, equally important, Your Honor, is the fact that they say that this duplicates exactly the photos shown.  They come into court and say, "Well, we didn't do that."  I want to leave Your Honor with the last thought.
     I would be interested in the Government's response.  The most that they can say is not what your expert said in the bank robbery case -- that those are identical imprints of heels -- that is, they are unique.  I suppose in all the world there might have been another heel just like it but the probabilities and the circumstantial evidence is good.  But in this particular case, the most the Government experts said is -- doing a demonstration of the blue pajama top onto the body and ignoring the pink pajama top -- "It could happen that way."
     They are not saying that there is a high probability that there is probably no other configuration like that -- no other way it could have happened.  This is the most speculative kind of conclusion.  They do not come in here and urge as I'm sure the heel imprint examiner saying, "The match is so strong and so perfect that the probability of another heel being just like that are beyond our reasonable arithmetic calculations."

THE COURT:  That was not his testimony as I recall.  I think his testimony was more in line with his colleague Stombaugh's.  He says, "I am saying that this print could have been made by this boot."

MR. SEGAL:  I appreciate that kind of restraint on the part of a laboratory official.  I wish, in fact, that we might have seen that in some other instances.  But I don't think that there is -- there is nothing different between that particular experiment and the actual event.
     It is precisely that they repeated the actual event -- in this instance, there are at least two major absences, and I think that the burden, because of the rule of law says the Government -- the proponent of the demonstration -- has to show that it is substantially similar.
     In the absence of that, they are not entitled to have introduced this to the jury.

THE COURT:  All right, let's hear from the Government then.  I have been interested during the two or three days that your witnesses Stombaugh and Green testified as to what it was you were trying to show other than that 48 could go into 21 and leave nothing left over.

MR. BLACKBURN:  That's it.  Your Honor, the evidence in this case shows these things.  It shows that the blue pajama top had three blood types on it: Type A, Type B, Type AB.  Most of it was Colette's type, Type A.
     Through the statements that were introduced we know that the Defendant himself had said he placed that pajama top on her body.  We have heard a number of doctors testify as to the absence of any ice pick hole puncture holes, on the Defendant's body.
     Indeed the Defendant himself in his own testimony before the Grand Jury, when he talks about his arms and his hands, talks about little cuts on his fingers, little scratch on his right arm, or over here -- nothing about ice pick holes on the hands or the wrist area.
     That blue pajama top has 48 puncture holes in it, according to the testimony so far in the case.  There is also testimony that Colette MacDonald --

THE COURT:  (Interposing) Well, it really has 49, but one of them got put on there accidentally, I believe.

MR. BLACKBURN:  Colette MacDonald has 21 puncture holes in her body that Dr. Gammel, I believe, testified came in a perpendicular manner while the body perhaps was stationary.
     Well, suffice it to say that the Government does not accept the Defendant's theory as to how those holes got in there, in that they around his wrists; because we believe that the evidence has shown thus far that the holes in that blue pajama were made while it was in a stationary position, because there was not great tearing of those holes.
     Now, if it didn't happen that way, and the Defendant himself didn't go to bed the night before with a pajama top with 48 or 49 holes in it, then how did those holes get in that pajama top?
     Well, we know this: we know he put it on himself, we know it had blood on it.  We know it had a little of his blood on it.  We know that the holes made by the knives do not particularly match the holes in his own body.
     All right, at that point, photographs were taken of Colette's body shortly after the agents arrived.  You have the testimony of Mica who saw the blue pajama top on her.  You have the testimony of Bill Ivory and Bob Shaw who said they saw it on her.
     You have the testimony of everybody who was in that house that night, and they said they didn't move it or touch it; and we know that the Defendant himself was lying on Colette's left side by his own story and the story of others.  We know that the left sleeve was on the floor.  We know that the left sleeve doesn't have any puncture holes in it.  We know that the right sleeve -- not the left sleeve, as Mr. Segal has stated this morning -- was turned inside out and draped back over the body.
     I will disagree with Mr. Segal when he says that Ms. Green and Mr. Stombaugh contradicted or sluffed off their prior testimony or written statements to the FBI.  They did not do that.  They went right down their testimony, and they said they did recreate it as the pajama top was folded.
     They never said in any of their statements or any of their Grand Jury testimony that they folded the pajama top over Colette's body as it was shown in this photograph.  They were simply saying that they had reconstructed the folds in the pajama top itself.
     Now, Mr. Segal in his memorandum talks about the elaborateness of the folding underneath the photograph.  Well, I suspect that if we went to great lengths to do that -- well, I'm sure that's true.
     But you also have to recognize that if the thing were folded over the body it would have a great elaboration of folds itself, under the holes themselves.
     Now, what were we trying to show; and why did we not use the pink pajama top?  The pink pajama top, Your Honor, in the Government's opinion, is not relevant to this question.  The question is not whether Colette MacDonald was stabbed with an ice pick through the pink pajama top.
     There are 30 puncture holes in it.  She was wearing it, I presume, when she was stabbed.  That was not what we were trying to do.  We were trying -- and I think we did it successfully -- to show that the pajama top that belonged to the Defendant got the holes that way; because if we can show that, we show that it is totally and utterly inconsistent with his own story of how those holes got there.
     Now, you notice in the 21 holes there were always groupings -- or, not always, but there was on one or two occasions a grouping of one, two, three or four, five, six, where those arose.
     I think if you will see the folding and re-creation of the pajama top, it duplicates those threes, so that 48 holes in that pajama top can in fact make a series of 16 on one side and five on the other.
     Mr. Segal has simply dealt, I think, in semantics this morning in the court, as to the testimony of Ms. Green and Mr. Stombaugh.
     We don't really disagree with any of the law that is in the Defendant's brief.  We simply say that the Government has complied with that law in the recreation or reconstruction of the pajama top.
     Is it prejudicial to the Defendant?  Yes, I would say it is.  I think that is precisely why we sought to introduce it.  I don't think it is erroneously prejudicial.  I think it shows, frankly, that his story is wrong, and it is inconsistent and at variance with the facts as we now know them today -- that that pajama top was on the body of Colette when the ice pick went through to make 21 holes in her body.
     I think that the Government is ruling -- the Court's ruling that that evidence was probing, is admissible; is completely right.  Whether or not the pink pajama top has any relevance and whether or not I'm proved wrong about it is up to the jury to decide and what weight they seek to give that.
     I am sure Mr. Segal, when the time comes, if that time comes, will argue, as he has this morning, that it is a sham demonstration because it didn't include that.  We, on the other hand, will argue the reverse of that -- that it was not necessary -- and I don't think it is.

THE COURT:  Your witness, if I understood him correctly, did not discount the possibility that these 48 holes could be arranged or arranged differently from what he or she did arrange them, and still fit into the 21 holes.  Was that his testimony?

MR. BLACKBURN:  I think what this witness was saying, if you recall, as Mr. Stombaugh said it a number of times -- "I am not saying it did happen that way.  I am saying only it could have happened that way."
     I think that Mr. Stombaugh was simply seeking to say that it is conceivable -- because we cannot eliminate every mathematical probability -- that 48 could have made 21.
     I will submit to the Court that 48 could make 21 in the particular grouping that these holes were in -- the 16 over here and five over here -- and none in the left shoulder, which incidentally happened to not be on her body, and when you fold it back this way is extremely probative and is simply a matter of argument to the jury as to the weight to be given it.

THE COURT:  Well, I had the impression -- of course, it's not up to me to cast any weight to it one way or the other.  But I had the impression that if one took a piece of one-fold cloth and pierced it 21 times, and then pierced another body 21 times, just at random, that they would never match up after they were done at separate times; that at the same time, if you put one over the other and did it 21 times, just at random, there's not but one way on earth that they will ever match up.

MR. BLACKBURN:  Well, I would say this to Your Honor, I think that's correct --

THE COURT:  (Interposing) Now, I also had this impression: that if you then took certain folds -- you only had 21 to account for -- certain folds in it, and so that you came up not with just 21 but with 25, that that would increase the improbability -- if you got those to match up -- that would increase the improbability that they were not against one another at the time that the holes were made.
     This is just the way it stacked up to me, but I don't know what you're trying to prove really.

MR. BLACKBURN:  I think that's correct, and I think that certainly we will argue to the jury that the testimony --

THE COURT:  (Interposing) So I did not follow your witness' testimony when he said, "Oh, yeah, you could probably do it some other way."
     I believe after every time you add one you increase the unlikelihood that it could ever have been on there but one way.

MR. BLACKBURN:  I just think he was trying to be in an abundance of caution, not to say that it couldn't be done some other way.  I would say this, that the Government was never able to fold it and get it any other way, other than the way we got it -- than the 48 making 21.

THE COURT:  Did the witness testify that?

MR. BLACKBURN:  No.  I am stating that to the Court.  I would say one thing finally: I noticed in the Defendant's memorandum, he talks about we didn't account for the knife wounds and the knife holes -- stabs being holes which were in the pajama top.
     We are not necessarily contending that the pajama top was on there when all of the wounds to Colette were sustained.
     We are simply saying that we believe that the pajama top was on there when the ice pick wounds were in fact were sustained.

THE COURT:  All right, Mr. Segal, do you want to respond to that?

MR. SEGAL:  Yes, Your Honor, let me address the question about if Your Honor knew about whether or not there was more than one way that the holes could match up?

THE COURT:  I was just intrigued by that, but I don't think that's really relevant, because it's not for me to decide one way or the other.

MR. SEGAL:  Let me say this, Your Honor: first of all, the witness has clearly said that there is more than one way.  They never tried --

THE COURT:  (Interposing) I thought I understood him to say that.

MR. SEGAL:  There isn't any doubt about that or any need to berate it because I knew that also.  All that you need is the key to understanding how that's possible, and then you understand why the Government chose to do the demonstration the way they did it.
     The key to it was the fact that as long as you have an adequate amount of maneuvering room -- that is, you can't do on a little piece of square fabric 6" by 6" -- but with a pajama top; and where you have circular holes as Ms. Green conceded when I showed her my little demonstration on paper, you can rotate fabric around circular holes any way you want to.
     If I might, Your Honor, just show this point.  What Ms. Green agreed to is that when you are trying to put in one probe and the hole is circular, as long as you have a circular hole you may move or adjust or rotate the fabric until you get the second juxtaposition in.
     And you could not do that if you were trying to accommodate thrust holes, because the thrust holes -- being more like a line-type hole -- you can't maneuver the fabric around because you have the potential for tearing.
     But it becomes very apparent that the reason that the Government's theory has to exclude the knife wounds as well as the thrust wounds is that they can't make the demonstration work that way.
     Ms. Green said if you can't rotate the fabric around, if you had to do it, you are going to tear the fabric.  Since there were no tears in it when they examined it, they just simply arbitrarily say, "We will announce that the experiment that the jury should consider doesn't accommodate those."
     There has been no evidence in this case that the knife wounds were done afterwards, before, or simultaneously.  That's the danger of it.  What the Government has been allowed to do under the guise of demonstration is again -- I think they have done on a number of other occasions in this case -- is to argue the inferences from evidence.
     Well, it's one thing for lawyers arguing, you know, that they may say, "Well, we see these holes and we think you ought to view it this way."  But it is another thing to concoct a demonstration which ignores the fact that you can't tell us whether or not you really could fit 48 into 21.
     You also have to match up somehow to the pink pajama top and make sure that your probes are vertical, and that is what you are trying.  You can't do that; you can't show that to the jury as if it is a possibility in this case because there is no evidence in this case that anyone ever did that.
     Simply the failure to do that alone is significant.  I listened carefully to the other point that Mr. Blackburn argued about what are we to say about the sworn testimony of Mr. Stombaugh, the person who was responsible for this evidence -- the sworn testimony.
     If I may, I would like to recover it if I can from our little exhibition of charts, because I think his words are worth going back to.  They are not what Mr. Blackburn says they are.
     I would suggest to Your Honor --

THE COURT:  (Interposing) I think I have your position on this matter, Mr. Segal.  I don't want to hurry you, but we do have some other things to do.  Wrap it up for me if you can.

MR. SEGAL:  No one said the Government had to do it exact.  The Fourth Circuit says, Your Honor "It's got to be similar to the way the actual events took place."  The Government can say nothing better than, "We did this without recreating either the position of the blue pajama top; we did it without putting the pink pajama top and aligning those holes."
     Those things -- there are no cases that I know -- I must say, Your Honor, that I think that I have read to the point of bleary eyeness all the cases of demonstration.  I have never, ever seen a case in which the demonstration that was offered omitted in so many critical ways replicating the realities.

THE COURT:  Well, I think the Defendant has done some very -- characteristically, a very searching cross-examination on these two witnesses.  I feel, however, the arguments which he made are addressed more to the probative force of the testimony than they are to its admissibility or competency as evidence.
     I have difficulty seeing any relevance to the presence or absence of the pink pajama top you were talking about.  The linking up of the holes in the blue pajama top with the holes in the body -- that's what he sought to do.
     The fact that there may have been some other material, whatever it was, between the two -- if it penetrated both of them, I fail to see the relevance of that.
     I also do not feel that the law relating to experiments is exactly acquisite here because I think this was more of a question of reproducing -- or an attempt to reproduce -- what actually happened using the same -- or as nearly as possible since the body wasn't here -- a photograph of the body and the pajama too.
     I also know that in rebuttal argument, counsel will not allude to the features of the Government's argument in which they address the different kinds of blood that were found on the pajama top and whether or not it penetrated certain portions of it and so forth.
     I will overrule the motion and let the jury decide what weight if any that they will give to this testimony.
     Now, you have your Motion for Judgment of Acquittal?

MR. SEGAL:  Yes, Your Honor.

THE COURT:  I will hear you on that.  Well, wait a minute.  I lose sight of the fact that every once in a while there is at least one of us here present who is working, and he may want to come up for air.  Let's take a recess until 12:00 o'clock.  We will come back at 12:00 noon and continue with that argument.

(The proceeding was recessed at 11:48 a.m., to resume at 12:00 noon, this same day.)

F U R T H E R  P R O C E E D I N G S  12:00

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

THE COURT:  Gentlemen, we are going to recess today at 12:45, so, while I don't like to limit anyone, I hope you can make your remaining arguments in that length of time.  Let me inquire about the Sadoff matter.  Is that something that is apt to come up today?

MR. MURTAGH:  Yes, Your Honor.  I don't know that the Defense would plan to offer that today, but in terms of other arrangements that have been made, yes, Your Honor.  It most certainly would come up today.

THE COURT:  Let me see you at the bench then, right quickly.

B E N C H  C O N F E R E N C E

THE COURT:  I think that this thing is certainly close enough so that you should go ahead and have your examination made, but I am not going to rule on that just from the hilt.  This thing is a very, very close question.  There is -- the commentators have talked about it at some length, and there is some good argument, I think, to be made on both sides.  But I think, out of an abundance of caution, that you better go ahead and arrange to have your examination made.  Another thing -- let me tell you -- is that Thursday afternoon of this week I want to make that trip down to Fort Bragg and see this thing myself so that I hope I can come back the next morning and rule on the thing that is outstanding in the jury view question.
     So, you go ahead and get that done.

MR. SEGAL:  Your Honor, I need to ask Your Honor for some clarification.  As I heard what Mr. Murtagh said last week, there was something about a Rorschach test having not worked out.  I have never heard of that before, but that is what he said here at the side bar.

THE COURT:  He used a term I had never heard of before so it went completely over my head.

MR. SEGAL:  The ink blot business where you look at the ink blots and we say things they don't like and we find ourselves on the way to the state hospital.  I am not clear in my mind, based upon those representations last week, what the Government is asking for.
     Secondly, if Your Honor pleases, I do not want to see Dr. MacDonald submitted to probing by Government psychiatrists and psychologists if it is not going to be of any evidential value in this case.  I don't think that just because the Government has precipitously sent for somebody today, that I ought to permit it.  You know, it is a painful process --

THE COURT:  (Interposing) Well, then, what you are telling me is that you want this ruled on before he is examined.

MR. SEGAL:  I think that would be best, Your Honor.  I mean --

THE COURT:  (Interposing) Of course, that would be the preferred way of doing it, but I thought that it was close enough.  I would -- let me just say -- in my own reading of it, you are ahead on points at this stage, and I thought that we would just go ahead and get that over with.
     But I don't see any way that I can get this ruled on before we can do this.  Now, we can come tomorrow morning at 9:00 o'clock and I will give you an hour on it then.

MR. MURTAGH:  I have problems in that regard.  All of the psychiatrists and psychologists have patients, and we have to drag them away from their patients.  The problem is that I was hoping that perhaps if this afternoon if we are still arguing on various matters, we can even get it done later today.

THE COURT:  If his Motion to Acquit is not allowed, I want to start the evidence in this case at 2:30 this afternoon.

MR. SEGAL:  We are ready.

MR. MURTAGH:  In other words, if a date certain were set for it, I would be in a better position I mean --

THE COURT:  (Interposing) Are your people from out of town?

MR. MURTAGH:  Yes, sir.

THE COURT:  And you've got them here today?

MR. MURTAGH:  Yes, sir.

THE COURT:  Well, I think this is close enough so that the chances are you will have need of it, so let's go on with the thing.

MR. MURTAGH:  Do I understand that the Court has ruled that Dr. MacDonald will submit to psychiatric and psychological testing?

THE COURT:  Yes, I would require that if I let the evidence in.  I will give you a chance to get that done.  I would have done it heretofore, but you know I have a few other things to think about and I did not know there was really any question about it.  When I read your brief which I had three weeks ago, I said, "Well, this evidence cannot come in."  But now, Sunday night -- this is Monday morning -- I get the first chance to read the brief filed late Friday afternoon by the Defendant and I say, "Hey, it looks like maybe the Defendant has got something here."

MR. MURTAGH:  Your Honor, in effect, Dr. Sadoff is going to set up a model which is in itself artificial.  He is going to say 'the crime" -- and by the way, at the time this man is saying "the crime," he knows from nothing about this crime.  He hasn't seen any pictures.  He hasn't --

THE COURT:  (Interposing) Well, you are talking about the objections to questioning him.

MR. MURTAGH:  Yes, sir.

THE COURT:  I'm just concerned at this point with the broad question of whether or not it is open to the Defendant to bring in an expert opinion that his character is such that he probably would not have committed a crime such as this; isn't that your point?

MR. SEGAL:  Yes, Your Honor.

MR. MURTAGH:  Your Honor, we don't think that evidence is competent, and it will only confuse the jury.

THE COURT:  I am going to hear you on that.

MR. MURTAGH:  Okay, in other words, we can get it set up.

THE COURT:  Yes, see if you can't get the thing for --

MR. MURTAGH:  (Interposing) Tonight?

THE COURT:  Yeah, tonight -- after 5:00 o'clock.

MR. MURTAGH:  Yes, sir.

THE COURT:  Now, I'm leaving today at 5:00 o'clock because of another appointment that I have, and so -- but we can come to argue that motion tomorrow morning at 9:00 o'clock.  Let the jury come back at 10:00 -- if you want to do that.

MR. BLACKBURN:  We could go ahead and have him examined this afternoon.

MR. MURTAGH:  Let's do it this afternoon and we could argue that the motion --

THE COURT:  (Interposing) I said I would let you do that.

MR. MURTAGH:  Your Honor, we would propose to do it in the library of the U.  S.  Attorney's office.

MR. SEGAL:  No, a neutral place.  Come on, now, let the lawyers work something out.  Let's have it in a clinical atmosphere.

THE COURT:  If you can agree on some place to have the thing -- why don't we do this: in the chambers of the other courtroom -- totally vacant -- it is comfortable down there.  It is just like this place -- just like mine.

MR. MURTAGH:  That would be fine.

THE COURT:  That is the place to do that.

MR. MURTAGH:  If we could set it up for 5:30, we could do that.  That would be great.

MR. SEGAL:  In view of the fact that you want to adjourn at a quarter of one -- in view of
     Parkinson's Law -- given all that time, we could fill it all up -- may I ask to reverse our procedure?  Let me hold off the argument on the Motion for Acquittal for a few minutes.
     There is one -- there are two side matters that need to be dealt with, one of which is our demand for Brady materials from the Government which apparently the Government is not going to at least agree with what we say are Brady materials.
     That, of course, is quite important as we are on the verge of putting on our evidence.  That is at least as important as the Defendant's Motion to Acquit.  Secondly, we have here, under subpoena, the parents of Helena Stoeckley.  We have been trying to locate her.  In our effort to locate her, which has been futile up until now, we have subpoenaed them as to their knowledge of her whereabouts.
     I am not particularly anxious to make them do necessarily all that explanation about what they don't know about their daughter necessarily in front of the crowd.  I just have a feeling, having talked to them -- on the other hand, I do need to put their testimony of record either before or after the luncheon break as to their knowledge or lack of knowledge of her whereabouts because, if we cannot find her, after such a diligent search, we will seek to have her deemed unavailable for the purpose of various 800 rules.
     I only want some guidance, Your Honor, as to how you would think best we should proceed to take their testimony -- certainly not done in the presence of the jury, I would think.  That is a preliminary foundational matter Your Honor has to rule on.

THE COURT:  You say you don't want the press to hear it either?

MR. SEGAL:  I don't care.  It is their feelings.  I don't care, Your Honor.  Probably it would be better if the world heard about it.  Maybe somebody would go out and find her.

MR. BLACKBURN:  Your Honor, may I respond to that?  I gave Wade this morning at 8:30 the newest address which we had.  It may be that all of this is rendered academic if they do find her.

MR. SEGAL:  We have someone working on that.  I would say there is some difficulty with the address that was given.  There is some problem with whether that number exists.  We are working on it.  All I want to say is that we have an obligation to make a record as to our efforts.
     One of them is, of course, we have made repeated efforts at her home, and we need to preserve that, and I am only asking some guidance.  As a matter of fact, Your Honor, I don't care whether we do it in open court.  I don't care if we do it in an informal session where we show up a few minutes early or later.
     I am just asking for the Court to give me some direction, but I must do it.  I want to release these people when we are through with them so that they can go back to their home.

THE COURT:  How long will it take you to produce that evidence?

MR. SEGAL:  I think five or six minutes questioning.  They say they have not seen her but once in months and where they thought she was or give us the address -- and a couple of questions of whether they have sent her mail or money some places.

MR. MURTAGH:  Your Honor, it would seem that whether the parents know where she is or not is irrelevant as to whether the Defense has been able to locate her and serve her with a subpoena.

MR. SEGAL:  That is not our whole problem.

THE COURT:  Well, now what he wants me to do -- he wants me to do for him what I have just done for you.  You want to accommodate your psychiatrists; he wants to accommodate two witnesses.

MR. MURTAGH:  We have no problem with the accommodation of the witnesses, Judge.

MR. SEGAL:  I might say, by the way, the only reason they are here is because that is the address that the Government gave us with their list three days before trial which is her parents' address.  That is why they are being brought here.

MR. MURTAGH:  That is the last place I saw her, Judge -- was her parents' address.

THE COURT:  Well, is this woman under subpoena?

MR. MURTAGH:  Not by us.

THE COURT:  Why not?

MR. MURTAGH:  Judge, she can't testify to anything.  She thinks she was involved and that's it.

THE COURT:  But you have been aware for five years that the Defendant was going to try to get her testimony in if she was not available.

MR. BLACKBURN:  We have been trying to locate her.  Because of that very reason, we are not going to stand up and argue we cannot locate her and not have her in the trial.  We know that two weeks ago -- because Wade himself remarked to me a couple of days ago that she was in Dorothea Dix Hospital at some time.
     She simply moves around.  We had the FBI looking most of last week trying to locate her solely for this reason.  In other words, a subpoena issued maybe three months ago might not have helped because God knows where she is recently.

MR. SEGAL:  I don't think anybody is hiding her out.  I think she is a difficult witness to find.  There is no question about it.  I think the address we had been given in '75 and '79 was her parents' address; that is the best anybody has.
     We have her brother's address now.  We have been up to his home.  She's been in and out of there.  All I want to do is simply -- I think we have to make some other proofs about her unavailability.  I don't consider this to be total and complete.  I intend to make some other proofs.  I just want to put it on the record so that everybody knows that there has been an effort made to do it right.
     I just wanted to find out how to deal with these witnesses.  They are not truly my witnesses.  I don't care if they sit all day, but they are human beings in a painful situation.  Just whatever Your Honor says I will abide by it in that regard.

THE COURT:  Well, if their testimony has to be taken, we will take it at 4:30 this afternoon.
     We will just recess the court at 4:30.

MR. SEGAL:  I will tell them they are excused until then, Your Honor.

(Bench conference terminated.)

THE COURT:  All right, I will hear the Defendant.

MR. SEGAL:  Your Honor, just indulge me for one minute.  I want to give some instruction in regard to that matter that we were just talking about at the Bench.

THE COURT:  All right.


MR. SEGAL:  Your Honor, counsel for the Government and I, taking cognizance of the time available to us, have agreed that we will divide the remaining half hour 15 minutes to each side maximum.  I would like to reserve about, I would say, three or four minutes of my time for a rebuttal statement in regard to the Motions to Acquit and Motion to Dismiss.

THE COURT:  All right.

MR. SEGAL:  If Your Honor pleases, at this time, the Defendant moves to dismiss the indictment against him and Motion of Acquittal for lack of the proof of the Government in this case.  I open this argument on behalf of the Defendant by saying to the Court that I make such a motion fully aware that there are certain assumptions that work in favor of the Government at a motion at this level.
     We are in Federal practice.  In essence, the Motion to Dismiss now is in essence a demurrer -- in the nature of a demurrer.  That is, we will assume the evidence for the purpose of argument in the light most favorable to the Government's case in terms of measuring it.  I think when the Government's evidence is, in fact, put to the test, it does not meet the test even in its most favorable light.
     The Government has called 28 witnesses to date in this trial.  I think it would be helpful to briefly review the nature of their testimony.  I don't intend to go over each witness in detail, but to project what I think is the sense, the essence of what they have to offer and then to perhaps stand back and see whether the whole is either equal to, less to, or greater than the sum of the parts of the Government's case.
     The Government's case opens with the two military policemen who were first and second upon the scene -- Mr. Tevere and Officer Mica.  Their testimony does essentially establish the finding of Dr. MacDonald's body lying next to that of his wife and the finding of the dead children in the house.
     They also describe in considerable detail what happened in the crime scene.  I think that is critical because the Government's case here is built in part upon assumptions and inferences and conjecture from that crime scene.  It is clear, for instance, that Officer Mica moved the body of Dr. MacDonald.  As a matter of fact, the body of Dr. MacDonald, as we understand his testimony, was moved three times.  He first saw Dr. MacDonald lying in a semi-face down position on part of the body of his wife.  The body of Dr. MacDonald, later on, is on his side.  He hears the moaning and groaning.  That is the first time they are aware that there is life there.  Thirdly, Officer Mica turns the body of Dr. MacDonald flat on his back for the purpose of giving life saving procedures to him.
     There is no precise discussion of what movement or what changes had to take place in regard to the body of Mrs. MacDonald, but it is clear beyond any semblance of a doubt that all kinds of movements took place vis--vis her body.
     If we look at the photographs in this case, we know, for instance, that either the blue pajama top and the white bath mat were moved significantly by various MPs, or else this is the first case ever where the evidence can be found of its moving about on its own power.  There are photographs which show the right breast of Mrs. MacDonald uncovered.  That is all.  The other breast is shielded by the pajama top.  It is uncovered -- it is not blocked by the blue pajama top.  There are other photographs showing bare portions of the abdomen and later photos showing the abdomen covered by the bath mat.  All of this indicates from the testimony of these two witnesses that there was movement in and about her body and its position; and understandably, none of them is precise or able to detail the extent to it because they were doing what I think is agreed was the first responsibility for investigators and that is to take care of the living person at the crime scene.
     We also hear that the words from Dr. MacDonald that are spoken that these two first witnesses hear are words of concern for the life and the welfare and the health of his wife, Colette; of Kristen and Kimberly MacDonald.  We also learn from these two witnesses of the number of other military policemen coming in the house and going down the central hallway,from the back room to the front room.  We learn of the movement of the body, of how medics came in the front door of the house bringing in a wheeled gurney or stretcher and passing through -- passing the end of this sofa, one of the critical scenes in this case, where Dr. MacDonald described beings attacked and where his pajama top was first grabbed and pulled on his body.
     We described the movement of various MPs and medics coming through that area.  We saw the demonstration of the trundle, the gurney, being carried down the hallway and rolled into the master bedroom, the persons stepping over the body areas and moving Dr. MacDonald's body onto the gurney and removing it.  We saw also again the path out of the MacDonald house.  There is to this day a very clear tread mark on the model showing the gurney passing right through the critical area at the end of the sofa, on the carpet, near the coffee table, and near the other pieces of furniture.
     We know also from these witnesses that the other MPs who were never fully inventoried -- the names of them, what precisely they did.  But we also are cleared from all these persons that there were numbers of military policemen in this house without specific function.  We also know that everybody left and right told everybody else, "Don't touch the crime scene," because they fully recognized the critical nature of protecting the crime scene.
     And, finally, and perhaps most tellingly, we know from these witnesses that the crime scene was, in fact, disturbed.  Officer Mica describes a man walking over -- apparently a medic -- walking from the table or the desk near the front entrance to the MacDonald house, picking up the white flower pot lying on its side and standing it upright and walking over and sitting down on the sofa -- the very sofa -- where Dr. MacDonald had described being engaged in a struggle; and the very sofa on which Dr. MacDonald described how his pajama top was pulled on and that man being ordered to get off and get out of the area, and, of course, walking right back out into these various areas.
     We also know that other disturbance of this critical part of the crime scene took place.  There is evidence -- there is a photograph -- there is actually the evidence from officer Mica of a wallet along the floor at the end of the coffee table, and that that wallet disappeared from that crime scene.
     There is also later evidence, from other Government witnesses, about another wallet.  The Government says that they can prove that Dr. MacDonald's wallet was stolen from the desk near the door of the MacDonald house.  That, of course, is not the same thing, the same item that officer Mica describes.
     We then have the testimony of Mr. Shaw, the lead investigator in this case, describing essentially the collection of evidence.  Among the most critical things he describes is the method of collection of the top bed clothing in the master bedroom.
     He describes the CID pick up -- the use of first of all, picking up the sheets and discovering in the bedclothes, discovering a piece of rubber latex falling from it.  Then taking a pair of forceps devices and picking up the sheet while Mr. Shaw, and I demonstrated that role, held a plastic evidence bag.
     He put that wet bloodstained garment or material into the bag, closing it up and putting it aside.  All of which, with no awareness at the time of the importance of the blood, of the moist blood that was on those particular items -- moving those things in that fashion.
     Mr. Ivory also tells us of a total failure of anyone to pursue the lead that Officer Mica announced to Lieutenant Paulk when he said that having talked to Dr. MacDonald on the floor, said, "Lieutenant Paulk, this man says he was attacked by a woman and three men -- a woman in a hat.  On my way here, five or six country blocks from here I saw such a woman"; and we learned there was a total failure to follow up on that piece of information.
     We also learned that the back door to the house, the apparent form of ingress and egress to that house, is never secured from being touched or handled because we see other MPs that have come through the house or gone out of the house in that fashion.
     What we learned from these witnesses is a failure to understand the necessity of looking for rninute trace evidence, that they later placed so much faith upon.  There was a total failure by these witnesses to protect this crime scene from persons that they know themselves.
     We learned that Mr. Ivory, when finding the rubber glove, began to think in deductive fashion that perhaps the finding of the rest of the glove is a piece of evidence that could be of significance.  We learned further that there was so little effort made in protecting the crime scene, that the trash cans, a likely source of these items, were allowed to be emptied and removed from the scene by garbage men.
     The garbage men walked past the perimeter defenses of whatever MP, or whatever other barricade was set up there.  Mr. Shaw also tells us largely about evidence collection of finding weapons outside the back door of the MacDonald household.
     You have then doctors -- a series of doctors who testified -- Gammel, Hancock, Jacobson, Bronstein, and Gemma -- testifying to the fact that the defendant had a puncture in his lung -- a collapsed lung -- a partial pneumothorax.
     You heard varying testimony about varying degrees of injury, but what is clear in the Government's case is that Dr. MacDonald suffered injuries which required -- I think Dr. Gemma's description graphically using the tubes -- required serious procedures to be used.
     We were also learning at the same time that the destruction of evidence, which was relied upon by the Government for certain essential evidence in this case goes on.  The bottoms of Dr. MacDonald's pajamas, which may or may not be the source of fibers and threads, are destroyed and discarded in the hospital.
     As a matter of fact, it is interesting that the testimony reveals that there is not even a serious effort to go after them.  As Specialist Newman says, "They were taken off and thrown away.  There is no evidence that anybody had even made an attempt to get that."
     But the medical testimony in this case shows injury.  It also shows that Dr. MacDonald did not die from the injury.  The question of whether or not, it is an injury he almost died from, may have died from -- all of those things are not of significance.
     What is of significance in the Government's case is they have established that he, in fact, had injuries that are consistent with puncture wounds that he claims to have received -- described receiving -- from the assailants.
     The doctors were also very interesting because they discussed the extent of the injuries of his family.  I think that no one who was in the courtroom can ever forget the terrible injuries that were inflicted upon the small children and upon the wife.
     Looking over the full panoply of every piece of Government evidence, there is not the slightest support with conclusions that Dr. MacDonald ever harbored such an attitude toward his family, that he ever harbored such an attitude toward his children.
     There is not the slightest report that he ever did an act of physical violence against any one of those persons or against any child or any female person.
     The Government is totally unable to show acts that were consistent with this.
     What they show is the enormous brutality and an absence of conduct consistent with that on the part of the Government.  You go on and see the Government in one of those bizarre kinds of pieces of testimony which is offered for reasons that are hard to fathom -- the testimony of Agent Murray.
     Pictures taken four and a half years after the incidents are paraded in front of us to say, "Look, here is where Dr. MacDonald points to injuries."  Beyond the limit of photography, all I know is that Agent Murray pointed to pictures that were voluntarily given to him, and the fact that we don't see bleeding wounds four a half years later, I suppose, is to be deemed as supportive evidence on the Government's part.

THE COURT:  Mr. Segal, if you are going to reserve any time for rebuttal, your time is up now.

MR. SEGAL:  Let me just have a minute.  I will go through it quite quickly, Your Honor.  I want to point out that the evidence -- the blood evidence in this case, of which we have seen myriad charts, shows a number of things.
     There are blood types of various members of the family in various parts of the house.  Not a single Government witness has testified that that could not have happened, or did not happen, as the result of contamination by Dr. MacDonald either coming in contact with the members of his family as he attempted two circuits through the house to give mouth-to-mouth resuscitation, to find life, to give aid.  There is not one word of evidence by the Government to explain whether or not the weapons used could have provided contamination.  There is no evidence provided by the Government as to whether or not the intruders that Dr. MacDonald described could be the source of the contamination -- that is, the blood being around in the various places.
     It is simply a fact that they have not explained.  The fact that they can't explain it -- that is, perhaps, in the minds of the Government, a mystery to this day -- does not seem to me to amount to evidence against the Defendant.
     The strongest evidence -- the only evidence that any of these weapons are related to the Defendant's house comes in the following fashion.  By the way, there are no witnesses in this case that I can recall that at all indicate that the Old Hickory knife or the Geneva Forge knife ever came from the MacDonald house.  There is the testimony of two persons who talk about an ice pick.  One of those persons, Pamela Kalin Cochran -- the babysitter from upstairs -- who, in 1970, admitted on the stand when she was questioned about these matters, said that she never remembered seeing an ice pick in the MacDonald house; and who then testified that when she was called in front of the grand jury and shown photographs during the morning session did not remember seeing any ice pick in the MacDonald house.  But in the afternoon, she had an an active revelation when she said sitting outside the grand jury room looking at apparently a picture of the puncture holes in -- I believe she said Dr. MacDonald's body -- the revelation occurred to her.
     I submit, Your Honor, that that evidence is the kind of evidence that the Court cannot say has weight and credibility and could allow a jury to make a finding of fact.  It is evidence, but it is of such dubious circumstances and origin.
     The other testimony is of Mrs. Alfred Kassab.  I will only say of Mrs. Kassab that she is a witness whose motivation -- whose malice toward the Defendant is clear from a number of things that she said and did in the Court.  She hardly represents the kind of evidence, even looking at the Government's case in the most favorable light, that makes it much of an argument.  But even so, the Government may have established, if you look at the evidence in the most favorable light, that there was an ice pick in the MacDonald house.  No one says that the ice pick that was used here was the weapon that killed the family.  No one.  As a matter of fact, Mrs. Kassab's testimony is to the contrary.  She doesn't think it is the same type ice pick.
     The remaining pieces of evidence -- there are many.  There is the infamous demonstration by Mr. Stombaugh.  I say "infamous" because it says, "This is a possibility.  Let's assume that the jury ought to consider it."  He says, "It could have happened this way."  It is not evidence, but if a jury were to return a verdict of guilty in this case and the Court was to look back upon it and say, "What did the jury base its verdict upon," the speculation that it could have happened this way without explanation about why and the fact that there is no evidence here of the kind of willfulness, deliberateness, premeditation, malice, and evil heart that was required , Your Honor, for first degree murder -- when there is an absence of any meaningful motivation other than the Government's suggestion, and in the final moments of the trial, there is not a suggestion of the motivation of why the Defendant would not only destroy his wife but slaughter his little children.
     While I recognize motive is not a necessary element of the case, in a circumstantial evidence case it seems to be quite imperative to understand the evidence, that motive should be shown, and should be explained.  The Government has attempted to gloss by that, I think, in its view suggesting simply the base reason of a contact with another woman at another time, and therefore, this Defendant would destroy his family.
     I think the last point that I want to point out to you is that the Government introduced for reasons -- I don't understand tactically why they would because they certainly can't take credit for having been generous in bringing in all of the witnesses who know the facts -- there are so many that they have left out.  The Government produced Ms. Elizabeth Krystia Ramage.  Ms. Ramage was the last human being other than Dr. MacDonald and the intruders to ever see Mrs. MacDonald.  Ms. Ramage testified as to the final conversations -- one that indicated a state of good feeling, of love between husband and wife; and a state of respect and mutual respect for each other and not the slightest indication of fear and intimidation either about where she was living, about her home, about her husband and her family.
     Her testimony speaks loudest against the support that there is evidence of willfulness, deliberateness, premeditation or malice in this case.

THE COURT:  All right, what says the Government?

MR. BLACKBURN:  Your Honor, first of all, with respect to the crime scene which the Defendant through extensive cross-examination sought to destroy, I would suggest that we showed these things.  We showed that somebody picked up a flower pot.  We showed that somebody picked up a telephone on which prints were later not found.  We showed, I believe, that the body of Kristen MacDonald was moved by Dr. Neal.  A photograph was taken both before and after that occurred.
     No one has shown -- no one -- that the body of Colette MacDonald was moved.  The body of Jeffrey MacDonald certainly was moved.  It was a medical emergency.  I would say with respect to the crime scene, that the crime scene, contrary to the best efforts of the Defendant, remains intact in this trial today.
     It showed that military police and agents of the Criminal Investigative Division worked very diligently to respond to a medical emergency and protected that crime scene.  The fact that some clothes were picked up out of the hallway and put on a sofa, the fact that some glasses of Dr. MacDonald were picked up and then later put down, the lens going a different way, when, in fact, it was being checked for blood, and the fact that a feather falls off of a table onto the floor: if that is destruction of a crime scene, then I think these people did a very good job.
     I would say that with respect to the bodies themselves, we have heard statements read that Dr. MacDonald gave his children mouth-to-mouth resuscitation --

THE COURT:  (Interposing) Let me interrupt to say this.  I think if the Defendant has succeeded in anything in this world in this case in showing, he has succeeded in proving beyond any doubt that had defense counsel been in charge of this investigation, that numerous things would have been done in a different manner from what they were done, but I am not concerned with that now.  I am concerned with whether or not you have produced sufficient evidence to allow this jury to say from that evidence beyond a reasonable doubt that this man is guilty of these murders.  Now, what is that evidence?

MR. BLACKBURN:  Let me go directly to that.  First of all, the victims -- they were simply over killed.  The Defendant by being here today simple was not over killed.  His injuries, I will contend -- whether he inflicted them or Colette MacDonald inflicted them -- were not of the same nature as those of his children and his wife.
     With respect to the blood, there are massive amounts of Type A blood found in the master bedroom, in Kristen's bedroom on the top sheet and on the wall.  There is blood found -- left on the wall in Kimberly's room.
     What we submit, Your Honor, is that the evidence in this case shows that the club certainly came from that house.  That club was outside.  MacDonald himself with his testimony never went outside, yet two fibers which microscopically match his pajama top were found on that club.
     A series of threads and fibers or yarns were found under the body of Colette MacDonald, which I suggest is that she came to rest on the floor in the master bedroom after -- not before, but after -- that pajama top was torn.
     You recall the testimony of Paul Stombaugh, how it was torn in the V-neck.  I would suggest that the profusion of threads and yarns found in the master bedroom demonstrates conclusively that it was torn in that room, not in the living room as the Defendant has indicated in his statements.
     I would suggest that the fact that a number of threads and fibers are found under the bed covers -- under the bed covers in Kimberly's room -- when at the time he was checking them, he didn't have his pajama top on by his own testimony, is very revealing as to whether or not that statement is accurate.
     His own statement that he checked his children for artificial resuscitation -- and yet we have photographs of how the children were found -- Kristen on the side, Kimberly on the side.
     We know that Kimberly had to have been placed on the bed.  The covers were tucked in.  She has an injury on the left side of her face, yet she's lying left side down -- face down -- in that bedroom, or in that bed.
     I would suggest that the footprint -- the footprint: so very important -- made by Dr. MacDonald in Type A blood -- there is no other Type A blood on the floor in Kristen's room.
     The puddle of blood by that bed was Type 0 blood.  How then did Dr. MacDonald get his foot on some Type A blood in Kristen's room, exiting -- not going in but exiting -- that room?
     I suggest there is no innocent explanation for that.
     We know that the bedspread and the bed sheet in the master bedroom, which he says he did not touch, has a blood stained hair of Colette MacDonald intertwined around a pajama thread matching the pajama top.
     We know that that bedspread had massive amounts of Type A blood, and we know that the sheet itself had Type A and Type AB blood.  We have heard Paul Stombaugh testify as to fabric impressions -- that the left sleeve or the right sleeve of Colette MacDonald were there.
     And someone -- someone wearing the pajama top -- touched that sheet, because of the right cuff, a bare outline of a shoulder with a torn pajama top.  I suggest there is no innocent explanation for all those fabric impressions on that sheet.
     I would suggest that the fact that he has stated that he received all these puncture holes -- the explanation we have already gone into this morning -- I won't do that now -- on the blue pajama top.  I would just adopt that by reference and put it into this particular argument.
     I would say, frankly, that the things that point most directly at the Defendant are the total inconsistencies with his statement as to the facts in this case.
     He says he entered a struggle in the living room.  There are no threads there where he said the pajama top was torn.  He says he was stabbed there.  There is no blood of his type found there.  Where is his blood found: in the kitchen sink -- I mean, excuse me, in the bathroom sink; on the outside and inside of that sink; on the floor -- on the floor -- four or five drops of blood very next to a kitchen cabinet, which incidentally housed Perry Latex-Brand surgical gloves -- which, testimony came into this case, were consistent in trace elements with pieces of rubber glove found in the master bedroom, which purportedly wrote the word "pig" in Type A, Colette's blood, on that headboard.
     We know that not only the injuries but the totality of the physical evidence is simply not consistent with the Defendant's story.
     If that be true, then what do we make of it?  We make of it that the Defendant's story is not true.  It it is not true, then why?  And I suggest it is because -- it is to cover up the fact that the Defendant has killed his family.

THE COURT:  All right, sir.  He has saved two minutes for you, Mr. Segal.

MR. SEGAL:  One cannot help but take note that we now hear that among the theories that the Government thinks it is entitled to have the jury consider on this evidence is that Mrs. Colette MacDonald injured her husband with these injuries.
     The Government's version of this case is an interesting argument.  Besides being erroneous in many regards, ignoring the number of circuits that Dr. MacDonald made through the house, insisting that he must have stepped in some blood at some certain point, it ignores the fact that they are asking the jury to -- and they are asking the Court to go forward in a case where it is -- we have asked a man who was never interviewed about the details of the crime by any other investigator in a serious matter until six weeks after the crime.
     The interviews with Mr. Caverly were fairly brief and really dealt with general matters.  Six weeks after the crime they are asking a man who by all the medical testimony suffered injuries that required hospitalization.
     There wasn't a doctor here who, suggested that this man was malingering, this man was feigning greater injuries.  As a matter of fact, if there is one thing that rings clear, it is the fact that Dr. MacDonald never overstated his injuries, never thought -- never stated anyone claimed greater injuries than in fact were there.
     Concern about the treatment, about the degree: the statement and the position of the doctors themselves said that this was the right treatment and he was in that hospital for eight days.
     Now, the Government chooses to ignore that.  They have come together with a theory either, I suppose, of self-inflicted injuries, or that Mrs. MacDonald had inflicted the injuries.
     Well, what is the point here?  The point is that those speculations are perhaps interesting in a lawyer's office, but they cannot be the kind of speculation that a jury is permitted to engage in, in a jury room.
     There is no evidence that other than the fact that the Government does not think there is an explanation for these events -- I would just say to Your Honor that if every witness that the Government could call was held to the same standards that Dr. MacDonald is allegedly held to by the Government in its argument now, there isn't one of them whose testimony would remain standing.
     I just pick an example: how could we allow the testimony of former CID agent Paul Connolly to be given a moment's consideration by the jury when he stated in his report and his additional testimony that he is the one who found the knife that was taken from the chest of Mrs. MacDonald.
     We knew -- although he hadn't heard it -- that Agent Shaw had recovered that knife -- found that knife under the bureau or near the bureau near Mrs. MacDonald's body.
     Connolly comes in here and says, "Well, what I meant when I said that I had found the knife in Mrs. MacDonald, was I handed the marking pen to Mr. Shaw to put around it."  Now, that's patently absurd.
     What I am saying to you is a witness who is not suffering injury, a witness who is not under any stress, whose family has not been destroyed, who is not the subject of gruesome injury and gruesome concerns himself -- he is being held and the jury is going to be told in this case, "Convict him because he can't explain every single thing about where a fiber was or what he did precisely."
     But at the same time the Government says, "Believe our investigators because they know what they are talking about," when Connolly says, "What I mean when I say I found a knife is I handed a marking pen to Mr. Shaw."
     The standard is two-faced.  The Government is not entitled to the benefit, and the Government is not entitled to have this case go forward.

THE COURT:  The rule in this Circuit, as I understand it, is that circumstantial evidence does not have to be such as to exclude every hypothesis consistent with innocence.
     I have noted just over the weekend that that particular principle of law is sought to be the subject of attack in the Supreme Court by a writ, which has been applied or there in a case, I think, from this Circuit.
     So it may be that we will get some, ruling on that one of these days.  At this moment, however, that rule is binding on this court, and I follow it.
     I am reminded that the frequently expressed rule that a defendant is not entitled to a perfect trial.  I am rather glad that that is so, because otherwise this court wouldn't have any business -- wouldn't be able to conduct any business, certainly of a case of this kind.
     I suppose it is equally true that a Defendant is not entitled to a perfect investigation, which obviously, he didn't get in this particular case here.
     Gentlemen, I think the Government has made out a case under these rules which are binding on a case, which is on the Court which I feel is sufficient to have the jury determine this Defendant's guilt or innocence and I am going to let the jury decide the case.
     The motion is overruled.  We will take a recess until 2:15; and we will take a recess.  Make that until 2:20; and when the jury comes back, ask them to defer coming in for five more minutes.
     They are supposed to come back at 2:15; but come back at 2:20 today.
     For those of you to whom it will have any significance, expect to be in recess after 4:30 today.  Take a recess until 2:20.

(The proceeding was recessed at 12:50 p.m., to reconvene at 2:20 p.m., this same day.)
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