Trial Transcripts

August 23, 1979

Discussion in the absence of the jury

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F U R T H E R  P R O C E E D I N G S  9:15 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 Wednesday, August 23, 1979, at Raleigh, North Carolina.

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

THE COURT:  All right, we will be seated and come to order.  We have some motions to hear this morning.  Mr. Marshal, take a peep out.  If there is anybody out there now that wants to come in, all right.
     Otherwise, no one else can come in until we got these motions served; and no one go out.  Anybody in who wants to go out in the next five or ten or 15 or 45 minutes, please leave now, will you?
     All right, we will hear your motions now.  The first one is the motion of the -- I take these in the order that you listed them -- the Motion of the Defendant to Dismiss for failure to disclose Brady materials.  You want to be heard on that?

MR. SEGAL:  The Motion to Dismiss and which in the alternative prays the court for such other relief as it deems appropriate under the circumstances --

THE COURT:  (Interposing) Yes, sir.  Let me interrupt to say that I have read all of the motions and, as much as I could, all of the authorities cited in support of your respective positions.

MR. SEGAL:  I am only going to point out to the court that we are not asking the court to route through the Government's file.  We are not asking Your Honor to make any search.
     We are saying we have enumerated here quite specifically the things that we have reason to believe exist and which we have reason to believe, for the facts set forth in our motion, that they are potentially exculpatory.
     The government, as provided yesterday, has given us Mr. Hodges' statement as to February 17, 18, and 19.  The Government has also given us as of yesterday the statement of Dr. Sadoff that was taken.
     However, I think what remains and which is perhaps most clearly and strongly Brady material are Defendant's own letters written to either his wife, which were taken -- I am not saying improperly, Your Honor, which were taken or in the possession of the Kassabs, and which we have reason to believe either the letters in the original form were given to the Government, or the copies thereof were given to the Government.
     We have also asked for the letters between the Defendant and his wife, which again not in any improper fashion were acquired by the Kassabs in 1970 and 1971, at their own instance.  Again, I think they were made available to the Government.
     I think the Government has no vested interest -- if they have them -- in keeping them from the Defendant.  I think on their face they would reveal matters of family relationships, the attitude toward the pregnancy by Mrs. MacDonald, the attitude toward family and children.
     Those things clearly ought to be seen as potentially exculpatory, and we should be able to have those.
     Lastly, I press upon the court the fact that there is no vested interest in the Government any longer to hold back the non-grand jury statements which will be asked for as Brady material here, of all the witnesses that they listed on the pre-trial notice of the witnesses that they have given.
     Some of them we have received from the Government on earlier occasions, but we say of the 88 there are a substantial number of people there from whom we have no statements and we have never received them.
     And I think that there is always the inference that the Government chooses not to call a witness, while on one hand it may be nearly cumulative, and that's why the choice is made; and on the other hand it may be that the witness' testimony isn't helpful to the Government and could be or has a tendency to be helpful to the Defendant.
     Again, I close by saying, we have been specific in what we are asking for.  We are not making any shotgun demands.  We have said these are the things that exist, that we know about, and I think the reasons why we should have them are set forth fairly clearly in the request to either dismiss or for alternative relief.

THE COURT:  Thank you, sir.  Mr. Blackburn, do you want to respond to that?

MR. BLACKBURN:  Yes, sir.  With respect to the list of witnesses, I would point out to the court that at least 30 or 35 of those witnesses were evidence custodians in the chain of custody.  And the chain of custody not presenting itself as a problem afterwards is the reason a number of those witnesses were not called.
     The other reason that a number of witnesses were not called was simply that the evidence would have been cumulative, and we were able to, in our opinion, prove something through another witness, making that unnecessary.
     With respect to non-grand jury statements, we do have this morning about 20 -- I guess about 20 folders -- statements, some containing grand jury material, some containing non-grand jury interviews with potential witnesses that were on the list, that we are prepared to turn over as soon as we can work out getting a receipt, you know, from the Defendant this morning.
     I would make reference to some of those.  They include the remaining psychiatrists -- their testimony -- Dr. Mack and Dr. Bailey, and I believe Dr. Courtland.
     Also, they include the military policemen -- a number of military policemen who testified -- as well as some who did not testify.
     I would also point out to the court that all of the Article 32 testimony, of course, has already been given to the Defendant.
     With respect to the letters between Dr. MacDonald and his wife, the Government simply does not have those and has never had those, and I have never seen them.
     The only letters that we have, which I think we did make available to the Defendant during the course of this trial, were letters from the Defendant to the Kassabs, which I know one was introduced in the trial by the Defendant and one by the Government.

THE COURT:  All right, sir.  Well, gentlemen, the discovery available to a Defendant and to the Government, too, for that matter, in a criminal proceeding, is outlined in Rule 16.
     And it has been held that that does not authorize the discovery of statements made by the Government witnesses or prospective witnesses, except as provided by the Jencks Act.
     Now, it is my invariable practice to implore the Government to display everything in their power that could in any way be helpful to a Defendant.  If you don't do it you run afoul of the Brady Rule, and you will be back.
     And of course one of these days it could all be -- in connection with a post-trial proceeding -- be compelled to be disclosed, and then we could see whether or not it does.
     The Government takes that chance.  You say that you have nothing that is exculpatory.  That's your position at this time.  With respect to the grand jury testimony, that is covered in Rule 6.  And you, I assume, are standing on your right with that law, but you are going to let him have some?

MR. BLACKBURN:  Your Honor, we are going to give it -- what we are giving to the Defendant is basically Jencks material of witnesses that we did not use, which would include grand jury material; it would include statements.

THE COURT:  Now, at this late date, of course, another thing that concerns me is that they would give rise to further investigation, subpoenaing other witnesses from all over the country, and that kind of thing, and delaying this trial.
     And I don't want that to happen.  I am going to leave the Brady material motion exactly where it is, reminding the Government again that it is their responsibility.
     If you've got anything that is helpful to this Defendant, let him have as quickly as you can.
     Let's get on to the Rock Report.

MR. SEGAL:  If Your Honor pleases, I think the report of Colonel Rock, which is the Article 32 investigation, fits precisely within the rule for official reports, set out under 803(8)(c).
     I mean, I think we have spelled it out in our memoranda --

THE COURT:  (Interposing) Yes, let me interrupt to say that you started off and threw me completely off base by pitching your motion under 803(24) and 804(b)(5); so I thought that those were completely without any merit at all, and not until you came with some later submission and re-filed your motion under 803(8)(c) did the thing evoke any particular interest on my part.
     And unfortunately, that was at about 11:00 o'clock last night; but I have worked -- let me ask you to begin with -- let me ask the Government.
     In the latest submission on yesterday by the Defendant, he says that you have finally conceded that it came directly under 803(8)(c).
     Are you making any such concession?

MR. BLACKBURN:  No, sir.

THE COURT:  I did not see it explicitly in your submission.

MR. BLACKBURN:  We didn't mean to imply it either.  We did not mean to imply any concession.

THE COURT:  Now, let me ask both of you this question, preliminarily: is the evidence before this court identical with that before the military investigating body?
     Is this a different case in any respect?

MR. SEGAL:  I think Your Honor has asked, as I understand it, two different questions.  First of all, the evidence is not identical.  There are findings of fact that were made by Colonel Rock in terms of the things that he actually did, observations that he made that no witness has testified to, as to physical circumstances, physical events in this house, about what could or could not be seen.
     He conducted experiments about visibility.

THE COURT:  You mean he did this himself?

MR. SEGAL:  Yes, sir; he did himself.  It is in the 25 findings of fact.  This was done very much, as Your Honor is familiar with, in a complex civil case where the court will make a series of findings of fact on the matters heard.
     And in his report, as we pointed out in our memorandum, he has made approximately 25 findings of fact.  A number of them are based upon his totally own independent investigations; that is, experiments he conducted in terms of what could or could not be seen by a person lying on the sofa in the position that Dr. MacDonald has testified to, and which has been described by the Government in the reading of the various statements on direct examination and which will be described again by the Defondant, when he testifies in this case.

MR. SEGAL:  (Continuing) He talks about what could be seen when certain lights are on, with the light on in the kitchen or not -- what could be seen.  What is the situation with the coffee table in the living room?  Does it always turn over on the side.or turn upside down?  He makes it an experiment.  He makes a finding of fact.
     He also notes damage to furniture and explains the context of how he perceived that to relate to the position of the coffee table.  He also makes certain findings of fact as an officer over lesser ranked officers and enlisted men, an to whether they, in fact, did their jobs satisfactorily based upon their sworn statements.

THE COURT:  I found -- or seem to recall -- that Rock was a resident of Raleigh.  Where is he?

MR. SEGAL:  I do not know, sir.  I believe the Government in its last --

THE COURT:  (Interposing) Did you issue a subpoena for him?

MR. SEGAL:  Sir, we attempted to interview Colonel Rock on several occasions, both in 1975 and again the past year, I believe.  He said most respectfully -- not in any offensive manner -- that he deemed it better not to speak to us.  I will say that we did learn, however, that Government Counsel has spoken with Colonel Rock considerably at some point in the course of either the grand jury investigation or since then.

THE COURT:  You may have misunderstood my question.  I asked if you had issued a subpoena for him.

MR. SEGAL:  No, sir; we did not subpoena him.

THE COURT:  Very well; does anybody know where he is?

MR. ANDERSON:  I understand he is available In Raleigh, Your Honor.  I talked to a friend of his a day or two ago, and I think he still lives in Raleigh.

THE COURT:  Did the Government issue a subpoena for him?

MR. ANDERSON:  Not that I know of.

MR. SEGAL:  I think the issue here, Your Honor, is that 803, of course, are rules that have nothing to do with availability.  They say, "whether or not available," this testimony is to be offered as admissible if it meets the test here.
     The is one of the very, very extraordinary situations, again, where this is the only type of case -- the one we are in now -- where the report of an investigation -- the official investigation -- is introducable, because it is by the Defendant against the Government.
     The rules are quite explicit.  Of course, because of the Sixth Amendment confrontation right, the Government cannot do this.  This was their investigation, Your Honor.  It is not something the Defendant foisted on them.  It is nothing the Defendant caused.  It is the very same government.  It is not a different sovereign.
     I mean, the United States may proceed in this case either through its military agencies, or could have come here in 1970 to the same court.  But it is one government.  It is in virtue in this case of an admission of a party opponent, to be treated this way.
     But I think the way it fits most clearly into the rules of evidence is as an investigation.  The Government has insisted from day one, contrary to my own technical interpretation of the law, that this was an investigation.  They have to live with it.  It says so here.
     Now, the only question, I think -- not that whether 803 makes it admissible -- I think it makes it admissible beyond peradventure without any question -- it is relevance.  It may be, you know, stating the obvious, but the definition of "relevance" as set forth here is anything which bears on the ultimate issues of the case would be relevant in this case.
     Is this Colonel Rock's report about some other matter which tangentially deals with the MacDonald case?  Not at all.  It has the sole purpose of being an official investigation under authority of law to make some findings, to make some recomendations, to make some conclusions.
     It did it in a fashion which has really, you know, a substantial basis for recognition as being thorough and complete.  The fact the Government didn't like the results and that after nine years of hindsight has guzzied up the Article 32 and presented it again -- with the only, I would say, the only difference between these proceedings and 1970 are the following: people who were wet behind their ears, fresh out of college -- you know -- who had a B.S. in Chemistry and a couple of semesters in graduate school when the draft grabbed them, were put into the CID laboratory and given basic minimal training.
     Today, they are Ph.D.'s in chemistry, but it doesn't change what they did then.  It is the same old folks that came here.  The case has the same witnesses.  But one thing has happened, of course, and if Your Honor would like, I would submit the report itself to the Court for examination.
     The Government has done something -- and I wish I could point out the name of the Fourth Circuit case.  There is a Fourth Circuit case that talked about double jeopardy, that it won't allow the prosecutor to try a case once -- then see what they have done wrong, what they would like tactically to do otherwise -- and then re-try it.  My memory fails me.  I could find the case for you.  It was talking about double jeopardy and one of the reasons for it.
     No dress rehearsals allowed.  That is what the Government wants.  They want to treat 1970 as their dress rehearsal, in which they fall on their face.  At least, Colonel Rock thought so.  And now, we are going to clean that case up.
     The only difference is, Your Honor -- besides the fact that we have all aged and gotten a little grayer and some have gotten a few more degrees -- is the fact that they have taken out certain witnesses, all the M.P.'s and other people -- you know, Dr. Neal, whom they should have called in this case.
     And they fight us tooth and nail about reading his sworn testimony -- you know -- everything in that case which was theirs and they were required to put on, but which embarrassed and hurt the Government's case -- they are taking that out.  They want to slide by with it.  All right; that is one difference.
     The second difference is, on top of all of Dr. MacDonald's prior voluntary statements in the April 6th interview, Caverly's interview and his voluntary testimony on behalf of the Defendant, his examination by the investigating officer, they have now additional testimony from the grand jury -- again, voluntarily given.  That is new in this case.
     Finally, Your Honor, what they have are the famous -- or perhaps, some people might refer to them as infamous -- Stombaugh experiments, you know, as to how many fibers fall from a torn garment provided you never do any experiments and find out how they work -- the experiments which were designed not by scientists, but by lawyers.
     Your Honor has heard that.  The jury has heard that.  But this is otherwise the same physical evidence, the same case, in all significant ways.
     One other thing; I have been negligent in not pointing this out.  One of the strictures about the speedy trial rule, Your Honor, has been the terrible fear of manipulation of witness memory.  It is one of the things mentioned in the majority opinion of the Court of Appeals in this case, when the Court ordered this case dismissed for denial of speedy trial.
     Pamela Kalin Cochran is exactly the kind of nightmare that the Court was talking about, and the Supreme Court in earlier cases.  Five years after the fact -- four and a half years after the fact -- having been interviewed, having been interviewed about certain things, and which she had seen these things and knew them, she denied any identification of the knives and all the rest of it -- denied any knowledge of the ice pick being in the MacDonald house.
     And then she sits here on the stand, having been -- you know -- processed through the grand jury -- no one else was there -- sits there and says, "Yes; I had this vision four and a half years later, staring at a picture outside of the grand jury room of Dr. MacDonald."
     Your Honor, if there is ever an area of testimony which ought to be viewed with the gravest of doubt and suspicion, it is that kind of testimony.  That is what they have added.  That is the new part of the case.
     Now, aside from that, the case is similar, but the evidence has been changed in terms of what witnesses are called.  Neal hasn't been called in here, sir.  Other witnesses -- you know -- M.P.'s who have facts.  There, personnel have not been called.  They are all covered there.
     But, most importantly, you have the findings and evaluation from a military standpoint.  We, as lay people and non-military people, don't have to pass judgment on whether the CID did a good job or not.  That was an official finding of the effectiveness and control of the crime scene; of the effectiveness of the investigation of the case; of the failure to protect the evidence in this case; of the process they went by to get evidence -- whether it was lawful, proper; whether this is a case where one could make deductions and inferences from the evidence.
     Now, all those reasons say that was clearly relevant.  The last issue -- is it unduly prejudicial?  Anything that hurts the other side is prejudicial, Your Honor.  The test is, is it unfairly prejudicial?  I do not understand how, in this case, the Government is allowed to invoke the cry of unfair prejudice to their own investigation.
     It is part of the record of this case.  At the outset of the Article 32, Colonel Rock said, "I have several ways of going."  He could have simply read the reading file of the CID and heard a minimal number of witnesses, and what he said instead was, "I want you to put on all of the evidence, to review this properly."  The prosecutors did.  They went all out -- five months -- longer than this proceeding, Your Honor.
     I think the amount of time and the amount of thoroughness in that case are beyond dispute.  Why, because the Government doesn't like the result, are they allowed to say it is confusing and prejudicial?  It may be seen this way.
     I want to offer one final example, and then I will sit down.

MR. SEGAL:  (Continuing) Let us assume the situation, Your Honor, of an employee of the Federal government.  He flies a government airplane on a business trip for the government and he crashes and dies --

THE COURT:  (Interposing) He what?

MR. SEGAL:  He crashes.  The plane crashes and he gets killed.  And like in all such matters of aviation fatalities and certain major other accidents, the National Transportation Safety Board investigates the cause of the accident.  They write a report that says and they hear all the witnesses who say, "The Government was negligent as to the way they maintained this plane.  They were careless.  They were indifferent, and this person died because of the careless maintenance of this aircraft which should never have been able to fly."
     Then the survivors sue the same United States Government.  In that case they introduce the government's report.  Now, the same witnesses are being called.  The witnesses will be there as to how they maintained the aircraft.  The experts who gave opinions will be there.
     In fact, there is even less independent investigation probably than we have here where there are findings here that Rock made from experiments he conducted that no one else has done, and the Government is not going to be allowed to scream, Your Honor, "Unfair, unfair."  These rules were not written by Defense lawyers, Your Honor.  Your Honor, if you will look at the roster of the membership of this committee, you will know who wrote the rules.
     They weren't designed by Defendants to defeat the Government.  The other way around is the structure of these rules.  But the Government should be hoisted on its own petard here.  What is sauce for them is sauce for us here, and the sauce we wish to serve the Government is their report -- their finding.
     In that crash case, Your Honor, there can't be any doubt that the Government, although it is trying to defend that it was not negligent maintenance of the aircraft, is going to see marching in against it the findings of the National Transportation Safety Board.
     It will say what?  It will say, "The Government was negligent."  The Government says, "Oh, unfair.  We are trying to try the same issue in front of the jury."  The answer is the Court will instruct the jurors: "This is an official investigation.  You have also heard witnesses.  You make your decision, but it is part of the facts of this case."  We are in no significant way different.  In our last submission, we point out a number of other cases that are similar situations.
     The trouble is that the Government doesn't like the taste of the rules when it doesn't work its way.  I think simply in fairness to the Defendant that he ought to be entitled to offer a report which the rule makes so clearly his right to offer.

THE COURT:  Have you found a case in any jurisdiction in which the findings of the officer conducting an Article 32 proceeding, or any other inquiry the object of which is to determine probable cause for the institution of a criminal action, in which such findings have been admitted in evidence under 803(8)(c) or any other rule of evidence?

MR. SEGAL:  803(8)(c) is too new to have produced much appellate review.

THE COURT:  Like we say to the witnesses, you just answer my question yes or no.  I'll let you explain.

MR. SEGAL:  Certainly, Your Honor.  We have set forth the cases that we --

THE COURT:  (Interposing) There are several cases.  There are several cases.  I said in a criminal prosecution.

MR. SEGAL:  These are the only cases that we are aware of.

THE COURT:  You have never found one; have you?

MR. SEGAL:  We have no other cases to offer, but I must say that because the context is novel, the rule isn't.  I mean the rule could not be more plain.  It says you can introduce an official investigation and finding against the Government in a criminal case.  I mean I hope we are not reduced to another situation now where we decide that both Congress and the drafters and the Supreme Court had their backs turned on the possibility that MacDonald might make use of the rules.
     They weren't making it for him.  They didn't know that he might wake up and see the rules laying there.  I think we are in a situation here because there will be few criminal cases ever where this will come up, Your Honor.
     There is no doubt that the nature of the Article 32 -- you don't have to take our word for it.  It is not just a preliminary hearing.  It is a different beast.  And the Government's briefs galore castigating the heck out of us about it explains it is an investigation.
     This statute which creates it -- in those terms, Your Honor -- Your Honor has used that term in referring to prior memoranda in this case that it is an investigation -- Supreme Court in its argument.  We set that all out.
     That is what it is.  It is not the same thing as a hearing before the U.S. Magistrate on a matter.  It is a different kind of matter because the U.S. Magistrate has no power to go out and conduct his own inquiry, to make findings of fact, to make physical observations and come in.
     As a matter of fact, the hearing would be set aside if he did it.  He would become a witness.  This is very much akin, Your Honor, if there is any parallel at all, it is to the inquiring magistrate in the Continental system of justice.  The inquiring magistrate in the Continental system may do the things the Article 32 officer did here.
     What happens is most Article 32's are so perfunctory they are rare that they are anywhere done on the scale and the care and with the extent that was done here.  There is no doubt that this was by any measure as good an Article 32 ever held in the history of that statute and probably the model against which in serious criminal proceedings in the military they ought to consider it, but it is not a preliminary hearing.
     I mean no magistrate could ever conduct these findings.  No magistrate could ever say to Dr. MacDonald, "I will only consider or permit you to have evidence of Dr. Sadoff in these hearings, provided that you will submit to Army psychiatrists."  He has no power to do that.  He can either say "Yea" or "Nay," "admissible" or "not admissible."
     He ordered his own investigation and called his own witnesses.  I mean those things do not, taken in their totality, make or reduce this to a preliminary hearing.  In fact, there has not been a reported appellate case that does not, I think, change the clear meaning of the words in the statute.

THE COURT:  Let me hear from the Government.

MR. MURTAGH:  Your Honor, Mr. Segal is attempting to re-litigate a matter originally brought up in pretrial motions that were dismissed on double jeopardy grounds.  Your Honor denied them at that time and the case went up on appeals.  The argument was heard again before the Fourth Circuit.
     They did not decide it in view of their Speedy Trial decision --

THE COURT:  (Interposing) Let me interrupt.  Wasn't some kind of motion filed in the Fourth Circuit after this trial was already underway to -- what was the purpose of that motion?

MR. MURTAGH:  What happened, Judge, was after the Supreme Court reversed the Court of Appeals -- the (unreadable) decision based on Speedy Trial grounds -- based on their lack of jurisdiction, because of the intervening decision in the United States v.  Abney that double jeopardy claims are appealable, Your Honor, on an interlocutory basis, the Defendant reraised his double jeopardy claim which was predicated entirely upon the military proceedings.
     Basically, the Article 32 report, Rock's report, the whole nine yards, as you will, was offered as a adjudication of his innocence and --

THE COURT:  (Interposing) Is this the reason -- I suppose it was a motion for Mandamus or something from this Court.  I remember something was filed in the Fourth Circuit.  I got a little short order, I think, saying it was denied.  What was that?  Just refresh my recollection.

MR. MURTAGH:  I think that was based on a number of grounds, one of which was the Court's again denying the opportunity to re-litigate the Article 32 report so it was incorporated within it.  What I am getting at, Judge, there is a reported case and that is the second Fourth Circuit case, United States v.  MacDonald, in which they directly addressed the issue of whether the Article 32 is anything more than what the statute says.

THE COURT:  What did they say?

MR. MURTAGH:  They said it is not an adjudication.  It is not a proceeding in which the investigating officer is empowered to determine guilt or innocence and that is exactly what this thing is being offered for here.  It is being offered, in effect, as a prior adjudication.
     The matter was again raised in the mandamus petition which, as Your Honor pointed out, was subsequently denied.  But what I am getting at, Judge, is that it does not really matter whether this was the biggest and grandest and most wonderful Article 32 investigation in the history of the UCMJ or whether Colonel Rock sat there in judicial robes with a wig.
     He was not empowered to do anything other than recommend.  The statute and the uniform code -- I'm sorry.  The Manual for Courts Martial which interprets the Article 32 specifically provides that the recommendations of the investigating officer are advisory only, and I think Mr. Segal misstates when he says Colonel Rock made a number of findings of fact.
     In the first instance, he was not empowered to find any facts.  I doubt whether he could have found them in the first place.  But be that as it may --

THE COURT:  (Interposing) Well, he's telling me this morning and it struck me as a little bit odd as he says that maybe they do this on the Continent, but I never heard of the judge going out and making his own observations and experiments and coming up with factual findings.
     The question raised immediately in my mind was, was the Government permitted to cross-examine the judge?

MR. MURTAGH:  No, sir.  The Government was not permitted to cross-examine the judge nor at the time that this so-called coffee table experinent was made, Colonel Rock's investigating -- I'm sorry -- legal adviser chose to move the table in front of the coffee table so that it doesn't tip over --

THE COURT:  (Interposing) Well, let's don't get into details like that.

MR. MURTAGH:  -- but that's what I'm saying.  This was not a trial.  It was not an adjudication.  It was an investigation.  It is not relevant to the evidence.  It is not entirely before this jury.  It is not the same case.  Why we are getting into the Stombaugh testimony, as it relates to the Article 32 investigation, completely baffles me because Stombaugh at that time had yet to hear of the MacDonald case.  So, what we are talking about is an attempt really to make a silk purse out of a sow's ear, put it in front of this jury to further confuse the issue.  Witnesses were called before the Article 32 investigation.  They are available to be called now.
     The names have been provided, and the addresses, and their prior testimony to the Defense and, by Colonel Rock to the extent that he could testify an a witness then is available.  I doubt that he is competent to testify as to what he thought.  And for this reason, Your Honor, we think it does not fit within Rule 803.  It is not relevant to this matter.  It would simply confuse the issue.  It would be a waste of time.  For that reason, Your Honor, we would pray that the Court deny the Defendant's notion.

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

MR. SEGAL:  I have a prayer that we never from the Government in this case about time wasted.  That is an absurd statement for the Government to make.  Talk about time-wasting, we match the Government three to one for any time that they think they have wasted here in terms of the Defendant's offer of this report.
     Let me just point out to Your Honor a couple of things: the statute empowered Colonel Rock to investigate.  The Government say it's an investigation.  It fits the definition of investigation.
     Now, this matter that Your Honor raised some questions -- that is about whether you have ever heard of a judge, other than in, I point out, the Continental system.  The point is, he is not a judge.  He is an investigating officer.  It is the same as the Highway Transporation Board -- National Safety Board -- going out and finding why that DC-10 crashed in Chicago; or more appropriate, in my hypothetical, where a Government employee -- his survivors sue the Government, and the same Board that works for the Government investigates why it crashed.  And the Government was negligent.
     They have a duty by law to investigate.  They have a duty to conduct whatever experiments are necessary.  The Article 32 -- the Government was present at every stage.  They never objected to any of this.  They never said, "It is fallacious."  They had all the resources they have now.  There is no basis for them to come in and poo-poo it.
     It is this side of insidious to say that we were subjected to a five-month proceeding which then followed with a decision by the commanding general and call it nothing.
     The Government in this case, if Your Honor pleases, has itself faced with a rule which was designed for very few instances.  That is, when is a Defendant ever to be able to offer a report of an official investigation in a criminal case?  It is in this case.  The suggestion that the investigators were incompetent should have been made in 1970.
     Your Honor cannot here entertain or consider the suggestion that the investigation was incompetent.  It is a matter of law.  It was created by statute.  The Government did not object and participated fully.  They fully approved of these proceedings.
     For all of those reasons, I submit that although there has not been a case where this has been done, there has also not been a case where a soldier, after an Article 32, has found -- as they have done in this instance, that the basis for the charges don't exist -- that they will try to re-charge him again.
     That does not apparently take away the Government's right to proceed.  Why should it take away our right to offer their investigation in this case?

THE COURT:  Gentlemen, I think the Defendant has at least a colorable right under 803(8)(c), because of its wording and because of the construction that it is possible to put on the activity and the results thereof of Colonel Rock in conducting the Article 32 proceedings.
     His recommendation, though, is of necessity contrary to the ruling that this Court made at the close of the Government's evidence.  That, in effect, said that there was not only probable cause to indict this man, but that there was evidence from which a jury could find at that time, in this Court's opinion, that the Defendant was guilty beyond a reasonable doubt.
     I said, "They could find."  What they are going to find or what they will find, I have no idea in the world, and it is no concern of this Court, thankfully.
     I raised this question in my working of this thing last evening: can it be that the decision of an Army officer in an Article 32 proceeding can be allowed to persuade a jury that this Court was wrong in its rulings at the close of the Plaintiff's evidence?  I just do not believe -- and we know the courts all the time construe rules of evidence and regulations of the Government.  I am inclined to believe that this one never occurred to anybody.  And the fact that it didn't probably supports the ruling which I am about to make -- that this evidence cannot be admitted in the course of this trial here.
     I said that if this report is admissible, then why doesn't it fulfill the requirements of former jeopardy?  If not -- if the former jeopardy plea is not valid, then won't this Court be in the anomalous position that the evidence in the case has been tried and the case has been decided, and yet the Government has still got a right to put the Defendant to trial again?  Now, I just don't believe that is right.
     I am also concerned about the confusion which may arise in the minds of the jurors if this kind of evidence -- if you concede that it is relevant -- would create.  Won't a jury say, "How can this man not be guilty in the Army and be guilty in this court?"  Won't an argument appeal to the jury that, "In the Article 32 proceeding, there was only required to be a finding of probable cause to prosecute"?
     "If a four-week trial there didn't result in even that marginal finding, then how on earth can we, the jury," wouldn't they say, "say, on virtually the same evidence, that this man is guilty beyond a reasonable doubt?"
     If this evidence is admissible, won't any reasonable appellate court be bound to say that the motion to dismiss for former jeopardy should have been allowed -- or in any event, that the Motion for Judgment of Acquittal should have been granted -- for that on this evidence, no jury could find the Defendant guilty beyond a reasonable doubt?
     Gentlemen, I don't think that this evidence is admissible under any rule of evidence, and I don't think, if it is -- that if it is relevant -- that it ought to be admitted in this particular trial, and I will OVERRULE that motion.
     Now, with respect to your grand jury testimony, I believe we have alluded to that further.  If they will let you have the evidence, it will be well and fine.  But if they insist on their right under Rule 6, I will deny that motion.
     With respect to James Friar, I will hold that one until you gentlemen can inform me a little more about it.

MR. SEGAL:  May we have just one-half minute of the Court's time about that grand jury transcript?  The reason why another memorandum was filed is that Your Honor's suggestion that if we could show you that you had any discretion in this regard, that you would consider that.
     The memorandum was filed specifically as a result of bench conference on the subject, and it shows explicitly what Your Honor asked: that you do at this juncture of the case absolutely have the discretion.

THE COURT:  I know that.  But what I am saying is that my study of this -- I don't know what's in the grand jury things at all, but in the interest of getting this case -- well, what is it -- Justice Holmes said, "in the interest of the shortness of life" -- I don't think that we ought to explore that any further.  If the rule does not command that it be done, I believe the discretion ought not to be exercised.
     So, I just won't allow that.  We will reconvene with the jury at 10:00 o'clock.

(The proceeding was recessed at 9:55 a.m., to reconvene at 10:00 a.m., this same day.)