Article 32 Hearing
Volume 7

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(The hearing reopened at 1035 hours, 16 July 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that those persons who were present at the recess are currently in the hearing room.

(CPT William F. Hancock was called as a witness by the government, was sworn, and testified as follows.)

Questions by CPT SOMERS:
Q  State your name, please, sir?
A  William F. Hancock.
Q  Your grade?
A  Captain.
Q  Your organization?
A  Womack Army Hospital,
Q  Your station?
A  Fort Bragg.
Q  Your armed force?
A  Army.
Q  Would you state for us, please, your professional training and background?
A  I received a Bachelor of Arts degree in chemistry at the University of North Carolina, and MD from the University of North Carolina.  I spent 12 months in pathology internship; three months in pathology residency; and I've been doing pathology in the Army since 10 October '69.
Q  Where are you licensed to practice medicine?
A  I have a license in the State of North Carolina.

CPT SOMERS:  Does the defense care to examine the witness?

MR. EISMAN:  I have no questions of the doctor's qualifications.

CPT SOMERS:  I offer the doctor as an expert in the field of pathology.

COL ROCK:  So noted.

Q  Captain, did you have an occasion on the 17th of February to conduct an autopsy on the body of Kimberly MacDonald?
A  Yes, I did.
Q  Doctor, during the conduct of this autopsy, did you have an occasion to supervise the taking of pictures?
A  Yes.

CPT SOMERS:  Request that the three photographs I am handing the investigating officer be marked as Government Exhibit 33 through 35, in order given.

COL ROCK:  Government Exhibit 33 is a color photo of the right side of Kimberly's face.  Is this of the chin area?

CPT SOMERS:  Sir, that's a picture of the head.  I think a more particular description would take a little bit of explanation by the doctor.

COL ROCK:  Well, I want to try to identify this particular exhibit.

CPT SOMERS:  It is a picture of the skull with the skin peeled back.

COL ROCK:  I see.   Government Exhibit 34 is a picture of Kimberly's skull showing the skin peeled.  Government Exhibit 35 is a black and white photo of Kimberly from waist area to include the head.

(The exhibits were shown to the defense.)

Questions by CPT SOMERS:
Q  Doctor, I show you government exhibit 33 thru 35 and ask you are these photographs that you supervised at the autopsy -- that is, that you supervised the taking of?
A  Yes, these are the ones I supervised the taking of.
Q  Doctor, do you have slides that correspond to these photographs?

MR. EISMAN:  I'm going to raise an objection as to who took them -- not the supervision -- but who took them.

WITNESS:  McCafferty took them.  He is the photographer for the Department of Pathology.

CPT BEALE:   Your objection is noted.

MR. EISMAN:  It wasn't an objection to the statement.  Just an objection so that we could clarify as to who took them.  That's all I was --

COL ROCK:  Proceed, counselor.

Q  Using the slides which correspond to these pictures, doctor, would you describe for us, please, the nature and extent of the injuries sustained by Kimberly MacDonald?

(The lights were dimmed and the first slide was projected.)

A  This first photograph shows the right side of Kimberly's face and it shows basically two types of lesions; the upper lesion is located in the region of the cheek and the right ear and shows multiple abrasions and bruises of the skin.  This type lesion is most likely caused by a blunt object and appears to have been applied in at least two times to this area.  The other major group of lesions is located on the right side of the neck and consists of multiple incisional stab wounds which penetrate into the neck and transected the windpipe.  These were eight to ten in number.  Some of them overlap so that a definite number cannot be ascribed to these.

CPT SOMERS:  If I may, the slide which we have just had reference to corresponds to Government Exhibit 33.  The slide which is now on the screen corresponds to Government Exhibit 34.  Proceed, doctor.

A  This next slide, as was indicate shows the scalp reflected back and shows the top and right side of the skull.  What is intended to show is a severe fracture of the skull which extends throughout almost the entire length of the right side of the skull.  This fracture corresponds with other fractures noted in the base of the skull which were multiple in number.  This is just one of the many fractures of the skull.  The third slide which shows the left side of Kimberly's face, a close up projection of the original black and white photograph that was shown originally, what is intended to show here --

MR. EISMAN:  Well, I am going to object to this as being not the same as the exhibit.  Doctor, could you just wait until we have a ruling on this.  We are now being shown a slide which is not the same -- does not portray the same thing as the exhibit.  This is an enlarged view, I presume?

WITNESS:  Yes.

MR. EISMAN:  I show you Government Exhibit 35, doctor.  Is it an enlargement of Government Exhibit 35?  Of the head area?

WITNESS:  Yes, it is.

COL ROCK:  It is not the photograph which you are holding in your hand, is it?  Is it, Captain Somers?

CPT SOMERS:  It is not the entire photograph which makes up Government Exhibit 35.  It is an enlargement of the left side of the face from Government Exhibit 35.  I can make the slide available as part of the record as well as Government Exhibit 35.

MR. EISMAN:  The photograph which has been marked in evidence would be the best evidence.

COL ROCK:  I assume there is no photograph of this slide?

WITNESS:  I don't have one, sir.  Not of this slide.  The original picture was made from a negative, and so was this slide made from a negative.

COL ROCK:  From the same negative?

WITNESS:  The same negative.

COL ROCK:  Can you describe, without the use of this slide in using Government Exhibit the points you wish to make?

WITNESS:  Yes.

COL ROCK:  All right, then we'll -- your objection is sustained.  Let's remove that slide from the screen.

CPT SOMERS:  I was not aware that this was the case with this particular photograph.

COL ROCK:  We will have the counsel present at the investigating officer's table while we view Government Exhibit 35 at closer range, and could you please turn it around this way so I can see it.

WITNESS:  This intends to show you what I feel is the third major type lesion sustained to the head.  This is an unwashed photograph.  That's the only one I have.  The reason I am interested in this area, this black area which is represented by a sharp cut in this area, through which bone protruded.

CPT SOMERS:  Doctor, if I may stop you.  You are referring now, for the record, to the left cheek area.  Is that correct?

WITNESS:  Yes, that's correct.

CPT SOMERS:  Go ahead, sir.

MR. EISMAN:  It could be referred to as the occipital region?

WITNESS:  Occipital would be posterior.  This would be orbital.  And this is represented inside the skull by multiple fractures in this area with bruising of the brain directly behind this.  And this again was not removed, but upon palpation numerous fractures were detected from the bridge of the nose infraorbitally, and of this cheek bone.

CPT SOMERS:  What does infraorbitally mean?  

WITNESS:  Below the eye.

COL ROCK:  I think it would be appropriate to get a pen and circle that area and have the doctor sign and date this so we will know the specific area referred to.  If you will please mark the area, the general area you area referring to.  I also ask if you would please, in this space here, sign your name and the date.

(Witness complied.)

COL ROCK:  Is there anything else that you wish to relate using this specific photograph?

WITNESS:  No.

COL ROCK:  All right.

(All parties returned to their tables.)

Questions by CPT SOMERS:
Q  Would you please tell us, doctor, the effects of these injuries upon Kimberly MacDonald?
A  What I considered to be the major wound was the wound to the right side of the head which caused the fractures of the skull, caused extensive bruising of the brain in this area, and was of such severity to cause coma and possibly death shortly thereafter.  The stab wounds to the neck were sustained before death, but were not thought to be a significant factor in her death, as opposed to the wounds to the right side of the head.  The wound to the left cheek area was a major wound but in itself was not sufficient to have caused death.
Q  Doctor, did you type Kimberly's blood?
A  Yes, the lab technician typed it.
Q  Was that under your direction?
A  Under our direction, yes.
Q  And what type of blood did Kimberly have?
A  She was AB positive.
Q  Doctor, did you give an opinion as to whether the trauma from -- to the head or the stab wounds were inflicted first?
A  It is my opinion that the trauma to the head, to the right side of the head, was sustained first.  I cannot give an opinion as to the trauma to the left cheek area.
Q  Did you find a great deal of bleeding from the wounds to the neck?
A  Not excessively, no.
Q  Doctor, did you also have an occasion on the 17th of February to conduct an autopsy on the body of Kristen MacDonald?
A  Yes, I did.
Q  And did you, sir, supervise the taking of pictures in connection with that autopsy?
A  Yes, I did.

CPT SOMERS:  Now at this time --

MR. EISMAN:  If I may raise a point out of order.  At this point I think it would be easier for the investigating officer's continuity, instead of going on to another autopsy and then having questions back and forth between the two of them if I may be permitted to examine the witness as far as the first autopsy, and then have the government present the evidence as far as the second autopsy, so that we can have a -- less confusion, I think, as far as --

COL ROCK:  This seems more logical.  Do you have any objection?

CPT SOMERS:  I have no objection.

COL ROCK:  Let us proceed in that fashion, please, counselor.

MR. EISMAN:  Thank you, sir.

Questions by MR. EISMAN:
Q  Doctor, I don't believe that you've -- I don't think you've gotten a complete picture as far as the other wounds, other than blunt trauma.  We've discussed -- how many other wounds were there of a stab nature?
A  Other than the ones to the neck?
Q  A total.
A  The total stab wounds were eight to ten stab wounds to the right side of the neck.
Q  I'm going to show you a copy of an autopsy report which has been furnished to us and ask you to read it or look through it at least.  When you are done tell us whether or not you feel this is a complete autopsy report that you performed.

CPT SOMERS:  Sir, I might state at this point that I do have in my possession copies of the autopsy protocols for each of the two individuals that this doctor was concerned with which I do intend to put in evidences as government exhibits, if that will facilitate procedures.  I had intended to do it at the close of his testimony.

MR. EISMAN:  Well, it's just that he's looking at this copy, and if it is the same as yours, then we'll have it as an accused exhibit, since you didn't do it before.

CPT SOMERS:  You are examining this witness in the midst of my examination.

MR. EISMAN:  Well, with regard to this one individual, you have completed your examination regarding her.

WITNESS:  In a brief perusal of this autopsy protocol I agree with what's in it.  I recognize what I think as an addition previous to the one that was sent out as a final copy.  This copy was sent out and after consultation with advisors in Washington, the Pathology Branch in Washington, I think some of these were reworded slightly to fit more with the protocol that they like to establish at their institution.  I would have to compare the two, but basically, they seem to agree.

MR. EISMAN:  But these are your words, though, not the words which were reconstructed to fit Washington's request.  Is that correct?

WITNESS:  That is correct.

MR. EISMAN:  All right I would ask that this report be marked the next --

COL ROCK:  This report will be accepted as Accused Exhibit 26, Autopsy Report on -- is it Kimberly, Doctor?

WITNESS:  Kimberly, yes, sir.

Q  Doctor, did you anywhere in your autopsy report make an opinion as to which of these wounds were inflicted first or last, which were prior to or subsequent to each other?
A  Not --
Q  Is that included anywhere in your autopsy report as you can recollect?
A  I think I said the wounds to the right side of the head were sustained, first.  I would need to read it to be more specific.
Q  And that would be based upon what?
A  The more extensive hemorrhaging or bleeding into this area, say as opposed to the left bleeding into the neck, and drainage back into the lungs.
Q  Now as a practical matter in your experience, would an injury to the side of the face and nose in that area probably cause more bleeding than a similar injury on the neck where it occurred?
A  It would depend on the extent of the injury.
Q  Was this injury more extensive than the injury to the neck, in your opinion?
A  You mean the right side as opposed --
Q  Yes.
A  Well, they were different type injuries and it would be a little difficult to compare them as regard to bleeding, in a sense.
Q  You only found wounds of incise in nature.  Is that correct?  When I say incise, I mean as opposed to a puncture type wound.
A  To the neck, yes.
Q  Did you find any puncture wounds anywhere else on the body?
A  Not that could be identified as puncture wounds.
Q  Now when you say not that could be identified as puncture wounds, what did you find, if you can recall?
A  There was a small somewhat circular but irregular lesion located in the lateral corner of the right eye, which was under discussion at one time, could have been a puncture wound, but the final consensus was that this was probably just caused from a -- say a blunt instrument had hit it and pushed it against the underlying bone.
Q  So that the only tools, other than the blunt trauma would be incised wounds.  Is that correct?
A  That's correct.
Q  And how many of those were there?
A  There were eight to ten, two of them overlapping in the neck.
Q  Can you determine whether or not they were -- what time they were inflicted as opposed to the blunt trauma?  In other words, from any type of reference or is there any way you could determine within how many minutes they were --
A  Not in a matter of minutes.
Q  Were they inflicted while there was still life in the body?
A  It is my opinion that they were inflicted while blood pressure was still maintained.
Q  Which would indicate that it was close to the time of the blunt trauma.  Would that be correct, since the blunt trauma was attributed to cause of death?
A  Well, not necessarily.  In a matter of just blunt trauma causing death, there are no specific time intervals set up for this.  You can't find a good reference to put this against.  There have been experiments, I recall reading at one time, with animals and the magnitude of the blows and the time interval after the blows, whether or not the concussion or black out was immediate, or whether death was immediate was variable.  So it could have been a variable amount of time when she was unconscious, completely unconscious.  This could vary considerably.
Q  Well, what would be, in your medical opinion, the outside limits for her to have remained alive?
A  It would be very difficult.  I'd have to say a few hours, at the maximum.  That's the closest I can come to.  It is difficult in this area, because theoretically you can't experiment with such things.
Q  I don't want you to give a medical opinion if you can't.  Just say you can't and we will understand.  Do you have any way of knowing where these injuries were inflicted?
A  The blunt injuries?
Q  In what location in the house?
A  No, I have no knowledge.
Q  Was a hair sample taken by any investigator from Kimberly MacDonald?
A  Not to my knowledge.
Q  Would you normally do that in your pathology examination that you conduct?  There would be no need for you to do it unless it was requested?
A  Not for me personally, no.
Q  But it would be good standard medical practice not to do it unless it had been requested by someone?  It's not required in your training or your education to do that?
A  Not -- depending on the type autopsy you do.
Q  But you were not asked to do this by the investigators.  Is that correct?
A  Not to my knowledge.
Q  And had you been asked to do it, you would have complied, wouldn't you have, doctor?
A  We would have tried to.

CPT SOMERS:  I object to that.

Q  Well, has there been any objection --

CPT BEALE:   Just a moment.  What are your grounds for this?

CPT SOMERS:  He's asking the doctor to draw a conclusion on facts that he cannot I submit, draw a conclusion.

MR. EISMAN:  Well, I think my following question would answer his objection.  I'm asking if he had been asked to do this, would there have been any medical objection or any personal objections, or any other objections which he would have made at that time for not doing it.

COL ROCK:  How is that relevant, counsel?  I mean, he said he didn't take any hair samples.  What relevance is it to the investigation?

MR. EISMAN:  Well at the time, obviously, if he was not asked to do this by anyone, it was not considered relevant to the investigation in this case and not important by the investigators.

CPT BEALE:   The objection is sustained.

MR. EISMAN:  Okay, fine.

Q  Were any investigators present while you conducted your autopsy or did you receive any special instructions from any investigators regarding this autopsy?
A  They were present initially -- all three over a matter of a day's time, a working day, and they were present initially, and I did these autopsies in the afternoon, and was not present in the morgue all the time, so I can't say, you know, really.
Q  Did you receive any special instructions with what the investigators might be looking for, that you were asked to look for in this autopsy regarding anything that you can recall?
A  There was a discussion, but I can't recall specifically if there was requests made as to specific nature.  We received no written --
Q  No requests for things to look for, if you can recall?
A  Not specifically.  There was discussion, but as to its nature, I don't recall.
Q  Now could you estimate the time of death for Kimberly MacDonald?
A  Somewhere within the range of nine hours preceding the time she was -- found there or known dead by the military police.
Q  In pathology is there some way of determining time of death at least to a medical certainty?  Is that part of your education as a pathologist?
A  It's part of the education, yes.
Q  Well, would that be the method of determining body temperature in relationship to the time of death and a curve of body temperatures so that you could at least pinpoint more closely than nine hours, normally?
A  Well, this has brought up a lot of discussion in previous cases and in this case too, and it's my opinion that if the temperatures are taken, they are not more specific unless one is doing it under experimental conditions and given unknown antecedent facts as to what was going on, whether or not the person was ill or numerous factors.  The temperature can vary, oh, upwards from three to five degrees, and this puts variability on it anywhere from five to six hours.
Q  Was anything done in this case with regard to the body of Kimberly MacDonald which would have made it more difficult to estimate the time of death by body temperatures?
A  Not in my opinion, no.
Q  Was she placed in any storage area where the body temperature might have been lowered faster than normal?
A  Yes.
Q  Would that have caused her body temperature to have lowered faster than normal?
A  Yes, it would.
Q  How long, to your knowledge, was Kimberly MacDonald in that type of area before you saw her, the total time that you were made aware of?
A  On the basis of hearsay, I don't know, this is documented, but they were put in within the range of an hour before we saw them.
Q  And that would effect, in your judgment the body temperature range of this child?  As far as cooling process.
A  It has a bearing on it.

MR. EISMAN:  I have nothing further.  Thank you very much, doctor, in regard to this autopsy.  The investigating officer might have some inquiries to make.

COL ROCK:  Do you have any redirect, Captain Somers?

CPT SOMERS:  Yes, sir.

Questions by CPT SOMERS:
Q  Captain Hancock, I hand you a document and ask you to examine it and tell us if it is identical to the report which the defense gave you on Kimberly MacDonald?

COL ROCK:  Would it help if he had the two to compare?

(A-26 was handed to the witness.)

WITNESS:  By identical, do you mean word for word?

Q  Is it the same report?
A  In substance, but not word for word, it is not identical, no.
Q  Is this a later or earlier report?
A  This is the final edition.  This is the earlier report.
Q  You say the document you refer to as the earlier report is marked A-26.  Is that correct?
A  That's correct.

CPT SOMERS:  At this time I offer the document referred to as the final report as a government exhibit.

MR. EISMAN:  I will at this time issue an objection to that being offered into evidence.  The doctor has testified that A-26 was his report, made in his words, that he subsequently changed the report to comply with the request from other people, but the actual final autopsy report was that A-26, while he changed the words he did not perform any further tests or make any further conclusions, and to, at this time, inject something which has been changed at the request of other people would not be entering the words of the doctor as he made the autopsy, but merely the words of someone else, and I don't think that that would be properly accepted by the investigating officer.

CPT SOMERS:  Doctor, the document that I just showed you, is that your report?

WITNESS:  Yes -- would you repeat that?

CPT SOMERS:  This document that I've just shown you, is this your report?

WITNESS:  This is my report as it was reworded and in its final edition, yes.  These are my words.

CPT SOMERS:  Very good.

MR. EISMAN:  Were they changed, however, when -- from the wording at the request of someone else?

WITNESS:  Some specific words such as lacerations or contusions, as to exactly how we worded it, were changed.  I don't recall if the basic substance was changed.  I'd have to examine it more closely.

MR. EISMAN:  I think the best evidence rule would prevail here at least we have the words as they were given by the doctor before any outside considerations came into effect on A-26.  I don't think that the changes which he was required to make, or asked to make subsequently would reflect his actual impressions as the autopsy took place.  The final report is not a report including additional information, but merely the same report but which was changed to comport with someone else's request.  I therefore believe that this will not be properly accepted as the doctor's real report.

CPT SOMERS:  The witness has stated that this is his final official protocol.

CPT BEALE:   Doctor, let me ask you something.  Is it normal for you to submit a report and then have the wording of it changed in Washington?

WITNESS:  This is standard procedure with all autopsies.  They are done here and they are referred to the Third Army lab at Atlanta, Georgia, for their evaluation of what we did, and subsequently referred to the AFIP in Washington, D.C.  And regularly we get back reports saying that the autopsy such and such was filed essentially in accordance with your findings.  We occasionally do not get specific rewording back, but I have seen other reports in routine autopsies that they wished a different order or wished that they be expressed using a few different adjectives.

CPT BEALE:   Well, in these particular autopsies, the changes that they made, were they merely grammatical or style changes as opposed to substance?  Can the words they changed be construed by you one way and by another pathologist another way?

WITNESS:  Not, not to my first impression, no.  They are primary grammatical or --

COL ROCK:  Style.

WITNESS:  Style.

CPT SOMERS:  This is, I would like to point out, the protocol.

COL ROCK:  What were you saying, Captain Somers?

CPT SOMERS:  Simply, that this is it, in fact, the final protocol over the signature of the doctor and acknowledged to be such by the doctor, and I think is properly admissible as an exhibit.

COL ROCK:  But, Captain Somers, is there any real reason for this that will change the substance of the testimony of the doctor or present to me any new evidence that is not contained in this document?

CPT SOMERS:  The only reason, sir, is so that the investigating officer may have the final official autopsy protocol, which was filed in this case.

COL ROCK:  So then I would have two documents saying basically the same thing, though.

CPT SOMERS:  You will, yes, sir.

COL ROCK:  The objection of counsel for the accused is sustained.  However, I would request that we use the final copy of the other one so that we can obviate that particular problem arising.

MR. EISMAN:  At this time could we request a final copy of all of these autopsies if they are in the possession of Captain Somers.  We've only been provided with what we thought was the final autopsy and now we've just discovered that it is not the final autopsy.

COL ROCK:  Yes, I think that is a reasonable request.

MR. EISMAN:  Thank you, sir.  Sir, I just want to make one administrative change here.  We just realized the covering letter on this report refers, when I read it a little closer, to Kristen MacDonald.  There is a duplicate letter referring to Kimberly MacDonald.  Actually we placed this one on here in error.  If we could just remove this letter and put this letter on as A-26.

COL ROCK:  Is there any objection to that?

CPT SOMERS:  No, sir, it should be corrected.

COL ROCK:  Now at the time the question arose, the counsel for the government, I believe was on the floor.  Do you have any further facts to raise, counselor?  You left these three pictures here.  I didn't know whether you had further need of them.

CPT SOMERS:  If I could just a moment, sir.

Q  Captain Hancock, do you think that the placing of the body of Kimberly in the cooler for the period, whatever it was, had a great effect one way or the other on your estimation of time of death?
A  Not in our present state of knowledge, sir, no.
Q  And is your present state of knowledge in this area, to put it more precisely, the present state of knowledge of science in this area, exact?
A  It's not exact.  My knowledge here is correspondence, and correspondence particularly with Thomas K. Marshall in Ireland concerning this because he has written what I thought was one of the more definitive scientific papers on it.  His reports give quite a considerable variation in temperatures and he repeatedly warns people not to use temperatures unless all the facts are known, use temperatures as a basis of determining time of death.  So unless you are ideally set up to know all the factors, you are taking some sort of risk I would imagine to use temperature in predicting time of death.
Q  And where you come upon a body which has been dead for some unspecified period of time in an environment not precisely controlled, do you really have variables which will affect your determination considerably?
A  Yes.

MR. EISMAN:  I have one further question regarding that.

Questions by MR. EISMAN:
Q  Did the placing of the body in the morgue have some effect on your ability to estimate the time of death?
A  Well, my final answer, I guess, would be that had they not been placed there, I don't think for precise estimation as would be needed in this case, that I could have done it, had they not been placed there.
Q  But would have affected your judgment -- I'm not asking about precise -- but did that affect in some way your ability to judge time?

CPT SOMERS:  I think he has answered the question.  I object.

MR. EISMAN:  I am asking for a yes or no answer.  Would that affect, a pathologist judgment, if the body was placed in a cooler?

CPT SOMERS:  Well, the doctor has answered this question with respect to this case.  I still object.

CPT BEALE:   Your objection is sustained.

MR. EISMAN:  I have no further questions.

CPT SOMERS:  Sir, do you wish to conduct an examination on this issue?

COL ROCK:  Yes.  Did you have occasion, doctor, to take any debris from the hands of Kimberly's body?

WITNESS:  There was quite a few samples taken.  Doctor Gammel and I were there at the same time that he -- I know in specific reference to fingernail scrapings he took them, and I labeled the slips and put them in the bottles and handed them.  This was sort of cooperation.

COL ROCK:  I see.  Now was this done initially or early morning, or in the case of Kimberly, was this done at approximately 1530 hours, the time of the autopsy?

WITNESS:  This, to my recollection, this was done earlier in the morning, and initial procedure on all three.

COL ROCK:  You consider that the blows to the right head were the principal cause of death?

WITNESS:  Yes.

COL ROCK:  Did I understand you to say that the neck wounds were made subsequent to death?

WITNESS:  No, they were made before death, but death occurred shortly after that.

COL ROCK:  I have no further questions.

MR. EISMAN:  I have nothing further.

CPT SOMERS:  Sir, the next portion of the testimony of the witness, I'm sure, will take an hour or so, and it is 1130.  Do you wish to break at this time?

COL ROCK:  I suggest that will be appropriate.  Captain Hancock, you advised that you will discuss your testimony with no person other than counsel for the government or counsel for the accused.  Do you understand, sir?

WITNESS:  Yes, sir.

COL ROCK:  The hearing will be recessed until 1330 this afternoon.

(The hearing recessed at 1127 hours, 16, July 1979.)

(The hearing reopened at 1333 hours, 16 July 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that those parties who were present at the break are currently in the hearing room, including the witness, Doctor Hancock.  I would like to remind the witness that you are under oath.  I believe at this stage we are prepared to proceed with the doctor's expert testimony concerning the next deceased.  Proceed, counsel.

Questions by CPT SOMERS:
Q  Doctor, I believe I asked you before lunch whether you had an opportunity to conduct an autopsy on Kristen MacDonald, did I not?
A  Yes, I did.
Q  And in the conduct of this autopsy did you have occasion to supervise the taking of pictures?
A  Yes.

CPT SOMERS:  I ask that the three pictures which I now hand to the investigating officer be marked as government exhibits.

COL ROCK:  G-36, black and white photo of a hand.  G-37, a color photo of a child's body from navel to include face.  G-38, color photo of a child's back from waist and showing head.

(G-36 through G-38 were shown to the defense.)

Q  Doctor, I show you Government Exhibit Exhibits 36 thru 38 and ask you if these were among the photographs you supervised the taking of during the autopsy of Kristen MacDonald?
A  Yes, there are.
Q  And, doctor, in the course of your autopsy and subsequent report, did you have occasion to render a final autopsy protocol in the case of Kristen MacDonald?
A  Yes, I did.

CPT SOMERS:  I ask that this document be marked as a Government Exhibit.

COL ROCK:  G-39 is final autopsy report on Kristen MacDonald.

(G-39 was shown to the defense.)

MR. EISMAN:  At this time I would question the entrance of Exhibit G-39 on the same basis that I objected to the last offer.  This is a report which is not the report we received from Womack Army Hospital, and it is obviously tendered under the same conditions that was to Washington -- the doctor's original report was sent to Washington and changes were made at the request of someone else to change the wording of the doctor, as we have in the Accused Exhibits would be the best thing for the investigating officer to have since they all follow the same format, the same wording, and this might only tend to confuse the investigating officer.  If the government, at this time, wants to introduce the other autopsy, the actual final autopsy report before the changes were made, I would have no objection to its entrance as his exhibit, but I don't think the exhibit which he is offering is of the same nature as the other two exhibits.

Q  Captain, I show you --

MR. EISMAN:  Wait a minute.  Wait a minute.

CPT SOMERS:  I don't think the investigating office can rule until he knows a little bit more about this.

CPT BEALE:  Counsel, just a second.  Mr. Eisman, I think that both you and Captain Somers realize the predicament this is putting Colonel Rock in, the fact that we've got one autopsy report which was Doctor Hancock's "final report" that he sent to DA and then with some administrative changes they sent it back, and he tenders the second "final report."  And I think to clarify things, probably that the best thing to do is just now to admit both of them and let the investigating officer go ahead and read both of them.  He, himself, can read the differences.

MR. EISMAN:  All right, can we have at least an order that we can provided with copies of each of these final reports?

CPT SOMERS:  Certainly, counsel for the government will furnish to the defense a copy of both final reports that have not previously been furnished to them.  The best thing to do would be go ahead and mark now the final report on Kimberly MacDonald and go ahead and have that brought in.

CPT SOMERS:  I hand that report to the investigating officer.

COL ROCK:  Government Exhibit 40, the final autopsy report on Kimberly MacDonald.

MR. EISMAN:  And at this time we would offer as the next accused exhibit, what we consider the doctor's final report before it was sent to Washington.

CPT SOMERS:  Sir, this can be done in its proper turn.

MR. EISMAN:  Well, just as a practical matter so as not to delay.

COL ROCK:  A-27 is the initial autopsy report on Kristen MacDonald.

Questions by CPT SOMERS:
Q  Doctor, I show you Government Exhibits 39 and 40.  Are those the -- what are those?
A  These are the final drafts on the autopsy of Kristen MacDonald.  One is the final before consultation with AFIP and the other is some rewording after consultation with --
Q  Now, Doctor, I believe if you will compare 39 against 40 you will see that they refer to different people.
A  I'm sorry I was looking at the wrong --
Q  I can't blame you for being confused, but can you tell me what those are?
A  I need to compare these with my final copies to make sure that they are the final copies that I have.

CPT SOMERS:  All right, sir.

A  G-39 corresponds to my final report as corrected on Kristen MacDonald.  G-40 is the final copy before corrections were made and some of the wording of the copy.

COL ROCK:  On which individual?

WITNESS:  This is on Kimberly.

CPT BEALE:   Doctor, G-40 -- is that report there, is that the one you got back from Washington with the corrections?  That's the final one you submitted with the corrections from Washington on Kimberly?

WITNESS:  No, it's the one before submission.

COL ROCK:  We will take a five minute recess.

(The hearing recessed at 1338 hours, 16 July 1970.)

(The hearing reopened at 1355 hours, 16 July 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that all parties that were present at the break are currently in the hearing room.  Proceed, counselor.

CPT SOMERS:  Sir, at this time the government requests to withdraw Government Exhibits 39 and 40.

COL ROCK:  Permission granted.

Questions by CPT SOMERS:
Q  Would you tell us please now the nature and extent of the injuries suffered by Kristen MacDonald, using the slides?
A  Do you wish to start with the slides?  I can do it either way.

MR. EISMAN:  Well, if the slides are not absolutely necessary in this case I would ask that they not be shown.  If the doctor believes he can explain it without the slides I don't think there is anything about this that is extraordinary.

CPT SOMERS:  The government still contends that the slides add to clarity.  Two out of three of these pictures correspond to the slides which we have.

COL ROCK:  Well, I'd like to see the slides for clarification in my own mind.  Therefore, if that was an objection, the objection is overruled.

CPT SOMERS:  Start with the slides, please, doctor.

WITNESS:  The first picture is an anterior view of Kristen MacDonald and I shall essentially describe three types of wounds.  The first will be these incisional wounds which are four in number, one, two, three, four; two of these wounds penetrated deeply and penetrated the right heart.  The second group of wounds consist of five circular penetrating wounds of which is one, two, three, four, five are shown in this area.  These penetrated only superficially to the extent of the underlying muscle.  The third group of wounds consist in a very superficial circular puncture wounds on the right side of the chest which consisted of twelve in total number, ten of which are in this pattern.
Q  Indicating an S pattern?
A  Simulating an S pattern, yes.  Some other additional findings, there was -- can barely be seen in this photograph -- but there was one incisional stab wound to the anterior neck, which again transected the thyroid at one point.  Also shown to some extent on this photograph are three, one, two, three superficial abrasions of the right lateral neck, which is just a scraping of the skin.  Not shown on this photograph are two additional abrasions or peeling away of the superficial skin on top of the right shoulder.
Q  Doctor, you have been referring to a slide corresponding with Government Exhibit 37?
A  That's correct.
Q  Proceed.
A  The second photograph shows the posterior aspect of Kristen MacDonald.  It shows twelve incisional wounds.  These are the only type wounds noted on the posterior aspect. These penetrated the left lung cavity, lacerating the lung, and in addition, penetrated the left heart in two instances.  Those are all the slides I have.  One black and white photograph --
Q  Doctor, this most recent slide corresponds to Government G-38.  Is that correct?
A  That is correct.

(All counsel and witness approached the IO's desk.)

WITNESS:  This is a picture of Kristen's right hand, and what is intended to show is multiple incisional wounds, this being one on the left --

MR. EISMAN:  That's an incisional wound?

WITNESS:  That's a very small incisional wound.

MR. EISMAN:  Is that a circular incisional wound?

WITNESS:  It is difficult to say from this.  It is in the order of one to two millimeters.  It does appear in a circular here.

MR. EISMAN:  Does it appear to be in length?

WITNESS:  It appears of this nature (pointing to another wound).  This is the major lesion which is an incisional.  This penetrates through the skin and exits on the other side.

CPT SOMERS:  You are referring now to a wound on the fourth finger?

A  The ring finger on the right hand.  These other multiple small wounds are -- appear incisional -- are very superficial puncture wounds.  Not shown in this photograph was an incisional wound on the palm aspect of the right index finger, and not shown here are also small incisional wounds on the right hand.  I don't have a photograph of the right hand.  

CPT SOMERS:  This is the right hand.

A  I mean the left hand, excuse me.

COL ROCK:  Doctor, would you please circle the areas here that you described in this photograph with the pen?  And then at the bottom please write your name and the date.

(Witness complied.)

(Counsel and the witness returned to their seats.)

Q  Would you describe, doctor, the effects of those wounds, please?
A  Both the wounds to the anterior and posterior chest as mentioned penetrated the heart.  Either of these were sufficient to have caused death by exsanguination or bleeding from the heart.  The wounds to the neck was again felt not contributing primarily to death.
Q  Doctor, did you have Kristen's blood typed?
A  Yes, I did.
Q  And what type of blood did she have?
A  She was O negative, DU negative.

CPT SOMERS:  Your witness.

Questions by MR. EISMAN:
Q  Doctor, you've described a total of 17 circular wounds.  Is that correct?
A  I don't have the exact -- as I recall it was 17.
Q  There were five in the chest area, four of which was superficial.  Is that correct?   In the left chest area, five circular wounds, four of which were superficial in the left --
A  All five were superficial.
Q  All five were superficial?  Then you described twelve additional circular wounds.  Were they also superficial?
A  Yes, sir.
Q  And you said that they were in, what you described as an S pattern on the right chest?
A  That's correct.

MR. EISMAN:  I have no further questions.

CPT SOMERS:  I think there is one thing we can clarify.

Questions by CPT SOMERS:
Q  Doctor, with respect to Accused Exhibit A-26 and 27, are they copies of the final autopsy protocols?
A  They correspond with my final copies.
Q  And do I understand that you contribute cause of death in Kristen's case to exsanguination?
A  Yes.

CPT SOMERS:  No further questions.

COL ROCK:  Doctor, were there any broken bones of the extremities on Kristen's body?

WITNESS:  Not to my knowledge.

COL ROCK:  You would have known if there had been?

WITNESS:  If they have been major, yes.

COL ROCK:  What do you mean by the term, DU negative blood?  That's the first time I've heard that.

WITNESS:  There's a small percentage of people who are sometimes classified as positive which, when further tested or rather are classified as negative, but when further tested they are weakly positive so we routinely now do the second test to make sure or certain that is negative.

COL ROCK:  So DU negative merely is confirmation that it was O negative, as first read?

WITNESS:  That's correct.

COL ROCK:  Can you, from your professional knowledge, make any estimate as to whether an ice pick was used in any of the penetrating wounds on Kristen's body?

WITNESS:  The circular type wounds are compatible with this, with a circular pointed object.

COL ROCK:  If I understood you correctly, you indicated that the penetrating wounds which could have been made by an ice pick only penetrated to the muscle tissue.  Is that correct?

WITNESS:  The five on the left side of the chest penetrated to the muscle and the ten and additional two on the right side of the chest did not penetrate to the muscle, but penetrated only to the fat.  They were superficial.

COL ROCK:  Have you had occasion to observe bodies previously that had penetrating wounds that you associated with an ice pick?

WITNESS:  Not specifically.  I have seen some in conjunction with autopsies being done where I was undergoing my training.

Q  From your professional knowledge, is it unusual that an ice pick would not penetrate further that you have indicated in this case?

WITNESS:  It would depend on the force and, I would imagine, the sharpness of the point.  Those two factors.  A reasonable amount of force should cause penetration.

COL ROCK:  Now with reference to the knife wounds, or what seemed to be knife wounds, would it be your impression that these were made with the knife blade pointed down or was it a slicing type action?

WITNESS:  The direction of the blows appears -- were slanted to have been straight into the body, which could have been at angles to the right or left, but as far as upward and downwards, they were straight.

COL ROCK:  I have no further questions.  Does either counsel have questions?

MR. EISMAN:  No, sir.

CPT SOMERS:  None by the government, sir.

COL ROCK:  Captain Hancock, you are advised that you will discuss your testimony with no person other than counsel for the government or counsel for the accused.  Do you understand this?

WITNESS:  Yes.

COL ROCK:  You are excused, sir, subject to recall.

(The witness saluted the IO and departed the hearing room.)

CPT SOMERS:  I would suggest that we recess now.  I need to see, first whether Doctor Jacobson is here, and secondly to give the defense their opportunity to speak to him.

COL ROCK:  All right, we will recess for an appropriate period.

(The hearing recessed at 1412 hours, 16 July 1970.)