Article 32 Hearing
Volume 8

---

(Major Severt H. Jacobson was called as a witness by the government, was sworn, and testified as followed.)

Questions by CPT SOMERS:
Q  State your full name, please?
A  Severt Harold Jacobson.
Q  Your grade?
A  Major.
Q  Your organization?
A  Womack Army Hospital.
Q  Your station?
A  Fort Bragg.
Q  Your armed force?
A  United States Army.
Q  Would you tell us, please, what your education background is?
A  I completed high school; BS degree at the University of North Dakota in 1959, I believe it was, '60; an MD degree at the University of Minnesota in 1965; internship at St Luke's Hospital in Duluth, Minnesota.
Q  And what experience have you had since that time?
A  I was drafted immediately after my internship into the Army and I've been stationed at Fort Bragg the entire time since then except for some time in Fort Sam Houston and Fort Benning, Fort Rucker, primarily working the first three years here in Dispensary duty, either as a battalion surgeon or a flight surgeon.
Q  During the past year what --
A  During the past year I've been in the residency training program at Womack Army Hospital, a specialty year in neurosurgery.

CPT SOMERS:  Does the defense care to examine the witness on his qualifications?

MR. EISMAN:  I have no questions about the major's qualifications.

CPT SOMERS:  At this time the government tenders the witness to the investigating officer as an expert in the field of medicine.

COL ROCK:  So noted.

Q  On or about the 17th of February did you have an occasion to see Captain MacDonald?
A  Yes, I did.
Q  Have you subsequently given a statement with reference to the subject?
A  Yes, I have.

CPT SOMERS:  Request that this document be marked as a government exhibit.

COL ROCK:  This will be G-40.

MR. EISMAN:  I am going to object to this statement at this time as a Government Exhibit unless the government purports that this is not the contents of the Major's testimony today. The best evidence would be his testimony today.  If there is going to be a conflict, the statement would have no evidentiary value.  It would be merely circumstances.  I think the best evidence that could be marked here would be the doctor's records of the Captain regarding this matter, not his statement, given subsequently without the records.

CPT BEALE:  Well, now Colonel Rock ruled earlier in the proceedings that if, in fact, any of these witnesses made a sworn statement that the same should be marked and given the witness so that it could refresh his memory.  Now, if you care to use other records with which to refresh his memory you may do so, but at this time the prosecution or counsel for the government has the floor and this particular exhibit will be admitted.

MR. EISMAN:  At this time --

COL ROCK:  May I see that again, please, sir.

MR. EISMAN:  At this time because we are not sure of the doctor's testimony, because of the fact that the actual records regarding what he's going to testify I imagine, more extensive than a short testimony -- or statement the Colonel has, I think in all fairness to the witness, I would ask that, if the government's attorney is going to question the doctor about his care and treatment of Captain MacDonald, that he at this time introduce or provide to the doctor a copy of his medical report so that if, all during his questioning, he has to refer to it, he could; or if the government's attorney will not then I would ask him -- the investigating officer's permission to have this marked as an accused exhibit, the medical records, so that the witness could have before him and could refer to these if there is a question in his mind which arises during the questioning.  But I think the question solely about the -- on the basis of a short statement given, without fifty -- forty to fifty pages of medical records, I think the investigating officer and the witness will be put at a disadvantage.

CPT SOMERS:  I object to this.  This is the government's direct examination.  If the defense counsel wishes to introduce something during his cross examination to use with this witness, the government will then consider it as objectionable.  But at this point, this is our direct examination.  I object to this procedure.

CPT BEALE:  Okay, now doctor, let me ask you this.  I don't presume to know what the counsel for the government is going to bring out on his direct examination.  In your opinion, will you need something other than this particular witness statement to able to effectively testify and make Colonel Rock aware of all the facts that you feel are pertinent?

WITNESS:  Is that pertinent with the discussion with both sides?

CPT BEALE:  No, just with Captain Somers.

WITNESS:  I don't believe so.

CPT BEALE:  Very well.  Your request to have that marked at this time is denied.  However, on cross examination you may do so, if you care to.  All right, proceed, counselor.

Q  Major I show you Exhibit G-40 and ask you if that is a copy of the statement that you gave?
A  Yes, it is.
Q  You may keep it and refer to it as you need to.  Where did you have an occasion on the 17th of February to see Captain MacDonald?
A  In the emergency room at Womack.
Q  When was that?
A  That was the morning of the 17th of February.
Q  At the time that you saw him did Captain MacDonald recall to you what had taken place earlier?
A  Yes, he did.
Q  Would you tell us, please, what the substance of this information was?
A  He was brought to the hospital and I was the second, I believe, second physician to see him in the hospital, and we were evaluating his medical status and taking x-rays he was recalling, recalling the events that had preceded what had happened, apparently, back in his dwelling.  These were running through his mind, he was trying to figure out why -- this is the way I interpreted -- why this had all happened to him.  He also answered some questions, specific, that we asked him, whether he had been unconscious.

COL ROCK:  Excuse me.  You mentioned we.

WITNESS:  Yes, Doctor Straub and myself.

Q  Doctor, specifically now would you tell us what Captain MacDonald said?
A  Well, when he initially came in he, as I say, running through the events that had occurred. He said he was awakened from sleep, I believe he was in the living room sleeping on the sofa.  He said that somebody had -- he was awakened by somebody beating on him and his wife screaming, and said that there was a blond female, blond haired female holding a candle, saying something like "Kill the pigs."  And there were three other males, one of them being a Negro.  Somebody had a -- some sort of a sharp instrument, either a knife, something in this order, and someone with apparently a club of some sorts.  He recalled that somebody was jabbing him with this sharp instrument, whoever it was or whatever it was; he was dancing around trying to avoid them, and that he did grab this instrument in his hand.  I don't recall which hand.  He recalled his wife saying something to the effect "Why are they doing this to me?"  Then he said he -- I did not get the exact timing interval.  I didn't quite understand that at the time, but he said that he examined his children.  He said that they didn't have any pulses and he said that he went on to his wife.  There was the -- she had a lot of blood on her.  He said she looked very bad and that was his statement, "She looks very bad."  He said, "Be sure to tell the MP's and the CID I pulled a knife that was in her chest out."  He mentioned something about an individual that he'd seen named Badger, he'd seen him as a physician pertinent to drug abuse, I believe LSD, he was an acidhead.  He was trying to see -- trying to see if there could be any, to himself, to see if there was a correlation between this man and the group that was apparently in his dwelling.  He mentioned something about his wounds, that he's seen a little bubbling from his wound in his right chest.
Q  Sir, did you ask Captain MacDonald, or did he say anything about his possible loss of consciousness?
A  Yes, we asked him, trying to again get the time interval, and he was unable to tell us whether he was unconscious or not.  He said, "I just, I don't know if I lost consciousness or not."
Q  Now, doctor, can you tell us how many wounds Captain MacDonald had?
A  He had five areas of wounds.  Some of them multiple.  He had a wound on his forehead, wound in the right chest, wound of the left upper quadrant of his abdomen, wounds on his left pectoral area and wound of his upper arm.
Q  With respect to the wound in the right chest area, would you tell us please, the nature and extent of that injury?
A  Well, it was a linear wound, transverse in direction about one centimeter long.  It had a small amount of blood coming from it.  As I said previously, there was some bubbling from it.  After having taken x-rays we knew that it was a penetrating wound of the chest, producing a pneumothorax.
Q  Sir, do you have any idea how deep this wound was?
A  Well, we didn't probe it; we can't say the exact depth.  You can estimate his body build and the average thickness of the intercostal -- taking Captain MacDonald's build and just estimating the thickness of the intercostals musculature, the fact that he's not an obese individual, it's probably about 5/8 of an inch in depth, at least, to go through the -- go through the chest wall.

MR. EISMAN:  At least, doctor?

WITNESS:  Yes, at least.

Q  With respect to the laceration to the left upper arm, would you tell us about that, please?
A  That was a superficial laceration through the skin only, not to the subcutaneous tissue.  I don't recall the exact length of it.
Q  Now with respect to the wound of the abdominal area, what was its relative severity and description?
A  The wound in the left upper quadrant of the abdomen was also superficial wound.  It went to the abdominal musculature rectus.  Again, we didn't probe it, we don't know the exact depths, but it did not cut any muscle fibers.  It was a laceration type wound.
Q  Was it necessary to suture this wound?
A  No, it wasn't.
Q  What was the extent of the injury to the head, doctor?
A  The injury to the head was a -- a -- apparently a blunt type of injury, a little bit to the midline of the forehead.  It -- was some swelling probably of moderate degree with some ecchymosis and slight skin abrasions.  There wasn't any depression that could be palpated.
Q  Did you have occasion to check Captain MacDonald's entire head?
A  Yes, I believe I went over his head probably rather rapidly, but there wasn't any evidence of any significant other injury at the time that I examined him in the emergency room.
Q  Did you find any neurological abnormalities associated with injuries to the head?
A  No, I didn't.
Q  With respect to the wound in the left upper quadrant, can you tell us what it was?  What it consisted of.
A  The upper left quadrant of the abdomen?
Q  No, I am talking about the shoulder area, or the pectoral area?
A  At the wound site there were four puncture type wounds or punctuate wounds along a tract, a linear track, and I believe it was in this direction, toward the apex of the shoulder.  They were paced rather evenly about two to three millimeters apart.  We did not probe these for depth and a -- we took their significance as minor after having seen the x-ray.  We had no pneumothorax there; in fact they would probably not allow an air leak in themselves, a chest leak.
Q  Now, excluding the wound in the right chest area, what was the severity of the injuries to Captain MacDonald?
A  They were all superficial type of injuries.
Q  What was the relevant severity of the wound in the right chest area?
A  That -- the wound in the right chest area was of enough significance to produce a pneumothorax.
Q  How much of a pneumothorax was noted?  Do you know that?
A  Twenty percent pneumothorax, 15 to 20%.  It's hard to be specific.
Q  Was Captain MacDonald suffering from shock at the time you saw him?
A  No, he was not suffering from shock at the time I saw him.
Q  Do you know whether he was suffering from shock prior to that?
A  I cannot say for an absolution.  I had no evidence at the time that he had been in shock.
Q  Did you determine whether Captain MacDonald needed blood transfusions?
A  Yes, we got a hematocrit on him and I believe his hematocrit was 45%.
Q  Would you tell us what that is and what it means?
A  Well it means that the relative amount of red cells in a given amount of -- given blood, whole blood, is 45% of the volume, and somebody with rapid blood loss, very rapid blood loss, this has no chance to compensate by replacing the fluids into the intravascular system; and somebody with a slow blood loss it's significant because this would be delusional phenomena and the hematocrit will be reduced.
Q  What was the practical meaning to you of this hematocrit in the sense of blood loss?
A  Well, at the time there were no overt signs of rapid bleeding, and this I felt this hematocrit had significance.  It was a valid hematocrit pertinent to his status.
Q  And it was based on this that you did not have blood transfusions?
A  That's right.
Q  At the time you saw Captain MacDonald that morning, what was his overall medical condition?
A  He was excited, coherent, alert to what was occurring to him at the hospital.  His vital signs were stable and I don't feel he was under any -- at the time -- that he was in any great danger, medically, physically.
Q  Can you characterize his condition in one or two general terms?
A  I would call his condition at the time I saw him good to fair.

CPT SOMERS:  Your witness.

MR. EISMAN:  At this time, I'd like to have marked as Accused Exhibit --

COL ROCK:  This is A-28.

MR. EISMAN:  This is a copy of the final hospital reports of Captain Jeffrey MacDonald as provided to the defense by Womack Army Hospital.

COL ROCK:  Accused Exhibit A-28 will be accepted, as a certified true and correct copy of medical records of Captain Jeffrey R. MacDonald.

CPT SOMERS:  Sir, before that's done, I think that the whole of that exhibit is not pertinent to Doctor Jacobson; if it's being used with reference to Doctor Jacobson, he didn't have connection with the whole exhibit.

CPT BEALE:  Captain Somers, if in fact the complete file of Captain MacDonald's medical records have any bearing on this hearing at all, then perhaps you can state to the investigating officer that some portions of this don't have, so it doesn't make any difference whether Doctor Jacobson has peculiar knowledge about some of this, or not.  Colonel Rock, if in fact, these are relevant, would have the medical records of the accused and the treatment he received.  There's no sense in having them come in piecemeal.  So they will be received as requested.

MR. EISMAN:  I will present a copy of this, sir, so the witness can refer to this during my questioning.

CPT SOMERS:  May I see that?

MR. EISMAN:  I'm sorry.  I thought you would have it in your file.

CPT SOMERS:  I'm not certain whether I do or not.

MR. EISMAN:  Perhaps the prosecuting attorney would like to have a chance to read the medical records, and instead of us waiting, we could have a short recess.

CPT SOMERS:  Counsel for the government is handing the exhibit back.  Thank you, counsel.

MR. EISMAN:  At this time may I inquire if there is any questions as to the validity of these records, so that we might settle that question?

CPT SOMERS:  None was interposed.

MR. EISMAN:  At this time I would ask the investigating officer to request of the government if they have in their possession any other medical records, to furnish them to the investigating officer, with a copy to counsel for the accused, because we have reason to believe that when these records were furnished to us, there might have been other records.  We are not certain of what they pertain to, but there were no records regarding the treatment of Doctor MacDonald at the hospital which we were not furnished, and we have directed this to the government's attention on an earlier date.

CPT SOMERS:  It is within my personal knowledge that the hospital certified to the defense that they were given the entire records.  Is the defense questioning the good faith of the hospital?

MR. EISMAN:  We are not questioning the good faith of anyone.  We just have reason to believe that all the records --

CPT SOMERS:  Then I suggest that you put your evidence of that on the record.  You have certification from the hospital that the records are complete.

MR. EISMAN:  Well, these are medical records, but there might have been other records regarding the treatment of Captain MacDonald.  It doesn't say that these are complete.  This is a true and correct copy of the medical records, not saying whether it is complete or not.

CPT BEALE:  Okay, hold on.

MR. EISMAN:  Captain Douthat is now reviewing his file to determine --

CPT BEALE:  Captain Somers, could you state to the best of your knowledge that these records that you've just read through are the complete medical records of the accused?

CPT SOMERS:  No, I didn't.  I said that to the best of my knowledge, the hospital has certified that it gave the defense the complete medical records.  I can't be sure that what he is offering here contains each and every page of the records, that it has in its possession the complete medical records.

CPT BEALE:  To your knowledge, are there any other medical records pertaining to Captain MacDonald that has not been furnished to the defense?

CPT SOMERS:  No, that's what I am saying.

CPT BEALE:  Very well, your request is denied at this time.  If you can come forth with some evidence that there are other medical records that have not been furnished, you may bring it to the attention of this hearing.  We'll take that up at that time.

Questions by MR. EISMAN:
Q  Doctor Jacobson, when did your tour of duty begin on the morning in question?
A  It began early afternoon before that, 1630 hours.
Q  And what would your normal tour of duty have been at the hospital?
A  Until approximately 7 to 7:30, that morning.
Q  Which would be how long a shift is that?
A  Let's see, it runs about 16 hours.
Q  Sixteen hours?  Now, as a physician and speaking as a qualified expert having served in hospitals, during that time that you are available at the hospital, do you have opportunities to rest?
A  Yes, periodically.
Q  Assuming that you are in an emergency situation at all times, this would be normal procedure for doctors who work lengthy shifts at the hospital?
A  That's for the surgical residents only, as a matter of fact, and the medical officer of the day.
Q  And if you were working an even longer shift, actually, rest would be necessitated to keep your efficiency at a good level. Wouldn't that be correct?
A  I suppose.
Q  Now you had been working from the time you described until Captain MacDonald came in.  I believe that you had opportunity to rest immediately prior to coming in.  Is that correct?
A  Yes.
Q  As a matter of fact when the Captain was brought into the hospital, you were -- your rest was disturbed?  Or not disturbed, but at least you were informed of this and immediately you got down to the emergency room.  Is that correct?
A  That's right.
Q  And when you got down to the emergency room, what was the scene you originally saw, if you can describe it to the investigating officer, with regard to Captain MacDonald?
A  Well, he was in the room that we have in the posterior part of the emergency area; we usually reserve it for cardiac arrest and people who are in bad condition, people whose status we are -- we do not know at the time.
Q  Would it be fair to say at that time Captain MacDonald was in such a condition and that's why he was placed in that area?
A  No, I don't think so.
Q  Well, were you aware of his status or what the extent of his injuries were at the time you got there?
A  Well, the fact that he was sitting, was able to sit up by himself and to talk without being short of breath or seemly quite alert, although excited, would indicate at the time that there was no real emergent problem.  As I said, we checked his vital signs at that time too.
Q  The person who made the determination in that area wasn't you, sir, because you weren't there?
A  That's right.
Q  That would have been another doctor or some of the hospital personnel?
A  That's right.
Q  Now you've described the Captain talking or describing what went on.  Was he speaking with you, or were you questioning him, or having conversations directly with him, or what was the exact manner in which you were speaking, as you can recall?
A  Well, much of his conversation was spontaneous.  As I said previously, he was, I believe, trying to understand what had happened, just a -- immediately prior, going over the things in his mind, trying to -- trying to put things together to make some rational judgments on it.
Q  But you think that under the circumstances, knowing what you know about his injuries, that that would be a normal reaction in a person in the condition of Captain MacDonald would have been in?

CPT SOMERS:  I object.  I don't think that's a conclusion he can draw as to any individual -- he had a specific conclusion.
Q  Well, the specific individual of Captain MacDonald.  Do you think that under the circumstances, knowing his condition, knowing the injuries were of such a nature which would not have prevented him from speaking, his vital signs would not have been affected, and knowing that he has suffered certain trauma and his family -- he knew that his family had been injured seriously at least, that under the circumstances the way he was speaking was consistent with the conditions you saw him?

CPT SOMERS:  I object.

CPT BEALE:  Don't answer yet.

CPT SOMERS:  It requires the judgments that are not medical and it is far too conjecture for the witness.

COL ROCK:  Your objection is sustained.

CPT BEALE:  Move to another area, please.

MR. EISMAN:  At this time I believe I have an offer of proof because I believe the government offered this witness for some reason to show that Captain MacDonald was not seriously injured and there was something wrong, and I think they are later going to allege that his injuries were self inflicted, and that he knew what was going on all the time.  What I am trying to get from the doctor who was called as the expert by the prosecution, was, under the circumstances, accepting all these facts, would be the manner he would be speaking in be consistent with the injuries which he sustained; or wouldn't it necessarily, if he was injured by someone else, would be speaking differently; or would this be an indication of the fact that he had injured himself, or would this just be normal under the circumstances, under the medical circumstances; and that's what I am trying to establish because the government somehow has tried to say that the man was having a normal conversation as if nothing had happened to his family.  That's the basis upon which I've asked the question, and I think it's a valid cross examination of this witness who has been offered by the prosecution.

CPT BEALE:  The objection is still sustained.  Move to another area.

Q  If you must, refer to your records to recall, because they are extensive.  While Captain MacDonald was in the emergency room or in the x-ray room, was he given intravenous fluids? And if you wish, I think we can direct your attention to the appropriate page if necessary.

CPT BEALE:  Mr. Eisman, if I may suggest, the witness can answer the questions without referring to these --

MR. EISMAN:  Page 32 might give you an indication.

A  Right, he was given -- started on Ringer's lactate.
Q  What is that, doctor?
A  That's a balance salt solution to replace the fluid portion of your blood.  We use it relatively routinely.
Q  You wouldn't use it if someone came in with a cut finger, but you'd use it in this type of an emergency situation?
A  Yes, we use it any situation where there is a question of the person's status.
Q  Right, and as the Captain was talking to you, described some of the details regarding the incident, but from your recollection, what was the Captain's primary concern?  Was it describing the assailants or what happened or trying to figure out, or was it something else which you felt was the most important thing in his mind?

CPT SOMERS:  I object.  I don't believe that he can decide what was the most important thing on the mind of someone else.  He can testify as to what the man was saying.

CPT BEALE:  Okay, his objection is sustained, and that's true, you can ask him direct.

Q  What other things was Captain MacDonald concerned about, other than why this happened to him?  What did he say?
A  Well, he said multiple times, he said he checked his wife and his children for their status.  Multiple times he asked why -- why his wife and children hadn't been brought in.  "Why aren't they here, yet?"  "How come they're so slow?"  "The ambulance ought to be here by now."
Q  Did he make any efforts to do anything regarding this other than to speak, if you can recall?
A  Yes, he did.  We were a bit concerned that he was going to get off the litter that we had him on and attempt to do something about it.  I don't know what he could have done, but to get up.
Q  What was your medical treatment, or your treatment that you would normally do in a situation like this?
A  Well, we just kept talking to him and just avoid the subject of his family, attend to things, to his own status, and attempt to point our questions in areas to escape and keep his mind off.
Q  And that was probably one of the reasons why, instead of continuing to discuss his concerns for his family, he got into areas of speculation as to why this had happened and how it happened.  Is that correct?  Because you or the other people present attempted to direct his attention away from his concern for his family.  Isn't that correct?

CPT SOMERS:  I object.  He's asking the witness to draw a conclusion as to what was going through the mind of another person.

MR. EISMAN:  I'm not asking him to draw a conclusion as to what was going through his mind, but I am asking what they were doing and why the conversation resulted in the manner in which it did result.

CPT BEALE:  Objection is sustained.  Move to another area, or rephrase your question.

Q  So that Captain MacDonald, in regards to many of the things which you've described previously, under questioning by Captain Somers, was being directed at these other areas by the people in the emergency room so that he would not get up off the litter, as you felt he might.  Is that correct?
A  That's right.
Q  Now at the time you first saw him, were you aware of the seriousness of the injury to his right chest?
A  We were aware that he had an injury to his right chest.  When I saw him initially he had a Vaseline gauze over this area and it at the time was a rather innocuous looking wound.  Later, in the x-ray department, we did see some bubbling from the wound in the right chest, and I x-rayed -- exploratory film showed pneumothorax.
Q  Doctor, I am going to show you a picture in a book which is entitled Physical Diagnosis and ask you whether or not the diagram at the top of page 216 is what this portrays in the book.

(The diagram was shown to the IO and Captain Somers.)

CPT SOMERS:  Is the defense offering this as an exhibit?

MR. EISMAN:  No, just for the instructional value to the investigating officer.

CPT SOMERS:  Where -- well, since it has instructional value, perhaps it should be presented as an exhibit.

MR. EISMAN:  If you'd like to present it after I've done my case, you may have the medical textbook and if the investigating officer would like to have it --

COL ROCK:  I'll rule after the witness has completed his testimony.

Q  Doctor I show you page 216, figure 127, which is a diagram of a body, which describes the figure -- what does this figure describe?
A  Well, it's labeled pneumothorax with a collapse of the right lung.
Q  Now, in your medical experience, and knowing what you know about the case as you've diagnosed it, in this perhaps you could tell us what percentage of collapse that would be portraying, if you could?
A  That's probably around -- oh, 60 to 70 percent there.  That's very difficult to get an absolute value, because the capacity, as the lung collapses, it can always collapse down to a certain point.  In 100% collapse, you would still see some lung there. It still is completely collapsed, so I'd say this is about 60 to 70 percent.
Q  All right, now during your course of treatment of Captain MacDonald, what was the maximum estimate which you gave as being the collapse of his lung?
A  Twenty percent.
Q  Maybe I'd better ask you -- on page 5 of the medical records, there is an indication "8602." Could you tell me who wrote that, if you can, where it says "traumatic pneumothorax, 40% right side."
A  That's probably Doctor Gemma.
Q  And who is Doctor Gemma?
A  Doctor Gemma is chief of the General Surgery Service.
Q  And as far as the surgical care of Captain MacDonald it would have been Doctor Gemma who handled the surgical procedures.  Is that correct?
A  I don't understand.
Q  You were working with Doctor Gemma regarding the surgical procedures regarding Doctor MacDonald that morning.  Is that correct?
A  Yes, later on in the morning.
Q  And when you first saw Doctor MacDonald, Doctor Straub was the radiologist who made the initial reading from the x-ray of the extent of the collapse.  Is that correct?
A  That's right.
Q  And Doctor Straub had previously testified, after reviewing his notes, that there was a 20% right pneumothorax when he viewed the films in the emergency room.  Now would you disagree with that diagnosis at that time?
A  No.
Q  And would your diagnosis be substantially the same from what you knew of the case, after consulting with Doctor Straub and Doctor Gemma at that time?
A  Well, Doctor Gemma was not there at that time.
Q  Had he left already?
A  He had never been there.
Q  Oh, I see.  So at that time you had no way of knowing what the extent of the collapse of the lung was regarding --
A  No, Doctor Gemma did not come into the case until later on in the morning.
Q  And when did Doctor Gemma come into the case, if you recall?
A  Well, I can't recall the specific time.  I would imagine around 7, 7:30.
Q  And were you present?
A  Yes, I was.
Q  And did you have occasion to consult with Doctor Gemma regarding the condition of Captain MacDonald?
A  Yes.
Q  And at that time or shortly thereafter, or sometime in that area of time, did you have occasion as a result of your conversation to arrive at the conclusion that surgery was necessary in this case, some type of surgery?
A  Yes.
Q  All right, now what was the surgery which was decided by you and Doctor Gemma after your consultation?
A  Closed tube thoracotomy on the right side.
Q  Could you please in explain in laymen terms for myself what you mean by a closed tube thoracotomy?
A  Well, it's simply making an incision in the skin, through the chest wall and placed a tube in the appropriate chest cavity.
Q  Now a tube thoracotomy are the standard or routine type of treatment for a pneumothorax of this type.  Wouldn't that be correct, doctor?
A  Yes, at the later point it was, when he had gone to 40%.
Q  Now we had occasion to ask Doctor Straub this question and I'd like to ask you the same question at this point.  Would a person who inflicted a pneumothorax on himself know the final medical consequences of such a wound when he inflicted it?

CPT SOMERS:  I object.  We don't know what sort of person he's talking about.  Again he is asking us to draw a conclusion, which I don't believe that we can draw or this witness can draw.

MR. EISMAN:  This was the same question.

CPT BEALE:  The objection is overruled.  Answer the question, doctor.

MR. EISMAN:  Do you want me to repeat the question?

WITNESS:  Would you please?

Q  Would a person -- and I'll add another detail which might make -- make it more palatable to the prosecution -- would a doctor who inflicted a pneumothorax of this nature on himself know what the final medical consequences of that wound would be at the time he inflicted it, or could he know?
A  Not this type of pneumothorax, he couldn't.
Q  Now you've described a tube thoracotomy for us.  Now, although this type of a surgical procedure would be probably described as routine for this type of thing, in other words, it is not a major surgical procedure, isn't it a fact that there are many complications which might result from such surgical procedures?
A  Yes, there are a few.
Q  I'm not asking you what they are.  I'm just asking you, are there complications?
A  Yes.
Q  As a matter of fact, isn't laceration of the lung a fairly common complication or hazard of such a surgical procedure and one which you could not foresee or give a definite answer before doing it as to what would occur, or whether or not that laceration of the lung will occur when the tube was placed in the body?

CPT SOMERS:  I object.  It's irrelevant and there's been no showing of any evidence of a laceration of a lung.

MR. EISMAN:  The relevancy of this question goes to the entire thrust of the prosecution's case.  There couldn't be anything more relevant than the seriousness of the condition of Doctor MacDonald which has been placed in evidence by the prosecution, and I think it's incumbent upon this hearing to know all of the possible and medical complications and results and unknown factors which a person who is alleged by the government, or will be alleged by the government to have inflicted these wounds.  Not in hindsight as to how his condition turned, but before it happened, and I think Doctor Straub being -- Doctor Jacobson being the surgeon, I think it's quite competent to tell us, and I think he will be able to tell us the perspective view of this case, not the hindsight view that Captain MacDonald was fortunate enough to live, and that the relevancy of this line of questioning.

CPT BEALE:  Well, counsel there is many areas that, medically speaking, the doctor, I am sure, could encounter and testify to.

MR. EISMAN:  I mean the normal complications which could arise from this particular operation.  Not the fact that he might be rolled down the hall and be hit by a bolt of lightening.  I'm saying when a person puts a chest tube in that the normal dangers are as being put in, and that's the basis upon which -- that's the only area I will get into in my cross examination.

COL ROCK:  Can counsel ask questions that are in more simple fashion, such as what percentage of insertions of this type result in complications?

MR. EISMAN:  Well, I'm not certain whether or not the doctor would have those facts.  I'm just asking from a medical standpoint the dangers which the surgeon faces and which the patient faces when this surgical procedure is performed, and I think it's probably one of the most relevant lines of questioning that we'll have of this, of the medical witness regarding Captain MacDonald which the investigating officer will have to consider in reviewing the case at a later time.

CPT SOMERS:  It is easy enough to find out if the witness can answer the simpler question that the investigating officer wants simply by asking with reference to complications from a chest tube.  I still contend that this is relevant.

MR. EISMAN:  The line of questioning will not take too long.

CPT BEALE:  Your objection is sustained.  Would you rephrase your question or move to another area.
Q  Well, doctor, are the normal hazards of a -- do the normal hazards of a tube thoracotomy including the following --

CPT SOMERS:  I object, same basis.

MR. EISMAN:  This is one question, and then he can answer the question yes or no, and that will end this line of questioning.

CPT SOMERS:  I object on the basis of relevancy.

CPT BEALE:  Counselor, we've already told you to move to another area, so we don't deem that question to be proper.
Q  To your knowledge of the case, after reading the medical records, how many of these surgical procedures were required of Doctor MacDonald?
A  Two.
Q  And what would be the reason for two procedures being required as opposed to one? Would that be because the first procedure did not satisfy the physicians and they felt that in order to insure the patient's welfare that another should be done?  Would that be the proper interpretation of that?  Or would there be another one?

CPT SOMERS:  I object.  The counsel is permitted to lead the witness, but when he leads the witness with a question that is so long and so involved I feel that this is objectionable.

MR. EISMAN:  Well, you might not understand the question, but the doctor hasn't said that he doesn't understand the question.  He's able to understand the question, and I don't think you can object to it.

CPT SOMERS:  I just did.

COL ROCK:  At this juncture, we will take a recess and I will make a ruling upon reopening this hearing.

(The hearing recessed at 0955 hours, 17 July 1970.)

(The hearing reopened at 1022 hours, 17 July 1970.)

COL ROCK:  The hearing will come to order.  Let the record reflect that the parties who were in attendance at the closing are now in the hearing room.  I would like to make two announcements or rulings.  The question was raised, I believe for the government, as to the necessity for introducing as an accused exhibit a certain diagram contained in a medical volume which was used by counsel for the accused.  In reviewing this request I see no need for that to be introduced as evidence.  However, I have cognizance of the appropriate diagram. Secondly, at the recess a question was objected to by counsel for the government, the questioning being raised by the counsel for the accused to the witness -- a rather lengthy and detailed question again coming from a medical volume.  That objection by counsel for the government is sustained.  Please continue, counsel, with your questioning of the witness.

MR. EISMAN:  If I may ask, was the objection sustained?

COL ROCK:  The objection was sustained.

MR. EISMAN:  Because of the length of the question, or because of the matter that was contained?  In other words, can I rephrase the question and ask in a different manner?

COL ROCK:  Principally it was the length, though you had not competed all of your question.  You have the prerogative of attempting to reintroduce the question by some other method if you so desire.  I am interested in simplicity in order that I, as a layman, can understand the questions.  Sometimes they tend to become rather --

MR. EISMAN:  I will attempt to have my questions more simple.

Q  Is pain one of the normal problems associated with thoracotomy?
A  Yes.
Q  And could you, please, doctor, explain to the investigating officer the particular problems of pain in a thoracotomy?

CPT SOMERS:  I object.  That's irrelevant.

COL ROCK:  I would like to hear the answer to determine the relevancy.

A  Would you rephrase that?
Q  Certainly.  Certainly pain is attended to any surgical procedure normally, wouldn't it, Doctor, if it was a cutting of the body, there normally would be some type of pain, wouldn't it?
A  That's right.
Q  Now with a thoracotomy, is there some particular problem regarding pain and a thoracotomy which is particularly connected up with that surgical procedure?

CPT SOMERS:  I object again.  It's irrelevant.  It doesn't have anything to do with the physical condition of Captain MacDonald.

MR. EISMAN:  I am trying to find out if this is the normal result of a thoracotomy.  Is pain a normal result of a thoracotomy?

CPT BEALE:  Wait a minute now.  Captain Somers, now the doctor has testified he did perform such a surgical procedure on Captain MacDonald and as to whether or not this is accompanied by pain or what the medical ramifications of it are, I think it would be relevant at least to that extent.

CPT SOMERS:  Of course, we respectfully disagree, and we do object.

CPT BEALE:  Well, your objection is overruled.

Q  Doctor, is there a particular pain or problems with pain which in particularly ascribe to a thoracotomy, the nature of which was performed in this case?
A  Yes. We attempt to reduce the amount of pain in the chest wall when we introduce the tube by using a local anesthetic, such as Xylocaine or Procaine, as the dentist would use, but once you push the tube in the chest cavity it irritates the pleura, either the inside lining of the chest cavity itself, or the outside lining of the lung, and it is uncomfortable.
Q  And also in the introduction of the, during the procedure of a thoracotomy, isn't it also a normal consequence or a normal complication which you much look for in that there's possibility of a subcutaneous emphysema occurring?

CPT SOMERS:  Objection, it's irrelevant.

COL ROCK:  This hearing will be recessed briefly.

(The hearing recessed at 1027 hours, 17 July 1970.)

(The hearing reopened at 1045 hours, 17 July 1970.)

COL ROCK:  The hearing is called to order.  The parties in attendance at the time of recess are currently present.  I'd like to remind you, doctor that you are still under oath.  There was an objection that had been brought before the hearing recessed by counsel for the government. A ruling has been made.  Would you proceed, Mr. Legal Advisor?

CPT BEALE:  The objection by counsel for the government is again sustained on the basis that the relevancy of it is not quite apparent at this particular time.

MR. EISMAN:  I'll rephrase the question.

Q  Aren't part of the surgical complications in this type of surgical procedure -- do they also include subcutaneous emphysema?  If they do, could you explain to the investigating officer what that means?

CPT SOMERS:  It's irrelevant, same question.

CPT BEALE:  Counselor, I believe I agree with counsel for the government.  I believe that's substantially the same question.

MR. EISMAN:  Oh, I thought I asked a longer question.

CPT BEALE:  Well, again the relevancy does not appear.

Q  Are infections and related type of surgical complications attended to this type of operation, or can they be part of the postoperative complications?

CPT SOMERS:  Objection.  It is irrelevant.

CPT BEALE:  I think the best thing you can do is try to move to another area, because this particular area does not, again, appear to be relevant to these proceedings.

MR. EISMAN:  Well, the relevancy -- let me make an offer of proof so far as the relevancy.  If a medication doctor self-inflicted these type of wounds on himself, he would know, as opposed to a layman, what the medical complications of his injuries would be.  It is necessary, I think, in this case, since the injured individual who is alleged by the government, or going to be alleged by the government to have done this to himself what in a particular knowledge, with which the investigating officer would not deem a layman.  In other words, had you or I done this to ourselves we wouldn't have known these things, but the relevancy is to show that a man in the position of the defendant in this case, would know these things, and then it would be easier for the investigating office to arrive at a conclusion, after knowing these things would he be likely to do this or would he not be likely to do this, or more to do this; and I think since the investigating officer is not a doctor, and the witness is, and as the defendant is, then I think relevancy for that purpose, not to clutter the record with possibilities or things like that, but in, but in looking at the case from the time that it happened, not in retrospect but at the time that -- according to the theory of their case, I assume the theory of their case will be that Captain MacDonald allegedly inflicted these wounds on himself.  That's the relevancy.  I'm not doing this just to clutter the record.

CPT BEALE:  Well, the witness has responded to your question to the fact that a doctor will know, a person would not know what the -- what the extent of the injuries were, if they were self-inflicted, and that, I think, itself answers the question.

MR. EISMAN:  That question was what the final medical conclusion, or what the medical complications were, final medical results would be.  That was what the question was.  Now I am in the area of attempting to prove that if a doctor did this to himself, he would know of the possible complications which could occur along the line, and then it would be for the hearing officer to determine, knowing all these things which the hearing, at this point, doesn't know.  Is it more likely that he would have done it or more likely that he wouldn't have done it?  Being a layman myself, or the hearing officer, wouldn't know these things.

CPT SOMERS:  Well, the question simply put of the witness is whether Captain MacDonald would know these things, and this witness cannot answer that question.  It is irrelevant and objectionable now on two bases.

CPT BEALE:  Counsel, the objection is sustained and we will move to another area.

Q  Doctor, you've described the wound itself as being, I believe, in the 7th intercostal space.  At this time I'm going to show you a copy of a book known as, I think popularly known as Gray's Anatomy.  First I will show it to the investigating officer, and to the counsel for the government.  Doctor, I'm first of all going to show you a copy of this book.  Do you recognize this book?
A  Yes.
Q  And does this book have any particular meaning to you being a doctor with regards to its validity?
A  Yes, this is relatively standard text used for gross anatomy in the course of medical school and there are multiple editions of it.
Q  Now, doctor I am going to ask you to look at the diagram contained on page 6 and ask you to indicate the area which you have said -- but before you do that, I want you to refer to your medical records which you have before you, on page 6.  I see you have indicated which says one centimeter stab wound in the 6th intercostal space.  Does this refresh your recollection as to what your opinion was as to the location of the stab wound?
A  I believe I thought it was in the 7th intercostal space.
Q  Having an opportunity to reflect on the report which you have now, do you think that that number might have stuck in your mind because that was where the chest tube was placed? Is that possible?
A  No, I believe I put in my physical exam, page 8 --
Q  Yes, here it is here.  Is that your handwriting?
A  Right.
Q  And that says 7th ICS, which means what?
A  Intercostal space.
Q  Okay, fine, now could you please indicate with the blue marking pencil the place where you believe this would be on the diagram?

CPT SOMERS:  Excuse me, doctor.  If we are going to mark on this as an exhibit for the edification of the investigating officer, then I definitely request that it be marked by the accused.

MR. EISMAN:  I will have it marked.

COL ROCK:  And introduced in evidence, or a copy thereof?

MR. EISMAN:  Yes.

WITNESS:  How do you wish this marked?

COL ROCK:  Circle the area.

WITNESS:  The space?

MR. EISMAN:  Right.

Q  Now could you sign your name here, doctor and the date also?

(Witness complied.)
Q  Thank you very much.  If I may at this time ask that this copy of Gray's Anatomy be marked as Accused Exhibit -- at page 68, and ask if at this time there would be any objection from the government or the investigating officer if we could have photo copies made of this?

CPT SOMERS:  None by the government.

MR. EISMAN:  And although it would not show the colors, I think the same -- or possibly we could wait to see what the photo copies look like.

COL ROCK:  Accused Exhibit 29 is a copy of page 68 from the book entitled Gray's Anatomy, 28th edition.

MR. EISMAN:  I will have copies made of this page, and if they are agreeable to counsel for the government and the investigating officer, we might be able to possibly just have them -- or the single page available at that time.

Q  Now doctor, you have described the wound that -- as a stab wound of approximately one centimeter in length.  Is that correct?
A  Yes.
Q  And were you able at any time to determine the depth which -- in inches -- which the wound finally reached?
A  No.
Q  Were you able to probe it or would that be a normal standard thing to do of a wound like that?
A  No.
Q  Now you've testified that the -- I believe my recollection was -- that the minimum depth which, in your opinion, would -- the wound would have to have been, would be 5/8ths of an inch to penetrate the tissue and whatever as involved in a lung.  Is that correct?
A  Yes.
Q  In addition to a lung being under, between the -- I withdraw that.  In addition to the lung in that area, what other vital organs are portrayed in that diagram in the 7th intercostal space?
A  Well, the diaphragm is in this area.  It only shows part of it.  The liver is in this area.
Q  Now, doctor, is it possible to know, except under clinical conditions, the exact location, not only in height but in position, between front and back of the chest as to where the liver is exactly located at any given time without being able to look at that place at the time?
A  Well, you can -- you mean the position of the liver?
Q  Right, where it is sitting at given moment in regards to the -- to the -- to that section of the lung.

CPT SOMERS:  Objection, that's irrelevant.

CPT BEALE:  The objection is overruled.  You may answer the question, doctor, if you can.

A  We use percussion, utilizing difference in the sound by -- as a method to indirectly evaluate the position of the liver, the size of it.  It's a -- it's relatively good in some people, and in other people it is almost useless.
Q  Well, by using that method, would you be able to say at this time, sitting there, exactly in inches from the outside of your chest, at the 7th intercostal region, where your liver is?

CPT SOMERS:  I object.  It's irrelevant.

Q  In reference to the depth of it?

CPT BEALE:  Just a second counsel.  Again, your objection is overruled.  I believe I see the point he is driving at.  Can you answer that question, doctor?

A  I couldn't give you an exact answer in inches.  I could give you a rough estimate.
Q  But you could not, assuming you were inflicting this type of wound on yourself, know in advance whether or not you'd be touching the liver?

CPT SOMERS:  I object.  The question is irrelevant.

MR. EISMAN:  I withdraw that question if there is any problem.  I think the wording of it might have been -- but --

Q  Now, doctor, if you, as a medical, medically trained person intended to inflict a pneumothorax on yourself, would you do it in the area of the 7th intercostal space, or would you have any other area of the body which would be preferable to that?

CPT SOMERS:  I object.  Now what this witness would do in such a situation is not relevant here.

CPT BEALE:  Well, the point is, counselor, that -- of course, it is not apparent to us that this is, in fact, the prosecution's aim to show that these wounds were self-inflicted, but as an expert witness in this particular area, being a doctor, and self-inflicting wounds, I can see where it does, perhaps, have some relevancy. I don't know that that is in fact your position.  If it's not, you can so state, then of course it would be irrelevant.

MR. EISMAN:  As a matter of fact, if the government would state at this time that they do not intend to allege that Captain MacDonald inflicted these wounds, I will withdraw the question and release the witness.

CPT SOMERS:  The government intends to make no such statement.

CPT BEALE:  Okay, then, very well.  Your objection is overruled, and doctor, if you can, you may answer the question.

WITNESS:  Would you repeat it?

Q  If you were going to inflict a pneumothorax on yourself, would you inflict it in the area of the 7th intercostal space, or would you chose some other area?
A  I would choose some other area.
Q  And why would you do that?
A  Well, as is already indicated that there are some vital structures in this area that could make the condition much more serious.
Q  Getting away from the particular injury, one of the areas of injury which you've described was puncture wounds of the left pectoral region.  Could you indicate to the Colonel where this is on yourself, just by pointing to the approximate area?
A  This is the muscle in this area that's relatively prominent on the chest, right in here.
Q  And describe, I believe four puncture wounds which you recollect as having been in that area -- that you saw -- is that correct?
A  That's correct.
Q  Now your testimony that there were no other of that type injury, or at this time that is all you can recollect under the circumstances?
A  You mean no other puncture wounds?
Q  Of approximately superficial nature which you might not have noted because of the emergency nature of your treatment?
A  You mean any other place on the body similar type puncture wounds?
Q  Right.
A  I could not say for sure that there were no other puncture wounds.  They aren't very large, sir.
Q  And would you say these were your primary concern and the emergency treatment which you were attempting to administer would be the most serious type of injuries?
A  That right.
Q  Now you've stated that there was at the time, because of the nature of the treatment which the doctors were performing on Captain MacDonald that the normal thing would be not to probe the puncture wounds.  Is that correct?  Unless there had been some indication of the same type of bleeding as was coming from the lung.  Is that correct?
A  Yes, there was no indication at the time to probe these.
Q  And therefore, you couldn't estimate whether or not the depth of these wounds were anything less that what would cause a pneumothorax?  Do you understand my question?  In other words, assuming there were puncture wounds of the left pectoral region, which did not cause a pneumothorax or go into any other vital organs, is there any way for you to say at this time whether they were sixteenth of a inch deep, or a quarter of an inch deep or anything up to the point it would have punctured a vital organ?
A  No.
Q  Is it possible that one or more of these puncture wounds could have touched the lung and the lung could have healed itself if it were not a serious puncture?
A  Yes.
Q  And would this be a normal phenomena if the wound did not go in too deeply to cause extensive bleeding?
A  Yes.
Q  Doctor, getting to the next injury or injuries which you've described to the investigating officer, you've described an injury which you can recollect seeing on the head.  Could you once again indicate to the investigating officer -- I'm not certain whether you were asked to do it by the prosecution, but indicate where this injury was?
A  This was on the forehead, midleft of the midline.  It was moderately swollen.  There was an area of black and blue or ecchymosis and the skin was slightly raised.  There was no laceration.  There was no deep depression under the skin.
Q  Would you say doctor -- the last term, no depression, could you please explain to the investigating officer why you looked for a depression?  And what a depression means?
A  Well, should an individual sustain a pressed skull fracture, there's cerebral status at that time, and a significant amount of possible compromise.  It's a -- an emergency that most -- well, there are different medical opinions, but the majority of them will indicate a pressed skull fracture should be elevated immediately.  This is the concern.
Q  Now, in describing a wound to the head, can you make a valid determination of its relative seriousness merely by describing what it looks like to the eye?
A  No.
Q  And isn't it a fact that in many cases there is -- isn't it a fact that in many cases there is no medical relation to what the injury looks like on the surface as to what damage it causes to the brain?
A  That's right.
Q  Since you are now in a training program regarding neurosurgery, doctor, do you regard any injury to the head to be significant of this nature?
A  No.
Q  As a matter of fact, hasn't it been said by Hippocrates that no head injury is so slight that it should be neglected.

CPT SOMERS:  What Hippocrates may have said is irrelevant here; I object.

COL ROCK:  Objection sustained.  I don't think we need to bring in any humorous matters into this proceedings, counselor.

Q  Now, we've had prior testimony of people who were at the MacDonald household, first the MP's who arrived in the MacDonald household, who were the first people to see Captain MacDonald, and one or more of them has testified that Captain MacDonald was manifesting -- I believe the term was -- all the signs of shock.  Would that be consistent with the injuries which you observed in the hospital later, or would it be inconsistent with the injuries?  I'll rephrase it that way.
A  First of all, I don't know what they -- what they said when they said he manifested signs of shock.  The second place is professionals and they are not even medics.  At the time I saw Captain MacDonald he was -- he showed no evidence of having been in shock.
     
Q  When you say, having been in shock, are there varying degrees of shock regarding the seriousness and signs which are shown?
A  Yes.
Q  And assuming that Captain MacDonald was seen by nonprofessional people who described what, in their training, they saw as the signs of shock, and I think the descriptions were -- manifested that he was cold, the teeth were chattering -- he felt faint or felt that he might lapse into unconsciousness or in some type of semi-comatose state that at one point arrived, at which point he was given mouth-to-mouth resuscitation.  Giving those facts is it possible that the body's recuperative powers are such that, that by the time he arrived at the hospital, that this was not a serious form of shock, but his recuperative powers could have brought him to the condition of this sort?

CPT SOMERS:  I object to that question. First to the way it's phrased as being long and involved, and very difficult to answer.  Second, as being a hypothetical into which the defense is attempting to lead the doctor to a conclusion which I do not believe he can possibly do with a hypothetical question, therefore I object to it.

COL ROCK:  The objection is overruled, with that portion trying to make this a simple question for my benefit.

Q  Is it possible, doctor, that by the time Captain MacDonald was brought to the hospital, which I believe from the time which has been described, would have been a minimum of a half an hour from the time the MP's saw him -- is it possible that the recuperative powers would have brought him back to the condition, sort of from being on the verge of shock to some area of shock?
A  Well, it's possible.  It wouldn't be very serious shock.
Q  But it is possible?
A  It is possible.
Q  When you say very serious shock, you are referring to shock which could result in death, aren't you, doctor?
A  Well --
Q  I don't know the medical terms, but there are varying degrees of shock from minor to extremely serious, aren't there?
A  Yes.

COL ROCK:  Counsel, how much longer do you think your questioning will continue?

MR. EISMAN:  I honestly couldn't estimate at this point, sir.  I honestly couldn't estimate.  It could be an hour or two hours at this point.

COL ROCK:  I would suggest then, if counsel for the government agrees, that we break at this time for lunch.

CPT SOMERS:  Sir, immediately following lunch I have another witness which I wish to use then because that's the only time I can schedule him.  I don't mind how we set this up with Doctor Jacobson, but I do certainly request that I be permitted to do that.

COL ROCK:  I am having certain conferences prior to our meeting at 1330 today, and I would like to have the current witness available at 1330.

CPT SOMERS:  I can do that, sir.

COL ROCK:  I will make certain decisions by 1330 relative to our proceedings this afternoon.  Any further discussion?

MR. EISMAN:  The only thing I think might be a problem -- I remember the doctor telling me that he has to go on duty later in the afternoon today.  We are taking his leisure time, not his work time, away from him.  There -- if there is another witness who might be on the stand for a long time, the doctor will have to wait and then go on duty, so --

COL ROCK:  What time do you go on duty, doctor?

WITNESS:  I go on surgical call at 4:30 today, 1630 hours.

COL ROCK:  We will take that into consideration this afternoon.

MR. EISMAN:  I'm pretty certain I could complete my cross examination by that time, but the question is, you know, he might have to come back on Monday, which might be another problem, timewise.

COL ROCK:  I think we will be able to resolve that at 1330 this afternoon.

CPT SOMERS:  I will say, sir that this witness can be made available Monday or at the convenience of this hearing, practically.

COL ROCK:  This hearing will be recessed until 1330.

(The hearing recessed at 1118 hours, 17 July 1970.)

(The hearing reopened at 1435 hours, 17 July 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that all parties that were present at the recess are currently in the hearing room with the exception of the witness, and Captain Thompson, assistant counsel for the government.
     I have been informed that the government desires to call as a witness Mr. Caverly to testify this afternoon.  The defense counsel states he objects to this procedure.  I have decided that since this witness is now available to testify and will not be available until approximately three weeks from today, that he will so testify this date.  I have carefully considered the pros and cons of this procedure as presented to me by counsel for both sides.  Therefore, Mr. Eisman and Captain Somers, I do not desire to hear further argument.  The defense objection is noted for the record.  Captain Somers, you may proceed.

MR. EISMAN:  Sir, if I might impose an objection at this point.  Our objections were not placed on record.  Because of the seriousness of the problem that we are faced with at this point, I must respectfully request we are permitted to place these on the record so that any reviewing authority would have full benefit of what our objections are so that they might adequately pass on them.  Without our objection being placed on the record, we could not have an adequate opportunity to express our opinion.

COL ROCK:  I' sorry, counselor, but these proceedings are being conducted for my benefit and I wish to proceed.  Please continue.

MR. EISMAN:  At this time, I would respectfully state, based on the disciplinary rules of the American Bar Association, Disciplinary Rule 6-101 which states -- a lawyer shall not, in Section 2, handle a legal matter without preparation adequate under the circumstances. So I feel on that basis I cannot adequately represent my client with this witness, and I cannot be present so that it could be said that I was here to hear this witness, and I will at this time absent myself, but I again request permission to at least state for the record the reasons for this so that the record will be perfectly clear as to what is necessary.  This is a capital offense and I believe that no harm would be done by at least letting us place our reasons for this action on record, and at this time I would also state that as civilian counsel I have instructed both Captain Douthat and Lieutenant Malley, under the applicable sections of the Code, that they are not permitted to act on behalf of Captain MacDonald with this witness, and they -- are not permitted to cross examine or any way question this witness because, in my opinion, they are in the same position as I am.  They would be violating disciplinary rules and I cannot place them in that position, and therefore under my instructions, they will not continue or be able to cross examine this witness and have no authorization to do so from either counsel or Captain MacDonald.

COL ROCK:  Your civil attorney, Mr. Eisman, has stated that you do not desire that Mr. Eisman represent you during the testimony of Mr. Caverly.  Is this your desire?  I am addressing my remarks to the accused.

MR. EISMAN:  I have, as counsel for the accused, I have instructed him not to answer any questions in this regard.  He has consulted with his counsel and I'm authorized to speak for Captain MacDonald, and I have instructed Captain MacDonald not to answer any questions in regarding this matter since I have stated the position of the defendant.

COL ROCK:  Mr. Eisman, this is a military proceeding, and I am within my authorized right and procedures to conduct this in a military procedural manner, and I am addressing these remarks to Captain MacDonald.  I will once again repeat the question.  Captain MacDonald, your civilian attorney, Mr. Eisman, has stated that you do not desire that Mr. Eisman represent you during the testimony of Mr. Caverly.  Is this your desire?

(Accused failed to answer.)

CPT BEALE:  Mr. Eisman, do I understand you that you are prohibiting your client to answer the question of the Article 32 investigating officer?

MR. EISMAN:  I am advising him, as his attorney, that there is no duty upon him in this matter to answer when I have been authorized by him to answer for him.  I feel it would be a violation of his constitutional rights at this point to answer that question, and it would be a violation of his rights under the 5th Amendment to answer any questions regarding this because of the seriousness of the matter; and I am instructing him or ordering him not to answer that question.

CPT BEALE:  Would you please state for the proceeding how a question concerning whether or not he cares to be represented by you in these proceedings infringes upon his constitutional right?

MR. EISMAN:  Because at this point there is an attempt by the prosecution to put on a witness for which we believe there has been a deliberate attempt to place him in this position through denying us our right to a pretrial interview, after they have stated we have that right, after the US Department of Justice said they had no objection, and finally being told just today by the US Attorney that this --

CPT BEALE:  Now, just -- just a minute.  You are getting into something that Colonel Rock has already ruled he does particularly care -- he's already considered all the arguments.  The point now is, are you prohibiting your accused from answering Colonel Rock's questions?

MR. EISMAN:  May I consult with military counsel regarding this matter?

CPT BEALE:  Yes, you may.

MR. EISMAN:  The basis upon which I made that statement on Captain MacDonald is based upon the case of 26 VMR 692, a matter of the United States versus Grant.  It says that all dealings with the accused are through his counsel, and that this is set in the Military Justice Trial Procedure, at Department of the Army Pamphlet provided for the use of the defense in this matter, and that is the basis upon which I have advised Captain MacDonald that he is not authorized to speak in this matter; but since all dealings are through his counsel, this is the defendant through his counsel, and there will be no need served by interrogating Captain MacDonald in this matter.

CPT BEALE:  Mr. Eisman, he will not have an attorney for this portion of the proceedings if, in fact, what you say is true.  Therefore, the Article 32 officer is completely within his power and duty to address his remarks personally to the accused, and these proceedings are being conducted for the benefit of Colonel Rock, and he must know in his own mind that Captain MacDonald personally makes this determination.

MR. EISMAN:  The rule specifically says all matters must be dealt with through counsel.  I am still counsel.  I do not resign from the case.  I have stated my position, and on my advice he will not speak.

CPT BEALE:  You stated you will not be present in this hearing room if Mr. Caverly testifies, and if you are not going to be, then Captain MacDonald is going to answer the question of whether or not he desires your presence in here.

MR. EISMAN:  At this time, Captain MacDonald has a statement to make for the record.

CPT BEALE:  Very well.

ACCUSED:  Sir, it is my position that I will continue to keep Mr. Eisman as my attorney present in the room.  However, it is also my position that Mr. Segal will do the cross-examining of this witness.  This was my original understanding and I have received no further indicating from my chief defense counsel on this matter.  As Mr. Segal had planned to do the cross-examination I will not permit Mr. Eisman to cross examine this witness, but I will keep him in the room as my attorney.  Neither will I allow either of my appointed military defense counsel to cross examine this witness on the matter.

COL ROCK:  It is my understanding, then, that you have excused Mr. Eisman from the next portion of the proceedings, and if that is your desire --

ACCUSED:  No, sir, that is --

COL ROCK:  To the extent of the cross examination of the next witness.

ACCUSED:  I prohibit him from cross examining the witness but I do not excuse him from the hearing.

COL ROCK:  And that is your choice?

ACCUSED:  That is right, sir.

COL ROCK:  Captain MacDonald, I want you to understand that I do not have any say-so in your selection of counsel or how they represent you.  That is your decision, sir.  If Mr. Eisman is not present or is not used at your specific request, then you will be represented by both Captain Douthat and Lieutenant Malley.  Their participation during this portion of the proceedings is a matter I leave in your discretion.  Do you understand this?

ACCUSED:  Yes, sir, but I instructed them not to cross-examine this witness.  Furthermore it is my understanding that Mr. Segal would be allowed to cross-examine this witness.

COL ROCK:  There has been no such understanding.

CPT DOUTHAT:  May I say something for the record, sir?

COL ROCK:  Negative, not at this time.  We'll give you five minutes to consult with your counsel again, and please give me your personal answer as to whether or not you want Captain Douthat and Lieutenant Malley to represent you during this portion of the proceedings next coming, or whether you desire to have any counsel represent you for cross examination purposes of the witnesses.  This hearing will be recessed for five minutes.

(The hearing recessed at 1448 hours, 17 July 1970.)

(The hearing reopened at 1502 hours, 17 July 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that all parties that were present at the beginning of the break are currently in the hearing room.
     Captain MacDonald, I address this next question to you, sir.  Do you still adhere to your statement that you do not desire any counsel to participate in cross-examination of the next witness?

ACCUSED:  Sir, I respectfully submit that I desire Bernard L. Segal, my chief defense counsel to be present and I authorize no further participation of either Mr. Eisman, Captain Douthat or Lieutenant Malley in the cross-examination of Mr. Caverly of the FBI since the United States Attorney has prohibited Mr. Caverly from being interviewed by my counsel.  I do so because Mr. Eisman, Captain Douthat and Lieutenant Malley have told me because of this they would be violating the canons of ethics if they participate in cross-examination.  I desire them to be present in the courtroom.  But due to the fact that only Mr. Segal is prepared to examine this witness, and since he will return on Monday, I only ask that this witness wait until Monday, since my life is hanging in the balance in this room.

COL ROCK:  So noted on the record.  Counsel for the counsel for the government, proceed.

CPT SOMERS:  At this time, the government requests permission, in calling Mr. Caverly of the FBI to bring Mr. James Proctor, attorney, who is licensed to practice law by the superior Court for the highest court of the State of North Carolina, and who is an Assistant United States Attorney to be present and to assist the government in the presentation of this witness' testimony only, and to take no active part in this proceeding.

MR. EISMAN:  Sir, this hearing was ordered closed by the investigating officer pursuant to a letter by General Flanagan.  To my knowledge the hearing was ordered closed to everyone except the mother of Captain MacDonald.  Unless there is a clarification from General Flanagan, I would object to permitting anyone else in this hearing room.  If we are going to let him in, I insist you let the public and press in also at this time.

COL ROCK:  This objection is sustained.  Proceed, counsel.

CPT SOMERS:  Yes, sir.  At this time, sir.  I would request five minutes.  I can guarantee that I'll need no longer than that.

COL ROCK:  This hearing will be recessed for five minutes.

(The hearing recessed at 1505 hours, 17 July 1970.)