CID Records

December 6, 1970

The Kassab-Malley Allegations

Letter from Michael Malley to Lt. General John Tolson re: Request for investigation of Cpt. Clifford Somers, Cpt. William deF. Thompson and CID Investigators Franz Grebner, Robert Shaw, and William Ivory

Related Files

1 Lt Michael J. Malley
HHC, 159th Engineer Group
APO San Fernando, California

Subject: Request for reinvestigation

Lieutenant General John J. Tolson
Commanding General
XV111 Airborne Corps and Fort Bragg
Fort Bragg, North Carolina 28307

(1) The undersigned was individual military counsel to Captain Jeffrey R. MacDonald, 6th Special Forces Group (Abn), 1st Special Forces, Fort Bragg, North Carolina. In that capacity, the undersigned has had occasion to participate in the preparation of CPT MacDonald's defense in an Article 32 Transcripts (UCMJ) investigation conducted to see if CPT MacDonald should stand trial for the killings of his wife and two children. Upon recommendation of Colonel Warren V. Rock, Investigating Officer, the charges against CPT MacDonald were dismissed without trial.

(2) The undersigned requests that an officer be appointed to investigate the conduct of three CID agents in the MacDonald case. In addition, the undersigned requests that two prosecuting attorneys' conduct during the course of the Article 32 Hearing be investigated

Listed below, briefly, are instances of what I consider to be gross negligence, possibly in violation of Article 92 (c), UCMJ, on the part of the CID investigators. Also listed are instances of possible perjured testimony on the part of some of these agents, a violation of Article 131 (UCMJ). Because the government prosecutors were in charge of the government's case before the hearing officer, it is suggested that their conduct be investigated to see if they were aware of the possible perjury. If so, they would be responsible for suborning of perjury, a violation of Article 131. In addition, other conduct on the part of both prosecutors and CID agents may constitute conduct unbecoming to officers and or conduct which is prejudicial to the good order and discipline of Armed Forces, violations of Article 133 and 134 (UCMJ). The specific individuals whose conduct should be investigated are: CPT Clifford L. Somers, Office of the Staff Judge Advocate, XV111 Airborne Corps; CPT William deF. Thompson, Office of the Staff Judge Advocate, XV111 Airborne Corps; CW3 Franz Grebner, CID Detachment, Fort Bragg, North Carolina; WO Robert Shaw, CID, Fort Gordon, Georgia (formerly at the CID Detachment, Fort Bragg); and Specialist Seven William Ivory, CID Detachment, Fort Bragg, North Carolina.

(3) The following instances of investigatorial or prosecutorial misconduct serve as basis of this request. However, I would like to point out that the entire CID investigation seems to have been conducted in such a grossly incompetent fashion, that the officer appointed to study my charges should not necessarily confine himself to the specific instances I mention. These should serve merely as points of reference.

(a) CID investigators did not take ordinary investigatory steps to determine how the crime scene had been changed prior to the time the investigators arrived and began to take photographs. MP's on the scene could have supplied much information, yet they were never interviewed in depth. This led the investigators recklessly and erroneous to place undue weight on the position of certain items of clothing, threads, fibers and a white flower pot and the presence or absence of mud, standing water and debris in the MacDonald household. The CID's April 6, 1970 interrogation of CPT MacDonald should be consulted for the CID confused state of mind regarding this evidence and compared with the transcripts of the Article 32 Hearing regarding this same evidence.

(b) CID investigators negligently failed to follow AR 195-10, paragraphs 3 -17 and 4-17, by failing to submit numerous identifiable finger and palm prints to the FBI and by failing to inventory the crime scene. This lead to disastrously erroneous conclusions by the CID, conclusions negligently represented as true to the SJA, XV111 Airborne Corps and Colonel Francis B. Kane, who signed charges against CPT MacDonald. These conclusions were that nothing was missing from the MacDonald house and that unidentified persons could not have been in the house. Both these conclusions are clearly unsupported. In fact it appears that at least one man's wallet was stolen from the MacDonald house while CID agents were present. It also appears that some women's jewelry was stolen and that numerous fingerprints in the MacDonald house are still unidentified.

(c) CID investigators negligently failed to take account of the fact they had not preserved CPT MacDonald's pajama bottoms; they thus recklessly assumed that the presence of certain fibers and threads (which in all likelihood had been disturbed anyway by MP's, CPT MacDonald himself, the doctor who pronounced CPT MacDonald's family dead and the investigators themselves) must be attributable solely to CPT MacDonald's pajama top. From this assumption, a fanciful and totally unsupportable thesis was manufactured and presented as conclusively proven to the SJA and Colonel Kane, who chose to believe this reckless fabrication. Again, the April 6, 1970 interview of CPT MacDonald should be compared to the transcript of the Article 32 Hearing.

(d) CID investigators recklessly assumed that positive identification had been made of some of the weapons thought to have been used in the assault on CPT MacDonald and his family. This was false and could have been easily verified.

(e) CID investigators recklessly failed to interview CPT MacDonald himself before he was a suspect, under conditions in which he could have supplied a coherent story and pointed out whatever uncertainties he himself was aware of. Yet, these same investigators drew wildly fanciful conclusions from fragments of interviews with CPT MacDonald held by agents of the FBI while CPT MacDonald was under sedation and emotionally upset. Again, the April 6, 1970, interview should be consulted. It is possible that the reason the CID did not interview CPT MacDonald was that they considered him a suspect from the beginning, however, if this is true, then Colonel Kriwanek, then XV111 Airborne Corps Provost Marshal, lied when he denied that CPT MacDonald was a suspect.

(f) CID investigators recklessly failed to determine the seriousness of CPT MacDonald wounds and recklessly failed to determine the impossibility of predicting before hand the consequences of self-inflecting such wounds. Instead, the investigators merely assumed the wounds were not serious, which is grossly in error. The one attempt to discover the hypothetical possibility of self-inflicting CPT MacDonald's wounds, a coroner from Baltimore was retained, as a consultant was ludicrously inept. The data given to the coroner (who had not seen a living patient in over 20 years) was faulty and as he testified, he feels he was misled.

(g) CID Investigators recklessly conducted interviews into CPT MacDonald's background and the background of his family, using at times techniques, which may be termed character assassination and which in all likelihood, distorted whatever value the information gathered had. Further, the CID investigators never carefully evaluated the results of their own investigation into CPT MacDonald's background and family, but merely assumed their own conclusions. Most people interviewed stated that CPT MacDonald appeared to be a normal person, who loved his family very much and who never exhibited any suspicious character traits. Yet, apparently the CID completely ignored the relevance of this.

(h) CID investigators never discovered any motive for the crime yet they recklessly assumed this fact was insignificant. It appears that the motive ultimately advanced by the prosecutors at the very end of the hearing was fabricated by the prosecutors themselves, since the CID investigation concentrated on finding evidence of drug abuse or marital discord in the MacDonald family, neither of which existed.

(i) CID investigators recklessly placed on CPT MacDonald the onus of explaining any facts which the CID itself could not explain and concluded because CPT MacDonald's inability to explain some things, he must be guilty of the crime.

(j) CID investigators recklessly represented to SJA and to Colonel Francis B. Kane, that it had thoroughly investigated this case, which was patently untrue. Further, the CID several times performed a ludicrous experiment in tipping over a coffee table in the living room of the MacDonald home. The purpose of this experiment was to demonstrate to Colonel Daniel Lennon, the SJA (who to this day seems to believe the CID's distorted version of what happened) and to Colonel Kane that the living room scene had been staged. When Colonel Rock did this same experiment under proper conditions (taking account of all evidence present in the CID's own photographs of the crime scene), it was apparent that the living room scene was natural and not staged. See the transcript of the Article 32 Hearing.

(k) The prosecutors (it is not clear which one) told at least one government witness, Specialist Four Kenneth Mica, a military policeman, not to volunteer information to the defense which was clearly relevant namely, that Mica had seen a girl matching the description of one of the assailants standing on a corner near the MacDonald house shortly after the crime occurred.

(l) The prosecutors, in conjunction with the CID agents, failed to produce CID laboratory reports concerning wax samples taken from the MacDonald house although Colonel Rock repeatedly asked for these reports. When Colonel Rock sought an explanation, Mr. Grebner said he had lost the reports. It is suggested that possible perjury and suborning of perjury, is involved here.

(m) The prosecutors, in conjunction with the CID, delayed submitting into evidence the results of certain laboratory testing of hair samples forcibly taken from CPT MacDonald for comparison with certain hairs allegedly found at the crime scene. When the laboratory showed that the hair samples did not match, a revised laboratory report was written to cast doubt on the exculpatory nature of the first report. This appears to be conduct, which was clearly designed to prejudice the defense of CPT MacDonald, when it turned out that the government's hope for laboratory results would not be forthcoming. In addition, Mr. Grebner said that the reason for the long delay in submitting the reports to the Hearing Officer, again, loss of the reports. This is difficult to believe. It is again suggested that possible perjury and suborning of perjury may be involved.

(n) During the course of the defense's case, the name of a certain female resident of Fayetteville, North Carolina was supplied by a defense witness and a very strong possibility that this person may have been involved in the MacDonald family murders. Subsequently, at the instigation of the government prosecutors (who alone could have been aware of the girl's identity, because of the close nature of the hearing) specialist Ivory interviewed this girl whose identity was known all along, but never revealed to the defense either by the CID or prosecutors. Ivory's testimony stated that not only was the story about this girl, told by the defense's witness, true, but that the CID dismissed this story as not fitting their theory of the case and so the CID chose not to pursue this story. Further, it became known through Ivory's own testimony that this girl was a drug pusher and informer, who were being protected by the Fayetteville police and by the CID. It is suggested that this information was so clearly exculpatory that active misconduct on the part of the CID and the prosecutors, who apparently knew all along of the identify of this girl and her possible implication in the crime, can be inferred in the concealing of this information from the defense. Moreover when Ivory interviewed this girl a second time at the instigation of Somers and Thompson, the purpose seemed to be solely to discredit the importance of her and not to pursue all of the information which she seems to be capable of supplying. It is suggested that the conduct of Somers, Thompson and Ivory indicates that their only purpose in again interviewing the girl, after the defense stumbled on to her, was to cover the government's misconduct in not revealing this information sooner and pursuing the matter further. It is suggested that not only might this be perjury, but it also might be conduct clearly prejudicial to good order and discipline and a clear obstruction of justice. By the end of the hearing, when these incidents took place, it was obvious that the prosecutors and the CID had only one goal in mind, to bring CPT MacDonald to trial at all costs, regardless of the evidence that might have been suppressed or distorted. It is suggested that this clearly oversteps the bounds of vigorous representation the government may expect of its agents.

(4) Request that Thompson, Somers, Grebner, Shaw and Ivory be suspended from all further duties pending the outcome of this investigation, for the good of the service.

(5) Request that the undersigned, as well as all persons to whom official informational copies of this letter have been furnished, be kept informed of the progress of the investigation and the results.

(6) It is suggested that the sort of gross incompetence and misconduct alleged, infringing on the rights and lives of other people, cannot be allowed to happen again. If the law is to be humane, the people who enforce it must be responsible for their decency and humanity or lack of it. Otherwise, law is only fear, and we all must be either bullies or cowards.

Michael J. Malley

Honorable Stanley R. Resor, Secretary of the Army
MG L.B. Ramsey
MG Kenneth J. Hodson
BG Henry E. Emerson
Office of the Secretary, DA, ATTN: Office of the General Counsel
Colonel Francis B. Kane
HQ, XV111 Abn Corps, ATTN: SJA
HQ, XV111Abn Corps, ATTN: Provost Marshal CO, Third MP Gp (C1)
Mr. Bernard L. Segal, Esquire
Dr. Jeffrey R. MacDonald
CPT James F. Douthat
CPT Clifford L. Somers
CPT William deF. Thompson
CW3 Franz Grebner
WO Robert B. Shaw
Specialist Seven William Ivory

Allegations by Michael Malley, with Refutations, Substantiations, and Comments

Alleged that CID agents gave possible perjured testimony.

Refutation: Captain Somers offered the professional opinion that no perjured testimony was made by CID agents during the Article 32 hearing.
Alleged CID agents were grossly negligent.

Refutation: Colonel Kriwanek and other senior officers formed a high opinion of the performance of the military police and CID personnel during the investigation of the MacDonald murder case.

It was felt they conducted the investigation in a highly professional manner using the best available practices and techniques.

Outside experts called in to evaluate the investigation gave the MPs and criminal investigators high marks in all categories.

Comment: This inquiry has determined that some errors and omissions occurred during the course of the initial phase of the investigation. Example:

(1) Security of the crime scene was inadequate.

(2) No photographs of Captain MacDonald's wound were taken.

(3) Captain MacDonald's pajama bottoms were destroyed by hospital personnel.

(4) Fingerprints taken of the victims were later determined to be inadequate.

(5) Hair samples were not taken from the bodies of the victims.

These errors are indicative of poor organization of investigative effort. However, considering the complexity of the crime and the magnitude of effort expanded to solve this crime, the term gross negligence is inappropriate.
Alleged that other conduct on the part of prosecutor(s) and CID agents constituted possible conduct unbecoming of officers and/or conduct which is prejudicial to good order and discipline.

Comment: The government counsel and Provost Marshal praised the competence of the criminal investigators.

On the other hand, defense counsel, Captain Douthat holds the opinion that CID agents and others committed illegal, unethical or wantonly derelict acts.

The data given into the inquiry team by Captain Douthat includes the following:

(1) Defense counsel interview of Grebner, Ivory and Shaw.

(2) Notes taken during the testimony of Medlin.

(3) Petitions to the Court of Military Appeals.

(4) A motion filed by the US District Court, Eastern District of North Carolina.

(5) Three photographs depicting persons who allegedly surveilled Douthat and Malley.

The petitions and motions were denied by the respective courts, thus determining that these complaints were without foundation.

Examinations of the remainder of the data failed to substantiate the charges that CID agents were guilty of conduct unbecoming of officers, or conduct prejudicial to good order and discipline.
Alleged that CID agents did not take ordinary investigative steps to determine if and how the crime scene had been changed prior to their arrival.

Substantiation: Not all of the persons present at the crime scene were interviewed by the CID to determine if the crime scene had been changed prior to the arrival of CID agents.
Alleged that CID agents failed to interview MPs who had been at the crime scene to develop this information.

Substantiation: All MPs who had been at the crime scene were directed to prepare written summaries.

These summaries were reviewed by CID agents. However, not all of these MPs were interviewed.
Alleged CID agents failed to submit numerous identifiable finger and palm prints to the FBI.

Comment: The CID did not initially submit prints to the FBI for identification as they were aware that the FBI could not check single latent prints in their main fingerprint file.

Later, at the request of Colonel Rock, 50 prints were submitted to the FBI. This submission was made in spite of the known fact that the FBI could not conduct a search in the main fingerprint file since a search of this file is based on a classification of all ten fingers of an individual.
Alleged CID agents failed to inventory the crime scene.

Comment: Items of evidentiary value were inventoried, but no complete inventory of the quarters was made.

According to Colonel Lennon, a complete inventory was not necessary. Except for MacDonald's TV and other items which MacDonald requested the CID to obtain for his BOQ, nothing in the house was disturbed, except for items sent to Fort Gordon Laboratory for analysis. An inventory of these items were maintained.

During the week of  November 30 - December 4, 1970, all the items in the house were returned to MacDonald, except those held for evidentiary purposes.

MacDonald submitted a claim against the United States in which he included the loss of two heirloom rings. Whether or not he had the heirloom is a matter known to MacDonald and Kassab alone.

The claim is presently being processed in the US Army Claim Service Office, Fort Holabird, MD.
Alleged CID made the erroneous conclusion that nothing was missing from the house and that no unidentified persons could have been in the house.

Refutation: CID agents who arrived at the crime scene observed no signs of ransacking or vandalism which would lead them to believe that theft had occurred.

To the contrary, expensive items were left untouched.

There was no evidence of forced entry into the quarters, and laboratory findings revealed no evidence of the locks being picked.
Alleged that at least one man's wallet was stolen from the MacDonald house while CID agents were presence.

Substantiation: Investigation by USACIDA Inquiry Team revealed that Private James Paulsen, an ambulance driver, Womack Army Hospital, stole MacDonald's wallet; removed six one-dollar bills and discarded the wallet in the vicinity of Womack Army Hospital on the morning of February 17, 1970. The wallet was recovered by the CID on February 17, 1970, and subsequently returned to MacDonald.
Alleged that it appeared some woman's jewelry was stolen.

Comment: No evidence exists to support the claim that jewelry was stolen.

Private Paulsen, who admitted stealing the wallet, denied stealing anything else from the MacDonald quarters.

WO Ivory released two rings to Captain MacDonald at his request. One was a square diamond-type ring, and the other was a heart-shaped ring.

Whether or not heirloom rings were stolen is known to Kassab and MacDonald alone.
Alleged numerous fingerprints in the MacDonald house are still unidentified.

Substantiation: Eighty-seven latent fingerprints in the MacDonald quarters were photographed. Seven exposures were faulty, and subsequent efforts to re photograph these prints were prevented because dusting powder had distorted the prints.

Of the remaining 80 prints, 47 were identified with known persons, and  33 were unidentified. However, 26 of these 33 prints are "partials" and could easily have been made by the victims. Unfortunately, full rolled impressions of the victims hands were never made.
Alleged CID agents failed to preserve MacDonald's pajama bottoms.

Substantiation: Captain MacDonald wore his pajama bottom to the hospital where they were removed by hospital attendants, placed into a waste container and dumped into an incinerator.

By the time CID investigators arrived at Womack Army Hospital later in the morning of February 17, 1970 to retrieve the pajamas, they discovered the pajamas had been destroyed.
Alleged CID agents assumed positive identification of some of the weapons thought to have been used in the assault upon Captain and his family.

Substantiation: The CID had sufficient reason to believe that the weapons found under the bush and in the master bedroom did come from the MacDonald quarters and had been used in the assault on the victims.

The statement of Pamela Kalin and Captain MacDonald (both later refuted); plus the comparison of paint splashing found on the sidewalk, storage bin, and club; plus the laboratory reports which revealed that blood found on the knives and club matched blood of the victims, led the investigators to presume that they had identified the murder weapons.
Alleged CID agents failed to interview MacDonald before he was a suspect to obtain a coherent story.

Refutation: Three interviews of Captain MacDonald were conducted at Womack Army Hospital on February 17, 18 and 19, 1970 by joint FBI/CID investigative team.
Alleged that if Captain MacDonald was a suspect prior to April 6, 1970, Colonel Kriwanek lied when he denied this.

Comment: A question was asked of Colonel Kriwanek during his February 18, 1970 press conference as to whether the Army considered Captain MacDonald a suspect.

Colonel Kriwanek did not define MacDonald's status during this press conference other than to state that he considered MacDonald a witness.
Alleged CID agents failed to determine the seriousness of MacDonald's wounds or the impossibility of the consequences of self-inflicting such wounds.

Refutation: Interviews with Womack Army Hospital medical doctors convinced CID personnel that although the stab wound to the chest resulting in a pneumothorax was serious, it was not a critical wound.

All other wounds were superficial.

CID agents Ivory and Shaw visited the Armed Forces Institute of Pathology, Washington, DC, and solicited the advice of experts in an attempt to determine if MacDonald's wounds could have been self-inflicted.

The opinions expressed by these medical personnel was to the effect that a medical doctor could very well have self-inflicted the primary wound as well as the superficial wounds, knowing that in all probability that the results would not be fatal.
Alleged that CID agents recklessly conducted interviews into MacDonald's background using character assassination techniques and never evaluated the results of such investigation.

Refutation: A principle reason for the extensive inquire into the backgrounds of Captain and Mrs. MacDonald was to determine any possible motive anyone might have for murdering Colette and the children while leaving the strongest member of the household alive.

The background investigation was necessary in order to determine the character, reputation, and way of life of the MacDonalds.

The purpose of the investigation was to discover favorable as well as adverse information.

Evaluation of the information received from these background inquiries led the CID to the conclusion that Captain MacDonald possessed a good reputation.

No evidence has been found indicating CID agents used character assassination techniques, were reckless in their interviews, or failed to evaluate results of their inquiries.
Alleged CID agents never developed a motive and assumed that this was not significant to the investigation.

Comment: To date no motive has been found for the murders of Colette, Kimberley and Kristen MacDonald.

The absence of a clearly discernible motive supports one of the leading theories of how the crime occurred, namely that it was a crime of passion.

However, CID agents have continued to search for a motive.
Alleged CID agents placed Captain MacDonald in the position of having to explain facts for which the CID could find no explanation, and because MacDonald was unable to provide such explanation, he was assumed to be guilty.

Refutation: Although Captain MacDonald did not give adequate answers to questions concerning certain aspects of events in his story, this alone was not the basis for the suspicion that he murdered his family.
Alleged CID agents recklessly represented to the SJA and Colonel Kane that a thorough investigation had been conducted which in fact was not true.

Refutation: The CID continuously briefed Colonel Kane, Colonel Kriwanek and other senior officers concerning process of the investigation, laboratory examination results, and other developments in the case as they occurred.

Colonel Kriwanek briefed LTG Tolson and MG Flanagan daily, and visited Colonel Kane several times a week concerning process of the case.

Captain Somers believes that the CID thoroughly investigated the case.
Alleged CID agents performed a "ludicrous experiment" in tipping over the coffee table in the MacDonald living room to demonstrate that the living room had been staged.

Refutation: The experiment with the coffee table was a genuine effort on the part of Dr. Fisher and CID agents to determine the probability of the living room scene being staged.
Alleged a prosecutor told an MP witness, SP4 Mica not to volunteer information to the defense that he had seen a female matching the description of one of the assailants.

Substantiation: SP4 Mica said that Captain Somers and Captain Thompson instructed him not to volunteer any information to defense counsel during defense counsel interviews, but rather to answer truthfully all questions asked of him.
Alleged prosecutor(s) in conjunction with CID agents failed to produce laboratory reports concerning wax samples found in the MacDonald house.

Refutation: Wax samples from the MacDonald quarters were analyzed by the US Army Criminal Investigation Laboratory, Fort Gordon, GA; however, the analysis report was not received by government counsel until on or about August 15, 1970.
Alleged prosecutor(s) in conjunctions with CID delayed submission into evidence results of laboratory testing of hair samples forcibly taken from MacDonald because the laboratory report was written to cast doubt on the exculpatory nature of the first report.

Refutation: Captain Somers was not satisfied with the wording of the initial laboratory report and asked for clarification.

An addendum was eventually sent by the laboratory and when this was received the report was given to the Article 32 officer.

The control presentation of the government's case is solely in the hands of the government counsel.
Alleged CID agent Grebner testified that the long delay in submitting such reports was due to the fact that these reports were lost which was probably not true.

Comment: CW3 Grebner received the laboratory report of the hair samples on July 30, 1970, and filed it with other laboratory reports.

On August 17, 1970 Lieutenant Ossman inquired if the hair samples had been received. Grebner told him he could not recall having seen it but, upon checking his files, discovered that it had been received. He immediately notified Lieutenant Ossman that he had found the report.
Alleged the prosecutor(s) and CID withheld the identity of a female resident of Fayetteville who may have been involved in the crime; did not pursue the investigation of this obvious lead and withheld this information from the defense.

Refutation: The identify of Helena Stoeckley was known to CID agents prior to the MacDonald murders, primarily because she had served as an informant to the Interagency Bureau of Narcotics, Fayetteville, NC. She was interviewed shortly after the murders because she was a hippy.

No evidence was produced linking her to the crime. Nothing indicates that the CID deliberately withheld this information from the defense counsel.
Alleged CID interviewed this female only after her discovery by the defense and then solely to cover up government misconduct.

Refutation: There is no indication that the re-interview of Helen Stoeckley following the testimony of witness Posey was done for the purpose of covering up government misconduct.