Trial Transcripts
August 7, 1979
Playing of April 6, 1970 tape and reading from Grand Jury transcripts
Scans of original transcript
F U R T H E R P R O C E E D I N G S 10:00 a.m.
THIS CAUSE came on for further trial before The Honorable Franklin T. Dupree, Jr., United States Chief District Judge, and a jury, on Tuesday, August 7, 1979, at Raleigh, North Carolina.
(The following proceedings were held in the presence of the jury and alternates.)
THE COURT: Good morning, ladies and gentlemen. Any further evidence for the Government in this case?
MR. BLACKBURN: Yes, sir; when we broke yesterday afternoon, we were about halfway through the playing of the tape recording which we will proceed to do.
THE COURT: The reason I did not say good morning to them is that I have been with them since about 9:00 o'clock. I have enjoyed about all of them as I can stand.
MR. BLACKBURN: Your Honor, I might also say that, for the benefit for those not within the rail: the reason the other people in this courtroom cannot hear is because the tape recording machine simply will not work sufficiently well using this equipment.
THE COURT: For some reason or other, I was under the impression in the last one of these audio trials that I conducted that this machine back there was broadcasting the same thing to the audience that the jury was hearing, but apparently it is not.
MR. MURTAGH: Your Honor, as I understand the principle, the wire works on an induction basis. If you are inside the wire, the headphones will pick it up. We can cut in a speaker which will blast the people on that side of the courtroom.
THE COURT: That might not be a bad idea.
MR. MURTAGH: The problem is we cannot turn down the speaker without turning down the volume that the jury will hear. We will try it.
THE COURT: What do you have -- about another hour of this?
MR. BLACKBURN: About one more hour.
THE COURT: Why don't you make a transcript of whatever they had available to the press?
They need awful bad to get this material, and I want to see that they get it.
MR. BLACKBURN: We will do that as soon as it is played, Your Honor.
THE COURT: They probably won't be getting up an edition before the next hour anyway. It could be a little late for the Raleigh Times.
(The aforementioned tape recording of interview of April 6, 1970, was then played to the Court and jury.)
(Tape playing completed at 10:58 a.m.)
MR. BLACKBURN: Your Honor, at this point in the proceedings, what we will seek to do for the next little while is to mark for identification and enter into evidence certain prior statements of the Defendant, I think, from the Article 32 proceedings and the Grand Jury proceedings.
I spoke with Mr. Segal I believe it was yesterday, and I believe we are in agreement from both sides and, when either side wishes to do this, we will simply stipulate as to the accuracy or authenticity of those transcripts.
MR. SEGAL: I have no question about it, Your Honor. I do have a matter pertaining to -- I have no objection to that. I would certainly agree the stenographer has recorded the transcript of these other proceedings, but I do have another matter. May counsel see Your Honor at the bench, please?
THE COURT: All right, sir.
B E N C H C O N F E R E N C E
MR. SEGAL: Your Honor, now that you have heard the first portion of this interview, I want to renew again our position that we are entitled to have the Government at this time play the balance of the tape subject only to the materials excised that you indicated before because it deals precisely with the continuation of the same subject of where the fibers were.
It deals precisely with which rooms he was in. It deals precisely with every one of these questions. It is just manifestly unfair for the Government, in view of Rule 106 which is explicit. It says you cannot use a recorded statement this way.
The rule makes it clear that if they had put on a witness -- Grebner, Shaw, or Ivory -- that they could have done just what they wanted to do, but the rule deals specifically with this business of taking advantage of documents and parts and pieces of documents or parts and pieces of tapes.
I think it is simply wrong for the rule to be discarded by the Government simply because in the presentation there is one piece that should not be heard. They managed without any difficulty to excise from our consideration something they should not and did not want us to hear today. We were put in a position that we will have to have the jury wait at least week probably before we get to a juncture where we can do this again.
The technological problem of setting up this gimmick here that the Government has used to broadcast it will be, of course, considerable. I think under the circumstances, in view of 106 which is quite clear, in view of the technical problems, in view of fairness to the Defendant, that I really think we have to have this interview played.
I have never heard of a situation myself, Your Honor, where just because somebody went out to the bathroom or somebody went to lunch, that that was not considered to be the same statement -- I mean in the original version of this -- this is a "Johnny come lately" product we are looking at called a transcript of his interview.
They are continuous. There is no separation from volume one to volume two. This is a gimmick by the Government to exclude the parts that they don't want which are very important to the jury's understanding of exactly what MacDonald's attitude was.
I'll be glad to produce a copy of the original version, Your Honor, and you will see it is a continuous transcription. This is just an artificial division. Because they took a break for eating, that does not mean it isn't the same interview. This has been referred to by the Government as the April 6, 1970, interview. There has never been two different interviews.
This rule is meant to prohibit lawyers from this kind of gamesmanship where they can put in a piece of a recording or put in a piece of a document if they wanted to -- if they did not want to take advantage of hearing live voices, they had the duty to use persons.
But I want to point out again that the rule is so narrow and direct that one cannot understand the basis of the Government's objection -- how they seem to escape its effect. "When a writing or a recorded statement or a part thereof is introduced by a party, that "an adverse part may require" -- not whether they like it -- "may require him to at that time to introduce any other part" -- let alone any other part; any other statement they might have.
But we are not talking about a different statement -- "which ought in fairness to be considered contemporaneously with it." The fairness is to the party against whom it has been used. It is not fairness to them. The fairness to them was achieved when they were permitted to use the tape when the transcript was available. For them to now take the words of the rule and say it is not fair to them is to simply make the rule into nothing.
MR. MURTAGH: Your Honor, the interviews were taped separately, and they were originally transcribed separately. There is a morning transcript and an afternoon transcript. I'd like to point that out for the record.
Our concern with the afternoon transcript is based primarily and principally on the fact that it is permeated with references to the polygraph. It would require the Government to be sitting there, hitting the buttons every two seconds. I don't see how the Defendant is prejudiced if he wants to read some portion not pertaining to the polygraph as part of his case.
He is certainly entitled to do so. The danger that we are concerned with is causing a mistrial by the introduction of the issue of the polygraph. What happened, Judge, was he asked questions about it, he found out how it worked, and he agreed to take it that afternoon.
They had to get somebody down from Washington to give it to him.
In the interim, he went and saw a JAG lawyer. The JAG lawyer said no way are you going to take a polygraph. So the next morning --
MR. SEGAL: (Interposing) One given by the CID is what he said.
MR. MURTAGH: Well, all right. Let me finish on that. He came back in the next day and did not take the polygraph because the Government has never polygraphed this Defendant. We subsequently learned during the Grand Jury that apparently when he was in Philadelphia being interviewed by Dr. Sadoff, prior to Dr. Sadoff's interview, he was apparently polygraphed because Dr. Sadoff's report is predicated upon some explanation for the deception indicated in the polygraph report.
So apparently this came about ultimately and we think this is not an issue before this Court.
MR. SEGAL: I have a solution, Your Honor. As I hear the Government's objection, they are just worried about the polygraph as all get-out. I propose that the Government be now compelled with a reader sitting on the stand to read the transcript of the second part of the interview to continue part of it, and we will just take ten minutes.
We will excise it and we will have a reader do it.
THE COURT: And forget about the tape?
MR. SEGAL: Yes, sir.
THE COURT: That was exactly what I was going to propose too. I think if he has a continuation of the same interview, other materials in there which are not objectionable from a pure admissibility standpoint like the polygraph thing which obviously is and everybody recognizes that, then I think he ought to be permitted to do it.
But your suggestion is the one that I was going to propose, and that is that you excise those things, but I won't require you to stop now.
MR. MURTAGH: We cannot do it in ten minutes.
THE COURT: I won't require you to do it right now, but we can today; can't we?
MR. SEGAL: All right.
MR. MURTAGH: I think so.
MR. SEGAL: We can do it at luncheon break and resolve that then.
MR. MURTAGH: Your Honor, I have a more expeditious solution. If counsel wants in fairness some portion of volume two read into the record, I suggest counsel and not the Government is the person to decide.
THE COURT: That is true. He is the one that can require it, so I will require you to require them to read those portions of it which are non-polygraph related.
MR. MURTAGH: Let them select it. That is all I am saying.
MR. BLACKBURN: There are things in there. If he is going to select things, we are going to select too.
MR. MURTAGH: All I am concerned about is the fairness question. If Mr. Segal wants something in fairness read into the record, he is the best person to select it.
THE COURT: He can tell you what he wants.
MR. SEGAL: I will say, Your Honor, may we leave it this way -- in view of Your Honor's feeling that we should not stop now and do it, may we defer the whole matter until after lunch?
THE COURT: Well, it just happens that we could take an 11:10 break right now. Would that help you any?
MR. SEGAL: Possibly, Your Honor.
THE COURT: Okay, let's do it that way. Maybe you will have it ready to go by the time we get back.
(Bench conference terminated.)
THE COURT: All right, members of the jury, this brings us up to our regular Tuesday through Thursday recess hour, but counsel have some additional materials that they want to read you that are related to what you have already heard. So, in order that they may gather those together and be ready to go at 11:30, we will take our regular morning break now and come back at 11:30. Don't talk about the case while you are out.
(The proceeding was recessed at 11:10 a.m., to reconvene at 11:30 a.m., this same day.)
F U R T H E R P R O C E E D I N G S 11:30 a.m.
(The following proceedings were held in the presence of the jury and alternates.)
MR. BLACKBURN: Your Honor, if we could have about two more minutes, we will be ready.
THE COURT: All right. There will be a slight pause of four minutes.
(Pause.)
THE COURT: For evidentiary reasons, members of the jury, some of the materials now to be read have to be edited a little to save you from going in and out while we argue about that.
These are some of the things that we were doing this morning before you got here.
MR. BLACKBURN: Your Honor, we would like to move into evidence Government Exhibits 1116 and 1135. 1116 is a copy of a tape to which we listened yesterday and today. 1135 is a copy of the transcript which everyone had. We just move those into evidence.
THE COURT: Very well.
(Government Exhibits 1116 and 1135 were marked for identification and received in evidence.)
MR. MURTAGH: Your Honor, also we would like to move in three Exhibits which have previously been marked but not offered: Government 121, 613(a) and 614.
(Government Exhibits Nos. 121, 613(a) and 614 were received into evidence.)
THE COURT: By way of explanation, and you gentlemen correct me if I am wrong, the interview which the jury heard and read from a transcription this morning was a morning session of an interview that was continued on that afternoon. For the remainder of it for the afternoon, it has been determined that the witness on the stand would read the answers to questions propounded as if they were the same interview, but we just won't have the earphones.
So, you will hear the afternoon session at this time.
Very well; proceed.
MR. BLACKBURN: For the record, this is the afternoon version of an interview of April 6, 1970. Present were Captain Jeffrey MacDonald, Franz Joseph Grebner, Mr. Robert B. Shaw and Mr. William F. Ivory. The questioning begins by Mr. Grebner.
(The aforementioned portions of interview of 6 April, 1970, were then read to the Court and jury.)
MR. BLACKBURN: Your Honor, at this point, we are going to continue some readings of different statements not about that that will conclude the April 6, 1970, interviews with Dr. MacDonald. At this point, we are going to read some prior statements made at the Article 32 proceedings and also at the Federal Grand Jury proceedings.
THE COURT: Very well.
MR. MURTAGH: Your Honor, may it please the Court, I will start on page 19 of volume three at the top of the page -- question by Mr. Woerheide.
THE COURT: Just for the record, you are going to repeat the questions that Mr. Woerheide asked in the Grand Jury?
MR. MURTAGH: Yes, sir.
THE COURT: And Mr. Blackburn will give the answers as given by Dr. MacDonald?
MR. MURTAGH: Yes, sir.
THE COURT: Very well.
MR. SEGAL: Your Honor, may I suggest that the Government simply state the date and time and the fact that Dr. MacDonald voluntarily appeared so we have a background.
THE COURT: If you want to get into that, maybe we should see you at the bench, if there is some background.
MR. SEGAL: Just a preliminary matter that should be put in.
B E N C H C O N F E R E N C E
MR. SEGAL: I request Your Honor that before reading this one section of the Grand Jury testimony that the Government state the preliminaries -- that it went to testimony, began on what date, the fact that he was warned of his rights, and the fact that he agreed, even though warned of his rights against self-incrimination to make the statement -- and indicate what day this was on and that this was the fifth or sixth day of his testimony, then go to read it.
Just putting it in like that has no meaning to the jury and they have no idea whether this is police interrogation or what this is.
THE COURT: I don't see how you could. Just go ahead and make the statement. What was the date of this?
MR. MURTAGH: January 21.
THE COURT: Of '74?
MR. MURTAGH: Of '75, sir.
(Bench conference terminated.)
THE COURT: So that the jury will understand the setting under which this questioning was conducted, one or the other of you state that; would you, please?
MR. MURTAGH: Yes, Your Honor. We are going to read excerpts from the transcripts of Dr. MacDonald's various appearances at the Grand Jury which returned the indictment in this case. Dr. MacDonald was subpoenaed in August of 1974 and appeared on August 12 through August 14, 1974.
On August 12, he was advised by Mr. Victor Woerheide, the attorney conducting the investigation for the Grand Jury, that Dr. MacDonald was a possible target of the Grand Jury, that he had a right to remain silent, and exercise his right against self-incrimination. Dr. MacDonald waived that right and testified voluntarily for the balance of that week.
I believe that it was practically five full days. Subsequently, near the conclusion of the Grand Jury, on January 21, 1975, Dr. MacDonald was recalled to the Grand Jury, advised again, I believe, of the nature of the Grand Jury investigation, and was interrogated again and again voluntarily testified.
THE COURT: Very well.
MR. MURTAGH: At this time, Your Honor, I will read from volume three -- this is the reappearance in January -- on page 19, starting at the top of the page, question by Mr. Woerheide:
"Q Where were you, Dr. MacDonald, when you received all of these wounds?"
"A You mean physically, in the house?"
"Q Yeah."
"A In the living room."
"Q Yeah, and -- and were you wearing your pajama top (sic) at the time?"
MR. BLACKBURN: I'm sorry. It says "pajamas" on my copy.
MR. MURTAGH: I'm sorry. "Were you wearing your pajamas at the time?"
"A Right."
"Q Now, somewhere in the fight the pajamas were ripped over the -- I think you used the term ripped over your head. I was reading something this morning, I thought it was this particular one. But -- how would you describe what happened so far as your pajama tops were concerned during the course of the struggle?"
"A I don't know how they got around my hands, sir. You keep telling me I said they were ripped. I never said that that I know of."
"Q Well, I saw it in something that I was just read -- "
"A (Interposing) They were either pulled over my -- over my head or was ripped from around my back. I don't know which. I have no idea."
"Q Well, during what phase of the struggle was this. Right at the very end, sort of before you went down and hit the floor?"
"A No, it seemed earlier than that because I remember my hands were bound up."
"Q Oh, did you hear a ripping sound or tearing sound at that time?"
"A No."
"Q Well, do you know in what manner they were torn or -- "
"A I have no idea."
"Q All that you knew was they got around your hands and wrists and they hampered you in your struggle?"
"A That's right."
"Q Then you fell unconscious?"
"A Right."
"Q Then you came to and they were still around your wrists?"
"A Right."
"Q And you went back to the bedroom and you removed them from your wrists?"
"A That's right."
"Q And do you recall how you did that?"
"A No, I do not."
"Q Did you use any force?"
"A Mr. Woerheide, I don't know."
"Q Well, did you -- "
"A (Interposing) Hear a ripping sound? No, I didn't hear a ripping sound."
"Q Well, how did you remove them?"
"A I just pulled them over my hands. You know, it seemed like I was struggling to get my hands out of them."
"Q And then you say you dropped them on the floor?"
"A Right."
"Q Went to your wife?"
"A (No answer.)"
"Q Took the knife out of her chest?"
"A (Nods affirmatively.)"
"Q And then reached out and picked up the pajamas and covered her?"
"A Yeah, that's right."
"Q And at the same time you reached over to the chair and retrieved some objects and also tried to cover her with those?"
"A That's right."
"MR. WOERHEIDE: what is your next number?"
"REPORTER: 26."
"(MacDONALD EXHIBIT 26, 1-21-75, MARKED FOR IDENTIFICATION.)"
"Q (Mr. Woerheide) This is the pajama top that was recovered over the body of Colette, Dr. MacDonald. And I am not asking you to examine it in detail but does that -- is that your pajama top?"
"A Looks like it."
"Q Now, after you put it on the body of -- over the body of Colette did you do anything else with it?"
"A Like what, sir."
"Q Well, did you move it from one part of the body to another part of the body?"
"A I think at one point I took it off her chest again to check her chest."
"Q And then you put it back over her chest?"
"A As I recall."
"Q And when you checked her chest you observed it was bloody?"
"A It was bloody?"
MR. MURTAGH: Sorry; I didn't hear you.
"A It was bloody?"
"Q Yeah."
"A Yeah."
"Q And had stab wounds?"
"A Yeah, I think we covered that, Mr. Woerheide."
"Q Dr. MacDonald, here are two photographs that were made in the -- in your bedroom that morning. And they show in front of the open closet door, this being the hallway, (indicating) some items in a heap on the floor. Upon examination, they turned out to be a -- well, let me ask you, do you recall seeing them there when you were in that room after the assault, and when you went back to the room?"
"A No."
"Q Do you recall seeing them that night at all?"
"A Well, looks like a sheet to me."
"Q Well, there are two items there together, one is a sheet, and one is the bedspread and I have both of those items here."
"MR. WOERHEIDE: Now, do you have another label?"
"(MacDONALD EXHIBIT 27, 1-21-75, MARKED FOR IDENTIFICATION.)"
"(Mr. Woerheide) All right the sheet is Exhibit 27, the bedspread is Exhibit -- or will be Exhibit 28."
"(MacDONALD EXHIB1T 28, 1-21-75, MARKED FOR IDENTIFICATION.)"
"Q (Mr. Woerheide) Let's deal with the bedspread first. Can you recognize this bedspread by its colors, and the pattern as a bedspread that was used on the bed of yourself and Colette?"
"A Yes."
"Q And although it has blood and various marks on it, by its color, would you say this appears to be the sheet of the type that was on the bed that night?"
"A Now, how do I know. It looks like a sheet that could have been on the bed that night, right."
"Q Well, you did have blue sheets, didn't you?"
"A Right."
"Q The sheet -- the bottom sheet which is on the bed is blue and the sheet on the floor is blue and -- Now, when you went back to go to sleep that night, I think you said it was around 2:00 a.m., was the bedspread on the bed? Was Colette sleeping under the bedspread?"
"A I think so, yeah."
"Q And Kris had crawled into the bed?"
"A Right."
"Q And she wet the bed?"
"A That's right."
"Q Now, at that time did you -- did Colette get up and pull the bedspread back and the sheet back to remake the bed?"
"A No."
"Q So, neither the sheet nor the bedspread was stripped off the bed at that time in preparation for remaking the bed?"
"A That's right."
"Q And what you did at that time was just pick up Colette -- I mean, not Colette, Kris, take her back to her room with her bottle, and tuck her in bed and leave the sheet and the bedspread back over the bed, is that it?"
"A Right, pushed away from the -- "
"Q In the main bedroom?"
"A Right."
"Q And Colette wasn't disturbed she didn't get up, she didn't bother she just stayed there?"
"A That's right."
"MR. WOERHEIDE: What number are we at now?"
"REPORTER: 29."
"(MacDONALD EXHIBIT 29, 1-21-75, MARKED FOR IDENTIFICATION.)"
"Q (Mr. Woerheide) This is a -- it's been referred to both as a towel and a bath mat. This has the name, 'Hilton' on it and was found in your house that morning over the body of Colette. Over the area below her waist. Can you recognize this as a -- as a -- resembling or at least appearing to be a bath mat that was kept in your house?"
"A Right."
"Q Where was it kept?"
"A Probably, usually -- if it wasn't in use in the hall closet."
"Q It was usually in the hall closet?"
"A I would guess if it was not in use. That's where the linen was kept, right."
"Q You didn't remember seeing it that night?"
"A No."
"Q You don't remember it was in the bathroom?"
"A No."
"Q Do you remember seeing it in the bedroom?"
"A No, it could have been one of the things that was in the green chair."
"Q And that you laid over Colette's body to keep her warm?"
"A (Nods affirmatively.)"
"Q Dr. MacDonald, I'm sort of skipping around here. Do you remember when you moved into the house you had to make some bed slats for -- to support the box springs on the bed."
"A No, not specifically."
"Q Well, do you remember that you did not make some bed slats?"
"A No, I could have made some bed slats. I don't know when I made them."
"Q Do you remember our showing you a club when you were here before?"
"A Right."
"Q Do you remember ever having seen that club before?"
"A No, I do not."
MR. BLACKBURN: Your Honor, at this point we are going to read from Volume II of Dr. MacDonald's federal Grand Jury testimony, which was taken in August, I believe, of 1974, under the same conditions as has already been noted by counsel; that is, the statements by Dr. MacDonald were made voluntarily, and during that five-day period -- he was, of course, warned of his rights at the first of that week, and that continued throughout all of his testimony that week.
We begin on page 299 and go through page 303 of Volume II of the federal Grand Jury testimony.
THE COURT: Proceed.
MR. BLACKBURN: At line 14 by Mr. Woerheide:
"Q All right, Dr. MacDonald, I show you MacDonald Exhibit number 10, which is a small kitchen knife. It has the name, Old Hickory, on it, and I ask you if you can identify this knife as one of the household knives of the MacDonald household?"
"A No, sir. I do not recognize the knife."
"Q Prior to February 16, did you ever see that knife?"
"A I did not."
"Q Are you positive that you never saw it?"
"A Yes, it seems to me I would remember it."
"Q It's not possible that Colette had gone out and bought the knife and put in the drawer and not said anything to you about it, and there it was?"
"A Sure, but you asked me if I had ever seen it, and I have never seen it."
"Q You don't recall seeing it?"
"A Right."
"Q You don't deny seeing it prior to that date if it was mixed up with a bunch of other knives in your drawer?"
"A I do not recognize this as a knife from my house."
"Q Well, let's say I brought in at this time a -- jumble of knives, forks, spoons, ladles, and other utensils that were in the drawer of your kitchen as of February 16. How many of them would you recognize?"
"A I have no idea, to be honest."
"Q Do you think you could recognize any of them specifically?"
"A Sure, silverware and things, sure."
"Q Now, when you mean silverware, you mean tableware or kitchen ware?"
"A Probably mean the table ware."
"Q Well, how about the odds and ends in the kitchen drawer, paring knives, the cutting knives, the chopping knives, the slicer, the -- "
"A I'm sure there would be some I wouldn't be able to recognize."
"Q Were the knives that were in the household returned to you as a part of the property that belonged to you that you took, as you took the pillows and various other things?"
"A I don't believe so. I believe the only thing returned was a set of -- a good set of silver."
"Q All right, now, MacDonald Exhibit number 11 is the ice pick and MacDonald Exhibit number 12 is the knife.
"They are in two separate plastic containers, and it's not necessary -- I'd just as soon not remove them, and they have been attached together, so I'll leave them attached together.
"And I'll ask you with specific reference to each of these, the ice pick and the knife, whether you recognize these objects as objects that were a part of your household furnishings?"
"A No, sir."
"Q Now, you will notice, Dr. MacDonald, that the knife is somewhat distinctive in the sense that it appears to have been bent.
"Do you recall there being a bent knife in your household?"
"A I do not."
"Q For the record, the knife has inscribed on the blade, 'Stainless, Geneva Forge.' And you'll agree that's a stainless steel knife?"
"A I presume."
"Q Well, let me ask you this: according to your recollection, did you have knives of the type of 'Old Hickory' knife and the 'Geneva Forge' knife in your house, the general type, the general appearance?"
"A The Old Hickory knife looks more distinctive. That's why I really don't recollect that. I don't believe that could be from the house. I think I would have remembered that.
"The Geneva Forge looks much more like a routine paring knife that we may have had, but I don't recognize it."
"Q Did you ever use a knife of this type as a pry bar to open something?"
"A No."
"Q You're strong, and I suppose if anyone were to use a -- an instrument of this type as a lever or pry bar, it would be Colette rather than you?"
"A Right."
"Q This looks like a relatively new ice pick. Had you bought an ice pick recently?"
"A No, I didn't."
"Q Well, do you recall having lost an ice pick?"
"A No, I didn't. I don't believe we had an ice pick. I've been asked that. We didn't have an ice pick as far as I knew of."
"Q You don't recall that there was an ice pick in the house?"
"A I don't think there was."
"Q Did Colette have any problem taking ice trays out of the refrigerator?"
"A Not that I am aware of."
MR. BLACKBURN: That would conclude that, Your Honor. We would then go to Volume II, page 344.
THE COURT: Would you just as soon go to lunch?
MR. BLACKBURN: I would prefer to go to lunch, Your Honor.
THE COURT: All right, members of the jury, today is the monthly bar association meeting, and the lawyers have expressed, on both sides, a desire to attend that meeting; so we will do the same amount of work but we'll just do it at a little different hour.
We will go to lunch now, and today we will come back at 2:20 -- 20 minutes past 2:00 today. That will give these gentlemen time to get to the bar association meeting and back, and to hear Judge Hobgood -- one of the finest superior court judges is scheduled to speak and they don't want miss that. And I'd like to hear it myself as a matter of fact.
So, we will take a recess until 2:20. Remember, don't talk about the case. Remember all those things I told you not to do, and don't do them. Come back today at 2:20, please.
(The proceeding was recessed at 12:38 p.m., to reconvene at 2:20 p.m., this same day.)
F U R T H E R P R O C E E D I N G S (2:20 p.m.)
(The following proceedings were held in the the presence of the jury and alternates.)
THE COURT: Good afternoon, ladies and gentlemen. Any further evidence for the Government in this case?
MR. BLACKBURN: Yes, sir, Your Honor. I would ask Mr. Murtagh to take the stand and continue.
(Counsel confer.)
THE COURT: All right, take the stand, Mr. Murtagh. I don't suppose there would be any use to swear him.
MR. BLACKBURN: Your Honor, I believe we said right before lunch this was from Volume II, page 344 of the federal Grand Jury section involving Dr. MacDonald, which took place in August of 1974.
Beginning now on page 344 at line 9:
"Q All right, now, when you say you went to the back door, the utility door itself -- the inner door itself was open, and the screen door was open, is that right?"
"A It seemed to be open. I don't think I even had to push it to look outside. That's why I say that. It just seems like the door was open, and I was standing there and I was looking around, and it was very quiet."
"Q All right, did you stick your head out the door?"
"A Yeah, I think I did. I think I got that far."
"Q How about the rest of your body?"
"A I don't think I was ever on the back stoop. I think I just leaned out the back door."
MR. BLACKBURN: That would conclude that particular reading. Now, going to Volume II, beginning at page 217, also in August of 1974, I believe beginning at line 13. At line 13:
"Q I wonder if you would -- I think we'd better number these various stopping points because some of these lines follow the same course. Would you mind putting one where you start at the bottom of the end of the hall there, and two by Colette's body which was the first stop; and three by Kim's body which was the third stop; four by Kris's body which is the fourth stop?"
"(Witness writes numbers on floor plan.)"
"Then you stopped in the hall, so that would be five; and stopped in the bathroom, so that would be six; and you went back to Colette and that would be seven."
"A Right."
"Q And now you went to the telephone; that would be eight. And you paused before you went out to the rear door, that would be nine. The rear door would be ten."
"(Witness writes numbers on floor plan.)"
"Q Now, let's take up the sequence from there, Dr. MacDonald, if you please."
"A I went back to Kimberly's room."
"Q All right, will you indicate that on that green line now?"
" (Witness writes on floor plan.)"
"Q And as I recall your testimony, you're not sure whether it was the first or the second time you gave her artificial resuscitation?"
"A Right."
"Q It was on one of these occasions?"
"A Right."
"Q And do you recall how long you stayed there?"
"A No, it seemed very brief."
"Q Once again you checked her pulse rate?"
"A Right."
"Q And you may have given her artificial resuscitation?"
"A Right."
"Q I take it you didn't move her?"
"A Only to the extent that possibly, if I did the mouth to mouth at this time, possibly lifting her up from behind the neck a little bit."
"Q Unh-hunh, now, from there you went once again to Kris's bedside?"
"A Right."
"Q Once again you examined her?"
"A Right."
"Q From there where did you go?"
"A Back out in the hallway."
"Q All right, sir, -- "
"(Witness draws on floor plan.)"
"A There."
"Q Did you stay there at all?"
"A It seemed like for a very brief minute trying to figure out what to do."
"Q Yeah."
"A I believe this is when I was thinking of -- should I go to the Kalins who are our neighbors or -- on this side, or should I retry the phone call?
"So I retried the phone call."
"Q Unh-hunh, and having made that decision you went down the hall again?"
"A Right."
"Q And cut across the dining room area -- "
"A Yeah."
"Q -- into the kitchen, is that correct?"
"A Right."
"Q And I take it the phone is in the kitchen right on the edge of the entrance?"
"A Right."
"Q To the right?"
"A Right."
"Q Now, as you passed through the living room area, what if anything did you observe? Did you make any observations with reference to -- let's say -- the overturned coffee table or any disorder or disarray in that room?"
"A None whatsoever. I don't remember seeing anything at all, noticing anything."
"Q You didn't make any attempt to straighten anything up or put any order in anything?"
"A Sir, I don't know. I don't remember that, no."
"Q Well, in the kitchen, besides making the telephone call, did you do anything?"
"A I'm not sure. I have a little tiny -- recollections of -- when I was telling you about washing my hands over here, it seems to me I was washing my hands on more than one occasion. So in reconstruction, when I was laying in the hospital trying to think of what was going on, I may have washed my hands here at this sink.
"But, I thought I washed my hands twice, that I was rinsing myself off twice. I don't know that. So it's conceivable that I washed my hands here, either before or after the phone call. I would think after."
"Q All right, well, since you're not sure of it, let's make a -- make a fourteen there and a dotted line instead of a solid line."
"A You mean over to the sink?"
"Q Over to the sink."
"(Witness draws on floor plan.)"
"Q And if you did wash your hands there, that would be number fifteen, right?"
"A Right."
"Q Do you remember getting anything out or putting anything away around the sink there at that time?"
"A No."
"Q You wouldn't have had any occasion to reach under the sink or reach into a drawer or reach into a cupboard or closet or anything of that sort?"
"A Not that I recollect, no."
"Q Now, do you have a recollection of your movements from point fifteen to the place where they found you?"
"A The actual movement or the -- "
"Q Yes."
"A I really don't remember going back down the hallway. It's not clear in my mind. I don't think of myself as walking down the hallway."
"Q Yes, all right, well, then, do you -- let's let you use your green marker and indicate approximately where you were at the time the MPs came in and you became aware of their presence."
"A Ah -- "
"Q I take it it's right where two and seven are -- "
"A Right."
"Q -- is that right?"
"A Right, right there."
"Q All right."
"A You want a sixteen on that?"
"Q Yes, just put a sixteen down underneath that."
"(Witness writes on floor plan.)"
"Q That's where you were?"
"A (Nods affirmatively)"
"Q Now, you say your body was more or less parallel to that of Colette, probably a slight angle, and your head was lying on her shoulder or side?"
"A Right."
"Q That would be her left shoulder or left side?"
"A Right."
"Q All right, and the next thing you recall there was an MP struggling with you and I take it that he would be right -- approximately where you marked the number sixteen?"
"A Right."
MR. BLACKBURN: That would conclude, Your Honor, the reading of that portion of the Grand Jury. We now would turn also to Volume II of the federal Grand Jury testimony, page 58.
And if you would, Mr. Murtagh, since that is entirely an answer, if you would begin at line 5 and read the rest of the page:
"A ... I never said I saw hippies. I never said that. Colonel Kriwanek said I saw hippies. I said I saw people. I saw a person with long blonde hair and a floppy hat on, and there was a light on her.
"And I never said I saw candles either. It was a light on her face, and I had the impression that there was something -- and I don't know if it was because it was kind of a -- you know -- wavering thing of an intermittent light or something, but I still think it was like candle-light -- you know -- it was an impression.
"It was in the midst of a dark room and over a period of ten to twenty to thirty seconds, and I never really saw her.
"I saw hair, I saw a face outline, and a hat, and that was it. That was all I saw, and while this was happening, Colette was screaming, and Kimberly was screaming, 'Daddy' -- this guy hit me with something I thought was a baseball bat."
MR. BLACKBURN: That would conclude the reading of that.
MR. BLACKBURN: Your Honor, at this particular point in the proceedings I would conclude our reading.
THE COURT: Very well.
(Counsel confer.)
MR. SEGAL: Your Honor, may we approach the bench?
B E N C H C O N F E R E N C E
MR. SEGAL: If Your Honor pleases, we think that there are other sections of this transcript the Government has to read, particularly at the last point the Government cut off. The subject went on right thereafter. Now, in order not to delay the proceedings, I just wanted to note that we will make a request later on. The Government has some further readings to do.
MR. BLACKBURN: We can do some more at a later time.
THE COURT: Anything that he wants read, he is entitled to have it read in fairness to him.
MR. BLACKBURN: A little while ago we thought the jury was going to go to sleep.
MR. SEGAL: We won't come up to the sidebar on that again, Your Honor. We just want us to understand each other.
THE COURT: Good enough.
(Bench conference terminated.)
Webmaster note:
The original stenographer's misspellings of Graebner and Kaylin were corrected to Grebner and Kalin, respectively, in this transcript.