Trial Transcripts
August 9, 1979
Shirley Green (FBI)
Scans of original transcript
(Whereupon, SHIRLEY GREEN was called as a witness, duly sworn, and testified as follows:)
D I R E C T E X A M I N A T I O N 12:35 p.m.
BY MR. MURTAGH:
Q Please spell your name for the reporter.
A The full name?
Q Yes, please.
A S-h-i-r-l-e-y G-r-e-e-n.
Q Ms. Green, what is your occupation, please?
A I am a physical science technician in the Microscopic Analysis Unit of the FBI Laboratory.
Q Okay, Ms. Green, could you either speak up a little bit, please, or lean towards the microphone. Let me ask you: have you ever testified before in court?
A No, sir.
Q Are you a little nervous?
A Yes.
Q How long have you been employed by the FBI?
A For over 28 years.
Q And in the Microscopic Analysis Unit?
A Over 25 years.
Q Now, let me ask you: what is your educational background, please?
A I received a Bachelor's degree with a chemistry major from McMurray College in Jacksonville, Illinois.
Q When did you get that, please?
A 1950.
Q 1950. Okay, have you taken any refresher courses since 1950?
A Yes; I have taken a few refresher courses in subjects relating to my work, including in-service --
Q (Interposing) Excuse me. Would you explain to the jury what the term "in-service" means?
A It's just -- we have refresher courses in the laboratory or courses to keep you informed of updated materials in the field.
Q Would it be accurate to say that "in-service" is the FBI's terminology for continuing education?
A Yes.
Q And where are these courses given?
A At the Bureau and also at the training academy down at Quantico, Virginia.
Q Do you attend any other seminars or lectures at all?
A Yes; when I have the opportunity, I try to.
Q Now, would you please tell us what the nature of your work is?
A Well, I examine evidence in federal cases concerning hairs, fibers, fabrics, and related items. I deal mainly with the identification and comparison of fibrous materials which includes the comparison and matching of fabrics, tapes, cordate, other related items; the stab holes, knife holes; other types of tears, cuts, stitching holes in fabrics.
I spend much of my time assisting the Special Agent Examiners in their examinations. I've spent a lot of time in the training of laboratory technicians and the Special Agent Examiners. I teach class at Quantico, Virginia, which concerns the identification and comparisons of textile fibers and fibrous materials.
I conduct some studies and prepare materials for use in the Microscopic Analysis Unit and at the fiber classes at Quantico.
Q What portion of your work day is devoted to this type of work, please?
A All of it.
Q Have you received any specialized training in this field in the FBI?
A For several years I worked in a trainee capacity under the qualified experts in the Microscopic Analysis Unit.
Q Is a fair amount or a great deal of clothing submitted to the FBI Laboratory for examination?
A Yes, sir.
Q And from what sources do these items of clothing come? Let me rephrase that. Are we talking only about Federal cases or State cases?
A From all over -- both Federal and State.
Q And is the FBI Laboratory available to any police department or investigative agency in the country?
A Yes; I believe we work both criminal and civil cases for the Federal government and U. S. attorneys and criminal matters for the state, county.
Q Could you give us some examples of your work involving the examination of holes, cuts, or tears in fibers, stitching and things like that in fabrics?
A Some examples of other cases, or different cases?
Q The types of cases, yes.
A The types of cases were, for instance, if a label patch or some sort of thing were torn from a garment, or a garment were torn apart at the seam, it is sometimes possible to positively identify one portion as having one seam stitched to the other portion.
This would be by aligning -- it would be from the pattern, the stitching holes, and of course, it would always help if you had a fragment of the other material, patch, or stitching hole on the other side to make a positive identification that way.
But sometimes it is possible to positively identify it from the stitching, but not in all cases. I remember one case where belt loops were torn from a garment and we could positively say that those belt loops came from that jacket.
Q How about bullet holes?
A Bullet holes -- we do the alignment. Sometimes they want to know if two garments were worn at the same time the victim was shot, and we can line up the bullet holes.
Q What two types of garments would you be talking about?
A Say a t-shirt or undershirt, plus another shirt, or a jacket over a shirt.
Q How many, if you can recall, approximately how many cases like this have you worked on in your 25 years in the Microscopic Analysis Unit?
A I would say thousands.
Q Ms. Green, directing your attention to the fall of 1974, were you employed then at the Microscopic Analysis Unit?
A Yes, sir.
Q If you could tell us, please, where was your particular desk or laboratory bench located at that time?
A I believe that was in the attic of the old building.
Q When you say "the old building," are you referring to the Department of Justice Building?
A Yes, sir.
Q Okay. Did there come a time in the fall of 1974 when Mr. Paul Stombaugh moved into your office space, so to speak?
A Yes, sir.
Q Did you assist him in any fashion, as an aside, in conducting laboratory examinations in this case?
A Yes.
Q Ms. Green, at this time, I direct your attention to the photograph there, which I believe is Government 787(a). Let me just hand it to you and let you take a look at it. Do you recognize that photograph?
A Yes.
Q Okay. Do you recognize the items depicted in that photograph?
A The Q12 pajama top.
Q Q12. Is that the pajama top?
A Yes, this pajama top.
Q And how about the probes?
A Yes, sir. Those probes, we had made up to demonstrate the alignment of the holes.
Q Okay, let me show you Government Exhibit 1140 and ask if you recognize that?
A Yes, these are the probes.
Q Did you either prepare those or were they prepared under your directions?
A Yes, sir. I believe we had someone make up the metal part and I added the paper tabs.
Q And are the numbers on those paper tabs your own?
A Yes.
Q Now, Ms. Green, with respect to the reconstruction, as it has been termed, depicted in that photograph, did you actually do that?
A Yes.
Q Do each one of the 21 probes pass through the holes as numbered on the little white tags?
A Yes.
Q Would you place that on the easel, please?
(Witness complies.)
MR. MURTAGH: Your Honor, at this time, we would mark Government Exhibit 1142.
(Government Exhibit No. 1142 was marked for identification.)
BY MR. MURTAGH:
Q Ms. Green, let me show you Government Exhibit 1142 which is a chart, also containing a photograph -- an enlarged copy -- of which is in evidence. 764(c), I believe, is the one that is in evidence. This one contains 764(b). Yes, that is correct. 764(c) is the one that is in evidence.
Now, Ms. Green, let me ask you what this chart reflects?
A This shows the patterns, the holes in the pajama top --
Q (Interposing) Let me just interrupt you there. With respect to this chart, let me describe, if I may further, that the chart has various numbers which appear to go from 1 through 48; is that correct?
A Yes.
Q What do those numbers correspond to?
A Those numbers correspond to the puncture holes in the pajama top.
Q Are the puncture holes represented by a dot next to the number?
A Yes.
Q And are they depicted accurately on this chart, with respect to Q12, the pajama top?
A Well, it isn't drawn exactly to scale. It is an estimate as far as the pajama top itself, but it is pretty accurate as to locations.
MR. SEGAL: Could we have it marked on the chart that it is not to scale, then, please?
THE WITNESS: No, it is not exactly to scale.
THE COURT: The record will show that.
MR. SEGAL: All right, Your Honor.
BY MR. MURTAGH:
Q With respect to the numbers, are there little arrows appearing?
A Yes.
Q Let me say to you, with respect to the numbers 1 through 12; are those color-coded in any way for the record?
A Yes.
Q And how about, it looks like 13 is the lowest number and 45 is the highest number; and are they color-coded?
A Yes.
Q Okay. And how about this group of three up here, 30, 31, and 32; are they color-coded?
A Yes.
Q We have another group over here which the low number is 20; is that color-coded?
A Yes.
Q We have a last group here -- excuse me, the next to the last group -- in which the low number is 18; is that color-coded?
A Yes.
Q And we have a single hole up here, and by "up here" I am referring to, I believe it has been described as the upper left shoulder area of the back of the left sleeve, that is 48?
A Yes.
Q Now, Ms. Green, in aligning, in doing this reconstruction, what relationship does the color coding of the numbers as presented in the chart have to the way these probes were aligned in the pajama top? Do you understand my question?
A I am not exactly sure.
Q With respect to one group, which is color-coded in red, and specifically within that group, with respect to numbers 1, 2, and 3, what relationship did those holes have to each other?
A One, two and three would align up to make one thrust.
Q I see. And if I can find that on this other chart here, you have the flag number 21 and below that the numbers 1, 2, and 3.
A Yes.
Q So, my question is: does this Chart 1142 reflect the location of the holes 1, 2, and 3 as depicted on Government 787 by probe 21?
A That's right.
Q Did you fold those holes in that fashion?
A Yes.
Q And did you put a probe through?
A Yes.
Q Now, let's take another group -- 4, 5, and 6 -- and you did the same there?
A The same thing.
Q How about 10 and 8?
A Yes; the same thing.
Q Is that the same with respect to all of these groups in which you see an arrow?
A Yes.
Q Now, and I take it you folded the pajama top in what fashion?
A It was folded with the right sleeve folded inside-out, the inside of the pajama top facing upward, the right collar area over to the right, which would be to the victim's left, according to how you are looking at it -- over to the right, and the right shoulder seam is over to the right, and the rest of the sleeve is coming over to the left.
Q And in this fashion, were you able to align all 48 holes?
A Yes.
Q Now, let me draw your attention here to Government Exhibit 764(b), the small photograph which appears on Government Chart 1142. Let me turn this around a little bit, and ask if the jury can see that. Now, with respect to the color-coded areas as represented on the pajama top that is depicted on the chart, is there a relationship to the numbered areas on the photograph which is in evidence as the chest of Colette MacDonald?
A Yes.
Q And what is that relationship, please?
A Well, all of the holes in the left center area of the back panel --
Q (Interposing) Would you please come down and point to the areas? Let me find the pointer.
A The holes in the center or the left of center area of the back panel --
Q (Interposing) Would you describe the color for the record, please?
A With the colors in orange would correspond to these five holes marked orange, numbers 17 through 21.
Q Now, let me ask you: would it be accurate to say, then, that holes 1 through 12 --
A (Interposing) Yes.
Q -- can be aligned with five probes?
A That's right.
Q And the grouping that you get when you align them, in other words?
A The grouping is pointed out by the orange circles around the holes here. Those would be the bottom holes.
Q I see.
A So, when you come through 1, 2, and 3, you end up at 3 on the bottom, and so these -- 3, 6, 7, 8, and 9 holes in the pajama top would form 17, 18, 19, 20, and 21 in this picture.
Q Okay, now, Ms. Green, let me ask you: did you start from the bottom hole up or from the top hole down, if you know?
A To put the probes in?
Q Yes.
A From the top hole down.
Q In putting probes through, did you force any of them?
A No; these --
Q (Interposing) You are talking about 1140?
A Yes; these probes were approximately the same diameter as the holes in the pajama top so that they could be put through without forcing them. These are a little smaller probably than the ice pick -- the largest part of the ice pick.
Q Now, okay, so that was done with the group in orange as you described it. How about the group in -- is that yellow -- on the chart?
A Yes.
Q And would you point out the corresponding area to the photograph of Colette MacDonald's chest?
A It would be these --
Q (Interposing) Would you describe the numbers for the record?
A It would be number 8, 9, 10, 14, and I believe a number's been left off here which should be 16.
Q Why don't you put that in here in pen?
(Witness complies.)
Q And did you do the same with respect to each group?
A Yes.
Q Now, please resume the stand.
MR. MURTAGH: Your Honor, at this time, I wonder if I might move this over so the jury may see it a little better?
THE COURT: Very well.
(Exhibit shown to the jury.)
THE COURT: Maybe you should do a third showing down here because these jurors could not see it.
MR. MURTAGH: Yes, sir.
THE COURT: This seems to me to be a good breaking point to go to lunch. We will let the jury retire, and we will come back at our regular hour of 2:30 this afternoon. Members of the jury, now don't talk about the case.
(Jury exits at 12:57 p.m.)
THE COURT: All right, let's take a recess until 2:30.
(The proceeding was recessed at 12:59 p.m., to reconvene at 2:30 p.m., this same day.)
F U R T H E R P R O C E E D I N G S 2:30 p.m.
(The following proceedings were held in the presence of the jury and alternates.)
MR. BLACKBURN: Your Honor, before we begin, may we approach the Bench?
THE COURT: That's a good way to start this afternoon; come on up.
B E N C H C O N F E R E N C E
MR. BLACKBURN: Your Honor, it has come to the Government's attention that the advertisement which you had ruled upon concerning these four alleged intruders has run again in today's paper in both the morning and the afternoon paper in Fayetteville.
The first time this was done, we did not make an issue out of it in court because we thought we would leave well enough alone, and just not muddy the water.
THE COURT: I had understood it would be run only once.
MR. BLACKBURN: This is the second time this had occurred. We believe, as Mr. Segal told the court, I remember, one time, after the jury had left, that the first artist was not the same as the second artist. We know who the first artist was, but he is not the man who did these latest drawings.
We thought we would bring it to the court's attention that we think the running of these advertisements is in direct contradiction of an order of this court.
MR. SEGAL: Your Honor, I am not under the impression -- and we've talked about this -- that after we had that hearing that Your Honor was prohibiting us from running them. I would say, Your Honor, we always had the intention of running it twice. We had the procedure to run it a Thursday and a Sunday.
THE COURT: How did I get the impression it would on be run once?
MR. SEGAL: I beg your pardon?
THE COURT: How did I get the impression it would only be run once?
MR. SEGAL: I am not sure.
THE COURT: Something Wade Smith said? I am pretty sure he was the one that said it.
MR. SMITH: If Your Honor pleases, that is not my recollection about it. He may have said that.
THE COURT: I was also under the impression that some kind of final clearance was going to be obtained before it was run the first time, but maybe my recollection is faulty about that.
MR. BLACKBURN: That is correct. We believe that the first time it was run was in contradiction of that order of the Saturday preceding court. The Government chose not to make an issue out of it since it was stopped.
THE COURT: There are two things involved as I see them. First, what is the duty and responsibility and authority of the court to prohibit such a thing.
MR. BLACKBURN: Well, as we told the court, on the Saturday preceding the Monday that court began, that we would object, of course, to the introduction of those photographs without a qualifying witness who would authenticate those.
We were simply asking that we be given --
THE COURT: (Interposing) I understand -- you mean these drawings?
MR. BLACKBURN: Yes, sir.
THE COURT: That somebody is going to seek to introduce those in evidence?
MR. SEGAL: If and when that should happen.
MR. BLACKBURN: Your Honor, it happened at the Article 32.
MR. SEGAL: They would be authenticated if we do that, Your Honor. I don't know what the advertisement has to do with what we offer in court. Certainly we will try to do whatever is necessary to authenticate them, if I think it is necessary to use them.
THE COURT: You will tell them who the artist was?
MR. SEGAL: Certainly.
THE COURT: Just tell him right now who he is.
MR. BLACKBURN: We want the name and address of the artist.
MR. SEGAL: If we decide to use them in court, that is our position. At this point, I will tell you, it is not at all certain that we will do that.
THE COURT: Well, he needs to know in advance. If you decide at the last moment, and say, "Okay, I am going to do it," then the name and address won't do him any good. He will get that from the record when you ask him the question.
What is the objection to telling him right here and now?
MR. SEGAL: I wrote to Mr. Blackburn a letter fully stating what our position was. I would be glad to give him the name and address, which was in the letter I wrote a week and a half ago. But this man was my employee, and under the attorney-client privilege that he was not free to interview him unless he had my permission to do it.
THE COURT: He has not said anything about interviewing him.
MR. SEGAL: I wrote him that letter a week and a half ago.
THE COURT: Well, he doesn't have the name and address. He just wants the name and address.
MR. BLACKBURN: The reason I did not raise it again was because the ad had not been run again. But now the ads have been run again and that is, in our opinion, a direct contradiction of the Judge's order.
MR. SEGAL: There are two separate issues here. One is whether you think the ad and I think the ad is in contradiction to the Judge's order. That is one issue we can discuss, if you like. My recollection is that Your Honor, when Mr. Smith said it at our Saturday pre-trial conference held on the 13th, "Your Honor has banned us from doing that," you said, no, you had not done that. You were very specific.
THE COURT: I believe I either said this or I would have ruled if there had been any suggestion that you were going to do it in advance of the selection of the jury, I would have prohibited it.
MR. SEGAL: That's right; I agree with that.
THE COURT: Just like I put a damper on these press conferences -- which at least you, maybe you do too, maybe; I know all of you have been quoted in the paper -- prior to the trial.
MR. SEGAL: We agree to that.
THE COURT: Now, I am having some problem with that as to whether or not that comports with the professional responsibility requirements. For whatever it is worth, I say this to both of you: when lawyers give interviews with the press, it has been my observation over the years that lawyers who are entirely confident of their position and who believe in the correctness of their cause, eschew that kind of thing.
To me, it just telegraphs some weakness. As far as the jury is concerned, I am hoping that they are observing their oath and are not reading anything. Now there is always the possibility, though, that they will, therefore I find that while I don't want to muzzle anybody, I don't see why we can't stick to our knitting there in the Courtroom and let the press hear and see everythign that I do. That is all that I see and hear and read about it.
I don't give a damn what appears in the paper, myself. But when it is on the front page, they can't escape it. They had on yesterday's front page quotations, verbatim, as to how the defense was going to destroy some witness -- this Stombaugh, probably, and all that stuff.
Of course, as far as the ad is concerned, I don't know whether you were present or not, but just the way it struck me as being an exercise in futility; it must have some background value other than the prospect that somebody would ever turn up this late date that would know anything about this, who would not be subject to be utterly destroyed by a competent cross-examination.
But here again, I don't run lawsuits for them. I sat out there 34 years and I saw a lot of judges that came to town and professed to know more about my case in two hours than I had been able to learn in three or four years of living with it. So, I wouldn't do that.
I will let you run your case, but for whatever it is worth, I'll say to both of you that I think that running ads and talking to newspapers while the trial is in progress as to what you are going to do with your evidence and so forth, I think it may come very close to transgressing the rules of professional responsibility in insuring a fair trial for both sides.
Here again, I don't want to drag up an issue. We have enough dead dogs that we have beat in this case already, and I don't want to do that. But for whatever value, if any, that it may have, if you are interested in knowing how this court feels about it -- I have just told you.
MR. SEGAL: I, for one, appreciate what Your Honor says and then I do not take what Your Honor says lightly, by any means. I want to just make two fact representations, Your Honor.
It has always been our intention, because of my prior experience with this case, to run the ad in the Fayetteville newspaper only twice, because we knew that there were things to be learned. I will tell Your Honor that in fact, running the ad has produced material matters for us which will, in due course, come out in court.
I am also aware that when facts come out late, one may question it. In each and every instance, the explanation why, in my own judgment, is worthy of the jury to decide whether they think it is credible or not. So I don't apologize for people coming up late in the day. There are very good reasons.
Secondly, the ad in itself says nothing more than that it wants information about these people who resemble this in connection with the 1970 murders. It does not say anything beyond that. It gives the name of our investigator, and that is all that it asks.
Because we did, in fact, develop some information that is very valuable, we want to complete -- we were advised by those who have better knowledge than I do that the two insertions would be valuable. That is what we have done.
I do not have any reason at all to believe that we will be running beyond -- it is in Thursday's paper, whatever paper it is now. That is the last time because we are now too close to the defense case. We won't have the energy to pursue anything beyond that. We are following all the leads we have got.
Now on the second matter, in regard to any press conferences -- I appreciate what Your Honor says. We tried, through the pre-trial, to honor and respect that.
We do get lots and lots of inquiries here in court and papers.
THE COURT: I used to get a lot. But I don't get any anymore. And the simple answer is this: I do not give press interviews. I do not hold press conferences. You are welcome to come; sit as close to the front seat as you can at the witness stand, and report verbatim everything that comes from anybody's lips in this courtroom.
It is public information. They can have it and do whatever they want to. If I am good, indifferent, or stupid, and they want to report it, as long as I am here in this courtroom, they are going to do it. But, I am not talking to any of them afterwards.
One young fellow hollered at me out here the other day and I stopped and explained it to him. He was from New York. I said, "Perhaps you didn't know." He said, "Yes, I did know it; but I have to tell my managing editor, or somebody, that I tried."
I said, "You tell him that you made a nice try, but with the same results."
MR. BLACKBURN: Before we go, our concern is not running the ad again, but we did think --
THE COURT: (Interposing) If it is already run, that is a fait accompli.
MR. SEGAL: I should tell you about that. Mr. Blackburn had been willing to give Mr. Smith and I advance notice in several instances several days in advance of any witnesses. We will most assuredly reciprocate fully and completely in that regard. We will give them advance notices of our witnesses so they can get ready and don't have to run around like chickens with their heads cut off.
I will tell you, as a matter of fact, at the end of today, who our witnesses will be tomorrow.
MR. BLACKBURN: Our only concern in bringing this to the court's attention was not to beat a dead horse, certainly, but just for the record to indicate that we still had not gotten the police artist.
THE COURT: If you don't get a conviction, maybe you can appeal.
MR. MURTAGH: One other matter. The Government, at this time, would renew, or reassert, its motion on the psychiatric testimony on the issue of whether it comes into the case or not.
THE COURT: Well, now there is a motion outstanding in writing on that, that has never been ruled on. Is it probable that we will reach that this afternoon?
MR. MURTAGH: Your Honor, we are at a juncture where if the psychiatric testimony is not going to come in, then perhaps we might rest either late this afternoon or early tomorrow morning.
If it is going to be an issue in the case, and to date the Government has offered no expert testimony that this guy is the type of defendant who would commit that type of crime --
THE COURT: (Interposing) How long do you think you will go this afternoon? I can't see getting through with this witness before 5:00 o'clock. Mr. Segal might have two questions to ask her.
MR. MURTAGH: I don't know.
MR. SEGAL: I do have some questions, but it will not in any way be as long as Mr. Stombaugh, Your Honor.
MR. BLACKBURN: What we are getting at, Your Honor, we would like if possible to either have a ruling or a hearing or something on that question prior to the Government's resting its case.
THE COURT: I will do that for you, but maybe I want to hear some more about it. What we can do is to go as far as we can this afternoon. Let the jury go home, and then I will hear you until suppertime.
MR. MURTAGH: Your Honor, the logistical problem that is involved is the defendant was examined by army psychiatrists in 1970. He was not examined by forensic psychiatrists, and we anticipate that since he was examined by a forensic psychiatrist for the defense, that that would be an issue.
We are prepared to offer testimony both from the army psychiatrists and from forensic psychiatrists and psychologists. However, the forensic psychologist tells us that the Rorschach Test that MacDonald took in 1970, for the Defense -- which was furnished to the Army -- is inadequate.
I don't know the specifics, but apparently he didn't react to the ink blots or whatever. In that regard, Your Honor, if psychiatric testimony is going to be offered by the defense, we would move the court to order the defendant to submit after court, perhaps on Monday, to any and all psychiatric or psychological tests.
I don't think it would be lengthy, they are what the experts would require.
MR. SEGAL: May I make a suggestion, Your Honor?
THE COURT: You are not going to offer any such evidence as that?
MR. SEGAL: That Rorschach test?
THE COURT: You are not going to offer any psychiatric evidence?
MR. SEGAL: We may, Your Honor.
THE COURT: You may.
MR. SEGAL: I have ample authority on the point. Let me make a practical suggestion. If the Government is concerned that somehow, because we may offer this testimony in this case, that somehow that has placed the burden on them in their case-in-chief to put on something to the contrary.
I will be glad, at the conclusion of today, in the presence of the defendant and with his acquiescence, to put on the record a waiver of any obligation of the Government to produce in their case-in-chief any such evidence.
I have here a substantial memorandum of law on our right -- if we decide to go ahead with that -- to produce it. It is not something Your Honor can rule from the Bench. There are at least three different possible grounds that if we do it, Your Honor has to consider our right to do it.
But at the immediate point, we would like to get to the point where we can close the Government's case because we have witnesses waiting. We cannot hold them indefinitely. To have an argument on a legal motion when we have been told repeatedly the Government is going to finish this week and we have got to put people on who have been sitting around, Your Honor, it seems to me is the wrong way to do it. As I said before, I am certainly agreeable -- I don't think the Government has any burden in its case-in-chief in this regard.
MR. MURTAGH: Your Honor, we just don't think the testimony is admissible. Period.
THE COURT: Okay, but his suggestion is that you can resume your case-in-chief even after he has put it on, rather than having to come just from a rebuttal standpoint.
MR. MURTAGH: Yes, Your Honor. If we have to do it, that is something we can live with. It does not change, Your Honor, the fact that if there is going to be psychiatric testimony, we have got to have him examined at the earliest possible time.
MR. SEGAL: Then make a motion in writing, for God's sake. These are serious questions. Why don't you put it in writing with some authorities for it? I want to see what the result is, Your Honor. I may agree or may disagree. I won't know until I see it and read it.
MR. MURTAGH: Your Honor, the authorities cited in our original written motion as to why this should not be an issue in the case, we would stand on. Now, if it is to be an issue in the case, the court has ample authority to order the defendant to submit to psychiatric testing.
THE COURT: Well, you would not contest that, would you?
MR. SEGAL: That what, Judge, that they have a right to have him examined? I want to think about it, Your Honor. I probably would agree with it, but I will want to think about it and talk to Wade Smith about it.
THE COURT: I think you ought to just go on and set up and prepare to have him examined at the first available time.
MR. MURTAGH: Your Honor, we will bring our people down Monday if the defendant will be available.
MR. SEGAL: I don't think he is going anyplace else.
MR. MURTAGH: I don't want to get them here --
MR. SEGAL: (Interposing) Why don't you talk to us about planning it, if you want to do that. But I do suggest -- please put it in writing.
(Bench conference terminated.)
THE COURT: All right, I think we have had the jury long enough while we talk about procedural matters and things. These are not matters with which you are in the slightest concerned. They have to do with scheduling more than anything else, members of the jury.
What I am going to do is let you hear testimony of the stuff you are interested in. If I have to hear any more of that, I will let you go home and you won't have to wait around. That is the way I will resolve this issue.
MR. MURTAGH: Your Honor, we have some more questions for Ms. Green.
THE COURT: All right. You would not limit it to just two, would you -- I mean, two of your kind.
MR. MURTAGH: Two of my kind, with A's and B's; yes, sir.
(Whereupon, SHIRLEY GREEN, the witness on the stand at the time of recess, resumed the stand and testified further as follows:)
D I R E C T E X A M I N A T I O N 2:50 p.m. (resumed)
BY MR. MURTAGH:
Q Ms. Green, I believe before the break, or luncheon recess, rather, I had asked you with respect to Government chart 1142 whether this was the methodology you used, as illustrated graphically on this chart, in doing the reconstruction which is illustrated in Government 787(a); do you remember that?
A Yes.
Q I believe you testified that it was, is that correct?
A Yes, that is correct.
Q Have you ever had occasion to redo this reconstruction at any time?
A Yes.
Q Did you employ the same realignment procedure in redoing the reconstruction?
A Yes.
Q The same probes through the same holes?
MR. SEGAL: May I ask a suggestion that he not lead this witness. We are here to hear this witness' direct testimony.
BY MR. MURTAGH:
Q Were you ever able to align all 48 holes, or all the holes in the pajama top, with 21 probes going through any other holes? Do you understand my question?
A Yes. No, I was not. It could probably over --
MR. SEGAL: I'm sorry, I couldn't hear your answer.
THE COURT: Yeah, you will have to talk a little louder, please.
THE WITNESS: I'm sorry. It took over a week just to find one solution, to find this solution.
BY MR. MURTAGH:
Q Did you ever find another solution?
A No.
MR. MURTAGH: Your Honor, at this time we would move in Government 1142 and ask that it be received.
(Government Exhibit No. 1142 was received in evidence.)
MR. MURTAGH: Your Honor, we would also offer the smaller photograph on the chart, 764(b).
THE COURT: All right, sir.
(Government Exhibit No. 764(b) was marked for identification and received in evidence.)
MR. MURTAGH: Your Honor, at this time we would mark Government Exhibit 1070, which consists of a series of eight photographs which we all also offer enlargements of.
(Government Exhibit No. 1070 was marked for identification.)
BY MR. MURTAGH:
Q Ms. Green, let me show you Government Exhibit, marked for identification as 1070, ask you if you recognize the photographs on that chart?
A Yes.
Q Okay, and with the pointer, would you please step down and tell us what photograph one depicts?
A Photograph number one is where I realized the 48 holes of the pajama top, with 21 thrusts -- I believe using pushpins with numbers on the tops, and forming the 21 holes on top of this box with graph paper over it.
MR. MURTAGH: Your Honor, at this time the Government --
THE COURT: (Interposing) One moment, please. We have a volume trouble with your back turned to him, Ms. Green. You must talk a little louder. It is all right to look at what you are talking about, but just get the volume up some. He has to take it down.
THE WITNESS: Okay.
BY MR. MURTAGH:
Q Ms. Green, would you repeat your answer for the reporter?
A Photograph number one is the pajama top, refolded in the manner in which it was found on the victim, placed over a box with a piece of graph paper on it, with 21 pushpins put through, making 21 thrusts into the box.
Q Now, Ms. Green, would you describe with respect to the left and right sleeves of the pajama top which portion is where in photograph number one?
A The left sleeve is coming out here on the side with the left panel. The right sleeve -- shoulder -- is right in here, and the right sleeve is going down here to the cuff.
Q Is the right sleeve right side out or inside out?
A Inside out.
MR. MURTAGH: Your Honor, at this time the Government would mark Government Exhibit 1143 which consists of 21 pins numbered sequentially; Government 797, a box with a piece of graph paper on it; Government 798, an additional piece of graph paper and Government 1144, an additional group of 21 pins.
(Government Exhibits 1143, 797, 798 and 1144 were marked for identification.)
BY MR. MURTAGH:
Q Ms. Green, let me give you Government Exhibit 797 and ask if you recognize it?
A Yes. This was the box.
Q Okay, which box are you referring to?
A This is the box which I pinned the pajama top to in photograph number one.
Q There appears to be some writing by the exhibit tag. Could you tell us what that is, please?
A This is the Laboratory number, PCL-208-2-JB-Q12.
Q Does Q12 refer to Government Exhibit 101?
A Yes, it does.
Q Let me give you Government Exhibit 1143, and ask you if those are the pins?
A Yes, these are the pins that I put through the pajama top.
MR. MURTAGH: Your Honor, at this time the Government would move to admit Government Exhibit 797 and Government Exhibit 1143, and ask if we may pass them to the jury.
THE COURT: Very well.
(Exhibits passed among the jury.)
(Government Exhibits 797 and 1143 were received in evidence.)
MR. MURTAGH: Why don't you resume your seat, please? Your Honor, may it please the Court, at this time we would mark, while the jury is looking at the exhibit, Government 789(a) which corresponds to Photograph number one on the chart; Government Exhibit 790(a) which corresponds to Photo number two; 791(a) which corresponds to Photo three; 793(a) which corresponds to Photo four; 794(a) which corresponds to Photo five; 796(a) which corresponds to Photo six; 792(a) which corresponds to Photo seven and 795(a) which corresponds to Photo eight.
(Government Exhibits 789(a), 790(a), 791(a), 793(a), 794(a), 796(a), 792(a) and 795(a) were marked for identification.)
MR. MURTAGH: Your Honor, at this time we have offered Government Exhibit 789(a) and seek to publish it.
THE COURT: Very well.
(Government Exhibit 789(a) was received in evidence.)
(Exhibit passed among the jury.)
BY MR. MURTAGH:
Q Now, Ms. Green, for the record, with respect to the graph paper on which you placed the pajama top and put the pins through it -- did the pins puncture the graph paper?
A Yes.
Q Did they leave a pattern?
A Yes.
Q Are there any puncture holes that were not made by the reconstruction using the 21 pins?
A In the graph paper?
Q Yes.
A No.
Q Okay, now. With respect to Government's Photo number two up there, which I believe, for the record, would be Government Exhibit 790(a). Maybe for the benefit of the jury, we could hold these up as you are talking. Do you recognize the photograph which appears in that photograph?
A Yes. It is a photograph that Mr. Stombaugh marked the numbers of the puncture holes.
Q Ms. Green, could you speak up a little bit, please?
A I'm sorry. The photograph in this picture is the photograph which Mr. Stombaugh marked with numbers the 21 puncture holes in the victim's chest.
Q Let me hand you Government Exhibit 786 in evidence and ask you if that is the same photograph.
A Yes.
Q And are there 21 areas numbered in that photograph?
A Yes; there are.
Q Would you tell us, please, with respect to the left and right areas of the chest depicted there, what numbers appear or how many numbers?
A There are five numbers on the left chest area and 16 on the right.
Q Now, I take it -- what did you do with respect to that photograph that appears in that photograph? Do you understand my question?
A Well, in this particular photograph, it was just laid beside this for -- to see the comparison.
Q Would it be accurate to say that photo number 1 and photo number 2 are exactly the same with the exception that photo number 2 has that additional photograph of the victim's chest?
A Yes.
Q And could you tell us, please, what photograph number 3 is?
A Number 3 would be the same thing as this last one with the exception of a different photograph of the victim's chest.
Q Okay.
A An unmarked one.
Q All right, now, with respect to -- is that 764(b)?
A This photograph here?
Q Yes.
A Yes.
Q Now, with respect to Government photo number 4, what did you do there, please?
A I took the pajama top off of the box and placed the pins back into the holes that I made so that it just shows the pins -- the numbered pins -- from the pajama top placed next to the photograph.
Q Now, let me ask you: are the numbers which appear in photo number 1 -- that is, the numbers appearing on the pins -- the same numbers which appear in photo number 4?
A Yes.
Q Now, would you tell us, please, what photograph number 5 depicts?
A That has the same pins from the pajama top in the box, and pins have been placed through the puncture holes in the pictures of the victim's breast to show the two patterns.
Q Now, let me hand you Government 1144 marked for identification and 798 marked for identification and direct your attention to the photograph 764(b). Now, would you explain, please, what the relationship of those three objects is?
A This is the piece of cardboard with graph paper on it that I put the photograph on to put these pins through the photograph at the puncture areas.
Q Now, let me ask you: is the scale the same as between Government Exhibit 764(b), photograph of Colette MacDonald's chest, and the scale in Government's photo 1 appearing on that chart, the reconstruction of the pajama top?
A No; they are not.
Q All right, now, would you tell us, please, with respect to -- perhaps if we could skip down to photograph number 8 -- would you tell us what that is?
A That is the cardboard and the pushpins that were where the photograph is pinned to this, and the photograph removed, the pushpins remaining in the areas -- in the holes.
Q For the record, when you say "this," are you referring to Government Exhibit 798, the piece of cardboard?
A Yes; Government 798 and the pins Government Exhibit 1144.
Q And did you take those pins and after you removed the photograph, placed them in the same holes?
A Yes.
Q And do the numbers correspond?
A Yes.
Q All right, let me show you -- and if you would, perhaps, show to the jury Government 795(a). Are you holding that photo right side up?
A Yes.
Q And would you describe, please, what appears on the left side and the right side of the piece of graph paper?
A There are five holes in the left side and 16 holes in the right side.
MR. MURTAGH: Your Honor, the Government would move in 795(a) and ask to publish it to the jury.
THE COURT: Very well.
(Government Exhibit No. 795(a) was received in evidence.)
(Exhibit passed among the jury.)
BY MR. MURTAGH:
Q Now, Ms. Green, with respect to photograph number 7, let me ask you: is that the same piece of graph paper as depicted in photograph number 4, less the insertion of an additional photograph?
A Yes.
Q You didn't realign the pins?
A No.
Q And is that the same as 792(a)?
A Yes.
Q All right, now is that photo -- if you might describe for the record -- appearing in the bottom part of the graph paper is the laboratory number in Q-12. Now, you just turned the photograph upside down as far as the writing is concerned. The question is: is the photograph right side up as it relates to the reconstruction?
A It is now right side up with the writing upside down.
Q Okay, it's perfectly clear.
MR. MURTAGH: Your Honor, at this time, we would turn this back so that we can read it and offer 792(a) in evidence and ask to publish it.
THE COURT: Very well.
(Government Exhibit No. 792(a) was received in evidence.)
THE COURT: Right side up or down?
MR. MURTAGH: Judge, I'll let the jury hold it any way they want.
(Exhibit passed among the jury.)
BY MR. MURTAGH:
Q Okay, now, with respect to photograph number 8 -- I'm sorry -- 6, what does that photograph depict?
A That shows both of the -- the cardboard box and this cardboard -- I don't remember the exhibit number of the box -- this exhibit number 798 which is the cardboard from the photograph with the pins in the holes.
Q Does it also depict 797, the piece of graph paper with the identifying number Q-12 on it?
A Yes.
Q Now, the two are placed side-by-side in the photograph?
A Yes; they are.
Q And are they right side up in relation to each other?
A Yes; I believe they are.
Q And let me show you Government 796(a) and ask you if that --
A (Interposing) Yes; this is the same photograph.
MR. MURTAGH: Your Honor, at this time, the Government would move in 796(a), 793(a), 791(a), 794(a), 790(a), and ask to publish them to the jury.
THE COURT: Very well.
(Government Exhibit Nos. 796(a), 793(a), 791(a), 794(a), and 790(a), were received in evidence.)
(Exhibits passed among the jury.)
MR. MURTAGH: And, if I have not already done so, let me move in Government 798, 1144, 1143, and 797, and 789(a).
(Government Exhibit Nos. 798, 1144, 1143, 797, and 789(a) were received in evidence.)
BY MR. MURTAGH:
Q Now, Ms. Green, with respect to the two pieces of graph paper, the one from the photo and the one from the reconstruction of the pajama top, and as depicted in photo number six on the chart, which is the Government Exhibit 1070, are the scales the same?
A Of the graph paper itself?
Q Yes, is the graph paper scale the same?
A Yes.
Q Are the scales the same as between the photo reconstruction and the pajama top reconstruction?
A I'm not sure if I understand, but the scale would be the same as -- with the photograph after it was done, but the photograph is reduced size as to the actual size of the victim's chest; so there's a difference as far as actual size.
Q Now, Ms. Green, did you observe any grouping with respect to the pins that were placed in the photo reconstruction -- well, first with respect to the photo reconstruction?
A Is there a grouping?
Q Yes, could you describe any grouping that appears in the photograph, perhaps using the pointer?
A There is a -- from the photograph, there is a grouping of five holes over to the left. There is a group of 16 over to the right. Within this grouping there is always a grouping of -- three certain ones always seem to group together.
MR. SEGAL: Your Honor, I am not hearing what the witness is saying.
THE WITNESS: There is a grouping of three to the left and 16 to the right, and within this grouping there are smaller groups.
BY MR. MURTAGH:
Q Ms. Green, with respect to -- would it be accurate to say there is a sub-grouping on the right grouping, is that correct?
A Yes.
Q Okay, what are the numbers of that sub-grouping?
A Holes 1, 2, and 3 always come in together as a group of three.
Q Okay, now, you are pointing to the photo reconstruction?
A Yes.
Q Okay, does that same sub-grouping appear in the pajama top reconstruction?
A Yes, it does; 1, 2, and 3 are together.
Q Are there any other groups which are common to the -- or subgroups, rather, which are common to the photo reconstruction and the pajama top reconstruction?
A Holes 4 and 5 area always exactly -- or very close together; and 6 and 7 are fairly close to those, making a group of four.
Q And does that appear in the pajama top reconstruction as well?
A Yes, 4 and 5 are close together, and 5 -- 6 is fairly close; 7 is slightly further away but close. Do you want me to go through any others?
Q Well, if there are any others that you see there?
A There's the group 11, 12, and 13 -- those three together, and they are together up in here on -- from the pajama top.
The -- 7, 8, 9 and 10 -- 8, 9, and 10 -- we have already covered 7 -- but they are together in a line fairly close together in both of them; and the numbers 14, 15, and 16 fall below the other groups in both of them.
MR. MURTAGH: Your Honor, at this time that concludes direct examinaion. Counsel may cross-examine.
THE COURT: All right.
C R O S S - E X A M I N A T I O N (3:15 p.m.)
BY MR. SEGAL:
Q Ms. Green, the picture that is now up on the easel, that is a picture of a project you worked on in 1974, is that correct?
A Yes.
Q And may I ask, who gave you the instruction as to how to perform that project, what was to be done in regard to that project?
A I don't recall being given any instructions on just how to do it.
Q Well, when somebody presented you with that pajama top, were you given no information or direction as to what anybody was interested in trying to have you do with it?
A Yes; maybe I misunderstood your question at first.
Q That's my fault, Ms. Green.
A I was asked to try to realign the holes in the pajama top so that in the manner -- folding the pajama top in the manner in which it was found on the victim, and creating 21 thrusts, making 21 thrusts through it to produce 21 holes in the pattern with the puncture holes in the chest of the victim.
Q Well, it is not quite correct to say that you were asked to repeat 21 thrusts. Actually, there were several thrusts to that pajama that you never attempted to accommodate, isn't that right?
A No, I was trying to get exactly 21 thrusts.
Q Well, we do, I think -- we have heard testimony here about 21 puncture holes. There are actually several other thrusts through that pajama top that are not puncture holes. You are aware of that, are you not?
A Yes, there are two knife wounds -- two knife cuts. Yes.
Q Now, a knife wound is also a thrust through a garment, is it not?
A Yes.
Q So that to be absolutely correct, you were to figure out whether 21 puncture holes could be aligned in a way -- or that 48 puncture holes could be aligned in a way that fitted 21 purported puncture holes in what was a body, is that right?
A Yes.
Q At no time did you attempt to figure out how you could line up 48 puncture holes in one garment with 21 holes in the body, and at the same time also figure out how the knife wounds -- the knife thrusts could be accommodated also -- at the same time -- isn't that correct?
A That is true; I didn't work with the knife wounds.
Q Now, in trying to make these various holes work out, I am going to do a very crude demonstration. Let us assume for a moment that the handle of this ice pick I have really represents just one of the probes you are working with, all right?
A All right.
Q And let's assume that the hole I made in the piece of paper represents the hole in the fabric, all right?
A Yes.
Q Now, because the probes and the holes you were putting in them were circular, you could rotate, could you not, the fabric to a certain extent around the hole and around the probe?
A I suppose you could.
Q In fact, you did experience that. You had to rotate fabric to try and line up with another hole someplace else, isn't that right?
A I don't know that I moved it around that much. It just went through it.
Q Well, you did, in fact, have occasion to have a probe through one hole and then try to line up another hole, perhaps move the fabric and cause it to rotate, isn't that right?
A It is possible there was some rotation, yes.
Q Ms. Green, let's get this correct. Are you telling us you don't have any recollection of having to try and move a piece of fabric while one probe was in, and try to fit it to another one; then move another one to try to fit it to another one? You never did that?
A Well, I remember being very careful when I was lining these holes up so that I would not change the size of the holes in going through them.
Q I understand that.
A I did not try to twist them.
Q As a matter of fact, the way you tried to assure that you were not going to change the holes was that you used the probes here, which are actually smaller than most of the holes in the garment, so that the probes themselves would not damage the holes?
A That is correct.
Q By the way, do you know offhand what the diameter of the probes are that you used?
A No, not offhand.
Q Do you have a note of that in your own file or in your memoranda?
A I don't believe so.
Q Had you experimented with different diameter probes before going on with this work to make sure you didn't have a set of probes that were too large for the holes?
A I don't recall doing that. I know these probes were not larger than the holes.
Q All right. When you have a hole that is made by a knife blade -- I am going to insert that into the side of the Government Exhibit. Nothing is involved here. If you were to try and rotate the fabric around a probe that would simulate a knife blade, wouldn't there be a potential problem or danger in doing that?
A With a knife blade, yes.
Q What is the potential problem and danger of trying to rotate fabric with a knife blade in place?
A It would probably tear the edges, either end of the cut --
Q And -- sorry -- go ahead.
A Either end of the cut would be torn.
Q And, of course, it would be fair to say that your ability to rotate fabric to see if you match up holes or you turn it around or adjust it, is not limited in that fashion when you are dealing only with a circular or oval hole such as an ice pick hole?
A That is true.
Q Now, having called that to your attention, there are problems of trying to rotate or move fabric without danger when you have to deal with knife holes as opposed to puncture holes, would that lead you to the conclusion that perhaps the reason why you were not asked to accommodate 48 puncture holes and two knife holes into the body pattern, was because it would limit how much you could maneuver the fabric? Had that occurred to you as a possibility?
A I'm not sure I understand the question.
MR. MURTAGH: Your Honor, we would OBJECT. I think the question is argumentative.
THE COURT: She doesn't understand it. Let's see if she can understand the question first. That may solve it.
MR. SEGAL: That's my fault. I will rephrase it.
BY MR. SEGAL:
Q What I am trying to seek your opinion on, Ms. Green. Now that you have heard what I am asking about; that is, with a knife in fabric which presents problems of rotation because of tearing, all right?
A Right.
Q With an oval instrument such as an ice pick in place, it doesn't present any problems in rotating. Does that lead you to the conclusion that the reason why you were not asked, in setting up this model, to also put in probes duplicating the ice pick was because it would have limited how much rotation and maneuverability you would have had with the circular probe?
A You say, with ice picks?
Q Yes, emulating the circular probe?
A I'm still not sure that I understand your question.
THE COURT: Let's just ask the witness why you didn't work with the knife holes? I think that is what he is getting around to.
THE WITNESS: The reason I did not work with the knife holes is because it wasn't requested.
BY MR. SEGAL:
Q And who made the request? I'm sorry, I didn't mean to cut you off.
A That is all.
Q And who made the request of you to work only with the probe or the ice pick holes?
A Mr. Stombaugh.
Q Now, when you observed that there were ice pick holes and also knife holes in the garment, did you ask him if there was any reason why you weren't supposed to try and accommodate those knife holes as well as ice pick holes?
A I may have. I don't recall because it seems to me there were only two knife holes in the pajama top, and there were several in the victim's body.
Q There were several what?
A In the chest of the victim.
Q Ms. Green, let me ask you, did you, before you began this experiment trying to put probes into the holes, examine the various puncture holes in the blue pajama top?
A No. I didn't see it when it came in in 1971.
Q Well, in 1974 when you did receive it, did you make an examination before you commenced this experiment of the pajama top itself?
A Mr. Stombaugh had already done that, so I didn't make an examination, as such. I am sure I looked at them as I was working with them.
Q Did you not look at the individual puncture holes that were made in that blue garment before you started working with it?
A Yes. I am sure I did.
Q Did you look at them under a microscope?
A I may have.
Q Do you not have any bench notes of any sort in that regard?
A No. I could well have looked at them under a stereo microscope.
Q When you looked at it, if you did, did you check the other count of warp and woof threads that had been broken by various puncture thrusts?
A No, I didn't make any count.
Q And therefore you have no record either of this count? There was no record of the number of threads that are broken in each puncture hole?
A No. Usually there is just one; possibly one, one way or another.
Q Are you saying that when a puncture hole is made with an ice pick, only one warp thread and woof thread is broken? Is that what you are saying?
A Not necessarily, but it wouldn't be very many. It could be only one.
Q It couldn't be only one?
MR. MURTAGH: OBJECTION, Your Honor.
THE COURT: I believe you misunderstood it.
MR. SEGAL: I'm sorry if I misunderstood it, if I did.
BY MR. SEGAL:
Q What I am asking, if you are examining a single puncture hole under a microscope, you are able to tell, are you not, how many warp and woof threads may have been broken by it?
A Yes.
Q And what is the purpose of making such a microscopic examination of a puncture hole or knife thrust in a garment?
A The purpose of examining the hole?
Q Yes, ma'am.
A The main purpose was to determine whether it was a puncture type wound, by looking at it, by the characteristics of the hole made by something such as an ice pick; and whether it breaks one or two yarns, it really doesn't matter if they are alike in diameter and have the same characteristics.
Q This garment had a large number of holes, didn't it? 48 is a pretty good number to work with, isn't it?
A Yes.
Q What was the range of the number of broken threads among those various holes? That is, what was the least number of threads that were broken by any puncture hole, and what was the largest number of threads broken by any puncture hole?
A I don't know. I didn't keep a record.
Q Are you even certain at this time that they were checked individually, each and every one of those holes, to determine the number of threads that were broken in them?
A No, I never did count the holes individually. I just looked at the holes.
Q You never did count the holes individually?
A I never did count the warp and filling yarns that were broken in each individual hole. I just studied the holes as a whole.
Q Did you ever do any experiments with this garment where you held it taut, and then, using an ice pick, made punctures in it with an ice pick going into varying depths; that is, sometimes just pricking it slightly, sometimes going deep into it? Did you ever try such an experiment?
A Not with this garment.
Q Did you try any in connection with this case with some other fabric?
A I don't recall, but I have done that on other cases if not on this one.
Q All right, you say you have done it, you are certain, on other cases; is that right?
A Yes.
Q But you have no recollection whether you made such an experiment in this case; is that right?
A That's right.
Q And what was the purpose of conducting that kind of experiment in other cases?
A To see the type of hole that it would leave as compared with whatever type you were comparing.
Q That was just to give you the shape of the hole that was made by a particular puncturing instrument or cutting instrument?
A Well, it shows you the shape and the condition of the fibers at the end of these yarns, the type of hole it leaves, the characteristics of this hole. If a hole is made in a piece of fabric where there is nothing to support it, it tends to rip it and tear it.
Q And where there is something to support it, what happens?
A It just leaves a circular hole without tearing.
Q Let me ask you: did you make any experiment of a different sort? Let me ask you about this one -- in which you took an ice pick and mounted it upright like this, then took a piece of cloth, and punctured it at different angles to see what would happen in terms of the type of hole that you would get? Did you perform such an experiment in this case?
A I don't believe so in this case, but I have tried things like that in other cases.
Q May I ask what was the object in other cases for trying that kind of experiment that I have just described to you?
A Just to see the type of puncture.
Q And you were interested -- were you not -- to see whether you got any tearing effect -- were you not -- when a puncture wound was made a particular instrument?
A Yes.
Q And, by doing such an experiment -- that is, trying to mount the ice pick upright, taking a cloth and a different angle of attacking the cloth with the ice pick, you could find out whether it produced a torn hole or what kind of hole it produced; is that right?
A Yes; I probably would be doing it more in the reverse, using an ice pick into the cloth.
Q All right, maybe that's another way, depending upon the facts that someone had told you were involved in the particular event that led to an investigation; is that right?
A Yes.
MR. MURTAGH: Your Honor, we would OBJECT to this line of questioning on the grounds that it is beyond the scope of direct.
THE COURT: Well, I'll let him ask it. He said he wasn't going to ask her but a few questions anyway. Go ahead.
BY MR. SEGAL:
Q Do you know of any reason why such an experiment was not done in this case?
A I don't believe it was felt necessary.
Q I assume that the judgment was made by Mr. Stombaugh or somebody else, rather than yourself.
A Probably both of us, because we could see the holes and knew what type of holes they were from previous experiments of this nature.
Q You mean that they were puncture holes?
A Puncture holes.
Q When was the last time you had done a puncture experiment with the puncture instrument going in at an angle into a fabric like this?
A I don't know. I don't keep records on these cases.
Q Well, let me ask you: is it correct to say that all of the holes in that blue pajama top were not of the same size -- all of the puncture holes were not all of the same size?
A Yes; there was variance; yes.
Q Do you have any recollection or have any notes at this time to indicate what was the largest diameter puncture hole as opposed to the narrowest diameter puncture hole?
A No; Mr. Stombaugh made those notes. I believe he testified to that. It was a range.
Q But you yourself in your work did not have an occasion to make such a note?
A No.
Q The probes that you used -- they were smaller than the smallest of the holes in the pajama top; were they not -- in diameter?
A Either the same size or smaller.
Q Well, if they were the same size as, say, the smallest hole, wouldn't that have a potential for damaging or tearing that hole if you put it through any times?
A No; if it was just big enough to go through it -- which was the case.
Q Do you know how many holes in the pajama top were just large enough for the probe to go through without damaging it?
A All of them.
Q Which holes are just about the same diameter as the probe itself -- I should have said?
A I don't know. I didn't keep track of which holes.
Q Did you encounter any difficulties in putting these probes carefully through the cloth without damaging the cloth?
A No; just I had to be very slow and careful with them.
Q Were the ends of these probes -- were any one of these probes in any way filed or rounded in order to prevent damage from being done as it was going through fibers?
A They are not filed. It looks like they have been cut with a pair of tin snips or something, but they don't have any snags on them to hurt the fabric.
Q They had no burrs on the metal; is that right?
A Right.
Q May I see some of these, please. As a matter of fact, is it correct to say that what you have here is a V-shaped cutting edge at the end of each of these probes?
A That's right.
Q You wouldn't call that the ideal way of going through a small hole in order to avoid tearing it -- having a V-shaped cutting edge; would you?
MR. MURTAGH: OBJECTION, Your Honor.
THE COURT: SUSTAINED.
BY MR. SEGAL:
Q Would you have preferred to have a rounded edge rather than a V-shaped cutting edge to go through the fabric?
A It might have been better, but it really didn't matter.
Q Now, in arriving at this eventual diagram that you have here, you merely have taken these probes and put them through holes so that 48 fit into 21; is that right?
A That's right.
Q You have not in any way tried to make sure that, say, you have a top small hole, you have a large bottom hole -- let's make another hole here -- you in no way accounted for the varying widths of the holes that you are putting probes through; is that right?
A I'm sure that at that time I did this I would have noticed if there was a much larger or much smaller hole. They all seemed to be approximately the same. I think I would have noticed if the top hole, for instance, was much larger than the bottom just in performing the examination.
Q Could you tell us whether -- just tell us what record you have to show us that you didn't wind up putting a probe on top through a small hole.
A I didn't write any records of the size of the holes.
Q I'm not talking about the size of the holes now. I'm talking about what record do you have of this demonstration that could assure to anyone that taking a probe and putting it through a small hole where it just fit, going on through a slightly larger hole which indicates that perhaps it was made by a different part of a blade or knife or an instrument like this and then go through a third size hole which was made by a different portion of the same type of instrument; what record do you have to show you didn't do that?
MR. MURTAGH: OBJECTION.
THE COURT: OVERRULED.
BY MR. SEGAL:
Q Is it not correct to say, Ms. Green, that the sole point of what you were asked to do was to see whether if you took a probe that was smaller than the smallest hole in the 48 holes in the garment, whether you could rearrange those holes with the probe and then come out as though they touched 21 points down below; is that not the point of your demonstration?
A Yes, I aligned 48 holes into 21; yes.
Q Now, of course, you had to arrange that pajama top in some sort of fashion and what was your guiding information or material as to what fashion you were going to arrange the blue pajama top?
A Mr. Stombaugh and I studied the photographs of the victim with the pajama top over the victim and decided that the neck area and the right shoulder sleeve area and all the other areas were in certain locations, that it was inside-out, and so we folded it in that manner.
Q And you were using some photographs that were provided by the what -- the CID investigators or the FBI?
A I believe those were at the scene -- CID photographs.
Q Did you have any other information that you were considering and working with at the time that you were setting up this little experiment?
A Have any other information?
Q Yes; about the crime, the body, or the body's position, the condition of the body.
A Well, just that the pajama top was found as it was pictured in this photograph and that it had been probably moved to one side when Mr. MacDonald was laying on the body of the victim. It could have been pulled to one side. I was under the impression that could have happened.
Q And where did you get that information -- that Dr. MacDonald might have moved it because he was lying on it at some point?
A I don't recall whether I read it or someone mentioned it.
Q Well, then, in using these photographs that you had before you, is it fair to conclude that what your demonstration was going to be was to guess at where it had been -- the pajama top had been -- on Mrs. MacDonald's body and then, having made such a guess, try to see whether you could fit 48 holes into 21?
MR. MURTAGH: OBJECTION.
THE COURT: SUSTAINED.
BY MR. SEGAL:
Q How did you determine that the fashion you have illustrated here is the correct fashion in which the pajama top was laying on Mrs. MacDonald's body?
A Because, from the photographs, you could tell that it was laid out in a certain way. It was inside-out. The right shoulder sleeve was over to the right. The right cuff sleeve was over to the left. The collar area of the right front panel was up above the right shoulder sleeve. The back panel was pulled over to the left. All of these positions we could tell, and when redoing the pajama top and letting it fall into that position, these holes could be lined up.
Q Well, how long did it take you to do this in 1944 -- or that is in 1964 -- let's forget all that. Let's start all over again. Pretend I didn't say it -- 1974 -- how long did it take you to do this the first time you ever did it?
A The first time I ever figured out the complete possible arrangment, I would say it took at least a week.
Q To figure out the arrangment of the puncture holes; is that right?
A Yes; to account for all of them.
Q And did you make a memorandum in your work notes about what you did at that point so that you could say, okay, now I've got to this; I know how to do it; is that right?
A Yes.
Q Having done that, how many more experiments did you go on to conduct in regard to arranging the pajama top?
A At that point when I found the solution to the problem that I was given, that was it. I had other work to do.
Q On some other project?
A Yes.
Q You don't truthfully know -- do you -- Ms. Green, how many other possible alternative arrangements there are whereby you could have fitted those 48 holes into 21 holes?
A No; because I was trying to fit exactly 21 holes.
Q Because that is what you had to do?
A Yes; that was the problem. That was the request. It could possibly be more; it could possibly be less; but it can be 21 holes exactly and come out into the same pattern as the pattern of the punctures on the victim.
Q Do you have any way of knowing whether or not you can fit those 48 holes onto 15 skewers; have you ever tried that?
A No.
THE COURT: It is time for our recess. Come back at 4:00.
(The proceeding was recessed at 3:45 p.m., to reconvene at 4:00 p.m., this same day.)
F U R T H E R P R O C E E D I N G S (4:00 p.m.)
(The following proceedings were held in the presence of the jury and alternates.)
(Whereupon, SHIRLEY GREEN, the witness on the stand at the time of recess, resumed the stand and testified further as follows:)
C R O S S - E X A M I N A T I O N(4:01 p.m.) (resumed)
BY MR. SEGAL:
Q Ms. Green, is there any reason why you could not have fitted, in using the skewers, the 48 holes into 25 holes if that had been the project?
A It probably could have been done.
Q Is there any reason why the 48 holes could not have been fitted into 18 holes in the space?
A I don't know, I didn't attempt to do it; but I am sure that there could be more or less holes, but how many -- one or two -- I don't know. That wasn't my object.
Q It would be correct to say that the result that you achieved in this particular experiment depended upon what you had been asked to do and defined by Mr. Stombaugh?
A Yes, I was trying to align 21 thrusts through the pajama top, through all 48 holes, folded in the manner in which it was found on the victim, and it was possible to do so in the exact pattern as in the chest of the victim.
Q The exact pattern, you say, provided that when you moved the pajama top to the position that you had it in, which is different from the picture that you had before you?
A I am saying the pajama top was positioned in the manner in which it was found on the victim. It might be -- I didn't place it on the body -- but if it is folded into this position -- if you want to move it a little to the left or right, it still lines up.
Q Just a little movement, though, is all you are talking about, not substantial changes from the way it appears in the picture?
A Well, I don't know how much movement it would -- if it lines up, you could move it wherever you want to put it, once you have put your thrusts -- your pins through it in this case.
Q When you looked at the pictures of Mrs. MacDonald's body, did you notice whether she had anything on the upper part of her body besides the blue pajama top? I will give you a picture if it will help. For the moment let me give you two of the three, which are G-1139 and G-1137.
A Her own pajama top.
Q That is the pink pajama top, is that right?
A Yes.
Q Now, at any time, did you ever attempt to take a -- and we'll call it the dummy here that you were using back in 1974 -- this foam rubber pad?
A Yes.
Q Did you ever attempt to do this little experiment: first putting on the pink pajama top across the dummy, then putting on the blue pajama top, and then trying to put through -- these skewers through it all?
A No.
Q In view of the fact that you had the picture in front of you, that shows the body was not naked above the waist but had a pink pajama top, did you ever ask anyone as to whether or not the experiment should be conducted that way, with the pajama top on?
A I possibly did. I don't recall.
Q Do you recall an answer of any sort you may have gotten?
A No, I think we didn't think it was necessary.
Q And who made that decision, if you recall -- Mr. Stombaugh?
A Probably.
Q Did you ever examine the pink pajama top in detail?
A No, I don't recall -- I remember looking at it but I didn't examine it particularly.
Q I'm sorry, you examined it and what?
A I didn't particularly examine it myself. For what reason?
Q You have no idea, then, of the relationship of the pink pajama top to the injuries on the body, to the blue pajama top -- if it has any relationship whatsoever?
A Well, I don't recall specifically. I know that there were a certain number of puncture holes through the -- through her pajama top; but there again, if there more than 21 it would mean those could be caused by folding --
Q (Interposing) Would you --
MR. MURTAGH: (Interposing) The witness is not finished.
THE WITNESS: They could be caused by folding in the same manner as the other pajama top, but I didn't try to figure out how it was folded. It didn't seem to have much point.
BY MR. SEGAL:
Q Well, let's suppose that the white sheet that I have here would be the pink pajama top. Would it not have given you some hesitation about the validity of your experiment if, having put through the probe through a small hole, then through a larger hole, then a medium hole, you were then confronted with a small hole in the pink pajama top --
MR. MURTAGH: (Interposing) OBJECTION, Your Honor.
MR. SEGAL: -- would that not raise a question in your mind as to whether this was a valid experiment you were engaged in?
THE COURT: Objection SUSTAINED.
BY MR. SEGAL:
Q Does that fact -- that you did not have the pink pajama top available to you to participate in the demonstration -- give you any question as to the methodology you used to arrive at the conclusion you did?
MR. MURTAGH: OBJECTION, Your Honor.
THE COURT: SUSTAINED.
BY MR. SEGAL:
Q Do you know of any reason why you were never asked to make a comparison between the pink pajama top, the blue pajama top, and the holes on the torso?
A I mentioned that Mr. Stombaugh had examined that and decided that the holes were possibly a certain size or that it didn't warrant the examination, I don't know.
Q Did you yourself ever speak to any CID agent about the placement of where the pajama top was found on Mrs. MacDonald's body?
A No, I don't recall.
Q Did you ever meet, in this connection, Agent William Ivory of the CID?
A Yes.
Q And do you recall his discussing that with you in 1974?
A No, I didn't meet him at that time.
Q Your meeting was, what, in 1979?
A Yes.
Q Did you get any written memorandum from anyone describing the circumstances under which the military police and medics and other persons observed the blue pajama top on Mrs. MacDonald's body?
A No, I don't recall anything.
Q Now, you have told us today that there was a second -- just one last question, then -- a second creation in this photograph -- 787(a).
We see here that the -- what is it, the left arm?
A Yes; the left sleeve.
Q In the laid-out fashion here, running off the edge of the mound here in the rearrangement -- is that an attempt to recreate the way that sleeve appeared on the photographs that you had up there on the stand?
A No, not in a sense. That is a recreation of the -- when the pajama top folded as it was found on the body from the photographs; and then with the probes through it, naturally it is going to look a little different. It is going to change. You've got 21 probes going through the material all at one time.
Q My question was -- addressing yourself to the, what I call the right-hand side of the photo, is this display of this arm here meant to represent the way the arm was seen on the photographs that you have up here in front of you -- the photographs taken at the crime scene?
A Generally -- not exactly. This was stretched way out. It didn't seem important. The idea of that picture was to show those probes and to show the numbers on each one of those probes.
Q Right. The arm display here has actually nothing to do with this experimental probe, is that right?
A That's right.
Q But actually, though, 50 percent of the photographs displayed here is the laying out of the arm which has nothing to do with the demonstration you engaged in, isn't that right?
A Yes; that's only because it just worked out that way. In order to get the entire thing in, it is a little distorted as that -- where that sleeve comes out in the photograph from that angle.
Q It is a little distorted where the sleeve comes out -- I'm not sure I understand. What does that mean?
A Well, I mean the angle is not -- it looks like -- just as you take a picture of someone with their feet in the foreground, their feet look big. It is a little bit distorted in -- from that angle. What it is focused on is the probes.
Q By the way, the picture itself does not really repeat any of the angles of the photographs you have; isn't that correct, Ms. Green?
A Yes.
Q Were you present when this photograph was taken in 1974?
A Yes.
Q How many other angles was this particular model shot from?
A I believe that is the only one.
Q One single photo?
A Yes.
Q Were you and Mr. Stombaugh present at that time when this photograph was being taken?
A I don't recall. I am sure one of us was. I am not sure.
Q Was it only after the photograph was developed that you realized that it kind of distorts the size of the sleeve here? Was that the first time that you became aware of that?
A No, it was not important. The important thing about the sleeve is just to have it off to the side, out of the main concentration of the picture.
Q As a matter of fact, that sleeve could be off entirely and it would have nothing at all to do with your demonstration, is that right?
A That's right.
Q It's just "eyewash," in fact?
MR. MURTAGH: OBJECTION to that, Your Honor.
BY MR. SEGAL:
Q It is just "eyewash," in effect, isn't it?
THE COURT: I'll SUSTAIN. I won't require her to answer a question involving the word "eye-wash."
BY MR. SEGAL:
Q Do you know why no photograph was taken of this 1974 model from a position approximating either one of the two positions -- just let me borrow, if I may -- from a position approximating either one of the two positions of the principal photograph that you were working from?
A Because we didn't see any object in doing so. Our object was to line up the probes and show how they could go through the pajama top.
THE COURT: I seem to recall that you said that one time before today or more. Did you?
THE WITNESS: I possibly did.
THE COURT: Ask her something else.
BY MR. SEGAL:
Q All right. How about in 1979, you told us there were a whole bunch of new pictures here that you did the same experiment in 1979. Is that right, Ms. Green?
A Yes.
Q Who asked you to do it in 1979, the second time, and why?
A I think it was Mr. Murtagh. I forget the date.
(Counsel confer.)
THE COURT: Did you find it?
THE WITNESS: Yes.
THE COURT: She found it.
THE WITNESS: It was in March of this year.
BY MR. SEGAL:
Q March, 1979. Did you get an oral or written request in this regard?
A This was, I believe, an oral request.
Q Do you have that in memorandum form, Ms. Green?
A I just have that I realigned the pajama top and photos were made in March.
Q Do you know why you were asked to do this demonstration a second time five years later by Mr. Murtagh? Was any reason given to you?
A Well, they wanted to have photographs made. To realign it, have photographs and to re-check the -- see if it came out in the same pattern, whatever.
Q Now, as a matter of fact, there were more photographs made than you were shown here this afternoon, is that right? More than there were shown in the displays here; there were more than these, weren't there?
A Probably.
Q I would like to ask you that, when you did the display in 1979 in March or so, and had them photographed, were you once again arranging the pajama top to resemble the way it was in the photographs we have been talking about here today, 1139 and 1138?
A Yes.
Q Did you arrange them in the same fashion that they are in those photographs?
A Yes.
Q If we may, I want to ask you to look at some of those photographs. While we are getting this set up, Ms. Green, if you would come down and just take a look at those photographs and see whether they look familiar to you. Then, after you have had a chance to look at them, we'll talk about them.
(Witness complies.)
Q Ms. Green, have you had a chance to look at the photographs, particularly the one that has been marked D-40 for identification and D-39 for identification, and do you recognize either of those two photographs?
A Yes.
Q You may lift the grid if you like.
A I recognize them.
Q And is D-40 one of the arrangments you have made of this blue pajama top sometime in 1979 as a result of Mr. Murtagh's request?
A Yes.
Q And is D-39 the same representation of the blue pajama top, only photographed at a different angle? Is that right?
A Yes, that is right.
Q And these photographs we're talking about were made about the same time as the others you were shown before our luncheon break today, were they not?
A Yes.
Q We also have here displayed D-41 which is one of the photographs you have been working with, and also D-42 which is a photograph you have been working with, only they are both in enlarged fashion?
A Yes.
Q And, finally, over here on the left, appears that same photograph, 787(a), that we have been working with except that we have eliminated an arm which, as you say, doesn't have anything to do with the attempt to make these little sticks fit in, is that right?
A That is right.
Q Now, on 43, if you will look at this -- yes, this is Government Exhibit 43 here -- if I could just temporarily impose upon you to stand back and I will point something out. Then, if you need to come closer, please don't hesitate to do that, but what I want to do is point out to you and then ask you about it. First of all, I want you to take note, if you will, of the way the pajama trails off from letter "J" to blocks 10 and 11 and going into 12. Do you see the trailing edge of the pajama here?
A Yes.
Q Now, if you would look over here at 804 which is the nearest thing to it, I ask you to take a look at K-8 and 9 and ask if you can tell me whether or not the trailing edge of this pajama isn't arranged rather differently from the way it appears here in the first photograph.
A Yes, sir; it appears to look different, but the object was not to try to make the photographs look alike. The object was to try to fold the pajama top into a certain position which was done in all cases with these other two. They are in the same position, and folded in the same position, and when the probes are through there, we weren't concerned about having them angled and having the photographs match up. All we were concerned about was matching the holes in the same position in the same number.
Q Of course, in this photograph here again you see some attention has been spent in getting this particular arm trailing off to the left and turned here at this angle; right?
A Actually not much attention was given to it. We just sort of draped it out there to put it in a general area.
Q Well, as a matter of fact, if you look up here on photograph 40, you didn't bother to do that at all. You simply tucked the arm apparently underneath it to get it out of the way because it had no relevance whatsoever to the experiment; right?
A That's right.
Q But here in this and many other pictures we have seen today, the arm appears taking about 50 percent of the photograph up although it actually had nothing to do with the experiment; correct?
A It was just a matter of holding all the evidence into one picture, showing all the evidence.
Q Why was it necessary to show the arm in every picture when the arm had nothing to do with the experiment you conducted?
A It was just a matter of record.
Q Record -- why wasn't it a matter of record here on 40 to show the arm where it was?
MR. BLACKBURN: Your Honor, we would OBJECT to that.
THE COURT: I will SUSTAIN the objection. I think she has covered that adequately -- not once, but three or four times.
MR. SEGAL: I'm sorry. I couldn't hear you.
THE COURT: I said that she had covered it adequately -- not once, but three or four times.
BY MR. SEGAL:
Q Now, if you will take a look, please, at Exhibit 804 at the piping that is apparent at O-7, O-6. O runs along here. It appears in the blocks that are marked O-6 and O-7. Do you see that piping there in O?
A Yes.
Q Now, if you will look over here on the other photograph which is Government 43 and the approximate area that should be, I would say, J-8 and 9, would you show me where the piping appears anywhere?
A Actually, this is a different angle so that this is the right sleeve coming through here which would be right here. This is over to the right of the right sleeve and it would be right here and that is a piece of the beading right there.
Q The piping -- you would call it piping; right?
A Piping, yes.
Q Now, you indicate that the piping that appears on Government Exhibit 804 and is located at the grid coordinates that we talked about here of O and P at 6; do you recognize it there?
A Yes.
Q And you would agree that this appears to be over where the left breast of the female model or dummy would be; is that right?
A Yes.
Q But, however, when I asked you to point it out in the actual crime scene photograph of Mrs. MacDonald's body, you pointed it -- well, let's get the coordinates down here -- it looks like K-11; is that right?
A Yes.
Q In your mind is that the same position that it appears on the model there?
A No, but I didn't have a body to put it on here. I just used a form. It could have been placed to the left or right of the form. It was just a place to put the pins.
Q All right, let's take a look at the crime scene photograph, and I ask you to look at J-11 and K-11 and ask you if on that J and K-11, you observe the presence of a seam.
A It looks like a fold to me.
Q There are two different lines I'm pointing to. Let me get the coordinates again, if I may. We are talking about one that comes here at coordinates J-9 and 10, and we are talking about one here. One runs here and one runs here. Do you see the three lines I am referring to here?
A Yes.
Q Now, would you please examine -- I'm sorry. Do you have anything to say about that?
A These lines right in here?
Q The three of them -- one, two and then what I would call a seam but I will accept your characterization of it.
A It looks like a fold.
Q Now, go over onto your own model there and show me where on this exhibit you can find anything that resembles those marks.
A Well, as I said, this is at a different angle -- it is not looking at it in the same direction either even though it is folded the same. It would be difficult to find every little fold and seam in exactly the same place because here you have probes through here that change the position slightly even though it was arranged in the same way.
Q Let's take a look back at your model, then. Let's look at the coordinates M-6 and we'll look at L-7 and I ask whether you notice here a seam present here in the garment.
A Yes.
Q All right, now, will you show me, please, where there is a comparable seam anywhere visible on the crime scene photograph of Mrs. MacDonald that most comports to that?
A Well, like I say --
Q (Interposing) It's approximate.
A Well, we are doing a comparison of photographs which is not the same as comparing the actual garment. This seam could be hidden here and yet still be in the same position generally -- generally in the same position.
Q Let's skip over to something. Let's take a look at these two big photographs here, D-41 and D-40. You would suggest that the dressmaker's dummy is in a fairly close relationship similar to the way Mrs. MacDonald's body appears here in the actual crime scene photograph?
A Yes.
Q Well, now, first of all, will you notice that in the actual crime scene photograph Mrs. MacDonald's right breast is visible, although it is covered by a pajama top; do you see that?
A Yes.
Q As a matter of fact, I think even the outline of the nipple is visible at the coordinates of G-15. Would you agree that appears probably to be a nipple underneath the garment there?
A Yes.
Q I ask you to take a look at the photo that you worked on and tell me in what reasonable manner you can tell me that this resembles the position in which Mrs. MacDonald's body is shown here. Show me where her purported right breast is visible on the garment as you arranged it.
MR. MURTAGH: Your Honor, we would OBJECT.
THE COURT: SUSTAINED.
BY MR. SEGAL:
Q Do you see any comparison as to where the right breast area is arranged on the actual crime scene photo and arranged on the photo that you have here showing your pincushion effect?
A The attempt was made to put this in this position as the puncture holes were in the victim. In this case, they could have been pulled to one side.
Q What could have been pulled to one side?
A The whole pajama top could have been pulled to one side, since the -- if there were stab holes through that in one position, it could have been moved to the side after the stab holes.
Q Well, isn't it a fact that this arrangment that you have shown here in G-4 consists entirely of speculation?
MR. MURTAGH: OBJECTION.
MR. SEGAL: May I finish my question, Your Honor? This is a purported expert in this matter.
MR. MURTAGH: Your Honor, may I approach the Bench?
THE COURT: Yes; come up.
B E N C H C O N F E R E N C E
MR. MURTAGH: Your Honor, Ms. Green, although she probably is qualified based on her education and experience --
THE COURT: (Interposing) You did not undertake to qualify her --
MR. MURTAGH: (Interposing) No, sir.
THE COURT: -- as an expert in anything. You told what her educational qualifications were. But I was not asked for any ruling on that.
MR. MURTAGH: No, sir. And I merely asked her what she did and whether the photographs accurately depicted what she did. I asked her no opinions on anything.
MR. SEGAL: As a matter of fact, she said, Your Honor, "This is the way it could be on the body."
THE COURT: Let me ask you this now: just in all fairness, can't you ask your questions without interjecting stuff like "pseudo-expert" and "purported expert" and so forth? I don't think that is fair.
And let me tell you something else, too: I don't say this because I am trying to run your lawsuit -- I am not sure that you are helping your own case when you do that. This is just an observation from this Bench which you may or may not give any weight to at all.
But it just occurred to me that you can ask questions of a witness who is not qualified as an expert without incorporating that kind of language in your questions.
MR. SEGAL: I don't believe I referred to this lady in this regard, Your Honor. I must say the only time that I have said that was in reference to Mr. Stombaugh.
THE COURT: Well, you said -- you asked "purported."
MR. SEGAL: I don't think -- it may be ill chosen.
THE COURT: That is not as strong as "pseudo."
MR. SEGAL: I agree.
THE COURT: Both of them are improper in my opinion. And I don't want to have to hold you to account here before this jury, because I don't want your client to be prejudiced by anything that I do and even what you do. Do you understand?
MR. SEGAL: I understand, Your Honor.
THE COURT: All right.
MR. MURTAGH: Your Honor, could we merely have for the clarification of the record that Ms. Green has not been qualified as an expert and has merely testified as to what she did?
THE COURT: If you want to bring that out on redirect, of course, you will be in a position to do it. I don't want to make speeches to the jury when I don't have to.
MR. MURTAGH: Let me say this: I refrained from making this reference in front of the jury. But we can put it in as to which seam is where and to what fold is what. It takes her about an hour to do it.
THE COURT: Just tell her to reconstruct the whole thing?
MR. MURTAGH: She can -- yes, sir.
MR. SEGAL: You can prove your case the way you want to, Mr. Murtagh.
THE COURT: Here is one thing: since I am wondering, I am wondering if the jury is wondering about it too. But I got as far into it this morning -- well, I just thought I had misunderstood that man's answers. But apparently I had not. I had misunderstood him as to one thing: because he told me -- I thought he said that if you have got five holes and you put the five fingers down here and make five impressions, there is no way on God's earth that you can ever cover them without having your fingers back in the same position that they were.
Now, that was that. But if I understood him correctly, he said that you could take ten fingers and get the ten fingers so confused as to go into the five holes as he did in this case, but that you could take those same ten things and put them some other way and they would fit. And I don't believe you can do it.
MR. MURTAGH: Your Honor, I think what he meant to do -- he was not going to testify that it could not occur in any other fashion. It is the same as Ms. Green is saying: "I did it this way. There may be some other way to do it." That is something we would clarify on redirect.
THE COURT: If he told me that you could arrange 48 places and arrange those same 48 so they would still go into those 21 holes other than the way that they say they arranged them in this case, I wouldn't believe it. But, now, thankfully, I don't have to make that decision, nor will that opinion ever be expressed to this jury.
MR. MURTAGH: Your Honor, if there is another way to reconstruct it -- and if it was tough enough to do it one way -- I think this is merely the conservative nature of the laboratory examiner. It is like the hair could have come -- the same thing with respect to the threads.
THE COURT: If I have ever heard a man disclaim, not one time but fifty, old Stombaugh kept saying that, "I only said it could be."
MR. MURTAGH: That is right, sir.
THE COURT: Now, you have been up here so long I forgot what you came for.
MR. SEGAL: A break, Your Honor. I said "purported expert." I am sorry for that. I really did not intend any derogatory inference by that. But my point was responding to the Government's objection that it is speculation.
THE COURT: Well, just watch. I think you have both been very good about saving your objections to those times when you thought maybe it was hurtful to you not to object and have it sustained if you could get it sustained. I commend both of you for that.
But as far as wording the questions and so forth is concerned, I am just sitting here and just disinterested -- listen, I would whole lot rather be somewhere else -- as I can be.
But I really think that when you get any kind of feeling into your questions or get into an argument with a witness, that the telegraphed message to the jury is that you are hurting. Now, that may be wrong, and you are a law professor. You know more about this thing than I do.
Next question.
(Bench conference terminated.)
BY MR. SEGAL:
Q In Government 43 here, I am going to lift the grid for you. The general nature of the folds that appear in Mrs. MacDonald's body, do you observe them, how they are laid across her center?
A In her body?
Q Yes, across her abdomen. The general nature of the folds?
A Of the pajama top?
Q Yes, of the pajama top?
A Yes.
Q You notice, I will point out to you, and I will drop the coordinate grid over it, this large area here, over this large area here. Let me just lower it, please. The large area, which falls mostly in coordinates I and J, running from 5 down to 10?
A Yes.
Q This is the area that I am referring to. Would you please show me where the comparable area exists here on G-804, which is the dressmaker's dummy?
A It would be right under here, but the pins have made so many folds that it does not show up. If the pins were taken out and it were just left there, it could be seen better.
Q Let's take a look at M-7 and N-7, and you see here, I am pointing to the ends of the pajama top. It looks like an end of a sleeve or an arm?
A I don't believe it is a sleeve or an arm.
Q What part do you think that is, Ms. Green?
A Probably along the side of the back panel. It should be the edge of the left side seam of the back panel.
Q May I ask you, please, to examine the actual crime scene photograph and show us the same place on it?
A Well, like I said before, these were not intended to be photograph comparisons. It is possible to have an end turned under in one case or the other. The main thing was to align it in this manner, both times.
Q Well, you keep stressing that it is the alignment in this manner both times so that you can get the pins in it, is that right?
A To figure out where the holes line up in order for them to come out with 21 in that particular pattern.
Q To get the result that you were asked to see whether it existed, is that right?
A Yes.
Q Well, can you explain, please, how you could do that, arrive at the display as it appears here on the Defendant 40, when the arrangement of the pajama top, for instance, contains here a notch -- a "V" notch -- and coordinates G and H, 12 and 13, I ask you how you did that when you look over your crime scene photo as similar, where I am unable to see any similar arrangment of that.
MR. MURTAGH: Your Honor, we would OBJECT to that question, unless counsel also states for the record what also appears in the photograph.
MR. SEGAL: The photo speaks for itself, Your Honor.
THE COURT: Well, I will let her answer that question and you can take her on redirect and supply the remaining half of the answer, if there is one.
THE WITNESS: It just happened to be the way I folded up the remaining part of the garment when I did that. I wasn't trying to match it up to the photograph. The positions are still there.
BY MR. SEGAL:
Q Now, I noticed here there was a great broad seam that runs from about coordinate H-8 and 9 down to coordinate C-10. Do you see that here on your model?
A Yes.
Q Could you please show me where you find that seam here on the original photograph?
A It looks like it might be right here.
Q I'm sorry, would you use the coordinate system. I think it will help us for the record?
A I would say it looks like it might be the area 17-G and H, as seen in there.
Q You think in the crime scene photographs the seam that I have referred to on the model appears at G and H-17, roughly?
A In this one it looks like to me -- I was going to look for the pajama top. I would think so.
Q You think that this seam here is supposed to be the same as the seam displayed in your own model here, running diagonally across as I am pointing to the jury now?
A Well, I believe that this seam here comes under and folds out to here, if that is the right sleeve; and I believe that is the same thing here.
Q You have testified to a seam that runs from coordinate N-15 down to I-16, 17, is that correct?
A Yes.
Q And you believe that is the same seam that appears over here on the dressmaker's dummy model running from H-8 down to D-10, 11; is that right?
A This would be a portion of that. Some of it is hidden under the folds of where the probes go through.
MR. SEGAL: All right, thank you very much. You may go back, Ms. Green.
BY MR. SEGAL:
Q Now, Ms. Green, did you ever see the report that Mr. Stombaugh prepared on the first experiment here, the one of 1974, in October and November -- February 17, 1974?
A Yes.
Q That has been marked as Defendant Exhibit 55, and I ask you to please read for us the first sentence of the third full paragraph --
MR. MURTAGH: (Interposing) Your Honor, we would OBJECT.
THE COURT: On the grounds that Mr. Stombaugh has already read it into the record?
MR. MURTAGH: It is Mr. Stombaugh's report; yes, sir.
MR. SEGAL: A different question. It has nothing to do with whether it's his report. I would ask whether this particular witness knows about it and what she did about it, if anything.
THE COURT: If it is not already in evidence, then you are offering it in evidence. If there is an objection, I may want to hear you on that.
MR. MURTAGH: Yes, sir.
B E N C H C O N F E R E N C E
THE COURT: He said it was Defendant's Exhibit 55.
MR. MURTAGH: Your Honor, I think Mr. Segal had ample opportunity to explore the semantic differences between Mr. Stombaugh's grand jury testimony and his report. We have been over whether folded in the same position means placed in the same position on the victim, or folded -- that is right sleeve inside out as it appears in the photograph.
We have been over this with Ms. Green. It seems to me that what Mr. Stombaugh wrote in his report is irrelevant as to what Ms. Green did and has testified to.
THE COURT: You say it is the same type of question as, "Did you hear Mr. So-and-so make this statement on the stand this morning and do you agree with it" and so forth?
MR. MURTAGH: I think it is something like that.
THE COURT: An objection is ordinarily sustained to that.
MR. SEGAL: I would like to make an offer, Your Honor. Where my question is, I don't think Mr. Murtagh quite has stated my position. My view is that the work that was done in this instance was done by this woman under the direction of Mr. Stombaugh. But she did the work, it is clear.
I want to ask whether she saw the report and read it and then when she saw the line that says, that this was, you know, we arranged it the same as in the pajamas; whether or not she either considered that to be a correct statement of what she had done or whether she had told him it was incorrect and it did not fairly represent what she had done.
THE COURT: Do you object to that, Mr. Murtagh?
MR. MURTAGH: I OBJECT.
THE COURT: I will SUSTAIN it.
(Bench conference terminated.)
MR. SEGAL: I will need your indulgence for one moment, Ms. Green.
BY MR. SEGAL:
Q I have two questions I want to ask you about this garment, but let me ask you first: do you see the hole that appears in the right sleeve here of this garment?
A Yes.
Q Do you know what that hole is?
A I believe Mr. Stombaugh burned a hole in it later on.
Q A hole was burned in it?
A I believe so.
Q There is a marking here on the back. Do you know under what circumstances he came to burn this hole in this?
A I am sure it might have been accidental.
Q You mean a cigarette hole?
A Possibly. I would assume; I don't know.
Q Can you interpret this marking in the back of this garment where that burn hole appears?
A It says "Lab test." Perhaps he burned it there on purpose; I really don't know. It appears to be, for instance, a cigarette burn. Maybe he used a cigarette to make a test, I don't know.
Q Have you any idea what test --
THE COURT: (Interposing) Did he smoke?
THE WITNESS: Yes.
THE COURT: I asked her if he smoked; she said yes; we are that far along. Go ahead.
BY MR. SEGAL:
Q I suppose -- I really do want to know whether there's some test that you know that he performed on this garment that required a hole-burning process to be made on it?
A No, sir; but I do recall him saying that he was responsbile for that burn hole.
Q Right; and he marked it as "Lab test," right?
A I assume that is his writing.
Q I will ask your indulgence while I am looking for a specific little hole here. Now, on what looks like to be -- tell me where number 4 is. Is this the back or one of the backs of the pajama top? Now, let me just hold onto it so I don't lose this hole.
A Hole number 4?
Q Yes, is this hole number 4 in the back of the pajama top?
A Yes, in the back panel.
Q Now, in the center -- let me hold it up, please, if I may -- in the center of hole number 4 -- it is an elusive hole -- in the center of hole number 4, there appears to be what, a puncture mark? Is that what that is?
A Yes.
Q Are you telling us that you placed a probe through that particular hole, number 4, Ms. Green?
A Yes.
Q Now -- yes, do you see it?
A Yes.
Q And that when you did that you did not damage any fiber using one of these probes?
A That circle is around a different hole over on that side than --
Q (Interposing) Can we show that to the jury?
A -- this side.
MR. MURTAGH: Your Honor, may we know which side she is referring to?
MR. SEGAL: I am going to show you right now. Bear with me one second.
THE COURT: Let's let her answer the question that was originally put to her.
THE WITNESS: These probes go from the inside of the shirt out, and it is from here out.
BY MR. SEGAL:
Q First of all, so we know what we are talking about, there is circled on the back of the shirt with a number 4, and in the center of the circle a hole. Do we see that? Are we in agreement about that?
A Yes.
Q At the edge of the circle, apparently just beyond the circle, there is actually a cut mark -- a thrust mark -- isn't that right?
A That's what it looks like.
Q However, when we reverse the pajama on the other side, you find it is number 4 again, is that right?
A Yes.
Q On this side, number 4, however, has circled what -- the hole or the thrust mark?
A It's the -- well, it's a large hole. Let -- may I refer to my notes?
Q Yes, certainly.
A Because there are some irregularities. This would be the hole which is larger than this one. I don't know what this one is.
Q Is it your testimony that this mark, which on the inside of the pajama back is circled "4," which appears to be a horizontal line -- that that's a mark that was made by an ice pick or made by a cutting instrument like a knife?
A No --
Q (Interposing) Can I offer you a glass, if that is any help to you?
A Okay. It could be either -- the large hole, the larger hole.
Q If that is a large hole, let's try the ice pick, then.
MR. MURTAGH: OBJECTION, Your Honor.
THE COURT: On what grounds?
MR. MURTAGH: Your Honor, which hole are we talking about? Are we talking about putting the ice pick through a smaller hole or a larger hole?
MR. SEGAL: The larger hole.
MR. MURTAGH: Your Honor, at no point has the Government ever put an ice pick through any portion of the pajama top.
MR. SEGAL: The witness has testified, Your Honor, that the probe doesn't go through the small hole, but the one marked "4" on the reverse side may be the one that the probe was put through.
MR. MURTAGH: Your Honor, may we come up on this?
THE COURT: Yes, you may come up, but I am going to let the jury go home. We will convene -- tomorrow is Friday, isn't it? Members of the jury, we will go on our regular Friday schedule tomorrow and we will convene tomorrow morning at 9:00 o'clock.
Remember, we go home at 3:00. And so we will let you retire now while I see what this one is about. Don't talk about the case.
(Jury exits at 4:58 p.m.)
(The following proceedings were held in the absence of the jury and alternates.)
THE COURT: All right, he is about to get the witness to put the ice pick through some hole there in the pajama top. Mr. Murtagh, you object to his doing that?
MR. MURTAGH: I OBJECT, Your Honor, unless I know what hole we are talking about.
THE COURT: Tell him what hole, right quick.
MR. SEGAL: Four.
MR. MURTAGH: Which side?
THE COURT: Number 4. Have you got one on both sides?
MR. MURTAGH: That is the point.
THE COURT: Tell him which side.
MR. SEGAL: The "4" on the back.
MR. MURTAGH: We OBJECT. I think if I can come up, I can show you why, Judge.
THE COURT: All right.
MR. SEGAL: No, we've got the witness. I don't want it done in front of the witness, either. We are not going to coach the witness; we are not going to have that. I think it is improper. We can do it out of the hearing of the witness, of course, Your Honor.
MR. MURTAGH: Of course. Your Honor, can we do this in the morning, if that would suit the court? Whatever the court desires. I don't want to impose upon the court. I know it is 5:00 o'clock.
THE COURT: I will hear you in the morning. Take a recess until 9:00 o'clock.
(The proceeding was adjourned at 5:00 p.m., to reconvene at 9:00 a.m. on Friday, August 10, 1979.)