Trial Transcripts

---

F U R T H E R  P R O C E E D I N G S  9:00 a.m.

THIS CAUSE came on for further trial before the Honorable Franklin T. Dupree, Jr., United States Chief District Judge, and a jury, on Tuesday, August 14, 1979, at Raleigh, North Carolina.

(The following proceedings were held in the absence of the jury and alternates.)

THE COURT:  Any more trial briefs to be filed this morning?  I got this one about 8:30, and I have already, of course, read that from cover to cover.  Got any more?

MR. MURTAGH:  Judge, we had filed that --

THE COURT:  (Interposing)  Yeah.

MR. MURTAGH:  It's moot because it was in support of the --

THE COURT:  Thank you.

MR. MURTAGH:  But they are interesting cases.

THE COURT:  Well, tell me about this interesting case.  Whose Motion is it?

MR. MURTAGH:  I guess it is our Motion.

THE COURT:  All right.

MR. MURTAGH:  Judge, we feel that the introduction of psychiatric testimony is not warranted in this case.  In other words, this is not a situation in which the Defendant has pled not guilty by reason of insanity and the Government has offered affirmative evidence to show that he, you know, was sane, knew the difference between right and wrong and could adhere to the right.
     Rather, what has happened in the past is that a form of expert character testimony found its way into the record.  And what we disagree with is the starting premise on which Dr. Sadoff bases his opinion.
     It is his opinion that the crime has to be the product of a psychotic or sociopathic --

THE COURT:  (Interposing)  Well, let's get this thing in focus.  I think under Rule 404, under its express terms, that character evidence obviously can be introduced by a defendant.  There is no question about that at all.
     But there are two questions: first, can you introduce expert psychiatric testimony; that is, a man of good character and a fellow who would not commit this kind of crime; and second, is it the -- and this is directed to Defendants -- is it proposed to show that only psychotic people commit this kind of crime?
     There are two separate questions, as I see it.  Let's get an answer from the Defendant on that.

MR. SEGAL:  The question that we intend to pose to psychiatrists is not that only psychotic persons could commit these acts.

THE COURT:  All right.

MR. SEGAL:  We intend to --

THE COURT:  (Interposing)  If that answers the question, then that is all I wanted to know.

MR. SEGAL:  I just wanted to add --

THE COURT:  (Interposing)  You just wanted to show that the man is a peace-loving, home-making type of character who doesn't hack up his wife and children?

MR. SEGAL:  Yes, sir.  The typical kind of character question is traits of character that we traditionally always heard, but always in the form that has been very much criticized and judges and scholars about, you know, somebody comes in with some garbage about, "I live in the community.  I haven't heard he beat up on his wife."

THE COURT:  All right.  Now, you were going to add something.  Add that.

MR. SEGAL:  And in this instance, the rules have changed.  The Federal Rules of Evidence say: although you still allow the traditional mode in of this community hearsay, we now allow in, you know, specific evidence of the opinion of the witness as to character on specific character traits.
     And we will phrase the question, really, you know, in terms of peacefulness and non-violence and in the manner that Your Honor described.  And because the rules now allow the witnesses to give his or her opinion, that, in fact, is why psychiatrists are committed to say, "This is my opinion."  "What do you base it on," just as any other character witness can be cross-examined on, "What do you base it on?"
     It has always been one of the traditional forms of the prosecution cross-examination that when a witness got up and said, "He has got a good reputation for being peaceful, non-violent, not beating up on his wife."
     So, they ask him, "Who did you ever hear talk about that," attacking the basis for the opinion.
     Now, the Federal Rules admittedly -- the Advisory Committee notes say, "We are expanding it.  We will let the personal opinion in."
     And as we noted in our Memorandum of Law, Your Honor, they specifically talked about psychiatrists being the kind of character person that are encompassed by the Rules.

THE COURT:  All right.  I have the answer to that question.  Go ahead.

MR. MURTAGH:  Well, Your Honor, I would just like to bring to the Court's attention that Dr. Sadoff's report to Mr. Segal, which was sent on April 23, 1970, and which is basically what he testified to at the Article 32 investigation, although not what he told the Government attorneys who interviewed him later, that the type of mental state that could account for the slaying of his wife and two daughters on February 17, 1970, in their home, would need to be one of the following: a psychotic individual with little or no feeling for other human beings --

THE COURT:  (Interposing)  Well, we are over that hurdle now.

MR. MURTAGH:  Okay.  Then there is another one: an acute psychotic reaction precipitated by drugs, toxins or organic condition.

THE COURT:  Well, we are over that.  He is not going to attempt to get that kind of evidence in.  That brings on a whole lot more talk.

MR. MURTAGH:  Yes, sir.  A seriously unstable psychoneurotic individual with impulsive behavior and poor ego control -- and I don't think that is in point in this case.  A character and behavior disorder, sociopathic personality disorder manifested by the acting out of internal conflicts in an antisocial and destructive way.
     What Dr. Sadoff has said is that the crime has to be -- can only be -- the product of a mental disease or illness or character disorder.  He doesn't --

THE COURT:  (Interposing)  They have disclaimed, so I understand them, any intention of undertaking to offer that kind of evidence in this trial.  And he is nodding affirmatively.  So, let's forget that.

MR. MURTAGH:  That one is over.

THE COURT:  Yeah.

MR. MURTAGH:  The other thing that Dr. Sadoff testified to was based on his interviewing techniques and his experience, he could tell whether an individual was holding back or hiding anything.
     I think Dr. --

THE COURT:  (Interposing)  Yeah, now, that is something else.  That is not character.

MR. MURTAGH:  That is not character.  And let me just give you an example of this.  In Dr. MacDonald's interview with Dr. Sadoff, one of the first things he told him was that his wife went to class that night in English Literature.
     We know that is not true.  She went to a class in Child Psychology.  And while it may seem a minor point in terms of whether it was Child Psychology or English Literature -- although we do think it was relevant that it was Child Psychology and what she heard that night and what she said in class -- the point is that Dr. Sadoff is in no better position than this jury to determine the factual issues.  And what we stringently OBJECT to --

THE COURT:  Well, I am not going to let him invade the province of this jury on the question of credibility.  I think that is a question of -- now, to the extent that he says he is a man of good character, that is something else.  And good people of good character arguably don't tell lies.

MR. MURTAGH:  Judge, if he does say that, it seems to me --

MR. SEGAL:  (Interposing)  Your Honor, I would OBJECT.  I have actually -- I have frankly got better things to do, and would like a release from this morning's hearing if this is what we are going to hear.
     Mr. Murtagh is trying to re-try the 1970 Article 32 proceeding.  Now, he has got to wake up to the fact that in 1979 there is another case going forward here.  We are not re-trying that.  And for him to ask -- and I OBJECT to his asking for an advisory ruling.  As a matter of fact, Your Honor, I am going to ask Dr. Sadoff what is his opinion of the character trait of truthfulness of Dr. MacDonald.
     And it is a proper character question.  I don't want to have Mr. Murtagh arguing the issue before I get a chance to ask my questions.

THE COURT:  Well, I am not going to decide his credibility.

MR. SEGAL:  All right.  Now --

THE COURT:  (Interposing)  But there are two facets to this thing: first, is he a man of good character.  And of course, that encompasses truthfulness.  But if you propose to show by an expert that because of certain psychological psychiatric tests and so forth that he is now telling the truth -- in other words, a substitute for a lie detector test -- then, of course, that brings on more talk, because we are going to have to find out what is the state of the art in all of those things.  And I am just not prepared to rule on that this morning.

MR. SEGAL:  I, too, understand, Your Honor.

THE COURT:  I think this thing is helpful in that we are able to zero in on what you propose to do.  And to that extent, it is like all the other things -- all the other in limine motions -- that we have heard and ruled on or got advisory opinions, if you will, on.

MR. SEGAL:  Well, let me make it clear: I set it out in my brief also on that.  But essentially we are going to ask Dr. Sadoff the same type of character questions that are traditionally available to ordinary non-professional witnesses.  And we will select the character quality that are relevant, for instance, we may not ask him, "What is your opinion as to honesty," since theft or non-theft is not an issue here.
     We might not ask him as to sobriety, which is a traditional character question, because we don't think sobriety is an issue.  Now, Your Honor, of course, we will ask as to some of the matters Your Honor suggests.  And I think we will ask him his opinion as to his character for truthfulness.
     Now, I don't think that necessarily -- Mr. Murtagh is running off on a different tangent.  This is not 1970.

THE COURT:  I know.  But let's don't try Murtagh.  Let's just try our case.

MR. SEGAL:  All right; I agree.  I just don't want us to spend an inordinate amount of time.  We have a case to put on ourselves.  That should not be the debate this morning.  We need to edify the Court, I think, on the questions the Court has raised this morning.

MR. MURTAGH:  Your Honor, I do think it is relevant as to his past tesimony at the Article 32 investigation, because I think we reasonably can expect that he would testify in conformity with that, else Mr. Segal would not put on.

THE COURT:  If he has asked the questions and there is no objection, I assume he will too.  But now, he is telling me he is not going to ask that type of question.

MR. MURTAGH:  Okay.

THE COURT:  And if I know you, you are going to object if he does.

MR. MURTAGH:  Yes, sir.

THE COURT:  While I won't rule on anything until it comes up, I can tell you that it is my present opinion that if you get into that kind of nebulous psychiatric area of inquiry, then I am going to have to be shown a whole lot more than I know sitting here this morning.

MR. MURTAGH:  Yes, sir.  Now, if he does testify about his examination of Dr. MacDonald, and I would assume he would have to as the basis for offering any opinion as to his character, that will bring out the psychological testing of Dr. Mack.  And Dr. Mack provided a report to Dr. Sadoff which he relied on in making his findings.  And Dr. Mack testified before the grand jury after we got a waiver from Mr. Segal.  Dr. Mack is not available to us at this time as a witness, because he has informed Mr. Blackburn by letter that he has been informed by Mr. Segal that he is a Defense witness, and therefore won't talk to us.
     I think whether he talks to us or whether he testifies or not, if they open the door on psychiatric testing in this case, we are entitled to bring out all of the reports, all of the testing, any of the statements of Dr. Mack that Dr. Sadoff either relied on or chose to ignore.

THE COURT:  Well, aren't you really just entitled to rebut whatever they put up?

MR. MURTAGH:  Yes, sir.

THE COURT:  Well, if they don't put up anything, then there is nothing to rebut.

MR. MURTAGH:  Well, what I am saying is that by not putting Dr. Mack on the stand and just taking Dr. Sadoff, I think that --

THE COURT:  (Interposing)  Well, Mack apparently is alive and under subpoena.

MR. MURTAGH:  Yes, sir.

THE COURT:  So, if they don't use him and they have used something which you think he can rebut, then you use him.

MR. MURTAGH:  All right.  Your Honor, the only other thing I can think of that pertains to this --

THE COURT:  (Interposing)  Lock that door back there, please, somebody.  I just can't listen and have people parading in and out.  We will let them in every 15 minutes if they want to.

MR. MURTAGH:  Your Honor, if they do open the door on psychiatric testing, psychological testing, I think that the Government is entitled to pursue that to the limit, whether it would be a matter that we would not be able to bring in our direct case.

THE COURT:  Well, I think you are entitled to proceed under the Rules of Evidence which govern both parties.

MR. MURTAGH:  Your Honor, we would also Move -- if there has been any additional psychiatric or psychological testing other than that performed by Dr. Mack and Dr. Sadoff in 1970 -- we would Move for the results of that examination.

THE COURT:  They are under a continuing Order to produce that along with all the other reports; aren't they?

MR. MURTAGH:  That was my understanding, Your Honor.  But I don't know whether any additional testing has been done or is anticipated.  And I think --

THE COURT:  (Interposing)  Well, ask them.  Wade, have you done any more?

MR. SMITH:  Yes; we have done some more.

THE COURT:  All right.  Give them the report.

MR. SMITH:  We will make the stuff available.

THE COURT:  Okay.  We handled that one in a hurry.  Go ahead to the next one.
     Is that all?

MR. MURTAGH:  I think so, sir.

THE COURT:  I thought you were going to come down here and enlighten me on what 405 means.  That is what I came -- studied half the night trying to find out.

MR. MURTAGH:  Well, Your Honor, many of the problems that we anticipated with this testimony have been resolved in the first fifteen minutes here by the Court's ruling and by the Defense's --

THE COURT:  (Interposing)  Do I take it, then, that you have no objection to his introducing an expert testimony, expert witness, to show that this Defendant is a man of good character?

MR. MURTAGH:  If we are talking about a man of good character, as that term is commonly understood in the Rules of Evidence as opposed to someone incapable of committing the crime --

THE COURT:  (Interposing)  We are past that.  He has disclaimed that.

MR. MURTAGH:  Well, let me confer.

THE COURT:  I am intrigued by the question that is raised relative to the applicability of 405; that is, whether or not you can even prove character by an expert witness.

MR. MURTAGH:  Well, Your Honor, I don't think --

THE COURT:  (Interposing)  Nobody in the world ever thought of it until the Seventh Circuit came up with that Stagg case.  And they didn't even cite 405.  But there it is.  And that is the only one that I know of anywhere and the only one we have been able to find.
     Have you fellows got any other cases on that thing?

MR. SMITH:  No, sir.

THE COURT:  The California case --

MR. SMITH:  (Interposing)  Yes, sir.

THE COURT:  Well, yeah.  That is under a California statute that they introduced that in, in that sex molesting case.  But that is not in point here.
     But the Stagg case is, as far as I know, the only one that anybody has come up with.  And they didn't address the point.  They just assumed that since 404 says it is competent that whoever you bring down here can prove it.

MR. MURTAGH:  Well, I think if Dr. Sadoff were a straight character witness as opposed to a Defense expert who examined Dr. MacDonald, there would be no question.  I think he would not be barred from testifying as a character witness just because he happens to be a psychiatrist.
     But I don't think the rules were intended to mix expert testimony and expert character testimony, because the rules treat them separately.
     We still maintain that this is an issue that will only confuse the jury, and it is something -- what the case really hangs on, I believe, is the credibility, or lack thereof, of the Defendant's account of the supposed attack by the intruders.
     That is something that a jury, as opposed to a psychiatrist, is much more capable of determining.  This psychiatrist doesn't know anyting about this case.  But that is really what he is going to be testifying to.

THE COURT:  Well, I don't know what he is going to testify to.  But you will be here.

MR. MURTAGH:  Yes, sir.

THE COURT:  If the question is asked, I will make a lot of book that if you think it is objectionable you will be on your hind legs real quick.

MR. MURTAGH:  Yes, sir.

THE COURT:  Anything else to come before us this morning?

MR. SEGAL:  No, Your Honor.

THE COURT:  All right.  I wish we had known that.  I figured if the lawyers estimated a half hour, that it would certainly take an hour.

MR. SMITH:  Judge, maybe the rule has changed: now you can divide.

THE COURT:  Have you got anything else to come up this morning?

MR. BLACKBURN:  I don't think we have anything else.

THE COURT:  Do you want to continue the argument on the Motion to Dismiss?  I see we have got the press here and they have got to have something to write about.

MR. MURTAGH:  Your Honor, I guess the other Motion in limine that is still pending -- oh, no; I guess it would be the Defense Motion to Introduce Colonel Rock's report.  And we had filed a Motion in limine, I believe, to keep it out.
     I think, since Mr. Segal tells us that we are not re-trying the Article 32 and wanted me to wake up to that fact, I don't see how Colonel Rock's report is either relevant or competent evidence in the case.
     It really doesn't matter what he thought.  That was 1970.  This is 1979.

THE COURT:  Well, I had been promised and am at this moment handed the Defendant's Brief in Support of the Admissibility of that Report.

MR. SEGAL:  That was filed last week, Your Honor.

THE COURT:  Well, I say I was just handed it this moment.

MR. SEGAL:  I understood it was filed last week and it hasn't been before the Court.
     I would suggest deferral of the introduction of that matter until Your Honor has had a chance to read both the authorities and any response authorities.  I see no reason for an attempt to make a decision at this point.

THE COURT:  I don't either.  And I would be hesitant to go home this weekend with nothing at all to do about this case.  And so, I don't intend to do that.
     All right.  We will keep that one on hold.  He won't bring it up until -- have you responded to this?

MR. MURTAGH:  Your Honor, I understood that to be a response to our Motion in limine.

THE COURT:  To yours?  Do you want a surrebuttal?

MR. MURTAGH:  We may, sir.

THE COURT:  Okay.  We will recess as informally as we came in and let our friends back there phone this in.  We'll see you at 10:00 o'clock.

(The proceeding was recessed at 9:21 a.m., to reconvene at 10:00 a.m., this same day.)