Trial Transcripts
August 15, 1979
Dr. John Thornton
Scans of original transcript
F U R T H E R P R O C E E D I N G S 9:30 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 Wednesday, August 15, 1979, at Raleigh, North Carolina.
(The following proceedings were held in the presence of the jury and alternates.)
THE COURT: Good morning, ladies and gentlemen. I say, welcome again to the Honorable William H. Bobbitt, Chief Justice Emeritus. I am not sure that the jury met you yesterday, so I wanted to reintroduce you, sir. We are honored to have you with us again.
Any further evidence for the Defendant in the case? You had some more questions, did you?
MR. MURTAGH: Yes, sir.
(Whereupon, DR. JOHN I. THORNTON, 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 9:31 a.m. (resumed)
BY MR. MURTAGH:
Q Dr. Thornton, yesterday, I believe, when you were describing on direct examination your experiment involving the pajama top -- or, I'm sorry, a piece of dacron polyester on the sled. You described, I believe, the object on this sled and then tied by two pieces of cord; is that correct?
A No; to be precise, first of all, I did not say it was dacron polyester. That is a trade name. It was polyester cotton. The cloth was tied by three cords to the sled.
Q And was the sled secured at either end by two pieces of clothesline?
A That's right.
Q Was one piece of clothesline anchored at the other end of a table?
A Yes.
Q And the other end was held by the person who assisted you?
A Yes.
Q And it was whipped back and forth in what I believe you described as a harmonic-type motion?
A Well, the whipping back and forth of the hand would result in the target in a harmonic oscillation, yes.
Q Could you describe, sir, what you mean by "harmonic motion"?
A Harmonic motion is a term from physics. Actually, it is defined from the standpoint of the energy of a moving object as it is displaced from a fixed point. In very simplistic terms, it is the movement back and forth in which the maximum velocity would be at the center of the traverse. And at each end of the traverse the velocity would be zero.
Q Would it be accurate to describe it as a curve, something like what I have just done with my hand? In other words, are there peaks and valleys in the amount of velocity of the object?
A Yes.
Q Is it accurate to say that in conducting your experiment, the sled rested on a table at all times?
A Yes.
Q And when the motion was back and forth, it was lateral; is that correct?
A Yes.
Q Did you whip the sled up and down?
A No.
Q Would it be accurate to say that the sled was on a flat plane at all times?
A Yes.
Q Did you actually plunge the ice pick into the --
A (Interposing) Yes.
Q -- in the sled?
A Yes.
Q Would you describe by using your hands what motion you used?
A Yes; I stood over the target. I knew where the center of the traverse would be, and I would put the ice pick directly over the target at a very short distance, so that I could assure that I would hit the target close to the center of the traverse. And then I would stab into the end of the cloth as the sled would travel underneath.
Q Okay; and I believe you explained on direct examination -- well, let me show you your chart, if I may. Let me hand you Defendant's 66, and let me borrow the pointer, if I may. What does this material beneath the double line represent?
A The target material.
Q Could you tell us what that was on your experiment?
A Ham.
Q You mean, you took a piece of ham?
A Yes.
Q You mean, like in a ham sandwich?
A Yes.
Q Okay; I'm sorry. And did the ham absorb the thrust of the ice pick?
A Yes.
Q You found no torn areas when you did this?
A No.
Q Would it be accurate to say that the ham prevented the fabric from tearing? Do you understand my question?
A Yes; but I don't see a connection, or a necessary connection with the ham. The ham is a resilient material and capable of a certain amount of deformation that I think, in part, explains the fact that the holes are circular in appearance following the conclusion of the experiment. I think any resilient material would be similar.
Q Would it be accurate to say you used ham because under laboratory conditions it was the closest thing to a human body that you could come up with?
A Yes.
Q And so this ham, which -- I understood you to say yesterday "tissue," and I thought you were referring to like Kleenex. But when you said "tissue," you were referring to the ham itself?
A Yes.
Q That absorbed the ice pick to approximately what depth? Is there a scale representation here?
A No; I did not determine that. I would estimate it at probably two inches.
Q In other words, your thrust would penetrate into the ham for approximately two inches?
A Yes.
Q Did the ham absorb the thrusts, so that when the material was being whipped back and forth it supported the material and it prevented it from tearing?
A Well, it absorbed some of the energy. I don't think that that is the determinative factor in conducting the demonstration. I think that probably was the manner in which I would stab down and then pull the ice pick back up.
Q In your opinion, Dr. Thornton, without a ham or some other object like a human body beneath the fabric -- if it were unsupported and moving back and forth -- in your opinion, sir, would there be tearing?
A No; I think that interpretation, really, would be a perversion of this particular experiment. The experiment was designed to answer a question, which is whether or not a circular hole in the fabric necessarily means that the fabric was stationary.
Q I thought I understood you to say on direct examination that the unsupported fabric -- and I believe one of your photo macrographs showed a torn hole; is that correct?
A Yes.
Q Did that torn hole result from an unsupported piece of fabric being stabbed?
A Yes.
Q Okay, now, with regard to --
A (Interposing) I don't mean to contribute to any confusion here. This outline is what I consider to be a plausible explanation for my observed results. The question of the support versus non-support is really another matter, and supporting the fabric I can make some what I consider to be reasonably valid assumptions in designing the experiment.
When we turn to unsupported fabric, then I am not sure how I would approach the design of the experiment.
Q Let me ask you a question. Assume hypothetically that someone is wearing the pajama top, Exhibit 101, and I think yesterday on cross-examination I showed you that there are numerous puncture holes in the back of it; is that correct?
A Yes.
Q Okay, so let's assume that somebody is wearing that and that the garment has some tension on it. In other words, that the back is somewhat bowed. And that that person is being stabbed violently with an ice pick. In your opinion, sir, would that produce -- would that necessarily produce torn areas in the pajama top?
A Certainly punctured areas. Torn areas -- I don't know. I really can't speculate as to the factors that would be involved in something like that.
Q Would it, in your opinion, sir, produce puncture areas in the back of the person that was wearing it?
A Again, I don't have any way to tell -- of making a determination.
Q Now -- excuse me -- let me get back here with the pointer. Dr. Thornton, with regard to your test prints of the handprints of which you showed the slides.
THE COURT: Mr. Murtagh, if you are going to another subject, I was going to call a little bench conference myself right now. We haven't had one this morning.
B E N C H C O N F E R E N C E
THE COURT: Gentlemen, first off, and this is not why I got you up here but it is something that is on my mind so I am going to tell you: all these experiments and all this examining and cross-examining and so forth -- it is interesting and it is technical and it may be going somewhere. But, for whatever it is worth, I think this case is going to rise or fall on one thing and one thing alone, and that is whether or not this jury buys the Defendant's story as to what happened.
That is all there is in this case. We have been here five weeks, and that is still all there is in this case. I just make that as an observation. The jury -- I have done my best to keep them in line and up to now they seem pretty good and happy, but I warn you that somebody could be prejudiced by unnecessary dragging of the case out.
That is not to say I won't let everybody have his full say. I will do it if I can. What I really got you up here for is to talk about this Stoeckley problem. I understand she is in custody. I understand that she can be kept like that for 72 hours without being let out.
Now, as far as finding her and making her available is concerned, I think the Court has done about all it can do. I suggest to you that you ought to get your evidence so scheduled as to accomodate this particular thing rather than run the risk the next time she goes that she can't be found by anybody.
So, now that she is available, I think that moots the question of whether or not we can take up secondary evidence of what she would have said, and I don't think in this kind of case -- if she is available -- it ought to be done. My feeling about that is that, having made her available, that you must now avail yourself of her availability.
MR. SEGAL: I absolutely agree that it is our desire to do that. We need to know, however, Your Honor -- you say she is in custody. Is she in custody here in Raleigh or is she in Greenville?
LAW CLERK: She is in custody in Greenville --
THE COURT: (Interposing) Greenville, South Carolina.
LAW CLERK: And they are ready to transport her here.
MR. BKACKBURN: Pickens County jail is what I have been told.
MR. SEGAL: Well, Greenville is about three hours -- two and a half hours.
THE COURT: More than that. It is three hours comfortably to Charlotte, and Greenville is almost that same distance the other side.
MR. MURTAGH: Do you know who runs the Police Department in Greenville? Paul Stombaugh.
MR. SEGAL: Maybe he will drive her down for us. Your Honor, I understand she has been taken into custody pursuant to a warrant as a material witness in this case. I would request that she be brought here forthwith to Raleigh and, as soon as she is here and we have a chance to interview her, we intend to call her as a witness. That is my request and if I can be notified --
THE COURT: That is all we needed to know. Just tell the magistrate that there is no bond and just bring her here and make her available to the Defense counsel.
LAW CLERK: He is awaiting word from our office.
MR. MURTAGH: I will try and be brief, Your Honor.
(Bench conference terminated.)
BY MR. MURTAGH:
Q Dr. Thornton, let me repeat my question. With respect to your test handprints on the fabric that you used. What position, sir, was the cloth in when you put your handprint on it?
A In various configurations. Some of the series -- several series of the experiments were conducted with the cloth on a flat surface with my hand pressed down on it. Other series were conducted in which I would put my hand over the cloth which was supported by a roll of paper towels in various positions -- upright, horizontal, vertical, somewhere in between -- and with different positionings of the hand.
Q Did you conduct any experiments in which you took a piece of cloth, say a fairly large piece of cloth, hold it up something like this and put your hand on it?
A Yes.
Q And did you see those?
A No, you did not see those.
Q Now, Dr. Thornton, with respect to areas "C" and "D" on the sheet -- I believe you used Government photos 820(a) and 821(a); do you recall that?
A Yes.
Q Let me hand these to you. And, if I recall your testimony, sir, you testified that the areas which Mr. Stombaugh referred to as resembling handprints could have been caused by a heavy drip of blood and the water portion or the electolyte portion migrated to the outside of the stain; do you recall that, sir?
A Yes.
Q I would ask you to hold up one of those photographs -- either one. Do I recall correctly, sir, that when referring to the drip -- and I think it might have been area "C" but correct me if I am wrong -- in talking about the heavy drip, you pointed to one area; is that correct?
A I think this is probably a representative area.
Q All right, sir, that would be one area that would, in Mr. Stombaugh's opinion, correspond with a finger?
A Yes.
Q And you are saying that was caused by a drip, or could have been caused by a drip?
A My testimony is that I think that it was not caused by a finger and that it probably was caused by a drip.
Q Okay, so that would be this one over here. How about that one over there?
A Certainly, my testimony would be the same in connection with that area with respect to it not being a finger. I think it is probably a drip.
Q Okay, now, would this be a drip from some altitude or elevation?
A I don't know.
Q So then you would have another drip over here?
A Yes; this area shows some indication of smearing also.
Q Well, then would it be correct that in your opinion you would have three fairly large drips in the same area? By the "same area," I mean the area marked "D" on the sheet?
A I don't think I understand your question. I see a great many drips there -- dozens.
Q Okay, well, a great many drips that would have produced that particular stain, is that what you are saying? In other words, is that a random stain that occurs from a number of different drips which, taken together, formed what Mr. Stombaugh believes to be a hand impression?
A I don't know that I would embrace the notion that it is a random distribution. I have no idea what the factors are that resulted in that particular pattern.
Q But your opinion with respect to the migration or the drip theory is related to each individual finger consideration -- I'm sorry, configuration? Do you understand my question?
A Yes; I don't think I agree with what you are saying. My conclusion concerning this and also section "C" is number one, that it's consistent with a bloody hand impression because I can't duplicate this type of pattern with a heavier area in the center.
At that point then I think it is reasonable to say, "Well, then why do you get a heavier area in the center and a lighter area in -- at the periphery?" I think it is plausible to conclude that it is the result of some migration of the blood from that heavy area.
Q In your experiment, were you able to control the amount of blood that was on your hand?
A Yes. I couldn't express it in quantitative terms, in terms of milliliters or anything like that; but yes, I could control the amount of blood.
Q Well, as I understood your testimony yesterday, you had either smeared or completely coated your hand to start out with?
A There were some experiments like that, yes -- a very heavy deposit of blood.
Q And is it your opinion, sir, that if a hand had some random distribution of blood on it, it could not have caused either stain "D" or stain "C"?
A Yes, that would be my conclusion.
Q And that's based on the migration of the stain?
A Well, principally the fact that blood on a finger area does not give the heavy deposit in the center of the impression. I weigh that more heavily than other aspects of this.
Q Now, I believe yesterday on direct and talking about your qualifications, Mr. Segal brought out that you authored -- I'm sorry, edited -- the second edition of Kirk's Crime Investigation?
A Yes.
Q And I believe there was some reference to the chapters on blood and physical characteristics of blood?
A I believe so.
Q And let me show you Kirk's Crime Investigation, directing your attention to the photographs on page 169, 170, and 171 and 172, and ask you to take a look at those.
(Witness complies.)
A Yes.
Q Now, would you tell us, please, what those photographs depict?
A Figure 14-1, which appears on page 169, is the effective velocity on blood spatters -- a single drop of blood dropped perpendicularly to distances indicated: A, two inches; B, four inches; C, three inches; D, 16 inches; E, 32 inches; and F, 60 inches.
Q Okay. Let me just interrupt you there and ask, would you describe perhaps, if you would, sketch it on the back of your chart or maybe one of ours, what basically --
MR. SEGAL: (Interposing) Excuse me, I prefer not to do that. Use another piece of paper or one of the charts here.
MR. MURTAGH: Surely. The backs of all of ours are rather dark, but at your request I will defer.
BY MR. MURTAGH:
Q Would you describe, please, to the jury, Dr. Thornton, perhaps using your book as an illustration, what happens when a single drop of blood strikes an object?
A Well, I can --
MR. SEGAL: (Interposing) I OBJECT.
THE COURT: I understood that counsel was going to withdraw the question and restate it, because the witness apparently was not understanding what was desired of him.
BY MR. MURTAGH:
Q Dr. Thornton, let me ask you whether you would agree that depending on velocity and angle and other factors of the object which the blood strikes -- is it accurate in your opinion that when blood strikes an object, the blood drop breaks up and a portion of it -- or portions of it -- radiate out from the center?
A Now, that may well occur. My hesitancy here a moment ago was because it is difficult for me to define the scope of my response. The subject is somewhat complex.
Yes, on many surfaces the droplet of blood will break up, casting off satellite droplets of blood, exceedingly minute droplets of blood. But this is affected profoundly by the nature of the target material as is discussed on the monograph that you are holding there.
Q Let me just identify this for the record. I am holding a book entitled Flight Characteristics and Stain Patterns of Human Blood, which I believe is referred to as your text, and was edited by Herbert P. -- I'm sorry, Herbert L. MacDonald. Are you familiar with that text, sir?
A Yes.
Q Let me show pages 48 and 49, which hold some fairly large photo micrographs and ask you if that helps you to illustrate your testimony?
A No, not those. First of all, they aren't photo micrographs. Secondly, this particlar type of impression isn't relative to anything that we have discussed so far in this case.
Q Well, I thought we were talking about blood drips on the sheet?
A Yes, but I'm not -- when I say "blood drips" I am not referring to where blood impacts on an area and then drips from that blood -- the initial drip. I am speaking of blood dripping from a wound in rather large droplets or drops.
Q Would it be perhaps more accurate to say that that is directly, as opposed to a single drop of blood, which is what I believe you described yesterday?
A I don't follow.
Q My question, Dr. Thornton, is that I thought I understood you to say on direct examination that the handprint-like stains on the sheets were caused by a single drop of blood with regard to each finger-like stain?
A Oh, no; there may be more than one droplet of blood in each of those areas, not just one drop of blood. But in my terminology, the way I was describing it, I was using "drip" to mean -- as you call it -- direct bleeding, a rather substantial amount of blood originating from a wound.
Q If I were to tell you that those stains on that sheet -- by that, I mean areas "C" and "D" -- are found to be consistent with Type A blood, would you agree that if that is from direct bleeding, it would have to be from someone with Type A blood?
A Yes.
Q I believe on direct examination you were talking about the bottom sheet from the master bedroom, Government 120. Do you recall that, sir?
A Yes.
Q And you were referring to spatter patterns on that. Do you recall the size of some of those spatters that you talked about?
A Well, they ranged from -- the smallest I could measure was on the order of .005 of an inch. They ranged -- well, there was a continuum. They just merged into large stains that would have been a tenth of an inch to .0025 of an inch.
Q Would it be accurate to say they went from the barely visible to the readily visible?
A Yes.
Q I believe you said that in your opinion that type of fog or aerosol-type effect occurs when some object strikes a human body?
A That is right.
Q Now, let me ask you -- I believe Counsel referred to Exhibit 307, which actually is the debris removed from this exhibit -- so I think he was referring to 306 in evidence, what has been referred to as the club. Let me ask you -- with respect to this fog or aerosol-type effect -- is it analogous or similar to someone beating a rug to dust it out, and when you strike the rug -- in the area where the rug beater strikes the rug -- you get a dust cloud, in effect?
A I think that is an apt analogy.
Q Okay; so taking that analogy, would you say, in your opinion, that if someone were struck with this club, you would get this aerosol-type effect in the area closest to the part of the body struck and where the object strikes it?
A Yes.
Q Now, would the pattern where the blood lands be determined by the angle or the relative position of the person when struck?
A Yes.
Q Okay; so if someone were in a nearly supine position, or close to their back -- on the floor on their back; right?
A On the floor.
Q And they were struck downwards, or that way (indicating), where would the pattern be? Where would the greatest concentration of the blood be?
A Closest to the floor.
Q And what portion of the garments will be most susceptible -- that is, the garments of the assailant -- to the spattering?
A The closest would probably be the arm areas and the leg areas.
Q You say the arm and the leg areas. I would think -- and let me ask you, in your opinion -- are the legs of my trousers closer to the area of impact than the sleeve?
A In that particular configuration; yes.
Q They are; okay. Now, would the spatters that result from that -- some of them would be larger, I take it? I mean, are they all almost invisible, or are there some of them quite large?
A Well, they are all quite small, speaking of that type of impact. There is a contiuum from the barely visible to -- oh, a spot that is several millimeters in diameter.
Q You say they are all quite small?
A Well, they are certainly quite small compared to an impression such as you see on "C" and "D" resulting from a drip from an open wound.
Q Let me ask you -- let me read to you from page 175 of the book you edited, reference blood -- physical investigations -- and see whether you agree or disagree with this statement: "...Propulsion from moving objects, e. g., bloody weapons. Here the blood drops vary in size, but tend to be rather large and may travel considerable distances. Massive deposits of blood may break away in rather large drops and at a high velocity from swinging objects. This resembles the physics of a slingshot or catapult. The largest blood spot produced will not, however, be larger than a freely formed drop that falls under gravity alone. The blood separates from such a moving object from two causes: centrifugal force, acting on blood swung in an arc, and (b) abrupt change of direction of the moving object as reversal of direction between successive strokes as in beating." So, do you agree with that statement?
A Yes; I do. May I clarify my answer?
Q Surely.
A That really refers to something else. It is a throw-off of blood from weapons. And there is some indication at the scene of throw-off from a club. It is found on the ceiling, where you might expect it.
There is another paragraph in there -- I think it is the preceding paragraph -- that speaks of propulsion by impact. And it is the propulsion by impact that we are really concerned with on these very, very small droplets of blood.
Q Okay; well, let me ask you -- do I take it that in conducting your examination, you were not concerned with the throw-off of larger drops of blood?
A No; I was concerned with it -- yes.
Q Let me ask you with respect to some of these very small drops -- I don't know whether "droplet" is the right term or not -- the ones that range in size from 1/25,000 of an inch to .005 of an inch. Do you call those drops or specks or what?
A I would call them very fine droplets. I don't think those numbers you gave me were quite right. They don't mesh with my recollection of my testimony.
Q Dr. Thornton, on page 5197 of the transcript, in response to a question by Mr. Segal concerning the sheet, you answered: "...Well, the aerodynamic characteristics of blood in flight, traveling through the air -- this subject has been worked out in some considerable detail. Very fine droplets of blood such as this on the order of 25,000th of an inch down to perhaps 5,000 of an inch in diameter are characteristic of blunt impact -- blunt impact of some object such as a club and a human being in an unexposed portion -- I'm sorry -- in an exposed portion -- an area that is not covered with clothing." I believe I said "1/25,000." But we are talking about very small droplets?
A Yes.
Q Okay; some of those practically invisible?
A Yes -- tending toward invisible; yes.
Q Sir?
A Tending toward invisible.
Q Would the examination -- if they are tending toward invisible, would not one factor be the acuity of the vision of the examiner?
A Yes.
Q Let me ask you -- with respect to some of those very fine droplets, is it possible that some of them are invisible to the naked eye?
A Yes.
Q And would their visibility or invisibility be affected by such things as the color of the substrata?
A Yes.
Q Okay, and the sheet you were examining is rather light?
A Yes.
Q And the blood droplets are darker?
A Yes.
Q Okay. Now, with respect to this pajama top, I believe you testified that you found no fine droplets; is that correct?
A Not of the type in nature that I would have expected had the pajama top been in close proximity to the victim at the time that the impact occurred.
Q Okay. Let me ask you: are you familiar with the chemical known as Luminol?
A Yes.
Q And what is Luminol used for?
A Detection of blood.
Q Is it used to detect very minute particles of blood?
A Yes.
Q Does it detect particles of blood which are, in fact, almost invisible?
A Yes.
Q Did you conduct an examination of this pajama top using Luminol?
A For what purpose?
Q Well, to see how many very fine aerosol-type droplets of blood?
A No. I don't think it would be necessary to employ the Luminol test for that purpose. That would be using a piledriver to kill a fly.
I examined the garment under magnification --
MR. SEGAL: (Interposing) I am sorry. I couldn't hear you.
THE WITNESS: I examined the garment with magnification and found no distribution of the type that we see on the bottom bedsheet.
BY MR. MURTAGH:
Q Okay. Now, are you saying that you found no droplets which are -- did I understand you to say about and eighth or an inch or one-twentieth of an inch?
A No; I didn't say that. Certainly that is not the -- what do I want to say?
Q I don't know.
A Clearly there are small droplets of blood on the cloth. I have no quarrel with that. But the number, the size, and the distribution do not correspond to anything like what I had seen on the bottom bedsheet.
Q Is it accurate to say that the bottom bedsheet is not soaked in blood?
A That is correct.
Q All right. And at least some portions of this pajama top are soaked in blood?
A Yes.
Q And in some of those unsoaked portions, did you or did you not find small droplets of blood?
A Yes.
Q Okay. Now, let me ask you: did you make any assumptions with respect to the position of the pajama top as worn by an assailant during an assault with a club?
A Yes; I think I did.
Q And what assumptions were those, sir?
A That the pajama top would be worn in the normal manner.
Q Did you conduct any experiments in which the pajama top was ripped from the v-neck to the midline and from the armpit on the left sleeve right through to the hem, and then from the left armpit down to but not through the left sleeve?
A No.
Q Okay. Is it possible, in your opinion, sir, that if a pajama top torn in a fashion such as this one is was being worn at the time an assault was being conducted with that club, that some portions of the torso or the arms would be bare?
A Yes.
Q And could, in your opinion, those bare portions of the body have absorbed any of the aerosol-type spray?
A Yes.
Q Okay. Now, Dr. Thornton, with respect to the tearing of the fabric -- and I believe you testified to a number of experiments in which you tore first bolt cloth; is that correct?
A Yes.
Q And when you tore the bolt cloth, I believe you testified that the number of yarns that fell out from gravity was minimal?
A Yes.
Q I think you used the numbers "two" or "three"?
A No more than two.
Q Okay. But some do fall out from gravity?
A Yes.
Q Okay. Did you conduct any --
A (Interposing) Not in every experiment. That "two" would represent a maxiumum. There are some tears that resulted in no loss of any yarns. Again, it is probably a question of force. If you are careful and tear the cloth slowly, you don't expect a loss of the yarns.
Q Okay. Now, in conducting your experiment, I believe you demonstrated that you took bolt cloth and you tore it?
A Yes.
Q What did you do with it after you tore it -- the cloth?
A I retained it.
Q Well, I mean -- I am sure you did. But in terms of any movement of that cloth after it was torn?
A No; no. I did not attempt to pull out additional yarns.
Q No; that isn't my question, sir. With respect to the cloth itself, is it accurate to say that after you tore it -- I assume you waited for any yarns to drop out?
A Yes.
Q And then did you take the cloth and put it aside?
A Yes.
Q Did you conduct any experiments using a pajama top in which it was torn from the yoke at the v-neck down to the right --
A (Interposing) I am sorry?
Q Well, let me demonstrate it on myself. If my jacket were the v-neck of the pajama top, did you conduct any experiments in which, you know, one of your assailants wore a pajama top, was grabbed in the yoke and pulled down and ripped?
A Well, I am a little confused with the terminology. To me, the yoke refers to the area on the back of the shoulders.
Q I mean the v-neck; I am sorry.
A I do understand your question. And no, I did not tear the garment worn by another person.
Q Is it accurate to say that you conducted no experiments with a garment that was torn and then continued in violent motion? Do you understand my question?
A Yes, I think that is fair.
Q The question?
A Well, no. I think it is fair to say -- I sort of lost track of your question.
Q Okay. Did you conduct --
A (Interposing) I did not continue with violent motion following this tearing of the garment.
Q Okay. In your opinion, sir, would violent motion -- excuse me.
A To qualify that, that is with respect to the bolt cloth experiment. With respect to the seam experiments, I did continue with some other --
Q Okay. Now, let me ask you: with respect to the seam experiments, I understood your testimony that you sewed a seam; is that correct?
A Yes.
Q You took two pieces of the bolt cloth and made a seam?
A Yes.
Q Okay. What type of stitching did you use?
A Just a conventional stitching. I asked my wife's assistance in setting up the sewing machine. And I did it. It was whatever stitching was on the machine.
Q Do you know, sir, whether it was stitched in the same fashion as the seams of this pajama top?
A No. I don't recall.
Q All right. Now, did you conduct any experiments with pajama tops in which the seam area was torn?
A Yes.
Q Okay. Do I recall your testimony on direct correctly that when a seam is torn, scores of seam threads drop out?
A May. They may, yes.
Q And that is from gravity alone?
A Oh, no. They fall on the paper as a result of gravity. But they are dislodged by the result of the force in the rip.
Q Well, my question: with the seams the same as with regard to the bolt cloth, did you rip the seam, wait for the threads to drop out, and then place the garment aside?
A Yes.
Q Okay. Is it accurate to say that you conducted no experiments with a seam which continued in violent motion after it was torn?
A That is not quite right.
Q Okay.
A In conducting that series, I ripped the seam with various amounts of energy. Some rips were very slow, resulting in virtually no loss of sewing threads. In others, the ripping was violent, resulting in loss of considerable numbers of sewing threads.
In a number of the instances in which there were many sewing threads still affixed to the cloth -- they were loosely hanging in the holes in which they originated -- then I would conduct other experiments -- nothing particularly profound. I would reach up and see how easily they would dislodge.
In some instances, I would run my finger down the cloth and found that that was a fairly effective way of pulling the fibers out of the holes.
Q Okay, now, with respect -- if I understand your testimony, the more violent the ripping motion, the more apt the seam threads are to drop out of their own accord.
A I consider that really to be an extension of common sense. There is nothing.
Q I have no quarrel with that. And then, do I understand that some seam threads would remain in the holes and would drop out easily or could be pulled out easily?
A Yes.
Q Did you conduct any experiments in which someone wore a pajama top or the bolt cloth after it had been ripped and went through any motions?
A No.
Q In your opinion, sir, would it be possible to violently rip a seam and have no threads to fall out?
A No.
Q Now, let me ask you, with respect to Government Exhibit 101, and I believe you testified in direct examination with respect to the midline and by that I mean the area from the v-neck -- what I earlier mistakenly referred to as the yoke -- down to the front.
Now, let me ask you, with respect to what I believe would be termed the left inseam, and let me describe with reference to my own jacket -- the seam which runs from the armpit down to the hem.
A Yes.
Q Did you examine that portion of this garment?
A Yes; I did.
Q And what -- is there a seam at that area?
A Yes.
Q And was it ripped?
A Yes.
Q And would it be correct to assume that, in your opinion, if the left inseam of this pajama top was ripped, the seam threads would fall out?
A Yes.
Q Now, I believe also you were asked about the benzidine test.
A Yes.
Q And whether it was a specific for blood. Would you explain, sir, what you mean by a "specific for blood"?
A A specific test for blood would mean that it would react with blood and no other material.
Q Okay, and did I understand you to say on direct that the benzidine test is most noted for its sensitivity as opposed to its specificity?
A I think all of the presumptive chemical tests for blood would fall into that category. Yes; they are not known for their specificity. The benzidine is probably more specific than several others, but for the sensitivity they will detect a small amount of blood.
Q Okay, now, would it be accurate to say that the benzidine test is more apt to react although the reaction may not be specific for blood? Do you understand my question?
A No.
Q In other words, let's say you have a stain, you spray benzidine on it, and you get a reaction.
A Spray benzidine on it?
Q However you do it. I thought it was sprayed on but, if I am in error, please correct me. Do you swab it on?
A No; I suppose that some might do it that way. I have never heard of it being used that way, with one exception, which really is not relevant here, but ordinarily the blood is removed and the test run in a porcelain spot tile.
Q But is it ever used in the field -- benzidine?
A Oh, yes.
Q Okay, in your opinion, would it be more apt to react -- in other words, would you be more apt to get a reaction from the benzidine test than not get a reaction?
A If there is blood?
Q Yes.
A Yes.
Q Okay, you might get a reaction, if I understand your testimony with respect to specificity -- it might not turn out to be blood; is that correct?
A If it is really blood and your tests indicate that it isn't?
A No; my question is: given -- if you get a reaction. If I understand your testimony, you are saying that that doesn't prove it is blood.
A That's right.
Q Okay, but the test is very sensitive?
A Yes.
Q And it will react to minute parts of blood and to other things; is that correct?
A Yes.
Q Okay, suppose you get no reaction?
A All right.
Q I believe you testified there were certain inhibitors.
A Yes.
Q What would those be?
A There are relatively few. Actually, any strong reducing agent will inhibit the test --
Q (Interposing) Could you give us an example? I'm sorry.
A Well, an example that appears in the literature in connection with the benzidine test of a naturally occurring material is vitamin C. Vitamin C will inhibit the test. There are certainly strong reducing agents that you don't ordinarily expect to find in your household, but there are other materials.
Q Well, let me ask you about household reducing agents. Is orange juice one, for example?
A Yes.
Q So, in other words, if something had been swabbed with orange juice -- if orange juice had been spilled on something and then you put benzidine on it, what reaction, if any, would you get?
A Well, there are other factors involved. We talked about concentration or -- but it would tend to inhibit the test.
Q So that you might get a false negative?
A That's right.
Q Okay, in your opinion, sir, would -- let me ask you: do you have any reason to believe that orange juice had been washed from the walls in the living room of the MacDonald murders?
A No, sir.
Q Okay, if I were to tell you that there is testimony in this case that areas were tested with benzidine and no reaction occurred, in your opinion, sir, what would that indicate?
A It would indicate that the material that was tested was either not blood or that the amount of blood was insufficient for a reaction or that the test had been conducted improperly.
Q Okay, if the stain was visible to the naked eye -- the stains were visible to the naked eye, in your opinion, sir, would the stain be of sufficient quantity that if it were blood, it would give a positive reaction?
A Yes.
MR. MURTAGH: Your Honor, that concludes cross-examination. I believe there is one other matter that we need to approach the Bench on.
MR. SEGAL: Yes.
B E N C H C O N F E R E N C E
THE COURT: What do you have now?
MR. SEGAL: Three brief matters. One, I have some redirect of Dr. Thornton. I must apologize: I omitted yesterday two matters which I would like to do this -- do my cross by redirect.
The two matters that I omitted which would totally not at all touch these subjects were the fact that Dr. Thornton recovered a flower pot, which we think of as the flower pot from the house, and has tested it and reconstructed it, and it has been photographed and I want to identify that, and show what he has found on that.
Secondly, I totally neglected -- and it is an error on my part -- to ask a singular matter about the, when I was going through the sheet about the various prints he said he agreed, for instance, with Mr. Stombaugh -- question that there was a cuff outline that he thought was consistent with Dr. MacDonald -- there was a question I needed to ask him about that matter.
It is very brief; namely, that what extent of pressure was required. Was it pushing, lying, heavy, light, dark -- that's the question.
So I would ask after I finish my redirect and if Mr. Murtagh has any recross, to be allowed to pursue those two areas.
It should not be lengthy. I can't -- but I consider it important to my case.
THE COURT: What is the problem?
MR. MURTAGH: Your Honor, first of all, I would like to resolve the matter of the moist blood.
MR. SEGAL: Let's finish with my request.
THE COURT: You just want to ask him some things you neglected to do yesterday?
MR. SEGAL: Two of them -- I have named them what they are, yes.
MR. MURTAGH: Your Honor, if I had gone into those areas on cross-examination --
THE COURT: (Interposing) This is something else. He says that he is -- look here, he has been five weeks and two days and that he just got -- he just overlooked it. Now, you want me to hold him to that? What if you come tomorrow and you overlook something?
MR. MURTAGH: Well, Your Honor, if we come up and overlook something I think we are out of luck. We haven't done it.
THE COURT: Well, I am going to invoke the rule of quandoque bonus Homerus dormitat.
MR. MURTAGH: Okay.
MR. SEGAL: There is another matter of that, and that is the question that I wanted to put to Doctor --
THE COURT: Excuse me, I don't believe Wade Smith got the translation.
MR. SMITH: I'm from way off down in Stanly County and we don't know any of that stuff, Judge. What is that?
THE COURT: It means that even the mighty Homer on occasion will nod.
MR. MURTAGH: Judge, on the matter of the moist blood, I do think that unless Mr. Segal has a specific -- we gave them the transcript last night. We did not get it back. You had my transcript.
MR. SEGAL: We gave it back to you at 5:30 yesterday.
MR. MURTAGH: I did not get it back.
MR. SEGAL: I delivered it to your office at 5:30 -- the clerk is a witness to that.
MR. MURTAGH: I don't believe there is a reference in there. What Shaw was testifying about is he had been testifying on direct about the blood in Kimberly's room -- and that's much earlier in the day.
And I think that to say that his testimony can be construed that if he said blood was tacky at 4:00 o'clock in the morning, that that covers blood that is tacky at somewhere around 1:00 o'clock in the afternoon, is stretching the transcript.
MR. SEGAL: Let me shorten this, if I may. The material that I am looking for did not appear in the section of Mr. Shaw's transcript that Mr. Murtagh lent me last night.
In reviewing our other trial notes we have reason to believe that information appears during my cross of Mr. Ivory when we did the demonstration. This morning we asked Government counsel, Mr. Blackburn, whether he would permit us to examine during this morning Mr. Ivory's testimony in that regard.
He said unless Your Honor would order it, they would not permit me to examine it.
THE COURT: Well, go on and let him have it.
MR. SEGAL: We would like to see Ivory's testimony. Now, in that regard I suspect that we will be done within 15 minutes on these various matters that I want to cover with Dr. Thornton.
He is not leaving. I will ask, after we have found the appropriate matter -- if I don't find it I will just abandon the subject matter. If I do find it we will call him back later in the day. We can keep on moving that way, is that all right?
MR. MURTAGH: Your Honor, I would object to that, that, you know, it seems to me Mr. Segal is getting several bites of the apple on direct examination with respect to Dr. Thornton.
You know, he said yesterday that it was Shaw's testimony. Apparently it isn't Shaw's testimony. If he had said Ivory, we would have given him Ivory. But at any rate I think it should be resolved. He should go into the matters on direct that he is permitted to do.
I think he should find that area in the transcript and either --
THE COURT: (Interposing) Well, I am going to give him one more bite at the cherry and I'm going to renew an observation that I made earlier in the day: with this kind of testimony -- forensic, scientific, or otherwise -- it is my considered judgment that neither one of you is making any hay whatever with this jury.
Now, go on from there.
(Bench conference terminated.)
MR. SEGAL: I have some questions on redirect, Your Honor.
THE COURT: Go ahead.
R E D I R E C T E X A M I N A T I O N 10:36 a.m.
BY MR. SEGAL:
Q Dr. Thornton, in regard to the procedure that Mr. Murtagh and Mr. Blackburn did yesterday afternoon with the pajama top here, did that procedure in any scientific way attest or relate to the testimony of Mr. Stombaugh that the holes in the pajama top were made while the pajama -- the puncture holes in the pajama top were made while the pajama top was stationary?
A I don't believe so.
Q Now, again, in regard to the Murtagh-Blackburn procedure yesterday afternoon, did that procedure constitute, in your opinion, a scientifically valid test or demonstration of whether the puncture holes in the blue pajama top occurred in a fashion described by Dr. MacDonald in various statements that you have been shown or read in this case?
A No. May I explain my answer?
Q Yes, you certainly may.
A Well, presumably this is an experiment to determine the feasibility of something occurring. If it is, it should be conducted in accordance with scientific principles, scientific methods.
There is a seductive appeal to this type of experimentation --
Q (Interposing) What do you mean when you say "seductive appeal"?
MR. ANDERSON: OBJECTION.
THE COURT: I will SUSTAIN that. I think this is more in the nature of editorializing.
BY MR. SEGAL:
Q Without reference to that last phrase, go on with your comments, if you would, about the Brian Murtagh-Blackburn procudure?
THE COURT: I thought the witness answered this question yesterday. He said that that experiment was scientifically silly; isn't that what you said?
THE WITNESS: Yes, Your Honor. I sort of regret having phrased it in that manner.
THE COURT: All right; well, explain that, then.
THE WITNESS: Well, it didn't adequately convey what -- how I feel about that type of experiment. Ultimately science has to be judged, has to be measured, in terms of process, not in terms of product.
If the processes have validity, if there is quality in the process, then there will be quality to the product. In an experiment -- an ad hoc experiment of this sort, there are so many uncontrolled variables -- proper procedure in experimentation -- scientific experimentation -- is to maintain constant as many variables as possible.
Hopefully all but one -- and then vary that particular variable, and then hold that variable constant and move on to another.
In the type of experimentation that was conducted here yesterday, there are so many variables about which we must speculate. And in fact the -- there is some confusion in my mind as to the very goal or what is intended to achieve by the experiment.
If the experiment -- on the one hand we have an attempt to kill a pajama top by stabbing into it with an ice pick. I see a distinction between that and an attempt to kill a human being wearing a pair of pajama tops in some -- or having the pajama tops pulled over his head or in some undefined and vague manner.
BY MR. SEGAL:
Q Now, in regard to certain matters that Mr. Murtagh has asked you on cross-examination and in certain areas you have given some answers. I want to now ask you a series of questions in a similar format. And they go as follows: first of all, as a result of any of the answers that you have given Mr. Murtagh in regard to Mr. Stombaugh's testimony that the puncture holes in the blue pajama top were made while it was stationary.
As a result of any answer you have given Mr. Murtagh, have you changed your opinion in that regard?
A No.
Q What is your opinion then, sir?
A In my opinion, the appearance of circular holes in a fabric of this sort does not necessarily suggest that the garment was stationary at the time that the holes were placed in it.
Q Again, Dr. Thornton, as a reasult of any of the answers that you gave Mr. Murtagh, have you changed your opinion that if the blue pajama top was worn when Mrs. MacDonald was struck with an object -- like the club that we see in this case -- have you changed your opinion that there would be evidence of an aerosol blood pattern on the pajama top?
A No.
Q What is your opinion in that regard?
A My opinion is that there would have been a dispersion of very fine droplets of blood on the pajama tops.
Q As a result of any of the answers that you gave Mr. Murtagh in regard to the question of whether the number of fibers -- the amount of fibers -- that would fall from the fabric of which the blue pajama top was made; if it was ripped in an area which was not a seam -- as a result of the answers you gave to any of those questions, have you changed your opinion in that regard?
A No.
Q What is your opinion in regard to the number of fibers, or the amount of fibers, that would fall from a tear of an unseamed area?
A That they would be very few in number, perhaps zero. In any event, a very small number.
Q In regard to the answers that you gave Mr. Murtagh as to the amount of fibers or threads that would fall if a tear was made in a fabric along the lines of the blue pajama top, when the tear was made in a seamed area -- now, have you in any way changed your opinion?
A No.
Q What is your opinion in regard to that matter?
A That the number of threads lost is quite variable and appears to be a function of the force applied to the tear and to the effort applied to the fabric subsequent to the tear in removing the threads from their holes.
MR. SEGAL: That is all I have on redirect. With Your Honor's permission, there are one or two matters I wanted to cover on direct, unless Mr. Murtagh has any further recross-examination of what we have done up until now.
MR. MURTAGH: I have no further questions, Your Honor.
THE COURT: All right; call your next witness.
MR. SEGAL: I must start with a preface --
THE COURT: (Interposing) Are you ready to proceed?
MR. SEGAL: Yes, Your Honor.
THE COURT: Well, go ahead.
MR. SEGAL: I just want to say, I apologize for not having covered this yesterday in the direct examination, but I think it will follow very briefly.
THE COURT: All right.
F U R T H E R D I R E C T E X A M I N A T I O N 10:42 a.m.
BY MR. SEGAL:
Q Yesterday I asked you about an area of the blue bedspread [sic] here which Mr. Stombaugh had marked as to various areas, and one of these areas, you had indicated that you agreed with him as to the fact that it appeared to contain what could be an impression of the cuff of the blue pajama top in this case?
A Actually, there were two areas.
Q And what were those two areas?
A "A" and "B."
Q And what was your conclusion as to what could have made those impressions?
A I believe Areas "A" and "B" are consistent as having been made by the blue pajama top.
Q Did you make any effort to ascertain how much pressure was being applied to the sheet at the time an item such as the blue pajama top made that impression?
A Yes.
Q Will you tell us what you did and what your conclusions were?
A It is my opinion that the impressions could have been made by a rather gentle contact between the pajama top and the sheet. There is nothing that would suggest to me that there was a great deal of force involved, or that there was any significant weight between -- any significant weight applied to the pajama top with the arms of the pajama top in between. In other words, a rather casual contact with the sheet could have resulted in an impression of that nature.
Q When you say "significant weight," I am going to ask you if you could give us any kind of example of how that would have happened, so that perhaps we can better understand your meaning of that term?
A I think a force of less than two pounds could result in impressions of that sort, particularly the impression "B," I believe, if I may refer to my notes?
Q Yes, certainly; would you do that, please?
A Yes; "B" might have resulted from a force of just a few ounces, something consistent with brushing --
MR. MURTAGH: (Interposing) I'm sorry?
THE WITNESS: Something consistent with even brushing the sheet aside, something of that nature.
BY MR. SEGAL:
Q I have no further questions on that subject. I am going to ask you now to address a different subject with me, Dr. Thornton.
Did you have occasion recently to go to 544 Castle Drive, the MacDonald house?
A Yes; I did.
Q When did you do that?
A Last Saturday.
Q Did you have occasion to make an examination of the living room of the MacDonald house?
A Yes.
Q And did you find there a plastic flower pot -- white plastic flower pot?
A Yes.
Q Did you have occasion to record that finding?
A Yes; I did.
Q May I see that, please?
MR. SEGAL: May we have a photograph marked as a Defendant's Exhibit, please? That would be number 67, Your Honor.
(Defendant Exhibit 67 was marked for identification.)
MR. MURTAGH: Your Honor, could we have an offer of proof on this?
MR. SEGAL: Yes; do you want it here or at sidebar?
MR. MURTAGH: At sidebar.
B E N C H C O N F E R E N C E
MR. SEGAL: We intend to show that the crime scene when examined by Dr. Thornton revealed that in fact this plastic flower pot that was on the coffee table is not, in fact, the flower pot that was there at the time of the crime; that the pieces that appear in the background, in fact, are reasonably concluded to be the flower pot; and that he will explain what condition they are in, and will show how he arrived at that conclusion -- and that, in fact, we offer that as further evidence of the destruction of the evidence at the crime scene now and subsequently.
THE COURT: I don't know if there is an objection, but I assume if there is one, it would be based on the fact that it is cumulative, since you have shown all that yesterday by Osterburg.
MR. SEGAL: On this subject, we were not permitted to do this with Mr. Osterburg, Your Honor, so we dropped the matter. We tried to question him and the Government objected to that. It will not be lengthy, but it seems to me the Government has represented consistently --
THE COURT: (Interposing) Let's go. Let him ask it.
(Bench conference terminated.)
BY MR. SEGAL:
Q Dr. Thornton, I want to show you a photograph that has been marked for identification as D-67, and ask you if you would tell us what it depicts, and then please exhibit it to the jury so they may see it also?
A This is a photograph I took at the scene at 544 Castle Drive on the 11th, last Saturday. It depicts a portion of a slat table in the living room. On top of the slat table is a white plastic flower pot. On the background on the floor are the shards of another broken white plastic flower pot.
Q Did you examine both the plastic flower pot that appears on the coffee table and the pieces of the flower pot that you say are on the floor behind it?
A Yes.
Q And what did you do with the pieces of the flower pot on the floor?
A I collected them. They were 11 in number. I reconstructed the broken pieces by simply putting them back together in the manner in which they were before they were fractured and taped them on the inside. I rebuilt the plastic flower pot.
Q Did you then make any comparisons between the white plastic flower pot that is sitting on the coffee table in that picture and the plastic flower pot that you put together and photos of the crime scene taken on February 17, 1970?
A Yes; I did.
Q And what, if any, conclusion did you arrive at as to which of those two flower pots was on the floor as depicted in the various crime scene photographs introduced by the Government?
A The flower pot that is on top of the table is definitely not the flower pot that appears in the crime scene photographs. The flower pot that was broken -- a comparison of the reconstructed flower pot with the scene photographs reveals considerable agreement with respect to the distribution of the scum of earth inside the flower pot.
On that basis, I think that it is very likely that -- I would say with a little more conviction than that -- I think it is exceedingly likely that the broken flower pot is, in fact, the flower pot that appears in the original crime scene photographs.
That is also the flower pot that has been processed previously for latent fingerprints.
Q You say the broken flower pot -- the one you reconstructed -- is the one that gives evidence or shows evidence of having been processed for fingerprints?
A Yes.
Q Prior to this, to what extent -- how much of that broken flower pot had been processed for fingerprints?
A The entire surface area -- the outside surface area -- not the inside -- but the entire circumference and base of the flower pot.
Q Did you find any evidence that the white plastic flower pot -- the one that is now sitting on the coffee table and appears in the foreground of your photo -- any evidence that it had been processed in any place for fingerprints?
A No; there is no latent fingerprint powder on it at all. It would be my opinion that there had never been an attempt to process this for latent prints. There is no indication of print powder having been washed off either.
Q Now, based upon your own experience in criminal investigation, as a crime laboratory director and having processed crime scenes, do you have an opinion that the finding of what you have concluded was that the flower pot that was in the MacDonald living room on February 17, finding it in the condition that you did and the place that you did, is that consistent with any good police practice that you are aware of?
MR. MURTAGH: OBJECTION.
THE COURT: SUSTAINED.
BY MR. SEGAL:
Q Finally, in a different matter then --
MR. SEGAL: If Your Honor pleases, before I proceed with the last matter that we have, may we have this photograph published to the jury?
THE COURT: Yes.
(Exhibit passed among the jury.)
BY MR. SEGAL:
Q Finally, again, this was a matter that I touched on briefly on direct and neglected to ask you a question about this matter. I think the last matter that I asked you about on direct examination yesterday was whether or not -- and let me find the question --
MR. MURTAGH: Your Honor, are we into some new matters?
MR. SEGAL: Yes.
THE COURT: Oh, yes. He said he forgot to do this yesterday.
MR. SEGAL: And I apologize to both the Government and the Court.
THE COURT: And his apology has been accepted and we told him to go right ahead.
MR. MURTAGH: Yes, sir.
BY MR. SEGAL:
Q I asked you whether you had read testimony of Shirley Green in regard to the reconstruction experiment that she said she did in terms of putting 48 probes into holes in the -- rather, taking 48 holes in the pajama top and making them fit into 21 holes.
A Yes.
Q And I asked you at that time the question of whether you had an opinion as to whether or not she did in fact do what she said she did, and you said you had an opinion in that regard.
A Yes.
Q And what was that opinion?
A I consider her reconstruction to be impossible. I consider it to be conceptually unsound and contrived.
MR. MURTAGH: Your Honor, I would OBJECT.
THE COURT: Yes, I will ask the jury not to consider the statement by this witness that what some other witness did was contrived.
MR. SEGAL: All right, Your Honor.
THE COURT: Erase that from your minds, please. We will consider that to have been an improper comment.
BY MR. SEGAL:
Q What I neglected to do and I now ask you: would you please explain to us what the basis of that conclusion was?
MR. MURTAGH: OBJECTION, Your Honor.
THE COURT: SUSTAINED.
MR. SEGAL: May we see Your Honor?
THE COURT: I understood that you wanted to go into some new matters. This is a matter you covered yesterday.
MR. SEGAL: I had covered the impressions and had neglected to ask a question about the cuff impression. I had neglected to ask Dr. Thornton the basis for the opinion.
THE COURT: All right,let him say what his basis was.
BY MR. SEGAL:
Q Would you tell us: what is the basis for your conclusion about Ms. Green's experiment?
A Yes; it would help me if I could use some of the Government's exhibits.
Q Do you have them there?
A I think they are close at hand; yes.
Q All right.
A May I proceed?
Q Yes, please, Dr. Thornton, if you would tell us the basis of your conclusion.
A I used two different documents, really, to make this determination. The first consists of a laboratory work sheet of Mr. Stombaugh which appears to be a 1971 document, and I used Government Exhibit 1076(a) which is purported to be a worksheet of Shirley Green consisting of -- which indicates a direction of travel of the ice pick thrusts in the blue pajama top.
In examining these documents, I find that Mrs. Green has designated hole number 9 as originating from the outside of the garment extending to the inside. This is outside to inside. Mr. Stombaugh's original notes designate this thrust from an examination of the direction in which the fibers are pointing as an inside to the outside.
That is a discrepancy and, on the basis of that, I would conclude that thrust 20, which appears in this reconstruction, is in error. In my mind, that contravenes the entire reconstruction --
Q (Interposing) Did I understand you to say "in error"? Again, putting it in lay terms, you mean Mr. Stombaugh says the hole was what -- an exit hole -- and Ms. Green arranged it in a way that it became an entry hole?
A That's right. With respect to hole number 12 originally designated by Mr. Stombaugh in 1971, he has designated this as from the outside in. Ms. Green's reconstruction has it as inside-out. Again, that is a second discrepancy, and on the basis of that I would eliminate this as being a possible reconstruction.
Q Putting that again in lay terms, Mr. Stombaugh had it as what -- an exit hole again?
A As an entrance.
Q Entrance hole, and the way Ms. Green did the reconstruction, she did it as a -- ?
A Exit.
Q Is there anything further that you based your opinion on?
A Oh, yes. Hole 16 -- Mr. Stombaugh originally designated this as outside to inside -- an entrance hole. This is all relative, of course, to the normal outside of the garment. Mrs. Green's reconstruction designates this hole as an inside to outside, and that is the third discrepancy -- again eliminating this reconstruction.
On thrust or hole 22, originally designated by Mr. Stombaugh in 1971 from an examination of the garment at that time as outside in --
Q (Interposing) Meaning it was an entrance hole?
A Yes. Ms. Green's reconstruction assumes that this is an inside-out or an exit hole. The significance of this is that thrust 22 -- not 22 -- I beg your pardon -- one.
Q Thrust number one?
A Thrust number one is in error.
MR. MURTAGH: I OBJECT to that, Your Honor.
THE COURT: Yes. I will SUSTAIN the objection. I will let him tell what he found.
BY MR. SEGAL:
Q Let's put the answer -- the question to you this way: having found that Ms. Green has done it the way she had done it, does that appear to be using the holes in the same fashion that Mr. Stombaugh identified them; that is, did she make the exit holes exit holes in her construction, or did she make the entrance holes the entrance holes in her construction on that particular probe?
A I don't understand the question.
Q Well, what I am trying to ascertain is what is the basis of concluding that she -- what is the error that she made in your examination of the probe?
A Well, it is inconsistent. The hole either is an inside-out or an outside-in. Mr. Stombaugh originally designates it as outside-in. She -- in deriving this reconstruction -- she denies that it is an outside-in, and --
MR. MURTAGH: We OBJECT to that, Your Honor.
MR. SEGAL: It is a technical term, Your Honor.
MR. MURTAGH: There is nothing technical about it at all. I think --
THE COURT: I will SUSTAIN the objection. I will let him rephrase his answer.
BY MR. SEGAL:
Q When you say "denies," what do you mean, Dr. Thornton?
A She contravenes the information provided by Mr. Stombaugh.
Q Would you say she did it differently from --
MR. MURTAGH: (Interposing) We MOVE TO STRIKE that, Your Honor.
MR. SEGAL: I had not asked the question.
THE COURT: OVERRULED.
BY MR. SEGAL:
Q Can we say in lay person's terms that she did it differently than the way he described the holes?
A Yes.
Q All right. Hereafter, let's use my terms and then see if that will work better. What, if anything else, did you base your opinion on?
A Hole 36 was originally designated by Mr. Stombaugh as inside-out or an exit hole. In Ms. Green's reconstruction, it is designated as outside-in or an entrance hole. Again, just with respect to that one particular discrepancy, I think that it negates the validity of this reconstruction.
MR. MURTAGH: MOVE TO STRIKE that, Your Honor.
THE COURT: OVERRULED. He has testified that the thing was impossible. So, that is just in furtherance of that same answer.
Go ahead.
Isn't that what you say is your opinion?
THE WITNESS: Yes, Your Honor.
BY MR. SEGAL:
Q Any further basis for your opinion in that regard?
A No. I think that is sufficient. With respect to hole number 48, Mr. Stombaugh hasn't designated that as being one way or the other or whether he cannot determine that. So, I can't properly evaluate that particular hole in the pajama top.
But on the basis of the six foregoing discrepancies, I think that this is impossible.
MR. SEGAL: I have no further questions. You may cross-examine.
F U R T H E R C R O S S - E X A M I N A T I O N 11:05 a.m.
BY MR. MURTAGH:
Q Dr. Thornton, you read Mr. Stombaugh's report of 1971; did you not?
A Yes.
MR. SEGAL: I neglected to mark that, Mr. Murtagh. If I may at this point?
MR. MURTAGH: Mark what?
MR. SEGAL: The report that you are talking about.
May we borrow your copy, Dr. Thornton? We would just have Mr. Stombaugh's report marked as a Defendant Exhibit. That will be D-68.
(Defendant Exhibit No. 68 was marked for identification.)
MR. SEGAL: Identified for the record as a 13-page report from the Federal Bureau of Investigation. Are we talking about the same thing?
MR. MURTAGH: No; we are not.
MR. SEGAL: Under the date of --
MR. MURTAGH: (Interposing) We are not talking about the same report, Your Honor.
MR. SEGAL: The document would be identified by the File Number at the top, 70-51728-66. In the upper left-hand corner, it says, "Recorded 6/10/71." That is D-68.
BY MR. MURTAGH:
Q Dr. Thornton, I am referring to the report of Mr. Stombaugh furnished to the Defense dated July 2nd, 1971. Directing your attention to page three, I would ask you whether you agree or disagree with this statement of Mr. Stombaugh: "...The apparent frequent handling of specimens Q7, Q9 -- "
A (Interposing) I am sorry. I have another document in front of me.
Q Well, let me show you this one.
Your Honor, I would represent that this is the report, a portion of which was published to the jury by the Defendant by means of a blow-up.
Anyway, let me hand you this. Directing your attention to the second and third paragraph, I would as you to read those, please.
THE COURT: Let's let him do this, if he has got to read a little, while we take our morning recess. We will come back at 11:30. Then he will be ready to answer your questions, I hope.
Take a recess until 11:30. Don't talk about the case.
(The proceeding was recessed at 11:07 a.m., to reconvene at 11:30 a.m., this same day.)
F U R T H E R P R O C E E D I N G S 11:30 a.m.
(The following proceedings were held in the presence of the jury and alternates.)
THE COURT: All right, now proceed.
(Whereupon, DR. JOHN I. THORNTON, the witness on the stand at the time of recess, resumed the stand and testified further as follows:)
F U R T H E R C R O S S - E X A M I N A T I O N (resumed)
BY MR. MURTAGH:
Q Dr. Thornton, let me back up a bit and ask, after you testified yesterday, and I believe your last testimony -- the last series of questions -- pertained to the Shirley Green experiment, is that correct?
A Yes.
Q Now, between that time and the time you took the stand this morning, did you discuss your testimony with respect to any experiment or any conclusion of yours in regard to Shirley Green with any person?
A I discussed it with my wife on the telephone and there was a reporter that Mr. Segal said I could talk to. I did not talk to Mr. Segal about it or any of the other attorneys.
Q Did you talk to any of Mr. Segal's aides?
A No.
Q Now, with respect to your testimony a few minutes ago, I was about to ask you with respect to a report from Paul Stombaugh in 1971. Do you recall that?
A Yes.
Q Let me read this paragraph to you and see if you agree or disagree.
"The apparent frequent handling of specimens Q7, Q9, and Q12" -- for the sake of my question, Q12, I believe, is Mr. Stombaugh's designation of the pajama top -- "has caught the yarn surrounding the holes to return from both parts to their original positions, thus preventing a definite conclusion to be made as to whether each hole is an 'entry or exit hole.'"
Would you agree with that as a scientist?
A You are asking me if I agree?
Q Do you agree that is his statement?
A Yes.
Q And it goes on in the next paragraph:
"However, based upon microscopic examination of the garments in their present condition, six holes in specimen Q12 had the general appearance of being entry holes, and five holes had the general appearance of being exit holes."
Do you agree that that is his statement?
A Yes.
Q And for the purpose of this report do you agree that Mr. Stombaugh was assuming that the pajama top was being worn in the normal fashion?
A I would make that assumption. His notes have them designated as inside-out or outside-in or question mark.
Q Yes, now, what I'm saying is, with regard to the ones which he designated as exit holes, is he or is he not talking about a hole which goes from the inside of the garment out?
A Yes, that is my interpretation.
Q So the exit or entry hole would be prefaced upon the garment being worn in the normal fashion?
A Yes, this is consistent with, I think, everyone's terminology -- Ms. Green's and my own.
Q Okay, now if the garment were turned inside out, would not the exit holes become entry holes and entry holes become exit holes?
A No. Not under that terminology, because the inside and the outside of the fabric can be determined, and if there's any internal consistency between 1, 2, 3, 4, and 5, that would not apply.
Q Well, my question is, does it not -- tell me which way the fibers point to the extent that you can determine that. Doesn't that depend on what position the cloth was -- whether it was inside-out or right side out?
A It has to be oriented in that manner, yes.
Q And would it be accurate to say that with respect to Mr. Stombaugh's report, he reached no definite conclusion with respect to exit or entry holes?
A That is not my interpretation. I understand his report to say that for the most part he could not determine the direction, but he indicates, I believe, six of one and five of another -- which, by the way, does not correspond to his notes. He has another number in his notes.
Q Okay, well, with respect to the language that he used, do you agree that he said that the exit and entry holes had the general appearance of being entry holes?
A Yes.
Q Now, this was 1971, right?
A Yes.
Q Would it be accurate to assume that over passage of some years, say to 1974, that the yarns would continue to return to their normal positions?
A Oh, yes; I don't think that you could determine much of anything at the present time, or even perhaps in 1975. I would accept the 1971 results as being more valid than a later time.
Q Now, with respect to your testimony with regard to Ms. Green, let me ask you, did Mr. Stombaugh to your knowledge testify in this court with respect to any exit or entry holes?
A Not to my knowledge.
Q And let me ask you with respect to the reconstruction that Ms. Green did: would you agree that Mr. Stombaugh had testified that it was Ms. Green who did the actual insertion of probes?
A Yes, that is my understanding.
Q Now, Ms. Green had found the pajama top inside-out, do you agree?
A Well, I don't understand the significance of that. We have a terminology here with which we must be consistent. The inside of the fabric is the inside in the normal position of wear, of wearing the garment. The outside is the outside, and we have to adopt that and be consistent throughout the experimentation.
Q I don't have any problem or quarrel with that. What I am asking is, did Ms. Green in fact turn the pajama top right sleeve inside out?
A Yes, and folded in some manner.
Q Now, are you saying that Ms. Green did not in fact insert 21 probes through the holes which she has denominated here?
A Oh, she did indeed.
Q Well, then are you saying that Ms. Green did, in fact, align 21 probes through 48 holes?
A Yes.
Q Okay, what you are saying is that she did not take Mr. Stombaugh's previous determination as to which had the general appearance of an exit hole and which had the general appearance of an entry hole?
A I think either she ignored it or perverted the results.
MR. MURTAGH: Your Honor, I would MOVE TO STRIKE that answer as being not responsive.
THE COURT: I will ask the jury not to consider that.
BY MR. MURTAGH:
Q My question is: are you able to tell us that this picture does not, in fact, represent what it purports to be -- that probe 19 goes through holes 4, 5, and 6, and so on. Are you in a position to tell us that?
A Yes, absolutely, because of the discrepancies on thrusts 9 -- not thrust but hole -- 9, 12, 16, 22, 35, and 36.
Q Well, you are saying that -- we are talking apples and oranges then. Ms. Green put the numbers on here herself I believe she testified; and what you are telling me is that Stombaugh's previous determination of which had a general appearance of an exit and which had a general appearance of an entrance hole was not followed?
A That is right.
Q I don't have any quarrel with that. What I am asking is, do these probes in fact go through the holes which she says they did?
A Oh, yes.
Q Well, I misunderstood you. I thought previously you were testifying that this picture was not what it purported to be?
A Well, maybe we are talking apples and oranges, because I don't think it is what it purports to be, and that is a valid reconstruction of the pajama top, taking all the evidence into consideration.
My understanding of -- or my assumption at this point of what has happened here is that Ms. Green set out to collapse 48 holes into 21, and did so regardless of the evidence that existed in 1971, which I consider to be valid, in view of the fact that the uncertainty of 34 of the holes is in fact reflected in Mr. Stombaugh's notes.
Q What you are telling me is that Ms. Green did an independent reconstruction of the holes with the probes, would you agree with that?
A And I believe invalid.
Q Now, are you telling us in fact that Ms. Green's chart is incorrect?
A Well, yes.
Q In what regard?
A Well, going back again --
Q (Interposing) Are you going back to Stombaugh?
A Absolutely.
Q No; I am talking about what Green said she did and what she testified to doing.
A I don't understand the significance of it.
Q I will explain it to you. My question is, did Ms. Green, in fact, take 21 probes and put them through the holes on that chart, as she has indicated she did?
A Yes.
Q Well, then, she did get the grouping that she testified to?
A Yes; I consider that invalid, but she did get a grouping.
Q Now, in other words, you are not in any position to tell us that you can't put 21 probes through those holes?
THE COURT: Mr. Murtagh, I think this witness has said that about four or five times. Ask him something else.
MR. MURTAGH: Your Honor, in that regard, I would MOVE TO STRIKE that previous answer that Dr. Thornton made --
THE COURT: (Interposing) I think that answer can just be simply construed that he doesn't agree that what she did was correct. And he has said that two or three times.
BY MR. MURTAGH:
Q Dr. Thornton, with respect to this pajama top and stain area "A" and "B": did you examine the crime scene photographs?
A Yes.
Q Based upon that examination of the crime scene photographs, are you in any position to tell us, are the stain areas "A" and "B" on this sheet on the inside or the outside of the sheet?
A No.
Q Could they have been on the inside, then?
A I have no way of telling. I have examined the photographs very carefully. The resolution and lack of clarity of the folds would not permit any conclusion to be drawn, as far as locations of "A" and "B."
Q Okay; now, with regard to your testimony about the amount of force or pressure which Mr. Segal neglected to ask you about yesterday, I believe you said something like two pounds?
A In connection with --
Q (Interposing) "A" and "B."
A Yes; I think "B" could easily have resulted from just a few ounces.
Q What are we talking about in terms of pounds? Are we talking about pounds per square inch or total weight?
A Total weight.
Q Have you weighed this pajama top?
A No.
Q Would you agree or disagree that it does not weigh two pounds?
A Oh, yes; it does not weigh two pounds.
MR. MURTAGH: No further questions.
MR. SEGAL: I have no questions of substance -- just permission to have the witness identify the two items referred to, Your Honor, as an exhibit by the Government.
MR. MURTAGH: Please, please, go ahead.
R E D I R E C T E X A M I N A T I O N 11:43 a.m.
MR. SEGAL: Your Honor, let me exhibit D-69 to Dr. Thornton, and tell us what this is, Dr. Thornton?
THE WITNESS: This is the flower pot that I found on the slat table on the scene at 544 Castle Drive.
BY MR. SEGAL:
Q Would you identify what D-70 is, please?
A This is a reconstruction of the broken pieces of the flower pot that were found to the north and somewhat to the west of the end of the coffee table that is pieced together with tape.
There are two additional fragments that I did not fit in; but I could see that they did fit, but they are so minute that they don't stick in the tape very well.
Q You were the person who did the reconstruction, then?
A Yes.
MR. SEGAL: I have nothing further.
(Government Exhibits 69 and 70 were marked for identification.)
THE COURT: All right; call your next witness.
MR. SEGAL: Dr. Thornton, you may be excused.
(Witness excused.)