---

F U R T H E R  P R O C E E D I N G S  10:00 a.m.

THIS CAUSE came on for further trial before The Honorable Franklin T. Dupree, Jr., United States Chief District Judge, and a jury, on Monday, August 6, 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 hope you had a nice weekend -- a good tour.  And I am particularly interested in whether you read the news about the Act of Congress that has been passed since you have been here.  I thought that was pretty good.  Maybe they will work on one now to pay all mortgage payments, car payments, things like that, and get that passed -- take care of sending children to college.
     What we are talking about is that Congress has passed an Act allowing the jury to have soft drinks and refreshments at Government expense during recesses.  So, congratulations -- got the news this morning.
     Any further evidence for the Government in this case?

MR. BLACKBURN:  Yes, sir, Your Honor.

THE COURT:  All right; call your witness.

MR. MURTAGH:  Your Honor, the Government calls Mr. Dillard Browning.

(Whereupon, DILLARD ORSON BROWNING was called as a witness, duly sworn, and testified as follows:)


D I R E C T  E X A M I N A T I 0 N  10:02 a.m.

BY MR. MURTAGH:
Q  Please state your name, sir?
A  Dillard O. Browning; D-i-l-l-a-r-d O.  B-r-o-w-n-i-n-g.
Q  Mr. Browning, sir, what is your occupation?
A  I am a forensic chemist.
Q  And where are you employed as a forensic chemist?
A  At the Army's Criminal Investigation Laboratory, Fort Gordon, Georgia.
Q  And how long have you been employed by the Army as a forensic chemist?
A  Approximately 14 years.
Q  Okay; do you hold a college degree?
A  Yes: I do.
Q  From what institution?
A  I have a Bachelor of Science Degree with a double major in chemistry and biology from George Peabody College, Nashville, Tennessee.
Q  Okay: is George Peabody College known by some other name today?
A  Well, it is now a part of Vanderbilt University.
Q  Now, when did you receive your degree, Mr. Browning?
A  1951.  
Q  Did the curriculum contain courses in laboratory procedures?
A  Yes; it did.
Q  Involving microscopic analysis?
A  Yes; it did.
Q  Chemical analysis?
A  Yes.
Q  Instrument analysis?
A  Yes.
Q  Did you take formal courses in such subjects as wood or paint or fibers, threads?
A  No formal courses; no.
Q  Did you study organic and inorganic chemistry?
A  Yes: I did.
Q  How about formal training in the use of the microscope?
A  Yes; in college I received that in the biology part of the training.
Q  Did that include the use of optics, filters?
A  Yes; various types.
Q  How about the preparation of specimens for examination?
A  Yes.
Q  Were you trained at all in the use and operation of instruments to measure minute quantities of matter?
A  Yes; I was.
Q  Now, other than at -- I believe it has been called USACIL -- have you ever been employed as a chemist?
A  Yes; I have.
Q  And where was that, sir?
A  I was employed by DuPont at Savannah River Plant for ten years.
Q  Okay; in what capacity.  Please?
A  I was employed originally as a chemist, which I performed those duties for approximately two years.  Then I went into research and spent another four years in research.  Following that, I was assigned to the production end of the operation and the remaining four years I spent in production.
Q  Now, when did you leave DuPont?
A  1962.
Q  Okay; and where were you next employed, sir?
A  I left Dupont and went with the Monsanto Company at Augusta, Georgia.
Q  And how long were you there?
A  About 18 months.
Q  Okay: did there come a time when you applied for a position as a forensic chemist at the Army's Criminal Investigation Laboratory?
A  Yes; in the spring of '64.  I went out and discussed this with the Chief Chemist there and applied for a position.
Q  Okay; did the job require any additional educational credits?
A  Yes; it required a course in biochemistry which I had not received in college.
Q  Did you obtain those credits?
A  Yes; I went to Augusta, Georgia, obtained those credits and re-applied for the position.
Q  I take it subsequently you were hired as a forensic chemist?
A  Yes; I was.
Q  Now, did vou receive any training at USACIL in the forensic aspects of chemistry?
A  Yes; the first year at USACIL was spent under a POI -- Program of Instruction.  This included a full year of training in various techniques and procedures for utilizing small amounts of sample and analyzing same.
Q  Did this program of instruction include training in the analysis of so-called trace evidence?
A  Yes; it did.
Q  Can you tell us, please, what "trace evidence" means in the forensic laboratory?
A  Trace evidence is basically anything, other than drugs or marihuana or serological work -- blood and body fluid.
Q  Does that include paint?
A  Yes; paint, soils, glass, fibers.
Q  About how long did you spent [sic] on paint, if you recall?
A  Paint?  Approximately two months.
Q  Okay; let me ask you about paint.  What would the majority of the cases which the CID lab gets involving paint be about?  What type of case are they, usually?
A  Well, the majority would be the hit and run accidents, transfers of this nature.
Q  Okay; how about fibers or textiles?
A  Yes: I spent approximately six weeks on fibers.
Q  Okay; and how about wood?
A  Wood was covered under "miscellaneous."  I covered several items.  I would say probably six weeks under "miscellaneous."
Q  Okay; now, with respect to wood -- are you a botanist, sir?
A  No; I am not.
Q  Do you hold yourself out as a expert in the identification of various species of wood?
A  I don't quite know what you mean by "expert."  Wood can be identified through various means as to species.
Q  Okay; let me explain my question.  Do you hold yourself out as an expert in examining a questioned sample, and without comparing that to another known sample, determining the species and by that means making an identification?
A  Yes; I do.
Q  Subsequent to completing this program of instruction, what duties were you assigned?
A  I was assigned general duties as a forensic chemist in the laboratory.
Q  Okay; now, drawing your attention to the period of November 1966, to November, 1969, what were your duties?
A  In November of '66, I was offered the Chief Chemistry position at the Army's Criminal Investigation Laboratory in Europe.  It was at Frankfurt, Germany.  I accepted this position, and I spent the following three years at Frankfurt.
Q  Let me just ask you a point of information.  How many laboratories does the Army have?
A  The Army has three laboratories world-wide.  The one at USACIL, or Fort Gordon, serves the continental USA; the one at Frankfurt serves the European Theatre; and the one at Tokyo serves the Far Eastern Theatre.
Q  And after your tour at Frankfurt, as the Chief Chemist, where did you go next?
A  I went back to Fort Gordon, where I remained until January of 1973.  Then in January of '73, I was offered the Chief Chemist position at the Tokyo Lab in the Far East.  I accepted that and remained there until 1976, when I returned to Fort Gordon.
Q  Have you ever been qualified as an expert witness in the fields of paint, fiber or wood identification in any court deriving its authority from the United States?
A  Yes.
Q  Approximately how many times?
A  You combine wood -- what was that again?
Q  Well, I asked you about paint, fibers and wood -- approximately how many times for each, if you can recall?
A  It would be difficult to say, but I would put an estimate of approximately 30.
Q  Now, would most of these be military courts?
A  The majority; yes.
Q  How about United States District Courts, such as this court?
A  Yes; many times.
Q  Where, for example?
A  Nashville, Tennessee; Augusta, Georgia.
Q  How many times have you testified as an expert in all aspects of the fields of forensic chemistry?
A  I have testified in over 400 courts.
Q  Have you ever been called upon to act as a forensic consultant to any government other than the United States Government?
A  Yes; I have.
Q  And what governments would those be, please?
A  While in Europe, I was asked by the West German Government to do some work for that government, which I did.  Following that initial work, I continued to work for the West Gernan Government.  I testified 21 times before West German courts in the capacity of a so-called expert witness in chemistry.
Q  Let me ask you -- with regard to the testimony that you had occasion to perform for the CID Laboratory, has it always been for the prosecution?
A  No.
Q  Is the CID Laboratory available to the Defense?
A  Yes; it is.
Q  Let me ask you with respect to the identification of questioned threads and fibers, I wonder if I could ask you about the meaning of certain terms so that the jargon is clear.  What does the term "fiber" mean to you, sir?
A  "Fiber" generally used at the laboratory is where the strand or the fiber is one particular item such as cottom and not a blend of two or three different type fibers.  We especially refer to a fiber if it is cotton or if it is polyester alone or so forth.
Q  Okay, would it be accurate to say that that refers to a single strand.  In other words, is the term "fiber" synonymous with thread or is there a distinction?
A  Yes; it's synonymous with thread, but it doesn't have to be a single strand.  It can be several strands of the same fiber.
Q  Now, approximately how many categories of fibers are there in the forensic field?
A  Basically there are thousands counting the synthetics.
Q  Well, I was thinking more in terms of broad categorizations.
A  Well, they are divided into two groups -- the natural and the synthetic or man-made fibers.
Q  Okay, you mentioned cotton before.  What type of fiber is that?
A  It's a natural fiber.
Q  Are you familiar with the term "polyester"?
A  Yes; I am.
Q  What is a polyester?
A  It's a synthetic fiber.
Q  Does each type of fiber have distinguishing characteristics which can be analyzed?
A  Yes; it can.
Q  And, based on your employment as a chemist, have you been trained to recognize these distinguishing characteristics?
A  Yes; I have.
Q  Okay, now, what about cotton sewing thread -- does that have distinguishing characteristics?
A  Yes; all cotton thread has varying distinguishing characteristics.
Q  Okay, now, with respect to cotton sewing threads, have these distinguishing characteristics been generally accepted in the forensic scientific community as a basis for comparative examination?
A  Yes; the examination of cotton threads has been accepted as being a basic examination.
Q  Okay, now, are you able, by doing an examination to say that a particular fiber came from a particular fabric or what are you able to do, sir?
A  Well, we cannot say definitely that a particular fiber came from a particular jacket.  We give what we call a "could have" opinion.  When all physical and chemical characteristics are identical, then we say one fiber could have originated from a common source with another fiber.
Q  Is that standard terminology in the laboratory?
A  Yes.
Q  Okay, how about some terms such as "twist" -- are you familiar with that in regard to fibers?
A  Yes; all fibers have a certain twist and in addition to that, plys have twist.  The twist varies either left or right in most fibers, in most threads.  Then, when you get into several ply fibers, they go into what they call an "s" twist or a "z" twist.
Q  Okay, how about the size of the thread or fiber -- is that a distinguishing characteristic?
A  That's referred to basically as the denier or the size.  It is pretty standard among sewing threads.  You have a certain number of threads which are the same size throughout the industry.
Q  Okay, how about color as a characteristic?
A  Yes; color is a characteristic which we compare.  Of course, colors can vary substantially.
Q  Okay, now let me ask you what tests do you perform on questioned fibers when you compare them with known fibers?
A  On the natural fibers, we perform a series of microscope tests.  These fibers can be identified microscopically.  For the man-made fibers, we examine them microscopically and then continue on with chemical solubility tests.
Q  What is a solubility test, sir?
A  It's just a simple matter of comparing a section of fiber from Exhibit A with a section of fiber from Exhibit B, using several different kinds of solvents and reagents to determine under a microscope or magnifying lens if they dissolve in the same manner at the same speed and so forth.
Q  Is that what a solvent is?
A  A solvent is a liquid designed to dissolve something.
Q  I see, and is that also called a reagent?
A  Yes.
Q  Now, did you have occasion to examine questioned fibers and threads in this case using those methods which you described?
A  Yes; I did.
Q  What equipment did you use?
A  I used the microscope and various spot plates and equipment generally used in the laboratory.
Q  Was that equipment generally in use in 1970?
A  Yes; it was.
Q  Now, are you familiar with a term called "thin layer chromatography"?
A  Yes; I am.
Q  Would you please explain what that is, sir?
A  Thin layer chromatography is a procedure where a dye, a solvent -- any substance -- is extracted from a solid usually, put in solution, and then spotted on a silica gel plate.  This is a glsss plate or a plastic plate that's coated with a coating of silica gel.  It is then put into a tank which contains about a half an inch of a solvent system.
     This solvent system then migrates up the plate, carrying the various constituents of whatever you are analyzing along with it, and it spots these constituents out at various stages along its travel, and this is called its Rf factor, and the same drug will always spot out at the exact same position under the same conditions -- temperature and so forth.
Q  Okay, I believed you mentioned drugs -- does it work for any substance?
A  Yes; it works for drugs, dyes, practically any substance that can be dissolved or put into solution.
Q  Did you use that in this case?
A  No; I did not.
Q  Now, what about the identification of fibers by industrial manufacturers -- is that the same as the identification in the crime laboratory?
A  Well, no; they have a particular procedure that they use for identifying fibers.  Many of the larger manufacturers now put trace elements into their batches of synthetic fibers so they simply check to see if that trace element is present if they want to determine if it is their fiber.
     They have various methods this way.  However, they usually are working with a pound of sample if they need it, whereas the forensic chemist usually works with a very small, minute fiber.
Q  Okay, and is that sufficient in forensic applications?
A  Yes; for microtechnique applications.
Q  Now, with regard to wood, what distinguishing characteristics, if any, do you look for when you are comparing questioned samples of wood?
A  Well, if the wood section is large enough, of course you can observe such things as grain, annual growth rings, color, texture, and also, using small amounts, the cellular construction.
Q  Now, are some of these characteristics visible to the naked eye?
A  Yes; they are.
Q  Okay, what about some other characteristics?
A  No; cellular structure, for instance, you have to examine under a microscope.
Q  And how do you do that, sir?
A  It's done by shaving very small pieces of wood from the sample and digesting it in a weak solution of sodium hydroxide, then placing it on a microscope slide, and it can be either stained or not stained.  The cells are a little better visibly if you stain it, but either way it can be analyzed.
Q  Now, what does the term "grossly similar," if you are fimiliar with that term, mean in the forensic laboratory?
A  As used in the crime laboratory at Fort Gordon, it means microscopically identical.
Q  Is it accurate to say that when a forensic examiner such as yourself uses that term "grossly similar" it does not mean roughly similar as the layman --
A  (Interposing) No; it does not.
Q  Is it possible to determine whether a piece of wood was once part of another piece of wood?
A  Yes; it is.
Q  How do you do that?
A  Well, the easiest way, of course, is through physical characteristics -- grain patterns, annual growth rings, things that nature puts there, and things that match perfectly.
Q  Now, based on your experience, will a physical match, such as you have described, the annual growth rings -- with it occur at more than one place on a given length of lumber?
A  Well, along the length of the lumber it will appear anywhere that the tree or the lumber was sawed in a cross, horizontal section -- the annual growth rings would appear; yes.
Q  Now, let me ask you about paint, Mr. Browning; how do you compare questioned paint samples with known paint samples?
A  Well, first they are examined under what we call a stereoscope.  It is a microscope with a low power, and also gives a third dimension to the sample, you know, and you not only see the linear plane but you can see depth as well.
     We examined it under that, and we examined it for such things as texture -- whether or not the chip of paint has only one layer of paint or whether it has several.  If it has several, of course, you compare the order in which the layers are there.
     Anything that appears unusual about the paint is noted while examining under the microscope.  Then we go to chemical examination such as solubility tests.  If there is an adequate sample we run solubility tests.  We also paralyze.  Paralyzing is simply converting it to a gas in an attachment; and you convert this converted gas into a gas chromatograph.  There it is analyzed -- the chemical constituents are analyzed.
Q  Is that the chromatograph of which you spoke earlier?
A  No, this is a different instrument entirely.
Q  Would you describe that, please?
A  Okay, the gas chromatograph is an instrument where you inject a liquid sample usually; and this liquid sample is converted to a gas, which then passes through a column, and the various constituents are absorbed on this column.
     Then, due to temperature changes and the time on the column which is know as retention time, each of these substances will be released from the column at a set time.  They are picked up and identified on a detector -- by a dectector -- and recorded on what we refer to as a spectrum, which is simply a chart that shows peaks and valleys whenever a substance is detected.
     This spectrum is reproduced continually by the same substances.
Q  This chart, is it in any way similar to what most of us would recognize as a electrocardiogram?
A  Yes, it is something similar to that.
Q  Now, what are you looking for when you examine questioned paint samples?
A  Well, in the forensic laboratory we are basically looking for comparison, for a match.  If we take a paint chip from exhibit A and get a spectrum, then run a paint chip from exhibit B and obtain another spectrum, we expect the spectrums to be identical.
     Actually, they should also be able to superimpose one over the other to say that you have a match.
Q  Okay, how about trace elements; does that play any factor?
A  Ah, yes, the gas chromatograph is sensitive -- not as much as some other instruments -- but it is sensitive; and of course in most any analysis we are concerned, from a comparison standpoint, with the trace elements more than with the main constituents.
     For instance, all paint may have a titanium dioxide base, so obviously we would expect to find that present; but if it also contains trace elements of material picked up during the manufacture of that one particular run or from the raw materials used in that one particular run, then a comparison of those trace elements lends a lot more power to the fact that it was from the same paint chip.
Q  Okay, when you say, "trace elements picked up from a particular run," are these impurities of some type?
A  Yes, generally impurities, something not designed by the manufacturer to be there.  They are present in every run of paint.
Q  Now, let us say you have done your test; what are you able to say with respect to a questioned paint sample and a known paint sample?
A  We give basically the same report that we give with the fibers or other materials.  If there are no differences in any of the results, we say that the paint from exhibit A could have originated from a common source with the paint from exhibit B.
Q  Okay, did you perform tests such as you described using questioned paint samples in this case?
A  Yes, I did.
Q  How about the -- I don't know whether you answered or not -- about the spectrograph.  Would would you explain what that is?
A  That is an emission spectrograph.  That is an instrument that through the dispersion of light records the presence of any element present in a burned sample.  When a sample is burned, the light produced is recorded; and this is a very sensitive instrument that can produce the presence of elements in the range of three or four parts per million.
Q  Did you use that on the questioned paint samples in this case?
A  Yes, I did.

MR. MURTAGH:  Your Honor, at this time we would offer Mr. Browning as an expert witness in the field of forensic chemistry and with its applications to the examination of the questioned fiers, the questioned paint, questioned wood samples.  We would ask that he be received as such.  We offer Mr. Browning as an expert.

THE COURT:  Very well.

MR. MURTAGH:  Your Honor, pursuant to our abbreviated procedure, I am going to read and I will show to Counsel a list of exhibits which are in evidence and which Mr. Browning examined and would authenticate.

BY MR. MURTAGH:
Q  Mr. Browning, let me show you a Government Exhibit 306, which has been identified by Mr. Shaw as a piece of wood which he found outside the back of the house, and about which there has been testimony that blood of the ABO groups, Type A and AB, were found on it.  Do you recognize that object, sir?
A  Yes, I do.
Q  Let me also show you Government Exhibit 307, which Mr. Flinn I believe has testified is the debris removed from that object.  Do you recall that?
A  Yes, I do.
Q  Mr. Browning, let me ask you about another group of exhibits and, if I were to show them to you, would you be able to identify them by your initials or some other means?
A  Yes, I would.
Q  Government Exhibit 235 -- I'm sorry, that is Government Exhibit 125, splinters and threads from near the largest blood stain?
A  Yes.
Q  All right, Government Exhibit 116, fibers from the underside of the throw rug?
A  Yes.
Q  Government Exhibit 325, debris from the vicinity of the left hand and arm in the master bedroom.  Government Exhibit 126, debris from under the head of the cadaver?
A  Yes.
Q  Also, I believe, identified as E-24.  Government Exhibit 326, E-303, debris from under the trunk and leg area of the rug on the body -- rug area?
A  Yes.
Q  Government Exhibit 327 and E-302, fibers from the rug area in the north corner of the footboard?
A  Yes.
Q  Government Exhibit 324, E-300, fiber found on the floor by the east wall by the headboard of the bed?
A  Yes.
Q  Government Exhibit 119, E-19(a), debris from the sheet on the bed; and Government Exhibit 121, E-20(a), debris from pillowcase in the bedroom?
A  Yes.
Q  Did you have occasion to examine those exhibits in this case?
A  Yes, I did.
Q  Now, Mr. Browning, I am going to ask you whether you had occasion to examine Government Exhibit 107, E-229, which I believe Mr. Flinn identified as debris removed from this bedspread?
A  Yes, I did.
Q  How about Government Exhibit 346, D-118, from which Dr. Chamberlain, I believe, collected a splinter and debris from the north pillow in Kimberly's room?
A  Yes.
Q  How about Government 345, your number 116, debris from the pulled-back bedding?
A  Yes.
Q  Referring to the pulled-back bedding of Kimberly's bed.  Government Exhibit 347, E-119, debris from the bottom sheet of Kimberly's bed?
A  Yes.
Q  And Government 356, E-123, debris from the purple bedcover on Kimberly's bed?
A  Yes.
Q  Did you examine those, sir?
A  Yes, I did.
Q  And did you have occasion to examine Government Exhibit 362, or D-52NB -- debris removed from the green bedspread in Kristen's room?
A  Yes.
Q  How about Government 322 -- multicolored throw rug found by the feet of Colette MacDonald?
A  Yes.
Q  And I believe -- did you have occasion to examine Government 372, identified as E-63NB -- debris removed from the bottom sheet of the north bedroom of Kristen's bed?
A  Yes; I did.
Q  How about Government Exhibit 101 -- the blue pajama top found on the body of Mrs. MacDonald?
A  Yes; I did.
Q  You examined that?  Now, Mr. Browning, let me ask you -- with respect to Government Exhibit 101, the pajama top -- I will ask you to take a look at it and tell us whether it is in substantially the same condition as when you first saw it?
A  With the exception of some square holes that have been cut, evidently for analytical work, it appears to be in the same condition as it was when I received it.
Q  Mr. Browning, when you received it, did you have occasion to examine to seams of that object -- the pajama top?
A  Yes; I did.
Q  And how about the types of threads used in sewing the seams?
A  The seams were sewn with a cotton thread.  It appeared a purple color.  It was sewn in sort of a criss-cross type fashion.
Q  Did you observe the condition of these threads?
A  Yes; in the seams that were ripped, the threads -- some threads were still adhering to the jacket along the ribbed seam.
Q  Can you describe the condition of the threads remaining on the seams?
A  Yes; the threads were in pretty deteriorated condition.  It was possible to break a fairly short thread by exerting a reasonable amount of pressure on it.
Q  If you know, sir, what would account for that poor condition of the thread?
A  Well, it appeared to be an older jacket, washed many times -- just an older jacket.
Q  How about perspiration?
A  Well, perspiration would help in the deterioration.
Q  How about the length of the threads adhering to the seams -- the loose ones?  Did you take a look at those?
A  Yes; as I said, most of them are criss-crossed; but when stretched out, pulled apart, they were approximately one-half to one inch long.
Q  Okay; how about the twist of the thread?
A  The twist of the fiber itself, or the way the thread was designed?
A  I mean, the thread itself, sir.
A  The thread itself, like I stated, was sewn in a criss-cross manner, and the configuration was in a criss-cross configuration -- sort of rounded, so the thread would not lie flat on the desk, but would stand up in a raised position.
Q  All right, now; how about the size -- or I believe they use the term "denier" -- of the threads?
A  Yes; they were all the same -- the ones I compared.
Q  Is it accurate to say that the size of thread is like the gauge on wire?  Do you know what I mean?
A  Yes; thread, as I said earlier, is sold commercially, and most housewives know 50 or 60, I think, is the popular size.  It is pretty universal.
Q  Were any of these purple cotton threads which you have described on the pajama top -- were any of them stained?
A  Yes; they were.
Q  Do you know what color the stain was?
A  Yes; the stain was a red-brown color.
Q  Do you have an opinion as to what that color indicates?
A  Yes; it appeared to be blood.
Q  WEre there any areas along these seams where no threads were remaining?
A  Well, along the seam, there could be an area of say, for or five inches, where there were no threads.
Q  And were there holes where the threads had been?
A  Oh, yes.
Q  How about the fabric of the pajama top itself?  Did you examine that?
A  Yes; I did.
Q  Could you tell us, please, what the composition of that fabric is?
A  Yes; the fabric is made up of a cotton polyester blend -- the standard wash and wear type blend.
Q  Okay; and what color is it, by the way?
A  It is a blue.
Q  Is the fabric the same color as the threads -- the seam threads?
A  No; the threads, as I stated earlier, were purple.
Q  Just for the record, sir -- would you describe, please, the color of that fabric, if you can?
A  The fabric appears to be a medium blue color.  That is the best way I can describe it, I guess.
Q  Now, directing your attention to the area around the cuffs and the collar of the pajama top -- would you please describe to the jury and show them, if you would, sir, what is present?
A  Well, the cuffs and the collar are trimmed with a white beading, I call it.  It is a trim around the collar and around the cuffs -- a white strip.
Q  Now, Mr. Browning, let me show you at this time Government Exhibit 102 -- a piece of material which has been described as being found on the upturned corner of the throw rug on Mrs. MacDonald's body, and further as having contact stains of Type A blood.  Would you take a look at that, sir?
A  Yes.
Q  When you examined the pajama top itself in 1970, was there a pocket present?
A  No; there was not.
Q  Now, Mr. Browning, let me ask you -- have you ever seen another pajama top which is identical in all characteristics to that pajama top?
A  No, sir; I have not.
Q  Mr. Browning, with respect to Government Exhibit 306 -- what has been described as the club -- and Government Exhibit 307 -- which has been described as the fibers removed from the club -- let me ask you if you have conducted an examination of the items in that vial with respect to the pajama top?
A  Yes; I have.
Q  And would you tell us, please, sir, the results of that examination?
A  Yes; I found in this vial two purple cotton fibers that were identical in all aspects to the purple cotton threads used to sew the pajama jacket.
Q  Okay; and based on that -- or based on those findings, sir -- what opinion, if any, do you have satisfactory to yourself as to whether the items found -- the fibers found -- on the club could have originated from the pajama top?
A  Yes; that would be my opinion -- that the fibers found in this exhibit could have originated from the pajama top.

MR. MURTAGH:  Your Honor, indulge me for just a moment.

(Counsel confer.)

MR. MURTAGH:  Your Honor, may we approach the Bench?

THE COURT:  Yes.


B E N C H  C O N F E R E N C E

MR. SEGAL:  Mr. Murtagh has shown me some of his charts that he wants to show Mr. Browning, and I want to register my objection -- not to the entire charts but on a number of places where he has requested Mr. Browning to fill in information, it says "Type A Blood -- Colette."

MR. MURTAGH:  No, Browning cannot testify to that.  For example, he just looked at the threads from the club --

MR. SEGAL:  (Interposing) Let me show you, Your Honor.  This is what I object to as being argumentative.  It says "A -- Colette's group."  That is not Colette's group; that is the group of "x" million people in the United States; "AB -- Kimberly's group"; that is not Kimberly's --

THE COURT:  (Interposing) I think that has all been explained.  Every witness has testified -- I think this is just a way of identifying it with Colette, but every witness has testified that all the people in the world with "A" have got it; and Colette had it.

MR. SEGAL:  That's correct.  I agree with that, Your Honor, and we've admitted the exhibit here which says that.  I don't think the Government has a right to reargue that every time --

THE COURT:  (Interposing) They are not rearguing that.

MR. MURTAGH:  I'm not going to make any point -- this witness is not going to address that at all.  He cannot testify to that, but I do think, Your Honor, that that is a fact which is in evidence which the jury is entitled to relate one piece to another.  All we're saying is that Colette's group is A.  I'm not saying this is Colette's blood.

MR. SEGAL:  The issue is that it is incorrect scientifically or any other way except as argument to call it Colette's group.  It is Type A period.  She is a member of that group.  They have another chart.  In fact, it is laying right up there in front of the jury.  They cannot be permitted to repeatedly argue their case through the exhibit which is a conclusion they want.

THE COURT:  I don't argree with you on that.  I don't think that is an argument at all.  I think it is just a matter of identifying it, and any number of witnesses have testified without objection first that there are zillions of people with A Type of blood and that she was one of them, but that just to identify A Type blood does not identify it with her and, secondly, they are just identifying it as evidence showing that she had A Type blood.

MR. MURTAGH:  Your Honor, I would welcome an instruction to the jury on that.

MR. SEGAL:  It does not need an instruction.

THE COURT:  There will be one appropriately on all of these things and, if you feel I am not going to cover it, of course, we are going to have a charge conference and both of you will be able to submit and we will go over it.

MR. MURTAGH:  The only thing I am concerned about is I am concerned that the jury understand that the Government is not trying to pull a fast one.

MR. SEGAL:  Do you want an instruction on that -- that the Government is not trying to pull a fast one?

THE COURT:  No; in other words, if we wanted to load it, we would have said that is Colette's blood.

MR. SEGAL:  You would have been laughed out of court, Brian.  Don't be silly.  That is a fatuous remark.

THE COURT:  I OVERRULE the objection to this chart.  Is this a smaller version?

MR. MURTAGH:  Yes, Your Honor.  It has photographs which are in evidence.

THE COURT:  I cannot see that that hurts anybody or helps -- either one.

MR. MURTAGH:  Let me explain something.  This witness is going to testify to a number of vials.

THE COURT:  What?

MR. MURTAGH:  A number of vials of debris that he examined.  His examination went to the vials as to the pajama top and the vials as to the splinters -- in other words, it relates to the wood and it relates to the threads.  There are two charts which have some overlap of necessity because, in other words, the club had only the threads on it.  It did not have the polyester yarns, but in other words, inside the house you might have in one vial the yarns, the threads, and the splinters so that I am going to take him through it first with regard to one and then with regard to the other.  It would speed it up considerably if we could use the chart.

THE COURT:  I overrule his objection to it.

MR. MURTAGH:  Thank you, sir.  I just wanted to make sure.  Ther is anothe chart.

THE COURT:  We are doing everything in duplicate including the overruling of objections.

(Bench conference terminated.)


MR. MURTAGH:  Your Honor, at this time, the Government would mark Government Exhibit 653, a chart.

(Government Exhibit No.  653 was marked for identification.)

MR. MURTAGH:  And Government Exhibit 654, another chart.

(Government Exhibit No.  654 was marked for identification.)

BY MR. MURTAGH:
Q  Now, Mr. Browning, I am going to show you two charts here, Government 653.  Mr. Browning, I am going to ask you about a number of exhibits and perhaps if you would step down and with the aid of the pointer, it might speed this up a bit.
     Okay, Mr. Browning, I believe you testified a minute ago that with respect to Government Exhibit 307, the debris removed from what has been identified as the club, you found two purple cotton threads; is that correct, sir?
A  Yes; that is correct.
Q  Okay, now, would you step back just a little bit so the jury could see and would you indicate where on Government 653 and 654 you have indicated these results with respect to the pajama top?  This is Government 653.
A  I see.  Here I found the two purple cotton threads from Exhibit E-101.
Q  Okay, and on 654, have you indicated those same results in a similar column?
A  It is a little confusing with these numbers.
Q  Well, in other words, if you would look at the left-hand column on 654 which describes Exhibit 101 -- I think you are on the wrong chart -- now, where with respect to Government 306 and its companion exhibit 307, have you indicated those results?
A  Here (indicating).
Q  Okay, Mr. Browning, let me ask you with respect to Government Exhibit 125 which has been identified as the splinter removed from near the largest blood stain in the master bedroom -- do you see that there, sir?
A  Yes; I do.
Q  Now, did you conduct an examination with respect to that splinter?
A  Yes, I did.
Q  Let me also ask you, did you examine the contents of the vial in which that splinter was contained for the presence of any threads or yarns?
A  Yes, I did.
Q  Okay, and what did you find, sir?
A  I found purple cotton threads, similar to the thread used to sew the pajama jacket -- Exhibit 101.
Q  What conclusion, if any, do you draw from your comparison of those threads with the pajama top?
A  The threads in Exhibit 125 were identical to and could have originated from Exhibit 101.
Q  Okay, now, you have indicated that on 654 --
A  (Interposing) 654.
Q  -- 654; and how about on 653?  Point that out, sir, with respect to Government 125?
A  Yes, this is the same exhibit here where it is recorded again.
Q  Okay, let me ask you, Mr. Browning, did these exhibits, these vials, did they contain a multitude of different types of exhibits?
A  Yes, each vial contains multiple debris that could include anything -- wood, fibers, hairs, anything of this nature.
Q  With respect to those vials, did you look for one thing at a time or did you compare them with one exhibit at a time?
A  No, I took one particular item, such as fibers, at a time and examined these.
Q  And did you examine them with respect to the pajama top?
A  Yes, I did.
Q  All right, now, did you conduct such an examination with respect to Government Exhibit 116 -- I believe it is CID Number E-16 -- the fibers from the underside of the throw rug, and do you see that on this chart?
A  Yes.
Q  Now, with respect to Government 116, what did you find?
A  On this exhibit I found the blue polyester cotton yarn.
Q  And what did you compare that with, sir?
A  I compared that with the blue cotton-polyester yarn from the pajama jacket.
Q  Okay, and what were your results?
A  They were identical, and the two fibers could have originated from a common source.
Q  And that would be the fabric of the pajama top?
A  Yes, the fabric or material of the pajama top.
Q  Okay, and have you indicated that on 653 -- I'm sorry, it is 654?
A  654, yes.
Q  Okay, would you point that out, please, to the jury?
A  Yes, the underside of the throw rug here, and the jacket here.
Q  Where on the column have you indicated the results?
A  Here (indicating).
Q  That corresponds to --
A  (Interposing) The blue polyester cotton yarn.
Q  Let me ask you if you conducted such an examination with respect to Government Exhibit 325, or E-301, as it is identified by the CID, that is the debris from the vicinity of the left hand and arm of the body outline in the master bedroom?
A  Yes, I have.
Q  Okay, and what did you find, sir?
A  In this exhibit I found purple cotton threads similar to the threads used to sew the seams of the jacket.
Q  And what conclusion did you draw from that, sir?
A  It is my opinion that they could have originated from a common source.
Q  Okay, and you have indicated that on 653 and 654?
A  Yes.
Q  Well, let's see, are you talking about Government 125 or 325?
A  325, yes, it is here at this point.
Q  Okay, now, with respect to 325, on the other chart, where have you indicated that?
A  325 is this exhibit here, as indicated here.
Q  Did you conduct such an examination with respect to Government 126 or CID E-24, that is debris from under the head region of the body outline in the master bedroom?
A  Yes, I did.
Q  Would you point it out, please on the chart?
A  This is indicated here.
Q  Okay, what did you find, sir?
A  I found purple cotton threads, similar in all respects to the purple cotton threads used to sew the pajama jacket.
Q  Mr. Browning, if I could ask you sir, to keep your voice up a little bit.
A  Yes, I stated I found purple cotton threads here similar in all respects to the purple cotton threads used to sew the jacket, Exhibit 101.
Q  Okay, and you have indicated that on one chart, and how about on the other?
A  Yes, and indicated here on this chart.
Q  Now, did you conduct such an examination with respect to Government 327 or E-303, that is the debris from under the trunk and legs area of the body outline of Mrs. MacDonald on the master bedroom floor?
A  Yes, I did.  That is indicated here and I found both the purple cotton threads and the blue polyester cotton threads that were similar in both respects to the threads of the pajama jacket, Exhibit 101.
Q  Okay, and you have indicated that on 654?
A  Here, yes.
Q  And how about on 653?  Did you see Exhibit 327 there on 653, sir?
A  327?  Yes, here.  I have noted the purple cotton threads.  I don't believe there's a place for the polyester.
Q  Well, sir, as I understand your testimony, did you find any blue yarns -- that is, polyester yarns -- in the debris removed from the club?
A  In the debris removed from the club?  No, I did not.
Q  All right, how about Government 326, or CID E-302, that is the fibers from the rug area at the north corner of the footboard.  Do you see that on the chart, sir?
A  Yes.
Q  Okay, what did you find with respect to that exhibit?
A  In this exhibit I found purple cotton threads that were identical to the thread used to put the seams on Exhibit 101.
Q  And what is your opinion with that, sir?
A  That the threads could have originated from a common source.
Q  All right, let me ask you with respect to Government 324, that is E-300, blue fiber found on the floor by the east wall by the headboard of the bed.  Do you see that on the chart?
A  Yes, I do.
Q  What were the results of your examination there, sir?
A  I found purple cotton threads similar to those used to sew the seams of the jacket, Exhibit 101.
Q  And what is your opinion with respect to that, sir?
A  My opinion is that they could have originated from a common source.
Q  Did you conduct such an examination with respect to Government 119, or E-19(a), that is debris from what has been identified as the bottom sheet on the master bed?
A  Yes, I did.
Q  And what were your results, sir?
A  In this exhibit, I found both purple cotton threads and the polyester cotton yarn, similar to those used to manufacture the jacket, Exhibit 101.
Q  And your opinion, sir?
A  That they were similar and could have originated from a common source.
Q  Now, let me ask you with respect to Government Exhibit 121, that is E-28 [sic; E20(a)], debris from the pillowcase on the bed?  I don't believe that is depicted in the photograph?
A  Yes, in this exhibit, the debris from the pillowcase on the bed, I found both the purple cotton threads used to sew the seams of the jacket and the blue polyester cotton yarn used to manufacture the fabric part.  It is my opinion that they could have originated from a common source.
Q  With respect to Government Exhibit 107, or E-229, that is the debris removed from the multicolored bedspread found inside the sheet on the floor of the master bedroom, did you examine that, sir?
A  Yes, I did.
Q  And what were the results of that examination.
A  In that exhibit, once again, I found both purple cotton threads and blue polyester cotton yarns, and they were both similar to the yarns and the thread used to sew the jacket of Exhibit 101; and it is my opinion that they could have originated from a common source.
Q  Okay, let's move to the south or Kimberly's bedroom, and let me ask you with respect to Government Exhibit 346, or D-118, what has been described as a splinter removed from the north pillow of Kimberly's bed; did you examine that, sir?
A  Yes, I did.
Q  And what examination did you conduct with respect to the pajama top?
A  On the pajama top I determined the presence of purple cotton threads and blue polyester cotton yarns.  Once again, in this case they were both identical to the yarn and the thread used to manufacture the jacket, and it is my opinion that they could have originated from the same source.
Q  Okay, now, how about Government 345, or E-116, the debris from the pulled-back bedding of Kimberly's bed?
A  Yes, the same thing applies there.  I found both the purple cotton threads and the blue polyester cotton yarns in this exhibit.
Q  Now, how about Government Exhibit -- is that it; 347 -- that is the debris from the bottom sheet of Kimberly's bed.  What did you find with respect to that exhibit, sir?
A  On this exhibit I found the purple cotton threads that were identical to the cotton thread used to sew the pajama jacket, E-101.
Q  And what is your opinion, sir?
A  It is my opinion that they could have originated from a common source.
Q  Okay, now, with respect to Government Exhibit 356 -- that is the debris from the purple bed cover of Kimberley's bed -- what did you find with respect to that exhibit, sir?
A  On that exhibit, I found both the purple cotton threads and the blue polyester cotton yarns.  They were similar to the yarn and thread used to manufacture the jacket, and it is my opinion that they could have originated from a common source.
Q  Okay, now, with respect to Kristen's -- the north -- bedroom, what examination did you conduct with respect to Government 362 or D-52NB, the debris from the green bedspread in Kristen's room?
A  On this exhibit, once again, I found both the purple cotton thread and the blue polyester cotton yarn similar to that used in the manufacture of the jacket, and it is my opinion that they originated from a common source.
Q  Okay, now, Mr. Browning, have you indicated those results on both charts where there is a common --
A  (Interposing) Yes; I have.  Where they were listed on both charts I have so indicated.
Q  Now, let me ask you with respect to Government 653, did you also examine some of these exhibits with respect to any wood that might be contained therein?
A  Yes; I did.
Q  Okay, now, let me ask you with respect to Government Exhibit 125 or D-23, the splinter and threads from near the large blood stain, could you tell us, sir, what you found on your initial examination of that exhibit?
A  On my initial examination I found that the color, texture and the cell structure was identical to that of the weapon 306, and it was my opinion at that time that the splinter could have originated from this 306.
Q  Okay, now, Mr. Browning, let me ask you with respect to the examination -- was it your opinion that it could have originated from the piece of wood, Exhibit 306, based on those characteristics which you have testified about?
A  Yes; I did.

MR. MURTAGH:  Your Honor, if you would indulge me for a second.

(Pause.)

BY MR. MURTAGH:
Q  Mr. Browning, at this time, let me show you what has been previously received as Government 439(a), enlargement, and let me ask you, sir, what that depicts.  Please, after you have told us, show the jury, sir.
A  This appears to be a splinter -- a blown-up picture of the splinter present here in this exhibit near the largest blood stain.
Q  You are referring to Government 125, sir?
A  Yes; I am.

MR. MURTAGH:  Your Honor, at this time the Government would mark Government Exhibit 438, and Government Exhibit 435, two photo enlargements.

(Government Exhibit Nos.  438 and 435 marked for identification.)

BY MR. MURTAGH:
Q  Now, Mr. Browning, let me ask you if you have recently had an occasion to perform any additional examination with respect to that splinter and Exhibit 306, the club.
A  Yes; I have.
Q  Okay, would you tell us, please, what those examinations entailed?
A  It was determined that the splinter made a perfect physical match into the murder weapon E-306 -- by "physical match," I mean that all physical characteristics of the splinter fit perfectly into the identations in the murder weapon.
Q  Let me show you Government Exhibit 438 and 435.  Would you please tell us, sir, if you recognize the areas depicted?
A  Yes; I do.  These simply show two views of the splinter that was fit into the exhibit.
Q  The exhibit?
A  Exhibit 306.  Both sections of the splinter are indicated in the center.
Q  Let me show you Government Exhibit 438 and ask you, sir, what that depicts.
A  This is the same thing with different views showing the splinter as it is fit into the main part of the Exhibit 306.
Q  Okay, sir, if you could tell us, please, if you know, what the object appearing on Exhibit 306 on the left-hand side is?
A  This?
Q  Yes.
A  That is a paint stain.

MR. MURTAGH:  Your Honor, at this time, the Government would offer 438 and 435 in evidence.

THE COURT:  Very well.

(Government Exhibit Nos.  438 and 435 were received in evidence.)

BY MR. MURTAGH:
Q  Now, Mr. Browning, let me ask you again with reference to Government Exhibit 653 whether you examined vial 325 -- that is, the debris from the vicinity of the left hand and arm area of the rug which you previously testified contained, I believe, purple cotton threads.  Did you examine that vial with respect to Exhibit 306, the piece of wood?
A  Yes; I did.
Q  Would you tell us, please, the results of that examination?
A  On that exhibit I found wood splinters that were identical in color, texture, and cell structure to the wood of Exhibit 306.  It is my opinion that they could have originated from a common source.
Q  Okay, were you able to fit those back in as you were with Government 125?
A  No; I was not.
Q  Now, Mr. Browning, let me ask you with respect to Government 126 -- that is, your number E-24, the debris from under the head of the cadaver -- have you examined that vial with respect to splinters in addition to your examination with respect to threads?
A  Yes; I did.
Q  Okay, what did you find, sir?
A  I don't believe, to the best of my knowledge, there were splinters in that exhibit.
Q  Okay, you have indicated on the chart nothing with respect to splinters, but you have indicated --
A  (Interposing) Purple cotton threads.
Q  How about Government 327 or E-303, that is, the debris from under the trunk and leg area under the body?
A  Yes; on that exhibit I found wood splinters which were identical in color, texture, and cell structure to the wood on Exhibit 306.  Once again, in my opinion, they could have originated from a common source.
Q  Okay, now, with respect to the north bedroom -- that is, Kristen's bedroom -- did you have occasion to examine Government 372 or E-63NB -- that is, the debris removed from the bottom sheet of Kristen's bed?
A  Yes; I did.
Q  Would you tell us, please, what you found?
A  On this exhibit I found splinters that were identical to the wood of Exhibit 303 in color, texture and cell structure.  Once again, it is my opinion that they could have originated from a common source.
Q  Now, with respect to Government 362 or E-52 north bedroom, did you examine that with respect to splinters?
A  Yes; I did.
Q  Did you find any?
A  No splinters were found.
Q  But what have you testified previously with respect to that exhibit?
A  That purple cotton threads were found on this exhibit.

THE COURT:  Mr. Murtagh, what was your previous question previous to this last one?  Which bedroom was that?

MR. MURTAGH:  Sir, we are in the north bedroom, Kristen's bedroom.

THE COURT:  I know that was the last question.  Now, about the one previous; was that Kristen's too?

MR. MURTAGH:  Your Honor, Government 362 is Kristen's bedroom; yes, sir.

THE COURT:  All right.

BY MR. MURTAGH:
Q  Okay, now, Mr. Browning, if I understand your testimony, are you saying that in the debris removed from the bottom sheet you found splinters?
A  Yes; I did.
Q  You did not find threads?
A  No; I did not.
Q  And in the debris removed from the bedspread you found threads?
A  No splinters.
Q  No splinters?
A  Yes.
Q  Mr. Browning, moving on to the south or Kimberly's bedroom, did you have occasion to examine Government 346 or your number D-118, the splinter and the debris from the north pillow?
A  Yes; I did.
Q  What did you find, sir?
A  I found wood splinters.
Q  Okay, and what was the result of that examination?
A  The splinters were identical in the three characteristics -- color, texture and cell structure -- to that of the Exhibit 306.  In my opinion, once again, they could have originated from a common source.
Q  Okay, now, with respect to that same exhibit, did you find on your previous examination any threads or yarns, and I direct you to the other chart, sir?  In other words, 346 on this chart -- would you look at the corresponding area on that chart?
A  Yes, and that is indicated here -- I found purple cotton threads and the blue polyester cotton yarn.  Obviously, I have left the cotton thread marking off this chart.
Q  Okay, Mr. Browning, let me give you this pen and ask you to mark that on there, please, in the appropriate column.  Sir, let me give you a grease pencil.
A  I have one here, I think.  I believe this will mark.
Q  Now, Mr. Browning, if I could ask you, for the sake of time, did you -- with respect to Government 345, the debris from the pulled-back bedding, would you transfer your results as to the threads and yarns if any on to this chart?
A  Yes.
Q  Okay, how about Government 347?
A  The same applies there.
Q  Okay, let me back up now and ask you with respect to Government 346, what examination you conducted with respect to the wood in that exhibit?
A  The wood splinters present in that exhibit were identical in color, texture and cell structure to the wood of exhibit 306.  In my opinion they could have originated from a common source.
Q  Okay, and you also found in that exhibit?
A  Purple cotton threads.
Q  Now, with respect to Government 345, E-116, the debris from the pulled-back bedding, would you tell us, sir, with respect to wood, if any?
A  Once again, wood splinters were present, and they were identical in the color, texture, and cell composition with the murder weapon, or to the Exhibit 306, and in my opinion they could have originated from a common source.
Q  Okay, now, sir, with respect to the threads, if any?
A  Yes, purple cotton threads were present.
Q  Now, with respect to Government 347 or E-119, that is the debris from the bottom sheet of Kimberly's bed, what, with respect to wood, sir?
A  Wood splinters were present in this exhibit also, and they were identical in color, texture, and cell structure to the wood of Exhibit 306.  Once again, in my opinion they could have originated from a common source.
Q  Okay, now, Mr. Browning, let me ask you with respect to these vials, did you compare each and every item found in those vials with each and every item submitted to you from the laboratory?
A  No, I did not.
Q  Would you describe generally how you worked your comparisons?
A  Well, if a vial contained 15 or 20 fibers, I would select two or three at random and compare those two or three with the known pajama jacket.  Same way with the splinters: I would take a sample from a vial contained three or four -- I would take probably one or two and examine these against the weapon, 306.
Q  Did you return the residual portion to the vial?
A  Yes, I did.

MR. MURTAGH:  Your Honor, at this time the Government would offer 653 and 654 in evidence.

THE COURT:  Very well.

(Government Exhibit Nos.  653 and 654 were received in evidence.)

BY MR. MURTAGH:
Q  Mr. Browning, let me hand you an additional piece of wood which is in evidence as Government 141, that has been identified as a bed slat from Kimberly's bed in the south bedroom.  Let me show you that, sir, and ask you if you recognize it?  Do you recognize it?
A  Yes, I do.
Q  Now, Mr. Browning, let me ask you, did you have occasion to conduct an examination with respect to the bed slat and exhibit 306, the piece of wood found outside the house?
A  Yes, I did.
Q  Would you tell us, please, what that examination was?
A  It was a physical examination of the grain and of the annual growth rings between the two exhibits.
Q  And what was the result of that examination?
A  I found that the annual growth rings and the grain of this exhibit were perfectly matched.
Q  Okay, and what conclusions, if any, did you draw satisfactory to yourself, sir, based on this match?
A  It is my opinion that Exhibit 306 was at one time a part of this exhibit.  I don't believe I know the number.
Q  I think it is on the tag marked Government Exhibit, sir.  I think it is 141?
A  141, yes, sir.
Q  Mr. Browning, at this time let me show you -- or let me mark first Government 427 and Government 427(a), a photo enlargement; Government 426 and 426(a) -- (a) being the enlargement; Government 425 and 425(a) -- (a) being the enlargement; Government 424 and 424(a).

(Government Exhibits Nos.  427, 427(a), 426, 426(a), 425, 425(a) 424, and 424(a) were marked for identification.)

Q  Mr. Browning, let me hand you these exhibits and ask you to look at them and see if you recognize them?
A  Yes, I do.
Q  And would you tell us, please, what those are, sir?
A  They are enlarged photographs of matching work that I did with the grain and the annual growth rings on these two exhibits.

MR. MURTAGH:  Your Honor, at this time the Government would also mark Government 440 and 440(a), anotehr photo enlargement.

(Government Exhibits Nos.  440 and 440(a) were marked for identification.)

BY MR. MURTAGH:
Q  Sir, will you please exhibit those to the jury.  You can step down, sir, and perhaps putting them on one of the easels -- and would you please tell us with respect to Government 424(a) what that photo depicts?
A  This is my Exhibit A-12 or Exhibit 141.
Q  Is that the bed slat?
A  The bed slat, yes.  This is a clear sanded area at one end of the slat.  It is indicated on this end here.  The other portion is Exhibit A.
Q  Is that Government 306?
A  Government 306, and indicates the other sanded end of Exhibit 306 as shown here.  This is a blown-up photo showing the matching grain pattern, how it corresponds -- both pieces correspond with the various grain and color, width, size and so forth.
Q  Okay, Mr. Browning, let me show you Government 440(a), which I think the jury might be able to see better.  Now, what does that photo depict, sir?
A  This appears to be the same thing, but it is just a larger blow up; and what ere compared were the various annual -- various grain effect on the side of the two pieces of wood.
Q  Mr. Browning, let me ask you, with respect to that grain pattern, what effect the annual growth rings -- or are there variations in the annual growth rings due to the weather and climate, and such things as that?
A  Yes, definite effects in annual growth rings.  These are not the annual growth rings here.  This is the grain of the wood itself.  The annual growth rings are depicted in other photographs.

MR. MURTAGH:  Your Honor, at this time may I publish this to the jury.

THE COURT:  Yes.

BY MR. MURTAGH:
Q  Mr. Browning, let me ask you if you could step over here.  I am placing Government Exhibit 141, with hopefully doesn't fall off?
A  They were joined in this manner, joined in all the characteristics.  Even the minor characteristics are identical, both the size, width, grain effect, style; everything is identical in the two exhibits, indicating this piece is a continuation of this grain pattern here.
Q  Mr. Browning, I note that with respect to Government Exhibit 386, it is not painted, is that correct?
A  306, no, it is not.
Q  Although it has paint stains on it?
A  Yes; it does.
Q  And Government 141 appears to be painted and have you sanded off that area?
A  Yes; I sanded this area.
Q  Let me move this down so the other jurors can see, sir.

(Exhibit published to the jury.)

BY MR. MURTAGH:
Q  Okay, Mr. Browning, would you now please remove the large photograph and tell us what you mean with respect to the annual growth rings?
A  Well, the annual growth rings are rings that are formed each year as the tree grows.  Some years, if there is a good bit of rain and much more moisture, the difference is larger.  The two different colorations is due to a very rapid growth in the spring and this slows down in the later part of the year, changing the color and the style of both rings.
     Each one of these rings is a year's growth, and, as you can see here, they correspond with the two exhibits -- correspond with this photograph here.
Q  Would you describe, sir, for the record, what exhibit appears on the left and right-hand sides of the photograph?
A  This is Exhibit 306, and this is Exhibit 141.
Q  Okay, and would you describe, sir, please, what portions of those exhibits we are looking at?
A  We are looking at the end of the exhibits.
Q  And has one exhibit been placed on top of the other?
A  Yes; it has.
Q  Now, sir, let me ask you with respect to the next photograph?
A  Were you looking at the grain pattern here?
Q  Either one, sir.  Go ahead.
A  This is just another photograph showing another side of the grain pattern, showing the continuation of the formation here.
Q  Okay, and is there another photograph there, sir?
A  It's underneath.  This is, I guess, a similar photograph to this.
Q  Is that the reverse side, sir?
A  Yes; this would be the reverse side; yes.  This would be the reverse side of this photograph here, showing once again the matching patterns on the opposite side.

MR. MURTAGH:  Your Honor, at this time, the Government would offer 426 and 426(a) in evidence, 424 and 424(a) in evidence, 427 and 427(a) in evidence, and 425 and 425(a) as well as Government 440(a) and ask that they be received.

THE COURT:  Very well.

(Government Exhibit Nos.  426, 426(a), 424, 424(a), 427, 427(a), 425, 425(a), and 440(a) were received in evidence.)

BY MR. MURTAGH:
Q  Mr. Browning, let me ask you with respect to two more pieces of wood -- Government 330 which I believe was identified by the CID as A-1, and bearing on it the legend "From handmade shelving, closet, south bedroom" and bearing the initials "RBS 16/30/70" -- and ask if you recognize that, sir.
A  Yes; I do.
Q  Okay, so now, with respect to the end nearest the tag, let me ask you to describe, sir, for the record, what you see.
A  This is a sawed end showing the annual growth rings of this piece of wood.
Q  Are there any holes in that end, sir?
A  Yes; there are.
Q  Let me show you Government 331, identified by the CID as A-2, bearing the initials "RBS 16/30/70" which I believe has been testified to was removed from the locked storage shed behind the house.  Did you have occasion to examine those, sir?
A  Yes; I did.

MR. MURTAGH:  Your Honor, at this time, the Government would mark Government 436, a photo enlargement.

(Government Exhibit No.  436 was marked for identification.)

BY MR. MURTAGH:
Q  Now, Mr. Browning, let me show you Government 436 and ask if you recognize the objects depicted there.
A  Yes; these are other pieces of wood found in the house.
Q  Now, with respect to Government A-1 -- I belive it also bears the FBI lab number Q127 -- would you point out on the chart where that's depicted?
A  This is here (indicating).
Q  Okay, and the lower portion?
A  Yes; here (indicating).
Q  And is that the area which you described as having holes in it?
A  Holes in the end; yes.
Q  Okay, now, with respect to Government A-2 -- I believe that bears the FBI lab number K43.
A  Yes; it does.
Q  Would you point that out?
A  That's the wood on the right side.
Q  So, based on your own examination as well as the examination depicted in the photograph, let me ask you -- do you have an opinion satisfactory to yourself as to whether those two pieces of wood, the one being the shelving and the other being the piece of wood from the storage shed, were once part of the same piece of wood?
A  Yes; they give an excellent physical match and indicate that they were at one time a part of the same piece of wood.

THE COURT:  All right, now we will take our morning recess.  We will come back at 11:45.  Members of the jury, remember all those things, and don't talk about the case.  Today we will be recessing our Monday schedule at 12:45 and back at 2:15 today.

(Jury exits at 11:30 a.m.)

(The proceedings were recessed at 11:30 a.m., to reconvene at 11:45 a.m.  this same day.)


F U R T H E R  P R O C E E D I N G S  11:45 a.m.

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

(Whereupon, DILLARD O.  BROWNING the witness on the stand at the time of recess, resumed the stand and testified further as follows:)

D I R E C T  E X A M I N A T I O N  (Resumed)

BY MR. MURTAGH:
Q  Mr. Browning, let me show you Government Exhibit 328, a piece of wood which Mr. Shaw found in the locked storage shed behind the house, which is identified by the CID Number Exhibit A-4, and ask you if you recognize that?
A  Yes, I do.
Q  And I have shown you Exhibit 306.  Let me show it to you again and let me show you Government 329, a pair of what appears to be rubber gloves which Mr. Shaw found in the locked storage shed bearing the manufacturer's imprint "Perry" and the number "8."  Let me show you those and ask if you recognize them?
A  Yes, I can.
Q  How do you recognize them, sir?
A  By my initials, case number, and so forth on the items themselves.
Q  Okay.  Now Mr. Browning, let me ask you if you conducted an examination with respect to the paint or what appears to be paint, on Exhibit 306, the pice of wood; the other piece of wood, A-4, which is 328, I believe; and the gloves?
A  Yes, I did.
Q  And what were the results of that examination?
A  The paint on Exhibit 329 and 306 were a two-layered type.  They had a white underlayer, then over the top of this layer and the same configuration was a cream-colored paint.  They were identical on the two.  The gloves contained only cream-colored paint.
     The phyisical and chemical composition of these paints in all these cases were identical.  In the case of Exhibit 328 and 306, I examined both the white layer and the cream-colored layer, and in both instances, the paints were identical.
     In the case of the rubber gloves, I examined the cream-colored paint as compared to the cream-colo of 306 and 328.  In that case, all three cream-colored paints were identical.

MR. MURTAGH:  Your Honor, at this time, the Government would mark Government Exhibit 100 and 100(a), a photograph depicting the rubber gloves and an enlargement.  Let me show those to the witness.

(Government Exhibit No.  100 and 100(a) were marked for identification.)

BY MR. MURTAGH:
Q  Would you hold these up to the jury, sir?

(Witness complies.)

BY MR. MURTAGH:
Q  Mr. Browning, let me also mark Government Exhibit 423(a), a photo enlargement, as well as Government Exhibit 428 and 428(a), a photo enlargement, and Government 430 and 430(a), a photo enlargement, and 429(a), as well as Government Chart 655.

MR. SEGAL:  May we see Your Honor?

(Government Exhibit Nos.  423(a), 428, 428(a), 430, 430(a), 429(a), and 655 were marked for identification.)


B E N C H  C O N F E R E N C E

MR. SEGAL:  If Your Honor pleases, on this particular chart, there is a photograph which the Government has never introduced in evidence and is not authenticated in any way, and I OBJECT to it.

MR. MURTAGH:  Which one is that?

MR. SEGAL:  Colette MacDonald, purportedly.

MR. MURTAGH:  Mrs. Kassab was shown, and I believe it was authenticated -- the photo of Colette was passed.

MR. BLACKBURN:  I believe it was passed to the jury.

MR. MURTAGH:  I believe it was, sir.

MR. SEGAL:  It's not in evidence.  Show me some evidence and I will withdraw my objection.

THE COURT:  I remember a photograph of Colette being identified by Mrs. Kassab.  Whether it is the same on eor not, of course, I would not know.

MR. MURTAGH:  It is the one, Your Honor, where she is wearing a pair of panties and apparently she is painting shelves.

THE COURT:  Okay.

(Bench conference terminated.)

(Counsel confer.)

MR. SEGAL:  I will withdraw the objection.

THE COURT:  The objection is withdrawn.  Go ahead.

MR. MURTAGH:  Thank you, Your Honor.  I will replace these photographs at a more convenient time.

BY MR. MURTAGH:
Q  Let me show you Government 655, Mr. Browning.  Let me show you some additional photographs which have been marked -- Government 421(a).  I would like you to tell us, please, what that is?

(Government Exhibit No.  421(a) was marked for identification.)

A  This is a picture of Exhibit 306.
Q  And is that reflected on the chart?
A  Yes, it is.  Here and here.
Q  How about the lefthand side?
A  Here (indicating).
Q  Let me show you Government 428(a), and ask you whether a portion of that photograph appears on the chart?
A  Yes, a portion of this photograph appears here.
Q  What has been deleted, sir?
A  It appears the bottom portion.
Q  In the photo on the chart, has some object on the lefthand side been deleted?
A  Oh, I see.  Exhibit 306.
Q  Okay.  All right, let me also show you Government 429(a) and 430(a) and would you tell us, please, whether A-4 appears in one of those pictures?  Could you turn it around, sir?
A  A-4 appears again here.
Q  Okay.  And how about Government 432(a)?  Could you tell us, please, whether A-4 appears in that one?

(Government Exhibit No.  432(a) was marked for identification.)

A  This corresponds with this photograph here.
Q  Mr. Browning, by "A-4," I am referring to Government Exhibit 328.
A  Yes.  This one?
Q  Does Exhibit A appear in that one?
A  Exhibit A, once again, appears here and here.
Q  Now Mr. Browning, if I could ask you to step over here, please, perhaps if the counsel would also, I would like to show you Government 335, which has been admitted as the footboard of Kimberly's bed.  Do you recognize that, sir?
A  Yes, I do.
Q  And I ask you whether the portion which is upright now -- the leg that you are exhibiting to the jury, appears in any of those photographs?
A  Yes, it does.
Q  We will go back to the photographs in a minute.  Let me just ask you about Government 637, which has been admitted as the headboard of Kimberly's bed.  Would you turn that around, and directing your attention to this end which I have in my hand, and ask if you recognize that?
A  Yes, I can.  This is all from the photos on the board.
Q  Okay, now, Mr. Browning, let me ask you to return over here to the chart.  With respect to the paint examination that you conducted on Exhibits 329, that is the pair of Perry latex gloves, where you have indicated your results on the chart?
A  I have indicated here, cream paint on it.
Q  And that refers to a match with what cream paint?
A  With the cream paint present on Exhibit A-4, and also on the Exhibit 306.
Q  Now, with respect to the paint on Exhibit 328, the piece of wood, where have you indicated the results, sir?
A  I have indicated here that both white paint -- single area white paint and the cream paint -- white paint -- was present on that exhibit.
Q  Okay, and -- now, Mr. Browning, let me ask you whether you have an opinion satisfactory to yourself, sir, as to how the paint on Exhibit 328 or A-4, and the paint on Exhibit 306, that is the piece of wood found outside the house -- and I am referring to that square configuration in the photograph -- do you have any opinion, sir, as to how that paint got there?
A  Yes, it appears that when Exhibit 637 was painted, the leg was resting on Exhibit 306 to keep it off the ground while painting.
Q  Okay, and how about the paint on Exhibit 328?
A  The same thing applies.  It appears that Exhibit 335 was resting on the flat part of Exhibit 328 when it was painted.

MR. MURTAGH:  Your Honor, if I may have a second.

(Consel confer.)

MR. MURTAGH:  Your Honor, at this time the Government would offer 655 in evidence.

THE COURT:  Very well.

(Government Exhibit 655 was received in evidence.)

MR. MURTAGH:  As well as 429, 429(a), 432(a), 430 and 430(a), 428 and 428(a), 421 and 421(a), 100 and 100(a), and ask that they be received.

(Government Exhibits Nos.  429, 429(a), 432(a), 430, 430(a), 428, 428(a), 421, 421(a), 100, and 100(a) were received in evidence.)

BY MR. MURTAGH:
Q  Mr. Browning, with respect to the paint which appears on Government 637, which I believe is the headboard, in Government Exhibit 306 as well as Government Exhibit 335, the footboard, and Government 328; was an examination conducted of that paint under your supervision?
A  Yes, it was.
Q  And who conducted that examination?
A  Mr. Robert Vogenthaler.
Q  And if you know, sir, what were the results of that examination?
A  The results as reported to me were identical to the paints on Exhibits A-4 and 306 -- A-4 being Government Exhibit 328.
Q  Okay, and is that indication on the chart, sir?
A  I believe so.
Q  Now, Mr. Browning, approximately how many exhibits, over what period -- well, let me just ask you: over what period of time did you participate in the examination of exhibits in this case?
A  Slightly more than a year, from February of 1970, to probably March or early April of 1971.
Q  Okay, and approximately how many exhibits did you have occasion to examine at one time or other?
A  I would estimate over a hundred.

MR. MURTAGH:  Your Honor, we would offer Government 433(a), one of the legs of the headboard, and ask that that be received.

(Government Exhibit No.  433(a) was received in evidence.)

MR. MURTAGH:  Your Honor, that concludes the direct examination of Mr. Browning.  The Defense may cross-examine.

THE COURT:  Any questions?

MR. SEGAL:  Yes, Your Honor.


C R O S S  E X A M I N A T I O N  (12:01 p.m.)

BY MR. SEGAL:
Q  Mr. Browning, in regard to the fibers and threads that you have testified to, you did your laboratory work initially, as to those fibers and threads, in what -- in March and April of 1970, when the exhibits were sent to the CID laboratory?
A  They were started, I believe, in February -- around the 20th of February, and continued on, and were completed, I think, around the 20th of March.
Q  And you testified at the military proceedings in 1970, as to all your factual findings in regard to the fiber and thread examinations, did you not?
A  I don't know whether all examinations were included.  I answered all the questions asked.
Q  Well, you were called as a Government witness at the Article 32 proceedings, right?
A  Yes, I was.
Q  And you gave all the information you had, is that right?
A  Well, all the information requested at the Article 32.
Q  Yes, and the same thing as to the wood comparison, with the exception of the splinter that you say you looked at again recently.  You examined the wood in this case back in 1970, also, sometime through February and March of 1970?
A  Well, with the exception of some exhibits which were received after the initial Article 32 hearing.
Q  Did you testify as to the club, though, at the Article 32 proceeding?
A  Yes, I testified concerning the club, but not the physical match with the slats -- the grain and annual growth rings, and so forth.  I had not received that piece of evidenced at that time.
Q  Do you know were that was found, that piece of evidence?
A  No, sir, I do not.
Q  You did testify at the Article 32 proceedings as to your findings in regard to the item that you have described as a club, didn't you?
A  As a club, yes, sir.
Q  And also as to matters of paint comparison which we have touched on this morning -- you also made those examinations, or Mr. Vogenthaler made them under your direction back in 1970, isn't that right?
A  No, sir, I think they were made later on, probably early '71.
Q  Didn't you make some comparisons and observations about paint comparisons?
A  Yes, I examined paint from the club and with Government Exhibit 328.  At that time I had received those exhibits only.  The remaining exhibits came at a later date.
Q  You also testified in 1970 as to whether you thought the paint was the same on the various exhibits, too?
A  Yes.
Q  So that testimony you have given here this morning in regard to the paint comparison on the club and certain other items you gave as questioned by Government counsel in 1970?
A  Yes, on the exhibits I examined at that time.
Q  I guess the one thing you did not do in 1970, is you didn't have all these big charts, did you?
A  No, sir, I didn't.
Q  Have you any idea what they cost?

MR. MURTAGH:  OBJECTION.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  Well, let me ask you this, Mr. Browning, is this all the laboratory investigation that you did in connection with this case in 1970 -- that is, compared fibers and compared wood samples and compared paint comparisons?
A  No, sir, I did all trace evidence examinations.
Q  What other trace evidence did the CID submit to you for examination?
A  They submitted in addition to woods, fibers and paints -- they submitted hairs and waxes.
Q  Waxes?  Now, what was the question that was put to you in regard to waxes that were taken from the MacDonald house?

MR. MURTAGH:  Your Honor, may we approach the bench at this time?

THE COURT:  Yes.


B E N C H  C O N F E R E N C E

MR. MURTAGH:  Your Honor, I believe Mr. Segal is outside the scope of direct examination.  We have no objection if he goes into those matters, but I think he should examine Mr. Browning on direct.

THE COURT:  He has not asked a cross-examination question yet.

MR. MURTAGH:  Well, yes, sir.

THE COURT:  You just, out of an abundance of caution, are coming now to alert me to the fact that he may ask a leading question?

MR. MURTAGH:  No, Your Honor.  I was waiting for Mr. Segal to mention the word "wax" before I knew where he was going.

THE COURT:  What is the problem?  If he asked questions concerning matters not covered in your direct examination, then he is using him as his witness and the rules apply.

MR. MURTAGH:  That is fine, Your Honor.

THE COURT:  That is the way we have been doing all along.  Nothing new about that.

MR. MURTAGH:  Yes, Your Honor.

THE COURT:  Let's go.

(Bench conference terminated.)

BY MR. SEGAL:
Q  Mr. Browning, again, you were asked -- were you not -- to make some comparisons of other matters other than the thread and fibers, wood and paint back in 1970; is that right?
A  Yes; I was.
Q  And you enumerated several of them including wax, I think you said.
A  Yes.
Q  Did you receive a briefing from anyone as to the general circumstances of the crime or general facts of the crime that the lab team was operating with when they brought the evidence back?
A  I'm not quite sure I understand what you mean by "general facts."  I understood the same things that I've heard in this courtroom -- that Dr. MacDonald was attacked by hippies and this evidence was collected -- and I was looking for certain things that would prove or disprove that.
Q  Did anybody tell you why they were interested in seeing whether or not the wax that was found in the house could be traced to any other wax that belonged to the MacDonald family?
A  No; I don't remember being asked that at the time.  I was requested to examine the wax found on, I believe, three locations and see if it matched six candles, I think it was, sent to me from the MacDonald house.
Q  All right, now, first of all, if you could tell us please, where in the MacDonald house were these three unidentified wax samples taken from; do you have anything in your records, sir, that would indicate to us where they came from?
A  Yes; I do.  Let me check.  I have listed D-123, purple bedspread, Kimberly's bedroom; G-131, chair, Kimberly's bedroom; and G-201, coffee table, living room.
Q  So you were given, I understand, wax that was scraped or lifted from them by Mr. Chamberlain; is that right?
A  Yes; Mr. Chamberlain.
Q  And what did Mr. Chamberlain do with the unidentified wax found in the house?  Did he put it in a vial of some sort?
A  No; it was cut out on the -- I remember the chair -- I received a piece of the leather upholstery or the plastic uphostery from the chair with the stain attached and the bedspread still had the wax on it when received in the laboratory.  As I remember, Mr. Laber removed that and gave it to me.
Q  And the wax from the coffee table -- how did you obtain that unidentified wax?
A  Let me check this again.  That was received in a vial.
Q  Received in a vial; and did it have collected by whom?
A  Id doesn't say.  Let's see if there is anything else on that.  I'm sorry the number I was looking at is 211.
Q  Now, 211 is the identifying number for which one of these three samples of wax?
A  It's 201 is the identifying sample of the wax.  From my notes here I just referred to, it was not 201; it was 211.  I don't --
Q  (Interposing) Pardon me.  Just so we have the record clear.  Which of these unidentified samples of wax should be referred to as 211?
A  Neither; 201 is the sample of wax which occurred on the table in the living room.
Q  That's the coffee table in the living room?
A  The coffee table in the living room; in my records of examination here I don't have any record of 201 being examined in this group so, obviously, I got it at a later date.  I have it listed here again as "wax substance Exhibit G-201, wax substance taken from coffee table in living room."
Q  Does that later note indicate to you who collected the wax substance from the living room?
A  No, sir; it doesn't.  In most cases I received evidence with one or two exceptions from Mr. Chamberlain -- the one or two exceptions being one exhibit from Mr. Laber and one or two exhibits from Mr. Ivory.
Q  Based upon those general circumstances, would you conclude that it was Mr. Chamberlain who collected this unidentified wax off the coffee table in the living room?
A  Well, as I said earlier, I really don't know, but this would be a possibility.
Q  Now, you were given, as I understand, a number of wax candles and wax samples that were found in the MacDonald house; were you not?
A  Yes; originally I received six candles.
Q  Now, could you tell us when you received those six candles and who provided those to you?
A  Well, I received those from Mr. Chamberlain.  They were obviously picked up during the initial working at the house.
Q  And they were household candles?
A  Yes; in most cases, household candles.  Shortly later thereafter, I recovered two candles, I believe, in wine bottles, to make a total of eight at that time.
Q  When you say two candles in wine bottles, you mean that somewhere someone had sort of fastened the candle, pushed it into the top of the wine bottle and let it melt down around it a little bit?
A  Yes; it is one of these wine bottles where the material had run down the side and it formed a pattern.
Q  So that, ultimately, you had, I gather, eight different candles taken from the MacDonald house to make a comparison against these three unidentified candles; is that right?
A  At the time of the initial examination; yes.
Q  And as a result of the comparison that you made, were you able to establish that, first of all, the wax that was found on the chair in Kimberly's room, was that wax the same as or similar to the wax that was found elsewhere in the MacDonald house?
A  No; it was not.
Q  It was not.  What about the wax that was found on the bedspread in Kimberly's room?  Was that the same as the known samples of wax taken from the MacDonald house?
A  No; it was not.
Q  What about the wax that was found in the living room?  Was that the same as the known samples of wax in the MacDonald house?
A  No; all three samples differed.
Q  Now, were the three samples -- the three unknowns -- were they identical to each other; that is, did they come from the same single source, a single candle, or some single paraffin source?
A  No; they did not.
Q  How many different types of wax were there in these three different unknowns?
A  Well, wax itself is pretty much the same.  It's very difficult to distinguish, but there were three different types of wax.  One of the unknowns was a multicolored type of wax that physically matched beautifully with the candle in the bottle.
     However, on analysis, I received from fluorescence under ultraviolet light in the unknown that I did not receive in the known, so I eliminated it and said it did not have a common source.  The other two as I remember, I believe one was a pale green color.  I just don't remember the color of the other.
Q  The conclusion was, Mr. Browning, was that the three unknowns were, first of all, unlike the eight known wax samples in the MacDonald house; is that right, first of all?
A  Yes.
Q  And that the three unknowns were not similar to each other; is that also true?
A  This is correct.
Q  Now, later on, after this initial examination of wax, were you not asked to make some further comparisons of these three unknowns with other samples that may have been taken in the MacDonald house?
A  Yes; I received six more candles.  If I remember correctly, three of those were unburned candles or unused candles.  The other three had been used.
Q  And when did you receive the six additional candles?
A  This came the latter part of 1970, I think, or the first of 1971.
Q  And do you know who sent those to you?
A  Yes, they were sent by the CID at Fort Bragg.
Q  And again you were asked to determine whether the three unidentified samples found in the MacDonald house were similar to or the same as the six additional samples the CID sent you?
A  Yes, I was.
Q  Did you make the comparison between the three identified and the six additional candles?
A  Yes, I did.
Q  And what did you conclude?
A  They did not match.
Q  So then as I understand your testimony, you compared 14 different waxes, candles, or other similar paraffin materials, known to come from the MacDonald house, with the three unidentified waxes found in the MacDonald house?
A  Yes.
Q  And that none of these 14 known waxes, candles, or paraffin from the MacDonald house were the same as the three unidentified?
A  This is correct.
Q  Now if I may ask you about a different subject.  Were you also not asked to make some hair comparisons in this case?
A  Yes, I was.
Q  Would you tell us where the unknown hairs came from that you were asked to make some comparison and identification of?
A  Yes.  The unknown hairs came from throughout the area -- for any specifics I would need an exhibit number -- but they came from throughout the house.
Q  Did you receive any hair that was identified to be found on or near the hand of any of the victims that were murdered in this case?
A  Yes, I did.
Q  Would you use the CID number and tell us what hair samples were used in the CID report that you received?
A  What hair numbers?
Q  Yes.  Tell us the number and what person that particular hair was reported to you to have come from, that was found on or about their person?
A  Well, I have 300 numbers here.  Hair was received in a good many of those, so it would be very difficult to go through all of them.  If you have any particular exhibit, I can give you that information.
Q  Did you get a piece of hair sent to you by the CID that they reported was taken from the hand of Mrs. Colette MacDonald?
A  Yes, I have that under Exhibit E-5, I think.  "Debris removed from Mrs. MacDonald's left hand."
Q  Now, did you receive any sample hair taken from either the hand or near the hand of either of the two MacDonald children?
A  I don't believe so; I don't recall.
Q  Now, how many hairs were there in that sample called E-5 taken from Mrs. MacDonald's hand?
A  In E-5, one short medium brown hair, two fine blond, apparently head hairs, bloodstained, and that's it.
Q  While we're talking about hair, it would be correct to say, would it not, Mr. Browning, that human hairs do not have unique individual characteristics the same way as fingerprints have unique individual characteristics?
A  They have unique individual characteristics but not sufficient unique individual characteristics that you can give a specific determination, like fingerprints.
Q  When you say "specific determination," you mean with fingerprints you find a fingerprint and it matches that which comes from a given individual.  You know there is no one else in the world that is going to have that print?
A  That's right.
Q  When it comes to hair, what is the most you can say when you find a sample of hair that you compare with one known to come from a person?
A  Once again, we use the could have opinion.
Q  You could say it generally resembles the hair of a known person; is that right?
A  Well, I never used the term generally.  I would say "grossly similar" or microscopically identical.  In that case, I would give the report that they could have originated from a common source.
Q  But you're not able, from such a gross examination, to make a specific identification of whose hair it actually is as you are looking at it?
A  No, there would have to be many unique abnormalities or something very unique to the two samples to say definitely that one hair originated from the head of a certain individual.
Q  All right, now you described this debris taken from Mrs. MacDonald's left hand, a short medium brown hair; is that right?
A  Yes.
Q  You also described two blond hairs and an adjective and I missed that.  Two what?
A  Two short blond hairs.
Q  Were you asked to ascertain whether those three hairs taken from Mrs. MacDonald were grossly similar to the hairs of any other member of the family?
A  Yes, I believe I ran that portion of the examination.
Q  Of course in order to know whether they were similar to either Mrs. MacDonald's own hair, Kristen's, Kimberly's, or Dr. MacDonald's hair, you would have had to have known samples of the hair of those four other persons, wouldn't you?
A  Yes, you need something for comparison.
Q  And did you, in fact, receive a sample of say, Mrs. MacDonald's hair that was cut from her head or another part of her body in the presence of a CID agent, or some pathologist who could say this is positively from her person?
A  No, I did not.
Q  Did you get a known sample of the hair of Kristen MacDonald, cut in the presence of a CID agent or pathologist who that person could say this definitely came from Kristen's body?
A  Yes, I did.
Q  When did you receive the sample on Kristen MacDonald?
A  Very early in the investigation.
Q  In 1970?
A  Yes, in 1970.
Q  What about the sample of Kimberly's hair.  Did you have a known sample of that?
A  No, I did not.
Q  What about Dr. MacDonald.  Did you have a known sample of his hair?
A  No, I did not.
Q  How did you go about attempting to identify, perhaps, to whose hair the three in Mrs. MacDonald's hand grossly resembled if you didn't have known sources from either Kimberly, Jeffrey or Colette MacDonald?
A  I requested that the CID obtain clothing form the individual's closet, preferably winter clothing, and to package this clothing carefully in plastic bags and send it to me so that I could remove hairs from this clothing.
     The two victims where I did not have the hair, I removed this hair, approximately 30 to 40 strands, examined these individually against each other, and determined that they were alike, and probably were from the victim.
Q  Well, let's back up a little bit, Mr. Browning.  I want to ask you first of all -- we will get back to the rest of that -- how you got samples of their hair when no one bothered to get them directly from the person.
     I gather your answer was you asked the CID to get you hairs from the known clothing of this person; is that correct?
A  Yes, this is correct.
Q  Did the CID, in fact, package the clothing and send it to you, or did they take hairs from other clothing?
A  No, they packaged the clothing and sent the clothing to me.  I removed the hairs myself.
Q  Can you tell us what item of clothing that allegedly belonged to Colette MacDonald was sent to you?
A  From memory this would be very difficult.  I remember, I think, a yellow coat, several lightweight exterior type garments.  From memory nine years ago, I just don't remember which garments belong to which individual.
     At the time I received them, they were all marked in plastic bags.
Q  The markings were put on by a CID agent whom you believe had gone through the MacDonald house at Castle Drive; is that right?
A  That is correct.
Q  Do you know who the CID agent was who collected these clothing samples?
A  No, I don't remember whether Mr. Ivory was still collecting evidence then or not.
Q  Of course, you have no way of knowing, Mr. Browning, as to who confirmed, say, for Mr. Ivory or Mr. Shaw or any one of them, who said, "Yes, that is the coat of Colette MacDonald"?
A  No, I do not.
Q  You don't know whether the clothing of any other female person had been left in the MacDonald house, is that right?
A  That is true.
Q  You were aware -- in fact, there were items that belonged to a woman that had been left in the house such as a hairbrush belonging to Mrs. Kassab?
A  Yes.
Q  So that you were proceeding on the assumption then that the CID agent who collected the clothing in the closet was correct in assuming that that belonged to Colette MacDonald?
A  Well, in this case several garments were collected, and the hair removed from each garment were compared against each other to determine that they were the same; so the overall mathematical possibility that they were from the individual would be extremely high.
Q  Well, you only collected about 30 hairs from about five or six garments, isn't that right?
A  Yes, 30 to 40 from five or six garments.
Q  So that works out to about four or five hairs per garment?
A  True.
Q  And those were the garments not only of Colette but also of the other members of the MacDonald family, too?
A  Well, of Kimberly and Colette.
Q  Now, what about Jeffrey MacDonald; what was the supposed source of the hairs of Jeffrey MacDonald?
A  I think most of Jeffrey MacDonald's clothes had been removed.  I am not sure of this, but evidently there were not many available, because the only item I received was a black sweatshirt.
Q  And again some CID agent at Fort Bragg made the assumption that that belonged to Dr. MacDonald, is that right?
A  Yes.
Q  And did you find some hairs on Dr. MacDonald's -- the clothing purported to be Dr. MacDonald's?
A  There were no human hairs at all.  There were several animal hairs.
Q  Well, let's back up again.  First of all, did you find some hair, Mr. Browning, on the sweatshirt which someone said belonged to Dr. MacDonald?
A  Hairs, yes.
Q  And how many hairs did you recover?
A  As I recall, possibly five or six.
Q  And then you did examine those hairs, and what did you find?
A  They were all animal hairs, apparently a horse or pony.
A  It is possible to distinguish among various fur-type or hair-covered animals, is it not, Mr. Browning?
A  Very simple.
Q  So that, in fact, it was pretty clear when you made the laboratory examination that the hairs on the sweatshirt had come from a small horse such as a pony?
A  Yes, this is very evident under a microscope, but not to the naked eye.
Q  I understand.  Now, did you some time in July or August, in the middle of the Article 32 proceeding, receive a set of hair samples that the CID had collected from Dr. MacDonald?
A  Yes, I think that was in August of 1970.
Q  And you were asked to compare these three samples found in Mrs. MacDonald's hand, in the so-called debris in the left hand, with the samples from Dr. MacDonald, is that right?
A  No, sir.
Q  Did you not make such a comparison?
A  No, sir, I didn't.
Q  Do you know whether anyone did?
A  Yes, I was on a week's vacation at the time, and Mrs. Glisson ran the examination of those particular hairs.
Q  Did you subsequently read Mrs. Glisson's report?
A  Yes, I believe I did.
Q  Did you testify about it before the Grand Jury in part -- you were asked questions about that, in part, for the Grand Jury?
A  This I don't remember.
Q  Well, would I be correct, Mr. Browning, in saying that the conclusion was that the hairs in Mrs. MacDonald's hands did not match the hairs taken from Dr. MacDonald's body?

MR. MURTAGH:  Your Honor, we would OBJECT.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  Do you know what the findings were of Mrs. Glisson's comparison between the hairs taken from the body of Dr. MacDonald and the hairs found in the hand of Mrs. Colette MacDonald?

MR. MURTAGH:  OBJECTION.

THE COURT:  SUSTAINED.

MR. SEGAL:  Your Honor, indulge me for a moment, please.

BY MR. SEGAL:
Q  At the time of this hair comparison, did you and Mrs. Glisson have the same level position at the CID laboratory?
A  Yes, we did.
Q  Was she senior to you in any regard, or were you senior to her in any regard at that time?
A  Well, I was senior slightly in service, but we were in entirely fields[sic] at the time and so there was no seniority related to each other.
Q  Having made the original hair comparisons, were you asked by Mrs. Glisson to look at the report that she had prepared of her comparisons between Dr. MacDonald's hairs and the unknown hairs in Mrs. MacDonald's hand?
A  No, I was not.
Q  Do you recall testifying on October 23, 1974, before the Grand Jury in this case on a number of matters of your examination, Mr. Browning?
A  Yes.
Q  May I refresh your recollection and ask whether you recall a question and answer, or if it is not recalled to you, ask whether you adopt what the stenographer has written down, all right?
A  Yes.
Q  Now, I am referring to page 64 of that transcript, and ask if you can recall being -- having the following question by the foreman of the Grand Jury at line 11:
     "The one that was on Colette MacDonald's body -- and I think you said it was --" and then your answer:
     "I believe this is the hair.  I was on leave.  I took a week's vacation, and was on leave when the hair came in from Captain MacDonald, and so Mrs. Glisson ran this.
     Prior to this time, I had been doing all of the hair work.  Mrs. Glisson compared the main hairs from Captain MacDonald, and this unknown hair.  And I think she said from the point present that what she had to compare that there wasn't enough to identify as being -- I'm sure you have that report -- I'm not even sure exactly what the report did say, but I know she could not say it was Captain MacDonald's hair."  Do you recall making that statement to the Grand Jury?
A  Yes, that sounds familiar.
Q  Now, were you aware that Mrs. Glisson had received samples of hair from 12 different parts of Dr. MacDonald's body?
A  No, but this is routine when we take samples.

MR. MURTAGH:  Your Honor, we would OBJECT to this line of questioning, but we have no objection to Counsel -- we will stipulate to the results of Mrs. Glisson's report.  We just don't think it is proper to examine Mr. Browning on Mrs. Glisson's findings.

MR. SEGAL:  All right, Your Honor, I will accept the Government's suggestion.
     The Government would stipulate then that the findings of Mrs. Glisson's comparisons between the hair in Mrs. MacDonald's hand and the 12 samples taken from Dr. MacDonald were that the hairs were dissimilar.  Do you agree, Mr. Murtagh?

MR. MURTAGH:  Yes, Your Honor, we would agree to that.  We would ask the Court and Counsel if Counsel is willing to stipulate to the later --

MR. SEGAL:  (Interposing) If you want to ask me any more stipulations, why don't you do it in the appropriate fashion -- at the bench?

MR. MURTAGH:  May I approach the bench, Your Honor?

THE COURT:  No, I am going to let you do this there among yourselves; if it is going to be a stipulation, the Court has no concern with it at all.  That is the usual fashion as far as I am concerned.

(Counsel confer.)

MR. SEGAL:  If Your Honor pleases, rather than cause any problem, let me withdraw the last piece of testimony.  We will call Mrs. Glisson as a witness and we will clarify exactly what her report found; all right?

THE COURT:  All right, members of the jury, the testimony of this witness concerning what Mrs. Glisson's report stated has been withdrawn by counsel and he says that he will provide that evidence through some other source.

BY MR. SEGAL:
Q  I would like to move to another topic with you, if I may, Mr. Browning.  Let's address the question of the fiber and thread comparisons that you were asked to make; all right?
A  Yes.
Q  I believe I heard you earlier this morning, when asked to make statements in regard to the various suspect fibers that you received and the blue pajama top that was found on Mrs. MacDonald's body, I believe I heard you say that it was -- that various unidentified fibers were similar and could have originated from a common source; is that your testimony?
A  Yes.
Q  And that is the most that you are willing to say in regard to the comparison you made between the various fibers and the pajamas.
A  Yes; this is right.  Laboratory policy is that whenever you observe two fibers and get no conflicting differences -- no differences whatsoever either chemical or in physical characteristics -- then we can use the report "could have."  We go no farther than that.
Q  There are actually additional tests that could be made in fiber identification beyond the couple that were done by the CID back in 1970?
A  Oh, yes; there are many procedures that can be conducted.
Q  And the more procedures you run, the more certain you can be with regard to the finding that you are making?
A  Well, there is a time when every chemist has to determine that he has sufficient evidence to make the opinion that the two originated from a common source.  Procedures could run on forever.  If there is any question about the analysis and there is adequate sample left then it could be re-examined at any time.
Q  Well, I gather from your testimony, that the assignment, having made the gross comparisons that you did on the fibers, that the proper scientific response is that it is similar and could originate from a common source; that is scientifically accurate; is that correct?
A  Yes; that is true.
Q  Now, I'd like to to take a look -- I thought that's what you intended -- and would like to have you take a look again at one of these Government exhibits -- the one that's marked, Mr. Browning, as G-654 -- and I ask you to take a look at the title of this particular document and if you will read it to us, please?
A  Let me find it first -- G what?
Q  Yeah; this whole document is G-654.  Just -- I asked you -- to read us the title of this document.
A  "Locations of Threads and Yarns Identical to Jeffrey MacDonald's Torn Blue Pajama Top."
Q  Of course, you've told us that you cannot make a statement that it is identical.  You said it was similar to and had some common source; is that right?
A  No; I can say microscopically identical.  My opinion is that it could have originated from a common source.
Q  All right, when you say "microscopically," that means you eyeballed it under a microscope; is that right?
A  Yes.
Q  And you've already conceded that there are other tests that could be made to be a more precise and complete examination; is that right?
A  Yes; in addition, I conducted chemical tests, solubility tests, which were also identical.
Q  But you have stated here, I think, probably on 18 occasions this morning that your testimony was that they were similar and could have been from a common source.
A  Yes; they were identical and --

MR. SEGAL:  (Interposing) Excuse me.  All I asked, Your Honor -- I asked the question and would be glad to let the witness explain, but I think we are entitled to the direct answer first before the explanation.

THE COURT:  He said "Yes."  Then he was going to explain.  Go ahead.

MR. SEGAL:  Would this chart not be more accurate if --

MR. MURTAGH:  OBJECTION.

THE COURT:  Wait a minute.  Do you want to explain the last answer?  Let's give him a chance if he does.

MR. SEGAL:  I'm sorry.  Go ahead.

THE WITNESS:  Yes; the fibers in each of these exhibits were microscopically identical and chemically identical as to composition.  Therefore, I feel that they could have originated from a common source.

BY MR. SEGAL:
Q  I'm not quarreling with you but I am asking you -- should we not then have the exhibit here say what you have said, which is to strike out the word "identical" and say location of threads and yarns which are similar to and can have a common source with Dr. MacDonald's torn blue top?

MR. MURTAGH:  OBJECTION.

THE COURT:  SUSTAINED.

MR. SEGAL:  If Your Honor pleases, I would like to be heard on the matter.

THE COURT:  Well, I'll hear you but, as to whether this witness would retitle some exhibit that has been offered in evidence without objection, I think it is completely irrelevant.  Do you want to be heard any more?

MR. SEGAL:  Yes, Your Honor.

THE COURT:  Come up.


B E N C H  C O N F E R E N C E

THE COURT:  Do you question whether or not the exhibit ought to be recharacterized or be retitled?

MR. SEGAL:  Yes, sir; because I think it's misleading.

THE COURT:  I think that's a matter of argument, and I am not going to let you ask that question.

MR. SEGAL:  Well, if Your Honor pleases, I agree with you that it is argumentative.  That is why I objected before that the headings of this thing are not factual.  These are argumentative by the Government.  I don't understand why the Government should be allowed to put what the witness has not said on this board.
     Their statement as to what they think this is, is not evidence.  The most that he will say is that it is similar and could be from a similar source.  Either we take the title off entirely or we correct it, Your Honor, but it cannot be allowed as evidence.
     It is not supported by any evidence in the case.  It is unfair to the Defendant.

MR. MURTAGH:  Your Honor, may I respond to that?

THE COURT:  Yes.

MR. MURTAGH:  Your Honor, I believe the witness has testified on numerous occasions with respect to the threads and fibers that they were identical in all observable microscopic characteristics.  I think we are into a semantic argument here.
     I had him explain his jargon initially.  I don't have any problem about having Mr. Segal put the question to him -- in your opinion, is "identical" and the term "similar"; are they synonymous for the sake of your testimony?  I think this is much ado about nothing, Your Honor.

THE COURT:  Who gets to go last?

MR. SEGAL:  Your Honor, what the witness has said is only -- he qualified it -- microscopically identical and chemically identical.

THE COURT:  That is what he said.  I put them both down right there.

MR. SEGAL:  Yes, Your Honor; I accept that as a correct characterization of his tesimony but not what the Government has here.  It is misleading.  He has conceded on cross that there are other tests.

(Bench conference terminated.)


THE COURT:  Members of the jury, you will be concerned with the evidence in the case and I instruct you now that if a particular exhibit has a title which you find at variance with that which the evicence shows, then disregard the title.
     We were talking about the evidence in the case.  Now it is time to go to lunch.  We will come back at 2:15.  Don't talk about the case.

(The proceeding was recessed at 12:42 p.m., to reconvene at 2:15 p.m., this same day.)


F U R T H E R  P R O C E E D I N G S  2:15 p.m.

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

(Whereupon, DILLARD O.  BROWNING the witness on the stand at the time of recess, resumed the stand and testified further as follows:)

THE COURT:  Good afternoon, ladies and gentlemen.
     Further questions of this witness?

MR. BLACKBURN:  Your Honor, before we begin, if we could approach the bench?


B E N C H  C O N F E R E N C E

MR. BLACKBURN:  What we seek, Your Honor, is an additional clarification of a ruling you made several days ago, to make sure we all are together on it.
     You remember Tuesday afternoon when we were discussing the various Motions of the parties, one of them dealt with the sexual misconduct of the Defendant.  As I recall, what you said was that you thought if it was close in proximity to time, that it might be relevant to show motive.
     And I remember mentioning to you --

THE COURT:  (Interposing) That particular connection, I believe I said we would let it all hang out.

MR. BLACKBURN:  Now, with respect, Your Honor, to after the killings, I remember mentioning to you that there was one there.  What I wanted to know, sir, let me just make an offer of proof and tell you, because I want to be sure before we do it.
     The evidence that we have is that while the Article 32 proceeding was taking place, that he did in fact have a relationship.  This relationship began, our evidence will disclose, in mid to late August of 1970, while he was still under house arrest.  It went on for a period of time.
     The reason I mention this to you is to make sure before we put someone up that that was in compliance with your ruling.

MR. SMITH:  Can I be heard on it just briefly?

THE COURT:  Yes.

MR. SMITH:  Our position on that would be this: that would be approximately six months after his wife died.  We are presuming now that he is innocent.  So, his wife had been killed six months previously.  He is now an unmarried man.  It is the worst time of his life.  If there has ever been a time when a man would be down and out, he would be.
     A woman comes into his life; he has sex with her.  We would contend it has absolutely no relationship whatsoever on the question of whether he was happily married or whether he would take the life of his wife and children.
     In other words, it is our position that sexual events six months after his wife died, at a time when he was low, down and out, are not probative in any way upon the question that is before this jury.

MR. BLACKBURN:  Well, of course, our position is that he had these behaviors before.  We are introducing it to show that there were similar acts of motive and that he was not particularly happy at home.
     There has already been a little bit of testimony on that.  The idea of a girl after the fact is to show callousness toward the murders of his family.

THE COURT:  The only thing that disturbs me about it is the time element.

MR. BLACKBURN:  You know, when I raised it the other day, I knew it was during the Article 32.  I did not know the exact time.

THE COURT:  Somehow or another, I was under the impression at that time that that followed close on the heels of the murders.  It struck me as being -- in fact, in my own mind I used the same adjective that you just did, that it was callous and showing an indifference to the situation.

MR. BLACKBURN:  I think the Article 32 ended -- I think the decision came out in October.  The only purpose I have in mentioning it --

THE COURT:  (Interposing) What were the dates of the Article 32?

MR. SEGAL:  Testimony begain in July of 1970.  Testimony closed early in September, '70.  And the decision came in October 13th of '70.

THE COURT:  Early June?

MR. SEGAL:  June 13th, as a matter of fact.

THE COURT:  And ended?

MR. SEGAL:  Closed testimony on the 8th or 9th of September, 1970.
     The final report -- Colonel Rock's report -- was filed October 13th of '70.  And the charges were dismissed October 27th of '70.

THE COURT:  All right.  What is the date?

MR. BLACKBURN:  I believe it is mid to late August.

MR. ANDERSON:  Early August.

THE COURT:  He says early August.

MR. ANDERSON:  I thought he said early August.

MR. BLACKBURN:  Somewhere around mid August, I think.  That is what my information shows.

THE COURT:  Mid August would be six months.  Early August would be five.

MR. BLACKBURN:  I do not know how long it lasted, although I know it was more than one time.  It was over a period of several days or weeks.

THE COURT:  You have a witness, haven't you?

MR. BLACKBURN:  Yes, sir.  He called her the day he was cleared, I think.  He told her he had in fact been cleared.  So I assume it lasted until that time.

MR. SMITH:  Let he who could have resisted that cast the first stone, Judge.

THE COURT:  Just generally, what were the circumstances?

MR. BLACKBURN:  Apparently MacDonald was staying outside during the lunch hour.  She walked by.  She worked there.  She was 25.  She met and talked to him, maybe bought some sandwiches for lunch.
     After three or four days, she met him.  They had lunch inside.  One thing led to another, and they had sexual relations.  Then she said -- I said, "How often after that did you have them?"  She said, "As frequently as possible."
     That went on for a period of time.  One time when Kassab was supposed to be there for the weekend -- Freddie -- he, of course, suggested she not come around, which she did not do.  And he never told -- to her knowledge, at least -- he never told Kassab.
     She would say that she was the initiator.  Now, at the same time she will also say that he was ready, willing and able.  But we don't know who initiated the sexual relations.  But she certainly intiated the meetings.

MR. SMITH:  She told me she would testify on cross-examination that she was the aggressor in the relationship, and that he was down and out and very sad, and that she felt like she provided some companionship for him at a bad time in his life, and that he provided her some companionship at a bad time in her life.  She was separated.

MR. SEGAL:  She was in the process of getting divorced, Your Honor.

MR. SMITH:  And now has a very good reputation, I understand, and a good job.

MR. SEGAL:  It can be very humiliating.

MR. BLACKBURN:  What we wanted to do because of the nature of this thing was to bring all the facts on that we knew to you to let you know because once you put it out, you can't take it back.
     And we don't have to do that before the break.  We can wait.

THE COURT:  Well, let me think about that a little.  I think this is a close question.  I am more concerned about the lapse of time and the circumstances.
     If you don't have to do that right now, let's stay away from that and I will think about it a little more.

MR. BLACKBURN:  Let me also tell you where we are going this afternoon, because it will become very tedious, I suspect.
     After this witness is through, there is another live witness.  Then we are going to seek to put in certain portions of transcripts of various statements that the Defendant has made.  Grand Jury, the Article 32 from April 6 of 1970, along with the Esquire Magazine article.
     What we propose to do is to read those, if that is agreeable to the jury at that time, and put them into evidence.  I think that will actually in the long term, while it will take an hour or an hour and a half, it will shorten what we were going to do, which was playing tapes and that sort of thing.
     That is where we are going this afternoon.

THE COURT:  I have got so many Motions I can't keep count of them.  What has been filed today that needs to be heard or ruled upon?

MR. SEGAL:  The sooner the better, Your Honor.  But tomorrow morning will be satisfactory to give you a chance to review what we have said here.
     And if the Government wants to respond, I think all of it could be held -- the jury view does concern me.  But I would rather, Your Honor, read our position.

THE COURT:  The instructions about the jury view?

MR. SEGAL:  Yes, Your Honor.

THE COURT:  How about this Paul Stombaugh?

MR. BLACKBURN:  Well, on that, Your Honor, I haven't read it in a long time.  We are going to put Stombaugh on either later this afternoon or tomorrow morning.
     As I read that Motion, I think it goes -- that is towards the end of his testimony.  His testimony will be lengthy.  So, I don't think we would have to reach that before tomorrow morning.  We will not reach that portion on Stombaugh this afternoon.

THE COURT:  Well, I was going to say we could defer opening tomorrow until 10:00 o'clock.  We could come at 9:00.

MR. BLACKBURN:  That might be good, Your Honor.

(Bench conference terminated.)


C R O S S - E X A M I N A T I O N  2:28 p.m.  (resumed)

BY MR. SEGAL:
Q  Mr. Browning, right before the luncheon recess, I started to talk with you about the various fibers that you had examined in connection with the blue pajama top?
A  Yes.
Q  I wanted to ask you, Mr. Browning, can you tell whether the various fibers and threads that you have been testifying about this morning came from the blue pajama top or from the pajama bottoms related to that top?
A  No; I cannot.
Q  You have no way of telling whether they came from the bottom or the top?
A  No.
Q  Based upon your examinations and tests of the various fibers and threads -- again, talking about the blue pajama top -- can you tell whether the blue fibers became separated from the garment -- top or bottom -- on a particular date, such as February 14th, 15th, 16th, or 17th?
A  No; I cannot.
Q  There is no way based upon the work that you did to establish those dates with any particularity?
A  No.
Q  Now, on the piece of wood up there -- I think that is 306 that you have in front of you?
A  Yes.
Q  You did tell us you found one or more blue fibers; is that correct?
A  Yes; that is correct.
Q  Can you tell me, please, first of all, how many fibers did you find altogether on E-306?
A  When I received the fibers, they were actually in a vial.  My information was that they had been removed from Exhibit E-306.
Q  I assume you counted the number of fibers?
A  Yes, I did.  The number of fibers present in the vial were two.
Q  There were two in the vial?
A  Yes, that's two purple cotton fibers.
Q  Could you tell from the markings on the vial or any other labeling where on 306 those fibers had been located?
A  No, I don't believe so.
Q  Is there any possibility that you might be able to examine it and determine that or are you fairly confident there is no marking at all that gives the location of 306 where the blue fibers were located?
A  To the best of my knowledge, there were no markings on the vial indicating exactly where they originated.
Q  Do you recall, or can you tell from your records, who it was from the CID agents at the laboratory who collected the blue fibers off of the club?
A  Yes, I believe it was Larry Flinn.
Q  He was a laboratory --
A  (Interposing) chemist.
Q  Chemist at the time.  Were you also asked at some point to examine a fiber that was taken from a pair of eyeglasses in the living room, I think it was identified as E-33 on your list?
A  No, I was not.
Q  Do you know whether there was such an exhibit as E-33 that represented a fiber found on the glasses?
A  I don't have an E-33 listed in my notes.
Q  Which would mean what, Mr. Browning?
A  It would mean that I did not receive such an exhibit.
Q  And you are unable to tell us from your notes who else would have worked on E-33?
A  No.
Q  There were, in fact, a great many other fibers and threads that were collected and submitted to you for examination, were there not?
A  Yes, there were.
Q  Can you give us an approximation of the total number of other fibers and threads that you looked at and examined other than the one you told us about this morning?
A  I would say there were, oh, probably another hundred or more of the blue-purple cotton threads and the other combination, cotton-polyester yarn.  I have no way of knowing exactly how many, but they were in many, many exhibits.
Q  Would I be correct in recalling that at another time you described that there were, in your words, "quite a few other fibers" that were turned in to you by the CID as having been collected at the MacDonald house?
A  Yes, this is true.
Q  As a matter of fact, you were never able ascertain the source of these many other fibers; as to where they came from; is that also correct?

MR. MURTAGH:  OBJECTION.

THE COURT:  OVERRULED.

THE WITNESS:  I made no effort to ascertain where fibers came from, where there was no known for a comparison.  This would be a waste of time of no value.  On objects that I had available to me, such as the multi-colored rugs from the bedroom and certain yarns found in the various locations in the house, if I had these as a known, then I compared the unknowns with these.
     There were many single fibers or loose fibers from which I had no controls to compare with it.  These I did not compare.
Q  When you say that there was no control, in other words, as far as you could tell from the work of the CID investigators on the lab team, they weren't able to show you a garment or other textile product from the house that looked similar to these other fibers that were submitted to you?

MR. MURTAGH:  OBJECTION.

THE COURT:  OVERRULED.

THE WITNESS:  The CID -- that is not their function, they did not do that.  From my observation, the materials presented to the laboratory, I did not find anything that looked like this fiber, for instance, would probably originate from one of these other exhibits.  So in that case, I did not analyze.

BY MR. SEGAL:
Q  Again, I'm not clear on that, Mr. Browning.  What I am trying to find out is, is this the problem that you didn't know of the existence of any garment, or product, fiber, or thread in the MacDonald house to compare with these other unidentified fibers and threads?
A  I'm not sure I understand.  I wasn't at the MacDonald house, so I did not know every garment or every piece of clothing that was in the MacDonald house.  I did have some photographs and I did have physical evidence that I could look at and observe whether or not this fiber that I had under the microscope could have originated from that particular garment or item.
Q  When you say that particular garment or item, you mean the control, the group that you knew it had come from?
A  Yes.
Q  And the persons who gave you the group of controls, that is textile matters which you knew came from the MacDonald house, they were selected by the CID investigators on the lab team; is that right?
A  Yes, all exhibits were sent in by the lab team and the investigators at the scene.
Q  You were never able to establish whether or not there were other garments or textile manufactured products in the MacDonald household that could explain the source of these many unidentified fibers and threads?
A  I did not visit the scene; no.
Q  For all you know, some or all of those fibers and threads could have belonged to outside persons not connected with the MacDonald family; isn't that correct?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  I will SUSTAIN that.

BY MR. SEGAL:
Q  Do you have any way of knowing whether or not these various additional fibers and threads -- the ones you described as "quite a few" -- came from matters that belonged to the MacDonald family or matters that belonged to others than people who lived at 544 Castle Drive?
A  No, I have no way of telling that.
Q  Isn't the reason why you are unable to say that is because it would have required several hundred additional hours to compare these many additional fibers and threads to the garments that were still left and hanging in the MacDonald house?
A  Well, that was not the reason it was not done.  The reason was I had no controls to do it with.
Q  You were aware, of course, based upon photographs that the CID had taken, that not every garment and not every piece of textile fabric in the MacDonald house had been sent back to the laboratory to control; you knew that, didn't you?
A  Yes, I knew that.
Q  Of course, if somebody had gone back to collect additional items, you would have had additional controls to contrast with the unidentified fibers and threads; wouldn't that also be correct?
A  Yes, that would be correct.
Q  And that would have certainly, I am sure, taken quite a few hours to do that?
A  Yes.
Q  Isn't that the reason why there was no effort made to collect the other clothing and textile matters -- that it would take substantial additional time?
A  No, I don't know this.

MR. SEGAL:  Your Honor, indulge me for a second, please.

(Pause.)

BY MR. SEGAL:
Q  Now if I may, Mr. Browning, I wanted to return briefly to the subject of hair, if that is all right with you?  Were you not asked to examine an unidentified hair that was retrieved from the bathroom of the MacDonald house?
A  Yes, I was.
Q  Did you make an attempt to compare that hair from the bathroom with the so-called "known samples" of the MacDonald family?
A  To insure we are talking about the same hair, is this the one in the bathroom sink that was covered with a tar or a foreign substance?
Q  Well, was there in fact such a hair as you described?
A  Yes, there was.
Q  Does it have a number, so we could perhaps -- if you know it offhand?  Either the CID number or the Government number?
A  Yes, I have that listed as E-50, which is the CID laboratory number.  "Hair and debris removed from sink in hall bathroom."
Q  Were you able to establish whether that particular hair came from one of the so-called knowns in the MacDonald family?
A  My notes read briefly, "Vial contains one long human head hair, similar to the head hair of Mrs. MacDonald; two short, broken pieces, grossly similar to Mrs. MacDonald; one short hair broken in two places that is grossly similar to the head hair of Kimberly; and one short hair present, unidentified, that is covered with a black, tarry-like substance.
     Several of these hairs contain blood stains."
     My examination of that hair covered with the gross tarry substance was that I cleaned it with Xylene, and after cleaning it was in such ruptured and broken condition that I didn't use it for any further comparisons.  I did not identify it as being from any member of the house.
Q  Was there also an additional hair found in that area which had gray roots?
A  Not in that sink.  I did find a hair with a gray root, or some hairs with a gray root, I believe, in a hairbrush.
Q  I am not interested in that.  We know you have identified that.

MR. MURTAGH:  OBJECTION.  I don't believe the witness has.

MR. SEGAL:  Oh, all right.

BY MR. SEGAL:
Q  Whose hair did you find in Mildred Kassab's hairbrush?
A  Whose hair?
Q  Yes.
A  Mildred Kassab's.
Q  Gray at the bottom and color on the top, right?
A  Yes.
Q  Will you tell us what color it is, Mr. Browning?  No, don't do that.  Let's get back to the important things.

MR. MURTAGH:  OBJECTION to comments of counsel, Your Honor.

THE COURT:  Yes, don't consider that, members of the jury.

BY MR. SEGAL:
Q  I was interested in something you said, Mr. Browning, in response to a question by Government's counsel when they asked you had you ever seen another pajama top that was identical in all characteristics to that blue pajama top you have there, do you remember?
A  Yes, I remember.
Q  What search did you make to find whether there were other pajama tops which were similar or identical to that?
A  Well, no specific search.  I have not seen any in my observation of pajama tops, but I have never made a scientific study of that.
Q  Well, in other words, then, your answer was, no, you had never seen one identical to it, but you really had not made a systematic or a scientific search to find any others, is that right?
A  Yes, I think this would be right.

MR. SEGAL:  I have nothing further, thank you, Mr. Browning.

THE COURT:  Redirect?

MR. MURTAGH:  Yes, Your Honor, a few questions.


R E D I R E C T  E X A M I N A T I O N  (2:44 p.m.)

BY MR. MURTAGH:
Q  Now, Mr. Browning, with respect to wax, which you were asked about on cross-examination, if you know, sir, was any wax collected from the area of the steps leading to the living room submitted to you for examination?
A  No, it was not.
Q  Okay, with respect to the wax that was submitted, that is, from the coffee table and the arm of the chair in Kimberly's room, and I believe one of the bedspreads in Kimberly's room, could you tell us, sir, if you have an opinion satsifactory to yourself, whether this was new wax or old wax or what?
A  Well, the wax present was more or less brittle and flaky.  I haven't made a study of this either; however --

MR. SEGAL:  (Interposing) I OBJECT, Your Honor.  We have no scientific basis for that.  If you does we would be glad to hear him.

THE COURT:  Well, you are assuming that he doesn't have any scientific basis for it.  Let's let him finish the answer.

MR. SEGAL:  Your Honor, I thought I heard him say he has not made a study, but I only wanted to find out whether Mr. Murtagh wants to establish whether he has a basis; otherwise I don't know whether it helps or not.

THE COURT:  Were you going to comment?

THE WITNESS:  Yes, sir.

THE COURT:  Well, say it.

THE WITNESS:  I continued to work with the wax submitted, and the wax melted fresh remained soft and pliable for several weeks.  This seemed to be brittle and dry, which would indicate to me that it was at least several weeks old when I received it.

BY MR. MURTAGH:
Q  Mr. Browning, let me ask you a question.  You have testified, I believe, on cross-examination that some 14 candles were submitted to you for comparison purposes, is that correct?
     What conclusion, if any, would you draw from the fact that 14 candles were found in the MacDonald household?

MR. SMITH:  OBJECTION.

MR. MURTAGH:  I will withdraw the question, Your Honor.

BY MR. MURTAGH:
Q  Now, Mr. Browning, I believe you testified about the hair comparisons that you did, is that correct, sir?
A  Yes.
Q  And is it correct that you personally never compared known head -- or any hair exemplars from the Defendant?
A  No, I did not -- well, not in relation to other hairs.  I actually examined the hairs from the Defendant, yes.
Q  But you didn't compare them to the questioned hair?
A  No.
Q  Okay, I believe the reason for that --

MR. SEGAL:  (Interposing) No, no.  Let's have the witness testify, Mr. Murtagh.  OBJECTION.

THE COURT:  Is this with respect to some new evidence brought out by Defendant about hairs?  Did you bring out anything about hairs?

MR. MURTAGH:  No, sir.

THE COURT:  Well, I will let you ask the question.

MR. SEGAL:  I wasn't objecting to the subject matter; I was objecting to his suggesting the answer.

THE COURT:  I know.  You were suggesting the form of question.

MR. SEGAL:  Yes, sir.

THE COURT:  But, you see this is new matter that you brought out.

MR. SEGAL:  Oh, I agree to that, Your Honor.  I am just saying that he ought to let the witness testify instead of giving his idea of what the testimony is.

THE COURT:  Well, that is so, but this is sort of in the nature of cross-examination this second.

MR. SEGAL:  That was his witness, Your Honor.

THE COURT:  I thought I ruled that he was your witness as to these new subjects.  He says that he is just bringing out his cross-examination as to those subjects.

MR. SEGAL:  That doesn't give him the right to cross-examine --

THE COURT:  (Interposing) All right, this is over.  Ask your question.

BY MR. MURTAGH:
Q  Mr. Browning, you testified with respect to Exhibit E-5, which I believe was the hair or the debris removed from the left hand of Mrs. MacDonald, do you recall that, sir?
A  Yes, I did.
Q  And other than hair, what debris or matter, if any, did you find in that exhibit?
A  I need to refer to my notes.
Q  Would you please do that, sir?
A  My synopsis is, "Vial contains one green single strand nylon green fiber identical to the green fiber of the multi-colored rug in the north bedroom.  It is heavily bood stained.
     One short, medium-brown hair; two fine blond human head hairs, blood stained; and one wooden splinter similar to the wood of the club," meaning Exhibit 306.
Q  Okay, now, Mr. Browning, I believe -- let me ask you if we are talking about the same exhibit.  With respect to the green single-strand fiber, let me show you what has been marked and I believe received in evidence as Government 358, and I believe this is also referred to as D-37NB, multi-colored throw rug from the north bedroom?
A  D-37?
Q  NB.  My question, sir, is the throw rug the throw rug from which you compared the green fiber found in Mrs. MacDonald's hand?
A  Yes, it is.
Q  Okay, and your testimony was?
A  That the fiber in her hand was identical to the fiber present or similar to that rug.
Q  Okay, and did I also understand you to testify that you also found a piece of wood in that vial?
A  Yes, I did.
Q  And what did you compare that with?
A  That was compared with Exhibit 306 and found to be similar in all characteristics.
Q  Would you hold up Government 306, please?

(Witness complies.)

Q  Now, Mr. Browning, you used the term "similar," and let me ask you in regard to your testimony of a moment ago, and also in regard to the chart on which you were cross-examined -- you used the term "similar," what does that mean to you in the jargon of the laboratory?
A  Well, in the jargon of the laboratory we mean that it is identical under observation under the microscope, and if any chemical tests are run, it is identical chemically.  If there are any variations, then we do not say that these two items are similar.

BY MR. MURTAGH:
Q  Would it be correct to say that if you found any dissimilar characteristics, you would not use the term "similar"?

MR. SEGAL:  That is OBJECTED to.  That is not what he said, Your Honor.  He said as to two aspects.

THE COURT:  I will SUSTAIN your objection but on another basis.  I understood that is what he had just said in effect.

MR. MURTAGH:  Yes, sir.

THE COURT:  So, you are asking him twice, and I will sustain it for that reason, although it is not unheard of that we do things in duplicate in this and all other courts.

BY MR. MURTAGH:
Q  Mr. Browning, did you find any dissimilar characteristics with respect to the splinter found in Mrs. MacDonald's hand -- that is dissimilar to Exhibit 306?
A  No, I did not.
Q  Now, Mr. Browning, did you ever examine Dr. MacDonald's pajama bottoms?
A  No; I did not.
Q  Do you have any idea what they were composed of?
A  No.
Q  Well, then, do you have any basis for stating an opinion as to whether the threads and yarns could have come from the pajama bottoms?
A  No.
Q  Mr. Browning, I believe on direct examination and also on cross you testified that you did not examine every particle of matter in every vial; is that correct?
A  That is correct.
Q  If you know, sir, were subsequent examinations of some of the vials which you examined performed by the FBI Laboratory?
A  Yes; I have heard this.
Q  Mr. Browning, with regard to your Exhibit E-50 which on cross-examination I understood you to testify concerning a ruptured hair; is that correct?
A  Yes; that's correct.
Q  Do you have an opinion, sir, as to what could have ruptured that hair?
A  Well, my opinion was that it received a severe blow.  Hair is very tough and very hard to rupture or even break.  It requires a very hard blow to rupture a hair.
Q  Okay, Mr. Browning, let me show you again Government 306, a piece of wood, and let me ask you, sir, if you have any opinion satisfactory to yourself as to whether a blow with an instrument such as Government 306 could have ruptured the hair which you examined?
A  Yes; I would say so.
Q  As a result of that hair being ruptured, sir, was it suitable for comparison purposes?
A  No; it was not.
Q  Did I understand you to testify that there were additional hairs in that sink?
A  Yes; there were.
Q  And did you compare those with your known exemplars?
A  Yes; I did.
Q  And by "known," I mean the hairs removed from the clothing.
A  Yes.
Q  And what individuals, if you know, sir, did that clothing belong to?
A  I thought I stated that, but I'll have to check again.  There are so many exhibits, it is difficult to remember everything.

THE COURT:  You said a yellow coat that belonged to Colette was represented to you.

THE WITNESS:  Yes; I had one long human head hair identical to the head hair of Mrs. MacDonald, two short brown pieces that are similar to Mrs. MacDonald's hair, one short hair broken in two places that is grossly similar to the head hair of Kimberly MacDonald, and then the one short hair that was covered with the tarry-like substance.

BY MR. MURTAGH:
Q  Okay, Mr. Browning, is it correct then that you found hair which was similar to the known exemplars that you had for Mrs. MacDonald, although they were not from her head, which was also damaged?
A  Yes.
Q  And was that true of the hair which you compared to the known exemplars of Kimberly MacDonald, although not to her head?
A  That is correct.

MR. MURTAGH:  No further questions, Your Honor.

MR. SEGAL:  One or two matters, Your Honor.

THE COURT:  Yes, sir.


R E C R O S S - E X A M I N A T I O N  2:55 p.m.

BY MR. SEGAL:
Q  Mr. Browning, could you tell us on what date you did the examinations on the wax?
A  The initial examination of the first batch received was probably around the 6th of March.
Q  That's about three weeks after the murders in this case; is that right?
A  Yes.

MR. SEGAL:  I have nothing further of this witness.

THE COURT:  Call your next one.