For researchers of the Jeffrey MacDonald case: The murders of Colette, Kimberley and Kristen MacDonald


August 14, 1979
John Thornton at trial

(Whereupon, DR. JOHN I. THORNTON was called as a witness, duly sworn, and testified as follows:)

D I R E C T  E X A M I N A T I O N  12:38 p.m.

Q  Dr. Thornton, what is your professional occupation, please?
A  I am employed as an Associate Professor of Forensic Science at the University of California at Berkeley and occasionally as a consultant in matters of physical evidence.
Q  In one paragraph, can you tell us what forensic science is?
A  "Forensic" comes from the Latin word meaning "of the forum," and the forum in Rome was a place where debates were held. It was also a courthouse, so forensic science is science that is exercised on behalf of the court, on behalf of law, and is intended to assist in the reconciliation of various matters -- both criminal and civil.
Q  What is your education, Dr. Thornton, in regard to the area of forensic science?
A  I have a Bachelor of Science in Criminalistics from the University of California at Berkeley, a Master of Criminology also in Forensic Science -- Criminalistics -- from the University of California, and a Doctor of Criminology degree but in Forensic Science from the University of California.
Q  And your current position at the University of California is teaching in what area?
A  In forensic science.
Q  And what courses do you teach currently?
A  Currently, I teach both graduate and undergraduate courses dealing with a wide range of physical evidence; the analysis of such things as hairs and fibers and blood stains, bullets, soil, glass, safe insulation, paint. I think I mentioned hair. I teach a class in the microscope -- how to use a microscope, which is both for the benefit of the forensic science students and also for students in other disciplines such as zoology, botany, even forestry on some occasions.
Q  Have you taught other courses in the past different from the ones you have described in the area of forensic sciences?
A  Yes, I taught criminal investigation at the University of California. This was when there was a criminology department. That has been terminated; the forensic science program has been continued, but the general criminology program at Berkeley does not exist anymore and I don't teach criminal investigation at this time.
Q  Now, do you have any practical experience in the field of criminalistics and forensic science work?
A  Yes.
Q  Would you describe what that is, please?
A  I worked in a crime laboratory for a period of nine years to the day, as a criminalist, as a supervising criminalist and as a laboratory director. This was in the crime laboratory of the county sheriff's department of Contra Costa County, California.
Q  And the Contra Costa County is a large suburban county near San Francisco, is that correct?
A  That is correct. At the time that I worked there it had a population of about 600,000.
Q  And as you are working in various positions in that crime laboratory, including the director, were you involved in the processing of evidence that related to homicidal cases?
A  Yes.
Q  In how many homicidal cases did you deal with the physical evidence?
A  I could just estimate. I would say probably about -- between 150 and 200 cases. Not all of those involved crime scene processing. I think I probably participated in the scene processing of about 100 homicide cases.
Q  And I assume that you did in many other cases besides homicide cases you just enumerated for us?
A  Yes.
Q  Now, are you a member of any professional organizations that deal with the area of forensic sciences and criminalistics?
A  Yes.
Q  And what are the principal organizations that you belong to?
A  The American Academy of Forensic Sciences, the California Association of Criminalists, and the Criminalist Management Association. There is one other -- it is a foreign organization headquartered in Belgium. The name of it is the Academe Internationale de Medicine Legal.
Q  Have you held any positions of responsibility in any professional organization in the area of forensics, forensic science or criminalistics?
A  Well, I think so, yes.
Q  Would you describe just briefly some of those positions that you held in professional organizations?
A  I am currently the secretary of the criminalistic section of the American Academy of Forensic Sciences. I have held the position of president of the California Association of Criminalists. I was editorial secretary of that organization for three years. I have done some committee work. Do you want me to go into that?
A  No, I think that won't be necessary. Have you ever received any honors or recognition from your professional colleagues in the field of criminalistics?
A  I received a criminalistic section award of the American Academy of Forensic Sciences this year.
Q  And what is that award and for what circumstances is it awarded?
A  Well, I am not quite sure what the thinking was that went into my receiving it. It has been given twice.
Q  The award has been given twice in the history of the Association?
A  Yes.
Q  And what is the award as far as you know, as far as the citation that went with it -- what was it intended to recognize as far as your work and your service in this area?
A  My sense is that it was for two things: publications and research in the area of forensic science; and the other thing was my involvement in a nationwide crime laboratory proficiency testing project that went on for a period of years. Well, it is still continuing but under a slightly different --
Q  (Interposing) What is your involvement in this lack of crime laboratory evaluation program? I am not interested in the specifics; just what is the program that you are involved in and what is it supposed to do?
A  For a period of, I believe, three years, the Law Enforcement Assistance Administration of the Department of Justice funded a Nationwide Crime Laboratory Proficiency Testing Project.
     This was the first effort along the lines of a nationwide proficiency testing project; and blind samples were distributed gratis to any laboratory that wished to participate. The laboratories would analyze the samples, report the results. The results were then tabulated and published again to the participating laboratories.
     It is a means of quality assurance within the crime laboratory. I participated on the project advisory committee during this period of time. The project is still in force, but now it is on a subscription basis and it is no longer funded by the Law Enforcement Assistance Administration.
Q  You said that also one of the other aspects of your recognition for the honor which you received from the American Academy was for your publications. Have you written any books in the area of criminalistics or forensic science? When I say "written," or edited by -- I mean that term broadly, then you have explained what you have done?
A  Books, you're asking?
Q  Yes, please.
A  I've edited the second edition of Kirk's Crime Investigation. This is a posthumous edition. I have written another book on the Forensic Characterization of Soil Evidence, which is currently in press.
Q  Let me ask you about these books that you did -- the second edition of the Kirk book in crime investigation. What subject matter did you cover in the revision of that particular book?
A  This deals with a wide variety of physical evidence forms, most of which -- or many of which I have referred to a few moments ago: characterization, identification of such things as hair and fibers, soil, glass, paint.
     Practically anything can be physical evidence at one time or another, and the text is written in order to provide the reader with a comprehensive understanding of the nature of physical evidence and protocols of analysis.
Q  When you say "the reader," was this book aimed for the general public or aimed for any specific scientific audience?
A  It was aimed for the scientific audience principally. It would have some appeal to a police officer. My involvement in the book -- in my involvement with the book I was really writing for the scientist in the laboratory as opposed to the police officer.
Q  Are you currently engaged in preparing a third edition of that book?
A  Yes, the third edition is a completely new -- it is not an edited or abridged or amended text. It is entirely -- will be entirely rewritten.
Q  Now, aside from the two books that you have mentioned that you have contributed to, have you contributed chapters or portions of other books that have been published which deal with forensic sciences and criminalistics?
A  Yes.
Q  Just tell us how many chapters or such portions of chapters have you contributed to such books?
A  I think about three chapters of books. That includes one or two that are currently in press and have not appeared as of this moment, but have been accepted for publication.
Q  How many other publications have you had -- that is, articles that you have written in scholarly publications and scholarly journals -- again in the area of forensic sciences and criminalistics?
A  About 70.
Q  Just give us a spectrum, if you will, of the topics that you have covered in the 70 articles that you have written for scholarly journals?
A  They cover a wide range of physical evidence types. The last paper which appeared was in analytical chemistry. It dealt with the photolitic degradation of LSD and lysergic acid and diethylamide. A previous paper dealt with the use of a personality inventory test for the selection of crime scene technicians. There are several statistical papers. There are papers on soil. There are several on blood. One is on seminal fluid. One or two are on photography of the Luminol reaction which is a test for blood at crime scenes. Well, I could look at the list if you wish.
Q  I think we need nothing further.

MR. SEGAL:  At this time, I would like to have marked as Defendant's exhibit a copy of the curriculum vitae of Dr. Thornton.

THE COURT:  All right, sir.

MR. SEGAL:  I tender it to the Government for examination, if Your Honor please. (Defendant's Exhibit 65 was marked for identification.)

MR. SEGAL:  If Your Honor pleases, I offer as an expert witness on behalf of the defense in the area of criminalistics and forensic sciences, Dr. Thornton, for any cross-examination as desired by the Government.

THE COURT:  Very well.

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


B E N C H  C O N F E R E N C E

MR. MURTAGH:  Your Honor, we believe Dr. Thornton is going to testify about fabric impressions and blood stains and blood splatters and things of that nature. I don't believe he has been qualified as an expert in that regard.

THE COURT:  I thought that the qualification was very general. I don't know what he can do, but heretofore, for your people, you have established their expertise in various fields about which -- to tell me a man is an expert in criminalistics would not tell me very much about his ability to analyze a blood stain or anything.

MR. SEGAL:  I will expand it.

THE COURT:  You might want to go into that a little further.

MR. SEGAL:  Certainly, Your Honor.

(Bench conference terminated.)

Q  With the Court's indulgence, I would like to ask you several additional questions about your background and your experience in forensic science and criminalistics. Have you done work in the area -- teaching and writing in the area of blood typing, blood identification, and blood stains?
A  Yes.
Q  Could you tell us some of the work you have done and some of the background you have in those areas?
A  Some of my early work dealt with the examination of blood stains. May I refer to a list?
Q  Yes. Would you like to have a copy of the vitae or do you have one there?
A  I have a copy.
Q  Certainly. Why don't you refer to that and tell us the appropriate matters?
A  In 1963, there was a publication entitled "The Demonstration of the Rhesus Antibody." This is the RH antibody in dried blood stains. In 1964, there was a publication entitled "The Individualization of Dry Blood Samples by Means of the Demonstration of the Syphilis Antibody." In 1972, there was a paper, "The Detection of the Rhesus Factors in Bloodstains."
Q  Let me ask you -- I am sorry.
A  In 1974, the 2nd Edition of Kirk's Crime Investigation was published. That covered fabric impressions.
Q  I am not up to the subject of fabric impressions. I wanted to ask about the blood.
A  I beg your pardon.
Q  Did Kirk's edition, this 2nd Edition, or the current 3rd Edition, include writing by you in the area of blood stain, typing identification, and comparisons?
A  Oh, yes.
Q  Have you taught -- well, before you taught, in the nine years that you worked in the Contra Costa Criminalistic Laboratory and including your director, did you do work in blood typing, blood identification, and comparison?
A  Yes, I did.
Q  Would you estimate the number of cases in which you wer asked to make either comparison or identification?
A  Well, over 100. I don't know.
Q  Are you talking about blood identification alone?
A  Yes, talking about cases -- not examinations.
Q  No, no, number of cases. I assume the examinations would be greater than just the number of cases.
A  Yes.
Q  Have you taught in the area of blood typing, identification, stain identification, and comparisons?
A  Yes.
Q  And your teaching has been both at the undergraduate and graduate level of the university?
A  Yes. We no longer have an undergraduate program. We have a graduate program at the present time; although, we do have undergraduate courses.
Q  In the crime laboratory evaluation program which you were selected to supervise, does that involve supervision of the work done by laboratories and the results found by laboratories in the area of blood stain identification and comparison?
A  Yes, but I don't want to be deceptive on this point -- you said "supervise." I was one of a group of individuals that advised the staff of the Forensic Science Foundation in how to conduct this testing. In the area of blood, however, I did make up one of the blood unknowns that was sent around to several hundred different laboratories.
Q  Now, in the area that we have heard described here in this trial here --

THE COURT:  (Interposing) Are you going to another area?

MR. SEGAL:  Yes, Your Honor.

THE COURT:  Well, we are going to lunch. We will take our lunch recess, members of the jury. You may retire now and we will take our recess in just a moment. We will come back today at 2:30. Don't talk about the case.

(Jury exits at 12:58 p.m.)

THE COURT:  All right, now, recess us, please, until 2:30.

(The proceeding was recessed at 12:59 p.m., to reconvene at 2:30 p.m., this same day.)

F U R T H E R  P R O C E E D I N G S  2:30 p.m.

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

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

MR. SEGAL:  Yes, Your Honor.

(Whereupon, DR. JOHN I. THORNTON, the witness on the stand at the time of recess, resumed the stand and testified further as follows:)

D I R E C T  E X A M I N A T I O N  2:31 p.m. (resumed)

Q  Before the luncheon recess, Dr. Thornton, you were talking about your experience, training, and background in the field of blood. I wanted to ask you whether you had done any scholarly writing in the area of blood as related to forensic matters, blood stain identification, typing, and I believe you were telling us about a number of articles you had written on that subject?
A  Yes.
Q  Approximately how many articles have you written in regard to blood typing, identification, and staining?
A  I don't know. I read the titles of three. I would have to count them up. Some number between three and six, perhaps.
Q  Have you ever testified in Court in criminal matters in regard to blood identification, typing, and stain matters?
A  Sure.
Q  When you testified, was your testimony received in the capacity of an expert witness?
A  Yes.
Q  On how many occasions would you say that you have testified as an expert in regard to blood matters?
A  I really don't know -- something in excess of 50, I am certain.
Q  Have you ever had occasion to do identification of stains to determine whether they were caused by urine or not?
A  Yes.
Q  Have you done work in the laboratory for identification of urine and urine stains?
A  Yes.
Q  Have you ever testified in Court in regard to your opinions and conclusions about whether a given stain was produced by urine or not?
A  Yes. Also, I recall one journal article that I co-authored on the identification of urine stains.
Q  In addition to the journal article, you were saying that you have been received as an expert witness by Courts in criminal matters on the subject of urine identification?
A  Yes.
Q  Let me move to a different area of your background, please, if I may, an area which has been identified here in Court previously as it has been called fabric damage and fabric impressions. Do you have any experience in regard to doing analysis and identification of fabric damage and fabric impressions?
A  Yes. I have worked on a considerable number of cases in which fabric impression or damage to garments or upholstery comprised a portion of the physical evidence.
Q  When you say "a considerable number," could you give us an approximation of how many cases that might be on which you have worked on such fabric damage and fabric impressions?
A  Oh, several dozen.
Q  I am sorry?
A  Several dozen. I really don't know. I would think it would be some number between 50 and 100, perhaps more.
Q  As a conservative figure, you have worked in at least 50 cases in which the issue of fabric damage and fabric impression were involved in criminal matters?
A  I think 50 would be a conservative number; yes.
Q  Have you been called upon to testify in Court in criminal matters in regard to fabric damage and fabric impressions?
A  Yes.
Q  And has your testimony been received in the capacity of an expert witness on those subjects in Court?
A  Yes.
Q  Could you give us an estimate of the number of cases in which you have testified about fabric damage and fabric impressions as an expert?
A  I would say less than ten.
Q  Have you had occasion to do any scholarly writing in regard to subject matter of fabric damage and impressions?
A  Not really. The Kirk textbook that I edited, I adjusted that chapter somewhat, but the majority of that chapter was written by Dr. Kirk, and I did not have a heavy hand in the writing of that chapter.
Q  You were familiar with the contents of the material contained in Dr. Kirk's chapter which you edited on fabric damage and fabric impressions?
A  Yes.
Q  Lastly, I want to ask you: do you testify as an expert witness only on behalf of Defendants in criminal cases?
A  No.
Q  Have you testified on behalf of the prosecution?
A  Yes.
Q  I am talking about after leaving the Sheriff's Department in California -- have you testified as a prosecution witness in criminal cases?
A  Yes.
Q  When was the most recent occasion when you testified on behalf of the prosecution in such a case?
A  It was the end of May of this year. That was for the District Attorney for the city and county of San Francisco.

MR. SEGAL:  I have no further questions. If Your Honor pleases, at this time, I would tender again Dr. Thornton as an expert in the area of forensic science and criminalistics with the particular emphasis on blood identification, typing, and staining, fabric impressions, fabric damage, identifications of urine.

THE COURT:  Very well.

MR. SEGAL:  Does the Government have any questions at this time?

(Mr. Murtagh nods negatively.)

Q  Dr. Thornton, I would like to direct your attention first of all, if I may, to certain testimony -- but before I get to that, let me ask in this case; have you read the testimony of Paul Stombaugh of the FBI who testified earlier in this case?
A  Yes, I have.
Q  Have you read the testimony of Ms. Shirley Green, a techician from the FBI, who also testified in this case?
A  I read the testimony of Ms. Green when she testified the first day. I heard her testimony the following morning.
Q  And you have heard the testimony?
A  Yes.
Q  Have you had occasion to read the reports that Mr. Stombaugh prepared in connection with his work that he testified to in this case?
A  I have read several reports that he had written.
Q  All right, now, I want to first of all direct your attention to one of the subject matters that was testified to in regard to fabric tears. I want to ask you a question concerning a statement made by Mr. Stombaugh at page 4074 of his testimony given here before this Court on August 7th, 1979. At that time, Mr. Stombaugh was testifying with respect to puncture holes in the blue pajama top in this case and made the following statement, which I will seek your opinion. "In examining the puncture holes, we noted that there was no tearing. The holes were clean, and it was my conclusion that the holes had been placed into this garment while the garment itself was in a stationary position."
     First of all, have you read that testimony also?
A  Yes, I have.
Q  Do you agree with that testimony?
A  No, I don't believe it is true.
Q  What is the basis of your statement that you do not believe that testimony is true -- that the holes in that garment were made or placed in it while the garment was in a stationary position?

MR. MURTAGH:  I would OBJECT unless there is a proper foundation other than just reading the testimony.

THE COURT:  Well, the witness says he disagrees with a conclusion offered and testified to by another expert witness. I suppose the question is, "How come he does?" I will let him say. I would remind counsel and the jury that it is for the jury to determine whether or not testimony of any witness is true. It is not the province of any witness to say that other testimony is true or untrue.

Q  Let me put it to you in an additional fashion. Do you agree or disagree with the opinion expressed by Mr. Stombaugh that the puncture holes in the blue pajama top were made while the garment itself was in a stationary position?
A  I disagree that that is the only possible conclusion.
Q  Let me ask you: have you ever examined the blue pajama top we have talked about?
A  Yes.
Q  What is the basis, if any, for your statement that you disagree with the statement made by Mr. Stombaugh as I have read it to you?
A  I conducted a series of experiments in which I put a target in motion and stabbed at it with an ice pick. I then examined the holes resulting from those punctures and found that the holes were circular in appearance despite the fact that the target was in motion.
Q  Let me back up if I can for a second. I neglected to ask you one thing about this statement that Mr. Stombaugh made. Are there any authoritative textbooks or articles or treatises which you know of which support the opinion to be made on the basis that Mr. Stombaugh made his that this garment had to be stationary to have the puncture holes made in the fashion they were made?
A  Not to my knowledge. I suppose that there could exist something in the literature that discusses this topic, but not to my knowledge.
Q  You are not aware of any authority, textbook, or treatise which discusses or supports such a conclusion made without experimentation or demonstration?
A  No.
Q  Now, before I get back to the basis of your opinion, did you examine the holes that were made in the blue pajama top in some fashion?
A  Yes.
Q  How did you conduct your examination?
A  With the aid of a seven "x" or seven-times magnifying glass.
Q  Did you do any other examination before you devised the test you described -- and I'll come back to that test very shortly?
A  Not to my knowledge.
Q  In your opinion, based upon your own background, education, knowledge, training, and experience in the field of criminalistics, is it possible to have arrived or is there a scientific basis for Mr. Stombaugh to have arrived at the conclusion he did without conducting some experiments in regard to tearing or puncturing the fabric?



Q  What was the experiment that you designed or prepared in order to test the thesis Mr. Stombaugh offered that the blue garment had to be in a stationary position in order to have the holes that it did?
A  Well, to answer that question, it would assist me to be able to show a slide which illustrates the experimental configuration that I used in this series of experiments.

MR. SEGAL:  All right, with Your Honor's permission, may we show the slide that Dr. Thornton has prepared?

THE COURT:  It is all right with me.

MR. MURTAGH:  Your Honor, I think we should approach the bench on this. I don't know what slides he is talking about.

THE COURT:  That's what I meant when I said it was all right with me. I was not sure it would be with you.

MR. MURTAGH:  What garment are we talking about?

THE COURT:  Tell him what you are supposed to do. Come on up.

B E N C H  C O N F E R E N C E

MR. SEGAL:  Dr. Thornton will describe a series of experiments he did. He will tell what type of fabric he did it with. He will tell under what the conditions are, and he will show how it was done by the illustration in the slides.
     I represent to the Court that the fabric used was of the same composition -- that is, a 65-35 cotton and polyester mix. He also did it not only on fabric; he did it on pajama tops in varying conditions. And he will describe all the bases from which he arrived at his opinion.

THE COURT:  Well, I believe just a few days ago you were up here saying that you couldn't do an experiment because you couldn't duplicate the conditions. Now, one of the conditions that has been in evidence here which you have not told me he duplicated -- he may have done it -- how many times had that fabric been washed.

MR. SEGAL:  He will be able to testify about fabrics that were both washed and unwashed as to the effect. He will describe fully the experiment that he did and what the basis was. Then the jury can draw a conclusion of whether it's valid. I will say this, Your Honor: it's a hell of a lot better foundation for his experiment than Mr. Stombaugh's bare-faced conclusion that this is so. He never testified to any demonstration.

THE COURT:  Well, I didn't think that was any experiment at all. I thought that was just simply an attempt to reproduce what could have happened at the accident scene --

MR. SEGAL:  (Interposing) The section I have read, Your Honor --

THE COURT:  -- but this is an entirely different proposition. Now, this is an experiment. I don't know whether you have any -- maybe it is academic. Maybe you don't have any objection to it.

MR. MURTAGH:  We do have an objection, Your Honor.

THE COURT:  On what grounds?

MR. MURTAGH:  One, we think that pajama top is virtually unique because of its age and general condition. I don't think you can duplicate that. The pajama top that I saw Dr. Thornton mark the holes in was a brand new, pale blue pajama top, and I would object to that. That's a different condition altogether. Also, I don't know how you can duplicate -- you know, put a fabric in motion. I think, Your Honor, that is an insufficient basis for the experiment and I think we ought to see these slides out of the presence of the jury, if at all.

THE COURT:  Well, now, I might let you do that. I might let you take a look at them, but I am inclined to let them go on through. Everything that you told me so far is just something that you can show up by cross-examination, if you are able to do it -- that the age of the fabric and the way it was moving, all that stuff, and you might submit an instruction on it, if you want to, about the experimental evidence.
     I guess there is one -- at least among all this wealth of legal talent, someone can devise one.

MR. SMITH:  I say I can work on it. I will work up an instruction that Mr. Murtagh will like very much.

THE COURT:  Somebody asked me with a completely straight face within the last 24 hours if it was possible for a Federal judge to direct a verdict of guilty.

MR. BLACKBURN:  We would go along with that.

THE COURT:  So, I said I don't know, but if the motion is made, I will rule on it.

(Bench conference terminated.)

THE COURT:  All right, let the matinee begin.

MR. SEGAL:  It would help if you can come down from the witness stand and operate the slide projector.

Q  All right, now, will you describe the slide, please, and the portion of the experiment that you say you conducted that you say this slide depicts?

THE COURT:  If he stands where he is now, part of the jury is going to see only his back.

THE WITNESS:  Is this all right?

Q  All right, and if you would go ahead, please, and I will just ask you to keep your voice up, Dr. Thornton?
A  This slide illustrates the basic arrangment of the experiment that I conducted. I took a piece of 3/4-inch plywood, put a screw eye on either end, and affixed a piece of clothesline to the screw eye on either end.
     By whipping the loose end of the cord, where you see the hand in the upper left-hand corner of the slide, the sled can be placed into motion to and fro. On the sled is affixed a target. Over the target is placed a piece of cloth which is 65 percent polyester and 35 percent cotton.
     When the sled is in motion -- well, I'll back up just a moment. There was a particular reason for designing the experiment in this manner, and that is that the motion that I can produce by this is a close approximation of a harmonic oscillation.
     The significance of that is that it facilitates any computations that I might want to do concerning the velocity of the sled and the target. When the sled was in motion, approximating the maximum motion of a human, the thrashing around, say, on the floor or some other hard surface, I made a number of tests of punctures into the target material.
     Then I removed the fabric and examined it under the microscope, looking for the configuration of the margins of the puncture. The second slide illustrates essentially a circular puncture mark in the fabric.
     This is a photo macrograph on the polyester-cotton fabric with a circular impression.
Q  When this particular hole was made, what was happening to the target in which this piece of cloth was fashioned?
A  This sled was in motion. The second slide illustrates what might be expected from the elongated tear. This is not a type of hole that I see with an ice pick puncture into the target when the sled is in motion.
Q  Now you described the hole that you saw on the immediately preceding slide. How was that hole made, Dr. Thornton? What kind of instrument was used to create the puncture?
A  Basic ice pick.
Q  Now the hole that is on this third slide, that is now on the screen, how was this hole made?
A  This is made by an ice pick also, that was made with unsupported fabric and gripping both the top and bottom of the ice pick and dragging it through the fabric.
Q  Are these the only slides you want to show us at this moment?
A  Yes.
Q  I would like to ask you some more questions, but if you could put the light on, please.


Q  Could you explain somewhat -- could you explain in somewhat more detail what the significance was of the experiment in which you had the piece of fabric mounted on the target head that was going back and forth.
     You mentioned that you were trying to replicate the speed of a person. Can you tell us how it was done and on what basis you arrived at the conclusion that you were, in fact, replicating such motion?
A  That motion is an approximation of the maximum distance that a person could move, other than striding. We are not talking about walking or running, we are talking about motion of the torso. I set the sled into motion and varied the speed until I felt that a human body could move no faster than the sled in motion. It is only an approximation, but I think that it is a realistic approximation.
Q  This particular fabric that we are seeing here, was that a new or used fabric?
A  That was a new fabric.
Q  And the combination of fibers in that fabric was again, what, 65 polyester, 35 percent cotton?
A  Yes, actually the yarns are a blend of the cotton and the polyester.
Q  Did you do only one experiment to be shown here or did you do more than one experiment?
A  No, I did quite a number of experiments.
Q  How many did you do altogether?
A  Approximately 50.
Q  I'm sorry?
A  Approximately 50.
Q  Fifty?
A  Yes, I stopped counting after that.
Q  Now, are all these experiments precisely the same, using the same type of fabric, the same -- whether new or used fabric?
A  It was all new fabric.
Q  All new fabric?
A  Yes.
Q  Did you attempt any experiment to determine what would happen if you used a fabric of the same combination -- 65/35 -- that was not new?
A  No.
Q  Was there any reason why you chose not to do that?
A  Not particularly; no.
Q  Did you conduct any experiments in regard to this matter using a not-new fabric?
A  No.
Q  Is there any reason for you to believe, based upon your experiments and your knowledge, that the results would be different in terms of the shape of the hole that you would get if the fabric were new or had been washed a number of times?
A  I think an older fabric would be more susceptible to the elongating tears. I wouldn't be able to quantify that, in my opinion, in that regard.
Q  What, if anything was different in any of the 50 experiments? Did you find the same shape holes and sizes, different shape holes and sizes, or what did you do? Why did you do 50 tests, really, is what I am asking for?
A  I don't know why I did 50. I say 50 is the minimum number. The tests are very easily conducted. I can make 50 punctures in a very short period of time. I felt that that was certainly an adequate and representative sample; that if there was variation in the appearance of the puncture marks, it certainly would have appeared in 50 repetitions.
Q  How many puncture marks did you make altogether in these 50 demonstrations? How many total puncture marks did you make in the fabric?
A  Over 50.
Q  Is that the number of holes or the number of times you did the demonstration? I'm not clear on that?
A  It is the number of holes.
Q  The number of holes; I see. Were there any significant differences in the type of hole that you made when you were doing these punctures of the fabric and as the fabric was being moved back and forth on the sled?
A  No.
Q  What did the holes all appear to you, as you examined them microscopically?
A  They were all circular.
Q  Did you compare the way they looked to the way the holes looked on the blue pajama top introduced in this case?
A  Well, yes; in an abstract manner. Not in a direct comparison; no.

MR. MURTAGH:  Your Honor, I would MOVE TO STRIKE that answer.


Q  When you say in an abstract manner, as opposed to direct comparison, what do you mean, Dr. Thornton?
A  I knew that the holes in the pajama top were circular in their appearance.
Q  You know that how -- just to be clear?
A  From the report of Mr. Stombaugh, in part.
Q  I beg your pardon?
A  In part.
Q  What other part led you to the conclusion about what the holes looked like in the blue pajama tops?
A  My own observation of the pajama tops.
Q  You looked at those holes yourself?
A  Yes.
Q  Then you compared, but not at the same time, you say, the holes that you made in the pajama top, the fabric you have shown us here as a demonstration?
A  That is correct.
Q  Again, did you find any significant difference in the holes that were made in the piece of fabric moving, as you showed it, as in contrast with the holes shown in the fabric that is known as the blue pajama top in this case?
A  No, I did not. I might mention that I also conducted one additonal series of bloodstained fabric and again, I observed the same results: that the holes -- even with the target in motion -- were circular imprints.
Q  Now, tell us about the second series of tests you did. What was the matter with these bloodstains. Why did you introduce bloodstains in the test and what was the effect of having done that?
A  The significance was not clear to me and it still isn't, but it was another variable that I thought that I should consider in the experimental design.
Q  Would it be fair to say that since you had no way of knowing in advance whether the fabric was bloodstained, which could change the shape of the hole, you decided to test out that question?
A  That is what I meant; yes.
Q  All right. I suppose I'm dumb enough not to know what you are doing, if I can say it that way. Let me put it to you this way. How many tests did you do using bloodstained fabrics?
A  That was included in the 50.
Q  And how did you create the bloodstained fabric? What did you use as the substance in that area?
A  Blood.
Q  Human blood?
A  Yes.
Q  You then repeated the same process of moving the fabric, which was then bloodstained, back and forth in attempting to puncture it with the ice pick?
A  Yes.
Q  Was there any significant difference in the shape and the size of the holes when the fabric was bloodstained as opposed to when it was dry?
A  No.
Q  Were you assisted in conducting any of these experiments or did you do them all by yourself?
A  I was assisted.
Q  Could you tell us how you were assisted and who assisted you, please?
A  Well, I needed someone to whip the end of the sled. I had people assisting me, tying down the fabric onto the target, and things of that nature. It seems to be there was another part of your question, but I have forgotten it.
Q  No, I wanted to know whether you had the assistance of other persons or you were trying to do this all -- one and the same time -- by yourself.
A  No, I had assistance.
Q  All right, now, were you able to ascertain -- were you able to determine in your mind to your own satisfaction, based upon your knowledge, training, and experience apparently why there was no tearing or significant tearing of the fabric even when it was in motion, when punctured by an ice pick?
A  I think I know why; yes.
Q  Can you tell us what conclusion you arrived at and how you arrived at that conclusion?
A  Yes, I have a chart that would aid me in the explanation.
Q  Let me show you a diagram that has been marked as Defendant 66 for identification.

(Defendant Exhibit No. 66 was marked for identification.)

Q  And if I may, I will place it on an easel here in front of the jury; and if you would, Dr. Thornton, explain to us how this diagram can illustrate or does illustrate the conclusions you arrived at about the tearing or non-tearing of moving fabric?
A  Well, an ice pick, whether it is used for ice picking or anything else picking, is really a one-dimensional cutting tool. That is -- the point is the cutting edge.
     The shaft is not a very efficient cutting edge. When I set the target in motion and stab into it with the ice pick and then observe circular puncture holes, I think the explanation for it is along the lines of the following: that this diagram will aid the interpretation of that.
Q  If it would help, you may come down from the witness stand to use that, Dr. Thornton.
A  On the upper left-hand corner we have just a representation of a layer of fabric over a layer of tissue; but it is not intended to be an anatomical diagram of it, but conveys what I think are the operational factors that are involved.
     In stabbing into this target with an ice pick, there is a circular hole made in the fabric and a circular hole made in the tissue. Then, as the target is moved relative to the ice pick, there is a great deal of resistance to tearing the ice pick shaft through the tissue.
     I think at that point the fabric is of subordinate concern to what's going on here than is the tissue. As the target is placed in motion to the ice pick, the easiest direction of travel is back out the original entry hole, so it slides out.
     Now, that can happen if the tissue doesn't back to the form, which I think is entirely plausible. At the termination, when the ice pick is removed out the original entry hole, through that, with the circular impression in the tissue and a circular hole within the fabric.
Q  Yes, you may take that back if you like. Now, Dr. Thornton, based upon your knowledge, training, education, and experience, do you believe it is possible to form a scientifically valid opinion about whether these puncture holes could have been placed in this garment while statiionary or not stationary without conducting a scientifically responsible test?



Q  Dr. Thornton, based upon your knowledge, training, information, and experience, do you believe that the demonstration that you conducted in regard to placing holes in the fabric was done in accord with accepted scientific principles, particularly in the area of forensic science?



Q  You may answer.
A  I believe it was.
Q  Dr. Thorton, in regard to the demonstration just shown us in regard to the forces and how you arrive at the conclusion of why the holes are circular even though the fabric is moving, do you believe that that demonstration is made consistent with accepted principles for a scientific demonstration as you know it in the area of forensic sciences?
A  I believe so.
Q  Now, let me ask you, if I may, about a second matter. Did you have occasion to examine the bedsheet that was found in the master bedroom, the top bedsheet?
A  Yes, I did.
Q  Let me ask you whether you recall hearing the testimony of Mr. Stombaugh in regard to the fabric impressions he said that he observed on that particular bedsheet?
A  I have read his testimony, yes.
Q  I am talking about, of course, in this regard, the sheet that has been identified previously as Government Exhibit 103. Let me hand it up to you because we have some reference to that, and I want to ask you, if I may, a series of questions.

(Witness complies.)

A  Yes, I recognize this item.
Q  Now, I would like to direct your attention to the area on that item. If you'd like, you may display it on the table. But I'd like to direct your attention to the area on the item which was identified by Mr. Stombaugh with the letter "F."
A  I am not sure that I understand. You want me to illustrate the area on the sheet?
A  Can we put that up on the table, please?


MR. SEGAL:  Your Honor, we are ready to proceed if we may.

THE COURT:  Proceed.

Q  Dr. Thornton, you have the display there with the sheet -- the top bedsheet. In Area "A" --
A  (Interposing) I am sorry. "A"?
Q  I beg your pardon. In Area "F." Mr. Stombaugh stated that he found an impression which he concluded conformed to the left sleeve of Colette MacDonald's pajama top. Do you agree with that conclusion by Mr. Stombaugh?
A  Yes, I do.
Q  Is there anything unique about that impression?
A  No.
Q  Based upon the available evidence you have, you have no reason to disagree that that could have been created by the pajama top of Colette MacDonald?
A  I agree.
Q  Now, I ask you to look at the area marked "E" on the pajama top, would you please identify that? That is an area which has been referred to by Mr. Stombaugh as a shoulder impression. Let me see if I can find you the section of his testimony.

MR. MURTAGH:  Your Honor, I don't believe that is what Mr. Stombaugh said.

MR. SEGAL:  I am going to read exactly what his words were, Your Honor.

Q  Refer to page 4140 of the testimony. He was asked the question about Area "E."
     "Area 'E' is the appearance of a bare left shoulder and the bottom of it has the appearance of a torn left cuff of a pajama top, the trailing out portion here."
     Dealing first of all with the statement that Area "E" has the appearance of a bare left shoulder, do you agree or disagree with that conclusion?
A  I disagree.
Q  What is the basis of your own opinion in this regard?
A  I am unable to replicate an impression that has the appearance of "E" on that item by using a shoulder, neck, or clavicle region of a human being. I can replicate it to some extent by folding the fabric over an area of bloody cloth.
Q  Let me go back over what you just told us. First of all, is it your opinion that it is not in any reasonable fashion a bare -- it is not an impression made by a bare left shoulder as far as you can ascertain?
A  That is correct. I don't think there is any credible possibility that it could be a bare left shoulder.

MR. MURTAGH:  OBJECTION to that, Your Honor.

THE COURT:  I will strike the word "credible." Don't consider that.

Q  Do you find evidence that it is inconsistent with that Area "E" having been made by a bare left shoulder?
A  Yes.
Q  Would you tell us what is the evidence first of all that you find inconsistent with the bare left shoulder, and if necessary you may certainly illustrate by pointing to the pajama top -- I beg your pardon -- the bedsheet top?
A  Actually, I would have to approach it from a slightly different standpoint.
Q  Please do, then.
A  I made a series of test impressions with blood on fabric to attempt to determine how consistent the impression "E" is with test impressions. I find that it is inconsistent. I do have a slide to illustrate that. The second aspect of this particular impression "E" is that the arcing lines of blood can be mimicked by simply folding the fabric over an area of cloth that has been previously soaked in blood. When the blood is still fluid, if the cloth is folded over, an impresssion which is similar in many regards can be obtained.
Q  When you say that that mark as "E" can be mimicked, what exactly do you mean by that?
A  Well, I can show you a photograph of a test impression that looks a great deal more like "E" than a test impression of a shoulder and clavicle and neck region.
Q  All right, and will you describe for us how you conducted that experiment when you show the slide?
A  Yes.
Q  All right, how many slides do you have, Dr. Thornton?
A  Seven.

MR. SEGAL:  With Your Honor's permission, we will have the second part of the double feature.

THE WITNESS:  May I clarify my answer?

MR. SEGAL:  Yes, sir.

THE WITNESS:  I have a total of seven slides that illustrate the various aspects of the bloody test impressions and not all of which are directed at impression "E." Some are directed at impressions "C" and "D."

Q  All right, let us receive all of those photographs now and describe how they were arrived at and then we will talk about "C" and "D" thereafter. Will you describe what we have here on the first slide that we are showing, Dr. Thornton?
A  These slides are a series that are representative of a more extensive series of experimentation that illustrate the most salient features and what are, in my mind, the most important considerations in this area of inquiry.
     The first slide is a photograph of two hand impressions made in blood in which the blood was rather heavily deposited on the hand. There is a considerable amount of blood on my hand as I made these impressions -- these prints.
     The second slide illustrates from right to left a serial diminuation in the amount of blood. In this series, my hand was soaked in blood. The first impression on the far right is the heaviest impression -- a heavy deposit of blood. The middle impression is with my hand picked up from the heavy impression and placed on the page to the left and creating the second impression.
     The third impression is still a lighter amount of blood. The significance of this is that in a heavier impression of blood such as we see on the right and which we also saw in the previous slide, if you look at the center of the impressions or center of the print where the fingers are all represented --
Q  (Interposing) May I point out for the jury -- if you will indicate where it should be -- you are referring to these areas?
A  Yes. A very heavy deposit of blood -- we found a rather consistent deposition of blood. There is not a gradient between the periphery and the outside of the impression in the center portion. As the amount of blood is diminished -- what we consistently see is a lighter impression right in the center of the finger pats.
Q  You are referring to the middle hand of these three hands?
A  That is right. In the middle, there is a small amount of blood -- a lesser amount of blood in the center than along the sides. I think that is probably the result of the pressure being greatest at the center of the finger pats and expressing the blood out to either side. Again, we see a continuation of this in the lightest print which is on the far left. In a very light deposit, we see distinct impressions of the friction ridges which are on the surface of the palm and fingers.
Q  When you say "friction ridges," could you describe briefly what you are referring to?
A  Friction ridges or capillary ridges or thermal ridges are the anatomical features that are responsible for a person having unique fingerprints.
Q  This is the fourth slide that we have here. What does that contain?
A  One possibility that I considered was that certain of the impressions on the evidence sheet -- where there is some testimony that they are bloody hand impressions -- I gave some consideration to the possibility that these were, in fact, drips of blood or spots of blood in which a hand had been put down on top of the blood stain after the blood stain had been deposited. In other words, the hand itself was not bloody, but the hand was put down on a blood stain. This is an area where a finger has been placed -- actually, several fingers and a portion of the palm has been placed on the glass stain where the blood was deposited on this side of the palm on the fabric. The next slide is where the blood was deposited on the far side of the fabric.
Q  Could we just go back to that last slide for one second, Dr. Thornton?
A  I can't. The reverse does not work.
Q  Again, this slide that we now have on the screen -- is that the one where the blood is on one side and an impression from a hand was placed on this fabric from the other side?
A  That's right.
Q  Now, may I ask, how much of a hand was applied to a piece of fabric. I don't have a scale to tell me what is the size of this fabric, for instance, that we are dealing with?
A  This cloth here is about 9 by 9 inches, and approximately -- well, all of three fingers, perhaps a portion of the little finger was pressed down on this bloody spot; so the bloody spot there is about five inches in diameter.
Q  All right. Would you go on now with the next slide and tell us what it represents?
A  This is representative of the type of impression that you encounter when you soak -- "soak" probably is not the best word -- when you paint blood on to the shoulder area and neck area and clavicle area of a human being, and then hold the piece of fabric up to that area, as if you were cuddling a pillow.
Q  Well, let me ask you, does this represent the result that was obtained after blood was put on a human shoulder and the fabric pressed up against the shoulder and the fabric pressed up against it?
Q  Yes.
Q  And may I ask first of all whose shoulder is used here?
A  This is Linda Waxhall's (phonetic) shoulder.
Q  Is that the laboratory assistant to yourself?
A  Yes.
Q  And what was used as the material to replicate blood?
A  That is blood.
Q  That is human blood there?
A  Yes. I made another series with poster paint, but the blood, I think, is a more realistic material to use.
Q  All right.
A  The last slide is an area where blood has been deposited in the center and then the fabric has been folded over that blood spot several times. Up at the top of the slide and over to the right we see some areas that possess the general appearance of what has been designated as Impression E on the top bedsheet.
Q  Am I pointing to the area that you are referring to?
A  Yes.
Q  Now, how would those two areas that I just pointed to -- how did they come to be? What was the process -- was there a shoulder or clavicle or part of the human body that produced those lines or smears?
A  No, no. This was made by folding the top of that piece of cloth down over that bloody impression -- the light bloody impression over -- through the center of the fabric, and then removing the cloth -- unfolding it.
Q  I want to ask you some more questions on that last slide. Could we have the lights back on now, please?
     Dr. Thornton, based upon your own knowledge, information, experience, and background, I would like to ask you as to whether you have an opinion as to whether an impression such as the one Mr. Stombaugh has said he thought was a bare left shoulder and that you said you do not agree -- whether an impression like that could have come into existence on this particular blue sheet if it were lifted from the floor while there was still moist blood on it, gathered together, together with a bedspread placed into a plastic evidence bag and sealed up?

MR. MURTAGH:  OBJECTION, Your Honor. The question assumes a fact not in evidence.

MR. SEGAL:  That demonstration was in evidence, because I performed it, Your Honor.

MR. MURTAGH:  Not with moist blood, Your Honor.

THE COURT:  Yes, I will SUSTAIN that objection.

MR. SEGAL:  Your Honor, I ask you to refer to the record. I have Mr. Shaw's testimony in that regard on each of those points.

THE COURT:  Well, find it and bring it here.

MR. SEGAL:  Will the Government make available the transcript to go through it. May we see Your Honor at sidebar?

B E N C H  C O N F E R E N C E

THE COURT:  What is the question again?

MR. SEGAL:  The question is, does he have an opinion as to whether the smear could have been created if the bedsheet was picked up together with the bedspread and placed in an evidence bag, and sealed.
     Your Honor may recall that is the demonstration that I, number one, had Mr. Ivory do with me and I played the role of Mr. Shaw and gathered up --

THE COURT:  (Interposing) But now you are talking about having something that took place later on. What is the evidence that the blood was still moist at that time?

MR. SEGAL:  I asked Mr. Shaw, if Your Honor pleases, to go through each and every one of the major items in the house as to what was the condition of the blood. We have his testimony in this regard from a prior proceeding.
     He described tacky, he described wet, he used a series of words. I did that with a view toward -- you know, our theory of this case has been that that has been an explanation for a number of the impressions, that the blood was, you know, at least a certain amount dried.
     Mr. Shaw was explicit that there was not a single item of blood of evidence that he gathered up that was anything less than tacky. Now he used moist, wet, or shiny. I think that is not in any way outside the facts; that it is pretty clearly established.

MR. BLACKBURN:  Mr. Stombaugh was asked, I think, direct or redirect one, about that shoulder area, as to how long blood would stay moist. And specifically with regard to the shoulder area, he said an area like that would be dry in a matter of minutes.
     There is testimony in the record that the sheet was not picked up until after the bodies were moved, which was at 8:00 o'clock.

MR. MURTAGH:  Further, Your Honor, if you will let me interrupt just a second, there was a photograph taken by Page of the crime scene, Judge, which shows the clock, which is running. The one photo shows it is 5:00 o'clock, and the sheet is in that photo at a quarter of 1:00.
     That is a long time after the bleeding stopped. And my recollection of that testimony differs from Mr. Segal. I think what Mr. Shaw was testifying to, with respect to tackiness, is the blood in Kimberly's room, which was the room he processed and arrived at, I think, 4:00 o'clock in the morning.

MR. SEGAL:  We are talking about two different matters of blood, Your Honor. Mr. Blackburn and Mr. Murtagh are talking about a different matter of blood. We are not saying that that smear -- the so-called Stombaugh shoulder smear -- was wet at the time that it was picked up.
     What we are saying is, that there was other -- what I asked him was if in his opinion, there was moist blood on the sheet, and if it was gathered in the fashion I indicated: could that account for how the smear was made, because that's what the last slide was.
     All I want is his opinion if that is so. I base it upon the testimony of Mr. Shaw that all of this blood -- not that smear -- but there was blood on that sheet, as well as the other bedspreads and other matters that it was moist, wet, tacky -- they were all his words.

MR. BLACKBURN:  There is no testimony that I can recall in the record that at the time the sheet was collected it was moist or not.

MR. SEGAL:  I will put it in a hypothetical.

THE COURT:  I will just put this one on hold and let you see if you can find exactly what his testimony was because I'm just sorry -- I can remember everything, maybe, except that that has happened these last five weeks, but somehow or another, that one escapes me, surprisingly.

MR. MURTAGH:  We will provide the transcript to counsel at the break.

MR. SEGAL:  We are not going to be able to do that until after break. I expect we'll be overnight with this witness, Your Honor. I would make a suggestion.

THE COURT:  It looks like we are going to be overnight up here. That is the reason I was trying to get on with it.

MR. SEGAL:  I was going to suggest, Your Honor, we propose this as a hypothetical subject to tying it up later on. That would get us past this point.

MR. MURTAGH:  Your Honor, I think the hypothetical is contrived.

THE COURT:  I will let you do it the way I said first.

(Bench conference terminated.)

Q  Dr. Thornton, I would like to ask you about the areas that you had sort of gotten into, "C" and "D," which were described by Mr. Stombaugh at page 4141 of his testimony. I am going to ask your opinion about those.
     He stated at that time that, "Area 'C' conforms to a bloody handprint." He then said, "Area 'C' on the sheet...conforms to a bloody left hand -- the two portions of it, here, here and here." He said, "As to Area 'D,' it conforms to a bloody right hand." Let me ask you, first of all, do you agree with his opinion and his conclusion?
A  No, I think that is exceedingly unlikely.
Q  Exceedingly unlikely? On what do you base your opinion that that conclusion is exceedingly unlikely?
A  May I illustrate with some color enlargements of these areas?
Q  Yes; are you now referring to the exhibits that were previously introduced in evidence here by the Government?
A  Yes.
Q  Would you tell us which ones you are going to refer to and perhaps you can set them up so the jury can view those.
A  820(a) and 821(a).
Q  You may want to use a pointer, Dr. Thornton, in that regard?
A  Well, on these impressions, "C" and "D," what we observe -- I will show first on "C" -- is in the area that is suspected of being a finger impression. We see a more dense concentration of blood, surrounded by a lighter concentration. We see it most vividly here and here on "C" and we see it most vividly here on "D."
Q  How does that compare with your own experiment which we had on the screen a few minutes ago?
A  It doesn't match.
Q  I gather you had the opposite result. You had lighter in the center, where the most contact with the finger was, and darker where there was least contact?
A  Yes, that is correct. I think what we have here is an area that has been heavily bloodstained with a heavy drip of blood, where a fluid portion of the blood, the electrolytes -- in essence, the water portion of the blood -- migrates through the fabric.
     The fabric is serving as a blotter so we see a migration of the blood from the margins of the original blood spot, to the drop of blood, to the outside. This is in a similar manner that if you were to drop ink onto a blotter, it would migrate out from the initial margins of the spot.
Q  Now, based upon your own investigation into the matter, your experiment, your knowledge, information and background, do you have an opinion as to how or what form the impressions there that are known as "C" and "D" which Mr. Stombaugh thought were the hand impressions?
A  I thought I just answered that.
Q  Do you have an opinion as to how they may have been caused, "C" and "D"?
A  Yes.
Q  Would you state that, please?
A  I think that they are most likely a drop of blood with a considerable amount of blood -- "considerable" meaning at least a drop, perhaps several drops -- in one area, with the migration of the fluid portion of the blood away from that initial spot.
Q  Now I would like you to take a look again at the blue bedsheet, and ask you to look at an area that has been marked "A." Now with regard to the area marked "A," I would also call to your attention that this is an area that was described by Mr. Stombaugh in his testiomony as being consistent -- just bear with me a second.


Q  I don't want to misquote Mr. Stombaugh as to what his impression of that was. I must apologize to you -- I cannot locate it offhand. Do you recall, of your own reading in your own memoranda, what the conclusion of Mr. Stombaugh was about Area "A," and what he believed it looked like or resembled?
A  Yes.
Q  What was that, Dr. Thornton? What was your recollection?
A  My recollection is that Mr. Stombaugh found that impression "A" was consistent with an impression of Dr. MacDonald's pajama top.
Q  Do you agree or disagree with his conclusions?
A  I agree.
Q  And he also, I believe, made reference to Area "B" at the same time as being consistent with Dr. MacDonald's pajama top; do you agree or disagree with Mr. Stombaugh's conclusion in that regard?
A  I agree.
Q  All right, would you return to the stand, please. Now, I would like to ask you to look at Government Exhibit G-120, which is the bottom sheet -- the also blue sheet -- but it was the bottom sheet from the master bedroom.
     I would like to ask you whether you had occasion to examine this particular sheet for various tests?
A  Yes, I did.
Q  And what was the nature of the examination you made of G-120?
A  Really, two things. One was to verify a large stain appearing in the general vicinity of the center of the sheet as a urine stain. The second aspect of my examination was to look at the blood spatters on the sheet.
Q  Now let's first, if I may address our attention first to the stain in the center -- the large yellowish stain. Is that the one you were examining for possible urine, or presence of urine?
A  Yes, actually I received a clipping from that area. I did not take the clipping myself.
Q  Would that be the clipping here that has, as far as you know, July 22, 1979, with the initials, I would think, of Agent Don Murray of the FBI?
A  That's right.
Q  What examinations did you conduct on that piece of fabric that was supplied to you?
A  I conducted two tests to determine if the stain in fact was a urine stain.
Q  Did you arrive at a conclusion in that regard?
A  Yes.
Q  What was your conclusion and what was your opinion about that?
A  I believe the stain is, in fact, a urine stain.
Q  Now you also described checking the spatters of blood upon this particular bedsheet. Could you show us what the areas were that you examined, and then tell us what, if any, conclusions you arrived at? I will be glad to hold it up, if necessary.


MR. SEGAL:  Indulge me for one second, Your Honor.

THE COURT:  I will indulge you 16 minutes. We will take our recess now and we will come back today at 4:00 o'clock. Don't talk about the case.

(The proceeding was recessed at 3:44 p.m., to reconvene at 4:00 p.m., this same day.)

F U R T H E R  P R O C E E D I N G S  4:00 p.m. (The following proceedings were held in the presence of the jury and alternates.) (Whereupon, DR. JOHN I. THORNTON, 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 IN A T I O N  (resumed)

Q  Dr. Thornton, we were beginning to talk about the bottom bedsheet in the master bedroom, and right before the break I was interested in locating two photographs. Do you now have two photos there showing the master bedroom in the MacDonald house and, if you do, would you tell us what the numbers are, please?
A  These are Government Exhibits 40 and 45.
Q  And would you just please hold them so that members of the jury can see what those photographs look like? They represent the crime scene showing the body of Mrs. MacDonald and it shows a blue sheet draped over the master bed. Could you perhaps, just from the witness stand, show us where in the photographs the blood spatters that you examined are shown in the photo, and then we will go to the sheet and talk about the spatters and their meaning on the actual garment itself.
A  Actually, the blood spatters that I see on the sheet that I consider to be the most significant do not appear on the crime scene photographs, Government 40 and 45. They are too small.
Q  The photographs are too small? You mean the detail in the photographs is not there?
A  That's right. The blood spots are too small to be resolved by the --
Q  (Interposing) Can you just point with your finger, however, to the area on the sheet on which the blood spatters appear as far as you are able to tell?
A  Yes; it is this area right in here on the side of the bed where the sheet is extended down over the side of the bed, and it is in this general region right here. That would correspond to this area that we see at the top right in here.
Q  Now, approximately how many blood spatters are in this area that you are now pointing to?
A  Many hundreds.
Q  What, if any, opinion have you been able to form, based upon your examination of those blood spatters?
A  Well, the aerodynamic characteristics of blood in flight, traveling through the air -- this subject has been worked out in some considerable detail. Very fine droplets of blood such as this on the order of 25,000th of an inch down to perhaps 5,000th of an inch in diameter are characteristic of blunt impact -- blunt impact of some object such as a club and a human being in an unexposed portion -- I'm sorry -- in an exposed portion -- an area that is not covered with clothing.
     If someone beats on another human being with a blunt object, there will be this very fine dispersion of blood -- many hundreds, many thousands of droplets of blood.
Q  Now, what would happen when a blow is delivered to another human being using a club such as this stick that we have had identified here in this case? Let me show it to you again. I know you have seen it. It is the item that has been marked G-307.
     Let us assume that Mrs. MacDonald was struck by a person using such a club. Would the pattern of blood droplets that you now have been pointing to on this sheet be consistent with the pattern that would have come from her body as a result of blows delivered by that instrument?
A  Oh, yes.
Q  Do you have any opinion as to what, if any, effect such a blow would have on the person of the individual who struck the blow?
A  Yes.
Q  And what is that opinion?
A  I'd expect to see a dispersion of blood, a very fine fog of blood, such as we see on the sheet, on the clothing of the person responsible for doing the striking.
Q  And if the person who struck that blow were wearing a garment such as the blue pajama top that we have in this case, do you have an opinion as to whether or not that dispersion of blood droplets would land on such a garment?
A  Yes.
Q  And what is your opinion?
A  I believe it would. There is nothing about the distribution of the very fine particles of blood -- very fine droplets of blood -- that only seek out bedsheets. It would also be -- there would be a registration of those droplets on the pajama top also.
Q  In other words, there would be a similar pattern on the pajama top, if that were the garment worn by the individual, as there would be on the bedsheet you have shown us?
A  Yes.
Q  Now, what part of the pajama top -- if it were being worn by the individual who struck this blow in the hypothetical situation we are talking about -- what part of the pajama top, in your opinion, would receive the bulk of those droplets of blood that you described?
A  I think a precise answer to that would involve two aspects: one is that whatever portion is closest to the area being attacked, closest to the blunt impact, would receive the most dense concentration. Secondly, I would expect the sleeve areas to be more heavily represented and, assuming that the person doing the striking was facing the victim, I would expect to see some of the blood also on the front of the garment.
Q  What about the arm? Would that be most likely to have the largest dispersal of blood droplets -- the arm of the person who was wearing the pajama top such as the item here?
A  Yes.
Q  Now, have you in fact examined this particular blue pajama top yourself?
A  Yes.
Q  Did you find any indication -- such a pattern of dispersal of blood droplets on the arm -- first of all on the arm of the garment?
A  No, I found no such indication. I found a good deal of blood on the garment, but not the very fine aerosol, the very fine droplets of blood that we see on the sheet, and that I would expect from a beating of this type.
Q  Are all the areas of this garment so blotted with large blood stains as to prevent the appearance of this aerosol spray effect on there?
A  Oh, no.
Q  Now, I would like to move, if I can, Dr. Thornton, to another area with you. There is some testimony in this case that the same particular blue pajama top -- that when it is torn, may or may not release fibers onto the ground or the floor as a result of being torn in one or more places.
     Have you read some of that testimony yourself, by the way, in connection with your preparation to be here today?
A  Yes.
Q  And whose testimony are you referring to?
A  Mr. Stombaugh's.
Q  Now, I believe there was testimony from Mr. Stombaugh on this matter that, if this particular pajama top were grabbed in the frontal area and ripped down the front in an area where there is no bottoms and no seam, that it would release a substantial number of fibers. Do you agree with that opinion?
A  I may have lost sight of the question. Could you repeat it?
Q  That's my fault. Let me rephrase it. If this pajama top were torn when it was in its less damaged condition when it was not rendered asunder -- if it was torn, say, from a hand placed in the V-center and pulled out, do you have an opinion as to whether such a procedure would result in a substantial number of fibers falling from the garment or being released from the garment?
A  I have an opinion; yes.
Q  And what is your opinion in that regard?
A  That it would not.
Q  It would not. And what do you base that opinion on, Dr. Thornton?
A  That particular portion of the garment -- that tearing action that you have described from the V-portion down to the bottom of the garment -- would represent a tear of the fabric alone; that is, not along a seam, but simply a separation of the yarns. No sewing threads would be involved.
Q  Yes, I am only asking you now about the tear along that area. I will ask you subsequently about tears in other areas, but initially I would like your opinion and the basis for your opinion, please, as to whether or not there would be a substantial number of fibers released by a tear down the front of the garment which had no seam in it?
A  My opinion is that the fiber loos as a result of that tear would be minimal. The basis of my opinion is test tears that I have made in polyester-cotton cloth of that type.
Q  All right, now, will you tell us something about the kinds of tests you performed in order to base this opinion or arrive at this conclusion that you have just given us?
A  Well, I took white paper --
Q  (Interposing) Again, I am having difficulty hearing you. Keep your voice up, please.
A  I took white paper and tore polyester-cotton cloth, approximately in 18-inch portions -- tore it over the white paper and observed what fell to the white paper.
     I recovered the yarns and made a rough quantitative assessment of how many fibers -- how many yarns would be lost in that process.
Q  Now,what kind of fabric were you using at that time. What was your mix of fiber?
A  65 percent polyester, 35 percent cotton.
Q  And why did you make an 18-inch tear in this particular fabric?
A  That was about all I could reasonably tear in one action.
Q  And let's just measure, if we can, the front of this garment. From the point of the "V" to the bottom of the garment, can you tell us about what dimension that is, please?
A  19 inches.
Q  19 inches, all right. Now, may I ask how many times you performed this particular experiment using a piece of fabric, first of all?
A  Six tears of regular fabric, meaning --
Q  (Interposing) Bolt cloth of some sort?
A  Bolt cloth with no seam involvement.
Q  And you did this over a work bench on which you had spread out the papers in which to collect whatever fibers fell?
A  Yes.
Q  What was the average number of fibers that fell when the bolt cloth was torn?
A  There wouldn't have been enough to derive any statistically valid number. The yarns that were lost tended to be very few in number -- two or three, one or two.
     I don't recall -- if I may refer to my notes.
Q  Please do.
A  Two threads were all that were observed to be lost to gravity in this experiment, and also they tended to be fairly long in length -- two to eight inches in length.
Q  You are saying -- if I may just make sure I am clear, at least -- that on the six experiments using bolt cloth which you tore, the maximum number of threads that fell from gravity were two in any of those six experiments, three, perhaps, at the most?
A  Two at the most.
Q  Two at the most. All right, now, did you continue this experiment in any different fashion from the way you have described it so far?
A  Yes. I sewed a seam in the polyester-cotton cloth, and then ripped that seam, again, over the white paper, and then collected the sewing threads that were lost.
Q  And how many times did you tear or rip a sewed seam using this fabric?
A  Well, 10 times. I should mention that this is all on cloth that I had purchased. I did another series of experiments with pajamas.
Q  All right, we will come to that; but let's see if we can find out what happened in the second stage where you were tearing the seam that had been sewed in -- just in bolt cloth?
A  10 experiments.
Q  And what were your findings in terms of the number of fibers that were dislodged and because of gravity fell down onto your work bench?
A  I found that the results were quite variable, that in this series of experiments very short threads were created.
     There were many more than in the ripping of the unseamed cloth. The fibers were about a centimeter in length. The principal variable with respect to the number that would arise from this tearing appears to be the force applied to the fabric in dislodging the very short fibers from the holes in which they are loosely affixed after the tearing has taken place.
Q  Let me see if I understand that. You say that you had variable results depending upon how much force was applied to the tear?
A  That's right. I think there are two separate -- or I think the phenomenon of fiber loss from the area can be divided into two separate phenomena. One is the force that is applied to the seam to break the sewing threads, and the second force is the force necessary to remove those broken threads from the holes in which they are very loosely affixed.
     Now, in a very violent tearing motion, those two factors may exist concomitantly. They both must be -- they both may be in force at the same time. In a very gentle tearing, sufficient to tear the seam, the fibers remain in the holes in which they originally existed and are not lost.
     They can be removed very easily. It takes very little force to reach up and pull them out of their holes.
Q  As far as their falling from the result of gravity themselves from the tear, your finding was that that did not happen automatically -- just because you tore the fabric didn't result in a profusion of fibers on your table automatically?
A  Certainly there is a considerable number of fibers that are lost in the tearing process, but this type of experimentation does not really lend itself to any reasonable quantitative assessment of what might take place in it.
Q  Well, subject to the limit that you put on it, do you -- when the fabric was torn violently along the seam, what were the numbers you received -- the fibers that fell as a result of gravity?
A  Scores.
Q  Scores. All right, now, you say that you continued, changing the kind of fabric or material you were using. Will you please tell us about that?
A  Well, I used six pairs of pajamas. One was a new pullover type of the type in question here. One was an old pullover type purchased from a thrift store; and there were four old button-down types where I could not rip the center portion but I could rip the side panel and the sleeve.
Q  Now, what was the fabric composition of all these pajamas that you used in the second phase of your experiment?
A  Polyester-cotton.
Q  Same mix that is in the pajama top that is in question here?
A  Yes, this is a very common type of fabric. If you go into a fabric store you can almost invariably find 65 percent polyester, 35 percent cotton in whatever color you want.
Q  Will you tell us, please, what you found as a result of the experiments now, working on pajama tops, in terms of the number of fibers that were dislodged first when you tore it in an unseamed area?
A  If you tear the pajama tops along the unseamed area, you do not expect to create many fibers. If any are lost they tend to be long, several inches long. But they are very few in number.
Q  Did you find any difference in terms of the number of fibers that fell from the garment when it was torn in an unseamed area, as between the new pajama top as contrasted to the one that you bought in the thrift store -- the one that is the old one?
A  Well, not really, but two doesn't -- or one new pajama top does not represent a statistically valid sample, so I didn't really address that issue.
Q  Do you rememer how many fibers -- just out of my curiosity -- how many fibers you got dislodged by gravity when you tore the old pajama top on the unseamed area?
A  No, I do not.
Q  What about the experiments you conducted in terms of tearing along the seams of these various pajama tops. What was your finding in that respect?
A  I found a great many more short fibers of the sewing thread type as opposed to a yarn comprising the bulk cloth.
Q  Did you have any other findings or conclusions based upon the experiments you conducted with these various pajama tops, in regard to what effect the tearing would have on release of fibers by gravity or releasing threads by gravity?
A  I have a conclusion, yes.
Q  Would you tell us what that conclusion is, Dr. Thornton?
A  I think it makes a big difference whether we are talking about tearing the garment along a seam or tearing a garment along an area where there is no seam. From the standpoint of the number of fibers that would result from the tearing action, it would be -- in order to make any reasonable conclusion based on the numbers of fibers, we would have to know which seams we were talking about that are being torn at a particular time. I think that it would be possible that there would be a mix of tearing of a seamed area and an unseamed area which would further complicate any definitive analysis of this sort.
Q  I would like to turn, if I may now, to another area, and very briefly, for it is a matter that somewhat vexes me. We have had testimony in regard to --

MR. MURTAGH:  (Interposing) MOTION TO STRIKE that, Your Honor.

MR. SEGAL:  Oh, good God.

THE COURT:  Well, I will ask the jury not to consider this if the counsel finds himself for some reason vexed. Go on with your questions.

Q  In my unvexatious state, I will now ask you the following, Dr. Thornton, just to satisfy the question in my mind about the testimony here about the use of benzidine to be applied to spots to determine whether blood exists at a given area. Are you familiar with the use of benzidine in that regard?
A  Yes.
Q  There was testimony by Janice Glisson and other witnesses that benzidine is a specific test for blood. Do you agree or --

MR. MURTAGH:  (Interposing) OBJECTION, Your Honor. I don't think that was the testimony at all.

MR. SEGAL:  I do believe it was the testimony.

THE COURT:  I am sorry. I can't settle that one. Find the book and see what she said.

MR. SEGAL:  I will rephrase the question, and we will move along. I will do the same thing in another manner, Your Honor, if I may. We do not own Ms. Glisson's testimony. I do have another matter, though.

THE COURT:  Do it.

MR. SEGAL:  Thank you.

Q  Based upon your knowledge, training, information, and experience, is benzidine a specific test for the presence of blood?
A  No.
Q  When you say that it is not a specific test for the presence of blood, would you explain what you mean? What does that answer mean to us in general or lay terms?
A  Benzidine tests involve an oxidation reaction. Any strong oxidizing agent will promote the reaction. Any strong reducing agent will inhibit the reaction. It is a very sensitive reaction. Its principle -- well, I think that its main attractive feature is in its sensitivity and not its specificity. There are other materials that will give a false positive reaction. There are other materials that will inhibit the test where false negative reactions will occur.
Q  Would good forensic practice in terms of blood identification require the use of a confirmatory test in addition to the use of the benzidine test before deciding whether a given or identified stain was blood or not?
A  I think so.
Q  Can you tell us what some of the available practical confirmatory tests would be?
A  There is really only one that has any appreciable currency in crime laboratories. That is the Takayama test. There is another, the Teichmann, but it is a difficult, rather ambiguous test.
Q  Now, in regard to the use of benzidine, the test for identifying whether blood is present or not, does it make a difference as to the quantity of blood that is being tested when you use the benzidine test and their confirmatory test as to what kind of results you get?
A  Yes.
Q  Could you explain how it makes a difference and in what fashion?
A  Well, there is a lower threshold of reactivity where even with authentic blood, the benzidine reaction will not occur. I don't mean to over-emphasize that. The benzidine reaction is a sensitive reaction. But certainly there is a point at which authentic blood will not give a reaction, or not give an observable reaction under the conditions in which the test is run.
Q  Would I be correct if I, in lay terms, say if you have too small a quantity of suspected stain, the benzidine test is not conclusive in terms of whether blood is present or not?
A  Yes. I think that would probably be a less stilted way of saying what I tried to say.
Q  I am through with that area. I neglected to ask you something about the experiments you conducted on the tearing of fibers, and I now ask you to indulge me. I want to ask you one, in essence, bottom-line question. In regard to your various experiments of tearing the fabric on an unseamed area and then the seamed area in turn, in terms of the amount of fibers that are dislodged and fall by gravity, all I want to know from you is the following, Dr. Thornton: based upon your knowledge, training and experience, do you believe that the experiments you conducted in that regard were made in a manner consistent with proper scientific methods as recognized in the field of forensic science?
A  Well, I think so. But let me say this: that in this area, as in many other areas, there is a continuum of confidence that I would place in my experimentation. Some types of experimentations lead to rather definitive results and the results could be used in both a prospective and a retrospective sense.
     Other types of experimentation involve a number of variables. And assumptions have to be made about those variables. And those assumptions themselves may be subject to some imprecision.
     This particular series of experimentation I think is in consonance with good scientific method. But I don't consider the subject to have been exhaustively studied. I don't see anything here that I could publish or that anyone could use to apply to another case.
Q  Let me turn now, if I may, to the question of the pajama top reconstruction experiment to which Ms. Green testified. Have you -- you told us, of course, that you have read the testimony of Ms. Shirley Green; is that right?
A  I read a portion of it, and I heard a portion of it on the second day of her testimony.
Q  Let me just remove this exhibit. This is not germane to what we are talking about. In addition to reading her testimony, you also heard some of her testimony personally; am I correct in that regard?
A  Yes.
Q  And you heard her describe what she did in terms of putting probes through the holes in the pajama top into 48 holes and fitting them into 21 holes in a replica of what was meant to be a torso or display of the torso of Mrs. MacDonald. You heard that; did you not?
A  I don't recall the torso being --
Q  (Interposing) You are quite right -- a pattern resembling the pattern that she said existed in the torso of Mrs. MacDonald.
A  That's correct.
Q  Is it possible, based upon your knowledge, information, and training, for Ms. Green, using the information that she had, to have made the reconstruction of the pajama top as she did? Is it possible for her to have done that and done it correctly -- moving the 48 holes into 21?
A  No.

MR. SEGAL:  No further questions, subject only to the matter, Your Honor, in regard to the wetness of the fabric. I would like to leave -- we will probably not finish the cross-examination this evening -- I would like to continue on that brief subject on redirect tomorrow.

THE COURT:  All right, sir. I will let you go into that tomorrow.

MR. SEGAL:  Otherwise, the witness is for cross-examination.

MR. MURTAGH:  Your Honor, the transcript has been made available to counsel. I think we could resolve it tonight, may it please the Court.

MR. SEGAL:  It can only be done by looking at it. It would take, I would say, probably ten minutes. We have a half hour's time. I would like to read it at 5:00 o'clock and get it back to Mr. Murtagh and be able to pick up on that one brief subject. Otherwise, I am through.

THE COURT:  He may need it tonight.

MR. MURTAGH:  Your Honor, it is about two pages. I provided it to counsel at the break.

MR. SEGAL:  That's what he has chosen. I would like to read it and it will take me a little bit of time, and I will give it back to him.

THE COURT:  All right, I will let him read it at 5:00 o'clock, but you give him ten minutes. He said he would be through in about that time.

C R O S S - E X A M I N A T I O N  4:32 p.m.

Q  Now, Dr. Thornton, I believe that the first area you talked about on direct examination was the fabric tears in the pajama top; is that correct, sir?
A  Yes.
Q  I wonder if I might had you Government Exhibit 101.
A  All right.
Q  And also this torso form. Sorry it took a while to get around there. And I wonder if I can ask you to put that pajama top on the torso for me, please. Let me give you some tape.

THE COURT:  That's the trouble now. He's got some Scotch tape over here binding it all together.

MR. MURTAGH:  I think it is inside-out.

Q  Let me ask you, Dr. Thornton, with respect to that garment, did you conduct any experiments placing it on either a torso or any other form?
A  No.
Q  You did not. Okay, you have observed, I believe, the distribution of holes in the pajama top.
A  Yes.
Q  Did you count each and every one of them?
A  Yes.
Q  And would you describe, please, the general location of the holes?
A  Well, good heavens. Not offhand. They are distributed rather widely.
Q  Well, did you find any on the left front panel or the front left sleeve?
A  I don't recall that I did; no.
Q  Would it be accurate to say that the holes, with the exception of a few in the front, are primarily in the area of the back panel -- let me turn this around -- and the right shoulder and sleeve?
A  Yes.
Q  Now, with respect to your experiment with the pajama top on the sled, I believe you testified -- correct me if I am wrong -- that you used new pajama tops; is that correct?
A  I just used polyethylene -- I keep saying polyethylene -- polyester-cotton cloth.
Q  I see. You did not use pajama tops?
A  No.
Q  Okay. Do I take it that with respect to the pajama top, you conducted no experiments with an ice pick with the pajama top in motion; is that correct?
A  Well, my fabric on top of the sled is, in my mind, a reasonable facsimile of a pajama top in motion.
Q  I see. But is it not all bunched up, and in fact, didn't you use the term "tied down" with respect to the sled?
A  It is not bunched up. I thought it was fairly clear on the slide. It conforms to the target, but it is not bunched.
Q  Well, I am sorry. Which target does it conform to?
A  On top of the sled, there was a target of resilient material.
Q  Yeah.
A  On top of that was the cloth with the fabric.
Q  Well, would I be correct in saying that the cloth that you used instead of a pajama top on the sled would resemble the approximate folding of the pajama top as I hold it in my hands? Or if not, would you please hold it in the same way?
A  No. You misunderstand the design of the experiment.
Q  Yeah.
A  What is on top of the sled is a ham.
Q  I am sorry?
A  A ham.
Q  A ham?
A  Wrapped in a plastic trash bag. On top of that is a very small piece of cloth, measuring perhaps a foot.
Q  Oh, I see. And is that piece of cloth stretched tight over the resilient material?
A  Fairly.
Q  Does the resilient material support or buttress up the cloth?
A  Yes.
Q  Dr. Thornton, have you ever had occasion to read or have read to you the various statements which Dr. MacDonald made with respect to the pajama top?
A  Yes.
Q  I am sorry. Could you speak up a little louder?
A  Yes.

THE COURT:  He said, "Yes."

Q  Let me ask you if you have ever heard this portion of the statement before, and I am referring to a portion from the Article 32 transcript, August 13, 1970, in which Mr. Segal asked Dr. MacDonald various questions about his pajama top. And the sequence starts: "...I am not sure that the process involved is clear when you say, 'My hands were bound in the pajama top.' Answer: I let go of the club and I was struggling with these two people and I realized that, you know, I couldn't really punch back. My hands were like bound up in my own pajama top. I couldn't get them out of the sleeve or something. I was just -- and I had the impression that it had been ripped from around me or pulled over my head. But I don't distinctly either. Question: You don't recall doing that to yourself, though? Answer: No. Question: Pulling the pajama top over your head? Answer: No. Question: Then what was the next thing happening or what did you next become aware of? Answer: Well, as I was struggling, I received another what seemed like a fairly impressive blow on the side of my arm and saying to myself, 'What do I do now?' Really I was just struggling trying to get my hands free. My hands themselves were still free, but the pajama top was around my wrist and between my wrist, and just around the part of my hands really. And in the struggle, I had hold of one of these -- I don't know which one -- hands, and in the hand I saw a blade."
     Do you recall having that read to you, sir?
A  I recall reading it.
Q  My question is, could you describe, using the pajama top and your own hands, what that sequence indicates to you. In other words, what position of the pajama top are we talking about?

MR. SEGAL:  I don't understand the question, Your Honor. I think the question is confusing. I would ask it to be phrased either in two sections or three sections.

THE COURT:  If that is an objection, I will OVERRULE it. That is one that I understood.

MR. SEGAL:  I apologize, Your Honor.

MR. MURTAGH:  Thank you, Your Honor.

MR. SEGAL:  Maybe I should let Dr. Thornton decide.

THE WITNESS:  I understand the question. No, I cannot. My interpretation of Dr. MacDonald's statement there is that there is a great deal of uncertainty as to how the pajama top was torn or pulled over his head. My understanding is that he is not sure whether it was pulled over his head or torn and he is not certain how the pajama top was entwined around his arms.

Q  Well, I believe the statement says that the pajama top was, "around my wrists and between my wrists." Let me ask you, in formulating your experiment, if you considered whether the pajama top was bound on somebody's wrists like this, much as if a sweater had been pulled over your head and you were taking it off and you hadn't quite removed it?
A  No. I understood your last question to say, in formulating my experiment?
Q  Yes, sir?
A  Please don't misconstrue the purpose of this experiment. This experiment was really in response to the position by Mr. Stombaugh that because the holes in the pajama top were circular, that the garment could not have been in motion. That was the purpose of the experimental design. You are talking about two different things --
Q  (Interposing) Well, let me --
A  (Interposing) Let me finish my answer. If we are talking about the unsupported fabric, then that is a completely new ballgame, and I am unable to speculate as to how the pajama tops may have been between the hands of Dr. MacDonald.
     I think that there is no way that I can really do any experimentation that would have any retrospective validity.
Q  Let me ask you this with respect to your experiment. But first, let me say, is it your understanding that Mr. Stombaugh testified here that the pajama top could not have been in motion?
A  Yes, I have it in front of me.
Q  Will you agree or disagree if he said it was his conclusion that the absence of torn areas indicated that the garment was stationary at the time the holes were made in it?
A  Yes, it is that interpretation with which I quarrel. The fact that the holes in the pajama tops are circular does not mean that the garment had to be stationary. It may well have been in motion.
Q  Okay, well, do I understand your testimony that your experiment with the sled was not meant to reconstruct or verify the thesis that the pajama top, when worn by the Defendant, and as described by him involving the struggle in which, I believe, he used the idea of blunting blows with his pajama top.
     Your experiment was not made to verify that statement but rather to contradict or test the validity of Stombaugh's conclusions?
A  My answer to that is a qualified "Yes." It is qualified in this regard. I think it would be inappropriate of me, from a scientific standpoint, to speculate as to how the pajama top existed between the arms of Dr. MacDonald.
     My understanding of his statement is that he doesn't really know what happened, and I certainly don't know what happened, and I can't really design an experiment to test all of the possible interpretations of stabbing an ice pick into moving cloth under that type of situation.
     What I can do, though, is to test the hypothesis that because the holes have a circular appearance, that the garment could not have been in motion when those holes were placed there. And that is what I did and I arrived at a conclusion.
Q  Dr. Thornton, my question is: do you have any scientific reason not to take the Defendant's statement at face value that he was wearing his pajama top and that it was either ripped or pulled over his head, and after it was either ripped or pulled over his head, it was around his arms and between his wrists and he was using it to blunt the thrusts of the weapons by the alleged intruders?
A  I have no reason to question that. I consider that to be a rather plausible explanation.
Q  The question is: did you conduct an experiment to test that hypothesis or only the Government's conclusion?
A  I see no way to test the hypothesis when it is not clear what the configuration is or what actions are involved -- whether tearing or pulling over the head and what sort of twisting is involved.
Q  I am not talking about the tearing or the pulling. What I am talking about is however it gets over his head and comes down around his arms. He said, and let me quote: "And I was trying to punch and I couldn't get my arms out of my jacket. It is like when you see in a hockey fight when a guy pulls a shirt over the other hockey player, you know, I couldn't do anything," from the grand jury, August 15th, 1974.
     My question, Dr. Thornton, is: do you have any scientific basis for saying that if someone did have this pajama top around his wrists and between his wrists and was involved in what we must assume to be a life and death struggle and was blunting injuries by two assailants who had a knife and and ice pick, that the pajama top could have been moved in a violent fashion and still not sustain torn areas?
A  I am sorry, Brian. I have lost track of your question. Could you repeat it?
Q  My question is: if the pajama top is pulled over your head and you are using it as a shield and someone is trying to kill you with an ice pick, is it your opinion that the pajama top could be used in that fashion and still not sustain torn areas?
A  I don't know.
Q  Did you ever try an experiment?
A  No.

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


B E N C H  C O N F E R E N C E

MR. MURTAGH:  Your Honor, it seems to me that Dr. Thornton has testified to half of an experiment. He has got the better but not the bitter. I think we are entitled to test the validity of the entire process.

THE COURT:  I think you have half the better of the argument. I am going to let this thing stay in there for whatever it is worth.

MR. MURTAGH:  I am not trying to strike it. I want to do an experiment of my own, Judge, with a pajama top and an ice pick which I will wear and Brother Blackburn will flail away at me.

THE COURT:  Now, if we can get one to do Blackburn, the case will be over.

MR. MURTAGH:  If it would really help the realism of it, I will even wear it and let the Defendant flail away at me.

MR. SEGAL:  You know the Defendant does not harbor that kind of malice.

MR. MURTAGH:  I represent to the Court --

THE COURT:  (Interposing) You want to do an in-Court experiment?

MR. MURTAGH:  Yes, sir.

THE COURT:  What are you asking me for? Why don't you do it?

MR. MURTAGH:  Okay, sir.

THE COURT:  Is there any OBJECTION to it?

(No response.)

(Bench conference terminated.)

Q  Dr. Thornton, I am going to hand you what I would now mark as Government Exhibit 1081.

MR. SEGAL:  What is the number of that?

MR. MURTAGH:  1081.

(Government Exhibit No. 1081 was marked for identification.)

Q  I would ask you whether that pajama top is a reasonable facsimile of the pajama tops that you used in any of your experiments?
A  Reasonable, yes.
Q  Dr. Thornton, if I could, I am going to stand in front of you, placing great trust in Mr. Blackburn. I am going to ask him to flail away at me with an ice pick.

(Experiment is performed.)

MR. MURTAGH:  That was a certain amount of realism. That wasn't part of the act, Judge.

THE COURT:  Okay, anybody got a Band-Aid?

MR. MURTAGH:  That's okay.

Q  Dr. Thornton, I'll ask you to take a look at this pajama top and tell us what you see?
A  I see a number of tears, and they do appear to be, in fact, tears.
Q  Yes, sir. Are they straight puncture-type holes?
A  One of them appears to be fairly -- well, yes, several of them are, but not all of them. I can count -- you understand this is an approximation.
Q  Yes, sir.
A  This is not an atmosphere conducive to good work; but there are three areas here that are circular in their appearance. There is one here that's slightly elongated, and the remainder appear to be tears.
Q  Okay, thank you.

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

THE COURT:  Yes, if they haven't already seen it.

(Exhibit passed among the jury.)

MR. SEGAL:  Do you need a doctor, Mr. Murtagh?

MR. MURTAGH:  Thank you, no.

Q  I take it, Dr. Thornton, that you have conducted no experiments such as the one we have just done here in court?
A  No.

THE COURT:  He's still here, isn't he?

MR. MURTAGH:  Judge, that is our point.

THE WITNESS:  No, I considered it and rejected it. I think it would be a little bit silly from a number of standpoints -- scientifically silly being something other than --

THE COURT:  (Interposing) Than silly-silly.

THE WITNESS:  Yes, Your Honor.

Q  Would it be accurate to say that that's --

MR. SEGAL:  (Interposing) The witness did not finish his answer. I OBJECT, Your Honor.

THE COURT:  Yes, let him finish his answer.

MR. MURTAGH:  I'm sorry.

THE WITNESS:  My interpretation of Dr. MacDonald's statement is that it incorporates so much vagueness, so much uncertainty, that I really would not know how to design what I would consider to be a scientifically valid experiment.
     I think this is interesting, but I don't think that it is scientifically reliable.

Q  Well, would you say that this experiment has no controls?
A  It involves so many assumptions that I think it is defective from that standpoint. It involves an assumption of the position of the pajama top, and it involves an assumption of the weapon. Now, I am convinced that there is an ice pick involved in this crime, but I have no way of determining that there is an ice pick involved in that particular aspect of the case. It may be, but it may not be. I do not know --
Q  (Interposing) Do you have any reason to believe --
A  (Interposing) Let me finish. It would be in appropriate for me to guess as to all of these variables. The guesswork that may be involved may compound all of the imprecision in it -- all of the errors. I don't feel that way about the sled experiment where I can control my variables.
Q  Dr. Thornton, based on your review of the testimony, do you have any reason to believe that the puncture holes in the pajama top got in the pajama top other than when it was on some portion of Dr. MacDonald's body?
A  I think that is plausible. There is another aspect of my answer, too, that I did not give you before. If you will want it --
Q  (Interposing) Please.
A  That is, we don't know the manner in which those thrusts were made. I think the likelihood of tearing would be much greater in the overhand method that Mr. Blackburn has used than in a jabbing-type of action. It is questions such as this that makes me shy away from devising some sort of ricky-tick experiment, if I can use that terminology --

MR. MURTAGH:  (Interposing) I will MOVE TO STRIKE that.

THE COURT:  I am sorry?

MR. MURTAGH:  I said I will MOVE TO STRIKE that.

THE COURT:  Let him continue -- finish his answer. Did you finish, sir?

THE WITNESS:  And try to derive some validity from any experimentation process.

Q  Dr. Thornton, you have been in the crime scene; have you not?
A  Yes.
Q  Have you examined the couch in the living room?
A  Yes.
Q  Do you know the approximate height of the couch in the living room?
A  Not offhand; no.
Q  We have a diagram that is in evidence, but would it be accurate to say that it is a fairly low couch?
A  Yes.
Q  Would it be accurate to say that if someone were approximately 5' 8", 5' 9" -- in that range -- and was trying to kill somebody who was in a semi-sitting position on that couch, they would be more likely to stab overhand with an ice pick as opposed to stoop down and stab underhand?
A  I don't know.

THE COURT:  Are you about at the end of that particular series?

MR. MURTAGH:  Yes, sir.

THE COURT:  Well, we are about at the end of this day, so we will let the jury retire. Did you finish looking at the Murtagh experiment? If you did, we will take a recess now until tomorrow morning at 9:30. So far as I know, they haven't filed any new motions today, but we will reassemble tomorrow morning at 9:30.
     Members of the jury, please remember not to talk about the case among yourselves or with others and don't let anybody talk about it anywhere around you. Keep open minds about it. You have not heard quite all of it yet. Have a good night, a safe trip home and back, and be back tomorrow morning at 9:30. We will let the jury retire and then we will recess.

(Jury exits at 4:58 p.m.)

THE COURT:  Anything else?

MR. SEGAL:  Very briefly in regard to the matter this morning of the affidavit I filed about the unavailability of a witness. At this time, I want to make of record another affidavit, if Your Honor pleases, in regard to another witness. In this instance, I think there may be less of a problem. I am going to file with the Court an affidavit of the unavailability of Mary Judith Thoesen, T-h-o-e-s-e-n, who testified at the Article 32 proceeding in 1970. On Monday of this week, she delivered by Caesarian section a baby. She is, I think, by all means, unavailable. The Government has her prior testimony.
     I file this now as predicate to our reading her testimony probably either tomorrow or the day after.

THE COURT:  You mean you don't think you will finish tomorrow?

MR. SEGAL:  Beg your pardon, Your Honor?

THE COURT:  You don't think you will finish tomorrow?

MR. SEGAL:  No. In the order of proof that we are proceeding, her testimony fits together with a group of similar witnesses. There is, I think, no reasonable likelihood that she would be available to travel from her home having just given birth on Monday to an infant. I think, also, the Government is fully aware of the nature of her testimony.

THE COURT:  Where is she from?

MR. SEGAL:  What is her current address -- I am sorry? She is in Herndon, Virginia, Your Honor, in the hospital there.

MR. MURTAGH:  We have no OBJECTION, Your Honor. It is a character witness. We certainly have no desire to incommode anybody that has just had a Caesarian.

THE COURT:  I was just going to say under those circumstances, I think we ought to accommodate her. Anything else?

MR. SEGAL:  No, Your Honor.

THE COURT:  Recess us until 9:30 tomorrow morning, please.

(The proceeding was adjourned at 5:02 p.m., to reconvene at 9:30 a.m. on Wednesday, August 15, 1979.)