38. On August 21, 1979, at a bench conference, Judge Dupree denied defendant's motion to dismiss based on the government's failure to turn over Brady materials. However, Judge Dupree again admonished the government, stating:
But now, I'll say this: I have always taken the position that if the Government has anything that classifies as Brady material and they do not give it to you, they are certainly going to get reversal. I have instructed them to do it, but now I am not going into their files and in a case as big as this, I am not going to take three days off to see what they've got and whether or not you are entitled to it -- I'm not going to make that. That's their risk. If they've got stuff, they're going to do it. (emphasis added) (Attached hereto as Exhibit 28)
39. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten laboratory notes of CID laboratory technician Janice S. Glisson which reference her findings of blond synthetic hair-like fibers on a clear-handled hairbrush (designated by the CID as Exhibit "K") taken from the MacDonald home. (Attached-20-hereto as Exhibit 29) I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.
40. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten inventory notes and laboratory notes of FBI lab technicians James Frier and Kathy Bond, which document the existence of black, green, and white wool fibers found in debris taken from the body of Colette MacDonald (designated by the FBI as exhibits Q-88 and Q-100) and the wooden club murder weapon (designated by the FBI as exhibit Q-89). (Attached hereto as Exhibit 30) I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.
41. I have been shown by Dr. MacDonald's present counsel an unsigned typed FBI laboratory report dated March 14, 1979, and numbered "90103084 S RR IZ." (Attached hereto as Exhibit 31) I have carefully reviewed this typed report and state with certainty that I never saw it prior to, nor during, the trial of Dr. MacDonald's case, nor was I aware until now that the FBI had conducted a re-examination of certain pieces of evidence in early 1979.
42. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten laboratory notes of Army CID laboratory technician Dillard O. Browning, which document the existence of fibers within the debris taken from underneath the body of Colette MacDonald (designated by the CID as Exhibit E-303) that did not have the blue pajama top as their source. (Attached hereto as Exhibit 32) I have carefully reviewed these hand written notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.
43. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten laboratory notes that were provided under the Freedom of Information Act to Dr. MacDonald's attorney, Anthony P. Bisceglie, by former FBI lab technician Paul M. Stombaugh. (Attached hereto as Exhibit 33) These handwritten notes indicate that the FBI's lab examiner discovered within FBI exhibit Q-79, which was the debris taken from underneath the trunk of Colette MacDonald's body, the existence of fibers that did not have the blue pajama top (designated by the FBI as exhibit Q-12) as their source. I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.
44. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten laboratory notes of CID laboratory technician Dillard O. Browning, concerning his examination of debris (designated by the CID as exhibit E-211) taken from a blue sheet that was found on the floor of the master bedroom. (Attached here to as Exhibit 34) These documents indicate that the CID found what possibly may have been a piece of "skin tissue" and an "animal hair" within the debris taken from the blue sheet. I have also been shown by Dr. MacDonald's present counsel what have been represented to me as being another page of handwritten laboratory notes of CID laboratory technician Dillard O. Browning, concerning another examination of the debris taken from the blue sheet (the blue sheet itself having been designated by the CID as exhibit D-211), which document the presence of a pubic hair within the debris taken from the sheet. (Attached hereto as Exhibit 35) I have carefully reviewed the handwritten notes in Exhibits 34 and 35, and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.
45. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten laboratory notes of FBI lab technicians Kathy Bond and James Frier. (Attached hereto as Exhibit 30) These notes, which document the FBI's laboratory examination of the debris taken from the blue sheet that was found on the floor of the master bedroom (designated by the FBI as exhibit Q-125), document the FBI's conclusion that the CID had misidentified the hair found in this debris as being an animal hair when, in fact, it was a human hair. I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.
46. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being the handwritten laboratory notes of CID lab technician Dillard O. Browning, which document the existence of a human hair found in debris taken from the bedding of Kimberly MacDonald (designated by the CID as Exhibit E-124). (Attached hereto as Exhibits 36 and 37) I have carefully reviewed these handwritten notes and state with certainty that I never saw these notes prior to, nor during, the trial of Dr. MacDonald's case.
47. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being handwritten laboratory notes that were provided under the Freedom of Information Act to Dr. MacDonald's attorney, Anthony P. Bisceglie, by former FBI lab technician Paul M. Stombaugh. (Attached hereto as Exhibit 38) These handwritten notes, like the notes compiled by CID laboratory technician Dillard Browning, indicate the presence of unidentified human body hair in the bedding of Kimberly MacDonald (designated by the FBI as exhibit Q-93). I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.
48. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being the handwritten laboratory notes of CID lab technician Dillard O. Browning, which document the existence of a human hair found in the debris taken from the bedspread on Kristen MacDonald's bed (designated by the CID as Exhibit E-52NB), that did not match hair samples taken from Dr. MacDonald. (Attached hereto as Exhibits 39, 40 and 41) I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.
49. I have been shown by Dr. MacDonald's present counsel what have been represented to me as being the handwritten laboratory notes of FBI lab technician Kathy Bond, which document the existence of a human hair within the debris taken from the bedspread of Kristen MacDonald (designated by the FBI as exhibit Q-87). (Attached hereto as Exhibit 30) I have carefully reviewed these handwritten notes and state with certainty that I never saw them prior to, nor during, the trial of Dr. MacDonald's case.
50. The only handwritten laboratory notes that the defense ever received, were received during trial, and were limited to copies of handwritten notes that FBI laboratory technician Paul M. Stombaugh brought with him to the stand when he testified. (Attached hereto as Exhibit 42) After Mr. Stombaugh testified, I immediately requested that his notes be turned over to the defense pursuant to the Jencks Act. The Court ordered that Mr. Stombaugh's notes be turned over, and the government provided the copies of the notes to the defense, which consisted of 54 pages of notes, primarily having to do with the government's allegation that the blue pajama top had been stationery on the body of Colette MacDonald when the stab holes were made in it. These notes were immediately reviewed by myself and Dr. John Thornton for use during cross-examination. These notes make no mention of any findings or laboratory notes such as I have described in 38-49, supra.
51. During the trial of Dr. MacDonald's case, the defense entered into a stipulation concerning the testimony of James Frier. Prior to entering into this stipulation, it was represented to me by prosecutor Brian M. Murtagh that Mr. Frier, if called by the government, would testify that:
(a) he had examined multicolored strands of yarn removed from the night stand in the master bedroom of the MacDonald home (Government trial exhibit 381) and that these yarns microscopically matched a green yarn found on a throw rug in Kristen MacDonald's room; and,
(b) he had examined fibers found within the debris (Government trial exhibit 307) removed from the wooden club murder weapon and determined that fibers removed from the wooden club murder weapon microscopically matched the fibers of the multicolored throw rug that was found at the feet of the body of Colette MacDonald. (Attached hereto as Exhibit 43)
52. Prior to entering into this stipulation concerning Mr. Frier's testimony, I was never informed by Mr. Murtagh or any other government prosecutor that Mr. Frier had discovered the presence of black and green wool fibers on the wooden club murder weapon. Further, I was also not informed by Mr. Murtagh or any other government prosecutor that Mr. Frier or other FBI laboratory personnel had conducted reexaminations of the debris taken from Colette MacDonald's body and the wooden club murder weapon in which the FBI discovered the presence of additional black, green and white wool fibers.
53. If I had been aware of the extent to which the FBI had reexamined various pieces of evidence taken from the crime scene or that Mr. Frier's laboratory notes revealed the presence of black, green and white wool fibers on the body of Colette MacDonald and on the wooden club murder weapon, I would not have agreed to the stipulation. I would have demanded that copies of Mr. Frier's handwritten notes be turned over to the defense and that he appear as a witness so that I could cross-examine him on his findings.
54. Had I been informed that Janice Glisson had discovered and documented in her handwritten laboratory notes the presence of blond synthetic hair-like fibers, some 22 inches in length, on the clear-handled hair brush taken from the MacDonald home, I would have demanded that Glisson's handwritten notes be turned over to the defense so that I could cross-examine her on her findings.
55. In both instances involving Frier and Glisson's findings, I was either directly or indirectly misled by the government by virtue of its representations to me -- and often to the Court as well -- and its failure to turn over these exculpatory documents that would have allowed me to follow the course of action described above.
Sworn to before me this 13 day of October, 1990.
James C. Talley, Notary public
My commission expires May 25, 1993.