Feature Article

Winner, 1999 James B. Merritt Award

North Carolina Criminal Justice Association

DNA Testing May Cast Reasonable Doubt in Fatal Vision Triple Murder

Defense Alleges Botched Investigation, Suppressed Evidence in 1979 Trial

Former 'Dream Team' lawyer Barry Scheck has brought the near 30-year-old MacDonald triple murder case back into the limelight. On Tuesday March 23, 1999, I looked on as Scheck and the Boston law firm of Silverglate and Good had their day in court at a hearing held at the Wilmington, NC Federal Courtroom of U.S. District Judge James Fox. The hour-long hearing determined when and where the DNA of decades-old hair, blood, and fiber evidence would be tested.

Ft. Bragg Triple Murder

Dr. Jeffrey MacDonald, a Green Beret group surgeon and Captain in the U.S. Army, was found guilty in 1979 of the February 17, 1970 stabbing and bludgeoning deaths of his pregnant wife Colette, twenty-six, and their two children, Kimberly, five, and Kristen, two. The case was made famous by the 1983 Joe McGinniss true crime novel Fatal Vision, which chronicled the crime and resulting trial.

MacDonald maintains his innocence, citing several facts suppressed at the trial to support his claims. A 1995 book, Fatal Justice, written by Jerry Allen Potter and Fred Bost, also tells the story of the MacDonald murders. In Fatal Justice, MacDonald said he awoke on the living room couch on the night of the murders to the screams of his wife and oldest daughter, and was attacked by three men, suffering multiple stab wounds and contusions. In the background he said he saw a blond woman in a floppy hat, holding a flickering light and chanting "Acid is groovy" and "Kill the pigs."(16)

Botched Crime Scene

The Locard Exchange Principle states that when a criminal (or anyone else for that matter) comes into contact with an object or person, a cross transfer of evidence occurs. It is this principle that guides evidence examiners to search crime scenes for hair, fiber, and blood evidence, clues that the person who committed the crime has left at the crime scene. In order to accurately gather evidence, the crime scene must not be disturbed, and evidence must be carefully removed and classified before being transported to the lab for examination.

Fatal Justice extensively chronicled the actions taken by the Army's Criminal Investigative Division (CID) investigators. Statements from several people involved with the case proved that the MacDonald crime scene was poorly secured. Ordinarily, the number of personnel admitted into the crime scene is severely limited, to preserve the integrity of the evidence. Fatal Justice reported that CID agent Robert Shaw said in a 1970 official statement that "Prior to the arrival of Mister Ivory, who was the first investigator on the scene, there were approximately eighteen military policemen who went through the quarters." (51) In addition, the backyard, where the murder weapons were found, was not roped off. Fatal Justice stated that several people were allowed to walk through the unprocessed backyard, including newspaper reporters, and neighbors. Even more incredibly, garbage collectors were allowed to empty the MacDonald trash cans before they were inspected for evidence. (49)

In addition, the house itself was apparently not off limits to outsiders either. Fatal Justice reports that military personnel reported seeing up to four strangers in the quarters that morning. Military Policeman (MP) Kenneth Mica said that he saw a long-haired man wearing an army field jacket and jeans move a flowerpot and then sit on the couch, the same couch where MacDonald said he was attacked, effectively ruining the integrity of that part of the crime scene.(52) Master Sergeant Medlin, chief technician in charge of laboratory analysts sent from Fort Gordon to help investigate the murders, stated that "local CID investigators conducted at least one VIP tour through the crime scene for some of the ranking officers on post" (51) Perhaps the most obvious example of how poorly the crime scene was managed was the situation with MacDonald's wallet. Fatal Justice reported that MP Mica first saw MacDonald's wallet on the living room floor, then later on the top of a desk. At 5:30 a.m. an MP noticed that the wallet was gone. In an Army reinvestigation ten months later, ambulance attendant Paulsen admitted to taking the wallet. (50) The poorly managed crime scene severely undermined the MacDonald murders investigation.

The quality of evidence in the MacDonald case was equally sabotaged by how and when it was gathered. From the very beginning the FBI and the CID entered into a turf war. The better-equipped FBI was banned from the crime scene by the CID, on the basis that no civilians were involved. (45) Fatal Justice reported that CID lab technician Hilyard Medlin testified at the Army's Article 32 hearing that he destroyed nine good fingerprints and three good palm prints at the scene of the crime while attempting to process fingerprints without the proper equipment. (46) Fatal Justice also stated that more than three dozen finger and palm prints taken from the quarters were checked against the family's and investigator's prints and never positively identified, including a print from a drinking glass found on an end table near the living room sofa.(58) MacDonald states in Fatal Justice that he didn't remember seeing that glass before the murders.(58) Fatal Justice states that Dr. William Neal, the physician who examined Colette's body for signs of life, insists that he moved her body in his examination.(53) Neal examined the victims before the CID investigators drew their outlines and recorded their original positions in the crime scene.(55) Dr. Neal disturbed the integrity of all evidence found by Collete's, Kimberly's and Kristen's bodies in his examination. In addition to the Dr. Neal's actions, Fatal Justice reported that CID agents "used the toilet, made coffee in the kitchen, washed dishes in the sink, sat on the furniture, read the magazines, and played the stereo - all before evidence collection was completed." (47) One item in particular was the 'Esquire' magazine found in MacDonald's quarters. Fatal Justice reported that several CID investigators handled the magazine before lab tech Ralph Turbyfill discovered a bloody smear on the cover. The magazine was later entered into evidence and the bloody smear was used in the trial to help prove MacDonald's guilt. (47) The actions of CID investigators, Dr. Neal, and various unidentified people in the crime scene combined to contaminate the quality of evidence gathered in the MacDonald case.

Suppressed Evidence

The March 23rd hearing of the McDonald case centered on where and when to test several pieces of evidence that the defense team states casts a reasonable doubt on MacDonald's guilt in the murders of his wife and children. During the original investigation, several pieces of hair and fiber evidence in the MacDonald case were found on the bodies of the victims. Fatal Justice alleges that the prosecution withheld lab reports detailing these pieces of evidence from the defense at the time of the trial.(131) Potter and Bost obtained the Criminal Investigative Division Lab notes on the case through the Freedom of Information Act, and detailed the evidence withheld from the defense in Fatal Justice.(19) The evidence descriptions that follow are taken from Fatal Justice excerpts of the CID Lab notes.

A small brown hair in Colette's left hand.(59) This hair was tested and matched neither MacDonald nor anyone else present at the crime scene. (100)
Both Kimberly and Kristen had brown hairs found under their fingernails. CID lab reports indicate that these hairs did not match one another, nor did they match MacDonald. (59) Both hair samples remained unreported evidence.
In addition to the hair and fiber evidence on the victims, a twenty-two inch synthetic blond wig hair was found on a brush on the telephone seat near where MacDonald said he saw the blond female. (60)

The Boston Globe ran an article about the 1990 effort led by Harvey Silvergate to set aside MacDonald's conviction based on evidence suppressed at the first trial. Evidence outlined in the article includes black wool fibers on Colette's mouth, shoulder, and on one of the murder weapons, all discovered by FBI forensic expert James Frier. The black wool fibers, in addition to several other unidentified green, brown, and white wool fibers, were not matched to any clothes present in the MacDonald home, and were not disclosed by the prosecutor at the trial, according to the court filing. (1)

Fatal Justice states that during the MacDonald trial the prosecution released no evidence or lab reports to the defense. Because the prosecutor, Brian Murtagh, insisted that the lab reports held nothing to support MacDonald's claims, the judge refused to make Murtagh release the lab documents to the defense.(131) The Freedom of Information act released these reports years after the trial ended, providing MacDonald's defense team with a list of potential evidence which was not accurately released to the jury at the MacDonald trial, and therefore could form the basis for an appeal.

Fatal Justice also details evidence from witnesses which was either disparaged or suppressed at the trial. MP Kenneth Mica, the officer responding to the scene that night, stated that he saw a woman matching MacDonald's description of the female in his house standing on the street while on his way to the scene, but was ordered not to talk about his sighting. (15) Fatal Justice alleges that the woman in the floppy hat was Helena Stoekley, a Colonel's daughter who was also a drug informant for local and Army police. Stoekley admitted to wearing a blonde wig and a floppy hat the night of the murders, and told several people, including law enforcement officers, that she was present at the murders. (120)

Winding it's Way Through the Courts

Jeffery MacDonald was convicted for the murders of his wife and two children in August 1979, all the while maintaining his innocence. Numerous appeals were filed on MacDonald's behalf during the next ten years. The Boston Law Firm of Silvergate and Good took the MacDonald case pro bono, and filed a motion for a new trial in 1990, twenty years after the crime had been committed. After seven more years of legal wrangling, a three-judge panel at the Fourth Circuit Court of Appeals in Richmond, Va. overturned a lower decision and finally allowed DNA testing of the evidence.

Now, almost three decades after the murder of Colette, Kimberly, and Kristen MacDonald, Judge Fox has given the prosecutors and the defense until April 6th,1999 to decide on a possible independent laboratory. The laboratory will take the evidence provided by the FBI and use both Nuclear and Mitochondrial DNA testing to determine if the hair and fiber samples contain Jeffrey MacDonald's DNA.

With DNA, the Smallest Piece of Evidence Can Acquit

At the March 23rd hearing Judge Fox granted Scheck and the MacDonald defense team their wish. The FBI will open and arrange on slides at least seventeen hair, fiber, and blood evidence samples and send them to an independent lab capable of performing Nuclear, Mitochondrial, and Short Tandem Repeats DNA testing.

DNA is short for Deoxyribonucleic Acid. DNA is a genetic fingerprint, consisting of twenty-three pairs of chromosomes that determine all human characteristics, from eye color to height and skin tone. DNA is an individual's genetic fingerprint; the only people who share identical DNA are identical twins. DNA is fully present in every cell in the body except the sex cells, and can be extracted and tested from bodily fluids, hair, and bone.

Nuclear DNA testing extracts and uses the nucleus of the cell to classify the DNA and match it to a suspect specimen. Nuclear DNA is a very reliable test, since the only people sharing Nuclear DNA are identical twins, but it can generally only be performed on fresh samples of blood, saliva, and hair with the root attached. The problem with Nuclear testing on evidence in the MacDonald case is that the evidence samples are almost three decades old, and some hair evidence is without a root, the part of a hair that contains the nucleus.

A better test for some of the MacDonald evidence involves Mitochondrial DNA, which is extracted from the part of the cell surrounding and absent the nucleus. A famous case involving Mitochondrial DNA involved the remains of the Unknown Vietnam Soldier. Though some argued that remains should not be disturbed to preserve the truthfulness of the monument, in 1998 the soldier's skeletal remains were removed and tested. They were found to be the remains of Air Force 1st LT Michael Blassie. According to the Armed Forces Institute of Pathology (AFIP) Online Newsletter, the Mitochondrial DNA test was performed with reference samples from Blassie's mother and one of his sisters.(1) The FBI laboratory also analyzes Mitochondrial DNA, and states in it's policy for submitting DNA evidence that "Mitochondrial DNA analysis may be applied in forensic cases where the amount of extracted DNA is very small or degraded, as in tissues such as telogen hairs, old bone, and teeth." (Saferstein, 614)

Terry Melton of Mitotyping Technologies in State College, PA specializes in Mitochondrial DNA (mtDNA) testing, and provided information on the process on the Mitotyping Technologies website. Melton states that, "the likelihood of recovering mtDNA in small or degraded biological samples is greater than for nuclear DNA because mtDNA molecules are present in hundreds to thousands of copies per cell compared to the nuclear complement of two copies per cell."(1) The degraded blood and hair samples in the MacDonald case will be more easily typed with mtDNA testing than conventional Nuclear DNA testing. Though it will take up more of the evidence to test, Melton states that "a single mtDNA analysis could be performed on a 0.5-2 cm hair fragment." (1) This type of test could be useful for the small hairs found on Colette, Kimberly and Kristen's hands.

Mitochondrial DNA is inherited maternally, so deceased individuals, like both the victims and the defense's likely suspects, can be typed using samples taken from maternal relatives. The only drawback to this test would be a possible inconclusive or false positive result for MacDonald if he shared a maternal relative with one of the intruders.

The third type of DNA testing which could be used in the MacDonald case is Short Tandem Repeats (STR) analysis. According to Criminology, An Introduction to Forensic Science, by Richard Saferstein, "STRs are locations on the chromosome that contain short sequence elements that repeat themselves within the DNA molecule." (420) STRs are found in large numbers in the human genome, and Saferstein notes that since both the repeating sequence and the entire strand is relatively short in length, STRs are "much less susceptible to degradation and may often be recovered from bodies and stains that have been subject to extreme decomposition."(420) STR testing would be especially useful due to the age and amount of evidence available to the laboratory.

A Call For Reform

The MacDonald case is not the first DNA case Scheck has argued. Although Scheck may be best known for his work on the O.J. Simpson case, he is also co-founder of the Innocence Project, a Yeshiva University organization that works to use DNA evidence to exonerate wrongly convicted felons. In a Frontline Interview, Scheck states that "there's more and more of these cases because DNA evidence can clarify what was previously ambiguous or frankly misleading to juries in terms of biological testing."(3) According to Scheck, thirty-five guilty verdicts have been overturned because of new DNA evidence. (2)

If the amount of evidence in question is large enough be accurately tested and the results prompt Judge Fox to call for a retrial, the MacDonald case may be the biggest chance to showcase cutting edge DNA classification technology since the O.J. Simpson trial. If the evidence exonerates MacDonald, it will be a powerful wake up call to all agencies, including the FBI, to strengthen training and standards so that innocent people will not be convicted in the future due to faulty evidence classification and examination.

Works Cited

"AAFDIL Analysts Match DNA to Clinch Blassie Identification" AFIP Online Newsletter Vol 156 No. 3 (1998) Online. Internet. 24 Mar. 1999. Available http://www.afip.org/blassie.htm

Gelbspan, Ross. "New Allegations in MacDonald Case Lawyers: Prosecutor Hid Evidence." The Boston Globe 20 Oct. 1990: A1

Melton, Terry. "About Mitochondrial DNA." Mitotyping Technologies (1998): 1 p. Online. Internet. 24 Mar. 1999. Available http://mitotyping.com/aboutmt.html

Potter, Jerry A., Fred Bost. Fatal Justice. New York: W.W. Norton and Company, 1995.

Saferstein, Richard. Criminalistics. 6th ed. New Jersey: Prentice Hall, 1998.

"What Jennifer Saw: Barry Scheck." Frontline/WGBH (1998): 8 p. Online. Internet. 24 Mar. 1999. Available http://www.pbs.org/wgbh/pages/frontline/shows/dna/interviews/scheck.html