ALLEGATIONS IN MACDONALD CASE
LAWYERS: PROSECUTOR HID EVIDENCE
By Ross Gelbspan, Globe Staff
Could Dr. Jeffrey MacDonald be innocent after all?
Twenty years ago his wife and two young daughters were found brutally
stabbed and clubbed to death in their Fort Bragg, N.C., home.
years ago the Princeton graduate, a former special operations captain
and Army doctor, was sentenced to three consecutive life sentences
for their murders.
a team of Boston lawyers filed a suit charging that a federal prosecutor
illegally suppressed evidence that points strongly toward MacDonald's
made famous by a phenomenally successful 1983 book, "Fatal
Vision," by Joe McGinniss, as well as by two made-for-television
movies, has lingered in the national consciousness like a persistent
of the articulate physician, who is now 47, have continued to claim
he was railroaded by a zealous, career-minded prosecutor who fought
successfully to exclude testimony that would have persuaded the
jury of MacDonald's innocence.
such as McGinniss have concluded that MacDonald is a deeply flawed
individual, an adulterer who murdered his wife in a fit of rage
-- triggered perhaps by his consumption of amphetamine pills --
and then deliberately murdered his daughters, staging the scene
to make it appear that all three were killed by a Manson-like gang
of drug-crazed intruders.
legal team headed by Boston attorney Harvey Silverglate is contending
that newly released Justice Department documents prove that Brian
Murtagh, the government's prosecutor, illegally suppressed several
pieces of physical evidence -- including synthetic hairs and wool
fibers found at the murder scene -- that support MacDonald's version
was made public yesterday with the filing of the new appeal. Had
it been presented to the jury 11 years ago, Silverglate said, it
would have created substantial doubts about MacDonald's guilt.
is a clear case of obstruction of justice. There is no other way
to interpret the materials that we received from the Justice Department,"
said Silverglate, who asked the court to set aside MacDonald's conviction
in papers filed in the US District Court for the Eastern District
of North Carolina.
the prosecutor made this evidence available during the trial, as
was his legal responsibility, the court would have had to admit
all kinds of exculpatory testimony which was never allowed to be
presented," added Phillip G. Cormier, a member of Silverglate's
legal team, which received the material through several Freedom
of Information Act requests.
of misconduct on the part of the prosecutor has attracted to the
defense team Roger Spaeder, a former Justice Department prosecutor
now practicing in Washington, as well as Alan Dershowitz of Harvard
Law School. Spaeder is cochairman of the American Bar Association
committee on complex crime litigation.
attorneys say the newly released material constitutes "smoking
gun" proof that Murtagh deliberately set out to suppress evidence
that would have dramatically changed the course of MacDonald's trial.
L. Segal, the attorney who represented MacDonald in his 1979 murder
trial, said in a telephone interview that the new material "confirms
what we deeply suspected in the early days of the case. The government
was engaged in a calculated effort to hide the facts from us."
my view, this material is a definite smoking gun," added Segal,
who is a law professor at Golden Gate University Law School in San
in a telephone interview from the Terminal Island federal prison
in California, said he is very hopeful of gaining his freedom because
yesterday's filing "differs dramatically from earlier appeals.
In this case, we're not relying on our witnesses but the government's
think that for a few years after the murders Murtagh truly believed
I was guilty. But at some point, certainly by the spring of 1979
if not before, there's no doubt he made a deliberate decision to
keep evidence from the court," he said.
Kelly, a spokesman for the Justice Department, declined to comment
on the allegations.
currently an assistant US attorney in Washington, declined to be
interviewed for this story. But in an interview broadcast last night
on the ABC-TV news program "20/20," he maintained that
MacDonald's original attorneys were given the opportunity to review
all the evidence.
THE NEW EVIDENCE
The motion for a new trial hangs on several items released by the
Justice Department under the Freedom of Information Act request:
- A letter
from Murtagh to the Army's crime lab shortly before the 1979 trial
asking for two copies of laboratory notes on the lab's investigation
of the murders -- one for himself and one for MacDonald's defense
team. According to the court papers filed yesterday, Murtagh never
gave defense attorneys their copy of the notes.
from the Army's crime laboratory indicate that blond synthetic hairs,
apparently from a wig, were found at the crime scene. The hairs
do not match any other items in the house. In addition, several
other human body and head hairs, which could not be matched to any
members of the MacDonald family, were never revealed by the prosecution,
according to yesterday's filing.
- A second
set of lab notes from an FBI forensic chemist indicate that black
wool fibers were found around the mouth and hand of MacDonald's
wife, Colette, as well as on a wooden club used in the murders.
Neither the presence of the black wool nor that of several other
unidentified green, brown and white wool fibers at the crime scene
was ever disclosed by the prosecutor, according to the court filing.
None of the fibers match any objects in the home.
- A memo
indicates that shortly before MacDonald's trial began, Murtagh asked
a law clerk to research whether he was obligated to release exculpatory
materials and when he had to release them. Murtagh also asked the
clerk whether he was permitted to withhold laboratory notes while
giving the defense only summary reports that omitted some findings
contained in the notes.
years after the trial concluded, Murtagh instructed the Justice
Department's Freedom of Information Office to withhold all material
on MacDonald and on a woman MacDonald claimed was in his home when
the murders were committed. MacDonald had already been convicted
and the woman had been ruled irrelevant to the case.
MacDonald's version of events has not changed since the day of the
murders. He claims that around 3 o'clock on the morning of Feb.
17, 1970, he was asleep on a couch in the living room when he was
awakened by the screams of his wife from the master bedroom. MacDonald
said he saw three men -- two white, one black -- and a white woman,
who was wearing a floppy hat and white boots and apparently holding
a candle. The woman, he said, was chanting, "Acid is groovy.
Kill the pigs."
claims he struggled with the intruders, one of whom, he said, had
an Army fatigue jacket with E-6 sergeant stripes on his arm, before
they knocked him unconscious.
he woke up, he was bleeding from a cut on his head and a puncture
wound on his chest. He was subsequently treated for a partially
collapsed lung resulting from the puncture.
claims he went to the master bedroom, where he found his wife's
mutilated and bloody body on the floor. The word "PIG"
was written in blood on the headboard of her bed.
the two other bedrooms, he said, he found his 5-year-old daughter
Kimberly and his 2-year-old, Kristen, also murdered. It was then
that he called the Army's Criminal Investigation Division to report
the first military policemen to answer the call, Kenneth Mica, said
later that he saw a woman standing several blocks from the house
who matched the description MacDonald gave of the woman in the house
during the murders.
and several acquaintances told MacDonald's initial lawyers that
the woman, Helena Stoeckley, told them she had been present at the
crime. Prince Everett Beasley, a Fayetteville, N.C., police officer
who had used Stoeckley as an informant in local drug cases, has
said publicly that at about 11 p.m. the night before the murders,
he saw Stoeckley, dressed in white boots, blond wig and a floppy
hat, along with her boyfriend, Greg Mitchell, and a man wearing
an Army fatigue jacket with E-6 sergeant stripes.
AN ALLEGED CONFESSION
Beasley said that the day after the crime, Stoeckley told him she
was in the house at the time of the murders. She recalled a rocking
horse in one of the children's bedrooms. Beasley said he called
the Army's Criminal Investigation Division almost immediately to
suggest that they interrogate Stoeckley and her companions. The
Army never followed up on his suggestion.
who was also seen in Stoeckley's company by several witnesses before
and after the murders, later told several acquaintances, including
three persons at a narcotics treatment facility, that he murdered
MacDonald's wife and children.
Judge Franklin T. Dupree Jr. and Murtagh dismissed Stoeckley's reliability
as a witness, citing her heavy drug use and the inconsistency of
her statements. During the trial, she denied any involvement with
the murders. Later, she attributed that testimony to the fact that
the government would not guarantee her immunity from prosecution.
seven persons offered to testify that either Stoeckley or Mitchell
had confided their involvement in the crime with them. Several others
were prepared to testify that they saw Stoeckely and others on the
night of the m000106, including a neighbor who said he saw Stoeckley
with a man wearing an army jacket bearing E-6 sergeant stripes.
Dupree did not admit the testimony of these witnesses, saying in
essence that such testimony was irrelevant because none of the forensic
evidence gathered by investigators at the scene indicated the presence
of outsiders in the home.
admittedly circumstantial case against MacDonald was based on the
fact that fibers from MacDonald's pajama top were found in the bedroom
near his wife's body, as well as on the club used in the murders.
The government contended that if MacDonald had fought with the intruders
as he claimed, the threads should have been found in the living
room where he slept that night. MacDonald contended that the pajama
threads got into the bedroom when he covered his wife's body with
the pajama top. Prosecutors also cited bloodstains from various
family members in various rooms to construct a theory of how, and
in what sequence, MacDonald committed the murders.
co-prosecutor, James Blackburn, told the jury, "You could throw
the whole shooting match away except for two pieces of evidence"
-- the wooden club and the fiber from MacDonald's pajama top.
RULING AGAINST APPEAL
In his ruling against a subsequent appeal by MacDonald, Dupree emphasized
the lack of any forensic evidence supporting MacDonald's version
of events. Dupree wrote that the government's theory of MacDonald's
guilt was supported by the "lack of any physical evidence .
. . that he had been attacked in his living room by drug-crazed
was before anyone except Murtagh knew of the existence of forensic
material, such as the black wool, the synthetic hair and other unidentified
hairs and fibers that could have placed Stoeckley, Mitchell and
others in the home, said John J. Murphy, a paralegal with Silverglate's
firm, who discovered a forensic chemist's notes on synthetic blond
memo prepared for the prosecution concluded that unmatched hairs
found in Colette MacDonald's hand "would aid the defense."
Those hairs were among the evidence that Murtagh is alleged to have
MacDonald's conviction, suggestions continued to surface that the
murders had been committed by members of a satanic cult, all of
whom used and trafficked in narcotics and all of whom were upset
with MacDonald for his unsympathetic and punitive attitude toward
drug users in the military.
Stoeckley told Ted Gunderson, a former FBI agent and private investigator,
in a videotaped interrogation that she had not testified to her
knowledge of the crime because she feared reprisals from other cult
members and because the government refused to grant her immunity.
that members of her group were angry at MacDonald for his refusal
to prescribe methadone for heroin users and for his role in having
several GIs expelled from the army for drug use.
the interrogation, Stoeckley detailed the activities and movements
of the various members of the group inside the MacDonald house during
the murder, although she declined to name them. Throughout her time
in the house, she said, she held a lighted candle.
at the crime scene found candle wax on the floor and furniture of
the MacDonald home that did not match any of the candles in the
DEATH OF THE CONFESSOR
She also said that on the night of the murder she wore a blond wig,
white boots, a floppy hat and a black vest. "I remember,"
she told the investigator, "I was chanting: 'Acid is groovy.
Kill the pigs. Hit him again.' "
who was pregnant at the time of the interrogation, said that after
her baby was born, she would come forward "to drop a bombshell."
MacDonald should be freed once and for all and not have to go through
what he's been going through for the past several years," she
died several months later, apparently of cirrhosis brought on by
drug and alcohol use. Mitchell died in 1982 from the effects of
alcoholism, according to Fred Bost, a retired sergeant major who
was stationed at Fort Bragg at the time of the murders and is writing
a book on the case.
murder case as laid out in the courts has been an improvised fairy
tale," Bost said in a telephone interview.
who concluded in his best-selling book that MacDonald was guilty
of the murders, declined to discuss the new findings with the Globe.
OBSTRUCTION IS ALLEGED
Murtagh, a US Army attorney who joined the Justice Department in
order to prosecute the MacDonald case, not only concealed the contents
of the lab notes but took extra steps to cover up his actions, according
to allegations in yesterday filing:
Murtagh put an Army forensic laboratory technician on the stand,
he questioned her only about various blood stains in the house.
The prosecutor never revealed that the technician, Janice Glisson,
had analyzed hair samples and discovered the presence of synthetic
blond wig hairs inside the house, as well as other human head and
body hairs that could not be matched to any member of the MacDonald
of calling FBI forensic expert James Frier to testify in the case,
Murtagh persuaded defense attorney Segal to waive Frier's appearance,
saying the expert would testify only about some uncontroversial
fibers from a bedroom throw-rug, according to Segal's affidavit.
In order to save time, Segal agreed to waive the chance to cross-examine
to the court at the time, Frier had discovered the unexplained black
wool fibers on Colette MacDonald's mouth area and arm, as well as
on a wooden club used in the murders. Stoeckley has said that she
wore black on the night of the murders. Frier's analyses of several
other green, brown and white fibers that could not be matched to
any items inside the house were never revealed by the prosecution.
the trial began, Murtagh asked a law clerk for a memo which defense
lawyers say provides the "smoking gun" of Murtagh's illegal
request, the prosecutor asked law clerk Jeffrey Puretz to research
the constitutional requirements for disclosing exculpatory material.
Under a case known as Brady v. Maryland, the prosecution is legally
bound to turn over to the defense any evidence that might support
a defendant's claim of innocence.
second question, in the eyes of his adversaries, was even more revealing.
"Need the detailed data of a lab report, as distinguished from
the conclusions of the report, be disclosed, where such conclusions
have been disclosed and are nonexculpatory?"
Murtagh asked: "At what point in time must exculpatory materials
be disclosed to the defense in a criminal proceeding?"
according to Silverglate, provides "clear evidence that the
prosecutor intentionally and cynically kept this exculpatory material
out of the trial."
question about the requirements and the timing of the release of
exculpatory material is the give-away," Silverglate added,
saying: "Why would he plan in advance of the trial to see how
late he could wait? Only if he wanted to keep his option open until
the very end. If any mention of the evidence surfaced, he could
disclose the material at the last moment. If not, he could keep
the material suppressed indefinitely."
final document cited by MacDonald's attorneys is a 1981 letter from
Murtagh to the Freedom of Information office of the Justice Department.
Almost two years after MacDonald was convicted, Murtagh requested
that any Freedom of Information Act requests "concerning Jeffrey
R. MacDonald or Helena Stoeckley be denied" since they are
subjects of an ongoing investigation.
could he request that the material be withheld on the basis of ongoing
investigations? MacDonald had already been convicted and Stoeckley
had already deemed been irrelevant to the case," said Segal,
MacDonald's trial lawyer in 1979.
motivation is the same one that propels all petty bureaucrats,"
Segal added. "They're given power that they don't deserve.
They are inadequately supervised. With that power, they run amok
over the lives of other people. In this case, Murtagh wanted this
case as a career- builder. That's what led him to do this terrible
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