NEW ALLEGATIONS IN MACDONALD CASE
LAWYERS: PROSECUTOR HID EVIDENCE
By Ross Gelbspan, Globe Staff

10/20/1990
Section: NATIONAL/FOREIGN


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.

Eleven years ago the Princeton graduate, a former special operations captain and Army doctor, was sentenced to three consecutive life sentences for their murders.

Yesterday a team of Boston lawyers filed a suit charging that a federal prosecutor illegally suppressed evidence that points strongly toward MacDonald's innocence.

The case, 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 itch.

Defenders 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.

Antagonists 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.

Now a 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 of events.

The evidence 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.

"This 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.

"Had 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.

The appearance 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.

MacDonald's 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.

Bernard 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."

"In my view, this material is a definite smoking gun," added Segal, who is a law professor at Golden Gate University Law School in San Francisco.

MacDonald, 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 own evidence."

"I 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.

Frank Kelly, a spokesman for the Justice Department, declined to comment on the allegations.

Murtagh, 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.

- 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.

- Two 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

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."

MacDonald 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.

When 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.

MacDonald 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.

Entering 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 murders.

One of 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.

Two neighbors 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.

Mitchell, 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.

Both 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.

At least 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.

But Judge 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.

The government's 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.

Murtagh's 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 intruders."

But that 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 hairs.

A pretrial 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 suppressed.

Following 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.

In 1982, 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.

She added 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.

During 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.

Investigators 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 house.


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.' "

Stoeckley, who was pregnant at the time of the interrogation, said that after her baby was born, she would come forward "to drop a bombshell."

"Capt. 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 told Gunderson.

But Stoeckley 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.

"This murder case as laid out in the courts has been an improvised fairy tale," Bost said in a telephone interview.

McGinniss, 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:

- When 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 family.

- Instead 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 Frier.

Unknown 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.

- Before the trial began, Murtagh asked a law clerk for a memo which defense lawyers say provides the "smoking gun" of Murtagh's illegal intentions.

In his 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.

Murtagh's 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?"

Finally, Murtagh asked: "At what point in time must exculpatory materials be disclosed to the defense in a criminal proceeding?"

The memo, according to Silverglate, provides "clear evidence that the prosecutor intentionally and cynically kept this exculpatory material out of the trial."

"His 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."

- The 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.

"How 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.

"Murtagh's 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 thing."


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