THE DISINTEGRATION OF AMERICAN JUSTICE
Two Case Studies in Government Malfeasance

By Edward Zehr


May 26, 1997 Recent irregularities in the handling of evidence by the FBI, described in a report issued by the inspector general of the Justice Department, are having repercussions on cases thought to have been settled long ago. Perhaps the most striking example of this to date is the case of Dr. Jeffrey R. MacDonald, an Army surgeon with an ivy league background who was convicted of murdering his wife and two small children. The case attracted national attention when Joe McGinniss wrote a best-selling book about it titled Fatal Vision. The unraveling of the case began with an article by Laurie P. Cohen that appeared in the April 16 Wall Street Journal. In the article Cohen revealed that FBI hair-and-fibers examiner Michael P. Malone had apparently submitted two fraudulent affidavits. Then, in an article appearing in the May 26 New Republic, Ruth Shalit disclosed that one of the affidavits, regarding "a strand of synthetic blond fiber... has become the basis of a habeas petition to gain a new trial for MacDonald." It seems that Malone had sworn that such material is not used in making wigs, knowing full well that it is used for this purpose. This is a crucial point in that MacDonald claimed that his family had been attacked by "a black man in an Army field jacket with sergeant's stripes, two white men and a woman in a blond wig and floppy hat."

THE CASE AGAINST MACDONALD

MacDonald, a Green Beret surgeon, was living on base with his family at Fort Bragg, North Carolina when, on February 17, 1970, military police at the base received a call from him saying, "We've been stabbed. People are dying... I may be dying." When military police arrived at the apartment they found MacDonald's wife stabbed to death in the master bedroom and his two daughters hacked to death in their beds. They had been attacked with "an ice pick, a Geneva Forge knife and a wooden club later found in the backyard." MacDonald was unconscious, but alive. He was taken to a hospital where he later told police that his family had been attacked by drug crazed hippies who rampaged through his apartment carrying a candle and chanting "acid is groovy" as they slaughtered his family. MacDonald said that he had been sleeping on the living- room sofa when his family was attacked. He claimed that he was beaten and slashed by three men until he passed out. He was treated "for multiple head contusions, a collapsed lung, as many as seventeen ice-pick wounds and at least four knife wounds, including one so deep it exposed his stomach muscle..." The Army's Criminal Investigation Division did not believe MacDonald's story. For one thing, they thought the crime scene was a bit too tidy to have been the scene of a desperate struggle, citing a flowerpot that was still upright. They also cited forensic evidence which they had turned over to the FBI. "A bloody strand of Colette's head hair entwined with one of MacDonald's pajama fibers" was taken to be evidence that MacDonald had struggled with his wife. MacDonald's bloody footprint in the doorway of his daughter's bedroom was said to prove that he had paused there as he carried his wife's body into the master bedroom. But the fact that two of MacDonald's pajama fibers were found on the murder club was said by Lead prosecutor James Blackburn to be the "most important" evidence of all.

MacDonald's defense was plagued by the lack of certain evidence as well. Investigators said none of MacDonald's pajama fibers or blood were found in entrance to the hallway where he claimed to have struggled with the intruders. The jurors, although troubled by the seeming lack of motive, were convinced by the absence of blood where MacDonald said the struggle had taken place and by the lack of evidence of intruders. After deliberating for six hours they convicted MacDonald of triple murder. He was sentenced to three life terms to be served consecutively.

HOW THE CASE WAS RIGGED

Ms. Shalit notes that MacDonald's attorneys made repeated requests for "investigative reports, witness statements, handwritten lab notes and other unfiltered primary material-- that would substantiate the government's damning interpretation of the evidence collected at the crime scene."

The government attorney in charge of the case, Brian Murtagh, refused to turn over any documentation to the defense and Judge Franklin T. Dupree would not require him to do so. Any discrepancies that might turn up later would be grounds for reversal of the verdict, he assured the defense team. MacDonald's attorneys were unable to obtain the documents until thirteen years had passed and Congress finally compelled disclosure under the Freedom of Information Act. What they found is quite revealing. The typewritten FBI summaries had omitted much of the significant information that was contained in the handwritten notes of the investigators. A substantial amount of this information contradicted the allegations made by the prosecution during the trial. For example, that bloody footprint found in the doorway of his daughter's bedroom was explained by " eyewitness accounts that MacDonald, as he was being carried out of the apartment on a gurney, stumbled off the gurney with bare, bloody feet at precisely the point where the footprints were found," according to Shalit. Jurors had been told of pajama fibers, entwined with a hair, of Mrs. MacDonald being found on a bedspread. They were not told that investigators had "examined debris from the bedspread three times in 1970 and found none of Colette's bloodstained hair." As for the absence of blood in the hallway where MacDonald claims he struggled with the assailants who slashed him, "The notes," says Shalit, "reveal that, when Robert Shaw of the Army's Criminal Investigation Division first got to the apartment, he reported a "pile" of blue fibers and a spot of blood (diagnosed as probably type B, MacDonald's type) at precisely the spot in question." Not only had this information been concealed from the defense lawyers, the prosecution represented the absence of blood at this location as a major discrepancy in MacDonald's story. In other words, they deliberately and knowingly framed the defendant with perjured testimony. Jurors later cited this point as the main reason they were unable to believe MacDonald's story. As for the "most important" evidence in the case, the "pajama fibers" that the prosecution claimed were found on the club used in the murders, It turns out that what the lab technicians who examined the weapon actually found were "two strands of black wool, wool that didn't match any clothing in the apartment," says Shalit. Jerry Allen Potter and Fred Bost wrote in their book Fatal Justice regarding the major allegations made by the prosecution, "We found each one grossly short of proof, and many of them intentionally distorted. We would be hard-pressed to mention a single important item that had not been somehow manipulated to throw suspicion away from intruders who left substantial evidence in the home, in the victims' hands, and on and around the bodies." It gets worse. One piece of evidence withheld from the defense that later turned up in the FOIA documents is a confession by Helena Stoeckley, a hippie from nearby Fayetteville, who confessed to participating in the murders. Her confession was confirmed by a polygraph test. According to Shalit, Stoeckly was a "drug addict and self-styled 'witch' who admitted to owning a blond wig, floppy hat and ice pick; who was spotted by five eyewitnesses in the vicinity of the MacDonald home, in several instances in the company of two white males and a black male in an Army field jacket, on the night the murders occurred." Judge Dupree ruled that the confession was "irrelevant" because, he maintained, there was no forensic evidence linking Stoeckly to the murder scene. MacDonald has recently appeared on a number of TV talk shows, declaring his innocence and accusing the government of malicious prosecution. The attempts by MacDonald's attorneys to win him a new trial have been stymied thus far by "reforms" to the writ of habeas corpus passed by a craven, limp-wristed Congress following the Oklahoma City bombing. Shalit writes, "it is no longer enough for the defense to show that crucial evidence was suppressed by the government; the burden is on the defense to show that government agents did so deliberately.

Published in the May 26, 1997 issue of The Washington Weekly
©1997 The Washington Weekly
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