Fiber Analysis Emerges As New Issue in Murder Case
Laurie P. Cohen
It has been nearly two decades since former Army surgeon Jeffrey
MacDonald was convicted of murdering his wife and two daughters
in their Fort Bragg, N.C., home. This is the story that was told
in Joe McGinniss's best-seller "Fatal Vision," dramatized
on television, chronicled in hundreds of newspaper articles and
examined in a dozen judicial opinions.
warrants attention again is quite a different story: one that involves
a longtime star of the once-fabled FBI Laboratory and a Boston criminal-defense
lawyer who is still seeking to overturn Dr. MacDonald's conviction.
Bureau of Investigation scientists gave distorted testimony to meet
prosecutors' needs and did sloppy analytical work in some cases,
according to a stinging 500-page Justice Department report.
the truth about Dr. MacDonald's guilt or innocence, a close examination
of his long-moribund case raises serious concerns about the FBI
crime lab, which is already under scrutiny for allegedly biasing
its findings to favor prosecutors over criminal defendants.
the Justice Department inspector general issued a long-awaited report
on the Washington-based lab; while very critical of the accuracy
of some of its work, the inspector general said he could find no
instances of perjury or fabricated evidence. The report made no
mention of FBI Special Agent Michael P. Malone's pivotal role in
keeping Jeffrey MacDonald behind bars, but it rebuked him sharply
in an unrelated matter.
saga was already old and exceedingly tired when lawyer Harvey Silverglate
took over the appeal in 1989, at Dr. MacDonald's request. The two
men had been contemporaries at Princeton University in the early
1960s but had pursued very different callings. Mr. Silverglate,
scruffy and left-leaning, had attended Harvard Law School and then
gone on to defend draft resisters, student protesters and Black
Panthers. More straitlaced, Jeffrey MacDonald had obtained a medical
degree, joined the Army and become a Medical Corps captain. "If
we had met Jeffrey in 1968, we would have hated him and he would
have hated us," says Elsa Dorfman, Mr. Silverglate's wife.
in 1989, the MacDonald case intrigued Mr. Silverglate. From the
start, Dr. MacDonald had claimed that his family had been clubbed
and stabbed to death by a drug-crazed band of hippies, led by a
woman wearing dark
clothing, a floppy hat and a long, blond wig and chanting "acid
is groovy, kill the pigs." He said he had been awakened by
the screams that night in February 1970 and been stabbed -- though
mostly superficially -- by the assailants. But physical evidence
of any intruders was scant, and neither a jury nor, ultimately,
one-time supporter Joe McGinniss, had believed him. All his appeals
had failed, and he was serving his life sentence in a Sheridan,
in the voluminous appellate-court file were documents that Mr. Silverglate
felt were tinged with mystery and promise. Dr. MacDonald's lawyers
hadn't been aware of them at trial, and they had only been uncovered
by a later team of defense lawyers through a Freedom of Information
were handwritten lab notes made by a former Army investigator, whose
cryptic jottings suggested that she had found a 22-inch blond synthetic
fiber in a hairbrush in the MacDonald home shortly after the murders.
Could this be a hair from the blond wig of the alleged hippie leader?
Why was it withheld from the jury? The questions were tantalizing
enough to draw Mr. Silverglate into the case, unpaid.
out of a townhouse overlooking Boston Harbor, he quickly dug into
the evidence and by October 1990 was ready to bring the case back
to court. He asked U.S. District Judge Franklin Dupree, the same
Fayetteville, N.C., judge who had tried the case in 1979, to grant
a new trial. His argument: There now was new evidence -- the blond
hair mentioned in the investigator's lab notes and some additional
dark fibers that might have come from an assailant's clothing. These,
he claimed in his court papers, potentially corroborated Dr. MacDonald's
story but had been suppressed by the government during his trial.
Mr. Silverglate suggested, might have belonged to Helena Stoeckley,
who at the time of the murders was a 19-year-old Fayetteville resident
and heavy drug user who had admitted that she owned and wore a blond
wig and at times had confessed to being involved in the crime. (Other
times, she said she took too many drugs to remember -- and the judge
had ruled her testimony inadmissible.) She died in 1983.
these materials for the government, the prosecution in 1990 brought
in Special Agent Malone, then the top hair-and-fiber examiner in
the Federal Bureau of Investigation crime lab and a near-legend
among prosecutors for his powerful performances as an expert witness.
the evidence, Mr. Malone discovered two additional blond strands,
one 24 inches and one 9 inches long. He determined that the dark
fibers were ordinary household debris and that the synthetic hair
-- made of a substance known as saran -- came from dolls that had
been owned by the MacDonald girls. He further asserted in an affidavit
that the saran fibers were "not consistent with the type of
fibers normally used in the manufacture of wigs."
defense lawyers pointed out that the government hadn't proved the
synthetic fibers actually came from dolls, Mr. Malone offered another,
more detailed, affidavit, dated May 21, 1991. In it, he said he
had consulted "numerous standard references which are routinely
used in the textile industry and as source material in the FBI Laboratory"
and that "none of these standard references reflect the use
of saran fibers in cosmetic wigs." A reason, he suggested,
was that saran couldn't be made in the "tow" -- or clumped
-- form essential to the manufacture of human wigs.
up by saying, "In the absence of any evidence to the contrary,
I conclude that the ... blond saran fibers in this case are not
cosmetic wig fibers."
willingness to reach such an unequivocal conclusion was a hallmark
of his work, and it had already made him a controversial figure
among forensic scientists. He didn't respond to repeated requests,
by phone and in writing, to comment for this article.
imposing at 6 feet 3 inches and a muscular 200 pounds, Mr. Malone
had joined the FBI in 1970 and entered the bureau's crime lab four
years later. Prosecutors quickly came to love him, or at least the
testimony he provided. Though forensic specialists maintain that
hair testimony is seldom definitive -- and is far less reliable
than fingerprints -- Mr. Malone consistently projected a higher
degree of certainty.
Street Journal review of more than a dozen of his past cases shows
that, in trial after trial over a period of years, Mr. Malone gave
nearly the identical assurances to juries about the reliability
of his hair identifications.
Regardless of the year, he routinely said he had examined the hairs
of "10,000 people" in his career. Then he asserted that
there had been only two occasions -- later he said three -- "in
which the hair from two different people was so similar that it
couldn't be distinguished."
was so effective in winning convictions that Florida state prosecutors
would bypass the more-cautious state hair examiners and rely on
the FBI instead, according to Deborah Lightfoot, a crime-lab examiner
for the Florida Department of Law Enforcement.
were already being raised about whether his self-assuredness was
justified. In both 1987 and 1988, Florida appellate courts overturned
guilty verdicts -- citing insufficient evidence -- in cases in which
Mr. Malone had testified for the prosecution. In the 1988 case,
Mr. Malone had told jurors that the chances were "almost nonexistent"
that hairs found on the victim originated from anyone other than
the defendant. In ordering the defendant's acquittal and immediate
release from prison, the court wrote: "We do not share Mr.
Malone's conviction in the infallibility of hair-comparison evidence.
Thus we cannot uphold a conviction dependent on such evidence."
in 1988, with Ms. Lightfoot working for the state, defense lawyers
took the unusual step of calling her as a witness in a separate
murder case involving Mr. Malone's testimony. She told the jury
that a particular hair couldn't be linked definitively to the defendant,
despite Mr. Malone's confident assertion that it could. She had
never testified for a defendant before. Nonetheless, James A. Duckett,
a former police officer who still says he is innocent, was convicted
and sentenced to death. The defense has since won the right to get
the hair retested.
scientists have long griped about Mr. Malone's testimony, which
some say gives hair testing a bad name and endangers defendants'
rights. "I've been concerned over the years that Malone tends
to overstate evidence and presents things in a stronger fashion
than I believe is justified," says Peter DeForest, a New York
hair-and-fiber expert for both prosecutors and defense attorneys.
Edward Blake, a Richmond, Calif., forensic scientist uninvolved
in any of Mr. Malone's cases, goes so far as to call Mr. Malone's
claims of near-certainty "fraudulent." Dr. Blake says
hair evidence can't be precise because "there's too much variation,
and it's all too subjective."
FBI crime lab brought Mr. Malone into the highest profile, most
sensitive matters, such as the investigation of the 1985 murder
of U.S. drug-enforcement agent Enrique Camarena in Mexico. And former
FBI colleagues say Mr. Malone's role in cracking the Camarena case
won him a bonus and a letter of commendation from the Justice Department
in 1989. Mr. Malone's hair-and-fiber testimony in the case was credited
with winning the conviction of a wealthy Honduran businessman in
didn't respond to phone calls and written questions related to Mr.
Malone. It couldn't be determined whether the agency was aware of
concerns about Mr. Malone's work as far back as the 1980s, though
some former agents say the FBI doesn't keep close track of their
court testimony in most routine cases.
21, 1991, the same day that Mr. Malone provided his affidavit in
the MacDonald appeal, he also testified in a case that would call
his credibility into question more sharply than any previous trial.
The Warren County, Pa., case involved the 1988 murder of a 33-year-old
woman, Kathy Wilson. The defendant, Jay William Buckley, had been
accused by an alleged accomplice. Hair evidence was sent to the
New York State Police Crime Laboratory for evaluation because Mrs.
Wilson was from upstate New York.
Oakes, the examiner there, reported that she was unable to conclude
that any of the hair belonged to Mr. Buckley. Lacking fingerprints
or other physical evidence, District Attorney Joseph Massa Jr.,
says he decided to call upon the FBI's top hair-and-fiber man, Mr.
Malone, to lend his expertise.
the May 1991 trial went badly for the prosecution, with the alleged
accomplice admitting hundreds of times that he had lied or changed
his story. But Mr. Malone seemed to turn the tide. In two days of
testimony, he tried hard to link Mr. Buckley to the murder. At one
point, Mr. Malone said he believed there was a "very, very
strong possibility" that hair in Mrs. Wilson's van came from
Mr. Buckley, who police had said was driving the vehicle. In a devastating
blow to the defense, he further testified that a hair he believed
was Mrs. Wilson's was found on a white blanket in the van belonging
to Mr. Buckley's alleged accomplice. In contrast, Ms. Oakes, the
New York State examiner, had found what she termed "unaccountable
dissimilarities" between the victim's hair and the hair in
was good reason for Ms. Oakes's conclusion: It turned out that the
evidence had been mislabeled and that Mr. Malone had actually tested
a plain white blanket belonging to Mr. Buckley that had never been
near the crime scene. The blanket from the van had flowers on a
with proof of the mislabeled evidence, Mr. Malone persisted: "I
matched a hair on the blanket to Kathy Wilson. I don't know how
it got there, but all I knew is ... it's consistent with coming
was acquitted. Now the defendant's lawyer, Barry Lee Smith, has
this to say about Mr. Malone: "The guy's a total liar. My client
could have been electrocuted based on his testimony if I hadn't
discovered that he'd been shipped the wrong blanket."
on Malone Affidavit
other effort on May 21, 1991 -- his statements in the MacDonald
case -- appeared to turn out better for the prosecution. In a July
1991 ruling on Mr. Silverglate's plea for a new trial, Judge Dupree
relied heavily on Mr. Malone. "According to Malone," the
judge wrote, "the blond synthetic fibers ... were not consistent
with blond wig hairs from any known wig fibers currently in the
FBI laboratory reference collection... . MacDonald has presented
no evidence that blond saran fibers have ever been used in the manufacture
of human wigs." Therefore, he ruled, there was no cause to
reopen the case. (Judge Dupree died in 1995.)
appealed, to no avail. Indeed, a federal appeals court in June 1992
chided Mr. Silverglate for continuing. Noting that the MacDonald
court record already "contains over 4,000 pages" and that
nothing in it "probably would have raised reasonable doubts
in the minds of jurors," the court concluded: "While we
are keenly aware of MacDonald's insistence as to his innocence,
at some point we must accept this case as final."
the story could have ended. But the court's words nettled Mr. Silverglate,
who is active in the American Civil Liberties Union and objects
to the notion that any case is ever really final. "No justice
system ever benefited by having a case end with an innocent man
in prison," Mr. Silverglate says. "Here was a court saying,
'It's really time to go away.' But truth is more complicated than
$175,000 in the hole, Mr. Silverglate remained on the case. For
the next four years, he and an associate, Philip Cormier, and several
other lawyers filed numerous new Freedom of Information Act requests,
interviewed nearly a dozen manufacturers of wigs and makers and
users of saran -- all with the goal of getting into court yet again.
Malone accurately describing what FBI texts said about saran? To
find out, the lawyers requested all materials in the FBI's possession
about the possible uses of the fiber. In April 1993, the Freedom
of Information Act search turned up two books belonging to the Justice
Department that said saran was indeed used for wigs. One of the
books was clearly marked as belonging to the FBI crime lab's own
collection. Mr. Malone had made no mention of these in his affidavit
-- and the court had relied on the absence of any such materials
in reaching its decision not to reopen the case.
actually impossible to make saran in the "tow" form required
for wig-making? The MacDonald lawyers obtained from National Plastic
Products Co., in Odenton, Md., a "tow" of blond saran
fibers that the company had once made, contradicting Mr. Malone's
statement that saran couldn't be manufactured in this form. The
MacDonald defense team also located wig manufacturers and wholesalers
who asserted that saran fibers were used in wigs in the 1960s and
also learned that Mr. Malone had sought, but failed to get, a statement
from a Mattel Inc. doll specialist, Judith Schizas, that a 24-inch
saran fiber might have come from a Mattel doll. Though Ms. Schizas
says she told Mr. Malone and two of his colleagues that neither
Mattel nor other manufacturers she knew had used such long fibers,
the government agents continued to press her, she says. "You
aren't trying to railroad this guy,
are you?" Ms. Schizas says she asked. She says Mr. Malone laughed
and then responded, "No, we know he's guilty, and there's a
ton of other evidence to prove it."
of weeks after the visit, Ms. Schizas says, she received a draft
affidavit from federal prosecutors. It stated that saran was "the
major fiber used for doll hair by Mattel" and others until
the 1980s. The affidavit also said that doll hairs could be doubled
during the weaving process to reduce a 24-inch fiber into a foot-long
hair. Disagreeing with both assertions, Ms. Schizas refused to sign.
Mr. Malone sought a statement from A. Edward Oberhaus Jr., senior
vice president at Kaneka America Corp. in New York, saying saran
wasn't used for wigs. But Mr. Oberhaus, whose company manufactures
wig fibers made of other substances, says he didn't have information
about saran so declined to sign an affidavit later provided by prosecutors.
Instead, he provided his own sworn statement that didn't commit
one way or the other on saran.
affidavit was neither used by the government nor disclosed to Dr.
MacDonald's defense team. The failure of Mr. Malone and prosecutors
to disclose what happened with both Ms. Schizas and Mr. Oberhaus
was significant, according to Mr. Silverglate, because prosecutors
and government agents have an obligation to turn over anything that
might be important to the defense, even if it undermines the prosecution.
February of this year, Mr. Silverglate was about ready to seek a
new review of the case based on the information he and his team
had gathered since they lost their last appeal in 1992. But despite
his years of work, he wasn't too optimistic. He worried that the
courts were so disposed against the well-trodden MacDonald case
that they wouldn't pay much attention to further motions on his
against the appeal, too, was the weight of the circumstantial evidence
against Dr. MacDonald at the time of his seven-week trial in 1979.
Among other things, the prosecution had made much of the fact that
the house was remarkably tidy after the murders, despite Dr. MacDonald's
story of an epic struggle with intruders. In addition, Dr. MacDonald's
testimony was inconsistent in some instances with the actual location
of blood stains, spatterings and footprints in the house.
argued at the trial that Dr. MacDonald had committed the murders,
then fabricated a crime scene based on an Esquire magazine article
about the murders committed by Charles Manson and his cult. They
also argued that Dr. MacDonald's own mostly superficial stab wounds
were self-inflicted, as part of the coverup. In light of all this,
Mr. Silverglate says, he and his colleagues debated whether their
new information about Mr.
Malone was going to be "dramatic enough" to get the court's
on Feb. 26, a big story broke, one that "made my eyes bug out,"
Mr. Silverglate says. The widely reported news involved a memo that
FBI lab examiner William Tobin had written in 1989, alleging that
Mr. Malone gave 27 instances of false or misleading testimony in
1985 proceedings that led to the impeachment and ouster of former
U.S. District Judge Alcee L. Hastings. In the memo to a superior,
Mr. Tobin called his colleague's testimony -- which didn't involve
hair or fiber -- "scientifically unfounded, unqualified and
Justice Department Inspector General Michael Bromwich reported on
an 18-month investigation of the FBI crime lab, a probe that had
been launched because of broad allegations of bias first made by
supervisory special agent Frederic Whitehurst in 1995. The inspector
general concluded that Mr. Malone had indeed "testified falsely
and outside his expertise" in the Hastings matter. But in his
report Tuesday, the inspector general stopped short of finding intentional
wrongdoing by Mr. Malone and left it up to the FBI to "assess
what disciplinary action is now appropriate for Michael Malone"
in connection with the Hastings matter. According to the report,
the FBI defended Mr. Malone, stating "it is not appropriate
to characterize Malone's testimony as false because it was not intentionally
recommended that the FBI monitor Mr. Malone's future expert testimony
to "assure that it is accurate and limited to matters within
his knowledge and competence." But the inspector general didn't
allude to the MacDonald case or to any of Mr. Malone's other testimony
over two decades.
says he believes the Tobin memo will prove to be the real turning
point in the 27-year-old MacDonald case. "It not only raised
the issue of FBI infallibility, but it made the scam in the MacDonald
case part of a larger pattern that would be harder for the court
to ignore," Mr. Silverglate says. "Now we believe that
somebody in a black robe will pay serious attention to this case."
the federal court in North Carolina will be swayed, however, is
far from certain. Mr. Silverglate's court filing, expected next
week, argues that the last appeal was rejected based on allegedly
fraudulent statements in Mr. Malone's affidavit. But despite well-documented
questions about Mr. Malone's work, there are further hurdles: In
order to win a new trial, Mr. Silverglate will have to prove both
that the evidence was withheld by the government in 1970 and that
it might have led to an acquittal.
evidence is, Mr. Silverglate maintains, "crucial" because
it lends credence to Dr. MacDonald's story about a band of intruders
led by a woman wearing a long, blond wig. It also adds potential
significance to the testimony of a police officer at the 1979 trial.
Officer Kenneth Mica told the jury that on the way to the MacDonald
home on the night of the murders, he spotted a woman standing blocks
away, in the rain, with long blond hair and a floppy hat and boots.
that he thought it strange that she should be there at 3:30 a.m.
but that he didn't have time to stop because he was responding to
a call for help. The jury didn't think much of that testimony at
the time, but Mr. Silverglate is hoping that, in light of the new
information on saran, the court will see things differently.
Mr. Malone, he is currently working not in the crime lab but in
the FBI's Norfolk, Va., field office, as a special agent. He was
transferred there, as part of a general FBI move to put agents back
in the field, in 1994. Since then he has continued to participate
in high-profile cases, including the investigation of John Salvi
3rd's shooting rampage at Boston-area abortion clinics.
courts continue to challenge his testimony. On March 6, the Florida
Supreme Court reversed a murder conviction of serial killer Bobbie
Joe Long. In its ruling, the court specifically found Mr. Malone's
hair-and-fiber testimony insufficient to justify that conviction.