FBI Fiber Analysis Emerges As New Issue in Murder Case

By Laurie P. Cohen

APRIL 16, 1997


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.

Why it 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.

Federal 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.

Whatever 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.

Tuesday, 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.

The MacDonald 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.

But, 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, Ore., prison.

Yet buried 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 Act request.

The documents 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.

Working 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.

The hair, 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.

To evaluate 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.

In reviewing 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."

When 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.

He summed 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."

Mr. Malone's 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.

Physically 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.

Similar Assurances

A Wall 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."

Mr. Malone 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.

But questions 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."

Also 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.

Forensic 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."

Yet the 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 1990.

The FBI 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.

On May 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.

Outside Help

Cathryn 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.

At first, 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 the van.

There 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 anywhere
near the crime scene. The blanket from the van had flowers on a white background.

Confronted 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 from her."

Mr. Buckley 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."

Relying on Malone Affidavit

Mr. Malone's 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.)

Mr. Silverglate 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."

Here 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 that."

Already $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.

Book Search

Was Mr. 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.

Was it 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 1970s.

Mr. Silverglate 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."

A couple 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.

No Disclosure

Similarly, 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.

Mr. Oberhaus's 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.

In late 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 behalf.

Working 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.

Alleged Coverup

Prosecutors 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 attention.

Then, 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 biased."

Tuesday, 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 deceptive."

The report 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.

Mr. Silverglate 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."

Further Hurdles

Whether 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.

The hair 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.

He said 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.

As for 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.

Meanwhile, 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.