That wasn’t just a high standard. That was the Berlin Wall. But the language provided a tunnel underneath it.
What did “the evidence as a whole” really mean? It was one of those amorphous phrases that reeked of being created by committee. In a law designed to limit the filing of successive habeas petitions, this phrase, ripe for almost endless interpretation, seemed likely to have the opposite effect.
MacDonald had already filed three unsuccessful habeas corpus petitions (two in 1984, one in 1990) after he’d lost on direct appeal. In order to have a fourth considered, he had to show “newly discovered evidence” that would have proved so persuasive at trial that the jury could not have found him guilty.
His lawyers claimed they had it, and presented their petition to District Judge James C. Fox, who’d been assigned to the case following Dupree’s death. (As it happened, Fox had delivered the eulogy at Dupree’s funeral.)
MacDonald’s new contention was that the government had filed false affidavits from an FBI lab examiner named Michael P. Malone.
Malone had stated that twenty-two-inch, blond, hairlike fibers found in Colette’s hairbrush were made of a substance called Saran, which was not used in the manufacture of human wigs in 1970 and thus could not have come from a blond wig worn by an intruder. He said the fibers had probably come from a doll, perhaps belonging to the MacDonald children.
But MacDonald’s investigators had located two textile textbooks that said Saran was used in wigs worn in 1970. They claimed the FBI had these textbooks in their reference library but had ignored them. They also charged that the FBI had interviewed two doll experts in California who had told them that fibers that long probably did not come from a doll.
Putting it all together, MacDonald charged Malone and the Justice Department with “committing a fraud upon the court.” He also claimed the right to a new trial because of the “newly discovered Saran evidence.” And he requested mitochondrial DNA testing of various hairs recovered at the crime scene.
Judge Fox suddenly found himself in the thick of it. He was sixty-eight years old and had served as a federal judge for almost fifteen years. In that time, he must have commiserated with his friend Frank Dupree about the difficulties of presiding over the MacDonald case. Now, with Dupree dead, Fox found himself having to read up on the processes used by the Mattel Corporation in the late 1960s in the manufacture of such products as Dancerina and Baby Go Bye Bye dolls.
Brian Murtagh was back in the thick of it, too. Almost from the day Pan Am Flight 103 exploded over Lockerbie, Scotland, in December 1988, Murtagh had been up to his eyeballs in Libyans. He had helped prepare the charges that led to the indictments of two Libyans in 1991 and continued his investigation into the bombings for the next several years. Then the “fraud upon the court” accusations pulled him back into the MacDonald case. In September 1997, Fox ruled that MacDonald’s accusations against Malone were “cavalier and unverified” and that MacDonald “has produced only possibilities, amplified by hyperbole.” Fox also wrote that MacDonald “histrionically mischaracterizes both the nature and magnitude of the dispute now before the court.”
The district judge also rejected MacDonald’s request for permission to perform mitochondrial DNA testing on the hairs, citing his failure to get a pre-filing authorization from the Fourth Circuit, as required by law.
In 1998, as they continued to bicker with the government over details of the DNA testing, MacDonald’s lawyers were back before a Fourth Circuit panel to appeal Fox’s denial of their “fraud upon the court” claim. They were rejected in September. The panel found that the evidence they presented was “not truly exculpatory … [and] not particularly compelling. … Much of it is equivocal and contradictory.” This time, the judges didn’t even bother with oral arguments.
And so, not for the first or second or third or even fourth time, MacDonald had reached a dead end.
7. “Things Do Not Lie”
Some might find it admirable that a man who continued to proclaim his innocence would also continue to smother federal courts in paperwork designed to invalidate his decades-old conviction.
And if a man were innocent, it would be.
Since Barry Scheck and Peter Neufeld founded the Innocence Project at Yeshiva University’s Cardozo School of Law in 1992, more than three hundred wrongly convicted prisoners have been exonerated by subsequent DNA testing. Of those three hundred, however, 70 percent were members of racial or ethnic minorities. And of the remaining 30 percent, few, if any, could boast of an Ivy League education. Or were medical doctors. Or had served in an Army Special Forces unit.
Jeffrey MacDonald, in other words, was not the sort of person against whom the American criminal justice system tended to discriminate.
MacDonald’s supporters could whine about Judge Dupree, they could bitch about Brian Murtagh, they could invoke the ghost of Helena Stoeckley every Halloween, but they could not change the fact that there were forty-eight ice-pick holes through MacDonald’s pajama top and that when the top was folded as depicted in crime-scene photos, draped across Colette’s torso, those forty-eight holes lined up with the twenty-one ice-pick holes in her chest, indicating that he had stabbed her with the ice-pick after placing his pajama top on her body, evidence that contradicted his story. Nor could he change the fact that it was his footprint in Colette’s blood that was found exiting the bedroom of his younger daughter, or that the murder weapons had come from the household, or that blue threads were found on a sheet beneath his older daughter’s body, indicating that she had not been killed in her own bed but had been carried there by someone wearing a torn blue pajama top. Et cetera, et cetera, ad infinitum.
As lead prosecutor Jim Blackburn, then first assistant U.S. attorney for the Eastern District of North Carolina, said at trial, “Things do not lie.”
That remains true no matter how hard MacDonald partisans try to twist them into unrecognizable shapes.
Years passed. The millennium came and went. Brian Murtagh traveled to the Netherlands for the Lockerbie trial. The mitochondrial DNA testing proceeded at a snail’s pace. MacDonald’s unpaid publicists spread the word that the results would finally prove his innocence.
And then, one day in January 2005, retired deputy U.S. marshal Jimmy Britt walked into Wade Smith’s office at Tharrington, Smith & Hargrove, in downtown Raleigh, with a story. Smith, widely acclaimed as one of the finest criminal attorneys in the South, had served as MacDonald’s local counsel during the 1979 trial.
Britt was a forlorn figure. Life had not been kind to him since he’d retired from the Marshals Service. He was twice-divorced, facing bankruptcy, and in failing health. Also, he’d been indicted on charges of receiving stolen property. His acquittal at trial did nothing to reduce the bitterness he felt at what he considered betrayal by the government he’d spent so many years serving. He was a man with a grudge and nothing to lose.
Britt told Smith that during the 1979 trial he’d been sent by the Marshals Service to Charleston, South Carolina, to pick up Helena Stoeckley and bring her to Raleigh so she could testify. On the long drive back, he said, Stoeckley had confessed to him that she’d been involved in the murders. (One is tempted to say, “Please take a number, Mr. Britt, and wait over there with the others.”)
But Britt went further. He said that the next day he’d been present when Jim Blackburn, the lead prosecutor, had interviewed Stoeckley. After she’d repeated to Blackburn the same things she’d told Britt on the car ride from Charleston, Blackburn threatened to indict her on murder charges. As a result of Blackburn’s intimidation, Britt said, Stoeckley agreed to lie on the witness stand by claiming she’d had nothing to do with the murders.
This put Wade Smith between a very big rock and a very hard place. He’d been a friend of Blackburn’s for years, in the almost familial way of southern lawyers. In the 1990s, when Blackburn, then in private practice, suffered a nervous breakdown and was charged with embezzlement and forgery, Smith acted as his crimina
l defense attorney and succeeded in obtaining a drastic reduction in sentence.
Because Smith had represented Blackburn, he could not now represent a man who was accusing Blackburn of unethical, even illegal, professional conduct. But Smith had also represented MacDonald. Which put him in the unenviable position of having ethical obligations both to a man convicted of murder and to the man who’d obtained his conviction.
Smith contacted a Washington, D.C.–area lawyer named Tim Junkin, who had recently joined MacDonald’s always-in-flux defense team. In 2004, Junkin had published a book about the first death-row inmate to be exonerated by DNA tests, and he was working on MacDonald’s efforts to obtain DNA results.
Smith told Junkin about Britt’s statements. Junkin came to Raleigh, and in the presence of a court reporter, the two lawyers obtained a sworn statement from the retired deputy marshal on February 24, 2005.
Junkin drafted an affidavit that Britt signed eight months later. But there were problems. Britt recalled that during the trial, jurors had presented a birthday cake to Judge Dupree. Irrationally, he took this as evidence that judge and jury were somehow colluding against MacDonald, and insisted on including it in the affidavit.
Britt stated under oath that he’d seen Dupree eat the cake in his chambers in the company of his law clerks, John Edwards (yes, that John Edwards) and Jerry Leonard, whom Dupree would later appoint as Stoeckley’s lawyer. The problem was that neither Edwards nor Leonard had been clerking for Dupree at the time and hadn’t been in Dupree’s chambers during the trial, so at least that part of Britt’s sworn statement was false.
A more serious problem arose in relation to Stoeckley. In his affidavit, Britt said he’d picked her up in Charleston. He repeated that in one portion of the statement, but in another he said he’d picked her up in Greenville, which is more than two hundred miles from Charleston.
So Junkin had Britt sign a second affidavit. All references to Charleston were deleted. Now it said Britt had picked up Stoeckley in Greenville. References to the birthday cake were also omitted.
It was this second affidavit that MacDonald’s lawyers presented to the Fourth Circuit when they requested a PFA that would allow them to file a fourth habeas motion under Section 2255. The Fourth Circuit granted the authorization in January 2006.
In March 2006, the Armed Forces Institute of Pathology finally, after nine years, delivered its report on the DNA testing. The bottom line was that three hairs found at the crime scene in 1970 could not be linked by DNA to either MacDonald or his wife and daughters, or to Helena Stoeckley or her boyfriend at the time, Greg Mitchell, whom MacDonald had tried to implicate in the murders.
MacDonald’s lawyers seized upon this inconclusive report. They wrote, “This new evidence, irrespective of the new evidence submitted through witness Jim Britt, entitles the petitioner to have the entire panoply of evidence reviewed (both evidence adduced at trial, and developed post-trial), and to have a determination now made of whether this evidence, analyzed in its entirety, proves the petitioner’s innocence.”
What a Pandora’s box Congress constructed when it tossed the phrase “the evidence as a whole” into the law books. What opportunities for mischief-making the vagueness of the phrase gave to imaginative lawyers. And MacDonald’s lawyers, while bereft of favorable facts, were not lacking in imagination. They filed yet another motion in 2007, this one seeking to add to “the evidence as a whole” an affidavit signed by, of all people, Helena Stoeckley’s mother. The eighty-six-year-old woman suddenly remembered that, twenty-five years earlier, her daughter had told her that she’d been present at the MacDonald home when the murders were committed. (Please take a number, Mrs. Stoeckley.)
Fox was struck by the effrontery of MacDonald and his lawyers. It was as if they believed chutzpah could overwhelm fact. In a twenty-three-page opinion he issued on November 4, 2008, Fox wrote,
MacDonald is back before the court with a new flurry of post-conviction motions. More than thirty-eight years after the February 1970 murder of his pregnant wife and two daughters, MacDonald continues to discover “new” evidence that he was not the perpetrator. … MacDonald and his defense team have made a career of pursuing every imaginable avenue and theory of post-conviction relief.
Fox was having none of it. He disposed of MacDonald’s claims in a manner that he must have considered definitive.
“Reams and reams” had been written about the case, he said, and that was only by lawyers. But Fox stressed that quantity was no substitute for quality. “Ordering an evidentiary hearing on MacDonald’s new claim of prosecutorial misconduct by threat and intimidation of a witness would constitute a disgraceful waste of judicial and Government resources,” he wrote. He denied all of MacDonald’s motions.
8. Legal Burlesque
For decades, the Fourth Circuit Court of Appeals was considered one of the most conservative federal appellate courts in the country. In 1999, The New York Times reported that the court “has in recent years evolved into the kind of bench that staunch conservatives had hoped to create at the Supreme Court but never quite achieved.”
In 2006 and 2007, however, three judges who had been nominated by Republican presidents left the court through death or retirement, and the Democratic-controlled Senate refused to approve replacements nominated by President George W. Bush.
While the murder of a woman and her children by the husband and father would not seem the sort of case that would encourage judgment along partisan political lines, there was no denying that conservative judges tended toward a more restrictive view of prisoners’ rights than did liberals.
By 2009 the Fourth Circuit was a court in flux, composed of six Republicans and five Democrats (with four vacancies due to congressional inaction), more open than it would have been a decade earlier to generous interpretation of the language of Section 2255, and in particular of the words “the evidence as a whole.” The Fourth Circuit granted MacDonald a certificate of appealability in May 2009, authorizing him to proceed with his fifth habeas corpus petition.
The Fourth Circuit panel heard oral arguments in March 2010. More than a year passed with no decision. On March 25, 2011, one of the three judges died. Less than a month later, the two remaining panel members handed down their decision. They overturned Fox’s 2008 denial of MacDonald’s motions, decreeing that he had taken an “overly restrictive view of what constitutes the ‘evidence as a whole.’ ” The appellate judges said Fox had been wrong to apply 28 U.S.C. Section 2244(b)(2)(B)(ii) to MacDonald’s new habeas claim. They said he should have used Section 2255(h)(1).
Believe it or not, this sort of judicial hairsplitting is what is keeping the MacDonald case alive forty-two years after he was first charged with the murders and thirty-three years after his conviction.
(If you want to try to decipher it, the full twenty-three-page opinion can be found via PACER at U.S. v. MacDonald 641 F.3d 596 C.A. 4 (N.C.), 2011.)
What a legal burlesque the MacDonald case has become. What a pity that the lives of Colette, Kimberly, and Kristen MacDonald—real lives that ended in a blur of terror, pain, shock, and blood—should be reduced to artifacts used in games of courtroom ping-pong.
* * *
The Fourth Circuit did not explicitly order Judge Fox to hold an evidentiary hearing that would permit discussion of anything MacDonald wanted to claim was part of the “evidence as a whole,” but only someone far more naive than the now eighty-one-year-old district judge could possibly have missed the signal. After the usual delays, Fox finally convened the hearing on September 17, 2012. In advance, the media was all atwitter—and a-Twitter.
“Judge to Consider New Evidence,” said ABC News. It was, the network said, “evidence that may prove [MacDonald’s] innocence.”
The Associated Press wrote, “The case now hinges on something that wasn’t available when he was first put on trial: DNA evidence.”
How sexy it sounded. What a story it would be if “new DNA evidence” proved Jeffrey MacDonald
innocent!
In the extensive media coverage that preceded the hearing, I couldn’t find a single story that pointed out that there was no “new DNA evidence.” There was only the 2006 report from the Armed Forces Institute of Pathology that said three hairs found in laboratory vials associated with the crime scene or the autopsies could not be matched to either the MacDonald family or the two individuals most often cited as having been among the mythical intruders. The six-year-old report had been referenced repeatedly in court filings and in no way supported MacDonald’s claims.
Not a single reporter bothered to check. Instead, as with one giant mouth, the mainstream media swallowed whole the fish story being peddled by MacDonald’s lawyers and advocates.
Once the hearing began, however, MacDonald’s team had to play its cards. As it turned out, they were holding only jokers.
9. The Author Takes the Stand
I arrived in Wilmington late on the afternoon of Sunday, September 16, the day before the hearing began. No sooner was I out of my car than I was meeting with First Assistant U.S. Attorney John Bruce, a short, trim, balding man with a sturdy North Carolina accent, a wry sense of humor, and an extraordinary capacity to absorb and retain relevant detail. Bruce wanted to discuss the subjects he might question me about on the stand.
The first was my presence at the interview Bernie Segal had conducted with Helena Stoeckley the day before she testified at trial.
Acid is groovy … Kill the pigs. Had she really said that, as MacDonald claimed, while he lay on his living room couch and she stood over him holding a candle that illuminated her blond wig and floppy hat?
Segal certainly thought so. As I wrote in Fatal Vision about the interview, “For almost a decade, in Bernie Segal’s mind, Helena Stoeckley had been a figure of near-mythic proportion. Now here she was, three feet from him, politely declining his offer of coffee and doughnuts. She would, she said, be grateful for a can of diet soda.”