Having pursued leads in 32 states, Vietnam, Okinawa, Germany, the Canal Zone, and Puerto Rico, and having conducted dozens of new tests at the crime scene, and having obtained and analyzed 34 additional laboratory reports, and having interviewed 699 people, and having obtained sworn statements from 151, and having administered polygraph tests to everyone whose testimony was considered directly relevant—except Jeffrey MacDonald, who refused to undergo such an examination—Colonel Pruett's reinvestigation team completed its inquiry into the MacDonald murders on December 6, 1971.
5
In early 1972, as CID agent Kearns worked on a report of the reinvestigation designed for submission to the Justice Department, other members of his organization kept Jeffrey MacDonald under surveillance.
A report filed on January 17 stated that "MacDonald enjoys the reputation of being a very professional doctor. He is constantly observed with latest medical journals and other associated literature, apparently for purposes of keeping abreast of all latest medical findings and techniques. His professional attitude toward his patients, both adult and minors, is above reproach.
"MacDonald is a conservatively 'mod' dresser. Although he has attended a few known social gatherings with a female acquaintance, he has not given any indication of being seriously involved with any particular woman. He is considered a moderate drinker and not a real 'swinger.'
"MacDonald has indicated he is interested in outdoor sports, fishing, hunting, skin diving, and strenuous body contact sports such as football.
"The apartment occupied by MacDonald is located in an exclusive area of Huntington Beach. Due to the covert nature of the surveillance, no direct inquiry could be made as to the monthly rental. The physical layout of the condominium is such that a surveillance of the apartment occupied by MacDonald is impossible without renting or otherwise occupying an adjoining apartment.
"Efforts to establish credit rating and bank account balance were halted when it was learned that recent court rulings in the state of California require that the individual concerned will be
notified when an investigative agency has made an inquiry, and the agency must be identified to the concerned individual.
"In accordance with original instructions, no direct inquiries were made. The major portion of information obtained was the result of indirect inquiry made through various police agencies in this area. This was done to prevent insofar as possible revealing the US Army CID's interest in MacDonald's activities since his arrival in this area, and to preclude any publicity which might reflect unfavorably on the US Army."
On June 1, 1972, the 3,000-page CID reinvestigation report was delivered to the Department of Justice. Its conclusions were that all evidence compiled pointed clearly toward the guilt of Jeffrey MacDonald.
For thirty days, a group of Justice Department attorneys reviewed the report. It was then sent to Warren H. Coolidge, U.S. Attorney for the Eastern District of North Carolina. In early August, Freddy Kassab called Coolidge to inquire about the status of the prosecution. He did not tape the telephone call, but was sufficiently disturbed by Coolidge's attitude to write to him on August 9.
Since our phone conversation on Monday, I have been quite worried that you would decide not to proceed with the MacDonald case.
It has always been my impression that everyone connected with the case, both in the Army and the Justice Dept., was firmly convinced that Jeff MacDonald was guilty, including yourself. I do not understand what has been deducted from the case in the last two years. My understanding is that evidence (circumstantial as it may be) has been added.
I feel that I must be frank and straightforward with you and tell you of my plans should you decide not to proceed with the case. I intend to swear out a complaint against Jeff and have a Federal judge issue a warrant for his arrest, charging three counts of murder.
Our lives (my wife's and mine) ended on the day that our daughter and grandchildren were murdered and neither of us would allow the man we think committed the crime to walk around free. That would be asking too much of us.
The most important factor in this case is that everyone who has looked at it is firmly convinced that Jeff is guilty. Therefore, regardless of the outcome, the case must come to trial.
On September 8, however, Coolidge notified the Justice Department that having completed his consideration of the CID report, he had decided not to recommend prosecution. (There had been too many mistakes made in the original investigation; the evidence, much stronger now than it had been at the Article 32 hearing, remained circumstantial; the chances for obtaining a conviction appeared too slim to justify the effort and expense of proceeding.) The MacDonald file was returned to Washington.
On September 25, Kassab wrote to Assistant Attorney General Henry Petersen asking what future action was intended, and requesting a meeting. On October 6, he was notified by Carl W. Belcher, chief of the general crimes section of the Justice Department, that while the department intended to "thoroughly review this entire record in an effort to arrive at a proper prosecutive judgement thereon," it was felt that a meeting with Kassab would serve no useful purpose.
On October 14, Kassab responded with a passionate argument for prosecution which he concluded by saying:
My wife and I have only one purpose in life and that is to see a successful prosecution. . . .
No one has studied this case as much as I have. I live with it night and day. No one was as convinced of MacDonald's innocence as I until I read the transcript of the pretrial hearing. . . . After two years and eight months of investigation and reviews we don't think we are being unreasonable in wanting that the case now go forward. This is what we want done, what must be done, and the guilty party punished.
On October 25, Kassab wrote to inform Belcher that he had conducted interviews with four people in Patchogue in regard to Jeffrey MacDonald's extramarital involvement with Penny Wells and that he had forwarded tapes of those interviews to the CID in Washington. "The material," he wrote, "although not startling in nature, shows that there is a definite basis for this particular lead and does add considerable information."
Belcher replied on November 7 that, "we share your concern over this matter and it is receiving the special attention here that all agree it merits."
On December 4, Kassab wrote again to Henry Petersen, this time, after noting the continued lack of action, stating that if the Justice Department refused to resolve the case the Kassabs would go to the media and "expose the whole sordid story."
The Kassabs did not receive an immediate reply, but they did receive a Christmas card from Jeffrey MacDonald. The printed message said:
It is a time
for memories and nostalgia a time for being touched by that spirit of love that is above us all
A time for remembering the people and things that carry us through the hard times and the sadness
A time for remembering one such as you . . .
Enclosed with the card was a handwritten note:
Dear Folks—
I try to get through these vacations by working hard—it helps somewhat but it is a difficult time. I hope you are well. I'm sure you don't want to hear senseless chatter about my job, etc. so I will just say I'm getting by. California is a better place for me than NY.
My best to all and I hope the New Year is better.
MacDonald had sent that card shortly after returning from Tahiti, where he had taken a new girlfriend on vacation.
On January 30, 1973, Freddy Kassab wrote to the Attorney General of the United States stating that, in light of the Justice Department's unwillingness to initiate a prosecution, he intended to take the case against MacDonald to the public.
The next day, Kassab granted an extensive interview to a Newsday reporter named Bob Keeler. On Friday, February 2, Keeler's story appeared under the headline PARENTS LIVE TO SEE A KILLER CAUGHT.
"For Freddy and Mildred Kassab," Keeler wrote, "life has narrowed to two purposes: keeping fresh flowers on the g
raves of their daughter and grandchildren and pushing the government to find out who killed them.
"From the moment MacDonald was named as a suspect in the case, Kassab was his staunchest supporter. . . . But now, after months of carefully reading and rereading the 2,000-page transcript of a lengthy Army hearing and after an eight-hour visit to the still-sealed house at Fort Bragg, Kassab has doubts."
The story described the Army's reinvestigation of the case and Kassab's ftitile efforts to persuade the Justice Department to prosecute.
"We live this," Kassab had told Keeler. "This comes to me before eating, before making a living, before anything else. I'm having a hard time making a living because I can't concentrate on my work. We have one object in mind and that is to bring this case to fruition. It has to be brought to trial."
Mildred Kassab was quoted as saying, "We haven't had any guests in the house since this happened. We don't entertain. We don't go out anywhere. What do you talk about? Do you pretend to enjoy a card game? There isn't anything in the world that interests me other than getting whoever killed her. As long as this is unsolved, they're dead, but it's living yet. It's living just as much as it did the day after."
From his Huntington Beach condominium, Jeffrey MacDonald said, "I really don't want to make any comments. Life has been hard enough to re-establish without getting back into the papers. Freddy is upset because there hasn't been anyone brought to justice. He's kind of at his wits' end. There's no one who's more upset than I am."
On February 15, Carl W. Belcher wrote to Kassab, saying, "The problem remains one of insuring that when and if we initiate a prosecution, the jury will receive sufficient facts to render an informed and just verdict. In fairness to those immediately concerned and to the public, we must and will be as thorough and objective as possible in arriving at a prosecutive judgment on the matter."
To Kassab, this still seemed an inadequate response, and in early March he supplied information to the New York Daily News which resulted in a March 16 story headlined REOPEN MURDER CASE INVOLVING EX-ARMY DOC.
"The Daily News story, quoting "highly placed sources in the Justice Department," said "new evidence has been uncovered in the case and a decision on whether to submit the matter to a federal grand jury will be made within two to five weeks."
That story—inaccurate though it turned out to be—prompted a flurry of action from a number of quarters. First, Jeffrey MacDonald tried to reach former Congressman and former supporter Allard Lowenstein, with whom he had broken off contact two years earlier. Lowenstein, without returning MacDonald's call, contacted Freddy Kassab, at whose request he had first become involved in the case. Kassab recorded the conversation.
"I think it might be helpful if we could talk for a few minutes," Lowenstein said, "because I had a call the other day from Jeff, and I'm—I've sort of felt reluctant to be involved in things for the past year, and before I did or didn't do anything about this call I wanted to find out what your thinking was."
For the next several minutes Kassab described the process by which he had gone from believing in MacDonald's innocence to having become convinced of his guilt.
"All right," Lowenstein said. "Then you ended up a year later where I ended up a year before, when I got out of it."
"Yeah." This news was a total surprise to Freddy. He had no idea that the congressman had considered Jeff anything but the victim of a miscarriage of justice.
"You see," Lowenstein continued, "as I looked further into this and discovered things, my decision was a very tough one. I decided I could not press further in line with the original reason that you had come to see me. And I had a very tough soul-searching with, who had appointed me God to go beyond that? And I finally decided that I would simply get out of it entirely, and that's why you haven't heard from me in a long time'
"What you do is your business," Kassab said, "but I would strongly advise not being involved at this point. I don't have much doubt that there's going to be an indictment."
"Well," Lowenstein said, "I came to that conclusion two years ago. The problem I had at that point was the question of what, if anything, could be done, with the Army being as inept as it was. But then I had a further very difficult problem, which was that I was in a lawyer-client relationship with Jeff—if I was in any relationship—since I was no longer in Congress by then. I had to view an ethical problem from that end.
"So I decided at that point that the best thing I could do was to pull out, which I did.
"Now what's brought the whole thing up again is that Jeff called me. I guess you knew that."
"No. Well, I would assume he would have called a lot of people," Freddy replied.
"I guess there's no need to tell you a lot of the things that were brought to my attention which led me to my conclusion, Because, you see, I reached my conclusion independently of the people that you're talking about, and I did so on the basis of—I suppose cerebration is the only thing I can say: that is, using my head as I got pieces put together—questions that I raised and places that I went to.
"But I still am conflicted in one moral situation, and that is that if—and I don't know how to say this without sounding so unsure of the direction I should go as to make myself sound like Hamlet, but I—he's entitled to a lawyer."
"Absolutely."
"I don't know what I would do if it went back to his wanting me to be his lawyer. That's one reason I'm unsure I should even discuss this thing with anybody. But I've decided in my own mind that I don't want to be his lawyer. Of course, he hasn't asked me, but he told me at one point—of course he tells anybody anything, so I don't know what it meant—but he was very negative about Segal.
"I mean, 4his was at the point when I was involved in it, which is when we were trying to get him out of the Army and all the rest of that stuff."
"Yeah, I was embarrassed, though," Kassab said, "the way he was treating you when, you know, when you were waiting to see him in Washington and he didn't make it until two weeks later—he had other things to do, and things like that."
"Oh, it was bad," Lowenstein said. "But at the time we assumed it was disorientation. You know, you give the benefit of the doubt. And after a while you discover that it's not that—it is orientation, not disorientation. Which is a very different business.
"Well, when you learn that, of course, that also computes into what you do, and, ah—anyway, later, I put him in touch with two guys from North Carolina, Wade and Roger Smith, who are very close friends of mine and are the best lawyers in the state for this kind of a case. And those two guys and I—we sat down and went over this whole thing together. And—this conversation now—I really want this conversation to remain between us, so it's the type of situation where no one even knows we had this conversation—but when I talked to the Smiths I said, ‘1 want to be honest with you.' I said, 'My feeling about the situation is they tried to frame him and the whole thing was handled so badly and so outrageously that everything I've done and said about it so far I stand by.
" 'But I also want to tell you that if we go into it any further you should understand that it's my view that—handled correctly— it's not a question of innocence. It's a question of, ah, establishing a defense, which is a very different business.'
"I said, *I don't know if you're interested in doing that. I don't know if I am. I got into this out of the sense of injustice being done to him. Whether now I want to get into this in a game of criminal defense, I don't know.'
"So we talked about this and from the beginning I was very honest with them about it, and they decided that from their point of view they would be willing to proceed, but that they wanted to be sure they were dealt with honestly by him. In other words, that's their standard of ethics, and of course in part why they're as good as they are.
"At that point I told Jeff about them and about myself. I said, The decision as to whether you want us to proceed and how you want us to proceed depends on what you feel.' And I said, 'I think you should understand a
t this point I'm no longer—I certainly can't go around screaming that you've been treated unfairly. That's now finished.'
"And I said, 'As far as I'm concerned, if you want help in this situation then I want to talk to you about what happened and I want to talk to you about why, and I want to talk to you about all the things I've got to talk to you about and make a decision on how to proceed from there. There may be circumstances,' and so forth and so on.
"I didn't say to him I thought he was guilty, but it was certainly clear from that conversation that I was no longer saying, well, what I first—well—when you and I first talked.
"Now at that point he decided it would be better for him if the thing was not handled by any of us, which of course was the option I'd given him. So he at that point withdrew. When I said I withdrew, it was reciprocal.
"Now what puzzles me is why he called the other day, because—knowing what he knows about what I felt two years ago—I mean, I don't know why he's calling me and I have not returned his call yet."
"Well," said Kassab, "he's calling you for information. Basically, what he's looking for, I would assume, is to find out if you know anything that's going on in Washington. He called you because he's worried, and this was my purpose in doing what I did. He knows I'm behind it because he knows how adamant I am. I mean, I'm a milksop, basically, about almost anything in the world. I've always been. Except when I get my back to the wall, like in this case, where Colette, who was as dear to me as—aah, I'll never rest. Never. This thing has got to be brought to some kind of a termination."