Even more ominous, from Segal's point of view, had been the judge's announcement that he was reserving decision on the admissibility of certain points Segal considered vital to the defense. These included references to the constitutional questions of speedy trial and double jeopardy, as well as mention of Helena Stoeckley's continuing admissions to others that she (whose whereabouts were currently unknown) believed herself to have been involved in the murders. Other points on which the judge had not yet made up his mind were whether the jury should be told of the report filed by Colonel Rock which had found the charges against MacDonald to be 1’not true," and whether they should be informed of Dr. Sadoff's 1970 testimony that MacDonald lacked the capacity to have committed the crimes. Indeed, the judge said, he was not at all certain that he would permit any psychiatrists to testify, since the question of insanity was not at issue and since he believed that conflicting expert testimony tended to confuse a jury needlessly.
Pending his later rulings on these matters, the judge had said, no mention of them would be permitted in the opening statement to be made by the defense.
"So what's the status of our opening statement?" Mike Malley asked.
"We don't have one," Bernie Segal said. He looked out the office window again, at the scorching summer sun and the stifling, humid air that hung heavily over the somnolent Southern city. He took another sip of his Tab and another puff of his cigar. He said, "I guess we can talk about the weather."
Soon, however, the three lawyers began to go to work. Whatever the judge's restrictions, an opening statement would have to be delivered within a week.
Segal's first decision was that Smith should be the person to deliver it. He wanted the jury's first impression to be of a familiar local presence. Segal believed they would find this reassuring. Even if they did not know Wade Smith personally, the jurors would be more likely to give credence to words spoken in a cadence and with an accent to which they were already well attuned. Later—particularly during the cross-examination of government witnesses—there would be a place for Segal's harshness and histrionics, but the folksy, gentle manner of the Raleigh lawyer, Segal believed, would provide the most effective possible introduction to the version of events that Segal wanted the jurors to accept.
"I think," Segal said to Smith, "that the first thing you'll want to suggest is that this is an unusual case. This is a crime that occurred more than nine years ago. We have to hit that theme constantly. Enough is enough. Too much time has gone by.
"Then, I think it's important to set the family scene. Here was a man twenty-six years old, who had just completed medical school, achieving the dream of a lifetime. But before he embarked upon his career, he wanted to do service for his country. So there he was, at Fort Bragg, with his wife—his childhood sweetheart.
"I think it's important to mention, incidentally, that he had a partial scholarship and had to work to get himself through Princeton. That he came from a poor family and that his mother and father both worked to help pay his way. Right from the start we want to offset this image of him as a rich doctor from Southern California."
Wade Smith was taking notes on a yellow legal pad. Mike
Malley was sitting in silence. Working hard on his cigar, Segal continued to build the scenario. "He does so well at Princetor that after only three years he's accepted at medical school. He does so well there that he earns one of the top internships in the country. And at the end of that year he agrees to serve his country as a Green Beret—not because he's any sort of machc killer, but in order to help those who need help the most: the boys we sent to fight in Vietnam.
"Then you paint a picture of the peace and tranquillity they enjoyed at Fort Bragg. Take it right up to Christmas, tell how he bought the pony for his daughters. And if that doesn't get somebody a little lumpy at that point, we've picked the wrong jury."
Segal paused for a moment. "You might also stress," he said then, "that at Fort Bragg, for the first time, they did not have to scrimp for money."
"And," Mike Malley added, "that for the first time in their married life they got to spend a lot of time together."
"I'm not sure, Mike," Segal said. "The cynical response to that is, 'Yeah, and they found out they didn't like it.' I don't think we ought to hit that note too hard. You see, the point is, as long as people do not see him as some California, hip, swinger— some money-grubbing doctor—he's halfway home to being acquitted."
Wade Smith was nodding. This was a language he understood well. "Humanize him," Smith said. "Make the jurors want to embrace him."
"Right," Segal said. "After all, who's the government got to embrace? Freddy Kassab?"
"And let's not leave out Colette," Segal continued. "She was growing as a person, too. Even on the evening of February 16—the last night of her life—she was going to a child psychology course, trying to better herself. Jeff stayed home and played with the kids, put them to bed—parenting by the father, you see. A real good evening, just like so many others they'd enjoyed.
"Then, 'You will hear from the last person who saw her alive—the woman to whom she gave a ride to class—how Colette MacDonald felt about her life, her husband, her marriage.' The human details. That loving scene between husband and wife as they have a drink, chat about the events of the day, enjoying the time that they considered their special time together. Then she goes to bed, he finishes the housework, reads a bit for relaxation, watches TV."
For a moment, Bernie Segal's eyes appeared to moisten. Then he said, "You might as well mention the bed-wetting here, that makes it less ominous if the government tries to use it as a motive. 'And what were his choices? Either to wake his pregnant wife in order to remake the bed, or simply to go back to the couch so as not to disturb her as she slept, and to fall asleep on the couch himself, having no idea of what was about to befall him and the people he so dearly loved "
Wade Smith was nodding and writing fast. Without missing a beat, he picked up where Segal had paused. " 'You will learn of the intruders,' " he said. " 'You'll see them. You'll come face to face with them.' "
"Fine," Segal said. "Although I think you'll want to be synoptic about the details of the struggle."
" 'And then we'll show you how and why the government has been so consistently misled in this case.' "
" 'And you'll learn how Jeff has tried, over the years,' " Mike Malley said, " 'to rebuild his life, only to be dragged back to face this.' "
"Yes, yes," Segal said, getting up from behind his desk and starting to pace. "And the fact that he's never remarried. That's very important. And continue with how the government has kept this alive for nine years—keep coming back to the nine years. And I think it's really important that we promise to explain the errors that the government committed—what led them astray."
"At some point," Wade Smith said, looking up from his pad, "they're going to learn that Jeff told Freddy a lie. How do you want to deal with that?"
" 'He throws himself into his work as a means of forgetting,' " Segal said, beginning to gesture expansively with his cigar. " 'But all the while, one set of people will not let him forget. Will not let him rebuild. Will try to make him live in the past. Who is responsible? His stepfather-in-law, a fanatic, a man obsessed, a man named Alfred Kassab.
" 'A man who wanted to spend every weekend combing the bars of Fayetteville in search of the killers, doing what the Army, the CID, the FBI should have been doing.' "
" 'You will hear how Doctor MacDonald tried to escape from the trap of living with this obsession,' " Mike Malley said.
"I think escape might not be a good word," Segal said.
"All right. How he tried to free himself from this obsession."
"Incidentally," Smith asked, "how do we refer to him? As Doctor MacDonald?"
"As Jeff," Segal said. "We want to humanize him. We want them thinking of him as just plain Jeff, the kind of guy they'd like to have for a next-door neighbor. And we want to contras that with the image of the wicked stepfathe
r, Freddy Kassab."
"He'd be your next-door neighbor," Malley said, smiling, "If you happened to live in a waterfront condominium in Huntingtoi Beach."
"We minimize that," Segal said. "What we emphasize is the fact that this trial represents an opportunity for the jury to put an end to nine years of suffering."
"That the system is finally going to work," Smith said.
"We want them thinking, 'Oh, the poor man,' " Segal said "We want to put on them the full knowledge that they have the ability to relieve him of his suffering."
" 'And before this trial is over,' " Smith said, " 'you will see the full dimension of this man: decent, intelligent, hardworking, devoted to community service—capable of mistakes, like the rest of us, but, in 1970, not drunk, not on drugs, not mentally ill.
"We want them to feel a little sad at the end," Segal said. "A little sympathetic. But mostly a little cynical. Suspicious of the government's case."
" 'Look at the man,' " Smith intoned. " 'Look at the life that is supposed to have created this monstrous destruction.' And then we hold the government's feet to the fire. 'They cannot prove he might have done it. They cannot prove he could have done it. They must prove, beyond any shadow of a doubt and to a moral certainty, that he did it!' "
"We need to stress the gore," Segal said. "You've got to feel the blood on the floor. Paint the crime scene monstrously: knives, icepicks, clubs. Colette—both arms shattered. The children, five and two, beaten and stabbed and battered in the most horribly sick way. Paint it monstrous because we don't have a monstrous defendant. The jury will look at him and say, 'Did he do that? And there's no way they'll believe it."
"I agree with you," Smith said, getting ready to leave. He was living not at the Kappa Alpha house but at home. "I'll present it as kind of a down-home discussion," he said. "We don't want to seem to be enjoying it, or in our glory. More that the sad moment has come, but now the jury has the opportunity to let Jeff return to California and live out the rest of his life in peace."
To which Segal did not respond, "Amen," but he did say, "Are you going to take Jeff to church with you tomorrow?"
"I think so," Smith said. "It can't hurt. It'll be restful, and maybe a little inspirational. At least it will give him a look at some of our people, and he can see that folks here are not all out to get him."
Smith departed. Segal and Majley moved to an outer office, where Segal's six assistants had been working all day. Ten minutes later, Jeffrey MacDonald and his mother arrived, just back from Chapel Hill.
"Well?" MacDonald said.
"Well, what?" Segal said.
"What happened?"
"Nothing happened."
"What do you mean, nothing happened? What happened with our motions? What happened with the judge?"
"Jeff, I just told you, nothing."
"Okay, Mike, your turn. What happened?"
"Like Bernie said, Jeff. Nothing happened."
"All right, how about any of the rest of you? Does anybody feel like telling me what the fuck is going on?"
None of Bernie Segal's assistants responded.
"Jesus Christ!" MacDonald said. "I'm paying for eleven fucking lawyers, you'd think one of them would have the courtesy to tell me something." He paused and looked around the room. Still, no one spoke.
"Oh, I get it," MacDonald said. "It's a joke. Like a surprise party. Any minute now you're going to tell me the judge threw the whole case out of court. It's all over. Case dismissed. I can go home. The champagne is coming up in the elevator, they're icing it now."
"No, Jeff," Segal said. "I'm afraid you're going to have to wait a few weeks for the champagne."
Then he took MacDonald into his private office and broke the bad news about the judge's rulings. After that—to get it all out at once—he went on to explain that Wade Smith was going to make the opening statement:
"You're not going to do the opening?" MacDonald said. "I can't believe it. You've had nine and a half years to get ready and now you tell me, two days before the trial starts, that you're not even going to make the opening statement? Bernie, I flew three thousand miles just to hear you. Come on, now, give me a break."
"Jeff, we have Wade, he's an asset, he has to be utilized. And his greatest strength is his personality. He doesn't know the case as I do, but he has the capacity to relate to people, and that's important. He'll be working from the scenario that I gave him. I walked it through for him this afternoon. Essentially, conceptually, it's mine. The only change is that Wade will deliver it instead of me."
Segal then outlined the essence of the statement for his client. Jeffrey MacDonald was still not pleased.
"That sounds flat, Bernie, very flat. There's no zingers in there. Not one zinger. I expected you to crucify them, not just tease them a little bit."
"Jeff, the opening is just setting a tone. That's all it is. We have the whole trial to get in our zingers. And believe me, the tone will be good. Very low key. Wade will be fine. He'll do it as well as it can be done."
"Sure, sure," MacDonald said. "Don't bother, I know the rest: if he screws up, he'll work for free on the appeal."
Bernie Segal's loud laughter broke the tension. "Jeff, go home, run five miles, have a beer. And take it from me, from the one person who has never misled you: there isn't going to be any appeal."
Jeffrey MacDonald stayed up late that night, watching Saturday Night Live on TV.
For 81 percent of the people contacted by the Duke psychology professor to have said yes, they had heard of the case involving Dr. Jeffrey MacDonald, was extraordinary. In such random samplings it is rare for 81 percent of those polled to be able even to identify the President of the United States.
It seemed likely that for the remaining 19 percent unawareness ended on Sunday morning, with the publication of a front-page story in the Raleigh News and Observer. The article was accompanied by pictures of Jeffrey MacDonald in the company of his "colorful, West Coast attorney," Bernie Segal, and by old pictures of Colette and Kimberly and Kristen, and by a photograph of the boarded-up exterior of 544 Castle Drive—the murder scene still sealed after nine and a half years, pending final adjudication of the case.
As the date for trial neared, the story said, more and more people had begun to drive slowly up and down Castle Drive, staring. The woman who now lived next door to what had been the MacDonald apartment was quoted as saying she "couldn't sleep for a week," after being informed of what had happened there.
An Associated Press story printed in the Sunday paper in nearby Durham portrayed Jeffrey MacDonald as a man who lived "the good California life," complete with posh condominium, stewardess, sports car, and boat. The story also quoted Bernie Segal as having said that he'd wanted the trial moved from Raleigh to a "hip, sophisticated community," because, "God knows how a redneck stands"—a remark which Segal denied having made.
A television crew was stationed outside the Kappa Alpha house, hoping to film a glimpse of MacDonald if he emerged. News broadcasts featured hourly reports on the impending trial, even though jury selection had not yet begun.
For a final review of selection procedures, the Duke professor arrived at Kappa Alpha early Sunday afternoon. Clearly, Jeffrey MacDonald was still concerned.
"The thing that keeps me awake nights," he said, "is how valid are our starting premises? Suppose we're wrong?"
Once again, Bernie Segal spoke with reassurance. This was science, this could not fail. "Besides," he said, beginning to chuckle as he lit a pipe, "I intend to provide you with the ultimate safeguard, at great sacrifice to every principle I hold most dear: I will wear a Confederate flag in my lapel."
The mood remained upbeat all afternoon. Some of the Kappa Alpha boys brought in a keg of beer and two dozen steaks and hosted an early evening barbecue. Wade Smith came over with his banjo. Songs were sung. Jokes were told. Jeffrey MacDonald basked in the attention. It felt more like the kickoff of a political campaign—with MacDonald, of course, as the candidate—than it di
d the eve of a trial for the murder of a pregnant woman and two little girls.
By late evening, MacDonald's mother had brought out an album of family snapshots and was showing people what Jeff had looked like, in California, when he'd grown a beard. As the keg of beer neared its bottom, giddiness began to prevail. Wade Smith could be overheard telling the Duke psychologist that he had neglected to ask the one most important question of all: "Have you ever been the victim of a homicide?"
It took three days to pick the jury. Seven men, five women, all but one of them white, all but one (the same one) with at least some college education. Half were over the age of forty. Included were two accountants, a chemist, the son of a socially prominent Raleigh physician, a former Green Beret sergeant from Fort Bragg, a former North Carolina state policeman, and a woman whose son, during the school year, resided at the Kappa Alpha house.
Midway through the process, Jeffrey MacDonald said, "Every time Bernie stands up to accept one of them I feel another nail being hammered into my coffin." Both Segal and the Duke psychologist, however, were delighted with the makeup of the jury.
"Take the former highway patrolman," Segal explained. "The prosecution wanted him because he used to be a cop. But we wanted him for a better reason: because we're going to show that the evidence in this case was so badly screwed up that no decent cop would want to be associated with it."
And even MacDonald was vastly relieved at the inclusion of a former Green Beret. "That tie is so strong you'd walk across water for one another," he said. "There is no stronger bond. So at the very worst"—here, he laughed nervously—"I know I've got at least a hung jury."