Freddy and Mildred Kassab were in the courtroom throughout the process of jury selection, sitting side by side in the second row on the right, across the aisle from (though not acknowledging the presence of) Jeffrey MacDonald's mother, just as they had sat across the aisle from her sixteen years earlier in that small Catholic church in Greenwich Village.
Kassab, stocky and florid, sat fanning himself with a prosecution floor plan of the interior of 544 Castle Drive. His wife, pinched and small, sat next to him, staring straight ahead in silence. Occasionally, Freddy, his arm around her, would lightly stroke her shoulder with his thumb.
Less than ten yards from the Kassabs—after all the years of being separated from them by 3,000 miles—sat Jeffrey MacDonald. He was, as instructed, wearing a conservative, well-tailored suit. For the most part he, too, stared straight ahead, his face impassive. From time to time, as a prospective juror was being questioned, and as the Duke professor was handing up a card with a final rating, he would bend to consult with his attorneys.
At the end of the third day, with the twelve jurors and four alternates finally seated, MacDonald, carrying a briefcase, walked down the center aisle toward the rear door.
Freddy Kassab had just stepped out into the lobby to speak to reporters. By sheer chance, MacDonald reached the door at the same moment as Mildred Kassab. For the first time in more then eight years, their eyes met. He glanced away immediately. They did not speak. Her gaze—in which both immense pain and raw hatred were apparent—followed him as he walked out the door.
Driving back to the Kappa Alpha house, MacDonald said that of course he had seen her and that he had been very tempted to speak to her. "I wanted to say something like, i hope you get through this okay,' but I was afraid she'd probably take it the wrong way."
In the next day's paper, Mildred was quoted as saying yes, she had seen him too. "The only thing I could think of," she said, "was Colette, clumsy with her five months' pregnancy, trying to get away from him." No, she said, she had not been tempted to speak. "What was I supposed to say—'Good luck'?"
3
Victor Woerheide had dropped dead of a heart attack while walking to a corner store to buy a bottle of Tabasco sauce in October of 1975. To prosecute the case in his stead, the Justice Department had chosen James L. Blackburn, an assistant U.S. Attorney from Raleigh.
Blackburn was a short, cordial, soft-spoken man whose silvery gray hair and open, boyish face seemed to blend wisdom and innocence. He, like Wade Smith, was a native of North Carolina. He had, in fact, grown up on the campus of Wake Forest University, where his father had served as Methodist chaplain and from which he himself had later graduated.
Blackburn's courtroom demeanor was not that of a bloodthirsty prosecutor seeking headlines, but of a quiet, country man with a sad but inevitable duty to perform. One could, without stretching the imagination unduly, picture Blackburn as a courteous young aide to General Lee at Appomattox.
Even Bernie Segal, whose contempt for both Judge Dupree and for Blackburn's Justice Department colleague, Brian Murtagh, was boundless, admitted that Blackburn struck him as a decent man. 'Twisted and wrong," Segal said, "but decent."
Blackburn was thirty-four years old, he had a two-year-old son named Jeffrey and a daughter who was just two months old. This was the first murder case he'd ever prosecuted.
For four weeks, the prosecution presented its evidence before Judge Franklin T. Dupree, Jr., a sixty-five-year-old native of nearby Fuquay-Varina, North Carolina. Much of the time was devoted to complex explanations of the circumstantial links that bound MacDonald to the commission of the crimes. Though he had Brian Murtagh, with all his knowledge, at his side, Blackburn's early presentation seemed tentative and occasionally confused. At the end of the first week, in fact, a wire service story reported that the case against MacDonald was off to "a shaky start."
The testimony was sometimes gruesome (particularly that of the pathologists, whose autopsy descriptions were accompanied by slides of the bodies, designed to emphasize the severity of the injuries sustained). A great deal of the evidence was highly technical, and every bit of it was challenged, point by point, by Bernie Segal, who, with waving arms and a voice by turns booming and coldly sarcastic, went after prosecution witnesses like a German shepherd mauling a jogger.
Just as in 1970, every investigative blunder was exposed. The jurors, who sat silently and attentively through the long, draining days, learned—as had Colonel Rock in 1970—that the flowerpot had been stood up by a military policeman, that Jeffrey MacDonald's wallet had been stolen from under the eyes of the MPs, that the lieutenant had failed to send a patrol to look for the woman standing in the shadows, that the garbage had been emptied, the Esquire magazine read, the bedroom telephone handled, the bloody footprint destroyed, the toilet flushed, the children's fingerprints never taken, other fingerprints poorly photographed and inadvertently destroyed, Jeffrey MacDonald's pajama bottoms thrown away, MacDonald himself interviewed at the hospital while heavily sedated, and that a "known sample" of MacDonald's hair had actually come from a pony.
Nine and a half years later, Bernie Segal's imagery was still intact. "They came in like a herd of circus elephants," he said of the MPs, implying strongly once again that no valid inferences could be drawn from physical evidence so poorly preserved.
Throughout this phase of the trial, the defense was exultant. Each day, Wade Smith would leave the courtroom and, while declining to comment publicly, would privately express an ever growing sense of confidence.
"I can see it on their faces," he would say. "The jury can't believe that Jeff is even here . . .
"A wonderful day, we did nothing but gain ...
"This is not going to be as hard as we thought ..."
Even MacDonald himself grew so confident that he began to give interviews to the press. He was aware, he told one reporter, that some people found his apparent lack of emotion disturbing. "There's no question," he said, "it would be better for me if I were so distraught I could hardly get to court every day. But I think the jury will see the real me when I testify. I hope they understand that not everyone wears their heart on their sleeve."
Still, it appeared to another interviewer that "Most of his answers, even when asked about his feelings, are given matter-of-factly, almost coldly, as if he were speaking about someone else."
Only when he began to discuss his tormentors did MacDonald show sparks of real feeling, and that feeling appeared to be anger. "It took them six months behind closed doors, without a defense, to get a grand jury to issue an indictment. If that doesn't tell a normal person something, that normal person isn't thinking. . . .
"I've testified whenever they've asked. I've given them whatever they've wanted. And here we are on trial on false charges nine years later because of the mindless, middle-level federal bureaucracy, with people like Brian Murtagh who run around without any controls."
A "competent superior," MacDonald said, would have halted the prosecution before it had even gone to a grand jury, much less to trial. "Sure, I'm bitter," he said. "They're building careers on my case. But the truth has to come out sometime. They can't keep lying forever."
MacDonald said he "could not conceive" of a conviction. "That," he said, "would be the Alfred Hitchcock ending to the horror story."
To some observers, however, there were indications that MacDonald was drawing at least as close to a pair of handcuffs as he was to a chilled bottle of celebratory champagne.
It was not possible to assess the impact of the government's presentation upon the jury (except to note that none of the jurors seemed entirely unmoved by the sheer horror and sadness of it all), but Judge Franklin Dupree was proving considerably more scrutable.
Judge Dupree, who had been appointed to the federal bench in 1971 by Richard Nixon, was possessed of an unusually mobile, expressive face, and from the earliest days of the trial the expression most often seen upon it as Bernie Segal conducted cross-examination was one of di
staste.
Obviously alert, attentive, and sometimes even taking notes during Jim Blackburn's direct examination, the judge would lean back in his chair with his eyes closed, grimacing in exasperation or rubbing his temples as if his head ached during those periods when Segal was repetitively questioning a prosecution witness.
With even casual spectators openly remarking on the judge's expression, it seemed only logical to assume that it would, to . some degree, indicate to the jurors where his sympathies (or lack of sympathy) lay, and possibly even suggest to some where their own belonged.
It was not by body language alone, however, that Judge Dupree seemed to be placing obstacles along Jeffrey MacDonald's path to freedom. His rulings on several major evidentiary motions did much to shape the course of the trial.
He ruled, for example (over Bernie Segal's spirited objections), that the prosecution would be permitted to read extensively from the March 1970 issue of Esquire magazine.
"The government," Segal argued to the judge at a bench conference, "has suggested that because there was an Esquire magazine in which an article appeared about the Sharon Tate murders, that therefore this placed some idea in the defendant's mind.
"Your honor, we only need to trot out all the newspaper clippings. I mean, you would have to be probably a three-toed sloth hanging upside down in a tree to have lived in America in 1969-70 and not heard of the Sharon Tate and La Bianca murders.
"I mean, that is not a fact that has any special inference to be drawn. You know, when I buy a subscription to Harper's, I take whatever junk they send me—the good and the bad. Am I supposed to have the inference that just because there is something in there, that I chose it? Not at all. You get that with a subscription. You get a magazine. You get a subscription to it. It comes in regularly. The government says, ‘Ah, ha. From that fact we wish the jury to draw the conclusion that he read it'—that in fact he read all the things that they say: that in fact it was the source of information. It was the idea.
"There is just no conceivable way that makes logical sense. I mean, it imputes to the magazine some kind of compelling power, some kind of magic that the editors of this magazine and all others wish they had.
"It is just simply too remote to be sensibly put into this trial. I mean, it almost has the character of fantasy. Take an intelligent man. No one has to prove that MacDonald is intelligent, that he was literate, read newspapers, and knew what was going on in the world.
‘ ‘ And because he has a magazine subscription and they have chosen the article—what about all the other articles? Do we now get to introduce everything he had read in that last year? ‘ Love Thy Wife.' ‘Be Kind to Thy Children.' ‘How Happy It Is in America.' Can we introduce all that, your honor? Why not? Put that idea in his mind, too—to love his family and care for them. Why isn't that fair game?
"We will be reading Esquire magazine, your honor, for quite a while if the government is allowed to do this. We should also be entitled to show everything else he read within a reasonable time frame that would reflect on his state of mind. Why not all the chapters in the Bible that he read? Why not? That goes to his state of mind."
Without pointing out that it was Kiss Me Deadly, by Mickey Spillane, and not the Bible, that MacDonald had been reading in the time frame that immediately preceded the murders, Jim Blackburn argued for the relevancy of the Esquire material.
"We have done an analysis of those articles," he said. "And we know also what the defendant has said these people said— 'Acid and rain, groovy, kill the pigs.' A girl with long blond hair carrying a candle—this sort of thing.
"Now, if the government's theory is correct, there were no such individuals. If there were no such individuals, they had to be invented from somewhere. Because these magazine articles were read by the defendant—and that has been shown by some of the fingerprints that were found on those articles, and of course Ron Harrison has said in his grand jury testimony that MacDonald had read it and said it was wild, or something like that—it does show that MacDonald was aware of those articles.
"And I think that when you look at the articles and see that the word acid, the word rain, the word pig, a girl with long hair, and candles are in those articles—"
"Groovy?" the judge asked.
"I think so, sir," Blackburn replied.
"Groovy—what does that mean?" the judge asked.
"Far-out," Brian Murtagh interjected.
Then Blackburn continued: "I do think, your honor, that it is probative to the government's theory of the case and the fabrication of the story. I am not suggesting that he read it first, necessarily, and then got the idea. I would suggest that perhaps what happened is the killings took place and he remembered the article and used it. And that is where some of these words and things come from. The fabrication of the defendant's story could well have come from his having read the article a short time before these murders occurred."
"Mr. Segal says that everybody who knew anything, up to and including the three-toed sloth," the judge said, "used those same words, because every time you picked up a paper, there they were. I have no recollection of having read them, and I take four daily newspapers and have for about fifteen years. I remember something about the Manson case, but I don't read murder cases."
"The word acid, your honor, is part of our vernacular," Segal said. "It is found in dictionaries—"
"You are from California," the judge interrupted. "I am not sure the word acid is common parlance in Johnston County and Warren County and Harnett—the places where these jurors come from. Maybe some of them are sophisticated enough to have heard the term LSD and the use of acid as synonymous with it, but I am not so sure about that."
"In 1970," Segal said, "when this case was first brought, I was not from California. I was from Philadelphia, and even in Philadelphia we had heard of those things. And we were among the last to get the word on anything."
"Your honor," Brian Murtagh interposed, "the articles in the Esquire magazine are not limited solely to the Manson killings. There are additional articles which involve an interview by a reporter of a 'witch' in California. Apparently, they have such things in California. At least they did at that time."
"They don't have anything but pretty girls now," Judge Dupree said, "at least judging from the ones they bring here." This was a reference to one of Bernie Segal's young assistants, with whom the judge had recently enjoyed a game of tennis.
Her charms notwithstanding, he allowed the prosecution to read all that it wanted to of the March 1970 issue of Esquire magazine to the jury.
Segal's bitterest and most significant evidentiary struggle during this phase of the trial concerned the admissibility of Paul Stombaugh's work with the blue pajama top. It was Segal's contention that Stombaugh's work had been invalid and was unworthy of submission.
"The demonstration that he did in the laboratory did not replicate in any reasonable fashion the facts that were known," Segal argued. "The most transparent failure is that the demonstration does not bear any resemblance to the physical facts of the case. This was not an experiment designed by a forensic scientist to prove a point. It was a lawyer's idea of how to prove an argument. That is, can you make forty-eight holes in the blue pajama top fit into twenty-one holes in Mrs. MacDonald's chest?"
That Stombaugh had not included in his alignment the icepick holes in Colette's own pink pajama top was, Segal said, "a fatal flaw," since the icepick, as it penetrated her chest, would obviously have had to pass through that garment as well.
A second flaw, Segal charged, was that no evidence supported the contention that the pajama top, as refolded in the FBI laboratory, was in the same position in which it had first been found at the crime scene.
"If there are no facts to prove that the garment was in this position," Segal said, "then the fact that you could make forty-eight holes go into twenty-one holes—ignoring, of course, the pink pajama top—proves what? It proves I can juggle two oranges. But what does that mean to
this court? If two oranges being juggled have no relevance, the fact that I can do it has no place in the record of this case. It is a demonstration for the sake of a demonstration. It is not a demonstration for the sake of illuminating the proof of this case.
"You just can't say that everything in the world can be given to the jury. There are limits that the rules of evidence have placed even on the government's theory of the case, and I want to see those properly invoked. The potential for prejudice here is so substantial that it is unfair to the defendant to permit this.
In response, Brian Murtagh said, "We are not saying, and
Mr. Stombaugh will not testify, that the top was in precisely the same position as it was found on her body."
The government, Jim Blackburn added, contended only that Stombaugh had refolded the garment "generally" the way it appeared in crime scene photographs—with the right sleeve folded inside out and the left panel, which contained no puncture holes, trailing off alongside the body.
At that, Bernie Segal erupted. "At the grand jury, Stombaugh said he folded it exactly as it appeared in the pictures. That is his word—exact. If you try to back away from it now, his skin will be flayed all over this courtroom!"
Ignoring the outburst, Blackburn calmly reiterated for Judge Dupree the government's view of the significance of the pajama top: there were three types of blood found on it, the majority the Type A blood of Colette; at least some of that blood was on it before it was torn; MacDonald had said he'd placed it on his wife's body; the top had forty-eight puncture holes in it; doctors had testified that MacDonald had no icepick wounds; Colette, however, had twenty-one puncture holes in her chest; a pathologist had testified that these had been inflicted while her body was in a stationary position; likewise, the absence of tearing around the circumferences of the holes indicated that they had been made while the garment was stationary.