Jeffrey Robert MacDonald,
M.D. (b. October 12, 1943), was tried and convicted in 1979 for the
February 1970 murders of his pregnant wife and two daughters.
Jeffrey Robert MacDonald was born on
October 12, 1943 in Jamaica, New York. In Patchogue high school he was
voted both "most popular" and "most likely to succeed", and won a
scholarship to Princeton University. While at Princeton, MacDonald
resumed a romantic relationship with Colette Stevenson, whom he had
dated while in high school. In the fall of 1963, upon learning of
Colette's pregnancy, the couple married. Their first child, Kimberley,
was born in April, 1964.
After MacDonald graduated from
Princeton, he and his family moved to Chicago, IL where he attended
Northwestern University Medical School. A second child, Kristen, was
born in May of 1967.
The following year, upon his
graduation from medical school, MacDonald completed an internship at the
Columbia Presbyterian Medical Center in New York, NY. He then decided to
join the Army and the entire family moved to Fort Bragg, NC. MacDonald
was appointed to the Green Berets as a group surgeon in 1969.
At 3:42 a.m. on the morning of
February 17, 1970 dispatchers at Fort Bragg received an emergency call
from MacDonald, who reported a "stabbing". Responding officers arrived
to find Colette, Kimberley, and Kristen all dead in their respective
bedrooms. MacDonald was found next to his wife, alive but wounded. He
was immediately transferred to a nearby hospital.
Colette, who had been pregnant with
her third child, was lying on the floor of her bedroom. She had been
repeatedly clubbed, both her arms were broken, and she was stabbed
thirty-seven times with a knife and ice pick. Her husband's torn pajama
top was draped upon her chest. On the headboard of the bed someone had
written the word "pig" in blood.
Kimberley, then age five, was found
in her bed. She had been clubbed in the head and stabbed in the neck
with a knife between eight and ten times. Her younger sister Kristen,
age two, was also found in her bed. She had been stabbed with a knife
thirty-three times and stabbed with an ice pick fifteen times.
MacDonald's wounds were much less
severe than his family's injuries. In addition to various cuts and
bruises, he had what a staff surgeon referred to as a "clean, small,
sharp" incision that caused one lung to partially collapse. He was
admitted to the hospital, where he was released after one week.
MacDonald told investigators that on
the evening of February 16, he had fallen asleep on the living room
couch. He was later awakened by the sounds of Colette and Kimberley's
screams. As he rose to go to their aid he was attacked by three armed
male intruders. A fourth intruder, described as a white female in a
white floppy hat, stood nearby with a lighted candle and chanted "Acid
is groovy, kill the pigs." The three males attacked him with a club and
During the struggle, MacDonald's
pajama top was pulled over his head and he used it to ward off thrusts
from the ice pick. Eventually, MacDonald stated that he was overcome by
his assailants and was knocked unconscious in the living room end of the
hallway leading to the bedrooms.
When he revived, MacDonald stated
that the house was silent and he could no longer hear the screams of his
wife and older daughter. He went to his wife and tried to revive her,
but found that she was already dead. He then covered Colette was his
torn pajama top and went to check on his daughters. MacDonald told
investigators of his attempts to resuscitate each child, but they were
also beyond help. He also indicated that he stopped in the bathroom to
check on his own wounds, washing his hands while in the bathroom.
MacDonald then called the Operator asking for the Military Police and an
The army's Criminal Investigation
Division (C.I.D.) did not believe MacDonald's version of events. As they
studied the physical evidence, it did not seem to support the story told
by MacDonald. The living room, where MacDonald had supposedly fought for
his life against three armed assailants, showed little sign of a
struggle apart from an overturned coffee table and plant.
Fibers from MacDonald's torn pajama
top were not found in the living room, where he claimed that it was
torn. Instead fibers from the pajama top were found under the body of
Colette and in Kimberly's and Kristen's bedrooms. One fiber was found
under Kristen's fingernail.
The murder weapons were found outside
the back door, all three were determined to come from the MacDonald
house. The tips of surgical gloves were found beneath the headboard
where "pig" was written in blood; they were identical in composition to
a supply MacDonald kept in the kitchen.
The MacDonald family all had
different blood types — a statistical anomaly that allowed C.I.D. agents
to track what had happened in the apartment. Investigators theorized
that the fight began in the master bedroom. Colette, they speculated,
hit her husband in the forehead with a hairbrush.
As MacDonald retaliated by beating
her with a piece of lumber, Kimberley — whose brain serum was found in
the doorway — was struck, possibly by accident. Believing Colette dead,
MacDonald carried the mortally wounded Kimberley back to her bedroom,
with no choice but to finish the job.
After stabbing and bludgeoning her
(Kimberley's blood was discovered on the pajama top MacDonald said he
hadn't been wearing while in her room), he went to Kristen's room,
intent on disposing of the last remaining witness. Before he could do
so, Colette — whose blood was found on Kristen's bedcovers and on one
wall of the room — regained consciousness, stumbled in, and threw
herself over her daughter.
After killing them, MacDonald wrapped
his wife's body in a sheet and carried it back to the master bedroom,
leaving a footprint of Colette's blood on the way out.
C.I.D. investigators then theorized
that MacDonald attempted to cover-up the murders, using articles on the
Manson Family murders that he found in a issue of Esquire magazine in
the living room. He then took a scalpel blade from a supply in the
hallway closet and went to the adjacent bathroom and where he stabbed
himself. Putting on surgical gloves from his supply, he went to the
master bedroom, where he used Colette's blood to write "pig" on the
Finally, he laid his pajama top over
Colette and repeatedly stabbed her in the chest with an ice pick.
MacDonald used the phones to summon an ambulance, discarded the weapons,
and lay by the body of his wife while he waited for the military police
On April 6, 1970, Army investigators
interrogated MacDonald. Less than a month later, on May 1, 1970, the
Army formally charged MacDonald with the murder of his family.
Article 32 Hearing
An initial army Article 32 hearing
into Jeffrey MacDonald's possible guilt, overseen by Colonel Warren
Rock, convened in July 1970 and ran through September. MacDonald was
represented by Bernard Segal, a civilian defense attorney from
Philadelphia, PA. Segal mounted an effective defense of MacDonald which
concentrated on the poor quality of the C.I.D investigation and the
existence of other suspects, specifically Helena Stoeckley.
Segal presented evidence that the
C.I.D. had not properly managed the crime scene and lost critical
evidence, including skin found under Colette's fingernails. In addition,
he claimed to have located the woman that MacDonald had seen the night
of the murders in his apartment. Her name was Helena Stoeckley, and she
was a well-known drug user in the area. Witnesses claimed that Stoeckley
had admitted involvement in the crimes and several remembered her
wearing clothing similar to what MacDonald had described.
In November 1970, Colonel Rock issued
a report recommending that charges be dismissed against MacDonald
because they were "not true", and recommended that civilian authorities
investigate Helena Stoeckley. However, the post Commanding Officer upon
reviewing the Article 32 determined that there was "insufficient
evidence" to proceed and dismissed the charges on those grounds.
MacDonald received an honorable
discharge from the Army and returned to his home state of New York.
After the Article 32 hearing,
MacDonald returned to work as a doctor, briefly in New York and then in
Long Beach, California, where he was an emergency room physician at the
St. Mary Medical Center.
At this time Freddie Kassab,
Colette's stepfather, began to believe that MacDonald had killed his
daughter and grandchildren. Initially, Kassab was one of MacDonald's
greatest supporters. At the Article 32 hearing he had said, "If I ever
had another daughter, I'd still want the same son-in-law".
After MacDonald was discharged from
the Army his behavior began to raise the suspicions of his former
father-in-law. MacDonald went on The Dick Cavett Show to talk about the
murders and made several jokes about the investigation. Kassab also
began to receive phone calls from MacDonald, who claimed that he and a
group of friends had tracked down one of the killers and put him "six
feet under". After studying the Article 32 transcripts, Kassab became
convinced of MacDonald's guilt and began a successful campaign to have
him brought to trial.
On June 1, 1972 the CID submitted a
report of some 3,000 pages naming MacDonald as the chief suspect. The
Justice Department had some 30 days to review the matter but did not
decide whether or not to prosecute at that time.
Between 1972 and 1974 the case
remained trapped within the Justice Department as they struggled over
whether or not to prosecute. Finally in July 1974 a decision was made to
prosecute and a grand jury was convened in August 1974. The decision to
prosecute had largely come about due to the persistence of Freddie
Trial and Conviction
A grand jury in North Carolina
indicted MacDonald on 24 January 1975 and within the hour MacDonald was
arrested in California. On 31 January 1975 he was freed on $100,000 bail
pending disposition of the charges. On 29 July 1975, District Judge
Franklin T. Dupree Jr. denied MacDonald's double jeopardy and speedy
trial arguments and allowed the trial date of August 18, 1975 to stand.
On August 15 1975, the Fourth Circuit
Court of Appeals stayed the trial and on 23 January 1976, a panel of
that court, in a 2-1 split, ordered the indictment dismissed on speedy
trial grounds. An appeal on behalf of the Government led to an 8-0
reinstatement of the indictment by the U.S. Supreme Court on 1 May 1978.
On 22 October 1978, the Fourth Circuit rejected MacDonald's double
jeopardy arguments and, on 19 March 1979, the U.S. Supreme Court refused
to review that decision.
The trial lasted July 16-August 29,
1979 in a North Carolina courtroom. MacDonald was convicted of one count
of first-degree murder in the death of Kristen and two counts of
second-degree murder in the deaths of Colette and Kimberley. He was
immediately given three life sentences, to be served consecutively.
Immediately after the verdict
MacDonald applied for bail pending the outcome of his appeal. On
September 7, 1979, this application was rejected and an appeal on bail
was further rejected by the Fourth Circuit Court of Appeals on 20
In June, 1979 MacDonald chose Joe
McGinniss to write a book about the case. He was given unfettered access
to MacDonald and the defense during the trial. MacDonald expected that
the book would be about his innocence in the murders of his family.
However, McGinniss' book, Fatal Vision, portrayed MacDonald as a
narcissistic sociopath who was indeed guilty of killing his family. The
book contains excerpts from court transcripts and sections entitled,
"The Voice of Jeffrey MacDonald", which were based on tape recordings
made by MacDonald following his conviction.
MacDonald subsequently sued McGinniss
in 1987 for fraud based on the fact that McGinniss pretended to believe
MacDonald innocent after he came to the conclusion that MacDonald was
guilty, in order to continue MacDonald's cooperation with him. After a
trial, which resulted in a mistrial, McGinniss and MacDonald settled out
of court for $325,000.
"The Journalist and the Murderer",
written by Janet Malcolm and published in 1990, is about the
relationship between journalists and their subjects, and explores the
relationship between McGinniss and MacDonald as an example of the
author's thesis that, "EVERY journalist who is not too stupid or too
full of himself to notice what is going on knows that what he does is
On July 29, 1980, a panel of the
Fourth Circuit Court of Appeals reversed MacDonald's conviction in a 2-1
split on the grounds that the delay in bringing him to trial violated
his Sixth Amendment rights to a speedy trial. On August 22, 1980,
MacDonald was freed on $100,000 bail. He returned to work at St. Mary's
Medical Center in Long Beach, California as the Director of Emergency
Medicine. His job had been held open during the year he was
On December 18, 1980, the Fourth
Circuit Court split 5-5 to hear the case en banc and thus the
earlier decision stood. On May 26, 1981, the United States Supreme Court
accepted the case for consideration and on December 7, 1981, heard oral
On March 31, 1982, they ruled 6-3
that MacDonald's rights to a speedy trial were not violated. MacDonald
was rearrested and returned to prison. Defense lawyers filed a new
motion for MacDonald to be freed on bail pending appeal, but the Fourth
Circuit refused. MacDonald's remaining points of appeal were heard on
June 9, 1982 and his convictions were unanimously affirmed on August 16,
1982. A further appeal to the U.S. Supreme Court was refused on January
On March 1, 1985, Judge Dupree
rejected all defense motions for a new trial. Lawyers for MacDonald
appealed to the Fourth Circuit Court of Appeals, which upheld Dupree's
ruling and refused to reopen the case. On October 6, 1986 the Supreme
Court upheld the lower court's decision.
The courts ruled that Judge Dupree
had acted correctly when he refused to let the jury see a transcript of
the Article 32 military hearing, and, because this was not an insanity
trial, had also acted properly in not allowing the jurors to hear any of
the psychiatric testimony. Had he done so, the jurors would have learned
that none of the doctors hired by the defense or who worked for the Army
or government at Walter Reed Hospital, concluded that MacDonald was
psychologically incapable of committing the murders.
The courts have also ruled that the
confessions of Helena Stoeckley were unreliable and at odds with the
established facts of the case, and that her treatment at trial was
correct. During trial, she was arrested under a material witness warrant
and testified before the jury that she could not remember her activities
on the evening of the murders due to substantial drug use; witnesses to
whom she had confessed were not allowed to testify.
MacDonald was granted leave to file
his fourth appeal on January 12, 2006. This latest appeal is based on
the recent sworn affidavit of Jimmy Britt, a decorated retired United
States Marshal who worked as such during the trial. Britt states that he
heard the material witness in the case, Helena Stoeckley, admit to the
prosecutor of the case, James Blackburn, that she was present at the
MacDonald residence at the time of the murders and that Blackburn
threatened her with prosecution if she testified.
Stoeckley, however, met with counsel
for the defense prior to this alleged meeting with Blackburn, and she
told them that she had no memory of her whereabouts the night of the
Defense Attorney Wade Smith advised
Judge Dupree that Helena had testified on the stand essentially the same
as she had stated in the Defense interviews. Also, important to note
that there is record of Helena contacting Judge Dupree to claim she was
terrified, not of the prosectors, but of Bernie Segal the lead defense
On April 16, 2007, MacDonald's
attorneys filed an affidavit of Stoeckley's mother, in which she states
that her daughter confessed to her twice that she was at the MacDonald
residence on the evening of the murders and that she was afraid of the
prosecutors. Mrs. Stoeckley's past statements concerning her daughter
are at odds with the details contained in her affidavit.
MacDonald has requested to expand the
appeal to include all the evidence amassed at trial, evidence which he
claims was discovered subsequent to the trial (e.g., alleged prosecution
threats of Stoeckley) and the recently completed DNA results.
The 4th Circuit Court of Appeals
granted MacDonald's motion for a successive habeas petition and remanded
the matter back to the District Court Eastern Division for a decision.
The petition is under consideration by Judge James Fox.
MacDonald supporters claim that the
prosecution suppressed evidence in this case. In the years since the
trial defense lawyers have used the Freedom of Information Act to find
evidence that the government did not present at trial.
Unidentified fingerprints and fibers
found in the apartment were never matched to anyone known to have been
in the house prior or after the murders. However, fingerprint exemplars
of the children were not obtained and Colette's fingerprint exemplars
were of poor quality, as they were taken subsequent to embalming.
Two unidentified 22" long synthetic
hairs were found, but not pointed out specifically to the defense.
MacDonald's lawyers claim that these hairs were from the wig worn by
Helena Stoeckley, but the government contends they more likely came from
the children's dolls.
In addition, the hairs differed from
each other in composition and were found in a hairbrush, which points to
the unlikely scenario that an intruder brushed their hair at the scene
and was wearing more than one wig. A spot of blood that was either type
O or type B (MacDonald's blood type) was found in the hallway.
MacDonald supporters continue to
insist that this was not disclosed to the defense, despite the existence
of the trial transcripts online which clearly show this spot was indeed
disclosed and discussed. Supporters of MacDonald also point to black
wool fibers found on Colette MacDonald's mouth and shoulder as evidence
of intruders that the government deliberately did not report.
In 1995, two MacDonald supporters,
Jerry Allen Potter and Fred Bost, wrote Fatal Justice, a book
meant to both refute Joe McGinniss' Fatal Vision and present the
evidence they claimed had been hidden by government prosecutors.
Lawyers representing MacDonald were
given the right to pursue DNA tests on limited hair evidence in 1997 by
the Fourth Circuit Court of Appeals. After 8 years, the tests on some 15
exhibits were completed.
DNA test results released March 10,
2006, did not match Helena Stoeckley's nor her boyfriend, Greg
Mitchell's DNA. A limb hair found stuck to the bloody left palm of
Colette MacDonald's matched the DNA profile of Jeffrey MacDonald. A hair
found in Colette's bloody right palm was sourced as her own hair.
MacDonald's DNA profile also matched body hairs found on the
multi-colored bedspread from the master bed where he generally slept and
on the top sheet of Kristen MacDonald's bed where he tried to resucitate
An unsourced pubic hair was found
between Colette's legs, as well as another unsourced hair in a bedsheet,
and an unsourced hair, with root intact was found under the fingernail
of 2 year old Kristen. A judicial response to the DNA results is
MacDonald is currently imprisoned in
Cumberland, Maryland at a Federal prison. He has steadfastly maintained
his innocence throughout the years. At the urging of his wife and
attorneys, he had a parole hearing on May 10, 2005. Parole was denied,
with the recommendation that 15 more years be served before another
parole hearing, or two years if new circumstances were to arise in the
McGinniss, Joe. Fatal Vision. Signet, 1984. ISBN 0451165667
Bost, Fred and Potter, Jerry. Fatal Justice: Reinvestigating the
MacDonald Murders. W.W. Norton, 1995. ISBN 0393030008
Malcolm, Janet. The Journalist and the Murderer. Vintage,
1990. ISBN 0679731830
This website is maintained by friends and family of Jeffrey
The Jeffrey MacDonald Information Site
This website presents trial transcripts, grand jury testimonies,
depositions, declarations, CID reports, FBI reports, psychological
and psychiatric evaluations and other documents pertaining to the
Dr. Jeffrey Robert
MacDonald (Born: October 12, 1943), also known as the Green Beret
Killer, was a former member of the elite military unit, who was
tried and convicted in 1979 for the Feburary 1970 murders of his
pregnant wife and two daughters
In the early morning
hours of February 17, 1970, a brutal multiple homicide took place in the
house of Jeffrey MacDonald, a doctor with the Green Berets (United
States Army Captain) at Fort Bragg, North Carolina. MacDonald's entire
family--his pregnant wife and two young daughters--was brutally
slaughtered while he was in the house, while MacDonald survived with
MacDonald claimed that
on the night of the murders, he was attacked on his living room couch by
four intruders who also murdered his family. Despite the massive trauma
to the rest of his family, MacDonald himself suffered relatively light
injuries, save for one serious stab wound which punctured (and
collapsed) his right lung. He said that when he washed his hands and
checked himself in the bathroom mirror (before making sure that help was
on the way) "he did not even have a cut or anything".
However, when he
arrived at the emergency room doctors actually did find less serious
wounds, including knife lacerations on the abdomen, several shallow stab
wounds on his left chest and abdomen, and several bruises at his
hairline indicating mild blunt-force trauma.
MacDonald had said
that one of the intruders was a woman who was carrying a burning candle
and chanting "Acid is groovy, kill the pigs", a style of killings that
investigators found suspiciously reminiscent of the recently publicized
Manson murders. Three candle wax drippings, which were different from
one another in chemical composition, were found in the apartment.
Colette was known to be fond of burning candles, though none of the wax
could be matched to any candles in the house. Some of the wax was found
to be consistent with birthday-candle wax; other wax drippings were
studied and found to be old and filled with household debris.
(1952-1983), a heavy user of drugs whom the defense fastened upon as
possibly one of the alleged intruders, confessed and recanted many
times, and at one point said that MacDonald himself committed the
murders. Most interesting with regard to the wax drippings were that
Stoeckley claimed that her candle dripped blood, not wax. A polygraph
administered by CID in 1971 indicated that Stoeckley at least believed
she had been in the house that night, though Stoeckley was well known to
have emotional problems.
One of the most
damaging pieces of evidence against MacDonald was the fact that, despite
his story of using his pajama top to fend off frenzied, ice pick- and
knife-wielding "intruders," the punctures in MacDonald's pajama top were
found to be perfectly round, with no tearing, indicating that they were
placed in the top while the top was stationary.
claimed that he was wearing his pajama top when he went to sleep and
woke to find it still on his body, wrapped around his wrists, yet holes
in the pajama top matched holes in Colette's chest. (The defense
disputes this, saying that documents obtained through the Freedom of
Information Act (FOIA)show that while the lab was apparently able to
fold the top in such a way that the holes lined up, they could not come
up with a configuration that matches both the location and the direction
of the punctures, and that only when the technicians decided to ignore
the FBI lab's own finding of the direction of the broken fibers on each
hole were they able claim success.)
MacDonald also claimed
that he had wakened to the sounds of his wife and one daughter
screaming, and that at that exact time, he was attacked by three of the
intruders each respectively armed with a club, ice pick and knife. Yet
it was shown at trial that the weapons with which he claimed to have
been attacked were, at the same point in time, being used against his
family in other rooms. Additionally, a bloody hair of Colette's was
found entwined with a fiber from MacDonald's pajama top, and another
fiber from his pajama top was found under his youngest daughter's
An initial army
Article 32 hearing into Jeffrey MacDonald's possible guilt, overseen by
Colonel Warren Rock, convened in July 1970 and ran through September. In
November 1970, Colonel Rock issued a report recommending that charges be
dismissed against MacDonald because they were "not true", and
recommended that civilian authorities investigate Helena Stoeckley.
However, the Army's Criminal Investigation Division (CID) believed that
MacDonald was guilty, and the charges were instead dropped because of
After studying the
Article 32 transcripts, his father-in-law, Alfred Kassab (who was
originally supportive of his son-in-law, believing him to be innocent),
became convinced of his guilt and began a successful campaign to have
him brought to trial.
A grand jury in North
Carolina indicted him on 24 January 1975 and within the hour MacDonald
was arrested in California. On 31 January 1975 he was freed on $100,000
bail pending disposition of the charges.
On 29 July 1975
District Judge Franklin T. Dupree Jr. denied MacDonald's double jeopardy
and speedy trial arguments and allowed the trial date of August 18, 1975
On August 15 1975 the
Fourth Circuit Court of Appeals stayed the trial and on 23 January 1976,
in a 2-1 split, the indictment was dismissed on speedy trial grounds. An
appeal on behalf of the Government led to an 8-0 reinstatement of the
indictment by the U.S. Supreme Court on 1 May 1978. On 22 October 1978
the Fourth Circuit rejected MacDonald's double jeopardy arguments, which
was affirmed by the U.S. Supreme Court on 19 March 1979.
The trial lasted July
16-August 29, 1979 where he was convicted of one count of first-degree
and two counts of second-degree murder. He was given three life
sentences, to be served consecutively. Immediately after the verdict
MacDonald applied for bail pending the outcome of his appeal. On 7
September 1979 this was rejected and an appeal on bail was further
rejected by the Fourth Circuit Court of Appeals on 20 November 1979.
On July 29, 1980 the
Fourth Circuit Court of Appeals reversed MacDonald's conviction in a 2-1
split on the grounds that the delay in bringing him to trial violated
his Sixth Amendment rights to a speedy trial.
On August 22, 1980,
MacDonald was freed on $100,000 bail. He returned to work at St. Mary's
Medical Center in Long Beach, California.
On December 18, 1980,
the Fourth Circuit Court split 5-5 to hear the case en banc and thus the
2-1 decision stood.
On May 26, 1981, the
United Stated Supreme Court accepted the case for consideration and on
December 7, 1981, heard oral arguments.
On March 31, 1982,
they ruled 6-3 that MacDonald's rights to a speedy trial were not
violated. Technically, only the Fourth Circuit Court of Appeals could
revoke MacDonald's bail but Judge Franklin T. Dupree did so anyway.
MacDonald shouted to news reporters "they had no right to revoke my
bail!" before being driven to the FCI Terminal Island.
After attempting to be
freed on a new bail in April 1982, the Fourth Circuit refused.
MacDonald's remaining points of appeal were heard in June 1982 and his
convictions were unanimously affirmed. A further appeal to the U.S.
Supreme Court was refused on January 10, 1983.
MacDonald lost all of
his appeals, and the courts ruled that the judge at the original trial,
Judge Franklin Dupree, had acted correctly when he refused to let the
jury see a transcript of the Article 32 military hearing, and, because
this was not an insanity trial, had also acted properly in not allowing
the jurors to hear any of the psychiatric testimony. Had he done so, the
jurors would have learned that all of the doctors at Walter Reed
Hospital, with the sole exception of Sadoff who was hired by the
defense, concluded that MacDonald most certainly could have committed
have claimed that the prosecution suppressed evidence in this case, but
the courts ruled that no suppression had taken place. Unidentified
fingerprints and fibers found in the apartment amounted to nothing,
since prints and hair samples of the children were never taken, and
since every home has many fibers, hairs and fingerprints that belong to
no one and no item in the house. Moreover, Stoeckley's fingerprints and
hair samples were obtained, compared to the prints and hairs found in
the house, and were found not to match.
He is currently
imprisoned in Maryland at a Federal prison. He has steadfastly
maintained through the years that he would not ask for parole because it
would mean he must admit remorse to the parole board. But he finally did
apply and had a hearing on May 10, 2005. Parole was denied, with the
recommendation that 15 more years be served before another parole
A best selling book
was written about the case called Fatal Vision by Joe McGinnis.
The book is made up almost entirely of direct quotations from trial and
grand jury transcripts, the signed statements of witnesses, and Jeffrey
MacDonald's own words (though his defense charges that McGinniss
radically altered the quotes by stringing together sentences from
hundreds of pages apart, and misquoting medical texts, in order to make
MacDonald sound like the psychotic killer McGinniss was painting him to
be). In Fatal Vision, the author suggested that MacDonald killed
his family in a fit of psychotic rage due to taking amphetamines.
Although this was only a theory, there are items of evidence to support
it, including but not limited to MacDonald's own admission that he was
using amphetamines, and his telling Dr. Sadoff that it was a "weird
coincidence" that his brother Jay had also suffered a psychotic
break with reality after abusing amphetamines. The defense claims that
MacDonald was tested for drug use, however he was not tested for the
presence of amphetamines, as the equipment available to CID was not
capable of performing this test.
In 1993, another book
about the MacDonald case entitled Fatal Justice appeared. Its basic
claims are that:
1. The army botched
the crime scene, allowing too many people to tramp through it and
contaminate evidence. The book does not tell the reader that none of the
many evidentiary items found against MacDonald were "contaminated," nor
does it explain how any MP, medic or investigator managed to carry away
all evidence of intruders while leaving only evidence that pointed to
MacDonald as the murderer.
2. The neighbors saw
people who might have been the intruders, contrary to the government
assertion. The book does not tell the reader that timelines do not
match, nor do they emphasize that countless people matched the
descriptions of the alleged assailants but none were found to have any
involvement in the crimes.
3. There was evidence
of other people at the crime scene, including a bloody palm print on the
master bedroom headboard that did not match MacDonald (and was listed on
reports, and testified about, by the government in such a way as to
conceal this fact); brown hairs under the fingernails of the little
girls (MacDonald is very blond); a brown hair in the hand of Colette,
MacDonald's wife; a blond wig hair (which the government claimed
belonged to a doll, but which the authors say was too long--20
inches--to have matched any of the small, short hairs of the girls'
dolls); and black wool fibers on the club which could not be matched to
anything in the house. The actual case records show that there was no
"bloody palm print" found; Potter and Bost had simply taken an
unidentified partial print and put it together with other blood found,
to make a "bloody palm print." MacDonald was also shown on official
reports as having brown hair, not blond. No person ever testified that
any hair was found under Kristen's fingernail, and the hair from
Kimberly's fingernail scrapings is not talked about in the defense's
recent filings. As for "wig hair," nowhere in Janice Glisson's lab notes
does she refer to "wig hairs," and in fact the synthetic fibers were of
different compositions and were never matched to any wig at all, much
less any wig ever worn by Helena Stoeckley.
4. That the government
systematically manipulated or surpressed this information--denying the
defense the handwritten lab notes that indicated evidence was
exculpatory, but refusing to let them test the evidence themselves. They
document one case where a lab technician specifically notes that she is
not going to turn over potentially exculpatory material, and describe
the government repeatedly making evidence physically inaccessable, or
accessible in such a way that it was not reasonable to expect the
defense to find anything. This also was misinformation for the reader,
since study of Janice Glisson's R-11 note shows that the words "will not
be reported by me" were actually deliberately taken out of context, and
her note actually says she "...did not label all the vials containing
fibers and hairs (#1, #7, #8), but gave #'s and slide comparisons to
these #'s, since they will not be reported by me." This is because she
was not assigned to do those comparisons; Dillard Browning was.
examination, the courts determined that the prosecution had not wrongly
withheld any evidence: "In short, what MacDonald ascribes to Murtagh's
bad faith manipulation of testimony at trial appears to the court to be
the result of factors unrelated to prosecutorial misconduct. The court
has had the opportunity to observe the conduct of counsel for the
government and for MacDonald over the last sixteen years and has found
all counsel, without exception, to have performed in a diligent and
professional manner. While there have been sharp conflicts over a
multiplicity of procedural and substantive issues, the court has not
perceived any instance where attorneys for either side crossed the
boundary between zealous advocacy and impropriety. Any suggestion that
the government engaged in conduct intended to deny MacDonald his right
to a fair trial is unsupported by the extensive record in this action."
5. The judge in the
case, Judge Dupree, may have been prejudiced against MacDonald because
his son-in-law was involved in the initial army case, and at any rate
was excessively deferential to the prosecution. The court declared that
"Appellant's claims that Proctor interviewed Stoeckley, concluded that
MacDonald killed his wife in a heat of passion, went to Washington to
persuade the Justice Department to prosecute MacDonald and volunteered
to furnish Justice Department files to the Army, are based upon an
unsubstantiated newspaper article (see J.A. 1856-58). Such evidence is
plainly incompetent to establish the truth of these facts. See, e.g.,
Fed. R. Evid. 802. In any event, such allegations, even if correct
(which they are not), do not alter in the least the fact that Proctor
never assumed a protective role in the MacDonald case before or during
Judge Dupree's involvement in it." The court twice characterized Judge
Dupree's conduct in handling the trial of this case as "admirable."
6. That the government
ignored potential perpetrators such as Helena Stoeckley, who had
confessed to being in the house to multiple people. This is bolstered by
the recent confession of Jimmy Britt, a former US marshal, who said that
he was present in 1979 when Helena Stoeckley confessed that she had been
in the house on the evening of the murders to prosecutor James Blackburn
and others. According to Britt, Blackburn replied "If you testify before
the jury as to what you have told me, I will indict you for murder." The
following day, Ms Stoeckley testified that she had amnesia about the
night of the murders. However, Britt's claim that he withheld this
information out of a sense of loyalty to the government and Judge Dupree
is tainted by the fact that if true, he allowed his friend to conduct a
trial without telling him of this information, and by the fact that
Britt retired in 1990, some fifteen years before coming forth with this
information. The defense admits that Stoeckley told the same story to
them as she told to the prosecutor and jury, thereby undermining and
contradicting another of their claims that she told a different story to
the court than she told to the defense. Missing in Britt's affidavit are
any recollections on Britt’s part that Helena told the prosecutor that
she, or anyone else, murdered the pregnant wife and two small daughters
of the MacDonald family or any details that might support that Helena
was ever in the MacDonald apartment.
7. That given the
evidence of possible innocence, and prosecutorial misconduct, MacDonald
deserves a new trial. Current copies of the book do not bring the reader
up to date by informing him that the courts found no evidence of
possible innocence, nor did the court find any prosecutorial misconduct
8. That MacDonald may
have been the victim of a coverup by higher-ups at Fort Bragg, whose
children were associates of Stoeckley and her friends, and could have
been implicated. The scenario would be that they were covering up for
their children, rather than trying to "get" MacDonald--but when he was
caught up in the net, they did not come forward. This is, however,
The authors do not go
into MacDonald's behavior subsequent to the murders, such as his
appearance on the Dick Cavett show, which at the very least betrayed a
staggering lack of normal affect, and his even stranger decision to tell
his father-in-law that he had actually tracked down and killed one of
his wife's murderers. Nor do they really address the possibility that
Stoeckley was simply a hysterical young girl--akin to the batty college
roommate who thinks she's a witch. They offer "evidence" that Stoeckley
knew about the broken rocking chair in the house, which they say had not
appeared in any news reports, but in fact, a picture of the horse had
been published in the newspaper the morning after the murders, and a
picture of the horse was shown to Stoeckley by MacDonald's lawyer,
Bernard Segal, during the trial in 1979.
The authors claim that
psychiatrists, both military and civilian, had examined MacDonald before
the Army's Article 32 hearing in 1970 and said he was sane and normal.
However, examination of the facts shows that all of the doctors at
Walter Reed Hospital concluded that MacDonald indeed was completely
capable of committing these horrific crimes, and only one doctor -- who
was hired by the defense -- disagreed.
It was implied that no
bloodstains were put on MacDonald's pajama top before it was torn.
Stombaugh (FBI) testified at trial that despite MacDonald's story of
waking in the hallway after the attack, with his pajama top still
wrapped around his wrists, the pajama top was stained with Colette's
blood before it was torn. The authors argue, however, that by the time
of the trial, Stombaugh himself was unable to discern any spot on which
the bloodstain continued across the tear onto the other side;
Stombaugh's explanation was that the stains must have faded in the 9
years between the murder and the trial.(Fatal Justice, p. 146) The book
also argues that Judge Dupree should have allowed the defense wider
latitude to impeach Stombaugh's credibility, since other technicians in
the lab disagreed with his findings, and because his credentials were in
quesitoning at the trial . . . Stombaugh said he received his bachelor
of science degree in 1949 from Furman University in Greenville, South
Carolina, with a major in biology and a minor in chemistry . . . a
defense reseracher contacted Furman University seeking facts. Thus, when
Segal began his cross-examination, he was armed with new information and
attempted to show through questioning that Stombaugh had received only
one year of instructin in chemistry, that his chemistry grade had been
minimal, and his grade in physics had been even worse. But Judge Dupree,
visibly angry at such attempts to discredit the former head of the FBI
lab's chemistry section, quickly cut the effort short."
accepted Stombaugh as an expert, and the jury found Stombaugh to be
Potter and Bost also
make some mention of gloves found in the apartment, implying that these
were worn by "intruders." These gloves were, in fact, oven mitts. They
also make much of the fact that Stoeckely and friends match his
description, even though MacDonald may have seen them elsewhere, and
thus could have based his description on real people. Potter and Bost do
not inform the reader that the summer before the murders, MacDonald was
seen with people (the so-called "New York Four") who matched the
descriptions he later gave, nor do they inform the reader that in
December 1970, ten months after the murders, MacDonald viewed the arrest
records of the New York Four and, despite the fact that they matched his
descriptions, he said nothing about it to anyone.
DNA test results
released March 10, 2006, showed that neither Stoeckley's nor Mitchell's
nor any other "intruder's" DNA matched that in any of the "crucial"
exhibits chosen by the defense. The results also showed that the hair
which MacDonald has repeatedly described as being "clutched" in
Colette's hand and which he has claimed for 36 years could only have
come from her murderer, was found to be his very own.
JEFFREY MACDONALD CASE - GREEN BERET MURDERS
Certificates of death were obtained
for each of the decedents. The certificates were all dated February 17,
1970 and reflected that Colette, Kimberly and Kristen MacDonald died in
their home at Fort Bragg, North Carolina located in Cumberland County at
an unknown time. They were pronounced dead by Dr. William Neal.
The following information is taken from the finding
of that report:
Dr. George Gammel was the doctor at Womack Army
Hospital who performed the autopsy of Colette Kathryn MacDonald and
reported that she died as a result of blood loss resulting from multiple
stab wounds of the thorax and neck area. Three types of weapons were
used in the attack of Colette, a blunt object, a knife and a sharp
object described as an ice pick type weapon. At least two weapons were
used in the stabbing of her, one being a paring knife and the other an
ice pick type weapon. Colette’s injuries was described as three deep
lacerations, one at the right temple which had a piece of tissue missing,
this was surrounded by a large black and blue area coving the right eye.
The second laceration was located over the left
temple and the third at the midline of the forehead. There was a smaller
laceration about the right ear, a small superficial laceration of the
upper lip, bruising on the right and left side of the chin with more
bruising on the right side.
There were nine deep incisional wounds on the front
of her neck, seven additional incisional wounds found located on her
chest. Four of the later stab wounds were found in the upper chest. The
remaining stab wounds were found on her right chest. Twenty one small
puncture type wounds were found on the left chest mostly over the breast
area. Three small puncture wounds were found on the front of the left
Numerous bruises and superficial abrasions were found
on her body. Her right wrist was fractured and the inner aspect of her
arm there was extensive bruising and superficial abrasions. Her right
hand and fingers had black and blue areas associated with abrasions. Her
left arm was fractured in two places, one on the lower part of the arm
resulting in the bone being pushed in an upward motion that broken again
just below the elbow causing the bone to penetrate the skin. There were
several excoriations/scratches on the right lower leg.
Two distinct types of penetrating wounds were
identified. Twenty one of the small round wounds that was present over
the thorax area and left upper arm penetrating to a depth of 4 cm. The
stab wounds were describe as sixteen elliptical gaping incisional wounds
with sharp edges, 1.5 cm in length and penetrating to the maximum of
about 4 cm in depth. Most of the wounds appeared perpendicular to the
surface of the body.
There was a skull fracture present beneath the center
of the forehead. It is true that some of the head wounds she sustained
she could have survived them if she had immediate treatment but mostly
likely would have left her cosmetically disfigured as a result of them.
She was found to be pregnant with a male fetus, four
to five months gestation with no gross deformities noted. There is no
record or the blood type for the fetus. A vaginal smear revealed
degenerating spermatozoa heads without tails which is indicative of
sperm being deposited seventy two hours prior to the smear being done on
February 17, 1970. There is no record of any test done on the sperm to
determine the blood type.
Her laboratory results reported that there was a
small amount of Benadryl present in the liver and urine and a small
amount of alcohol present 0.3mg/ml in the blood. All other toxicological
test was negative for dangerous drugs and narcotics.
The time of death was placed at 3:00 am but only as
an approximate time.
Dr. William Hancock was the doctor who performed the
autopsy on Kimberly Kathryn MacDonald and reported that she had received
multiple blunt blows to the right side of her head. It is thought that
the first blows were received standing near or within the doorway of the
master bedroom based on the amount of her blood found in that location
as well as brain serum. She sustained further injuries which are thought
to have taken place in her bed where she died. The number of blows
cannot be known for sure, but it is apparent that there were at two and
possibly more. The direction of the blows is slightly equivocal, but
appeared that they varied from the horizontal by only a few degrees. It
was also reported that it was impossible to determine if the blows were
sustained from the front or back nor was it possible to determine the
position of the body at the time the blows were sustained. The blows
were sufficient to result in a concussion, comatose state and possible
Lacerations of the trachea in part were thought to be
inflicted prior to death and in conjunction with the head blows were
also sufficient to cause death. The head wounds were the first to have
been sustained. The blows to head resulted in multiple fractures at the
base of the skull; the right calvarium was slightly dislocated and
fractured through the entire thickness. The color and contused areas of
the brain are consisted with blows to the right lateral skull and
There were eight to ten penetrating wounds
overlapping each other making it somewhat difficult to count the exact
number on the center right neck area. These lacerations were consisted
with stab wounds caused by a single edge sharp instrument resulting in
them being an inch wide and penetrating to at least 5 cm in depth. The
stab wounds appear to have entered at the right angle of the prone body.
The size and pattern are consisted with being inflicted with a paring
Her right eye was recessed, her nose broken and
deviated to the left her jaw was fractured. There were overlapping
irregular abrasions and bruising on the right check, right ear and right
mastoid area. She had a minor bruise on her left thigh and one on each
The report concluded that the time of death for
Kimberly could vary from early evening of February 16 to 3:42am February
17, 1970. Her death could have occurred before, close proximity to or
later than the other two victims. Cause of death was loss of blood. No
toxicological examination was done.
Three types of weapons were used in the attack of
Kimberly, a blunt object, a knife and a sharp objection described as
being ice pick like weapon.
Dr. William Hancock was also the doctor who performed
the autopsy on Kristen Jean MacDonald and reported that she sustained
multiple stab wounds. She sustained all her injuries in her bedroom and
there is no evidence to refute the assumption that they were all
sustained while she was in her bed. The ones in the chest and one in the
neck was described as gaping. Five circular type wounds penetrated deep
into her chest. There were ten similar shaped wounds on the right chest
area. These wounds did not penetrate deeply.
The neck had two circular wounds similar to the
previous ones mentioned and was shallow on the right and center areas of
the neck. There were multiple small pen point hemorrhage areas on the
skin, bruising on the left lateral neck area and a small bruise on the
left side of her chin. The right lateral neck had superficial abrasions
and the superior portion of the right shoulder as well.
The anterior and posterior neck wounds appear to be
right angle to the prone body in its head to toe plane, but from
multiple angles from side to side. The rotation angle of the weapon
varied and spacing of the wounds was in no pattern other than being
primarily in the body midline and in a group of four to five wounds per
group. The gaping posterior gaping wounds were more bruised than the
anterior chest wounds.
The neck and trachea showed minor spaced hemorrhage
and the intra-trachea bloody fluid was not clotted. This would suggest
that the stab wounds to the neck, trachea and anterior chest were
sustained after dead or when she was in the final stages of death.
The circular puncture wounds did not penetrate deep
enough to be considered lethal. The angle of these wounds is at right
angles to the plane of the prone body in two direction, north to south
and east to west. Ten of those wounds were in the upper posterior back
and two were over the shoulder blade. Contusions on the left side of the
neck of the neck, left chin, right buttocks and right elbow show no
superficial markings. Cause most likely by contact with a soft object of
variable force. The abrasions on the right side of the neck and upper
shoulder described as being caused by a blunt object and those on the
shoulder show a heaping of the skin at the lower edge of the abrasion
which suggests the blows were sustained in a downward motion.
On the right hand there was a through and through
laceration in the middle of the ring finger and three superficial on the
back of the same finger. On the palm surface of the right index finger
there was a triangular flap of skin that had been incised from the
subcutaneous tissue. In the web between the thumb and index finger on
the right hand a superficial incision with sharp border 1.0 cm in length.
The time of death placed from early evening of
February 16, 1970 until February 17, 1970 when the MP’s arrived. The
pathologist could not place the time of death in relation to that of the
other decedents, that there is no specific data related to the murders
and that variable influencing judgment of time of death are numerous and
of considerable magnitude.
Again discussing the time of death for the victims it
was impossible to reconstruct accurately the time of death or time span
when the victims were assaulted or the time of the assault. Dr. Neal
reported that there was distinct cooling of the remains when he examined
them which suggest that the victims had been dead for more than one hour
at the time of his examination on early morning February 17, 1970.
It is impossible to determine where Colette was when
she received her fatal injuries, many may have been received somewhere
else other than where she was found. There was a burn type abrasion
encircling her right bicep was reported that it resembled a rope burn.
Government records report that it could represent a hard impact from the
sharp edge of the wooden club which could have flattened the underlying
muscle as well as some kind of stretching or pulling of her pajama
shelve tightly encircling her arm.
Abrasions to her mouth indicate that they were caused
by a blunt impact, injuries to her forearm indicates blunt blows by the
The knife wounds to Colette’s chest would have been
rapidly fatal. The injuries caused by the blunt object was enough to
cause death, but not necessarily fatal in a few minutes.
As to Kimberly, the blunt injuries to the head or the
knife wounds to the neck were most likely fatal. An exact number of
blows struck to the head and face is impossible to determine. Judging
from the injuries the amount was at least half a dozen or more.
Some of the ice pick wounds on Kristen’s chest did
not penetrate deeply as the knife wounds had. This is somewhat strange
because an ice pick has the handle and the length of the pick with the
sharp edge, therefore making it penetrate deep if delivered with the
same force to that used with the knife. It is almost like they were
hesitation type wounds just to add around the other ones that of course
would cause pain, but not life threatening.
The stab wounds to her back were perpendicular to the
body lying in a prone position. There is nothing to indicate as has
been surmised by the investigators that she was removed from her bed,
placed over Jeffrey’s lap and stabbed in her back. There is nothing to
indicate that her injuries were not sustained in her bed.
In making a determination as to whether the assailant
(s) stabbing the victims the victims were right or left handed could not
be made since the relative position of the assailant (s) to the victims
is unknown. The only one in which there is a suggestion of position is
in Kimberly where an impression is that the wounds extended to the neck
area. If she was on the right side of the bed as found during the crime
search and lying on her back, then it is suggested that these wounds
were inflicted by a right handed person.
DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
No. 75-26-CR-3, No. 90-104-CIV-3-F
OF AMERICA, Appellee,
JEFFREY R. MACDONALD, Appellant
Filed August 29, 1997
Decided September 2, 1997
Motion to Reopen 28 U.S.C. § 2255 Proceedings and for Discovery DENIED.
Government's Motion to Dismiss 28 U.S.C. § 2255 Petition for Lack of
Jurisdiction and Suggestion, in the Alternative, to Transfer to the
Court of Appeals, DENIED IN PART and ALLOWED IN PART. MacDonald's
Motion for Leave to File Supplemental Affidavit ALLOWED.
C. FOX, Chief United States District Judge
matter again is before the court on Jeffrey MacDonald's "Motion to
Reopen 28 U.S.C. § 2255 Proceedings and for Discovery," filed April
22, 1997 ("motion to reopen"). MacDonald has filed an extensive
memorandum of law and hundreds of pages of affidavits and exhibits in
support of his motion to reopen. In response, the Government filed on
May 12, 1997, a motion to dismiss and suggestion, in the alternative,
to transfer the matter to the Court of Appeals, along with a
memorandum of law. MacDonald replied to these Government filings on
May 27, 1997. Also pending before the court is MacDonald's motion for
leave to file a supplemental affidavit, which the Government opposes.
undersigned drew this matter following the death of the Honorable
Franklin T. Dupree, [**2] Jr., who presided over the trial and all
subsequent proceedings herein until his death in December, 1995, and
the recusal of the Honorable Malcolm J. Howard by Order of April 25,
1997. The court has waived the page limitations for supporting
memoranda so that both parties might fully present their positions.
The undersigned has carefully read and considered everything the
parties have filed. Neither party has requested oral argument on the
motion to reopen, and the court finds that none shall be necessary for
a resolution of the motion. n1 Local Rule 4.09, EDNC. While the court
DENIES the motion to reopen, the court TRANSFERS this matter to the
United States Court of Appeals for the Fourth Circuit for
consideration of certification as a successive motion under 28
U.S.C. § 2255. 28 U.S.C. § § 2255, 2244, as amended by Pub. L. No.
104-132, Title I, § § 101, 105, 106, 110 Stat. 1217, 1220 (1996).
Accordingly, the Government's motion to dismiss and suggestion, in the
alternative, to transfer to the Court of Appeals, is DENIED IN PART
and ALLOWED IN PART. Finally, MacDonald's motion for leave to file a
supplemental affidavit is ALLOWED.
court will not grant MacDonald's request for an evidentiary hearing,
MacDonald's Reply at 1, because, as explained fully below, he has not
shown sufficient evidence of a "fraud upon the court."
Statement of the Case
By his motion
now before the court, MacDonald seeks to reopen the proceedings on his
petition for post-conviction relief, filed pursuant to 28 U.S.C.
§ 2255 on October 19, [*1059] 1990 ("the 1990 petition"). Judge
Dupree denied that 1990 petition by Order dated July 8, 1991. United
States v. MacDonald, 778 F. Supp. 1342 (E.D.N.C. 1991). The United
States Court of Appeals for the Fourth Circuit affirmed. United States
v. MacDonald, 966 F.2d 854 (4th Cir.), cert. denied, 506 U.S.
1002, 121 L. Ed. 2d 542, 113 S. Ct. 606 (1992). This court will not
again repeat in detail the circumstances of the murder of MacDonald's
family, his subsequent conviction for those murders, or the numerous
appeals and other legal proceedings herein. However, a brief
recitation of the history of this famous case and, particularly, the
proceedings on the 1990 petition which MacDonald seeks to reopen by
his motion, is necessary to an understanding of the motion and its
an Army physician living at Fort Bragg, North Carolina, with his wife,
Colette, and two young daughters, Kimberly and Kristen. In the early
morning hours of February 17, 1970, Colette, [**4] Kimberly, and
Kristen were brutally clubbed and stabbed to death in their home.
MacDonald, who was present in the home, told military police officers
who responded to his call for help that he and his family had been
attacked by a group of drug-crazed hippie intruders consisting of
several men and a blond woman wearing a floppy hat. He has stood by
this story ever since. In fact, shortly after the murders, a woman
named Helena Stoeckley surfaced who generally fit MacDonald's
description and who related to several individuals her belief that she
had been involved in the crime.
However, because of the physical evidence found at the crime scene,
Government investigators became convinced that MacDonald himself had
committed the murders. The crime scene yielded forensic evidence which
was inconsistent with MacDonald's story that he struggled with
intruders who murdered his family and wounded him. Following numerous
legal twists over the course of many years, MacDonald came to trial in
Raleigh in July, 1979, for the murder of his family. A crucial moment
in the trial came when the defense called as a witness Helena
Stoeckley, whom authorities located in South Carolina and took into
custody [**5] pursuant to a material witness warrant. Stoeckley did
not confess on the witness stand; rather, she testified that, due to
heavy drug use on the night of February 16, 1970, she had no memory of
the critical hours. She did admit, however, to owning a floppy hat and
a blond wig, which she had burned shortly after the murders for fear
that it might link her to the crimes.
Stoeckley did not testify as MacDonald had hoped, he sought to call as
witnesses those to whom Stoeckley had earlier related her belief of
her involvement. Judge Dupree, however, after a voir dire examination
of these proposed witnesses, would not allow the testimony because of
the utter unreliability of Helena Stoeckley and the lack of any
corroborating evidence of her presence in the MacDonald home on the
night of the murders. On August 29, 1979, the jury convicted MacDonald
of two counts of second-degree murder and one count of first-degree
murder, and this court sentenced him to three consecutive terms of
life imprisonment. Following further legal proceedings, the United
States Supreme Court denied certiorari on MacDonald's final direct
appeal in 1983.
1984, MacDonald filed his first post-conviction motions [**6] for a
new trial and for a writ of habeas corpus, on the basis of newly
discovered evidence and other grounds. Judge Dupree denied the motions,
and the Fourth Circuit affirmed. United States v. MacDonald,
640 F. Supp. 286 (E.D.N.C. 1985), aff'd, 779 F.2d 962 (4th Cir. 1985),
cert. denied, 479 U.S. 813, 93 L. Ed. 2d 22, 107 S. Ct. 63 (1986).
For a list of citations of all previously reported opinions in this
matter, see MacDonald, 778 F. Supp. at 1345.
The 1990 Petition
MacDonald filed a second petition for a writ of habeas corpus on
October 19, 1990, the petition which he now seeks to revive by the
motion to reopen. In the 1990 petition MacDonald sought "to vacate his
conviction on the grounds that the prosecution... withheld laboratory
notes written by government agents which would have aided the defense,
and exploited the suppression of the... lab notes by knowingly
presenting a false [*1060] and perjurious picture of the evidence
and the underlying facts." 778 F. Supp. at 1344. MacDonald
based [**7] his petition in part on handwritten laboratory
notes regarding unmatched blond synthetic hairs, as long as 24 inches,
found on a hairbrush taken from the MacDonald home. He argued that the
prosecution's failure to turn over to him these lab notes prior to
trial violated the doctrine of Brady v. Maryland, 373 U.S. 83,
10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and its progeny, because the
notes and the synthetic hairs themselves would have corroborated his
account of the murders, that a group of drug-crazed hippies, including
Helena Stoeckley in her blond wig, broke into his house and attacked
him and his family. MacDonald, 778 F. Supp. at 1349. MacDonald
also argued that the prosecution's manipulation of the trial testimony
of expert witnesses to conceal the existence of hair and fiber
evidence violated his constitutional rights under Alcorta v. Texas,
355 U.S. 28, 2 L. Ed. 2d 9, 78 S. Ct. 103 (1957), and its progeny. MacDonald,
778 F. Supp. at 1349.
denying the 1990 petition, Judge Dupree first determined that the
allegedly suppressed evidence was not material-- that is, that the
jury would not have acquitted MacDonald had his lawyers been aware of
the allegedly [**8] suppressed lab notes at the time of trial. The
Close analysis of the actual fiber evidence at issue reveals that the
fibers provide little, if any, support for MacDonald's account of the
crimes. In order to formulate its response in this action, the
government submitted the fibers and hair at issue to an FBI forensic
examiner, Michael P. Malone, for reexamination. According to Malone,
the blond synthetic fibers found in Colette's clear-handled hairbrush
and discussed in the lab notes were not consistent with blond wig
hairs from any known wig fibers currently in the FBI laboratory
reference collection. Of the four synthetic fibers from the brush
which have been analyzed, one matches a grey wig reportedly owned by
Colette and three are composed primarily of "saran," a substance which
is not suitable for human wigs, but is used to make mannequin and doll
hair, dust mops, and patio screens. MacDonald has presented no
evidence that blond saran fibers have ever been used in the
manufacture of human wigs. While MacDonald argues that Stoeckley's
blond wig, which was described by one witness as "stringy," may have
been a mannequin wig, such speculation is unsupported by [**9] any
evidence in the record.
Id. at 1350-51.
court also found, however, alternate, independent bases for denying
the 1990 petition. Judge Dupree found that the Government attorneys
had not violated the requirements of Brady because, prior to trial,
they afforded MacDonald's experts the opportunity to examine and test
the actual fibers at issue, and because the Government attorneys had
not read the lab notes regarding the fibers and were not aware of any
potentially exculpatory material therein. Id. at 1353-54. Finally,
Judge Dupree found the 1990 petition barred by the doctrine of abuse
of the writ, since the lab notes, the information upon which the 1990
petition was based, were in MacDonald's possession in 1984, when he
filed his first petition, and MacDonald had failed to show "cause and
prejudice" or "that a fundamental miscarriage of justice would result
from a failure to entertain the claim." Id. at 1356-60 (quoting
McCleskey v. Zant, 499 U.S. 467, 113 L. Ed. 2d 517, 111 S. Ct. 1454
(1991)). Thus, the court denied the 1990 petition on three separate
and independent grounds-- that the "new evidence" would not have been
material to the outcome of [**10] the trial, that the mandates
of Brady were not violated by the Government attorneys, and that the
1990 petition was procedurally barred by the doctrine of abuse of the
Fourth Circuit Court of Appeals affirmed on only the third ground,
abuse of the writ, declining to reach the merits of the petition.
find that MacDonald does not meet the stringent requirements of
McCleskey v. Zant, 499 U.S. 467, 113 L. Ed. 2d 517, 111 S. Ct. 1454
(1991), necessary to overcome dismissal of a second or subsequent
collateral claim for abuse of the writ.... Accordingly, we affirm that
portion of the district court's opinion dismissing MacDonald's
petition as an abuse of the writ [*1061] and decline to reach
the merits of his petition.
United States v. MacDonald, 966 F.2d 854, 856 (4th Cir.), cert. denied,
506 U.S. 1002, 121 L. Ed. 2d 542, 113 S. Ct 606 (1992).
The Motion to Reopen
MacDonald seeks to have the 1990 petition re-opened on the ground that
the government submitted to this Court affidavits of FBI Special Agent
Michael P. Malone which were materially false and misleading
concerning facts which were central to this Court's [**11] dismissal
of the 1990 petition, and to the Fourth Circuit Court of Appeals'
affirmance of that dismissal, namely, whether or not certain long
blond fibers made from a substance called Saran, found at the crime
scene, were used in the manufacture of wigs for human cosmetic
purposes prior to the time of the crime.
to Reopen at 1.) MacDonald attacks two affidavits of Michael P. Malone,
senior examiner of the Hairs and Fibers Unit of the FBI Laboratory in
Washington, D.C. The Government had submitted the saran fibers in
question to Malone for analysis in preparing its response to the 1990
petition, and Judge Dupree cited Malone's testimony in his Order
denying the petition. MacDonald, 778 F. Supp. at 1350-51.
testified in those affidavits, in substance, that the saran fibers
likely came from a doll and not from a wig. In his first affidavit,
dated February 14, 1991, he stated,
these saran fibers... are consistent with the type of fibers normally
used in the production of doll hair and are similar to a known sample
of saran doll hair from the FBI Laboratory reference collection....
These fibers... are not consistent with the type of fibers normally
[**12] used in the manufacture of wigs, and based on my comparisons,
are not like any of the known wig fibers currently in the FBI
Laboratory reference collection."
of Michael P. Malone, Ex. 1 to Aff. of Philip G. Cormier No. 1, at 7.)
Malone testified in a May 21, 1991, supplemental affidavit as follows:
the extent that petitioner contends that the "22-inch blond synthetic"
fibers... are consistent with having originated from a cosmetic blond
wig allegedly owned by Helena Stoeckley, there is no factual or
scientific basis for this conclusion. I base my statement on the
following facts and observations.
One [saran fiber] matched the FBI Laboratory's known saran doll hair
reference exemplar... and did not match any wig exemplar in the
reference collection. FN1. Similar examinations performed on [another
saran fiber] revealed a single light blond striated saran fiber, which
was 22-inches in length, and also did not match any wig exemplar in
the FBI reference collection. ...Therefore, I can state that the only
blond synthetic fibers which are 22 inches or longer and which were
removed from Exhibit K, E-323 [the clear-handled hairbrush], [**13] are
saran, which does not resemble human hair, and not modacrylic, which
does resemble human hair.
The FBI Laboratory's reference collection of fibers has been
maintained for over forty years. Among other items, it contains
numerous samples from wigs, all of which I have personally examined
and none of which revealed a known wig exemplar of saran. Rather all
of the known wig exemplars are composed of polyvinyl chloride (PVC),
modacrylic or human hair.
In addition to performing physical examinations in this case, I have
consulted numerous standard references (see Exhibits 1-6 attached to
this affidavit) which are routinely used in the textile industry and
as source material in the FBI Laboratory, concerning the industrial
applications for fibers, including saran. None of these standard
references reflect the use of saran fibers in cosmetic wigs; however,
they do reflect the use of saran fibers for wigs for dolls and
manikins, in addition to such uses as dust mops and patio screens. [Citation
Further, based upon my own investigation and research in this case, I
can state that saran has the following physical characteristics which
make it [**14] unsuitable for use in cosmetic wigs, in which the
objective is to have the wig hair appear indistinguishable [*1062]
from natural human hair. Saran is very straight, is only manufactured
as a continuous monofilament, does not lay or drape like human hair,
and is also too shiny to resemble human hair. Lastly, saran can not be
manufactured as a "tow" fiber, which is essential to the cosmetic wig
manufacturing process. FN3.
FN3. A "tow" is
a large group of continuous filaments, without any definite twist,
which is cut into definite lengths.
8. Based upon
these factors described above, and in the absence of any evidence to
the contrary, I conclude that the 22 and 24 inch blond saran fibers in
this case are not cosmetic wig fibers.
(Supp. Aff. of
Michael P. Malone, Ex. 2 to Aff. of Philip G. Cormier No. 1, at 2-4.)
attack on the credibility of this testimony began even before the
conclusion of the proceedings on the 1990 petition, and culminates in
the motion now before the court. Following Judge Dupree's denial of
the 1990 petition, and in the course of their appeal therefrom,
MacDonald's defense team uncovered two standard reference texts on
textiles that, contrary [**15] to Malone's assertions, did
state that saran could be manufactured in "tow" form and was used
in the manufacture of wigs. MacDonald's lawyers cited these texts,
Dembeck and Stout, in their appeal to the Fourth Circuit, (Exs. 3-6 to
Aff. of Philip G. Cormier No. 1), but that court did not address the
controversy in its decision.
Fourth Circuit affirmed Judge Dupree's denial of the 1990 petition,
the MacDonald defense team continued its investigation into Malone's
testimony and the characteristics and uses of saran. It now claims
that the Government had acquired, prior to filing its response to the
1990 petition and Malone's affidavits, information which contradicted,
first, Malone's claim that saran was not and could not be manufactured
in a form suitable for use in wigs, and second, the Government's "repeated
assertions" that the saran fibers at issue had likely come from a doll
owned by MacDonald's daughters.
Briefly, this contention is based upon the following: 1) evidence that
the FBI had in its own reference collection the Dembeck and Stout
texts that stated that saran could be manufactured in tow form and was
used in wigs, 2) evidence that Government agents [**16] interviewed
a textile industry executive who would not testify, as they wished,
that saran could not be manufactured in tow form and was not used in
wigs n3, and 3) evidence that Government agents interviewed two doll
experts in California who told them that 22 or 24 inch saran fibers
probably did not come from a doll. MacDonald now claims that this
evidence indicates that Malone and the Government committed a fraud
upon the court when, in 1991, Malone testified in his affidavits that
saran could not be manufactured in tow form and was thus not suitable
for use in wigs. He also cites an article from the Wall Street Journal
and a report of the Department of Justice Inspector General critical
of the work of Malone and the FBI laboratory in other cases.
As explained below, this textile industry executive did not express
the opinion that saran could be manufactured in tow form and was
used in wigs, either. He simply declined to sign an affidavit
Government attorneys drafted for him because he did not consider
himself an expert on saran.
Finally, MacDonald offers affirmative evidence, recently accumulated
by his defense team, that saran was used in wigs prior to 1970. This
new evidence, consisting of the statements of wig and fiber industry
executives only recently located by MacDonald, is not relevant to
MacDonald's claim that Malone committed a fraud upon the court in
1991. Rather, he submits this new evidence in an attempt to
demonstrate his factual innocence.
his fraud claim, MacDonald argues that Judge Dupree and the Fourth
Circuit Court of Appeals relied on Malone's testimony in concluding
that evidence of the saran fibers would not have changed the outcome
of the trial and thus could not serve as a basis for habeas relief,
and that the court therefore should reopen the proceedings on the 1990
petition. MacDonald seeks discovery, including access to various items
of physical evidence examined by Malone and the FBI lab, as well as
other items such as unsourced hairs found in critical locations at the
crime scene, for testing using new DNA technology. [*1063] Ultimately,
he seeks allowance of the 1990 petition and a new trial. For the
reasons discussed below, MacDonald is not entitled to reopen the 1990
MacDonald bears a heavy legal burden on the motion to reopen. Under
principles governing an analogous motion pursuant to Federal Rule of
Civil Procedure 60(b)(3), MacDonald, as the moving party, must
establish fraud by clear and convincing evidence, and he must show
that this fraud prevented him from fully and fairly presenting his
case on the 1990 petition. "The motion will be denied if it is merely
an attempt to relitigate the case or if the court otherwise concludes
that fraud or misrepresentation has not been established." 11 Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 2860 at 314-15 (1995). Further, as the late Justice
Brennan wrote when sitting on the New Jersey Supreme Court,
Testimony that warrants disturbance of a final judgment must be shown
by clear, convincing and satisfactory evidence to have been, not false
merely, but to have been willfully and purposely falsely given, and to
have been material to the issue tried and not merely cumulative but
probably to have controlled the result.
Shammas v. Shammas, 9 N.J. 321, 88 A.2d 204, 208 (N.J. 1952).
court discusses below, MacDonald [**19] has shown neither that
Malone's testimony was material to the outcome of the litigation on
the 1990 petition, nor clear and convincing evidence of any fraud.
A. Malone's testimony was not material to the disposition of the 1990
and most significantly, MacDonald grossly overstates this court's and
the Fourth Circuit's "reliance" on Malone's affidavits in their
decisions on the 1990 petition. (Mem. in Supp. of Mot. to Reopen at
3-7, 17-18, 20-21, 38.) As noted above, Judge Dupree denied the
petition on two alternate and independent grounds, neither of which
is called into question by the motion to reopen. Mention of these
alternate and independent grounds is conspicuously absent in
MacDonald's voluminous filings. Nor does MacDonald acknowledge that
the Fourth Circuit affirmed the denial of the 1990 petition only on
grounds of abuse of the writ, declining to reach the merits of the
petition. Moreover, MacDonald called to the attention of the Fourth
Circuit in his appeal in 1992 Malone's alleged "selective citation" of
textile reference texts which omitted "wigs" as an end use for saran,
as well as the Dembeck and Stout texts which did note that saran
[**20] was used in wigs. (See Exs. 3 & 4 to Aff. of Philip G.
Cormier No. 1.) Apparently finding it unnecessary to address the
controversy, the Fourth Circuit held only that MacDonald's petition
was barred by the doctrine of abuse of the writ, because he could have
raised his claims in his earlier petition for habeas corpus.
MacDonald argues that, had Malone not testified as he did, the court
would have viewed the 1990 petition and the entire evidence in a
different light, perhaps invoking the narrow exception to the abuse of
the writ doctrine for a "fundamental miscarriage of justice." (MacDonald's
Reply at 2-6.) He contends, "In defending against MacDonald's 1990
petition, the government misled this Court, the Court of Appeals, and
the defense by (1) withholding critical exculpatory evidence which was
clearly material to the outcome of the proceedings, and (2) painting a
false picture by claiming that the source of the blond Saran fibers
found at the crime scene could not have been a wig for human use, as
opposed to a doll." (Mem. at 37-38.) MacDonald claims this conduct
violated his rights under Brady and under Alcorta v. Texas, 355
U.S. 28, 2 L. Ed. 2d 9, 78 S. Ct. 103 (1957), [**21] respectively.
Ironically, this contention mirrors MacDonald's argument six years ago
on the 1990 petition itself, that the Government attorneys knowingly
withheld critical evidence (the handwritten lab notes documenting the
saran fibers) which was clearly material to the outcome of the
proceedings (i.e., which would have provided the missing forensic
support for MacDonald's version of the facts), in violation of Brady,
and by painting a false picture of the known forensic evidence, in
violation of Alcorta. But in 1991 Judge Dupree rejected MacDonald's
argument based on Brady and Alcorta that the lab notes and the
existence of the saran [*1064] fibers would have changed the tenor
of the entire body of evidence, persuading the trial judge to admit
Helena Stoeckley's out of court "confessions," and, in domino fashion,
thereby producing in the jurors' minds more than a reasonable doubt as
to his guilt. And this court now rejects MacDonald's argument that the
evidence the Government attorneys allegedly "withheld" in 1991 would
have produced in Judge Dupree's mind the notion that dismissing the
1990 petition for abuse of the writ would result in a fundamental
miscarriage of justice. [**22]
this reason, the Government's conduct in defending the 1990 petition
did not violate MacDonald's Due Process rights under either Brady or
Alcorta. Even if the Government can be said to have "withheld"
evidence in its possession, consisting of textbook references and
witness statements that saran could be manufactured in tow form and
was used in wigs prior to 1970, there is no "reasonable probability
that, had the evidence been disclosed to the defense, the result of
the proceeding [on the 1990 petition] would have been different."
Kyles v. Whitley, 514 U.S. 419, 433, 131 L. Ed. 2d 490, 115 S. Ct.
1555 (1995) (quoting United States v. Bagley, 473 U.S. 667, 682, 87 L.
Ed. 2d 481, 105 S. Ct. 3375 (1985) (opinion of Blackmun, J.) (withheld
evidence must have been material for Constitutional error under Brady
to have occurred)). Nor is there "any reasonable likelihood that the
false testimony could have affected" Judge Dupree's, or the Court of
Appeals', decision. See Bagley, 473 U.S. at 679-80 n.9.
B. MacDonald has shown insufficient evidence of a "fraud upon the
this court finds MacDonald's allegations that Malone committed
[**23] a "fraud upon the court" and that his testimony was "knowingly
false and misleading when made" cavalier and unverified. Again,
MacDonald bases his allegations on three "revelations" resulting from
his Freedom of Information Act ("FOIA") requests of the Department of
Justice following the conclusion of the litigation of the 1990
petition: 1) evidence that the FBI had in its own reference collection
the Dembeck and Stout texts that stated that saran could be
manufactured in tow form and was used in wigs, 2) evidence that Malone
and other Government agents interviewed a textile industry executive
who would not testify, as they wished, to the contrary, and 3)
evidence that Malone and other Government agents interviewed two doll
experts in California who told them that 22 or 24 inch saran fibers
probably did not come from a doll. The court shall address each item
MacDonald's "evidence" that the FBI's reference library included the
Dembeck and Stout texts prior to Malone's execution of his affidavits
consists largely of an identification stamp and a handwritten notation,
both of unknown origin or significance, on the cover page of the FOIA-released
Dembeck excerpt. (Aff. of Philip [**24] G. Cormier No. 1 at 24-30.)
This "evidence," even construed in the light most favorable to
MacDonald, does not expose any statement in Malone's affidavits as
knowingly untrue when made. Malone testified in paragraph 6 of his
supplemental affidavit only that he had consulted "numerous standard
references," not "every standard reference in the library," and there
is no indication Malone or anyone else for the Government consulted
the Dembeck or Stout texts and decided to ignore them. Moreover, as
noted above, MacDonald called to the attention of the Fourth Circuit
Court of Appeals the Dembeck and Stout texts and his belief that
Malone had "selectively cited" standard references to suit the
Government's purposes. That court failed to address the issue--
probably not because of "the power of the FBI Lab's long-standing
reputation for probity and accuracy," (Mem. of Law in Supp. of Mot. to
Reopen at 20), so much as because the texts were not a part of the
record on appeal and because the court rested its decision on the
doctrine of abuse of the writ. See Tr. of Oral Argument, Ex. 3 to Aff.
of Philip G. Cormier No. 1; MacDonald, 966 F.2d 854.
Similarly, MacDonald's complaints that [**25] the Government's 1990
field investigation into the end uses of saran unearthed "exculpatory"
information that contradicted Malone's later testimony are
unconvincing. First, MacDonald claims that on December 4, 1990, Malone,
accompanied by other Government agents, contacted A. Edward Oberhaus,
Jr., an executive at Kaneka America Corporation, [*1065] which
produces modacrylic (non-saran) fibers for use in wigs and doll hair.
Reportedly, Oberhaus told the agents that, "based on his limited
knowledge, Saran fibers were used in the doll industry, but that this
did not mean that Saran was not used in the wig industry as well." (Mem.
in Supp. of Mot. to Reopen at 26.)
Oberhaus refused to sign an expert affidavit drafted for him by the
Government agents to the effect that saran was not used in wigs
because it could not be produced as a tow fiber, and that saran was
primarily used in the manufacture of doll hair, even though an FBI
Form 302, Report of Interview, completed by the interviewing agent
shortly after the 1990 meeting with Oberhaus, reflects that Oberhaus
did so state in his interview. Rather, Oberhaus submitted an affidavit
of his own drafting, which the Government did not use. Oberhaus' [**26] affidavit
stated only that "Wigs and hairpieces during the period 1960 to date
have most often been manufactured with human hair, modacrylic fibers,
other fibers or a combination of any of these filaments." (Aff.
of Philip G. Cormier No. 1 at P 50, emphasis supplied.)
However, neither MacDonald nor Oberhaus has questioned the accuracy of
the FBI Form 302, Report of Interview, completed shortly after the
1990 meeting with Oberhaus. This Report of Interview closely resembles
the draft affidavit which Oberhaus refused to sign because he did not
consider himself an expert on saran. (Compare Aff. of Philip G.
Cormier No. 1, Ex. 12 with Ex. 10 and Aff. of Philip G. Cormier No. 1
at 31-38; see Opp'n of the United States to Mot. to Reopen at 41.)
Whether Oberhaus reflected on his interview with the agents and later
decided he had not been precise in his spoken statements, the court
cannot know. In any event, the court does not view Oberhaus' statement
or his refusal to sign the draft affidavit as exculpatory, with a
concomitant duty incumbent upon the Government attorneys to disclose
on December 5, 1990, Malone and other Government agents interviewed
Judith [**27] Schizas and Mellie Phillips, two employees of Mattel,
Inc. knowledgeable about dolls. MacDonald's defense team claims to
have learned, from the Form 302 Reports of Interviews obtained through
FOIA requests, and from new affidavits obtained directly from Schizas
and Phillips, that these ladies "provided [Malone and the agents] with...
information which directly contradicted the subsequent sworn claims by
Malone, filed by the government, as to the provenance of the 22 inch
and 24 inch Saran fibers found at the crime scene." (Mem. in Supp. of
Mot. to Reopen at 28.) Reportedly, Phillips told the agents that saran
was made in tow form. Both Schizas and Phillips told the agents
that they were not aware of any doll made by Mattel that had saran
hair fibers as long as 24 inches. Schizas told the agents that "while
it was 'possible' [that the 22 inch and 24 inch saran fibers had come
from a doll], it was 'not probable,' because even if fibers of that
length were used in a doll, it would be very difficult to pull out an
entirely intact fiber because of the way that the fibers are rooted...."
(Id. at 30-31.)
MacDonald decries, None of the information which Phillips and Schizas
[**28] state they imparted to Malone and the other government
investigators, including Schizas' and Phillips' FBI 302s [reports of
interviews], was ever disclosed to the defense nor included in any
government filing with this Court. The defense never knew that the
government had even spoken with Schizas and Phillips, let alone that
they had provided the government with exculpatory information which
put the lie to the government's claims that the source of the long
blond Saran fibers found at the crime scene was a doll.
at 31-32.) As to Schizas' and Phillips' being unaware of any Mattel
doll with saran hair as long as 24 inches, and as to Schizas'
explanation of why the fibers did "not probably" come from a doll, the
court knows of no obligation incumbent upon the Government to disclose
this information to the court or to MacDonald. The information was not
"exculpatory" in the true sense, in that it did not tend to show
MacDonald's innocence. Rather, the information tended to disprove a
collateral Government theory regarding certain evidence, which theory
the Government posited as one alternate to MacDonald's theory of
the origin of the saran fibers. This [*1066] controversy [**29]
is one step removed from the question of MacDonald's guilt or
Moreover, in addition to the information Schizas and Phillips gave the
agents which MacDonald seeks to highlight, these ladies also told the
agents that "one might possibly find a doll hair fiber that long [22
or 24 inches] if the fiber were doubled over in the hair rooting
process to produce two 11-12 inch hairs...." (Id. at 30; see Opp'n of
the United States to Mot. to Reopen at 42.) Further, Schizas and
Phillips contradicted each other. Phillips told the agents that her
best recollection was that Mattel never made any doll, other than a
Barbie doll with 3 and a half or 4 inch hair, using saran type
material, and that no other doll manufacturers used saran. In contrast,
Schizas told the agents that, prior to 1970, the longest length saran
used by Mattel was in the "Charmin' Chatty" doll and was 16-17 inches
long, but that Mattel used saran as long as 18 inches in a doll
manufactured in approximately 1973. (Mem. in Supp. of Mot. to Reopen
at 29 n.11.) When these ladies' complete statements are considered in
context, they do not "put the lie to the government's claims that
the source of the long [**30] blond Saran fibers found at the
crime scene was a doll."
only contradiction MacDonald has shown between what any witness
reportedly told Malone and the substance of Malone's affidavits is
Phillips' current recollection that she told the Government agents,
during her December, 1990, interview, that saran was made in tow
form, and Malone's testimony that saran could not be made in tow form.
(See Ex. 14 to Aff. of Philip G. Cormier No. 1 at 2.) But Phillips'
purported statement is not recorded in the FBI Form 302, Report of
Interview (Ex. 1 to Ex. 14 to Aff. of Philip G. Cormier No. 1), and--
not to cast aspersions on Phillips' credibility-- memories inevitably
fade and warp with the passage of time. Further, even if Phillips did
tell the agents that saran could be manufactured in tow form, this
contradicted Oberhaus' statement that it could not, as recorded in the
Form 302 report of his interview. (Opp'n of the United States to Mot.
to Reopen at 42-43.)
MacDonald has submitted extensive legal arguments that the court has
the power to reopen a judgment final for years to rectify a fraud upon
the court. This the court does not doubt. n4 But as the court has
discussed, MacDonald [**31] has not made a sufficiently strong
showing of any fraud to cause this court to doubt the integrity of the
predicate for Judge Dupree's 1991 decision. Unlike the cases cited by
MacDonald in which the wronged party produced irrefutable evidence of
fraud, see Mem. in Supp. of Mot. to Reopen at 40-44, MacDonald here
has produced only possibilities, amplified by hyperbole. In one of the
cases cited by MacDonald, the Supreme Court wrote,
is not simply a case of a judgment obtained with the aid of a witness
who, on the basis of after-discovered evidence, is believed possibly
to have been guilty of perjury. Here... we find a deliberately planned
and carefully executed scheme to defraud not only the Patent Office
but the Circuit Court of Appeals.
Hazel-Atlas Glass v. Hartford Empire Co., 322 U.S. 238, 245-46, 88 L.
Ed. 1250, 64 S. Ct. 997 (1944). Here, however, MacDonald has not
shown a "deliberately planned and carefully executed scheme to defraud;"
he has at the very most raised the specter of "a judgment obtained
with the aid of a witness who, on the basis of after-discovered
evidence, is believed possibly to have been guilty of perjury." n5 Id.
The law [**32] in this regard raises much more substantial
obstacles to, and presumptions against, revisiting the prior judgment.
See, e.g., United States v. Custis, 988 F.2d 1355 (4th Cir.
1993), aff'd, 511 U.S. 485, 128 L. Ed. 2d 517, 114 S. Ct. 1732 (1984)
(setting forth five-prong standard for granting new trial where newly
discovered evidence tends to show witness may have committed perjury
at criminal trial).
court need not address the Government's jurisdictional arguments,
Opp'n of the United States to Mot. to Reopen at 33-38, due to the
failure of the motion to reopen on its merits.
the court has shown, even that characterization applied to these facts
would be exaggerated.
Finally, MacDonald outlines evidence of what he calls a "pattern of
deception" by Malone in other cases, evidence which includes excerpts
from the Final Report of Department of Justice Inspector General
Michael [*1067] R. Bromwich, The FBI Laboratory: An Investigation
into Laboratory Practices and Alleged Misconduct in Explosives-Related [**33]
and Other Cases, dated April 15, 1997; and an April 16, 1997,
article from the Wall Street Journal, attached to Aff. of Philip G.
Cormier No. 2 as Ex. 3. and Ex. 1, respectively. This thin and
collateral "evidence," however, does not persuade the court any more
than the evidence discussed above that Malone has committed a "fraud
upon the court." (See Opp'n of the United States to Mot. to Reopen at
basis of Malone's "suspect" conduct, MacDonald also seeks access to
all items of physical evidence on which Malone conducted laboratory
examinations, and other items of physical evidence not examined by
Malone, "but which contain unsourced hairs, blood debris and fibers,
found in critical locations such as underneath the fingernails of the
victims, which may very well contribute toward a demonstration of Dr.
MacDonald's factual innocence." (Mem. in Supp. of Mot. to Reopen at
69.) MacDonald seeks access to these exhibits to conduct independent
laboratory analyses, including new DNA tests not previously available.
However, since the court will not reopen the proceedings on the 1990
petition and, as explained below, has no authority to consider the
question of MacDonald's [**34] factual innocence based on all of
his exculpatory evidence plus his new evidence regarding the possible
origin of the saran fibers, there is no basis on which to allow
MacDonald discovery. Moreover, the significance of the items other
than the saran fibers has been fully litigated in the past, and
nothing now presented impugns the validity of the Government's
conclusions concerning them. (See Opp'n of the United States to Mot.
to Reopen at 51-52.)
MacDonald's new evidence that saran was used in wigs prior to 1970 is
irrelevant to the motion to reopen and cannot now be considered by the
court as evidence of MacDonald's innocence.
Finally, MacDonald's attorneys have, since the conclusion of the prior
litigation of the 1990 petition, located several individuals in the
fiber and wig manufacturing industries who aver that saran fibers were
manufactured in tow form, and were used in wigs, prior to February,
1970. MacDonald recounts this newly discovered evidence, not in
support of his claims that Malone and the Government committed a fraud
upon the court, but to show that some of Malone's claims in the 1991
affidavits were objectively false. But this contention, even
[**35] if true, is inappropriate to the court's limited area of
concern on the motion to reopen-- which is simply whether to reopen
proceedings on the 1990 petition due to the possibility of fraud. As
the Government cogently explains, the court is barred by the
Antiterrorism and Effective Death Penalty Act of 1996 n6 from
considering whether this new evidence, added to the weight of
MacDonald's other exculpatory evidence previously amassed in a trial
and two habeas proceedings, finally tips the balance in his favor so
as to warrant a new trial. (See Mem. in Supp. of Mot. to Reopen at
52-65 & MacDonald's Reply at 19-38, recounting evidence of MacDonald's
innocence collected over the years and arguing that this evidence, in
conjunction with what is now known about the saran fibers,
demonstrates that he is entitled to a new trial; [*1068] Opp'n of
the United States to Mot. to Reopen at 33-35.)
Antiterrorism and Effective Death Penalty Act of 1996 amended 28
U.S.C. § 2255 to add the following:
second or successive motion must be certified as provided in section
2244 by a panel of the appropriate court of appeals to contain--
newly discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found the
movant guilty of the offense....
Stat. 1220, Title I, § 105. In turn, as amended by the 1996 Act, 28
U.S.C. § 2244 provides in pertinent part as follows:
Before a second or successive application permitted by this section is
filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district
court to consider the application.
motion in the court of appeals for an order authorizing the district
court to consider a second or successive application shall be
determined by a three judge panel of the court of appeals.
Stat. 1221, § 106.
that respect, the motion to reopen is, as the Government argues, akin
to a third habeas petition. MacDonald's apparent inability to
comprehend this is demonstrated by a footnote explaining the
difficulty his defense team has met in investigating, since 1991,
whether the two saran fibers could have come from a wig:
Conducting such an investigation has been extremely difficult, due to
limited resources, the passage of time and the difficulty in locating
witnesses in an industry which was comprised of many relatively
unorganized, marginal businesses, and the fact that much wig
manufacturing during the relevant time period took place outside the
United States. This being said, at this late date, it is the
government which should bear the burden of proving definitively that
the long blond Saran hair-like fibers found at the crime scene did not
come from a wig, as it is the government which withheld from MacDonald
during the pre-trial stages of this case, the exculpatory handwritten
laboratory notes which documented Janice Glisson's initial discovery
of the long blond Saran fibers.
in Supp. of Mot. to Reopen at 32-33 n.14.) This court has never
suggested that the Government [**37] had "definitive proof" as to
the origin of the saran fibers, and the court in 1991 gave two other
good reasons why MacDonald's claim that the Government had "withheld"
from him during the pre-trial stages of this case the handwritten lab
notes did not entitle him to a new trial. MacDonald histrionically
mischaracterizes both the nature and magnitude of the dispute now
before the court.
Further, no matter how weak Malone's testimony now, six years later,
appears to be, it was the only evidence before the court in 1991.
Judge Dupree, in his Order denying the 1990 petition, so noted after
reciting the substance of Malone's affidavits. "MacDonald has
presented no evidence that blond saran fibers have ever been used in
the manufacture of human wigs." MacDonald, 778 F. Supp. at 1350.
And later, "Without any evidence that saran is used in the production
of human wig hair, the presence of blond saran fibers in a hairbrush
in the MacDonald home would have done little to corroborate
MacDonald's account of an intruder with blond hair or a blond wig." Id.
at 1354. Following the amendment of 28 U.S.C. § 2255 by the
Antiterrorism and Effective Death Penalty Act, the court cannot
consider [**38] MacDonald's presentation of such evidence now,
but must transfer this matter to the Court of Appeals for the Fourth
Circuit for consideration of certification of MacDonald's argument as
a successive habeas petition pursuant to 28 U.S.C. § § 2244 and
2255. If that court remands the matter for consideration of the merits,
only then could this court address the weight of the evidence.
D. MacDonald's Motion to File Supplemental Affidavit
motion for leave to file supplemental affidavit of Philip G. Cormier,
MacDonald calls to the attention of the court twelve pages of
documents of unknown origin sent anonymously to MacDonald in prison.
According to MacDonald, the documents "appear [to be] briefing
documents used by the Department of Justice Inspector General's Office
or the FBI for the purpose of answering inquiries concerning the April
15, 1997 report issued by Inspector General Michael Bromwich on his
FBI Laboratory Investigation." (Mot. for Leave to File Supp. Aff. at
2.) MacDonald specifically directs the court to a paragraph in the
documents that reads
aware of one Lab employee (Michael Malone) who may have overstated his
conclusions in several [**39] cases including the appeal of former
Green Beret, JEFFREY MACDONALD. The Task Force is reviewing each of
Malone's past cases, including the MacDonald case, and if his
scientific analysis/testimony is found flawed, appropriate disclosures
will be made.
MacDonald questions how the Government's omission of this "fact" (Id.)
from its response squares with its position that Malone has committed
response, the Government correctly points out the shortcomings of the
documents as "evidence," and submits further affidavits of the
Inspector General himself and the Deputy Assistant Attorney General
supervising [*1069] the Criminal Division Task Force on the FBI
Laboratory to the effect that "neither is presently investigating the
professional activities of Malone in connection with the Defendant's
preceding habeas petition." (Opp'n of the United States to Mot. to
File Supp. Aff. at 2-3.) Nevertheless, as the court has carefully read
and considered every page filed herein, MacDonald's motion for leave
to file supplemental affidavit is ALLOWED, and the Clerk is DIRECTED
to file that document. The Supplemental Affidavit and the twelve pages
attached do not impact the court's [**40] disposition of the
motion to reopen, for the reasons stated above.
conclusion, MacDonald has not convinced the court that Michael
Malone's testimony was material to the disposition of MacDonald's 1990
habeas petition, or that Malone or any other agent of the Government
committed any wrongdoing in defending against the 1990 petition. Thus,
MacDonald's Motion to Reopen 28 U.S.C. § 2255 Proceedings and for
Discovery is DENIED. His claim that newly gathered evidence that saran
fibers were in fact used in the manufacture of human wigs prior to
1970, added to the weight of previously amassed exculpatory evidence,
demonstrates his factual innocence and that he is entitled to a new
trial, is TRANSFERRED to the United States Court of Appeals for the
Fourth Circuit. Thus, the Government's Motion to Dismiss 28 U.S.C.
§ 2255 Petition for Lack of Jurisdiction and Suggestion, in the
Alternative, to Transfer to the Court of Appeals, is DENIED IN PART
and ALLOWED IN PART. Finally, MacDonald's Motion for Leave to File
Supplemental Affidavit is ALLOWED.
29th day of August, 1997.
United States District Judge