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Feature
Article
Winner,
1999 James B. Merritt Award
North
Carolina Criminal Justice Association
DNA
Testing May Cast Reasonable Doubt in Fatal Vision Triple Murder
Defense
Alleges Botched Investigation, Suppressed Evidence in 1979 Trial
Former
'Dream Team' lawyer Barry Scheck has brought the near 30-year-old
MacDonald triple murder case back into the limelight. On Tuesday
March 23, 1999, I looked on as Scheck and the Boston law firm of
Silverglate and Good had their day in court at a hearing held at
the Wilmington, NC Federal Courtroom of U.S. District Judge James
Fox. The hour-long hearing determined when and where the DNA of
decades-old hair, blood, and fiber evidence would be tested.
Ft.
Bragg Triple Murder
Dr. Jeffrey
MacDonald, a Green Beret group surgeon and Captain in the U.S. Army,
was found guilty in 1979 of the February 17, 1970 stabbing and bludgeoning
deaths of his pregnant wife Colette, twenty-six, and their two children,
Kimberly, five, and Kristen, two. The case was made famous by the
1983 Joe McGinniss true crime novel Fatal Vision, which chronicled
the crime and resulting trial.
MacDonald
maintains his innocence, citing several facts suppressed at the
trial to support his claims. A 1995 book, Fatal Justice, written
by Jerry Allen Potter and Fred Bost, also tells the story of the
MacDonald murders. In Fatal Justice, MacDonald said he awoke on
the living room couch on the night of the murders to the screams
of his wife and oldest daughter, and was attacked by three men,
suffering multiple stab wounds and contusions. In the background
he said he saw a blond woman in a floppy hat, holding a flickering
light and chanting "Acid is groovy" and "Kill the
pigs."(16)
Botched
Crime Scene
The Locard
Exchange Principle states that when a criminal (or anyone else for
that matter) comes into contact with an object or person, a cross
transfer of evidence occurs. It is this principle that guides evidence
examiners to search crime scenes for hair, fiber, and blood evidence,
clues that the person who committed the crime has left at the crime
scene. In order to accurately gather evidence, the crime scene must
not be disturbed, and evidence must be carefully removed and classified
before being transported to the lab for examination.
Fatal
Justice extensively chronicled the actions taken by the Army's Criminal
Investigative Division (CID) investigators. Statements from several
people involved with the case proved that the MacDonald crime scene
was poorly secured. Ordinarily, the number of personnel admitted
into the crime scene is severely limited, to preserve the integrity
of the evidence. Fatal Justice reported that CID agent Robert Shaw
said in a 1970 official statement that "Prior to the arrival
of Mister Ivory, who was the first investigator on the scene, there
were approximately eighteen military policemen who went through
the quarters." (51) In addition, the backyard, where the murder
weapons were found, was not roped off. Fatal Justice stated that
several people were allowed to walk through the unprocessed backyard,
including newspaper reporters, and neighbors. Even more incredibly,
garbage collectors were allowed to empty the MacDonald trash cans
before they were inspected for evidence. (49)
In addition,
the house itself was apparently not off limits to outsiders either.
Fatal Justice reports that military personnel reported seeing up
to four strangers in the quarters that morning. Military Policeman
(MP) Kenneth Mica said that he saw a long-haired man wearing an
army field jacket and jeans move a flowerpot and then sit on the
couch, the same couch where MacDonald said he was attacked, effectively
ruining the integrity of that part of the crime scene.(52) Master
Sergeant Medlin, chief technician in charge of laboratory analysts
sent from Fort Gordon to help investigate the murders, stated that
"local CID investigators conducted at least one VIP tour through
the crime scene for some of the ranking officers on post" (51)
Perhaps the most obvious example of how poorly the crime scene was
managed was the situation with MacDonald's wallet. Fatal Justice
reported that MP Mica first saw MacDonald's wallet on the living
room floor, then later on the top of a desk. At 5:30 a.m. an MP
noticed that the wallet was gone. In an Army reinvestigation ten
months later, ambulance attendant Paulsen admitted to taking the
wallet. (50) The poorly managed crime scene severely undermined
the MacDonald murders investigation.
The quality
of evidence in the MacDonald case was equally sabotaged by how and
when it was gathered. From the very beginning the FBI and the CID
entered into a turf war. The better-equipped FBI was banned from
the crime scene by the CID, on the basis that no civilians were
involved. (45) Fatal Justice reported that CID lab technician Hilyard
Medlin testified at the Army's Article 32 hearing that he destroyed
nine good fingerprints and three good palm prints at the scene of
the crime while attempting to process fingerprints without the proper
equipment. (46) Fatal Justice also stated that more than three dozen
finger and palm prints taken from the quarters were checked against
the family's and investigator's prints and never positively identified,
including a print from a drinking glass found on an end table near
the living room sofa.(58) MacDonald states in Fatal Justice that
he didn't remember seeing that glass before the murders.(58) Fatal
Justice states that Dr. William Neal, the physician who examined
Colette's body for signs of life, insists that he moved her body
in his examination.(53) Neal examined the victims before the CID
investigators drew their outlines and recorded their original positions
in the crime scene.(55) Dr. Neal disturbed the integrity of all
evidence found by Collete's, Kimberly's and Kristen's bodies in
his examination. In addition to the Dr. Neal's actions, Fatal Justice
reported that CID agents "used the toilet, made coffee in the
kitchen, washed dishes in the sink, sat on the furniture, read the
magazines, and played the stereo - all before evidence collection
was completed." (47) One item in particular was the 'Esquire'
magazine found in MacDonald's quarters. Fatal Justice reported that
several CID investigators handled the magazine before lab tech Ralph
Turbyfill discovered a bloody smear on the cover. The magazine was
later entered into evidence and the bloody smear was used in the
trial to help prove MacDonald's guilt. (47) The actions of CID investigators,
Dr. Neal, and various unidentified people in the crime scene combined
to contaminate the quality of evidence gathered in the MacDonald
case.
Suppressed
Evidence
The March
23rd hearing of the McDonald case centered on where and when to
test several pieces of evidence that the defense team states casts
a reasonable doubt on MacDonald's guilt in the murders of his wife
and children. During the original investigation, several pieces
of hair and fiber evidence in the MacDonald case were found on the
bodies of the victims. Fatal Justice alleges that the prosecution
withheld lab reports detailing these pieces of evidence from the
defense at the time of the trial.(131) Potter and Bost obtained
the Criminal Investigative Division Lab notes on the case through
the Freedom of Information Act, and detailed the evidence withheld
from the defense in Fatal Justice.(19) The evidence descriptions
that follow are taken from Fatal Justice excerpts of the CID Lab
notes.
A small
brown hair in Colette's left hand.(59) This hair was tested and
matched neither MacDonald nor anyone else present at the crime scene.
(100)
Both Kimberly and Kristen had brown hairs found under their fingernails.
CID lab reports indicate that these hairs did not match one another,
nor did they match MacDonald. (59) Both hair samples remained unreported
evidence.
In addition to the hair and fiber evidence on the victims, a twenty-two
inch synthetic blond wig hair was found on a brush on the telephone
seat near where MacDonald said he saw the blond female. (60)
The Boston
Globe ran an article about the 1990 effort led by Harvey Silvergate
to set aside MacDonald's conviction based on evidence suppressed
at the first trial. Evidence outlined in the article includes black
wool fibers on Colette's mouth, shoulder, and on one of the murder
weapons, all discovered by FBI forensic expert James Frier. The
black wool fibers, in addition to several other unidentified green,
brown, and white wool fibers, were not matched to any clothes present
in the MacDonald home, and were not disclosed by the prosecutor
at the trial, according to the court filing. (1)
Fatal
Justice states that during the MacDonald trial the prosecution released
no evidence or lab reports to the defense. Because the prosecutor,
Brian Murtagh, insisted that the lab reports held nothing to support
MacDonald's claims, the judge refused to make Murtagh release the
lab documents to the defense.(131) The Freedom of Information act
released these reports years after the trial ended, providing MacDonald's
defense team with a list of potential evidence which was not accurately
released to the jury at the MacDonald trial, and therefore could
form the basis for an appeal.
Fatal
Justice also details evidence from witnesses which was either disparaged
or suppressed at the trial. MP Kenneth Mica, the officer responding
to the scene that night, stated that he saw a woman matching MacDonald's
description of the female in his house standing on the street while
on his way to the scene, but was ordered not to talk about his sighting.
(15) Fatal Justice alleges that the woman in the floppy hat was
Helena Stoekley, a Colonel's daughter who was also a drug informant
for local and Army police. Stoekley admitted to wearing a blonde
wig and a floppy hat the night of the murders, and told several
people, including law enforcement officers, that she was present
at the murders. (120)
Winding
it's Way Through the Courts
Jeffery
MacDonald was convicted for the murders of his wife and two children
in August 1979, all the while maintaining his innocence. Numerous
appeals were filed on MacDonald's behalf during the next ten years.
The Boston Law Firm of Silvergate and Good took the MacDonald case
pro bono, and filed a motion for a new trial in 1990, twenty years
after the crime had been committed. After seven more years of legal
wrangling, a three-judge panel at the Fourth Circuit Court of Appeals
in Richmond, Va. overturned a lower decision and finally allowed
DNA testing of the evidence.
Now,
almost three decades after the murder of Colette, Kimberly, and
Kristen MacDonald, Judge Fox has given the prosecutors and the defense
until April 6th,1999 to decide on a possible independent laboratory.
The laboratory will take the evidence provided by the FBI and use
both Nuclear and Mitochondrial DNA testing to determine if the hair
and fiber samples contain Jeffrey MacDonald's DNA.
With
DNA, the Smallest Piece of Evidence Can Acquit
At the
March 23rd hearing Judge Fox granted Scheck and the MacDonald defense
team their wish. The FBI will open and arrange on slides at least
seventeen hair, fiber, and blood evidence samples and send them
to an independent lab capable of performing Nuclear, Mitochondrial,
and Short Tandem Repeats DNA testing.
DNA is
short for Deoxyribonucleic Acid. DNA is a genetic fingerprint, consisting
of twenty-three pairs of chromosomes that determine all human characteristics,
from eye color to height and skin tone. DNA is an individual's genetic
fingerprint; the only people who share identical DNA are identical
twins. DNA is fully present in every cell in the body except the
sex cells, and can be extracted and tested from bodily fluids, hair,
and bone.
Nuclear
DNA testing extracts and uses the nucleus of the cell to classify
the DNA and match it to a suspect specimen. Nuclear DNA is a very
reliable test, since the only people sharing Nuclear DNA are identical
twins, but it can generally only be performed on fresh samples of
blood, saliva, and hair with the root attached. The problem with
Nuclear testing on evidence in the MacDonald case is that the evidence
samples are almost three decades old, and some hair evidence is
without a root, the part of a hair that contains the nucleus.
A better
test for some of the MacDonald evidence involves Mitochondrial DNA,
which is extracted from the part of the cell surrounding and absent
the nucleus. A famous case involving Mitochondrial DNA involved
the remains of the Unknown Vietnam Soldier. Though some argued that
remains should not be disturbed to preserve the truthfulness of
the monument, in 1998 the soldier's skeletal remains were removed
and tested. They were found to be the remains of Air Force 1st LT
Michael Blassie. According to the Armed Forces Institute of Pathology
(AFIP) Online Newsletter, the Mitochondrial DNA test was performed
with reference samples from Blassie's mother and one of his sisters.(1)
The FBI laboratory also analyzes Mitochondrial DNA, and states in
it's policy for submitting DNA evidence that "Mitochondrial
DNA analysis may be applied in forensic cases where the amount of
extracted DNA is very small or degraded, as in tissues such as telogen
hairs, old bone, and teeth." (Saferstein, 614)
Terry
Melton of Mitotyping Technologies in State College, PA specializes
in Mitochondrial DNA (mtDNA) testing, and provided information on
the process on the Mitotyping Technologies website. Melton states
that, "the likelihood of recovering mtDNA in small or degraded
biological samples is greater than for nuclear DNA because mtDNA
molecules are present in hundreds to thousands of copies per cell
compared to the nuclear complement of two copies per cell."(1)
The degraded blood and hair samples in the MacDonald case will be
more easily typed with mtDNA testing than conventional Nuclear DNA
testing. Though it will take up more of the evidence to test, Melton
states that "a single mtDNA analysis could be performed on
a 0.5-2 cm hair fragment." (1) This type of test could be useful
for the small hairs found on Colette, Kimberly and Kristen's hands.
Mitochondrial
DNA is inherited maternally, so deceased individuals, like both
the victims and the defense's likely suspects, can be typed using
samples taken from maternal relatives. The only drawback to this
test would be a possible inconclusive or false positive result for
MacDonald if he shared a maternal relative with one of the intruders.
The third
type of DNA testing which could be used in the MacDonald case is
Short Tandem Repeats (STR) analysis. According to Criminology, An
Introduction to Forensic Science, by Richard Saferstein, "STRs
are locations on the chromosome that contain short sequence elements
that repeat themselves within the DNA molecule." (420) STRs
are found in large numbers in the human genome, and Saferstein notes
that since both the repeating sequence and the entire strand is
relatively short in length, STRs are "much less susceptible
to degradation and may often be recovered from bodies and stains
that have been subject to extreme decomposition."(420) STR
testing would be especially useful due to the age and amount of
evidence available to the laboratory.
A
Call For Reform
The MacDonald
case is not the first DNA case Scheck has argued. Although Scheck
may be best known for his work on the O.J. Simpson case, he is also
co-founder of the Innocence Project, a Yeshiva University organization
that works to use DNA evidence to exonerate wrongly convicted felons.
In a Frontline Interview, Scheck states that "there's more
and more of these cases because DNA evidence can clarify what was
previously ambiguous or frankly misleading to juries in terms of
biological testing."(3) According to Scheck, thirty-five guilty
verdicts have been overturned because of new DNA evidence. (2)
If the
amount of evidence in question is large enough be accurately tested
and the results prompt Judge Fox to call for a retrial, the MacDonald
case may be the biggest chance to showcase cutting edge DNA classification
technology since the O.J. Simpson trial. If the evidence exonerates
MacDonald, it will be a powerful wake up call to all agencies, including
the FBI, to strengthen training and standards so that innocent people
will not be convicted in the future due to faulty evidence classification
and examination.
Works
Cited
"AAFDIL
Analysts Match DNA to Clinch Blassie Identification" AFIP Online
Newsletter Vol 156 No. 3 (1998) Online. Internet. 24 Mar. 1999.
Available http://www.afip.org/blassie.htm
Gelbspan,
Ross. "New Allegations in MacDonald Case Lawyers: Prosecutor
Hid Evidence." The Boston Globe 20 Oct. 1990: A1
Melton,
Terry. "About Mitochondrial DNA." Mitotyping Technologies
(1998): 1 p. Online. Internet. 24 Mar. 1999. Available http://mitotyping.com/aboutmt.html
Potter,
Jerry A., Fred Bost. Fatal Justice. New York: W.W. Norton and Company,
1995.
Saferstein,
Richard. Criminalistics. 6th ed. New Jersey: Prentice Hall, 1998.
"What
Jennifer Saw: Barry Scheck." Frontline/WGBH (1998): 8 p. Online.
Internet. 24 Mar. 1999. Available http://www.pbs.org/wgbh/pages/frontline/shows/dna/interviews/scheck.html
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