By Ruth Shalit
16, The Wall Street Journal published the results of an investigation
into the practices of the increasingly beleaguered FBI crime laboratory.
The article, written by reporter Laurie P. Cohen, uncovered two
apparently fraudulent affidavits submitted by FBI hair-and-fibers
examiner Michael P. Malone. An examination of Malone's actions,
wrote Cohen, "raises serious concerns about the FBI crime lab,
which is already under scrutiny for allegedly biasing its findings
to favor prosecutors over criminal defendants."
of this practice, wrote Cohen, may have been Dr. Jeffrey R. MacDonald,
the Princeton-educated Army surgeon whose sensational 1979 murder
conviction was the basis for Joe McGinniss's best-selling book Fatal
Vision, and whose lawyers have been complaining for years that the
FBI manipulated forensic evidence to make their client look guilty.
As Cohen reported, a strand of synthetic blond fiber--now revealed,
in contradiction to Malone's sworn testimony, to be composed of
the type of fiber used to make human wigs-- has become the basis
of a habeas petition to gain a new trial for MacDonald, who is currently
in jail for the murder of his wife and their two small children,
a crime he has maintained for twenty-seven years he did not commit.
lawyers go further. They say that prosecutorial bias, far from being
confined to a single rogue agent, permeated the entire investigation.
"We've known for a long time that the forensic testimony in
this case was utter nonsense," says Harvey Silverglate, the
Boston criminal defense lawyer who has been handling MacDonald's
appeal, pro bono, since 1989. "For years, people have been
telling us, `You don't accuse the FBI lab of perjury. This is the
foremost forensic lab in the world!'" When Silverglate and
his associates read in the paper that the FBI lab was under fire
for falsifying evidence, "we were electrified," he says.
"What this case has always needed is a scandal swirling around
the FBI lab. Maybe now someone will believe us." Malone declined
of the MacDonald case are as well-known as they are lurid. In the
early morning hours of February 17, 1970, the military police at
Fort Bragg, North Carolina, logged a phone call from MacDonald,
a Green Beret captain and an Army group surgeon who lived with his
family on the Fayetteville base. "We've been stabbed,"
gasped MacDonald. "People are dying.... I may be dying."
When military police arrived at the scene, they found MacDonald's
pregnant wife, Colette, lying on the floor of the master bedroom
in a pool of her own blood. The couple's young daughters, Kimberly
and Kristen, had been hacked to death in their beds. All three bore
the marks of multiple weapons: an ice pick, a Geneva Forge knife
and a wooden club later found in the backyard. MacDonald was found
alive but unconscious. He was revived by medics, given mouth-to-mouth
resuscitation and taken to a nearby hospital. When he regained consciousness,
he told a bizarre tale. His family, he said, had been butchered
by a pack of drug-crazed hippies. MacDonald remembered a black man
in an Army field jacket with sergeant's stripes, two white men and
a woman in a blond wig and floppy hat. According to MacDonald, the
group had cut a macabre swath through the small apartment, carrying
a candle and chanting "acid is groovy" as they stabbed
and clubbed and slashed his wife and daughters.
account of the hours leading up to the murders are as follows: after
sharing an orange liqueur, he and Colette got into bed and watched
Johnny Carson. But soon 2-year-old Kristen, who couldn't sleep,
crawled into their bed. Unfortunately, Kristen wet MacDonald's side
of the bed. MacDonald cleaned her up, tucked her in and crashed
on the living-room sofa--only to awaken hours later to the frantic
screams of his dying family. Struggling to his feet, he was set
upon by three men, who beat and slashed him until he passed out.
When he opened his eyes, the intruders were gone and the apartment
was silent. He staggered to the rooms of his wife and children,
only to find them broken and bleeding. After pulling a knife out
of his wife's chest, he attempted mouth-to-mouth resuscitation.
He also attempted to revive his daughters. When this failed, he
managed to pick up a phone and summon the Army medics. At that point,
MacDonald--who, hours later, would receive treatment for multiple
head contusions, a collapsed lung, as many as seventeen ice-pick
wounds and at least four knife wounds, including one so deep it
exposed his stomach muscle--lost consciousness again. When Army
medics arrived at the scene, they found him slumped over his dead
Ivory, the 26-year-old lead Army investigator, did not believe MacDonald's
story. For one thing, the crime scene looked suspiciously tidy.
If the MacDonald living room had indeed been the site of a bloody
struggle with marauding intruders, as MacDonald claimed, why was
a flowerpot standing upright? Even more graphically damning, it
seemed, was the forensic evidence-- gathered at the crime scene
by the Army's Criminal Investigation Division and turned over to
the FBI when, nine years after the murder, the agency decided to
conduct its own probe. As Justice Department prosecutors would argue
at trial, this circumstantial evidence overwhelmingly fingered MacDonald.
On the bedspread, investigators found a bloody strand of Colette's
head hair entwined with one of MacDonald's pajama fibers, evidence
that a battle had taken place between MacDonald and his wife. The
imprint of MacDonald's bare, bloody feet was found in Kimberly's
doorway--proof, according to the prosecutor's scenario, that MacDonald
had paused in his daughter's room while carrying Colette's lifeless
body into the master bedroom. Most damningly, investigators claimed,
two of MacDonald's pajama fibers were found on the murder club.
Lead prosecutor James Blackburn called this ominous discovery the
"most important" evidence in the case.
problematic for MacDonald was what was not found in the apartment.
MacDonald said he'd struggled with the intruders in the west entrance
to the hallway before falling to the ground, wounded and unconscious.
But investigators claimed to have found none of MacDonald's pajama
fibers or blood in that area. And there was a bigger problem. According
to investigators, there was not a shred of evidence to support MacDonald's
far-fetched tale of chanting, candle-bearing crazies. "It doesn't
make any difference if there were 5,000 hippies outside Castle Drive
at four o'clock in the morning screaming `Acid is groovy; kill the
pigs,'" explained Blackburn in his summation. "Because
they have not shown that hippies were inside the house."
after the verdict, several jurors revealed their discomfort with
the government's case. The prosecution, they told reporters, could
offer no explanation for how MacDonald, a doting father who had
just delighted his family with surprise gifts of a bunny rabbit
and a Shetland pony, could experience such a profound psychotic
snap. In the end, they said, it was the lack of evidence of intruders--together
with the lack of blood on the floor where MacDonald said he'd bled--that
led them to accept the prosecution's claim that MacDonald was lying.
Try as they might, MacDonald's lawyers proved unable to explain
the discrepancies between their client's story and the forensic
evidence. After a mere six hours of deliberation, the jury convicted
MacDonald of triple murder. A judge sentenced him to three consecutive
life terms at the Sheridan Federal Correctional Institution, in
western Oregon, where he remains to this day.
is a strong argument to be made that the government's case against
MacDonald was, at least to some degree, rigged, an argument that
indeed has been made by investigative journalists Jerry Allen Potter
and Fred Bost in their book Fatal Justice, just out in paperback,
which presents an exhaustive argument for MacDonald's innocence.
As Potter and Bost note, during the four years leading up to the
trial, MacDonald's lawyers repeatedly asked the prosecution for
a look at the original source documents--investigative reports,
witness statements, handwritten lab notes and other unfiltered primary
material--that would substantiate the government's damning interpretation
of the evidence collected at the crime scene. Brian Murtagh, the
Justice Department attorney in charge of the case, refused to turn
anything over; and Judge Franklin T. Dupree refused to compel him
to do so. Dupree soothed the apoplectic lawyers with a promise that,
if the sought-after lab notes were later discovered to contain exculpatory
information, the prosecution's case would "get reversal."
documents weren't released until thirteen years after the murder,
when MacDonald's attorneys lobbied senators and congressmen to compel
disclosure under the Freedom of Information Act (foia). MacDonald's
lawyers say this belated disclosure, which began in 1983 and continues
even today, confirmed their suspicions. The handwritten notes, tens
of thousands of pages of them, did contain information that was
kept off the FBI's typed summations, information that contradicted
the prosecution's central claims at trial. We now know from the
notes that, when the government claimed that MacDonald's footprints
in Kimberly's doorway inculpated him in the murders, it ignored
eyewitness accounts that MacDonald, as he was being carried out
of the apartment on a gurney, stumbled off the gurney with bare,
bloody feet at precisely the point where the footprints were found.
We also know that, when the jurors were told of a pajama fiber entwined
with a hair, they never learned the truth--that Army investigators
had examined debris from the bedspread three times in 1970 and found
none of Colette's bloodstained hair; nothing entwined. The notes
reveal no explanation for such a dramatic change in forensic evidence--evidence
that was hand-carried from the Army's evidence depository to the
FBI lab by the lead Justice Department prosecutor himself.
about the troubling absence of blood and pajama fibers on the hallway
floor, where MacDonald insisted he'd battled multiple intruders?
This claim, too, is countermanded by source documents that the government
refused to allow the jurors to see. The notes reveal that, when
Robert Shaw of the Army's Criminal Investigation Division first
got to the apartment, he reported a "pile" of blue fibers
and a spot of blood (diagnosed as probably type B, MacDonald's type)
at precisely the spot in question. This evidence, too, was kept
from MacDonald's lawyers and from a jury who cited its absence as
their main reason for doubting MacDonald's account.
the fibers on the murder club--the "most important" evidence--the
original, handwritten lab notes reveal that, when lab technicians
examined the club debris, they found not pajama fibers but two strands
of black wool, wool that didn't match any clothing in the apartment.
Somehow, these foreign "wool fibers" became "pajama
fibers" in the government's final report.
their decade in the MacDonald foia archives, Potter and Bost found
evidence to dispute every major claim by the government of circumstantial
evidence against MacDonald. As they write: "We found each one
grossly short of proof, and many of them intentionally distorted.
We would be hard-pressed to mention a single important item that
had not been somehow manipulated to throw suspicion away from intruders
who left substantial evidence in the home, in the victims' hands,
and on and around the bodies."
of evidence kept out of MacDonald's trial that showed up in the
foia documents was a confession of murder--actually multiple, polygraph-verified
confessions--by Helena Stoeckley, a Fayetteville hippie, drug addict
and self- styled "witch" who admitted to owning a blond
wig, floppy hat and ice pick; who was spotted by five eyewitnesses
in the vicinity of the MacDonald home, in several instances in the
company of two white males and a black male in an Army field jacket,
on the night the murders occurred; and who never came up with an
alibi for where she was during the early morning hours of February
17, 1970. In her confessions, Stoeckley explained that "MacDonald
was just one of several people giving the drug users a hard time.
And I don't know really who started the idea." Stoeckley explained
that the group, "peaking out on mescaline," allowed matters
to get out of hand. "From what I understood, there was simply
going to be a little pushing around, you know, and trying to get
a point across, and that was it." Before she knew it, "there
was blood and I realized that things were out of control."
Despite his earlier promise to reverse MacDonald's conviction in
the event of documented prosecutorial suppression, Judge Dupree
ruled the confessions irrelevant, due to a lack of forensic evidence
tying Stoeckley to the crime scene. Such evidence later surfaced,
in the form of blond wig hairs suppressed by the FBI and finally
disclosed through foia in 1990. But this, too, was deemed insignificant.
FBI expert Malone swore that the synthetic fibers had to be doll
hair. "Unless the defendant wants to maintain that Ken and
Barbie did it," said government prosecutor John F. DuPue in
1992, "I don't see how this hair helps them very much today."
A three-judge panel agreed with DuPue: "Without any evidence
that saran is used in the production of human wig hair the presence
of blond saran fibers in the MacDonald home would have done little
to corroborate MacDonald's account of an intruder with a blond wig."
16 Journal story, which established that saran fiber was indeed
used to make wigs--and that FBI hair expert Michael P. Malone knew
this at the time he testified to the contrary--has vaulted the MacDonald
case back into the media spotlight. From his makeshift studio at
the Sheridan Federal Correctional Institution, a haggard-looking
MacDonald has been storming the talk-show circuit, appearing on
"Larry King Live," the "Today" show and ABC's
"This Week" to proclaim his innocence, and to declare
himself the victim of a malicious government prosecution. The recent
avalanche of criticism of the FBI reflects "precisely what
I have been saying for years," a tearful MacDonald told Larry
King. "I didn't murder my wife or children. I never harmed
any of them...."
of us weaned on Fatal Vision, Joe McGinniss's slickly tendentious
account of an Ivy League golden boy's descent into psychopathy,
MacDonald's telegenic persuasiveness comes as a queasy surprise.
For, even more than the jury's stinging verdict, this true-crime
page-turner has come to define Jeffrey MacDonald in the public eye,
turning a loving father and dedicated physician into a soulless
monster of depravity. Not only did the McGinniss book smoothly lay
out the government's case--papering over discrepancies and eliding
crucial contradictions, until an iffy circumstantial case began
to seem an airtight web of verification--it also gave the prosecution's
argument a psychological superstructure. For McGinniss's literary
narrative provided something the government's legal narrative did
not--a plausible motive for why MacDonald would kill his wife and
children. In turning MacDonald into his Raskolnikov, however, McGinniss
faced a crucial stumbling block. The blandly middle-class Army doctor
refused to display any of the traits associated with people who
kill: prior to trial, five psychiatrists--including three hired
by the government--had found MacDonald sane and unlikely to have
committed the crimes. In trying to imbue his protagonist with the
requisite horribleness, McGinniss fell back on Hervey Cleckley's
The Mask of Sanity, which held that, for victims of a particular
"grave psychiatric disorder," outer normalcy was proof
of inner psychopathy. According to McGinniss's surmise, MacDonald
had murdered his family in a fit of "boundless rage" against
the female sex, suppressed since childhood but lethally detonated
after Colette voiced threatening "new insights into personality
structure and behavioral patterns," gleaned from a psychology
course in which she had recently enrolled.
Vision became a national best-seller and the inspiration for a top-rated
television movie of the same name. And McGinniss's book became doubly
famous as the object lesson at the center of The Journalist and
the Murderer, Janet Malcolm's exploration of the morally perilous
relationship between writer and subject. During the years in which
McGinniss was preparing his portrait of MacDonald as a psychopathic
killer, he had, Malcolm reported, posed as his devoted fan and supporter:
commiserating with MacDonald about his "nightmare"; offering
him legal advice; lulling him with forty friendly letters. In truth,
though, by the time the conviction was announced, McGinniss had
already decided MacDonald was a cold-blooded murderer. As McGinniss
later told a radio host, "[M]y mind was made up the same day
the jury's mind was made up." After the verdict, MacDonald
sued McGinniss, alleging breach of contract; the case was settled
was scrupulously agnostic on the question of whether MacDonald committed
the crime. As MacDonald's lawyers sent her ream after ream of what
they claimed was newly discovered exculpatory evidence, Malcolm
found herself "oppressed by the mountain of documents that
formed in my office," she wrote. "I know I cannot learn
anything about MacDonald's guilt or innocence from this material."
When Malcolm was finishing up her book, a pleading letter from MacDonald
arrived. She wrote: "It tells about developments in his criminal
case--`extraordinarily powerful new evidence,' which he is `not
yet free to make public,' but which he will send me if I want it.
I do not want it."
it seemed, did anyone else. Over the years, the journalistic industry
that has grown up around the Jeffrey MacDonald case has received
far more attention than the case itself. MacDonald and his tedious
protestations of innocence have become almost incidental to the
affair's ancillary titillations: Did McGinniss betray MacDonald?
Did Malcolm betray McGinniss?
something new is happening. Journalists, armed with the mountain
of foia documents Malcolm found so understandably oppressive, are
asking the unsettling question: What if MacDonald is innocent, after
all? Errol Morris, who exposed a famous miscarriage of justice in
his award-winning documentary, The Thin Blue Line, says he is now
trying to get money to make a movie about the MacDonald murders.
"One gets the impression reading Fatal Vision that there was
an overwhelming case against Jeffrey MacDonald. In fact, that is
just not true," Morris told me. "It's the quintessential
postmodern nightmare--a man who is in jail because everyone thinks
they know the story, when the story, for the most part, has been
framed by a book and a television movie, rather than a careful examination
of the underlying evidence." Janet Malcolm has now brought
herself to look at the foia documents as well. "The more I
read about the case," she told me, "the more I move toward
the view that he could very well be innocent."
mounts that MacDonald did not commit the crime, his attorneys have
been grinding their teeth in frustration, realizing that exculpatory
evidence is no longer sufficient to reopen a habeas petition. Thanks
to reforms to the writ of habeas corpus passed in the wake of the
Oklahoma City bombing, it is no longer enough for the defense to
show that crucial evidence was suppressed by the government; the
burden is on the defense to show that government agents did so deliberately.
But now that Michael Malone's testimony has been forcefully rebuked
(Malone swore under oath that the FBI's textbooks said that saran
could not be used in wigs; at least one textbook, in fact, says
the exact opposite), MacDonald's lawyers say they finally have the
hook they need to drag into the public record a wealth of explosive
exculpatory evidence the jury never saw.
documents, some of which were released after the publication of
Fatal Justice, reveal that evidence of intruders never entered the
official, typewritten case record. We now know that, on the very
day of the murders, Army investigators discovered five bloodstained
gloves in the kitchen, a bloody syringe in a closet and an unidentified
bloody palm print on the footboard of the bed in the master bedroom.
Wax drippings were found at three critical locations in the apartment,
including Kimberly's bedding, and the color of the wax did not match
candles found in the MacDonald apartment. A burnt match was found
at the foot of baby Kristen's bed--even though no one in the family
smoked, and there was nothing in the room requiring the use of a
documents also reveal that hair and fiber evidence--unmatched to
MacDonald, or to any other known sources in the home--was found
in every location in the apartment where, according to MacDonald's
account, a struggle occurred. In addition to the intriguing blond
wig hair, plucked from Colette MacDonald's hairbrush, two unidentified
"pubic or body hairs" were found next to the bodies of
Kristen and Kimberly. An unidentified "short brown hair"
was found clutched in Colette MacDonald's left fist. And an Army
investigator, examining scrapings from the dead children's bloody
fingernails, found brown hairs under the nails of both Kristen and
Kimberly. According to the authors of Fatal Justice, the hairs exhibited
"dissimilar characteristics," meaning that they may have
come from two different attackers. Chillingly, their roots were
intact, suggesting that the struggling girls had actually gouged
hairs out of their killers' bodies. When the lab technician found
that the hairs couldn't be linked to MacDonald, it seems he decided
to keep them a secret. A handwritten note reads: "They are
not going to be reported by me."
of foreign fibers was also omitted from the prosecution's typewritten
report. Two blue acrylic fibers--one found clutched in Colette's
hand, the other in the hallway where MacDonald claimed he lay unconscious--were
catalogued and tested by the FBI, but were ultimately unmatched
to anything in the apartment. Meanwhile, several crucial fibers
catalogued as MacDonald's turned out not to be his after all.
remember the telltale flowerpot? The one that supposedly proved
that MacDonald murdered his family, then staged a bogus crime scene
to cover his own tracks? It turns out that, moments after MacDonald
was wheeled out on a gurney, a man at the scene "picked up
the overturned flowerpot and set it upright on its base."
do not lie," prosecutor Blackburn told the North Carolina jury
in 1979. "But people can and do." Given the voluminous
and persuasive evidence pointing to MacDonald's innocence that has
come to light since his trial, the prosecutor's words ring uncomfortably
true. Should Judge James C. Fox grant a new trial to a defendant
already convicted in the public consciousness, the Fatal Vision
murderer may indeed walk out of prison a vindicated man.