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THE
DISINTEGRATION OF AMERICAN JUSTICE
Two Case Studies in Government Malfeasance
By
Edward Zehr
May 26, 1997 Recent irregularities in the handling of evidence by
the FBI, described in a report issued by the inspector general of
the Justice Department, are having repercussions on cases thought
to have been settled long ago. Perhaps the most striking example
of this to date is the case of Dr. Jeffrey R. MacDonald, an Army
surgeon with an ivy league background who was convicted of murdering
his wife and two small children. The case attracted national attention
when Joe McGinniss wrote a best-selling book about it titled Fatal
Vision. The unraveling of the case began with an article by Laurie
P. Cohen that appeared in the April 16 Wall Street Journal. In the
article Cohen revealed that FBI hair-and-fibers examiner Michael
P. Malone had apparently submitted two fraudulent affidavits. Then,
in an article appearing in the May 26 New Republic, Ruth Shalit
disclosed that one of the affidavits, regarding "a strand of
synthetic blond fiber... has become the basis of a habeas petition
to gain a new trial for MacDonald." It seems that Malone had
sworn that such material is not used in making wigs, knowing full
well that it is used for this purpose. This is a crucial point in
that MacDonald claimed that his family had been attacked by "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."
THE
CASE AGAINST MACDONALD
MacDonald,
a Green Beret surgeon, was living on base with his family at Fort
Bragg, North Carolina when, on February 17, 1970, military police
at the base received a call from him saying, "We've been stabbed.
People are dying... I may be dying." When military police arrived
at the apartment they found MacDonald's wife stabbed to death in
the master bedroom and his two daughters hacked to death in their
beds. They had been attacked with "an ice pick, a Geneva Forge
knife and a wooden club later found in the backyard." MacDonald
was unconscious, but alive. He was taken to a hospital where he
later told police that his family had been attacked by drug crazed
hippies who rampaged through his apartment carrying a candle and
chanting "acid is groovy" as they slaughtered his family.
MacDonald said that he had been sleeping on the living- room sofa
when his family was attacked. He claimed that he was beaten and
slashed by three men until he passed out. He was treated "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..." The Army's Criminal
Investigation Division did not believe MacDonald's story. For one
thing, they thought the crime scene was a bit too tidy to have been
the scene of a desperate struggle, citing a flowerpot that was still
upright. They also cited forensic evidence which they had turned
over to the FBI. "A bloody strand of Colette's head hair entwined
with one of MacDonald's pajama fibers" was taken to be evidence
that MacDonald had struggled with his wife. MacDonald's bloody footprint
in the doorway of his daughter's bedroom was said to prove that
he had paused there as he carried his wife's body into the master
bedroom. But the fact that two of MacDonald's pajama fibers were
found on the murder club was said by Lead prosecutor James Blackburn
to be the "most important" evidence of all.
MacDonald's
defense was plagued by the lack of certain evidence as well. Investigators
said none of MacDonald's pajama fibers or blood were found in entrance
to the hallway where he claimed to have struggled with the intruders.
The jurors, although troubled by the seeming lack of motive, were
convinced by the absence of blood where MacDonald said the struggle
had taken place and by the lack of evidence of intruders. After
deliberating for six hours they convicted MacDonald of triple murder.
He was sentenced to three life terms to be served consecutively.
HOW
THE CASE WAS RIGGED
Ms. Shalit
notes that MacDonald's attorneys made repeated requests for "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."
The government
attorney in charge of the case, Brian Murtagh, refused to turn over
any documentation to the defense and Judge Franklin T. Dupree would
not require him to do so. Any discrepancies that might turn up later
would be grounds for reversal of the verdict, he assured the defense
team. MacDonald's attorneys were unable to obtain the documents
until thirteen years had passed and Congress finally compelled disclosure
under the Freedom of Information Act. What they found is quite revealing.
The typewritten FBI summaries had omitted much of the significant
information that was contained in the handwritten notes of the investigators.
A substantial amount of this information contradicted the allegations
made by the prosecution during the trial. For example, that bloody
footprint found in the doorway of his daughter's bedroom was explained
by " 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,"
according to Shalit. Jurors had been told of pajama fibers, entwined
with a hair, of Mrs. MacDonald being found on a bedspread. They
were not told that investigators had "examined debris from
the bedspread three times in 1970 and found none of Colette's bloodstained
hair." As for the absence of blood in the hallway where MacDonald
claims he struggled with the assailants who slashed him, "The
notes," says Shalit, "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." Not only had this information been concealed
from the defense lawyers, the prosecution represented the absence
of blood at this location as a major discrepancy in MacDonald's
story. In other words, they deliberately and knowingly framed the
defendant with perjured testimony. Jurors later cited this point
as the main reason they were unable to believe MacDonald's story.
As for the "most important" evidence in the case, the
"pajama fibers" that the prosecution claimed were found
on the club used in the murders, It turns out that what the lab
technicians who examined the weapon actually found were "two
strands of black wool, wool that didn't match any clothing in the
apartment," says Shalit. Jerry Allen Potter and Fred Bost wrote
in their book Fatal Justice regarding the major allegations made
by the prosecution, "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."
It gets worse. One piece of evidence withheld from the defense that
later turned up in the FOIA documents is a confession by Helena
Stoeckley, a hippie from nearby Fayetteville, who confessed to participating
in the murders. Her confession was confirmed by a polygraph test.
According to Shalit, Stoeckly was a "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."
Judge Dupree ruled that the confession was "irrelevant"
because, he maintained, there was no forensic evidence linking Stoeckly
to the murder scene. MacDonald has recently appeared on a number
of TV talk shows, declaring his innocence and accusing the government
of malicious prosecution. The attempts by MacDonald's attorneys
to win him a new trial have been stymied thus far by "reforms"
to the writ of habeas corpus passed by a craven, limp-wristed Congress
following the Oklahoma City bombing. Shalit writes, "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.
Published
in the May 26, 1997 issue of The Washington Weekly
©1997 The Washington Weekly
(http://www.federal.com) Reposting permitted with this message intact
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