Jeffrey MacDonald revives push to prove his innocence

42 years later, the case goes on

ablythe@newsobserver.comSeptember 15, 2012 

  • Where are they now? Jeffrey MacDonald Convicted Aug. 29, 1979, of one count of first-degree murder in the death of his 2-year-old daughter and two counts of second-degree murder in the deaths of his 26-year-old wife and 5-year-old daughter. MacDonald, who testified in his defense, was sentenced to three terms of life in prison, with a release date set for 2071. The prosecutors Brian Murtagh: A former Army criminal investigator and JAG officer. He is a special U.S. attorney on the potential witness list for the hearing in Wilmington. James Blackburn: Federal prosecutor in the 1979 trial who pleaded guilty in November 1993 to fraud, embezzlement and forgery after faking a lawsuit, preparing 17 phony court orders and diverting $234,054 from his own Raleigh law firm. He suffered from severe depression at the time. He wrote a book about his experience and currently is a motivational speaker. The defense attorneys Bernie Segal: Civil rights attorney from Philadelphia, and later a Golden Gate University law school professor. He represented MacDonald during the military proceedings that resulted in no charges and also at the trial in Raleigh. He died in August 2011. Wade Smith: The Raleigh lawyer who represented MacDonald at trial. He continues to practice law in Raleigh. Some of his more recent high-profile cases include representing John Edwards, the former vice presidential candidate tried and acquitted this year on campaign-finance violations, and the Duke lacrosse players exonerated by the state attorney general after being wrongfully accused of rape. The judge Franklin T. Dupree: The U.S. District Court judge who presided over the trial and many of the subsequent appeals. He died in 1995. Key witnesses Helena Stoeckley: The woman in the floppy hat who was seen on the Army base a few blocks from the crime scene near the time of the murders. She confessed to seeing the killings, then at trial testified that she had not. She was a known drug user in the area. She was found dead in her apartment in 1983. Helena Stoeckley: The mother of the key trial witness provided the defense team with a sworn statement three years before her death, saying her daughter told her on more than one occasion that she had been in the MacDonald house on the night of the murders. The younger Stoeckley told her mother that her boyfriend and another man went crazy that night and started killing people. Colette MacDonald’s family Mildred Stevenson Kassab, her mother, and Alfred G. “Freddy” Kassab, the stepfather and protagonist of “Fatal Vision” who led the charge for the civilian indictments and trial after the Army had ruled there was insufficient evidence to try Jeffrey MacDonald in military courts. They fought against his release until their deaths. Both Freddy and Mildred Kassab died in 1994.

One hundred miles separate the Fort Bragg apartment where the murders occurred and the Wilmington federal courthouse where Jeffrey MacDonald will make his latest stop on a tortuous legal path.

But the journey from the murder scene at 544 Castle Drive to a courtroom in North Carolina’s historic port city stretches a far greater distance – through time and lives and volumes of appeals and reviews.

The case of the former Green Beret captain and Princeton-educated doctor convicted of slaughtering his family has endured for four decades, generating several best-selling books, a top-rated TV miniseries, countless articles and a bulging docket that includes review by the U.S. Supreme Court a remarkable seven times.

Testimony and scenarios have been questioned multiple times. Memories have faded. Evidence has been lost.

Key figures have died and others have grown from young to gray-haired, including MacDonald, 68, alternately described as a remorseless psychopath who is right where he should be and an emotionally aching victim whose devastating loss has been compounded by a gross miscarriage of justice.

MacDonald – federal inmate No. 0131-177 – will be back behind the defense table beginning Monday amid a reunion of characters now familiar to those who have followed the legal drama’s many chapters.

The crime dates to the era of Nixon, draft dodgers and The Beatles, but it is being seen in the new light of crime-scene science and technology developed since. DNA testing and other analytical tools and crime-scene protocols were not available or in practice on Feb. 17, 1970, when police found MacDonald wounded near the bludgeoned and stabbed bodies of his wife, Colette, and their daughters Kristen, 2, and Kimberly, 5.

An Army review of the case found insufficient evidence to charge MacDonald in the killings, but a dogged crusade by Colette’s stepfather, Alfred G. “Freddy” Kassab, led to an indictment and civilian trial.

Will DNA help?

As the legal file of MacDonald has grown thicker, the focus has shifted from the crime itself to the procedural side as lawyers and skeptics of the 1979 conviction have highlighted flaws of the investigation and trial.

Those methods and procedures are the subject of a new book by Errol Morris, an Oscar-winning documentarian whose “A Wilderness of Error: The Trials of Jeffrey MacDonald,” was published this month by The Penguin Press.

“I believe he is innocent. I don’t see any evidence to suggest that he is guilty,” Morris told The New York Times in a Sept. 2 report on his book. “One thing we do know is that evidence was lost, some of it went uncollected, and some of it was contaminated. One of the reasons we can’t prove he is innocent is that so much of the evidence is unavailable to us.”

But it is that evidence, looked at with freshened hindsight, that will bring together a collection of well-known characters in the long-running narrative born from that bloody February night.

In April 2011, the 4th U.S. Circuit Court of Appeals ordered the trial court to consider DNA evidence casting doubt on MacDonald’s guilt in conjunction with the other evidence submitted by MacDonald’s team. The appeals court said the evidence must be considered as a whole, rather than piecemeal.

The hearing in front of Judge James Fox in North Carolina’s federal Eastern District is to consider new claims about DNA evidence that was tested in 2006. The DNA testing shows that two tiny hairs found beneath the fingernails of MacDonald’s daughters do not match anyone examined in the investigation, evidence that MacDonald contends bolsters his account of the killings.

The judge also could consider statements made by a former marshal and the mother of a drug-addled woman spotted by law-enforcement officers near the murder scene.

Two writers clash

Though it will not be a retrial of a decades-old case, the hearing will have echoes of a trial that has created strong camps of opinion.

“This is very significant,” said Kathryn MacDonald, who married MacDonald in federal prison in 2002, five years after she wrote to him about his case.

The decades have provided spin-off storylines that could further play into a case that continues to stir debate.

Morris, whose documentary “The Thin Blue Line” helped free a man in Texas wrongfully convicted of murder, castigates Joe McGinniss, the author of “Fatal Vision,” the best-selling 1983 account of the case.

Morris joined a chorus of others questioning whether McGinniss pretended to believe MacDonald was innocent to gain continued cooperation for a book that ultimately concluded guilt. MacDonald sued the author, and though a trial on the matter resulted in a hung jury, the publisher’s insurance company reached an out-of-court $325,000 settlement that was distributed to the inmate’s mother and mother-in-law.

McGinniss, whose book is about to be reprinted and issued for the first time as an e-book, told The New York Times he is comfortable with his conduct and conclusions.

“There is no question in my mind that he did it, and that it was proved in a court of law, and that every court that has looked at that jury verdict has upheld it,” McGinniss told the Times.

McGinniss added that he has been subpoenaed to appear at the hearing in Wilmington and “looks forward to going wherever I need to, to play whatever small role I can play in keeping him where he belongs.”

Very different stories

The case has two very different narratives, one provided by MacDonald and the other by prosecutors.

MacDonald’s is this: He went to sleep on the living room couch several hours after midnight. His youngest daughter, Kristen, had wet his side of the bed he shared with his wife. Instead of waking her to change the sheets, he carried his daughter back to her room and grabbed a blanket to settle down in the living room.

He awoke to shouting and screaming, his pregnant wife and older daughter, Kimberly, appealing for his help.

MacDonald told authorities he opened his eyes to find four figures standing over him: two white men, a black man in a military fatigue jacket with sergeant’s stripes on the sleeve and a woman wearing a floppy hat over stringy blond hair.

He contended the woman chanted “Acid is groovy, kill the pigs,” reminiscent of the drug-crazed Charles Manson murders that had happened one year before.

MacDonald claims the intruders clubbed him and stabbed him with what looked to be an ice pick. He lost consciousness.

He awoke and found his wife dead in the master bedroom, pulled a knife out of her chest, lay beside her and attempted to give her mouth-to-mouth. The word “pig” was written in blood on the bed headboard. He then found his girls, lying bloody in their bedrooms, and called for help at 3:33 a.m.

Prosecutors provided a different story:

They argued that despite MacDonald’s injuries – blunt-force trauma to the left side of his forehead, a bruised right forehead, stab wounds and a collapsed lung – he had snapped and killed his family in a rage.

His wife had been stabbed with a knife 16 times in the chest and neck. An ice pick was driven into her chest 21 more times. She’d also been hit at least six times in the head with a club, and had broken arms.

Kimberly had been clubbed in the head at least six times, with one blow shattering her skull and another splintering her nose and cheek. She also was stabbed in the neck repeatedly as she was close to death.

Kristen had 33 stab wounds from a knife – in the chest, in the back and one to her neck. An ice pick had been plunged into her chest 15 times and her finger was cut to the bone, with prosecutors suggesting that showed she had tried to protect herself.

Prosecutors, though, never presented a clean motive for why a man with no signs of a violent past would snap, bludgeon his family, stage a crime scene and inflict wounds on himself. His case exposed extramarital affairs, but there was no testimony or evidence of one going on at the time of the murders.

Threatening a witness?

MacDonald, according to federal prison locator records, has been in transit for several days from the Cumberland medium-security prison in western Maryland, where he has been housed in recent years.

In the hearing, his burden is high: He must show a constitutional violation and clear and compelling evidence of “his actual innocence.”

He has outlived two of the people whose statements are to be the subject of the coming hearing.

In 2005, retired Deputy U.S. Marshal Jimmy Britt came forward to say that he saw prosecutor James Blackburn threaten Helena Stoeckley, often referred to as the “woman in the floppy hat,” who claimed she was inside the MacDonald home when the murders occurred.

Though Stoeckley, a woman known to police who struggled with drug abuse, died in 1983, her mother came forward when she was 86, three years before her death, to talk with the MacDonald defense team. She said her daughter confided in her several times that she and several of her friends had gone to the MacDonald house on the night of the murders to intimidate the doctor because they believed he was being too hard on drug users.

The mother continued that her daughter told her that one of the men went “out of his mind” and that when she became aware that her boyfriend at the time and another man began killing the family, she fled.

Stoeckley said her daughter tried to tell the truth – that she was in the MacDonald house and her then-boyfriend, a man who died of liver failure 1982, and another man were responsible for the deaths – but the FBI and other law enforcement officials told her to keep quiet.

Helena Stoeckley did not testify about that at trial. Her mother said her daughter confided in her that she lied at the trial and was afraid to come forward with the truth because she was afraid of the prosecutor.

Though Mrs. Stoeckley, also named Helena, died in 2009, she told MacDonald’s defense team that she had told her son what her daughter said. He could be called to the stand in MacDonald’s latest appeal.

Others on the possible witness list include:

• Lee Tart, a retired U.S. marshal who was a close friend of Britt, the former marshal who signed a sworn statement saying he heard Blackburn coerce a witness to lie.

• Blackburn, the former prosecutor, who said this past week that he planned to be in Wilmington. He declined to comment about specifics of the case because he might be called to testify.

• Janice Glisson, an 80-year-old retired Army Criminal Investigation Command lab worker who testified at the original trial.

Also on the list are Brian Murtagh, a prosecutor at the 1979 trial, and Wade Smith, the Raleigh lawyer who defended MacDonald in 1979.

The hearing could bring a variety of results: The judge could vacate the conviction, order a new trial or determine that the new evidence would have had little significance on the outcome of the trial and the verdict reached 34 years ago.

MacDonald, just 26 years old when his family was murdered, was a successful, good-looking man who seemed to have much going for him. The man voted by his high school class as the most “popular” and “most likely to succeed,” the doctor who married his high school sweetheart, has spent more than 60 percent of his life behind bars, protesting that he has been wrongfully convicted and imprisoned for a heinous crime he insists he did not commit.

“There are many reasons why there’s so much interest in this case,” said Christine Mumma, executive director of the North Carolina Center on Actual Innocence, which also has taken up MacDonald’s case. “If that could happen to a family like that, that’s intriguing and scary. This case has a lot of unique and very fascinating facts.”

And one of them is this: After 42 years, it is not over.

Blythe: 919-836-4948

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