Judge in MacDonald hearing weighs next steps

ablythe@newsobserver.comSeptember 25, 2012 

Fatal Vision

FILE - This 2007 file photo provided by Kathryn MacDonald, shows Jeffrey MacDonald at FCI Cumberland. MacDonald's pregnant wife and two young daughters were murdered in their Fort Bragg, N.C., home in 1970. MacDonald was convicted of the crimes. On Monday, Sept. 17, 2012, MacDonald is scheduled to appear in federal court for a hearing about new evidence in the case. (AP Photo/Kathryn MacDonald, File)


— In a federal courtroom overlooking one of North Carolina’s longest rivers, the judge presiding over Jeffrey MacDonald’s latest request for freedom acknowledged being in uncharted waters Tuesday.

James C. Fox, a senior judge for the U.S. Eastern District of North Carolina, voiced his discomfort to prosecutors and defense attorneys at the close of a hearing where MacDonald’s lawyers are seeking to vacate his 1979 conviction for killing his wife and two young daughters.

The late Franklin Dupree was the judge during the 1979 trial and for many of MacDonald’s post-trial proceedings. But Dupree died in 1995, and Fox now must decide what path the case takes next on its tortuous legal journey.

The U.S. Fourth Circuit Court of Appeals sent the MacDonald case back to Fox’s courtroom, telling him he needed to consider claims about new DNA evidence in the context of all the evidence. The appeals court did not elaborate on the meaning of “all the evidence.”

“I want to get it settled in my mind what we’re doing and where we’re going,” Fox told lawyers late Tuesday after they offered closing arguments for why he should or shouldn’t grant MacDonald’s request to vacate the verdict. “That issue is not exactly in focus for me.”

MacDonald, now 68, has maintained since his pregnant wife, Colette, and their daughters Kimberly, 5, and Kristen, 2, were found dead in February 1970 that intruders fatally stabbed and bludgeoned his family.

In 2006, DNA test results showed that three hairs found in the bloody Fort Bragg apartment where the MacDonalds lived did not match any family members. The DNA also did not match that of Helena Stoeckley – a drug-addled woman considered to be key to the defense team’s intruder theory – or her then boyfriend, Greg Mitchell. But MacDonald contends the hairs bolster his claims that a woman and three men were responsible for the bloodshed.

Persuasive evidence?

That evidence, coupled with an allegation of prosecutorial misconduct by a retired U.S. marshal, now deceased, should be persuasive enough to vacate the conviction, the defense team said in closing arguments. The prosecution argued otherwise, questioning the veracity of the marshal’s statement and the significance of three hairs that had no blood on them and no signs of being ripped from a pore.

Jimmy Britt, the retired marshal, alleged in 2005 that as he drove Stoeckley from South Carolina to North Carolina for the 1979 trial, she told him of her involvement in the crime.

Prosecutors Brian Murtagh, an assistant U.S. attorney at the 1979 trial, and John Bruce, who came to the case much later in its 33-year history, brought forward former marshals, former FBI agents and others to back their contentions that Britt did not drive Stoeckley in 1979. They further argued that Britt was not in a room with prosecutors as they interviewed Stoeckley before her testimony.

Bruce went meticulously through the sworn statement of Britt and suggested 27 places where it did not stand up to law enforcement reports, jail logs and trial transcripts.

“The other side has the burden of proof,” Bruce said, “and they’ve failed to prove the Britt claim.”

The defense team argued in its 80-minute closing statement that Britt’s statement should not be discounted. Defense lawyer Gordon Widenhouse contended that the DNA evidence, coupled with the statement, would have resulted in a different verdict had the jury heard about it.

“No reasonable juror would have found Jeffrey MacDonald guilty if they had this evidence,” Widenhouse told Fox.

The MacDonald case, which over the decades has generated best-selling books, a top-rated TV miniseries, countless articles and strong camps of opinions, has outlived many of the key witnesses.

Stoeckley, who died in January 1983 from pneumonia complicated by cirrhosis, was long considered a person of interest to both law enforcement officers and defense attorneys. She gave many accounts of her whereabouts on Feb. 16 and 17, 1970 – shortly before and after the murders.

Stoeckley told some she could recall nothing from that night, saying she had taken mescaline that “knocked her out.” On other occasions, Stoeckley told family and friends that she was present inside the MacDonald home when the bloodshed occurred and offered up details about a hobby horse and a phone call to the home that night.

‘The holy grail’

Joe McGinniss, the author of “Fatal Vision,” a book about his embedding with the defense team, testified for prosecutors Friday and Monday. He described the defense’s efforts in 1979 to get Stoeckley to testify that she was in the MacDonald apartment as their “Holy Grail.”

Thirty-three years later, the current defense team still considers that to be the case. Or as Widenhouse told the judge on Tuesday, “Again, ‘the Holy Grail’ of this account of intruders that the defense did not have at the trial.”

Stoeckley testified in 1979 but did not acknowledge being in the home – an account that was so disappointing to the defense team that it talked about having her declared a hostile witness.

On Monday, Jerry Leonard, a lawyer from Raleigh, testified that after Stoeckley’s testimony but while she being held as a material witness who could be called to the stand again, she gave two divergent accounts of her recollections of that night.

Initially, she suggested that she was not there and that she could recall nothing. Then, hours later, she told him she and others in an occult group went to the MacDonald home and that she saw a broken hobby horse and answered the phone while she was there.

That matched, in part, a statement Stoeckley’s mother provided to defense attorneys before her own death several years ago.

Though Leonard’s testimony supported, in part, MacDonald’s contentions that intruders committed the murders, it did not support the defense team’s claims of prosecutorial misconduct. Leonard, who testified he spent days “babysitting” Stoeckley in 1979, said he never heard her complain about threats from prosecutors, which Britt had alleged.

Bruce said in his closing arguments that he thought Leonard’s testimony could not be taken sincerely because “he had a lot of memory problems concerning important facts of the case.”

No CSI in the ’70s

Though it was the DNA from three hairs – one under Kristen’s fingernail, another on her bedspread and a hair found underneath the body of Colette MacDonald – that prompted the defense team to seek a vacating of the conviction, MacDonald’s attorneys offered little evidence about the hairs.

Murtagh, the prosecutor who was present at the 1979 trial, contended that other hairs were present on the bedspread – animal hairs that did not match any of the MacDonald pets. Furthermore, Murtagh argued, the hairs could have come from contamination during testing over the years. He said forensic science and technology at the time of the murders was much more rudimentary than now.

“This was not CSI in 1970,” Murtagh said.

Fox said he would give the defense team up to 60 days after receiving a transcript of the proceedings to write briefs about anything else they needed to say. The prosecution, Fox said, could have up to 60 days after that to respond.

Blythe: 919-836-4948

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