When Kassab held a news conference of his own to demand that the Article 32 hearing be opened to the public, MacDonald noted that it was attended “by two major TV stations, multiple radio stations, AP, UPI, local newspapers.”
By October, even as he was awaiting the investigating officer’s Article 32 decision, MacDonald had begun to contact writers.
He wrote to John Sack of Esquire:
This letter is being written to you for the purpose of interesting you in writing a major article and/or book regarding the events of the last 9 months. … The case has received nation-wide publicity on several occasions … [It] certainly has all the emotional impact any case could have, and in addition has some interesting sidelights, such as a fund-raising drive by a prominent NY socialite … My lawyers are currently in contact with Look magazine regarding a possible article, but I am more partial to your style …”
On the same day, he wrote to Jack Nelson of the Los Angeles Times:
I have recently read of your exploits in the world of exposé as chronicled by Time magazine—it occurs to me that you are well-suited to write a major article on my case. … My lawyers are currently in some first-stage talks with Look and Esquire, but nothing has been firmed up …
After Sack turned him down, MacDonald wrote to Robert Sherrill, author of a newly published book titled Military Justice Is to Justice as Military Music Is to Music:
This letter is an attempt to stimulate your interest in writing a major article and/or book regarding my case. My lawyers are having some very preliminary-type discussions with Look regarding the case, but nothing is finalized. They will agree with me on whomever I choose to write the article/book, and I like your style.
But no one took the bait. Frustrated, MacDonald, now a civilian, reached out to late-night television show host Dick Cavett. It was an act whose consequences would prove disastrous.
On the show, MacDonald alternated between joking with Cavett and excoriating the Army for having had the gall to accuse him of the murders. “There was no evidence,” he told Cavett indignantly. He denounced the “charade” of the hearing he’d been forced to endure. He displayed no grief, and gave not the slightest indication that he was still mourning the loss of his wife and children. It was as if the murders had been a mere prelude to the crimes committed against him.
In addition, he claimed to have suffered twenty-three wounds in the attack, “some of which were potentially fatal.” MacDonald’s in-laws, Freddy and Mildred Kassab, were incredulous as they watched the show. Twenty-three wounds? Some potentially fatal?
“There wasn’t so much as a Band-Aid on him,” Mildred said later, recalling how he looked when she saw him the day of the murders. “Not even Mercurochrome.” Freddy remembered MacDonald’s first night in the hospital. He was “sitting up in bed and eating dinner with apparent enjoyment.”
MacDonald’s inappropriate affect and false claims about his injuries planted the first seeds of doubt in the minds of the Kassabs, who had been his most outspoken supporters. Freddy, in fact, watched the Cavett show on the night of his return from Washington, D.C., where he’d hand-delivered to members of Congress five hundred copies of a letter demanding a hearing into the Army’s mishandling of the case and a reinvestigation of the crimes.
MacDonald’s own accusations against the Army, made to a national television audience, brought matters to a boil. The CID command in Washington evaluated the charges leveled by MacDonald and Kassab. They concluded that while the investigation had not been “a model of its kind,” neither had it been “the amalgamation of incompetence, perjury and malicious prosecution” that both Kassab and MacDonald alleged.
Stung by MacDonald’s accusations on the Cavett show, the CID launched a reinvestigation of the murders in January 1971. Agents under the command of Colonel Jack Pruett pursued leads in thirty-two states, Vietnam, Okinawa, Germany, the Canal Zone, and Puerto Rico. They conducted dozens of new tests at the crime scene and analyzed thirty-four additional laboratory reports. They interviewed 699 people and took sworn statements from 151. On June 1, 1972, the CID delivered a three-thousand-page report to the Justice Department concluding that evidence clearly pointed to MacDonald’s guilt.
But despite the best efforts of Brian Murtagh, whose point of view was “If we believe this man murdered his wife and children, we have a moral obligation to prosecute him,” the Justice Department dithered. Two years passed before a grand jury was convened in the Eastern District of North Carolina. The jury indicted MacDonald in January 1975.
Bernie Segal quickly filed motions in federal district court in Raleigh, arguing that a trial would constitute double jeopardy, because MacDonald had already been, in effect, tried and found not guilty at the Article 32 hearing. Segal also argued that the nearly five years between the Army’s first charging MacDonald in 1970 and the grand jury’s indictment was a violation of his Sixth Amendment right to a speedy trial.
District Court judge Franklin Dupree denied both motions. He ruled that, unlike a general court-martial, the Article 32 hearing had been an investigative proceeding, not the equivalent of a jury trial. He also stated that the Sixth Amendment speedy-trial clock does not start ticking until after an individual is formally accused of a crime, and that “in this case, [accusation] did not occur until the indictment had been returned.”
The judge set a trial date of August 18, 1975. On August 15, however, the Fourth Circuit Court of Appeals, in Richmond, Virginia, ordered a stay and agreed to hear MacDonald’s appeal of Dupree’s rulings.
A panel of three Fourth Circuit judges heard oral arguments in October, and in January 1976, by a 2–1 vote, they found that “the four and one-half-year delay after formal accusation and arrest by the Army and before indictment was denial of [MacDonald’s] constitutional right of speedy trial.” The appeals court instructed Dupree to dismiss all charges.
And so Jeffrey MacDonald could continue to enjoy his Southern California lifestyle, with no clouds of worry hanging over his head.
But the Justice Department, however dilatory it had been in the early 1970s, was now determined to bring MacDonald to trial. Government attorneys appealed to the Supreme Court, which agreed to hear the case. In an 8–0 vote (Justice William Brennan abstaining), they reversed the Fourth Circuit decision and ruled that MacDonald’s trial could proceed. Justice Harry Blackmun, perhaps best known for writing the Roe v. Wade opinion that legalized abortion in 1973, expressed no view of the merits of MacDonald’s position but ruled that, as a matter of law, the denial of a speedy-trial claim could not be appealed before the trial was held. MacDonald, in other words, could properly present his argument only after he’d actually been tried.
In July 1979, more than nine years after having been charged with three counts of murder by the Army, and four and a half years after being indicted, Jeffrey MacDonald finally went to trial.
* * *
Not surprisingly, in the years that followed that notorious trial and the publication of my book, other writers became attracted to the case. Janet Malcolm of The New Yorker wrote about her view of MacDonald’s grievances against me in two articles later published as a book called The Journalist and the Murderer. (My response to her can be found on my website and in the 2012 edition of Fatal Vision.)
The latest high-profile book about the case is A Wilderness of Error, by Errol Morris, published in September 2012.
Morris, who is primarily a filmmaker (The Thin Blue Line, The Fog of War), takes the position that regardless of whether or not MacDonald murdered his wife and children, he deserves our sympathy because he did not receive a fair trial. In regard to the case, he writes, “We may never be able to prove with absolute certainty that Jeffrey MacDonald is innocent. But there are things we do know. We know that the trial was rigged in favor of the prosecution. … We know that Jeffrey MacDonald was railroaded.”
Morris, who did not attend the trial, contends that the prosecution knowingly suppressed exculpatory evidence and that Dupree’
s evidentiary rulings revealed a bias against MacDonald so strong as to have rendered his trial unfair and his conviction unjust. But no appellate court that has considered MacDonald’s myriad claims of unfairness has found either improper conduct by the prosecution or any abuse of judicial discretion by Dupree. Morris alleges some sort of grand conspiracy against MacDonald—a plot involving the U.S. Army, the FBI, the U.S. Attorney’s Office, the highest levels of the Justice Department, and at least one federal judge—but he offers no explanation of why this particular Ivy League physician who was serving in the Special Forces should have been targeted. He fails to demonstrate that the trial was “rigged,” much less by whom or for what purpose. Nor does he offer plausible motivation for those who he says “railroaded” MacDonald. While making dozens of reckless allegations, impugning the integrity of Brian Murtagh in particular (and, yes, my integrity too) Morris averts his eyes from the mountain of undisputed physical evidence that led to MacDonald’s conviction. He could have learned, for example, that MacDonald’s self-inflicted scalpel wound was on the right side of his chest, not the left, and thus did not endanger his heart. He could have learned that the rocking horse was in Kristen’s bedroom, not the living room, and that—despite the fabricated recollection of a young drug addict named Helena Stoeckley—it wasn’t broken. He could have learned that the position of the overturned coffee table, about which he writes at some length, was not even mentioned by prosecutors at trial. But if he’d allowed fact, not fantasy, to guide him, he would have found himself without a book.
Morris quotes, uncritically and at length, those who agree with his conspiratorial hypothesis, never acknowledging that they constitute only a fringe minority of the large population of individuals who have extensive knowledge about the case. And because he’s a polemicist, not a journalist, he doesn’t bother to talk to anyone who has learned the truth at which he scoffs: that the physical evidence proves MacDonald’s guilt.
I attended every minute of every session of MacDonald’s trial in 1979. In Fatal Vision, I did not hesitate to criticize Judge Dupree.
He was, I wrote, “possessed of an unusually mobile, expressive face, and from the earliest days of the trial the expression most often seen upon it as Bernie Segal conducted cross-examination was one of distaste. … With even casual spectators openly remarking on the judge’s expression, it seemed only logical to assume that it would, to some degree, indicate to the jurors where his sympathies (or lack of sympathy) lay, and possibly even suggest to some where their own belonged.”
During interviews I conducted months later, however, jurors made it clear that their verdict was based solely on the evidence and was not influenced by the judge’s impatience with Segal, which most of them found comical.
Morris has many misconceptions about what occurred during the six-week trial. This can happen when you write about the details of a complex proceeding you did not witness personally.
One of Morris’s most egregious errors concerns the jury. He apparently accepts at face value a statement by Jerry Leonard, the lawyer appointed by Dupree to represent Helena Stoeckley, the drug addict who had made many addled statements over the years suggesting she might have participated in the crimes. Leonard, who attended only small portions of the trial, said the jury was composed of “farmers” and “rednecks.” In fact, eleven of the twelve members had at least some college education. As I wrote in Fatal Vision, the jurors included “two accountants, a chemist, the son of a socially prominent Raleigh physician [and] a former Green Beret sergeant from Fort Bragg.”
Segal hired the late John B. McConahay, from the Duke University Institute of Policy Sciences and Public Affairs, to help him pick the jury. In using an academic to guide jury selection, Segal felt he was well ahead of the curve. Until the verdicts were delivered, he was delighted with the results. (Morris also writes that the jurors were sequestered during the trial. They were not.)
A larger and more serious point that Morris fails to recognize is that Fatal Vision did nothing to determine MacDonald’s fate. He writes that my book “locked [MacDonald] in a far more sinister prison” than the Federal Correctional Institution in Cumberland, Maryland, where he’s incarcerated. “[A] prison from which there is no escape. A prison where truth is drowned out by narrative.”
That statement is not only illogical, it’s absurd. Morris has an inflated sense not only of his own importance but of mine. Franklin Dupree did not base his evidentiary rulings in a 1979 trial on a point of view expressed in a book published four years later.
Twelve jurors convicted MacDonald based on the evidence presented in court. That conviction was upheld by appellate courts before Fatal Vision was published. Nothing I wrote put MacDonald in prison or has played a role in keeping him there. Because he murdered his wife and children and got caught, MacDonald would be locked up today even if I’d never heard of him.
Morris’s distorted view of the role Fatal Vision has played in the case is one he shares with MacDonald himself. In a 1988 letter to Janet Malcolm, MacDonald wrote that “by altering the known facts,” I had constructed “an evil thing,” Fatal Vision.
“By lying for money,” MacDonald complained, “by selling an artificial view of reality, McGinniss has stolen from me (or anyone) the ability to ever get the full truth out.”
Not once, not even during the seven-week trial of his lawsuit against me, have MacDonald or his lawyers been able to point to a single factual error in Fatal Vision. More important, as has been demonstrated repeatedly over the thirty-three years since MacDonald’s conviction, the full truth about the murders did come out at his trial. The failure of wave after wave of MacDonald attorneys to ever persuade an appellate court otherwise proves that.
Twenty-four years ago, Errol Morris made a movie that showed a convicted man to be innocent. The Thin Blue Line is an admirable piece of work, but not all convictions are alike. Even the most aggressive of defense attorneys will admit that the vast majority of those found guilty are guilty. To try to make MacDonald an exception requires journalistic sins of both omission and commission.
In his attempt to deconstruct the narrative of Fatal Vision and replace it with one of his own devising, Morris utterly ignores the vast body of physical evidence that proved MacDonald’s guilt beyond a reasonable doubt. Yet every bit of it has stood the test of time. To simply wish it away by pretending it doesn’t exist is as ineffective as it is irresponsible.
In terms of commission: Morris claims that evidence that might have demonstrated MacDonald’s innocence was either destroyed by incompetent investigators or suppressed by prosecutors such as Brian Murtagh, who were more interested in victory than in justice. Even a cursory examination of the case record exposes both allegations as false.
There are also constant drumbeats heralding the discovery of “new evidence”: fibers, hairs, candle wax, pieces of latex gloves that supposedly demonstrate the presence of intruders in the MacDonald home during the early-morning hours of February 17, 1970. What Morris fails to acknowledge is that there is nothing new about any of this. Bernie Segal presented it all in his closing argument, but the jury didn’t buy it and convicted MacDonald after only six hours of deliberation. In talking to jurors afterwards, I learned that not one of them thought MacDonald might have been innocent. The only reason they took even six hours was because they wanted to be fair to him, to be sure that none of them had the slightest doubt about his guilt.
It strains the facts of the case to claim that startling new evidence has recently been discovered. Every moonbeam and mote of dust that could not be linked to a member of the MacDonald family was presented to jurors as evidence of intruders in 1979, rejected by them, and litigated in district and circuit courts for years afterwards.
3. The Girl in the Floppy Hat
Much of Morris’s book involves the troubled young woman Helena Stoeckley, who testified as a witness for the defense at the 1979 trial. Morris bays about her like a hound dog who thinks he’s got a raccoon trappe
d up a tree, but in the end it’s much ado about nothing. He’s not wrong to consider her as part of his hypothesis, but he’s grossly mistaken to suggest that investigators turned a blind eye toward her because they were so obsessed with pinning blame on MacDonald.
Stoeckley’s name was first mentioned in connection with the murders almost before the sun rose over Fort Bragg on February 17, 1970. I can assure you that it will be mentioned in the very last judicial opinion written about this case. Her aura, like a fog that obscures a coastline that otherwise could be charted with precision, has pervaded the MacDonald case for more than forty years.
She was seventeen at the time of the murders, the daughter of a retired lieutenant colonel from Fort Bragg, and already addicted to hard drugs. She’d been thrown out of her home and was living in the drug-infested Haymount section of Fayetteville, considered at the time the hippie district.
Stoeckley paid for her drugs by working as an informant for a Fayetteville Police Department narcotics detective named Prince Edward Beasley. He knew that she sometimes wore a floppy hat, owned a blond wig, and wore high boots, like many other hippie wannabes. The day after the murders, finding her in the company of several young men, he questioned her. He told her she resembled MacDonald’s description of the female intruder and asked whether she was involved.
She made a joke in response. When Beasley told her to get serious, she said, according to his later recollection, “In my mind it seems that I saw this thing happen, but I was heavy on mescaline.”
Final Vision: The Last Word on Jeffrey MacDonald (Kindle Single) Page 2