Final Vision: The Last Word on Jeffrey MacDonald (Kindle Single)

by Joe McGinniss

  In Marshall’s view,

  Nothing in the language [of the Sixth Amendment] suggests that a defendant must be continuously under indictment to obtain the benefits of the speedy trial right. Rather, a natural reading of the language is that the Speedy Trial Clause continues to protect one who has been accused of a crime until the government has completed its attempts to try him for that crime.

  Nonetheless, the majority view had the force of law. Within an hour of the announcement of the Supreme Court decision, Dupree signed an order revoking bail. When FBI agents arrested MacDonald at his Huntington Beach condo, they found in his nightstand a .44 Magnum revolver and a full box of ammunition.

  5. Case Closed?

  Once again, the MacDonald case sat in the laps of Fourth Circuit judges Bryan, Murnaghan, and Sprouse. In June 1982, the panel heard oral arguments on MacDonald’s remaining grounds of appeal. In August, they unanimously upheld his 1979 conviction.

  In doing so, they found that Dupree had not committed reversible error by:

  not allowing testimony by MacDonald’s psychiatrist to the effect that he didn’t seem the sort of person who would have committed such a horrible crime;

  allowing the government to demonstrate that the pattern of puncture holes in MacDonald’s pajama top matched the pattern of ice-pick wounds in Colette’s chest, indicating that the pajama top had been on her chest before she was stabbed, which contradicted his story;

  not allowing into evidence the findings of the Article 32 investigating officer; and

  excluding the testimony of seven witnesses whom MacDonald wanted to call to testify about what Helena Stoeckley had told them at various times.

  The Fourth Circuit panel found no evidence to support the allegation that Errol Morris would make so many years later—that the trial had been “rigged in favor of the prosecution.”

  (They describe their reasoning in detail in their opinion, which can be found at U.S. v. MacDonald, 688 F.2d 224, 11 Fed. R. Evid. Serv. 474 [4th Cir. (N.C.) Aug 16, 1982] [NO. 79-5253], available to the public via PACER [Public Access to Court Electronic Records] at www.pacer.gov.)

  The only hint of disagreement came in regard to the “Stoeckley Seven”: Prince Edward Beasley and William Posey of Fayetteville; James Gaddis, Jane Zillioux, and Red Underhill, from Nashville; the Army polygraph operator, Robert Brisentine; and Wendy Rouder, a young lawyer on MacDonald’s defense team who had spent time with Stoeckley in Raleigh after she testified.

  Segal had wanted each of the Stoeckley Seven to testify about what Stoeckley had told them regarding the murders. Dupree listened to them all out of the presence of the jury. He then ruled their testimony inadmissible because it was hearsay.

  At trial, Dupree said at a bench conference, “This Stoeckley girl is, I think, one of the most tragic figures I have ever had appear in court. She is extremely paranoid about this particular thing, and what she tells here in court and what she tells witnesses, or lawyers in a motel room, simply cannot have attached to it any credibility at all, in my opinion.”

  Then, speaking specifically to Segal, the judge said, “I want you to know that Helena called me twice on Saturday night stating that she was living in mortal dread of physical harm by Bernard Segal and that she wanted a lawyer to represent her. I think the jury has got as clear a picture of this particular witness as they will ever have, even if you brought in not just Friday’s six witnesses, or your new one today, or even a whole wagonload of people.”

  It didn’t matter whether the judges on the Fourth Circuit panel would have made the same rulings at the trial. At issue was only whether Dupree had abused his discretion. “No such abuse is evident here,” Bryan declared.

  Summing up, Bryan wrote, “MacDonald asserts that the evidence, even when taken most favorably for the prosecution, does not justify the finding of guilt beyond a reasonable doubt. Our canvass of the record, however, gives ample warrant for the verdict.”

  Murnaghan concurred, but he could not resist some Monday-morning quarterbacking. “Had I been the trial judge,” he wrote:

  I would have exercised the wide discretion conferred upon him to allow the testimony [of the Stoeckley Seven] to come in. If such evidence was not persuasive … the jury, with very great probability, would not have been misled by it … . As Judge Bryan has pointed out, the evidence was sufficient to sustain the findings of guilt beyond a reasonable doubt.

  As Murnaghan demonstrated, reasonable people can disagree about Dupree’s decision to exclude the testimony of the Stoeckley Seven. But it is harder to argue that the trial judge had acted without regard for legal principle, that his bias against MacDonald overwhelmed his judiciousness, that MacDonald was “railroaded” by a southern bigot and his cronies, and that the trial was “rigged.” The Fourth Circuit scrupulously analyzed every aspect of evidence in the case, giving particular—even obsessive—attention to anything having to do with Helena Stoeckley.

  MacDonald appealed for an en banc rehearing. He was denied. He then petitioned the Supreme Court for certiorari. On January 10, 1983, he was denied. That was it. The case was closed.

  But not for long.

  * * *

  On April 5, 1984, MacDonald filed a fresh sheaf of motions with Dupree, claiming he had newly discovered evidence and invoking the doctrine of habeas corpus, which allows a prisoner to argue for his own release on grounds that his detention is unlawful and resulted from a judge’s legal or factual error.

  The doctrine of habeas corpus dates back to English common law. As applied in America in 1984, it gave a convict one last chance in court after all other avenues of appeal had failed.

  In his habeas petition, MacDonald claimed that during his trial he’d been improperly examined by government psychiatrists who were secretly acting as agents for the prosecution, and that the government had suppressed evidence that he could have used in his defense. He also renewed his claim that the Stoeckley Seven should have been allowed to testify, basing his argument on interviews that private investigators had conducted with Stoeckley in the time since MacDonald was convicted.

  Dupree held an evidentiary hearing in September. He heard final arguments in January 1985. On March 1, he denied all motions, writing an exhaustive thirty-nine-page opinion that to this day remains the most detailed account of all facts relevant to the case.

  At trial, MacDonald wanted to introduce testimony from a psychiatrist who had found him to be psychologically stable and unlikely to have committed the crimes. Dupree said that before he’d consider allowing such testimony, MacDonald would have to agree to be examined by a government psychiatrist and psychologist. In his new motion, MacDonald argued that prosecutors had used the psychiatric interview to get a preview of how he would answer certain questions relating to the physical evidence when he testified. Dupree, however, found nothing to support the claim that the government had used the psychiatric team as investigative agents. He wrote that, in fact, the prosecution’s actions during that phase of the trial were “beyond reproach.”

  MacDonald also claimed that the government had suppressed various items of evidence, including a bloody syringe, bloody clothes and boots, skin found under Colette’s fingernail, and photographs of the letter G printed on the wall of Stoeckley’s Nashville apartment, which, he said, showed similarities to the G in the word PIG written in Colette’s blood on the headboard at 544 Castle Drive.

  Dupree considered MacDonald’s claims in regard to each item of evidence. He concluded that not only had the government not suppressed any of them, but that “there has been an insufficient showing that the four items would have been favorable to the defense if introduced at trial.” (If anyone wants to read Dupree’s detailed analysis, it can be found in U.S. v. MacDonald, 640 F.Supp. 286 [E.D.N.C. 1985], available through PACER.)

  MacDonald also claimed “newly-discovered evidence.” This consisted solely of post-trial statements Stoeckley had made to two private investigators he employed, a retired FBI assistant director named Te
d Gunderson and recently retired Fayetteville police detective Prince Edward Beasley.

  In October 1980, in Fayetteville, Stoeckley had made the first of her new “confessions” to Beasley. Dupree describes what happened next:

  She and Beasley flew to California but upon being confronted with Gunderson as an interviewer, she [said] she could not remember what happened that night. Stoeckley experienced a miraculous recovery of her memory the following day, however, and between October 24–25, 1980 gave fairly detailed confessions to the MacDonald murders.

  A retired FBI agent who had worked with Gunderson at the time later said that Gunderson and Beasley had interviewed Stoeckley “for hours upon hours, day after day,” that “there was an element of duress present,” and that Gunderson had “used unethical means and tactics” to make Stoeckley confess.

  Dupree noted that Stoeckley again “confessed” to Gunderson and Beasley in Los Angeles on December 4–5, 1980. The judge said:

  The flurry of confessions by Stoeckley continued in early 1981 when she gave statements to Fred Bost, a Fayetteville newspaper reporter … pursuant to an agreement with Bost under which he was to write a book on the case and she would receive a portion of the proceeds.

  In July 1981, Stoeckley wrote to Gunderson to say,

  I have been used as a pawn for your convenience, and I also feel that in December of 1980 I was coerced into signing a so-called confession and that I was exploited by means of false hopes and empty promises. You … misconstrued and distorted all statements made to you to be used against me at your convenience.

  Meanwhile, at the behest of the Justice Department, whose lawyers—in particular, Brian Murtagh—recognized that MacDonald would keep trying to jam the square peg of Stoeckley into the round hole of the crime, the FBI was continuing its own investigation of her.

  Agents went to her home in South Carolina and interviewed her in September. She gave them a written statement that read,

  The truth of the matter is that I do not actually know where I was during the early morning hours of February 17, 1970 and I do not know if I was present or participated in the MacDonald murders.

  When they learned of this the following spring, Gunderson and Beasley went to South Carolina to confront her. They found her pregnant. They spent four days with her in May, at the end of which she recanted her recantation and confessed anew. She said she’d been part of a witchcraft cult but could not divulge the names of other members, because they’d threatened her and her unborn child. Later in May, she went to New York with Gunderson to be interviewed on 60 Minutes. Again, she “confessed.” The interview was never broadcast because producers found that Stoeckley lacked credibility.

  For a young woman starved for attention, she was certainly receiving a fair share.

  Trying to make sense of the hodgepodge, Dupree was struck by “the contradictions and inaccuracies that predominate” in the statements Stoeckley had made over the course of twelve years.

  Summarizing his reasons for not granting MacDonald a new trial on the basis of Stoeckley’s post-trial “confessions,” Dupree wrote, not unsympathetically:

  Stoeckley’s uncertainty and the relentless attention the case focused upon her undoubtedly tortured her over the years. Her drug abuse of the late 1960s and early 1970s gave way to alcohol abuse in the late 1970s, which contributed to her premature death in 1983.

  The confluence of her drug and alcohol abuse and uncertainty over her role in the crimes appears to have ultimately led her to believe that she was involved and to piece together her fragmented memory of 1970 into an explanation which MacDonald says amounts to a confession.

  Whether this was done innocently or by design to gain the attention which she craved is unclear from the record. What is clear is that considering all of the circumstances, neither Stoeckley nor her “confessions” are reliable.

  Referring to the “factual charade” enacted by false confessors such as Stoeckley, Dupree wrote,

  If the government were again called upon to present its evidence at a new trial and MacDonald was able to put all, or even selected parts of his new evidence before a second jury, the jury would again reach the almost inescapable conclusion that he was responsible for these horrible crimes.

  MacDonald’s lawyers were back in Richmond by October. This time, the Fourth Circuit panel consisted of Murnaghan, Chief Judge Clement Haynsworth, and Donald Russell. They made short work of MacDonald’s appeal.

  Haynsworth wrote:

  In much greater detail than we, the district judge considered every contention that MacDonald advanced. The care with which it was done is evident, and we may conclude this much briefer opinion with the statement that there is no basis upon which any ruling in this case by a meticulous district judge can be overturned.

  In October 1986, the Supreme Court turned down a petition for certiorari. Again, the case seemed closed.

  6. “The Evidence as a Whole”

  In October 1990, a new wave of MacDonald lawyers filed a second habeas corpus petition with Dupree. He held a hearing in June 1991, and in July he denied the petition. By then he was unable to hide his amazement that the case was back before him.

  “In this court’s twenty years on the bench,” he wrote, “no other case has been the subject of more public and judicial scrutiny than this one. Virtually every aspect of the case has been detailed in eleven reported judicial opinions, a best-selling book, a television drama, various documentaries and countless articles and news reports. Although more than twenty years have passed since the murders, interest in the case remains seemingly unabated.”

  Turning to the issues presented to him, Dupree described how MacDonald’s investigators had reviewed documents obtained under the Freedom of Information Act and had examined the entire CID file on the case.

  They claimed to have found references to fibers and hairs discovered at the crime scene that did not match any known source in the MacDonald home, as well as notes that they said indicated the government knew it had an obligation to inform the defense about these hairs and fibers but had not done so.

  But the only issue before Dupree was whether the jury’s verdict would have been different if they’d been aware of the allegedly suppressed evidence.

  “The law should not erect technical roadblocks for defendants seeking to receive the due process they are entitled to under the Constitution,” Dupree wrote. “At the same time … courts strive ultimately for just results rather than for technical perfection.”

  MacDonald claimed that the allegedly suppressed evidence—in particular, handwritten lab notes referring to certain fibers—would have corroborated his story of drug-crazed hippies bursting into his home. Dupree found, however, that “close analysis of the factual fiber evidence at issue reveals that the fibers provide little, if any support for MacDonald’s account of the crimes.”

  In short, the newly discovered notes about hairs and fibers not presented at trial did not provide evidence of intruders. They could have come from anyone who had ever been inside 544 Castle Drive, even before the MacDonald family had moved in. As Dupree put it, “The allegedly suppressed evidence would simply mirror other evidence of unexplained household debris that was presented to the jury.”

  “In the end,” Dupree concluded, “the additional evidence has not changed the court’s opinion.”

  For MacDonald’s lawyers, this meant another trip to Richmond. And the list of lawyers grew ever longer. By the time of oral argument before a three-judge panel of Murnaghan, Donald Russell, and John Butzner, in February 1992, MacDonald’s team, paid through his legal defense fund, consisted of Alan Dershowitz of Harvard Law School; Harvey A. Silverglate, Andrew Good, Philip G. Cormier, and Thomas C. Viles of Silverglate & Good, in Boston; Roger C. Spaeder and David Hickerson of Zuckerman, Spaeder, Goldstein, Taylor & Kolker, in Washington, D.C.; Anthony P. Bisceglie of Bisceglie & Walsh, in Washington, D.C.; Norman B. Smith of Smith, Follin & James, in Greensboro, North Carolina; and John J.E. Markha
m II of Santa Clara, California.

  In June 1992, Russell, writing for a unanimous Fourth Circuit panel, found that MacDonald was abusing the habeas corpus privilege.

  Russell wrote:

  We have carefully reviewed the voluminous record of evidence in this case, beginning with the original Article 32 proceedings through the present habeas petition, which contains over 4,000 pages. Yet we do not find anything to convince us that the evidence introduced here, considered with that previously amassed, probably would have raised reasonable doubts in the minds of the jurors. … While we are keenly aware of MacDonald’s insistence as to his innocence, at some point we must accept this case as final.

  On November 30, 1992, the Supreme Court again denied MacDonald’s certiorari petition.

  * * *

  Judge Dupree died in December 1995, at the age of eighty-two. This gave MacDonald new hope. Maybe a new judge would take a fresh look at his case.

  In April 1997, he filed a motion to “reopen” his 1990 habeas corpus petition. At the same time, he filed a separate motion asking for permission to conduct mitochondrial DNA testing on unidentified hairs found at the crime scene. (The technology that enabled such testing had not been available in 1979.)

  Federal law 28 U.S.C. Section 2255 grants a prisoner the right to present new evidence to a court in an effort to have his conviction overturned on grounds that he was deprived of a constitutional right. As long as MacDonald could claim to have discovered “new evidence,” he could keep his case alive.

  In 1996, however, Congress passed a law stipulating that a federal prisoner could file only one Section 2255 petition unless an appellate court granted a waiver known as a pre-filing authorization.

  Such authorization was to be granted only if a new petition cited “newly discovered evidence that, if proven and viewed in light of the evidence as a whole [emphasis added], would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the movant guilty of the offense.”