Because she was a material witness who had not responded to subpoenas, Judge Dupree issued a warrant for Stoeckley’s arrest on August 13, 1979. She was found the next day hiding in a trailer on the outskirts of Oconee, South Carolina, in the company of her fiancé, Ernie Davis. She spent the night of August 14 in the Pickens County jail. On August 15, U.S. marshals—Jimmy Britt not among them—brought her to the Wake County jail, in downtown Raleigh, where she spent the night.
On Thursday, August 16, Britt and a female employee of the U.S. Marshals Service drove her the six blocks to the federal courthouse. Segal planned to put her on the stand the next day, Friday, but first Dupree gave both Segal and the prosecutors a chance to talk to her, separately and privately.
Naturally, every member of MacDonald’s defense team, about half a dozen people in all, wanted to sit in on Segal’s interview with Stoeckley. But only co-counsel Wade Smith and I—a writer whom Segal wanted present for the greatest triumph of his career—were present.
Yet Segal’s hopes were dashed. Stoeckley said repeatedly that she’d never been in MacDonald’s home, that she knew nothing about the murders, that she could not help MacDonald in any way. Segal even brought in the six current members of the Stoeckley Seven (lawyer Wendy Rouder’s interactions with Stoeckley had not yet occurred) to confront her. It made no difference.
“If I could remember, I would tell you,” she said, demure in white shoes and a floral print dress. She had a broken arm (she had been hit by a tire iron in Cincinnati, she said), dull eyes, and thin, unexpressive lips. She spoke softly, in a voice devoid of affect. “I can’t help you. I wasn’t in that house. I didn’t have anything to do with any of this.”
It went on like that for three hours, after which Stoeckley asked for a bologna sandwich. In the afternoon, prosecutors Jim Blackburn and Brian Murtagh interviewed her. U.S. Attorney George Anderson and Assistant U.S Attorney Jack Crawley observed. Jimmy Britt did not. The next day, Stoeckley took the stand and repeated, on both direct and cross-examination, that she knew nothing.
Bruce told me he might also introduce the subject of Eskatrol, the amphetamine MacDonald had been taking in order to lose weight in the weeks leading up to the murder. Although already fit, he said he’d lost twelve to fifteen pounds in the three to four weeks before February 17, 1970.
After his conviction, I had discovered a memo MacDonald had written for his military attorney in 1970 in which he expressed concern that lab analysis of his blood might turn up the presence of amphetamine. As it happened, the CID never tested for amphetamine, and nine years later at MacDonald’s trial, no mention of Eskatrol was made.
In Fatal Vision, I wrote that some of the side effects of excessive use of Eskatrol, such as insomnia, tenseness, irritability, assaultiveness, hallucinations, and even psychosis (effects specifically mentioned in medical textbooks), might be relevant to discussions about what could have driven MacDonald into such a murderous rage during the early-morning hours of February 17, 1970.
Because Eskatrol had never been mentioned either at trial or in any motion filed by either side in subsequent years, I didn’t see why Bruce wanted to ask me about it now. He explained that, through my testimony, he’d be able to get into the record for the first time a possible explanation of what had caused MacDonald to commit the murders. Motive had always been a problem for prosecutors. Even at trial, the best Blackburn could offer was that MacDonald, “perhaps mad, perhaps disgusted, perhaps exhausted,” had flown into a frenzy when he discovered that his daughter had wet the bed.
There was no evidence that MacDonald had overdosed on Eskatrol and experienced an uncontrollable rage reaction; there were only inferences that could be drawn from his notes. But thanks to the Fourth Circuit, rules of evidence would not apply at the hearing. Bruce explained that by having me read the Eskatrol section of Fatal Vision into the record, he was assuring that both Fox and a future Fourth Circuit panel would have it in front of them for consideration.
“Judge Fox has made it clear,” Bruce told me, “that at this hearing he’s going to interpret ‘the evidence as a whole’ to mean the kitchen sink and everything in it.”
That included Eskatrol, a drug not legally sold in the United States since 1980.
My wife, Nancy Doherty, and I had dinner with Brian Murtagh on Sunday night. Thirty years earlier, Murtagh had told me that MacDonald was never going to accept his guilt. “The case is never going to be in a posture where he just sits quietly in jail and lets the years roll by,” he’d said. Our presence together in Wilmington showed how right he had been.
Errol Morris tried to portray Murtagh as being obsessed with MacDonald. He quoted his friend Harvey Silverglate, a former MacDonald lawyer, as saying Murtagh himself has been “condemned to prison” by the case. “Murtagh can never leave DOJ,” Silverglate told Morris, describing MacDonald and Murtagh as “both prisoners, only at different ends of the Department of Justice: one’s a prisoner of the department, and one’s a prisoner of the Bureau of Prisons. Two prisoners.”
Murtagh, retired from the Justice Department for more than a year, had a hearty laugh about that. He had, of course, dealt with MacDonald whenever the need arose, but during the last twenty years of his career he had spent far more time on the Pan Am case. On the occasion of his retirement, Murtagh received a letter from the family of one of the Lockerbie victims. It read, in part, “You, Mr. Murtagh, are a truly magnificent example of a good and kind human being. … You brought humanity and kindness to a chaotic and confusing situation.”
In December 2011, at the Pan Am Flight 103 memorial service held each year at Arlington National Cemetery, Attorney General Eric Holder singled out Murtagh for praise.
Speaking to surviving relatives of the 270 victims of the bombing, Holder said:
Here, today, on this nation’s most hallowed ground, we remember and pay tribute to each of them. And this year we also honor … Brian Murtagh, the prosecutor who—for more than two decades—has led the fight to bring those responsible for this horrific crime to justice.
Throughout his career, Brian has demonstrated a deep commitment to integrity, to the highest ideals of our nation’s justice system, and to the aggressive pursuit of terrorist threats. His leadership, and his unparalleled dedication to this investigation, have been an inspiration to all of us.
It’s MacDonald, in fact, who suffers from obsession with Murtagh. As early as 1975, testifying before the grand jury, MacDonald lashed out, calling Murtagh a “creep” and “a little viper,” a “little guy who … doesn’t know any of the social amenities.”
During MacDonald’s trial in 1979, Bernie Segal gave an interview in which he said, “Murtagh is an anonymous, faceless little man who, in the outside world, would be of very little consequence to anyone’s life.” Back at the fraternity house in the evening, Segal and MacDonald threw darts at a picture of Murtagh that was taped to a wall. They seemed driven half-crazy by the fact that Murtagh was besting them in every courtroom confrontation.
In 1990, MacDonald’s lawyers launched what a federal judge termed “a vicious, but largely unsupported attack on the conduct, ethics and integrity of prosecutor Murtagh.” They accused him of intentional suppression of evidence and of having “orchestrated one of the cruelest charades in American legal history.”
Now, thirty-three years after the Raleigh jury had convicted MacDonald, Murtagh and I—arguably the two people on earth he most despised—would again confront him in a courtroom.
* * *
At 7:30 a.m. on Monday, September 17, the day the hearing began, an almost O.J.-like scrum of television cameras blocked the sidewalk outside the courthouse. Satellite trucks were pulled up to the curb or parked in a lot across the street. There was a greater media presence in Wilmington in 2012 than there had been in Raleigh in 1979, during MacDonald’s actual trial. Even the Los Angeles Times sent a reporter. The day before the hearing started, he wrote, “In federal court Monday in Wilmington, N.C., the case will play out
once again with all its lurid details.”
Well, not exactly. The only two witnesses to testify on Monday were Wade Smith and Jimmy Britt’s first wife. Smith said that Britt (who died in 2008) never could quite remember where he’d supposedly picked up Stoeckley to bring her to Raleigh back in 1970. First it was Charleston, then Greenville. Though Smith, a courtroom performer without peer, tried his best to paper over the holes in the Britt affidavit, on cross-examination Bruce exposed them to be big enough to drive an entire fleet of U.S. Marshals Service cars through. Smith also admitted that, during Segal’s interview with Stoeckley, the one at which I was present, “her words were not what we’d hoped.”
Britt’s first wife said Jimmy had told her he’d refused to put handcuffs on MacDonald after his conviction and that he didn’t like the NBC miniseries of Fatal Vision that was broadcast five years later.
That was what happened on Monday. Lurid details were in short supply.
What no one in the media wanted to acknowledge—because it sucked all the juice out of the story—was that there was no new evidence. Fox had convened this hearing as a means of demonstrating to the two Fourth Circuit judges the pointlessness of their instruction that the DNA evidence and the Britt affidavit be viewed through the prism of “the evidence as a whole.” Those who’d come expecting high drama—Errol Morris and his retinue among them—soon left.
Other than the fact that it took place in a courtroom, the hearing bore no resemblance to a trial. Nonetheless, Fox ordered that witnesses be sequestered. That meant they could not be spectators in court until after they’d testified. I was scheduled to be the final witness. Until I was called, I had to sit in the grand jury room, one flight up from the courtroom, under instructions to avoid media coverage of the hearing.
My wife, Nancy, who’d worked as a newspaper reporter and magazine editor, sat through the hearing, taking notes on my behalf. But John Bruce warned her not to share them with me or to tell me anything about anyone’s testimony, instructions that she followed much more scrupulously than I’d hoped.
Once I testified, the restrictions were lifted. Between Nancy’s notes and the exhibits filed by the defense and prosecution, I’ve been able to piece together what went on. It wasn’t much.
At the start, after even MacDonald’s lawyer admitted that “the Fourth Circuit’s order is a little bit confusing,” Fox said, “This is a brand-new venture, I guess, for all of us. Everything comes in, as I see it … because you don’t want to come back forty-two years later and do this again.”
Can anyone seriously argue that Jeffrey MacDonald has not been given his day in court? He’s been given years. He’s been given decades. And Fox intended to be sure that, by the time the hearing was over, no appellate court would ever again be able to suggest that MacDonald had not been given ample opportunity to avail himself of all his constitutional rights.
There may be no more graphic illustration of the hearing’s essential insignificance than the fact that three of MacDonald’s most high-profile lawyers—Barry Scheck, Alan Dershowitz, and Harvey Silverglate—were nowhere to be found. It was left to Gorden Widenhouse, of Chapel Hill, and Keith Williams, of Greenville, North Carolina, to represent MacDonald.
On Tuesday, those in attendance were treated to a further look at Jimmy Britt’s first failed marriage. There was a suggestion that he’d been in and out of alcohol rehab for years after his retirement. His ex-wife said their divorce had been ugly. He’d committed adultery. He tried to cheat her out of her share of his pension. He lied on his retirement form. He filed for bankruptcy in 2005 and may have made more false statements as he did so.
This was a witness called by MacDonald?
Tuesday also marked the debut in court of Helena Stoeckley’s long-lost brother, Eugene, who had celebrated his tenth birthday the night of the murders. He described how his mother, lying in a nursing home bed, blind and struggling for breath, had told him about Helena’s confession that she’d been involved in the murders. (Poor Mrs. Stoeckley seemed to have forgotten that in 1979 she’d told MacDonald’s defense team that her daughter was “a physical and mental wreck. She’s not even a human being anymore. You find her now, sure she’ll talk. She’ll always talk. But I’m telling you, she’s gonna talk all kinds of nonsense.”)
The nursing home testimony could be termed triple hearsay, once removed. It could never be admitted at a trial. But as a result of the Fourth Circuit’s directive, the Wilmington hearing was closer to a circus than to a trial.
Eugene was asked what he’d done with the information he’d received from his mother. Had he reported it to the FBI? No. Instead he’d gone on the Internet and located MacDonald’s wife’s website and he’d shared it with her. Lickety-split, Kathryn MacDonald (Jeffrey had married her while in prison in 2002), along with a lawyer and a notary public, had headed for the bedside of Mrs. Stoeckley. Kathryn MacDonald took notes, then the threesome typed up an affidavit on the nursing home’s computer, struggled to find a printer that worked, and, after a few hours, presented her with a signature page. With Eugene guiding her hand, she shakily signed. This, too, was apparently part of what the Fourth Circuit meant by “the evidence as a whole.”
Widenhouse also called Bernie Segal’s assistant from 1979, Wendy Rouder. Out of the hearing of the jury, Rouder had testified at trial about spending time with a distraught Stoeckley the weekend following her testimony. In 2005, Rouder gave MacDonald’s lawyers an affidavit in which she said that Stoeckley had told her she couldn’t tell the truth, because “the damned prosecutor will fry me.” Rouder mentioned nothing about this at the trial, yet she recalled it twenty-six years later. “I can’t explain why I didn’t remember it in 1979,” she told the court in Wilmington.
Tuesday’s last witness was a little old churchgoing lady with whom Stoeckley had lived in South Carolina for a few months until shortly before she died. She said Stoeckley had told her she was a wizard in an occult group and had gone to MacDonald’s home with the men who’d killed his wife and daughters.
“I prayed with Helena to receive the Lord,” the woman said. “She asked me many times to raise her son if something happened to her.” The woman did eventually take custody of the baby after he was found in Stoeckley’s apartment, lying under his crib next to the decaying corpse of his many-days-dead mother.
At the close of her testimony, the woman proclaimed, “I know that Dr. MacDonald is innocent just as sure as I sit here today!” On that note, the defense rested. That was the sum total of the startling new evidence that was supposed to free Jeffrey MacDonald, or at least win him a new trial.
On Wednesday, John Bruce demolished Jimmy Britt’s credibility. He introduced testimony and evidence that made it crystal clear that Britt had never gone to South Carolina to transport Stoeckley to Raleigh. She could not possibly have “confessed” to him during their long drive back from Charleston, or Greenville, because he hadn’t been with her.
Stoeckley, in fact, had not been in either Charleston or Greenville. Former FBI agent Frank Mills testified that he’d arrested her and taken her to the county jail in Pickens, South Carolina, more than twenty miles from Greenville. The next day, a deputy U.S. marshal named Vernoy Kennedy signed her out and drove her to the intersection of I-85 and I-77, in Charlotte, North Carolina. From there, a deputy U.S. marshal named Dennis Meehan, accompanied by his wife, who served as matron because a female prisoner was being transported, brought Stoeckley to Raleigh. Both Meehan and his (now ex-) wife testified that Stoeckley had never referred to the MacDonald case during the long drive. The only transportation Jimmy Britt provided was for the six blocks from the Wake County jail to the federal courthouse.
In a February 26, 2006, amendment to his second affidavit, Britt had also claimed that on the Sunday after her testimony, he’d taken Stoeckley to the Raleigh bus station, given her some money, and put her on a bus to Charleston. But Britt had invented that story, too, as other government witnesses established. Once she’d testified, S
toeckley was considered a defense witness, and federal marshals were no longer involved with her in any way.
On the stand, Britt’s supervisor in the U.S. Marshals Service called him “an attention-seeker.” Another marshal described him as a “very marginal employee, rather large in ego, rather small in veracity.” It went on. By the time Bruce was finished, there was so little left of Britt’s affidavit that you couldn’t have set fire to the paper it was written on with a blowtorch.
Errol Morris ties much of his argument to the credibility of Jimmy Britt. The late deputy marshal’s name is mentioned forty times in the index of Morris’s book, and at one point Morris writes, “The significance of Stoeckley’s testimony and the outcome of the trial itself depends on whom you believe: Blackburn or Britt.”
Setting aside the illogic of stating that “the outcome of the trial itself” could have depended on a statement not made until twenty-six years after the verdict, perhaps the one meaningful result of the Wilmington hearing was the introduction of uncontested proof that Britt either had been suffering from dementia at the time he spoke to Smith and Junkin in 2005, or that he was just a colossal liar.
Jim Blackburn then testified that not only had he not threatened Stoeckley, but he’d had no need to even consider such a tactic, because what she told him and Brian Murtagh during their interview with her was exactly what she told Bernie Segal: she hadn’t been there. She knew nothing. Blackburn also made it clear that Britt had not been present when he and Murtagh had interviewed Stoeckley. As a matter of practice, marshals do not sit in when prosecutors interview potential witnesses. That isn’t part of their job.
* * *
By the time I testified, on the fifth day of the hearing, the national media were long gone. As soon as I was sworn in and took my seat on the witness stand, I looked to my right, where MacDonald was sitting next to his lawyers.
Final Vision: The Last Word on Jeffrey MacDonald (Kindle Single) Page 6