He wore flip-flops, ankle shackles, and a khaki jumpsuit issued by the New Hanover, North Carolina, county jail. Now sixty-eight, he was stooped, faded, and stamped with the longtime prisoner’s air of furtiveness. He seemed insubstantial, shrunken, almost literally a shadow of his previous insouciant self. I looked at him repeatedly. But no matter how long I held my gaze, he would not look me in the eye.
I’d been subpoenaed largely because of a footnote in Fox’s 2008 decision.
Unbeknownst to me, the government had referred to Fatal Vision in one of its responses to a motion. Fox noted that according to the government,
McGinniss wrote that Stoeckley consistently denied during her interview by defense counsel having been present or having had anything to do with the murders. McGinniss reported that after telling Stoeckley she could not be prosecuted because the statute of limitations for the crime had expired, and after she nevertheless continued to insist that, “I can’t help you,” Segal said to Stoeckley, “You have it in your power to end it. Right now. Otherwise, Helena, I guarantee you: I am going to take you into court.”
Fox wrote, “While they are intriguing, Mr. McGinniss’s observations carry no weight and have no evidentiary value or legal import insofar as this court’s present analysis is concerned.”
I couldn’t have said it better myself. No matter how illuminating it may be, information contained in a book is insignificant in a court of law. Errol Morris claims that Fatal Vision has contributed to keeping MacDonald in prison all these years, but I doubt that Judge Fox, judges from the Fourth Circuit Court of Appeals, or justices of the United States Supreme Court would agree.
Now, however, because of the Fourth Circuit’s instruction that anything either side wanted to present should be admitted, Fatal Vision was about to become part of the record. John Bruce had me read, under oath—as he did later with the Eskatrol section—the portion of Fatal Vision that dealt with Segal’s futile attempts to persuade Stoeckley to confess. Thus, a book about the case became part of the case. There can be no better example of how far from what really mattered the decades of legal jigsawing had carried us all.
There were few surprises at the hearing, but Bruce had one for me. As I’d worked on Fatal Vision, I had available for reference a copy of the transcript of the 1979 trial. Bernie Segal had sent it to me. The most interesting volume was the one that contained the bench conferences—those murmured exchanges at the front of the room that neither jurors nor spectators are able to hear.
I’d never noticed that several pages were missing. Segal died last year, so I can’t ask him, but it seems apparent that Segal removed pages that reported what he’d told Dupree about the Stoeckley interview.
Bruce handed me those pages and had me read them aloud from the stand. I was astonished.
At a bench conference that took place with Stoeckley already on the stand on Friday, August 17, 1979, Segal told Dupree:
During the interviews with me and with other persons present, [Stoeckley] stated that when she looked at the [photograph from the crime scene] she had a recollection of standing over a body holding a candle, seeing a man’s body on the floor …
She also stated yesterday she remembered standing at the end of the sofa holding a candle. She also said when she saw the body of Kristen MacDonald—the one when she was clothed, with the baby bottle—that the picture looked familiar to her.
She also said when she was shown the photograph of Colette MacDonald … that the face in that picture looked familiar, except that the chin was broken and made it a little hard.
She also stated … that she was standing at the corner of Honeycutt, across from Melony Village. She has a recollection of standing there during the early morning hours of February 17, 1970. She further stated yesterday, and I intend to ask her now, that she has a recollection of standing outside the house looking at her hands and saying “My God, the blood; oh my God, the blood.”
She said that took place February 17, 1970. There are witnesses to each of these things. I must say, your Honor, there were persons present the entire time this [interview] took place.
When I finished reading this, Bruce asked me if anything Segal had said about the interview was true.
I said no.
Bruce asked me again if I’d been present for the Stoeckley interview.
“Absolutely,” I said. “Bernie wanted me to see him in all his glory. He thought this would be his big moment and he didn’t want me to miss it.”
He went through Segal’s claims to Dupree about Stoeckley’s statements again, asking me if Stoeckley had made each one. I said no. “If she had,” I said, “there would have been high fives. Champagne corks would have popped. This was their dream, this was their holy grail—to get Stoeckley to confess—but it just didn’t happen.”
Bruce asked me my view of what Segal had told Dupree.
“He was lying,” I said. “I don’t like to speak ill of the dead, but he’s standing in front of a federal judge just making stuff up.”
Then, because there were no rules, and because the Fourth Circuit appeared to want the sun and stars and all the planets included in “the evidence as a whole,” Bruce had me read from the section of Fatal Vision that quoted from the report of the psychiatrist and clinical psychologist who had examined and tested MacDonald during the trial.
The report said, in part, that MacDonald was “a man unhappily confused about his own masculinity” and that “he lacks a sense of guilt” and “seems bereft of a strong conscience.” It also said, “Parenthood for him may have been viewed as threatening and potentially destructive,” that he had “disdain for others with whom he differs,” and that he was “subject to respond with anger when his person is questioned, on whatever basis.” It concluded by saying, “Dr. MacDonald may well be viewed as a psychopath subject to violence under pressure … [He] is in need of continuous, consistent psychotherapeutic intervention.” That report had never been before the jury. Now it was part of “the evidence as a whole,” along with the Eskatrol notes and my detailed account of Segal’s futile interview of Stoeckley.
On cross-examination, MacDonald lawyer Keith Williams ranged far and wide. It was his job to try to make me look bad. I understood that. But without a jury present, I didn’t understand the point of the exercise, except to give MacDonald some satisfaction. The Fourth Circuit wasn’t going to award MacDonald a new trial on the basis of my answer to a question such as “When did you stop using the prosecutor, Mr. Murtagh, to interpret source material for your book?”
Or how about this exchange:
Q: “Is it fair to say that [on August 17] you sent out a Twitter message that said, ‘First e-book edition of Fatal Vision on sale today at Amazon, new print edition due out next week’?’”
A: “Yes. I sent that.”
That question, I think, epitomizes what a useless taffy pull the whole hearing was. Williams, who didn’t seem a bad sort, had also picked up Errol Morris’s nonsensical notion that I had first written Fatal Vision in a way that proclaimed MacDonald’s innocence but that I’d cynically turned the story around because I thought I could make more money saying he was guilty.
This is how Williams closed his cross-examination on Friday, September 21:
“One final question for you, sir: Would you agree that there is no one who has profited financially more off of this story than you?”
If I’d had my wits about me, I would have said Karl Malden, who portrayed MacDonald’s father-in-law, Freddy Kassab, in the NBC miniseries. Instead I said, “I can’t think of anyone who would, because no one’s done the work I’ve done.”
After that, I thought Nancy and I could go home. But Bruce said he wanted me back for re-direct on Monday morning. When you’re under subpoena, you can’t appeal. So Nancy and I spent the weekend in Wilmington, housed by the Justice Department in a motel.
Bright and early Monday morning, Bruce had me back on the stand.
“Mr. McGinniss,” he began, “o
n Friday you were asked on cross-examination about profit you had from your book. Do you recall that?”
“Yes, sir.”
“Would you have made just as much profit if you had proclaimed Jeffrey MacDonald’s innocence?”
“Far more,” I said. “The story would have been—the exciting story would be this poor man was falsely accused and then wrongfully convicted and here’s the story that proves he’s not guilty, the whole thing’s been a tragic mistake. That’s the story people really would have wanted to read.”
I concluded: “The story that I told was simply that a man was accused of a crime, he went on trial, he was convicted, and he’s guilty. That’s not a very exciting story. That’s just dog bites man. The other way is man bites dog.”
* * *
Other than the satisfaction I received from testifying truthfully to help finally bring the curtain down on the whole sorry spectacle of the MacDonald case, the best part of the week in Wilmington was reconnecting with Wade Smith.
Following MacDonald’s conviction in 1979, Smith and I had become close friends, even taking a hiking trip together in the Tetons. I understood that he had an attorney-client relationship with MacDonald, and I never put him on the spot by asking him what he really believed.
Over the years, however, we did talk about the case and the people caught up in it: about Jim Blackburn’s fall from grace in the 1990s and his subsequent rebuilding of his life, about Judge Dupree, whom Smith admired, and about Bernie Segal, whom he didn’t.
But never did Smith even hint to me that he knew Segal had lied to Dupree about Stoeckley. And Smith knew what had happened at the Stoeckley interview as well as I did. He must have nearly swallowed his tongue as he stood next to his co-counsel at the bench and heard Segal claim that Stoeckley had confessed anew the day before.
The bench conference transcript shown to me on the witness stand disclosed that, after Segal had finished presenting his list of fabrications, Dupree asked Blackburn what Stoeckley had said during the prosecution’s interview.
“None of those statements was made,” Blackburn said. Stoeckley had denied any knowledge of the murders and had said no to every question Blackburn asked about her presence at 544 Castle Drive. “It just went one right after the other,” he said. “I told Mr. Smith last night what she told us. I was under the impression to this very moment that what she told us was essentially what she told them.”
Not for the first time and not for the last in the MacDonald case, Smith found himself very far up a very deep creek with nothing more than a paper clip for a paddle.
Dupree looked at him. What was Smith to do? He couldn’t tell the judge that his co-counsel, Mr. Segal, had just told a series of lies. But as an officer of the court, neither could he lie himself.
“Judge,” he said, “here I think is where we are. Generally, she said to us the same thing, and that is, ‘I don’t remember.’ But in two or three or four instances—whatever the list would reveal—she says something which would give an interesting insight into her mind.”
Only Smith knew what, if anything, he meant by that. When he testified at the Wilmington hearing, Bruce asked him. Smith laughed and said, “I’ve puzzled and puzzled and puzzled—what could I have meant?”
Under oath, he testified that in Stoeckley’s interview with Segal, “Her words were not what we’d hoped. I did not hear Helena Stoeckley say useful things for us.” When Bruce asked if he could recall any specifics, he replied, “That’s lost in the mists of time.”
Later, Smith and his wife and Nancy and I had dinner at a Wilmington restaurant. At one point, I asked him how Segal could possibly have told such flagrant lies in court.
He declined to address that question specifically. But he offered an observation, distilled from his near half-century of practicing law, about criminal lawyers and how passion can lead them astray. “When a case becomes a cause,” he said, “you’re in trouble.”
On September 24, after I finished my re-direct and re-cross, the defense called Jerry Leonard, the Raleigh lawyer whom Dupree had appointed to represent Stoeckley during her time as a witness. Because Stoeckley was long dead, Fox released Leonard from attorney-client privilege, enabling to him testify about his recollection of what she had told him in 1979.
It was more of the same.
“She said … that she did not remember anything about the evening,” Leonard recalled. “Later on she said, ‘What would you do if I were there?’ ” Still later, Leonard said, Stoeckley told him that “she didn’t participate in the actual murders, but she was there.” She said she was part of a cult whose members were mad at MacDonald because he was mean to drug abusers, so they went to his home to confront him and “things got out of hand.” Et cetera. (Please take a number, Mr. Leonard.)
And that was the end of the hearing. Fox wrote in 2008 that such a hearing would be “a disgraceful waste of judicial and Government resources.” He was right.
He said it would probably take six weeks for a full transcript to be prepared. After that, MacDonald would have sixty days to submit a final brief. The government would have sixty days to respond. Thus, Fox will not rule anew on MacDonald’s motions until at least the spring of 2013. Later next year, MacDonald will appeal to the Fourth Circuit once again. The government will respond. The Fourth Circuit panel will undoubtedly call for oral argument. A decision might not come before 2014. The losing side will request a rehearing en banc. Should that be granted, new briefs will be filed and new oral arguments made. After the full court rules—or after it denies the petition for rehearing—the losing side will file a cert petition with the Supreme Court. Even assuming that’s denied, it could easily be 2016 at the earliest before the case of United States of America v. Jeffrey R. MacDonald is finally closed.
That will be forty-six years after the murders. MacDonald will be seventy-two.
I hope he’s still alive and forced to recognize that he has finally lost: that his decades of lies have come to naught.
I hope Brian Murtagh lives long enough to enjoy the final triumph for which he’s worked so hard for so long: not his triumph over MacDonald, but the triumph of justice over deceit.
Murtagh, MacDonald, and I were young men when this began. Now we’re old. The case has been a presence in our lives for forty years. But at least we’ve been able to live our lives. That’s a privilege Jeffrey MacDonald denied his twenty-five-year-old wife, his five-year-old daughter, his two-year-old daughter, and his unborn son when he annihilated them all in an explosion of bloody rage on February 17, 1970.
In his closing argument at trial, Jim Blackburn asked the jurors to “think for a moment of the last minutes of Colette, Kimberly, and Kristen, when they realized that they were going to die and they realized for the first and the last time who it was who was going to make them die.”
He also said, “If in the future you should say a prayer, say one for them. If in the future you should light a candle, light one for them. If in the future you should cry a tear, cry one for them.”
It’s still not too late to do that.
About the Author
Joe McGinniss is the author of twelve books, including the political classic The Selling of the President, about the marketing of Richard Nixon during the 1968 campaign, and a bestselling trilogy of true crime books: Fatal Vision, Blind Faith, and Cruel Doubt. He is also the author of the Byliner Serial 15 Gothic Street, which follows events in a county courthouse in small-town New England.
Read more of Joe McGinniss’s best stories at Byliner.com
Photograph by Nancy Doherty
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Final Vision: The Last Word on Jeffrey MacDonald (Kindle Single) Page 7