Fatal Vision

by Joe McGinniss

  "Sure," said Lowenstein. "Well, okay, we're clear then.

  And it's a relief to know that we arrived at the same thing, even if not at the same time." Lowenstein did not return MacDonald's call.

  Two days later, Jeffrey MacDonald called Kassab. It was the first time the two men had spoken since MacDonald had moved to California. Kassab's recording device was working imperfectly, but it did pick up the sound of a raised voice, and MacDonald's voice was raised frequently, particularly when Kassab mentioned his awareness of the fact that MacDonald had enjoyed sexual relations in his BOQ room during the Article 32 hearing.

  "You believe that, Fred?" MacDonald shouted. "Because the CID told you it was true?"

  "Absolutely."

  "Is that what you're telling me?!" There was a quality of raw fury in MacDonald's voice that Kassab had never heard before.

  "I'm telling you, Jeff. I've got a copy here of an affidavit from the girl."

  "Oh, Fred. I'm really disgusted. You'll believe anything. You'll grasp at any straw. You could have affidavits from fourteen people. Do you know how many telephone calls I got while I was at Fort Bragg, Fred? I got them from Minnesota and Chicago and Los Angeles and everywhere else on earth. Every person in the world called me. If you think that affidavit means anything, you're crazy! I have no idea who you're talking about, Freddy, or what you're talking about, but if you're telling me I slept with a girl in my room every night that's just the most absurd, insane comment—I hope you put that out, Fred!" MacDonald screamed. "I hope you put that out sometime! I just hope you bring that out! Because if you have the—the audacity to believe something like that, then you deserve everything you get!"

  "Jeff, I talked to the girl."

  "I don't care, Freddy! I talk to a lot of people! I can get an affidavit from anyone, saying almost anything, if you put a little pressure and money in the right place.

  "You talked to the girl," MacDonald continued, his voice dripping with scorn. "What the hell does that mean?! I got marriage proposals while I was being held in my room, the supposed murderer of my family. Now what kind of people do you think there are in the world?

  "You know, for a year you tell me that you have undying backing for me, and what not. And all of a sudden I turn around and while I'm still trying to recover—"

  "Do you think for one minute," Kassab interrupted, "that you hurt more than Mildred does?"

  "Ah, yeah! I think I do, Fred. You know, I don't have to take this anymore! If you think I'm going to bare my soul to people like you after what I have gone through, you've got another think coming. But you ought to make sure of your facts first, because your facts are wrong. You're hurting innocent people. You're making yourself into a martyr, Freddy. You just won't let go."

  "Time will tell, Jeff," Kassab said.

  "Time will tell!" MacDonald shouted. "But you ought to have a little more compassion for the one who's suffered the most!"

  The next day—March 22, 1973—aware, perhaps, that his telephone call had further alienated a person who was capable of doing him serious harm, MacDonald wrote, for the last time, to Mildred Kassab:

  I am sorry to be writing to you under such distressing circumstances (again)—needless to say the recent press, TV and radio inquiries have again ruined any chance I had for some small measure of privacy and/or sanity. Knowing the source of the publicity (NY Daily News, of all cheap places, via Freddy of course) only adds to my distress.

  I don't wish to re-discuss the whole case again and again—I live it all the time—but please let me say several things to you—they are true, I mean them, and I hope you reflect upon them.

  The first is that I was a good husband and father. Colette and I shared a love that was truly great—few people ever have the fun and contentment we had together.

  The second thing is that I did not commit any crimes (or sins)—that is, I did not have any part in the murders on Fort Bragg. Believe what you will, but that is the only truth—I loved Colette, Kim and Kris with all my heart. The garbage and crap that keeps coming up does not mean that I was involved in the killings.

  There are some confusing aspects to the case—none are as confused as me when you ask, "Why?"—but please don't decide that because there are confusing things that I must be guilty.

  I did tell Fred some things after I left the Army that were not 100% true—it (these things) were partly true—I magnified them to (I guess) help my own feelings of inadequacy and also I hoped to isolate myself with those comments and allow my mental status to clear.

  Unfortunately, Fred has misread the importance of those comments—he is striking out in any direction, willing to hurt anyone & everyone with no thought of what is important and what is not important.

  I tried to find solutions, could not, and also discovered that no matter what happened Colette was not coming back. So I moved out here and began working for a living, giving up the career Colette and I had hoped for at Yale.

  Mildred—I was going to go on & on, but I don't think it is any use. The letter doesn't read well—I guess I never do communicate well, except in medicine.

  I truly hope those absurd tales Fred told me on the phone about "girls" are daydreams—they certainly are not true facts—I never lied to you about extra-marital affairs—I never had an affair, but I did see (date, sleep with) a very rare girl away from home—the rest is complete garbage. No one else ever mattered to me except Colette.

  I was going to write to Fred tonight also but it seems extraneous. My mind is really in a turmoil again. Please take care of yourself. I do love you—I know I don't exhibit it well but even my mother complains of that.

  I love Fred also—I do feel extremely tense and anxious and more than mildly hurt about him showing transcripts and letters and phone calls to any creep who will listen—we all express our grief in different ways, and I think Fred feels I'm wrong because I don't show it exactly like him.

  If there was a legitimate point to be gained, fine, but the record is clear now—the 2nd (CID again, if you remember) investigation nicely dovetailed with the first fiasco, except it made it even clearer that I was not involved in the crimes.

  Do I now have to spend another year in purgatory for 50 or 100 thousand dollars, to finally be left with memories of my departed family? What price do I have to pay to be left to exist?

  Try to tell Fred that I'm in agony also. I just don't think shouting at the press will solve anything at this stage. I hope your health is good.

  Love, Jeff

  The hopes of Freddy Kassab and the fears of Jeffrey MacDonald notwithstanding, the Justice Department was not about to convene a grand jury. The only action that was taken in April of 1973 was that the entire case file was sent back to Raleigh, North Carolina, for review by the new U.S. Attorney for the Eastern District, Thomas MacNamara.

  Kassab returned to his typewriter and for the next nine months peppered Henry Petersen, Carl Belcher, and the Attorney General himself with letters, refusing to be placated by replies which assured him that work was continuing but that the case was a difficult one. Finally, on January 10, 1974, Carl Belcher wrote to Kassab. He said:

  We have completed an independent review of the investigatory files in this case and have concluded that the evidence currently available is insufficient to warrant prosecution at this time. However, I have requested the Criminal Investigation Command of the United States Army to conduct additional investigation in an effort to develop further evidence. We will reassess our position regarding the feasibility of prosecution upon the receipt and evaluation of any additional evidence.

  I hope you appreciate that the Department of Justice shares your interest in this case and that we seek only to serve the interests of justice.

  Thus, a year and a half after having received the CID's report of its year-long reinvestigation of a case that had originally been investigated in the late winter and spring of 1970, the Department of Justice in 1974 was saying that it had decided to send the case back to the Army
for further investigation.

  By February 25, 1974, William Saxbe had become Attorney General of the United States. Freddy Kassab wrote him a letter. After reviewing the history of the case, Kassab stated:

  The decision has been made by Mr. Petersen not to prosecute. He has advised me that he has referred the case back to the U.S. Army CID Command "for further investigation." A completely illegal move in my estimation, since the one and only suspect is a civilian.

  I have asked Mr. Petersen under what legal authority he is using the U.S. Army to investigate a civilian murder case. Instead of answering my inquiry, he has referred it to the U.S. Army, "for consideration."

  Mr. Petersen is attempting to pass the buck in this case. However, there is no way that the U.S. Army can or will legally continue to investigate a civilian. Nor will I allow this situation to continue. I intend to pursue this matter into the courts.

  I have not asked the Dept. of Justice to prosecute someone they do not think is guilty. I have not asked them to prosecute someone without evidence, nor have I asked that they proceed with a case where a legitimate indictment is not a certainty.

  I have been frustrated at every turn, however I still seek a legal solution and will continue to do so until I feel that no more can be done by one man against as formidable an entity as the Justice Dept. I swear to you that I will not allow the murderer of my daughter and two granddaughters to get away with those brutal murders.

  If you have any doubts about my intentions, I suggest you consult the U.S. Army's CID command and Judge Advocate General's office for confirmation of the fact that I usually do what I say I am going to do. This case was closed once before for all intents and purposes in October of 1970 and at that time I paid a personal visit to the office of every Congressman and Senator in this country with the result that the case was reopened. I can do this again if it becomes necessary. . . .

  On March 4, Kassab wrote to the commanding officer of the U.S. Army Criminal Investigation Division, asking him to put in writing a statement to the effect that, "in the opinion of your command it was Dr. Jeffrey MacDonald who committed the murders," and that "in the opinion of your legal department there exists sufficient evidence to show probable cause sufficient for an indictment and prosecution."

  The Army—if not the Justice Department—shared Kassab's sense of frustration and was most willing to cooperate. Within two weeks, an Army legal officer wrote to say that, "Taken as a whole, the evidence makes it most unlikely that there were intruders at 544 Castle Drive, Fort Bragg, on the night of 16-17 February, 1970. The investigation also determined that the statements of several persons in the Fayetteville area who purported to have direct knowledge of the crime were absolutely groundless. An exhaustive analysis of the facts and the relevant law leads us to conclude that the investigation establishes a prima facie case."

  On April 30, 1974—the eve of the fourth anniversary of the Army's original accusation against MacDonald—Freddy and Mildred Kassab, armed with this letter, and with a sworn affidavit regarding the facts of the case from Peter Kearns, appeared in the Raleigh, North Carolina, chambers of the Honorable Algernon ‘I. Butler, chief judge of the federal district court for the Eastern District of North Carolina, to file a citizens' complaint charging their former son-in-law with three counts of murder.

  The Kassabs asked that Judge Butler obtain copies of Reams's 3,000-page summary of the reinvestigation, which had recommended prosecution in June of 1972, and of a memorandum written by U.S. Attorney Thomas MacNamara (and ignored by his superiors in Washington), which had recommended prosecution in July of 1973.

  They asked further that if, on the basis of his study of these documents, the judge found probable cause to believe that MacDonald had committed the crimes, he either issue a warrant for the doctor's arrest or order the convening of a grand jury, even without the consent of the Justice Department.

  Judge Butler did not accept the complaint for filing, but said he would take the matter under consideration and agreed to "submit appropriate inquiries to the United States Attorney and Department of Justice to determine their attitude with respect to the institution and prosecution of the charges."

  Fearing that, despite the publicity generated by the filing of the complaint (MACDONALD ACCUSED AGAIN said the headline in Newsday), matters might once again grind to a halt, Kassab also sent a thirteen-page plea to all members of the House and Senate Judiciary Committees, in which he informed them of the events (and nonevents) of the preceding four years, and urged that they, too, seek from the Justice Department—at the very least—a coherent justification for its refusal to act.

  The chairman of the House Judiciary Committee was Rep. Peter Rodino, who, the year before, had chaired the committee's pre-impeachment inquiry into the Watergate affair that had ultimately led to the resignation of Richard Nixon.

  Assistant Attorney General Henry Petersen was even more intimately acquainted with Rodino than he was with Freddy Kassab and had no desire for further struggles—public or private— with Rodino's committee. Thus, the combination of a personal expression of interest by Rodino and a formal inquiry from the chief judge of a federal district court persuaded Petersen that the MacDonald case could not yet safely be laid to rest.

  On June 21, Petersen wrote to Judge Butler to say that the department was "reconsidering" the case and had, in fact, assigned it for review to one of its "most experienced trial attorneys."

  Petersen further stated that the department would present the case to a grand jury if, in the opinion of this "most experienced'' trial attorney, the evidence appeared strong enough "to survive a motion for judgment of acquittal" at the close of the government's case in a jury trial.

  The buck, in other words, that had been passed for two years within the Justice Department had finally come to rest on someone's desk.

  The desk was that of Victor Woerheide, a sixty-two-year-old Justice Department attorney whose career had encompassed prosecutions ranging from that of Axis Sally during World War II to the recent indictment and conviction of former Illinois Governor Otto Kerner on bribery and conspiracy charges.

  Woerheide functioned primarily as a troubleshooter within the Justice Department, taking on cases of unusual complexity or significance, generally after other department attorneys had failed to make sufficient headway.

  Within the department hierarchy, he was responsible directly to the Attorney General himself, rather than to the chief of any section. In the MacDonald case, the authority vested in him by Henry Petersen was absolute. If, in Woerheide's opinion, the case was worthy of prosecution, it would be prosecuted. If, on the other hand, he did not feel it was of sufficient merit, then, as one department attorney later put it, "Freddy Kassab could have set himself on fire in the department courtyard and Henry Petersen wouldn't have stood up to look out the window."

  For Freddy and Mildred Kassab, then, Victor Woerheide was a one-man court of last resort.

  On a fine, sunny morning in early June, a mail cart laden with satchels, each of which was stuffed with thousands of pieces of paper—transcripts, witness statements, lab reports, photographs, diagrams, memorandums—was wheeled into Victor Woerheide's office.

  He was a large man, six feet two inches tall and weighing more than 200 pounds. "And looking," an associate said, "as if he'd been that height and weight since he was about seven years old." He smoked cigars, he had silver gray hair which fell continually down over his forehead, and he had a very red face which seemed locked into a perpetual scowl.

  Woerheide, in fact, suffered from a painful angina condition and until the MacDonald case had been presented to him—or, more precisely, thrust upon him—he had been giving serious consideration, in the wake of his triumph in the Kerner prosecution, to retiring from the Justice Department in order to divide his remaining years between his horse farm in Virginia and his villa on the Costa del Sol.

  Approximately two weeks after Woerheide had begun his review of the case, he received a phone ca
ll from a twenty-seven-year-old military attorney named Brian Murtagh, who was attached to the CID command in Washington and who had been involved in the processing of paperwork relating to the MacDonald case since the completion of the CID reinvestigation in December of 1971.

  As he had processed, Murtagh had read; and as he had read, he had formed the opinion that Jeffrey MacDonald was indeed guilty of the crimes with which the Army had charged him.

  Once he had come to that conclusion, Murtagh found it difficult to accept that Justice Department attorneys—who had made it clear to him that they were equally convinced of MacDonald's guilt—could decide, for what they claimed were pragmatic reasons, that prosecution should not even be attempted.

  "It seemed to me," Murtagh would say years later, "that the gravity of the crime was such that it was the duty of anybody who believed MacDonald guilty—and there was no one I talked to who didn't—to take all available steps to attempt to bring him to trial, no matter how unlikely conviction seemed. As far as I was concerned, that was the social contract. That was the duty of the people who held those positions." The holders of those positions, however, did not appear to agree.

  The core of the problem, as Murtagh perceived it, was that no one with the power to make a decision had ever directly exposed himself to the minutiae of the case—the details of the physical evidence which, Murtagh believed, so clearly marked Jeffrey MacDonald as the killer.

  Always, an assistant would be instructed to review the massive file, and he in turn would delegate to another assistant the task of doing the actual reading and that would lead to the compilation of a condensed report based upon which the first assistant would write a memorandum which would then be presented to the official who had first been asked to consider the question.