"But in any case I had this new relief, called my mom from the same—I was standing by the, you know, this phone outdoors when I called Bernie, hung up, dialed my mom, then talked to someone at the hospital, and that was all I could get at the time. Got home to California and there was this big celebration back there that, you know, it was over for me."
The Justice Department, however, did not consider it over. Now that the great wheel of bureaucracy finally had been set in motion, its tendency was to continue rolling forward. In March, government lawyers asked the full Fourth Circuit Court to rehear the case. Six weeks later, the court split 3-to-3 on that request, thereby effectively denying it and leaving the Justice Department only one further option: a petition to the U.S. Supreme Court.
Such a petition was filed in June. A full year passed with no response.
Through that year, Jeffrey MacDonald's new romance continued to ripen. "Bobbi," he said, "was, of course, a whole different person than either Colette or Joy. But while it's clear that she had a very different approach to life and personality and style than Joy, she was not that different from Colette. And I wonder just how much—I don't think my initial infatuation with Bobbi had anything to do with Colette.
"I think that Bobbi was an alarmingly good-looking woman, really very chic and sophisticated-looking. Very attractive, wore the right clothes, didn't wear bras, had a nice body, knew how to dress, knew how to travel, was, is, extremely witty, very intelligent, easy to be with. That was all very attractive right from the beginning.
"But I think as we started seeing each other frequently, and, you know, falling in love and spending a couple of years together basically—the good times and the bad times—she got closer to Colette. By that I mean that Bobbi, I think in my mind, created some confusion over who I was in love with: was I in love with Bobbi or was I in love with, you know, an attempt to re-create Colette?"
On June 20, 1977, the Supreme Court announced that it would accept the Jeffrey MacDonald case for consideration. Briefs were filed in the fall and oral argument took place in January of 1978.
On May 1, in an 8-to-0 decision which did not deal with the merits of MacDonald's specific claim, but which was consistent with its previous rulings barring pretrial appeal in criminal cases, the Supreme Court declared that an appellate court cannot assume jurisdiction over a speedy trial claim prior to trial. To permit such a procedure, the Supreme Court said, would only "exacerbate pretrial delay."
Faced, once again, with the likelihood of having to stand trial, MacDonald began to encounter difficulties in his relationship with Bobbi.
"I found that the closer and the deeper the case became—in other words, once the Supreme Court turned down the Fourth Circuit victory for me and now it looked like the case would clearly go to trial, and I was having to do recollections again for Bernie and for case preparation and read all the Article 32 files again and get my files in order—I found that reliving the past and the years of my marriage and Kimmy and Kris were again vibrant and back in my mind day and night.
"And I was having this terrible role confusion in which Bobbi was becoming Colette. If it happened once it happened fifty times: I turned and was just ready to say 'Colette,' when Bobbi was there, and I actually had to think to say 'Bobbi.' I remember being terrified, the many nights lying in bed or at a movie and turning suddenly to her and being frightened that I almost called her Colette.
"Besides, Bobbi was beginning to—this was, of course, two years into our relationship now—Bobbi was beginning to need more, just as the old cycle always occurs. Joy had needed more at two and a half or three years; now Bobbi needed more. Seven days a week was what she wanted. We had a nice relationship on a five-day-a-week basis, well, four-day-a-week basis, but it wasn't enough.
"There was this unease in Bobbi all the time and constant picking and a need to reinforce and be told that she was loved. Even stronger than Joy, to be honest; she's a more insecure person. She has a lot of great strengths, but on this particular point she was very insecure.
"She was making visible demands, both verbally and with body language, and we got into this absolute identical situation that Joy and I had gotten into, where we both loved each other—it wasn't this, again, tumultuous A-plus sensual love that Joy and I had, with quick ups and downs, and lots of sensual makings-up, and quick trips everywhere, and sort of living on the pleasure principle—it was a different kind of thing, more structured and more orderly, partially because Bobbi liked it that way, but certainly because my life was much more businesslike and professional than it had been, and more dedicated to work, plus paying Bernie and getting ready for the case.
"But in any case, I found that I could devote less emotional effort to Bobbi at this time than I could even to Joy before. And our relationship took on this same six-month downward spiral that Joy and I had undergone, and almost for the same reason: I couldn't give up enough time and verbal effort and emotional commitment to truly, you know, to be truly dedicated to that person. I just couldn't do it, it wasn't in me, I didn't have the strength, I had too many other things happening that I felt were important. And eventually we split."
In October of 1978, the Fourth Circuit Court of Appeals upheld Judge Dupree's denial of the double jeopardy claim, and, in March of 1979, the Supreme Court refused MacDonald's request that it review that decision, thereby clearing the way for trial.
Jeffrey MacDonald flew east during the second week of July. He might not have been on the "emotional high" that had been the goal of the friends who had arranged the fund-raising dinner and disco party in his behalf, but he was, at least, accompanied by Sheree Sizelove, who had replaced Bobbi in his affections the previous fall.
"Bobbi was either already gone or she was in the midst of leaving, or something like that," he said, "and I walked into a restaurant one day for my normal brunch about nine or ten in the morning, and Sheree walked through with a girlfriend of hers by the name of Laura, another super-fox.
"They both had on their, you know, California ‘I-shirts and short shorts or something, and they walked through and I asked, 'Who the hell was that incredible blonde that just walked by?'
"About two weeks later, I saw her again in the same restaurant, and this time the cook introduced us. And Sheree told me later that she fell in love as we met. I batted my eyes once and she was gone. She was twenty at the time, and I of course thought this was a lark, and took her out to take out a gorgeous blonde, basically. And we eventually had this relationship.
"She grew up in a lifestyle very different than the one I did, sort of a spoiled California kid without any real goals or direction or ability to work hard, or really think too much, other than maybe another trip to Europe, or, you know, a good party
somewhere. By the same token, she's a super-good person with really a good heart and soul: warm, beautiful, fun to be with."
On that second weekend of July 1979, Jeff and Sheree stayed at the Park Lane Hotel in New York City. They went for a horse-and-buggy ride through Central Park. They ate a lavish dinner at Maxwell's Plum. They saw a baseball game at Yankee Stadium. Then, when the weekend was over, Sheree flew back to California, and Jeffrey MacDonald flew to Raleigh, alone, to stand trial for the murder of his wife and children—murders that had been committed almost nine and a half years before.
2
In early June, Bernie Segal had written Jeffrey MacDonald a letter.
Dear Jeff:
I am a little concerned about your wardrobe for the trial. The most important matter is for you (1) not to convey a "southern California image," (too much sun tan, polyester and beachy colors); (2) that you not appear to be "too casual" about the whole matter (the world needs to see you looking somber, serious, burdened and even concerned about this trial); and (3) that you do appear to be (at least as to your looks) truthful, reliable and responsible. ...
Segal was also concerned about the jury. At a cost of $15,000, he employed a Duke University psychology professor to assemble a
demographic profile of the "ideal juror." The professor's staff made more than nine hundred random phone calls', asking respondents such general questions as whether they believed people in military service were more likely to commit violent crimes than civilians, whether they felt doctors made too much money, and whether they accepted the notion that a person who has an extramarital affair is not necessarily a bad person.
In reference to the MacDonald case specifically, those contacted were asked whether they had heard of it (81 percent had) and whether they had formed an opinion about his guilt (6 percent said he was "certainly guilty"; 29 percent said "probably guilty"; 33 percent said "probably not guilty"; 5 percent said "certainly not guilty"; and 27 percent said they did not know).
The respondents were also asked a series of demographic questions pertaining to age, race, marital status, length of residence in the county, educational background, political affiliation, and regularity of church attendance.
A subsequent analysis of the demographic and attitudinal responses disclosed the combinations most closely associated with a predisposition toward belief in innocence. The professor had then weighted each of the factors, much as a horse player will do when analyzing a field of thoroughbreds, and had devised a mathematical formula that would enable Segal to evaluate each prospective juror quickly on the basis of responses to questions asked during the selection process.
The surprising result of the survey, the professor from Duke said, on the Friday before jury selection was to begin, was that the ideal jury would be composed mainly of conservative whites over the age of thirty-five—in most cases, just the kind of jury sought by the prosecution.
"It's true," the professor conceded in the temporary office Segal had acquired in downtown Raleigh. "What we want is the kind of typical 'good citizen' that the government is probably going to go after. They won't be able to figure out what we're doing. In fact, they may think we've gone a little crazy. You know, normally you see an American flag in the lapel, you get rid of the guy. Here, that's just the type we're looking for."
Jeffrey MacDonald, who was at the meeting, shook his head. "I hope you're as good as your reputation," he said, "because everything you're saying goes against my gut feeling."
"I know, I know," the professor said, "and I know that it's your life, not mine. But I'll tell you what," he continued, suddenly smiling. "If I'm wrong, I won't serve any time for you, but I promise I'll work for free on your appeal."
Jeffrey MacDonald glared at the man from Duke. Bernie Segal quickly interceded, employing his most soothing tone. "Jeff, Jeff, relax. There's not going to be any appeal. We're going to pick a jury that will not only acquit you but will come back and award punitive damages."
"I hope you're right," MacDonald said, getting up to leave the office. "Because, frankly, this scares the hell out of me."
Once the client had departed, the professor, who himself could be described as young and liberal, was able to speak with greater candor. "What Jeff doesn't understand," he said, gesturing toward his pile of statistical analysis, "is that it's my friends we want most to get rid of. They all think he's guilty as hell."
* * *
MacDonald was living in a small room at one end of the second floor of the Kappa Alpha fraternity house on the campus of North Carolina State University. The house was occupied also by MacDonald's mother, by Bernie Segal, and by five other lawyers and legal assistants (including Mike Malley, the ex-Princeton roommate, now a corporate attorney in Phoenix, who had taken a leave of absence to work without pay in his old friend's behalf), as well as by four fraternity brothers who were remaining on campus for the summer. Segal felt that Jeff would have a better chance for privacy at the college than he would in a downtown motel.
The housing at Kappa Alpha had been arranged by Wade Smith, the local counsel whom Segal had retained to assist him. An accomplished bluegrass musician who had been, in the late 1950s, a starting halfback on the University of North Carolina football team, Smith was a senior partner of the respected Raleigh firm of Tharrington, Smith and Hargrove, and the same attorney who had been recommended to MacDonald by Allard Lowenstein in 1971, when Lowenstein had become convinced that MacDonald was not a victim of military injustice but, rather, a man in need of a good criminal lawyer.
A native of the small North Carolina town of Albemarle, Wade Smith was a sturdy, gracious, exuberant man and the father of two bright and attractive teenaged daughters who were just a bit older than Kimberly and Kristen MacDonald would have been had they lived. At forty-two—having recently retired undefeated from state politics after two terms in the legislature— Smith was, perhaps, the most renowned practitioner of his craft in the state. He also possessed, in uncommonly full measure, a combination of kindness and wit. "Wade's the golden boy," Bernie Segal had said. "He's the best of what they have down here."
It was neither Segal nor Smith, however, who was on Jeffrey MacDonald's mind when he reached the Kappa Alpha house late Friday afternoon. It was the jury selection man from Duke.
MacDonald did not speak about it right away. He changed into a pair of red gym shorts and—despite the heat and humidity— went out to run five miles around the North Carolina State University track. When he returned, he lifted weights for twenty minutes. Then he showered and put on a pair of white slacks and a T-shirt that said, "California Breast Stroking Team—Stroker." Then he opened a can of beer and looked up at the wall of the Kappa Alpha dining room, where a picture of the fraternity's most distinguished graduate member, J. Edgar Hoover, was hanging.
"What worries me," MacDonald said, "is that by our figures he would be the ideal juror."
On Saturday morning, July 14, Jeffrey MacDonald and his mother drove twenty-five miles to Chapel Hill to be interviewed by a new psychiatrist Bernie Segal had hired.
Robert Sadoff, the Philadelphia psychiatrist who had examined MacDonald in 1970 and who had testified at both the Article 32 hearing and the grand jury proceedings, was prepared to do so again, but Segal, a Jew from the urban Northeast, did not want to go before a Southern jury—however carefully chosen it might be—with only a Jewish psychiatrist from the urban Northeast to explain that Jeffrey MacDonald could not possibly have killed his wife and children. He wanted a man from North Carolina to say the same thing. In Chapel Hill, at the University of North Carolina, he had located one with impeccable credentials. And the psychiatrist seemed willing to testify, pending his interview with the defendent and the defendant's mother.
Segal himself went on Saturday to the chambers of Judge Franklin Dupree to argue a series of pretrial motions. His relationship with the judge was not good. Since 1975, in fact, when Dupree had rejected Segal's bid to have the indictment dismissed on constitutional grounds and then had denied his request for a change of venue, he had considered the judge an enemy.
"He is, in brief, an asshole," Segal said at breakfast at the Kappa Alpha house on Saturday morning. "He is the pits. A despicably low individual. The problem is that he has all the proper mannerisms for a judge and manages to communicate a totally spurious aura of fairness. He may be a dummy, in other words, but he doesn't have a style that makes him easy to hate."
Accompanied by Wade Smith, Segal returned from the judge's chambers to the downtown office at 4 P.M. The temperature was 92 degrees and the humidity was 90 percent. It had been that way in Raleigh for a week.
Segal took off his suit jacket (dark pinstripes), loosened his tie, lit a cigar, opened a can of diet soda, and stared glumly and silently out the window.
Wade Smith took a seat next to the desk.
"How did it go?" asked Mike Malley, who had been working in the office all day.
"Well, we won a few things," Smith said. "Nothing that would gladden anyone's heart, but it didn't go nearly as badly as it could have. I think he's beginning to understand that we're not bad guys. We didn't gain an awful lot on some points, but we did manage to get his attention. I had the feeling that the ice was melting just a bit. I believe he
's starting to come around."
Segal, wreathed in cigar smoke, his feet on his desk, continued to stare out the window.
"It was not a day to feel elated about," Smith continued, managing a smile, "or even greatly encouraged by. But neither should we feel discouraged."
Bernie Segal put his feet down, removed the cigar from his mouth, and swung slowly around in his chair. "Actually," he said, "it was a disaster. We didn't get the sweat from his armpits today."
Judge Dupree had agreed that the jury could remain unsequestered and that prospective jurors could be questioned individually and not in groups—a point vital to the selection technique Segal intended to employ—but since the prosecution had not opposed either of these motions, Segal did not consider the judge's granting them to be a victory.
There had been, on the other hand, nothing ambiguous about Dupree's ruling on the motion that the defense be provided with a free copy of the daily trial transcript—something which otherwise would cost $1,000 per day. He had denied it. And when Segal had argued that his client could not afford to pay for daily transcript—while the prosecution, backed by a limitless, taxpayer-funded expense account, of course could—the judge had replied that Dr. MacDonald did not strike him as an indigent defendant, and that, in fact, he had recently received a newspaper clipping from California describing a "disco party" designed to raise funds, presumably for just such a purpose as this.
Fatal Vision Page 56