It had been a careful analysis of the physical evidence and the physical evidence alone which had persuaded Blackburn, when he first was assigned to the case, that MacDonald was guilty beyond a reasonable doubt. And if that evidence—all of which he had managed to introduce, and most of which, despite Bernie Segal's attempts to taint and dilute it, still seemed to him to stand strong and true—had been sufficient to convince him that this case could be won, then that physical evidence, all by itself, ought to be enough to convince a jury.
The more that the jury's attention wandered from it, the more likelihood there might be that reasonable doubt might creep in. So, in the end, after many nights of lying awake next to his own wife, with his own son, Jeffrey, and infant daughter in nearby rooms, Jim Blackburn decided that when the moment for cross-examination came he would not attempt a character assassination. He was not seeking to convict MacDonald of perjury, or adultery, or of having told lies to Freddy Kassab: he was seeking to convict him of murder.
Despite all warnings—and even with his entire future hanging in the balance—Jeffrey MacDonald was unable to control the caustic, bitter strain that ran so deep within him. Even Jim Blackburn's softest, most inoffensive questions—and Blackburn's manner, in contrast to Victor Woerheide's booming intimidation of five years earlier sometimes bordered on the almost deferential— met with a cutting, acerbic response. This prickly, touchy, hostile witness—so easily irritated, so quick to flash to the point of anger—bore little resemblance to the broken, saddened, grieving survivor who had brought tears to the jurors' eyes the day before. Despite having had nine and a half years to prepare for the occasion, MacDonald seemingly could not prevent himself from adopting the one mode of behavior likely to do him most harm.
"Now I take it this is the pajama top you wore to bed that night?" Jim Blackburn asked, holding up the garment—torn and punctured, its bloodstains now faded to a rusty brown.
"I only have your say-so."
'is it not the pajama top that you wore?"
"I have no knowledge."
"Have you ever seen it before?"
"Sure."
"Were you ever shown this pajama top by the grand jury?" "I believe I was."
"Were you asked then whether or not this was the same one?"
"I was asked questions similar to yours just now."
"Well, were you ever asked whether or not this was the pajama top that you wore that night?"
"I am sure I was. I don't recall the question, but it must have been asked of me sometime."
"Well, I wasn't there. What was your answer then?"
"Assuming, you know, the normal chain of custody, that is probably my pajama top."
"I take it when you went to bed the night of the 16th and wore this blue pajama top, it was not ripped?"
"I don't believe so."
"Certainly not in this condition?"
"No."
"Was there any blood on it when you went to bed that night?"
"Not that I know of."
"Were any puncture holes in it?"
"Not that I know of."
"Do you know where it was ripped?"
"No."
"Did you rip it?" "I may have."
"Did you ever hear any ripping sounds?" "No, I do not recall ever hearing a ripping sound." "How did these holes get in this pajama top?" "From the assailants."
"Where was it when it got holes in it from the assailants?" -"My recollection is that it had to have been around my wrists."
"What were you doing with it?" "I was fending off blows—trying to get my hands out." "You don't know whether it was torn at that time?" "I have no idea."
"You don't know whether it was pulled over your head?" "I do not."
"But you were using this around your wrists or hands to fend off the blows of the intruders, is that correct?" "That's correct." "Was it between your hands?"
"Part of it must have been between my hands because my hands were not touching each other."
"And all forty-eight puncture holes got in here, in this pajama top, at that time?"
"That's what I would have to presume, yes."
"Can you tell us why those are circular, round holes and not tearing holes?"
"Can I tell you that?"
"Yes, sir."
"I was fending off blows that were coming straight at me, and I was pushing out against them. I see no reason why the fabric should be torn and not have circular holes. It was not at all like the demonstration that you showed the jury."
"Doctor MacDonald, you did not receive any icepick wounds in your hands or wrists or lower parts of your arms, did you?"
"None that I recall. Why I did not I cannot say."
"Now, when you say you took the pajama off of your wrists and threw it down, you don't recall where you threw it?"
"That is correct."
"You did not hear any ripping sounds at that time. Is that correct?"
"Mr. Blackburn, I was not listening for ripping sounds. I saw my wife covered with blood."
"I understand that, and I appreciate that. What I am asking is, did you hear any ripping sounds?"
"No," MacDonald said, with a very definite edge to his voice, "I do not recall hearing ripping sounds."
"You saw the knife in your wife's chest, right?"
"That is correct."
"And you pulled it out, right?"
"That is correct."
"Did you wipe the knife off?"
"I have absolutely no remembrance of that."
"Do you know whether the knife was bloody when you pulled it out of your wife's chest?"
"I have absolutely no remembrance. I saw it in my wife's chest and I took it out."
"So it could have been bloody or it could not have been bloody?"
"Well, I would assume that having been in her chest it was bloody."
"Well, how was it that no blood or very little blood was found on the knife?" "I have no idea."
"Doctor MacDonald, can you tell me, sir, how two threads— two threads microscopically identical to threads in your pajama top—got on the club outside the door of the utility room area, when you stated that you never went outside that house?"
"I cannot."
"Did Colette bleed on your pajama top before it was torn?" "Not to my knowledge."
"Did you struggle with Colette and did she tear your pajama top in the V-neck part of it?" "She did not."
"Did you struggle with Colette in the pajama top?" "I never struggled with Colette." "Did you wear your surgical gloves that night?" "I did not."
"Why did you put your pajama top on top of Colette's chest?" "I guess it was an attempt to try to treat my wife—cover my wife."
"For possible shock?"
"It was sort of an attempt to do something, I guess. I can't really explain why I put it on her."
"That night, did you ever touch the bedsheet and the bedspread depicted in that photograph behind you?"
"I have no recollection at all."
"Are you saying you did or you didn't?"
"I am saying neither."
"Dr. MacDonald, if the jury should find from the evidence that there is a fabric impression or contact print matching the right cuff of your blue pajama top on it, do you have any explanation for that?"
"If the jury should find?"
"Uh-huh."
"No."
"If the jury should find from the evidence that there is a fabric impression or contact print of handprints and the left shoulder on that sheet, do you have any explanation for that?"
"It is hard to answer, because the evidence that you claim to be evidence has been disproven. You want me to make a supposition based on something that—"
"Well, suppose the jury disagrees with you, and does find that it has not been disproven, and finds what I said—do you have any explanation for that?"
"No."
"Suppose the jury finds from the evidence that in that bedspread there is a seam thread matching your blue pajama t
op entwined around a hair with blood on its shaft matching that of your wife Colette—do you have any explanation for that?"
"No."
"Suppose the jury should find from the evidence that pieces of rubber or latex are found in that bundle of bedding on the floor. Do you have any explanation for that?"
"I have none."
"Suppose the jury should find from the evidence that the word PIG on the headboard over where your wife slept was written in Type A blood with a gloved hand. Do you have an explanation for that?"
"I have no explanation for that."
"Doctor MacDonald, should the jury find from the evidence that on debris from the sheet of the bed in your master bedroom there are fifteen purple cotton sewing threads microscopically identical to those in your blue pajama top and seven blue polyester cotton yarns identical to the yarns of the blue pajama top— assuming that the jury should find evidence to be true, do you have any explanation for that?"
At this, Bernie Segal stood to object. "Your honor," he said, "I do not believe the defendant has to explain the government's case for them. I object to that. It is not proper to make a continued line of questioning on this. I object to the question. I suggest that it rises to the point of suggesting that the defendant has some burden to prove away facts that the government has raised in the first instance."
"I will overrule the objection," Judge Dupree said.
"May I ask your honor then," Segal retorted, "to give an appropriate instruction in regard as to what burden the defendant does or does not have? I would request that at this time."
"I will say to the jury," Dupree said, turning toward them, "as you have heard from time to time and as you heard during the course of your selection, the burden is always on the government to prove each essential element of the crime charged in the indictment by evidence convincing the jury beyond a reasonable doubt. That is the rule of law under which all criminal cases are tried in this court or courts of this country, and it is in full force and effect from the inception of the trial right on through to the final verdict."
The judge then permitted Blackburn to continue his cross-examination. "Doctor MacDonald, would you like for me to repeat the question?" Blackburn said.
"No."
"What is your answer?"
"Is this the sheet that Mr. Ivory scooped up and stuffed in the plastic bag?" "No, sir."
"Which sheet are we talking about?" "The one that was found on the bed." "I have no answer for that."
"Assume, Doctor MacDonald—or suppose—that the jury should find from the evidence that in the master bedroom as a whole, there were sixty or more purple cotton sewing threads found which microscopically matched your blue pajama top and eighteen blue polyester cotton yarns which microscopically matched the pajama top and one blue-black sewing thread which matched your pajama top. Assume for a moment that the jury should find that evidence to be true, do you have, sir, any explanation for that?"
"With the understanding that they have not matched those fibers and threads against the pajama bottoms, no, I don't have any explanation for it."
"Assume for a moment that the jury should find from the evidence that no purple threads or blue polyester cotton yarns matching any of those found in your pajama top were found in the living room, do you have any explanation for that?"
"It would lead me to feel that the shirt was pulled over my head rather than ripped from around my back."
"Do you remember it being pulled over your head?" "No; neither do I remember it being torn." "Okay, when you left the master bedroom and Colette, you went then to Kimberly's room, is that correct?" "That is correct."
"Were you wearing your pajama top at this particular time?" "Not that I recall."
"What did you do; did you just sort of lean over and give her mouth-to-mouth, or check her?" "I don't specifically recall." "You didn't get on the bed with her?" "Get on the bed with her?" "Yes, sir." "No."
"Well, suppose the jury should find from the evidence that on Kimberly's bed on top of the covers, and also inside under the covers and on the pillow closest to the wall that there were fourteen purple cotton sewing threads, microscopically identical to your pajama top; and approximately five blue polyester cotton yarns, microscopically identical to your pajama top—suppose the jury should find all of that from the evidence. Do you have any explanation for that?"
"Not unless they came from my arms. I can envision threads hanging on to my arm hairs and dropping off at some later time. That seems like a rational explanation."
"Suppose the jury should find, Doctor MacDonald, that Type AB blood, the same as that of your daughter Kimberly, was found on the blue pajama top; and that you were not wearing that pajama top when you went to see Kimberly. Do you have, sir, any explanation for that?"
"Pure conjecture."
"Is that your answer?"
"Pure conjecture that any of us can make."
"Well, is that—do I take it then that any answer that you give would just be, as you said, conjecture on your part?"
"That is correct."
"With respect to Kristen's room, suppose the jury should find from the evidence that there is a purple cotton sewing thread and a blue polyester yarn microscopically matching that of your blue pajama top on the bed in her room, do you have any explanation for that?"
"It's pure conjecture, again."
"Doctor MacDonald, suppose the jury would find from the evidence that splinters matching the club on the table over there were found in Kimberly's room and Kristen's room, do you have any explanation for that?"
"Do/?"
"Yes, sir."
"Nothing more than the obvious."
"Which is that they were struck in there with the club or someone struck them with the club?" "Correct."
"With respect to Kristen's room, supposing the jury should find from the evidence that blood—Type A blood, Colette's blood type—is found on the wall over the bed in Kristen's room, and also that Type A blood is found, through direct bleeding, on the top sheet in Kristen's bed. Do you understand what I have said so far?"
"Sort of."
"Let me rephrase it. Suppose the jury should find from the evidence that Type A blood—Colette's blood type—is found on the top sheet of Kristen's bed in massive amounts and also on the wall over the side of the bed, splattered; do you, sir, have any explanation for that?"
"Making the very large assumption that the CID could type blood, no."
"Do you know your wife's blood type?"
"A."
"Do you know Kimberly's blood type?"
"We have been told here many times."
"Did you know it in 1970?"
"No."
"Kristen's?"
"No, I don't believe so. I don't believe I knew any of ours."
"Doctor MacDonald, suppose the jury should find from the evidence that all the blood on the floor in Kristen's room, with the exception of the footprint, is that of Type O—Kristen's type—and suppose further that the jury should find from the evidence that that is your footprint exiting that room, and suppose the jury should find further that that footprint is made in Type A blood—Colette's blood type. Do you have any explanation?"
"Well, I would probably agree that that was my footprint since I was there. As far as the blood-typing, again assuming the CID accurately typed the blood, I am not—you know—I have no explanation for the blood-typing and patterns, assuming they are correct."
* * *
At the lunch recess, Bernie Segal and Wade Smith worked with MacDonald as if they were seconds tending to a prizefighter between rounds.
"Your general tone is very good," Segal assured him. "Just don't piss on the CID any more. And watch the facial stuff—it's getting bad. I know you're getting tired of playing Mr. Nice with him, but you've got to be more inert: less feeling revealed. You can't start with nonverbal communication because the jury will be very alert for that."
"Blackburn has lost you," Smith said. "This afternoon, he is goi
ng to be a desperate man. He will know he's only got an hour and a half to win the case. You're ahead. Way ahead."
"Just like in a fight," Segal said. "You are ahead on points, be like Muhammad Ali—keep backpedaling. You're in round eleven of fifteen. Just take him the last four. Yesterday, we poured our hearts out. Our blood is all over the floor. Today, we simply want you weary after nine and a half years. No anger, no sarcasm, but no more tears: after yesterday, they would seem anticlimactic."
"Doctor MacDonald," Jim Blackburn resumed quietly, "when we broke for lunch, as I recall, I had just asked you, and I think you answered the question about the footprint and the blood in Kristen's room. Now, again, sir, should the jury find from the evidence that that is your footprint as you indicated it probably is and that the blood in that footprint is Type A blood, can you tell us at all where you got that Type A blood from?"
"I have no idea." MacDonald's manner was openly hostile.
"Doctor MacDonald, did you take the bedspread and that sheet from the master bedroom off the floor, place Colette on the bedspread, step in blood on that bedspread, and pick Colette up and carry her out of that room?''
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