Taking the Stand

by Alan Dershowitz

  The jury understood—even if the prosecutors and Pat Buchanan did not—the differences between love and hate, between a self-willed, voluntary death and an involuntary death imposed by others. After weeks of trial, it took the jury only a few hours to acquit Peter Rosier of all criminal liability. The prosecution had lost all credibility by asking the jury to treat Dr. Rosier as if he were the functional equivalent of a gangland killer. Had the prosecution charged Dr. Rosier with assisting the suicide of another—which is a crime under Florida law70—it might have had a better shot at a conviction. But by overcharging him with first-degree murder, the prosecution made it difficult for the jury to take its case as anything but a vendetta. This practice of overcharging is common among some elected prosecutors.71

  One important role the jury plays is to serve as the conscience of the community and as the commonsense moderator of harsh general statutes. This jury, which included several older people who themselves had living wills, decided that what Peter had done was not murder, even if the strict letter of the law did not authorize him to help his wife choose the time and manner of her imminent death.

  THE SCIENCE OF ELICITING FALSE CONFESSIONS: THE CASE OF JONATHAN DOODY

  Another notorious murder case involved the dark science of eliciting confessions from suspects.

  In 1991, Jonathan Doody, the son of a Thai mother and an American soldier, was accused of the mass murder of nine Buddhist monks and nuns in Arizona. The victims were placed in a circle on the floor of a Buddhist shrine and systematically shot in the head, apparently by a group of armed robbers, who took several hundred dollars from their charity boxes. It was a horrendous crime, even worse than the multiple murders committed by Gary Tison and Randy Greenawalt in the same state thirteen years earlier. The difference was that everyone knew who murdered the Lyons family in cold blood, while the police were stymied as to the perpetrators of this mass murder. Originally, a motorcycle gang was suspected. After a lengthy interrogation, four of them confessed, but it soon became clear to the police that they had been pressured into making false confessions, and they were freed.

  Doody, who was seventeen and in high school at the time, was then arrested and subjected to a thirteen-hour interrogation. The tactics used against Doody were eerily similar to those that had elicited the false confessions from the motorcycle gang members. The police began by giving Doody his Miranda warnings: You have the right to counsel; you have the right to remain silent; and anything you say can and will be used against you in the court.72 They then proceeded, gradually, to “de-Mirandize” him, by taking back everything they had originally said! You have a right to an attorney “if you were involved in [the murders]”; anything you “tell us” is “gonna stay right here” and not be used “in court”; and “you just have to open up”—that is, confess—and we will keep you here until you do. Finally, the exhausted seventeen-year-old confessed to being involved with the motorcycle gang—which the police knew was untrue—and to participating in the killings. Based largely on this confession, he was convicted and sentenced to life imprisonment.

  I was asked by a Buddhist monk to argue his appeal. He told me he was certain that Jonathan was not involved in the killing of his fellow monks. He gave me a tiny golden Buddha to keep with me when I worked on the appeal, assuring me that it would help render justice. I took the Buddha, but insisted on conducting an extensive investigation. The murder scene was near an air base, and I learned that Russia was selling some of the Soviet Union’s old satellite photographs of the United States. I bought the photographs for the location of the murder, in the hope that perhaps they might show evidence that people other than Doody were responsible for the crime. Unfortunately, the sky had been overcast that day and the photographs were useless. We would have to limit ourselves to making arguments based on the record of the trial, with an emphasis on how the police had elicited the confession from Doody. I did extensive research on the “science”—or “art”—of eliciting confessions from reluctant suspects. I learned how interrogators place objects from the crime scene in view of the suspect, how they suggest answers, how they create an atmosphere of intimidation and omniscience, and how they contrive to turn the Miranda warnings to their own advantage.

  I had long been interested in coercive interrogation, having written a paper on false confessions in law school. I had also drafted Justice Goldberg’s majority opinion in the Escobedo case,73 which had laid the foundation for the Miranda rule. And as a professor I had taught and written about self-incrimination, torture, and related subjects.74 When I listened to the hours of the recorded interrogation, I immediately suspected that Doody’s confession was false.

  I argued the initial appeal, along with my brother Nathan’s law firm, in 1996. The Arizona Supreme Court affirmed the conviction.75 My brother’s partner, Victoria Eiger, then took prime responsibility for preparing a federal writ of habeas corpus. My brother and I worked closely with her. I was convinced that the precedent established by allowing such a questionable confession to serve as the basis for a murder conviction was dangerous and inconsistent with the constitutional privilege against self-incrimination. I also believed that the decision upholding Doody’s conviction was part of a larger trend attacking or ignoring the progress that had been made by the Warren court.76 Among its most significant achievements were the rules limiting the power of rogue policemen to employ backroom tactics—including the notorious “third degree”—to elicit confessions. The lower court decisions in the Doody case threatened to legitimate such backroom tactics. It was important to challenge this trend. It was also crucial to leave no stone unturned in trying to secure Jonathan Doody’s freedom.

  We decided to appeal the denial of habeas corpus to a panel of the United States Court of Appeals for the Ninth Circuit, which reversed Doody’s conviction in a decision that ruled his confession involuntary and ordered him to be freed, unless the state granted him a new trial.77 The state then appealed the reversal to the entire Ninth Circuit, which set the case down for argument before twelve judges. They also ruled in Doody’s favor, by a vote of 9–3.78 Still the case was not over. The state sought a writ of certiorari from the Supreme Court, which remanded the case back to the Ninth Circuit for reconsideration in light of a recent Supreme Court decision.79 The Ninth Circuit reconsidered and once again threw out Doody’s conviction on the ground that the confession was involuntary.80 Again the state sought review by the Supreme Court. This time their petition was denied,81 and Doody’s conviction was finally and definitively reversed, after almost twenty years of litigation. But the case was still not over.

  The State of Arizona is now planning to retry him.82 Bail has been set at $5 million,83 which is, of course, impossible for the Doody family, which has no money, to raise.

  If justice delayed is justice denied, then Jonathan Doody has surely been denied justice. He has been in prison for nearly twenty years. The thorough decisions of the United States Court of Appeals have all been in his favor, but he remains in jail for a horrible mass murder of which he is now presumed innocent and which he may not have committed.

  If Doody is retried, his confession will not be admissible, because, thanks to the decisions rendered by the Ninth Circuit, the law now prohibits the kind of tactics used by the police. The dangerous trend reflected by the lower court decisions in this case has been halted, at least for now.

  THE SUPPRESSION OF SCIENCE: THE CASE OF JEFFREY MACDONALD

  A case in which science has not yet produced a victory—or, in my view, justice—is the forty-year-old whodunit involving the murder of the family of Jeffrey MacDonald. Science could perhaps provide a definitive answer to this highly publicized case, but so far the doors of the courtroom have been shut to newly discovered scientific evidence and evidence that was deliberately suppressed by the prosecution. The courts in this case have placed the alleged need for “finality” above the search for truth. But history and science know no finality. Nor should the law, especially when a possibl
y innocent defendant remains convicted of a crime that science could prove he may not have committed.

  I had followed the Jeffrey MacDonald case in the media from its grisly inception on February 17, 1970, when the wounded Green Beret doctor told authorities that his pregnant wife, Colette, and his daughters, Kimberley, five, and Kristen, two, had been murdered by drug-crazed intruders. Like most Americans, I had my doubts about his story. It seemed conveniently modeled on the notorious Manson murders that had occurred just months earlier. I knew that the statistics showed that wives are more likely to be killed by husbands than by strangers. I wondered why, if there had been intruders, they had left behind no hard evidence—no fibers, hairs, or fingerprints. My doubts were confirmed by reading Joe McGinniss’s bestseller Fatal Vision,84 which concluded that MacDonald was indeed guilty, and by seeing the TV movie,85 which was even more persuasive of his guilt.

  While I was on a visit to Terminal Island Federal Prison in California to confer with another inmate, a graying prisoner introduced himself to me. He was Jeffrey MacDonald, and he asked if he could have five minutes of my time to show me some documents. I agreed. What I learned that day—and afterward—convinced me that I had to try to help him.

  In one of the most dramatic scenes in the TV movie, investigators dig up the graves of the victims. The federal government’s chief lawyer (played by Andy Griffith) explains to their grieving stepfather and their grandfather Freddy Kassab (played by Karl Malden) why the bodies must be exhumed:

  We’ve got to know if the hair found in Colette’s hand was her own, Jeff’s, the kids’ … [Freddie Kassab interjects] … or someone with a floppy hat.86

  At the trial, the prosecution’s case relied heavily on the claim that the blond hair found in the murdered Colette MacDonald’s hand was her own, and not that of an intruder with a floppy hat, who Jeffrey MacDonald claimed had been there that night. It had already been found not to match Jeffrey MacDonald’s hair. Thus, if it did not match Colette’s own hair or the hair of the children, that finding would lend support to MacDonald’s claim that there had been intruders—including a woman with long, blond hair who was wearing a floppy hat and boots—in his home on the night of the attack. It would also indicate that at least one of these intruders had come in contact with Colette.

  A woman named Helena Stoeckley had told police and others that she and three friends had been in the MacDonald house on the night of the murders and that her friends, and not Jeffrey, had committed the crimes. Though Stoeckley’s word alone may not have been worth very much—she was a drug addict—she provided some details, which tended to corroborate her story and the story Jeffrey told. She described a broken rocking horse like one found in Kristen’s bedroom. At the time of the crime, she had owned a floppy hat, black clothing, and a long blond wig, all of which corresponded with MacDonald’s description. And a woman fitting that description had been seen by a military policeman near the MacDonald home shortly after the crime.

  But the single hair in Colette’s hand turned out to have come from her own head, thus undercutting MacDonald’s intruder theory. The government investigators reported that they had found no other physical evidence—no hairs, no fibers, no skin, no blood—that could not be traced to the inhabitants of the MacDonald house.

  The prosecution could therefore argue to the jury that Jeffrey MacDonald was lying—because if there had been intruders, they surely would have left some evidence behind. An old adage says that “absence of evidence is evidence of absence.” Applied to this case, the prosecution argued that the absence of evidence left behind by intruders was evidence of the absence of intruders. It was a persuasive argument.

  Moreover, at the trial Helena Stoeckley claimed to have amnesia as to her whereabouts on the night of the murders, despite her previously claimed recollection that she had been in the house. The defense was surprised by Stoeckley’s sudden inability to remember what she had previously described in such detail, but they could not effectively challenge her claim of amnesia, because they had no basis for suggesting that she had been pressured to forget what she actually remembered having done—namely participating in the murder of the MacDonald family.

  But then, in a shocking turn of events, Jeffrey MacDonald’s legal team discovered that, before the trial, the government had in its possession handwritten lab notes indicating that investigators had discovered long, blond wig hairs at the scene of the crime that did not match anything in the MacDonald household. This evidence was already in the government’s secret files before the graves of the victims were disturbed.

  Nor was this all the prosecution had in its secret files. The handwritten lab notes confirmed the presence of black wool fibers on the murder weapon used against Colette, and around her mouth. These fibers did not match any clothing belonging to Jeffrey or to anyone else in the MacDonald household. (Helena Stoeckley often wore black clothing.)

  In addition, in the bedclothes of each victim, government investigators found other human hairs that did not belong to any of the victims or to Jeffrey. But these hairs were never tested against Stoeckley or any members of her group.

  These lab notes were powerful evidence that an intruder wearing a long blond wig and black wool clothing was at the murder scene on the night of the murders. They certainly undercut the prosecution’s “absence of evidence” argument. But Jeffrey MacDonald’s lawyers had not been aware of the notes. Had they been, the entire trial would have unfolded differently.

  For example, Helena Stoeckley testified to the jury that she could not remember where she had been on the night of the murders. MacDonald’s attorneys tried to introduce the testimony of six witnesses—including a police officer—to whom she had previously admitted that she was in the MacDonald house with her friends that night. Since testimony about Stoeckley’s prior admissions would constitute “hearsay”—that is, testimony by one witness about what another witness had said outside the courtroom—the judge ruled that the jury could hear about Stoeckley’s hearsay admissions only if corroborating evidence showed that they were trustworthy.

  The judge—who was also unaware of the handwritten lab notes—ruled that there was no physical evidence that corroborated Stoeckley’s admissions; therefore, they were not trustworthy. Had he been aware of this corroborating evidence, he would have been obligated to allow the hearsay admissions into evidence, and the jury would have heard that Stoeckley had confessed to the murder and that her confession was corroborated by hard, scientific evidence. But because this evidence was deliberately suppressed by prosecutors, the jury never was presented with this alternative answer to “who done it.”

  Moreover, in 2005, the former deputy marshal Jim Britt, who was in charge of escorting Helena Stoeckley to the courtroom, came forward and told MacDonald’s lawyer the following:

  That he personally witnessed Helena Stoeckley state to James Blackburn [the prosecutor] that she and others were present in the MacDonald home on the night of the MacDonald murders and that they had gone there to acquire drugs; Jim Britt further avers that he witnessed and heard James Blackburn, upon hearing this, directly threaten Helena Stoeckley, telling her that if she so testified in court he would indict her for first-degree murder.

  This threat caused Stoeckley to claim on the witness stand that she had amnesia as to her whereabouts from midnight until 5 A.M. the morning of the MacDonald murders—the precise time frame during which the crimes occurred. “James Blackburn never disclosed to the court or defense counsel what Helena Stoeckley had admitted to him in Jim Britt’s presence. On the contrary, Blackburn, at a critical juncture in the trial, advised the court that Stoeckley, when he interviewed her, denied having any knowledge of the MacDonald family, the MacDonald home, or involvement in the MacDonald murders. Blackburn even went so far as to elicit from Stoeckley, through leading questions before the jury, testimony that was contrary to what she had told him during his interview of her the day before in the presence of Jim Britt.”87

  This was unethi
cal behavior by a federal prosecutor, bordering on criminal, since it essentially suborned the witness (induced her to commit perjury). (Blackburn has since been disbarred for misconduct unrelated to this matter.)88

  These dramatic revelations finally came to light because of Dr. Jeffrey MacDonald’s search for evidence of his own innocence, which he has protested since the beginning of his case. Over many years, he and his lawyers filed requests under the Freedom of Information Act, seeking access to government documents on the case. Slowly, they pieced together the amazing scientific and evidentiary story that the prosecutor kept from the jury.

  It is a story that raises the disturbing question of why the government would suppress such critical evidence. It is impossible to know the mind-set of the prosecutors in the case, especially those whose responsibility was to see that the defense received any evidence in the government’s file that could help MacDonald’s case. We do, however, know that the chief prosecutor was aware of the contents of the lab notes, since he wrote a memo to a legal assistant asking him whether “the detailed data of a lab report; as distinguished from the conclusions of the report, [must] be disclosed [to the defense].”89 This question is significant, because the “detailed data” refers to the blond wig hair, the black wool, and the human hairs, which were described in the handwritten lab notes but somehow not mentioned in the lab’s final typed report.

  Brian Murtagh, the chief prosecutor, has refused comment, except for a cryptic statement that “if there were fibers useful to the defense, MacDonald’s original trial lawyers should have found them” among the crates of raw evidence to which they had access. Talk about needles in haystacks!