Jeffrey MacDonald hearing turns on ‘new’ old evidence

Unidentified hair, witness claims have been known

09/21/2012 12:06 AM

09/21/2012 12:24 AM

WILMINGTON Thirty-two years after the murder trial of Jeffrey MacDonald, the closing arguments of defense attorney Bernie Segal were read aloud in front of a judge.

MacDonald is back in federal court in this port city, making his latest appeal for freedom.

Sentenced in 1979 to three consecutive terms of life in prison, MacDonald has insisted since his arrest that intruders were responsible for the murders of his pregnant wife and two daughters, Kimberly, 5, and Kristen, 2.

He contends that DNA from three hairs tested six years ago and a statement from a retired U.S. marshal about possible prosecutorial misconduct should win him at least a new trial.

If jurors knew that DNA from three hairs found at the crime scene – one on a bedspread, another under the body of a lifeless Colette MacDonald and another under a fingernail of the youngest daughter – were not a match to any of the MacDonald family, MacDonald’s defense team contends their verdict might have been different.

Though the DNA testing on the hairs was done in 2006, and those findings are part of the reason for the hearing in a Wilmington courtroom this week, prosecutor Leslie Cooley reminded the judge that theories being offered by the defense as new evidence to support their claims for a new trial have been raised many times over the decades.

Segal, who is now deceased, told jurors in his closing argument in 1979 that hairs not matching the MacDonald family had been found in the house. Segal suggested that those hairs, unidentified fingerprints and candle wax that did not match any of the candles found in the home bolstered MacDonald’s claims that a woman wearing a floppy hat, holding a lit candle and chanting “acid is groovy, kill the pigs” was inside his home with three men when the murders occurred.

Hearing echoes trial

Though the purpose of the hearing this week was not to be a retrial, there were times that it seemed so.

Cooley held up crime scene photos that showed a much different time – the cars, fashions and home furnishings popular more than four decades ago.

He introduced Segal’s words Thursday through a witness for the prosecution – William Ivory, a former Army crime-scene investigator who photographed the Fort Bragg apartment where MacDonald was found injured and his family slaughtered.

Ivory explained in detail what he thought was significant about the photographs of the crime scene. He highlighted blood stains, blood splatter, the outlines of the bodies and things he thought unusual.

Though MacDonald described a struggle inside the living room that knocked him out for a brief time, Ivory showed a sideboard in the same room where Valentine cards were still upright, on display.

The much-talked-about hobby horse in the bedroom of one of the MacDonald girls was shown in numerous photographs, upright, not listing to one side on broken springs.

Ivory also testified about a polygraph given to Greg Mitchell, Helena Stoeckley’s boyfriend in 1970. Mitchell, who died the year before Stoeckley, also had been a “person of interest” the case, Ivory said.

Stoeckley, a drug-addled woman who died in 1983, gave many accounts during the 14 years between the murders and her death of possibly being inside the MacDonald home that night. In some of them, she mentioned the toy horse – which was shown in a newspaper photograph the day after the murders, and also having a recurring nightmare in which she held a candle dripping blood, not wax.

Other times, Stoeckley would deny being at the MacDonald house or say that she could not recall what she was doing because she was under the influence of mescaline and could recall nothing after that.

When Mitchell agreed to sit for a polygraph test, the administrator of the test asked whether he had murdered the MacDonalds, had any part in the crimes or knew who did. Mitchell said during the test that he did not, and the polygraph administrator concluded he was telling the truth.

Mitchell further stated during his polygraph test that Stoeckley did not commit the crimes, that she was with a girlfriend that night.

The burden of proof

MacDonald’s burden during this hearing is high: He must show a constitutional violation and clear and compelling evidence of “his actual innocence.”

In addition to the hairs that don’t match anyone in his immediate family, MacDonald also contends that statements from the late Jimmy Britt, a retired U.S. marshal, who came forward in 2005 with a claim of prosecutorial misconduct, and a statement from Stoeckley’s mother, who also has died, bolster his contentions that intruders committed the murders.

The retired marshal

Britt, in sworn statements that were picked apart by prosecutors this week, contended Stoeckley not only told him that she was present when the murders occurred, she also told Jim Blackburn, one of the key prosecutors on the case.

Britt claimed to have driven to South Carolina during the middle of the 1979 trial to pick up Stoeckley under order of the judge and transport her to Raleigh so the defense could call her as a witness.

But prosecutors this past week called retired marshals and FBI agents who testified that others transported Stoeckley to Raleigh.

They also countered Britt’s claims that he was present for an interview that prosecutors had with Stoeckley before she was called to the witness stand by the defense team.

Stoeckley, billed during the trial as a key defense-team witness, testified in 1979 that she was not at the MacDonald house and knew nothing about the murders.

Britt contended in his statements of 2005 that he heard Jim Blackburn, a lead prosecutor on the case, threaten to charge her with murder if she testified that she was there and saw others commit the killings.

Blackburn, who has been in legal trouble himself since the trial, and Jack Craven, another prosecutor from that case who also has suffered his own legal troubles, testified this week that Britt was not present for the prosecution’s pretrial interview with Stoeckley.

But as prosecutors tried to raise questions about Britt’s character this week, the defense team raised questions about the character of two of the four prosecutors present for that interview.

More witnesses to come

As the prosecution moves closer to wrapping its side of the hearing, Joe McGinniss, author of “Fatal Vision,” the best-selling book about the case, remains on the list of witnesses still to be called.

McGinniss was embedded with the defense during the trial. His book, which ultimately concluded guilt for MacDonald, was the subject of a lawsuit by the federal inmate.

MacDonald claimed that McGinniss lied to him, saying he believed he was innocent when he did not, to persuade the former Army doctor to continue to provide unfettered access for his book.

MacDonald was awarded a settlement from the book publisher’s insurance company, which ultimately was divided between MacDonald’s mother and former mother-in-law.

Judge James Fox also informed lawyers late Thursday that he would reconsider his ruling on whether a lawyer who represented Stoeckley could waive his attorney-client privilege and be called to testify about what the late drug-abuser told him in legal confidence.

Jerry Leonard, a Raleigh lawyer, provided Fox with details from his discussion with Stoeckley to review in private.

Fox said he would review the statement, consider whether it had any pertinence to the current proceedings and decide whether the defense team could call Leonard as a witness.

The hearing is expected to continue Friday, however, with prosecutors questioning an FBI agent who interviewed Stoeckley after private investigators for MacDonald came forth with claims that she admitted to taking part in the murders.

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