Wednesday, October 12, 2016

Fatal Indeed

Jeffrey MacDonald turns 73 today. Many people believe he is one of the most sadistic murderers in American history. Others believe he is an innocent man condemned to spend his life behind bars for crimes he tried to prevent. When it comes to him, there is no in between.

The killings for which he remains in prison were committed in the winter of 1970, eleven months before I was born. Like many people, my original understanding of them (and him) was formed by watching the NBC miniseries Fatal Vision in 1984.

The miniseries was based on a book of the same name by Joe McGinniss. It starred Gary Cole as MacDonald and Karl Malden as his father-in-law, Alfred "Freddy" Kassab. For two nights I remained riveted to our TV and became transfixed by the notion that a father and husband could be so evil as to butcher his family and then spend years hoodwinking people into believing he was innocent.

But did he really kill them? Or is he innocent, just like he has been saying for four and a half decades?

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Jeffrey MacDonald was raised in Queens and voted both "most popular" and "most likely to succeed" in his graduating class from Patchogue High School. He went to Princeton and then graduated from Northwestern Medical School before completing his residency at Columbia Presbyterian Medical Center. One year later he was a Green Beret in the U.S. Army, serving as a group surgeon stationed at Fort Bragg just outside of Fayetteville, NC. In short, he is no dummy.

At 3:42 in the morning of February 17, 1970, he placed an emergency call to Fort Bragg dispatchers to report a stabbing in his home at 544 Castle Drive. Four Military Police officers were sent there and found that his wife Colette and daughters Kimberley and Kristen were dead. There was blood splatter all over the place and the word "pigs" was scrawled in blood on the headboard of the master bed.

Colette, who was pregnant at the time, had been stabbed 37 times (21 with an ice pick and 16 with a knife) while two-year-old Kristen had been stabbed 48 times (33 with a knife and 15 with an ice pick). Kimberley's head was clubbed and her neck was punctured between 8 and 10 times with a knife.

As for Jeffrey MacDonald himself, he had been stabbed in the left triceps and four or five times in the torso, with one of the latter stabs causing a partially collapsed lung and another causing a laceration that a hospital physician referred to as "gaping." In addition, his head was cut and bruised, he had a concussion, and there were several punch marks on his abdomen. He was taken to Womack Hospital and remained there for a week before being discharged.

MacDonald gave the following account: He had gone to the couch to sleep after Kristen came into the bed, then, hours later, awakened to find intruders in the house. He attempted to run to his family's aid, only to be accosted by three men who attacked him with an ice pick and piece of lumber. As they fought, a female stood nearby holding a candle while saying "acid is groovy" and "kill the pigs." Eventually MacDonald's pajama top was pulled over his head and he was knocked unconscious.

His description of the intruders did not lack detail, especially when it came to the woman with the candle. While all he said of the men was than two were white and one was black, he described the woman as white with long blonde hair, high-heeled boots, and a wide-brimmed floppy hat that partially obscured her face.

Investigators from the Army's Criminal Investigations Division (CID) were initially skeptical of MacDonald's story and interrogated him extensively on April 6th. Eventually, on May 1st, the Army formally charged him with murder. Nonetheless, his wife's parents believed he was innocent and stood by him throughout the ordeal.

An Article 32 hearing in military court (similar to a preliminary hearing in civilian court) commenced on July 5th and ran all the way through September, making it one of the longest in American history. It was overseen by Colonel Warren Rock with MacDonald represented by Attorney Bernard Segal, and when it finally concluded, the charges against MacDonald were dropped because they were, in Rock's words, "not true."

Two months later MacDonald received an honorable discharge and returned to civilian life. In his early days after leaving the Army, he moved to New York to practice medicine -- and made several media appearances, most notably on The Dick Cavett Show, in an episode that aired just days after his discharge.

While talking on air with Cavett, MacDonald understandably criticized the Army investigation for having focused so closely on him that other suspects were not pursued; but every bit as understandably, the way he leveled that criticism rubbed some viewers the wrong way. His quips about military investigators seemed inappropriately comedic. Watching him, Colette's family noticed that although he talked about how his rights had been violated while he was a suspect, he did not say anything about wanting the killers to be found and brought to justice. Most notably, her family couldn't help but notice that McDonald expressed no sorrow about the loss of his wife and children, who had, after all, been brutally murdered just ten months earlier.

Although Jeffrey MacDonald's in-laws had staunchly defended him, they suddenly found themselves harboring doubts in the wake of his appearance with Cavett. To this very day, 46 years later, he is probably haunted by the knowledge that he planted those doubts in their minds.

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MacDonald did not remain in New York for long. With the charges against him dismissed, he was deemed an innocent man and decided to move to Southern California and re-start his professional career with a clean slate.

In 1971 he began working as an ER physician at St. Mary's Medical Center in Long Beach, and performed well. As the 1970's unfolded he worked his way up and eventually became the hospital's Director of Emergency Medicine. He purchased a waterfront condo in Huntington Beach, along with a yacht that he docked in the adjacent marina, and also purchased a condo in the ski area of Mammoth Mountain. Because he was only 26 when the killings took place and 27 when he relocated, MacDonald's success in California came at a remarkably young age.

Although the murder of his family was well-known, his officially sanctioned innocence was also well-known -- remember, the charges were declared "not true" -- and his behavior out West was exemplary. Few people in his adopted home town believed him capable of murder.

Life seemed good for MacDonald, but all along there was trouble brewing under the surface back East. Although it started even before he moved to California and was generally due to Colette's overall family coming to distrust him, the trouble was mostly due to the distrust which welled up in her father, the aforementioned Freddy Kassab.

Previously, Kassab had been so certain of MacDonald's innocence that he testified on his behalf as a character witness, stating: "If I had another daughter, I would want the same son-in-law." However, MacDonald's demeanor after the charges were dropped caused red flags to start flapping in Kassab's brain, and he decided to investigate things for himself. This August 1979 article in People magazine quoted him saying that "after (the charges were dropped) we were lucky ever to reach Jeff on the phone."

Without declaring his primary intent, Kassab began what would become a multi-year process by asking Jeffrey MacDonald to send him copies of the transcripts of his Article 32 hearing. MacDonald procrastinated and seemed evasive, which made the red flags flap even harder, but eventually provided them. Of course, refusing or failing to do so would appear outright damning.

At one point, eager to mollify his persistent father-in-law by making it appear he was seeking justice, MacDonald told Kassab that he had tracked down and personally killed one of the murderers. Kassab was skeptical but still looked into the claim, and it did not take long to determine it was a lie. Hence, another red flag was raised.

Kassab was allowed to visit the crime scene in the company of CID investigators Peter Kearns and Jack Pruett. He remained for several hours, performed a number of tests and experiments to check against statements made by MacDonald during the Article 32 hearing, and found inconsistencies that caused those red flags to transform into alarm bells. Freddy Kassab became convinced that Jeffrey MacDonald was not a bereaved widower, but a soulless killer.

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In his quest to bring the law down upon his son-in-law, Kassab found himself in a Catch 22. Technically the CID could reopen its investigation, but it had no legal authority to bring charges against MacDonald because he was a civilian and no longer in the military; and civilian authorities found themselves facing the same problem in reverse, unable to take action because the crimes had been committed when he was in the military and not a civilian.

The only way to bring him to trial was to file a citizen's complaint through the U.S. Department of Justice, which Kassab did in 1972, only to see it linger for almost three years while MacDonald's career took off like a rocket.

In January 1975, a federal civilian grand jury decided to charge MacDonald with his family's murders and he was arrested in California. A week later he was freed on $100,000 bail and four months later officially pleaded not guilty.

However, no trial took place. Based on double jeopardy (because the CID had dismissed the charges in 1970) and speedy trial concerns (because of the time which had since elapsed), MacDonald appealed on the grounds that the federal government had no standing to charge him. The U.S. Fourth Circuit Court of Appeals sided with him and ordered that the case be dismissed.

So he continued living the ostensible good life, but in 1978 the pendulum swung against him when the U.S. Supreme Court heard an appeal by the government and reinstated the charges.

His trial commenced on July 16, 1979, and on August 29th of that year the jury found him guilty of first-degree murder in the death of Kristen and second-degree murder in the deaths of Colette and Kimberley. Judge Franklin T. Dupree, Jr. promptly sentenced him to three consecutive life sentences.

In the 37 years that have since passed, MacDonald has continued to proclaim his innocence and continued to appeal his conviction. He has never changed his story about what happened that winter night in 1970; and in an odd twist, because never changing his story means never admitting guilt and never admitting guilt means never expressing remorse, his parole hearings have never stood a chance.

Meanwhile the case has continued to fascinate. It has led to countless media stories; to behind-bars appearances on national news shows; to the previously mentioned miniseries; and to at least three big-selling books from varying points of view... and Jeffrey MacDonald remains in prison, officially considered a murderer as he starts his 74th year of life.

Those are the simple facts that aren't surrounded by fuzziness, but there is a plethora of similarly simple facts that are surrounded by fuzziness, and much of that fuzziness is founded on yet more facts.

If you peel back the layers and look at this case, you will find that nothing about it is simple. When you consider that whole books have been written about it and still failed to arrive at any unimpeachable conclusion, there is no way I can do it justice in a single blog post -- but because I can't help myself, I am going to try.

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To today's ears, Jeffrey MacDonald's story about a floppy-hatted woman saying "acid is groovy" and "kill the pigs" while bludgeoning is being carried out in the same room sounds preposterous. But 1970 was not 2016, and given the atmosphere of 1970, the story was plausible.

The Charles Manson killings were fresh in mind and had been carried out in much the same way. Stories of disastrously bad acid trips were rampant and social upheaval was very real. We now think of hippies as peace-and-love types who puff on joints while eating Ben & Jerry's and picking mandolins, but back then they were known to spit on people in uniform.

And here is something to chew on: While the floppy-hatted woman might sound contrived, like something inspired by the one-armed man from The Fugitive, there actually was a floppy-hatted woman out and about on the night in question.

Like I said earlier, four military policemen were dispatched to the MacDonalds' house in response to Jeffrey's distress call. While en route, one of them saw a woman wearing a wide-brimmed floppy hat not far from the house, and that was before he could have known what description MacDonald would give.

Several witnesses saw a woman matching that description in the hours before and after the killings, but no one saw such a woman during the window of time in which the killings took place. Witnesses also reported that she was with several men; and while the reports differed as to the specific number of men, they were all clear that one was black and the others white, which is in keeping with MacDonald's description of the intruders.

Further, the floppy-hatted woman spotted that night has been identified by name -- Helena Stoeckley -- and on multiple occasions she confessed to being in the MacDonalds' home that night.

Stoeckley was a smart, but troubled and horribly drug-addicted figure in Fayetteville's counterculture. She was not blonde like MacDonald described the floppy-hatted woman as being, but she was known to wear wigs and blonde saran hairs were found in the house. At trial, the prosecution asserted that saran was not used in wigs at the time of the killings and that the fibers might have come from a doll; however, it has since been proven that saran was used in wigs at the time, and has also been proven that no contemporaneous dolls had hair as long as the saran hairs found at the scene (22 to 24 inches).

To be clear, in Stoeckley's pre-trial confessions she did not claim to have committed the murders, only to having been in the house. But then again, that is consistent with MacDonald's description of events, since he only says that the woman chanted while he fought with the men.

On some occasions Stoeckley recanted earlier confessions, but always wound up re-confessing, and she inadvertently provided tantalizing evidence of her presence by saying she encountered a broken rocking horse while in the house. There was at least one newspaper photograph in which a rocking horse can be seen, but it was not public knowledge that it was broken: That fact did not come to the public's attention until years later, after a woman named Helen Fell (a friend of MacDonald's mother) mentioned it in passing while speaking with author Errol Morris while he was doing research for his book A Wilderness of Error.

Stoeckley died in 1983 and was not a perfect witness. Some of her testimony did not match the crime scene, but some did, and given her drug use, is that surprising? It was other people who identified her as being in the vicinity, and when you combine that with her recurring recollections of having been in the house, doesn't that create reasonable doubt about whether MacDonald did the killing?

The prosecution theorized that MacDonald made up the story about intruders... but doesn't it seem like he must have been the luckiest storyteller on Earth, to have made up a description of a woman and then have that description turn out to match an actual woman whose actual movements that night (and statements about that night) corroborated his story?

To underscore its contention that MacDonald made up the story, the prosecution claimed that his house had no evidence of intruders. However, that was a flat-out lie: In reality, a bloody palm print that did not match either him or Colette (or anyone else known to have been at the scene) was found on the footboard of the master bed, and wax droppings on the floor did not match any of the candles in the house (remember that he said the floppy-hatted woman was holding a candle).

Also, a brown hair that did not match Jeffrey MacDonald was found underneath one of Kimberley's fingernails... and another unmatched hair, covered in blood, was found underneath one of Kristen's fingernails... and a brown hair in Colette's left hand was falsely reported by the government as being too small to test; subsequently, tests have found that it does not match Jeffrey... blue acrylic fibers found in Colette's left hand and on the floor did not match any of the fabrics or clothing in the house... black fibers that could not be matched to anything in the house were found both in Colette's mouth and on the piece of lumber that was used to club Kimberley; and the presence of those fibers was withheld from the jury despite the fact that Helena Stoeckley was known to wear lots of black clothing... and perhaps most damning, skin fragments found underneath some of Colette's left hand fingernails were "lost" by the government and thus rendered unavailable for testing -- a fact which looks even more damning when you consider that Jeffrey's injuries did not include fingernail scratches.

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Reasonable doubt, anybody? The above facts certainly establish that Jeffrey MacDonald should not have been convicted, but are they enough to establish that he is innocent? I don't think so, and therein lies the question that transforms this case into a witch's brew.

There is something about MacDonald's account that has rung hollow to me from the moment I first heard it: The mere fact that he would survive the kind of encounter he described.

Yes, his concussion supports his claim that he got knocked out -- but if those who did the KO'ing were bloodthirsty killers, why didn't they go ahead and finish him off, since he was literally incapable of defending himself? He was an eyewitness who could tie them to the scene, so why not eliminate that problem when you've got the goldenest opportunity you could ask for?

Presumably, a physician would know which part of his head to hit in order to concuss himself with the smallest risk of brain damage.

Regarding his serious but not lethal stab wounds, we can also presume that a physician would know just where to insert the blade -- especially a surgeon, which is what MacDonald was.

Speaking of stab wounds, what do you make of the fact that the three people who perished were all stabbed in the throat? A blog with the subtle name Jeffrey MacDonald: Guilty as Hell theorizes that this was done not only to kill, but to keep the victims from screaming so they wouldn't awaken any neighbors. Noting that Kimberley's throat wounds numbered between eight and ten and were concentrated in a small area, the blogger rhetorically asks: "Would a band of drug crazed hippies be that precise and methodical?"

The same blog raises the rather obvious question of why MacDonald would make up a lie as ridiculous as telling his father-in-law that he tracked down and killed one of the murderers... Everyone who has been nagged understands the temptation to make something up to get the nagger to go away, but come on. How could a whopper like that stand up to such logical questions as: How did you figure out who the killer was? Who was he? How did you track him down? How did you kill him? What did you do with the weapon? Where did you dispose of the body? How did you dispose of it so that you know it won't be found?

On a more concrete note, there is the matter of threads from the pajama top Jeffrey MacDonald was wearing that night, and where they were found at the crime scene: 34 underneath Colette's body, 19 inside the bedding in which her body was wrapped, three on Kristen's bedspread, and one near the base of the headboard where "pigs" was scrawled in blood.

Everything in the above paragraph would be very troubling, but not automatically damning... except for the fact that no threads from the pajama top were found in the living room where MacDonald claimed to have been attacked and stabbed through that top.

Three prosecutors worked the case and secured MacDonald's conviction, and two of them were later disbarred for ethical violations in other cases. While that seems to put a check in the "he's innocent" column, Brian Murtagh, the third prosecutor, comes off as anything but unethical. Now 70 years old, he remains convinced of McDonald's guilt 37 years later and continues to argue that belief with passion. A good article about him and the case can be read here.

One of the things he points to as evidence of McDonald's guilt is that some of Kristen's chest wounds did not have matching holes in her pajama top. In other words, McDonald, the surgeon, may have lifted her top while she was sleeping in order to better identify the lethal spots to stab; then stabbed her there; and then pulled the top down and stabbed her through it in other places, hoping investigators would see there were holes and fail to notice that there weren't "enough."

For years Murtagh has cited the blood splatter inside the home as being particularly damning to MacDonald. Although DNA testing was non-existent in the 1970's, investigators were blessed by the unusual fact that all four of the MacDonalds had different blood types. This allowed them to credibly track who was stabbed in which parts of the house and where (if anywhere) they subsequently went -- and the resulting crime scene map contained discrepancies from McDonald's account, especially with regard to physical contact between he and Colette.

Rankled by the aforementioned book A Wilderness of Error, which favored MacDonald, Murtagh consulted his case files in 2012 and typed a 14-page rebuttal.

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So the "he really is guilty" evidence turns out to be as compelling as the "he's innocent" evidence, but still, nothing is ironclad when so many things point in each direction.

Murtagh and others make much ado about the fact that if you were to fold Jeffrey's pajama top in a certain way and lie it atop Colette's body at a certain place, its 48 stab holes (all from an ice pick) align with her 21 ice pick wounds, allowing for some individual stabs to have passed through multiple folds in the top... Not that I'm an expert at folding, but this particular coincidence doesn't move the needle for me, because I'm pretty sure you could fold a given garment plenty of ways and make its holes line up how you want them to, when there are so many holes in play.

But then again, maybe I should put more stock in the pajama top, since none of its 48 holes have jagged or torn edges. That suggests it was stationary when pierced, which seems in conflict with MacDonald's claim that he was stabbed while fending off intruders.

And how is it that the pajama top wound up with 48 stab holes while his body had no more than a half-dozen?

Regarding the above-linked article about Murtagh, it is, like I said, good... but it's also too fawning for comfort, so much so that I wonder how many times its author, Gene Weingarten, makes "strategic omissions" or "uses some facts selectively" to "spin you toward a certain conclusion" (to quote his own words that he uses to besmirch others, since he does openly admit that he is trying to lead the reader down a particular path -- an admission that can easily be seen as a dishonest way of implying he must be trustworthy since he's confessing to having a bias).

Weingarten describes Murtagh as a "plumpish little" public servant who wears suspenders and is "resolutely boring." He goes on to say that Murtagh "often greet(s) people with a courtly little bow" and "views this case with an air of bemused exasperation, puzzled by its refusal to go away." Perhaps this is true, but it's too syrupy for me to buy.

Murtagh is a prosecutor, and we need prosecutors, because like Richard Pryor once quipped: "Some people need to be in penitentiaries." But prosecutors are cut from a certain cloth, and having once had the terrifying experience of witnessing one of them in action firsthand, I am incapable of believing that any prosecutor could be the kind of unassuming person Weingarten portrays Murtagh as being. They are not aw-shucksy guys with no agenda other than finding the down-home, apple-pie truth so help them Aunt Bea and Mr. Rogers.

Weingarten's article sings the praises of Murtagh's 14-page rebuttal to A Wilderness of Error, seeming to place it in rarefied air by saying it has "Roman numerals and alphanumerically labeled paragraphs"... but then it says Murtagh never filed the rebuttal or released it to the media, choosing instead to keep it to himself.

Weingarten says he never met Murtagh until he interviewed him for the article... but then says his wife was a co-worker of Murtagh's for 30 years.

None of that means anything Murtagh says is incorrect, but there's plenty here that should, if you are seeking objective truth, make you say hmmm and take a step back.

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So is Jeffrey MacDonald guilty or is he innocent?

I don't know, and I don't believe there is any way to know. And in a nation whose guiding legal principle is "innocent until proven guilty," that means he should not have been convicted.

However, there are so many rational and evidentiary reasons to believe he's guilty, that you have to ask yourself if you would want him walking the streets of your town. I guarantee that your answer is "No."

It is just as possible to railroad a guilty man as it is to railroad an innocent man -- in fact, it's probably easier to railroad a guilty one -- and that may well be what happened in this case.

Still... if MacDonald is innocent, how tragic is it that he is beginning his 74th year on Earth still behind bars, struggling against hope to clear his name and knowing he will probably never succeed? That would be one of the most biblically tragic stories in all of human history, the kind that should make us weep and wonder how we would feel if we were in his shoes.

All I know is this: I would never want to be in the position of having to decide whether to free Jeffrey MacDonald or keep him where he is. No matter which decision I made, I would immediately think I was feeling the sensation of blood on my hands.

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