April 5, 1975: Defense Motion to Dismiss Indictment for Denial
of Right to Speedy Prosecution and Trial
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NORTH CAROLINA
CRIMINAL No. 75-26-CR-3
UNITED STATES OF AMERICA, PLAINTIFF
JEFFREY R. MACDONALD, DEFENDANT
The defendant, JEFFREY R. MACDONALD, respectfully moves this Court, pursuant to the Constitutional and laws of the United States and to Federal Rule of Criminal Procedure 48, to dismiss the indictment against him because of the denial of his right to speedy prosecution and trial. In support of the said motion the defendant alleges as follows:
(1) In February, 1970, the defendant, a medical doctor, was serving in the United States Army, attached to the Sixth Special Forces Group, at Fort Bragg, North Carolina.
(2) On February 17, 1970, the defendant's wife, COLETTE, and his two daughters, KRISTEN, age 3, and KIMBERLY, age 6, were murdered, and the defendant stabbed and wounded by a group of intruders in the defendant's home, located on Fort Bragg, North Carolina.
(3) After the Army investigation failed to locate the perpetrators of the said crime, the Army, in April, 1970, caused the defendant to be arrested and charged with the murder of his family.
(4) Pursuant to the Uniform Code of Military Justice (UCMJ) the charges against the defendant were submitted to an officer appointed pursuant to Article 32 of the UCMJ. The said officer conducted judicial proceedings from June through September, 1970, including four full weeks of testimony in Court.
At all times throughout the said proceedings the Government was represented by counsel. The defendant was present at all times throughout these proceedings and was represented by counsel.
(5) The Government presented all of the evidence known to it and which had been assembled as a result of the efforts of more than one hundred military and civilian law enforcement investigators. The said investigators had assembled evidence from several thousand witnesses in various countries throughout the world.
(6) All physical evidence that had been obtained by the Government was subjected to intensive examination at the criminal investigation laboratories of the Provost Marshal General of the United States Army, located at Fort Gordon, Georgia. The said evidence was also examined by other experts retained by the Government.
(7) The Government called twenty-seven (27) witnesses in its case-in-chief against the defendant and in rebuttal to defense testimony.
(8) The defendant offered a full defense to the charges against him at the said proceedings. He testified at length under oath and was subjected to a full and searching cross-examination by counsel for the Government. The defendant was also examined extensively by the Court itself.
(9) The defendant called twenty-nine (29) witnesses on his behalf.
(10) The Government was required by the Court to present all the evidence known to it in support of the charges against the defendant, and it did so.
(11) In September, 1970, following the conclusion of these proceedings the Court made only findings:
(a) The Charges against the defendant was false.
(b) That the Government should pursue the investigation of another named individual as a suspect in the murders of the MacDonald family and the assault of the defendant.
(12) The conclusions of the presiding officer at the Article 32 proceedings were submitted to Major General Edward Flanagan, Commanding General of the John F. Kennedy Center for Special Warfare and U.S. Army Special Forces. The said conclusions were subjected to a full, independent judicial review by General FLANAGAN.
(13) In October 1970 General FLANAGAN entered an order dismissing finally and with prejudice the charges against the defendant brought by the Government.
(14) The order of General FLANAGAN dismissing the charges against the defendant was subjected to an additional independent judicial review by Lieutenant General JOHN J. TOLSON, Commanding General of the XVIII Airborne Corps, Fort Bragg, North Carolina. Following the review by General TOLSON, he concurred in the adjudication by General FLANAGAN and affirmed the dismissal of the charges against the defendant.
(15) On December 5, 1970, the defendant was Honorably Discharged from the Army.
(16) From January, 1971, to January, 1972, the Criminal Investigation Division (CID) of the United States Army conducted what it contends was a complete, extensive and thorough reinvestigation of the murders of the MacDonald family.
(17) In early 1972, the CID requested the United States Attorney for the Eastern District of North Carolina to seek an indictment of the defendant for the murders of his family.
(18) The said United States Attorney failed, refused and neglected to see an indictment in the said matter and took no substantive action on the requests for the indictment.
(19) The defendant is advised, believes and therefore avers that in early 1972 the CID requested the Department of Justice to direct that an indictment be sought against the defendant in the Eastern District of North Carolina.
(20) From early 1972 until July, 1974, the Department of Justice failed, refused and neglected to act on the request of the Army to seek an indictment of the defendant. During the said period the Department of Justice took no substantive action on the request to proceed against the defendant. Further, no legally valid reasons existed for the delay in instituting any action against the defendant, except that there was no evidence to support such an accusation.
(21) From early 1972 until July, 1974, the Department of Justice received requests from the defendant and from other persons that a final decision be made in regard to proceeding with the accusations against the defendant, including a speedy trial if he was to be accused.
(22) On January 10, 1974, CARL W. BELCHER, Chief of the General Crimes Sections, Criminal Division, Department of Justice, stated in writing that:
". . . the evidence currently available in this case is insufficient to warrant prosecution against Dr. MacDonald at this time."
(23) From January 10, 1974, the date of BELCHER's statement, until August 12, 1974, when the Grand Jury was empaneled which subsequently indicated the defendant, the Government obtained no additional new evidence against the defendant.
(24)Despite the conclusion of Government Attorney BELCHER on January 10, 1974, the Department of Justice in July of 1974 instituted proceedings to have the accusation against the defendant submitted to the Grand Jury for the Eastern District of North Carolina which was to be empaneled August 12, 1974.
(25) The decision of the Department of Justice on July, 1974, to submit the accusations against the defendant and seek an indictment of him before the Grand Jury was made as the result of pressures on the Department of Justice from outside sources and not because any new evidence had become avail to the Government.
(26) The conduct of the proceedings before the Grand Jury from August 12, 1974, through January 24, 1975 were needlessly and negligently delayed by the Government in total and complete disregard of the defendant's right to a speedy disposition of the charges against him and his right to a speedy trial.
(27) The Government, by its own admission, obtained no new evidence against the defendant from September, 1970, until the commencement of the Grand Jury proceedings on August 12, 1974.
The Government, by its own admission, presented no new evidence to the Grand Jury.
The Government, by its own admission, has conceded that the only difference between the initial proceedings against the defendant in 1970 and the proceedings before the Grand Jury was that the physical evidence collected by the Government in 1970 was "reinterpreted" by Government technicians.
(28) The physical evidence referred to above was available to the Government at all times from February 17, 1970 through January 24, 1975.
The technicians who reinterpreted the physical evidence were available to the Government at all times since February 17, 1970.
(29) The failure, refusal and neglect of the Government to submit the said physical evidence for such interpretation from 1970 to 1975 was the result of negligence, incompetence and indifference on the part of the Government to the constitutional rights of the defendant.
(30) The evidence that was used by Government to obtain the present indictment, and that will be used against the defendant at this trial, together with the witnesses who will be called by the Government have been known and available at all times in the years 1970, 1971, 1973, 1974, and 1975.
(31) The United States Army and its Criminal Investigation Division have been in charge or actively connected with the investigation of the murders of MACDONALD family from February 17, 1970, through the indictment of the defendant on January 23, 1975, to the present time.
(32) The Federal Bureau of Investigation was actively participating in and connected with the investigation of the murders of the MACDONALD family in February and March of 1970, and throughout the Grand Jury proceedings in this case. The FBI was available at all times from March, 1970 until July, 1974, to assist in the said investigation if it had been required to do so by the United States Army, the Criminal Investigation Division of the Army or the Department of Justice.
(33) The failure of the Government to act to bring the defendant to trial until more than five years have elapsed since the criminal proceedings were initiated against him in April, 1970, under the circumstances set out herein, constitute a denial of the rights of the defendant to a speedy trial, as guaranteed by the Sixth Amendment, and to due process of law, under the Fifth Amendment to the Constitution of the United States.
(34) No other relief than the dismissal of the indictment can vindicate the defendant's rights to a speedy trial, and to due process of law, which rights attached when the criminal proceedings in this matter were initiated against the defendant in April, 1970.
WHEREFORE, the defendant prays that Honorable Court order the above-captioned indictment against the defendant be dismissed.
Dated: April 5, 1975
Bernard L. Segal
Suite 220, 536 Mission Street
San Francisco, California 94105
Durant Williams Escott
Attorneys for the Defendant
412 Law Building
Charlotte, North Carolina 28202