1979 JEFFREY MACDONALD CASE TRIAL TRANSCRIPT
August 28, 1979: Defense Attorney, Bernard Segal's Closing Arguments
F U R T H E R P R O C E E D I N G S 1:00 p.m.
(The following proceedings were held in the presence of the jury and alternates.)
THE COURT: Good afternoon, ladies and gentlemen. Now, the jury is with the Defendant for his arguments.
C L O S I N G A R G U M E N T
MR. SEGAL: With submission to Your Honor. Yes, ladies and gentlemen of the jury, there has been a tragedy, but we haven't talked about the real tragedy in this case yet.
You did not witness the tragedy of February 17th, 1970. You have only heard about it vicariously and absorbed some of the pain of the destruction of a loving family. You did not witness -- only heard about vicariously -- the destruction for the first time of the life that Jeffrey MacDonald had built when in 1970, he was charged the first time with the crime in this case. You only learned about that in a second-hand fashion.
You also have not seen or experienced the second tragedy in Jeffrey MacDonald's life -- the grand jury in 1974 and '75 -- again, you have only learned of that vicariously. You have heard about the destruction of the life that a man tried to rebuild again.
The tragedy that you have experienced, though, in this case is the tragedy of the legal system that said nine and a half years after the monstrous murders of Colette, Kimberley, and Kristen MacDonald that for the second time, using the exact same physical evidence -- that for the second time, somehow the legal system permits this to happen. That tragedy, you have experienced personally. You have sat here the better part of seven weeks and listened to the story of the same fibers, the same threads, the same blood spots, the same crime scene, same bungling, same ineptitude with one or two notable additions. I will devote some time to talking with you about those additions.
How is this tragedy going to resolve? That is the task that befalls you collectively as the jury in this case. You will write the final chapter on the one tragedy that you were exposed to and permitted to experience.
Who is it that is talking to you about either that tragedy or the destruction of the family or the destruction of Jeff's life? Who are the people we are talking about? Let me say to you that I and my colleague and friend, Wade Smith, are the advocates and the representatives of Jeffrey MacDonald. We make no bones about it that our role in this case is to present his side of the events and the episodes that took place. We make no bones about the fact that he has placed in our hands the responsibility for his future, but I also want to identify to you who are the other persons who have been talking to you about the facts in this case.
They are the prosecution attorneys. Now, they are not people riding on a white horse and shining armor. They are not non-partisans. They are merely the lawyers on the other side. They are no different than Wade Smith and I. They have an interest like I have an interest to represent in this case. They have a side to represent. It is not like they are above the fray looking down upon this and then in a non-partisan way with no motive to do any harm to anyone coming down here and sharing their views of the evidence you see.
That is not true at all. They are hired for the specific purpose of pushing someone's point of view. Who is that? In this particular case, it is the viewpoint that the CID has doggedly, stubbornly, and erroneously adhered to for nine and a half years. As a matter of fact, if they did not advocate that view, if they did not represent a side, they would probably be replaced because that is their job. They are not here as non-partisans. They are not here as independent souls looking at this matter. They represent a side. They have egos, too. They have ambitions. They would like recognition also. They would like their superiors and others to recognize their success in this case or in any other case, promotion, outside opportunity. They are exactly like Wade and myself. They are no different.
So, as I talk to you in the succeeding time that is available to me, I trust you will recognize that I am the spokesperson for Jeffrey MacDonald, but I am not less; and when Wade speaks to you later on, he is not less than any of the Government's attorneys. They have no special hold on what is fact and what is correct inference and certainly not on what is truth.
I thought I would remember something from the beginning of this case when one of the Government's attorneys in opening remarks to you made some statements that I found confounding at the time and I believe were dubious as to his ability to do it, and I now suggest to you that I will share them with you. "This is not a complicated case. It is a straightforward case." I just heard him about an hour ago -- conclusion of his case -- having spent seven and a half weeks to try to make sense out of a case and to tell you about how complicated it is, but you have to pay attention to the moving fibers and floating blood and the fingerprints that can't be lifted and identified.
Now, how are you to choose? How are you to ultimately decide in this case? Is it simply, you know, one side or the other? I suspect that you are all a bit more sophisticated than that. I think you know enough about the jury system, but I impose upon you now a moment to let me share some thoughts with you.
You have not been brought here -- you have not gone through the process of jury selection for the purpose of just being 12 people to sit down in the jury room after we finish talking with you and decide what you think about this case. This is not a group think process. This is not sort of a discussion around coffee after dinner. This is something very different.
A jury is a unique institution. A jury is a special enterprise, and it works according to special rules. Now, eventually, the rules of this process will be given to you by His Honor, Judge Dupree. I feel that there is no way one could talk intelligently about the facts as I see them without sharing some of those rules with you now. I say as a warning to that, of course, that ultimately if anything I say is different from what Judge Dupree says about the rules of law, obviously, his is the only word you will follow. But I will try to be as accurate and correct as I can because I am talking about some concepts and rules that are absolutely fundamental to the system, and I do not think I will misstate them.
There are five rules that you will take with you to the jury room. By your ability to apply those five rules, you will be functioning as a jury as opposed to a coffee klatch. You will be functioning in the purpose that you were asked to be here for rather than simply as 12 persons giving their ad hoc individual opinions.
These are among the most fundamental of the number of rules that the Judge will give you at the conclusion of the case. I point to them because they start and end with the differences, I think, between what I have to say to you, what Wade has to say to you, and what the Government has to say to you.
The first of these five special rules that will dominate, I think, your thinking in the jury room is the rule that says the Defendant has a presumption of innocence that protects him from the beginning of the case until the very end of the deliberations; but again, I suspect this is not a phrase that you are hearing for the first time here in this courtroom, but I would like to share with you for a moment, I think, a correct observation as to why our system has the presumption of innocence.
We all too frequently take the system that we cherish and fight for and that we hope to preserve, we sometimes take it rather for granted and do not consider why the elements exist. The presumption of innocence is something that exists only in a criminal case. It does not exist in a civil case. The reason for that is that there is an inherent fundamental imbalance in a criminal case which no Defendant can ever correct. That imbalance is this: On one side of the criminal case are the prosecutors. They are not the Government. They are the prosecutors who use the power of the Government on their behalf of their clients -- their interest in this case. I dare say that it is obvious to comment that there is no individual Defendant, let alone Jeffrey MacDonald, there is no individual Defendant that you or I could conceive of whose power ever would equal that of the Government. The founders of our nation and the creators of our legal system recognized it from the outset. And in order to create the inherent and fundamental imbalance in the system, you are never, when you are accused by the Government through the hands of prosecutors, even that you are never in the same position they are as in a civil case -- two parties trying to tip the scales of justice one way or the other -- but because we recognize that and we have recognized it for more than 200 years, we do something that we hope if you, the jury, will apply correctly, it will do something to partially correct the imbalance in the system. That is to give the Defendant a head start. Now, the example which we frequently talk about in civil cases is that the scales of justice start evenly balanced. Each side adds evidence to the scales and when it is tipped -- the case one way or the other by a slight amount -- that is the side that should receive the verdict. But because in a criminal case, we know that no individual Defendant has the power and the opportunity and the resources in any way to equal the Government, the founders of our nation, the creators of our legal system say this: the scales tip this way. The Defendant has the advantage here and the Government must, in order to obtain a conviction, take that advantage from the Defendant and tip the scales all the way the other way by a quantum of proof and an amount of proof, I will talk about in a minute.
Let me give you an example of why the presumption of innocence and how it really works. It is a very simple example. You saw one of the people who have been helping Wade and myself the other day -- John Myers. He was the short gentleman -- the last witness we called. He is an investigator. John Myers is only illustrative of what happens in any case. I don't care whether it is Henry Ford or Jeffrey MacDonald, the same thing will happen. If we send John Myers out to find a piece of information and he goes to someone's door and says, "I am an investigator working and trying to help Jeffrey MacDonald. Can I get some information?" The person says, "I don't want to talk to you. I don't want to be involved." You all know that expression. You all know that people feel that way. Probably after watching what has happened to some of the people who walked into here, you know why people don't want to be involved.
Don't want to be involved -- closed the door. What can John Myers do? What can I do? What can Wade do? Nothing. We have no ability to tell anybody, "You have to in the name of good sense and justice talk to us. It is fair." Now, take the reverse. Take the worst CID agent you saw, the most inexperienced MP investigator, the newest FBI agent and you send him knocking on a door. He says, "I would like to talk to you about the MacDonald case." "I don't want to talk to you." "I am an agent of the FBI, CID, MP."
What is going to happen when you tell somebody, "I am the representative of the Government's criminal prosecution process"? What happens is that you will think, "Gee, if I don't cooperate, what are they going to do -- take me downtown? Is someone going to call my employer and tell him that this is the Government and your man will not cooperate? Are they going to look at my tax returns, perhaps?" I don't know if that is real, but they are the suspicions that we all have.
MR. BLACKBURN: Your Honor, we would OBJECT to this.
MR. MURTAGH: Your Honor, we would OBJECT to this.
THE COURT: Well, I will just instruct counsel for both sides to confine your argument to the evidence that has been offered and received in open court. Go ahead.
MR. SEGAL: When that investigator speaks on behalf of the Government, he invokes powers that no person would like to challenge and the doors open to him and information flows. There is no question about it.
One last observation on the presumption of innocence. What Defendant that you know of, let alone Jeffrey MacDonald, could afford to spend the way the Government can to prove a case -- to prove a point. I dare say that we are weighted down with charts in this case to an astonishing degree. One could only wonder how deeply the Government goes to make points over and over again. What possible benefit could there be to showing the same photograph four times over? Who could look to his pocketbook and could afford that kind of defense? Because of all of those reasons, because of the inherent imbalance, the founders of the system said: you, when you go out as jurors, start with the idea, with the piece of information, with the rule of law that says you will presume not only Jeffrey MacDonald but every Defendant innocent of the crimes charged.
What is the second rule of law? How can the Government change that situation? Obviously, there are cases where they can and will, but again, there are rules that guide you and tell you how that is to be done -- tells them how it is to be done -- and lets you know whether it has been done.
That rule is called the burden of proof. The burden of proof in a criminal case, again, is different that a civil case. I know the Government has talked about it, but I have some things to say about what they have commented upon. I don't believe they have adequately or fairly stated what I think are the applicable rules of law. Again, it is not my opinion what the law counts and it is not their opinion; it is what the Judge tells you. But I think that I want to share with you something now that is worthwhile to be considered about the second rule.
The second rule is that the burden of proof in a criminal case rests from the beginning of the case to the end of the case strictly on this table -- on these men -- on these prosecutors -- and contrary to all of the words that you have heard this morning, it never, never, never shifts to the Defendant. It is absolute nonsense for the Government to have stood here this morning and piously, you know, give proper obeisance in the direction of the rules of law say, "Yes, we the Government lawyers -- we recognize that there is a rule called the burden of proof on us," and then to ignore it by going on and on arguing what -- "Why doesn't Jeff explain this? Why doesn't Jeff explain that? Why don't we know this from Jeff? Why did Jeff do that?" Nothing that Jeffrey MacDonald does is right. It is all wrong. What is happening when they start talking like that about the burden in this case?
The law does not permit, the law does not countenance the burden ever leaving the responsibilities of the prosecuting lawyers. Every single thing that you have heard this morning about, "Why doesn't Jeff explain this," and I thought the most incredible of those remarks being, "If he had an explanation, you could be sure he would have put it before you," is in my judgment contrary to the law, and I suggest that you listen carefully to what His Honor's instructions are on that. That is simply not the law that I understand it to be applicable in the United States. No Defendant has to explain it away.
It is like some of the questions the Government lawyers asked some of the witnesses at times. It brought a chuckle from many members of the jury. Many members of the audience felt the same way. "Well, did something happen?" The witness said, "I don't know what happened." "Well, then, you don't know that it didn't happen?" "I don't know that it didn't happen." What does that prove? I mean, Jeffrey MacDonald, in the guise of questioning the other day, was asked, "Well, can you explain" -- what -- "all of our theories of the case about this fiber and that hair; you can't, can you," and then they stand up here and argue in the face of the law, contrary to what the law says, that he should have explained it away. That is not so, I submit to you, and I suggest that you follow what the Judge tells you in this case rather than anything I said, and most assuredly, nothing you have heard from counsel over here.
What is the third rule that makes and guides your deliberations? It is the rule that has to do with the amount of proof -- the quantity that you have to see. From whom? From this table, from these lawyers, and that rule says that the quantity of proof must be beyond a reasonable doubt.
Now, those are not just words. It is what separates people around a coffee table from a jury. You have got a responsibility. The law imposes that upon you. You know that you are going to accept it. The question is whether you are getting the proper guidance. What does it mean when we tell you that as the third of these major rules, the case must be proven to you by this table beyond a reasonable doubt? There are lots of examples -- there are lots of examples.
I guess one that I have heard so many times and which I think is sufficiently clear in my own mind and that I can perhaps restate it without botching it up is the one that says, "Now, how do you know what is a reasonable doubt in a case?" Take a matter of some importance in your own life -- something of a really serious decision. Are you going to leave North Carolina and transport your family and move to some other part of the country and start a new life, start a new job, leave a career that you have engaged in for a long time and which you have much invested in it, start a new career -- going to make some important decision -- not little things we are talking about but something which has real serious meaning to you.
If, when you have all of the facts in front of you that relate to this decision, you are hesitant to go ahead with that decision, the law would say to you that the name we put upon that hesitation -- the hesitation to act when you have got all the data -- is the reasonable doubt that we are talking about. In other words, put as lawyers put it, it is probably incomprehensible -- needlessly so.
If in a matter of importance in your own lives, having the data in front of you, you hesitate to act, you then hold a reasonable doubt. When you hold a reasonable doubt, that means one thing and one thing only -- that the accused, the Defendant, Jeffrey MacDonald, if you hold a reasonable doubt, must be acquitted. That is what the law commands you. That is the third of these five principles.
Now, what kind of proof and how are you to weigh the kind of proof the Government has offered, which must be beyond a reasonable doubt in this case? It is circumstantial evidence. It is the indirect kind. Circumstantial evidence should not be less clear than direct evidence. It should not be more obscure and more difficult to follow. It ought to point correctly and clearly to the conclusions as argued by the side that offers it. It ought to point in a way in which when you would hear it, you would say to yourself, "I do not hesitate. This is a matter of importance right now. I do not hesitate on these facts or on the conclusions that they want me to draw from it. These facts don't allow any hesitation and doubt. I do not have a reasonable doubt. I must convict." That is what circumstantial evidence is.
It says that it has got to be clear enough for you to figure out that it really does stand for proof beyond a reasonable doubt on that subject. It is the indirect evidence and you have heard all about that, but do not for a moment consider the idea that because someone has called it circumstantial evidence, that therefore, you are allowed to be confused by it, and therefore say, "Well, I will accept some lesser amount -- some lesser quality of this proof because they have called it circumstantial evidence." That is not the law.
His Honor will define circumstantial evidence for you. It is, of course, acceptable. Nobody is quarreling about that. There is no challenge to circumstantial evidence. It is useful, but it has to point in a way with clarity to the inference, the conclusion that those lawyers for that side want you to draw from it, and if it does not, they have not met that standard. They have not met the proof beyond a reasonable doubt.
Now, the last thing that I want to say about the five rules -- I know that I have taken a bit of time, but you cannot discuss that case without knowing how you are supposed to measure it. What is the standard? The last one, I have already alluded to and I am going to state it very briefly and say to you that that fifth rule that you take to the jury room is that the burden of proof does not shift to the Defendant.
He does not have to prove anything. You will also be told that the Defendant does not even have to testify. He could sit here with arms folded and say, "Go ahead, Government. Under our system of law, you have to prove it, and if you don't, I am entitled to get up and say to the jury that they have fallen on their faces, and I am entitled to an acquittal." He has done more than that in this case -- far more than that -- but by the act of going ahead and putting on evidence, that does not change anything and that is what the Government's lawyers are arguing this morning, that because MacDonald -- Jeffrey MacDonald -- he has assumed some burden.
The Government has had a theme that I find needs to be commented on quite early in this case. They keep talking about what the physical evidence says in this case and that is what it all is. It is how they have arranged to interpret and understand the physical evidence. The Government says, "Physical evidence doesn't lie." They said that in the beginning. They say it now. I want to tell you something else. Physical evidence doesn't say a darn thing. Physical evidence lies there. The fibers lie there. Everything lies there. The only thing that is speaking is not the physical evidence, but it is the interpreter speaking. Who is the interpreter of the evidence for you? The non-partisan, the fellow on the white horse and the shining armor? Not at all. It is my adversary -- my opponent on the other side.
Physical evidence does not say anything to you. The physical evidence in this case is subject to their views, as I submit, and is subject to my views. I will suggest to you that we will go through those views as I see this evidence and submit to you that there is a more logical and reasonable and understandable way of seeing this evidence that clearly and under no situation has the Government seen this evidence for you and interpreted it for you in a way that one could conclude beyond a reasonable doubt.
We have waited here seven weeks and then in the final minutes of the three-hour opening address this morning to learn what the Government's interpretation of this evidence is. Their interpretation, I say to you, defies the logic, defies what the facts that you know in this case is, defies any reasonable acceptance of their position. And that is that somehow Jeff MacDonald took this club, pushed it in his wife's belly, swung it a la baseball bat, clubbed Kimberley, killed his wife, struck his wife, and moved the bodies. I dare say that not one member of this audience, least of all myself, could repeat to you right this minute in correct fashion the sequence and order of all the events the Government said happened.
They have not succeeded in telling you a coherent, a logical explanation for these events, which is what their burden is in this case from start to finish; and certainly, they have not done any of that beyond a reasonable doubt.
What is this case really about? The case is about what happened to people. Knives don't kill by themselves anyway. Ice picks don't attack people by themselves anyway. Clubs and any other weapons do not function by themselves. They function because there are human beings who have motives, who have reasons. We ought to be able to see those factors right here in front of us in this courtroom. Heaven knows, after seven weeks, there has been enough time. After nine and a half years, there has been enough time to be able to explain what people did in this case.
The Government, instead of talking about people, have castigated me because I asked Jeff about his life -- about the human being. Well, I thought that if you were going to believe that he did it, you are going to have to believe that this man was capable of some monstrous acts. I get faulted for that, too.
The Government insists that what you ought to do is take the fibers in one room, twist them all together into a thread, and they will hang this entire case by that thread. It is absolutely beyond me as to where a jury who has heard this same evidence could conclude that they have done anything except continue to twist the fibers around and leave them lying all over the place going in every direction and many, many different conclusions.
Now, one of the things about the physical evidence, of course, is the fact that none of it is new. I said that earlier and I come back to it now. It has been in this case from day one. It has been in this case from the first efforts of the CID to try and understand this case, but what happened to this physical evidence? The Government shuts its eyes, puts its head in the sand collectively, and avoids looking at the reality. Much fun, apparently, has been made by the Government about the idea that we have been roundly and severely critical of the crime scene and the crime scene process.
We did offer you the testimony of Professor James Osterburg, a Professor of Criminal Justice at the University of Illinois, Chairman of the Department of the University of Indiana, Chairman of the Department for 20 years in New York City, Homicide Detective, Crime Scene Processor, author of books on the basic elements of criminal investigation. There was no rebuttal. There was no response. There was no criticism and no debate that what he said is, in fact, a correct statement of the responsibility for a criminal investigation.
Now, I want to say right now that you have never heard me or Wade say or anybody has been able to hear us say that what we demanded was some perfect investigation. This case has never been a question of whether perfection was achieved. Heaven only knows, what we asked for is competency because, as Professor Osterburg told us, as all investigative manuals tell us, not because they are some truth and that the real world is a different truth, but because what they tried to capture is the essence of good criminal investigation. What they tell us is that crime scenes have to be processed in a certain way if we are able to play detective and draw inferences and conclusions from the crime scene.
What is the purpose of going there? What is the purpose of collecting hundreds and hundreds of vials -- none of which all have been opened here -- none of which anybody actually dealt with, but we just talked about them in abstract -- what is the purpose of all that?
Professor Osterburg tells us, "If you are going to solve a crime or if you are at least going to preserve the information as to how it happened or perhaps find the information of who did it, there are certain fundamental steps." The first thing you do is to protect the crime scene. Yes, of course, as Professor Osterburg said, "Primarily, if you find a living human being, you, of course, must save that at the price of letting physical evidence be destroyed or damaged."
The Government would have you believe that its life-saving efforts, consisting of one man, Kenneth Mica, giving mouth-to-mouth resuscitation, that that justifies the multitude of people marching through this crime scene for hours and hours afterwards -- the multitude of acts which I will cover one by one with you which unalterably and forever prevented this crime scene from serving as the basis for all of the invention and hypothesis and invention of theories and speculation by Government counsel.
Now, after they process it, what do we know the basic, ordinary criminal investigation required? Remember, we are not talking -- we never asked Professor Osterburg what is a perfect investigation or even what is an outstanding investigation. Let's go beyond that. You need to process it fully and carefully to uncover the trace element clues that area available there. I will talk about that aspect also further, but let me just lay it out for you, if I may, the beginning.
What are the things that need to be done if the Government is to be allowed to do anything with the physical evidence, let alone tell you that they have established a theory beyond a reasonable doubt?
The third thing is that you photograph the findings. Why? Because the scene can obviously not stay that way forever, and you want to be able to think and reason and study and be able to draw inferences and conclusions later on.
You know what the photographing was like -- the Dempsey Dumpsters -- that will always stay forever, in at least my mind, as to why the photographs didn't really come out right. Somebody got sick, somebody didn't have enough flashbulbs, and then the Dempsey Dumpsters, one of the critical things like fingerprints, critical matters like the blood spots which we cannot, of course, today see in our own courtroom here in clarity and detail to draw inferences from.
The fourth thing that Professer Osterburg points out is that after you have got preservation of the crime scene, where you have got your processes of fully and carefully being photographed, then you do scientific evaluations, and of the photos, you draw conclusions from it. I want to submit to you that the evidence clearly supports the conclusion in this case that the CID failed abysmally to do that. They failed on every one of those scores. Since 1970, the same prosecution ideas have existed trying to make the crime scene work where it cannot work. It cannot support inferences. It is a house built upon the sand of a chaotic and disorganized investigation.
Why did it happen? I am not in the business here of coming to condemn the CID or anyone else. They did a job. Their witnesses were here and weren't even cross-examined by Defense counsel. Neither Wade nor I asked any questions of witnesses whose testimony seemed straightforward and who seemed competent for what they did. I do not apologize. I don't think any Defense counsel has to apologize for being hard and being critical of incompetence which then is used in justifying to say, "But regardless of all the mistakes we did which altered the crime scene, we are allowed to make deductions and inferences." If we have learned anything from this trial about criminal investigations, it is that you can't do that. An investigator who purports to do that deserves not only my criticisms and condemnations but everyone else who has heard that person.
Now, who were the persons at the crime scene? The MPs at this crime scene, in my judgment, and I think that it is fair inference of the jury to draw the same conclusions, that they were young, were inexperienced, were not professionals in law enforcement. You only saw, by the way, two of them -- Tevere and Mica. Mica had become a Specialist at that time and he had had college training before then, but all we are saying to you is that the first men on the scene were young and immature. They acted, I think, as sensibly as they could.
Thereafter, they were followed by what seems to be innumerable MPs, but yet, we are able to piece together from the evidence of this case about 15 MPs. I am going to show that to you in a minute. What happened there? Because of their youth and inexperience, they also lacked leadership. Who was in charge here? I mean, nothing could point out better the question of the inexperience of these investigators -- these MPs, rather.
You remember the episode when they first arrived at the front door of 544 Castle Drive and they found the door locked. They called back to headquarters and said, "Can we break in?" The cool voice of an experienced person -- a sergeant back at the desk -- said, "Try the back door." That is a good idea. Why didn't they do it? Not because they are bad people, but they just did not know what they were up to. We accept that as a reality. What is unreal is that the Government is attempting to build its house upon the sand of such inexperience.
Finally, they get in. Who is in charge here now? Who is in charge here is somebody called Lieutenant Paulk. I don't remember Lieutenant Paulk's face. I do not remember his voice. The man in charge of the crime scene has never, never appeared here. Without his leadership, without anybody's leadership, what did the MPs do? Go to the house. Tevere has his pistol out -- his revolver out -- his pistol. He has his pistol out and goes down the hall and Mica is behind him. Why? Because they reasonably think there might be somebody else there. What are they looking for at the end of the hallway and down near the living room? Are they looking for threads and fibers? Of course not. They are looking for suspects. Is that the right thing to do? Of course, it is sensible to do. Is it the right thing to therefore conclude later on that there could have been no fibers moved or disturbed or caught on boots or wet shoes marching and coming out to the grass, to the lawn, to the front steps? Is it wrong to conclude that? Of course, that is the wrong conclusion.
There was nothing wrong with what they were doing, though. They were looking for, first of all, possible suspects who were in the house. They go down through the hallway and to the head of the living room and look around and go back. Now, they find for the first time what has happened. Dr. MacDonald has moved -- remember, Mica has said that the first time, they thought the man and woman were both dead -- MacDonald is lying face down on the woman. That is the first time.
Let's leave that for a minute, but we will come back. I want to just talk about who were the people that were there. As a matter of fact, let's do it right this minute if you will bear with me. I want to suggest to you that based upon the evidence of the case, you ought to conclude that the following individuals have been identified as having been at the crime scene and have been through some or all parts of it.
Let's deal, first of all, with the MPs -- Tevere and Mica -- the only two MPs you saw -- the only two MPs you heard from. I suggest to you that the rest of the names that I will call out to you are names that various persons testified remember seeing people there -- Hageny, Caldwell, D'Amore, Selvey, Stokes, Duffy, Dickerson, and Morris -- one, two, three, four, five, six, seven, eight, nine, ten -- enlisted persons.
Who else was there? Lieutenant Paulk, the officer in charge. Who else shows up at the crime scene before any CID agent? We don't know their names -- two ambulance drivers. We now have a dozen people at the crime scene. Then, we have Dr. Neal. The Government did not choose to call Dr. Neal and it became, I am sure, unalterably clear to you yesterday when you heard him why they didn't call him, as he described one of the other major changes in the crime scene -- the movement of the bodies of the deceased persons. These persons were at the crime scene earlier.
Who else arrived at the crime scene? A warrant officer -- Chief Warrant Officer Grebner. Have you noticed his absence -- his name, Franz Joseph Grebner, heard over and over again. Who was in charge here? Mr. Ivory said, "I am only the lead investigator." Who was in charge here? "That is Grebner." Where was Grebner? Why did we not see him or hear from him -- the lead investigator -- the man in charge of the most important homicide investigation the Army had at the time -- where was he?
Who else shows up? The overall Chief of Police at Fort Bragg -- Colonel Kriwanek. Who else shows up? Major Parsons -- his assistant. My best recollection of the evidence -- and you, the members of the jury, have to draw your own conclusion -- is that, if we take the word of Mr. Ivory, that just about everybody in sight was huddled in the corner of the living room or standing outside guarding the front steps or the back steps. The answer is that when Ivory arrived at the scene, there were any substantial number of MPs who had been there before him. There were two ambulance drivers who were there before him because when Ivory arrived, he saw the ambulance drivers taking out Dr. MacDonald through the living room.
Now, what is the effect of all of this? What are we talking about? Why are we making such a point of this? Because, if you can recall, one of the major arguments of the Government is that we don't find fibers here in the living room. First of all, I submit to you that Dr. MacDonald has never said that he remembers hearing a ripping sound of his pajama top. What he has said, and you have heard his testimony and you have it before you is this: his pajama top was grabbed and it was pulled over him as best that he could recall.
Remember, he has never said, "I have a specific recollection. I walked into here. I did that." That is absurd to expect that. It was pulled over his head hockey style in a hockey fight. One player grabs another and pulls it over. He also used the expression, "ripped from him," from which the Government says, "Ah-ha, that means that the fabric ripped." Even if that was so, there are two complete, you know, explanations that are at least as reasonable as what the Government says.
The first explanation is as follows: if the pajama top was ripped down the front where there was not a seam, the only scientist who did a study of this was Dr. Thornton and what did Dr. Thornton say? He would tear the 65-35 fabric on an unseamed part and he had virtually no fibers to fall out. You remember, he did a number of experiments. He had two or three fibers.
By the way, were there any fibers found in or about here (indicating)? Mr. Shaw -- Mr. Shaw, the CID investigator, said that he found near the south edge of the hallway step here three fibers. He doesn't recall whether he collected them or not. The Government says, "Oh, that is not the living room. Ignore that." All right, we ignore that. His correct testimony, I believe, shows that Shaw saw fibers there.
By the way, where was Dr. MacDonald lying after the struggle? Where did he say? On the steps across here (indicating). Is that consistent with where the fibers were found? I think so. I think you have a right to conclude the same thing. Perhaps there are other fibers. What could have happened to them that is equally consistent with the Government's theory?
Please take note, members of the jury, I cannot remember this for you, about the red mark here on the floor. The red mark here on the floor represents Mr. Ivory's marking of the gurney. When he came in, he saw the gurney being rolled down the hallway as he came in the front door with Dr. MacDonald's body on it. What did he see? He drew the line. Where did he draw it? Right across the living room floor and right across the heart of the crime scene. Where else might he expect to find one or two other fibers of the pajama top? That is at least as consistent as the Government's explanation. It is just as rational.
The gurney coming through -- did it disturb any fibers? It had the potential to do that. Did the feet of the ambulance drivers -- the medics -- have a potential of touching, carrying, and transporting on their wet soles the fibers? Of course, they did. That is at least as consistent as what the Government has to say.
What else do we have? At that time, by the way, was Mr. Ivory looking for fibers? Did he know anything about fibers? He is coming in and getting the first briefing. What does he do? Walks right past it down the hallway through the same traveled area.
There is a third explanation. I want to show you a picture about that. Why no fibers, they want to know, besides the fact that the garment -- no one has said for certain that the garment was torn there. If it was, it was torn here (indicating) on the middle part and there would not be fibers. Here, I want to show you a picture that has been introduced in evidence. This photograph is one that was made after Specialist Mica testified.
He described this and pointed it out on the model himself. In your absence, with the agreement of the Court and counsel, we photographed what he saw. This is the man who walked through the crime scene, picked up the flower pot, put it upright, and thereby misleading the CID investigators and Mr. Medlin and others. We will talk about that also. He sat down on the sofa. That is the position where Mr. Mica placed that man. Then, he was told to get up and get out. He got up and walked back across there. Where is that man seated? That man is seated on the middle of the sofa. Is that a reasonable place for fibers from the pajama top if it was torn there? It would seem so. I think you have a right to conclude that.
There is a person sitting on it who has been out in the rain. We would have the right to conclude that he is possibly damp and possibly wet sitting on the sofa. Is he a potential transporter or remover of the fibers? Of course. That is at least as consistent an explanation of what happened to the fibers as anything the Government says. That is the picture taken pursuant to Mica's describing what happened there.
By the way, here is another photograph. This is a photograph that was taken when Mr. Ivory left the room. This is what he showed us in the courtroom. This is the gurney with Dr. MacDonald's body going right across the living room floor and right in front of the sofa. Where? Where the struggle took place and where Dr. MacDonald described hockey-style pulling over of the pajama top or that it was ripped from him.
I do not have to prove that to you. I only point out that it is a reasonable explanation. That does not mean that the Defendant -- that I or Dr. MacDonald have assumed the burden or that the law imposed it on us because we point out to you the obvious explanations for physical facts in this case.
Now, let's go through the rest of these -- well, let's talk about the rest of that living room for a minute. The Government has talked very little about the so-called staging of the crime scene. It was only in the last few minutes of their discussion that they mentioned it. The fact is at the heart of the Government's case that they have to persuade you that Dr. MacDonald staged the crime scene living room.
Why? Because, according to their theory, nothing happened in terms of a violent struggle in the living room that night; therefore, if the CID and the MPs found the sofa overturned, the children's materials here on the edge, the magazine down below here, the mucilage on the floor -- if that were so, then what the Government is saying to you by silence because they are embarrassed and because they realize they cannot persuade anybody of the facts -- what they are saying to you by silence is that Dr. MacDonald staged that crime scene. What a brilliant staging.
There is a photograph here in evidence. I will describe it to you and ask you to remember it. But there is one thing for sure, if I don't come back to it in a few minutes, I pass it not because it doesn't exist so, but I will tell you that I strongly urge you to look through the books of photographs in this case. There are several photographs showing the coffee table on end. There is dangling from one of the slats -- it is there on two or three of the photographs -- a child's drawing in crayon dangling from the slat here in the picture. Now, since it had to be a staged crime scene because the Government says nothing happened here, look at the fiendish plotting of this man -- MacDonald -- that he remembered to put the child's picture dangling in. Why didn't he leave it on the floor? Look for the picture.
The Government doesn't want to talk about the staged crime scene theory too much, for some very obvious reasons. You remember Mr. Medlin -- he is the Chief of the team from the CID Laboratory at Fort Gordon. What does Medlin say? On cross-examination, he said that when he looked at the living room and he saw the flower pot standing upright, what did he conclude in his mind? He decided that that was a staged scene. Of course, we now know that neither he nor Mr. Ivory nor anyone else had interviewed any of the MPs at that time about the movement of the crime scene. Yes, some of the MPs were sent back to headquarters. They were asked what they knew about the crime. Nobody at that point, because nobody was thinking professionally and competently at that juncture, was talking about: "Are there any alterations of the crime scene?"
Remember, members of the jury, when we asked Mr. Mica: "When was the first time anybody ever asked you about the flower pot or about the man on the sofa?" He said, "When I testified at the military proceedings in 1970," and when I as defense counsel asked him about it, it was the first time. It was a thunderclap to the CID and to the Government. It shouldn't have been. Why? Because if they had followed the first principles in investigation, they would have preserved and protected the crime scene and they would have made sure that that crime scene was inviolate.
The one thing I recall and perhaps you recall about the evidence at the crime scene is this: I remember Mr. Ivory saying and Mr. Tevere saying that people kept shouting, "Don't touch anything." Right? We heard it a number of times, "Don't touch anything." They gave lots of instructions to "Don't touch."
It was Professor Osterburg who said kind of simply and made such a mockery of that approach to the crime scene protection of giving orders for that protection. He said, "The first thing you do is that you get everybody out of there who isn't absolutely necessary." Why were all of these men standing around? Why was a man in the living room who could walk from here to there and pick up a flower pot, sit on the sofa where the fibers possibly are, go back across the room, walk across the floor again -- why was that man there? There is no reason except one. They did not understand the first thing about control of the crime scene nor its importance in the eventual trying to work on a solution to the crime to try and find clues that would help us in this case.
Let's just go through the things that happened in the living room. Besides the pot being picked up, the man sitting on the sofa where the struggle takes place, there are the floating clothes. You remember the clothes that were here in some photograph at the end of the sofa and were then on the step at some other time. Again, the Government is pooh-poohing all of that. Why pooh-pooh it? There are only a couple of fibers that are likely to be there if you rip a garment down here or if it is ripped at all. You already have people walking back and forth, the gurney, people going down the hall who have no reason to be looking for fibers. That is not their concern.
Now, on top of that, they are picking up clothing that is either here or there and they are moving it back. What does that do? There is no potential there to pick up a fiber on some of the items that were there? Of course, there is. That is a more logical explanation of what is going on about the fibers in the living room than anything, I think, that you have heard from the Government.
There were other photos we showed you. I am not going to go through it all again, but I ask you to go through your recollections. We showed you photos about the pillows at the end of the sofa. They are not shown here. There is a brown pillow. In photograph after photograph, the pillows are in different positions. We showed you photographs what -- to the shock of the Government and to Mr. Ivory on the stand -- of the eyeglasses lying there, one time lying like this in the photograph and the next photograph this way (indicating). Now, what is the point of that? We are not trying to make a mountain out of a molehill. The case will not rise or fall on the glasses being turned around. The case doesn't rise and fall on the fact that the curtains were moved and in one of the photographs that we showed you about how the switch on the wall of the outlet was covered and in the next, the curtains were moved to some other position. The case doesn't rise and fall on those facts. It rises and falls on what you must conclude happened -- that they didn't understand that the living room was an important part of the crime scene and they didn't understand how to protect it and preserve the physical evidence and the trace evidence in that room. They did not protect this scene and inferences or conclusions that the Government asks you to draw from it are simply unjustified and unfounded.
The last thing about the living room that I will mention to you so that we don't get ourselves forever and ever talking about that thing, but it does seem to me that the missing wallet is an interesting story. I have heard no witness except Mr. Ivory repeating what he heard other people think happen explaining what happened to the wallet in this room.
Mr. Ivory did say that a wallet that was believed to have belonged to Dr. MacDonald was stolen from the desk over near the door. He even mentioned a man's name. There is not the slightest word of evidence to support that. It is absolutely unsupported. We have never heard any proof of that. Was anybody prosecuted for the theft of that? Can you imagine someone stealing an officer's wallet in the Army and not being prosecuted? That is just absolutely Government talk without the facts or evidence to back it up.
Besides that, although, that is what Mr. Ivory said that a man stole a wallet believed to have belonged to Dr. MacDonald, Officer Mica saw a different wallet or another wallet. You remember, we had a little piece of yellow paper put down in that picture. He said that on the floor here (indicating) near the bottom of the coffee table, there was a wallet lying on that floor. It was not shown in the photographs, yet, he saw it. What happened? Again, the case does not rise and fall on that. What does fall on that is the Government's contention that it has a crime scene upon which it can base deductions and ask you to draw inferences and say that they have met their burden of proof beyond a reasonable doubt.
Now, let's take a look at some other parts of the house. I think that it is important to take a look, if you will, with me at the master bedroom. The Government has made its final lunge at Dr. MacDonald today by saying that he ripped off the pajama top in this bedroom, the fibers then fell to the floor, and at some later time, he brings Colette MacDonald's body and lies it down on the floor; and therefore, that is how the fibers -- some of them -- are found underneath her body outline.
The facts that you have heard in this case do not support that theory. There are at least a number of other reasonable inferences. Let me show you some other photographs. Dr. MacDonald has said that when he came into the master bedroom, he found his wife, Colette, with her shoulder propped up against this green leather chair.
If you will look carefully at photo G-43 -- you will have a chance later on -- but you will see again here are the reddish stains against the side of the vinyl chair. It is a little bit difficult because of the color registration, but it is clearly there on close examination. That, as Dr. MacDonald said, is the position in which he found his wife. What did he do at that time? He says that his pajama top was still tangled around his wrists and hands. At that point, he did rip them from him -- although he didn't hear the sound -- he tears them from him because he cannot treat and deal with his wife.
He pulls her away from that green vinyl chair. What he said yesterday or the other day when he testified, six inches to a foot, and then the Government almost leaped through the ceiling -- why MacDonald -- six inches to a foot -- he has never said that before. You don't need to have Dr. MacDonald's word on that score. You have what Officer Mica saw.
Again, when Mica was here, he used the doll-like figures that we had to indicate the positions that he found the bodies on the floor and how they were moved. I want to show to you now, members of the jury, a series of photographs that were taken. They don't do anything different than what Mica did here in the courtroom. They just register and capture the specific moment.
The first photograph shows as Officer Mica initially observed the positions of Dr. MacDonald and Colette MacDonald. That is, that Colette MacDonald was on her back. She was not at that juncture lying next to the green chair, so we know that because of the fact that there is blood on the front of the green chair, that she had to have been moved already somewhat, and that here, he is lying down face down on her.
Here is another photograph which is just merely a close-up of the same positioning of the bodies. Now, if you will look at the scale on this model -- the one inch equals one foot -- now, it is difficult because we don't have a scale ruler down on here -- but looking at the rough positioning in here (indicating) of the bodies as Mica puts them -- not Jeffrey MacDonald -- as Mica would have no interest in this case and Mica who is the person that remained in professional law enforcement sees it -- it is not unreasonable to say that it is somewhere between six inches and a foot.
Now, Mica then further showed us what he did. He got down between the two bodies -- between Jeff's body and Colette's body. You may remember the thing that caused him to come there was a first stirring when Jeff rolled over on his shoulder. That is the first thing that made him think that the man was alive. Here, you can see how Mica placed the figures that were given to him in the presence of Government counsel and the moment was preserved by the photograph -- getting down between the bodies of Colette and Jeffrey MacDonald.
Well, what happened? Jeff's body was already moved. Now, you have a close-up of the same situation showing that taking place, and finally, you see what are Mica's actions in that regard. Mica attempts to give mouth-to-mouth resuscitation. Three consecutive times, he gave mouth-to-mouth resuscitation to Dr. MacDonald.
Let's take a look at a close-up view of the same thing. He is between the bodies of Jeffrey MacDonald and Colette. Look at the position he is in. While there is no specific recollection, and why would anybody think to recall that, I think it is as reasonable to infer that as Mica attempted to tend the only living human being in this house -- to deal with that crisis -- he is not worrying whether or not Colette MacDonald's body -- she was dead then; he knew it then and he said so -- whether that is moved a bit by his feet, by his hip, or his thigh as he gets down and tries to perform mouth-to-mouth resuscitation. There is no reason to think that didn't happen. It is perfectly reasonable to believe that in taking care of this one man -- consider the small size of the rooms here.
Finally -- finally, Mica shows us the ultimate position he had Dr. MacDonald moved in. In this photograph, the body is moved further. What has happened to Colette -- you can still see Colette MacDonald's body -- it is at least six inches to a foot away from where she was originally located because we know the blood stains were on the vinyl chair. All this has happened. What is it doing to the fibers? Why is it unreasonable to accept Dr. MacDonald's explanation? He tore it off, he moved his wife's body. There are a handful of fibers under her body. The majority of fibers in that room are found where? Of the fibers that were collected by the CID, three quarters of them are found outside of the body outline. Remember, Ivory said that there were many, many more fibers that were not even collected. Doesn't that sound exactly like what Jeffrey MacDonald said? He ripped off the pajamas from his arms around the binding and he tossed them away. In that act, if he tore the seams, that would be the only way and only time it could happen -- at that time, there is a profusion and a large number of fibers are deposited on the floor.
The Government says there is only one explanation because they have to prove this to you beyond a reasonable doubt that the fibers were all there and the body was placed on top of it. If you do not find that singular fact proven to you beyond a reasonable doubt, what has happened to the Government's theory of this case?
Let's stay in the master bedroom for a bit more. There is a pile of bedding in the master bedroom -- the bedding from which the Government has drawn so many fanciful inferences. What about the various blood marks they see on there -- the pictures that Mr. Stombaugh has seen in the bedroom?
First of all, where is the bedding seen when the first, I think, reliable observer of the scene comes on. Again, I direct your attention to the testimony of Officer Mica. Mica says that he saw the bedding -- and I am quoting to you to the best of my recollection, but again, you depend on yours in terms of what you think happened -- but my recollection is from the record of this case that he said, the bedding was at the foot of the bed. Now, what do the photographs in this case show?
I show you Government's photograph 211, and then I will show you 210. Where is the pile of bedding? That is not at the foot of the bed. It is next to the closet with the open door. That is where it is. How does it get there? Again, go back to the events as we know them to have happened.
Dr. MacDonald described it -- it is supported by Mica and Tevere -- they all agreed it essentially would happen -- he opens his eyes and looks up and he sees what, a circle of helmets of MPs over him and is wondering what to do, trying to be helpful, excited, calling out, giving instructions; but how could they have been doing that if his body was as Mica shows us in the last of these photographs here. Take a look at this photograph.
Now, just for a moment, if you will, members of the jury, look at where Mica and Jeff MacDonald's bodies are placed. What we don't have shown here -- this is a photograph of where the medics who took the bodies away were -- but what we don't have is a photo because no one remembers with precision exactly where the substantial number of MPs were standing around the bodies. If, in fact, the bedding was there at the foot of the bed as Mica described it, what is likely to have happened to it? Well, one reasonable inference you could draw is that somebody not caring about the bedding, but caring about what was happening to a person, kicked it aside toward the closet. That is a reasonable inference.
As a matter of fact, I think there is more than one reasonable inference. Look again at the same photograph. You see the gurney here. This is where Mica says that the medics came in and pushed that rolling bed into the room. Now, what is underneath the rolling bed? What is underneath is the bedding. There are probably two possibilities -- two inferences you could draw from that.
The first inference is that probably it wasn't there yet, but it was probably over by the foot of the bed and not kicked over there until later on or moved over there until later; or, in fact, that the gurney touched or moved, or the MP or the medics who were handling it touched or moved, these sheets that were over there. Now, apparently, there are no wheel marks on those sheets; but we were told that they rolled this gurney down the hall and rolled it into the room. You remember, there was a whole issue about how they brought it down the hall, and I thought it was interesting myself to realize that they didn't even pick it up and carry it -- they could have. That was probably a little bit more work, a little heavy. We are told that they rolled the gurney all the way down the crime scene hallway. Whatever fibers were still there at this juncture, they disturbed potentially. They rolled it into this room and the picture shows where Officer Mica says that the gurney came to rest.
What does it tell you about the fiber situation? What does it tell you about the bedding situation here? It tells you that anybody who attempts to draw inferences that this crime scene was preserved so we can now make deductions from it is following a path that is going to lead to disaster. You cannot -- cannot make those inferences. The facts are not there. They did not preserve that scene.
What else happened? What else? What is Dr. Neal doing? Dr. Neal came in and said that he moved the body, he moved the pajamas, he lifted it up. You don't need a great deal of moving. You don't have to drag the body around this tiny room in order to understand how some fibers got under the body which did not necessarily have to be under the body when Colette fell to the floor. That is at least as reasonable an explanation as anything that the Government's contrived theory submits to you.
What else was going on in this particular room? Consider Colette's body itself. It is proof, I think, of the total fallacy of wrong deductions from this crime scene. The Government has built a great theory about the pajama top -- the blue pajama top over Colette's body. It stands, I think, on the same kind of sand the balance of their analysis does. Dr. Neal said that the breast -- and other witnesses said -- Mica said that her breast was partially exposed. Now, what does the photograph show in that regard? I want to show you what the crime scene photos indicate to us and compare them, if you will, to, in fact, what the witness is telling us.
Dr. Neal -- what does he say? The pajama top was moved. If you will, members of the jury, take a look at 41. That is one picture of Colette MacDonald as her body was covered partially by the pajama top. That is not the way when Mica was showing it, but he said, "The way I saw it." He described the pajama top being in a lower position. He describes part of the bare abdomen being exposed. There is not a person who saw her body with the pajama top until Ivory, who agrees that that is the position when they initially saw it, but again, from this fallacious photograph -- a photograph which is, I think, unintentially misleading but should not have been misleading if they were good investigators and followed basic rather than extraordinary practices -- they would have learned that this had been moved by Neal and by other persons either unintentially or otherwise, and that deductions based upon that are going to lead to error.
Now, there is something else that the Government spent very little time on in talking about this particular crime scene. It is the fact that on the feet of Colette MacDonald, there was blood. Let's take a look at that again. There is a photograph -- in fact, there are a number the Government introduced -- and we are also -- in the break, I will pull the photograph out and show it to you more properly -- there was a photograph in which the body of Colette MacDonald was turned this way (indicating) and you will see that her feet show clearly blood stains.
How did she get those? What is the Government's explanation? What is their theory? Their theory is that she was carried into the bedroom and deposited on top of fibers. How does she get blood stains on her foot? There are, I am sure -- I am sure that for every alternate theory that I point out to you that is reasonable deductible from the facts in this case -- contrary to what the Government says -- the Government will come back because they have the last say and come up with one more explanation, and I will have and Wade will have no chance to respond. We have only one opportunity to talk to you this time. The Government gets the last say. I want to point out to you -- it doesn't matter if the Government comes back and springs up and says, "Well, we have another theory about Colette MacDonald's foot and the blood." Why? The more theories they have, the more clear it becomes that the five rules by which you will be guided in your decision making cannot lead you to the conclusion that the Government has met its burden of proof in this case.
The five rules will tell you that every time they come up with a change to explain another event because their case is built upon assumptions that are not supported by reality, it is once more proof to you that they have not met their burden in this case.
Now, what about the bedclothes in this case? What about the sheets that we talked about that were on the floor? How did they get to be there? There are at least several rational explanations for that. First of all, we know that they are partially folded back to clear away the large urine stain that was on the bedsheet. That urine stain is not disputed. The Government showed it, the Government concedes it, it is here, we have the sheet, and we know from the size of the urine stain that it required a substantial amount of the top bedding -- the top sheet and the bedspread over it -- to be pulled back. It is a fairly large circle -- probably 18 inches in diameter.
We have, therefore, the first of several, I think, rational explanations about where and how the bedding started on the eventual trip that brought it to the floor. It is folded back by Jeff to air the bedding. How did it get off the bed? There are at least two rational explanations probably as convincing, if not more so, than any theory the Government has offered yet about that. One, that when Colette MacDonald was first attacked in her bed, the attackers ripped it off and pulled it back to be able to attack her body; secondly, that when she got up and left that room -- because I think that the evidence indicates that that is exactly what happened -- that when she left that room, she may have knocked or brushed, in her wounded condition, that off the bed. Mica tells us that that was at the foot of the bed.
Now, what happens to that sheet besides the fact that we know that it had to travel on the floor and that it had to move from the foot of the bed to the position over here at the door and that it may have been moved again by the medical personnel because I don't think they ran the gurney over it, although it is certainly possible -- we didn't see any tire tracks, but that may be very possible and the wheels of the gurney may have gone over it -- what happened to the gurney when the investigators come to it? How do they handle it?
They don't know what is there. They first pick it up and out falls a piece of latex. They then say, "Gee, we better gather it up." So, you remember the famous demonstration of Mr. Ivory and myself and then how he and Mr. Shaw gathered it. I call it the famous "CID clutch" because he showed us how he gathered the sheets together and put it into a bag which I held was smaller than the bundle. It was not a large bag. You will remember that it just fit into the bundle. It slid in and what happened? Where he touched it like this, the sheets are now in changed contact positions. They are fitted into the bag. Then, what did he do? You may recall that he twisted the top and wound up putting it over here (indicating).
Now, what does that mean? You have every reason to believe from all the evidence in this case that the blood was still moist and that the sheets touching each other with the blood on them produced these contacts which account for some of the various smears in there. That is at least as rational as any explanation the Government has offered.
As a matter of fact, the Government's explanation as to these various markings -- the ones particularly that Mr. Stombaugh characterized as handprints -- if there is anything in this case that I think has been disproven by the simple truth of showing you rather than saying, "Take my word," it is what Chuck Morton from the Institute of Forensic Sciences did here in this courtroom -- the demonstration -- when he showed you in the little demonstration here that in fact that there was no cuff print there; it was a contact of a palm print and that Mr. Stombaugh doesn't know when the fibers went off of the cuff and that what you have here are friction ridges that run a different way, you can't call them cuff prints.
How did that happen? Chuck Morton explained that what you have when blood touches and when you have impressions and when you are making contacts that you have a transference process. We did the same thing with the palm prints. The palm prints went this way (indicating) -- the handprints. If you push your finger down, as Chuck pointed out to you, and you have blood underneath, what happens to the fat part of your finger? It squishes the blood out -- it lays it out. What should be there, then, when the fat part of the finger touches? The least amount of blood, because it has displaced the blood and it pushed it out.
What do you have in Mr. Stombaugh's exhibit? The so-called handprint is where the fat part of the finger should be is the darkest circle of imprint and it is like the other way around. Now, you have two choices. One, in which you can say that we have had a forensic scientist who has come in and said, "In order to try and answer the question that has been put before me -- could this be a handprint -- this is what I have done and I show you the process whereby I did it," or you can take Mr. Stombaugh's word, "That is a handprint."
We said to Mr. Stombaugh, "What experiment did you conduct? What did you do in the way of scientific approach or in science as a whole?" He says, "No. I looked at it and I recognized it. I am an impressions expert." I want to say to you that deductions made by the Government from the sheet which is gathered up in the fashion I described with blood on it and which you have a right to conclude was still moist and there is probably the transfer of the contact as the explanation of the so-called Stombaugh handprint, they are not handprints at all. I do not know how anyone in this jury could say that beyond a reasonable doubt, you have seen evidence that overcomes the demonstration that Chuck Morton did that says when the fat part of the finger touches, the blood is least there as opposed to what Mr. Stombaugh showed you where the fat part of the finger should be, there is the most blood there. There is no basis for his opinion. It is sheer poppycock and there is no basis for the jury to consider this as proof beyond a reasonable doubt of that portion of the Government's theory.
Now, let's talk about, if we can, about another room. Let's talk about Kristen's room. The Government, in its final moments of argument, articulates this theory that Jeff MacDonald, for reasons that they do not suggest to you and for motives that are totally unclear and non-existent, as a matter of fact, that is where, we suggest, that the Government suggests there was a struggle and that the pajama top of Jeff MacDonald became bloodied and that was why he had to put it over her body later on and all these things that are happening.
What do we know about the fibers in Kristen's room? We know that the least number of fibers in this case -- the least -- were found in that room. If that was where the struggle took place -- if that is where the pajama top tearing took place, according to the Government's theory -- why are the least number of fibers there? You have to say to yourself, "There is probably another explanation we are going to hear." That ought to give you the answer. The more explanations the Government offers, the more you realize that the rules of law tell you that there is no proof beyond a reasonable doubt of any of what the Government is saying to you.
Now, not only was there movement in the master bedroom of Colette's body -- for all the reasons we have told you -- but there is also movement here for reasonable and understandable circumstances in Kristen's room.
First of all, Dr. MacDonald has testified that on at least two occasions, he went to the bedroom in these kind of hopeless circuits to do something he knew he had no point. He knew objectively that his family was dead, but what does one do, considering what had happened to him and his family, except that not knowing how else to respond to a tragedy of monstrous proportions, he gives mouth-to-mouth resuscitation. Does he move the body? It is clear that he moves the body.
Now, what does the Government suggest? They haven't mentioned it yet, but I suspect that after we get done -- we pointed out to you that they have a theory about this regard -- they will say, "Ah-ha, if MacDonald really did give mouth-to-mouth resuscitation to his family, he would have rolled the children flat on their backs. He would have done it the way we do it in demonstrations, you know, the perfect way." What Dr. MacDonald was doing was that he just put his mouth to his child's mouth and he knew the bubbles that were there. He knew that they were dead. He did not accept the reality. Who could accept the reality? Who could act like a rational, you know, scientist -- a rational person in the face of this?
I don't know what he did and he doesn't pretend to know. Did he move the body? Did he put the body flat on its back and then roll it over again? I don't know. Does anybody expect him to know? Does anyone really care, you know, that this was not a mouth-to-mouth demonstration. You only had to put your mouth there to find that there was air and he knew that his family was dead. He reached under the bedclothes to feel for pulses. Did he move the sheet? Did he have fibers on him? Consider that. Take his explanation as opposed to the ones the Government invents and offers to you.
At the time he went to Kristen's room, he had already been to his wife's room. He had ripped off the pajama top, he says. He had bent over her bloody chest with his bare body. You have every reason to believe, considering what was going on there and having the injuries that he had, that he might have even been sweaty. Put that aside for a moment. At least, we know he had blood on him.
Is it not reasonable, at least as reasonable as what the Government says, that he ripped off the pajama top and some of the fibers adhered to him? Why wouldn't they? If you rip off a garment and a man has hair on his arms -- that would be a woman also, but more particularly a man's hair -- might he not have gotten some fibers there? If he had blood on him, wouldn't the fibers adhere to the blood?
What is so impossible -- what is so conclusive of the Government's theory that makes Dr. MacDonald's explanation totally irrational to say that when he left his wife's room, he had no pajama top on, but who said he didn't have fibers on him from the pajama top? Now, let me just digress for a second because I find myself caught up in this kind of mystique that the Government creates.
He was wearing pajama bottoms also. You have all these charts the Government has pointed to and all of them have this wonderful label at the top, "Fibers that are microscopically identical to what -- Dr. MacDonald's pajama top." You have every reason to believe from the evidence in this case that the pajama bottom was the same pair -- the same pajamas -- the same top and bottom -- the same color -- and that, in fact, he was wearing them when he went from room to room. Were they torn in the struggle? Dr. MacDonald doesn't invent some story and tell you they were. He says, "I don't know -- I don't care. All I care about is that my family is dead. I am trying to figure out what to do. I am confused. I am trying to deal with myself," but he had them on also.
Might they not have also served as a carrier of the fibers -- one fiber brushing against the garment and if there was any blood on those pajama bottoms, the fibers would adhere to that wet. Why is that not at least as rational as what the Government says?
Then, they have more going on. You have Jeff coming to the bed. You have a moving of the body at least twice and some type of mouth-to-mouth resuscitation being given. Dr. Neal comes and he moves Kristen's body radically. He moves the body, and, obviously, the bedclothing with it. There is nothing terrible about that. Nobody is faulting that. What we are saying to you is how can you rely upon a conclusion that is built upon inferences that the crime scene was, in fact, absolutely static and untouched by anybody.
Finally, the movement by the medics. The medics come and they move the sheets, they remove the bedclothes, and they remove the body. By the way, how many medics moved Kristen's body? Well, it depends on who you talked with the Government. Mr. Ivory began with a little demonstration that we had him do and told us about how one medic went to each of the children's bodies and lifted it up and carried it out -- obviously worrying about fibers -- obviously not.
What did Mr. Shaw say? He said two medics went and moved each of the bodies. Why do I dwell on that point at all? First of all, let me just make this passing remark and I will come back to this. If Dr. MacDonald was to have made the same mistake, it would be in the Government's little blue book, he would be yelled at through their contradictions, and obviously, it would lead to the conclusion that Dr. MacDonald was telling a false story; but when Government agents, who should be, among other things, taking notes of what was going on because that is decent, minimal criminal investigation procedure, Government agents who have not been wounded or injured, Government agents who have not had their families wiped out, Government agents who are not suffering in any way in illness or defect or condition. When they can't get it straight about this kind of activity in a crime scene, how are we supposed to get worked up that MacDonald doesn't remember exactly whether he went to the bathroom first -- on the second circuit or the first circuit he went here or there. How can it compare with men who are supposed to be doing their trained best to handle an investigation but can't get it straight whether one medic moved the body or two; yet, they want you to believe it -- and they can't get it straight, however, that nothing was disturbed as far as fibers on the bedsheet and nothing could have happened to the bedclothes to change anything in the physical facts. It is not rational and is not an acceptable explanation; and more important than that, any case built upon such inferences from that scene cannot sustain its burden beyond a reasonable doubt.
Now, let's take a look at the blood in Kimberley's room -- again, we talk about Kimberley's room. There were two visits to her room by Dr. MacDonald. Dr. Neal is involved here in the room in moving it. There are two medics or one medic depending upon whose statement there is there. What is the reality here? The reality is that we are not sure how much there was in the way of movement of this body and the bodies, of the bedclothes, of any fibers, or of anything else that was there, but we are sure of something -- the photographs and deductions do not flow from those episodes.
Now, I want to talk about the blood question. Is there any blood in the living room? Let's start all over now with our circuit now and we will start with the living room. Is there blood in the living room? The Government makes a great to-do. I would suggest to you that probably the largest single crime that they would accuse Dr. MacDonald of is that he didn't die, he didn't suffer enough in their judgment, and therefore, that must lead you to the conclusion that he committed the murders.
First of all, I think the Government's findings are suspect, and you have a right to suspect and may be suspicious of those findings also as to what blood there was in the living room. Now, I don't think there was a great deal of blood because the nature of the injuries -- the puncture injuries with the ice pick were the least likely to produce profuse bleeding. We have learned that from all of the pathological evidence here. There were, in fact, three areas along the sofa wall that Craig Chamberlain went and examined because he believed that they might be blood. Now, this led us to a little scientific, you know, side jaunts about how does one detect blood. Chamberlain said that he used benzidine to see whether they gave reaction. He was asked a simple question that if he knew anything about blood typing, it seems to me, he would have known the answer.
He was asked if benzidine was specific for blood -- that is, it reacts to blood and that is it. If you get a reaction, you have blood, and if you don't, you don't have blood. He said, "Yes."
What was his training and knowledge in the area of blood? When Chamberlain did this, he was fresh out of college. He had a Bachelor's degree, he had eight semester credits in a graduate school in chemistry, he was drafted in the Army, he did eight weeks of basic, and had just finished his six-month course at a CID Laboratory and was on his first crime scene processing.
Dr. John Thornton, a Professor of Criminology at the University of California, testified here that with his experience in processing homicide crime scenes as well as other kind of crime scenes and that with his background and knowledge in the fields of criminalistics and forensic science, that benzidine is not specific for blood -- it reacts to other things. Now, it is clear -- I don't want to mislead you -- benzidine and blood -- it is highly sensitive to blood -- but Dr. Thornton pointed out that there is one more factor that you have to consider before you say that there was no blood there. That is, in fact, that if the quantity to be typed is too small, you may inadvertently conclude that it was not blood when, in fact, it may have been.
Now, the Government's theory that there was no blood in that room is premised on the assumption that Chamberlain was a fully-qualified expert to do blood testing on the crime scene. That is one of the interesting things -- what nine and a half years does to a case. Nine and a half years ago when I saw Craig Chamberlain, he was fresh out of college and fresh out of CID, you know, the six months training, the drug testing, and all the other things they do there, processing his first crime scene ever. And he is, I suggest to you, members of the jury, absolutely flat out wrong with the scientific facts about benzidine. His knowledge cannot be compared to that of John Thornton's.
Now, Chamberlain now has a Ph.D. He just got it last year. He works in a responsible position but nothing to do with forensic sciences. I think on balance, members of the jury, you have a right to conclude that, in fact, the Government does not know, and we do not know, whether or not those three spots on the wall in this position that would have to be more than coincidence right above the sofa whether or not blood ever existed there or not. It is a failure to properly process the crime scene. They keep coming back and haunting the Government's conclusions and opinions about this case.
There was also blood some place else. There were spectacles of Dr. MacDonald found in the room with a speck of blood, but in all these hints -- these dark hints by the Government that maybe he got it the night he worked at Hamlet Hospital. Well, you know, he worked in the hospital and he treated the young lady there and the suggestion was from the question that maybe that is how it got to be there. If anything you have learned physically about Dr. MacDonald is what -- is he a sloppy man? Is he a man likely to walk around with a blood spot on his reading glasses having to read for several hours? It does not seem to me that there is evidence to sustain such a conclusion. It is an equally likely inference in this case that that blood spot is a product of the struggle that he had in the living room. Even if you cannot say that you accept that, you have to say to yourself, members of the jury, that the Government has not proved beyond a reasonable doubt that there was no blood of Dr. MacDonald's in that room.
Now, let's talk about the blood in Kristen's room because there, I would think, is an issue that is worth some understanding -- more so than I think the Government's theory allows. It is the only room in the house where there is a significant quantity of blood of someone else. Colette MacDonald's type blood is found in a significant quantity there as well as in the hallway right outside Kristen's room where there is a bloody footprint.
Every other room in which there is a blood spot found of the type other than the person who lived in that room -- every other room -- I submit to you that there is no evidence to indicate that that blood couldn't have gotten there through either contamination of one of several forms -- in every other room. It could have been by Dr. MacDonald himself as he goes from body to body, bending over and coming in contact with the body that was found, and in going to another room, he could well have been the carrier of the quantity of blood there. Secondly, the weapons used by the intruders are certainly in your judgment potentially carriers of blood from one room to another, and a weapon used to strike and murder one person in this family and then carried into the next room, either used there or present there, is a potential carrier of blood. Thirdly, the very persons who were the assailants in this case -- the attackers in this case -- because the quantities of blood with the injuries that are required and were brought forth on these human beings -- on their person and on their clothes are potential carriers of the blood to other rooms. That is at least as consistent on the facts that you have as any explanation the Government has. But in Kristen's room, I think it would be a proper conclusion for the jury to draw that the quantity of blood there teaches us something -- that Colette MacDonald was in that room and also the picture -- as I will show you shortly when I have a chance to go to those photographs of her foot with the blood on it -- tells us what? That she was walking at some point.
Now, once you recognize that Mrs. MacDonald was moved, the question may become: what are the proper hypotheses or inferences as to how she got there? I think, based upon the pathologist's examination, it would be a fair conclusion for the jury that the first injuries that Mrs. MacDonald received were the ice pick injuries because as far as we can tell, none of them were probably fatal. They seemed to be relatively shallow like this (indicating) -- a large number.
What happens then? Mrs. MacDonald is not disabled and not unable to leave the room. When she is either able to regain consciousness, if she lost consciousness, was she able to move about from the shock of the injuries? What happens next? She races to protect her children. It is a short few steps out to the nearest room.
In that room, I think the evidence will allow you to draw the conclusion that she was attacked by several persons. The evidence of that can be shown the following way. The Government has just argued, and I think it is probably a correct conclusion based upon the pathologist's report, that Colette MacDonald received defensive injuries inflicted by the club at that time, but what were the injuries?
Her arms were broken. Her arms were broken in trying to blunt the clubs. How then did Colette MacDonald receive stab wounds in both arms -- I will show you the pictures in a minute of the wounds -- unless one of two things happened -- either that she was being attacked with two different weapons at the same time, which then she could receive both club wounds in breaking her arms and stab wounds, or the other conclusion that the Government argued is that later on, she put her arm up to ward off a second attack by Jeff MacDonald. How could she raise her arms to a defensive position with two broken arms? How would she be able to do that? Where, considering the other injuries, is the potential strength to be able to raise for a second time the broken arms to a defensive position? I think the suggestion here and the inference here is far stronger based upon the photographs, that Colette MacDonald received both broken arms and stab wounds at a second time. It seems to me an illogical and inconsistent -- not supported by any facts or conclusions -- that she was still able to raise her arms after. Let's take a look at the photos.
Here, the black marks on here, are the marks of knife wounds and incisions that we are talking about on the same broken arms. Here again, on the other side, you can see various marks here that are described by the pathologist as being incision wounds. Finally, in the third picture here of the hand, there is a clear large red incision. How did she get that? Did Jeff MacDonald strike her simultaneously with the club and the knife? That, I think, cannot support the evidence. I think that is such an absurd conclusion. That is so illogical that not even the Government is willing to try to press that further.
Oh, I suppose, given enough time -- another hour -- until they get a chance to speak again, they will have a new theory about how to explain broken arms which have several types of injuries on them, but I submit to you the very fact that they will offer still another theory goes back to the five points of law -- the one that says there is no proof beyond a reasonable doubt that Jeff MacDonald inflicted these injuries upon his wife.
Now, beyond the blood and beyond those injuries, there is other evidence here which is worthy of your consideration as showing that, in fact, deductions of the crime scene cannot be made to support the Government's theory. I am talking about fingerprints, I am talking about wax, and I am talking about latex gloves.
Let me talk about the latex gloves first. You have a clear cut contradiction and a chioce to make in this case between the testimony of Mr. Michael Hoffman and the testimony of Dr. Vincent Guinn. Now, this is not an argument about titles and credentials. It is not a question that you should believe Dr. Guinn simply because he has a Doctorate and Mr. Hoffman does not. What is clear is the comparison as to the way the evidence was approached in this case by the two sides.
Dr. Guinn, unchallenged by the Government because they know it to be true, is the world's leading authority on the use of neutron activation analysis in forensic matters -- legally related matters. There is no question about his credentials in that regard nor about his contribution to scientific criminal investigation.
Dr. Guinn made two separate statements. First of all, he says, "I have looked at Michael Hoffman's data where Hoffman takes a piece of the rubber latex gloves found in the MacDonald home and several samples of the unused latex gloves that were also found in the home, and I have compared them." Dr. Guinn said, using Hoffman's figures of the percentages of the elements that were present, that absolutely in his mind, they show it is unlikely that the samples that were found in the MacDonald house -- the actual package of gloves -- were made from the same batch as the fragment of the latex glove found in the bedroom. Secondly, he said -- the first one is highly unlikely -- but the second, because of the differences in numbers and the amount of disparity in them, that it is not likely that the same manufacturer ever made the packages of gloves that were found in the MacDonald house and the piece of latex glove that was found in the bedroom.
Then, he said, "However, I did my own work and not only did I find that there was this disparity, I found ten elements. The Government did not find ten elements. Out of my own data, I conclude that it is highly unlikely that the samples in the MacDonald home were made from the same batch as the piece of latex in the master bedroom; and secondly, that it is unlikely that the same manufacturer made them."
What is the Government's response? Dr. Guinn literally laid down a challenge from the stand. He said in effect, "I defy the Government to re-do their work and come back and say that I am wrong in my numbers and wrong in my conclusion." What did you hear on cross-examination? "Well, wasn't your equipment a little newer? Wasn't it a little newer?" Dr. Guinn said, "Sure, but that had no effect on the results."
Secondly, the Government now has such equipment. Why did they not do it again? He put down the challenge. That was his choice to do that because the disparity was so clear to him that he said that the Government could not, in fact, show what they contend, that these latex gloves are part of the same batch or came from the same manufacturer as the gloves which were found in the MacDonald house. That is the beginning of the end, I think, of this house of cards and this house built on sand in which the Government says, "All this physical evidence -- if you look at it the way we want you to see it, it proves that MacDonald did it. He had to put those rubber gloves on -- the latex gloves on." It is interesting. Where did they come from?
The Government was so suspicious that these latex gloves were used by Dr. MacDonald that William Ivory had the Post engineer come and dig up those sewer lines leading to the MacDonald house at the same time that Hilyard O. Medlin and the rest of the gang were flushing the toilets down at the house. That is the kind of investigation -- I mean, Ivory had the idea and doesn't seal off the bedroom. Remember, he said -- as a matter of fact, I expected what was going to happen because -- well, they thought that maybe MacDonald had flushed the rest of the latex gloves down the toilet and they were going to dig up the sewer lines -- "Did it occur to you, perhaps, to keep the CID people from using the toilet?" He said something about how they went to CID Headquarters and used the toilet. That is even a little bit ridiculous to suggest. Maybe they went to the Kalin's house next door, but there was no proof of anything.
Then comes Medlin. We asked him. Medlin said, "Sure they used one of the bathrooms in the house." That is the kind of crime scene protection. Let's go past the latex glove. I think the latex glove stands out in bold relief. You have -- I don't know of a more qualified source who said, "You don't have to use my number. You can use the Government's numbers," but either numbers tell you what? These are not likely from the same manufacturer or the same batch. It is just not proven beyond a reasonable doubt by the Government under any circumstances.
What about the fingerprints? Fingerprints would have been helpful. What about the back door? I suspect that everybody here had an interest when they went to the crime scene to take a look at the back door. First of all, I trust you realize that it is not the same back door. The original back door is gone. That bothers me somewhat because the Government has said in this case repeatedly that except for releasing some of the furniture, the house is the same. That door is not the back door -- not the green door that you see in the photographs -- and I really wish the Government would pay attention to the details because if they are going to do a scientific crime investigation and if they are going to make deductions, don't overlook such things as saying, "You are taking off the back door. It is not the same one." What about that back door?
The explanation by Mr. Medlin about seeing prints that were visible and being unable to photograph them and being unable to take the door down just leads you to one conclusion. He was not qualified to do the work he did and that precious fingerprints on the place where it is likely that the intruders came into the house were lost forever because of the way he handled it.
Professor Osterburg went on to say that in his judgment, this crime scene, considering the kind of crime it was, was totally underprocessed for fingerprints. He talked about the door that separated the utility room from the master bedroom. He pointed out how one part of the panel was processed but the opposite side was not processed. The Government makes a big issue. Well, Osterburg said that it didn't make any difference as to which way was faced in or out. They answered that it did not make a difference -- does not make a difference. We don't know in what position this door was when the intruders came in. We don't know whether it was open or closed. We don't know if it was closed to the inside room or closed to the outside room. We don't know whether they pushed it again leaving the place. It doesn't matter because Osterburg tells us -- basic ordinary criminal investigation says -- "Holy smokes, this is a probably entrance and an egressway. If you fingerprint the whole thing, what does it take to do that?" Osterburg says that the entire house could have been processed by one competent examiner -- one examiner, let alone one with an assistant to Mr. Medlin and Mr. Turbyfill -- in half the time that was spent there to do so little of the work they did.
How can one draw deductions and say as the Government asks you to say that, "There is no evidence of other people here. We took care of the crime scene. This is all perfectly all right." They make an inference that they want you to ignore the other possible inferences. It does not support it.
The evidence tells us that here in the master bedroom where the jewelry case appears -- look at the photograph -- in which the missing rings are located or they were last known to be kept and that on that glass top, which Dr. Osterburg says is an ideal surface for lifting fingerprints -- there was something about dusting, but it was not totally processed for fingerprints. It is inexplicable. It is unjustifiable and it can only lead to the conclusion that certainly this house was never processed for fingerprints as it had to be in order to identify the intruders. It would have helped to identify the intruders or to prove in some conclusive fashion that Dr. MacDonald committed these crimes as is suggested.
Let me talk about while we are right here on the subject of the chest with the jewelry box. I heard the Government counsel say this morning, "We only have Dr. MacDonald's word of the two valuable rings" -- the one that the Kassabs asked Dr. MacDonald to retrieve that was a family heirloom and the one that Dr. MacDonald had given to Colette himself -- "the only proof we have of that is Dr. MacDonald's word that they were there in the house."
You have before you one of the exhibits toward the end of the case when Dr. MacDonald testified the Government settled with Dr. MacDonald for these claims of lost property. It says on those cover documents that they discussed this matter before settling with Dr. MacDonald for those rings as well as the other items with two people -- Captain Clifford L. Somers and CID Agent William Ivory. Captain Somers was unable to be here.
He was the principal Government prosecutor at the military proceedings in 1970. William Ivory was the same William Ivory. He was the lead investigator in 1970. Now, they had been through this whole process before of having heard the challenge that the rings were missing, and they, having consulted, agreed that Dr. MacDonald had to be compensated because there was no basis to refuse compensation. Here, nine and one-half years later, we hear the same explanation -- "There is no proof the rings were there." Why did the Army pay for it? Why did the Government pay for it? Why didn't they say, "We resist. We resist. We don't believe you, MacDonald"?
You ought to consider that that is an admission by the Government that that document where they paid Dr. MacDonald and said they talked -- not just a property loss -- but they talked to their criminal investigator and the chief prosecutor and agreed that they owed payment for those rings. That is an admission by the Government that the rings were probably taken that night.
Now, look, I am not suggesting to you, members of the jury, that the motive of this crime was to steal those rings. I don't think that was the motive. We will talk about that motive later at another time. I want to say to you that just because the people did not come into the house with the express purpose of stealing rings, it doesn't mean that the persons who committed these absolutely horrendous and monstrous crimes did not on the spur of the moment see a jewelry case and grab something from it. Yes, there were other valuables in the house. There were other things that could have been taken. This was not a ransacking of the house, but that was a jewelry box sitting on top. It was obvious and in an obvious location. One didn't have to do anything. As a matter of fact, I think the reasonable inference that you might draw is that the woman seen in this case did not have a weapon -- the woman talking about acid -- LSD -- and that in one of those strange and whimsical and unthinking moments removed from the crime scene something of value -- not because she went there with a purpose of stealing it and not because the men went there to steal -- their purposes are different -- but that would be a reasonable inference. Otherwise, why would the Government in having gone through the efforts that the prosecutor had gone to prove the opposite that there were no intruders and then concede, "We have to pay you for the rings because they are not there"?
Now, besides the fact that the rings are missing, besides the latex gloves, there are other fingerprints in this house. There are fingerprints along here (indicating) and in a number of locations which either because they were improperly developed or they were certain that the photographs were done totally inadequately are forever precluded from helping us understand who was in that house. We know further that there was an inadequacy of processing. Here again, there are just tons of photographs.
Look at what Dr. Osterburg told us when he looked at the headboard and the word "pig." Of all of the obvious places in this house, that should have been dusted from one end to the other even if it seemed at that time unclear why. How would Mr. Medlin know that perhaps the attackers didn't come the other way? Medlin didn't have to know anything except that this was a crime scene where some stranger apparently wrote "pig" in the blood of a human being. Medlin didn't even dust fully on the edges around here and did not dust around beyond the immediate area, and we lost totally in a critical area the possibility of retrieving fingerprints. What does that say to you? It says, how can you conclude, members of the jury, that the Government met its burden of proof -- the one that lasts from the beginning of the case to the end -- beyond a reasonable doubt?
What about the hallway -- what about the hallway? You remember the little scene that we have again with the gurney. The gurney is 22 inches wide. The hallway is 36 inches wide. That leaves us 14 inches. Remember how Dr. MacDonald's body was moved down the hallway -- one man at the front of the gurney and one man at the back of the gurney and one man to the side of the gurney. I submit that you have a right to conclude that the man moving along the hallway wall with that space -- 14 inches there -- with the gurney in a collapsed and lowered position which meant that in order to assist in moving the body, the person that was bent over, that man, in trying to do something helpful, nevertheless, raised a potential of destroying fingerprints in that area. Of course, we don't even know whether any fingerprints were even smeared there because Hilyard O. Medlin did not fully process that hallway from end to end. There was selective processing for no ascertainable reason except that he had made a prejudgment in this case and he had made a decision that there were no intruders and that he had made a decision that he was not going to process it because he, Medlin, saw the flower pot stand upright in the living room and decided that was enough to convince him that it was a phony crime scene and there were no intruders.
Now, beyond that, and there is more sadness in the way this was handled. What about the blood that was not even identified? Yes, there were items of blood that were found. Dr. Thornton testified here that in the children's rooms he observed blood which had not been processed nine and a half years later. Now, I don't know that that would solve the case one way or the other. That is not the point of saying that. That is not the point of what Dr. Thornton pointed out to you. What he is saying is deductions and inferences from an improperly processed crime scene, and that it cannot support the conclusions that the Government has.
What about the hairs and other trace evidence here? I don't know whether anybody here has had any experience of owning a horse or pony. How many horse hairs were found? One. As a matter of fact, they quoted that one human hair and one horse hair was found. What does that tell us? The family had been out repeatedly to see the pony and back again. What does it say when they only found a singular horse hair -- that they by no means processed all of the places on the floor where these people were moving and where they were about and where they kept their clothes. They processed selectively. They looked in certain locations. Again, Osterburg says, "In four and a half days to process this crime scene, you should have every single piece of trace evidence -- every single piece of that physical evidence found and located in that house." It is inexcusable. It is a product of a select division -- we collect what we want.
Now, let's talk about the Government -- I want to talk now about this theory that we heard this afternoon about the body carrying around -- this musical body of MacDonald striking them with a baseball bat. He would have hit Kimberley with one blow and that the other blow was against Colette. I want to ask you, members of the jury, if you have heard any evidence in this case that in considering the location where Colette's body was found and considering where the one can reconstruct this -- by a scientist, of course -- and considering where Dr. MacDonald should have been standing to meet the theory, was that club long enough to reach back to where Kimberley MacDonald was? Just stop and think about that. They say, "While he got her here and the child there and the adult there," is it possible? Where are you hearing that for the first time -- from a witness from the stand or from someone who has done a scientific reconstruction of the crime of the position of where these things could have happened? No. You are hearing it from the advocate of the other side of attempting to put together a theory for which there is no substantial credible evidence.
If Dr. MacDonald carried his wife from Kristen's room with the sheet, as they suggest here, and the bedclothes, why are there not more fibers and threads on that sheet? As a matter of fact, there were no fibers and threads on the sheet, if he is supposed to be carrying her with that sheet. Why, if the pajama top was torn in Kristen's room, does it have the least number of fibers and threads? Why are there none on the floor in Kristen's room? Now, contrary to what the Government has said repeatedly -- where they said, "Why doesn't MacDonald explain all these things," the answer is Jeffrey MacDonald is not responsible to answer any of these things. As a matter of law, that is not his burden or responsibility. But more importantly, there is the matter of logic. How is he to explain matters which could not possibly have been of any importance, such as where he had a fiber on his hand or garment, where he was when he tore a precise piece of fabric from his body at a given time?
The matter of this moving of the body again with the sheet: if, in fact, Colette's body was picked up with the sheet or the bedspread that we have here, why are there no smear marks of blood? Her quantity of blood in Kristen's room is substantial. If the sheet is put over here and in some fashion around her, why are there no smears on the floor, why are there no smears on the sheet in the gathering up of the body? Why did that not happen? Again, I am sure that the Government will have another theory about that.
The last thing I want to deal with about the Government's physical evidence is the only really new presentation in the case. Witness after witness that you have heard and saw in this case have all told you how they testified before in 1970 -- nine and one-half years ago in the military proceedings. Nobody has any new physical evidence in this case. What we have is Mr. Stombaugh's interesting testimony -- not new evidence and not new physical facts -- but what he has done in the case.
I would like to start with the display right here because if anything tells us about the limitations to determine the value of Paul Stombaugh's testimony, it is this particular display (indicating). It is the 48-into-21 holes demonstration. First of all, let us take him at his sworn word in front of the grand jury. What does he say he did? "So, it led us to believe quite possibly that maybe she was stabbed through the pajama top. What we did, we re-folded the pajama top exactly as it appears in these pictures." Your own eyes tell you that Stombaugh never, never did what he said in the sworn testimony at the grand jury. Of course, when he came into this Courtroom, that is not what he said.
He backed away so fast from his sworn testimony that it should have been an embarrassment to the Government. I cannot even tell you to this day precisely the words that he used to explain the "approximation -- proportionate -- we turned the sleeve inside out" statement that he made. The answer is -- take a look, if you will, at the bottom display. I've taken the grids off so you can see the use for identification.
Members of the jury, Stombaugh's first and last failure is the fact that he didn't do what he said. Those are his words. That is not the Defendant's lawyer telling you to say that. That is not the Defendant. He said "exactly." And it is absolutely absurd. It is absolutely false. It is absolutely incredible. Compare this display with that and you will recognize that there is no substantial similarity. Compare this display with this one here made in 1974. There is no substantial similarity. Look at the layering and the turning of the fabric. Look at the position over here. What are we talking about? I mean the fact that we are devoting five minutes more to this is to say that we are going into an absurd situation where someone says something that is not so because we did it exactly -- our own eyes tell us that it is not the same thing and that we continue talking about it. I submit to you that nothing more need to be said about that display than what is said to you by your own eyes looking at it.
Now, the second point. If you fit 48 into 21, what does that mean? Did you hear anybody who was a scientist in criminal cases -- forensic scientist or criminal -- say to you that it would be a valid way of determining whether or not Mrs. MacDonald was stabbed through the pajama top to line up the fabric over the holes of the body and come up with 48 to 21? No. No scientist -- no scientific criminal investigator ever asked that ludicrous question. Who asked it? That lawyer and another lawyer asked the question. I said to Stombaugh, "Well, didn't you question the fact that you weren't going to also have the pink pajama top underneath it also?" He said, "No." "Well, didn't it worry you that any kind of inference that one would draw would be totally invalid because of the fact that the way that Mrs. MacDonald's body was found -- the way Colette was found -- in a pajama top of her own and in blue pajamas and holes -- that is, you have got to make them all fit together?" "No." "Why?" "That is what the lawyer -- the partisans for the other side -- asked me to do, and Shirley Green and I produced it." That is not scientific evidence. That is sheer fakery. There is no basis for that.
It gets worse -- it gets worse. Stombaugh testified -- contrary to my recollection of what the Government said -- Stombaugh testified that he identified a certain number of holes as being exit holes in the pajama top and a certain number of holes as being entry holes. John Thornton testified and the Government never called either Stombaugh or Shirley Green back to deny it that when they did -- that was following Shirley Green's notes -- that she used exit holes and entry holes and exit holes and entry holes and totally disregarded the principal finding that he made. Yes, Stombaugh did not identify every hole as entry or exit holes, but a dozen of them, he did.
Shirley Green did not follow his findings. How in the name of heaven and rationality or justice are we supposed to say that you should draw any kind of inference from a demonstration that demonstrated nothing in the first instance, and in the second instance, to state that it is false on its own terms. It doesn't do what it says it does. That is not the worst part of it yet. It is not the worst of what they have done here.
The third and final coup de grace of this piece of pseudo-science is the fact of -- I asked Ms. Green, "When you did this, did you bother to check as to whether or not the hole on the top..." -- you may remember those drawings -- considering the diameter of the holes -- the holes are not all the same because an ice pick doesn't go all the way into all of the holes because sometimes the front part of the ice pick or if the tip goes in which is a narrow diameter and sometimes up to the hilt -- I said, "Well, then, did you bother to account or tell us whether or not when you put one of your little pieces of wire through it whether or not you were putting a small medium size hole or a large size hole and a little hole together? Did you even bother to check? Why?" She never answered that question. "Well, nobody ever asked me to do that." Now, that is supposed to come to you as part of a scientific deduction in this case to lead to this theory that Jeff MacDonald stabbed his wife in some pointless and absolutely motiveless -- absolutely ludicrous statement that he stabbed through a pajama top, putting aside that there is no explanation and no rationality to the whole idea.
On every basis you can think of, it is a fake. Now, those are not easy words, but you ought to draw a conclusion. They did not in any way come back in here and say, "John Thornton made a mistake. John Thornton did not understand what Shirley Green did." They did not because they couldn't. This piece of evidence strikes me as the clearest singular example of the distortion in the name of pseudo-science done by the Government. It is an example of a demonstration which no scientist says could prove anything valid. No criminalist says that is the way we understand the thing, done for lawyers and not any finding on precept and they trot it in here and the Government has the gall to stand here and say, "Members of the jury, convict MacDonald of first degree murder. We have proved our case beyond a reasonable doubt. We are going to show you this whole story about how the pajama top got holes in it." It is not true. That is beyond my belief how responsible advocates could even do that.
That is not the worst of it. There is more. There is more. The impressions. Stombaugh taught us one thing. We had a very interesting discussion; didn't we? You and I can see what he saw. He never even used a scientific lens and he never even used a magnifying glass. His impressions analysis was eyeball analysis. When we went through it, he said, "Yes, the jury can see it." I ask you, members of the jury, to consider what Stombaugh said is supposed to be a sleeve compared to what Chuck Morton said.
You have this demonstration before you. You see how it was done. I only suggest to you that the rationality and the clearness of what was done is such a contrast to what Stombaugh said as "Take my word. I am an impressions expert." By the way, what is an impressions expert? He testified in 300 cases, he said, some of which, not all, hairs would be apparently his work and some of which he could recognize a hair as an expert in impressions, so he says.
"Mr. Stombaugh, would you tell me, please, the last case in which you were recognized as an expert in impressions?" "I can't remember." "Well, name me one case that you have ever testified as an expert in impressions?" "I can't remember." This is the same Paul Stombaugh who came into this Courtroom as the former head of the Chemistry Section of the physics and chemistry branch of the FBI, the man who got on the stand and said, "Yes, when I was at the University, I minored in chemistry." That was a very minor minor, because his transcript shows that he minored in physical education and his transcript shows, can you believe it, that the head of the chemistry section had a single course in chemistry in his years at the University. He had one other course in physics which he got a "D" for.
MR. BLACKBURN: OBJECTION.
THE COURT: Yes, the jury will remember what the testimony was. I think the OBJECTION to that question was SUSTAINED as the Court recalls it.
MR. SEGAL: Well, members of the jury, that is up to you to recall the qualifications of Mr. Stombaugh. One thing that is probably beyond any doubt is that he never had another University level course after he left the University. He said that from the time he left college and graduated with a Bachelor's degree, he never took another course. That is the person who comes in here -- none of what he has to answer anyway -- he comes in here and says, "I am an eyeballer. I am an expert eyeballer." What can he see that you can see as well as he can? What else did he say?
You remember the situation where he says, "This blood stain was made after the pajama top was torn"? The story is interesting for this point also. I said, "Do you mind showing me, please, where exactly -- do you mean these lines took place before or after? Show me?" He stared hard and he circled it red for the Government and yellow for me. We all stared at it. It is one of the exhibits that we have lying around here. I said, "I can't see that well. There is some better way." He said, "Oh, a light box." Lo and behold, he produced the light box for us. Take the pajama top and put it on and what did he show us? He looked and he looked and he said, "I can't see."
Now, that is the kind of evidence that you are being asked to say that Jeffrey MacDonald is guilty beyond a reasonable doubt. The presumption has been stripped from him. That is the new evidence. That is the difference between 1970 and 1979. Paul Stombaugh and Shirley Green coming here and doing sticks and coming here and doing their impressions and coming here with just unbelievable and incredible and unsupported opinions, none of which they have ever performed any demonstrations or experiments on. What is scientific method? Remember, we asked Shirley Green, "What is scientific method?" Her response was, "Doing things a scientific way." That wasn't meant to embarrass her, but it was meant to show you that there are scientists who know something about criminal investigation and the solutions to crime.
Now, you saw something from Vincent Guinn, John Thornton, Chuck Morton, and James Osterburg. Now, the United States Government, the prosecutor's case was not short-handed. If they thought they could find somebody who could back up anything that Stombaugh said, back up an experiment invented by two lawyers -- I dare say they have spared nothing else in this case, the Rolls-Royce of all models, the best of all photographs -- where was it? The answer is that it doesn't exist. It doesn't support their conclusion in this case.
One of the terrible, terrible things about this theory is that they ask you to put aside your common sense. I want to just run through for you now this time frame sequence of the activity that in the last 15 minutes of the Government's speech, they said Dr. MacDonald did not account for.
We know that the persons involved -- Colette, Kristen, and Kimberley -- died about 3:00 o'clock in the morning. That is what the two pathologists tell us and it is as close as we can get to it. We know that at the other end of the time frame around 3:40 or 3:42 a.m., there was apparently the call to the telephone operator as to help wanted at the MacDonald house -- Jeff's call to the operator.
Somewhere in the 42 minutes, this is what had to happen. First of all, he had to run around and move the bodies. He had to run and get the bedclothes in the master bedroom. He had to move Kimberley to her room. He had to get the blue pajama top and put it over Colette and stab more holes in it. He had to get the white Hilton bathmat and put it over her. He had to run to the living room and stage a crime scene and make sure that the picture by the child was hanging out from the coffee table. He had to race to the back door to get rid of the weapons. We will talk about that one, too. He had to wash up in the bathroom. You know that happened. He had to get the surgical gloves and write "pig" on the wall and then do something with the balance of the blood, then stab himself, call for help, give mouth-to-mouth resuscitation to his family, and concoct in the meanwhile -- he did all of that in this time frame -- this whole incredible fantasy that they call a case. It ought to make everybody angry that nine and a half years after the facts, this is what is being offered in the case today. That is just beyond belief.
When did he concoct this? When did MacDonald do this? In his rage or in his calmness? Before or after? Well, I don't know. I don't know where in their theory they sustained that -- certainly not sustaining it beyond a reasonable doubt. How could anyone stand before you and say that, "I, as a legitimate advocate, can call upon you to render a conviction in this case on that kind of evidence"?
Are the facts consistent to Jeff's story? I think there are lots of facts. I told you earlier, I think, what I think the reasonable conclusions could be about the living room and the fibers or lack of fibers there. It was a tear down the center and you know that there were very few fibers -- two or three. You know all the things that went on here, and I don't have to berate that again. We know most critically that no one ever disputed that Jeff said that he fell here (indicating) at the steps and that is where Shaw found fibers. That is an appropriate place. It is consistent with what he said. We know there could have been more there. We know all about the people that were in the house. We don't have to go into that again.
There is no reason to think that Jeff MacDonald was faking his wounds. The doctors have testified in the case -- the ones who have been asked questions -- saying that the ice pick wound that caused the collapse of the lung was a life-threatening injury. One of the most important things is that at no time has a single witness that has been called by the Government and the Defense ever said that Jeff MacDonald exaggerated his injuries. No one ever said that they thought he was faking or making a big deal out of it. As a matter of fact, there was a lot of expression about his kind of saying, "Gee whiz, it doesn't seem like very much, does it?" Understand the reaction of having seen your family in the horrible slaughtered condition that this family was and then looking at one's self, but in all those injuries, nobody believed that he was putting it on and no one believes that he was trying to get sympathy or some kind of feeling for an injury. No one believes anything but that he was reacting rather responsibly. Did he fake it? Did he fake his symptoms when Mica came there? One of the interesting points is that Ken Mica said that when he found Jeff MacDonald lying on Colette's body or next to the body, his teeth were chattering. One could, if one was so inclined, say, "Well, that is fakable. One could fake that kind of phenomenon. That is certainly not beyond your ken."
What else did he say? The unfakable fact that his skin was cold. I went to some great pains to ask later on of Agent Shaw of the CID about the temperature in the house. You may recall that. He said that it was about 75 degrees. You have here fairly solid evidence in which you can conclude that the injuries were not exaggerated or not faked and that the coldness of the skin was consistent with the nature of Dr. MacDonald's condition and that the house would not have been a source of that because the house was warm according to Agent Shaw and that nobody ever said that Jeff tried to make a big deal out of his own injuries.
Then, what happens in the hospital? The Government claims, "Well, the hospital didn't really get worked up." Well, there they got upset. Merrill Bronstein, a friend of Jeff MacDonald, said that he responded more to the trauma of the loss of his family and went home later on to see the whole family that morning and changed understandably, but what happened in the hospital was that Dr. Jacobson first did a seven-to-eight minute examination of Dr. MacDonald.
Jacobson's examination in which he did not see all of the head injuries that had been noted by other people and then was passed over to Dr. Gemma who put the tube in. Gemma says that he did not re-examine Jeff. He took what Dr. Jacobson said. How long did Jacobson have with MacDonald? He says seven to eight minutes.
From that beginning point, the Government will argue consistently that MacDonald didn't have all the injuries and that in a seven-to-eight minute work-up, that was enough to note every injury. Here, Dr. Jacobson, among other things, giving a sleeping medication and a sedative to Dr. MacDonald with a head injury. Everybody raised their eyebrows when they heard that. Whatever was going on, we know that the medical records at that time can't be the base of what the Government can successfully argue to you, that Dr. MacDonald was exaggerating the injuries and did not have, as was testified here to the horns and major wounds were testified to here and the injury to the rear of the head -- three head injuries -- rather than as shown by the lesser number as shown in the medical charts. The medical charts reflect what happened. There was distress. There was considerable personal concern for the safety of one's own family in the hospital. There was one work-up and not one of these doctors, either Jacobson or Gemma, ever re-examined MacDonald when things were more calm to see what did he have -- two injuries in the front and one in the back of the head or did he have just the single head injury that was observed by Jacobson in the beginning.
One last thing that I want to point out to you about that is what did the Special Forces psychiatrist, Dr. Rider (phonetic), say in the medical chart? He didn't testify personally, but it is a part of the record of the case. When he saw Dr. MacDonald, Dr. Rider said in a kind of cryptic medical language that tells us so much, "Normal grief process." Those are the words of the medical record. It is not the kind of evidence to support the conclusion that Jeff MacDonald was faking, faking his feeling about his family, faking about his injuries. What it supports is the opposite conclusion and inference that the Government's case is built upon sand -- a house built upon sand.
The Government wants you also to consider the fact that the family is totally destroyed and Jeff has relatively and undoubtedly small injuries in contrast. His crime, as I said, is that he wasn't hurt enough and that he should have died.
As a matter of fact, if he had done all of the things he did and then died from lack of attention -- they never come there -- then the same physical evidence there exists. Think about that. If he had done all these things that they said he did and had died, the CID would have come there and they would have found the same crime scene and what would they have concluded then? Murder-suicide, alien intruders, or scratched their head and not know what to make of it because they don't have an easy and handy suspect -- one of the proper problems for circumstantial evidence.
You can look at it and stare at it all day long and draw all the inferences you want. You can draw conflicting inferences. The physical facts don't speak. It is the lawyers who speak about it. I suggest that these facts do not speak in any way that allows you to draw a sound conclusion beyond a reasonable doubt.
Why did not Jeff MacDonald have more serious injuries? The Government wants to know, demands to know. There is no burden to answer at all. I'll suggest just some reasonable hypothesis. First of all, this was the only male in the house -- the only strong physical person. Who did the attackers deal with? They slaughtered a pregnant woman, slaughtered an almost six-year-old child, slaughtered a two-and-a-half-year-old child. They were easy prey. A series of things happened that saved MacDonald's life to make him prey for the Government's counsel.
First of all, he was a strong man. Secondly, he was the only person in the house in a position where he was somewhat protected by the placement of the furniture. Where you can see in the master bedroom coming in through the door here (indicating), there was no interference coming straight to the bed to attack Colette MacDonald. There is no interference in the other rooms. Here, with Jeff's head at the far end of the wall, the coffee table in place, what do you have here? People standing at the head. The first thing that stopped them, then, is that there was no immediate quiet, stealthy access -- number one. Number two, this is the only person in the house who was warned that there were assilants there. The cry of Colette, the cry of Kimberley gave the warning to Jeff MacDonald. If the others had been warned, perhaps the noise and perhaps the excitement and perhaps the turning on of lights might have changed the day, but they had no warning.
Because Jeff had the warning, the cries from his own family, is that to be held against him, the fact that he is a man and he was defending himself, that is held against him, and you are asked to draw the inference that this is fakery on his part and it is concocted and it is evidence beyond a reasonable doubt from all those points.
Now, why was he not killed by the attackers? Why did they leave him to live and identify them? First of all, there was a struggle. There is furniture turned over. There are people now -- there is action going on. There is a pulling and tugging and heaving and hoeing.
The woman is saying, "Acid is groovy." We are talking about LSD. If none of you have any knowledge about it, you certainly heard from Dr. Hughes yesterday. No one quarrels with Dr. Hughes' description of the mental state of people on LSD. Certainly, they can do all these physical acts. There is no question about it. What is their mental state? Paranoia? That is, all of a sudden, you hear a noise and all of a sudden, you hear a struggle and now you -- there is concern. Are the voices there? What else is going on? There are all of these possibilities that occur because you are an unstable and unpredictable person. You are on drugs. That is a reasonable inference for you to draw from the case. Why would they not want to get out of there as quickly as possible, having met the first real resistance in this case?
Finally, about Jeff's wounds, and I say that because they speak for themselves. I don't say that they are more or less than what they are. Those are the injuries he sustained. They are surely painful to a man to be in his home where his family was destroyed, and, in fact, in contrast to have survived them. That is enough.
His injuries did take place. The puncture wound to the lung was life-threatening. There is no exaggeration. What does the Government say about the wounds? That Colette scratched, perhaps, Jeff in this faked, made-up struggle for which there is no basis. Well, where was the appropriate scientist who came in here and told you that? An advocate for one side -- a lawyer came in and he said that in his pseudo-opinion that that is what happened. But you, members of the jury, are required to find the evidence to support it and find yourself persuaded beyond a reasonable doubt before you accept it. I suggest to you that it is just simply inconceivable with anything here on the record to support that conclusion.
Now, the Government premises its case about all of this physical evidence on Dr. MacDonald's statements. We have statements in this case to a rather substantial degree of the Defendant. Here they are. I don't want to harp on this, but I think it is fair. I am sure that all of you have heard from time to time persons involved in criminal investigations refuse to testify, and probably, like most people, you simply think, "Well, the person must want to hide something." You have seen an extraordinary case. Here is Jeff MacDonald who has never once refused despite all of the circumstances and has never once refused to talk with anybody in an official investigative capacity.
In April 6, 1970, he was warned by the CID and they gave him the Miranda warning and talked with him several hours despite that. At the Article 32 proceedings, he was not required to testify. He testified at length there. Then, in 1971, when he was out of the Army and honorably discharged, the CID was cranking up a second investigation and they come to him again and warned him of his rights and he talked again.
Then comes the grand jury. There were three volumes, six days of MacDonald trying to talk sense with Government prosecutors who are determined to do anything but sense. What did they do? You can just picture them going through and looking for something, looking somewhere, trying to find it, "Ah-ha, we have got something. We have got a case. We have got a word. We will use it against MacDonald. Put it in the blue book." They put together out of all these statements which when you heard, I am sure, the other day in Court, you must have wondered what is anybody saying that is inconsistent? They have got lots of copies of these and you can read them if you want. I am not going to go over all of the statements. I think they stand for what they say.
They say the following. "This is the best recollection I have. I don't remember all of the events." God, does anybody honestly expect you to remember them all? "I will try to corroborate them. I think this could have happened. You asked me about this. That is possible, yes." Nobody -- very few of the things that Jeff has said about the events of that night are etched in granite so that you may say they either are or are not. You will remember that the episode took a matter of seconds. The fight in the living room was a matter of seconds. The rounds through the house took seven to eight minutes.
The first significant question -- the first question by Mr. Caverly of the FBI in the hospital -- he asked to put it all in order and said that he was not coherent, which means he was not logical. You know the amount of medication that Jeff had. I don't have to go into that. You know what the effect of the medication is. Six weeks later, finally, the CID gets around to the matter. They want to talk about what? The assailants? No. Have they ever asked MacDonald to come look at a lineup? No. Look at any pictures? No. They wanted to talk about which room first. Where did the tear take place? From there on, you have this kind of track record of going and picking and hunting and finding, and after nine and a half years of voluntarily testifying -- submitting to pictures, give hair samples, do every damn thing they ask for -- and they come up with this. They said, "Here are the precious words that show MacDonald is inconsistent." What will it be?
If you care to, members of the jury, I submit that you heard all of those words read to you here in the Courtroom out loud. I do not believe that you have heard anything beyond a reasonable doubt that shows significant inconsistencies. What you heard was "could have been" and "it's possible." I've never pretended to know and what I even expected to know about the trivia that they want to build the case on. I want you to contrast something.
I now ask you to bear with me because I want to ask you what do you have to say about the following inconsistencies by Government witnesses? If you hold Dr. MacDonald by the standard which the Government counsel says, "You must be precise about the seconds of the fight and the seven-to-eight minute tour of trying to treat your family and your own injuries." You are only interested in getting your family together and getting help there. And if you hold Jeff precisely to what he said, then what standard to you hold the Government witnesses?
Mr. Connolly -- what did he say? He testified here, "I found the knife in the master bedroom." The trouble with his testimony is what? Mr. Shaw found the knife in the master bedroom. When cross-examined by me about that, he said, "Oh, I handed the marking pen to Shaw to circle it," but his report -- his sworn CID statement said, "I found the knife in the master bedroom." What shall we say about Mr. Connolly? What shall we say about him? Apparently, the Government says nothing because they don't hold him to any standard. Only Jeff MacDonald gets held to a standard from seconds of a fight to minutes of trying to deal with his family.
Mr. Ivory testified that he named for us all of the people who came to the house. Remember, I said, "Who else was marching through that crime scene?" My final question to him was, "Anybody else?" He said, "No, that was everybody." He was indignant and really irritated with me.
"What about the chaplain?" Why didn't we hold Mr. Ivory's statement to the same test? You must always be correct. Ivory is supposed to have notes and everything else, but he falls flat on his face. He doesn't even know the people at the crime scene down to the chaplain.
Stombaugh -- why don't we hold Stombaugh to the same standard? He said to the grand jury under oath and it is exactly the same in here -- "it is proportionate" -- "We turned the sleeve inside out." By no means, does he claim exactly. What should we say about Mr. Stombaugh's testimony?
Ms. Green's testimony -- "I followed Stombaugh's findings about entry and exit holes." We know that is not to be so either. I think it is a reasonable conclusion for the jury that Dr. Thornton disproved that beyond any doubt.
"The crime scene is not disturbed," and picture after picture shows you while he is in the house, in charge, that pillows are moving, the glasses are turning, and things are not staying the same. Is the standard that you hold Mr. Ivory to the same as that of Dr. MacDonald?
Mr. Caverly, a minor matter, but only because of the significance of it to point out the double standard. None of these people suffered injuries or stress but are professional investigators with notebooks supposedly. Caverly, for some reason, is just fixed on the idea the first time he saw Jeff in the hospital was at 2:25 p.m. The nursing notes which are in the record say that the investigators were there at 1:45. Now, Caverly had no notes. They were all burned because that was the old FBI policy -- to burn the notes.
Nine and a half years later, he cannot shake 2:25 and will swear by it, but the nursing notes will stand forever. They state he is wrong. What shall we hold Mr. Caverly's standard?
Mr. Caverly -- "One medic rode with Kimberley and Kristen." Mr. Shaw -- "Two medics rode with Kimberley and Kristen." What is the standard? My last question: "They put both children on the same stretcher, right?" Mr. Ivory perceived when we developed that point that there was the possibility of contamination -- physical evidence and contamination when the two children touched. Mr. Ivory said that they did not touch.
Mr. Shaw, later on, said, "Yes, I saw the bodies and they did touch." What standard do we hold the Government witnesses to about their conduct -- professional conduct -- investigative conduct and then to stand here and say that they are building their case around the inconsistencies allegedly claimed to be of Dr. MacDonald? That is just simply not conceivable to me that the jury can find beyond a reasonable doubt that: one, that there are, in fact, significant inconsistencies; two, that there are matters which are understandable and rational and that no reasonable person given the circumstances would be able to answer these things; three, do we not give Dr. MacDonald credit for at least being open and willing to talk in spite of it to his accusers year after year after year? It was a vain hope and bad advice, I think, that perhaps if you talk sense to people, they will believe sense.
The Government has done a great deal with the pictures of the wounds of Dr. MacDonald taken in 1974, during the grand jury. You remember that you have got those pictures around here and we have got Dr. MacDonald pointing here, here, here, and elsewhere (indicating). They want you to stare at them. I don't know what is to see there. More than four and a half years after the injuries, what did they expect to find? I mean, first of all, you should get to the fact that they were given voluntarily. Jeff could have said, "No way. You will never listen to sense. You want me to answer your unanswerable theories," yet, he submitted to that process. Those are not the only things that are hard to see in this case. That is, to see four and a half years later the injuries.
What about Mr. Medlin? The invisible ridge lines on the footprint on the floor. Why are we not holding the Government with its witness, Mr. Medlin, to the same test? Why should we believe Medlin for a second that he saw ridge lines on the bloody footprint on the floor and that those ridge lines in his mind were capable of being compared and identified as Dr. MacDonald's? Nobody else saw them. Why weren't they photographed? Absolutely no valid explanation. Dr. Osterburg [sic] has made it clear that anything that you can see with your eyes, you can photograph unless you don't have the competence to not only photograph but to do the job as a fingerprint examiner. Let's hold Medlin to the same standard. Invisible evidence? He can't even get it sawed out of the floor to take it back to Fort Gordon where maybe they could do something with it without it falling apart on him. Why don't we hold the Government like we should because the burden is theirs in this case?
Stombaugh's pocket -- another piece of invisible evidence -- I talked to you about it before -- the blood stain which the Government says that you can see if you look real close. That is the one with the light box that we could not see. Let's hold them to the same standard in this case. It just does not make any sense that Dr. MacDonald is faulted and criticized. Apparently, if you listened to that speech this morning, in nine and a half years, Dr. MacDonald hasn't done a thing right. His lawyers don't do anything right. We are just looking in the wrong direction. The only thing he has done right is to try and talk to them and try and cooperate with them and to try and tell them what he knew and to hope in the name of justice and sense that somebody would listen.
The Government says also that there were no intruders in this case. There is no proof of intruders in this case. The list of evidence that supports Jeff's story will surprise you when we pull it all together right now.
First of all, the latex glove. I stand on Dr. Guinn's testimony. I stand on the gauntlet that he threw down to the Government as to, "Why, if you think that I am wrong, you don't go out today in '79, and check my findings?" It is an unanswered challenge. Where did they come from? They came from some other source than Jeff MacDonald's home.
What about the fiber found on Jeff's glasses in the living room? They have tried and tried and tried and they cannot find any source from within the MacDonald house where that fiber came from. Where do they think it came from? It flew in the window? Nonsense. You have a right to believe that that fiber is one more piece of physical evidence that supports an opposite inference from what the Government wants.
Unidentified hair -- there is hair in this case. The Government has found and they have had MacDonald's sample which was given to them and they still, to this day, cannot ascribe it to any member of the family.
There are fingerprints. We talked about the ones that were found and that were not lifted properly, the ones that were found and were not identified or partially or not complete, the ones that were never found because they did not process the crime scene.
What about the candle wax? Three different candles produced three different types of wax. They went and they rounded up everything in the MacDonald house. They found 14 candles. They took it to the lab. When they got done with their best efforts, what did they find? That the wax that was found in the MacDonald house -- in the living room -- Jeff says that he remembers a woman with a flickering light -- which I think is a reasonable conclusion where they are talking about a woman with a candle. The reasonable conclusion from all that is this: that that is evidence of the truth. Now, what did the Government do about that?
The witness said, "Well, we didn't take that seriously because the wax was hardened." "How long did it take to harden," I said to the witness. "Three weeks." "When did you examine the wax?" "March 6th of 1970." From February 17th to March 6th is three weeks. And he is surprised that the wax had hardened. What I am saying to you is that the reasonable conclusion that you ought to draw is that the wax found in that house unidentified to this day is consistent with Jeff's story of the flickering light in the hand of the woman.
The knives -- the weapons -- are consistent with the intruders. There is no one who has said for a minute that Jeff or Colette owned anything like the Old Hickory knife or anything like the old Geneva knife. As a matter of fact, it was Mildred Kassab who took a look at these weapons and pronounced that her daughter and son-in-law would not own bent, rusted, obviously mistreated instruments like this from that stand right there. She was asked about the weapons and pronounced them not in her daughter's house and not in her son-in-law's house and she had never seen them and didn't believe they were the type of things that they would have.
No one else in this case, Pamela Kalin Cochran, or anyone else has never identified those weapons in the MacDonald house. How did they get there? How did they get there? Physical evidence doesn't walk in by itself. The ice pick -- a fascinating piece of evidence. There are two people out of all of the myriad of people availed by the Government who believe that they think there was an ice pick in the MacDonald house. Again, Mildred Kassab says that she believes there was an ice pick, but it did not look like this one. That is my recollection of her testimony. I ask you to search your own recollection of what she said. It boils down to Pamela Kalin Cochran, a 15 or 16-year old babysitter back in 1970, and now a young woman, comes in here and admits on the stand in 1970, that she was shown pictures but could not identify any of the weapons. She was asked about it but did not remember ever seeing an ice pick in the MacDonald house. You would think that that would be the end of that issue, but you know, I guess the Government's theory is that if you go on long enough, you can wear somebody down -- be it Jeff MacDonald or anybody else.
So, there she is. She goes to the grand jury in August of 1970 -- later than that -- in 1974 -- and in the morning, she was asked about the ice pick. She doesn't identify it. She doesn't recall an ice pick. Then, she goes to lunch and comes back and sitting there four and a half years later, she sees a picture of Colette MacDonald's body with the puncture holes on it and has her vision. She has the vision that now she remembers seeing an ice pick in the MacDonald house. Certainly, she can't identify this one specifically; but an ice pick in the MacDonald house. Can you say to yourself that you have confidence in that kind of evidence? Can you say to yourself that you really have belief that a person can have a vision of having handled an ice pick in the MacDonald house and four and a half years later on that basis when questioned about it when the crime took place by CID and by other persons connected with the military proceedings? Mildred Kassab says that doesn't look like the one. Pamela Kalin says, "I think there was an ice pick in the house but never thought about it until four and a half years later when I had the sudden flash insight." Can you conclude, members of the jury, that that is proof beyond a reasonable doubt that this weapon came from this house? I think not. Where did it come from? Where did the other knives come from? That is consistent with the intruders being in the house.
The club -- there is a little bit of slippery business, I think, on the part of the Government here. Here, we have this wonderful model. I think this model tells us probably where the club came from, but you will never see it unless somebody perhaps gives you a guide book. I think the evidence would be fair for the jury to conclude that that club came from the MacDonald house and that it had been once part of a larger piece of wood. Where do you think that it came from?
On this model, members of the jury, every conceivable detail that anyone could want is on there. There is even the dangling telephone -- the curled wire -- I mean, of all the trivia to build in. When it comes to a piece of evidence that could have some bearing on the case, where, members of the jury, is the pit outside the back of the house where there was wood found and seen by CID agents? Please examine the great model here that is supposed to represent the house in its critical detail so that we can work together and see and understand the crime.
There is a little piece of tape here -- put here -- and we asked another witness to point out just where it is. It is not even correct to mention it. There is no indication by the Government about where that took place. Look at the photos taken by the CID on February 17th. If you will look here, what do you see? Painted pieces of wood sitting in the back of the house. In fact, I will show you the larger pictures in a second that show the same thing. Let me point out to you again that here is another black and white photograph showing more of the wood that the angle of the other one does not show. And lastly, of course, if the door was partially open here, apparently left that way by whoever left last, but it is fully open and what is there is lots more scrap wood -- not under lock and key but just there.
If nothing else, it is reasonable for you to infer that the piece of wood that was used so brutally and monstrously in this case came from that little well outside the house here in the back. It is the well that the Government chooses not to show anyone and not to put on the great model here because why? It might just suggest to the jury that the model is indicating a source for this weapon that was not in the house at the time of the crime. You can get a better view further of that of how perfectly clear it is that here on the photograph of the back of the MacDonald house how perfectly visible it is to anyone coming that way in the direction from, if you will, anyone else's house that happened to live in Corregidor Courts coming this way and perfectly visible and seen all around.
Speaking about visibility, by the way, one of the other interesting gaps in the Government's proof beyond a reasonable doubt is where were the knives found? They were found out here (indicating). The club is found quite close by here (indicating). There are photographs that will show that the knife was found over here (indicating). How did the ice pick and the knife get out there? Did Jeff come out and walk out here? What did he walk on? The sandy soil in which they were looking for footprints in? Did he have any dirt on the sole of his feet when Mica saw him and Tevere saw him and the medics saw him? How did he get it out here?
It is pretty clear from the photographs, I think, members of the jury, that you, yourself, can tell that there is no likelihood that it could be tossed out there and the angles are not clear enough to you, but there are more photographs here. Here, you have the ice pick at this particular angle underneath the shaded area by the bush here. How did it get out there? Look at the sandy soil. What do we know about that? Is there proof in this case that MacDonald in some fiendish plan, ingenious, while running from room to room and doing all these other absurd things that one would have to do, that he also managed to run out there and toss the ice pick under the bush and get back in and make sure that his soles don't show that he was out there and make sure that there is no footprints in the sandy soil out there? Good heavens, members of the jury, where is there proof of this?
There is more proof that there were intruders besides the latex, the fibers, the hair, the wax, the fingerprints, and the weapons. There is more. The list goes on.
Kenneth Mica, on the way, saw the woman in the hat. He recalled the floppy hat, rain hat. That is important not because anyone could draw any certain conclusion as to whether that woman was, in fact, a suspect in this case -- that is not. Professor Osterburg, again, teaching us something about criminal investigation, points out a live person within five country blocks of the crime scene at that time of day, that is the highest priority and anybody around has to be considered a suspect in general terms. If not in terms of a suspect of the crime, as a potential informant -- did that woman see anybody? "Did you see a car go by? Did you see a blue Mustang by any chance? Did you see anything else?" What happened?
That woman's presence indicates that this area was not barren and not devoid of other human beings. Remember, the Government went to great pain with all the CID people who came to the house and the MPs, "Did you see anything on the way? Did you see any people on the way?" They were mocking the idea and really making fun of the idea that anyone could have been in the vicinity and that all this invention of four people was a figment of Jeff's imagination. Yet, here, there is evidence of a person and how does the MP and CID forces respond to that? There is not the slightest indication that anybody went at that time promptly to try and find that person and see whether or not that person had anything about them that might bear on this crime.
Then, there is Mr. Milne. I think the Government should be ashamed of itself for mocking Mr. Milne. They have made absolutely ridiculous what is a serious matter because it doesn't fit their bizarre episode. It is bizarre not because of the way it was told, but it is bizarre that people behave like this. You know, we live in kind of a sheltered world. We deal with people that we know that are our friends and our acquaintances in business. This is not that kind of behavior. This is bizarre.
He looks out of his window -- he looks out of his door -- it is open -- and he sees three people with candles walking towards the MacDonald house. Now, what is the importance of that? It is important a number of ways. First of all, it shatters the Government's argument that it is absurd to think that there was anybody outside, you know, Corregidor Courts that night and that MacDonald is guilty of absolute fabrication. It ought to remove that issue from your deliberations entirely to think that anyone would seriously question whether there could have been persons about who were not seen by the military policemen. I think some of you perhaps have never lived on a military post and have a kind of feeling that you are living in a safe armed camp there with all the MP patrols, but you certainly learned something about that. There is no certainty that such patrols existed and that they ever saw these utterly bizarre things going on. Why should Mr. Milne be ridiculed by the Government? I will tell you why.
The Government says, "Look, he saw this and didn't call up the MPs. He didn't call up the CID." I would suspect that you have a right to draw the conclusion that he had about as much expectation of getting one to come see him as Detective Beasley of the Fayetteville Police Department had when he called the CID and said, "Hey, I have got four suspects for you in the MacDonald killings." That is about as much expectation as anyone with hindsight should have had that anyone would have showed up from the CID.
He said he didn't call them. Why? He lived right in the immediate vicinity. My expectation was that the competent professional people would canvass the neighborhood. He was out of the Army by the end of April. He did not bother to call anyone about it. What is the reasonable inference that you might draw? He concluded that they didn't need him. They didn't need any information from people in the neighborhood. Why do you have to call them up? They know what they are doing, don't they? You know better. You know better than that. Why was he not to assume that?
Then, what happens next? MacDonald's case goes to the military proceedings and ends at the end of October of 1970, and there is widespread notoriety of that and it is over with and why would Milne have to call anybody then? When does he call somebody? When, to his surprise, he learns that the case is alive again. For that, he is mocked and made a fool of by the Government's attitude in this case. I think that is despicable of anything it tended to discourage a citizen from coming forward; and is to hear outside this Courtroom how Government counsel respond to people when they have information and wait for the investigators to do the right thing and hear that the case is over with, and then, when they come forward, to be abused verbally in that fashion.
What else do we know about the intruders? Is this really a ridiculous story -- you know -- poor people and the woman in the floppy hat as the Government continues to mock? You know, we were subjected here to the trashy articles from Esquire magazine. It is an article in which the only evidence is that Ron Harrison and Jeff talked about briefly because of the bizarre episode about Lydia and the swan and then it went on to other things. God, if they had only known when they started reading that that we would all be subjected to listen to that actual piece of trash, they would probably have passed the article over more quickly.
The important thing about that article is this: the Government wants you to conclude that in California, there were these bizarre happenings going on and that MacDonald read about it and that planted this wonderful, you know, masterful idea in his head. And then P.E. Beasley said, "I read it, and that is a description of a part of the counterculture underworld back-street life in the Haymount Section of Fayetteville. It is drug culture Fayetteville 1969-1970."
Witchcraft -- can you imagine killing cats and goats and that bizarre kind of behavior, you know, drugs of every kind, paranoid behavior, violence of all sorts. Beasley makes it real. I mean nothing could be clearer. He is a professional police officer for 20 years. That was his beat. That was the area where he worked on drug matters in that area. He comes and says that there is nothing in that article that they read that one needed to know about to know that "Acid is groovy" and "pig" was the word on the street. What a trashy idea that we are subjected to. The importance of it is this: that the sickness that is reflected in that article -- this kind of sick mind and behavior -- was a disease that was just as present outside of Fort Bragg in Fayetteville as it was any place else. One did not have to read Esquire. One only had to be alive in America to know of Charles Manson and the terrible killings there. Even Helena Stoeckley who doesn't read but heard it on the radio and didn't read books but knew about it that way knew about Manson and the rest of that. One didn't have to bring in and throw the article and argue to you beyond a reasonable doubt that this was the source of the idea that MacDonald had.
The truth, if the issue in this case was -- how many people can you prove knew that "acid is groovy" was the term on the street and knew that "acid" was the term used by dope users for LSD and that all of these expressions and all this language was common on the street with people into drug abuse. We could all be convicted, I suppose, if that were the case. It is not the case. The red herring. It is meant to take -- what about everything else in Jeff's house? What about the articles about saving life in magazines and medical journals? Why don't we read them all to you? I had a temptation to subject all of us to an endless reading of all the things in his house and say on balance, was the man thinking of life or thinking of death, but I thought better of that idea.
What else do we know about are there intruders? Is the idea of intruders real in this case? How about Helena Stoeckley and her boyfriend? Officer Beasley has taught us something about life in Fayetteville and that she ran with a man named Allen Mazerolle and that Mazerolle was a man he considered dangerous and a man considered violent. Helena Stoeckley, when she was in this Courtroom, can you imagine nine and a half years later, puffy-faced from hepatitis and has her arm in a cast because she has been beaten again by one of her friends. Is violence present in her life and the kind of monstrous violence that committed the crimes here? You bet it is.
Dr. Hughes was here yesterday. What did he say? Under LSD, maybe the lights are flashing, but you see the light, you know, and you think that you can do it better than anybody else. You can do it. You can murder, you can commit violence, you can drive a car, you can play music, you can do all of those things. Helena and her friends -- we will talk about them later.
What about Jeff's injuries? It is clear that no doctor with Jeff MacDonald's intelligence would stab himself in the place he did because just in case the person didn't get your message on the phone and the help didn't get to you, you would be dead. Now, what kind of brilliant scheme is that, to hide horrendous murders by taking an injury in a place where you just might die yourself? Jeff is either the intelligent man that even the Government concedes he is, or he is the lunatic who hasn't planned this out very carefully is what the Government's inferences would have you believe.
I want to talk to you a bit now about the last area that I want to talk to you about and then ask my colleague, Wade Smith, to talk a bit about something else. I will make it brief. The question here is what is the role of Helena Stoeckley in this case. Again, we are like living in a time warp. We see her nine and a half years later after. I need to ask you for a minute to try and go back in time, if you will, to 1970. How did she become an issue in this case? Is she an invention of me? Is she an invention of Jeff MacDonald? If you think about the evidence in this case, when the descriptions went out over the radio, who is the person that saw Helena and her band of fellow travelers as potential suspects in this case? Some defense lawyer? Some advocates of the Defendant's position do that, or did a professional police officer, P. E. Beasley? The answer is Beasley.
What else brings Helena Stoeckley in this case? William Posey, the pudgy man who testified in 1970, and here again as a next-door neighbor of Helena Stoeckley and who puts her into this case, too, because he sees her leave around midnight on February 17th, and come back between 4:30 and 5:00 in the morning in the blue Mustang. He sees her run into the house. He saw her always before that time with her characteristic floppy hat, blonde wig, and boots and from that next day onward, never saw it again. Is he an invention of the Defendant and myself?
Again, the Government makes fun. "Why did you come forward, Mr. Posey?" If you come forward at all, you get mocked. If you don't come forward because you think they don't need you, you get mocked. You can't win. You can't win until finally a jury gets to decide the case, and then, then there is a revolution.
THE COURT: Mr. Segal, you have five minutes left of your total time.
MR. SEGAL: My impression was that we had until 4:30, Your Honor.
THE COURT: Well, you have three hours and 15 minutes and you have used three hours and ten minutes of it.
MR. SEGAL: I am going to do injustice to Helena Stoeckley's role because I think I want you to hear what Wade has said that he wanted to talk to you about. It is a question about the one remaining issue in this case.
Just let me say this about Helena Stoeckley. Not only did Posey put her into this case physically. The Government says, "Look, she got rid of the blonde wig, the hat, and the boots because of harassment." Posey said that she got rid of it the next day. How much harassment could there have been by February 18th?
Helena Stoeckley was put into this case by people to whom she talked to, people in Nashville, Officer Gaddis. She was part of a crowd to whom "acid" was really "groovy." In 1973, she said, or '72, she gave it up because she said -- remember the dialogue that we had -- "I don't follow any man." I asked her about Manson and if she believed in following a leader and she said, "I do follow the drug. That is why I gave up LSD," because of what it did to her. Helena Stoeckley also told us about the rocking horse that she believes seen in Kristen's bedroom. The Government leaps forward with a copy of the Fayetteville newspaper, but you see, the trouble with that again is that it is a half truth. How does a Fayetteville reporter or photographer get up to the MacDonald house through the cordons of MPs with their arms curled and take a picture through the window? Wonderful protection of the crime scene. At last, he was at work -- through the soil -- through the sandy soil and a picture right away, but there is something in the picture that makes it different.
Helena says that the rocker was broken -- the rocker was broken. That is not what the picture shows. How would she know that -- how would she know about that, about the rocker? There is much more that one ought to say about her. How do you explain on the day of the MacDonald funerals -- people she says she never met -- she wears black and steals a funeral wreath and never has before -- she wears a black veil. Thereafter, she tries to get someone on the same day to go to the MacDonald's family funeral with her.
The Government's explanation, I suppose, is going to be that her brain was besotted by LSD. Look, you heard what Dr. Hughes had to say. You saw her here. She was a police informant not only in Fayetteville, but her brain was working in Nashville. She was reliable. Beasley didn't say that her brain was besotted. She knew what she was up to. She was dealing drugs on the street. Her head was in some money. Her head was into the drug culture. Why in the name of heaven did the Government not follow the lead that Beasley put in her hand on the next day after the murders and did not send a CID agent?
I wanted to talk to you about the picture in this case. There are many things that I want to touch upon. I ask you not to do this, members of the jury, to not conclude from the fact that I have not talked about so many other issues in the time available to us to conclude that there are not alternate explanations and alternate theories for this. I only want to leave you with this thought and then I am going to ask Wade to talk with you, and that thought is that it was never our explanation and it was never Jeff's responsibility to offer an explanation and never my obligation to offer an explanation, but we only point these things out to you to show you the existence of far more rational and equally acceptable alternative hypotheses to what the Government has here to say. Since the burden of proof is on the Government from the beginning to the end, I submit to you that they never have met it before and they do not meet it now. There is one remaining question, though, and that is the one that I want Wade to talk to you about.
Note from Christina Masewicz: The Court Reporter's misspelling of Duffey, Graebner, Hagney, Mazerolle and Kimberly has been changed to read Duffy, Grebner, Hageny, Mazerolle and Kimberley in the above transcript.