March 8, 2013
With the forty-third anniversary of the murders of Colette, Kimberley, Kristin and the unborn son Colette was pregnant with occurred on February 17, we are reminded of all the hard work that the investigators and prosecutors who have help put Jeffrey MacDonald where he belongs. And with no end of the litigation in sight, just brings home how crazy this case is.
Many of the people who worked on this case have passed away over the years and with the passing of FBI SA Butch Madden in October 2012, shortly after the hearing and George Anderson who was the United States Attorney during the MacDonald trial passing away this past February.
George Shirley died in 1978. I mention him here because he is one of the unsung heroes in the MacDonald saga. In 1974, while Congress was dealing with Watergate, and DOJ was trying to figure out how to respond to Judge Butler's letter to the AG about Fred Kassab's complaint, Shirley was working for Congressman Dave Dennis on the House Judiciary Committee. Let's just say he was instrumental in causing the Counsel to the Committee to send an inquiry to DOJ asking what's happening here? I believe this was one of the factors which caused AAG Henry Peterson to ask Victor Woerheide to take a look at the case. Of course once the mailbag with the CID reports and the pictures landed on Woerheide's desk, the result was inevitable, but without Shirley's good works, the mail bag might never have reached Woerheide's desk.
George Anderson played a critical role in this case, not so much in the trial, but in assigning Jim Blackburn to the case even before Blackburn came on board as the First Assistant. In 1977, while the case was pending before the Supreme Court, Brian Murtagh convinced DOJ to let him go down to meet Anderson soon after he had been sworn in as the United States Attorney. Murtagh's purpose was to give him a heads-up about the case which, might never come back, but if it did, it would have to be tried, and to offer his services. Anderson could have said: I didn't indict it, you guys from DOJ try it, or we'll worry about that if the Supreme Court reverses the Fourth Circuit's speedy trial dismissal. He did neither, and Murtagh and Blackburn started preparing as soon as he was sworn in.
Several books and magazine articles have been written about this case. The one book that can never be faulted with not telling the truth as it occurred during the trial is Fatal Vision written by a man I am proud to call my friend, Joe McGinniss. Aside from the fact of attending every single day of the trial, he lived with MacDonald in the Kappa Alpha House during the trial. He witnessed firsthand personal insight into the personality of Jeffrey MacDonald. He was there every step of the way. He heard what everyone said in and out of the court room from the defense. He experienced the rage and I would say the hatred MacDonald felt for anyone who did not agree with him. But the one person MacDonald should have rage at was Helena Stoeckley. Yet when he was first confronted in the courtroom by the very woman, according to his own story, participated in the murders of his pregnant wife Colette, and two little girls, Kimberley and Kristen, there was no response, no emotions, there was total unconcern. Where was his anger then?
McGinniss said the first time he met MacDonald, that "the first thing MacDonald did was make a joke to me, saying; 'I understand you're an expert on triple homicides,' and he laughed, making reference to a newspaper column I had written fifteen years earlier.
"But it struck me as most peculiar that this man would be making jokes about this kind of situation. It struck me most peculiar that he would be allowing his friends to give him a disco party to send him off to North Carolina on an 'emotional high', as he put it."
McGinniss, like many others were faced with things that just didn't seem right, but was willing to give him the benefit of a doubt. However, McGinniss said, "I'd say that the overwhelming circumstantial evidence first caused me to recognize that there was a very, very real chance that, despite outward appearances, he must have done it..." He goes on to say, "Then in living with him during the trial and seeing his emotional reactions and lack of emotional reactions to different situations, you could say in an amateurish way...I had an intuitive psychological insight that the man was not responding appropriately...
"Throughout the summer in private he would rage against the judge, against the prosecuting attorney, against witnesses called by the prosecution, against the military from 1970--rage against everybody in the privacy of the fraternity house."
After all this time, Errol Morris decided he wanted to get on the band wagon by writing his own book. Morris called me several times for no other reason than to try and get me to intercede and put him in contact with people he knew I knew. Morris lied to me and said he had not made up his mind as to whether MacDonald was guilty or innocent. I taped all the conversations we had which shows what his intent was and the fact he lied. Morris' book was released September 4, 2012 approximately three weeks from the hearing. I do not believe that was just coincidence, I believe it was done on purpose.
Morris has a habit of using people to gain recognition. A good example of that was the Randall Adams case which Morris did the documentary on entitled The Thin Blue Line. Morris did accomplish a good thing by getting Adams out of prison, but at what price? Adams sued Morris and his attorney summed it quite well saying, "After being a prisoner of the justice system for 12 years Mr. Adams should not have been required to be a prisoner of Errol Morris for life."
I read Morris book, A Wilderness of Error. I was not impressed. There are many mistakes in the book starting with Bob Stevenson being Colette's younger brother as opposed to her older brother. He also stated that Fred Kassab died in 1991, three years prior to his death. Many of the mistakes I chalk up to carelessness or perhaps laziness. The following are major mistakes which I take issue with.
I. Overview: A Wilderness of Error
(A) Morris, recycles every meritless theory and bogus argument that Segal made to the jury, and which they, and the courts, rejected. The book is not so much written as disingenuously paste-potted together from carefully parsed transcripts, many with Morris playing the role of the great detective.
(B) Morris doesn't deal with major parts of the prosecution's evidence, such as the sheet and bedspread found on the floor of the master bedroom, and MacDonald's demonstrably false attempts to provide an exculpatory explanation for this evidence. E.g. He never touched the pile of bedding but his own expert, John Thornton testified that there was a bloody fabric impression that matched the right cuff of MacDonald's pajama cuff; both the fabric impression on the sheet and the cuff were stained with Colette's Type A blood.
(C) He doesn't cover the fact that MacDonald's pajama top was stained with Colette's blood before it was torn, which is impossible according to MacDonald's account that his pajama top was torn in a "struggle" with the hippies in the living room, and he put it on Colette when he first came into the master bedroom.
(D) He doesn't explain how sixty pieces of the pajama top, including the ripped off pocket bearing a contact stain in Colette's blood type, could be found in the master bedroom, including 30 seam threads under her body.
(E) What little prosecution evidence he does discuss, he treats not in the light most favorable to the prosecution, the appellate standard in any legal challenge to the sufficiency of the evidence, but in the light least favorable to the prosecution and most favorable to the defendant. The book might just as well have been written by one of MacDonald's lawyers.
(F) His overarching flaw as a journalist and would be detective is to accept anything and everything MacDonald said, in an unsuccessful attempt to exculpate himself, as gospel, and to vilify anybody who dared to questioned MacDonald's veracity. Not only is this mind set gullible, but it ignores the fundamental theory of the prosecution and the Supreme Court cases which underpinned it: exculpatory statements by the defendant demonstrated to be false are evidence of consciousness of guilt, are treated in evidence like confessions, and are sufficient to support a judgment of conviction. Morris, because of tunnel vision, fails to grasp that the only thing which stands between guilt and innocence in this case is the credibility of MacDonald's account. And because Morris and the faithful believe MacDonald's account the public and the prosecutors are compelled to do likewise. Bullshit!
(G) Morris also repeats the canard that the prosecution told the jury that "there was no evidence of intruders"; the prosecutors never used those words, nor did they in any way imply to the jury that there was no physical item that could not be demonstrated to have come from the household. How could they? There were dozens of unidentified fingerprints, hairs, fibers and other household debris. What the prosecutors told the jury was that the evidence which could not be accounted for by intruders, the pajama top reconstruction and MacDonald's bare left footprint in Colette's blood exiting from Kristen's room, identified MacDonald as the only possible criminal agent. The prosecutors also told the jury if you believe him then acquit him. The jurors obviously didn't believe MacDonald's account, and they didn't acquit him
(H) That Morris is not convinced of MacDonald's guilt is irrelevant: the jurors, each and every one of them, who actually heard the testimony, including MacDonald's exculpatory account, and saw the demonstrative evidence were each convinced beyond a reasonable doubt. The trial was a kind of Roshamon - MacDonald's story versus the story told by the evidence through numerous witnesses. If Morris were to have his way, the guilt or innocence of MacDonald would be re-litigated forty-three years after the murders by means of juxtaposition of the evil Gary Cole and the good Gary Cole acting out a screenplay cobbled together by Morris? What chutzpah!
(I) Morris just doesn't get it that Fatal Vision (and its evil author) played no role in the trial that resulted in MacDonald's conviction on three counts of murder. How could it, the book was published more than three years after the verdict, and after the Fourth Circuit had affirmed his conviction, and the Supreme Court had declined to review that decision?
(J) It is also patently absurd to argue, as Morris does, that Fatal Vision was responsible for the courts rejecting all of MacDonald's collateral attacks on his conviction. Federal judges at the District Court, Appellate and Supreme Court levels simply do not decide a petition for federal habeas relief on the basis of what's outside the record. Morris, obviously hopes to change all that.
(K) But the most catastrophic failure to Morris's "MacDonald was railroaded" thesis is the complete omission of the fact that Britt swore that he transported Helena Stoeckley from Greenville, South Carolina (she was actually in Pickens South Carolina), to Raleigh, that she confessed during this long trip, and that the next day when being interviewed by Jim Blackburn, that "Ms. Stoeckley told Mr. Blackburn the same things she had stated to me on the trip from Greenville to Raleigh." What is omitted, although it has been a matter of public record, supported by sworn statements and irrefutable documentary evidence, that other Marshals transported her, not from Greenville, South Carolina but from Pickens, South Carolina on the day before the interview. Britt drove her the five blocks from the Wake County Jail in Raleigh, where she was lodged, to the Federal Courthouse, and he never claimed that she confessed in this short trip. For Morris not to in any way inform the reader that the defense's "unimpeachable" witness was impeached years ago, as will soon be clear to all, is outrageous.
Britt thought he had all his ducks in a row, he was mistaken. Britt was an angry man and I believe he thought he had been mistreated by the Marshals Services he had worked for. It is my opinion that in his mind he saw a way to get even when the fact came to his attention by way of his wife, who was a Marshals Service administrator received a routine receipt mailed to the United States Marshals Service in 2002 informing them that records that had been sent to be archived at the Federal Records Center could now be destroyed after twenty-five years, instead of the previously standard of fifty-five years.
In 2004, Britt called Mattie Reddick, out of the blue. Miss Mattie (as she was referred to) had worked with him in the Marshal's office stated she had not talked to Britt in a number of years and was surprised to hear from him. The purpose of his call was to elicit the whereabouts of Geraldine (Gerry) Holden. Reddick informed Britt that Holden was in a rest home in Morehead near her daughters. Britt apparently discovered that Holden died March 21, 2005, seven months before he came forward and executed his affidavit. Britt was banking on the records being destroyed by that time and with Holden dead, he thought he was home free and that there would be no way to prove otherwise.
After remaining silent about this for a quarter-century, Jimmy Britt waited until 2005 to come forward with his affidavit. That records survived apparently was an administrative oversight, and because of that oversight it proved Britt was not telling the truth.
What this all boils too, Britt gave conflicting statements in each one of his affidavits. Things Britt said in one affidavit was omitted in another one and even after making several affidavits, wrong information was left in as evidenced by the following exchange between Defense Attorney Widenhouse and Wade Smith during the September 2012 hearing:
Q. NOW, IN LOOKING AT PARAGRAPHS 11 AND 15, THERE APPEARS TO BE OR THERE IS AN INCONSISTENCY IN THE LOCATION WHERE MR. BRITT SAID HE WENT TO GET MS. STOECKLEY.
Q. AND IN THE COURSE OF THE STATEMENTS AND AFFIDAVITS HE GAVE YOU, WHERE DID HE MOST OFTEN SAY HE WENT IN SOUTH CAROLINA?
A. WELL, SOMETIMES HE SAID CHARLESTON. SOMETIMES HE SAID GREENVILLE. MY RECOLLECTION IS THAT IN THE NOVEMBER 2005 AFFIDAVIT HE SAID IT WAS GREENVILLE.
Q. AND WHEN YOU WERE TALKING TO HIM AND PREPARING THESE AFFIDAVITS, WAS THE LOCATION IN SOUTH CAROLINA WHERE HE WENT OF PARTICULAR SIGNIFICANCE OR NOT?
A. WELL, I'M SURE THAT I SHOULD HAVE BEEN -- HAD MY WITS ABOUT ME ENOUGH TO CATCH THAT, BUT I WASN'T THINKING ABOUT WHAT TOWN IT WAS IN. I WAS -- I ONLY WAS THINKING ABOUT THE FACT THAT HE WENT DOWN THERE TO GET HER AND SOUTH CAROLINA WAS WHAT HE ALWAYS SAID.
AND SO IF I HAD BEEN SMART ENOUGH AT THAT TIME TO CATCH THE FACT THAT HE SAID CHARLESTON ONCE OR TWICE OR EARLY -- I MEAN IN THE OCTOBER AFFIDAVIT, I COULD HAVE STRAIGHTENED IT OUT, AND I'M SORRY I DIDN'T, BUT I JUST DIDN'T CATCH IT.
THE COURT: EXCUSE ME JUST ONE MOMENT. DID MR. BRITT READ THIS?
THE WITNESS: I'M SURE HE DID, YOUR HONOR. BEFORE HE SIGNED IT, I'M SURE HE DID.
THE COURT: SO, HE HAD AN OPPORTUNITY HIMSELF TO CORRECT IT?
THE WITNESS: YES, SIR.
II. Factual Errors And Material Omissions
Page 13. Colette MacDonald had 21 ice pick wounds to her chest, not 24 to her chest and arm as said in book, and the number 21 is significant. This testimony came from Major George Gammel, who performed the autopsy, and not from the testimony of the MPs as Morris suggests.
Page 14. Nobody testified that MacDonald had two stab wounds, one of which was in his stomach. He had the incised wound between his 7th and 8th ribs which produced the pneumothorax, and a superficial laceration of the left rectus muscle.
Page 14. It wasn't "Specialist Four" William Ivory who was the first CID Agent who arrived at the scene, it was "Specialist Seven" Ivory. Morris makes him sound like an Army Corporal when he had the same grade as a Sergeant First Class.
Page 15. Ivory was neither young nor inexperienced as an investigator, born in 1939 he was 30 years old, had been an accredited CID Agent for six years, and before that was a Military Policeman.
Page 33. The concept of psychopathy did not seal MacDonald's fate because no psychiatric testimony was admitted; what sealed MacDonald's fate was the fact that he was a liar, the prosecution proved he was a liar, there was physical evidence linked to him which identified him as the perpetrator, and no matter how hard he and his lawyers tried, could not be explained by intruders. The jury didn't believe his account.
Pages 35-36. Whatever may have been the case at the Article 32 Hearing, the trial prosecutors did not attempt to prove that the coffee table flips all the way over.
Pages 53-54. Contrary to Morris's assertion that there were two crime scene photographers, the one who got sick, and the one who came 6 hours later, in fact there three photographers: Staff Sergeant Alexander using a 4 X 5 Speed graphic with black and white film, who did run out of flashbulbs, but not before he had had taken numerous photos of the bodies in situ; Hugh Squires, the Fort Bragg Post photographer, who immediately followed SSG Alexander, and took a complete set of crime scene photos before the bodies were removed; and Harold "Hal" Page the CID Lab photographer who arrived from Fort Gordon after the bodies had been removed, and collection of the evidence had begun. At the Article 32 Segal showed the Page pictures to MPs like Mica, and not surprisingly the later photographs did not comport with the witness recollection; Segal tried it again at trial and the prosecutors called him on it.
Page 67, Quotes Psychiatrist Robert Sadoff's 1970 report: "he denies the use of drugs of any type, which could have stimulated an acute toxic psychotic state resulting in loss of control and explosive violence", but Morris never asked Sadoff about possible effects of Eskatrol when he interviewed him in 2012. Morris omits the reference in the same 1970 assessment by Sadoff that MacDonald's feelings of guilt at being unable to save his family "account for the deception indicated on the polygraph." This is the 1970 polygraph examination administered by Cleve Backster, which MacDonald failed.
Time line, April 23, 1971, Helena Stoeckley did not confess to Army Polygraph Examiner Robert Brisentine on April 23, 1971 to being present at the homicide.
What she said is that during a period of three to four months subsequent to the homicides, she was convinced that she participated in the murders of Colette and her two children. That she presently is of the opinion that she personally did not actively participate in these homicides, but may have been physically present at the time of the murders.
Page 85. Freddy Kassab didn't get the transcript of the Article 32 hearing from the Army, when MacDonald's mother delivered the transcripts to the Kassabs on Christmas eve, Kassab Xeroxed it.
Page 123, Victor Woerheide was never an Assistant United States Attorney.
Page 138, Statement: "But ABO blood typing does not connect a blood type with a specific individual" is misleading. Assuming Morris meant to say blood stain instead of blood type, if an ABO blood type stain is the same as the ABO blood type of an individual, then the jury may draw the inference that it came from that individual, especially if the person had bleeding injuries. Conversely, ABO blood typing can eliminate an individual as the source of the blood stain. In this case where everybody had bleeding injuries, and the three victims bled to death in the crime scene as the result of dozens of deep penetrating wounds inflicted with a sharp paring knife, it is absurd to argue, at this late date, that the blood came from intruders and not from members of the MacDonald family.
Page 138, Janice Glisson didn't testify before the grand jury that Kristen's Type O blood was found on MacDonald's eyeglasses; Segal elicits this testimony from Craig Chamberlain at trial. MacDonald did not claim to be wearing his glasses the twenty-four hours before when he worked at Hamlet Hospital, and if he wanted to subpoena the medical records of the patients he treated he could have done so in 1975.
Page 140, The assertion that an intruder, or multiple intruders, could account for the distribution of the blood stains is absurd. If not, Morris should have provided one or more logical scenarios that account for the distribution of all the blood stains and distinguishes between hippie blood and victim blood. He didn't do that. Besides, only MacDonald could have tracked the Type A blood out of Kristen's room which had no other type A stains on the floor.
Page 143, Sadoff was never "called again to the stand" and there was no "powerful moment on the stand" at the grand jury investigation. There was a deal between Woerheide and Segal; MacDonald would waive his doctor-patient privilege to permit all the psychiatrists to be interviewed, and Woerheide agreed to let the jury hear Sadoff. In late January 1975, with the 5 year point approaching, Sadoff had the flu and wouldn't come to Raleigh. The government attorneys flew up to Philadelphia, interviewed Sadoff under oath and played the tape for the grand jury, as the transcript clearly reflects. Morris, who knows all about the Eskatrol notes, having read Fatal Vision, doesn't ask Sadoff in 2012 if MacDonald's admission that he took Eskatrol changes his position.
Chapter 23 The Jail Cell
Page 158, Segal didn't come to see the evidence in the jail cell; it was Wade Smith and John Thornton.
Page 158, it is bullshit to say that Thornton got the right of visitation of the evidence, but not examination. Pursuant to an order issued by Judge Dupree, Thornton came to the jail cell to select whatever he wanted to examine on the first day, and was given as he later told the FBI in 1990 "unfettered access" to the evidence. On the second day, whatever he selected, including the sheet and MacDonald's pajama top, were taken by the FBI Case Agent to the North Carolina State Bureau of Investigation Laboratory, (SBI) which Judge Dupree had arranged to be made available to Thornton. That the blood was too old to test in 1979 using the methodology of the time, and that Thornton didn't have the time to do it as he would have liked to under California State rules, was not due to any action on the government's part, but rather because, as Thornton admits, for Bernie Segal "the physical evidence wasn't really on the front burner."
Pages 159-160, There were no discrepancies in the blood typing done by Janice Glisson at Fort Gordon and the FBI, because the FBI didn't attempt to retest any of the stains because they were too old. Thornton was given cuttings from bloodstained items which he designated. The cuttings were done by Janice Glisson about August 2, 1979 and furnished to Wade Smith against receipt. Thornton never tested them, and in 2000, when he was cleaning out his laboratory he sent them to AFIP, where they remain.
Page 174. The jury never saw the Mini-series version of Stombaugh demonstrating the pajama top reconstruction to Freddy Kassab, which in fact never occurred.
Page 175. There are not two separate sets of crime scene photos showing the pajama top in different positions and folded in different ways. There are two sets of photographs taken by SSG Alexander and Hugh Squires, which depict the pajama top on Colette's chest from different angles; none show it other than turned right sleeve inside out. The photographs taken by Hal Page from Fort Gordon don't depict the pajama top at all because it was collected before Colette's body was removed and Page arrived. It is utter bullshit to say there is disputed testimony about where the pajama top was actually found! Where is that testimony and who were the witnesses?
Page 176, it is even greater bullshit to say, as Morris does, that there are multiple ways the pajama top could have been folded to match up 48 punctures with twenty-one holes. Morris has it backwards; it is making twenty-one thrusts, through forty-eight holes in the multiple layers of the inside out pajama top to produce the same pattern of twenty-one ice pick wounds as exists on Colette's chest. If there are multiple ways to do this, Morris needs to do more than just say it (or lie about it) he needs to demonstrate it.
Page 178, there is no testimony in the record that MacDonald's pajama bottoms "were covered in blood", besides it would have looked really strange to the MPs if he had covered Colette with both the pajama top and bottoms and was bare assed when they arrived.
Page 202. Skips over who arrested Stoeckley and who really transported her to Raleigh.
Page 203. There is no mystery as to how Blackburn knew that Stoeckley had been lodged in Pickens, South Carolina; he asked the FBI to interview Stoeckley when she was arrested, and to advise him of the results, she denied all involvement. The FBI was also required by law to advise the nearest United States Magistrate where Stoeckley, who had been arrested, was lodged; the Magistrate, not Stoeckley, was in Greenville. Where Stoeckley was lodged was a fact that could have been easily checked by MacDonald's attorneys in 2005, particularly in light of Blackburn's statement in the record, before they had Britt commit himself in sworn statements. Britt got it wrong (multiple times) because he never transported Stoeckley from any place in South Carolina, and now they are stuck with a lying witness who is dead; an inconvenient truth too difficult for Morris to deal with honestly.
Page 205. It is ludicrous for Morris to claim that when the defense lawyers Segal and Smith met with Stoeckley on September 16, 1979 the day before her testimony, that they could expect that Stoeckley was their witness, and that they were surprised when she testified to a lack of memory. Although, Segal did indeed claim, falsely, that he was surprised by Stoeckley's testimony.
Page 220. Underhill is wrong when he says that a "stuffed pig" and a "crib" were depicted in the crime scene photos, and that Stoeckley recalled these details. There is no stuffed pig and there sure as hell is no crib in the pictures or the house.
Chapter 64 Specimen 91A
It wasn't "28" hair samples that went to AFDIL, it was 29 questioned specimens, and they weren't all hairs, in addition to reference samples from six individuals.
Although Dr. Hancock performed the autopsy on Kristen, the fingernail scrapings were actually taken, as the Article 32 Transcript clearly reflects, by Dr. George Gammel.
Dillard Browning did not label the vial containing the fingernail scrapings from Kristen's left hand as "#7". Morris omits Browning's testimony before the grand jury that he found a bloody cotton fiber in the fingernail scrapings which matched the cotton fibers from MacDonald's pajama top. Although Morris says he read Janice Glisson's July 27, 1970 bench notes, he totally omits the fact that she numbered the vial "not labeled by Browning" as "# 7" and mounted the hair that she found on July 27, 1970 in that vial on a slide which she also labeled "# 7", and initialed both the vial and the slide. Vial # 7, did not become D-237 or Q137, it became AFDIL Specimen 92A, and FBI Specimen "Q 137.1".
The above is just a partial list of the mistakes I found in A Wilderness Of Error. Anyone who has read Morris' book and found errors, feel free to e-mail them to me and I will add them to the list
The following is the Evidentiary Hearing Opening Proceedings, 8:55 A.M., September 17, 2012
(Defendant Jeffrey Robert MacDonald PRESENT)
THE COURT: GOOD MORNING, PLEASE BE SEATED.
AT THE OUTSET, I'D LIKE [to] BECOME ACQUAINTED AND REACQUAINT MYSELF WITH COUNSEL. IF YOU'LL COME UP TO THE BENCH, PLEASE. COUNSEL, IF YOU'D COME UP TO THE BENCH, PLEASE.
(BENCH CONFERENCE NOT REPORTED.)
THE COURT: LADIES AND GENTLEMEN, I WANT TO BEGIN BY SAYING I GUESS EVERYBODY'S RECEIVED A COPY OF THE COURT'S ORDER THAT'S IN EFFECT REGARDING THE TRIAL.
IT'S MY INTENTION TO START EACH MORNING SESSION AT NINE O'CLOCK AND WORK TILL 12 O'CLOCK AND THEN I THINK WE'LL TAKE A RECESS FOR LUNCH AND WE'LL COME BACK AT 1:30.
THAT'S A LITTLE LONGER THAN I USUALLY TAKE FOR LUNCH, BUT I WANT TO GIVE YOU TIME TO FIND A PLACE TO EAT AND ALSO I KNOW COUNSEL AND THE COURT ALSO HAVE THINGS TO ATTEND TO. THEY HAVE TO KEEP THEIR CASES GOING.
I NOTICE YOU ALL HAVE SIGNED THE PROPOSED HEARING -- JOINT HEARING ORDER, IS THAT CORRECT? YOU'VE SIGNED IT?
MR. WIDENHOUSE: YES, SIR.
THE COURT: THE COPY I HAD HADN'T BEEN SIGNED WHICH WAS BROUGHT IN THIS MORNING. THE PROPOSED JOINT HEARING ORDER, THERE'S BEEN NO AMENDMENTS TO IT OF ANY KIND, IS THAT CORRECT?
MR. WIDENHOUSE: NOT THAT I'M AWARE OF.
THE COURT: THANK YOU.
MR. BRUCE: YOUR HONOR, THE STIPULATION THAT IS PROPOSED THAT WAS ATTACHED TO THE PREHEARING ORDER, WE HAVE A SIGNED COPY BY ALL COUNSEL TO HAND UP AT THIS TIME.
THE COURT: THANK YOU. THANK YOU VERY MUCH.
NOW, COUNSEL, THERE'S SOME QUESTION AS TO WHETHER WE'RE GOING TO HEAR THIS THING ON -- THIS MATTER ON THE MERITS OR WHETHER IT'S A -- THE COURT IS EXERCISING ITS GATEKEEPING FUNCTION. I RECEIVED YOUR PROPOSED JOINT HEARING ORDER ON THURSDAY MORNING AND I WAS AMAZED FRANKLY AT THE NUMBER OF EXHIBITS -- MATERIAL THAT WAS THERE. AND IT SEEMED TO ME THAT WHAT YOU ANTICIPATE DOING IS ADDRESSING THIS ISSUE ON THE MERITS. IS THAT RIGHT, MR. WIDENHOUSE?
MR. WIDENHOUSE: WELL, I THINK -- IF I UNDERSTAND THE FOURTH CIRCUIT'S DIRECTIVE, I THINK TO SOME EXTENT YOU HAVE TO AT LEAST TAKE A PEEK AT THE MERITS TO DO THE GATEKEEPING STEP.
THE COURT: WELL, IT SEEMED -- THE TWO SEEMED TO BE SOMEWHAT CONFLATED.
MR. WIDENHOUSE: I AGREE AND I THINK THE FOURTH CIRCUIT'S ORDER IS A LITTLE BIT CONFUSING. I HATE TO SAY THAT BECAUSE I GET UP THERE OFTEN AND THEY MAY NOT LIKE HEARING THAT I SAID THAT.
BUT IT DOES SEEM THAT THE GATEKEEPING FUNCTION REALLY REQUIRES THE COURT TO LOOK AT THE EVIDENCE THAT WE PRESENT IN THE CONTEXT OF THE EVIDENCE AS A WHOLE WHICH IS WHY THE EXHIBIT LIST IS AS LONG AS IT IS.
THE COURT: WELL, I KIND OF AGREE WITH THAT. WHAT DO YOU THINK, MR. BRUCE?
MR. BRUCE: YOUR HONOR, I AGREE. AS YOU MAY RECALL, AT THE STATUS CONFERENCE LAST SEPTEMBER WE SUGGESTED SKIP OVER GATEKEEPING MOMENTARILY AND GO TO THE MERITS OF THE BRITT CLAIM BECAUSE WE THOUGHT THAT MIGHT BE EASIER IN LIGHT OF THE EVIDENCE AS A WHOLE MANDATE FROM THE FOURTH CIRCUIT.
BUT THE WAY THINGS HAVE DEVELOPED, YOU KNOW, THE UNSOURCED HAIR CLAIM. AND FROM OUR POINT OF VIEW, IF THERE'S EVER GOING TO BE EVIDENCE AS A WHOLE PRESENTED NOW WOULD BE THE TIME TO DO IT. AND PRESUMABLY, AT THE CLOSE OF THIS HEARING, THAT WOULD JUST CLOSE THE EVIDENCE.
SO, OUR APPROACH HAS BEEN TO MARSHAL OUR EVIDENCE FOR THE BRITT CLAIM, UNSOURCED HAIR CLAIM, AND EVIDENCE AS A WHOLE. THE ONLY THING -- AND, OF COURSE, THEY HAVE THE BURDEN OF PROOF SO THEY WOULD GO FIRST AND PRESENT THEIR WITNESSES AND THEN WE'LL PRESENT OUR WITNESSES.
THE ONLY THING THAT I THINK THAT LEAVES AS A QUESTION MARK IS SORT OF THE BREADTH OF THE EVIDENCE AS A WHOLE. I NOTICE THAT THEY HAVE SOME OBJECTIONS TO SOME OF OUR EVIDENCE SAYING IT'S BEYOND THE SCOPE OF EVIDENCE AS A WHOLE.
ONE WAY TO LOOK AT THAT, I THINK, IF THE MOVANT IS TAKING THE POSITION THAT EVIDENCE AS A WHOLE IS LIMITED TO THOSE THINGS THAT ARE ENUMERATED IN THE FOURTH CIRCUIT'S OPINION, WHICH ARE THE DNA TEST RESULTS, THE AFFIDAVIT OF THE ELDER HELENA STOECKLEY, THE BLONDE SYNTHETIC HAIR LIKE FIBERS, AND THE THREE AFFIDAVITS DESCRIBING CONFESSIONS MADE BY GREG MITCHELL, THEN IF THE COURT LIMITS IT TO THAT THEN WE WILL -- OF COURSE, WE'LL SO LIMIT IT TOO.
BUT IF THE PARTIES ARE INTRODUCING SOME ADDITIONAL EVIDENCE FOR THE COURT TO CONSIDER AS EVIDENCE AS A WHOLE THEN WE HAVE SOME TOO.
BUT MY READING OF THEIR WITNESS LIST AND OUR WITNESS LIST, I THINK MOSTLY WE'RE GOING TO BE -- THE TIME IS GOING TO BE TAKEN ON THE BRITT CLAIM AND NOT SO MUCH ON THE EVIDENCE AS A WHOLE. THEY MAY HAVE A DIFFERENT VIEW.
THE COURT: WELL, I WAS GOING TO ASK IF WE'RE GOING TO HEAR THE EVIDENCE ON A WHOLE, THAT WOULD INCLUDE MORE THAN JUST THE BRITT CLAIM AND THE UNSOURCED HAIRS. IT WOULD INCLUDE THE SARAN THREAD THAT WAS FOUND AND THE VARIOUSAFFIDAVITS OF THE STOECKLEY WITNESSES.
ARE YOU PREPARED TO GO FORWARD ON THE EVIDENCE AS A WHOLE?
MR. WIDENHOUSE: WELL, I THINK SO, YOUR HONOR. I MEAN WE HAVE COPIES OF ALL THE EXHIBITS THAT WE LISTED IN THE PRETRIAL ORDER AND OUR RATIONALE FOR LISTING THAT MANY EXHIBITS WAS TO SORT OF CABIN FOR THE COURT WHAT WE THINK, FROM OUR PERSPECTIVE IN SUPPORT OF OUR CLAIMS OR OUR CONTENTIONS ON THESE TWO CLAIMS, WHAT THE EVIDENCE AS A WHOLE IS.
I MEAN, THE FOURTH CIRCUIT WAS CLEAR IT'S EVERYTHING THAT'S ADMISSIBLE AND INADMISSIBLE AND ALL THAT KIND OF STUFF. I MEAN, IT'S SORT OF AN INTERESTING DOCTRINE BECAUSE IT'S DIFFERENT FROM EVERY OTHER KIND OF EVIDENCE EXAMINATION I'VE SEEN BEFORE.
BUT WHAT WE -- WHAT I THINK IF THERE'S A LIMIT ON THE EVIDENCE AS A WHOLE -- AND OUR OBJECTION WAS BASED ON SOME THINGS THAT I THINK ARE SIMPLY OUT OF THE CHAIN OF THE CRIMINAL PROSECUTION.
BUT I THINK ANYTHING, IF I READ THE FOURTH CIRCUIT CORRECTLY, ANYTHING THAT'S BEEN INTRODUCED IN THE COURT RECORD OF THIS PROCEEDING FROM THE TIME OF THE INDICTMENT OR ACTUALLY THE INVESTIGATION UP UNTIL TODAY AND THE END OF THIS HEARING I THINK IS THE EVIDENCE AS A WHOLE.
MY BIGGEST OBJECTION TO THEIR LISTING WAS THE TRANSCRIPTS OF THE CIVIL TRIAL BETWEEN DR. MACDONALD AND JOE MCGINNISS, WHICH JUST SEEMS TO ME DOESN'T QUITE FIT IN THAT DIRECTIVE OR THE DIRECTION OF THE CRIMINAL PROSECUTION AND THE CHALLENGES TO THE PROSECUTION AFTER THE VERDICT.
BUT I DON'T KNOW WHAT THE EVIDENCE AS A WHOLE IS OTHER THAN WHAT THE FOURTH CIRCUIT PUT IN ITS OPINION.
THE COURT: WELL, IT WOULD SEEM TO ME THAT THE EVIDENCE AS A WHOLE IS ANYTHING THAT'S RELEVANT -- THAT ONE SIDE CLAIMS IS RELEVANT.
I'VE NEVER BEEN IN A -- TRIED A CASE THAT DIDN'T HAVE THE PARAMETERS OF EVIDENCE, YOU KNOW, PUT TO IT, BUT THIS IS A BRAND NEW VENTURE I GUESS FOR ALL OF US. EVERYTHING COMES IN, AS I SEE IT, EVEN IF IT'S SOMETHING YOU COME UP WITH DURING THE COURSE OF THE TRIAL YOU COULD INTRODUCE IT.
BUT I'D LIKE TO HAVE THE SCOPE SO BROAD THAT THIS WILL ADDRESS ALL ISSUES THAT COULD BE CONCEIVED OF AMONG COUNSEL BECAUSE YOU DON'T WANT TO COME BACK 42 YEARS LATER AND DO THIS AGAIN.
NOW, I HAVE TO SAY BY WAY OF EXPLANATION, I'M NOT SAYING IT BY WAY OF APOLOGY, BUT JUDGE DUPREE TRIED THIS CASE AND I DIDN'T. AND I AM NOT FAMILIAR WITH -- I HAVEN'T SEEN THE WITNESSES, I HAVEN'T HEARD THEM, I HAVE MADE NO ASSESSMENTAS TO THEIR CREDIBILITY OR RELIABILITY.
AS I SEE IT, I THINK YOU ALL, MR. MURTAGH PARTICULARLY AND MR. BRUCE, ARE FAR MORE FAMILIAR WITH THE CASE THAN I AM.
NOW, MR. WIDENHOUSE, YOU'VE COME INTO THE CASE FAIRLY RECENTLY. I MEAN, IT'S BEEN HANDLED BY A NUMBER OF DIFFERENT ATTORNEYS.
AND I DID NOT PERCEIVE INITIALLY EXACTLY THE RATIONALE OF MR. MILES' REQUEST FOR AN EVIDENTIARY HEARING. I THOUGHT WE WERE KIND OF LOOKING AT THE SECOND GATEKEEPING FUNCTION.
BUT I FRANKLY THINK THAT THE SECOND GATEKEEPING FUNCTION WOULD BE SOMEWHAT SUPERFLUOUS IN THE SENSE THAT THE FOURTH CIRCUIT HAS RECOGNIZED THAT MACDONALD HAS MADE A SUBSTANTIAL SHOWING OF A DENIAL OF A CONSTITUTIONAL RIGHT WITH RESPECT TO BOTH THE BRITT CLAIM AND THE DNA CLAIM, I'M READING FROM THEIR OPINION.
SO, I THINK FROM THE STANDPOINT OF A SECOND GATEKEEPING FUNCTION THAT I WOULD BE INCLINED TO SAY THAT MR. MACDONALD HAS PASSED THROUGH THAT GATE.
MR. BRUCE: WELL, YOUR HONOR, WE WOULD RESPECTFULLY DISAGREE WITH THAT. WE THINK THAT -- WHAT WE PROPOSE IS BOTH PARTIES PUT ON THEIR EVIDENCE AND THEN WE ANTICIPATE ARGUING TO THE COURT AT THE END OF THE HEARING THAT HE HASN'T MET GATEKEEPING.
WE'VE HEARD THE EVIDENCE AS A WHOLE BY THAT TIME SO YOU CAN MAKE A DETERMINATION THAT HE HAS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE NEW EVIDENCE, IF PROVEN, WOULD ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT NO FINDER OF FACT WOULD FIND THE DEFENDANT GUILTY.
AND THEN WE WOULD ASK IN THE ALTERNATIVE FOR THE COURT TO SAY AND, OF COURSE, THEY'LL BE ASKING THE OPPOSITE, BUT WE WOULD ASK THE COURT TO SAY IN THE ALTERNATIVE THAT THEY HAVEN'T PROVEN THE MERITS OF THEIR BRITT CLAIM BECAUSE WE THINK THE PREPONDERANCE OF THE EVIDENCE WILL SHOW THAT IT'S NOT TRUE AND THE SAME WITH THE UNSOURCED HAIR CLAIM.
SO, WE VIEW SORT OF GATEKEEPING TO BE IN TEMPORARY SUSPENSION UNTIL THE END OF THE HEARING AND THE COURT CAN RULE ON THE MERITS AND GATEKEEPING BECAUSE HE HAS NOT GOTTEN OVER THAT HIGH BAR OF CLEAR AND CONVINCING EVIDENCE. AND YOUR HONOR CAN'T REALLY DETERMINE THAT PER THE FOURTH CIRCUIT UNTIL YOU'VE HEARD THE EVIDENCE AS A WHOLE.
THE COURT: WELL, I THINK YOU'RE PROBABLY CORRECT ON THAT. BUT I THINK THE TWO ARE SO INTERTWINED, THE MERITS AND THE GATEKEEPING FUNCTION, I REALLY DON'T SEE HOW IN MY MIND YOU CAN SEPARATE IT OUT. THE ISSUE IS, AS I SAY, CONFLATED. THEY'RE ALL ONE IN THE SAME ISSUE.
WELL, COUNSEL, WE'LL JUST GO FORWARD AND LET THE MOVANT BEGIN WITH HIS EVIDENTIARY PRESENTATION.
MR. BRUCE: YOUR HONOR, CAN I SAY ONE MORE THING? I KNOW WE'RE DOING THIS UNDER CIVIL RULES, WHICH I'M NOT USED TO, BUT MY UNDERSTANDING IS THAT ALL EXHIBIT LISTED BY BOTH PARTIES IN THE PRETRIAL ORDER TO WHICH THERE WERE NO OBJECTIONS NOTED ARE IN ALREADY, IS THAT RIGHT?
THE COURT: THAT'S CORRECT. THAT'S CORRECT.
MR. BRUCE: SO, WE DON'T HAVE TO OFFER THEM TO GET THEM ADMITTED AGAIN?
THE COURT: NO. NO. YOU'RE CORRECT.
MR. BRUCE: OKAY. AND WE'LL JUST DEAL WITH THE -- YOUR HONOR, IS IT YOUR HONOR'S PLEASURE TO DEAL WITH THE FEW OBJECTIONS THAT EACH PARTY DOES HAVE AS THEY COME UP?
THE COURT: YES.
MR. BRUCE: OKAY.
THE COURT: FRANKLY, I DIDN'T RECEIVE YOUR PROPOSED JOINT PREHEARING ORDER UNTIL THURSDAY MORNING OF LAST WEEK AND I WENT THROUGH IT AS BEST I COULD, BUT IT'S QUITE LENGTHY. AND ALSO, I THINK I MADE AN ESTIMATE OF SOMETHING LIKE 500 EXHIBITS LISTED.
NOW, I THINK THIS IS GOING TO TAKE A LOT MORE TIME THAN THIS WEEK AND NEXT WEEK. DO YOU THINK WE CAN GET THROUGH IT IN TWO WEEKS?
MR. BRUCE: YES, YOUR HONOR, I THINK WE'LL GET THROUGH. I THINK THAT BOTH PARTIES DID A LOT OF SORT OF BELT AND SUSPENDERS IN THEIR EXHIBITS LISTS, WANTED IT IN THERE IN CASE THEY NEEDED IT. I THINK WE'LL ONLY ACTUALLY BE CALLING UP A FRACTION OF THOSE AS THE EVIDENCE IS PRESENTED.
THE COURT: ALL RIGHT, SIR. WELL --
MR. WIDENHOUSE: AND, YOUR HONOR, I DON'T MEAN TO INTERRUPT, BUT JUST TO SORT OF GIVE YOU OUR PERSPECTIVE ON THIS, THE REASON THAT WE PUT ALL THE EXHIBITS TOGETHER, AT LEAST FROM OUR PERSPECTIVE, AND WE HAVE THEM IN NOTEBOOKS FOR YOU AND EVERYBODY, IS BECAUSE AT THE END OF THE HEARING WHEN YOU GO BACK TO MAKE A DECISION ABOUT THE CASE, YOU'RE GOING TO HAVE TO MAKE IT IN THE CONTEXT OF THE EVIDENCE AS A WHOLE.
I DON'T THINK THAT MEANS YOU'RE GOING TO HEAR EVERY DROP OF THE EVIDENCE AS A WHOLE IN THE COURTROOM BECAUSE WE'RE NOT GOING TO READ 500 EXHIBITS TO YOU. YOU KNOW, WE FIGURE YOU'RE CAPABLE OF READING THAT. AND THERE'S A LOT OF TRANSCRIPTS AND A LOT OF OTHER THINGS.
AND THAT'S ALSO WHY WE'LL BE ASKING AT THE END OF THE HEARING TO BE GIVEN AN OPPORTUNITY TO PREPARE A MEMORANDUM SUMMARIZING THE EVIDENCE AS A WHOLE --
THE COURT: CERTAINLY.
MR. WIDENHOUSE: -- FROM OUR PERSPECTIVE TO ASSIST YOU, AND I'M SURE THE GOVERNMENT WOULD LIKE TO DO IT AS WELL.
THE COURT: CERTAINLY.
MR. WIDENHOUSE: I DON'T THINK WE'RE GOING TO BE SITTING HERE FOR TWO WEEKS MOVING IN 500 EXHIBITS. I THINK THEY'RE GOING TO BE, AT LEAST FROM OUR PERSPECTIVE, A HANDFUL THAT WE'LL USE IN THE HEARING AND THE OTHER TWO OR 300 ARE PUT THERE FOR YOU TO SHOW YOU WHAT WE THINK IS THE EVIDENCE AS A WHOLE. AND I SUSPECT THAT'S PROBABLY TRUE FOR THE GOVERNMENT AS WELL.
MR. BRUCE: WE AGREE WITH THAT, YOUR HONOR.
THE COURT: ALL RIGHT, SIR. WELL, LET ME SAY AT THE OUTSET, ON THURSDAY MORNING AT NINE O'CLOCK I HAVE A SHOW CAUSE HEARING THAT WILL TAKE ABOUT AN HOUR AND SO WE'LL START AT TEN O'CLOCK ON THURSDAY MORNING. I DON'T THINK IT WILL TAKE LONGER THAN THAT, BUT YOU NEVER CAN TELL.
ALL RIGHT, COUNSEL, IF YOU WANT -- DO YOU WANT TO START OFF, MR. WIDENHOUSE, WITH YOUR EVIDENTIARY ISSUES?
MR. WIDENHOUSE: YES, SIR. CAN I MAKE A BRIEF OPENING STATEMENT --
THE COURT: YES, SIR.
MR. WIDENHOUSE: -- TO SORT OF LAY OUT WHERE WE THINK WE'RE GOING TO GO?
AS YOU KNOW, YOUR HONOR, WE'RE HERE TODAY ON TWO MAJOR CLAIMS, WHAT WE CALL THE BRITT CLAIM AND THE DNA CLAIM OR WHAT WE'VE NOW RELABELED THE UNSOURCED HAIRS CLAIM WITHIN THE AMBIT OF THE EVIDENCE AS A WHOLE.
IN DIRECTING THE CONTEXT OF THE HEARING, THE FOURTH CIRCUIT REMINDED US OF THE SOBERING WORDS OF THE LATE JUDGE FRANCIS MURNAGHAN IN HIS CONCURRING OPINION OF THE DIRECT APPEAL OF THIS CASE WHERE HE SAID THIS CASE PROVOKES A STRONG UNEASINESS IN ME. THE WAY IN WHICH A FINDING OF GUILT IS REACHED IS, IN OUR ENDURING SYSTEM OF LAW, AT LEAST AS IMPORTANT AS THE FINDING OF GUILT ITSELF. MACDONALD WOULD HAVE HAD A FAIRER TRIAL IF THE STOECKLEY RELATED TESTIMONY HAD BEEN ADMITTED. I WOULD SUGGEST SURELY HIS UNEASINESS SHOULD NOT BE LOST ON THE COURT AS IT EMBARKS ON THE TASK AT HAND.
OUR POSITION AND CONTENTION IS THAT BOTH THE BRITT CLAIM AND THE UNSOURCED HAIRS CLAIM VIEWED SEPARATELY AND VIEWED TOGETHER IN THE CONTEXT OF THE EVIDENCE AS A WHOLE, WHATEVER WE DECIDE THAT MEANS OR YOU DECIDE THAT MEANS, WILL SHOW THAT NO REASONABLE JUROR WOULD HAVE FOUND JEFFREY MACDONALD GUILTY HAD IT HEARD THIS EVIDENCE.
STATED ANOTHER WAY, THE EVIDENCE SUPPORTING THESE CLAIMS IN LIGHT OF THE EVIDENCE AS A WHOLE WILL COMPELLINGLY DEMONSTRATE REASONABLE DOUBT AS TO JEFFREY MACDONALD'S GUILT.
THE MATERIAL EVIDENCE IN THIS CASE WILL COME FROM OUR PERSPECTIVE FROM SEVERAL SOURCES; LIVE TESTIMONY OF WITNESSES WHO WILL TESTIFY IN THIS HEARING PRIMARILY ABOUT THE BRITT CLAIM, STIPULATIONS THAT THE PARTIES HAVE AGREED TO REGARDING THE FACTS ABOUT THE UNSOURCED HAIRS, AND MATERIALS THAT WILL BE OFFERED INTO THE RECORD AS PART OF THE EVIDENCE AS A WHOLE, THE NOTEBOOKS THAT ARE SURROUNDING THE WELL OF THE COURT.
THE BRITT CLAIM ENCOMPASSES THREE PARTS. FIRST, HELENA STOECKLEY MADE ADMISSIONS TO THE LATE MARSHAL JIMMY BRITT THAT SHE WAS IN THE MACDONALD HOUSE ON THE NIGHT OF THE MURDER AND THAT HE DID NOT KILL HIS FAMILY.
SECOND, MR. BRITT HEARD HELENA STOECKLEY TELL THE PROSECUTOR THE SAME THING WHEN SHE WAS INTERVIEWED, THAT SHE WAS IN THE MACDONALD HOUSE ON THE NIGHT OF THE MURDER.
THIRD, THE PROSECUTOR TOLD MS. STOECKLEY THAT IF SHE WENT INTO COURT AND SAID THAT, THAT SHE WAS IN THE HOUSE ON THE NIGHT OF THE MURDERS, SHE WOULD BE INDICTED FOR MURDER.
MS. STOECKLEY FELT THREATENED BY THAT STATEMENT WHICH CAUSED HER TO CLAIM SHE DID NOT REMEMBER THE NIGHT IN QUESTION WHEN SHE WAS CALLED TO TESTIFY.
AND BASED ON HER CLAIMED LACK OF MEMORY, NOT ONLY DID SHE NOT TESTIFY, BUT AT LEAST SIX WITNESSES WHO WERE PREPARED TO TESTIFY ABOUT THE STATEMENTS SHE HAD MADE TO THEM, THAT SHE WAS IN THE HOUSE, WERE ALSO NOT ALLOWED TO TESTIFY. AND THAT IS THE STOECKLEY RELATED TESTIMONY TO WHICH JUDGE MURNAGHAN REFERS.
IT'S IMPORTANT TO RECALL AS YOU EMBARK ON THIS PROCESS THAT HELENA STOECKLEY WAS NOT A STRANGER TO LOCAL POLICE AND LAW ENFORCEMENT IN THE LATE '60S AND EARLY '70S.
SHE OFTEN FUNCTIONED AS AN INFORMANT FOR THEM WHICH MEANS THEY, THE POLICE, RELIED ON HER. THEY DEEMED HER TRUSTWORTHY SO HER STATEMENT SHOULD CARRY SOME WEIGHT WITH THE COURT.
WHEN WE PRESENT OUR EVIDENCE, YOU'LL HEAR FROM WADE SMITH, ONE OF JEFFREY MACDONALD'S LAWYERS. HE WILL RELATE HOW JIMMY BRITT CAME TO HIM IN EARLY 2005, BECAUSE MR. BRITT WANTED TO GET A HEAVY BURDEN OFF OF HIM.
HE TOLD MR. SMITH ABOUT HELENA STOECKLEY'S ADMISSIONS TO HIM, THAT SHE WAS IN THE MACDONALD HOUSE, AND THAT JEFFREY MACDONALD DID NOT KILL HIS FAMILY.
HE TOLD MR. SMITH ABOUT BEING IN THE ROOM WITH THE PROSECUTOR WHEN THE INTERVIEW HAPPENED. THE PROSECUTOR TOLD HER IF SHE TESTIFIED THAT WAY SHE WOULD BE INDICTED FOR MURDER.
YOU'RE GOING TO HEAR FROM MARY BRITT WHO WAS MARRIED TO JIMMY BRITT AT THE TIME OF THE MACDONALD TRIAL. SHE WILL RELATE THAT MR. BRITT TOLD HER HE WAS GOING TO SOUTH CAROLINA TO GET AN IMPORTANT WITNESS AND THAT WHEN HE RETURNED HE TOLD HER THE WITNESS SAID SHE WAS IN THE HOUSE. WHEN HE CAME BACK FROM COURT THE FOLLOWING DAY HE WAS DISAPPOINTED BECAUSE MS. STOECKLEY WAS NOT ALLOWED TO TESTIFY.
YOU'RE GOING TO HEAR FROM GENE STOECKLEY, WHO IS HELENA STOECKLEY'S BROTHER. HE'S GOING TO TESTIFY ABOUT WHAT HIS MOTHER TOLD HIM ABOUT HELENA -- HIS SISTER'S CONFESSIONS TO THE MOTHER INCLUDING ONE MADE WHEN SHE KNEW SHE WAS DYING. HE WILL RELATE THE CIRCUMSTANCES SURROUNDING THE AFFIDAVIT THAT HIS MOTHER GAVE THAT'S PART OF THE RECORD OF THIS CASE.
THIS AFFIDAVIT CORROBORATES HELENA'S STATEMENTS THAT SHE WAS IN THE MACDONALD HOUSE ON THE NIGHT IN QUESTION, THAT JEFFREY MACDONALD DID NOT KILL HIS FAMILY, AND THAT SHE HAD BEEN AFRAID TO TELL THE TRUTH.
YOU'RE GOING TO HEAR FROM LAURA REDD WHO WAS THE NOTARY WHO WITNESSED THIS AFFIDAVIT. AND YOU'LL HEAR FURTHER CORROBORATING TESTIMONY ABOUT STOECKLEY'S PRESENCE IN THE HOUSE AND FEAR OF PROSECUTION.
WE ALSO HOPE TO PRESENT EVIDENCE FROM JERRY LEONARD WHO WAS APPOINTED TO REPRESENT MS. STOECKLEY AFTER SHE WAS NOT -- SHE DID NOT TESTIFY.
WE BELIEVE HE'LL INVOKE THE ATTORNEY-CLIENT PRIVILEGE, BUT WE'RE GOING TO ASK THE COURT TO LIFT THE PRIVILEGE AND HEAR HIS TESTIMONY AT LEAST IN CAMERA TO HEAR WHAT HE HAS TO SAY ABOUT WHAT MS. STOECKLEY TOLD HIM ABOUT THIS INCIDENT.
WE BELIEVE OUR EVIDENCE WILL SHOW THAT MR. BRITT HEARD MS. STOECKLEY ADMIT BEING IN THE HOUSE, ADMIT SHE WAS IN THE HOUSE, AND WAS AFRAID AND DID NOT TESTIFY. ALL OF THIS BEING, OF COURSE, NEWLY DISCOVERED EVIDENCE NOT AVAILABLE TO THE DEFENSE AT TRIAL.
WITH REGARD TO THE DNA CLAIM, I SIMPLY WANT TO SAY WHAT YOU'RE GOING TO MOSTLY HEAR ARGUMENT ABOUT IS THREE UNSOURCED HAIRS, EXHIBIT -- OR SPECIMEN 58A1, WHICH WAS A HAIR FOUND ON THE BEDSPREAD IN KRISTEN MACDONALD'S ROOM; SPECIMEN 75A, WHICH IS A TWO AND A QUARTER INCH BODY OR PUBIC HAIR WITH ROOT AND FOLLICLE INTACT RETRIEVED AT THE CRIME SCENE FROM OFF OR UNDER THE BODY OF COLETTE MACDONALD; AND SPECIMEN 91A, WHICH IS A HAIR WITH THE ROOT INTACT FOUND ALONG WITH SOME BLOOD RESIDUE, WE CONTEND, UNDERNEATH THE FINGERNAIL OR IN THE FINGERNAIL SCRAPINGS OF KRISTEN MACDONALD.
THOSE THREE SPECIMENS, THOSE THREE HAIRS, ARE SOME EVIDENCE OF INTRUDERS IN THE MACDONALD HOUSE ON THE NIGHT IN QUESTION.
DR. MACDONALD'S ACCOUNT OF THE INCIDENT HAS BEEN CONSISTENT FROM THE VERY BEGINNING, THAT THERE WERE FOUR INTRUDERS IN THE HOUSE.
WE THINK THOSE UNSOURCED HAIRS ARE SOME EVIDENCE THAT SUPPORTS THE DEFENSE THEORY OF THE CASE, INFORMATION THAT THE JURY DID NOT HEAR ABOUT, INFORMATION THAT THE JURY COULD HAVE USED TO BELIEVE THE DEFENSE THEORY AT TRIAL, AND FIND THAT THERE WAS REASONABLE DOUBT AS TO DR. MACDONALD'S GUILT.
WE CONTEND THE EVIDENCE HERE, IN LIGHT OF THE EVIDENCE AS A WHOLE, VALIDATES JUDGE MURNAGHAN'S CONCERN AND WILL CONVINCE THE COURT THAT IT'S APPROPRIATE TO GRANT DR. MACDONALD A NEW TRIAL.
THE COURT: WOULD YOU LIKE TO MAKE AN OPENING STATEMENT, MR. BRUCE?
MR. BRUCE: YOUR HONOR, WE WOULD LIKE TO RESERVE OUR OPENING STATEMENT UNTIL THE BEGINNING OF OUR EVIDENCE.
THE COURT: SURELY.
MR. BRUCE: THANK YOU.
THE COURT: ALL RIGHT, SIR. CALL YOUR FIRST WITNESS.
MR. WIDENHOUSE: WE CALL WADE SMITH.
MR. WILLIAMS: YOUR HONOR, WE HAVE A WITNESS ROOM THAT'S AT THE END OF THE LONG HALLWAY AND I HAVE AN ASSISTANT WHO'S HERE TO GET THE WITNESSES.
THE COURT: SURE.
MR. WILLIAMS: IF WE CAN HAVE JUST A MOMENT.
THE COURT: FINE.
MR. WILLIAMS: AND, YOUR HONOR, IF I COULD APPROACH WITH OUR NOTEBOOKS OF THE EXHIBITS FOR THE COURT.
THE COURT: THANK YOU.
THE COURT: MR. WIDENHOUSE, I JUST WANT TO MENTION ONE OTHER THING. AT OUR LAST MEETING WHEN MR. MILES WAS HERE WE HAD SOME DISCUSSION AS TO THE BURDEN OF PROOF.
SECTION 2255(h)(1) SAYS CLEAR AND CONVINCING EVIDENCE THAT NO REASONABLE FACT FINDER COULD HAVE FOUND MACDONALD GUILTY OF THE OFFENSES.
DO YOU AGREE THAT THAT'S THE BURDEN?
MR. WIDENHOUSE: I THINK THAT'S THE ULTIMATE BURDEN, YES, YOUR HONOR.
THE COURT: ALL RIGHT. THANK YOU VERY MUCH. DO YOU AGREE, MR. BRUCE?
MR. BRUCE: YES, YOUR HONOR.
THE COURT: THANK YOU VERY MUCH.
WADE SMITH, DEFENSE WITNESS, SWORN