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July 12, 1991: Jeffrey MacDonald's Motion to Enlarge the Record With the Supplemental Affidavit (#3) of John Murphy with attachments
 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
FAYETTEVILLE DIVISION

 

UNITED STATES OF AMERICA

:

 

v.

:
:

      NO. 75-26-Cr-3
      90-104-CIV-3-D

JEFFREY R. MACDONALD

:

 


MOTION OF JEFFREY R. MacDONALD TO ENLARGE THE RECORD
WITH THE SUPPLEMENTAL AFFIDAVIT (#3) OF JOHN J. MURPHY

As grounds therefore, petitioner states as follows:

1. On July 8, 1991, this Court issued a Memorandum of Decision denying petitioner's Motion for a New Trial pursuant to 28 U.S.C. S2255.

2. To the extent that the Court's decision rests on the finding that petitioner's prior counsel, Brian J. O'Neill, may have received the crucial confirmatory lab note of government forensic expert Janice S. Glisson in August of 1984, the Court has relied on an incomplete record.

3. As demonstrated in 8-11, infra, and in the Supplemental Affidavit (#3) of Paralegal John J. Murphy, July 12, 1991 (hereinafter "Murphy Supp. Aff. (#3)"), additional post-argument review of Brian O'Neill's FOIA files, all of which are presently in the custody of the law firm of Silverglate & Good, has uncovered additional information which confirms that O'Neill's office never received Janice Glisson's confirmatory blond synthetic wig hair lab notes, and that indeed it was not until May 7, 1990, that this lab note was first discovered by Paralegal Murphy in Baltimore.

4. In petitioners' Reply Brief at 78-79, and at the oral argument which took place before the Court on June 26,1991, counsel for petitioner argued that attorney Brian J. O'Neill, who represented petitioner on his 1984 New Trial Motions, never received Janice Glisson's "confirmatory" synthetic blond hair note prior to, or during the litigation involving the 1984 motions; and that, in fact, this confirmatory note was never disclosed to Dr. MacDonald until May 7, 1990, when paralegal Murphy found the note while searching through files at the Army CID Crime Records Center in Baltimore, Maryland, pursuant to the Freedom of Information Act ("FOIA").

5. In further support thereof, petitioner noted that (1) Attorney Karen Davidson and Paralegal John Crouchley, both of whom both worked for Attorney O'Neill at the time the 1984 motions were being prepared, had made an unsuccessful search of O'Neill's files and records (including materials received under FOIA) for additional laboratory notes expressly for the purpose of confirming Janice Glisson's questioned findings of synthetic blond hairs, and (2) a thorough search of O'Neill's files by paralegal Murphy in 1991 failed to disclose the existence of Glisson's confirmatory lab note in those files. (See, Petitioner's Reply Brief at 80-814 Affidavit of John J. Murphy (12). May 13, 1991, 5).

6. In its Response of the United States to Defendant's Petition for Post-Conviction Relief Pursuant to 28 U.S.C., Section 2255 (hereinafter "GB") at 16 and 77, filed with the Court on February 22, 1991, the government argued that a letter from George M. Andersen of the Army's FOIA office to O'Neill, dated August 7, 1984, indicates that the Army CID released to O'Neill a package of FOIA materials which purportedly contained Glisson's confirmatory synthetic blond hair lab note. Specifically, the government contends that the August 7, 1984, transmittal letter lists a series of document numbers which demonstrate that Glisson's confirmatory note --confirming her earlier questioned findings of synthetic blond wig hairs --must have been released to O'Neill on that date. (See GB at 16,77; Andersen Aff. It 12-13.)

7. On June 26, 1991, the government argued for the first time at oral argument that, while Davidson and Crouchley may have conducted a diligent search for something that would have confirmed Glisson's questioned blond synthetic wig hair findings, neither of them was still working for O'Neill on August 7, 1984, the date on which Glisson's confirmatory blond synthetic wig hair lab note was supposedly released by the Army CID to O'Neill under FOIA.

8. Further review of O'Neill's FOIA correspondence files has revealed the absence of the August 7, 1984, Andersen transmittal letter. (Murphy Supp. Aff. (#3) at 7) In addition, this review of O'Neill's FOIA files has failed to reveal the existence of a March 2, 1984, letter from Andersen to O'Neill, which the government contends put O'Neill on notice that additional FOIA requests to the Army were being processed and that additional FOIA materials might be forth-coming. (Murphy Supp. Aff. (#3) at 1 7)

9. The nonexistence of the August 7, 1984 transmittal letter in any of O'Neill's FOIA files serves to confirm that O'Neill's office never received the August 7, 1984, FOIA release from the Army CID, and thus never received Glisson's confirmatory blond synthetic hair note prior to, or during, the period in which the 1984 motion were litigated. Furthermore, because O'Neill also appears never to have received the March 2, 1984, letter from Andersen, there is no reason for O'Neill, or those who worked for him, to have believed reasonably that addition, all FOIA releases might be forthcoming from the Army.1
________
1. Even if O'Neill had received the March 2, 1984, Andersen letter, the government is hard put to argue that O'Neill was put on notice that additional Army FOIA materials would definitely be released by the Army, much less that the material would contain laboratory bench notes documenting findings of synthetic blond wig hairs. In the first place, Andersen's letter does not definitively state that the documents would be forthcoming. Rather, it simply states, "Your request for the United States Army Criminal Laboratory Reports and the Laboratory Records are also being referred to the Department of Justice for their releasability review and response to you." Finally, Andersen's letter mentions nothing about the contents of the materials that O'Neill might have expected to receive after the Department of Justice completed its "releasability review." in any event, the evidence is clear that O'Neill did not receive such a letter.

10. O'Neill's FOIA correspondence files also indicate that on June 30, 1996, Steve Kapiloff, an employee of O'Neill conducted a review of all FOIA releases received by O'Neill. This review fails to make any reference to any documents released by the Army CID to O'Neill in 1984. Kapiloff --who was apparently reviewing all of the FOIA releases received by O'Neill's office from various government agencies, including those received from the Department of Justice, the FBI, the Department of the Army, the Bureau of Prisons and the Internal Revenue Service, for the purpose of determining whether there were any outstanding or unanswered FOIA re-requests --indicated in a memo to O'Neill that the Army had released under FOIA a total of 3,048 pages to O'Neill, which corresponds exactly with the total number of pages received by O'Neill's office in two Army CID FOIA releases dated March 28, 1983 and June 21, 1983, respectively. (Murphy Supp. Aff. (#3) at 8-9)

11. Thus, nearly two years after the date (August 7, 1984) on which the government claims that the Army CID released Glisson's confirmatory lab note to O'Neill, Kapiloff's review of O'Neill's FOIA files failed to turn Up the Army CID FOIA release which the government alleges must have contained Glisson's confirmatory synthetic blond wig hair lab note.2 Kapiloff's review of O'Neill's FOIA files is totally consistent with paralegal Murphy's 1991 review of O'Neill's FOIA files, in which he found no evidence that O'Neill ever received Glisson's confirmatory lab note or the August 7, 1984, transmittal letter.

For all the foregoing reasons and in the interests of the accuracy and completeness of the factual record, petitioner respectfully requests that the supplemental Affidavit (#3) of John J. Murphy be included as part of the record.
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2. As noted in the Supplemental Affidavit (13) of John J. Murphy at -1~9, filed herewith, Kapiloff's review took place long before O'Neill transferred his files to Robert Boyce of the MacDonald Defense Committee.

DATED: July 12, 1991

Respectfully submitted,

Harvey A. Silverglate
Philip G. Cormier
Thomas C. Viles

SILVERGLATE & GOOD
89 Broad Street, 14th floor
Boston, MA 02110-3511

Telephone (617) 542-6663
Telecopier (617) 451-6971

Norman B. Smith

SMITH, FOLLIN & CURTIS
BB&T Building
101 South Elm Street
Greensboro, NC 27401

Telephone (919) 274-2992
Telecopier (919) 274-8490

Attorneys for Jeffrey R. MacDonald

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