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July 12, 1991: Defense Motion to enter John Murphy's Aff #3 in the record with attachments
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
FAYETTEVILLE DIVISION
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UNITED STATES OF AMERICA
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v.
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NO. 75-26-Cr-3
90-104-CIV-3-D
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JEFFREY R. MACDONALD
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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
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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
Attachments
Attachment #1: MOTION OF JEFFREY R. MacDONALD TO ENLARGE THE RECORD TO INCLUDE THE SLIDE BOX CONTAINING SYNTHETIC HAIR SLIDES
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
FAYETTEVILLE DIVISION
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UNITED STATES OF AMERICA
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v.
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CASE No. 75-26-CR-3
90-104-CIV-3-D
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JEFFREY R. MACDONALD
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Jeffrey R. MacDonald, petitioner in the above-captioned case, hereby moves this Honorable Court, pursuant to Fed. R. App. P. 10(e)t to include as part of the record the so-called "slide box" shown to the Court at the oral argument of the instant petition, which contains, among other things, the slides of synthetic blond wig hairs taken from the clear handled hairbrush found in the MacDonald home. For purposes of this motion, the term "slide box" includes the box itself, the cover to the box on which the contents of the box were listed, and the contents of the box itself, which includes both the blond synthetic wig hair slides and the cardboard slide mailers (covers) that accompany each slide. As grounds for this motion, petitioner states as follows:
1. At the oral argument on June 26, 1991, the government presented to the court for inspection the slide box and its contents, which included the cover to the slide box, the blond synthetic hair slides, and the slide mailers (covers) that accompanied each slide. The government however, failed to request that the slide box and its contents be formally entered into the record as an exhibit.
2. As argued by counsel for petitioner at oral argument, the handwritten notations on the slide box cover are highly relevant to the issue of petitioner's lack of knowledge concerning the government's findings of 22-inch blond synthetic wig hairs. In his Brief at 31, and at oral argument, petitioner argued that the government's failure to include its blond synthetic wig hair findings in its final typed lab reports, while at the same time including references to "dark" synthetic hairs in the same reports, led the defense to believe that there were no exculpatory blond synthetic hairs found by the government.
3. The government responded by arguing that the defense was given full and complete access to the physical exhibits and that, had the defense's expert, John I. Thornton, opened the slide box and looked at the individual slide mailers, he would have discovered that the government's lab examiners had found 22-inch synthetic blond wig hairs in the clear handled hairbrush taken from the MacDonald home.
4. The government's argument failed to account for the fact that (a) the defense had no reason to believe that the government had made such exculpatory findings of blond synthetic wig hairs, and (b) the cover to the slide box referenced only "black" and "grey" synthetic hairs. As a result, anyone on the defense team who had read the final typed lab reports which referenced "dark" synthetic hairs would have had absolutely no reason to believe that the slide box contained anything other than the slides on which were mounted the "black" and "grey" ("dark") synthetic hairs. Had the slide box been properly labeled, such that it were to accurately list the entire contents of the box, petitioner's trial counsel and his forensic experts (a) would have learned of the government's blond synthetic hair findings and (b) could have made additional requests for the laboratory bench notes of the government's lab technicians who examined the blond synthetic wig hairs.
5. In its Memorandum of Decision dated July 8 1991 the Court, having directly viewed the slide box at the oral argument on June 26, 1991, made reference to "the box containing the blond synthetic fibers from the clear-handled hairbrush . . . [the cover of which was] labeled 'black, black & grey (illegible) synthetic hairs'". (Memorandum of Decision at 25) Thus, the slide box, its cover and its contents should be made part of the record to be available for inspection by the Court of Appeals.
For all the foregoing reasons, the "slide box" and its entire contents should be made part of the formal record.
DATED: July 12, 1991
Respectfully submitted,
Harvey A. Silverglate
Philip G. Cormier
Thomas C. Viles
SILVERGLATE & GOOD
89 Broad Street, 14th floor
Boston, NA 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
Attachment #2: July 12, 1991: Affidavit #3 of John J. Murphy
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
FAYETTEVILLE DIVISION
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UNITED STATES OF AMERICA
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v.
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CASE No. 75-26-CR-3
90-104-CIV-3-D
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JEFFREY R. MACDONALD
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I, John J. Murphy, being first duly sworn, state under oath the following:
1. I am a paralegal with the law firm of Silverglate & Good, 89 Broad Street, Fourteenth Floor, Boston, Massachusetts, 02110, counsel for the petitioner Jeffrey R. MacDonald in the above-styled and numbered action.
2. I have reviewed materials released post-trial under the Freedom of Information Act ("FOIA") to Dr. MacDonald's prior counsel, Attorney Brian O'Neill, including the correspondence from the government which purportedly accompanied these releases. My examination of these FOIA materials --in addition to documents filed by the government in support of its position, the record in the case, and interviews with Dr. MacDonald's prior counsel and others associated with the defense --indicates that the "confirmatory" lab note of Janice Glisson (see Murphy Aff. 23, Ex. 1, p. 36, October 16, 1990), which I saw for the first and only time at the Army CID Crime Records Center in Baltimore, Maryland on May 7, 1990, was in fact never received by Attorney O'Neill prior to, nor during, the litigation involving the 1984 motions, despite the government's contention that it must have been released to O'Neill on August 7, 1984.
3. Statements contained hereinafter are made on information and belief, based upon my review of the files and FOIA materials, unless otherwise noted.
4. The government, in its Supplemental Memorandum of the United States, filed with the Court on May 20, 1991, makes the following statement: "More importantly, however, the 'confirmatory' Glisson bench notes, that petitioner now claims would have triggered further defense investigation, were not first furnished to O'Neill1 by the government in 1990 as he maintains, but in August 1984, while the first habeas petition was awaiting argument in this court." (See, Gov. Supp. Memo, p. 7-8.)
5. In support of its papers, the government also submitted the Affidavit of George M.
Andersen, who was purportedly one of the persons responsible for overseeing the release of Army CID FOIA materials to O'Neill. Attached to the Andersen Affidavit are copies of two letters, dated March 2, 1984 (Andersen Aff. p. 13, Ex. 69), and August 7, 1984 (Andersen Aff. p. 11, Ex. 71) from Andersen to O'Neill, concerning the release of Army CID laboratory bench notes, which were found at the Fort Gordon CID Laboratory.
6. With respect to the March 2. 1984 Andersen letter, the government contends that O'Neill was put on notice that additional FOIA requests made by O'Neill to the Army were being processed, and that additional FOIA materials might be forthcoming. As for the August 7, 1984 transmittal letter, the government maintains that this second letter from Andersen to O'Neill demonstrates that Glisson's second set of blond synthetic hair lab notes, which confirm her earlier questioned findings of 22-inch synthetic blond wig hairs, must have been released to the defense, because the number written on Glisson's confirmatory lab note falls within the sequence of document numbers listed in the letter. (Response of the United States To Defendant's Petition For Post-Conviction Relief Pursuant To 28 U.S.C., Section 2255 (hereinafter "GB"), p. 16, 77; Andersen Aff. p. 12-13).
7. After the oral argument, which took place before the Court on June 26, 1991, I undertook a further review of O'Neill's FOIA correspondence files. During the course of this review, I was unable to locate either the March 2, 1984, or the August 7, 1984, Andersen letters. Nor have I ever previously come across these two letters in O'Neill's files. In addition, at no time during the course of my various reviews of O'Neill's F0IA files, have I ever come across any document with a date stamp resembling that used by O'Neill's office, which has a date in the year 1984. The nonexistence of the August 7, 1984, transmittal letter in O'Neill's files serves as additional confirmation that O'Neill's office never received Glisson's confirmatory lab note, in which she confirmed her earlier questioned findings of 22-inch synthetic blond wig hairs.
Moreover, the fact that the March 2, 1984, Andersen letter is also nowhere to be found in O'Neill's FOIA files indicates that O'Neill, or those working for him, had no way of knowing, prior to the filing of the 1984 New Trial Motions, that additional FOIA releases might be forthcoming from the Army.
8. In addition to the above, during the course of my most recent review of O'Neill's files, I came across an internal memorandum which further confirms that O'Neill's office never received Glisson's confirmatory synthetic hair lab note. This memo, dated June 30, 1986, from an employee named Steve Kapiloff to O'Neill, entitled "Jeffrey MacDonald, FOIA Request, Summary of Materials," appears to have been written in response to a request by O'Neill for an inventory of all FOIA materials that had been received by O'Neill's office as of that date. (A copy of this memo is attached hereto as Exhibit 1.) Kapiloff's review encompassed FOIA materials received by O'Neill from the Department of Justice, the Army, the FBI, the Bureau of Prisons and the Internal Revenue Service. On page three of the Kapiloff memo, the following appears with respect to FOIA disclosures by the Army CID:
It appears as though the Department of the Army (DOA) sent all of the materials requested to MacDonald. The material sent does contain some deletions. In a letter dated 12/19/83 BON [Brian O'Neill] requested that the deleted material be released. No reply to this request was in the file. A memo in the files says that 3,048 documents (it must mean pages) were sent by DOA. 59 documents (pages) were denied, then reconsidered and sent.
9. Two transmittal letters sent by the Army CID to O'Neill with the March 28, 1983 (Andersen Aff. 1 12, Ex. 55), and June 21, 1983 (Andersen Aff. 1 121 Ex. 58) FOIA releases, note the release) of "387 pages" and "2,122 pages" respectively, with "[a] total of 59 pages . . . retained for a more in-depth review." The combined total of these two 1983 Army FOIA releases is 3,048 pages, which is the exact number of pages, noted by Kapiloff during his re-review of the FOIA materials in O'Neill's possession in June of 1986, at a time when O'Neill was still Lead counsel for Jeffrey MacDonald, and well before he turned his files over to Robert Boyce of the MacDonald Defense Committee in February of 1987 (Boyce Aff. 2; O'Neill Aff. 12).
10. Thus, a complete review of O'Neill's files, contemporaneous and subsequent to the litigation of the 1984 New Trial Motions, showed the FOIA release of only 3,048 pages, which corresponds exactly to the number of pages released in the Army's combined March 28, 1983 and June 21, 1983 FOIA releases.
11. Had O'Neill or his office actually received the FOIA release of August 7, 1984 --which the government claims to have made, and which it alleges consisted of 2,012 pages --the total number of pages found by Kapiloff during his review of the FOIA materials, made long after the materials were supposedly sent by the Army CID FOIA office would have consisted of 5,060 pages instead of the 3,048 pages that he actually found. Interestingly, the Kapiloff memo makes note FOIA releases received by O'Neill's office from the FBI as late as 4/10/84, which were included in his review. This suggests that had materials been received by O'Neill's office from the Army in August 1984, they, too, would have been reviewed and discovered by Kapiloff and included in his memorandum to O'Neill. All of this leads me to conclude that O'Neill, for whatever reason, never received the FOIA materials which the Army CID FOIA staff claims to have released to him on August 7, 1984, and which the government contends would have contained Glisson's second set of bench notes confirming her discovery of the presence of 22-inch blond synthetic wig hairs in the clear-handled hairbrush found in the MacDonald home.
John J. Murphy
Signed and sworn to before me this 12th day of July, 1991.
David J. Fine
Notary public
My commission expires June 10, 1994
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1/ It is assumed that the government was referring to present counsel rather than Brian O'Neill in making this statement, as Brian O'Neill has not represented Jeffrey MacDonald since the end of of 1986, and petitioner has not claimed that O'Neill received the confirmatory note in 1990, but that present counsel did.
O'Neill & Lysaght MEMORANDUM
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TO:
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BON
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From:
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Steve Kapiloff
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DATE:
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June 30, 1986
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SUBJECT: Jeffrey MacDonald, FOIA Request, Summary of Materials
1. DEPARTMENT OF JUSTICE
It appears that MacDonald requested all documents that the DOJ had concerning his case in 1980. DOJ responded that they had more than 90,000 pages concerning the MacDonald case. Later that year MacDonald modified the request. He told DOJ that he did not need any documents from the trial or other court hearings (approximately 51,000 pages) and he did not need any newspaper clippings (a large number according to DOJ). 14,000 pages of the original 90,000 originated with other departments, so DOJ sent these documents to the other departments for further review.
At this point, DOJ began sending documents to MacDonald. The documents came in 7 answers between February 15, 1983, and November 14, 1983. The documents released totaled 3,942 pages plus the 2nd volume of an interview of MacDonald conducted on 4/6/70, plus a copy of Col. Kriwanek's 2/18/70 press conference, plus a copy of a conversation between MacDonald and Alfred Kassab. Many documents were denied, approximately 4,400 pages. Of these denied pages approximately 3,000 pages were grand jury testimony. Several hundred more pages were attorney's handwritten notes. After an appeal 4 additional pages were released. Many of the documents which were denied were subsequently deleted from the request in a letter from BON dated 12/19/83. Attached are the lists of documents denied.
Apparently MacDonald would like to request much of the grand jury testimony which was denied to him. He is especially interested in the testimony of witnesses mentioned in McGinniss' book. He spoke to Diane on 11/25/85 and gave her a list of people whose testimony he wants. He wants:
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1.
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Alfred Kassab
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2.
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Mildred Kassab
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3.
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Mr. and Mrs. Robert Stevenson
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4.
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An unnamed reporter currently working in Denver, formerly from Fayetteville
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5.
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Mrs. Donald Kalin
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6.
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Mr. Donald Kalin
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7.
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Pamela Kalin
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8.
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All other members of the Kalin family
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9.
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Bruce Bailey, M.D., psychiatrist from Walter Reed
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10.
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Other psychiatrists and psychologists from Walter Reed
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11.
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James Mack, Ph.d
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12.
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Dr. Robert Sadoff
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13.
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Carole Mae Larsen
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14.
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Mary and Jack Andrews
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15.
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Jack Andrews, Jr.
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II. ARMY
It appears as though the Department of the Army (DOA) sent all of the materials requested to MacDonald. The material sent does contain some deletions. In a letter dated 12/19/83 BON requested that the deleted material be released. No reply to this request was in the file. A memo in the files says that 3,048 documents (it must mean pages) were sent by DOA. 59 documents (pages) were denied, then reconsidered and sent. Attached is a list of requested information from the documents with deletions.
III. FBI
Originally the FBI withheld all documents in their possession. However on appeal they began releasing material. In total approximately 3,100 pages were denied, many with deletions, and about 300 pages were withheld completely. On 11/1/83 MacDonald requested all photos, data notes, and bench and lab notes concerning the blue pajama top. These documents were received on 4/10/84. Attached is a list of requested information from the documents with deletions.
IV. BUREAU OF PRISONS
MacDonald requested all of the materials contained in the Bureau of Prisons (BOP) file about him. BOP sent 23 pages of documents on 3/5/84. Many other documents were releasable only to a physician authorized by MacDonald to receive the documents. They claim that MacDonald can receive other files from "local staff". MacDonald says that he wants to request more from BOP (or local prisons). He says he needs to see more things about his moves.
V. INTERNAL REVENUE SERVICE
The IRS released one document which it had concerning MacDonald. All other documents cannot be released without his written approval.
CERTIFICATE OF SERVICE
This is to certify that I have this 12th day of July, 1991, served copies of (1) Motion of Jeffrey R. MacDonald to Enlarge the Records to Include the Slide Box Containing Synthetic Hair Slides, (2) Motion of Jeffrey R. MacDonald to Enlarge the Record with the Supplement Affidavit (#3) of John J. Murphy, upon each of the below-listed parties via first class mail by placing a copy of the same in a postpaid envelope to:
Margaret Person Currin
United States Attorney
Eastern District of North Carolina
P.O. Box 26897
Raleigh, NC 27611
Laura Ross Blumenfeld
Attorney
General Litigation and Legal Advice Section
Criminal Division
United States Department of Justice
P.O. Box 887
Ben Franklin Station
Washington, D.C. 20044
Respectfully submitted,
Philip G. Comier
Silverglate & Good
89 Broad Street, 14th Floor
Boston, MA 02110
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