The Jeffrey MacDonald Information Site is a compendium of information about the Jeffrey MacDonald case. MacDonald was convicted in 1979 of the murders of his pregnant wife and two small daughters. He is serving three life sentences for that brutal crime.


The Murders of Colette, Kimberley and Kristen MacDonald
 

The Jeffrey MacDonald Information Site

May 31, 1985: Amicus Curiae Brief for Jeffrey MacDonald on Behalf of
the National Association of Criminal Defense Lawyers with attachment


Note from Christina Masewicz: In several areas in this transcript, Jimmie Proctor is said to be
the father of Judge Dupree's grandson. Proctor and Judge Dupree's daughter
did not have a son, they had one daughter only.
 

Efriam Margolin, Esquire
Chairman, Amicus Curiae Committee
National Association of Criminal Defense Lawyers
240 Stockton Street
San Francisco, CA 94108
(415) 421-4347

Dennis H. Eisman, Esquire
Suite 1420 Robinson Building
42 South Fifteenth Street
Philadelphia, PA 19102
(215) 563-1610

STATEMENT OF THE CASE

The case of U.S. v. MacDonald has generated enormous amounts of public and media interest for the past 15 years. In addition, to extensive news coverage, this matter has been the subject of a best selling book and a television special viewed by more than 60 millions people. The National Association of Criminal Defense Lawyers is submitting this Amicus brief because of the potentially disastrous implications that a decision of this Court affirming the conduct of the Trial Judge and prosecution would have upon citizens throughout our land.

Dr. Jeffrey MacDonald is a professional who is fortunate enough, with the help of friends and relatives, to have been able to afford competent private counsel and investigators. In 1985 most defendants in criminal cases in the United States are represented by court-appointed lawyers who are generally underpaid, overworked, and unable to undertake the extensive investigation that has been on-going on behalf of Appellant herein.

As a result of this investigation, following Dr. MacDonald's conviction, shocking discoveries as more fully described in Appellant's brief and have been made with regard to the apparent misconduct of the trial judge and Prosecutors, before, during and following the trial.

What is also disturbing is that the evidence of the familial relationship of the Trial Court to the prosecution team and numerous instances of suppressed evidence was discovered only by the attorneys for Dr. MacDonald as a result of a momentous battle, following the trial, for documents under the Freedom of Information Act. Only a small percentage of requested documents have been provided to Appellant and already numerous instances of impropriety have been uncovered. One can only surmise what the tens of thousands of pages of documents, which the prosecutors steadfastly continue to refuse to turn over to appellant, might contain.

If this type of conduct: the appearance of, if not the reality of impropriety of a trial judge; the surreptitious interrogation of an accused by an investigative agent of the government during trial; ongoing intentional suppression of potentially exculpatory evidence; and the refusal of an apparently tainted trial judge to consider volumes of after-discovered evidence; is condoned by this Court, the rights of all of our citizens to a fair trial are in serious jeopardy.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

I. Does this willful, knowing, and intentional refusal of a United States District Court Judge to: (A) Disclose a close family relationship to an attorney who had a large role in pushing for the criminal prosecution of a defendant to be tried before him, and, (B) Recuse himself where this relative's professional and personal reputation and standing could be damaged if the accused were acquitted, clearly create, at least, the appearance of impropriety, requesting a new trial?

II. Can the government be permitted to circumvent a defendant's sixth amendment right to counsel and fifth amendment privilege against self-incrimination, by having the trial court order one of their investigative agents "examine" the defendant, during trial, when in fact that "examination" was a ruse to obtain incriminating statements from the defendant?

III. In a criminal case, where there is evidence that the government withheld, suppressed, and even destroyed potentially exculpatory evidence, is a new trail, at the minimum, constitutionally mandated?

IV. In the face of substantial after-discovered evidence, is the refusal of the trial court, even to grant an evidentiary hearing, let alone a new trial, constitutionally defective?

ARGUMENT

I. Does this willful, knowing, and intentional refusal of a United States District Court Judge to: (A) Disclose a close family relationship to an attorney who had a large role in pushing for the criminal prosecution of a defendant to be tried before him, and, (B) Recuse himself where this relative's professional and personal reputation and standing could be damaged if the accused were acquitted, clearly create, at least, the appearance of impropriety, requesting a new trial?

(1). HISTORY OF INVOLVEMENT OF JIMMIE C. PROCTOR IN THIS CASE

This case, from the beginning, February 17, 1970, has been one of the most celebrated, publicized, litigated and, one might say without fear of contradiction, controversial murder cases in the history of North Carolina, if not the United States.

One of the individuals who has publicly claimed a large responsibility for having Dr. MacDonald charged and brought to trial is Jimmie C. Proctor, former assistant United States Attorney for the Eastern District of North Carolina and chief of its criminal division.

From the time of the murders, Proctor publicly has stated that he had a strong belief as to MacDonald's guilt. Proctor represented the United States Attorney and FBI throughout the Army hearings in 1970. According to documents obtained for years after the trial of this case, it has been demonstrated that Proctor played an active role in advising the Army prosecutors and representing government witnesses at the army criminal hearings. At one point, he was temporarily barred from entering the hearing room with an FBI witness because the Army had ordered the hearing closed to the public. This incident was widely reported by the media throughout North Carolina. (See Addendum "A" attached hereto)

During the hearings, agents of the army assaulted counsel for MacDonald in full view of at least three reporters. The local press, by news stories and editorials during the period of July 21 and 22, 1970, resoundingly condemned the army's conduct and transparent cover-up attempt. According to the documents obtained recently, Proctor had pressed his superiors to have MacDonald's lawyers, including lead trial counsel in this case, Bernard L. Segal, arrested and charged with Federal crimes as a result of the attack, but his recommendation was rejected.

Following the dismissal of the charges against MacDonald by the Army Proctor prepared to try MacDonald in the United States District Court and led the effort to discredit as a suspect, Helena Stoeckley, a Fayetteville hippie identified as a participant in the killings. According to other government documents obtained following MacDonald's conviction, Proctor asked the FBI for an investigation to "eliminate" Ms. Stoeckley as a suspect.

During this time Ms. Stoeckley had been a reliable informant for law enforcement agencies according to newly discovered documents.(See Argument III, infra.)

In the reports of Army agents, obtained in 1983 by MacDonald, it is revealed that Proctor urged the Army help him convince his superiors, in the Justice Department in Washington to press for indictment of MacDonald by assisting him in bringing pressure to bear upon them.

According to the few documents that MacDonald's lawyers have been able to squeeze from the Government to date, Proctor himself made repeated attempts to convince his superiors in the Justice Department to bring federal charges. In his own words, "We begged, pleaded, even threatened to resign." (See exhibit "A" attached to Motion for Reconsideration of Defendant's Motion to Recuse)

According to the same exhibit, Proctor made several trips to Washington to convince, Victor Woerheide, the person originally assigned to try this case) that he had a case strong enough to convict MacDonald.

(2) RELATIONSHIP OF JIMMIE C. PROCTOR TO THE TRIAL COURT

During the time that Proctor was actively begging the Justice Department to bring charges of murder against MacDonald, he was the son-in-law of North Carolina attorney Franklin T. Dupree, Jr. Proctor was also the father of Mr. Dupree's grandson. Mr. Dupree was appointed to the Federal Bench in 1971. According to Proctor, he then resigned from the U.S. Attorney's office because "it would have been inappropriate for the Judge's son-in-law to try cases before him. (Exhibit "A" Motion for Reconsideration of Defendant's Motion to Recuse). Judge Dupree is the trial judge in this matter.

(3) THE WILLFUL, KNOWING, AND INTENTIONAL NON-DISCLOSURE OF THE RELATIONSHIP OF THE
ASSIGNED TRIAL JUDGE TO AN ATTORNEY WHO HAD A LARGE ROLE IN PUSHING FOR
THE CRIMINAL PROSECUTION OF THE DEFENDANT

Prior to the trial of this matter, it was a matter of public record, documented by news media reports, that Jimmie C. Proctor played an active role on behalf of the government in this case. Nowhere in the October 1, 1984 Order denying recusal, does Judge Dupree deny knowing of Proctor's involvement in this matter. In addition, prior to trial, it is clear that neither the Trial Court, the prosecutors, nor Proctor, made it known to the defendant or his attorneys, that Proctor was, or had been the son-in-law of the judge and the father of his grandson.

Mr. Proctor's active role in pushing for the indictment and trial of MacDonald was well known to both Woerheide and other members of the prosecution team when this case was assigned to Judge Dupree. No memorandum or documentary evidence of this extensive involvement was provided to MacDonald's attorneys prior to trial. No mention of the familial relationships were made by anyone, including the Judge prior to trial. The only way this evidence was uncovered was through numerous post-trial, Freedom of Information Act requests of Appellant and his counsel.

There can be no question that there was a duty upon the Court, the prosecutors and even Proctor, to disclose this familial relationship. If there had been such disclosure, MacDonald's attorneys could have moved for at least a hearing on this issue where, if full disclosure of Proctor's role in pushing for prosecution had been made by the Government, a ruling pursuant to 28 U.S.C. Section 144 would be required, and if dissatisfied, MacDonald could have appealed.

Such is the process mandated by law, since without such a pretrial hearing with the right of appellate review of "appearance of partiality", all ruling of Judge Dupree which supported Proctor's position are now, and forever will be, necessarily suspect.

(4) THE ACQUITTAL OF MACDONALD WOULD CAUSE DAMAGE TO THE PROFESSIONAL REPUTATION
AND STANDING OF A PERSON WITH CLOSE FAMILY TIES TO THE TRIAL COURT

Jimmie Proctor staked his professional reputation upon his conclusion that MacDonald murdered his family. According to both public and private statements for the past 15 years, he did everything in his power to have appellant convicted of these crimes, his only disappointment being that the death penalty could not be carried out.

This is not a case wherein a relative of the trial judge happened to be a member of a law firm which had a case pending, where that relative had nothing to do with the case. Even in that instance, our Circuits have suggested even such a tenuous tie might cause the "appearance of partiality." See SCA Services v. Morgan, 557 F.2d 11O, 116 (7th Cir. 1977); Rice v. McKenzie, 58l F. 2d 1114, 1116 (4th Cir. 1978); Potashnick v. Port City Constructor Co., 609 F.2d 1101.1112 (5thCir. 1980).

In the instant case, the trial Judge's relative devoted years of his professional career to the end of having Dr. Jeffrey MacDonald tried and convicted of murder. According to his actions, while assigned to this matter, as gleaned from the few documents provided by the government thus far, Proctor zealously fought his superiors in the Justice Department who repeatedly refused to prosecute MacDonald. All of his colleagues in the Department of Justice, United States Attorney's office, the Federal Bureau of Investigation, The Criminal Investigation Division of the Army knew of Mr. Proctor's forceful advocacy to convict MacDonald.

While the lower court professed no specific recollection of having discussed this matter with his son-in-law, prior to his nomination to the Federal Bench, he would have had to have been deaf dumb and blind to have missed news reports of Mr. Proctor's role in this famous case.

It can also be assumed that while he was a practicing attorney, Judge Dupree, had no reason not to discuss this famous case within his family.

Furthermore, Proctor continued to publicly stake his reputation upon the guilt of MacDonald, even while Judge Dupree was considering the motions which are the subject of this appeal.

In interviews given to the press and and appearing in North Carolina in the home town of Judge Dupree on November 28, 1984, Proctor forcefully related his professional opinions, actions and that he had "begged, pleaded, even threatened to resign," to have MacDonald brought to trial. (Exhibit "A" to Motion For Reconsideration of Defendant's Motion to Recuse)

This, along with all of the other actions of Mr. Proctor placed into a position whereby if MacDonald were granted a new trial, not only would MacDonald be once again cloaked with the presumption of innocence, but in the event of an acquittal, the good name and reputation of the father of Judge Dupree's grandson could be damaged for having persecuted an innocent man.

To make such a new trial in front of a new judge potentially even more unpalatable would be the possibility that if it were to be later proven that Proctor had participated in, or had knowledge of, the suppression or destruction of evidence which might have been exculpatory to MacDonald, Mr. Proctor's right to practice law could conceivably be placed in jeopardy.

The overwhelming factual basis demonstrating the trial court's relationships and their implications is precisely the type of "appearance of partiality" which Congress sought to eliminate when it amended Title 28 United States Code, Section 455(a) to provide: "any justice, or judge of the United States shall disqualify himself in any proceeding in which his partiality might reasonably be questioned." No decision of any Circuit Court of Appeal in which there was an active participation in the subject matter case by an attorney who had some tie to the trial court has not resulted in recusal.

It appears that the copy of the decision of the Seventh Circuit in the case of S.J. Groves & Sons v. International Brotherhood of Teamsters, Supra. upon which Judge Dupree relied failed to contain the words "[W]here the appearance of impropriety is already established, a taint on the judicial system remains as long as [the judge] presides over the case." 581 F.2d 1231, 1247, quoting Fredonia Broadcasting Corp., v. RCA Corp., 569 F.2d 251 (5th Cir. 1978).

In the instant case, the failure of the trial court and government to disclose, pretrial, the relationships and allow a full hearing which would have revealed Proctor's pervasive role in pushing for MacDonald's arrest and conviction, rests clearly upon the Court and Government.

The taint upon the appearance of partiality of Judge Dupree during the pretrial, trial, and post-trial proceedings cannot now be washed away. Every action which Judge Dupree took sustaining the theory, work, acts, and statements of his son-in-law become suspect.

While the lower court stated he had no conscious recollection of discussions he might have had with his son-in-law before he became a Judge, (but before this case was assigned to him) he quite understandably cannot say what lasting impressions might have been conveyed to him by Mr. Proctor, his daughter, or other members of the family who may have talked with him about the most famous case of Mr. Proctor's career.

The mere fact Judge Dupree ruled in favor of the government upon every major issue pretrial, at trial, and in post-trial motions certainly is not evidence that such rulings were made because of any conscious partiality on his part. However, when now viewed in the context that every ruling in this case upon major issues by Judge Dupree supported Proctor's position to the detriment of the accused it becomes clear that his partiality "might reasonably be questioned." Set Potashnick v. Port City Construction Co. 609 F.2d 1101, at 1112 (5th Cir. 1980).

The Court in the Potashnick case also cited the fact that Congress, in drafting section 455, "recognized that non-economic interests may affect a judge's bias prejudice." Porashnick. v. Port City Construction Company, supra. at 1113, rehearing and rehearing en banc denied, 1980, citing E. Thode, Reporter's Notes to Code of Judicial Conduct, 63, 66 (1973); hearings on S. 1064 before the Subcommittee on improvements on the Judiciary, 93rd Cong., 1st Session 51-52, 106-108 (July 1971 - May 1973).

As the Supreme Court of the United States said in In re Murchison, 349 U.S. 133, at 136 (1954):

"A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however that "every procedure which would offer a possible temptation to the average man as a judge...not to hold the balance nice, clear and true between the State and the accused denies the latter due process of law. "Tumey v. Ohio, 273 U.S. 510,532 (1927). Such a stringent rule may sometimes bar trail by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way "justice must satisfy the appearance of justice." Offutt v. United States, 348 U.S. 11 (1954).

Even before the relationship between Judge Dupree and Jimmie Proctor was discovered by MacDonald's lawyers, millions of Americas who read the best selling book about this case, Fatal Vision by Joe McGinniss, already were questioning the fairness of MacDonald's trial.

McGinniss, who went on the highly rated CBS TV program, 60 Minutes, talk shows and radio broadcasts, to promote his book, was clearly pro-government and anti-MacDonald in his views. (a detailed discussion of McGinniss' treachery to MacDonald can be, found in the Philadelphia Bar Association Quarterly, Vol. 48 No. 1 Shattered Vision, P.23). However, even though McGinniss was an antagonist of MacDonald and a supporter of the Government and Proctor in his conclusions as to MacDonald's guilt, his graphic description of the trial court's conduct at trial was not dispute, by either side. Nor has there been any request for retraction, or libel action filed by Judge Dupree. McGinniss wrote:

"Judge Dupree, who had been appointed to the federal bench in 1971 by Richard Nixon, was possessed of an unusually mobile expressive face, and from the earliest days of the trial the expression most often seen upon it as Bernard Segal conducted cross-examination was one of distaste.

"Obviously alert, attentive, and sometimes even taking notes during Jim Blackburn's (the prosecutor) direct examination, the judge would lean back in his chair with his eyes closed, grimacing in exasperation or rubbing his temples as if his head ached during those periods when Segal was repetitively questioning a prosecution witness.

"With even casual spectators openly remarking on the judge's expression, it seemed only logical to assume that it would, to some degree, indicate to the jurors where his sympathies (or lack of sympathy) lay, and possibly even suggest to some where their own belonged.

"It was not by body language alone, however, that Judge Dupree seemed to be placing obstacles along Jeffrey MacDonald's path to freedom. His ruling on several major evidentiary motions did much to shape the course of the trial." Fatal Vision, by Joe McGinniss, pp. 500-501.

If this is the impression that observers of the trial who support the prosecution, one can only imagine the impression which the defense felt.

While such widely circulated reports of a judge's conduct are not admissible evidence, certainly in tandem with proof of the relationship between the Judge and Proctor being subsequently revealed, it is clear the public confidence in the judicial system which Congress sought to foster by enacting Title 28 United States Code, Section 455, is being undermined.

In addition, it remains inexplicable, why Judge Dupree, in light of the clear language of Title 28 United States Code, Section 144, refused to have another judge decide the recusal motion. The affidavit submitted filed with appellants recusal motion must be accepted as true and the challenged judge may not inquire into facts beyond the face of the affidavit. See, Berger v. United States, 255 U.S. 22 (1921); United States v, Samuel v. University of Pittsburgh, 395 F. Supp. 1275 (W.D. Pa. 1975) vacated on other grounds, 538 F.2d 991 (3rd Cir. 1976).

The National Association of Criminal Defense Lawyers believe that any decision which sustains this type of conduct by a trial Judge as demonstrated in this case, is a clear and present danger to public confidence in our courts. Such approval would completely emasculate not only the laws of the United States, but also be in direct contravention to all decisions of all Circuit Courts of Appeal, including the Fourth Circuit.

This Court has emphatically stated:

"The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his impartiality on the basis of all circumstances.

* * * * * * * * * *

"The inquiry begins and ends with whether a reasonable person would have a reasonable basis for doubting the judge's impartiality," Rice V. McKenzie, 581 F.2d 1116, at 1117 (4th Cir. 1978).

It is submitted that if this Court, upon the facts in this matter, does not believe that a reasonable person might have a reasonable basis for doubting Judge Dupree's impartiality, then no citizen's rights to an impartial tribunal will be safe.

II. THE GOVERNMENT CANNOT BE PERMITTED TO CIRCUMVENT A DEFENDANT'S SIXTH AMENDMENT RIGHT TO
COUNSEL AND FIFTH AMENDMENT PRIVILEGE AGAINST SELF- INCRIMINATION, BY HAVING THE TRIAL COURT
ORDER ONE OF THEIR INVESTIGATIVE AGENTS "EXAMINE" THE DEFENDANT, DURING TRIAL, WHEN IN FACT
THAT EXAMINATION WAS A RUSE TO OBTAIN INCRIMINATING STATEMENTS FROM THE DEFENDANT

Almost four years after the trial of this case, and numerous request under the Freedom of Information Act, counsel for MacDonald learned for the first time that they had been deprived of critical testimony at trial by the intentional misconduct of the prosecution.

In an elaborate scheme to mislead the defense and trial court, the prosecutors engineered a brilliant plot which transpired briefly as follows:

The most crucial testimony cited by the army hearing officer in 1970 finding that the charges against MacDonald were "untrue" was the testimony of the psychiatrists who examined MacDonald within months of the murders. All of the psychiatrists, both for the defense and army, reported that in their professional opinions, MacDonald was incapable of committing the crimes herein.

When the defense sought to introduce this psychiatric testimony at the trial before Judge Dupree in 1979, the government moved to exclude it. Judge Dupree ruled that before he would not rule on the defendant's right to present psychiatric testimony until MacDonald first agreed to be examined by a Psychiatrist designated by the Prosecution.

The person designated by the prosecution, it learned four years later, had been a key member of the investigative team that convinced the Justice Department to bring instant charges. Dr. Brussel's services as a forensic criminologist for the government, according to the FOIA documents, actually began as early as 1971.

Brussel had advised the government eight years before his examination of MacDonald that he had a firm opinion as to MacDonald's guilt and elaborate theories and explanations to support his conclusion. The government never informed the defense nor the Court that the person they were designating to examine MacDonald had already concluded he was guilty.

Whatever Brussel told Judge Dupree in camera concerning his "examination", it is clear that Judge Dupree was never told of the real role of Brussel. However, based upon what Brussel did say privately Judge Dupree excluded psychiatric testimony for this defendant.

In addition, while Brussel prepared no written report, exhibits to the Motion to Vacate Sentence make it clear that the questions asked in the "examination" related to MacDonad's inability to explain certain physical facts and not his psychiatric condition.

The very questions which were asked by Brussel in this "examination" and that MacDonald could not explain were asked a few days later by the prosecution. Given what Dr. Brussel's real role for 8 years had been, that of investigative criminologist, that line of questioning would be expected. (See Motion to Vacate Sentence and attached exhibits and declarations for a more detailed exploration of the facts and implications of the conduct of Brussel and the prosecutors.)

The conduct of the prosecutors which the lower court excuses completely is so abhorrent to the our conceptions of fairness and decency, not to mention the Fifth and Sixth Amendments to the Constitution, that to imagine this court upholding this conviction is nothing short of nightmarish. Such a decision would open the doors to not only intentionally deceive trial judges, but have investigative agents gain access to defendants, without their counsel present, for the purposes of bolstering their cases.

It was totally impossible for Brussel to conduct an objective examination of MacDonald eight years after concluding he was guilty. Again, even if the government had not intentionally withheld his true role for the prosecution from the court and defense, any professional opinion would necessarily, again, be tainted with the "appearance of partiality" which might have led to a different decision by Judge Dupree on the issue of psychiatric testimony.

Our courts have consistently ruled that where intentional governmental interference with a defendant's right to counsel is demonstrated, no prejudice need be proven. Briggs v. Goodwin, 698 F.2d 486 (D.C. Cir. 1983) United States v. Levy, 577 F.2d 200 (3rdCir. 1971). This case shows the need for such a rule. To decide otherwise would encourage deceit, and similar plots in the future.

The appellant herein has also demonstrated actual prejudice resulting from the prosecutor's misconduct. An important defense was denied MacDonald due to the use of Dr. Brussel. It was his tainted report, in camera, which led to Judge Dupree excluding psychiatric testimony which had a key role in charges being dismissed by the Army. Whatever Brussel said to Judge Dupree will never be known, but it is clear that before this discussion, Judge Dupree had not excluded psychiatric testimony, and after this meeting he did.

Even if the affidavits of MacDonald and his counsel are ignored with regard to the actual purpose of this examination, it is clear that the senior forensic criminologist on the prosecution team, Dr. Brussel surreptitiously obtained an interview with the defendant, during trial and counsel was excluded from that interview. This type of interference with counsel, when discovered, has been condemned by our courts consistently. See Estelle v. Smith 451
U.S. 454, (1981); United States v. Henry, 477 U.S.264 (1980); United States v. Wade, 388 218 (1967); Massiah v. United States, 337 U.S. 201 (1964).

What also makes the actions of the prosecutors incapable of a logical defense, is that their failure to inform defense counsel of Dr. Brussel's real role in this case completely deprived the defendant of the effective assistance of counsel. His attorneys were unable to raise these issues before Dr. Brussel was permitted to "examine" their client. Had counsel been informed of the true facts concerning Dr. Brussel they could have moved the court to have the prosecutors select an unbiased psychiatrist. Judge Dupree could have ruled that another psychiatrist examine MacDonald, that his lawyers be present at any examination by Dr. Brussel, or could have at least viewed his examination with caution, knowing his prior firm opinion concerning MacDonald. All of these options were foreclosed by the deception of the Prosecutors. Such conduct cannot be applauded by this court. To do so would be an invitation to the government to make similar intrusions into other defendant's Fifth and Sixth Amendment rights.

III. IN A CRIMINAL CASE WHERE THERE IS EVIDENCE THAT THE GOVERNMENT WITHHELD, SUPPRESSED,
AND EVEN DESTROYED POTENTIALLY EXCULPATORY EVIDENCE, A NEW TRIAL, AT THE MINIMUM
IS CONSTITUTIONALLY MANDATED

Late in 1983, after repeated requests before, during and, after the trial of this case in 1979, the government turned over documents pursuant to the Freedom of Information which revealed that at least five items of physical evidence which the government knew or should have known to be potentially exculpatory, had been withheld, suppressed and even destroyed. It is stressed that the government continues to resist turning over tens of thousands of other documents requested by appellant to this day. What those aggressively withheld documents contain one can only imagine.

However, from the small amount of information obtained 1983, MacDonald's lawyers learned for the first time that the defense, despite detailed pretrial requests, had not been told of potentially key exculpatory evidence that had been either withheld, "lost" or "destroyed" by government investigators:

(a) A bloody syringe found in the MacDonald home was never made known to the defense prior to trial,

(b) bloody clothing and boots alleged to have belonged to Helena Stoeckley were turned over to the CID, "lost" and their loss was never revealed to the defense prior to trial,

(c) human skin found under Mrs. MacDonald's fingernail which was "lost" by the army and this loss was not made known to the defense prior to trial,

(d) photographs of the letter "G" on Helena Stoeckley's wall which were similar, according to government agents to the printing found on the wall of the MacDonald apartment, were deliberately excluded from discovery made available to the defense prior to trial,

(e) the government failed to inform the defense prior to trial that it had destroyed seven fingerprint negatives of photographs taken inside the crime scene which could have shown that strangers were in the MacDonald apartment.

In addition to these items of physical evidence suppressed by the government, in 1984 government reports which attested to the high reliability of Helena Stoeckley as a police informant from 1969 through 1971 were discovered. These documents (appended to Defendant's Addendum to Reply to Government's Opposition to Motion For New Trial) were never made available to the Court when the government moved to bar Stoeckley's testimony as an unreliable witness showed:

(a) For a period of at least a year before and after the MacDonald murders Helena Stoeckley gave the police of Fayetteville and Nashville good information which they relied upon to make arrests and was considered a reliable informant.

(b) Stoeckley was a prime source in a special undercover assignment investigating other policemen for the Nashville police department.

(c) as a result of information supplied by Stoeckley a Nashville police officer was forced to resign from the police force.

(d) A CID investigator said or April 29, 1971, in a written report that "Helena is still furnishing Bowlin's unit (Nashville police) with outstanding narcotics information..."

(e) Stoeckley was attending classes at Aquinas Jr. College in Nashville while working, with the police, and

(f) DURING THE TIME SHE WAS AN "OUTSTANDING" RELIABLE INFORMANT FOR THE NASHVILLE POLICE SHE ADMITTED TO THEM "THAT SHE HAD WITNESSED THE MURDERS AND KNOWS WHO COMMITTED THE MURDERS," IN THIS CASE.

The suppression of these items of physical evidence certainly weakened MacDonald's contentions that intruders were responsible for the murders, and also, the ability of his counsel to argue the gross incompetence of the investigators.

The suppression of the evidence of Helena Stoeckley's reliability, however, might have lost the trial in itself. Had the government informed the defense and Judge Dupree that, during the period of at least one year before and one year after the MacDonald murders that Stoeckley's information was considered reliable enough to be probable cause to arrest numerous persons, that her information was considered "outstanding" by law enforcement agencies, and during this period of extreme lucidity, which could be attested to by numerous law enforcement officials, had confessed to being involved in these murders, testimony concerning her confessions could never have been barred by the trial judge relying upon Rule 804, (b)(3).

The government's reliance upon United States v. Brady, 456 U.S. 152 (1982), with regard to their suppression of evidence and misleading the defense and trial court is similar to a child who murders his parents and asks for sympathy because he is an orphan. The instant case revolves around evidence which the government withheld before and for several years after the trial, not evidence which the defense knew of, or should have known of.

MacDonald's post-trial motions were based upon violations of the government of the spirit and, the letter of Brady v. Maryland, 373 U.S.83 (1963) and United States v. Agurs, 427 U.S. 97 (1976). The suppression of exculpatory evidence in any proceeding are of a Constitutional magnitude, regardless of the procedural posture of that Case. See Giglio v. United States, 405 U.S. 150 (1972) [Rule 33 new trial motion] Giles v. Maryland, 386 U.S. 66 (1967) [post conviction act proceeding under state statute]; Hamrick v. Bailey, 386 F.2d 390 (4th Cir. 1967) [writ of habeas corpus].

This case does not involve alleged suppression of one item which could have been helpful to the defendant, or which was clearly irrelevant, and therefore the government could have been acting in good faith not realizing the evidence was potentially exculpatory.

This case does involve a clear pattern of intentional, willful, and malicious acts on the part of the government to deny an accused a fair trial. No reported case following Brady involved as many and as blatant a conspiracy to deprive a defendant the amount and type of evidence as has been already demonstrated in this case.

A decision upholding the right of the government to act in a fashion that it did so in this case would be a license to the government to deny every accused a fair trail.

IV. IN THE FACE OF SUBSTANTIAL AFTER-DISCOVERED EVIDENCE, THE REFUSAL OF THE TRIAL COURT EVEN
TO GRANT AN EVIDENTIARY HEARING, LET ALONE A NEW TRIAL, IS CONSTITUTIONALLY DEFECTIVE

Through the efforts of highly qualified investigators following the trial of this case, vast amounts of evidence, corroborated by many witnesses, detailed the existence of a group which matched the descriptions which MacDonald claimed had murdered his family.

The evidence showed that the group was seen going to the crime scene shortly before the murders and some were seen running from the crime scene shortly after the murders. A motive for this group to commit the crime was uncovered.

Three of the members of the group made admissions concerning their involvement in this crime within days of the murders. Two members later added their guilt and two others made admissions as to some form of involvement. A forensic expert concluded that Colette was killed by a left-handed individual while MacDonald was right handed. The group member alleged by witnesses to have killed Colette was left handed.

Stoeckley gave away her bloodstained clothes and boots a few days after the murders indicating both her involvement in the crime and her consciousness of guilt. She also, while acting as an "outstanding" undercover police informant admitted her participation in this crime, in addition to admitting her involvement on several other occasions.

In addition, it is submitted that the evidence which was discovered after the trial to have been suppressed, withheld, "lost, " and "destroyed" by the government also falls into the category of newly discovered evidence as defined by our Courts. See United States ex rel. Marzeno v. Gengler, 574 F.2d 730 (3rd Cir. 197 8). As stated Argument III, supra., never has there been as many instances of suppressed evidence in any case decided by our appellate courts.

With regard to the volumes of evidence with regard to the Stoeckley group, all of the tests with regard to the commonly accepted definition of after discovered have been met. The evidence was discovered since the trial, it was not reasonably capable before or during the trial, it is material to the issues at trial, and finally it is of such a nature that it would probably produce an acquittal in the event of a new trial. 8A Moore's Federal Practice para. 33.03'[1.] Again, as with the suppressed evidence, no recorded case decided contained the volume and quality of evidence that had been submitted to the trial court on behalf of appellant herein. For the trial court to have refused even a hearing is indefensible. If Rule 33 of the Federal Rules of Criminal procedure has any meaning whatsoever, a new trial should be granted in this case. If the principles set forth in Brady v. Maryland, supra., which supposedly to ensure a fair trial both where there has been suppression of evidence by the government and newly discovered evidence by the defendant, are of any moment to this Court, a new trial must be granted.

CONCLUSIONS

In light of the appearance of impropriety on the part of the trial judge, the intentional, and malicious use of a governmental investigative agent to "examine" the defendant without the presence of counsel during the trial, the suppression of vast quantities of evidence which was potentially exculpatory, and the quality after-discovered evidence, Dr. Jeffrey R. MacDonald is entitled to a new trial.

With tens of thousands of pages of documents still being withheld from appellant by the government, in light of what has been discovered thus far, new violations of fundamental rights, will in all probability be discovered.

A man has spent almost six years in prison as a result of an unfair trial by a judge for whom a reasonable basis exists to doubt his partiality.

The cause of the necessity for this relief is not the appellant, but the conduct of the government and the court below in denying appellant a new trial.

While this Court is understandably reluctant to grant new trials, the failure to do so in this case would establish precedents supporting this type of judicial and government misconduct in other cases.

JUSTICE IS THE END OF GOVERNMENT. IT IS THE END OF CIVIL SOCIETY. IT EVER HAS BEEN AND EVER WILL BE PURSUED UNTIL IT IS OBTAINED OR UNTIL LIBERTY BE LOST IN THE PURSUIT. JAMES MADISON


Respectfully submitted,

Dennis H. Eisman, Esquire
Suite 1420 Robinson Building
Philadelphia, PA. 19102

Efriam Margolin, Esquire
Chairman, Amicus Curiae Committee
National Association of Criminal Defense Lawyers
240 Stockton Street
San Francisco, CA. 94108

CERTIFICATE OF SERVICE

I certify that on May 31, 1985, I caused to be deposited in the United States mail, postage prepaid, the requisite copies of Amicus Curiae Brief and Motion for Leave to file same on the following attorneys:

Brian M Murtagh, Esquire
Special Prosecutions Section
United States Attorney's Office
United States Courthouse Room 4401
Washington, D.C. 20001

Samuel T Currin, Esquire
United States Attorney
Post Office Box 26897
Raleigh, North Carolina 27611


Brian O'Neill, Esquire
1137 Second Street, Suite 106
Santa Monica, California 90403


Dennis H. Eisman, Esquire

Attachment: July 1970 Fayetteville Observer article

Attachment: July 1970 Fayetteville Observer article

 

 

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