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

September 6, 1984: Addendum to Reply to Government's Opposition
to Motion to Set Aside Judgment of Conviction
 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
FAYETTEVILLE DIVISION

 

UNITED STATES OF AMERICA, plaintiff

:

 

VS.

:

    No. 75-26-CR-3

JEFFREY R. MACDONALD, defendant

:

 



ADDENDUM TO REPLY TO GOVERNMENT'S OPPOSITION TO MOTION TO SET ASIDE JUDGMENT OF CONVICTION:
DECLARATION OF MYRNA K. GREENBERG
 

NOW COMES Defendant, Jeffrey R. MacDonald, and respectfully offers to Addendum to Reply to Government's Opposition to Motion to Set Aside Judgment of Conviction;
Declaration of Myrna K. Greenberg filed in the Office of the Clerk for the United States District Court, Eastern District of North Carolina, on the 24th day of August, 1984.

The Addendum is as follows:

(1) The Declaration of Bernard L. Segal (#3).
(2) The Declaration of James A. Douthat.
(3) The Declaration of James R. Nance.
(4) The Declaration of Karen R. Davidson.
(5) The Declaration of Michael J. Malley.

The forgoing Addendum to Reply to Government's Opposition to Motion to Set Aside Judgment of Conviction; Declaration of Myrna K. Greenberg is herby respectfully submitted.

This 6th day of September, 1984


Wade M. Smith
Tharrington, Smith & Hargrove
300 BB &T Building
Post Office Box 1151
Raleigh, North Carolina 27602

DECLARATION OF BERNARD L. SEGAL (3)

I, Bernard L. Segal, declare as follows:

(1) I am an attorney at law. In 1979, I represented Dr. Jeffrey R. MacDonald in the criminal case captioned United States V. MacDonald, Case No. 75-26-CR-3 in the United States District Court for the Eastern District of North Carolina.

(2) My co-counsel at that trial were Wade M. Smith of North Carolina and Michael J. Malley of Phoenix, Arizona.

(3) My representation of Dr. MacDonald began in April 1970.

(4) I did not at any time during my representation of Dr. MacDonald have access to FBI Agent Tool's February 21, 1970 report of the briefing of the FBI by the CID. Contrary to the representations at page 3 of the Government's Memorandum of Points and Authorities in Opposition to the Motion to Set Aside Judgment of Conviction Pursuant to 28 U.S.C. 2255, this document was not made available to defense attorneys during the Army's Article 32 investigation.

(5) During the entire course of my representation, I was never aware that any women's clothing or boots had been turned over to CID investigator William Ivory. In fact, I was never aware of the existence of clothing or boots. Moreover, Army Captain James A. Douthat was under no duty to the defense team to keep the defense informed after his official representation of Dr. MacDonald ended at the conclusion of the Article 32 proceeding.

(6) Although at the Article 32 hearing the defense was aware of the possibility that a small fragment of skin had been found under Colette MacDonald's fingernail, the CID laboratory reports furnished to the defense team led the defense to believe that this skin never existed. The lab report stated: "Re-examination of Exhibits D-233 through D-239, E-4 and E-5 (fingernail scraping from the left and right hands of Colette, Kimberly, Kristen and Jeffrey MacDonald, debris from Colette MacDonald's right and left hands, did not reveal the presence of any skin particles."

(7) The defense never received copies of Ivory's statements regarding the skin. Therefore, replying on the representation in the lab reports the defense believed that what had appeared to be skin to the naked eye of Dr. Gammel was not actually skin. Moreover, the defense did not incorporate the fact of the lost skin in the Kassab/Malley allegations as the defense was not aware of the loss of the skin.

(8) At no time during my representation of Dr. MacDonald did I or any member of the defense team discover any reference to Agent Toledo's having photographed a letter "G" at Helena Stoeckley apartment. Although the defense made repeated requests for photographic evidence, the defense did not have access to photographs of the letter "G" painted on Helena Stoeckley's apartment, nor was the defense ever aware the Government had discovered a letter "G" painted in Helena Stoeckley's apartment and compared it with the letter "G" written in blood at the crime scene.

(9) The defense was unaware that the government had destroyed seven photographs and negatives of fingerprints. Rather, the defense was under the impression from Medlin's testimony at the Article 32 hearing that "the photographs, when they were printed were blurred." Medlin's had then indicated, during his testimony, that he had made more pictures to replace those that were "blurred" and that nine fingerprints and three palm prints had been lost in those photographs.

(10) As early as the Article 32 hearing, Dennis Eisman, one of my co-counsel, had requested that the Army provide investigating officers, counsel for the defense and the government with a set of the photographs so that they could conduct their own independent investigation regarding the identity of persons to whom those fingerprints belonged. Captain Somers replied:

"The negatives in this case, particularly the ones with which any difficulty might have been had, I can represent are undergoing further treatment, and so they are not presently available. The prosecution objects to complying with that request."

(Article 32 Hearing Transcript, page 536.)

(11) As late as 1979, the defense requested of the FBI fingerprint lab photos of all latent lifts or prints of photos taken of developed fingerprints from the crime scene, including those initially or subsequently evaluated as being of insufficient clarity for comparison.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this 28th day of August, 1984 at San Francisco, California.

Bernard L. Segal

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
FAYETTEVILLE DIVISION

 

UNITED STATES OF AMERICA, plaintiff

:

 

VS.

:

    No. 75-26-CR-3

JEFFREY R. MACDONALD, defendant

:

 


AFFIDAVIT

STATE OF VIRGINIA
CITY OF ROANOKE

BEFORE ME, the unsigned, personally appeared James F. Douthat, who upon oath deposes and states as follows:

(1) On June 6, 1967, I was admitted to practice law in the State of Virginia. I currently practice with the firm of Hazelgrove, Dickinson, Rea, Smeltzer & Brown in Roanoke, Virginia.

(2) From December 1, 1967, through November 30, 1971, I was a Captain in the Judge Advocate General Corps of the United States Army stationed at Fort Bragg, North Carolina. In 1970 I was assigned to the office of the Judge Advocate, at the JFK Center for Military Assistance and was appointed defense counsel for Capt. Jeffrey MacDonald in the Article 32 hearing into charges that Capt. MacDonald killed his wife and children.

(3) I have read the affidavit of Clifford Somers appended to the Government's Response to Motion to Set Aside Conviction in which Mr. Somers asserts that at the time of the Article 32 hearing I was aware of the loss of a piece of a piece of skin which had been scraped from under Mrs. MacDonald's fingernail during the course of the investigation.
Contrary to Mr. Somers statement, I was never aware that this piece of skin had been lost. Moreover, although Mr. Somers states that I castigated him at that time for the loss of this evidence, I do not believe that any such argument took place.

(4) As appointed military defense counsel for Capt. MacDonald, I compiled extensive files on the investigation of the death of his wife and children and the legal proceedings in which I was involved. Particular attention was paid to the physical evidence from the scene of the crime and laboratory reports analyzing such evidence were carefully gathered and indexed. If I had been advised of the loss of so crucial a piece of evidence as the piece of skin from Mrs. MacDonald's fingernail, I would have made a note of its loss which would have been part of my file. I have recently checked and no such information occurs in my laboratory file.

(5) I have not reviewed the transcript of the Article 32 investigation. However, I can state without hesitation that if the defense had been aware of the loss of the piece of skin, it would have been brought to the attention of the Article 32 investigation officer and made a part of the Article 32.

(6) In the fall of 1970, all charges against Capt. MacDonald were dismissed and he was discharged from the Army. I was advised that the Army Criminal Investigation Division (CID) was continuing its investigation into the death of his wife and children and on a number of occasions I was consulted by the CID investigators seeking information regarding the crime. When James R. Nance turned over items of clothing and boots to the CID, Capt. MacDonald had been discharged from the Army. My execution of a document acknowledging those items had been given to the CID was done at the investigating agent's insistence and was done by me to assist in the ongoing investigation. It should be remembered that at the time all charges against Capt. MacDonald had been dismissed and he had been discharged from the Army. I had no authority to represent a civilian.

(7) It was not until after Capt. MacDonald's conviction in the United States District Court that I was asked about the items of clothing and boots in the possession of the CID. At first I did not recall the evidence but after reviewing my files I found a copy of the document I had signed acknowledging these items had been turned over to the CID. This information was never given to the attorneys representing Capt. MacDonald prior to the trial in the United States District Court.

(8) Although I have informed the attorneys representing Capt. MacDonald of the existence of a witness that I assumed they did not know about, attended an interview of this witness by an FBI agent and made copies of portions of my files available as specifically requested, I have never considered that I have represented Capt. MacDonald after his discharge from the Army. Even though I did not represent Capt. MacDonald, if I had known information that would have been beneficial to the defense and not available through discovery, I would have made it available. Unfortunately, I was not advised of the impact of the items of clothing and boots by the CID nor did I consider that any evidence in the possession of the CID would not be made available to Capt. MacDonald's attorneys through routine discovery.

James F. Douthat

Sworn to me and subscribed before me this 5th day of September, 1984.

Francis K. Smith – Notary Public
My commission expires February 9, 1988

DECLARATION OF JAMES R. NANCE

I, James Nance, declare as follows:

(1) On May 4, 1984, I executed a declaration to be filed with Jeffrey R. MacDonald's Motion for New Trial in the case captioned United States v. MacDonald, case No. 75-26-CR-3 in the United States District Court for the Eastern District of North Carolina.

(2) With reference to the facts stated in that declaration, when I contacted William F. Ivory of the USACID to give him the clothes and boots Mrs. Betty Garcia had given me I spoke to him in the presence of James Douthat and told Mr. Ivory that these clothing and boots belonged to Cathy Perry and were possibly linked to the MacDonald case.

(3) I did not at the time state to Agent Ivory that "while there was no apparent connection with the MacDonald murders I was trying to humor Mrs. Garcia." I never represented to any member of the CID that I doubted Mrs. Garcia's belief that the clothing and boots in question were linked to the MacDonald murders. In fact, I had no reason to doubt Mrs. Garcia.

(4) On June 12, 1984, I was interviewed by Butch Madden of the FBI. Mr. Madden advised me that there was a note in Mr. Ivory's or another CID agent's possession to the effect that I had said Mrs. Garcia was mentally unstable. I never made such a statement and I never believed this to be true of Mrs. Garcia.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this 29th day of August, 1984 at Fayetteville, North Carolina.

James R. Nance, Jr.

DECLARATION OF KAREN R. DAVIDSON

I Karen R. Davidson, declare as follows:

(1) I am an attorney at law admitted to practice in the State of California and the Federal District Court for the Central District of California.

(2) I worked on the post-trial remedies for the defendant Jeffrey R. MacDonald in the case captioned United States v. Jeffrey R. MacDonald, Case No. 75-26-CR-3 in the United States District Court for the Eastern District of North Carolina from November 11, 1982 through February 15, 1984.

(3) As a part of my duties in the case, I reviewed the trial transcripts as well as the reports of investigation prepared by the United States Army and the United States Department of Justice.

(4) As part of my duties in this case, I reviewed all materials received pursuant to Dr. MacDonald's FOIA requests. I monitored the receipt of material and was involved in any necessary follow-up, e.g., telephone calls, letters and appeals.

(5) Our office received FOIA information from the Department of the Army, the Department of Justice and the FBI. The FBI deleted names from the records they provided us while the United States Army CID did not always do so. In reading through both the FBI and CID material and cross- referencing them, the defense was able to discern in many instances whose names had been deleted from the FBI material. It was through such a procedure that I was able to determine that Agent Tool had debriefed Agent Medlin.

(6) Our office first learned of Cathy Perry's clothing and boots through a CID receipt which we obtained through the FOIA. I remember personally sorting through the FOIA materials and discovering this CID receipt. The reason it is not date-stamped is due to the nature of our office procedure pertaining to "date stamping." Although every piece of paper which came in through FOIA was in theory date stamped, at times only the face page of materials which were stapled together was in fact date stamped. The CID receipt was among a group of papers stapled together and through inadvertence it was not date stamped.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this 27th day of August 1984 at Santa Monica, California


Karen R. Davidson

Subscribed and sworn to before me this 27th day of August, 1984 at Santa Monica, California

Peggy R. Seary
Notary Public in and for said Country and State
My commission Expires Oct. 13, 1987

DECLARATION OF MICHAEL J. MALLEY

I, Michael J. Malley, declare as flows:

(1) I am an attorney admitted to practice in Arizona and the District of Columbia.

(2) I represented Dr. Jeffrey R. MacDonald in the criminal case captioned United States v. MacDonald, Case No. 75-26-CR-3 from the onset of the case during the Army investigation in 1970 through the appellate process which ended in 1982.

(3) I did not at any time during my representation of Dr. MacDonald have access to FBI Agent Tool's February 21, 1970 report of the briefing of the FBI by the CID. Contrary to the representation at page 3 of the Government's Memorandum of Points and Authorities in Opposition to Motion to Set Aside Judgment of Conviction Pursuant to 28 U.S.C. section 2255, this document was not made available to defense attorneys during the Army's Article 32 investigation.

(4) During the entire course of my representation I was never aware that any women's clothing or boots had been turned over to CID Investigator William Ivory. In fact, I was never aware of the existence of this clothing and boots.

(5) Although the defense was aware of the possibility of a small fragment of skin having been found under Colette MacDonald's fingernail, the CID laboratory reports furnished to the defense team led the defense to believe that this skin never existed. The lab report stated:

"Reexamination of Exhibits D-233 through D-239, D-256, E-4 and E-5 (fingernail scrapings from left and right hand of Colette, Kimberly, Kristen MacDonald, debris from Colette MacDonald right and left hands) did not reveal the presence of any skin particles."

The defense did not incorporate the fact of the loss of the skin in the Kassab-Malley allegations, as the defense was not aware of the loss of the skin at this time.

(6) The defense never received copies of Ivory's statement regarding the skin. Therefore, relying on the representation in the lab reports the defense believed that what had appeared to be skin to the naked eye of Dr. Gammel was not actually skin.

(7) At no time during my representation of Dr. MacDonald did I or any other member of the defense team discover any reference to Agent Toledo's having photographed a letter "G" at Helena Stoeckley's apartment. Although the defense made repeated requests for photographic evidence, the defense did not have access to any photographs of the letter "G" painted on Helena Stoeckley's wall, nor was the defense ever aware that the government had discovered a letter "G" painted in Helena Stoeckley's apartment and compared it with the letter "G" written in blood at the crime scene. Rather, the defense was under the impression from Medlin's testimony at the Article 32 hearing that "the photographs when they were printed were blurred." Medlin had then indicated during his testimony that he had made more pictures to replace those that were "blurred" and that nine fingerprints and three palm prints had been lost in those new photographs.

(9) As early as the Article 32 hearing, Dennis Eisman, one of my co-counsel, requested that the Army provide investigating officers, counsel for the defense and the government with a set of the photographs so that they could conduct their own independent investigation regarding the identity of persons to whom those fingerprints belonged. Captain Somers replied:

"The negatives in this case, particularly the ones with which any difficulty might have been had, I can represent are undergoing further treatment, and so they are not presently available. The prosecution objects to complying with this request."

(Article 32 Hearing Transcript, page 536.)

(10) As late as 1979 the defense requested of the FBI fingerprint lab photos of all latent lifts or prints of photos taken of developed fingers from the crime scene, including those initially or subsequently evaluated as being of sufficient clarity for comparison purposes.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this 27 day of August, 1984 at Phoenix, Arizona.


Michael J. Malley

Subscribed and sworn to before me this 27th day of August, 1984.

Robin Nelson

LETTER FROM 1 LT MICHAEL MALLEY TO LIEUTENANT GENERAL JOHN J. TOLSON

1 Lt Michael J. Malley
465-60-1916
HHC, 159th Engineer Group
APO San Fernando, California

Subject: Request for reinvestigation

Lieutenant General John J. Tolson
Commanding General
XV111 Airborne Corps and Fort Bragg
Fort Bragg, North Carolina 28307

(1) The undersigned was individual military counsel to Captain Jeffrey R. MacDonald, 6th Special Forces Group (Abn), 1st Special Forces, Fort Bragg, North Carolina. In that capacity, the undersigned has had occasion to participate in the preparation of CPT MacDonald's defense in an Article 32 Transcripts (UCMJ) investigation conducted to see if CPT MacDonald should stand trial for the killings of his wife and two children. Upon recommendation of Colonel Warren V. Rock, Investigating Officer, the charges against CPT MacDonald were dismissed without trial.

(2) The undersigned requests that an officer be appointed to investigate the conduct of three CID agents in the MacDonald case. In addition, the undersigned requests that two prosecuting attorneys' conduct during the course of the Article 32 Hearing be investigated

Listed below, briefly, are instances of what I consider to be gross negligence, possibly in violation of Article 92 (c), UCMJ, on the part of the CID investigators. Also listed are instances of possible perjured testimony on the part of some of these agents, a violation of Article 131 (UCMJ). Because the government prosecutors were in charge of the government's case before the hearing officer, it is suggested that their conduct be investigated to see if they were aware of the possible perjury. If so, they would be responsible for suborning of perjury, a violation of Article 131. In addition, other conduct on the part of both prosecutors and CID agents may constitute conduct unbecoming to officers and or conduct which is prejudicial to the good order and discipline of Armed Forces, violations of Article 133 and 134 (UCMJ). The specific individuals whose conduct should be investigated are: CPT Clifford L. Somers, Office of the Staff Judge Advocate, XV111 Airborne Corps; CPT William deF. Thompson, Office of the Staff Judge Advocate, XV111 Airborne Corps; CW3 Franz Grebner, CID Detachment, Fort Bragg, North Carolina; WO Robert Shaw, CID, Fort Gordon, Georgia (formerly at the CID Detachment, Fort Bragg); and Specialist Seven William Ivory, CID Detachment, Fort Bragg, North Carolina.

(3) The following instances of investigatorial or prosecutorial misconduct
serve as basis of this request. However, I would like to point out that the entire CID investigation seems to have been conducted in such a grossly incompetent fashion, that the officer appointed to study my charges should not necessarily confine himself to the specific instances I mention. These should serve merely as points of reference.

(a) CID investigators did not take ordinary investigatory steps to determine how the crime scene had been changed prior to the time the investigators arrived and began to take photographs. MP's on the scene could have supplied much information, yet they were never interviewed in depth. This led the investigators recklessly and erroneous to place undue weight on the position of certain items of clothing, threads, fibers and a white flower pot and the presence or absence of mud, standing water and debris in the MacDonald household. The CID's April 6, 1970 interrogation of CPT MacDonald should be consulted for the CID confused state of mind regarding this evidence and compared with the transcripts of the Article 32 Hearing regarding this same evidence.

(b) CID investigators negligently failed to follow AR 195-10, paragraphs 3 -17 and 4-17, by failing to submit numerous identifiable finger and palm prints to the FBI and by failing to inventory the crime scene. This lead to disastrously erroneous conclusions by the CID, conclusions negligently represented as true to the SJA, XV111 Airborne Corps and Colonel Francis B. Kane, who signed charges against CPT MacDonald. These conclusions were that nothing was missing from the MacDonald house and that unidentified persons could not have been in the house. Both these conclusions are clearly unsupported. In fact it appears that at least one man's wallet was stolen from the MacDonald house while CID agents were present. It also appears that some women's jewelry was stolen and that numerous fingerprints in the MacDonald house are still unidentified.

(c) CID investigators negligently failed to take account of the fact they had not preserved CPT MacDonald's pajama bottoms; they thus recklessly assumed that the presence of certain fibers and threads (which in all likelihood had been disturbed anyway by MP's, CPT MacDonald himself, the doctor who pronounced CPT MacDonald's family dead and the investigators themselves) must be attributable solely to CPT MacDonald's pajama top. From this assumption, a fanciful and totally unsupportable thesis was manufactured and presented as conclusively proven to the SJA and Colonel Kane, who chose to believe this reckless fabrication. Again, the April 6, 1970 interview of CPT MacDonald should be compared to the transcript of the Article 32 Hearing.

(d) CID investigators recklessly assumed that positive identification had been made of some of the weapons thought to have been used in the assault on CPT MacDonald and his family. This was false and could have been easily verified.

(e) CID investigators recklessly failed to interview CPT MacDonald himself before he was a suspect, under conditions in which he could have supplied a coherent story and pointed out whatever uncertainties he himself was aware of. Yet, these same investigators drew wildly fanciful conclusions from fragments of interviews with CPT MacDonald held by agents of the FBI while CPT MacDonald was under sedation and emotionally upset. Again, the April 6, 1970, interview should be consulted. It is possible that the reason the CID did not interview CPT MacDonald was that they considered him a suspect from the beginning, however, if this is true, then Colonel Kriwanek, then XV111 Airborne Corps Provost Marshal, lied when he denied that CPT MacDonald was a suspect.

(f) CID investigators recklessly failed to determine the seriousness of CPT MacDonald wounds and recklessly failed to determine the impossibility of predicting before hand the consequences of self-inflecting such wounds. Instead, the investigators merely assumed the wounds were not serious, which is grossly in error. The one attempt to discover the hypothetical possibility of self-inflicting CPT MacDonald's wounds, a coroner from Baltimore was retained, as a consultant was ludicrously inept. The data given to the coroner (who had not seen a living patient in over 20 years) was faulty and as he testified, he feels he was misled.

(g) CID Investigators recklessly conducted interviews into CPT MacDonald's background and the background of his family, using at times techniques, which may be termed character assassination and which in all likelihood, distorted whatever value the information gathered had. Further, the CID investigators never carefully evaluated the results of their own investigation into CPT MacDonald's background and family, but merely assumed their own conclusions. Most people interviewed stated that CPT MacDonald appeared to be a normal person, who loved his family very much and who never exhibited any suspicious character traits. Yet, apparently the CID completely ignored the relevance of this.

(h) CID investigators never discovered any motive for the crime yet they recklessly assumed this fact was insignificant. It appears that the motive ultimately advanced by the prosecutors at the very end of the hearing was fabricated by the prosecutors themselves, since the CID investigation concentrated on finding evidence of drug abuse or marital discord in the MacDonald family, neither of which existed.

(i) CID investigators recklessly placed on CPT MacDonald the onus of explaining any facts which the CID itself could not explain and concluded because CPT MacDonald's inability to explain some things, he must be guilty of the crime.

(j) CID investigators recklessly represented to SJA and to Colonel Francis B. Kane, that it had thoroughly investigated this case, which was patently untrue. Further, the CID several times performed a ludicrous experiment in tipping over a coffee table in the living room of the MacDonald home. The purpose of this experiment was to demonstrate to Colonel Daniel Lennon, the SJA (who to this day seems to believe the CID's distorted version of what happened) and to Colonel Kane that the living room scene had been staged. When Colonel Rock did this same experiment under proper conditions (taking account of all evidence present in the CID's own photographs of the crime scene), it was apparent that the living room scene was natural and not staged. See the transcript of the Article 32 Hearing.

(k) The prosecutors (it is not clear which one) told at least one government witness, Specialist Four Kenneth Mica, a military policeman, not to volunteer information to the defense which was clearly relevant namely, that Mica had seen a girl matching the description of one of the assailants standing on a corner near the MacDonald house shortly after the crime occurred.

(l) The prosecutors, in conjunction with the CID agents, failed to produce CID laboratory reports concerning wax samples taken from the MacDonald house although Colonel Rock repeatedly asked for these reports. When Colonel Rock sought an explanation, Mr. Grebner said he had lost the reports. It is suggested that possible perjury and suborning of perjury, is involved here.

(m) The prosecutors, in conjunction with the CID, delayed submitting into evidence the results of certain laboratory testing of hair samples forcibly taken from CPT MacDonald for comparison with certain hairs allegedly found at the crime scene. When the laboratory showed that the hair samples did not match, a revised laboratory report was written to cast doubt on the exculpatory nature of the first report. This appears to be conduct, which was clearly designed to prejudice the defense of CPT MacDonald, when it turned out that the government's hope for laboratory results would not be forthcoming. In addition, Mr. Grebner said that the reason for the long delay in submitting the reports to the Hearing Officer, again, loss of the reports. This is difficult to believe. It is again suggested that possible perjury and suborning of perjury may be involved.

(n) During the course of the defense's case, the name of a certain female resident of Fayetteville, North Carolina was supplied by a defense witness and a very strong possibility that this person may have been involved in the MacDonald family murders. Subsequently, at the instigation of the government prosecutors (who alone could have been aware of the girl's identity, because of the close nature of the hearing) specialist Ivory interviewed this girl whose identity was known all along, but never revealed to the defense either by the CID or prosecutors. Ivory's testimony stated that not only was the story about this girl, told by the defense's witness, true, but that the CID dismissed this story as not fitting their theory of the case and so the CID chose not to pursue this story. Further, it became known through Ivory's own testimony that this girl was a drug pusher and informer, who were being protected by the Fayetteville police and by the CID. It is suggested that this information was so clearly exculpatory that active misconduct on the part of the CID and the prosecutors, who apparently knew all along of the identify of this girl and her possible implication in the crime, can be inferred in the concealing of this information from the defense. Moreover when Ivory interviewed this girl a second time at the instigation of Somers and Thompson, the purpose seemed to be solely to discredit the importance of her and not to pursue all of the information which she seems to be capable of supplying. It is suggested that the conduct of Somers, Thompson and Ivory indicates that their only purpose in again interviewing the girl, after the defense stumbled on to her, was to cover the government's misconduct in not revealing this information sooner and pursuing the matter further. It is suggested that not only might this be perjury, but it also might be conduct clearly prejudicial to good order and discipline and a clear obstruction of justice. By the end of the hearing, when these incidents took place, it was obvious that the prosecutors and the CID had only one goal in mind, to bring CPT MacDonald to trial at all costs, regardless of the evidence that might have been suppressed or distorted. It is suggested that this clearly oversteps the bounds of vigorous representation the government may expect of its agents.

(4) Request that Thompson, Somers, Grebner, Shaw and Ivory be suspended from all further duties pending the outcome of this investigation, for the good of the service.

(5) Request that the undersigned, as well as all persons to whom official informational copies of this letter have been furnished, be kept informed of the progress of the investigation and the results.

(6) It is suggested that the sort of gross incompetence and misconduct alleged, infringing on the rights and lives of other people, cannot be allowed to happen again. If the law is to be humane, the people who enforce it must be responsible for their decency and humanity or lack of it. Otherwise, law is only fear, and we all must be either bullies or cowards.

Michael J. Malley
1LT, ADA.

CF:
Honorable Stanley R. Resor, Secretary of the Army
MG L.B. Ramsey
MG Kenneth J. Hodson
BG Henry E. Emerson
Office of the Secretary, DA, ATTN: Office of the General Counsel
Colonel Francis B. Kane
HQ, XV111 Abn Corps, ATTN: SJA
HQ, XV111Abn Corps, ATTN: Provost Marshal CO, Third MP Gp (C1)
Mr. Bernard L. Segal, Esquire
Dr. Jeffrey R. MacDonald
CPT James F. Douthat
CPT Clifford L. Somers
CPT William deF. Thompson
CW3 Franz Grebner
WO Robert B. Shaw
Specialist Steven William Ivory
 

 

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