December 21, 1984: Motion by Jeffrey MacDonald For
Reconsideration Of Defendant's Motion To Recuse
Myrna K. Greenberg
A Professional Corporation
1137 Second Street, Suite 106
Santa Monica, California 90403
Wade M. Smith
Tharrington, Smith & Hargrove
300 BB&T Building
Raleigh, North Carolina 27602
Attorneys for Defendant
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
United States of America, Plaintiff
Motion For Reconsideration Of Defendant's
Motion To Recuse
Jeffrey R MacDonald, Defendant
Defendant respectfully requests the Court to reconsider its ruling of October 1, 1984 denying the defendant's recusal motion. The Defendant's motion was based in large upon information as to the extent of the involvement of former Assistant United States Attorney Jimmie C. Proctor in the case. That information had been provided by Mr. Proctor to a defense investigator.
In part, the Court's earlier order was premised upon the finding that Mr. Proctor's "involvement would not be sufficient grounds for recusal" (pg. 10 of October 1, 1984 Order ) and the Court's finding "that Proctor's role in the case was limited to representing Agent Caverly at the Article 32 hearing and assisting FBI and CID investigators in the case." (pg. 11 of October 1, 1984 Order).
This motion for reconsideration is based upon recently discovered information that Mr. Proctor had far more extensive involvement in the case than he has previously represented
Mr. Proctor recently made a statement to a reporter for the Fuquay-Varina, North Carolina newspaper "The Independent" which was published in November 28, 1984 edition of "The Independent." A true and correct copy of the article reporting Mr. Proctor's interview is attached hereto and offered in support of this motion pursuant to Federal Rule of Evidence 902 (6).
Mr. Proctor's recent statement discloses that his office together with the FBI and CID "continued to follow up every lead." Mr. Proctor states that he talked to Helena Stoeckley and had her take a polygraph examination. In addition, Mr. Proctor states that he went "to Washington every two to three weeks, taking new evidence. He talked with Victor Woerheide, Justice Department prosecutor, and convinced him that he had a case against MacDonald." Finally, Mr. Proctor states that in an effort to obtain approval to prosecute the case, "begged, pleaded, even threatened to resign."
This motion for reconsideration is made in order to offer the Court the opportunity to consider this new evidence of Mr. Proctor's involvement in the case and advocacy of Dr. MacDonald's prosecution.
Dated: December 21, 1984
Myrna K. Greenberg
A Professional Corporation
Hand signed by Wade M. Smith
Attorneys for Defendant
Article from the newspaper THE INDEPENDENT, Wednesday, November 28, 1984
FUQUARY-VARNIA, NORTH CAROLINA 27526
PROCTER SAYS MOVIE CONFIRMS HIS MEMORIES OF MACDONALD CASE.
By Shirley Haynes
Captain Jeffrey MacDonald was prime suspect in the murders of his wife and two daughters within hours after their bodies were found in their Fort Bragg home in February, 1970, according to Jim Proctor was Assistant U.S. Attorney in charge of the Fayetteville division at the time.
"It should have been a very simple case," Proctor said in a telephone interview from his home in Pollockville Sunday.
He suggested that from examination of the crime scene "Any gum shoe cop would have figured he did it."
Asked for comment this week on the movie "Fatal Vision", based on the MacDonald murder case, Proctor, a Fuquay-Varina native, said he thought the movie was "well done….and very accurate."
He suggested to someone not familiar with the case, it might not have been clear that 10 years elapsed between the time of the murders and the trial. But otherwise he had no criticism of the movie which was seen on television in this area a week ago.
While he says he felt enough evidence was immediately available to have convicted MacDonald soon after the crimes occurred, Proctor said a combination of factors foiled the efforts of those who had investigated the case.
For example, Proctor said the Army Colonel who conducted the Article 32 hearing (the military equivalent of a preliminary hearing in civilian courts) was not himself a lawyer.
And he was faced by the flamboyant Philadelphia defense lawyer Bernie Segal, a public press sympathetic to MacDonald and critical of the Army's handling of the case, as well as pressure from MacDonald's father-in-law, Freddie Kassab, harassing the military and the prosecutors for abusing his son-in-law.
(Procter has since written a paper contending that no officer who does not hold a legal degree should be allowed to conduct this type of hearing.)
Proctor sees as a great irony the fact that, but for Kassab's pressure to have charges against his son-in-law dropped, the Army might well have tried MacDonald back in 1970.
Then it was Kassab in years to come who was to do a complete turnaround and apply pressure on the U.S. Attorney General's office and even Congressmen to pursue the case and charge MacDonald with the three murders.
Proctor was deeply involved in the investigation of MacDonald case from the beginning. As assistant Attorney in the eastern division of North Carolina and chief of the criminal division, he personally supervised the Fayetteville division.
On the day the three murders occurred at Fort Bragg, he was in the Virgin Islands assisting in the trial of a murder case. As soon as he returned he was briefed on the MacDonald case by FBI Agent Bob Caverly, who, on the basis of MacDonald's initial statement to him at the hospital on the night of the murders, named MacDonald as a suspect.
On the basis of the briefings by Caverly and others involved in the initial investigation Proctor said, "We all agreed MacDonald was the one."
Proctor explained that, theoretically, the U.S. Court and the military have joint jurisdiction in cases involving the military.
But he said in a "memorandum of understanding" then U.S. District Court Judge Algernon Butler had agreed to allow the military to try any cases which it could try – that is, cases which occurred on the military post and involved military personnel.
So the Army held the initial hearing for MacDonald.
Proctor said the defense attorneys moved on the theory that the best defense is a good defense. "They completely hoodwinked the press," he said. "…until the hearing was about half over and the press began to see through it." He added, "They tried to get the public and the press not to see the forest for the trees."
Proctor said there were false leads put out. And he said his office, the FBI and the CID continued to follow up every lead.
Proctor talked to Helena Stoeckley, once considered a possible suspect. He had her take a polygraph test which she passed successfully. He said the investigators were also satisfied that she had a credible alibi. They talked to people who knew where she was that night. (MacDonald had said the murders were committed by a band of hippies and Ms. Stoeckley was questioned because of her hippy lifestyle.)
Proctor said the defense attorneys did a superb job of public relations of staging scenes as one intended to indicate MacDonald was being mistreated by MP's, and then calling the press.
"They were saying the tall, short, skinny, fat guy did it," Proctor said. And they apparently had the public taking it all in for a long time, in his opinion
On the basis of his presence at some of the Article 32 hearing and his reading of the transcript Proctor concluded that MacDonald "had nothing but ice water running through his veins." He said the Green Beret captain was almost flippant during parts of the hearing.
At the close of the military's Article 32 hearing, the presiding officer found that there was not enough evidence to support a court martial for MacDonald. The doctor was freed.
But Proctor office and the investigating agencies working with him continued their investigation. Agents followed leads far as Vietnam, Korea and Hawaii. Proctor flew to Washington to outline the case for the Attorney General. Proctor also read the 2,000 page transcript of the Article 32 hearing (some of which he had sat in on since the law required a U.S. attorney to be present when an FBI officer testifies.)
For a time Proctor said, he was going to Washington every two or three weeks, taking evidence. He talked to Victor Woerheide, Justice Department prosecutor, and convinced him that he had a case against MacDonald.
But again, a variety of circumstances caused Woerheide to recommend against pushing the case forward.
At the time, Proctor explained, the death penalty was prescribed for all capital federal crimes. This meant that if MacDonald went to trial, the U.S. Attorney would have to seek the death penalty.
First there would be the problem of seating a jury all of whom believed in capital punishment. Then the prosecution would have the task of proving MacDonald guilty on the basis of circumstantial evidence.
Meanwhile there had been a change in the administration. A backlog of cases was jamming the federal court here. If MacDonald were tried it would probably mean calling a special session of court and probably bringing in a judge from another state.
Proctor said Woerheide kept saying he knew MacDonald was guilty but he continued to point out the problem with bring the case to trial.
"We begged, pleaded, even threatened to resign," Proctor recalls, adding a chuck, "I was young then."
The case did not go to trial then and Proctor did leave the U.S. Attorney's office, but his departure wasn't because of the case, but because his father-in-law at that time, Franklin Dupree had been named a U.S. judge in the eastern district and it would have been inappropriate for the judge's son-in-law to try cases before him.
So Proctor went into private practice for a year then went to Washington with the CIA for a year and a half. While he was in Washington he remembers being called by the CID to view a four-hour film that had been put together covering the evidence collected in the MacDonald case.
But Proctor declined to view the film. He said at the time he was fed up with the case.
It was still several years later that the Supreme Court ruled in the case of Ferman versus Georgia, that all death penalty status were unconstitutional because of their wording. This change which meant that a U.S. Attorney could try a murder case without the question of the death penalty being raised, that another look was taken at the MacDonald case.
By that time the backlog of cases in court was down, too, Proctor recalls. And Kassab had kept up steady pressure on the Attorney General's office to try the case.
Proctor was no longer involved by the time a grand jury returned a true bill of indictment charging MacDonald with the three murders.
And he was not involved when MacDonald was finally tried and convicted by a jury in Eastern District Federal Court in Raleigh in 1979.
But he watched developments with much more than a causal interest.
The jury was absolutely accurate in finding MacDonald guilty of second degree for the first two deaths and first degree in the third, in Proctor's opinion.
He remembers talking to a 16-year-old-girl who was sleeping in a room above the MacDonald apartment on the night of the murders. He said she told of having heard MacDonald and his wife shouting at each other in anger in the bedroom of their home and later sobbing which she thought would have come from the living room. He said the girl told investigators she though at first she had been dreaming but realized the next day the sounds she had heard were real.
The theory of the prosecution and Proctor's theory is that MacDonald killed his wife and older child in anger, then killed the younger child as a part of the development of an alibi.
Proctor speculates that the reason there was little disarray in the living room where MacDonald claimed he had struggled with the intruders, was because he was afraid to make much noise in staging the scene for fear of waking neighbors.
Proctor is highly complimentary of the work of the CID and the FBI in the case, although MacDonald's attorneys contended the investigation was bungled by the Army.
He called the CID agents "the unsung heroes" of the case. "They did a beautiful job," he said. He said a special team of CID agents were flown in from Fort Gordon the morning after the murders. He said FBI agents were highly complimentary of their work.
As for the Army disturbing the crime scene as it was accused of doing, Proctor said, "That was the most beautifully preserved crime scene in the world."
He said an MP did set up an overturned flower pot and an ambulance driver picked up a pocketbook – two incidents which have been described repeatedly in hearing and the trial – but Proctor said nothing else was touched.
While Proctor's direct personal involvement in the MacDonald case ended several years ago, defense attorneys haven't forgotten him.
Proctor's name is mentioned more than once in motions filed recently by MacDonald's attorneys as they seek to convince the court they have enough new evidence to warrant a new trial for their client.