November 4, 2008: Judge Fox's Orders (1) Government's Motion to Strike Exhibits is allowed (2) Defense Motion to add Predicate, Expand the Record with Itemized Evidence, To Supplement Itemized Evidence, and Motion for Leave to File Successive § 2255 are all Denied
Reading this motion was sure joy and especially the strong words Judge Fox wrote. Judge Fox's decision was a long time coming, but well worth the wait. He is a very meticulous man, much like Judge Dupree, he studies every detail. He is attuned to the antics of MacDonald and his defense team and let it be known when he wrote, "MacDonald and his defense team have made a career of pursuing every imaginable avenue and theory of post-conviction relief."
But Fox's decision means that MacDonald's conviction continue to stand.
Late Tuesday afternoon Brian received electronic notification from the Clerk's Office in the EDNC that Judge Fox had denied MacDonald's pending 2255 Motion based upon alleged prosecutorial misconduct, his motion to expand the record, and denied his motion to add the results of DNA testing as an additional predicate to his PFA authorized 2255 motion for lack of jurisdiction. The court also granted the government's motion to strike several affidavits containing the inculpatory statements of deceased hippie Greg Mitchell as untimely filed.
For the purposes of analysis the court accepted the allegations in retired DUSM Jimmy Britt as true, but determined that even if true, MacDonald had failed to the gatekeeping standards for a successive 2255 motions. In a footnote the court noted that: "Sadly, Jim Britt died only days before this order was finalized."
I have no doubt that MacDonald will appeal Judge Fox's rulings, and will now attempt to get a PFA from the Fourth Circuit to pursue his claim of actual innocence based upon the results of the DNA testing.
So many people have worked hard over the years to see that justice continues to be served in this case. They have have always been there to speak for Colette, Kimberley and Kristen. And as we will never forget the victims, we will never forget the prosecutors, CID investigators and FBI investigators.
As Brian told me, "I have always considered it a privilege to have been fortunate to be able to serve in this case. I owe it all to fate and Peter. I wish he, the Kassabs, and of course Victor Woerheide, my role model were alive to see this."
Somehow I am sure Freddy and Mildred, along with all the others who have passed on do know and are smiling.