(The following proceedings were held in the presence of the jury and alternates.)
THE COURT: Good morning, ladies and gentlemen. Are you going to sum it up today?
MR. BLACKBURN: Yes, sir; if we may.
THE COURT: Very well. Do the parties desire to argue this case to the jury?
MR. MURTAGH: Yes, Your Honor.
THE COURT: If so, the jury is now with the Government for its opening argument.
O P E N I N G A R G U M E N T 9:01 a.m.
MR. MURTAGH: Good morning, ladies and gentlemen, Your Honor, and counsel. I would like to thank all of you personally for your patience and attention throughout this long and very well-fought trial.
I think you have all spent your summer performing your civic duty in what was far from a pleasant task. I think that both the Government and the Defense are in your debt for that.
Now, this case is a tragedy for both sides no matter what happens. If the Defendant is convicted as we hope, or if he is acquitted, society loses either way. If he is convicted, society loses an excellent doctor. We don't contest that. He is not on trial for his medical competency. If he is acquitted, we submit that society loses in that someone whom we be-lieve we have proven beyond a reasonable doubt committed an atrocious crime goes free.
So, there are no winners or losers in this case. It just doesn't come down that way.
Now, what any counsel says, certainly the Government counsel but also the Defense, in argument is not evidence. As His Honor told you, in fact, during jury selection, that the evi-dence comes from the witness stand and not from counsel. So what I am saying is what I submit the evidence shows, and if your recollection of the witnesses' testimony is different from mine, by all means, your recollection controls.
Now, Mr. Smith started out in his opening statement, I think, quite eloquently. He talked about duty, and it was a moving poem that he recited. He talked about the duty of the pro-secution to prove this case beyond a reasonable doubt. He talked also about the duty of the Court as the giver of the law and the duty of the jury, perhaps the most difficult duty of all, as the finders of the facts and the final arbiter of credibility.
Mr. Smith recited a poem, which, if I may paraphrase, and which went something to the effect of, "I dreamed that life was beauty, and I awoke and found that life was duty." I wish that we, as prosecutors, could have discharged our duty to Colette, Kimberly, and Kristen MacDonald, whom I must say we stand here representing, by presenting nothing but pictures of a perfect family life, of a perfect marriage, of a perfect husband and father, but that was not our duty.
Our duty was to take you through a tour of a slaughterhouse--not a slaughterhouse for the Defendant, certainly, but a slaughterhouse for Colette, Kimberly, and Kristen. It was our duty to show you many pieces of physical evidence--much of it grotesque--and to put these bits and pieces of the jigsaw puzzle together.
Obviously, we couldn't bring in the eyewitnesses to testify because, we submit, the eye-witnesses were murdered; but as Mr. Blackburn has told you in his opening statement, things, objects, blood stains, et cetera, don't lie. They tell the story. It is not an emotional story, but it is a logical story.
The Defendant tried, we submit, to obliterate or to account for or to disassociate himself with all of the physical or trace evidence connecting him to the commission of the crime. While this case is anything but simple to try or to judge, for that matter, it does boil down to one simple concept. In fact, it is a concept for which juries were invented and for which they have evolved: that is to determine credibility--who is telling the truth and who is lying.
Is the story told by the Defendant and his injuries, or the lack thereof, credible? Does it ring true? Does it in the light of all the circumstances make you say, "I believe him"? Or is the story told by the crime scene, the physical evidence, the blood stains, the pajama top, the sheet--does it leave you a little uneasy, and does it on a further reflection make you say to yourself, "No way. Impossible. Incredible. I don't believe it." Not to put too fine a point on it, "Has the Defendant lied about the alleged struggle with the intruders?" There were ac-tually, we submit, two struggles--one between the Defendant and Colette which started in the master bedroom and moved to Kristen's room. That struggle ended with Colette uncon-scious, we submit, in Kristen's bedroom.
The other struggle started almost immediately and continues to this day in this Courtroom.
That is, to make Jeffrey MacDonald's story fit the physical evidence. It is his effort, we con-tend, to provide an explanation consistent with his innocence for the presence of his wife's blood type--we submit that it is his wife's blood on his pajama top--and to account for his own injuries, or lack thereof, and make them consistent with the injuries inflicted on the vic-tims.
Milton once said, and if I may paraphrase, "Truth and falsity shall grapple in the Courtroom and truth shall prevail." Well, that is the poet's view and not a prosecutor's. Let me share with you if I may a prosecutor's view of that verse. Truth and falsity have indeed grappled in this Courtroom at least daily, and truth shall prevail, maybe, but only if the jury decides the issues on the basis of the evidence. I submit again that the issue is the credibility of the De-fendant's story and not on the basis of emotion.
He is not on trial for being a bad doctor. Truth shall prevail, but only if the jury requires the Government to prove each and every element of the offense beyond a reasonable doubt but not--not--beyond any doubt whatsoever, because as His Honor, Judge Dupree, instruct-ed you during jury selection, very few things are capable of proof to an absolute certainty. Again, truth shall prevail only if the jury requires that the Government prove that the Defen-dant committed a crime beyond a reasonable doubt; however, the Government is not required to prove beyond a reasonable doubt the innocence of everyone that was within driving dis-tance of Fort Bragg on the night of February 16th and 17th. That is not our purpose.
Mr. Segal has sought, and I might add, very capably, to try everybody but the Defendant.
Helena Stoeckley is not on trial. The girl on the corner of Honeycutt and North Lucas is not on trial. The people in Mr. Milne's vision, or he said analogy, or whatever it really was, are not on trial. The CID and the FBI agents are not on trial, nor is the Army, the Special Forces, or the Justice Department on trial, nor are the Kassabs on trial. Truth shall prevail, we sub-mit, but only if the jury, on conformity with its oath, makes no distinction as the law requires between circumstantial and direct evidence.
This is a circumstantial evidence case. We told you that. Mr. Blackburn told you that in his opening statement. We do not shrink from that statement. It is particularly important to keep in sight in this case because the Defense has done its utmost, I submit, to confuse the issues and to play upon your emotions.
The Government's case, stripped to the essentials, consists of the crime, the physical evi-dence, the Defendant's story voluntarily told, the conflict between that story and the physi-cal evidence, from which we submit that it was a fabrication of the evidence, and from that we infer and would ask you to find his guilt.
The Defense, although the law imposes no duty on a Defendant to present any evidence, the Defendant has chosen to relate his version of the events. He has also chosen, I might add, to ignore or to try and explain all the physical evidence or to discredit the investigators or the experts and also to offer massive amounts of character testimony. But character tes-timony is really one-sided in this case, because the only character witness, we submit, who could have shown the other side of the crime was Colette, and Colette was murdered.
Besides, we contend that the physical evidence connects the Defendant as the only pos-sible criminal actor; it is immaterial and irrelevant and unnecessary to require that the Gov-ernment prove by evidence of bad character that he was the type of individual who could have committed the crime.
For example, the footprint. You have heard the testimony of Mr. Medlin, who identified the Defendant's footprint exiting from Kristen's bedroom. You have also heard the Defendant admit on the witness stand under oath that that was probably his footprint.
Character testimony doesn't add anything to that. If you find, as we would argue, that that footprint could only have been made during the commission of the crime between the time when Colette was in the north bedroom, as we contend the physical evidence shows, and the time she wound up on the floor of the master bedroom, it doesn't matter. We are not required to prove the Defendant was the type of person who would have left a footprint. The footprint--the evidence--speaks for itself.
The crime scene is the logical place to start in summing up this evidence, but let me make a few observations first about crime scenes in general and crime scenes in particular. Just as there is no such thing as a perfect crime, there is certainly no such thing as a perfect crime scene, and this crime scene was not perfect. This is particularly true where the crime scene is perceived by the initial discoverers--the MPs--as also the scene of a medical emergency.
Now, you may recall the testimony of the Defense expert, Professor Osterburg, who con-ceded on cross-examination that efforts to preserve life supercede efforts to preserve evi-dence. Now, added to this basic rule of police procedure--one which I might submit was well known to mystery buffs such as the Defendant--the ability of the perpetrator by means of his apparent victim status, his military rank, his status as a doctor, to direct the MPs and the medics to move things, and most of all, to get him out of the crime scene fast before any-body really knew what was happening, you are going to have problems with the crime scene.
I submit to you that the problems with the crime scene are generated and stem from the De-fendant's efforts, at the initial onset of the MPs coming on, to add confusion, to make the MPs react as was their duty, to preserve life--certainly, his life--but I ask you with the aid of hindsight not to hold the MPs and the CID agents to a standard of perfection because just as there is no such thing--excuse me--because what was lost does not change what was found. Things were lost, but things were also found. What was done does not change what was not done.
Things that were identified such as the Defendant's footprint in Kristen's room--exiting Kristen's room--is not affected by what remains unidentified. What Mr. Segal has tried to do
--and it was, I think, his duty--is to get the jury's attention away from the physical evidence which we contend connects the Defendant and no one else to the murders--such as his pa-jama top. He did this by dwelling on irrelevancies such as the flower pot and the feather.
What they have to do with this crime, I submit, is irrelevant.
I trust--no, I believe--that you will not let the Defendant go free if despite your belief that the physical evidence identified him as the perpetrator beyond a reasonable doubt be-cause Bill Ivory did not send the feather to the Smithsonian to find out what kind of bird it came from or that he failed to interview the cat or because the medic moved the flower pot
--another observation if I may.
Just as the Defendant is not entitled to a perfect trial--only a fair trial--he isn't entitled to a perfect crime scene either. The Government's case does not rise or fall on whether the crime scene was perfect. The Government's case rises and falls on whether the physical evi-dence connects the Defendant beyond a reasonable doubt to the commission of this crime.
Besides, what crime scene are we really talking about? We contend that there are really three crime scenes. The first crime scene, I submit, is the one which resulted from the in-fliction of blunt trauma injuries with the club which you have seen on Colette and Kimberly.
You will recall that there was evidence that Kimberly's blood type was found--well, it was found on the rug. A piece of rug was cut out, and I believe, shown to you, that was in the master bedroom. That is the first crime scene, and it started in the master bedroom and it moved again to the north bedroom where Colette was again assaulted. That is the first crime scene.
That crime scene consisting of blood stains on the ceiling, walls, is not affected and can-not be changed by the MPs or the medical personnel. You can't change the fact that Co-lette's blood type--I submit, Colette's blood--was found on the wall above Kristen's bed.
The second crime scene consisting of the evidence which we submit resulted from a car-rying of Colette from Kristen's room by the Defendant to the master bedroom, and further, the infliction of stab wounds on her by the Defendant in the master bedroom, the removal of Kimberly to the south bedroom from the master bedroom by the Defendant, the stabbing of Kristen in the north bedroom, and the self-infliction by the Defendant of his pneumothorax in the bedroom. There were efforts further by the Defendant to make the crime scene appear to be the work of multiple "Mansonesque" intruders.
The rubber gloves--we have the stabbing through the pajama top which we contend serves two functions. One, he had to have some puncture holes in it, we would argue, to be consistent with his own story. Two, he had already, we submit, placed it on Colette's body because it had become soaked with Colette's blood and the only explanation consistent with his innocence would be the one that he came up with, "I put it on top of her." He then stabbed her through his pajama top, we submit.
Further, we would argue that efforts to make it look like the work of intruders were the use of multiple weapons--the ice pick, paring knife, the club. We don't contend that he used or had three or more of these weapons simultaneously, but there is no reason why, we would argue, that he could not have used them at separate times.
We also would argue that the scene in the living room was staged and that the weapons were disposed of out the back door.
Now, the third crime scene is the scene from the time Sergeant Tevere--you may recall him--a somewhat burly MP who came through the back door into the utility room--that crime scene starts from Tevere's entry until the removal of the victims' bodies to the morgue.
Now, things got moved during that crime scene. MacDonald was removed to the hospital.
The phone was picked up by Tevere. You will also recall that the Defendant had picked up both phones prior to Tevere's arrival; so, it really doesn't make that much difference, we would contend.
Now, the flower pot gets moved, but I still would argue that the flower pot has no rele-vancy to the crime scene. Let's not forget the feather either. Also, you have MacDonald's wallet which was stolen by a medic. Remember, Officer Mica told you about that.
Now, how does that change the identity of the footprint exiting from Kristen's bedroom in Colette's blood type? It doesn't, we would submit.
Now, Mr. Blackburn will address what the Defendant said and when he said it and what he knew at the time he said it, but let me say that we would contend that everything the De-fendant said ultimately was an attempt to account for physical evidence left during the first and second crime scenes; and in attempting to do so, he tried to account for trace evidence by providing an innocent explanation for his presence or for his touching of the particular ob-ject. "Yes, I was in Kristen's room. Yes, I touched her, but I was giving her mouth-to-mouth resuscitation"--even though he had a punctured lung.
The trouble with this approach is that if you don't know all the physical evidence--and he certainly didn't--at the time you are beginning to account for it, you get trapped or nailed down to a particular sequence of events. And as more and more evidence is analyzed and collated, which can't be done overnight, this permits you less and less room for inventive maneuvering. We submit that is exactly what happened.
Now, since the Defendant had been trained by his own admission in Special Forces to withstand interrogations such as a prisoner-of-war doctor might be subjected to, he knew that if he was going to tell a story, he would have to tell as much of the truth as possible. He would have to tell the sequence as nearly as possible, but the reason why he touched something would, we contend, be fabricated. This, we would argue, is really a cover story within a cover story. Now, since he would have to repeat this time and time again, as I have said he would have to, there is a grain of truth in the sequence of his movements throughout the house.
Of course, he talked voluntarily for years. You can't interrogate this Defendant, or any Defendant for that matter, in a case like this without by the nature of your questions inform-ing him of what your evidence shows or what you think it shows. This is, we would argue, the most difficult type of cover story to penetrate because it contains half-truths and distor-tions of the sequence of events and such. I submit the cover within a cover can only be penetrated by the analysis and collation of bits and pieces to form a picture--a jigsaw puzzle, if you will--and not by character testimony of somebody who was in Nepal at the time the crime happened. We would argue that that is irrelevant.
You don't have to have every piece of the jigsaw puzzle to know what the picture is. I am sure you have all had the experience of trying to put a jigsaw puzzle together when you get down to the end of it and there is a piece or two missing, but you still know what the picture shows. That is basically what this case is about. You have, I submit, sufficient pieces if you will analyze them, and I know that you will make that effort to get the picture--not of what maybe happened or could have happened, but we submit what the evidence shows must have happened. What did happen when Jeffrey MacDonald, the Defendant, first assaulted his wife, Colette, and daughter, Kimberly, with the club in the master bedroom and later stabbed them and Kristen?
I am going to ask you to go back with me now through the crime scene. I know that it is something that all of us would rather never have seen. We don't do this to be insensitive to your natural repulsion at this crime. Anytime any of us looks at these photographs, it shakes us whether we show it or not; but it would be, I submit, a miscarriage of justice if by virtue of the horror depicted and generated in these photographs if the jurors were unable to study the details of the scenes in order to fully comprehend the evidence. I submit that you owe it to the Defendant and you also owe it to the Government.
Now, this is, as I said, a circumstantial evidence case. Circumstantial evidence cases can be divided, broadly speaking, into two types. You have the chain-type of situation which this case is not. The simplest example of that would be man buys a gun, man goes to bank, man leaves fingerprint on teller's window, man shoots teller, the bullet matches up, and you have a logical progression--a single strand, if you will--that connects the Defendant to the crime.
This isn't that type of case. What this case is analogous to is a circle with different bits and pieces of evidence scattered around the circle--the crime scene--and these bits and pieces when collated point in one direction and one direction only. That, we submit, is to the Defendant.
Now, we have shown you many, many charts and the charts are in evidence. If at any time during your jury deliberations you feel it would aid you in understanding the evidence to refer to these charts, you need only ask the Marshal to have them brought in. The purpose of the charts is so that--you will only hear the evidence one time as it comes in--sometimes twice--but generally, you hear it one time. This case should not depend upon memory--you can't remember what type blood was found on Exhibit 312. I submit that you can't. You need the charts, I would argue, to understand and to relate the evidence one piece to another.
You will recall that we spent a day--maybe it was a day and a half--listening to the evi-dence about the blood stains, and we showed you some 13 charts which you listened to very patiently, I might add, as we went through those. I won't go through them with you again.
The blood evidence, we contend, is uncontested. During the testimony, it was shown that the blood was of a certain type and that it was consistent with or was of the same type as one of the victims or the Defendant. I would ask you to find from the evidence that the Type A blood found at the crime scene is Colette's blood, that the Type AB blood found at the crime scene is Kimberly's blood, that the Type B blood is the Defendant's and that the Type O blood is Kristen's blood.
Again, as I said, the case is like a circle and you have to pick some place on the circle to start in tying the pieces together, which, we would argue, relate to the Defendant.
At this time, I think as logical a place as any to start is outside the back of the house.
Now, you recall the testimony of Mr. Shaw, CID agent, who found the ice pick and the Old Hickory knife under the bush. I ask you to look at this photograph and you will notice that the knife appears to be under somewhat of a little twig and also a seed pod or perhaps it is a branch. I would also ask you to recall that the photograph is in a north and south direction--the south side or the corner of the building being here (indicating) and the north end being in that direction (indicating) by the utility room door.
Now, if we can swing this other chart around. You recall the testimony, I am sure, of the chemist that blood on the Hilton bathmat found on the abdomen of Colette MacDonald was of two types--Type A, Colette's type, and Type AB, Kimberly's type. You will also recall the testimony of Mr. Stombaugh who compared--in fact, he took the Old Hickory knife and the ice pick and laid them out on the table here in front of you and showed the configuration of the Old Hickory knife to be consistent with this stain and the configuration of the ice pick with that stain. I would ask you to find from that evidence that the knife--the Old Hickory knife--and the ice pick were wiped off on the Hilton bathmat.
You also recall the testimony of Mr. Shaw who removed the club from this area here (indi-cating) because it was raining, and marked it with tongue depressors. Now, the piece of wood which you have seen several times had two blood types on it--Type A, Colette's type, and Type AB, Kimberly's type. Now, when they got the piece of wood to the laboratory, they removed from the club two purple cotton seam threads or two purple cotton threads which were identified as being identical to those of the seam threads of the Defendant's pajama top found on Colette's body, and numerous rayon fibers identical to those of the multi-colored throw rug which was found by Colette's feet. In fact, you just saw it in that other picture. I will ask you to remember and bear in mind these two purple cotton threads. We will come back to it.
Now, at various times, these photographs were shown to you. The purpose, we would ar-gue, of this display is to tie the club which was found outside the house to the commission of the crime inside the house. You recall Colette's body--the area from which Colette's body was removed--the splinter, Government Exhibit 125, which Dr. Chamberlain tested for blood on it and it was Type A blood. We would argue that it was Colette's blood. The splinter was later fitted back into the club which was found outside the house. We would argue and ask you to find from the evidence that that shows that that club was used on Colette MacDonald in the master bedroom.
Now, you recall you heard a great deal of testimony about threads and yarns that were compared to the pajama top found on Colette's body. I won't go through all of these with you, but I would ask you to remember the testimony of Dr. Thornton, the Defense's expert, who testified to experiments he performed, in which when the seams of cloth such as this--I believe he, rather than using the actual pajama top, sewed pieces together or his wife sewed them together--when they were ripped, I believe he testified that scores of threads would either drop out or be shaken loose. By my count, you find three-score purple cotton seam threads--purple cotton threads--identical to those on the pajama top, in the master bed-room. I would ask you to find from the evidence that the pajama top was torn in the master bedroom and not in the living room. I would also ask you to bear in mind again the two purple cotton threads found on the club outside the house; and also, I would remind you of the pur-ple cotton threads and the hair found in the pile of bedding on the floor.
You also see you have not quite a score, but 14 purple cotton threads from the pajama top in Kimberly's room and one of each of a thread and a yarn in Kristen's bedroom, and again, none on the couch and none on the rug and none on the floor in that area.
Now, this chart is related to the previous chart, but again, we are looking at the collation between the splinters and the threads, and the pattern that I would ask you to find from the evidence is that were you find the splinters from the club, you also find purple cotton threads. From that, I would ask you to find that the wearer of the garment--that is the De-fendant from which the purple cotton threads came--was also the wielder of the club.
I believe that from the previous evidence, you would find that the club was certainly used on at least Colette and Kimberly MacDonald in the crime. I would also ask you to find from the evidence that the club, which was once part of a piece of wood Mr. Browning testified was part of a larger piece of wood and was cut off, and subsequently, the larger piece of wood was later used as a bed slat. Mr. Ivory identified that in Kimberly's bed, and subse-quent to this smaller piece being cut off--the club--it was used along with another piece of wood to support Kimberly's bed--remember, we brought in the footboard and the headboard--when it was being painted. The paint on these objects all matches up and also matches the paint on the Perry-brand surgeon's latex gloves. From this evidence, we would ask you to find that that piece of wood indeed had a utilitarian use in that house.
This chart, I would ask you to take a look at, and perhaps starting in the right-hand side, recall for you or ask you to recall that the blue pajama top found on Colette's body has two blood types on it relating to the victims. That is, you have Type A, Colette's type, of which the testimony shows the vast majority of the blood type--I believe some 20-odd stains--were of Type A. There were massive stains. We would ask you to find from that that it was direct bleeding--contact stains. Kimberly's blood type, there was one stain, which I believe Mrs. Glisson testified that was on the lower front portion of the pajama top, and one stain, Type B--that of the Defendant's--which was on the area of the left arm.
Now, you have the multi-colored throw rug here which has Type A blood on it. I would ask you to recall if you look at Exhibit 322 and Exhibit 116, you would see that the throw rug, in addition to having the fibers with which it is composed, had on it purple cotton seam threads which we would ask you to find came from the pajama top. I also recall for you that on the club outside of the house, it had both the purple cotton seam threads and the yarns from the rug. From that, I would ask you to find that there was a fiber interchange from this rug, after the blue yarns got on it, to the club.
Now, we have the blue pocket which is found here (indicating). From the photograph, you can see that the rug is turned up and that we appear to have the pocket upside down. I al-so ask you to recall, you have seen this rug and that there is no blood found on this piece of rug. Now, you may recall the testimony of Mr. Laber, the chemist from the CID Lab in 1970, but is now employed as a Chief Serologist for the Minnesota Laboratory, as to the testimony concerning the pocket from the pajama top. Mr. Laber, I believe, testified to not only the blood type of the stains which was Type A, the same type as Colette, and I would ask you to find that it is Colette's blood on the pocket, but also that the stains were of two types--that there was a smear on Area Two which is white beading and that the larger stains were con-tact or soaking stains. From that, I would ask you to find that Colette's blood was on the pocket of the pajama top before it was torn off because as you recall, the stains do not pen-etrate the double layers of the fabric by the seams.
We also have here the sheet which we will talk about some more. It has two blood types on it--Type A, Colette's type, and Type AB, Kimberly's type. You may recall that Mrs. Glisson showed you the two stains that were Type AB, Kimberly's type. They were droplets or spat-ter stains, I submit. I submit that they got on there when that sheet was in the master bedroom and the club was being wielded on Colette and Kimberly and the blood spun off and landed on the sheet.
You also remember we have got a piece of latex rubber with group A blood on it. Mr. Hoffman, the ATF chemist, testified that in his opinion, it was consistent with trace elements that were consistent with the Perry-brand surgeon's gloves and that in his opinion, they were of the same manufacture.
You may recall that the Defense expert testified after using a different procedure in 1979, that he found some 11 trace elements of which ten were common to both the exemplars and the evidence, and that in his opinion, they were not of the same manufacturing batch, as I recall. I would ask you to bear in mind that we are talking about parts per million and that the differences are very slight and that in the exemplar pieces of which--it was Dr. Guinn who tested it--there were eight pieces of rubber cut from three gloves. On no two pieces of rubber, either from two gloves from the same manufacturer or from parts of the same glove, were any of the trace elements--that is, the compositional or the number--would have been the same. I think that accounts for the difference. I would ask you to find that the Perry-brand latex gloves indeed matched the piece of rubber finger section that was found in the sheet. Besides, what is that finger section doing in the sheet on the floor anyway?
You also recall that you had the debris removed from that bedspread and that Mr. Stom-baugh testified that there was a hair which was identical to the hair removed from Colette's head at the grave which was entangled around the blue cotton thread from the pajama top or identical to the pajama top. I would ask you to find that it is indeed Colette's hair and that it was entangled around a thread from the pajama top and that that resulted or came from a forcible removal or some type of friction between Colette and the wearer of the paja-ma top, which is the Defendant.
You recall the splinter which we showed you. I won't go through that again, but that that splinter, Exhibit 125, was found in this area behind her head (indicating). You also have the debris removed from the head or under the head of Colette, the purple cotton threads from the pajama top, we submit.
We also have the piece of rubber--the Perry-brand surgical latex gloves here--and you have also got the Hilton bathmat. Also, you have debris under the trunk and legs of Colette, which match the purple cotton threads of the pajama top. I would ask you to find that from this evidence, the purple cotton threads from the pajama top were all over this master bed-room, and that they got there when that garment was ripped in the master bedroom and in no other fashion.
Again, we have more fibers matching the pajama top found in the area over here (indicat-ing), which I will ask you to note is directly beneath the lettering "Pig" on the headboard, which Mr. Medlin testified to could have been made by somebody using two fingers and wear-ing a rubber glove. Again, I will recall or ask you to recall that the finger section of the rub-ber glove with Type A blood was found in the sheet. I will also ask you to note that you have these hair yarns, or I guess you would call them ribbons, that were found on the night stand by Colette's side of the bed. I would ask you to recall that because we will tie that in in a minute.
Again, we have the pajama top and spatters of blood of Colette's type on the wall, which I submit to you resulted from the club being used on Colette in the master bedroom, "Pig" was again written in Type A blood, debris from the pillow case, more threads and yarns from the pajama top, another piece of rubber matching that, I would contend, of the Perry-brand latex gloves.
Okay, now, in Kimberly's room, you have again a splinter matching the club, you have pur-ple cotton threads on the north pillow, and you also have Type A and Type AB blood on the wall directly opposite Kimberly's bed. From the evidence, I would ask you to find that that blood got on the walls and the splinter on the pillow and the threads also in that area when the club was used by the Defendant standing on this side of the bed (indicating), swinging it down and hitting Kimberly. You will recall that Kimberly was struck--in the testimony by the pathologist--on both sides of the face.
Okay, also, you have many, many purple cotton threads inside the bedding. You may re-call the testimony of Dr. Chamberlain that the--I am sorry--the testimony of Mr. Shaw where the bedding was pulled back and by the time Dr. Chamberlain got there--Specialist Chamber-lain at the time--you were looking at the underside of the top sheet and it was from that area, as I believe he testified, that he removed the purple threads which were later identified as coming from the pajama top.
You will recall that we asked you to find that Colette was injured in the north bedroom.
You have her blood type on the wall where there were spatters on two areas. You have her blood--remember in Mrs. Glisson's testimony about the large stains on the top sheet in Kris-ten's bed--which I would submit indicate direct bleeding. She held them up and they were quite significant in size. You also have Kimberly's type--I am sorry--Kimberly's type blood is on the bedspread. You have got the blood on the floor right here (indicating). The testimo-ny about that was that it was all Type O blood.
Remember, a second ago, I asked you to take a look at the hair yarns that were on the night stand by Colette's side of the bed. You recall that there was a stipulation that the green yarn found on the floor by the rug here--you may have a little trouble seeing it (indi-cating)--matched or was microscopically identical to the yarns found on the night stand by Colette's side of the bed.
You may also recall that that yarn was knotted and appears to be broken. From that, I would ask you to find that that yarn was on the hair or on the head of Colette MacDonald when she was in that room and that it was pulled off and broken.
Again, you have more debris matching up to the pajama top and the splinter matching the club. You will also recall the testimony of the pathologist that Kristen sustained no blunt trauma injuries from the club. Why is there a splinter in that room? Why is Type A blood spattered on the wall? Why is Type A and AB blood found on the bedspread? I submit and ask you to find from the evidence that those stains and that debris results from the use of that club on someone with Type A blood in that room, and I would argue that that was Co-lette MacDonald.
We have the two areas which correspond to a right and left footprint. The left print was identified--in fact, it is uncontested--as that of the Defendant. It is also uncontested that the blood type of that stain is Type A blood. Now, I ask you, if there was no Type A blood on the floor in Kristen's room, and that that footprint is going out of the room into the hall-way, how did the Defendant get Colette's blood on his foot? What did he step on that has sufficient Type A blood on it to coat the bottom of his foot so that he could track it out? If he didn't track it in, how did he track it out? If there was nothing on the floor when the agents or the MPs got there with Type A blood on it, there must have been something which at one time was in that room that had sufficient Type A blood on it for him to step on to get the blood on his foot. I would ask you to find that there were three movable objects found in the crime scene which had sufficient Type A blood on them to coat the bottom of his foot. One would be Colette and her clothing, the other one would be the sheet from the pile of bedding on the floor of the master bedroom, and also the bedspread. We will tie that up in a second.
Now, you recall that Mr. Stombaugh went through the correlation of each of the items, the so-called weapons, and the clothing of the victims. I won't go through the other two charts here, but I would ask you to recall that it was only the Defendant's pajama top which had any cuts in it which were consistent with the Geneva Forge knife. That is the knife that was collected from the master bedroom near Colette's body, which had not enough blood on the blade to fully type. It was an indication that there was Type A blood. They were able to do the crust test, but there was not sufficient blood to do the elution test so they could only indicate that it was Type A blood. I would ask you to bear that in mind.
I would also ask you to remember that he tied up the ice pick as being consistent with the puncture holes in the pajama top and that in his opinion, the ice pick could have made the puncture holes in the pajama top. From the evidence, I would ask you to find that, in fact, this ice pick did make the puncture holes in the pajama top.
Now, you recall that Mr. Stombaugh testified to finding 48 puncture holes in this pajama top. Most of them are on the back with the greatest concentration in the area of the right shoulder and the right sleeve. I would ask you to recall that this would be the sleeve that would be closest to the wall in the living room and that it would be the left sleeve--the left shoulder that would be on the outside, the area where the alleged attackers were.
Now, Mr. Stombaugh testified that he examined all of these holes and from the absence of torn areas, he concluded that the holes were made while the garment was stationary. You also recall the testimony of Dr. Thornton, the Defense expert, and his experiment with the ham and the piece of cloth stretched tight over. We submit that that experiment is invalid because indeed if the garment is being supported in a taut fashion by something like a body, it would have torn holes. You also recall that when we performed an experiment with another pajama top for Dr. Thornton, the pajama top indeed does get ripped.
Further, you may recall that even when someone is not trying to stab somebody with an ice pick, it is very difficult not to hit the arms of the person weaving the pajama top back and forth.
You recall also that Mr. Stombaugh talked about--I am sorry--he talked about the blood stains on the pajama top, and in 1971, before he was really involved in this case, he was asked to determine whether the blood stains could have been on the pajama top before it was torn. You may remember that he testified that the blood stains in this area--the front panel (indicating)--the left shoulder and the left sleeve, in his opinion, were on the pajama top before it was torn. You will also recall that it had the Type A blood that was the same type as Colette's. I would ask you to find that Colette's blood was on the pajama top before it was torn. It was on it in three places, and that the rips were subsequently made through here and here (indicating).
Mr. Stombaugh also testified that in his opinion, the pajama top could have been torn if it was being worn by someone in a normal fashion and if someone was grabbing it and pulling away, or by someone holding the pajama top and spinning away. I would ask you to find from the evidence that the pajama top was torn by Colette MacDonald either by grappling at it or perhaps, we would argue, that the blood of the Type A--of the Type A blood on the Ge-neva Forge knife inside the house may have been wielded by Colette MacDonald in self-de-fense and defense of her children, and that that being the case, the Defendant spun away from the pajama top or from Colette and it was ripped in that fashion. But in any event, when it was ripped, I would ask you to find seam threads dropped out.
Mr. Stombaugh testified that there were 48 holes and you will recall that number. The sheet was found in the pile of bedding on the floor of the master bedroom, inside of which was the bedspread from the master bed. Mr. Stombaugh testified that in his opinion, this stain or the stains AB were made by the right sleeve of the Defendant's pajama top. You will recall the blood testimony and this is consistent with the Type A blood--this is Type A blood.
From that evidence, I would ask you to find that the Defendant's pajama top was soaked with Colette's blood and came in contact with this sheet and made these stains.
You will also recall that Dr. Thornton, the Defense expert, testified that he agreed with Mr. Stombaugh as to how these stains were made.
We have the other side of the sheet, and you recall that there was testimony about the left shoulder impression in the area corresponding to the torn left sleeve of the Defendant's pajama top when it was folded in this fashion (indicating) which would mean that the stain was made after the garment had become soaked in the Type A blood--Colette's type--and then came in contact with the sheet. I would ask you to find from the evidence that this stain was indeed made by a bare left shoulder print and that was the left shoulder of the De-fendant and his pajama top had been ripped in the left panel which had been draped down hanging off his left shoulder--not by a doorknob or by someone wearing a body suit or some other such thing.
I also remind you, if I may, that there was absolutely no evidence that this sheet--the blood on this sheet--was moist when it was picked up by Mr. Ivory and put in the evidence bag. You will recall that there were photographs. In fact, this photograph here (indicating) was taken by Mr. Page at practically mid-day so that this sheet was collected sometime--in fact, the photograph has been cropped, but there is another photograph in evidence which shows the clock on the dresser and it says quarter to 1:00; so, the sheet was collected, at the earliest, sometime after quarter to 1:00. This would be hours after the blood initially came into contact with the sheet. I submit and ask you to find that the blood was dry on the sheet when it was picked up.
You recall the testimony about the handprints--Mr. Stombaugh's opinion that they were made by a left and right hand. Dr. Thornton disagreed and said that it was made by multiple drops of blood falling into the same general area. I submit that that explanation is not credi-ble. I would ask you to find that these stains were made by handprints.
You recall also that Mr. Stombaugh and Dr. Thornton testified that Area F, I believe, which is here (indicating) was made by the left sleeve of Colette's pajama top. Now, we didn't hear from Dr. Thornton about Area G which Mr. Stombaugh testified that in his opinion correspond-ed to the right sleeve of Colette's pajama top. We did hear from Mr. Morton. In Mr. Morton's opinion, although he did not make a direct comparison and did not measure it the same, it was made by a handprint. I would ask you to find from the evidence that the stain corre-sponds in size and configuration to the right sleeve of Colette's pajama top and ask you to find that it was, in fact, made by that pajama top.
The bottom line is that we have the right cuff of the Defendant's pajama top and the left sleeve of Colette's pajama top, and obviously, if you have got one sleeve, you have got the other sleeve, and if the pajama top is soaked in blood, the hands of both persons are also going to be soaked in blood and that is how you get these prints.
Now, to tie some of this together, we have on the sheet massive amounts of Colette's blood and Kimberly's blood spatters. We have fabric impressions which we have just gone through, the right and left sleeve of Jeffrey's pajama top, the handprints, Colette's pajama top, and the bare shoulder print. You also have the debris removed from the sheet. You have got the piece of rubber--the finger section with Type A blood on it which matches the Perry-brand latex gloves also found in that sheet. Now, what was all this stuff doing here?
This can't be, I submit, a coincidence that all of this stuff is found in that sheet when you add to that the debris from the bedspread. You have Colette's blood. You can see there is a large area of the bedspread that was stained with Colette's type. You have the debris re-moved from the bedspread, the purple cotton thread from the pajama top entangled with Co-lette's hair.
Again, I would ask that all of this cannot be a mere coincidence. I ask that you find from the large amount of Type A blood on the bedspread that it was the bedspread from which the Defendant got the Type A blood on his foot in Kristen's room.
Now, we have what has come to be known as the reconstruction. You recall that Ms. Green testified that she took 21 probes by a trial and error method and was able to simultan-eously insert 21 probes through the 48 holes forming the pattern that you see here.
You may also recall that there was much ado about whether the garment was placed or folded in exactly the same position that it was found on Colette's body, but we contend and I believe what the evidence shows is that the examiners folded it--that is, turned the right sleeve inside out as it appears in the photograph and used that as the basis for the recon-struction. You can't do this with the left sleeve turned inside out.
We do not contend that it was placed in exactly the same position as it was--as each stab wound was being inflicted through it into the body of Colette MacDonald. Obviously, we couldn't do that because we didn't have the body, but I would ask you to find that it was folded with the right sleeve inside out and that that corresponds to the position in which it appears in the photograph.
Now, you also remember Ms. Green who was subjected to a rather lengthy cross-examina-tion and who testified as to how she did with the reconstruction. Ladies and gentlemen, I would ask you to find from the evidence that this could only happen in this fashion, and only if that garment was folded right sleeve inside out and was on top of Colette's chest, and that 21 perpendicular thrusts with an ice pick went through it into her chest, forming the pattern which you see here (indicating).
Now, Ms. Green performed some additional reconstructions from a vertical view, and you would see from what we have here as his pajama top and the photograph of Colette's injuries and another photograph with the pins removed and put into the graph paper which is in evi-dence and is a side-by-side comparison of the patterns' correspondence. This cannot be, I submit, coincidence. This could only have happened in the way in which we contend it hap-pened--that is that she was stabbed through that pajama top 21 times with an ice pick.
Again, we believe that we have proven by physical evidence which is indisputable and which is cold and which is logical that the Defendant and no one else committed this crime. Now, if we have convinced you of that beyond a reasonable doubt, but you are still uncom-fortable because we haven't answered the question as to whether the Defendant is the type of person who could have done this, I submit to you that that is an emotional doubt and not a reasonable doubt. I would again ask you to recall the Court's instructions that you decide the case on the basis of the evidence and not on the basis of emotion or prejudice.
This concludes my portion of the presentation of the opening argument of the Govern-ment's case. I thank you again for your attention and your patience.
THE COURT: Mr. Blackburn?
O P E N I N G A R G U M E N T
MR. BLACKBURN: Ladies and gentlemen, as I recall, the first time that I learned from this evi-dence that the Defendant's story, which you heard many times both on the direct case and the Defendant's case as to what happened on the 16th and the 17th, came sometime after 4:00 o'clock that morning when Sergeant Tevere, Kenneth Mica, and other MPs came to the MacDonald house for the first time to respond to what they heard on the radio was a medical emergency.
Recall that Tevere and Mica, the Government's first two witnesses in this case, who heard the Defendant say something like this in the master bedroom, "There were four intruders," and he described them. "There were three males, two of them white, one of them black, wearing a fatigue jacket with E-6 Sergeant stripes on one of the sleeves." The girl, as Te-vere and Mica stated, as I recall their testimony, "had on white muddy boots. She had a floppy hat. She had long blonde-like hair." He thought she was carrying a candle, and these four people tried to kill his family and left only him alive.
Shortly after 4:00 o'clock, he went to the hospital. About four hours later, his family went to the hospital, but unfortunately, at about 9:30, rather than responding to additional medi-cal treatment, Colette, Kimberly and Kristen were autopsied.
Now, for just a few minutes, I want to go through again a rather unpleasant task, and that is to examine again the injuries sustained by all four people in that house.
Let's take first Colette MacDonald. You will recall the testimony of Dr. George Gammel who performed the autopsy on Colette MacDonald. What were the injuries that she sus-tained? First of all, he testified that she had two broken arms. I think the right arm was bro-ken in both bones. And as I recall the testimony, the left arm was broken and one of the bones was broken in two different places.
In his opinion, those were in the nature of defensive wounds and were, perhaps, some of the first wounds that she received and could have been caused by the club. Now, she also received, as you recall, between six and eight lacerations--one to the chin, as I recall, down here (indicating), several to the head, breaking the skin and in the middle of her head, frac-turing the skull. She received numerous wounds that, in his opinion, were inflicted with a single-blade sharp knife that could have been done by the Old Hickory knife that, as you re-call Paul Stombaugh's testimony, was sharp and you recall Bob Shaw's testimony was found at the MacDonald house outside the back door of the utility room.
About 16 or 17 cuts, she received. As I recall, nine in the neck and seven in the chest. In the chest, her pulmonary artery was cut or hit, her lungs were punctured, her trachea was hit at least twice. Colette MacDonald died, according to Dr. George Gammel, simply bleeding to death.
She also received 24 puncture wounds that were consistent with the ice pick and could have been made by that ice pick according to the testimony of Dr. Gammel. That also, if you recall the testimony of Bob Shaw, was found outside the utility room door.
Now, ladies and gentlemen, three of those ice pick holes, we submit, were on the left arm.
Twenty-one--21--were found in the chest, 16 in the left and five in the right. She received a whole lot of injuries. She was hit a lot of times. She was stabbed numerous times by nu-merous weapons. Does that suggest to you, simply because more than one weapon was used, that there was more than one intruder or more than one killer? We suggest not. We will tell you later in our argument this morning why we believe that.
Let's think about Kimberly MacDonald--the five-year old. She also got hit by this club, we submit the evidence shows. Dr. Hancock, who performed the autopsy on her, said that she had at least two--at least two hits to the head. It fractured her skull. The base of the skull--you saw that really just horrible picture of the back of her skull that was cracked in six to eight places, he said. As I recall Dr. Hancock's testimony, he said that if she hadn't got hit again by anything else, she probably would have died or could have died from those blunt trauma injuries.
Her nose was broken and pushed off to the right. She had a laceration on the left side of her head. It is interesting as you recall the photograph--I don't know if it is here or not, but you have seen it just a little while ago right here--that when she was in the bed, she was laying on her left side--laying on her left side where there is an injury. Now, she also re-ceived, according to Dr. Hancock, while she was at least clinically still alive--he could not count the number exactly because of the closeness of the injuries--at least eight to ten in-cised cuts to the neck that could have been made also by a single-blade knife such as the Old Hickory knife.
What about Kristen--the two-year old or two and a half-year old, we submit killed in her own room and perhaps in her own bed? She didn't get hit with the club. She was the only one that didn't, but she got hit a lot with the knife, we submit, and a lot with an ice pick. At least 33 times, somebody--somebody at least 33 times raised a hand and came down in her body with what we submit the evidence shows was either an ice pick or a sharp knife. Did the killer have to have those two weapons at the same time? Not necessarily. Not neces-sarily.
You recall the testimony of Dr. Hancock that the ice pick or the puncture wounds were rather superficial compared to the stab wounds--one of which went through the heart.
You remember that Dr. Hancock said that she had some cuts. I don't recall which finger but on several of her hands and one sort of long cut in the nature of a defensive wound.
You know what that suggests, ladies and gentlemen? It suggests that before Kristen Mac-Donald died, she knew--she knew what was going to happen because she fought back.
Now, what about the Defendant's injuries? There has been a tremendous amount of tes-timony about the Defendant's injuries. I think it is undisputed from both sides that at least he had a contusion on the left side of his face or head that was non-bleeding and that ac-cording to, I think, Dr. Gemma and perhaps one of their own doctors, could have caused un-consciousness, although as I recall the testimony of Bronstein, he could not predict whether or not immediate unconsciousness would result.
Dr. Bronstein stated that unconsciousness could not have come from bleeding wounds. You recall Dr. Jacobson, who said that he had four, I guess, what he called punctate injuries in this area (indicating)--sort of in a line--one, two, three, four close together--I think he used a fork or something like that when he testified as to what it might have been made with in his opinion.
You recall the testimony, I think, of all the Government's doctors that he did have a cut over here (indicating) that did not require suturing or extensive medication. He had a cut right in this area of his body (indicating) which, I think, went this way up and down (indicat-ing). It did not require suturing, although Dr. Gemma, in fairness to the Defendant, said that perhaps he should have done that or could have done it, but it was not done and that it would heal on its own.
Of course, he had an injury to the right side which caused the pneumothorax. Think for a moment of the testimony of the Government's doctors and even on cross-examination, the Defendant's doctor who stated that it was a treatable medical injury, and that in his opinion, any injury inflicted to the chest is potentially fatal. Recall the testimony of Dr. Gemma who said, as I remember, that if you got proper medical treatment, the insertion of a chest tube and the chest tube worked properly, that there was very little--almost no risk of it develop-ing into a tension pneumothorax.
Well, I am not going to stand here today and argue for long, ladies and gentlemen, over whether a pneumothorax is or is not potentially life-threatening or not life-threatening. That could go on all day long, but I do submit to you, ladies and gentlemen, even if the Govern-ment concedes, which we do not, that that was a potentially life-threatening wound, even if we concede, which we do not, that point: how many--how many did he get compared and contrasted with the number his family got? One. How many ice pick wounds did Dr. Bron-stein say he saw in Jeffrey MacDonald's chest? None. How many ice pick wounds did Mike Newman, the first person who washed up the Defendant, say he saw in MacDonald's chest?
None. How many ice pick wounds did Frank Gemma say he saw? He said that he didn't ob-serve any.
Now, of course, on the Defense case, two of his friends--half character and they were doctors--they observed the Defendant, and they saw some injuries that they said could have been made or were puncture wounds. Of course, when they drew on the diagram over there, as I recall, they drew a lot and they didn't always match as to where they saw them. Ladies and gentlemen, they didn't read the medical records. They didn't examine, by their own tes-timony, the Defendant.
Now, I am not trying to suggest by and in of itself that because the Defendant was not killed, he is, therefore, guilty of the slaughter of his family. I don't think that is sufficient evi-dence. I am not saying that. I am saying that when you compare and contrast his injuries to their injuries with the other physical evidence that we have, it certainly should raise in your mind the question as to why he was not hurt worse.
The coloring, according to the Government's doctors of the Defendant, was good. His condition, according to their testimony, was good. He walked to the funeral. He was out of the hospital in seven or eight days. In seven or eight days, Kimberly, Colette, and Kristen went to Long Island to be buried.
Now, we heard a lot of testimony--a lot of testimony during the Defense's case about drug abuse. We even heard yesterday from Dr. Hughes. We heard Major Williams talk, gra-cious, at length about all the people that had grudges, perhaps, against the Defendant. He said, as I recall, when he heard that the Defendant's family had been killed, "My God, the drug people have gotten him," or something to that effect.
You recall that they were concerned that perhaps MacDonald was a fink because he had--perhaps there was no privilege between a doctor and a drug patient at Fort Bragg. Okay, we see all of that. If that be true, ladies and gentlemen, let me ask you some questions. Why, if they had a grudge against the Defendant, didn't they kill him? Why, if they came there for wanton destruction, didn't they kill everybody--particularly, one who could identify them?
Why do you kill a two and a half and a five-year old and don't kill the strongest person who can hurt you back? Why, why did the intruders leave the Defendant alive?
Now, you recall the pajama top. Why did he not get more serious injuries? Well, of course, he was defending himself. You recall the testimony of Stombaugh, Thornton, and the Defendant himself on the stand--particularly, on cross-examination last Friday. We tried to simulate it, and, of course, we couldn't exactly, and I don't pretend that we did. But he said, as I recall his testimony, that it wasn't next to his body like it was on the ham. It was prob-ably away from his body. He said, as I recall, he didn't move it like Brian and I did in the courtroom, so it tore. I think he said that he sort of held it like this (indicating) and that the person who had the ice pick came at him not like I did but from like this (indicating).
Ladies and gentlemen, according to the testimony of Paul Stombaugh, this thing has got at least 48 holes in it--puncture holes. Is the Defense saying that in a life and death strug-gle--that in a life and death struggle, you stand there with this thing (indicating) in a rela-tively stationary position while somebody comes at you like that (indicating)--I don't know how many times--and doesn't hit your wrists and doesn't hit your arms? Where are the ice pick injuries to his hands? Where are the ice pick injuries to his wrists and arms? By every-one's testimony on this subject, there were none. I submit that that story is not worthy of your belief. I suggest that the evidence shows this thing (indicating) was never held like that. I suggest that the evidence shows that if it were, those holes--you can look at it--you can look at every single one of them--those holes wouldn't be like that. They would be torn and they would be ripped and the Defendant would have some cuts on his arms or his wrists or his hands to coincide with the punctures by the ice pick.
Ladies and gentlemen, I suggest that the evidence shows that there was, in fact, a life and death struggle in the house that night--there truly was. I suggest that there were at least two white people involved in it. I suggest the evidence shows that there wasn't a black person involved. There was only one white male and one white female. The white fe-male was Colette MacDonald and the white male was her husband, Jeffrey MacDonald. I sug-gest to you that some of the injuries that Jeffrey MacDonald sustained could well have been inflicted by his wife, Colette. We know from the evidence, ladies and gentlemen, that she fought--she fought mighty hard before she died. You don't get both of your arms broken by standing there waiting to be killed. You don't get all the injuries she got just standing there waiting to be killed. You just don't do it.
You recall the testimony of Gammel and Hancock--particularly, Gammel with Colette--he said that the stabbing injuries came at a perpendiclar plane--perhaps while the body was flat--suggesting again that she was struck first with the club. Compare, ladies and gentle-men. It is incredible that he got with what they got. If they wanted to kill him, why didn't they? What was their motive?
We know from the autopsies that it wasn't sex abuse. We know from the testimony of Bill Ivory who testified, I think, on a question on cross-examination for five or ten minutes, it was not vandalism, in his opinion. The house did not look ransacked. The clothes in the closet were still hanging. The furniture was not taken. Of course, the Defendant stated, as I re-call, some rings were taken. We have only his word that those rings were there the night the murders occurred. He stated that the wedding ring of his wife, Colette--the wedding ring of his wife, Colette--he had never seen and been introduced into evidence--what do you think that is, ladies and gentlemen? It was taken from her left ring finger, according to the evi-dence in this case.
The Defendant stated that four intruders came to his house that night. We heard a lot of testimony about intruders. We had hippie day and hippie week, I suppose, in this courtroom.
First, we had, I think it was a Wednesday afternoon, Mr. Milne--you remember Mr. Milne from Virginia--he is the fellow that saw three people in three sheets--white sheets, as I recall his testimony--walking behind his house which he saw just after he had been working with some glue or working on a model airplane or boat. He went to the back door and saw them. They were talking in a monotone voice, as I recall his testimony. They were all three carrying can-dles. It wasn't raining. The girl was pretty. She had long blonde hair. They come around the house, and he sees them going toward the MacDonald house, he said, although he doesn't seem them go in the house and does not know whether they went right or left on Dougherty or onto Castle Drive.
Because of his own personal concerns and work, he doesn't mention this to anybody. He doesn't tell his friends the next day after he learns of the murders. He tells his brother, a lawyer, a year or two later. He tells the Defendant some years later, but he doesn't tell the FBI, doesn't tell Don Murray about a month or so ago. Not one time on his own initiative--not one time did Mr. Milne ever seek to talk with a law enforcement agency about what he saw.
The time, ladies and gentlemen, that he said he saw these people--even if you believe what he said is true, and I suggest that it is not worthy of belief, but even if you do believe it--what was the time that he saw these people? By his own testimony, it was 12:00 o'clock. What time did the Defendant say that he went to bed as best he could recall? At 2:00 o'clock in the morning or at 2:15. What did these three people in the sheets do for the two hours between the time Milne saw them and the time they went into the MacDonald house--or two or three hours? Did they walk around with the sheets in the rain, as it was raining later on according to the MP testimony, around Castle Drive and just wait for the oth-ers to come? What did they do?
Milne did not say that he saw a floppy hat. He didn't say that he saw any weapons, but the Defense wants you to believe that those three people might well have been the people who went into the MacDonald house. Don't you believe that.
What about the girl that Mica saw at the corner of Honeycutt and North Lucas? Mica, who we brought out on our direct case, the second witness, said that he saw a girl. What was she wearing? Well, she had a hat--a rain hat. She, I think he said, had a rain coat or a coat. Did the Defendant describe the girl he saw as wearing a coat? I don't believe I heard that. Mica also said that she had nice legs.
Well, you know, that may seem sort of silly, but, you know, that is quite important, be-cause if it is credible that Ken Mica saw a girl--you have got to believe that over here--it is just as equally credible over here that you have got to believe that he said she had nice legs. Why is that important? Because the Defendant said that the girl he saw in his apart-ment--the last thing he saw as he fell unconscious was a part of a knee or leg and high-topped boots. The girl Mica saw, I suggest the evidence shows, was not the girl described by the Defendant.
Then, of course, last Friday and Monday and maybe even part of this Tuesday morning, we had hippie day. We had Helena Stoeckley day. Perhaps one of the most pathetic tragic persons who has testified in this courtroom--Helena Stoeckley. She said, as I recall her tes-timony, that at 12:00 o'clock, she was in the driveway with her friend, Greg Mitchell, who gave her a hit of mescaline. She did not have her blonde wig on at that time. It was, per-haps, in the closet in her house.
At 12:00 o'clock, she was in the driveway and she knew where she was and she said that was a 20-minute drive away from Fort Bragg. Isn't that interesting, ladies and gentlemen.
The Defense, on Wednesday, puts on some testimony that Milne saw all these girls--the girl and two guys--at 12:00 o'clock, and at the same time on Friday morning, they put on anoth-er witness who they contend, or I think they will argue, was this hippie girl, and she knows where she was at 12:00 o'clock. These are two mutually inconsistent stories.
The only thing that links Helena Stoeckley to this crime scene is the fact that the Defen-dant says that he saw the girl and poor Helena doesn't know where she was between 12:00 o'clock and 4:30 in the morning. She doesn't have an alibi. She said on cross-examination that the first time she heard of the murders was when she heard it on the radio when she got home.
You heard her testify that she was harassed by the cops. You heard her say that she got rid of her hat, but you heard Mr. Beasley say that the hat he got from her was black, but Dr. MacDonald says that the hat he saw was white. Again, a mutually inconsistent fact.
Now, ladies and gentlemen, just because Helena Stoeckley doesn't know where she was does not make her the person on trial in this case and doesn't make her the person that was in the MacDonald house that night. You heard her testimony when she looked at some pic-tures on redirect on late Friday afternoon. They showed her a picture of Kristen--the one, I think, that Brian showed you this morning. She said, as I recall, "That girl looks familiar to me." She didn't say that the scene looked familiar to her. She said that the girl looked famil-iar to her. I said, "Well, where do you think you could have seen her?" She said, as I recall her testimony, "Well, it might have been, you know, around Fort Bragg or somewhere on post."
They made a big deal about the hobby horse--that the hobby horse, you know, looked familiar. Ladies and gentlemen, we showed you yesterday--the one thing we did on rebuttal evidence--the only thing we did--we showed you the fact that the newspaper on the day after the murders had a photograph of that hobby horse in that room in the paper. I suggest to you that you can infer from the evidence that's where Helena Stoeckley, if she saw that hobby horse at all, saw it, like everybody else in Fayetteville, in the morning newspaper. She was on drugs for a long time, but that doesn't make her guilty of murder.
I asked her on cross-examination if she did participate to her own knowledge in the killing of the MacDonald family. She said "no." The only thing that she said was that she didn't know where she had been.
You heard the testimony of H. O. Medlin, the fingerprint examiner, testify that he was giv-en record prints of Helena Stoeckley. They were not located in the MacDonald apartment. They were not found there.
Then, we start on some drawings. We notice that four drawings were taken in 1970, and then, four drawings were done 1979--a little bit more specific with the girl looking a little bit more like Helena Stoeckley except for the chin, as I recall, and perhaps her hat. We know that a cross was found around one of the necks that wasn't in the picture in 1970--a little bit more specific. We narrow it down to Helena and her friends matching over the other two.
Why was it necessary, ladies and gentlemen, if the photographs and the drawings were good enough in '70, why weren't they good enough in '79? I suggest that you infer from the evidence that the reason the new drawings were made were to look like Helena and her friends.
You recall the question and answer of Dr. MacDonald on cross-examination about Helena Stoeckley when we read to him the testimony at the Article 32, "Have you ever seen this photograph?" I think it is G-105, the picture identified by Helena on the stand as a picture of her. "Have you ever seen the girl in that photograph before?" It is a full front page picture of her face. Do you know what he said? He said, "No." Then, they come in here and try to make you believe that Helena was the one, when the Defendant himself in 1970 said that he had never seen her before.
In any event, ladies and gentlemen, he said on his own direct testimony and maybe cross, too, that he only saw her for a second or two. She was the least person that he saw. They make a big deal about the three people around him carrying candles. The Defendant himself is not even sure that they had candles. He only knows that there was a flickering light.
Ladies and gentlemen, think for a moment what you need to make the Defendant's story concerning the intruders and what happened to him make sense. First of all, you need three sheets which were left outside the house. You need some candles--at least three. You need a white hat according to his story, a dark hat according to Mr. Beasley. You need some boots. You need a feather. You need a club other than the one right here (indicating)--per-haps like a baseball bat. You need a motive for them. Randomness? If it was randomness--if it was, why didn't they kill him? If it was motive because of drugs, why didn't they kill him? If it was vandalism, why didn't they take something? Why were syringes and medicine left in the MacDonald apartment?
Ladies and gentlemen, the Defendant's theory of defense in this case has sort of been like this. "I tell a story and you are to trust me. I am telling the truth. I loved my family. I loved Colette. I loved Kimberly and Kristen. Trust me. I couldn't have done this. I could not have done this. There has been a lot of character testimony. They say I can't do this; and therefore, because I am not the type of person, I couldn't do that."
Ladies and gentlemen, as Brian Murtagh told you this morning, if we convince you by the evidence that he did it, we don't have to show you that he is the sort of person that could have done it.
The other part of their theory is to attack--attack the Kassabs, attack the CID, attack the Justice Department, and even attack the Government prosecutor. What they really want to do, ladies and gentlemen, they want to create confusion by all the hippie stories and by all the intruder information--create confusion. They don't really care, I suggest, whether you believe Mr. Milne or Helena Stoeckley or the people to whom Helena Stoeckley spoke or the girl that Mica saw. They don't care which one of those you buy, just so long as you buy one of them.
I suggest to you, ladies and gentlemen, that if we prove to you that that was MacDon-ald's footprint in A Type blood, as I will later speak to--if we prove to you that Colette's blood got on that pajama top before and not after it was torn, then it doesn't make any dif-ference if there were 5,000 hippies outside Castle Drive at 4:00 o'clock in the morning screaming, "Acid is groovy; kill the pigs" because they have not shown that those hippies were inside the house. It doesn't matter what was going on outside unless they can also tie that in to the inside. That is where the people died. They didn't die outside on Castle Drive.
They didn't die out by Milne's apartment. They didn't die at North Lucas and Honeycutt.
They didn't die in Helena Stoeckley's apartment. They died at 544 Castle Drive. For all we know, ladies and gentlemen, the Defendant himself did, in fact, see the people that Milne saw and that is where the story of the intruders came from. We don't know, ladies and gentle-men. I can only tell you from the physical evidence in this case that things do not lie, but I suggest that people can and do lie.
Ladies and gentlemen, the Defendant, by all the evidence, is an outstanding doctor. I don't think anybody could dispute that. In 1970, he had a lot to live for. His wife, Colette, had a lot to live for, too. She had a dream, according to his testimony, of a farm in Connec-ticut with children five, animals and cats and dogs and horses. The children had a dream, too. They wanted to grow up. They wanted to be alive. They didn't get that chance. The Defendant wanted to continue, I suggest, his career as a doctor. I think it is reasonable to infer from the evidence--you heard Dr. Hughes yesterday talk about his airplane, his boat, his car, his medical kits, and the money it must take to buy those things--you can't have those things, ladies and gentlemen, if you are in jail.
If we are correct--if we are correct and the Defendant did what we claim he did--if he could murder his family, think for a moment what he would do on the witness stand to save his life and his career. Think, ladies and gentlemen, about that when you judge the testimo-ny and credibility of all the witnesses, and you put his to the same test that you put Paul Stombaugh, Ken Mica, or Richard Tevere, or any of the Defendant witnesses. They have tried to create in this trial reasonable doubt, which is fair, because we have got the burden of proof of reasonable doubt. We have got to prove it to a moral certainty beyond a reason-able doubt and we think we have done that--not an emotional doubt--but beyond a reason-able doubt.
Now, of course, the burden of proof never shifts to the Defendant. It is always the Gov-ernment's burden of proof, but the Defendant chose to present evidence for something over two weeks and what was the evidence that you heard? It was evidence of character testi-mony, of intruders, a story in which he really did not attack our physical evidence, and about two and a half days of expert testimony concerning the physical evidence in this case.
Ladies and gentlemen, I would suggest to you that when you compare what their experts say with what our experts said--and we will come to that in a little while--you will see that the physical evidence in this case, after all the dust has settled, is still up there standing and it hasn't been knocked down.
THE COURT: All right, that brings us up to our morning recess hour, members of the jury. We will take a recess now and we will come back at 11:00 o'clock. Don't talk about the case.
(The proceeding was recessed at 10:45 a.m., to reconvene at 11:00 a.m., this same day.)
F U R T H E R P R O C E E D I N G S 11:00 a.m.
(The following proceedings were held in the presence of the jury and alternates.)
THE COURT: Does this conclude the Opening Argument for the Government?
MR. BLACKBURN: No, sir.
THE COURT: No; you have more?
MR. BLACKBURN: Yes, sir.
THE COURT: All right; proceed.
O P E N I N G A R G U M E N T (continued)
MR. BLACKBURN: Ladies and gentlemen, you might recall about 15 minutes ago just before the break, we were talking about the Defendant's story of the intruders. When you take all seven weeks that you have all been here and all these charts and all this testimony and all the bench conferences and you pour them all out the window, you are left with two things, and it is those two things on which I suggest that you have got to make a decision.
You don't make your decision on who has the best charts or which expert's got the most degrees and who has published the most in the field. We will concede that. We have not published in the field very much. We have been out in the field. It boils down to two things. One, is the Defendant's story and his credibility that it is true. If you believe it is true, if you believe everything he said, then your task is relatively simple. You will acquit him.
If, on the other hand, you contrast that with the physical evidence and somehow it doesn't wash, it doesn't make sense, then you have got a little bit more of a difficult task and it might take you a little longer. I suggest that when you compare and contrast his story versus the Government's story--testing the credibility of the Government's case as well, as I think you should--you have got to come down on one side or the other, because I suggest to you that the evidence in this case, if it shows nothing else, it does show that what he said and what the physical evidence says are not reconcilable and that they are diametrically op-posed.
Brian Murtagh spoke briefly about the crime scene. If you believe that because Richard Tevere picked up the telephone on which no prints were later found, if you believe that a broken flower pot picked up by a medic, if you believe that some clothes in the hall put on the sofa by Joe Grebner, if you believe that Bob Shaw in picking up the glasses and looking for a fleck of blood--interestingly enough found to be consistent with the same blood type as that of Kristen--if you believe that these things--along with letting the garbage can be emp-tied before they looked into it--if you think that all of those things are so important and so bad that you have got no choice but to acquit the Defendant, then I think you ought to do it--smoke a cigarette and do it.
I suggest to you, ladies and gentlemen, those things--really, the only things that are sig-nificant that the Defendant has shown that were not done correctly--are not relevant.
Whether or not H. O. Medlin fingerprinted the whole part of the master headboard and when he only printed the part where the word "Pig" was written doesn't change the outcome of this case. You remember the door that Dr. Osterburg said ought to have been printed on every side? He forgot to say whether or not it was open when the people came in, making it rele-vant or not relevant as to whether it was, in fact, dusted for prints.
If you believe that because the film moved when a truck or something went by and some of the prints had to be re-taken two months later--and as they were by maybe not as nice a camera as the Defense had but the only one that the Government at that time had at the CID--if you believe that that entitles the Defendant to an acquittal, then acquit him. I sug-gest that none of those mistakes change what is here. We aren't asking you to convict the Defendant on what might have been. We are asking you to convict the Defendant on what we have got--what is here--not what is not here--not what we didn't find--but what we did find.
What about his story? You recall last Thursday, he took the stand for the first time on di-rect testimony. He stated a lot of things and told briefly the story of the intruders and how he was struck. As I recall his testimony on direct, he was rather vague--his memory was rather vague about how it all went down.
You remember Friday on cross-examination the questions that we put to the Defendant.
Let's take his story and let's go through it--the crime scene--and see how it fits with the physical evidence.
First of all, he said that some intruders met him in the living room--right there (indicating), and he drew these people. There was one, two, three, four. The girl was number four, I think, and she is the one that might or might not have had the candle. He wasn't sure. The black had the club, but I think he said on cross that it was probably not this club. I think it was round like a bat and didn't think it was this club. As I recall his testimony, he said that the first time he ever saw this club was the 6th of April, 1970. Isn't that interesting when you compare the testimony of the Government experts that this was, in fact, the murder weapon used on Colette and Kimberly, certainly, or a murder weapon and that it did come from the house--once part of the piece of wood that formed a bed slat in Kimberly's room--but he didn't see it until the 6th of April, 1970.
How many threads--purple, blue, yellow, green, any color--were found in the living room?
You heard Bill Ivory and Mr. Medlin say that they went through the nap of the carpet in the living room. How many threads, yarns, and fibers did they find? Not a single one. How much blood where he says he was struck with a sharp blade was found in the living room, on the sofa, on the wall, on the floor, on the table, on the glasses, on the Esquire magazine, on anything that matched his blood type? None.
How many splinters were found in the living room that matched anything? None. But we know that splinters were found in Kristen's room, Kimberly's room, and the master bedroom.
Now, on cross-examination, I recall that I asked the Defendant about the B blood; if the jury should find, as I have just told you, did he have an explanation for that. He said, "Well, it is obvious that the wound did not bleed too much." Well, perhaps that makes sense until you remember, ladies and gentlemen, that by his testimony, he believed, although there is a question mark, but he believes that he did not go to the hall bathroom until number six--he did six things. He first went, as I recall it, after he was knocked down here (indicating) and fell here (indicating), he goes to the master bedroom and then to the kids' rooms and then to the hallway and then somewhere else before he goes back to the hall bathroom and washes off his hands for the first time--washes off his hands. His hands were bloody according to his own testimony.
He had touched three dead people who had bled a lot. You recall his testimony on both direct and cross, "I saw a lot of blood." Well, then, why is the blood in the bathroom sink, according to the Government testimony, that of Type B which matches his, rather than Type A, Type AB, or O which matches his family? Well, perhaps, this blood came from him--on his body. That is all right until you think for a moment that if the wounds didn't bleed too much over here, how come he bled a lot more over here? You know, he said that he lay unconsci-ous, for how long he did not know, right there. How much blood of Type B was found on his pajama top which he said was under his wrists? Very little. How much Type B blood, if any, was found here?
Ladies and gentlemen, I suggest to you that the reason and the explanation why there is no Type B blood in the living room, why there are no splinters in the living room, why there are no threads and yarns is really a very easy answer there, I suggest to you. You can infer from the evidence. What you can infer from the evidence is: one, the pajama top wasn't torn then; two, a club did not splinter there; three, nobody bled there; and four, you can in-fer from the evidence that no struggle took place there.
Now, I am not about to suggest in what I am getting ready to say in the next few minutes that the burden of proof ever shifts to the Defendant because it doesn't. It stays with us.
You recall on Friday that we asked a lot of questions that if the jury should find this and that, did he have an explanation of that. You recall essentially his testimony: "It would be pure conjecture," or "No," or "I can't recall." Perhaps he does not have to explain, but think for a moment if you were on trial for your life and the only thing that made your story per-haps not believable was the inconsistency of the physical evidence. Don't you think if you could explain it, you would? Don't you think for one moment if you were on that stand and somebody asked you a question like I asked Dr. MacDonald and you could tell me, "Mr. Black-burn, you are an idiot. Here is the answer. Bam."; doesn't it make sense that you would do that? I suggest that it does.
Let's go to the master bedroom. You heard this morning from Brian Murtagh and earlier in the trial from a number of Government witnesses--Paul Stombaugh, Dillard Browning, and oth-ers--a number of threads and yarns microscopically matching the pajama top were found there. As I recall the testimony, I think there were over 60--over 60 purple cotton sewing threads which matched identically in composition, color, and texture to the blue pajama top, over 18 blue polyester yarns matching the pajama top and at least one blue-black sewing thread matching that top. What does that suggest to you? I suggest that you can infer from the evidence that they got there because that is where the top was torn.
Now, what does the Defendant say about that? He says, as I recall his testimony now and in the past, that he doesn't know where the top was torn. It could have been torn here or it could have been torn in the master bedroom. We asked, "Did you hear any ripping sounds when you were in the master bedroom," and he said, "No." I asked him if he had an explanation for why there were no threads in the living room. He said, "Well, it would suggest to me that perhaps it was not torn there. It was pulled over my head." You also recall his testimony that he said that he didn't remember backing his head through the pajama top. It is either one or the other.
Now, if the pajama top was pulled over his head, what were all these four people doing while it was being pulled over his head? Was the guy with the club standing there like that, waiting until he got it around his wrists before he could bash him again, because it is not fair to hit a guy when he is down? What was the guy with the ice pick or knife doing? Again, waiting--didn't want to hit him in the back--he was going to hit from the front--you know, it is a coward that hits in the back.
They weren't very courageous when they hit Kristen from the back, were they? Ladies and gentlemen, I suggest to you that even if the pajama top had been torn in the living room and miraculously had left no threads or yarns--you recall the testimony of Paul Stombaugh of how it is torn. It is torn down the front. If it is torn down the front, does that tie up your hands? No; it would leave them as they were, I suggest.
You have heard the testimony of Paul Stombaugh, who stated that with respect to the pajama top, it was torn, in his opinion, down the front. It was a V-neck. It was torn in the front, you know, while the person was stationary tearing it like that or as the person turned away. Isn't it interesting, ladies and gentlemen, that the Defendant has four little marks right here in a line. I suggest that you can infer from the evidence that Colette MacDonald pulled that pajama top or that she did like this (indicating) with her four fingers and ripped it down the front and it was torn in the master bedroom. That is where those cuts or scratches or punctate marks or what have you come from.
What about the blood--the Type A blood that Paul Stombaugh testified was on the paja-ma top before it was torn? You remember you heard a lot of Defendant experts say, "Well, Stombaugh is crazy. That is not a left shoulder. That is not this and that is not that." Did you hear Defendant's experts say that there wasn't Type A blood on the pajama top before it was torn? Did you hear that? Huh-uh. Don't you know if they could have had an expert here from somewhere, they would have had to have said that, because, ladies and gentle-men, the Defendant's story is that he placed the pajama top on Colette after she was dead. There is not one whit of evidence to suggest that after it was placed on Colette's body, it was then taken up and ripped.
All of the evidence suggests that however it was ripped, it was ripped before and not af-ter it was placed on top of the chest of Colette MacDonald. Well, what does that suggest to you? It suggests, ladies and gentlemen, that Colette MacDonald bled on that pajama top be-fore it was torn, in three places. If that be true--if you should find that from the evidence, I suggest she bled while she was alive and engaged in a struggle with whoever was wearing that blue pajama top before--not after--it was torn.
We asked the Defendant if he had an explanation for that, and he said not to his know-ledge. Don't you know that if he could have explained it, he would have explained it? We even know that Kimberly's AB blood type was on the pajama top. How did it get on there?
Well, we know--if you believe the Defendant's story--that on the first visit to the master bedroom--the first circuit--he took it off and put it on her body and then he went to check Kimberly and then he perhaps got Kimberly's blood on it. He did not see Kimberly until he had the pajama top off. How does the AB blood walk from Kimberly's room over here to the mas-ter bedroom and get on the pajama top? We asked him that question, and his response was, "It would be pure conjecture."
He also testified that in 1970, he did not know the blood types of his family. Oh, that he did. You know, we say there is no such thing as a perfect investigation. There is no such thing as the perfect crime.
We know that the pajama top, at least, was placed on Colette's chest. That is one thing with which the Government and the Defendant is in agreement. Why? He said that he was in a state of confusion and that perhaps he put it on there to get her warm and protect her from shock, but he wasn't sure why. He was confused. Now, I would again suggest that that is something else that we would agree with the Defendant--he was, in fact, in a state of confusion when he placed the pajama top on there.
I think that you can infer from this evidence that the reason the pajama top was placed on the top of Colette's chest was because it already had Type A blood on it and he had to have an explanation that would sound reasonable as to why that Type A blood was on it.
We know that the pocket was on the floor. I asked him about that and he said that he could think of a number of ways that it could be kicked over there and torn off when the pa-jama top was torn. Well, okay, but it is upside down and it has got A type blood coming from the outside in and it is not spatters--it is contact. How did that happen?
You recall Terry Laber's saying that in his opinion, that A type blood got on there prior to the pocket being torn off and yet it didn't bleed from the inside out, but it bled from the out-side in.
We know that Mr. Smith in the Opening Argument talked at great length and very elo-quently about how the Government couldn't tell you maybe, it couldn't tell you possibly, it couldn't tell you could have--that wasn't good enough. We had the burden of proof beyond a reasonable doubt. We had to tell you that it did. Ladies and gentlemen, we have proved--if we have proved anything to you, I submit, that this club was the murder weapon--a mur-der weapon--used to strike Colette and Kimberly. We know it had their blood type on it--Type A and AB. We know that splinters from it matched identically in three bedrooms. We know that one splinter in excess of three inches long fits identically into this piece of wood and had A type blood on it. I don't know what more we can show you about that club. That is not maybe. That is not possibly. That is not can.
We know that there was blood on the ceiling. There was an indentation in the ceiling as somebody pulled that club over to hit Colette. We know that splinters matching that club are found in Kimberly's room and that Type A blood was found about seven feet high in Kimberly's room and Type AB a little lower. We know that the club--from the evidence, I think you can infer--was used to strike Kimberly a second time in that room.
How did the threads and the yarns from the pajama top matching the blue pajama top get on Kimberly's bed on top--underneath the sheet--14 of them, I think Paul Stombaugh testi-fied--14 blue purple cotton sewing threads and at least five blue polyester yarns. The paja-ma top was already off. Now, we asked the Defendant about that, and, as I recall his testi-mony, he said, "Well, it was sticking" to his arms. We asked him if he got on the bed and he said, "No." We asked him if his arms were moist and he said that he didn't know. Was there blood on him--"Surely." If you believe that that is where they came from, fine. We suggest that they came from the blue pajama top itself as Kimberly MacDonald was carried back into that room with that torn pajama top and placed in that bed.
What about Kristen? We know that at least one thread and the splinter matching the pa-jama top and the club were found in that room. We know that Type A blood, from the evi-dence, was on the wall in a splattered direction. We know from the evidence that Type A blood was in massive direct bleeding amounts on the top sheet, but interesting, not the bot-tom. We know, ladies and gentlemen, that Colette MacDonald had no injuries on her legs, but yet there was a lot of blood--her own blood--on the pajama bottoms. How did that blood get there?
I suggest from the evidence that you can infer that it got there because the killer took this club and after Colette MacDonald went to Kristen's room, she was banged again with the club up against the wall and fell over and bled on the pajama bottoms. She didn't bleed any on the bottom sheet because something was preventing that blood from going on that bot-tom sheet--perhaps, little Kristen.
Ladies and gentlemen, we have heard a lot about fabric impressions and contact prints.
We heard Paul Stombaugh say that one print had an impression of a shoulder. You heard the Defendant say--Defendant's expert say--"That is not so." You heard the Defendant say, well, he wasn't worried about that because that evidence had been disproved. The same thing with the handprints. We disagree. We say that it has not been disproved.
How did they get there? You even heard Dr. Thornton. Don't you know that if he could have disagreed, he would have disagreed to say that one fabric impression contact print matched the right cuff of the Defendant's blue pajama top. What did the Defendant say about the bedsheet and the bedspread? To his memory, he could not recall touching or com-ing in contact with that sheet.
You recall Dr. Thornton saying, "Well, the imprint could have been made by something that weighed as much as two pounds," I think he said. Do you think that weighs two pounds by itself? Ladies and gentlemen, if you throw away the left shoulder; just throw it away--if you throw away the prints; just throw them away--which we are not going to do but suppose you do that just for the sake of argument: you have still got a massive amount of Type A blood in the center of the sheet. You have got two impressions matching Colette's pink paja-ma top--the arms. You have got MacDonald's blue cuff--the right cuff. How do you explain that? What is the explanation for that? You have also got Type O blood on the floor and footprints.
Poor Mr. Medlin--even the Defendant agrees--the left footprint was probably his. The in-truders did not go barefooted. The left footprint was exiting and not entering that room was made in Type A blood. Now, Brian Murtagh touched on that this morning. How was the foot-print made? How did the fabric impression--the contact print--get there? I submit that it is reasonable to infer from the evidence that after Colette MacDonald was banged on the bed, she came to rest on the floor because we know that in her hand, according to Dillard Brown-ing, a yarn matching the throw rug in Kristen's room was found in her hand. We know that a hair ribbon was found. We suggest that that bedspread and that blue sheet taken from the master bedroom were brought into Kristen's room. She was laid on it, and, ladies and gentle-men, she was picked up and carried back to the master bedroom and put down with her hair hitting the floor first because we know her hand--her left hand was over her hair.
We suggest that as the Defendant did that, you can infer from the evidence that he stepped, unbeknownst to him, in a blood type that was not Kristen's and made those foot-prints as he exited that room, and that is how the fabric impressions and the contact prints were made.
You recall the testimony of Paul Stombaugh and others for the Government that a hair mi-croscopically matching that of Colette MacDonald was found in the bedspread, intertwined around a thread from this pajama top or microscopically similar to this pajama top, with blood-like deposits on its shaft. I suggest that that got there at that time.
We know that pieces of latex were found and torn and some with Type A blood in the master bedroom. How did they get there? We asked the Defendant about it and he said, "Not that I can recall," "No," or "No explanation." Again, while he has no legal responsibility to explain, don't you know--don't you know that if he could have, he most certainly would have?
We know that Medlin stated that somebody wrote the word "Pig" in Type A blood on the headboard over where Colette MacDonald slept. We know that a blue thread or purple thread was found in that area matching the pajama top. We know that there is a good possibility from the evidence that those surgical gloves matched those in the house, but even if they didn't--even if you should find that they didn't--where did they come from and what were they doing there? Isn't it interesting, ladies and gentlemen, that droplets of Type B blood--that of the Defendant--is found in the kitchen near the cabinet where surgical gloves were kept. Looking at this chart, you can see that he didn't go there until number 13--drops of blood at number 13, but at number one where he was cut according to his story, there wasn't any.
He stated that he used both telephones, and I think there is evidence that at least one phone was, in fact, used--perhaps both. Both receivers were off the hook. He had no ex-planation for why there was no blood on those phones and no explanation for why, if you find from the evidence, that there was B type blood in the sink. We suggest to you that you can infer from the evidence. The Defendant, we do not contend, inflicted all of his injuries--not by any stretch. You know the contusion on his his head--remember the hairbrush in the master bedroom. I think you can infer from the evidence, ladies and gentlemen, that this De-fendant with his medical knowledge--with his medical ability--knowing that MPs would soon be on the way--very likely inflicted one--not all, but one--injury in the bathroom, and that is where the B type blood came from and that was close to the end and that is why B type blood was not found in the kitchen until number 13.
Perhaps the most telling thing of all, ladies and gentlemen, you come back to two pieces--you could throw the whole shooting match away except for two pieces of evidence. Brian will disagree with me, but I think you could just hold onto two--these two (holding up the club and pajama top). Why are they so important?
Well, you remember, he said that he hadn't seen this until April 6th, and he didn't think this was the club that he was hit with. The club, the knives, and the ice pick were outside the door. He didn't go outside the door, but he went to it. They had A and AB blood on it and some threads which matched--or some yarns which matched the throw rug in the master bedroom. They had two little purple threads on them matching identically in composition with these (indicating). This sounds sort of minor, really, until you think about something. How did they get there? If he never touched them, if he never saw them, if the pajama top was not taken off of his body in the hall or the living room until this club was out the door, how in the name of all that is reasonable did they walk out the door and get on the club and stick to it? I suggest from the evidence that there is an explanation and that is that this club was not outside the back door until after--not before--that pajama top dropped threads and yarns and blood to the floor, and as it fell on the floor, it picked up the threads and picked up the yarns with the blood and it was thrown out the door. I suggest that you can infer from the evidence as to how it got there.
Of course, the Defendant made a lot about his pajama bottoms which he said were torn. Well, of course, we don't know what the known was for the pajama bottoms. If they were torn, how did they get torn? There is no indication that the intruders hit him below the waist, that they were torn below the waist by the intruders. And if they were, why didn't they drop some threads in the living room? Why didn't they drop some threads in the kitch-en? Why didn't they drop some threads in the hall? Why didn't they drop some threads in the bathroom or the utility room? Isn't it interesting that they don't drop threads where the pajama top dropped threads?
Ladies and gentlemen, I have talked to you a long time about all this type of evidence in the story. What does it all mean? How could this have happened? We know from the evi-dence that the Defendant, as we have said before, was a good doctor. We know that his family loved him. We know that from the Valentine cards. We know that from the card that he read from the witness stand shortly before the end of direct examination that Colette loved him very much.
I suggest to you, of course, that what the Defense tried to do was to prove the Defen-dant's love and character through Colette and not from himself. We know that the Defen-dant had been unfaithful in his marriage. We know from the evidence that he had worked the weekend before; he was perhaps tired.
We know from the evidence that there was a--maybe it is a minor problem--the problem of Kristen coming to the bed. We know that he, according to his story, went to bed late that night and found that the bed was wet. I am not by any stretch of the imagination sug-gesting that the slaughter took place over any one thing. I don't think so, but I think that you can infer from the evidence that a fight developed in the master bedroom between Co-lette and the Defendant--a struggle--an altercation. We know that Colette was bruised--perhaps she was struck.
You know those words--you heard them in Wade Smith's Opening Argument--"Daddy, Dad-dy, Daddy, Daddy." I believe those words were said, but not from fear of intruders, but I think that you can infer from the evidence that they were said as Kimberly came to the mas-ter bedroom to find out what was going on from her father and mother. We know that she was there. We know from the evidence that her blood was found on the sheet, on the floor, and in the hall--or at least her blood type. I suggest that you can find from the evidence that it was her blood.
We suggest, perhaps, that Colette MacDonald, in an attempt to save herself or to fight back, got the old dull Geneva Forge knife that perhaps struck the Defendant that was sitting around for what purpose we don't know. We know from Dr. Gammel that Colette MacDonald had a bruise in this area of the chest (indicating). I suggest that the Defendant, perhaps in a frenzy, perhaps mad, perhaps disgusted, perhaps exhausted, perhaps tired, he knew that he was going to be away for 30 days in March, if he could, while his wife was six or seven months pregnant--maybe to fend off his wife, he hit like that; but I think you can infer from the evidence, ladies and gentlemen, that the Defendant in one tragic, brief moment--so brief--lost control and came back with that club, and as he did, he struck Kimberly and struck his wife--perhaps not originally trying to hit Kimberly--perhaps she walked into the club.
At that point, ladies and gentlemen, the future is at stake. It may be too late at that point to undo that which is done. You know how hard it is to un-ring the bell. You know the words, "Jeff, Jeff, Jeff, why are they doing this to me?" Think how close that is to, "Jeff, Jeff, Jeff, why are you doing this to me?"
You remember Pamela Kalin, who said that she didn't hear anything that night? You re-member Pamela Kalin and Mildred Kassab who said that they did not smile as much as they used to, but she still gave Colette some money because all money problems weren't over.
After Kimberly was struck, we suggest that you can find from the evidence that Kimberly was picked up and carried back to her room and struck with this club again and that Colette, because we know that Dr. Gammel said that she would not have died from these club injuries, went to protect or see what was happening to Kristen, and while she was in there, Kristen had the misfortune to see or know what was going on and Colette was struck again and car-ried back to the master bedroom.
Then, of course, again, ladies and gentlemen, you must understand that I think you can find from the evidence, again, things had simply gone beyond repair. You can't go back and make the family happy again, drink liqueur, and watch Johnny Carson. It has gone too far.
An Old Hickory paring knife, we suggest, was located. While there is no direct evidence that that knife came from that house, there is evidence that that was a common knife around Fort Bragg and that the MacDonalds had paring knives and that that knife was taken and Colette MacDonald was stabbed 16 times and Kimberly was stabbed in the neck at least eight to ten times.
I think that you can infer from the evidence that--you know, you remember the Esquire magazine and the words in it--the Manson-type murders and the multiplicity of weapons equaling the multiplicity of people. An ice pick was obtained--you know from Mildred Kassab and Pamela Kalin that they had seen an ice pick at the MacDonald residence, and even though the Defendant said he did not recognize it, we suggest that it was there and that you could find that from the evidence. That was taken, and Kristen was stabbed superficially with the ice pick after she had already been stabbed with the knife.
You remember the testimony of Paul Connolly, who said that the Defendant became incon-sistent and confused when he talked about Kristen. Kristen was so hard to talk about. Per-haps that was because it was the most cold to do--a defenseless little girl. Kimberly and Co-lette had perhaps been struck while angered, but not Kristen. Well, you know, I said there wasn't a perfect murder. The pajama top was probably already on Colette's chest. I think you can find from the evidence that the Defendant forgot it was there and made that terrible mistake of stabbing Colette with the ice pick through that blue pajama top and that is how those holes got there.
He didn't know at that time that four years later, Shirley Green with the FBI would figure out that 48 can match 21. You remember the Defendant said that Thornton said that was worthless because she didn't know whether they were entry or exit holes; yet, on cross-examination, you recall that he said that he read from the FBI report of Paul Stombaugh who said that when he got the pajama top, it was a year and a half later and he couldn't be sure whether any of the holes were exit and entry holes.
I suggest to you that there is only two explanations for how the pajama top got the holes in it--either his story or our story. I suggest that they got there one or the other, and I suggest that the evidence shows to you that they got there our way.
I believe the weapons--the Old Hickory and the ice pick--you could find from the evidence were wiped off on the bathmat. Do irrational and irresponsible drug-crazed people wipe off weapons and throw them outside to be found by investigators? Why did he say that the Ge-neva Forge knife was pulled out of the chest of Colette, even though Paul Stombaugh testi-fied that in his opinion, that knife was dull and did not make any of the cuts in the clothing? Remember, he said, "Don't forget that I pulled the knife out of her chest." I suggest that you could find from the evidence that he did that because he didn't know what was on that knife and he had to have an explanation for it as to why it was where it was--he forgot to throw that one out.
I suggest that the Geneva Forge knife didn't kill anybody. If he pulled it out of her chest, why does the evidence for the Government suggest that there was no significant amounts of blood on that knife? Perhaps because it didn't go in that chest--it nicked the Defendant's arm.
I believe that the surgical gloves were then taken--I think you can find from the evidence
--and used to write the word "Pig" on the headboard. The self-infliction of one injury was made, the story was concocted, the MPs were called, and he laid down next to his wife to wait for help. That help came and this confusion began as they tried to get him to the hos-pital. Who created so much of that confusion? Who created the red herring of going to look for the intruders? We suggest that you can find from the evidence that the Defendant did.
Ladies and gentlemen, we have not presented an emotional case. We have presented a reasonable and sometimes boring, tedious, and logical case. We have given you the explana-tion that we believe to be true for how all this got where it did and what it means.
You know, the Defendant had a lot of nice character tesimony, and I am sure that each of you, if you were accused of a crime, would have the same. Don't ever forget that perhaps the greatest crime of all was committed 2,000 years ago. And the night before Christ was betrayed, Judas Iscariot would have had 12 of the best character witnesses this world has ever known to have said he couldn't have done it, but you know that he did.
Ladies and gentlemen, if in the future after this case is over, if in your jury deliberations, you should think again of this case, I ask you to think and remember Colette, Kimberly and Kristen. They would have liked to have been here. They have been dead for almost ten years. That is right now around 3,400 or 3,500 days and nights that you have had and I have had and the Defendant has had that they haven't. They would have liked to have had that. If in the future, you should cry a tear, cry one for them. If in the future, you should say a prayer, say one for them. If in the future, you should light a candle, light one for them.
We ask for nothing in the name of persecution. We ask for nothing in the name of harass-ment. We ask for nothing in the name of what is wrong--nothing--but God, we ask for eve-rything in the name of what is right and in the name of what is just. That is why we are here. We ask for everything in the name of truth. We ask you, ladies and gentlemen, that this horribly tragic and horribly sad as it is because you know that you have seen Mrs. Kassab and you have seen Mrs. MacDonald and it is sad for both of them--both of them were grand-mothers, not just one--it is sad for the Defendant--but it is sad most of all for those who paid the highest price of all, with their lives. And we ask you, ladies and gentlemen, to return a verdict of guilty as to clubbing and stabbing Colette, guilty of clubbing and stabbing Kim-berly, and guilty perhaps most of all for stabbing little Kristen.
You remember--I am sure you have heard it many times--part of the 13th chapter of Ec-clesiastes--"There is a time for everything under the heavens--a time to be born and a time to die." Surely, God did not intend on the 17th of February, 1970, for Colette, Kimberly and Kristen MacDonald to die. It is time, ladies and gentlemen, it is so late in the day, it is time that someone speak for justice and truth and return a verdict of guilty against this man. I ask this jury to make what I know to be a very courageous decision that he did it and we are sorry, but he did it. Thank you.
THE COURT: Will there be a speech for the Defendant at this time?
MR. SEGAL: If Your Honor pleases, we would request that the Defendant's speech begin af-ter luncheon recess.
THE COURT: Well, I think this makes a logical point in the presentation of the arguments in which we could take a break, and since we started a little early this morning, suppose we let's take out for lunch a little early and come back today if you will, please, members of the jury, at 1:00 o'clock instead of our usual hour. While you are out, of course, you have only heard the Government's Opening Arguments in the case. You have yet to hear the argu-ments of the Defendant, and, of course, finally, you have to hear the instructions of the Court as to the law applicable to the evidence which you have heard. Don't talk about the case among yourselves or with others. Continue to keep open minds about it. Come back today at 1:00 o'clock today if you will, please. We will let the jury retire. Everybody else will remain seated.
(Jury exits at 11:49 a.m.)
THE COURT: Let me see counsel right here. I have something for you after the recess is taken. You may take a recess now until 1:00 p.m.
(The proceeding was recessed at 11:50 a.m., to resume at 1:00 p.m., this same day.)
F U R T H E R P R O C E E D I N G S 1:00 p.m.
(The following proceedings were held in the presence of the jury and alternates.)
THE COURT: Good afternoon, ladies and gentlemen. Now, the jury is with the Defendant for his arguments.
C L O S I N G A R G U M E N T
MR. SEGAL: With submission to Your Honor. Yes, ladies and gentlemen of the jury, there has been a tragedy, but we haven't talked about the real tragedy in this case yet.
You did not witness the tragedy of February 17th, 1970. You have only heard about it vi-cariously and absorbed some of the pain of the destruction of a loving family. You did not witness--only heard about vicariously--the destruction for the first time of the life that Jeff-rey MacDonald had built when in 1970, he was charged the first time with the crime in this case. You only learned about that in a second-hand fashion.
You also have not seen or experienced the second tragedy in Jeffrey MacDonald's life--the grand jury in 1974 and '75--again, you have only learned of that vicariously. You have heard about the destruction of the life that a man tried to rebuild again.
The tragedy that you have experienced, though, in this case is the tragedy of the legal system that said nine and a half years after the monstrous murders of Colette, Kimberly, and Kristen MacDonald that for the second time, using the exact same physical evidence--that for the second time, somehow the legal system permits this to happen. That tragedy, you have experienced personally. You have sat here the better part of seven weeks and listened to the story of the same fibers, the same threads, the same blood spots, the same crime scene, same bungling, same ineptitude with one or two notable additions. I will devote some time to talking with you about those additions.
How is this tragedy going to resolve? That is the task that befalls you collectively as the jury in this case. You will write the final chapter on the one tragedy that you were exposed to and permitted to experience.
Who is it that is talking to you about either that tragedy or the destruction of the family or the destruction of Jeff's life? Who are the people we are talking about? Let me say to you that I and my colleague and friend, Wade Smith, are the advocates and the representa-tives of Jeffrey MacDonald. We make no bones about it that our role in this case is to pres-ent his side of the events and the episodes that took place. We make no bones about the fact that he has placed in our hands the responsibility for his future, but I also want to iden-tify to you who are the other persons who have been talking to you about the facts in this case.
They are the prosecution attorneys. Now, they are not people riding on a white horse and shining armor. They are not non-partisans. They are merely the lawyers on the other side. They are no different than Wade Smith and I. They have an interest like I have an interest to represent in this case. They have a side to represent. It is not like they are above the fray looking down upon this and then in a non-partisan way with no motive to do any harm to anyone coming down here and sharing their views of the evidence you see.
That is not true at all. They are hired for the specific purpose of pushing someone's point of view. Who is that? In this particular case, it is the viewpoint that the CID has doggedly, stubbornly, and erroneously adhered to for nine and a half years. As a matter of fact, if they did not advocate that view, if they did not represent a side, they would probably be replaced because that is their job. They are not here as non-partisans. They are not here as inde-pendent souls looking at this matter. They represent a side. They have egos, too. They have ambitions. They would like recognition also. They would like their superiors and others to recognize their success in this case or in any other case, promotion, outside opportunity. They are exactly like Wade and myself. They are no different.
So, as I talk to you in the succeeding time that is available to me, I trust you will recog-nize that I am the spokesperson for Jeffrey MacDonald, but I am not less; and when Wade speaks to you later on, he is not less than any of the Government's attorneys. They have no special hold on what is fact and what is correct inference and certainly not on what is truth.
I thought I would remember something from the beginning of this case when one of the Government's attorneys in opening remarks to you made some statements that I found con-founding at the time and I believe were dubious as to his ability to do it, and I now suggest to you that I will share them with you. "This is not a complicated case. It is a straightfor-ward case." I just heard him about an hour ago--conclusion of his case--having spent seven and a half weeks to try to make sense out of a case and to tell you about how complicated it is, but you have to pay attention to the moving fibers and floating blood and the fingerprints that can't be lifted and identified.
Now, how are you to choose? How are you to ultimately decide in this case? Is it simply, you know, one side or the other? I suspect that you are all a bit more sophisticated than that. I think you know enough about the jury system, but I impose upon you now a moment to let me share some thoughts with you.
You have not been brought here--you have not gone through the process of jury selection for the purpose of just being 12 people to sit down in the jury room after we finish talking with you and decide what you think about this case. This is not a group think process. This is not sort of a discussion around coffee after dinner. This is something very different.
A jury is a unique institution. A jury is a special enterprise, and it works according to spe-cial rules. Now, eventually, the rules of this process will be given to you by His Honor, Judge Dupree. I feel that there is no way one could talk intelligently about the facts as I see them without sharing some of those rules with you now. I say as a warning to that, of course, that ultimately if anything I say is different from what Judge Dupree says about the rules of law, obviously, his is the only word you will follow. But I will try to be as accurate and cor-rect as I can because I am talking about some concepts and rules that are absolutely funda-mental to the system, and I do not think I will mis-state them.
There are five rules that you will take with you to the jury room. By your ability to apply those five rules, you will be functioning as a jury as opposed to a coffee klatch. You will be functioning in the purpose that you were asked to be here for rather than simply as 12 per-sons giving their ad hoc individual opinions.
These are among the most fundamental of the number of rules that the Judge will give you at the conclusion of the case. I point to them because they start and end with the differ-ences, I think, between what I have to say to you, what Wade has to say to you, and what the Government has to say to you.
The first of these five special rules that will dominate, I think, your thinking in the jury room is the rule that says the Defendant has a presumption of innocence that protects him from the beginning of the case until the very end of the deliberations; but again, I suspect this is not a phrase that you are hearing for the first time here in this courtroom, but I would like to share with you for a moment, I think, a correct observation as to why our system has the presumption of innocence.
We all too frequently take the system that we cherish and fight for and that we hope to preserve, we sometimes take it rather for granted and do not consider why the elements ex-ist. The presumption of innocence is something that exists only in a criminal case. It does not exist in a civil case. The reason for that is that there is an inherent fundamental imbal-ance in a criminal case which no Defendant can ever correct. That imbalance is this: On one side of the criminal case are the prosecutors. They are not the Government. They are the prosecutors who use the power of the Government on their behalf of their clients--their in-terest in this case. I dare say that it is obvious to comment that there is no individual De-fendant, let alone Jeffrey MacDonald, there is no individual Defendant that you or I could conceive of whose power ever would equal that of the Government. The founders of our na-tion and the creators of our legal system recognized it from the outset. And in order to cre-ate the inherent and fundamental imbalance in the system, you are never, when you are ac-cused by the Government through the hands of prosecutors, even that you are never in the same position they are as in a civil case--two parties trying to tip the scales of justice one way or the other--but because we recognize that and we have recognized it for more than 200 years, we do something that we hope if you, the jury, will apply correctly, it will do something to partially correct the imbalance in the system. That is to give the Defendant a head start. Now, the example which we frequently talk about in civil cases is that the scales of justice start evenly balanced. Each side adds evidence to the scales and when it is tipped--the case one way or the other by a slight amount--that is the side that should re-ceive the verdict. But because in a criminal case, we know that no individual Defendant has the power and the opportunity and the resources in any way to equal the Government, the founders of our nation, the creators of our legal system say this: the scales tip this way. The Defendant has the advantage here and the Government must, in order to obtain a con-viction, take that advantage from the Defendant and tip the scales all the way the other way by a quantum of proof and an amount of proof, I will talk about in a minute.
Let me give you an example of why the presumption of innocence and how it really works. It is a very simple example. You saw one of the people who have been helping Wade and myself the other day--John Myers. He was the short gentleman--the last witness we called.
He is an investigator. John Myers is only illustrative of what happens in any case. I don't care whether it is Henry Ford or Jeffrey MacDonald, the same thing will happen. If we send John Myers out to find a piece of information and he goes to someone's door and says, "I am an investigator working and trying to help Jeffrey MacDonald. Can I get some information?" The person says, "I don't want to talk to you. I don't want to be involved." You all know that expression. You all know that people feel that way. Probably after watching what has happened to some of the people who walked into here, you know why people don't want to be involved.
Don't want to be involved--closed the door. What can John Myers do? What can I do?
What can Wade do? Nothing. We have no ability to tell anybody, "You have to in the name of good sense and justice talk to us. It is fair." Now, take the reverse. Take the worst CID agent you saw, the most inexperienced MP investigator, the newest FBI agent and you send him knocking on a door. He says, "I would like to talk to you about the MacDonald case." "I don't want to talk to you." "I am an agent of the FBI, CID, MP."
What is going to happen when you tell somebody, "I am the representative of the Govern-ment's criminal prosecution process"? What happens is that you will think, "Gee, if I don't co-operate, what are they going to do--take me downtown? Is someone going to call my em-ployer and tell him that this is the Government and your man will not cooperate? Are they going to look at my tax returns, perhaps?" I don't know if that is real, but they are the sus-picions that we all have.
MR. BLACKBURN: Your Honor, we would OBJECT to this.
MR. MURTAGH: Your Honor, we would OBJECT to this.
THE COURT: Well, I will just instruct counsel for both sides to confine your argument to the evidence that has been offered and received in open court. Go ahead.
MR. SEGAL: When that investigator speaks on behalf of the Government, he invokes powers that no person would like to challenge and the doors open to him and information flows. There is no question about it.
One last observation on the presumption of innocence. What Defendant that you know of, let alone Jeffrey MacDonald, could afford to spend the way the Government can to prove a case--to prove a point. I dare say that we are weighted down with charts in this case to an astonishing degree. One could only wonder how deeply the Government goes to make points over and over again. What possible benefit could there be to showing the same pho-tograph four times over? Who could look to his pocketbook and could afford that kind of de-fense? Because of all of those reasons, because of the inherent imbalance, the founders of the system said: you, when you go out as jurors, start with the idea, with the piece of infor-mation, with the rule of law that says you will presume not only Jeffrey MacDonald but every Defendant innocent of the crimes charged.
What is the second rule of law? How can the Government change that situation? Obvi-ously, there are cases where they can and will, but again, there are rules that guide you and tell you how that is to be done--tells them how it is to be done--and lets you know whether it has been done.
That rule is called the burden of proof. The burden of proof in a criminal case, again, is different that a civil case. I know the Government has talked about it, but I have some things to say about what they have commented upon. I don't believe they have adequately or fairly stated what I think are the applicable rules of law. Again, it is not my opinion what the law counts and it is not their opinion; it is what the Judge tells you. But I think that I want to share with you something now that is worthwhile to be considered about the second rule.
The second rule is that the burden of proof in a criminal case rests from the beginning of the case to the end of the case strictly on this table--on these men--on these prosecutors--and contrary to all of the words that you have heard this morning, it never, never, never shifts to the Defendant. It is absolute nonsense for the Government to have stood here this morning and piously, you know, give proper obeisance in the direction of the rules of law say, "Yes, we the Government lawyers--we recognize that there is a rule called the burden of proof on us," and then to ignore it by going on and on arguing what--"Why doesn't Jeff ex-plain this? Why doesn't Jeff explain that? Why don't we know this from Jeff? Why did Jeff do that?" Nothing that Jeffrey MacDonald does is right. It is all wrong. What is happening when they start talking like that about the burden in this case?
The law does not permit, the law does not countenance the burden ever leaving the re-sponsibilities of the prosecuting lawyers. Every single thing that you have heard this morning about, "Why doesn't Jeff explain this," and I thought the most incredible of those remarks be-ing, "If he had an explanation, you could be sure he would have put it before you," is in my judgment contrary to the law, and I suggest that you listen carefully to what His Honor's in-structions are on that. That is simply not the law that I understand it to be applicable in the United States. No Defendant has to explain it away.
It is like some of the questions the Government lawyers asked some of the witnesses at times. It brought a chuckle from many members of the jury. Many members of the audience felt the same way. "Well, did something happen?" The witness said, "I don't know what hap-pened." "Well, then, you don't know that it didn't happen?" "I don't know that it didn't hap-pen." What does that prove? I mean, Jeffrey MacDonald, in the guise of questioning the other day, was asked, "Well, can you explain"--what--"all of our theories of the case about this fiber and that hair; you can't, can you," and then they stand up here and argue in the face of the law, contrary to what the law says, that he should have explained it away. That is not so, I submit to you, and I suggest that you follow what the Judge tells you in this case rather than anything I said, and most assuredly, nothing you have heard from counsel over here.
What is the third rule that makes and guides your deliberations? It is the rule that has to do with the amount of proof--the quantity that you have to see. From whom? From this ta-ble, from these lawyers, and that rule says that the quantity of proof must be beyond a rea-sonable doubt.
Now, those are not just words. It is what separates people around a coffee table from a jury. You have got a responsibility. The law imposes that upon you. You know that you are going to accept it. The question is whether you are getting the proper guidance. What does it mean when we tell you that as the third of these major rules, the case must be proven to you by this table beyond a reasonable doubt? There are lots of examples--there are lots of examples.
I guess one that I have heard so many times and which I think is sufficiently clear in my own mind and that I can perhaps re-state it without botching it up is the one that says, "Now, how do you know what is a reasonable doubt in a case?" Take a matter of some im-portance in your own life--something of a really serious decision. Are you going to leave North Carolina and transport your family and move to some other part of the country and start a new life, start a new job, leave a career that you have engaged in for a long time and which you have much invested in it, start a new career--going to make some important deci-sion--not little things we are talking about but something which has real serious meaning to you.
If, when you have all of the facts in front of you that relate to this decision, you are hesi-tant to go ahead with that decision, the law would say to you that the name we put upon that hesitation--the hesitation to act when you have got all the data--is the reasonable doubt that we are talking about. In other words, put as lawyers put it, it is probably incom-prehensible--needlessly so.
If in a matter of importance in your own lives, having the data in front of you, you hesi-tate to act, you then hold a reasonable doubt. When you hold a reasonable doubt, that means one thing and one thing only--that the accused, the Defendant, Jeffrey MacDonald, if you hold a reasonable doubt, must be acquitted. That is what the law commands you. That is the third of these five principles.
Now, what kind of proof and how are you to weigh the kind of proof the Government has offered, which must be beyond a reasonable doubt in this case? It is circumstantial evi-dence. It is the indirect kind. Circumstantial evidence should not be less clear than direct evidence. It should not be more obscure and more difficult to follow. It ought to point cor-rectly and clearly to the conclusions as argued by the side that offers it. It ought to point in a way in which when you would hear it, you would say to yourself, "I do not hesitate. This is a matter of importance right now. I do not hesitate on these facts or on the conclusions that they want me to draw from it. These facts don't allow any hesitation and doubt. I do not have a reasonable doubt. I must convict." That is what circumstantial evidence is.
It says that it has got to be clear enough for you to figure out that it really does stand for proof beyond a reasonable doubt on that subject. It is the indirect evidence and you have heard all about that, but do not for a moment consider the idea that because someone has called it circumstantial evidence, that therefore, you are allowed to be confused by it, and therefore say, "Well, I will accept some lesser amount--some lesser quality of this proof be-cause they have called it circumstantial evidence." That is not the law.
His Honor will define circumstantial evidence for you. It is, of course, acceptable. Nobody is quarreling about that. There is no challenge to circumstantial evidence. It is useful, but it has to point in a way with clarity to the inference, the conclusion that those lawyers for that side want you to draw from it, and if it does not, they have not met that standard. They have not met the proof beyond a reasonable doubt.
Now, the last thing that I want to say about the five rules--I know that I have taken a bit of time, but you cannot discuss that case without knowing how you are supposed to measure it. What is the standard? The last one, I have already alluded to and I am going to state it very briefly and say to you that that fifth rule that you take to the jury room is that the bur-den of proof does not shift to the Defendant.
He does not have to prove anything. You will also be told that the Defendant does not even have to testify. He could sit here with arms folded and say, "Go ahead, Government. Under our system of law, you have to prove it, and if you don't, I am entitled to get up and say to the jury that they have fallen on their faces, and I am entitled to an acquittal." He has done more than that in this case--far more than that--but by the act of going ahead and putting on evidence, that does not change anything and that is what the Government's law-yers are arguing this morning, that because MacDonald--Jeffrey MacDonald--he has assumed some burden.
The Government has had a theme that I find needs to be commented on quite early in this case. They keep talking about what the physical evidence says in this case and that is what it all is. It is how they have arranged to interpret and understand the physical evidence. The Government says, "Physical evidence doesn't lie." They said that in the beginning. They say it now. I want to tell you something else. Physical evidence doesn't say a darn thing.
Physical evidence lies there. The fibers lie there. Everything lies there. The only thing that is speaking is not the physical evidence, but it is the interpreter speaking. Who is the inter-preter of the evidence for you? The non-partisan, the fellow on the white horse and the shining armor? Not at all. It is my adversary--my opponent on the other side.
Physical evidence does not say anything to you. The physical evidence in this case is subject to their views, as I submit, and is subject to my views. I will suggest to you that we will go through those views as I see this evidence and submit to you that there is a more log-ical and reasonable and understandable way of seeing this evidence that clearly and under no situation has the Government seen this evidence for you and interpreted it for you in a way that one could conclude beyond a reasonable doubt.
We have waited here seven weeks and then in the final minutes of the three-hour opening address this morning to learn what the Government's interpretation of this evidence is. Their interpretation, I say to you, defies the logic, defies what the facts that you know in this case is, defies any reasonable acceptance of their position. And that is that somehow Jeff MacDonald took this club, pushed it in his wife's belly, swung it a la baseball bat, clubbed Kimberly, killed his wife, struck his wife, and moved the bodies. I dare say that not one mem-ber of this audience, least of all myself, could repeat to you right this minute in correct fash-ion the sequence and order of all the events the Government said happened.
They have not succeeded in telling you a coherent, a logical explanation for these events, which is what their burden is in this case from start to finish; and certainly, they have not done any of that beyond a reasonable doubt.
What is this case really about? The case is about what happened to people. Knives don't kill by themselves anyway. Ice picks don't attack people by themselves anyway. Clubs and any other weapons do not function by themselves. They function because there are human beings who have motives, who have reasons. We ought to be able to see those factors right here in front of us in this courtroom. Heaven knows, after seven weeks, there has been enough time. After nine and a half years, there has been enough time to be able to explain what people did in this case.
The Government, instead of talking about people, have castigated me because I asked Jeff about his life--about the human being. Well, I thought that if you were going to believe that he did it, you are going to have to believe that this man was capable of some monstrous acts. I get faulted for that, too.
The Government insists that what you ought to do is take the fibers in one room, twist them all together into a thread, and they will hang this entire case by that thread. It is ab-solutely beyond me as to where a jury who has heard this same evidence could conclude that they have done anything except continue to twist the fibers around and leave them lying all over the place going in every direction and many, many different conclusions.
Now, one of the things about the physical evidence, of course, is the fact that none of it is new. I said that earlier and I come back to it now. It has been in this case from day one. It has been in this case from the first efforts of the CID to try and understand this case, but what happened to this physical evidence? The Government shuts its eyes, puts its head in the sand collectively, and avoids looking at the reality. Much fun, apparently, has been made by the Government about the idea that we have been roundly and severely critical of the crime scene and the crime scene process.
We did offer you the testimony of Professor James Osterburg, a Professor of Criminal Jus-tice at the University of Illinois, Chairman of the Department of the University of Indiana, Chairman of the Department for 20 years in New York City, Homicide Detective, Crime Scene Processor, author of books on the basic elements of criminal investigation. There was no re-buttal. There was no response. There was no criticism and no debate that what he said is, in fact, a correct statement of the responsibility for a criminal investigation.
Now, I want to say right now that you have never heard me or Wade say or anybody has been able to hear us say that what we demanded was some perfect investigation. This case has never been a question of whether perfection was achieved. Heaven only knows, what we asked for is competency because, as Professor Osterburg told us, as all investigative manuals tell us, not because they are some truth and that the real world is a different truth, but because what they tried to capture is the essence of good criminal investigation. What they tell us is that crime scenes have to be processed in a certain way if we are able to play detective and draw inferences and conclusions from the crime scene.
What is the purpose of going there? What is the purpose of collecting hundreds and hun-dreds of vials--none of which all have been opened here--none of which anybody actually dealt with, but we just talked about them in abstract--what is the purpose of all that?
Professor Osterburg tells us, "If you are going to solve a crime or if you are at least going to preserve the information as to how it happened or perhaps find the information of who did it, there are certain fundamental steps." The first thing you do is to protect the crime scene.
Yes, of course, as Professor Osterburg said, "Primarily, if you find a living human being, you, of course, must save that at the price of letting physical evidence be destroyed or dam-aged."
The Government would have you believe that its life-saving efforts, consisting of one man, Kenneth Mica, giving mouth-to-mouth resuscitation, that that justifies the multitude of peo-ple marching through this crime scene for hours and hours afterwards--the multitude of acts which I will cover one by one with you which unalterably and forever prevented this crime scene from serving as the basis for all of the invention and hypothesis and invention of the-ories and speculation by Government counsel.
Now, after they process it, what do we know the basic, ordinary criminal investigation re-quired? Remember, we are not talking--we never asked Professor Osterburg what is a per-fect investigation or even what is an outstanding investigation. Let's go beyond that. You need to process it fully and carefully to uncover the trace element clues that area available there. I will talk about that aspect also further, but let me just lay it out for you, if I may, the beginning.
What are the things that need to be done if the Government is to be allowed to do any-thing with the physical evidence, let alone tell you that they have established a theory be-yond a reasonable doubt?
The third thing is that you photograph the findings. Why? Because the scene can obvi-ously not stay that way forever, and you want to be able to think and reason and study and be able to draw inferences and conclusions later on.
You know what the photographing was like--the Dempsey Dumpsters--that will always stay forever, in at least my mind, as to why the photographs didn't really come out right.
Somebody got sick, somebody didn't have enough flashbulbs, and then the Dempsey Dump-sters, one of the critical things like fingerprints, critical matters like the blood spots which we cannot, of course, today see in our own courtroom here in clarity and detail to draw infer-ences from.
The fourth thing that Professer Osterburg points out is that after you have got preserva-tion of the crime scene, where you have got your processes of fully and carefully being pho-tographed, then you do scientific evaluations, and of the photos, you draw conclusions from it. I want to submit to you that the evidence clearly supports the conclusion in this case that the CID failed abysmally to do that. They failed on every one of those scores. Since 1970, the same prosecution ideas have existed trying to make the crime scene work where it cannot work. It cannot support inferences. It is a house built upon the sand of a chaotic and disorganized investigation.
Why did it happen? I am not in the business here of coming to condemn the CID or any-one else. They did a job. Their witnesses were here and weren't even cross-examined by Defense counsel. Neither Wade nor I asked any questions of witnesses whose testimony seemed straightforward and who seemed competent for what they did. I do not apologize. I don't think any Defense counsel has to apologize for being hard and being critical of incompe-tence which then is used in justifying to say, "But regardless of all the mistakes we did which altered the crime scene, we are allowed to make deductions and inferences." If we have learned anything from this trial about criminal investigations, it is that you can't do that. An investigator who purports to do that deserves not only my criticisms and condemnations but everyone else who has heard that person.
Now, who were the persons at the crime scene? The MPs at this crime scene, in my judg-ment, and I think that it is fair inference of the jury to draw the same conclusions, that they were young, were inexperienced, were not professionals in law enforcement. You only saw, by the way, two of them--Tevere and Mica. Mica had become a Specialist at that time and he had had college training before then, but all we are saying to you is that the first men on the scene were young and immature. They acted, I think, as sensibly as they could.
Thereafter, they were followed by what seems to be innumerable MPs, but yet, we are able to piece together from the evidence of this case about 15 MPs. I am going to show that to you in a minute. What happened there? Because of their youth and inexperience, they also lacked leadership. Who was in charge here? I mean, nothing could point out better the question of the inexperience of these investigators--these MPs, rather.
You remember the episode when they first arrived at the front door of 544 Castle Drive and they found the door locked. They called back to headquarters and said, "Can we break in?" The cool voice of an experienced person--a sergeant back at the desk--said, "Try the back door." That is a good idea. Why didn't they do it? Not because they are bad people, but they just did not know what they were up to. We accept that as a reality. What is un-real is that the Government is attempting to build its house upon the sand of such inexperi-ence.
Finally, they get in. Who is in charge here now? Who is in charge here is somebody called Lieutenant Paulk. I don't remember Lieutenant Paulk's face. I do not remember his voice.
The man in charge of the crime scene has never, never appeared here. Without his leader-ship, without anybody's leadership, what did the MPs do? Go to the house. Tevere has his pistol out--his revolver out--his pistol. He has his pistol out and goes down the hall and Mica is behind him. Why? Because they reasonably think there might be somebody else there.
What are they looking for at the end of the hallway and down near the living room? Are they looking for threads and fibers? Of course not. They are looking for suspects. Is that the right thing to do? Of course, it is sensible to do. Is it the right thing to therefore conclude later on that there could have been no fibers moved or disturbed or caught on boots or wet shoes marching and coming out to the grass, to the lawn, to the front steps? Is it wrong to conclude that? Of course, that is the wrong conclusion.
There was nothing wrong with what they were doing, though. They were looking for, first of all, possible suspects who were in the house. They go down through the hallway and to the head of the living room and look around and go back. Now, they find for the first time what has happened. Dr. MacDonald has moved--remember, Mica has said that the first time, they thought the man and woman were both dead--MacDonald is lying face down on the wo-man. That is the first time.
Let's leave that for a minute, but we will come back. I want to just talk about who were the people that were there. As a matter of fact, let's do it right this minute if you will bear with me. I want to suggest to you that based upon the evidence of the case, you ought to conclude that the following individuals have been identified as having been at the crime scene and have been through some or all parts of it.
Let's deal, first of all, with the MPs--Tevere and Mica--the only two MPs you saw--the only two MPs you heard from. I suggest to you that the rest of the names that I will call out to you are names that various persons testified remember seeing people there--Hagney, Caldwell, D'Amore, Selvey, Stokes, Duffy, Dickerson, and Morris--one, two, three, four, five, six, seven, eight, nine, ten--enlisted persons.
Who else was there? Lieutenant Paulk, the officer in charge. Who else shows up at the crime scene before any CID agent? We don't know their names--two ambulance drivers. We now have a dozen people at the crime scene. Then, we have Dr. Neal. The Government did not choose to call Dr. Neal and it became, I am sure, unalterably clear to you yesterday when you heard him why they didn't call him, as he described one of the other major changes in the crime scene--the movement of the bodies of the deceased persons. These persons were at the crime scene earlier.
Who else arrived at the crime scene? A warrant officer--Chief Warrant Officer Grebner. Have you noticed his absence--his name, Franz Joseph Grebner, heard over and over again.
Who was in charge here? Mr. Ivory said, "I am only the lead investigator." Who was in charge here? "That is Grebner." Where was Grebner? Why did we not see him or hear from him--the lead investigator--the man in charge of the most important homicide investigation the Army had at the time--where was he?
Who else shows up? The overall Chief of Police at Fort Bragg--Colonel Kriwanek. Who else shows up? Major Parsons--his assistant. My best recollection of the evidence--and you, the members of the jury, have to draw your own conclusion--is that, if we take the word of Mr. Ivory, that just about everybody in sight was huddled in the corner of the living room or standing outside guarding the front steps or the back steps. The answer is that when Ivory arrived at the scene, there were any substantial number of MPs who had been there before him. There were two ambulance drivers who were there before him because when Ivory arrived, he saw the ambulance drivers taking out Dr. MacDonald through the living room.
Now, what is the effect of all of this? What are we talking about? Why are we making such a point of this? Because, if you can recall, one of the major arguments of the Govern-ment is that we don't find fibers here in the living room. First of all, I submit to you that Dr. MacDonald has never said that he remembers hearing a ripping sound of his pajama top.
What he has said, and you have heard his testimony and you have it before you is this: his pajama top was grabbed and it was pulled over him as best that he could recall.
Remember, he has never said, "I have a specific recollection. I walked into here. I did that." That is absurd to expect that. It was pulled over his head hockey style in a hockey fight. One player grabs another and pulls it over. He also used the expression, "ripped from him," from which the Government says, "Ah-ha, that means that the fabric ripped." Even if that was so, there are two complete, you know, explanations that are at least as reasonable as what the Government says.
The first explanation is as follows: if the pajama top was ripped down the front where there was not a seam, the only scientist who did a study of this was Dr. Thornton and what did Dr. Thornton say? He would tear the 65-35 fabric on an unseamed part and he had virtu-ally no fibers to fall out. You remember, he did a number of experiments. He had two or three fibers.
By the way, were there any fibers found in or about here (indicating)? Mr. Shaw--Mr. Shaw, the CID investigator, said that he found near the south edge of the hallway step here three fibers. He doesn't recall whether he collected them or not. The Government says, "Oh, that is not the living room. Ignore that." All right, we ignore that. His correct testimony, I believe, shows that Shaw saw fibers there.
By the way, where was Dr. MacDonald lying after the struggle? Where did he say? On the steps across here (indicating). Is that consistent with where the fibers were found? I think so. I think you have a right to conclude the same thing. Perhaps there are other fi-bers. What could have happened to them that is equally consistent with the Government's theory?
Please take note, members of the jury, I cannot remember this for you, about the red mark here on the floor. The red mark here on the floor represents Mr. Ivory's marking of the gurney. When he came in, he saw the gurney being rolled down the hallway as he came in the front door with Dr. MacDonald's body on it. What did he see? He drew the line. Where did he draw it? Right across the living room floor and right across the heart of the crime scene. Where else might he expect to find one or two other fibers of the pajama top? That is at least as consistent as the Government's explanation. It is just as rational.
The gurney coming through--did it disturb any fibers? It had the potential to do that. Did the feet of the ambulance drivers--the medics--have a potential of touching, carrying, and transporting on their wet soles the fibers? Of course, they did. That is at least as consis-tent as what the Government has to say.
What else do we have? At that time, by the way, was Mr. Ivory looking for fibers? Did he know anything about fibers? He is coming in and getting the first briefing. What does he do?
Walks right past it down the hallway through the same traveled area.
There is a third explanation. I want to show you a picture about that. Why no fibers, they want to know, besides the fact that the garment--no one has said for certain that the garment was torn there. If it was, it was torn here (indicating) on the middle part and there would not be fibers. Here, I want to show you a picture that has been introduced in evi-dence. This photograph is one that was made after Specialist Mica testified.
He described this and pointed it out on the model himself. In your absence, with the agreement of the Court and counsel, we photographed what he saw. This is the man who walked through the crime scene, picked up the flower pot, put it upright, and thereby mis-leading the CID investigators and Mr. Medlin and others. We will talk about that also. He sat down on the sofa. That is the position where Mr. Mica placed that man. Then, he was told to get up and get out. He got up and walked back across there. Where is that man seat-ed? That man is seated on the middle of the sofa. Is that a reasonable place for fibers from the pajama top if it was torn there? It would seem so. I think you have a right to conclude that.
There is a person sitting on it who has been out in the rain. We would have the right to conclude that he is possibly damp and possibly wet sitting on the sofa. Is he a potential transporter or remover of the fibers? Of course. That is at least as consistent an explana-tion of what happened to the fibers as anything the Government says. That is the picture taken pursuant to Mica's describing what happened there.
By the way, here is another photograph. This is a photograph that was taken when Mr. Ivory left the room. This is what he showed us in the courtroom. This is the gurney with Dr. MacDonald's body going right across the living room floor and right in front of the sofa. Where? Where the struggle took place and where Dr. MacDonald described hockey-style pulling over of the pajama top or that it was ripped from him.
I do not have to prove that to you. I only point out that it is a reasonable explanation.
That does not mean that the Defendant--that I or Dr. MacDonald have assumed the burden or that the law imposed it on us because we point out to you the obvious explanations for physical facts in this case.
Now, let's go through the rest of these--well, let's talk about the rest of that living room for a minute. The Government has talked very little about the so-called staging of the crime scene. It was only in the last few minutes of their discussion that they mentioned it. The fact is at the heart of the Government's case that they have to persuade you that Dr. Mac-Donald staged the crime scene living room.
Why? Because, according to their theory, nothing happened in terms of a violent struggle in the living room that night; therefore, if the CID and the MPs found the sofa overturned, the children's materials here on the edge, the magazine down below here, the mucilage on the floor--if that were so, then what the Government is saying to you by silence because they are embarrassed and because they realize they cannot persuade anybody of the facts--what they are saying to you by silence is that Dr. MacDonald staged that crime scene. What a brilliant staging.
There is a photograph here in evidence. I will describe it to you and ask you to remember it. But there is one thing for sure, if I don't come back to it in a few minutes, I pass it not because it doesn't exist so, but I will tell you that I strongly urge you to look through the books of photographs in this case. There are several photographs showing the coffee table on end. There is dangling from one of the slats--it is there on two or three of the photo-graphs--a child's drawing in crayon dangling from the slat here in the picture. Now, since it had to be a staged crime scene because the Government says nothing happened here, look at the fiendish plotting of this man--MacDonald--that he remembered to put the child's pic-ture dangling in. Why didn't he leave it on the floor? Look for the picture.
The Government doesn't want to talk about the staged crime scene theory too much, for some very obvious reasons. You remember Mr. Medlin--he is the Chief of the team from the CID Laboratory at Fort Gordon. What does Medlin say? On cross-examination, he said that when he looked at the living room and he saw the flower pot standing upright, what did he conclude in his mind? He decided that that was a staged scene. Of course, we now know that neither he nor Mr. Ivory nor anyone else had interviewed any of the MPs at that time about the movement of the crime scene. Yes, some of the MPs were sent back to head-quarters. They were asked what they knew about the crime. Nobody at that point, because nobody was thinking professionally and competently at that juncture, was talking about: "Are there any alterations of the crime scene?"
Remember, members of the jury, when we asked Mr. Mica: "When was the first time any-body ever asked you about the flower pot or about the man on the sofa?" He said, "When I testified at the military proceedings in 1970," and when I as defense counsel asked him about it, it was the first time. It was a thunderclap to the CID and to the Government. It shouldn't have been. Why? Because if they had followed the first principles in investigation, they would have preserved and protected the crime scene and they would have made sure that that crime scene was inviolate.
The one thing I recall and perhaps you recall about the evidence at the crime scene is this: I remember Mr. Ivory saying and Mr. Tevere saying that people kept shouting, "Don't touch anything." Right? We heard it a number of times, "Don't touch anything." They gave lots of instructions to "Don't touch."
It was Professor Osterburg who said kind of simply and made such a mockery of that ap-proach to the crime scene protection of giving orders for that protection. He said, "The first thing you do is that you get everybody out of there who isn't absolutely necessary." Why were all of these men standing around? Why was a man in the living room who could walk from here to there and pick up a flower pot, sit on the sofa where the fibers possibly are, go back across the room, walk across the floor again--why was that man there? There is no reason except one. They did not understand the first thing about control of the crime scene nor its importance in the eventual trying to work on a solution to the crime to try and find clues that would help us in this case.
Let's just go through the things that happened in the living room. Besides the pot being picked up, the man sitting on the sofa where the struggle takes place, there are the floating clothes. You remember the clothes that were here in some photograph at the end of the so-fa and were then on the step at some other time. Again, the Government is pooh-poohing all of that. Why pooh-pooh it? There are only a couple of fibers that are likely to be there if you rip a garment down here or if it is ripped at all. You already have people walking back and forth, the gurney, people going down the hall who have no reason to be looking for fi-bers. That is not their concern.
Now, on top of that, they are picking up clothing that is either here or there and they are moving it back. What does that do? There is no potential there to pick up a fiber on some of the items that were there? Of course, there is. That is a more logical explanation of what is going on about the fibers in the living room than anything, I think, that you have heard from the Government.
There were other photos we showed you. I am not going to go through it all again, but I ask you to go through your recollections. We showed you photos about the pillows at the end of the sofa. They are not shown here. There is a brown pillow. In photograph after photograph, the pillows are in different positions. We showed you photographs what--to the shock of the Government and to Mr. Ivory on the stand--of the eyeglasses lying there, one time lying like this in the photograph and the next photograph this way (indicating). Now, what is the point of that? We are not trying to make a mountain out of a molehill. The case will not rise or fall on the glasses being turned around. The case doesn't rise and fall on the fact that the curtains were moved and in one of the photographs that we showed you about how the switch on the wall of the outlet was covered and in the next, the curtains were moved to some other position. The case doesn't rise and fall on those facts. It rises and falls on what you must conclude happened--that they didn't understand that the living room was an important part of the crime scene and they didn't understand how to protect it and preserve the physical evidence and the trace evidence in that room. They did not protect this scene and inferences or conclusions that the Government asks you to draw from it are simply unjustified and unfounded.
The last thing about the living room that I will mention to you so that we don't get our-selves forever and ever talking about that thing, but it does seem to me that the missing wallet is an interesting story. I have heard no witness except Mr. Ivory repeating what he heard other people think happen explaining what happened to the wallet in this room.
Mr. Ivory did say that a wallet that was believed to have belonged to Dr. MacDonald was stolen from the desk over near the door. He even mentioned a man's name. There is not the slightest word of evidence to support that. It is absolutely unsupported. We have never heard any proof of that. Was anybody prosecuted for the theft of that? Can you imagine someone stealing an officer's wallet in the Army and not being prosecuted? That is just ab-solutely Government talk without the facts or evidence to back it up.
Besides that, although, that is what Mr. Ivory said that a man stole a wallet believed to have belonged to Dr. MacDonald, Officer Mica saw a different wallet or another wallet. You remember, we had a little piece of yellow paper put down in that picture. He said that on the floor here (indicating) near the bottom of the coffee table, there was a wallet lying on that floor. It was not shown in the photographs, yet, he saw it. What happened? Again, the case does not rise and fall on that. What does fall on that is the Government's contention that it has a crime scene upon which it can base deductions and ask you to draw inferences and say that they have met their burden of proof beyond a reasonable doubt.
Now, let's take a look at some other parts of the house. I think that it is important to take a look, if you will, with me at the master bedroom. The Government has made its final lunge at Dr. MacDonald today by saying that he ripped off the pajama top in this bedroom, the fibers then fell to the floor, and at some later time, he brings Colette MacDonald's body and lies it down on the floor; and therefore, that is how the fibers--some of them--are found underneath her body outline.
The facts that you have heard in this case do not support that theory. There are at least a number of other reasonable inferences. Let me show you some other photographs. Dr. MacDonald has said that when he came into the master bedroom, he found his wife, Colette, with her shoulder propped up against this green leather chair.
If you will look carefully at photo G-43--you will have a chance later on--but you will see again here are the reddish stains against the side of the vinyl chair. It is a little bit difficult because of the color registration, but it is clearly there on close examination. That, as Dr. MacDonald said, is the position in which he found his wife. What did he do at that time? He says that his pajama top was still tangled around his wrists and hands. At that point, he did rip them from him--although he didn't hear the sound--he tears them from him because he cannot treat and deal with his wife.
He pulls her away from that green vinyl chair. What he said yesterday or the other day when he testified, six inches to a foot, and then the Government almost leaped through the ceiling--why MacDonald--six inches to a foot--he has never said that before. You don't need to have Dr. MacDonald's word on that score. You have what Officer Mica saw.
Again, when Mica was here, he used the doll-like figures that we had to indicate the posi-tions that he found the bodies on the floor and how they were moved. I want to show to you now, members of the jury, a series of photographs that were taken. They don't do any-thing different than what Mica did here in the courtroom. They just register and capture the specific moment.
The first photograph shows as Officer Mica initially observed the positions of Dr. MacDon-ald and Colette MacDonald. That is, that Colette MacDonald was on her back. She was not at that juncture lying next to the green chair, so we know that because of the fact that there is blood on the front of the green chair, that she had to have been moved already somewhat, and that here, he is lying down face down on her.
Here is another photograph which is just merely a close-up of the same positioning of the bodies. Now, if you will look at the scale on this model--the one inch equals one foot--now, it is difficult because we don't have a scale ruler down on here--but looking at the rough po-sitioning in here (indicating) of the bodies as Mica puts them--not Jeffrey MacDonald--as Mica would have no interest in this case and Mica who is the person that remained in profes-sional law enforcement sees it--it is not unreasonable to say that it is somewhere between six inches and a foot.
Now, Mica then further showed us what he did. He got down between the two bodies--between Jeff's body and Colette's body. You may remember the thing that caused him to come there was a first stirring when Jeff rolled over on his shoulder. That is the first thing that made him think that the man was alive. Here, you can see how Mica placed the figures that were given to him in the presence of Government counsel and the moment was pre-served by the photograph--getting down between the bodies of Colette and Jeffrey MacDon-ald.
Well, what happened? Jeff's body was already moved. Now, you have a close-up of the same situation showing that taking place, and finally, you see what are Mica's actions in that regard. Mica attempts to give mouth-to-mouth resuscitation. Three consecutive times, he gave mouth-to-mouth resuscitation to Dr. MacDonald.
Let's take a look at a close-up view of the same thing. He is between the bodies of Jeff-rey MacDonald and Colette. Look at the position he is in. While there is no specific recollec-tion, and why would anybody think to recall that, I think it is as reasonable to infer that as Mica attempted to tend the only living human being in this house--to deal with that crisis--he is not worrying whether or not Colette MacDonald's body--she was dead then; he knew it then and he said so--whether that is moved a bit by his feet, by his hip, or his thigh as he gets down and tries to perform mouth-to-mouth resuscitation. There is no reason to think that didn't happen. It is perfectly reasonable to believe that in taking care of this one man--consider the small size of the rooms here.
Finally--finally, Mica shows us the ultimate position he had Dr. MacDonald moved in. In this photograph, the body is moved further. What has happened to Colette--you can still see Colette MacDonald's body--it is at least six inches to a foot away from where she was originally located because we know the blood stains were on the vinyl chair. All this has hap-pened. What is it doing to the fibers? Why is it unreasonable to accept Dr. MacDonald's ex-planation? He tore it off, he moved his wife's body. There are a handful of fibers under her body. The majority of fibers in that room are found where? Of the fibers that were collected by the CID, three quarters of them are found outside of the body outline. Remember, Ivory said that there were many, many more fibers that were not even collected. Doesn't that sound exactly like what Jeffrey MacDonald said? He ripped off the pajamas from his arms around the binding and he tossed them away. In that act, if he tore the seams, that would be the only way and only time it could happen--at that time, there is a profusion and a large number of fibers are deposited on the floor.
The Government says there is only one explanation because they have to prove this to you beyond a reasonable doubt that the fibers were all there and the body was placed on top of it. If you do not find that singular fact proven to you beyond a reasonable doubt, what has happened to the Government's theory of this case?
Let's stay in the master bedroom for a bit more. There is a pile of bedding in the master bedroom--the bedding from which the Government has drawn so many fanciful inferences. What about the various blood marks they see on there--the pictures that Mr. Stombaugh has seen in the bedroom?
First of all, where is the bedding seen when the first, I think, reliable observer of the scene comes on. Again, I direct your attention to the testimony of Officer Mica. Mica says that he saw the bedding--and I am quoting to you to the best of my recollection, but again, you depend on yours in terms of what you think happened--but my recollection is from the record of this case that he said, the bedding was at the foot of the bed. Now, what do the photographs in this case show?
I show you Government's photograph 211, and then I will show you 210. Where is the pile of bedding? That is not at the foot of the bed. It is next to the closet with the open door.
That is where it is. How does it get there? Again, go back to the events as we know them to have happened.
Dr. MacDonald described it--it is supported by Mica and Tevere--they all agreed it essen-tially would happen--he opens his eyes and looks up and he sees what, a circle of helmets of MPs over him and is wondering what to do, trying to be helpful, excited, calling out, giving instructions; but how could they have been doing that if his body was as Mica shows us in the last of these photographs here. Take a look at this photograph.
Now, just for a moment, if you will, members of the jury, look at where Mica and Jeff Mac-Donald's bodies are placed. What we don't have shown here--this is a photograph of where the medics who took the bodies away were--but what we don't have is a photo because no one remembers with precision exactly where the substantial number of MPs were standing around the bodies. If, in fact, the bedding was there at the foot of the bed as Mica de-scribed it, what is likely to have happened to it? Well, one reasonable inference you could draw is that somebody not caring about the bedding, but caring about what was happening to a person, kicked it aside toward the closet. That is a reasonable inference.
As a matter of fact, I think there is more than one reasonable inference. Look again at the same photograph. You see the gurney here. This is where Mica says that the medics came in and pushed that rolling bed into the room. Now, what is underneath the rolling bed?
What is underneath is the bedding. There are probably two possibilities--two inferences you could draw from that.
The first inference is that probably it wasn't there yet, but it was probably over by the foot of the bed and not kicked over there until later on or moved over there until later; or, in fact, that the gurney touched or moved, or the MP or the medics who were handling it touched or moved, these sheets that were over there. Now, apparently, there are no wheel marks on those sheets; but we were told that they rolled this gurney down the hall and rolled it into the room. You remember, there was a whole issue about how they brought it down the hall, and I thought it was interesting myself to realize that they didn't even pick it up and carry it--they could have. That was probably a little bit more work, a little heavy. We are told that they rolled the gurney all the way down the crime scene hallway. Whatever fibers were still there at this juncture, they disturbed potentially. They rolled it into this room and the picture shows where Officer Mica says that the gurney came to rest.
What does it tell you about the fiber situation? What does it tell you about the bedding situation here? It tells you that anybody who attempts to draw inferences that this crime scene was preserved so we can now make deductions from it is following a path that is going to lead to disaster. You cannot--cannot make those inferences. The facts are not there. They did not preserve that scene.
What else happened? What else? What is Dr. Neal doing? Dr. Neal came in and said that he moved the body, he moved the pajamas, he lifted it up. You don't need a great deal of moving. You don't have to drag the body around this tiny room in order to understand how some fibers got under the body which did not necessarily have to be under the body when Colette fell to the floor. That is at least as reasonable an explanation as anything that the Government's contrived theory submits to you.
What else was going on in this particular room? Consider Colette's body itself. It is proof, I think, of the total fallacy of wrong deductions from this crime scene. The Government has built a great theory about the pajama top--the blue pajama top over Colette's body. It stands, I think, on the same kind of sand the balance of their analysis does. Dr. Neal said that the breast--and other witnesses said--Mica said that her breast was partially exposed. Now, what does the photograph show in that regard? I want to show you what the crime scene photos indicate to us and compare them, if you will, to, in fact, what the witness is telling us.
Dr. Neal--what does he say? The pajama top was moved. If you will, members of the jury, take a look at 41. That is one picture of Colette MacDonald as her body was covered partially by the pajama top. That is not the way when Mica was showing it, but he said, "The way I saw it." He described the pajama top being in a lower position. He describes part of the bare abdomen being exposed. There is not a person who saw her body with the paja-ma top until Ivory, who agrees that that is the position when they initially saw it, but again, from this fallacious photograph--a photograph which is, I think, unintentially misleading but should not have been misleading if they were good investigators and followed basic rather than extraordinary practices--they would have learned that this had been moved by Neal and by other persons either unintentially or otherwise, and that deductions based upon that are going to lead to error.
Now, there is something else that the Government spent very little time on in talking about this particular crime scene. It is the fact that on the feet of Colette MacDonald, there was blood. Let's take a look at that again. There is a photograph--in fact, there are a number the Government introduced--and we are also--in the break, I will pull the photograph out and show it to you more properly--there was a photograph in which the body of Colette MacDon-ald was turned this way (indicating) and you will see that her feet show clearly blood stains.
How did she get those? What is the Government's explanation? What is their theory?
Their theory is that she was carried into the bedroom and deposited on top of fibers. How does she get blood stains on her foot? There are, I am sure--I am sure that for every alter-nate theory that I point out to you that is reasonable deductible from the facts in this case--contrary to what the Government says--the Government will come back because they have the last say and come up with one more explanation, and I will have and Wade will have no chance to respond. We have only one opportunity to talk to you this time. The Government gets the last say. I want to point out to you--it doesn't matter if the Government comes back and springs up and says, "Well, we have another theory about Colette MacDonald's foot and the blood." Why? The more theories they have, the more clear it becomes that the five rules by which you will be guided in your decision making cannot lead you to the conclusion that the Government has met its burden of proof in this case.
The five rules will tell you that every time they come up with a change to explain another event because their case is built upon assumptions that are not supported by reality, it is once more proof to you that they have not met their burden in this case.
Now, what about the bedclothes in this case? What about the sheets that we talked about that were on the floor? How did they get to be there? There are at least several ra-tional explanations for that. First of all, we know that they are partially folded back to clear away the large urine stain that was on the bedsheet. That urine stain is not disputed. The Government showed it, the Government concedes it, it is here, we have the sheet, and we know from the size of the urine stain that it required a substantial amount of the top bed-ding--the top sheet and the bedspread over it--to be pulled back. It is a fairly large circle--probably 18 inches in diameter.
We have, therefore, the first of several, I think, rational explanations about where and how the bedding started on the eventual trip that brought it to the floor. It is folded back by Jeff to air the bedding. How did it get off the bed? There are at least two rational explana-tions probably as convincing, if not more so, than any theory the Government has offered yet about that. One, that when Colette MacDonald was first attacked in her bed, the attackers ripped it off and pulled it back to be able to attack her body; secondly, that when she got up and left that room--because I think that the evidence indicates that that is exactly what happened--that when she left that room, she may have knocked or brushed, in her wounded condition, that off the bed. Mica tells us that that was at the foot of the bed.
Now, what happens to that sheet besides the fact that we know that it had to travel on the floor and that it had to move from the foot of the bed to the position over here at the door and that it may have been moved again by the medical personnel because I don't think they ran the gurney over it, although it is certainly possible--we didn't see any tire tracks, but that may be very possible and the wheels of the gurney may have gone over it--what happened to the gurney when the investigators come to it? How do they handle it?
They don't know what is there. They first pick it up and out falls a piece of latex. They then say, "Gee, we better gather it up." So, you remember the famous demonstration of Mr. Ivory and myself and then how he and Mr. Shaw gathered it. I call it the famous "CID clutch" because he showed us how he gathered the sheets together and put it into a bag which I held was smaller than the bundle. It was not a large bag. You will remember that it just fit into the bundle. It slid in and what happened? Where he touched it like this, the sheets are now in changed contact positions. They are fitted into the bag. Then, what did he do? You may recall that he twisted the top and wound up putting it over here (indicating).
Now, what does that mean? You have every reason to believe from all the evidence in this case that the blood was still moist and that the sheets touching each other with the blood on them produced these contacts which account for some of the various smears in there. That is at least as rational as any explanation the Government has offered.
As a matter of fact, the Government's explanation as to these various markings--the ones particularly that Mr. Stombaugh characterized as handprints--if there is anything in this case that I think has been disproven by the simple truth of showing you rather than saying, "Take my word," it is what Chuck Morton from the Institute of Forensic Sciences did here in this courtroom--the demonstration--when he showed you in the little demonstration here that in fact that there was no cuff print there; it was a contact of a palm print and that Mr. Stom-baugh doesn't know when the fibers went off of the cuff and that what you have here are friction ridges that run a different way, you can't call them cuff prints.
How did that happen? Chuck Morton explained that what you have when blood touches and when you have impressions and when you are making contacts that you have a transfer-ence process. We did the same thing with the palm prints. The palm prints went this way (indicating)--the handprints. If you push your finger down, as Chuck pointed out to you, and you have blood underneath, what happens to the fat part of your finger? It squishes the blood out--it lays it out. What should be there, then, when the fat part of the finger touches? The least amount of blood, because it has displaced the blood and it pushed it out.
What do you have in Mr. Stombaugh's exhibit? The so-called handprint is where the fat part of the finger should be is the darkest circle of imprint and it is like the other way around.
Now, you have two choices. One, in which you can say that we have had a forensic scien-tist who has come in and said, "In order to try and answer the question that has been put before me--could this be a handprint--this is what I have done and I show you the process whereby I did it," or you can take Mr. Stombaugh's word, "That is a handprint."
We said to Mr. Stombaugh, "What experiment did you conduct? What did you do in the way of scientific approach or in science as a whole?" He says, "No. I looked at it and I rec-ognized it. I am an impressions expert." I want to say to you that deductions made by the Government from the sheet which is gathered up in the fashion I described with blood on it and which you have a right to conclude was still moist and there is probably the transfer of the contact as the explanation of the so-called Stombaugh handprint, they are not hand-prints at all. I do not know how anyone in this jury could say that beyond a reasonable doubt, you have seen evidence that overcomes the demonstration that Chuck Morton did that says when the fat part of the finger touches, the blood is least there as opposed to what Mr. Stombaugh showed you where the fat part of the finger should be, there is the most blood there. There is no basis for his opinion. It is sheer poppycock and there is no basis for the jury to consider this as proof beyond a reasonable doubt of that portion of the Government's theory.
Now, let's talk about, if we can, about another room. Let's talk about Kristen's room. The Government, in its final moments of argument, articulates this theory that Jeff MacDonald, for reasons that they do not suggest to you and for motives that are totally unclear and non-existent, as a matter of fact, that is where, we suggest, that the Government suggests there was a struggle and that the pajama top of Jeff MacDonald became bloodied and that was why he had to put it over her body later on and all these things that are happening.
What do we know about the fibers in Kristen's room? We know that the least number of fibers in this case--the least--were found in that room. If that was where the struggle took place--if that is where the pajama top tearing took place, according to the Government's theory--why are the least number of fibers there? You have to say to yourself, "There is probably another explanation we are going to hear." That ought to give you the answer. The more explanations the Government offers, the more you realize that the rules of law tell you that there is no proof beyond a reasonable doubt of any of what the Government is say-ing to you.
Now, not only was there movement in the master bedroom of Colette's body--for all the reasons we have told you--but there is also movement here for reasonable and understand-able circumstances in Kristen's room.
First of all, Dr. MacDonald has testified that on at least two occasions, he went to the bedroom in these kind of hopeless circuits to do something he knew he had no point. He knew objectively that his family was dead, but what does one do, considering what had hap-pened to him and his family, except that not knowing how else to respond to a tragedy of monstrous proportions, he gives mouth-to-mouth resuscitation. Does he move the body? It is clear that he moves the body.
Now, what does the Government suggest? They haven't mentioned it yet, but I suspect that after we get done--we pointed out to you that they have a theory about this regard--they will say, "Ah-ha, if MacDonald really did give mouth-to-mouth resuscitation to his family, he would have rolled the children flat on their backs. He would have done it the way we do it in demonstrations, you know, the perfect way." What Dr. MacDonald was doing was that he just put his mouth to his child's mouth and he knew the bubbles that were there. He knew that they were dead. He did not accept the reality. Who could accept the reality? Who could act like a rational, you know, scientist--a rational person in the face of this?
I don't know what he did and he doesn't pretend to know. Did he move the body? Did he put the body flat on its back and then roll it over again? I don't know. Does anybody expect him to know? Does anyone really care, you know, that this was not a mouth-to-mouth dem-onstration. You only had to put your mouth there to find that there was air and he knew that his family was dead. He reached under the bedclothes to feel for pulses. Did he move the sheet? Did he have fibers on him? Consider that. Take his explanation as opposed to the ones the Government invents and offers to you.
At the time he went to Kristen's room, he had already been to his wife's room. He had ripped off the pajama top, he says. He had bent over her bloody chest with his bare body.
You have every reason to believe, considering what was going on there and having the injur-ies that he had, that he might have even been sweaty. Put that aside for a moment. At least, we know he had blood on him.
Is it not reasonable, at least as reasonable as what the Government says, that he ripped off the pajama top and some of the fibers adhered to him? Why wouldn't they? If you rip off a garment and a man has hair on his arms--that would be a woman also, but more particularly a man's hair--might he not have gotten some fibers there? If he had blood on him, wouldn't the fibers adhere to the blood?
What is so impossible--what is so conclusive of the Government's theory that makes Dr. MacDonald's explanation totally irrational to say that when he left his wife's room, he had no pajama top on, but who said he didn't have fibers on him from the pajama top? Now, let me just digress for a second because I find myself caught up in this kind of mystique that the Government creates.
He was wearing pajama bottoms also. You have all these charts the Government has pointed to and all of them have this wonderful label at the top, "Fibers that are microscopi-cally identical to what--Dr. MacDonald's pajama top." You have every reason to believe from the evidence in this case that the pajama bottom was the same pair--the same pajamas--the same top and bottom--the same color--and that, in fact, he was wearing them when he went from room to room. Were they torn in the struggle? Dr. MacDonald doesn't invent some story and tell you they were. He says, "I don't know--I don't care. All I care about is that my family is dead. I am trying to figure out what to do. I am confused. I am trying to deal with myself," but he had them on also.
Might they not have also served as a carrier of the fibers--one fiber brushing against the garment and if there was any blood on those pajama bottoms, the fibers would adhere to that wet. Why is that not at least as rational as what the Government says?
Then, they have more going on. You have Jeff coming to the bed. You have a moving of the body at least twice and some type of mouth-to-mouth resuscitation being given. Dr. Neal comes and he moves Kristen's body radically. He moves the body, and, obviously, the bedclothing with it. There is nothing terrible about that. Nobody is faulting that. What we are saying to you is how can you rely upon a conclusion that is built upon inferences that the crime scene was, in fact, absolutely static and untouched by anybody.
Finally, the movement by the medics. The medics come and they move the sheets, they remove the bedclothes, and they remove the body. By the way, how many medics moved Kristen's body? Well, it depends on who you talked with the Government. Mr. Ivory began with a little demonstration that we had him do and told us about how one medic went to each of the children's bodies and lifted it up and carried it out--obviously worrying about fi-bers--obviously not.
What did Mr. Shaw say? He said two medics went and moved each of the bodies. Why do I dwell on that point at all? First of all, let me just make this passing remark and I will come back to this. If Dr. MacDonald was to have made the same mistake, it would be in the Government's little blue book, he would be yelled at through their contradictions, and obvi-ously, it would lead to the conclusion that Dr. MacDonald was telling a false story; but when Government agents, who should be, among other things, taking notes of what was going on because that is decent, minimal criminal investigation procedure, Government agents who have not been wounded or injured, Government agents who have not had their families wiped out, Government agents who are not suffering in any way in illness or defect or condition.
When they can't get it straight about this kind of activity in a crime scene, how are we sup-posed to get worked up that MacDonald doesn't remember exactly whether he went to the bathroom first--on the second circuit or the first circuit he went here or there. How can it compare with men who are supposed to be doing their trained best to handle an investigation but can't get it straight whether one medic moved the body or two; yet, they want you to believe it--and they can't get it straight, however, that nothing was disturbed as far as fi-bers on the bedsheet and nothing could have happened to the bedclothes to change any-thing in the physical facts. It is not rational and is not an acceptable explanation; and more important than that, any case built upon such inferences from that scene cannot sustain its burden beyond a reasonable doubt.
Now, let's take a look at the blood in Kimberly's room--again, we talk about Kimberly's room. There were two visits to her room by Dr. MacDonald. Dr. Neal is involved here in the room in moving it. There are two medics or one medic depending upon whose statement there is there. What is the reality here? The reality is that we are not sure how much there was in the way of movement of this body and the bodies, of the bedclothes, of any fibers, or of anything else that was there, but we are sure of something--the photographs and deduc-tions do not flow from those episodes.
Now, I want to talk about the blood question. Is there any blood in the living room? Let's start all over now with our circuit now and we will start with the living room. Is there blood in the living room? The Government makes a great to-do. I would suggest to you that prob-ably the largest single crime that they would accuse Dr. MacDonald of is that he didn't die, he didn't suffer enough in their judgment, and therefore, that must lead you to the conclusion that he committed the murders.
First of all, I think the Government's findings are suspect, and you have a right to suspect and may be suspicious of those findings also as to what blood there was in the living room. Now, I don't think there was a great deal of blood because the nature of the injuries--the puncture injuries with the ice pick were the least likely to produce profuse bleeding. We have learned that from all of the pathological evidence here. There were, in fact, three areas along the sofa wall that Craig Chamberlain went and examined because he believed that they might be blood. Now, this led us to a little scientific, you know, side jaunts about how does one detect blood. Chamberlain said that he used benzidine to see whether they gave reac-tion. He was asked a simple question that if he knew anything about blood typing, it seems to me, he would have known the answer.
He was asked if benzidine was specific for blood--that is, it reacts to blood and that is it. If you get a reaction, you have blood, and if you don't, you don't have blood. He said, "Yes."
What was his training and knowledge in the area of blood? When Chamberlain did this, he was fresh out of college. He had a Bachelor's degree, he had eight semester credits in a graduate school in chemistry, he was drafted in the Army, he did eight weeks of basic, and had just finished his six-month course at a CID Laboratory and was on his first crime scene processing.
Dr. John Thornton, a Professor of Criminology at the University of California, testified here that with his experience in processing homicide crime scenes as well as other kind of crime scenes and that with his background and knowledge in the fields of criminalistics and forensic science, that benzidine is not specific for blood--it reacts to other things. Now, it is clear--I don't want to mislead you--benzidine and blood--it is highly sensitive to blood--but Dr. Thornton pointed out that there is one more factor that you have to consider before you say that there was no blood there. That is, in fact, that if the quantity to be typed is too small, you may inadvertently conclude that it was not blood when, in fact, it may have been.
Now, the Government's theory that there was no blood in that room is premised on the assumption that Chamberlain was a fully-qualified expert to do blood testing on the crime scene. That is one of the interesting things--what nine and a half years does to a case. Nine and a half years ago when I saw Craig Chamberlain, he was fresh out of college and fresh out of CID, you know, the six months training, the drug testing, and all the other things they do there, processing his first crime scene ever. And he is, I suggest to you, members of the jury, absolutely flat out wrong with the scientific facts about benzidine. His knowledge cannot be compared to that of John Thornton's.
Now, Chamberlain now has a Ph.D. He just got it last year. He works in a responsible po-sition but nothing to do with forensic sciences. I think on balance, members of the jury, you have a right to conclude that, in fact, the Government does not know, and we do not know, whether or not those three spots on the wall in this position that would have to be more than coincidence right above the sofa whether or not blood ever existed there or not. It is a fail-ure to properly process the crime scene. They keep coming back and haunting the Govern-ment's conclusions and opinions about this case.
There was also blood some place else. There were spectacles of Dr. MacDonald found in the room with a speck of blood, but in all these hints--these dark hints by the Government that maybe he got it the night he worked at Hamlet Hospital. Well, you know, he worked in the hospital and he treated the young lady there and the suggestion was from the question that maybe that is how it got to be there. If anything you have learned physically about Dr. MacDonald is what--is he a sloppy man? Is he a man likely to walk around with a blood spot on his reading glasses having to read for several hours? It does not seem to me that there is evidence to sustain such a conclusion. It is an equally likely inference in this case that that blood spot is a product of the struggle that he had in the living room. Even if you cannot say that you accept that, you have to say to yourself, members of the jury, that the Govern-ment has not proved beyond a reasonable doubt that there was no blood of Dr. MacDonald's in that room.
Now, let's talk about the blood in Kristen's room because there, I would think, is an issue that is worth some understanding--more so than I think the Government's theory allows. It is the only room in the house where there is a significant quantity of blood of someone else.
Colette MacDonald's type blood is found in a significant quantity there as well as in the hall-way right outside Kristen's room where there is a bloody footprint.
Every other room in which there is a blood spot found of the type other than the person who lived in that room--every other room--I submit to you that there is no evidence to indi-cate that that blood couldn't have gotten there through either contamination of one of sev-eral forms--in every other room. It could have been by Dr. MacDonald himself as he goes from body to body, bending over and coming in contact with the body that was found, and in going to another room, he could well have been the carrier of the quantity of blood there.
Secondly, the weapons used by the intruders are certainly in your judgment potentially car-riers of blood from one room to another, and a weapon used to strike and murder one person in this family and then carried into the next room, either used there or present there, is a po-tential carrier of blood. Thirdly, the very persons who were the assailants in this case--the attackers in this case--because the quantities of blood with the injuries that are required and were brought forth on these human beings--on their person and on their clothes are potential carriers of the blood to other rooms. That is at least as consistent on the facts that you have as any explanation the Government has. But in Kristen's room, I think it would be a proper conclusion for the jury to draw that the quantity of blood there teaches us some-thing--that Colette MacDonald was in that room and also the picture--as I will show you shortly when I have a chance to go to those photographs of her foot with the blood on it--tells us what? That she was walking at some point.
Now, once you recognize that Mrs. MacDonald was moved, the question may become: what are the proper hypotheses or inferences as to how she got there? I think, based upon the pathologist's examination, it would be a fair conclusion for the jury that the first injuries that Mrs. MacDonald received were the ice pick injuries because as far as we can tell, none of them were probably fatal. They seemed to be relatively shallow like this (indicating)--a large number.
What happens then? Mrs. MacDonald is not disabled and not unable to leave the room.
When she is either able to regain consciousness, if she lost consciousness, was she able to move about from the shock of the injuries? What happens next? She races to protect her children. It is a short few steps out to the nearest room.
In that room, I think the evidence will allow you to draw the conclusion that she was at-tacked by several persons. The evidence of that can be shown the following way. The Gov-ernment has just argued, and I think it is probably a correct conclusion based upon the path-ologist's report, that Colette MacDonald received defensive injuries inflicted by the club at that time, but what were the injuries?
Her arms were broken. Her arms were broken in trying to blunt the clubs. How then did Colette MacDonald receive stab wounds in both arms--I will show you the pictures in a min-ute of the wounds--unless one of two things happened--either that she was being attacked with two different weapons at the same time, which then she could receive both club wounds in breaking her arms and stab wounds, or the other conclusion that the Government argued is that later on, she put her arm up to ward off a second attack by Jeff MacDonald. How could she raise her arms to a defensive position with two broken arms? How would she be able to do that? Where, considering the other injuries, is the potential strength to be able to raise for a second time the broken arms to a defensive position? I think the suggestion here and the inference here is far stronger based upon the photographs, that Colette MacDonald re-ceived both broken arms and stab wounds at a second time. It seems to me an illogical and inconsistent--not supported by any facts or conclusions--that she was still able to raise her arms after. Let's take a look at the photos.
Here, the black marks on here, are the marks of knife wounds and incisions that we are talking about on the same broken arms. Here again, on the other side, you can see various marks here that are described by the pathologist as being incision wounds. Finally, in the third picture here of the hand, there is a clear large red incision. How did she get that? Did Jeff MacDonald strike her simultaneously with the club and the knife? That, I think, cannot support the evidence. I think that is such an absurd conclusion. That is so illogical that not even the Government is willing to try to press that further.
Oh, I suppose, given enough time--another hour--until they get a chance to speak again, they will have a new theory about how to explain broken arms which have several types of injuries on them, but I submit to you the very fact that they will offer still another theory goes back to the five points of law--the one that says there is no proof beyond a reasonable doubt that Jeff MacDonald inflicted these injuries upon his wife.
Now, beyond the blood and beyond those injuries, there is other evidence here which is worthy of your consideration as showing that, in fact, deductions of the crime scene cannot be made to support the Government's theory. I am talking about fingerprints, I am talking about wax, and I am talking about latex gloves.
Let me talk about the latex gloves first. You have a clear cut contradiction and a chioce to make in this case between the testimony of Mr. Michael Hoffman and the testimony of Dr. Vincent Guinn. Now, this is not an argument about titles and credentials. It is not a ques-tion that you should believe Dr. Guinn simply because he has a Doctorate and Mr. Hoffman does not. What is clear is the comparison as to the way the evidence was approached in this case by the two sides.
Dr. Guinn, unchallenged by the Government because they know it to be true, is the world's leading authority on the use of neutron activation analysis in forensic matters--legally related matters. There is no question about his credentials in that regard nor about his contribution to scientific criminal investigation.
Dr. Guinn made two separate statements. First of all, he says, "I have looked at Michael Hoffman's data where Hoffman takes a piece of the rubber latex gloves found in the MacDon-ald home and several samples of the unused latex gloves that were also found in the home, and I have compared them." Dr. Guinn said, using Hoffman's figures of the percentages of the elements that were present, that absolutely in his mind, they show it is unlikely that the samples that were found in the MacDonald house--the actual package of gloves--were made from the same batch as the fragment of the latex glove found in the bedroom. Secondly, he said--the first one is highly unlikely--but the second, because of the differences in numbers and the amount of disparity in them, that it is not likely that the same manufacturer ever made the packages of gloves that were found in the MacDonald house and the piece of latex glove that was found in the bedroom.
Then, he said, "However, I did my own work and not only did I find that there was this disparity, I found ten elements. The Government did not find ten elements. Out of my own data, I conclude that it is highly unlikely that the samples in the MacDonald home were made from the same batch as the piece of latex in the master bedroom; and secondly, that it is unlikely that the same manufacturer made them."
What is the Government's response? Dr. Guinn literally laid down a challenge from the stand. He said in effect, "I defy the Government to re-do their work and come back and say that I am wrong in my numbers and wrong in my conclusion." What did you hear on cross-examination? "Well, wasn't your equipment a little newer? Wasn't it a little newer?" Dr. Guinn said, "Sure, but that had no effect on the results."
Secondly, the Government now has such equipment. Why did they not do it again? He put down the challenge. That was his choice to do that because the disparity was so clear to him that he said that the Government could not, in fact, show what they contend, that these latex gloves are part of the same batch or came from the same manufacturer as the gloves which were found in the MacDonald house. That is the beginning of the end, I think, of this house of cards and this house built on sand in which the Government says, "All this physical evidence--if you look at it the way we want you to see it, it proves that MacDonald did it. He had to put those rubber gloves on--the latex gloves on." It is interesting. Where did they come from?
The Government was so suspicious that these latex gloves were used by Dr. MacDonald that William Ivory had the Post engineer come and dig up those sewer lines leading to the MacDonald house at the same time that Hilyard O. Medlin and the rest of the gang were flushing the toilets down at the house. That is the kind of investigation--I mean, Ivory had the idea and doesn't seal off the bedroom. Remember, he said--as a matter of fact, I ex-pected what was going to happen because--well, they thought that maybe MacDonald had flushed the rest of the latex gloves down the toilet and they were going to dig up the sewer lines--"Did it occur to you, perhaps, to keep the CID people from using the toilet?" He said something about how they went to CID Headquarters and used the toilet. That is even a little bit ridiculous to suggest. Maybe they went to the Kalin's house next door, but there was no proof of anything.
Then comes Medlin. We asked him. Medlin said, "Sure they used one of the bathrooms in the house." That is the kind of crime scene protection. Let's go past the latex glove. I think the latex glove stands out in bold relief. You have--I don't know of a more qualified source who said, "You don't have to use my number. You can use the Government's num-bers," but either numbers tell you what? These are not likely from the same manufacturer or the same batch. It is just not proven beyond a reasonable doubt by the Government under any circumstances.
What about the fingerprints? Fingerprints would have been helpful. What about the back door? I suspect that everybody here had an interest when they went to the crime scene to take a look at the back door. First of all, I trust you realize that it is not the same back door. The original back door is gone. That bothers me somewhat because the Government has said in this case repeatedly that except for releasing some of the furniture, the house is the same. That door is not the back door--not the green door that you see in the photo-graphs--and I really wish the Government would pay attention to the details because if they are going to do a scientific crime investigation and if they are going to make deductions, don't overlook such things as saying, "You are taking off the back door. It is not the same one." What about that back door?
The explanation by Mr. Medlin about seeing prints that were visible and being unable to photograph them and being unable to take the door down just leads you to one conclusion.
He was not qualified to do the work he did and that precious fingerprints on the place where it is likely that the intruders came into the house were lost forever because of the way he handled it.
Professor Osterburg went on to say that in his judgment, this crime scene, considering the kind of crime it was, was totally underprocessed for fingerprints. He talked about the door that separated the utility room from the master bedroom. He pointed out how one part of the panel was processed but the opposite side was not processed. The Government makes a big issue. Well, Osterburg said that it didn't make any difference as to which way was faced in or out. They answered that it did not make a difference--does not make a difference. We don't know in what position this door was when the intruders came in. We don't know whe-ther it was open or closed. We don't know if it was closed to the inside room or closed to the outside room. We don't know whether they pushed it again leaving the place. It doesn't matter because Osterburg tells us--basic ordinary criminal investigation says--"Holy smokes, this is a probably entrance and an egressway. If you fingerprint the whole thing, what does it take to do that?" Osterburg says that the entire house could have been processed by one competent examiner--one examiner, let alone one with an assistant to Mr. Medlin and Mr. Turbyfill--in half the time that was spent there to do so little of the work they did.
How can one draw deductions and say as the Government asks you to say that, "There is no evidence of other people here. We took care of the crime scene. This is all perfectly all right." They make an inference that they want you to ignore the other possible inferences. It does not support it.
The evidence tells us that here in the master bedroom where the jewelry case appears--look at the photograph--in which the missing rings are located or they were last known to be kept and that on that glass top, which Dr. Osterburg says is an ideal surface for lifting finger-prints--there was something about dusting, but it was not totally processed for fingerprints. It is inexplicable. It is unjustifiable and it can only lead to the conclusion that certainly this house was never processed for fingerprints as it had to be in order to identify the intruders.
It would have helped to identify the intruders or to prove in some conclusive fashion that Dr. MacDonald committed these crimes as is suggested.
Let me talk about while we are right here on the subject of the chest with the jewelry box. I heard the Government counsel say this morning, "We only have Dr. MacDonald's word of the two valuable rings"--the one that the Kassabs asked Dr. MacDonald to retrieve that was a family heirloom and the one that Dr. MacDonald had given to Colette himself--"the only proof we have of that is Dr. MacDonald's word that they were there in the house."
You have before you one of the exhibits toward the end of the case when Dr. MacDonald testified the Government settled with Dr. MacDonald for these claims of lost property. It says on those cover documents that they discussed this matter before settling with Dr. Mac-Donald for those rings as well as the other items with two people--Captain Clifford L. Somers and CID Agent William Ivory. Captain Somers was unable to be here.
He was the principal Government prosecutor at the military proceedings in 1970. William Ivory was the same William Ivory. He was the lead investigator in 1970. Now, they had been through this whole process before of having heard the challenge that the rings were missing, and they, having consulted, agreed that Dr. MacDonald had to be compensated because there was no basis to refuse compensation. Here, nine and one-half years later, we hear the same explanation--"There is no proof the rings were there." Why did the Army pay for it? Why did the Government pay for it? Why didn't they say, "We resist. We resist. We don't believe you, MacDonald"?
You ought to consider that that is an admission by the Government that that document where they paid Dr. MacDonald and said they talked--not just a property loss--but they talked to their criminal investigator and the chief prosecutor and agreed that they owed payment for those rings. That is an admission by the Government that the rings were prob-ably taken that night.
Now, look, I am not suggesting to you, members of the jury, that the motive of this crime was to steal those rings. I don't think that was the motive. We will talk about that motive later at another time. I want to say to you that just because the people did not come into the house with the express purpose of stealing rings, it doesn't mean that the persons who committed these absolutely horrendous and monstrous crimes did not on the spur of the mo-ment see a jewelry case and grab something from it. Yes, there were other valuables in the house. There were other things that could have been taken. This was not a ransacking of the house, but that was a jewelry box sitting on top. It was obvious and in an obvious loca-tion. One didn't have to do anything. As a matter of fact, I think the reasonable inference that you might draw is that the woman seen in this case did not have a weapon--the woman talking about acid--LSD--and that in one of those strange and whimsical and unthinking mo-ments removed from the crime scene something of value--not because she went there with a purpose of stealing it and not because the men went there to steal--their purposes are dif-ferent--but that would be a reasonable inference. Otherwise, why would the Government in having gone through the efforts that the prosecutor had gone to prove the opposite that there were no intruders and then concede, "We have to pay you for the rings because they are not there"?
Now, besides the fact that the rings are missing, besides the latex gloves, there are other fingerprints in this house. There are fingerprints along here (indicating) and in a number of locations which either because they were improperly developed or they were certain that the photographs were done totally inadequately are forever precluded from helping us understand who was in that house. We know further that there was an inadequacy of processing. Here again, there are just tons of photographs.
Look at what Dr. Osterburg told us when he looked at the headboard and the word "pig." Of all of the obvious places in this house, that should have been dusted from one end to the other even if it seemed at that time unclear why. How would Mr. Medlin know that perhaps the attackers didn't come the other way? Medlin didn't have to know anything except that this was a crime scene where some stranger apparently wrote "pig" in the blood of a human being. Medlin didn't even dust fully on the edges around here and did not dust around be-yond the immediate area, and we lost totally in a critical area the possibility of retrieving fin-gerprints. What does that say to you? It says, how can you conclude, members of the jury, that the Government met its burden of proof--the one that lasts from the beginning of the case to the end--beyond a reasonable doubt?
What about the hallway--what about the hallway? You remember the little scene that we have again with the gurney. The gurney is 22 inches wide. The hallway is 36 inches wide.
That leaves us 14 inches. Remember how Dr. MacDonald's body was moved down the hall-way--one man at the front of the gurney and one man at the back of the gurney and one man to the side of the gurney. I submit that you have a right to conclude that the man moving along the hallway wall with that space--14 inches there--with the gurney in a col-lapsed and lowered position which meant that in order to assist in moving the body, the per-son that was bent over, that man, in trying to do something helpful, nevertheless, raised a potential of destroying fingerprints in that area. Of course, we don't even know whether any fingerprints were even smeared there because Hilyard O. Medlin did not fully process that hallway from end to end. There was selective processing for no ascertainable reason except that he had made a pre-judgment in this case and he had made a decision that there were no intruders and that he had made a decision that he was not going to process it because he, Medlin, saw the flower pot stand upright in the living room and decided that was enough to convince him that it was a phony crime scene and there were no intruders.
Now, beyond that, and there is more sadness in the way this was handled. What about the blood that was not even identified? Yes, there were items of blood that were found. Dr. Thornton testified here that in the children's rooms he observed blood which had not been processed nine and a half years later. Now, I don't know that that would solve the case one way or the other. That is not the point of saying that. That is not the point of what Dr. Thornton pointed out to you. What he is saying is deductions and inferences from an improp-erly processed crime scene, and that it cannot support the conclusions that the Government has.
What about the hairs and other trace evidence here? I don't know whether anybody here has had any experience of owning a horse or pony. How many horse hairs were found?
One. As a matter of fact, they quoted that one human hair and one horse hair was found.
What does that tell us? The family had been out repeatedly to see the pony and back again.
What does it say when they only found a singular horse hair--that they by no means pro-cessed all of the places on the floor where these people were moving and where they were about and where they kept their clothes. They processed selectively. They looked in certain locations. Again, Osterburg says, "In four and a half days to process this crime scene, you should have every single piece of trace evidence--every single piece of that physical evi-dence found and located in that house." It is inexcusable. It is a product of a select divi-sion--we collect what we want.
Now, let's talk about the Government--I want to talk now about this theory that we heard this afternoon about the body carrying around--this musical body of MacDonald striking them with a baseball bat. He would have hit Kimberly with one blow and that the other blow was against Colette. I want to ask you, members of the jury, if you have heard any evidence in this case that in considering the location where Colette's body was found and considering where the one can reconstruct this--by a scientist, of course--and considering where Dr. MacDonald should have been standing to meet the theory, was that club long enough to reach back to where Kimberly MacDonald was? Just stop and think about that. They say, "While he got her here and the child there and the adult there," is it possible? Where are you hearing that for the first time--from a witness from the stand or from someone who has done a scientific reconstruction of the crime of the position of where these things could have hap-pened? No. You are hearing it from the advocate of the other side of attempting to put to-gether a theory for which there is no substantial credible evidence.
If Dr. MacDonald carried his wife from Kristen's room with the sheet, as they suggest here, and the bedclothes, why are there not more fibers and threads on that sheet? As a matter of fact, there were no fibers and threads on the sheet, if he is supposed to be carrying her with that sheet. Why, if the pajama top was torn in Kristen's room, does it have the least number of fibers and threads? Why are there none on the floor in Kristen's room? Now, con-trary to what the Government has said repeatedly--where they said, "Why doesn't MacDon-ald explain all these things," the answer is Jeffrey MacDonald is not responsible to answer any of these things. As a matter of law, that is not his burden or responsibility. But more impor-tantly, there is the matter of logic. How is he to explain matters which could not possibly have been of any importance, such as where he had a fiber on his hand or garment, where he was when he tore a precise piece of fabric from his body at a given time?
The matter of this moving of the body again with the sheet: if, in fact, Colette's body was picked up with the sheet or the bedspread that we have here, why are there no smear marks of blood? Her quantity of blood in Kristen's room is substantial. If the sheet is put over here and in some fashion around her, why are there no smears on the floor, why are there no smears on the sheet in the gathering up of the body? Why did that not happen? Again, I am sure that the Government will have another theory about that.
The last thing I want to deal with about the Government's physical evidence is the only really new presentation in the case. Witness after witness that you have heard and saw in this case have all told you how they testified before in 1970--nine and one-half years ago in the military proceedings. Nobody has any new physical evidence in this case. What we have is Mr. Stombaugh's interesting testimony--not new evidence and not new physical facts--but what he has done in the case.
I would like to start with the display right here because if anything tells us about the limi-tations to determine the value of Paul Stombaugh's testimony, it is this particular display (in-dicating). It is the 48-into-21 holes demonstration. First of all, let us take him at his sworn word in front of the grand jury. What does he say he did? "So, it led us to believe quite possibly that maybe she was stabbed through the pajama top. What we did, we re-folded the pajama top exactly as it appears in these pictures." Your own eyes tell you that Stom-baugh never, never did what he said in the sworn testimony at the grand jury. Of course, when he came into this Courtroom, that is not what he said.
He backed away so fast from his sworn testimony that it should have been an embarrass-ment to the Government. I cannot even tell you to this day precisely the words that he used to explain the "approximation--proportionate--we turned the sleeve inside out" statement that he made. The answer is--take a look, if you will, at the bottom display. I've taken the grids off so you can see the use for identification.
Members of the jury, Stombaugh's first and last failure is the fact that he didn't do what he said. Those are his words. That is not the Defendant's lawyer telling you to say that. That is not the Defendant. He said "exactly." And it is absolutely absurd. It is absolutely false. It is absolutely incredible. Compare this display with that and you will recognize that there is no substantial similarity. Compare this display with this one here made in 1974.
There is no substantial similarity. Look at the layering and the turning of the fabric. Look at the position over here. What are we talking about? I mean the fact that we are devoting five minutes more to this is to say that we are going into an absurd situation where someone says something that is not so because we did it exactly--our own eyes tell us that it is not the same thing and that we continue talking about it. I submit to you that nothing more need to be said about that display than what is said to you by your own eyes looking at it.
Now, the second point. If you fit 48 into 21, what does that mean? Did you hear any-body who was a scientist in criminal cases--forensic scientist or criminal--say to you that it would be a valid way of determining whether or not Mrs. MacDonald was stabbed through the pajama top to line up the fabric over the holes of the body and come up with 48 to 21? No. No scientist--no scientific criminal investigator ever asked that ludicrous question. Who asked it? That lawyer and another lawyer asked the question. I said to Stombaugh, "Well, didn't you question the fact that you weren't going to also have the pink pajama top under-neath it also?" He said, "No." "Well, didn't it worry you that any kind of inference that one would draw would be totally invalid because of the fact that the way that Mrs. MacDonald's body was found--the way Colette was found--in a pajama top of her own and in blue paja-mas and holes--that is, you have got to make them all fit together?" "No." "Why?" "That is what the lawyer--the partisans for the other side--asked me to do, and Shirley Green and I produced it." That is not scientific evidence. That is sheer fakery. There is no basis for that.
It gets worse--it gets worse. Stombaugh testified--contrary to my recollection of what the Government said--Stombaugh testified that he identified a certain number of holes as being exit holes in the pajama top and a certain number of holes as being entry holes. John Thornton testified and the Government never called either Stombaugh or Shirley Green back to deny it that when they did--that was following Shirley Green's notes--that she used exit holes and entry holes and exit holes and entry holes and totally disregarded the principal finding that he made. Yes, Stombaugh did not identify every hole as entry or exit holes, but a dozen of them, he did.
Shirley Green did not follow his findings. How in the name of heaven and rationality or jus-tice are we supposed to say that you should draw any kind of inference from a demonstration that demonstrated nothing in the first instance, and in the second instance, to state that it is false on its own terms. It doesn't do what it says it does. That is not the worst part of it yet. It is not the worst of what they have done here.
The third and final coup de grace of this piece of pseudo-science is the fact of--I asked Ms. Green, "When you did this, did you bother to check as to whether or not the hole on the top..."--you may remember those drawings--considering the diameter of the holes--the holes are not all the same because an ice pick doesn't go all the way into all of the holes because sometimes the front part of the ice pick or if the tip goes in which is a narrow diameter and sometimes up to the hilt--I said, "Well, then, did you bother to account or tell us whether or not when you put one of your little pieces of wire through it whether or not you were putting a small medium size hole or a large size hole and a little hole together? Did you even bother to check? Why?" She never answered that question. "Well, nobody ever asked me to do that." Now, that is supposed to come to you as part of a scientific deduction in this case to lead to this theory that Jeff MacDonald stabbed his wife in some pointless and absolutely mo-tiveless--absolutely ludicrous statement that he stabbed through a pajama top, putting aside that there is no explanation and no rationality to the whole idea.
On every basis you can think of, it is a fake. Now, those are not easy words, but you ought to draw a conclusion. They did not in any way come back in here and say, "John Thornton made a mistake. John Thornton did not understand what Shirley Green did." They did not because they couldn't. This piece of evidence strikes me as the clearest singular ex-ample of the distortion in the name of pseudo-science done by the Government. It is an ex-ample of a demonstration which no scientist says could prove anything valid. No criminalist says that is the way we understand the thing, done for lawyers and not any finding on pre-cept and they trot it in here and the Government has the gall to stand here and say, "Mem-bers of the jury, convict MacDonald of first degree murder. We have proved our case beyond a reasonable doubt. We are going to show you this whole story about how the pajama top got holes in it." It is not true. That is beyond my belief how responsible advocates could even do that.
That is not the worst of it. There is more. There is more. The impressions. Stombaugh taught us one thing. We had a very interesting discussion; didn't we? You and I can see what he saw. He never even used a scientific lens and he never even used a magnifying glass. His impressions analysis was eyeball analysis. When we went through it, he said, "Yes, the jury can see it." I ask you, members of the jury, to consider what Stombaugh said is supposed to be a sleeve compared to what Chuck Morton said.
You have this demonstration before you. You see how it was done. I only suggest to you that the rationality and the clearness of what was done is such a contrast to what Stom-baugh said as "Take my word. I am an impressions expert." By the way, what is an impres-sions expert? He testified in 300 cases, he said, some of which, not all, hairs would be ap-parently his work and some of which he could recognize a hair as an expert in impressions, so he says.
"Mr. Stombaugh, would you tell me, please, the last case in which you were recognized as an expert in impressions?" "I can't remember." "Well, name me one case that you have ever testified as an expert in impressions?" "I can't remember." This is the same Paul Stombaugh who came into this Courtroom as the former head of the Chemistry Section of the physics and chemistry branch of the FBI, the man who got on the stand and said, "Yes, when I was at the University, I minored in chemistry." That was a very minor minor, because his tran-script shows that he minored in physical education and his transcript shows, can you believe it, that the head of the chemistry section had a single course in chemistry in his years at the University. He had one other course in physics which he got a "D" for.
MR. BLACKBURN: OBJECTION.
THE COURT: Yes, the jury will remember what the testimony was. I think the OBJECTION to that question was SUSTAINED as the Court recalls it.
MR. SEGAL: Well, members of the jury, that is up to you to recall the qualifications of Mr. Stombaugh. One thing that is probably beyond any doubt is that he never had another Uni-versity level course after he left the University. He said that from the time he left college and graduated with a Bachelor's degree, he never took another course. That is the person who comes in here--none of what he has to answer anyway--he comes in here and says, "I am an eyeballer. I am an expert eyeballer." What can he see that you can see as well as he can? What else did he say?
You remember the situation where he says, "This blood stain was made after the pajama top was torn"? The story is interesting for this point also. I said, "Do you mind showing me, please, where exactly--do you mean these lines took place before or after? Show me?" He stared hard and he circled it red for the Government and yellow for me. We all stared at it. It is one of the exhibits that we have lying around here. I said, "I can't see that well. There is some better way." He said, "Oh, a light box." Lo and behold, he produced the light box for us. Take the pajama top and put it on and what did he show us? He looked and he looked and he said, "I can't see."
Now, that is the kind of evidence that you are being asked to say that Jeffrey MacDonald is guilty beyond a reasonable doubt. The presumption has been stripped from him. That is the new evidence. That is the difference between 1970 and 1979. Paul Stombaugh and Shirley Green coming here and doing sticks and coming here and doing their impressions and coming here with just unbelievable and incredible and unsupported opinions, none of which they have ever performed any demonstrations or experiments on. What is scientific method?
Remember, we asked Shirley Green, "What is scientific method?" Her response was, "Doing things a scientific way." That wasn't meant to embarrass her, but it was meant to show you that there are scientists who know something about criminal investigation and the solutions to crime.
Now, you saw something from Vincent Guinn, John Thornton, Chuck Morton, and James Osterburg. Now, the United States Government, the prosecutor's case was not short-hand-ed. If they thought they could find somebody who could back up anything that Stombaugh said, back up an experiment invented by two lawyers--I dare say they have spared nothing else in this case, the Rolls-Royce of all models, the best of all photographs--where was it?
The answer is that it doesn't exist. It doesn't support their conclusion in this case.
One of the terrible, terrible things about this theory is that they ask you to put aside your common sense. I want to just run through for you now this time frame sequence of the acti-vity that in the last 15 minutes of the Government's speech, they said Dr. MacDonald did not account for.
We know that the persons involved--Colette, Kristen, and Kimberly--died about 3:00 o'clock in the morning. That is what the two pathologists tell us and it is as close as we can get to it. We know that at the other end of the time frame around 3:40 or 3:42 a.m., there was apparently the call to the telephone operator as to help wanted at the MacDonald house--Jeff's call to the operator.
Somewhere in the 42 minutes, this is what had to happen. First of all, he had to run around and move the bodies. He had to run and get the bedclothes in the master bedroom.
He had to move Kimberly to her room. He had to get the blue pajama top and put it over Co-lette and stab more holes in it. He had to get the white Hilton bathmat and put it over her.
He had to run to the living room and stage a crime scene and make sure that the picture by the child was hanging out from the coffee table. He had to race to the back door to get rid of the weapons. We will talk about that one, too. He had to wash up in the bathroom. You know that happened. He had to get the surgical gloves and write "pig" on the wall and then do something with the balance of the blood, then stab himself, call for help, give mouth-to-mouth resuscitation to his family, and concoct in the meanwhile--he did all of that in this time frame--this whole incredible fantasy that they call a case. It ought to make everybody angry that nine and a half years after the facts, this is what is being offered in the case to-day. That is just beyond belief.
When did he concoct this? When did MacDonald do this? In his rage or in his calmness? Before or after? Well, I don't know. I don't know where in their theory they sustained that--certainly not sustaining it beyond a reasonable doubt. How could anyone stand before you and say that, "I, as a legitimate advocate, can call upon you to render a conviction in this case on that kind of evidence"?
Are the facts consistent to Jeff's story? I think there are lots of facts. I told you earlier, I think, what I think the reasonable conclusions could be about the living room and the fibers or lack of fibers there. It was a tear down the center and you know that there were very few fibers--two or three. You know all the things that went on here, and I don't have to be-rate that again. We know most critically that no one ever disputed that Jeff said that he fell here (indicating) at the steps and that is where Shaw found fibers. That is an appropriate place. It is consistent with what he said. We know there could have been more there. We know all about the people that were in the house. We don't have to go into that again.
There is no reason to think that Jeff MacDonald was faking his wounds. The doctors have testified in the case--the ones who have been asked questions--saying that the ice pick wound that caused the collapse of the lung was a life-threatening injury. One of the most important things is that at no time has a single witness that has been called by the Govern-ment and the Defense ever said that Jeff MacDonald exaggerated his injuries. No one ever said that they thought he was faking or making a big deal out of it. As a matter of fact, there was a lot of expression about his kind of saying, "Gee whiz, it doesn't seem like very much, does it?" Understand the reaction of having seen your family in the horrible slaugh-tered condition that this family was and then looking at one's self, but in all those injuries, nobody believed that he was putting it on and no one believes that he was trying to get sympathy or some kind of feeling for an injury. No one believes anything but that he was reacting rather responsibly. Did he fake it? Did he fake his symptoms when Mica came there? One of the interesting points is that Ken Mica said that when he found Jeff MacDon-ald lying on Colette's body or next to the body, his teeth were chattering. One could, if one was so inclined, say, "Well, that is fakable. One could fake that kind of phenomenon. That is certainly not beyond your ken."
What else did he say? The unfakable fact that his skin was cold. I went to some great pains to ask later on of Agent Shaw of the CID about the temperature in the house. You may recall that. He said that it was about 75 degrees. You have here fairly solid evidence in which you can conclude that the injuries were not exaggerated or not faked and that the coldness of the skin was consistent with the nature of Dr. MacDonald's condition and that the house would not have been a source of that because the house was warm according to Agent Shaw and that nobody ever said that Jeff tried to make a big deal out of his own in-juries.
Then, what happens in the hospital? The Government claims, "Well, the hospital didn't really get worked up." Well, there they got upset. Merrill Bronstein, a friend of Jeff MacDon-ald, said that he responded more to the trauma of the loss of his family and went home later on to see the whole family that morning and changed understandably, but what happened in the hospital was that Dr. Jacobson first did a seven-to-eight minute examination of Dr. Mac-Donald.
Jacobson's examination in which he did not see all of the head injuries that had been not-ed by other people and then was passed over to Dr. Gemma who put the tube in. Gemma says that he did not re-examine Jeff. He took what Dr. Jacobson said. How long did Jacob-son have with MacDonald? He says seven to eight minutes.
From that beginning point, the Government will argue consistently that MacDonald didn't have all the injuries and that in a seven-to-eight minute work-up, that was enough to note every injury. Here, Dr. Jacobson, among other things, giving a sleeping medication and a sedative to Dr. MacDonald with a head injury. Everybody raised their eyebrows when they heard that. Whatever was going on, we know that the medical records at that time can't be the base of what the Government can successfully argue to you, that Dr. MacDonald was ex-aggerating the injuries and did not have, as was testified here to the horns and major wounds were testified to here and the injury to the rear of the head--three head injuries--rather than as shown by the lesser number as shown in the medical charts. The medical charts reflect what happened. There was distress. There was considerable personal concern for the safe-ty of one's own family in the hospital. There was one work-up and not one of these doctors, either Jacobson or Gemma, ever re-examined MacDonald when things were more calm to see what did he have--two injuries in the front and one in the back of the head or did he have just the single head injury that was observed by Jacobson in the beginning.
One last thing that I want to point out to you about that is what did the Special Forces psychiatrist, Dr. Rider (phonetic), say in the medical chart? He didn't testify personally, but it is a part of the record of the case. When he saw Dr. MacDonald, Dr. Rider said in a kind of cryptic medical language that tells us so much, "Normal grief process." Those are the words of the medical record. It is not the kind of evidence to support the conclusion that Jeff Mac-Donald was faking, faking his feeling about his family, faking about his injuries. What it sup-ports is the opposite conclusion and inference that the Government's case is built upon sand
--a house built upon sand.
The Government wants you also to consider the fact that the family is totally destroyed and Jeff has relatively and undoubtedly small injuries in contrast. His crime, as I said, is that he wasn't hurt enough and that he should have died.
As a matter of fact, if he had done all of the things he did and then died from lack of at-tention--they never come there--then the same physical evidence there exists. Think about that. If he had done all these things that they said he did and had died, the CID would have come there and they would have found the same crime scene and what would they have concluded then? Murder-suicide, alien intruders, or scratched their head and not know what to make of it because they don't have an easy and handy suspect--one of the proper prob-lems for circumstantial evidence.
You can look at it and stare at it all day long and draw all the inferences you want. You can draw conflicting inferences. The physical facts don't speak. It is the lawyers who speak about it. I suggest that these facts do not speak in any way that allows you to draw a sound conclusion beyond a reasonable doubt.
Why did not Jeff MacDonald have more serious injuries? The Government wants to know, demands to know. There is no burden to answer at all. I'll suggest just some reasonable hypothesis. First of all, this was the only male in the house--the only strong physical person.
Who did the attackers deal with? They slaughtered a pregnant woman, slaughtered an al-most six-year-old child, slaughtered a two-and-a-half-year-old child. They were easy prey. A series of things happened that saved MacDonald's life to make him prey for the Govern-ment's counsel.
First of all, he was a strong man. Secondly, he was the only person in the house in a po-sition where he was somewhat protected by the placement of the furniture. Where you can see in the master bedroom coming in through the door here (indicating), there was no inter-ference coming straight to the bed to attack Colette MacDonald. There is no interference in the other rooms. Here, with Jeff's head at the far end of the wall, the coffee table in place, what do you have here? People standing at the head. The first thing that stopped them, then, is that there was no immediate quiet, stealthy access--number one. Number two, this is the only person in the house who was warned that there were assilants there. The cry of Colette, the cry of Kimberly gave the warning to Jeff MacDonald. If the others had been warned, perhaps the noise and perhaps the excitement and perhaps the turning on of lights might have changed the day, but they had no warning.
Because Jeff had the warning, the cries from his own family, is that to be held against him, the fact that he is a man and he was defending himself, that is held against him, and you are asked to draw the inference that this is fakery on his part and it is concocted and it is evi-dence beyond a reasonable doubt from all those points.
Now, why was he not killed by the attackers? Why did they leave him to live and identify them? First of all, there was a struggle. There is furniture turned over. There are people now--there is action going on. There is a pulling and tugging and heaving and hoeing.
The woman is saying, "Acid is groovy." We are talking about LSD. If none of you have any knowledge about it, you certainly heard from Dr. Hughes yesterday. No one quarrels with Dr. Hughes' description of the mental state of people on LSD. Certainly, they can do all these physical acts. There is no question about it. What is their mental state? Paranoia?
That is, all of a sudden, you hear a noise and all of a sudden, you hear a struggle and now you--there is concern. Are the voices there? What else is going on? There are all of these possibilities that occur because you are an unstable and unpredictable person. You are on drugs. That is a reasonable inference for you to draw from the case. Why would they not want to get out of there as quickly as possible, having met the first real resistance in this case?
Finally, about Jeff's wounds, and I say that because they speak for themselves. I don't say that they are more or less than what they are. Those are the injuries he sustained.
They are surely painful to a man to be in his home where his family was destroyed, and, in fact, in contrast to have survived them. That is enough.
His injuries did take place. The puncture wound to the lung was life-threatening. There is no exaggeration. What does the Government say about the wounds? That Colette scratched, perhaps, Jeff in this faked, made-up struggle for which there is no basis. Well, where was the appropriate scientist who came in here and told you that? An advocate for one side--a lawyer came in and he said that in his pseudo-opinion that that is what happened. But you, members of the jury, are required to find the evidence to support it and find yourself per-suaded beyond a reasonable doubt before you accept it. I suggest to you that it is just simply inconceivable with anything here on the record to support that conclusion.
Now, the Government premises its case about all of this physical evidence on Dr. MacDon-ald's statements. We have statements in this case to a rather substantial degree of the De-fendant. Here they are. I don't want to harp on this, but I think it is fair. I am sure that all of you have heard from time to time persons involved in criminal investigations refuse to tes-tify, and probably, like most people, you simply think, "Well, the person must want to hide something." You have seen an extraordinary case. Here is Jeff MacDonald who has never once refused despite all of the circumstances and has never once refused to talk with any-body in an official investigative capacity.
In April 6, 1970, he was warned by the CID and they gave him the Miranda warning and talked with him several hours despite that. At the Article 32 proceedings, he was not re-quired to testify. He testified at length there. Then, in 1971, when he was out of the Army and honorably discharged, the CID was cranking up a second investigation and they come to him again and warned him of his rights and he talked again.
Then comes the grand jury. There were three volumes, six days of MacDonald trying to talk sense with Government prosecutors who are determined to do anything but sense. What did they do? You can just picture them going through and looking for something, looking somewhere, trying to find it, "Ah-ha, we have got something. We have got a case. We have got a word. We will use it against MacDonald. Put it in the blue book." They put together out of all these statements which when you heard, I am sure, the other day in Court, you must have wondered what is anybody saying that is inconsistent? They have got lots of copies of these and you can read them if you want. I am not going to go over all of the statements. I think they stand for what they say.
They say the following. "This is the best recollection I have. I don't remember all of the events." God, does anybody honestly expect you to remember them all? "I will try to cor-roborate them. I think this could have happened. You asked me about this. That is possi-ble, yes." Nobody--very few of the things that Jeff has said about the events of that night are etched in granite so that you may say they either are or are not. You will remember that the episode took a matter of seconds. The fight in the living room was a matter of seconds.
The rounds through the house took seven to eight minutes.
The first significant question--the first question by Mr. Caverly of the FBI in the hospital--he asked to put it all in order and said that he was not coherent, which means he was not logical. You know the amount of medication that Jeff had. I don't have to go into that. You know what the effect of the medication is. Six weeks later, finally, the CID gets around to the matter. They want to talk about what? The assailants? No. Have they ever asked MacDonald to come look at a lineup? No. Look at any pictures? No. They wanted to talk about which room first. Where did the tear take place? From there on, you have this kind of track record of going and picking and hunting and finding, and after nine and a half years of voluntarily testifying--submitting to pictures, give hair samples, do every damn thing they ask for--and they come up with this. They said, "Here are the precious words that show Mac-Donald is inconsistent." What will it be?
If you care to, members of the jury, I submit that you heard all of those words read to you here in the Courtroom out loud. I do not believe that you have heard anything beyond a reasonable doubt that shows significant inconsistencies. What you heard was "could have been" and "it's possible." I've never pretended to know and what I even expected to know about the trivia that they want to build the case on. I want you to contrast something.
I now ask you to bear with me because I want to ask you what do you have to say about the following inconsistencies by Government witnesses? If you hold Dr. MacDonald by the standard which the Government counsel says, "You must be precise about the seconds of the fight and the seven-to-eight minute tour of trying to treat your family and your own injur-ies." You are only interested in getting your family together and getting help there. And if you hold Jeff precisely to what he said, then what standard to you hold the Government wit-nesses?
Mr. Connolly--what did he say? He testified here, "I found the knife in the master bed-room." The trouble with his testimony is what? Mr. Shaw found the knife in the master bed-room. When cross-examined by me about that, he said, "Oh, I handed the marking pen to Shaw to circle it," but his report--his sworn CID statement said, "I found the knife in the master bedroom." What shall we say about Mr. Connolly? What shall we say about him? Ap-parently, the Government says nothing because they don't hold him to any standard. Only Jeff MacDonald gets held to a standard from seconds of a fight to minutes of trying to deal with his family.
Mr. Ivory testified that he named for us all of the people who came to the house. Remem-ber, I said, "Who else was marching through that crime scene?" My final question to him was, "Anybody else?" He said, "No, that was everybody." He was indignant and really irritated with me.
"What about the chaplain?" Why didn't we hold Mr. Ivory's statement to the same test?
You must always be correct. Ivory is supposed to have notes and everything else, but he falls flat on his face. He doesn't even know the people at the crime scene down to the chaplain.
Stombaugh--why don't we hold Stombaugh to the same standard? He said to the grand jury under oath and it is exactly the same in here--"it is proportionate"--"We turned the sleeve inside out." By no means, does he claim exactly. What should we say about Mr. Stombaugh's testimony?
Ms. Green's testimony--"I followed Stombaugh's findings about entry and exit holes." We know that is not to be so either. I think it is a reasonable conclusion for the jury that Dr. Thornton disproved that beyond any doubt.
"The crime scene is not disturbed," and picture after picture shows you while he is in the house, in charge, that pillows are moving, the glasses are turning, and things are not staying the same. Is the standard that you hold Mr. Ivory to the same as that of Dr. MacDonald?
Mr. Caverly, a minor matter, but only because of the significance of it to point out the double standard. None of these people suffered injuries or stress but are professional inves-tigators with notebooks supposedly. Caverly, for some reason, is just fixed on the idea the first time he saw Jeff in the hospital was at 2:25 p.m. The nursing notes which are in the record say that the investigators were there at 1:45. Now, Caverly had no notes. They were all burned because that was the old FBI policy--to burn the notes.
Nine and a half years later, he cannot shake 2:25 and will swear by it, but the nursing notes will stand forever. They state he is wrong. What shall we hold Mr. Caverly's standard?
Mr. Caverly--"One medic rode with Kimberly and Kristen." Mr. Shaw--"Two medics rode with Kimberly and Kristen." What is the standard? My last question: "They put both children on the same stretcher, right?" Mr. Ivory perceived when we developed that point that there was the possibility of contamination--physical evidence and contamination when the two children touched. Mr. Ivory said that they did not touch.
Mr. Shaw, later on, said, "Yes, I saw the bodies and they did touch." What standard do we hold the Government witnesses to about their conduct--professional conduct--investiga-tive conduct and then to stand here and say that they are building their case around the in-consistencies allegedly claimed to be of Dr. MacDonald? That is just simply not conceivable to me that the jury can find beyond a reasonable doubt that: one, that there are, in fact, significant inconsistencies; two, that there are matters which are understandable and rational and that no reasonable person given the circumstances would be able to answer these things; three, do we not give Dr. MacDonald credit for at least being open and willing to talk in spite of it to his accusers year after year after year? It was a vain hope and bad advice, I think, that perhaps if you talk sense to people, they will believe sense.
The Government has done a great deal with the pictures of the wounds of Dr. MacDonald taken in 1974, during the grand jury. You remember that you have got those pictures around here and we have got Dr. MacDonald pointing here, here, here, and elsewhere (indicating). They want you to stare at them. I don't know what is to see there. More than four and a half years after the injuries, what did they expect to find? I mean, first of all, you should get to the fact that they were given voluntarily. Jeff could have said, "No way. You will never listen to sense. You want me to answer your unanswerable theories," yet, he submitted to that process. Those are not the only things that are hard to see in this case. That is, to see four and a half years later the injuries.
What about Mr. Medlin? The invisible ridge lines on the footprint on the floor. Why are we not holding the Government with its witness, Mr. Medlin, to the same test? Why should we believe Medlin for a second that he saw ridge lines on the bloody footprint on the floor and that those ridge lines in his mind were capable of being compared and identified as Dr. Mac-Donald's? Nobody else saw them. Why weren't they photographed? Absolutely no valid ex-planation. Dr. Osterburg [sic] has made it clear that anything that you can see with your eyes, you can photograph unless you don't have the competence to not only photograph but to do the job as a fingerprint examiner. Let's hold Medlin to the same standard. Invisible evi-dence? He can't even get it sawed out of the floor to take it back to Fort Gordon where maybe they could do something with it without it falling apart on him. Why don't we hold the Government like we should because the burden is theirs in this case?
Stombaugh's pocket--another piece of invisible evidence--I talked to you about it before
--the blood stain which the Government says that you can see if you look real close. That is the one with the light box that we could not see. Let's hold them to the same standard in this case. It just does not make any sense that Dr. MacDonald is faulted and criticized. Ap-parently, if you listened to that speech this morning, in nine and a half years, Dr. MacDonald hasn't done a thing right. His lawyers don't do anything right. We are just looking in the wrong direction. The only thing he has done right is to try and talk to them and try and co-operate with them and to try and tell them what he knew and to hope in the name of justice and sense that somebody would listen.
The Government says also that there were no intruders in this case. There is no proof of intruders in this case. The list of evidence that supports Jeff's story will surprise you when we pull it all together right now.
First of all, the latex glove. I stand on Dr. Guinn's testimony. I stand on the gauntlet that he threw down to the Government as to, "Why, if you think that I am wrong, you don't go out today in '79, and check my findings?" It is an unanswered challenge. Where did they come from? They came from some other source than Jeff MacDonald's home.
What about the fiber found on Jeff's glasses in the living room? They have tried and tried and tried and they cannot find any source from within the MacDonald house where that fiber came from. Where do they think it came from? It flew in the window? Nonsense. You have a right to believe that that fiber is one more piece of physical evidence that supports an op-posite inference from what the Government wants.
Unidentified hair--there is hair in this case. The Government has found and they have had MacDonald's sample which was given to them and they still, to this day, cannot ascribe it to any member of the family.
There are fingerprints. We talked about the ones that were found and that were not lifted properly, the ones that were found and were not identified or partially or not complete, the ones that were never found because they did not process the crime scene.
What about the candle wax? Three different candles produced three different types of wax. They went and they rounded up everything in the MacDonald house. They found 14 candles. They took it to the lab. When they got done with their best efforts, what did they find? That the wax that was found in the MacDonald house--in the living room--Jeff says that he remembers a woman with a flickering light--which I think is a reasonable conclusion where they are talking about a woman with a candle. The reasonable conclusion from all that is this: that that is evidence of the truth. Now, what did the Government do about that?
The witness said, "Well, we didn't take that seriously because the wax was hardened." "How long did it take to harden," I said to the witness. "Three weeks." "When did you exam-ine the wax?" "March 6th of 1970." From February 17th to March 6th is three weeks. And he is surprised that the wax had hardened. What I am saying to you is that the reasonable conclusion that you ought to draw is that the wax found in that house unidentified to this day is consistent with Jeff's story of the flickering light in the hand of the woman.
The knives--the weapons--are consistent with the intruders. There is no one who has said for a minute that Jeff or Colette owned anything like the Old Hickory knife or anything like the old Geneva knife. As a matter of fact, it was Mildred Kassab who took a look at these weapons and pronounced that her daughter and son-in-law would not own bent, rust-ed, obviously mistreated instruments like this from that stand right there. She was asked about the weapons and pronounced them not in her daughter's house and not in her son-in-law's house and she had never seen them and didn't believe they were the type of things that they would have.
No one else in this case, Pamela Kalin Cochran, or anyone else has never identified those weapons in the MacDonald house. How did they get there? How did they get there? Physi-cal evidence doesn't walk in by itself. The ice pick--a fascinating piece of evidence. There are two people out of all of the myriad of people availed by the Government who believe that they think there was an ice pick in the MacDonald house. Again, Mildred Kassab says that she believes there was an ice pick, but it did not look like this one. That is my recollection of her testimony. I ask you to search your own recollection of what she said. It boils down to Pamela Kalin Cochran, a 15 or 16-year old babysitter back in 1970, and now a young woman, comes in here and admits on the stand in 1970, that she was shown pictures but could not identify any of the weapons. She was asked about it but did not remember ever seeing an ice pick in the MacDonald house. You would think that that would be the end of that issue, but you know, I guess the Government's theory is that if you go on long enough, you can wear somebody down--be it Jeff MacDonald or anybody else.
So, there she is. She goes to the grand jury in August of 1970--later than that--in 1974
--and in the morning, she was asked about the ice pick. She doesn't identify it. She doesn't recall an ice pick. Then, she goes to lunch and comes back and sitting there four and a half years later, she sees a picture of Colette MacDonald's body with the puncture holes on it and has her vision. She has the vision that now she remembers seeing an ice pick in the Mac-Donald house. Certainly, she can't identify this one specifically; but an ice pick in the Mac-Donald house. Can you say to yourself that you have confidence in that kind of evidence? Can you say to yourself that you really have belief that a person can have a vision of having handled an ice pick in the MacDonald house and four and a half years later on that basis when questioned about it when the crime took place by CID and by other persons connected with the military proceedings? Mildred Kassab says that doesn't look like the one. Pamela Kalin says, "I think there was an ice pick in the house but never thought about it until four and a half years later when I had the sudden flash insight." Can you conclude, members of the jury, that that is proof beyond a reasonable doubt that this weapon came from this house? I think not. Where did it come from? Where did the other knives come from? That is consistent with the intruders being in the house.
The club--there is a little bit of slippery business, I think, on the part of the Government here. Here, we have this wonderful model. I think this model tells us probably where the club came from, but you will never see it unless somebody perhaps gives you a guide book. I think the evidence would be fair for the jury to conclude that that club came from the Mac-Donald house and that it had been once part of a larger piece of wood. Where do you think that it came from?
On this model, members of the jury, every conceivable detail that anyone could want is on there. There is even the dangling telephone--the curled wire--I mean, of all the trivia to build in. When it comes to a piece of evidence that could have some bearing on the case, where, members of the jury, is the pit outside the back of the house where there was wood found and seen by CID agents? Please examine the great model here that is supposed to re-present the house in its critical detail so that we can work together and see and understand the crime.
There is a little piece of tape here--put here--and we asked another witness to point out just where it is. It is not even correct to mention it. There is no indication by the Govern-ment about where that took place. Look at the photos taken by the CID on February 17th. If you will look here, what do you see? Painted pieces of wood sitting in the back of the house. In fact, I will show you the larger pictures in a second that show the same thing.
Let me point out to you again that here is another black and white photograph showing more of the wood that the angle of the other one does not show. And lastly, of course, if the door was partially open here, apparently left that way by whoever left last, but it is fully open and what is there is lots more scrap wood--not under lock and key but just there.
If nothing else, it is reasonable for you to infer that the piece of wood that was used so brutally and monstrously in this case came from that little well outside the house here in the back. It is the well that the Government chooses not to show anyone and not to put on the great model here because why? It might just suggest to the jury that the model is indicating a source for this weapon that was not in the house at the time of the crime. You can get a better view further of that of how perfectly clear it is that here on the photograph of the back of the MacDonald house how perfectly visible it is to anyone coming that way in the di-rection from, if you will, anyone else's house that happened to live in Corregidor Courts com-ing this way and perfectly visible and seen all around.
Speaking about visibility, by the way, one of the other interesting gaps in the Govern-ment's proof beyond a reasonable doubt is where were the knives found? They were found out here (indicating). The club is found quite close by here (indicating). There are photo-graphs that will show that the knife was found over here (indicating). How did the ice pick and the knife get out there? Did Jeff come out and walk out here? What did he walk on? The sandy soil in which they were looking for footprints in? Did he have any dirt on the sole of his feet when Mica saw him and Tevere saw him and the medics saw him? How did he get it out here?
It is pretty clear from the photographs, I think, members of the jury, that you, yourself, can tell that there is no likelihood that it could be tossed out there and the angles are not clear enough to you, but there are more photographs here. Here, you have the ice pick at this particular angle underneath the shaded area by the bush here. How did it get out there? Look at the sandy soil. What do we know about that? Is there proof in this case that MacDonald in some fiendish plan, ingenious, while running from room to room and doing all these other absurd things that one would have to do, that he also managed to run out there and toss the ice pick under the bush and get back in and make sure that his soles don't show that he was out there and make sure that there is no footprints in the sandy soil out there? Good heavens, members of the jury, where is there proof of this?
There is more proof that there were intruders besides the latex, the fibers, the hair, the wax, the fingerprints, and the weapons. There is more. The list goes on.
Kenneth Mica, on the way, saw the woman in the hat. He recalled the floppy hat, rain hat. That is important not because anyone could draw any certain conclusion as to whether that woman was, in fact, a suspect in this case--that is not. Professor Osterburg, again, teaching us something about criminal investigation, points out a live person within five coun-try blocks of the crime scene at that time of day, that is the highest priority and anybody around has to be considered a suspect in general terms. If not in terms of a suspect of the crime, as a potential informant--did that woman see anybody? "Did you see a car go by? Did you see a blue Mustang by any chance? Did you see anything else?" What happened?
That woman's presence indicates that this area was not barren and not devoid of other human beings. Remember, the Government went to great pain with all the CID people who came to the house and the MPs, "Did you see anything on the way? Did you see any people on the way?" They were mocking the idea and really making fun of the idea that anyone could have been in the vicinity and that all this invention of four people was a figment of Jeff's imagination. Yet, here, there is evidence of a person and how does the MP and CID forces respond to that? There is not the slightest indication that anybody went at that time promptly to try and find that person and see whether or not that person had anything about them that might bear on this crime.
Then, there is Mr. Milne. I think the Government should be ashamed of itself for mocking Mr. Milne. They have made absolutely ridiculous what is a serious matter because it doesn't fit their bizarre episode. It is bizarre not because of the way it was told, but it is bizarre that people behave like this. You know, we live in kind of a sheltered world. We deal with people that we know that are our friends and our acquaintances in business. This is not that kind of behavior. This is bizarre.
He looks out of his window--he looks out of his door--it is open--and he sees three people with candles walking towards the MacDonald house. Now, what is the importance of that? It is important a number of ways. First of all, it shatters the Government's argument that it is absurd to think that there was anybody outside, you know, Corregidor Courts that night and that MacDonald is guilty of absolute fabrication. It ought to remove that issue from your de-liberations entirely to think that anyone would seriously question whether there could have been persons about who were not seen by the military policemen. I think some of you per-haps have never lived on a military post and have a kind of feeling that you are living in a safe armed camp there with all the MP patrols, but you certainly learned something about that. There is no certainty that such patrols existed and that they ever saw these utterly bizarre things going on. Why should Mr. Milne be ridiculed by the Government? I will tell you why.
The Government says, "Look, he saw this and didn't call up the MPs. He didn't call up the CID." I would suspect that you have a right to draw the conclusion that he had about as much expectation of getting one to come see him as Detective Beasley of the Fayetteville Police Department had when he called the CID and said, "Hey, I have got four suspects for you in the MacDonald killings." That is about as much expectation as anyone with hindsight should have had that anyone would have showed up from the CID.
He said he didn't call them. Why? He lived right in the immediate vicinity. My expectation was that the competent professional people would canvass the neighborhood. He was out of the Army by the end of April. He did not bother to call anyone about it. What is the reason-able inference that you might draw? He concluded that they didn't need him. They didn't need any information from people in the neighborhood. Why do you have to call them up? They know what they are doing, don't they? You know better. You know better than that. Why was he not to assume that?
Then, what happens next? MacDonald's case goes to the military proceedings and ends at the end of October of 1970, and there is widespread notoriety of that and it is over with and why would Milne have to call anybody then? When does he call somebody? When, to his surprise, he learns that the case is alive again. For that, he is mocked and made a fool of by the Government's attitude in this case. I think that is despicable of anything it tended to discourage a citizen from coming forward; and is to hear outside this Courtroom how Govern-ment counsel respond to people when they have information and wait for the investigators to do the right thing and hear that the case is over with, and then, when they come forward, to be abused verbally in that fashion.
What else do we know about the intruders? Is this really a ridiculous story--you know--poor people and the woman in the floppy hat as the Government continues to mock? You know, we were subjected here to the trashy articles from Esquire magazine. It is an article in which the only evidence is that Ron Harrison and Jeff talked about briefly because of the bizarre episode about Lydia and the swan and then it went on to other things. God, if they had only known when they started reading that that we would all be subjected to listen to that actual piece of trash, they would probably have passed the article over more quickly.
The important thing about that article is this: the Government wants you to conclude that in California, there were these bizarre happenings going on and that MacDonald read about it and that planted this wonderful, you know, masterful idea in his head. And then P.E. Beasley said, "I read it, and that is a description of a part of the counterculture underworld back-street life in the Haymount Section of Fayetteville. It is drug culture Fayetteville 1969-1970."
Witchcraft--can you imagine killing cats and goats and that bizarre kind of behavior, you know, drugs of every kind, paranoid behavior, violence of all sorts. Beasley makes it real. I mean nothing could be clearer. He is a professional police officer for 20 years. That was his beat. That was the area where he worked on drug matters in that area. He comes and says that there is nothing in that article that they read that one needed to know about to know that "Acid is groovy" and "pig" was the word on the street. What a trashy idea that we are subjected to. The importance of it is this: that the sickness that is reflected in that article--this kind of sick mind and behavior--was a disease that was just as present outside of Fort Bragg in Fayetteville as it was any place else. One did not have to read Esquire. One only had to be alive in America to know of Charles Manson and the terrible killings there. Even Helena Stoeckley who doesn't read but heard it on the radio and didn't read books but knew about it that way knew about Manson and the rest of that. One didn't have to bring in and throw the article and argue to you beyond a reasonable doubt that this was the source of the idea that MacDonald had.
The truth, if the issue in this case was--how many people can you prove knew that "acid is groovy" was the term on the street and knew that "acid" was the term used by dope users for LSD and that all of these expressions and all this language was common on the street with people into drug abuse. We could all be convicted, I suppose, if that were the case. It is not the case. The red herring. It is meant to take--what about everything else in Jeff's house? What about the articles about saving life in magazines and medical journals? Why don't we read them all to you? I had a temptation to subject all of us to an endless reading of all the things in his house and say on balance, was the man thinking of life or thinking of death, but I thought better of that idea.
What else do we know about are there intruders? Is the idea of intruders real in this case? How about Helena Stoeckley and her boyfriend? Officer Beasley has taught us something about life in Fayetteville and that she ran with a man named Allen Mazzarole and that Mazzarole was a man he considered dangerous and a man considered violent. Helena Stoeckley, when she was in this Courtroom, can you imagine nine and a half years later, puf-fy-faced from hepatitis and has her arm in a cast because she has been beaten again by one of her friends. Is violence present in her life and the kind of monstrous violence that commit-ted the crimes here? You bet it is.
Dr. Hughes was here yesterday. What did he say? Under LSD, maybe the lights are flash-ing, but you see the light, you know, and you think that you can do it better than anybody else. You can do it. You can murder, you can commit violence, you can drive a car, you can play music, you can do all of those things. Helena and her friends--we will talk about them later.
What about Jeff's injuries? It is clear that no doctor with Jeff MacDonald's intelligence would stab himself in the place he did because just in case the person didn't get your mes-sage on the phone and the help didn't get to you, you would be dead. Now, what kind of brilliant scheme is that, to hide horrendous murders by taking an injury in a place where you just might die yourself? Jeff is either the intelligent man that even the Government concedes he is, or he is the lunatic who hasn't planned this out very carefully is what the Government's inferences would have you believe.
I want to talk to you a bit now about the last area that I want to talk to you about and then ask my colleague, Wade Smith, to talk a bit about something else. I will make it brief. The question here is what is the role of Helena Stoeckley in this case. Again, we are like liv-ing in a time warp. We see her nine and a half years later after. I need to ask you for a min-ute to try and go back in time, if you will, to 1970. How did she become an issue in this case? Is she an invention of me? Is she an invention of Jeff MacDonald? If you think about the evidence in this case, when the descriptions went out over the radio, who is the person that saw Helena and her band of fellow travelers as potential suspects in this case? Some defense lawyer? Some advocates of the Defendant's position do that, or did a professional police officer, P. E. Beasley? The answer is Beasley.
What else brings Helena Stoeckley in this case? William Posey, the pudgy man who testi-fied in 1970, and here again as a next-door neighbor of Helena Stoeckley and who puts her into this case, too, because he sees her leave around midnight on February 17th, and come back between 4:30 and 5:00 in the morning in the blue Mustang. He sees her run into the house. He saw her always before that time with her characteristic floppy hat, blonde wig, and boots and from that next day onward, never saw it again. Is he an invention of the De-fendant and myself?
Again, the Government makes fun. "Why did you come forward, Mr. Posey?" If you come forward at all, you get mocked. If you don't come forward because you think they don't need you, you get mocked. You can't win. You can't win until finally a jury gets to decide the case, and then, then there is a revolution.
THE COURT: Mr. Segal, you have five minutes left of your total time.
MR. SEGAL: My impression was that we had until 4:30, Your Honor.
THE COURT: Well, you have three hours and 15 minutes and you have used three hours and ten minutes of it.
MR. SEGAL: I am going to do injustice to Helena Stoeckley's role because I think I want you to hear what Wade has said that he wanted to talk to you about. It is a question about the one remaining issue in this case.
Just let me say this about Helena Stoeckley. Not only did Posey put her into this case physically. The Government says, "Look, she got rid of the blonde wig, the hat, and the boots because of harassment." Posey said that she got rid of it the next day. How much harassment could there have been by February 18th?
Helena Stoeckley was put into this case by people to whom she talked to, people in Nash-ville, Officer Gaddis. She was part of a crowd to whom "acid" was really "groovy." In 1973, she said, or '72, she gave it up because she said--remember the dialogue that we had--"I don't follow any man." I asked her about Manson and if she believed in following a leader and she said, "I do follow the drug. That is why I gave up LSD," because of what it did to her. Helena Stoeckley also told us about the rocking horse that she believes seen in Kristen's bed-room. The Government leaps forward with a copy of the Fayetteville newspaper, but you see, the trouble with that again is that it is a half truth. How does a Fayetteville reporter or photographer get up to the MacDonald house through the cordons of MPs with their arms curled and take a picture through the window? Wonderful protection of the crime scene. At last, he was at work--through the soil--through the sandy soil and a picture right away, but there is something in the picture that makes it different.
Helena says that the rocker was broken--the rocker was broken. That is not what the picture shows. How would she know that--how would she know about that, about the rock-er? There is much more that one ought to say about her. How do you explain on the day of the MacDonald funerals--people she says she never met--she wears black and steals a fu-neral wreath and never has before--she wears a black veil. Thereafter, she tries to get someone on the same day to go to the MacDonald's family funeral with her.
The Government's explanation, I suppose, is going to be that her brain was besotted by LSD. Look, you heard what Dr. Hughes had to say. You saw her here. She was a police in-formant not only in Fayetteville, but her brain was working in Nashville. She was reliable.
Beasley didn't say that her brain was besotted. She knew what she was up to. She was dealing drugs on the street. Her head was in some money. Her head was into the drug cul-ture. Why in the name of heaven did the Government not follow the lead that Beasley put in her hand on the next day after the murders and did not send a CID agent?
I wanted to talk to you about the picture in this case. There are many things that I want to touch upon. I ask you not to do this, members of the jury, to not conclude from the fact that I have not talked about so many other issues in the time available to us to conclude that there are not alternate explanations and alternate theories for this. I only want to leave you with this thought and then I am going to ask Wade to talk with you, and that thought is that it was never our explanation and it was never Jeff's responsibility to offer an explanation and never my obligation to offer an explanation, but we only point these things out to you to show you the existence of far more rational and equally acceptable alternative hypotheses to what the Government has here to say. Since the burden of proof is on the Government from the beginning to the end, I submit to you that they never have met it before and they do not meet it now. There is one remaining question, though, and that is the one that I want Wade to talk to you about.
THE COURT: Members of the jury, I am still here, but I haven't seen you all afternoon. Let's take our recess now and we will come back at 4:30. Remember all the things and don't talk about the case. Come back at 4:30.
(The proceeding was recessed at 4:14 p.m., to reconvene at 4:30 p.m., this same day.)
F U R T H E R P R O C E E D I N G S 4:30 p.m.
(The following proceedings were held in the presence of the jury and alternates.)
MR. BLACKBURN: Your Honor, the Government has, as I understand it, forty minutes left, and the Defendant is out of time.
THE COURT: That is right.
MR. BLACKBURN: We have agreed, since Mr. Smith has not had an opportunity to speak, to give him ten minutes of our time.
THE COURT: All right, Mr. Smith.
MR. SMITH: I am grateful for the ten minutes and I would ask Your Honor to tap the Bench, please, when ten minutes are concluded.
C L O S I N G A R G U M E N T
MR. SMITH: Ladies and gentlemen, they say that no souls are saved anyway after 20 min-utes. I have always heard that said, and so, with ten minutes, I should be able to save all the souls, if I have anything at all to say.
I wanted to speak to you today about a different approach to an examination of the case, and that is to put aside for just a moment the scientific aspects of the examination, but that is very important and I think it works and I think the scientific evidence in this case is good.
I think our scientific evidence in this case is truly outstanding, but there is a better way as far as I am concerned. That is to just, for lack of a better way to explain it, let your insides talk to you for a minute about the case.
What do you feel? What are you feeling about the case? In our Opening Statement, we said to you that this was a family where there were life motives and that we would show you that there were life motives. I believe that we have kept our promises to you.
Life motives, to me, mean things like this: working three jobs, having children, planning for a better life, acquiring new possessions, furniture, urging each other to be better, Jeff's urg-ing Colette to go to college to complete her education, Jeff's running and keeping fit, adding to the family, the fact that Colette was pregnant, and all kinds of other things that show that this family was teeming with life--just absolutely teeming with life--the animals, for ex-ample--the pony has been mentioned over and over again--the other pets that they had. It was a home where they were truly living.
It was not a situation where you so often read that he was a loner; he ws, as we look back on it, he was drinking too much; he was taking drugs; they had been fighting and argu-ing for months; she was always showing up with bruises; the children were always showing up with bruises; the children were battered, the children were sad--there was none of that.
There is no evidence that there was any alcohol. There is no evidence that there was any drugs of any kind in this man's blood; so, it is a situation where things were happening that were good. Everything was going well.
What has the Government been able to point out that would show to the contrary? Mr. Blackburn, I think, readily admitted that the fact that the child wet the bed simply--that just simply cannot be a reason for this man to have gone berserk and done anything like this.
The fact that he was with another woman on a couple of occasions, we are sorry about--he is sorry about--and we don't treat that lightly or flippantly, but surely, surely that is no rea-son for him to have gone berserk and destroyed his family.
Looking at an afterthought--something that happened later--the fact that he told Mr. Kassab a lie does not indicate for a moment that he would have destroyed his family. The prosecution in this case, I think, is in a terrible dilemma. I would assume that it is somewhat embarrassing to them, and that is that the most eloquent witness in this courtroom has taken the witness stand every single day, and that is that there is no motive. Don't you wonder why when you think about this--why did it happen? Don't you wonder when you are thinking about whether Jeff did it, why would he have done it? Can you think of a reason why he would have done it? There isn't any.
Now, the prosecution is not under any obligation to furnish a motive. The law does not place that burden on them. Nevertheless, that is natural law. That is law that we feel inside of us--every one of us. We fell that we can say to the prosecution in any case, "Tell us why. Tell us why this man would have destroyed his family?" Think about the photographs that you saw of Jeff with the family, Jeff with the children, Colette with the children, the children playing. Think about Major Moore arriving at an unscheduled lunch stop. Think about the children running out and grabbing Jeff and climbing all over him a few weeks before this happened. Think about how Colette came to him and announced with joy that she was expecting a child. Think about how they embraced, according to Major Moore, and how they walked into the house with Jeff with his arm around her and Major Moore walking with the children, talking and enjoying themselves at the lunchtime. Everything was going well. There was not anything going on in their home that you have seen in this evidence that would indicate that this man would do a thing like this.
The contrasts are incredible. The contrasts are fantastic. You think about this: that Jeffrey MacDonald lived his life and nothing like this ever happened to him; and think about the fact that he has lived his life since and nothing like this has happened since. It makes no sense. Don't you know--don't you know if something had been going on in that house that was bad, don't you know the neighbors would have observed it? Don't you know that Major Moore would have seen it? Don't you know Jeff's mother would have seen it? Don't you know when she was down there Christmas or New Year's and they went out together and she lived there in the home with them and don't you know at Thanksgiving when she was there that if something had been going on, if they were headed for a calamity like this, she would have known it. Others would have known it. I say to you, ladies and gentlemen of the jury, that if you will examine the testimony of the witnesses who took the stand for Jeff, they are little windows into that home, and you can look into any of the windows--the little windows into the home. All of the witnesses who came and said that they had visited recently there, they give you a window into the home.
If you want to completely disregard Jeffrey MacDonald's testimony and not think anything at all about it, but just think about the other people who testified and they will give you in-sight into what was happening. No motive. It is unbelievable. It is incredible. Don't you know that Jeffrey MacDonald could not have destroyed his children? Don't you know that that raises a reasonable doubt?
If you look at the autopsy photographs of those little children and think about what it would take to cause someone to raise a knife and destroy them--to destroy Kristen--not just destroy her but absolutely mutilate her--just beat her to death, thrust after thrust after thrust. It can't be true. He needs peace. He hasn't had it in a long time. You, as a jury, are immensely powerful because you can give him peace for the first time in years and years.
Thank you for hearing me.
THE COURT: All right. Mr. Blackburn, will you close for the Government?
MR. BLACKBURN: Yes, sir.
THE COURT: All right, proceed.
C L O S I N G A R G U M E N T 4:40 p.m.
MR. BLACKBURN: You know, I couldn't help but think during the last ten minutes listening to Wade talk about motive, you know, and the unbelievability of it all; and I suppose, in a way, it is unbelievable that a successful person might kill his family and that a person to whom his children cried "Daddy" might raise his hand in anger or rage or coolness, perhaps, and kill his family, but I can't help thinking back to what I said late this morning.
We don't contend--we don't contend that Dr. MacDonald killed his family because Kristen wet the bed. We contend, ladies and gentlemen, that the Defendant killed his family because events overtook themselves too fast. Think yourself for a moment in your own daily lives if you have been angry at someone, but not really meaning to be, and you have raised your hand--maybe to your own child--but you would never, you know, follow through. You stopped short. You didn't do anything.
Suppose when you are tired late in the morning or early in the morning and you are worn out and things just aren't going right, that you do raise your hand and before you can regret it, you have done something that is irretrievable. Everything else, ladies and gentlemen, we say, in that crime scene, flowed from that moment.
I don't say to you that the Defendant, as I said this morning, has always been a bad per-son. I don't say to you that for the last nine years, he has been a bad person. But I do say to you that on the early morning of the 17th of February, time stopped in the MacDonald home and for a flicker of a second, something happened, I think the evidence shows, which caused tragic events to unfold and the killing of the children was necessary for self-survival.
Mr. Segal, in his presentation this afternoon, attacked again--he attacked us, he attacked the CID, he attacked Stombaugh, Shirley Green, and anybody who has ever been with the Government, as I recall, was attacked. He said that our case was like a house built on sand. I suggest to you, ladies and gentlemen, the only sand in this case is that which was perhaps attempted to be thrown into your eyes to keep you from seeing the evidence in this case.
He said that you would write the final chapter and Wade Smith said that you might have the power to give the Defendant peace. We suggest, ladies and gentlemen, that regardless of your verdict--regardless of your verdict, whether it is innocent, innocent, innocent, or guilty, guilty, guilty, you don't have the power to give the Defendant peace.
He said that were were non-partisan. I suppose there is a grain of truth in that. We are advocates. We are pushing a point of view, but let me tell you why--because we believe it to be true. I am sure that Mr. Segal would not suggest that we would push it for any other reason.
He went over the burden of proof beyond a reasonable doubt, and, I think, implied to you that we had to show each little item beyond a reasonable doubt. That is not what we have to show. We have got to show you beyond a reasonable doubt that the Defendant commit-ted these crimes, however we do it. Whether we do it this way or that way or whether you believe this or believe that, you could throw out 90 percent of our evidence, but if you be-lieve the other ten percent convinced you that the Defendant was guilty beyond a reason-able doubt, that is okay, just so long as we convince you beyond a reasonable doubt that he did it.
He talked that we had mis-stated some principle of law dealing with the burden shifting from the Government to the Defendant. We did not mis-state that. We did say that he didn't explain it. You know, Wade talked a minute ago about what is inside. Well, that is all right. What is inside when the Defendant takes the stand and does not attempt to explain the unexplainable, when he is asked questions and doesn't give an answer and relies on his counsel to answer for him? We rely, ladies and gentlemen, and ask you to rely on the law of common sense. I will repeat it again this afternoon because it makes a whole lot of sense to me. Don't you know if he could have, he would have.
He says that the physical evidence doesn't say anything--it doesn't speak. It is only at-torneys speaking. I say to you that the physical evidence simply cries out an explanation.
I heard this afternoon little straw men being set up that we did not raise and then being knocked over by the Defendant. He talked at great length about threads and fibers and his explanation for where they were. Isn't it interesting, ladies and gentlemen, that all these MPs and these people who were at the crime scene and tracked in and tracked out in the rain and all this other stuff--why didn't they track some back into the living room from the master bedroom? There were a lot of MPs, according to the Defendant and the Government, in the master bedroom. Why weren't some of those threads somewhere else?
Miraculously, he asks you to believe that only the threads in the living room area were the ones that were tracked and not those somewhere else.
He talks about the movement of the bodies and he spoke of Dr. Neal. He forgot to tell you that Dr. Neal testified from the witness stand that all the photographs of the bodies--or at least some of the photographs of the bodies--were taken prior--not after--but prior to his checking the bodies. The picture of the pajama top on Colette MacDonald was first taken by James Alexander before Dr. Neal ever got there--a little black and white Polaroid shot of it--one of the first photographs, I think, introduced in the trial.
You recall that Dr. Neal says that he moved Colette. How did he move her? He goes over here and moves her towards him. He picks up the pajama top. Did he say that he went over to the bed and shook it out on the bed? Did he say that he went out and shook it out on the club? You didn't hear Mr. Segal explain the club, did you--not with respect to those two threads? No mention was made of that--not one.
Dr. Neal's testimony was contradicted by three Government witnesses--Ivory, Shaw and Connolly--who said that he moved the body of Kristen but not the body of Colette and Kim-berly. But whether you can reconcile that disagreement in your minds or not, it still does not change the fact that even if you believe Dr. Neal and choose to disbelieve our three witnes-ses, so what? So what? If the photographs are taken before, if the pajama top doesn't go under the body, big deal. It doesn't change those threads and fibers, of which there were more than 60 in that room.
He talks about the blood on the feet of Colette MacDonald and that it wasn't checked. There is not the slightest indication that the footprint exiting Kristen's room belonged to any-body other than Jeffrey MacDonald. The Defendant himself on cross-examination said that it was probably his. H. O. Medlin identified it. When you get to the point of why we only have his word and why the picture didn't take it and Osterburg said, "Well if you can see it, you can take a picture of it," remember that Medlin said that he saw the ridge lines with a magni-fying glass and the photography equipment didn't have that magnifying equipment. That is why the ridge lines weren't picked up, according to the very testimony of Medlin--not be-cause you couldn't see it.
He talked at length about the crime scene and said we made fun of it. We don't intend to make fun of anything, and certainly not a serious crime scene like this, but I do fail to see the strong significance of the movement of things that have little or no evidentiary value. He even spoke about the glasses again today and said that there was blood on them. Yes, there was blood, and the testimony was that it was consistent with that of Kristen and in-consistent with that of the Defendant. He said that we were talking about the hospital at Hamlet and perhaps that is where it got on there. I don't recall that testimony ever coming or that argument ever coming from the Government--maybe you do.
He gave you a long list of people that were at the crime scene. Remember, of course, that all those people were not all there at the very same time. You recall the testimony of the MPs who stated that they stayed there a relatively short time. Even though Ivory didn't make a list of the MPs who were there, you remember that Bob Shaw said that he had some-one do that. Ivory did not have to do every little single thing.
He talked about the inconsistencies of statements between Government witnesses and the Defendant himself, and said that we were holding people by different standards. You have got to remember one thing: first of all, the Government witnesses are not Defendants in a criminal case; secondly--you have got to remember two or three things--secondly, the Defendant--Government witnesses aren't attempting to live and get their freedom by their statements, but most importantly, he is showing inconsistencies between one witness and another witness--not an inconsistency between a witness' statement and his subsequent statement at some later time. I submit to you that there is a tremendous difference when you say "A" and "B" disagree and "A" and "A" disagree with "A." It is quite different, I would submit.
He talks about the pajama top and where it was torn. I think by an implication he said that MacDonald said that it was ripped in the master bedroom. Huh-uh. MacDonald said that he took it off in the master bedroom and he did not hear a ripping sound. MacDonald said that he doesn't know where it was torn and he cannot come by his counsel and tell you, "Now, we do know where it was torn." In any event, we don't disagree necessarily on that.
We believe it was torn in the master bedroom.
He talks about the fact that there were few yarns and there would have been few yarns because it wasn't torn in a seam area. Ladies and gentlemen, Paul Stombaugh did, in fact, testify that that blue pajama top was, in fact, torn in a seam area as well as other places.
He talks about the sheet and the bedspread and the fact that you cannot draw any con-clusions from that because it was wet, it was tacky, it was put together in a bag. Well, I recall his own Defendant expert, John Thornton, whom Wade Smith has just said was out-standing, he said that there was a right cuff of the blue pajama top on that sheet. The De-fendant cannot have it both ways, ladies and gentlemen. You can either identify impressions on that sheet or you can't. You remember the testimony of Paul Stombaugh who said, with respect to how long it takes blood to dry and the shoulder area in which he said there was a small amount of blood and that it would have taken five to six minutes to dry. To say now that when it was moved, that all the blood was wet and that is where all the impressions came from, I think, certainly begs the question on that. We submit to you that that testi-mony concerning that sheet and the impression on it is still extremely valid.
He talked about the pajama top on Colette and some said that her breast was exposed, but the photograph didn't show an exposed breast. He forgot to mention that whether or not you can see something like that and show up in a picture depends in great degree on the camera angle that you are taking the picture from.
Ladies and gentlemen, I also think I heard him say that we contended that the pajama top was torn in Kristen's room and there weren't many threads there. No, we haven't said that the pajama top was torn in Kristen's room. I think there is a very valid explanation of why there were very few threads there. I think most of them simply had fallen off by the time it was taken there. I think that is why there were very few threads there.
Ladies and gentlemen, the Defendant has testified and I would agree with the Defense that on and the shoulder area in which he numerous occasions--he piled a stack high--and that he always testified voluntarily, which I think is true. But you have got to remember something, ladies and gentlemen, and the Defense keeps making a big spat of the fact that this is 1979, and that it is the same as 1970, and that nothing has changed--forgetting to tell you that in 1971, and 1974, every single--not every single bit--but a tremendous amount of this evidence was re-analyzed by the FBI and that the new investigation that resulted in this re-analysis and much of this evidence was done at the specific request of the Defendant himself.
Again, I think that the Defendant is seeking to have it both ways. The Defendant has told his story many times. The physical evidence has become additionally known at different times. For example, we know different things after 1970 that we did not know at the Article 32 proceedings, or that the military did not know at the military proceedings at the Article 32. Sometimes you have to change a story to keep up with where the evidence is going.
He stated that the blood tests in the living room were suspect, but of course, the benzi-dine test, while it may give you a false positive, does not give you a false negative, and even John Thornton himself said that it was a very specific test for the identity of blood.
They said--they gave you an explanation of why there was blood in Kristen's room and where the blood for the footprint could have come from. I think he said that the Defendant could have carried it there, a weapon could have carried it there, or intruders could have carried it there, but the problem with that is that the only A type blood there is in the foot-print. It is not in a pool or something. It is not in a different location. It is in the footprint.
If it is in the footprint, I submit to you that it is not rational to say that it got there through any of the three ways which the Defendant alleged.
Ladies and gentlemen, we talk about motive. What is the motive, again, for the intruders?
I am not going to go back into that as I did this morning, but at the same time, you think about the motive for the Defendant. While we aren't required to prove a motive and he is not required to prove a motive, what is sauce for the goose is sauce for the gander, and if he says, "Where is your motive over here," well, okay, we will say, "Where is your motive over there?" I submit to you that when you compare them, ours is better.
Ladies and gentlemen, they went at great lengths to discredit the pajama top, and I think that is deserved--well, they should--I would, too. Do you know why? Because it is mighty, mighty damning.
Shirley Green did not say, as I recall her testimony, that she did follow Paul Stombaugh's theories on exit and entry wounds. She said that she didn't. There is a big difference be-tween did and didn't. You recall the FBI Report, and I mentioned it this morning and I am sorry, but I have got to mention it again, Paul Stombaugh said that he saw several holes--not all as the Defendant has correctly stated--that had the appearance of entry holes and some that had the appearance of exit holes. He also concluded--a couple of paragraphs down--that because he got the pajama top a year and a half after the crime, it was impossi-ble to determine whether or not the holes were entry or exit holes. I submit to you that their attack on the pajama top reconstruction is based on a false premise.
They read you part of Stombaugh's testimony and tried to imply that he changed his sto-ry. Huh-uh. You remember what he said? He said, "We re-folded it exactly the same way," and they did. They put the left sleeve on the floor, they took the right sleeve and put it in-side out, and they put it as best they could on a mannequin or something. Stombaugh never said, "We placed it in the same position." There is a big difference in the words "placed" and in the words "re-fold." The fact that 48 thrusts or 21 thrusts through the pajama top can make 48 holes is a singular significant fact which I tell you proves to me beyond a reasonable doubt that Jeffrey MacDonald killed his wife, Colette, and it is a very short leap from that to say that he killed the other two as well.
We have never said that the Defendant faked his injuries. We are not contending that. I don't know whether he faked them or not. I don't know that there is any evidence that he faked them. We only tried to compare and contrast to you the injuries that his family re-ceived with the injuries which he received, and to tell you that they were not of the same consistency.
The fibers at the end of the hall--there is no evidence in this case linking those fibers to the blue pajama top. Ladies and gentlemen, Mr. Segal says that there is tremendous evi-dence of intruders--the ice pick, the two knives, and the club. He said that the club proba-bly came from the well in the back of the house. You recall the testimony of Bob Shaw, who said that he looked for footprints in that area and didn't see any, but here, we have got four intruders coming to the house perhaps without any weapons and finding them at the crime scene along with surgical gloves. Isn't that incredible, ladies and gentlemen?
The people Milne saw, the person Mica saw, Helena Stoeckley doesn't even say that she had a weapon, Posey didn't say that Helena had a weapon--he said that there was some-thing in her hands. Paring knives--everybody who testified on this subject said the MacDon-alds had knives. The ice pick, Pamela Kalin, I submit to you is worthy of belief. You can re-call her testimony. She changed her mind, true; she said that she was scared and frightened when she was first interviewed--she was 15 or 16 years of age. Mildred Kassab, who said that there was an ice pick; the Defendant said that there wasn't an ice pick that he knew of.
And the club: you recall the testimony of the Defendant. He said that he had never seen that club before and yet his attorney gets up here and says, "Well, it was probably there and you can reasonably infer that, but it was only probably kept back here." Again, I submit to you that is the Defendant seeking to have it both ways.
Again, he says, "How did those weapons get outside the back of the house and it is im-plausible to throw them out." You know, a man who has killed his family can do a lot of things, I suppose, and I don't think it is too difficult to open a screen door and throw the weapons out the door. We submit to you that that is precisely what occurred.
The girl that Mica saw doesn't fit their theory--not ours. Our case is not based on theory.
Our case is based on fact. The girl had no boots. Milne: his story doesn't fit their theory as well as our case, but it fits our case perhaps better than it does their theory because it is quite possible that no one saw these people. It is also quite possible that the Defendant saw them. What is the problem? It is that Milne saw them at 12:00 and the description does not match the description the Defendant gave of what they had on and what they were wearing.
Finally, they go after Helena again. The only thing that I am going to say about Helena Stoeckley--because you can talk about wreaths, you can talk about going to the funeral, you can talk about wearing black, you can talk about killing a cat, you can talk about witch-craft, you can talk about anything you want to; but you can't overcome the one fact that the Defendant, in 1970, at the Article 32, was shown her photograph and said that he had not seen her before. Now, how do you get around that? I think that takes care of her--of Helena Stoeckley.
Finally, ladies and gentlemen, I want to say in closing, as we said this morning, that this is a difficult case, not because the evidence is difficult, but it is difficult because of the people involved--the Kassabs, who have been injured and will be injured for the rest of their lives, regardless of your verdict. Mrs. MacDonald, who has been injured and will be injured the rest of her life, regardless of your verdict; their friends, who will suffer the same fate, and, I guess, the Defendant himself.
You know, I am sure it is very sad for everybody who knew these people to look at those photographs. I think it is very sad for people who knew these people to look at pictures of kids playing, of Halloween and Christmas. I wish more than you know that we could have shown you that kind of picture. I wish more than you know we weren't here. I wish more than you know that I did not think the evidence pointed to the Defendant. I think the su-preme tragedy in this whole thing really is, if our evidence is correct and the Defendant did it, which we believe he did, think for a moment of the last minutes of Colette, Kimberly, and Kristen, when they realized that they were going to die and they realized for the first and the last time who it was that was going to make them die. It is incredible. It is unbelievable, as Wade said. You wouldn't think it. People have said that he is not that kind of guy, but, la-dies and gentlemen, people do strange things--man's inhumanity to man--but we think he did it. For that, we are sorry. For that, you have an awesome burden and responsibility. You have got to decide, beginning tomorrow, what the evidence is and what your verdict will be. We believe strongly--as strongly as we don't want to believe--that he did it and he is guilty of Count One of first-degree murder, of Count Two of first-degree murder, and Count Three of first-degree murder, and I ask you to so find. Thank you.
Note from Christina Masewicz: The original stenographer’s misspellings of “Graebner” and “Duffey” were corrected to “Grebner” and “Duffy,” respectively, in this transcript.