April 8, 1975: Motion by Jeffrey MacDonald For Discovery and Inspection of Documents, Etc., Pursuant to Federal Rule of Criminal Procedure 16
See: October 13, 1990: Affidavit of Bernard L. Segal with Attachment
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
UNITED STATES OF AMERICA, plaintiff
CRIMINAL No. 75-26-CR-3
JEFFREY R. MACDONALD, defendant
Motion For Discovery and Inspection of Documents, Etc., Pursuant To Federal Rule Of Criminal Procedure 16.
The defendant, Jeffrey R. MacDonald respectfully moves this court, pursuant to Federal Rule of Criminal Procedure 16, to order discovery by the defendant of the matters described in the within motion, which are or may be under the control or possession of the United States, for the reasons set forth herein. Pursuant to the said motion the defendant moves the Court to order the United States to permit defense counsel to inspect, copy, photograph, or subject to scientific analysis the matters described herein. In support of the said motion the defendant alleges as follows:
1. Terms Used In This Motion
(1) For the purpose of this clarity of this motion and in order to minimize redundancy, the defendant intends the following meaning for the terms set out hereafter:
(a) The term Government includes but is not limited to the United States Army, and all of its subdivision and units, including, but not limited to the Criminal Investigation Division (CID), the Military Police Corps, and the Criminal Investigation Laboratory of the CID.
Also, the United States Department of Justice and all of its subdivisions and units, including, but not limited to the Federal Bureau of Investigation, and to each and every other branch, department, agency and governmental corporation of the United States Government, and to each and every federal, state and local agency who acted on behalf of or in corporation or conjunction with the United States Government in the investigation and prosecution of this case.
(2) For the purpose of the clarity of this motion and in order to minimize redundancy, the defendant intends the following meaning for the terms set out hereafter:
(a) The term "statement" includes, but is not limited to, any utterances of the defendant which are recorded by any means, in whole or in part and regardless of to whom they were made and how they were obtained.
(b) The terms "the house" refers to the residence of the MacDonald family in February 1970, at 544 Castle Drive, Fort Bragg, North Carolina.
(c) The term "at the scene", "scene of the crime" and "at the scene of the instant offense" refers to the residence of the MacDonald family in February 1970 at 544 Castle Drive, Fort Bragg, North Carolina, and its environs.
II. Statement of Defendant
(3) Any and all statements, confessions or admissions made by defendant, written or otherwise recorded, or oral statements subsequently reduced to writing, including but not limited to, recording and transcriptions made by Alfred Kassab which were given to the Government.
(4) Under Rule 16 (a) defendant is entitled to inspect and copy his own written or recorded statements unless the Government shows particular and substantial reasons for withholding such materials. United States v. Projansky, F.R.D. 550(S.D.N.Y. 1968); United States v. Rosenberg, 299 F. Supp. 1241 (S.D.N.Y. 1969); United States v. Fallon, 498 Fed. 172 (C.A. 9th 1974).
A lawyer's advice to his client at every state of a criminal case is, and quite properly should be, dependent upon the contents of the statement given by his client to the Government. United States v. Fancher, 195 F. Supp. 448 456 n.17 (D.Conn. 1961).
The Supreme Court has also recognized that pre-trial disclosure of a defendant's statements is the "better Practice." Cicenia v. LaGay, 357 U.S. 504, 511 (1968); Leland v. Oregon, 343 U.S. 790,801 (1952)
Knowledge of the contents of the defendant's statements is necessary to advise defendant whether he should take the stand and testify, or exercise his constitutional right of silence. Cf. Walder v. United States, 347 U.S. 62 (1954; Johnson v. United States, 120 U.S. App. D.C. 69, 344 F. 2nd 163 (1964); Poe v. United States, 233 F.Supp. 173 (D.D.C. 1964); aff'd 122 U.S. U.S. App. D.C. 163, 352 F.2nd 639 (1965). See also People v. Quarles, 255 N.Y.S. 2d 599, 44 Misc. 2d 955 (1964).
III. Testimony of the Defendant Before Grand Jury
(5) All of the recorded testimony of the defendant before the United States Grand Jury for the Eastern District of North Carolina.
(6) Rule 16 (a) (3) authorizes the Court to order disclosure to a defendant of his grand jury testimony as a matter of right, in addition to other circumstances under which a court would be authorized to lift the cloak of grand jury secrecy. United States v. Aeroquis Corp., 41 F.R.D. 441 (E.D. Mich. 1966); accord, United States v. Pilnick, 367 F.Supp. 791 (S.D.N.Y. 1967) United States v. Marks, 364 F.Supp.1022 (E.D. Kentucky 1973).
IV. Reports of Scientific, Physical, Medical and other Examinations
(7) The results or reports, lab notes, methodology, nature and name of physical examinations, scientific tests and experiments made in connection with this case, including but not limited to:
(a) All physical reports and examinations of defendant.
(8) All reports, physical examinations, scientific tests and experiments in regard to hair, including but not limited to:
(a) Samples taken from the defendant by the United States Army in July 1970;
(b) Samples taken from the defendant by the Federal Bureau of Investigation in August 1974;
(c) Reports of comparisons of hair samples of the defendant with that of Colette, Kristen and Kimberly MacDonald, and that of any other persons with whom the hair of the aforesaid members of the MacDonald family was examined for comparison by the Government.
(9) All Lab tests and reports on any fibers found in the house.
(10) All analysis, reports and conclusions concerning footprints found in the house.
(11) All experiments, analysis and reports regarding surgical gloves and the detection of fingerprints from the inside of fragments of said gloves.
(12) All experiments, analysis and reports regarding all foreign matter found at the scene of the instant offense.
(13) All reports, scientific tests and experiments in regard to blood, but not limited to:
(a) Blood of the defendant;
(b) Blood of Colette, Kimberly, and Kristen MacDonald;
(c) Blood found at the scene of the instant offense;
(d) Reports of comparisons of the blood of the defendant, Colette, Kimberly and Kristen MacDonald and other persons made in connection with the case.
(14) All reports, scientific tests and experiments in regard to urine samples made in connection with the case, including but not limited to:
(a) Reports and analysis of urine found at the scene of the instant offense;
(b) Reports of comparisons of urine of Kimberly and Kristen MacDonald and any other persons.
(15) All analysis, comparisons, reports and conclusions concerning candles and/or wax found in the house.
(16) All reports, scientific tests and experiments made in connection with this case regarding fingernail scrapings including but not limited to:
(a) All fingernail scrapings found at the scene of the instant offense;
(b) Fingernail scrapings taken from the defendant, Colette, Kimberly and Kristen MacDonald;
(c) Reports of comparisons of said fingernail scrapings and comparisons with any other persons.
(17) All medical and scientific procedures, tests and reports regarding the exhumation, examination and dissection of the bodies of Colette, Kristen and Kimberly MacDonald.
(18) All reports regarding the examination of weapons suspected of or alleged to have been used in connection with the killing of Colette, Kimberly and Kristen MacDonald, and in injuring the defendant.
(19) All experiments, tests and reports regarding the defendant's clothing, including but not limited to defendant's pajamas, including the test conducted on the said pajamas by an "expert in impressions".
(20) All test and reports relating to evidence of a "strand of defendant's pajamas interwoven with a strand of Colette MacDonald's hair".
(21) All photographs and reports of comparisons of known and latent fingerprints of any persons made in connection with this case and a list of the exact number and location of destroyed fingerprints.
(22) All analysis and reports of fibers, paints and scrapings.
(23) All post mortem autopsy reports made of Colette, Kimberly and Kristen MacDonald.
(24) All analysis of the person, clothing or possessions of defendant.
(25) All analysis of the person, clothing or possessions of Colette, Kimberly and Kristen MacDonald.
(26) All scientific reports and analysis made in connection with the CID's investigation and re-investigation of this case.
(27) Discovery of this material by Rule16(a) (2). United States v. Turner, 274 F.Supp. 412 F.D. Tenn. 1967; United States v. Ahmad, 53 F.R.D. 186 (D.C. Pa. 1971).
Disclosure of this material is needed by the defendant in this case and is particularly appropriate, for the following reasons:
(a) The defendant will not be able to effectively and adequately cross-examine the Government's expert witness without ample opportunity pr-trial to prepare appropriate material for that purpose.
(b) Any danger of intimidation of witnesses concerning these matters is so slight as to be for all practical purposes non-existent.
(c) Expert testimony generally has, in the eyes of a jury, unusually high probative value, coming as it does from a supposedly disinterested party and concerning matters generally beyond the realm of ordinary lay information. Cooper v. United States, 119 U.S. App. D.C. 142, 143 337 F. 2d 538,539 (1964) (Wright, Cir. J., concurring).
Counsel may wish to retain or request appointment of independent experts to assist him regarding these areas of "expertise" and therefore it is necessary that the material is available to these independent experts. Fed. R. Crim. F. 28 (a); Criminal Justice Act of 1964, 52(c), 18 U.S.C. 53006A (e). See "Effective Assistance of Counsel for the Indigent Defendant" 78 Harv. L.Rev. 1424, 1438-1440 (1965)
V. Photographs, Diagrams and Sketches
(28) All photographs, diagrams and sketches and models made of the scene of the instant offense, of the defendant and of Colette, Kimberly and Kristen MacDonald, including but not limited to:
(a) All photographs of the interior and exterior of the scene of the crime, the surrounding buildings and vicinage;
(b) All photographs of the bodies of Colette, Kristen and Kimberly MacDonald;
(c) All photographs of the alleged weapons and wooden slats from victim Kimberly MacDonald's bed;
(d) All photographs of defendant's pajamas;
(e) All photographs of the "impressions expert's" experiments with the defendant's pajamas;
(f) All photographs of bloody footprints found at the scene of the instant offense;
(g) All photographs of Colette MacDonald's pajamas and sheet;
(h) All photographs of defendant's wounds;
(i) All photographs of every suspect detained by the Government at Fort Bragg during the investigation of the instant offense;
(j) All photographs of every person who was considered a suspect in connection with the deaths of the MacDonald family including but not limited to Helena Stoeckley.
(29) These photographs and sketches are necessary to determine the condition of the scene of the crime, and the physical condition of Jeffrey, Colette, Kimberly, and Kristen MacDonald. Also, photographs and sketches of individuals considered to be suspects are relevant and material in establishing the defendant's innocence and in the identification of the individuals observed at or near the scene of the crime by Spc. Kenneth Mica and other members of the Military Police.
(30) Photographs, diagrams and sketches of the scene of the crime are within the language of Rule 16 (b). These photographs may be offered in evidence by the government at trial, and the information contained in them is otherwise unavailable to the defense. Similar requests have been granted in U. S. V. Almad, 53 F.D.R. 186 (D.C. Pa., 1971). See also United States v. Schembari, 484 F. 2d 931 (C.A. 4th 1973)
VI. Names and Addresses of Witnesses
(31) The names and addresses of all persons known to the Government who may or do not have knowledge of facts in connection with this case, including, but not limited to:
(a) Those who were placed in line-ups during the investigation and re-investigation of this case.
(b) Those who were considered suspects or potential or possible suspects by the Government at any time since February 17, 1970;
(c) The five hundred (500) persons investigated as suspects by CID investigators Connolly and Hawkins in 1970;
(d) The six thousand (6000) persons interviewed in connection with this case by the Government during the period February-August 1970, according to Chief Warrant officer Franz Grebner,
(e) The seven hundred (700) persons from seventy (70) countries interviewed by Lt. Col. Pruett and Warrant officer Kearns during the CID re-investigation of this case;
(f) All of the Military Police whom, according to Col. Robert Kriwanek, Provost Marshal of Fort Bragg, participating in the "road blocks" on or near Fort Bragg during the early morning hours of February 17, 1970;
(g) All persons who have identified the alleged murder weapons as belonging to the defendant;
(h) All members of the Military Police, Provost Marshal, CID agents, and any other Government agent present at the crime scene on February 17, 1970;
(i) All individuals residing in the area surrounding the crime scene who stated that they did or did not hear any disturbances on the morning of February 17, 1970;
(j) All individuals investigated in Long Island by CID agent Benny Hawkins and any other agent of the Government during May-September 1970.
(32) The names and addresses of persons having knowledge of this case are relevant to enable counsel to conduct an adequate investigation of this case.
(33) Witness, particularly eye witnesses, to a crime are the property of neither the prosecution not the defense. Both sides have an equal right, and should have an equal opportunity to interview them. Gregory v. United States, 369 F. 2d 185, 187-188 (D.C. Cir. 1966). See also U.S.V. Vole, 435 Fed. 774(C.A. 7th 1970); U.S. v. Matlock, 491 Fed. 504 (C.A. 4th 1974)
Amended Rule 16 is apparently intended to authorize orders requiring the production of witness lists, because the Advisory Committee's Notes suggest that the "safety of witnesses" and the "danger of perjury or witness intimidation" may be considered by the Court as a basis for restricting discovery. See Rule 16(e) These considerations would have been unnecessary had it not been contemplated that the names and addresses of witnesses would be provided to the defense in appropriate cases.
"Absent a showing of…abuses and the considerations noted by the Advisory Committee, such as danger to witnesses, name and addresses of persons who have any knowledge pertaining to the case, both those who will be called as witnesses and those who will not, are properly discoverable…The necessity for discovery of names and addresses of persons with knowledge of the case whom the Government does not intent to call as witnesses may be even greater than discovery of the names of witnesses who will be called. The former may have information favorable to the accused and that information would not be discoverable under the Jencks Act. Indeed, if discovery of names of non-witnesses with knowledge of the case were denied, an innocent defendant might never even know of the existence of people who could save him from punishment for a crime he did not commit." United States v. Hardy, Crim. No. 869-68 (D.D.C. 1968), as cited in Bender's Forms of Discovery Vol. 13A, p8-196.
VII. Statements Of Persons Other Than Defendants
(34) All written or recorded statements made concerning this case by any persons who are not prospective Government witnesses, including but not limited to:
(a) All statements made to the Government by Mrs. Dorothy MacDonald, Judith Alvey and Jay MacDonald, who are the mother and siblings of the defendant;
(b) All statements made to the Government by residents of Long Island, Chicago, Fort Bragg, New York and California;
(c) All statements made to the Government by Helena Stoeckley;
(d) All statement made to the Government by Alfred and Mildred Kassab, including but not limited to statements regarding a missing ring from Colette MacDonald's jewelry box;
(e) All statements made to the Government by William Posey;
(f) All statements made to the Government by residents of Hamlet, North Carolina;
(g) All statements made to the Government by Ms. Joann Jarrett of New York regarding the defendant;
(h) All statements made to the Government by any Army personnel or civilians who knew the defendant in July 1969 or any time thereafter, including but not limited to Ms. Carol Larsen and Miss Cheryl Olsten;
(i) All statements made to the Government by defense psychiatrist, Dr. Robert L. Sadoff;
(j) All statements made to the Government by Spc. Kenneth Mica who was one of the first men from Military Police to arrive at the crime scene;
(k) All statements made to the Government by Dr. Russell Fisher of Baltimore, Maryland and any other physicians.
(35) These statement will not be producible at trial under the Jencks Act, but may furnish evidence favorable to the defendant or suggest further leads. It is also submitted that their value can be properly determined only by defense counsel.
(36) The statements requested in paragraph 6 also fall within Rule 16 (b). Their materiality is demonstrated by the fact that the request is limited to statements concerning this case. Since these witnesses will not be called by the Government to testify at trial, their statements are not obtainable under the Jencks Act, 18 U.S.C. S3500.
As a result, there would be an undesirable gap in the scope of available discovery if the new law were held not to authorize discovery of statements of witnesses whom the Government does not plan to call. Statements of such witnesses are likely to contain material helpful to the defendant's case; for example, the inability of the witness to identify the defendant or a description of the perpetrator of the crime which does not fit the defendant. Rezneck, "The New Federal Rules of Criminal Procedure," 54 Geo. L.J. 1276, 1286 (1966).
In addition, these statements may very well prove helpful to the defense under Brady v. Maryland, 373 U.S. 83 (1963)
Many of the other authorities are collected by Circuit Judge Marshall in his opinion for the panel in United States ex rel. Meers v. Wilkens, 326 F. 2d 135 (2d Cir. 1964). See also Note, "The Duty of the Prosecutor to Disclose Exculpatory Evidence," 60 colum. L. Rev.858 (1960).
VIII. Other Books, Papers, Documents And Tangible Objects
(37) All tangible objects and documents which the Government considers may be used as evidence at trial of this case, including but not limited to:
(a) A copy of the official Government response to a series of twenty-three (23) charges filed against the Army with members of Congress by Alfred Kassab during October-December, 1970;
(b) All evidence obtained by the Government regarding any identification of the "female with a hat" seen by Spc. Kenneth Mica near the scene of the crime on February 17, 1970;
(c) All evidence regarding the theft or removal of the defendant's wallet from the crime scene on the morning of February 17, 1970;
(d) All evidence regarding the identity of the "unidentified male in dungarees" who was seen leaving the scene of the crime on the morning of February 17, 1970 after the arrival of the Military Police;
(e) All tangible objects obtained from the scene of the crime or from the persons or possession of the defendant.
(38) Tangible objects "obtained from or belonging to the defendant or obtained from others by seizure or by process" were discoverable under former Rule 16. Amended Rule 16 (b) authorizes the discovery of all books, papers, documents and tangible objects (except internal reports and Jencks material) in possession or control of the Government upon showing of materiality and reasonableness. These objects and documents are evidentiary materials and therefore are presumed to be material. Inspection of these materials is necessary to prepare an adequate defense and to prevent surprise at trial. The request is clearly reasonable. U.S. v. Bearden, 423 Fed. 805 (C.A. 5th 1970); U.S. v. Tanner, 279 F.Supp. 457 (D.C. Ill.1967); U.S. v. Dioguardi, 332 F.Supp. 7 (D.C.N.Y. 1971).
IX. Exculpatory Material
(39) The defense also moves for the production of any evidence or information which is exculpatory or favorable to the defendant.
(40) Since the decision of the Supreme Court in Brady v. Maryland, supra, it is clear that the suppression of evidence favorable to an accused by the prosecution violates due process, "irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. And it should be noted that in Brady the evidence withheld was favorable only on the issue of punishment. See also the earlier decision in Ex parte Powell, 361 U.S. 34 (1959), and the subsequent ruling on remand, Powell v. Wiman, 287 F. 2d 275 (5th Cir. 1961). In the Powell case, the material suppressed was relevant to the credibility of a witness for the prosecution, and its suppression was held violative of due process.
Following Brady, other courts have also found a violation of an accused's constitutional rights in the withholding of evidence favorable to the defense and statements by the courts make it clear that no distinction is to be drawn between material known only to the police and material known to the prosecuting attorney. See Barbee v. Warden, 331 F. 2d 842, 846 (4th Cir. 1964) Ellis v. United States, 120 U.S. App. D.C. 271, 345 F. 2d 961 (1965); Walker v. Bishop, 295 F.Supp. 767 (E.D. Ark. 1967); Smith v. United States, 375 F.Supp. 1244 (E.D. Virginia 1974).
Moreover, it has been become clear that even a negligent nondisclosure by the prosecution will violate the rights of an accused. Levin v. Katzenbach, 124 U.S. App. D.C. 158, 363 F. 2d 287 (C.A.D.C. 1966), and authorizes there cited; Barbee v. Warden, supra.
(41) In summary, defendants seek to enlighten themselves concerning the elements and nature of these most serious charges against them. The Supreme Court has written;
"A prosecution that withhold evidence on demand which if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That cast the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice,…." Brady v Maryland, 373 U.S. 83, 87-88 (1963)
Liberal discovery is in line with the more reasonable view that "a civilized society ought not to tolerate the conduct of a criminal prosecutor as a game." Statement of Mr. Justice Douglas, dissenting in part from the transmission of the recent amendments to the Federal Rules of Criminal Procedure.
In addition, the defendant has satisfied the Government requests for information, documents, and objects in the possession of the defendant. Accordingly, counsel respectfully requests that the Court grant defendant's motion.
(42) These requests are made to all federal, state and local agencies who have acted on behalf of the United States Government in the investigation and prosecution of this case, including but not limited to the Fayetteville Police, Federal Bureau of Investigation and Criminal Investigation Division of the United States Army.
(43) This motion is made in good faith and not for the purpose of delay. It is submitted that the requested production and inspection are material to the defense and would be neither unreasonable nor oppressive to the Government, but will facilitate a fair, efficient and just disposition of the charges against the defendant.
Bernard L. Segal, Esq.
Suite 220, 536 Mission Street
San Francisco, California 94105
Durant Williams Escott, Esq.
412 Law Building
Charlotte, North Carolina 28202
Attorneys for defendant