August 24, 1984: Defendant's Addendum to Reply to Government's
Opposition to Motion to Vacate Sentence
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
UNITED STATES OF AMERICA, plaintiff
CASE No. 75-26-CR-3
JEFFREY R. MACDONALD, defendant
DEFENDANT'S REPLY TO
TO MOTION TO VACATE SENTENCE
FRADY v. UNITED STATES IS INAPPLICABLE TO THE INSTANT MOTION
In its response to Dr. MacDonald's Motion to Vacate Sentence (Brussel motion), the Government asserts that this motion is governed by the "cause and actual prejudice" standard of United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1983). This assertion is without merit. The Frady standard applies only where the movant has committed a procedural default, i.e., has raised for the first -- time in a collateral attack an issue that should properly have been raised at trial or on appeal. See U.S. ex. rel. Saulsbury v. Greer, 702 F.2d 651 at 653 (7th Cir. 1983); Holton v. Parratt, 683 F.2d 1163 at 1167 (8th Cir. 1982); Jones v. Thigpen, 555 F.Supp. 870 at 872-73 (S.D. Miss. 1983); Collins v. Lockhart, 545 F.Supp. 83 at 89 (E.D.Ark. 1982). The "cause and actual prejudice" standard -- substantially more difficult to meet than the "plain error" rule applied on direct appeal -- is imposed to penalize such a defendant for his negligent or intentional circumvention of the appellate process.
Dr. MacDonald has committed no procedural default or circumvention. The issue raised in the Brussel Motion to Vacate Sentence -- whether Dr. MacDonald's Sixth Amendment, right to counsel was violated by Dr. Brussel's interview -- could not have been raised at trial or on appeal because the government failed to disclose the true nature of Dr. Brussel's examination until long after the trial and appellate proceedings had been completed. Indeed, this information was not made available to Dr. MacDonald until May 1983, when documents obtained through the Freedom of Information Act disclosed Dr. Brussel's prior role in the Government's investigation and preconceived opinion of Dr. MacDonald's culpability. Thus, Dr. MacDonald's failure to raise this issue at trial or on appeal was due not to any negligent or intentional circumvention on his part, but rather to the Government's continued misrepresentation of Dr. Brussel's involvement with the case. To penalize Dr. MacDonald for failing to raise this issue earlier is to punish him for the Government's misconduct. Such an outcome was scarcely contemplated by the court in Frady; nor could such a rule be upheld as comporting with due process.
THE DEFENSE WAS UNAWARE OF DR. BRUSSEL'S PRIOR ROLE AS A CRIMINALIST IN THE INSTANT CASE WHO HAD FORMED CONCLUSIONS AS TO DR. MacDONALD'S GUILT
The Government argues that defense counsel had notice of Dr. Brussel's true identity because (1) the Government had provided counsel with Dr. Brussel's vitae in 1971, and (2) at trial, Mr. Segal had expressed some recognition of Dr. Brussel's name. However, the Government fails to address the gravamen of Dr. MacDonald's motion: That the defendant had no notice of Dr. Brussel's "adversarial role and preconceived beliefs" regarding Dr. MacDonald's culpability. It is true that defense counsel knew Dr. Brussel was a forensic psychiatrist. What is critical is that Brussel was also a consulting criminalist who, based upon his assessment of the physical evidence, had concluded that the defendant was a lying psychotic killer.
That was never disclosed to the defense, a fact not disputed by the Government. Clearly, Dr. Brussel's preexisting view would color Dr. Brussel's assessment of the defendant -- yet it was deliberately hidden from the defense.
THE ADMISSIBILITY OF PSYCHIATRIC TESTIMONY WAS CONDITIONED UPON DR. MacDONALD SUBMITTING
TO DR. BRUSSEL'S INTERVIEW
The Government contends that the Court did not condition the admissibility of all defense psychiatric testimony on Dr. MacDonald's submission to an exam conducted by a government psychiatrist. This assertion is contrary to the facts as reflected in the trial transcript. The Court stated:
"I will tell all of you this now if the evidence is to come in, then of course because it has been so delayed in bringing it to a head and getting the defendant's side of it, then I am going to give you an ample opportunity to have the man examined and get your own evidence."
DR. SILVERMAN'S AFFIDAVIT CONFLICTS WITH THE FACTS AS RECOLLECTED BY THREE WITNESSES
The affidavit of Dr. Hirsch Lazaar Silverman, in which he states that he was not present when Dr. Brussel conducted his examination) is confusing and frustrating. It does not comport with the facts as recalled by five persons who were present in Wade Smith's office on the evening of August 13, 1979 when Dr. Brussel and Dr. Silverman conducted their examinations. (See affidavits of Bernard L. Segal, Nancy Jones, and Fran Fine)
According to these witnesses, the examination took place in a private room off the reception area in Wade Smith's offices. These witnesses sat in the reception room and observed Dr. MacDonald, Dr. Brussel and Dr. Silverman enter the private room together. These witnesses remained in the room for the entire period during which the examination took place. At the end of this time, the witnesses observed Dr. Silverman, Dr. Brussel and Dr. MacDonald exit the room together.
Therefore, with the exception of Dr. Silverman, the individuals present in Wade Smith's office on the evening of August 13, 1979 remember that Dr. Silverman was present during Dr. Brussel's examination of Dr. MacDonald.
IT IS IMPLAUSIBLE THE GOVERNMENT WOULD NOT DEBRIEF ITS OWN EXPERT, DR. BRUSSEL
The Government's assertion that the Government did not debrief Dr. Brussel is perplexing. Judge Dupree had ordered an evaluation of Dr. MacDonald by a government appointed psychiatrist so that the Government could have "ample opportunity to have the man examined and get its own evidence." How the Government could get its "own evidence" without debriefing Dr. Brussel is perplexing.
The Government documents the tremendous effort and expense incurred by the Government in order to have Dr. Brussel examine the defendant. It is implausible that the Government paid for an expert evaluation if it had no interest in the outcome. The easy explanation is that the Government knew of Dr. Brussel's preexisting opinion and had no need to debrief him -- again highlighting the Government's failure to disclose that material fact prior to Dr. Brussel's examination. Thus, the Government was able to hoodwink the Court and the defendant into a belief that Dr. Brussel's opinion was the product of a psychiatric exam when in fact it was the product of his role as a consulting criminalist. Nevertheless, the Government used Dr. Brussel's non-psychiatric opinion to convince the Court that there were competing psychiatric opinions which would confuse the jury.
DR. MacDONALD NEED NOT DEMONSTRATE PREJUDICE BECAUSE THE SIXTH AMENDMENT VIOLATION WAS INTENTIONAL
United States v. Morrison, 449 U.S. 364, 101 S.Ct. 665 (1981), cited by the Government as holding that no remedy for a Sixth Amendment violation can be had without a showing of prejudice is inapposite herein. The controlling law herein is that cited by Dr. MacDonald in his Brussel motion. Briggs v. Goodwin, 698 F.2d 486 (D.C. Cir. 1983) and United States v. Levy, 577 F.2d 200 (3d Cir. 1971) hold that a defendant is not required to demonstrate prejudice when the Government deliberately violates a defendant's Sixth Amendment rights. These cases concern defendants like Dr. MacDonald who were caused to divulge confidential information to the government. In Briggs and Levy a presumption of prejudice arose from the Government's possession of information gained in violation of the Sixth Amendment.
Morrison, on the other hand, involved a woman, indicted for distributing heroin, who was merely questioned by drug enforcement authorities without the benefit of counsel. She refused to answer their questions or cooperate with their investigation. Thus, no confidential information was passed. As no such information was possessed by the Government, no presumption of prejudice arose. Moreover, the agents in Morrison in no way misrepresented their identity to the defendant; they were not undercover agents like those in Briggs or in the instant case. Thus the sort of gross intentional deception that characterizes the instant case and Briggs was not present in Morrison. While Morrison may well have been a case in which "the constable blundered" it was not the sort of gross impermissible with Sixth Amendment rights to which the Briggs/Levy presumption applies.
The court in Briggs distinguished Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837 (1977) on the ground that the defendant in Weatherford suffered no prejudice as a result of the Government's Sixth Amendment violation because "the informant did not turn over any evidence to the prosecution." (See Dr. MacDonald's Brussel's Motion, p. 28). Thus Morrison is easily distinguished from Briggs and the instant case and is inapplicable herein.
For all of the foregoing reasons it is respectfully submitted that the case of Frady v. United States is wholly inapplicable to the instant case. Many of the Government's assertions regarding Dr. Brussel's interview of Dr. MacDonald and the circumstances surrounding this interview are contrary to fact.
Moreover, the case of United States v. Morrison is inapposite. Therefore, Dr. MacDonald's sentence must be vacated because the Government intentionally violated Dr. MacDonald's Sixth Amendment rights by sending Dr. Brussel to interview Dr. MacDonald, while failing to reveal either Dr. Brussel's prior role as a criminalist in the case or his previous determination that Dr. MacDonald's was guilty.
Dated: August 24, 1984
A Professional Corporation
WADE M. SMITH
THARRINGTON, SMITH & HARGROVE
By WADE M. SMITH
Attorneys for Defendant