August 27, 1984: Declaration of Michael J. Malley re: FBI Agent H. Warren Tool's Report, Cathy Perry's Clothing and Boots, the alleged "Lost Skin,"
the Letter "G," and Latent Prints Photos
DECLARATION OF MICHAEL J. MALLEY
I, Michael J. Malley, declare as follows:
(1) I am an attorney admitted to practice in Arizona and the District of Columbia.
(2) I represented Dr. Jeffrey R. MacDonald in the criminal case captioned United States v. MacDonald, Case No. 75-26-CR-3 from the onset of the case during the Army investigation in 1970 through the appellate process which ended in 1982.
(3) I did not at any time during my representation of Dr. MacDonald have access to FBI Agent Tool's February 21, 1970 report of the briefing of the FBI by the CID. Contrary to the representation at page 3 of the Government's Memorandum of Points and Authorities in Opposition to Motion to Set Aside Judgment of Conviction Pursuant to 28 U.S.C. section 2255, this document was not made available to defense attorneys during the Army's Article 32 investigation.
(4) During the entire course of my representation I was never aware that any women's clothing or boots had been turned over to CID Investigator William Ivory. In fact, I was never aware of the existence of this clothing and boots.
(5) Although the defense was aware of the possibility of a small fragment of skin having been found under Colette MacDonald's fingernail, the CID laboratory reports furnished to the defense team led the defense to believe that this skin never existed. The lab report stated:
"Reexamination of Exhibits D-233 through D-239, D-256, E-4 and E-5 (fingernail scrapings from left and right hand of Colette, Kimberly [sic], Kristen MacDonald, debris from Colette MacDonald right and left hands) did not reveal the presence of any skin particles."
The defense did not incorporate the fact of the loss of the skin in the Kassab-Malley allegations, as the defense was not aware of the loss of the skin at this time.
(6) The defense never received copies of Ivory's statement regarding the skin. Therefore, relying on the representation in the lab reports the defense believed that what had appeared to be skin to the naked eye of Dr. Gammel was not actually skin.
(7) At no time during my representation of Dr. MacDonald did I or any other member of the defense team discover any reference to Agent Toledo's having photographed a letter "G" at Helena Stoeckley's apartment. Although the defense made repeated requests for photographic evidence, the defense did not have access to any photographs of the letter "G" painted on Helena Stoeckley's wall, nor was the defense ever aware that the government had discovered a letter "G" painted in Helena Stoeckley's apartment and compared it with the letter "G" written in blood at the crime scene. Rather, the defense was under the impression from Medlin's testimony at the Article 32 hearing that "the photographs when they were printed were blurred." Medlin had then indicated during his testimony that he had made more pictures to replace those that were "blurred" and that nine fingerprints and three palm prints had been lost in those new photographs.
(9) As early as the Article 32 hearing, Dennis Eisman, one of my co-counsel, requested that the Army provide investigating officers, counsel for the defense and the government with a set of the photographs so that they could conduct their own independent investigation regarding the identity of persons to whom those fingerprints belonged. Captain Somers replied:
"The negatives in this case, particularly the ones with which any difficulty might have been had, I can represent are undergoing further treatment, and so they are not presently available. The prosecution objects to complying with this request."
(Article 32 Hearing Transcript, page 536.)
(10) As late as 1979 the defense requested of the FBI fingerprint lab photos of all latent lifts or prints of photos taken of developed fingers from the crime scene, including those initially or subsequently evaluated as being of sufficient clarity for comparison purposes.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 27 day of August, 1984 at Phoenix, Arizona.
Michael J. Malley
Subscribed and sworn to before me this 27th day of August, 1984.