July 12, 1991: Affidavit #3 of John Murphy
re: His viewing of FOIA Material, with attachment
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
UNITED STATES OF AMERICA
Case No. 75-26-CR-3
JEFFREY R. MACDONALD
I, John J. Murphy, being first duly sworn, state under oath the following:
1. I am a paralegal with the law firm of Silverglate & Good, 89 Broad Street, Fourteenth Floor, Boston, Massachusetts, 02110, counsel for the petitioner Jeffrey R. MacDonald in the above-styled and numbered action.
2. I have reviewed materials released post-trial under the Freedom of Information Act ("FOIA") to Dr. MacDonald's prior counsel, Attorney Brian O'Neill, including the correspondence from the government which purportedly accompanied these releases. My examination of these FOIA materials --in addition to documents filed by the government in support of its position, the record in the case, and interviews with Dr. MacDonald's prior counsel and others associated with the defense --indicates that the "confirmatory" lab note of Janice Glisson (see Murphy Aff. 23, Ex. 1, p. 36, October 16, 1990), which I saw for the first and only time at the Army CID Crime Records Center in Baltimore, Maryland on May 7, 1990, was in fact never received by Attorney O'Neill prior to, nor during, the litigation involving the 1984 motions, despite the government's contention that it must have been released to O'Neill on August 7, 1984.
3. Statements contained hereinafter are made on information and belief, based upon my review of the files and FOIA materials, unless otherwise noted.
4. The government, in its Supplemental Memorandum of the United States, filed with the Court on May 20, 1991, makes the following statement: "More importantly, however, the 'confirmatory' Glisson bench notes, that petitioner now claims would have triggered further defense investigation were not first furnished to O'Neill1 by the government in 1990 as he maintains, but in August 1984, while the first habeas petition was awaiting argument in this court." (See, Gov. Supp. Memo, p. 7-8.)
5. In support of its papers, the government also submitted the Affidavit of George M. Andersen, who was purportedly one of the persons responsible for overseeing the release of Army CID FOIA materials to O'Neill. Attached to the Andersen Affidavit are copies of two letters, dated March 2, 1984 (Andersen Aff. p. 13, Ex. 69), and August 7, 1984 (Andersen Aff. p. 11, Ex. 71) from Andersen to O'Neill, concerning the release of Army CID laboratory bench notes, which were found at the Fort Gordon CID Laboratory.
6. With respect to the March 2, 1984 Andersen letter, the government contends that O'Neill was put on notice that additional FOIA requests made by O'Neill to the Army were being processed, and that additional FOIA materials might be forthcoming. As for the August 7, 1984 transmittal letter, the government maintains that this second letter from Andersen to O'Neill demonstrates that Glisson's second set of blond synthetic hair lab notes, which confirm her earlier questioned findings of 22-inch synthetic blond wig hairs, must have been released to the defense, because the number written on Glisson's confirmatory lab note falls within the sequence of document numbers listed in the letter. (Response of the United States To Defendant's Petition For Post-Conviction Relief Pursuant To 28 U.S.C., Section 2255 (hereinafter "GB"), p. 16, 77; Andersen Aff. p. 12-13).
7. After the oral argument, which took place before the Court on June 26, 1991, I undertook a further review of O'Neill's FOIA correspondence files. During the course of this review, I was unable to locate either the March 2, 1984, or the August 7, 1984, Andersen letters. Nor have I ever previously come across these two letters in O'Neill's files. In addition, at no time during the course of my various reviews of O'Neill's F0IA files, have I ever come across any document with a date stamp resembling that used by O'Neill's office, which has a date in the year 1984. The nonexistence of the August 7, 1984, transmittal letter in O'Neill's files serves as additional confirmation that O'Neill's office never received Glisson's confirmatory lab note, in which she confirmed her earlier questioned findings of 22-inch synthetic blond wig hairs. Moreover, the fact that the March 2, 1984, Andersen letter is also nowhere to be found in O'Neill's FOIA files indicates that O'Neill, or those working for him, had no way of knowing, prior to the filing of the 1984 New Trial Motions, that additional FOIA releases might be forthcoming from the Army.
8. In addition to the above, during the course of my most recent review of O'Neill's files, I came across an internal memorandum which further confirms that O'Neill's office never received Glisson's confirmatory synthetic hair lab note. This memo, dated June 30, 1986, from an employee named Steve Kapiloff to O'Neill, entitled "Jeffrey MacDonald, FOIA Request, Summary of Materials," appears to have been written in response to a request by O'Neill for an inventory of all FOIA materials that had been received by O'Neill's office as of that date. (A copy of this memo is attached hereto as Exhibit 1.) Kapiloff's review encompassed FOIA materials received by O'Neill from the Department of Justice, the Army, the FBI, the Bureau of Prisons and the Internal Revenue Service. On page three of the Kapiloff memo, the following appears with respect to FOIA disclosures by the Army CID:
It appears as though the Department of the Army (DOA) sent all of the materials requested to MacDonald. The material sent does contain some deletions. In a letter dated 12/19/83 BON [Brian O'Neill] requested that the deleted material be released. No reply to this request was in the file. A memo in the files says that 3,048 documents (it must mean pages) were sent by DOA. 59 documents (pages) were denied, then reconsidered and sent.
9. Two transmittal letters sent by the Army CID to O'Neill with the March 28, 1983 (Andersen Aff. 1 12, Ex. 55), and June 21, 1983 (Andersen Aff. 1 121 Ex. 58) FOIA releases, note the release) of "387 pages" and "2,122 pages" respectively, with "[a] total of 59 pages . . . retained for a more in-depth review." The combined total of these two 1983 Army FOIA releases is 3,048 pages, which is the exact number of pages, noted by Kapiloff during his re-review of the FOIA materials in O'Neill's possession in June of 1986, at a time when O'Neill was still Lead counsel for Jeffrey MacDonald, and well before he turned his files over to Robert Boyce of the MacDonald Defense Committee in February of 1987 (Boyce Aff. 2; O'Neill Aff. 12).
10. Thus, a complete review of O'Neill's files, contemporaneous and subsequent to the litigation of the 1984 New Trial Motions, showed the FOIA release of only 3,048 pages, which corresponds exactly to the number of pages released in the Army's combined March 28, 1983 and June 21, 1983 FOIA releases.
11. Had O'Neill or his office actually received the FOIA release of August 7, 1984 --which the government claims to have made, and which it alleges consisted of 2,012 pages --the total number of pages found by Kapiloff during his review of the FOIA materials, made long after the materials were supposedly sent by the Army CID FOIA office would have consisted of 5,060 pages instead of the 3,048 pages that he actually found. Interestingly, the Kapiloff memo makes note FOIA releases received by O'Neill's office from the FBI as late as 4/10/84, which were included in his review. This suggests that had materials been received by O'Neill's office from the Army in August 1984, they, too, would have been reviewed and discovered by Kapiloff and included in his memorandum to O'Neill. All of this leads me to conclude that O'Neill, for whatever reason, never received the FOIA materials which the Army CID FOIA staff claims to have released to him on August 7, 1984, and which the government contends would have contained Glisson's second set of bench notes confirming her discovery of the presence of 22-inch blond synthetic wig hairs in the clear-handled hairbrush found in the MacDonald home.
John J. Murphy
Signed and sworn to before me this 12th day of July, 1991.
David J. Fine
My commission expires June 10, 1994
1/ It is assumed that the government was referring to present counsel rather than Brian O'Neill in making this statement, as Brian O'Neill has not represented Jeffrey MacDonald since the end of 1986, and petitioner has not claimed that O'Neill received the confirmatory note in 1990, but that present counsel did.
CERTIFICATE OF SERVICE
This is to certify that I have this 12th day of July, 1991, served copies of (1) Motion of Jeffrey R. MacDonald to Enlarge the Records to Include the Slide Box Containing Synthetic Hair Slides, (2) Motion of Jeffrey R. MacDonald to Enlarge the Record with the Supplement Affidavit (#3) of John J. Murphy, upon each of the below-listed parties via first class mail by placing a copy of the same in a postpaid envelope to:
Margaret Person Currin
United States Attorney
Eastern District of North Carolina
P.O. Box 26897
Raleigh, NC 27611
Laura Ross Blumenfeld
General Litigation and Legal Advice Section
United States Department of Justice
P.O. Box 887
Ben Franklin Station
Washington, D.C. 20044
Philip G. Comier
Silverglate & Good
89 Broad Street, 14th Floor
Boston, MA 02110
O'Neill & Lysaght MEMORANDUM
From: Steve Kapiloff
DATE: June 30, 1986
SUBJECT: Jeffrey MacDonald, FOIA Request, Summary of Materials
1. DEPARTMENT OF JUSTICE
It appears that MacDonald requested all documents that the DOJ had concerning his case in 1980. DOJ responded that they had more than 90,000 pages concerning the MacDonald case. Later that year MacDonald modified the request. He told DOJ that he did not need any documents from the trial or other court hearings (approximately 51,000 pages) and he did not need any newspaper clippings (a large number according to DOJ). 14,000 pages of the original 90,000 originated with other departments, so DOJ sent these documents to the other departments for further review.
At this point, DOJ began sending documents to MacDonald. The documents came in 7 answers between February 15, 1983, and November 14, 1983. The documents released totaled 3,942 pages plus the 2nd volume of an interview of MacDonald conducted on 4/6/70, plus a copy of Col. Kriwanek's 2/18/70 press conference, plus a copy of a conversation between MacDonald and Alfred Kassab. Many documents were denied, approximately 4,400 pages. Of these denied pages approximately 3,000 pages were grand jury testimony. Several hundred more pages were attorney's handwritten notes. After an appeal 4 additional pages were released. Many of the documents which were denied were subsequently deleted from the request in a letter from BON dated 12/19/83. Attached are the lists of documents denied.
Apparently MacDonald would like to request much of the grand jury testimony which was denied to him. He is especially interested in the testimony of witnesses mentioned in McGinniss' book. He spoke to Diane on 11/25/85 and gave her a list of people whose testimony he wants. He wants:
1. Alfred Kassab
2. Mildred Kassab
3. Mr. and Mrs. Robert Stevenson
4. An unnamed reporter currently working in Denver, formerly from Fayetteville
5. Mrs. Donald Kalin
6. Mr. Donald Kalin
7. Pamela Kalin
8. 11 other members of the Kalin family
9. Bruce Bailey, M.D., psychiatrist from Walter Reed
10. Other psychiatrists and psychologists from Walter Reed
11. James Mack, Ph.d
12. Dr. Robert Sadoff
13. Carole Mae Larsen
14. Mary and Jack Andrews
15. Jack Andrews, Jr.
It appears as though the Department of the Army (DOA) sent all of the materials requested to MacDonald. The material sent does contain some deletions. In a letter dated 12/19/83 BON requested that the deleted material be released. No reply to this request was in the file. A memo in the files says that 3,048 documents (it must mean pages) were sent by DOA. 59 documents (pages) were denied, then reconsidered and sent. Attached is a list of requested information from the documents with deletions.
Originally the FBI withheld all documents in their possession. However on appeal they began releasing material. In total approximately 3,100 pages were denied, many with deletions, and about 300 pages were withheld completely. On 11/1/83 MacDonald requested all photos, data notes, and bench and lab notes concerning the blue pajama top. These documents were received on 4/10/84. Attached is a list of requested information from the documents with deletions.
IV. BUREAU OF PRISONS
MacDonald requested all of the materials contained in the Bureau of Prisons (BOP) file about him. BOP sent 23 pages of documents on 3/5/84. Many other documents were releasable only to a physician authorized by MacDonald to receive the documents. They claim that MacDonald can receive other files from "local staff". MacDonald says that he wants to request more from BOP (or local prisons). He says he needs to see more things about his moves.
V. INTERNAL REVENUE SERVICE
The IRS released one document which it had concerning MacDonald. All other documents cannot be released without his written approval.