Acid is groovy. Kill the pigs.” That, according to Army Capt. Jeffrey MacDonald, is what a blond woman in dark clothing was chanting as she watched three companions stab and bludgeon his wife and two little girls to death in their Fort Bragg, N.C., home one February night in 1970. Nearly a decade passed before a jury was persuaded otherwise, but finally, in 1979, the handsome Green Beret physician was convicted in federal court of murdering his wife, Colette, 26, and their two daughters, Kimberly, 5, and Kristen, 2. He was sentenced to three consecutive life terms. MacDonald, whose protestations of innocence were judged to be truthful by one polygraph examiner, has twice pressed his case all the way to the Supreme Court, without avail.
Now the crime, made into an NBC miniseries based on author Joe McGinniss’s 1983 best-seller, Fatal Vision, may produce yet another chapter. Boston attorney Harvey Silverglate, assisted by appellate-law whiz Alan (Reversal of Fortune) Dershowitz, has filed a motion for a new trial. Their argument: MacDonald’s prosecutors knowingly concealed evidence favorable to the defense, in violation of their legal duty to disclose it. That newly discovered evidence, his lawyers say, includes blond synthetic hairs and black wool fibers, the existence of which might well support their client’s contention that a blond-wigged woman in black clothing really was in the MacDonalds’ home.
MacDonald, now 47, says the new motion is the fruit of two years of research. In his 9-foot by 5½-foot cell at the Terminal Island federal penitentiary near Long Beach, Calif., he pored over every government case file he could lay his hands on under the Freedom of Information Act. “I was finally able to start reviewing the case files in 1987,” he says. “By the middle of 1988, I realized I was beginning to uncover material that could help me. For a whole year I wrote letters and made collect calls to Dershowitz and Silverglate, whom I’d heard and read of through the years. Each time they’d say, ‘This isn’t enough. We need more than this. Send us more.’ When they finally agreed to represent me, I was in my cell on the phone with them, and they said, ‘These new documents you’ve uncovered about the black wool and the synthetic blond hair are fascinating. It seems to corroborate what you’ve been saying for 20 years.’ When they said they’d take the case, I literally let out a whoop and jumped for joy.”
MacDonald and his private investigator Ellen Dannelly had sifted through thousands of pages of documents, comparing forensic technicians’ handwritten notes against the typed summaries that prosecutor Brian Murtagh had presented at the trial. “And lo and behold, here were all these unidentified bits of evidence that were not in the official exhibits,” says MacDonald. “Every single exhibit had stuff that was good for the prosecution on it, and nothing that was good for me.
“I can’t describe the anger I felt—deep, serious anger. I’m angry at the people who murdered my family. But you know, it’s almost easier to deal with them than the intentionality of Murtagh. I’d expect it from people in the drug underworld, but not from normal people.”
MacDonald’s outrage is echoed by Silverglate, 48, a longtime civil-liberties crusader whose firm is handling the case pro bono. “Our free cases either involve great issues or they involve somebody who has been so royally screwed that we just can’t in good conscience let it go,” the attorney explains. “MacDonald fits both categories. He has been screwed as bad as anybody, in fact worse than anybody I’ve seen in the 23 years I’ve been a lawyer.” Silverglate stops short of alleging that Murtagh set out to frame an innocent man. He speculates that the prosecutor was convinced of MacDonald’s guilt. “When you believe that somebody has really committed the crime, it’s easier to play a little fast and loose with the rules. I think he thought he was framing a guilty man.” Brian Murtagh, now an assistant U.S. attorney in Washington, D.C., has refused comment.
As important as the physical evidence, MacDonald’s advocates argue, is the testimony that might have been admitted along with it: Several witnesses were prepared to swear that Helena Stoeckley, a onetime denizen of the Fayetteville, N.C., drug scene who died in 1983, had admitted that she—black-clad and bewigged—watched as her friends committed the murders. But federal district court judge Franklin T. Dupree excluded such hearsay testimony, because so far as he knew it was uncorroborated by any physical evidence. (Stoeckley herself denied from the witness stand any personal knowledge of the crime.)
“Somebody is going to have to explain why the reports that were shown to the jury, to the judge, to the defense, systematically excluded this enormously probative evidence,” vows Silverglate. “I’m convinced we’re going to win this. I don’t see how we can lose it.”
Co-prosecutor Jim Blackburn dismisses the arguments emanating from Boston. “My recollection is that the defense was provided access to all the physical evidence,” says Blackburn, now a defense attorney in Raleigh, N.C. “At the trial itself, a number of witnesses testified that there were some unidentified hairs or fibers. That’s not a great surprise. So when the defense now says there was irrefutable evidence there were intruders there and that MacDonald is innocent, that just doesn’t wash.”
Still, argues Dershowitz, “Jeffrey Mac-Donald should get a fair trial at which all the evidence is presented. And however the chips fall at a second trial, that’s the way they ought to fall. MacDonald is either one of the most brutal killers in the history of American jurisprudence or one of the most vilified victims of an American legal injustice. And I, for one, simply have to get to the bottom of this.”
Almost forgotten, amid the legal maneuvering, are the young mother and two children who died that rainy night nearly 21 years ago. But Mildred Kassab, 74, thinks of her daughter, Colette, every day. “Sometimes I remember her as a little girl. She was such a good little girl,” she says softly, in the Rockledge, Fla., home she shares with Colette’s stepfather, Fred, 69. “Sometimes I remember her married.”
“[Jeffrey MacDonald] was a nice young man,” says Fred Kassab. “We liked him.”
“But I found out early on, when they were first married, that Jeff was a wonderful liar,” says Mildred. “I found him lying over tiny details, whether it rained yesterday or it didn’t. He just had to lie. That I always knew.”
Fred Kassab, at first MacDonald’s staunchest supporter, became his implacable adversary after personally investigating every detail of the crime. “By the time I got through, I was positive the son of a bitch was guilty,” he says, pounding the table. “Things could not have happened the way he said they happened.” Kassab, who pressured authorities into trying MacDonald in the first place, is confident that this latest motion will fail. “They say the government hid the fact that in one of the hairbrushes there were long, blond [synthetic] hairs. While the murders are going on, she’s brushing her hair?”
“They didn’t say that Kris had 20 dolls with different lengths of hair,” adds Mildred.
“He’s convinced a lot of people that he’s innocent,” concludes Fred. “He’s a brilliant boy. He manages to buffalo everybody he comes in contact with. The guy’s got absolutely no conscience. He’s a true psychopath.”
MacDonald despairs of convincing the Kassabs otherwise, or even of persuading the public. “You feel like yelling out, ‘Hey! I didn’t do that!’ But after a while you get hardened to it,” he says. “You realize you can’t tell it to most people.”
Though MacDonald technically becomes eligible for parole in April, he knows his only real chance for freedom lies in Silverglate’s motion, to which the government must respond by Jan. 8. “I think vindication will definitely be forthcoming,” he says. “The quality of this new evidence and the kind of lawyers I have are going to make a difference. Hope has arisen.” Now he says he must look to the future. “I can’t allow myself to look back, waste time complaining, being bitter, vindictive. The worst thing that could happen now is for the rest of my life to be destroyed because I’m so angry over what they did to me.” By “they” he means the prosecutors. But what of the murderers? “They were sick,” says Jeffrey MacDonald, as the tears begin to well. “They killed my family.” And Murtagh? “It’s just incredible. How can someone do something like that to another human being?”
James S. Kunen, Dan Knapp at Terminal Island, Stephen Sawicki in Boston, Don Sider in Rockledge, Marilyn Balamaci in Washington, D.C.