February is a special month—its brevity makes us hopeful that winter, at last, is beginning to languish and spring is on its way. And the universal day to celebrate love—or even like—looms large. Cupids and Didos abound, tugging at the strings of all but the most cynic of hearts, and retailers do a land office business in roses, chocolate and bling. Valentine’s Day has something special for nearly everyone.
But not always. There was a decidedly different mood at the MacDonald household, just after Valentine’s Day, in 1970—February 17, to be exact. Around 4 a.m., Dr. Jeffrey MacDonald, a dashingly handsome Green Beret army captain and surgeon, woke up in a pool of blood, suffering a punctured lung and facial wounds, to discover his pregnant wife and two young daughters had been brutally beaten and stabbed to death. The scene was a shambles, despite a few Valentine’s Day cards standing sentry. He claimed hippies broke into the house and did the deed. The cops were not so sure, nor was his step-father-in-law, who initially believed in his innocence but then spearheaded the case that ultimately found him guilty and now serving 3 concurrent life sentences. He has been locked up for 33 years, and still claims he didn’t do it. A best-seller and TV miniseries say otherwise.
I remember the miniseries in 1984, based on the book Fatal Vision by Joe McGinniss, and like most everyone who watched it, was mesmerized. Could a parent be capable of massacring his family—particularly his children? I had my doubts—there seemed to be no motive. So I bought the book, and when I finished it, rendered my own verdict—guilty as charged. McGinniss started out thinking MacDonald was innocent, but subsequently changed his stripes mid-stream, and tossed his subject under the bus. McGinniss claimed it was MacDonald’s request for running shoes that turned the tide. MacDonald thought that by running in prison, he could manage stress—something serious runners acknowledge as a top benefit. (Full disclosure: I am one of those). And if being locked up for something you didn’t do isn’t stress, what is?
Errol Morris, an Oscar-winning documentary film maker, famous for The Thin Blue Line (that resulted in freeing a man on death row) and The Fog of War, (Robert McNamara’s mea culpa on Vietnam) has built a career studying crimes in which he contends there was a miscarriage of justice. In his new book, A Wilderness of Error, he makes a compelling case that, whether or not MacDonald committed the crime, he certainly didn’t receive a fair trial. While parts of his prose are ponderous, his strongest points are that the judge may have been prejudiced and that important evidence helpful to the defense was suppressed.
MacDonald and his cute wife Colette grew up on Long Island and were high school sweethearts. Married in college when they were 20 with a baby on the way, MacDonald was studying at Princeton on scholarship, and then went on to Northwestern’s Medical School. He was practicing surgery at Fort Bragg, North Carolina, and had just been accepted to an orthopedics residency at Yale to begin after his army stint. But he soon became the prime suspect in the brutal slaughter. The Army conducted an Article 2 Hearing (akin to a civilian grand jury) the results of which were (1) the charges against MacDonald were not true; and (2) a strong suggestion that the FBI step in to investigate an alibi of Helena Stoeckley’s, a woman whose description matched that of the person whom MacDonald claimed to have seen at the house that night. J. Edgar Hoover refused to touch the case, believing that the crime scene had been badly botched.
But, ultimately, the feds prevailed. It took nine years, but MacDonald was brought to trial in criminal court in 1979, and the jury deliberated just 6 hours before reaching its verdict: guilty of 2 counts of manslaughter (for his wife and older daughter) and 1 count of murder in the first degree (for the death of his youngest.) MacDonald went to prison, served a year, won his appeal and was released in 1980, but the Supreme Court overturned that decision in a 6-3 ruling. He went back to prison, where he’s been ever since. Justice Thurgood Marshall wrote the dissenting opinion, and commented “It is possible that Stoeckley’s testimony would have been less confused and more helpful to MacDonald at an earlier date…the majority’s opinion is a disappointing exercise in strained logic and judicial illusion”. Of course, most criminals claim innocence, and MacDonald is no different. Except that having been incarcerated since 1979, he was eligible for parole in the 1990s, and yet refused to apply, still swearing he didn’t do it. Morris makes a logical point: if admitting to the crime is the first step in winning parole, why would MacDonald refuse to do so? Chances are, by showing contrition, he might have been released by now. What more did he have to lose?
Morris raises another issue—lack of motive. Just a couple of months before the murders, MacDonald had purchased a pony for his eldest daughter Kimberley for Christmas. Is it conceivable that this loving gesture could come from the same guy who stabbed her to death a few weeks later? None of the investigators ever had a viable theory as to what drove MacDonald to commit such a heinous crime. But McGinniss posits that MacDonald, who had been a star athlete in school, took diet pills—but didn’t lots of people do that then? Could a diet pill rage cause someone to lose it in such a ghastly fashion? MacDonald admitted to having extramarital affairs—but the early 1970s was the time of free love, anything goes, drugs and Vietnam War protests—and lots of people slept around. That doesn’t make them killers.
MacDonald didn’t help himself, either. During the intervening years, he appeared on the Dick Cavett Show and talked about being harangued by the police, rather than sounding sorrowful. He also moved to California to run the emergency room of a hospital, bought a sports car, started dating and got engaged. One could legitimately ask, what is the proper length of time to indulge grief? Does the statute of limitations on mourning ever run out? The life he led as a married father was over. Was he to be relegated to a life of sackcloth and ashes? Was he entitled to move on? Apparently not.
Morris digs into the forensic details of the case to examine evidence, and at times the book gets bogged down in too much minutia. We learn more about fibers and hair follicles than we ever want to know. But some of each was found that matched no one in the house on that gruesome night. In addition, the drug-abusing Helena Stoeckley, the defense’s star witness, confessed to seven people, on different occasions, to being at the scene of the crime. Arguably, she was considered an unreliable witness, and indeed, recanted her testimony. But she also subsequently said she was there and knew who did it.
There’s even a seamy side to the sordid mess: alleged witness tampering. One of the investigators claimed he was present when his colleague threatened Stoeckley with indictment if she dared to testify. The colleague later was disbarred, fined and sentenced to jail.
Morris’ most critical point, however, is that there was evidence the judge, Franklin T. DuPree, was biased. At the very least, according to him, DuPree should have recused himself, since one of the early investigators, Assistant US Attorney James C. Proctor, was both his former employee and son-in-law. And on this point, he makes his strongest case.
Judges would not be human if they did not have an opinion after hearing the same evidence that the jurors heard. After speaking to a few judges (none of whom wished to be quoted), I wonder whether Morris is right. According to Dimitry Bam, writing for the Brigham Young University Law Review, “In the United States, judges are required to recuse themselves—that is, remove themselves from participating in a case—not only when they are biased, but even when they may appear biased to a neutral observer. This nominally strict, appearance-based recusal standard is intended to ensure the judge’s impartiality in resolving disputes and to protect the judiciary’s reputation”. He then presents a compelling argument for even stricter rules.
The first canon under the Code of Conduct for United States Judges currently covers this same issue for federal judges, although, incidentally, not for those on the Supreme Court. Under the Code, judges in effect self police themselves and are supposed to step aside when they have a conflict. Would being the former boss and father-in law of the Assistant US Attorney be a qualifying conflict?
Of course, lawyers defend the guilty all the time—that’s their job. But judges are different—they are supposed to ensure that defendants get a fair—not necessarily “perfect”—trial. The book cites many examples of rulings by Judge DuPree that, to be charitable, appear questionable.
The judges I spoke to about recusal, and how they manage to preside over a fair trial when the stakes are so high, all agree: it is a dilemma. One judge said he tries to hold the prosecutor to a higher standard just so there is no appearance of bias. A judge in whose courtroom I served on the only jury for which I was ever selected, reiterated a couple of rulings he made in favor of the defense; even some of the more liberal of my fellow jurors thought both to be a bit of a stretch.
Another likens judicial bias to the same principles applied during jury selection, when most jurors are predisposed to view a defendant one way or the other. Yet the standard remains, can the juror listen to the evidence, evaluate it and render, beyond a reasonable doubt, a fair verdict? The same holds true, or should, with judges.
In New York State, judges are bound by People v. Moreno, which holds that the judge is the “sole arbiter” and it is up to him or her to step aside when there is bias. Do they do it? “Some of us (judges) are better at it than others”, said one.
There is a provision in the legal system for an attorney to file a motion of recusal. MacDonald’s attorney, Bernie Siegal, did just that. It was denied, of course, by none other than Judge DuPree. Siegal also thought DuPree disliked him, and some of the judge’s rulings seemed to reflect it. It was unfortunate. It also, according to Morris, destroyed Siegal’s career. He left the practice of law and became a law professor.
Do judges suppress evidence? Not the ones I talked to. Every judge has the Sword of Damocles hanging over him: being reversed in the Court of Appeals. It’s not pleasant.
Did Jeffrey MacDonald do it? The only one who knows for sure is he. But Morris meets the standard of proof that MacDonald didn’t get a fair trial. A seven-day hearing was held in September 2012 to weigh new evidence in the case and to determine if it warrants a new trial. As we go to press, the decision remains with the judge, and his decision will be forthcoming sometime in 2013. We hope his decision is fair.
Photo of Jeffrey MacDonald as a Green Beret courtesy of AP