"Now if the defendant himself didn't go to bed that night before with a pajama top with forty-eight holes in it," Blackburn said, "then how did those holes get in that pajama top?"
Colette's pink pajama top, Blackburn argued, had not been included in the reconstruction simply because it was not relevant. Of course there would have been holes in Colette's pajama top: she had been wearing it when she was stabbed. The point of Stombaugh's demonstration had been to determine whether the physical evidence would support the contention that the icepick holes had been made in the blue pajama top after Jeffrey MacDonald had placed it on the body of his wife.
"Because if we can show this," Blackburn said, "we show that it is totally and utterly inconsistent with his own story. Is it prejudicial? Yes, I would say it is. That is precisely why we seek to introduce it. I don't think it is erroneously prejudical. I think it shows, frankly, that his story is wrong and that it is at variance with the facts as we know them today."
Judge Dupree agreed to let the jury hear Stombaugh's explanation of what he had done with the torn blue pajama top and to allow him to describe the conclusions to which his work had led him.
He took a less tolerant view, however, of the relevancy of Colonel Rock's report on the 1970 military hearing—the report which concluded that the charges against MacDonald were "not true."
"I am concerned about the confusion which may arise in the minds of the jurors if this kind of evidence is admitted," the judge said, during another bench conference. "Won't a jury say, 'How can this man be not guilty in the Army and be guilty in this court?' Won't an argument appeal to the jury that, 'In the Article 32 proceeding there was only required to be a finding of probable cause to prosecute. If a four-month trial there didn't result in even that marginal finding, then how on earth can we, the jury'—wouldn't they say?—'say on virtually the same evidence that this man is guilty beyond a reasonable doubt?' "
It was for precisely this reason, of course, that Segal wanted so badly to have the Rock report introduced as evidence. But to do so, Judge Dupree continued, would be to suggest to the jury that a valid judicial proceeding had already occurred and had led to a finding of not guilty. The entire trial, then, would be invalid under the constitutional protection against double jeopardy. Since, however, the double jeopardy argument had already been made, unsuccessfully, by the defense prior to trial, no suggestion that the charges against MacDonald had been "not true" in 1970 should be allowed to influence the jury's decision in 1979.
To admit the Rock report, Dupree concluded, would be to imply "that on this evidence no jury could find the defendant guilty beyond a reasonable doubt," and for that reason he excluded it.
An even more serious blow to the defense was dealt when Dupree ruled that no psychiatric testimony would be admitted at trial. In July, prior to trial, Bernie Segal had arranged for MacDonald to be questioned for six hours in the office of a Beverly Hills hypnotist. The entire session had been videotaped. Segal had then edited the videotape and had brought a ninety-minute version with him to Raleigh, hoping to be able to show it to the jury.
One evening at the Kappa Alpha house he screened it for a very small audience which included a forensic psychiatrist from the University of North Carolina. The psychiatrist had already examined MacDonald and had written a twenty-four-page report which he ended by saying:
On the basis of my clinical experience as a psychiatrist and criminologist and on the basis of my knowledge of theories and research into the area of violence, I would conclude that there is only an extremely remote possibility that a person of his type would commit a crime of this type. Certainly, no one with Dr. MacDonald's personality organization has ever been known to commit such a crime.
It was Segal's intent to have both the Chapel Hill psychiatrist and Dr. Sadoff from Philadelphia testify regarding the improbability of Jeffrey MacDonald's having murdered his family, and then to have the jury watch the videotape of MacDonald, under hypnosis, actually reliving the night of the crimes.
The tape began with MacDonald giving a description of the intruders far more detailed than any he'd ever managed before. He described the black man as having a heavy, square face with "baby fat" on the cheeks; short, kinky hair; flared nostrils; thick lips; light brown skin; and a thick neck which would have taken a "sixteen and a half or seventeen" shirt collar.
The taller of the two white men had been stocky and muscular with a "tall" face, high forehead, short, clean, light brown hair, and a "muscular, weight-lifter's neck." His eyes had been "vacant," but he had been "good-looking" nonetheless. "A clean-looking guy," MacDonald said, with a "strong jaw" and a dimple in the center of his chin, "approximately three-eighths of an inch in length." In addition, he had worn a light tan windbreaker and a cross (about an inch and a half long) on a "fine chain" around his neck.
The shorter white man had been an Italian with greasy hair and a bad complexion. His face had been pie-shaped, he'd had a "thin, pencil mustache," "nasty, ferret, weasel" eyes, as well as a weak chin and skinny neck. He'd worn a gray sweatshirt with pockets in the front and had looked "wasted, like a doper."
The female, too, had been "weak-looking," with a "pointed chin," and "long, straggly, unkempt" blond hair. Her face had been "almond-shaped," her nose had had a bump on it, and she'd spoken in a "wasted, monotone" voice, with an "unpleasant, medium-high pitch." Her right eye had been shaded by a "light tan or off-white oyster color" hat which had been made of felt. The brim of the hat had been floppy and about "fifteen to twenty" inches across.
On the videotape, MacDonald then reenacted the attack. "What are you doing here?" he shouted to the intruders. "What the hell is going on? What the fuck are you people doing here? What are you assholes doing in my house? . . . Get the fuck out of here, you assholes!'' Then, having heard his daughter scream, ' Daddy, Daddy, Daddy, Daddy, Daddy!" he shouted: "Kimmy, I'll help you!''
His narration continued: "I'm trying to push them away. They're pulling me to the end of the couch by my shirt. Tm all—I'm all bound up. . . . My arms are all wrapped up. I can't do anything. I'm still trying to kick the fucking blanket off my feet! I—I—I—can't do anything! My hands aren't free. I can't do anything well. . . . They're punching me in the chest. My head hurts. . . . I've got someone's hand. I saw a blade. The fucking pain isn't a punch—I got stabbed. ... My fucking pajama top is wrapped all around. I can't free my arms! Fuck! Someone hit me with a club. I don't know what to do. I've got to get my hands free! I've got to keep them away. 'Acid is groovy . . . Kill the pig!' It's all I hear. No sounds. 'Acid is groovy . . . Kill the pig.' They're going to kill me! I can't keep holding on. I can't keep holding on! I can't do it! Fuck! I'm sliding forward. I see a knee—a bare knee. My arms! They're so heavy. I can't get them up. I can't get them up . . ."
Later, in a voice so distraught, so filled with pain and desperation that even the forensic psychiatrist began to cry, he recounted what had happened after he had regained consciousness. Giving mouth-to-mouth resuscitation to Colette ("The air is coming out of her chest! It's not working!"), observing Kimberly in her bed ("She looks bloody, too. She's my little girl. She looks funny. She looks dead"), and then Kristen ("Kristy, you'd better be okay. . . . She looks pale. She doesn't—doesn't look good. She doesn't look like she is breathing").
Toward the end, he described his final circuit through the house, returning first to Colette and lifting the pajama top he had earlier placed across her chest. ' I hugged her. I told her . . . the kids would be okay. I'm kneeling next to her. I want to see if her chest looks as bad as I first saw it. I put the pajama top back. I decide to check the kids one more time. I've got to check Kimmy. Kimmy is my little girl. I've got to go see her. . . . Kimmy is limp. Kimmy looks terrible. I pick her up. My left hand is under her shoulder, picking her up. My right arm is under her neck. I give Kimmy mouth-to-mouth. It doesn't feel right. The air must be escaping. I can't help her! I check her femoral pulse. There's no pulse. I pick up her bedclothes. And lay the
m on her. And go see Kristy. I have to see Kristy. Kristy has got to be okay. . . ."
The emotional impact of the tape, particularly on those not intimately familiar with the facts of the case against MacDonald, was overwhelming. "If he's guilty," the psychiatrist said, "he deserves an Academy Award."
To the immense chagrin of Bernie Segal, however, the jury never got to see the videotape. Indeed, the jury was not even permitted to hear from Dr. Sadoff or from the North Carolina psychiatrist, because of Judge Dupree's ruling—issued after MacDonald had submitted to examination by a psychiatrist and a psychologist employed by the prosecution—that such testimony was irrelevant in a case where the insanity defense was not being employed and, given the likelihood that the prosecution and defense psychiatrists would tend to contradict one another, that their testimony would be less than illuminating.
"The broad question of whether or not it is open to the defendant to bring in an expert opinion that his character is such that he probably would not have committed a crime such as this is a very, very close question," the judge said. "There is some good argument to be made on both sides.
"It is my own conviction," he added, "that to pit shrink versus shrink would simply tend to prolong the case and at best would prove something that would just tend to confuse the issues. The law on this, while certainly not settled by any stretch of the imagination, is not such as to allow this evidence to be admitted. And rather than let things run to Christmas, I would just as soon stop it now and wonder the rest of my life—which I would allot about three seconds to this—as to what they would have said."
During the fourth week of trial, however, the jurors did hear from Paul Stombaugh of the FBI laboratory. He was a fifty-two-year-old former football player from Furman College who had spent twenty-five years in the FBI before his retirement in 1976. For the last sixteen of those years he had worked in the FBI laboratory in Washington and had testified as an expert in hair, fiber, bloodstain, and fabric analysis in more than 300 criminal cases in forty-eight of the fifty states, and had appeared as an expert witness before the Warren Commission's investigation into the assassination of John F. Kennedy.
Unlike his grand jury appearance, at which he had been encouraged to articulate his theories, at the trial Stombaugh was restricted to fact.
Even so, his testimony was considered by many observers to be the most damaging to MacDonald of any given at the trial. It was through Stombaugh that the prosecution first informed the jurors of the following:
—that the cuts made in the pajamas worn by Colette, Kimberly, and Kristen MacDonald had been made by the sharp, straight Old Hickory knife and not the dull, bent Geneva Forge knife;
—that the cuts in Jeffrey MacDonald's torn blue pajama top had been made by the Geneva Forge knife.;
—that no cut in the pajama top corresponded to the location of the chest wound which had caused the puncture of Jeffrey MacDonald's right lung;
—that the pajama top had been torn down the left front seam and down the left sleeve in a manner which indicated that someone standing in front of Jeffrey MacDonald had ripped it as he spun away, and not—as he had told investigators—that it had either been torn over his back as he had fought with intruders or that he had torn it from his wrists himself as he had entered the master bedroom;
—that the top had been stained by Colette MacDonald's blood in at least four locations before it had been torn;
—that the forty-eight puncture holes in the pajama top were perfectly round, with no tearing around the edges, indicating that they had been made while the top was stationary, and not while MacDonald was using it as a shield to fend off an icepick-wielding intruder;
—that bloodstains on the Hilton bathmat corresponded with the shape and dimensions of the Old Hickory knife and the icepick, indicating that someone had either rested them or attempted to wipe them on the bathmat before discarding them out the back door;
—that bloodstains on the sheet found on the master bedroom floor matched impressions made by the bloody sleeves and cuffs of both Jeffrey's and Colette's pajamas, indicating that persons wearing those garments had come into direct contact with the sheet while the garments were still wet with blood;
—that the sheet also contained bloody handprints and, in blood, the outline of a bare human shoulder.
—that when the pajama top was folded as near as possible to the way it was folded on top of the body at the time the photographs were taken," twenty-one holes were discernible in the top layer of the garment, and that these fell into a grouping— sixteen on the left side and five on the right—which was consistent with the grouping of sixteen icepick holes on the left and five on the right side of Colette MacDonald's chest; and, further, that the remaining holes in the garment could be aligned with those top twenty-one in a manner which indicated that it would have been possible for someone to have made all forty-eight with twenty-one thrusts of an icepick—the same thrusts that had made the icepick holes in Colette's chest.
Understandably, Bernie Segal did not go quietly into the dark night toward which Stombaugh's testimony was leading. At a press conference called even before he began his cross-examination, Segal termed Stombaugh's conclusions "shocking" and "totally without foundation," and said, "excuse the pun, the biggest fabrication I have ever seen." Any scientific organization to which Stombaugh might have belonged, Segal said, should "throw him out" on the basis of his testimony at the trial.
Judge Dupree was less than charmed by Segal's outburst, particularly when, the next morning, Segal, at the bench, objected that the government was taking too much time to conclude Stombaugh's testimony, and, by repetitious questioning and use of charts and photographs to illustrate Stombaugh's words, improperly attempting to persuade the jury that Stombaugh's opinions had a scientific validity which he felt they lacked.
"They keep putting repeat copies of the same thing, so just in case, somehow in their closing arguments, they don't mention it fifty times, they will have mentioned it fifty-five. Now, your honor, you have repeatedly told me that I cannot argue with government witnesses. I cannot argue my case. Why is he being allowed to make argument—"
"Wait a minute," Judge Dupree said. "Are you insisting on a right to argue with the witness?"
"No, your honor."
"Or with counsel during the trial of the case in open court?"
"No, your honor, but what I ask for—"
"I just wanted to know if I had misunderstood the proprieties of the situation."
"The proprieties are, your honor—my feeling is that your honor has found that when I put questions to the government's witnesses, we are told it is improper to argue with the witnesses— that the time to argue my case would be at the end.
"Now, what the government does—they have ten photographs, exact duplicates of each other. They keep putting them up, attaching them to exhibits. They're showing the jury for the umpteenth time another copy of the same photo—that is duplicitous. It is repetitious. It has been in evidence more times than any of us can count. And I object. It is not fair to permit that. It is misleading. And I am saying there ought to be a limit at some point."
"Well, Mr. Segal," said Judge Dupree, "if the Lord lets me, I am going to treat both sides equally in this case. I am going to let both sides have a full and fair hearing, and develop their cases exactly like they want to. You are going to be fed out of the same spoon. That is the rule that obtains at all times in this court. I am going to give you all the time that you need. We have spent too much time in this case here now to be talking about duplicity.
"You spent forty-five minutes yesterday afternoon qualifying—or trying to disqualify—the witness here. And then you held a press conference, apparently, and expostulated further on his lack of requirements. And it appeared on the front page of the paper this morning.
"I am not complaining about that, but I am saying, as far as giving you the full opportunity to develop whatever you want to do, I am doing that for you and I am d
oing that for him.
"And while I'm at it, for whatever it's worth—and I say this to both of you—when lawyers give interviews to the press, it has been my observation over the years that lawyers who are entirely confident of their position and who believe in the correctness of their cause, eschew that kind of thing. To me, it just telegraphs some weakness.
"As far as the jury is concerned, I am hoping that they are
observing their oath and are not reading anything. There is always the possibility, though, that they will. Therefore, while I don't want to muzzle anybody, I don't see why we can't stick to our knitting here in the courtroom.
"I don't give a damn what appears in the paper, myself. But when it is on the front page, they can't escape it. They had on yesterday's front page verbatim quotations as to how the defense was going to destroy some witness—Stombaugh, probably, and all that stuff.
"Here again, I don't run lawsuits. I sat out there thirty-four years, and I saw a lot of judges that came to town and professed to know more about my case in two hours than I had been able to learn in three or four years of living with it. So I wouldn't do that. I will let you run your case.
"But for whatever it is worth, I'll say that I think talking to newspapers while the trial is in progress as to what you are going to do with your evidence and so forth—I think it may come very close to transgressing the rules of professional responsibility in ensuring a fair trial for both sides."
When Segal did begin his cross-examination, however, it was with a further attack upon Stombaugh's credentials.
Fatal Vision Page 59
