He had subpoenaed Stombaugh's undergraduate records from Furman College. He asked Stombaugh if he had ever taken a physics course while in college. Stombaugh said that he had.
"And that was the course you got a D in, isn't it, Mr. Stombaugh!" Segal shouted.
As government attorneys loudly objected, Judge Dupree instructed the jury to disregard Segal's remark.
"Your honor," Segal said, spinning to face the judge, "this man has been qualified as some kind of pseudo-expert. I want to find out—"
"Objection!" Brian Murtagh shouted.
"I want to know whether he has any basis for making the statements he has made," Segal said.
"Now, wait a minute," said Judge Dupree. "If you have any arguments to make, you make them here at the bench."
"I will make them wherever your honor will decide they should be made," Segal said with an air of exaggerated politeness that bordered on insolence.
"Well, I just said right here at the bench." Judge Dupree then turned to address the jury. "Members of the jury," he said, "counsel has just made a statement to the effect that this witness has qualified as some kind of pseudo-expert. The court considers that that comment was improper. The court can understand that counsel—as I've told you before—may in the heat of battle sometimes say things that on further reflection they might not have said. I ask you, however, to disregard that comment. It will be for the jury to determine whether or not this witness is an expert. As the court has said, the evidence tends to show that he is. It will also be for the jury to determine what weight, if any, his testimony is to be accorded."
By now, Bernie Segal had reached the bench, where Judge Dupree told him, "I have apologized for you about all I am going to before this jury. I don't want your client to be prejudiced before this jury by outbursts such as this last one you made. I have an obligation to look after him as well as everybody else in this case. And I want to see that it is done. If you have got any outbursts to make, or if you want to make any argument, come up here."
Segal's cross-examination, however, continued in a bitter, sarcastic vein. Focusing on Stombaugh's assertion that one of the bloodstains on the sheet could have been made by a bare shoulder, Segal said, "As a matter of fact, don't almost all of us have some kind of very fine hair on our shoulders?"
"That is right."
"Did you find any hair lines on that smear?" "No, sir."
"Did you look for any?" "Yes, sir."
"How did you look for them?" "With a magnifying glass."
"Ah!" said Segal, stepping backward and raising his eyes toward the ceiling, in mock astonishment. "We have a scientific instrument here."
"Objection!" shouted Jim Blackburn.
"All right," Segal said sharply, glaring toward Blackburn. "It's not a scientific instrument."
"Objection!"
"Members of the jury," Judge Dupree said wearily, "disregard the comment of counsel about the magnifying glass."
In regard to the bloodstains on the sheet that Stombaugh had said were made by the pajama cuffs, Segal said in accusatory fashion, "You just took the cuff and you took the bedsheet and you looked at them side by side. Is that what you did?"
"I did a little more than that, sir. I sat down and studied the stains for long periods of time."
"Did you say, 'study'?"
"Studied them, compared them, examined them, things of this
nature. A direct comparison to locate the area on that cuff that corresponded with that stain."
"Studied," Segal said scornfully. "How did you 'study' it? By looking at it?"
"Looking at it," Stombaugh agreed.
"Compared—how did you do that. By looking at it?"
"Direct comparison. Yes, sir."
"Well," Segal said, his voice suddenly rising to a shout. "Every word that you've used—every adjective—that meant only that you looked at it and you looked at it and you looked at it! Is that right, Mr. Stombaugh?"
"That is correct."
"If the jury then gives these items the same attention, they will be able to do exactly what you were able to do, is that right, Mr. Stombaugh?"
"Perhaps."
"There is no secret scientific method that you used that they are not aware of, is there?! That you haven't told us about?!" "No, sir."
"It is just looking!" Segal screamed. "That is what your fabric impression testimony is about. Just looking!''
"I believe that is what I have testified to," Stombaugh said.
It was, undeniably, far from what Victor Woerheide had told Dr. Sadoff while the grand jury had been in session: that the field of fabric impressions study was the scientific equivalent of fingerprint analysis. But the jury would not be concerning itself with what Victor Woerheide had said four years earlier. The jurors would be interested only in whether—to them—the stains on the bedsheet appeared to have been made by the bloody cuffs of Jeffrey and Colette MacDonald's pajamas.
Toward the end of his cross-examination, Segal tried to invalidate the pajama top reconstruction.
"Now, you told us yesterday, Mr. Stombaugh, that you did not really do this little demonstration with the pajama top exactly the way it was on Mrs. MacDonald's body. Isn't that what you told us yesterday?"
"No, sir. We folded it—"
"Did you say that or did you not say it yesterday?" Segal interrupted sharply. "Then you can explain as long as you want."
"Object to comments of counsel," Brian Murtagh said. "It is not a comment to tell a witness he can answer," Segal said. "Your honor, I resent that. It is not a comment to say that I will give him all the chance to answer a question. It interrupts cross-examination needlessly.''
"All right, now," Judge Dupree said, 'if you have some objection to make, the customary way to do it is to come up here. I will not take any lectures from counsel from either side. If there is an objection and you want to be heard, we will hear it at the bench."
"My response, your honor," Segal said, without taking as much as a single step toward the bench, "is I do not think I was making a comment when I said I would give the witness a chance to answer."
"There was an objection before the court. I was prepared to rule on it, but we had another lecture superimposed on the subject."
"I apologize," Segal said.
"That is what I am calling to your attention."
"I did not mean to do that."
"Restate your question and we will let the witness answer."
"Yes, your honor. Let me just regather my thoughts." After a short pause Segal continued.
"Do I recall you correctly," Segal continued, "as having told us yesterday that you did not fold the pajama top in the demonstration exactly the way it appeared in the photographs?"
"We folded the pajama top as close to it as we could."
"That is the most you are willing to say about the way you folded it for your demonstration?"
"And when we folded it that way, then we observed twenty-one holes in the top."
"Before we get to the holes, I just want to understand whether, when you finished folding it, you think you got a fairly good replica of the way the garment was laid over Mrs. MacDonald's body."
"Yes, sir. I feel we did the best we could." "Well, doing the best you could—is that the same as being a pretty good replica?" "I would say so."
"Is that the strongest statement you are willing to make in support of the way the garment was folded—that that, you think, is the best you could do with it?"
"Working with what we had, we did the best we could."
"Well, now, tell us some of the ways in which your experiment in folding is really different from the photographs."
"Mr. Segal, I have been answering your question—the same one over and over—the only way I can answer it. We folded the pajama top the way it appeared in the photographs. We found twenty-one holes in the surface. The question was: Could those twenty-one holes on top be lined up with the forty-eight holes? Could this be done? And we—"
&nbs
p; "Didn't you just simply tell them, Mr. Stombaugh,,, Segal interrupted, ‘‘ ‘Of course you can take any forty-eight holes and put them in twenty-one holes'? That that is not a scientific experiment! Did you ever tell them that?!"
"Objection!" Brian Murtagh said.
‘'Objection sustained," said Judge Dupree.
Sustained objections notwithstanding, Jeffrey MacDonald was exuberant by the time Segal had finished.
‘‘Stombaugh's the reason I'm here," MacDonald said later that day. "Him and Brian Murtagh. And Bernie just absolutely destroyed him. You've just seen their smoking gun turn into a piece of shit. If the judge had any balls at all, he'd throw the whole case out right now. He wouldn't even make us put on our defense."
In private, Segal raged against the judge in the vilest terms imaginable. He raged against Republicans, of whom Judge Dupree was one. He raged against the South. He raged against the U.S. Army and the FBI and the U.S. Supreme Court: all those forces that had conspired to present Judge Dupree with this opportunity to exercise his malevolence.
Segal seemed to bear no less antipathy toward Brian Murtagh. While it was Jim Blackburn—that courtly young Southern gentleman—who had been presenting the bulk of the prosecution case, it was Murtagh, Segal's adversary from grand jury days and surrogate for and successor to the Grand Inquisitor, Victor Worheide, who had been besting Segal in argument on the evidentiary points before Judge Dupree.
Early in the trial, Dupree had noted the depth of bitterness which seemed to exist between the two men and had called them both to the bench to issue a warning.
‘'The reason I want you both up here," he had said, ‘‘is because it has been apparent to me from the very first time that the two of you appeared in this court that there was a certain amount of friction and animosity between you.
"I quite understand. I sat out there for thirty-four years. In the dog days of August and during the third week of a trial you may spurt off something that you, on reflection, would not have done. You did that yesterday," he said to Segal. ‘‘You were just about to do it again today, and I must say—and this applies to both of you—I am not going to have it.
"The thing that I am apprehensive about is this: one or the other of you, if you show these displays of temper and hostility and animosity, are going to prejudice your client. I am here to see that this trial is conducted fairly, and I am not going to tolerate its being tried in a climate of hostility for either side. We are going to try it calmly.
"It ain't your case," he said to Segal, "and," turning to Murtagh, "it ain't yours. It belongs to the parties in the case and you are just here in a representative capacity—both of you—and I am expecting both of you to so conduct yourselves.
"The last thing I ever would do, if I could avoid it, would be to embarrass a lawyer in front of a jury and his client. But if I have to do it in order to maintain order in this court and conduct this trial like it is supposed to be, then that is what I am going to do."
Following that lecture, Segal, for at least a few days, seemed to keep his distaste for Murtagh under tighter control, at least within the confines of the courtroom.
But as Dupree ruled against him time and again, and as his bitterness and frustration grew, Segal, who had been described as "the picture of confidence" in one newspaper account only a few days earlier, began to vent spleen in the press; and since it would have been grossly inappropriate (and counterproductive) to make public some of the private opinions he held regarding the attitude of Judge Dupree, it was Brian Murtagh who became the focal point of Segal's public outrage.
"What I dislike with considerable intensity," he told one reporter, "is that Murtagh is an anonymous, faceless little man who, in the outside world, would be of very little consequence to anybody's life. But he, as a bureaucrat, is suddenly draped with the power of the whole United States government, and people act as if he is a person with the judgment, intelligence, and maturity to be taken seriously."
Murtagh at thirty-two was just as thin and sallow, his hair was just as lank, and his manner was just as acerbic as it had been five years earlier when Jeffrey MacDonald had called him a little creep and a viper who did not know any of the social graces. Murtagh's sense of moral outrage that MacDonald had not yet been convicted and imprisoned had grown even greater over the years. (He had accompanied Paul Stombaugh to the cemetery in September of 1974 and had gazed into the opened coffins at the physical remains of Colette and Kimberly and Kristen, and the memory of what they had been then, as compared to a vision of what they might have been had they been permitted to live, was not one which would ever fade.) He chose not to respond to Segal's attacks.
"I just don't deal with Bernie if I can avoid it," was all he said.
At a surprise party at the Kappa Alpha house—the occasion being Bernie Segal's forty-ninth birthday—the highlight was the presentation to Segal of a set of darts and an enlargement of a recent photograph of Brian Murtagh.
One by one, each member of the defense team took a turn throwing darts at the picture. Jeffrey MacDonald scored a direct hit. He cheered for himself as his attorneys and their assistants clapped and laughed. In high spirits, he seemed oblivious to the possibility that, under the circumstances, it might not have been appropriate for him to be propelling a sharp pointed object toward even the photographic representation of a human being.
MacDonald's buoyancy might have been lessened even further had he been aware of the private remarks which a criminologist, hired by the defense as an expert witness, had made to Bernie Segal after having learned of Paul Stombaugh's findings.
"This is very convincing evidence," the paid expert said, referring to Stombaugh's pajama top reconstruction. "Now I see why they got the indictment."
Segal attempted to be dismissive, discoursing at some length about how even the government's own theory of the crime offered no plausible explanation for why MacDonald would have placed his pajama top on his wife's chest before stabbing her with the icepick.
The criminologist simply shook his head. "You can raise all that, Bernie, but this is like a fingerprint. Holy Christmas! That's very convincing stuff. Bernie, I'm not an attorney, but after seeing this my advice to you"—and here he leaned forward and gave Segal an avuncular pat on a pin-striped knee—"is to get as much as you can into the record for appeal."
Over Segal's strenuous objections, the jury visited 544 Castle Drive. On a very hot and very sunny August morning—a day as different from February 17, 1970, as a day could be—the twelve somber, silent men and women (and four alternates) filed through the musty, cramped space in which Colette and Kimberly and Kristen MacDonald had been clubbed and stabbed to death.
Jeffrey MacDonald, wearing a dark, heavy pin-striped suit despite the heat, also re-entered the apartment for the first time since he'd been carried out on a stretcher, nine and a half years before. He had no role to play, no function to perform, but Bernie Segal wanted to be sure that the jurors were aware that no sense of guilt prevented MacDonald from returning to the scene of the crime. Afterward, he stood outside in the company of Segal and Wade Smith. A crowd of perhaps one hundred had gathered behind barricades erected by the military police.
As the jurors re-entered the van that would carry them back to Raleigh, and as MacDonald prepared to return to Wade Smith's station wagon, he was surrounded by a throng of excited housewives and smiling children who called out words of encouragement. Some of the children even rushed forward to shake his hand.
Like a baseball player signing autographs on his way out of a stadium, MacDonald worked his way slowly toward the car. It was the first time in nine and a half years that he had made physical contact with a child on Castle Drive. It was nice, he said, once he was inside and the air conditioning had been turned on. He appreciated such signs of support. The children waved at him as he departed.
Back in court, the prosecution played a tape recording of the April 6, 1970, interview. This was an event which marked for more than one member of t
he jury the end of the presumption of innocence.
"Until I heard that," a juror would comment later, "there was no doubt in my mind about his innocence. All the evidence had just seemed confusing. But hearing him turned the whole thing around. I began to look at everything in a whole new way. There was something about the sound of his voice. A kind of hesitation. He just didn't sound like a man telling the truth. Besides, I don't think someone who just lost his wife the way he said he did would have sat there and complained that her kitchen drawers had been a mess."
"There was a cockiness," another said. "Arrogance when there should not have been arrogance. It was so different from what I think my own attitude would have been under the same circumstances that it just started me wondering what kind of man he really was. After the tape, I started to believe he could have done it. And once you start to believe that—with all the evidence the government had—it's not a big step to believing that he did it."
And then came the day on which Mildred Kassab testified. For a while she had attended every session of the trial. Then the judge had ruled that anyone who would later be called as a witness would not be permitted in the courtroom prior to testifying. After that, Mildred spent her days in a small apartment, just a few blocks from the courthouse, that she and her husband had rented for the duration of the trial. With the shades pulled low against the heat and the steady hum of air conditioning in the background, she resumed writing in the journal she had begun years before—forcing up the memories, even the worst of them, as a means of preparing herself to testify.
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