After two hours of Segal's rambling, sometimes incoherent, often vituperative, and consistently repetitive harangue, Wade Smith had found himself faced with what he considered to be perhaps the most difficult decision of his legal career.
Should he leave the defense table, walk to the lectern and whisper to Segal that he was running well over the previously arranged time limit, and what's more, he had not yet even begun to cover most of the specific points he had intended to include in his argument—or should he, because, as he had been made clear to him from the day Segal and his entourage had arrived in Raleigh, he was not, in fact co-counsel, but only another one of Segal's many assistants, just sit tight and let nature take its course?
Jeffrey MacDonald, the client, was sitting beside him. If MacDonald had so instructed him, Smith indeed would have made that long and embarrassing walk across the courtroom to tell the chief counsel that he was letting his last chance for even a hung jury, much less an acquittal, drown beneath the endless torrent of his words.
But MacDonald, though squirming uncomfortably in his seat from time to time, like each of the jurors and everyone else in the courtroom except Segal, did not issue any such instruction. So Wade Smith sat still and watched silently—and in professional horror—as Bernie Segal, like a runaway truck on a steep, icy hill, careened wildly out of control.
From the start, at 1 P.M., when Segal had said bitterly and sarcastically to the jury, "Yes, ladies and gentlemen, there has been a tragedy, but we haven't talked about the real tragedy in this case yet"—the real tragedy being, in Segal's mind, not the murders of Colette and Kimberly and Kristen, but the subsequent "destruction" of Jeffrey MacDonald's life by the American legal system, Segal's tone and style and content—particularly coming after Blackburn's quiet country elegance—had been not at all what the jury had been expecting, or wanting to hear.
By 4:10, when Judge Dupree finally and mercifully tapped his pencil, Segal was swinging wild roundhouse punches at the government, as if he were the prosecuting attorney and it was the Justice Department that was on trial.
". . . Again, the government makes fun," Segal was shouting. 'Why did you come forward, Mr. Posey?' If you come forward at all, you get mocked! If you don't come forward because you think they don't need you, you get mocked! You can't win!"
Even after three hours and ten minutes, Segal had not yet gotten around to Helena Stoeckley. He was forced to squeeze her into the four minutes which followed the tapping of the pencil, leaving Wade Smith with exactly sixty seconds, rather than the prearranged sixty minutes, to convince the jury that Jeffrey MacDonald was such a decent man that he couldn't possibly have killed his wife and children, no matter what the physical evidence appeared to show.
A recess was declared by Judge Dupree, during which Smith went over to bargain with Jim Blackburn—to bargain the way two good old boys can, knowing that they will both be living and practicing in the same city long after Bernie Segal and Jeffrey MacDonald and all the out-of-town newspaper reporters have departed.
As a professional attorney—and in order to minimize the possibility that Judge Dupree might grant Smith his entire hour— Blackburn, who had forty minutes remaining to him for rebuttal, agreed to give Wade Smith ten minutes of that time.
There wasn't much Smith could do to repair the damage, but he tried. He picked up his tempo, the way he might have on his banjo, and played it hard and fast and as strong as he could.
"Let your insides talk to you for a minute about the case," Smith suggested. "What do you feell Don't you wonder why when you think about this? Why did it happen? Don't you wonder, when you are thinking about whether Jeff did it, why would he have done it? Can you think of a reason why?
"Now, the prosecution is not under any obligation to furnish a motive. The law does not place that burden on them. Nevertheless, there is natural law. That is law that we feel inside of us—every one of us. And we feel that we can say to the prosecution, 'Tell us why. Tell us why this man would have destroyed his family.'
"Think about the photographs that you saw of Jeff with the family, Jeff with the children, Colette with the children, the children playing. It makes no sense. There is no motive. It is unbelievable. It is incredible. Don't you know that Jeffrey MacDonald could not have destroyed his children? Don't you know that that raises a reasonable doubt?
"If you look at the autopsy photographs of those little children and think about what it would take to cause someone to raise a knife and destroy them—to destroy Kristen—not just destroy her but absolutely mutilate her—just stab her to death, thrust after thrust after thrust. It can't be true."
Wade Smith paused. He looked across the courtroom at Jeffrey MacDonald, who was sitting perfectly still, eyes downcast, hands folded on the table in front of him. Smith turned back to the jurors.
"He needs peace," Wade Smith said softly. "He hasn't had it in a long time. You, as a jury, are immensely powerful because you can- give him peace for the first time in years and years."
Months later, one of the jurors was to remark, "I don't know, I don't know. We wanted to believe. We really did. Maybe if Wade Smith had just talked to us a little longer ..."
But he didn't—he couldn't—and Jim Blackburn did. He talked for the final twenty minutes. "You know," he said, "I couldn't help but think during the last ten minutes, listening to Wade talk about motive, you know, and the unbelievability of it all—and I suppose, in a way, it is unbelievable that a successful person might kill his family and that a person to whom his children cried 'Daddy' might raise his hand in anger or rage, or coolness, perhaps, and kill his family—but I can't help thinking back to what I said late this morning.
"We don't contend—we don't contend that Dr. MacDonald killed his family because Kristen wet the bed. We contend, ladies and gentlemen, that the defendant killed his family because events overtook themselves too fast.
"Think yourselves for a moment in your own daily lives if you have been angry at someone but not really meaning to be and you have raised your hand—maybe to your own child—but you would never, you know, follow through. You stopped short. You didn't do anything.
"Suppose when you are tired late in the night or early in the morning and you are worn out and things just aren't going right, that you do raise your hand and before you can regret it, you have done something that is irretrievable. Everything else, ladies and gentlemen, we say, in that crime scene, flowed from that moment.
"I don't say to you that the defendant, as I said this morning, has always been a bad person. I don't say to you that for the last nine years, he has been a bad person. But I do say to you that on the early morning of the 17th of February, time stopped in the MacDonald home for a flicker of a second, something happened which caused tragic events to unfold and the killing of the children was necessary for self-survival.
"Mr. Segal, in his presentation this afternoon, attacked again—he attacked us, he attacked the CID, he attacked Stombaugh. Anybody who has ever been with the government, as I recall, was attacked. He said that our case was like a house built on sand. I suggest to you, ladies and gentlemen, the only sand in this case is that which was perhaps attempted to be thrown into your eyes to keep you from seeing the evidence.
"You know, Wade Smith talked a minute ago about what you feel inside. Well, that is all right. But what is inside when the defendant takes the stand and does not attempt to explain the unexplainable? When he is asked questions and doesn't give an answer and relies on his counsel to answer for him?
"We rely, ladies and gentlemen, and ask you to rely on the law of common sense. I will repeat it again this afternoon because it makes a whole lot of sense to me. Don't you know if he could have, he would have.
"Mr. Segal said earlier that the physical evidence doesn't say anything—it doesn't speak. It is only attorneys speaking. I say to you that the physical evidence simply cries out an explanation. The fact that twenty-one thrusts through the pajama top can make forty-eight holes that line up w
ith twenty-one holes in the vicim's chest is a singular, significant fact which, I tell you, proves to me beyond a reasonable doubt that Jeffrey MacDonald killed his wife, Colette, and it is a very short leap from that to say that he killed the other two as well.
"This is a difficult case, not because the evidence is difficult, but because of the people involved—the Kassabs, who have been injured and will be injured for the rest of their lives regardless of your verdict. Mrs. MacDonald, who has been injured and will be injured the rest of her life regardless of your verdict; their friends who will suffer the same fate, and, I guess, the defendant himself.
"You know, I am sure it is very sad for everybody who knew these people to look at those photographs. I think it is very sad for people who knew these people to look at pictures of the kids playing, of Halloween and Christmas. I wish more than you know that we could have shown you that kind of picture. I wish more than you know we weren't here. I wish more than you know that I did not think the evidence pointed to the defendant.
"I think the supreme tragedy in this whole thing really is, if our evidence is correct and the defendant did it, which we believe he did—think for a moment of the last minutes of Colette, Kimberly, and Kristen, when they realized that they were going to die and they realized for the first and the last time who it was that was going to make them die.
"You wouldn't think it. People have said that he is not that kind of guy, but, ladies and gentlemen, we think that he did.
"For that, we are sorry. For that, you have an awesome burden and responsibility. You have got to decide, beginning tomorrow, what the evidence is and what your verdict will be. We believe strongly—as strongly as we don't want to believe— that he did it, and that he is guilty of Count One of first-degree murder, of Count Two of first-degree murder, and Count Three of first-degree murder, and I ask you to so find."
Then Blackburn added a final word. He said, "Wade said that you might have the power to give the defendant peace. Well, we suggest, ladies and gentlemen, that regardless of your verdict— whether it is innocent, innocent, innocent, or guilty, guilty, guilty—you don't have the power to give this defendant peace."
And then, like a man leaving for the last time the bedside of a dying relative, Jim Blackburn slowly turned from the jurors and walked back to his chair.
The seven weeks of trial had exacted a steep price from all concerned, but there were few who could claim to have suffered more than the jurors. The extraordinary responsibility—having to decide whether to set free forever a man who had been under investigation and prosecution for almost a decade, or whether to condemn the same man to spend the remainder of his life in prison—when combined with an unceasing awareness of the particularly horrid and profoundly depressing nature of the offense had combined to make the summer of 1979, for many, the most traumatic of their lives.
And, for seven weeks, through the gore and the shock and the sadness, this knowledge—that one day they would have to decide— had been growing inexorably almost in the manner of a malignant tumor.
The former state policeman who had scored so high on the Duke professor's selection chart (and who was to be chosen by his fellows as the foreman), had for weeks been awakened at night by the sound of a baby crying. There was not, however, any baby in the house. Coming awake in the darkness he would awaken his wife alongside him to ask her if she heard it, too. She never did. Some nights the cry lingered for so long in the air, even after he had come fully awake, that he would get out of bed to investigate—to be sure that there was not a crying baby in another room. There never was.
Another juror—a twenty-seven-year-old chemist, himself the father of a two-and-a-half-year-old son—had been unable to sleep at all the night before deliberations were to begin. Shortly after 1 A.M. he had tiptoed into the bedroom of his son and had stood for a long time, in silence, staring at the boy's sleeping form. "The thought that a father could stab his child through the heart thirteen times . . ." he said later. "It was almost too difficult to grasp."
Almost. As the Raleigh Times said in an editorial the day after the verdict was announced, "One of the jury's most difficult obstacles was its instinctive rejection of the idea that a well-educated, apparently civilized man like Dr. MacDonald, committed to healing and saving lives rather than to taking them, could have wrought this horror."
And, as another of the jurors was to say: "Everybody was sorry for Dr. MacDonald. We didn't want to convict him."
There was a party that night, just as there had been a party the night before the first day of trial. Wade Smith came with a guitar. For some time it was feared that Bernie Segal would not come at all, so despondent was he said to be in the wake of his closing argument.
Segal eventually did arrive, though, and there were beer and wine in moderation, as there had been the first night, and—as on the first night—Wade Smith eventually began to play music and to sing.
The room was filled with a spirit of camaraderie, touched with the first traces of nostalgia. Tension regarding the fact that on the morrow the jury would begin to deliberate the fate of Jeffrey MacDonald, was, for at least a few hours, repressed. The mood seemed almost akin to the last night of summer camp: soon, whatever the outcome, all these people who had worked so hard and who had shared so much with such intensity would be scattered to various parts of the country, and the chapter of their lives titled "MacDonald Trial" would be closed, though for none of them soon forgotten.
Wade Smith, as was his custom, sang traditional favorites: familiar verses, with which it was easy to sing along. For the most part he kept the tempo upbeat. It was toward the end of the evening that he played and sang a more contemporary song: Bob Dylan's "I Shall Be Released." To many in the room the words to this were less familiar, and so there were fewer voices joined to Smith's, though no lack of attention to the lyric, by the time he reached the final verse:
Standing next to me in this lonely crowd,
Is a man who swears he's not to blame.
All day long I hear him shout so loud,
Crying out that he was framed. . . .
Shortly after 4 P.M. the next day, in the suite of defense offices located just down the hallway from the courtroom, Jeffrey MacDonald's secretary, who had flown in from California, was on the phone to New York making reservations for MacDonald and Sheree Sizelove to spend the following night at the Warwick Hotel in New York City. She had already made a dinner reservation at a West Side Italian restaurant named La Scala. She had also just sent off a check to Evergreen, Colorado, enrolling MacDonald in a wilderness photography workshop that would begin the following week.
In the background, there was talk of how to handle the press conference after the acquittal—who should speak first, Segal or MacDonald—and of whether to leave Raleigh by chartered plane immediately or to wait for a later commercial flight.
There was also some discussion about whether MacDonald should wear into the courtroom the bulletproof vest which a Long Beach policeman had flown east with—in case Freddy Kassab, in his moment of supreme and final frustration, might try to administer with a gun the "justice" he for so long had threatened—and talk also about whether the Queen Mary might be rented for the victory celebration which would be held upon MacDonald's triumphant return to California.
Only Wade Smith, who as the trial had progressed had drifted further and further from the core of the MacDonald group, remained detached and isolated. For long periods, he sat by himself at the defense table in the suddenly vacant courtroom, his hands clasped before him, staring alternately at the ceiling, the walls, and the floor. It was as if he were a lone worshiper come to an empty church, seeking a few mid-afternoon moments of solace and tranquillity. Indeed, he would say later that he had wanted to pass those final hours in silent contemplation, removed from the nervous, noisy, obtrusive optimism and forced gaiety of the defense suite. Wade Smith had tried many cases and he knew all too well when a big one was about to be lost.
MacDonald was
just beginning to explain to a pert, young female assistant the intricacies of Las Vegas craps tables when a court clerk knocked on the door to say that—after only six and a half hours of deliberation—a verdict had been reached.
It took only a few minutes for the entire cast to reassemble. Then Judge Dupree nodded at a bailiff, who opened the door that led to the room in which the jury's deliberation had been conducted.
The first juror to walk through the door was the ex-Green Beret. His head was down and he was crying. He was followed, almost immediately, by the woman whose son was a member of Kappa Alpha. Her head was down and she was crying, too.
Then there was a pause, which seemed long—though maybe it was only ten or fifteen seconds—before the third juror came through the door. But it didn't matter. It would not have mattered if the pause had lasted an hour. Not only Jeffrey MacDonald and Bernie Segal and Wade Smith and MacDonald's mother, and his secretary and the friends who had flown in from California, but Jim Blackburn and Brian Murtagh and, in the first row of the right side of the aisle, Freddy and Mildred Kassab, knew what was coming. An ex-Green Beret who has just voted to acquit another ex-Green Beret of three murder charges does not walk into the courtroom in tears.
MacDonald was found guilty of second-degree murder in the deaths of Colette and Kimberly, and guilty of murder in the first degree—because the jury believed it to have been a calculated act, designed to support his cover story—in the death of his younger daughter, Kristen.
MacDonald's mother rose from her seat and hurried to a small private alcove just outside. From there, as Judge Dupree prepared to pass sentence upon her son, her keening wail of torment could be heard, above the continuing weeping and sobbing of some of the jurors. Not the ex-state policeman though: chosen as foreman, he had announced the verdict dry-eyed and in a flat, unemotional voice.
Fatal Vision Page 68
