Legal History

The U.S. Custom House at Bowling Green

By Steven Flanders

The Custom House at the foot of Manhattan is one of New York’s most distinguished works of architecture. But from its ori­gins in 1899 all the way to the present, nothing in its history has been simple. Designed by Cass Gilbert, an unknown provincial architect at the time, the Custom House essentially established the reputation of the architect who created our Thurgood Marshall Courthouse as well as the U. S. Supreme Court building, and was described by The New York Times when he got the Foley Square con­tract as the most important archi­tect working in America. But the magnificent Custom House fell upon evil days when the World Trade Center went up 70 years later, and faced multiple uncer­tainties before the curious com­promise was reached that led to its present uses: It is shared by the most unlikely possible pairing, of the U.S. Bankruptcy Court for the Southern District of New York and the National Museum of the American Indian.

The Tarsney Act

The Custom House was the first federal building created un­der the Tarsney Act, an 1893 “reform” that had been urged upon Congress for decades by the American Institute of Archi­tects, among others. Essentially all federal construction up to that time had been designed by the Supervising Architect of the Treasury, so the role (and oppor­tunity for government business) for private architects was mini­mal. Though today the work of that office is regarded fondly (I urge well-traveled litigators to re­call the magnificent 19th century federal courthouses in Milwau­kee and Indianapolis, among oth­ers, as examples), the argument of the day was that the work of those government hacks should be enriched through competitions that brought in top firms.

The Custom House at the foot of Man­hattan is one of New York’s most distin­guished works of architecture. But from its origins in 1899 all the way to the present, noth­ing in its history has been simple.

The prospect of a much-ex­panded Manhattan Custom House was the ultimate prize. Though Democratic President Grover Cleveland had permitted his Treasury Secretary to ignore the Tarsney Act, President McKinley implemented it, in New York and elsewhere. The Customs Service of that day was the prime source of government revenue, exceed­ing 50 percent, and most of that came through the Manhattan of­fice. The “short” list of competi­tors included 15 from New York, two each from Boston and Chica­go, and a lone outlier, Cass Gilbert from St. Paul, Minnesota. Know­ing that the Customs Service had an all-but-unlimited budget for this landmark project – in an amusing bureaucratic quirk of the day, the Customs Service expens­es, including real estate, came off the top; revenues went to the Trea­sury after expenses were deduct­ed – Gilbert created a monument with a monumental and expensive sculpture and mural program.

Gilbert’s selection created a “Manhattan firestorm.” Senator Platt, probably the most power­ful man on Capitol Hill of the day, charged off to the White House to object to the choice of this provin­cial over such distinguished New York competitors as co-finalist Carrère and Hastings. But Gil­bert had a bit of help. His for­mer partner James Knox Taylor was McKinley’s Supervising Ar­chitect, in charge now of imple­menting the Tarsney Act. Though Taylor did not vote on the final selection, he did advise Gilbert at several points along the way. And another unknown Midwest­ern “provincial,” Thomas Kim­ball of Omaha, known to Gilbert but to none of the others among the 20 finalists, was a member of the three-man committee. A huge lobbying effort began on all sides, Gilbert spending some $5,000 – a considerable sum in those days – on legal fees. In the end, President McKinley and Treasury Secretary Lyman Gage were unwilling to upend this first implementation of the Tarsney Act, and we all are the beneficiaries.

A Great Building

The late Paul Spencer Byard, architect and preservationist, de­scribed the Custom House (after noting that some of Gilbert’s com­petitors for this job perhaps were better than he was): “The Custom House is a great building, rich, compact, with an almost anatomi­cal fitness of its plan to its purpose

– a representation in the nation’s greatest seaport, of the fecundity of its wealth, the showering coin of customs collections that entered its front door and begat the capac­ity of the federal government to push and steer the growth of the nation.” The mural program and especially the Daniel Chester French sculptures of the continents that guard the entrance are the ul­timate monument to American imperialism, created just as victo­ry was achieved in our “splendid little war” against Spain. Profes­sor Geoffrey Blodgett said, “The War turned the Caribbean into an American lake and broke open the Asian rim of the Pacific to Ameri­can commerce. American power now was not only global but self-conscious and assertive. Of all the memorials to the mood of that war and its momentous consequences, the Custom House can be regard­ed as the most compelling.”

The Custom House served its intended purpose for nearly 70 years. Some complained of the in­cessant clattering of the typewrit­ers in the huge Rotunda, where duties were actually calculated and receipts issued, but perhaps this was the price of prosperity. Gilbert had left the mural open­ings in that space blank; they were filled under the WPA by the more modern Reginald Marsh murals we see today. They portray the busy seaport, and such events as an arriving Marlene Dietrich hold­ing court before the adoring press. But for whatever reason, perhaps in part because Beaux-Arts Classi­cism became thoroughly fusty and out of style, the Custom Service removed to the World Trade Cen­ter in the 1970s, leaving the build­ing vacant, unused, and mostly unloved. It came close to demo­lition a couple of times before Brendan Gill and others mounted a determined effort to preserve it. Congress appropriated funds to stabilize and renew the build­ing, and the judiciary in the early 1980s developed plans to move the bankruptcy court from grossly inadequate quarters on the second floor at Foley Square to Bowling Green.

That plan nearly came en­tirely unglued as a result of wholly unexpected and improb­able events. David Rockefeller, a sort of neighbor as head of the Chase Manhattan Bank, had long regretted the seeming abandon­ment of the Custom House, a der­elict relic at one of New York’s most prominent locations. At a White House dinner he urged President Ronald Reagan to offer this architectural orphan – as far as he knew – to the impecunious Museum of the Heye Foundation, whose magnificent collection of Indian artifacts languished in what had seemed an inaccessible location uptown. Observing that when the Heye Foundation had mounted a temporary exhibit at the Custom House, it drew more visitors in a few weeks’ time than its 155th Street museum did in a year, Mr. Rockefeller persuaded President Reagan that a gift to the Foundation was the answer.

The Senators Act

It is not easy to correct or modify an action of the President of the United States. Thankfully, Senators Daniel Patrick Moyni­han and Alfonse D’Amato, work­ing together, were up to the task. Following a hearing over which they presided jointly, the present compromise was worked out. The bankruptcy court occupies the top floors, and its spaces are accessed via the ground floor doors that lead to the elevators. The grand entrance that leads to the rotunda and the intended public spaces, truly a natural for a museum, are the New York outpost of the Na­tional Museum of the American Indian, whose headquarters now occupy a major new building on the Mall in Washington. The courts and the museum have been comfortable neighbors now for more than 20 years.

Legal History

Reflections on Water­gate after 40 Years

By Pete Eikenberry

August will mark the 40th anniversary of the resignation of President Richard Nixon. For­mer Federal Bar Council Presi­dent Bernie Nussbaum told me recently that he will be hosting a reunion in August of the House Judiciary Watergate Committee legal staff headed by John Doar, where Bernie was a chief deputy and Hillary Clinton a young law school graduate recruit. For those of us with dim memories and for others who were not yet born:

On June 17, 1972, a scandal impacting the Nixon presidency began to unfold with the arrest of five men whom the Washington, D.C., police found burglarizing the Democratic National Com­mittee office in the Watergate apartment complex.

The scandal arose out of a background of “dirty tricks” em­anating out of the Nixon White House in the early 1970s. Rich­ard Nixon was old school in his partisanship – especially around elections, where winning at any cost was the first priority and punishing enemies was a close second. (Remarkably like how I experienced Brooklyn politics during the same time period.) In 1970, Tom Hudson, a young lawyer and junior member of the White House staff authored the “Hudson Plan.” The plan’s intent was to harness all of the various government intelligence agen­cies under one roof to carry out surveillance tactics such as open­ing mail, infiltration of activist groups, and burglaries to devel­op domestic intelligence, which would further Nixon’s political goals. The plan was “Nixon’s doing” according to CIA Direc­tor Richard Helms. Hudson had gained notice from Nixon when Hudson used the IRS to audit people on Nixon’s “enemies list.” The White House was deeply concerned with the activities of the Black Panthers, the Students for a Democratic Society, and other left leaning activist groups, a view that grew out of a 1950s Cold War mentality. The White House occupants and others be­lieved that the activist groups were inspired by foreign radical groups.

The plan, though instituted with Hudson as its director, died a quick death at the hands of FBI Director J. Edgar Hoover. He stated that he feared that expo­sure of any of the plan’s activities by the liberal press would place the White House on the defen­sive. Hoover, of course, already carried out the same type of ac­tivities and obviously wished to control the use of such illicit tactics without supervision by Hudson. However, the tactics were implemented by successor groups. One, the “Special Inves­tigative Unit,” became known as the “Plumbers,” since the ini­tial purpose was to plug leaks. The Committee to Re-Elect the President (“CREEP”) was an­other entity that engaged in such tactics. During this era of dirty tricks, several officials each drew up their own enemies lists. IRS audits were instigated or planned, for instance, for Washington law­yer Edward Bennett Williams, Democratic National Commit­tee Chair Larry O’Brien, and the Ford Foundation. The Plumb­ers compiled “dirt” on over 400 groups and 1,000 individuals.

After the five burglars were arrested on June 17, 1972, the police immediately brought in the FBI. The police had found commercial telephone bugging equipment in addition to lock picking instruments and Mace in the possession of the burglars and were concerned about possible violations of federal laws against intercepting telephone conver­sations. The FBI investigation revealed that one burglar, James McCord, was Chief of Security for CREEP and the four others were former CIA employees with a lot of cash in their hotel rooms. (Later investigation revealed that the burglary was financed with money from CREEP.) The FBI early learned that the break-in was being monitored from anoth­er hotel room by Howard Hunt and G. Gordon Liddy. Liddy was counsel to CREEP, which was headed by Attorney General John Mitchell. Hunt was a former long term CIA employee and a White House employee under presiden­tial aide Charles Colson.

Dean and Haldeman

Presidential Counsel John Dean learned within days of the burglars’ arrests that the Presi­dent’s chief of staff, H. R. Halde­man, had received logs of wire­taps of the Democratic National Committee. The presidency was, perhaps, in jeopardy but the odds were that the Watergate arrests would not ordinarily have re­sulted in any threat to the White House. Although there were in­criminating tapes, since Nixon recorded almost everything that occurred in the Oval Office, the existence of the tapes was known but to a few. A plethora of lawyers participated in or were knowledgeable about much of the relevant misconduct that had occurred prior to August 1973, yet none felt any ethical duty to come forward.

However, the presence of the FBI did bring concern to the President and senior White House staff members. Among Nixon’s almost immediate directives was to ask the head of the CIA to slow down the FBI investigation on grounds of purported national security concerns. At this stage in the course of events, the Wa­tergate arrests had just occurred but the “cover up” had already commenced. Thereafter, a series of highly unusual legal proceed­ings occurred during which many lawyers acted in questionable ways. The next part of this arti­cle will carry the Watergate story forward with the cover up and related legal proceedings as well as the congressional investigative activities.

Legal History

Jeffrey MacDonald and the Unavailable Witness

By C. Evan Stewart

Jeffrey R. MacDonald, a Princeton-educated, Green Beret doctor, was convicted in 1979 of killing his pregnant wife and two young daughters at Fort Bragg, North Carolina, on February 16, 1970. In the family’s Army apart­ment, MacDonald’s wife had been repeatedly clubbed with a blunt object (both her arms were bro­ken) and stabbed 37 times; his five year old daughter also had been clubbed (in the head) and stabbed in the neck between eight and 10 times; his two year old daughter had been stabbed 48 times. Mac­Donald was found lying next to his wife with some minor cuts and bruises on his face and chest, along with a stab wound in his chest (which a treating doctor de­scribed as a “clean, small, sharp” incision that caused one of his lungs to partially collapse); he was taken to a hospital, was up in bed the next day eating a tasty meal, and was released a week later.

After the jury’s verdict, Mac­Donald was sentenced to three consecutive life sentences, which means that he is scheduled to be released on April 5, 2071 (when he would be 128 years old). Al­though the evidence of MacDon­ald’s guilt is massive and over­whelming, he has consistently argued that he is innocent and has continuously sought to have his conviction overturned (even to­day).

New York, New York

The main reason he was brought to justice was an event that took place in New York City. On December 15, 1970, after the U.S. Army had botched an Ar­ticle 32 hearing concerning the murders, MacDonald appeared on The Dick Cavett Show. Rather than focus on the tragedy that had befallen his family, MacDonald instead cracked jokes at the ex­pense of the Army, claimed he had sustained 23 wounds (“Some of which were potentially fatal. I could have died very easily. I was in an intensive care unit for sev­eral days, and had surgery – you know, chest tubes in my chest.”), and complained about how he had been treated. (Cavett: “His af­fect was wrong, totally wrong…, very like Bob Hope.”)

Watching Cavett’s show was MacDonald’s father-in-law, Freddie Kassab, who theretofore had been a fierce advocate of MacDonald’s innocence. No lon­ger. Kassab soon began a tireless review of the evidence, a dogged process that began to unsettle MacDonald. The month before, MacDonald had told Kassab he had tracked down one of the “real” killers and had avenged his family. When that lie was sub­sequently exposed, Kassab only became more determined (“That was the beginning of the end for him.”). Kassab eventually got the Justice Department interested in prosecuting the case and, ul­timately, a jury convicted Mac­Donald of his heinous crimes.

An Esoteric Rule of Evidence

For over four decades, Mac­Donald has utilized virtually ev­ery legal means possible to upset, reverse, and challenge his con­viction – one of the most famous precedents created was the U.S. Supreme Court’s determination that MacDonald’s Sixth Amend­ment right to a speedy trial had not been violated by the delay in the Justice Department’s bringing on of the indictment. See 456 U.S. 1 (1982). This article will focus on a fascinating decision by the Fourth Circuit, also in 1982 (see 688 F.2d 224), in which, inter alia, that cir­cuit court looked at Federal Rule of Evidence 804(b)(3).

For over four decades, MacDonald has utilized virtually every legal means possible to upset, reverse, and chal­lenge his conviction.

Rule 804(b)(3) concerns hearsay exceptions when a de­clarant is unavailable. Under the provision at that time, a “state­ment against interest” may be ad­mitted vis-à-vis the unavailable person if:

[the statement] at the time of its making [was] so far con­trary to the declarant’s pecu­niary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his posi­tion would not have made the statement unless he believed it to be true. A statement tending to expose the declar­ant to criminal liability and offered to exculpate the ac­cused is not admissible unless corroborating circumstances clearly indicate the trustwor­thiness of the statement.

The Trial

In 1979, after the first of Mac­Donald’s unsuccessful appeals on speedy trial grounds had been rejected by the U.S. Supreme Court, his criminal trial began in federal court in the Eastern Dis­trict of North Carolina. Presid­ing was Franklin T. Dupree, Jr., a Nixon appointee. Jury selection took three days and MacDonald’s lawyer was very pleased with the group empaneled, one of whom was (like MacDonald) a former Green Beret. (MacDonald: “That tie is so strong you’d walk across water for one another. There is no stronger bond. So at the very worst, I know I’ve got at least a hung jury.”)

The first few weeks of the trial were gruesome (with pictures and autopsy descriptions setting forth the slaughter), but they were also complex, confusing, and lacking in a thematic narrative. Dupree kept a tight handle on the parties’ evidentiary offerings, ruling that determinations from the Army’s Article 32 hearing should not be admitted and that allowing con­flicting psychiatric experts to tes­tify “would just tend to confuse the issues.”

Although MacDonald re­mained confident he would be vindicated, the forensic evi­dence was mounting up. A ser­endipitous anomaly allowed the prosecution to demonstrate ex­actly what happened at the crime scene: Unknown to MacDonald, each member of his family had a different blood type; thus, the location of blood in the rooms of the Fort Bragg apartment pro­vided a chronological roadmap of the sequence of events on that horrible night. Then came the testimony of a former FBI laboratory expert, who (i) dem­onstrated in front of the jury how cuts in the family members’ clothes happened, (ii) matched them up with blood types, and, most gruesomely, (iii) showed how MacDonald’s wife had been stabbed in the chest 21 times with an ice-pick with his pajama top lying on her. Not only was all of this testimony and evidence directly at odds with MacDonald’s version(s) of the events at issue, one of the de­fense’s experts, upon reviewing this presentation, told MacDon­ald’s lawyer: “This is very con­vincing evidence…, this is like a fingerprint. Holy Christmas!”

Then, the jury heard a tape recording of MacDonald from

One of the most famous precedents created was the U.S. Supreme Court’s determination that MacDonald’s Sixth Amendment right to a speedy trial had not been violated by the delay in the Jus­tice Department’s bringing on of the indictment.

an April 6, 1970 interview. That also had a big impact. For one juror: “Until I heard that, 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.” For another ju­ror: “There was a cockiness. Arrogance when there should not have been arrogance…. 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 he did it.”

“Kill the Pigs”/“Acid is Groovy”

From the moment his family was murdered in 1970, MacDon­ald has consistently maintained that he and his family were vic­tims of a drug-induced attack by local hippies. Among the hip­pies, according to MacDonald, was a blonde woman wearing a floppy hat and boots. During the same period his family was being slaughtered, MacDonald said he was struggling with the hippies, who supposedly were chanting “Acid is Groovy” and “Kill the Pigs” (on the headboard of his bed was written, in his wife’s blood, “pig”). (In the same room where the alleged struggle with MacDonald took place was a re­cent Esquire magazine, which had a cover article on the Manson family’s brutal murder of actress Sharon Tate and others in Bever­ly Hills (“Evil lurks in California.  Even Lee Marvin is afraid.”).

Could one or more of the hip­pies be found and/or provide the jury with a basis for reasonable doubt?

Although she was not a per­fect match to MacDonald’s de­scription, a local drug-addict named Helena Stoeckley had been located in 1970; then, and for years thereafter, Stoeck­ley (depending on her sobriety) had given multiple versions of whether she had some involve­ment, a lot of involvement, or no involvement in the MacDonald family murders. Dupree issued a bench warrant for Stoeckley and, on August 16, 1979, she met with MacDonald’s lawyer in advance of her testimony; for hours he did his best to convince her to con­fess. In response to some dubious representations (“Nothing will happen to you. That I can prom­ise you. The statute of limitations has expired.”), Stoeckley replied, “I can’t help you. I wasn’t in that house. I didn’t have anything to do with any of this…. I can’t tell you things I don’t remember.”

On the witness stand, Stoeck­ley detailed her drug use – in 1970 alone she admitted to in­jecting heroin and liquid opium intravenously six to seven times a day; smoking marijuana and hashish on a daily basis; taking LSD “almost daily”; taking mes­caline “about twice a week”; us­ing barbiturates and angel dust on a regular basis; over the years Stoeckley’s drug use had led to (among other things) a stroke, her gallbladder being removed, and three liver biopsies. On February 16, 1970, the night in question, she specifically recalled taking a tab of mescaline (given to her by a Fort Bragg soldier named Greg Mitchell), but remembered noth­ing else beyond returning to her apartment at about 4:30 a.m. in a blue car with “two or three” sol­diers from Fort Bragg.

On cross-examination, the prosecution elicited from Stoeck­ley that, while she had a blonde wig, she wore it “infrequently” and had not been wearing it on February 16th, because Greg did not like her to wear it. She also testified that she had never been in the Fort Bragg apartment, had never seen MacDonald before testifying, and did not participate in the murders of any of the Mac­Donald family members.

That testimony (after all the build up by the defense) not only did not provide a basis for reasonable doubt, it was a fur­ther weight around the defense’s floundering case.

In response, MacDonald’s lawyer proffered six witnesses who had had conversations with Stoeckley over the years, in which she had said various things. The premise of this proffered hear­say was that Stoeckley had been “unavailable” (unavailability, for purpose of Rule 804(b)(3), includes a witness testifying she has no memory), and thus the jury should be allowed to hear from the six as to what Stoeckley

• Stoeckley told an Army in­vestigator in 1971 that she was present during the mur­ders, but did not think she had taken part. She later recanted her statements.
• Stoeckley told a Nashville police officer that she had been at the scene of the Mac­Donald murders and knew who had been involved.
• Stoeckley told a police offi­cer, the day after the murders, that “[i]n my mind, it seems I saw this thing happen,” add­ing she had been “heavy on mescaline.”
• A Nashville neighbor of Stoeckley’s had been told that she could not return to Fayetteville because she had been involved in murders, in which the victims were a woman and two small chil­dren.
• Another Nashville neighbor of Stoeckley’s had been told that “[t]hey killed her and the two children…. They killed the two children and her.”
• A few days after the murders, a Stoeckley neighbor in Fay­etteville had been told that, although Stoeckley did not kill anyone herself, she did hold a light while the murders were taking place. (MacDon­ald has maintained the female hippie was holding a candle.)

The prosecution opposed any clearly admissions of guilt,” and that Rule 804(b)(3) is premised on the trustworthiness of the proffered hearsay – and given Stoeckley’s drug use and mental and physical health (and constant interrogation by the authorities and others on this highly publi­cized matter), “these statements are not trustworthy, and they are certainly being offered to ex­culpate the accused.” (Prosecu­tors said, “What we are talking about here is somebody who is hysterical, perhaps hallucinat­ing. Under these conditions, she makes various statements. Now these statements are never of an unequivocal nature. It can all be drawn back to her lack of an alibi and the fact that she is constantly being interviewed, picked up, hassled by police, and having to account for her whereabouts.”)

After both sides had exhaus­tively argued their positions, it was 4:00 on Friday afternoon. Dupree adjourned the proceed­ings and said he would rule first thing Monday.

On Sunday, MacDonald’s lawyer got a call that someone (Stoeckley’s fiancé) had tried to drown her in the pool at the mo­tel at which she was staying. A young female lawyer working for him was sent to the motel; there she found Stoeckley with a black eye (from her fiancé, who subse­quently also bloodied her nose). Dispatching the fiancé, the law­yer stayed with Stoeckley, and had told them. Here is what the of the six being allowed to tes-after a while they started to chat defense said the six would have tify, arguing that the proffered and to bond. Soon Stoeckley said: hearsay statements were “not started to remember things: “I still think I could have been there that night…. It’s a memory. I remember standing at the couch, holding a candle, only, you know, it wasn’t dripping wax. It was dripping blood.”

First thing Monday morning, Judge Dupree advised counsel of his ruling:

I will rule that these proposed statements do not comply with the trustworthy requi­sites of 804(b)(3). In fact, far from being clearly cor­roborated and trustworthy, they are about as unclearly trustworthy – or, clearly un­trustworthy, let me say – as any statements that I have ever seen or heard…. This testimony… has no trustwor­thiness at all. Here you have a girl who, when she made the statements, was, in most instances heavily drugged, if not hallucinating…. I think that this evidence will tend to confuse the issues, mislead the jury, cause undue delay, and be a waste of time…. I did not reach [my decision] lightly because I am risking a terrible lot of judge time and juror time down the road if I make an error and it has to be retried. But I am confident of my position on this one.

MacDonald’s lawyer then in­formed the judge what had trans­pired the prior day and asked that at least his legal colleague be allowed to testify as to what Stoeckley told her. The prosecu­tor objected, stressing again the trustworthiness point, further ar­guing that the proffered testimo­ny was also hardly reasonable: “Candles, of course, don’t drip blood.”

Judge Dupree, calling Stoeck­ley “one of the most tragic figures that I have ever had appear in court,” ruled that she simply had no “credibility at all,” regardless of the context or recipient of her “extremely paranoid” comments. He then added that he himself had been contacted twice by Stoeck­ley over the weekend, expressing “mortal dread of physical harm” by MacDonald’s lawyer. The judge then ended the colloquy: “I will exclude the evidence. Let the jury come in.”

MacDonald for His Own Defense

It then was left to MacDonald to testify and to convince the jury that he did not commit the mur­ders (and that he could not have done them). In preparing him, his lawyer cautioned MacDon­ald about the importance of how he presented himself before the jury (“at the grand jury you came across abrupt, cocky, chauvinistic, sarcastic, and callous about wom­en…. You can’t afford to come across as arrogant.” MacDonald had ended his grand jury testimo­ny with: “You can shove all your fucking evidence right up your ass!”). He also gave MacDonald another piece of very sound ad­vice: “[I] want you to come out of the cross-exam sounding like the same person you were on direct. It’s the consistency that will make you believable.”

MacDonald, on direct, fol­lowed his lawyer’s lead; he told a sympathetic tale of his family life and forcefully denied killing his wife and daughters. At the con­clusion, MacDonald was weep­ing, as were three members of the jury, as well as many others in the courtroom. Judge Dupree re­cessed the trial until the next day, when cross-examination would begin.

Unfortunately for MacDon­ald, he was a different person on cross (caustic, bitter, acerbic, prickly, etc.). Not unlike his ex­perience before the grand jury, MacDonald was taken through all of the physical evidence link­ing him to the murders and asked if he could explain away any of it; and to each of those ques­tions, MacDonald – who had had years to consider them – was unable to offer any alternative explanation(s). The concluding question was: “Dr. MacDonald, should the jury find from the evi­dence that has come to be known as the FBI reconstruction of the blue pajama top – suppose the jury with respect to that should find that the 48 puncture holes in your blue pajama top [which MacDonald contended had re­sulted from his struggles with the hippies] correspond or match up with the 21 puncture holes in [his wife’s] chest. Do you have any explanation for that?” MacDon­ald answered: “No.”

After closing arguments and the judge’s charge, the jury went out to deliberate. MacDonald was making plans to spend a victory celebration with his girlfriend at the Warwick Hotel in New York when word came back that a ver­dict had been reached after six and one half hours. Everyone quickly reassembled in the court­room. As the jury walked in, many were crying, including the former Green Beret.

MacDonald was convicted of second-degree murder in the killings of his wife and eldest daughter, and convicted of first-degree murder in the death of his two year old daughter (the jury believed this last death had been pre-meditated, to support his hastily conceived cover-up story of a hippie assault).

Appeals, Petitions, Appeals, Petitions…

In 1980, the Fourth Circuit Court of Appeals reversed Mac­Donald’s conviction (by a two to one split) on the ground that his speedy trial rights had been violated. Judge Francis Mur­naghan, writing for himself and Judge James Sprone, found that the scales of justice tipped “deci­sively in favor of finding a vio­lation,” in light of the nine year delay (one key to his analysis was that Stoeckley (“a light bulb not screwed tight, blinking on and off”) might not have had a failure of memory if the case had been prosecuted earlier). Judge Albert Bryan, pointing out that Stoeck­ley’s poor memory related to her prolific drug use in 1970, strongly dissented: “[MacDonald’s] guilt and sanity were established to the satisfaction of the trial jury be­yond a reasonable doubt. Never­theless, this absolves him forever of this hideous offense, shocking­ly laying his release exclusively on the failure of the government to prosecute within a shorter time than it did.”

Two years later, as indicated above, the Supreme Court (by a six to three decision) agreed with Judge Bryan.

With that reversal, the same Fourth Circuit panel then took up MacDonald’s challenges to what he argued were Judge Dupree’s improper trial rulings, includ­ing his Rule 804(b)(3) decision. Writing for a unanimous court, Judge Bryan held that the judge had not abused his discretion in that ruling. Furthermore, Mac­Donald, in the appellate court’s judgment, had not demonstrated that the hearsay declarations of a “pathetic,” “inherently unreli­able” drug addict were “trustwor­thy.” And with respect to Mac­Donald’s over-arching argument that the government had not met its burden beyond a reasonable doubt, the court wrote: “Our can­vas of the record … gives ample warrant for the verdict.”

Judge Murnaghan wrote a concurring opinion. He felt “obliged to concur” with the re­straint an appellate court must observe in reviewing trial judg­es’ evidentiary rulings. He also noted that “[i]t is evident that a basis may be erected for find­ing the hearsay statements of … Stoeckley untrustworthy.” But he believed, given the “virtually unique aspects” of the case, that if he had been the trial judge he would have let the statements in: “If such evidence was not persua­sive, which is what the govern­ment essentially contends in say­ing that it was untrustworthy, the jury, with very great probability, would not have been misled by it.”

Judge Murnaghan then con­cluded: “As Judge Bryan has pointed out, the evidence was sufficient to sustain the findings of guilt beyond a reasonable doubt. Still, … I believe Mac­Donald would have had a fairer trial if the Stoeckley related testi­mony had been admitted. In the end, however, I am not prepared to find an abuse of discretion by the district court, and so concur.” (Emphasis added.)

Was Judge Murnaghan right? Well, in the words of a juror: “A confession by a pathetic acid head such as Helena Stoeckley does not deter for an instant from the mountains of evidence against MacDonald at the trial.”

Postscripts

• The starting point for anyone wanting to know more about this case is Joe McGinniss’s Fatal Vision (Signet 1985), which later became a made­for-TV film, starring Karl Malden, Eva Marie Saint, Andy Griffith, and Gary Cole (in the role of his lifetime) as MacDonald.
• Like Alger Hiss (and O.J. Simpson), MacDonald has never acknowledged his guilt and has attracted people to help him in his quest to find the “real” killers. His second wife (who married the impris­oned MacDonald in 2002) has been a tireless advocate. Most recently, filmmaker Er­rol Morris (“The Fog of War,” “The Unknown Known”) published a book in defense of MacDonald: A Wilderness of Error: The Trial of Jeffrey MacDonald (Penguin-Press 2012).
• Greg Mitchell and each of the other people mentioned by Stoeckley at various times as possibly having something to do with the events of February 16, 1970 all were investigated thoroughly by various governmental authorities and found to have had no involvement whatsoever. Subsequent DNA tests have shown no traces of Stoeckley or any other of the alleged hippies within theMacDonald apartment.
• MacDonald took a lie detector test in April 1970. The person who administered the test – a well known expert in that field – testified in subsequent civil litigation: “The results [of MacDonald’s examination] were very unambiguous.  They were not borderline at all. In my opinion he was being deceptive … concerning the questions relating to the crime [and so] I told him I could not be of help to him in his defense because he had failed the polygraph test….”
•  Although MacDonald was clearly less than a perfect husband (he was a serial adulterer), the prosecution was hard pressed to present a theory as to what motivated MacDonald to kill his entire family; instead, it focused on the overwhelming, irrefutable physical evidence. (“If we can prove that he did it, then we don’t have to prove that he’s the kind of guy who could do it.”) After the conviction, McGuinness, to whom MacDonald had given complete access to all of his papers, found notes MacDonald had written in April 1970, notes that MacDonald had told his lawyer at the time consti­tuted his best recollection of what happened (but had not been seen by anyone in nine years). It turns out that Mac­Donald had been working out with the base boxing team, and was told by the coach to lose weight. To do that, Mac­Donald began taking amphet­amines and, in the three to four weeks before February 16, 1970, he had lost between 12 to 15 pounds. Amphet­amines were not considered a “dangerous” drug in 1970, and thus the Army hospital’s testing of MacDonald did not disclose the amphetamines in his blood (a fact that Mac­Donald knew). However, the levels of dosage to effect such a rapid weight loss could cause (according to a leading medical text): “confusion, assaultiveness, hallucina­tions, panic states, … and the most severe …psychosis”; as well as “cardiovascular reac­tions [including] chilliness, pallor or … headache” (all symptoms that MacDonald exhibited in the early hours of February 17, 1970).
• It would appear that before MacDonald hatched his hip­pie attack scenario (and self-inflicted his “clean, small, sharp” incision), he had an­other idea. In his bedroom (near his closet), there was a suitcase, around which blood was splattered everywhere, but upon which there was not a single drop. It looks like packing his bag and making a run for it lost out to the story he has stuck with for 44 years and will continue to stick with (at least) until 2071.