NC - MacDonald family murders at Fort Bragg, 1970 - Jeffrey MacDonald innocent?

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So, once again waiting until the very last minute (actually, technically an hour past the very last minute), MacDonald finally filed an informal opening brief yesterday in the 4th Circuit, re: his IPA appeal for additional DNA testing. Interestingly, a cover note written by Kathryn MacDonald states that she has been "trying to fax the attached since 4:55 p.m.," which if true, was five minutes before the appeal was due to be dismissed. Even more interestingly, the fax header shows a time-stamp of 6:01 p.m., so, per the Court's order, this brief was filed an hour too late. I also noted that MacDonald references the date of Sept. 14 in his brief, but oddly, puts the date of August 8 in his title.

In my opinion, this anemic two-page brief contains no real "meat" at all. MacDonald takes issue with how blood was described to the jury, and with Judge Fox's saying several years ago that he "knew nothing about DNA" and hadn't read the 1979 trial transcript. The curx of MacDonald's argument seems to be that the request for additional DNA testing is not untimely, and that "By refusing to test the blood evidence in this case, the government is not embracing the spirit of the transparency and full disclosure and has been allowed to do so by the District Court."

http://www.crimearchives.net/1979_ma...s/uploads.html


BUNNY: Thanks for the update. Despite her own legal issues, Kathryn is brazen enough to distort and fabricate the government's position on DNA testing. In this so-called legal document, Kathryn claims that the government "refused" to DNA test blood evidence in this case, yet she seems to have lost her copy of the 1999 DNA hearing transcript. During that hearing, Brian Murtagh pointed out that since most of the blood exemplars in this case were used up at autopsy, little would be gleaned from DNA testing.

The government didn't "refuse" to test blood exemplars nor did Barry Scheck insist that the limited number of blood exemplars be DNA tested. In their original IPA brief, the defense asked for 84 exhibits to be tested for Touch DNA. A number of those exhibits were blood exhibits and contained exhibits that had been consumed in prior tests. Some of the exhibits even involved blood that was spattered on ceilings and walls. MacDonald NEVER claimed that he drew blood on any of the mythical intruders nor cause an injury that would result in blood spatter on ceilings and walls.

In addition, the defense is asking for Touch DNA testing on the weapons in this case, but ALL of the weapons have been extensively handled in the past 45 years. Kathryn also ignored the FACT that in prior IPA briefs, her husband's legal team flat-out admitted that the original IPA request was untimely. This is just another ruse led by a recycled lawyer, a misguided spouse, and a psychopath.

http://www.macdonaldcasefacts.com
 
MADELEINE: I would be surprised if the 4th Circuit doesn't accept the Strip Mall Queen's pathetic excuse for a legal brief. The government has 17 days to file a response brief and they will destroy this ball of nonsense.

http://www.macdonaldcasefacts.com
 
SOURCE: 1999 DNA HEARING

BRIAN MURTAGH: With respect to nuclear DNA exemplars, we don't have blood samples from the victims at this point. I mean, they were sent to the Third Army Toxicology Laboratory in 1970, and apparently consumed in analysis then.

COMMENTARY: There you have it. Kathryn's hollow bluster about DNA tests on blood exhibits is at odds with simple logic. Hey, SMQ, you can't conduct DNA tests on non-existent exemplars.

http://www.macdonaldcasefacts.com
 
Further nuggets from everyone's favorite paralegal (e.g., Kathryn).

The District Court did not dispute that the Defendant qualified for protection under nine of the ten prerequisites he must meet for IPA eligibility...

...the request for relief under the IPA was not untimely...

...just one example of a manifest injustice that could be corrected by conducting DNA tests on certain key blood and other exhibits in 2015, using the latest technology available.

COMMENTARY: The government and, to a lesser extent, Judge Fox disagrees. In the following document, the government argued that...

http://www.crimearchives.net/1979_ma...sponse_dna.pdf

- MacDonald's motion for DNA testing fails to meet all ten requirements of section 3600 of the IPA

- MacDonald has failed to comply with the requirements of section 3600 of the IPA

- MacDonald's motion is untimely

- The requested testing was available in earlier proceedings

- MacDonald is precluded from making any additional motions under the IPA for testing

- The requested testing was previously made in a motion which was denied

- The motion to test evidence that was previously subjected to DNA testing is not based on new, substantially more probative technology

- MacDonald's motion to retest the blood evidence is inconsistent with his defense at trial

- MacDonald has failed to identify a theory of defense that is not inconsistent with that presented at trial that would establish his actual innocence

- And raise a reasonable probability that he did not commit the offense

- The motion is not reasonable in scope, does not use scientifically sound methods, and is not consistent with accepted scientific practices
 
When one takes a hard look at the "request" or "recommendation" for additional DNA testing on 84 exhibits, it becomes quite apparent that the defense is faced with several daunting obstacles.

- The weapons in this case were extensively handled to the point where even jurors were able to touch these exhibits

- Some of the exhibits include blood spatter on ceilings and walls

- Inmate never claimed he drew blood, much less cause an injury which would result in blood spatter

- Several exhibits were fully consumed in DNA testing at the AFIP labs

- Several exhibits were subjected to destructive DNA testing at the AFIP labs

Interesting quote from the government's 2011 response to the request for additional DNA testing.

"the instant IPA testing motion's 84 "recommendations" do not include the overwhelming number of bloodstains introduced as evidence at trial. This does not appear to be in recognition of the fact that almost all of the trial blood exhibits were attributed to the victims, however, and, therefore are not subject to DNA testing under the IPA merely to confirm these findings."

http://www.macdonaldcasefacts.com
 
After getting his butt kicked by the courts from 1982-2008, inmate must certainly be pleased with the decisions made by this 4th Circuit Court.

- Despite multiple court decisions frowning upon former counsel being a part of an Amicus Curiae filing, this 4th Circuit Court allowed Barry Scheck to advocate for inmate via Amicus Curiae brief

- Despite prior 4th Circuit judges denying inmate relief (e.g., 1992 and 1998) on the basis of "new" evidence (e.g., 4th Circuit called the evidence "specious"), this 4th Circuit Court remanded the case based on "new" evidence in conjunction with "the evidence as a whole"

- This 4th Circuit Court allowed NINE extensions for the defense to file an informal IPA brief

- Prior to the 8th and 9th extensions, this 4th Circuit Court talked tough and warned the defense that any further delays would not be tolerated

- After allowing an 8th extension, this 4th Circuit Court denied the defense motion for another extension, BUT then gave the defense 3 weeks to file an informal IPA brief

- Ah, last time I checked, providing someone with a 3 week window to file a brief is the SAME THING as allowing an extension

- After putting forth an allegedly unbending deadline (e.g., 5:00 PM) this 4th Circuit Court then wrapped a bow around this madness by allowing Kathryn to file the brief an hour late

I'm confident that unlike Kathryn's brief, the Government's IPA brief will be thorough and professional. Unfortunately, my confidence level in this 4th Circuit's ability to end this legal circus is non-existent. I don't think they care about the FACT that original DNA testing produced at least one inculpatory test result. A broken, bloody limb hair was found clutched in Colette's left hand. From 1970-2005, MacDonald advocates have claimed that the source of this hair was a hippie home invader. In the book FATAL JUSTICE, the authors stated that since a splinter from the club was also found in Colette's left hand, the wielder of the club was also the source of the limb hair. Fred Bost told me that this limb hair was THE most important DNA exhibit and predicted that the tests would prove that Greg Mitchell was the source of the hair. That didn't happen. The hair matched the DNA profile of Jeffrey MacDonald.

The following excerpts from Joe McGinniss's e-book FINAL VISION echoes my feelings about the issues presented in this post. The first excerpt is in regards to the 2012 evidentiary hearing.

What no one in the media wanted to acknowledge -- because it sucked all the juice out of the story -- was that there was no new evidence. Fox had convened this hearing as a means of demonstrating to the two Fourth Circuit judges the pointlessness of their instruction that the DNA evidence and the Britt affidavit be viewed through the prism of "the evidence as a whole." Those who'd come expecting high drama -- Errol Morris and his retinue among them -- soon left.

TWO PAGES LATER

Can anyone seriously argue that Jeffrey MacDonald has not been given his day in court? He'd been given years. He'd been given decades. And Fox intended to be sure that, by the time the hearing was over, no appellate court would ever again be able to suggest that MacDonald had not been given ample opportunity to avail himself of all his constitutional rights.

http://www.macdonaldcasefacts.com
 
I admire Errol Morris, but I will always be astonished that he thought that MacDonald might be innocent.


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ALEPH: Morris doesn't simply think that inmate might be innocent, he is convinced that inmate is innocent. In 2011, I had a 90 minute phone conversation with Morris and he recorded about 65 percent of that conversation. Morris was in the process of releasing his book A WILDERNESS OF ERROR, and I wanted to express my frustration with what appeared to be another book that advocated for inmate's innocence. Morris assured me that the book would not advocate for inmate's guilt or innocence. He claimed that the book would focus on the reasons why this case has endured in the public eye. Once the book was released, I realized that he had lied to me. WILDERNESS OF ERROR is a mess. It ignores most of the evidence that led to inmate's conviction and it exposed Morris as being nothing more than a literary con man.

http://www.macdonaldcasefacts.com
 
I was just reading up about Fatal Vision the telemovie about this case. I'm sure most of us know what happened to Judith Barsi who played the toddler version of Kimberley Macdonald even though Barsi was actually six at the time. The producers of Fatal Vision actually tried to get Barsi to wear diapers on screen to make the toddler age of the character more convincing.
 
Murtagh21 said:
ALEPH: Morris doesn't simply think that inmate might be innocent, he is convinced that inmate is innocent. In 2011, I had a 90 minute phone conversation with Morris and he recorded about 65 percent of that conversation. Morris was in the process of releasing his book A WILDERNESS OF ERROR, and I wanted to express my frustration with what appeared to be another book that advocated for inmate's innocence. Morris assured me that the book would not advocate for inmate's guilt or innocence. He claimed that the book would focus on the reasons why this case has endured in the public eye. Once the book was released, I realized that he had lied to me. WILDERNESS OF ERROR is a mess. It ignores most of the evidence that led to inmate's conviction and it exposed Morris as being nothing more than a literary con man.

http://www.macdonaldcasefacts.com
Click to expand...

I read that book. I can't get those hours back. I still don't understand what Morris was thinking.


Sent from my iPhone using Tapatalk
 
ALEPH: I hear ya. I felt the same way after reading FATAL JUSTICE. Speaking of FATAL JUSTICE, the following is from the back jacket of that abomination.

If you think you know the Jeffrey MacDonald case from FATAL VISION, think again. FATAL JUSTICE is the first account of the whole story: the crime scene that investigators treated like a muddy football field; the groundless suspicions, perceived as 'fact,' which fueled a juggernaut of judicial error; the false picture of Jeffrey MacDonald as a raging psychopath created by the prosecutors; the tragic way in which all that would normally count for his innocence counted for his guilt in MacDonald's trial and in FATAL VISION, the book and television movie that followed; and, most recently, the chilling effect of Supreme Court decisions which prevent MacDonald from presenting evidence that could prove his innocence.

FATAL JUSTICE asks and answers many of the central questions in the case: What is the real evidence against Jeffrey MacDonald? Why was he charged with the crime? And why, if he is innocent, was he convicted and sentenced to life imprisonment? Potter and Bost have done something rare and truly impressive. They have written a detailed story of what Edgar Allen Poe has called a 'wilderness of error,' an excursion into the ultimate Twilight Zone epic of an innocent man unable to get anyone to listen. After reading this book, you can draw your own conclusions. But it establishes one thing beyond a shadow of a doubt: Jeffrey MacDonald did not receive a fair trial -- not in the court of public opinion or in the courts themselves.

Errol Morris, director of "THE THIN BLUE LINE"

Yikes. That back jacket defense brief was a preview of things to come. FATAL JUSTICE was published in 1995 and it appears that Morris learned nothing from Bost and Potter's ball of speculation, distortion, and b.s.

http://www.macdonaldcasefacts.com
 
Just a little aside.... I grew up in Patchogue ny where he came from. it's one of those towns where families tended to stay generation after generation. I remember my friends parents talking in hushed voices about not being surprised and refusing to answer questions about him. I know they went to school with him. I have always been curious about this case.

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SILVER: Bob Keeler is a well-respected investigative journalist who is quoted at length in Janet Malcolm's THE JOURNALIST AND THE MURDERER. Keeler told Malcolm that he believed in MacDonald's guilt and that the key to unlocking the truth would be found in Patchogue. In the mid-70's, he spent considerable time in Patchogue and interviewed dozens of people. Prior to Joe McGinniss receiving the book writing gig, Keeler was hired by Freddy Kassab to write a book on the case. After McGinniss began writing his book, Keeler gave up on the project, but he provided McGinniss with his Patchogue-related research materials. Most of what is presented in FATAL VISION regarding MacDonald's pre-Princeton years, comes from Keeler.

http://www.macdonaldcasefacts.com
 
The government's thirty-two page IPA response brief was filed today and it meticulously takes apart Kathryn's two page brief. The most telling excerpts from the government's brief are as follows.

"The district court properly denied MacDonald's motion for new DNA testing under the Innocence Protection Act because it was untimely. The district court found that the motion was filed 82 months after the passage of the Act and 66 months after the conclusion of court-ordered DNA testing that MacDonald requested in 1997..."

"At the time MacDonald requested testing, Nuclear DNA technology was applicable, it was available, and MacDonald was on notice of the existence of the blood evidence presented at trial, and its significance. PCR-based Nuclear DNA testing was available prior to 1997, and Short Tandem Repeat typing likely was also. Each of these could have been used to discriminate between DNA profiles present in the bloodstain evidence. Additionally, MacDonald could have requested then-available mtDNA testing to exclude MacDonald family members from the blood evidence, but he did not."

"Nor would "touch" DNA appear to have any application to a determination as to the contributor of a particular bloodstain."

The government also pointed out that the defense never questioned the blood evidence at trial and that the reason they waited so long to file the IPA motion was for tactical reasons. The reasons stem from the distinct possibility that any "new" DNA testing would confirm that...

- The footprint was formed in Colette's blood

- The 4 bisected blood stains on inmate's pajama top were formed in Colette's blood

- The 5 fabric impressions found on the blue bedsheet were formed in Colette's blood

- Kimmie's blood was found on the blue bedsheet AND on inmate's pajama top

I remain skeptical that the 4th Circuit will deny inmate additional DNA testing, but I would be estatic if they finally sided with the government.

http://www.macdonaldcasefacts.com
 
Considering the depth of the government's brief, I would guess that Kathryn will ask for at least one extension to file a sur-reply. Given that the defense has already admitted that the IPA request is untimely, I would assume that Kathryn is going to continue with the "manifest injustice" argument. The legal loopholes that were a part of the original IPA/2255 requests have since been closed. It's safe to say that Kathryn and Joey Z are swimming upstream in their attempts to obtain relief for a convicted triple murderer.

http://www.macdonaldcasefacts.com
 
Joey Z filed the informal brief on time. Yup, you heard me right.

http://www.crimearchives.net/1979_ma...136-doc011.pdf

IMO, this brief was simply a rehash of prior defense arguments and that simply isn't going to cut it. The 4th Circuit Court basically gave Judge Fox the responsibility of deciding on the merits of the DNA/Britt claims in conjunction with the "evidence as a whole." Judge Fox did just that, yet Joey Z simply argues that Judge Fox's conclusions are wrong.

Joey Z provided a few examples of decisions that were overturned due to similar evidentiary arguments, but the cited cases didn't contain one-tenth of the evidence presented by the prosecution at the 1979 trial. Joey Z attempts to combat that FACT by repeating several times over that the prosecution's case at trial was "weak." Ah, no. The prosecution presented over 1,000 evidentiary items and that was only about 60 percent of their case file.

Joey Z's opinion about the strength of the prosecution's case is meaningless. The only opinions that matter are Judge Fox's and the jurors who convicted inmate in less than 7 hours. Joey Z was able to keep the case alive by convincing the 4th Circuit that Judge Fox should have ruled on the merits of the DNA/Britt claims using the 2255 as opposed to the 2244.

He no longer has that legal hammer to wield, so he simply regurgitates prior defense arguments. It's important to note that past appellate courts have called these arguments "specious." Judge Fox based his decisions on the 2255 (e.g., evidence as a whole) and determined that the evidence didn't raise to the level of vacating inmate's conviction or granting him a new trial.

The government will AGAIN destroy another defense brief and hopefully, the 4th Circuit Court will end this legal circus once and for all.

http://www.macdonaldcasefacts.com
 
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