MacDonald said that the “nightmare was over”. In fact, it was only just beginning. In May 1978, the US Supreme Court overturned the appeals’ court decision and reinstated the indictment. In October, the Fourth Circuit rejected MacDonald’s double jeopardy arguments and, in March 1979, the Supreme Court refused to review that decision. So in July 1979, nine and a half years after the murders, MacDonald finally came to trial.
In the meantime, Woerheide had died of a heart attack. His place would be taken by Assistant US Attorney James Blackburn, who was trying his first homicide case. He was a mild-mannered minister’s son from Winston-Salem, who MacDonald described as “chickenshit”. He used the case as a springboard to become the US Attorney of the Eastern District of North Carolina, but was later convicted of forgery, fraud and embezzlement.
Blackburn would be assisted by Brian Murtagh, who MacDonald called a “little viper, totally lacking in the social amenities”. Murtagh had been in a courtroom only once before, as a co-prosecutor in an obscenity case that the government lost. He was later accused of withholding several critical pieces of physical evidence that would have proven MacDonald’s innocence.
There were even claims that Judge Dupree was biased. James Proctor, a former Assistant US Attorney who had been involved in the MacDonald case, had been an associate in Dupree’s law firm from 1967 to 1969. He was married to one of Dupree’s two daughters, and fathered Dupree’s first grandchild.
Bernie Segal was still leading for the defence but, as a long-haired, liberal Jewish Yankee it was thought he might not go down well with a North Carolina jury composed of the law-andorder types his polling favoured. So he took on as co-counsel Wade Smith, a banjo-playing local man who could ladle on the drawl. Smith was one of the top trial lawyers in North Carolina, and he and Segal devised a defence strategy based on a simple premise.
“Is it possible for a person to live a good life and all of a sudden, in one moment, slaughter and mutilate his children, stab his wife many, many times, and then live out his life and have nothing like that happen again?” asked Smith. “And it suggests to me a reasonable doubt about whether he did it in the first place.”
To help pay for his defence, MacDonald tried to secure a book deal. His first choice as author was Joseph Wambaugh, the LAPD sergeant turned best-selling crime novelist. But this collaboration was scuppered at the first meeting.
“I had interviewed dozens and dozens of people who were survivors of horrific crimes – some immediately after the event, some many years later,” recalled Wambaugh. “I had never, in all my experience, seen anyone describe an event like that in the almost cavalier manner that Dr MacDonald described it.”
MacDonald settled on Joe McGinniss, the author of
The Selling of the President
, a best-seller in 1968. In 1979, McGinniss was writer-in-residence at the
Los Angeles Herald-Examiner
and read in the paper that the Long Beach Police Officers Association was giving a dinner dance to raise money for MacDonald’s legal defence. McGinniss, a former journalist, remembered the case when it first hit the headlines nine years before. He contacted MacDonald, who offered him an interesting proposition. If McGinniss wrote a book about the case from the perspective of the defence, he could live with the defence team in North Carolina and be privy to all their plans, strategies and deliberations. In return, McGinniss agreed to pay a portion of the proceeds from the book – 26.5 per cent of the publisher’s $300,000 advance and 33 per cent of the royalties – to MacDonald’s legal fund. As part of this deal, MacDonald agreed he would not sue McGinniss for libel no matter what he wrote.
Segal had hired forensic scientist Dr John Thornton to examine the crime scene evidence, but the prosecution would not hand it over.
“I was stunned to get the government’s response,” said Segal. “The government’s response is ‘Dr MacDonald is not entitled to receive this evidence now because he didn’t ask for it in time.’ I didn’t know whether to cry or to laugh.”
Judge Dupree then intervened.
“In almost any state court, the examination of evidence in a murder trial would be given as a right to the defence experts,” Segal complained. “But not with the Feds. It’s up to the judge’s discretion.”
While the army’s initial assessment of the CSI evidence had taken six months, Thornton was only allowed access to it for just a few weeks before the trial. Even then, Murtagh only allowed Thornton to examine the evidence one piece at a time in a small jail cell with boxes stacked all around the room. Handwritten lab notes made by army CID technicians were withheld, so the defence had very little idea of what they were looking at.
Dupree also prevented the defence from introducing Colonel Rock’s report, which found that the charges against MacDonald were not true. This prevented Segal from airing the incompetence of the CID’s investigation and their mishandling of evidence. Notes accompanying the report were also denied to the defence and they were not allowed to introduce into evidence the psychiatric evaluation of MacDonald, which suggested that someone of his personality type would not have been able to kill his wife and children. Dupree explained that since no insanity plea had been entered, he did not want the trial bogged down by contradictory psychiatric testimony from the prosecution and defence.
The defence were depending on the testimony of Dr Robert Sadoff and the government psychiatric witness that had appeared at the Article 32 hearings. Segal also wanted to call Dr Seymour Halleck, a well-known forensic psychiatrist. After examining MacDonald, Dr Halleck also pronounced him to have a stable, non-pathological personality who was not the type to commit murder. He was not allowed to testify.
Judge Dupree also disallowed the prosecution’s request to introduce several reports from the military investigators that claimed MacDonald may have murdered his wife and two daughters in a drug-induced rage. Dupree considered they were biased and based on hearsay. There was no evidence of drugs or intoxication when MacDonald was examined in hospital soon after the crime.
Judge Dupree would only allow psychiatric testimony if MacDonald underwent another psychiatric examination with a psychiatrist selected by the judge. Segal had very little choice but to go along with this. Dr James Brussel was picked, who had made his name on the cases of the Boston Strangler and the “Mad Bomber” George Metesky, who had terrorized New York planting bombs in public places in the 1940s and 1950s. After Brussel’s offender profile proved uncannily accurate in that case, the press dubbed him “the Sherlock Holmes of the couch”.
Some considered him a charlatan. Authors Jerry Allen Potter and Fred Bost, who wrote the book
Fatal Justice
about the MacDonald case, said: “Brussel’s dominant reputation was that of almost psychic criminalist with the power to describe a suspect without interviewing him, without seeing the crime scene, and without questioning witnesses. It was said that he often needed only to talk with police on the telephone to make his diagnosis . . . Brussel was also an innovative researcher into novel methods for controlling inmates in psychiatric institutions. Lamenting the frustrations of managing unruly patients and the cost of housing them in the late 1940s, Brussel and an associate instituted electric shock experiments on the brains of female inmates.”
After a brief examination, Brussel declared that MacDonald was a homicidal psychopath. What the defence did not know was that the CID had been consulting Brussel on the MacDonald case for eight years. Far from being an independent expert witness, Brussel had gone on record to say that MacDonald was guilty eight years before he had ever met him.
The defence was not given a copy of Brussel’s report before the trial, though Judge Dupree and Brian Murtagh got one. Judge Dupree then ruled that psychiatric testimony would not be presented to the jury because it would confuse the jurors. However, Brussel’s report that characterized MacDonald as a twisted monster was placed into the trial record even though the reports of the other psychiatrists were not.
Dupree also allowed the prosecution to introduce the 1970 copy of
Esquire
magazine found at the scene of the crime. This, they contended, was where MacDonald got the idea of blaming the murders on a hippie gang. While there was a bloody finger-mark on it, it was smudged so it could not be positively linked to MacDonald.
After nine years wrangling, the court case came down, once again, to the crime scene evidence. Key to the prosecution case was the so-called “pyjama folding experiment”. Brian Murtagh asked the FBI’s chief forensic expert Paul Stombaugh to fold the pyjama top so that the forty-eight small, smooth, round holes thought to have been made by an ice pick in the fabric matched the twenty-one wounds in Colette’s chest. Stombaugh did so and produced photographs of the pyjamas with metal skewers representing the blows of the ice pick sticking out of a mannequin. Blackburn and Murtagh explained to the jury that this was clear proof that MacDonald’s story was a lie and that he had covered his wife’s body with the top and then repeatedly stabbed her through it with the ice pick.
Segal had no access to the laboratory notes from either Stombaugh’s experiment or the original CID investigation, so the defence was at a severe disadvantage. However, Segal had discovered that Stombaugh, though head of the FBI’s chemistry laboratory, had only one year of formal training in chemistry. The judge would not allow this information to be presented to the jury.
During cross-examination, Segal was able to get Stombaugh to admit that there were significant differences in the position of the pyjama top shown in the crime scene photographs, where it is on top of Colette’s body, and its position in the photos of the experiment. In other words, Stombaugh had adjusted the position of the pyjama top to get the results he wanted.
Stombaugh’s evidence was countered by the defence’s forensic expert, Dr Thornton, who pointed out that, when subjected to violent, persistent stabbing, loose fabric like that of a pyjama top would move around, so subsequent stabbings would move the holes made by the first punctures out of alignment.
The defence also pointed out that the FBI experiment failed to take into consideration the thirty punctures and eighteen cuts in Colette’s own pyjama top, which would have lain between MacDonald’s pyjama top and Colette’s chest if the prosecution’s contention was correct. Stombaugh said he had not been asked to analyse the holes in Colette’s pyjama top.
Later, the lab notes, released under the Freedom of Information Act, showed that the CID’s forensic investigators had attempted the folding experiment, but found it could not be performed in a way that indicated MacDonald’s guilt unless they abandoned the scientific criteria that Stombaugh had given them.
During the Article 32 hearings in 1970, MacDonald had said: “I let go of the club and I was struggling with these two people and I realized that, you know, I couldn’t punch back. My hands were like bound up in my own pyjama top. I couldn’t get them out of the sleeve or something . . . as I was struggling, I received another what seemed like fairly impressive blow on the side of my arm and said to myself, ‘What do I do now?’ Really I was just struggling, trying to get my hands free. My hands themselves were free, but the pyjama stop was around my wrist and between my wrist and just around part of my hand really. And in the struggle, I had hold of one of these hands – I don’t know which one – and in the hand I saw a blade.”
The pyjama top, MacDonald maintained, had been damaged in that attack. So in the courtroom, Blackburn and Murtagh staged a dramatic reconstruction of events. With a similar pyjama top wrapped around his hands, Murtagh tried to fend off a series of blows from Blackburn, who was wielding an ice pick. The prosecution showed that the resulting holes in the pyjama top were jagged and torn, not smooth and round like the holes in MacDonald’s pyjama jacket. Also, during the re-enactment, Murtagh received a small wound on his left hand. But when MacDonald had been examined at Womack Hospital, he had no wounds on his arms or hands. The inference was that he had not been involved in a struggle as he claimed.
Dr Thornton then repeated the pyjama-folding experiment, using a ham, and testified that the pyjama top did not have to be stationary to give clean, round holes when stabbed with an ice pick. It could just as easily have been in motion.
Stombaugh also testified that the bloodstains on MacDonald’s pyjama top indicated that the tears in the fabric occurred afterwards as the stains on either side of the tears matched. The implication was that MacDonald had already fought with Colette. Her blood had stained his pyjama jacket. Then he had lain it on her body and stabbed through it. The defence had been given no chance to examine any lab notes supporting this new theory. When Segal asked for the photographic evidence, Stombaugh was unable to provide it. Nevertheless, the prosecution was able to make this assertion and the defence had no way to refute it.
Years later, when the defence team finally got its hands on the lab notes through the Freedom of Information Act, they found that Janice Glisson, a technician at the army’s forensic lab, had explored the same bloodstain theory and had come to a different conclusion. She had found that the stain edges on either side of the rips did not match, so the pyjama top was ripped before it was stained, not afterwards.
Stombaugh also claimed that he found a bloody hair from Colette’s head entwined with a fibre from MacDonald’s pyjamas. The defence knew nothing of this. The evidence had been provided by Murtagh, but he had not told Segal of its existence. Again the defence was wrong-footed and could not challenge the evidence. But they questioned how such damning physical evidence had not been produced nine years earlier.
Again, when laboratory notes were obtained through the Freedom of Information Act years later, it was clear that the CID combed through the physical evidence three times and found no hair entwined in a fibre. The bloodstained hair in question was not even Colette’s, but that of Kimberley. And it was not entwined with fibres from MacDonald’s pyjamas.