On Michael Malone and the Jeffrey MacDonald Case

I have written a number of posts over the last couple of months about the Donald E. Gates case. As you will recall, Gates was convicted of a crime he did not commit and initially spent 16 years in jail in large part due to the false testimony of former FBI analyst Michael P. Malone.  In 1997, after the government became aware of problems with Malone’s testimony, Gates then spent another 12 years in prison before the government notified his attorneys of what they had found out. Gates wasn’t released until December 2009. This was 28 years after he was falsely convicted.

A  couple of weeks ago, I got a call from a woman who told me she had been following my posts on Donald Gates.  I am always glad to hear from readers of this blog – either by phone, by email or through a comment on the site – and I thanked her for her kind words.

When I asked her who she was, she told me that she was named Kathryn and that she was the wife of Jeffrey MacDonald.

I was racking my brain to determine why the name sounded so familiar. Had I grown up with him?  Gone to college or law school with him?  Worked with him?  Then it occurred to me:  “You mean the famous Jeffrey MacDonald?  The Jeffrey MacDonald from the book and T.V. show from 20 years ago?”

There was a moment of silence on the other end of the line.  “I don’t know that he’s famous,” the woman said.  “But, yes, there was a book about 30 years ago.”

The caller was Jeffrey MacDonald’s current wife, Kathryn.  She had read my blog entries on Michael Malone and wanted to find out what else I might know.  She told me that Malone had also been involved in her husband’s case through an affidavit filed by the government during MacDonald’s appeal in 1990.  The affidavit played a key role in the court’s denial of the appeal.  And, as with Malone’s testimony in the Gates and other cases, the affidavit was later proven to have been false.

Malone had been, as it turns out, a one-man conviction machine before being transferred out of forensics in 1997, a man whose testimony played a key role in securing convictions for Donald Gates and a number of other defendants. He lied about having done tests and research he never conducted.  He got on the stand and testified to scientific conclusions completely unsupported by the facts. He was the “go-to” guy for prosecutors.  When other analysts refused to testify for the government, citing contrary or inconsistent results, prosecutors knew they could go to Malone for the testimony they were seeking. Malone could always be counted on to testify to whatever they needed him to say.

For those of you who are not familiar with the MacDonald case, the case made national news when, one early morning in February 1970, military personnel were called to the apartment of Jeffrey MacDonald and his family at Fort Bragg.  Upon arrival, response personnel found MacDonald unconscious and lying next to the body of his dead wife.  His two daughters were found brutally murdered in their bedrooms. MacDonald himself had been stabbed with a knife with enough force to puncture a lung. He was also suffering from head and other wounds.

MacDonald told investigators that he had stayed up late that night after his wife and daughters went to bed. He said he was sleeping on the couch in the living room when he heard his wife and children screaming.  He himself was attacked and knocked unconscious by two men, accompanied by another man and a woman wearing a blond wig under a floppy hat. He recalled the woman chanting “acid is groovy” and “kill the pigs.”  When MacDonald awoke, his wife and daughters were dead.

While the case made national news at the time, many people know about the case because of Fatal Vision, a book Joe McGinniss wrote about the case in 1983.  McGinniss claimed he believed in MacDonald’s innocence at the time he began research for the book.  He suggested he was initially enamored with the good-looking, all-American former Green Beret and doctor who had been unable to protect his family from the group of hippies who invaded the house that night.

McGinniss was granted complete access to MacDonald and his legal team during the time period prior to MacDonald’s trial in 1979, in fact becoming a formal member of the MacDonald defense team, and he reportedly shared living quarters with MacDonald during the trial.  While it is unclear exactly when McGinniss began to doubt MacDonald’s innocence, he certainly had no doubts as to MacDonald’s guilt at the time he completed the book.

McGinniss maintained in the book that he had trouble reconciling MacDonald’s account with the lack of evidence suggesting anyone else had been in the apartment that night. He couldn’t figure out why a strong and healthy Green Beret hadn’t been able to ward off the intruders and protect his family or why MacDonald had suffered only superficial injuries given the brutality with which the rest of his family had been murdered.  The saddest part of the book, if I recall it correctly, is the passage in which, according to McGinness’ account, MacDonald had already killed his wife and oldest daughter.  McGinniss is almost compassionate in describing how difficult it must have been for MacDonald to carry out the last act necessary to complete the triple homicide; that is, the killing of his two-year-old daughter Kristen.

The McGinniss book is still controversial in many respects. The relationship of a writer to his subject continues to be as relevant today as it was then. There were, for example, questions as to whether McGinnis lied about his true intentions to MacDonald in order to maintain the unfettered access to MacDonald that McGinniss enjoyed. Throughout the time period from trial to publication of the book, McGinniss maintained that his book “would tell the true story” and help MacDonald clear his name.  McGinniss also lived in MacDonald’s house during this time period, with home-cooked meals prepared by MacDonald’s mother. It is difficult to believe that McGinniss hadn’t begin to question MacDonald’s innocence well before this point.

More importantly, it is unclear to what extent McGinniss was reacting simply to the evidence that was available at the time and to what extent he was eager on writing a book that would sell. McGinniss later admitted that he had been pressured by his publisher to sharpen the manuscript (he eventually settled a lawsuit brought by MacDonald for $350,000), and he did end up with a compelling story.  I remember coming away from reading it with absolute certainty that MacDonald had killed his family.

Since Fatal Vision, a number of other people have looked at the same facts and arrived at a completely different conclusion.  In Fatal Justice from 1995, for example, Jerry Allen Potter and Fred Bost tell a different story.  It turns out that there was plenty of evidence supporting MacDonald’s account of that night, things that were never mentioned in the McGinniss book. Military policemen responding to the scene that night did in fact see a woman standing alone at 3:55 am in a wide, floppy-brimmed hat near the MacDonald apartment.  And a woman named Helena Stoeckley eventually came forward to confess that she had been in the apartment that morning and could name the murderers.  She said she had worn a blond wig, a floppy hat and boots, just as MacDonald described.  She also passed a lie detector test.

Fatal Justice also details a long and horrifying list of abuses committed by prosecutors, investigators, and judges in the MacDonald case. While the list is far too lengthy to describe in detail here, you are left with the conclusion that Malone’s false affidavit was just the tip of the iceberg.  The list includes multiple instances in which the prosecution failed to turn over exculpatory evidence in the government’s possession that would have confirmed large parts of MacDonald’s version of events that night.  Other evidence that implicated MacDonald and that was used at trial to convict him miraculously appeared many years after the initial investigation.

The point is, while I have no more ability to assess the accuracy of Fatal Justice than I had upon reading the McGinniss book more than thirty years ago, there was clearly much more to the story than McGinniss suggested.

On the phone a couple of weeks ago, Kathryn MacDonald tells me that she knows her husband is innocent.  She tells me this without prompting because I never could have asked.  She could never be married to him, she tells me, if she thought he might have done those things.

Kathryn MacDonald is about my age, but she is pretty and her voice is youthful.  She is so pleasant, so unassuming, so convinced of her husband’s innocence that I want very much to believe her.

But I really don’t know what to believe. The problem is, until the government can take the necessary steps to prevent abuses like the Michael P. Malone cases, we can never know what to believe.  Any confidence we might have had in the government’s ability to sort through these same facts and arrive at the right solution through the judicial system is completely belied by the government’s handling of the Michael P. Malone case.

Multiple prosecutors, both federal and state, called Michael Malone to the stand to testify for the government in numerous cases when they either knew or should have known that the testimony he was about to deliver was false. Multiple supervisors within Malone’s chain of command at the FBI refused to take corrective action when alerted to repeated instances of Malone’s perjury.  Malone was relieved of his forensic responsibilities in 1997 and retired in 1999, and while the government claims it is now investigating him and other analysts against whom similar accusations have been leveled, Malone has never, as far as I know, been disciplined or sued.  And, in many cases, Justice officials waited for years (13 years in the Donald Gates case) to notify defense counsel of the Malone abuses.

A couple of month ago, I suggested that the new forensic laboratory currently being built in the District of Columbia should be named after Donald E. Gates, the man who spent 28 years of his life in jail because of the false testimony of Michael P. Malone.  The idea, I argued, would be to remind every single person who worked in the lab upon arriving at work each day of the horrifying injustice that can occur when the public trust is abused.   At the very least, it should remind each person of what happened to Mr. Gates.  Pointing to the National Academy of Science recommendation on the need to preserve the independence of forensic labs, I also argued that D.C.’s new lab should be completely independent of the Metropolitan Police Department or any other law enforcement group operating within the District.

Failing this latter suggestion, you might as well name the facility after Michael P. Malone instead. The failure to ever hold Malone accountable for the injuries he inflicted on Donald Gates, Jeffrey MacDonald and others makes Malone the winner and all the rest of us the losers in this whole sordid mess. A government laboratory dedicated to Malone would be a fitting memorial to this legacy.

Note:  United States v. MacDonald is, after 40 years, under review by the Fourth Circuit on an actual innocence claim.

Sources:  Fatal Vision by Joe McGinniss, 1983;  Fatal Vision by Jerry Allen Potter & Fred Bost, 1995; Tainting Evidence:  Inside the Scandals at the FBI Crime Lab by John Kelly and Phillip Wearne, 1998.