THE JEFFREY MACDONALD CASE

For researchers of the Jeffrey MacDonald case: The murders of Colette, Kimberley and Kristen MacDonald

EXHIBITS AND FINDINGS



February 19, 1991
Affidavit of Brian Murtagh




February 19, 1991: Affidavit of Brian Murtagh, page 1 of 37

February 19, 1991: Affidavit of Brian Murtagh, page 1 of 37

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
FAYETTEVILLE DIVISION
 

UNITED STATES OF AMERICA

:

 

 

:

No. 75-26-CR-3

v.

:

No. 90-104ĚCIVĚ3-D

JEFFREY R. MACDONALD

:

 

 

 

 

AFFIDAVIT OF BRIAN M. MURTAGH

 

     I, Brian M. Murtagh, first being duly sworn, state under oath the following:

     1.  I am currently an Assistant United States Attorney for the District of Columbia, and also serve as a Special Assistant United States Attorney for the Eastern District of North Carolina for this case.  I have held both appointments since May 1984.

     2.  I first became associated with the prosecutive efforts on behalf of the United States in the Jeffrey MacDonald case in December 1971 when I was the Assistant Staff Judge Advocate assigned to Headquarters, United States Army Criminal Investigation Command (HQ-USACIDC) in Washington, D.C.

     3.  From December 1971 to January 1975 I was continuously involved with the investigation of this case and assigned as the military liaison officer from HQ-USACIDC to assist U.S. Department of Justice Criminal Division Attorney Victor C. Woerheide during the grand jury investigation.  I joined the Department of Justice




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in March 1975, subsequent to the January 25, 1975 indictment of petitioner.  From March 1975 through May 1984, I was employed as a Trial Attorney in the Organized Crime and Racketeering Section, Criminal Division, U.S. Department of Justice.  From July 16, 1979 to August 29, 1979, I was co-counsel to James L. Blackburn, First Assistant United States Attorney, Eastern District of North Carolina, in the trial of this case.

     4.  From January 1975 until the case went up on appeal in August 1975, I assisted Victor Woerheide and Assistant U.S. Attorney James Stroud in providing to defendant MacDonald pretrial discovery of all Army CID laboratory reports and Brady statements which had been generated in the period between the dismissal of the military charges and petitioner's 1975 indictment.  I also provided all FBI laboratory reports generated up to August 1975.  At no time between petitioner's indictment and his August 1975 interlocutory appeal did petitioner's counsel take advantage of the prosecution's outstanding offer to allow defendant's representatives to inspect or examine the physical evidence.

     5.  On October 9, 1975, at my invitation, I accompanied defense attorneys Bernard L. Segal, Orrin Leigh Grover, III, Robert H. Hood, and Sara Simmons, Mr. Segal's student, to the FBI Laboratory, where they examined selected items of physical evidence of their choosing:  Exhibits Q-4, Q-5, Q-8 through 12, Q-15 and 16,




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Q-110 through 115, Q-117 through 120 (including, e.g., petitioner's pajama top and the bedsheet from the floor of the master bedroom).

     6.  Special Agent Paul Stombaugh's Report dated November 5, 1974 (See Murphy Affidavit Exhibit 7, at 58), which I disclosed to the defense prior to October 1975, and which they acknowledge having received (Segal Affidavit at 122), reflects that Q-117 (also designated as E-4, physical evidence taken from Colette MacDonald's right hand) contained a single blue acrylic fiber which was dissimilar to the fibers composing petitioner's pajama top and did not originate from that source.  In order to attempt to ascertain the source of this foreign fiber, I recall requesting that various items from the crime scene, including items of blue clothing, be compared to this fiber.  I was "greatly concerned that the source of this fiber be identified."  To that end, I wrote those words in my December 14, 1978 letter to Morris S. Clark, at a time when Q-117 was assigned to FBI Agent Examiner James C. Frier and FBI technician Shirley S. Green.  Moreover, I knew based upon reading the grand jury testimony of CID Chemist Dillard O. Browning, that additional uncompared fibers had been discovered which I hypothesized I might still be able to link to petitioner's rearrangement of the crime scene and assist the government's case. That was an additional reason for my request of further fiber comparisons.  In fact, some of these fibers were identified and used as evidence at trial.  For example, the fibers from the throw
rug which Frier identified on the club were the subject of a




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stipulation.  None of the fiber examinations I requested involved any of the fibers now at issue, and petitioner's defense team never made an issue of the blue acrylic fiber found in the victim's hand.

     7.  CID Chemist Dillard O. Browning testified at the grand jury to the existence of unmatched hairs and fibers found throughout the crime scene.  Contrary to petitioner's contention that this material was not disclosed, Browning's grand jury testimony was turned over to petitioner's attorneys on November 11, 1975 (Segal Affidavit, Exhibit 9, p. 104.) Additionally, petitioner's contention that there had been a misidentification of blue cotton fibers found around Colette's mouth ignores the Laboratory Report (Murphy Affidavit Exhibit 9, at 80) on Exhibit E-3, which reflects in Paragraph 33 that blue fibers in that exhibit matched the fibers in petitioner's pajama top.  Petitioner misconstrues Shirley Green's notes of a conference she had with me which reflect the fact that I informed her of the previous identification of blue fibers in Q-100 (E-3) which matched petitioner's pajama top (Murphy Affidavit, Exhibit 12, p. 108). It should be noted that this information was conveyed to Ms. Green in the context of the written request I had previously made (Murphy Affidavit, Exhibit 11 at 98) for comparison of the pink single strand fiber in Exhibit Q-100 (E-3) with known pink exemplars. In other words, I was telling Ms. Green not to spend time doing further comparisons in order to identify this blue fiber, which had previously been identified by Browning.




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     Further, petitioner ignores the fact that Green's inventory of Q-100 (Murphy Affidavit, Exhibit 12, p. 105) with respect to "one short yarn" (1/8" long, one ply Z, blue) (poly/cot) also reflects its origin from the pajama top. For a more legible copy of this document, See Affidavit of Shirley S. Green at Exhibit 21- 1 at p.174.

     In point of fact, as noted above, it was CID chemist Dillard Browning who made the original identification of the blue fibers that matched petitioner's pajama top in Exhibit Q-100 (E-3).  This original identification was recently confirmed by FBI Special Agent Examiner Michael P. Malone (See Malone Affidavit at 12, re: blue cotton/polyester found in Exhibit Q-100).  Moreover, since petitioner had always maintained that he had in fact used his pajama top to cover his wife's body, the government never sought to introduce this fiber into evidence, or the similar ones found on Colette's pajama top, since it considered these facts to be neither inculpatory nor exculpatory.

     8.   At no time either prior to or subsequent to the filing of this petition did Frier or Green ever advise me verbally or in written form of any other uncompared fibers or hairs which they discovered during the course of the 1979 examinations.




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     It was my practice to disclose all laboratory reports.  I do not have a specific recollection of whether I or James Blackburn turned this particular report (March 14, 1979) over to the defense. To the best of my recollection it was turned over to Defense Attorney Wade Smith.  If this report had not been turned over,
I do not believe that Mr. Segal, an experienced defense attorney, would have so readily stipulated to Mr. Frier's testimony if the laboratory report had not been made available to him in discovery.

     9.  It would have been my practice to request of Frier his laboratory bench notes in order to be prepared for possible Jencks Act requests.  I cannot now recall, after eleven years' time, whether or not I actually received them.  As it turned out, I did not need a Jencks Act statement for Frier.  I recall that Frier was one of the last witnesses to be presented, and did not, in fact, testify because petitioner's attorney Segal stipulated to his testimony about identification of the fibers from the K-30 throw rug found in Exhibit Q-89 (debris removed from the wooden club), and that Exhibit Q-126, a green acrylic yarn found on the floor of Kristen's room, matched the K-28 yarns.  This was part of the evidence which placed Colette MacDonald in Kristen's bedroom during the assault by petitioner.  In addition, the throw rug fibers found in the debris removed from the club contradicted petitioner's version of his movements during and after the assaults.  I can, however, state unequivocally that if I did have Frier's laboratory bench notes, I never reviewed their contents, until these




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allegations were first made by Ted Gunderson late in December 1988. See Exhibit 1 to this affidavit.  I had no reason to do so, since they were of no prosecutive interest to me.  I was interested in the results of identifications of hairs and fibers made by comparisons with known comparable samples.  The results of any such identifications made were contained in the final laboratory reports of all Army CID and FBI technologists which I did scrutinize with great care.


     10.  I first learned about the black woolen fibers found in Exhibits Q-88, Q-89, and Q-100, subsequent to petitioner's private investigator Ted Gunderson's letter to the FBI in December 1988 alleging a fiber misidentification and cover-up. (See Exhibit 1 of this Affidavit.)

     11.  Petitioner has erroneously claimed that with respect to Exhibits Q-88, debris from the right biceps of Colette MacDonald's pajama top, Q-100, debris removed from her mouth area, and Q-89, debris removed from the wooden club, that the laboratory notes reflected the presence of black, green and white wool fibers which are unidentified and could not be matched to any source originating in the home (Brief at 32).  As will be demonstrated infra, petitioner is attempting to confuse items which were in fact matched to known sources, and those for which no known sources




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existed in 1979, because virtually all of the clothing and household goods had been returned to MacDonald in December 1970. See Trial Tr. at 3853, See also Kassab Affidavit.
     With respect to Exhibit Q-88, there is no green woolen fiber, as reflected in Frier's notes (Murphy Affidavit, Exhibit 14, at 124); the green fiber is in fact rayon and was matched to K-30, the multicolored throw rug at Colette's feet (see FBI Lab Report at p.131, reprinted in Murphy Affidavit, Exhibit 15).  The white woolen fiber as reflected in Frier's bench notes (Murphy Affidavit, Exhibit 14) was fragmented and NSFC (not sufficient for comparison).  However, subsequent examination by SA Examiner Michael P. Malone revealed that this white woolen fiber matched the white woolen rug, K-33 (Malone Aff. at 10 ), not surprisingly, the rug on which Colette MacDonald's body was found.  Thus in Q-88 there remains only an uncompared black wool fiber which SA Frier deemed to be forensically insignificant.  Subsequent examination by SA Examiner Malone reflects that this "bluish black fiber" did not match any of the other black woolen fibers in Q-89 or Q- 100.Id. at 12.  However, it should be noted, that contemporaneous photographs of Colette MacDonald exist which picture her wearing various items of blue-black wool clothing (Exhibits 116, 117, 118) which were not available for comparison at the time of the trial or at any time thereafter.  Significantly, no blue/black clothing from any suspect was ever obtained or offered by petitioner for comparison purposes.




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      Further, with respect to Frier's bench notes (Murphy Affidavit Exhibit 14 p. 125) concerning Exhibit Q-100 (debris from mouth area of Colette MacDonald), petitioner points to the notation that Frier found 2 black woolen fibers for which he noted "source ?".  SA Examiner Malone characterized these fibers as actually "dark purple" in color, but agreed with Frier that their source was indeed unknown, a fact of no forensic significance. Id. at 12. (It should be noted that these dark purple fibers were dissimilar to the bluish black wool fiber in Q-88 and, as will be demonstrated infra, were also dissimilar to one bluish black wool fiber in Q- 89.) There were no green or white woolen fibers found in Q-100 as petitioner seeks to imply. Id. at 12, See also bench notes of Frier, Murphy Affidavit Exhibit 14, at 125.

      Subsequent examination of the previously uncompared debris of Q-89 by SA Examiner Michael Malone revealed one bluish black wool fiber and one green wool fiber.  The source of these fibers remains unknown. Additionally, SA Malone found white wool fibers in Q-89 which matched the white woolen fibers in K-33 (rug).See Malone Affidavit at 11.
     12.  Petitioner complains that he did not receive CID chemist Dillard Browning's laboratory bench notes which reference the possible existence of "one piece of what appears to be skin tissue" and "one medium brown pubic or body hair" in E-211 (Q-125). Petitioner has no cause for complaint here, since he chose not to
request Mr. Browning's bench notes after his direct testimony




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(Trial Tr. 3831) or at any time during his cross-examination, notwithstanding the fact that I elicited on direct examination (Trial Tr. 3792) that the collection vials contained "a multitude of different types of exhibits," and on redirect that Browning had not examined "every particle of matter in every vial." (Trial Tr. 3896).  Moreover, since as SA Examiner Malone has concluded that neither the piece of skin tissue nor the hair are sufficient for comparison purposes, this exhibit is of no forensic assistance to petitioner.  See Malone Affidavit at 14.


      Petitioner also complains that he did not receive Mr.


Browning's bench notes of E-124 (debris from purple/blue/green quilt in Kimberly's bedroom) in which Browning describes the presence of a medium brown pubic or body hair.  Again, petitioner chose not to ask for these bench notes. Forensically, this exhibit is insignificant also, because E-124 (Q-93) consists of one brown limb hair of Caucasian origin, which does not possess sufficient characteristics to be of value for significant comparison purposes See Malone Affidavit at 13-14.  It should be noted that this limb hair is cumulative to the unidentified limb hair found in Colette `MacDonald's left hand (Q-119, E-5) which was disclosed in an FBI Laboratory Report (Murphy Affidavit, Exhibit 7, at 58 ), testified to by SA Stombaugh at trial (Tr.4156-58) , and was the subject of defense argument in closing ( Tr. 7265-67) .




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      Also included is petitioner's complaint that he did not receive Browning's bench notes with respect to Exhibit E-52NB(Q- 87), in which there is a reference to "one medium brown pubic or body hair." It is important to remember that E-52NB is described in the CID Laboratory Report which petitioner acknowledges receiving prior to trial (Murphy Affidavit Exhibit 31, p.l93) as "hairs and fibers from the bedspread on the bed in North Bedroom." Further, in the report, Browning eliminated petitioner as the possible source of this hair when pubic and body hair samples were obtained from him during the summer of 1970.  Defense paralegal Murphy obscures the obvious fact that the description in the CID Laboratory Report put petitioner on notice of a hair which did not match any of his hairs.  Subsequent examination by SA Examiner Malone confirmed that this hair was of no value for comparison purposes.  See Malone Affidavit at 10.


With respect to petitioner's protest about Exhibit E- 303, his contentions about Browning's bench notes concerning the presence of "one long green-brown cotton fiber bloodstained" are the same as noted above: he did not ask for them, even though he was on notice of "many other fibers, which [Browning] did not compare with this [pajama] jacket" from Browning's grand jury testimony (Tr. 39, see also 63) and his direct testimony at trial, supra.  Moreover, based upon the notice given petitioner by the grand jury and direct examination testimony, Mr. Segal emphasized this point in his cross-examination of Browning:




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Q.  There were in fact a great many other fibers and threads that were collected and submitted to you for examination, were there not?

A.  Yes, there were. (Tr. 3879)

* * * * *

Q.  As a matter of fact, you were never able to ascertain the source of these many other fibers; as to where they came from; is that also correct?

       Mr. Murtagh:   Objection.

       The Court: Overruled.

A.  I made no effort to ascertain where fibers came from, where there was no known for a comparison.  This would be a waste of time of no value.  On objects that I had available to me, such as the multi-colored rugs from the bedroom and certain yarns found in the various locations in the house, if I had these as a known, then I compared the unknowns with these.




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      There were many single fibers or loose fibers from which I had no controls to compare with it.  These I did not compare. (Tr. 3880: emphasis added.)

      His further contention pertaining to notations in laboratory bench notes concerning "two brown cotton sewing threads" and "one blue-black and green blend yarn" in this same exhibit (E-303), designated Exhibit Q-79 by the FBI, which he ascribes to former FBI Examiner Stombaugh, are actually notes of FBI technician Shirley Green.  See Green Affidavit, Exhibit 21 at 182-183.  Accordingly, all of his allegations with respect to the non-production of Stombaugh's material are irrelevant.

   13.  The decision to resist the pretrial discovery of laboratory bench notes and methodology was originally made by
senior attorneys Woerheide and Stroud during the 1975 litigation of pretrial motions, a decision upheld by the trial judge. My role in the grand jury phase of this case focused my interest in the hair exhibits, principally on the unidentified, hair found in Colette MacDonald's hands.  When known exemplars of Colette MacDonald's head hair were obtained, and the blond hair identified as her own, this ceased to be an area of concern.  As a result, until the filing of the present petition, I never had any concern or technical knowledge about the hairbrush exhibits except as related to the presence of dark human hairs found in Exhibit E- 35, which at the Article 32 hearing MacDonald had claimed were left




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by intruders, ( Art 32 Hr.Tr. at 407) but which were identified by Glisson, before I came on active duty in the Army, or became involved in the case, as belonging to Colette's mother Mildred Kassab, and not Helena Stoeckley. See Murphy Affidavit Exhibit 6, at 53, and Exhibit 8, at 63. Accordingly my interest in hairbrushes during the Grand Jury phase, when I first met Janice Glisson, and continuing up to the Summer of 1990, I would equate as equal to that of Mr, Segal's, who during the cross examination of Browning stated in reference to the presence of Mildred Kassab's hair in the hairbrush: " I am not interested in that. We know you have identified that." See Trial Tr. at 3886 .

     14.  To the best of my recollection, I never reviewed any of Army CID chemist Janice Glisson's laboratory bench notes pertaining to hair and fiber examinations, because I had read her formal reports, and she was a chemist assigned to the case as my primary serology (blood chemistry) expert.  I am certain that I never reviewed any of her bench notes pertaining to reports R-24 and R- 25 concerning the examination of the hairbrushes now at issue, until 1990. See infra at para. 16.  I was interested in and recall seeing various bench notes of serology examinations that she had performed which I could not decipher.  Because of the fact that it took four different chemists to establish the blood type of any one stain, in 1975 I requested that she prepare a collation of the multiple examinations which reflected the identity of the chemist,
the test performed, and the results.  This she did, and these




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reports were the only ones prepared by her which I scrutinized, since they formed the basis for my order of proof at trial for witnesses Glisson, Flinn, Laber, and Chamberlain.  I anticipated that the bench notes of these chemists would be discoverable at trial as Jencks material.  Therefore, I requested (as I stated in my March 1, 1979 letter to the Executive Officer of the CID Laboratory (Murphy Affidavit Exhibit 10)) that two copies of the bench notes be copied.  At trial, although defense demands for the bench notes of another government expert were made and met (see trial transcript p. 4254), no defense demand for the bench notes of chemists Browning, Glisson, Laber, Flinn and Chamberlain, was made after the conclusion of their direct testimony or at any time during their cross-examination.

     15.  The petitioner was on actual notice that Glisson had performed hair and fiber examinations on the three hairbrushes in question based upon the fact that she signed Laboratory Reports R- 24 (Murphy Affidavit Exhibit 6) and R-25 (Murphy Affidavit Exhibit 8) as well as from the grand jury testimony of Browning. In fact, at trial, petitioner sought to cross-examine Browning on G1isson's hair examinations.  Since the Court sustained my objection that cross-examination of Browning using G1isson's report was improper, petitioner indicated that he intended to call Glisson as his own witness, but never did. (Tr. 3858-3860)   He cannot now be heard
to complain that he chose not to explore that area with Glisson.




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    16.  I first learned about the existence of the "blond synthetic fibers" in Exhibit K (E-323) described in the bench notes of CID Chemist Janice Glisson when a member of the media contacted me during the summer of 1990 and told me about them.  At about the same time, I learned from Alfred Kassab, Colette MacDonald's stepfather, who had also been contacted by the same media representative, that Colette had owned and had worn a fashion wig- type hairpiece called "a fall" which he still retained.  As a result of this information, and both prior to and without waiting for the filing of the current petition, I requested that the FBI obtain the fall, K-47, and compare it to the blond synthetic fiber in Exhibit K (E-323) so the possible source of the blond synthetic fiber could be determined.

   17.  I visited the crime scene numerous times between 1973 and 1979, never looking for black woolen fibers as petitioner claims (Brief p. 38 fn.29).  I did cause to be examined the blue woolen sweater retrieved from the crime scene by SA Murray, because I wanted to determine whether it was a possible source of the blue acrylic fiber found in Colette MacDonald's hand and disclosed in the FBI Laboratory Report.  The sweater was discovered to be wool, and thus not a possible source for that blue acrylic fiber. See Murphy Affidavit Exhibit 34, at 265.

   18.  As the time for trial approached, I was responsible for making the arrangements for the transportation of all of the




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physical evidence which was examined or retained in the FBI Laboratory.  Prior to having the evidence moved, I had a number of witness conferences at the FBI laboratory with the CID chemists, Glisson, Chamberlain, Browning, and CID Agent Ivory, who had processed the crime scene and examined the evidence.  During this process, items were identified to simplify any future introduction of them into evidence at the trial.  The system of collecting and storing evidence begun by the Army CID, and continued in this case by the FBI, involved a voucher system.  By use of the term voucher I mean that the CID would prepare a Military Police Property Receipt, DA-19-31, which listed and described the items collected in a particular area of the crime scene, and which would be assigned aa numerical classification, i.e. 72-70.  The physical items themselves were stored in a large cardboard box, or voucher, which had the corresponding voucher number written on the side. The box might contain many items only one or two of which would ultimately be introduced in evidence.  However, because the chain of authentication as well as the chain of custody depended on this system, I strove to keep the potential trial exhibits as well as the non-exhibits together in their correct box or voucher. Accordingly, before the evidence was transported it was packed by voucher.  In the process of working with these evidence vouchers, particularly in searching for small items such as pill vials, I would repeatedly encounter items for which I then had no evidentiary use, but which I now recall.  For example, on numerous occasions I remember coming across petitioner's white emergency




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room shoes, Kristen's large stuffed dog, and several hairbrushes. Similarly, I can recall that there were multiple gray cardboard slide boxes which contained.microscopic evidence on slides that had originally been mounted by the CID laboratory and subsequently transported by me to the FBI laboratory in 1974 while I was still assigned to HQ USDCIDC.

     On April 7, 1979, I accompanied Special Agent Donald M. Murray, FBI, when he transported to the U.S. Courthouse in Raleigh the totality of the physical evidence which had been examined or retained by the FBI laboratory in Washington, D.C.  I specifically recall that Special Agent Murray took custody of the evidence consisting of FBI Exhibits Q1-Q129, from FBI Technician Shirley S. Green (see Green Affidavit Exhibit 130), and loaded it into an FBI station wagon which had been obtained specifically for this purpose.  I recall that the 33 boxes ("vouchers") of evidence filled all but the front seat of the station wagon.  Upon arrival at the U.S. Courthouse in Raleigh, North Carolina, we were met at the loading dock by other FBI agents, including Special Agent Madden, who physically moved the evidence to a holding cell in the United States Marshals' Office.

     Subsequently, I identified for Deputy Clerk Shirley Rodgers the majority of the physical evidence which I intended to offer in evidence, which she pre-marked, including all of the government's exhibits which contained threads or yarns from petitioner's pajama




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top.  These exhibits included the following: Q89 (E-205) GX 307, debris removed from club; Q79 (E-303) GX 327, debris from under trunk and legs of [Colette MacDonald's] body; Q-125 (E-211), GX 105 debris removed from blue sheet on floor of master bedroom; ; Q-87 (E-52NB) GX-362, hairs and fibers from bedspread on bed in north [Kristen's] bedroom.

     Also present in the cell were items Q-88, "debris from right biceps area of Colette MacDonald's pajama top,"; Q-100, "debris from around the mouth area of Colette MacDonald's mouth";and Q- 93(-124)" debris from purple, pink, and green quilt in [Kimberly's] bedroom.  In addition to numerous other items present in the cell from April 7, 1979 and throughout the duration of the trial, direct appeal, and collateral proceedings, was a box of slides consisting of exhibits Q-43 through Q-54. See Exhibit 2 to Malone Affidavit.

     As best I can recall, in late March or early April 1979, Mr. Wade Smith entered the case as local defense counsel.  At this juncture, Assistant United States Attorney Blackburn as the lead Government attorney took on some of the responsibility for responding to defense discovery and production requests directly with defense counsel Smith.  I had previously handled all of the discovery production with defense counsel Bernard L. Segal.

     During early April 1979, there were continuous conversations between the United States Attorney's Office in Raleigh and both of




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petitioner's counsel concerning petitioner's informal demand that the physical evidence be shipped to California for examination by defense expert Dr. John Thornton.  On April 24, 1979, Mr. George Anderson, the United States Attorney, sent a letter to defense counsel Segal, which I drafted, in which it was stated:

     We are willing to make the physical evidence available to all counsel of record for the defense at any appropriate time to be agreed upon in Raleigh, North Carolina.  We are willing for counsel of record or anyone under the direction of counsel of record, along with a designated representative of the United States Government, to examine any of the physical evidence, either microscopical1y without alteration l/ or macroscopically without alteration 2/, or loss of identity of that physical evidence.
___________________
l If an item is mounted on a slide, it may be viewed under the microscope, it may not be removed from the slide and further dissected, nor may any other item not mounted on a slide be mutilated, melted, polarized, vaporized, or otherwise altered.

2/ If, for example, a splinter fits into a piece of wood, that splinter or the piece of wood may not be dissected or altered in any fashion.




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See Exhibit 2 to this Affidavit.  That same day, April 24, 1979, petitioner formally moved for the first time for the production of tangible objects and their shipment to Dr. Thornton in California. As I recall, the Government's primary concern was not to impair its continuous chain of custody of the evidence.  Also of great concern, and the subject of much litigation, was the nature of any serological testing of bloodstained exhibits.  This concern was based upon two considerations.  One was the potential for the alteration of the configuration of certain fabric impressions in blood, if cuttings were taken for serological testing from these stains.  The other was the protection of the integrity of the fact finding process by precluding the testing of blood stains which were too old at that time to be reliably tested.  Apart from these considerations, I was not opposed to defense examinations of the evidence, including the crime scene, and repeatedly urged Mr. Segal to do so to in order to avoid similar eleventh hour defense requests on the eve of the trial.  See Tr. May 10, 1979, Hearing On Motions at pp. 10,32. See Government Response to Motion to Re- examine Crime Scene at 13.

    The issue of the scope of serological testing was not resolved until the court entered an order on July 6, 1979 (Segal Affidavit at 134-135).  However, microscopic examination of hair and fiber evidence at the facilities of the North Carolina State Bureau of




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Investigation laboratory were provided for by the court's earlier order dated June 19, 1979, which provides in pertinent part:

    Under date of April 24, 1979, the defendant filed a motion to compel production of tangible objects consisting of virtually all the physical exhibits within the custody of the government to the defendant's independent expert, Dr. John Thornton, for examination and analysis.  A response to the motion was filed by the government on May 2, 1979, and a hearing was held on May 10, 1979.  Subsequently, the court orally informed counsel for both the defendant and the government that portion of the defendant's motion requesting that the physical evidence be sent to California, the residence of Dr. Thornton, was denied.  After receiving additional written argument, supplemented by affidavits, from both the defendant and the government, the court has secured the laboratory facilities of the North Carolina State Bureau of Investigation for use by the defendant and the motion of the defendant to compel production of the tangible objects referred to above to Dr. Thornton in California is denied.
    The Court will allow Dr. Thornton to examine the physical evidence which is presently located in a jail cell under the custody of the United States Marshal.




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Such examination is to be conducted only in the presence of appropriate representatives of the government and is to be for the purpose of determining precisely what it is the defendant wishes to examine and how the examination is to be conducted.  Should the government oppose any request made on behalf of Dr. Thornton, such request will then be ruled upon by the Court prior to any further action being taken.  With respect to those requests to which the government agrees, they may be acted upon without further ruling by the Court.  In all examination and testing of the physical evidence by the defendant, the physical evidence shall remain under the custody and control of the government, and the government, through appropriate representatives, shall have the right to be present during all such examination and testing.

    Finally, the defendant is ordered to file both with the Court and the government a list of all exhibits examined and the results of any examination or testing as soon as possible upon the completion of any examination or test, but in no event later than July 12, 1979. See App., Exhibit 4 p.48.






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    As I have previously declared under oath above, and in connection with the 1983 Government's Response to Motion to Re- Examine Crime Scene (Docket Entry #262), at page 15, the evidence in the jail cell was made available to Dr. Thornton during the week of June 19, 1979. 1

     To the best of my recollection the inspection and examination of the evidence in the jail cell, during the week of June 19, 1979, transpired as follows:


___________________
1


During the week of June 19, 1979, counsel for both sides and Dr. Thornton met in the United States Marshal's Office.  At that time Dr. Thornton was provided access to all of the boxes of evidence (evidence vouchers) stored in the mail cell. 10/  Dr. Thornton was assisted in locating all specific items (e.g. the defendant's pajama top, the sheets from the master bed, the floor boards containing the bloody footprint), which he requested to examine. Prior to leaving the Marshal's office to go to the North Carolina State laboratory facilities, Dr. Thornton, asked for and was given cuttings from the surgical rubber glove fragments, which ultimately formed the basis of defense expert Dr. Vincent P. Guinn's testimony (Trial Tr. at 4891). Later that week the physical evidence which Dr. Thornton selected for examination was brought to him at the State laboratory by the FBI Case Agent Donald M. Murray.

______________
     10/  It will be demonstrated, infra, that the items which defendant now wants to examine the crime scene for, were in fact made available for his examination before the trial in 1979.



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    Dr. Thornton, accompanied by Mr. Wade Smith met me, AUSA Blackburn and Special Agent Murray in the administrative offices of the U.S. Marshal.  After introductions, Messrs. Blackburn and Smith left. I stated to Dr. Thornton, whom I had never met before, words to the effect that I was familiar with the evidence and if he would give me the exhibit numbers or describe the items, I would be happy to help him find them.  I made it quite clear that he could look at and select for later examination at the SBI laboratory anything he wanted, in accordance with the court's order of June 19, 1979.  As best I can recall, Dr. Thornton did not supply me with exhibit numbers at that time, but rather described what he wanted in generic terms such as the "pajama top" and the "bed sheet."  In addition to those items which he would later examine at the SBI laboratory, Dr. Thornton also asked to take sample cuttings from the known surgeon's latex gloves and the latex fragments found at the crime scene for neutron activation analysis. Based on Dr. Thornton's request, I authorized Special Agent Murray to make the samples available, and the cuttings were made by Dr. Thornton in the cell.  At some point while in the cell I asked Dr. Thornton whether he wanted to have the hair and fiber exhibits, including those which matched petitioner's pajama top, located and made available at the SBI laboratory.  Dr. Thornton indicated that he did not want to examine these exhibits.  I recall this because I was surprised that he would not be challenging these items and because his answer relieved me of the not insubstantial burden of finding all these exhibits for him. See also, statement of Dr. John




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Thornton quoted in Segal letter of May 24, 1979 (reprinted in Segal Affidavit.at 133), in which Thornton states that the trace evidence which might indicate the presence of other participants had "been given short shrift by the prosecutors' experts."  All exhibits which Thornton identified for later examination were brought to him at the North Carolina Sate Bureau of Investigation (SBI) Laboratory by Special Agent Murray.

    I believe it was the next day when I saw him examining the pajama top and sheet at the SBI laboratory, when  I asked Dr. Thornton why he had not chosen to examine any of the hair or fiber exhibits.  To the best of my recollection his reply was to the effect that if he had unlimited time and resources, he probably would have examined these exhibits, and he chose not to examine these exhibits because, in his experience, the FBI laboratory Raleigh was pretty reliable with these types of evidence.

     My relationship with Dr. Thornton was quite cordial and open. At one point during his examination of petitioner's pajama top, I recall that Dr. Thornton attempted to pull my leg by jokingly acting as if he were about to set fire to this key piece of government evidence with his pipe lighter.

     Had Dr. Thornton been interested in any of the synthetic fibers found in hairbrushes, he could have asked to see the "dark strands" found in the blue handled hairbrush, E-322, which Glisson




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listed in her signed report (R-24) as "synthetic fibers" (Murphy Affidavit, Exhibit 6, p.54), which report Dr. Thornton acknowledges he read prior to that time. (See Thornton Aff. re Motion to Re- Examine).  This would have caused me to give him the blue handled hairbrush and the accompanying slides.  I believe that since the slides were also listed in the FBI laboratory report of October 17, 1974 (Murphy Affidavit at Exhibit 22, pp. 174-175), I would have located and given him the cardboard box of slides marked " Q-43 - Q-54 by the FBI, but previously marked "Synthetic hairs" by Glisson on the cover of the box (See Glisson Affidavit, see also Malone Affidavit Photo Exhibit and Exhibits 2 and 3).  An examination of the contents of the box for the "synthetic hairs", I have subsequently learned, would have led to the slides in two cardboard mailers (holders) which were both plainly labeled by Glisson as "K" synthetic hair blond," see photo, Malone Exhibits 5 and 9 [Q-46- Q-49] Malone Affidavit.  These handwritten notes of Glisson's which were made available before trial to Dr. Thornton, would have made the contents of the slides readily apparent to anyone, including a non-expert.

    On July 6, 1979, the court entered its order limiting the serological examination to tests for the ABO blood groups.  More than two weeks later, on July 22, 1979, the defense first requested cuttings of exhibits D-l9, D-127, D-56NB and D-60.  The cuttings were taken in my presence by Glisson, and each cutting was further divided in half, photographed by me, and one set given to Mr. Wade




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Smith in my presence on August 2, 1979, in the courtroom by SA Murray and receipted. See Exhibit 43, Government's Response to Motion to Re-Examine Crime Scene.  The portions of the cuttings of these exhibits retained by the government were forwarded to the FBI laboratory for their analysis as to whether the bloodstains were too old to test.


   Also available for Dr. Thornton's examination in the jail cell during the week of June 19, 1979 and thereafter, were boxes which contained all of the other hair and fiber evidence in the case, received by Special Agent Murray.  On at least one occasion in my presence, Dr. Thornton chose to turn his attention to other evidence and declined the opportunity to physically inspect the hair and fiber evidence that the government made available to him.

   19. At trial, retired FBI Examiner Paul M. Stombaugh testified on direct examination on August 7, 1979. Included in his direct examination was extensive testimony concerning the identification of threads and yarns, including Exhibit Q-79, (See transcript pp.4100-4101), and exhibits raised in the current petition (Tr. 4093-4105).  He also testified more generally about the comparisons performed on the hairs, including blond head hair and unmatched Caucasian limb hair, found in Colette's hands (See transcript pp.4088-4113, and pp.4l56-4160).  During the cross- examination by defense attorney Segal, on August 8, 1979, Mr. Segal




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observed that "the witness has been making use of his notes" and requested "that I am going to ask at the end of our session that we be given those to examine and make a copy of them." (Transcript 4254). He further states that he will "read his notes tonight" and "double back on a couple of areas" the next morning if necessary. (Transcript 4255) Mr. Segal spent the latter part of the afternoon examining the witness on these very same threads and yarn exhibits without these notes.  That evening, I turned over to the defense all of Stombaugh's bench notes that had been requested that were in my possession. The next morning, Mr. Segal continued his cross- examination on hairs and fibers.  Mr. Segal said that he wanted to know the "details of what you [Mr. Stombaugh] actually did. I want to know about the basic prooess." (See transcript p. 4320).  Mr. Stombaugh answered: " Sir, When I make an identification, I am satisfying my own mind. I put it in my notes to be refreshed later on in case they should go to trial." (Id.)

    No complaint was ever made, at that time or thereafter, until eleven years later with the filing of this petition, that the handwritten bench notes turned over did not discuss either the thread, yarn and hair evidence such as Exhibit Q-79 about which Stombaugh testified on the stand, or indeed, any of the numerous hair, thread, and fiber exhibits. (See Plaintiff's Exhibit 16) Moreover, my recollection agrees with that of Dr. Thornton, that hg, Thornton, undertook the responsibility to copy whichever of
Stombaugh's notes he desired.  Dr. Thornton further avers that




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"these notes were immediately reviewed by myself, and Mr. Segal and other members of the defense team." (See Thornton Affidavit p. 8 Para. 17).  He returned my copy to me in the courtroom the next day with his " thanks", and without complaint.  I have no way of knowing at this time, whether he, or someone else, actually copied all of the Stombaugh materials made available.  No mention was made by any member of the defense team, either to me personally, or publicly on the record, that these laboratory bench notes about the questioned hair and fiber exhibits about which Stombaugh had explicitly testified, were missing, if in fact they were missing.


     Further, I have examined the.Murphy Affidavit, Exhibit 21, pp. 170 and 171, in which defense paralegal Murphy identifies the missing' bench notes of Stombaugh, pertaining, inter alia, to Exhibit Q-79.  Murphy is mistaken again.  I recognize these particular inventory notes as being in the handwriting of FBI Technician Shirley S. Green, as their cover letter suggested (See Thornton and Bisceglie's Affidavits, Exhibit 17, page 132).  But more to the point Shirley Green has identified these notes pertaining to Exhibit Q-79 as being in her own handwriting. See Green Affidavit at Exhibit 17,pp. 140,144. Green, in fact, did not testify about any hair or fiber comparisons at trial. Dr. Thornton is similarly mistaken in his identification of one page of Green's inventory bench notes which he ascribes to Stombaugh (Exhibit 13, page 58).  The other page to which he refers, page 57, is




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Stombaugh's and merely identified Q-93 as containing a brown Caucasian limb hair.  This hair is cumulative, at best, when one recalls that another Caucasian limb hair found in the victim's own hand (Q-119) which could not be identified, was testified to by Mr. Stombaugh at trial (transcript p.4l57-4158) and unsuccessfully argued to the jury in the defense closing. (See Malone Affidavit pp.12-13).

20.  With respect to the Memorandum of Law drafted by law clerk Jeffrey Puretz, it is apparent from the FOIA number 1010 at the bottom right hand cmrner, that this document was among those released by the Department of Justice FOIA unit on or about June 21, 1983, but in any event no later than November 14, 1983, See Affidavit of L. Jeffrey Ross. Thus, an earlier team of petitioner's attorneys received this Memorandum more than 8 years ago pursuant to their FOIA request.


     My general practice was to have a Memorandum of Law prepared in advance of trial on all possible issues.  I requested this Memorandum prior to trial in order to apprise myself of the law regarding Brady v. Maryland and its progeny in the Fourth Circuit in light of my anticipation that anything and everything was potentially exculpatory in the view of defense attorney Segal.  It was my intention to keep myself apprised of my obligations under the case law and to fully meet them.  It was our obligation as




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prosecutors to do this while at the same time, mdnimizing any premature disclosure of Jencks material which might be used to tailor the testimony of another witness or otherwise confuse another witness or the jury.
     I felt then, as I do now, that I met my obligations under Brady by disclosing all inculpatory statements, i.e. Stoeckley, et.al., by providing all laboratory reports, grand jury testimony, and by making the physical evidence available for defense inspection and examination on at least two separate occasions.

     21.  Subsequent to the jury verdict on August 29, 1979, I never objected to the release of any laboratory bench notes, draft reports, or inventories, prepared by any of the Army or FBI examiners or technicians under the Freedom of Information Act (FOIA).  Indeed, I personally made all of my witness files used at trial available to the Department of Justice FOIA technician Sophia A. Novinsky, including the laboratory bench notes and draft reports of Army CID chemists Glisson and Browning which were in my possession, and.which I identify as Exhibits 4,11,12, and 13 in the Appendices to the Affidavits of Ross and Andersen.

     After petitioner's conviction, I never made any objection to the release of Army CID documents under FOIA.  During the week of March 2, 1984 I received from Mr. G.M. Andersen, Chief, Release of Information Branch, HQ, USACIDC, the laboratory bench notes which Mr. O'Neill had requested directly from the CID laboratory, for my




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releasability review.  Included within these materials were pages 754-791 consisting of the bench notes of Glisson (Exhibit 2 Appendix to Andersen Affidavit ), which are identical to pages 2- 41 of Exhibit 1 of the Murphy Affidavit pertaining to the blond synthetic fibers in the clearhandled hairbrush (E-323).  On March 14, 1984, I sent a memorandum (See Exhibit 36, p.512 appendix to Ross Affidavit) to Mr. L. Jeffrey Ross, Chief FOI/PA Unit, Criminal Division, stating in pertinent part:

... In essence Mr. Anderson has forwarded the original, unprocessed CID laboratory bench notes and draft reports with the suggestion that the Department of Justice release them.  I have reviewed these notes and have no objection to the Army processing these Army materials, and releasing them to Mr. O'Neill.  It should be noted that there is a Grand Jury transcript of one of the chemists (Janice Glisson) contained in these materials, which should not be released by the Army.
    Mr. Anderson should also be requested to retain a copy of the lab documents which he releases to Mr. O'Neill and to return the originals to the CID Laboratory.

   The only objection I ever made to petitioner's voluminous requests for FBI documents under FOIA was shortly after the granting of certiorari on the Government's Petition for Certiorari,




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on May 27, 1981, when I first appreciated the eventual certainty of a Motion for a New Trial based upon Helena Stoeckley's posttrial statements to defense investigator Ted L. Gunderson.  Consequently, on June 10, 1981, I wrote to Special Agent Walter Scheuplein in the FBI FOIA Unit: "On May 27, 1981, the United States Supreme Court granted the Solicitor General's Petition for Certiorari.  As a consequence, this litigation will continue, and further investigation will be undertaken in anticipation of motions for a new trial.  Accordingly, I request that any and all requests under FOIA concerning Jeffrey R. MacDonald or Helena Stoeckley be denied pursuant to Subsection b(7)A of the statute pending the final resolution of this 1itigation."  (See Murphy Affidavit, Exhibit 35).

        And in fact, on July 27, 1981, after having read the 1,026 page 1980 Gunderson Report which I received in early 1981, I initiated the FBI investigation in order to assess and appropriately respond to its allegations. (See Exhibit 3 to this Affidavit).  My desire to prevent the premature disclosure of the Government's investigation and its use by petitioner to subsequently tailor his allegations was we1l-founded.  For example, the Gunderson Report claimed at Volume I page 196A that alleged murderer Mazerolle was "not in custody at the time of the murders" but free on bail.  The FBI investigation revealed that this was incorrect and that Gunderson and would-be author Bost had both blundered: Mazerolle was in jail at the time of the murders.  This




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fact was not disclosed by the government until the filing of the Government's Response to the Motion for a New Trial Based Upon Newly Discovered Evidence and it was instrumental in discrediting petitioner's Motion (See Transcript, September 19, 1984, Hearing on Government's Motion for an Evidentiary Hearing, pp. 131-142).

     In July 1983, even prior to the filing of petitioner's Motion for a New Trial, not filed until April 1984, I concurred in the FOIA release of all investigative data compiled prior to the date of petitioner's conviction, including the laboratory bench notes of Shirley Green (See Murphy Affidavit Exhibit 12), the draft report of James Frier (See Murphy Affidavit Exhibit 13), the laboratory bench notes of James Frier (See Murphy Affidavit Exhibit 14), the laboratory report (See Murphy Affidavit Exhibit 15), the FBI laboratory communications, worksheets, and bench notes pertaining to the blue woolen sweater (See Murphy Affidavit Exhibit 34 pp. 262-266), and my Memorandum of December 14, 1978 concerning additional laboratory examinations sent to Morris S. Clark (See Murphy Affidavit Exhibit 11).  The face of these documents now shows the use by former counsel to petitioner of a date stamp stating: "Received Jul 20 1983 "FBI", reflecting that these documents were released to petitioner almost eight years ago by FBI FOIA Specialist Ruth Roppel, with my concurrence (See Roppel Affidavit).




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    Indeed, my comparison of the October ; Murphy Affidavit

(Exhibits 11,12,13,14,15,22,34) with the FBI releases of July 11, 1983 (See Roppel Affidavit), plus the date stamping on the face of the documents themselves, reveals only a single page (See Murphy Affidavit Exhibit 34 page 261) which is itself non-substantive, which was not produced in 1983.  This was apparently because this page was in the Charlotte Field Office file, and not at FBI headquarters. (See Roppel Affidavit)

    Thus, all of the substantive material about which petitioner now complains, was in fact released nearly a year before petitioner filed his first Motion for a New Trial in 1984.  Indeed, that Motion was based upon some of the other documents, including Army CID laboratory bench notes, received by defense attorney O'Neill on June 30, 1983 (See Motion to Set Aside Judgment of Conviction, April 5, 1984, Exhibits J,K,L,M).





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     22.  After I first heard press accounts in 1988 which led me to believe that defendant MacDonald would be filing a second successive Petition for a New Trial,  I requested the various custodians of documents to review and preserve their records.

                 Special Assistant United States Attorney

                 Eastern District of North Carolina

                    Fayetteville Division

Subscribed and sworn before me this day of February, 1991.