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Jeffrey R. MacDonald, petitioner in the above-captioned case, hereby moves this Honorable Court, pursuant to Fed. R. App. P. 10(e)t to include as part of the record the so-called "slide box" shown to the Court at the oral argument of the instant petition, which contains, among other things, the slides of synthetic blond wig hairs taken from the clear handled hairbrush found in the MacDonald home. For purposes of this motion, the term "slide box" includes the box itself, the cover to the box on which the contents of the box were listed, and the contents of the box itself, which includes both the blond synthetic wig hair slides and the cardboard slide mailers (covers) that accompany each slide. As grounds for this motion, petitioner states as follows:
1. At the oral argument on June 26, 1991, the government presented to the court for inspection the slide box and its contents, which included the cover to the slide box, the blond synthetic hair slides, and the slide mailers (covers) that accompanied each slide. The government however, failed to request that the slide box and its contents be formally entered into the record as an exhibit.
2. As argued by counsel for petitioner at oral argument, the handwritten notations on the slide box cover are highly relevant to the issue of petitioner's lack of knowledge concerning the government's findings of 22-inch blond synthetic wig hairs. in his Brief at 31, and at oral argument, petitioner argued that the government's failure to include its blond synthetic wig hair findings in its final typed lab reports, while at the same time including references to "dark" synthetic hairs in the same reports, led the defense to believe that there were no exculpatory blond synthetic hairs found by the government.
3. The government responded by arguing that the defense was given full and complete access to the physical exhibits and that, had the defense's expert, John I. Thornton, opened the slide box and looked at the individual slide mailers, he would have discovered that the government's lab examiners had found 22-inch synthetic blond wig hairs in the clear handled hairbrush taken from the MacDonald home.
4. The government's argument failed to account for the fact that (a) the defense had no reason to believe that the government had made such exculpatory findings of blond synthetic wig hairs, and (b) the cover to the slide box referenced only "black" and "grey" synthetic hairs. As a result, anyone on the defense team who had read the final typed lab reports which referenced "dark" synthetic hairs would have had absolutely no reason to believe that the slide box contained anything other than the slides on which were mounted the "black" and "grey" ("dark") synthetic hairs. Had the slide box been properly labeled, such that it were to accurately list the entire contents of the box, petitioner's trial counsel and his forensic experts (a) would have learned of the government's blond synthetic hair findings and (b) could have made additional requests for the laboratory bench notes of the government's lab technicians who examined the blond synthetic wig hairs.
5. In its Memorandum of Decision dated July 8 1991 the Court, having directly viewed the slide box at the oral argument on June 26, 1991, made reference to "the box containing the blond synthetic fibers from the clear-handled hairbrush . . . [the cover of which was] labeled 'black, black & grey (illegible) synthetic hairs'". (Memorandum of Decision at 25) Thus, the slide box, its cover and its contents should be made part of the record to be available for inspection by the Court of Appeals.
For all the foregoing reasons, the "slide box" and its entire contents should be made part of the formal record.
DATED: July 12, 1991
Respectfully submitted,
Harvey A. Silverglate
Philip G. Cormier
Thomas C. Viles
SILVERGLATE & GOOD
89 Broad Street, 14th floor
Boston, NA 02110-3511
Telephone (617) 542-6663
Telecopier (617) 451-6971
Norman B. Smith
SMITH, FOLLIN & CURTIS
BB&T Building
101 South Elm Street
Greensboro, NC 27401
Telephone (919) 274-2992
Telecopier (919) 274-8490
Attorneys for Jeffrey R. MacDonald
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