Petition for Writ of Certiorari — Jeffrey R. MacDonald, Petitioner v. United States

APPENDIX A

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-7136

UNITED STATES OF AMERICA,

Plaintiff — Appellee,

v.

JEFFREY R. MACDONALD,

Defendant — Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at

Raleigh. James C. Fox, Senior District Judge. (3:75-cr-00026-F-1; 5:06-cv-00024-F)

Argued: January 26, 2017 Decided: December 21, 2018

Before MOTZ, KING, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in which Judge Motz and

Judge Harris joined.

ARGUED: Joseph Edward Zeszotarski, Jr., GAMMON, HOWARD & ZESZOTARSKI,

PLLC, Raleigh, North Carolina, for Appellant. John Stuart Bruce, OFFICE OF THE

UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:

Leslie K. Cooley, Assistant United States Attorney, Jennifer P. May-Parker, Assistant

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,

North Carolina, for Appellee.

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KING, Circuit Judge:

Over the last four decades, we have repeatedly been called upon to review Jeffrey

R. MacDonald’s trial and convictions in the Eastern District of North Carolina for the

murders in 1970 of his pregnant wife and their two young daughters at Fort Bragg. In

April 2011, we remanded for further proceedings on two habeas corpus claims being

pursued by way of a successive 28 U.S.C. § 2255 motion — a prosecutorial misconduct

claim based on the newly discovered evidence of former Deputy U.S. Marshal Jimmy

Britt (the “Britt claim”), plus a freestanding actual innocence claim premised on the

results of DNA testing (the “DNA claim”). See United States v. MacDonald, 641 F.3d

596 (4th Cir. 2011). Thereafter, in July 2014, the district court ruled that MacDonald has

failed to make the evidentiary showing necessary to pursue the Britt and DNA claims by

successive § 2255 motion, and that he has also failed, in any event, to establish the merits

of the Britt claim or the DNA claim. See United States v. MacDonald, 32 F. Supp. 3d

608 (E.D.N.C. 2014). We granted MacDonald a certificate of appealability under 28

U.S.C. § 2253 and, as explained herein, now affirm the district court’s judgment denying

the § 2255 motion.!

' Between our 2011 decision and today, in March 2016, we also affirmed the

district court’s denial of MacDonald’s motion for additional DNA testing pursuant to the

Innocence Protection Act of 2004, 18 U.S.C. §§ 3600-3600A (the “IPA”). See United

States v. MacDonald, 642 F. App’x 264 (4th Cir. 2016). MacDonald had filed his IPA

motion in September 2011, early in the remand proceedings. The district court denied the

IPA motion in August 2014, after denying MacDonald’s § 2255 motion. See United

States v. MacDonald, 37 F. Supp. 3d 782 (E.D.N.C. 2014).

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I.

A.

As detailed in our 2011 decision, see MacDonald, 641 F.3d at 599-603, the brutal

murders of MacDonald’s wife and two daughters occurred in the family’s Fort Bragg

apartment on February 17, 1970. At the time, MacDonald was a physician and Captain in

the U.S. Army Medical Corps whose training and work included emergency medicine

and surgery. He was initially charged with the murders by the Army, but those charges

were eventually dismissed. In January 1975, MacDonald was indicted by the federal

grand jury in the Eastern District of North Carolina. As a result of a series of pretrial

motions and interlocutory appeals, MacDonald’s trial did not begin until July 1979. At

the conclusion of the seven-week trial, the jury found MacDonald guilty of one count of

first-degree murder and two counts of second-degree murder. His convictions resulted in

three consecutive life terms of imprisonment and were ultimately affirmed on direct

appeal. Between 1984 and 1997, MacDonald filed a series of motions for postconviction

relief, including § 2255 motions. MacDonald did not succeed on any of those motions or

in the related appeals, except that, in 1997, we granted his request for DNA testing and

remanded for that limited purpose.”

2 On direct appeal following the 1979 trial, we reversed MacDonald’s convictions

on the ground that his Sixth Amendment guarantee of a speedy trial had been

contravened by the government’s delay in obtaining the federal indictment. See United

States v. MacDonald, 632 F.2d 258 (4th Cir. 1980). The Supreme Court reversed our

judgment and remanded for further proceedings. See United States v. MacDonald, 456

U.S. 1 (1982). On remand, we assessed MacDonald’s remaining appellate contentions

(Continued)

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The ensuing proceedings have involved the claims now before us, i.e., the Britt

and DNA claims. See MacDonald, 641 F.3d at 603-07. In January 2006, before the

DNA testing was completed, we granted MacDonald prefiling authorization for the

successive § 2255 motion raising the Britt claim. See 28 U.S.C. § 2244(b)(3). That is,

we determined that the § 2255 motion makes a prima facie showing that it satisfies

§ 2255(h). See United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003) (“The court

of appeals must examine the application to determine whether it contains any claim that

satisfies § 2244(b)(2) (for state prisoners) or § 2255[(h)] (for federal prisoners).”). In

pertinent part, a successive motion can be sustained under § 2255(h) if it contains a claim

and affirmed his convictions. See United States v. MacDonald, 688 F.2d 224 (4th Cir.

1982).

In 1984, MacDonald filed his first motion for postconviction relief, seeking a writ

of habeas corpus under 28 U.S.C. § 2255 and a new trial pursuant to Federal Rule of

Criminal Procedure 33. The district court denied relief, see United States v. MacDonald,

640 F. Supp. 286 (E.D.N.C. 1985), and we affirmed, see United States y. MacDonald,

779 F.2d 962 (4th Cir. 1985). Thereafter, in 1990, MacDonald filed his second motion

for postconviction relief, again asserting claims under § 2255. The district court rejected

those claims as lacking merit and being procedurally defaulted. See United States v.

MacDonald, 778 F. Supp. 1342 (E.D.N.C. 1991). Without reaching the merits of the

claims, we affirmed the procedural default ruling. See United States v. MacDonald, 966

F.2d 854 (4th Cir. 1992). In 1997, MacDonald moved under Federal Rule of Civil

Procedure 60(b) to reopen the proceedings on his second postconviction motion, and he

requested DNA testing. The district court construed the Rule 60(b) motion to partially

constitute an unauthorized successive § 2255 motion, otherwise refused to reopen the

proceedings under Rule 60(b), and withheld DNA testing. See United States v.

MacDonald, 979 F. Supp. 1057 (E.D.N.C. 1997). By a 1997 order and a 1998 opinion,

we denied authorization for a successive § 2255 motion and affirmed the denial of Rule

60(b) relief, but we granted the request for DNA testing and remanded that matter to the

district court. See United States v. MacDonald, 161 F.3d 4 (4th Cir. 1998) (unpublished)

(explaining 1997 order remanding for DNA testing).

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based on “newly discovered evidence that, if proven and viewed in light of the evidence

as a whole, would be sufficient to establish by clear and convincing evidence that no

reasonable factfinder would have found the movant guilty of the offense.” See 28 U.S.C.

§ 2255(h)(1). Pursuant to § 2244(b)(4), however, we left it to the district court to conduct

a more searching assessment of whether the Britt claim satisfies § 2255(h)(1). See

Winestock, 340 F.3d at 205 (“When the application is thereafter submitted to the district

court, that court must examine each claim and dismiss those that are barred under

[§ 2244(b)(2) or § 2255(h)].”).

In March 2006, shortly after the § 2255 motion was submitted to the district court,

the results of the DNA testing finally became available. MacDonald promptly moved to

add the DNA claim as a predicate to the pending § 2255 motion, as well as to have the

DNA test results considered as part of the “evidence as a whole” in the court’s

assessment of the Britt claim. Separately, MacDonald submitted a mass of other

evidence — including evidence excluded at trial, evidence submitted with prior

unsuccessful motions for postconviction relief, and evidence more recently discovered —

that he contended was also part of the “evidence as a whole.”

By its decision of November 2008, the district court ruled that the DNA claim’s

absence from the § 2255 motion at the time of prefiling authorization deprived the court

of jurisdiction over that claim. See United States v. MacDonald, No. 3:75-cr-00026

(E.D.N.C. Nov. 4, 2008), ECF No. 150 (unpublished). The court also excluded the DNA

test results and the other evidence submitted by MacDonald from its assessment of the

Britt claim. The court then decided, focusing on the facts alleged in support of the Britt

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claim and on the evidence admitted at trial, that MacDonald had not made the evidentiary

showing necessary to sustain the § 2255 motion.

On appeal, we concluded that the district court had taken an “overly restrictive

view of what constitutes the ‘evidence as a whole,” erroneously omitting the DNA test

results and other non-trial evidence from its assessment of the Britt claim. See

MacDonald, 641 F.3d at 614. We thus remanded “for a fresh analysis of whether the

Britt claim satisfies the applicable standard of § 2255(h)(1).” Jd. Additionally, we

determined that the court had erred in deeming itself to be without jurisdiction over the

DNA claim, and that the court instead should have considered adding the DNA claim to

the § 2255 motion under Rule 15(a) of the Federal Rules of Civil Procedure. Id. at 615-

16. Rather than instructing the court to conduct a belated Rule 15(a) evaluation on

remand, we simply granted MacDonald prefiling authorization for the DNA claim.

3 With respect to the district court’s assessment of the Britt claim, our 2011

decision also recognized that the court had erred by applying the § 2244(b)(2)(B)(ii)

standard for state prisoners, rather than the § 2255(h)(1) standard for federal prisoners.

See MacDonald, 641 F.3d at 609-10. We deemed that error to be “probably harmless”

because of the similarities between § 2244(b)(2)(B)(ii) and § 2255(h)(1). See id. at 610;

see also § 2244(b)(2)(B)(ii) (requiring dismissal of a claim raised in a successive 28

U.S.C. § 2254 application unless “the [newly discovered] facts underlying the claim, if

proven and viewed in light of the evidence as a whole, would be sufficient to establish by

clear and convincing evidence that, but for constitutional error, no reasonable factfinder

would have found the applicant guilty of the underlying offense”); In re Dean, 341 F.3d

1247, 1249 n.4 (11th Cir. 2003) (observing that § 2244(b)(2)(B)(ii) and § 2255(h)(1) are

“materially identical”). But see Case v. Hatch, 731 F.3d 1015, 1035 (10th Cir. 2013)

(concluding that § 2255(h)(1) contains crucial linguistic differences that render it more

lenient than § 2244(b)(2)(B)(ii)). In the end, we did not concern ourselves with the

harmlessness question, because it was necessary to remand for a fresh analysis of the

Britt claim in any event.

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B.

At bottom, by our 2011 decision, we remanded for the district court to assess the

Britt and DNA claims under § 2255(h)(1), and for such other and further proceedings as

may be appropriate. In so doing, we examined various requirements for successive

§ 2255 motions engendered by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). Most importantly, we recognized that § 2255(h)(1) obliges the

movant “to proffer some new evidence in support of his habeas corpus claim.” See

MacDonald, 641 F.3d at 612 (citing § 2255(h)(1)’s requirement for “newly discovered

evidence”). Section 2255(h)(1) then requires the court to determine whether that new

evidence, “if proven and viewed in light of the evidence as a whole, would be sufficient

to establish by clear and convincing evidence that no reasonable factfinder would have

found the movant guilty of the offense.”

To define what constitutes the “evidence as a whole” for purposes of a

§ 2255(h)(1) assessment, we relied on pre-AEDPA precedent from which § 2255(h)(1)

derived, including the Supreme Court’s decision in Schlup v. Delo, 513 U.S. 298 (1995).

We discerned that “the ‘evidence as a whole’ is exactly that: all the evidence put before

the court at the time of its ... § 2255(h)(1) evaluation.” See MacDonald, 641 F.3d at

610. We elaborated that the court must make its “§ 2255(h)(1) determination —

unbounded ‘by the rules of admissibility that would govern at trial’ — based on ‘all the

evidence, including that alleged to have been illegally admitted [and that] tenably

claimed to have been wrongly excluded or to have become available only after the trial.””

dd, at 612 (alteration in original) (quoting Schlup, 513 U.S. at 327-28). In other words,

F

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“the ‘court must consider all the evidence, old and new, incriminating and exculpatory,

without regard to whether it would necessarily be admitted under [evidentiary rules].’”

Id, (alteration in original) (quoting House v. Bell, 547 U.S. 518, 538 (2006) (explaining

Schlup)). We cautioned, however, that the movant is not entitled to “the benefit of every

doubt.” /d. Rather, “the court must give ‘due regard to any unreliability of? the evidence

and ‘may have to make some credibility assessments.’” Jd. at 612-13 (quoting Schlup,

513 USS. at 328, 330).

The § 2255(h)(1) determination, as we explained, requires the “court to assess how

reasonable jurors would react to the overall, newly supplemented record.” See

MacDonald, 641 F.3d at 613 (quoting House, 547 U.S. at 538). If the court rules in the

movant’s favor under § 2255(h)(1), the movant merely passes a procedural bar to having

his habeas corpus claim considered on its merits. That is, the movant remains “obliged to

prove ... that claim before obtaining any § 2255 relief thereon.” Jd. at 614.

Il.

To inform its procedural and merits assessments of the Britt and DNA claims on

remand, the district court conducted a seven-day evidentiary hearing in September 2012

and obtained post-hearing memoranda from MacDonald and the government. In its

decision of July 2014, the court provided a lengthy and detailed chronicle of the evidence

underlying the Britt and DNA claims and the other 28 U.S.C. § 2255(h)(1) “evidence as a

whole.” See MacDonald, 32 F. Supp. 3d at 619-86. At the outset, the court explained

that — rather than attempting to identify every piece of evidence it had reviewed — it

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endeavored to highlight the evidence deemed most significant by the parties. The court’s

decision described evidence admitted, and excluded, at the 1979 trial, as well as evidence

submitted between 1984 and 1997 with MacDonald’s various unsuccessful motions for

postconviction relief. The decision also detailed later-discovered evidence, including, but

not limited to, the evidence underlying the Britt and DNA claims. We also have

conducted a comprehensive review of the record and now present our own summary of

key evidence.*

A.

The 1979 murder trial, at the federal courthouse in Raleigh, focused on competing

accounts of the murders of MacDonald’s pregnant wife, Colette, and their daughters,

five-year-old Kimberly and two-year-old Kristen.> As MacDonald has described it, the

day preceding the murders — February 16, 1970 — was an ordinary one. Around 6:00

a.m., MacDonald completed a twenty-four-hour shift at a civilian hospital where he

“moonlighted” for extra income, and then he made the sixty-mile drive back to his

family’s Fort Bragg apartment. MacDonald ate breakfast at home, worked on official

military duties throughout the day on Fort Bragg, and, shortly after 5:00 p.m., took

Kimberly and Kristen to feed their pony. That evening, the family had dinner together in

4 We summarize the trial evidence in section IJ.A; the previously-submitted and

later-discovered postconviction evidence, excluding the evidence principally underlying

the Britt and DNA claims, in section II.B; the Britt claim evidence in section II.C; and the

DNA claim evidence in section II.D.

> We use the indictment’s spelling of “Kimberly.” The correct spelling, however,

may be “Kimberley.”

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the apartment, and then MacDonald stayed there with Kimberly and Kristen while

Colette attended a class at the Fort Bragg campus of North Carolina State University.

Colette returned home at about 9:40 p.m. after stopping at a convenience store for milk,

and she and MacDonald watched television together in the living room while the girls

slept in their bedrooms.

After Colette retired to the master bedroom, according to MacDonald, he finished

a television show and washed dishes in the kitchen. At some point, MacDonald heard

Kristen cry in her bedroom, and he took her a bottle of milk to get her back to sleep in her

bed. He also listened to the radio while lounging on the living room couch and reading a

crime novel into the first hours of February 17, 1970. Around 2:00 or 2:15 a.m.,

MacDonald went to the master bedroom, only to discover that Kristen had crawled into

bed with Colette and wet MacDonald’s side of the bed. MacDonald carried Kristen to

her bedroom, took a blanket to the living room, and, within a few minutes, fell asleep on

the couch. As was usual, MacDonald had left two lights on — a light in the kitchen that

gave some illumination to the nearby living room, and a light in the family’s shared

bathroom between their three bedrooms.

It is what transpired next in the MacDonalds’ apartment in the early morning

hours of February 17, 1970, that has been most vigorously disputed by MacDonald, on

the one hand, and by the government, on the other. In MacDonald’s account, his wife

and daughters were slaughtered by a group of intruders who also assaulted him.

MacDonald became aware of the intruders when he was awakened suddenly in the living

room by Colette’s and Kimberly’s screams and cries for help from the bedroom area at

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the other end of the apartment’s hallway. As MacDonald arose from the couch in

response, he saw three men with short, military-style haircuts and a woman with blond

hair and a white floppy hat who appeared to be carrying a lighted candle and chanting,

“Acid is groovy; kill the pigs.” MacDonald engaged in a battle with the male intruders in

the living room for less than a minute. The trio assaulted MacDonald with a baseball-batlike club, as well as a knife and an ice pick. During the encounter, MacDonald’s blue

pajama top was either ripped from around his back or pulled over his head. The blue

pajama top then became wrapped around his wrists and hands. Once that happened,

MacDonald used the pajama top to protect his chest from a series of punches and stabs.

He sustained one significant laceration before being knocked unconscious. When

MacDonald awoke later lying facedown over the step between the floors of the living

room and the hallway leading to the bedrooms, the intruders were gone, and his family

was dead.

On the word of MacDonald, his subsequent actions included the following, though

not entirely in this order: removing his puncture-hole-filled blue pajama top from his

wrists and hands; rotating between his lifeless wife and daughters in their respective

bedrooms while unsuccessfully attempting to revive them; pulling a knife from Colette’s

chest and throwing the knife away from her within the master bedroom; laying his blue

pajama top over Colette; covering Colette with a second item, evidently a white Hilton

hotel bathmat, that he took from a nearby green vinyl-upholstered chair; checking his

own wounds in the bathroom; and using the master bedroom and kitchen telephones to

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request help from medics and military police. Finally, MacDonald lost consciousness

once again, ending up on the master bedroom floor with Colette.

MacDonald subsequently identified the alleged female intruder as a young local

drug user named Helena Stoeckley who had emerged as a suspect due to, inter alia, the

blond wig and floppy hat she was known to wear. Under the government’s theory,

however, MacDonald concocted the attack by intruders and staged the crime scene to

conceal that he was the perpetrator. At trial, the government sought to prove that

MacDonald proffered a false exculpatory statement — a bogus and convoluted story —

evidencing consciousness of guilt. The prosecutors relied on physical evidence tending

to implicate MacDonald in the murders, as well as a dearth of evidence substantiating

MacDonald’s account of any homicidal home invaders, including Stoeckley.

1.

The government’s trial evidence reflected that MacDonald summoned help by

telephone at approximately 3:45 a.m. on February 17, 1970. The military police officers

dispatched to the MacDonalds’ apartment found an apparently unconscious MacDonald

next to and partly covering his wife Colette’s lifeless and bloodied body on the master

bedroom floor. The similarly lifeless and bloodied bodies of daughters Kimberly and

Kristen were on their beds in their bedrooms. Kristen had been stabbed more than thirty

times, and Colette and Kimberly had been both clubbed and stabbed repeatedly.

MacDonald also had multiple wounds, but just the single laceration of any significance,

in his right chest. He was hospitalized for a resulting pneumothorax, or partially

collapsed lung.

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a.

As described by the first responders, it had been a cold, rainy, windy night, and

there had been little activity on Fort Bragg. When the military police officers arrived at

the MacDonalds’ ground-level apartment, the front door was locked, but an officer was

able to enter the apartment’s utility room through a pair of rear exterior doors — a closed

but unlocked screen door and a wood door that was wide open. In the master bedroom

adjacent to the utility room, the officers spotted MacDonald lying with Colette’s body on

the floor. During an immediate search of the remainder of the apartment, the officers saw

the bodies of Kimberly and Kristen on their beds.

When found by the military police officers, MacDonald was clad only in blue

pajama pants. The officers initially thought MacDonald was dead, but then saw him stir

and gave him mouth-to-mouth resuscitation. A struggle occurred as MacDonald

attempted to get up and the officers restrained him. MacDonald sought information about

the well-being of his wife and daughters. He also told the officers that he had been

stabbed and that four intruders had come into the apartment. According to the officers,

MacDonald indicated that the intruders were drug-crazed “hippies” and generally

described the three men and blond-haired woman in the floppy hat. Medics and officers

soon removed MacDonald from the apartment and transported him by ambulance to Fort

Bragg’s Womack Army Hospital.

Around that same time, special agents and other investigators with the Army’s

Criminal Investigation Division (the “CID”) arrived at the apartment and began

processing the crime scene. Among other investigatory activities, the CID team

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confirmed the deaths of Colette, Kimberly, and Kristen; drew outlines of their bodies;

removed the bodies from the apartment for autopsies; and took a multitude of

photographs, both with and without the bodies present. The investigators also collected

potential physical evidence, including four suspected murder weapons, a variety of

bloodstained household items, blood scrapings from immovable objects, and numerous

hairs, fibers, and latent palm and fingerprints.

One of the suspected murder weapons seized by the CID team was a Geneva

Forge-brand paring knife with a bent blade that had been found on the master bedroom

floor. Others were an Old Hickory-brand paring knife and an ice pick discovered outside

the rear entrance to the apartment under a large bush. The last suspected murder weapon

was a virtually rectangular piece of lumber, approximately three feet long and just less

than two inches wide and two inches deep, located on the ground near the bush. Little or

no blood was visible on either knife or the ice pick, but blood was evident on the piece of

lumber. Additionally, the piece of lumber bore various fibers — including two purple

sewing threads — as well as some dried white- and cream-colored paint. Concerned

about the bloodstained piece of lumber’s exposure to continuing rain, a CID agent

marked its location on the ground, placed it in a clean cardboard box, and, without reentering the apartment, took it to his police car and secured it in the trunk.

As observed by the CID, lumber had been used on projects within the apartment,

including homemade closet shelves. There were scrap pieces of lumber inside the

apartment, in the utility room, and outside the rear entrance to the apartment, in an open

well and in a locked storage shed. Both a piece of lumber and a pair of used latex

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surgeon’s gloves in the storage shed were stained with dried paint that looked like the

paint on the bloodstained piece of lumber. Similar paint covered the headboard and

footboard of Kimberly’s bed and a wood slat supporting that bed.

In the master bedroom, the CID team documented that Colette’s body was lying

on a shag area rug that covered much of the wood floor. Her head was close to, but not

touching, the green vinyl-upholstered chair. Colette was clothed in pink two-piece

pajamas. There were thirty puncture holes and eighteen cuts in her pajama top, and no

puncture holes or cuts in her pajama pants. Blood was all over the pink pajamas,

including heavy stains below the knees of the pants.

The pullover-style top matching MacDonald’s blue pajama pants was covering

Colette’s chest, and the white Hilton hotel bathmat was over her abdomen. Both the blue

pajama top and the bathmat were bloodstained. The blue pajama top was haphazardly

folded, with its right arm ee and almost completely atop Colette. The exception

was the blue pajama top’s left arm, which trailed out over the floor. There were fortyeight puncture holes in the blue pajama top, along with two cuts. The blue pajama top

also had a tear down its front panel from its V-neck and additional tears at seams in its

left side, left shoulder, and left sleeve and cuff. A bloodstained pocket that apparently

had been detached from the blue pajama top was resting on a bloodstained throw rug near

Colette’s feet.

The word “PIG” was written in blood, in capital letters that were each about eight

inches tall, on the headboard of the master bed. The bed’s bottom sheet had a large urine

stain on one side and was partially loose from the mattress. The top sheet and bedspread,

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both bloodstained, were in a pile on the master bedroom floor near the door to the

hallway. Blood was spattered on the walls, ceiling, and some fixtures of the master

bedroom, such as radiators. There was also blood on various portions of that room’s area

rug, including under and around Colette’s body. The master bedroom telephone’s

handset was off the hook and hanging by its cord over the side of the dresser holding the

telephone’s base.

The CID team found wood splinters throughout the master bedroom. For

example, one splinter, approximately three inches long, was in a blood clot beneath

Colette’s head. Another splinter of similar length was near the largest bloodstain in the

master bedroom’s area rug. Splinters were on the portion of the area rug within the

outline drawn by investigators of Colette’s trunk and limbs, as well as the portion of the

area rug adjacent to Colette’s left hand and arm. A splinter was among debris collected

from Colette’s hands, which also included loose hairs and various fibers.

Additionally, the CID team’s search of the master bedroom yielded sixty purple

sewing threads — similar in appearance to the threads stuck to the bloodstained piece of

lumber found outside the apartment — plus seventeen blue fabric yarns and a single blueblack sewing thread. In many places where there were splinters, there were also threads

and yarns. Three of the purple threads were with the splinter in the blood clot beneath

Colette’s head, and three more purple threads were with the splinter near the largest

bloodstain in the area rug. Fifteen purple threads and one blue yarn were on the portion

of the area rug within the outline of Colette’s trunk and limbs, largely in the area that had

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been below her buttocks. Twelve purple threads and the single blue-black thread were on

the portion of the area rug adjacent to Colette’s left hand and arm.

The locations of the other threads and yarns collected from the master bedroom

included the following: one of Colette’s forearms (two blue yarns); the throw rug near

Colette’s feet (three purple threads and four blue yarns); the bottom sheet and a

pillowcase on the master bed (nineteen purple threads and nine blue yarns); the portion of

the area rug near a corner of the master bed’s footboard (two purple threads); the floor

between the wall and the master bed’s headboard, in the area where “PIG” was written on

the headboard in blood (one purple thread); and the bedspread in the pile of bedding on

the floor (two purple threads and one blue yarn). The CID team retrieved a bloodstained

hair twisted around one of the purple threads from the bedspread, as well as two hairs

from the bottom sheet on the master bed.

In the top sheet in the pile of bedding on the master bedroom floor, there was a

bloodstained piece of latex that appeared to be a finger section of a glove. There was

another bloodstained piece of latex on the area rug near Colette’s left elbow. Additional

pieces of latex were also found within the master bedroom.

Elsewhere in the apartment, Kimberly’s body was tucked into the bed in her

bedroom, with the covers pulled up to her chest area. She was clothed in a bloodstained

nightgown that had no puncture holes or cuts. Kimberly was lying with the right side of

her head exposed and the left side of her head against a pillow. The CID team collected

fourteen purple sewing threads and five blue fabric yarns from Kimberly’s bed, including

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several that were found beneath the covers once they were pulled back. There also were

splinters on the bed and bloodstains and spatter on the nearby wall.

Across the hallway, Kristen’s body was on the bed in her bedroom, with the

covers pulled up to her waist. Kristen was wearing two-piece pajamas and an undershirt,

all bloodstained. Nine cuts and eleven puncture holes were in her undershirt; twenty-five

cuts but no puncture holes were in her pajama top; and no cuts or puncture holes were in

her pajama pants. Among the debris collected by the investigators from Kristen’s bed

were one purple sewing thread and one blue fabric yarn found on the bedspread, and

several splinters discovered on the bottom sheet. There were bloodstains throughout

Kristen’s bedding, including a large soaking stain on her top sheet. There was blood

spatter on the wall above the bed, and a large pool of blood with other smaller

bloodstains on the wood floor next to the bed. A bloodstained and broken acrylic hair tie

was nearby on a bloodstained throw rug. On the wood floor at the entrance to the

hallway, there were two footprints made in blood — one of a bare left foot and the other

of a bare right foot — positioned as if their maker had been exiting Kristen’s bedroom.

There was blood throughout the portion of the hallway between the bedrooms and

the family’s shared bathroom, including a large bloodstain on a rug covering the wood

hallway floor just outside the master bedroom. In the bathroom, in and around the sink,

there were blood drops, other bloodstains, and hairs, some bloodstained. There were also

bloodstains on a stepladder and a wicker stool. A mirror was hanging on the wall above

the bathroom sink. On the pair of sliding doors to the linen closet adjacent to the

bathroom, three small stripes of blood were located about six feet above the floor at the

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doors’ juncture. The linen closet held a large quantity of medical supplies, including

disposable scalpel blades and a variety of prescription drugs and other medications.

At the other end of the hallway — in the area where MacDonald said he awoke

after battling intruders in the living room and being knocked unconscious — there was a

single bloodstain. That bloodstain was on the wood hallway floor just before the step

between the hallway (on the upper side) and the living room (on the lower side). Several

blue fibers or threads, clustered in a bunch or ball, were on the hallway floor in the

vicinity of the bloodstain.

In the living room, the rectangular coffee table that sat in front of the couch was

overturned and resting on the long side that had been farthest from the couch. On the

living room floor beneath that side of the coffee table was the March 1970 issue of

Esquire magazine, covered by a boxed children’s game. There was a finger-size smear of

blood above the “gq” and “wu” in “Esquire” on the magazine’s cover page, which featured

the then-recent murders committed in California by Charles Manson and his followers.

Additional items on the living room floor included an overturned flower pot and

MacDonald’s eyeglasses, which had a pink fiber caught in a hinge and a small spot of

blood on one lens. The only other suspected bloodstains in the living room were three

stains on the wall above the couch. The CID team searched the living room and its area

tug for splinters and for fibers considered to be of evidentiary value, including purple and

blue-black sewing threads and blue fabric yarns like those found in the bedrooms and on

the bloodstained piece of lumber. The investigators’ search of the living room, however,

yielded no such fibers and no splinters.

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There were two rooms off the living room, i.e., the dining room and the separate

kitchen. Nothing seemed to be askew in the dining room, where several Valentine’s Day

cards were on display atop a buffet. In the kitchen, however, drops of blood were on the

floor in front of the sink. The cabinet beneath the sink held a box of Perry-brand latex

surgeon’s gloves, and the underside of the sink within that cabinet was bloodstained.

There were also a pair of latex surgeon’s gloves and a pair of yellow dish-washing gloves

sitting beside the sink. The handset of the kitchen telephone was off the hook.

Despite the CID team’s search for evidence consistent with MacDonald’s account

of murderous intruders, the investigators did not find anything matching MacDonald’s

description of the baseball-bat-like club used to attack him. There were no signs of

forced entry into the apartment or of the premises being rummaged for items to steal.

Indeed, many items that likely would have been irresistible to drug-abusing burglars —

such as jewelry, silver serving pieces, a rifle, and the prescription drugs and other

medications — were within easy view and unstolen. Although it was susceptible to

footprints, a sandy strip of soil that ran between a paved walkway and the apartment’s

exterior contained no footprints, including around the rear entrance into the utility room.

The only wet spots and grass on the floors inside the apartment were attributed to the first

responders.

Nevertheless, the CID team did collect three samples of dried wax from the

apartment — found on the coffee table in the living room, a chair in Kimberly’s

bedroom, and Kimberly’s bedspread — that might corroborate the presence of the female

intruder described by MacDonald as perhaps carrying a candle. The investigators took

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fourteen candles from the apartment for comparison to the wax samples. They also

recorded dozens of latent palm and fingerprints.

Most of the physical evidence amassed from the crime scene was examined at two

facilities, the CID laboratory at Fort Gordon in Georgia and the FBI laboratory in

Washington, D.C. The autopsies of Colette, Kimberly, and Kristen were performed

locally at Womack Army Hospital. Their clothing was removed prior to the autopsies,

and loose hairs, fibers, and other debris were collected from their bodies, all to be

examined with the other physical evidence.

b.

According to the trial evidence of the Womack Army Hospital pathologist who

conducted Colette’s autopsy, his examination revealed that Colette suffered numerous

blunt force injuries — that is, clubbing wounds — mainly to her head, arms, and hands.

Multiple blows to Colette’s head resulted in five separate ragged tears in the skin on her

forehead and scalp. Some of those lacerations were four or five inches long, and the skin

was gaping, so that Colette’s skull was easy to see. There was extensive bruising and

hemorrhaging in the soft tissue surrounding the lacerations, and there were additional

bruises across Colette’s chin and in her right temple area. Colette’s skull was fractured,

and her brain was somewhat damaged. The head wounds were consistent with a direct

frontal assault by someone wielding the bloodstained piece of lumber found on the

ground outside the MacDonalds’ apartment. Colette also had a sharp-angled pattern

bruise on her chest consistent with the same piece of lumber.

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The pathologist determined that blunt force injuries to Colette’s arms and hands

appeared to be defensive wounds, incurred while she attempted to fend off blows to other

parts of her body. Both bones in her right arm were broken, a bone in her left arm was

broken in two places, and the skin of each arm was lacerated, scraped, and bruised. In

addition to blunt force injuries, there was a stab wound on Colette’s left hand that likely

was made by a sharp instrument.

Colette’s autopsy revealed that she sustained additional, more significant stab

wounds in her neck and chest — wounds that were consistent with a knife. There were

nine knife-like wounds in Colette’s neck, going through the skin and into soft tissue.

Colette’s trachea was penetrated in two places, and her thyroid was lacerated twice.

There were seven knife-like wounds in Colette’s chest, going through the skin and chest

wall into the chest cavity. Both of Colette’s lungs and her pulmonary artery were

lacerated, and the chest wounds caused substantial bleeding. Each of the chest wounds

was fairly perpendicular, indicating that a knife blade went straight into Colette, at about

a ninety-degree angle to her body, while she was lying flat on the floor. Only one chest

wound was indicative of a twisting knife; each of the other knife-like wounds was

apparently made by a knife going straight in and coming straight out.

The pathologist and an FBI laboratory analyst deemed Colette’s knife-like

wounds, as well as the cuts in the pink pajama top that Colette was wearing, to be

consistent with the Old Hickory knife found under a bush outside the apartment. Tests

performed by the laboratory analyst showed that the Old Hickory knife’s blade, being

sharp, produced “clean” cuts in fabric like those in Colette’s pink pajama top. The

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laboratory analyst also tested the Geneva Forge knife found on the master bedroom floor;

he observed that the bent blade of that knife was dull and thus produced “tearing” cuts

inconsistent with the pink pajama top’s clean cuts.

Further autopsy findings were that Colette had twenty-one puncture wounds in the

front area of her chest and three-puncture wounds in her upper left arm, each consistent

with an ice pick such as that found with the Old Hickory knife. Many of the ice-pick-like

wounds were superficial, and the five or so that passed through the chest wall did not

appear to involve serious damage to any organ. Like the knife-like wounds, the ice-picklike wounds were perpendicular and thus likely inflicted upon Colette while she was

lying flat on the floor. Furthermore, the ice-pick-like wounds were symmetrical, without

any tearing, suggesting that Colette’s body was motionless when the wounds were made

— a conclusion corroborated by the cleanness of the puncture holes in Colette’s pink

pajama top.

The pathologist did not attribute Colette’s death to her ice-pick-like wounds or to

her extensive blunt force injuries. He explained that those injuries were survivable,

though clubbing wounds to the center of Colette’s head and to her chin may have

rendered her unconscious. In the pathologist’s view, Colette bled to death from some of

her knife-like wounds, specifically those in her chest.

Another Womack Army Hospital pathologist performed the autopsies of five-yearold Kimberly and two-year-old Kristen. According to that pathologist’s trial evidence,

Kimberly’s autopsy revealed that she sustained two major clubbing wounds — one to

each side of her head — consistent with the bloodstained piece of lumber. Those blunt

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force injuries involved external bruising and abrasions, the fracture of Kimberly’s nose,

and the protrusion of a small portion of bone through the left side of her face. The more

extensive external bruising occurred on the right side of Kimberly’s head, across her right

cheekbone and ear. Beneath those bruises, the right side of Kimberly’s skull was

fractured. There were additional fractures at the base of her skull and associated bruising

of her brain. Kimberly also had eight to ten stab wounds in the right front side of her

neck that caused some bleeding and transected her windpipe. Those wounds were

consistent with the Old Hickory knife and made at close to a ninety-degree angle.

The pathologist opined that Kimberly’s clubbing wounds occurred first and that

the associated brain injury was the most prominent factor in her death. The brain injury

may have killed Kimberly immediately; if not, it likely left her near death and

unconscious. According to the pathologist, the knife-like wounds were only then

inflicted upon Kimberly and could have contributed to her demise.

The pathologist’s separate examination of Kristen showed that she had seventeen

gaping stab wounds — four in the center of her chest, one in her neck, two above one of

her shoulder blades, and ten in the middle of her back — apparently made by a knife at

about a ninety-degree angle. Related to those knife-like wounds, Kristen’s thyroid gland

and windpipe were lacerated, and her heart was penetrated four times, twice from the

front and twice from the back. The pathologist and the FBI laboratory analyst

determined that the knife-like-wounds and the clean cuts in Kristen’s pajama top and

undershirt were consistent with the Old Hickory knife.

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There were several additional cuts on Kristen’s hands and fingers, including a

deep and significant cut to the ring finger of her right hand, that appeared to be defensive

wounds or wounds inflicted ancillary to more serious injuries. Kristen also had multiple

puncture wounds, including five in the center of her chest that penetrated deeply and ten

in an “S” pattern on the right side of her chest that were mostly superficial. In the view

of the pathologist and the laboratory analyst, the puncture wounds and the puncture holes

in Kristen’s undershirt were consistent with an ice pick. The absence of puncture holes in

Kristen’s pajama top indicated that her assailant lifted the pajama top before inflicting the

ice-pick-like wounds. Ultimately, the pathologist concluded that Kristen died from the

knife-like wounds to her heart, which caused a critical loss of blood and may also have

stopped the heart from beating.

Cc.

The trial evidence established that, while the autopsies of Colette, Kimberly, and

Kristen were being performed, MacDonald was being treated at Womack Army Hospital.

He had arrived at the emergency room still wearing his blue pajama pants and with blood

smeared on his face and hands. The clinical technician who first examined MacDonald

noted his vital signs were stable and just one of his wounds — the laceration in his right

chest that resulted in the pneumothorax — required bandaging. MacDonald’s blue

pajama pants were removed for examination of his lower extremities and left on the floor

of the treatment area. During that period, the technician observed that the blue pajama

pants were bloodstained and torn. After the CID agents had visited the hospital without

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taking the blue pajama pants as evidence, the technician discarded the pajama pants by

throwing them into a garbage me,

A physician who examined MacDonald in the emergency room said that

MacDonald exhibited emotional distress and may have been delirious. In that regard, the

physician pointed to a statement MacDonald made acknowledging that he had found his

wife and daughters pulseless and lifeless, which was quickly followed by a contradictory

inquiry from MacDonald as to when his family would arrive at the hospital for treatment.

Otherwise, MacDonald seemed to have organized thought processes and to be alert as to

time and place.

MacDonald was hospitalized for about a week for treatment of his pneumothorax,

which involved two separate insertions of chest tubes. A surgeon concluded, based on

the smooth edges of the related laceration in MacDonald’s right chest, that the laceration

was made by a sharp instrument. According to MacDonald’s medical records and

hospital personnel who examined him, MacDonald also had a slightly raised contusion on

his left forehead with some abrasion of the skin, four punctate wounds in his left chest, a

laceration in his upper left abdomen through the fat layer to the rectus muscle, a shallow

cut in the skin on his left arm, and a superficial cut between two fingers of one hand. The

medical records and hospital personnel did not note or observe that MacDonald had any

other injuries, including any additional head wounds, any ice-pick-like wounds, or any

injuries to his back.

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d.

As explained at the trial, the continuing investigation conducted by CID and FBI

agents and laboratory analysts revealed that each member of the MacDonald family had a

different blood type in the ABO blood group system. Specifically, Colette had type A

blood, Kimberly had type AB, Kristen had type O, and MacDonald had type B. CID

laboratory analysts tested bloodstains and scrapings from the MacDonalds’ apartment to

determine blood type and thus the possible source of the blood among the four family

members. Notably, the laboratory analysts could not declare, for example, that any type

A blood collected from the apartment came from Colette, rather than from one of the

billions of other persons in the world with type A blood. The laboratory analysts could

state only that the type A blood was consistent with Colette.

In examining the suspected murder weapons, the CID laboratory analysts observed

that the Geneva Forge knife found on the master bedroom floor had just a small amount

of blood on it, on the tip of its bent blade. No blood was detected on the blades of the

Old Hickory knife and the ice pick found outside the apartment, but when the blades were

removed, small amounts of blood were discovered on the handles. The blood on the

Geneva Forge knife gave a weak indication of being type A, and the blood on the Old

Hickory knife was type A, consistent with Colette. The blood on the ice pick could not

be typed. The visibly bloodstained piece of lumber found on the ground outside the

apartment was coated in both type A and type AB blood, consistent with Colette and

Kimberly.

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Bloodstains on the white Hilton hotel bathmat that had been covering Colette’s

abdomen were also type A and type AB, consistent with Colette and Kimberly. The

same FBI laboratory analyst who examined Colette’s and Kristen’s clothing — and who

testified as a prosecution expert in hairs, fibers, and fabric damage, impressions, and

stains — examined the bathmat. He concluded that, given the configurations of two of

the bathmat’s bloodstains, they could have been made by the Old Hickory knife and the

ice pick, then wet with blood, being wiped clean on the bathmat.

Based on interviews with persons who had previously visited the apartment, the

investigators determined that the Geneva Forge knife, the Old Hickory knife, and the ice

pick could have belonged to the MacDonalds. Colette’s mother said that she had used an

ice pick that had been kept in the MacDonalds’ kitchen, and a former babysitter for the

MacDonalds later corroborated that the family owned an ice pick.

The investigators more confidently pinpointed the apartment as the source of the

bloodstained piece of lumber. Their conclusion stemmed from evidence that the

bloodstained piece of lumber had previously been split from a “two-by-four,” and that

another fragment of the same two-by-four was being used as the wood slat supporting

Kimberly’s bed. A CID laboratory analyst who testified as a prosecution expert in wood,

paint, and fibers confirmed the link between the bloodstained piece of lumber and the bed

slat by comparing, inter alia, their grain patterns and annual growth rings. He also

matched the dried paint on the bloodstained piece of lumber to the paint covering the bed

slat and Kimberly’s headboard and footboard, and to the paint on the paint-stained piece

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of lumber and latex surgeon’s gloves in the locked storage shed outside the rear entrance

to the apartment.

The CID laboratory analyst further observed that the splinter found near the largest

bloodstain in the master bedroom’s area rug — one of the splinters that was about three

inches in length — fit perfectly into the bloodstained piece of lumber. Moreover, the

laboratory analyst opined that the bloodstained piece of lumber could have been the

origin of additional splinters collected from the master bedroom, the bedrooms of

Kimberly and Kristen, and one of Colette’s hands, because the piece of lumber and the

splinters were similar in color, texture, and cell structure. Another laboratory analyst,

with the FBI, determined that some of the fibers on the bloodstained piece of lumber

were consistent with the throw rug in the master bedroom.

Other analyses showed that the two purple sewing threads on the bloodstained

piece of lumber were consistent with the puncture-hole-filled and torn blue pajama top

that MacDonald had laid over Colette. Specifically, the CID and FBI laboratory analysts

who both specialized in fibers concluded that the purple sewing threads on the

bloodstained piece of lumber matched threads used in most of the seams of MacDonald’s

blue pajama top. Likewise, the seventy-five purple sewing threads littered throughout the

bedrooms were consistent with the blue pajama top’s seam threads. There were also

some blue-black sewing threads used in the blue pajama top, in the cuffs of the sleeves;

those threads matched the single blue-black sewing thread in the master bedroom. The

twenty-three blue fabric yarns in the bedrooms were consistent with yarns used in the

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