Asymmetrical Information - Megan McArdle

Does Jeffrey MacDonald Belong in Jail?

The prosecutors are certain. But then, they always are--even when they're very wrong.

01.03.13 4:10 PM ET

Lawyers for Army doctor Jeffrey McDonald, who is shown in this March 1, 1995 photo at the federal correctional institution in Sheridan, Ore., are hoping that DNA technology is not available during his trial will help him regain his freedom.  MacDonald, 55, is serving three life sentences at a federal prison in Sheridan, Ore., for killing his pregnant wife, Colette, and daughters Kimberly and Kristen on Feb. 17, 1970. MacDonald has said a band of drug-crazed hippies attacked his family at their Fort Bragg, N.C. home, chanting "Acid is groovy. Kill the pigs." (AP Photo/Shane Young)

Shane Young/AP

A photograph of Jeffrey McDonald shown at the federal correctional institution in Sheridan, Oregon in 1995.

David Post enthusiastically links Gene Weingarten's article about the Jeffrey MacDonald case, in which he argues persuasively that MacDonald is guilty.  For those who have not been following along at home, MacDonald is a former Green Beret doctor whose wife and children were murdered in 1970 on a military base. MacDonald was found with a non-fatal injury (collapsed lung).  In 1979, he was finally convicted of the crime and sentenced to prison, where he still resides today.  MacDonald still maintains that his family was killed by a trio of hippies who said things like "Acid is groovy.  Kill the pigs."  

I say that Weingarten argues persuasively.  And it's true: Weingarten is a great writer.  I'm not exaggerating when I say that I might be willing to sacrifice minor body parts to write as well as he does.  Nonetheless, unlike David Post, I am not persuaded.  

The case has been the subject of four books.  Fatal Vision, a bestseller by Joe McGinniss, was the first; McGinniss followed MacDonald through the trial and ended up concluding that he was guilty.  Janet Malcom's The Journalist and the Murderer explored the relationship between MacDonald and McGinniss, rather than the crime itself, and concludes that it was morally uncomfortable at best: McGinniss was clearly deceiving MacDonald about what he was planning to write long after he'd decided that MacDonald was guilty.  Fatal Justice, published by Jerry Allen Potter in the mid-1990s, reinvestigated the case and concluded that MacDonald was probably innocent, and at the very least, had been railroaded.  And the latest contribution, just published, is A Wilderness of Error by Errol Morris, who comes to the same conclusion as Potter.

I first read Fatal Vision when I was 11, having filched it from my parents' bookshelves.  I re-read it several times, the last when I was in college, and then lost the falling-apart copy.  Like everyone else who read McGinniss's account, I believed that MacDonald was guilty.  Then sometime after I graduated from business school, I came across the Potter book.  For the first time I learned the extent of the games the prosecutors played with the evidence, the dubious forensic testimony, and the judge's virulent bias against the long-haired Jewish lawyer who MacDonald had unwisely imported from San Francisco.  This is also the subject of Morris' book.  And after reading both of them, what I concluded is that while Jeffrey MacDonald may have killed his wife and children, he should not be in jail.  

There were eyewitness accounts of someone who just happened to match the description that MacDonald gave of the assailants, and a woman resembling the description of one of the alleged attackers who confessed, then recanted.  That woman was a mentally unstable drug user who may or may not have been intimidated by the prosecution into recanting.

The crime scene was hopelessly mishandled by army investigators, to an extent that it's hard to know what evidence was actually where.  There was some evidence at the crime scene--such as candle wax and foreign hairs--that don't match anything in the house.  There was also some evidence that seemed to point to MacDonald, such as pajama fiber hairs under the body.  But the poor handling of the crime scene makes it difficult to be entirely confident that any of the evidence found wasn't introduced, or moved, by the inept early investigators.  

"Acid is groovy, kill the pigs," sounds less like the sort of thing that hippies would actually chant than like the sort of thing that a buttoned-down Green Beret doctor would think they'd chant.  On the other hand, intoxicated people do all sorts of weird stuff.  And it might also be his faulty recollection of whatever they actually did say: memory is more like storytelling than videotape.

The prosecution argued (correctly) that his lung collapse was caused by a small stab wound, while his family's injuries were incredibly more severe.  The defense argued (correctly) that it was probably easier to subdue a pregnant woman and two small children than a grown man who worked out regularly, and that it's actually pretty hard to safely collapse your own lung--even people whose lungs were collapsed for tuberculosis treatment by a doctor in a hospital setting used to occasionally die of it.

And on and on.  I don't have firm opinions about innocence or guilt.  But while it's certainly possible that he's guilty, after reading all these accounts, I also think there there's a powerful case that the prosecution met its burden of proof by playing games with the evidence disclosures, abetted by a judge who seems to have hated MacDonald's lawyer, and who, by the way, had a personal relationship with one of the prosecutors. The defense does not seem to have been properly informed of the potentially exculpatory evidence, such as strange fibers and lab bench notes that supported their case.  And all of the rulings that could go for the prosecution without being reversed on appeal did go that way.  Anyone who reads Weingarten's piece should also read this piece and this one, both by Evan Hughes, who has also spent some time reading about the case.  Hughes comes to roughly the conclusion that I have: MacDonald may have killed his wife, but it's not clear, and if he'd gotten a fairer trial, he probably wouldn't have been convicted.

Fatal Vision, which posits that MacDonald went into a homicidal rage unleashed by an excess of diet pills, tries to turn readers against MacDonald so thoroughly that they do not notice how much McGinniss relies on innuendo, omission, and unsupported inference. Vast portions of the book rest on a logical error that Weingarten also dabbles in: MacDonald is a creep. Ergo, he killed his entire family.

Jeffrey MacDonald seems to be a best somewhat weird and unpleasant, and at worst, a sociopath. He harmed his own defense in multiple ways.  But there's a reason that we give the accused the benefit of the doubt.  That reason is people like Michael Morton, who spent 25 years in jail for the murder of his wife, a crime he did not commit.  

How did this tragedy happen?  According to the Texas Monthly, it happened because the local cops and the prosecutor decided that he was guilty, and therefore decided to ignore--and suppress--the evidence that said he might not be.  

Why did they decide he was guilty?  Because there was no evidence of a break-in, because Morton's young son Eric was home (and unharmed) during the killing, because they had some dubious forensic evidence, and because Michael Morton didn't act like they thought a bereaved husband should act.  Also, they had a note from Morton expressing his dismay that his wife had gone to bed on his birthday without having sex with him--not much of a motive, but more than they could assign to anyone else.

What's more amazing is that their confidence infected other people who had evidence that Morton was innocent:   

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As he sifted through the papers, Michael felt “no anger, just bewilderment,” he told me. “By that time, I had been pummeled with so much, for so long, that I recall just staring at the pages, stunned.” For the first time in almost 25 years, he began to have a sense of clarity about what had happened. Michael carefully turned the pages and came across an eight-page transcript of a phone call that had taken place between Wood and Michael’s mother-in-law, Rita Kirkpatrick, less than two weeks after Christine’s murder. As he studied each typewritten word, Michael could feel his throat tightening. 

“Eric and I were alone at my house . . . , which was the first time he and I had been alone since his mother’s death,” Rita told Wood. “I was putting on makeup in the bathroom. Eric layed [sic] his blanket on the floor of my bedroom. He said, ‘Mommie is sleeping in the flowers.’ His dad had told him that last week at the cemetery. Then he kicked the blanket and said, ‘Mommie, get up.’ ”Rita explained to Wood that at Marylee’s suggestion she had written down everything her grandson had then said. She read her exchange with the boy back to the investigator:

Eric: Mommie’s crying. She’s—stop it. Go away.

Grandmother: Why is she crying?

Eric: ’Cause, the monster’s there.

Grandmother: What’s he doing?

Eric: He hit Mommie. He broke the bed.

Grandmother: Is Mommie still crying?

Eric: No, Mommie stopped. 

[Grandmother:] Then what happened? . . .

Eric: The monster throw a blue suitcase on the bed. He’s mad . . .

Was he big?


Did he have on gloves?

Yeah, red.

What did he carry in his red gloves?


What was in the basket?


The boy’s account perfectly matched the crime scene. Christine had been bludgeoned in her bed. Wood chips had been found in her hair, suggesting that she had been beaten with a log or a piece of lumber. A blue suitcase and a wicker basket had been stacked on top of her body. But it was the last part of Rita’s conversation with Eric that Michael found the most astonishing:

Where was Daddy, Eric? . . . Was Daddy there?

No. Mommie and Eric was there.  

Rita had then added, “So, Sgt. Wood, I’d get off the . . . domestic thing now and look for the monster and I have no more suspicions in my mind that Mike did it.” 

Just as Allison had suspected more than two decades earlier, there had been critical evidence in Wood’s reports—evidence that would have changed the outcome of Michael’s trial had the jury ever learned of it. But the transcript did not end there. Michael read along with disbelief as, over the course of the next six pages, Wood failed to ask a single pertinent question or inquire about a time when he could question Eric. Wood sought instead to convince Rita of a bizarre theory that the “big monster with the big mustache,” as she referred to the killer—a reference, presumably, to a description that Eric had given her—had actually been Michael wearing his scuba-diving gear.  

The prosecution team succeeded in persuading the Kirkpatrick family that Morton had done it, even though they had heard an eyewitness acount which said he hadn't.  His wife's sister ultimately adopted his son, and as you might imagine, succeeded in pretty thoroughly turning his son against him.  As a teenager, Eric stopped visiting, and finally changed his name to that of his adoptive parents.  

The government side also succeeded in concealing this evidence from Morton's defense team, for which they are now in big trouble.

The important thing to remember is that the investigator and prosecutors were not saying to themselves, "Hey, let's railroad an innocent man".  They believed Morton was guilty. Unlike in story books, cases are rarely perfectly clean--there's usually some evidence for the defense, some for the prosecution, particularly in cases that actually go to trial.  Prosecutors and investigators have to decide what to give a big weight, what to give a low weight.  And three year olds aren't the most reliable witnesses.  

But because of other evidence, we can now be pretty sure that they made a terrible mistake.  And it's mistake that a jury might well not have made, had they seen all the evidence. That's why we have these rules that the defense has to have the best possible chance to make its case.  It seems pretty clear that MacDonald didn't get that; instead he got the very bare minimum that a judge and the prosecution could do without being summarily reversed by the appellate court.  

That should bother you even if you think that the preponderance of the evidence says that MacDonald is guilty.  Because I don't think the case is clear enough to rule out the possibility that you, and Weingarten, and the prosecution team, might be making a terrible mistake.