The United States of America, by and through its attorney, the United States Attorney for the Eastern District of North Carolina, pursuant to Rule 29, Federal Rules of Appellate Procedure, respectfully files this Opposition to the motion of Amicus Curiae as captioned above, for the reasons which follow:

1. The case of United States v. Jeffrey R. MacDonald, (MacDonald), while certainly one which has resulted in massive media coverage, is, however, based on a unique set of disputed factual issues. It is extremely unlikely that cases based on similar fact patterns would arise, consequently, while legal issues of constitutional dimension are present, they are so inextricably fact bound, to MacDonald that by no means will a decision"... affect the rights of all persons accused of crimes ... throughout the United States." (Motion at 1).

2. It should be further noted that as a practical matter there are no significant disputes as to the legal issues involved, rather both the Brief of the Appellant, filed by privately retained counsel, and the Amicus Curiae Brief are almost totally devoted to scurrilous, and unfounded attacks on the district court's integrity in the fact finding process.^[1] It is submitted that the proper function of an Amicus brief is to explicate the legal issues, based upon facts which are not in dispute. It is further submitted that to be properly denominated an Amicus the attorney submitting the brief must be someone other than an attorney who formerly represented, if only in a subordinate role, the same defendant on charges growing out of the same episode.^[2] To permit the filing of this Amicus brief by a de facto attorney for the appellant is to invite the numerous former counsel for appellant to join in a free-for-all, the sole purpose of which is to further muddy the waters in a factually complex case.^[3]

3. Even in light of all the foregoing reasons the consideration of the Amicus Brief by the Court might have some merit if there was the slightest indication that the author had, even a minimal familiarity with the record below or the issues raised by the appellant. As will be demonstrated, infra, this is clearly not the case, and Mr. Eisman's primary motivation appears to be reinsert him name in a case which, as he puts it...has generated enormous amounts of public and media interest for the past years.

The appellant below contended, only that Judge Dupree should recuse himself from hearing the post-conviction motions by which he sought to set aside the conviction and to obtain a new trial. See, J.A. at pp. 36-87, 1601-17, 1853-60.

Further, at oral argument local defense counsel for the appellant, Mr. Wade M. Smith, Esquire who has apparently since withdrawn from the case, expressly stated that there was no retroactive application sought by the defense. (See, Transcript of Proceedings August 21, 1984).

Amicus on the other hand seeks a new trial, when the appropriate remedy if any, would be a remand for rehearing before a different Judge. He bases his claim on:

The willful, knowing and intentional nondisclosure of the relationship of the assigned trial judge to an attorney who had a large roll in pushing for the criminal prosecution of the defendant. (Amicus Brief at 5).

However, after making this outlandish claim, Mr. Eisman, contradicts himself in the next sentence. "Prior to the trial of this matter, it was a matter of public record, documented by news media reports, that Jimmie C. Proctor played an active role on behalf of the government in this case, (id.). Since it was common knowledge that Proctor, who, in any event, had left the U.S. Attorney's Office in 1971 and divorced the Judge's daughter four years before the case was assigned to Judge Dupree upon indictment, had pushed unsuccessfully for prosecution in 1970, neither the Judge nor the government can logically be accused of suppressing this fact. Rather the gist of the Amicus contention is that Judge Dupree failed to disclose that former Assistant United States Attorney Jimmie Proctor had once been his son-in-law.

Apparently Mr. Eisman has not familiarized himself sufficiently with the record below to know that it is uncontested that Jimmie C. Proctor and his then wife, Elizabeth Rosalyn Dupree Proctor, would meet trial defense counsel Wade M. Smith at various social occasions during the period of his employment as an Assistant United States Attorney. JA 484-488. Therefore, it follows that it was common knowledge as to Proctor's albeit limited public role in the Army phase of this case, and as defense counsel Wade M. Smith, prior to trial had personal knowledge of Proctor's former marriage to Judge Dupree's daughter.^[4] This issue was not raised before trial for obvious tactical reasons.

Further the Amicus Brief is riddled with references to matters never raised before the district court such as newspaper articles (See Addendum A), books (Br. at 9) and self-authored publications (Philadelphia Bar Association Quarterly, The Shingle, Vol. 48, No. 1, Eisman, Shattered Vision: [Was Doctor MacDonald Framed?].^[5]

The issue of the trial Judge's exclusion of psychiatric testimony to the effect that the defendant's version of the events of the crime was true, was previously decided against appellant by this court on direct appeal. See, United States v. MacDonald, 688 F.2d 224, 227-228, (1982). Both Amicus and Appellant have resurrected this matter in its present form as a contention that the court ordered examination of the defendant by Dr. James C. Brussel a government psychiatrist, as a possible rebuttal witness, was a subterfuge to gain advance warning of the defendant's answers to cross-examination questions.

It should be noted that while the basis of appellant's claim of prosecutorial misconduct is the same as that raised below, namely, the examination by Dr. Brussel, both appellant and Amicus have raised a claim of alleged prejudice flowing from the interview which was never before the district court, and consequently is outside the proper scope of review. In his pleadings, and at oral argument Appellant's only claim of prejudice, albeit meritless, was the alleged advanced warning gained of defendant's responses to cross-examination. (J.A. pp. 398-442; Tr. Oral Argument Jan. 14, 1985 at pp. 192-230).

However for the first time, on this appeal Appellant has claimed that:

"Brussel's report was furnished to the court in camera. Largely on the basis of Brussel's examination the court excluded the testimony of defense psychiatric experts because 'we had shaped up a battle of the expert's, which could confused rather than assist the jury.'" United States v. MacDonald, 485 F.Supp. 1087, 1094-97 at 1099 (E.D.N.C. 1979), aff'd 688 F.2d at 227-228. (Br. at 44).^[6]

The Amicus Brief only seeks to compound the confusion which appellant has disingenuously sought to create by stating, without any citation of authority that:

...while Brussel prepared no written report...{w}hatever Brussel told Judge Dupree in camera concerning his "examination", it is clear that Judge Dupree was never told of the real role of Brussel. However, based upon what Brussel did say privately Judge Dupree excluded psychiatric testimony for this defendant. (Amicus Br. at 11).

Judge Dupree never saw or spoke with any witness in camera or out of it, and this absurd allegation has been fabricated by Mr. Eisman out of whole cloth, and fully illustrates his total unsuitability to act as Amicus Curiae to this court.

Suffice it to say that the Amicus rendition of the facts is at sharp variance with the district court's findings of fact which the government incorporates by reference. (J.A. at pp. 1908-1926.)

The Amicus Curiae Brief argues that the government suppressed, and the district court sanctioned the suppression of five pieces of exculpatory physical evidence, as well as the existence of police witnesses who would have bolstered Helena Stoeckley's reliability as a police informant.

Only two of these issues merit attention at this time.^[7] However the Amicus Brief also raises the issue of the seven fingerprint negatives which were destroyed before trial as other evidence of suppression by the government. (id. at p. 15). The Appellant claims in his brief that:

"Seven fingerprints [were] taken from the hallway in the MacDonald residence which could have been used to establish the presence of intruders. The Government mischaracterized what had happened to the fingerprints to hide the fact that they had been intentionally destroyed. )J.A. pp. 312-313) (Emphasis supplies).

As the opinion of Judge Dupree reflects at footnote^[8], the defense withdrew the allegation of suppression regarding the lost negatives of the seven fingerprints:

In his motion and later filings in support of the motion, MacDonald also argued that the government (1) opinions of CID investigative agents that footprint evidence linking MacDonald to the crimes was unreliable; (2) information that Cathy Perry Williams had committed several stabbings in the Fayetteville area about the time of the MacDonald murders; (3) negatives of seven photographs of unidentified fingerprints taken from the MacDonald home; and lost (4) MacDonald's pajama bottoms. During final argument on the post-trial motion, counsel for MacDonald in referring to the evidence underlying this motion stated that: "Upon reflection, we think that we were wrong about about two or three of them ... and this morning we will want to abandon our motion as to a couple of them. But on about four of them we still believe with all our strength [they] ... would've made a real difference in the case." Transcript of Final Argument at 19-20, January 14, 1985. The court concludes from this statement that MacDonald has abandoned his claim of suppression with respect to any evidence other than the bloody half filled syringe, bloody clothes and boots, missing piece of skin, and photographs of the letter "G". (J.A. 1927)

Because this issue was therefore never ruled upon by the district court some factual response to the allegations of Amicus is in order.

Under the Freedom of Information Act appellant's new counsel obtained a memorandum of a phone conversation which occurred on October 4, 1974, between a "Mr. Hamm" of the CID Laboratory and fingerprint examiner Hilyard Medlin. Mr. Medlin had been called in order to determine the location of the first series of negatives of seven latent fingerprints for possible enhancement during the Grand Jury's investigation. The record of the phone conversation (Defendant's Exhibit M) contains the following notation: "Medlin believes the first negatives of these seven areas were destroyed because they kept getting mixed up with the other negatives." (See J.A. at 391-392). The appellant claimed that the prosecution suppressed the destruction of the negatives, which in turn prevented effective cross-examination of Mr. Medlin at trial. J.A. at 312-313.

As reflected in the testimony of Hilyard Medlin at the Article 32 Investigation numerous latent fingerprints were developed at the crime scene, covered with transparent tape, and the photographed in situ. (Art. 32 Tr. at 509). Upon developing the photographs of these latent areas, many of the images were blurry due to movement of the camera during the photographic process. Subsequently the photographer returned to the crime scene to re-photograph the latent areas, at which time it was discovered that atmospheric conditions had destroyed seven of the latent areas which had been covered with transparent tape. When the second batch of photographs was developed, and comparisons made with the record fingerprints of known visitors to the residence, there remained twenty-three unidentified latent areas in addition to the seven "lost" areas. (Art. 32 Tr. at 527). The record is clear that as far back as 1970 the defense was informed of the presence of unidentified latent fingerprints of comparable value as well as the "loss" of the seven latent areas. (See, Art. 32 Hr. at 518-521).

During the Grand Jury's investigation the government, in an attempt to eliminate the unidentified latent fingerprints, sought to enhance, or sharpen the photographic images to facilitate comparison with known fingerprints. As described above, the government learned that the negatives of the seven "lost" fingerprints from the first series of photographs had been discarded.^[8]

As reflected in the Report of the Identification Division of the FBI, furnished to the defense prior to trial, specimens consisting of 290 negatives and 312 photographs of latent prints were delivered to the FBI on November 27, 1974 for reexamination.^[9]

As trial approached the appellant's experts were afforded ample opportunity by the Court to examine the physical evidence, including the fingerprint materials. As in so many other areas in which the defense vigorously sought discovery, in the case of the fingerprints they did not avail themselves of the opportunity to review these materials.

At trial Hilyard Medlin testified on direct examination to the existence of the unidentified comparable latent prints. as well as to the "loss" of the seven latent areas. (See, Tr. 3116-3119.) Mr. Medlin's competency as a crime scene processor was vigorously attacked on cross examination. (See, Tr. 3142-3228, 3234-3235). The defense offered the opinion testimony of Professor James Osterberg, that the crime scene was grossly under processed for latent fingerprints (Tr. 4964-65). On final argument defense counsel urged the jury to find that the unidentified fingerprints proved the presence of intruders.

It is submitted that the discarding of the negatives, which did not depict latent images of comparable value, was merely cumulative to the destruction of the latent areas in situ as the result of atmospheric conditions. For whatever it was worth, the jury was fully aware that fingerprints had been lost in processing and that there were dozens of unidentified comparable prints found at the crime scene.

The Amicus Brief's contention that the government suppressed the discarding of the worthless negatives, a contention withdrawn by appellant, at final argument, supra, p. 8, merely compounds the confusion created by appellant now claiming that he never knew about the fingerprints which were lost in situ, and further that the government purposefully destroyed the seven fingerprints taken from the hallway. A contention never raised before the district court and one which is totally contradicted by the record, supra.

The Amicus Brief (at 15) further goes outside the record by claiming, as does the appellant, (Brief at 14) that the government suppressed the existence prior to trial of police officers would have testified to Stoeckley's value as a police informant. Not only was this issue not raised in the district court, but it is patently absurd. This is so, we submit, since the defense, having previously been provided Stoeckley statements to Prince Beasley of the Fayetteville, North Carolina Police Department and James Gaddis of the Nashville, Tennessee Police Department, called both of these "Stoeckley witnesses" at trial. Gaddis testified to her status as an informant on internal affairs cases. Tr. 5705. Beasley testified before the jury that Stoeckley's reliability was such that: "If she told me, I knew it was true, because everything she told me was." (Tr 5834). The fact that Stoeckley ... "had been a reliable drug informant for several years prior to the murders" was also noted by the late Senior Circuit Judge Albert V. Bryan in his opinion affirming appellants conviction.

Obviously Amicus counsel doesn't know what he is talking about, regarding the evidentiary hearing, which was held on September 19 and 20, 1984, before the district court at Raleigh, North Carolina. See, J.A. Volume VII.

For all the following reasons the United States of America respectfully submits that the Motion For Leave to File Brief of Amicus Curiae National Association of Criminal Defense Lawyers be denied. In the alternative, should the Court grant the motion of Amicus Curiae the United States of America respectfully seeks leave of Court to exceed the current page limitation in its brief by an amount equal to that contained in the Amicus Curiae Brief.


Respectfully submitted

United States Attorney
Samuel T. Currin

By: Brian M. Murtagh
Special Assistant to the United
States Attorney for the Eastern
District of North Carolina

I HEREBY CERTIFY that on this 14th day of June, 1985, copies of the Government's Opposition To Move For Leave To File Brief for Amicus Curiae National Association of Criminal Defense Lawyers was mailed to counsel who addresses appear below:

Brian O'Neill, Esquire
Mynra K. Greenberg, Esquire

Brian O'Neill Professional Corporation
1137 Second Street
Suite 106
Santa Monica, CA 90403

Efriam Margolin, Esquire
Chairman, Amicus Curiae Committee
National Association of Criminal Defense Lawyers
240 Stockton Street
San Francisco, CA 94108

Dennis H. Eisman, Esquire
Suite 1420
42 South Fifteenth Street
Philadelphia, PA 19102

By: Brian M. Murtagh
Special Assistant to the United
States Attorney for the Eastern
District of North Carolina