Circa December 1994
Jeffrey MacDonald's thoughts re: the Jeffrey MacDonald vs. Joe McGinniss Civil Trial
(Spelling, punctuation and grammar preserved)
In quick review: the lawsuit I filed vs. McGinniss ("McG"), was filed in August, 1984, one year after the publication of the hardback book "Fatal Vision". August '84 was also the publication time for the soft cover version, and the Fall of 1984 was when "F.V." first aired on NBC. (The mini-series was scheduled to air in Spring of 1985, but NBC moved it up - hastily - to coincide with "sweeps month" of November 1984, which coincided with a court appearance for me in my appeal of the criminal case.
The actual civil trial itself only began on Tuesday, July 7, 1987, in Los Angeles Federal District Court. The pre-trial phase of civil trials is crucial as the "discovery" is very complete for both sides. We had spent three years productively reviewing Joe McG's letters to me, taking interrogatories (written questions, answered under oath), and taking depositions of McG and his then-agent, Sterling Lord.
Those pre-trial preparations, as well as tapes we acquired of McG: public appearances on his book tour, would become major building blocks of my case. (In a sentence, our major trial aim was to query McG under oath in depositions or on talk shows, etc.) I might add that, as you already know, the tactic worked to perfection.
McG's lies were vividly exposed when his trial answers - under oath - were compared and contrasted to his previous answers - some also under oath - in thirty-foot high blowups, projected on the courtroom wall.
[For instance, one very dramatic trial moment - one of the "Top Ten", so to speak - was when we had McG on the stand. My attorney, Gary Bostwick ("G.B."), had McG assure the trial jury that he - McG - had only made up his mind as to my innocence or guilt three long years after trial, after a soul searching time of intense investigation. G.B. immediately then, played for the jury a tape recording of McG in 1984, on a Los Angeles talk show, glibly telling the listeners he had "made up his mind the same time the jury did", that is, way back in 1979, and not 3 years later, as he had just stated. Hung on his own words, as it were. It was a startling moment in the trial - who was the liar was suddenly very clear - Joe McGinniss. To compound his problem, McG's answer, incredibly enough, almost too good for a movie, to hearing his own voice, was "I can't be sure that is my voice". Courtly, white-haired Judge Rea, who was gazing off into space smiling, jerked his head around, stared at McG, and said, "Surely you recognize your own voice!". A powerful moment, indeed, forever putting in the jury's mind, McG's lack of truthfulness.] Anyway...now I want to very briefly outline for you the course of the entire trial. That way, the psychiatric testimony can be viewed as having the affect it did have.
The trial began in the Federal Building in downtown Los Angeles. I was being held in the "hole", (i.e., solitary), at Terminal Island Prison in San Pedro. Each morning, around 3:30-4:00 a.m., I would be rousted out of my cell, to be put "on the chain" and brought to the Federal building about an hour away by prison bus. Each morning, sometimes fog, sometimes a beautiful sunrise - I would be on the freeway, in this prison bus, with wire bars and mesh welded over the windows, with armed guards, the bus filled with prisoners going to court. I had handcuffs, leg irons and a belly chain on, and large teams of U.S. Marshals with shotguns guarded us as we entered or left the bus. A "gun" truck (i.e., van or pickup with additional armed U.S. Marshals), preceded and followed us to/from court to deter hijackings. Each morning I would be allowed to change to regular clothes for court by Judge Rea's court order.
While in court, a U.S. Marshal in a suit and tie (but armed) sat unobtrusively behind me. On court breaks or during lunch, I was kept in the holding tank in the Federal Building with about forty other court bound prisoners.
McG stayed at a downtown hotel, with his attorneys, family, entourage, witnesses - and they arrived in the courtroom each day at 9:00 a.m., often with reporters and/or "groupies", (i.e., students or court-watchers), in tow. I was often the first person into the courtroom with my U.S. Marshal guard, and we watched the others arrive, fill the place up, and begin the day. The "constants" with McG were Fred Kassab, Mr. Kornstein and Mr. Platt, but the group was often much larger, especially on days when "action" was expected.
My attorneys were Gary Bostwick and the quiet, reserved, efficient, tall, brunette and attractive JoAnn Horn. Additionally, Gary often had his (excellent) female paralegal, sometimes his wife, occasionally our first witness for the day, and he, too, would have a reporter or two trailing him. Gary was mainly business. He rarely spoke to spectators or to the press, and almost never did so when the judge or jury were in the room. Kornstein, on the other hand, would frequently, "schmooze" with press, Fred Kassab, other lawyers, or even the students who came to watch trials.
Our daily routine usually started with an intense 5-20 minute huddle, while Gary absorbed my ideas generated during the previous 12 hours and 2 bus rides, or as I delivered an "intelligence" report on an upcoming witness - i.e., I had done a chore related to witnesses using my files back in my cell, or simply from memory, the night before. [Trial was extremely draining - it was for everyone, but I often did not even get back to my cell until 8 or 8:30 p.m. after court.] If G.B. had a major chore that morning, such as opening statements, or cross-examining a potentially difficult witness, like Dr. Stone, he would be very "within" himself, sort of withdrawn and more businesslike than he usually was. If the pressure was less that day, he would be more affable. He is very smart, quick on his feet, and while his charm is "just plain folks", he is, in fact, intellectual, with a curious and imaginative mind. Janet Malcolm, as you know from her book, loved him. In fact, she retained him in her court struggles vs. the psychologist, Jeffrey Masson, a major legal battle recently won by G.B. and Janet Malcolm in San Francisco Federal Court. Gary's formal and more businesslike approach carried over even more so in any dealing with judge or jury. There, he rarely used histrionics, almost never told jokes, and "guided" the jury only gently. Kornstein, in contrast, was bombastic, used all sorts of dramatic body language and expressions of speech, and frequently told the jury what to believe, as opposed to letting the jury decide what is true by shining a bright light on the subject. Two lawyers couldn't be more different in their style and approach.
*****, just so your readers are aware, exactly, of the effect the psychological and psychiatric witnesses had on the trial, recall that my lawsuit alleged several things that I had to prove to win the lawsuit. I alleged McG defrauded me in his conduct over the 1979-83 years of the book writing. I alleged he mis-portrayed my life, contrary to a signed agreement I had with McG, wherein he was under an obligation to tell the factual truth. I alleged he intentionally inflicted upon me emotional distress. And I alleged he stole funds from me, funds due to me under the written contract I had with McG.
McG had basically no defense, so his major defenses became an amalgam of several things. First, he countersued me, alleging I wasn't truthful with him (so therefore, he could be released from his conractual obligations). He alleged I cooperated with other journalists, thereby abridging my pact with him (the "exclusivity" clause). And McG alleged he hadn't stolen my money, but rather kept some funds aside, in a trust fund, when I sued him.
The trial was not a libel trial, since a person in prison essentially is libel-proof, libel being based on reputation. Neither was the trial supposed to be a rehash of my 1979 murder trial. The issue in court in 1987 was, did Joe McG civilly wrong me? Judge Rea, for instance, at Kornstein's urging, set a pretrial rule for neither side to attempt to re-argue the 1979 trial. His rule was promptly broken by Kornstein himself, in his opening statement to the jury, thereby unleashing 6 weeks of my efforts to refight the criminal trial of 1979, as well as fight the civil issues of 1987.
In my view, the real issue was extremely simple: was "Fatal Vision" a novel, or was it nonfiction, as McG claimed it to be? And, was I the monster portrayed by McG? It was my strong belief that for any good to come out of the civil trial, I had to prove "F.V." was a novel, and I had to prove McG created his monster out of whole cloth, to fulfill some need in McG himself, as well as to sell books and television movies.