Court Records

July 16, 1979

United States District Court
Eastern District of North Carolina

Memorandum of Law in Support of Defendant's Motion for Pretrial Discovery


VS. : CASE No. 75-26-CR-3

  At the pretrial conference in this case, held on July 14, 1979, counsel for Dr. MacDonald moved for an order compelling the Government to turn over immediately all Jencks Act material (18 U.S.C. 53500), not previously furnished, including grand jury testimony, FBI and CID witness statements and any other material as required by the Act, and pursuant to a 1975 agreement between defense counsel and the Government.  That agreement provided that counsel for Dr. MacDonald would sign a stipulation to chain of custody of all physical evidence listed in all FBI and CID laboratory reports, when a stipulation was prepared by the Government, on the terms and conditions spelled out in a letter dated November 4, 1975.

  Counsel for the Government now contends that it should not be required, pretrial, to turn over Jencks Act materials because "it never got what it bargained for," i.e., a stipulation from counsel for the Defendant.

  The Defendant is satisfied that regardless of the existence of a stipulation, this Court clearly has the power to order such discovery now, on the eve of trial, in the interest of the expeditious and orderly conduct of the trial.  It also has the duty to order such compliance in the interest of maintaining a fair balance between the virtually boundless power and capacity of the Government to obtain evidence, and the severely limited resources of a defendant such as Dr. MacDonald.

The Court has now repeatedly heard Government protests that somehow it has been taken advantage of by the defense which shrewdly and deceitfully never signed the agreed upon stipulation.  The Government position belies the facts.

  The Court is referred to the two exhibits attached hereto.  They show clearly and finally that nearly four years ago the Defendant agreed to sign an appropriate stipulation.  The Government has failed to do what it agreed it would do in 1975, namely, prepare an appropriate set of stipulations for signature by the Defendant.

  Attached to this memorandum is a stipulation [Exhibit A-2] signed by the Defendant himself and his counsel, dated November 9, 1975, in which he agreed, unqualifiedly, to sign a stipulation to be drafted in accordance with the plan described in the letter of November 4, 1975 (Exhibit B) to Government attorney Brian Murtagh from Michael J. Malley (acting for the Defendant).  The letter, in turn, confirmed an oral agreement arrived at a few days earlier by Mr. Malley and Mr. Murtagh. [1]  If the Court will compare the requirements spelled out in Mr. Malley's letter, it will find that in all significant aspects they are the same as the current proposal made by way of the Defendant's Motion in Limine to Exclude the Government's physical evidence (i.e., a motion meant to lay before the Court the issue of how proof of the chain of custody and authenticity of the evidence could be expeditiously proved at trial.)

  The Court has stated that it viewed the proposal contained in the Motion in Limine as "reasonable".  It is the same "reasonable" proposal that the Defendant has said consistently since 1975 that he would sign.  The only difference today is that the Defendant is now willing to settle for the oral representations in Court by Government counsel instead of written representations, as originally agreed.

  One last matter deserves comment.  It is disingenuous, at best, for Government counsel to claim that the act of turning over some Jencks Act material in 1975 was part of a bad bargain and that, in essence, the Government has been euchred by the Defendant's counsel. Government attorney Murtagh stated the real reason for the Government's action of providing some materials in 1975.  On July 14, Mr. Segal read to the Court part of the dialogue which took place before the Court of Appeals in October of 1975, in which the questions from the bench made clear the Court was very critical of the fact that the Government had not turned over certain information to the Defendant.

  Mr. Murtagh responded by admitting that he told the Court of Appeals that the Government was going to turn over materials, and fast.  And, he also stated on the record of this Court that he made that statement to blunt any further criticism of himself and of the Government by the Court! His statement clearly explains the limited 1975 discovery.  It does not in the slightest fashion justify the Government's current protestations.  And, it suggests strongly that there would be no injustice done to the Government to grant the Defendant's request to be given all Jencks Act material now. ________

[1]  There is additional correspondence between counsel thereafter in which the Defendant sought to have the Government prepare a stipulation which in fact contained the information required.  All of this correspondence is available to the Court, if it would like. However, it has not been appended hereto simply because of the extent of other materials now under consideration by the Court.  It is, however, readily available for examination if desired.

Dated:   July 15, 1979
Respectfully submitted,
/Bernard L. Segal/
Bernard L. Segal, Esquire
Attorney for Defendant
and with him
/Wade M. Smith/
Wade M. Smith, Esquire
Tharrington, Smith & Hargrove
Post Office Box 1151
Raleigh, North Carolina  27602


  The foregoing Motion was served upon Counsel for Government by delivering a copy to the office of James L. Blackburn, First Assistant United States Attorney, Federal Building, 310 New Bern Avenue, Room 874, Raleigh, North Carolina, on the date set forth below.

  This the 16th day of July, 1979.