Court Records

June 26, 1991

United States District Court
Eastern District of North Carolina

Hearing on Jeffrey MacDonald's Second Petition for Writ of Habeas Corpus

VS. : No. 75-26-CR-3
JUNE 26, 1991









Raleigh, N.C. 27611


Raleigh, N. C.










BOSTON, MA 02110



THE COURT:  Good morning, ladies and gentlemen. We have convened here this morning, there's a motion in the case of United States against Jeffrey MacDonald. The petitioner ready in that?

MR. SILVERGLATE:  Yes, Your Honor.

THE COURT:  I will recognize Mr. Norman Smith of the Greensboro bar. Perhaps you have a presentation to make.

MR. SMITH:  I want to introduce my co-counsel, Harvey Silverglate and Phil Cormier. Judge Dupree, these are lawyers from Boston; you were kind enough to admit them pro hac vice the other day.

THE COURT:  We are pleased to have you.

MR. MURTAGH:  Good morning, Brian Murtagh.

THE COURT:  I believe I have made your acquaintance on a previous occasion.

MR. MURTAGH:  Your Honor, I have the pleasure to introduce my colleagues, Mr. John F. DePue. He is an attorney with the Criminal Division, U. S. Department of Justice and has been my colleague in all of the appellate proceedings in this case since 1978. I've also known him as a classmate since 1964. Of course, Mr. DePue, Judge Dupree, and Mr. Eric Evenson, my colleague here with the United States Attorney's Office, Eastern District of North Carolina.

THE COURT:  We're pleased to have you. Have you conferred as to the possible length of time that you want to make your arguments this morning?

MR. SILVERGLATE:  We have not, Your Honor.

THE COURT:  Well, could you please give the court some estimate of how long you think it will take?

MR. SILVERGLATE:  Yes, Your Honor. I would think that I can make my initial presentation in forty minutes, if I may have that much time, Your Honor.

THE COURT:  That's plenty, sure. I'm pleased to let you have that much if that's all you want.

MR. SILVERGLATE:  I would hope I might have short rebuttal after the Government.

THE COURT:  Say twenty minutes for that?

MR. SILVERGLATE:  Yes, Your Honor.

THE COURT:  Would an hour to a side then be agreeable?

MR. MURTAGH:  That will be fine, Your Honor.

THE COURT:  All right. Well, let me say, gentlemen, that I read your briefs and much of the supporting materials, the affidavits and so forth; not all of it but that which I have not been able to read personally my clerks have been kind enough to summarize for me so you may assume that I have a reasonable familiarity with the case and if that will help you shorten it any you may proceed with that information and I'll hear from the petitioner.

MR. SILVERGLATE:  May it please this honorable court. I first want to thank Your Honor for allowing my motion to appear to argue pro hac vice this morning. It's an honor to be before this court.

THE COURT:  We're pleased to have you.

MR. SILVERGLATE:  Thank you, Your Honor. Your Honor, partly in the interest of saving time and partly as a result of the symmetry of the legal arguments presented, I'm going to essentially collapse the two major segments of the arguments in this case.
The two segments are, number one, the so-called abuse of the writ issue which was raised affirmatively by the Government in its papers and then replied to by the petitioner in his papers. And there is the merits of the case, and that is the issue of the materiality of the evidence that was uncovered through the Freedom of Information Act.
The reason I am planning to merge the two, collapse the two, Your Honor, is because, as Your Honor can see from the reply brief of the petitioner, the abuse of the writ issue, from our perspective, really will be resolved on the basis of whether or not we convince Your Honor that we have an issue here in which the petitioner has made, set forth evidence which constitutes a colorable claim of innocence. Doesn't mean it's a claim that has to persuade Your Honor but it does mean that it has to be a colorable claim.
Now, getting to what I mean by that a little into the argument, Your Honor. So if we have shown a colorable claim of innocence, something that the jury might use in order to acquit, we get over the hurdle of the Government's abuse of the writ claim. Government claims, Your Honor, it cannot get to the merits of this habeas petition because it is a second or subsequent habeas petition and --

THE COURT:  By odd turn of events, the Supreme Court has spoken not once but twice in the last sixty days on matters that touch on the issues involved here; has it not?

MR. SILVERGLATE:  That is correct, Your Honor.

THE COURT:  Last evening I was reading a case of Coleman against Thompson, decided on Monday of this week. So the Supreme Court apparently is looking over our collective shoulders.

MR. SILVERGLATE:  I certainly feel they look over my shoulder; whether they are looking over Your Honor's shoulder as well, I don't know. It was rather bizarre to have, Your Honor, to have the McCleskey opinion come down just days, literally just a couple days before our reply brief was due and Your Honor recalls we asked for enlargement of time. And then to have the Coleman case come down two days before the oral argument makes me wonder what's going to happen tomorrow morning, Your Honor, but the assumption that nothing much will happen tomorrow morning, I will proceed with the argument.
The McCleskey case, as Your Honor points out, Coleman does make clear that while there are various procedural obstacles that have been erected to the court's entertaining a second or subsequent habeas, that if there is a colorable claim of innocence, that trumps all of the technical, the Government's technical defenses. So if we can convince Your Honor of that, that is that we have a colorable claim of innocence, then even if we manage to convince Your Honor to hear the habeas we would presumably lose on the merits. So that's why we have collapsed them together.
What McCleskey does, Your Honor, is to require that in order to get a new trial in circumstances such as this, not only does there have to be a claim of a constitutional violation, which in this case Your Honor is aware is the claim under the Brady line of cases, but there also has to be the colorable showing of factual innocence. And that is easier said, I think, than understood.
Mccleskey uses the term factual innocence. Coleman uses the term actual innocence. I assume they are basically the same thing. A case in which there has been a miscarriage of justice, that's another way the cases refer to it. It all really means essentially the same thing and we can get to the heart of this case. The concept of factual innocence as a colorable showing, factual innocence as a perequisite (sic) to the court's entertaining a habeas actually started in 1970 in an article in the Chicago Law Review by the late Judge Henry Friendly of the U. S. Court of Appeals for the Second Circuit.
That very famous landmark article in which Judge Friendly commented that the thing that had been of substantial interest to him at that time, and this was, mind you, in 1970, Your Honor, was that so many of these post-conviction petitions involved constitutional technicalities but didn't involve question of innocence. Weren't that many people, he said, who come before the court claiming they were wrongly convicted and mischaracter (sic) of justice; they simply claimed their rights were violated. And Judge Friendly suggested that a colorable showing of factual innocence be overlay over habeas law so that only those petitions would be entertained.
The U. S. Supreme Court in a case Kuhlman versus Wilson, 106 Supreme Court 20627 adopted Judge Friendly's standard and the court stated the standard as follows. As Judge Friendly explained:
A prisoner does not make a colorable showing of innocence by showing that he might not or even would not have been convicted in the absence of evidence claimed to have been unconstitutionally obtained.
That's the typical suppression case.
Rather, the prisoner must show a fair probability that in light of all the evidence, including that alleged to have been illegally admitted but with due regard to any unreliability of it, and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial, the trier of the fact would have entertained a reasonable doubt of his guilt. Thus, the question whether the prisoner can make the requisite showing must be determined by reference to all probative evidence of guilt or innocence.
That is the reason, Your Honor, that we submitted in support for further support of our reply brief of summary of all the evidence in the case, including that admitted and not admitted which is now available in order to give Your Honor our perspective, in any event, how all the evidence would unfold had it been available to the jury.
The question of factual innocence is, in some cases it's rather clear; other cases it's more shady; other cases it's clearly not present. We believe that the MacDonald case is a case way out on the spectrum in which we demonstrate that there is a very high chance that a jury could acquit on the basis of all the evidence, including the evidence that was discovered pursuant to the Freedom of Information Act.
In order to just get to the standard for what that spectrum looks like, I would refer Your Honor to the case which is cited in Judge Friendly's article as an example of a case where factual innocence was involved and that's the case of United States versus Miller, 411 Fed 2d 825. It's a 1969 Second Circuit case. The opinion for the panel was written by none other than the Honorable Henry Friendly. Judge Friendly had a monopoly on this issue back then. He wrote the opinions and Law Review article. It's easy to guess why the Supreme Court adopted his position; he was the expert on this issue. And that case, Your Honor will actually, I think, enjoy reading that opinion because it is strikingly like the case at bar including the observation by Judge Friendly that the District Court, the Hhonorable M. Joseph Blumfeld of the District of Connecticut had been with this case a very large part of his professional career.

THE COURT:  Just as I have been with this one a very large part of my judicial career.

MR. SILVERGLATE:  That's what I was hinting at, Your Honor, and also interestingly there had been successive habeas petitions filed in that case. Indeed that case was worse than this case, there were four of them filed in that case and I won't go into all the details but the case involves -- it's a Brady claim in which the prosecutor failed to disclose he himself, the prosecutor, had hypnotized the chief Government witness in order to refresh the witness's memory before the witness testified. And the court noted that the habeas was unusual but there was a claim of factual innocence and the court noted that the witness who was hypnotized was a very important witness in the case and that even though there was a fair amount of defense evidence available at the trial, this would have constituted -- the suppressed evidence would have constituted, as the court said, another arrow to the rather large quiver that trial counsel for the defense shot at the Government witness.
The other interesting analogy between the Miller case and the MacDonald case was that the Government said even if the prosecutor really didn't occur to him in complete good faith to disclose the fact he hypnotized the Government's chief witness, at some time during the trial or during the cross-examination, the issue of how many times this witness had been interviewed came up so frequently, the issue of whether there were notes of the interviews and the rehearsal sessions, that it should have occurred to the prosecutor that, you know, this is the kind of evidence that a defense counsel would want. I may not think, I as the prosecutor may not think it's exculpatory but the way cross-examination is going it's pretty clear the defense lawyer would consider it useful in any event. So there are a lot of analogies between the Miller case and the MacDonald case.
Now, the interesting thing about the case, Your Honor, is that the court vacated the conviction; Miller was retried. The court vacating the conviction said, you know, and this is at page 411 Fed 2d at 832. The Court of Appeals said, and we're not completely convinced by the showing of innocence but we're disturbed enough by it. We're going to give him a new trial. A jury might very well find it persuasive, although Judge Friendly did say he wasn't going to guarantee a jury of Connecticut Yankees would necessarily buy the defense. Nonetheless, as Judge Friendly observes in his article, upon retrial Miller was acquitted so it did make all the difference.
This, despite the fact the trial judge said it would make no difference. The Court of Appeals evidenced skepticism that would make a difference and to the jury it made the difference. Miller was acquitted on retrial. I consider that to be important for purposes of my argument this morning.
I also want to point out something else, Your Honor, from the start, and that is this case is unusual for another reason. Not only because a colorable showing of innocence has, I think, been made but because this is a case in which it is the defendant who is arguing for the inclusion of a lot of evidence and the Government is arguing for the exclusion of a lot of evidence. We will like the jury to have a broader picture; the Government would like the jury to have a narrower picture. From my experience, Your Honor; I assume from Your Honor's experience, that's a reversal of the usual situation that you find. Usually the defendant is deathly afraid the facts are going to come out and it's the Government that wants to have the broadest array of factual presentation. That tells you something, I think, about how the sides stand here.
There's another reason why the McCleskey issue, abuse of the writ issue, merges with the facts. And that is the standards in both are similar. The innocence standard is that we have to show a fair probability the jury would have a reasonable doubt. We have to show that to Your Honor in order to have Your Honor review the habeas in order to get over the McCleskey hurdle. In order to persuade Your Honor on the merits there's been a Brady violation under the Brady, Acres, Bagley line of cases, the materiality standard is essentially we have to show that there's a reasonable probability of a different result. A reasonable probability is a probability, said the court in Bagley, sufficient to undermine confidence in the outcome and I would cite Your Honor to the petitioner's brief at page sixty where we discuss the Bagley case.
So I also, before I get on to the merits, I would like to point out to Your Honor that the type of material we're dealing with here, the laboratory bench notes, was very specifically requested by trial counsel and the Rule 16 motion, which is quoted at the petitioner's brief at page fifty-seven is extremely pointed. It mentions laboratory notes. There's no doubt about that.
And I also would point Your Honor to a rather remarkable letter that is part of the record of the case. It was a letter written from trial counsel, Bernard Segal, to Government counsel, Brian Murtagh, in December of 1975. He is quoted at page fifty-eight in the brief. It's sufficiently important -- I would just like to read a couple lines from that letter, Your Honor, if I may. In order to perform -- this is a quote.
In order to perform any laboratory tests, wrote Mr. Segal, in accordance with good scientific practice, laboratory technicians and scientists regularly record the raw data obtained from their instruments or by their observations during such tests. Frankly, I consider it totally unbelievable that there are no such statements. You are obviously playing games within the meaning of the term statement. I know that the various investigators in the groups of persons had to make notes and reports of their activities and we are entitled to these.
Now, not only is that a specific request but it is a statement by the defense counsel to Government counsel that defense counsel is skeptical that there are no such notes. If ever a prosecutor had a hint that he should go back and look, it is in this case. Far more so, I think, than even the Miller case where Judge Friendly, writing for the panel, said that there were little hints that throughout the trial that the Government should have gone back to its file in order to see whether there was exculpatory --

THE COURT:  Were the typed notes of the investigators not made available to defense counsel prior to trial?

MR. SILVERGLATE:  There were two sets of typed notes, Your Honor. The typed reports of Janice Glisson; that is to say the typed reports relating to the hair and fiber analysis were made available. However, they pointedly exclude any reference to the blond synthetic wig hairs, no reference.

THE COURT:  I understand that this came up later in material which you have discovered well within the last year, let's say, or so, showing that there were handwritten bench notes which contain more than the typed notes; is that correct?

MR. SILVERGLATE:  Correct, Your Honor.

THE COURT:  All right, sir.

MR. SILVERGLATE:  And some of it was discovered back in '84; some of it was discovered last year. And the bottom line is that those bench notes that were discovered include references to blond synthetic wig hairs, fibers made to look like hair which were found in a clear handled hair brush in the MacDonald residence and was not matched to any item in the house. There was no wig in the house that matched those hairs. They are twenty-two inches long and those were pointedly omitted from the report by the forensic examiners. So looking at the report you would never guess that they were there.
Interestingly, Your Honor, the Government claims, which I'll get to in a moment, the Government claims that it doesn't matter that these bench notes were not turned over because the defense forensic expert, Doctor Thornton, was able to, if he wanted to, examine all of these physical exhibits and he could have found --

THE COURT:  It's not disputed that the evidence itself was made available to defense counsel?

MR. SILVERGLATE:  It's not exactly disputed, Your Honor. We don't know if it was there or not because Thornton didn't examine microscopically everything in the jail cell. The Government claims it must have been there; we don't know. It's one of those things that we feel is probably impossible to resolve but I don't think that it matters. Our claim does not rest on whether these were made available to Thornton for the following reason, Your Honor.
First of all, Government says he should have seen that there were these boxes with slides and the slides have mounted on them these hairs. The problem is this, Your Honor. The outside of the box of slides did say synthetic fibers; no question about that. However, it said -- it listed synthetic -- dark synthetic fibers. Now, the evidence, the testimony of Doctor MacDonald was Stoeckley -- a lot of other evidence -- but Stoeckley had a blond wig so Thornton would have been totally uninterested in a box of slides that talked about dark synthetic fibers because he wasn't interested in a dark wig. Stoeckley didn't have a dark wig but when you open them up, if you open them up, that box, there was within that a mail order which had the blond synthetic wig fibers.
Now, this makes one very suspicious. As I said in our brief, Your Honor, I don't think we ever have to reach in this case whether what Glisson did was done intentionally or knowingly or simply inadvertently. It's very interesting that she types the report, which is given to Segal, which mentions everything under the sun except the blond bench notes and the physical exhibits is a larger package labeled dark synthetic hair-like fibers. Only if you bother opening that, even if you are not interested in dark fibers, if you happened to open it you would see a blond fiber. It was awfully well hidden, Your Honor. Whether it was intentionally so or this is one of the more bizarre coincidences in American legal history, I don't know. It will probably be a mystery forever but the bottom line is it was well, well hidden from Thornton and from Segal.
Now, Your Honor asked about the rest of the notes. That's one set of the blond wig notes. The second set of bench notes that is the core of the case this morning was the examination by Mr. Frier, James Frier, FBI Forensic Examiner, and Your Honor asked about the reports. The report of Frier's re-examination was never turned over to Segal. Had it been turned over to Segal, he still wouldn't have known anything about the fact that black wool fibers were found in Colette MacDonald's mouth, on the bicep area of Colette MacDonald's arm and on the club, murder weapon that murdered Colette MacDonald. Had the report been turned over, which it wasn't, it would still not been evident but had the report been turned over Segal may have decided to examine Frier on the witness stand because he would have probably wanted to know why Frier did a re-examination; why was it that Mr. Murtagh requested a re-examination. In fact, Frier was asked to do two re-examinations. So there's a chance it would clue Segal in that there was something amiss and he should have examined Frier.
Instead, what happened was he got nothing and then at the trial Segal agreed to a stipulation proposed by the Government that instead of putting Frier on the stand his testimony, which was rather insignificant, simply be stipulated to. So Segal, completely naive that Frier could have blown the whole case wide open, as could Glisson had, agreed to the stipulation. Frier never got put on the stand and there was no way inadvertently Segal could have learned from Frier he found these black wool -- he identified black wool threads right on the murder victim, in her mouth and on the club.

THE COURT:  You know Mr. Segal?

MR. SILVERGLATE:  I have met him once for about an hour, Your Honor. I didn't know him before and I can't say I know him well now.

THE COURT:  Your description of him as being naive is not exactly consonant with my observation of him over a long period of time. I thought he was a very astute counsel and very thorough.

MR. SILVERGLATE:  I will be sure to communicate that to him as soon as this argument is over. I'm sure he'll appreciate it but, Your Honor, this case is such that I must say even the astute would be fooled. I do consider Mr. Segal to be an astute lawyer but there's no way that he would have dreamed what Glisson or Frier found in this case. Your Honor didn't know about it either; it was kept from the court and obviously the jury didn't know about it.
Now, why is this important? Why is it material? Why is this evidence different from all of the rest of the evidence? And that's where I'm now going to head, if I may, with my argument.
Jeffrey MacDonald, in his testimony, said that the woman who attacked him had blond hair. There is a lot of evidence in the record, some of it admitted before the jury, some of it on voir dire, some of it found subsequent to the trial, some of it part of the new trial motion by Mr. O'Neill. There's a lot of evidence that Stoeckley had a shoulder length blond wig. It is sometimes described, as it was in the Article 32 report in the military proceeding, it was described as stringy. It's not exactly a high class wig but then again I don't think the evidence about Stoeckley shows she was a high class lady. It was a stringy wig, straight. Testimony of -- the evidence is it was straight and she herself testified that she owned it about this time and she testified she wore it from time to time as a joke, so you get the sense that it was not a very high quality wig and it was rather poor quality, in fact. And MacDonald identified blond the moment he awoke at the scene of the crime. That's being consistent.
Now, the other interesting thing in the record that strikes me; I know it strikes Your Honor because Your Honor mentioned it in one of Your Honor's written opinions, was that there was some testimony that there was a phone call made to the apartment while the murders were being committed and Stoeckley answered the phone. Your Honor knows from the record that the clear handled hair brush containing the blond wig hairs was placed right near the phone so there was the geographic proximity. Your Honor noted that 640 Fed supplement 322. That's Your Honor's 1985 opinion denying the new trial motions and Your Honor described that.
What is so important about the black wool? Well, Your Honor, what's important about it is that it was found on the victim and on the club and it was not identified with anything else in the MacDonald house. Also, Stoeckley did testify, Your Honor allowed her to testify to the jury to this much, and that was that she always wore black or purple clothing. So that's quoted in the petitioner's brief at pages thirty-four and thirty-five. So we have this enormous amount of foundation evidence all linked together that makes the blond wig hairs and the black wool extremely important in corroborating Doctor MacDonald's story, the version that he told the jury.

THE COURT:  Before you leave the Stoeckley testimony.

MR. SILVERGLATE:  I'm not leaving it yet.

THE COURT:  Well, I want to inquire. You say that the court allowed Stoeckley to testify to something. Were there any restrictions placed on Stoeckley's testimony by the court at the time of trial?

MR. SILVERGLATE:  No, Your Honor.

THE COURT:  I had it brought to my attention recently that this court would not allow her to testify because she was not a credible witness. Now that was in the news report, so I understand. I don't read these things myself but my recollection is that the Government found this witness for the defendant, brought her here and then I recessed the trial for the better part of a day so she could be questioned and briefed and debriefed and so forth and that she took the stand and testified and you say there were no limitations placed on her testimony?

MR. SILVERGLATE:  That's correct, Your Honor.

THE COURT:  So the jury that returned the guilty verdict in this case did hear her sworn testimony?

MR. SILVERGLATE:  Absolutely, Your Honor.

THE COURT:  All right, sir. Thank you.

MR. SILVERGLATE:  In fact, she was, I believe she was arrested under a material witness warrant. That's how she was picked up. Your Honor's memory is absolutely correct.
The claim, Your Honor, is that what the jury couldn't hear were the witnesses to whom she had confessed the murders, the so-called hearsay witnesses.

THE COURT:  Yes, I believe I recall that. She made some statements in Nashville, Tennessee or some place.

MR. SILVERGLATE:  Some in Nashville, various places.

THE COURT:  And they were tendered under the exception to the hearsay rule and I ruled, as Judge Murnaghan, I believe suggested, perhaps a little hastily on the thing in that it would have been better for the prosecution had those hearsay statements been admitted but, of course, I had to call it as I saw it and I didn't think it met the trustworthiness standards. That's why I ruled as I did with respect to the hearsay.

MR. SILVERGLATE:  I don't think anyone said Your Honor ruled hastily. In fact, Your Honor was very careful to state all the grounds for Your Honor's ruling. I think what Judge Murnaghan said, if he were the trial judge, which he was not, would have ruled differently but it was Your Honor's call. I don't believe they said Your Honor ruled hastily. Nor do I think Your Honor ruled hastily.
Now, what I would like to do now, Your Honor, is to demonstrate how it is that --

THE COURT:  May I suggest, sir, before you begin a new subject that you have used the better part of your forty minutes but I'm not going to cut you off. You finish your argument and we will then see what we will do the remainder of the morning.

MR. SILVERGLATE:  I thank Your Honor for the courtesy. There was an evidentiary chain that I would like to track how this evidence got in and what would have been done in this trial. We start from the proposition the lab notes, had they been disclosed, would have been admissible. I don't see anything in any of the Government's briefs arguing to the contrary. I don't think there's an argument to the contrary. They would have been relevant pursuant to the Federal Rules of Evidence 401 and 402 and that is argued in some detail beginning on page fifty-six of the petitioner's reply brief. Since I'm running late I will not get into any more detail, especially if the Government hasn't argued otherwise why should I --

THE COURT:  I don't think I have trouble with that part.

MR. SILVERGLATE:  So let's go to step two, if I may, Your Honor. The notes would have, to some extent, corroborated MacDonald's account; that is to say the notes were linked to Stoeckley. He had testified about Stoeckley and a group of three others. They would have corroborated his account. They also would have shown independently that there was a good possibility Stoeckley was in the apartment. She had a blond wig hair, she always wore black and there were black wool fibers in strategic locations not matching anything in the MacDonald house indicating it was probably introduced from the outside.
Now, the Fourth Circuit did uphold Your Honor's exercise of discretion although there was some misgiving in Judge Murnaghan's concurrence and --

THE COURT:  Let me interrupt you just a moment, sir. We have a rather large audience this morning and people are continually going and coming. It's a little bit disconcerting for people to get up. You have every right in the world to be here; I want you to be here but we have to observe a little decorum in going and coming so let me say now if there's anyone who feels you would need to leave before eleven o'clock, would you please leave now and thereafter we will take a recess and you can go and come as you like and thereafter we will try to let you go and come at fifteen minute intervals rather than just as you are doing now. Anyone care to leave now? All right, this is last call for departure and we will let you go again at eleven.

MR. SILVERGLATE:  May I continue, Your Honor?

THE COURT:  Yes, sir. I'm sorry for the interruption. I will not charge that against your time. It's a little disconcerting having people opening the door right behind you there, going and coming while I'm trying to concentrate on your argument.

MR. SILVERGLATE:  I must say, Your Honor, I can't see the door.

THE COURT:  We have that ground rule set now.

MR. SILVERGLATE:  As long as Your Honor is on the bench I'm happy to go on.
At the argument on the appeal of the merits of this conviction, it took place at the Fourth Circuit on June 9, 1982. Judge Murnaghan stated to Mr. DePue, who argued for the Government, that this was a torture question, a close question and its fairly obvious from his opinion he was disturbed by the closeness of it. And the Government agreed as well that there would have come a point at some point had the defendant had more corroborating evidence that it would have been an abuse of discretion to omit that evidence from the -- to not allow it in before the jury.
And here's the very pregnant question Judge Murnaghan asked Mr. DePue. Page forty of the oral argument transcript of the Fourth Circuit.
Suppose the evidence was absolutely clear that she, Stoeckley, had in fact been on the street corner within a very narrow distance from the home of the MacDonalds on that morning or suppose the evidence had gone so far as to show she had in fact been in the house. Then the fact that people may have talked to her and planted things in her mind would not be all that significant. She would have been there; she would have been in a position to see and to testify as to what happened.

Mr. DePue said, it would certainly lose some some of the significance but we're talking about moving up the sliding scale with a different set of factors, which the trial judge had to weigh. Certainly some point would be reached at which you might find an abuse of discretion. I submit, however, those facts are not here now.
That was in response to the question about whether there was independent evidence she was in the house. There's now independent admissible evidence that somebody with a blond wig wearing black wool clothes was in that house and whoever it was was involved with the murders. Because the black wool was in the mouth of the victim and on the club that murdered the victim. So a whole different weighing process would have to go on. Your Honor would have a very different decision to make, a very different issue before Your Honor had these lab notes been available to Your Honor.
The lab notes, therefore, would have been the trigger, in my view, for the admissibility of the Stoeckley hearsay testimony and as such, would have made a tremendous difference in the case. The Court of Appeals noted at one point, Your Honor, that had the Stoeckley hearsay testimony, had evidence of Stoeckley's involvement in the murders gone to the jury, the damage to the Government's case would have been incalculably great. The injury would have been incalculably great. That's 632 Fed 2d 264. It's the Fourth Circuit 1980 opinion and it's quoted at page twenty-five of the petitioner's brief.
That is the law of this case, Your Honor, the law of this case. I don't see how the Government can get around it. Had the Stoeckley hearsay gone to the jury the damage to the Government's case would have been incal -- I can never pronounce that word -- great beyond calculation, if I may paraphrase the Fourth Circuit. I practiced the word all last night, Your Honor, and I can't pronounce it.

THE COURT:  I think you did very well.

MR. SILVERGLATE:  Thank you, Your Honor. Judge Murnaghan, in his concurring opinion in 1982 at 688 Fed 2d 235 said something quite interesting, Your Honor. He said Your Honor decided that Stoeckley was a heavy drug user, she was a disheveled, lost soul kind of person, a person who was not an inherently reliable witness. Her statements didn't have the indicia of reliability and that was fine, given the fact that Your Honor didn't have the lab notes. That ruling was within Your Honor's discretion.
Judge Murnaghan pointed out, though, in 1982 there's another way of looking at it and that is after the Manson/Tate/LaBianca murders, there's a new way of looking at these kind of utterly horrible crimes. That is, there's a certain type of person who is capable of this degree of heinousness and Manson showed that this was so. And Judge Murnaghan said a person like Stoeckley might be a very good candidate for getting involved in this kind of murder. So the fact she was a drug user and a disheveled lost soul type of person might be a double edged sword. It could arguably cut for admission of the Stoeckley hearsay; it could arguably cut against it.
Your Honor decided to cut against her but he said it can be another side and if there were corroborating evidence then it would tip in favor of admission. It's a very interesting analysis he does in his opinion and what I'm suggesting to Your Honor is that this case is now tipped way over to the side that this evidence had to be admitted. There was a foundation for it. It tied up with -- MacDonald testified Stoeckley, Posey, Beasley, Zillioux and Mica; that all ties together now.
Now, the Government says these lab notes don't really mean as much as what you think they mean. Government says take the blond wig fibers, and this is extremely crucial Your Honor. Government says we have an expert affidavit, which we have filed, that shows that it was made of saran, s-a-r-a-n. That's a low grade fiber; they don't make good wigs from this material. They make doll's hair from this material; they make mannequin wigs from this material; they don't make good wigs for women to wear. Now, nobody ever said this was a good wig. Nobody ever said Stoeckley was what's come to be known as a high maintenance woman. She wore this, she said, as a joke from time to time, this woman's wig. It's perfectly consistent with all the evidence that a wig fiber made -- a wig that was fit for a mannequin would have been worn by Helena Stoeckley.
The Government's own attack on these lab notes simply strengthens our claim that there's a tie between her wig and these lab notes. Posey testified her wig was stringy. And the Government then goes on to say well, maybe it came from Colette MacDonald's fall. She had a fall in the apartment. The Government hadn't found it. They have since retrieved it from Mr. Kassab but if you read their affidavit, the affidavit says the fall were gray fibers and they didn't match the blond wig fibers. So clearly it didn't come from Colette MacDonald's fall. I don't know why the Government injected her fall into the case; they don't match. The fall fibers were not blond.
The Government also says maybe they came from the kids' dolls. Well, I haven't seen a doll with twenty-two inch long hair, number one; and number two, the Government tried to match it to the kind of dolls the MacDonald children were known to have had and they didn't match. It's right in the Government's affidavits. So this is all a gigantic red herring.
Number two, the Government says take the blond (sic) wool; maybe it came from woolen caps the children got for Christmas. Maybe they did get woolen caps for Christmas but the Government forgets one point. What was Colette MacDonald [wearing] when she was murdered, why did she have the children's caps in her mouth? Was she eating them? It makes no sense. Clearly the wool came from the person who assaulted her and not from the children's caps, assuming the children had woolen caps.
What I'm trying to say, Your Honor, is that all of the Government's claims in its briefs that these lab notes may not mean what we think they mean are inadmissible. There's no foundation for the Government to even make these claims to the jury; there's sheer speculation. We're now in a position which is opposite that we were in at MacDonald's trial. We, the defense, has a theory for the admissibility of all of this. It is probative; it is relevant. And on the Fourth Circuit's view, would do incalculable damage to the Government's case, and the Government has no theory for admissibility of its speculations, that maybe these notes don't mean quite what we say they mean. The shoe is now on the other foot, one hundred eighty degree turnaround. There is no theory under the Federal Rules of Evidence that the Government can admit this nonsense about mannequin's hair, children's dolls, Colette's fall, children's woolen caps; all inadmissible.
What else does the Government do? It comes up with a remarkable theory, forensic theory, in its papers called the Transfer Theory of Locard, L-O-C-A-R-D. This is the part. This opened up my eyes. When I read that part of the Government's brief I understood, I think, how this case came off track in a way that neither Your Honor nor Mr. Segal, perceptive though he may have been, could not have imagined.
Here's what happened. I think it's quite obvious. The Transfer Theory of Locard held in order to be forensically significant, a fiber had to be matched to some known. And so the Government, early on, had this theory that MacDonald was the murderer and they went around trying to match fibers found at the crime scene to him and sometimes they did and sometimes they didn't. They found some of his pajama fibers in various places, including on the club, murder weapon. They made a big deal of that that oh, MacDonald's pajama fibers were on the club. Rather than assume he was clubbed with the club they assumed he was the one who wielded the club. But the Government did not make a big deal; in fact, they didn't include in its reports.

THE COURT:  Was there any evidence that MacDonald himself was hit with this club?

MR. SILVERGLATE:  Well, he had injuries. He had a contusion on his head. He didn't know what it was. He described something that looked like a club that hit him. That was his testimony but we, of course, don't know. He was certainly hit with something.
The Government's theory is that because a fiber can't be matched to anything in the house it is, under the Transfer Theory of Locard, not forensically significant. Just look at it from the defense point of view. The defense was outsiders, intruders committed the murders. One way of proving that is to show there are unmatched fibers, fibers that are unmatched to anything belonging to the MacDonalds at strategic locations at the murder scene. Anything in that category, however, that the Government found he put to the side; it didn't include in its reports because under the Transfer Theory of Locard if it can't be matched it's not forensically significant.

THE COURT:  Was there not evidence at the trial that there were unmatched fibers?

MR. SILVERGLATE:  There was some evidence, Your Honor, and that's what makes me particularly suspicious. If there was some evidence the Government let through that there was unmatched fibers then it's very suspect that the Transfer Theory of Locard was really applied rigorously. I think the Government would like the court to think the reason the black wool and the reason the blond wig hairs were not disclosed was because there was a general forensic theory the Government in good faith believed that made it insignificant forensically. Maybe that was or wasn't.
One has to approach this with some skepticism because it's really irrelevant to this motion whether the Government acted intentionally or not. I haven't made that big of a deal of it in the argument this morning. There's no reason for me to prove the Government had ill will if it isn't necessary to win the motion but one does raise an eyebrow about how the selectivity that went on here, how it happened. This theory of Locard sounds plausible until you realize it's a recipe for excluding everything that's exculpatory. What supported their theory was forensically significant; what supported the defense was forensically insignificant.
The problem with Locard, Your Honor, is even assuming it's a legitimate scientific theory, which I don't believe it is, it's in such violent conflict with the Federal Rules of Evidence and such violent conflict with Brady, Acres, and Bagley, even if it's a valid forensic theory it certainly has no place in a federal criminal case like this. What governs is not this hokey; I call it hokey because it seems hokey to me, this hokey theory. What matters is the Federal Rules of Evidence and Brady, Acres and Bagley. So it does no good to rest on the Transfer Theory of Locard.
I'm nearly at the end of my argument now, Your Honor. The Government really never proved MacDonald committed the crimes. As Your Honor notes, what the Government proved was that MacDonald's story was not true and, as Your Honor points out time and time and time again, and it is repeated by the Fourth Circuit, there was no physical evidence to corroborate MacDonald's story and surely there would have been had his story been true. And Your Honor does that at 640 Fed supp 322; the Fourth Circuit repeats it. Your Honor instructed the jury and your instruction is quoted in the brief of the petitioner, page twenty-four.
With respect to a false exculpatory statement, if MacDonald was found by the jury to have made false exculpatory statements, the jury can view that as evidence of guilt and so he was convicted because the jury didn't believe his account. Had these lab notes been there, Your Honor, with all due respect, I think the jury would have believed his account, at least there would have been a very substantial reasonable doubt. These lab notes are much more important even than the physical exhibits themselves because this is the Government's own expert saying that there were wig hairs and there were black wool found in strategic locations at the murder scene. There wasn't going to be a fight over what these were. The Government's lab notes identified them. That's the position the Government was going to be stuck with. If it tried to wiggle out from that position it would have been in an embarrassing position in front of the jury. And it would have been extremely potent because it wouldn't have had to come from Doctor Thornton, it would have come from the Government's experts.
In his closing argument, prosecutor Blackburn said the physical evidence was not reconcilable to MacDonald's testimony. That's quoted at the petitioner's brief, page fifty. He said that only MacDonald's testimony leads Stoeckley to the crime scene. That's quoted, pages fifty and fifty-one of petitioner's brief. No other evidence linking Stoeckley; we now know that's not true.
Mr. Murtagh, in his closing argument, said physical evidence connects only MacDonald to the crime scene. Quoted at page fifty of my brief; that's no longer true. He told this court that physical evidence pointed only to MacDonald. And the closing argument pointed out, this is quoted at page fifty-two of the brief, that it was MacDonald's pajama fibers on the club. We now know it was black wool on the club and black wool on the victim's mouth and on her bicep and none of it matched anything belonging to Jeffrey MacDonald. The same statements were made in the brief to the Fourth Circuit quoted, page fifty-three of my brief and Supreme Court of the United States quoted at page fifty-four.
Your Honor stated time and again there was no direct evidence of intruders. I call Your Honor's attention to Your Honor's opinion, 640 Fed supplement 322, at 289, at 314, at 333 and I also call Your Honor's attention to the statements the Government made that if it didn't turn over all Brady material there would be inevitably a reversal in this case. That's quoted in my brief at page seventy-seven, and we're at that point.
I have one further case to cite then I'm finished with Your Honor's time permission and that is the case that came down. I notified the Government of this yesterday. It just arrived in slip opinions. Needless to say, Your Honor, since we got into this case we started to order the slip opinions of the Fourth Circuit and the two cases from the U. S. Supreme Court that we alluded to in the opening of today's argument, were not the only two cases that came down that have a remarkable impact on this case. There's a case, United States of America versus Haywood Williams, Junior, which was decided June 21, 1991. I have already supplied a copy to the Government. Is it permissible for me to hand this one to the clerk?

THE COURT:  Tell us what it is first. What court and --

MR. SILVERGLATE:  Fourth Circuit.

THE COURT:  All right. United States against Williams?

MR. SILVERGLATE:  Yes, U. S. Against Williams and it is a case that, post-McCleskey case. That's important. Post-McCleskey case heard by a panel consisting of Judges Murnaghan, Sprouse and Butzner. Interesting, all three of those judges have sat on one or another MacDonald case and it was a second 2255 motion, which is what we have in this case, Your Honor. And the court vacated even though the issue had been raised previously, which I don't believe is the case here, but even though the issue was raised previously the court finding that the interest of justice required it to vacate, vacated notwithstanding McCleskey. This is, as I said, post-McCleskey case and there's a very interesting footnote that the panel wrote.
Footnote four at the end of the opinion explaining why, even though this was the second time it was hearing this issue and it was going to reverse and here's the quote which I close my initial argument this morning.
A court possesses the power to change a prior decision which is in error and would result in substantial injustice. Citing Edwards versus Johnston County Health Department, 885 Federal 2d at 1218, Fourth Circuit 1989. This court will not allow any law of the case doctrine to prevent it from correcting a previous decision which resulted in substantial injustice.
Now, in the case in front of Your Honor --

THE COURT:  I don't see how any court could fail to do that.

MR. SILVERGLATE:  Yes, no court could fail to do that. In this incident case, Your Honor, Your Honor now has substantial new evidence, admissible evidence that would have triggered the admission of a whole class of hearsay testimony that the Court of Appeals said would do incalculably great damage to the Government's case.
With all due respect, the petitioner asks Your Honor to grant, on that basis, MacDonald a new trial. I thank Your Honor for your courtesy and particularly for your patience in my overly long argument.

THE COURT:  Thank you, Mr. Silverglate. Now, to start the Government's argument would run us a little beyond our customary recess hour for the morning hour. Suppose we take it a little early today and we'll come back at eleven fifteen. Now, those in the audience, this court tries to operate on time. That means if you desire to come back for further session at eleven fifteen you should be back in your seats at that hour and we will resume at that time. Thereafter, there will not be -- you will not be allowed to go or come until thirty minutes. So, you can write your own ticket on that. Take a recess until eleven fifteen.

(Recess taken.)

THE COURT:  All right, I'll hear from the Government. Mr. DePue?

MR. DEPUE:  Good morning, Your Honor. Please the court, I'm delighted to be here participating once again in the MacDonald case.

THE COURT:  All right, sir.

MR. DEPUE:  Permit me first to address the probity of the so-called newly discovered evidence before going on to discuss the McCleskey issue and procedural matter of default. In this context, Your Honor, I think it's vitally important to understand what precisely is the quantum of evidence that's necessary to obtain an exception to the bar of McCleskey under the court's decision. To that end I'm going to quote from the McCleskey decision itself.
Federal courts retain the authority to issue the writ of habeas corpus in a further narrow class of cases despite the petitioner's failure to show cause for procedural default. These are extraordinary issues when a constitutional violation probably has caused a conviction of one innocent of the crime. We have described this class of cases as implicating a fundamental miscarriage of justice.
It's our submission that nothing that has been presented here today in the context of this newly discovered evidence in any way, shape or form changes things from the way they were when this trial occurred back in 1979.
Let me first address the physical evidence itself. That evidence focuses on laboratory bench notes which allegedly reflected the discovery of unmatched synthetic fibers and wool fibers at the crime scene. At the outset, I think it's important to understand two things. First, the significance of the phrase unmatched. It does not mean that forensic examination were conducted on this physical evidence back in 1975 using items known to have been in the MacDonald household and resulting in a determination then and there that the material did not originate in the household.
In the context of these reports, unmatched simply means that no effort whatsoever was made to match this physical evidence because at that time it was not viewed by anyone as having any forensic significance whatsoever. So it does not mean, as the petitioner would suggest, that examinations were made and it was determined that nothing in the household comported with these particular items.
Secondly, these laboratory bench notes appear in petitioner's papers. To have developed a life of themselves that they themselves are in some way exculpatory but at their very best they are nothing more than flags or sign posts that would possibly invite one's attention to the actual physical evidence itself and to perhaps require further consideration of that evidence. And I would submit Your Honor that when you follow that trail and you look to the physical evidence it is totally, absolutely worthless.
Let me first address the synthetic fiber that petitioner now maintains originated in the wig of Helena Stoeckley. In the first place, there is nothing in this record whatsoever suggesting that any twenty-two inch fiber originated in the wig. There is nothing in this record that suggests that Helena Stoeckley was wearing a wig on the night of the murder. In fact, her testimony before Your Honor was that she was not wearing a wig on the night of the murder because her boyfriend didn't like her wearing the wig. So it's very difficult for us to understand how this so-called exculpatory evidence would in any way have assisted in making her evidence admissible under the Federal Rules of Evidence.
In fact, the testimony of Mr. Posey before the Article 32 investigation, to which the petitioner has diverted, was to the contrary. That she had stringy brunette hair and that's the way she appeared during the time in question. Not only is there no evidence that she was not wearing a wig on the night in quesion, not only is there no evidence that the defendant has proffered even suggesting that these synthetic fibers originated in a wig, the Government can demonstrate to the contrary precisely what the source of these fibers was. In fact, the laboratory bench notes of Glisson reflect that four synthetic fibers originated in that hair brush. One was known as a delustered monacryllic fiber, variously referred to by Glisson as gray or blond.
As a result of a forensic analysis conducted recently by the FBI on a fall known to have been owned by Colette MacDonald, it has been established that this fiber originated in Colette MacDonald's own fall. So yes, we do have evidence that one of these fibers originated in a wig, Colette MacDonald's wig, and I invite the court's attention to number seventeen in the appendix to Mr. Malone's affidavit.
Let's now address the other three synthetic fibers that were found in the clear handled hair brush. Those three fibers were made of a substance known as saran. Saran, we know from our expert, is totally unsuited for the manufacture of wigs, has never been known to have been used in the manufacture of wigs because it simply doesn't appear anything like human hair. Its sole use, so far as our forensic examiner knows, is to be used in the manufacture of doll hair, in screens, mops and mannequins. I'm aware of no evidence that even suggests in this record that Helena Stoeckley was wearing a mop or perhaps mannequin hair.

THE COURT:  Well, defendant suggests on the other hand that no doll has twenty-two inch long hair.

MR. DEPUE:  That's right, Your Honor, but what we know from working with this case and working with our forensic specialists, it's one that when dolls are made the hair is typically looped or woven inside the skull of the doll, accounting for or explaining the length of the hair but the important thing to understand is that saran has never been used in human wigs. Nonetheless, not only --

THE COURT:  Women used to wear something, I believe I heard it described as a doughnut, a little curl of hair on the back of the head. Are you suggesting that dolls have that?

MR. DEPUE:  I have never seen one, Your Honor. I think what else is significant here is that Mr. Malone, our FBI forensic specialist, compared one of these saran hairs to a standard in the FBI reference collection and found the two to be consistent. Saran hair being fully consistent with a doll hair from the head of a doll in the FBI's reference collection. So one explanation for the length of this fiber is that it was very likely doubled in the skull of the doll, the type of dolls we know to have been owned by the MacDonald children and to have been in the MacDonald household at the time.
Let me next address the wool, the dark colored wool. In this context I think it's first of all important to point out the fact that petitioner has never connected that wool with anything in the MacDonald household. The Government at that time didn't either because it simply wasn't forensically signifsignificant. Indeed, Jeffrey MacDonald got rid of all the clothing.

THE COURT:  The defendant says it was not connected with anything in the MacDonald household for the simple reason that it was not of MacDonald household origin; that it came from outside.

MR. DEPUE:  That, Your Honor, of course, is pure speculation. We don't know precisely where it came from. What we do know, however, Your Honor, is that there were a number of miscellaneous, many, many, many miscellaneous fibers found on Colette MacDonald's body. The Government has been able to nail down many of those hairs and found them to have originated in the MacDonald household itself.
We know that under the Locard theory an individual generally reflects hairs or fibers that reflect the substance to which the individual's body last came in contact. In this case, that surface was the rug on which Colette's bloody body lay, which picked up many, many other colored fibers. The logical conclusion is that these black wool fibers originated in the MacDonald household, got on the rug and she picked them up when her bloody body hit the floor, hit the rug.

THE COURT:  Was she found on the bed or floor?

MR. DEPUE:  She was found on the floor on a rug and many of the white hairs that petitioner has proffered in his opening brief, that is, his newly discovered, evidence was found to have originated from that specific rug.
I think it's important to understand that Jeffrey MacDonald had access to all dark woolen clothing in the MacDonald household following the Article 32 investigation. He got rid of that dark woolen clothing and that has in some measure inhibited us at this time from precisely pinning down the source of those dark wool fibers.
I think it's also important to understand that these dark woolen fibers, as they were found, had been determined by our forensic expert not to have originated from garment but rather to have been many different dark colors, suggesting different sources and, of course, seriously undercutting petitioner's claim that they originated from a single source. The clothing of Helena Stoeckley. But even if this evidence could be construed to suggest the presence of an intruder in the household, it would not in the least change the posture of this evidence.
There was evidence before the court suggesting the presence of intruders, unaccounted for candle drippings, fingerprints, foreign fibers. All of this was argued very vigorously by Mr. Segal to the court yet that didn't change the compelling nature of the forensic evidence that devastated petitioner's version of events, particularly the pajama top that only he could have controlled and that only he could have known the truth with respect to it. It did not change in the least the fact that that forensic evidence pointed directly to petitioner as the murderer.
How would this physical evidence, this newly discovered physical evidence have affected the admissibility of Stoeckley's testimony? First thing I think Your Honor needs to recall in this regard is you excluded Helena Stoeckley's testimony not merely because of the absence of corroborating evidence but because she was inherently trustworthy, because her statements were contradictory and because of her physical state, having been --

THE COURT:  Did you say trustworthy or untrustworthy?

MR. DEPUE:  Untrustworthy, and her physical state at the time having been a frequent drug user and heavy --

THE COURT:  You are alluding now to the excluded hearsay?

MR. DEPUE:  Yes, sir, precisely.

THE COURT:  Not to her actual live testimony which was given right here from this stand?

MR. DEPUE:  You excluded her hearsay statements because they were untrustworthy, because of her physical state, because they were inconsistent not because of lack of physical corroboration. But then how would this evidence have corroborated her testimony? She denied she was wearing a wig on the night in question. We have no evidence from Stoeckley herself what she was wearing that night. Indeed, evidence presented during the subsequent habeas proceeding that I'll discuss later has her in light colored clothing and, as I have said before, none of this physical evidence even suggests that Stoeckley was wearing a mop, wearing doll hair perhaps, was in the house on the night of the murder.
Now, let me go back to the issue of procedural default, the one that Mr. Silverglate has so noticeably disregarded during his presentation. As a preface to that, while Your Honor is certainly far more familiar with the procedural background of this case than I am, let me provide a factual predicate for that argument.
As early as 1979, before this conviction was even final, petitioner began filing with various Government agencies requests under the Freedom of Information Act for the Government's investigative files in this case. Filed such requests with the Army CID Command, the Federal Bureau of Investigation and Department of Justice. Beginning in 1983 and continuing on until 1984 the Government furnished to the defense literally thousands and thousands of pages from that file. In April of 1984 the attorney who was then representing petitioner, Brian O'Neill of Santa Monica, California and local co-counsel, Wade Smith, filed three petitions for collateral relief. Two of them were styled petitions for post-conviction relief under 28 USC 2255.
One of those two was premised on the material furnished as a result of the FOIA. It alleged that in violation of Brady versus Maryland the Government had withheld exculpatory evidence from the defense, suggesting the presence of Helena Stoeckley in the MacDonald house on the night of the murder. This included bloody clothing and boots that allegedly belonged to Helena Stoeckley and which allegedly matched MacDonald's description of Stoeckley's clothing; a photograph of a letter G written by Helena Stoeckley which allegedly matched a letter G on the word PIG at the murder scene; a half filled bloody syringe; unidentified fingerprints. In a lengthy published opinion Your Honor rejected that habeas petition.
First you examined that physical evidence and concluded, as we believe you should today, that it was completely lacking in probative value. You went on however to hold that even if it had probative value the forensic evidence was so overwhelming that disputed petitioner's story and demonstrated him to be the perpetrator of the crime. A standard under 2255 was not met.
How does that fit with the jurisprudence of Sanders and McCleskey? First, in Sanders versus United States the Supreme Court held that habeas petitions that are predicated on the same ground are subject to dismissal and by ground they meant the same legal basis, the same legal issue. They gave us an example, a situation where in a first habeas petition a claim of an involuntary confession was predicated upon coercion and in the second petition a claim of involuntariness was based on psychological rather than physical coercion. That's precisely what we have here today, Your Honor. Two claims predicated upon Brady versus Maryland alleging that exculpatory evidence was withheld from the defense, suggesting the presence of intruders in the MacDonald household and corroborating petitioner's story. The only distinction are the factual differences, the nature of the physical evidence itself.
Therefore, under Sanders, this subsequent petition is subject to dismissal.

THE COURT:  I have been waiting for you to say that, what I understand is one of your contentions, is that everything now known to present defense counsel was revealed to Mr. O'Neill and his staff in 1984; is that correct?

MR. DEPUE:  That's correct, Your Honor. I'm leading up to this. Let me get into it right now. During these FOIA inquiries that I just described to you, the Government released every single document that forms the basis of petitioner's habeas inquiry to date.

THE COURT:  Including that exculpatory note of Glisson's that said there was a last thing they did get?

MR. DEPUE:  Absolutely, Your Honor. Let me address that question. In fact, we released the first document of Glisson's on two different occasions. For purposes of this analysis, let me refer to these blow-up charts of Janice Glisson's lab notes. The blow-up chart on the left is a blow-up of an exhibit to the affidavit of paralegal John J. Murphy. It appears on page twenty-five in your green book. You will note on that chart that Janice Glisson has listed the following annotation.
Numerous blond, various lengths, up to fifteen inches, curly synthetic, question mark. Up to twenty-two inches. We know from Janice Glisson's testimony that at this point what she was doing was cataloging the things that she took out of the hair brush. However, because of the presence of this question mark after the word synthetic, petitioners now maintain that back in 1983 they did not fully understand what she was doing; that they did not see this as anything more than speculation.
Two lines down, however, you see her beginning to write up her findings, as she explains in her affidavit. The statement there is synthetic stirated (sic) fibers made to look like hairs, various lengths, all blond. So you can see in this very document she listed the item as a questioned item then confirmed her speculation. This document alone, if it was in the possession of petitioner in the summer of 1983, should in and of itself have put petitioners on notice resulting in an obligation of inquiry under the McCleskey decision.

THE COURT:  That's not the so-called exculpatory note?

MR. DEPUE:  This is not the confirmatory note; they call it the confirmatory note.

THE COURT:  So then this you say was delivered to defense counsel in 1983?

MR. DEPUE:  Yes, Your Honor. Let me get to that. Now, very fortunately for us, Your Honor, we don't need to speculate here on what petitioners knew, what they thought about this document and when they knew it. As an exhibit to their reply brief, they appended a copy of their own annotated version of this Glisson note. It speaks volumes. It speaks volumes as to what they had, what they knew and when they got it.
First, Your Honor, I would invite your attention to the upper right hand corner of this document. It contains the annotation received June 30, 1983, Army. We know from the testimony of an employee of Brian O'Neill that this was Brian O'Neill's receipt stamp confirming that they had this document back on June 30, 1983 and confirming the affidavits of our FOIA officials that in fact it was released on the 21st of June 1983 in compliance with FOIA requests.
Second, on this annotated version of this note in the reply brief, you will notice that Brian O'Neill's employees connected Glisson's confirmatory note, synthetic stirated (sic) fibers made to look like hair, with her catalog synthetic, up to twenty-two inches long; demonstrating they knew full well then and there that Glisson had confirmed her catalog at this point.

THE COURT:  There was some suggestion in the record, was there not, at least by August of 1984, the confirmatory note was made available and I don't recall whether that was prior to oral argument on O'Neill's motion or not.

MR. DEPUE:  That's the next point in my presentation, Your Honor.

THE COURT:  All right.

MR. DEPUE:  Okay. So the second thing that you need to know about, Your Honor, is this arrow demonstrating that petitioners themselves confirmed what this annotation was. That they understood there was a connection between Glisson's finding and her catalog.
The third thing that I ask Your Honor to look at, I will use the smaller blow-up for this, is a second arrow that was placed from the numerous blond fibers annotation to an annotation that was written apparently by John Crouchley, a law student who was then working for Brian O'Neill. This says K equals E323, clear handled hair brush, not the one found under Colette's body. From this we know that the reason that petitioner's habeas attorneys did not consider this material back in 1983 was not because it was speculative due to the question mark but because they viewed it as not being significant. It wasn't the hair brush that they were interested in. They were interested in the hair brush that came from under Colette's body and this wasn't that hair brush.
Fourth, again in the handwriting of John Crouchley, is this post-it note that appears on their annotated copy of the Glisson bench note.
Karen, here's the reference to the wig hairs. I think the description fifteen curly relates to other hairs on the brush and up to twenty-two inches relates to the synthetic hairs. This is the only reference to it I found from FOIA.
Here we know back in 1983 Brian O'Neill's, petitioner's first habeas petitioner's lawyers, associates realized the potential of these synthetic fibers yet they elected to do nothing about them. In fact, this phrase wig hair is the only evidence in anything that petitioner has proffered that even suggests that these fibers came from a wig and what is it, it's the speculation of a law student.
Again, Your Honor, McCleskey speaks not only in terms of having the evidence in one's possession at the time of the first habeas proceeding but a duty of inquiry where the defendant is on notice that this stuff exists. Surely this imposed a duty of inquiry. In fact, it demonstrates one, petitioners had this exhibit; two, that they understood it; three, that they understood its implications back in 1983.
That's not all. Not only did they have this material but they had unfettered access to the physical exhibits themselves which, as Your Honor will remember, had been kept together for further analysis by Brian O'Neill, if he wished to do so.
Indeed, even before the trial Doctor John Thornton, the petitioner's forensic expert who knew there were unmatched fibers found in the house, who understood their potential for forensic significance by writing Bernie Segal a letter saying hey, we better look at this stuff, was afforded unfettered access to the physical exhibits themselves in a jail cell here in Raleigh. Despite the fact that the trial attorney, Mr. Murtagh, expressly asked him if he wanted to look at the fibers. He declined the invitation saying FBI knows what it's doing in this area, I'll rely on them.
The petitioner makes much of the fact that this was squirreled away in some box that couldn't possibly have been seen by Doctor Thornton. We'll show the box today to Your Honor. What's it say? Synthetic hairs, and then enumeration of it. Inside the box is a mailer --

THE COURT:  Does it say synthetic dark hairs?

MR. DEPUE:  Yes, Your Honor, on top. One black, black and gray synthetic hairs and a number of lines on it.

MR. SILVERGLATE:  That was the point made by defense counsel, I believe.

MR. DEPUE:  Inside that box Your Honor will see there are slides and one of those slides is labeled synthetic hairs, blond. So it boggles our mind how they can come to you twelve years after this conviction and claim that they were never provided access to this material. But what really disturbs us, Your Honor, is how they can come before you with a straight face today and say that this is newly discovered evidence resulting from these 1990 FOIA inquiries.
With that preface let me go on to the so-called confirmatory note. This is an exhibit found in petitioner's opening brief and reply of the confirmatory note. It says in the upper left hand corner, K synthetic hair, blond; K gray or blond. They maintain when they saw this they knew for the first time in 1990 what Glisson had been talking about back here, despite the fact, as I have said before, that Brian O'Neill's colleagues had identified precisely what she had been talking about.

THE COURT:  How come they waited until August of 1984 to give this confirmatory note to them when they had given them everything else in 1983?

MR. DEPUE:  I will refer to Mr. Murtagh to explain that question.

MR. MURTAGH:  Your Honor, may it please the court. There were two different FOIA releases. One was material that came from my files in the Department of Justice to the Army and were released on June 21, 1983. There are two copies, Your Honor, if you will, of the first Glisson page and there's another chart here, if I may. I'm referring to Crouchley exhibit No. 1. Crouchley, their affiant. This is with their date stamp, received June 30, 1983, Army. Your Honor will find at the bottom of the page item number one hundred forty-two. That's the Army's FOIA number corresponding to the June processing, June 1983 processing of these documents. So they got this page. In fact, they got it three times: June 1983, August 1984, and I'll explain how that occurs, and then in May 1990.
What happens then is Mr. O'Neill, apparently after reading Mr. McGinness' book, made an all encompassing request for FOIA material in November of 1983 and the stuff went -- the request went to the laboratory and they found the documents and Mr. O'Neill was informed in December of 1983 that more material had been found and it was being processed. In fact, as late as March of 1984 he was informed that the stuff had been processed by the Army, sent to me for my review and was in the works. But he files his petition on April 5, 1984.
What then happened is the entire -- the totality of the Glisson bench notes, that's Murphy Exhibit 1 of their original petition, pages one through I think forty-three, are released in August, August 7, 1984 by a FOIA officer named Andersen at the Army CID Command, having been previously numbered with a new numbering scheme by a technician named Barkley. Barkley numbered these documents at the bottom, 785. Now, that's prior to her leaving; this is according to her affidavit, prior to her leaving the CID Command in January 1984. She numbers the documents. Andersen releases them in August 1984 but they now have these numbers written on there forever.
So what happens is that when Mr. Silverglate's associate, Mr. Murphy, disovers the Karen to John note, apparently they go back and make a new FOIA request. What they get is the same documents that were released in 1984. August 1984 are released again so they get the confirmatory page in August of '84, May of 1990. They get the initial Glisson page, which they clearly understood because of their notes on it; they get it in June 1983, again in August 1984 and a third time in May 1990.
I know it's confusing, Your Honor, but that's the lineage of these documents.

THE COURT:  Well, I think I follow you. Let's go to something else.

MR. DEPUE:  Our point is, Your Honor, with respect to the Glisson notes, everything that forms the basis of this claim was in essence possessed by petitioner by August of 1984. That these annotations suggest to us these claims could have been raised just as easily back then as they are now and the probable reason for the 1990 FOIA inquiries was to create the illusion that this was newly discovered evidence or perhaps in the hopes of obtaining copies that did not bear the telltale annotations of Brian O'Neill's co-counsel.
Let me review briefly the same sequence of events with respect to the notes of Jim Frier and Karen Davidsen concerning the dark woolen fibers -- I'm sorry, Janice Green (sic). Karen Davidsen, an attorney who was then employed by Brian O'Neill, has acknowledged in an affidavit that she received those notes on July 20 of 1983. It's very difficult for them to deny the fact that they were received then because the very copies of these documents in their papers bear their date stamp. But that's not the end of the matter.
By contrast with the Glisson bench notes, there is no suggestion that confirmation was necessary here. Indeed, there's no evidence that during the 1990 FOIA inquiries any further material was obtained by petitioners relating to the dark wool fibers. So once again the issue could have been pressed in 1983 on the basis of the material they possessed, just as easily as it was pressed in 1990.

THE COURT:  So you say this claim is barred by McCleskey?

MR. DEPUE:  Absolutely, Your Honor.

THE COURT:  I think I understand your position on that.

MR. DEPUE:  Thank you, Your Honor. Now, petitioners have sought to come within two exceptions suggested in McCleskey or they think might be exceptions of McCleskey. First they say if Mr. O'Neill had these and disregarded them he must have been ineffective; he just didn't know what he was doing. Now, I think Your Honor can judge for yourself Brian O'Neill knew full well what he was doing and it took a sixty-seven page opinion from Your Honor to address the claims that Brian O'Neill raised.
But in a broader sense, we learned yesterday, two days ago from Coleman versus Thompson in the context of habeas petitions ineffective assistance of counsel claims cannot be made. This is because the Sixth Amendment does not not extend the constitutional right to counsel in habeas proceedings. There's no right --

THE COURT:  I noted that possible answer to the ineffective assistance of counsel argument. I'll hear that a little later from Mr. Silverglate on that. Your position is that Coleman, which was decided on Monday of this week, eliminates the ineffective assistance of counsel issue?

MR. DEPUE:  Precisely, Your Honor. We noted in our supplemental memorandum this was the law in the Circuit but Coleman was pending before the Supreme Court on the issue. Of course, the case now has now been decided. Even if it were to be assumed Coleman didn't bar the issue. As Strickland versus Washington makes patently clear, reasoned tactical decisions do not constitute ineffective assistance. We know by looking at those charts that the dismissal of the synthetic fibers on the hair brush was not merely an oversight. It was a tactical decision by Brian O'Neill's associates. We know also the very likely reason why not very much was made of the dark woolen clothing or the dark woolen fibers that may have arguably come from the clothing of an intruder because in that 1984 habeas petition petitioners had Stoeckley in light colored clothing on the morning after the murder and to have introduced such evidence at that time would have been atently inconsistent with that submission.
I already addressed the miscarriage of justice argument. As I have explained, none of the physical evidence that's at issue here in any way, shape or form suggests the presence of intruders. Indeed, if this common household debris had been presented to the jury in that case it could have been no different from the other items of household debris that Bernie Segal so vigorously argued suggested the presence of intruders. The outcome would have been precisely the same.
I have a few minutes left over. With that time I'm going to ask Brian Murtagh to make whatever additional comments he thinks might be appropriate, if that's all right with Your Honor?

THE COURT:  All right, sir.

MR. DEPUE:  Thank you, Your Honor.

MR. MURTAGH:  Thank you, Your Honor. May it please the court, before I address any additional issues I wonder if the court has any areas of inquiry you would specifically like me to address?

THE COURT:  Well, I may think of some.

MR. MURTAGH:  Your Honor, just to sort of clean up a couple points. Mr. Silverglate says we have no way of knowing whether the box with the slides annotated blond synthetic were in fact in the jail cell that served as the evidence room prior to the trial. Well, they were there and I don't say that -- I just ask the court to accept my representation. It's also in my affidavit at pages eighteen and nineteen and it's uncontested by Mr. Thornton.
Those exhibits, in fact everything Q-1 through Q-129 were transported by Special Agent Murray, then of the FBI, to Raleigh and kept in that cell not only before the trial but for years afterwards until the Marshal finally, understandably, said get this stuff out of here. But during that period, as Mr. DePue noted, the stuff was available pursuant to Your Honor's order in connection with the motion to re-examine the crime scene. Sometime, I think in November of 1983, Mr. O'Neill wanted to re-examine the crime scene for stuff which he alleged was still at the crime scene. We said no, it's not, it's in the evidence room and we have no objection to you looking at it and Your Honor directed we maintain all that material for his inspection and analysis. Needless to say, he never bothered to pursue it.
Your Honor, as Your Honor will recall, and I think anyone who was in this courtroom in July and August of 1979, this case wasn't about hairs or hair brushes; it was about the pajama top found on Colette's MacDonald's body and the evidence of her blood type was on it prior to being torn but the forty-eight holes in the pajama top matched the twenty-one wounds in Colette's chest when probes were inserted when the pajama top was turned right sleeve inside out. It wasn't about the absence of evidence of intruders but absence of evidence consistent with Jeffrey MacDonald's account of a struggle in the living room in which, according to him, his pajama top was torn in that room. The pajama top was punctured by an ice pick wielding assailant in that room and Your Honor may recall there was no evidence of tearing but just nice, neat punctures. And. of course, the key thing, Your Honor, is even if you had, and I seem to recall making an argument something to this effect at trial, that even if you had evidence that clearly put Helena Stoeckley in the house -- let's say she was the babysitter and her fingerprints are all over the kitchen or dining room table, it would not have changed the evidence upon which we asked the jury to convict Mr. MacDonald. That was his own account of what he said he did after the intruders had supposedly fled into the night. Because, as Your Honor may recall, it is only Jeffrey MacDonald who can move the pajama top from his body down the hall to the master bedroom and place it on Colette MacDonald's body. He's the only person that can place that in there. No way Helena Stoeckley can, had she been in the house, can change the fact that he put it on her. Her blood was on it before it was torn and that the wounds in Colette MacDonald matched the holes in the pajama top, proving that she was stabbed through the pajama top by Jeffrey MacDonald.
Now, in focusing on the black woolen fibers and some of this other miscellaneous debris we lose sight, and I'm sure it's not intentional on Mr. Silverglate's part, we lose sight of the other evidence that was under Colette MacDonald's body. I believe there were fifteen purple cotton threads that matched MacDonald's pajama top underneath her body. There was evidence about whether the body was moved or not. The jury obviously resolved that against Jeffrey MacDonald. It was clear that her body had been in contact not only with the throw rug in the master bedroom, the shag rug beneath the throw rug but also a throw rug in Kristen's room. There were fibers which connected her -- in fact, one of the ones Mr. Segal stipulated to was a fiber that connected her -- I'm sorry, I stand corrected. It was Browning's testimony which put a fiber from the throw rug in Kristen's room in Colette's hand. None of that is changed or lessened nor the probative value of it lessened by the presence of foreign fibers which probably came from the shag rug, which would be a natural repository for foreign debris.
Now, Mr. Silverglate talked in terms of the inocuous (sic) fibers that Mr. Segal stipulated to and like Your Honor, I share the, I think a moment of, how shall I put it, condonation in describing Mr. Segal as a naive attorney. Mr. Segal and I didn't get along very well but the one thing I would never say was he was less than a vigorous and aggressive advocate. We fought daily on virtually every issue, as I'm sure you recall.
The point was that Mr. Segal stipulated to the presence of these fibers on the club. That's fibers from the throw rug found near Colette MacDonald's body which had the pocket from MacDonald's pajama top with her blood on it, threads from his pajama top. Now those fibers from not only the composition of the throw rug but threads from MacDonald's pajama top were found on the club outside the house. It was not inocuous (sic) because again only MacDonald could bring the pajama top into the master bedroom at a time when, according to his account, the club is already outside the house and he never touches it. In fact, according to his description he was hit with a baseball bat. He never identified the club. In fact, he tried to show it was a foreign object not related to the house; unsuccessfully I might add.
The significance is that the club had to have been in contact with both the throw rug and now the shag rug we know from Mr. Malone's examination at a time when the pajama top threads had already gotten on top of the throw rug. That can only happen if MacDonald is in the room at the time. Otherwise the club is outside, according to his account, and he's in the living room.
Your Honor, Mr. Silverglate has argued both in his brief and in his presentation that in final argument both myself and Mr. Blackburn, whose final argument was far more eloquent than mine, I might add, which is not to say mine was eloquent at all, tried to convict MacDonald because of the absence of evidence of intruders. We did no such thing but Mr. Blackburn said, and I'm quoting from the transcript page 7120:
We aren't asking you to convict the defendant on what might have been. We are asking you to convict the defendant on what we have got. What is here, not what is not here. Not what we didn't find but what we did.
And I believe I said at a later point in the transcript, 7058 to 7060:
The Government's case rises and falls on whether the physical evidence connects the defendant beyond a reasonable doubt to the commission of this crime.
What we were arguing is precisely that. That the pajama top connected him to the crime, the presence of the threads under the body connected him to the crime. The only instance where we argued the absence of something was the absence of threads or yarns from his pajama top, splinters from the club, and blood in the living room where he described an attack had occurred.
Your Honor, indulge me a second. If I can confer with counsel. Your Honor, may it please the court, that's it unless the court has some areas it wishes me to address, that will conclude my portion of this presentation and in fact the Government's argument.

THE COURT:  Since this confirmatory note was not made available until after the motion had been filed in 1984 by Mr. O'Neill, how can you say that McCleskey still involves it?

MR. MURTAGH:  In the first place we would direct Your Honor's attention back to Mr. Depugh's (sic) argument about their initial analysis of the first page and in terms of -- we would argue that there's no need for confirmatory page. They made the connection in June of 1983 but in any event, I would point out to Your Honor that the thing was obtained in August of 1984. They were on notice prior to filing their petition that there were more laboratory bench notes coming and they went ahead and filed anyway. So it seems to me it was incumbent upon them to pursue, if they were interested and if they weren't it's not the Government's responsibility.

THE COURT:  Was this confirmatory note, so-called, made available to Mr. O'Neill prior to the oral argument?

MR. MURTAGH:  Yes, it was, Your Honor. Not only prior to the evidentiary hearing which was, as Your Honor may recall, on the Government's motion and held in September I think the 19th or 20th of 1984 and then I believe, Your Honor, and the docket entries will either prove me right or wrong but I believe the oral argument was early January of 1985. During that period, Mr. O'Neill was filing stuff virtually on a, I wouldn't say a daily basis, but there were numerous motions to augment the record, motions to supplement the record. There were a number of supplementary pleadings and there's no question that if they had been of a mind to pursue this matter, which I submit they disregarded as of June 1983 when they realized it wasn't the right hair brush, it didn't fit their theory. Point of fact, there is no evidence to connect the clear handled hair brush to any criminal activity in the crime scene.
Mr. Silverglate or Mr. Silverglate's paralegal, based upon his analysis of the photograph, said the clear handled hair brush is the one that's on the dining room side table or serving table adjacent to the kitchen door. Well, assuming he's correct on that, and I don't know that we agree with him, but assuming he's correct, that area is about as undisturbed an area of the crime scene as you could possibly find. There were Valentine cards, although none from Doctor MacDonald to his wife, in that area and her purse was there. In other words, it was clear that Mrs. MacDonald had come home that evening, put her purse down, taken her hair brush out and left it there. There was no evidence that connected that in any way to having been disturbed or rifled or the contents dumped out at any time.
Now, the so-called confirmatory bench note I think must be kept in context of the earlier note of Janice Glisson, which clearly shows they understood what they were looking for. I might add, Your Honor, that while there were certainly requests for pretrial and pre-testimonial release of laboratory notes, Mr. Segal basically asked for everything. He practically wanted me to write out my questions in advance for him. The point is, when these witnesses testified and for example Janice Glisson was qualified, because she was the principal serologist, as a serologist but it was clear they knew she had done hair and fiber analysis; it was clear they knew Steinbraug had done hair and fiber analysis; Browning was nothing but hair and fiber analysis. And with the exception of Steinbraug there was no request after the witness testified for the bench notes and the witnesses were on the stand with their bench notes it was no secret there were notes involved in this case. I ask the court to just bear that in mind in terms of the due diligence aspect of this case that they could have discovered this stuff by merely asking for it after the witnesses had testified on direct and the record is clear that they did not.
Thank you, Your Honor.

THE COURT:  All right. Thank you, Mr. Murtagh.
Now, Mr. Silverglate, you have used up exactly one hour of your time which you had but I will let you have some additional time for rebuttal. I would hope that you would be able to limit this say to about ten minutes. Can you do so?

MR. SILVERGLATE:  I believe I can, Your Honor.

THE COURT:  All right. Try your best and we will see how we do.

MR. SILVERGLATE:  Your Honor, first of all Mr. DePue argued that at their best these bench notes were flags or sign posts to the physical exhibits. The opposite is true. Had the defense found the physical exhibits the first thing they would have asked is was having had them analyzed do you have any reports? What is this? How does the Government identify it? The lab notes, the report as to what this is is clearly more important than the physical exhibit itself.
In any event, Your Honor has seen the box of slides and it is clearly misleading. You cannot fault the defense expert for seeing that box and not bothering to open it up. It is mislabeled.

THE COURT:  I don't know he didn't open it up.

MR. SILVERGLATE:  He says he never saw any such blond wig fibers.

THE COURT:  Well, if that's the answer to it but just to have a box and say he would not have opened it --

MR. SILVERGLATE:  Well, he did not open it. In any event, there's no reason he should have. It's clearly deceptively labeled, maybe not intentionally, I don't know but it's not something somebody looking for blond wig hairs would open up that box.
Second of all, Your Honor, Mr. DePue argues that there's nothing to suggest that she wore, Stoeckley wore the wig the night of the murder. Well, we have evidence she had it, she agreed she had the wig at that time. Naturally she wasn't confessing to the murders. She didn't say on the stand she wore the wig but she did say she burned the wig three days later because she was afraid it would connect her to the murder. I would say that's pretty good evidence that Stoeckley knew that wig would connect her to the murder and didn't want to admit she wore it.
Third, Mr. DePue said that Posey said she had a stringy brunette hair. In fact on page 178, page thirty-five of the appendix of excerpts from the record which we filed with our original blue brief, the rap report is reproduced, part of it, and what he said was Posey, according to Colonel Rye, he described Helena as having brunette hair and she normally wore a white hat and had long, stringy blond wig. So she had brunette hair but not a brunette wig, it was blond.
The Government makes an argument about the Transfer Theory of Locard and what is significant, what's not significant and why. That is all for the jury and they are welcome to argue that to the jury.
Government says it was MacDonald who got rid of the dark woolen clothing. Well, he got rid of whatever was in the house. It was the Government's fault, the Government gave it back to him. Had the defense known, of course, about these lab notes they would have gotten rid of nothing. It's the Government's fault. I don't see how they can put it off on MacDonald. He didn't have the duty to preserve but the Government had the duty to disclose.
With respect to all of the other unmatched fibers at the scene, Your Honor, they didn't link Stoeckley and therefore they were not important. Now, let me just refer for one moment. The Government has made a very detailed argument concerning these lab bench notes and it is a very detailed but very facile argument. The affidavits that we have filed are absolutely clear and unequivocal that neither Brian O'Neill nor Segal, nor Davidsen who worked for O'Neill, received the confirmatory note. When those files came to me, and we set out in our affidavits an entire change of custody how these files were handled, by whom they went to and when. When they came to us we went through every scrap of paper. In fact, Mr. Murphy had to where a surgical mask because he was getting asthma from all the dust. The confirmatory note was not there. The affidavits of the prior lawyers said they never saw it. I know the Government thinks they released it. It was not there. We did find all the other stuff. We found the initial so-called inventory note, we found the black wool notes. We admit that we found it, it was there.

THE COURT:  How do you account for the fact that the FOIA, you call it FOIA, I believe?

MR. SILVERGLATE:  Yes, Your Honor.

THE COURT:  The record gives this confirmatory note an August 1984 date.

MR. SILVERGLATE:  I'm sure they think they released it but they didn't release it, Your Honor. Here's the evidence. The Crouchley post-it note, Your Honor, we have to look at the text of the Crouchley post-it note.
Karen, here's the reference to the wig hairs. I think the description fifteen inches curly relates to other hairs on the brush and up to twenty-two inches relates to the synthetic hairs. This is the only reference to it that I found from FOIA. John.
Karen Davidsen filed an affidavit explaining what this is all about. She says in her affidavit she found this first tentative, what the Government says is the inventory blond hair note it's the one with the question mark. As a result of finding that, she gave Crouchley the task of trying to find more in order to get confirmation that there was blond wig hair. And he then writes this note to her, which she identified as his handwriting, Crouchley. Saying this is the only one that I found, there is nothing more. It was important enough to Davidsen, who worked for O'Neill, to send Crouchley through the FOIA releases looking for something more because this was very tantalizing but not enough. And John and this post-it note that the Government has here in yellow demonstrates that John Crouchley found nothing. Nor did John Murphy find it when he looked at the files. Your Honor, it wasn't there. It simply wasn't in the files. Given the fact that Davidsen recognized the importance of this, had she found it, had John Crouchley found it and given it to her, Your Honor can bet this would have appeared in these papers. It's the single most important thing in the case.
Can you imagine a defense lawyer in a case like this having from the Government's files proof from which the jury could at least conclude that a woman with a blond wig was present at the murder scene? It's just beyond belief that if they found it they wouldn't have used it and the Crouchley note is the key; they didn't have it. Why didn't they have it? They couldn't have gotten it. Why didn't they get it? I don't know. There's a slip-up somewhere. They admit everything they had but it's not that.

THE COURT:  But there are numbers both before and after of released information and one of which refers to this confirmatory note; is that right?

MR. SILVERGLATE:  Well, no, this is the tentative note. I'm not sure what Your Honor means. You mean this word synthetic here?

THE COURT:  No, I'm under the impression when these items are released by the Government in response to a FOIA request, that they are somewhat dated by numbers and that this number falls within a sequence of numbers which, before and after which you concede the materials were delivered.

MR. SILVERGLATE:  Your Honor, I'm not saying they didn't process it for release. I'm only saying it never made it to O'Neill's office.

THE COURT:  All right.

MR. SILVERGLATE:  That's all we are saying, Your Honor.

THE COURT:  I understand that.

MR. SILVERGLATE:  One other thing, Your Honor, I think could be misleading from the Government's presentation in 1990 when Mr. Murphy, and he went with attorney anthony Bisceglie, our FOIA expert, made the request that ultimately, as we argue, produced for the first time the confirmatory note; the Government says it produced it for the third time. Mr. Murphy went down to the archive center and with Mr. Bisceglie, went through these records themselves. This was not selected, this was not produced by any Government clerk. What happened was, and frankly I'm skeptical we would have had it even now except for this fact, the clerks down at the Army record center said to Bisceglie again, another FOIA request for MacDonald? We are pulling our hair out. Do us a favor, come down, we will open up the door. You roam through all this stuff. Please leave us alone. Murphy and Bisceglie went down there and they spent a couple days going through this stuff. That's how they found it. It was not selected out by anybody. Fortunately we had cart (sic) blanche to just roam and that's how we located it.

THE COURT:  You say that's the first time the confirmatory note's existence was ever made known to defense counsel, of any defense counsel?

MR. SILVERGLATE:  That's correct, Your Honor.

THE COURT:  All right, sir.

MR. SILVERGLATE:  And we were doing, in 1990 we had Murphy do what Crouchley was assigned by Karen Davidsen but we had Murphy do it right in the Governments own files. That's how we found them.
As for the argument, Your Honor, that there was a tactical decision made not to use them, Karen Davidsen, whose affidavit is filed along with our reply brief, Karen Davidsen on page six of her affidavit states
I have no memory of ever having seen these notes nor of having recognized their meaning and importance even if I did, in fact, come across them in Mr. O'Neill's MacDonald FOIA file during the time I worked in the MacDonald case.
It's clear she would have recognized the importance because that's what she was having Crouchley do.

THE COURT:  Miss Davidsen?

MR. SILVERGLATE:  Yes, Your Honor. With respect to Mr. Murtaug's (sic) -- that's with respect to black wool, Your Honor. She admits she didn't see them but they were not omitted. There was no strategic decision even to fail to bring up the black wool. That we admit.
Your Honor, with respect to the longest dissertation given concerning the evidence of what did or did not convict MacDonald. We can argue back and forth forever about that. All I can say is that argument is interesting but the Fourth Circuit has essentially established as law of the case here that the admission of evidence of Stoeckley's confessions would have desimated (phonetic) the Government's case and I don't see how that that, it seems to me, is our starting point. In this analysis the Government can argue whatever it wants about what was important and what wasn't but the Fourth Circuit has spoken on that point and that's where we are now bound.
I want -- I will point out to Your Honor if one accepts that Stoeckley was present along with three others at the murder scene, a lot of the Government's evidence suddenly takes on new meaning as to whom might have done what. If MacDonald was not the only living person left in the apartment with respect to placement of various evidence.
The Government makes the argument that Glisson was qualified as a serologist but the defense knew that she did some hair examinations and that when she finished testifying there was no request for her notes. As the Government is well aware, the defense would not have been entitled to any notes under the Jencks Act that Glisson did on hair because she didn't testify to her hair work. She testified to her is serology work. Only the serology, that was also, I think, a decision made by the Government not to put her on as a hair expert.
When Browning was testifying and Mr. Segal tried to ask Browning about Glisson's hair work, the Government objected. So the Government was not interested, was not eager to have Glisson testifying about hair. It certainly wouldn't voluntarily turn over 3500 material if it didn't have to. It had to turn it over for Brady and no request was needed for that because request for lab notes had already been made multipal (sic) times by defense counsel.
Now, I have one other point to make and that is this, Your Honor. I have thought a bit about a question Your Honor asked me about earlier and I want to point out that we are not saying now that Your Honor abused Your Honor's discretion in not allowing the Stoeckley hearsay into evidence. What we're saying is that Your Honor didn't have these lab notes. Had Your Honor had the lab notes, first of all I expect Your Honor would have admitted the Stoeckley hearsay. If Your Honor didn't I believe it would then have been an abuse of discretion but Your Honor has never had the occasion to examine those notes and decide whether, in Your Honor's judgment, Your Honor would have admitted the lab notes and that's the exercise we're saying should be done now by Your Honor.
And finally, a very important point that I think Your Honor has tried to have me clarify and I think I didn't do a very good job the first time. It is absolutely true that Your Honor allowed Stoeckley to testify uninjured at trial. She did not admit that she committed the murder. She had this odd gap in her memory. She remembered what she did before the murders, she remembered what she did after but between midnight and four she had no memory. Conveniently Greg Mitchell, whom she implicated in the murders and whom himself confessed to friends he committed the murders, he had the same memory gap. What an incredible coincidence.
The question is asked well why didn't she admit to the murders? Number one, she didn't have immunity. She wanted immunity; she didn't get immunity. Number two, she was asked to confess to a murder under oath, in court, in front of a judge, in front of prosecutors. It's totally reasonable she would tell her friends but not reasonable she would admit it in such a way that she would end up getting indicted for murder. That's why the hearsay confessions were so critical, as the Fourth Circuit recognized, and as a result of that not coming into evidence the Government's case was not desimated, (sic) as the Fourth Circuit said it wouldn't have been. And so while Stoeckley was allowed to testify that clearly wasn't enough. She was not about to admit the homicides in court and that's why the confessions to her friends, neighbors and associates were so critical.
I thank you, Your Honor.

THE COURT:  All right, well, before you go, Mr. Silverglate, let me ask you a brief question or two. The Government has put a new twist on the term unmatched fibers.

MR. SILVERGLATE:  Yes, Your Honor.

THE COURT:  And what is your response to that? I had understood that unmatched were that they look all over the lot and couldn't find anything that matched them. He says now, if I understand him correctly, that it simply meant they didn't undertake to match them with anything.

MR. SILVERGLATE:  Clearly from the request Mr. Murtagh made, he wrote to Frier and asked that certain unmatched fibers be matched. He was concerned about unmatched fibers and his instructions were that they make an attempt to match whatever they could and that was before this stuff was destroyed, except of course Stoeckley's wig. The reason Stoeckley's wig was destroyed, not available, was because she burned it. There's nothing we can do about that. That's not MacDonald's fault. But when Mr. Murtagh made the request that unmatched fibers be matched, clearly he was interested in having worked on the matching. The Government did whatever it could; Frier matched whatever he could. What was left unmatched, what there was no known to compare to simply was unmatched. This of course is true. My problem with the way the Government proceeded was that they assumed that if something couldn't be or wasn't matched it was forensically insignificant but from the point of view of the defense, this is simply not true. Unmatched hairs and fibers could be as significant as matched if they linked up -- if there was a foundation to link them up to other evidence in the case if they somehow supported MacDonald's version of the events. That becomes important even if unmatched. That's my response to that question, Your Honor.

THE COURT:  All right, sir. Now, do I correctly understand that the only piece of evidence, and it's disputed by the defendant and the Government as to whether or not it was made available in 1984, that the only item of evidence which you consider critical to this case that was not disclosed was this confirmatory note?

MR. SILVERGLATE:  Correct, Your Honor. Now I do have one more comment to make about that though. Under our reading of McCleskey, the fact that this evidence now before Your Honor makes a colorable claim of factual innocence which the jury had a right to consider. That's what we are saying, had a right to consider and might have changed the jury's mind in its verdict. That trumps all of these technicalities the Government has raised under McCleskey so while it is interesting to debate who had what when and I find it particularly interesting the Government is claiming that the defense could and should have known when they claimed Mr. Murtagh didn't even know about these notes until we called them to his attention. But the defense should have known about them. Aside from that, saddling the defense of the burden that the Government can't meet. The fact is under McCleskey none of these technical objections matter because this is one of the rare cases where the procedural defect is trumped by the evidence of arguable innocence. That's what I meant at the beginning of my argument when I said that the merits of this case and the procedural issues coalesce and if we are right about the merits then we win on the procedural issue. If we're wrong about the merits we lose on the procedural issue if Your Honor believes that the Government's version rather than our version as to who had what when.

THE COURT:  Finally, let me inquire, I think missing from your argument this morning or noticably (sic) absent, I might say, is any reference to the ineffectiveness of counsel with respect to this 1984 thing of Mr. O'Neill's. What do you say that the Coleman case, the most recent Supreme Court pronouncement in this area has to do with that argument?

MR. SILVERGLATE:  I believe that the Coleman decision does dispose of the ineffective assistance alternative but the way it does it is interesting. The fact is that if the ineffective assistance led to the conviction of an innocent man it doesn't matter whether he was ineffective or not ineffective. What matters is is there evidence here that an innocent person was convicted? What the sureme court is trying to do in all these decisions and it's more than trying to do, they have said this is what they are trying to do. They are trying to put less emphasis on the technical violation of constitutional rights and more on the substantive question of guilt or innocence is this a habeas which justice requires us to adjudicate and they are saying we don't care if you had effective or ineffective assistance of counsel. If the evidence is really that you did we're not going to recognize that on a second or subsequent habeas. On the other hand, if you did get convicted and you didn't do it or there's evidence from which a jury could conclude you didn't do it and if it's linked with a constitutional violation we will review the petition. The constitutional violation here is not a violation of the Sixth Amendment right to effective assistance of counsel, it was a Brady violation, a due process violation.
I think the Government and I apparently read McCleskey quite differently and I commend the issue to the only answer to count right now. Thank you, Your Honor.

THE COURT:  Let me -- you may take your seat. But I was going to say this that I seem to perceive, and it escapes me for the moment, a point that you made in your rebuttal argument which was not exactly in rebuttal of anything the Government had said. What I was going to do was to give the Government an opportunity to respond to that but with the understanding of course that you will get to go last.

MR. SILVERGLATE:  Thank you very much.

THE COURT:  Did you have something there that was raised in his rebuttal argument that you wanted to respond to briefly?

MR. MURTAGH:  Yes, sir, Your Honor. May it please the court. I thank the court for the court's indulgence. If I could try and in response to a question from the court, there are two points I would like to address.
One is this confirmatory page. Again we submit that the initial page is itself confirmatory.

THE COURT:  Well, that's a factual matter. Either you did or didn't. He says you say you did and he says you didn't.

MR. MURTAGH:  No, Your Honor, with respect there's no dispute because it's their document that they received the initial page in June of 1983. If I may, Your Honor. See, that's their date stamp not ours. The issue --

THE COURT:  You are saying that is his receiving stamp on there?

MR. MURTAGH:  Yes, that's his. By the way, it wasn't on the first copy they filed with the petition but, in any rate, that's their stamp. The dispute, Your Honor, is with respect to this second page which was numbered in 1984, 785, by Janice Barkley. Now, their point is that they are saying maybe the Government thinks it released it but we never got it. In point effect there's a reason why neither Davidsen nor Crouchley can speak to that issue. Crouchley, according to his affidavit, worked for O'Neill between May of 1983 and April of 1984. He was gone by the time this was released in August of 1984. Davidsen, according to her affidavit, page one, worked between November of 1982 and February 15, of 1984. She was gone before this page was released.
Now, what Mr. O'Neill says in his affidavit is not that I never got it. He says I never saw it. We submit --

THE COURT:  I thought he said he didn't remember seeing it.

MR. MURTAGH:  Well he says -- the point is they are on notice.

THE COURT:  I think I have your point on that.

MR. MURTAGH:  The other point, Your Honor, is with respect to this unmatched un-compared and Mr. Silverglate alluded to a request that I made to the FBI lab in December of 1978. First of all, Your Honor, I would like to point out what I was requesting that they compare were two types of items. One were un-compared, previously un-compared and therefore unmatched fibers, pink nylon but specifically a blue acryllic (sic) fiber that was compared to MacDonald's blue pajama top and was reported in the lab report as not matching MacDonald's blue pajama top. That lab report was disclosed to the defense and yes I was "greatly concerned that that be identified." in that regard I asked them to conduct further examinations.
So what Mr. Silverglate is trying, if you will, to sort of smudge together is the difference between un-compared and unmatched, and I would submit that many of the, for example, the black woolen fibers which were not known to me and are not in that request letter discovered in 1979 by Frier are un-compared, that is in 1979 there's nothing -- there are no clothing of the MacDonald household other than that which we seized as evidence, the pajamas basically, with which to compare. So it's not an unmatched fiber, it's an un-compared one.
As to Mr. Silverglate's point it was the Government's duty to preserve that clothing, I would submit if the black woolen fibers weren't discovered by Frier until 1979 we can hardly be held to the task of the Army giving them back to him in December of 1970 when the charges were dismissed and there was no further process pending at that time.

THE COURT:  All right, sir. Now, Mr. Silverglate, you get to go last.

MR. SILVERGLATE:  Your Honor is very kind and very generous and I must say it's been an absolute pleasure doing an argument in front of Your Honor this morning. Your Honor's reputation precedes Your Honor.
The two points in rebuttal, Your Honor. First of all, Government says that Crouchley and Davidsen may have left or did leave the office before the confirmatory note arrived and that's why they didn't see it. This may be. It may have arrived after they left. That's because if it arrived it would have arrived in another batch of materials but we have done everything we can. O'Neill says he didn't see it. We have combed O'Neill's file. We have no explanation for what's not in there. We are not hiding anything because we obviously disclosed we had the black wool, we disclosed we had the first note. We don't know why we didn't get the second, whether it was released but never made it, no idea Your Honor. But the ultimate issue has got to be this. Can this case turn on whether or not the confirmatory note arrived just before the argument in the prior habeas, that Davidsen and Crouchley were gone and O'Neill didn't see it. If that's what happened can a habeas under the McCleskey doctrine turn on that rather than on the question of whether there was a colorable claim of innocence made. We submit that it could be ludicrous to have this case turned on that kind of technicality which, in any event, I suppose would have to be a hearing on because if Your Honor wants to get to the bottom of it I suppose we would have to start from scratch on that set of issues.
Finally, the Government says don't confuse unmatched and un-compared. All I can say is, Your Honor, if we had the lab notes I can assure you the defense would have done the matching and the comparing, even if the Government didn't. If it was unmatched and un-compared it wasn't the defense's fault and as long as it wasn't the defense's fault then it has to result in a new trial.
I thank you, Your Honor.

THE COURT:  Thank you, sir. Gentlemen, before we adjourn let me make this observation. I have been with this case now the better part of sixteen years and it's -- well, along with another one which I have that I inherited when I first came here over twenty years ago, it's taking on some of the aspects of John Dice against John Dice but all through the litigation of this highly important and exceedingly interesting case, I have had the pleasure of hearing from excellent counsel at all stages of the proceedings. This was at the motion stage, which preceded the trial as I recall by four or some years; at the trial stage, I already commented on defense counsel at that stage; and obviously you only have to judge by the results that they obtained that the prosecution attorneys did a very able job. And all, let me add, in a most professional manner. Then next we had Mr. O'Neill whom I found to be an exceptionally able attorney, likable lawyer who made a very fine presentation of his case in 1984 or possibly '85. Well, up until the final arguments which may have be in January of '85. So it's a little odd to me to see, originally having him not exactly charged but the suggestion of ineffectiveness on his part because I had recalled that he was such an excellent lawyer and it was a real pleasure to have him in this court. And now down to today's proceedings. Mr. Silverglate, I want to commend you on the excellent job that you have done with your briefs and your presentation here in court. It's been a pleasure to have you and your associates. I have known Mr. Smith for quite some time. He used to bring me business with more frequency. I guess that's when I was doing it all here. In recent times he hasn't brought me very much, for which I'm very much obliged, but he of course, as you well know, is one of our excellent civil rights lawyers. And the Government brought us Mr. DePue and Mr. Murtagh again whom I confess some reasonable acquaintanceship from yesteryear and I just wanted to say publicly what a pleasure it's been to hear such able and competent zealous advocates present a case as complicated and as intriguing as this one has been.
You may take a recess. Let me say, of course, it happens to be vacation time. My secretary's away for another eight or ten days. We will get you a decision in this thing I hope in the reasonably near future but just when I can not predict at the moment because some of it is beyond my control at the moment. You may recess this court until further call. I will go down and speak to counsel before you leave.

End of transcript


This is to certify that the foregoing transcript of proceedings taken at the Criminal Session of United States District Court is a true and accurate transcription of the proceedings taken by me in machine shorthand and transcribed by computer under my supervision.

This the 2nd day of July 1991.

Donna J. Tomawski
Official Court Reporter
Webmaster note: 
The original misspellings of Fryer and McGiness were corrected to Frier and McGinness, respectively, in this transcript.