July 9, 1991

In-house Defense Memorandum re: Judge Dupree's 7/8/89 Memorandum of Decision; Where to go from here: Motion for Reconsideration? Question of improving the record

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To: Alan M. Dershowitz
Roger C. Spaeder and David A. Hickerson
Norman B. Smith
Anthony P. Bisceglie
John J. E. Markham
Philip G. Cormier
Thomas C. Viles
Andrew Good
John J. Murphy
Douglas Widmann
Chauncey B. Wood
Barbara Weintraub
Jeffrey R. MacDonald

cc: The File (Jeffrey R. MacDonald, #3766)

From: Harvey A. Silverglate

Date: July 9, 1991

RE: Judge Dupree's 7/8/89 Memorandum of Decision; Where to go from here: Motion for Reconsideration? Question of improving the record.

Not surprisingly, Judge Dupree has denied our habeas petition. A copy of his 42-page Memorandum of Decision is enclosed herewith. Note that it's dated yesterday. He obviously had it written before oral argument, and his secretary typed it yesterday, when she returned from her vacation.

As I read the opinion, I feel that we are entirely vindicated in our strategy decision to avoid an evidentiary hearing -- while not waiving one -- in which Judge Dupree would have been able to make fact-findings that would have made our task on appeal considerably more difficult. I think that we have the best possible record that we could have expected, given the material we have in our arsenal. We do have a couple of decisions to make, however, before we file a notice of appeal and make the journey to Richmond. These decisions should be made within the next few days, for if we are to file anything more in the District Court, it seems to me that it should be filed by sometime next week at the very latest. The purpose of this memo is to set out the issues that must be decided now.

The fundamental question that we face is whether we should be doing anything now, before a notice of appeal is filed, in order to perfect or improve the record on any issue.

We already intend to write to the stenographer in order to have her correct errors in the transcript of the oral argument. If she does not do so, we will have to make a motion to correct the record (Judge Dupree tape-recorded the argument, so there's a verbatim record).

Aside from this, however, prior to receiving Judge Dupree's opinion, we were working on, and were about to file, a couple of post-hearing motions in order to perfect the record. I'm enclosing drafts of those post-hearing motions, although they'll now have to be changed a bit if they are to be filed.

Post-hearing motion re: blond wig fiber confirmatory lab note.

You'll see that one of the post-hearing motions is aimed at fortifying our record on the issue of whether the "confirmatory" blond synthetic fiber lab note was turned over to the defense via FOIA prior to 1990. At oral argument, the government made an argument, for the first time, that it must have arrived at O'Neill's office after Karen Davidson and John Crouchley left O'Neill's employ, but before the proceedings were concluded on O'Neill's habeas motion. John Murphy has dug up evidence from O'Neill's file that rebuts this assertion, and it's the subject of one of the draft post-hearing motions enclosed herewith.

You will see that Judge Dupree skirts this issue -- as he must, since he cannot really make definitive factual findings on the basis of contested evidence, without holding an evidentiary hearing. (Here's just one place where the failure to hold such a hearing has helped us immensely.) See Dupree's Memorandum of Decision at 35-39. You will see that Dupree never says that the confirmatory wig note actually was available to the defense before 1990. He simply notes that enough was available early to put the defense on notice. He admits that the confirmatory note "was apparently not discovered ... until 1990" (at 36). He notes that the confirmatory note alone was not date-stamped with O'Neill's date stamp (at 36). He waffles, however. While he says that the "only document of arguable significance unavailable to O'Neill was the confirmatory lab note... ", he says that "this document appears to have been sent to O'Neill in August 1984."[1] (at 38)

In view of the waffling, I recommend that we file Murphy's #3 affidavit (draft enclosed herewith), although the grounds for filing it should be expanded to make reference to Judge Dupree's waffling. We should file the Murphy #3 affidavit, I think, both to expand the record and in support of a motion for reconsideration. My expectation is that Dupree will let it be filed, and he will then deny the motion for reconsideration.

1  "Regarding the second element of a claim under Brady, while the court is willing to accept MacDonald's assertion that the handwritten lab notes were exculpatory, there is some doubt as to whether the allegedly suppressed evidence would have actually aided the defense had the notes been available at trial. Without any evidence that saran is used in the production of human wig hair, the presence of the blond saran fibers...would have done little to corroborate MacDonald's account..." Id. at 26.

Post-hearing motion to make slide box part of record.

Likewise, we should file the motion that we've drafted (enclosed herewith), seeking to make the slide box (produced by the government at oral argument) part of the record. We now have an additional ground for doing so -- that Dupree refers to it in his Memorandum of Decision.

Protecting the record on non-waiver of evidentiary hearing.

We have been very careful in our briefs to preserve the issue of an evidentiary hearing. You'll recall that we did so in order to preserve the issue without trying to push Dupree into actually convening such a hearing and making fact-findings on contested factual issues. (See our reply brief at p. 3, fn. 4, in which we note that Dupree, while he can rule for us on the current record, would not rule against us without an evidentiary hearing.)

At the oral argument (transcript of the argument, albeit needing corrections here and there, was sent to you under separate cover Friday, so you should now have it; call John Murphy or Doug Widmann if you do not), I took advantage of the opportunity to reiterate that we would be entitled to an evidentiary hearing on McCleskey issues (see transcript at p. 92). I did not have an opportunity to reiterate that we would be entitled to one on other issues, but it is absolutely clear, I think, that at no time did we waive a right to a hearing, as preserved in our briefs.

The question arises as to whether we should file something now to make stronger our demand for an evidentiary hearing on the one contested factual issue that Judge Dupree appears to have attempted to resolve on affidavits -- whether Murtagh knew of the lab notes, and hence whether he intentionally suppressed them. (Judge Dupree finds, incidentally, that the notes are in fact exculpatory even if they would not change the outcome.) He does this in his discussion of the Alcorta issue, Memorandum of Decision at 27-30. He says that our "vicious" attack on Murtagh's good faith was "largely unsupported" (id at 28) and based on "mere speculation regarding the motivations for his actions" (id at 29). He says that "no evidence is offered to show that Murtagh was aware of the contents of the handwritten lab notes at issue" (id at 29), although he ignores entirely the substantial amount of circumstantial evidence of Murtagh's knowledge.[2] Judge Dupree also soft-pedals the testimony of the forensic witnesses, noting that they didn't testify to the exculpatory evidence because they were not asked. (Id at 29)

The question this poses, then, is simply this: Should we file a motion for reconsideration on the issue of what the government knew and when it knew it, and should we demand an evidentiary hearing on that issue? In order to do this, we would probably have to quite directly make a request for an evidentiary hearing on this issue. My fear is that such a motion, directly made, might be granted,[3] and then we would be in considerable trouble, since Dupree will whitewash the government no matter what, and he would do so on the basis of credibility findings after hearing live witnesses. I'd much rather run with the record we have -- provided that we have a good enough record to make the argument that Dupree could not make fact findings exonerating Murtagh and the lab technicians on the basis of these affidavits alone, especially in the face of the circumstantial evidence we've presented that Dupree conveniently excludes from his discussion. I consider this to be the hardest question we have to answer, but we have to answer it now.

2  Judge Dupree fails to take note of our argument that the Puretz Memorandum was evidence of Murtagh's knowledge. He also does not mention the communications between Murtagh and the forensic experts, nor the fact that the lab notes were in Murtagh's files.

3  I admit that the chances of Dupree's granting an evidentiary hearing now are less than the chances he would have done so had we demanded one earlier. However, I don't consider it that remote a possibility. Remember that when Brian O'Neill filed his motions, it was not the defense that requested the evidentiary hearing; rather it was the government and the court!

Factual issues regarding saran fibers as wig hairs.

Note how Judge Dupree handles the whole issue of whether the blond synthetic fibers from the clear-handled hairbrush, which Malone identified as saran, are consistent with wigs worn by humans, as opposed to wigs worn by dolls or mannequins. (See Memorandum of Decision at 17,[4] 19,[5]) I believe that our record on this is as good as possible. Had we tried to contest Malone's affidavit with an expert affidavit of our own, Judge Dupree well might have had a limited evidentiary hearing on this issue, and he could have killed us. As things now stand, Malone admits and Dupree finds that it could have been a mannequin wig, and Dupree notes the testimony that Stoeckley's wig was "stringy". I think this is all we need in the Fourth Circuit. I would not be in favor of trying to amplify the record on this.[6]

Other issues to be noted at this time.

Judge Dupree relies, as we predicted, on the fact that defense forensic expert John Thornton had "unfettered" access to the physical exhibits themselves. (Id at 25) He notes the mislabeling of the box of slides (Id at 25), but makes nothing of that. He expects Thornton to have found the blond wig slide under circumstances where it was effectively hidden via mislabeling, whereas he excuses Murtagh from knowledge of the lab bench notes because they were "a few isolated notations buried in hundreds of pages of handwritten lab notes ...." (Id at 26)!

I don't think that we should do anything to change the record here, except to file the motion to make the slide box part of the record (discussed supra). Our argument here is largely a legal one -- that the lab notes have more evidentiary weight than the physical exhibits, and that in any event the slides as well as the lab notes were hidden, even if the slides were "technically" available.

It is not my purpose in this memo to discuss the various issues we have on appeal, tempting though that discussion is. Rather, I'm sticking to matters about which we may want to do something now, before the record is closed. However, I cannot resist recommending that you read carefully how Judge Dupree deals with the question of whether the lab bench notes would have changed the ruling on admissibility of the Stoeckley hearsay, and how admission of the hearsay would or would not have affected the jury (at 20-23). His analysis here demonstrates, I think, why we should win this appeal. He is simply unable to deal with this problem in a manner consistent with the Fourth Circuit's prior view of the case. To say that Stoeckley was inherently "utterly unreliable" (id at 21), even in the face of physical evidence corroborating what she said, cannot be the law, for this would mean that such a person's confession can never be believed. His twisting of the Fourth Circuit's view of the impact of the Stoeckley testimony is laughable (id at 21-22). This is the government's and Dupree's Achilles Heel. This is what we have to exploit to win, and all I'm concerned with now is whether there's any thing further we need to do to enhance our record before we move on to Richmond.

4  "However, close analysis of the actual fiber evidence at issue reveals that the fibers provided little, if any support for MacDonald's account of the crimes...According to Malone, the blond synthetic fibers found in Colette's clear-handled hairbrush and discussed in the lab notes were not consistent with blond wig hair from any known wig fibers currently in the FBI laboratory reference collection. Of the four synthetic fibers from the brush..., three are composed primarily of 'saran', a substance which is not suitable for human wigs, but is used to make mannequin and doll hair, dust mops, and patio screens. MacDonald has presented no evidence that blond wig fibers have been used in the manufacture of human wigs. While MacDonald argues that Stoeckley's blond wig, which was described by one witness as 'stringy', may have been an mannequin wig, such speculation is unsupported by any evidence in the record."  Memorandum of Decision at 17.

5  "Given that the synthetic blond fibers appear not to be wig hair"...11 Id. at 19

6  In any event, we have been conducting an ongoing factual investigation on this point, and to date we've come up with no evidence that saran was in fact used in wigs designated for human cosmetic or other use. The whole question of whether or not to amplify the record on this point appears to be moot unless and until we come up with something. However, my point is that even if we were to come up with something, I like the record as it stands and would not want to jeopardize it by a factual pissing match on this question.