Fatal Vision (83 page)

Obviously alert, attentive, and sometimes even taking notes during Jim Blackburn's direct examination, the judge would lean back in his chair with his eyes closed, grimacing in exasperation or rubbing his temples as if his head ached during those periods when Segal was repetitively questioning a prosecution witness.

With even casual spectators openly remarking on the judge's expression, it seemed only logical to assume that it would, to . some degree, indicate to the jurors where his sympathies (or lack of sympathy) lay, and possibly even suggest to some where their own belonged.

It was not by body language alone, however, that Judge Dupree seemed to be placing obstacles along Jeffrey MacDonald's path to freedom. His rulings on several major evidentiary motions did much to shape the course of the trial.

He ruled, for example (over Bernie Segal's spirited objections), that the prosecution would be permitted to read extensively from the March 1970 issue of
Esquire
magazine.

"The government," Segal argued to the judge at a bench conference, "has suggested that because there was an
Esquire
magazine in which an article appeared about the Sharon Tate murders, that therefore this placed some idea in the defendant's mind.

"Your honor, we only need to trot out all the newspaper clippings. I mean, you would have to be probably a three-toed sloth hanging upside down in a tree to have lived in America in 1969-70 and not heard of the Sharon Tate and La Bianca murders.

"I mean, that is not a fact that has any special inference to be drawn. You know, when I buy a subscription to
Harper's,
I take whatever junk they send me—the good and the bad. Am I supposed to have the inference that just because there is something in there, that I chose it? Not at all. You get that with a subscription. You get a magazine. You get a subscription to it. It comes in regularly. The government says,
^‘
Ah, ha. From that fact we wish the jury to draw the conclusion that he read it'—that in fact he read all the things that they say: that in fact it was the source of information. It was the idea.

"There is just no conceivable way that makes logical sense. I mean, it imputes to the magazine some kind of compelling power, some kind of magic that the editors of this magazine and all others wish they had.

"It is just simply too remote to be sensibly put into this trial. I mean, it almost has the character of fantasy. Take an intelligent man. No one has to prove that MacDonald is intelligent, that he was literate, read newspapers, and knew what was going on in the world.

^‘
‘
And because he has a magazine subscription and they have chosen the article—what about all the other articles? Do we now get to introduce everything he had read in that last year?
^‘
Love Thy Wife.'
^‘
Be Kind to Thy Children.'
^‘
How Happy It Is in
America.' Can we introduce all that, your honor? Why not? Put that idea in his mind, too—to love his family and care for them. Why isn't that fair game?

"We will be reading
Esquire
magazine, your honor, for quite a while if the government is allowed to do this. We should also be entitled to show everything else he read within a reasonable time frame that would reflect on his state of mind. Why not all the chapters in the Bible that he read? Why not? That goes to his state of mind."

Without pointing out that it was
Kiss Me Deadly,
by Mickey Spillane, and not the Bible, that MacDonald had been reading in the time frame that immediately preceded the murders, Jim Blackburn argued for the relevancy of the
Esquire
material.

"We have done an analysis of those articles," he said. "And we know also what the defendant has said these people said— 'Acid and rain, groovy, kill the pigs.' A girl with long blond hair carrying a candle—this sort of thing.

"Now, if the government's theory is correct, there were no such individuals. If there were no such individuals, they had to be invented from somewhere. Because these magazine articles were read by the defendant—and that has been shown by some of the fingerprints that were found on those articles, and of course Ron Harrison has said in his grand jury testimony that MacDonald had read it and said it was wild, or something like that—it does show that MacDonald was aware of those articles.

"And I think that when you look at the articles and see that the word
acid,
the word
rain,
the word
pig,
a girl with long hair, and candles are in those articles—"

"Groovy?"
the judge asked.

"I think so, sir," Blackburn replied.

"Groovy
—what does that mean?" the judge asked.

"Far-out," Brian Murtagh interjected.

Then Blackburn continued: "I do think, your honor, that it is probative to the government's theory of the case and the fabrication of the story. I am not suggesting that he read it first, necessarily, and then got the idea. I would suggest that perhaps what happened is the killings took place and he remembered the article and used it. And that is where some of these words and things come from. The fabrication of the defendant's story could well have come from his having read the article a short time before these murders occurred."

"Mr. Segal says that everybody who knew anything, up to and including the three-toed sloth," the judge said, "used those same words, because every time you picked up a paper, there they were. I have no recollection of having read them, and I take four daily newspapers and have for about fifteen years. I remember something about the Manson case, but I don't read murder cases."

"The word
acid,
your honor, is part of our vernacular," Segal said. "It is found in dictionaries—"

"You are from California," the judge interrupted. "I am not sure the word
acid
is common parlance in Johnston County and Warren County and Harnett—the places where these jurors come from. Maybe some of them are sophisticated enough to have heard the term
LSD
and the use of
acid
as synonymous with it, but I am not so sure about that."

"In 1970," Segal said, "when this case was first brought, I was not from California. I was from Philadelphia, and even in Philadelphia we had heard of those things. And we were among the last to get the word on anything."

"Your honor," Brian Murtagh interposed, "the articles in the
Esquire
magazine are not limited solely to the Manson killings. There are additional articles which involve an interview by a reporter of a 'witch' in California. Apparently, they have such things in California. At least they did at that time."

"They don't have anything but pretty girls now," Judge Dupree said, "at least judging from the ones they bring here." This was a reference to one of Bernie Segal's young assistants, with whom the judge had recently enjoyed a game of tennis.

Her charms notwithstanding, he allowed the prosecution to read all that it wanted to of the March 1970 issue of
Esquire
magazine to the jury.

Segal's bitterest and most significant evidentiary struggle during this phase of the trial concerned the admissibility of Paul Stombaugh's work with the blue pajama top. It was Segal's contention that Stombaugh's work had been invalid and was unworthy of submission.

"The demonstration that he did in the laboratory did not replicate in any reasonable fashion the facts that were known," Segal argued. "The most transparent failure is that the demonstration does not bear any resemblance to the physical facts of the case. This was not an experiment designed by a forensic scientist to prove a point. It was a lawyer's idea of how to prove an argument. That is, can you make forty-eight holes in the blue pajama top fit into twenty-one holes in Mrs. MacDonald's chest?"

That Stombaugh had not included in his alignment the icepick holes in Colette's own pink pajama top was, Segal said, "a fatal flaw," since the icepick, as it penetrated her chest, would obviously have had to pass through that garment as well.

A second flaw, Segal charged, was that no evidence supported the contention that the pajama top, as refolded in the FBI laboratory, was in the same position in which it had first been found at the crime scene.

"If there are no facts to prove that the garment was in this position," Segal said, "then the fact that you could make forty-eight holes go into twenty-one holes—ignoring, of course, the pink pajama top—proves what? It prove
s I can juggle two oranges. But
what does that mean to this court? If two oranges being juggled have no relevance, the fact that I can do it has no place in the record of this case. It is a demonstration for the sake of a demonstration. It is not a demonstration for the sake of illuminating the proof of this case.

"You just can't say that everything in the world can be given to the jury. There are limits that the rules of evidence have placed even on the government's theory of the case, and I want to see those properly invoked. The potential for prejudice here is so substantial that it is unfair to the defendant to permit this.

In response, Brian Murtagh said, "We are not saying, and

Mr. Stombaugh will not testify, that the top was in precisely the same position as it was found on her body."

The government, Jim Blackburn added, contended only that Stombaugh had refolded the garment "generally" the way it appeared in crime scene photographs—with the right sleeve folded inside out and the left panel, which contained no puncture holes, trailing off alongside the body.

At that, Bernie Segal erupted. "At the grand jury, Stombaugh said he folded it
exactly
as it appeared in the pictures. That is his word—
exact.
If you try to back away from it now, his skin will be flayed all over this courtroom!"

Ignoring the outburst, Blackburn calmly reiterated for Judge Dupree the government's view of the significance of the pajama top: there were three types of blood found on it, the majority the Type A blood of Colette; at least some of that blood was on it before it was torn; MacDonald had said he'd placed it on his wife's body; the top had forty-eight puncture holes in it; doctors had testified that MacDonald had no icepick wounds; Colette, however, had twenty-one puncture holes in her chest; a pathologist had testified that these had been inflicted while her body was in a stationary position; likewise, the absence of tearing around the circumferences of the holes indicated that they had been made while the garment was stationary.

"Now if the defendant himself didn't go to bed that night before with a pajama top with forty-eight holes in it," Blackburn said, "then how did those holes get in that pajama top?"

Colette's pink pajama top, Blackburn argued, had not been included in the reconstruction simply because it was not relevant. Of course there would have been holes in Colette's pajama top: she had been wearing it when she was stabbed. The point of Stombaugh's demonstration had been to determine whether the physical evidence would support the contention that the icepick holes had been made in the blue pajama top after Jeffrey MacDonald had placed it on the body of his wife.

"Because if we can show this," Blackburn said, "we show that it is totally and utterly inconsistent with his own story. Is it prejudicial? Yes, I would say it is. That is precisely why we seek to introduce it. I don't think it is erroneously prejudical. I think it shows, frankly, that his story is wrong and that it is at variance with the facts as we know them today."

Judge Dupree agreed to let the jury hear Stombaugh's explanation of what he had done with the torn blue pajama top and to allow him to describe the conclusions to which his work had led him.

He took a less tolerant view, however, of the relevancy of Colonel Rock's report on the 1970 military hearing—the report which concluded that the charges against MacDonald were "not true."

"I am concerned about the confusion which may arise in the minds of the jurors if this kind of evidence is admitted," the judge said, during another bench conference. "Won't a jury say, 'How can this man be not guilty in the Army and be guilty in this court?' Won't an argument appeal to the jury that, 'In the Article 32 proceeding there was only required to be a finding of probable cause to prosecute. If a four-month trial there didn't result in even that marginal finding, then how on earth can we, the jury'—wouldn't they say?—'say on virtually the same evidence that this man is guilty beyond a reasonable doubt?' "

It was for precisely this reason, of course, that Segal wanted so badly to have the Rock report introduced as evidence. But to do so, Judge Dupree continued, would be to suggest to the jury that a valid judicial proceeding had already occurred and had led to a finding of not guilty. The entire trial, then, would be invalid under the constitutional protection against double jeopardy. Since, however, the double jeopardy argument had already been made, unsuccessfully, by the defense prior to trial, no suggestion that the charges against MacDonald had been "not true" in 1970 should be allowed to influence the jury's decision in 1979.