Fatal Vision (85 page)

"Well, Mr. Segal," said Judge Dupree, "if the Lord lets me, I am going to treat both sides equally in this case. I am going to let both sides have a full and fair hearing, and develop their cases exactly like they want to. You are going to be fed out of the same spoon. That is the rule that obtains at all times in this court. I am going to give you all the time that you need. We have spent too much time in this case here now to be talking about duplicity.

"You spent forty-five minutes yesterday afternoon qualifying—or trying to disqualify—the witness here. And then you held a press conference, apparently, and expostulated further on his lack of requirements. And it appeared on the front page of the paper this morning.

"I am not complaining about that, but I am saying, as far as giving you the full opportunity to develop whatever you want to do, I am doing that for you and I am doing that for him.

"And while I'm at it, for whatever it's worth—and I say this to both of you—when lawyers give interviews to the press, it has been my observation over the years that lawyers who are entirely confident of their position and who believe in the correctness of their cause, eschew that kind of thing. To me, it just telegraphs some weakness.

"As far as the jury is concerned, I am hoping that they are

observing their oath and are not reading anything. There is always the possibility, though, that they will. Therefore, while I don't want to muzzle anybody, I don't see why we can't stick to our knitting here in the courtroom.

"I don't give a damn what appears in the paper, myself. But when it is on the front page, they can't escape it. They had on yesterday's front page verbatim quotations as to how the defense was going to destroy some witness—Stombaugh, probably, and all that stuff.

"Here again, I don't run lawsuits. I sat out there thirty-four years, and I saw a lot of judges that came to town and professed to know more about my case in two hours than I had been able to learn in three or four years of living with it. So I wouldn't do that. I will let you run your case.

"But for whatever it is worth, I'll say that I think talking to newspapers while the trial is in progress as to what you are going to do with your evidence and so forth—I think it may come very close to transgressing the rules of professional responsibility in ensuring a fair trial for both sides."

When Segal did begin his cross-examination, however, it was with a further attack upon Stombaugh's credentials.

He had subpoenaed Stombaugh's undergraduate records from Furman College. He asked Stombaugh if he had ever taken a physics course while in college. Stombaugh said that he had.

"And that was the course you got a D in, isn't it, Mr. Stombaugh!" Segal shouted.

As government attorneys loudly objected, Judge Dupree instructed the jury to disregard Segal's remark.

"Your honor," Segal said, spinning to face the judge, "this man has been qualified as some kind of pseudo-expert. I want to find out—"

"Objection!" Brian Murtagh shouted.

"I want to know whether he has any basis for making the statements he has made," Segal said.

"Now, wait a minute," said Judge Dupree. "If you have any arguments to make, you make them here at the bench."

"I will make them wherever your honor will decide they should be made," Segal said with an air of exaggerated politeness that bordered on insolence.

"Well, I just said right here at the bench." Judge Dupree then turned to address the jury. "Members of the jury," he said, "counsel has just made a statement to the effect that this witness has qualified as some kind of pseudo-expert. The court considers that that comment was improper. The court can understand that counsel—as I've told you before—may in the heat of battle sometimes say things that on further reflection they might not have said. I ask you, however, to disregard that comment. It will be for the jury to determine whether or not this witness is an expert. As the court has said, the evidence tends to show that he is. It will also be for the jury to determine what weight, if any, his testimony is to be accorded."

By now, Bernie Segal had reached the bench, where Judge Dupree told him, "I have apologized for you about all I am going to before this jury. I don't want your client to be prejudiced before this jury by outbursts such as this last one you made. I have an obligation to look after him as well as everybody else in this case. And I want to see that it is done. If you have got any outbursts to make, or if you want to make any argument, come up here."

Segal's cross-examination, however, continued in a bitter, sarcastic vein. Focusing on Stombaugh's assertion that one of the bloodstains on the sheet could have been made by a bare shoulder, Segal said, "As a matter of fact, don't almost all of us have some kind of very fine hair on our shoulders?"

"That is right."

"Did you find any hair lines on that smear?" "No, sir."

"Did you look for any?" "Yes, sir."

"How did you look for them?" "With a magnifying glass."

"Ah!" said Segal, stepping backward and raising his eyes toward the ceiling, in mock astonishment. "We have a scientific instrument here."

"Objection!" shouted Jim Blackburn.

"All right," Segal said sharply, glaring toward Blackburn. "It's not a scientific instrument."

"Objection!"

"Members of the jury," Judge Dupree said wearily, "disregard the comment of counsel about the magnifying glass."

In regard to the bloodstains on the sheet that Stombaugh had said were made by the pajama cuffs, Segal said in accusatory fashion, "You just took the cuff and you took the bedsheet and you looked at them side by side. Is that what you did?"

"I did a little more than that, sir. I sat down and studied the stains for long periods of time."

"Did you say, 'study'?"

"Studied them, compared them, examined them, things of this

nature. A direct comparison to locate the area on that cuff that corresponded with that stain."

"Studied," Segal said scornfully. "How did you 'study' it? By looking at it?"

"Looking at it," Stombaugh agreed.

"Compared—how did you do that. By looking at it?"

"Direct comparison. Yes, sir."

"Well," Segal said, his voice suddenly rising to a shout. "Every word that you've used—every adjective—that meant only that you looked at it and you looked at it and you looked at it! Is that right, Mr. Stombaugh?"

"That is correct."

"If the jury then gives these items the same attention, they will be able to do exactly what you were able to do, is that right, Mr. Stombaugh?"

"Perhaps."

"There is no secret scientific method that you used that they are not aware of, is there?! That you haven't told us about?!" "No, sir."

"It
is just looking!"
Segal screamed.
"That is what your fabric impression testimony is about. Just looking!''

"I believe that is what I have testified to," Stombaugh said.

It was, undeniably, far from what Victor Woerheide had told Dr. Sadoff while the grand jury had been in session: that the field of fabric impressions study was the scientific equivalent of fingerprint analysis. But the jury would not be concerning itself with what Victor Woerheide had said four years earlier. The jurors would be interested only in whether—to them—the stains on the bedsheet appeared to have been made by the bloody cuffs of Jeffrey and Colette MacDonald's pajamas.

Toward the end of his cross-examination, Segal tried to invalidate the pajama top reconstruction.

"Now, you told us yesterday, Mr. Stombaugh, that you did not really do this little demonstration with the pajama top exactly the way it was on Mrs. MacDonald's body. Isn't that what you told us yesterday?"

"No, sir. We folded it—"

"Did you say that or did you not say it yesterday?" Segal interrupted sharply. "Then you can explain as long as you want."

"Object to comments of counsel," Brian Murtagh said. "It is not a comment to tell a witness he can answer," Segal said. "Your honor, I resent that. It is not a comment to say that I will give him all the chance to answer a question. It interrupts cross-examination needlessly.''

"All right, now," Judge Dupree said, 'if you have some objection to make, the customary way to do it is to come up here. I will not take any lectures from counsel from either side. If there is an objection and you want to be heard, we will hear it at the bench."

"My response, your honor," Segal said, without taking as much as a single step toward the bench, "is I do not think I was making a comment when
I
said
I
would give the witness a chance to answer."

"There was an objection before the court. I was prepared to rule on it, but we had another lecture superimposed on the subject."

"I apologize," Segal said.

"That is what I am calling to your attention."

"I did not mean to do that."

"Restate your question and we will let the witness answer."

"Yes, your honor. Let me just regather my thoughts." After a short pause Segal continued.

"Do I recall you correctly," Segal continued, "as having told us yesterday that you did not fold the pajama top in the demonstration exactly the way it appeared in the photographs?"

"We folded the pajama top as close to it as we could."

"That is the most you are willing to say about the way you folded it for your demonstration?"

"And when we folded it that way, then we observed twenty-one holes in the top."

"Before we get to the holes, I just want to understand whether, when you finished folding it, you think you got a fairly good replica of the way the garment was laid over Mrs. MacDonald's body."

"Yes, sir. I feel we did the best we could." "Well, doing the best you could—is that the same as being a pretty good replica?" "I would say so."

"Is that the strongest statement you are willing to make in support of the way the garment was folded—that that, you think, is the best you could do with it?"

"Working with what we had, we did the best we could."

"Well, now, tell us some of the ways in which your experiment in folding is really different from the photographs."

"Mr. Segal, I have been answering your question—the same one over and over—the only way I can answer it. We folded the pajama top the way it appeared in the photographs. We found twenty-one holes in the surface. The question was: Could those twenty-one holes on top be lined up with the forty-eight holes? Could this be done? And we—"

"Didn't you just simply tell them, Mr. Stombaugh,
^,,
Segal interrupted,
^‘‘
‘
Of course you can take any forty-eight holes and put them in twenty-one holes'? That that is not a scientific experiment! Did you ever tell them that?!"

"Objection!" Brian Murtagh said.

^‘
'Objection sustained," said Judge Dupree.

Sustained objections notwithstanding, Jeffrey MacDonald was exuberant by the time Segal had finished.

^‘‘
Stombaugh's the reason I'm here," MacDonald said later that day. "Him and Brian Murtagh. And Bernie just absolutely destroyed him. You've just seen their smoking gun turn into a piece of shit. If the judge had any balls at all, he'd throw the whole case out right now. He wouldn't even make us put on our defense."

In private, Segal raged against the judge in the vilest terms imaginable. He raged against Republicans, of whom Judge Dupree was one. He raged against the South. He raged against the U.S. Army and the FBI and the U.S. Supreme Court: all those forces that had conspired to present Judge Dupree with this opportunity to exercise his malevolence.

Segal seemed to bear no less antipathy toward Brian Murtagh. While it was Jim Blackburn—that courtly young Southern gentleman—who had been presenting the bulk of the prosecution case, it was Murtagh, Segal's adversary from grand jury days and surrogate for and successor to the Grand Inquisitor, Victor Worheide, who had been besting Segal in argument on the evidentiary points before Judge Dupree.