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United States v. MacDonald

United States Court of Appeals, Fourth Circuit

December 21, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JEFFREY R. MACDONALD, Defendant-Appellant.

          Argued: January 26, 2017

          Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (3:75-cr-00026-F-1; 5:06-cv-00024-F)

         ARGUED:

          Joseph Edward Zeszotarski, Jr., GAMMON, HOWARD & ZESZOTARSKI, PLLC, Raleigh, North Carolina, for Appellant.

          John Stuart Bruce, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

         ON BRIEF:

          Leslie K. Cooley, Assistant United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

          Before MOTZ, KING, and HARRIS, Circuit Judges.

          KING, CIRCUIT JUDGE

         Over the last four decades, we have repeatedly been called upon to review Jeffrey R. MacDonald's trial and convictions in the Eastern District of North Carolina for the murders in 1970 of his pregnant wife and their two young daughters at Fort Bragg. In April 2011, we remanded for further proceedings on two habeas corpus claims being pursued by way of a successive 28 U.S.C. § 2255 motion - a prosecutorial misconduct claim based on the newly discovered evidence of former Deputy U.S. Marshal Jimmy Britt (the "Britt claim"), plus a freestanding actual innocence claim premised on the results of DNA testing (the "DNA claim"). See United States v. MacDonald, 641 F.3d 596 (4th Cir. 2011). Thereafter, in July 2014, the district court ruled that MacDonald has failed to make the evidentiary showing necessary to pursue the Britt and DNA claims by successive § 2255 motion, and that he has also failed, in any event, to establish the merits of the Britt claim or the DNA claim. See United States v. MacDonald, 32 F.Supp.3d 608 (E.D. N.C. 2014). We granted MacDonald a certificate of appealability under 28 U.S.C. § 2253 and, as explained herein, now affirm the district court's judgment denying the § 2255 motion.[1]

         I.

         A.

         As detailed in our 2011 decision, see MacDonald, 641 F.3d at 599-603, the brutal murders of MacDonald's wife and two daughters occurred in the family's Fort Bragg apartment on February 17, 1970. At the time, MacDonald was a physician and Captain in the U.S. Army Medical Corps whose training and work included emergency medicine and surgery. He was initially charged with the murders by the Army, but those charges were eventually dismissed. In January 1975, MacDonald was indicted by the federal grand jury in the Eastern District of North Carolina. As a result of a series of pretrial motions and interlocutory appeals, MacDonald's trial did not begin until July 1979. At the conclusion of the seven-week trial, the jury found MacDonald guilty of one count of first-degree murder and two counts of second-degree murder. His convictions resulted in three consecutive life terms of imprisonment and were ultimately affirmed on direct appeal. Between 1984 and 1997, MacDonald filed a series of motions for postconviction relief, including § 2255 motions. MacDonald did not succeed on any of those motions or in the related appeals, except that, in 1997, we granted his request for DNA testing and remanded for that limited purpose.[2]

         The ensuing proceedings have involved the claims now before us, i.e., the Britt and DNA claims. See MacDonald, 641 F.3d at 603-07. In January 2006, before the DNA testing was completed, we granted MacDonald prefiling authorization for the successive § 2255 motion raising the Britt claim. See 28 U.S.C. § 2244(b)(3). That is, we determined that the § 2255 motion makes a prima facie showing that it satisfies § 2255(h). See United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003) ("The court of appeals must examine the application to determine whether it contains any claim that satisfies § 2244(b)(2) (for state prisoners) or § 2255[(h)] (for federal prisoners)."). In pertinent part, a successive motion can be sustained under § 2255(h) if it contains a claim based on "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense." See 28 U.S.C. § 2255(h)(1). Pursuant to § 2244(b)(4), however, we left it to the district court to conduct a more searching assessment of whether the Britt claim satisfies § 2255(h)(1). See Winestock, 340 F.3d at 205 ("When the application is thereafter submitted to the district court, that court must examine each claim and dismiss those that are barred under [§ 2244(b)(2) or § 2255(h)].").

         In March 2006, shortly after the § 2255 motion was submitted to the district court, the results of the DNA testing finally became available. MacDonald promptly moved to add the DNA claim as a predicate to the pending § 2255 motion, as well as to have the DNA test results considered as part of the "evidence as a whole" in the court's assessment of the Britt claim. Separately, MacDonald submitted a mass of other evidence - including evidence excluded at trial, evidence submitted with prior unsuccessful motions for postconviction relief, and evidence more recently discovered - that he contended was also part of the "evidence as a whole."

         By its decision of November 2008, the district court ruled that the DNA claim's absence from the § 2255 motion at the time of prefiling authorization deprived the court of jurisdiction over that claim. See United States v. MacDonald, No. 3:75-cr-00026 (E.D. N.C. Nov. 4, 2008), ECF No. 150 (unpublished). The court also excluded the DNA test results and the other evidence submitted by MacDonald from its assessment of the Britt claim. The court then decided, focusing on the facts alleged in support of the Britt claim and on the evidence admitted at trial, that MacDonald had not made the evidentiary showing necessary to sustain the § 2255 motion.

         On appeal, we concluded that the district court had taken an "overly restrictive view of what constitutes the 'evidence as a whole, '" erroneously omitting the DNA test results and other non-trial evidence from its assessment of the Britt claim. See MacDonald, 641 F.3d at 614. We thus remanded "for a fresh analysis of whether the Britt claim satisfies the applicable standard of § 2255(h)(1)." Id.[3] Additionally, we determined that the court had erred in deeming itself to be without jurisdiction over the DNA claim, and that the court instead should have considered adding the DNA claim to the § 2255 motion under Rule 15(a) of the Federal Rules of Civil Procedure. Id. at 615-16. Rather than instructing the court to conduct a belated Rule 15(a) evaluation on remand, we simply granted MacDonald prefiling authorization for the DNA claim.

         B.

         At bottom, by our 2011 decision, we remanded for the district court to assess the Britt and DNA claims under § 2255(h)(1), and for such other and further proceedings as may be appropriate. In so doing, we examined various requirements for successive § 2255 motions engendered by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Most importantly, we recognized that § 2255(h)(1) obliges the movant "to proffer some new evidence in support of his habeas corpus claim." See MacDonald, 641 F.3d at 612 (citing § 2255(h)(1)'s requirement for "newly discovered evidence"). Section 2255(h)(1) then requires the court to determine whether that new evidence, "if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense."

         To define what constitutes the "evidence as a whole" for purposes of a § 2255(h)(1) assessment, we relied on pre-AEDPA precedent from which § 2255(h)(1) derived, including the Supreme Court's decision in Schlup v. Delo, 513 U.S. 298 (1995). We discerned that "the 'evidence as a whole' is exactly that: all the evidence put before the court at the time of its . . . § 2255(h)(1) evaluation." See MacDonald, 641 F.3d at 610. We elaborated that the court must make its "§ 2255(h)(1) determination - unbounded 'by the rules of admissibility that would govern at trial' - based on 'all the evidence, including that alleged to have been illegally admitted [and that] tenably claimed to have been wrongly excluded or to have become available only after the trial.'" Id. at 612 (alteration in original) (quoting Schlup, 513 U.S. at 327-28). In other words, "the 'court must consider all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under [evidentiary rules].'" Id. (alteration in original) (quoting House v. Bell, 547 U.S. 518, 538 (2006) (explaining Schlup)). We cautioned, however, that the movant is not entitled to "the benefit of every doubt." Id. Rather, "the court must give 'due regard to any unreliability of' the evidence and 'may have to make some credibility assessments.'" Id. at 612-13 (quoting Schlup, 513 U.S. at 328, 330).

         The § 2255(h)(1) determination, as we explained, requires the "court to assess how reasonable jurors would react to the overall, newly supplemented record." See MacDonald, 641 F.3d at 613 (quoting House, 547 U.S. at 538). If the court rules in the movant's favor under § 2255(h)(1), the movant merely passes a procedural bar to having his habeas corpus claim considered on its merits. That is, the movant remains "obliged to prove . . . that claim before obtaining any § 2255 relief thereon." Id. at 614.

         II.

         To inform its procedural and merits assessments of the Britt and DNA claims on remand, the district court conducted a seven-day evidentiary hearing in September 2012 and obtained post-hearing memoranda from MacDonald and the government. In its decision of July 2014, the court provided a lengthy and detailed chronicle of the evidence underlying the Britt and DNA claims and the other 28 U.S.C. § 2255(h)(1) "evidence as a whole." See MacDonald, 32 F.Supp.3d at 619-86. At the outset, the court explained that - rather than attempting to identify every piece of evidence it had reviewed - it endeavored to highlight the evidence deemed most significant by the parties. The court's decision described evidence admitted, and excluded, at the 1979 trial, as well as evidence submitted between 1984 and 1997 with MacDonald's various unsuccessful motions for postconviction relief. The decision also detailed later-discovered evidence, including, but not limited to, the evidence underlying the Britt and DNA claims. We also have conducted a comprehensive review of the record and now present our own summary of key evidence.[4]

         A.

         The 1979 murder trial, at the federal courthouse in Raleigh, focused on competing accounts of the murders of MacDonald's pregnant wife, Colette, and their daughters, five-year-old Kimberly and two-year-old Kristen.[5] As MacDonald has described it, the day preceding the murders - February 16, 1970 - was an ordinary one. Around 6:00 a.m., MacDonald completed a twenty-four-hour shift at a civilian hospital where he "moonlighted" for extra income, and then he made the sixty-mile drive back to his family's Fort Bragg apartment. MacDonald ate breakfast at home, worked on official military duties throughout the day on Fort Bragg, and, shortly after 5:00 p.m., took Kimberly and Kristen to feed their pony. That evening, the family had dinner together in the apartment, and then MacDonald stayed there with Kimberly and Kristen while Colette attended a class at the Fort Bragg campus of North Carolina State University. Colette returned home at about 9:40 p.m. after stopping at a convenience store for milk, and she and MacDonald watched television together in the living room while the girls slept in their bedrooms.

         After Colette retired to the master bedroom, according to MacDonald, he finished a television show and washed dishes in the kitchen. At some point, MacDonald heard Kristen cry in her bedroom, and he took her a bottle of milk to get her back to sleep in her bed. He also listened to the radio while lounging on the living room couch and reading a crime novel into the first hours of February 17, 1970. Around 2:00 or 2:15 a.m., MacDonald went to the master bedroom, only to discover that Kristen had crawled into bed with Colette and wet MacDonald's side of the bed. MacDonald carried Kristen to her bedroom, took a blanket to the living room, and, within a few minutes, fell asleep on the couch. As was usual, MacDonald had left two lights on - a light in the kitchen that gave some illumination to the nearby living room, and a light in the family's shared bathroom between their three bedrooms.

         It is what transpired next in the MacDonalds' apartment in the early morning hours of February 17, 1970, that has been most vigorously disputed by MacDonald, on the one hand, and by the government, on the other. In MacDonald's account, his wife and daughters were slaughtered by a group of intruders who also assaulted him. MacDonald became aware of the intruders when he was awakened suddenly in the living room by Colette's and Kimberly's screams and cries for help from the bedroom area at the other end of the apartment's hallway. As MacDonald arose from the couch in response, he saw three men with short, military-style haircuts and a woman with blond hair and a white floppy hat who appeared to be carrying a lighted candle and chanting, "Acid is groovy; kill the pigs." MacDonald engaged in a battle with the male intruders in the living room for less than a minute. The trio assaulted MacDonald with a baseball-batlike club, as well as a knife and an ice pick. During the encounter, MacDonald's blue pajama top was either ripped from around his back or pulled over his head. The blue pajama top then became wrapped around his wrists and hands. Once that happened, MacDonald used the pajama top to protect his chest from a series of punches and stabs. He sustained one significant laceration before being knocked unconscious. When MacDonald awoke later lying facedown over the step between the floors of the living room and the hallway leading to the bedrooms, the intruders were gone, and his family was dead.

         On the word of MacDonald, his subsequent actions included the following, though not entirely in this order: removing his puncture-hole-filled blue pajama top from his wrists and hands; rotating between his lifeless wife and daughters in their respective bedrooms while unsuccessfully attempting to revive them; pulling a knife from Colette's chest and throwing the knife away from her within the master bedroom; laying his blue pajama top over Colette; covering Colette with a second item, evidently a white Hilton hotel bathmat, that he took from a nearby green vinyl-upholstered chair; checking his own wounds in the bathroom; and using the master bedroom and kitchen telephones to request help from medics and military police. Finally, MacDonald lost consciousness once again, ending up on the master bedroom floor with Colette.

         MacDonald subsequently identified the alleged female intruder as a young local drug user named Helena Stoeckley who had emerged as a suspect due to, inter alia, the blond wig and floppy hat she was known to wear. Under the government's theory, however, MacDonald concocted the attack by intruders and staged the crime scene to conceal that he was the perpetrator. At trial, the government sought to prove that MacDonald proffered a false exculpatory statement - a bogus and convoluted story - evidencing consciousness of guilt. The prosecutors relied on physical evidence tending to implicate MacDonald in the murders, as well as a dearth of evidence substantiating MacDonald's account of any homicidal home invaders, including Stoeckley.

         1.

         The government's trial evidence reflected that MacDonald summoned help by telephone at approximately 3:45 a.m. on February 17, 1970. The military police officers dispatched to the MacDonalds' apartment found an apparently unconscious MacDonald next to and partly covering his wife Colette's lifeless and bloodied body on the master bedroom floor. The similarly lifeless and bloodied bodies of daughters Kimberly and Kristen were on their beds in their bedrooms. Kristen had been stabbed more than thirty times, and Colette and Kimberly had been both clubbed and stabbed repeatedly. MacDonald also had multiple wounds, but just the single laceration of any significance, in his right chest. He was hospitalized for a resulting pneumothorax, or partially collapsed lung.

          a.

         As described by the first responders, it had been a cold, rainy, windy night, and there had been little activity on Fort Bragg. When the military police officers arrived at the MacDonalds' ground-level apartment, the front door was locked, but an officer was able to enter the apartment's utility room through a pair of rear exterior doors - a closed but unlocked screen door and a wood door that was wide open. In the master bedroom adjacent to the utility room, the officers spotted MacDonald lying with Colette's body on the floor. During an immediate search of the remainder of the apartment, the officers saw the bodies of Kimberly and Kristen on their beds.

         When found by the military police officers, MacDonald was clad only in blue pajama pants. The officers initially thought MacDonald was dead, but then saw him stir and gave him mouth-to-mouth resuscitation. A struggle occurred as MacDonald attempted to get up and the officers restrained him. MacDonald sought information about the well-being of his wife and daughters. He also told the officers that he had been stabbed and that four intruders had come into the apartment. According to the officers, MacDonald indicated that the intruders were drug-crazed "hippies" and generally described the three men and blond-haired woman in the floppy hat. Medics and officers soon removed MacDonald from the apartment and transported him by ambulance to Fort Bragg's Womack Army Hospital.

         Around that same time, special agents and other investigators with the Army's Criminal Investigation Division (the "CID") arrived at the apartment and began processing the crime scene. Among other investigatory activities, the CID team confirmed the deaths of Colette, Kimberly, and Kristen; drew outlines of their bodies; removed the bodies from the apartment for autopsies; and took a multitude of photographs, both with and without the bodies present. The investigators also collected potential physical evidence, including four suspected murder weapons, a variety of bloodstained household items, blood scrapings from immovable objects, and numerous hairs, fibers, and latent palm and fingerprints.

         One of the suspected murder weapons seized by the CID team was a Geneva Forge-brand paring knife with a bent blade that had been found on the master bedroom floor. Others were an Old Hickory-brand paring knife and an ice pick discovered outside the rear entrance to the apartment under a large bush. The last suspected murder weapon was a virtually rectangular piece of lumber, approximately three feet long and just less than two inches wide and two inches deep, located on the ground near the bush. Little or no blood was visible on either knife or the ice pick, but blood was evident on the piece of lumber. Additionally, the piece of lumber bore various fibers - including two purple sewing threads - as well as some dried white- and cream-colored paint. Concerned about the bloodstained piece of lumber's exposure to continuing rain, a CID agent marked its location on the ground, placed it in a clean cardboard box, and, without re-entering the apartment, took it to his police car and secured it in the trunk.

         As observed by the CID, lumber had been used on projects within the apartment, including homemade closet shelves. There were scrap pieces of lumber inside the apartment, in the utility room, and outside the rear entrance to the apartment, in an open well and in a locked storage shed. Both a piece of lumber and a pair of used latex surgeon's gloves in the storage shed were stained with dried paint that looked like the paint on the bloodstained piece of lumber. Similar paint covered the headboard and footboard of Kimberly's bed and a wood slat supporting that bed.

         In the master bedroom, the CID team documented that Colette's body was lying on a shag area rug that covered much of the wood floor. Her head was close to, but not touching, the green vinyl-upholstered chair. Colette was clothed in pink two-piece pajamas. There were thirty puncture holes and eighteen cuts in her pajama top, and no puncture holes or cuts in her pajama pants. Blood was all over the pink pajamas, including heavy stains below the knees of the pants.

         The pullover-style top matching MacDonald's blue pajama pants was covering Colette's chest, and the white Hilton hotel bathmat was over her abdomen. Both the blue pajama top and the bathmat were bloodstained. The blue pajama top was haphazardly folded, with its right arm inside-out, and almost completely atop Colette. The exception was the blue pajama top's left arm, which trailed out over the floor. There were forty-eight puncture holes in the blue pajama top, along with two cuts. The blue pajama top also had a tear down its front panel from its V-neck and additional tears at seams in its left side, left shoulder, and left sleeve and cuff. A bloodstained pocket that apparently had been detached from the blue pajama top was resting on a bloodstained throw rug near Colette's feet.

         The word "PIG" was written in blood, in capital letters that were each about eight inches tall, on the headboard of the master bed. The bed's bottom sheet had a large urine stain on one side and was partially loose from the mattress. The top sheet and bedspread, both bloodstained, were in a pile on the master bedroom floor near the door to the hallway. Blood was spattered on the walls, ceiling, and some fixtures of the master bedroom, such as radiators. There was also blood on various portions of that room's area rug, including under and around Colette's body. The master bedroom telephone's handset was off the hook and hanging by its cord over the side of the dresser holding the telephone's base.

         The CID team found wood splinters throughout the master bedroom. For example, one splinter, approximately three inches long, was in a blood clot beneath Colette's head. Another splinter of similar length was near the largest bloodstain in the master bedroom's area rug. Splinters were on the portion of the area rug within the outline drawn by investigators of Colette's trunk and limbs, as well as the portion of the area rug adjacent to Colette's left hand and arm. A splinter was among debris collected from Colette's hands, which also included loose hairs and various fibers.

         Additionally, the CID team's search of the master bedroom yielded sixty purple sewing threads - similar in appearance to the threads stuck to the bloodstained piece of lumber found outside the apartment - plus seventeen blue fabric yarns and a single blue-black sewing thread. In many places where there were splinters, there were also threads and yarns. Three of the purple threads were with the splinter in the blood clot beneath Colette's head, and three more purple threads were with the splinter near the largest bloodstain in the area rug. Fifteen purple threads and one blue yarn were on the portion of the area rug within the outline of Colette's trunk and limbs, largely in the area that had been below her buttocks. Twelve purple threads and the single blue-black thread were on the portion of the area rug adjacent to Colette's left hand and arm.

         The locations of the other threads and yarns collected from the master bedroom included the following: one of Colette's forearms (two blue yarns); the throw rug near Colette's feet (three purple threads and four blue yarns); the bottom sheet and a pillowcase on the master bed (nineteen purple threads and nine blue yarns); the portion of the area rug near a corner of the master bed's footboard (two purple threads); the floor between the wall and the master bed's headboard, in the area where "PIG" was written on the headboard in blood (one purple thread); and the bedspread in the pile of bedding on the floor (two purple threads and one blue yarn). The CID team retrieved a bloodstained hair twisted around one of the purple threads from the bedspread, as well as two hairs from the bottom sheet on the master bed.

         In the top sheet in the pile of bedding on the master bedroom floor, there was a bloodstained piece of latex that appeared to be a finger section of a glove. There was another bloodstained piece of latex on the area rug near Colette's left elbow. Additional pieces of latex were also found within the master bedroom.

         Elsewhere in the apartment, Kimberly's body was tucked into the bed in her bedroom, with the covers pulled up to her chest area. She was clothed in a bloodstained nightgown that had no puncture holes or cuts. Kimberly was lying with the right side of her head exposed and the left side of her head against a pillow. The CID team collected fourteen purple sewing threads and five blue fabric yarns from Kimberly's bed, including several that were found beneath the covers once they were pulled back. There also were splinters on the bed and bloodstains and spatter on the nearby wall.

         Across the hallway, Kristen's body was on the bed in her bedroom, with the covers pulled up to her waist. Kristen was wearing two-piece pajamas and an undershirt, all bloodstained. Nine cuts and eleven puncture holes were in her undershirt; twenty-five cuts but no puncture holes were in her pajama top; and no cuts or puncture holes were in her pajama pants. Among the debris collected by the investigators from Kristen's bed were one purple sewing thread and one blue fabric yarn found on the bedspread, and several splinters discovered on the bottom sheet. There were bloodstains throughout Kristen's bedding, including a large soaking stain on her top sheet. There was blood spatter on the wall above the bed, and a large pool of blood with other smaller bloodstains on the wood floor next to the bed. A bloodstained and broken acrylic hair tie was nearby on a bloodstained throw rug. On the wood floor at the entrance to the hallway, there were two footprints made in blood - one of a bare left foot and the other of a bare right foot - positioned as if their maker had been exiting Kristen's bedroom.

         There was blood throughout the portion of the hallway between the bedrooms and the family's shared bathroom, including a large bloodstain on a rug covering the wood hallway floor just outside the master bedroom. In the bathroom, in and around the sink, there were blood drops, other bloodstains, and hairs, some bloodstained. There were also bloodstains on a stepladder and a wicker stool. A mirror was hanging on the wall above the bathroom sink. On the pair of sliding doors to the linen closet adjacent to the bathroom, three small stripes of blood were located about six feet above the floor at the doors' juncture. The linen closet held a large quantity of medical supplies, including disposable scalpel blades and a variety of prescription drugs and other medications.

         At the other end of the hallway - in the area where MacDonald said he awoke after battling intruders in the living room and being knocked unconscious - there was a single bloodstain. That bloodstain was on the wood hallway floor just before the step between the hallway (on the upper side) and the living room (on the lower side). Several blue fibers or threads, clustered in a bunch or ball, were on the hallway floor in the vicinity of the bloodstain.

         In the living room, the rectangular coffee table that sat in front of the couch was overturned and resting on the long side that had been farthest from the couch. On the living room floor beneath that side of the coffee table was the March 1970 issue of Esquire magazine, covered by a boxed children's game. There was a finger-size smear of blood above the "q" and "u" in "Esquire" on the magazine's cover page, which featured the then-recent murders committed in California by Charles Manson and his followers. Additional items on the living room floor included an overturned flower pot and MacDonald's eyeglasses, which had a pink fiber caught in a hinge and a small spot of blood on one lens. The only other suspected bloodstains in the living room were three stains on the wall above the couch. The CID team searched the living room and its area rug for splinters and for fibers considered to be of evidentiary value, including purple and blue-black sewing threads and blue fabric yarns like those found in the bedrooms and on the bloodstained piece of lumber. The investigators' search of the living room, however, yielded no such fibers and no splinters.

         There were two rooms off the living room, i.e., the dining room and the separate kitchen. Nothing seemed to be askew in the dining room, where several Valentine's Day cards were on display atop a buffet. In the kitchen, however, drops of blood were on the floor in front of the sink. The cabinet beneath the sink held a box of Perry-brand latex surgeon's gloves, and the underside of the sink within that cabinet was bloodstained. There were also a pair of latex surgeon's gloves and a pair of yellow dish-washing gloves sitting beside the sink. The handset of the kitchen telephone was off the hook.

         Despite the CID team's search for evidence consistent with MacDonald's account of murderous intruders, the investigators did not find anything matching MacDonald's description of the baseball-bat-like club used to attack him. There were no signs of forced entry into the apartment or of the premises being rummaged for items to steal. Indeed, many items that likely would have been irresistible to drug-abusing burglars - such as jewelry, silver serving pieces, a rifle, and the prescription drugs and other medications - were within easy view and unstolen. Although it was susceptible to footprints, a sandy strip of soil that ran between a paved walkway and the apartment's exterior contained no footprints, including around the rear entrance into the utility room. The only wet spots and grass on the floors inside the apartment were attributed to the first responders.

         Nevertheless, the CID team did collect three samples of dried wax from the apartment - found on the coffee table in the living room, a chair in Kimberly's bedroom, and Kimberly's bedspread - that might corroborate the presence of the female intruder described by MacDonald as perhaps carrying a candle. The investigators took fourteen candles from the apartment for comparison to the wax samples. They also recorded dozens of latent palm and fingerprints.

         Most of the physical evidence amassed from the crime scene was examined at two facilities, the CID laboratory at Fort Gordon in Georgia and the FBI laboratory in Washington, D.C. The autopsies of Colette, Kimberly, and Kristen were performed locally at Womack Army Hospital. Their clothing was removed prior to the autopsies, and loose hairs, fibers, and other debris were collected from their bodies, all to be examined with the other physical evidence.

         b.

         According to the trial evidence of the Womack Army Hospital pathologist who conducted Colette's autopsy, his examination revealed that Colette suffered numerous blunt force injuries - that is, clubbing wounds - mainly to her head, arms, and hands. Multiple blows to Colette's head resulted in five separate ragged tears in the skin on her forehead and scalp. Some of those lacerations were four or five inches long, and the skin was gaping, so that Colette's skull was easy to see. There was extensive bruising and hemorrhaging in the soft tissue surrounding the lacerations, and there were additional bruises across Colette's chin and in her right temple area. Colette's skull was fractured, and her brain was somewhat damaged. The head wounds were consistent with a direct frontal assault by someone wielding the bloodstained piece of lumber found on the ground outside the MacDonalds' apartment. Colette also had a sharp-angled pattern bruise on her chest consistent with the same piece of lumber.

         The pathologist determined that blunt force injuries to Colette's arms and hands appeared to be defensive wounds, incurred while she attempted to fend off blows to other parts of her body. Both bones in her right arm were broken, a bone in her left arm was broken in two places, and the skin of each arm was lacerated, scraped, and bruised. In addition to blunt force injuries, there was a stab wound on Colette's left hand that likely was made by a sharp instrument.

         Colette's autopsy revealed that she sustained additional, more significant stab wounds in her neck and chest - wounds that were consistent with a knife. There were nine knife-like wounds in Colette's neck, going through the skin and into soft tissue. Colette's trachea was penetrated in two places, and her thyroid was lacerated twice. There were seven knife-like wounds in Colette's chest, going through the skin and chest wall into the chest cavity. Both of Colette's lungs and her pulmonary artery were lacerated, and the chest wounds caused substantial bleeding. Each of the chest wounds was fairly perpendicular, indicating that a knife blade went straight into Colette, at about a ninety-degree angle to her body, while she was lying flat on the floor. Only one chest wound was indicative of a twisting knife; each of the other knife-like wounds was apparently made by a knife going straight in and coming straight out.

         The pathologist and an FBI laboratory analyst deemed Colette's knife-like wounds, as well as the cuts in the pink pajama top that Colette was wearing, to be consistent with the Old Hickory knife found under a bush outside the apartment. Tests performed by the laboratory analyst showed that the Old Hickory knife's blade, being sharp, produced "clean" cuts in fabric like those in Colette's pink pajama top. The laboratory analyst also tested the Geneva Forge knife found on the master bedroom floor; he observed that the bent blade of that knife was dull and thus produced "tearing" cuts inconsistent with the pink pajama top's clean cuts.

         Further autopsy findings were that Colette had twenty-one puncture wounds in the front area of her chest and three puncture wounds in her upper left arm, each consistent with an ice pick such as that found with the Old Hickory knife. Many of the ice-pick-like wounds were superficial, and the five or so that passed through the chest wall did not appear to involve serious damage to any organ. Like the knife-like wounds, the ice-picklike wounds were perpendicular and thus likely inflicted upon Colette while she was lying flat on the floor. Furthermore, the ice-pick-like wounds were symmetrical, without any tearing, suggesting that Colette's body was motionless when the wounds were made - a conclusion corroborated by the cleanness of the puncture holes in Colette's pink pajama top.

         The pathologist did not attribute Colette's death to her ice-pick-like wounds or to her extensive blunt force injuries. He explained that those injuries were survivable, though clubbing wounds to the center of Colette's head and to her chin may have rendered her unconscious. In the pathologist's view, Colette bled to death from some of her knife-like wounds, specifically those in her chest.

         Another Womack Army Hospital pathologist performed the autopsies of five-year-old Kimberly and two-year-old Kristen. According to that pathologist's trial evidence, Kimberly's autopsy revealed that she sustained two major clubbing wounds - one to each side of her head - consistent with the bloodstained piece of lumber. Those blunt force injuries involved external bruising and abrasions, the fracture of Kimberly's nose, and the protrusion of a small portion of bone through the left side of her face. The more extensive external bruising occurred on the right side of Kimberly's head, across her right cheekbone and ear. Beneath those bruises, the right side of Kimberly's skull was fractured. There were additional fractures at the base of her skull and associated bruising of her brain. Kimberly also had eight to ten stab wounds in the right front side of her neck that caused some bleeding and transected her windpipe. Those wounds were consistent with the Old Hickory knife and made at close to a ninety-degree angle.

         The pathologist opined that Kimberly's clubbing wounds occurred first and that the associated brain injury was the most prominent factor in her death. The brain injury may have killed Kimberly immediately; if not, it likely left her near death and unconscious. According to the pathologist, the knife-like wounds were only then inflicted upon Kimberly and could have contributed to her demise.

         The pathologist's separate examination of Kristen showed that she had seventeen gaping stab wounds - four in the center of her chest, one in her neck, two above one of her shoulder blades, and ten in the middle of her back - apparently made by a knife at about a ninety-degree angle. Related to those knife-like wounds, Kristen's thyroid gland and windpipe were lacerated, and her heart was penetrated four times, twice from the front and twice from the back. The pathologist and the FBI laboratory analyst determined that the knife-like-wounds and the clean cuts in Kristen's pajama top and undershirt were consistent with the Old Hickory knife.

         There were several additional cuts on Kristen's hands and fingers, including a deep and significant cut to the ring finger of her right hand, that appeared to be defensive wounds or wounds inflicted ancillary to more serious injuries. Kristen also had multiple puncture wounds, including five in the center of her chest that penetrated deeply and ten in an "S" pattern on the right side of her chest that were mostly superficial. In the view of the pathologist and the laboratory analyst, the puncture wounds and the puncture holes in Kristen's undershirt were consistent with an ice pick. The absence of puncture holes in Kristen's pajama top indicated that her assailant lifted the pajama top before inflicting the ice-pick-like wounds. Ultimately, the pathologist concluded that Kristen died from the knife-like wounds to her heart, which caused a critical loss of blood and may also have stopped the heart from beating.

         c.

         The trial evidence established that, while the autopsies of Colette, Kimberly, and Kristen were being performed, MacDonald was being treated at Womack Army Hospital. He had arrived at the emergency room still wearing his blue pajama pants and with blood smeared on his face and hands. The clinical technician who first examined MacDonald noted his vital signs were stable and just one of his wounds - the laceration in his right chest that resulted in the pneumothorax - required bandaging. MacDonald's blue pajama pants were removed for examination of his lower extremities and left on the floor of the treatment area. During that period, the technician observed that the blue pajama pants were bloodstained and torn. After the CID agents had visited the hospital without taking the blue pajama pants as evidence, the technician discarded the pajama pants by throwing them into a garbage can.

         A physician who examined MacDonald in the emergency room said that MacDonald exhibited emotional distress and may have been delirious. In that regard, the physician pointed to a statement MacDonald made acknowledging that he had found his wife and daughters pulseless and lifeless, which was quickly followed by a contradictory inquiry from MacDonald as to when his family would arrive at the hospital for treatment. Otherwise, MacDonald seemed to have organized thought processes and to be alert as to time and place.

         MacDonald was hospitalized for about a week for treatment of his pneumothorax, which involved two separate insertions of chest tubes. A surgeon concluded, based on the smooth edges of the related laceration in MacDonald's right chest, that the laceration was made by a sharp instrument. According to MacDonald's medical records and hospital personnel who examined him, MacDonald also had a slightly raised contusion on his left forehead with some abrasion of the skin, four punctate wounds in his left chest, a laceration in his upper left abdomen through the fat layer to the rectus muscle, a shallow cut in the skin on his left arm, and a superficial cut between two fingers of one hand. The medical records and hospital personnel did not note or observe that MacDonald had any other injuries, including any additional head wounds, any ice-pick-like wounds, or any injuries to his back.

         d.

         As explained at the trial, the continuing investigation conducted by CID and FBI agents and laboratory analysts revealed that each member of the MacDonald family had a different blood type in the ABO blood group system. Specifically, Colette had type A blood, Kimberly had type AB, Kristen had type O, and MacDonald had type B. CID laboratory analysts tested bloodstains and scrapings from the MacDonalds' apartment to determine blood type and thus the possible source of the blood among the four family members. Notably, the laboratory analysts could not declare, for example, that any type A blood collected from the apartment came from Colette, rather than from one of the billions of other persons in the world with type A blood. The laboratory analysts could state only that the type A blood was consistent with Colette.

         In examining the suspected murder weapons, the CID laboratory analysts observed that the Geneva Forge knife found on the master bedroom floor had just a small amount of blood on it, on the tip of its bent blade. No blood was detected on the blades of the Old Hickory knife and the ice pick found outside the apartment, but when the blades were removed, small amounts of blood were discovered on the handles. The blood on the Geneva Forge knife gave a weak indication of being type A, and the blood on the Old Hickory knife was type A, consistent with Colette. The blood on the ice pick could not be typed. The visibly bloodstained piece of lumber found on the ground outside the apartment was coated in both type A and type AB blood, consistent with Colette and Kimberly.

         Bloodstains on the white Hilton hotel bathmat that had been covering Colette's abdomen were also type A and type AB, consistent with Colette and Kimberly. The same FBI laboratory analyst who examined Colette's and Kristen's clothing - and who testified as a prosecution expert in hairs, fibers, and fabric damage, impressions, and stains - examined the bathmat. He concluded that, given the configurations of two of the bathmat's bloodstains, they could have been made by the Old Hickory knife and the ice pick, then wet with blood, being wiped clean on the bathmat.

         Based on interviews with persons who had previously visited the apartment, the investigators determined that the Geneva Forge knife, the Old Hickory knife, and the ice pick could have belonged to the MacDonalds. Colette's mother said that she had used an ice pick that had been kept in the MacDonalds' kitchen, and a former babysitter for the MacDonalds later corroborated that the family owned an ice pick.

         The investigators more confidently pinpointed the apartment as the source of the bloodstained piece of lumber. Their conclusion stemmed from evidence that the bloodstained piece of lumber had previously been split from a "two-by-four," and that another fragment of the same two-by-four was being used as the wood slat supporting Kimberly's bed. A CID laboratory analyst who testified as a prosecution expert in wood, paint, and fibers confirmed the link between the bloodstained piece of lumber and the bed slat by comparing, inter alia, their grain patterns and annual growth rings. He also matched the dried paint on the bloodstained piece of lumber to the paint covering the bed slat and Kimberly's headboard and footboard, and to the paint on the paint-stained piece of lumber and latex surgeon's gloves in the locked storage shed outside the rear entrance to the apartment.

         The CID laboratory analyst further observed that the splinter found near the largest bloodstain in the master bedroom's area rug - one of the splinters that was about three inches in length - fit perfectly into the bloodstained piece of lumber. Moreover, the laboratory analyst opined that the bloodstained piece of lumber could have been the origin of additional splinters collected from the master bedroom, the bedrooms of Kimberly and Kristen, and one of Colette's hands, because the piece of lumber and the splinters were similar in color, texture, and cell structure. Another laboratory analyst, with the FBI, determined that some of the fibers on the bloodstained piece of lumber were consistent with the throw rug in the master bedroom.

         Other analyses showed that the two purple sewing threads on the bloodstained piece of lumber were consistent with the puncture-hole-filled and torn blue pajama top that MacDonald had laid over Colette. Specifically, the CID and FBI laboratory analysts who both specialized in fibers concluded that the purple sewing threads on the bloodstained piece of lumber matched threads used in most of the seams of MacDonald's blue pajama top. Likewise, the seventy-five purple sewing threads littered throughout the bedrooms were consistent with the blue pajama top's seam threads. There were also some blue-black sewing threads used in the blue pajama top, in the cuffs of the sleeves; those threads matched the single blue-black sewing thread in the master bedroom. The twenty-three blue fabric yarns in the bedrooms were consistent with yarns used in the construction of the blue pajama top's fabric. The laboratory analysts noted that the blue pajama top was well-worn and faded from being laundered many times.

         The FBI laboratory analyst determined that the blue pajama top was probably torn by someone grabbing the left section of the V-neck and pulling down while the top's wearer was stationary, or by someone grasping the V-neck while the wearer was spinning to the right. The investigators deduced that threads and yarns dropped from the blue pajama top when it was torn and continued to fall in the tearing's aftermath. Several other threads and yarns remained barely attached to the blue pajama top.

         On the blue pajama top, there were more than twenty stains of type A blood, consistent with Colette. Some of those bloodstains appeared to have once been part of larger bloodstains that were subsequently intersected by tears, suggesting to the FBI laboratory analyst that the staining occurred before the blue pajama top was torn. The blue pajama top also had one stain (on the lower front panel) of type AB blood, consistent with Kimberly, and one stain (on the left sleeve) of type B blood, consistent with MacDonald.

         The detached pocket that had been resting on the throw rug in the master bedroom was stained with blood of Colette's type, as was the throw rug itself. The FBI laboratory analyst confirmed that the pocket had been separated from the blue pajama top, and one of the CID blood examiners deduced that the detachment occurred before the corresponding area of the blue pajama top became bloodstained. In that regard, it was significant to the CID laboratory analyst that the pocket was stained only on its front side, and not on its back side, though the corresponding area of the blue pajama top was soaked in blood.

         The two cuts in the blue pajama top were in its lower right front panel and its upper left back shoulder area. The FBI laboratory analyst concluded that, because the cuts in the blue pajama top were "tearing" cuts, they were more likely made by the dull Geneva Forge knife than by the sharp Old Hickory knife.

         From crime scene photographs, the FBI laboratory analyst determined that the blue pajama top's forty-eight puncture holes were in portions of the blue pajama top that had covered Colette's chest. There were seventeen puncture holes in the blue pajama top's back panel, nine in the right front panel, eight in the shoulder area of the right sleeve, thirteen in the right sleeve, and one in the shoulder area of the left sleeve. The only part of the blue pajama top that was not atop Colette - the left sleeve that trailed out over the floor - contained no puncture holes.

         The FBI laboratory analyst observed that all forty-eight puncture holes in the blue pajama top were consistent with the ice pick and "clean," i.e., perfectly symmetrical with no tearing. Consequently, the laboratory analyst concluded that the puncture holes had been made in the blue pajama top while it was stationary. He explained that, had the blue pajama top been in motion when the puncture holes were made, there would have been tearing of the fabric yarns around the puncture holes.

         Based on the condition of the blue pajama top, the investigators came to suspect that the puncture holes were made while Colette, then motionless, was being stabbed twenty-one times in her chest with the ice pick. In other words, the investigators suspected that the blue pajama top was already covering Colette when her ice-pick-like wounds were inflicted. To test that theory, the FBI laboratory analyst and a colleague refolded the blue pajama top to match the crime scene photographs as nearly as possible, including by turning the right sleeve inside-out and by leaving the left sleeve trailing. By then lining up puncture holes in the blue pajama top and placing probes through them in the pattern of Colette's ice-pick-like chest wounds, the laboratory analysts ascertained that the twenty-one thrusts of a weapon into Colette's chest could have made the forty-eight puncture holes in the blue pajama top as the weapon passed through overlapping portions of the fabric.

         Other examinations conducted by CID laboratory analysts indicated that the word "PIG" was written on the master bed's headboard in type A blood, consistent with Colette. It appeared that the writer used two fingers, and that those fingers were not bare and may have been covered by a latex glove. The finger-shaped piece of latex in the pile of bedding and another piece of latex near Colette on the master bedroom floor were stained with type A blood. A forensic chemist concluded that the bloodstained pieces of latex and others collected from the master bedroom were consistent with Perry-brand latex surgeon's gloves kept beneath the kitchen sink. The forensic chemist detected some variations between the latex samples - including differences between even the known Perry-brand gloves - and he deemed those variations to be insignificant.

         As for the pile of bedding on the master bedroom floor, there were a few drops or spatter of type AB blood on the top sheet, consistent with Kimberly. Otherwise, the stains on the top sheet and the bedspread were of type A blood, consistent with Colette. The FBI laboratory analyst with knowledge of fabric impressions and stains opined that then-wet type A blood had made several impressions on the top sheet: two consistent with bloodstains on the left and right cuffs of Colette's pink pajama top; one consistent with a bloodstain on the left cuff of MacDonald's blue pajama top; two consistent with bloodstains on the right cuff of the blue pajama top; one consistent with a bare and bloody left shoulder; and two consistent with bloody left and right hands. The laboratory analyst also concluded that the heavy stains below the knees of Colette's pink pajama pants, also of type A blood, were made by direct contact with bleeding wounds.

         The same FBI laboratory analyst, as a prosecution expert in hair comparison, determined that the bloodstained hair twisted around the purple sewing thread in the bedspread could have come from Colette. The laboratory analyst further concluded that the two hairs on the bottom sheet of the master bed were consistent with Colette's known hair samples and had been forcibly pulled out by their roots. Regarding the hairs in Colette's hands, the laboratory analyst matched a hair in Colette's right hand to Colette and deemed a hair in her left hand to be unidentifiable.

         Spatter on the master bedroom walls, ceiling, and fixtures was of type A blood, consistent with Colette, and blood on the master bedroom area rug was both type A and type AB, consistent with Colette and Kimberly. The large stain on the hallway rug just outside the master bedroom was of type AB blood, consistent with Kimberly.

         Most of the blood in Kimberly's bedroom was her type AB, including the blood spattered on the wall above her bed. High on that wall, however, there was a stain of Colette's type A blood.

         The spatter on Kristen's bedroom wall was of Colette's type A blood, as was the large soaking stain on Kristen's top sheet and some of the other bloodstains on Kristen's bottom sheet and bedspread. Otherwise, Kristen's bedding was stained with her type O blood, except for a couple stains of Kimberly's type AB blood. The broken acrylic hair tie found on the throw rug in Kristen's bedroom was stained with Kristen's type O blood. That hair tie matched others known to be worn by Colette and kept on her nightstand in the master bedroom. The CID fiber examiner determined that a fiber in Colette's left hand corresponded with Kristen's throw rug.

         All blood on Kristen's bedroom floor and throw rug was type O, consistent with Kristen - except the blood that made the prints of the bare left and right feet of someone exiting the bedroom into the hallway. The blood that made the footprints was type A, consistent with Colette. A CID laboratory analyst determined that the bloody right footprint was unidentifiable, but he matched the bloody left footprint to MacDonald.

         The blood in the bathroom - in and around the sink and on the stepladder and wicker stool - was type B, consistent with MacDonald. Several hairs removed from the sink, including bloodstained hairs, were matched to Colette and Kimberly. One hair, which was coated in tar or a similar substance, was determined to be unidentifiable. At the end of the hallway between the bedrooms and bathroom, the three small stripes of blood at the juncture of the linen closet doors were MacDonald's type B.

         The bloodstain at the other end of the hallway, on the floor near the step down into the living room, was of either Kristen's type O or MacDonald's type B. There was no discussion at MacDonald's trial of a laboratory analysis of the clustered blue fibers or threads found on the hallway floor near the bloodstain.

         In the living room, the stains on the wall above the couch - though initially suspected to be bloodstains - proved not to be bloodstains after all. Moreover, none of the actual blood collected from the living room was MacDonald's type B. The smear of blood on the March 1970 issue of Esquire magazine appeared to be a mix of type A and type AB, consistent with Colette and Kimberly. The spot of blood on the lens of MacDonald's eyeglasses gave a weak indication of being type O, consistent with Kristen. The pink fiber caught in the eyeglasses' hinge was not matched to anything in the apartment.

         The drops of blood on the kitchen floor in front of the sink were type B, consistent with MacDonald. Although CID laboratory analysts conducted tests confirming that the substance on the underside of the sink was blood, the laboratory analysts did not type that blood.

         A CID laboratory analyst determined that the three samples of dried wax collected from the apartment did not match any of the MacDonald's fourteen candles. The laboratory analyst further concluded that the three wax samples were not consistent with each other, i.e., that each of the samples had a different source. Of the forty-three latent fingerprints and twenty-five latent palm prints recorded by the CID team, examiners identified twenty-six fingerprints and eleven palm prints as belonging to MacDonald or another person known to have been in the apartment. The other seventeen fingerprints and fourteen palm prints were identifiable but not matched to any person. Those included prints on a jewelry box and window blinds, all in the master bedroom, and on a drinking glass in the living room. The examiners deemed an additional twenty-four fingerprints and seven palm prints to be insufficient for identification. Of note, there were no prints on the Geneva Forge knife, the Old Hickory knife, the ice pick, or the bloodstained piece of lumber. Several of MacDonald's latent fingerprints had been left, however, on the inside pages of the Esquire magazine.

         The investigators were struck by similarities between MacDonald's account of murderous intruders and the Esquire magazine's articles about the Manson murders and other cult-like activities. For example, the magazine contained many references to blonds, burning candles, and use of the words "acid" and "groovy." In the Manson murders, the victims were mutilated and the word "PIG" was allegedly smeared on a wall in the victims' blood. Those and other pertinent passages from Esquire were read into the record during MacDonald's trial.

         e.

         The trial evidence also included MacDonald's prior statements and testimony, presented through witnesses and written transcripts. MacDonald had been interviewed at Womack Army Hospital by CID and FBI agents in the hours after the murders on February 17, 1970, and again on February 18 and 19. About seven weeks later, on April 6, MacDonald submitted to further questioning by CID agents. The Army charged MacDonald with the murders on May 1, and he thereafter voluntarily testified in his Army proceedings, which began in June and ended in October 1970. MacDonald also testified before the federal grand jury, on five days in August 1974 and one day in January 1975.

         The CID and FBI agents who interviewed MacDonald at Womack Army Hospital acknowledged that he was at times emotional and unable to coherently describe what had just occurred in his family's apartment. During those interviews, however, MacDonald committed to several details of his account of murderous intruders, including the following: that the four intruders he saw consisted of a black man, two white men, and the blond-haired woman, who was also white; that all of the intruders were wearing some sort of shoes; that the female intruder was wearing boots that appeared to be black in color, but were actually dark brown and wet; that the black male intruder assaulted him with the club that he believed to be a baseball bat; and that, after the attack, he pulled a knife from Colette's chest and threw it away from her within the master bedroom. When informed that there were bloody prints of bare feet in Kristen's bedroom, MacDonald acknowledged that he probably stepped in blood and made the prints as he rotated between the bedrooms in his fruitless quest to revive his wife and daughters.

         By their subsequent questioning of MacDonald in April 1970, CID agents sought to develop and clarify details of MacDonald's account. MacDonald described being awakened on the living room couch by Colette's and Kimberly's screams from the bedroom area and continuing to hear their voices during his brief encounter with the intruders. According to MacDonald, Colette pleaded for help and cried, "Jeff, Jeff, why are they doing this to me?" Kimberly yelled, "Daddy," over and over.

         MacDonald said that, in addition to having short hair, each of the three male intruders was of moderate height. He noted that one of the white men was slightly shorter than the other, and the black man was wearing an Army field jacket with Sergeant stripes. As for the blond-haired woman who seemed to be carrying a candle and chanting, "Acid is groovy; kill the pigs," MacDonald said she was wearing a mini skirt or shorts with her floppy hat and her boots, which ended just below her bare knees. MacDonald stood by his earlier statements that the woman's boots were brown, and he denounced then-recent newspaper reports that the boots were white.

         Furthermore, MacDonald reiterated that the black male intruder assaulted him in the living room with the baseball-bat-like club. Having recounted that he grabbed and held onto the club during the melee, MacDonald conveyed some certainty that the club was a baseball bat. He also recalled grabbing one of the white male intruder's hands and seeing a blade in that hand. MacDonald said that, after his blue pajama top became wrapped around his wrists and hands, he used the pajama top to blunt the torrent of blows from the two white men. Although MacDonald was unsure whether the pajama top had been ripped from around his back or pulled over his head, he suggested it was more likely that the top was torn off, as he had no memory of backing his head through it.

         According to his April 1970 interview, once he awoke after the attack, MacDonald got up and walked straight down the hallway to the master bedroom, removing the blue pajama top from his wrists and hands as he went. MacDonald specified that he immediately pulled the knife from Colette's chest and covered her with the blue pajama top in an effort, however illogical, to treat shock and keep her warm. Additionally, MacDonald recalled covering Colette with the item he took from the nearby green vinyl-upholstered chair, and he acknowledged that item must have been the white Hilton hotel bathmat. MacDonald stated that he could not remember moving Colette, but that it was possible she had been leaning against the green chair and he moved her slightly - no more than an inch or two - to lay her flat on the floor and attempt mouth-to-mouth resuscitation.

         Without purporting to be sure of the exact order of his subsequent movements, MacDonald recalled that he next went to the bedrooms of Kimberly and Kristen, and that he then made a second rotation between the three bedrooms. MacDonald believed it was during his second visit to the master bedroom that he used the telephone to call for help. Probably after his second rotation between the bedrooms, he checked his own wounds in the bathroom mirror, and he also washed his hands in the bathroom sink. Thereafter, he again requested help, now by way of the kitchen telephone. The next thing he knew, he was lying next to Colette on the master bedroom floor and being given mouth-to-mouth resuscitation by a military police officer.

         MacDonald theorized during the April 1970 interview that the intruders had entered the apartment through the rear doorway into the utility room. He explained that, on one of his visits to the master bedroom, he stepped into the utility room and saw that the wood exterior door was open. He also said that Colette usually locked the apartment, but that she may have forgotten that night and he had not checked. Assuming the intruders came through the utility room and launched their attack in the master bedroom, however, MacDonald acknowledged that it was puzzling why he was not awakened by screams before the intruders reached the living room, and why the intruders left Colette and Kimberly crying for help. MacDonald speculated that perhaps the intruders had wounded Colette but thought they had killed her, and then Colette began screaming after the intruders exited the master bedroom. Alternatively, MacDonald surmised that there could have been two more intruders with Colette and Kimberly while the four other intruders confronted MacDonald in the living room.

         When the CID agents posited that four or six intruders should have left more evidence of their presence - more disorder and damage than just the "living day-to-day mess" found in the apartment - MacDonald responded that the intruders he encountered were not hyper and had dull affects. When the agents later stated that a multi-day search had yielded no evidence of any stranger being in the bedrooms, MacDonald expressed surprise and explained that, aside from his family and the intruders, there had been many people in those rooms.

         Shown photographs in April 1970 of the four suspected murder weapons, MacDonald asserted that he did not recognize the Geneva Forge knife, the Old Hickory knife, the ice pick, or the bloodstained piece of lumber. MacDonald insisted that he had never used an ice pick in the apartment, and that he did not believe an ice pick was kept there. With respect to the bloodstained piece of lumber, MacDonald established with the CID agents that it was essentially a "two-by-two," and then he disclaimed possessing any two-by-twos at the time of the murders. Even after being confronted with evidence that paint on the bloodstained piece of lumber matched paint on other lumber and latex surgeon's gloves in the locked storage shed, MacDonald persisted in denying that he recognized the bloodstained piece of lumber.

         Throughout the April 1970 interview, the CID agents revealed physical evidence to MacDonald and accorded him the opportunity to address it. For example, the agents informed MacDonald that threads and yarns matching his blue pajama top were found beneath Colette's body. MacDonald could not explain how the threads and yarns got there. When told that similar threads and yarns were also in Kimberly's and Kristen's beds, MacDonald immediately responded, "Holy Christ," and then suggested that the threads and yarns may have been stuck to his bare arms and fallen off as he visited the bedrooms and attempted to revive his daughters. As another possibility, MacDonald said that the threads and yarns could have adhered to the intruders during their battle with MacDonald in the living room and later dropped from the intruders after they returned to the bedrooms to complete the murders of Colette, Kimberly, and Kristen. In proffering his theories, MacDonald confirmed his recollection that he covered Colette with the blue pajama top when he first went to the master bedroom, and that the pajama top was not with him during his visits to his daughters' bedrooms.

         In his subsequent testimony in the 1970 Army proceedings and before the federal grand jury in 1974 and 1975, MacDonald stuck with his assertion that the blue pajama top was either ripped from around his back or pulled over his head during his battle with the intruders in the living room. Furthermore, MacDonald adhered to his account of covering Colette with the blue pajama top on his first visit to the master bedroom after the attack. MacDonald elaborated that he either dropped or threw the blue pajama top as he entered the master bedroom, and then he pulled the knife from Colette's chest and retrieved the pajama top from the master bedroom floor to lay over her. MacDonald specified that he shook the blue pajama top to open it like a towel before covering Colette with it. He also expressed certainty that Colette had been leaning against the green chair and that he moved her to lay her flat on the floor. Whereas he had previously said that he moved Colette no more than an inch or two, he now estimated that he moved her six inches. Such details were fodder for the government at the 1979 trial, wherein it sought to establish that MacDonald had made changes to his story to make it more consistent with the physical evidence, such as the threads and yarns beneath Colette's body.

         2.

         The government's theory at trial was that, in the early morning hours of February 17, 1970, MacDonald got into an argument with Colette in the master bedroom - perhaps because Kristen had wet MacDonald's side of the bed, or perhaps because of something else. Whatever the reason for the argument, it quickly escalated into a physical altercation. Colette may have used the Geneva Forge knife to protect herself from MacDonald, leaving the two tearing cuts in the blue pajama top that he was then wearing. Additionally, Colette may have used another object to hit MacDonald in the head. Likely enraged and exhausted from his work and home activities, MacDonald wielded the soon-bloodstained piece of lumber against Colette, poking it into her chest and repeatedly swinging it at her as Colette raised her arms and hands in self-defense. Kimberly was awakened by the fracas and afoot in the master bedroom. MacDonald then intentionally struck Kimberly with the piece of lumber on the left side of her head, or accidentally did so as he swung at Colette.

         Under the government's theory, all type A blood in the apartment was Colette's, all type AB was Kimberly's, all type O was Kristen's, and all type B was MacDonald's. The government deduced that when MacDonald struck Kimberly with the piece of lumber, her blood sprayed onto the master bed's top sheet, which was then on the bed, and onto the front panel of MacDonald's blue pajama top. The strikes that connected with Colette spattered her blood on the master bedroom walls, ceiling, and fixtures. As MacDonald and Colette brawled, MacDonald bled on his blue pajama top's sleeve, and Colette got blood all over the blue pajama top, in spatters and by direct contact. Its pocket, probably already stained with Colette's blood, became detached from the blue pajama top, and then the pajama top was stained with more of Colette's blood and violently torn. Colette likely grabbed the left section of the blue pajama top's V-neck and caused the tearing, either by pulling down as MacDonald stood still or by holding on while he spun to the right. Threads and yarns dropped from the blue pajama top when it was torn and continued to fall in the master bedroom thereafter, landing on the master bed and on the area rug and throw rug covering the floor. The blue pajama top shed many of the threads and yarns when MacDonald - still wearing the pajama top - swung the piece of lumber. At the same time, the piece of lumber shed splinters, leaving numerous threads, yarns, and splinters interspersed.

         According to the government, MacDonald may have incurred injuries in the master bedroom, including the contusion on his left forehead (possibly from being hit in the head by Colette); the four punctate wounds in his left chest (possibly made by Colette's fingernails as she grasped the blue pajama top); and the minor lacerations and cuts in his upper left abdomen, on his left arm, and between two of his fingers (possibly inflicted by Colette with the Geneva Forge knife). Colette and Kimberly sustained serious clubbing wounds in the master bedroom, but they were not yet dead.

         By that time, the government surmised, MacDonald perceived that things had gone too far, his family would never live together normally again, and his personal and professional future was at stake. MacDonald thus resolved to kill his wife and daughters. Inspired by the Manson murders, MacDonald employed a variety of weapons and staged the crime scene to mimic a cult slaying and portray himself as a fellow victim and lucky lone survivor.

         The government concluded that MacDonald moved Kimberly from the master bedroom to her bedroom, as indicated by her bloodstains in the master bedroom and on the hallway rug just outside the master bedroom. MacDonald tucked Kimberly into her bed with the battered left side of her head against a pillow, leaving threads and yarns from the blue pajama top beneath Kimberly's covers. MacDonald then struck Kimberly again with the piece of lumber, this time on the exposed right side of her head. When MacDonald raised it to strike Kimberly, the piece of lumber - now wet with blood from the attack in the master bedroom - hit the wall above Kimberly's bed and transferred some of Colette's blood there. During the strike, Kimberly's blood spattered on the wall, and splinters and blue pajama top threads and yarns showered onto the bed. In addition to clubbing Kimberly in her bedroom, MacDonald also stabbed her there with the Old Hickory knife eight to ten times in the neck.

         As for Kristen, the government characterized her killing - in her own bed, where she had apparently slept through the preceding horror - as a particularly cold-blooded murder. MacDonald stabbed Kristen seventeen times with the Old Hickory knife through her pajama top and undershirt, and, having lifted Kristen's pajama top, at least fifteen times with the ice pick through her undershirt alone. During the attack, Kristen's hands and fingers also were cut. A spot of her blood may have been propelled onto MacDonald's eyeglasses, which MacDonald may have been wearing at the time. Kristen bled in her bed and on the floor nearby.

         The government theorized that, while MacDonald was in Kristen's bedroom, the badly injured Colette somehow got there to try to help her younger daughter. From the evidence, the government inferred an encounter between MacDonald and Colette in which Colette's acrylic hair tie was ripped from her head, stained with Kristen's blood, and left broken on the floor. MacDonald struck Colette again with the piece of lumber, spraying Colette's blood on Kristen's bedroom wall and scattering splinters on her bed. Colette fell onto the bed - likely unconscious - and made the large soaking bloodstain on Kristen's top sheet. The piece of lumber also transferred Kimberly's blood to some of the bedding, and a blue pajama top thread and yarn fell on the bedspread.

         In the government's account, MacDonald went to the master bedroom for the top sheet and bedspread from the master bed, which he brought to Kristen's room and laid on the floor. MacDonald moved Colette onto that bedding, where she continued to bleed. As he bundled Colette to carry her back to the master bedroom, MacDonald stepped in Colette's blood on the bedding. MacDonald then made bloody prints of his bare feet on the wood floor as he carried Colette out of Kristen's bedroom and into the hallway - explaining why the footprints were made in Colette's type A blood, but the only other blood on Kristen's bedroom floor was her type O. Meanwhile, MacDonald and Colette made impressions on the master bed's top sheet, in Colette's blood, with their bloody blue and pink pajama top cuffs, a bare and bloody shoulder, and bloody hands. Colette made heavy bloodstains below the knees of her pink pajama pants when she was slumped over on Kristen's bed or when she was folded up and being carried to the master bedroom.

         The government deduced that, back in the master bedroom, MacDonald placed Colette on the area-rug-covered floor, atop and amongst an array of splinters and blue pajama top threads and yarns. MacDonald stabbed the motionless Colette sixteen times with the Old Hickory knife, in her neck and chest. Perhaps seeking an explanation for the immense amount of blood on his blue pajama top, and perhaps wanting an excuse for his own shortage of stab wounds, MacDonald laid the blue pajama top over Colette's chest and stabbed her through it twenty-one times with the ice pick. He also used the ice pick to stab Colette three times in her upper left arm. MacDonald wiped the Old Hickory knife and the ice pick on the white Hilton hotel bathmat, leaving only a little of Colette's blood on the Old Hickory knife and a trace of blood on the ice pick so small it could not be typed. He also laid the bathmat over Colette's abdomen. By then, the bloodstained piece of lumber bore two threads from the blue pajama top and fibers from the master bedroom throw rug, apparently acquired when the piece of lumber was resting on the throw rug sometime during the slaughter.

         Thereafter, according to the government, MacDonald discarded the weapons he had used - the Old Hickory knife, the ice pick, and the bloodstained piece of lumber - by throwing them from the utility room's exterior doorway into the apartment's rainy and wet backyard. MacDonald managed to conceal the knife and ice pick beneath a large bush, while the piece of lumber landed on the ground nearby. To support his story of intruders, MacDonald left the rear exterior doors unlocked and open. He consulted the March 1970 issue of Esquire magazine for details of Manson-style murders, inadvertently staining it with blood, probably a mix of Colette's and Kimberly's. MacDonald also left latent fingerprints on the inside pages of the Esquire magazine, or he had already made those prints while previously perusing that issue. So it would appear that a struggle had occurred in the living room, MacDonald turned the coffee table on its side, pinning the Esquire magazine beneath the boxed children's ...


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