The Jeffrey MacDonald Case - A Round Table discussion with Richard Cahn

good afternoon everyone on behalf of myself in the Torah Law Review I just wanted to thank mr. Khan for joining us today and I want to also thank professor Klein and professor citron for being here and without any further ado I'll turn it over to professor Klein this is one of those cases there aren't that many in this country that highly publicized matters and just keep on going on and the Geoffrey McDonald case goes back to a homicide to a murder that had occurred in 1970 and it's gone on with various amount of publicity been covered all of these years and just in September of this year the case was back before the federal district court and the judge now in that case is going to make a decision whether or not there's sufficient new evidence to call for a new trial but I think Richard Cahn is someone who has written about this matter was the representative the lawyer for the parents of the woman who was allegedly killed by Geoffrey McDonald and let me just say a word about Richard he's a Yale Law graduate had worked for years in the US Department of Justice then he became a criminal defense lawyer got 18 B assignments which most students here are aware of he's done a lot of federal civil litigation he's been appointed once a special prosecutor in Suffolk County on a murder case he's been the president of the Suffolk County Bar Association and I think it's really great to have Richard Khan here with us today well thank you very much this is indeed an interesting case and a case that never dies I would take exception to one of professor Klein's comments in which he said that Jeffrey MacDonald MacDonald allegedly killed his wife and daughters he has been convicted of those crimes and I don't think that there is any longer any allegedly about it to be sure there have been legal proceedings for almost forty years since his conviction which in which he has tried one legal theory after another to try and set aside his conviction but the conviction convictions triple convictions still stand so the case did attract a great deal of media attention in 1970 and thereafter in 1970 you had a murder in officers quarters at Fort Bragg North Carolina a military reservation the victims were the wife and two infant daughters of an army captain who by the way was a physician and a green beret you will recall I'm sure from reading history you're all too young to have lived through it but the Green Berets were a subject of a lot of talk at the time of the Vietnam War and there were quite a lot of strong feelings about them so for all of those because of all of those factors this case attracted a lot of attention it also like so many sensational cases attracted attention because of the lurid and sensational nature of the crimes two little girls 5 and 2 years of age brutally bludgeoned and stabbed to death a wife pregnant six months with a baby boy also bludgeoned and stabbed repeatedly until she died the fact that there was a continuing mystery for some time about the identity of the murderer was also something that provoked a lot of media coverage let me start first with the crimes themselves this all happened on the night and the early morning hours of November sorry of February 17 1970 at 544 Castle Drive at Fort Bragg North Carolina it's a small house it's officers quarters occupied by Green Beret army doctor and captain Jeffrey MacDonald his wife Colette who was 26 years of age their two daughters Kimberly Five and Kristen two and as I indicated Colette was pregnant with a third child a boy when the MPS responded to McDonald's telephone call for help shortly before a 4:00 a.m. on February 17th they found three dead bodies Colette was sprawled on the floor of the master bedroom on the headboard of the bed was written the bloody word Pig Kimberly and Kristen were dead each tucked under the covers in her own bed when the covers were pulled back it was gruesomely clear that both girls like their mother have been bludgeoned and stabbed in the Army CID the Criminal Investigations Division was immediately summoned now McDonald was alive the only male in on premises the only person who presumably would have been in the best position to defend himself he was given some eight or possibly ten superficial stab wounds in and about his chest and abdomen the number of stab wounds which he by the way later on began to say were actually twenty-two stab wounds and several of them were life-threatening but there were eight or ten stab wounds quite superficial and the question immediately arose in the minds of the investigators why was the man left alive and this brutal series of killings taking place all around him it just didn't compute McDonald told his story he claimed that he had fallen asleep on the couch in the living room his wife was in the master bedroom the two little girls were in their beds he was awakened by four bizarre looking intruders a woman with a floppy hat chanting acid is groovy kill the pigs a large muscular black man and two other hippie types who were white from the master bedroom he heard his wife's voice Jeff Jeff why are they doing this to me McDonald tried to rise from the couch but his arms were tangled in his pajama top he was unable to defend himself and he was struck repeatedly on the head by the black man swinging a club or bludgeoned like a baseball bat over his head he was specific about that he then felt sharp pain in his chest or abdomen and he lost consciousness when he woke some time later the apartment was silent and he went and investigated and found his wife's body in the on the floor of the master bedroom he took off his pajama top and he placed it over her chest tried to give her mouth-to-mouth resuscitation unsuccessfully went to see whatever had happened to the girls they were in their beds and they were dead as well ah he then called the military police now he was on active duty with the army at the time and there was an investigation and some weeks after McDonald was told by the criminal investigating authorities that he was under investigation for these murders and that an article 32 proceeding would be convened to determine whether there was probable cause to hold a general court-martial that's a procedure under the Code of Military Justice it's a it's the equivalent of the civilian grand jury an investigating officer here is evidence including from the accused if he wishes he doesn't have to testify and he makes a determination whether there's probable cause the hearing went on for 25 days McDonald insisted upon testifying and he gave very very specific details about what he did and what he did not do and he was innocent it was these four intruders well at the end of the article 32 proceeding Colonel Warren Rock who was the investigating officer issued his report finding not only that there was no probable cause to hold McDonald but that McDonald was in fact innocent something that goes way beyond a and investigating officers charged in that kind of a military justice proceeding the army was the Army CID the investigators were outraged they felt from the beginning that the man was guilty and there were just too many unexplained circumstances it was a rainy night there was no sign of intruders in the apartment no forced entry no mud on the floor no rain streaks the neighbors the Kalin's had a dog which always barked at intruders or any disturbance in the neighborhood truly like the Sherlock Holmes story this was a story where the dog didn't bark there were rubber surgical gloves inside a kitchen cabinet that captain McDonald who was a surgeon used and one of those gloves was found torn and bloody on the floor of the master bedroom there was no sign of a struggle he had testified at the article 32 preceding that these four intruders three of the men attacking him while the woman chanted and yet there was no sign of a struggle the taller of the three men the black man repeatedly he said he he held the bludgeon over his head and came down vertically and struck him on the head and the shoulder and yet you have a seven foot ceiling in that room and it is absolutely impossible to have that kind of activity take place without there being some marks in the ceiling something on the floor he claimed his pajama top was torn there in the living room no fibers when from the pajama top were found on the living room floor that's a question for a minute in spite of everything that you've been saying he was found at that not to have been responsible for the deaths and the next step would have been to get the US Attorney's Office to have indicted him and I think there were attempts to get the US Attorney's Office to hold a Gravitron jewelry set and then to proceed hopefully to indict Jeffrey MacDonald for the murders but that didn't occur initially if you just want to yes talk abouts right well it could it couldn't have occurred while he was in the service because then he would have been subject to a general court-martial he was released there was a reinvestigation by the army CID he was by that time in California practicing medicine again trying to make a new life for himself and his in-laws who had first very publicly come to his defense began to doubt what had happened they finally got their hands on the article 32 transcript and they realized that all of the information that Jeffery had told them during these nightly phone calls after every session of the article 32 hearing all of that was inconsistent with the physical evidence or plain lies and so they were encouraging the CID the CID came out with a report a year and a half later saying that they thought there was a prima facie case against this man in the case thought now to be presented to the grand jury because now he was a civilian and the Justice Department refused to act to make a very long story short the cast abs the parents of Colette became increasingly frustrated they were clients of a lawyer here in Suffolk County who had represented them in a house closing but I did a lot of federal work he didn't and he realized this was something that had federal implications so he referred them to me and I having been in the Department of Justice and having by the way worked for L Patrick gray who in 1972-73 was the acting head of the I in the Nixon administration I thought that perhaps I could prevail upon some of the people I knew at justice or maybe Pat gray himself to to do something to get this case started again we struck out got no response I didn't even get a personal letter from my old friend Pat gray turned out much later I found out why I didn't hear from him Watergate had just happened and he had just plunged into that and realized that the Watergate scandal actually extended into the White House and he had his hands he had yet a full plate he was not able to really give personal attention to everything else and I learned that some years later so anyway in answer to Professor Klein's question the thing that I think that I was proudest of if you'll allow me to say that is that I just remembered from law school that one of my professors probably in a criminal law course said look at the procedure procedure is not only important the procedure is everything so I looked at the way the federal government starts a criminal prosecution well a criminal prosecution starts with the filing of a complaint so I looked at rule three of the rules of Criminal Procedure and I found to my surprise that a criminal complaint does not have to be signed by an investigating officer it does not have to be signed by law enforcement or by FBI or the Secret Service or the Treasury it can be presented by anyone having notice of the facts or knowledge of the facts and once a rule 3 complaint is presented to a federal magistrate judge then the judge has a duty to read it and if he believes under Rule four that an offense has been committed and that the defendant committed it if there's probable cause in his opinion he must issue an arrest warrant to an officer authorized to execute it and he may alternatively convene a grand jury I didn't know about those things I'd never had occasion to do that so the Kasab's came to my office in huntington and we spent a lot of time together reconstructing would happen looking over the article 32 proceedings Pete Kern's a captain in the Army CID who conducted the reinvestigation and who concluded that there was probable cause to prosecute MacDonald he came to my office and he has such a detailed knowledge of the case that I sat him down in a room with my secretary who took shorthand and for an hour he dictated his recollection of the case and his reactions and so forth so that from that material after she typed it up I could draw up a criminal complaint and that's what we did we took it down to North Carolina to the basement of a federal courthouse building in Clinton North Carolina basement of a post office building where Judge Algernon Butler the chief judge in the Eastern District in North Carolina had his chambers I had called him eight days before told him that I wanted to appear with the SABS and what it was about he was surprisingly friendly and hospitable and obviously interested in the case and we appeared Tom McNamara the US attorney who also comes from Long Island by the way was there it turns out and what McNamara of course was the guy who two years before upon becoming US Attorney had written a prosecutorial memorandum to the Justice Department urging the Justice Department to place the case before a grand jury Carl Belcher a man who at that time was the head of the general Crimes section of the Criminal Division and justice absolutely refused to sign off on a grand jury investigation and it died there but we appeared before Judge Butler judge Butler swore in the Kasab's of my presence war in peat Kassab who was there with us they all swore to what they said in the criminal complaint and the affidavit the judge asked a lot of questions took a lot of notes a lot of the notes I've had the opportunity in recent years to read because he kept all of the his own materials judge Butler and he donated them upon his death to the University in North Carolina a library and so I I got copies of all of them and I was surprised at the detailed notes he was taking about the oral argument that I made and how Tom McNamara said to him judge my hands are tied I was asked a question yeah yeah but in spite of everything that Butler did decide and I think he was impressed by the Kasab's and everything you had presented the Justice Department would have the last word whether or not to proceed with the prosecution that's right and so judge Butler the day after we appeared in his chambers which was April 30th of 1974 wrote a letter to William Saxby the Attorney General and said I've had this visit from mr. Conn and his clients and they have presented a criminal complaint to me please advise me whether if I convene a grand jury you will present evidence to the grand jury if the grand jury indicted because the law as you may know there's some law behind this too it's a very rare thing that a civilian can files a complaint successfully it turns out that there are only a couple of cases one a Supreme Court case in which the courts have held that the absolute question whether to prosecute is lies with the executive branch of the federal government however the grand jury has what is called an inquisitorial function it has the duty of investigating the facts and the Supreme Court said that invest in investigating the facts the grand jury can take its information anywhere it can find it so you have this tension you have a grand jury which could become easily a runaway grand jury and indict anybody without any real cause and then the prosecutors decide they don't want to prosecute that indictment so what's the point of it so what I said to the judges look judge I know it's a great temptation not to do anything here because if you convene a grand jury and the grand jury wants to indict the government isn't going to isn't going to prosecute perhaps so but I think the case is important enough it happened it's a sensational case that happened on a government reservation the government can't just close the file and not explain to the public why it has done that so the bank a long story short the Tom McNamara after our visit with him and with the judge went to Washington made a further plea to Carl Belcher and the general Crimes Division Belcher still would not move but Henry Peterson the a AG in charge of the Criminal Division overruled him a grand jury was convened in the rest is history okay this brings us to the trial and I think that richer and I had an interesting discussion yesterday I'm relating to two things I'd like to ask you about and none of you are recapping of what had happened do we get into why Geoffrey McDonald why Geoffrey McDonald let me just use this one would have wanted to have killed his wife and two kids what motive did he have and I think we all know the prosecutor doesn't have to prove motive it's not an element of the crime but certainly the jurors sitting there at the trial would want to know to understand it more why would he have gone ahead and killed his two children and his pregnant wife in the violent way on that had occurred and I think if you just want to speak on the possible motive a bit but even you felt uncomfortable in guessing what his motive could have been that's right I don't know I that's most troublesome part of the case he had a number of extramarital affairs the most recent one before the crimes being a couple of months he and his wife did not get along I learned that from the Kassab family he was a very arrogant individual very proud a kind of Superman type of guy that you couldn't challenge without being shot down yeah and that's it and and so there was not a good relationship there it doesn't explain why all this happened that's true and I and I and I can't tell you all I can tell you and of course what happened after we got finished on April 30th 1974 is you know that happened that was not something that I have any personal knowledge of but all I can tell you is that my strong feelings at the time that the physical evidence did not bear out any of what McDonald said and if he lied about what he did that night he could have been confused but there were just too many blatant and consistencies he even admitted at the trial that he lied to his father-in-law said that he had gone down to a bar in Fayetteville and encountered someone that he felt might have been one of the perpetrators and he took him outside and questioned him and when he became convinced that the guy did it he killed him well there was no such murder that occurred in Fayetteville or in the surrounding area anything like that at anything like that time and he admitted that that was a monstrous lie and he did that to get his father-in-law off his back I think part of your explanation for why there was a conviction was because Jeffrey McDonald made the decision that he wanted to testify at trial and he was someone who didn't come across well I mean he was arrogant and yes yes I saw him I went down for the day of cross-examination and I was quite unimpressed with his credibility um he he didn't do himself any favors he didn't have to testify at the article 32 he didn't have to testify at the grand jury and he didn't have to testify at the trial but he testified in all three places and he just dug himself a deep hole so be fun to add one thing about motive and that is my interest in this came from there's an extraordinary set of books that have been written about the case the first one is a very famous nonfiction novel basically it's not by an author named Joe McGinnis who was with McDonald and the defense team as the case was going on so he had extraordinary access to the defense team and McGinnis concludes as the Richard and as did the jury that in fact dr. McDonald was guilty and then there have been books written about that book saying that about the relationship between the journalist right McGinnis and dr. McDonald to circle back though to the sort of first level mcginnises theory mcginnises theory disclosed at the end of a very long book is that in fact McDonald as part of his Green Beret training was taking diet pills something called s cotrol he was taking them in high doses and that during the preceding weeks of the month sort of leading up to the murders he was working very hard he was taking too many diet pills and this made someone had the personality right Richards Khan's description of dr. McDonough was consistent with what Joe McGinnis says the arrogance and so on and that what seemed to have happened that night was some sort of domestic incident or fight that spiraled out of control very quickly and that's what led to that's what led to the murders so I'll stop there but that's what I think helps they they're there are it is and that theory is contested that is as as to motive and the dipoles would die pills do this or not I should also add that with respect to the diet pills that wasn't presented by the government to the jury to my knowledge that or with your recollection but that is something that is in one of the books about the case could you also just if you feel free to talk about your reaction to the defense lawyer Bernie Siegel who represented Geoffrey McDonald at the trial because I think when one looks at why there was a conviction in spite of the shocking nature of the crime and the lack of motive for the defendant I think one looks at the defendants testifying and the jurors didn't like him and he came across in this arrogant kind of away and it's never good to have the defendant disliked by the jurors but then also you had some things to say about the defense counsel in the case well from everything I have heard and from my brief opportunity to observe him in action he is a very flamboyant self-promoting type of guy not the type of guy that probably would go down well and I with a with a group of jurors from North Carolina its shall I say a little bit more sedate group of people who like to see respect and dignity and Siegel with his hair flying all over the place and his unkempt suits and his loud brassy manner really wasn't a good fit as it happens he was smart enough Seagal to engage Wade Smith who at that time was an older very dignified extremely well respected lawyer in North Carolina as co-counsel in the case but unfortunately Seagal was unable to let go of the spotlight and Wade Smith did very very very little one other postscript about Siegel is that when judge Fox the federal district judge in North Carolina in September was presiding at this hearing Joe McGinnis the author of the book that Roger Cintron citron mentioned Joe McGinnis was called to testify and as Roger said he was embedded with the defense team and so he was present in the courtroom present at the private conferences and he flatly testified that Bernie Siegel lied to judge Dupree during the trial the argument was about whether Hellena stokeley a woman who resembled this woman with the floppy hat one of the four hippies was arrested as a material witness brought to testify at the trial and when she testified she denied any knowledge at all of participation in the crime and any complicity herself doesn't have any recollection of ever being in the mcdonald house and so the judge refused to allow siegel to present six or seven of her acquaintances who he was going to put on the witness stand and they were going to testify that helene of Stokley told them that she was present at the time of the murders and she saw them committed and she was horrified and Judge Dupree ruled out that testimony as not reliable and that certainly one of the issues on appeal the judges at fusil who have permitted those witnesses who would say that this woman told them that she was there that's right that's right and it's one of the issues on the 2255 hearing before judge judge Fox 2 but I thought it was quite an indictment of Siegel that McGinnis who who I don't think is an untruthful man felt free to say that he lied to the judge about what Helena stoeckley said Wade Smith is still alive he was called to testify and he testified last September that Helena stoeckley did meet with the defense but that she gave no evidence no information of value to the defense case so you've got a very forget what you think or don't think about Joe McGinnis who wrote this book and got criticized for it here's Wade Smith who's an impeccable distinguished lawyer and has had a distinguished career in North Carolina he came and testified also that what Siegel told Judge Dupree was not true and to put the Stokley testimony and whether and how the trial court judge handle is actually fascinating evidentiary question or issue we talk all the time in Civil Procedure and evidence and other courses about the discretion of the trial court to to give the defense's side of the stokeley's story go back to dr. McDonald's story right he said for intruders one woman but I think was described as having blondish hair and it turns out that Stokely at different points Helena stoeckley said that she was out with three people that night she owned a blonde wig and then she began having memories of being in the house now it turns out that after she was arrested each side had the opportunity to interview her before she testified at the trial and considering the time lapse right the event was in 1970 the murders were in 1970 the trial was in 1979 stokeley's testimony was presented to the jury ah and she continually said consistently said she admitted being a drug user a heavy drug user at the time but my recollection is is that she consistently said that she had no memory or no knowledge of ever being inside the house deny being involved in the crime now what's interesting was it was sort of a two-part strategy by the defense right first we call Stokley help plant reasonable doubt because she's going to talk about I was there with a candle that's all I can remember but I was there saying things like acid is groovy and then on top of that they plan to the defense plan to bring in these six or seven witnesses I think it was six then it actually became seven during the course of the trial who would corroborate right and this was thought to be very significant a very significant prospector opportunity for the defense to create reasonable doubt right because there's only two competing narratives either McDonald did it himself or the four intruders did it what Stokely did not write part one did not work out but the defense was hoping but will still be able to raise a reasonable doubt their corroborating witnesses but the trial court judge for a number of reasons he heard the testimony outside the presence of the jury of the six people who had heard these statements by Stokely about I think I was there I have a memory of being there and so on it was a very yet a basis for doing so under the rules of evidence he had a basis of for doing so actually two different rules of evidence right the hearsay rules as well as the rule for Oh through the basic basic rule about probative value versus prejudicial effect and then there was simply a discretionary decision by the trial court judge and he decided stokeley's testimony in and of itself is inherently unreliable he did not allow the trial court he did not allow the six other witnesses to testify in front of the jury about what they had heard and this became an important issue on appeal and at least one judge on the Court of Appeals was troubled by the decision not enough to say the conviction should be set aside but enough to say in a case like this the benefit of the doubt should have been let the jury hear at all and let the jury decide it all and that is in fact still one of the open issues now in this last evidentiary hearing in this last appeal before the district court which is the hearing was in September and we're still waiting for the decision that is all the parties as well as the public is waiting for the decision but it's a I it wasn't it it was an important part of the defense overtime it seems to have become even more so that is this idea of if Stokley was telling the truth that would create a reasonable doubt there was a book which came out last year which prompted both of these which prompted both of these people who write responses to the book a book by Errol Morris whose name we mentioned a couple of times in criminal law advanced criminal law he's someone who at the filmmaker and also an author I mean he wrote a book called a wilderness of error the trials of Geoffrey McDonald raising very serious concerns that he had and a painstaking book going through an awful lot of the evidence and he reaches the conclusion you concluded he reached the conclusion he didn't actually say as much but that Jeffrey MacDonald is innocent of the murders that led to Richard Condon writing a review of that book and our Law Review which basically takes Errol Morris you chastise him and reach your own conclusion which you reached in the past which is that Jeffrey McDonald did in fact in spite of everything Errol Morris wrote in this book kill his wife and children and Nadja Citroen also wrote a review of that Errol Morris book where Roger ends up concluding that that yes there are some questions that do raise some kinds of concerns about how fair the trial was but nevertheless Jeffrey MacDonald did kill his wife and children didn't I'm Alex yes right he put the did on at the very end Jeffrey MacDonald did kill his wife and children but could you talk a bit I'm just about how fair the trial was in your eyes to what extent the publicity that was accompanying the trial was a problem we were you there for the voir dire at all no okay but just talk a bit about the media coverage of this trial that while the trial was going on there was an enormous media coverage day-by-day coverage was on the APU the ticker it was national news and it got a great deal of attention probably that's an inevitable problem that we have in this democracy where the press is free to write anything that they want to write it does raise serious questions I think all in all Judge Dupree ran a fair trial I think that some of the things that he did were legitimately subject to being questioned by the defense on appeal among them the exclusion of these witnesses under Federal Rule of Evidence 8004 that would have rehabilitated Stokley into a witness to the murder but my one of my conclusions in the Law Review article is that there is a problem with continually again and again and again raising the same issues um I I think that there is an enormous a very large statutory burden under Section 2255 you have to virtually show prove actual innocence in order to get a rehearing so I think the Fourth Circuit did the wrong thing in ordering this 2255 hearing in the first place I point out in the in the article that so many of these issues in fact I think all of them have been contested ruled on by the trial judge did you pre ruled on by the Fourth Circuit and on a couple of occasions ruled on by the Supreme Court and as much as I have libertarian instincts and and want defendants to have a fair trial is enough is enough I think there is a point where you don't want to keep retrying a case again and again now I don't think it's any accident that this hearing came up after Freddie and Mildred Kassab both died moreover almost all of the witnesses including Helena stoeckley are dead all the witnesses that Morris talks about in his book that that would buttress MacDonald's story of the of the murders there's a federal marshal who two years ago made an affidavit saying that he escorted Elena Stokely from Pickens South Carolina to the courthouse in Raleigh when she was under arrest as a material witness and during that long drive she confessed the crimes to him but the records as well as the live testimony last September on the part of all the people in the marshal's office was that Jimmy Britt the marshal could not have been telling the truth and he knowingly lied because it's very clear that he had he didn't set foot in south carolina he only picked up Elena's Stokely at the jail in Raleigh and drove her ten minutes in the in the presence of a matron to the courthouse he wasn't with her for six hours he was with her for ten minutes brent is dead there are investigators who took upon themselves the task of rehabilitating Geoffrey McDonald's innocence and have supposedly uncovered other witnesses those witnesses are all dead how long do you keep it up I suppose you keep it up theoretically until Jeffrey MacDonald is either released or he himself has has died but it's a very troublesome thing to me and despite what I said about the First Amendment I was troubled by Morris's book for for two reasons one reason is that he told me when he interviewed me for the book that he hadn't he had just started working on it and that he hadn't really made up his mind whether Jeffrey MacDonald was guilty or innocent well in fact if you read the book you see that he started working on it ten years ago and it's very clear from what he says in the book that he does believe and he reached the conclusion a long time ago that Jeffrey MacDonald is innocent second of all I really believe that the publication of his book was timed to coincide with this hearing and to influence the public and through the public the judge in hearing this testimony now this does this in in in ruling in MacDonald's favor on the basis of triple hearsay testimony and and whatever else he's got there he he may McDonald may prevail the judge may feel as roger has said to me on occasions that there there are some things that are troublesome in the case and maybe judge Fox will feel that those troubles and things are sufficient to order a new trial well if you order a new trial now after how many years almost 40 years with with all the witnesses and more than those that I've talked about all dead it's pretty clear it's self-evident that no new trial could ever result in a conviction and that the judge grants the writ and releases him he's out for good that's the that's the end of any prison term for Jeffrey MacDonald and I I just have a problem with writing a book that is in my view consciously intended to to influence the course of justice he spent ten years on the book it wasn't that oh there's going to be hearing or let me write a book quickly which is now going to lead to the Fourth Circuit determining this should be hearing he spent an awful lot of time painstakingly going through it all wasn't just from the tip of the but let me just add one thing and that Roger will give the concluding or Martin sometimes it takes an awful lot of years before a conviction is shown to have been an improper conviction any number of examples so the fact that so many years have gone by don't that doesn't mean in and of itself that we have to leave it we have to accept the fact that enough is enough because sometimes it takes many many years before finally people become aware that conviction was simply a wrongful conviction but Roger so a couple of things to sort of close the first is this is a as I was reread or reading the jomega Joe McGinniss book last night that's the jury selection this was very interesting mcDonald's defense team hired a jury expert this is in the book hired it a jury expert and you know ran the case and said who's the ideal juror here interestingly and even McDonald is described in the book as sort of not believing it the ideal juror according to their expert was someone who would be so to speak conservative um white middle-aged or older very establishment and the thought was at least according to the jury research that was done for the defense team was you need the what the consultant was saying was you need someone in the jury box who will empathize with you and say that could have been me wrongly placed in the jury box and so that's what though that those are the that decision-making process is what guided or those thoughts guided the defense team in the decision-making process interestingly an ex seal no not seal the next Green Beret I beg your pardon the seals are today's Green Berets an ex-green beret was on the jury um and is described as actually weeping when the verdict came in on which was guilty right guilty on all three counts second thing is as to Earl Morris this is my own private view that as to say it's a completely speculum guess I think that Morris in writing the book sometimes you see him on the New York Times online on the opinion page right here aute a book believing is seeing that looks it sort of well maybe it isn't that we see data and then process it rather our minds conditioned us to see what we want to see and I think that Morris has what I call the Hannah Arendt problem which is to say I he's got a great theory but he picked the wrong case ah because the facts here at least in my view um ultimately I think do show that McDonald did italics commit the murders third thing is for any of you who are interested in reading more about this and be careful because you can sort of go down the rabbit hole with this case and become obsessed with it but I sent professor Klein an email before the panel a week or so ago or two weeks ago um links it's an email with links to four different articles one is my review one is Richard Khan's review there's a marvelous Washington Post magazine article about Earl Morris and the book um and I think there might be one other article or so on it but um if you are interested in it I the it is very engrossing and I could I could send you those links or professor Klein could from the email that I did I think our time is up so I'm going to give - yeah so what we've attempted to do in just the 50 minute period is give you some kind of perspective of this trial which again is one which an awful lot of people have spent a great deal of time analyzing whether it's possible to do justice in any way in such a short period of time - what had happened I'm not sure but I do hope that it's been educational and we've raised some basic kinds of concerns and issues so I just want to thank Richard Khan and Roger and the Law Review for putting this together thanks

Channel: Touro Law Center

Views: 135,916

Keywords: Jeffrey MacDonald, Richard Cahn, Kassabs, family, murder, convicted

Id: vCrNHuueYFI

Length: 51min 14sec (3074 seconds)

Published: Mon Mar 11 2013