Midnight Thoughts of Phil Callahan

October 7, 2019

The legal phase of the MacDonald Case appears to be coming to an end.  The United States Supreme Court refused to hear MacDonald's appeal of the 4th Circuit's 12/21/18 decision, and they denied MacDonald's petition for Habeas Relief on 10/7/19.

December 21, 2018

The 4th Circuit ruled on whether Judge Fox erred in finding that MacDonald did not establish by clear and convincing evidence that no reasonable factfinder would have found him guilty of the offense.  By a vote of 3-0, the 4th Circuit concluded that,
Our comprehensive review of the trial and postconviction evidence convinces us that MacDonald has not met the rigorous requirements of § 2255(h)(1).  As we cautioned in our 2011 decision, § 2255(h)(1) was "designed to ensure that [it] could be satisfied only in the rare and extraordinary case."  See MacDonald, 641 F.3d at 614-15 (internal quotation marks omitted).  Though we have given MacDonald the opportunity to do so, he has not demonstrated that his is one of the rare and extraordinary cases justifying pursuit of a claim premised on newly discovered evidence by way of a successive § 2255 motion.  Simply put, we cannot say that the new evidence underlying MacDonald's Britt and DNA claims, considered with all the other evidence, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found him guilty of the murders of his wife and daughters.

For all intents and purposes, this decision has brought a legal and emotional finality to this case.  MacDonald's lone legal option is to appeal to the United States Supreme Court, but it is highly unlikely that they would even hear the case.  MacDonald is eligible for parole in 2020, and he could finally admit his guilt and express remorse for his crimes.  Similar to the Supreme Court hearing this case, this scenario is also a long shot.  In terms of an emotional finality, the 4th Circuit's decision brings peace to Colette's brother (e.g, Bob Stevenson) and vindication to Brian Murtagh and dozens of CID/FBI/DOJ staff members who helped to bring a mass murderer to justice.

August 23, 2016

Since the 2012 evidentiary hearing, Judge Fox has denied MacDonald relief not once, but twice.  His first denial was put forth on 7/24/14, and Judge Fox ruled that "MacDonald has failed to establish, by clear and convincing evidence, that no reasonable fact finder would have found him guilty of the murder of his wife and two daughters.  Alternatively, the court finds that MacDonald has failed to adequately establish the merits of any of his claims."

The defense filed an appeal based on a DOJ report that concluded that on three separate occasions, government experts used language that was scientifically invalid.  All three incidents focused on the experts use of the word "sourced" when comparing hairs under a microscope.  Two of the incidents were found in singular lab reports and the third incident involved six lines of testimony at trial.  Microscopic hair comparisons cannot source a hair to a specific person, so the best case scenario is that the hair exhibit is "similar" to an exemplar obtained from the accused or the victim. 

The government argued that the three mistakes did not alter the inculpatory nature of the evidence that convicted MacDonald at trial.  In addition, DNA testing on the hairs in question did not result in a single exculpatory result.  The DNA test result (e.g., Kimberley's DNA profile) of a bloody head hair confirmed the conclusion drawn by one of the government experts, the DNA test result (e.g., unsourced hair) of a pubic hair found under Colette's body contradicted the experts conclusion that its source was Jeffrey MacDonald, and the AFIP was unable to extract a DNA profile from a bloody hair that was microscopically sourced to Colette MacDonald. 

On 5/18/15, Judge Fox ruled that he would not alter or amend his 7/24/14 decision.  He concluded that the three inappropriate statements had no bearing on the mountain of evidence linking MacDonald to this horrific crime.  In essence, using the word "sourced" instead of "similar" does not change the fact that Colette's blood was on her husband's pajama top in 10 locations before the garment was torn or that fibers from MacDonald's pajama top were found under Colette's body or that fibers from his pajama top were found under his children's bedcovers or that bloody impressions sourced to his pajama cuffs were found on bedding used to transport Colette and Kimberley to their bedrooms or that the Pajama Top Theory proved to a jury of his peers that MacDonald placed his pajama top on his dead wife's chest and stabbed her through the garment 21 times with the ice pick. 

The defense is currently appealing Judge Fox's decisions to the 4th Circuit Court.  Considering that MacDonald has the burden of proof and that the burden is "extraordinarily high," the chances of the 4th Circuit Court granting him relief are extremely remote.

September 26, 2012

Closing arguments were presented yesterday at the evidentiary hearing and it's safe to say that the government won the legal proceedings by a landslide.  Brian Murtagh took apart the DNA arguments leveled by the defense and provided a thorough overview of the trial evidence to Judge Fox.  Murtagh reminded Judge Fox that none of the 29 DNA exhibits matched the DNA profile of Helena Stoeckley and/or Greg Mitchell, and that the broken, bloody limb hair found clutched in Colette's left hand matched the DNA profile of Jeffrey MacDonald.  John Stuart Bruce convincingly argued that in his 5 affidavits, Jimmy Britt lied on 27 separate occasions and that there wasn't a single defense or government witness who could corroborate any of Britt's dubious claims.  If I were a betting man, I would wager that Judge Fox will deny MacDonald a new trial and that the 4th Circuit Court will concur with his decision.

March 19, 2009

Here they go again.  Begging the court system to listen to "all" of the evidence in this case.  What exactly does that mean?  Judge Dupree, the 4th Circuit Court, and Judge Fox have all had to endure the smoke and mirrors show put forth by various incarnations of the MacDonald defense team.  Sans the DNA test results, the legal system has listened to "all" of the evidence.  Considering the fact that the DNA test results provide additional proof that MacDonald was the wielder of the club that fractured Colette's skull and shattered both of her arms, I fail to see how those test results would be of any benefit to this convicted family murderer.  MacDonald refuses to accept that he is running out of time.  All of the sourced trace evidence in this case points directly at MacDonald as the lone murderer of Colette, Kimberley, and Kristen MacDonald.  His home invader story is a fairy tale built on Esquire magazine articles and chance meetings with roommates of his brother.  The 4th Circuit Court can end this nonsense and allow MacDonald the freedom to clean the prison toilets without having to think about his next appeal.


Phil Callahan's thoughts on the Jimmy Britt saga

The defense motion regarding the claims of a former U.S. Marshal, Jimmy Britt, is still under consideration by Judge Fox.  There is no real timetable as to when Judge Fox has to make his decision on the Britt motion, but as evidenced by his prior rulings in this case, he will be thorough.  Britt approached the MacDonald defense team in 2005 and claimed that he was present when co-prosecutor James Blackburn allegedly threatened Helena Stoeckley.  According to Britt, the threat revolved around Blackburn seeking to prosecute Stoeckley for murder if she testified at trial that she had witnessed several of her acquaintances attack the MacDonald family.  Britt's rationale for waiting 26 years to divulge this information was out of respect for Judge Franklin Dupree.  Dupree, however, died in 1995, which meant that Britt's supposed conscience took 10 years to kick in as MacDonald remained behind bars.

Britt could also tell the defense team with a straight face that he could not remember whether Brian Murtagh or George Anderson were present during this meeting with Stoeckley nor could he describe the room where this meeting took place with any semblance of clarity.  Britt has admitted to having substance dependence issues, he's had financial difficulties in the recent past, and according to the late Peter Kearns, he was reprimanded by the CID in the 1970's.  In my opinion, Britt's selective memory combined with the skeletons which have jumped out of his closet since the motion was first filed, will result in future legal headaches for MacDonald's rotating band of lawyers.

The following text was written and graciously provided to my website by MacDonald case researcher Robyn Bishop.

Judge Fox's order dated November 4, 2008

It is clear that Judge Fox was aware, and made certain he let everyone know he was aware, that the defense was attempting to piggy-back several motions under a singular Pre-Filing Authorization.  It appears that the defense hoped that Judge Fox would reach a decision on the merits of these additional motions.  Judge Fox did not waste his time reaching decisions upon the merits.  Appeals courts and other high courts have and will rescind orders reaching a decision on merit if the court issuing the order does not have jurisdiction.  In this case Judge Fox clearly did not have jurisdiction on motions DE-122 Motion to Add Additional Predicate and DE-144 Motion to Supplement Itemized Evidence.

The denial of DE-124 Motion to Expand the Record was simple: Judge Fox found no merit in this claim.  The defense based this motion on material that was new or previously rejected. In fact, most (if not all) of the material was previously rejected. Thus Judge Fox accepted the government position and denied this motion.

The Motion to Vacate pursuant to 28 USC ss2255 [DE-111] was the only motion with the authorization to be before Judge Fox. In order for this appellant to receive a PFA it is only required that they show a prima facie case that they might be entitled to relief and a claim of constitutional error. Once the motion had been filed, the gate-keeping standards became much more restrictive.

Judge Fox ordered the government to respond to the motion since on the face of the motion there was no evidence to prove petitioner was not entitled to relief. Neither was their evidence showing that he WAS entitled to relief, until the government responded and Judge Fox reviewed the material.  Most, if not all, claims made by the defense are res judicata (Latin for "the thing has been judged").  There has been no finding of government misconduct.

Judge Fox stated that if Jimmy Britt truly heard the words he ascribed to Blackburn; it still does not prove a threat by Blackburn.  At the time of the interviews, Helena was without counsel and Blackburn would have been obligated to inform Helena what would happen if she testified to being present at the crime scene.  The defense cannot prove that Helena would have testified differently without Blackburn's alleged comments.  Judge Fox is saying "for the sake of argument {arguendo}, let us assume Blackburn did say he would indict Helena if she testified that she and friends were present at 544 Castle".  This statement would still not be enough to exculpate MacDonald.  Without being able to determine the exact context the statements are useless.

The government filed a Motion for Publication with Modifications, the order discussed herein.  There was no legal precedence cited for this motion.  The government filed this motion requesting that certain "facts" be edited into the order as Judge Fox issued it.  The modifications requested included:

  • (1)  The fact (with substantial documentation) that Helena Stoeckley was not held in Greenville Co. jail prior to being brought to Raleigh for the trial.  Helena was held in the Pickens Co. jail.
  • (2)  The fact that (with considerable documented evidence) Jimmy Britt was not the DUSM that picked Helena up in South Carolina and he was not involved in the transport of Helena to Raleigh, NC.
  • (3)  The fact (again with proof) that DUSM Vernoy Kennedy and a female guard signed for and picked up Helena at the Pickens Co. jail the day before her meeting with the defense and then prosecutors in Raleigh.
  • (4)  The fact (more evidence) that DUSM Kennedy met up with DUSM Dennis Meehan and Janice Meehan in the Charlotte NC area and exchanged custody of Helena.  The Meehans then transported Helena to the Wake Co. jail in Raleigh NC.

The government hinted that it has additional evidence in its possession that further proves the lies and misrepresentations contained in Jimmy Britt's affidavit and thus the motions related to his allegations.  Jimmy Britt lied.  Helena was not in his presence during the drive from S. Carolina to N. Carolina and therefore, it is impossible for her to have made the alleged confessions as contained in his affidavit.  By the same token, Britt's claims of having heard Helena tell Blackburn the same confession the next day during their meeting is a lie.  Since Helena was not in his presence the previous day she could not have confessed to Britt, period.

Despite the defense assertions in the Motion for Certificate of Appealability (COA) on these denials, it is not an adjudicated fact that Britt was truthful in his affidavit.  In fact, the truth or falsity of Britt's comments are irrelevant to the rationale Judge Fox used in coming to his decisions.  The Motion for COAs is denied.  The motion to publish with modifications is denied except for the correction of non-substantive clerical errors in the order.

Motion Pursuant to 28 USC 2255

The Motion to Vacate, set aside, or correct a sentence under 28 USC 2255 is the modern descendant of the writ of habeas corpus.  To qualify, a prisoner must be in custody due to a judgment in a U.S. District Court.  There is a set of rules governing such motions.  Rule 9 of these rules requires the prisoner to request a Pre-Filing Authorization (PFA) from the court before filing a second or successive section 2255 motion.  District Courts are not required to hear applications for writ of habeas corpus except under the provisions listed in ss2255.

There are strict gatekeeping standards that must be met and overcome.  A motion will fall into one of two categories – (1)  motions based on matters previously presented in a habeas petition, and (2) motions based on matters not previously presented in a habeas petition.  Motions falling into the first category are dismissed.  Motions falling into category (2) shall be dismissed unless:

  • (a)  it is based on a new rule of constitutional law, made retroactive to the cases by the U.S. Supreme Court; OR,
  • (b) (i) the underlying facts on which the claim is based could not have been discovered through the exercise of due diligence, and,
  • (ii) the facts, if proven and viewed with the evidence as a whole would be enough to provide clear and convincing evidence that no reasonable juror would vote to convict without constitutional error.

In other words, a prisoner filing a successive habeas motion must show either (a) or (b).  IF (b) is used, then the prisoner must show part (i) and (ii).  The language concerning "without constitutional error" is very important.  A prisoner must have some so t of constitutional based claim, not just one of  "factual innocence."

The prisoner submits his request for a PFA to the Circuit Court of Appeals.  The Court of Appeals must approve or deny the PFA within 30 days.  If the PFA is granted, the case goes back to the District Court.

At this time, it seems unlikely that inmate would get another PFA.  The only item that even has a chance of receiving a PFA is the DNA test results.  It doesn't seem likely that a PFA would be issued, because a claim involving DNA results does not rely on Constitutional error, thus failing to satisfy the gatekeeping requirements for a successive habeas petition.  Even if the Fourth Circuit court issues a PFA on the DNA results and the case goes back to the U.S. District Court, inmate must still convince a Court that, upon hearing the new evidence, no reasonable juror would vote to convict.  In other words, if even one reasonable juror would still vote to convict, even after hearing that some DNA found in the home was unsourced, then the conviction will stand.


Do I smell desperation when the MacDonald defense team argues that DNA test results are not as significant as alleged confessions?  In their motions to Judge Fox in the spring of 2006, the defense team appeared to take the stance that the absence of Greg Mitchell's DNA at the crime scene was not as important as the claims from several individuals that Mitchell confessed to them that he took part in these brutal murders.  In a similar vein, the defense motions also focus on the early 80's confessions of Helena Stoeckley, while ignoring the fact that her DNA was not found at the crime scene.

This reminds me of James Blackburn's classic line during his closing arguments at the 1979 trial.  Blackburn stated that "I can only tell you from the physical evidence in this case that things do not lie.  But I suggest that people can and do."