Please find attached a copy of the prosecutive memorandum requested by you for the above-captioned matter.

This memorandum consists of the following information:

A.  Synopsis of the Case

B.  Background of the Accused

C.  Statement of Facts

D.  Law of the Case

E.  Statement of Proof in Relation to the Elements of the Offense

F.  Undivulged or Unobserved Evidence at the Article 32 Investigation

G.  Probable Defense or Weak Points in the Government's Position

H.  Conclusion and Recommendations

A.  SYNOPSIS OF THE CASE:

At 3:42 A.M. on the 17th of February, 1970, Miss Janie C. Landen, telephone operator, Carolina Telephone and Telegraph Company, Fayetteville, North Carolina, notified Fort Bragg Military Police that she had a caller on the line reporting a stabbing at 544 Castle Drive, Fort Bragg. Several MP patrols were dispatched to this location, and access to the otherwise locked apartment was gained by means of the utility room door which leads directly into the master bedroom. Inside these military quarters the Military Police found CPT.(Dr.) Jeffrey MacDonald, clad only in pajama bottoms, lying with his head on the shoulder of his dead wife, Colette, who was in a supine position on the bedroom floor. In the north and south bedrooms the dead bodies of Kristen MacDonald, age two and one-half, and Kimberly MacDonald, age five and one-half, were found respectively. Jeffrey MacDonald informed the Military Police that four "hippies" had attacked him and killed his wife and children; that he was going into shock; that he had removed a knife from his wife's chest; and that he must be allowed to "check his kids." MacDonald was transported to Womack Army Hospital and was treated for a 1 - 2 cm stab wound in the chest at the seventh intercostal space which had caused a twenty per cent collapse of the right lung.

MacDonald was allowed to leave the hospital to attend the funeral of his family on the 21st day of February, 1970. MacDonald gave several statements which contain both an abundance of facts and contradictions as to how the events of February 16-17, 1970, occurred.

On April 6, 1970, the preliminary laboratory report of the results of the processing of the crime scene indicated that MacDonald may have staged the entire crime scene. From May to October of 1970, a Military Article 32 Hearing was conducted at Fort Bragg, North Carolina, by Colonel Warren Rock, for the specified purpose of determining whether the charges against MacDonald should be referred to a Military Courts-Martial. This Article 32 Hearing was a celebrated affair and was conducted in a questionable atmosphere. The Hearing Officer apparently applied an incorrect standard of proof, to wit, proof beyond a reasonable doubt. The Hearing Officer did not recommend the referring of the charges to a Courts-Martial because "he did not believe them to be true."

Subsequently, CPT. Jeffrey MacDonald applied for and received a hardship discharge from the Army because his family had been murdered.

B.  BACKGROUIND OF THE ACCUSED:

At the time of the murders, Jeffrey MacDonald was a 26-year-old Captain in the United States Army Medical Corps. His physical condition was that of an athlete who regularly engaged in sports, who boxed, ran, and made parachute jumps. In 1970 he weighed 175 pounds, and was 71 inches in height. His background reveals an aggressive character and a propensity for marital infidelities, but no criminal behavior.

His education was as follows: He attended Princeton University for pre-med, Northwestern University Medical School, and interned in surgery at Columbia Presbyterian Hospital in New York City. He volunteered for the U. S. Army and for assignment to Special Forces; all of his service in the latter was at Fort Bragg, North Carolina.

The driving force in this man's life vas to become a doctor; he achieved that goal despite many personal obstacles. Prior to the events of February 1970, Jeffrey MacDonald could appropriately be termed an "All American Boy.

Jeffrey MacDonald married Colette in his second year at Princeton and both worked to get him through school and pay living expenses. She was pregnant at the time of their marriage.

CPT. MacDonald is very intelligent and action oriented. He is described as having a life drive or unsurmountable power. In addition, it has been said that success is a driving motivation with him.

C.  STATEMENT OF FACTS:

At 3:40 A.M. on February 17, 1970, a telephone operator with the Carolina Telephone Company, Fayetteville, North Carolina, received a telephone call from a man who repeated several times, "I want M.P.'s and ambulance at 544 Castle Drive." The operator contacted the Military Police at Fort Bragg and attempted to get the caller to repeat the message to the Military Police; however, she was unable to get the caller to say anything and she informed the M.P.'s that she had received a call instructing her to send the Military Police and an ambulance to 544 Castle Drive. At 3:42 A.M. the caller came back onto the line and in response to a question from an operator regarding what was wrong, said "I've been stabbed." The operator said this was told to her in a very faint voice and she relayed this information to the Military Police at Fort Bragg. M.P. patrols were dispatched by radio to 544 Castle Drive.

About 3:50 A.M. the M.P.'s arrived at 544 Castle Drive and upon checking the front door, discovered it was locked. The M.P.'s entered the apartment through the northeast rear entrance, which they found unsecured and open. The telephone operator kept the line open to 544 Castle Drive for about 15 minutes and during this period of time, heard the Military Police patrol arrive at the address and heard movement inside the residence.

The M.P.'s found Colette MacDonald lying on her back on the floor of the east or master bedroom with Captain Jeffrey MacDonald lying on his stomach on top of his wife's left shoulder. Captain MacDonald asked about the condition of his children and once stated, "Oh, Jesus Christ, look at my wife". Captain MacDonald further said, "Check my kids. How are my kids?" He asked for mouth to mouth resuscitation, then collapsed and was administered first aid. Colette MacDonald was apparently, dead when the M.P.'s arrived. The M.P.'s also discovered the bodies of Kristen MacDonald, age 2, in her bed in the north bedroom, and Kimberly MacDonald, age 5, also in her bed in the South bedroom. The M.P.'s at the scene placed a radio call for medical assistance.

Lt. Joseph L. Paulk, was the M.P. duty officer on February 17, 1970, and was one of the first M.P.'s to arrive at 544 Castle Drive. Lt. Paulk stated that he looked into the doorways of the north and south bedrooms and assumed the children were dead because there was no movement. Thereafter, Lt. Paulk entered the living room, at which time he noted dim lighting. Lt. Paulk stated that after administering first aid to Captain MacDonald he interviewed him to obtain information as to what had occurred. MacDonald related at that time that, while sleeping on the couch in the living room, he had been awakened and had found intruders in his home standing at the foot of the couch upon which he was lying. He also heard his wife screaming for help. MacDonald further related that these intruders attacked him, beat him with a club, stabbed him, and that he had been rendered unconscious, and upon awakening, found the intruders gone and his family dead. MacDonald furnished a sketchy description of the intruders at that time. In general, he described them as two male Caucasians, one male Negro, and one female Caucasian, holding a candle and who had uttered the words, "Acid is groovy, rain is groovy, kill the pigs."

Sgt. Richard D. Tevere of the Military Police Battalion was the first M.P. to enter the rear door and observe the victims in the east bedroom. There are two telephones in the MacDonald apartment, one located in the east bedroom and the other on the wall just inside the kitchen. When first observed, the telephone in the east bedroom was off its cradle and lying on the dresser. Sgt. Tevere picked up this telephone receiver using his index finger and thumb, attempting to call for assistance. He thereafter replaced the handset on the cradle and subsequently placed the handset in a dangling position. There were no fingerprints found on either telephone and a few smudges were found on the telephone in the east bedroom. The word "Pig" was written in blood on the headboard of the bed in the east bedroom. There was also a wet spot which appeared to be urine in the center of the bed in this bedroom. Numerous fibers from MacDonald's pajama top were located in the master bedroom, underneath Colette's body and between the headboard and the mattress of the bed. Also located in the east bedroom were fragments from a rubber glove.

By the time Captain MacDonald was removed from his apartment via a wheeled stretcher, there were approximately 10 - 12 persons in the apartment including M.P.'s, CID, and medical personnel. As MacDonald was being taken from the apartment, he made a point of saying several times that he had removed from his wife's chest the knife found on the floor in the east bedroom in front of the bureau.

The body of Colette MacDonald, located in the east bedroom, was found lying on the floor, on her back, with her right arm partly across her midsection and her left arm extended above her head. She was dressed in pink pajamas and draped across the upper part of her body was a blue piece of material later identified as the torn pajama shirt of CPT. MacDonald. The lower section of her body was covered with what appeared to be a white towel. Both of these items bore blood stains. The autopsy of Colette MacDonald revealed that she had seven incised (knife) wounds and twenty-one puncture-type (ice pick) stab wounds on her chest. There were nine knife wounds in her neck with some penetrating the trachea and thyroid which caused much internal bleeding. On Colette's head there were six blunt trauma (blows with a blunt instrument). The most significant was the one over her nose which caused a small skull fracture. Her arms were bruised and lacerated and both were broken, probably with a blunt instrument. The stab wounds in the chest were fairly perpendicular to the body. There were no narcotics found in her body. Some hairs (blond or light brown and 4-5 inches in length) were entwined in her right hand. She was four to five months pregnant at the time of death.

The torn blue-colored pajama top (later identified as the garment of Jeffrey MacDonald) bore large blood stains (identified as mostly Type A, that of Colette MacDonald); some stains of Type AB (that of Kimberly MacDonald); and two stains identified as Type B.(that of Jeffrey MacDonald). The white towel located across Colette MacDonald's abdomen revealed several blood stains which suggested that some bloody object or objects had been wiped off on the towel (the stains were identified as Type A, the same as that of Colette MacDonald, and Type AB, the same as that of Kimberly MacDonald).

At Colette MacDonald's feet was a blue-green colored throw rug with one corner of the rug folded over. Lying on the folded corner of the rug was a pocket from the blue pajama top previously mentioned. The pocket bore small blood stains (Type A - Colette MacDonald) but was virtually free of blood stains when compared to the remainder of the blue pajama top.

Jeffrey MacDonald in his statements has related that his smaller daughter, Kristen, had urinated in the bed in the east bedroom and this was the reason he was sleeping on the couch and not in the bed in this master bedroom. Laboratory analysis of the urine stain has shown that Kristen, with Type O blood, could not have produced this stain and that it was made by a person with either A Type blood (Colette MacDonald) or AB Type blood (Kimberly MacDonald) and most probably the AB Type with a deterioration of the specific blood type factor for B in AB blood.

On the floor at the foot of the bed in the east bedroom and near the hallway door was observed a bloody bedspread and sheet which had apparently been pulled from the double bed in this bedroom. The sheet bore blood stains (Type AB - Kimberly MacDonald) and blood stains on the bedspread were Type A (Colette MacDonald). An examination of the sheet revealed a finger section of a surgeon's latex glove, bearing Type A blood (Colette MacDonald). Additionally, on the white rug just in front of the master bedroom large double dresser, a paring knife, brand name "Geneva Forge" stained with Type A blood (Colette MacDonald) was found.

Kimberly MacDonald was found in her bed in the south bedroom. The light was off in this room when Kimberly was first found. She was dressed in a nightgown, covered and tucked in with bedcovers. Her face bore evidence, of a severe beating and stab wounds were noted in the right side of her neck. A large amount of blood was present. A fiber from MacDonald's pajama shirt was found wrapped in Kimberly's bedclothes.

Kristen MacDonald was discovered lying in her bed, dressed in pajamas, with the lower portion of her body covered with bedding. Her room was also dark. Kristen's body bore stab injuries to the chest, back, and one of her hands. She was observed lying on her left side and about one inch from her mouth was a plastic baby bottle containing what was later identified as residue of chocolate milk. The rubber nipple of the bottle pointed towards the child's face. A fiber from MacDonald's pajama shirt was found under Kristen's fingernail.

When first viewed, the bodies of the children suggested that they were killed in their beds, that they were asleep or unconscious, and that they had not been moved. These suggestions were evidenced by the fact that they were covered with bedding and Kristen, besides being in the position of a sleeping child, had a plastic baby bottle in her mouth. Kimberly also lay in a position of sleep and had bedcovers tucked around her back and under her body. The only concentration of blood around Kimberly, at first sight, was that which was around her face and neck and normally would have been there if she had not been moved. Upon closer examination, it was seen that her blood was on the tips of her hair which were not close enough to any of her bleeding injuries to cause such a contamination, unless she was in an entirely different position when her injuries were inflicted. Additionally, when her body was moved, signs of another heavy blow were located on the left side of her face. Since a substantial amount of Kimberly's blood was located on the floor of the east (master) bedroom, this blow was most probably sustained in that room before she was moved back to her own room and placed in bed. Additional support for the observation that Kimberly was transported from the east (master) bedroom to her own room after sustaining injuries is found in the fact that when the bedcovers were removed from Kimberly's body by investigators, threads from Jeffrey MacDonald's torn pajama shirt were found on the sheets near her body.

There is no evidence that Kristen was in any other location but her own bed while the murderous activities were taking place around her. There were large pools of blood (Type O - Kristen MacDonald) found on the floor adjacent to her bedside, and these blood pools were not in a location where they would have been if she had not been picked up and held over the side of the bed. This activity then took place when she was probably receiving the stab wounds to her back and while she was bleeding heavily from chest wounds already inflicted. Kristen did not sustain any blows from a blunt object similar to that used in the assault on Colette and Kimberly MacDonald and her wounds consisted of stab wounds.

The physical and medical evidence revealed that all stab wounds received by the female victims were inflicted straight into the body and did not appreciably deviate in direction; that this indicates that the assailant was positioned directly over the individual body as it lay prone and that the instrument inflicting the stab wounds was moved directly in a straight downward movement into the body. There were no slash-type wounds to any of the female victims and this indicated that all victims were immobile when stabbed.

On the top sheet covering Kristen MacDonald a large concentration of blood (Type A - Colette MacDonald) was found in a pattern of direct bleeding rather than contamination from an object soaked with A Type blood. Additionally, on the wall just above the bed of Kristen, splattered blood spots, again the same type as that of Colette MacDonald, were located in a pattern suggesting that the spots were sprayed from a bloody object moving in a downward direction towards the bed. The location and quantity of blood of the type of Colette MacDonald in this room dictates the conclusion that Colette was present in the room and was bleeding heavily onto the bed of Kristen, prior to Kristen sustaining any bleeding injuries. This is further evidenced by the fact that the clothing of Colette bore no blood of the same type as that of Kristen.

Two footprints (determined to be similar to the footprint of Jeffrey MacDonald's left foot) were located inside Kristen's room on the floor in a pattern indicating departure from the room when the prints were made. One print was determined to have been made in blood type A (Colette MacDonald) or AB (Kimberly MacDonald) and the other print was identified as having been made in Type A blood (Colette MacDonald). No Type A or AB blood in any concentration was located on the floor of Kristen's room. Therefore, in order for Jeffrey MacDonald to pick up a quantity of such blood types to leave a footprint in the room, he would have had to step directly onto the bleeding body of Colette MacDonald or onto the bundle of bedding previously mentioned as having been located during the crime scene search in the master bedroom.

The living room was in good order except for the area in front of the couch where Jeffrey MacDonald claimed he was sleeping when the attack on him took place. The couch was located against the east wall of the living room. In front of the couch was an overturned coffee table resting on its side, on top of an assortment of magazines lying on the floor. On the top surface of the coffee table there was found a substance determined to be candle wax of the consistency of a small pink birthday candle. Additional wax drippings were found in the south bedroom. A few feet west of the coffee table, on the living room floor, was a flower pot, which, when first noted by investigators, was on its side but, apparently uprighted by one of the medical personnel. A search of the couch and surrounding area revealed no blood evidence. However, a pair of eyeglasses (property of Jeffrey MacDonald) was located on the floor near the living room window and a small "spot" of blood (Type O - Kristen MacDonald) was located on the outer lens. Type AB blood (Kimberly MacDonald) was located on the top edge of an Esquire magazine which was located under the edge of the overturned coffee table in the living room. One of MacDonald's slippers had its toe resting on top of one of the legs of the coffee table. A bottle of glue, which apparently had been on top of the coffee table, was found located on the east side of the coffee table. If the coffee table was knocked over, as related by MacDonald, it would appear that the glue bottle would be on the west side of the table instead of the east side. In addition, it is hard to understand how the magazines landed under the coffee table's edge. It is even harder to explain how MacDonald's slipper came to rest on top of the leg of the coffee table. The coffee table is top heavy and numerous tests were conducted to see if it would stay on its side when knocked over. It always fell on its top, with one exception, when it hit the leg of a nearby chair and landed on its side.

The dining room appeared to be in good order and showed no signs of a struggle. There were Valentine cards standing on the table in the dining room and they remained undisturbed. The china cabinet which contained glassware and china was also undisturbed. The throw rug in the dining room area was of the type which could be moved easily and rested upon the waxed surface of the floor. When observed after the killings, the throw rug had not been disturbed.

The kitchen was situated off and to the west of the dining room. The main ceiling light in the kitchen was on and a wall telephone was located just inside the kitchen entrance on the east wall of the kitchen. The telephone receiver was off the hook and was hanging down-ward, resting on the kitchen floor. Several blood stains were on the floor near the kitchen-dining room entrance way and the stains apparently had been deposited there by some object stained with blood later identified as the same type as that of Colette MacDonald (Type A) and Kimberly MacDonald (Type AB). Several blood spots (later identified as Type B, that of Jeffrey MacDonald) were located on the floor of the kitchen in the area directly in front of a kitchen sink storage cabinet. These particular blood spots had the appearance of direct bleeding onto the floor and from their configuration appeared to have fallen from a distance of about 20 inches from the source of the blood to the floor.

CID Investigator William F. Ivory noted that upon his arrival at the crime scene about 4:00 A.M. on February 17, the weather was rainy, cool and about 40 degrees temperature and the ground was wet. According to Ivory, it had been raining the entire evening of February 16- 17, 1970, with rain being quite heavy during the early evening. Apparently no mud, water or grass was located in the apartment when the first investigators arrived. After the herd of investigators had been through the apartment, some blades of grass were discovered on the floor.

At first light on the morning of February 17, 1970, an outside search began in the area of the residence. The search produced an ice pick and a paring knife (Old Hickory) which were located under a bush immediately outside of the utility room door. Further, a 31-inch length of wood was found outside of and inches from the doorstep of the utility room. These weapons and the paring knife previously located on the floor of the east (master) bedroom were most probably the weapons used in the murders. The weapons bore blood stains of the type of the female members and splinters from the club were found by the bodies of Colette and Kimberly MacDonald.

In an attempt to match the pieces of rubber surgical gloves previously mentioned as having been located in the east (master) bedroom, a thorough search was made of the house. No other fragments were found outside of the east (master) bedroom, In a storage cabinet under the kitchen sink area, hidden from view household cleaning equipment, eight pairs of "Perry" brand latex surgical gloves in sealed packages were found. No open packages were located during the crime scene search, nor were any other surgical gloves located in other areas inside the residence. A pair of similar latex gloves was located in a locked outside storage shed and these gloves bore no blood evidence but did contain paint stains. (The same type as that paint located on Kimberly MacDonald's bed). The plumbing of the residence was searched from the toilets in the main and utility room bathrooms and from the kitchen sink area to a point at the juncture of the main sewage line in the rear of the residence. These efforts did not produce any pieces of latex gloves. I have previously heard that the toilet in one of the bathrooms was found to be clogged by the investigators and this situation was corrected by the Army through the services of a plumber. A most unfortunate error!

At 4:58 A.M. on February 17, 1970, CPT. William P. Neal, Professional Officer of the Day, Womack Army Hospital, arrived at the scene and was escorted through the residence to examine the MacDonald females. Neal was cautioned not to disturb the bodies unless it was absolutely necessary. He entered Kristen MacDonald's bedroom and when he reached the body, rolled it over on its back and they inspected both chest and back and declared that Kristen was dead. He then replaced Kristen's body in nearly the same position as before and covered it with the bedclothes a little more than it had been covered. Dr. Neal examined Kimberly MacDonald and pronounced her dead without moving or disturbing her body in any manner. The evidence is a little unclear in regard to whether Dr. Neal or one of the other medical personnel moved the body of Colette MacDonald to examine her. I suspect she was moved slightly. MacDonald's defense at the Article 32 Hearing contended that since Mrs. MacDonald had been moved, there was a valid reason for MacDonald's pajama shirt fibers to appear under her body.

The upper portion of the body of Colette MacDonald was covered in part by the torn blue pajama top of Jeffrey MacDonald. CPT. MacDonald subsequently related that while being attacked in the living room, his assailants tore the pajama top and pulled it over his head and when he regained consciousness, he found the top wrapped around his wrists with the cuff portion of the sleeves still intact. A search of the living room area which Jeffrey MacDonald identified as the place where he struggled with his assailants, and where the shirt was supposedly torn, did not produce any threads or fibers from the shirt. MacDonald also stated that upon regaining consciousness in the living room area after the attack, he went directly to the body of his wife and, taking the torn pajama top from around his wrists, placed it over the chest of his wife after he removed the paring knife he found protruding from one of her chest wounds. When the body of Colette MacDonald was being moved to a stretcher, a dark object protruding from a blood stain on the rug where her head had rested was located. A closer inspection revealed the object to be a seam thread from the blue pajama top of Jeffrey MacDonald. A subsequent detailed search of the body outline area where Colette MacDonald had lain revealed a great number of additional threads. Additional threads and fibers were located in other areas of the east (master) bedroom and thus an examination was made of the struggle area in the living room identified by Jeffrey MacDonald. This particular examination was made utilizing a magnifying glass and no threads or fibers were located in the immediate area of the couch. One thread was located in the hallway about three feet from the living room area. A large amount (30-40) was found within the outline where the body of Colette MacDonald had lain. A large amount was also located scattered all over the rug in the east (master) bedroom. Several threads were located on the floor, behind the headboard of the bed in the master bedroom directly under the location where the word "Pig" had been printed on the headboard. In addition, as previously mentioned, a number of threads were located under the bedding in the south bedroom (that of Kimberly MacDonald) and one fiber from the pajama top was located under one of Kristen's fingernails during the autopsy. It can be opinioned that the pajama top was most probably torn in the east (master) bedroom; that Colette MacDonald subsequently sustained injuries and fell to the floor covering some of the threads and fibers.

The crime scene search failed to reveal any evidence of intruders to the residence. No evidence of a forced entry to the residence was located. Additionally, a large amount of patent medicines, hypodermic syringes, and assorted surgical equipment was stored in an open closet but was undisturbed during the incident. There also were a number of valuable possessions of the MacDonald residence which were not stolen or disturbed during the incident.

The following is a synopsis of the facts the case as related by CPT. MacDonald to F.B.I. Special Agent [redacted; Caverly] on February 17, 1970, while still a patient in Womack Army Hospital in Fort Bragg, and more specifically detailed in F.B.I. File No. CE 70-3668-87.

CPT. MacDonald advised he arrived at his residence at about 5:00 P.M. to 5:30 P.M., Monday, February 16, 1970, from work and after playing basketball with members of his office. He stated he ate supper and then his wife, Colette, left to attend class at North Carolina State University Extension, Fort Bragg, North Carolina.

He stated after his wife returned home from school, they watched television and shortly before the Johnny Carson Show (11:30 P.M.) came on television, his wife took some medication to help her sleep better as she was about three or four months pregnant. He stated he and his wife were lying on the floor watching television when his youngest daughter, Kristen, started crying. He went to her room at which time Kristen stated she did not want to sleep alone. In the meantime his wife had gone to bed and he, MacDonald, believes he went to the kitchen and got his daughter a bottle of chocolate milk and went back to her room. He stated he then took his daughter to the master bedroom where his wife was in bed and placed Kristen in the bed with his wife.

CPT. MacDonald estimated this was about 12:30 to 12:45 A.M., February 17, 1970, and after putting his daughter in bed with his wife, he returned to the living room and watched television again. He stated after the Johnny Carson Show was over at 1:00 A.M. he read about 50 pages of a novel and then did the dishes in the kitchen. He stated at approximately 2:00 A.M. to 2:30 A.M., he went to the master bedroom to go to bed and noticed that his daughter had wet his side of the bed. He stated he picked up his daughter and took her back to her room and went out to the living room where he prepared to sleep on a sofa. He stated he believed the time was approximately 2:30 A.M. when he finally laid down on the couch.

CPT. MacDonald stated he was awakened, time unknown, when he heard his wife screaming "JEFF, JEFF, HELP ME." "Jeff, why are they doing this to me?" He stated that about the same time he heard his older daughter, Kimberly, scream, "Daddy, Daddy, Daddy," over and over again. He stated he sat up on the couch on his elbows at which time he saw "people" standing at the foot of the couch; one Negro was on the far left walking toward him. He observed two white males at the foot of the couch and when one white male moved to the side, he saw a white female behind the two white males holding what appeared to be a lighted candle in her hands in front of her body.

He stated before he could say anything, the Negro was next to him with a club in both hands raised over his head. He stated he raised his hands and arms to defend himself and was hit on the arm and across the forehead. He recalls that just before he was hit on the forehead by the Negro, he heard the white female chanting in a monotone voice, "kill the pigs"; acid and rain are groovy, man." "Acid is groovy." He was then hit on the forehead and fell back onto the couch while the white female continued her monotone chanting.

MacDonald stated he began fighting with the Negro and one of the white males started hitting him in the side. He stated he grabbed the club in the Negro's hands in order to not be hit again and he pulled the club down toward him, at which time he observed the Negro was wearing an army fatigue jacket with Sergeant E/6 stripes. He stated the Negro's hands were wet and slippery and while he was fighting with the Negro, he continued getting hit in the side and shortly thereafter he felt a severe pain in his side and in his chest. He stated the Negro and white male continued fighting with him and he pushed them away from the couch toward the hallway with the Negro and white male tearing at his pajama top. He stated the pain in his cheat became quite severe and he fell to the floor in the hallway.

MacDonald stated he recalls that as he was falling to the floor in the hallway he saw the female with high brown or dark fake leather boots and saw her white knees showing about the boots. He noticed the knees and boots were wet but not bloody. He then passed out in the hallway. He also recalls while fighting with the Negro and white males in the hallway, the white male had what appeared to be a knife or ice pick in his hands. He stated he observed the "shiny blade" but cannot say what type instrument it was in his hands.

CPT. MacDonald stated he does not know how long he was unconscious but when he awoke he was on the floor in the hallway with his pajama top torn, bloody and twisted around his wrists.

He stated he got up from the floor and went into Kimberly's room and saw blood all over the bed. He felt her pulse and heartbeat and could not find either. He then went to Kristen's room and found no pulse or heartbeat.

MacDonald stated he used the telephone in the bedroom and called the Fayetteville telephone operator and said, "I need an ambulance and M.P.'s at 544 Castle Drive." He said the operator started asking him questions, such as Social Security number, reason for ambulance, etc., and he laid the telephone down and returned to his daughters' bedrooms and again was unable to find life in their bodies.

He stated he went to the kitchen and again called the operator and repeated his previous comments. He estimated that he talked for about five minutes when he heard a male voice on the telephone and heard other voices in the background. He stated the male voice said "make that ASAP." MacDonald stated he returned to his wife, and pulled a small knife from her chest and threw it to the side and attempted mouth to mouth resuscitation. He stated he could feel no life in his wife's body and he covered her with his pajama top and a towel. The next thing he remembers is being awakened by a Military Policeman as he was lying over his wife's body.

Captain MacDonald has expanded and changed slightly his statement in regard to the events of the night of February 16-17, 1970. In essence, his story is still the same but he has some discrepancies. As an example, during, his early interviews he did not tell anyone that he entered the kitchen after finding his family dead, other than to use the telephone at the kitchen doorway. Then, at the Article 32 Hearing, after the Government presented evidence that his blood type was found in the kitchen near the sink, MacDonald said that he probably entered the kitchen to wash his hands out of instinct. In addition, MacDonald did not say anything about having received 8 or 10 prick wounds in his abdomen until the Article 32 Hearing. This fact was not noted by any of his treating physicians.

D.  LAW OF THE CASE:

If a criminal indictment is sought in this matter, the proposed charge to be presented to the Grand Jury would consist of a three-count indictment charging Jeffrey R. MacDonald with premeditated murder of Colette S. MacDonald by means of striking her on the head with a club and stabbing her in the chest with a knife, in violation of Title 18, U.S.C., Section 1111. The second count would charge Jeffrey R. MacDonald with premeditated murder of Kimberly K. MacDonald by means of striking her on the head with a club and stabbing her in the chest and neck with a knife, in violation of Title 18, U.S.C., Section 1111. The third count would charge Jeffrey R. MacDonald with premeditated murder of Kristen J. MacDonald by means of stabbing her in the chest and back with a knife, in violation of Title 18, U.S.C., Section 1111.

Obviously, from the facts in the case, much of the case will center around circumstantial evidence. This area of the law will necessitate a detailed search and analysis prior to commencement of further actions. Generally, however, it is felt that circumstantial evidence is entitled to no less consideration than direct testimony, and whatever can or could be established by direct testimony may also be established by circumstantial evidence. Politano v. U. S. (CA 10 Colo.) 220 F.2d 217; Moffitt v. U. S. (CA 10 Oklahoma) 154 F.2d 402, cert denied, 328 U.S. 853, 90 L.Ed. 1625, 66 S.Ct. 1343. The general trend is to be liberal in the admission of circumstantial evidence if it will shed light on a crime which was committed in secret. Coffin v.U.S., 162 U.S. 664.

There are many other areas of legal theory which should be considered in making a determination as to the probability of "getting to the jury." Some of these are: (1) What quantum of evidence will defeat a motion for a directed verdict. (2) The charge to the jury. (3) Evidentiary weight to be accorded prior inconsistent statements. (4) Negative evidence.

This is intended only as a mention of the complex legal theories which must be researched and weighed prior to initiating a proposed indictment. Much consideration and thought has been given to this matter by attorneys of this office. We will, however, need additional assistance from the Department of Justice in order to more specifically evaluate and determine the likelihood of prevailing on the law pertinent to this case.

E.  STATEMENT OF PROOF IN RELATION TO THE ELEMENTS OF THE OFFENSE:

The Government must prove beyond a reasonable doubt that Jeffrey R. MacDonald - and not a group of hippies - was responsible for the murders of Colette, Kimberly, and Kristen MacDonald. MacDonald, on the other hand, must have the jury believe that: (1) Four to six hippies entered his quarters on Fort Bragg when they had numerous other quarters to choose. (2) Entrance to the residence was gained without force and without awakening the occupants of his quarters or the nearby quarters of neighbors. (3) The hippies obtained their weapons from the residence before waking MacDonald. (4) A violent struggle took place between MacDonald and four assailants in the living room of his quarters without disrupting this site to a measurable degree. (5) This struggle, which allegedly involved the use of the same weapons that were used on the other members of the family, did not result in any significant injuries to MacDonald. (6) The hippies then brutally killed the other members of his family but left him alive. (7) Colette, Kimberly, and Kristen were discovered by MacDonald, upon his regaining consciousness, in their respective rooms. (8) That his sworn testimony concerning his actions in the house before the M.P.'s arrived were for the purpose of trying to give medical aid and not an attempt to tamper with the evidence. (9) The absence of physical evidence where physical evidence would in all likelihood have existed if his story were in fact true.

If both the Government and the defense began with the same starting point (that on the night of 16-17 February 1970, Colette MacDonald and her children were killed at 544 Castle Drive, Fort Bragg, and that Jeffrey MacDonald is known to have been there at the time of the murders), then either the story of the hippies is true -- or Jeffrey MacDonald made it all up -- if he is lying about the hippies, it can only be for one reason; to hide his own guilt.

The Government can prove that the events as described by Jeffrey MacDonald did not and could not occur the way he relates. MacDonald's rendition of his assault, and his movements through the house, has evolved as his need to invent facts became more and more demanding. Since he was not always aware of the significance of a particular question, his answers as to what he did in a particular room at a particular time forced him to invent more and more acts and observations. At this time his sequence of movements have been crystallized by his sworn testimony and tape recorded interviews.

Based on physical evidence which was not known at the time of the Article 32 Hearing, and which will be the subject of another section in this memorandum, it can be proven that he is lying about his actions in the house before and after the murders. It can be theorized that a fight between Colette and Jeffrey MacDonald originated in the bedroom of the residence, that the fight accelerated from a punching situation to a bludgeoning and finally to a stabbing of Colette, and that Colette, while still alive and bleeding, fought with MacDonald.

It can be demonstrated that MacDonald, and only MacDonald, placed the children in their respective beds and Colette in the master bedroom after they were all killed. MacDonald can be shown to be lying about several physical steps he took in the house, and his hippie story, can be greatly damaged, if not entirely impeached, by a gradual introduction of new evidence coupled with prior testimony, thereby destroying his creditability.

It is firmly believed by those familiar with MacDonald's conduct during the Article 32 Investigation that he will take the stand. His psychological makeup is such that he must play a role in any trial. If he takes the stand, there are at least two items of physical evidence which can only be explained in one way. And that is, he fought with Colette, and that he moved the bodies from room to room. It is believed that used in cross examination, this evidence would negate any reasonable doubt in the minds of the jury. It could, of course, be more effective if introduced as part of the Government's case in principle.

This memorandum will now discuss the salient evidence on a room-by-room basis and contrast it with MacDonald's various previous statements.

1.  The Living Room Area:

According to Jeffrey MacDonald, he was sleeping on the living room couch because his daughter, Kristen, had wet his side of the master bed. He was awakened by the screams of his wife and daughter, Kimberly, and immediately saw four "hippies" standing at the foot of the couch. One was a Negro male holding a club, one a white female holding a candle, and chanting, "Acid is groovy - kill the pigs"; and two white males. He was attacked by the Negro, whom he grappled with and felt his wet-gloved hands - described as dishwashing gloves. Allegedly the pajama top was pulled over his head and down around his wrists after he had been stabbed by his assailants. MacDonald then lost consciousness and fell face down on the steps of the hallway leading to the master bedroom.

In refuting MacDonald's statements as to the above, it is believed that the Government can show:

a.  It was Kimberly - not Kristen - who wet the bed. Kimberly's blood in the master bedroom will also show that she was killed in that room.

b.  The coffee table, because of its center of gravity, cannot be knocked into the position in which it was found. The debris on the floor, consisting of a stack of ten magazines, and a second stack consisting of a box of children's cutouts and the Esquire magazine could not have fallen under the table. When tested, they invariably fall forward of the table. The magazine bears a finger impression in either Colette's or Kimberly's blood. The slippers do not rest on top of the front leg of the table unless placed there after the table has been set in position.

c.  The dining room, which is immediately adjacent to the couch area of the living room, and in which some of his attackers must have stood when struggling with MacDonald, is completely undisturbed.

(1)  The throw rug lying parallel to the living room rug and about six inches north of the larger rug was still perfectly parallel when the crime scene pictures were taken. If a struggle had actually taken place in this area, the rug would have slipped on the floor.

(2)  On top of the dining room table two candles in brass candlesticks were found, one candle tilted in its holder. It is inconceivable that these candles should remain upright if a struggle had taken place in the dining alcove.

(3)  The unstable china hutch, containing crystal glasses, was not disturbed.

(4)  The five dining room chairs were in their normal places.

(5)  Three valentine cards, which were standing on the sideboard in the dining room, were undisturbed.

This article contains a sequence in which a reporter is surrounded by a group of four hippies, one of whom is a Negro, one a blond who chants about acid. There is also a reference to a back door, a princess' bedroom, and a table covered with wax. It can be proven that MacDonald read this article two days before the murder and thought it was "wild."

(4)  The smearing of the word "Pig" in blood on the headboard in the master bedroom may have been used to buttress the hippie theory explained by MacDonald, by using the same modus operandi as in the Charlie Manson case. Manson's story is also contained in the same Esquire magazine.

i.  MacDonald was wearing his pajama top when he was attacked in the living room - logically the number of wounds he received, or the number that he alleges he received, should correspond to the holes in the pajama top. They do not. A total of 48 puncture holes were located in the pajama by the F.B.I. Laboratory. Lab experts contend that all of these holes were made while the garment was stationary. The back panel contains 17 holes, 12 of which were generally located in the left back area and 5 of which were located in the right lower shoulder area. MacDonald had no injuries to his back, and has never claimed to have had any. The right front panel area contained 9 holes, 6 of which were located in the upper right central chest area and 1 located in the right lower armpit. Twenty-one holes were located in the upper arm (near the shoulder) area of the right sleeve. A single puncture hole was located in the upper arm (near the shoulder) area of the left sleeve.

Two cuts, as opposed to puncture defects, were located in the pajama top, one in the upper left shoulder area of the back panel and the other in the lower right area of the front panel.

Jeffrey MacDonald had the following injuries:

(1)  A bump on the forehead.

(2)  A stab wound between the seventh and eighth ribs on the right side. (There is no cut in the right front panel of the pajama top to correspond to this wound.)

(3)  A 3 cm. superficial laceration of the left rectus muscle area of the abdomen. (The only cut in the front panel of the pajama top is on the lower right front panel.)

(4)  Four to five prick marks in the upper chest to the left of the mid line. (The ice pick holes in the pajama top are on the right side of the middle line and higher up on the V-neck.)

(5)  A superficial puncture wound of the upper left arm. (This is the only wound which corresponds to a defect in the pajama top and the only place on the entire pajama top where Jeffrey MacDonald's blood was found.)

Except for this puncture mark on the left sleeve, none of the wounds that he actually had left any blood on his pajama top.

There are no wounds in his back which correspond to either the 17 puncture holes in the back panel or the cut in this panel. There was not one ice pick mark on his right arm, although there are 21 ice pick holes in the right shoulder area of the pajama top. The F.B.I. Laboratory also reports that five holes had the general appearance of being "exit" holes. There should not be any exit holes if he were in fact wearing the pajama top when he states he was attacked. (For the holes to have the appearance of exit holes, then the ice pick must have passed through his body.)

In summation, the pajama top was not torn as described, the holes in it were made while it was stationary, the defects do not correspond to his wounds, his wounds did not leave corresponding blood stains except in one instance. The pajama pocket (which bears Colette's blood) was torn off in the master bedroom, not in the living room.

It can be conclusively shown that Colette's blood was on the left sleeve before the garment was ever torn. In addition, Jeffrey MacDonald was observed to have scratch marks on his chest area above the "V" neck (which was torn straight down the mid line). Colette's right ring finger when examined for fingernail scrapings, revealed the presence of human skin. However, this skin was apparently lost and it cannot be proven to be Jeffrey MacDonald's.

MacDonald also testified that he felt the Negro's gloved hands; that they were wet and slippery. Since the gloves were found on the kitchen sink drain board and did have specks of blood on them, is it to be inferred that the Negro placed them back in their normal position after the killings?

2.  Master bedroom:

According to MacDonald's April 6 statement, his first act, after regaining consciousness, was to walk down the hallway to the master bedroom. What he did with the pajama top is crucial to the creditability of his story. Perhaps MacDonald's motive was to account for the presence of Colette's blood on the pajama top which may have gotten there during a struggle with Colette. He likely, therefor, invented the idea of treating her for shock by covering her with the pajama top. On April 6 he stated: "I took it off as I was going in the bedroom. I took this knife out of my wife's chest, and you know, I was keeping her warm." Also, on April 6, he stated: "I'm sure I took it off. I'm sure I took this thing off the first time. I didn't make a circuit with this jacket on , I don't think. I came down the hallway and I went in, I took it off to get my hands free, basically, and sometime while I was in there the first time, you know, I put in on my wife."

What MacDonald did not likely know at this time was that the pajama pocket had also been found on the turned up bottom of a throw rug resting by Colette's left foot. Consequently, his story changes when he is asked how Colette's blood got on the pocket, and how could the pocket have traveled down the hallway from the living room. At the Article 32 Hearing he testified that he dropped the pajama top on the bedroom floor after shaking it out and then picked it up and placed it on Colette. However, three points in his story are fixed:

a.  The pajama top was torn in the living room.

b.  The first room he went to was the master bedroom.

c.  He took off the pajama top and placed it on Colette's chest.

MacDonald does not know that the laboratory report concludes that the blood on the left sleeve of the pajama top was on the garment before it was torn. It may then be reasonably concluded that a fight between MacDonald and Colette took place in the master bedroom, and it would seem to be inescapable because of the profusion of threads and fibers from the pajama top found in the master bedroom in positions indicating that they were scattered about before Colette's body came to rest on the bedroom floor.

In the master bedroom, threads and fibers identical in type, color, denier, twist, and all other physical characteristics to those of the pajama top were found in the following locations:

a.  With three splinters from the club, which were found near the body outline of Colette.

b.  On the bedspread in the east bedroom.

c.  From the mouth area of Colette.

d.  At the fracture site of the left forearm of Colette.

e.  Underside of the throw rug.

f.  In the sheet in bed.

g.  On the pillowcase located on the bed.

h.  Beneath the body of Colette.

i.  Under the trunk and leg of Colette's body.

j.  Near the left hand and arm.

k.  On the floor near the east wall and headboard of the bed; the headboard on which the word "Pig" was written in Colette's blood.

l.  On the rug near the north corner of the footboard of the bed.

The footboard of the master bed is broken, and the club which was allegedly used on Jeffrey MacDonald, and definitely used on Colette and Kimberly, fits under the footboard between it and a block of wood which supports the box springs at the north end of the bed. However, this block of wood is slightly larger than the club so that the full weight of the bed rests on the block of wood and not on the club. Therefore, it is possible to pull the club out from under the bed. Since fibers from his pajama top were found near this same north end of the footboard, there is at least an inference which may be drawn.

The club which bears Colette's and Kimberly's blood stains was found outside the utility room door, immediately to the right of the steps. In order to get to the utility room door, you must pass through the master bedroom.

MacDonald has admitted looking out the back door but emphatically denies going outside. The club was examined and found to contain fibers identical to those of Jeffrey MacDonald's pajama top. MacDonald was struck in the head, allegedly with the club while in the living room, but since no fibers were found in the living room, it is not credible that the fibers could have been picked up in the living room, retained during the beating of Colette and Kimberly, and were still on the club when the club was found outside. It is more believable that Jeffrey MacDonald, while still wearing his pajama top, carried the club, ice pick and paring knife to the back door, held the club under his arm while he opened the back door, and quickly tossed all three by the back steps.

The master bedroom's bottom sheet contains a urine stain. This urine stain indicates the specific factor A and a deterioration of the specific factor B; that is Type A blood or Type AB (either Colette's or Kimberly's, but definitely not Kristen's). MacDonald has repeatedly testified that Kristen urinated on the bed. Kimberly suffered a fractured nose, multiple blunt wounds to the right side of the head from the club, and eight to ten penetrating incisional wounds in the neck. The incisional wounds were made at right angles to the front of the neck. Kimberly's blood (Type AB) as well as Colette's (Type A) was found on the sheet on the floor of the master bedroom. It is also present in several spots on the hall floor and on the rug at the entrance to the bedroom. On the bottom side of the Hilton bath mat which was also covering Colette's abdomen, there are streaks of Kimberly's blood, indicating that some object covered with Kimberly's blood was wiped on it. MacDonald at first stated to the F.B.I. and C.I.D. agents who interviewed him in the hospital that he covered his wife with his pajama top and a towel. On April 6, he indicated that he may have gotten the towel from, the linen closet and placed it on Colette. By the time of the Article 32 Hearing, he stated, "I remember I was looking for something and I was pulling at the clothing that was piled in the chair across Colette, but I don't remember specifically picking up something and laying it across her.

Jeffrey MacDonald's blood is only present in three places in the residence:

a.  The kitchen floor.

b.  The hall bathroom.

c.  The linen closet's sliding door immediately adjacent to the hall bathroom.

On the top side of the Hilton bath mat are similar streaks, but in Colette's blood. Therefore, the blood on the bath mat did not result from being in contact with Kimberly or Colette (it was not covering any of her bleeding wounds which were all above the breast line) but rather from having the knife or knives wiped on it.

The top sheet and bedspread from the master bedroom were found on the floor of the master bedroom, south of the entrance from the hallway. The sheet, as shown in crime scene photos, almost entirely covers the balled up bedspread. Inside the bedspread fibers from MacDonald's pajama top were found. The sheet bears large blood stains of Type AB (Kimberly's) and Type A (Colette's). Jeffrey MacDonald's pajama top, in the lower left front area, has Kimberly's Type AB blood on it. It would be the prosecution's theory that the sheet and bedspread were used to transport Kimberly and Colette MacDonald. The bedclothes were used to transport Kimberly from the master bedroom to her own south bedroom. Medical testimony will show that Kimberly's injuries were so massive as to render her immediately comatose, if not dead, and, therefore, the presence of Kimberly's blood in Kristen's room, the dining room, the hallway, and the master bedroom can't be explained by her own movements. It can be shown that Kimberly was moved after receiving her injuries. The physical evidence in support of this premise is as follows:

a.  The tips of Kimberly's hair, on the right side of her head as she was found in her bed, are bloody. However, there is no injury corresponding to these stains which would bleed upon those strands of hair.

b.  The blood stains on the right side of her face have two directions; one corresponding to gravitational forces, the other flowing "uphill" from the direction of the wound.

c.  Kimberly's left wrist has a sharp line where the blood stain stops (indicating that this wrist was partially covered while direct bleeding fell on it). The child's wrist was not found in a position in her bed where it could have been subjected to direct bleeding.

d.  On the bottom sheet of Kimberly's bed, beneath the covers, was a thread from MacDonald's pajama top.

e.  On the north pillow is a splinter from the club.

f.  On the north walls are flecks of Colette's and Kimberly's blood. Kimberly was clutching a security blanket she slept with habitually, and was also entwined in a purple bedcover which contained fibers from MacDonald's pajama top. The purple bedcover was beneath a quilted bedspread.

MacDonald has testified that he took his pajama top off before entering Kimberly's room. If that statement is true, how does Kimberly's blood get on his pajama top, and how do the threads and fibers from the pajama top get under the bedclothes? MacDonald has testified that while he was being attacked by the Negro wielding the club, at the same time Kimberly was screaming, "Daddy, Daddy, Daddy." Can it be inferred from this that the club was possibly being used in at least two different rooms on three different people simultaneously?

The master bedroom also contained the fragments from a surgeon's latex glove. The glove had evidently been ripped while being removed because fragments were found:

a.  On Colette's body

b.  On the bed.

c.  On the dresser.

d.  On the rug near Colette's body.

The fragments were compared by neutron activation analysis, with the Perry brand surgeon's gloves found in the cabinet beneath the sink in the kitchen and found to contain the identical trace elements. In front of this cabinet on the kitchen floor are droplets of Jeffrey MacDonald's blood. There was also blood under the left portion of the kitchen sink; however, it was insufficient to type.

The use of the gloves by Jeffrey MacDonald is inferred because of:

a.  Their hidden location underneath the kitchen sink.

b.  The fact that despite the admitted presence of much blood on his hands, and his continued touching of objects, he left no bloody fingerprints anywhere in the house.

For instance, he has testified that after taking the knife from his wife's chest, and before washing his hands, he called the operator. Why then are neither blood nor fingerprints on the telephones?

The significance of the bent paring knife which was found in the master bedroom is curious when contrasted to MacDonald's statements. In the position that MacDonald was laying in relation to Colette's body, he could see the bent paring knife near the base of the bedroom dresser. As MacDonald was being removed from the ambulance at Womack Army Hospital, he stated to a medic named Kenneth Gillespie that he (MacDonald) had pulled the knife from his wife's chest. A few minutes later, MacDonald again stated, this time in the presence of Medic Michael Newman and Dr. Jacobson, "Tell the M.P.'s and C.I.D. that I pulled the knife from my wife's chest and threw it on the floor." The Geneva forged paring knife has a twelve degree bend in the blade, the temper of the steel has a considerable amount of "give" in it, and it is extremely doubtful that it inflicted any of the wounds on Colette MacDonald.

Colette MacDonald's hands were found to contain human hairs. After eliminating the other members of the family, Jeffrey MacDonald's hair samples were taken. The hairs were found not to be from the same origin on Jeffrey MacDonald; however, he could not be eliminated as a possible source as a result of these hair samples by Lab experts. The light brown hairs found in Colette's left hand were compared with hairs found on two additional brushes from the MacDonald residence and the hairs found in the brush located next to the body of Colette MacDonald. It was determined that the hairs found in all three brushes were similar in gross color pigmentation and structure to each other and with the light brown hairs found in the left hand of Colette MacDonald. Further, all of the hairs could have been from the same source of origin. Jeffrey MacDonald is, the only member of the household with light brown hair, and since the Negro assailant and the blond can be excluded, either it is MacDonald's hair in her hands, or one of the two white male hippies brushed his head with three separate hair brushes and also had his hair pulled out by Colette MacDonald. There is more hair evidence, however, which narrows the possibility still further. A hair from Colette's head was found on the pajama top worn by Jeffrey MacDonald. Since MacDonald was not sleeping in the same bed with Colette on the night of 16 through 17 February, he would likely have had to have been in physical contact with her on the night of the murder. Taken by itself, the hair evidence can be explained away - but it stretches still further the creditability of his story.

It would be the prosecution's aim to show that while Colette was believed to be unconscious by MacDonald, he was transporting Kimberly to her own room; and that while still holding Kimberly, on the bedding, MacDonald discovered that Colette had gone into Kristen's room. Colette was then struck while sitting on the side of Kristen's bed and her body was then dropped on the bedding which had transported Kimberly. Kristen was then stabbed while she lay in bed. The physical evidence in support of this theory is as follows:

a.  Colette is known to have bled directly onto Kristen's bed before Kristen was stabbed.

b.  Colette did not bleed on the floor in Kristen's room.

c.  Colette's blood is spattered on the wall behind Kristen's bed, consistent with a blow from the club.

d.  Kimberly's injuries would have precluded her from being ambulatory.

e.  Kimberly's blood is on Kristen's bedspread.

f.  Jeffrey MacDonald left two bloody footprints going out of Kristen's bedroom. One footprint is in Colette's or Kimberly's blood, the other footprint is in Colette's blood. If there was no blood on the floor of these two types, and the footprints are leading out - not in - how did he leave those footprints? He could only have gotten the blood on his feet by stepping on the bedding known to contain both those blood types, or the bodies contained in the bedding.

g.  Colette's clothing, as photographed in the master bedroom, shows that she has been picked up or dragged. The legs of her pajamas are both pushed up to a point just below the knees and her bare legs have blood smears on them, that are not the result of direct bleeding.

There is further evidence to show a movement of the children's bodies. Both girls were found in a macabre position which tends to show that they had been killed while sleeping. Kristen appears in a photo to still be sucking on her baby bottle. Kristen's blood indicates that she bled directly onto the floor in her bedroom and that she was at one time hanging over the side of her bed. Under Kristen's fingernails is a fiber from Jeffrey MacDonald's pajama top, which, he has testified, he was not wearing when he went into Kristen's room. In Kristen's bed under the covers, a hair from Colette's head was found.

In Kimberly's bed on the purple bedcover, which lay beneath the quilted comforter, is a hair from Kristen's head, another is on the pillow which also contains stains of Kristen's blood, and a mixture of Colette's and Kimberly's blood. Jeffrey MacDonald's hair is on the pillow in Kimberly's bed and under the covers is a pubic hair from his body.

3.  Bathroom - Kitchen:

Jeffrey MacDonald's blood, Type B, is present in only two rooms of the house; the hall bedroom and the kitchen. It can be shown that his injuries could be self-inflicted while standing in front of the bathroom mirror. It is somewhat strange that the only other place his blood dropped is the kitchen floor immediately in front of the cabinet where the rubber gloves were kept. It would appear that it would be difficult for him to explain the absence of his blood in any of the following places:

a.  The living room.

b.  The hall steps.

c.  The clothes on the hall steps.

d.  Colette's clothes and the entire master bedroom.

e.  Kimberly and her entire room.

f.  Kristen and her entire room.

g.  The pajama top, except for one spot on the left sleeve.

The video tape of MacDonald's interview on the Dick Cavett Show records his claim of having sustained twenty-two stab wounds. Either he is lying about the number of wounds, and this can also be shown by eyewitness testimony, or he doesn't bleed when he is stabbed. MacDonald emphatically stated that he went no further into the kitchen than the doorway by the phone. After the presence of his blood on the floor became known, he testified that he may have "compulsively" washed his hands at the kitchen sink, either before or after using the phone. It can be shown that a surgical scrub brush was used to clean his hands of blood. If his hands were free of blood, why didn't he leave any fingerprints on the phone in the kitchen, on which he spoke for five minutes.

It can be argued that since the blood on the Esquire magazine is either A or AB, and since the finger impressions contain no rigid lines - the rubber gloves were used to set up the living room. This can be corroborated by the fact that a piece of the rubber glove located next to Colette's body also contains blood of Type A or AB.

F.  UNDIVULGED OR UNOBSERVED EVIDENCE AT THE ARTICLE 32 INVESTIGATION:

In this section we will highlight those physical evidentiary items which were either not presented at the Article 32 Investigation or obscured by the sheer volume of physical exhibits.

Evidence was introduced at the Article 32 Investigation that the paint on the club matched paint on other pieces of wood found in the wood well under the quarters; however, now it can be positively established that the club was once a part of a piece of wood found in the south bedroom of MacDonald's quarters.

The defense is unaware that laboratory analysis of the urine stain found on the sheet in the master bedroom indicated the specific blood factor (Antigen) A with a deterioration of the specific factor (Antigen) B - Type A (Colette) or AB (Kimberly) - not Type O which is the blood type of Kristen and which contains neither the specific factors A or B. In other words, all of MacDonald's statements that Kristen wet the bed are false, including his sworn testimony.

The neutron activation analysis of the fragments of the rubber gloves conducted by the ATF Laboratory was not done until after the Article 32 Investigation. This analysis showed that the Perry brand surgeon's gloves found in the cabinet beneath the sink in the kitchen contained the identical trace elements of the fragments of rubber glove found in the master bedroom.

At the Article 32 Investigation, MacDonald claimed that the speck of Type O blood on the outer lens of his eyeglasses must have gotten there when he treated an automobile accident victim at Cape Fear Valley Hospital on the night of 15-16 February, 1970. However, MacDonald was seen professionally by (Dr.) F. W. Pierce, Optometrist, 1225 Fort Bragg Road, on 16 February 1970 - the afternoon before the murders. If there had been blood on the lens, the Optometrist would have noticed it, or since Optometrists routinely clean lens during an examination, it is highly unlikely that a speck of blood would have remained there after the office visit.

MacDonald's pajama top was introduced at the Article 32 Hearing; however, no effort was made to correlate the types and locations of the blood stains with the injuries allegedly inflicted on MacDonald. On July 2, 1971, the F.B.I. Laboratory report was received which indicated the locations of the 48 puncture holes in the pajama top. The absence of torn areas surrounding the holes in the pajama top indicates that the garment was stationary when the holes were made. The torn condition of the pajama top indicates that the force was exerted downward and to the right (facing the front of the garment) or the person wearing the garment spun to his right and away while the left portion of the "V" neck was securely held. This is consistent with Colette clutching and scratching at MacDonald while she was being bludgeoned, rather than an assailant pulling the pajama top over his head and around his wrists. MacDonald has consistently maintained that he dropped or threw the pajama top somewhere in the vicinity of Colette's body, and that he later covered her chest with the pajama top and this activity accounts for the presence of her blood on it. The F.B.I. Lab report states that "large bloodstains were located in the left shoulder and the left sleeve of Q-12 (pajama top) that were on Q-12 before the garment was torn." Of the 27 tests for blood on the pajama top, only two revealed blood of a type other than Colette's (A); a small stain, Type B, located near the left elbow and a stain, Type AB (Kimberly) on the lower front panel. Therefore, Colette's blood was on the left sleeve in a location consistent with the hypothesis that she tore the left front panel of the pajama, before the garment was torn. (Note - MacDonald had scratch marks on his chest in this area and the pathologist removed a piece of skin from under Colette's bloody fingernail. In addition, Kimberly's blood (AB) is on the front panel of the pajama top - however, MacDonald maintains that he took off the pajama top and left it in the master bedroom before he ever entered Kimberly's room.

The pajama pocket became an issue at the Article 32 Investigation as to its location (near Colette's foot) - but the fact that specks of Colette's blood on the pocket are inconsistent with the thorough soaking of the panel from which the pocket was torn, was never brought out.

The significance of the bloody footprints, as to the identity of the maker, location, and blood type, was overlooked by the Article Investigation. The footprints are located near the entrance to Kristen's bedroom, but are inside the door frame and are pointed to the exit. The left footprint was positively identified as being made in Type A blood by the Lab Report. The significance of the footprints is as follows:

1.  Jeffrey MacDonald is known to have been barefoot the night of 16-17 February 1970.

2.  There is no blood of Type A (Colette) or Type AB (Kimberly) inside Kristen's (Type O) bedroom where MacDonald could have picked up enough blood to cover both feet and track it out of the bedroom.

3.  There is no way he could have tracked the blood out, if he didn't track it in, unless he stepped directly on the bodies of Colette or Kimberly which were transported in the sheet from the master bedroom.

4.  Colette is known to have bled directly on Kristen's bed and to have left flecks of blood on the wall opposite Kristen; these flecks are consistent with a spattering of blood after being struck with the club.

5.  This would obviously lead to the speculation that the bloody sheet found in the master bedroom was in fact in Kristen's room and MacDonald stopped on it or the bodies of Colette and Kimberly and exited the room with the blood still on his feet.

G.  PROBABLE DEFENSE OR WEAK POINTS IN THE GOVERNMENT'S POSITION:

Perhaps the overriding problem in presenting or prosecuting this case is the inability on the part of the Government to establish a solid motive on the part of Jeffrey MacDonald for having committed these murders. Perhaps the single best explanation that the Government can present as to why these murders were in fact committed by MacDonald was that a family dispute began for some unknown purpose and continued until a blow was struck by someone. MacDonald may have been attacked by Colette, which led him to strike back at either Colette or Kimberly with an unnecessary amount of force but an amount of force that, as physically fit as he was and with his knowledge of boxing, may have resulted in a severe injury. As the battle continued, all rational reason was lost and it finally culminated in death of either Colette or Kimberly with the other at near death. At this point, in view of the psychological makeup of Jeffrey MacDonald and his sense of self-preservation and personal ego, he conceived that there was no out for him except to kill the remaining member of his family, specifically Kristen. From the location of blood stains, it is apparent that at some point both Colette and Kimberly were in Kristen's room either dead in the sheet or possibly Colette trying to protect her last living daughter. MacDonald, having recently read articles concerning bizarre killings, could thereby stage and set up and conceive the entire story that has been related to date.

The above is a hypothetical theory and the Government has no concrete facts with which to prove same.

Jeffrey MacDonald's defense is going to be that his character precludes him from committing a crime of this type. The defense will further suggest that the "hippie" story was not sufficiently investigated and that it is conceivable that the events actually occurred as MacDonald generally testified. MacDonald no doubt will try to show that the integrity of the crime scene was destroyed and that evidence was tampered with by the Military Police Investigators. There is evidence that one of the M.P.'s picked up the bedroom telephone by using his thumb and index finger, and was immediately told to put it down. MacDonald's own personal wallet was stolen by a medic and subsequently found near the hospital. MacDonald will claim that there are thirty unidentified latent fingerprints in the house. However, there are no prints on any piece of evidence which are unidentified. A Military Police Sergeant, upon entering the apartment, observed that the bureau drawers in the master bedroom were open. The photographs showed these drawers to be closed. The flower pot in the living room apparently was lying on its side when the M.P.'s arrived. An ambulance driver picked up the flower pot and set it on its base. This driver then sat on the couch, until ordered to move. At one time a dozen M.P.'s, C.I.D. and medical personnel were wandering through the apart-ment. It will be real easy for the defense to attack the Government for failure to preserve the crime scene.

MacDonald will also raise the issue of the wax found on the arm of the old chair in Kimberly's room, as indicating the presence of intruders. The wax was old, and dried, and similar to birthday candle wax and is not remarkable in view of the fact that the MacDonald residence contained seventeen candles.

MacDonald will try to show that he was deeply involved in the drug scene at Fort Bragg, and at the surrounding communities and that the hippies may have singled him out as an informer. The only argument to refute this is that if they came to kill MacDonald, then why didn't they kill him. Why did they kill his entire family and leave him alive? If they came looking for drugs, why didn't they take the hypodermic needles and various pills that were in the linen closets?

Evidence will be presented, no doubt, to show that MacDonald was a very loving father to his children. MacDonald will offer testimony that a jewelry box from the master bedroom was rifled and two heirloom rings are still missing. Defense will also try to substantiate that the bodies of Colette and Kimberly were moved by medical examiners at the crime scene.

There will, no doubt, be an effort to impeach all witnesses of the Army Criminal Investigation Division and to some degree the efforts of the prosecutors themselves as being over-zealous and eager to almost go to the extent of fabricating evidence in order to crucify Jeffrey R. MacDonald.

The defense will contend that with the exception of the piece of wood, the other three murder weapons have not been identified with the MacDonald house. Since the Article 32 Hearing, it has been learned from MacDonald's friend, Captain Ronald Harrison, that at Thanksgiving, 1969, he (Harrison) was in MacDonald's apartment and attempting to chip some ice, when MacDonald said, where's the ice pick," and then he left to look for the ice pick. MacDonald's father-in-law, Alfred Kassab, remembers the MacDonald family having an ice pick when they lived in Princeton, New Jersey.

One prosecution theory is that MacDonald placed his pajama shirt over his wife and stabbed her, but the defense will argue, as they did at the Article 32 Hearing, that there were no fibers from the shirt in Colette's wounds.

Another prosecution theory is that MacDonald's wounds were self-inflicted, but the defense has doctors who will say that MacDonald could not have known the medical consequences of an injury inflicted such as wounding his lung.

There is no evidence that MacDonald ever treated his wife and children with any form of physical violence.

In view of the psychiatric tests made on MacDonald and his previously known history for sanity, he doesn't appear to be a person who would become temporarily insane, kill his family, then regain his sanity. At present, there is no evidence of insanity in MacDonald's back-ground. The defense will argue that no one who has known MacDonald would ever say that he was the type that would burst out with a torrent of violence. The killing was inconsistent for someone with MacDonald's personality. At the Article 32 Hearing, MacDonald had several witnesses, including his father-in-law, Alfred Kassab, who testified that he simply wasn't the type that would commit such an act. Mr. Kassab has now switched sides and this fact may weaken MacDonald's defense.

The defense has already argued that the unidentified fingerprint on the kitchen cabinet, on the counter near the door where the utensils were kept, could have belonged to one of the assailants.

At the Article 32 Hearing the defense argued that one of the murder weapons (a knife) was abused and showed on its surface that it had been scraped against concrete or a sidewalk and was not the conventional kitchen knife.

There are discrepancies between MacDonald's story on April 6, 1970, when compared with his testimony at the Article 32 Hearing, but the defense argued that this was normal since on April 6th his reconstruction of the events was spontaneous and by the time of the Article 32 Hearing he had thought out the events and was better able to recall what had happened.

One of the Government's prosecution theories is that since MacDonald was alive and his family dead, he must have done the killings. This idea is easy for the defense to attack.

The fact that Kimberly's blood was found on the Esquire magazine in the living room serves to refute MacDonald's story of the events that occurred in the apartment. Yet, on the other hand, it is easy for the defense to say that her blood ended up on the magazine as a result of contamination from the weapons carried by the intruders into the living room.

A strong point in the Government's case would be the evidence regarding the location of numerous fibers from MacDonald's pajama shirt under Colette's body. But the defense will argue that as Colette's body was being moved, the fibers dropped under her body from the torn shirt.

Some of the Government's evidence has been discarded. MacDonald's pajama pants were disposed of by the Womack Army Hospital personnel. Human skin was found under Colette's fingernails, but this evidence has been lost.

A flowered jewelry box located on Colette's dresser in the east bedroom had reddish brown stains inside and one latent fingerprint and one latent palm print, both unidentified. MacDonald claims that two rings are missing from this box and that his assailants took them.

Apparently, the hairs found in Colette's right hand have not been identified. This evidence would aid the defense.

There is some question regarding how conclusive the C.I.D. lab report is in regard to the origin of the blue fibers and threads. At one time a Government witness said the fibers and threads "could have" come from the pajama top.

The Article 32 Hearing Officer felt that the lack of fingerprints on the kitchen telephone could be explained because MacDonald may have washed his hands immediately before using this telephone. I am not sure how plausible this theory is, since I am not an expert.

The Article 32 Hearing Officer believed MacDonald's story. He was impressed by the numerous unidentified fingerprints on the premises; wax from an unknown candle apparently not from the MacDonald household; the unidentified blond hair in the right hand of Colette; red-brown stains on the interior of the jewelry box in the east bedroom, together with an unidentified finger and palm print, and no evidence that the two knives and the ice pick, apparently used in the murders, came from the apartment. These facts may also impress a jury.

H.  CONCLUSION AND RECOMMENDATIONS:

I am convinced that Jeffrey MacDonald brutally murdered his wife and two children during the late evening and early morning hours of February 16-17, 1970. But I am afraid that we will not be able to convict him. In my opinion we can get to the jury with this case but there is no more than a 20 to 30 percent chance of actually obtaining a conviction. The Government lacks a solid motive on the part of MacDonald for the commission of these acts. The Government, therefore, must present a totally hypothetical motive and then substantiate this motive with an enormous amount of circumstantial evidence of a negative character in an effort to prove a positive premise.

MacDonald's (All American Boy) image that impressed the Article 32 Hearing Officer can be challenged better by the Government at this time than was done at the previous hearing. We now have additional evidence in regard to MacDonald's extramarital activities that would be helpful. In particular, the evidence relating to MacDonald's childhood sweetheart, Carol Larson, who was seen kissing him at a Long Island railroad station a few months before the murders, could add a lot to this case. The Army C.I.D. have been reluctant to interview and investigate this girl to date. This really should be done.

My First Assistant, Weldon Hollowell, evaluates this case on the basis of a 50-50 chance of getting to the jury and does not care to speculate on what a jury would do after hearing all the evidence. I am sure that all these persons who thoroughly review this case will not agree on its chance for success. I place a 20-30 percent chance for conviction, but yet, if we were to get a reasonably intelligent jury, they may be convinced by all the scientific evidence, lab studies, etc., that the Government now has, which were not presented at the Article 32 Hearing. There is no doubt that the additional lab studies, such as the F.B.I. report showing MacDonald's pajama shirt had some of his wife's blood on it before it was torn, would help our case. The Government could present a more scientific approach to showing that MacDonald committed these crimes than was done at the Article 32 Hearing. This may be enough to convince a jury, but yet, this evidence may be more than that which they can comprehend.

This case is now over three years old. This fact alone will hurt us. I am not sure if all of our witnesses are still available.

It seems a real tragedy for the Government not to bring MacDonald to trial. He has committed these murders and should really have a jury of his peers determine his guilt or innocence. Yet, this case was given so much publicity that if we bring him to trial 3-1/2 years after the murder, we are going to be charged by many with persecution. I cannot help but feel that if this case was tried, it probably would end with a hung jury. Our case does have enough strength now that we will convince some persons of his guilt, but I am not sure if we can convince all twelve.

This case can certainly be better organized and presented in a more effective manner than was done at the Article 32 Hearing. I do not intend to criticize the Government prosecutors at that hearing, as they were faced with an unusual situation in view of the amount of proof (beyond a reasonable doubt) required by the hearing officer.

The Government investigators' failure to preserve the crime scene may be the most damning aspect of our case. The living room area of the MacDonald apartment appears to be clearly staged, but we lose the effect of this evidence when the defendant points to 4 or 5 admitted instances of the Government agents disturbing the crime scene upon their entry.

I sincerely hope that when the Justice Department evaluates this case, it will be given a better chance for success. I would like to see this murderer brought to trial, but I am still afraid we will lose. I think the chances for success might be higher if we could put together a team of expert criminal trial attorneys from my office and the Justice Department. I only have two experienced trial attorneys on my staff and if the Department decides this case should be tried, it would be vital that we receive help. In fact, it would be best for the Department to assign an experienced attorney to be in charge of this prosecution. This case will require at least a month to try and several months of intensive pretrial preparation. Most of my staff, at present, are inexperienced attorneys and I could not afford to let our regular case work fall by the wayside while we prosecute MacDonald. The only assistant available in my office that could be in charge of a case such as this would be my First Assistant, Weldon Hollowell. His services are too vital in regard to training our new assistants. He could participate in a case such as the MacDonald case, but I would rather that he not be in charge. In short, if the Department decides to bring this case to trial, we would be willing to prosecute; how-ever, without the assistance of an experienced Department trial attorney, we would have to decline to prosecute this case.

It might seem unusual to devote so much time to what I classify as a losing proposition, but when one undertakes an extensive review of this case, as I have done over the past several months, and becomes convinced that a murderer will escape punishment, it is hard to stop working. I hope I have given you a fairly thorough review of my evaluation of this case. This memorandum only begins to review the evidence. I will be glad to make myself available for any further discussions concerning this case.