Back in December, the Fourth Circuit ruled on a habeas petition of Dr. Jeffrey MacDonald, denying relief. The case has been winding its way through federal courts for more than 40 years. I wanted to flag it for readers in this post, both as one of the more notorious North Carolina murder cases and as an opportunity to examine the legal principles of actual innocence claims in federal habeas. Fair warning, this post contains some minimal (but grisly) details of the killings.
Background. In 1970, Jeffrey MacDonald, a captain in the U.S. Army Medical Corps, called the police to report that he and his family had been attacked by a group of strangers in his home. Responding officers found his pregnant wife and two daughters (aged 2 and 5) brutally murdered. MacDonald was originally charged with murder by the Army in May, 1970. In October of the same year, the Army charges were dismissed, but the Army investigators sent their work to the Department of Justice. MacDonald was honorably discharged from the Army but was indicted for the murders in federal district court in 1975. He was eventually convicted at trial in 1979 and is serving life. The case has drawn attention over the years for the brutal nature of the murder and MacDonald’s claim of actual innocence, as well as for MacDonald’s account of the real culprit—according to MacDonald, his family was murdered by a group of mysterious intruders including three men and one blond-haired woman in a “floppy” hat. That account echoed details of the infamous Charles Manson murders, which occurred around 6 months before the MacDonald family was killed. (For example, MacDonald told investigators that the woman carried a burning candle and chanted “Acid is groovy, kill the pigs”, and the word “pig” was written in blood of one of the victims on the headboard of the master bed). A copy of Esquire magazine was found in the apartment that featured the Manson killings on its cover, a fact that did not escape the prosecution’s notice. Extensive forensic evidence was hotly contested at trial, and the debate over the interpretation of that evidence has continued all the way through the post-conviction proceedings.
The blond lady in the floppy hat. MacDonald’s defense at trial focused in part on Helena Stoeckley as a possible culprit. She was blond, a well-known drug user living in Fayetteville at the time, and commonly wore a floppy hat similar to that described by MacDonald. Authorities considered her a suspect at the time of the killing. The defense called her to testify at trial, where she denied being present for the murders. Before trial and for years after (until her death) though, Stoeckley made statements to friends and family indicating she was present when the killings occurred and that she knew the real killers. Her testimony and that of corroborating witnesses was limited at trial, with the trial judge finding parts of her testimony flatly incredible—her statements often conflicted and were contradicted by physical evidence, she was an admitted long-term user of hard drugs (including on the day of the murders as Stoeckley admitted to using heroin and opium several times that day, along with hefty doses of marijuana and a dose of mescaline), and much of the information she purported to have was readily available in public media reports on the case at the time.
Post-conviction proceedings. Since 1984, MacDonald has pursued habeas relief without success. But in 1997, the Fourth Circuit granted his request to have certain items of physical evidence tested for DNA, a procedure previously unavailable. He ultimately alleged two claims in the current district court habeas case: one for prosecutorial misconduct, and one of actual innocence. The prosecutorial misconduct claim focused on an affidavit from a U.S. Marshall who interacted with Stoeckley during the trial and alleged the prosecution improperly withheld exculpatory evidence about Stoeckley, failed to correct her false testimony at trial, and improperly threatened to charge her, causing her to change her testimony. The innocence claim pointed to various items now tested for DNA that failed to match to MacDonald. MacDonald argued this, along with other new evidence, supported his story at trial, and thus his claim of innocence.
The two claims were related, but I wanted to focus on the actual innocence claim. North Carolina has a statutory procedure for innocence claims in state cases. See G.S. 15A-1460-1475. Is there such a thing as an actual innocence claim in federal court? If so, what did MacDonald need to show to obtain relief? To put that question into context, we have to look briefly at some basics of habeas procedure (only briefly, I promise).
Federal Habeas, Procedural Default, and New Evidence. 28 U.S.C. § 2255 governs habeas procedure for federal prisoners; comparable provisions for state prisoners are found in 28 U.S.C. § 2254. As mentioned, this was not MacDonald’s first habeas petition. A person typically only gets one bite at the habeas apple. Claims not raised in an original petition are procedurally barred unless certain narrow conditions are met: a new claim not previously raised must either deal with a new, retroactive rule of constitutional law announced by the U.S. Supreme Court, or there must be new facts supporting the claim that were not previously available through the exercise of due diligence. Where the petitioner files a successive petition under the second prong based on new evidence, the district court has to determine “whether that new evidence, ‘if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the movant guilty of the offense.’” 28 U.S.C. § 2255(h)(1) (emphasis added). It is a “rare and extraordinary case” that will meet the new evidence standard to overcome this procedural default. U.S. v. MacDonald, 641 F.3d at 614-15 (4th Cir. 2011). If the court finds that standard met, the successive petition gets reviewed on the merits; if not, the claims are barred. MacDonald was hoping his new evidence met that standard to obtain merits review of his allegations, and that was the posture of the current matter—the court was deciding if his petition, if true, was sufficient to get past the procedural bar.
No constitutional right to a freestanding claim of innocence? Back to actual innocence, the U.S. Supreme Court has never recognized actual innocence as a valid substantive constitutional claim on its own. Put another way, “[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation.” Herrera v. Collins, 506 U.S 390, 400 (1993). But not so fast: in Herrera, the Court also assumed without deciding that “in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” Id. at 417. There, the defendant claimed that his execution would violate the 8th Amendment barring cruel and unusual punishment. The Supreme Court denied relief in Herrera and has never ruled that any defendant has met this “extraordinarily high” standard. Id. (O’Conner, J., concurring). Several justices have expressed skepticism of “freestanding” claims of innocence. In the words of the late Justice Scalia: “[W]e have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on actual innocence is constitutionally cognizable.” In re: Davis, 557 U.S. 952 (2009) (Scalia, J., dissenting). In short, while the door on a freestanding constitutional claim of actual innocence hasn’t been closed, it also hasn’t been recognized by the U.S. Supreme Court.
Innocence Plus. Just two years after Herrera, in Schulp v. Delo, 513 U.S. 298 (1995), the Court considered a claim of actual innocence brought in the context of other constitutional errors in a successive petition. The defendant in Schlup asserted new Brady discovery violations and Strickland ineffective assistance claims, which (if proven) would undermine confidence in the trial, along with a claim of actual innocence. The court distinguished this situation from that of Herrera, treating the innocence claim as procedural. In the Court’s words:
Schlup’s claim of innocence is thus ‘not itself a constitutional claim, but instead a gateway through which a habeas petition must pass to have his otherwise barred constitutional claim considered on the merits.’ Id. at 315.
The holding in Schulp was later effectively codified in 28 U.S.C. § 2255(h)’s new evidence exception. So, it appears that a claim of actual innocence can proceed in federal habeas so long as it’s accompanied by a related constitutional claim. The standard in § 2255 operates as a “gateway” to merits review of the constitutional claims. Assuming a petitioner makes it through that gateway, it’s unclear how the innocence claim would then be treated on the merits, but the Fourth Circuit in MacDonald operated on the assumption that such review was possible in the right case. If so, the claim would be judged under a standard “at least as high as that required by § 2255(h)(1).” U.S. v. MacDonald, 911 F.3d 723, 798 (4th Cir. 2018).
The MacDonald decision. The Fourth Circuit held that the evidence MacDonald presented was insufficient to meet the new evidence standard justifying his successive habeas petition. Further, the court found that the claims failed on the merits even if MacDonald could overcome the procedural bar. Without wanting to minimize the complexity of the facts at issue, I just don’t have the space here to recount all of the specifics of the court’s reasoning—the unanimous decision was 154 pages—but you can read it here if you’re interested. At the end of the day, the court found MacDonald’s explanations had shifted over time to conform to new evidence, he failed to rebut the government’s evidence of his involvement, and his new evidence wasn’t reliable. He therefore could not meet the rigorous standards for review, much less relief on the merits. In the words of the court:
Simply put, we cannot say that the newly discovered evidence underlying MacDonald’s . . . 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. Id. at 796.
The End of the Road? MacDonald has a pending petition for rehearing en banc in the Fourth Circuit. If that is denied, his next step will be to seek U.S. Supreme Court review of the Fourth Circuit’s decision. What are his chances? On one hand, the odds of getting a petition for certiorari granted in the U.S. Supreme Court are low—around 2.8% in 2010 (although that number rises a little if pro se petitions are excluded). Keep in mind, that’s just for review to be granted; the percentage of cases where relief is granted is even lower. Further, given the fact-intensive nature of this proceeding, it might not be an ideal case for the Supreme Court (see the 154 page opinion). On the other hand, it wouldn’t be the first, or second, time that the U.S. Supreme Court weighed in on the case of Jeffrey MacDonald—in U.S. v. MacDonald, 435 U.S. 850 (1978), the Court ruled against MacDonald on the issue of whether his speedy trial motion could be appealed pretrial; in U.S. v. MacDonald, 456 U.S. 1 (1982), the Court ruled against him on the merits of that same speedy trial motion. Given the history and posture of this case, I would be surprised if MacDonald didn’t attempt further review all the way up.
Update: Coincidentally, the petition for rehearing en banc was denied today.