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The Dr. Jeffrey MacDonald Habeas Case and Actual Innocence

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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.

11 comments on “The Dr. Jeffrey MacDonald Habeas Case and Actual Innocence

  1. Helena Stoeckley was not a blond. She was a brunette that occasionally wore a blond wig. However, she consistently stated she did not wear her wig that night (one of the few consistent statements she made) because her boyfriend didn’t like the way she looked in that wig. Despite the defense attempting to make her the phantom woman in the floppy hat there is another detail that makes it impossible – her wig was a “bob” and therefore could in no way be considered “long and stringy” which was the description inmate gave.

    • Also another accused (Gregory Mitchell my uncle) wasnt at ft bragg that night. And didnt do acid. Only heroin.

    • however,there were blond wig hairs found that matched nothing in the apartment.The murder weapon was found outside in the snow and the foot prints did not match any known shoes worn by macdonald….Jeffery macdonald gave a very good description of stoeckley from the start.I still believe he is guilty!!!He killed 4 innocen tpeople that night that trusted him and that is why I believe he should have been put to death years ago

  2. Once the burden shifted to MacDonald, he basically had to prove the existence of specific hippie home invaders. Despite being given opportunities (e.g., several evidentiary hearings) that other convicted murderers could only dream of, MacDonald failed to come up with the goods. He was unable to present a single evidentiary item that was definitively sourced to a known (e.g., Stoeckley, Mitchell) intruder suspect. No DNA, no fibers, no hairs, no fingerprints, nothing, nada, zip. Jeffrey MacDonald is not only guilty beyond a reasonable doubt, he is guiltybeyond all doubt.

  3. This man is a trained fighter. Surely he would have been able to make someone bleed. Cause some damage to at least one of them to cause evidence of their presence.

  4. There may be good reasons to believe that the floppy-hat hippy was there the night of the murder (and possibly her three friends. They may have known the Dr. and his wife.) Also, there may have been a motived to keep her from being placed at the crime scene by the investigators. Yet, this does not mean any of these hippies were involved in any murders (which may have been committed by Dr. McD AFTER THE HIPPIES left). If you watch the movie, unless the blood-typing analysis of the crime was messed up, Dr. McD was definitely involved in the murders.

  5. I grew up about 10 minutes away from these horrific murders and still live very close by, to this day. The evidence points directly to the evil doctor and it also points to his attempt to cover it up. I have read and listened to testimony and his pathetic attempt to point the finger of blame onto innocent people. The “hippie druggies” he and his lawyers have always maintained committed these acts, would have had to have left some type of evidence behind, if his story had been true. One poor man who was accused, was in jail or prison at that time and proved his whereabouts. The young woman at the center of his accusations, was a drug addicted individual who seemed to want attention and years later she was cleared through DNA testing, of any involvement, he had accused her and her friends of that tragic night. In fact, more DNA testing was done and the ONLY persons evidence left behind, was that of MacDonald. Some bloody, broken hair in his wife’s hand, was his and his alone. I also think some details of his story are true. I do believe his wife did yell out to him and his daughter as well. I think his wife yelled out “Jeff, why are you doing this” . He claims she yelled out ‘Jeff, why are they doing this”…The same with his daughter, only he changed the wording to suit his story line. The Devil is always in the details, sometimes you just have to pick through it and see it for what it really is.

  6. I have been following this story since the beginning and I also saw Jeff on Cavett’s show. I knew then he did it. That was not a suffering man, he was too busy making jokes and laughing. It was a small apartment and four people were fighting to the death? Plus the wife and two little kids were butchered and he walked to their funerals, unaided, a few days later. I don’t care he is still saying he didn’t do it. He did it.

  7. I have followed this case since the seventies, and wrote to MacDonald in 1984. I also wrote to author Joe McGinnis in 1984 and received a very kind handwritten note back. Years later, I even made an attempt to go back and re-examine all the evidence from a different angle to see if I may have missed something, or if I could have been wrong, or if I might have been formulating a theory and looking for evidence to support it. I still arrived at my conclusion that Dr. MacDonald is guilty. I also am of the both personal, and clinical, opinion that Dr. MacDonald may fit the criteria of antisocial personality disorder at most, and narcissistic personality disorder at least. Dr. MacDonald has been afforded perhaps more opportunities to refute clear evidence more times than any other defendant in U.S. history. And yet, in nearly a half-century, he and his legal team still cannot seem to accomplish it and make it stick in a court of law. Were there mistakes made? Certainly; few cases are without human error. But I don’t believe that any mistake made circumvents his guilt. I have never believed the outlandish theory of the “hippie” intruders. The children had candles, and therefore candle wax. The children had dolls with long, blonde hair.

    The MacDonald family lived in a cramped military base apartment. It would be virtually not humanly possible for that setting to withstand the alleged physical battle to the death between a loving and protective husband and father against no less than four crazed, adult, violent and murderous (and armed) assailants without damage to the surroundings. And yet, absolutely miraculously, there was not one shred, one scintilla, of damage. Father-in-law Freddy Kassab himself, in an attempt to examine the setting, observed that a paper greeting card propped up on its edge was still standing after this supposed battle to the death that was alleged to have taken place. In fact, a dislodged potted plant was set upright, most likely by a police officer, demonstrating more impact on the setting than the so-called “battle” itself. The relatively thin cushion on the sofa was not dislodged, the pillow was not even knocked off the sofa after Dr. MacDonald alleged he was attacked in his sleep on the sofa.

    Collette was approximately 5 months pregnant 2-17-70 when murdered. The most common cause of death to pregnant women? Homicide. My hypothesis was that, like several other convictions across the U.S., Dr. MacDonald was a highly stressed military physician who was facing the prospect of yet a third child consuming his time and resources. He had already had at least one extramarital affair, and he married Collette when Colette was pregnant to begin with. This no doubt was a busy, stressed, perhaps unhappy marriage and household, stretched to the economic and marital limit already.

    The children were gently tucked in to their beds and covered up after being murdered. This, in my view, suggests their killer cared for them and knew them intimately. The numerous slashes in the thin pajama top, when the fabric was re-folded, did align perfectly, it seems. However, this perhaps could be contention and not fact?

    The hair in Colette’s hand, was Jeffrey’s (if I understand the information correctly). This is damning evidence. Every weapon used on the family could and most likely did come from inside the home. In spite of being a trained, highly physically fit specimen, Dr. MacDonald’s injuries were relatively superficial, in comparison to the overkill-level of mortal injuries to his wife and two small children. In each, they suffered wounds that were overkill, which may suggest rage and an intimate relationship. None of Dr. MacDonald’s injuries were permanent or debilitating enough to render him helpless to defend his family, and yet he inexplicably could not or would not defend their lives.

    The family’s bloody footprints were in several rooms of the apartment. They possibly ran for their lives. Which, in my view, suggests an utterly chaotic and out-of-control situation. And yet, with no less than four assailants, Dr. MacDonald, the loving and strong, fit, protective and military-stanced father, could not protect, disarm, or disable even one of them? Improbable.

    Dr. MacDonald lied to Freddy Kassab when he had no reason to do so. He succeeded and bloomed in every aspect, after starting a new life. He moved to the other side of the country, landed a glamorous and respected position as an emergency medicine physician, lived the bachelor’s dream in a waterfront condo with a glamorous boat, and dated a bevy of beautiful, sexy women. In a half-century, not once has Dr. MacDonald really spoken of his love and grief for his dead wife and his dead 2 children and 1 unborn child, nor spoken wistfully or painfully or in any other manner about wondering who could have done this to his wife and children. He simply never seemed to miss them. He rebounded, quite beautifully, in fact. This speaks as much to me as physical evidence does. Today, over fifty years later, he still doesn’t seem to miss them. When granting interviews, he speaks only of himself. I don’t believe I have found one account over fifty years where just one time Dr MacDonald spoke or wrote about what his children may have suffered before they died. Any other parent does this; they grieve themselves over “What did my child suffer? Did my child suffer?” He has never asked this seminal question. Has Dr. MacDonald once spoken of, “Today would be my daughter’s birthday…she would be X years old today…..”. Or, “Colette and I would have been married X years today….”.

    He doesn’t miss them. Their lives singularly or collectively, were, and remain, simply not enough to outweigh his.

    There is a saying, “When someone acts like they don’t care, believe them.” This is the pivotal thing I keep coming back to, over all these decades. Dr. MacDonald has never acted like he cared. And so I believe him.

    Dr. MacDonald, for fifty years, has stuck with one utterly embarrassing, pathetic, and quite dog-eared story of “four hippie intruders”. Just vague enough to be unable to categorically prove while being just tangential and fascinating enough to not be able to entirely dislodge or refute completely. Even at one point, the late Helena Stoeckley was offered enticements, such as money, from his original legal team and she still refused it. Virtually nothing this sad and pathetic, drugged-out woman could portend couldn’t have come out of a magazine or newspaper. Many people have bizarrely confessed to crimes they were later proven to have not committed.

    I believe Dr. MacDonald is guilty of the murders of his wife Collette, and his daughters Kimberly and Kristen and of his unborn son February, 1970. And I believe he will ultimately die in prison a forlorn, shell of a man. I pity the current Mrs. MacDonald; she fell in love with a handsome, witty, intelligent, coolly efficient and pristine man who she never has to ultimately physically fear when he will most likely never be alone with her in an uncontrolled environment.

    • I was a Special Forces doctor at Ft. Bragg when Jeff was there. Had been to his house several times on social visits. I had worked with him and was with him when his wife’s pregnancy test came back and he commented on it to me. I visited several times while he was in the hospital and when they started to investigate him. I also knew him back in Calif. when I returned from Viet Nam and went back to work in the ER at LA County General Hospital. He was there several times as a visiting staff and talked about what was happening but he was let go at LA not very long after. He was working at an ER in Long Beach at the time. He told me he had left the Ft Bragg area his father-in-law was upset by this as he wanted him to continue looking for the killers. He finally told him he had found one of the killers and had killed him so he could move to So Cal to start his ER. He admitted that was a lie but never told me the real reason that his father-in-law turned on him. I only found out about that was from the book. One of his best friends told me that right from the beginning he felt that Jeff had done it. Needless to say that friendship was over.I have also had some talks with a respiratory tech who worked with Jeff at St. Marys Hospital. He told me of Jeff losing his temper at him because the tech was using a singsong to count the chest compressions while Jeff was doing the CPR and was very afraid Jeff was going stop CPR to come over the table and attack him. And some other very interesting stories. I have to agree that I don’t remember him ever expressing any grief or even talking about his wife and kids. Mostly how he was mistreated by the investigation and even complained how they stopped him to cut off a hair sample and how they screwed up the whole investigation. He had a chest tube while in the hospital because of the stab wound. A small stab wound to the right chest wall that is just above the rib so it misses the artery will cause partial or full collapse of the lung but is not that serious and easily treated. The left chest wall is much more serious as it markedly impair the output of the heart as is is pushed over. If you wanted to self inflict a wound that sounds bad and will support your story of being attacked andyou know you will get treated within a day or two then its not a bad way to go.

      • You mention you knew back at Ft. Bragg before the murders. Your opinion of his demeanor back then would be so much appreciated. For all of these years I have believed him to be innocent. There is some evidence that was set aside by the judge that supported his version including wax drippings found and a bloody hypodermic needle found that was not tested for DNA. Yet, i could not get past the brutality of it and why a father would brutally murder his children in the manner he did. Could you share more of those days you knew him prior to the murders?