Fatal Vision (49 page)

The desk was that of Victor Woerheide, a sixty-two-year-old Justice Department attorney whose career had encompassed prosecutions ranging from that of Axis Sally during World War II to the recent indictment and conviction of former Illinois Governor Otto Kerner on bribery and conspiracy charges.

Woerheide functioned primarily as a troubleshooter within the Justice Department, taking on cases of unusual complexity or significance, generally after other department attorneys had failed to make sufficient headway.

Within the department hierarchy, he was responsible directly to the Attorney General himself, rather than to the chief of any section. In the MacDonald case, the authority vested in him by Henry Petersen was absolute. If, in Woerheide's opinion, the case was worthy of prosecution, it would be prosecuted. If, on the other hand, he did not feel it was of sufficient merit, then, as one department attorney later put it, "Freddy Kassab could have set himself on fire in the department courtyard and Henry Petersen wouldn't have stood up to look out the window."

For Freddy and Mildred Kassab, then, Victor Woerheide was a one-man court of last resort.

On a fine, sunny morning in early June, a mail cart laden with satchels, each of which was stuffed with thousands of pieces of paper—transcripts, witness statements, lab reports, photographs, diagrams, memorandums—was wheeled into Victor Woerheide's office.

He was a large man, six feet two inches tall and weighing more than 200 pounds. "And looking," an associate said, "as if he'd been that height and weight since he was about seven years old." He smoked cigars, he had silver gray hair which fell continually down over his forehead, and he had a very red face which seemed locked into a perpetual scowl.

Woerheide, in fact, suffered from a painful angina condition and until the MacDonald case had been presented to him—or, more precisely, thrust upon him—he had been giving serious consideration, in the wake of his triumph in the Kerner prosecution, to retiring from the Justice Department in order to divide his remaining years between his horse farm in Virginia and his villa on the Costa del Sol.

Approximately two weeks after Woerheide had begun his review of the case, he received a phone call from a twenty-seven-year-old military attorney named Brian Murtagh, who was attached to the CID command in Washington and who had been involved in the processing of paperwork relating to the MacDonald case since the completion of the CID reinvestigation in December of 1971.

As he had processed, Murtagh had read; and as he had read, he had formed the opinion that Jeffrey MacDonald was indeed guilty of the crimes with which the Army had charged him.

Once he had come to that conclusion, Murtagh found it difficult to accept that Justice Department attorneys—who had made it clear to him that they were equally convinced of MacDonald's guilt—could decide, for what they claimed were pragmatic reasons, that prosecution should not even be attempted.

"It seemed to me," Murtagh would say years later, "that the gravity of the crime was such that it was the duty of anybody who believed MacDonald guilty—and there was no one I talked to who didn't—to take all available steps to attempt to bring him to trial, no matter how unlikely conviction seemed. As far as I was concerned, that was the social contract. That was the duty of the people who held those positions." The holders of those positions, however, did not appear to agree.

The core of the problem, as Murtagh perceived it, was that no one with the power to make a decision had ever directly exposed himself to the minutiae of the case—the details of the physical evidence which, Murtagh believed, so clearly marked Jeffrey MacDonald as the killer.

Always, an assistant would be instructed to review the massive file, and he in turn would delegate to another assistant the task of doing the actual reading and that would lead to the compilation of a condensed report based upon which the first assistant would write a memorandum which would then be presented to the official who had first been asked to consider the question.

By the time a redrafted memorandum, designed to satisfy a superior who lacked the time to deal with raw material, reached a desk at the level at which decisions were made, it was as devoid of emotional content as a stock analyst's buy, sell, or hold recommendation.

Also, the recommendation was always the same: do not prosecute. From a cost-effectiveness standpoint, the MacDonald case was considered a loser. Whether he was guilty or not was irrelevant: without a history of similar actions, without a confession, without any witnesses, and with no apparent motive—even if the original investigation had not been so badly mishandled—the attempt to convict him was so unlikely to succeed as to render unjustifiable the resources that would have to be expended. It was as if Colette and Kimberly and Kristen MacDonald were and always had been mere abstractions.

Brian Murtagh, however, did not think of the case in those terms. He thought of the slashed and battered bodies of the pregnant woman and the two little girls, awash in blood in their own bedrooms during the darkest hours of a raw and misty night. For him, the prosecution of Jeffrey MacDonald was not simply a function of his professional life but a compelling moral issue. Murtagh eventually came to see himself not only as an employee of the U.S. government, but as a lawyer—the only lawyer— representing the interests of Jeffrey MacDonald's dead wife and daughters.

Brian Murtagh had become almost as preoccupied by the case as had Freddy and Mildred Kassab. For two years he had sought—in meetings and in memorandums—to convey his sense of moral urgency to the seemingly endless teams of Justice Department attorneys who had been given responsibility for reviewing the evidence. For two years, he had failed. He was, after all, only a twenty-seven-year-old Army captain. He wasn't even a member of the Justice Department.

"For two years," Murtagh said, "I couldn't get anybody to
feel."

Murtagh had grown up in the Forest Hills section of Queens in New York City. He had graduated from Georgetown University. He was five feet seven, wore horn-rimmed glasses, and weighed 130 pounds. He owned neither sports car nor yacht, and neither countesses nor airline stewardesses sought his company.

One afternoon in the last week of June, having learned that the case was now in the hands of one of the Justice Department's "most experienced trial attorneys," he called Victor Woerheide to explain the depth of his commitment to the investigation and to offer to be of assistance. He expected to be told—and perhaps not very politely—that if Woerheide, or anyone else in the department, felt in need of help from a twenty-seven-year-old Army captain, he would ask for it. Instead, Woerheide said,

"Pick me up on the comer of 10th and Constitution in half an hour."

Victor Woerheide spent that afternoon at CID headquarters in Washington, listening to the tape of Jeffrey MacDonald's April 6, 1970, interview. Victor Woerheide looked at the pictures. Victor Woerheide flew to Fort Bragg and, in the company of Brian Murtagh, spent hours inside 544 Castle Drive. He learned the fine points of blood and fiber analysis. Working seven days a week and up to sixteen hours a day, he studied reports of the investigation and of the reinvestigation. He also had Brian Murtagh reassigned to serve as his aide at the Justice Department. And, in perhaps his most radical departure from bureaucratic tradition, Victor Woerheide even asked to see Freddy Kassab.

For two years, to Kassab, the Justice Department had been a fortress he'd been unable to breach—a bastion of inaction fiercely guarded by an interlocking network of signatures, all of which appeared at the bottom of letters saying that the case was undergoing internal review.

Now, on July 18, 1974, for Freddy Kassab, the Justice Department was Victor Woerheide—hulking, red-faced, and scowling— sitting behind a desk which was littered with hundreds of unanswered phone messages, some of them dating back months, as well as pieces of a partly disassembled outboard motor.

Woerheide had one bare foot draped over the edge of the desk and was clipping his toenails into a wastepaper basket when Kassab arrived. He did not get up. He did not even put on his sock. But he did say to Freddy Kassab—whose commitment and perseverance he was already in awe of, and with whom, being a grandfather himself, he had developed a great empathy—that he believed Jeffrey MacDonald to be guilty of murder and that he was going to order the convening of a federal grand jury in the Eastern District of North Carolina.

The grand jury was impaneled in late July. The first person called to testify was Jeffrey MacDonald.

"We have no expectation that this grand jury is going to indict Dr. MacDonald," Bernie Segal told the press upon his arrival in Raleigh, North Carolina, with his client. "He's being called as one of about fifty people who have got bits and pieces of information to give."

At one o'clock on the afternoon of Monday, August 12, 1974, Jeffrey MacDonald entered the grand jury room. He was alone. In accordance with grand jury procedure, not even his own

lawyer was permitted to be present. There were no cameras. There was no music. There was no applause. For an audience, there was only Victor Woerheide, an assistant from the U.S. Attorney's office in Raleigh, a court reporter, and the twenty-three citizens of North Carolina who had been chosen at random to serve as grand jurors.

It was a long way, indeed, from Dick Cavett.

PART FOUR

THE DAYS OF AFFLICTION

And now my soul is poured out upon me; The days of affliction have taken hold . . .

Job 30:16

A
t the request of MacDonald, author Joe McGinniss (above) lived with the accused in a fraternity house on the North Ca
rolina State University campus
dur
ing the 1979 trial to gather in
formation for a book. It was during the three years following the guilty
verdict that McGinniss studied every aspect of the case and formulated his own opinions,
photo by nancy doherty

The Voice of Jeffrey MacDonald

For me, for my own personal head, the move from New York to California, I think, was really what allowed me to survive. To come back from—you know, from February 17th.

It gave me space. It got me away from the people I knew and were around and all the things that constantly reminded me of Colette and the kids, and from Freddy and Mildred, and the concentration in the East on getting back into the case and either writing a book or continuing the pursuit with Congress, or, ah, continuing the pursuit of the assailants.

All of that was suddenly broken and I was out on the West Coast, working very hard by normal standards, but not hard by my standards—working sixty or seventy or eighty hours a week—becoming well known in medicine, writing papers, writing articles, chapters in textbooks, teaching a whole lot—I became a well-known instructor in cardiopulmonary resuscitation, I was one of the first instructor-trainers for the whole California Heart Association and then was made a member of the national committee for American Heart and began to teach CPR all over the country, and after about six months they made me director of the emergency room at St. Mary's.