Fatal Vision (82 page)

Bernie Segal's loud laughter broke the tension. "Jeff, go home, run five miles, have a beer. And take it from me, from the one person who has never misled you: there isn't going to be any appeal."

Jeffrey MacDonald stayed up late that night, watching
Saturday Night Live
on TV.

For 81 percent of the people contacted by the Duke psychology professor to have said yes, they had heard of the case involving Dr. Jeffrey MacDonald, was extraordinary. In such random samplings it is rare for 81 percent of those polled to be able even to identify the President of the United States.

It seemed likely that for the remaining 19 percent unawareness ended on Sunday morning, with the publication of a front-page story in the Raleigh
News and Observer.
The article was accompanied by pictures of Jeffrey MacDonald in the company of his "colorful, West Coast attorney," Bernie Segal, and by old pictures of Colette and Kimberly and Kristen, and by a photograph of the boarded-up exterior of 544 Castle Drive—the murder scene still sealed after nine and a half years, pending final adjudication of the case.

As the date for trial neared, the story said, more and more people had begun to drive slowly up and down Castle Drive, staring. The woman who now lived next door to what had been the MacDonald apartment was quoted as saying she "couldn't sleep for a week," after being informed of what had happened there.

An Associated Press story printed in the Sunday paper in nearby Durham portrayed Jeffrey MacDonald as a man who lived "the good California life," complete with posh condominium, stewardess, sports car, and boat. The story also quoted Bernie
Segal as having said that he'd wanted the trial moved from Raleigh to a "hip, sophisticated community," because, "God knows how a redneck stands"—a remark which Segal denied having made.

A television crew was stationed outside the Kappa Alpha house, hoping to film a glimpse of MacDonald if he emerged. News broadcasts featured hourly reports on the impending trial, even though jury selection had not yet begun.

For a final review of selection procedures, the Duke professor arrived at Kappa Alpha early Sunday afternoon. Clearly, Jeffrey MacDonald was still concerned.

"The thing that keeps me awake nights," he said, "is how valid are our starting premises? Suppose we're wrong?"

Once again, Bernie Segal spoke with reassurance. This was science, this could not fail. "Besides," he said, beginning to chuckle as he lit a pipe, "I intend to provide you with the ultimate safeguard, at great sacrifice to every principle I hold most dear: I will wear a Confederate flag in my lapel."

The mood remained upbeat all afternoon. Some of the Kappa Alpha boys brought in a keg of beer and two dozen steaks and hosted an early evening barbecue. Wade Smith came over with his banjo. Songs were sung. Jokes were told. Jeffrey MacDonald basked in the attention. It felt more like the kickoff of a political campaign—with MacDonald, of course, as the candidate—than it did the eve of a trial for the murder of a pregnant woman and two little girls.

By late evening, MacDonald's mother had brought out an album of family snapshots and was showing people what Jeff had looked like, in California, when he'd grown a beard. As the keg of beer neared its bottom, giddiness began to prevail. Wade Smith could be overheard telling the Duke psychologist that he had neglected to ask the one most important question of all: "Have you ever been the victim of a homicide?"

It took three days to pick the jury. Seven men, five women, all but one of them white, all but one (the same one) with at least some college education. Half were over the age of forty. Included were two accountants, a chemist, the son of a socially prominent Raleigh physician, a former Green Beret sergeant from Fort Bragg, a former North Carolina state policeman, and a woman whose son, during the school year, resided at the Kappa Alpha house.

Midway through the process, Jeffrey MacDonald said, "Every time Bernie stands up to accept one of them I feel another nail being hammered into my coffin." Both Segal and the Duke psychologist, however, were delighted with the makeup of the jury.

"Take the former highway patrolman," Segal explained. "The prosecution wanted him because he used to be a cop. But we wanted him for a better reason: because we're going to show that the evidence in this case was so badly screwed up that no decent cop would want to be associated with it."

And even MacDonald was vastly relieved at the inclusion of a former Green Beret. "That tie is so strong you'd walk across water for one another," he said. "There is no stronger bond. So at the very worst"—here, he laughed nervously—"I know I've got at least a hung jury."

Freddy and Mildred Kassab were in the courtroom throughout the process of jury selection, sitting side by side in the second row on the right, across the aisle from (though not acknowledging the presence of) Jeffrey MacDonald's mother, just as they had sat across the aisle from her sixteen years earlier in that small Catholic church in Greenwich Village.

Kassab, stocky and florid, sat fanning himself with a prosecution floor plan of the interior of 544 Castle Drive. His wife, pinched and small, sat next to him, staring straight ahead in silence. Occasionally, Freddy, his arm around her, would lightly stroke her shoulder with his thumb.

Less than ten yards from the Kassabs—after all the years of being separated from them by 3,000 miles—sat Jeffrey MacDonald. He was, as instructed, wearing a conservative, well-tailored suit. For the most part he, too, stared straight ahead, his face impassive. From time to time, as a prospective juror was being questioned, and as the Duke professor was handing up a card with a final rating, he would bend to consult with his attorneys.

At the end of the third day, with the twelve jurors and four alternates finally seated, MacDonald, carrying a briefcase, walked down the center aisle toward the rear door.

Freddy Kassab had just stepped out into the lobby to speak to reporters. By sheer chance, MacDonald reached the door at the same moment as Mildred Kassab. For the first time in more then eight years, their eyes met. He glanced away immediately. They did not speak. Her gaze—in which both immense pain and raw hatred were apparent—followed him as he walked out the door.

Driving back to the Kappa Alpha house, MacDonald said that of course he had seen her and that he had been very tempted to speak to her. "I wanted to say something like, i hope you get
through this okay,' but I was afraid she'd probably take it the wrong way."

In the next day's paper, Mildred was quoted as saying yes, she had seen him too. "The only thing I could think of," she said, "was Colette, clumsy with her five months' pregnancy, trying to get away from him." No, she said, she had not been tempted to speak. "What was I supposed to say—'Good luck'?"

Victor Woerheide had dropped dead of a heart attack while walking to a corner store to buy a bottle of Tabasco sauce in October of 1975. To prosecute the case in his stead, the Justice Department had chosen James L. Blackburn, an assistant U.S. Attorney from Raleigh.

Blackburn was a short, cordial, soft-spoken man whose silvery gray hair and open, boyish face seemed to blend wisdom and innocence. He, like Wade Smith, was a native of North Carolina. He had, in fact, grown up on the campus of Wake Forest University, where his father had served as Methodist chaplain and from which he himself had later graduated.

Blackburn's courtroom demeanor was not that of a bloodthirsty prosecutor seeking headlines, but of a quiet, country man with a sad but inevitable duty to perform. One could, without stretching the imagination unduly, picture Blackburn as a courteous young aide to General Lee at Appomattox.

Even Bernie Segal, whose contempt for both Judge Dupree and for Blackburn's Justice Department colleague, Brian Murtagh, was boundless, admitted that Blackburn struck him as a decent man. 'Twisted and wrong," Segal said, "but decent."

Blackburn was thirty-four years old, he had a two-year-old son named Jeffrey and a daughter who was just two months old. This was the first murder case he'd ever prosecuted.

For four weeks, the prosecution presented its evidence before Judge Franklin
T
. Dupree, Jr., a sixty-five-year-old native of nearby Fuquay-Varina, North Carolina. Much of the time was devoted to complex explanations of the circumstantial links that
bound MacDonald to the commission of the crimes. Though he had Brian Murtagh, with all his knowledge, at his side, Blackburn's early presentation seemed tentative and occasionally confused. At the end of the first week, in fact, a wire service story reported that the case against MacDonald was off to "a shaky start."

The testimony was sometimes gruesome (particularly that of the pathologists, whose autopsy descriptions were accompanied by slides of the bodies, designed to emphasize the severity of the injuries sustained). A great deal of the evidence was highly technical, and every bit of it was challenged, point by point, by Bernie Segal, who, with waving arms and a voice by turns booming and coldly sarcastic, went after prosecution witnesses like a German shepherd mauling a jogger.

Just as in 1970, every investigative blunder was exposed. The jurors, who sat silently and attentively through the long, draining days, learned—as had Colonel Rock in 1970—that the flowerpot had been stood up by a military policeman, that Jeffrey MacDonald's wallet had been stolen from under the eyes of the MPs, that the lieutenant had failed to send a patrol to look for the woman standing in the shadows, that the garbage had been emptied, the
Esquire
magazine read, the bedroom telephone handled, the bloody footprint destroyed, the toilet flushed, the children's fingerprints never taken, other fingerprints poorly photographed and inadvertently destroyed, Jeffrey MacDonald's pajama bottoms thrown away, MacDonald himself interviewed at the hospital while heavily sedated, and that a "known sample" of MacDonald's hair had actually come from a pony.

Nine and a half years later, Bernie Segal's imagery was still intact. "They came in like a herd of circus elephants," he said of the MPs, implying strongly once again that no valid inferences could be drawn from physical evidence so poorly preserved.

Throughout this phase of the trial, the defense was exultant. Each day, Wade Smith would leave the courtroom and, while declining to comment publicly, would privately express an ever growing sense of confidence.

"I can see it on their faces," he would say. "The jury can't believe that Jeff is even here . . .

"A wonderful day, we did nothing but gain
...

"This is not going to be as hard as we thought
..."

Even MacDonald himself grew so confident that he began to give interviews to the press. He was aware, he told one reporter
,
that some people found his apparent lack of emotion disturbing. "There's no question," he said, "it would be better for me if I were so distraught I could hardly get to court every day. But I think the jury will see the real me when I testify. I hope they understand that not everyone wears their heart on their sleeve."

Still, it appeared to another interviewer that "Most of his answers, even when asked about his feelings, are given matter-of-factly, almost coldly, as if he were speaking about someone else."

Only when he began to discuss his tormentors did MacDonald show sparks of real feeling, and that feeling appeared to be anger. "It took them six months behind closed doors, without a defense, to get a grand jury to issue an indictment. If that doesn't tell a normal person something, that normal person isn't thinking. . . .

"I've testified whenever they've asked. I've given them whatever they've wanted. And here we are on trial on false charges nine years later because of the mindless, middle-level federal bureaucracy, with people like Brian Murtagh who run around without any controls."

A "competent superior," MacDonald said, would have halted the prosecution before it had even gone to a grand jury, much less to trial. "Sure, I'm bitter," he said. "They're building careers on my case. But the truth has to come out sometime. They can't keep lying forever."

MacDonald said he "could not conceive" of a conviction. "That," he said, "would be the Alfred Hitchcock ending to the horror story."

To some observers, however, there were indications that MacDonald was drawing at least as close to a pair of handcuffs as he was to a chilled bottle of celebratory champagne.

It was not possible to assess the impact of the government's presentation upon the jury (except to note that none of the jurors seemed entirely unmoved by the sheer horror and sadness of it all), but Judge Franklin Dupree was proving considerably more scrutable.

Judge Dupree, who had been appointed to the federal bench in 1971 by Richard Nixon, was possessed of an unusually mobile, expressive face, and from the earliest days of the trial the expression most often seen upon it as Bernie Segal conducted cross-examination was one of distaste.