July 19, 1979
Opening Statements by James Blackburn and Wade Smith, with pre- and post-statement bench conferences
Opening Statement by James Blackburn for the prosecution
Opening Statement by Wade Smith for the defense
Scans of original transcript
|Opening Statement by James Blackburn|
|Opening Statement by Wade Smith|
F U R T H E R P R O C E E D I N G S 9:30 a.m.
THIS CAUSE came on for further trial before The Honorable Franklin T. Dupree, Jr., United States Chief District Judge, and a jury, on Thursday, July 19, 1979, at Raleigh, North Carolina.
(The following proceedings were held in the absence of the jury and alternates.)
THE COURT: Good morning, ladies and gentlemen. Are there any matters to come before the Court before we bring the jury in?
MR. BLACKBURN: Yes, sir. May Counsel approach the Bench and discuss with you that remaining matter?
THE COURT: All right. Approach.
B E N C H C O N F E R E N C E
MR. BLACKBURN: Judge, what I was referring to was, should we at this point try to get into any further matters on chain of custody, or do you want to delay that until a little bit later in the proceeding? How do you want to handle that? Bernie represented to me just a few minutes ago that their motion in limine referred to two things. It referred to opening statements and it also referred to the case in chief.
I think Bernie represented to me this morning that insofar as the opening statements are concerned, he is not terribly worried about that, insofar as custody; is that correct?
THE COURT: Well, I received one last night at 5:55 having to do with Government evidence of extramarital affairs, and one five minutes ago, which I have not had a chance to read, but apparently has to do with some magazine.
LAW CLERK: I understand there is another on the way.
THE COURT: Every hour on the half hour, thank you.
MR. BLACKBURN: To make it easier on you, at least at this point, with respect to the first motion concerning extramarital affairs, I have told the Defense that in our opening statement, we will not refer to that, so that takes care of that.
Now, with respect to the case in chief, we will, of course, respond to the motion at a subsequent time.
THE COURT: I want you to respond to it, and it may be that I will hear parties on that. If we do, as you know it is not my practice to educate ourselves at the expense of jury time, so we will do this at some off hour.
MR. BLACKBURN: I think we have some time leeway built in on that question with respect to the second motion in limine concerning the Esquire magazine. I told the Defense that I would wish to refer to the magazine's existence in my opening statement, and the fact that it had blood on it. They did not object to that. I am not going into what is inside the magazine in my opening statement. We will likewise respond to the rest of it as quickly as we can.
MR. SEGAL: We are satisfied, Your Honor, with Mr. Blackburn's representations in that regard. There is no problem with the opening, I think, at this time.
MR. BLACKBURN: In the opening statement, concerning chain of custody, I advised Bernie that there were a small number of specific items that we were going to refer to, such as the weapons, sheet, the pajama top -- that sort of thing -- maybe the glasses, but very few specific items. I think I represented him correctly that he has no objection to that, insofar as the opening statement is concerned.
MR. SEGAL: I am satisfied in that regard, Your Honor, to defer anything in that regard, and Mr. Blackburn is free to refer to the matters in the context in which he has explained it to me. I don't imagine there will be any problem.
THE COURT: All right, then; are we ready to proceed with opening statements?
MR. BLACKBURN: I believe we are.
MR. SEGAL: I believe we are.
THE COURT: All right.
MR. BLACKBURN: I should say one thing further. The matter we discussed last Saturday concerning the exclusion of certain witnesses on the Kassabs and Mrs. MacDonald, we have temporarily delayed until lunch break. I guess the Defense has delayed until lunch break exercising its right to exclude the Kassabs is the best way to put that, so they are free to remain here this morning.
THE COURT: All right.
MR. SEGAL: Have we otherwise excluded the other witnesses who are within the ambit of the order?
MR. MURTAGH: I see one back there that I will get out.
MR. SEGAL: I think that is all the business I have, Your Honor.
THE COURT: All right.
(Bench Conference terminated.)
THE COURT: All right, Mr. Marshal. Let the jury come in.
(Jury enters at 9:37 a.m.)
(The following proceedings were held in the presence of the jury and alternates.)
THE COURT: Good morning, ladies and gentlemen. The Court wants to thank you for your patience, particularly those of you who have been members of this jury since Monday and Tuesday, in waiting while we go through the very serious and important process of selecting a jury to try this case.
We will shortly be hearing the opening statements of Counsel. These are statements made by the attorneys for each side -- or at least for the Government. The Defendant does not have to make a statement at this time. They may or may not. They may reserve it and make it later.
But these are statements made by Counsel as to what they anticipate or expect the evidence in the case to show. What the lawyers are now going to tell you is not of itself evidence and will not be considered by you as such, but rather as an outline and sort of a projected or anticipated summary of the evidence which the parties expect to show by their witnesses or exhibits or other evidence in the case.
Madam Clerk, you may impanel the jury in this case. Then they will be with the Government for its opening statement.
(Jury impaneled at 9:42 a.m.)
THE COURT: All right, the Government will go first.
O P E N I N G S T A T E M E N T 9:43 a.m.
MR. BLACKBURN: Ladies and gentlemen, my name is Jim Blackburn. I am Assistant United States Attorney with the United States Attorney's Office here in the Eastern District of North Carolina.
First of all this morning, on behalf of the Government I want to express to you our sincere appreciation for your consideration in coming here this week for three very long and hot days, and being willing to serve on jury duty.
As Judge Dupree told a number of jurors late yesterday afternoon, it is considered that jury service is one of the very highest forms of citizenship, and indeed the Government, and I am sure the Defense, are indebted to you for being willing to do that.
First, I want to introduce some of the other individuals that you may have seen during the course of the questioning here this week. Over to my right, first is Jack Crawley, who is an Assistant United States Attorney. He has been in the office for a number of years; Brian Murtagh, who is with the Justice Department and has been with them for a number of years; and to my far right, Mr. George Anderson, who is the United States Attorney, and has been such for about two years.
Ladies and gentlemen, during the questioning of each of you -- I know at least the very first juror -- Judge Dupree read a portion of the Indictment against the Defendant Jeffrey R. MacDonald. It is a three-count Bill of Indictment. It was returned by a Federal grand jury sitting in Raleigh on January the 24th, 1975. I want to read the first count: "...That on or about the 17th day of February, 1970, at Fort Bragg, North Carolina, upon lands acquired for the use of the United States and under the exclusive jurisdiction thereof, and within the Eastern District of North Carolina, JEFFREY R. MacDONALD, with premeditation and malice aforethought, murdered Colette S. MacDonald by means of striking her with a club and stabbing her, in violations of the provisions of Title 18, United States Code, Section 1111." That is the First Count.
The Second Count reads substantially the same. It changes in only one material aspect. The name of the victim is changed to Kimberly K. MacDonald. The Third Count is also changed in two particulars. The victim's name is changed to Kristen J. MacDonald, and the means of killing her has been changed from "striking her with a club and stabbing her" to "by means of stabbing her." In other words, in the Third Count there is no reference to striking Kristen with a club.
Now, ladies and gentlemen, the purpose of an opening statement by Counsel for both the Government and the Defense is to sort of lay out to you in some broad-brush outline what we are going to show to you during the course of this trial; not in every detail, certainly, but to a general degree where we are going to be going over the next several days.
Now, taking any one of the three counts which I have mentioned, there are certain key elements that the Government must prove. You may recall that you heard Judge Dupree instruct you or question you concerning the burden of proof of the Government, and I know that each of you said that you would in effect hold the Government to the standard of the burden of proof beyond a reasonable doubt, and if we did not meet it, you would acquit the Defendant. But if we did, then that is a different story.
The Government does, in fact, have the responsibility for proving to you that the Defendant is guilty beyond a reasonable doubt -- not any doubt, because it is rarely possible, I think, to prove anything beyond any doubt; but certainly beyond a reasonable doubt. We don't run from that responsibility. We are going to accept that challenge, and we intend to meet it during the course of this trial.
Now, what is it in each count that we have got to show you? What is it that we have got to prove to you? First of all, we have got to prove, I think, beyond a reasonable doubt that the date in the Indictment -- the 17th day of February, 1970 -- that the murders of Colette in the First Count, Kimberly in the Second, and Kristen in the Third, did in fact take place on those days; secondly, that they occurred at or on Fort Bragg, North Carolina; thirdly, that these individuals were killed by someone who did it with premeditation; next, that someone who killed them did it with malice aforethought; that the means that we inserted in the Indictment -- the clubbing and stabbing in the two cases and the stabbing in the third -- is the means by which these individuals died. Finally, the Government has the responsibility of proving to you beyond a reasonable doubt that the Defendant -- the man sitting right there -- is the man that killed Colette, Kimberly and Kristen MacDonald. That is the burden of proof that the Government of the United States has, and that is what we intend to show you at this trial.
There are two terms, ladies and gentlemen, in that Indictment that might be somewhat foreign to you. I don't know they are. They were foreign to me a long time ago, so they might be to you. Of course, what I tell you is not evidence, and I am not empowered to instruct you as to the law. Only the Judge can instruct you as to the law.
But I suspect that, when the time comes for that, he will instruct you with respect to certain key elements in the Indictment -- "premeditation" and "malice aforethought."
What is "premeditation"? I suspect that the Court will instruct you that "premeditation" is something akin to the formation of a specific intent or a preconceived design to kill, giving thought before acting to the idea of taking a human life and reaching a definite decision to kill. A period of time, no matter how brief, can constitute deliberation.
Secondly, "malice aforethought": "malice aforethought," I suspect the Court will instruct you, means an intent at the time of a killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life. But "malice aforethought" does not necessarily imply an ill will, a spite or a hatred toward the individual killed. Those two terms, ladies and gentlemen: "premeditation" and "malice aforethought."
Now, during the long questioning that the Court and Counsel put you through over the last three days, I know that one question or two questions that you were always asked is, did you understand and agree with the distinction between direct evidence and circumstantial evidence -- direct evidence being that when you have an eyewitness; circumstantial evidence where there is a chain or a web of circumstances that point unerringly to the fact that a certain individual may have done a certain thing.
The case for the Government of the United States, ladies and gentlemen, is built primarily on circumstantial evidence. Let me be candid about that. Circumstantial evidence, as His Honor instructed you, is regarded by the law just as equally as direct evidence.
Now, there are two types of evidence that we are going to put before you during this trial. We are going to parade -- I suppose you will think it is a parade by the time it is through -- a number of individuals to this witness stand who are going to say certain things, and we are going to put in a lot of physical evidence -- demonstrative evidence. You may think, at times, that you are getting yourself burdened down with "I can't remeber it all." We are not asking you to take a test on everything we show you. We are not going to give you and ask you to take a test.
What we are going to ask you to do is listen to the evidence that comes from the witness stand, examine the physical evidence as it is shown to you and reach your own conclusion.
What is a good example of circumstantial evidence? What am I talking about when I speak of circumstantial evidence? Suppose during the nighttime, you are asleep in your own bed, and everything is quiet; and all of a sudden, you are awakened in the middle of the night by a loud crashing sound. You don't pay any attention to it. You go back to sleep; but you have heard it.
The next morning when you awaken and you get up, you look outside and you see that it has snowed during the nighttime; and so, you go to your back door and you see your two garbage cans -- those metal things that clank so loud -- both knocked over. You see a set of dog tracks coming to the garbage can from your neighbor's yard; and you see a set of dog tracks going back to your neighbor's yard and the dog tracks stop where your neighbor's dog is sitting. You can probably assume that that dog had something to do with knocking over those garbage cans. That is circumstantial evidence, ladies and gentlemen.
Now, what is the evidence that the Government of the United States -- what do we have to show you that the Defendant, with premeditation and malice aforethought and cold blood, destroyed his family? Ladies and gentlemen, the evidence will show that about nine and one-half years ago, in 1970, there lived at Fort Bragg, North Carolina, a Federal military reservation, the MacDonald family. There were four members of that family.
Colette, at that time, the evidence will show, was about 26 years of age. She and the Defendant had learned, I think at Thanksgiving of 1969 shortly before, that they were to have another child. Colette was the mother of two. She and the Defendant, Dr. MacDonald, had gotten married in the early to mid-sixties, and Colette had quit school -- quit college. Kimberly was born, and Colette never finished her college education.
And so, like so many people, during this time in her life she was trying to complete what she had given up before. She was an English Lit major in college but she was taking a class in child psychology in February of 1970.
Kimberly MacDonald was five years of age in 1970. She would be six in April. She was in kindergarten -- very bright, very friendly, by all accounts her father's child. Kristen, the baby, was two. She would be three in May. She was shy, and somewhat of a tomboy.
The Defendant, Jeffrey MacDonald, also like Colette, about the same age -- they had dated off and on through high school -- was a doctor -- ambitious. They had come to Fort Bragg just a few months before -- late summer, early fall of 1969. MacDonald was a member of the Special Forces, interested in becoming the physician for the Fort Bragg Boxing Team. This was the MacDonald family on the 16th of February, 1970.
On the 16th in the evening -- it was a Monday night, Colette MacDonald, as had been her custom, was going to her child psychology class with a friend and neighbor, Elizabeth Krystia, now Elizabeth Krystia Ramage. They went to class. Colette, rather soft-spoken, did, in fact, speak up that night at the class, which was somewhat unusual for her, and asked a couple of questions concerning the bedwetting problems that one of her children had. The class ended at its usual time. I think Elizabeth Krystia got home about 9:30 that night, and Colette got home a few minutes later -- Colette having driven Elizabeth Krystia to class. Colette went inside 544 Castle Drive for the last time.
The evidence, ladies and gentlemen, will show that on the 16th it was cold, wet, rainy, miserable -- a typical North Carolina February night; that it had rained hard off and on during the early evening, slowing to a light drizzle in the early morning; and that sometime between 3:00 and 4:00 o'clock on the 17th of February, 1970, the lives of Colette, Kimberly and Kristen MacDonald came to an abrupt and terminable halt. They died.
They died a terrible death. Colette died as a result of being clubbed and stabbed to death. Kimberly died as a result of being clubbed and stabbed to death, and Kristen died as a result of being stabbed, and stabbed, and stabbed to death.
The Defendant, Jeffrey MacDonald, was also at home that night. He, alone, of the family, remained alive. On that night, as on most nights in Fort Bragg, the Military Police were on patrol throughout the area. Castle Drive is a part of Corregidor Courts, which is a housing area for officers at Fort Bragg.
One MP will say and has said that he had the opportunity that night to pass near Castle Drive a number of times and saw no one except a guard at the PX. It appeared to be a relatively quiet evening, except of course at Castle Drive at 544.
At about 3:40 or 3:42 a.m., Military Police were alerted by a telephone call that a domestic disturbance had occurred at that address, and they were alerted to go there, and they did. Within minutes, at about 4:00 o'clock a.m., MPs were at the MacDonald residence. They got out of their jeeps, went to the front of the MacDonald address and attempted to gain entrance, to learn that the front door was locked.
One of them, Richard Tevere, went around the back to see if he could gain entry from the back because he happened to know the area and knew that they had back doors. So he went around the back and he saw that the back door to the MacDonald apartment, the screen door, was closed, but the hardwood back door was open. He went in -- first through a darkened utility room, and then into a left master bedroom. What he saw was two people -- a man and a woman. The woman, lying on her back near a green chair, dead. A man lying next to her; he knew not at that point what condition he was in.
Tevere immediately left the apartment, ran outside, ran around the back and said, "Call Womack as soon as possible," -- Womack being the Army General Hospital. Other MPs came around to the back and followed him in. They did not know at that point what else they would find. They did not know whether there were intruders in the house; they did not know whether anyone else had been killed.
Then Tevere walked down the hallway, after he left the master bedroom, to see if he saw anyone. A hall and bathroom light was on, and a kitchen light also was on. He did not see, at that point, anyone else. He came back to the master bedroom. At this point, another MP, Kenneth Mica, had seen the male. He was the Defendant, Jeffrey MacDonald, on the floor, and recognized that he was alive. He then requested of the MPs some assistance.
Mica gave the Defendant mouth-to-mouth resuscitation. He gave it to the Defendant about three times. The first time it only lasted about a minute or so. The Defendant on the floor attempted to resist the mouth-to-mouth resuscitation and said to the MPs, "Check my kids," "Look what they've done to my wife." So Tevere, for the first time, realizing that there might be other people in the apartment, went down the hallway, went into the front bedroom facing the street, which was where Kimberly slept, walked in two or three steps, and saw in the bed a little girl obviously dead.
He went directly across the hall -- he did not go into the other bedroom at that point because he could see from the doorway another little girl, obviously dead, with a pool of blood on the floor. She was laying on her side.
Tevere went back to the master bedroom. Mica had been giving the Defendant mouth-to-mouth resuscitation and the question was asked, "Who has done this to you?"
The Defendant responded, "Four people." He knew of four intruders -- hippies -- a woman carrying a candle, and three males. Also that night, at about the same time the MPs got there or shortly before, a Criminal Investigation Division Duty Agent, William Ivory, was on duty and heard the radio call. He got up and went to Castle Drive immediately. He alerted other investigators after he got there to come as well.
Upon arriving there, shortly after 4:00 o'clock a.m., he went in through the living room -- the living room door having been opened by one of the MPs -- and he saw the Defendant being wheeled out and carried out on a stretcher. He did not know who he was at that point. He immediately went through the house and saw the three people dead, and noted that there was an MP standing guard at both the front and the back of the house.
For the next four hours, 4:00 o'clock until 8:00 o'clock, the processing of that crime scene took place. Notes would be taken, and photographs of every conceivable thing would be made, and body outlines of Colette and Kimberly and Kristen would be drawn. That is to say, body outline in a felt pen around where they lay, so it could be marked.
In a short time, maybe 5:00 or 6:00 o'clock that morning, Agent Bob Shaw observed and collected four items. In the master bedroom near the dresser, a paring knife. Outside, near the house, three items: a piece of wood -- a club -- and another paring knife with the words "Old Hickory" written on it, and an ice pick.
Ladies and gentlemen, with respect to these four items, the Government of the United States will offer evidence and prove to you:
(1) That the club of which I speak came from the MacDonald house and was the murder weapon, or one of the murder weapons, that was used to attack Kimberly and Colette MacDonald;
(2) The ice pick could have been the weapon that killed Kristen MacDonald and Colette MacDonald, or at least put the wounds in their bodies, assisting in killing them. That the MacDonald family had ice picks, or an ice pick;
(3) That the other paring knife -- the "Old Hickory" knife, a sharp blade, single-edged blade -- could have been the knife that stabbed Colette, stabbed Kimberly, and stabbed Kristen, and that the MacDonald family did, in fact, have knives. And with respect to the fourth knife -- a Geneva Forge knife -- that like the "Old Hickory" knife, it too could have come from the MacDonald household.
At about 8:00 o'clock a.m., Colette, Kimberly and Kristen left Castle Drive for the last time. They also, like the Defendant, went to Womack. They did not go to the same place, though; they went to the morgue.
At about 9:30 that morning their bodies were autopsied. Colette was examined by Dr. Gammel. The autopsy of Colette revealed certain things that will be revealed to you during the course of this trial by the Government.
First, both arms, the right and the left, were broken: the right arm broken -- both bones, the left arm -- one bone broken twice at different places, that on or about her face, head and chin she suffered approximately six blunt trauma injuries that could have been inflicted by the use of the club to which I have earlier referred; that her skull was fractured and that she also had a wound on her chest that could have come from the end of a club.
She suffered approximately 16 wounds that could have been inflicted with a sharp-edged knife -- stab wounds -- seven in her chest, nine in her neck. Her trachea had been cut -- both lungs and pulmonary artery. Colette bled to death.
Finally, she also suffered approximately 24 puncture wounds that could have been inflicted by the use of the ice pick, to which I have earlier referred. Three of those wounds in the left arm, 21 on her chest, 16 on the left and five on the right. Kimberly would suffer at least two blunt trauma injuries: her right cheek bone, her nose would be broken, the back of her skull fractured in every conceivable part, and about eight to 10 stab wounds that could have been inflicted with a sharp knife, to which I have earlier referred, in her neck.
Kristen, the only one of the three that would not suffer a blunt trauma wound, such as with a club, but would suffer at least 33 ice pick or stabbing wounds -- 16 approximately with an ice pick, 17 approximately with a knife -- other wounds could have been coming from the other weapons which I have referred -- the ice pick and the Old Hickory knife.
Kristen would also have on her hand and fingers other cuttings. Dr. MacDonald, the Defendant, who had left for the hospital about 4:00 o'clock, would also be examined, and also had injuries. What does our evidence reveal with respect to his injuries: that he had one bump on his head, a cut on his left arm, a scratch on his right, several abrasions in this portion of his chest, a laceration above his navel, a paper cut on his finger, no wounds on his back, but an incision in the right part of his chest -- an incision which would later cause him to have a second chest tube inserted, due to a pneumothorax or partial collapse of the right lung. Dr. MacDonald, the evidence will show you, is very much alive.
On the 17th, the Defendant would be interviewed for the first of several times, the first by Paul Connolly of the Criminal Intelligence Division, and subsequently that day by Bob Caverly of the FBI; and Bob Caverly would go back and interview him again on the next day, and also on the next day.
Without going into extreme detail, ladies and gentlemen, the Defendant's interviews basically said this: he had gone to sleep in his pajamas in the living room on the couch. He was awakened by hearing screams from his family, and then hit on the head with a club, when he saw four people, three males and one female; that having been struck with a club, and having been stabbed, he collapsed unconscious at the end of the sofa and fell, where he stayed for a period of time, to be awakened later. Seeing his pajama top around his wrists, he took the pajama top off his wrists at some point. He was in the master bedroom; he saw his wife. He placed the pajama top on her chest, checked his kids, attempted to give them mouth-to-mouth resuscitation, saw bubbles in their chests, checked them again, checked his wife to see if she was alive or dead, and finally called for help.
During that week, the week of the 17th, the MacDonald apartment was sealed and examined for evidence. People from Fort Gordon, Georgia, came to examine it, look at it, take fingerprints, check for blood, check for anything they could find that would point to who did these terrible things.
With respect to the fingerprints, there are in the MacDonald a number of fingerprints that have been identified. Some have not. The evidence for the Government will show that due to Kimberly and Kristen having been embalmed a short period after they were autopsied, the fingerprint records of Kimberly and Kristen were never obtained, and their prints have never been eliminated.
A bare footprint in blood exiting Kristen's room was found. I am not going to go in, at this point, to what the significance of that is or what I mean by all that, but simply to alert you to the fact that that is coming and ask you to please pay close attention to it.
You will see with respect to blood, ladies and gentlemen, there are four types of blood in the ABO International Blood Group. There is A, there is B, there is AB, and there is O. In the MacDonald family, each member had a separate blood type.
Colette had Type A. Jeffrey has Type B. Kimberly had Type AB, and Kristen had Type O. Without going into at this point all of the blood evidence, I am going to simply tell you there is a lot of it, and you should pay close attention to where it is and, equally as important, where it is not.
You remember the struggle in the living room. Except, ladies and gentlemen, for a couple of places -- on a magazine and another place -- there is no blood found in the living room.
With respect to other physical evidence, you remember the pajama top of which I spoke -- that the Defendant told investigators it was either torn or ripped over his head. He did not recall which.
A number of threads and yarns are found in that house. The evidence will indicate these could have come from that pajama top and matched all important characteristics of threads and yarns of that pajama top.
You should pay close attention, ladies and gentlemen, to where evidence of fibers, threads, and yarns are found and where they are not found. You remember the struggle in the living room. Not a single thread, not a single yarn that could have come from that blue pajama top is found in that living room.
We will show you in the course of this trial where they are found. We will show you in the course of this trial where blood is found, and whose blood type, I should say, it was.
In the master bedroom in the bed on the headboard is the word "Pig" -- "P-i-g" written over the place where Colette slept. It is written in blood. It is written in Type A blood, the same type as that of Colette.
It is written by someone -- the Government will show you -- who did not use their bare finger but, rather, had a covering on their finger. Ladies and gentlemen, in the master bedroom torn pieces of rubber were found. At least one bearing blood, Type A, the same as Colette's, the same as the writing of "Pig" were found.
By analysis it has been determined, and we will show you, ladies and gentlemen, that those torn pieces of glove match in the primary trace elements to surgical rubber gloves that were kept inside the MacDonald apartment and were found by investigators under a kitchen sink. We will have, ladies and gentlemen, an expert witness who will subsequently testify in the course of his trial as to what we call contact prints, or fabric impressions.
You know that if you put your finger in something and put it down on a sheet of paper, it makes an impression. I am not going to, at this point, go into that evidence here except to alert you to the fact that it is coming.
There will be substantial testimony concerning contact prints and fabric impressions and what they would mean in this particular case.
You remember the pajama top. It was found on Colette's chest with a lot of Type A blood in it, as to be expected -- it was on her chest. It was torn. It was ripped. It was V-neck. Ladies and gentlemen, we will show you that Type A blood, the same type as that of Colette, got on that blue pajama top before it was torn.
It was found on Colette's chest. There are numerous puncture holes in that pajama top. We are going to show you, ladies and gentlemen, that those holes in that pajama top -- most of the holes in that pajama top -- all but a couple -- got on that pajama top or in that pajama top when it was in a stationary, not a moving, position.
Finally, you remember that I told you that the autopsy of Colette revealed a number of puncture holes that could have been made with an ice pick. We are going to show you, ladies and gentlemen, in our evidence, that by placing the pajama top in the proportionate way that it was found on Colette with the right sleeve turned inside-out that, although there were numerous -- more than 21 -- numerous holes, puncture holes, that could have been made with an ice pick in that pajama top, in that pajama top we are going to show you, ladies and gentlemen, that when folded, the holes in that pajama top can match the 21 holes in Colette's chest in a stationary position.
Ladies and gentlemen, this is a thumbnail brief sketch of much, but certainly not all, of the evidence the Government intends to present in its case-in-chief at this trial.
Basically, we believe that the physical evidence points to the fact, unfortunately, that one person -- not two, three, four or more -- killed Colette, Kimberly and Kristen, and that that person is the Defendant.
Let me speak just a brief moment about what we are not going to do. We are concentrating, ladies and gentlemen, on the physical evidence and on the evidence that was found inside Castle Drive -- not outside, although there was some outside.
That is where the murders took place. They did not take place all over Fayetteville. They did not take place all over Fort Bragg. They took place inside the MacDonald apartment.
The circumstantial evidence is real. Physical evidence is real.
It's equally true that the Defendant, Jeffrey MacDonald, was there that night as he is today. It is equally true that physical evidence was there that night. Let me assure you -- it is also equally true that things do not lie. This is not a complicated case -- it is straightforward. I think we are going to make it easy for you to understand -- or we are going to try -- that the circumstantial physical evidence in this case points swiftly and unerringly to the fact that one person killed his family. Every purpose that the Government has at this trial -- every question that we ask -- every witness that we examine -- every argument that we make -- is for only one purpose and that purpose is to bring out the truth. We submit this as charged in the Bill of Indictment: that the Defendant is guilty of Count 1, he is guilty of Count 2, he is guilty of Count 3, of cold-bloodedly murdering his family. It is time, ladies and gentlemen, for that. Thank you.
O P E N I N G S T A T E M E N T 10:33 a.m.
THE COURT: Who will open for the Defendant?
MR. SMITH: I will, Your Honor.
THE COURT: Very well.
MR. SMITH: Thank you. May it please the Court, ladies and gentlemen of the Jury, my name is Wade Smith as you have learned from the questioning by the Court. I am pleased to be involved in this case representing the Defendant, Jeffrey MacDonald, who is seated on the far side of the counsel table, and I am happy to be joined in the defense of Jeffrey MacDonald by Bernard Segal, who practices law in Doctor MacDonald's home state now of California. The three of us will be working with you now serving in our roles on the defense side. This is the first opportunity that we have had to thank you -- I hope that we will have other opportunities throughout the trial in speaking with you to thank you for your service. We know that there are dozens of reasons you could have given for not serving and that service on the Jury is perhaps the highest calling of citizenship. We appreciate the fact that you have taken your time to come and serve in this most important moment in the life of Jeffrey MacDonald and in the lives of other people who have been so interested in this case.
When I have thought about the opening statement in this case, I have thought always of duty. The case does work out so that there are several areas of responsibility -- all of them encompassing duty. The Judge has a duty, you as Jurors have a duty, the prosecution has a duty, and the defense has a duty. The Judge's role is to be the giver of the law -- he will tell you what the law is -- he will rule on motions -- he will rule on objections -- he will keep the trial moving smoothly. The Government's role in this case is to prove -- and in every case there is one point -- a focal point -- on which all else rests and in this case there is a focal point. The focal point in the case is this: the Government must prove to you that Jeffrey MacDonald raised his hand to his wife and stabbed her 40 times, if I counted correctly in Mr. Blackburn's opening statement; that he raised his hand to his wife and struck her with a club on the same evening at the same time, or close to the same time, at least five times; that he used an ice pick; that he used a knife; that he used three weapons -- three separate weapons -- to slay his wife. And they must prove to you that he did basically the same thing with his children. And that is the focal point. They cannot prove to you that it might have happened. They cannot prove to you that maybe it happened -- that maybe a knife was used -- they cannot use words "maybe," "possibly," because, ladies and gentlemen of the Jury, they are saddled with the heaviest burden of proof that you will find in any system in the civilized world -- they must prove beyond a reasonable doubt and to a moral certainty. The Judge will tell you, as members of the Jury, that you must be fully satisfied, entirely convinced -- satisfied beyond a reasonable doubt and to a moral certainty that Jeffrey MacDonald did the things that they alleged that he did. And if they fail in the slightest, he is entitled to his acquittal. If they are using circumstantial evidence they cannot make it as simple as a dog walking over to a garbage can. This is not a case that is that simple. Circumstantial evidence must point unerringly to the guilt of Jeffrey MacDonald.
It must exclude every other reasonable hypothesis. Now that is the Government's responsibility in this case. They must prove -- we ask you, ladies and gentlemen of the Jury, as you get ready to deliberate about this case -- to hold their feet to the fire -- to make them do it.
The defense role in the case is this: we must not be timid, we must not be shy, we must not be weak. If we are timid and shy and weak, our system will not work. Every time a lawyer is timid and shy and weak he fails everybody -- he fails our system -- he fails the people -- he fails the Jury. It is our role to ask every question that we think should be asked; to make every motion that we think should be made; to make every argument that we think should be made; and if it upsets anyone it will just have to upset them. We hope it won't. I don't think it will. It usually would not, but we are not to be concerned about who we upset -- we are to be concerned about advocating the cause of Jeffrey MacDonald, who pleads not guilty.
Those are the functions of the Judge, the Government, and the Defense. The function of the Jury, of course, is to presume Jeffrey MacDonald to be innocent. I don't know that you could say that you are required at this point to be in his corner, but I have thought of it that way -- to be on his side. Maybe that is too much, maybe that is not what the system says, but it does say that in each of your minds at this very moment -- right now in each of your minds -- you must be presuming that he is innocent of all charges, that he did not do it -- you must be presuming that. I think our founding fathers really were serious about that. I think they really meant it when they said that the Jury presumes the Defendant to be not guilty and we ask you at the beginning of this trial to do that.
When I was a boy growing up in Albemarle, North Carolina, we used to go to the movies on Saturday and stay all day, and there was always a Western movie on and we always watched the previews because we wanted to see what we would be watching the next Saturday. We enjoyed these previews and it helped us a lot. It helped us all week to anticipate what we were going to see the next day. That is the purpose of the opening statement. It is not necessarily something to enjoy. Maybe in some cases you'll enjoy, but in this one there could not be anything to enjoy. But it is a preview, it tells you what is going to happen, and to serve a very useful purpose.
Mr. Blackburn used a good term when he said use a "broad-brush" treatment. We will come back in the course of the trial and use a fine brush, and we will paint in the detail for you. We will add color for you. We hope at the conclusion of the trial it will be a clear picture for you so you can understand the evidence and make your decision.
Then, let me make an opening statement on behalf of Jeffrey MacDonald. I will paint with a broad brush. This is a case about a family. It is a story of how a family came to be. It is a story of an unbelievable, an unspeakable tragedy. It is a story of good people -- a mother, a father, and two children, five and two. The mother was 26 and the father was 26. It is a story of happy people.
Ladies and gentlemen of the Jury, the Defense will show you the story of a family with life motives, no death motives. Life motives -- alive -- new birth coming.
The Defense will show you all life motives. Every reason to be happy. The Defense will show you every reason to be living. We will go back to the beginning.
We wil show you a young boy growing up who is just like hundreds of young boys you have known. Just like them, Jeffrey MacDonald. Athlete, good student, leader, always excelling. Always doing well. Always motivated to do his best. Not a lot of money. Going to school at Princeton on a scholarship. Doing well. Going to medical school at Northwestern. Doing well.
We will bring into the picture then, Colette. C-o-l-e-t-t-e. A fine woman. A fine person.
We will show you how he got a choice residency because of his work at Northwestern.
We will show you how he volunteered for the Military. How he volunteered for the Green Beret. How he was proud.
We will bring to their home the two children, Kim and Kristen.
We will bring them to Fayetteville, to Fort Bragg.
We will produce testimony that Dr. MacDonald -- he was a doctor then -- was working two extra jobs; "moonlighting" to make enough money so that his family could live, not die.
We will show you how they had bought a pony for the children. We will show you how they had bought a few other things for the home because they were now getting on their feet, ready to live, not die.
We will show you how they eagerly anticipated the arrival of a new little one. Colette was five months pregnant. And then, we will show you how it ended. How the whole thing in a matter of minutes ended -- ashes.
Yes, we will show you how Colette went out. How she went out for a class. How Jeff -- as we will call him in this trial -- stayed home with the children.
We will show you how he played with the children just like you would have done; how presently the time came to put them to bed -- and he did.
We will show you how Colette returned home; how they were happy together; how there was peace and joy.
We will show you at that moment that there was nothing insane about Dr. MacDonald; that he was not on drugs; that he was not intoxicated, and she wasn't either.
We will show you then how Dr. MacDonald, or Jeff, happened to sleep on the couch, and we contend that the evidence will show that the little one, Kris, had a habit of getting up from her bed in the night and coming to sleep with mommy and daddy -- that has happened in your home -- and how every now and then she would wet the bed. That has happened in everybody's home.
We will produce evidence which will show you that after the little one went to sleep she did get up and got in bed with her mother, while Jeff was up watching television and reading; and that when he got ready to go to bed, finding a little girl in his place, on his warm side of the bed and a puddle there, he simply picked the child up, returned the child to her bed, and faced these options: sleep on a puddle of water, wake up my wife and change the sheet, or just leave it the way the Lord flung it and go to sleep on the couch.
We will show you he selected the last option, and then we will bring you through his words from the witness stand, face-to-face with the people who did this. You will see them through his words. And you will hear the words of his child, the words he can never forget, obviously. We will show you that he heard and will hear for the rest of his life, "Daddy, daddy, daddy."
And then, as if in slow motion, things started to happen, and they have happened and happened and happened for all of the years since 1970.
We will show you a man who has tried to forget somehow. We will show you a man and will produce evidence that he is an outstanding physican now -- right now -- that he is recognized in his field all across the country: Emergency Room medicine. We will produce evidence showing that he has published a book; that he is the best. And yet, we will show you how he has been lonely.
Ladies and gentlemen, I heard a poem one time. I heard it more than once really. And it says something like this: "...I slept and dreamed that life is beautiful; I woke and learned that life is duty."
We thank you for accepting the duty and responsibility in this case. We will do our best to perform our duty. We will produce all of the evidence that we can find, wherever it is. And let me say this: for example, the Government says through Mr. Blackburn that they did a lot of interviewing. We will produce a neighbor, a man who lived across the street from these people, who was never interviewed.
And ladies and gentlemen, he will say to you that on the night this occurred, late at night after midnight, he heard voices. And we will present evidence that will show to you that he saw three people, one of which was a woman with long blonde hair, carrying candles, walking toward the MacDonald home.
We will present other evidence for you. We hope that you will take seriously all the things the Judge said to you, all the questions that he asked you, all of the great principles that apply in this case. We hope you will apply them all.
We trust you. We trust that now you are presuming the Defendant to be innocent, and we are ready now for our days in Court. Thank you very much.MR. BLACKBURN: Your Honor, may Counsel approach the Bench?
THE COURT: Yes.
B E N C H C O N F E R E N C E
MR. BLACKBURN: We didn't object at the point on the reasonable hypothesis, because we did not want to interrupt Wade -- I mean the circumstantial. We would like a clarifying ruling on that or some instruction to the jury.
THE COURT: Well, of course, Wade misstated the law. I am sure it was not intentionally. It may be the law in North Carolina. It is not the law in the Fourth Circuit.
MR. BLACKBURN: We just did not want to interrupt him.
MR. SMITH: At any time Your Honor wants to correct it, I have no objection to it.
MR. BLACKBURN: We were concerned about the every other hypothesis.
MR. MURTAGH: Mr. Smith in his opening statement said that we will prove that there was nothing insane about Jeff; that he was not under the influence of drugs or alcohol. And I think it is not an issue of insanity or sanity. He is presumed sane, and the Government does not have to show -- other than the premeditation or malice aforethought --
THE COURT: I didn't read his statement to the jury as requiring any proof one way or the other.
MR. SMITH: No indeed.
MR. MURTAGH: But the word "insanity" is before the jury now, Judge, and also the Motion on Sadoff is still before the Court. We think it requires some type --
THE COURT: (Interposing) Do you have any Motion to make and what is it?
MR. BLACKBURN: We would Move first of all, Your Honor, that clarifying instructions be given on the circumstantial evidence at this time.
MR. SMITH: I would hope that Your Honor would do that when you instruct the jury.
MR. MURTAGH: Your Honor, we would also Move that the Court rule on the Motion in limine on mentioning insanity. It has already happened in the opening statement, and I fear it is going to permeate the trial.
MR. SMITH: It is not going to permeate the trial.
THE COURT: I understand his position to be that he will show the man is sane, and there is no question of his sanity.
MR. MURTAGH: Yes, Your Honor. But that puts the burden on the Government to show that someone would have to be insane in order to commit this type of crime. That is not our burden.
THE COURT: I don't follow that.
MR. BLACKBURN: We would prefer an instruction now rather than later, since the injury occurred now, on the circumstantial evidence.
THE COURT: Well, had you objected timely I would have done it then. I will now handle it in a different fashion.
(Bench conference terminated.)
THE COURT: Members of the jury, an objection has been interposed by the Government to a particular statement or contention of the law as to what the law was concerning or the degree of proof. I simply say at this time that while Counsel are at liberty to argue in good faith what they contend the law is, that it will be the duty of the jury to take the law from the Court. And to the extent, if any, which you find the Court's statement of the law to be at variance with what any lawyer on either side of the case has said the law in his opinion was, then you will be bound to take the law from the Court.
The matters which were the subject of the objection will be covered in the final instructions of the Court to the jury. At that time you will be given the principle of law on the basis of which you will be governed and make your decision in the case.
At this time, before beginning the evidence in the case, we will take our morning recess, members of the jury. As I have stated to you individually as you were selected, and now I say to you collectively, while we are in recess at this or any other recess of the Court, you are not permitted to discuss the case among yourselves or with others or to allow, certainly, anything to be brought to your attention concerning the case.
And of course, rigidly to be enforced will be the instructions against reading, looking at or listening to anything about the case which may appear in any of the news media.
Finally, you must at all times keep a fair and open mind about the case. As I perhaps said to you -- I frequently do and you will hear it again -- in the very nature of things, both sides cannot talk at once. Consequently, it is unfair to draw conclusions on the basis of what one side is presently saying or presenting without giving equal time, so to speak, and an equal opportunity to the other side to reach conclusions and to argue their contentions.
During the course of the trial, I will not repeat all these instructions verbatim, but just may from time to time say, "Remember the instructions of the Court." You will know to what I am referring. And of course, they will be in effect at all times during the course of the trial.
I will let you go to the jury room. I don't know whether anybody has made any coffee for you this morning or not. But you will find the necessary equipment and a starter bag of coffee for you. You will also find a little refrigerator in which those of you who care to bring soft drinks or other items that need to be kept cold, you may keep those in there.
We will be reconvening at 11:25 for purposes of proceeding with the evidence in the case. For your further information as to our schedule, we normally recess at 1:00 o'clock for lunch and reconvene at 2:30.
In the afternoon we take a somewhat shorter recess than the one we take in mid-morning, such as the one we are about to enter. This will be our normal schedule, except that later in the day I will give you a somewhat altered schedule which we might follow on Fridays or a Friday if you see fit to adopt it. That would mean a little earlier convening in the morning and a little earlier recess on Friday afternoon.
Take a recess until 11:25, please.
(The proceeding was recessed at 11:02 a.m., to reconvene at 11:25 a.m., this same day.)