Advanced Criminal Law :: Case Studies
The Jeffrey MacDonald Case
Professor James R. Elkins College of Law || West Virginia University [Spring][2007]


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The Course

Background: In the spring, 2006, I taught a course called Advanced Criminal Law at the College of Law, West Virginia University. The focus of that course was the jury instructions used in homicide cases in West Virginia. The course was taught as a "workshop." Students in the course worked in teams, researched the legal doctrines reflected in West Virginia's current "proposed" jury instructions and presented proposals for revisions. A substantial part of the course was based on class presentations by students.

In "Advanced Criminal Law" as it is being offered this semester, I want to use the structure adopted in the homicide jury instructions version of the course, and focus on a single case, the Jeffrey MacDonald murder case. MacDonald was, ultimately, convicted of killing his wife and two children in the morning hours of February 17, 1970. MacDonald was, at the time of the death of his wife and children, a captain in the Army, in the Special Forces, what was at the time called the "Green Berets." MacDonald, who was convicted, by a jury in a Federal District Court in North Carolina, 1979, is presently incarcerated at the Federal Correctional Institute, at Cumberland, Maryland. MacDonald has continued to assert his innocence; he contends that he did not kill his family, and has long sought a new trial.

The MacDonald case has received substantial media attention. First, by way of Joseph McGinniss's book, Fatal Vision (G.P. Putnam's Sons, 1983)(maintaining that MacDonald was guilty), a made-for TV movie based on Fatal Vision, MacDonald's civil lawsuit against McGinniss based on his publication of Fatal Vision, Janet Malcolm's book--The Journalist and the Murderer (Alfred A. Knopf, 1999)--an account of the MacDonald-McGinniss law suit, and Jerry Allen Potter & Fred Bost, Fatal Vision: Reinvestigating the MacDonald Murders (W.W. Norton & Company, 1995)(maintaining that, based on various legal errors, that MacDonald deserves a new trial).

Purpose of the Course: The purpose of the course is to fully explore the Jeffrey MacDonald murder case. In law school, we more typically, in criminal law, read appellate court opinions which review a trial court (and jury determination) for legal errors (e.g., insufficiency of the evidence to support the conviction; error in granting or failure to grant requested jury instructions, and errors in the instructions actually given; trail court errors in response to various pre-trial, trial, and post-trial issues).

In this course, we want to begin, not with a conviction, to study possible legal errors, but with the actual testimony in the case, the development of the case (by both prosecution and defense), and then (and only then), consider the judicial rulings and opinions issued during the case. Basically, in this course, we're going to look at a criminal case from the "bottom-up" rather than in the more typical "top-down" approach.

Method: The basic method used in teaching this course is best described as a "workshop." (Another possible way to describe the course is that we will, in some fashion, mimic what might take place in a prosecutor's office or in defense lawyer's office.) By workshop, I mean that the burden of the course will be upon students to read the testimony, first at the Army Article 32 hearing--which serves in the military justice system as something akin to a grand jury, and then at the trial. We will, as we explore the testimony, attempt to evaulate its strengths and weakness (from both a prosecution and defense perspective).

In this exploration of the pretrial and trial testimony, we can expect various problems to arise, giving an opportunity for assigned teams to explore and attempt to resolve the problems.

We will proceed then, first by reading the Army Article 32 hearing testimony, consider the Army's decision not to charge MacDonald with murder, and then, consider the legal and constitutional issues raised that permitted MacDonald to be indicted by a North Carolina grand jury for murder, some 5 years after the killings took place.

We will then read the grand jury testimony that resulted in MacDonald's being charged with murder, and the trial transcript that resulted in his conviction.

Whether we have will have time (spirit and will) to pursue MacDonald's case beyond his conviction, to consider his post-trial efforts to secure a new trialm is unknown. (I suspect we will not have time to do much, if anything, with the post-trial aspects of the case.)

Course Materials: For primarily legal documents we will rely upon Christina Masewicz's website, Jeffrey MacDonald Information Site (without resort to the motives and purposes espoused by Masewicz). [I should note that Christina Masewicz has become substantially involved in the Jeffrey MacDonald case. See e.g., Christina Masewicz, Scales of Justice: The Jeffrey MacDonald Story (AuthorHouse, 1994). Scales of Justice is not readily available and I have not made Masewicz's book a part of the course. I have a xeroxed copy of the book and you are welcome to review it.]

You are also being asked to read:

Joseph McGinnis, Fatal Vision (G.P. Putnam's Sons, 1983)

Jerry Allen Poetter & Fred Bost, Fatal Vision: Reinvestigating the MacDonald Murders (W.W. Norton & Company, 1995)

Janet Malcolm, The Journalist and the Murderer (Alfred A. Knopf, 1999)

Supplemental Reading: If, you do not exhaust yourself on the MacDonald case with assigned readings, I highly recommend a book by a prosecutor in the case, James Blackburn. The book is titled, Flame-out: From Prosecuting Jeffrey MacDonald to Serving Time to Serving Tables (Leslie Books, 2000). While the book is well-worth reading, and Blackburn's commentary on the MacDonald case is interesting, the book is more about Blackburn than it is the MacDonald case. Even so, you should try to read the book!

Course Evaluation: Your grade for the course will be based on two aspects of your work in the course: (1) your research for and presentation of the research by way of in-class presentations, and (2) a portolio of writings about the MacDonald case (and your organization and presentation of the writings in the form of "briefing notebooks").

Since the course depends upon class participation, any unexcused absences will be figured in your final grade (any appreciable number of absences may result in your being asked to withdraw from the course).

Colloborative Work: I think the class will work better (and various pedagogical objectives may be served) if you work in teams. Consequently, you may form a team (of two persons) (or three persons). If you elect to form and work in a team, your work for the course will be done as a member of the team/work group and submitted for a single evaluation (and grade). Consequently, the grade for the course for members of a team/group will be the same for each member (assuming that no change in the grade is warranted by unexcused or excessive absences).

If, for any reason, a member of a team/work group does not, or can not, for any reason, share fully in the work of the team/workgroup, then it is the responsibility of the other team/group members to report the problem to the instructor on a timely basis. The inability, failure, or unwillingness to fully participate in the work group, if confirmed by the instructor, may result in an incomplete for the course. I will not consider a grade for any member of a team/group which differs based on the nature of the work or failure to do the work. This means, that if you do not do the work your team/work group has elected to do, and I am informed about the problem (and confirm that it is indeed a problem), you will: 1) be asked to withdraw from the course, 2) be given an incomplete as grade for the course, or 3) a failing grade for the course, as appropriate.

All work teams should be formed and ready to begin work by the end of course classes (January 15th).

If you elect to participate in a work group and wish to drop out of that group and work on an individual basis, you may do so by informing the members of the group and the instructor of your decision by January 29th of your decision.

Update (2010): The New York Times, on March 24, 2010, reported that MacDonald, now serving three life terms, requests a new trial based on new DNA evidence and affidavits from witnesses who say they heard others confess to the crimes. The New York Times goes on to report: "His lawyers, who have been receiving legal assistance from the Innocence Project, said Tuesday that DNA showed that he was not the source of hairs found at the scene. Prosecutors argue that the DNA should not be admitted." ABC News reports that the 4th Circuit hearing was held on March 23rd. [ABC News] [Amicus Brief--Innocence Project] [For legal documents leading up to the March 23rd 4th Circuit hearing, see: The MacDonald Case]

Kathryn MacDonald Leads the Fight to Free Jeffrey MacDonald

[Jeffrey MacDonald--Wikipedia] [The MacDonald Case]

Contact Professor Elkins by Email :: Website posted: January 6, 2006