For decades, the Fourth Circuit Court of Appeals was considered one of the most conservative federal appellate courts in the country. In 1999, The New York Times reported that the court “has in recent years evolved into the kind of bench that staunch conservatives had hoped to create at the Supreme Court but never quite achieved.”
In 2006 and 2007, however, three judges who had been nominated by Republican presidents left the court through death or retirement, and the Democratic-controlled Senate refused to approve replacements nominated by President George W. Bush.
While the murder of a woman and her children by the husband and father would not seem the sort of case that would encourage judgment along partisan political lines, there was no denying that conservative judges tended toward a more restrictive view of prisoners’ rights than did liberals.
By 2009 the Fourth Circuit was a court in flux, composed of six Republicans and five Democrats (with four vacancies due to congressional inaction), more open than it would have been a decade earlier to generous interpretation of the language of Section 2255, and in particular of the words “the evidence as a whole.” The Fourth Circuit granted MacDonald a certificate of appealability in May 2009, authorizing him to proceed with his fifth habeas corpus petition.
The Fourth Circuit panel heard oral arguments in March 2010. More than a year passed with no decision. On March 25, 2011, one of the three judges died. Less than a month later, the two remaining panel members handed down their decision. They overturned Fox’s 2008 denial of MacDonald’s motions, decreeing that he had taken an “overly restrictive view of what constitutes the ‘evidence as a whole.’ ” The appellate judges said Fox had been wrong to apply 28 U.S.C. Section 2244(b)(2)(B)(ii) to MacDonald’s new habeas claim. They said he should have used Section 2255(h)(1).
Believe it or not, this sort of judicial hairsplitting is what is keeping the MacDonald case alive forty-two years after he was first charged with the murders and thirty-three years after his conviction.
(If you want to try to decipher it, the full twenty-three-page opinion can be found via PACER at U.S. v. MacDonald 641 F.3d 596 C.A. 4 (N.C.), 2011.)
What a legal burlesque the MacDonald case has become. What a pity that the lives of Colette, Kimberly, and Kristen MacDonald—real lives that ended in a blur of terror, pain, shock, and blood—should be reduced to artifacts used in games of courtroom ping-pong.
The Fourth Circuit did not explicitly order Judge Fox to hold an evidentiary hearing that would permit discussion of anything MacDonald wanted to claim was part of the “evidence as a whole,” but only someone far more naive than the now eighty-one-year-old district judge could possibly have missed the signal. After the usual delays, Fox finally convened the hearing on September 17, 2012. In advance, the media was all atwitter—and a-Twitter.
“Judge to Consider New Evidence,” said ABC News. It was, the network said, “evidence that may prove [MacDonald’s] innocence.”
The Associated Press wrote, “The case now hinges on something that wasn’t available when he was first put on trial: DNA evidence.”
How sexy it sounded. What a story it would be if “new DNA evidence” proved Jeffrey MacDonald innocent!
In the extensive media coverage that preceded the hearing, I couldn’t find a single story that pointed out that there was no “new DNA evidence.” There was only the 2006 report from the Armed Forces Institute of Pathology that said three hairs found in laboratory vials associated with the crime scene or the autopsies could not be matched to either the MacDonald family or the two individuals most often cited as having been among the mythical intruders. The six-year-old report had been referenced repeatedly in court filings and in no way supported MacDonald’s claims.
Not a single reporter bothered to check. Instead, as with one giant mouth, the mainstream media swallowed whole the fish story being peddled by MacDonald’s lawyers and advocates.
Once the hearing began, however, MacDonald’s team had to play its cards. As it turned out, they were holding only jokers.