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Jeffrey MacDonald's lawyers cite criticism of investigator in seeking new trial

Lawyers for Jeffrey MacDonald are again seeking a new trial, citing new evidence that discredits a government witness.

In a motion filed last Thursday, MacDonald's lawyers argue that a judgment filed last month by a U.S. District Court judge should be amended based on a Department of Justice report released that same month.

They also argue that MacDonald should be able to appeal that judgment to a higher court.

MacDonald, 70, is serving three life sentences for the February 1970 stabbing deaths of his pregnant wife, Colette, and daughters Kimberley, 5, and Kristen, 2, in their home on Fort Bragg.

A former Army captain who served as a doctor for a Special Forces unit, MacDonald was convicted following a seven-week trial in 1979 but has long contended that he and his family were the victims of a home invasion. He said he woke to find three men and a woman in his home and fought with the trio - described as "drug-crazed hippies" - before being knocked unconscious and stabbed once.

Investigators said MacDonald killed his family and made up that story.

Last month, Senior U.S. District Court Judge James C. Fox ruled that MacDonald's lawyers failed to establish that he shouldn't have been found guilty of the murder of his wife and two daughters.

Fox also said MacDonald's lawyers failed to establish the merits of new evidence presented at a seven-day hearing in September 2012.

As part of his 169-page order, Fox also denied a certificate of appealability, leaving the future of the case in question.

In the recent motion, MacDonald's lawyers said the DOJ report calls into question a former FBI investigator who worked on the MacDonald case.

That former investigator, Michael Malone, testified that synthetic hairs found in the MacDonald home most likely belonged to a doll.

MacDonald's lawyers had argued the hairs bolstered MacDonald's account of the attack that killed his family - that the hairs belonged to a wig worn by one of the attackers.

MacDonald's lawyers said they were unaware the federal government was investigating Malone.

"The Department of Justice and FBI spent the last several years reviewing Michael Malone's work-product and trial testimony to determine whether Malone provided invalid, unreliable, or false hair identification testimony," according to the motion. "The DOJ criticized Malone's testimony because he failed to perform his tests in a scientifically acceptable manner. The DOJ also claimed that Malone's hair statistics overstated the hair evidence's significance."

The Office of Inspector General of the DOJ released its report on the FBI Laboratory in July. It devotes an entire chapter to Malone, who "repeatedly created scientifically unsupportable lab reports and provided false, misleading, or inaccurate testimony at criminal trials."

MacDonald's lawyers said the DOJ report was not considered by the court in making its decision.

"It is startling in its depth as to the knowledge within the FBI and the government regarding Malone's unprofessional conduct, along with the false evidence and testimony he produced," the lawyers argue in the motion. "This information should have been disclosed to the defense. Setting aside the constitutional implications and due process concerns from this non-disclosure, this analysis of Malone by the Office of the Inspector General is highly disturbing. It calls into question any conviction obtained, in part, by the analysis and or testimony by Malone. Indeed, the report itself noted Malone gained fame through his work in helping to secure Dr. MacDonald's conviction."

The DOJ report, titled "An Assessment of the 1996 Department of Justice Task Force Review of the FBI Laboratory," said Malone's conduct was "particularly problematic."

"We concluded that the Department should have directed the Task Force to review all cases involving Michael Malone, the FBI Lab examiner whose misconduct was identified in the OIG's 1997 report and who was known by the Task Force as early as 1999 to be consistently problematic," officials said.

The report said Malone's "faulty analysis and scientifically unsupportable testimony" helped convict a man who was exonerated 27 years later and led to the reversal of at least five other convictions.

Malone retired from the FBI in 1999, but later performed background investigations for the bureau as a contract employee.

The FBI stopped associating with Malone in June, according to the DOJ report.

Colette MacDonald had 37 stab wounds - some from an ice pick, some from a knife - and was beaten. She had two broken arms and a fractured skull.

His older daughter had a fractured skull and eight to 10 stab wounds. His younger daughter had 27 stab wounds.

Since his conviction, MacDonald has made repeated attempts at a new trial or to have his convictions overturned.

The case has long captured the nation's attention. It was the subject of the best-selling 1983 true crime book "Fatal Vision," which was turned into a television miniseries of the same name.

Military editor Drew Brooks can be reached at brooksd@fayobserver.com or 486-3567.

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©2014 The Fayetteville Observer (Fayetteville, N.C.)

Visit The Fayetteville Observer (Fayetteville, N.C.) at www.fayobserver.com

Distributed by MCT Information Services

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