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RICHMOND — Lawyers for a former Army doctor convicted of murdering his pregnant wife and two daughters argued Tuesday that new DNA evidence and a witness statement show he's innocent of the grisly crime 40 years ago that spawned the book and television miniseries "Fatal Vision."
Jeffrey MacDonald's attorneys told the federal appeals court that the evidence, including a federal marshal's claim that a prosecutor in North Carolina threatened a key witness, support his assertion that four drug-crazed hippies killed his family.
Federal prosecutors argued the DNA test results cannot be considered by the appeals court at this time, that the threat claim lacks merit and that MacDonald is rehashing a lot of old evidence from previous unsuccessful appeals.
"At some point the litigation in this case must come to an end," Justice Department lawyer John De Pue told a three-judge panel of the 4th U.S. Circuit Court of Appeals.
The panel is expected to decide within a few weeks whether MacDonald should get a new trial.
MacDonald is serving three life terms at the federal penitentiary in Cumberland, Md., for the 1970 slayings of his wife Colette and daughters Kimberley, 5, and Kristen, 2, at their Fort Bragg, N.C., home. The killings shocked a nation still reeling from the Charles Manson murders six months earlier.
In 2006, the appeals court ruled that MacDonald could seek a new trial based on retired Deputy U.S. Marshal Jim Britt's statement that he heard prosecutor James Blackburn threaten witness Helena Stoeckley. MacDonald's attorney, Joe Zeszotarski, said Stoeckley was prepared to testify she was in the MacDonald home the night of the murders until Blackburn threatened to charge her with the slayings. She later testified she couldn't remember where she was that night.
Britt died in 2008, however, and Senior U.S. District Judge James C. Fox rejected MacDonald's bid for a new trial two weeks later. De Pue said it would be improper to allow Britt's "hearsay evidence" now, but Zeszotarski said the law requires the court to consider all the evidence at its disposal.
The other key issue is DNA test results from a hair found under Kristen's fingernail. The hair did not match MacDonald or anyone in his family.
"That's vitally important evidence of innocence in this case," Zeszotarski said.
Federal prosecutors contend MacDonald is overstating the impact of the DNA tests, which also did not implicate Stoeckley or her boyfriend Greg Mitchell, who also had told people conflicting stories about whether he was involved in the beating and stabbing deaths. Stoeckley and Mitchell are both dead.
De Pue also said the DNA test results came after the appeal was authorized and therefore were not among the items the court said could be considered. He said MacDonald would have to file a separate petition if he wants the DNA results considered.
The judges vigorously questioned the attorneys during the 45-minute hearing on whether the court must limit its inquiry or whether it can consider all the evidence, including the late-arriving DNA results.
"How do you determine what a fact-finder might do if you don't take a broad view of the evidence as a whole?" asked Judge Robert King.
Kathryn MacDonald, who married MacDonald after he had been in prison for more than two decades, and several friends attended the hearing.
"From what I saw today, this court is saying let's look at the totality of the evidence," MacDonald said after the hearing. "I am greatly encouraged."
