Full opinion text
ORDER JAMES C. FOX, Senior District Judge. This matter is back before the court following the opinion of the Fourth Circuit Court of Appeals, United States v. MacDonald (MacDonald XI), 641 F.3d 596 (4th Cir.2011), vacating this court’s decision to deny Movant Jeffrey MacDonald’s Motion to Vacate, Set Aside or Correct pursuant to 28 U.S.C. § 2255 [DE-111] and remanding for further proceedings. After conducting an evidentiary hearing, receiving voluminous supplementary briefing, and examining the evidence as a whole, the court finds that MacDonald has failed to establish, by clear and convincing evidence, that no reasonable factfinder would have found him guilty of the murder of his wife and two daughters. Alternatively, the court finds that MacDonald has failed to adequately establish the merits of any of his claims. Accordingly, for the reasons more fully set forth below, MacDonald’s Motion to Vacate [DE-111] is DENIED. PROCEDURAL BACKGROUND Although this order presumes some familiarity with this long-running case, the court nevertheless finds it necessary to review some of the procedural background. In the early morning hours of February 17, 1970, Jeffrey MacDonald’s pregnant wife, Colette, and his two young daughters, Kristen and Kimberly, were murdered in their home. MacDonald, a physician and Captain in the Army Medical Corps, sustained non-life threatening injuries. From that date, MacDonald has consistently maintained that his Fort Bragg apartment was invaded by a band of drug-crazed hippies, including a woman with long blonde hair who wore a floppy hat and boots. Law enforcement initially accepted MacDonald’s story. However, as the investigation continued, physical evidence was discovered which cast .doubt on MacDonald’s version. In fact, investigators came to believe that MacDonald had killed his wife and daughters and staged the crime scene to cover up their murders. The Army eventually . charged MacDonald with the murders of his family. The Army’s charges were ultimately dismissed on October 23, 1970, following a formal pre-court martial investigation and hearings conducted pursuant to Rule 32 of the Uniform Code of Military Justice. The investigating officer recommended that civil authorities investigate Helena Stoeckley as a possible suspect. Stoeckley was a Fayetteville, North Carolina, resident who was known to be a heavy drug user, and known to wear clothing similar to that described by MacDonald. Stoeck-ley had also, on numerous occasions, given conflicting statements as to whether she participated in the murders of MacDonald’s family. Just as the statute of limitations was about to expire, MacDonald was indicted by a grand jury for the Eastern District of North Carolina for the murders of his wife and his two daughters. The seven-week trial of MacDonald’s case was held during July and August of 1979. The Honorable Franklin T. Dupree, Jr., United States District Judge, presided over the trial. The Government’s case against MacDonald was presented by James L. Blackburn, Assistant United States Attorney for the Eastern District of North Carolina, and Brian Murtagh, an attorney with the Department of Justice. MacDonald’s defense team included Wade M. Smith of Raleigh, North Carolina, and Bernard Segal of the San Francisco, California bar. The trial included testimony from both MacDonald and Stoeckley, the latter of which is detailed more fully later in this order. Stoeckley’s testimony at trial was not what MacDonald or his defense team wanted or expected to hear. In short, she denied any involvement in the murders, and could not recall anything from shortly before midnight on February 16,1970 until approximately 4:30 a.m. on February 17th due to the large amounts of drugs she had ingested. At the conclusion of the 29-day trial, it took the jury only six hours of deliberation to find MacDonald guilty of second degree murder of his wife and his daughter Kimberly and first-degree murder of his daughter Kristen. MacDonald was sentenced to three consecutive life sentences. Thereafter, MacDonald filed a direct appeal to the Fourth Circuit Court of Appeals raising a number of issues. See United States v. MacDonald, 632 F.2d 258 (4th Cir.1980). A divided panel reversed MacDonald’s convictions, on the basis that his Sixth Amendment right to a speedy trial had been violated. Id. at 267. The Supreme Court, however, reversed the Fourth Circuit and remanded for further proceedings. See United States v. MacDonald, 456 U.S. 1, 9-11, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). On remand, the Fourth Circuit assessed MacDonald’s remaining appellate arguments, found no error, and affirmed his convictions. United States v. MacDonald (MacDonald II), 688 F.2d 224 (4th Cir.1982). In the following years, MacDonald filed several motions in this court for post-conviction relief. The first two of these were denied. United States v. MacDonald (MacDonald III), 640 F.Supp. 286 (E.D.N.C.1985) (denying motions for a new trial and for a writ of habeas corpus), ajfd (MacDonald IV), 779 F.2d 962 (4th Cir.1985) (affirming denial of motions for recusal, new trial, and habeas relief), cert. denied, 479 U.S. 813, 107 S.Ct. 63, 93 L.Ed.2d 22 (1986); United States v. MacDonald (MacDonald V), 778 F.Supp. 1342 (E.D.N.C.1991) (denying MacDonald’s second motion for habeas relief), ajfd (MacDonald VI), 966 F.2d 854 (4th Cir.1992), cert, denied, 506 U.S. 1002, 113 S.Ct. 606,121 L.Ed.2d 542 (1992). In 1997, MacDonald filed a motion, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, to reopen the proceedings on his second post-conviction motion which was filed in 1990. MacDonald alleged fraud by the Government concerning the 1990 motion, and sought an order permitting new DNA testing of certain evidence that had been collected from the crime scene. This court denied the motion insofar as it sought to reopen the 1990 motion, and transferred the remaining matters to the Fourth Circuit Court of Appeals for consideration as a petition for leave to file a successive § 2255 motion. See United States v. MacDonald (MacDonald VII), 979 F.Supp. 1057, 1069 (E.D.N.C.1997). There were two appeals to the Fourth Circuit" from this court’s 1997 decision. In the first appeal, the Fourth Circuit denied MacDonald authorization to file a successive § 2255 motion, but remanded the matter to this court to oversee mitochondrial DNA testing. See In re MacDonald (MacDonald VII), No. 97-713 (4th Cir. Oct. 17, 1997) (unpublished). With regard to the second appeal, the Fourth Circuit affirmed this court’s denial of MacDonald’s Rule 60(b) motion to reopen the proceedings. See United States v. MacDonald (MacDonald IX), No. 97-7297, 161 F.3d 4 (4th Cir. Sept. 8, 1998) (unpublished) (per curiam). On remand, this court entered orders setting the parameters for DNA testing. It took nine years for the testing protocol to be agreed upon by the parties, the tests to be conducted, and the results submitted. The DNA report from the Department of Defense Armed Forces Institute of Pathology was issued on March 10, 2006. Just before the DNA report was issued, MacDonald sought and received a pre-fil-ing authorization from the Fourth Circuit, pursuant to 28 U.S.C. § 2244(b) and § 2255, permitting him to submit his proposed successive § 2255 motion to determine whether he meets the requirements for a successive § 2255 motion. MacDonald promptly filed his proposed successive § 2255 motion [DE-111] in this court on January 17, 2006. This proposed successive § 2255 motion asserted what has become known as the “Britt claim.” Specifically, MacDonald sought to have his convictions vacated and set aside on the grounds of “newly discovered evidence,” the 2005 affidavit of former Deputy United States Marshal Jim Britt, the presentation of which MacDonald asserts would result in his acquittal. In brief summary, Britt averred that Stoeckley confessed to him in 1979 that she had been present in the MacDonald home on the night of the murders. Britt also declared that he was the only witness to an exchange between AUSA Blackburn and Stoeckley when, after Stoeckley made the same statement to Blackburn that she made to Britt, Blackburn threatened to indict her for first degree murder if she so testified. In this proposed motion, MacDonald contends that Britt’s affidavit proves AUSA Blackburn’s threat of prosecution intimidated Stoeckley into changing her intended trial testimony. MacDonald also asserts that Blackburn lied to Judge Dupree at trial the following day by representing that Stoeckley told the Government she had not been involved in the MacDonald murders, and could not remember where she had been on the night the crimes took place. MacDonald contends that Britt’s withholding this evidence for almost 30 years must be attributed to the Government, and that its suppression of the facts revealed in the affidavit constitutes prosecutorial misconduct requiring that his conviction be vacated and set aside. In addition to the Britt affidavit, this motion incorporated numerous other exhibits, including the affidavits of three other witnesses swearing that Stoeckley’s boyfriend at the time of the -MacDonald murders, Greg Mitchell, had confessed to murdering the MacDonald family. On March 22, 2006, after the results of the DNA testing became available, MacDonald filed a “Motion to Add an Additional Predicate to His Previously Filed Motion Under 28 U.S.C. § 2255” [DE-122], or what has become known as the “DNA claim.” In this motion, MacDonald sought to add a new claim for relief to his proposed successive § 2255 motion, based on the newly discovered results of the mitochondrial DNA testing. Specifically, MacDonald sought to raise a freestanding actual innocence claim based on the DNA evidence, as well as having the court consider the DNA evidence as part of the “evidence as a whole” in assessing the Britt claim. Just one day after MacDonald filed his DNA motion, he filed a “Motion, Pursuant to Rule 7 of the Rules Governing Section 2255 Proceedings, to Expand the Record to Include the Itemized Authenticated Evidence Set Forth Herein” [DE-124]. MacDonald requested that the court expand the record to include specific authenticated evidence as part of the court’s duty to assess his § 2255 motion viewing the evidence “as a whole.” This itemized statement of evidence included, in part (1) evidence which was excluded at trial, which included the testimony of witnesses offered to impeach Stoeckley’s testimony; (2) evidence which was submitted (and rejected) in connection with prior post-conviction motions, including evidence of blond synthetic hair-like fibers found at the crime scene, and (3) more recently discovered evidence, e.g., the DNA test results and the three affidavits detailing the confessions allegedly made by Mitchell. Thereafter, the Government filed a motion to strike the affidavits concerning the alleged Mitchell confessions. Months later, MacDonald filed a “Motion to Supplement Applicant’s Statement of Itemized Material Evidence” [DE-144], Therein, he sought to add to the body of “evidence as a whole” by adding the March 31, 2007 affidavit of Helena Stoeckley’s mother, wherein she related that her daughter twice confessed to having been present during, and having participated in, the murders of MacDonald’s family members. In an order filed November 4, 2008 [DE-150], this court (1) allowed the government’s motion to strike the. Mitchell confession affidavits from the § 2255 motion; (2) denied the DNA motion; (3) denied MacDonald’s motions to expand the record with itemized evidence and to supplement that evidence, and (4) denied MacDonald leave to file the § 2255 motion, i.e., the Britt claim. See MacDonald X, 2008 WL 4809869. As to the Government’s motion to strike the Mitchell confession affidavits, the court agreed with the Government’s assertion that such evidence should be excluded because (1) MacDonald’s claims relating to Mitchell’s confessions previously were considered and rejected in the court’s earlier post-conviction orders, and (2) because the evidence was untimely. Id. at *11. With regard to the DNA claim motion, as well as MacDonald’s motion to supplement his proposed statement of itemized material evidence with the affidavit of the elder Stoeckley, this court viewed the motions as “seeking] to add discrete factual bases to” the § 2255 motion raising the Britt claim. Id. at *12. This court found that because “[t]he only grounds upon which MacDonald sought or obtained [pre-filing authorization] are contained in his [§ 2255 motion] concerning the Britt affidavit,” MacDonald’s “DNA and the elder Stoeckley affidavit motions are bootstrapping, ‘piggybacking’ attempts.” Id. Accordingly, this court concluded that the claims in the DNA and the elder Stoeckley affidavit motions were “untimely, successive and independent, and this court lacks subject matter jurisdiction over them.” Id. The court observed, however, that “MacDonald is free to seek authorization from the Fourth Circuit Court of Appeals to raise these grounds in yet another successive § 2255 motion.” Id. As to MacDonald’s motion to expand the record, the court observed that MacDonald’s apparent intent in the motion was “to assemble in one filing a relatively concise statement of his theory of the case,” specifically, the “ ‘Itemized Statement of Material Evidence’ [DE-126] consisting] of 48 numbered paragraphs of text setting forth his version of what is proved by the universe of evidence he has compiled to date — old and new, admitted and rejected.” Id. at *13. This court rejected MacDonald’s “suggestion that this court is required, under the circumstances presented by the case, to expand the record and to consider every manner of supplementary material he deems supportive of his position, regardless of its source or competence.” Id. Accordingly, the court denied the motion to expand the record. Finally, this court considered MacDonald’s proposed successive § 2255 motion concerning the Britt claim. In so doing, this court noted that “[a] movant must pass through two ‘gates’ before the merits of a successive § 2255 motion may be entertained in the district court.” Id. at *15 (citing Bennett v. United States, 119 F.3d 468, 470 (7th Cir.1997)). This court found that MacDonald had passed through the first gate — as to the Britt claim only— by having obtained pre-filing authorization from the Fourth Circuit Court of Appeals. Id. As to the second gate, this court observed that its role is to “examin[e] each claim of the proposed successive application without reaching the merits, and dismiss[] those that fail to satisfy the ‘requirements for the filing of such a motion’ under 28 U.S.C. § 2244(b)(4) or § 2255.” Id. (citing Rule 4(b), Rules Governing § 2255 Proceedings). This examination is required to be thorough. Id. In conducting this examination, this court determined that the applicable standard was that found in 28 U.S.C. § 2244(b)(2)(B). Id. Under § 2244(b)(2)(B), the movant must opens two “locks” to pass through the second gate. Specifically, the movant must show (1) that “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence,” § 2244(b)(2)(B)®, and (2) that “the facts of the underlying claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the [movant] guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii). As to the first lock, this court “affordfed] MacDonald the assumption that he exercised due diligence in discovering Britt’s assertions.” Id. at *17. This court found, however, that MacDonald could not open the “second lock” because he failed to demonstrate “that the Britt affidavit, taken as true and accurate on its face and viewed in light of the evidence as a whole, could establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found MacDonald guilty of the murder of his wife and daughters.” Id. at *28. Accordingly, MacDonald’s motion for leave to file a successive § 2255 petition was denied. On appeal, the Fourth Circuit vacated this court’s November 4, 2008, Order. See MacDonald XI, 641 F.3d 596. In its opinion, the Fourth Circuit first concluded that this court erred by applying the standard set forth in 28 U.S.C. § 2244(b)(2)(B)(ii), as opposed to § 2255(h)(1), to the Britt claim. Id. at 609. The Fourth Circuit explained that § 2244(b)(2) is applicable to state prisoners, while § 2255(h) sets forth the standard applicable to those prisoners who are in federal custody. Id. Even so, the Fourth Circuit determined that the error in identifying the applicable standard was “probably harmless” because of the similarities between the standard in § 2244(b)(2)(B)(ii) and that set forth in § 2255(h)(1). Id. at 610. The Fourth Circuit did conclude, however, that this court committed prejudicial error by taking an overly restrictive view of the “evidence as a whole,” and denying MacDonald’s motions to expand the record. According to the Fourth Circuit: “Simply put, the ‘evidence as a whole’ is exactly that: all the evidence put before the court at the time of its § 2244(b)(2)(B)(ii) or § 2255(h)(1) evaluation.” Id. Interpreting “the evidence as a whole” standard, the Fourth Circuit further explained: [A] court must make its § 2244(b)(2)(B)(ii) or § 2255(h)(1) determination — unbounded by the rules of admissibility that would govern at trial— based on all the evidence, including that alleged to have been illegally admitted [and that] tenably claimed to have been wrongly excluded or to have been available only after the trial. Or, to say it another way, the court must consider all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under [evidentiary rules]. Id. at 612 (internal quotations and citations omitted; alterations in original). Importantly, however, the Fourth Circuit qualified that although a district court must consider “all the evidence,” this does not mean that a movant “is to be accorded the benefit of every doubt.” Id. Rather, “the court must give due regard to the unreliability of the evidence ... and may have to make some credibility assessments.” Id. at 612-13 (internal quotations and citations omitted). Indeed, because such an evaluation “ ‘involves evidence the trial jury did not have before it,’ ” a district court must “ ‘assess how reasonable jurors would react to the overall, newly supplemented record.’ ” Id. at 613 (quoting House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006)). Because this court refused to consider an expanded record of the evidence, the Fourth Circuit remanded this matter “for a fresh analysis of whether the Britt claim satisfies the applicable standard of § 2255(h)(1).” Id. at 614. The Fourth Circuit instructed this court that any such assessment must include the DNA test results, the affidavit of the elder Stoeekley, evidence of blond synthetic hairlike fibers, and three affidavits describing confessions by Greg Mitchell, as well as “other evidence not mentioned, if it is part of the ‘evidence as whole’ properly put before the court.” Id. That is, the court must consider “the proffered evidence — with due regard for the likely credibility and the probable reliability thereof ... — to determine if it, in combination with the newly discovered Britt evidence, would be sufficient to establish that no reasonable juror would have found MacDonald guilty.” Id. (internal quotations and citations omitted). “If so, MacDonald would merely pass the procedural bar to having the Britt claim considered on its merits, and he would yet be obliged to prove the constitutional violation alleged in that claim before obtaining any § 2255 relief thereon.” Id. As to the issue of whether this court lacked jurisdiction over the freestanding DNA claim as a result of MacDonald’s failure to receive pre-filing authorization, the Fourth Circuit concluded that this court erred in deeming itself to be without jurisdiction. Id. at 615. Specifically, the Fourth Circuit explained that “because we granted 28 U.S.C. § 2244(b)(3) pre-filing authorization for the § 2255 motion raising the Britt claim, the district court possessed jurisdiction over the separate DNA claim insofar as MacDonald had timely and appropriately sought to add it to the pending § 2255 motion.” Id. at 615. Accordingly, where a prisoner seeks to assert additional claims after receiving a prefiling authorization from a circuit court of appeals, the district court must assess whether the proposed amendments to the § 2255 motion are proper under Federal Rule of Civil Procedure 15(a), which provides the standards for amending pleadings. Id. at 616. Because this court did not perform such an analysis, the Fourth Circuit vacated the denial of MacDonald’s DNA claim and remanded for further proceedings. Rather than instructing this court “to conduct a belated Rule 15(a) assessment of MacDonald’s request to add the DNA claim to the pending § 2255 motion, presumably to be followed by an evaluation of the DNA claim under the standard of § 2255(h)(1),” the Fourth Circuit found it to be “a more efficient use of judicial resources ... to simply grant MacDonald prefiling authorization for the DNA claim so that [this court] may proceed directly to the § 2255(h)(1) evaluation.” Id. After the Fourth Circuit issued its mandate in this case, the court scheduled the matter for hearing. One day prior to the scheduled hearing, MacDonald filed a Motion Pursuant to the Innocence Protection Act of 2004, 18 U.S.C. § 3600, for New Trial based on DNA Testing Results and Other Relief [DE-176]. In September 2012, after a series of briefing and motions by the parties, the undersigned conducted an evidentiary hearing. At the hearing, the Government was represented by First Assistant United States Attorney John S. Bruce, Assistant United States Attorney Leslie K. Cooley, and Special Assistant United States Attorney Brian M. Murtagh. MacDonald was represented by M. Gordon Widenhouse, Jr., from Chapel Hill, North Carolina and Keith Williams, from Greenville, North Carolina. The evidentiary hearing lasted seven days, and the court heard testimony from 19 witnesses and received numerous exhibits as evidence. The evidence received by the court is more fully detailed later in this order. At the conclusion of the hearing, and with the parties’ agreement, the court directed MacDonald to file his post-hearing memorandum within 60 days of the filing of the official transcript of the evidentiary hearing, and directed the Government to file its memorandum within 60 days thereafter [DE-305]. After extensions of time for both MacDonald and the Government, the parties’ post-hearing briefing is now complete. MacDonald has filed a Post-Hearing Memorandum [DE-336], Substitute Post-Hearing Memorandum [DE-343], and a Reply [DE-351]. The Government has filed a Post-Hearing Memorandum [DE-344] and a Sur-Reply [DE-352], This matter is now ripe for disposition. STANDARD OF REVIEW Title 28, United States Code Section 2255 provides, in pertinent part: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of. the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by the law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). A prisoner is limited, however, in the number of motions he may make under § 2255. Specifically, under 28 U.S.C. 2244, as amended by the Antiter-rorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-134, tit. VIII, 110 Stat. 1321,1321-66 (1996) (“AEDPA”): [n]o circuit or district judge shall be required to entertain an application for writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255. 28 U.S.C. § 2244(a); see also In re Vial, 115 F.3d 1192, 1194 (4th Cir.1997) (“Under the AEDPA, an individual may not file a second or successive ... § 2255 motion to vacate [his] sentence without first receiving permission to do so from the appropriate circuit court of appeals.”). Section 2255, in turn, provides in pertinent part as follows: A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain— (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C § 2255(h). As the court already has recounted, the Fourth Circuit has certified, pursuant to § 2244(b)(3), that MacDonald has made a prima facie showing that his Motion to Vacate [DE-111] meets the requirements for successive motion. The task on remand for this court, therefore, is to “conduct a more searching assessment of whether that motion satisfies” the standard set forth in § 2255(h). MacDonald XI, 641 F.3d at 604. The parties agree that only subsection (h)(1) is implicated in this case. Accordingly, the court must determine whether MacDonald has proffered newly discovered evidence, that if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found MacDonald guilty. 28 U.S.C. § 2255(h)(1); MacDonald, 641 F.3d at 614. In making this assessment, the court must consider “all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under the [evidentiary rules].” MacDonald XI, 641 F.3d at 612 (internal quotations and citations omitted; alterations in original). In so doing, “the court must give due regard to the unreliability of the evidence ... and may have to make some credibility assessments” and must “assess how reasonable jurors would react to the overall, newly supplemented record.” Id. at 612-13 (internal citations and quotations omitted). If the court determines that MacDonald has met his burden of proving, by clear and convincing evidence, that no reasonable juror would have found him guilty, then he will have cleared the procedural, gatekeeping bar set forth in § 2255(h), which will allow the court to consider his § 2255 claim(s) on the merits. EVIDENCE AS A WHOLE Any attempt to capture in writing every piece of the evidence as a whole that the undersigned has reviewed in this long-running case likely is a futile task. Nevertheless, the court will attempt, to the best of its ability, to highlight the portions of the evidence as a whole that are relied upon by the parties in making their arguments. A. The Crime Scene At approximately 3:45 a.m. on February 17, 1970, military police (“MP”) were summoned to the apartment of Jeffrey MacDonald, then a Captain in the U.S. Army Medical Corps assigned to the Special Forces at Ft. Bragg, North Carolina. Ttr. 1254. Once arriving at 544 Castle Drive, the MPs found that the front door of the MacDonald residence was locked, but they were able to gain entrance through the unlocked utility room door at the rear of the ground-level apartment. Ttr. 1258-59. Upon entering the master bedroom, which was immediately adjacent to the utility room, MP Sergeant Richard Tevere and Specialist-Four Kenneth Mica observed Jeffrey MacDonald, clad only in his pajama bottoms, lying on the shag rug adjacent to, and partially covering, his wife’s body. Ttr. 1260,1274,1281. Initially Specialist Mica thought MacDonald was dead Tr. 1406. After MacDonald regained consciousness, he repeatedly asked the MPs about his children, and in response to questions from the MPs, told them that intruders had come into his house; specifically, a band of four hippies, including a blond female wearing muddy boots and floppy hat and carrying a candle, two white males, and an African-American male wearing an Army field jacket with sergeant stripes. Ttr. 1270, 1323,1500-01. MacDonald reported that the female said, “Acid is groovy; kill the pigs.” Ttr. 1270, 1503-04. MacDonald reported that he had been stabbed, and that he may go into shock. The MPs began performing mouth-to-mouth resuscitation on him. Ttr. 1265. The MPs also walked through the apartment to check on MacDonald’s children. They found MacDonald’s daughter Kimberly, age 5/é, tucked into her bed in the front (or south) bedroom. Ttr. 1271,1327-28. Kristen, age 2$, was found in the back (or north) bedroom. Ttr. 1272-73; 1337-38-. One of the MPs, Mica, while responding to the crime scene, had observed a woman standing outside in the rain or mist on a street corner approximately one-half mile from the MacDonald residence. The woman had shoulder-length hair and was wearing a wide-brimmed hat. Had he not been responding to an emergency, Mica would have stopped to investigate this woman. Ttr. 1450-54. In any event, upon hearing the description MacDonald gave of his alleged assailants, Mica advised his supervisors of the .woman he had seen and suggested that a patrol be sent to find her. Ttr. 1598. About ten minutes after the MPs arrived at the MacDonald residence, an ambulance came and transported MacDonald to Womack Army Medical Center. Ttr. 1285. The investigation of the crime scene by Army Criminal Investigation Detachment (“CID”) agents and the MPs, after MacDonald was removed from the scene, showed the following. Colette’s chest was partially covered by MacDonald’s blue pajama top, and her abdomen was partially covered by a Hilton Hotel bath mat. Ttr. 1613-14. Inside the master bedroom, the investigators observed blood splatter on the walls and the ceiling in Type A blood, the same as Colette. GX 643, 645. The word “PIG” was written in blood, later determined to be Type A, on the headboard of the master bed. Ttr. 1268. The bottom sheet on the bed in the master bedroom had a large urine stain on the right-hand side, and was partially pulled up as if the bed were being changed. GXP 47. Lying adjacent to the doorway was a pile of bedding, consisting of the top sheet from the master bed and the bedspread inside the sheet, both bloodstained. Ttr. 1626-28, GXP 210-212. A pocket torn from MacDonald’s pajama top was found on the upturned side of the multi-colored throw rug adjacent to Colette’s left foot. Ttr. 1683. The pocket was stained in what was revealed to be Type A blood, and later testing indicated that the staining occurred after the pocket was torn off, because the corresponding area of the pajama top from which the pocket had been ripped was soaked in blood, but the inner surface of the pajama pocket was not stained with blood. Ttr. 3606-14. In Kristen’s bedroom, they found blood splatters on the wall above her bed, a large soaking stain on the top sheet adjacent to her right hip, and a stain on the bottom sheet. All these stains were Type A blood. A knotted and broken thick green acrylic yarn, identical to those typically used by Colette to tie her hair, and stained with Type 0 blood (like Kristen’s) was found on the throw rug. Ttr. 4611. A large pool of blood, also Type 0 blood, was found beside the bed. Additionally, MPs observed two bloody bare footprints on the door exiting Kristen’s room. These prints were later determined to be in Type A blood, like Colette’s, and a fingerprint examiner, Hilyard Medlin, identified them as having been made by MacDonald’s bare left foot. Ttr. 3106, 3675-76. CID agents also found dark threads both within and near Colette’s body outline, which prompted a search of the entire crime scene for similar threads and yarns. Ttr 1689-90. Later examination of MacDonald’s blue pajama top showed that it was made of polyester yarns, which were a blend of 65% polyester and 35% cotton fibers. The top was sewn at the seams with purple cotton “two ply Z twist” thread; and the white piping on the sleeve cuffs was sewn with a blue-black cotton thread. "Ttr. 4089-91, 4095. His pajama top had been torn from the yoke of the “V” neck through the midline of the front panel, as well as through the left inseam, left shoulder, and left sleeve seams to the white piping on the left cuff. Ttr. 4069-70. The search of the scene for threads yielded the following findings. In the master bedroom, seventy-nine pieces of material that could have originated from MacDonald’s pajama top were found: sixty-one sewing threads, seventeen blue polyester-cotton yarns from the fabric, and the bloodstained and torn pocket. Specifically, three purple sewing threads were found in the debris under Colette’s head. Ttr. 4100. Twelve purple cotton sewing threads and one blue-black two ply Z twist sewing thread were found in the debris from the rug in the vicinity of the left hand and arm of Colette. Ttr. 4099. Fifteen purple cotton sewing threads and three blue polyester warp yarns were found in the debris from the rug within the body outline of the trunk and legs of Colette. Ttr. 4100. Three purple cotton sewing threads and four blue polyester-cotton warp yarns were found on the underside of the upturned throw rug adjacent to Colette’s foot, and the torn, stained pocket was found on top of the throw rug. Ttr. 4099. Additionally, three matching purple cotton seam threads were found on the rug in the master bedroom, in the area near the largest bloodstain. Ttr. 4098. Located in the debris from the master bedroom rug, in the area of the north corner of the footboard of the master bed, were two matching purple cotton threads. Ttr. 4101. The debris from the bottom sheet on the master bed contained fifteen matching purple cotton threads and seven matching blue polyester cotton yarns. Ttr. 4101-02. The debris from the pillowcase on the master bed contained four matching purple cotton threads and two blue polyester cotton yarns. Ttr. 4103. In the debris located on the multicolored bedspread found inside the sheet in the pile of bedding on the floor of the master bedroom, were two matching purple cotton seam threads and one matching blue polyester cotton yarn. Ttr. 4103. On the master bedroom floor, by the east wall, was one purple cotton sewing thread. Ttr. 4101. In Kristen’s bedroom, on the green bedspread, investigators located one purple cotton thread and one blue polyester cotton yarn that could have come from MacDonald’s pajama top. Ttr. 4097. In Kimberly’s bedroom, nineteen pieces consistent with MacDonald’s pajama top— fourteen threads and five yarns — were found in or on Kimberly’s .bed. Specifically, in the debris from the bedding that had been pulled back, the search yielded two polyester cotton warp yarns and one purple cotton sewing thread, both matching MacDonald’s pajama top. Ttr. 4094. In the debris from the bottom sheet, investigators found two matching purple cotton sewing threads. Ttr. 4094-95. Two matching blue polyester-cotton yarns and ten matching purple cotton sewing threads were found on Kimberly’s purple bed cover. Ttr. 4095. Finally, in the debris removed from the north pillow of Kimberly’s bed, investigators collected one matching purple sewing thread and one blue polyester-cotton yarn. Ttr. 4093. Despite what investigators characterized as an “extensive search,” they found “nothing of evidentiary value” in the living room. Ttr. 1727-28. Specifically, no fibers, threads, bloodstains or splinters were found. Id. CID agent Shaw did find, however, a bunch of tangled blue fibers at the south side of the hallway at the entrance to the living room. Ttr. 2410-12, 2480-81. Once it started to get light outside, CID agents and MPs began to search the exterior perimeter of the quarters. Ttr. 2337-38. They did not find footprints, but they did find a piece of long wood lying on the ground with what looked like red stains, hair and fibers on it. Ttr. 2238-^10. Subsequently, the club would be determined to have bloodstains in both Colette’s (Type A) and Kimberly’s (Type AB) blood groups. The club also bore two purple cotton seam threads like those in MacDonald’s pajama top, numerous rayon fibers matching the composition of the throw rug in the master bedroom, and three matching purple cotton sewing threads. Ttr. 3534-37, 4097-98. CIDs also found an “Old Hickory” brand paring knife and an icepick under a large bush at the corner of the quarters. Ttr. 2342-43. Inside the master bedroom, a “Geneva Forge” paring knife with a bent blade was found. Ttr. 2364. No splinters were found in the living room where MacDonald said he was attacked; however, a large splinter, bearing Type A blood like Colette’s, was found in the area where Colette’s head had lain and where three matching purple cotton seam threads had also been found. Ttr. 1728, 3404-05, 3426-27, 3657-58, 4098. This same splinter was later fitted back into the club. Ttr. 3802-04. Another splinter, identical in composition to the club, was found in the debris from the rug where the trunk and legs of Colette had lain in the master bedroom. Ttr. 3806. Additionally, splinters identical in composition to the club were found in the debris removed from the bottom sheet of Kristen’s bed, although there was no other evidence suggesting that Kristen was struck with the club. Ttr. 3806-07. Deep soaking stains in Type AB blood, like Kimberly’s, were found on the rug at the hall entrance to the master bedroom, spattered on the top sheet from the master bedroom, and on the front of MacDonald’s pajama top. Ttr. 3648-50, 3664, 3668-69. On the rug of the master bedroom, adjacent to the left elbow of Colette MacDonald, a piece of bloodstained latex was found. Ttr. 1729-30. A finger section of what appeared to be a latex glove, also stained with Type A blood, was found inside the sheet in the pile of bedding on the floor of the master bedroom. Ttr. 1730-31, 3667. Packages of Perry brand disposable latex surgeon’s gloves were found in a cabinet below the kitchen sink. Ttr. 1743, 1760-61. Leading to this cabinet was a series of blood droplets in Type B blood like Jeffrey MacDonald’s. Ttr. 3443, 3682-83. Type B blood also was found on the sliding door of the linen closet, where a large quantity of medical supplies, including disposable scalpel blades and hypodermic syringes, were kept. Ttr. 3670. Type B blood also was found on the rim of the sink beneath the mirror in the hall bath. Ttr. 3670. In the living room, blood was found on an Esquire magazine, and later testing revealed a mixture of Types A and AB, Colette and Kimberly’s blood types, respectively. MacDonald’s eyeglasses were found lying on the floor near the living room window, with a red speck, believed to be blood, visible on the outer surface of one of the lenses. Ttr. 3133. A blood stain from the hall floor at the entrance to the living room was also found, and later testing indicated that it was either Type B or Type O blood. No other evidence of blood was found in the living room. The scene also was processed for fingerprints. In total, forty-four useable latent fingerprints and twenty-nine useable palm prints were lifted from the scene. Ttr. 3116. Of these, twenty-six fingerprints and eleven palm prints were matched with MacDonald family members or other investigators or individuals whose prints were available for comparison. Ttr. 3141. A fingerprint that could not be matched with any known comparison print was found on a drinking glass located on a table directly at the head of the sofa. Ttr. 3132-33. The physical evidence collected at the scene also included wax drippings taken from three different locations: the coffee table in the living room; the chair in Kimberley’s bedroom, and the bedspread in Kimberley’s bedroom. Ttr. 3838. None of these samples matched any of the candles found in the MacDonald home and submitted by investigators for comparison, nor did they match each other. Ttr. 3841-43. Hilyard Medlin, a CID examiner, testified that the three wax samples were brittle and dry, which indicated to him that the wax was at least several weeks old when he received it. Ttr. 3889-90. He received the samples approximately three weeks after the murders. Ttr. 3899. B. MacDonald’s treatment at the hospital MacDonald was first seen in the Emergency Room of Womack Army Hospital by Michael Newman, a Senior Clinical Technician and combat medic. According to Newman, MacDonald’s vital signs were stable, he had wounds on his right chest, upper left arm, and upper left abdomen. Ttr. 2644-49. MacDonald had a lump or abrasion on his left forehead which was not bleeding, but seeping fluid. Id. Newman did not observe any wounds on MacDonald’s back, or icepick wounds on any part of MacDonald’s body. Ttr. 2649-50, 2661. Further examination by a surgical resident and an X-ray revealed that MacDonald had a laceration type wound on the right side of his chest at the seventh inter-costal space (between the 7th and 8th ribs). Ttr. 2858-59. MacDonald also was attended in the Intensive Care Unit by Dr. Merril Bronstein, who found one bruise on MacDonald’s head. Ttr. 2956. Dr. Bronstein described the wound on MacDonald’s upper left abdomen as being “below his costal margin, below the edge of the ribs, maybe two inches down” with it being “about an inch and a half or two inches long, and it was through the skin and fat.” Ttr. 2956. Dr. Bronstein explained that the wound “was not superficial, in that it went through the skin and through the subcutaneous tissue, but [it] was not through the fascia.” Ttr. 2957. MacDonald was treated for a punctured lung and other knife and stab wounds. He suffered at least a 20% and perhaps a 40% collapse of his right lung. MacDonald remained in the intensive care unit for several days and then in the hospital for nine days. The first CID agent to interview MacDonald was Paul Connolly, who attempted to get a better description of the alleged intruders. Ttr. 2681. MacDonald told Connolly he had been attacked by four individuals in the living room, one of whom he said had struck him with a club. Ttr, 2684. MacDonald told Conqolly the club was like a baseball bat, and when he reached to grab it, it was slippery like it had blood on it. Id. On February 17, 1970, MacDonald was interviewed as a victim/witness by FBI Special Agent Robert Caverly. Ttr. 2885. MacDonald told Caverly that during his struggle with the four intruders, he pushed the African-American intruder and a white male away from the couch into the hallway, and both of the men tore at his pajama top. Ttr. 2891. MacDonald reported that when he awoke from being unconscious, he was on the floor in the hallway with his pajama top torn, bloody, and twisted around his wrist. Ttr. 2891-92. On February 18, 1970, Agent Caverly again interviewed MacDonald, who provided some additional information. Specifically, MacDonald told Caverly that he had not checked either the back or front door, and that he may have gone into the hall bath to stop his bleeding. Ttr. 2899-2900. He also thought that the shorter white male intruder, who was wielding an icepick, was wearing light weight gloves that may have been surgical gloves. Id. C. Autopsies of Colette, Kimberly and Kristen Major (Dr.) George E. Gammel performed the autopsy on Colette on February 17, 1970. The autopsy revealed that, although the cause of death had been loss of blood due to stab wounds, she had also sustained massive blunt trauma injuries which, but for the subsequent stab wounds, she could have survived. Ttr. 2507-08. In Dr. Gammel’s opinion, Colette’s blunt trauma injuries, two broken arms, and at least five separate lacerations to her forehead and scalp, were consistent with a frontal assault and could have been caused by a blunt instrument such as the club. Ttr. 2491-98. Dr. Gammel characterized some of the injuries — the laceration to the back of the hands and the broken arms — as defensive wounds. Ttr. 2494-95. Colette also had a “pattern bruise” with “sharp margins and angula-tions” on her chest, resulting from blunt force, and consistent with the side or end of the club.' Ttr. 2498-99. She sustained sixteen deep penetrating stab wounds to her neck and chest, which had been inflicted in a perpendicular manner while she was flat on her back. Ttr. 2500-02. Dr. Gammel opined that these stab wounds were caused by a single-edged sharp knife, and were consistent with the Old Hickory paring knife found outside the rear of the quarters. Ttr. 2502-03. Additionally, Colette sustained twenty-one puncture wounds to her chest, inflicted in a perpendicular manner, such as would be caused by an icepick. Ttr. 2503-04. Kimberly also sustained blunt trauma injuries consistent with the club, and lethal incisional stab wounds. She sustained at least two blows to her head, one on either side of her face. Ttr. 2565-67. The blow to the right side of her face fractured her skull. Ttr. 2567. Kimberley’s eight to ten incisional wounds to her throat and neck could have been inflicted by the Old Hickory knife. Ttr. 2568. Kristen did not sustain any blunt trauma injuries, but had five gaping incisional stab wounds to her chest and twelve incisional stab wounds to her back; some of the stab wounds penetrated her heart. Ttr. 2577-78. The stab wounds were consistent with having been inflicted by the Old Hickory knife. Ttr. 2589. Kristen also sustained approximately ten superficial puncture wounds to her chest, consistent with having been inflicted by the icepick. Ttr. 2576, 2589. Seven puncture wounds were found in the front of her undershirt and found in back of the undershirt, but none were found in her pajama top. This led investigators to conclude that Kristen’s assailant had lifted her pajama top before inflicting the icepick wounds. Ttr. 4039-40, 4043-44, 4048-50. Kristen also sustained minor lacerations on both hands and a significant wound on her right hand, which the CID pathologist characterized as either “defensive wounds or these could be wounds incurred in the process of other types of wounds happening.” Ttr. 2577. D. MacDonald’s pretrial statements On April 6, 1970, MacDonald appeared voluntarily at the Ft. Bragg CID Field Office, and waived his privilege against self-incrimination and his right to the presence of counsel. What he told the CID during this interview was tape-recorded and later transcribed. MacDonald told CID agents that on the evening of February 16, 1970, Colette returned home from a class she had attended, they watched television, and Colette retired to bed first. GX 1135 at 33-35. At approximately 2:00 a.m., he decided to retire and, upon entering the master bedroom, he found that his youngest daughter Kristen had gotten into bed with his wife and had wet his side of the bed. Id. at 3. MacDonald returned Kristen to her own bed, and then went to sleep on the living room couch. Id. The next thing he knew, MacDonald heard Colette screaming, “Jeff, Jeff, why are they doing this to me?” and his daughter Kimberly screaming, “Daddy, Daddy, Daddy.” Id. at 3, 48-49. MacDonald saw four individuals, one of whom was a girl, with a wavering light on her face, who was chanting, “acid is groovy; kill the pigs.” Id. at 3-5. MacDonald also described his struggle in the living room, including the fact that his pajama top was removed from his body: Well, all I know is that when I was struggling — now after I had been hit the first time, I was- struggling with these guys; and my — somehow, my pajama top — I don’t know if it was ripped forward or pulled over my head. I don’t think it was pulled over my head. I don’t remember actually — like backing my head through it. But all of a sudden, it was around my hands and it was in my way. And I remember that I was holding this thing in my hand — the guy’s hand — that I couldn’t maneuver very well. My hands were kind of wrapped up in that thing. And as they were punching me, I was kind of using that a little bit, you know holding it — right exactly — cause this, guy, I thought was really punching me in the chest, you know, and in the stomach ‘cause I was getting hit across here (pointing to the mid-section of his body). So, in effect, I was blunting everything by, you know, holding this up; and I couldn’t get my hands free out of this thing. And I remember I ended up, when I was laying on the floor — it was still around my hands and everything, and I took it off as I was going in the bedroom. And after I took this knife out of my wife’s chest, I — you know, keeping her warm. You know, to treat shock, that would (inaudible) and keeping them warm. GX 1135 at 12-13. During the interview, MacDonald recounted his movements throughout the apartment. He indicated that he lost consciousness after the struggle in the living room, and when he came to, he went the master bedroom where he found Colette, removed a knife from her chest, and performed artificial resuscitation on her and covered her with his pajama top. GX 1135 at 6-7. He checked on both his daughters, and then called an operator from the phone in the master bedroom. GX 1135 at 23-24. He then checked Colette and his daughters for a pulse, and then used the telephone again, this time in the kitchen. GX 1135 at 24. At some point during his movement throughout apartment, he washed his hands in the hall bath sink. GX 1135 at 80. He looked out the back door, which was open, once. GX 1135 at 84. At one point in the interview, MacDonald was asked how the pocket from his pajama top found on the throw rug by Colette’s feet had only a very minute amount of Colette’s Type A blood on it, while the pajama top was soaked with her blood and also had Kimberly’s blood on it. He answered: I laid it — -I laid it over her.... I’m sure I had blood all over my hands from everyone, when I was checking for pulses and stuff.... I mean, I had blood all over me, you know. I mean I checked— I know I checked carotid pulses in everyone, and I’m sure I got some blood on me from everyone. And I went back in to see my wife again. Id. at 69-70. He also hypothesized that the intruders tracked the pocket into the bedroom after his struggle with them. Id. at 74. MacDonald denied recognizing the club, and stated his family did not have an icepick. GX 1135 at 45, 47. He also denied that his family owned a Geneva Forge knife or an Old Hickory paring knife. Id. at 41, 43, 45, 47. MacDonald himself learned during this interview that many threads and yarns identical to those of his pajama top were found in the master bedroom, including under Colette’s body. GX 1135 at 68. He also learned that investigators believed Kimberly had been struck in the master bedroom. GX 1135 at 95. E. Article 32 Hearing On May 1, 1970, the Army formally charged MacDonald with murder. On May 15, 1970, a formal investigation commenced pursuant to the requirements of Article 32, Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. § 830. The Government presented twenty-seven witnesses. MacDonald called twenty-nine witnesses in his defense and testified himself. At the conclusion of the evidence, the investigating officer, Colonel Warren V. Rock, filed a 90-page report, summarizing more than 2,000 pages of transcript testimony, and recommending that the charges against MacDonald be dropped, and that the appropriate civilian authorities investigate Helena Stoeckley. DX 5076. In his report, Colonel Rock noted: There is conflicting evidence as to the degree the crime scene was preserved from the time the first MP arrived on the scene and until photographs were taken some minutes later. The controversy specifically relates to the fact of whether or not the white towel or blue pajama top were on Colette’s body when first seen by the MPs, the location of the handset in the [master] bedroom, the relocation of the white flower pot holder in the living room by some unknown individual and the number (12 to 14) of military police, CID agents, and medical personnel initially in the apartment and their movements through the rooms with the chance of inadvertently altering the crime scene. DX 5076 at 1674. Following the dismissal of the charges under the UCMJ, MacDonald remained at Fort Bragg pending his hardship discharge from the Army in December 1970. Sometime prior to this discharge, MacDonald spoke to Alfred “Freddy” Kassab, Colette’s step-father, by telephone. During this conversation and in subsequent letters, MacDonald told Kassab that he had caught one of the “assailants” in a bar in Fayetteville, dragged him out of the bar, beaten a confession out of him, and then “terminated him with extreme prejudice.” Ttr. 6700-10. MacDonald later admitted that this “was a lie of incredible proportions that I should never have told them, and I was doing it to try to give myself some space to rebuild my own life and to keep Freddie and Mildred off my back.” Ttr. 6710-11. F. Post-hearing forensic evidence and additional MacDonald statements After MacDonald’s discharge, both the Army CID and FBI laboratories conducted additional examination of the physical evidence. The examinations revealed that one of the alleged weapons, the club, had once been part of a 2x4, which was later used as a bed slat for Kimberly’s bed. The Army CID lab also performed serology tests on the “Hilton” bath mat that MacDonald stated he placed on Colette’s abdomen. The tests revealed the presence of blood stains in Type AB (the same type as Kimberly) on the bottom side and Type A (the same type as Colette) on the top side. Ttr. 3646-47. Later examination by the FBI Lab led the examiners to believe that the stain with the Type AB blood could have been caused by the Old Hickory knife. Ttr. 4118-23. The examiners also determined that another stained area on the mat had the general shape of the icepick, and the bloodstains resulted from the items either being placed on the bath mat or the bath mat being “used to wipe the items off.” Ttr. 4124-25. Notably, when the Old Hickory knife and icepick were found, no blood was found on either blade or pick, but blood was detected underneath the handles of both weapons. Ttr. 3419. In June 1971 the FBI Lab conducted examinations of the clothing of the MacDonald family in order to determine the number of cuts or punctures, and whether they could be associated with any of the knives or the icepick found at the crime scene. Ttr. 4031-33. Paul M. Stombaugh of the FBI Lab examined both knives found at the crime scene, and determined that the Geneve Forge knife, which MacDonald stated he pulled from Colette’s chest, had a dull, bent blade. Ttr. 4033-34. He determined that the Old Hickory knife, however, had a very sharp blade. Ttr. 4034. Stombaugh’s examination of Colette’s pajama top showed a total of thirty puncture holes in the front of the garment, which he found to be consistent with having been made with the icepick. Ttr. 4051-53. He also found a total of eighteen clean cuts on the front of the garment, which he determined were consistent with having been made by the Old Hickory knife. Id. Stombaugh opined that it was extremely doubtful that the Geneva Forge knife could have made the cuts in Colette’s pajama top, given its dull blade. Ttr. 4054. As to MacDonald’s pajama top, Stombaugh found two cuts, and opined that these cuts could have been made by the Geneva Forge knife because they were not clean cuts, but more or less tearing cuts. Ttr. 4063. Stombaugh also determined that MacDonald’s pajama top had forty-eight puncture holes, with all but nine holes being in the back and right shoulder of the garment. Ttr. 4056-58. Stombaugh noted that none of the puncture holes were in the torn left panel or left sleeve. Ttr. 4062. All puncture holes were consistent with having been made by an icepick, although some varied in size. Ttr. 4058. In 1974, Stombaugh was furnished photographs of the crime scene, as well as photographs taken at Colette’s autopsy, and was asked to ascertain whether or not the puncture wounds to her chest could have been made through MacDonald’s pajama top. Working with Physical Science Technician Shirley Green, Stombaugh determined that when MacDonald’s pajama top was turned right-sleeve inside-out, and the left front panel is draped alongside — as both are depicted in the photo of Colette with the garment on her chest — twenty-one puncture holes were visible on the upper most layer of the pajama top. Ttr. 4185-87, 4192-93. Starting with the twenty-one puncture holes visible on the top layer of MacDonald’s pajama top, Green was able to insert simultaneously twenty-one probes through all forty-eight puncture holes in the top. Ttr. 4429-4431. A comparison of the Green’s “reconstruction” of the probe through the puncture holes corresponded exactly to the pattern made by the twenty-one icepick wounds on Colette’s chest depicted in the autopsy photo. Ttr. 4193-96. Accordingly, Stombaugh concluded that the puncture damage to Colette’s chest could have been made through the pajama top while it was on her body. Ttr. 4197. By consent, on August 14, 1974, MacDonald was photographed from the waist up by the FBI, in the presence of defense counsel. MacDonald would point to an area of his body with a felt tip pen, and would then describe an injury, how it was inflicted, and whether or not it had left a scar. One FBI agent would take notes, and another agent took “location shots” with one camera and close up shots with another camera. Ttr 2616-20. This procedure was utilized to document fourteen locations on MacDonald’s body — but MacDonald did not indicate that he had suffered any injuries to his back. See “Subject Matter of Statements” [DE-132-21] at 37. G. Trial On January 24, 1975, the grand jury indicted MacDonald for the murders of his family. After a series of pretrial motions and interlocutory appeals, the seven-week trial commenced in July of 1979. In the Government’s own words, its case-in-chief consisted of: evidence from the crime scene, the events at the hospital, MacDonald’s pretrial statements, and the results of the analysis of the physical evidence through the testimony of expert witnesses.... It was the Government’s theory that MacDonald’s account — that he was being attacked in the living room while his wife and children were being murdered in their respective bedrooms — was a false exculpatory statement evidencing consciousness of guilt. It was further the Government’s theory that MacDonald’s account of his movements throughout the crime scene after purportedly gaining consciousness, were in fact attempts to account for otherwise incriminating physical evidence (e.g., his wife’s blood on his pajama top), and to rearrange the crime scene so as to make it correspond to his false account. Gov’t Post-Hearing Mem. [DE-344] at 98. Much of the Government’s evidence consisted of testimony the court already has recounted in this Order. As Judge Dupree later observed, “the prosecution ... introduced an almost overwhelming amount of physical and circumstantial evidence in support of its theory of the case.” MacDonald III, 640 F.Supp. at 310. In summary, “[t]he government was able to prove through laboratory analysis and expert testimony that the club, two knives and icepick were the murder weapons,” and although MacDonald denied any knowledge of the weapons