II. THE GOVERNMENT CANNOT BE PERMITTED TO CIRCUMVENT A DEFENDANT'S SIXTH AMENDMENT RIGHT TO COUNSEL AND FIFTH AMENDMENT PRIVILEGE AGAINST SELF- INCRIMINATION, BY HAVING THE TRIAL COURT ORDER ONE OF THEIR INVESTIGATIVE AGENTS "EXAMINE" THE DEFENDANT, DURING TRIAL, WHEN IN FACT THAT EXAMINATION WAS A RUSE TO OBTAIN INCRIMINATING STATEMENTS FROM THE DEFENDANT
Almost four years after the trial of this case, and numerous request under the Freedom of Information Act, counsel for MacDonald learned for the first time that they had been deprived of critical testimony at trial by the intentional misconduct of the prosecution.
In an elaborate scheme to mislead the defense and trial court, the prosecutors engineered a brilliant plot which transpired briefly as follows:
The most crucial testimony cited by the army hearing officer in 1970 finding that the charges against MacDonald were "untrue" was the testimony of the psychiatrists who examined MacDonald within months of the murders. All of the psychiatrists, both for the defense and army, reported that in their professional opinions, MacDonald was incapable of committing the crimes herein.
When the defense sought to introduce this psychiatric testimony at the trial before Judge Dupree in 1979, the government moved to exclude it. Judge Dupree ruled that before he would not rule on the defendant's right to present psychiatric testimony until MacDonald first agreed to be examined by a Psychiatrist designated by the Prosecution.
The person designated by the prosecution, it learned four years later, had been a key member of the investigative team that convinced the Justice Department to bring instant charges. Dr. Brussel's services as a forensic criminologist for the government, according to the FOIA documents, actually began as early as 1971.
Brussel had advised the government eight years before his examination of MacDonald that he had a firm opinion as to MacDonald's guilt and elaborate theories and explanations to support his conclusion. The government never informed the defense nor the Court that the person they were designating to examine MacDonald had already concluded he was guilty.
Whatever Brussel told Judge Dupree in camera concerning his "examination", it is clear that Judge Dupree was never told of the real role of Brussel. However, based upon what Brussel did say privately Judge Dupree excluded psychiatric testimony for this defendant.
In addition, while Brussel prepared no written report, exhibits to the Motion to Vacate Sentence make it clear that the questions asked in the "examination" related to MacDonad's inability to explain certain physical facts and not his psychiatric condition.
The very questions which were asked by Brussel in this "examination" and that MacDonald could not explain were asked a few days later by the prosecution. Given what Dr. Brussel's real role for 8 years had been, that of investigative criminologist, that line of questioning would be expected. (See Motion to Vacate Sentence and attached exhibits and declarations for a more detailed exploration of the facts and implications of the conduct of Brussel and the prosecutors.)
The conduct of the prosecutors which the lower court excuses completely is so abhorrent to the our conceptions of fairness and decency, not to mention the Fifth and Sixth Amendments to the Constitution, that to imagine this court upholding this conviction is nothing short of nightmarish. Such a decision would open the doors to not only intentionally deceive trial judges, but have investigative agents gain access to defendants, without their counsel present, for the purposes of bolstering their cases.
It was totally impossible for Brussel to conduct an objective examination of MacDonald eight years after concluding he was guilty. Again, even if the government had not intentionally withheld his true role for the prosecution from the court and defense, any professional opinion would necessarily, again, be tainted with the "appearance of partiality" which might have led to a different decision by Judge Dupree on the issue of psychiatric testimony.
Our courts have consistently ruled that where intentional governmental interference with a defendant's right to counsel is demonstrated, no prejudice need be proven. Briggs v. Goodwin, 698 F.2d 486 (D.C. Cir. 1983) United States v. Levy, 577 F.2d 200 (3rdCir. 1971). This case shows the need for such a rule. To decide otherwise would encourage deceit, and similar plots in the future.
The appellant herein has also demonstrated actual prejudice resulting from the prosecutor's misconduct. An important defense was denied MacDonald due to the use of Dr. Brussel. It was his tainted report, in camera, which led to Judge Dupree excluding psychiatric testimony which had a key role in charges being dismissed by the Army. Whatever Brussel said to Judge Dupree will never be known, but it is clear that before this discussion, Judge Dupree had not excluded psychiatric testimony, and after this meeting he did.
Even if the affidavits of MacDonald and his counsel are ignored with regard to the actual purpose of this examination, it is clear that the senior forensic criminologist on the prosecution team, Dr. Brussel surreptitiously obtained an interview with the defendant, during trial and counsel was excluded from that interview. This type of interference with counsel, when discovered, has been condemned by our courts consistently. See Estelle v. Smith 451
U.S. 454, (1981); United States v. Henry, 477 U.S.264 (1980); United States v. Wade, 388 218 (1967); Massiah v. United States, 337 U.S. 201 (1964).
What also makes the actions of the prosecutors incapable of a logical defense, is that their failure to inform defense counsel of Dr. Brussel's real role in this case completely deprived the defendant of the effective assistance of counsel. His attorneys were unable to raise these issues before Dr. Brussel was permitted to "examine" their client. Had counsel been informed of the true facts concerning Dr. Brussel they could have moved the court to have the prosecutors select an unbiased psychiatrist. Judge Dupree could have ruled that another psychiatrist examine MacDonald, that his lawyers be present at any examination by Dr. Brussel, or could have at least viewed his examination with caution, knowing his prior firm opinion concerning MacDonald. All of these options were foreclosed by the deception of the Prosecutors. Such conduct cannot be applauded by this court. To do so would be an invitation to the government to make similar intrusions into other defendant's Fifth and Sixth Amendment rights.
III. IN A CRIMINAL CASE WHERE THERE IS EVIDENCE THAT THE GOVERNMENT WITHHELD, SUPPRESSED, AND EVEN DESTROYED POTENTIALLY EXCULPATORY EVIDENCE, A NEW TRIAL, AT THE MINIMUM IS CONSTITUTIONALLY MANDATED
