I'm guessing that fewer than half the readers of this blog are old enough to remember one of the most notorious and gruesome murder cases of the 1970's, the murders of Captain Jeffrey MacDonald's wife and two young daughters on the night of February 17, 1970. Two old buddies of mine from the Justice Department, Brian Murtagh and Mike Moore, had roles in the case. Brian was the lead prosecutor; Mike drafted the Supreme Court brief in one of MacDonald's appeals and attended the SCOTUS argument, which MacDonald, out on bail, also attended. The government prevailed, 6-3.
Under the Constitution, acquittals are final. Under the current legal culture, convictions seem never to be. Now, 42 years after the murders, MacDonald, still in jail, is being permitted to argue yet another suit alleging his innocence. A long but really interesting and spectacularly well-written article in the Washington Post Magazine has the story.
I got a feeling for criminal law as a result of that case. Mike Moore was a wonderfully fair-minded, bright and balanced man. He would later become Solicitor General of Tennessee, where he served 17 years until his untimely death two years ago. The SCOTUS argument was held on a cold day in December, but when Mike came back from it, he was sweating profusely -- through his suit -- and seemed to be struggling for breath. He was a big guy, an athlete, and I was alarmed. I asked if he was OK. His answer has stayed with me ever since.
He said he had been seated next to MacDonald, and had never before been in the presence of pure evil.
Even for those of us used to debating the death penalty, the MacDonald murders stand out for their violent and grotesque character. I wonder if our adversaries ever take the time to come to terms with what they are really defending.