‘Fatal Vision’ Fraud Case Called Mistrial

The courtroom battle between convicted murderer Jeffrey R. MacDonald and “Fatal Vision” author Joe McGinniss ended in a mistrial Friday after a bitterly divided jury failed to reach a verdict on MacDonald’s $15-million fraud claim against the writer.

MacDonald, a former Army doctor convicted of killing his pregnant wife and two young daughters 17 years ago, accused McGinniss of duping him into cooperating on the book project by pretending to believe in MacDonald’s innocence. McGinniss’ 1983 book and an NBC television miniseries based on it depicted MacDonald, 43, as a brutal killer.

Attorneys for McGinniss argued that MacDonald’s lawsuit was, in effect, a libel claim in disguise and that McGinniss had not promised to portray MacDonald favorably. In addition, the lawyers said MacDonald had signed legally binding releases that prevented him from suing over the book’s content.

After he discharged the six-member jury, U.S. District Judge William J. Rea told MacDonald, McGinniss and their attorneys: “I’m sorry we were unable to reach a verdict. It’s very disappointing, but it happens.”

The trial had been closely watched by legal experts and authors as a test of the rights of non-fiction writers and the protections afforded by signed releases. Among those who testified for McGinniss were conservative columnist William F. Buckley Jr. and crime writer Joseph Wambaugh.

Jurors’ accounts of their deliberations conflicted, but several members of the panel said their discussions never reached the heart of the fraud charges.

“The evidence showed . . . the means that were used to get this book written . . . were, we felt, distasteful,” said jury forewoman Elizabeth Lane, 64, of Claremont, a retired social worker. She added, however, “We didn’t get into the discussion of this very much.”

Of McGinniss’ methods, she said, “I know it’s a matter of expedience, which is done all the time. That doesn’t necessarily make it right, but it doesn’t necessarily make it illegal either.”

“There was no unanimous agreement on any of the issues,” said juror Jenelle Schmidt, 24, a graduate student from San Luis Obispo.

Lucille Dillon, 58, an Agoura housewife, said she was the only member of the jury who was sympathetic to McGinniss. She said other jurors mocked her and McGinniss’ witnesses. One juror referred to Buckley as an “elitist,” she said, while another made light of Wambaugh’s contention that a verdict for MacDonald would destroy the craft of non-fiction writing.

Dillon said the jury formally considered only one issue: Did MacDonald break an exclusive contract with McGinniss by cooperating on another book with a more sympathetic author after McGinniss’ book was published?

“I said, ‘Yes, MacDonald did break the contract,’ and they said ‘No, he did not,’ ” Dillon said.

Lane, the forewoman, said five of the six jurors believed that MacDonald should have received some of the book and television royalties that had been withheld from him because of the alleged contract violation. She said Dillon remained “obdurate” and refused to further deliberate the 37 issues the jury was asked to decide. The judge’s instructions to the jury ran more than 60 pages.

Attorneys for McGinniss and MacDonald both claimed victory.

“We view this as a tremendous win,” said Daniel Kornstein, McGinniss’ lawyer. “The First Amendment is still intact, and MacDonald gets no money.”

During an impromptu news conference in a courthouse hallway, McGinniss told reporters: “I came out here to fight for seven weeks, not about royalties, but about principles, and that fight I clearly won. . . .

“For the first time, we had an attempt to set a precedent whereby a writer could be punished for telling the truth,” McGinniss said. “He came looking for something, and he didn’t get it.”

‘Extremely Ecstatic’

But one of MacDonald’s attorneys, Gary Bostwick, said, “I’m extremely ecstatic about the fact that five people looked at all the evidence we presented and were leaning in the direction of several of our theories. . . . “

MacDonald’s attorneys said they will seek a new trial.

Later in the day, MacDonald issued a statement from his prison cell expressing disappointment that jurors could not agree but saying he would welcome a new trial.

“We are obviously upset that one juror was able to frustrate the deliberative process,” he said, adding that he believed the majority of jurors agreed with him on many issues, including the obligations of journalists in dealing with a subject.

“In order for the First Amendment to survive, authors and journalists must be held to the highest standards of truth, not only in what they print, but in how they act toward their subject,” MacDonald said. “We believe that five jurors were of the same opinion as we are about this issue and that most people of common sense will agree in the future.”

Request Planned

McGinniss attorney Kornstein said he would ask Rea to dismiss the case in a motion to be filed within 30 days. If the judge denies the request, a retrial is not expected to begin until next January, the attorneys said. However, lawyers for both sides said they are still willing to discuss a settlement.

Since the trial began, MacDonald has been incarcerated at the federal prison on Terminal Island. He was moved there, at his expense, from a federal prison in Arizona where he is serving three consecutive life sentences.

He was convicted of slaying his family in 1979, despite his claim that a group of hippies that broke into his home at Ft. Bragg, N.C., chanting “acid is groovy,” were responsible for the killings.

Jurors deliberated for 20 hours over a four-day period before declaring their impasse.