In the 1990s, Jeffrey MacDonald — convicted of the 1970 murder of his wife and two daughters — began reading about new forensic testing he thought might help prove his claim of innocence.
He brought it up to his then-attorney, Harvey Silvergate, who was working on a post-conviction motion for the case along with attorneys Philip Cormier and Andrew Good.
“I said, ‘How does it work? I’m a doctor but I’m a novice. I’m just reading about it in the newspaper,’ ” MacDonald, a former Green Beret surgeon, tells PEOPLE.
According to MacDonald, Silvergate answered, “If we’re going to ask for DNA, we’re going to ask right now.”
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So Silvergate and MacDonald’s other lawyers added it to their 1997 motion, asking for DNA testing on all the evidence in the case, comprising hundreds of exhibits. Prosecutors opposed the motion, and U.S. District Judge James Fox ultimately granted testing on just 27 exhibits.
“Now, if they think I’m guilty, why aren’t we being given the right to DNA test every blood exhibit?” asks MacDonald. “What are they afraid of?”
When the testing still hadn’t been initiated two years later, Barry Scheck, co-founder of The Innocence Project, joined in the lobbying for it.
Even then, it took almost ten years for the DNA test results to come back.
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“It took longer than any DNA test I can remember from any of the hundreds of hundreds that I’ve participated in obtaining,” Scheck tells PEOPLE. “That’s why we got involved, because it looked like DNA could shed some significant light on whether Dr. MacDonald was guilty or innocent…. I was appalled that it took that long. I couldn’t figure out why that was happening.”
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When the testing came back, it showed DNA from three hairs collected from the crime scene did not match MacDonald’s or anyone else in the household. This evidence is now part of his “actual innocence” appeal before the 4th Circuit Court of Appeals in Richmond, Virginia, which is scheduled for oral arguments on January 26.
(The DNA also did not match that of Helena Stoeckley or Greg Mitchell, two of the suspects who repeatedly confessed to being involved in the crimes and are now deceased.)
On Feb. 17, 1970, MacDonald’s wife Colette, 26, and daughters Kristen, 2, and Kimberley, 5, were brutally murdered. MacDonald was convicted of the crimes in 1979 but has always maintained his innocence. The U.S. attorney’s office is just as adamant that he is guilty. So is Colette’s brother, Bob Stevenson, 77.
In 2011, the North Carolina Center on Actual Innocence tried again to get DNA testing on all the evidence, having gotten a request from Hart Miles, another of MacDonald’s attorneys.
“I think Jeff’s position has always been that any and all testing that is possible he wanted to have done,” Miles tells PEOPLE.
Christine Mumma, executive director of the center, said she first met with MacDonald before deciding whether to get involved.
“I went to meet with Jeff and told him I was only interested in getting involved if he would sign an affidavit of innocence and consent to DNA testing,” Mumma tells PEOPLE. “We use that as an indicator. Certainly if someone says, ‘No, I don’t want you to test anything’ or ‘I don’t want you to run my DNA through a databank, then that’s a good sign we shouldn’t pursue the case.”
But MacDonald agreed. “He was fine with anything being tested but his position was that there was enough evidence to prove his innocence without more DNA testing,” Mumma says.
Mumma filed the motion after the September 2012 evidentiary hearing in Wilmington, North Carolina. Once again, the government opposed the motion, and Judge Fox denied the motion in 2014.