Fatal Division : High-Stakes Literary Trial Documents the Breakdown of a Best-Seller Friendship

Once they were friends, fervent believers in each other and the cause that united them.

Today they sit on opposite sides of a federal courtroom in Los Angeles, divided by the contempt of knowing each other too well.

Joe McGinniss, 44 and once the youngest author ever to have a book top the best-seller list, and Jeffrey MacDonald, 43 and once a Green Beret Army doctor and officer with a promising medical career, are spending this summer slugging it out in a wearing legal fight that blossomed from the wreckage of their friendship--and from an infamous 17-year-old murder case that refuses to die.

MacDonald--sentenced in 1979 to three life terms for the 1970 bludgeoning and stabbing deaths of his pregnant wife and two young daughters--is claiming in a $15-million civil suit that McGinniss wooed him to bare his soul and that, seduced by McGinniss’ agreeable personality and the assurance of a book trumpeting his innocence, he complied.

For his trouble, he charges, he was rewarded with “Fatal Vision,” a 1983 best seller that portrays him as unstable and possibly spurred into a psychotic killing frenzy by prodigious, prolonged consumption of amphetamines. All along, MacDonald has maintained that the murders were committed by a band of drug-crazed hippies in a Manson-style raid.

The Charm Faded

McGinniss--who freely admits he was once charmed by the still-boyish MacDonald and started out firmly believing in his innocence--is fighting back with a countersuit, using his prestige as a writer and the backing of the literary Establishment. He claims that MacDonald frequently lied to him not only about the murders but about his past in general. For McGinniss, the case is a battle over artistic freedom and the right of a writer to draw his own conclusions and sculpt his work as he sees fit.

For the jury, it would seem to boil down to this question: Has a convicted triple murderer been the victim of character assassination?

So far, the slow-moving month-old trial has been so quiet that one lawyer was spotted suppressing a yawn as he questioned a witness. But papers filed with the court show that the proceeding could become the literary trial of the decade. Before it is over, a parade of literati--novelist and columnist Jimmy Breslin, “The Right Stuff” author Tom Wolfe, among others--are slated to testify in the badly lit chamber, adding the glow of their celebrity to the long-running affair.

A Lucrative Vision

Right now, however, it is still the personal story of two men, each driven by his individual vision of truth, justice--and profit.

(“Fatal Vision” was apparently a lucrative venture, bringing in a total of $1.1 million in royalties, advances and fees, including the sale of a successful TV movie, according to testimony. Neither McGinniss nor MacDonald, however, has received anything near that amount; the bulk, according to case records, has apparently gone to publishers, agents and others. From papers filed with the court, it appears that McGinniss has earned about $268,000 while MacDonald, who claims in his suit that he was cheated, has received about $83,000.)

From a storehouse of letters, depositions, tape recordings and documents, each side is trying to prove its case. Both believe they have ample ammunition.

Shortly after the North Carolina trial at which MacDonald was found guilty in August, 1979, McGinniss wrote to MacDonald: “There could not be a worse nightmare than the one you are living through now--but it is only a phase. Total strangers can recognize within five minutes that you did not receive a fair trial.”

Then on Sept. 28 that year, McGinniss wrote again: “Jeff, one of the worst things about all this (the conviction) is how suddenly and totally all of your friends--self included--have been deprived of the pleasure of your company.”

And on Nov. 2, he wrote: “Jesus, I hope you get out of there. It must be excruciating, going through each dreary day, trying not to let yourself hope too much . . . “

Nearly three years later in a May 4, 1982 letter, McGinniss wrote: “I don’t suppose there’s any need, at this point, for me to say I know you must be suffering greatly.”

The Issue of Control

But in that same letter, McGinniss also told MacDonald that he would never have agreed to write a book about the case unless he had total control of the project.

“Not only I, but any other writer of merit or integrity, confronted with a situation such as yours, would have to insist on complete freedom to write whatever book he finally found emerging from the entire situation,” he wrote.

The letters on file with the court show that over the years, McGinniss’ letters to his subject became shorter, almost perfunctory, especially when there was no pressing business related to the book. An April 20, 1983, letter ends this way: “Six inches of snow yesterday; 12 over the weekend. More expected tonight. So much for spring.” This terse weather report is apparently one of the last things McGinniss wrote to MacDonald. The following year MacDonald filed the suit.

MacDonald, a Long Beach physician between the murders and his trial, argued in pretrial papers and testified last week that McGinniss wrote those letters and others even though McGinniss had come to believe MacDonald was guilty. Recalling his cooperation with McGinniss, MacDonald also testified the writer told him that “he needed me to bare my soul to him so that he could create, as he put it, the backdrop to my innocence.”

In a Nov. 11, 1985, deposition, McGinniss admitted he changed his mind about MacDonald’s innocence during the trial itself. “I would say that based on the evidence presented in court, I had formed that opinion by the end of the trial in 1979,” he said.

“However,” he added, “there was for a considerable time thereafter a great degree of variation in the intensity with which I held that opinion. I was confronted on a daily basis with this horrible conflict between what the evidence had demonstrated and the man I thought I knew.”

Untested Belief

McGinniss went on to explain why he had never told MacDonald of his change of mind. “One reason was because I wasn’t yet ready to write the book, and therefore I hadn’t tested that opinion in the rigorous way that one does through the process of writing,” he said. “I was hoping rather fervently that something would attempt to persuade me that I was wrong . . . . It’s not very easy to confront somebody who you had come to consider to any degree a friend with the opinion that you believe he murdered a pregnant woman and his own two little girls.”

Last week, MacDonald testified that when he read the book and discovered he had been portrayed as a liar and a killer, “it was like having my guts ripped out.”

‘I Was Angry’

“I was nauseated. I was angry . . . . I was depressed because I had just spent four years baring my soul to a person who said he was receiving it with an open mind and ear and obviously he hadn’t,” MacDonald testified.

MacDonald is apparently hinging his case on a phrase that was penciled in and signed by both sides in the original contract between him and McGinniss. MacDonald and his attorneys are interpreting the phrase “provided that the essential integrity of my life story is maintained” to mean that McGinniss was contractually bound to write a favorable book.

McGinniss contends that MacDonald, by signing the contract, signed away any editorial control over the book.

In support of his case, McGinniss’ attorneys plan to call a number of prominent writers to testify about the writer-subject relationship. In addition to Breslin and Wolfe, they include Chicago newspaper columnist and author Bob Greene, Pulitzer-Prize winner J. Anthony Lukas, police novelist and nonfiction writer Joseph Wambaugh (whose offer to write the book had first been turned down by MacDonald) and author and editor of the Nation magazine Victor Navasky.

What they’ll specifically say is a mystery--a gag order imposed by U.S. District Judge William J. Rea prohibits witnesses, lawyers and the principals from talking about most aspects of the case outside the courtroom. But there isn’t much doubt about what they will say in general.

No Surprises Expected

A witness list filed with the court explains that each will testify that a writer’s subjects don’t have the “right of prior (prepublication) review or a veto power over content unless there is an explicit agreement to that effect.” They also will testify that it is “the proper and necessary function” of a writer to establish close ties to a subject in order to understand “character, personality and attitudes.”

Acknowledging that “the writer and subject may develop a personal relationship,” the legal papers add that such a relationship “in no way limits the writer’s freedom. Subjects are frequently displeased by what writers write about them, but the writer’s duty is to the truth and to his art, not to the self-image of the subject.”

Although he also declined to comment on the case, Nation editor Navasky remarked that his magazine had expressed an opinion about MacDonald’s case. Last November the magazine, in an editorial, said that MacDonald’s suit, which alleges fraud by McGinniss, is actually a thinly disguised libel action, one that could set a precedent for enormously complicating the work of nonfiction writers.

For MacDonald, who is serving his time in Phoenix, the trial seems to be a welcome break from the prison grind. He appears almost jaunty at times as he is brought into the courtroom with his hands shackled behind him.

For McGinniss, a Massachusetts resident, the proceedings apparently are a massive inconvenience.

“This was not my first choice as a way to spend the summer,” he said. “I have a living wife and children that I want to spend time with.”

Sitting a few feet from the man he came to believe is guilty of brutal murders hasn’t been particularly difficult, McGinniss said, because his emotions have run dry over the case.

Few Glances Exchanged

“I’ve worked through so many feelings about him (MacDonald) that now I only feel sadness and disgust,” he explained during a trial break. He also joked that he plans to write a book titled “Fatal Vision: The Lawsuit.”

In fact, neither McGinniss nor MacDonald seem to pay much attention to each other in court. They seldom look, or even glance, at one another.

MacDonald, who is under so tight a guard that spectators have been waved away from any bench close to him, generally has seemed cheerful and relaxed, joking with his guard and chatting briefly with friends who have come to show their support. Aside from his prison-bleached skin, he appears trim and fit. He also appears to follow the proceedings closely and spends court breaks reading case-related documents.

During the trial, he is being held at the Terminal Island federal prison. For his upkeep and related costs there, court papers show, he is paying $362.30 a day.