Tuesday, 17 May 2011 16:22

Will Sirhan be Retried? Pepper and Dusek Advance the RFK Case

Jim DiEugenio presents factors which in 2011 could have judicially favored re-opening the RFK case.

In 2005, the effort to reopen the Robert Kennedy murder case suffered a severe blow. In that year, accused assassin Sirhan Sirhan’s lawyer, Larry Teeter unexpectedly passed away. He had gone to Mexico to seek alternative treatment for lymphona. Very few people knew about his sickness or his attempt to seek treatment. So when he died unexpectedly, Sirhan and his case were left in the lurch. Larry Teeter had been Sirhan’s lawyer for about eleven years at the time of his passing. He had filed many petitions in both federal and state courts to try and get a new trial for his client. Many of these motions were pending at the time of his death. But since he had arranged for no other attorney to take over his files, and since he had no partner, the California Bar took control of his files. What made this even worse was that prior to his death, there had been a falling out between Teeter and Sirhan’s chief investigator, Lynn Mangan. So the RFK case now seemed stalled.

Two things happened to change things and make this a live case today. First, as readers of this site know, in 2007, Philip Van Praag did some very important work on an audiotape discovered in the RFK Archives. This was analyzed by the audio technician and revealed to hold the sounds of as many as 13 shots. Around this time, famous attorney William Pepper also decided to take over for Teeter. Assisted by New York attorney Laurie Dusek, they have now made a pair of court filings that significantly advance the RFK case.

As most people know, Pepper became famous for his work on the Martin Luther King case. In that particular case, he did three things. First, he served as attorney on a British TV production of a mock trial. This was sold to over 25 foreign markets, including the USA. Pepper managed to convince a jury that James Earl Ray did not kill King.

Pepper then tried to reopen the King case in Memphis on criminal grounds. To everyone’s surprise, with the help of Judge Joe Brown, he almost did it. But when it seemed that Brown was going to approve rifle tests that would prove once and for all that the bullet that killed King did not come from the rifle in evidence, Brown was removed from the case.

When this effort was stopped, Pepper then got the King family to file a civil claim against tavern owner Loyd Jowers, who had confessed to a role in the murder on national television. This trial went on for about three weeks in 1999. The national media boycotted it. In fact, the only reporter there each day was Jim Douglass for Probe Magazine. In a tour de force performance, Pepper prevailed for his clients. We now had an adjudicated jury verdict that the King case was a conspiracy. (See the book, The 13th Juror for a transcript of the trial.)

Pepper and Dusek have now filed papers in federal court in hopes of reopening the Robert Kennedy case in a criminal proceeding. They are being opposed by the district attorney’s office in Los Angeles. There have been two filings so far, one in October of last year and a supplementary one in April of this year.

The first filing is quite an interesting document. In one of the headings on the "Contents" page it actually states that one of the grounds for reopening the case is that “new evidence demonstrates it is more probable than not petitioner is actually innocent.” This, of course, refers to the audiotape analysis by Van Praag. His analysis not only demonstrates that there were too many shots fired for Sirhan to be the sole assassin but that there were two instances of “double shots”, that is when the shots were bunched too close together to be executed by one person. (Click here, for a thorough discussion of this tape evidence)

Another section of the court filing states that Sirhan deserves a new hearing because the prosecution failed to disclose exculpatory ballistics and autopsy evidence in a timely manner to the defense. In this section, Pepper and Dusek use the Supreme Court ruling called the "Brady Rule." It states that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Filing, p. 28) They go on to say that evidence is deemed material if there is a reasonable probability that, had it been disclosed to the defense, the result of the proceeding would have been different. (ibid)
The document then goes on to mention three specific instances where this occurred:

“First, the state failed to disclose a bullet recovered from Senator Kennedy’s neck during the autopsy; second, the state had evidence of bullets at the scene that it did not disclose to defense counsel; and third, the state violated Brady in delaying its disclosure of the autopsy report.” (Ibid, pgs. 28-29)

This first instance relates to the work of Lynn Mangan and discussed by Lisa Pease in her milestone essay on the RFK case. (Click here for that article.) In a nutshell what Mangan and Pease were arguing was that at the new inquiry set up by Judge Wenke in 1975, there was a question concerning one of the bullets entered into evidence. Originally, the bullet was recorded with the markings ‘TN 31’ on the base. Yet that bullet was not entered into the Wenke hearings. Another bullet marked ‘DN TN” was so entered. Where was the other bullet that allegedly was removed from Kennedy’s neck? This is a crucial issue in the RFK case. For it touches on the credibility of the state’s firearms witness DeWayne Wolfer. Wolfer testified twice that this bullet was the one taken from RFK’s neck and that he matched it to the handgun in evidence. (ibid, p. 30) If it can be shown that either the state held back on the actual bullet, or even switched bullets, this would be enough under Brady to reopen the case.

The second instance pertains to the fact that there were more bullets found and seen in the pantry than could have been fired by the handgun in evidence, which held 8 bullets in the cylinder. The Pepper/Dusek filing begins with the testimony of FBI agent William Bailey in that regard. (p. 31) He signed an affidavit in 1976 saying that “I…noted at least two small caliber bullet holes in the center post of the two doors leading from the preparation room. There was no question…that they were bullet holes and not caused by food carts or other equipment in the preparation room.” (ibid) The lawyers then advance this argument by saying that there is evidence in FBI photos that these bullets were in fact removed. (ibid, p. 32) They then mention two witnesses who saw the same holes in the center post. (ibid) This evidence of extra bullets, strongly indicative of a second gunman, was never disclosed to Sirhan’s defense.

The third instance of non-disclosure by the prosecution was with Dr. Thomas Noguchi’s autopsy report. Noguchi was the coroner in LA at the time. Since he was a friend of Dr. Cyril Wecht’s, he understood all of the problems with the autopsy of President John Kennedy. He therefore consulted with Wecht before he began the examination. The result was an autopsy that has been praised in several quarters as being one of the most thorough and painstaking ever written. And Pepper and Dusek include a copy in the filing.

It is quite interesting to compare this document with the autopsy report in the JFK case. (Click here for that report.) The JFK report is about six pages long. Noguchi’s report is over ten times that length, with sub sections that in themselves are longer than the JFK autopsy report. Unlike the JFK case, Noguchi actually listed all the exhibits that he studied in order to reach his conclusions. For example he actually listed all the photographs he studied, both of the crime scene and of the autopsy. He then listed all of the personnel involved with the autopsy, from the pathologists, to the assistants, to the photographers to the observers. Whereas one could easily read the JFK autopsy report in a matter of minutes, Noguchi’s report takes at least two hours to read and properly understand.

Sirhan’s trial began jury selection on January 7, 1969. There is no formal receipt or message indicating the prosecution ever turned over Noguchi’s report. There is a defense memo by Robert Kaiser saying that the autopsy defined the muzzle distance to RFK as being between one and two inches. (ibid, p. 33) But this was dated February 22, 1969 — well after the trial started and two days before Noguchi’s testimony. The Brady Rule requires that disclosure “be made at a time when disclosure would be of value to the accused.” (ibid)

There is little doubt that Noguchi’s autopsy contained material evidence that was exculpatory to the defendant. Because he concluded that all the shots came from behind RFK, at very close range—a matter of inches—and at extreme upward angles. As the attorneys note, each interviewed close witness stated that Sirhan was always in front of RFK, at least a foot away, and had his arm extended out straight.

Now this would seem to be very important evidence for Sirhan’s defense. That is, if it had arrived in time. But there is a question of competency. And this relates to the third ground for reopening the case: Sirhan was denied effective assistance of counsel. (p. 34) It is very clear that as Pepper and Dusek write, Sirhan’s legal team failed to investigate other legal defenses Sirhan could have had before settling on diminished capacity. Like perhaps, Sirhan was actually innocent because he was set up. Sirhan’s team also agreed to stipulate to the evidence presented against him, that is they did not argue its provenance or authenticity. And finally, they never asked for a continuance before Noguchi testified in order to completely assimilate his report. (ibid, p. 34)

In fact, the most serious problem in this regard is that Sirhan’s lawyers made their strategic choice of a defense without any real investigation. (ibid, p. 36) Also, attached to the filing is a letter by Sirhan saying that his attorneys always assumed he was guilty and they drummed this into him. This came about because of the stipulation to the state’s evidence and the lack of any real inquiry. Or as the filing states,

“…counsel also was ineffective in failing to investigate alternative defenses. Defense counsel in this case conducted zero investigation into the facts surrounding it, taking at face value everything that the state asserted.” (p. 39)

Even when he was offered the professional help of criminalist William Harper, who had real doubts about whether the bullets in evidence matched Sirhan’s handgun (ibid, p. 40), lead lawyer Grant Cooper admitted that he never retained an independent ballistics expert to analyze the bullet evidence. (p. 40) This then allowed Wolfer to get away with his highly questionable testimony about the provenance of the neck bullet and the slugs matching the weapon. In fact, as Pepper and Dusek argue, Cooper did not “proffer any cross-examination of the state’s presentation of the ballistics evidence.” (p. 41)

The attorneys summarize that the cumulative effect of the new evidence, the suppressed evidence and the ineffective counsel not only attest that the outcome of Sirhan’s trial would have been different, but that “no reasonable juror would have convicted him in the light of the new evidence.” (p. 44) They further argue that the totality of the new and suppressed evidence “unequivocally shows that there was in fact a second gunman.” (p. 45) And they then write, based on Noguchi’s autopsy, that not only was there a second gunman, but that Sirhan could not have fired the shots that killed RFK. (p. 48)

They conclude with the evidence that Van Praag has adduced which shows that 13 shots were fired that night which “conclusively demonstrates the existence of a second shooter.” (p. 50) They then say that when a court considers an actual innocence claim, they should “consider the probative force of relevant evidence that was either excluded or unavailable at trial.” (p. 53) They then ask for a writ to reopen the case. (p. 56)

In April, Pepper and Dusek submitted a supplement to this filing. The defense hired Harvard professor Daniel Brown, an expert in trauma memory and hypnosis, to interview Sirhan for over 30 hours. Brown got Sirhan to go further in his memory of that night then anyone has. One of the keys to the RFK case has always been the famous "Girl in the Polka Dot Dress," the girl seen with Sirhan on the night of the murder. Witness Sandy Serrano said that she saw the girl going up the stairs that night with two men, one taller and one shorter than the girl. Sandy said she later recognized the shorter one as Sirhan. After the murder, Serrano saw the girl leave with only the taller man. Sirhan had previously stated that his last memory of the night was having coffee with the girl and then being led to the pantry, where RFK was killed. He was later seen in the pantry standing next to the girl before he pulled his handgun and started shooting.

The question has always been this: If in fact, the girl was the accomplice who was supposed to guide Sirhan into position for a post hypnotic suggestion to trigger his firing, why on earth would she wear such an unforgettable white dress with black polka dots to do so?

It seems that Brown may have solved this mystery. Like many others, Sirhan liked to go target shooting with his handgun. And he had done so quite recently. In these papers he said that the girl’s dress sent him into “range mode” believing he was at the firing range seeing circles in front of his eyes. Under hypnosis Sirhan recalled the girl pinching him on the shoulder and spinning him around to see the RFK entourage entering the pantry just before he fired.

It’s an impressive filing. As Pepper has said elsewhere, in comparing the King and Kennedy cases, the RFK case would be even easier to win in open court. Let us hope he and Dusek finally get that opportunity. If they do, and with Brown’s help, we may all learn what really happened at the Ambassador Hotel in June of 1968.

– Jim DiEugenio

Sirhan filing 2011

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