Sunday, 15 December 1996 18:55

The Nearness of History: Scott Enyart vs. LAPD on the RFK Photos

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Superficially based on errors and incompetence within the Los Angeles Police Department, in actuality, [Scott Enyart v. City of Los Angeles] bore as little relation to accident and error as Robert Kennedy's murder was owed to the act of an "angry and disoriented Palestinian," writes David Manning.

From the November-December, 1996 issue (Vol. 4 No. 1) of Probe

One of the aims of CTKA is to educate our readership to recognize patterns of history as they happen so that "revisionist" – or real – history does not have to wait in the wings indefinitely before entering mainstream thought. If we don't attempt this, then the repeated cycles of scandals and assassinations, which constitute current American history, will continue to self-perpetuate. The defense promulgated in the civil trial of Scott Enyart v. City of Los Angeles was a good example. Superficially based on errors and incompetence within the Los Angeles Police Department, in actuality, it bore as little relation to accident and error as Robert Kennedy's murder was owed to the act of an "angry and disoriented Palestinian."

The defense case that unraveled before the jury was specifically designed to maintain the cover-up of the facts of RFK's murder and the continued suppression of evidence which points away from Sirhan as a "lone gunman." LAPD and its allies keep that fiction alive since the actual evidence – as was hinted at here – leads inexorably to a conclusion of multiple assassins. This suppression is absolute because, contrary to the defense's case, Probe has learned from both trial testimony and other sources, that Enyart's film and pictures have been destroyed.

Perhaps a more ominous and dangerous revelation came out of this trial: the continuing and nearly total blackout of news coverage by both the mainstream and alternative media, in the RFK case. What little coverage that existed was spun into the only reality most of the public will ever know.

The worst examples of this selective journalism turned out to be the only examples of any other coverage of this trial by a newspaper or magazine, other than Probe. In a feature story for the "alternative" L.A. Weekly, Jim Crogan referred to the trial as a "must-follow for 'Camelot' lookie-loos, conspiracy theorists, journalist aficionados and even historians" (emphasis added). The dominant daily newspaper in the city, The Los Angeles Times, ran two generic pieces on the case, one at the start of trial and one on the verdict. There was also a brief feature article after the end of the second week, concerned only with the amount of money being spent by the city to defend itself. Yet, nowhere in any of the six or seven thick sections of that daily could the reader find one word devoted to either the allegations which brought the lawsuit or the implications therein.

The cover story of a lone murderer in the pantry, distributed by the Times back in 1968, achieved two major goals. It created a degree of acceptance of the "official" solution which has become almost impossible to dislodge; and by perpetuating this fiction with subsequent news stories, the belief has been encouraged that however tragic the incident, it was essentially meaningless. The Times is not about to give credence to anything other than the official conclusions of the LAPD in the RFK murder. Therefore, giving honest and objective coverage to Scott Enyart's lawsuit was out of the question. With the official news blackout as the backdrop, Probe will now note how this historic event unfolded.

Opening arguments began precisely at 10:00 AM on Tuesday July 2, 1996. Enyart attorney Christine Harwell explained to the jury some of the elements of the plaintiff's case. One of these was the improper seizure of Scott Enyart's camera and film in the early morning hours of June 5th, 1968. Somewhere along the way however, that changed, because during the jury instructions given on August 6th, 1996, the judge informed the jury they must consider that the LAPD officers who detained 15 year-old Scott Enyart had probable cause to do so and that it was not an unlawful detention. This fact made the confiscation of his camera and film proper in the eyes of the law. The defense won this argument, but it was a dubious ruling at best, because the specific probable cause was never offered or explained.

Other elements stressed by Harwell included the improper handling of Enyart's property; failure of the LAPD to properly perform a thorough investigation; deliberate misuse of his film; willful and deliberate misidentification and mislabeling of his property; willful and deliberate failure to provide Enyart with a receipt for his property, even when one was requested; failure to properly and safely preserve evidence (Enyart's film); the transfer of title to his property without Enyart's express permission or authority and without even his knowledge; a false assertion by the City of Los Angeles that Enyart's property, in its entirety, has been returned to him. Ms. Harwell emphasized that the LAPD's own documents relating to this matter would prove the plaintiff's case.

Harwell's opening statement was interrupted numerous times by defense attorney Skip Miller. His objections mostly relied on the plea that Harwell's assertions of willful, deliberate and even malicious disregard of this important evidence, were "beyond the scope" of the lawsuit. He literally sprang out of his chair when Harwell suggested that pictures developed from Enyart's missing film probably showed someone other than Sirhan firing a gun in the kitchen pantry. The judge, Commissioner Elias, sustained the objection. Miller objected again to Harwell's assertion that many eyewitnesses to the shooting were not even questioned by LAPD and that there was evidence to indicate eyewitness testimony had been altered. Again, the objection was sustained. Miller wanted to keep the focus of the case as narrow as possible. There would be no discussion of a conspiracy in the RFK murder here. That would make for a clear motive for the "mishandling" of Enyart's film, which might have been the Zapruder film of the RFK case. The judge gave Miller a clear victory by agreeing with him on this narrow grounding of the case.

skipmillerBy 11:30 AM, Miller had already demonstrated most of the courtroom tactics he would employ during the plaintiff's portion of the trial, which included frequent objections, apparently meant in part to break up the opposing attorneys' rhythm and the continuity of their presentation. In his opening argument however, he laid out what would be the brunt of his defense against the charges pending. He told the jury that the defense would prove Scott Enyart to be a liar regarding all the allegations specified in his lawsuit, including the key issues of whether or not Enyart was in the pantry at the time of the shooting; whether he shot three rolls of film or just one; whether LAPD officers who confiscated his camera and film at gunpoint had probable cause and, whether the mishandling of Scott's film evidence was knowing and willful, or just simple clerical errors.

Miller's outline of the defense case fell short of actually stating a solid defense against the charges alleged. Instead, he immediately offered a series of vague, often flippant, explanations and excuses for the specific actions and behavior of certain LAPD officers. He told the jurors that because of a series of "honest mistakes," the film and photos from Enyart's film were mislabeled and the error was not uncovered until all these years later – coincidentally with the filing of this lawsuit. He also probably overplayed the cynic's view by directly challenging the jurors to call him on the issue of whether or not Enyart shot one roll of film (Miller's contention) or three rolls (Enyart's testimony). Skip Miller's entire opening argument took less than 90 minutes.

The rest of that week and into the second, Scott Enyart was on the stand on direct testimony. Under oath, he never wavered as he related his story to the jury.

Around 3:30 PM, near the end of court on Monday July 8th, Miller began his cross-examination. As far as the jury was concerned, this must have been one of the most telling moments of the trial. For Enyart was even more convincing on cross-examination, while enduring the pit bull style of the city's attorney – even when apparently surprised by an unanticipated photo meant to malign his credibility.

Miller's opening gambit was an attempt to get Enyart to identify any one of a series of photos from a proof sheet, generated by the LAPD photo lab, as being one of the pictures he took at the Ambassador Hotel in 1968. Enyart, of course, was unable to positively identify any of the photos. He testified that it was impossible to do so since he could not be absolutely sure he had ever seen even one developed picture from any of the three rolls he shot that night.

From that point on, Miller's cross-examination never rose above the level of implying rather strongly that Enyart was a liar and/or a "Hollywood wannabe" and insisting to the jury that Enyart was attempting to defraud the city with his lawsuit. An exchange between Miller and Enyart helps illustrate this point.

Miller attempted to demonstrate to the jury that Enyart was never in the pantry when he said he was. He did this not with any hard evidence, but rather by attempting to get the jurors to go along with his suggestion that Enyart had made up the whole story and, over the years, embellished his role in history.

The one trial exhibit that Miller entered into evidence during his cross examination served to corroborate Enyart's claim that he was the lone photographer in the pantry.

Enyart replied, "What I described seeing [on direct testimony] is what I have vivid memories about seeing in the pantry that night." Miller responded by shouting, "Isn't it true Mr. Enyart, that you didn't actually see what happened [at the moment of the shooting] but just read about it?" It was clear that Miller believed this approach would break down Enyart's story and convince the jury that Enyart was really a fraud. But Enyart's testimony under cross-examination convinced the jury that he was genuine.

The one trial exhibit that Miller entered into evidence during his cross examination served to corroborate Enyart's claim that he was the lone photographer in the pantry. And further, that he was behind RFK and atop a steam table at the time of the shooting before being shoved off. This photo was taken from in front of RFK by a young, amateur photographer named Richard E. Harrison. In the foreground of the photo, the struggle with Sirhan ensues. In the background, alone atop a steam table, taking pictures, is 15-year old Scott Enyart, just as he has described himself. The Harrison photo is taken from Sirhan's perspective right after the shots have been fired.

A seeming contradiction in Enyart's testimony arose when, during direct examination, he identified himself as the person on a steam table taking pictures in a photograph taken by Time-Life photographer, Bill Epperidge. Enyart stated he first made the identification when he saw the picture in a book Epperidge had published in 1988. The exhibit used during this trial was a two foot square blow-up of the same Epperidge photo. Enyart had never seen this picture blown up before he saw it in court. The person in the picture looked similar, but it was clear that it was not 15-year old Scott Enyart. He had felt for a number of years, that the Epperidge picture helped to corroborate his story. Yet, bravely, he recanted his earlier assertion that he felt it was him in the picture.

In trying to make hay from the inconsistency of Enyart's testimony and prove that Enyart was never in the pantry, Miller put photographer Epperidge on the stand, as well as another person in the photograph, photographer Harry Benson.

But the testimony of both Epperidge and Benson proved negligible and later backfired. For on the issue of whether they remembered seeing a 15-year old boy in the pantry, up on a steam table taking pictures, both admitted to: (1) Not coming into the pantry until well after the shooting and (2) Once inside, focusing all their attention on the area where Robert Kennedy lay mortally wounded and taking picture after picture. Both also stated that their only other concern was positioning themselves to get good shots and this was accomplished by elbowing and shoving their way into position. This rang true because Enyart recalled being shoved off the table by a number of photographers who, after rushing into the pantry, jumped up onto the table to get better shots. Enyart was actually out of the pantry completely when Epperidge took the picture which showed Benson in the background. What this exchange proved was that it was Enyart in the Richard Harrison photo taken right after the shots rang out and it was someone else in the Epperidge blow-up. Enyart had always insisted that he was shoved off the steam table right after the shooting by other photographers. The two photographs seemed to illustrate his point quite vividly.

On July 10th, Professor Phil Melanson testified on behalf of Scott Enyart. Although he was able to provide the jury with a more historical backdrop to Enyart's lawsuit, the same testimony was competently given by Paul Schrade, who lives in Los Angeles. This made Melanson's all-expense paid trip out from Massachusetts seem unnecessary. What is apparent is that Melanson convinced Enyart's father-in-law and lead attorney, Alvin Greenwald of his value as a witness, so he was added to the plaintiff's witness list.

Monday, July 15th, in the afternoon until the end of the day, Miller questioned, out of order, defense witness and retired LAPD captain Frank Patchett. In 1968, Patchett was a police sergeant assigned to Special Unit Senator, in charge of the case preparation team. His cross examination was most interesting.

Patchett was the first of the retired LAPD witnesses who would testify in this case. His performance on the stand set the standard for the former officers and detectives who were to follow. He went from giving rehearsed, staged "answers" on direct examination, to almost babbling, extemporaneous dubious explanations of those "answers" on cross-examination. He became unable to utter clear and precise statements. His memory became faulty and he was unaware of many facts about key issues. Apparently, to this day, he has never read a book, a magazine, a newspaper or in any way concerned himself with the murder of Robert Kennedy. Not since the dissolution of Special Unit Senator.

Still, there were some nuggets chiseled out of the mother-lode of information in Frank Patchett's mind. He even unwittingly confirmed some aspects of an ongoing LAPD cover-up in the RFK assassination and also corroborated Enyart's version of the events in the pantry.

For example, Patchett's version of the struggle with Sirhan for the gun had Rosey Grier and Rafer Johnson not even in the pantry until well after all the shooting ceased! He insisted that the LAPD investigation revealed that, as RFK left the podium, the Senator instructed both Grier and Johnson to "stay with Ethel" (Mrs. Kennedy). According to Patchett, Grier and Johnson only entered the pantry upon hearing shots. They then fought through the panicked crowd attempting to flee the pantry to help Karl Uecker, who had been holding down Sirhan's arm for some time. Patchett stuck by this version even after being shown the Richard E. Harrison photo wherein Rafer Johnson can be identified as one of those involved in the struggle, either while shots are still being fired or immediately thereafter.

At another point during cross, Patchett demonstrated the defense method of having it both ways. He stated that everyone who was in the pantry at the time of the shooting was not identified by SUS. Consequently, everyone was not interviewed. Although Patchett did have a record of Enyart's tape recorded interview of June 5th, 1968 (made at the police station) he had no recollection of ever receiving the interview reports on Scott Enyart. That lack became the basis for his assertion that Enyart's name was not included on the list of pantry witnesses because, according to LAPD – and argued by Skip Miller – Enyart was never in the pantry. This, in spite of the convincing evidence in the Harrison photo and Enyart's own assertions. There was never any follow-up investigation about Enyart's presence in the pantry and no reason given as to why there was none. In spite of his own testimony, Patchett still insisted that his Case Prep Team was not remiss in not following up on discrepancies of this kind. This kind of obstinacy suggests a hidden agenda.

In light of the above, it appears that the real reason the defense called Frank Patchett may have been to testify about a notation he made to the head of the LAPD photo lab in 1968, a man named Eppling. On the property report which allegedly referred to Enyart's film, the notation appears: "film privately loaded." This referred to the fact that the film had been "bulk loaded." That is, the film was bought in bulk size and not in individual spools. Then, by using a film loading device, it is loaded onto a spool which can be loaded into the camera. Even with the property report in front of him, Patchett could not remember either the significance of the notation or to whose film the notation referred. Yet the notation was there for all to see and could not be easily explained away. It had to be verified and then incorporated into the defense scenario. As we shall see in the second part of this piece, this is where Scott's former "friend," Brent Gold, was worked into the defense stratagem.

During Patchett's cross-examination, Skip Miller objected to virtually every question asked about documents in the RFK files. Christine Harwell attempted to lay a foundation with Patchett that would allow her to ask pertinent questions of two of the officers named in this lawsuit. Not only did Miller vigorously object, but Commissioner Elias sustained the objection and would not allow documents from LAPD files to be authenticated by the witness. This, despite Miller's painstaking effort to show Patchett's bona fides with regard to his knowledge in that area. Every effort to have Patchett identify or acknowledge SUS reports or interview documents, on cross-examination, was blocked with a sustained objection.

The rest of the third week was devoted to the retired LAPD cadre who had been subpoenaed by each side, including officers Michael Sheills and T.J. Miller, who, along with Dudley Varney, were named as defendants in Scott Enyart's lawsuit.

The chief investigator for the defense team, current LAPD detective Stan Salas, stated that they had sent a postcard to Varney's address and had received no response. Incredibly, Salas could not or would not detail any other method of investigation employed to locate Varney, even though Varney, like the rest of this group, is still on a police pension.

Although both Sheills and Miller showed up to give their sides of the story, it was pointed out to the jury that Varney could not be located. The chief investigator for the defense team, current LAPD detective Stan Salas, stated that they had sent a postcard to Varney's address and had received no response. Incredibly, Salas could not or would not detail any other method of investigation employed to locate Varney, even though Varney, like the rest of this group, is still on a police pension. So, former officers Alan Bolinger, Calvin Craig, Sheills, and Miller in turn recited their stories as to how Enyart was first detained and then escorted to the police station, where his film was confiscated. It is interesting that Varney's key role in this – as the one who questioned Scott at the station and then informed him of his film's shipment to the State Archives – was the one which could not be examined. It is also interesting that the person who had the other key role, i.e. actually checking in and noting all evidence, did not do well. T. J. Miller was hesitant in response to plaintiff's questioning, halting in his delivery, seemingly unsure. Even the witness himself noted that he had been advised by consul during a recess on how to strengthen his delivery.

Throughout the entire trial, the testimony was observed and monitored daily by two LAPD detectives in suits and ties. One may only surmise the reasons they were there every day. But a reasoned guess began to materialize after T. J. Miller's disappointing appearance.

Following his testimony, Miller dutifully went over to where the two detectives were and sat down. One sat behind Miller and one sat next to him. It appeared to be a debriefing and critical analysis session, right there in the courtroom, both men loudly whispering in each of his ears. At one point, when each detective stopped speaking, Miller stood up to go. Evidently, Miller was premature. The detective behind him put his hand on Miller's shoulder and forced him back down into his seat. The session wasn't over.

The morning testimony of Wednesday, July 17th, proved to be one of the most memorable of the trial, almost reminiscent of a TV drama. Enyart's attorneys interrupted their scheduled witness, to call someone who was not on their original list. Someone who had new and vital evidence in the case. An agreement for this witness to appear for a 402 hearing, without the jury present, had been made at the end of the court the previous day.

Heimanson turned to McCrary and said in effect, "You're going to win." McCrary asked him why he thought that. Heimanson replied, "I know what happened to the kid's film and I know who destroyed it."

The witness was a man named William Heimanson. Heimanson is a photographer for the City of Los Angeles, assigned to the Scientific Division of the LAPD, which includes the photo lab. Heimanson has held that position since being hired in February 1990. On or about June 16, 1996 – about two weeks before this trial began – Heimanson had a casual conversation with another photographer, Jim McCrary. McCrary had been subpoenaed by Scott Enyart to testify as a photographic expert witness.

In the course of their conversation, Heimanson brought up the Enyart trial. He told McCrary that he knew Jim was going to testify for Enyart. Then, Heimanson turned to McCrary and said in effect, "You're going to win." McCrary asked him why he thought that. Heimanson replied, "I know what happened to the kid's film and I know who destroyed it." McCrary immediately notified Enyart's attorneys and related the incident. Jim later called Heimanson at home and invited him to have lunch and further discuss the case. Predictably, Heimanson refused and stated he could not speak to McCrary anymore.

As William Heimanson took the stand at the 402 hearing, he was visibly nervous, almost scared. As he spoke, his voice cracked and quavered and he required several gulps of water. Today, there were not just two detectives in suits observing the trial. Now there were six or seven of them. And they were looking right through Heimanson as he sat rather shakily in the witness chair.

Under oath, Heimanson denied ever making any such statements to Jim McCrary or any other person. He also seemed to experience severe lack of recall of specific dates, times, persons and critical events. He admitted that he might have discussed the whereabouts of Enyart's film, at some long-forgotten, point in time with fellow workers. But he considered that type of conversation idle speculation and gossip.

Both Skip Miller and Commissioner Elias jumped at that opening. As soon as Miller vehemently objected to the line of questioning by plaintiff counsel – on the rather nebulous grounds that it was "outrageous" – Elias sustained the objection. She then ruled that she would not allow the jury to hear testimony she believes is gossip. She then hastily excused Heimanson, subject to recall and still under oath and still under subpoena. So the jury was not allowed to hear a word of this tantalizing, and potentially crucial, piece of testimony regarding the incident.

At this point, the effects of defense attorney Miller's courtroom antics – his constant objections, his stream of ridicule and insinuation, his baiting of plaintiff's consul (Harwell's partner, Steve Spotaro actually challenged Miller to a fight twice), mostly tolerated and/or upheld by Elias – managed to impute an air of confusion and amorphousness to Enyart's case. And although many people (including Scott Enyart) believed this case would never go to trial, they believed that if it did, it would clearly be a winnable case. Up to this point, it did not look like justice would be served.

In Part 2, Dave Manning details the last two weeks of testimony, including the three witnesses who had the most profound impact on the jurors: the plaintiff's witnesses who virtually won the case for Scott Enyart – Ted Charach and Rose Lynn Magdan – and the behind-the-scenes story of how they almost did not testify. And the defense's star witness – Enyart "friend" Brent Gold, who accompanied Enyart to the Ambassador Hotel that night. Also, more insight into the jury deliberations and the possible effect of jury foreman Robert Pinger. Included will be updates on current post-trial motions and rulings.

Part 2 of this article

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The cartoons were given to us by the extremely talented Martin Cannon. Please do not repost or copy.

Last modified on Monday, 12 June 2017 21:47

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