ANDREW J. WISTRICH, Magistrate Judge.
This case may be the final chapter in an American tragedy. On June 5, 1968, moments after declaring victory in the California Democratic primary, Senator Robert F. Kennedy walked through the kitchen pantry of the Ambassador Hotel, where petitioner was waiting. As Senator Kennedy stopped to shake hands with hotel employees, petitioner walked toward him, extending his arm. Instead of shaking Senator Kennedy's hand, petitioner shot him. Petitioner continued to fire his gun even as bystanders wrestled him onto a table. Senator Kennedy died of his wounds.
Petitioner was charged with assassinating Senator Kennedy. The evidence of petitioner's guilt was overwhelming. Not only did numerous witnesses see petitioner shoot Senator Kennedy, but petitioner — who had written "RFK Must Die" and "Robert F. Kennedy must be assassinated" repeatedly in his diary — confessed to shooting Senator Kennedy "with malice aforethought." Petitioner was convicted of first degree murder and five counts of assault with a deadly weapon. He received a death sentence.
In this petition for a writ of habeas corpus, petitioner challenges his conviction for the assassination of Senator Kennedy. This petition was filed in 2000 — more than three decades after petitioner was convicted.
The California Supreme Court affirmed petitioner's conviction, but reduced his sentence to life imprisonment.
Petitioner filed his first habeas petition in the California Supreme Court in 1975, claiming, among other things, that the prosecution had suppressed evidence suggesting that an unknown second gunman fired the bullet that killed Senator Kennedy. The petition was denied on February 13, 1975. [Lodged Documents ("LD") 13-15].
Later the same year, the Los Angeles Superior Court conducted "special proceedings," pursuant to which a panel of seven independent firearms experts re-examined the ballistics evidence presented at trial. [LD 6 (Exhibits to Petition in Case No. S062258), Exhibit ("Ex.") A (February 5, 1976 Minute Order) & Ex. G (Superior Court's Order for Resting of Exhibits); LD 27 (Partial Reporter's Transcript of Proceedings)]. The examiners reviewed the evidence, conducted tests, and unanimously concluded that there was no indication that the bullets were fired from different guns. The examiners, however, were unable to definitively confirm that the bullets (including the bullet removed from Senator Kennedy's neck) were fired from petitioner's gun. The inability to confirm that petitioner's gun fired the bullets was the result of the physical condition of the gun (which, in turn, was the partly the result of the passage of time), which prevented reproducibility. [LD 6, Ex. B (Comprehensive Joint Report of the Firearms Examiners)].
On April 21, 1997, petitioner filed a habeas petition in the Los Angeles County Superior Court.
On May 1, 1997, petitioner filed a habeas petition in the California Court of Appeal. [LD 2]. The petition was denied on June 17, 1997. The appellate court found that the petition was untimely, that petitioner was estopped from claiming that someone else killed Senator Kennedy after testifying at trial that he did, that there was no violation of petitioner's constitutional rights, and that there was no basis for doubting the correctness of the verdict. [LD 3].
Petitioner filed a habeas petition in the California Supreme Court on June 20, 1997. [LD 4]. Respondent was ordered to file an informal response to the petition, and was granted five extensions of time within which to do so. The petition was denied on May 24, 2000, both as untimely and on the merits. [LD 7].
This petition was filed the next day.
Section 2244(d) imposes a one-year deadline on the filing of a habeas corpus petition by a state prisoner. 28 U.S.C. § 2244(d).
This petition, however, was not filed until May 25, 2000, more than three years after the limitation period expired. Absent grounds for statutory or equitable tolling, delayed accrual, or some other exception to the statute of limitation, this petition is time-barred.
The limitation period does not run while a properly filed state application for post-conviction relief is pending. 28 U.S.C. § 2244(d)(2);
Petitioner filed a petition in the Los Angeles County Superior Court on April 21, 1997, with four days of the limitation period remaining. That petition was denied on April 30, 1997. Thus, petitioner had until May 5, 1997 to file his federal petition.
As set forth above, petitioner also filed habeas petitions in the California Court of Appeal and the California Supreme Court. Both of those petitions, however, were denied in part as untimely. [LD 3 at 2-5 & LD 7].
When the California courts deny a petition as untimely, the petition is not "properly filed" for purposes of statutory tolling.
Petitioner argues that the timeliness requirements are not, or were not at the time the state court imposed them, adequate and independent state procedural rules, and as a result, they are insufficient to prevent statutory tolling. [DN 135 (Opposition to Motion to Dismiss) at 6-20]. The principles of procedural default upon which petitioner relies, however, do not apply to statutory tolling.
As a result, unless petitioner is entitled to equitable tolling or delayed accrual under 28 U.S.C. §2244(d)(1)(D), the limitation period expired on May 5, 1997.
The limitation period also can be equitably tolled. Petitioner is entitled to equitable tolling only if he shows "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way."
Petitioner alleges that he is entitled to equitable tolling because he was diligently pursuing his claims through the state courts. [DN 153 (Petitioner's Supplemental Brief on Equitable Tolling) at 4]. Although petitioner may have been diligent, at least in filing and prosecuting his state habeas petitions, diligence alone is not enough to warrant equitable tolling. Petitioner also must show that an extraordinary circumstance prevented him from filing his federal petition within the statutory deadline.
While unfortunate, petitioner's predicament is not a result of circumstances beyond his control. No external force was the proximate cause of petitioner's untimely filing of this petition. Instead, petitioner's plight is a result of his (and his counsel's) choice to wait for the outcome of each of his three state habeas petitions before filing a petition in this Court, rather than to file a federal petition and seek a stay so that he could exhaust his state remedies as to any unexhausted claims.
Although petitioner's counsel made an unsound tactical decision — namely, to pursue additional collateral proceedings in state court in 1997 before filing a federal petition — this simple tactical error did not amount to the type of egregious or extraordinary misconduct sufficient to warrant equitable tolling.
Petitioner's allegations regarding the belated discovery of exculpatory evidence raise the possibility that the limitation period did not begin to run until the date on which petitioner knew or should have known the factual basis for his claims.
A reporter named Stanislaw Pruszynski, who was at the Ambassador Hotel on the night Senator Kennedy was shot, inadvertently left his tape recorder on and recorded the shooting. Petitioner alleges that Pruszynksi's recording is a "key piece" of evidence that "demonstrates that thirteen shots were fired on the night Senator Kennedy was killed." [DN 153 at 4-5]. According to petitioner, the recording was suppressed by government authorities, was not discovered by petitioner until 2001, and was not analyzed by petitioner until 2005 because the technology required to perform the analysis was not available until then. [DN 153 at 5-6].
Contrary to petitioner's contention, this audio recording was available and could have been discovered in 1988, when nearly all law enforcement records regarding Senator Kennedy's assassination were released to the public as part of the California State Archives. [
Furthermore, even assuming the truth of petitioner's allegation that he could not have discovered the recording by diligent effort until 2001, petitioner did not need the recording to prepare and file his state or federal petitions. To the contrary, petitioner filed this petition in 2000, a year before he says he discovered the Pruszynski recording, and five years before the recording allegedly was analyzed with the newly available technology supposedly required to properly evaluate it. Because petitioner was able to file this petition without the Pruszynski recording, it could not have been a necessary factual predicate to any claim contained in either his state or federal petitions.
Petitioner alleges that the prosecution suppressed evidence of a bullet fragment removed from Senator Kennedy's head during the autopsy and preoperative police photographs of external wounds; substituted a "fake" bullet for one of the actual bullets; conspired with the Los Angeles Police Department ("LAPD") to alter the forensic evidence; suppressed evidence that the gun matched to the bullets at trial was not his, based upon a discrepancy between the serial number listed on the evidence envelope and the serial number on petitioner's gun; delayed disclosure of the autopsy report; and suppressed evidence of two bullet holes in a door frame at the murder scene, which petitioner alleges to be proof of a second gunman because all eight bullets from petitioner's gun were otherwise accounted for. [Petition at 9-25, 25-49, 49-56, 56-104, 107-132].
Delayed accrual is not appropriate on these claims because all of the evidence petitioner relies upon was known to petitioner long before the limitation period expired.
Most of the evidence petitioner cites as the basis for his claims was known at the time of trial. For example, petitioner relies heavily on Thomas Noguchi's 1968 autopsy report [
It is worth noting that all of the facts upon which petitioner's claims are predicted are the very same facts presented in his state habeas petition. [
The same analysis applies to petitioner's claims of ineffective assistance of counsel. The critical facts relevant to petitioner's claims were known, or could have been known, in 1988 when the state archives were made public. At the latest, the predicate facts were known by April 21, 1997, when petitioner filed his state habeas petition raising the same claims based upon the same evidence (other than the Pruszynski recording) as presented in this federal petition. [
Petitioner contends that the statute of limitation does not bar consideration of his petition because he is actually innocent. [DN 153 at 18-57; DN 180 at 7-36].
The Supreme Court recently held that a credible showing of actual innocence constitutes an exception to the bar of the statute of limitation.
The court's analysis necessarily includes an assessment of "the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial."
In order to provide context for evaluating petitioner's new evidence, a brief summary of the evidence presented at trial is necessary.
He is a Palestinian Arab. He was born in 1944 in New Jerusalem, and in 1948 he and his family moved to Old Jerusalem where they remained until coming to the United States in 1956. Throughout his eight years in Old Jerusalem there were intermittent bombings. He attended school there. His family lived under poor conditions in Old Jerusalem (e.g., the whole family resided in one room with grossly inadequate toilet facilities). He was told they were living as they were because "The Jews kicked us out of our home." He was also told of a massacre in which 250 people including children were slaughtered in cold blood by the Jews. While living in Old Jerusalem he went to a well for some water, and when the bucket came up it contained a hand and it sickened him. On one occasion he saw the exploded remains of a grocer he knew. In 1956 he heard about aggression by Israel against the Arabs in the Suez Canal. About a year after they came to the United States his father returned to Jordan. In 1963 defendant graduated from high school and subsequently attended college, but was dismissed in 1965 after missing classes. He thereafter worked with horses but left his job in 1966 and did not find another job for a year. He read everything available on the Arab-Israel conflict and on the occult, in which he became interested in 1965. He joined the Rosecrucian Order in 1965. He performed several experiments such as concentrating on a mirror and seeing the face of Robert Kennedy instead of his own.
In support of his claim that he falls within the actual innocence exception to the statute of limitation, petitioner relies on the following evidence: an audio analysis of the Pruszynski tape recording concluding that more than eight shots were fired; eyewitnesses who said that petitioner was in front of rather than behind Senator Kennedy, and too far away to have inflicted the fatal wounds; witnesses who heard more than eight shots and eyewitnesses who saw a second shooter; ballistics evidence demonstrating that the bullet identified as the "Kennedy neck bullet" was not fired from petitioner's gun; and the opinion of Dr. Daniel Brown that petitioner was subjected to mind control or hypno-programming. [DN 180 at 15-35;
The evidence regarding the possibility that there were more than eight shots fired, problems with the ballistics evidence, and eyewitnesses is intended to show that although petitioner was in the kitchen pantry and fired his gun at Senator Kennedy, he did not fire the bullet that ultimately hit and killed Senator Kennedy; rather, a second shooter fired the Kennedy neck bullet and is responsible for the death of Senator Kennedy. The psychological evidence is intended to show that petitioner was not responsible for the murder of Senator Kennedy because he was essentially unconscious at the time he fired his gun and was acting under the psychological manipulation of an unnamed person or persons. Thus, on petitioner's theory, whether or not petitioner fired the bullet that killed Senator Kennedy, he is not liable for the murder.
In 2005, Philip Van Praag examined the Pruszynski recording and identified thirteen distinct "shot-sounds" on the tape. Based upon his analysis, Van Praag concluded that two different guns had been discharged — petitioner's, which fired eight shots from east to west, and a different gun, which fired five shots from west to east. According to petitioner, Van Praag's analysis "conclusively demonstrates that there was in fact an additional shooter" because petitioner's revolver could only fire eight shots. Van Praag also opined that some of the shots were fired so close together in time that they could not have come from the same weapon. [DN 153 at 38-40, Ex. A (Joling Declaration); DN 180, Ex. C (Van Praag Declaration)].
Van Praag's opinion is far from "conclusive" evidence of a second gunman because other experts analyzing the Pruszynksi recording have reached contrary conclusions. [LD 17 (Mel Ayton, How the Discovery Channel Duped the American Public About the RFK Assassination Acoustics Debate, George Mason University's History New Network, November 20, 2007); LD 18 (Steve Barber, The Robert F. Kennedy Assassination: The Acoustics Evidence, George Mason University's History News Network, March 25, 2007; LD 23 (Philip Harrison: Summary Curriculum Vitae); LD 24 (analysis of the Pruszynski Tape by Acoustics Expert Philip Harrison, Appendix B to Mel Ayton, The Forgotten Terrorist: Sirhan Sirhan and the Assassination of Robert F. Kennedy (Potomac Books, 2007)].
Petitioner alleges that twelve or more eyewitnesses could have testified that they observed petitioner to be in front of Senator Kennedy and at least one foot away from him at the time of the initial gunshot. He also alleges that witnesses could have testified that petitioner's hand was pinned down after he fired two or three shots. Petitioner contends that this evidence would have proven that he could not have shot Senator Kennedy because Senator Kennedy was shot point blank from behind. [DN 180 at 20-24 & Ex. A (summary of eyewitness evidence regarding petitioner's position); DN 195 at 30-36 (discussion of how eyewitness evidence would demonstrate petitioner's innocence)].
One flaw with the eyewitness evidence relied upon by petitioner is that none of the witnesses actually saw petitioner at the moment Senator Kennedy was first shot. All were looking elsewhere, mostly at Senator Kennedy, and were startled by the sound of what many believed was a firecracker. The witnesses on whom petitioner relies saw the gunman stepping or rushing toward Senator Kennedy, then reaching or lunging toward Senator Kennedy, extending his hand toward Senator Kenney as if to shake his hand, pointing a revolver toward Senator Kennedy, and then firing that gun at Senator Kennedy. They also saw Senator Kennedy move his hand up toward his face immediately after the first shot. [DN 180, Ex. A]. These eyewitness accounts are consistent with the testimony presented at trial regarding the movements of the gunman and Senator Kennedy immediately before and after the first shot. [
Many of the witnesses on whom petitioner relies — namely, Edward Minasian, Juan Romero, Valerie Schulte, Karl Uecker, and Frank Burns — actually did testify at petitioner's trial that petitioner was in front of Senator Kennedy at the time of the shooting. [RT 3095-3097, 3155-3156, 3188-3189, 3396-3399, 3426-3427]. Thus, petitioner's position in front of Senator Kennedy at the time of the shooting is not new evidence, but rather evidence that the jury heard and concluded was either inaccurate, or true but consistent with petitioner having fired the fatal shot.
Perhaps most importantly, the eyewitness testimony consistently described Senator Kennedy as turning his head just as the shots were fired. That explains how the bullet could have struck the back of his head even if petitioner was technically "in front" of Senator Kennedy. [
According to petitioner, evidence of his innocence can be found in eyewitness accounts stating that petitioner's hand was pinned down by Minasian and Uecker after petitioner fired two or three shots and consequently petitioner's remaining shots were fired wildly around the pantry. [DN 180 at 23-24, Ex. B (summary of witness accounts)]. According to petitioner, this evidence demonstrates he could not have been in a position to fire the four close range shots that struck Senator Kennedy, because those shots were fired from behind and below Senator Kennedy. Petitioner's argument, however, is merely a new argument based upon the evidence introduced at trial. The evidence upon which it is based consists of the testimony of Minasian, Uecker, and Martin Patrusky. [
In any event, this is not affirmative evidence that petitioner did not shoot Senator Kennedy. Senator Kennedy suffered three gunshot wounds, and all wounds were sustained in "rapid succession." [RT 4531-4533]. Several witnesses, including Minasian, testified that petitioner fired three or four shots at Senator Kennedy before Uecker grabbed his arm, and that petitioner fired four or five more shots before the gun was pinned to the steam table. [RT 3097-3100, 3123-3124, 3130-3133, 3272, 3398-3399, 3452, 3474].
Petitioner argues that none of the witnesses placed his gun within inches of Senator Kennedy, so he could not have fired the fatal shot. Petitioner relies on Uecker's testimony, but such reliance is misplaced because Uecker's account of the shooting is especially incriminating. Uecker testified that he held Senator Kennedy's right hand after his speech and guided him through the kitchen pantry on the way to the press room. [RT 3088]. Senator Kennedy stopped and let go of Uecker's hand several times in order to shake hands with kitchen staff. [RT 3090-3094]. Uecker remained within arm's reach of Senator Kennedy, with Senator Kennedy immediately to Uecker's left. When Senator Kennedy finished shaking hands with the last man, Uecker grabbed his hand and said, "Let's go now, Senator." [RT 3097]. Uecker turned toward the right and immediately felt someone brush in front of him, positioning himself between Uecker and the steam table. [RT 3095, 3097]. Uecker heard what sounded like a firecracker, then heard a shot. Senator Kennedy began to "fall out of" Uecker's hand. At this point, Uecker saw petitioner right in front of him holding a gun. [RT 3097]. Uecker grabbed for the gun and ended up forcing petitioner down onto the steam table, but petitioner continued to shoot. [RT 3097-3098]. Because Uecker was near enough to be touching Senator Kennedy and petitioner passed so closely in front of Uecker that he brushed against him, Uecker's testimony actually undermines petitioner's contentions. From Uecker's testimony, the jury could have concluded that when petitioner stepped in front of Uecker, who was within arm's reach of Senator Kennedy, petitioner was close enough to have fired the fatal shot.
Nevertheless, petitioner urges the Court to consider evidence that in 1975 Uecker said that petitioner's gun never came closer than 1.5 feet from Senator Kennedy. [
Evidence that Uecker (or other eyewitnesses) did not see petitioner in the precise position that the autopsy report concluded the shooter must have fired from does not demonstrate petitioner's innocence. As a general matter, eyewitness testimony is notoriously inaccurate, even under far less chaotic circumstances.
Moreover, the ballistic evidence presented at trial corroborated the extensive eyewitness testimony that petitioner shot Senator Kennedy. Expert testimony showed that the three bullets removed from the victims, including the bullet that struck Senator Kennedy's neck, were fired from petitioner's revolver, and that these bullets were .22 caliber Mini-Mag ammunition.
This "new" evidence that the eyewitnesses all agreed that petitioner fired his gun at Senator Kennedy but placed petitioner a foot or so farther away from Senator Kennedy than the autopsy report indicated he was, is not affirmative evidence of petitioner's innocence. A jury presented with such testimony might find that the eyewitnesses were not paying attention to petitioner's exact location or were unable to accurately judge distances as a result of the crowded and chaotic scene.
Petitioner apparently believes that the observations of these eyewitnesses also eliminate him as the shooter because the forensic evidence showed that the shots were discharged at an upward angle, but no witnesses testified that petitioner's arm and gun were in any position other than a horizontal one. [DN 180 at 23]. Petitioner's overinflated argument is easily punctured. First, the evidence showed that the gunshot wounds were inflicted at merely a "very slightly upward" angle. [RT 4525]. Second, as discussed, the eyewitnesses on whom petitioner relies did not actually see Senator Kennedy get shot, and none were able to describe the exact position of petitioner, the gun, or Senator Kennedy at the crucial moment. [
In sum, nothing about these eyewitness accounts rules out petitioner as the shooter.
Petitioner alleges that contrary to the trial evidence, no match was ever made between the neck bullet actually removed from Senator Kennedy and petitioner's gun. Petitioner points out that Dr. Noguchi removed a bullet from Senator Kennedy's neck during the autopsy and placed a "TN31" mark on its base, but he was never asked to identify this bullet during his testimony. [DN 180 at 24-30]. The bullet was admitted into evidence as Exhibit 47 at trial based upon the testimony of criminalist DeWayne Wolfer, who testified that he compared the neck bullet and two bullets taken from other victims to test bullets fired by petitioner's gun and concluded that they had been fired from the same gun. [RT 4128-4194]. Because petitioner's counsel stipulated to the authenticity of the bullet, Wolfer was never asked whether Exhibit 47 bore the "TN31" mark. [RT 4129, 4157-4160].
Petitioner relies on the fact that Patrick Garland, one of the independent examiners in the 1975 reexamination, described Exhibit 47 as having the markings "DW" and "TN" on its base, but did not mention "31." Petitioner points out that Garland also described the bullet that allegedly struck Goldstein as bearing the mark "6" even though the doctor who removed the bullet marked it with an "x." According to petitioner, this discrepancy demonstrates that Wolfer "substituted" bullets and lied when he testified that the bullets from the victims matched the test bullets fired from petitioner's gun. [DN 180 at 24-30 & 38-43].
To begin with, the problems with the ballistics evidence involve the bullet that struck Senator Kennedy in the armpit and traveled to his neck. This was not the fatal bullet. Rather, the bullet that penetrated Senator Kennedy's brain from behind his right ear was the cause of death. [RT 4517, 4524-4526, 4529, 4534].
During the 1975 reinvestigation of the ballistics evidence, Wolfer testified at length. He was asked to find his own initials on the neck bullet, which he did, stating they were on the "front of the bullet." [LD 27 at 247-250]. Writing belonging to both Wolfer and Dr. Noguchi was on the Coroner's evidence envelope containing the bullet; and Dr. Noguchi's writing was already on the envelope when Wolfer first received it before trial. [LD 27 at 261-264]. When Garland prepared his evidence index for the 1975 reinvestigation, he noted the makings "TN" and "DW"
Petitioner further alleges that Wolfer used a different revolver with a different serial number to test the bullets. [DN 180 at 28, 42-43]. This claim is based upon the fact that the evidence envelope containing the test bullets used to match the victim bullets to the gun retrieved from petitioner at the crime scene (serial no. H-53745) referenced a weapon with a serial number from a different gun that was not petitioner's (serial no. H-18602). Despite the mismarking of the envelope, the trial testimony was clear that the test bullets introduced as Exhibit 55 had been fired from petitioner's revolver (Exhibit 6) and that Wolfer compared those test bullets with the victim bullets. [RT 4156-4160]. In addition, during the 1975 reinvestigation, Wolfer testified in detail about the erroneous serial number marked on the envelope for Exhibit 55. He explained that on June 5, 1968, he obtained the revolver taken from petitioner (serial number H-53725), loaded it with eight bullets of the identical ammunition type removed from the victims, fired all eight test rounds into a water tank, and recovered seven of them. On that day or the following day, Wolfer compared one of the test rounds to the victim bullets. [LD 27 at 60-61, 107, 127-128, 170-171, 175, 177, 183, 193, 195-196, 335, 339]. Petitioner's gun was taken to the Grand Jury on June 6, 1968, and Wolfer testified before the Grand Jury on June 7, 1968. [LD 27 at 128]. Wolfer placed four of the test bullets into a Grand Jury evidence envelope [LD 27 at 114, 129; LD 6, Ex. L (photograph of envelope)], and took the remaining three bullets back to his office in case further testing was needed. Those three remaining bullets were entered into evidence at petitioner's trial (Exhibit 55). [LD 27 at 103-105, 113-114, 120-123, 128-132, 136-139]. Grand Jury Exhibit 5B was dated on June 7, 1968, and contained the correct serial number from petitioner's gun (H-53725). [LD 27 at 179, 184-185, 188-189;
Wolfer explained that on June 10, 1968, shortly after petitioner's gun had been placed in the custody of the Superior Court, Wolfer determined that he needed to run two additional tests, requiring either petitioner's gun or one of an identical make and model. In particular, Wolfer needed to conduct a sound test (to determine whether it was possible that purported witnesses had heard gunshots from a certain location) and a gunshot residue test (to determine the distance from which the gun was fired when Senator Kennedy was hit). [LD 27 at 133, 159-160, 166, 175-176; RT 4181-4182, 4223]. Petitioner's counsel was informed at trial that a different gun was used to conduct these additional tests. Moreover, Wolfer testified that he used a different gun, stating that he employed "a gun which was the exact make and model and within a very close serial number of [petitioner's] weapon" to conduct the muzzle distance test. [RT 4179-4182]. Petitioner's counsel cross-examined Wolfer on this point. [RT 4200-4206, 4223-4224].
In his 1975 reinvestigation testimony, Wolfer explained that he entered the wrong serial number on Exhibit 55 by mistake. He said that at the time of trial, several months after the test-firing, he requested the serial number from petitioner's gun, but was given the number of the gun taken from the Los Angeles Police Department's property department for use in the sound and muzzle distance tests. Consequently, Wolfer wrote that number (H-18602) by mistake. [LD 27 at 122-125, 140, 174-175, 185]. Wolfer clarified that he only test-fired petitioner's gun to obtain bullets for comparison purposes. [LD 27 at 175].
As for petitioner's contention that the 1975 reinvestigation panel concluded that the Kennedy neck bullet (as well as the bullets from victims Goldstein and Weisel) definitely were not fired from petitioner's gun [DN 180 at 28], petitioner misrepresents the final report. Contrary to petitioner's contention, the panel unanimously concluded that the three bullets were consistent with having been fired from the same gun, but the panel explained that a conclusive match to petitioner's gun was impossible due to extrinsic factors, such as "barrel fouling" and "possible loss of fine detail over intervening years." [LD 6, Ex. B].
In sum, petitioner has pointed out some gaps in the ballistics evidence. At best, however, petitioner has raised a question whether the bullet shown to Wolfer that he testified matched bullets fired from petitioner's gun was the same bullet that had been removed from Senator Kennedy's neck. Petitioner, however, must do more. Nothing petitioner has presented affirmatively shows that the bullet was in fact substituted for another, that the bullet identified as consistent with being shot from petitioner's gun was not the same as the one removed from Senator Kennedy's neck, or that there actually was an additional bullet.
Petitioner relies on two witnesses, Evan Phillip Freed and Booker Griffin, who said that they saw a second shooter. [
According to Freed's 1992 affidavit (made nearly a quarter of a century after Senator Kennedy's assassination), Freed arrived in the pantry area five minutes before Senator Kennedy finished his speech. He noticed two men of "very similar" appearance "moving about the pantry area." The men "appeared to be looking at each other from time-to-time." One of the men was petitioner. Freed was four feet from Senator Kennedy when the shooting began. The man who had been in the pantry with petitioner during the speech pointed a gun at an upward angle toward Senator Kennedy. From the sound, it appeared to Freed that the first shot came from this man's gun. In the background, six or eight feet away, Freed saw petitioner firing a gun in the direction of Senator Kennedy. As the crowd rushed toward petitioner, they passed by the second gunman. The second gunman backed away. Freed then observed the second gunman running toward him, without a gun. Another man ran behind him in the same direction yelling, "stop that guy, stop him." The second gunman passed through the door, pursued by the other man. Freed never saw either man again. Freed told his story to the police, who suggested that he may have misheard the pursuer of the alleged second gunman. [Petition at 129-131].
Next, according to petitioner, Griffin said in a 1987 interview with author Philip Melanson that he was at the Ambassador Hotel on the night of the assassination and he saw petitioner with a taller man and a woman in a polka dot dress. [
Petitioner relies on witness Nina Rhodes-Hughes, who also was in the kitchen pantry at the time of the shooting.
The passage of nearly a half a century diminishes the reliability of Rhodes-Hughes's memory, and therefore, of her declaration. This is especially so given that there are no contemporaneous statements by Rhodes-Hughes that corroborate her current recollection of events now 45 years in the past.
In any event, Rhodes-Hughes's observations are similar to those previously discussed that suggest a second gunman may have been present. As discussed in detail below, even if petitioner's evidence were sufficient to permit a jury to find that there was a second shooter, it is not sufficient to warrant the conclusion that no reasonable jury apprised of the facts on which petitioner relies would have found petitioner guilty of killing Senator Kennedy, either as the principal, a conspirator, or an aider and abettor.
Considered together, petitioner's evidence does not approach the showing required by
It is noteworthy that petitioner has never denied — and could hardly do so in light of the evidence, including the fact that he was captured in the process of shooting Senator Kennedy — that he went to the Ambassador Hotel with a gun, waited in the pantry, approached Senator Kennedy with his gun drawn, and fired it eight times. Further, none of petitioner's new evidence discussed above undermines the extensive evidence of premeditation, including, for example, petitioner's statement in April 1968 to Alvin Clark that he was "planning on shooting" Senator Kennedy [RT 4012-4015], petitioner's "stalking" of Senator Kennedy by appearing at the Ambassador Hotel on June 2, 1968 [RT 4033-4049], petitioner's obtaining a gun, purchasing ammunition, and practicing at a target range on the day before the murder [RT 3567-3571, 3591-3600, 3622-3633, 3656-3662, 3667-3676], or petitioner's possession of newspaper clippings about Senator Kennedy when he was apprehended in the act of shooting him. [RT 3521-3522, 3526-3531].
Furthermore, petitioner himself has denied the plausibility of this second-shooter theory. During a parole hearing, petitioner stated:
[LD 8 (Bill Farr, After 17 Years, "Ifs" Still Haunt Sirhan: Assassin of Robert F. Kennedy Up for His 7th Parole Hearing, Los Angeles Times, June 24, 1985].
Finally, even if petitioner could prove that a second gunman shot Senator Kennedy, he still would be guilty of murder under California law. Evidence about a second gunman in the pantry does not negate the testimony of numerous eyewitnesses that petitioner shot Senator Kennedy, the documentary evidence that petitioner planned to shoot Senator Kennedy, the evidence of petitioner preparing to put his plan into action by obtaining a gun and practicing shooting, or any of his admissions to intentionally shooting Senator Kennedy. Even if the second shooter's bullet was the one that killed Senator Kennedy, petitioner would be liable as an aider and abettor.
The foregoing analysis assumes that petitioner knew about the second shooter, which is both the only logical inference and the only scenario supported by petitioner's most favorable evidence. Freed, the primary witness supporting a second shooter theory, said that he saw two men, one of which was petitioner, who appeared to be together, exchanging glances while they waited in the pantry. [Petition at 130]. Likewise, Griffin, the other eyewitness who allegedly saw a second shooter, said that he saw petitioner with the second gunman. He also saw petitioner shoot Senator Kennedy. [
The alternative scenario — that unbeknownst to petitioner, a second unrelated person coincidentally showed up in the kitchen pantry at exactly the same time as petitioner did and proceeded to shoot Senator Kennedy at close range with the same type of gun and ammunition as petitioner was using, but managed to escape the crowded room without notice of almost any of the roomful of witnesses, lacks any evidentiary support. Petitioner's counsel does not expressly advance such a far-fetched scenario. Accordingly, the Court does not address it.
Of course, petitioner does contend that he was subjected to "hypnotic programming," in which case the existence of another unknown shooter might exculpate him. As discussed below, however, petitioner has not presented sufficient reliable evidence that he acted under the influence of hypnotic programming on the night he shot Senator Kennedy.
Petitioner submits the declarations of Dr. Daniel Brown, an associate clinical professor of psychology at Harvard Medical School, and Professor Alan Scheflin, a law professor at Santa Clara University Law School. In his November 17, 2011 declaration, Scheflin states that based upon his research, including review of thousands of declassified Central Intelligence Agency ("CIA") documents, the "concept of hypnotic programming has been well known for more than a century," the American military began experimenting with mind control in the 1940s, and it can be, and has been, used to induce antisocial conduct in humans. [DN 180, Ex. G (Declaration of Alan Scheflin) at 2-5].
In his declaration filed on April 23, 2011, Brown states that in May 2008, he began a detailed forensic psychological assessment of petitioner at the request of petitioner's counsel, who asked Brown to render an expert opinion as to whether or not petitioner "was a subject of coercive suggestive influence that rendered his behavior at the time of the assassination of Senator Robert F. Kennedy involuntary and also made him amnesic for his behavior and role in the assassination." [DN 153, Ex. I at 1-2]. Brown interviewed petitioner and performed numerous forensic psychological tests on him for more than 60 hours over a three year period. He also reviewed numerous files related to petitioner's case. [DN 153, Ex. I at 2-3]. Based upon his examination and test results, Brown concluded that petitioner is "the rare type of individual who could have been easily influenced/induced by others to engage in uncharacteristic actions for which he would subsequently become amnesic." [DN 153, Ex. I at 4]. Brown directly observed petitioner switch into a distinctly different "alter personality" state that responds in a robot-like fashion upon cue and adopts the behavior of firing a gun at a firing range, a personality state Brown refers to as "range mode." This personality state occurs only while petitioner is in a hypnotic state and in response to certain cues. Brown opines that this cue-specific "alter personality" state is likely the product of coercive suggestive influence and hypnosis. [DN 153, Ex. I at 4]. According to Brown, petitioner's test results place him in the top 7 percent of individuals in hypnotizability. [DN 153, Ex. I at 5-6].
In preparing his opinion, Brown gathered numerous "facts" from petitioner about petitioner's activities on the day of the assassination. According to petitioner, he did not plan to go to the Ambassador Hotel to kill Senator Kennedy. Rather, he went to look for girls, on the suggestion of "some guys" who said there would be a big party there. Petitioner found the bar at the hotel. He had an unusual interaction with the bartender who communicated with him by using non-verbal signals. Petitioner had the feeling that they had a relationship, but could not remember the bartender. After petitioner drank alcoholic drinks he became very tired and he wanted to go home. He went to his car but realized he was too tired to drive, so he went back to the hotel to find coffee. [DN 153, Ex. I at 8-10].
When petitioner returned to the bar, the bartender told him there was no coffee. An attractive woman with a polka dot dress was at the bar talking to the bartender. She said she knew where the coffee was. She took petitioner by the hand and led him to the ante-room behind the stage where Senator Kennedy was speaking. They discovered a large coffee urn and poured coffee from it. They were interrupted by a man in a suit who told them that they could not stay there and instructed the woman in the polka dot dress to go to the kitchen. Petitioner was attracted to the woman, so he followed her. Petitioner was fascinated with the woman and thinking about seducing her. [DN 153, Ex. I at 10-11].
The woman suddenly looked over petitioner's head, then tapped or pinched petitioner. It was startling to be pinched, and it felt sharp like a pin or fingernail. The woman pointed and said "look." Petitioner was puzzled about what she meant, then people begin to come through the back doors. The woman put her arm on petitioner's shoulder. Then petitioner had a "flashback" to the shooting range. He did not know that he had a gun. But he saw a target. Petitioner loaded his gun and saw circles. He tried to hit the target and fired one or two shots before snapping out of it and thinking, "I'm not at the range," and then "what is going on?" People grabbed petitioner. He did not realize until later that Senator Kennedy had been shot and that he was the shooter. [DN 153, Ex. I at 11-13].
Brown gathered facts that petitioner's family and friends said that petitioner "underwent a fundamental personality change after a fall from a horse while racing at the Corona race track in September 25, 1966." Petitioner's medical records, however, showed no brain injury. After the fall, petitioner was missing for two weeks. According to Brown, these facts "suggest that the horse fall was drug-induced and staged, and that Mr. Sirhan was taken to an unidentified hospital unit for two weeks, and whatever was done to him caused a fundamental change in his personality." [DN 153, Ex. I at 14-17].
In conclusion, Brown states:
[DN 153, Ex. I at 18].
In his supplemental declaration, Brown recounted that during hypnosis, petitioner recalled being taken to a police firing range and being shown how to shoot at human targets and vital organs. Petitioner remembered the name of the firing range and described a man with a moustache and a foreign accent who introduced him to the idea of killing government officials. According to Brown, an entry in police report corroborates that not only did such a police firing range exist, but that petitioner visited that police firing range and signed the register days before the assassination. He was accompanied by a man with a turned down moustache and a foreign accent who refused to identify himself or sign the register. [DN 180, Ex. H at 4-5].
Brown explains that on the night of the assassination, all that was required was for petitioner to show up at a designated place induced by post-hypnotic suggestion, to be led to the site by a handler, and then to adopt "range mode" upon cue. Brown states that such behavior is not difficult to induce in an individual who, like petitioner, is extremely vulnerable to hypnotic suggestion. At the time of the assassination, petitioner thought he was firing at stationary circle targets at a firing range. He did not know that he was firing at Senator Kennedy. [DN 180, Ex. H at 14-15].
As further support for his theory that petitioner was programmed to assassinate Senator Kennedy, and therefore is not legally responsible for his acts, Brown notes that:
[DN 180, Ex. H at 20-21]. Brown also identifies "new evidence" supporting his theory, including:
[DN 180, Ex. H at 22-23].
Finally, Brown opines that petitioner's admissions, including his admission at trial, "exemplify a specific form of false confession," namely an involuntary internalized false confession. [DN 180, Ex. H at 23-24].
Brown agrees that most individuals cannot be induced to commit wrongful acts with hypnosis. In his opinion, however, petitioner is within the small 4 or 5 percent of individuals who are highly hypnotizable and socially compliant, with a high dissociative coping style, all which "predict strong vulnerability to undue suggestive influence or coercive persuasion, hypnotic and non-hypnotic." [DN 180, Ex. H at 13].
Brown notes that Dr. Simson-Kallas at San Quentin was asked to interview petitioner by the supervising psychiatrist because the supervising psychiatrist did not find any evidence to support the defense and prosecution experts' opinions that petitioner suffered from paranoid schizophrenia. Dr. Simson-Kallas concluded that there was no evidence for schizophrenia and that petitioner might have been "programmed." He was then taken off the case before he was able to further evaluate the question of hypnotic programming. [DN 180, Ex. H at 5-6].
On the other hand, respondent cites evidence suggesting that many or most scientists agree that hypnotized persons retain ultimate control over their actions and cannot be programmed to commit antisocial acts against their will. [DN 174 (Respondent's Supplemental Brief on Actual Innocence) at 12-13]. Brown himself concedes that there are two schools of thought regarding hypnosis and that experts disagree on the very concept of what hypnosis is and what is able to achieve. [DN 180, Ex. H at 8-9].
As respondent points out, the Ninth Circuit has said that, "it is clear that the mere presentation of new psychological evaluations ... does not constitute a colorable showing of actual innocence."
Even considering all of petitioner's new psychological evidence, he still fails to make the requisite showing. Petitioner's theory that he was subject to mind control may be intriguing, but in order to meet the
Furthermore, petitioner's own recitation of the events leading up to the murder are vague and fail to demonstrate that he actually was the victim of hypno-programming by some unnamed person or entity. Petitioner's recently recalled memories about the bartender, the woman in the polka dot dress pinching him, and entering "range mode," are far from compelling evidence of his innocence. Petitioner's recitation of the events of the night he shot Senator Kennedy amount to self-serving recollections that, even if believed, do no more than suggest a sinister plot and a possibly exculpatory theory — namely, that petitioner was under a hypnotic trance and did not intentionally shoot Senator Kennedy. Whether or not the theory that a person can be hypnotized to commit murder and then to lose his memory of committing that murder is scientifically credible, and the Court assumes that it is solely for purposes of this analysis, petitioner has not provided any reliable evidence that this actually occurred. Evidence of a mysterious woman in a polka dot dress, petitioner's "feeling" that he might have had a relationship with the bartender who used non-verbal signals such as nodding his head and making eye contact, petitioner's feeling "tired" after drinking alcohol, his following a woman whom he found attractive into the pantry,
Moreover, the opinions of Brown and Scheflin are inconsistent with, and substantially contradicted by, the various psychiatrists who examined petitioner forty years earlier, contemporaneously with the crime. Unlike the psychological experts who testified at petitioner's trial, Brown and Scheflin were unable to personally observe and examine petitioner in 1968 to render opinions about his then-current mental state. Thus, Brown's retrospective opinion based upon tests assessing petitioner's mental condition forty years after the fact are of negligible weight.
Based upon the evidence presented, and contrary to petitioner's argument, it is not likely that jurors would believe a defense that he was an involuntary actor who shot Senator Kennedy as a result of sophisticated hypno-programming and memory implantation techniques that rendered him unable to consciously control his thoughts and actions. Petitioner has presented a diverting — albeit farfetched — theory. But it is no more than that.
In sum, petitioner has presented evidence that arguably casts some doubt on the details or the reliability of some of the inculpatory evidence presented at trial (such as the ballistic evidence), evidence suggesting the possibility that another shooter could have been involved,
For the foregoing reasons, it is recommended that respondent's motion to dismiss the petition be granted.
28 U.S.C. § 2244(d)(1).
In addition, the prosecution introduced evidence of an envelope bearing the notation "RFK must be disposed of like his brother was;" a notebook containing "a prediction of America's downfall, an attack upon its leaders, and comments relating to `doing away' with those leaders;" and a second notebook which included notations such as "R.F.K. must be assassinated" and "Ambassador Goldberg must die." The handwriting on the envelope and in the notebooks was identified as petitioner's.
