A Lie Too Big to Fail

by Lisa Pease

  221 Kaiser, p. 324.

  222 Kaiser, p. 345.

  223 FBI interview of Jack Davies taken 6/7/68, dated 6/12/68.

  224 Houghton, p. 266.

  225 August 27, 1968 entry in the daily log of the Commander of Detectives for the Bureau of Investigations.

  226 Houghton, p. 266.

  227 SUS Final Report, p. 842.

  228 Sirhan Trial Transcript, pp. 2651–2652. The following dialog is excerpted starting from this point in the transcript.

  TRIAL

  “Most of what ails our criminal justice system lie[s] in unwarranted certitude on the part of police officers and prosecutors and defense lawyers and judges and jurors that they are getting it right, that they simply are right. Just a tragic lack of humility of everyone who participates in our criminal justice system.”

  TRIALS ARE MEANT TO BE ADVERSARIAL AFFAIRS, WHERE ONE SIDE argues for a person’s guilt regarding specific charges and the other side argues for a person’s lack of guilt (as opposed to “innocence”) regarding those specific charges. The entire judicial system is predicated on the belief that through such an adversarial proceeding, the truth will emerge.

  In reality, this is not always the case. The prosecution gets the first opening argument and the last rebuttal, so the prosecution has an advantage in any trial. In a long trial, the prosecution can build their case for days or weeks before the defense has much to say about it. Although jurors are admonished not to form an opinion until both sides have been heard, it’s human nature to do so. The defense can challenge the prosecution and cross-examine the witnesses to attempt to keep the defense’s case alive, but if the defense attorneys are too aggressive in their questioning, this can turn off the jury before the defense has even been able to call its first witness.

  When I sat on a jury, I was appalled that our elected foreman’s first words at the beginning—not the end but the beginning—of deliberations were, “We all agree he’s guilty, right?” There had been no discussion yet of the evidence. No deliberations. Just an assumption that everything the prosecution had said must be true and everything the defense said must be false. Fortunately several of us disagreed. But even so, it was one of the more disturbing moments of my life, because it proved the fallibility of our legal system. Dean Strang, a defense attorney and adjunct professor at the University of Wisconsin made an astute comment about such assumptions in 2016:

  Most of what ails our criminal justice system lie[s] in unwarranted certitude on the part of police officers and prosecutors and defense lawyers and judges and jurors that they are getting it right, that they simply are right. Just a tragic lack of humility of everyone who participates in our criminal justice system.229

  In Sirhan’s case, not only was there a tragic lack of humility by all involved, but there was the perception that Sirhan was definitely guilty because Sirhan had essentially admitted as much. Most people believe that innocent people do not confess to crimes they did not commit. Sirhan’s defense team, from the start, encouraged Sirhan to accept responsibility for a crime he had no memory of committing, claiming that to do otherwise would weaken his case, as it would appear he was simply lying.

  In one of the numerous ironies in this case, in 1966, Grant Cooper had penned an article for the Los Angeles Times titled “Confessions, Cops and the Courts” that opened with a story of a man named George Whitmore, Jr., who had confessed to two murders and a rape after the police found a photo of one of the victims on him. But a woman stepped forward and said the picture was of her, not any of the murder victims, causing “an enterprising young prosecutor” to question the confession. In the end, Whitmore was exonerated. Cooper quoted the prosecutor as having said, in answer to the question of why someone would confess to a crime they didn’t commit, “Call it what you want—brain washing, hypnosis, fright. They made him give an untrue confession.”230 In the article, Cooper listed five cases where false confessions were made and overturned. Years after the Sirhan trial, Cooper signed a sworn statement saying had he been aware of the evidence of conspiracy, he would have mounted a different defense. But evidence of conspiracy had entered the record early and often. Cooper simply ignored it.

  Provably then, people do confess to crimes they didn’t commit, for a variety of reasons. In a scholarly study of cases from 1971 to 2002, Steven Drizin and Richard Leo “identified 125 false confession cases between the years of 1971 and 2002 by combing through electronic media and legal databases, police reports, trial transcripts, articles and books. The study focused on proven false confessions—those that dispositive evidence objectively established were indisputably false because the confessor could not possibly have been the perpetrator of the crime.” In addition, the Innocence Project documented that, of the first 225 cases where a person was exonerated of their crime through DNA evidence, 23% of the convictions were based on false admissions of guilt and 52% were based on invalidated or improper forensics.231

  “Improper forensics” is the generous term to describe what happened in Sirhan’s case under Wolfer’s watch. In fact, less than a month before the trial, the FBI had turned down the request from LAPD to confirm the LAPD’s analysis of the evidence in this case.232 That’s not surprising, given that the FBI’s findings were already at variance with the LAPD’s, notably about the presence of bullet holes in the frames of the pantry doors, which inflated the total bullet count from the LAPD’s eight to at least twelve. By agreeing to reexamine the LAPD’s evidence, the FBI would have been put in the awkward position of having to reject the findings of their own professionals or reject those of the LAPD’s, which would have called the entire case against Sirhan into question. Neither the defense nor the prosecution could have welcomed such a move. In fact, both the defense and the prosecution made sure the jury never learned there was any question about Wolfer’s veracity, or that any of the physical evidence in the case might not have been as presented.

  In this particular trial, there were substantial factors that prejudiced the jury from the start. The public had been told from the first day that Sirhan was guilty, that there was no question of his guilt. Indeed, Sirhan himself had never claimed to be innocent. He claimed only to have no memory of the crime, but he accepted that he “must” have committed it because a number of witnesses saw him fire a gun at Kennedy.

  To compound the matter, the fact that Sirhan’s lawyers had considered pleading him guilty to murder in the first degree in an effort to spare his life appeared in the Los Angeles Times the day before the trial began, before the jurors had been sequestered.233 The front page headline screamed, in large, capitalized type “above the fold,” i.e., in the part seen from every newsstand, “SIRHAN GUILTY PLEA NOW APPEARS LIKELY.” In addition, there had been a radio report on one of the major local radio stations to the same effect.

  The morning of the trial, Judge Walker brought the jurors in one by one to ask what they had seen or heard about the plea. Ten of the twelve jurors had heard something about this, either directly or indirectly from family or friends.

  One of the jurors, Ronald Evans, said he had heard on the radio that the lawyers for Sirhan might plead him guilty. Cooper asked him, “Don’t you feel now … that it would be very difficult for you to find a verdict of second degree or manslaughter?” “Yes,” Evans had answered. “Well, if I understood that broadcast, it said he was going to plead guilty to murder in the first degree. Then it would be hard to bring in a verdict of second degree or manslaughter.” Judge Walker asked Evans if he were told that weren’t true, that the newsman had been speculating, could he keep an open mind? Yes, Evans said, he could. But no one then followed up to tell him that wasn’t true (because, of course, it was), yet the man was allowed to remain on the jury. (Evans didn’t finish the trial though, as his father died during closing arguments. Evans was replaced by an alternate juror.) The other jurors who had heard something about the plea promised it would not affect their judgment. But how could it not?

  In addition, the defens
e team stipulated up front to the jury in their opening statement that their client, Sirhan Sirhan, had killed Robert Kennedy. The only point of this trial was to determine Sirhan’s state of mind at the time. Had he willfully, premeditatedly killed Senator Robert Kennedy, or had some mitigating factor, such as mental illness, played a role? Normally, given that both sides agreed, this would have been merely a penalty hearing. But Judge Walker wanted the appearance of a full trial, fearing the public would demand no less. But what the public would have demanded, had they understood what was being concealed, was a procedure leading to the truth of what had happened.

  When evidence indicating a conspiracy did leak out in court, despite the defense and prosecutions’ efforts to conceal it, it was either ignored or quickly mitigated by the prosecution or, more often, by Cooper, Sirhan’s lead defense attorney. As we saw in the previous chapter, arguing that Sirhan was part of a conspiracy was believed to be a sure way to guarantee a harsher verdict for the defense (as it would presumably demonstrate premeditation) and a nightmare for the prosecution (as it would demonstrate incompetence, in that the other conspirators got away). Even a third party that tried to take over Sirhan’s defense, the Action Committee on Arab-American Relations, saw this trial only as a way to gain publicity for their cause in Palestine. They, too, had neither Sirhan’s nor history’s best interests at heart, but rather an agenda of their own to pursue.234

  The fact is that the truth of what had actually happened in the pantry never had an advocate in that courtroom. The system simply isn’t built to expose conspiracies that benefit neither the prosecution nor the defense. And at some point we have to seriously consider a darker possibility: that the cover-up was deliberate, that one or more people on both the prosecution and the defense fully understood there was a conspiracy, and that those who knew agreed to keep it concealed. That’s actually the simplest explanation for all that happened at the trial.

  On February 13, 1969, at the Los Angeles Superior Court building in downtown Los Angeles, the “people,” i.e., the District Attorney’s office, put forth their opening statement about Sirhan’s guilt in the shooting of Robert Kennedy. A camera hidden in an air conditioning unit transmitted the proceedings to a separate room used as an overflow room for the media.235

  The Judge told the jury that an opening statement is not evidence. In fact, nothing attorneys said, whether from the prosecution or the defense, could be considered evidence. Attorneys can only provide the framework for the case. Sworn witnesses produce evidence. It’s up to the jury to decide if those sworn witness statements are actually facts. It should go without saying that just because someone swears to something under oath doesn’t mean it’s the truth. That’s why perjury charges exist.

  All dialog in this chapter is from the trial transcript unless otherwise noted. In some cases I have excerpted testimony without ellipses and presented witnesses out of order to make a more coherent presentation, a luxury neither the defense nor the prosecution had.

  David Fitts began his opening statement to the jury with Sirhan’s purchase of a gun and bullets. Fitts described how Sirhan had bought “Mini-Mag,” hollow-point bullets from Larry Arnot at the Lock, Stock & Barrel Gun Shop in Pasadena on June 1, 1968.

  Fitts did not, of course, inform the jury in his opening statement that Arnot had told both the LAPD and FBI that he saw two other men with Sirhan when he purchased the ammunition, nor that the owner’s wife, Donna Herrick, also recalled seeing three men who had talked to Arnot that day. Herrick remembered them because the same three men had been in her shop a couple of months earlier inquiring about tank-piercing ammunition. Arnot, Herrick, and her husband Benjamin all told their stories to the FBI.

  The FBI had tried to get Arnot and the Herricks to identify Sirhan’s brothers as the two men with him, but not one of the three would make that identification. But all three were certain Sirhan was one of the three men.

  Predictably, since they had evidence of conspiracy, Hernandez had polygraphed both Arnot and Donna Herrick and concluded they were lying. Predictably, like Sandra Serrano, both were adamant they had not lied. Predictably, none of this information reached the jurors.

  To address distances, Fitts introduced a scale mockup of the pantry area of the Ambassador Hotel and nearby areas to help orient the jury to the various positions of witnesses who had seen Sirhan that night at various places in the hotel and in the pantry at the time of the shooting. The exhibit was divided into a grid of two-inch squares, each representing a two-foot-by-two-foot square, so witnesses could specify their positions with a letter and number. Fitts told the jury that most witnesses put Senator Kennedy at about 13-E on the grid.

  Using this grid made it easy for witnesses to point to where people were in the pantry, but it also obscured distances. Sirhan and RFK could have been placed in the same square by witnesses, but the jury wouldn’t know from that whether they were an inch apart or two feet apart. People in adjacent squares could have been four feet apart. The transcript, too, could not capture where in the squares witnesses pointed to. The transcript was the only record that was, at that point, sure to be made public, and both sides made sure they asked no questions that would expose the distance and positioning issues between Sirhan and Senator Kennedy to the trial jury, although witnesses sometimes volunteered this information. Whether it was intended as such or not, it was a clever trick that apparently worked, as no jurors or, for that matter, journalists, questioned the distance issue during the trial.

  Fitts told the jury that Judy Royer had shooed Sirhan out of the pantry earlier that night. This was not true, as Royer had provably shooed Michael Wayne from the pantry, not Sirhan, although Royer had shooed Sirhan out of a different area a couple of hours earlier that night. In doing so, Fitts amply demonstrated why judges have to remind people that nothing a lawyer says can be considered a fact.

  Fitts named several people whose hands Kennedy shook as he crossed the pantry. He described how Sirhan crossed from the serving tray rack by the ice machine across to the serving tables where Kennedy stood, raised his gun and fired. Then Fitts stated something else that was provably untrue, but which the defense team neglected to challenge: that Sirhan shot Kennedy at “point blank range.” No credible witness ever placed Sirhan close enough to get his gun muzzle within an inch of Kennedy’s head. Witnesses who saw a gun close to Kennedy could never identify the shooter as Sirhan, and those who saw both Sirhan and Kennedy made clear they were feet, not inches, apart. Frank Burns said the gun was “very close to Kennedy,” but oddly, while looking at Sirhan to his right, he felt “a burning sensation on my left cheek,” indicating a gun had been fired on his left, where he wasn’t looking.236 Another witness, Lisa Urso, who had seen both Sirhan and Kennedy at the same time, Sirhan fired at “point blank” range. But when the happy police staged a reenactment in the pantry, Urso disappointed them by making clear that by “point blank” she meant two to three feet away.

  When Fitts started to mention the notebooks from Sirhan’s room, Cooper registered an objection. Before the trial, Cooper had told the Judge the notebooks had been illegally obtained. While Sirhan’s older brother Adel gave the police permission to search Sirhan’s room, Adel was not the property owner. The mother was, and she had never given permission for that search. Judge Walker agreed to sustain the objection but noted he was not ruling on the admissibility of the evidence, and that he would rule on that later if an objection were entered at that time.

  Fitts assured the jury “the defendant was not to any extent whatsoever under the influence of intoxicating liquor.” Fitts ended his opening statement with this:

  In conclusion, ladies and gentlemen, the evidence in this case will show that defendant Sirhan Sirhan was alone responsible for the tragic incidents at the Ambassador Hotel in the early morning hours of the fifth of June; that he acted alone and without the concert of others. I thank you very much.”

  In essence, Fitts had just summed up the hidden agenda for this trial. T
he trial wasn’t about Sirhan’s penalty. The point of the trial was to prove that Sirhan had acted alone. In other words, the trial was aimed at the public, not the jurors. Any evidence of conspiracy was avoided or disputed, often via an assertion from Hernandez that the witness had been lying. (Had the jury heard Hernandez’s questioning of Sandra Serrano, no doubt they would have found Hernandez’s assertions less compelling.)

  Fitts was a crafty jurist. He took up the full day so the jury would go home with nothing but his story circulating uncontested in their brains. The defense did not appear to understand the psychological advantage this presented Fitts, or surely they would have planned better when Fitts pulled off the same feat again during closing arguments.

  Judge Walker adjourned the trial for the day with the admonishment he would reiterate nearly every day over the nearly three-month period of the trial. He told the jury to disregard everything they heard on radio or television or read in the media and to keep an open mind until the very end.

  On the next day, the one Jewish lawyer on Sirhan’s defense team, Emile Zola “Zuke” Berman, pleaded the case for the Palestinian Arab defendant. He told the jurors Sirhan was “an immature, emotionally disturbed and mentally ill youth.”

  “No, no,” Sirhan murmured, rising from his chair to interrupt. He desperately did not want to be painted as mentally ill, despite the fact that that was the defense’s strategy for saving him from the death penalty. Sirhan felt if he had to go down for a crime he didn’t remember committing, it should at least stand for something, and he had settled on the Palestinian-Israeli conflict as his motive.

  “Talk to him, Mike,” Superior Court Inspector William Conroy said to Michael McCowan, who pushed Sirhan back into his chair with both hands and whispered to him as Berman continued. Later in the day, Parsons told reporters that “like most mentally ill people,” Sirhan “doesn’t like to be told he’s mentally ill. He doesn’t like it when I tell him.”237