by Lisa Pease
Cooper: I would suggest this, if your Honor please—I would have no objection to his [Wolfer’s] testifying from those photographs as though they were powder tattooing, provided, however, that at a later period of time they were put on the testimony to show that it was in fact powder tattooing.
Judge Walker to Fitts: “Do you have any way of doing that from the pictures?”
Fitts: Well, if the Court please, it seems to me it’s asking a little bit too much of anybody to look at a photograph and say—
Judge Walker: Well, I’m just asking you.
Fitts: I don’t want to ask him that question because I think it’s asking too much. From the pictures, you can’t tell whether it’s a smudge or whether it’s embedded in the skin or what.
Was Fitts worried Wolfer might not recognize those as powder burns?
Judge Walker: He could testify that it resembled that, and another witness could testify that he observed the actual area.
Fitts: Yes, we expect that will come in.
Cooper: I do object, your Honor, to its being received in evidence and shown to the jury until such time as there is testimony that it is powder tattooing.
Judge Walker: He could testify—well, I will allow him to testify they resemble powder burns.
Fitts: Could he testify on the assumption these are powder burns?
Cooper: Yes, I have no objection to that, providing I will move to strike his testimony with respect to that, and the introduction of the photograph, which is the only thing I am objecting to, when that foundation is subsequently made.
Judge Walker: That is, that someone who actually saw the powder burns?
Cooper: And who can testify that there is actually powder tattooing. Yes, your Honor.
Judge Walker: That’s the only way you can do it.
Fitts then asked if he could talk to Wolfer. Clearly, Fitts had to clue Wolfer in now on what to say, even though witnesses are not supposed to be coached or led. After that, the scene unfolded exactly as planned.
Fitts drew Wolfer’s attention to the “black smudging, which appears on the lobe and the edge of the right ear” and asked “Are you familiar with what that is, sir?”
“I am,” Wolfer said. “This is what we call powder tattooing for two purposes—”
“Your Honor,” Cooper interjected, “I move to strike the witness’ answer.”
“That may go out. The jury will disregard it.”
Fitts then led Wolfer—so much that at one point Cooper objected and the Judge upheld it—to say he had personally examined Kennedy and found direct evidence of the powder tattooing on Kennedy.
Fitts wanted to get to the distance issue. He got Wolfer to describe how he had fired at pigs’ ears “at a 30-degree angle inward and a 50-degree angle upward as per information I had regarding” what Fitts called “the wound tract” in Kennedy’s head. The tests were conducted at various distances, with the same type of Mini-Mag, hollow-point ammunition used in the pantry, and the pattern that matched what was seen on Kennedy was made from a distance of one inch. These were the same pigs’ ears Thomas Noguchi had requested. The two had worked together to determine the distance. And interestingly, Noguchi was set to testify shortly after. So why didn’t the prosecution have Noguchi testify to the distance? Were they worried Noguchi might stray off script and mention that was inconsistent with Sirhan’s firing position?
“The weapon [that killed Kennedy] was held approximately one inch away from the Senator’s ear at the time it was fired.”
Fitts asked if the gun in People’s Exhibit 6 had been used.
“No, we did not use this gun. We used a gun which was the exact make and model and within a very close serial number of this weapon. At that particular time the gun was in the Court exhibits and was unavailable for us to obtain for the purpose of testing.”
Was the gun that was “within a very close serial number of this weapon” the gun with the serial number H58725, the gun Uecker had identified as the gun at the start of the trial? Sirhan’s gun was H53725. Gun manufacturers often embed dates of manufacture in the serial number. Given that both guns share “725” at the end, it is possible “725” represents a coded date. If so, then H58725 might have been a “very close serial number” indeed. The gun that Wolfer used for sound tests (and which appeared on the evidence envelope for Wolfer’s “test” bullets) was H18602. H18602 does not appear to be a close serial number to H53725.
Due to this and other evidence that will be presented later, I’m convinced that the gun with H58725 was indeed presented in the courtroom, that the record did not contain a typo, and that it was not the gun Rafer turned in to the police after the shooting. That would mean when Wolfer testified that this gun was the one that fired the bullets he presented in court, he may well have been telling the truth on that point. That would also mean Sirhan had been convicted based on demonstrably false evidence.
Fitts next introduced Kennedy’s coat into evidence. The coat was missing one arm. Although Wolfer explained he had to cut the coat to fit a mannequin and then sewed it awkwardly by hand together again, no one asked him to explain why the whole left sleeve was still missing. Kennedy was supposed to have been shot only on the right side.
Cooper offered a stipulation to the cutting of the coat if Fitts wanted one. Fitts did, but the way Fitts framed it was very odd, considering Wolfer had just admitted to cutting up the coat:
With respect to the condition of the coat and the cutting, we would offer to stipulate that at the time Senator Kennedy was removed from the Ambassador Hotel to the Central Receiving Hospital for receiving treatment there at the hands of Dr. Fausten [sic] Bazilauskas and Dr. Kolti that the coat was removed from him and by reasons of the condition, it was cut with scissors in various ways, and the reason it was in this condition accounts for the condition in which Mr. Wolfer received it.
Fitts appeared to have just made a liar of his client, claiming the coat had been cut up before it ever got to Wolfer. Once again, the Judge jumped in to help the prosecution’s case:
Judge Walker: And it accounts for the absence of one sleeve.
Fitts: I should certainly suppose so. I would have thought it would have had a sleeve at the time it was worn.
Cooper: The only point is that, obviously, it wasn’t done by the defendant.
Note that Fitts did not say “yes” to Walker’s response but rather, “I should certainly suppose so.” He said something that could not be construed as a direct lie. But who cut the left sleeve off, and more importantly, why did it disappear? If the doctors had removed the sleeve for medical reasons, why was no one asked to testify to this at the trial? And why was the cut sleeve not returned, in a murder case? The rest of the coat was. Did the sleeve contain one hole too many, or in an inconvenient position, perhaps on the left side, when all the other shots in Kennedy’s body came in from behind his right side? It’s hard to believe that, with so much at stake, an innocent explanation was not conclusively provided in the trial. Cutting a sleeve off for surgery makes sense. Throwing it away, however, does not, in a case of this importance.
Wolfer discussed the five bullet holes found in the coat—three entrance points and two exit points. One bullet passed through the right sleeve just below Kennedy’s shoulder seam without entering his body. Two more bullets entered under his armpit, one of passed through Kennedy’s chest and exited out “the upper front lapel” of Kennedy’s coat. The other bullet lodged in the back of Kennedy’s neck.
Fitts asked Wolfer how far the gun had to have been from the coat for these shots. Wolfer said all the shots that hit Kennedy’s coat came from a distance of one to six inches at most. The shot just below the right shoulder came from “about one inch away,” but the two holes under the arm were within two inches of each other, so it was hard to say if one was fired at closer range than the other.
Under closer questioning, Wolfer indicated the shots under the arm likely came from a distance that could have been as close as three-quar
ters of an inch away and not more than three inches away, and of the two, he leaned toward the closer figure.
Cooper noted that Wolfer had used a gun other than the Sirhan gun in evidence to make the powder tests and asked, might he have gotten a different answer on the distance had he used the actual gun and not a similar gun? Cooper appeared to be hinting to Wolfer that he should widen the distance between the gun and Kennedy. Wolfer either missed or rejected the hint. Wolfer explained that the powder tattooing patterns didn’t vary much from gun to gun, so Fitts did a quick redirect of Wolfer on this point.
“There may be some ambiguity with respect to your testimony, Officer Wolfer, as to the range from which the gun was shot and the bullet that went into the head of the Senator was fired. I believe on direct examination it was your testimony that it was approximately one inch, is that correct sir?”
“That is correct. … I really feel it was closer than an inch, but I gave you the maximum difference of an inch. I would say three-quarters of an inch tolerance at the inch distance that they had.”
“When you use the word ‘tolerance’ are you saying that you added a quarter of an inch on to what your real opinion is?”
“I would say I added possibly three-quarters of an inch.”
“Well, that would be what in adding everything together, would that make an inch and three-quarters?”
Fitts appeared to be deliberately miscalculating the math here, just as Cooper had. But Wolfer’s testimony was actually clear on this point. Wolfer said that the shot behind Kennedy’s right ear was, in his opinion, made from a distance of not more than a quarter of an inch away. He only added the extra three-quarters of an inch as the largest possible margin of error, to give a total maximum distance of one inch.
For the underarm shots, Wolfer said the overlapping patterns indicated that at least one of the two shots came from a distance of from three-quarters of an inch to at most three inches away, but he added another three-inch tolerance to make his maximum estimation of the distance six inches at the most.
In other words, Wolfer’s information showed the gun muzzle of the gun that killed Kennedy was likely never more than three inches from Kennedy for all four shots that hit him and his clothing, and that the headshot was fired from a point of nearly direct contact, closer to one quarter of an inch than an inch. Whoever shot Kennedy had to have been right beside him. Sirhan never got anywhere near that close, and he was always to the front left of Kennedy, not behind him and to the right, where the shooter had to have been. Kennedy didn’t spin around until he had already been shot, and even then, he fell away from, not toward, Sirhan.
In a perfect world, the trial would have ended right there and the charges changed on the spot, as Wolfer essentially proved that Sirhan couldn’t have killed Kennedy, even though that was neither Wolfer’s nor the prosecution’s (and clearly not the Judge’s or the defense team’s) intention. But the world is far from perfect, and the charade continued for another month.
Sirhan’s defense team opened with some background on Sirhan. As a child in Palestine at the time Israel declared independence from its British overseers and waged war against the Palestinians, Sirhan’s family was forced to move from their middle-class home to a decrepit two-story building that housed nine families of 50 people, with a single hole in the ground for a toilet. There was no furniture. They stuffed sheets with old clothes to make beds. They received flour, beans, and Mazola corn oil from the United Nations, which was never enough food to satisfy. People died of starvation. Sirhan shared his family’s paltry rations with others who had literally “nothing to eat.”
Young Sirhan was tasked with fetching water from a well. One time, the bucket he pulled up had a severed hand in it. Another cistern of water wasn’t drinkable because there were dead bodies in there. Sirhan’s mother, Mary Sirhan, explained how sometimes the family would stand in line and wait half a day just to get water from a truck.
Bombs rained down all around him. Young Sirhan saw a grocer blown up right in front of him. He blacked out from the terror and wouldn’t leave the house for two weeks after a horrific incident. In one incident, a man was blown up but his leg got caught by and hung from a steeple on a church. Another time, Sirhan saw “many young girls in [a] truck that were naked, and there was blood running from their breasts, and a big lot of army that was going in,” Mary Sirhan had said on the stand. “I don’t know what kind of soldiers they were, clapping their hands, saying ‘Look what we can do,’ and this is what Sirhan and I saw.” Another time, Sirhan found a man caught in a barbed-wire fence who had been shot and had blood running from him. Sirhan literally trembled, according to his mother. “I believe he took a long time before he could even stand on his feet.”
Sirhan had an older brother named Munir who was run over by a car while playing in the street by someone attempting to escape gunfire. Mary Sirhan described how Sirhan didn’t seem to understand the concept of death. He kept asking when Munir would come out to play. When Mary Sirhan gave birth to the youngest member of the family, she named him Munir in the hopes of comforting Sirhan.
Another time, Sirhan had seen a neighbor’s boy tied to a tree and “whipped, whipped, whipped for many—I don’t know how many days they did whip him” by Israelis in front of her neighbor’s eyes. Clearly, trauma shaped Sirhan’s young life.
Despite this, one of Sirhan’s childhood friends, Ziad Hashimeh, told the jury of Sirhan’s kindness, even among all the terror. Hashimeh wanted to steal an ice cream cone from a vendor, but Sirhan talked him out of it. “Do not steal, because that man makes very few pastries … and he has to feed a family, and that is not nice.”
Despite the heartbreaking testimony, and despite the fact that six medical professionals, including two initially hired by the prosecution, said Sirhan was clearly suffering from a degree of paranoid schizophrenia that made it impossible for him legally to have the capability to have committed first-degree murder, while only two said Sirhan was sane enough, the jury found Sirhan guilty of murder in the first degree and, after another set of impassioned arguments on both sides, sentenced him to death.
The psychological testimony, at this point in the story, is premature. If Sirhan didn’t shoot Kennedy, did he shoot anybody? Was he firing blanks? Did he know what he was doing? The trial put the cart before the horse. After examining two more episodes from the trial, we’ll take a more in-depth look at what really happened. Until we understand the nature of the event, we have no way to competently evaluate Sirhan’s role in it. We’ll return to his mental state when we have a better grounding in the crime itself.
One event from the trial that must be discussed here is commonly misrepresented in other books on this case: Sirhan’s outburst where he told Judge Walker, initially outside the hearing of the jury, “I killed Robert Kennedy willfully, pre-meditatively, with 20 years of malice aforethought.” Many journalists have looked at that statement and thought, case closed. The guy confessed. But as noted at the start of this chapter, people sometimes confess to crimes they didn’t commit.
There’s also much more context to that statement than is generally presented. If someone robs a bank, they’re guilty, right? But what if you found out the robber did so to save his child from being killed in front of him? That information changes the context entirely. Suddenly the robber is more victim than criminal. With that example in mind, consider what happened next.
Sirhan’s anger had been building for days. He had never fully bought in to his defense team’s plans to plead him mentally ill. This tremendously bothered Sirhan. As we’ve seen, Sirhan truly had no memory of what had happened and, lacking a motive, invented one: that he was defending Palestine against Kennedy, who was about to send in more bombers.
When the notebooks were to be put into evidence, which Sirhan understood to have been obtained through an illegal search and seizure, as the police had no search warrant, thereby violating his rights, Sirhan insisted on speaking to Judge Walker. He was brought to t
he Judge’s chambers shortly after 9 A.M., where he told the Judge,
Your Honor, if these notebooks are allowed in evidence, I will change my plea to guilty as charged.
I will do so, sir, not so much that I want to be railroaded into that gas chamber, sir, but to deny you the pleasure, sir, of, after convicting me, turning around and telling the world: ‘Well, I put that fellow in the gas chamber, but I first gave him a fair trial,’ when you in fact, sir, will not have done so.
The evidence, sir, that was taken from my home was illegally obtained, was stolen by the District Attorney’s people. They had no search warrant. I did not give them permission, sir, to do what they did to my home.
My brother Adel had no permission to give them permission to enter my own room and take what they took from my home, from my room.
“If your Honor please,” Cooper interjected, “I didn’t know that this statement was going to be made. I knew he was going to object to the use of the notebooks, but in the light of his statement, I would like to have a few minutes to talk to him.”
“Right,” Howard said, “I think that is—”
“No, sir, I’m adamant on this point,” Sirhan said.
Cooper asked Sirhan to step outside with him, where they had a brief discussion. When they returned about ten minutes later, Cooper told Judge Walker, “We have him calmed down, temporarily at least, and we don’t know when he might blow again.”
Cooper, Howard and Walker agreed that if Sirhan made further outbursts in the courtroom, the judge would call a recess immediately and dismiss the jury.
“Now, Mr. Sirhan, let me tell you this,” Judge Walker told Sirhan. “The court has ruled on the admissibility of this evidence in court, and, if there is an error, the upper court can reverse this case.”
“Yes, I understand.”
“You are guided by three excellent attorneys and they have been at this business for many years.”
“I understand, sir.”