Orders to Kill

by William F Pepper Esq

  WE RETURNED TO THE TRIAL office that evening to learn that Hosea Williams, who should have arrived that day, was in too much pain even to get to the airport. He asked if he was really needed and was told yes. We rescheduled his appearance.

  Meanwhile, Oscar Kent had arrived from Birmingham and was waiting to talk to us. (We had earlier made contact with him because Morris Davis had told us that he could corroborate Davis’s allegations about Dr. Gus Prosch. After considering for some time, he offered to come to Memphis to talk to us.) He remembered seeing Davis and Prosch at the Gulas Lounge but said he didn’t know anything about their business or any connection they might have with the King case. He went on to reveal an extraordinary story of his own. He said that he had been involved in illegal activity with some Birmingham police detectives. They had a falling-out and tried to set him up, charging him with a number of crimes over a period of years, all subsequent to 1968. The significance of this, he said, was that on March 30, 1968 he delivered a payoff to two detectives in a parking area near the Aeromarine Supply Company when they were on a stakeout waiting for James Earl Ray to appear. James did appear and entered the store. Kent said the detectives, whom he named, had James’s photograph and real name. They told him it was not their intention to pick up James but merely to confirm his appearance. If true (the members of our team had different views as to this), it was a startling disclosure, one that indicated foreknowledge of the killing by the police department. There was no time to do any corroboration on Oscar Kent. I decided he would go on the stand.

  FEBRUARY 1 WAS ANOTHER difficult day for the defense. It started well, with former FBI agent Arthur Murtagh movingly recalling the bureau’s extensive unconstititional efforts to discredit Dr. King. At various points he broke down and sobbed.

  Ewing again tried to prevent any evidence of the FBI’s illegal activity against Dr. King, but the judge overruled him. However, he wouldn’t let Murtagh mention the spontaneous remark of fellow agent James Rose, who upon hearing about the assassination exclaimed, “We [or they] finally got the son of a bitch!”

  Former FBI agent Bill Turner’s testimony was abbreviated after Ewing raised an objection as to relevance after only a few minutes, but not before Turner had described the FBI’s “black bag” operations during this period.

  St. Louis newscaster John Auble, who was prepared to testify about the incident of “dirty tricks” by the HSCA using the New York Times, was thrown off the stand by the judge virtually before he could open his mouth. The judge maintained that such post-assassination activities were not material to the charge of murder, despite our argument that as evidence of a cover-up they were relevant to the existence of a conspiracy.

  The judge ordered a recess and asked the defense where it was going. We then told him we planned to call Bill Schaap as an expert on the political uses and manipulations of the media in influencing mass public opinion about Dr. King and James Earl Ray. The judge commented that author Gerold Frank had convicted James in his book. We told him that that was precisely the point. Jean produced the FBI memo from DeLoach to Hoover (dated the day after Ray’s guilty plea hearing) proposing that an official record of the case be written by a friendly writer, and suggesting Gerold Frank. We knew the judge had read the book and so we had been waiting for an opportunity to introduce the memo. To his credit the judge allowed us to introduce it over Ewing’s objection. He refused, however, to allow us to call Bill Schaap.

  He treated the same way defense evidence pertaining to the efforts of the HSCA and the media to tie the Ray brothers to the Alton bank robbery. Former Alton policeman John Light’s testimony was not to be heard.

  We pressed on with testimony indicating that in all likelihood the shot came from the brush area opposite the Lorraine. We introduced the statements of Solomon Jones and Rev. James Orange. Kay Black also testified to having observed the area on the morning of April 5 after it had been cut and cleared up. Retired police officer J. B. Hodges testified to finding fresh footprints in the alleyway, and Maynard Stiles testified that the brush and the bushes were cut to the ground early the next morning.

  William Ross came to testify about his enhanced recollection that the shot came from the bushes. Unfortunately, earlier Ewing had requested a conference in chambers to object to this testimony because Ross didn’t remember where he thought the shot came from until after he was hypnotized. We thought that was the idea: that the subjects’ recollections were sharper after hypnosis. We allowed the prosecution to view the video of our hypnosis sessions and though he talked generally about procedures his objections seemed to be more result-driven. The judge affirmed: Ross was out, even though Hurley and Walker, who had also been hypnotized, had been allowed in.

  Oscar Kent took the stand and testified to his business relationship with particular Birmingham detectives in 1968 and to having observed two of them surveilling James Earl Ray as he entered and left the Aeromarine store on March 29. Kent testified that he had been charged with a number of fabricated crimes after this episode, but that the charges were ultimately dropped. He said that prior to his Aeromarine observations, with the exception of traffic violations, he had never been charged with a crime. On cross-examination Ewing asked Kent to provide details. In the course of doing so he described James as wearing khaki trousers and a lightweight light blue wind-breaker. Though Ewing did not follow it up, this statement gave us concern because Donald Wood, the manager of Aeromarine, had clearly described James as being dressed in a dark suit, white shirt and tie, which, in fact, was James’s usual dress during this time. (James later confirmed to us that he had never owned the type of clothes described by Kent.)

  SINCE SO MANY WITNESSES HAD BEEN EXCLUDED, the defense was running short. We were anxiously awaiting the arrival of Hosea Williams. Meanwhile, another crisis had emerged. Earl Caldwell had begged off, saying he was suffering from the flu. The defense staff pleaded and offered to provide local medical care. We held our breath.

  Williams, having been met at the arrivals gate by a wheelchair, was driven straight to the courthouse. He testified that he arrived with Dr. King on April 3, that they were looking forward to staying at the Rivermont Holiday Inn, and that he was surprised that they were taken to the Lorraine Motel. He said that neither he nor anyone else in the entourage was familiar with the Lorraine and no one understood why the change was made.

  In response to a question about room assignments, he said that Dr. King was “initially” given a room on the ground floor but “… for some strange reason, his room was changed.”

  He recounted the events in the hours before the assassination.

  On cross-examination Ewing concentrated on Dr. King’s itinerary in the months and weeks prior to the killing, apparently attempting to establish that his movements were public knowledge.

  During my re-direct, Williams confirmed that there was an FBI informant employed as an accountant under Ralph Abernathy, SCLC’s treasurer.

  In addition to the losses already mentioned, the judge ruled that the defense couldn’t introduce the affidavit of Tim Kirk relating to the contract offer on James’s life; or Jack Kershaw’s testimony about the offer of money and a pardon for James on the condition he admitted guilt; or Myron Billet’s film interview and affidavit relating to a previous conspiracy to kill King; or Jules “Ricco” Kimbel’s affidavit about flying in two shooters. We didn’t even bother raising the issue of Oliver Patterson’s affidavit, which outlined dirty tricks by the HSCA against Jerry Ray, including the taking of hair samples, theft of correspondence, and the introduction to him of a female agent for purposes of gathering information in exchange for sex.

  It was the exclusion of evidence about the hoax broadcast that most upset James. The broadcast within minutes of the shooting was obviously of crucial importance. We had the dispatcher, William Tucker, ready to testify. The transcripts of the tapes had long been publicized and known. We also had the policeman in the field, Rufus Bradshaw, who received and radioed in the false CB acco
unt of a car chase involving a white Mustang. But the judge said, “Your client has benefited once from this hoax by being able to escape. I’ll not let him benefit twice.” The legal reasoning escaped me. James was so angry that he wanted to withdraw from the case.

  John Billings called late at night to say that James was threatening not to appear the next day. I called James and told him that I shared his frustration but believed that the jury was with us. I agreed to recall him to the stand to give him an opportunity to ventilate.

  Betty and Bobbi continued to avoid us. We prepared an affidavit for Betty to sign, but she refused. She spoke to to our investigator Cliff Dates on February 2, apologizing for any inconvenience caused and stating that she had finally decided not to cooperate, fearing that if she did so Jowers would “surely kill her.” She also stated her belief that if the trial went well, James would be paroled in two years’ time.

  On James’s recall the next morning, Ewing spent more time on his feet objecting than he did in his chair. James was determined to talk about the hoax, and Ewing and the judge were determined that he would not.

  Ken Herman said he noticed a look of interest on the jurors’ faces when the prosecutor tried to shut James up. He said the look asked, “What are they trying to keep from us?”

  I later learned that when James showed up that morning he had with him a book with a sign inside it on which the following words were printed: THIS TRIAL IS A FARCE. He intended to flash it in front of the cameras if things continued the way they had. John Billings did his best to stabilize the situation.

  Next on the stand was fireman William King. He testified that the day after the shooting he walked down Mulberry Street and noticed that “bushes” behind the rooming house had been freshly cut. When asked, he said that he was talking about trees rather than bushes, and he identified a long tree branch that appeared to have been recently cut and that hung over the wall.

  I was thankful that Earl Caldwell finally appeared. He told how New York Times editor Claude Sitton had told him to “nail Dr. King.” He vividly described how after the shot he saw a crouching man rising up from the bushes and staring at the balcony until he was distracted by Solomon Jones furiously driving the car back and forth. On cross-examination Caldwell testified that he had learned that the King party was to stay at the Lorraine Motel on or around April 1. He repeatedly stressed the height and thickness of the bushes in which he saw the crouching man.

  The judge had repeatedly told me he wouldn’t allow former congressman Walter Fauntroy to testify for the defense. However, I went ahead and called him. If the judge didn’t want him to testify he would have to take him off the stand in front of the jury. Fauntroy had direct personal knowledge of the bureau’s activities against Dr. King and of Hoover’s attitude, because he had been the SCLC’s man in Washington and had even attended the one meeting between Dr. King and Hoover. He had also had an opportunity to review a great deal of documentation from the HSCA’s classified files and had become convinced that James was not guilty. As I attempted to elicit these facts, Ewing had hardly voiced his objection when the judge sustained.

  In fairness, it seemed that the judge became increasingly committed to holding the evidence to that which was strictly relevant to a charge of murder. The judge’s rulings severely limited our effort to demonstrate a very wide range of conspiratorial evidence related to the planning, execution, and ongoing cover-up of the truth about Dr. King’s murder.

  It’s always tempting to second-guess the man in the robe, and in fact some of his rulings made good sense and were (even if intuitively so) well-founded in the rules of evidence. For example, Jules “Ricco” Kimbel’s allegations of his involvement in a conspiracy as the pilot who flew the shooters in and out of Memphis had taken on material aspects of unreliability. As is often the case, particular aspects of his story had the ring and feel of truth but courtroom proof certainly requires and deserves a higher standard. The judge viewed these submissions more objectively than I did at the time. (Eventually I concluded that Kimbel may have provided me with some false information in the hope of inducing me to provide legal assistance to his brother, who was also in prison.)

  I believe that the tightness of the judge’s procedures, however, was overdone in some instances. The change of Dr. King’s room was raised by Hosea Williams in his testimony, but the background for the change wasn’t only material to the affirmative defense but highly significant. The events were set out by the now deceased manager of the Lorraine, Walter Bailey, in his conversations with investigator Leon Cohen and reporter Wayne Chastain, but these conversations were excluded by the court even though they were clearly against the interests of Mr. Bailey. Tim Kirk’s affidavit setting out the details of the contract on James back in 1978 by U.S. government informant/operative Art Baldwin was always agreed to be allowed in if Hickman was permitted to ask questions to which Kirk would respond. This was done, and still the affidavit was kept out, despite it being extraordinarily contrary to Kirk’s interests.

  In rebuttal, Ewing attacked Oscar Kent’s testimony by introducing a statement from Johnny C. Woods, one of the Birmingham detectives Kent had named. He denied being involved in any stakeout looking for James Earl Ray and noted that the Aeromarine Supply Store in 1968 was located near the Birmingham airport and not in a mall, where it is now. He further contended that he didn’t meet Oscar Kent until the 1970s.

  In their strident closing, the prosecutors kept the emotional level high, lamenting the loss to King’s widow and his orphaned children. Their pretensions were sickening, particularly because throughout the trial I wasn’t allowed even to hint at the personal relationship between myself and Martin and the impact that his death had had on me.

  In the absence of any evidence, the prosecution referred to James’s “racism” and made a great deal of the fact that James supposedly “stalked” Dr. King. The main thrust of their closing was in trying to discredit the defense witnesses or to dismiss the significance of their testimony. In the words of journalist Andrew Billen of the English newspaper the Observer, “They spend [sic] most of their allotted hour colourfully rubbishing the defense case rather than establishing their own.”

  IN MY CLOSING STATEMENT, I asked the jury to put aside the heat and consider the case carefully. I asked them first to consider the type of person James Earl Ray was, to think about his behavior in the context of his circumstances, and I urged them to ask themselves whether he was capable of pulling off such a crime.

  The prosecution hadn’t introduced a shred of evidence of any motive, I said, and pointed out the absurdity of their argument that James had stalked Dr. King. He had, for example, been in Los Angeles before Dr. King arrived, and when Dr. King arrived, he left. Also, there was no evidence to indicate that James even knew Dr. King was in Atlanta at the beginning of April, less than three weeks before the killing; when examined, the marks on James’s map of Atlanta were clearly not around Dr. King’s home or church. Further, the HSCA had considered the map to be such a flimsy piece of evidence that the members dismissed it. I went over the many holes in the prosecution’s admittedly circumstantial case, including the failure to match the evidence slug to the rifle at the scene; the fact that none of James’s fingerprints were found in the rooming house; the fact that the state’s chief witness was falling-down drunk; that the bathroom was empty just before the shot was fired; that there were three eyewitnesses to activity in the bushes; and that two eyewitnesses saw James’s white Mustang being driven away from the rooming house minutes before the shooting.

  I moved on to catalog the wide variety of strange events surrounding the case, including the apparent tampering with the evidence slug, the cutting of the tree and bushes, the change of motel and room, and the removal of security, Detective Redditt, and the two black firemen, asking if any of these actions could really have been arranged by James acting alone. I also reminded the jury about the revelation of the conducting of electronic surveillance against Dr. King in Memphi
s and the denial of that activity by FBI agent Joe Hester.

  The judge addressed the jury for a half hour, after which they retired to consider their verdict. During deliberations the jury asked to see again photographic evidence submitted by the defense showing the death slug lodged just under the skin in Dr. King’s back, the death slug itself, and the footprints found in the alleyway at the rear of the rooming house.

  After seven and a half hours they sent word that they had reached a verdict.

  The trial had run for over fifty hours during ten days, and when it ended we knew we would have to wait nearly two months to learn the result, as it would be revealed only when HBO and Channel 4 in England aired the trial on April 4, 1993. In spite of the fact that the greater part of our evidence concerning conspiracy had been excluded, and we couldn’t put on our most explosive testimony because the witnesses were too afraid to testify, we believed we had put forward a good case.

  25

  The Verdict: February–July 1993

  I HAD BEEN BACK IN ENGLAND for less than a week when Jim Smith called. After the trial he was harassed and closely watched in the attorney general’s office. Meanwhile, Ewing tried his utmost to have Smith’s testimony excluded from the program. The rules required that the two sides sign off on the final version as being representative and fair, and Ewing wrote a blistering memo virtually accusing Smith of lying. He stated that after his testimony Smith had said to Glenn Wright (Ewing’s co-counsel) that he really didn’t know who the federal agents operating the surveillance of King worked for, but had assumed it was the FBI. He also said that it was rumored they were with the army. Jack Saltman told me that he was angry and disappointed with Ewing. He and Thames’s legal advisor, Peter Smith, told Ewing that just as the defense wouldn’t be allowed to edit his case, neither would he be allowed to edit defense testimony. Eventually, one bit of Smith’s testimony was edited out at Peter’s suggestion and my reluctant agreement; at the time, I hoped that it might help to ease pressure on Smith. It consisted of a few lines where I had asked him how he would characterize the statement of an FBI official who said categorically that there was no electronic surveillance on Dr. King; Smith had replied that the agent either would have been lying or didn’t know about it. On cross-examination (of which Smith was not aware) Joe Hester had said categorically that there was no such surveillance and if there had been he would have known about it.