Sirhan B Sirhan v. George Galaza, et al

Filing 222

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Beverly Reid O'Connell for Report and Recommendation (Issued) 216 (Attachments: # 1 Report and Recomendation) (yb)

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 1 of 67 Page ID #:1799

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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12

SIRHAN BISHARA SIRHAN,

13

Petitioner,

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15

v.
P.D. BRAZELTON, Warden,1

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Respondent.

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Case No. CV 00-5686-BRO(AJW)

REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE

17
18

This case may be the final chapter in an American tragedy.

19

June 5, 1968, moments after declaring victory in the California

20

Democratic primary, Senator Robert F. Kennedy walked through the

21

kitchen pantry of the Ambassador Hotel, where petitioner was waiting.

22

As Senator Kennedy stopped to shake hands with hotel employees,

23

petitioner walked toward him, extending his arm.

24

Senator Kennedy’s hand, petitioner shot him.

25

fire his gun even as bystanders wrestled him onto a table.

On

Instead of shaking

Petitioner continued to
Senator

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27
28

1

The Clerk is directed to substitute P.D. Brazelton, the current
warden of the prison where petitioner is incarcerated, as the
respondent in this case. See Fed.R.Civ.P. 25(d).

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 2 of 67 Page ID #:1800

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Kennedy died of his wounds.
Petitioner was charged with assassinating Senator Kennedy.

The

3

evidence of petitioner’s guilt was overwhelming.

Not only did

4

numerous

Kennedy,

5

petitioner – who had written “RFK Must Die” and “Robert F. Kennedy

6

must be assassinated” repeatedly in his diary – confessed to shooting

7

Senator Kennedy “with malice aforethought.”

8

of first degree murder and five counts of assault with a deadly

9

weapon.

10

In

witnesses

see

petitioner

shoot

Senator

but

Petitioner was convicted

He received a death sentence.
this

petition

for

a

writ

of

habeas

corpus,

petitioner

11

challenges his conviction for the assassination of Senator Kennedy.

12

This petition was filed in 2000 – more than three decades after

13

petitioner was convicted.2

14

dismiss the petition on the ground that it is barred by the statute of

15

limitation.

16

things, that he is entitled to an exception to the statute of

17

limitation because he is actually innocent.

18

reasons, respondent’s motion should be granted, and the petition

19

should be dismissed as untimely.

Petitioner opposes the motion, arguing, among other

For the following

Procedural Background

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21

Not surprisingly, respondent moved to

The California Supreme Court affirmed petitioner’s conviction,

22

but reduced his sentence to life imprisonment.

23

Cal.3d 710, 717, 755 (1972).

People v. Sirhan, 7

The United States Supreme Court denied

24
2

27

The petition alleges that (1) the prosecution withheld
exculpatory evidence, destroyed evidence, and presented false
evidence; (2) the evidence is insufficient to support petitioner’s
conviction; and (3) petitioner’s trial counsel provided ineffective
assistance. [See Petition at 1-5, 9-181].

28

2

25
26

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 3 of 67 Page ID #:1801

1

petitioner’s petition for a writ of certiorari on February 20, 1973.

2

Sirhan v. California, 410 U.S. 947 (1973).

3

Petitioner filed his first habeas petition in the California

4

Supreme

Court

in

1975,

claiming,

among

other

things,

that

the

5

prosecution had suppressed evidence suggesting that an unknown second

6

gunman fired the bullet that killed Senator Kennedy. The petition was

7

denied on February 13, 1975. [Lodged Documents (“LD”) 13-15].

8

Later the same year, the Los Angeles Superior Court conducted

9

“special proceedings,” pursuant to which a panel of seven independent

10

firearms experts re-examined the ballistics evidence presented at

11

trial. [LD 6 (Exhibits to Petition in Case No. S062258), Exhibit

12

(“Ex.”) A (February 5, 1976 Minute Order) & Ex. G (Superior Court’s

13

Order for Resting of Exhibits); LD 27 (Partial Reporter’s Transcript

14

of Proceedings)].

15

tests, and unanimously concluded that there was no indication that the

16

bullets were fired from different guns.

17

unable to definitively confirm that the bullets (including the bullet

18

removed from Senator Kennedy’s neck) were fired from petitioner’s gun.

19

The inability to confirm that petitioner’s gun fired the bullets was

20

the result of the physical condition of the gun (which, in turn, was

21

the partly the result of the passage of time), which prevented

22

reproducibility. [LD 6, Ex. B (Comprehensive Joint Report of the

23

Firearms Examiners)].

24
25

The examiners reviewed the evidence, conducted

The examiners, however, were

On April 21, 1997, petitioner filed a habeas petition in the Los
Angeles County Superior Court.3

On April 30, 1997, the Superior Court

26
3

27

A copy of this petition has not been made available to the
Court. [See Docket No. (“DN”) 179 (Response and Declaration of Jaime

28

3

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 4 of 67 Page ID #:1802

1

denied the petition on the merits, noting that petitioner had offered

2

to plead guilty to first degree murder in exchange for a sentence of

3

life in prison, and that at trial, petitioner had admitted shooting

4

Senator Kennedy. [LD 9].
On May 1, 1997, petitioner filed a habeas petition in the

5
6

California Court of Appeal. [LD 2].

The petition was denied on June

7

17, 1997.

8

that petitioner was estopped from claiming that someone else killed

9

Senator Kennedy after testifying at trial that he did, that there was

10

no violation of petitioner’s constitutional rights, and that there was

11

no basis for doubting the correctness of the verdict. [LD 3].

The appellate court found that the petition was untimely,

Petitioner filed a habeas petition in the California Supreme

12
13

Court on June 20, 1997. [LD 4].

Respondent was ordered to file an

14

informal response to the petition, and was granted five extensions of

15

time within which to do so.

16

both as untimely and on the merits. [LD 7].

17

This petition was filed the next day.4

The petition was denied on May 24, 2000,

Discussion

18

Section 2244(d) imposes a one-year deadline on the filing of a

19
20
21
22
23
24
25
26
27
28

L. Fuster]. Nevertheless, there is no dispute as to the date on which
it was filed. [See LD 9 (the Superior Court’s order denying the
petition, stating that the petition was filed April 21, 1997); DN 106
(Motion to Dismiss) at 2; DN 135 (Opposition to Motion to Dismiss) at
5].
4

Because petitioner was represented by counsel at the time he
filed this and all relevant state petitions, the “mailbox rule” does
not apply. See Houston v. Lack, 487 U.S. 266, 275-276 (1988) (holding
that a pro se prisoner’s pleading is deemed filed at the moment it is
delivered to prison authorities for mailing).
4

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 5 of 67 Page ID #:1803

28 U.S.C. § 2244(d).5

1

habeas corpus petition by a state prisoner.

2

Where, as here, a conviction became final before the enactment of the

3

AEDPA, a petitioner has until April 24, 1997 within which to file a

4

federal petition.

5

(9th Cir.), cert. denied, 534 U.S. 978 (2001); Miles v. Prunty, 187

6

F.3d 1104, 1105 (9th Cir. 1999); Calderon v. United States District

7

Court (Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522

8

U.S. 1099 & 523 U.S. 1061 (1998), overruled on other grounds by

9

Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th

10
11
12

See Patterson v. Stewart, 251 F.3d 1243, 1245-1246

Cir. 1998)(en banc), cert. denied, 526 U.S. 1060 (1999).
This petition, however, was not filed until May 25, 2000, more
than three years after the limitation period expired.

Absent grounds

13
14
15
16
17
18
19
20
21
22
23
24
25

5

It provides:

A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court. The limitation period
shall run from the latest of -(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the
time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.

26
28 U.S.C. § 2244(d)(1).
27
28

5

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 6 of 67 Page ID #:1804

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for statutory or equitable tolling, delayed accrual, or some other

2

exception to the statute of limitation, this petition is time-barred.

3

A.

Statutory tolling

4

The limitation period does not run while a properly filed state

5

application for post-conviction relief is pending.

28 U.S.C. §

6

2244(d)(2); see Carey v. Saffold, 536 U.S. 214, 218 (2002).

7

Petitioner filed a petition in the Los Angeles County Superior

8

Court on April 21, 1997, with four days of the limitation period

9

remaining.

10

That petition was denied on April 30, 1997.

Thus,

petitioner had until May 5, 1997 to file his federal petition.6
As set forth above, petitioner also filed habeas petitions in the

11
12

California Court of Appeal and the California Supreme Court.

Both of

13

those petitions, however, were denied in part as untimely. [LD 3 at 2-

14

5 & LD 7].

15

When the California courts deny a petition as untimely, the

16

petition is not “properly filed” for purposes of statutory tolling.

17

Allen v. Siebert, 552 U.S. 3, 6-7 (2007); Carey, 536 U.S. at 236;

18

Lakey v. Hickman, 633 F.3d 782, 785-786 (9th Cir.), cert. denied, 131

19

S.Ct. 3039 (2011).

20

based both on the merits and on the ground of untimeliness.

21

Carey, 425 F.3d 1145, 1148-1149 (9th Cir. 2005), cert. denied, 549

22

U.S.

23

statutorily tolled during the pendency of the petitions filed in the

24

California Court of Appeal or California Supreme Court.

856

(2006).

This is true even when the state court’s denial is

Accordingly,

the

limitation

period

Bonner v.

was

not

25
26

6

27

The limitation period would have expired on May 4, 1997, but
that date was a Sunday, so petitioner had until the following day to
file his petition. See Fed.R.Civ.P. 6(a)(1)(C).

28

6

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 7 of 67 Page ID #:1805

1

Petitioner argues that the timeliness requirements are not, or

2

were not at the time the state court imposed them, adequate and

3

independent

4

insufficient to prevent statutory tolling. [DN 135 (Opposition to

5

Motion to Dismiss) at 6-20].

6

upon which petitioner relies, however, do not apply to statutory

7

tolling.

8

(rejecting the argument that statutory tolling is available where a

9

state

state

procedural

rules,

and

as

a

result,

they

are

The principles of procedural default

See Zepeda v. Walker, 581 F.3d 1013, 1018 (9th Cir. 2009)

procedural

rule

is

not

firmly

established

and

regularly

10

followed); Ellis v. Harrison, 2010 WL 3385206, at *18 (C.D.Cal. July

11

12, 2010)(stating that the petitioner's argument that California's

12

timeliness rule was not applied consistently “appears to confuse

13

procedural default concepts with the analysis required for purposes of

14

the

15

adopted, 2010 WL 3385201 (C.D.Cal. Aug. 25, 2010); Barr v. Yates, 2009

16

WL 1468721, at *2 (N.D.Cal. May 26, 2009) (explaining that an argument

17

that a state timeliness rule had been applied inconsistently is

18

“irrelevant” to the statute of limitation issue).7

statute

of

limitations

defense”),

report

and

recommendation

19
7

27

Furthermore, petitioner cannot claim to have relied on
precedent holding that an untimely state habeas petition is “properly
filed” for purposes of tolling the limitation period. Although the
Ninth Circuit so held in Dictado v. Ducharme, 244 F.3d 724, 727-728
(9th Cir. 2001), abrogated by Pace v. DiGuglielmo, 544 U.S. 408
(2005), Dictado was not decided until years after petitioner filed his
state petitions (and also after he filed this federal petition).
Thus, he is not entitled to equitable tolling based upon a misplaced
reliance on then-binding federal law. Cf. Nedds v. Calderon, 678 F.3d
777, 781-782 (9th Cir. 2012) (explaining that a petitioner who relies
upon then-binding circuit precedent in making a tactical decision to
delay filing a federal petition is entitled to equitable tolling);
Harris v. Carter, 515 F.3d 1051, 1055-1056 (9th Cir.) (holding that a
petitioner’s reliance on Dictato justified equitable tolling), cert.
denied, 555 U.S. 967 (2008).

28

7

20
21
22
23
24
25
26

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 8 of 67 Page ID #:1806

1

As a result, unless petitioner is entitled to equitable tolling

2

or delayed accrual under 28 U.S.C. §2244(d)(1)(D), the limitation

3

period expired on May 5, 1997.

4

B. Equitable tolling

5

The limitation period also can be equitably tolled.

Petitioner

6

is entitled to equitable tolling only if he shows “(1) that he has

7

been pursuing his rights diligently, and (2) that some extraordinary

8

circumstance stood in his way.”

9

418 (2005)).

Pace v. DiGuglielmo, 544 U.S. 408,

“In this circuit, equitable tolling of the filing

10

deadline for a habeas petition is available ‘only if extraordinary

11

circumstances beyond a prisoner’s control make it impossible to file

12

a petition on time.’”

13

2002) (quoting Miles, 187 F.3d at 1107). Equitable tolling may be

14

appropriate when “external forces, rather than a petitioner’s lack of

15

diligence, account for the failure to file a timely claim.” Lott, 304

16

F.3d at 922 (quoting Miles, 187 F.3d at 1107).

Lott v. Mueller, 304 F.3d 918, 922 (9th Cir.

17

Petitioner alleges that he is entitled to equitable tolling

18

because he was diligently pursuing his claims through the state

19

courts.

20

Tolling) at 4].

21

in filing and prosecuting his state habeas petitions, diligence alone

22

is not enough to warrant equitable tolling. Petitioner also must show

23

that an extraordinary circumstance prevented him from filing his

24

federal petition within the statutory deadline.

[DN

153

(Petitioner’s

Supplemental

Brief

on

Equitable

Although petitioner may have been diligent, at least

25

While unfortunate, petitioner’s predicament is not a result of

26

circumstances beyond his control. No external force was the proximate

27

cause of petitioner's untimely filing of this petition.

28

8

Instead,

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 9 of 67 Page ID #:1807

1

petitioner's plight is a result of his (and his counsel’s) choice to

2

wait for the outcome of each of his three state habeas petitions

3

before filing a petition in this Court, rather than to file a federal

4

petition and seek a stay so that he could exhaust his state remedies

5

as to any unexhausted claims.

6

the predicament of a petitioner who litigates in state court, only to

7

discover that his state petition was not “properly filed” and thus

8

that

9

petitioner

his

federal
can

avoid

federal

is

this

untimely,

predicament

U.S. 269, 273-275 (2005) (holding that federal courts may stay mixed

13

petitions while a petitioner exhausts his state remedies). Petitioner

14

took

15

subsequently has been) as excluding statutory tolling for state

16

petitions denied as untimely.

would

be

court

“protective”

12

statute

that

a

a

proceedings until state remedies are exhausted); Rhines v. Weber, 544

the

asking

filing

that

11

that

and

explaining

petition

risk

court

by

and

10

the

in

petition

See Pace, 544 U.S. at 416 (addressing

to

interpreted

stay

(as

the

it

17

Although petitioner’s counsel made an unsound tactical decision

18

– namely, to pursue additional collateral proceedings in state court

19

in 1997 before filing a federal petition – this simple tactical error

20

did not amount to the type of egregious or extraordinary misconduct

21

sufficient to warrant equitable tolling.

22

S.Ct. 2549, 2564 (2010) (stating that “garden variety” claims of

23

attorney negligence such as miscalculating the limitation period or

24

being unaware that the period had expired do not warrant equitable

25

tolling, but that extraordinary misconduct – such as ignoring the

26

petitioner’s repeated letters and failing to communicate for years

27

despite pleas from the petitioner – might warrant equitable tolling);

28

9

See Holland v. Florida, 130

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 10 of 67 Page ID
#:1808

1

See Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir.) (finding that

2

equitable tolling was not warranted where the petitioner’s counsel

3

failed to perfect a timely appeal, failed to inform the petitioner of

4

the deadline for filing a state habeas petition, and failed to provide

5

the petitioner with his case files in a timely manner because attorney

6

negligence did not amount to “extraordinary circumstances” and did not

7

prevent the petitioner from timely filing a federal petition), cert.

8

denied, 131 S.Ct. 474 (2010); Waldron-Ramsey v.

9

1008, 1011 (9th Cir.) (“To apply the doctrine in extraordinary

10

circumstances necessarily suggests the doctrine's rarity, and the

11

requirement that extraordinary circumstances stood in his way suggests

12

that an external force must cause the untimeliness, rather than ...

13

merely oversight, miscalculation or negligence on the petitioner’s

14

part....”) (internal quotation marks and brackets omitted), cert.

15

denied, 558 U.S. 897 (2009); Frye v. Hickman, 273 F.3d 1144, 1146 (9th

16

Cir. 2001) (holding that equitable tolling was not warranted where the

17

petitioner's retained attorney negligently failed to file a habeas

18

petition within the limitation period), cert. denied, 535 U.S. 1055

19

(2002); but see Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003)

20

(holding that equitable tolling was warranted where the petitioner's

21

attorney failed to prepare and file a petition even though he was

22

hired a year in advance of the deadline and the petitioner and his

23

mother contacted the attorney “numerous times, by telephone and in

24

writing,

25

Furthermore, despite a request that he return [the petitioner's] file,

26

[the attorney] retained it for the duration of the limitations period

27

and more than two months beyond.”).

28

10

seeking

action,

but

these

efforts

Pacholke, 556 F.3d

proved

fruitless.

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 11 of 67 Page ID
#:1809

1

C. “Delayed accrual” pursuant to 28 U.S.C. §2244(d)(1)(D)

2

Petitioner’s allegations regarding the belated discovery of

3

exculpatory evidence raise the possibility that the limitation period

4

did not begin to run until the date on which petitioner knew or should

5

have known the factual basis for his claims.

6

2244(d)(1)(D) (explaining that the limitation period does not begin

7

until the “the date on which the factual predicate of the claim or

8

claims presented could have been discovered through the exercise of

9

due diligence”).

See 28 U.S.C. §

As the Ninth Circuit has explained, under section

10

2244(d)(1)(D),

11

petitioner knows, or through diligence could discover, the important

12

facts underlying his claim, not when petitioner recognizes the legal

13

significance of those facts.

14

n.3 (9th Cir. 2001) (citing Owens v. Boyd, 235 F.3d 356, 359 (7th Cir.

15

2000) (“Time begins when the prisoner knows (or through diligence

16

could discover) the important facts, not when the prisoner recognizes

17

their legal significance.”); see generally Mardesich v. Cate, 668 F.3d

18

1164, 1170-1171 (9th Cir. 2012) (stating that section 2244(d)(1)

19

requires consideration of the appropriate triggering date for each

20

claim).

21

diligently in pursuing discovery of the relevant facts.

22

v. United States, 544 U.S. 295, 310 (2005) (holding that a petitioner

23

challenging a federal sentence that was enhanced by a prior conviction

24

that was subsequently vacated was not entitled to delayed accrual

25

because he had failed to exercise due diligence in seeking to overturn

26

the prior conviction).

27

\\

28

the

limitation

Furthermore,

period

does

not

begin

until

the

Hasan v. Galaza, 254 F.3d 1150, 1154 &

petitioner

11

must

demonstrate

the

he

acted

See Johnson

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 12 of 67 Page ID
#:1810

1

1.

The Pruszynksi recording

2

A reporter named Stanislaw Pruszynski, who was at the Ambassador

3

Hotel on the night Senator Kennedy was shot, inadvertently left his

4

tape recorder on and recorded the shooting.

5

Pruszynksi’s recording is a “key piece” of evidence that “demonstrates

6

that thirteen shots were fired on the night Senator Kennedy was

7

killed.” [DN 153 at 4-5].

8

suppressed by government authorities, was not discovered by petitioner

9

until 2001, and was not analyzed by petitioner until 2005 because the

10

technology required to perform the analysis was not available until

11

then.

Petitioner alleges that

According to petitioner, the recording was

[DN 153 at 5-6].

12

Contrary to petitioner’s contention, this audio recording was

13

available and could have been discovered in 1988, when nearly all law

14

enforcement records regarding Senator Kennedy’s assassination were

15

released to the public as part of the California State Archives. [See

16

www.sos.ca.gov/archives (Appendix E, Index and Summary of Audio Tapes

17

listing Pruszynski recording as CSA-K123; Petition at 200 (declaration

18

of

19

petitioner’s counsel told her in 1993 that the police evidence in

20

petitioner’s case had been released to the public in 1988)].

petitioner’s

investigator,

Rose

Lynn

Mangan,

stating

that

21

Furthermore, even assuming the truth of petitioner’s allegation

22

that he could not have discovered the recording by diligent effort

23

until 2001, petitioner did not need the recording to prepare and file

24

his state or federal petitions.

25

this petition in 2000, a year before he says he discovered the

26

Pruszynski recording, and five years before the recording allegedly

27

was analyzed with the newly available technology supposedly required

28

12

To the contrary, petitioner filed

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 13 of 67 Page ID
#:1811

1

to properly evaluate it.

2

petition without the Pruszynski recording, it could not have been a

3

necessary factual predicate to any claim contained in either his state

4

or federal petitions.

5

2003) (“AEDPA does not convey a right to an extended delay while a

6

habeas petitioner gathers every possible scrap of evidence that might

7

support his claim.”); Powelson v. Sullivan, 2006 WL 2263908, at *3-4

8

(N.D.Cal. Aug. 8, 2006) (concluding that where the petitioner was

9

present at his 1998 sentencing hearing he was not entitled to delayed
accrual

11

petitioner allegedly did not obtain physical evidence supporting his

12

claim until 2005).

14

2.

a

claim

See Jurado v. Burt, 337 F.3d 638, 644 (6th Cir.

10

13

of

Because petitioner was able to file this

challenging

his

sentence,

even

though

the

The factual predicate for petitioner’s Brady and ineffective

assistance of counsel claims

15

Petitioner alleges that the prosecution suppressed evidence of a

16

bullet fragment removed from Senator Kennedy’s head during the autopsy

17

and preoperative police photographs of external wounds; substituted a

18

“fake” bullet for one of the actual bullets; conspired with the Los

19

Angeles Police Department (“LAPD”) to alter the forensic evidence;

20

suppressed evidence that the gun matched to the bullets at trial was

21

not his, based upon a discrepancy between the serial number listed on

22

the evidence envelope and the serial number on petitioner’s gun;

23

delayed disclosure of the autopsy report; and suppressed evidence of

24

two bullet holes in a door frame at the murder scene, which petitioner

25

alleges to be proof of a second gunman because all eight bullets from

26

petitioner’s gun were otherwise accounted for. [Petition at 9-25, 25-

27

49, 49-56, 56-104, 107-132].

28

13

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 14 of 67 Page ID
#:1812

1

Delayed accrual is not appropriate on these claims because all of

2

the evidence petitioner relies upon was known to petitioner long

3

before the limitation period expired.

4

Most of the evidence petitioner cites as the basis for his claims

5

was known at the time of trial.

For example, petitioner relies

6

heavily on Thomas Noguchi’s 1968 autopsy report [see Petition at 9-16,

7

25-30, 113-118], but as petitioner concedes, that report was provided

8

to him during the trial. [See Petition at 114; DN 180 (Petitioner’s

9

Reply Brief on Actual Innocence) at 49; DN 153, Ex. E (Declaration of

10

Robert Kaiser)].

11

autopsy report in 1975 because it was attached as an exhibit to the

12

habeas petition filed in the California Supreme Court.

13

(autopsy report)]. Petitioner also relies on the testimony of DeWayne

14

Wolfer during the special proceedings.

15

about this testimony at the time it was offered in 1975 because

16

petitioner

17

petitioner’s counsel was present during the testimony. [See LD 27; LD

18

6, Ex. B]. Further, the 1969 Special Unit Senator Report (“SUS”)8 upon

19

which petitioner relies [see Petition at 37-38, 60] was readily

20

available in 1988, when it was released to the public. [LD 6, Exs. C

21

(John Kendall, “State Releases Records From R.F.K. Slaying,” Los

22

Angeles Times, April 20, 1988) & J (LAPD Final Report, Special Unit

23

Senator)].

24

testimony

and

At the very latest, petitioner possessed the 1968

his

counsel

[LD 13, Ex. B

Petitioner obviously knew

initiated

the

reinvestigation

and

To the extent that petitioner’s claims are based on
from

his

trial

or

alleged

irregularities

in

exhibits

25
26

8

27

Special Unit Senator was a task force set up by the Los
Angeles Police Department to investigate the shooting of Senator
Kennedy. [See LD 27 at 26; LD 6, Ex. J].

28

14

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 15 of 67 Page ID
#:1813

1

presented at his trial [see Petition at 9-25], petitioner obviously

2

knew about these “facts” at the time the testimony was given or the

3

exhibits were offered, in 1969.

4

holes in the door jamb near the crime scene [see Petition at 123-128]

5

is similarly unavailing because he attached a photograph of the door

6

frame bullet holes as an exhibit to his 1975 habeas petition filed in

7

the California Supreme Court.

8

petitioner knew, or reasonably could have known, all of the facts he

9

says he needed to pursue his claims as early as 1968, or at the

10

His reliance on evidence of bullet

[LD 13, Ex. E (photograph)].

Thus,

latest, 1988.

11

It is worth noting that all of the facts upon which petitioner’s

12

claims are predicted are the very same facts presented in his state

13

habeas petition. [See Petition at 9, n.1 (explaining that citations to

14

exhibits

15

petitioner’s habeas petition filed in the California Supreme Court on

16

June 20, 1997)]. Because petitioner knew of the factual basis for his

17

claims in time to file his state habeas petition on April 21, 1997, he

18

necessarily knew those facts in time to file a timely federal petition

19

before April 24, 1997.

20

are

references

to

exhibits

presented

in

support

of

The same analysis applies to petitioner’s claims of ineffective

21

assistance of counsel.

22

claims were known, or could have been known, in 1988 when the state

23

archives were made public.

24

known by April 21, 1997, when petitioner filed his state habeas

25

petition raising the same claims based upon the same evidence (other

26

than the Pruszynski recording) as presented in this federal petition.

27

[See LD 4 at 5].

28

The critical facts relevant to petitioner’s

At the latest, the predicate facts were

Thus, petitioner actually knew or had access to the
15

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 16 of 67 Page ID
#:1814

1

necessary facts in time to present his claims to federal court before

2

the limitation period expired.

3

D.

Actual innocence

4

Petitioner contends that the statute of limitation does not bar

5

consideration of his petition because he is actually innocent. [DN 153

6

at 18-57; DN 180 at 7-36].

7

The Supreme Court recently held that a credible showing of actual

8

innocence constitutes an exception to the bar of the statute of

9

limitation.

McQuiggin v. Perkins, 133 S.Ct. 1924, 1933-1934 (2013).

10

This exception, however, applies to a “severely confined category” of

11

cases – those in which a petitioner can demonstrate “that it is more

12

likely than not that no reasonable juror would have convicted him in

13

the light of the new evidence.”

14

(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); see also Lee v.

15

Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc) (“where an

16

otherwise time-barred habeas petitioner demonstrates that it is more

17

likely than not that no reasonable juror would have found him guilty

18

beyond a reasonable doubt, the petitioner may pass through the Schlup

19

gateway and have his constitutional claims heard on the merits”).

20

order to fit within the exception, a petitioner is required “to

21

support his allegations of constitutional error with new reliable

22

evidence — whether it be exculpatory scientific evidence, trustworthy

23

eyewitness accounts, or critical physical evidence — that was not

24

presented at trial.”

Perkins, 133 S.Ct. at 1933 & 1935

Schlup, 513 U.S. at 324; see Majoy v. Roe, 296

25
26
27
28

In

16

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 17 of 67 Page ID
#:1815

1

F.3d 770, 776 (9th Cir. 2002) (same).9

2

“consider[s]

3

exculpatory,” admissible at trial or not, and, “[o]n this complete

4

record, the court makes a probabilistic determination about what

5

reasonable, properly instructed jurors would do.”

6

938 (internal quotation marks omitted) (quoting House v. Bell, 547

7

U.S. 518, 538 (2006) and Carriger v. Stewart, 132 F.3d 463, 477–478

8

(9th Cir. 1997) (en banc)).

9

merely “casts doubt on the conviction by undercutting the reliability

10

of the proof of guilt, but not by affirmatively proving innocence,

11

that can be enough to pass through the Schlup gateway to allow

12

consideration of otherwise barred claims.”

13

(quoting Sistrunk v. Armenakis, 292 F.3d 669, 673 (9th Cir. 2002) (en

14

banc)).10

all

the

evidence,

old

and

The
new,

habeas

court

incriminating

then
and

Lee, 653 F.3d at

Even where post-conviction evidence

Lee, 653 F.3d at 938

15

The court’s analysis necessarily includes an assessment of “the

16

probative force of the newly presented evidence in connection with the

17

evidence of guilt adduced at trial.”

Schlup, 513 U.S. at 331–332.

18
19
20
21

9

“New” evidence does not necessarily mean newly discovered
evidence. Rather, it also includes evidence which was available but
was not presented at trial. Griffin v. Johnson, 350 F.3d 956, 963 (9th
Cir. 2003), cert. denied, 541 U.S. 998 (2004).
10

27

Both parties have submitted exhibits that arguably do not
satisfy the rules of evidence, including, for example, interviews
referenced in books or copies of newspaper articles containing
hearsay. Schlup, however, makes clear that this Court “is not bound
by the rules of admissibility that would govern at trial.” Schlup,
513 U.S. at 327–328 (quoting Friendly, Is Innocence Irrelevant?
Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160
(1970)). Further, neither party has objected to the Court considering
any of the lodged documents or exhibits submitted by the other.
Accordingly, the Court considers all of the documents and exhibits
presented by the parties regardless of their admissibility.

28

17

22
23
24
25
26

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 18 of 67 Page ID
#:1816

1

Further, a petitioner’s diligence, including any unexplained delay in

2

presenting new evidence, bears on the probable reliability of the

3

evidence and the ultimate determination whether the petitioner has

4

made the requisite showing of actual innocence. Perkins, 133 S.Ct. at

5

1935-1936 (citing Schlup, 513 U.S. at 332).

6

1.

Evidence presented at trial

7

In order to provide context for evaluating petitioner’s new

8

evidence, a brief summary of the evidence presented at trial is

9

necessary.11
At the trial it was undisputed that defendant fired the

10
11

shot

that

killed

12

established conclusively that he shot the victims of the

13

assault

14

defendant

15

evidence was presented of the circumstances surrounding the

16

shootings

17

evidence may be summarized as follows:

counts.
was

and

Senator

The
that

of

Kennedy.

principal
of

defense

diminished

defendant's

The

evidence

relied

capacity.

mental

also

upon

by

Extensive

condition,

which

18

About 8:30 p.m. on June 2, 1968, two days before

19

defendant shot Senator Kennedy, the senator made a speech in

20

the Coconut Grove at the Ambassador Hotel in Los Angeles,

21

following which he delivered a second speech outside the

22

hotel.

Defendant was seen at the hotel about 8:45 that

23
24
25
26
27
28

11

After independent review of the record, the Court adopts the
California Supreme Court’s factual summary as a fair and accurate
summary of the evidence presented at trial. See Sirhan, 7 Cal.3d at
717-726.
The factual summary is entitled to a presumption of
correctness pursuant to 28 U.S.C. § 2254(e)(1). See, e.g., Slovik v.
Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009); Moses v. Payne, 555 F.3d
742, 746 n.1 (9th Cir. 2009).
18

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 19 of 67 Page ID
#:1817

1

night by an acquaintance. A half hour or less after the

2

senator's second speech a hostess saw a man who looked like

3

defendant in the kitchen near the Coconut Grove.

4

During the day on June 4, 1968, defendant practiced

5

firing at a gun range for several hours and had also

6

practiced shooting at ranges on several prior occasions. On

7

June 4 he engaged in rapid fire with the .22 revolver he

8

used a few hours later to kill Senator Kennedy. The revolver

9

had been obtained by defendant in February 1968 when his

10

brother Munir paid a fellow employee for it.

11

A person who talked with defendant at the gun range on

12

June 4 testified that defendant stated he was “going to go

13

on a hunting trip with his gun,” that he told defendant it

14

was not permissible to use pistols for hunting “because of

15

the accuracy,” and that defendant said, “Well, I don't know

16

about that. It could kill a dog.”

17

About 10 or 11 p.m. on June 4, 1968, a secretary whose

18

duties included seeing that unauthorized persons were not

19

near the Embassy Ballroom of the Ambassador Hotel, saw

20

defendant near that room and asked him who he was, and he

21

turned

22

ballroom.

and

walked

toward

the

doors

leading

into

the

23

Shortly before midnight on the same day defendant asked

24

hotel employees if Senator Kennedy was going to come through

25

the pantry, and they told him that they did not know. One of

26

the employees observed defendant for about a half hour in

27

the pantry and noticed nothing unusual about his manner or

28

19

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 20 of 67 Page ID
#:1818

1

activity.
About midnight on June 4, Senator Kennedy made a speech

2
3

in

the

Embassy

Ballroom

4

Democratic

5

primary. Following the speech he and his entourage proceeded

6

toward the hotel's Colonial Room, which was then being used

7

as a press room. En route the senator stopped in the pantry

8

to shake hands with the kitchen staff. Suddenly defendant

9

darted toward the senator, pulled out a revolver, and fired

10

several shots. The senator and a man adjacent to him, Paul

11

Schrade, fell. Pandemonium ensued.

candidate

for

announcing

his

president

in

victory
the

as

a

California

12

A hotel employee grabbed defendant around the wrist of

13

the hand holding the gun, but defendant, who was still able

14

to move that hand, continued shooting. Irwin Stroll, William

15

Weisel, Elizabeth Evans and Ira Goldstein were injured by

16

the gunfire. Several persons joined in the struggle and

17

succeeded in restraining defendant, and one took the gun

18

from him. When asked, “Why did you do it?,” defendant

19

replied something to the effect “I can explain.”

20

The senator was taken to a hospital where he underwent

21

surgery. He subsequently died on June 6, 1968. According to

22

the autopsy surgeon, the cause of death was a gunshot wound

23

“to the right mastoid” that penetrated the brain; the

24

senator also received two additional gunshot wounds, one in

25

an armpit and another slightly lower. Expert testimony

26

indicated that the gun was an inch and a half or less from

27

the senator's head when the fatal bullet was fired and in

28

20

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 21 of 67 Page ID
#:1819

1

contact with him or within a few inches when the other

2

wounds were inflicted.

3

Around the time that the senator was taken to the

4

hospital the police arrived at the hotel and took custody of

5

defendant. Two officers, defendant and Jesse Unruh got into

6

a car and drove to the police station. En route the officers

7

advised defendant of his constitutional rights. Subsequently

8

Unruh asked defendant “Why did you shoot him?” and defendant

9

replied “You think I am crazy? You think I will tell you so

10

you can use it as evidence against me?” Unruh also heard

11

defendant say “I did it for my country.” Unruh believed that

12

defendant was not intoxicated, and police officers who were

13

with

14

thereafter reached the same conclusion.

defendant

at

the

time

of

his

arrest

or

shortly

15

About 12:45 a.m., minutes after defendant arrived at

16

the police station, he was seen by Officer Jordan. The

17

officer estimated that he was with defendant between four

18

and

five

hours

on

19

defendant

never

appeared

20

officer's many years on the force defendant was “one of the

21

most alert and intelligent people I have ever attempted to

22

interrogate.” Jordan initially identified himself and asked

23

defendant his name but received no response. The officer

24

then advised defendant of his constitutional rights, and

25

defendant, after asking a few questions, indicated he wished

26

to remain silent. Defendant, Jordan, and other officers

27

subsequently discussed various matters other than the case.

28

21

this

occasion.
irrational

Jordan
and

stated
that

in

that
the

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 22 of 67 Page ID
#:1820

1

Tapes of the conversations were played to the jury.

2

The police found various items on defendant's person,

3

including a newspaper article which in part noted that in a

4

recent speech Senator Kennedy “favored aid to Israel ‘with

5

arms if necessary’ to meet the threat of the Soviets.”

6

A trash collector testified that on one occasion he

7

told defendant he was going to vote for Kennedy in the

8

primary election and that defendant replied “What do you

9

want to vote for that son-of-a-b for? Because I'm planning

10

on shooting him.” On cross-examination the witness admitted

11

that following the assassination when asked if he would

12

testify he stated he “would not want to take the oath

13

because (he) hated Sirhan so much that (he) would do

14

anything to see him convicted.”

15

The prosecution also introduced documents found by the

16

police at defendant's home. The documents contain statements

17

in

18

including, inter alia, killing Senator Kennedy.12

defendant's

handwriting

regarding

various

matters

19
20
21

12

Later in the opinion, the California Supreme Court
summarized the contents of these documents as follows:

27

For example, one of the pages introduced by the defense
(which had been excluded by the trial court when the
prosecution attempted to introduce it) stated in part “I
advocate the overthrow of the current president to the
fucken (sic) United States of America. I have no absolute
plans yet — but soon will compose some. I am poor — This
country's propaganda says that she is the best country in
the world — I have not experienced this yet.... I firmly
support the communist cause and its people — wether (sic)
Russian, Chinese, Albanian, Hungarian or whoever — Workers
of the World unite, you have nothing to loose (sic) but your

28

22

22
23
24
25
26

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 23 of 67 Page ID
#:1821

1

Defendant, testifying in his own behalf, admitted

2

having shot Senator Kennedy, but claimed that he did not

3

remember having done so. He conceded, however, that he

4

stated “I killed Robert Kennedy wilfully, premeditatively,

5

with twenty years of malice aforethought.” ... Defendant

6

further testified that he ‘must have,’ or had no doubt that

7

he, shot the victims of the assault counts.

8

Defendant's account of what transpired on June 4 and 5,

9

was as follows: He intended to go to the races on June 4,

10

but did not like the entries and decided to go target

11

shooting instead. He took his revolver to a gun range,

12
13
14
15
16
17
18
19
20
21
22
23

Chains and a world to win.” Other pages introduced by the
defense stated, “2 June 67 . . . A Declaration of War
Against America ... When in the course of human events, it
has become necessary for me to equalize and seek revenge for
all the inhuman treatment committed against me by the
American people the manifestation of this Declaration will
be executed by its purporter (s) (sic) as soon as he is able
to command ... $2000 ... and to acquire some firearms ....
The victims of the party in favor of this declaration will
be or are now — the president, vice etc — down the ladder.
The time will be chosen by the author at the convenience of
the accused ... the author expresses his wishes very bluntly
that he wants to be recorded by historians as the man who
triggered off the last war ... Sirhan must begin to work on
uphold (sic) solving the problems and difficulties of
assassinating the 36th president of the glorious United
States.”
Sirhan, 7 Cal.3d at 734 n.13.

27

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. Sirhan, 7 Cal.3d at 736, 741.

28

23

24
25
26

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 24 of 67 Page ID
#:1822

1

stopping en route to buy ammunition, and stayed at the range

2

until about 5 p.m. He practiced shooting there but was not

3

the person who engaged in rapid fire. He had gone to gun

4

ranges on several prior occasions and practiced with the gun

5

because he “liked to” and “was interested ... in ... target

6

practicing perfection.” He first developed an interest in

7

guns as a member of a high school cadet corps. He did not

8

recall making a statement about killing a dog. He might have

9

said “it (apparently his gun) is strong enough to kill an

10

animal,” but he did not have in mind killing Senator

11

Kennedy. After leaving the range, he stopped to eat and

12

subsequently saw an article concerning a march for Israel,

13

which made him angry. He drove to the area where the march

14

was scheduled but found it was not on that date. On the

15

drive he passed Thomas Kuchel's headquarters and went in.

16

There someone mentioned a “bigger party” at the Ambassador.

17

The person did not mention whose party it was, and defendant

18

did not know there was to be a Kennedy party that night. He

19

went to the Ambassador, was mad at the Zionists, and started

20

to drink. He bought two Tom Collins during about an hour. He

21

does not recall how many drinks he had that evening. After

22

a while he felt high and returned to his car to go home but

23

was afraid to drive because of his condition and decided to

24

return to the hotel for coffee.

25

He did not recall picking up his gun but as a result of

26

what subsequently transpired he realized he must have done

27

so. Upon returning to the Ambassador, he found some coffee

28

24

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 25 of 67 Page ID
#:1823

1

and talked with a girl. The next thing he remembered he was

2

being choked.

3

He did not remember asking anyone “where Kennedy was

4

going to come through” and did not know if he asked “what

5

time (Kennedy) would be there.” He did not remember saying

6

“I did it for my country” but “Jesse Unruh must have been

7

correct in saying that (defendant made the statement).” He

8

recalled getting into the police car, being advised of his

9

constitutional rights, and various other matters following

10

his arrest.

11

Defendant also admitted having gone to the Ambassador

12

Hotel on June 2 where he heard Senator Kennedy speak but

13

denied having been in the kitchen that night. He stated that

14

the senator “looked like a saint” but that defendant still

15

had in the back of his mind a broadcast in which the senator

16

committed himself to sending jet bombers to Israel.

17

Defendant denied having made the statement to the trash

18

collector regarding killing Senator Kennedy.

19

Defendant further testified regarding his background as follows:

20

He is a Palestinian Arab. He was born in 1944 in New Jerusalem, and in

21

1948 he and his family moved to Old Jerusalem where they remained

22

until coming to the United States in 1956. Throughout his eight years

23

in Old Jerusalem there were intermittent bombings. He attended school

24

there. His family lived under poor conditions in Old Jerusalem (e.g.,

25

the whole family resided in one room with grossly inadequate toilet

26

facilities). He was told they were living as they were because “The

27

Jews kicked us out of our home.” He was also told of a massacre in

28

25

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 26 of 67 Page ID
#:1824

1

which 250 people including children were slaughtered in cold blood by

2

the Jews. While living in Old Jerusalem he went to a well for some

3

water, and when the bucket came up it contained a hand and it sickened

4

him. On one occasion he saw the exploded remains of a grocer he knew.

5

In 1956 he heard about aggression by Israel against the Arabs in the

6

Suez Canal. About a year after they came to the United States his

7

father returned to Jordan. In 1963 defendant graduated from high

8

school and subsequently attended college, but was dismissed in 1965

9

after missing classes. He thereafter worked with horses but left his

10

job in 1966 and did not find another job for a year. He read

11

everything available on the Arab-Israel conflict and on the occult, in

12

which he became interested in 1965. He joined the Rosecrucian Order in

13

1965. He performed several experiments such as concentrating on a

14

mirror and seeing the face of Robert Kennedy instead of his own.
Defendant also described in detail his views regarding

15
16

the Arab-Israel conflict and his hatred of the Zionists.

17

Additional evidence was introduced by the defense

18

regarding the bombings in Old Jerusalem during the period

19

defendant resided there, the various gruesome matters he saw

20

during his childhood, and his poor living conditions in that

21

city. Several defense witnesses also testified that they saw

22

defendant with a drink in his hand on the night of June 4,

23

1968.

24

In

support

of

his

defense

of

diminished

capacity

25

defendant called to the stand two psychiatrists Eric Marcus,

26

M.D. (a court-appointed psychiatrist) and Bernard Diamond,

27

M.D.; two psychologists who administered psychological tests

28

26

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 27 of 67 Page ID
#:1825

1

to defendant (Drs. Orville Richardson and Martin Schorr) and

2

four psychologists who evaluated the tests administered to

3

defendant by Dr. Richardson and/or Dr. Schorr (Drs. Stephen

4

Howard, William Crain, Georgene Seward, and George De Vos).

5

Doctors Marcus and Diamond testified that at the time

6

of

the

alleged

7

schizophrenic, and Dr. Diamond further stated that defendant

8

was

9

consciousness

then

in

murder

a
as

defendant

“dissociated
a

...

According

state

consequence

to

both

was

of

of

a

paranoid

restrictive

(his)

psychotic

psychiatrists,

defendant

10

condition.”

11

lacked the capacity to maturely and meaningfully reflect

12

upon the gravity of the contemplated act of murder and to

13

comprehend his duty to govern his actions in accord with the

14

duties imposed by law, and they explained the reasons for

15

their conclusion. They further testified concerning the

16

origin, development, and manifestations of the illness.
Doctors Richardson, Schorr, Crain, De Vos and Seward

17
18

likewise

19

schizophrenic, and, according to Dr. Schorr, defendant went

20

into

21

Richardson and Schorr also agreed with the psychiatrists

22

that

23

meaningfully reflect upon the gravity of his contemplated

24

act of murder and to harbor malice aforethought.

a

testified

dissociate

defendant

that

state

lacked

defendant

before

the

the

capacity

was

a

shooting.

to

paranoid

Doctors

maturely

and

25

Dr. Howard concluded that defendant has “paranoid

26

features” and is “a borderline psychotic person,” i.e., a

27

person “who can go in and out of psychosis, depending on the

28

27

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 28 of 67 Page ID
#:1826

1

... relative minor stresses ... in daily life.”

2

In rebuttal the prosecution called to the stand Seymour

3

Pollack, M.D., a Professor of Psychiatry and Law at the

4

University of Southern California. Dr. Pollack interviewed

5

defendant eight times, spending about 24 hours with him. The

6

first such interview was on January 19, 1969. The doctor

7

also observed defendant in the courtroom during preliminary

8

proceedings that began June 28, 1968, and during the trial.

9

In addition he interviewed members of defendant's family;

10

reviewed the psychological tests given by Drs. Richardson

11

and Schorr to defendant and numerous other matters such as

12

the

13

conversations

14

conference

15

concerning the case. The overall time Dr. Pollack spent on

16

the case was close to 200 hours.

grand

jury

transcript

after

with

his

other

and

tapes

apprehension;
psychiatrists

of
and

and

defendant's
attended

a

psychologists

17

With respect to his diagnosis, Dr. Pollack testified:

18

Defendant was not “clinically psychotic,” i.e., there were

19

“no observable signs or symptoms to a degree and of a kind

20

that would allow (the witness) as a psychiatrist to say that

21

(defendant) was mentally ill as a psychotic person.” There

22

was insufficient proof of schizophrenia.

23

On the other hand, according to Dr. Pollack, defendant

24

is, and was at the time of the killing and for “some time

25

before that,” mentally ill and emotionally disturbed, and

26

his mental illness was substantial, i.e., of a degree and

27

kind that is not present in most of the population.

28

28

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 29 of 67 Page ID
#:1827

1

Dr. Pollack concluded that defendant is a paranoid

2

personality, which is not a psychosis but a form of mental

3

illness

4

personality characteristics. Such a personality is more

5

suspicious and sensitive than most people, “takes things

6

more

7

person,” and tends to collect grievances.

8

in

which

personally

Dr.

there

to

Pollack

a

is

an

greater

testified

exaggeration

degree

that

than

defendant

of

the

also

certain

average

is

“a

9

borderline schizophrenic,” i.e., “a person who has ... or

10

shows some minimal evidence of peculiarity in his thinking,

11

in his feeling ... but who doesn't have, who hasn't shown

12

... any clinical signs or symptoms of psychosis.” According

13

to Dr. Pollack, there are indications that defendant has “a

14

psychotic personality structure,” and a person with such a

15

structure is not “held together as well” and becomes “more

16

easily unglued than ordinary.”
* * * * *

17
18

Dr. Pollack further testified that “I believe the

19

assassination of Senator Robert Kennedy was triggered by

20

political

21

emotionally

22

Senator Robert Kennedy as an individual who should die, not

23

only because of the Kennedy promise to give Israel the jet

24

bombers that would cause death to thousands of Arabs, in

25

Sirhan's opinion, but also because Sirhan wanted the world

26

to see ... how strongly our United States policy was in the

27

pro-Israel-anti-Arab

28

reasons

with

charged;

I

which
believe

movement
29

(defendant)

was

that

focused

in

Sirhan

...

spite

highly

of

on

our

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 30 of 67 Page ID
#:1828

1

Government’s professed interest for the underdog, and world

2

justice” and “Sirhan ... saw himself as a defender of the

3

Arab cause and, as an individual who through this act would

4

bring world attention to the Arab plight and also ...

5

materialize his fantasy of success.”

6

He testified, “In my opinion when Sirhan shot Kennedy,

7

Sirhan’s mental capacity was not impaired to the extent of

8

diminished capacity to maturely and meaningfully premeditate

9

and

deliberate

and

reflect

upon

the

gravity

of

the

10

contemplated act of shooting the Senator” and that Sirhan

11

“did not have ... diminished mental capacity to harbor

12

malice

13

considered

14

foregoing conclusions: He found no evidence of any altered

15

state of consciousness or dissociate state, and various

16

matters indicated to the contrary. For example, testimony of

17

eyewitnesses showed defendant was aware of the significance

18

of questions asked him and the tape recordings of his

19

conversations at the police station indicated “a great deal

20

of reasoning ability.” There was no substantial impairment

21

of his attention (i.e., ability to attend to his environment

22

in

23

perceive

24

experiences), understanding (i.e., ability not simply to

25

know but to appreciate “in a fuller sense”), ability to

26

associate

27

emotions were “not that disturbed.” He was becoming more

28

30

a

aforethought.”
the

meaningful
objects

ideas

The

following

a

explained

“functions”

manner),
in

doctor

perception

meaningful

logically,

and

in

manner,

of

he

reaching

(i.e.,

freedom

that

the

ability
using

choice.

to

past

His

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 31 of 67 Page ID
#:1829

1

irritable

and

2

evidence

3

foresight (i.e., his ability to look forward and plan)

4

appeared to be reasonably intact, and the same was true

5

regarding his memory.

that

explosive
“this

but

was

an

there

was

impulsive

no

substantial

explosion.”

His

* * * * *

6
7

Dr. Pollack also testified that defendant believed it

8

was “good” and “right” to kill Senator Kennedy and had that

9

belief when he made the entries in his notebooks. Defense

10

counsel then asked, “As a matter of fact, he felt it was his

11

duty almost to do it, didn't he?”, and Dr. Pollack replied,

12

“Almost, yes. As an Arab he felt that it was his duty, that

13

he would be looked up to by the Arab world and that he would

14

be considered a hero.” Dr. Pollack indicated that he did not

15

consider defendant's belief that it was “right” and “good”

16

to kill the senator a delusion and stated that “it's there

17

that I think a major difference exists between the other

18

psychiatrists and myself.” He testified defendant gave no

19

evidence of believing himself to be a person chosen by God

20

to kill Kennedy whom he regarded as the devil - that such a

21

belief would have been a delusion. Dr. Pollack further

22

testified that defendant did not expect to be punished for

23

his act because in his view Kennedy and others having the

24

senator's

25

murderers.

26
27
28

views

about

the

Arab-Israel

Sirhan, 7 Cal.3d at 717-726 (footnotes omitted).
2.

“New evidence”
31

conflict

were

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 32 of 67 Page ID
#:1830

1

In support of his claim that he falls within the actual innocence

2

exception to the statute of limitation, petitioner relies on the

3

following evidence: an audio analysis of the Pruszynski tape recording

4

concluding that more than eight shots were fired; eyewitnesses who

5

said that petitioner was in front of rather than behind Senator

6

Kennedy,

7

witnesses who heard more than eight shots and eyewitnesses who saw a

8

second shooter; ballistics evidence demonstrating that the bullet

9

identified

and

too

as

far

the

away

to

“Kennedy

have

neck

inflicted

bullet”

the

was

fatal

not

wounds;

fired

from

10

petitioner’s gun; and the opinion of Dr. Daniel Brown that petitioner

11

was subjected to mind control or hypno-programming. [DN 180 at 15-35;

12

see also DN 153 at 37-57; DN 195 (Sur-Reply on Issue of Actual

13

Innocence) at 2-36].13
The evidence regarding the possibility that there were more than

14
15

eight

shots

fired,

problems

with

the

ballistics

evidence,

and

16

eyewitnesses is intended to show that although petitioner was in the

17

kitchen pantry and fired his gun at Senator Kennedy, he did not fire

18

the bullet that ultimately hit and killed Senator Kennedy; rather, a

19

second shooter fired the Kennedy neck bullet and is responsible for

20

the death of Senator Kennedy.

21

to show that petitioner was not responsible for the murder of Senator

The psychological evidence is intended

22
13

27

Both the petition and portions of petitioner’s briefs
addressing the merits of his claims include numerous other allegations
and citations to evidence relating to, among other things, the alleged
existence of a second shooter and revelations of purported anomalies
and inconsistencies in the prosecution’s evidence.
The Court’s
discussion is restricted to the evidence that petitioner’s counsel has
identified as supporting petitioner’s claim that he falls within the
actual innocence exception to the statute of limitation. Accordingly,
petitioner’s numerous other allegations are not addressed.

28

32

23
24
25
26

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 33 of 67 Page ID
#:1831

1

Kennedy because he was essentially unconscious at the time he fired

2

his gun and was acting under the psychological manipulation of an

3

unnamed person or persons.

4

not petitioner fired the bullet that killed Senator Kennedy, he is not

5

liable for the murder.

Thus, on petitioner’s theory, whether or

6

The Pruszynski recording

7

In 2005, Philip Van Praag examined the Pruszynski recording and

8

identified thirteen distinct “shot-sounds” on the tape.

9

his analysis, Van Praag concluded that two different guns had been

10

discharged – petitioner’s, which fired eight shots from east to west,

11

and a different gun, which fired five shots from west to east.

12

According

13

demonstrates that there was in fact an additional shooter” because

14

petitioner’s revolver could only fire eight shots.

15

opined that some of the shots were fired so close together in time

16

that they could not have come from the same weapon. [DN 153 at 38-40,

17

Ex. A (Joling Declaration); DN 180, Ex. C (Van Praag Declaration)].

to

petitioner,

Van

Praag’s

analysis

Based upon

“conclusively

Van Praag also

18

Van Praag’s opinion is far from “conclusive” evidence of a second

19

gunman because other experts analyzing the Pruszynksi recording have

20

reached contrary conclusions. [LD 17 (Mel Ayton, How the Discovery

21

Channel

22

Acoustics Debate, George Mason University’s History New Network,

23

November 20, 2007); LD 18 (Steve Barber, The Robert F. Kennedy

24

Assassination: The Acoustics Evidence, George Mason University’s

25

History News Network, March 25, 2007; LD 23 (Philip Harrison: Summary

26

Curriculum Vitae); LD 24 (analysis of the Pruszynski Tape by Acoustics

27

Expert Philip Harrison, Appendix B to Mel Ayton,

28

Duped

the

American

Public

33

About

the

RFK

Assassination

The Forgotten

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 34 of 67 Page ID
#:1832

1

Terrorist: Sirhan Sirhan and the Assassination of Robert F. Kennedy

2

(Potomac Books, 2007)].14

3

evidence that another firearm was discharged during the assassination

4

is not sufficient to demonstrate that petitioner is innocent.

In any event, as discussed in detail below,

5

Eyewitnesses to petitioner’s position at the time of the shooting

6

Petitioner alleges that twelve or more eyewitnesses could have

7

testified that they observed petitioner to be in front of Senator

8

Kennedy and at least one foot away from him at the time of the initial

9

gunshot.

He also alleges that witnesses could have testified that

10

petitioner’s hand was pinned down after he fired two or three shots.

11

Petitioner contends that this evidence would have proven that he could

12

not have shot Senator Kennedy because Senator Kennedy was shot point

13

blank from behind. [DN 180 at 20-24 & Ex. A (summary of eyewitness

14

evidence regarding petitioner’s position); DN 195 at 30-36 (discussion

15

of how eyewitness evidence would demonstrate petitioner’s innocence)].

16

Evidence that petitioner was “in front” of Senator Kennedy

17

One flaw with the eyewitness evidence relied upon by petitioner

18

is that none of the witnesses actually saw petitioner at the moment

19
14

20
21
22
23
24
25
26

In particular, Phillip Harrison, a forensic audio examiner
from the United Kingdom, analyzed the Pruszynski recording and
concluded that no more than eight shots were fired. [LD 24].
Petitioner complains that Harrison’s opinion is not reliable because
Harrison did not know where in the room the Pruszynski microphone was
located, and because he “appeared” to be working from a dubbed copy of
one of Van Praag’s master recordings. [DN 180 at 18]. Petitioner also
attacks the reliability of another expert, Steve Barber, whose
conclusion contradicted Van Praag’s.
The Court need not resolve
petitioner’s challenges, which are directed to the weight or
credibility of expert opinions that contradict Van Praag’s opinion.
The existence of contradictory expert opinions is sufficient to
preclude Van Praag’s opinion from constituting “conclusive” proof of
petitioner’s theory.

27
28

34

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 35 of 67 Page ID
#:1833

1

Senator Kennedy was first shot. All were looking elsewhere, mostly at

2

Senator Kennedy, and were startled by the sound of what many believed

3

was a firecracker.

4

gunman stepping or rushing toward Senator Kennedy, then reaching or

5

lunging toward Senator Kennedy, extending his hand toward Senator

6

Kenney as if to shake his hand, pointing a revolver toward Senator

7

Kennedy, and then firing that gun at Senator Kennedy.

8

Senator Kennedy move his hand up toward his face immediately after the

9

first shot. [DN 180, Ex. A]. These eyewitness accounts are consistent

10

with the testimony presented at trial regarding the movements of the

11

gunman and Senator Kennedy immediately before and after the first

12

shot. [See RT 3097-3101, 3123, 3130-3133, 3189, 3203, 3213-3216, 3220,

13

3387, 3396-3398, 3401, 3423-3426; see also RT 4529-4531 (Noguchi’s

14

testimony that based upon the gunshot wounds, Senator Kennedy moved

15

his arm between two of the gunshots)].

The witnesses on whom petitioner relies saw the

They also saw

16

Many of the witnesses on whom petitioner relies – namely, Edward

17

Minasian, Juan Romero, Valerie Schulte, Karl Uecker, and Frank Burns

18

– actually did testify at petitioner’s trial that petitioner was in

19

front of Senator Kennedy at the time of the shooting. [RT 3095-3097,

20

3155-3156, 3188-3189, 3396-3399, 3426-3427].

21

position in front of Senator Kennedy at the time of the shooting is

22

not

23

concluded

24

petitioner having fired the fatal shot.

new

evidence,
was

but

either

rather

evidence

inaccurate,

or

that
true

Thus, petitioner’s

the
but

jury

heard

consistent

and
with

25

Perhaps most importantly, the eyewitness testimony consistently

26

described Senator Kennedy as turning his head just as the shots were

27

fired.

28

That explains how the bullet could have struck the back of his
35

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 36 of 67 Page ID
#:1834

1

head even if petitioner was technically “in front” of Senator Kennedy.

2

[See RT 3096, 3100-3102, 3220].

3
4

Evidence that petitioner’s hand was pinned down after firing the
first shots

5

According to petitioner, evidence of his innocence can be found

6

in eyewitness accounts stating that petitioner’s hand was pinned down

7

by Minasian and Uecker after petitioner fired two or three shots and

8

consequently petitioner’s remaining shots were fired wildly around the

9

pantry. [DN 180 at 23-24, Ex. B (summary of witness accounts)].

10

According to petitioner, this evidence demonstrates he could not have

11

been in a position to fire the four close range shots that struck

12

Senator Kennedy, because those shots were fired from behind and below

13

Senator Kennedy.

14

argument based upon the evidence introduced at trial.

15

upon which it is based consists of the testimony of Minasian, Uecker,

16

and Martin Patrusky. [See DN 180, Ex. B, RT 3095-3100, 3156-3160,

17

3387-3388].

18

Minasian tackled petitioner after he fired two or three shots, and

19

that the remaining shots were fired while petitioner’s arm was pinned

20

down on the steam table.

21

this testimony was consistent with the forensic evidence or they

22

believed that the eyewitnesses may have erred in calculating whether

23

two, three, or more shots had been fired before they jumped into

24

action.

Petitioner’s argument, however, is merely a new
The evidence

The jury, however, heard evidence that Uecker and

Therefore, either the jurors concluded that

25

In any event, this is not affirmative evidence that petitioner

26

did not shoot Senator Kennedy. Senator Kennedy suffered three gunshot

27

wounds, and all wounds were sustained in “rapid succession.” [RT 4531-

28

36

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 37 of 67 Page ID
#:1835

1

4533].

2

petitioner fired three or four shots at Senator Kennedy before Uecker

3

grabbed his arm, and that petitioner fired four or five more shots

4

before the gun was pinned to the steam table. [RT 3097-3100, 3123-

5

3124, 3130-3133, 3272, 3398-3399, 3452, 3474].

witnesses,

including

Minasian,

testified

that

Evidence that petitioner was too far away from Senator Kennedy to

6
7

Several

inflict the fatal gunshot wound

8

Petitioner argues that none of the witnesses placed his gun

9

within inches of Senator Kennedy, so he could not have fired the fatal

10

shot.

11

misplaced because Uecker’s account of the shooting is especially

12

incriminating.

13

hand after his speech and guided him through the kitchen pantry on the

14

way to the press room. [RT 3088].

15

of Uecker’s hand several times in order to shake hands with kitchen

16

staff. [RT 3090-3094].

17

Kennedy, with Senator Kennedy immediately to Uecker’s left.

18

Senator Kennedy finished shaking hands with the last man, Uecker

19

grabbed his hand and said, “Let’s go now, Senator.” [RT 3097]. Uecker

20

turned toward the right and immediately felt someone brush in front of

21

him, positioning himself between Uecker and the steam table. [RT 3095,

22

3097].

23

shot.

24

point, Uecker saw petitioner right in front of him holding a gun. [RT

25

3097].

26

down onto the steam table, but petitioner continued to shoot. [RT

27

3097-3098].

28

Petitioner relies on Uecker’s testimony, but such reliance is

Uecker testified that he held Senator Kennedy’s right

Senator Kennedy stopped and let go

Uecker remained within arm’s reach of Senator
When

Uecker heard what sounded like a firecracker, then heard a
Senator Kennedy began to “fall out of” Uecker’s hand.

At this

Uecker grabbed for the gun and ended up forcing petitioner

Because Uecker was near enough to be touching Senator
37

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 38 of 67 Page ID
#:1836

1

Kennedy and petitioner passed so closely in front of Uecker that he

2

brushed

3

petitioner’s contentions.

4

have concluded that when petitioner stepped in front of Uecker, who

5

was within arm’s reach of Senator Kennedy, petitioner was close enough

6

to have fired the fatal shot.15

against

him,

Uecker’s

testimony

actually

undermines

From Uecker’s testimony, the jury could

7

Nevertheless, petitioner urges the Court to consider evidence

8

that in 1975 Uecker said that petitioner’s gun never came closer than

9

1.5 feet from Senator Kennedy. [See 1992 Request to the Los Angeles

10

County Grand Jury February 20, 1975, Statement of Karl Uecker, found

11

at www.maryferrell.org].16

12

Evidence

that

Uecker

(or

other

eyewitnesses)

did

not

see

13

petitioner in the precise position that the autopsy report concluded

14

the shooter must have fired from does not demonstrate petitioner’s

15

innocence.

16

inaccurate, even under far less chaotic circumstances.

17

New Hampshire, 132 S.Ct. 716, 728 (2012) (noting research indicating

As a general matter, eyewitness testimony is notoriously
See Perry v.

18
15

19
20
21
22
23

For the same reasons, petitioner’s reliance on Martin
Patrusky’s F.B.I. statement is unfounded. Patrusky observed a man
“pushing his way toward Senator Kennedy and Karl Uecker.... He pushed
himself around to the right of Uecker. This man leaned around the
left side of Uecker’s body and extended his hand toward Senator
Kennedy.... I immediately heard a sound like that of a firecracker.”
[DN 180, Ex. A].
Patrusky’s observations corroborate Uecker’s
testimony and place petitioner immediately next to Senator Kennedy.
16

27

Contrary to his 1975 statement, Uecker did not testify to
this, and his prior statements to police do not include a similar
statement regarding the distance between petitioner’s gun and Senator
Kennedy. [See RT 3075-3133; September 11, 1968 Interview by F.B.I.,
found at maryferrell.org; June 5, 1968 Interview with LAPD, found at
maryferrell.org]. Nevertheless, the Court assumes Uecker would testify
that he never saw petitioner’s gun get closer than 1.5 feet from
Senator Kennedy.

28

38

24
25
26

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 39 of 67 Page ID
#:1837

1

that as many as one in three eyewitness identifications is inaccurate

2

and stating that “[w]e do not doubt either the importance or the

3

fallibility of eyewitness identifications.”); United States v. Wade,

4

388 U.S. 218, 228 (1967) (“The vagaries of eyewitness identification

5

are well-known; the annals of criminal law are rife with instances of

6

mistaken identification.”); Wise, Fishman & Safer, How to Analyze the

7

Accuracy of Eyewitness Testimony in a Criminal Case, 42 Conn. L. Rev.

8

435, 452 (2009) (“For decades, psychologists and defense attorneys

9

have

maintained

that

eyewitness

testimony

can

be

notoriously

10

unreliable, and courts, including the United States Supreme Court,

11

have recognized this fact.”).

12

speech was rife with circumstances that would render it difficult to

13

observe with precision details such as distance – it was after

14

midnight, hot, very crowded, and emotionally charged.17

15

3086, 3105-3106, 3118].

The scene after Senator Kennedy’s

[See RT 3081-

Moreover, the ballistic evidence presented at trial corroborated

16
17

the

extensive

eyewitness

testimony

that

petitioner

shot

Senator

18

Kennedy.

19

the victims, including the bullet that struck Senator Kennedy’s neck,

20

were fired from petitioner’s revolver, and that these bullets were .22

21

caliber Mini-Mag ammunition.18 [RT 4152-4153, 4165].

Expert testimony showed that the three bullets removed from

These bullets

22
23
24
25

17

Among the factors identified as relevant to determining the
weight of eyewitness testimony include: the opportunity of the witness
to observe the alleged perpetrator and criminal act, and the stress,
if any, to which the witness was subjected at the time of the
observation. See CALJIC No. 2.92.

26
18

27
28

Petitioner disputes the accuracy of the ballistics evidence,
and his allegations are discussed in detail below.
39

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 40 of 67 Page ID
#:1838

1

were the same type of ammunition bought by petitioner just days before

2

the assassination. [RT 3762-3768, 3893-3897, 4070, 4076-4081, 5153].

3

In addition, when he was arrested, petitioner had two .22 caliber

4

bullets on his person. [RT 3517-3519].
This

5

“new”

evidence

that

the

eyewitnesses

all

agreed

that

6

petitioner fired his gun at Senator Kennedy but placed petitioner a

7

foot or so farther away from Senator Kennedy than the autopsy report

8

indicated

9

innocence.

he

was,

is

not

affirmative

evidence

of

petitioner’s

A jury presented with such testimony might find that the

10

eyewitnesses were not paying attention to petitioner’s exact location

11

or were unable to accurately judge distances as a result of the

12

crowded and chaotic scene.

13

Evidence about the angle of petitioner’s gun

14

Petitioner apparently believes that the observations of these

15

eyewitnesses also eliminate him as the shooter because the forensic

16

evidence showed that the shots were discharged at an upward angle, but

17

no witnesses testified that petitioner’s arm and gun were in any

18

position other than a horizontal one. [DN 180 at 23].

19

overinflated argument is easily punctured. First, the evidence showed

20

that the gunshot wounds were inflicted at merely a “very slightly

21

upward” angle. [RT 4525].

22

whom petitioner relies did not actually see Senator Kennedy get shot,

23

and none were able to describe the exact position of petitioner, the

24

gun, or Senator Kennedy at the crucial moment.

25

B].

26

motion, nothing about which precluded petitioner from firing his gun

27

at a “very slightly upward” angle.

28

Petitioner’s

Second, as discussed, the eyewitnesses on

[See DN 180, Exs. A &

Instead, the witnesses describe a chaotic scene with abundant

40

In fact, Lisa Urso observed

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 41 of 67 Page ID
#:1839

1

petitioner extend his right arm in an “upward position” just before

2

shooting his gun. [DN 180, Ex. A at 8].

3

petitioner compared with the height of Senator Kennedy provides a

4

logical explanation for the slight upward angle of the bullet. [RT

5

4514 (Senator Kennedy was five feet, ten and a half inches); LD 11,

6

Ex. 21 (Declaration of Robert Blair Kaiser stating that petitioner is

7

five feet, six inches).
In

8
9

sum,

nothing

about

these

Furthermore, the height of

eyewitness

accounts

rules

out

petitioner as the shooter.

10

Ballistics evidence

11

Petitioner alleges that contrary to the trial evidence, no match

12

was ever made between the neck bullet actually removed from Senator

13

Kennedy and petitioner’s gun.

14

removed a bullet from Senator Kennedy’s neck during the autopsy and

15

placed a “TN31" mark on its base, but he was never asked to identify

16

this bullet during his testimony.

17

admitted into evidence as Exhibit 47 at trial based upon the testimony

18

of criminalist DeWayne Wolfer, who testified that he compared the neck

19

bullet and two bullets taken from other victims to test bullets fired

20

by petitioner’s gun and concluded that they had been fired from the

21

same gun. [RT 4128-4194].

22

the authenticity of the bullet, Wolfer was never asked whether Exhibit

23

47 bore the “TN31" mark. [RT 4129, 4157-4160].

Petitioner points out that Dr. Noguchi

[DN 180 at 24-30].

The bullet was

Because petitioner’s counsel stipulated to

24

Petitioner relies on the fact that Patrick Garland, one of the

25

independent examiners in the 1975 reexamination, described Exhibit 47

26

as having the markings “DW” and “TN” on its base, but did not mention

27

“31.”

28

Petitioner points out that Garland also described the bullet
41

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 42 of 67 Page ID
#:1840

1

that allegedly struck Goldstein as bearing the mark “6" even though

2

the doctor who removed the bullet marked it with an “x.”

3

petitioner, this discrepancy demonstrates that Wolfer “substituted”

4

bullets and lied when he testified that the bullets from the victims

5

matched the test bullets fired from petitioner’s gun. [DN 180 at 24-30

6

& 38-43].

According to

7

To begin with, the problems with the ballistics evidence involve

8

the bullet that struck Senator Kennedy in the armpit and traveled to

9

his neck.

This was not the fatal bullet.

Rather, the bullet that

10

penetrated Senator Kennedy’s brain from behind his right ear was the

11

cause of death. [RT 4517, 4524-4526, 4529, 4534].19

12

petitioner could show that prosecution witnesses substituted bullets

13

in order to obtain false testimony of a match between his gun and the

14

bullets involved in the shooting, such evidence would undermine

15

confidence in the jury’s verdict of petitioner’s guilt.

16

following reasons, however, petitioner has not made such a showing.

17

Nevertheless, if

For the

During the 1975 reinvestigation of the ballistics evidence,

18

Wolfer testified at length.

He was asked to find his own initials on

19

the neck bullet, which he did, stating they were on the “front of the

20

bullet.”

21

Dr. Noguchi was on the Coroner’s evidence envelope containing the

22

bullet; and Dr. Noguchi’s writing was already on the envelope when

23

Wolfer first received it before trial. [LD 27 at 261-264].

[LD 27 at 247-250].

Writing belonging to both Wolfer and

When

24
19

27

This bullet shattered in Senator Kennedy’s head and experts
were unable to retrieve a sufficient portion of it to test. [RT 4525;
LD 27 at 98; LD 6, Ex. N (Partial Transcript of Tomas Noguchi’s
Statements to Special Hearing Conducted by Supervisor Baxter Ward) at
86].

28

42

25
26

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 43 of 67 Page ID
#:1841

1

Garland prepared his evidence index for the 1975 reinvestigation, he

2

noted the makings “TN” and “DW”20 on the bullet, but not “31.” [LD 6,

3

Ex. E].21

4

gun did not fire the fatal bullet, in part because Garland never

5

indicated that the “31" was absent (perhaps because he simply was not

6

asked to look for it).

The discrepancy is insufficient to show that petitioner’s

7

Petitioner further alleges that Wolfer used a different revolver

8

with a different serial number to test the bullets. [DN 180 at 28, 42-

9

43].

This claim is based upon the fact that the evidence envelope

10

containing the test bullets used to match the victim bullets to the

11

gun retrieved from petitioner at the crime scene (serial no. H-53745)

12

referenced a weapon with a serial number from a different gun that was

13

not petitioner’s (serial no. H-18602).

14

envelope,

15

introduced as Exhibit 55 had been fired from petitioner’s revolver

16

(Exhibit 6) and that Wolfer compared those test bullets with the

17

victim

18

reinvestigation, Wolfer testified in detail about the erroneous serial

19

number marked on the envelope for Exhibit 55.

20

June 5, 1968, he obtained the revolver taken from petitioner (serial

21

number H-53725), loaded it with eight bullets of the identical

22

ammunition type removed from the victims, fired all eight test rounds

the

trial

bullets.

[RT

testimony

was

4156-4160].

Despite the mismarking of the
clear

In

that

addition,

the

test

during

bullets

the

1975

He explained that on

23
24

20

TN and DW are the initials for Thomas Noguchi and DeWayne
Wolfer, respectively.

25
21

27

Of course, as petitioner was a party to the 1975
reinvestigation into the ballistics, this “evidence” was known to him
at that time, a quarter of a century before he presented it in this
federal habeas corpus petition. [See LD 27].

28

43

26

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1

into a water tank, and recovered seven of them.

On that day or the

2

following day, Wolfer compared one of the test rounds to the victim

3

bullets. [LD 27 at 60-61, 107, 127-128, 170-171, 175, 177, 183, 193,

4

195-196, 335, 339].

5

June 6, 1968, and Wolfer testified before the Grand Jury on June 7,

6

1968. [LD 27 at 128].

7

Grand Jury evidence envelope [LD 27 at 114, 129; LD 6, Ex. L

8

(photograph of envelope)], and took the remaining three bullets back

9

to his office in case further testing was needed.

Petitioner’s gun was taken to the Grand Jury on

Wolfer placed four of the test bullets into a

Those three

10

remaining bullets were entered into evidence at petitioner’s trial

11

(Exhibit 55). [LD 27 at 103-105, 113-114, 120-123, 128-132, 136-139].

12

Grand Jury Exhibit 5B was dated on June 7, 1968, and contained the

13

correct serial number from petitioner’s gun (H-53725). [LD 27 at 179,

14

184-185, 188-189; see LD 6, Ex. L (photograph of Exhibit 5B)].

15

Exhibit 55 was not dated until the time of trial and contained the

16

wrong serial number (H-18602). [LD 27 at 137-140, 185]. The error was

17

discovered after the trial and the appeal concluded. [LD 27 at 122-

18

125, 174-175].

19

Wolfer

explained

that

on

June

10,

1968,

shortly

after

20

petitioner’s gun had been placed in the custody of the Superior Court,

21

Wolfer

22

requiring either petitioner’s gun or one of an identical make and

23

model.

24

determine whether it was possible that purported witnesses had heard

25

gunshots from a certain location) and a gunshot residue test (to

26

determine the distance from which the gun was fired when Senator

27

Kennedy was hit). [LD 27 at 133, 159-160, 166, 175-176; RT 4181-4182,

28

44

determined

that

he

needed

to

run

two

additional

tests,

In particular, Wolfer needed to conduct a sound test (to

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 45 of 67 Page ID
#:1843

1

4223].

2

gun was used to conduct these additional tests.

3

testified that he used a different gun, stating that he employed “a

4

gun which was the exact make and model and within a very close serial

5

number of [petitioner’s] weapon” to conduct the muzzle distance test.

6

[RT 4179-4182].

7

point. [RT 4200-4206, 4223-4224].

Moreover, Wolfer

Petitioner’s counsel cross-examined Wolfer on this

In his 1975 reinvestigation testimony, Wolfer explained that he

8
9

Petitioner’s counsel was informed at trial that a different

entered the wrong serial number on Exhibit 55 by mistake.

He said

10

that at the time of trial, several months after the test-firing, he

11

requested the serial number from petitioner’s gun, but was given the

12

number of the gun taken from the Los Angeles Police Department’s

13

property department for use in the sound and muzzle distance tests.

14

Consequently, Wolfer wrote that number (H-18602) by mistake. [LD 27 at

15

122-125, 140, 174-175, 185]. Wolfer clarified that he only test-fired

16

petitioner’s gun to obtain bullets for comparison purposes. [LD 27 at

17

175].

18

As for petitioner’s contention that the 1975 reinvestigation

19

panel concluded that the Kennedy neck bullet (as well as the bullets

20

from victims Goldstein and Weisel) definitely were not fired from

21

petitioner’s gun [DN 180 at 28], petitioner misrepresents the final

22

report.

23

concluded that the three bullets were consistent with having been

24

fired from the same gun, but the panel explained that a conclusive

25

match to petitioner’s gun was impossible due to extrinsic factors,

26

such as “barrel fouling” and “possible loss of fine detail over

27

intervening years.” [LD 6, Ex. B].

28

Contrary to petitioner’s contention, the panel unanimously

45

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1

In sum, petitioner has pointed out some gaps in the ballistics

2

evidence.

At best, however, petitioner has raised a question whether

3

the bullet shown to Wolfer that he testified matched bullets fired

4

from petitioner’s gun was the same bullet that had been removed from

5

Senator Kennedy’s neck.

6

petitioner has presented affirmatively shows that the bullet was in

7

fact substituted for another, that the bullet identified as consistent

8

with being shot from petitioner’s gun was not the same as the one

9

removed from Senator Kennedy’s neck, or that there actually was an

10

additional bullet.22 Instead, the discrepancies that petitioner points

11

out are equally likely to be the result of innocent mistakes or

12

negligence,

13

governmental officials and agencies.23

rather

than

Petitioner, however, must do more.

a

complex

conspiracy

involving

Nothing

numerous

14

Eyewitnesses who saw a second shooter

15

Petitioner relies on two witnesses, Evan Phillip Freed and Booker

16

Griffin, who said that they saw a second shooter. [See DN 153 at 40].

17
18
19
20
21
22
23

22

As respondent points out, petitioner has been pursuing this
claim since at least 1975. In 1975, petitioner sent a letter to Judge
Wenke (who conducted the 1975 reinvestigation), alleging that the
prosecution substituted false bullets in order to rig the ballistics
evidence at trial. [LD 6, Ex. H (letter from petitioner to Judge
Wenke)]. Despite the fact that petitioner – who has been represented
by counsel – has been pursuing this claim for more than 30 years, he
has been unable to produce any evidence affirmatively proving his
conspiracy allegations.
23

27

Petitioner’s position requires the most sinister and
convoluted reading of every piece of evidence.
For example,
petitioner contends that when Dr. Noguchi asked Robert Joling to hold
onto an exhibit because “we might need it some day,” Noguchi must have
“strongly suspected that a major cover-up was in progress and that its
extent and dimensions were so serious that nothing short of his
removal of a crucial item of evidence for safekeeping would allow the
truth to someday emerge.” [Petition at 36].

28

46

24
25
26

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 47 of 67 Page ID
#:1845

1

According to Freed’s 1992 affidavit (made nearly a quarter of a

2

century after Senator Kennedy’s assassination), Freed arrived in the

3

pantry area five minutes before Senator Kennedy finished his speech.

4

He noticed two men of “very similar” appearance “moving about the

5

pantry area.”

The men “appeared to be looking at each other from

6

time-to-time.”

One of the men was petitioner.

7

from Senator Kennedy when the shooting began.

8

the pantry with petitioner during the speech pointed a gun at an

9

upward angle toward Senator Kennedy.
that

the

first

shot

came

Freed was four feet

The man who had been in

From the sound, it appeared to

10

Freed

from

this

man’s

gun.

In

the

11

background, six or eight feet away, Freed saw petitioner firing a gun

12

in the direction of Senator Kennedy.

13

petitioner, they passed by the second gunman.

14

backed away.

15

him, without a gun.

16

yelling, “stop that guy, stop him.”

The second gunman passed through

17

the door, pursued by the other man.

Freed never saw either man again.

18

Freed told his story to the police, who suggested that he may have

19

misheard the pursuer of the alleged second gunman.

20

131].24

As the crowd rushed toward
The second gunman

Freed then observed the second gunman running toward
Another man ran behind him in the same direction

[Petition at 129-

21
22

24

27

Petitioner has not submitted the actual affidavit, so the
Court’s citation is to petitioner’s quotation of Freed’s affidavit in
petitioner’s federal habeas petition. According to the petition, the
affidavit was submitted to the California Supreme Court as Exhibit 88
to the 1997 habeas petition. [Petition at 131]. Although this Court
requested and received the exhibits attached to petitioner’s 1997
petition [DN 197], Freed’s affidavit is not among the exhibits, nor,
for that matter, are any of the exhibits numbered. For purposes of
analysis, the Court assumes that petitioner’s recitation of Freed’s
declaration is accurate.

28

47

23
24
25
26

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 48 of 67 Page ID
#:1846

1

Next, according to petitioner, Griffin said in a 1987 interview

2

with author Philip Melanson that he was at the Ambassador Hotel on the

3

night of the assassination and he saw petitioner with a taller man and

4

a woman in a polka dot dress. [See DN 153 at 40; Petition at 131].

5

According to Griffin, petitioner shot at Senator Kennedy from a

6

distance of eight or nine feet while the taller man shot Paul Schrade

7

then ran out of the hotel with the woman.

8

the other witnesses testified incorrectly because he was the first

9

person to capture petitioner and he was pulled off petitioner by Rosie

10

Greer and Rafer Johnson. [www.maryferrel.org, Ex. 33 to Request to Los

11

Angeles County Grand Jury (interview of Griffin by Melanson on June 5,

12

1987)].25

13

of almost every other witness who was in the kitchen pantry that

14

night, but it actually inculpates petitioner because Griffin is very

15

certain that petitioner shot Senator Kennedy while the second gunman

16

shot another victim.

17

\\

Griffin also claimed that

Not only is Griffin’s statement at odds with the statements

18

Nina Rhodes-Hughes

19

Petitioner relies on witness Nina Rhodes-Hughes, who also was in

20

the kitchen pantry at the time of the shooting.26 According to Rhodes-

21
25

22
23
24

Again, petitioner has not submitted a declaration from
Griffin. For purposes of analysis, the Court assumes petitioner could
obtain admissible evidence consistent with his recitation of Griffin’s
1987 statements.
26

27

Petitioner originally failed to submit a declaration from
Rhodes-Hughes, but relied upon statements attributed to her in
Melanson’s 1998 book, Shadow Play. [DN 195 at 31]. After the original
report was issued noting this failure, petitioner submitted RhodesHughes’s declaration as an exhibit to his objections. The Court has
discretion, but is not required, to consider the declaration. See

28

48

25
26

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 49 of 67 Page ID
#:1847

1

Hughes, she was six or seven feet behind Senator Kennedy when she

2

heard two or three “popping sounds” originating from her left.

3

[Rhodes-Hughes Declaration at 3]. According to Rhodes-Hughes, Senator

4

Kennedy “did not appear at that moment to have been wounded by those

5

first couple of shots.” [Rhodes-Hughes Declaration at 3].

6

Johnson and Rosie Grier ran to a spot to Rhodes-Hughes’s left where

7

the popping sounds had come from and joined others in an attempt to

8

subdue a dark skinned man with a blue denim jacket.

9

being subdued, Rhodes-Hughes heard gunshots originating from her

10

right, where Senator Kennedy was located. The shots from the right

11

“continued in a more rapid fire and with a different sound,” and

12

Senator Kennedy “had disappeared from [her] view.”

13

Declaration at 4].

14

floor with blood next to his head.

She screamed and then fainted.

15

[Rhodes-Hughes Declaration at 4].

Rhodes-Hughes states that she

16

“counted a total of between 12 and 14 shots fired in the kitchen

Rafer

As the man was

[Rhodes-Hughes

Rhodes-Hughes saw Senator Kennedy lying on the

17

27

Akhtar v. Mesa, 698 F.3d 1202, 1208 (9th Cir. 2012); Brown v. Roe, 279
F.3d 742, 744-745 (9th Cir. 2002); United States v. Howell, 231 F.3d
615, 621 (9th Cir. 2000), cert. denied, 534 U.S. 831 (2001). Arguably,
the circumstances of this case do not warrant consideration of the
belatedly submitted declaration.
In particular, petitioner is
represented by competent counsel and has been since the date he filed
his petition. The petition has been pending for more than 12 years,
during which time the Court has granted numerous extensions of time
and allowed petitioner to submit evidence supporting his claims.
Petitioner knew about Rhodes-Hughes long ago, and has offered no
explanation for his failure to submit a declaration before the report
was issued.
See Howell, 231 F.3d 622-623 (upholding the district
court’s decision not to consider new allegations made for the first
time in objections to a report, noting that Howell, who was
represented by counsel, had the opportunity to provide the specific
facts earlier, but failed to do so, and also noting Howell did not
provide an adequate explanation for his failure). Nevertheless, in
the interest of a thorough analysis and record of petitioner’s claims,
the Court considers the declaration.

28

49

18
19
20
21
22
23
24
25
26

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 50 of 67 Page ID
#:1848

1

pantry from the two different locations.” [Rhodes-Hughes Declaration

2

at 4].

3

1968 F.B.I. interview – in which she is reported to have said that she

4

heard eight shots fired – were inaccurate or falsified.

5

Hughes Declaration at 6-7].

Finally, she says that the statements attributed to her in the

[Rhodes-

6

The passage of nearly a half a century diminishes the reliability

7

of Rhodes-Hughes’s memory, and therefore, of her declaration. This is

8

especially so given that there are no contemporaneous statements by

9

Rhodes-Hughes that corroborate her current recollection of events now

10

45 years in the past.

11

In any event, Rhodes-Hughes’s observations are similar to those

12

previously discussed that suggest a second gunman may have been

13

present.

14

were sufficient to permit a jury to find that there was a second

15

shooter, it is not sufficient to warrant the conclusion that no

16

reasonable jury apprised of the facts on which petitioner relies would

17

have found petitioner guilty of killing Senator Kennedy, either as the

18

principal, a conspirator, or an aider and abettor.27

As discussed in detail below, even if petitioner’s evidence

19

Analysis

20

Considered together, petitioner’s evidence does not approach the

21

showing required by Schlup that he is actually innocent. Petitioner’s

22

evidence raises questions concerning the reliability or consistency of

23
27

27

It bears repeating that almost none of the evidence
petitioner relies upon is “new” – in fact, most of it was known, or
reasonably could have been known, to petitioner at the time of his
trial. In particular, Freed’s statements were known to petitioner in
1992, and Griffin’s were known to petitioner in 1987. The strength of
this evidence is reduced by the lengthy delay in presenting it. See
Perkins, 133 S.Ct. at 1935-1936.

28

50

24
25
26

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 51 of 67 Page ID
#:1849

1

some of the evidence presented at his trial, but unresolved questions

2

do not amount to new and reliable evidence of innocence. At best,

3

petitioner’s evidence suggests one possible alternative scenario, but

4

it does not so undermine the evidence presented at his trial to the

5

degree that a reasonable jury would not convict him.

6

It is noteworthy that petitioner has never denied – and could

7

hardly do so in light of the evidence, including the fact that he was

8

captured in the process of shooting Senator Kennedy – that he went to

9

the Ambassador Hotel with a gun, waited in the pantry, approached

10

Senator

11

Further, none of petitioner’s new evidence discussed above undermines

12

the extensive evidence of premeditation, including, for example,

13

petitioner’s statement in April 1968 to Alvin Clark that he was

14

“planning on shooting” Senator Kennedy [RT 4012-4015], petitioner’s

15

“stalking” of Senator Kennedy by appearing at the Ambassador Hotel on

16

June 2, 1968 [RT 4033-4049], petitioner’s obtaining a gun, purchasing

17

ammunition, and practicing at a target range on the day before the

18

murder [RT 3567-3571, 3591-3600, 3622-3633, 3656-3662, 3667-3676], or

19

petitioner’s possession of newspaper clippings about Senator Kennedy

20

when he was apprehended in the act of shooting him.

21

3526-3531].

22

Kennedy

with

his

gun

drawn,

and

fired

it

eight

times.

[RT 3521-3522,

Furthermore, petitioner himself has denied the plausibility of

23

this second-shooter theory.

24

During a parole hearing, petitioner

stated:

25

If anybody else was involved, wouldn’t I help myself after

26

all these years, by telling authorities who else was in on

27

it?

28

The

second

gun

theory
51

is

interesting

but

it

is

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 52 of 67 Page ID
#:1850

1

implausible since I was not acting in concert with anyone

2

else.

3

next to Kennedy, who might have fired by mistake.

4

for a long time I had encouraged those putting forth the

5

second gun theory.

6

that the fatal bullet had been fired by someone else.

7

is seems quite unlikely and besides, it would not erase what

8

I did.

The only one it could have been was a security guard
Frankly,

I would have liked somehow to find out
But

9

[LD 8 (Bill Farr, After 17 Years, “Ifs” Still Haunt Sirhan: Assassin

10

of Robert F. Kennedy Up for His 7th Parole Hearing, Los Angeles Times,

11

June 24, 1985].28

12

Finally, even if petitioner could prove that a second gunman shot

13

Senator Kennedy, he still would be guilty of murder under California

14

law.

15

testimony

16

Kennedy, the documentary evidence that petitioner planned to shoot

17

Senator Kennedy, the evidence of petitioner preparing to put his plan

18

into action by obtaining a gun and practicing shooting, or any of his

19

admissions to intentionally shooting Senator Kennedy.

Evidence about a second gunman in the pantry does not negate the
of

numerous

eyewitnesses

that

petitioner

shot

Senator

Even if the

20
28

27

The parties have not provided the Court with a transcript from
the 1985 parole hearing. Petitioner, however, has not objected to
consideration of respondent’s lodged document, nor has he disputed the
accuracy of the quote attributed to him. In fact, in a 2010 letter to
his attorney, petitioner admitted making these statements, but
explained that he made them only because “it was literally inculcated
into me that I was the only person who killed Bobby Kennedy. But,
when the LAPD released the files of my case to the State Archives in
1988 (?), and I began to hear from other inmates who watched T.V.
programs, that I could not have committed the crime, and later when
Lynn Mangan began to delve into the records at the Archives in
Sacramento, I began to question my involvement in this horrible
crime.” [DN 135, Ex. 2].

28

52

21
22
23
24
25
26

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 53 of 67 Page ID
#:1851

1

second shooter’s bullet was the one that killed Senator Kennedy,

2

petitioner would be liable as an aider and abettor.

3

Coffman, 34 Cal.4th. 1, 106-107 (2004) (explaining that an aider and

4

abettor is guilty of both the offense he intended to facilitate or

5

encourage and also of any reasonably foreseeable offense committed by

6

the person he aids and abets), cert. denied, 544 U.S. 1063 (2005); see

7

also People v. Sanchez, 26 Cal.4th 834, 845-849 (2001) (explaining

8

that it is proximate causation, not actual causation, together with

9

the

requisite

mental

state

(i.e.,

malice)

that

See People v.

determines

a

10

defendant’s liability for murder, and holding that even where it

11

cannot be determined which of two defendants fired the single fatal

12

bullet, both defendants could be found guilty of first degree murder

13

where each fired at the victim with the requisite intent).

14

The foregoing analysis assumes that petitioner knew about the

15

second shooter, which is both the only logical inference and the only

16

scenario supported by petitioner’s most favorable evidence.

17

the primary witness supporting a second shooter theory, said that he

18

saw two men, one of which was petitioner, who appeared to be together,

19

exchanging glances while they waited in the pantry.

20

130].

21

second shooter, said that he saw petitioner with the second gunman.

22

He also saw petitioner shoot Senator Kennedy. [www.maryferrel.org Ex.

23

33 to Request to Los Angeles County Grand Jury (interview of Griffin

24

by Melanson on June 5, 1987)].

Freed,

[Petition at

Likewise, Griffin, the other eyewitness who allegedly saw a

25

The alternative scenario – that unbeknownst to petitioner, a

26

second unrelated person coincidentally showed up in the kitchen pantry

27

at exactly the same time as petitioner did and proceeded to shoot

28

53

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 54 of 67 Page ID
#:1852

1

Senator

Kennedy

at

close

range

with

the

same

type

of

gun

and

2

ammunition as petitioner was using, but managed to escape the crowded

3

room without notice of almost any of the roomful of witnesses, lacks

4

any evidentiary support.

5

advance such a far-fetched scenario.

6

address it.

Petitioner’s counsel does not expressly
Accordingly, the Court does not

7

Of course, petitioner does contend that he was subjected to

8

“hypnotic programming,” in which case the existence of another unknown

9

shooter might exculpate him.

As discussed below, however, petitioner

10

has not presented sufficient reliable evidence that he acted under the

11

influence of hypnotic programming on the night he shot Senator

12

Kennedy.

13
14

Evidence regarding hypnotic programming29
Petitioner submits the declarations of Dr. Daniel Brown, an

15 associate clinical professor of psychology at Harvard Medical School,
16 and Professor Alan Scheflin, a law professor at Santa Clara University
17 Law School. In his November 17, 2011 declaration, Scheflin states that
18 based upon his research, including review of thousands of declassified
19 Central Intelligence Agency (“CIA”) documents, the “concept of hypnotic
20 programming has been well known for more than a century,” the American
21 military began experimenting with mind control in the 1940s, and it can
22
29

27

While the Court considers this and other new evidence for
purposes of determining whether petitioner has made a sufficient
showing of actual innocence, it notes that consideration of some of
this evidence in the context of a determination of the merits of
petitioner’s claims may be precluded by Cullen v. Pinholster, 131
S.Ct. 1388, 1398, 1400 (2011) (explaining that review under section
2254(d)(1) is limited to the record before the state court that
adjudicated the claim on the merits and federal courts may not
consider evidence introduced for the first time in federal court).

28

54

23
24
25
26

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 55 of 67 Page ID
#:1853
1 be, and has been, used to induce antisocial conduct in humans. [DN 180,
30
2 Ex. G (Declaration of Alan Scheflin) at 2-5].

3 “the

creation

of

an

hypnotically

programed

Scheflin states that
assassin

or

patsy

4 (distractor) is possible only with a very small percentage of people
5 who fall within the category of ‘high hypnotizables.’”

Sirhan Sirhan,

6 based upon Dr. Daniel Brown’s extensive psychological testing and
7 interviews with him, meets the criteria for “an ideal subject for this
8 extreme form of mental manipulation.” [DN 180, Ex. G at 6]. Scheflin
9 provides a lengthy history of the study of the possible uses of
10 hypnosis by the CIA, including projects researching whether a person
11 could be hypnotized by phone, whether a person could be induced to
12 commit murder or suicide, and whether it was possible to create full
13 amnesia for actions taken under hypnosis.

The answer to all of these

14 questions, according to Sheflin, is “yes.” [DN 180, Ex. G at 22-24].
15 In fact, one CIA document from 1954 indicates that the agency was
16 investigating whether an individual could “be induced under [hypnosis]
17 to perform an act, involuntarily, of attempted assassination against
18 a prominent [redacted] politician or if necessary, against an American
19 official.” [DN 180, Ex. G at 24-25]. In conclusion, Scheflin states
20 that “it is possible, with a small select group of individuals, to
21 influence

the

mind

22 permissible limits.”
23

and

behavior

beyond

legally

and

ethically

[DN 180, Ex. G at 30].

In his declaration filed on April 23, 2011, Brown states that in

24
30

27

For example, Scheflin quotes CIA memoranda from the 1950s
indicating that the CIA was interested in “gett[ing] control of an
individual to the point where he will do our bidding against his will
and even against such fundamental laws of nature ... as self
preservation....” [DN 180, Ex. G at 17].

28

55

25
26

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#:1854
1 May 2008, he began a detailed forensic psychological assessment of
2 petitioner at the request of petitioner’s counsel, who asked Brown to
3 render an expert opinion as to whether or not petitioner “was a subject
4 of coercive suggestive influence that rendered his behavior at the time
5 of the assassination of Senator Robert F. Kennedy involuntary and also
6 made him amnesic for his behavior and role in the assassination.”
7 153, Ex. I at 1-2].

[DN

Brown interviewed petitioner and performed

8 numerous forensic psychological tests on him for more than 60 hours
9 over a three year period.

He also reviewed numerous files related to

10 petitioner’s case. [DN 153, Ex. I at 2-3].

Based upon his examination

11 and test results, Brown concluded that petitioner is “the rare type of
12 individual who could have been easily influenced/induced by others to
13 engage in uncharacteristic actions for which he would subsequently
14 become amnesic.” [DN 153, Ex. I at 4].

Brown directly observed

15 petitioner switch into a distinctly different “alter personality” state
16 that responds in a robot-like fashion upon cue and adopts the behavior
17 of firing a gun at a firing range, a personality state Brown refers to
18 as “range mode.”

This personality state occurs only while petitioner

19 is in a hypnotic state and in response to certain cues. Brown opines
20 that this cue-specific “alter personality” state is likely the product
21 of coercive suggestive influence and hypnosis. [DN 153, Ex. I at 4].
22 According to Brown, petitioner’s test results place him in the top 7
23 percent of individuals in hypnotizability. [DN 153, Ex. I at 5-6].
24

In preparing his opinion, Brown gathered numerous “facts” from

25 petitioner

about

26 assassination.

petitioner’s

activities

the

day

of

the

According to petitioner, he did not plan to go to the

27 Ambassador Hotel to kill Senator Kennedy.
28

on

56

Rather, he went to look for

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1 girls, on the suggestion of “some guys” who said there would be a big
2 party there.

Petitioner found the bar at the hotel.

He had an

3 unusual interaction with the bartender who communicated with him by
4 using non-verbal signals.

Petitioner had the feeling that they had a

5 relationship, but could not remember the bartender.

After petitioner

6 drank alcoholic drinks he became very tired and he wanted to go home.
7 He went to his car but realized he was too tired to drive, so he went
8 back to the hotel to find coffee. [DN 153, Ex. I at 8-10].
9

When petitioner returned to the bar, the bartender told him there

10 was no coffee.

An attractive woman with a polka dot dress was at the

11 bar talking to the bartender.

She said she knew where the coffee was.

12 She took petitioner by the hand and led him to the ante-room behind the
13 stage where Senator Kennedy was speaking.

They discovered a large

14 coffee urn and poured coffee from it. They were interrupted by a man
15 in a suit who told them that they could not stay there and instructed
16 the woman in the polka dot dress to go to the kitchen.

Petitioner was

17 attracted to the woman, so he followed her. Petitioner was fascinated
18 with the woman and thinking about seducing her. [DN 153, Ex. I at 1019 11].
20

The woman suddenly looked over petitioner’s head, then tapped or

21 pinched petitioner.
22 like

a

pin

or

It was startling to be pinched, and it felt sharp

fingernail.

The

woman

pointed

and

said

“look.”

23 Petitioner was puzzled about what she meant, then people begin to come
24 through the back doors.
25 shoulder.

The woman put her arm on petitioner’s

Then petitioner had a “flashback” to the shooting range.

26 He did not know that he had a gun.
27 loaded his gun and saw circles.
28

But he saw a target.

Petitioner

He tried to hit the target and fired
57

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 58 of 67 Page ID
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1 one or two shots before snapping out of it and thinking, “I’m not at
2 the range,” and then “what is going on?”

People grabbed petitioner.

3 He did not realize until later that Senator Kennedy had been shot and
4 that he was the shooter. [DN 153, Ex. I at 11-13].
5

Brown gathered facts that petitioner’s family and friends said

6 that petitioner “underwent a fundamental personality change after a
7 fall from a horse while racing at the Corona race track in September
8 25, 1966.”
9 injury.

Petitioner’s medical records, however, showed no brain
After the

fall, petitioner was missing for two weeks.

10 According to Brown, these facts “suggest that the horse fall was drug11 induced and staged, and that Mr. Sirhan was taken to an unidentified
12 hospital unit for two weeks, and whatever was done to him caused a
13 fundamental change in his personality.”

[DN 153, Ex. I at 14-17].

14

In conclusion, Brown states:

15

I am convinced that Mr. Sirhan legitimately recalled a

16

flashback to shoot target circles at a firing range in

17

response to the post-hypnotic touch cue and did not have the

18

knowledge, or intention, to shoot a human being, let alone

19

Senator Kennedy. ... [I]t is my opinion that Mr. Sirhan did

20

not act under his own volition and knowledge or intention at

21

the time of the assignation and is not responsible for

22

actions coerced and/or carried out by others, and further

23

that the system of mind control which was imposed upon him

24

has also made it impossible for him to recall under hypnosis

25

or consciously, many critical details of actions and events

26

leading up to and at the time of the shooting in the panty

27

of the Ambassador Hotel.

28

58

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#:1857
1 [DN 153, Ex. I at 18].
2

In his supplemental declaration, Brown recounted that during

3 hypnosis, petitioner recalled being taken to a police firing range and
4 being shown how to shoot at human targets and vital organs. Petitioner
5 remembered the name of the firing range and described a man with a
6 moustache and a foreign accent who introduced him to the idea of
7 killing government officials.

According to Brown, an entry in police

8 report corroborates that not only did such a police firing range exist,
9 but that petitioner visited that police firing range and signed the
10 register days before the assassination.

He was accompanied by a man

11 with a turned down moustache and a foreign accent who refused to
12 identify himself or sign the register. [DN 180, Ex. H at 4-5].
13

Brown explains that on the night of the assassination, all that

14 was required was for petitioner to show up at a designated place
15 induced by post-hypnotic suggestion, to be led to the site by a
16 handler, and then to adopt “range mode” upon cue.

Brown states that

17 such behavior is not difficult to induce in an individual who, like
18 petitioner, is extremely vulnerable to hypnotic suggestion.
19 time

of

the

assassination,

petitioner

thought

20 stationary circle targets at a firing range.

he

was

At the

firing

at

He did not know that he

21 was firing at Senator Kennedy. [DN 180, Ex. H at 14-15].
22
23 to

As further support for his theory that petitioner was programmed
assassinate

Senator

Kennedy,

and

therefore

is

not

legally

24 responsible for his acts, Brown notes that:
25

It is relevant that Petitioner was missing for two weeks

26

after

27

according

28

falling
to

from
his

a

horse

family

and
59

and

came

friends.

back
He

“different”
remembers

a

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 60 of 67 Page ID
#:1858

1

“prison-like” hospital unit where he drifted in and out of

2

consciousness, likely under the influence of hallucinogenic

3

or psychiatric drugs and hypnotic suggestions.

4 [DN 180, Ex. H at 20-21].

Brown also identifies “new evidence”

5 supporting his theory, including:
6

strong scientific data for a range of the Petitioner’s

7

personality factors highly predictive of vulnerability to

8

coercive persuasion; a memory of shooting upon cue; evidence

9

of being missing for two weeks immediately after his horse

10

injury during which he recalled a prison-like hospital unit;

11

a memory of meeting a strange man with a foreign accent and

12

turned down moustache who first introduced the idea that

13

government officials needed to be killed; a memory of that

14

same strange man sharing a mutual interest in short wave

15

radios with the Petitioner (the Petitioner’s passionate

16

hobby as a short wave radio operator was never explored at

17

trial); a memory of learning to shoot at vital organs and

18

human targets with a “range master” at Corona Police Firing

19

Range; corroboration that the Corona Police Firing Range

20

actually existed and that petitioner signed in the Saturday

21

before the assassination to practice at the Corona range

22

days before the assassination accompanied by a man fitting

23

the description of the strange man with the turned down

24

moustache and foreign accent, who refused to sign in; and a

25

memory that Petitioner often wrote in his spiral notebooks

26

at night in an hypnotic state, while communicating with

27

other parties on his short-wave radio.

28

60

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 61 of 67 Page ID
#:1859
1 [DN 180, Ex. H at 22-23].
2

Finally, Brown opines that petitioner’s admissions, including his

3 admission at trial, “exemplify a specific form of false confession,”
4 namely an involuntary internalized false confession.

[DN 180, Ex. H

5 at 23-24].
6

Brown agrees that most individuals cannot be induced to commit

7 wrongful acts with hypnosis.
8 within

the

small

4

or

5

In his opinion, however, petitioner is

percent

of

individuals

who

are

highly

9 hypnotizable and socially compliant, with a high dissociative coping
10 style, all which “predict strong vulnerability to undue suggestive
11 influence or coercive persuasion, hypnotic and non-hypnotic.” [DN 180,
12 Ex. H at 13].
13

Brown notes that Dr. Simson-Kallas at San Quentin was asked to

14 interview petitioner by the supervising psychiatrist because the
15 supervising psychiatrist did not find any evidence to support the
16 defense and prosecution experts’ opinions that petitioner suffered from
17 paranoid schizophrenia.
18 evidence

for

19 “programmed.”

Dr. Simson-Kallas concluded that there was no

schizophrenia

and

that

petitioner

might

have

been

He was then taken off the case before he was able to

20 further evaluate the question of hypnotic programming. [DN 180, Ex. H
21 at 5-6].
22

On the other hand, respondent cites evidence suggesting that many

23 or most scientists agree that hypnotized persons retain ultimate
24 control

over

their

actions

and

cannot

be

programmed

to

commit

25 antisocial acts against their will. [DN 174 (Respondent’s Supplemental
26 Brief on Actual Innocence) at 12-13].

Brown himself concedes that

27 there are two schools of thought regarding hypnosis and that experts
28

61

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 62 of 67 Page ID
#:1860
1 disagree on the very concept of what hypnosis is and what is able to
31
2 achieve. [DN 180, Ex. H at 8-9].

3

As respondent points out, the Ninth Circuit has said that, “it is

4 clear that the mere presentation of new psychological evaluations ...
5 does not constitute a colorable showing of actual innocence.”

Griffin

6 v. Johnson, 350 F.3d 956, 965 (9th Cir. 2003)(quoting Harris v.
7 Vasquez, 949 F.2d 1497, 1516 (9th Cir. 1990), cert. denied, 541 U.S.
8 998 (2004).

As the court explained:

9

“Because psychiatrists [let alone psychologists] disagree

10

widely and frequently on what constitutes mental illness,”

11

we have observed that evaluations such as Dr. Stanulis's

12

merit little weight on habeas review because “a defendant

13

could ... always provide a showing of factual innocence by

14

hiring psychiatric experts who would reach a favorable

15

conclusion.”

16 Griffin, 350 F.3d at 965 (quoting Harris, 949 F.2d at 1515).

The

17 evidence of hypnosis relied upon by petitioner, including the opinions
18 of Brown, is the type of evidence the Ninth Circuit has held are
19 insufficient to make a colorable showing of actual innocence.
20

Even considering all of petitioner’s new psychological evidence,

21 he still fails to make the requisite showing. Petitioner’s theory that
22 he was subject to mind control may be intriguing, but in order to meet
23
31

27

According to Brown, the two schools of thought “mainly
disagree about whether or not hypnosis plays a special role in
behavioral control....” He explains that in all laboratory research
studies, “it was relatively easy to produce antisocial behaviors, with
and without hypnosis. The only disagreement between socio-cognitive
and state theorists is whether hypnosis contributes anything special
to this end.” [LD 180, Ex. H at 8-9].

28

62

24
25
26

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 63 of 67 Page ID
#:1861
1 the Schlup test, petitioner must establish that in light of this
2 evidence, it is more likely than not that no reasonable juror would
3 have found him guilty beyond a reasonable doubt.
4 statements
5 opinions

about

that

the

feasability

petitioner

was

a

of

The experts’

hypno-programming

good

candidate

for

and

their

psychological

6 manipulation may be sufficient to suggest that petitioner’s mind7 control

theory

is

not

impossible,

but

they

fall

far

short

of

32
8 demonstrating that petitioner actually was subjected to mind control.

9

Furthermore, petitioner’s own recitation of the events leading up

10 to the murder are vague and fail to demonstrate that he actually was
11 the victim of hypno-programming by some unnamed person or entity.
12 Petitioner’s recently recalled memories about the bartender, the woman
13 in the polka dot dress pinching him, and entering “range mode,” are far
14 from compelling evidence of his innocence.

Petitioner’s recitation of

15 the events of the night he shot Senator Kennedy amount to self-serving
16 recollections that, even if believed, do no more than suggest a
17 sinister

plot

and

a

possibly

exculpatory

theory

–

namely,

that

18 petitioner was under a hypnotic trance and did not intentionally shoot
19 Senator Kennedy.

Whether or not the theory that a person can be

20 hypnotized to commit murder and then to lose his memory of committing
21 that murder is scientifically credible, and the Court assumes that it
22 is solely for purposes of this analysis, petitioner has not provided
23 any reliable evidence that this actually occurred.

Evidence of a

24
32

27

In the social security context, the Ninth Circuit has held
that the opinion of a treating psychiatrist whose examination postdated the alleged date of disability may be disregarded because
“[a]fter-the-fact psychiatric diagnoses are notoriously unreliable."
Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984).

28

63

25
26

Case 2:00-cv-05686-BRO-AJW Document 216 Filed 08/26/13 Page 64 of 67 Page ID
#:1862
1 mysterious woman in a polka dot dress, petitioner’s “feeling” that he
2 might have had a relationship with the bartender who used non-verbal
3 signals such as nodding his head and making eye contact, petitioner’s
4 feeling “tired” after drinking alcohol, his following a woman whom he
33
5 found attractive into the pantry, the “pinch,” and his subsequent

6 drawing out the gun and shooting during his “flashback” to the shooting
34
Then again,
7 range are “facts” that could fit the mind control theory.

8 they are fuzzy recollections of portions of a night more than forty
9 years ago that contradict petitioner’s prior, more contemporaneous
35
10 statements.

11

Moreover, the opinions of Brown and Scheflin are inconsistent

12 with, and substantially contradicted by, the various psychiatrists who
13 examined petitioner forty years earlier, contemporaneously with the
14
33

15
16
17
18

Among
other
things, most of these occurrences are
commonplace and typically do not suggest anything out of the ordinary.
34

Petitioner’s own story is internally inconsistent. If
petitioner was the subject of a sophisticated hypno-programming
effort, it makes no sense that the only reason he ended up at the
Ambassador Hotel was the chance suggestion by “some guys” who wanted
to party and meet girls. [See DN 153, Ex. I at 8].

19
35

27

Some
of
the contradictory statements are found in
petitioner’s handwritten notes provided to defense investigator
Michael McGowan, in which petitioner provides great detail about his
actions at the Ambassador Hotel prior to the shooting. These notes,
filed under seal, contain a detailed account of petitioner’s conduct
that is not consistent with the account petitioner recently “recalled”
during his interviews with Brown. [DNs 189-194 Declaration of Michael
McGowan, Exs. D, E, F, G; LD 25 (letter between petitioner’s
investigator Michael McGowan and Dan Moldea dated February 25, 1995
indicating that petitioner recalled meeting Senator Kennedy’s eyes
just before shooting him, and when McGowan asked petitioner why he
didn’t shoot him between the eyes, petitioner answered, “Because that
son of a bitch turned his head at the last second.”]. Petitioner’s
inconsistent versions of events undermine the reliability of Brown’s
conclusions.

28

64

20
21
22
23
24
25
26

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#:1863
1 crime. Unlike the psychological experts who testified at petitioner’s
2 trial, Brown and Scheflin were unable to personally observe and examine
3 petitioner in 1968 to render opinions about his then-current mental
4 state.

Thus, Brown’s retrospective opinion based upon tests assessing

5 petitioner’s mental condition forty years after the fact are of
6 negligible weight.
Based upon the evidence presented, and contrary to petitioner’s

7

8 argument, it is not likely that jurors would believe a defense that he
9 was an involuntary actor who shot Senator Kennedy as a result of
10 sophisticated hypno-programming and memory implantation techniques that
11 rendered him unable to consciously control his thoughts and actions.
12 Petitioner has presented a diverting – albeit farfetched – theory. But
13 it is no more than that.
In sum, petitioner has presented evidence that arguably casts some

14

15 doubt on the details or the reliability of some of the inculpatory
16 evidence presented at trial (such as the ballistic evidence), evidence
17 suggesting

the

possibility

that

another

shooter

could

have

been

36
18 involved, and evidence that a scenario under which petitioner acted

19 under the influence of a form of mind control is, in the view of some,
20 theoretically possible. Under Schlup, the Court must “assess how
21 reasonable jurors would react to the overall, newly supplemented
22 record,” including all the evidence petitioner has submitted in this
23 proceeding.
24 old

and

House, 547 U.S. at 538.
new,

incriminatory

and

Considering all of the evidence,
exculpatory,

admissible

and

25
36

27

Since the fatal shot was at point-blank range, it seems
highly unlikely that the unknown second shooter could have approached
Senator Kennedy that closely, shot him, and then escaped a crowded
room essentially unnoticed.

28

65

26

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#:1864
1 inadmissible, the Court cannot say that it is more likely than not that
2 no

reasonable

juror

would

have

found

petitioner

guilty

3 assassination of Senator Kennedy beyond a reasonable doubt.

of

the

See Lee,

4 653 F.3d at 943-945 (finding that the petitioner failed to satisfy the
5 actual innocence exception where he presented (a) an expert opinion
6 that the child victim’s statements were not reliable; (b) a police
7 report showing that the boyfriend of the victim’s babysitter had
8 molested the victim; and (c) evidence that the victim's babysitter
9 initially denied that the petitioner was present when she left the
10 victim at her apartment); Beaty v. Schriro, 554 F.3d 780, 784 (9th
11 Cir.) (noting that “mere speculation about a possible suspect is not
12 enough”), cert. denied, 491 U.S. 910 (2009); Griffin, 350 F.3d at 96313 965 (finding that the petitioner failed to make an adequate showing of
14 actual innocence based on newly presented psychiatric hospital records
15 indicating that the petitioner suffered from a kind of brain damage
16 with a history of aggressive behavior because the evidence would not
17 lead a reasonable juror to conclude that the petitioner could not have
18 formed the criminal intent necessary to commit murder over twenty years
19 later).
Conclusion

20
21

For the foregoing reasons, it is recommended that respondent’s

22 motion to dismiss the petition be granted.
23
24 Dated: August 26, 2013
25

______________________________
Andrew J. Wistrich
United States Magistrate Judge

26
27
28

66

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#:1865

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

10
11
12 SIRHAN BISHARA SIRHAN,
Petitioner,

13
14

v.

15 P.D. BRAZELTON, Warden,
16

Respondent.

)
)
)
)
)
)
)
)
)
)

Case No. CV 00-5686-BRO(AJW)

[PROPOSED]
JUDGMENT

17
18

It is hereby adjudged that the petition for a writ of habeas

19 corpus is dismissed as untimely.
20
21 Dated: ______________
22
23
24
25
26
27
28

____________________________
Beverly Reid O’Connell
United States District Judge