by Lisa Pease
While Judges Alarcon and Richard Schauer had presided over pre-trial hearings, in October 1968, responsibility for the case transferred to Judge Herbert V. Walker, a former Chief Deputy District Attorney for Los Angeles. A white-haired near-septuagenarian, Judge Walker was known for his big bushy eyebrows as much as for his position. Sirhan’s lawyers had approached Judge Walker several times about pleading Sirhan guilty. Then, just days before his trial was to begin, something shocking happened. While Pollack would not state his conclusions to the defense team, he apparently convinced the prosecution their case would be best served by allowing Sirhan to plead guilty.
On the morning of February 10, 1969, District Attorney Evelle Younger told the Judge:
I understand that the defendant is prepared to plead guilty and accept a life sentence … We favor it, Judge, and the law requires your approval. … [And] now that we have gotten our psychiatrist’s report, a man whom we have great confidence in, we are in a position where we can’t conscientiously urge the death penalty, number one. Number two, we don’t think under any circumstances we would get the death penalty even if we urged it and number three, we don’t think we can justify the trial under those circumstances.
It appears that the result is a foregone conclusion. Our psychiatrist, in effect, says that the defendant is psychotic and his report would support the position of the defense because of diminished capacity and the death penalty wouldn’t be imposed. … Are we justified in going through the motions of a trial, a very traumatic and expensive trial, when we say we can’t conscientiously ask for the death penalty anyway? We don’t think we are.228
The jury would never hear those words. They’d hear something quite different.
Cooper told the Judge he’d be willing to plead to first degree murder to avoid the death penalty. In other words, Cooper was willing to concede completely the culpability of his client leaving him no option for appeal, on the premise that he was saving his client’s life.
In a less political case, the Judge would likely have accepted such an offer. But in this case, Judge Walker said:
Gentlemen, I have a great deal of respect for all of you, as you know … but the ramifications of this thing, I think, should be thoroughly given to the public. I appreciate the cost. I appreciate the sensation, but I am sure it would just be opening us up to a lot of criticism by the people who think the jury should determine this question.
We have a jury and whatever expense is incurred from here on out would only be negligible with what I think would be incurred if we did otherwise. Obviously, in open court, if there was a plea of murder, then you could have a trial to determine the degree and the penalty, that would be all right [sic] with me. …
I don’t let the public influence me, but … there are a lot of ramifications and they continually point to the Oswald matter and they just wonder what is going on because the fellow wasn’t tried.
The “Oswald matter” referred to the fact that Lee Harvey Oswald was killed by Jack Ruby while in the custody of the police before he could be brought to trial, a move many—even at that early point—read as a sign of a conspiracy working to silence Oswald. The irony of putting a man not in control of his mental faculties into a trial situation that could result in his death, thereby silencing him, too, apparently never crossed Judge Walker’s mind.
Cooper offered, “If we had first degree, we could put on a very skeleton outline of the case at the time of plea instead of submitting reports, and we could put witnesses on to testify.”
“Well, then they would say that it was all fixed, it was greased, so we will just go through with the trial,” Judge Walker replied.
John Howard suggested the record of this conversation be sealed.
“It should be sealed, don’t you think?” the Judge asked Cooper.
“Yes, by all means,” Cooper responded.
But Younger argued this point. “I don’t think your Honor is right. I don’t want to argue with you publicly or privately, but I am inclined to think our position should be made a matter of record.” The Judge had no objection.
Younger still wanted to agree regarding the penalty. “I do think the one thing we could do would be the penalty, because we are burdened with it from our psychiatrists.”
“I am not concerned about your organization,” the Judge responded. “I say if they come out with second degree, that is it, and that is what the jury does. I don’t think psychiatrists should determine the outcome of a lawsuit.”
“Well, they have been for years,” Younger said.
“I am not going to argue it any further, gentlemen. My mind is made up.”
Both the prosecution and defense agreed that Sirhan should not be given the death penalty. Both feared if the case went to a jury, that’s what would happen. Judge Walker feared that by not putting the case to trial, the public would suspect a cover-up. But by putting a defendant up for a penalty both sides agreed would be both unfair and likely, hadn’t the Judge essentially guaranteed that which he most feared?
In summary, the LAPD and FBI came up with an extraordinary amount of evidence of conspiracy, much of which will be discussed in later chapters. But both the LAPD and FBI, for reasons that could have been as simple as wanting to wrap this up quickly, either ignored this evidence or tried to cover it up.
But Deputy District Attorney John Howard had heard direct evidence of conspiracy, as you learned, when he listened to both Serrano and DiPierro discuss separately, and within minutes of each other, a suspicious girl in a polka dot dress in the company of Sirhan.
Members of the defense team, too, had voiced concerns about evidence indicating a conspiracy, but since they couldn’t imagine a conspiracy in which their client could be innocent, they, too, ignored that evidence.
Fearing the public would cry “cover-up” if no trial were held, Judge Walker overrode the joint agreement of both the prosecution and defense and possibly guaranteed what could have been the most permanent cover-up of all: the death of Sirhan Sirhan.
What happened next was not a trial to determine the truth of what happened in the pantry but a “show trial” staged for the purpose of putting evidence of Sirhan’s culpability into the record, attempting to dismiss any evidence of conspiracy that had already been made public, and providing an appropriate punishment.
Had Sirhan had a defense team brave enough to follow the evidence wherever it led, the trial that followed would have unfolded quite differently.
164 Houghton, p. 87.
165 Two people sharing the alias James Earl Ray was using appear to have been arrested under the same alias that day. I recounted this bizarre episode in The Assassinations.
In 1997, Dexter King, one of Martin Luther King, Jr.’s sons, met with James Earl Ray and asked him, “Did you kill my father?” Ray said he didn’t, and Dexter King replied that he and his family believed Ray on this point.
In 1999, the King family brought a civil suit against Loyd Jowers, who claimed he had been involved in a conspiracy to kill Martin Luther King. The jury found that a conspiracy that involved government people, not James Earl Ray, had killed King.
166 See the chapter “The Hidden Record” in Bill Davy, Let Justice Be Done. Garrison believed but could not prove that Clay Shaw was a CIA asset. Years later, released CIA files showed the CIA granted a “Covert Security Approval” for the use of Clay Shaw under project QK/Enchant, a project which has not, as of the time of this writing, been declassified. Shaw was also briefed by the CIA both before and after trips to Latin America. See Davy’s full book for an excellent exploration of the evidence suggesting Clay Shaw did play a role in the president’s assassination. There is a great deal of evidence that Shaw knew Oswald and had helped set up the assassination of President Kennedy, much of which came out during his trial, but some of which was stolen from District Attorney Garrison’s office. For another excellent account of the Garrison investigation, see Jim DiEugenio, Destiny Betrayed.
167 Letter from a person
whose name was redacted by the FBI to the FBI HQ office in Los Angeles, dated 6/13/68. FBI RFK-LA-56-156 VOL.04-SER.751-0950.
168 Gladwin Hill, “Woman is sought in Kennedy death,” The New York Times, June 7, 1968.
169 Houghton, pp. 93–94. It’s worth nothing that neither the tape nor the transcript of this meeting, which Houghton’s co-author, Joseph DiMona, evidently had access to, have surfaced in the records made public on this case. That said, I have no reason to believe any of these quotes are fabricated or inaccurate, and the records DiMona quoted that I could verify matched the record. Clearly, some records were lost or destroyed.
170 Houghton, p. 94.
171 Houghton, p. 97. Although Houghton’s co-author was provided access to the transcript of this conversation, the public has never seen this document, or many of the documents referenced in Houghton’s book. I have no reason to doubt the authenticity of the documents, although I question how fully they have been represented. Houghton’s privileged access was a key point in a lawsuit that forced the opening of many, but not all, of the files on this case to the public.
172 In re Kirschke 53 Cal. App. 3d 405, law.justia.com/cases/california/calapp3d/53/405.html, accessed 9/1/13.
173 I can only go by what DiMona quoted from the tapes or transcripts which he had, which do not appear to have been made available to the public, if they even still exist. Like several other critical records, these seem to have disappeared without a trace. If Miner did raise this point, DiMona or Houghton did not include it in the excerpts quoted in Special Unit Senator.
174 Robert Blair Kaiser, via email.
175 FBI memo from (FBI Lab employee Roy) H. Jevons to (FBI Lab head Ivan) Conrad, December 2, 1963, www.maryferrell.org/mffweb/archive/viewer/showDoc.do?mode=searchResult&absPageId=692546.
176 CIA dispatch dated 1/4/67, NARA Record Number: 104-10404-10376, www.maryferrell.org/mffweb/archive/viewer/showDoc.do?docId=3167&relPageId=1.
177 Houghton, pp. 97–98.
178 Pasadena Police report on Evans, Elizabeth Y., bearing the correct (at that point in time) chart of PC 217, Attempt [sic] Murder, June 5, 1968.
179 LAPD interview of Dr. John T. Garner, 7/31/68.
180 FBI interview with [redacted] of the LAPD Detective Division, conducted by [redacted] at the LAFO on 6/8/68. FBI files, Sub-file X-1, Vol. 4, p. 1082.
181 Houghton, p. 103.
182 Houghton, p. 103.
183 Warren Commission Hearings, Vol. XXII, p. 528.
184 San Fernando Valley Times, 11/13/67, quoted in Turner and Christian, p. 64.
185 Turner and Christian, p. 65.
186 O’Sullivan, p. 406.
187 John M. Crewdson, “Hunt Says CIA Had Assassin Unit,” New York Times, December 26, 1975.
188 Turner and Christian, p. 66. Fernando Faura clarified in an email to Lisa Pease on 4/9/16 that he had not seen Pena at the LAPD in “April,” as the Turner book states, but only when he was turning the Fahey tapes over to the LAPD. Faura allowed that perhaps Turner or Christian had found evidence that Pena had returned in April, but as of 4/9/16, both had passed away so I was unable to question them on this point.
189 See additional details in Lisa Pease, “Sirhan and the RFK Assassination Part II: Rubik’s Cube,” in DiEugenio and Pease, The Assassinations, p. 572. See also Ralph Schoenman, “RFK’s assassination: The beat goes on,” The Baltimore Sun, 5/28/95 and Turner and Christian, p. 66: In 1963, Hernandez “played a key role in Unified Police Command training for the CIA in Latin America” and received a medal from the Venezuelan government.
This CIA document, describes the problems in Venezuela, the likely formation of a unified police command, and the need for training, which, as of mid-1963, had been inadequate: www.foia.cia.gov/sites/default/files/document_conversions/89801/DOC_0000261026.pdf. The new training referenced, conducted by the CIA, may well have been the very training Hernandez was involved with.
190 LAPD’s transcript of Vince DiPierro’s July 1, 1968 session with Hernandez.
191 Melanson, p. 241.
192 Brad Johnson, a former CNN producer who has aggressively sought copies of all video in this case, was unaware of this video when I contacted him about it, and he initially doubted it had been made. Shane O’Sullivan, whom I also contacted, expressed the same doubt. However, the documentation clearly states a video was made. It appears this video has been lost, hidden, or destroyed, begging the question of why it was destroyed. Was Serrano too credible?
193 LAPD interview of John Ambrose, June 10, 1968, www.maryferrell.org/showDoc.html?docId=99848&#relPageId=391&tab=page.
194 FBI interview of David Kal Haines, 6/11/68.
195 SUS Daily Log of Commander, Detective Bureau in Investigation of Robert F. Kennedy assassination, Commander Houghton, June 11, 1968 entry.
196 Larry DuBois and Laurence Gonzales, “The Puppet and the Puppetmasters,” Playboy, September 1976.
197 President Ford was himself the instigator for the three investigations of the CIA due to a clumsy comment he made at a luncheon with reporters. When challenged regarding his appointments to the Rockefeller Commission, Ford said he needed people who could be trusted, lest the commission dig up some of the darker operations of the CIA, like “assassinations.” He tried to censor himself, after the fact, by adding “That’s off the record,” but it was too late. The media ran with it, and the Senate and Congress, fearing Ford’s Rockefeller Commission would be little more than a whitewash, created select committees to investigate the CIA, which became known, respectively, as the “Church Committee” and “Pike Committee” after their leaders Senator Frank Church and Congressman Otis Pike. See Daniel Schorr’s account of this in his book Clearing the Air.
198 Daily Log of Commander, Detective Bureau in Investigation of RFK Assassination, SUS files.
199 Daily Log of Commander, Detective Bureau in Investigation of RFK Assassination, SUS files.
200 John Newman, Oswald and the CIA, p. 253.
201 SUS files. Each of the SUS staff had a bio on file within the LAPD. See my article “Sirhan and the RFK Assassination Part II: Rubik’s Cube,” in DiEugenio and Pease, The Assassinations, p. 571, for a quick summary of some of these. See the SUS officer files for their backgrounds.
202 FBI memo from SAC, Los Angeles to [redacted], dated 6/13/68.
203 Houghton, p. 120.
204 Ralph Schoenman, “RFK’s assassination: The beat goes on,” The Baltimore Sun, 5/28/95 and Turner and Christian, p. 66: In 1963, Hernandez “played a key role in Unified Police Command training for the CIA in Latin America” and received a medal from the Venezuelan government.
205 LAPD interview record of Kathy Lentine, date unreadable due to the poor quality of the photocopy.
206 LAPD interview of Jeanette Prudhomme, 6/5/68 and 8/8/68.
207 In her LAPD interview summary of 8/6/68, Irene Gizzi reportedly said the dress was white with “unknown color” polka dots. But in her original interview of 6/6/68, Gizzi said the girl was wearing a “white dress with black polk-a-dot.”
208 Van Nuys and LAPD interviews of Katherine Keir, 6/5/68 and 8/7/68, respectively.
209 Kaiser, p. 155.
210 Author’s phone interview with Paul Sharaga in 2005.
211 The portion of the tape I played for DiPierro does not appear to have been transcribed. The transcript from that same date picks up after the pressure had been brought to bear on DiPierro. In-person interview with DiPierro on 5/6/06. Other comments in this section come from phone interviews with DiPierro prior to our meeting. He would not let me tape our meeting.
212 LAPD report from Sgt. M.J. McGann and Officers J. Mount and C.B. Thompson to Lt. Pena, July 5, 1968, page 6.
213 LAPD transcript of polygraph session of James Thornbrugh by Lt. Enrique Hernandez, July 18, 1968.
214 Some researchers have mistakenly suggested that, because Pena’s handwritten notes are scrawled on some interview summaries dated June 6 and 7, that Pena’s involvement in the case was nea
rly immediate. But Pena’s comments were clearly added after Hernandez had obtained Serrano’s “confession,” because his handwritten comments use Serrano’s statement as a justification to close those files.
215 Interview of Nina Rhodes-Hughes, 5/24/2012.
216 FBI Memo from Nolan to SAC 56-156, 6/6/68.
217 I had a chance to see this up close as a juror on a conspiracy trial in Los Angeles. I was amazed to see how much more clearly the public defender presented her case than the Deputy D.A. presented hers. The public defenders on that case and another I sat for were so sharp that I asked a clerk of the court if these were the exception, or if all public defenders were that good. The clerk told me that the public defenders in Los Angeles were, on the whole, exceptional.
218 Klaber and Melanson, p. 26.
219 John C. Stevens, Court Martial at Parris Island: The Ribbon Creek Incident, (University of South Carolina Press, 2007), p. 68.
220 One of several such mentions of McCowan’s offers to help the LAPD can be found in the Daily Summary of Activities report entry for November 1, 1968, written by Lt. Keene: “McCowan was in, saw Hernandez. Michael professed cooperation and indicated he’d obtain needed background information from family. He wants photos or maps showing kitchen and location of witnesses.” Three days later, on November 4, Captain Brown’s entry in the Daily Summary noted, “Made decision to decline McCowan’s offer of help in obtaining miscellaneous information from family, information is not worth what he would want in exchange. It also raises the specter of ‘dealing with the enemy,’ which could embarrass the investigation at a later date.” Despite this, another three days later, on November 7, McCowan called the LAPD to give them a heads-up that the FBI was about to interview Sirhan’s family. McCowan also met with Hernandez on November 7, as Keene reported November 12 in the Daily Summary, and fed Hernandez derogatory information on Sirhan’s brothers.
