by Lisa Pease
While the leak was cause for concern, it was not the most important issue to be discussed in this meeting. “May we raise a couple of other problems about the progress of the case as we now envision it?” Fitts asked. “I think a couple of these things can be discussed at this time, so we will have some ground rules in mind, so we won’t suffer any unnecessary embarrassment in court.”
Fitts mentioned “Larry Sloan, our handwriting expert,” and problems with “some of the signatures or the writing which may or may not be in question in this case…with respect to the whole question of the admissibility and the relevance of some of that handwriting—I am referring specifically now to the notebooks ….”257
The admissibility was an obvious issue. The notebooks had been retrieved from Sirhan’s bedroom without his or his mother’s permission. The defense argued that Sirhan’s brother Adel did not have the requisite legal standing to allow the search. But more important was Fitts’ statement that some of the writing might have been “in question.” If there were a question whether Sirhan actually wrote all of the text in the notebooks, that would indeed affect the notebooks’ “relevance.”
And in fact, there was a question. In Lieutenant Pena’s “Progress Report” dated July 3, 1968, nearly a month after the crime, Pena reported, “To date the suspect has not been made on handwriting. The written material obtained at suspect’s home was forwarded to the FBI in Washington DC, but they were unable to make a determination on the specimens submitted.” In other words, neither the LAPD’s nor FBI’s handwriting experts could prove Sirhan had written all the material in his notebooks based on the other documents they had collected of Sirhan’s handwriting.
Cooper, predictably, let that issue drop. But that statement, coupled with what came next, should have given him grave pause.
“It is our intention now,” Fitts told the group, “to call DeWayne Wolfer to testify with respect to his ballistics comparison.” Then Fitts added something stunning: “Some of the objects or exhibits that he will need illustrative of his testimony will not, because he is being taken somewhat out of order for reasons that we will come to later, will not have adequate foundation, as I will concede at this time.”
Some of the objects or exhibits will not have adequate foundation, as I will concede.
“You mean the surgeon took it from the body and this sort of thing?” Cooper asked.
“Well, with respect to the bullets or bullet fragments that came from the alleged victims, it is our understanding that there will be a stipulation that these objects came from the persons whom I say they came from. Is that right?”
“So long as you make that avowal, there will be no question about that,” Cooper replied.
If that was all there was to it, Fitts would have stopped there. But he felt compelled to add one more thing, for a very serious reason.
“We have discussed the matter with Mr. Wolfer as to those envelopes containing those bullets or bullet fragments; he knows where they came from; the envelopes will be marked with the names of the victims and I will pick those up in order and ask for a stipulation that this is the bullet or bullet fragment from, let us say, Elizabeth Evans.”
What Fitts was saying, had Cooper been paying close attention, is that the bullets were currently in unmarked envelopes, and that Wolfer would say which envelopes contained which bullets, and then the envelopes would be marked accordingly. This is far from standard procedure. Bullets and other evidence are supposed to be marked and sealed immediately upon receipt to prevent evidence tampering. Instead, this gave the impression it was the D.A.’s office or Wolfer that was doing the tampering.
To make matters worse, Cooper had been specifically warned that Wolfer had a credibility issue.258 Shortly before the trial began, William Harper, a well-respected criminalist from Pasadena, contacted Cooper to warn him about Wolfer. Harper had examined the evidence in the Kirschke case and found Wolfer’s testimony deceptive, an opinion with which, as we’ve already seen, the California Court of Appeals concurred.259
Harper had told Cooper to challenge all evidence from Wolfer because he was simply not to be trusted on those matters. “He gives them what they want,” Harper told Cooper, meaning, Wolfer’s concern for the truth was not as great as his concern for serving the LAPD’s top ranks. “Wolfer is not competent,” Harper had said. “He will do what’s expected of him.”260
If you were charged with a crime, would you appreciate your attorney simply stipulating to evidence the prosecution admitted might be somewhat problematic? Especially after your attorney had been warned by a credible source not to trust the person presenting the unsupported evidence? Wouldn’t you want your attorney to instead challenge that evidence and possibly get you off on a technicality (if you were guilty) or to demonstrate to the jury there had been evidence manipulation (if you were innocent)? Instead, Cooper stipulated to everything Fitts asked for. The incriminating handwriting in the notebook may not have been Sirhan’s, said the prosecution. The bullets were without adequate foundation and may have been substituted. But Cooper stipulated to it all.
Some authors have argued that Cooper served his client faithfully. It’s possible that was Cooper’s sincere intention. But one would be hard pressed to defend Cooper’s choices at this unusual and important meeting.
On the afternoon of Monday, February 24, 1968, Wolfer took the stand. Asked if he were a sergeant, Wolfer said “No, just a police officer.” Before Fitts asked Wolfer any questions, Fitts entered into evidence an evidence envelope containing an expended bullet, marked People’s 47. Fitts asked Cooper to stipulate that “this expended bullet was removed from the vicinity of the sixth cervical vertebra of Senator Robert F. Kennedy at the time of the autopsy which was performed upon him.” The prosecution had presented a number of witnesses to establish the chain of possession of Sirhan’s gun. But for a bullet retrieved from Kennedy, no witnesses were called.
At the Grand Jury hearing, the bullet had been handed to Noguchi for inspection, and he said his marks were on the bullet. Why was that not done here? Couple this with the discussion in Judge Walker’s chambers about not being able to prove the bullets came from the people claimed, there’s a strong likelihood—which will be added to in the next chapter—that the bullet presented in court was not, in fact, the bullet retrieved from Kennedy.
The bullet envelope, whatever it contained, was entered into evidence as People’s 47. Table 1 shows the reference number for bullets and fragments entered into evidence during Wolfer’s testimony. Cooper stipulated to all of them.
Had Cooper or anyone on the defense team paid close attention to the FBI’s information, the “bullet fragments” from Elizabeth Evans’ head should have been contested. In the previous chapter, we saw that the FBI had reported that the Evans bullet “cannot be entered into evidence as continuity of the bullet has been lost.” Sirhan’s attorneys had every right to challenge the admissibility of this evidence, but they did not.
Fitts told the jury these stipulations would save “even more” than “a couple days’ testimony” from witnesses to establish the chain of possession—“About 20 witnesses,” Fitts said. But no one explained to the jury that without such a chain, the evidence presented might not actually be the evidence it was represented to be.
Fitts had Wolfer expound upon his credentials, not noting the odd fact that a guy with such credentials who had worked with the LAPD’s crime lab for over 15 years would still be “just a police officer,” not a sergeant, not a lieutenant.
Fitts had Wolfer discuss a large blow-up of the bullet fragments. Cooper interrupted and asked if Wolfer had a smaller version of those pictures. Cooper asked to approach the bench and told Judge Walker he thought the bullet pictures and the pictures of Kennedy that were also to be introduced were “highly inflammatory.” Once again, Cooper offered to stipulate to all the evidence Fitts was about to present. But was this motivated by a desire to serve Sirhan, or something else?
Table 1: Trial exhibi
t numbers for the bullets
PEOPLE’S EXHIBIT
DESCRIPTION (stipulated to but not proven in court)
47
Bullet retrieved from Kennedy’s neck during the autopsy
48
Two vials containing bullet fragments removed from the head of Senator Kennedy
50
Two bullet fragments retrieved from Paul Schrade’s head
51
Bullet removed from Irwin Stroll
52
Bullet removed from Ira Goldstein
53
Two bullet fragments removed from the head of Elizabeth Evans
54
Bullet removed from William Weisel
55
Three test bullets fired into the water recovery tank at LAPD
Cooper seemed more concerned that “this bullet fragment … looks like a bullet from an exceptionally large revolver.” Indeed, a fragment with a diameter of 12mm (.47 inches) had been reported in the autopsy report as having been recovered from inside Kennedy’s head. A fragment that large would have to have come from a gun much larger than Sirhan’s .22 caliber one. Did Cooper realize that was evidence of conspiracy? Others would, as you’ll read in later chapters.
Fitts said he would allow the jury to see the actual bullet “fragment” so they would understand how truly small it was. Which “fragment” would he show them, though? The largest one or a more appropriately sized one?
Cooper also objected to showing photos of Robert Kennedy after he was shot, claiming they would not only hurt his client’s chances but put images in the head of the Kennedy family that they didn’t need to see. But again, was that his chief concern? His concern and Fitts’ seemed to dovetail. Neither wanted anything that would suggest a conspiracy to be introduced. They just had different opinions as to how best to avoid that. Fitts told the Judge:
With reference to the circumstances of the shooting, your Honor, your Honor has heard Karl Uecker and any number of witnesses who attempted to describe what happened; one witness has put the muzzle of the revolver some three or four feet from the Senator’s head; others have had it at varying ranges. The only way we can clear up whatever ambiguity there may be there and to show the truth is by the testimony of this witness who, on the basis of the powder tattooing and the experiments that he performed with respect thereto, will testify that the muzzle range with respect to the Senator’s head was about one inch.
Now I think the prosecution is entitled to present that.
But that made no sense. You can’t prove Sirhan was within an inch when all the witnesses said he was further away simply by showing that Kennedy was shot from an inch. That’s assuming your conclusion: there was only one shooter, so Sirhan had to be an inch away. Sherlock Holmes would have objected to this faulty logic. If you follow only the evidence presented, Sirhan was placed a few feet from Kennedy by the most credible witnesses; therefore, there had to be a second shooter. And Cooper could not have been simply ignorant of the significance of the distance issue. Remember that before the trial began, Kaiser, the defense team investigator, had notified Cooper of the fact that no witness put Sirhan’s gun muzzle anywhere near close to an inch from Kennedy. All witnesses who identified Sirhan as the shooter put his gun more than two feet from Kennedy.
But Cooper was no Sherlock Holmes and compounded the problem by agreeing with it:
Your honor, we have no objection to his testifying that he observed these powder burns and we have no objection to his testifying to whatever his opinion is, but I don’t feel it’s necessary to illustrate it. We don’t quarrel that it was held within one inch.
Judge Walker overruled Cooper’s objections to the display of Kennedy autopsy photographs and overruled Cooper’s next suggestion that one photo would suffice and that showing two or more was unnecessary and prejudicial. Was the Judge deliberately trying to help the prosecution here? Photos of a dead person always bring up emotions, and numerous studies have shown people to be more persuaded by their emotions than by their logic.
Fitts showed Wolfer the evidence envelope for People’s 55, which contained three test shots Wolfer claimed he took from the Sirhan gun. These, Wolfer said, were the bullets he had used to perform a comparison test against the other bullets to see if they had identical markings, indicating they came from the same gun.
Now, these riflings are important from the standpoint that different manufacturers have different rifling specifications, and they spin right and left, and they go anywhere from four, five, six, up to twenty-two lands and grooves, and they have a gyroscopic value, and these are important also for identification purposes. But even more important are the imperfections that creep in, and that bullet [he meant gun barrel] produces a series of thousands of scratch marks on this bullet.
Looking at the scratches under the comparison microscope and the lands and grooves of this test bullet being in evidence, if I can have them, the scratches and the lands, the majority of the lands, I can say that they were fired from this gun and no other gun, and that is what I attempted to do with each of the exhibits.
Fitts asked if these markings were akin to fingerprints, such that bullets fired from one gun barrel could not match those fired from another gun barrel.
“That is correct,” Wolfer said.
Fitts then asked Wolfer if some bullets were “sufficiently impaired so you could not make a comparison under the comparison microscope?”
“They were.”
Fitts asked which bullets could not be used for a match, but Wolfer apparently either misheard or misunderstood the question, because he then named the Kennedy neck bullet, the Goldstein bullet, and the Weisel bullet. If Wolfer had correctly stated that the victim bullets could not be matched to Sirhan’s gun, he had just made a liar of himself—first claiming a match between the test bullets from Sirhan’s gun and the victim bullets, and then saying a match could not have been made because the victim bullets were “sufficiently impaired” to make the match impossible.
Wolfer gave the wrong evidence number, too. Wolfer had referenced Exhibit No. 56, and Cooper interjected “Pardon me, 54, Item 56?”
Judge Walker responded with “You are correct, Counsel. I am sorry. That is right. It is actually People’s Exhibit No. 54, were [sic] fired from this gun and no other gun.” The Judge was repeating Wolfer’s statement to the jury as if it were a fact, that the bullets had been fired from that gun, rather than letting the jury weigh and decide whether what Wolfer said was a true statement. When I sat on a jury, the judge made clear to us jurors that nothing a witness said was necessarily a fact until and unless the jury decided it was a fact. Sworn statements were evidence to be weighed and considered, but not necessarily facts. Here, Judge Walker appeared clearly to be both correcting Wolfer’s error and adding his own stamp of approval.
And this was a terrible thing, because William Harper, the criminalist who had warned Cooper not to trust Wolfer before the trial began, discovered after this trial that the envelope in which the test bullets had been kept was marked with a wholly different gun number than either the gun at the trial or the gun turned in by Rafer. Harper discovered the bullets were in an envelope marked with gun number H18602 when it should have been marked with H53725. The mismatched evidence envelope slipped into the record unnoticed at the time, with Cooper’s stipulation and Judge Walker’s stamp of approval.
Wolfer then made another misstatement, buried in a mishmash of grammatical errors:
In the case of People’s Exhibit 48, this was a bullet taken from Senator Kennedy, and the bullet was extremely or badly damaged, which is well depicted here in [the photograph] People’s 49. This was damaged to the point, and I say that these were Mini-Mag ammunition, which is the same ammunition as previously used in my test, they were Mini-Mag ammunition that was fired from the gun of the same ballistic rifling specification as that of People’s No. 6, but because of the damage, I cannot say positively that it was fired from that gun.
“Ju
st a moment, sir,” Fitts said, stopping Wolfer to clarify for the jury that Wolfer didn’t mean “a bullet” couldn’t be matched to Sirhan’s gun. “With reference to People’s 48, that exhibit consists of fragments, does it not, sir?”
“Yes, it does.”
Wolfer had said People’s 48 had “a bullet,” in it, not fragments. Fitts did his best to marry the two in the jury’s minds.
“By your testimony, you were using fragment bullets?” Fitts suggested, trying to cover Wolfer’s error.
“Fragments of People’s No. 48,” Wolfer said.
“We are talking about fragments of one bullet, are we not?” Fitts prompted.
“Yes, we are.”
In a later chapter, we’ll see that Wolfer may well have meant “a bullet,” just as he said, and not the one that produced the fragments. Wolfer may have inadvertently told the truth, without meaning to, at the trial.
Fitts asked Wolfer to discuss the Elizabeth Evans “fragments.” Recall how the FBI not only called it a bullet but also said the chain of possession had been broken and that her “bullet” could not be entered into evidence for that reason. Wolfer responded to Fitts that Evans’ “fragments” were all from Mini-Mag ammunition but that the rifling characteristics were “very weak” and the “fragments” were “too badly damaged” to make any kind of identification. It sounds more like the bullet didn’t match Sirhan’s gun or possibly the other bullets from the pantry, so Wolfer turned her bullet into “fragments” to avoid the problem.
The next exchange showed how stage-managed the show for the jury was. Cooper again objected to putting photographs of Kennedy’s autopsy into evidence.
