Wednesday, June 3, 2015

RFK’s Ghost Still Haunting California

While I was in law school with nose glued inside dry case books, a sadly ironic drama unfolded. It was a California drama rife with injustice—the type of injustice law professors typically instruct students to ignore as delusions of the hoi polloi.

Early in 2012, the Attorney General of the State of California, Kamala Harris, found herself squished between a rabid pack of conspiracy theorists and those invisible forces (i.e., “them”) that run things in the world based on secret policies and undemocratic decision-making. Harris had submitted a court document on behalf of the respondents named in a Federal writ of habeas corpus filed by Sirhan Bishara Sirhan (b. 1944) back in the year 2000.

I took a seminar in habeas corpus, which the professor running it insisted is currently the most difficult area of law. So difficult, in fact, that such writs are routinely punted to roving magistrate judges, who presumably have more time than other Federal judges to bone up on and master all the intricacies.

The crux of the habeas corpus complexity lies in a 1996 law called the Antiterrorism and Effective Death Penalty Act (AEDPA). Even the most conservative students in my seminar had to admit that AEDPA has had the effect of suspending the writ, something the Constitution expressly prohibits, unless public safety requires it in times of insurrection or invasion.

Still, AEDPA does not apply to Sirhan’s writ, because his conviction became final in the 1970s, long before its enactment. On the other hand, this law provides that writs for older judgments like Sirhan’s should be filed by April 1997 (in essence, like the one-year statute of limitations that is normally invoked). Of course, filing Sirhan’s writ in 2000 clearly has made it barred by AEDPA’s explicit statute of limitations.

To overcome this bar, Sirhan’s lawyers have found a loophole around AEDPA, quoting a 1995 Supreme Court case, Schlup v. Delo. If Sirhan can prove he is actually innocent, the bar of the statute of limitations can be lifted.

As much as this may continue to be a glimmer of hope for Sirhan, he must still overcome the extremely high standard set in the Schlup test, which is to present new evidence showing that it is more likely than not that no reasonable juror could have found him guilty.

Sirhan’s ardent defense lawyers have always valiantly attempted to connect the dots of a half-century of conspiracy theorists. But to satisfy Schlup, they can only rely on “new” evidence, that is, evidence not presented at his trial during the early 1970s.

Most notably as “new” evidence, an audio recording by a Canadian journalist (Stanislaw Pruszynski) has been analyzed by now state-of-the-art technology showing that at least 13 shots were fired in the pantry at the Ambassador Hotel where RFK was assassinated. Sirhan’s gun only carried eight bullets.

Also “new,” another journalist and eyewitness (Nina Rhodes-Hughes) claims that a transcript of her “original statement” to the FBI of hearing only eight shots was falsified. She now claims that she initially heard a few of Sirhan’s shots to the left of her followed by a rapid fire of different shots to the right of her—12 to 14 shots in all.

Sirhan’s lawyers have also included a declaration by a psychology professor (Daniel Brown) and law professor (Alan Scheflin) stating the history of mind control experiments by the CIA and others, which included techniques involving hallucinogenic drugs and hypnosis, to “program” potential agents to follow orders once they were “activated” by a code word or gesture—the rich stuff that conspiracy theorists have been generously coloring their hypotheses with all along. The fact that Sirhan has always claimed to not remember the actual shooting, basing his guilty plea on his own admission that he nevertheless must have been the shooter, feeds this notion that he actually was “programed” to stand in front of the victim and start shooting while someone from behind actually fired the deadly shot. The coroner who performed RFK’s autopsy (Thomas Noguchi) in 1968 confirmed the fatal bullet entered the right mastoid only inches from the victim’s ear, uniquely tattooing it with powder burns.

In response, Harris’s document specifically debunks the actual innocence claim with these and several other points: 1) the Pruszynski tape has been analyzed by other sound experts differently; 2) Rhodes-Hughes new testimony is inconclusive; 3) Noguchi’s autopsy conclusions were available at trial, but simply not used; 4) even if further allegations that ballistic evidence was tampered with are true, they only offer “speculative inferences” about Sirhan’s actual innocence; and 5) the theories of Brown and Scheflin are “unreliable and speculative,” if not altogether “fantastic.” I even recall watching television news coverage of the filing of Harris’s document, including a young woman presumably from Harris’s office even suggesting that the crime is so old now, nobody really cares about it anymore.

In August 2013, a habeas corpus expert (Magistrate Judge Andrew J. Wistrich) wrote a 60-page opinion recommending that a motion by the respondent to dismiss Sirhan’s writ be granted. Earlier this year, in January, District Judge Beverly Reid O’Connell did just that.

At the end of the day, Harris nonchalantly steered her canoe through roaring white water, poising herself as a viable candidate in 2016 for U.S. Senator. Had she not buried the Sirhan matter as tidily as she did, she risked a barrage of bad press and political shenanigans, much as Jim Garrison did in the late 1960s as depicted in Oliver Stone’s movie JFK.

Moreover, Harris had to tow an official line dismissing conspiracy theorists as kooks that the law cannot bother with and affirming a bright and shiny reality that the well-groomed people running America’s government are privileged as they are because they see the truth of reality clearer. Going through law school should help you unravel the sophisticated ideas behind AEDPA and today’s habeas corpus law, but if you can't hack it, we cannot wait for you. Meanwhile, the bloody, awful event that was the public assassination of a man who probably would have been elected President in 1968 remains nothing more than an act of random and senseless violence by a disturbed individual.

Harris admittedly played good soldier, hardly working up a sweat, and creating the cosmetic appearance that all’s well in California, as long as nutcases like Sirhan remain behind bars and the so-called mysteries surrounding cases like his remain ignored. Why then do I feel that law as practiced today is no different than it has been for thousands of years: a hocus pocus and tap dance to get the hoi polloi looking the other way so that the king (or "them") can do the dirty work required to stay in power?

And isn’t this precisely what law school is teaching us? Hocus pocus and tap dancing?

And endurance. Almost 50 years later, the magic act continues as does the dancing.

I remember career day at my law school, when a representative from Harris’s office was sitting at a desk, available to students for light conversation about possible careers. In the most calm and unassuming tone I could muster, I told her I was very interested in the Sirhan case. She acted with alarm and said she didn’t understand what I was talking about and that there were no positions available at Harris’s office.

In fact, she was the only person at career day who was not cordial and pleasant to me. Is it then really so “fantastic” to believe that one code word can set someone off into a predetermined and choreographed behavior?

Alakazam and clickety clack.



  2. Our Attorney General does not know the evidence and the Prosecution failed its responsibility from 2 hours after the shooting that night

  3. Thank you so much to Paul Schrade for his input here. He was standing next to RFK in the pantry that night and was himself wounded in the head.