News and Views

July 17 2018, 6:30 a.m.

On a Monday afternoon, on July 9, the D.C. Court of Appeals handed down a 2-1 decision against me and in favor of the CIA in a long-running Freedom of Information Act lawsuit. At 4:20 p.m., Judges Brett Kavanaugh and Gregory Katsas, a Trump appointee, filed a 14-page opinion with the clerk of the court in Washington. They ruled that the CIA had acted “reasonably” in responding to my request for certain ancient files related to the assassination of President John F. Kennedy in 1963. Appended to their decision was a 17-page dissent from their colleague Judge Karen LeCraft Henderson who strongly objected to their decision.

That evening, President Donald Trump announced to the world that Kavanaugh was his choice to fill the Supreme Court seat of retiring Justice Anthony Kennedy. In his remarks at the White House event, Kavanaugh touted his “Female Relationship Resume” and declared, “My judicial philosophy is straightforward: A judge must be independent and must interpret the law, not make the law.”

In her tart dissent issued that morning, Henderson, the senior judge in the D.C. Court of Appeals, called that claim into question. She took Kavanaugh to task precisely for a lack of independence and for making law, rather than interpreting it. On the issue of compensation for successful FOIA litigants, Henderson said the prospective Supreme Court justice ignored the letter of the law while siding with a “recalcitrant” CIA over a working journalist — i.e., me — who had uncovered information of genuine public benefit.

Kavanaugh’s ruling in Morley v. CIA was of a piece with his record as an advocate of unbridled executive branch power. His view that at a sitting president cannot be indicted, or even subpoenaed, is well known. Less known is his permissive treatment of the CIA. In my case, as in another key FOIA case from 2014, Kavanaugh ruled that the agency could not be held publicly accountable for its actions — even ones that occurred more than 50 years ago.

Kavanaugh and Katsas Ruling in Morely v CIA14 pages

Henderson not only dismantled Kavanaugh’s arguments, but her dissent also identified some recurring flaws in his jurisprudence. The source was almost as notable as the document itself.

Henderson is no liberal. She was working as lawyer in private practice in Charleston, South Carolina, when President Ronald Reagan appointed her to the federal bench in 1986. In 1990, President George H.W. Bush elevated her to the D.C. Court of Appeals. She is a conservative who chafes at concepts like abortion rights and immigrant rights. Last October, she joined Kavanaugh in ruling that a pregnant, unaccompanied 17-year-old migrant did not have the right to obtain an abortion while in custody of the Department of Homeland Security.

Henderson faulted her colleague Kavanaugh on impeccably conservative grounds. “

In other instances, Henderson has given the benefit of the doubt to U.S. national security agencies. In 2008, she ruled against four Guantánamo detainees seeking to sue Defense Secretary Donald Rumsfeld for the torture they endured. She dismissed their case with the rather blithe observation that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.”

Henderson, however, didn’t give Kavanaugh the benefit of the doubt in Morley v. CIA. Rather, she faulted her colleague on impeccably conservative grounds: his excessive deference to government arguments, which she found unwarranted by facts; his willingness to overlook relevant law, which she found inexplicable; and his willingness to substitute his own opinions for the law, which she found unacceptable. She wrote, “The majority, it appears to me, overlooks the district court’s latest errors in order to ‘bring the case to an end.’”

Henderson’s dissent illuminates Kavanaugh in action: a creative and cavalier judge who is willing to make law — not interpret it —when it comes to ruling in favor of the government.

I had glimpsed Kavanaugh up close several times in the course of my lawsuit, which was filed in 2003. He heard oral arguments from my pro bono attorney Jim Lesar three times, in 2011, 2014, and 2018. In these hearings, he struck me as an engaged jurist with an agile mind. He asked incisive questions. In his subsequent written decisions, I could discern his judgment on how FOIA law applies to issues of journalism, transparency, and national security. He was conservative, but smart and seemingly open to opposing arguments. I had harbored hopes that he might rule in my favor, but his agility was more opportunistic than independent.

A review of the “protracted history” — Henderson’s phrase — of the case shows why. In Morley v. CIA, I sought the records of a deceased undercover CIA officer, George Joannides. Based on extensive interviews with his former Cuban-American associates, I knew Joannides was working undercover out of Miami in 1963 and had some knowledge about events leading up to the assassination of John F. Kennedy. Joannides had also served as the agency’s liaison to congressional investigators who re-opened the JFK investigation in 1978.

JOANNIDES-RECEIVES-CIA-MEDAL-O71581-1531753164

CIA officer George Joannides, left, receives a Career Intelligence Medal in 1981 from deputy CIA director Bobby Ray Inman. (Photo: CIA)

In 2004, the CIA responded by giving me a small batch of documents from Joannides’s personnel file. Beyond that, the agency asked for summary judgment to block any further releases, which was promptly granted by District Court Judge Richard Leon, a George W. Bush appointee. Lesar filed an appeal on my behalf, contending that the CIA had not conducted the searches required by law.In December 2007, a three-judge panel — including Henderson — upheld most of Lesar’s arguments. The judges unanimously agreed that the agency’s actions had failed to follow the Freedom of Information Act on no less than seven different points of law. The court ordered the CIA to reconsider its response and conduct additional file searches. Nine months later, the CIA gave me an additional 500 pages of documents, including photographs of Joannides receiving a Career Intelligence Medal, one of the agency’s highest honors.

I appealed, seeking still more documents. In April 2012, another three-judge panel — this time including Kavanaugh — ruled my arguments were without merit and the case was closed, at least on the issue of what documents would be released.

Yet I had one more argument. The case law around the FOIA holds that when a plaintiff “substantially prevails” over the government, they are entitled to have their court costs paid by the defendant. So I filed a motion for the government to pay my court costs, namely compensation for Lesar.

A veteran FOIA litigator, Lesar often takes difficult cases on a contingency basis for working journalists or public interest causes, gambling that if he wins, the government will pay his fee. His clients have included well-known authors and veteran Washington journalists. In Morley v. CIA, he had merely bested a squadron of CIA and Justice Department lawyers with three-piece suits and six-figure salaries. I thought he should get compensated, and the law indicated the same.

The CIA refused, claiming there was little “public benefit” to the new information generated by the lawsuit. Leon, the district court judge, agreed. I appealed again, thinking my case was strong. By then, the lawsuit had been covered by the New York Times and Fox News. The Associated Press New York office had compiled a long report on still-secret JFK records, including the Joannides files, which ran in 30 news outlets across the country, including the San Diego Union, St. Paul Pioneer Press, and CBS News in Dallas. The Times and at least six other news sites published the photo of Joannides receiving his medal, which the CIA had only coughed up under judicial order. In short, many news editors thought the information I had found would benefit their readers. I expected that would count for something.

From left, U.S. Senate Majority Whip Mitch McConnell, R-Ky., then-D.C. Circuit Court of Appeals nominee Brett Kavanaugh, and Senate Majority Leader Bill Frist, R-Tenn., hold a news conference in the Capitol on May 22, 2006. (Photo: Chip Somodevilla/Getty Images)

Kavanaugh served on the three-judge panel that heard oral arguments on the issue in 2014. He and two other judges agreed that Leon had failed to apply a four-factor test of “public benefit,” established in previous FOIA cases. The test balances the value of the information sought or obtained for an informed citizenry, the plaintiff’s commercial interests, and the government’s actions. Leon, they found, had improperly relied on only one factor: His belief that the release of Joannides files had added nothing of substance to the JFK assassination story. The appellate court sent the case back.In March 2017, Leon shuffled his thoughts and once again ruled that there was no “public benefit” from my case. I again appealed, and, a year later, I finally had my day in court. On March 19, 2018, a new three-judge panel consisting of Kavanaugh, Henderson, and the newcomer Katsas heard the latest round of arguments in the federal courthouse in Washington. By that time, Kavanaugh knew that his name was on Trump’s November 2017 short list of candidates to fill the next Supreme Court vacancy.

Kavanaugh was his usual brisk self in the hearing. He gaveled from the center seat while Henderson listened remotely by telephone, and the forlorn Katsas looked on, perhaps bewildered by the complexity of a case infused with the conspiratorial overtones that inevitably shroud any public discussion of the JFK story. Kavanaugh closely questioned Lesar, while Henderson corrected the government attorney Benton Peterson on a point of fact. After 30 minutes of questions, the hearing was over.

Kavanaugh’s decision could not be considered a surprise. He had sided with the CIA before.

The three judges deliberated for three and a half months. They filed a split decision on July 9 that was delivered per curiam — “by the court” in Latin — denoting an unsigned opinion usually reserved for unanimous or collective decisions. It was an odd designation for a decision contested by the senior judge on the Court of Appeals, but the label spared Kavanaugh from having his name on a pro-CIA decision on the same day as a big announcement. Five hours after the opinion was filed, Kavanaugh stood beaming with his wife and daughters in front of the TV cameras as Trump announced his nomination for the Supreme Court.

Kavanaugh’s decision could not be considered a surprise. He had sided with the CIA before. In 2014, he ruled against the nonprofit National Security Archive in a prolonged FOIA lawsuit over an internal history of the failed 1961 CIA operation at the Bay of Pigs. Kavanaugh, in a 2-1 ruling, agreed with CIA and Justice Department lawyers that the document was a “draft,” and its release would “expose an agency’s decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.”

Kavanaugh was referring to a study that was 50 years old. Congress quickly overturned his decision with legislation mandating that such histories be released after 25 years.

In my case, Kavanaugh ruled for the CIA again.

“This FOIA case has dragged on for a staggering 15 years,” the majority opinion began, a line that seems likely to have been written by Kavanaugh, given Katsas’s recent arrival on the bench. “The litigation over attorney’s fees alone has taken eight years. It is time to bring the case to an end.”

The CIA had acted “reasonably,” he said. The word recurred 15 times in the opinion. The words “reasonable” and “unreasonable” showed up 24 times. The CIA had been reasonable, Kavanaugh wrote, while depicting me as a modestly paid scrounger who was wasting the court’s time over claims of “minimal” interest about the JFK assassination. He said nothing about the JFK Records Act as a unanimous expression of Congress in support of full disclosure or about the mainstream media coverage of the lawsuit as a possible public benefit.

In her tightly argued dissent, Henderson wasted no time in blasting Kavanaugh’s insinuations.

“Over the past 15 years, we have remanded this case four times,” she declared. “During the same period, we have reversed the same district court twice in a nearly identical Freedom of Information Act (FOIA) cases. That makes six opinions from this court. I share the majority’s displeasure at the resulting waste of judicial resources, especially because ‘fee litigation [is] one of the last thing lawyers and judges should be spending their time on,’” she wrote, citing one of her old decisions in a separate case. Henderson added, “Jefferson Morley, however, is not to blame for this ‘staggering’ saga.”

Henderson pointed out that the court’s 2013 remand order found that I had already met the standard of “public benefit” established in case law. She quoted that decision at length and went on to briefly outline some key points in my case, namely, the connections between Joannides, an anti-Batista-turned-anti-Castro Cuban exile group called Directorio Revolucionario Estudiantil, and accused JFK assassin Lee Harvey Oswald:

Morley’s request had potential public value. He has proffered — and the CIA has not disputed — that Joannides served as the CIA case officer for a Cuban group, the DRE, with whose officers Oswald was in contact prior to the assassination. “

She noted that the court had also “previously determined that Morley’s request sought information ‘central’ to an intelligence committee’s inquiry into the performance of the CIA and other federal agencies in investigating the assassination. “

“In other words,” the exasperated Henderson wrote, “we held that Morley satisfied the public-benefit factor in this case.”

“To me, the CIA’s multiple flawed legal positions suggests that it was ‘recalcitrant’ in declining to produce any documents before being sued.”

By ignoring this finding, Henderson went on, Kavanaugh ultimately depended on repeated assertions that the CIA responded “reasonably” to my inquiries. Yet, Henderson noted the appellate court’s 2007 decision found the agency’s initial response to my FOIA request was deficient on seven different legal points. Kavanagh had decided in favor of an agency that had flouted the law, she concluded.

“To me, the CIA’s multiple flawed legal positions suggests that it was ‘recalcitrant’ in declining to produce any documents before being sued,” Henderson wrote.

While Kavanaugh had shot me down, I could take Henderson’s closing words as a moral victory. She wrote:

This case does not call for “[d]eference piled on deference.” … It calls for an adherence to … our four earlier Morley opinions. Because I believe the district court ignored our mandate and misapplied our precedent, I would vacate the district court order a fifth time and remand with instructions to award Morley the attorney’s fees to which he is entitled. “

Henderson’s dissent stands as a warning from a civil and conservative colleague about Supreme Court nominee Brett Kavanaugh. She has identified a strain of recklessness in Kavanaugh’s cynical jurisprudence. She wrote that, in his opinion with Katsas, Kavanaugh had “ignored our mandate and misapplied our precedent.”

Top photo: Judge Brett Kavanaugh listens to Sen. Rob Portman, R-Ohio, talk about Kavanaugh’s qualifications before a meeting in the Russell Senate Office Building on July 11, 2018, in Washington, D.C.

VISIT THE INTERCEPT

RELATED: Kavanaugh and Katsas Ruling in Morely v CIA 14 pages

RELATED: Henderson Dissent in Morely v. CIA – The Intercept

Courtesy of Jefferson Morley and JFKFACTS.ORG

10 July, 2018.

The DC Court of Appeals ruled 2-1 on Monday that the CIA does not have to pay my court costs incurred in the long-running FOIA lawsuit Morley v. CIA. The split decision was joined by Judge Brett Kavanaugh, who was nominated by President Trump later that day to serve on the the Supreme Court.

Judge Brett Kavanaugh

About the information I obtained via litigation, the unsigned opinion said, “the public benefit was small.” The decision made no reference to extensive coverage of Morley v . CIA in the New York Times, Fox News, San Diego Union, St. Paul Pioneer Press, CBS News in Dallas, and the New Yorker, among many other news organizations.

The Times and the U.K. Daily Mail, even published a photo, obtained by the lawsuit, of CIA officer George Joannides receiving a medal after he stonewalled JFK investigators. In the majority view, public interest in Morley v CIA is not a measure of its public benefit.

A strong dissent by Judge Karen Henderson takes a much more balanced and independent view of the case, in my view. Appointed by President George H.W. Bush in 1990, Henderson points out that the court had previously found that I had met the standard of “public benefit” established in case law.

In a 2013 decision the court stated.

Morley’s request had potential public value. He has proffered—and the CIA has not disputed— that Joannides served as the CIA case officer for a Cuban group, the DRE, with whose officers Oswald was in contact prior to the assassination. Travel records showing a very close match between Joannides’s and Oswald’s times in New Orleans might, for example, have (marginally) supported one of the hypotheses swirling around the assassination. In addition, this court has previously determined that Morley’s request sought information “central” to an intelligence committee’s inquiry into the performance of the CIA and other federal agencies in investigating the assassination. Under these circumstances, there was at least a modest probability that Morley’s request would generate information relevant to the assassination or later investigations.

Judge Karen Henderson

“In other words,” Henderson writes, “we held that Morley satisfied the public-benefit factor in this case,”

By ignoring this finding, Henderson argues, the majority opinion ultimately depends on the assertion that the CIA responded “reasonably” to my request. Yet, Henderson notes, the ruling also ignores the fact that the DC Court of Appeals had ruled the agency’s initial response to my FOIA request was deficient on seven different legal points.

Henderson again:

The majority discusses five in its opinion. It acknowledges that the CIA: (1) missed the 20-day statutory deadline to respond, Maj. Op. 7; (2) incorrectly referred Morley to NARA rather than responding to his FOIA request itself, Maj. Op. 7-11; (3) failed to search its operational files, Maj. Op. 11; (4) submitted an incomplete Glomar response, Maj. Op. 11-12; and (5) relied on an interpretation of Exemption 2 that was later overruled, Maj. Op. 12. It addresses these errors of law seriatim and labels them “incorrect legally,” Maj. Op. 9, but not “unreasonable.” To me, the CIA’s multiple flawed legal positions suggests that it was “recalcitrant” in declining to produce any documents before being sued. Davy IV, 550 F.3d at 1162. At the least, the errors collectively undermine the district court’s conclusion that the fourth factor “weighs heavily against Morley.” Morley X, 245 F. Supp. 3d at 78 (emphasis added).

Henderson concludes:

In sum, I believe the district court erred on two levels: it erred in evaluating each of the four factors individually and abused its discretion in weighing them against one another. Accordingly, this case does not call for “[d]eference piled on deference.” Maj. Op. 11. It calls for an adherence to Davy IV and our four earlier Morley opinions. Because I believe the district court ignored our mandate and misapplied our precedent, I would vacate the district court order a fifth time and remand with instructions to award Morley the attorney’s fees to which he is entitled.

Unfortunately, the majority, meaning Kavanaugh and Trump appointee Judge Gregory Katsas, disagreed. I have 45 days to appeal.

Rex Bradford, President, Mary Ferrell Foundation June 18, 2018

SUMMARY

Under the President John F. Kennedy Records Collection Act of 1992 (“JFK Records Act”), the Assassination Records Review Board (“ARRB”) oversaw the declassification of millions of pages of formerly classified records. But a significant number of documents were withheld in full, and many more were withheld with “redactions” (portions withheld from view).

As noted in the ARRB’s Final Report, the JFK Records Act included a provision for full release 25 years after its passage. Specifically, it “mandated that all postponed assassination records be opened to the public no later than the year 2017” unless the President certifies that (1) “continued postponement is made necessary by an identifiable harm to the military, defense, intelligence operations, law enforcement, or conduct of foreign relations” and (2) “the identifiable harm is of such gravity that it outweighs the public interest in disclosure.” (https://www.maryferrell.org/showDoc.html?docId=3611#relPageId=33).

Instead of full disclosure, what occurred was a rolling set of partial releases, 7 so far, along with continued withholding. On the positive side, for the first time the National Archives and Records Administration (NARA) published the newly released documents online in PDF format, a huge boon to researchers. But this process has been marred by errors and confusion, as documented herein.

Currently according to NARA, 15,834 documents remain withheld in part, along with a smaller set still withheld in full. Both the current state of affairs, and the process by which releases have occurred, are less than satisfactory.

This paper documents the recent history of releases and the numerous problems with the process and the current state of affairs. It does not discuss the question of “what’s in the new records?” – suffice to say that there are important documents being uncovered, related to the assassination investigations and also the context of Kennedy Cold War policies, and that the full “digestion” process will take time.

RELEASE HISTORY

After an early release of records in July of 2017, the 25-year anniversary arrived on October 26. Against a backdrop of lobbying by federal agencies, President Trump
signed an authorization for continued withholding of most of the remaining records, release of some, and an accompanying review process with a 6-month deadline.

In November and December of 2017, 4 additional releases happened. When the 6month review deadline came on April 26, 2018, a seventh release occurred, along with continued withholding and a new review deadline set for 2020.

In all, tens of thousands of documents were released or re-released, though over 15,000 documents remain withheld at least in part.

Continue reading: DOWNLOAD THE ENTIRE ARTICLE

by Tom Jackman June 5 at 5:00 AM

Paul Schrade, who was hit by one of the bullets fired during the assassination of Robert F. Kennedy, holds a news conference in his Los Angeles hospital room five days after the June 1968 shooting. Beginning in 1974, Schrade launched a campaign to reinvestigate the case, which he continues to do at age 93. (AP)

LOS ANGELES — For six years after he was shot and wounded while walking behind Robert F. Kennedy in the Ambassador Hotel in June 1968, Paul Schrade mourned the loss of his friend and stayed out of the public eye. But beginning with a news conference in 1974, Schrade has demanded answers to the question of whether a second gunman — and not Sirhan Sirhan — killed Kennedy.

Soon after Sirhan’s trial ended with his first-degree-murder conviction in April 1969, journalists noted that Kennedy had been shot in the back of the head at point-blank range, but witnesses all said Sirhan was standing in front of Kennedy. Bullet holes found in the doors of the crime scene indicated more shots were fired than could have come from Sirhan’s eight-shot .22-caliber pistol, some witnesses said. Sirhan’s defense team had not challenged any of the physical evidence at trial.

[‘A train to the end of an era’: Reflecting on RFK’s 200-mile funeral procession]

Fifty years after the assassination, Schrade is still pushing for a new investigation.” I’m interested in finding out how the prosecutor convicted Sirhan with no evidence, knowing there was a second gunman,” Schrade said. “The truth is not known yet about who killed Robert Kennedy.” Schrade, now 93, believes Sirhan wounded him and four other people but did not fire the fatal shot into Kennedy.

Schrade has been supported in his calls for a new investigation into the case by Robert F. Kennedy Jr., who met with Sirhan in prison last December and told The Washington Post that “the wrong person might have been convicted of killing my father.” Now Robert Kennedy’s daughter Kathleen Kennedy Townsend has joined Schrade and her brother.

[Who killed Bobby Kennedy? His son RFK Jr. doesn’t believe it was Sirhan Sirhan]

“Bobby makes a compelling case,” the former Maryland lieutenant governor told The Post. “I think it should be reopened.”

Kathleen Kennedy Townsend speaks to members of the media in 2016 at an event in Boston announcing the naming of a Navy ship in honor of her father, Robert F. Kennedy. Townsend says she thinks the investigation into her father’s assassination should be reopened. (Paul Marotta)

Three other Kennedy children — former Congressman Joe Kennedy, activist Kerry Kennedy and filmmaker Rory Kennedy — have said they do not think the case should be reopened. Ethel Kennedy, the senator’s widow and now 90, has not commented.

Schrade and a host of authors and researchers point to a number of apparent missteps by the Los Angeles police and prosecutors in focusing solely on Sirhan, while suppressing evidence of a second shooter, such as:

• Prosecutors withheld the autopsy report from Sirhan’s defense lawyers until six weeks into the trial, showing that Kennedy had been shot at point-blank range from behind. Five other people in the hotel pantry standing behind Kennedy, including Schrade, were hit by bullets fired from in front of them.

• Police failed to investigate an armed private-security guard who was walking behind Kennedy at precisely the angle where the fatal shots to Kennedy’s head and back were fired. He has consistently denied firing his weapon but has told conflicting stories over the years.

• Police officers and FBI agents identified apparent bullet holes in two door frames of the pantry, indicating more than eight shots were fired. But no evidence of those holes was presented at trial, and the Los Angeles police destroyed the door frames shortly after the trial.

• The lead crime-scene investigator testified at trial that bullets from the wounded victims matched a bullet from Kennedy, but presented no photos or evidence to support that. When two ballistics experts examined the bullets after the trial, they found the bullets didn’t match. Subsequent investigations couldn’t match any of the bullets to Sirhan’s gun. The crime-scene investigator was subsequently criticized even by prosecutors for sloppy work in the case, by a judge for seeming perjury in another high-profile murder, and later suspended by his own police chief.

• Los Angeles police bullied or ignored witnesses whose stories did not match the lone gunman scenario, records show, particularly people who claimed they saw Sirhan with a dark-haired woman in a white polka-dot dress. Then at trial, prosecutors brought in a blonde-haired woman with a green polka-dot dress and claimed she was the mysterious woman in question. Sirhan’s lawyers, focusing on a mental health defense, did not challenge that, either.

Los Angeles District Attorney Evelle Younger, seated in the light jacket, introduces his prosecution team for the murder trial of Sirhan Sirhan in June 1968. In the back row from left, deputy district attorneys Lynn D. Compton, John E. Howard and David N. Fitts tried the case. (George Brich/AP)

The Los Angeles police have heard all this criticism before, did some reinvestigation in the 1970s that confirmed their own work, and now consider the case closed. The Los Angeles district attorney’s office referred inquiries to the California attorney general’s office, which repeatedly defeated Sirhan’s appeals, and which declined to respond beyond court filings. The California and federal courts have consistently held that Sirhan was guilty of murder, even with new discoveries made in the decades after the early morning of June 5, 1968.

“Considering all of the evidence,” U.S. Magistrate Judge Andrew J. Wistrich wrote in 2013, “old and new, incriminatory and exculpatory, admissible and inadmissible, the Court cannot say that it is more likely than not that no reasonable juror would have found [Sirhan] guilty of the assassination of Senator Kennedy beyond a reasonable doubt.”

Lisa Pease, author of a forthcoming book on the investigation’s failures, said: “In ignoring the myriad evidence of conspiracy in this case, the LAPD and DA’s office created the seventh pantry victim: the truth. We have a guy in prison, provably by the evidence, for a crime he didn’t commit.”

There are facts that are not in dispute, namely that Sirhan had a .22-caliber pistol in the hotel pantry on June 5, 1968, and that he emptied all eight shots as Kennedy stood in front of him. Two Ambassador Hotel employees, Karl Uecker and Edward Minasian, said repeatedly that Uecker grabbed Sirhan’s wrist after two shots, slammed it to a table, and that Sirhan continued to fire wildly while being held down but never got close to Kennedy.

Sirhan Sirhan, right, being escorted to court by attorney Russell E. Parsons in June 1968 to face charges in the shooting of Sen. Robert F. Kennedy. The defense team did not challenge the police investigation, in part leading to Sirhan’s first-degree-murder conviction. (AP)

“I have told police and testified [to the grand jury],” Uecker said in a 1975 affidavit, “that there was a distance of at least one and one-half feet between the muzzle of Sirhan’s gun and Senator Kennedy’s head. The revolver was directly in front of my nose. … There is no way that the shots described in the autopsy could have come from Sirhan’s gun. … Sirhan never got close enough to a point-blank shot, never.”

But at trial, neither prosecutors nor Sirhan’s defense team focused on the distance between Kennedy and Sirhan. Though Sirhan and prosecutors reached a plea deal in January 1969 for Sirhan to admit guilt and receive a life sentence — a deal the judge rejected — and trial began on Jan. 7, records show prosecutors did not provide coroner Thomas Noguchi’s autopsy report until about Feb. 22. By that time, the defense had already decided to concede that Sirhan had shot Kennedy and was trying simply to avoid the death penalty by claiming he was mentally ill.

Noguchi found that four shots had been fired at Kennedy from at most three inches away. Three shots appeared to be in contact with Kennedy’s back and shoulder, based on powder burns to his jacket, Noguchi said, with one shot passing through the jacket’s shoulder pad and not touching Kennedy. All three were fired sharply upward. The fourth shot was fired into the back of Kennedy’s head from three inches away, Noguchi concluded, by test-firing a similar gun to determine how much gunpowder sprayed at various distances.

“Thus I have never said,” Noguchi wrote in his autobiography, “that Sirhan Sirhan killed Robert Kennedy.” At a conference last month of RFK assassination authors, Pittsburgh coroner Cyril Wecht pressed Noguchi as to whether there was a second gunman, but the 91-year-old pathologist said, “That’s not my duty.” He also told Wecht that defense attorneys never spoke with him before the trial and did not ask him about the muzzle distance at trial.

Los Angeles County Coroner Thomas Noguchi in 1970. His autopsy of Robert F. Kennedy revealed that the senator was shot from the back, but the report was not provided to Sirhan’s lawyers until six weeks into the trial. (George Brich/AP)

Prosecutors and some authors have theorized that Kennedy turned and raised his arm as the shots began, thus enabling Sirhan to hit him in the back. The government notes that the jury heard the evidence, convicted Sirhan and sentenced him to death, which was later commuted to a life term. But there was plenty of evidence the jury never heard. An appeal Sirhan’s current lawyers have pending to the Inter-American Commission on Human Rights says Sirhan suffered from ineffective assistance from his legal team.

[‘That stain of bloodshed’: After King’s assassination, RFK calmed an angry crowd with an unforgettable speech]

The defense attorneys also went lightly on Los Angeles police criminalist DeWayne Wolfer, who oversaw the crime-scene investigation. He and Noguchi were both photographed pointing to bullet holes in the pantry, and police removed those door frames. Numerous witnesses, including police officers and FBI agents, said the holes were made by bullets. But between the bullets which hit Kennedy and those which hit Schrade and four others, all the bullets from Sirhan’s gun had been accounted for by Wolfer.

“I’ve inspected quite a few crime scenes in my day,” FBI Special Agent William Bailey told authors William Klaber and Philip Melanson for their book, “Shadow Play: The Unsolved Murder of Robert F. Kennedy.” “These were clearly bullet holes; the wood around them was freshly broken away and I could see the base of a bullet in each one.” Many other people saw these holes, reports show.

In 1992, former LAPD organized crime Detective Mike Rothmiller filed an affidavit saying he had reviewed an internal intelligence report about the assassination which “listed a total of ten different bullets that had been recovered from the scene of the assassination and victims.” Rothmiller knew Sirhan’s gun held eight bullets. The report was never disclosed to Sirhan’s lawyers.

Two police officers inspect an apparent bullet hole discovered in a door frame in the pantry of the Ambassador Hotel in Los Angeles where Sen. Robert F. Kennedy was fatally wounded on June 5, 1968. The photographer’s caption noted, “Bullet is still in the wood.” Police concluded it wasn’t a bullet. (Dick Strobel/AP)

Wolfer concluded that the holes in the pantry had been made previously through hotel wear and tear, not bullets, though Uecker and other employees said the holes were not there before. The issue was not explored at trial, and when an article appeared in the Los Angeles Free Press shortly after the trial ended questioning the four holes, Los Angeles police destroyed the door frames, records show. The police said there was no room to hold the frames and they were not needed after the conviction, though Sirhan’s appeal was pending. Ceiling tiles with apparent bullet holes in them, removed from directly above the shooting area and also not introduced at trial, were destroyed by the police, too.

Crucially, Wolfer testified that a bullet removed from Kennedy’s neck and a bullet removed from a wounded victim had come from Sirhan’s gun. But he did not submit any photos comparing the two bullets or keep any notes documenting his comparison, and the defense accepted his testimony without challenge. In 1970, when ballistics expert William Harper examined the bullets with a newly invented comparison camera, he found the bullets had not been fired from the same gun.

Soon two other ballistics experts also said the two bullets came from different guns. In 1975, a commission of seven experts was empaneled to review the ballistics, including refiring Sirhan’s gun. But Sirhan’s gun had deteriorated, and it couldn’t be determined whether it had fired either the Kennedy bullet or the wounded victim’s bullet. Later, it was determined that the bullet police submitted for the 1975 test as the Kennedy bullet was from another victim, not Kennedy.

If police had followed a trail of bullets from behind Kennedy’s right side, the person who was standing closest to him was an armed private-security guard, Thane Eugene Cesar. Cesar said he fell down as the shooting began, then pulled his .38-caliber gun but didn’t fire because Sirhan had already been captured. A news assistant for a local TV station, Don Schulman, gave a radio interview moments after the shooting and described Cesar firing back at Sirhan.

Sirhan Sirhan, third from left in blue, is prevented from shaking the hand of Paul Schrade, near the camera, at the end of a parole hearing in 2016. Schrade apologized to Sirhan for not coming forward sooner. Sirhan was denied parole for the 15th time. Schrade believes Sirhan shot him and four others but not Sen. Robert F. Kennedy. (AP/Gregory Bull)

But Los Angeles police did not check Cesar’s gun, records show. When he showed them a .22-caliber revolver similar to Sirhan’s, the police didn’t check that gun either. Cesar was never a suspect for the police and always maintained his innocence. Prosecutors never called him as a witness, even though he was one of those standing closest to Kennedy. Journalist Dan Moldea hired a top polygraph examiner to question Cesar in 1994, and Moldea said Cesar was found truthful. He lives today in the Philippines. His .22-caliber revolver has been found but never tested for comparison to the Kennedy bullet.

Another angle the police were disinclined to follow was the “girl in the polka-dot dress.” Numerous people in the pantry spotted her standing with Sirhan, consistently describing her as “shapely” or “proportionate,” in a white dress with black dots. Most notable of these witnesses was Sandra Serrano, who gave an interview to NBC’s Sander Vanocur an hour after the shooting describing the woman, and a man, running out of the hotel saying, “We shot Kennedy.” But records show an aggressive and demeaning polygraph interview given by an LAPD examiner caused Serrano to change her story. [“Nobody told you ‘We have shot Kennedy,'” Lt. Enrique Hernandez told Serrano, recordings show. “Sandy, you know that this is wrong . . . This didn’t happen.”] Serrano later returned to her original story. John Fahey, a man who spoke to police during their investigation, had said he spent the day of the election with a woman in a polka-dot dress who told him, “They’re gonna take care of Kennedy tonight.” But police interrogators told him, “These answers will have to be changed,” and eventually Fahey equivocated and his account was dismissed, according to Shane O’Sullivan’s book “Who Killed Bobby?”.

An older couple told Sgt. Paul Sharaga about the man and the woman in the polka-dot dress and also heard the “We shot Kennedy” remark. Sharaga broadcast a lookout for the pair, only to have it canceled 90 minutes later. Recordings show that an LAPD inspector told Sharaga over the radio that one man was in custody, and police “don’t want them to get anything started on a big conspiracy.”

Twenty years later, when the case records were released, Sharaga said the LAPD report on his action was “phony,” because it said the couple reported the girl saying, “They shot Kennedy” instead of “We shot Kennedy.” Sharaga told author William Klaber: “This is just how things were done. If they couldn’t get you to change your story, they’d ignore you. If they couldn’t ignore you, they’d discredit you, and if they couldn’t do that, they’d just make something up.”

The burial of Sen. Robert F. Kennedy in Arlington National Cemetery on June 8, 1968. (AP)

READ MORE AT THE WASHINGTON POST

by Tom Jackman June 4 at 12:20 PM

Sirhan Sirhan is led away from the Ambassador Hotel in Los Angeles moments after the shooting of Robert F. Kennedy on June 5, 1968. Some believe Sirhan was hypnotized to be present as a distraction from a second gunman. (Bettman/Getty)

Even as Sirhan Sirhan was being captured, seconds after the shooting of Sen. Robert F. Kennedy in Los Angeles, he behaved oddly. A group of men had tackled him, held him down and tried to wrest the gun out of his hands. But “in the middle of a hurricane of sound and feeling,” wrote one of those men, author George Plimpton, Sirhan “seemed peaceful.” Plimpton was struck by Sirhan’s “dark brown and enormously peaceful eyes.” A Los Angeles police officer who had rushed in recalled, “He had a blank, glassed-over look on his face — like he wasn’t in complete control of his mind.”

At the same time, the short, slim Sirhan — 5 feet 5 inches, about 120 pounds — exerted superhuman strength as one man held his wrist to a steam table in the Ambassador Hotel pantry, firing off five or six more shots even as he was held around the neck, body and legs by other men, witnesses said. It took a half-dozen men to wrench the .22-caliber pistol out of Sirhan’s grip.

At the police station, Sirhan was preternaturally calm, officers later said. “I was impressed by Sirhan’s composure and relaxation,” Sgt. William Jordan wrote in a report later that morning. “He appeared less upset to me than individuals arrested for a traffic violation.”

Sirhan’s behavior, combined with his consistent claim that he remembers everything about June 5, 1968, except the moment of the shooting, led some people to suspect that Sirhan was under hypnosis when he fired at Kennedy. His defense team explored that angle before his trial, finding that he was easily hypnotized and could be induced to do things without knowing why, such as climb the bars of his cell. The lawyers chose to use a diminished mental capacity defense instead.

Sen. Robert F. Kennedy speaks to campaign workers at the Ambassador Hotel in Los Angeles on June 5, 1968. After making a short speech, Kennedy was fatally shot in an adjacent pantry. (AP)

But the hypnosis angle gained momentum in recent years after Sirhan was examined for more than 60 hours by a Harvard Medical School professor with vast expertise in forensic psychiatry and hypnosis. In a lengthy affidavit filed with Sirhan’s last appeal in 2011, Daniel P. Brown concluded that “Mr. Sirhan did not act under his own volition and knowledge at the time of the assassination and is not responsible for actions coerced and/or carried out by others.” He was, Brown said, a true “Manchurian Candidate,” hypno-programmed into carrying out a violent political act without knowing it.

[Who killed Bobby Kennedy? His son RFK Jr. doesn’t believe it was Sirhan Sirhan.]

“I have written four textbooks on hypnosis,” Brown wrote, “and have hypnotized over 6,000 individuals over a 40-year professional career. Mr. Sirhan is one of the most hypnotizable individuals I have ever met, and the magnitude of his amnesia for actions under hypnosis is extreme.” Brown said he has spent another 60 hours with Sirhan in the years since his 2011 affidavit, further confirming his conclusions.

Brown researched not only Sirhan’s background but also the details of the case, and wove together the CIA’s notorious “MKUltra” mind-control experiments of the 1950s and 1960s; the Mafia; the famed “girl in the polka-dot dress” seen with Sirhan before the shooting; and an unknown “Radio Man” who secretly directed Sirhan to write the incriminating “RFK must die!” statements in a notebook found in his bedroom.

[From 1977: CIA papers detail secret experiments on behavior control]

To some, including Sirhan’s current lawyers, Brown’s theory explains why a mild-mannered Palestinian immigrant with no criminal history suddenly showed up at a hotel and shot one of the United States’ leading political lights. To others, it’s reflective of the United States’ thirst for conspiracies, for a belief in a larger, more complex narrative to explain a cataclysmic tragedy, when a simple plotline will suffice.

Lawyers for Sirhan are currently using the theory that he was a hypnotized distraction for the actual killer of Kennedy in a pending appeal to the Inter-American Commission on Human Rights. Although it would have no binding power over the case, a positive finding could be used to push California authorities to reopen the case. Sirhan attorney William Pepper said he’s convinced that someone used “both drugs and hypnosis to make him a totally compliant distraction at the time Bobby Kennedy was within range of the second shooter, who was able to get down behind him.” Kennedy’s fatal wound was fired at point-blank range from behind, while witnesses said Sirhan was in front of him.

But to the U.S. court system, that claim simply didn’t fly. In rejecting Sirhan’s final federal appeal in 2013, U.S. Magistrate Judge Andrew J. Wistrich wrote that Sirhan’s “theory that he was subject to mind control may be intriguing” but that the experts’ views “fall far short of demonstrating that [Sirhan] actually was subjected to mind control.” Wistrich added that “Brown’s retrospective opinion based upon tests assessing [Sirhan’s] mental condition forty years after the fact are of negligible weight.”

Prosecutors noted that many psychological experts believe that a person cannot be hypnotized to do something against their will. But others disagree, and some believe that Sirhan may have been programmed to think he was shooting at a target range, rather than at a human target.

Daniel P. Brown, an associate professor of psychology at Harvard Medical School, interviewed Sirhan Sirhan for more than 60 hours and said he believes he was hypnotized and manipulated into being present at the assassination of Robert F. Kennedy. (Alex Prideaux)

Alan Scheflin, an expert on mind and behavior control and a former law and philosophy professor at Georgetown University, said that “the word hypnosis, like mind control and brainwashing, has a public stigma.” People are skeptical of what can appear like a magician’s trick, he said.

But Scheflin examined the CIA’s mind experiments in detail in his book “The Mind Manipulators” and found that the agency did have a project designed to create hypnotized subjects “for purposes of assassination.” And, Scheflin said, “the CIA experiments showed that was possible. Hypnotized people were ordered to do things they otherwise would not do, such as rip up a Bible or fire a gun at somebody they otherwise wouldn’t. In every instance, they got the results.”

Sirhan had a fascination with hypnosis before the assassination but said he could not remember anyone hypnotizing him to perform devious acts. In recordings of his conversations with defense lawyers and psychiatrists in 1968, released by authors Robert Blair Kaiser and William Klaber, he expresses bafflement that he shot Kennedy but realizes he was captured at the scene with a gun. He also doesn’t recall writing in notebooks, repeatedly, that “RFK Must Die!,” though he acknowledges it appears to be his handwriting.

“That’s what I don’t understand,” Sirhan told one psychiatrist. “If I had wanted to kill a man, why would I have shot him right there where they could have choked the … out of me.” He also noted that he was a Christian and that “my own conscience doesn’t agree with what I did. It’s against my upbringing. … ‘Thou shalt not kill.’ Life is the thing, you know. Where would you be if you didn’t have life? And here I go and splatter this guy’s brains. It’s just not me.”

Mel Ayton, author of “The Forgotten Terrorist,” about Sirhan, said, “The evidence presented during the 1969 trial revealed how Sirhan was fully aware of everything around him on the night he killed Robert Kennedy and that no credible evidence has ever been discovered that would indicate Sirhan’s actions were the product of a hypnotized mind.” He said Sirhan’s previous knowledge of hypnosis enabled him to construct a story that featured convenient memory loss about the shooting and his notebooks.

“Ignoring Sirhan’s numerous lies that he told his lawyers and writer Robert Blair Kaiser,” Ayton said, “conspiracists prefer instead to take Sirhan at his word.”

Sirhan Sirhan at a parole hearing in 2016 in San Diego, where he was denied parole for the 15th time in the slaying of Sen. Robert F. Kennedy. (Gregory Bull/Pool/AP)

Brown remains adamant that Sirhan was a victim of a larger scheme, put in place as a distraction while a second gunman fired the fatal shots to Kennedy. And in his four-hour interviews with Sirhan between 2008 and 2010, Brown said Sirhan would suddenly switch into “a military-like alter personality state,” which he called “range mode,” for recalling times when he was shooting at a firing range.

But who would have programmed Sirhan Sirhan in such a way that he would be present at the Ambassador Hotel when Kennedy was giving his victory speech after the California primary, and who would have supplied a second gunman to perform the killing? Brown developed a theory inspired by the real-life shenanigans of the CIA.

Beginning in 1949, as the Cold War was heating up, the CIA under Allen Dulles launched a project called “Bluebird,” later called “Artichoke” and then “Project MKUltra,” a series of experiments on unwitting people to see if their minds could be manipulated by drugs, torture or hypnosis. Colleges, hospitals, prisons and pharmaceutical companies participated in the project, records revealed in the 1970s showed, with the CIA hoping to be able to manipulate foreign leaders and other important figures, or program others to commit acts of espionage. In Canada, some subjects were kidnapped off the street, and in the United States, some people died of drug overdoses, the CIA later admitted. LSD was administered to some subjects, and professors at Stanford and UCLA participated in MKUltra, records show.

[Lengthy mind control research by CIA is detailed]

In 1966, Sirhan Sirhan was 22 years old and living in Pasadena, Calif., with his mother and brothers. He was not particularly political or ambitious, his family has said. He was traumatized by the death of his sister from leukemia, Brown said in an interview, and turned to hypnosis as a way to explore life after death. He worked at the Santa Anita horse track as a stable boy, walking but not riding horses, hoping to become a jockey. Sirhan also dabbled in shortwave radio and had a set in his room at home.

Brown found that Sirhan was recruited by the operator of a private ranch for thoroughbreds to ride horses there, even though Sirhan had little experience riding. Before long, Sirhan had suffered a couple of falls that required hospitalization. His family reported that after those incidents, Sirhan seemed to have changed.

But after interviewing Sirhan, Brown believes that Sirhan was drugged and taken to a secret location for mind-control experiments such as those performed under the CIA’s auspices. Sirhan and his family both reported that he was gone for two weeks after one of the falls, though Brown said hospital records showed he was released after one day. Sirhan told Brown he was held in a room with bars on the windows and recalled being disoriented and floating in and out of consciousness, sleeping frequently.

“Mr. Sirhan doesn’t describe typical post-concussive symptoms,” Brown wrote in 2011, “but rather symptoms consistent with drug intoxication. … Sirhan’s spotty memory gives the impression of someone who was drugged, treated for superficial wounds at the emergency room, and then possibly taken to a special, experimental unit where his and other patients’ responses to drug and hypnotic programming were observed.”

Brown said that the ranch operator had ties to the mafia and that the mafia in turn had links to the CIA from their work together attempting to kill Cuba’s Fidel Castro. Then, in Pasadena, Sirhan met “Radio Man,” a man who shared Sirhan’s interest in shortwave radios. Brown believes Radio Man used “waking coercive persuasion” and “possibly hypnosis” to control Sirhan. Brown wrote that the “statements about killing RFK written in Mr. Sirhan’s spiral notebooks,” which Sirhan did not remember writing, “were written by Mr. Sirhan in a hypnotic state and while communicating with a third party over his shortwave radio, and thus were coercively and involuntarily induced.”

Over the next two years, Sirhan began visiting a firing range not far from the ranch, sometimes with guidance from Radio Man on how to shoot targets, Brown said. He spent hours at the range on the day of the killing. Brown said much of what Sirhan recalled in their conversations was independently confirmed.

On the night of the assassination, Sirhan has described going to the Ambassador to attend a different political victory party, drinking too much and returning to his car. Not feeling well enough to drive, he reportedly returned to the hotel looking for coffee, and an attractive woman in a polka-dot dress led him to a coffee urn near the pantry of the hotel, and then into the pantry. Sirhan has said he remembers gazing at the attractive woman, who was noticed by many other witnesses in the pantry, and the next thing he remembers is being pummeled by the men who captured him.

In an adaptation from their new book, “The Assassination of Robert F. Kennedy,” authors Tim Tate and Brad Johnson say they believe they identified the woman in the polka-dot dress as Elayn Neal and that her husband claimed to have worked for the CIA in mind-control experiments. Neal died in 2012, the husband years earlier. Author Shane O’Sullivan reported the same details in the reissue of his book, “Who Killed Bobby?,” and noted Neal did not marry the alleged CIA man until 1973.

Johnson said he learned additional details about Neal after the deadline for his book. He said a reliable source reported that Neal and her husband actually met in 1967 and, by June 1968, appeared to be having an affair. Neal’s own first marriage ended in October 1968.

If someone was controlling Sirhan, how did they get him to the Ambassador at the right place and time? Brown said he believes Radio Man could have signaled Sirhan to return to the hotel with the gun, as the CIA mind-control project was experimenting with such commands.

In the pantry, Sirhan told Brown, he was trying to think of a way of seducing the attractive woman in the polka-dot dress. “I think she had her hand on me,” Sirhan said. “Then I was at the target range. A flashback to the shooting range. … It was like I was at the range again. I think I shot one or two shots. Then I snapped out of it and thought, ‘I’m not at the range, then what is going on?’ Then they started grabbing me … later when I saw the female judge I knew that Bobby Kennedy was shot and I was the shooter, but it doesn’t come into my memory.”

Sirhan admitted at trial in 1969 that he killed Kennedy, though he said then he didn’t remember it. His defense team didn’t learn until midway through the trial that Kennedy’s fatal shots had been from behind. He was convicted of first-degree murder and is serving a life sentence. For years, Sirhan was skeptical of the hypnosis claim, and he did not respond to The Washington Post’s questions about it. In 1994, he told journalist Dan Moldea, “It’s probably too diabolical to suggest that I was controlled by someone else — but I don’t know. I only know that I don’t remember anything about the shooting.”

Brown wrote that Sirhan entering “range mode” in the pantry “suggests that his action of firing the gun was neither under his voluntary control nor done with conscious knowledge, and is likely a product of automatic post-hypnotic behavior and coercive control.”

California attorneys general argued that “Brown’s conclusions are clearly speculative and necessarily depend on the veracity of [Sirhan’s] story,” and that “Brown completely ignored the vast amount of evidence presented at trial, which contradicted [Sirhan’s] self-serving ‘recall’ of the events and proved that he intentionally killed Senator Kennedy.”

Wistrich, the judge, agreed. “Whether or not the theory that a person can be hypnotized to commit murder,” Wistrich wrote, “and then to lose his memory of committing that murder is scientifically credible … [Sirhan] has not provided any reliable evidence that this actually occurred.”

Note: This story has been updated with additional information about the “polka-dot dress girl.”

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