In re Pratt, 170 Cal.Rptr. 80, 112 Cal.App.3d 795 (Cal.App. 2 Dist.1980)
*801 **81 Stuart Hanlon, Margaret Ryan, San Francisco, John B. Mitchell, Lewis Myers, Fred Okrand, Mark Rosenbaum, Los Angeles, Leonard I. Weinglass, Newark, N. J., Victor Goode, Jonathan Lubell, New York City, and Paul N. McCloskey, Jr., Palo Alto, for petitioner.
Laurence R. Sperber, Los Angeles, for amici curiae (see fn. 2, infra ) on behalf of petitioner.
**82 George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Michael Nash, Deputy Attys. Gen., for respondent.
L. THAXTON HANSON, Associate Justice.
INTRODUCTION
In 1972 following a protracted trial a jury convicted petitioner/defendant Elmer Gerard Pratt (hereinafter defendant and/or Pratt) of the *802 murder in the first degree (Pen.Code, s 187) of Caroline Olsen in Santa Monica on December 18, 1968 (known as the "tennis court murder"); of two counts of robbery in the first degree (Pen.Code, s 211); and of assault with intent to commit murder on Kenneth Olsen (Pen.Code, s 217). The jury also found he was armed with a deadly weapon (pistol) in connection with each offense. The judgment of conviction was affirmed on appeal by Division Four of this District in an unpublished opinion (2 Crim. No. 22504). The California State Supreme Court unanimously denied defendant's petition for a hearing.
Defendant Pratt is presently serving a life sentence in state prison for the murder of Caroline Olsen and the commission of the other crimes of which he was convicted. By this petition for writ of habeas corpus he seeks his release from prison essentially on the grounds that the Federal Bureau of Investigation (FBI) reports obtained through the Freedom of Information (FOI) Act disclose that key prosecution witness Julius C. Butler during the trial in 1972 "was informing to the (FBI), a fact he denied, under oath, at petitioner's original trial," that "the FBI concealed and withheld surveillance evidence corroborative, in part, of (defendant's) alibi defense"; and that the FBI "had a spy in the defense camp" during the trial.
By reason of the extremely serious allegation by current defense counsel (a) that "a totally innocent man has languished in the San Quentin and Folsom prisons since mid-1972, and that ... he was sent there as the result of a case which was deliberately contrived by agents of our state and federal governments " (pet. for writ of habeas corpus filed in the Super. Ct. of Los Angeles County which has been incorporated by reference with the pet. for writ of habeas corpus filed with this court); and (b) that the assertion in the petition for writ of habeas corpus lodged in this court that defendant Pratt's "conviction was the result of a joint effort by state and federal governments to neutralize and discredit him because of his membership in the militant (Black Panther Party) " which committed "a fraud upon the court and jury ", we have ordered up, pursuant to California Rules of Court, rule 60, for review along with the extensive record of the petition before this court the entire record of the 1972 jury trial, including pertinent exhibits, and the record of the petition for writ of habeas corpus previously filed in the superior court which was denied. (See also Cal. Rules of Court, rule 12(a).)
*803 In addition to the foregoing and by reason of the nature of these proceedings; the public interest generated by persons or groups seeking to obtain defendant Pratt's release from prison as evidenced by newspaper articles; the personal involvement of United States Congressman Paul N. McCloskey, Jr., 12th District of California; [n. 1] the large list of individuals and organizations appearing as Amici Curiae [n. 2] on behalf **83 of defendant Pratt; and the accusation by defense counsel that a court of this state was "implicated" in the "cover up" of the "framing" of Pratt (see fn. 5, infra ), a more detailed treatment than usual of the series of events leading up to this proceeding, the trial evidence, and an analysis of the FBI documents supplied this court is deemed necessary in order to place the entire case in proper perspective.
n. 1. Congressman McCloskey joined the defense team of lawyers and appeared for the first time as an attorney of record (in a private capacity and not in his official capacity as a member of Congress) during oral argument before this court on August 26, 1980, and argued on behalf of petitioner/defendant Pratt.
n. 2. Following is the list of individuals and organizations who are Amici Curiae on behalf of defendant Pratt and who are represented by attorney Laurence R. Sperber:
James Burford, Chair, Coalition to Free Geronimo Pratt, Vice President, A.C.L.U. of Southern California
Wallace Albertson, President, California Democratic Council
Rabbi Leonard Beerman, Leo Baeck Temple
Catherine Bodenstein, Community Activist
Reverend Dr. George W. Cole, Coordinator, Social and Ecumenical Concerns Commission, Synod of Southern California United Presbyterian Church
Leo Branton, Attorney
Willie Brown, Jr., California State Assembly, 17th A.D.
Reverend Edgar Edwards, Immanuel United Church of Christ
Hillard Ham, President, Ham Publications
Reverend Wilbur Johnson, Executive Director, Interdenominational Ministerial Alliance
Reverend Dr. Thomas Kilgore, Jr., Second Baptist Church
Reverend James Lawson, Jr., Holman United Methodist Church
Leonard Levy, Vice President, West Coast Joint Board, Amalgamated Clothing and Textile Workers Union
Reverend Stanley Lewis, Pastor, Friendship Baptist Church
Gwen Moore, California State Assembly, 49th A.D.
Reverend Cecil Murray, Pastor, First A.M.E. Church
National La Raza Legal Alliance
R. Samuel Paz, Vice President, Mexican-American Bar Assn.
Sam Rosenwein, Member of Bar of United States Supreme Court and New York
Shockley, Duff & Hart-Nibbrig, Attorneys
Maxine Waters, California State Assembly, 48th A.D.
Diane Watson, California State Senate, 30th S.D.
Don Wheeldin, Orange Heights Neighborhood Association
CHRONOLOGY OF EVENTS
In order to render the great mass of evidence and the court actions contained in the very extensive record more manageable and understandable, interspersed below in chronological order are the key out-of-court events which triggered subsequent governmental or defense actions and the court actions resulting therefrom.
On December 18, 1968, at about 8 o'clock in the evening Kenneth Olsen and his wife Caroline Olsen, who was also a schoolteacher, went *804 to the Lincoln Park Tennis Courts in Santa Monica to play tennis. After they had put money into the light meter and turned on the lights, they were accosted by two armed black males who ordered them to lie face down on the pavement. They were relieved of their valuables which were on a nearby bench and then the gunmen turned and from a distance of 8 to 10 feet opened fire upon the Olsens as they lay helpless, face down, on the tennis court pavement. Caroline Olsen subsequently died as a result of two gunshot wounds which she received. [n. 3] Kenneth Olsen was hit five times and although he bled profusely, he survived the ordeal. [n. 4]
n. 3. According to the coroner's autopsy report, one bullet passed through Caroline Olsen's left kidney, the liver, the tissues surrounding the pancreas and the stomach exiting the abdomen. The other bullet entered the upper portion of her left buttock and passed through the pelvis area, the bowels and the liver exiting through the abdomen. She died of internal hemorrhaging and peritonitis due to the gunshot wounds.
n. 4. The five bullets fired at Kenneth Olsen struck him once in the head, in the forearm, in the hip and twice in the hand.
Three expended .45 caliber automatic pistol shell casings and three lead slugs (one underneath Mrs. Olsen) found at the scene of the crime by Officer Richard Plasse of the Santa Monica Police Department were marked and booked into evidence. A slug was also removed from Mrs. Olsen's body in the emergency room at the hospital and booked into evidence.
On January 17, 1969, at about 2 o'clock in the afternoon (about one month after the "tennis court murder" in Santa Monica) Al Prentice ("Bunchy") Carter and John Huggins, officers in the Black Panther Party (BPP), were shot to death in the cafeteria at Campbell Hall on the U.C.L.A. campus. The killings occurred during a joint meeting of about 400 members of the Black Student Union (BSU) and members of the BPP and another rival black militant group called United Slaves (US) incorporated. There was a lot of friction between the Black **84 Panthers and US to take over the BSU and the assassinations of Carter and Huggins were attributed to the US organization.
James F. Naveau, a state police officer assigned to the U.C.L.A. campus with the job of penetrating subversive militant groups on campus, infiltrated and became a member of the Students for a Democratic Society (SDS) and was also a member of the Friends of the BPP.
Officer Naveau testified at a subsequent defense motion to suppress as evidence (pursuant to Pen.Code, s 1538.5) the .45 caliber automatic *805 pistol later determined to be the murder weapon in the Olsen case. He said that "there was a lot of friction between the Black Panthers and the US to take over the black student union." Officer Naveau went to Campbell Hall when he heard of the killings and met a Joe Brown who said: "They just blew up two of my brothers." When asked "who", Joe Brown said: "US". Joe Brown told him (Officer Naveau) that other Panthers "had split to go to John's (John Huggins') pad to get the shit (weapons or explosives) and a lot of US people and a lot of L.A.P.D. pigs were going to get blown up that night." Officer Naveau knew John Huggins' address was 806 Century Boulevard in Los Angeles. He immediately communicated this information to his immediate supervisor of the campus police (Captain Lynn) and to Sergeant Davis of the L.A.P.D. Intelligence Division as well as Jim Clark of the state C.I.I.
Officer Lloyd R. Lucy of the L.A.P.D., according to his testimony at the hearing of the defendant's pretrial motion to suppress the murder weapon, testified that after he had received the information from Officer Naveau he and other L.A.P.D. officers in order to prevent bloodshed proceeded to the Huggins residence at 806 West Century Boulevard where they observed Melvin Carl Smith and Lujuana Campbell emerge carrying a rifle and a metal-type military ammunition box to a car. This car was stopped by the police shortly after it departed the area, Lujuana Campbell had a loaded .45 caliber automatic pistol in the waistband of her capris, and there was a .30 caliber rifle, ammunition, camping gear, gas masks and medical supplies found in the car. Defendant Pratt was arrested while crouching behind a station wagon parked in the driveway outside the building. Pratt was unarmed. However, a large arsenal of weapons was found inside the location including an M-1 Garand rifle, Browning automatic shotgun, J. C. Higgins shotgun, 7.65 millimeter pistol, three .45 caliber automatic pistols, three knives and a bayonet.
One loaded .45 caliber automatic pistol found by Officer Jim Finn on a table adjacent to a second floor window overlooking the front of the premises was later determined by a ballistic expert to be the weapon used in the "tennis court murder" of Caroline Olsen on December 18, 1968. (See trial evidence infra.)
On August 10, 1969 (about seven months and three weeks after the "tennis court murder"), Julius Carl Butler, also known as "Julio", met with Sergeant Duwayne Rice, a black officer of the 77th Division of the *806 L.A.P.D., whom he knew socially and trusted as a friend and handed Rice a sealed envelope. When Butler handed the envelope to Sergeant Rice, he told Rice that he felt there was a contract out on his life, that he may be killed and that if anything happened to him to read it and give it to his mother. The envelope on the outside had written on it "Sgt. Rice" and "Only to be opened in the event of my death." (See infra concerning the circumstances surrounding the writing, sealing and delivery of the envelope to Sergeant Rice.)
Sergeant Rice retained the envelope in his possession unopened for five or six months. Then feeling that he (Sergeant Rice) may also be killed he gave the sealed envelope to Captain Henry, the Commandant of the 77th Division of the L.A.P.D., who kept it in his safe at home unopened.
On October 20, 1970 (over 14 months after Butler handed the letter to Sergeant Rice and over 22 months after the murder of Caroline Olsen), the sealed letter which Butler gave to Sergeant Rice on August 10, 1969, was opened for the first time. Butler therein stated that defendant Pratt had **85 confessed and bragged to him about being the "tennis court murderer". (See infra concerning the circumstances surrounding the opening of the envelope.)
The information contained in the letter inside the envelope was what caused law enforcement investigators for the first time to focus on Pratt as being involved in the December 18, 1968, "tennis court murder" of Caroline Olsen.
(The letter itself was not submitted to the trial jury as evidence but the circumstances surrounding the delivery, safekeeping and then opening of the letter were explained to the jury. Butler, who wrote the letter, testified before the grand jury and at the trial. He was also cross-examined in depth by defense counsel, during the trial, concerning defendant Pratt's confession to him. The letter itself is a part of the record of these proceedings. A typed copy of the letter is attached as APPENDIX A.)
On December 4, 1970, following intensive investigation by detectives an indictment was returned by the grand jury of Los Angeles County charging Pratt with one count of murder, one count of assault to commit murder and two counts of robbery arising out of the December 18, 1968, "tennis court" crimes.
*807 On April 8, 1971, defendant Pratt was arraigned and pleaded not guilty.
On July 28, 1972, following a hotly contested jury trial which began on June 11, 1972, in the superior court, Hon. Kathleen Parker, Judge Presiding, defendant Pratt, represented by Johnnie L. Cochran, Jr., and Charles Hollopeter, was found guilty on all counts and the degree was determined to be first degree as to the murder count and as to each of the robbery counts.
On August 28, 1972, defendant's motion for a new trial was denied and he was sentenced to state prison for the term of life as to the murder count and for the term prescribed by law as to the other three counts to run concurrently with the life sentence.
On August 28, 1972, defendant filed a timely notice of appeal from the judgment of conviction.
On February 1, 1974, Division Four, Second Appellate District, with Acting Presiding Justice Edwin Jefferson and Justices Gerald Dunn and Robert Kingsley constituting the panel, filed its unpublished opinion (2 Crim. No. 22504) which unanimously affirmed the judgment of conviction. This opinion, heretofore, unpublished, is attached hereto as APPENDIX B.
On April 17, 1974, the California Supreme Court unanimously denied defendant's petition for a hearing.
On November 4, 1974, the United States Supreme Court denied defendant's petition for a writ of certiorari.
On April 23, 1976, the "Final Report" of the "Select Committee to Study Governmental Operations with Respect to Intelligence Activities" to the United States Senate, Senator Frank Church, Chairman (hereinafter for the sake of brevity the Church Committee Report), was published describing the purposes and methods used by the FBI's counterintelligence program (COINTELPRO). The Church Committee Report describes COINTELPRO activities as covert action programs initiated for the purpose of "protecting national security, preventing violence, and maintaining the existing social and political order by 'disrupting' and 'neutralizing' groups and individuals perceived as threats." (P. 5.)
*808 COINTELPRO's activities during the 15-year period it was operational (between 1956 and 1971) were described as being aimed at five targeted groups "perceived (as) threats to domestic tranquility: the 'Communist Party, USA' program (1956-71); the 'Socialist Workers Party' program (1961-69); the 'White Hate Group' program (1964-71); the 'Black Nationalist-Hate Group' program (1967-71); and the 'New Left' program (1968-71)." (P. 4.)
A chapter in the Church Committee Report entitled "The FBI's Covert Action Program to Destroy the Black Panther Party" states that "(i)n August 1967 the FBI initiated **86 a covert action program-COINTELPRO-to disrupt and 'neutralize' organizations which the Bureau characterized as 'Black Nationalist Hate Groups'."
The Church Committee Report states that:
"The Black Panther Party (BPP) was not among the original 'Black Nationalist' targets. In September, 1968, however, FBI Director J. Edgar Hoover described the Panthers as:
'the greatest threat to the internal security of the country'
'Schooled in the Marxist-Leninist ideology and the teaching of Chinese Communist leader Mao Tsetung, its members have perpetrated numerous assaults on police officers and have engaged in violent confrontations with police throughout the country. Leaders and representatives of the Black Panther Party travel extensively all over the United States preaching their gospel of hate and violence not only to ghetto residents, but to students in colleges, universities and high schools as well.'
"By July 1969, the Black Panthers had become the primary focus of the program, and was ultimately the target of 233 of the total 295 authorized 'Black Nationalist' COINTELPRO actions." (Pp. 187-188, fns. omitted.)
The Church Committee Report goes on to say that in the FBI's efforts to "neutralize" and disrupt the BPP's effectiveness various COINTELPRO techniques were used for the purpose of discrediting BPP's members, creating rifts and factions within the Party itself, setting rival groups against the Panthers, undermining support of the Party and destroying its public image because the FBI perceived the BPP to be a heavily armed, violence-prone organization.
*809 On November 20, 1979, defendant Pratt relying on the Church Committee Report and certain FBI documents obtained pursuant to the FOI Act filed a petition for writ of habeas corpus in the Los Angeles superior court which was heard by the Honorable Kathleen Parker (the same judge who had presided over the trial of the case seven years earlier in 1972). The alleged basis for the relief sought was essentially that defendant Pratt had been "framed" by the FBI and state agencies as part of COINTELPRO.
On January 18, 1980, Judge Parker following a four-day hearing denied defendant's motion for a summary judgment, and denied his petition for habeas corpus and his request for an evidentiary hearing stating that she didn't think defendant "by wishful thinking ... can step from one point to another by speculation" and that "an evidentiary hearing at this time would (not) serve any useful purpose" as she didn't "see sufficient evidence that Mr. Pratt was framed and that he did not have a fair trial." [n. 5]
n. 5. The superior court file reflects that defense counsel argued, as before this court, that the prosecution's case was "a close case" and the jury took ten days to deliberate. Judge Parker, who as noted was also the trial judge, disagreed with this analysis and pointed out that the jury did not take an inordinate length of time to arrive at a verdict. The court stated:
"THE COURT: Let me just interrupt you for a minute there.
"I think maybe I can shorten this. I do not agree with the defense this was a weak case.
"Furthermore, the defense says that the jury took ten days. Two and one half days of that time the jury was sitting having testimony read to them.
"The case took a month, approximately, I think maybe a little over, to try.
"They did ask almost immediately to have testimony reread. July-if it was submitted on the 17th, I think it was-I may be incorrect on the date, but I think on the following day they asked, before they had done any deliberations to speak of-
"Yes; the jury retired to deliberate on July 17th, 1972, at 9:55 a. m.
"On July 18th and 19th testimony was reread.
"Then on the 20th, the following day, a juror was excused and was replaced by an alternate juror, which would require further deliberation with all- with a new juror present.
"On July 21st the proceedings were continued to the 24th because there was a weekend. So another two days is out of that ten days.
"So now we have got four and one half days out of that ten days.
"I don't think that the jury in a case of a murder such as this, that you could say that they took a long time to deliberate.
"Furthermore, the first time they came in and the second time they came in the foreman felt there was the possibility of a verdict, in which case of course the Court gave them further time to deliberate, and they did reach a verdict.
"So I don't agree with the defense that this was a close case, number one, and I don't agree with their analysis of the length of time it took the jury to deliberate.
"Now, proceed from there."
We also note that the file reflects that an attempt was made to coerce Judge Parker and that she was subjected to a flood of letters apparently from individuals connected with an organization called "the National Task Force for Cointelpro Litigation and Research" and "Committee for the Suit against Government Misconduct" demanding that she immediately release Elmer "Geronimo" Pratt from prison. Forty (40) of the letters are identical in typed content.* All are signed but many do not have return addresses and most of the envelopes bear a New York, New York, postmark while nine (9) show a postmark from Springfield, Massachusetts, and several from each of the cities of San Francisco or Fresno, California, and Chicago, Illinois. In addition a cable from Amnesty's international headquarters in London urged defendant Pratt be granted a new trial because Pratt was the target of COINTELPRO which was unknown at the time of the trial.
* Following is a copy of the contents of the forty (40) letters addressed to Judge Kathleen Parker:
"January 6, 1980
"Honorable Kathleen Parker
"Los Angeles Superior Court
"111 N. Hill
"Los Angeles, California 90012
"(P) Dear Judge Parker:
"(P) I am familiar with the case of Elmer Geronimo Pratt and am convinced that he is innocent of all charges against him. (P) As more evidence is revealed everyday, unequivocably proving Geronimo Pratt's innocence, his continued imprisonment is an outrageous affront to Mr. Pratt's human rights. (P) The National Task Force for Cointelpro Litigation and Research has worked for years to uncover the conspiracy which has caused Mr. Pratt to be held illegally for 9 years, much of it in solitary confinement. Now the evidence is clear and there is no justification for continuing his imprisonment. (P) Therefore, I demand the immediate release of Elmer
Geronimo Pratt from prison.
"Sincerely,
/s/ Joe Hamill
"84 6th Ave.
"Bklyn NY 11217
"cc: Ms. Ashaki Pratt
"c/o Stuart Hanlon, Esq.
"294 Page Street
"San Francisco, California 94102"
We further note that following Judge Parker's denial of relief defense counsel accused the court of being implicated in a "cover up" of the "framing" of Pratt by the prosecution and the state. The following statement by defense counsel appears in the reporter's transcript:
"MR. HANLON (defense counsel): I would submit too, Your Honor, that this case has been since its inception a coverup. What the Court has just said has implicated itself in this coverup.
"That the Court is the only-
"(Clapping in audience.)
"MR. HANLON: -the Court is the only thing in this system of law that separates the prosecution, the state, from framing people. It is what separated Watergate from having to become more of a national disgrace than it was.
"And the people turn to the courts to keep the government in line.
"And this Court has said we will not deal with it, we will side with the state. And that makes this Court part of the coverup.
"And the record should reflect that. That this is our opinion-or this is my own opinion as to the action of this Court."
*810 **87 On April 10, 1980, defendant Pratt filed the instant petition for writ of habeas corpus in this court of appeal. He does not seek review of the superior court's denial of relief but rather seeks review by way of an original proceeding in this court.
*811 THE EVIDENCE AT TRIAL
Following is a brief summary of some key evidence, direct and circumstantial, contained in over 1,500 pages of the reporter's transcript of the pretrial hearing and the jury trial in 1972.
The Prosecution's Case
EYEWITNESS IDENTIFICATION OF PRATT:
Victim Kenneth Olsen, who survived five gunshot wounds, on two separate occasions made a positive in-court identification of Pratt as one of the two male black gunmen who robbed him and his wife, murdered his wife Caroline and then attempted to murder him. The first in-court positive identification of defendant was made during the **88 pretrial hearing on defendant's motion to suppress Mr. Olsen's identification testimony [n. 6] and the second in-court positive identification was made *812 during the jury trial. [n. 7]
n. 6. Following are the pertinent portions of Mr. Olsen's testimony during the pretrial hearing when he made the first positive in-court identification of defendant as the person who robbed him and his wife and shot him and murdered his wife on December 18, 1968:
"DIRECT EXAMINATION
"BY MR. KALUSTIAN (deputy district attorney):
"Q Mr. Olsen, on December 18th, 1968, were you at the Lincoln Park tennis courts in Santa Monica?
"A Yes, I was.
"Q Do you recall the approximate time?
"A About 8 p. m.
"Q Is that approximate?
"A Yes.
"Q Were you accosted by two male blacks?
"A Yes, I was.
"Q Do you see either one of those two gentlemen in court today?
"A Yes, I do.
"Q Would you point the gentleman out and describe him if you will?
"A The gentleman sitting next to Mr. Hollopeter.
"Q The gentleman here (indicating)?
"A Yes.
"MR. KALUSTIAN: May the record reflect I have my hand over Mr. Pratt.
"THE COURT: Yes, the record may so indicate.
"Q BY MR. KALUSTIAN: Sometime before the Grand Jury hearing on this matter in late 1970 were you shown some photographs of individuals by Sergeant Callahan and Sergeant Buckles, and perhaps Sergeant Eckstein?
"A Detective Eckstein.
"Q At that time did you select an individual whom you believed to be one of the perpetrators of the crime against you on December 18th, 1968?
"A Yes, I did.
"Q Of the two blacks who accosted you on the tennis court in Santa Monica, do you recall whether one was taller or shorter than the other, or there was a height difference?
"A There was a height difference.
"Q One was taller and one was shorter; is that correct?
"A That's correct.
"Q Which gentleman was Mr. Pratt?
"A The shorter.
"...
"CROSS-EXAMINATION
"Q So you are now identifying Mr. Pratt in court as being the same person depicted in Defendant's A; is that right?
"A Yes.
"Q It's the same man on that picture, isn't it?
"A Yes.
"Q As far as you can tell?
"A Yes.
"Q Now, as you look at him today, is there anything about looking at this man that you recall independent of the photograph from December of 1968?
"A Yes; his eyes.
"Q What do you notice about his eyes, without looking at him?
"A It's-it just looks like the man on the tennis court. That is the man.
"Q You said his eyes. What did you notice about his eyes?
"A Well, they are fairly small, and they are quite bright and intense.
"Q Small, bright, intense eyes?
"A Yes.
"...
"Q You told us that the man that you saw on that date had either a beard or a moustache; is that correct?
"A That's correct.
"Q Did he have sideburns?
"A If so, very short.
"...
"Q Approximately how long did you see this individual involved in this attack upon you in December of 1968, from the start to the finish? About how long did the incident take, sir?
"A Well, no more than five minutes, I would say.
"Q What was the closest this individual, the shorter of the two men, got to you during that period of time, sir?
"A Probably about as close as the court clerk is.
"Q Perhaps within three or four feet then?
"A Yes.
"Q And it was dark at that time, was it not?
"A No. The tennis court was well lit.
"...
"Q Would it be a fair statement to say that your memory of the events which transpired in December of 1968 is somewhat vague or hazy at this time?
"A No, it is very vivid. I don't remember jackets, but it is very vivid.
"Q With your vivid memory can you tell us what kind of jacket this man had on in December of 1968?
"A I wasn't noticing a jacket with a gun in my face.
"Q So your answer is you can't recall; is that right?
"A I can't recall. I know he was wearing a jacket. I can't tell you-I believe it was a light color. It could have been beige or light gray.
"THE COURT: May I ask one question, Mr. Olsen.
"You have identified the defendant in court here today. Is your identification today a positive identification, or do you still have the same feeling that you had when you selected the picture and when you selected someone from the lineup ?
"THE WITNESS: I feel it is a positive identification.
"THE COURT: You feel today it is a positive identification ?
"THE WITNESS: Yes, ma'am.
"THE COURT: Is there anything about the defendant that makes you feel that you are sure that this is the man, anything else ?
"THE WITNESS: I thought at the time that I would remember him if I ever saw him in person again.
"..." (Italics added.)
n. 7. Victim Kenneth Olsen testified under direct examination at time of the jury trial as follows:
"Q What was the first thing that was said by either of them?
"A I don't recall the exact words, but it was something to the effect of, 'Yeah, man, this is a stickup. We want your bread, or we're going to burn you. Come on, put your hands up.'
"Q Do you recall the word 'burn'?
"A Yes.
"Q At that time did you notice they both had guns?
"A Yes.
"Q Do you see anybody in court who was one of those people?
"A Yes, I do.
"Q Would you so indicate, please.
"A Yes. The man sitting next to Mr. Cochran.
"Q The gentleman I have my hand over.
"A That's correct.
"MR. KALUSTIAN: May the record reflect that I have my hand over Mr. Pratt?
"THE COURT: The record may so indicate.
"Q BY MR. KALUSTIAN: Who was doing the talking, Mr. Pratt or the other guy?
"A Mr. Pratt.
"...
"Q BY MR. KALUSTIAN: Okay. Now, you have indicated that they came up to you and indicated that they wanted your money or they'd burn you; is that right?
"A That's correct.
"Q What was said next?
"A Then there was-Pratt said, 'The lights, the lights. Get the lights off.'
"Q To who?
"A To me, and I said, 'There's no way to turn the lights off. It's on a time meter.' I said, 'You'll have to shoot them out if you want them out.'
"Q What was said or done next?
"A Pratt then sent the other fellow over to the light meter. "No, first- excuse me-first he told me to get them off any way, whether they could or not, and I started to go over to the meter, and he said, 'No, no, no. Stay where you are. Keep your hands up.'
"...
"Q BY MR. KALUSTIAN: What did he say to the other guy, if you can recall?
"A Well, something to the effect of 'Go over to the meter, see if you can get them off,' or, 'get them off.'
"...
"Q BY MR. KALUSTIAN: Did the guy finally go over to the light meter?
"A Yes, he did.
"Q Was he able to turn the lights off?
"A No.
"Q What happened next?
"A Well, we were asked where our-where our money was and where our valuables were, and I told him my wallet was in my tennis bag and my wife's purse had her wallet in it, which was sitting next to the tennis bag on the bench.
"...
"Q Approximately how long were the two people on the tennis court?
"A It was just a few minutes.
"Q Give us your best estimate.
"A Maybe five minutes."
(Under cross-examination Mr. Olsen testified that the two gunmen were varying distances within 12 feet of him and were also "face-to-face ('two, three feet') with both of them probably two or three separate times.")
Mr. Olsen testified that following the murder, he was asked by the police to view pictures on "seven or eight" occasions but was unable to identify the assailant. It was not until about a year later when he was again asked to view pictures. He then testified as follows:
"Q ... When was the next time you were called upon to look at any pictures?
"A I didn't hear anything until approximately a year later, about November, I believe it was, of-that would be 1970.
"Q Where did you view pictures, then?
"A At the same place, the Santa Monica police station.
"...
"Q BY MR. KALUSTIAN: What did you do, did you go down to the police station?
"A Yes, I went down to the police station.
"Q Did you see some photos?
"A Yes, I did.
"Q How many photos did you see?
"A I think it was about 15 or 16.
"Q Was it in a fold-out form?
"A Yes, it was.
"MR. KALUSTIAN: Miss Clerk, may I have that exhibit, please?
"Q Would you take a look at exhibit No. 8. Go through it and tell me whether that appears to be-I say appears to be-the same group of photos that you saw at Santa Monica, and in the same form.
"A Yes, it does.
"Q At that time were you able to select one of the photographs?
"A Yes, I was.
"Q Would you look at those now and tell me which one you were able to select then?
"A No. 13.
"Q What was your state of mind with reference to photograph No. 13?
"A Well, I felt that this definitely did look and appear photographically to be one of the assailants, and that while I didn't think I could make a positive identification from any photograph, and had expressed this to the police department, I felt that that was a picture of the person.
"Q Was this the first time that you felt that you had seen the person?
"A Yes.
"...
"MR. KALUSTIAN: May the record reflect that photograph No. 13, on exhibit No. 8, is Elmer Pratt?
"THE COURT: The record may so indicate.
"...
"Q You have indicated that the people who accosted you at the tennis court each had guns; is that correct?
"A Yes.
"Q Can you describe each of the guns, to the best of your recollection?
"A I believe there was a .45 automatic and a snub-nosed .38 police revolver.
"Q Do you recall which person had which gun?
"A I don't now. I don't recall.
"...
"Q BY MR. KALUSTIAN: Is there any doubt in your mind at this time that Elmer Pratt, the defendant in this case, was one of the two men on the tennis court in Santa Monica on December 18, 1968 ?
"...
"THE WITNESS: There is no doubt." (Italics added.)
During the extensive cross-examination by defense counsel Mr. Olsen was asked if there was "anything unusual about the manner in which he (defendant Pratt) walked or conducted himself?" Mr. Olsen replied, "very definitely ... the fact that he held us up, and then pumped bullets into us, and murdered my wife."
**90 Witness Barbara Reed, who with her husband Fred Reed owned and operated the Lincoln Hobby Center in Santa Monica about four blocks *813 from the tennis court, testified that on December 18, 1968, a few minutes before the "tennis court murder" two male blacks entered her shop while she was alone in the shop addressing Christmas cards and waiting *814 for her husband to return; that one of the men was defendant Pratt who was the shorter of the two; that the defendant looked down into the office and then the taller of the two proceeded along with him to the back of the store and looked into two cases. Mrs. Reed asked if she might *815 help them and defendant inquired if they had merchandise to build a doll house for his wife. She replied that they did not have material at the time to build a doll house since they were just starting the shop and defendant said: " 'You act as if you don't want to sell us anything.' " Mrs. Reed said, " 'Sir, you have to realize we are just moving up into this store. We don't have much merchandise in here at the present time, and each night my husband brings up a carload on the way home.' " The two men then left the store and Mrs. Reed, feeling suspicious, locked the door and turned the sign from "open" to "closed". Shortly thereafter she heard male voices, looked through the window of the door and saw the same two men walking back and talking to each other. She saw both men standing in the doorway with a gun protruding from the right hand of the tall man while defendant Pratt shook the doorknob saying, " 'Let us in.' " Mrs. Reed immediately went to the telephone to call the police and the two men departed.
*816 (Fred S. Reed, husband of Barbara Reed, testified that he was driving to the Santa Monica hobby shop at about 8 p. m. on December 18, 1968, and as he approached the store he saw two black individuals jimmying the front door trying to get in. After he circled the block, he saw the same two black men, one of whom was wearing a safari jacket, hurry away on Lincoln Boulevard and disappear between two parked cars.)
At the pretrial hearing of defendant's motion to suppress Mrs. Reed's identification of him (which motion was denied by the court), she (Mrs. Reed) made a positive in-court identification of Pratt as being the shorter of the two blacks who on December 18, 1968, at about 8 p. m. shortly before the tennis court murder were in her hobby shop and who then returned later and tried to get in the locked front door. [n. 8]
n. 8. Following is the testimony of Mrs. Reed at the pretrial hearing on defendant's motion to suppress her identification testimony:
"Q What time did you lock the door to the hobby shop?
"A Normally 8 o'clock. This evening it was possibly a few minutes before eight.
"Q Just before that, moments before that did you see somebody in the hobby shop who you now recognize?
"A Yes.
"Q Who was that person?
"A The gentleman sitting right there (indicating).
"Q This gentleman I have my hand over?
"A Yes.
"MR. KALUSTIAN: May the record reflect I have my hand over the defendant Elmer Pratt.
"THE COURT: Yes, the record may so indicate.
"Q BY MR. KALUSTIAN: Did he come in with another gentleman?
"A Yes.
"Q Distinguishing the two in terms of height, if you can, was Mr. Pratt any taller or the shorter of the two?
"A Mr. Pratt was the shorter man.
"Q Sometime after that, I think maybe close to two years later, were you called upon to view approximately 16 photographs in connection with this case?
"A Yes.
"Q Looking at those photographs, could you remember now how they were arranged, or what kind of a layout there was to them?
"A It was in a type of an album, and I looked at quite a few, and toward the end of the book was a picture, two pictures, that I identified that as being Mr. Pratt.
"Q Were these two pictures on the same or different pages?
"A I think on the same page, one above and one below the other one.
"Q Were there more than one photograph of each of the individuals pictured?
"A Yes. There were two photographs.
"Q Seeing Mr. Pratt now, and assume for a moment that you had not seen this group of photographs about two years after the time Mr. Pratt came into your store, just to set the time, Mrs. Reed, was it just before you appeared before the Grand Jury that you were called upon to view these photographs?
"A Yes.
"Q Going back to that time, and assuming that you had never seen those photographs, and looking at Mr. Pratt today, can you tell us whether, in your own mind, not seeing those photographs you could have identified Mr. Pratt today?
"A Yes.
"Q Do you feel you could or could not have today?
"A I could have identified him today.
"Q In looking back, if you can, you have identified Mr. Pratt here today as being in your store on December 18th, 1968, can you tell us whether your identification of Mr. Pratt today is based upon the time you saw him in your store on that date, or whether it was based on any other factors?
"A As I see Mr. Pratt now, I recall the scar he has above the bridge of his nose. Today I am positive I was drawn to that scar, and I, in my conversation with him, I noticed, and I do remember more explicitly than ever the scar above his nose today.
"...
"Q Now, when you looked at the photographs, were you looking for some particular distinctive feature in particular?
"A No.
"Q Would it be fair to say that you retained a general impression of the appearance of the man that had been in your store?
"A Yes.
"Q Did you recall any specific feature of either of the men?
"A The short one, I could just picture his entire face, his entire person in my mind.
"Q But you didn't have in mind any scar above his nose?
"A Yes, I knew he had something on his face; yes.
"Q You mean the man that had been in the hobby store had something on his face?
"A The shorter man, yes.
"Q What did the short man that was in the hobby store have on his face?
"A The scar above the bridge of his nose.
"Q Describe the scar.
"A It was a round scar, deep, indented.
"Q You noticed that when the man was in the hobby store?
"A Yes, I was talking to him face to face.
"..." (Italics added.)
*817 **91 At the jury trial Mrs. Reed again positively identified defendant Pratt as one of the two gunmen. She "remember(ed) his face thoroughly" and that "one predominent feature" was a round scar ("indentation") "between his eyes on the lower part of the forehead, above the eyebrows." [n. 9] (Exhibit 8 includes a photograph (No. 13) of **92 defendant Pratt which shows he has a small round-shaped scar or indentation on his lower forehead similar to that described by witness Barbara Reed.) She testified that Pratt was wearing a safari jacket hanging open with a black or navy blue tank type shirt or sweater underneath, brown trousers, tan shoes and no hat.
n. 9. Witness Barbara Reed testified at the trial in the following manner:
"Q In looking at Mr. Pratt today, what is it about him that enables you to say that he was in your store, that gentleman there, Mr. Pratt, on the 18th of December, 1968?
"A I remember his face thoroughly.
"Q Anything else about his face?
"A Exactly everything about his features.
"Q Well, tell us specifically what you recall from that night that you now see.
"A Everything about him, his haircut, the shape of his head, his eyes.
"Q Tell us a little bit what you mean about his haircut.
"Is there anything significant to you about his hair?
"A I would call it a crew cut. That is the same today as it was then.
"Q A short cut?
"A Yes.
"...
"Q BY MR. KALUSTIAN: Did you notice anything about the configuration or shape of the hair?
"A No, just a full head of hair and a widow's peak in the front.
"Q Sorry?
"A What is called a widow's peak, a point in front of the forehead.
"Q You mean as the hairline comes down to a point?
"A This is called a widow's peak, yes.
"...
"Q BY MR. KALUSTIAN: You have indicated that when you were talking with Mr. Pratt, you were standing face-to-face talking with him; is that right ?
"A Yes. He was about the same height I am.
"Q And did you get a look at his face as you were standing?
"A Yes. I was face-to-face with the man, and what drew my attention to him, one predominent feature, well, indirectly a feature, was a scar on his forehead.
"Q Where was the scar?
"A Between his eyes on the lower part of the forehead, above the eyebrows.
"Q What was the shape of the scar?
"A Just an indentation of some kind.
"Q Well, was it a long scar?
"A More round than anything else.
"...
"Q BY MR. KALUSTIAN: Do you recognize anything about Mr. Pratt's face as you look at it now that was the same as the individual you saw in your store?
"A Yes.
"Q Tell us, please, what ?
"A Well, as I said before, the scars on his forehead seemed to draw my attention.
"...
"Q Is there any doubt in your mind as you view Mr. Pratt now that he was in your store at about 8:00 P.M. on December 18th, 1968 ?
"A There is no doubt in my mind." (Italics added.)
*818 THE MURDER WEAPON:
The chief forensic chemist for the L.A.P.D., De Wayne Wolfer, testified that a barrel for a .45 caliber automatic pistol is removable but that marks left on an expended shell from the breech face, firing pin and ejector are positive means of firearm identification. He positively identified, by use of a comparison microscope, that the three expended casings recovered at the scene of the "tennis court murder" of Caroline Olsen on December 18, 1968, were fired from the .45 caliber automatic pistol found in the second floor living room next to the window overlooking *819 the front of the premises at 806 West Century Boulevard on January 17, 1969. [n. 10] He was unable to identify **93 the slugs recovered as matching the same .45 caliber automatic pistol but surmised the barrel had been changed or that excessive firing of the weapon precluded identification. (The failure to match the slugs with the barrel is consistent with Butler's testimony that defendant Pratt told him he had changed the barrel in the murder weapon; see infra.)
n. 10. Officer Wolfer testified as follows at the trial:
"Q You have indicated your opinion was that your test shells and the shells supplied to you by Sgt. Buckles were fired by the same gun, that is, People's 27, the one you compared it with; is that correct?
"A That's correct.
"Q Is that a positive opinion?
"A That's correct.
"Q Is there any doubt in your mind that opinion is positive?
"A Based upon all my studies and experience in the field for the past twenty some-odd years, that is a positive identification, that it came from this gun and no other gun."
Previous to the introduction of the above testimony by Ballistics Expert Wolfer, the prosecuting attorney and defense counsel stipulated to a tracing of the slugs and spent shell casings found at the scene of the crime to the witness as follows:
"MR. KALUSTIAN: May it be stipulated that on or about 12-19-68, December 19th, 1968, Det. Eckstein of the Santa Monica Police Department received from Dr. Harold Eisele of Santa Monica a slug that Dr. Eisele removed from Caroline Olsen;
"That Det. Eckstein transported the slug to the Santa Monica Police Department and booked it into evidence in the same manner that Officer Plasse indicated he did;
"That on or about January 29th, 1969 Officer Sollee--S-o-l-l-e-e--of the Santa Monica Police Department transported the slug and spent shell casings found by Officer Plasse at the scene, and the .45 caliber slug put in evidence by Det. Eckstein from Dr. Eisele, and transported them to Sgt. Warner of the Sheriff's Crime Lab in Los Angeles;
"That on January 29th, 1969 Sgt. Warner received them and booked them into Sheriff's Evidence.
"May it further be stipulated that sometime prior to the Grand Jury hearing, within two or three months, I don't recall the exact date, Sgt. Buckles, then of the Los Angeles Police Department, received from Sgt. Montgomery of the Sheriff's Department the spent shell casings and slugs turned over to the Sheriff's Department by Sollee, that is, the evidence found by Plasse at the scene and the slug removed from Mrs. Olsen by Dr. Eisele, and, further, that Sgt. Buckles picked up out of evidence the .45 caliber automatic, I believe now referred to as Exhibit-is it 27?
"THE WITNESS: Just a moment, and I'll tell you. The clip is 28, the gun is 27.
"MR. KALUSTIAN: Sgt. Buckles delivered the gun, spent shell casings, and slugs to De Wayne Wolfer of the Los Angeles Police Department Special Investigation Division, commonly called the Crime Lab.
"Counsel?
"MR. HOLLOPETER (defense counsel): Yes, so stipulate.
"THE COURT: The stipulations are accepted."
The above testimony of Ballistics Expert Wolfer was uncontradicted. At defense counsel's request the court appointed a ballistics expert of the defense's choosing, namely M. L. Miller. Mr. Miller examined the *820 same evidence and made an independent microscopic comparison in the presence of Officer Wolfer but was not called as a witness by the defense to testify to contradict Officer Wolfer's testimony.
THE GETAWAY CAR:
Witness Mitchell Lachman who was parked in a van next to Lincoln Park at about 8 p. m. on December 18, 1968, testified at the trial that he heard shots and then saw two black men run very fast from the tennis courts and get into a red (shiny-polished) car with a white canvas convertible top and speed away. He did not get the license number but saw that the license plate had a white background with dark numerals. At the trial he identified a 1968 North Carolina license plate as having a color consistent with the color of the plate on the getaway car. He further identified a photograph of a car which was once red but which had been repainted blue as having the same body design as the getaway car and the red under a right front chrome headlight frame which had not been repainted blue as similar to the color of the car he saw speed away from the scene of the crimes.
Officer John Lawrence Higgins of the L.A.P.D. testified that on April 12, 1969, at about 11:30 p. m. at 28th and Westview Streets he stopped a 1967 Pontiac convertible, white over red in color with a California license number YEZ 997, which was driven by defendant Pratt with a Roger Lewis as a passenger. He made a report that the identification number of the vehicle was 242677P-239094. He further testified that the strip of red under the headlight rim of the car (the car that had been repainted blue) was the color of the car he stopped on April 12, 1969.
The following are the stipulations entered into between the prosecution and defense counsel and accepted by the court in respect to the getaway car:
"MR. KALUSTIAN: At this time may it be stipulated between the defense, Mr. Hollopeter and Mr. Cochran, and myself, the prosecution, that the following information was obtained from the Department of Motor Vehicle records from the State of North Carolina and the State of California;
"That on October 3rd, 1967, the defendant Elmer Pratt purchased a 1967 Pontiac convertible, red body, white top, in North Carolina.
*821 "It bore identification number 242677, P as in Paul, 239094, and was assigned North Carolina license D5113.
"This vehicle entered California on September 6th, 1968. The defendant Elmer Pratt first made application for California registration on February 3rd, 1969 for the 1967 Pontiac convertible, red body, white top, bearing identification number 242677P239094, and North Carolina license D5113.
"On March 27th, 1969, the California Department of Motor Vehicles issued to **94 this vehicle California license plate YEZ, Young Edward Zebra, 997.
"On August 22nd, 1969 the defendant Elmer Pratt made application to the California Department of Motor Vehicles for a new license plate.
"On September 4th, 1969 the California Department of Motor Vehicles issued new California license plates, Young Zebra X-ray, YZX 618 to defendant Elmer Pratt's vehicle, a 1967 Pontiac convertible, identification number 242677P239094.
"On April 8th, 1970 the defendant Elmer Pratt sold the above described vehicle to Haste and Hirste, Incorporated, automobile dealers.
"Further, that the car shown in Exhibits 11 and 12 (painted blue) is the same car heretofore referred to, that is, the one bearing ID number 242677P239094.
"MR. HOLLOPETER: So stipulated.
"...
"MR. COCHRAN: Stipulate."
THE TESTIMONY OF JULIUS CARL BUTLER ("JULIO"):
Julius Carl Butler, [n. 11] one of the prosecution's key witnesses, on December 18, 1968 (the date of the "tennis court murder"), was a hair stylist operating his own beauty shop and was also a member of the BPP. At that time he was a bodyguard with the rank of Lieutenant in the *822 BPP with duties of supplying security at Party rallies and events. He was called "Julio". Although his shop was not a hangout of the Black Panthers, it was used according to Butler to "communicate sometimes with each other through (him)". At the trial Butler testified substantially as follows:
n. 11. BACKGROUND : Following graduation from high school in 1950 Butler joined the United States Marine Corps, saw service in Korea and was honorably discharged in the rank of Sergeant in 1954. He then attended Los Angeles City College (mainly at night) for about three years, primarily studying criminology. He became a Los Angeles County Deputy Sheriff in 1956 but resigned in 1960 because of domestic problems. Thereafter he worked as a laborer in construction for three years before attending a school of cosmetology. Following his graduation from that school he was employed for several years as an operator in various beauty salons until he opened his own beauty parlor called "Mr. Julio" on West Adams Boulevard in Los Angeles.
On December 18, 1968 (the date of the "tennis court murder"), Pratt came to his shop with another person whom he (Pratt) introduced as "Tyrone". Pratt told him (Butler) to come outside as he had something to tell him. As they stood in the doorway "he (Pratt) told me (Butler) he was going on a mission, and if he didn't come back, you know, to notify the other members of the Party that something might have happened to him." Pratt did not indicate what the "mission" was. The two then left and Butler went back to work. Butler had no conversation with Tyrone who was taller than Pratt.
Later the same night, around midnight or in the early hours of December 19, 1968, Pratt returned to the shop and "appeared to be very nervous." He told him (Butler) "that he had shot some people, and he didn't know whether or not he had killed them, or words to that effect." Pratt also told him the shooting occurred in Santa Monica. Nothing else was said about the shootings at that time and Pratt told Butler he would check with him later.
On December 19, 1968 (the day following the tennis court shootings), Butler saw an article in the Los Angeles Times newspaper which reported a shooting incident in Santa Monica. Later that day he met Pratt "at the 3-A office" (the Black Panther headquarters at 7th Avenue and Venice in Los Angeles). He testified that there were "quite a few people there but I (Butler) talked to him (Pratt) outside of the office." Just the two of them were present. Butler testified that "I showed him the newspaper and the incident, and he (Pratt) stated that that was the incident that he (Pratt) was talking about the night before." Butler asked Pratt what happened to his car because the newspaper indicated that his car had been apprehended or taken, seized, and he (Pratt) said, "no, it wasn't, and that it was hid out". Butler also stated that Pratt **95 had *823 a red or burgundy Pontiac GTO convertible with a white top which was always kept washed and polished. [n. 12]
n. 12. The record indicates that a car was seized by the police shortly after the murder but after further investigation it was released as having not been the getaway car.
Butler testified that while discussing the newspaper article with Pratt "I asked about the weapon that was used and what he had done with it, and he told me he had destroyed the barrel." Pratt at that time did not state what kind of weapon he had used, but later acknowledged that it was a .45 caliber automatic. Pratt bragged about "his own capacity and proficiency" in the shootings and how "cool" he was for disposing of the gun barrel. [n. 13] Butler testified **96 that the writing, sealing and delivery of the letter (see APPENDIX A) to Sergeant Rice on August 10, 1969, stemmed from the fact that he had become disenchanted and disillusioned with the BPP and its philosophy and decided to quit but when he (Butler) told Pratt that he wanted out of the Party his life was threatened and he was told he couldn't quit because he knew too much. Butler then decided as an "insurance policy" to write the letter, which he did, and gave it to Sergeant Rice, a friend whom he trusted, in a sealed envelope with instructions that it should only be opened in the event of his death. He *824 then put the word out on the street that such a letter was in existence so it would reach defendant Pratt. [n. 14]
n. 13. The reporter's transcript contains the following colloque between the prosecuting attorney and witness Butler in respect to Pratt's statements to him, the murder weapon and the getaway car.
"THE WITNESS: I asked about the weapon that was used and what he had done with it, and he told me he had destroyed the barrel.
"Q BY MR. KALUSTIAN: What kind of a weapon did he say he used, if he did?
"A He didn't say at that time.
"Q Go on.
"A He said later on, at another incident.
"Q Okay. What else, if anything, did he say at that time in regard to anything concerning the events in Santa Monica?
"A He stated to me that he was the one that did the shooting, that shot the people, because Tyrone couldn't shoot.
"Q Did he indicate why Tyrone couldn't shoot?
"A No, he didn't.
"Q Did he indicate it was because of accuracy, or his inability to shoot, or what; do you recall?
"A He was expressing his own capacity and proficiency.
"Q Was there any other conversation regarding what he was to do about it, or anything else?
"A He said he was cool. He said the car was cool and he was cool.
"Q Did he indicate why?
"A Well, the disposal of the gun barrel.
"Q By this time, he still had not disclosed the kind of gun he had used; is that correct?
"A No, he hadn't.
"Q Did he carry or usually carry a particular type of gun?
"A He usually carried a .45 automatic.
"Q Did you have any other conversations with him regarding these events, whether it be a total conversation, or words, a few words here and there? When is the next time that he said anything about it?
"A I didn't see him for quite some time after that, because I was looking for him later when a newspaper account stated that the lady had died.
"...
"Q BY MR. KALUSTIAN: When was the next time you recall seeing him?
"A The date that Bunchy Carter was killed.
"Q What were the circumstances?
"A He came to my shop and told me that he thought that the deputy had been killed on the campus at UCLA, but he wasn't sure.
"Q Who is the deputy?
"A He was referring to Bunchy Carter. He was commonly called the deputy.
"Q Did you eventually go to the Century Boulevard address, John Huggins' house, that night?
"A Yes, I did.
"Q When was the next time you can recall that Mr. Pratt talked about the event in Santa Monica?
"A It came up on numerous occasions. People would tell him that the car wasn't cool, and Bunchy had told him to get rid of the car, and he would shine it on.
"Q What do you mean by that?
"A He would say it was all right.
"Q You have indicated that one time he did not tell you what kind of a gun was used. Did he ever indicate what kind of a gun was used?
"A I told him I saw it in a newspaper later, that they said it was a .45.
"Q When was this that you told him that?
"A When he came back-well, this was after Bunchy's burial, we was discussing it.
"Q What did Elmer Pratt say about that, if anything?
"A He reminded me that he was-he said he was cool, because he had disposed of it. He had disposed of the barrel, so he wasn't worried about it.
"On one occasion I asked him-when he laid the .45 on my table-was that the weapon, and he stated, 'No,' because I told him I didn't want it in the house.
"Q When was that?
"A This was after Bunchy's death. I couldn't give you a specific date.
"Q But it was after the killing of Bunchy Carter at UCLA?
"A Yes.
"Q Do you recall any particular person talking to Elmer Pratt about getting rid of the car?
"A Elaine Brown on several occasions.
"Q What would she say and what would Mr. Pratt say?
"...
"THE WITNESS: Elaine-she reminded him that Bunchy had told him to get rid of the car, you know. On one occasion, I remember they were having car problems, you know, and they told him they would buy him a new car.
"Q BY MR. KALUSTIAN: They would or would not?
"A He said that the girls would buy him a new car.
"Q What did he say?
"A He said he'd think about it, but he didn't want to get rid of it right now.
"..."
n. 14. Following are pertinent portions of witness Butler's testimony at the pretrial hearing pertaining to the materiality and relevancy of the letter:
"Q Originally when you delivered the letter to Sgt. Rice did you intend that the contents of the letter be disclosed to the Police Department?
"A No. No, not at that time.
"Q Was this letter delivered because Sgt. Rice was a friend of yours?
"A Yes.
"Q At that time what was your reason for giving Sgt. Rice the letter?
"...
"THE WITNESS: Sgt. Rice was a personal friend of mine and I trusted Sgt. Rice, and there had been several threats on my life, so I didn't want to give it to anyone else that-I didn't want to upset members of my family or other people, and I didn't want to give it to somebody else that was not responsible, and I trusted him not to open the contents until something did happen.
"Q Was it through circumstances not originally foreseen by you that caused the letter to be opened by the police department?
"A That's correct.
"Q Did you attempt to make known on the street the existence of information that you had?
"A I did.
"Q What did you say in that regard and who did you say it to, if you can recall?
"A Well, I wanted-for security reasons, I'm not going to disclose the people I let it drop through, but I let it drop in the streets that if they continued to threaten me and if anything happened to me, that the information would be revealed to law enforcement agencies.
"Q What information?
"A Information relative to Pratt's incident in Santa Monica.
"Q When you dropped the information, did you drop it with the expectation and to people, hopefully, who would bring it back to Pratt?
"A That's correct.
"...
"Q Would you tell us who were the people that made threats against your life?
"A Elmer Pratt, Long John Washington, Blue, Elaine Brown.
"Q Is Blue Roger Lewis?
"A Yes.
"Q What form of threat had it taken when Mr. Pratt threatened you?
"A Well, one night they threatened me. They held me at gunpoint in my house.
"Q Tell us about it.
"A I was having contradictions with Elmer Pratt and some of the other members of the party, and Long John-there was (sic) some more people in my house, who were related to me personally.
"Long John picked up a pistol and cocked the pistol and told me he was going to shoot me, and Geronimo kept saying, 'Shoot him. Shoot him,' and I told him, I said, 'Well, you would have to deal with these other people that are in the house, and if you kill me, you won't get out of the building.' And, finally, they put the gun down.
"Q Did this series of events, which led to the threats on your life, begin with some disagreement regarding party philosophy?
"A Yes.
"Q Did it culminate with the writing of the letter and delivering it to Sgt. Rice?
"A Well, the culmination-that last incident, when they pulled the gun on me, I told them to stay away from me because I didn't trust them, and Pratt came to my shop and I was holding a gun under a towel.
"He told me I couldn't quit. I told him I could quit. He told me I knew too much. Then he told me he would deal with me later, and I told him if he approached me again, that I was paranoid enough to shoot him.
"MR. COCHRAN (defense counsel): I didn't hear the date of this occurrence. Was there a date on this?
"MR. KALUSTIAN: It probably wasn't given.
"MR. COCHRAN: Could we have a further foundation on this occurrence?
"THE COURT: Yes.
"Q BY MR. KALUSTIAN: When did it occur?
"A I can't give you the exact date.
"Q Was it before or after the letter?
"A It was before the letter.
"Q Could you give us an idea in terms of days, or weeks, or months?
"A About the month of June.
"THE COURT: Was the year 1969?
"THE WITNESS: Yes, ma'am.
"Q BY MR. KALUSTIAN: Did you tell Sgt. Rice what information the letter contained?
"A No.
"Q Did you leave him or did you intend to leave him with the impression that it was personal to you, rather than police business?
"A Yes. I told him. It was all done in an unofficial capacity. This was the understanding we had.
"Q You understood that he was a policeman at that time, didn't you?
"A Yes.
"Q And that he was working community relations?
"A Yes.
"Q And that he had contact with the Black Panthers, the US organization, and other groups in the street?
"A Yes."
Following are the pertinent portions of Butler's testimony at the trial in respect to the delivery of the sealed envelope to Sergeant Rice.
"Q (By Mr. Kalustian): Do you know Sgt. Duwayne Rice of the Los Angeles Police Department?
"A I do.
"Q Is he a friend of yours?
"A Yes, he is.
"Q Back on or about August 10th, 1969 did you deliver to him a written document sealed in an envelope?
"A Approximately that time, yes.
"Q Did you tell him something in regard to the document?
"A Yes, I did.
"Q Would you tell us what you told Sgt. Rice?
"...
"THE WITNESS: I gave Sgt. Rice an envelope and stated to him that there had been death threats on my life and that this envelope was only to be opened in the event of same.
"Q By MR. KALUSTIAN: Did you state that on the outside of the envelope?
"A Yes, I did.
"Q Did you give the envelope to Sgt. Rice as a policeman or as a friend?
"A I gave it to him as a personal friend.
"Q Why did you give it to him?
"A Because I felt he was one of the most reliable persons that I could rely on not to open it without my permission, and I didn't want to upset other members of my family with it.
"Q Well, why did you feel it necessary to deliver this envelope with information?
"A Because the envelope at that particular time was the only bit of leverage that I could have used against the people that were making the threats against me."
*825 **97 (Sergeant Rice at the trial corroborated Butler's testimony pertaining to the receipt of the sealed envelope from Butler and that Butler had told him that he (Butler) felt that he was going to be killed and handed *826 Rice the envelope with instructions that it should only be opened in the event of his (Butler's) death. [n. 15]
n. 15. Following is the testimony of Sergeant Rice at the trial in respect to Butler's delivery of the letter to him with instructions.
"Q BY MR. KALUSTIAN: What did Julio Butler tell you when he delivered the sealed envelope to you?
"A We had been talking about several things and he says, just prior to giving me the envelope, he says he feels that he's going to be killed, that he understood there was a contract out for him and that if anything happens to him,-simultaneously, he was reaching in his inside pocket. He gave me the envelope-Would you read this, he said, and give it to my mother?
"Q What event was supposed to occur before you were to read it?
"A I had the impression he had to die first."
*827 In respect to the circumstances surrounding the opening of the sealed envelope on October 20, 1970 (over 14 months after Butler handed it to him), Sergeant Rice testified that he had first given it to Captain Henry for safekeeping 5 or 6 months after he received it as a personal friend from Butler; that he did not know the contents of the envelope; that he (Sergeant Rice) was under investigation by internal affairs of the L.A.P.D. for a matter unrelated to the delivery of the letter to him (for striking a white police officer). The L.A.P.D. internal affairs knew of the existence of the sealed envelope and demanded to see it as part of their investigation. Sergeant Rice asked Butler's permission to turn it over to internal affairs officers, which was granted. Sergeant Rice then asked Captain Henry for the sealed envelope and turned it over to Sergeant Edmund M. Lutes, Jr., of internal affairs who opened the envelope. As previously noted, the information contained in the letter (see APPENDIX A ) was what caused the detectives for the first time to focus on defendant Pratt as a suspect **98 in the December 18, 1968, murder of Caroline Olsen.
(During the course of the trial Butler substantially corroborated Sergeant Rice's testimony in respect to the opening of the sealed envelope.) As a result of the investigation prompted by the contents of the letter, Butler was called as a witness before the grand jury. Butler stated that he reluctantly testified before the grand jury because "(he) figured that the testimony would nullify the fact that (he) had the information, that *828 (he) was using it as leverage" (an "insurance policy") against the threat on his life. [n. 16]
n. 16. During the defense pretrial motion attacking the materiality and relevancy of the letter Butler testified as follows:
"Q After you delivered the letter to Sgt. Rice in 1969, when was the next time you heard anything about the letter?
"A Approximately a year later.
"Q Were you approached by somebody regarding it?
"A The Internal Affairs of the LAPD.
"Q Because of the investigation involving Sgt. Rice, you agreed to have the contents disclosed; is that correct?
"A Yes, because they were going to-well, they might have prosecuted Sgt. Rice, so I figured he had done as much as he was supposed to do for me as a friend, and I wasn't going to let him go down the drain by it."
At the trial Butler testified as follows:
"Q BY MR. KALUSTIAN: Did you have a conversation with Sgt. Rice regarding opening the envelope?
"A Yes, I did.
"Q What did you say and what did he say regarding that particular item?
"A Sgt. Rice stated to me that the Internal Affairs Bureau of the Los Angeles Police Department had instituted an investigation relevant to him being possibly subversive because of his relationship with me and the envelope, and that as a personal friend he would not open the envelope and would take his chances on being persecuted or fired if I stated so, and I told-at which time I told him he had subjected hisself (sic) enough for my friendship, and to go ahead and open the envelope.
"Q Later on you testified before the Grand Jury, didn't you, Mr. Butler?
"A That's correct.
"Q And I think some questions were asked of you regarding your reluctance to testify, and whether or not you were telling the whole truth; do you recall that?
"A That's correct.
"...
"Q BY MR. KALUSTIAN: Were you reluctant to testify?
"A Yes, I was.
"Q Why were you reluctant to testify?
"...
"THE WITNESS: Well, first of all, I figured that the testimony would nullify the fact that I had the information, that I was using it as leverage.
"Q BY MR. KALUSTIAN: You mean it would become public knowledge?
"A It wouldn't have any street value any more."
THE OLLIE TAYLOR INCIDENT:
Julio Butler testified that when he returned home the night of April 22, 1969, defendant Pratt and some other Black Panthers were already at his apartment and were waiting for someone. Ollie Taylor, a 17-year-old Black Panther whom he did not know, was brought in and the other Panthers started interrogating him (Taylor) about being affiliated with the US organization; that during the interrogation Blue struck Taylor in the mouth with a gun; that the group then moved into a back room where the interrogation continued; that Pratt then with a *829 cocked hammer on his pistol ordered Butler to interrogate Taylor; that Butler was "very seriously frightened" of Pratt and struck Taylor with his hand; that when the interrogation ceased he washed Taylor up and allowed him to stay in the room the rest of the night; and that Taylor left the next morning. [n. 17]
n. 17. Julio Butler's testimony at the trial of the instant case in respect to the Ollie Taylor incident was as follows:
"Q You have indicated there was an incident involving Ollie Taylor, and you indicated you slapped Ollie Taylor.
"A Yes, sir.
"Q Would you tell us the circumstances surrounding the whole incident, who was there, and the reason that was given by Mr. Pratt for the incident, if any?
"A On the night the incident occurred, when I came home there was Elmer Pratt and approximately six or seven, eight more people in my apartment. At that time they had a key to my apartment, you know, it was two extra keys out, and they were waiting for someone who I didn't know, and they stated this fellow's name was Ollie Taylor, and I had never seen or heard from him before.
"He stated that he had seen me at Hollywood High School at a rally, but I didn't know anything about him, so they brought him in and started an interrogation.
"First he was accused of being a member of the US organization, then Geronimo jumped on him because he said he had heard that Ollie Taylor had put it out in the streets that Blue and Geronimo ran off and left Bunchy Carter at UCLA.
"Q The day he was killed?
"A Yes, and this is how the fight started.
"So pretty soon it quieted down. Blue was the one that struck him with the gun in the mouth. So they went in the back room out of the front room and say, (sic) 'Let's all go to the back room, and we'll sit down and talk.'
"I had an elongated, stuffed pillow approximately maybe about 12 feet long.
"Q Feet?
"A About 12 feet long and approximately maybe about two and a half feet wide, and this room was basically bare except for some pillows, and Pratt laid on the pillow next to the window and faced the rest of the people, at which time he had a magnum in his hand, and-
"Q Was Ollie Taylor in the room at this time?
"A Yes.
"Q Okay.
"A Ollie Taylor was sitting in the middle of the room, and I was sitting next to Ollie Taylor, and I was trying to talk to Ollie Taylor on the basis of 'Give as much information about yourself to clear yourself,' and Geronimo stated to me that the shit he was talking was a bunch of bull shit, and I looked over and he cocked the hammer on the pistol.
"Q Where was the pistol pointed, if at all?
"A It was actually right between me and Ollie Taylor, because I was sitting side-by-side with Ollie Taylor.
"Then I noticed that Geronimo had an erection, and he stated, 'If you don't move, I'll blow your head off,' and he said, 'Furthermore, I think maybe you're siding with him,' so he told me to slap Ollie Taylor.
"He say, (sic) 'You interrogate,' so I did it in the pretense of trying to- at that time I was frightened of Geronimo's behavior, very seriously frightened. I had never seen a man with an erection-
"MR. HOLLOPETER: Well, we will object to this as nonresponsive.
"Q BY MR. KALUSTIAN: At any rate you were frightened at that time, that's why you struck Ollie Taylor?
"A Yes, sir. Then I began to talk to everybody in the room, and tried to talk-
"MR. HOLLOPETER: Object to voluntary statements, your Honor.
"THE COURT: Sir, there is no question pending right now.
"THE WITNESS: Sorry.
"Q BY MR. KALUSTIAN: Mr. Butler, where did Ollie Taylor stay that night, if you know?
"A He stayed in the room. I washed him up and let him stay.
"Q When did he leave?
"A The next morning."
*830 **99 (The testimony of the victim Ollie Taylor was substantially as follows: that on approximately April 22, 1969, at about midnight he, Ollie L. Taylor, Jr. (17 years of age), was picked up at the gas station where he worked by Richard Johnson and Nathaniel Clark and taken to Julio Butler's apartment; that when he (Taylor) arrived at the apartment defendant Pratt, Blue, Long John Washington, Julio Butler and Elaine Brown were present. Taylor was placed in a chair in the middle of what appeared to be a living room and was questioned first by defendant Pratt and thereafter by Elaine Brown if he was a member of the US group. When Taylor answered that he was not, defendant Pratt said he was lying and hit him with his hand knocking him out of the chair onto the floor where several persons started kicking him. Taylor rolled himself into a ball and covered his head. He was then stood up and taken into another room and sat down on the floor facing defendant Pratt. Pratt sat on something that looked like a mattress holding a gun. Defendant Pratt asked him again if he was a US member and because his answer was not definite, Blue hit him in the head with a gun five or six times. After he had been asked several questions, Julio Butler came into the room, showed him a newspaper with some US members' pictures on it and asked him if he knew them. When Taylor replied he did not, Julio Butler hit him across the mouth with the back of his hand, knocking one tooth out and chipping another one and then gave him a towel. They went through his wallet looking for US identification and then defendant Pratt, Blue and Julio left the room. Later a man came in the darkened room and helped him lie down and took his shoes off. Since it was dark, he didn't know who the man was. [n. 18] In the morning Elaine Brown and another "sister" took him home.) [n. 19]
n. 18. The man who came into the darkened room could possibly have been Julius ("Julio") Butler. (See fn. 17, ante.)
n. 19. The Ollie Taylor incident resulted in a criminal action entitled People v. Butler (Super.Ct. No. A245134) in which Nathaniel Clark, Ronald Freeman, Richard Johns, Roger Lewis, John Washington and the defendant herein (Pratt) were named as codefendants charged with false imprisonment (Pen.Code, s 236) and assault with a deadly weapon (Pen.Code, s 245) of Ollie Taylor as the victim. Butler pleaded nolo contendere.
*831 **100 Defense
DEFENSE TESTIMONY OF ELMER GERARD PRATT ("G" or "GERONIMO"):
Defendant Pratt [n. 20] testified in his own defense. He denied ever being in Barbara Reed's hobby shop or in the tennis court in Santa Monica at any time including on December 18, 1968. He denied making a statement to witness Butler at any time on the evening of December 18, 1968; he further denied going out on a "mission" or later telling Butler that he had shot someone on that date or discussing with Butler on December 19, 1968, a newspaper article concerning the "tennis court murder". He denied that he ever went any place with a man named Tyrone. He knew a Tyrone Hutchison who was a Black Panther but didn't meet him until sometime in 1969.
n. 20. BACKGROUND : Pratt was born and raised in the State of Louisiana. In 1965 after graduating from high school he joined the United States Army * and served in Vietnam. He was honorably discharged from the Army at Fort Bragg, North Carolina, on May 27, 1968. In September 1968 he drove with his sister, Emelda Granger, to California, in his 1967 GTO Pontiac convertible (red body with a white top), bearing North Carolina license plates (later determined to be the getaway car, see supra). He then enrolled as a full-time student at U.C.L.A. in a special program financed by the federal Office of Economic Opportunities (OEO) majoring in liberal arts and black studies. It was at U.C.L.A. that he met Bunchy Carter and joined the BPP.
* During direct examination at the trial, the following colloquy occurred between defendant Pratt and his defense counsel:
"Q What did you do after leaving high school?
"A I joined the service.
"Q That's the United States Army?
"A United States Imperialist Army, correct." (Italics added.)
In addition to his general denial of the crimes alleged, the defendant's main defense was an "alibi". He stated that "(he) was in Oakland, Oakland or Frisco. (He) was in the Bay area" on December 18, 1968. He went to the Bay area either on the 13th, 14th or 15th of December, 1968, to get acquainted with the BPP program. He did not return to Los Angeles until the day after Christmas, December 26, 1968. Although he went to San Francisco by airplane, he did not remember the airline. He did not buy a ticket himself because it was given to him by Bunchy Carter and "it was a sister who got the ticket." Franco Diggs (now deceased) drove him to the airport. When he arrived in San Francisco, he took a cab to the San Francisco BPP office where he saw "two sisters". He spent the night at "a Panther pad" above a drug store with others including Fred Bennett and Richard *832 Brown. The next day he went to the National BPP office in Oakland. He met a sister "named Jackie, who (he) was with most of the time while (he) was in the Bay area." He also met David Hilliard, went to meetings, went out into the community and sold Panther papers. He also "went to a party at this pad, we went to Dr. Shapiro's. I remember his pad." About a week after he had gotten up there, he heard that Franco Diggs had been killed on the 19th of December. He testified that he was continuously in either San Francisco, Berkeley, or Oakland from the time of his arrival on the 13th, 14th or 15th of December, 1968, until his return to Los Angeles on December 26, 1968, and "think(s)" that he was at David Hilliard's house on the evening of December 18, 1968. [n. 21]
n. 21. The reporter's transcript contains the following colloquy with Pratt:
"Q Where were you on December 18, 1968?
"A I was in the Bay Area.
"Q Specifically where were you?
"A Specifically, the best of my recollection? "I think I was at David Hilliard's house.
"Q You said 'I think'. Is that your best recollection?
"A Yes."
Defendant Pratt also testified that he went to a party on December 22, 1968, with a sister and after the party they went to a pad and slept; the two of them stayed there all the next day and went to another party on Christmas day, December 25, 1968.
**101 In respect to the 1967 GTO Pontiac convertible identified as the getaway car from the "tennis court murder" he admitted that he brought it into California with North Carolina license plates on it, that its original color was red and white, and that it was repainted blue but not under his direction. He stated the BPP took over the payments on the car and other Black Panthers drove it.
In respect to the .45 caliber automatic used in the killing of Caroline Olsen, he denied that it was his weapon or that he ever had possession of it including on December 18, 1968. On cross-examination he admitted that he was familiar with such a weapon from his Army training, could field strip (assemble and disassemble) it and knew that the barrel could be replaced. He denied ever carrying such a weapon.
In respect to facial hair, he stated that when he came to California in September 1968 he had a moustache and chin growth and had the same hair growth on his face on December 18, 1968, but he may not have had *833 hair on his chin on that date. He recalled shaving the whiskers off of his chin for Bunchy Carter's funeral in January 1969. [n. 22]
n. 22. Following is the testimony of defendant Pratt in respect to his facial hair on December 18, 1968:
"Q Did you have hair on your face on December 18, 1968?
"A Yes, I did.
"Q What hair did you have on your face then?
"A The same hair I have on my face now.
"Q That is, a moustache with the ends going downward below your mouth and more or less making a circle with whiskers at your chin; is that correct?
"A Yes. You see I can't be too positive on that though.
"Q Please keep your hand down from your face.
"A This may have been off, you known, but to my best recollection, I had this (indicating).
"THE COURT: You mean the hair on your chin might have been off?
"THE WITNESS: Yes."
In respect to a safari or bush jacket, he denied having one of his own until 1969 but prior to that Bunchy Carter had one and he (Pratt) would wear Carter's bush jacket on occasion.
Defendant Pratt testified that he met "Julio" Butler in November 1968 but was never a close friend; in fact "I kind of suspected the dude all along, you know. He always seemed suspicious to me, you know"; and that when he (Pratt) became Deputy Minister of Defense of the BPP in Southern California in April 1969 "Julio" Butler wanted his job.
THE OLLIE TAYLOR INCIDENT:
Defendant Pratt's testimony in the instant case in respect to the circumstances surrounding the Ollie Taylor incident was markedly different from that of Julio Butler and the victim, Ollie Taylor (see supra). Defendant Pratt's testimony essentially was that when he (Pratt) arrived at Butler's apartment with Blue (Roger Lewis), Ollie Taylor was already there as was Butler, Long John Washington and Ronald Freeman; that Ollie Taylor was sitting down and his whole face was bloody; that Butler, who had been drinking, started to justify what was done by saying Ollie Taylor "had been shot into the Party (BPP) by the US organization"; that he (Pratt) told Butler that wasn't the manner to deal with suspects of the US organization and immediately relieved Butler of his position (in charge of security and a section leader) and placed him (Butler) on house arrest.
*834 OTHER DEFENSE TESTIMONY
In addition to several local Black Panther members testifying that they did not see defendant Pratt in the Los Angeles area for a short period of time before and after December 18, 1968, three Black Panthers testified that they saw Pratt in the San Francisco-Oakland Bay area attending a series of BPP meetings and functions from about December 12, 1968, to December 26, 1968.
Defense witness Shirley Hewitt of Oakland, California, testified that in December 1968 she was a member of the BPP and **102 that she had worked on a book with Bobby Seale for about two weeks before she started working as a secretary at the National Headquarters of the BPP in Oakland on December 1, 1968. She testified that she "thinks" she saw defendant Pratt at the BPP Headquarters in Oakland on Monday, December 16, 1968, when he was introduced to her by Rosemary Gross. Defendant was wearing a powder blue suit and blue suede shoes. She "thinks" she saw defendant again the following Wednesday, December 18, 1968, at David Hilliard's house at a central committee meeting where June Hilliard (David Hilliard's brother), John Seale, Pat Hilliard, Kathleen Cleaver, Rosemary Gross and a person called "Mojo" were also present. She testified that Pratt always wore a moustache and a goatee and his facial appearance was the same at Bunchy Carter's funeral which she also attended.
Defense witness Jacqueline Wilcots from Richmond, California (in the Bay area) stated that she was a member of the BPP, met Pratt in December 1968, took him to a birthday party for her cousin on December 16, 1968, and thereafter drove him to various BPP functions in the Bay area including several meetings at David Hilliard's house. She took him to David Hilliard's house "a little after dark" on December 18, 1968, and the meeting lasted "all night" and on that date defendant wore a "Fu Manchu" type of moustache down the sides of his mouth but did not have a goatee to her knowledge.
On cross-examination witness Wilcot stated that she did not know until a month before she testified that Pratt was charged with murder and did not know until the previous Friday (she testified on Monday, July 10, 1972) the specific time the murder occurred. She heard about the trial from a "sister (Renee Merritt) on the street" and voluntarily came down for the trial "to help a brother out". To her knowledge Pratt did not have a goatee when he left the Bay area in December 1968. *835 She further testified that defendant's facial hair was approximately the same in a photograph (deft.'s exh. (B)) as when she saw him in the Bay area and also "basically the same" as he appeared in court.
Defense witness Kathleen Cleaver came voluntarily from Algiers, Algeria, specifically to testify at the trial. She stated in December 1968 she lived in the Bay area and was a member of the central committee of the BPP; and that she saw defendant Pratt at a series of meetings and remembers seeing him at the home of Dr. and Mrs. Shapiro and at David Hilliard's home in Oakland where the others present were his brother, June Hilliard, his wife, Pat Hilliard, Bobby Seale, possibly Emery Douglas and members of the BSU at San Francisco State College. On cross-examination she stated that the first time she told defense counsel of her testimony was the day before she testified in the courtroom and was not even aware of the actual date of the murder until within the week before she testified. [n. 23]
n. 23. Following is a portion of the colloquy between the prosecution attorney and witness Kathleen Cleaver during cross-examination:
"Q ...
"When was the first time that you communicated to the defense lawyers what you have told us today, or essentially what you have told us today?
"A I would say in this courtroom.
"Q Have you talked with the defense lawyers at all about what you were going to testify to?
"A Right, but I didn't arrive in Los Angeles until Tuesday. Was today Wednesday? I arrived yesterday, and that was the first opportunity I had to even talk with the lawyers.
"...
"Q Is it a fair statement that in November of 1971 you knew that he was charged with a murder, but you didn't have the slightest idea when it was supposed to have occurred?
"A Only that he was charged with the murder in 1971, and that when this murder took place I wasn't very familiar with it, no one talked very much about that murder case. It was not considered a particularly important case at that time.
"Q I appreciate that that murder was not very important at that time.
"A That case. He had-Mr. Pratt had so many cases, you see.
"...
"Q Thank you. In November of 1971 is it fair to say you generally discussed with Mr. Mc Kissack the fact that Elmer Pratt was charged with a murder, but not when it was supposed to have occurred; is that a fair statement?
"A That is a fair statement.
"Q Is it a fair statement that in November of 1971 you were not aware of when the murder was supposed to have occurred?
"A No. I was only aware of when he was charged with the murder.
"...
"Q Is it fair to say that nobody contacted you from the time that Mr. Pratt was formally charged around February of 1971 and until relatively recently regarding your knowledge of the events of December of 1968?
"A That is a fairly fair statement, but one thing, you have to understand something else-
"MR. COCHRAN: She can explain the answer, your Honor.
"THE WITNESS: No, I would like to put that into a proper context, because I don't think you are fully aware of the relationship that I have had to the defense of the defendant, the defense of Geronimo.
"I have been in touch with his attorneys about his cases, with his comrades on his defense committee involved in political fund raising and speech making about his cases, and maintained a considerable amount of contact with the situation as a whole situation, and not about the specific details of each particular case, so I have been in contact with the attorneys, his comrades, and people over a period of time beginning in December of 1970 up until this very minute.
"Q And at no time up until just within the last week did you know the date of this alleged murder; is that right?
"A That's correct."
*836 **103 Although the defense did not dispute that the getaway car from the murder scene on December 18, 1968, was the vehicle Pratt owned and brought into California bearing North Carolina license plates, a series of defense witnesses testified that the BPP had made payments on the getaway car and that it had become a "community car" and that those members in the Los Angeles Central Headquarters had access to the car including Julius Butler who had driven it on occasion.
There was defense testimony to the effect that several other members of the BPP had beige safari jackets and defendant Pratt stated that he did not purchase one until early 1969 but occasionally had worn one owned by Bunchy Carter. (A safari jacket was found in defendant's possession similar in description to the one witnesses described as being worn by the shorter of the two gunmen.)
The defense in addition to extensive cross-examination of prosecution witnesses put on a vigorous defense directed at impeaching the prosecution witnesses' identification of defendant in the hobby shop with particular emphasis on his facial hair on December 18, 1968. Witness Reed had prior to trial referred to defendant as "clean looking" or "clean shaven" and also stated at trial that she never recalled whether he had a goatee or moustache. A series of defense witnesses stated that defendant was never without hair on his face consisting of a moustache and chin hair. Defendant and his sister, Emelda Granger, testified that defendant cut off his chin hair for Bunchy Carter's funeral in January 1969. Defendant's older brother, Charles E. Pratt, Sr., also a Black Panther, testified that he helped get him into U.C.L.A. and into the dormitories under a scholarship for minorities paid for by the federal OEO. He also introduced into evidence a photograph which he said was taken the weekend following Christmas 1968 showing defendant Pratt with a thin moustache and chin hair. The trial judge also permitted defense *837 witness Robert Buckout, an associate professor of psychology at California State College at Hayward, to testify at length to the effect that eyewitness identification is generally unreliable.
Rebuttal
The prosecution's main rebuttal witness was Joseph Oldfield, the technical manager for Polaroid Corporation, who testified that Polaroid had a method of coding the film it manufactures to determine the date of manufacture. He testified the polaroid photograph (deft.'s exh. (B)) which defendant's brother, Charles E. Pratt, Sr., had testified was taken shortly after Christmas 1968 showing the condition of defendant's facial hair could not have been taken on that date. Witness Oldfield testified that the code number on the photograph showed that the film was manufactured May 28, **104 1969, between 3:00 and 11:00 p. m. He further testified that company records showed that machine No. 33 which produced defendant's exhibit (B) was not even in operation during the year 1968.
EVIDENCE ON HABEAS CORPUS
FBI Correspondence and Documents
Defense counsel and the deputy attorney general have supplied this court copies of considerable correspondence and FBI documents for review in connection with the defendant's petition for a writ of habeas corpus. The correspondence basically consists of letters between Congressman McCloskey and William H. Webster, Director of the FBI, and between California Attorney General George Deukmejian and Lee Colwell, Acting Director of the FBI. In addition the record contains letters from Deputy Attorney General Michael Nash and from defense counsel to this court, as well as correspondence from Herbert D. Clough, Jr., Special Agent in Charge of the FBI, to this court, copies of which were supplied to opposing counsel. During oral argument Deputy Attorney General Nash displayed on the counsel table stacks of FBI documents consisting of thousands of FBI reports pertinent to the Pratt case which the FBI had supplied all counsel. Defense counsel and the deputy attorney general after going through those voluminous records with a fine tooth comb furnished this court copies of those specific FBI reports each felt germaine to defendant's petition for habeas corpus. These reports were screened by the FBI before release and portions which would disclose security matters and names of informants were *838 blotted out (deleted) in accordance with applicable federal laws and regulations.
The above records reflect that by letter dated April 6, 1979, Congressman McCloskey in his official capacity asked FBI Director Webster to "institute an internal FBI investigation of the Pratt case to determine whether there is any evidence in the files to indicate the possibility of Pratt's innocence or doubt as to Pratt's guilt." Congressman McCloskey acknowledged that he was aware that "Mr. Pratt's attorneys (are) engaged in an FOI Act lawsuit with the FBI at the present time."
Following an exchange of correspondence between Congressman McCloskey and FBI Director Webster culminating in a meeting between the two on January 23, 1980, Director Webster formed a "Special Pratt Task Force" to prepare a written synopsis of what the FBI's search of their files disclosed. By letter dated March 10, 1980, FBI Director Webster, a former federal judge, sent Congressman McCloskey a "Synopsis of Pratt Inquiry" resulting in a file review far exceeding normal file review procedures consisting of a page-by-page, line-by- line review of all files in the FBI Washington, Los Angeles and San Francisco offices relevant to the Pratt case. The 11-page synopsis concludes with the statement: "The Task Force did not uncover any information that tends to exculpate Pratt of the 1968 'Tennis Court Murder'. It found no indication that the FBI had Pratt under surveillance on December 18, 1968, the day of the murder. Nor did it find any information supporting Pratt's alibi that he was not in Los Angeles at the time of the murder. Finally, it found no evidence to corroborate Pratt's argument that his trial and conviction were the result of COINTELPRO."
FBI Director Webster's letter dated March 10, 1980, to Congressman McCloskey and the "Synopsis of Pratt Inquiry" are attached hereto as APPENDIX C.
This court's analysis of pertinent correspondence and reports pertaining to the Pratt case supplied by the FBI pursuant to the FOI Act and on request of counsel prior to and subsequent to March 10, 1980, is distilled below focusing on critical dates and time frames :
In respect to December 18, 1968 (the date of the "tennis court murder"), there is no documentation indicating that defendant Pratt was *839 "targeted" by COINTELPRO for "neutralization". The absence of any such documentation is consistent with the evidence which discloses that Pratt had just come to California in September 1968, enrolled **105 as a student at U.C.L.A., met Al Prentice ("Bunchy") Carter and joined the BPP. Pratt held no rank in the party hierarchy on that date although there is evidence that he was a bodyguard for Bunchy Carter.
Nor does the FBI documentation indicate that Julius ("Julio") Butler had been enlisted by the FBI as an informant or that the FBI had any other contacts with him whatsoever as of that date.
In respect to August 10, 1969 (the date Julius Butler gave the sealed envelope to Sergeant Rice containing the letter implicating Pratt as the "tennis court murderer"), there are no FBI reports showing that Julius Butler was an FBI informant or that the FBI had even contacted him as of that date. To the contrary the content and tenor of FBI contacts after that date and an affidavit of Sergeant Rice dated November 19, 1979, supplied by defense counsel indicate that while FBI agents were aware of "Julio" they had no part in his (Butler's) decision to write the letter and give it to his friend, Sergeant Rice, for safekeeping.
FBI records disclose that the FBI first contacted Butler after August 10, 1969. The content and tenor of an FBI contact with Butler on August 13, 1969 (dictated 8/14/69), indicates no prior FBI contacts and discloses Butler's disenchantment of the BPP, his fear of death from BPP members, and that he was questioned about his possession of a .45 caliber Thompson submachine gun in violation of the National Arms Control Act. [n. 24]
n. 24. Following is the FBI report dated August 14, 1969, of an interview with Butler
"Date--8/14/69
"JULIUS CARL BUTLER, 28071/2 Hillcrest Drive, Los Angeles, California, telephone number 731-1069, was contacted at the corner of Potomac Avenue and 29th Street, Los Angeles, California. He was informed of the identity of the interviewing agents and the purpose of the interview. He supplied the following information.
"BUTLER said that he joined the Black Panther Party (BPP) in the summer of 1968, and was an active member until he was expelled August 1969. He said that he contacted BOBBIE SEALE about the trouble he was having with the Los Angeles leaders of the BPP and stated his intention of writing a position paper stating why he had acted in a manner contrary to party policey (sic). SEALE told him not to bother because the paper would not be read. BUTLER said that he could no longer relate to the leaders of the BPP because the aims and purposes of the BPP had changed and were no longer relevant to the needs of the people. He said that he had hung up on several of the Los Angeles BPP leaders which includes ELMER PRATT, also known as Geronimo and ROGER LEE LEWIS, also known as Blue, when asked to do certain things. He declined to elaborate what he was asked to do. He added that he worked for the Black cause before the BPP came into existence and intended to work for 'his people.' He added that he was a member of the Black Congress, Los Angeles, California, before he was a member in the BPP.
"BUTLER said that the BPP had degenerated from its original high goals and was now similar to a 'Black Mafia.' He said that the only thing that concerned the leaders of the Party was how to line their own pockets in the easiest manner. He described the Party as a group of petty criminals who would take any action necessary to further their own desires. He added that many members of the BPP feel as he does and that the Party was falling apart.
"BUTLER said that funds for the Party's activities came from sale of newspapers, fund raising rallies and donations from interested parties. He stated he did know any of the interested parties who donated money and could not say if any of the money came from organizations outside the United States. He said that the money that is now being obtained is being used to make life easy for the leaders, instead of being used for the good of the Black community or the Party. He illustrated this by saying that the leaders would be bailed out of jail several times while the rank and file member would be left in jail. BUTLER described himself as above the rank and file but below the top leaders when he was in the BPP. He said he was currently out on bond, using his own money, in an (deletion) case involving (deletion) which comes up in court (deletion).
"BUTLER said that because he had disagreed with the BPP leaders and because he had refused to carry out some of their orders, which he would not explain further, he has received several threats on his life. The threats were implied rather than specific and were received both from known people and as anonymous telephone calls. He said that both 'Blue' and 'Geronimo' had indirectly implied that he was going to be killed. He believes that his life is in constant danger. He said that he believes he is becoming paranoid over the whole situation. He added that he usually carries a pistol on his person when he is on the street. When he is in the house, he has a barricade on his bedroom window and is unable to sleep well. He said that he believes that he will be shot or attacked from ambush when the Panthers feel the time is right.
"BUTLER said that the only white people he knows of personally that are friendly to the BPP are (deletion). He said he was at another white persons' house for a social party but did not know who gave the party or where the house is located.
"BUTLER said that he has written a letter containing information relating to an involvement of BPP members in an affair that could 'put them in the gas chamber.' He said he was a witness to this affair but would not explain further. He added that the letter was given to a friend.
"At this point in the interview, BUTLER was shown a form by (deletion) on which was written his rights. He read the form and stated that he understood his rights, and was willing to answer questions. He declined, however, to sign the waiver form.
"BUTLER supplied the information as follows voluntarily:
"BUTLER said that he at one time had personal possession of a Thompson .45 caliber sub-machine (sic) gun. He said he bought this weapon some time ago from an individual he declined to name. He said he maintained this weapon at various locations, including his apartment. He said that his Thompson was being held by a friend of his in a safe place. He declined to give further detail. He would not state if the weapon had been used to commit any crime. He further declined to give a signed statement of the above information.
"When BUTLER was asked to come to the Los Angeles Office of the FBI voluntarily for further questioning, he stated that he wanted to think it over. He further stated that he would like to talk to a friend of his to determine what the best course of action is. BUTLER was told he would be recontacted."
*840 **106 During the trial the evidence was to the effect that Sergeant Rice requested Butler's permission to turn the sealed letter over to his *841 (Sergeant Rice's) superiors to be opened because the existence of the sealed letter was known to L.A.P.D. internal security and that he (Rice) was under investigation for an unrelated matter. (See trial evidence, supra.)
Defense trial counsel's objection to any questions about the circumstances surrounding the delivery of the letter was sustained. In support of the petition for habeas corpus before this court present defense counsel have filed with the court a declaration of DuWayne Rice under penalty of perjury dated November 19, 1979, stating that FBI agents observed Butler hand the sealed envelope to Sergeant Rice and asked Rice what it was Butler had given him. Rice told the agents to ask Butler and they called after Butler using the name "Julio" but Butler did not respond and left the area. [n. 25]
n. 25. The declaration of DuWayne Rice dated November 19, 1979, is as follows:
"I, DuWayne Rice, declare under penalty of perjury as follows:
"I was a Los Angeles Police Officer from 1955 until 1975 when I left the police force. I am presently employed by Sammy Davis Jr.
"Sometime in 1969 Mr. Julio Butler, then a friend of mine, called me and asked me to meet him at a streetcorner (sic) in Los Angeles; I then proceeded to the streetcorner (sic) where I met Mr. Butler. Mr. Butler
gave me an envelope that was sealed and asked me to hold it for him as an 'insurance policy' and only open it upon his death. He did not tell me the contents of the letter. I agreed to hold the letter and do as he had asked.
"As Mr. Butler walked a short distance away I was approached by two men who identified themselves as F.B.I. agents and asked me for whatever Julio Butler had given me. I refused and told them to ask Butler for it, as he was still close by, and within sight. They yelled to him by the name Julio, indicating to me familiarity between the F.B.I. agents and Julio Butler. Julio Butler did not respond and they did not approch (sic) him. Butler then left and I also left soon after.
"At this time I did not give the F.B.I. agents the letter or open the letter. In fact, to this day, I have never read the letter Mr. Butler gave me. Soon after receiving the letter, I gave it to Captain Henry of the L.A. Police Department who placed it in his safe deposit box.
"Soon after this incident, The F.B.I. threatened to indict me for obstruction of justice for refusing to turn over the letter to them.
"Some time the next year I was involved in a fight with a white Los Angeles police officer. Due to this fight, and other allegations against me, I became the subject of an internal police investigation. During this investigation I was questioned by the Los Angeles Police Department regarding what Julio Butler had given me and ordered to turn it over to the police department. When I refused, I was threatened with being fired for refusing a direct order.
"I had not told anyone in the L.A.P.D. about receiving the letter except Captain Henry. Any contacts between Julio Butler and myself were never the subject of the charges brought against me by the internal investigation of the L.A.P.D.
"During this investigation F.B.I. agents came to see me and questioned me about what Julio Butler had given me in 1969. The F.B.I. agents demanded that I give them 'the letter.' I asked them how they knew it was a letter and they said Julio Butler told them he had given me a letter. I informed them if that was so, Julio Butler should ask me to give them the letter.
"Soon after, Julio Butler called me and asked me to give the letter to the police authorities. I told him I would but asked him why he had told them about the letter since I had almost gootten (sic) fired for refusing to give it to the FBI and the LAPD. He said he was sorry, but the FBI was putting pressure on him, and 'jamming him' and that I should give the letter to them.
"I then asked Captain Henry to give me the letter that I had given him and he did. I then gave it to a superior in the police department.
"Soon later I was informed by police officials that I would be criminally prosecuted for withholding evidence about the commission of a felony. I told them if they looked at the envelope they could easily see that the envelope had the original seal on it, that I had never opened it, and that I did not know the contents of the letter.
"I did not give the letter to either the FBI or the LAPD prior to Julio Butler asking me to do so because I had given my promise to Mr. Butler that I would not open the letter or give it to anyone until he asked me to do so or until his death.
"I will testify in a court of law to the above facts if I asked to do so.
"I swear that, to the best of my knowledge, the above is true and correct.
"Dated: November 19, 1979.
"/s/ DuyWayne Rice"
*842 **107 Three important pieces of direct and indirect evidence point to the fact that the FBI had no part in Butler's writing the letter or had knowledge of the contents thereof which implicated Pratt in the murder of Caroline Olsen on December 18, 1968.
First, it is noted that Julius Butler did not give the letter to the FBI but to a trusted friend (Sergeant Rice) for safekeeping only to be opened in the event of his death. Sergeant Rice's declaration dated November 19, 1979, (see fn. 25, supra ) indicates that although the FBI agents were aware that Butler was a Black Panther and that he was called "Julio" since Butler gave the letter to a friend rather than the FBI and refused to respond that the agents did not know what was contained in the letter. Furthermore, FBI records have failed to reveal any official contact with Butler on or before August 10, 1969, the first contact being on August 13, 1969.
Second, logic dictates that if the FBI with the aid of local law enforcement officers had targeted Pratt and intended to "neutralize" him by "framing" him for the December 18, 1968, murder of Caroline Olsen they would not have waited over 14 months after the letter was handed to Sergeant Rice to have the contents of the sealed letter disclosed. Moreover, Butler's relationship with Pratt had changed dramatically as of August 10, 1969. Following the assassination of Bunchy Carter and John Huggins at U.C.L.A. the National BPP in April of 1969 had elevated Pratt to the top leadership position by naming him Minister of Defense of the Southern California branch of the Party. As of that date, as hereinbefore related, Butler had become disenchanted with themethods *843 used by the Black Panthers and had both quit and had been expelled from the Party. In addition, Butler, in fear of Pratt who had threatened his life, had given the letter to Sergeant Rice as an "insurance policy" for his (Butler's) own protection.
Third, and foremost, it is inconceivable that the FBI agents could have obtained the "conspiratorial" aid of (a) the two eyewitnesses who positively identified Pratt; (b) witness Lachman who described the getaway car; (c) the officials in the Motor Vehicle Departments of North Carolina and California to establish that Pratt's car was used in the murder; and (d) the aid of Ballistics Expert Wolfer who identified the murder weapon in order to "frame" the defendant. Nor has the defense supplied any cognizable evidence to this court which refutes the veracity or accuracy of the above evidence, all of which corroborated Butler's testimony.
From October 20, 1970 (over 14 months after the sealed envelope was given to Sergeant Rice by Butler), when the sealed envelope was opened, to and including the date of and through the trial the FBI documents supplied do not establish that Butler either "worked" for or was an "informant" (in law enforcement parlance) for the FBI. (See Discussion, infra.)
**108 The trial evidence showed that the letter was opened because Sergeant Rice was under investigation by internal investigators of the L.A.P.D. who knew of the existence of the sealed letter and he asked Butler if he could turn it over to the investigators. Sergeant Rice's declaration under oath dated November 19, 1979 (see fn. 25, supra ) indicates that Butler also authorized Sergeant Rice to turn the sealed envelope over to the L.A.P.D. internal investigators because the FBI was "jamming him". It would be unnatural for the FBI not to be inquisitive about the contents of the sealed envelope once aware of its existence. The FBI reports furnished this court contain information that FBI agents contacted Butler for a period of time between August 13, 1969, and April 28, 1972, first concerning his involvement in the BPP, then in connection with his violation of the National Firearm Control Act and finally relative to the propensity for racial unrest and violence in the black community. As previously noted the FBI report dated August 14, 1969, (see fn. 24, supra ) shows Butler was interviewed by FBI agents and told them of his disenchantment with the BPP, his fear that he was going to be killed and the fact that he had written a letter containing *844 information relating to an involvement of BPP members in an affair that could "put them in the gas chamber"-"but would not explain further" and "that the letter was given to a friend." Butler then was given his rights and questioned about a .45 caliber submachine gun for an individual who he (Butler) declined to name.
An FBI report dated September 12, 1969, indicates FBI agents again contacted Butler, gave him his rights and again inquired about a .45 caliber Thompson submachine gun Butler bought in October 1968. Butler told them he disposed of the machine gun but would not elaborate because "he (Butler) did not want to 'jam' anyone."
An FBI report dated October 30, 1969, shows that Butler was again contacted by FBI agents, given his rights, and questioned about the .45 caliber Thompson submachine gun at which time Butler "refused to admit that he ever owned or possessed" such a weapon and stated that "he was not admitting anything now" and refused to give any information concerning any possible violation of the National Firearms Act by himself.
An FBI report dated November 7, 1969, indicates that he was willing to provide information to the FBI on a confidential basis but that the FBI wished "to determine his potential as a PRI."
An FBI report dated December 1, 1969, indicates that FBI agents contacted Butler on November 24, 1969. The report states: "He (Butler) advised that he heard federal authorities were checking at the Western Surplus Store to determine if he (Butler) had been purchasing weapons." He (Butler) said if the FBI is interested, he does not even know where the Western Surplus Store was, but does own a Magnum which he purchased elsewhere.
Seven FBI reports from December 1, 1969, to April 17, 1970, with many deletions mainly referred to such matters as Los Angeles BPP membership and weaponry, e. g., that since the killing of Al Prentice Carter new memberships in the Party were allowed only on special recommendation of existing members; "that the Los Angeles BPP had tried to buy silencers for rifles and pistols" and since it was "unable to purchase them they tried to make some"; and that "an unknown source" stated that "the Oakland BPP allegedly had a rocket launcher and that ELDRIDGE CLEAVER, BPP Minister of Information, had a .50 caliber *845 machine gun mounted on a truck." The only mention of defendant Pratt was "that Pratt had a machine gun was common knowledge in the BPP" and that "Pratt also had a caliber .45 pistol." There was no mention of Pratt in respect to the "tennis court murder" contained in these reports.
(The foregoing series of FBI contacts with Butler concerning their investigation of possible National Firearms Act violations in respect to his purchase and disposal of a .45 caliber Thompson submachine gun could explain Butler's statement to Sergeant Rice that "the FBI was" putting pressure on him, and "jamming him." (See fn. 25, supra.))
**109 Monthly FBI reports for the period July 31, 1970, through April 28, 1972, except the report of January 20, 1971, show FBI contacts with Butler and each contains the following general statement: "source stated that though he believes the general propensity for racial unrest and violence to exist in ghetto areas he was unaware of intended or possible outbreaks at this time."
An FBI report dated January 20, 1971, states:
"JULIUS CARL BUTLER, 2807-1/2 Hillcrest Drive, telephonically advised that he has not been affiliated with the Black Panther Party (BPP) since his expulsion in 1969. He said he knows nothing regarding an active BPP underground and has no intention of reaffiliating with the BPP.
"He stated he had furnished information implicating ELMER PRATT in a murder at Santa Monica, California, in 1968, and thought he was going to be called to testify against PRATT in the matter.
"He stated he still is employed as a beautician at 4520 West Adams, Los Angeles."
In respect to any FBI documents indicating defendant Pratt's whereabouts on December 18, 1968 (the day of the "tennis court murder" ), only two were discovered which are remotely relevant to defendant Pratt's "alibi" defense.
One report indexed under the name of Kathleen Cleaver states: "On 12/19/68, (deletion) (reliable) reported that on evening of 12/18/68, BOBBY SEALE stated he was going to pick up some people, not identified, including KATHLEEN (Cleaver) and go to the residence of (deletion) at 7:30 PM (12/18/68)." The name of the person at whose residence the *846 people were going was later released as that of Dr. Shapiro. (See fn. 27, infra.)
The other report indexed under the name of John Jerome Huggins, Jr., states: "On 12/26/68, (deletion) a highly sensitive, reliable source, whose identity must be protected at all costs, reported that as of 12/20/68, an L.A. brother known as Geronimo arrived in Oakland. Source further reported that as of 12/23/68, Geronimo was not connected with National BPP headquarters but he reported that he was still in town. He was told by the National BPP representative who talked to him that 'that's cool, stay where you are.' Source indicated that the inference was that Geronimo was hiding from someone. (P) Los Angeles will determine if possible if Geronimo is an alias used by the Subject."
The two FBI reports quoted above and their relevancy to defendant's petition for habeas corpus are discussed infra.
In respect to FBI informants in the defense camp, by letter dated January 16, 1980, Lee Colwell, Acting Director of the FBI, sent a letter to Attorney General George Deukmejian of the State of California responding to a request from California Deputy Attorney General Michael Nash on January 7, 1980, enclosing 40 pages of documents setting forth contacts between the FBI and Julius Butler and 2 pages of documents in relationship to defendant Pratt's whereabouts in late December of 1968, [n. 26] which have been previously summarized herein.
n. 26. The letter from Acting Director Colwell to Attorney General Deukmejian dated January 16, 1980, reads as follows:
"Enclosed as requested in a telephone conversation between Roger Cubbage, Attorney, Criminal Division, U.S. Department of Justice, and Deputy Attorney General Michael Nash, on January 7, 1980, are 40 pages of documents which set forth contacts between the FBI and Julius Butler and two pages of documents that indicate Pratt's whereabouts in late December of 1968. These documents were located through a review of files related to Julius Butler at Los Angeles, California, and FBI Headquarters. All contacts with Butler should be contained in these files. However, all references to Julius Butler's name in Los Angeles and at FBI Headquarters
have not been reviewed due to time constraints and manpower and cost considerations. Therefore, while not probable, the possibility exists that additional contacts may exist that were not revealed during this voluminous review.
"In response to the question as to the reason 'Julius' appears at the top of Page 13 of a Los Angeles report dated June 2, 1969, on Pratt, which was furnished to you by Congressman McCloskey, the name appears for FBI indexing purposes. The meeting referred to on Page 13 of this report was held at the residence of Julius Butler early in 1969, and while he was not the source of the information contained on this page of the report, his name was marked for indexing at FBI Headquarters as 'Julius Carl Butler.' However, in the Xeroxing process only 'Julius' remained on the copy furnished to you.
"The FBI review of the files relating to the Pratt matter disclosed the following information:
"During the period of time surrounding the murder trial and pretrial stages, the FBI had informants reporting on Pratt and his close associates as part of the FBI's investigative responsibilities concerning the Black Panther Party. These informants reported on Pratt's conversations and activities.
"Among the items reported were the following from one of the above informants:
"Item 1) Pratt was not happy with his present lawyer.
"Item 2) Problems in the details of Pratt's arrest by the FBI were discussed with Pratt's close associates, including one of his former attorneys.
"Item 3) Pratt was interested in obtaining a witness or witnesses to refute Julius Butler's testimony by showing that Butler harbored a grudge against him.
"Item 4) Information discussed in one of Pratt's former attorney's offices concerned strategies to be used for a potential appeal if Pratt were convicted.
"Item 5) The testimony of key witnesses was analyzed by individuals associated with the Pratt defense team.
"It should be understood that no record was located by the FBI review of the Pratt matter that any information received from this informant was referred to the Los Angeles County District Attorney's Office prior to, during or after the Pratt murder trial until the briefing of that Office by the Department of Justice and the FBI on December 12, 1979.
"Further, the FBI review located only one instance where any FBI informant, including this one, obtained and reported any information that could be construed as defense strategy in the Pratt trial. It should be noted in this instance that there was no indication located in FBI files that any attorney was present during the discussion. It should also be noted that this is the only instance located wherein this informant reported anything that might be construed as defense strategy in the Pratt trial. On the other occasions the informant only reported a presence at or a knowledge of the meeting.
"It should also be clearly understood that the FBI review of this matter did not locate any indication that any defense strategy information or that any information that could possibly have been construed as Pratt defense strategy was ever disseminated outside the FBI until the briefings in December of 1979. This informant did not testify at the Pratt trial, nor did any other FBI informant."
*847 By letter dated July 28, 1980, Deputy Attorney General Nash forwarded to this **110 court, with copies to defense counsel, a copy of a letter of the same date (July 28, 1980) received from Francis M. Mullen, Jr., Executive Assistant Director of the FBI, pertaining to two informants who were in the position to obtain information on defendant Pratt's defense strategy. [n. 27] The letter contained an offer to submit the