In Re Pratt

Dist., Div. Dec. No. 37534. Second One. 1980.] [Crim. on Habeas Corpus. PRATT

In re ELMER GERARD Counsel Hanlon, Mitchell,

Stuart Lewis Fred Margaret Myers, John B. Ryan, Okrand, Rosenbaum, Goode, Mark Leonard I. Victor" Weinglass, Jonathan Jr., Lubell Paul N. for Petitioner. McCloskey, Curiae on behalf Petitioner. as Amicus Sperber Laurence R. Philibosian, General, H. Chief Robert Deukmejian, George Attorney Moore, General, Gener- Attorney Clark Assistant S. Attorney Assistant General, Nash, Attorneys al, Deputy Pounders and Michael William R. Respondent. Opinion J. (Thaxton),

HANSON

Introduction convicted trial a jury petitioner/defen- protracted following In 1972 Pratt) of (hereinafter defendant Pratt Elmer Gerard dant and/or (Pen. Code, murder in the first 187) degree of Caroline Olsen in San- § (known ta on Monica December murder); as the tennis court (Pen. Code, of two counts of 211); the first robbery degree and of § assault with intent (Pen. Code, to commit murder on Kenneth Olsen 217). also found he was armed with a jury weapon deadly (pis- § tol) in connection with each offense. The judgment conviction was affirmed appeal division four of this district an unpublished (2 22504). opinion Crim. No. The California Court Supreme State denied defendant’s for a unanimously petition hearing.

Defendant Pratt is presently serving life sentence in state prison for the murder of Caroline Olsen and the commission of the other crimes of which he was convicted. this for writ By petition of habeas corpus seeks his release from prison on the that the essentially grounds Federal (FBI) Bureau of Investigation reports obtained through Freedom of (FOI) Information Act disclose that prosecution witness Julius key C. Butler the trial in during (FBI), 1972 “was a fact he informing denied, oath, trial,” under petitioner’s original that “the FBI con- cealed and corroborative, withheld surveillance evidence in part, of defense,” alibi and that the FBI “had a in the defense spy [defendant’s] camp” the trial. during

By reason of the serious extremely allegation current defense (a) counsel that “a totally innocent man has languished in the San mid-1972, and Folsom Quentin since prisons and that... he was sent there as the result a case which was deliberately contrived by agents our state and governments” (petn. for writ of habeas corpus federal filed in the Super. Ct. of Los Angeles which has County been incorpo- rated by reference with the petn. for writ of habeas filed with corpus court); (b) that the assertion in the petition for writ of habeas corpus lodged in this court that defendant Pratt’s “conviction was the result a joint by state and governments to neutralize effort federal and discredit him because in the militant membership [Black Panther which committed Party]” “a the court and upon jury,” fraud we have ordered up, pursuant Court, California Rules of rule review along the extensive record of the petition before this court trial, the entire record of the 1972 exhibits, jury including pertinent the record of the petition for writ of habeas corpus filed in previously (See court superior which was Court, denied. also Cal. Rules of 12(a).) rule pro- of these the nature reason of by to the foregoing

In addition seeking or groups by persons interest generated ceedings; public newspaper as evidenced release from prison obtain defendant Pratt’s Paul articles; Congressman States involvement United personal individ- California;1 the list of Jr., large District N. 12th McCloskey, on behalf amici curiae2 appearing uals and organizations Pratt; counsel that a court defendant and the accusation defense of Pratt “framing” up” in the “cover “implicated” this state was of the series of (see than usual fn. a more detailed treatment infra), evidence, analysis and an the trial proceeding, events this leading up in order necessary deemed of the FBI documents court supplied the entire in proper perspective. case place Chronology of Events actions In order mass of evidence and the court great to render contained in the and under- extensive record more very manageable standable, below in order are the out-of- interspersed chronological key court events which or defense triggered subsequent governmental actions and the therefrom. court actions resulting 18, 1968,

On December at about 8 o’clock Kenneth evening Olsen, teacher, Olsen and wife went Caroline who also school 1 Congressman joined lawyers appeared for the McCloskey the defense team of (in capacity attorney private capacity first time as and not in his official of record August Congress) during argument as a member of before this court on oral argued on behalf of Pratt. petitioner/defendant 2 Following organizations who are curiae on behalf is the list of individuals amici Sperber: represented by Attorney of defendant Pratt and are Laurence R. who Pratt, President, Burford, Chair, Free A.C.L.U. James Coalition to Gerónimo Vice California; Albertson, President, Council; of Southern Wallace California Democratic Bodenstein, Beerman, Temple; Community Activ- Rabbi Leonard Leo Baeck Catherine ist; Commission, Cole, Coordinator, George and Ecuminical Concerns Reverend Dr. W. Social Church; Branton, Presbyterian Leo Synod of California Southern United A.D.; Brown, Jr., Edgar Attorney; Assembly, 17th Reverend Willie California State Edwards, Christ; Ham, President, Hillard Ham Publica- Immanuel United Church of Johnson, Director, tions; Ministerial Reverend Wilbur Executive Interdenominational Church; Alliance; Jr., Reverend James Kilgore, Baptist Dr. Second Reverend Thomas President, Jr., Church; Lawson, Levy, West Vice Holman United Methodist Board, Leonard Union; Clothing Workers Reverend Amalgamated Joint and Textile Coast Church; Pastor, Moore, Lewis, California State As- Stanley Friendship Baptist Gwen Church; Pastor, A.D.; La Murray, A.M.E. National sembly, 49th Cecil First Reverend Assn.; Alliance; Paz, President, Bar Legal Vice Mexican-American Raza R. Samuel York; Rosenwein, Supreme Court and New Sam Shockley, of Bar of United States Member Waters, Duff, Hart-Nibbrig, Attorneys; State Assem- & Maxine California S.D.; Wheeldin, A.D.; Watson, Senate, 30th Don bly, State 48th Diane California Heights Neighborhood Orange Association.

804

to the Lincoln Park Tennis Courts in play Santa Monica to tennis. After they had into the put money light meter turned on the lights, were they accosted two armed black who males ordered them to lie face down on the pavement. They relieved their valuables which were on a bench and then the nearby gunmen turned and from a dis- tance of to 10 feet opened fire the Olsens as upon they lay helpless, down, face on the tennis court Caroline Olsen pavement. subsequently died as a result of two wounds gunshot which she received.3 Kenneth Olsen was hit five times and he although bled profusely, survived the ordeal.4

Three caliber expended pistol .45 automatic shell and three casings (one Olsen) lead at slugs underneath Mrs. found the scene of the crime Officer Richard Plasse of the Santa Monica Police Department were marked booked into evidence. A also removed from slug Mrs. Olsen’s in body the room at the hospital and booked emergency into evidence. (about

On o’clock January about in the afternoon one month after the Monica) tennis court murder in Santa A1 Prentice (Bunchy) Carter and John officers the Huggins, in Black Party Panther. (BPP), were shot death in the cafeteria at Campbell Hall on the campus. UCLA occurred killings during joint meeting about (BSU) 400 members of Black the Student Union and members of the BPP and another rival black militant called group (US) United Slaves incorporated. There was a lot of friction between the Black Panthers and US to take over and the BSU assassinations of Carter and Huggins were attributed to the organization. US Naveau,

James F. a state police officer assigned to UCLA campus with the job penetrating subversive militant groups campus, infiltrated and became a member of the Students for a Demo- (SDS) cratic and was Society also member Friends of the BPP. Officer Naveau testified at a subsequent defense motion to suppress Code, (pursuant evidence 1538.5) Pen. the .45 caliber automatic § 3 According report, autopsy passed coroner’s one through bullet Caroline Ol liver, kidney, sen’s left surrounding the tissues pancreas exiting the stomach the abdomen. The upper portion other bullet entered the of her left passed buttock and area, through pelvis the bowels exiting through and the liver the abdomen. She died hemorrhaging peritonitis internal gunshot due to the wounds. head, forearm, 4 The bullets five fired at Kenneth Olsen struck him once hip and twice in the hand. He in the Olsen case. to be the murder pistol weapon later determined Panthers and friction between the Black that “there a lot of said went Officer Naveau the black student union.” to take over US who met the and a Joe Brown killings he heard of Hall when Campbell “who,” Joe When brothers.” asked my two of up said: blew “They just (Officer Naveau) other told him Brown said: “US.” Joe Brown shit pad to the get to John’s split go Huggins’] Panthers “had [John and a lot L.A.P.D. and a lot of US [weapons explosives] people knew John Officer Naveau up night.” blown pigs going get Los im- in He Century Angeles. address was 806 Boulevard Huggins’ to his immediate supervisor this information mediately communicated the and to Davis of Los police (Captain Lynn) Sergeant of the campus (L.A.P.D.) division as well as intelligence Department Police Angeles the Jim Clark of state C.I.I. L.A.P.D., to his according testimony

Officer R. of the Lloyd Lucy murder pretrial suppress of the defendant’s motion hearing had the information from Offi- testified that after he received weapon, to prevent cer he other L.A.P.D. officers order Naveau and West Century residence at 806 Huggins proceeded bloodshed and Lujuana Camp- where observed Melvin Carl Smith Boulevard they box metal-type military bell a rifle and a ammunition emerge carrying it departed car after stopped by police shortly to a car. This area, a loaded .45 caliber automatic Lujuana pistol had Campbell rifle, ammuni- and there was .30 caliber capris, the waistband her tion, and found in the car. supplies masks medical camping gear, gas wagon while behind a station crouching Defendant Pratt was arrested Pratt was unarmed. How- building. in the outside parked driveway ever, including was found inside location weapons arsenal of large rifle, C. shot- Higgins M-l automatic J. Browning shotgun, Garand pistols, three caliber automatic three gun, 7.65 millimeter .45 pistol, knives and a bayonet. Jim Finn

One loaded .45 caliber automatic pistol found Officer window overlooking on a table to a second adjacent floor front to be the expert weap- determined a ballistic later premises on December murder" Caroline Olsen on used in the “tennis court (See infra.) 1968. evidence trial weeks (about and three after the seven months August On “Julio,” Butler, met also known as murder), court Julius Carl tennis Rice, division of the a black officer of 77th with Sergeant Duwayne L.A.P.D., whom he knew socially 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 life, contract out on his be killed may and that if anything to him happened to read it give to his mother. The envelope on the outside had written on it Rice” “Sgt. to be “Only opened (See the event of death.” my in- concerning the circumstances surrounding writing, sealing fra delivery Rice.) envelope Sergeant Rice

Sergeant retained the in his envelope possession unopened for five or six months. Then feeling Rice) that he (Sergeant also be may killed he gave the sealed envelope Captain the Henry, commandant of the 77th L.A.P.D., division of the who it in kept his safe at home unopened. 20, (over

On October 14 months after Butler handed the letter to Sergeant Rice and over 22 months after the murder of Caroline Ol- sen), the sealed letter which Butler gave to Sergeant Rice on August 10, 1969, was for opened the first time. Butler therein stated that de- fendant Pratt had confessed and to him bragged about the being “tennis (See court murderer.” the concerning circumstances surrounding infra the of the opening envelope.) contained in the letter inside the was what envelope information caused law investigators time to on enforcement for first focus Pratt as involved in being the December “tennis court mur- der” Caroline Olsen.

(The letter itself was not submitted to the trial as evidence but jury the circumstances and then surrounding delivery, safekeeping open- Butler, letter, of the letter were ing explained to who wrote the jury. testified before the and at the He grand jury trial. was also cross-exam- counsel, trial, ined in depth defense by during defendant concerning Pratt’s confession to him. The letter itself is a part record of these A proceedings. A.) of the letter is attached as typed copy Appen. 4, 1970, intensive detectives following investigation by

On December an indictment was returned the Grand of Los by Jury Angeles County murder, Pratt with count of one count of assault to com- one charging 18, of the December mit murder and two counts of out robbery arising 1968, “tennis court” crimes. not 8, and pleaded was 1971, arraigned Pratt defendant

On April guilty. trial which 28, began 1972, jury contested hotly following

On July Parker, Kathleen court, Honorable 11, 1972, superior June Cochran, Pratt, Johnnie L. represented defendant judge presiding, de- counts and the on all was found Jr., guilty Hollopeter, and Charles count as to the murder degree determined to be first gree counts. robbery each 28, trial was denied 1972, for new defendant’s motion

On August of life as to mur- the term sentenced to state prison as to other three term law prescribed der and for the count run life sentence. concurrently counts to from of appeal defendant filed a notice timely On August conviction. judgment District, with Four, Appellate Division Second On February Gerald Dunn and Edwin Jefferson and Justices Acting Justice Presiding (2 its opinion the filed constituting panel, unpublished Robert Kingsley 22504) of convic- judgment Crim. No. which affirmed unanimously as attached hereto tion. This heretofore opinion, unpublished,

B. Appendix de- unanimously the California Court Supreme

On April for a petition hearing. nied defendant’s denied de- Court Supreme States the United

On November for a writ of certiorari. petition fendant’s to

On the “Final of the “Select Committee Report” April Activities” Respect Intelligence Governmental Study Operations (herein- Senate, Church, chairman Senator Frank United States Report), the sake of the Church Committee after brevity used the FBI’s coun- and methods published describing purposes Report The Church Committee terintelligence program (Cointelpro). Cointelpro initiated for describes activities as covert action programs violence, and preventing national purpose “protecting security, order by ‘disrupting’ social and maintaining existing political (P. 5.) as threats.” and individuals ‘neutralizing’ perceived groups Cointelpro’s activities during 15-year period was operational (between 1971) described aimed at five being target- ed groups “perceived threats domestic tranquility: [as] (1956-71); ‘Communist Party, USA’ the ‘Socialist program Workers (1961-69); (1964-71); the ‘White Hate Party’ program Group’ program (1967-71); the ‘Black Group’ Nationalist-Hate and the ‘New program (P. Left’ (1968-71).” 4.) program

A chapter in the Church Committee entitled Report “The FBI’s Co- vert Action the Black Panther states Program Destroy Party” 1967 the FBI August initiated a covert action program—Cointel- “[i]n pro—to disrupt ‘neutralize’ which organizations the Bureau characterized as ‘Black Nationalist Hate Groups’.” Church Report Committee states that: “The Black Panther Par- (BPP) ty original targets. was not ‘Black Nationalist’ In among 1968, however, J. September FBI Director Hoover described the Edgar Panthers as: ‘the threat to internal greatest security the country.

‘Schooled in the Marxist-Leninist ideology teaching Chi- nese Communist leader Mao its members have Tse-tung, perpetrated numerous assaults on officers police and have in violent engaged con- frontations with police throughout country. Leaders and representa- tives of the Black Panther travel all Party over the extensively United States their of hate and preaching gospel violence not only ghetto residents, but to students in colleges, universities and schools as high well.’ 1969, the

“By July Black Panthers had become the focus primary of the program, and was ultimately target of of the total 295 au- Cointelpro 187-188, thorized ‘Black Nationalist’ (Pp. actions.” fns. omitted.)

The Church Report Committee on to that in goes say the FBI’s ef- forts to “neutralize” disrupt BPP’s effectiveness various Cointelpro techniques were used for purpose BPP’s discrediting members, rifts itself, and factions within the creating party setting rival against Panthers, groups undermining support de- party its stroying public because the FBI image perceived the BPP to be a armed, heavily violence-prone organization. Com- 1979, defendant Pratt the Church November relying

On to the FOI obtained pursuant FBI documents Report mittee and certain Superi- Los Angeles corpus a for writ of habeas petition Act filed (the same Parker Honorable Kathleen which was heard Court earlier years of the case seven the trial who had over presided judge that defen- essentially was 1972). for the relief sought basis alleged as part and state agencies the FBI dant Pratt had been “framed” Cointelpro. de- four-day hearing a following Parker January

On Judge and denied his for judgment, motion a summary nied defendant’s for an request evidentiary hearing and his petition corpus habeas wishful . .can step defendant “by thinking. that she didn’t think stating and that “an evidentiary to point by speculation” from one another she didn’t serve useful any purpose” at this time would hearing [not] he did not that Pratt was framed and that “see sufficient evidence Mr. have a fair trial.”5 court, as before argued, defense counsel superior court file reflects 5 The days deliberate. jury took and the “a close case” case was prosecution’s that the Judge analysis and disagreed with this Parker, judge, trial was also the who as noted aat ver to arrive length time an inordinate jury did not take pointed out that The court stated:

dict. just you interrupt “THE COURT: Let me “I think for a minute there. maybe agree I can not a shorten this. I do the defense this was weak case. “Furthermore, days says jury days. ten Two and half defense that the took one having jury sitting testimony that time the read them. over, month, approximately, maybe try. “The case took a “They I little think a immediately testimony July—if did almost have ask reread. submit- 17th, date, ted but may on the I think it be incorrect on the I think on the was—I asked, following day they they done deliberations to of— speak before had “Yes; 17th, 1972, jury July a.m. retired to deliberate on at 9:55 July testimony “On 18th and 19th was reread. 20th, following juror day, replaced by “Then on the was excused and was juror, juror require which with all—with a new alternate would further deliberation present. July proceedings “On 21st the were continued to the 24th because there was week- days days. end. So another two is out that ten got days days. “So now we have “I don’t think that the and one half out of' that ten four this, jury you say could in a case of a murder such as long they took time to deliberate. “Furthermore, they they in the first in and second time came fore- time came verdict, gave possibility there in which case of course the Court man felt them was the deliberate, they further did a verdict. time to reach case, one, I agree I don’t defense this was a close number and don’t “So length agree analysis jury time to deliberate. with their of the it took “Now, proceed from there.” Judge attempt to coerce Parker We also note that the file reflects that made subjected apparently letters from individuals connected and that she was to a flood of On April defendant Pratt filed the instant for writ petition of habeas corpus this Court of He Appeal. does not seek review of the superior court’s denial of relief but rather seeks review of an by way original in this proceeding court.

ion as to the action .of this Court.” self in having to has been prosecution and cused reporter’s transcript: ty’s trial. because Pratt was the with an and most of the envelopes bear a search” and she are Francisco postmark “And the record “And “And this Court has said we will not deal with “MR. HANLON: HANLON “MR. We prosecution, identical in international immediately makes this Court the court of further note that this organization people since its become more of a national coverup. from “Committee for the Suit Fresno, California, turn to the typed the state. The Springfield, headquarters release Elmer “Gerónimo” inception should reflect that. That this is our [defense counsel]: being —the Court is the state, ^[11] called “the National content.* All are part target That the Court is the following Judge implicated in a from courts to of the Massachusetts, COINTELPRO which was unknown of coverup. in London following framing coverup. New Chicago, keep against I would submit disgrace What the Court only thing signed York, people. statement Parker’s denial of relief defense counsel ac- “cover Task Force for urged Government Misconduct” and several from each of the cities of San Illinois. Pratt government than it was. only— but New defendant Pratt be up” It is what it, many from of the York, opinion—or we will side with the state. And In too, [H] defense has addition a cable from Amnes Cointelpro Litigation do not have return addresses system prison. Forty (Clapping in in line. Your just postmark separated Watergate “framing” counsel said has Honor, of law that this is granted while nine show demanding of Pratt audience.) appears my that this case of the letters implicated time of the a new trial own separates and Re in the opin- from it- Now the evidence is clear and there is telpro Litigation quivocably proving outrageous has caused Mr. “[II] “[H] is innocent of all “111 N. Hill “Honorable Kathleen Parker Kathleen Parker: “Los “Los ^[11] *Following Therefore, L demand the Angeles, Angeles Superior am familiar with the case of Elmer Gerónimo Pratt and am convinced that he I Dear affront to Mr. Pratt’s human Judge is a California 90012 Pratt to be held and Research has worked for charges against Parker: copy Gerónimo Pratt’s Court immediate release of Elmer Gerónimo Pratt from illegally him. contents of the no [U] innocence, for 9 rights. justification As more evidence is revealed “Sincerely, /s/ “84 6th Ave. “January years, years ^[11] Joe Hamill his continued The National Task Force much of it in forty to uncover the continuing letters addressed to solitary imprisonment conspiracy everyday, imprisonment. confinement. for prison. which Judge Coin- is an une- “Bklyn NY 11217 “cc: Ms. Ashaki Pratt Hanlon, Esq. Stuart “c/o “294 Page Street Francisco, “San California 94102” The Evidence at Trial evidence, cir- of some direct and brief

Following summary key cumstantial, 1,500 reporter’s transcript contained in over of the pages and the trial in 1972. pretrial hearing jury

The Prosecution’s Case

Eyewitness Identification of Pratt: Olsen, wounds,

Victim Kenneth who survived five on two gunshot separate occasions made positive in-court identification of Pratt as wife, one of the two male black who robbed him and his mur- gunmen dered his wife Caroline and then murder him. The first attempted to in-court positive identification of defendant was made the pre- during trial on hearing defendant’s motion to Mr. Olsen’s identifica- suppress tion testimony6 and the second in-court identification was made positive 6 Following pertinent portions during are the testimony pretrial Mr. Olsen’s hearing positive when he made the per first in-court identification of defendant as the son who robbed him and his wife and shot him and murdered his wife on December 1968: “Direct Examination “By Olsen, 18th, MR. KALUSTIAN [deputy attorney]: Q. district Mr. on December you at the Lincoln Park tennis courts in Santa Monica? Yes, “A. “Q. 1 was. you Do recall the approximate time? p.m. “A. About 8 “Q. approximate? Is that “A. Yes. “Q. you Were accosted male two blacks? Yes, “A. “Q. I was. you Do see gentlemen either one of those two today? in court Yes, “A. “Q. I do. him, you point gentleman Would out and you describe if will? gentleman sitting “A. The “Q. Hollopeter. next to Mr. gentleman (indicating)? here “A. Yes. “Mr. May my the record reflect I have hand over Mr. Pratt. KALUSTIAN: Yes, “THE may COURT: the record so indicate. “Q. BY MR. Jury hearing KALUSTIAN: Sometime before the Grand on this matter in late and you 1970 were shown some photographs by Sergeant of individuals Callahan Buckles, Sergeant perhaps Sergeant Eckstein? “A. Detective Eckstein. “Q. At you you that time did select an individual whom believed to be one of the 18th, perpetrators against you of the crime on December 1968? Yes, “A. “Q. I did. Monica, Of two you blacks who accosted tennis court in Santa do other, you recall height whether one was taller or shorter than the or there was a trial.7

during jury Reed, Witness Barbara who with her husband Fred Reed owned and the Lincoln Center in four blocks operated Santa Monica about Hobby difference? height “A. There was a difference. shorter; “Q. correct? One was taller and one was is that “A. That’s correct. “Q. gentleman Which was Mr. Pratt? “A. The shorter. “Cross-Examination “Q. being person depict- you identifying So are now Mr. Pratt in court as the same A; right?

ed in Defendant’s is that “A. Yes. “Q. picture, It’s the same man on that isn’t it? n (cid:127) “A. Yes. “Q. you As far as can tell? “A. Yes. “Q. Now, you looking today, anything look at him is there about at this man you independent photograph recall from December of 1968? Yes; eyes. “A. “Q. you eyes, looking What do notice about his without at him? just “A. “Q. It’s—it You said his looks like the man on the tennis court. That is the man. eyes. you eyes? did notice about his What Well, small, they bright fairly they quite “A. are are and intense. Small, “Q. bright, eyes? intense “A. Yes. “Q. you You told us that the man that saw on that date had either a beard or a moustache; is that correct?

“A. That’s correct. “Q. Did he have sideburns? so, very “A. If short. “Q. Approximately long you how did see this individual involved in this attack upon you in long December of from the start to the finish? About how did the take, incident sir? Well, minutes, say. “A. “Q. no more than five I would individual, men, got What was the closest this you the shorter of the two time, during period sir? Probably “A. about as close as the court clerk is. “Q. Perhaps within three or four feet then? “A. Yes. time, “Q. And it was dark at that was it not? “A. No. The tennis court was well lit. “Q. Would it be a fair say your memory statement to of the events which tran- spired vague hazy December of 1968 is somewhat at this time? commences,

7 Footnote 7 post, page 813. court, from the tennis testified that on December a few min- utes before the “tennis murder” court two male blacks entered her shop while she was shop alone Christmas cards and addressing waiting No, very jackets, very “A. “Q. it is vivid. 1 don’t remember but it is vivid. your memory you jacket With kind of this man had on in vivid can tell us what December of 1968? gun noticing jacket my “A. 1 wasn’t “Q. a a face. recall; your right? you So answer is can’t that wearing jacket. you—I it was “A. 1 can’t recall. I know he was can’t tell believe light beige light gray. or color. It could have been Mr. Olsen. You have May question, “THE COURT: I ask one identified defen- positive identification, today. your today dant in court here Is or do identification you you feeling you you picture and when still have the same selected that had when selected lineup? someone from positive “THE WITNESS: I “THE COURT: You it is a identification. feel today positive it is a feel identification? Yes, ma’am. “THE WITNESS: you you anything “THE COURT: Is there about the that makes defendant feel man, anything are sure that this is the else? I ever saw thought . “THE WITNESS: I at the time that I would remember him him if person again. » (Italics added.) 7 VictimKenneth jury Olsen testified under direct examination at time of the trial as follows: “Q. What thing was the first that was said either of them? words, of, ‘Yeah, I something “A. don’t recall the exact but it was to the effect man, bread, on, stickup. your going this is a We you. put want or we’re to burn Come your up.’ hands “Q. you Do recall the word ‘burn’? “A. Yes. “Q. At you they guns? that time did notice both had “A. Yes. “Q. you Do anybody people? see in court who was one of those Yes, “A. “Q. I do. indicate, you please. Would so “A. The sitting Yes. man next to Mr. Cochran. “Q. gentleman my I have hand over. “A. That’s correct. “MR. May my KALUSTIAN: the record reflect that I have hand over Mr. Pratt? may “THE COURT: The record so indicate. “Q. BY doing talking, guy? MR. KALUSTIAN:Who was Mr. Pratt or the other “A. Mr. Pratt. Now, “Q. BY Okay. you MR. they up KALUSTIAN: have indicated that came you they your they’d you; right? and indicated that money wanted burn is that “A. That’s correct. “Q. What was said next? said, lights, lights. lights “A. Then there was—Pratt ‘The Get the off.’ “Q. To who? me, said, lights “A. To and I way ‘There’s no to turn the off. It’s on a time meter.’ return; was Pratt who one of the men defendant for her husband to two; the of- the defendant looked down into the shorter of with him the back along two proceeded fice then the taller asked if she might two cases. Mrs. Reed store and looked into said, you if them out.’ I have shoot them out want ‘You’ll “Q. or done next? What said No, me light first—excuse “A. other over meter. Pratt then sent the fellow not, they and I started to get any way, off whether could or —first he told me to them ‘No, no, meter, said, you Keep your where hands go Stay no. are. over to the up.’ “Q. say guy, you the other if recall? KALUSTIAN: What did he to can BY MR. Well, meter, you get them something ‘Go to the see if can “A. to the effect of over off,’ or, ‘get them off.’ go light guy finally over to the meter? “Q. BY MR. KALUSTIAN: Did the Yes, “A. he did. “Q. lights off? Was he able to turn “A. No. “Q. “A. happened What next? Well, money valu- our was and "where our we were asked where our—where were, my bag my purse wife’s had her my was in ables and I told him wallet tennis it, sitting bag on the bench. wallet which next to the tennis was “Q. long court? people the two on tennis Approximately how were just “A. “Q. was few minutes. It a your Give us Maybe best estimate. “A. five minutes.” (Under gunmen varying were dis- Mr. testified the two Olsen that cross-examination [‘two, with both of him and were also “face-to-face three tances within feet of feet’] times.”) separate probably them two or three murder, police pic- view following he was asked Olsen testified that Mr. identify it was not was unable to the assailant eight” tures “seven or occasions but again pictures. He then testified as year asked to view until later when was about follows: “Q. upon pictures? were to look at you When the next time called ... later, November, I be- year about anything approximately “A. I didn’t until hear was, lieve would be 1970. it of—that “Q. pictures, did then? you Where view police Monica station. place, “A. the Santa At the same do, go police station? “Q. you you did did down to BY MR. KALUSTIAN: What Yes, the police “A. I went down to station. “Q. you photos? Did see some Yes, I did. “A. “Q. you many did see? 16. photos How it “A. I think about “Q. form? Was it a fold-out Yes, it was. “A. “Mr. KALUSTIAN: “Q. exhibit, Clerk, please? I have may Miss that through and tell me whether No. 8. Go you a look at exhibit Would take group you saw photos say appears to be—the same appears to be—I Monica, and same form. Santa in the to build a if merchandise defendant inquired they them and help had did material at not have replied they doll She house for wife. shop since they just starting the time to a doll house build want sell anything.’” if don’t us you defendant said: ‘“You act as said, “‘Sir, moving up we are into just Mrs. Reed have to realize you time, in here at the present don’t have much merchandise store. We home.’” The on the brings up way and each husband carload my night Reed, locked left the and Mrs. feeling suspicious, two men then store “closed.” thereafter “open” Shortly the door and turned the from sign voices, window of the and saw she heard male looked door through back She the same men to each other. saw talking two walking both men with a from the standing doorway protruding right gun hand of the tall man while defendant Pratt shook the doorknob saying, “‘Let us Reed in.’” Mrs. went call the immediately telephone police and the two men departed. Yes, “A. it does. “Q. At you that time were able to photographs? select one of the Yes, “A. “Q. I was. you Would look at you those now tell me which one were able to select then? “A. No. 13. “Q. your What was state of photograph mind with reference to 13? No. Well, definitely “A. 1 felt that this did appear photographically look and to be one assailants,

of the and that while I didn’t think I make a positive could identification any from photograph, expressed and had police department, I felt that that picture was a person. “Q. you Was this the you first time that felt had seen person? the “A. Yes. “MR. May KALUSTIAN: the record reflect photograph No. on exhibit No. 8, is Elmer Pratt? “The may The COURT: record so indicate. “Q. You people have indicated you that the who at accosted the tennis court each guns;

had is that correct? “A. Yes. “Q. you guns, Can describe each of your the to the best of recollection? “A. 1 believe there was police a .45 automatic and a .38 snub-nosed revolver. “Q. you Do recall person gun? which had which “A. 1 don’t 1 now. don’t recall. “Q. BY MR. Is your KALUSTIAN: there doubt in mind at this time that Elmer Pratt, case, the in this was one the two men on the court tennis in Santa defendant Monica on December 19681 (Italics added.) “THE WITNESS: There is no doubt." During the extensive cross-examination defense counsel Mr. Olsen was asked if there “anything unusual about manner in which he walked [defendant Pratt] replied, conducted “very definitely... himself?” Mr. Olsen the fact that he held us us, up, and pumped then my bullets into and murdered wife.”

816 was driv- Reed, that he

(Fred Reed, testified S. of Barbara husband Monipa 8 on December p.m. at about hobby shop to the Santa ing individuals jim- he saw two black he store approached as block, he saw After circled the in. get the front door mying trying safari men, jacket, wearing one of whom was the same two black parked between two and disappear on Lincoln Boulevard away hurry cars.) Mrs. Reed’s to suppress defendant’s motion pretrial

At hearing (Mrs. court), she (which was denied by identification of him motion of Pratt Reed) being in-court identification positive made about p.m. two who on December shorter blacks who shop were in her hobby the tennis court murder shortly before door.8 later and locked front then returned tried get hearing mo 8 Following pretrial on defendant’s testimony is the of Mrs. Reed at suppress testimony: tion to her identification “Q. you shop? hobby possibly What did lock the door to the time eight. before Normally evening it was a few minutes “A. “Q. o’clock. This that, you somebody hobby shop Just that did see before moments before you recognize? now who Yes. “A. “Q. person? Who was that gentleman (indicating). sitting right “A. “Q. there gentleman my This Yes. hand have over? “A. May my have over defendant Elmer “MR. KALUSTIAN: the record reflect I hand Pratt. Yes, may “THE the record so indicate. COURT: gentleman? “Q. BY MR. KALUSTIAN: Did he come in another “A. Yes. “Q. car., height, any if was Pratt taller Distinguishing you the in terms of Mr. two or the shorter of the two? Mr. the man. “A. “Q. Pratt was shorter that, later, you years close to were called maybe Sometime after I think two view in with this case? upon approximately photographs connection “A. Yes. they “Q. you now ar- Looking or photographs, at those could remember how were ranged, layout kind of a there was to them? what album, few, toward the end type quite “A. It in a of an and 1 looked at and being I that as Mr. Pratt. picture, pictures, of the book was a two that identified “Q. pictures pages? Were the these two on same or different I one and one below the other one. page, “A. think on the same above “Q. pictured? photograph Were there more one of of the individuals than ea.ch photographs., Yes. were “A. There two now, “Q. you not Seeing Pratt for a moment that had seen Mr. and assume store, your years Mr. Pratt into group photographs about two after time came time, Reed, just just Jury you appeared it before before the Grand to set Mrs. upon photographs? you that were called to view these Yes. “A. At trial Reed jury Mrs. again positively identified defendant Pratt as one of the two She his gunmen. face thorough- “remember[ed] ly” (“indenta- that “one predominent was a round feature” scar tion”) forehead, “between his on lower of the eyes part above the (Exhibit eyebrows.”9 8 includes a photograph defendant [No. 13] Pratt which shows he a small has scar round-shaped or on indentation his lower forehead similar to that Reed.) described witness Barbara She testified that Pratt was a safari wearing jacket hanging open with black or blue tank navy underneath, shirt or type sweater brown trou- sers, shoes and tan no hat. time, assuming “Q. Going you photo- had those back to that that never seen whether, mind, looking today, your own

graphs, seeing you at Mr. Pratt can tell us in not photographs you today? those could have identified Mr. Pratt Yes. “A. “Q. you or you today? Do feel could could not have today. 1 could “A. have identified him back, can, “Q. you you today being In looking have Mr. Pratt here identified if 18th, 1968, your you your in Mr. Pratt store on December tell us whether can identification of date, your today upon you based saw time him in store on any whether was based on other factors? now, bridge As I I scar “A. see Mr. Pratt recall the he has above the his nose. scar, him, I, Today positive my I I I am was drawn in conversation with noticed, today. explicitly and I scar his do remember more than ever the above nose Now, “Q. you photographs, looking particu- you when looked at for some particular? lar distinctive feature in “A. No. “Q. you general impression Would say appear- it be fair to retained a your had in ance of men that been store? “A. Yes. “Q. you any specific Did either the men? recall feature of one, just person my picture face, I his entire his entire “A. short could mind. you nosel “Q. But have mind scar above his didn’t Yes, something face; yes. “A. I knew he had mean on his "Q. hobby something You had store had his man that been in face1 man, yes. “A. The shorter “Q. hobby that was store have on What did the short man face1 bridge “A. The scar above the his nose. “Q. Describe the scar. scar, deep, It was a indented. “A. round hobby store1 “Q. that the man was in the You noticed when talking “A. Yes. I was to him face face. (Italics added.) 9 Witness “Q. Reed following Barbara testified at in the trial manner: looking In today, at Mr. it you Pratt gentleman what is about that him enables to say that store, your there, Pratt,

he December, was that Mr. on the 18th of 1968? “A. I thoroughly. remember his face Weapon:

The Murder Wolfer, L.A.P.D., testi- DeWayne chemist for the chief forensic removable but pistol that a .45 caliber automatic is fied a barrel face, breech firing pin on shell from the expended that marks left positively identification. He are means of firearm ejecter positive identified, that three comparison microscope, expended use of a the “tennis court murder” of Caroline recovered at the scene of casings automatic were fired from the .45 caliber Olsen on December next to the window over- living found in the second floor room pistol “Q. Anything else about his face? Exactly everything about his features. “A. “Q. Well, night you now see. specifically you us recall from that that tell what haircut, head, him, shape eyes. his his his Everything Tell us a little bit what “A. “Q. about signifi- anything Is you mean his haircut. there about you cant to his hair? about today it then. I That is the same as was “A. would call a crew cut. “Q. A cut? short “A. Yes. configuration anything “Q. you about the BY KALUSTIAN:Did notice MR. shape of the hair? No, peak a widow’s in the front. just “A. a full head of hair and “Q. Sorry? point a in front of the forehead. peak, is called widow’s “A. What “Q. a point? down to a mean as the hairline comes You peak, yes. widow’s “A. This is called a you talking with when were have indicated that “Q. BY MR. KALUSTIAN:You Pratt, right? you standing talking with were Mr. him: face-to-face height I am. He was about the same “A. Yes. “Q. you standing? you get as a look at his And did face him, man, my one and what drew attention with the “A. Yes. I was face-to-face well, his indirectly feature, scar on predominent feature, forehead. “Q. was the scar? Where eyebrows. eyes part forehead, above the the lower “A. Between his on “Q. scar? shape What kind. some “A. Just an indentation of Well, “Q. scar? long was it anything else. “A. More round than as about Mr. Pratt’s you recognize anything “Q. BY Do MR. KALUSTIAN: face you your saw store? you now was the same as the individual look at it “A. Yes. us, “Q. please, Tell what? Well, my attention. seemed draw before, as I said the scars “A. forehead was in your you view Mr. Pratt now “Q. Is mind there doubt 18th, your 1968? store about P.M. on December 8:00 (Italics added.) my “A. There is no doubt in mind.'” at West Boulevard Century the the premises front of looking as recovered to the identify slugs He was unable 1969.10 January the barrel but surmised pistol the same .45 caliber automatic matching iden- the weapon precluded had or that excessive changed firing been (The is consistent the barrel tification. failure to match the slugs told him he had changed with Butler’s that defendant Pratt testimony see the in the murder weapon; infra.) barrel above ballistics was uncontradicted. testimony expert The Wolfer court a ballistics request appointed expert

At defense counsel’s the M. L. Mr. Miller examined the choosing, the defense’s Miller. namely 10 OfficerWolfer “Q. at the testified follows trial: your sup- have opinion your You indicated was that test shells and the shells is, plied you by Sgt. by gun, People’s to Buckles were fired the same that the one with; you compared is that correct? “A. That’s correct. “Q. positive opinion? Is that a “A. That’s correct. “Q. your there opinion positive? Is doubt in mind that is upon my “A. Based experience past twenty all studies and the field the years, identification, positive gun some-odd er that is a came that it from this and no oth- gun." Wolfer, Previous the testimony by expert introduction of the above ballistics prosecuting attorney stipulated tracing slugs and defense counsel of the spent and casings shell found at the scene crime of the to the witness as follows: 12-19-68, May 19th, “MR. KALUSTIAN: it be stipulated that on or about December 1968, Det. Eckstein of Department the Santa Monica Police received from Dr. Harold Olsen; slug Bisele of Santa Monica that Dr. Bisele removed from Caroline Det. transported slug “That Eckstein to the Santa Department Monica Police did; and booked it into evidence in the same manner that Officer Plasse indicated he 29th, on or January “That about 1969 Officer Sollee—S-o-l-l-e-e—of the Santa Department transported slug Monica Police spent casings and by shell found Offi- scene, cer slug Plasse and the put .45 caliber by in evidence Det. Eckstein from Bisele, Sgt. Dr. and transported them to Warner of Sheriff’s Crime Lab in Los Angeles; 29th, January “That on Sgt. Warner received them and booked them into Sheriff’s Evidence. “May stipulated prior Jury it further be hearing, sometime Grand within months, date, Buckles, two or Sgt. Ange- three I don’t exact recall the of the then Los Department, Sgt. les Police received Montgomery Department from Sheriff’s is, spent the casings slugs Sollee, by shell turned Department over Sheriff’s slug evidence found Plasse at the scene removed from Olsen Mrs. Dr. Bisele, and, further, Sgt. picked up Buckles out evidence the .45 caliber auto- matic, I believe now referred to as Exhibit—is it 27? is 27. moment, gun “THE WITNESS: I’ll you. clip Just tell Sgt. gun, spent casings, Buckles delivered the slugs shell “MR. KALUSTIAN: Wayne De Angeles Investigation Wolfer of Los Police Department Special Divi- sion, commonly called the Crime Lab. Counsel? [H] Yes, “MR. HOLLOPETER so stipulate. [defense counsel]: stipulations accepted.” “THE COURT: The are the microscopic comparison an independent same evidence and made de- not as witness by Wolfer but was called a of Officer presence testimony. Officer Wolfer’s to contradict testify fense Getaway The Car: in a van next to Lincoln was parked

Witness Mitchell Lachman who testified the trial that about 8 on December p.m. Park at from the ten- men run fast very shots and then saw two black he heard car with a white canvas a red (shiny-polished) nis into get courts but He did not the license number get top speed away. convertible with dark numerals. white background the license had a plate saw that having as North Carolina license plate he identified a 1968 At the trial He on the car. getaway with the color of plate a color consistent which was once red but of a car which identified a photograph further the getaway same body design having had blue as repainted been had which frame headlight a front chrome right car and the red under he the color of the car saw speed similar to not been blue as repainted of the crimes. away from scene that on testified L.A.P.D.

Officer John Lawrence Higgins at 28th and Westview Streets 11:30 p.m. at about April convertible, with a Cali- over red in color white a 1967 Pontiac stopped Pratt was driven defendant which license number YEZ fornia the identifi- He report made with a Lewis as passenger. Roger He further testified vehicle was 242677P-239094. number of the cation (the that had rim of the car car the headlight of red under strip that the on April car he stopped blue) was the color repainted been 1969. the prosecu- into between entered stipulations are the following respect court in and accepted

tion and defense counsel car: getaway de- it be between stipulated this time may At

“Mr. Kalustian: Cochran, prosecution, myself, fense, and Mr. Hollopeter Mr. the Department from was obtained information following the State of North Carolina from the State Vehicle records Motor California; 3rd, purchased Elmer Pratt defendant “That on October 1967 the Carolina. convertible, in North top, red white body, 1967 Pontiac Paul, “It P as in and was bore identification number North Carolina license D5113. assigned 6th, The September

“This vehicle entered California on 1968. defen- dant first application registration Elmer Pratt made for California 3rd, convertible, 1967 white February body, 1969 Pontiac red 242677P239094, number Carolina top, bearing identification North license D5113. 27th,

“On March 1969 the Department California Motor Vehicles YEZ, issued to vehicle Edward plate California license Ze- Young bra, 997. 22nd,

“On August 1969 the defendant Elmer Pratt made application Department California Motor Vehicles for new license plate. 4th, “On September 1969 California of Motor Vehi- Department cles new issued California license plates, Zebra YZX Young X-ray, 618 vehicle, convertible, defendant Elmer Pratt’s a 1967 Pontiac identifi- cation number 242677P239094. 8th,

“On April 1970 the defendant Elmer Pratt sold the above de- Hirste, scribed vehicle to Haste and Incorporated, automobile dealers. “Further, that the car shown Exhibits 11 [painted blue] to, is, same car heretofore referred the one ID number bearing 242677P239094. Hollopeter:

“Mr. So stipulated. Stipulate.”

“Mr. Cochran: Testimony (Julio): of Julius Carl Butler Butler,11 Julius Carl witnesses, one the prosecution’s key on De- (the cember murder), date the tennis court was a hair stylist his own operating beauty and was also a shop member of the Following graduation high joined from school in 1950 Butler 11 BACKGROUND: United Corps, States Marine honorably discharged saw service in Korea was in the sergeant rank of He Angeles City College (mainly 1954. then attended night) Los at of lieutenant with the rank At a bodyguard BPP. that time was rallies and events. 'party security BPP with of supplying duties hangout not Although shop He called “Julio.” “communicate some- Panthers, Butler to according it was used Black testified At the trial Butler through times with each other [him].” as follows: substantially murder), Pratt (the tennis court date of the

On December (Pratt) he introduced as whom to with person came his another shop he (Butler) something come outside as had Pratt him to told “Tyrone.” me “he told As in the doorway to tell him. stood they [Pratt] [Butler] know, back, mission, and if he didn’t come you was on a he going hap- have something might of the that Party the other members notify two the “mission” was. The did not indicate what to him.” Pratt pened with Butler had no conversation left and Butler went back to work. then who taller than Pratt. was Tyrone De- in the hours of midnight

Later the same around or night, early to be 19, 1968, “appeared very Pratt and shop cember returned (Butler) he some and he people, He him “that had shot nervous.” told them, that or he killed or words to effect.” didn’t know whether not had in Santa Monica. Nothing Pratt also told him the occurred shooting Pratt Butler he at that time and told shootings else was said about would check with him later. (the court shoot- the tennis day following

On December which newspaper Los Times saw article in the Angeles Butler an ings), Later he met day in Santa Monica. that a incident reported shooting (the at 7th Ave- headquarters Black Panther Pratt “at the 3-A office” wpre He testified that there “quite nue and Venice in Los Angeles). him of the of- I talked to outside few there but people [Pratt] [Butler] “I Butler testified that showed present. fice.” Just the two of them incident, and stated that that was and he newspaper him [Pratt] was before.” Butler talking night that he about the incident [Pratt] car indicated happened newspaper what his because asked Pratt said, taken, seized, (Pratt) and he his had been apprehended that car “no, wasn’t, stated had it and that it was hid out.” Butler also that Pratt Angeles studying criminology. He became Los Coun- years, primarily about for three resigned problems. 1956 but 1960 because domestic ty Deputy Sheriff attending a years for three before worked as a laborer construction Thereafter he graduation employed he was for Following his from that school cosmetology. school beauty opened beauty his until he own years operator as an in various salons several Angeles. in Los “Mr. on West Adams Boulevard parlor called Julio” a red or burgundy top Pontiac GTO convertible with white which was washed and always kept polished.12

Butler testified that while article with discussing Pratt newspaper it, “I asked about the and what he done weapon was used had and he told me he had time destroyed the barrel.” Pratt did not used, what state kind of he had but it weapon acknowledged later was .45a caliber automatic. Pratt “his bragged about own capacity proficiency” in the and how “cool” he shootings disposing gun barrel.13 Butler testified that the writing, sealing delivery of the (see A) letter Rice on Appen. Sergeant stemmed August from the fact that he had become disenchanted disillusioned with the BPP and (Butler) its and decided but philosophy when he quit told Pratt that he wanted out of the party life was threatened and he told couldn’t quit because he knew too much. then Butler decid- ed letter, did, “insurance to write the which he policy” gave Rice, Sergeant trusted, to a whom friend he in a sealed with envelope instructions it that should be only the event of opened He death. police shortly car was seized 12 Therecord Indicates that a after the murder investigation having getaway was released as not been but after further it car. reporter’s transcript following 13 The colloquy prosecuting contains between the attorney him, respect and witness Butler in to to weapon Pratt’s statements the murder getaway and the car. “THE I asked weapon WITNESS: about that used and he was what had done it, with and he me destroyed told he had the barrel. By “Q. used, weapon say MR. KALUSTIAN: What kind a he did he if he did? say “A. He at didn’t that time. “Q. Go on. on, He said “A. later at another incident. else, “Q. Okay. anything, say regard What if did time anything he that .at concerning the events in Santa Monica? He shooting, stated me that was the did people, “A. he one that that shot the Tyrone because couldn’t shoot. “Q. why Did Tyrone he indicate couldn’t shoot? No, “A. he didn’t. what; shoot, “Q. Did accuracy, inability he indicate it was because of or his or you do recall? He expressing capacity proficiency. “A. “Q. was his own it, any regarding Was there other conversation he was or what to do about anything else? “A. He said was “Q. said he he cool. He the car was cool and was cool. why? Did he indicate Well, disposal gun “A. barrel. time, used; “Q. By gun he still had not disclosed the kind he had is that correct? No, he “A. “Q. hadn’t. carry carry gun? Did or usually particular type he He usually “A.. carried a .45 automatic. events, “Q. you regarding Did have other conversations him these whether then the word out on the street that such a letter was existence so put it would reach defendant Pratt.14 words, time conversation, When the next and there? a few words here be

it that a total anything it? said about that, looking him because was quite some time after him for “A. I didn’t see lady had died. stated that newspaper when a later account seeing you recall him? next time When was the BY MR. KALUSTIAN: “Q. Bunchy was killed. date Carter “A. The “Q. circumstances? What were the deputy had been thought that the that he my shop and told me He came to “A. UCLA, sure. but he wasn’t campus on the killed “Q. deputy? Who is the He was deputy. commonly called the Bunchy He was Carter. referring “A. house, address, Huggins’ John go Century Boulevard “Q. eventually you Did night? Yes, I “A. did. Pratt talked about you can recall that Mr. “Q. time that When was the next event in Santa Monica? the car wasn’t tell him that People would on numerous occasions. up It came “A. car, it on. cool, he would shine get rid of the Bunchy him to had told “Q. that? you do mean What . right. say was all He would “A. gun you what kind of he did not tell “Q. one time have indicated that You gun was used? kind of ever indicate what used. Did he later, they it was a said .45. newspaper I saw it in a “A. I told him you that? “Q. told him When was this that burial, discussing back—well, we Bunchy’s after this was he came “A. When it. that, anything? say if “Q. did Elmer Pratt about What cool, disposed of he had he was because was—he said He me that he “A. reminded barrel, it. worried about so he wasn’t disposed of the it. He had . my that the laid the .45 on table—was he I asked him—when “On one occasion stated, ‘No,’ want it in the house. I told him I didn’t because weapon, and he “Q. was that? When give specific date. you a death. I couldn’t Bunchy’s was “A. This after at UCLA? killing Bunchy Carter the “Q. But it was after ' n “A. Yes. getting rid of talking to Elmer Pratt about person any particular Do “Q. you recall the car? several occasions. “A. Elaine Brown on say? would Mr. Pratt say and what “Q. What would she get rid of Bunchy told him to had reminded him that Elaine—she “The WITNESS: you occasion, they having problems, car car, I remember buy you On one the know. know, they a new car. would him they told him They would not? would or BY MR. KALUSTIAN: “Q. buy car. girls would him new the “A. He said that say? did “Q. What he it, get right it now. to rid of didn’t want but he He said he’d think about “A. 14 Followingare pertinent portions testimony pretrial hear of witness Butler’s ing pertaining to materiality relevancy the letter: testimony Rice at the trial corroborated Butler’s (Sergeant pertaining from Butler and that Butler had receipt envelope to sealed (Butler) be told him that felt that he was to killed handed going “Q. Sgt. Originally you you letter did intend when delivered the to Rice that to Department? contents of the letter be disclosed the Police No, “A. No. “Q. not at that time. Sgt. yours? because was a friend of Was letter delivered Rice “A. Yes. “Q. giving Sgt. what your At that time was reason Rice the letter? Rice, Sgt. personal Sgt. Rice and I friend mine trusted “THE WITNESS: life, give my anyone and there had been several threats on so I didn’t want to it to else upset my family want I people, that—1 didn’t to members of other and didn’t want give somebody responsible, it else open not and I trusted him not to something contents until did happen. “Q. it through by you Was originally not foreseen caused circumstances opened by police department? to be letter “A. That’s correct. “Q. you attempt Did to make known street the existence of information that you had? “A. I did. “Q. to, you say regard What did you in that and who did it say you if can recall? Well, reasons, security “A. I going wanted—for I’m people not to disclose the I let drop through, it if agencies. drop they but I let it in the streets that if continued to threaten me and me, anything happened information would be revealed to law enforcement “Q. What information? “A. “Q. Information relative to Pratt’s incident in Santa Monica. information, you dropped When you drop did expectation with the people, hopefully, bring would who it back to Pratt? “A. That’s correct. “Q. you Would tell us were the people against your who that made threats life? Pratt, Blue, Long “A. “Q. Washington, Elmer John Elaine Brown. Roger Is Blue Lewis? “A. Yes. “Q. What form of threat had it taken when you? Mr. Pratt threatened Well, night “A. “Q. dne they threatened They gunpoint my me. held me at house. us Tell about it. having “A. I was contradictions with Elmer Pratt and some of the other members house, party, Long and the was people my John—there some more in who were [i/c] personally. related to me “Long picked up pistol John a told pistol going cocked the me he was me, him,’ him, said, saying, shoot kept and Gerónimo ‘Shoot him. Shoot and I told I ‘Well, you house, would people you have deal with these other that in are the and if me, And, you get building.’ kill won’t finally, they put gun out of the down. events, life, “Q. Did this your begin series which led to the threats on with some disagreement regarding party philosophy? “A. Yes. “Q. Did it writing delivering Sgt. culminate with the of the letter and it to Rice? Well, incident, me, “A. pulled gun culmination—that they last when I on them, stay away told them to from I my me because trust didn’t Pratt came to in it be only opened that should with instructions envelope

Rice death.15) event of [Butler’s] holding gun under a shop and I was towel. much. me I knew too quit. He-told quit, i told him I could “He told me 1 couldn’t later, me approached I if he him he deal with me told Then he told me would enough him. again, paranoid to shoot that 1 was Was of this hear the date occurrence. “MR. 1 didn’t COCHRAN counsel]: [defense there a date on this? given. probably “MR. KALUSTIAN: It wasn’t this occurrence? have a foundation on “MR. COCHRAN: Could we further “THE Yes. COURT: “Q. When did it occur? BY MR. KALUSTIAN: give you date. “A. 1 can’t the exact “Q. Was it before or after letter? “A. before the letter. It was weeks, “Q. days, or or months? give idea in you Could us an terms “A. June. About the month of year “THE Was 1969? COURT: Yes, “THE WITNESS: ma’am. Sgt. the letter “Q. you Did tell Rice what information BY MR. KALUSTIAN: contained? “A. No. “Q. impression that you you did to leave him with Did leave him or intend personal you, police was rather than business? capacity. This was the under- “A. I told was all done in an unofficial Yes. him. It standing we had. time, you? “Q. didn’t policeman You understood he was “A. Yes. “Q. working community he And that relations? “A. Yes. Panthers, “Q. organization, and Black the US And that he had contact groups other in the street? “A. Yes.” respect to testimony at the Following pertinent portions are the of Butler’s trial Sergeant delivery envelope Rice. sealed “Q. Sgt. Duwayne Angeles Po- [By you Do Rice of the Los Mr. know Kalustian]: Department? lice “A. I do. “Q. yours? friend Is Yes, “A. “Q. he is. 10th, August you him a document did deliver to written Back on about envelope?

sealed in an time, yes. Approximately “A. “Q. something regard to the document? you Did tell him Yes, “A. “Q. I did. you Sgt. Rice? you Would tell us what told him that had been gave Sgt. envelope I and stated to there “THE WITNESS: Rice opened the event my envelope only to be death life and that threats same. envelope? of the “Q. you on the outside KALUSTIAN: Did state that BY MR. commences, page 827. post, 15 Footnote15 of the sealed the opening surrounding the circumstances

In to respect hand- (over after Butler fourteen months on October envelope it to first given that he had him), Rice testified it to Sergeant ed he received it months after five or six Henry safekeeping Captain the the contents of Butler; did not know that he friend from personal internal Rice) investigation by was under that he (Sergeant envelope; the let- the delivery matter unrelated to the for a affairs of L.A.P.D. officer). internal (for The L.A.P.D. a white police ter to him striking to and demanded envelope of the sealed affairs knew of the existence Butler’s per- Rice asked Sergeant see it as of their part investigation. officers, which was granted. it to internal affairs mission to turn over envelope for the sealed Rice then asked Sergeant Captain Henry Jr., Lutes, of internal affairs Edmund M. turned it over to Sergeant noted, information con- the who the As opened envelope. previously (see A) caused the detectives for tained in the letter was what Appen. December as a suspect the first time to focus on defendant Pratt 18, 1968, murder of Caroline Olsen. Ser- corroborated substantially of the trial Butler course

(During envelope.) of the sealed opening Rice’s respect geant testimony letter, the contents prompted by As a result of the investigation that Butler stated witness before the grand jury. Butler was called as a that figured because grand jury he testified before reluctantly “[he] information, that that had the would the fact testimony nullify [he] Yes, “A. I did. friend? “Q. you give Sgt. policeman or as a envelope Did to Rice as gave personal friend. “A. I it to him as a “Q. Why you give did to him? rely that I could on not persons the most reliable “A. Because I felt he was one of my members of fam- my permission, upset and I didn’t want to other open it without ily with it. Well, envelope with information? “Q. why you necessary did feel it to deliver leverage I only bit of time was the envelope particular “A. Because the at that against making threats me.” against people that were could have used 15 Following testimony Sergeant respect the trial in to Butler’s deliv is the Rice at ery the letter to him with instructions. you when he delivered the “Q. What did Julio Butler tell BY Mr. KALUSTIAN: envelope you? sealed says, just prior giving me talking things We several and he “A. had been about killed, going he understood there was envelope, says he feels that he’s to be he him,—simultaneously, he was anything happens him and if a contract out for said, this, you reaching gave envelope—Would read pocket. in his inside He me give my it to mother? “Q. you before were to read it? supposed What event was to occur die first.” impression “A. I had he had to (an the threat policy”) against it as “insurance using leverage”

[he] on his life.16 Taylor

The Ollie Incident: Julio Butler testified that when he returned home the night April 22, 1969, defendant Pratt and some other Black were Panthers already at his apartment and were for someone. Ollie waiting Taylor, know, 17-year-old Black Panther whom he did not in and brought the other Panthers started him about interrogating (Taylor) af- being filiated with the US that organization; Blue during interrogation struck in the Taylor mouth that the then gun; group moved into continued; a back room where the interrogation Pratt then with a 16 During attacking materiality relevancy pretrial the defense motion as letter Butler testified follows: “Q. you Sgt. you After delivered the letter to Rice in when was the next time anything heard about the letter? Approximately year “A. later. “Q. you regarding approached somebody Were it? “A. The Internal “Q. of the LAPD. Affairs Rice, investigation involving Sgt. agreed you Because of the to have the con- disclosed; tents is that correct? Yes, to—well, Rice, they going they might “A. because prosecuted Sgt. were have friend, figured I supposed so he had done as much as he was to do for me as a I going go wasn’t to let him down the drain it.” At the trial Butler testified follows: “Q. you Sgt. regarding BY MR. Did KALUSTIAN: have a conversation with Rice opening envelope? Yes, “A. “Q. I did. you say say regarding What did particular and what did he item? Sgt. “A. Angeles Rice stated to me that the Internal Affairs Bureau of the Los Po- Department investigation being lice had instituted an possibly relevant to him relationship envelope, subversive because of his with me personal and that as a open friend he would envelope being persecuted not and would take his chances on so, or fired if I I subjected stated told—at which I told him he had hisself .time enough my friendship, go open envelope. and to ahead and [s/c] “Q. you Later on testified Grand Jury, you, before the didn’t Mr. Butler? “A. That’s correct. “Q. questions And I you regarding your think some were asked of reluctance to tes- truth; tify, you telling and whether you or not were the whole do recall that? “A. That’s correct. By “Q. you testify? MR. KALUSTIAN:Were reluctant to Yes, “A. I was.

“Q. Why you testify? reluctant to Well, all, figured “THE WITNESS: testimony first of I nullify would the fact information, using that I leverage. had the that I was it as By “Q. MR. KALUSTIAN:You mean public knowledge? it would become any “A. It wouldn’t have street value more.” Taylor; Butler to interrogate on his ordered pistol cocked hammer with Pratt and struck Taylor of “very seriously frightened” Butler was and hand; up he washed Taylor when the ceased interrogation his and that Taylor the rest of the night; in the room allowed him to stay left the next morning.17 Tay respect to the Ollie of the instant case in testimony Butler’s at the trial 17 Julio as follows: lor incident was you involving Taylor, Ollie and indi- “Q. was an incident You have indicated there you slapped Taylor. Ollie cated Yes, “A. “Q.* sir. incident, surrounding who was the whole you tell us the circumstances Would incident, there, any? given if was Mr. Pratt for the and the reason that occurred, there was Elmer Pratt night when I came home “A. On the the incident seven, they time eight my apartment. At that people six or more approximately and had a for someone who didn’t and I had know, out, waiting keys they and were my you it was two extra key apartment, know, Taylor, name was Ollie they I stated this fellow’s never seen or from him before. heard High rally, I didn’t Hollywood School at a but “He stated that he had seen me at him, interrogation. brought him in and started an anything they know about so organization, then Gerónimo being a member of US “First he was accused Taylor put had it out in the

jumped he said had heard that Ollie on him because Bunchy UCLA. and left Carter at streets that Blue and Gerónimo ran off “Q. day he was killed? Yes, fight and this is how the started. “A. “So gun in that struck him with the pretty quieted soon it down. Blue was the one say, [j/c] all front room and ‘Let’s they went in the back room out of the the mouth. So go room, down and talk.’ to the back and we’ll sit long. maybe 12 feet elongated, pillow approximately about “I had an stuffed “Q. Feet? wide, half feet maybe about two and-a long approximately “A. About 12 feet pillow on the pillows, and Pratt laid basically except bare for some this room was magnum which time he had a people, rest of the next to the window and faced the hand, and— “Q. Taylor in the room at this time? Was Ollie “A. Yes. “Q. Okay. room, sitting Ol- sitting and I was next to Taylor in the middle of the “A. Ollie was as much trying Taylor to Ollie on the basis ‘Give Taylor, I to talk lie information about he was on the and was. to me that the shit yourself,’ and Gerónimo stated yourself to clear shit, and he cocked the hammer talking and I looked over was a bunch of bull pistol. “Q. pointed, if at all? pistol Where was the sitting because I was side- right Taylor, me and Ollie actually was between “A. It Taylor. by-side with Ollie move, erection, stated, you ‘If don’t and he “Then I noticed that Gerónimo had an ‘Furthermore, said, siding off,’ maybe you’re I think your and he I’ll blow head him,’ slap Taylor. told me to Ollie so he trying to—at that time pretense interrogate,’ so I did it say, “He ‘You [s/c] behavior, seen a seriously frightened. I had never frightened very I of Geronimo’s was with an erection— man Well, nonresponsive. object will to this as we “MR. HOLLOPETER: time, why frightened at that that’s you At rate “Q. BY MR. KALUSTIAN: (The the victim Ollie as fol- Taylor substantially testimony he, at about Ollie midnight lows: that on approximately April at the station where picked up gas L. Jr. Taylor, years age], [17 he worked Richard Johnson and Nathaniel Clark taken Julio de- that when he arrived at the apartment; [Taylor] apartment Butler’s Pratt, Blue, Butler and Elaine fendant John Julio Long Washington, Brown were was in a chair the middle of what present. Taylor placed defendant questioned to be a room and was first appeared living Pratt and thereafter Elaine Brown if he was a member of the US not, that he was defendant Pratt said he When answered group. Taylor and hit him with his hand him out of the chair onto lying knocking rolled him- Taylor the floor where several started him. persons kicking self into a ball and covered his head. He was then stood and taken up into another room and sat down on the floor defendant facing Pratt. Pratt sat on that looked like a mattress De- something holding gun. fendant Pratt asked him if he was US member and because his again definite, answer was not Blue hit him in the head with a five or six gun times. After he had been asked several Julio Butler came into questions, room, showed him a with some US members’ newspaper pictures not, it and asked him if he knew them. When he did Taylor replied hand, with the Julio Butler hit him across the mouth back of his knock- one tooth out and another one and then him a ing chipping gave towel. went his wallet for US identification and then de- They through looking Pratt, fendant Blue and Julio left room. Later a man came in the him lie down and took his shoes helped darkened room and off. Since dark, was.18 In the he didn’t know who man Elaine morning home.)19 him Brown and another “sister” took you Taylor? struck Ollie Yes, room, began everybody “A. sir. Then I to talk to in the and tried to talk— statements, “MR. Object voluntary HOLLOPETER: your Honor. Sir, question pending right “THE COURT: there is no now. “THE Sorry. WITNESS: Butler, BY MR. Taylor stay night, KALUSTIAN: Mr. where did Ollie if “Q. you know? stayed “A. He in the I up stay. room. washed him and let him “Q. When did he leave? morning.” “A. The next (Julio) room possibly 18 Theman who came into the darkened could have been Julius 17, ante.) Butler. fn. (See Taylor People 19 TheOllie incident resulted a criminal action entitled v. Butler Clark, Freeman, Johns, A245134) (Super. in which Nathaniel Ronald Richard Ct. No. Lewis, (Pratt) Roger Washington the defendant herein were named as code John Code, (Pen. 236) charged imprisonment deadly with false and assault with a fendants § Code, (Pen. 245) weapon Taylor pleaded of Ollie as the victim. Butler nolo § contendere. Defense Testimony Gerónimo): (G or Pratt Elmer

Defense being He denied ever defense. in his own Defendant Pratt20 testified Monica at court in Santa in the tennis shop Reed’s hobby in Barbara a state- making He denied 1968. time on December including December evening time on ment to witness Butler at any Butler later 1968; telling on a “mission” or denied out going he further with Butler on De- discussing on that date or that he had shot someone the “tennis court article concerning a newspaper cember man named Ty- with a place he ever went any murder.” He denied that didn’t Panther but who was a Black knew Hutchison rone. He a Tyrone him until sometime in 1969. meet the defen- crimes alleged, denial of the his general

In addition to was in He stated was an “alibi.” dant’s main defense “[he] Area” on December in the Oakland, Bay was Oakland or Frisco. [He] 13th, 14th or 15th of on the 18, Area either Bay 1968. He went to the He did not the BPP 1968, program. with to get acquainted December Christmas, December after until the day return to Los Angeles re- he did not by airplane, to San Francisco he went Although 1968. it was himself because a ticket He did not buy member the airline. the ticket.” sister who got “it was a Carter and to him given by Bunchy When he ar- (now deceased) airport. drove him to Franco Diggs BPP office Francisco, to the San Francisco he took a cab rived in San Panther pad” at “a He spent night sisters.” where he saw “two and Richard Fred Bennett others including with drugstore above In after and raised in the State of Louisiana. 20 BACKGROUND: Pratt was born Army* served in Viet graduating high joined the United States from school Carolina, Bragg, North on honorably discharged Army from the at Fort nam. He was sister, Granger, Emelda to Cali he drove with his May September 1968. In fornia, (red bearing body top), with a white convertible in his 1967 GTO Pontiac ante). car, getaway He (later be the see plates license determined to North Carolina by the fed special program financed full-time student at UCLA in then enrolled and black (OEO) majoring in liberal arts Opportunities eral Office of Economic joined Bunchy the BPP. he met Carter studies. It was at UCLA that trial, * During following colloquy between de direct at the occurred examination fendant Pratt and his defense counsel: high you leaving did school? What do after “Q. joined “A. I the service. Army? That’s the United States “Q. (Italics added.) Imperialist Army, “A. United States correct.” Brown. The next he went to the National BPP office in day Oakland. Jackie, He met a sister “named who most of the time [he] while Hilliard, area.” He met David Bay also went to [he] went meetings, out into the and sold Panther community He papers. also “went to a at this we went to Dr. I party pad, Shapiro’s. remember there, About a pad.” week after he had he heard gotten up Franco had been killed on the 19th of Diggs December. He testified Francisco, that he was in either San continuously or Oakland Berkeley, from 13th, the time of his arrival on the 14th or 15th of December until his return to Los on December Angeles that he was at David Hilliard’s house on the of De- evening “think[s]” cember 1968.21 In respect to the 1967 GTO Pontiac convertible identified as the get-

. car away from the “tennis court murder” he admitted that he it brought into it, California with North Carolina plates license that its original white, color was red and and that was but repainted blue not under his direction. He stated the BPP took over the on the car and payments other Black Panthers drove it.

In respect to the .45 caliber automatic used in the of Caroline killing Olsen, he denied that it was his or that he ever had weapon possession of it on December including 1968. On cross-examination he ad- mitted that he was familiar with a weapon such from his train- Army (assemble could field ing, disassemble) and strip and knew that the barrel could be replaced. He denied ever such a carrying weapon.

In respect hair, to facial he stated that when he came to California in September 1968 he had a moustache and chin and had growth the same hair growth on his 18, 1968, face on December but he may not have reporter’s transcript 21 The following contains the colloquy with Pratt: “Q. you Where were on December 1968? Bay “A. *1 was in the Area. “Q. Specifically you? where were Specifically, “A. my the best of recollection? 1 think I was at David Hilliard’s [H] house. “Q. your You said T think.’ Is that best recollection? “A. Yes.” Defendant Pratt also testified that he party went to a on December with a and party they pad sister after the went slept; to a the two of stayed them there all day the next and went party day, to another on Christmas December 1968. the whiskers off his chin that date. He recalled shaving had hair on on 1969.22 January chin for Carter’s funeral of his Bunchy of his own In to a safari or bush he denied one respect jacket, having (Pratt) until 1969 but Carter had one and he prior Bunchy would wear Carter’s bush on occasion. jacket Butler in November

Defendant he met “Julio” Pratt testified that friend; dude “I kind of suspected 1968 but was never a close fact me, know”; all He seemed along, you always suspicious you know. BPP (Pratt) and that when he became minister of defense of the deputy wanted his job. in Southern California in 1969 “Julio” Butler April Taylor The Ollie Incident:

Defendant Pratt’s the instant case in respect testimony in circumstances the Ollie incident was dif- surrounding Taylor markedly victim, (see ferent from that of Julio Butler and the Ollie Taylor ante). Defendant Pratt’s was testimony essentially that when (Pratt) Lewis), arrived at Butler’s with Blue apartment (Roger Ollie Butler, was there as was John Taylor already Long Washington Freeman; Ronald that Ollie down and his whole face Taylor sitting Butler, who had been started to bloody; what drinking, justify was done Ollie “had been shot into by saying Taylor the Party [BPP] (Pratt) US that he told Butler organization”; that wasn’t the manner to deal with suspects of the US organization immediately (in relieved Butler of his position and a section lead- charge security er) (Butler) him placed house arrest. 22 Following testimony respect defendant to his facial hair on De is the Pratt 18,

cember 1968: 18, “Q. you your Did face on December 1968? have hair Yes, “A. I did. “Q. your face you What hair did have on then? my “A. The same hair I have on face now. is, your “Q. going downward below mouth and That a moustache with the ends chin; making your whiskers is that correct? more or less a circle with though. positive on that “A. Yes. You see I can’t be too your “Q. keep your hand down from face. Please recollection, off, know, my I had this may you but best “A. This have been (indicating). your might been off? “THE You mean the hair on chin have COURT: “THE WITNESS: Yes.” Testimony

Other Defense members testifying local Black Panther In addition to several short pe- area for a did Pratt in the Los Angeles not see defendant they 1968, Black Panthers three riod of time before and after December Francisco-Oaklapd Area Bay testified that saw Pratt in the San they December from about a series of BPP and functions meetings attending 12, 1968, December 1968. Oakland, California, testified that Hewitt of

Defense witness Shirley that she had member of the BPP and in December 1968 she was a before she for about two weeks worked on a book with Seale Bobby of the BPP headquarters at the national started as a working secretary “thinks” she testified that she in Oakland on December 1968. She Monday, BPP in Oakland on headquarters saw defendant Pratt at the 16, 1968, her Gross. by Rosemary when he was introduced to December suit and blue suede shoes. She Defendant was blue wearing powder December Wednesday, “thinks” she saw defendant again following 18, 1968, meeting at David Hilliard’s house at a central committee Seale, (David brother), Pat Hil- Hilliard’s John where June Hilliard liard, Cleaver, called “Mojo” Gross and Rosemary person Kathleen wore a moustache and always were also She testified that Pratt present. Carter’s fu- was the same at appearance Bunchy facial goatee neral which she also attended. Richmond, (in Wilcots from California Jacqueline

Defense witness BPP, a member of the met Pratt Area) stated that she was Bay Decem- him to a for her cousin .on birthday party December took 16, 1968, BPP functions in the drove him to various ber thereafter at David Hilliard’s house. She Area several Bay including meetings December him house “a little after dark” on took to David Hilliard’s and on that date defendant and the lasted “all meeting night” the sides of his mouth wore a “Fu Manchu” of moustache down type her knowledge. but did not have a goatee stated that she did not know witness Wilcots On cross-examination that Pratt with murder charged until a month before she testified (she testified on Friday Monday, and did not know until previous 10, 1972) time the murder occurred. She heard about July specific on the street” and voluntarily the trial from a “sister [Renee Merritt] To her Pratt knowledge came down for the trial “to a brother out.” help he left the Area in December 1968. Bay did have a when goatee not

835 was approximately facial hair testified that defendant’s She further him in (defendant’s (B)) when she saw exhibit same in a photograph in court. appeared and the same” as Bay Area also “basically Al- Algiers, from voluntarily witness Cleaver came Defense Kathleen in December trial. She stated testify geria, specifically committee the central a member of she lived in the Area and was Bay BPP; meetings Pratt at series of the and she saw defendant that and at Shapiro of Dr. and Mrs. him at the home remembers seeing his were present where the others David Hilliard’s home Oakland Seale, Hilliard, brother, Hilliard, wife, possibly June Pat Bobby State Col- the BSU at San Francisco Emery Douglas and members of she told the first time she stated that lege. On cross-examination in the before she testified defense counsel of her was testimony day date the murder un- even of the actual courtroom was not aware til she within the week before testified.23 attorney and 23 Following portion colloquy prosecution is between the witness during Kathleen Cleaver cross-examination: “Q.....When you lawyers to the defense first time that communicated was the you you today? today, essentially

what told us what have told us have say “A. “Q. I would this courtroom. you going you lawyers Have the defense at all about what talked with testify to? Angeles Tuesday. today Right, “A. but I Was Wednes- didn’t arrive Los until day? yesterday, opportunity I arrived that first I had to even talk with the was the lawyers. ¡971 “Q. charged you Is it a fair that in knew he was statement November that murder, you slightest supposed with a but have when it have didn’t idea was occurred? Only charged “A. that he murder in when this murder was with the that it, place very took case. It I wasn’t that very familiar with no one talked much about murder particularly important was not considered a case at time. “Q. very appreciate important I not at that time. that that murder was cases, many you “A. That case. He so Pratt had see. had—Mr. “Q. you. you generally say Thank In November of is it fair to discussed murder, charged Mr. Me Kissack the Elmer with a but not when it fact that Pratt occurred; supposed to have is a fair statement? “A. That is a fair statement. “Q. you when Is it a fair that in November of were not aware of statement supposed the murder was have occurred? only charged “A. I was with the murder. No. aware when he was “Q. nobody you Mr. Pratt was say Is it fair to contacted from time that formally charged February relatively recently regarding your around of 1971 and until knowledge of the of December of 1968? events statement, thing, you “A. one have to understand some- fairly That fair but thing else— from the car that the getaway not dispute defense did

Although Pratt owned and the vehicle scene on December murder a series license plates, Carolina North bearing California into brought on the made payments the BPP had witnesses testified of defense those and that car” “community it had become car and that getaway to the car had access headquarters central Los Angeles members in the it on occasion. who had driven Butler Julius including members several other the effect that testimony There was defense that he Pratt stated defendant jackets had safari beige of the BPP had worn one occasionally 1969 but early until did not one purchase (A found in defendant’s safari jacket Carter. Bunchy owned by described as being the one witnesses description similar in possession the two gunmen.) shorter of worn prosecution cross-examination of to extensive

The defense in addition prosecu- impeaching directed at defense witnesses on a put vigorous shop in the hobby defendant identification of tion witnesses’ 18, 1968. Witness hair on December on his facial emphasis particular looking” defendant as “clean trial referred to Reed had prior never whether at trial that she recalled and also stated “clean shaven” defense witnesses stated A series of he had a or moustache. goatee his face of moustache consisting was never without hair on defendant sister, Emelda testified that Granger, his and chin hair. Defendant and Carter’s funeral in January his chin hair for Bunchy defendant cut off Pratt, Sr., brother, also a Black Charles E. Defendant’s older 1969. and into the dor- Panther, him into UCLA helped get testified that he minorities for the federal OEO. scholarship paid mitories under a which he said was taken evidence a photograph He also introduced into defendant Pratt with a Christmas 1968 showing the weekend following defense permitted The trial also judge thin moustache and chin hair. answer, explain your Honor. “MR. COCHRAN: She can context, No, proper because I don’t put “The WITNESS: I would like to that into relationship I have had to the defense of the de- you fully think are aware of the fendant, the defense of Gerónimo. cases, attorneys his about his with his comrades on his de- “I have been touch with cases, raising speech making about his political fense committee involved in fund a whole situa- a considerable amount of contact with the situation as maintained case, tion, specific particular details of each so I have been contact and not about the comrades, period beginning in Decem- attorneys, people over a time with the up very minute. ber of 1970 until this you of this “Q. up just the last week did know the date And at no time until within murder; right? alleged is that “A. That’s correct.” at Cali- Buckout, psychology professor an associate witness Robert the effect length to testify at Hayward, fornia State College unreliable. identification is generally eyewitness Rebuttal Oldfield, was Joseph rebuttal witness The main prosecution’s that Polaroid who testified Corporation, technical for Polaroid manager date to determine the it manufactures the film coding had a method of (defendant’s ex- the polaroid photograph manufacture. He testified Sr., Pratt, testified brother, had (B)) Charles E. hibit which defendant’s of defen- condition showing after Christmas 1968 shortly was taken that date. Witness have been taken on dant’s facial hair could not showed that number on the photograph testified that the code Oldfield He p.m. between 3 and May the film was manufactured No. 33 showed that machine records company further testified dur- (B) operation was not even which defendant’s exhibit produced 1968. ing year Corpus

Evidence on Habeas and Documents FBI Correspondence this have general supplied the deputy attorney Defense counsel and re- FBI documents correspondence considerable court copies for a writ of habeas defendant’s petition view in with the connection letters between Con- consists of corpus. correspondence basically FBI, Webster, director of the William H. gressman McCloskey and Lee Deukmejian George and between California General Attorney let- the record contains Colwell, the FBI. In addition director of acting defense Nash and from Michael from General Deputy Attorney ters D. court, from Herbert as well as correspondence counsel to this court, FBI, Jr., copies Clough, special agent charge oral Deputy counsel. During argument which were supplied opposing FBI table stacks of on the counsel displayed General Nash Attorney to the Pratt FBI reports pertinent of thousands of consisting documents and the Defense counsel FBI all counsel. supplied case which the had those voluminous records through after going deputy attorney general FBI specific of those copies furnished this court with a fine tooth comb corpus. for habeas petition to defendant’s each felt reports germane release and portions the FBI before were screened reports These names of informants matters and security which would disclose (deleted) blotted out in accordance with federal laws and applicable regulations.

The above 6, 1979, records reflect that letter dated by April Con- gressman in his McCloskey official FBI capacity asked Director Webster to “institute an internal FBI of the Pratt investigation case to determine whether there is evidence in the files any to indicate the pos- of Pratt’s sibility innocence or doubt as to Pratt’s guilt.” Congressman McCloskey that he acknowledged was aware that “Mr. Pratt’s attor- neys in an FOI engaged Act lawsuit with the FBI present at the [are] time.”

Following exchange correspondence between Congressman Mc- and FBI Closkey Director Webster in a culminating meeting between 23, 1980, two on Director January Webster formed a “Special Pratt Task Force” to prepare written of what synopsis the FBI’s search of their files 10, disclosed. 1980, letter dated March By FBI ; Director Webster, a former federal sent judge, Congressman McCloskey “Syn- opsis of Pratt in a Inquiry” resulting file review far normal exceeding file review procedures of a consisting page-by-page, line-by-line review of all files in the FBI Washington, Los Angeles San Francisco of fices relevant to the Pratt case. The 11-page synopsis concludes with the statement: “The Task Force did not uncover information that any tends to exculpate Pratt of the 1968 ‘Tennis Court It Murder.’ found no indi cation that the FBI had 18, Pratt under surveillance on December day the murder. Nor did it find information any supporting Pratt’s alibi that he was not in Los Angeles the time of the murder. Finally, found no evidence to corroborate Pratt’s argument that his trial and conviction were the result of Cointelpro.”

FBI Director 10, 1980, Webster’s letter dated March to Congress- man and the McCloskey “Synopsis of Pratt are Inquiry” attached hereto as Appendix C.

This court’s pertinent analysis correspondence reports pertain- to the Pratt case FBI ing supplied pursuant to the FOI Act and by of counsel request prior subsequent to March is dis- tilled below on critical dates and time focusing frames: (the

In to December respect date of the tennis court mur- der), there is no documentation indicating that defendant Pratt was Cointelpro absence for “neutralization.” “targeted” discloses evidence which with the such documentation is consistent as a stu- enrolled September had come to California just Pratt BPP. UCLA, Carter joined Prentice (Bunchy) dent at met A1 there is date although on that no rank in the party hierarchy Pratt held Carter. Bunchy that he was a bodyguard evidence (Julio) Butler that Julius Nor does the FBI indicate documentation had any or that the FBI FBI as an informant had been enlisted date. whatsoever of that contacts with him other (the sealed Butler date Julius gave In respect August Pratt as the letter implicating Rice envelope Sergeant containing Julius murderer), reports showing court there are no FBI tennis him had or the FBI even contacted Butler was an FBI informant and tenor of FBI contacts contrary as of that date. To the content 19, Rice dated November that date affidavit of Sergeant and an after were 1979, that while FBI agents counsel indicate supplied defense (Butler’s) decision to write part aware of “Julio” had no in his they friend, Rice, for safekeeping. letter and to his give Sergeant FBI records FBI disclose that the first contacted Butler August after 10, 1969. The of Au- content and tenor an FBI contact with Butler on (dictated gust no FBI contacts and prior indicates 8/14/69), BPP, discloses Butler’s disenchantment of the his fear death from of members, BPP and that he was his a .45 questioned possession about caliber Arms Thompson submachine in violation of National gun Control Act.24

24 Following August is the of an with Butler: report FBI interview dated “Date—8/14/69 California, Drive, Angeles, Los of tele- Butler, Hillcrest Carl “JULIUS 2807-1/2 731-1069, contacted at Avenue and 29th phone number was the corner Potomac Street, interviewing identity Angeles, He was of the of the Los California. informed following information. agents purpose supplied and the of the interview. He (BPP) in joined Party said the Black the summer that he Panther “BUTLER expelled August was was 1969. He said that he contact- and was an active member until he having Angeles the Los leaders of the trouble he ed BOBBIE about the Seale writing stating in a position paper why he had acted BPP and stated manner intention paper contrary him not to bother because the party policey told SEALE [sic]. longer relate leaders of the not be read. said that he no would could BUTLER longer changed and no rel- purposes of the BPP had BPP because aims and hung up Los He said had on several of the people. evant to the needs of the that he PRATT, also known Gerónimo and Angeles BPP which includes ELMER as leaders Blue, things. do He declined LEWIS, known as when asked to certain also LEE ROGER worked for Black cause be- what he asked to do. He added that he to elaborate was for ‘his He added that people.’ the BPP came and intended to work fore into existence the trial the evidence was to the effect that re- During Sergeant Rice quested permission Butler’s to turn the sealed letter over to his California, Congress, Angeles, he was a member of the Black member in the BPP. Los before he was a degenerated original high goals “BUTLER said that the BPP had from its and was only thing now similar to a ‘Black Mafia.’ He said that the that concerned the leaders Party pockets of the was how to line their own in the easiest manner. He described the Party petty group any necessary criminals who would take action to further many their own desires. He the members of BPP added that feel as does and that Party falling apart. Party’s newspapers, said that funds for the activities came from sale “BUTLER raising parties. fund rallies and donations from interested He stated he did not know any parties money say of the who money interested donated could not if organizations came from money outside the United States. He said that the that is now leaders, being being easy being obtained used to make life for the instead of used for good community Party. of the Black by saying He illustrated this that the jail leaders would be bailed out of several times while the rank and file member would jail. be left in leaders when he BUTLER described himself as above the rank and top file but below the bond, currently using the BPP. He said he was out on his own (deletion) (deletion) money, involving in an up (deletion). case which comes in court disagreed said that because he had with the BPP leaders and because he he “BUTLER orders, further, carry had refused to has received explain out some of their which he would not implied several threats on his life. The threats were specific rather than and were received people anonymous both from known and as telephone calls. He said that both ‘Blue’ and ‘Gerónimo’ had indirectly implied going that he was to be killed. He believes danger. that his life is in constant He said that he becoming believes he is paranoid over the whole He usually added that he pistol per- carries a on his situation. house, son when he is on the street. When he is in the he has barricade on his bedroom window and is unable sleep to well. He said that he believes that he will be shot or attacked from ambush when the Panthers right. feel the time is only “BUTLER said people that the white personally he knows of friendly are to (deletion). the BPP are He said he was at persons another white house for a par- social ty gave but did not know party who or where the house is located. “BUTLER said that he has containing relating written a letter information to an in- volvement of BPP members in an ‘put gas affair that could them in the chamber.’ He said he was a witness to this explain affair but would not further. He added that the given letter was to a friend. interview, point “At this (deletion) BUTLER was shown a form on which rights. was written his He read the form rights, and stated that he understood his willing declined, however, questions. to answer sign He to the waiver form. “BUTLER supplied the information as follows voluntarily: “BUTLER said that he at one personal possession time had Thompson of a .45 caliber gun. sub-machine bought He said he weapon ago some [s/'c] time an individ- from ual he locations, declined to name. He said he maintained this weapon at various including apartment. Thompson He said that his being held by a friend of his in a place. give safe He declined to further detail. He would weapon not state if the had been used to commit crime. give signed He further declined to statement of the above information. “When BUTLER was asked Angeles to come to the Los Office of the voluntarily FBI questioning, for further 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.” of the the existence be because Rice’s) opened superiors (Sergeant and that security internal L.A.P.D. known to letter was sealed (See trial evi- matter. for an unrelated (Rice) investigation was under" dence, ante.) the circum- about to any questions objection trial counsel's Defense sustained. In support letter was delivery surrounding

stances defense coun- present this court before corpus habeas for petition Rice under Du Wayne a declaration with the court sel have filed that FBI agents stating November dated penalty perjury Rice and asked Sergeant envelope the sealed Butler hand observed ask But- agents Rice told him. Butler had given Rice what it was did but Butler “Julio” the name Butler using called after ler and they area.25 and left the not respond is as follows: Wayne Rice dated November 25 Thedeclaration of Du Rice, “I, penalty perjury as follows: DuWayne declare under police until 1975 when I left the Angeles Police Officer from 1955 “I was a Los by Sammy Jr. presently employed

force. I am Davis Butler, mine, called me and asked me then a friend of “Sometime in 1969 Mr. Julio Angeles; proceeded I then to the streetcorner in Los to meet him at a streetcorner [sic] gave envelope that was sealed Mr. Butler me where I met Mr. Butler. [sic] only open upon his death. He policy’ ‘insurance asked me to hold it for him as an did and do as he had agreed I to hold the letter me the contents of the letter. not tell asked. by two men who away approached distance I was “As Mr. Butler walked a short given Butler had agents and asked me for whatever Julio identified themselves as F.B.I. it, by, and as he was still close and told them to ask Butler me. I refused sight. within Julio, indicating familiarity me between the yelled by the name They to him they approch did not agents respond did not F.B.I. and Julio Butler. Julio Butler soon after. him. Butler left and I also left then [sic] fact, to give agents open the letter or the letter. In “At this time I did not the F.B.I. gave receiving the let- Butler me. Soon after day, this ter, I have never read the letter Mr. his safe Department placed who it in gave Captain Henry I it to of the L.A. Police deposit box. incident, jus- indict me for obstruction The F.B.I. threatened to “Soon after this refusing over the letter to them. tice for to turn Angeles fight police with a white Los year time I was involved in a “Some the next me, subject allegations against I became the of an fight, Due this and other officer. internal geles to An- During investigation questioned by I was the Los investigation. police given me and ordered to turn regarding Julio Butler had Department Police what refused, being fired for I was threatened with police department. When I it over to the refusing a direct order. receiving except Captain letter L.A.P.D. about anyone “I had not told in the subject of the myself Butler and were never Henry. Any contacts between Julio investigation L.A.P.D. against by charges brought me the internal questioned me about agents came to see me and “During investigation F.B.I. this' give I them agents demanded that given me in 1969. The F.B.I. what Julio Butler had they Julio Butler told they a letter and said I asked them how knew it was ‘the letter.’ them he had so, Julio Butler should ask given I them if that was me a letter. informed to the evidence point indirect of direct and pieces Three important had writing in Butler’s part FBI had no fact that letter in the murder Pratt which implicated thereof of the contents knowledge 18, December 1968. Olsen on of Caroline to the FBI the letter Butler did not

First, give that Julius it is noted to be only Rice) safekeeping for (Sergeant trusted friend but to a No- dated Rice’s declaration Sergeant the event of his death. opened the FBI ante) although indicates that 1979, (see 25, fn. vember he was and that Black Panther was a were aware that Butler agents rather than to a friend the letter gave since Butler called “Julio” con- what was did not know that the agents to respond FBI and refused reveal Furthermore, have failed to FBI records tained in the letter. the first con- August or before with Butler on official contact 13, 1969. tact on being August

Second, if FBI with dictates that the aid of local law en- logic forcement had intended officers Pratt and to “neutralize” him targeted him for the December murder of Caroline Olsen “framing” would not have waited 14 months after the letter was they over handed Rice to have the contents of the sealed letter Sergeant disclosed. Moreover, relationship Butler’s Pratt had changed dramatically 1969. the assassination of August Following Carter and Bunchy John BPP at UCLA the National of 1969 had elevat- Huggins April ed Pratt him minister of top leadership position by naming date, defense of the southern California branch of the As of that party. related, as hereinbefore Butler had become disenchanted with the meth- give me to them the letter. after, give police the letter to the au- “Soon Julio Butler called me and asked me why I him he had told them about the letter since thorities. told him I would but asked refusing give gootten I fired for it to the FBI and the LAPD. He had almost [ízc] him, ‘jamming sorry, putting pressure said he was but FBI was him’ and give that I should the letter to them. given Henry give “I I had him and he did. I Captain then asked me the letter that gave police department. superior then it to a in the criminally prosecuted I would be police “Soon later I was informed officials that withholding felony. they I if evidence about the commission of a told them looked it, original envelope they easily envelope at the see that the had the seal on that I could it, know opened had never and that I did not the contents of the letter. asking give prior “I did not to either the FBI or the LAPD to Julio Butler the letter open given my promise me to do so because I had to Mr. Butler that I would not give anyone me to do so or until his death. letter or it to until he asked do testify “I will in a court of law to the above facts if I am asked to so. that, knowledge, my “I the above is true and correct. swear to the best of 19, “Dated: November 1979. Wayne Du Rice” “/s/ ods used the Black Panthers and had both and had been by quit addition, Butler, from the In in fear of Pratt who had expelled party. life, threatened his had the letter to Rice as an “insur- given Sergeant (Butler’s) ance for his own policy” protection.

Third, foremost, it is inconceivable that the FBI agents could have (a) obtained the “conspiratorial” aid of the two who eyewitnesses Pratt; (b) positively identified witness Lachman who described the get- car; (c) the in the away officials Motor Vehicle of North Departments Carolina and California to establish that Pratt’s car was used in the murder; (d) the aid of ballistics Wolfer who identified the expert murder weapon order to “frame” the Nor has defendant. the defense supplied evidence to this any cognizable court which refutes the verac- evidence, ity or of the accuracy above all which corroborated Butler’s testimony. (over From October 14 months after the sealed envelope Butler), was given envelope Rice when the sealed Sergeant by opened, to and the date of and the trial the FBI doc- including through uments supplied do not establish that Butler either “worked” for or was (in (See an “informant” law enforcement for the parlance) FBI. discus- sion, infra.)

The trial evidence showed that the letter was because Ser- opened Rice was under internal geant investigation investigators L.A.P.D. who knew of the existence of the sealed letter and he asked Butler if he could turn it over to Rice’s dec- investigators. Sergeant (see 25, ante) laration under oath dated November fn. indicates that Butler sealed Sergeant also authorized Rice turn the over to the the FBI envelope investigators L.A.P.D. internal because in- him.” It would be unnatural for the FBI not to be “jamming quisitive about the contents of the sealed once aware of its envelope existence. The FBI furnished this court contain information that reports FBI time between period August contacted Butler for agents BPP, in the first his involvement April concerning then in with his National Firearm Control connection violation of the Act and for racial unrest and violence finally propensity relative FBI dated Au- report the black As noted the community. previously 14, 1969, (see 24, ante) shows Butler was interviewed FBI gust fn. BPP, told them of his disenchantment with the his fear agents he was to be killed and the fact that he had written a letter con- going BPP members an information an involvement of relating

taining ex- them in chamber”—“but would not “put affair that could the gas friend.” then and “that the letter was to a Butler plain given further” gun his about a .45 caliber submachine given rights questioned (Butler) he declined name. individual who 1969, 12, FBI again An FBI indicates report September agents dated Butler, his a .45 again him about gave inquired contacted rights But- caliber Butler in October 1968. Thompson gun bought submachine ler but would not elaborate gun told them he machine disposed “he did not want to ‘jam’ anyone.” because [Butler] 30, 1969, An shows that Butler was report again FBI dated October the .45 FBI his about given rights, questioned contacted by agents, ad- at which time Butler “refused to Thompson gun caliber submachine a and stated that “he mit that he ever owned or such possessed” weapon now” information and refused to admitting anything give not Act by violation of the National Firearms any possible concerning himself. 7, 1969, willing that he was indicates

An November FBI dated report basis but that FBI a confidential on information provide as PRI.” potential FBI wished “to determine that FBI An December indicates report agents FBI dated “He report Butler on November 1969. states: contacted [But- at the heard federal authorities checking advised he ler] if he had been purchasing to determine Surplus Western Store [Butler] interested, if he even (Butler) He said the FBI does not weapons.” was, does own Surplus Magnum know Store but where Western which elsewhere. purchased 1969, April December reports FBI from

Seven Los BPP such matters as Angeles referred to many deletions mainly of A1 Prentice killing since the e.g., membership weaponry, rec- only special in the were allowed memberships party new Carter members; BPP had Angeles “that Los existing ommendation “unable to rifles and and since was pistols” tried silencers for to buy some”; “an source” and that unknown them tried to make purchase they had a launcher and BPP rocket stated that “the Oakland allegedly Information, Eldridge had .50 caliber Minister of BPP Cleaver, Pratt mention of defendant on a truck.” The only machine mounted gun in the knowledge was common was “that Pratt had a machine gun There was no men- pistol.” BPP” also had a caliber .45 and that “Pratt in these court murder” contained respect tion of Pratt in to the “tennis reports.

(The their in- FBI with Butler concerning series of contacts foregoing Act in to his respect of National Firearms violations vestigation possible of a .45 caliber submachine could purchase Thompson gun and disposal was” explain Butler’s statement to Rice that “the FBI Sergeant putting him, 25, ante.\) pressure on fn. “jamming him.” [See 31, 1970, 28, FBI Monthly reports period July through April for the 20, 1971, FBI contacts with except report show January Butler and each contains the statement: “source stat- following general ed that believes the though he for racial unrest and general propensity violence to exist in areas he was unaware of intended or ghetto possible outbreaks at time.”

An FBI report Butler, dated states: Carl January “Julius Drive, Hillcrest advised has telephonically that he not been 2807-1/2 affiliated with (BPP) the Black Panther Party since his expulsion 1969. He said he knows an active BPP nothing regarding underground and has no intention of with the reaffiliating BPP.

“He stated he had furnished implicating Elmer Pratt information Monica, California, murder at Santa thought he was go- ing be called to in the testify against Pratt matter.

“He stated Adams, he still is employed as a beautician at 4520 West Los Angeles.” In FBI respect documents indicating Pratt’s where- defendant

abouts on (the December day murder), the tennis court only two were discovered which are remotely relevant defendant Pratt’s “alibi” defense. One report indexed under the name Kathleen Cleaver states: “On (deletion) (reliable) 12/19/68, reported that on evening 12/18/68,

Bobby Seale stated identified, going pick up people, some not including Kathleen (deletion) go residence of at [Cleaver] 7:30 PM The name the person (12/18/68).” whose residence the (See fn. of Dr. Shapiro. released later

people going infra.) Huggins, John Jerome The under name report other indexed of source, sensitive, reliable

Jr., (deletion) a states: highly “On 12/26/68, costs, as that of reported at must be all protected whose identity in arrived Oakland. known as Gerónimo L.A. brother an 12/20/68, not con- Gerónimo was as of reported Source further 12/23/68, reported but he headquarters nected with National BPP BPP who the National representative still in town. He was told by cool, indicated are.’ Source stay you talked to him that ‘that’s where that the inference was that Gerónimo was hiding from someone. ^[11] Los if is an alias used will determine if Gerónimo Angeles possible Subject.” defendant’s to and their relevancy

The two FBI above reports quoted discussed corpus for are petition habeas infra. letter dated camp, by in the In to FBI respect informants defense FBI, a 1980, Colwell, of the sent letter 16, acting Lee director

January the State of California re- Deukmejian of to General Attorney George General Deputy Attorney California request from sponding to 1980, 7, of documents enclosing pages Michael on Nash January 2 pages the FBI and Julius Butler and of forth contacts between setting in late defendant Pratt’s whereabouts De- documents in to relationship 1968,26 which been herein. previously cember of have summarized Acting Deukmejian Attorney 26 Theletter from Director Colwell to General dated 16, 1980, January reads as follows: requested Cubbage, “Enclosed in a telephone Roger as conversation between Attor- Division, Justice, ney, S. Department Deputy Attorney Criminal U. General 7, Nash, January pages Michael on are 40 of documents which set forth contacts pages between FBI and Julius and two documents indicate Butler Pratt’s through whereabouts December These were in late of 1968. documents located review California, Angeles, of files Headquarters. related to Julius Butler at Los and FBI All However, contacts should in to with Butler be contained these files. all references Ju- Angeles lius Butler’s FBI Headquarters name in Los and at have-not been reviewed Therefore, due to time while manpower constraints and cost considerations. not n probable, may exists exist not possibility that additional contacts that were revealed during this voluminous review. response Page “In question appears top to the to the reason at ‘Julius’ 2, 1969, Pratt, Angeles report you a Los gressman dated June on which was furnished to Con- indexing McCloskey, appears purposes. meeting for FBI name Page early referred to 13 of this held residence of Butler report at the Julius in page not of the while he was the source information contained on this report, However, indexing Headquarters marked Carl name was FBI as ‘Julius copy Butler.’ Xeroxing you. process only ‘Julius’ on the furnished remained relating following FBI “The review of the files Pratt matter disclosed the By letter dated Deputy General Nash for- July Attorney court, counsel, warded copies to defense of a letter copy 1980) Mullen, Jr., same date received from Francis M. (July FBI, executive assistant director of the to two pertaining informants who position obtain information on defendant de- Pratt’s fense The letter an strategy.27 contained offer to submit the documents respect two informants to this court for “in camera ex parte inspection.” This court FBI accepted the offer and the in conducted inspection camera on August 1980. Our in inspection camera con- firmed that the two informants did not at the trial and testify the FBI the analysis of documents was in inspected accurate all essentially respects. information: “During period surrounding pretrial stages, the FBI the of time the murder trial and reporting part had investi- informants on Pratt and his close associates as of the FBI’s

gative responsibilities concerning reported Party. the Black Panther These informants on Pratt’s conversations and activities. “Among following the items reported were the from one of the above informants: 1) happy present lawyer. “Item Pratt was not Problems in with his 2) by “Item details FBI with the of Pratt’s arrest the were discussed associates, including Pratt’s close former attorneys. one of his 3) obtaining “Item Pratt was interested in a witness or witnesses to Julius refute showing testimony by against Butler’s grudge that Butler him. harbored 4) “Item" of attorney’s Information discussed in one Pratt’s former con- offices strategies potential appear cerned to be for a used if Pratt were convicted. analyzed by 5) “Item The testimony key of was witnesses individuals associated with the Pratt defense team. “It should be understood that no record was located FBI review Pratt the of the any matter that information received from this informant was referred to the Los An- geles to, County Attorney’s prior during District Office or after the Pratt murder trial briefing until of Department that Office of Justice and the FBI Decem- ber 1979. “Further, informant, the FBI only any review located one instance where FBI includ- one, ing reported this any obtained and information that be could construed as defense strategy in Pratt trial. It should be noted in this that instance there was indica- no any tion located in FBI attorney present files that during the discussion. It should also be thing only noted this is any- instance located wherein informant reported might strategy be as construed defense Pratt trial. On the other reported occasions only presence- knowledge the informant meeting. at or a “It clearly should also be understood that the FBI review this matter did not lo- any cate could any strategy indication that defense any information or that information that possibly have been construed as defense strategy Pratt was ever out- disseminated briefings side the FBI until the in December of 1979. This testify informant did not trial, nor any Pratt did other FBI informant.” Muller, Jr., July 27 Theletter from M. dated reads as Francis follows: Investigation (1) prior “Reference is made between Bureau of to contacts Federal (FBI) (DAG) Deputy Attorney regarding and Nash officials General Michael informa- Pratt, (2) relating you, tion contained FBI files to Elmer ‘Gerónimo’ our letter 16, 1980, January you provided copies dated were of FBI documents for wherein Michael 22, 1980, General Attorney By Deputy letter dated August return, this court Nash, respondent’s supplied supplement as a Corpus in the California Writ of Petition for Habeas your responding to Pratt’s use in Courts, (3) Inquiry,’ dated March ‘Synopsis Pratt State sent to office. your furnished to McCloskey, previously has been Congressman and which in order determine certain documents “In an FBI Force reviewed late Task impact on Pratt’s trial Intelligence Program had FBI’s whether the Counter forth the Synopsis set Murder.’ Referenced letter for the ‘Tennis Court conviction docu- voluntarily processed has The FBI findings FBI’s as a result of this review. processing (using of Information Act by the Force Freedom ments located Task provided copy documents to Pratt. We have these procedures) and released them well, Nash, for Writ of Habeas responding to Pratt’s Petition to DAG for his use Corpus. Headquarters, employees the Free- FBI During “I. review of documents at these Division, Branch, Management found Information—Privacy Acts Records dom of access information appeared who to have had to two FBI informants references office in- strategy. Accordingly, Bureau decided to review field about defense you pertinent ensure are aware all on these two individuals to formant files information regarding this matter. 17-18, 1980, files two office informant on these individuals July “On the field located, reviewed, Headquar- to FBI and the documents returned pertinent documents we analysis. ters for Based the Task Force review found: on “(1) strategy position in a to obtain on defense Both informants were information regarding proceedings wherein Pratt was criminal defendant. information, “(2) they position such the informant re- While were in a to obtain ports state: defendant, “(a) during period disappeared Pratt criminal he when was a contingent going purpose leading for of of Black Pan- would be ther troops; to North Vietnam the (BPP) against Party sympathizers military in a offensive American members and brilliant, “(b) caught legal attorneys exceptionally up of Pratt’s was was in the one Pratt), (it believed) Elmer and had was contact- (particularly defense of BPP members 28, 1971; ed Pratt on March “(c) strategy [however, meeting which discussed Pratt there was a at defense was meeting, present was during record does not establish that the informant was not at this strategy, oif and the files do not disclose the nature of the defense the discussion strategy]; 1, 1971, “(d) May attorney longer as of a defense was no as active the Pratt case commitments; of other because December, “(e) plans being smuggle made BPP to Pratt by as of country; of out 12, 1970, “(0 Angeles had September as of a bench warrant been issued Los for trial, Attorney appear McKissack because of failure to the Pratt and McKissack appear intended to the Court. before is no in the records the FBI disseminated infor- “There indication that of this prosecutors. to mant information the local containing paraphrased “We have rather than released the documents the informant order, however, recognize, protect information in that our are the identities of our sources. We paraphrase may not be sufficient to enable the Court to reach We a decision. camera, therefore, willing, documents Court for to submit relevant an in course, parte ex we inspection. Of must be assured that the identities of our sources protected. will be 16, 1980, documents, January you, “II. letter we in- In our released a number from “the thousands defense additional information gleaned counsel and not petitioner’s possession” which have been in documents [Pratt’s] are not exculpatory filed defendant Pratt with court which by that tend to and refute defendant’s claim inculpatory defendant but be he For additional documentation example was “framed” the FBI. discloses:

(1) witness Kathleen Cleaver testified at Although defense Pratt she San from December bay trial that Francisco area part 13 to an FBI dated states in that report January reliable, (deletion) sensitive, “on whose iden- highly source 12/26/68, costs, tity protected must be at all advised Kathleen Cleaver went to Los California reportedly night Angeles, 12/23/68 Shirley attend a the actress.” party given her [szc], McClain (2) Defendant Pratt of trial that he had fa- at time testified always consisting cial hair of a and chin hair but shaved his chin moustache off eluding the document Appendix see, attached you here A.* As can we excised the name of the owner of the residence mentioned in the document. This excision was tak pursuant en a privacy exemption Act, in the Freedom of Information and because identity—Dr. owner’s Shapiro—appeared to be of no value to Pratt. asserted Pratt in bis brief evidence of a was at murder; the home of David evening Hilliard on the gathering Shapiro’s at Dr. residence seemed irrelevant. trial, “We recently reviewed our transcript notes from the Pratt’s murder and as [†] releasing a result of review we Shapiro’s Appendix are Dr. See Shapiro’s concluded Dr. that name should be released. “The FBI Task Force review of response this matter in questions posed continues to Edwards, by Congressman Don Chairman of the Subcommittee on Civil and Constitu- Rights tional the Judiciary. of Committee on the process conducting We in the are of past interviews of employees reviewing current of the FBI and at documents both FBI Headquarters and field It is anticipated investigation offices. that will be com-. pleted days, within 60-90 we expect and while do not that additional information will discovered, occurs, you be if this promptly will be notified.” * Appendix to as A the letter read follows: “(deletion)AC SAN FRANCISCO 12/19/68 “SA “Kathleen cleaver - “(deletion) W BPP (reliable) (deletion) reported evening “On that 12/19/68, on BOBBY 12/18/68, up identified, going pick people, including SEALE he was some stated not KATH- go (deletion) LEEN and to the residence of at PM7:30 (12/18/68).” 1979, part Mullen stated: “In the Fall of as point at this Mr. a footnote † In transcript reviewed the of Pratt’s murder a Task Force member was reviewed Los witnesses.” trial. inquiry, Pratt summarizing Angeles, were made the in and notes tes transcript timony of

hair for FBI Carter’s funeral in late 1969. An Bunchy January report 2, 1969, (deletion) states “on there was in- advised that January dividual the name who was a member of the Los ‘Gerónimo’ BPP and a close associate Angeles ‘underground’ of Al Prentice male, The source described this individual about Negro, Carter. build, 5'7", years of age, stocky about com- single, unemployed, light (Italics added.) and clean plexion, shaven.” (3) special FBI April Another states “on report Office, 2506 Hillcrest FBI located Pratt of the Los agents Angeles him. denied his Drive, to interview attempted Los Angeles, Pratt position Depu- that he holds affiliation with the BPP and fact He BPP. Minister Defense for Southern California ty past acquaintances admitted Carter ‘Bunchie’ Al Prentice had interviewed they he met when acknowledged Agents had 25, report April An FBI dated the time of death.” prior Carter 1969, of the BPP Southern “is head currently states that Pratt been active extremely has “subject California” and [Pratt] area, Angeles particu- in the BPP in Los leadership a assuming position fell from the favor of national since Le Grant Banks Shermont larly indicates should clearly leadership position of the BPP. Pratt’s office two Index.” These Index and Agitator be included on the Security did attribute significance FBI not apparently reflect that the reports 1969, well after “tennis until April Pratt as Black Panther on December 1968. which court murder” occurred records, (4) Deputy review of the FBI As result of the exhaustive in De- “Prior indictment Nash states that Attorney General [Pratt’s] with the connecting FBI documents cember there are no [Pratt] murder,” report February an FBI dated attaching tennis court (deletions) Department Los Police Angeles that “on stating 2/16/71 (LAPD), grand handed Angeles County jury a Los advised 12/4/70 with the individual captioned indictment charging down secret [Pratt] the charges the contains a list of Thereafter following:...” report crime and description case a brief of the Pratt in the instant and against on in De- against that “formal were charges brought Pratt 2/16/71 Court, states report Another Angeles.” Los Superior partment ’ Police and Angeles Department liaison with the Los “will maintain in- time, reports subsequent Pratt”; the reinterview Elmer appropriate trial intended to FBI the course of the and dicate that the followed in the of light Pratt had been “reevaluated reinterview Pratt because from officially expelled and “although the Index” Security [Pratt was] the doctrines espouse phi-' continues to and the Black Panther Party,!28! his activities included “acts to this States” as losophies inimical United an Party, organi- of the Black Panther of violence in behalf perpetrated the States.” zation inimical to United following January excerpt is from an article issue of the 28 The in.the Party Magazine by Huey Black Panther authored Newton: Branches, Party informing all and Chapters, “The Black Panther is N.C.C.F.’s the Pratt, People purging mass of are that we from our ranks Elmer Gerard more common- ly known as Gerónimo ‘G’. committing flagrant to our Party’s principles, “In addition violations of this man ulti- mately People although allegiance struggle showed that he claimed and devotion to the of the oppression allegiance Party, from and to the Black Panther his devotion and ways still Pig and rules the Power When he left of Structure. the Marine CIA, Special Berets), Corps’ (having agency Forces trained Green the armed of the he

joined the Party. proven beyond Black Panther But he has doubt he that is dedi- Vietnam, today Pig Agency killing cated to that as he was when he was in innocent destroy’ Vietnamese women and and children various ‘search missions. allegiances, “It certain that we were under an he illusion that had switched for his (which tell) lies he extremely he admitted had been trained to were convincing. For the Party everything power Black Panther did allow longer our to this man—who can no such, be considered compassion understanding—to for he lacks human and free remain efforts, the from vicious of pigs. jackanape clutches the As a result of our this informed Party the Central Committee of our of had—namely money. certain demands he He fools, Party organized advised the that if his he had some they other and armed met, Staff, (assassinate) demands were not he orí would 'move our of Chief nape David Hilliard. This stated further that he in fact didn’t like the manner in which business, the Chief of Staff Party’s conducted himself or the and he felt he needed anyway. to be removed together, He also mentioned that once forces were he would ‘get Staff, (assassinate) rid also our Assistant Chief of June Hilliard. “But, disgraceful, the most counter-revolutionary, piggish dog-like thing pig this ideas, done openly go along has is to state Party that if the would not with his he would Supreme assassinate the Commander and Minister Defense of the Black Panther Party, Huey P. Newton. sufficient, “As if through this were not money used he had obtained Party name of the self and his eye purchase to purpose indulging alcohol and narcotics for the him- stupid bourgeois, orgiastic nightly revelry. (Without cohorts in the direct Party’s leadership, life.) personally pleasure-seeking he maintained a “During is, Dallas, period—that prior this the arrests in Texas on last December fo Party 8th and after he left period, capture by pigs—during his obvious tasks to avoid 1) many young Gerónimo moving violated Black sisters he met while from town town, fools; forcing to the he met know he was ed to 2) them to submit himself and the other left a trail wide follow, pigs thereby exposing Party pigs, letting people most of the 3) Party; a member of the Black Panther harassed and intimidat- many contact, people demanding with whom he came into their aid under lives; 4) purchased (‘Christmas’ the threat of their presents being high ‘Christmas’ businessmen; holiday pig and, capitalists, particularly period the avaricious during which the of People exploited highest.), masses are to send to his and others’ families friends. In the counter-revolutionary par- addition to nature of this act, provided ticular he would have exposure additional of their location—which (secret). have been clandestine Stafford, “Finally, hereby purged—Will Gerónimo and the others who are Wilfred Holiday, George organize renegades ‘Crutch’ Lloyd—attempted other from our “(dele- (5) violence states FBI records for regarding propensity tion) several members of the Los advised that Gerónimo among armed robberies and conducting BPP who are several Angeles burglar-. in ies and around the Los area.” Angeles

Issues than narrower issues presenting an By way original proceeding Parker, defendant before pressed superior Judge those in the court seeks These, three howev- grounds. three forms of relief based on alternative down into er, essentially in boil handling for the sake of and ease clarity two contentions as follows: (1979) 24 Court Cal.3d In v. Municipal reliance on Barber

First: that the un P.2d defendant asserts 818], Cal.Rptr. [157 be dismissed 1972 should of which he convicted charges derlying because the FBI prison be released from and he should immediately the trial. to and camp” prior during in the defense “had spy be either granted alternative that he in the urges Defendant Second: wit- (1) a key prosecution because evidentiary hearing a new trial or an (Butler) FBI, Butler, for the a fact ness, informant Julius C. trial; (2) pretrial Naveau lied at that Officer the original denied at that a Joe when he testified weapon the murder suppress motion to of Carter and killing told him after campus Brown on UCLA weapons to get home going Huggins’ that the Panthers Huggins of- kill L.A.P.D. and to the US group to retaliate explosives against and evidence, surveillance ficers; (3) concealed and withheld the FBI and (defendant’s) defense. corroborative, alibi of his part, band, roving certainly counter-revolutionary, little rebel into a Party and themselves orders, People violating the masses of but also adhering Party’s principles or not expel And we them baby’s crib. They snakes who crawled into are like themselves. ranks, good say them We no word of we such snakes. have our would from in the someday pigs like all other burn People will let these have that the faith Fires of Reaction. Pratt), known, then, Lane (Elmer his wife Sandra Gerard that Gerónimo “Let be Stafford, him), Will (who worked in concert with or ‘Red’ or Sandra Holmes Pratt expelled from the George purged are forever Holiday Lloyd ‘Crutch’ Wilfred attempts who to aid community worker Party or Party. Any member Black Panther part shall be considered form or manner with them them communicate Party. TO ALL POWER destroy the Black Panther undermine and conspiracy their THE PEOPLE Huey Newton P. “/s/ Supreme Commander of Defense Minister Party” Black Panther

Discussion

I Is Pratt entitled to a se per dismissal the under defendant Court, lying charges to Barber v. pursuant Municipal supra, Cal .3d 742?

Defendant Pratt first contends that per he is entitled to a se dismissal charges of which he convicted underlying pursuant in 1972 Court, to Barber v. Municipal 24 Cal. 3d because FBI— supra, Cointelpro informants were “spies” camp defense prior to dur ing the trial.

We conclude that defendant’s reliance on Barber is misplaced and the Barber decision is factually distinguishable clearly inapplicable.

In Barber the in a defendants/petitioners participated “sit-in” near the site of the nuclear Canyon power to demonstrate facility Diablo their opposition to the use of nuclear power generate energy. They were arrested and with the charged misdemeanors of trespass fail- ure to disperse. trial,

Before the date set for defendants that one learned code- fendants was an undercover police officer. There was evidence that following disclosure of the undercover agent, defendants became “paranoid” and cooperate reluctant with their fully attorney. They moved to dismiss on the grounds presence police officer confidential during had them of attorney-client meetings deprived their rights the effective assistance of counsel and due of law. process The trial court denied the motion on the that there had ground been no evidence to show that information the officer had been gained by transmitted to but ruled that the prosecution, People could not use any evidence obtained by the officer the fruits thereof nor put rebuttal to defense evidence without first proving beyond reasonable doubt that such rebuttal evidence was obtained of the ac- independently tivities the undercover officer.

The state Supreme Court faced with writ petition for a of prohibi- tion filed in Barber defendants addressed narrow issue as to when his constitutional right for an accused proper remedy

“the undercover officer police has denied the actions by counsel been the attorney-client as and attends confidential who a codefendant poses (24 745.) at accused.” Cal.3d p. conferences of the the to counsel right guaranteed in Barber held that The majority in abso- the to communicate right Constitution embodies the California when state is violated a one’s and that attorney right lute privacy In ordering conferences. attorney-client at confidential agent present the ef- further held that only the court prohibition issuance of writ of the charges against per underlying fective was se dismissal remedy was an ex- for such a drastic remedy the defendants. The rationale because inadequate as the trial court devised clusionary remedy the defendants and for proof would difficult problems involve to refrain from similar agents state provide any would not incentive for violations.29 the instant case factual distinctions between significant

Some the as and Barber are follows:

First, here, Barber police where an undercover officer of the unlike codefendant, who local as a department posed person(s) sheriff’s Cointelpro discussions in- privy camp or to defense were present FBI, (not codefendants) formants a federal officers police (not local) a state or agency.

Second, offi- in Barber out that the undercover pointed the majority conferences attorney-client cer attended as a codefendant confidential and even volunteered “went into detail” on defense strategy which of the fences and on map gates and did a detailed prepare prepare of an which did not include “the presence site for of defense purposes opened at a location.” gate key (filed P.2d (1979) Cal.Rptr. 598 In re 24 Cal.3d 769 29 In Johnson [157 834] decision) Supreme Court in majority on state date as the Barber the same same

Barber, Barber, persons trespassing and citing judgments of convicted of vacated the discharged from all restraints “since facts assembly and ordered them unlawful Here, police identity of a officer as in Barber. issues the same” substantive [were] attorney-client discovered until conferences not had attended confidential who been petitioners after had convicted. view issue in the same Supreme Court does not States Apparently United Henry (1980) 447 264 (See States v. U.S. light Supreme United [65 as the state Court. context, however, appears to be 2183].) The issue in a different 100 S.Ct. L.Ed.2d v. Morrison Supreme Court in United States pending again the United States before granted 448 906 L.Ed.2d (3d 1979) (cert. June U.S. F.2d 529 [65 Cir. 3048].) S.Ct. Cointelpro In the case at informants who were present bench such conferences as invitees of Pratt obtained attorneys only and/or passed to the FBI information which could be characterized as nature, such that defendant Pratt was with his general unhappy (Pratt) present lawyer; was interested witnesses finding show that witness key prosecution Julius Butler had “grudge” him; against of defense “alibi” witnesses was testimony key and that analyzed; discussions were conducted concerning strategies be used in appeal the Pratt As noted event was convicted. and as detail, hereinafter discussed in more the above information obtained by the informants was communicated to the FBI and not only passed on to local enforcement or to the agencies prosecuting attorney.

The identity informants was never revealed and even their exis- tence was not disclosed to state until authorities December 1979. In event even if the above general passed information had been on to (which the local police or the prosecuting infra) is denied—see attorney the information lacked detail and was such specific skimpy obvious nature not generally as to assist the prosecution or the prejudice defense.30

Third, the in majority Barber noted that the undercover officers who became intimately involved with the prior to the demonstration groups which culminated in their arrest knew that was a nonviolent group and the pointed (attended court out that all of meetings these the by officers) it was emphasized strongly that the group committed to “nonviolence” training” “nonviolent sessions were conducted which to teach designed participants how to react nonviolently to stress situations.

Here, unlike the Barber situation where local undercover officers Cointelpro infiltrated a nonviolent group, its use of informants were under the auspices of federal government serve its interest testimony 30 The record respect any “grudge” reflects in prosecution which may against witness Butler have harbored primarily supplied jury Pratt was the defendant following himself. The record also shows presentation of the de fense which included his “alibi” the only presented by witnesses rebuttal evidence prosecution was attacking not directed at the “alibi” defense but was directed at brother, Pratt, photograph supplied Sr., by defendant’s Charles E. which showed shortly Pratt’s facial hair Oldfield, after Christmas in 1968. Joseph Prosecution rebuttal witness to impeach testimony, called testified that the could photograph not have been taken at the time defendant’s brother testified since film used was not even year in May manufactured but 1969. FBI Di- perceived by organization as measure against a preventive hate group. Hoover a militant violence-prone J. as Edgar rector the violent nature purpose showing For the sole and limited instant case as distin- in the infiltrated FBI informants the group Barber, we take of the group the nonviolent nature guished from Elmer People of this court in the case of v. notice of the judicial opinion Ct. 1974) 2 Crim. 21638 (Apr. [Super. Pratt and Willie Stafford G. with Nos. A253349 No. A253348 consolidated Los Co. Angeles unpublished attached opinion heretofore foregoing A254028]. D.31 Appendix hereto fences onto

Fourth, pri- crossed over two demonstrators Barber mile from the main were one-half they vate and while property itself entrance, plant miles from the power were six and one-half they were for tres- arrested warnings disperse when to they disregarded (misdemeanors). The court also noted that to pass and failure disperse in were accom- the group they while there about 50 demonstrators were people. to 100 news media panied by 75

Here, were with rela- charged in Barber where the defendants unlike to misdemeanors and the failure (trespass minor nonviolent tively convicted, charged following was not but disperse), only defendant murder, trial, assault with in- protracted of the heinous jury of felonies robbery. to murder and armed tent commit here, the local district attorney’s of in Barber importance Fifth, great the officer. By office was of the of undercover contrast presence aware Black opinion 31 This stemmed from a shoot-out between the L.A.RD. and Panthers the defendant Pratt in the instant case was the leader of on December when deputy of chapter the BPP with the title of minister defense. southern California of group opposed single We further that in Barber the nonviolent the note while violently opposed power (group) spec- of to a broad issue of use nuclear the BPP agencies government as constitutionally of constituted of as law enforcement trum well illegal only did the amass arsenal opinion officers. The reflects that not BPP of officers, training trap police in kill weapons explosives but conducted how legally resulting in- by the service of issued search and arrest warrants resisted force police (one seriously), Compton bombed Post jury to three officers the United States (See gunned Armory. Marine Office and submachine a United States Naval Reserve D, 923.) p. Appendix foregoing jury again case bench and is not attached was not before in the at showing guilt or purposes for the the violent nature of Pratt defendant hereto group instant It is to show the militant and violent nature case. attached (BPP) distinguishing purpose which was FBI informants the sole infiltrated Barber. whatsoever, there is no short showing speculation of sheer and conjec- counsel, ture on that part prosecuting attorney defense in the instant case either was aware of FBI informants defense camp OR received or used obtained FBI any knowledge Cointel- pro informants concerning defense tactics or strategy during the preparation the trial stage during itself in 1972. To the is an contrary there affirmative in the record showing that

Cointelpro classified, was so in the highly reflected Church Com- mittee that Report, “No one outside the Bureau was supposed know Cointelpro that Bureau, existed. Even within the programs Moreover, handled on a ‘need-to-know’ basis.”32 Acting Director of the FBI Lee 16, 1980, Colwell in his letter dated January Attorney Gen- eral George Deukmejian stressed the FBI did review not uncover indication any defense any information or strategy infor- mation that could have possibly been construed as Pratt defense was ever strategy disseminated outside the FBI until December 26, ante.) (See 1979. fn. addition, Kalustian, In Richard P. district deputy attorney, case, prosecutor the trial of the filed a declaration four-page under August 32 AnFBI directive dated addressed to 22 field offices nationwide during gence Program; period including Angeles this captioned Los and San Francisco “Counterintelli Groups; Security” (later Black expanded Nationalist-Hate Internal to adding 41 field offices counterintelligence Diego) purpose Sacramento and San stated “the of this new misdirect, discredit, endeavor to expose, disrupt, is or otherwise nationalist, neutralize the their organizations activities of black hate-type groupings, and leadership, spokesmen, membership, and supporters, and counter propen to their sity for violence and civil disorder.” program “This should not program be confused with the Party, entitled ‘Communist USA, Counterintelligence Program, (Bufile 100-3-104), Security-C’ Internal which is against directed Party organizations, the program Communist and related or the enti- ‘Counterintelligence tled Program, Security, Disruption Internal of Groups’ Hate (Bufile 157-9), against is hate-type groups primarily which directed Klan and consist- ing of white memberships.” “You are also the of cautioned that nature this new is such endeavor that under no program circumstances should the existence of the made be known outside the Bureau and appropriate security within-office be operations should afforded to sensitive techniques program. considered under the counterintelligence “No program may by action under this be initiated the field with- specific prior out Bureau authorization.” 1968, 27, FBI memorandum dated September subject “Counterintelligence Program: Intelligence (Black Black Groups; Party)” Nationalist-Hate Racial Panther states “the Oakland, California, extremist BPP of prone organization rapidly is the expanding. It most violence- groups of all the extremist of violence and connections with operating now in the United States. This group ticular foreign has a record puts par- revolutionaries. It emphasis only physical on not verbal attacks but police.” also attacks on 7, this In in the court dated 1980.33 superior January of penalty perjury declaration, petition in as an exhibit to defendant’s response attached court, knowledge he had no before that he stated that corpus for habeas 7, 1980, January Attorney dated Deputy 33 The District Kalustian declaration of as reads follows: a Head County Angeles presently Los Attorney “I am for the Deputy District deputy I been a charge Protection Division. have of the Consumer Environment December, (December (16) early attorney years. In district for almost sixteen 1971, believe) assigned then—Organized Pornography Divi- I I Crime was Division). (now day, Organized and Narcotics On that or sion of the office Crime Pratt, after, pros- v. Gerard A to day assigned People I was the case of Elmer grand presented jury I it my with case. had not to ecute. This was first contact late this. case was then set for trial in anybody or discussed the with before case go to and did not to trial early January. was continued from time time December or It its trial day after last scheduled date. until or about June time, FBI did I “During by I not contacted nor contact period the above was Party. supplied was No information regarding the FBI to me this case or the Black Panther concerning Party. case the Black Panther Prior to trial the FBI this or Pratt, trial, Pratt, People prepare I for v. People v. A received another case Mr. of destructive devices found in Pratt’s car. possession A 245134. This case involved Pratt ed August, 1972. I was not contact- guilty approximately was on. case on found either, concerning regarding I FBI it. case nor did contact the the FBI time, during period of and I program this “I unaware of the FBI’s COINTELPRO reading newspapers. I left anything about it in believe did not know about until March, 1974, being promoted to Organized after Crime and Division Narcotics assigned be- being to the Pomona Branch Office. I Deputy Attorney District Head lieve program. I still had not heard COINTELPRO had Julius continuing day, I have no reason to believe “During the trial and any agency. Mr. oc- My first contact with Butler Butler ever was an informant early years he wrote the ‘insurance two and one-half after curred letter’ late years naming That was almost one and one-half Pratt as Mrs. Olsen’s killer. grand jury in the court murder. No information he testified tennis after came to for before then, then, indicating he acted an informant ever my attention or has since Party. any police while was the Black Panther agency only important me insofar as it Taylor “The case became facts the Ollie both Julius to the murder case because to the murder case. It became relevant relevant Butler and Elmer Pratt I of the facts. then contacted Ollie testified to different versions essentially corroborated Julius Butler’s version Taylor testify. Taylor’s testimony Mr. Pratt’s version. of the facts and contradicted Mr. to misdemeanors eventually to reduce Julius Butler’s convictions “I asked the court evidence, oath, (1) Taylor under that not following had furnished for the reasons: Ollie assault, charged persons in but all the other only participated had Julius Butler had, well; Taylor appeared culpable more (2) gun Pratt on Ollie and Elmer held Butler; (on plea), the others (3) only had convicted his Julius Butler been than Julius facts; years (4) elapsed had almost three and not convicted—but on the same had been events, appeared to have stabi- longer Black Panther had Butler was no since having life; was no effect on (5) pay the failure to his fine was minimal and lized (6) by law tes- law-abiding; had assisted enforcement propensity to Julius Butler his be trial; good Julius Butler to (7) no reason for appeared on his record when all there be tifying in the murder es- participants other had felony four five convictions have or felony for a defendant’s occurrence It was not an uncommon caped conviction. I completion probation. after successful be to misdemeanors convictions to reduced practical equivalent of that. accomplished the deemed Butler to have in had informant any the FBI enforcement agency or other law any the defense until December 1979.34 camp held to a to dis- duty cannot be

Logic prosecutor dictates that a state which him known prior only to trial is unknown to close evidence (4th 1977) 572 F.2d v. Cir. Reddy federal authorities. In Jones 982-983, where an statement exculpatory court held that allegedly state by was obtained and was not known authori- by federal authorities trial, was under ties until after a the state no prosecutor duty state to trial. In the disclose the statement defense counsel instant prior case, at no time was Kalustian aware of Cointel- Prosecuting Attorney pro other FBI at the time of trial. any involvement was absolutely my “There no with reduce Julius connection motion to Butler’s felo- testimony given nies to misdemeanors and in the was promise murder. No and none for in My request asked that connection. later of the court to strike the ‘force and vio- allegation imprisonment charge lence’ Julius attached false came about as a result of asking Butler’s say call he could not been whether that he had convicted of a fel- going ony. He called to tell questionnaire me he was to law school. He stated that the from the Committee of required Bar Examiners that he answer whether he had ever answer, convicted of felony. been district leged, In order to assist his I told him I would check the attorney imprisonment charge, file. I did so determined that the false as al- allegation was an It felony. only concerning irreducible was reducible if the force reason, and violence allegation was stricken. For I moved to strike and reduce charge to a misdemeanor. “During trial, possession the murder trial and the of destructive devices I had no knowledge that any agency any the FBI or law other enforcement had informant in the camp. defense or The first regarding time I learned that information Pratt’s defense strategy December, 1979, being conveyed defense was to law was enforcement in meetings with the FBI Department Attorney’s of Justice at the District and Attor- ney General’s Office. have read foregoing “I penalty perjury Declaration and I declare under that it true correct. January Angeles, “Executed on at Los California. Richard P. Kalustian" “/s/ 12, 1979, record previously 34 The shows as indicated that on representa December tives Los been held with two the United Department States met Justice and the FBI with members of the Angeles Attorney’s District office on meeting December A similar 1979. had representatives Attorney from California General’s office. At these meetings, information disclosed agencies. the FBI for the first time to these Revealed for the first time was information that a confidential FBI informant was asso jail during ciated Pratt while present he was his trial. informant meetings various Among between Pratt and members of his team. things defense other 20, 1971, the informant revealed to the that on FBI October Pratt and various mem concerning bers his team discussed various contradictions his arrest the FBI in 30, 1972, On June Texas. indicated he testify Pratt wanted witnesses to that Julius grudge had against July Butler On him. members of various Pratt’s defense team discussed the of They appeal prior possession case. discussed an on his conviction for dangerous weapons. They arguments also discussed summation Pratt’s case and strategies for appeal They if convicted. how he were talked about Kathleen Cleaver’s testimony testimony Shirley tied in with the of defense witness Hewitt. There was a general discussion of the trial. 860 distinctions be- factual of the obvious significant reason

Finally, by outlined, case, the question hereinbefore and the instant tween Barber academic. basically has retroactive effect as to whether or not Barber factual circumstances However, unique that the it is to note interesting for the ratio- underpinning not fail to a factual only supply here present also fail to dismissal rule in Barber but nale se supporting per whether decision determining any particular the criteria used for satisfy Barber retroac- Indeed to application. apply should be retroactive given fit of the facts to the instant case would be a distortion tively gross the rule. (not the fed- the California state Constitution on.

Relying exclusively Constitution)35 se dismissal per eral a chief rationale underpinning rule in was to incentive for state to refrain from provide agents Barber is not served the tule the conduct described. That purpose by applying Moreover, instances. it is axiomatic that such a past retroactively effect on federal informants since a state rule would have zero deterrent court has no or over a federal such as the authority agency, jurisdiction (See Cointelpro FBI in duties its performance of its or informants. request discussion re Pratt’s alternate for an evidentiary hearing, infra.) The criteria federal and California courts use to determine prospective whether a decision should be retroactive or given applica “(a) standards, (b) tion are to be served the new purpose by [T]he extent of the reliance law enforcement authorities on the old stan dards, (c) the effect on the administration of of a retroactive justice (Stovall (1967) application of the new standards.” v. Denno 388 U.S. 293, 1199, 1203, 297 87 1967]; L.Ed.2d S.Ct. see also v. Pryor [18 (1979) 238, 330, Court 25 Cal.3d 258 Municipal Cal.Rptr. 599 [158 835, (1977) P.2d v. 19 636]; Gainer Cal.3d 853 People Cal.Rptr. [139 861, 997, (1974) 566 P.2d 97 A.L.R.3d v. Hitch 12 Cal.3d 73]; People 9, 641, 654 527 P.2d Cal.Rptr. 361].) [117 (a) (Desist

Criteria above is of foremost v. United States importance (1969) 249 U.S. L.Ed.2d 89 S.Ct. while 1030]) [22 (c) (b) criteria are relied on more when the only purposes heavily to be served the new rule do not favor either clearly retroactivity Supreme 35 TheUnited States Court in (1966) v. United States 385 U.S. Hoffa 374, 383-386, 304-309 408], L.Ed.2d suggest S.Ct. seems to that the intrusion [17 agent of an undercover without more does not constitute a Sixth Amendment violation. Bursey (1977) The 1977 decision in v. 429 U.S. 545 L.Ed.2d [51 Weatherford 837], appears support holding. (See S.Ct. Superior (1977) also Wilson v. Court 70 Cal.App.3d Cal.Rptr. 61].) 758-760 [139

861 (Id., at 251 prospectivity. p. L.Ed.2d at In re Johnson p. 256]; [22 (1970) 404, 569, 3 Cal.3d 410 475 Cal.Rptr. 841].) P.2d [90

Generally a new rule retroactive where speaking given application a constitutional standard is announced which is to insure the necessary of the at in- “reliability process trial” to avoid fact-finding convicting nocent (Gideon person, example counsel at trial v. guaranteeing (1963) 799, 792, 372 Wainwright U.S. 335 L.Ed.2d 83 S.Ct. 93 [9 A.L.R.2d or the 733]), to confront and right cross-examine witnesses (Bruton giving incriminating pretrial statements v. United States (1968) 476, 391 U.S. 123 L.Ed.2d 88 1620]). S.Ct. [20

On the other hand decisions which vindicate interests collateral to or far removed relatively from the of the “reliability fact-finding process trial” are denied generally retroactive effect and are prospective only. Johnson, (In 404, re 412-413.) 3 Cal.3d supra, For example, an newly nounced evidentiary rules exclusionary come under this usually latter since the category rules are based on the perceived for an ef necessity fective deterrent to unreasonable police action and that would purpose not be advanced by the rule making retroactive since prior police mis conduct had already occurred and would not be corrected by releasing the defendants (See involved from their criminal culpability. Linkletter (1965) v. Walker 381 618 U.S. L.Ed.2d 85 S.Ct. 1731]; Desist [14 States, v. 244; United 394 U.S. supra, (1975) United States v. Peltier 422 531 U.S. L.Ed.2d 95 2313]; (1965) S.Ct In re Lopez [45 Cal.2d 368 Cal.Rptr. 380]; P.2d v. People Kaanehe [42 (1977) 19 Cal.3d 1 Cal.Rptr. 1028].) P.2d [136

In the instant case the obtained the FBI knowledge by infor mants in the defense did camp not on the impact “reliability fact-finding process at trial” in California’s court or assist the [the] prosecution or the defense prejudice because the information was not transmitted the FBI to the local prosecuting attorney. Insofar as the case at concerned, bench is the record indicates that presence Cointelpro informants in the defense had as camp much effect on whether or not defendant Pratt was afforded a fair trial conducted in California’s superior court as did the furniture the areas where the discussions were conducted.

Accordingly, reason of the we hold that the Barber foregoing, per se dismissal rule does not to the case at apply bench. We also conclude

862 as a of the rule to this case under its practical application matter that unique circumstances would be irreconcilable completely incompatible, rational of criminal unacceptable justice. system

II or an evidentiary to either a new trial Is Pratt entitled defendant hearing?

The Law new trial or an is entitled to either a Pratt that he argues Defendant time (a) witness Butler lied at because hearing prosecution evidentiary FBI; (b) Offi- he was an informant for when he denied that of trial the murder suppress motion to pretrial cer Naveau lied at defendant’s Brown; attributed to a Joe he testified as to statements weapon when evidence which (c) withheld surveillance the FBI concealed and (Pratt) his alibi defense that would have corroborated time of the murder of Caroline at the Area on December Bay Olsen. burden has the corpus proceeding in a habeas “petitioner which he relies sup the facts on proving

not of but also only alleging (In Lawler (1979) 195 re 23 Cal.3d his claim for relief.” port of 1257].) 588 P.2d Cal.Rptr. [150 In re case, (1978)

In the 78 Cal.App.3d Wright instant as in defendant’s asserted of Cal.Rptr. 535], discovered ground newly [144 evidence and the are somewhat blurred ground testimony perjured and his two are to certain extent arguments pertaining grounds course, admixed. “[W]hile, discovery perjured testimony evidence, will almost involve the of new these con necessarily discovery relief, are corpus stitute distinct for habeas to different grounds subject In re (See, standards must be legal separately. e.g., considered Imbler, supra, 60 Cal.2d ^[554] at pp. 560-567, 569-570 [35 Cal.Rptr. (In re 802.) Wright, supra, Cal.App.3d p. 387 P.2d 6].)”

In In re Wright a man convicted rape a writ of habeas cor sought pus on grounds of discovered evidence and false newly testimony by witness that would principal prosecution tend to his defense support that the victim had consented to an In prostitution. act of deny- den. (petn. hg. habeas corpus for" petition defendant’s ing 1978, Mosk, be J. was of the should opn. hg. Ct. May Supreme the different standards for legal set forth the Court of Appeal granted), evidence and that of tes- perjured discovered grounds newly asserted as follows: timony Test Discovered Evidence

Newly as to must be such relief new evidence corpus warrant habeas “To which the prosecution the case upon the entire structure of undermine the innocence based; petitioner’s to unerringly it must point conflicts conclusive; the new evidence it is not sufficient must be diffi would have a more presented with that the trial and presented at (In Weber, 11 Cal.3d 724 cult the trier of fact. re question for Imbler, Branch, 213-215; In re su pp. 70 Cal.2d at [...]; In re supra, 569-570; [...].) In re 29 Cal.2d 724 Lindley, 60 Cal.2d at pp. pra, (See evidence must be credible and convincing. the new Concomitantly, Branch, Weber, 723-725; In re 70 11 Cal. 3d at pp. supra, In re supra, Imbler, 214-215; (In re 78 Wright, Cal.2d at In re pp. supra.)” supra, 788, 802.) Cal.App.3d (1974)

In In re Weber 11 Cal.3d 703 523 P.2d Cal.Rptr. [114 cited in who had been convicted 229], Wright, petitioner, of solicit bribe in ing person another to offer a violation Penal Code section 653f, habeas on the basis of discovered evidence al sought corpus newly “framed” Pursuant legedly person that such other had him. indicating directions, to the Court’s a referee conducted an Supreme evidentiary existence, and effect of such evi hearing respect credibility, dence, made had petitioner concluded discovered no findings, new credible evidence the case undermining presented by prosecu tion at petitioner’s trial.

The Supreme Court the referee’s adopted findings, discharging cause, order to show and denied the It stated at “In petition. page 724: case, the present discovered evidence’ offered ‘newly by petitioner does not meet either of the tests referred to court In re Lind Branch, 2d ley, 29 Cal. and In re [...]; 70 Cal. 2d 200 In [...]. this court held that Lindley, newly discovered evidence does not war rant relief unless it is of such character will ‘as undermine completely the entire structure of the case which the upon prosecution was based.’ (P. ^[7] of 29 Cal.2d 709.) In Branch, we later indicated that newly

discovered evidence will not undermine case of the so as prosecution (1) warrant habeas corpus to relief unless the new evidence conclu- sive, (2) We there said at points innocence. unerringly pages Imbler, 214-215 of 70 Cal.2d: ‘In cases 60 Cal.2d 554 both re [In 29 Cal.2d [...]; Lindley, presented /nre the evidence supra, 709] involved, establish case petitioner’s innocence was inconclusive. Neither case, as does instant to the crime person’s another confession credibility. confessor’s a confession question Obviously another party petitioner point unerringly does exonerating pe- credited, and, innocence if case of titioner’s undermines the entire no third prosecution.’ Similarly, person here there was confession aby and no conclusive evidence exonerating petitioner pointing unerringly italics.) (Original innocence.” Test Evidence Testimony—False

Perjured 1473, the rule Penal Code section the 1975 amendment “Prior to pn perjured relief the corpus ground that to obtain habeas was Clear preponderance aby establish required petitioner testimony, trial, at testimony was adduced (1) perjured that of the evidence: state, (3) that the of the (2) representative was known to that this (In the trial. re the outcome of have affected testimony may perjured 264, 560; Illinois, Imbler, 360 U.S. v. Napue 60 Cal.2d at p. supra, (1975 Witkin, supp.) Criminal Procedure see Cal. [...]; 272 866.) p. § (Stats. 1975, 2)

“In 1975 1473 ch. Penal Code section deal- § corpus with habeas relief was amended to ing provide pertinent part: “‘(b) for, A writ of be but not limit- corpus prosecuted habeas may to, ed the following reasons: or on substantially probative material

“‘(1) False that is evidence person against or was introduced guilt punishment the issue of incarceration;... or trial to his hearing relating “‘(c) knew or should prosecution that have Any allegation (b) the false evidence referred to in subdivision known of nature of the writ of prosecution corpus brought is immaterial of a habeas pur- (In re Wright, supra, (Italics added.)” (b).’ suant subdivision 788, 807-808.) Cal.App.3d intent of the legislative analysis an exhaustive

Following 1473 in con Code section to Penal 1975 amendment above mentioned (1975) Cal.Rptr. Cal.3d 399 People v. junction [121 Ruthford Wright cases, court conclud other related 534 P.2d 1341], petitioner law that requirement preexisting ed that under “[t]he his trial was outcome of affected the may show the false evidence have sec to Penal Code amendment or the 1975 changed by not eliminated the amended statute: is for relief under required tion 1473 and still issue material or probative evidence is substantially that ‘[f]alse of such significance means false evidence guilt punishment’ (78 Cal.App.3d at of the trial....” may have affected the outcome 808-809.) pp. pointed

Moreover, 8 at 811-812 pages court in footnote Wright evidence be out, false part, requirement pertinent “[t]he is re- trial a materiality such have the outcome may affected doubt’ standard a reasonable beyond whereas the ‘harmless quirement, (See, problem prejudice. e.g., said to be generally applicable 408.) p. concepts 14 Cal.3d at People Ruthford, supra, Although v. overlap- and bemay are related materiality obviously prejudice For applicable. be that both are ping, theoretically possible it may must show substan- petitioner it concluded that example, might be (the was have affected may tial false evidence such materiality denied trial) upon nevertheless be outcome of the but relief would (the false evidence prejudice of a lack of People showing doubt). applicable be the appears harmless a reasonable This beyond in The court of evidence cases. procedure California suppression ‘The at stated: defen- Ruthford, 14 Cal.3d People supra, page v. even after this materiality dant make a must substantial showing establishes prosecution is made is not if required reversal showing doubt.’ ...” a reasonable beyond the failure to disclose was harmless “it practice require, substantially, is the court Finally, that one who show his conviction was obtained seeks to des quote use of or otherwise prosecution’s perjured testimony knowing which is asserted was ignate specifically precise testimony are, what name or state detail the actual facts other perjured, wise with the who knew it prosecution connected identify person perjured persisted it, in using also the stating circumstances es- ” tablishing such person’s (In knowledge of the facts.... re Swain (1949) 34 Cal.2d P.2d 793].) [209 Pratt’s Request New Trial Based on Discovered Newly Defendant for

Evidence We turn first to defendant Pratt’s assertion that he is entitled to a new trial because prosecution (Julio) witness Julius Butler perjured himself when he denied the trial that during he worked for the FBI and was an informant for the L.A.P.D. or the FBI.

Defendant Pratt has seized upon the three following questions and answers during cross-examination of prosecution witness Butler in the 1,500 over pages reporter’s transcripts from about 30 witnesses as the basis for asserting that Butler himself perjured while on the stand:

“Q. Mr. [By And when were you for the working Black Cochran] Panther also Party, you working law enforcement at the same time?

“A. No. “Q. You had severed ties had with any you law enforcement? “A. That’s correct.

“Q. Have you time since Sheriffs leaving Department worked for the FBI or the CIA?

“A. No.” The above referred to the defendant colloquy by has been lifted out of context. The three questions answers immediately following above are as follows: Mr. Are now

“Q. you for the FBI [By working and the Cochran] CIA?

“A. No. Your sole

“Q. now; is as a employment beauty stylist is that correct?

“A. Exclusively. sole employment it is

“Q. your your And testimony Party? Panther in the Black membership time of your “A. That’s correct.” all six questions of the foregoing

We conclude that a fair reading defense cross-examining both the indicates that answers context to the words “work- well have referred counsel and witness Butler may as a “sustained meaning common vernacular or “worked” in the ing” task, effort..., labor, one his that affords duty or mental or physical or synonymous equiv- being accustomed means of livelihood” that fills one’s time.” alent which “stresses “employment” activity (7th (See 1972) pp. Diet. ed. Collegiate Webster’s New trial same in which the instant year we note was published [which Butler either took Thus to conclude that witness place].) reasonable his answers were did not at all or believed that give perjured testimony of questions. within the above line truthful the framework of either Suffice it to none the documentation say supplied affidavit, by way defense counsel or the General’s office Attorney wit- letters contention that copies reports support or of FBI defendant’s of questioning ness Butler lied in above line responding to “work” or pertaining “employment.” support

Nor a fair in context defen- does of the entire record reading the prosecution dant’s Butler lied about or contention that witness as distin- had status suppressed evidence that Butler “informant”36 FBI. by the To being “employed” from for or guished “working” Michael Nash General Deputy Attorney the declaration of contrary, 1979,37 it a which had attached to statement dated December (5th 1979) person “A who defines “informant” as Dictionary 36 Black’sLaw ed. another, against suspects of the violation of prefers an whom informs or accusation confidentially infor penal who volunteers material person some statute. An undisclosed supply who persons does include mation law to officers and not violations officers, by police give information as only being who information after interviewed (P. investigation....” 701.) during witnesses course of “I, MICHAEL reads follows: Attorney General Nash Deputy of 37 Thedeclaration NASH, Attor Office of the California Attorney employed by the Deputy General am a General; ney by corpus of filed petition writ habeas currently response to a for preparing “I a am Pratt; attorneys for Elmer ‘Gerónimo’ 13, Attorney 1979, meeting at Office of the California I a “On attend December Julius by Butler a “factual the FBI summary” by dated prepared 9, 1979, November for N. Congressman Paul delivery McCloskey, Jr., his pursuant to be with the entire rec- inquiry appears consistent ord and FBI documents uncovered defense counsel and supplied (see C) this court also Appen. defendant’s contention. negates General Angeles. following located at Wilshire Boulevard in Los persons The Moore, present meeting were myself: at the Attorney addition to S. Clark Assistant Justice; Pounders, Department General with the California torney of Deputy William R. At- Justice; Kalustian, Department General with California of Richard P. Deputy Office; Attorney, Angeles Attorney’s Roger Cubbage, District District Los at- Justice; Adamski, torney from Department Tony agent the United States of an from Mazella, Investigation legal Federal Bureau and Chris counsel from the Feder- Investigation. al Bureau of subject meeting “The matter of the Elmer representatives ‘Gerónimo’ Pratt. from the FBI that the Attorney’s stated information first disclosed to District 12, Office on Department 1979. December The information had not been disclosed to the California 13, prior meeting of Justice on following December 1979. The infor- mation was by representatives disclosed from the Investigation: Federal Bureau consisting “1. A pages document of two herein attached to declaration. The n first page signed by summary authorizing consists of a statement Julius C. Butler the FBI to re- 11, 1979, page lease Congressman given 2 which is a factual dated November to be Jr., Pratt; McCloskey, pursuant regarding Paul N. to his inquiry Elmer us, which, recollection, “2. A document was shown to to the best my indicated that the (purportedly through wiretap) FBI received information that on or about 20, 1968, December Elmer hiding Pratt was in the Oakland area and he was that from Further, 18, 1968, Bobby someone. picked that on December Seale Kathleen Cleaver persons up airport; some at the which, recollection, “3. A my document was shown to us to the best of stated that a informant, FBI, longer confidential FBI who is an no informant for the was associated during 3, 1971, jail with Elmer while he Pratt was in his murder trial. On November there was a county jail. of a report visit Cleaver and Luke with Kathleen McKissack Pratt in McKissack, represented attorney, Luke Pratt in the ‘LA 13 Shootout.’ represented Mr. associated Cochran McKissack was with Johnnie who Pratt in his tri- al. The confidential informant became Cleaver’s On associate. November Kathleen 20, 1971, Cleaver, reported that on October Mrs. Mr. McKissack and Elmer Pratt concerning discussed contradictions various Pratt’s arrest the FBI in Texas. 30, 1972, On testify June Pratt indicated wanted that he witnesses to that Julius Butler , 20, 1972, grudge against had a July him. On the informant that on July advised Freeman, bodyguard, Kathleen Cleaver and a Roland met Johnnie Cochran. present meeting (Elmer brother) Also Gayle Pratt Charles Pratt’s An- drea Bell. All the trial to court for proceeding p.m. Following went which was set for 2:00 Cochran, Cleaver, Pratt, Mr. day, Mrs. Charles Bell and Mr. Mr. Free- man discussed Pratt’s They appeal prior Elmer case. discussed an conviction for possession present dangerous weapons. They arguments also discussed summation in the strategies case appeal group arid if he were convicted. That also visited jail. Pratt at how defense, they They Afterwards went to home of Charles Pratt. talked about testimony Kathleen testimony Cleaver’s tied in of a trial witness for the general Shirley Hewitt. There was also discussion of the trial. formally requested containing “We copies have of the documents this information from the FBI. penalty foregoing “I perjury declare under correct. true and Angeles, “Executed on December at Los California Michael Nash” “/s/ Gen- Deputy Attorney attached to sheet

The FBI “factual summary” 9, 1979, is as follows: dated November Nash’s declaration eral “11/9/79 1969, But- in on Julius January, “A substantive case file was opened Police the Los others, Angeles whom were arrested by ler and some of weapons numerous house where Party at a Black Panther Department, contact August, found. the initial explosives During leadership BPP his current expressed Butler dissatisfaction to an letter that he had provided that life and stated he feared for individual, unnamed, policy hold this as an insurance who would infor- contained him. advised this letter threats He against against He was in the chamber. gas mation would individuals put which BPP, regarding on other occasions contacted several subsequently court murders. Pratt or tennis but no information on supplied individual had the po- “In view of fact that the FBI thought informant, source file racial potential on productive tential being 1970. He contacted July, activities neighborhood opened An- for racial violence in Los concerning potential several occasions lack This was closed in because May, file geles. information gather regarding was not directed to productivity. He in that source potential BPP or Pratt and there is no information Elmer other than stated file or else of information anywhere receipt indicating above. FBI,

“Because with the Butler relationship probably of the casual that he never he was evaluated as an informant or suspected being fact, be an of the FBI. In he testified considered himself to informant Pratt’s He was court he was not an FBI informant trial. during paid never as an informant.” made,

The statement and dated on November signed Carl attached to General Nash’s decla- Deputy Attorney Julius Butler is as ration follows:

“Statement identities been apprised “I, having Butler, Carl Julius (FBI) John F. Keller Special Agents Investigation Federal Bureau and Richard A. Schussler and the nature of their as it con- inquiry cerns Elmer past contacts with my the FBI in to him regard Pratt and the Black Panther Party, make the hereby free and following vo- luntary statement:

“I hereby authorize the FBI to release statement, the attached pre- pared by the FBI and dated November to Congressman Paul N. Me Jr. for the purpose of his Closkey, into the inquiry matter in- volving Elmer Pratt.

“I have read this statement and concur with the FBI’s that I position informant, have never been an FBI I nor was ever aware that I was be- ing evaluated as a informant’ and ‘potential carried as such in an FBI file on me.

“Signed: Julius C. Butler /s/

Julius Carl Butler 11/14/79_ Date”

The statements foregoing corroborate the truthfulness of witness But- ler’s statement at the time of trial that he was not “working” Moreover, FBI. the information the FBI Butler supplied on several occasions as hereinbefore described does not make him an “in- certainly (See 36, ante', C, formant” within the accepted context. fn. legal Appen. 3.) p. fn. Of importance also is the fact that the FBI was merely (racial) Butler as a evaluating informant” “probationary and only after Butler had delivered the sealed Rice envelope Sergeant containing which, the letter when opened, pointed finger defendant Pratt as the “tennis court being murderer.” Nor did Butler consider himself an (See (snitch). “informant” Butler Also of no little testimony, infra.) sig- nificance is the uncontradicted statement in the declaration under oath of the Kalustian, Richard prosecuting that he had attorney, “no reason (See believe Julius Butler ever was an informant for any agency.” 33, ante.) fn.

We turn now to defendant’s contention that prosecution witness But- ler lied in respect status as an informant for the L.A.P.D. question to whether or not Butler was an informant for the L.A.P.D. was presented to the under direct jury and cross-examination of the following witnesses in the manner. following case on cross- During portion prosecution’s rebuttal examination the occurred between defense counsel following colloquy and Officer Du Rice: Wayne Butler, did about the com-

“Q. Was Julio he information give you from time to time? munity that,

“A. I don’t know in what context mean sir. you “Q. Didn’t he people inform on from time to time? No, sir,

“A. he didn’t. crimes, Didn’t “Q. he tell about you any problems on? going No, “A. We sir. discussed some of the problems but he general, didn’t come to me as an informant.

“Q. He didn’t act as an informant for you?

“A. Not the time of our during relationship prior to the time of my letter, getting that sir. Well, I

“Q. am not sure I Did understand. he act as an informant after he gave you letter?

“A. I no, would have It is hard to answer that or sir. clarify. yes Because of a lot I will have to things, qualify answer. my

“Q. Let me put it this Did he ever act as a way: police informant for you? Yes, did,

“A. sir. “Q. Did he do that before 10th after August August or both before and after? I

“A. would a week or so and I never say approximately prior, saw him much after he me the letter. very gave

“Q. But for a week 1969 he did prior infor- August give you mation as a police informer? Yes,

“A. I think a fact.

“Q. Was he for that paid information? No,

“A. sir.” Also on defense rebuttal occurred between following colloquy counsel and witness Butler: Now, had, course,

“Q. him information on you given groups prior not, time, to that had 1969? you prior August “A. Information? Yes.

“Q. You’d been informant for Rice? Sgt.

“A. No.

“Q. You were never an informant for Rice? Sgt. informant,

“A. Not an no. before, fact, You told us have never been an in- “Q. you formant; is that right? “No,

“A. I haven’t.” redirect, prosecutor: was had with the On the following colloquy By You have indicated that said had you you “Q. Mr. Kalustian: never been an informant for Rice? Sgt.

“A. That’s correct. Rice information? Did ever

“Q. supply Sgt. you Party? about the “A. You mean Well, information. kind of

“Q. “A. Rice was a confidante of mine. But was not the sense Sgt. sir, relations, police relationship. a citizen and policeman public never did use the words been an “Q. Why you say, you’d informant? Well,

“A. the connotation ‘informant’ means a snitch and I have never been in the world a snitch.” recross-examination, and answers

Finally, following questions occurred: Now,

“Q. to this information that regard not you may may Rice, have furnished said that he Sgt. you was a confider or confid- you him. ed in Yes,

“A. sometimes personal, sometimes relevant to business. party Rice Sgt. was a relations officer community was a liaison be- Panthers, the US organization, and all the other tween organizations, black so-called in the organizations community.

“Q. Now when confided in you him—first of all when was the first time ever you confided in him. level,

“A. On what counsel? Well,

“Q. on the business party level? “A. I would level, on the say business party would date back to ’68, November of somewhere along there. words, In

“Q. other knew Du you Rice Wayne before became you Panther, Black didn’t you?

“A. That’s correct.

“Q. You had been police officers about the same time? Yes,

“A. that’s correct. “Q. So you him gave some information in November of ’68 and would you it was— say

“A. I did not I him information in November of ’68. gave say Well, what did him? “Q. you give office,

“A. With he came to the 3A he and permission, Bunchy’s downtown, complaints Greene from to discuss the Lt.—Sgt. party’s about harrassment from Wilshire station officers. alleged

“Q. You said harrassment? alleged

“A. Yes.

“Q. These weren’t true. I wasn’t were true or not. they not whether saying

“A. I am [II] members and Sgt. a liaison between party instituting—only acting officer. relations Rice and the communication Did ever him “Q. you information that didn’t clear give you Carter, or some other Black Panther member through Bunchy Party prior to August 19—

“A. Of what nature because when are down infor- you narrowing that, mation like conversations would when my one but falsify thing, nature, counsel, what if you say what nature then I will an- you specify, swer counsel. you, Did

“Q. ever inform on you anybody?

“A. No. did that?

“Q. You never

“A. No.”

The line of foregoing It questioning does not in self-explanatory. our view establish aby preponderance of the evidence that Butler per- jured himself. Nor does additional any documentation furnished this (See court establish Code, that Butler himself. perjured Pen. §§ 118, 1103a.) At best the above questions and answers indicate that But- ler in his own mind the word equated “informer” to a “snitch” which he unaware that he was and was evidently did consider himself to be38 not the FBI. While Butler informant” by evaluated as a being “potential an “informant” law FBI he was not agents, information to supplied being was after supplied the information lexicon because enforcement FBI the course of an investigation. FBI or during interviewed agents label refers to reli- (See 36, ante.) an “informant” fn. In FBI vernacular information furnishing and obtaining able persons actively engaged The FBI, and usually paid. who are numbers assigned symbol “informant,” did not him a assign sym- FBI did not consider Butler an (See C, 3.) fn. Appen. p. bol number or him. pay listed previously the various events time occurrence of Finally, Butler was neither evidence that Julius in itself indirect supplies strong sense of the in the law enforcement an FBI nor L.A.P.D. informant 18, 1968. on December The murder of Caroline Olsen occurred word. in that suspect Pratt as a did not focus on defendant investigation fi- 20, 1970, Butler letter was the Julius day murder until October letter Butler handed the over 14 months after which was nally opened until murder. It was not Rice 22 months after the and over Sergeant were shown to Kenneth Olsen then that the of Pratt photographs traced, Reed, the .45 caliber automatic Barbara the defendant’s car Jan- weapons with the BPP arsenal of pistol, which was seized along expert. checked a ballistics booked into evidence and uary Pratt in his peti- In view of the we conclude that defendant foregoing, met criteria or test for relief required tion before this court has not Cal.App.3d as discussed in In re previously Wright, supra, Swain, He has not established aby prepon- In re 34 Cal.2d 300. supra, to entitle him to requisite derance of the evidence of the elements any (1) was in testimony relief. he has not shown that Specifically, perjured trial; that if witness (2) fact adduced he has not demonstrated state; (3) Butler did lie that it was known to a representative have af- if was of such significance perjured testimony, any, or innocence. respect fected the outcome of the trial to guilt in this event, and circumstances In all the evidence considering case, the extent jury that failure to disclose to we further conclude had told him on De specifically stated that defendant Pratt 38 The fact that Butler later made (Pratt) going out on a “mission” and that he cember (er)” considered as an indicating “tennis court murder is not statements that he was the placed Butler this within the context of this case. “informer” in the classical sense or my death” as an “insurance opened only “upon be envelope information in a sealed to policy” personal a matter of survival. as hereinbefore de with witness Butler as nature of the FBI contacts doubt. a reasonable and harmless beyond scribed was nonprejudicial 399.) In disclose what 14 Cal. 3d fact to Ruthford, supra, (People v. discussed would FBI as hereinbefore witness Butler told the contacts with and corrobora is consistent not be That information exculpatory. therefore, would, have been and it tive Butler’s court testimony detrimental to Pratt’s defense. a new trial be asserts that he is entitled to

Defendant Pratt also lied, but when he not at the trial cause Officer James F. Naveau to suppress to section 1538.5 pursuant testified at the motion pretrial from the (the automatic seized pistol) .45 caliber weapon death ' 17, on January West Boulevard Century residence at 806 Huggins Carter and John 1969, of Alprentice “Bunchy” following killing noted, Naveau, as previously campus. on the UCLA Officer Huggins him, following killings, Brown had told testified that a Joe to the shit pad get Huggins’] Panthers “had to John’s split go [John and a lot of L.A.P.D. people and a lot US [weapons explosives] blown up night.” pigs going get 1979, 12, The defendant relies an affidavit dated November upon who is individual the name of Brown by currently lawyer Joe Tennessee, that he the information attrib- Memphis, provided denying the section 1538.5 We hearing. uted to him Officer Naveau defendant to a new trial on entitling as summarily reject argument the basis of this discovered evidence. newly

First, of the evidence that the preponderance there is no showing by is the Joe Brown who filed the above affidavit some 10 later Joe years received the Brown or the same individual from whom Officer Naveau 807; In re (See In re Wright, supra, Cal.App.3d information. Imbler (1963) 6].) 387 P.2d Cal.Rptr. 60 Cal.2d 560 [35 Naveau to the communicated Officer Secondly, the information and true because when accurate completely L.A.P.D. apparently Naveau’s residence Officer following the officers went to the Huggins’ carrying in and out of the house moving saw individuals report, they indicated was going as Officer Naveau just and ammunition weapons Thus, him. even happen reported assuming contrary in In re Terry (1971) 4 limitations Court imposed by Supreme can review by 484 P.2d this court Cal.Rptr. 1375], Cal.3d 911 [95

877 defendant ruling, error in the suppression habeas the claimed corpus Naveau’s is false. testimony has failed to establish that Officer Terry, pe that the Finally, again ignoring appears the limitation in the true matter present alleged titioner had opportunity (See 218, In re Waltreus (1965) 62 Cal.2d Cal. trial court. [42 In re Kirschke (1975) 53 Cal.App.3d 397 P.2d Rptr. 1001]; Here, Brown from whom defen 680].) 408-409 the Joe Cal.Rptr. [125 and subject dant obtained an affidavit was available UCLA recently to a defense the entire time of the trial and at his subpoena during Moreover, motion for a new in defendant’s where he un appeal trial. contended that the search of the residence was successfully Huggins’ (see B), search and he did not raise issue illegal Appen. seizure about the of Officer Naveau’s falsity testimony.

We next turn to defendant Pratt’s contention that discov newly ered evidence shows that the FBI concealed and withheld surveillance evidence which would have corroborated his alibi defense that he (Pratt) was in the 18, 1968, Area on Bay of December evening when Caroline Olsen was murdered which entitles him to a new trial.

In support this contention the two FBI re- only points defendant ports gleaned from the thousands of documents furnished recently the FBI to the General and Attorney defense counsel. documents, discussed,

One of these revealed that as of previously December “an L.A. Brother known as ‘Gerónimo’ arrived area; the Oakland that he was from someone and that a hiding Nation- cool, al BPP representative told him ‘that’s’ where are.” stay you The other document as noted revealed that on previously December 18, 1968, Bobby Seale was going pick up some people go residence of a Dr. Shapiro at 7:30 p.m.

Neither of the above documents warrant relief on the of new- ground discovered in combination it cannot be ly evidence because separately said that undermine the entire structure of the case they “completely based,” upon which the uner- prosecution “point are “conclusive” Weber, In In re (See 703; re supra, ringly innocence.” Cal.3d Wright, 788.) supra, Cal.App.3d

878 the name of John was indexed under

The first mentioned document Jr., which indicates BPP leader from Los Angeles, Jerome Huggins, as of that of the “Gerónimo” that the FBI was unaware of identity he was under surveillance by Pratt’s contention that time repudiating in leadership when he assumed a position the FBI prior April that “As in that indicates the BPP. The document is also significant 20, 1968, is in December .. arrived Oakland.” Gerónimo 12/20/68. testified a Olsen and as Butler the murder of Caroline two after days It is December 1968. day, Pratt the following after he talked to day from Los San Angeles that an airplane flight common knowledge Moreover, the notation that one hour. Francisco area takes about only someone, from December hiding Pratt was still in town on for looking Monica officers police Los and Santa possibly Angeles murderer, than innocence. guilt Caroline Olsen’s is more consistent defendant is, therefore, which supports There in this document nothing December 1968. Pratt’s alibi that he was in Oakland on indexed un- There is in the second mentioned document nothing also to indicate who was to be going der the name of Kathleen Cleaver fact, testimony December 1968. In defendant Pratt’s picked up on airplane went to San Francisco sever- at the time of trial was that he BPP headquarters by from the to the airport al earlier and went days while he was in the Area he Bay taxi cab. Defense was that testimony was driven to the BPP functions Wilcots. by Jacqueline

As the circumstantial evidence pre noted addition to previously ownership sented to defendant Pratt’s prosecution respect witness weapon, car and access to the murder Barbara getaway Reed identified him in the area of the tennis court positively prior identified the murder and victim Kenneth Olsen surviving positively The defendant’s alibi defense consisted him as one of the two gunmen. Area at the time attending of his that he was in testimony Bay function; three BPP BPP corroboration was principal testimony (sisters) saw him in the area at that female members who said they was in conflict and the sharp time. The evidence presented jury It issue found the defendant. jury resolving credibility against “the with that at the presented not sufficient that new evidence conflicts trial and would have a more difficult for the trier of presented queston (In 788, 802.) Wright, re fact.” supra, Cal.App.3d For the we conclude that habeas relief on corpus reasons foregoing evidence is not warranted. discovered ground newly Pratt’s Request Evidentiary Hearing Defendant Defendant Pratt requests that if a new trial is not granted under the current state of the record an evidentiary be held in a hearing Califor- nia state court directed at the FBI to uncover evidence that the FBI “concealed and withheld surveillance corroborative, evidence in part, of Petitioner’s alibi defense.” such an By evidentiary hearing (discovery) he ostensibly seeks to uncover corroborative evidence to his alibi defense which he argues bemay available by reason of the FBI surveillance of the BPP and the (as defendant himself defendant) “target” through a wiretap Los BPP Angeles headquarters and FBI and in- agents in the San formants Francisco-Oakland area 18, 1968, on December night Caroline Olsen was murdered in Santa Monica. He also ostensi- bly seeks to uncover (the FBI evidence FBI) conveyed L.A.P.D. information it obtained concerning second suspect (Ty- rone) and to establish that Julius Butler was an “informant” prior to and after the times hereinbefore discussed.

Here, defendant Pratt by seeking evidentiary hearing requesting this court to refer the matter to the trial court in order to utilize that court for purposes of conducting postconviction discovery to ob- seeking tain the names of FBI informants in the Area Bay allegedly an effort to show that the informants would support his alibi defense that he (Pratt) was in the San Francisco-Oakland area on the evening De- cember when Caroline Olsen was murdered on the tennis court in Santa Monica.

A defendant’s motion in a criminal case for pretrial pre case, conviction unlike a civil is addressed discovery, to the sound solely court, discretion of the trial which has inherent power to order such dis in the covery interest of to insure a defendant his justice to a fair right trial and an intelligent defense in of all relevant and light reasonably accessible (1978) information. v. Court 20 (People Municipal (Runyan) 609, Cal.3d 523 574 P.2d Pitchess v. Cal.Rptr. 425]; Superior [143 (1974) Court 11 Cal.3d 531 522 P.2d Cal.Rptr. 305]; Hill v. [113 (1974) Superior Court 10 Cal.3d 812 518 P.2d Cal.Rptr. [112 1353, 95 A.L.R.3d 820].) requisite showing for discovery the pretrial and of a criminal case satisfied preconviction phase may be by general which establish some cause for other allegations discovery than “‘“a mere desire for the benefit all information which has been (Robinson obtained People their of the crime.”’” investigation 880 (1978) Cal.Rptr. 973 Cal.App.3d

v. Court Superior [143 328].) of criminal postconviction proceedings, reviewing

In the stage refer a for an power courts the inherent matter undoubtedly possess demand, requi but the hearing justice when interests evidentiary site must be a referral equivalent necessary at least showing (1979) v. a claim (People Pope counsel. following incompetency In event is an 859].) 590 P.2d no Cal.Rptr. Cal.3d [152 and speculation warranted when based on sheer hearing evidentiary place some evidence out there some pure may that there be conjecture an may in the hands of authorities that corroborate allegedly federal relief, In in order defendant “alibi” defense. the instant case to justify to in “a amounting Pratt be able to the record point something must to v. (People Stephen not a matter.” reality demonstrable and speculative P.2d (1974) 820]; People son 10 517 v. Cal.Rptr. Cal.3d 652 [111 412.) mere he has failed to do. The fact 23 This Pope, Cal.3d supra, Cointelpro and 1971 is FBI’s between 1967 operational the an Nor is evidentiary hearing. insufficient to relief by way justify Report there mention in the Church Committee suggestion Cointelpro the the in included a “framing” techniques employed a criminal defendant or members of violent militant target groups offense. Parker,

Furthermore, exhaus- we Kathleen after an agree Judge us, that a referral for an tive review of the made available record for either the defen- purpose would serve no useful hearing evidentiary dant or the court. courts, courts, forum for appropriate the provide

Federal not state that de- have no reason to believe additional of FBI files. We discovery in his be entitled to two cannot conduct any discovery may fendant the FOI federal courts: one under federal actions now pending a in San rights Act in and the other civil action Washington, D.C. Francisco.

Moreover, state duces tecum issued from California subpoena name(s) of FBI informants FBI to obtain the court directed 18 BPP Bay in the in the Area December planted It futile is fundamental would be a act for defendant. undoubtedly or make orders compelling that courts do not futile acts engage contempt which it enforce with a order. of evidence cannot production

881 (1980) In 121 Cal.Rptr. v. Cowans People Cal.App.3d [168 defendant, a of the Guerrilla 498], family, charged member Black murder, counts counts jury and convicted trial of two two following of assault with intent to commit murder and two counts of On robbery. contentions, Cowans, asserted appeal defendant other amongst trial court claim of erred relative to FBI’s refusal privilege answer their with other law en- regarding contacts relationships forcement to the case. This agencies relating court rejecting argument pointed of conviction out that the affirming judgment law is well settled that a trial court does not have order a jurisdiction federal agent allowed him testify beyond scope by the United States such order Attorney General since General of Attorney the United States is and has force of valid federal law. v. (People (1963) Parham 60 Cal.2d Cal.Rptr. 1001].) P.2d [33 We further out that the law pointed well settled that a trial equally court of this state impose cannot sanctions on a federal agent for assert- ing since the privilege would be privilege absolute and not (Saulter conditional. (1977) 231, v. Municipal Court 75 Cal.App.3d 245 Cal.Rptr. 266].) [142

The of such a course of is futility action made apparent People v. Parham, 60 378. supra, Cal.2d In Parham a defendant convicted of three counts first appealed degree robbery on the that he grounds was denied fair trial because he was denied right the to the inspect signed statements of several witnesses FBI obtained by agents.

The Supreme Court in Parham in affirming of convic judgment tion held that order of the General of the United Attorney States to an FBI not agent produce investigative file valid and has the “[i]s (United force of federal law. States ex v. rel.Touhy Ragen, 340 U.S. Industries, 462 Inc., [...]; Jackson v. 629.) Allen 250 F.2d The trial court was therefore bound the executive order and refused properly to hold (See Agent Buchanan Boske v. contempt. 177 Comingore, U.S. 459 [...]; Appeal Com., United States & Securities Exchange 501, 516-520; Sackett, 226 F.2d 922; Ex parte 74 F.2d In re Valecia Co., 310; Thurman, 813; Condensed Milk F. 240 v. Stegall 175 F. In re Weeks, 729; Huttman, 699; 82 F. In re 70 F. Hubbard v. Southern Ry. Co., Parham, 244.)” 179 F.Supp. (People supra, v. 60 at Cal.2d 381.) p.

The Parham court rejected also the defendant’s contention that be- cause the signed statements were not he was produced deprived of fair

882 stat- witnesses’ testimony, strike the denial of his motion to trial follow, however, use the witnesses’ does not ing “[I]t deprived were unavailable statements prior their testimony though even the state- not withhold The did prosecution a fair trial. defendant of them from ments, to obtain every but made effort contrary failed. those efforts because The cannot be penalized F.B.I. prosecution officials, a if, fault state no through The is not prosecution penalized Wade, v. trial. at (People witness for the defense is unavailable material Williams, Cal.App.2d v. 118 Cal. 673 [...]; People Collins, It does [...].) 195 Cal. see v. [...]; 626-627 People any improp- because of were unavailable not that the statements appear compulsion under no The police er state officials. activity by Tuthill, 31 (See v. Cal.2d People from the witnesses. take statements conspired police to show nothing 97-98 There [...].) of the statements. deprive defendant agents with federal the witnesses use testimony entitled to prosecution therefore v. unavailable.” (People their statements were even though signed Parham, 382.) p. Cal.2d supra, case in the instant attorney

There is that the prosecuting no showing the FBI conspired agents withheld evidence or that L.A.P.D. be which he may legally defendant Pratt of evidence to deprive entitled.

Conclusion a of more Report study “is based on staff The Church Committee 20,000 documents, of Bureau depositions many than of Bureau pages Cointelpro in interviews of several involved agents programs, (P. 3.) in the is listed as a technique Nowhere targets.” report an in order to “neutralize” target a criminal “framing” offense of of does that state report suggest individual a threat. Nor perceived Cointelpro its techniques, except were involved governments information, of which is desirable highly for mutual dissemination does all of Nor government. between law enforcement levels agencies , documents court independent supplied our FBI analysis court support in with a of the entire record date review conjunction Cointelpro agents employed by that such a finding technique defendant Pratt’s conviction. falsely procure Pratt’s contention we conclude defendant Accordingly, Cointelpro law enforcement au- that FBI’s with local agents conspired thorities and to “frame” him prosecuting attorney by illegally manufacturing, manipulating evidence in order to in withholding sure his conviction is based speculation on rank and sheer conjecture which does not justify the relief Nor does the mere sought. existence of Cointelpro and its activities as it related BPP or to defendant Pratt and of itself in constitute way In exculpatory evidence. short, defendant Pratt has not the facts proven on which he relies in Lawler, support (In claim relief. re supra, Cal. 3d 195.)

Uncontradicted evidence of ballistics Wolfer shows that expert trial a .45 caliber seized with the arse- pistol police, along automatic nal of Black Panther at 806 West Boulevard on weapons, Century 17, 1969, additional January effort bloodshed prevent following John on the UCLA assassination of Carter and Bunchy Huggins campus, was the used the cold blooded shooting specific weapon Caroline Santa December Olsen on the tennis court in Monica on 1968. trial evidence further that the car

Undisputed get shows used away from the “tennis murder” court scene on December was the convertible, 1967 Pontiac top body, GTO white over red owned and into brought California Pratt by defendant on September bearing North Carolina license with a white plate background. The evidence only consisted the claim other exculpatory defense’s Black Panthers access to had the car39 The fact that the murder was found in the weapon Black Panther ar- (to senal of access)40 which weapons defendant Pratt had and for purpose as true defense analysis accepting that Black Pan- testimony thers, other Pratt, than defendant had access to the car the getaway could jury have concluded beyond a reasonable doubt that “A” Black Panther murdered Caroline Olsen. 39 We getaway note that car owned Pratt was accessible to other Black Pan Angeles frequented thers who Black and headquarters the Panthers Los since the relatively surely were group Panthers a small closeknit defendant knew or Pratt could ascertained evening have the names of the two Black who used his car on the Panthers the Bay

of murder of Caroline Olsen on in fact he was in the December if any during by Area. The names of such not disclosed trial individuals were the the de By failing possession fense. to the names Black Panthers had disclose of those who of existed, essence, murder, Pratt, night his car on the then of the such in “framed” if himself. “belonged weaponry party, 40 Allof the the BPP’s arsonel none to the indi in D, (See 933.) p. Appen. vidual member.” of defendant Pratt as the murder identification in-court positive (see 7,6, ante) witness Barbara fns. and

er victim Kenneth Olsen 9, ante)41 former (see 8, in with the of testimony conjunction Reed fns. (Julio) that defendant Pratt Butler Black Panther member Julius C. (Pratt) the “tennis court he had committed had admitted to him that evidence overwhelming constituted murder” while out on “mission”42 a reasonable concluding beyond the jury which would amply justify conviction, to (defined “An abiding in instructions as jury doubt that defendant Pratt was charge”) of the truth of the moral certainty, Caro and who murdered person fact “THE” Black Panther specific in line Olsen. the prosecution contradicted witnesses43 the defense alibi

Although Butler, ver- Olsen, jury Reed Julius Kenneth Barbara witnesses testimony a prominent special significance 41 Of in Barbara Reed’s identification consisting or round-shaped of a small scar indentation feature on defendant Pratt’s face practicality nose. bridge his of his As matter on lower forehead above any highly improbable for other other extremely coincidental and probability it would be light complexioned male Black Panther any chapter or in the Southern California any place identically at greater Angeles Los or all have male in the area black position on his face. shaped and sized scar in the same naming court testimony defendant Pratt as the “tennis Butler’s 42 Wenote that Julius pertaining to his and circumstantial evidence the direct murderer” corroborated weapon the murder (Pratt’s) eyewitnesses, the identification of by two identification getaway belonging car to Pratt. The had access and the identification which he identified, while the body could not be slug from Caroline Olsen’s fact that a removed identified, testimony with and corroborates Butler’s casings be is consistent shell could of the automatic. he had discarded the barrel that Pratt told him equivocal. as somewhat main could be characterized alibi evidence 43 Defense night December Hilliard’s house on he was at David Defendant Pratt “thinks” 18, she saw defendant Shirley Hewitt “thinks” and BPP member 1968. Defense witness meeting evening of on the De a central committee at Hilliard’s house at Pratt David David stated she drove him to Jacqueline Wilcots Defense witness cember 1968. Cleaver tes Panther Kathleen 1968. Black house after dark December Hilliard’s Shapiro’s and at David Hilliard’s house seeing at Dr. Pratt tified that she remembered (The report dated Dec. question. FBI meetings during the frame time at Seale, going Shapiro’s Dr. were Cleaver and others Bobby Kathleen indicates that 18, 1968.) p.m. on house at 7:30 Dec. trial, witnesses, affidavits at time from defense alibi Conspicuously absent trial, Pratt and testimony at whose homes defendant of the hosts subsequent to occurred, namely, “tennis court murder” say was the time the witnesses at defense testimony is the Shapiro. Also absent or and Mrs. Hilliard Dr. Mr. Mrs. David night meetings on at allegedly present were those persons numerous other who Caroline Olsen. the murder of fully cooperative may been may or not have though these witnesses Even some of 28, ante), (see there January 1971 fn. the BPP in expulsion from with Pratt since testimony oath at trial. obtain their under legal available to were mechanisms Hilliards, others Shapiros testimony by the appear sworn It would that such the time of trial and meetings more accessible defendant would have been at the now and more Bay who than FBI informants position of his persuasive witnesses and believed the prosecution the jury demonstrates that diet course, are, the jury’s We of bound by witnesses. the defense disbelieved (1978) 87 Cal.App.3d v. credibility. (People Campbell of determination is the fact that importance 175].) Again, Cal.Rptr. 678 [151 (b) the (a) weapon, get- the murder pertaining evidence prosecution Olsen and car, of Kenneth (c) testimony identification positive away the Ollie Reed, Taylor victim Ollie (d) Taylor that of Barbara either testimony Julius Butler’s all corroborated essentially incident or directly indirectly,44 The record discloses that defendant Pratt was afforded his full day

court. His trial jury was presided over by Judge Kathleen Parker, one of the fairest and most competent and experienced trial judges in the state. He was represented by competent and experienced trial counsel, who during the pretrial phase moved the court to discharge petit jury panel, to suppress the murder weapon evidence, as and to suppress as evidence the in-court identification of Reed, Barbara all of which were denied. During the course of trial, the month-long defense counsel protected defendant’s constitutional rights and vigorously cross-exam- ined prosecution witnesses and had wide latitude in presenting the defense his including “alibi” defense.

Pratt’s conviction a unanimous of 12 jurors vote unanimously affirmed by the court and his appellate for a petition hearing unanimously denied the state Court. A trial Supreme on his judge motion for a new trial and on review a total have justices upheld the legality of his conviction.

A defendant is trial, entitled to a only fair not an absolutely perfect trial. Defendant Pratt has failed to demonstrate that either the FBI’s Cointelpro or any California state or agency separately acting con- identity Area at time whose defendant seeks to have disclosed. In view of the fore- going reasonably seeking could be concluded that defendant disclosure of identity (knowing FBI informants that the disclosure of the identities of the in- forthcoming) legal will not purpose gaining formants be for the some technical advantage for failure to purpose separate disclose or for some other and distinct from obtaining guilt evidence truth his innocence. argues always 44 Defensecounsel that defendant has Pratt maintained his innocence remorse, guilty, guilt showing he by admitting and that if was in fact his sen be prisons tence could shortened. The other side of coin is that are full of maintaining convicted felons their innocence. guilt, Once a convicted felon admits his only large portion not loses prison stature with but out inmates also loses sympathetic (see ante) support groups side of those individuals and fns. who will through continue to seek his release the courts. 886 of law. process him due or denied has him of a fait trial deprived

cert cor- for habeas petition on defendant’s furnished this court The record convicted. unjustly tried unfairly does not show that he pus

Disposition writ of ha- petition cause is and discharged The order to show is corpus beas denied.45 defendant Pratt we are not unaware of two actions completeness, 45 Forthe sake of courts, Washington, Act in D.C. under FOI one of which is pending has in federal pertaining COINTELPRO and the defendant seeking of FBI files to further disclosure rights in States District prison in civil suit the United The other action is a herein. August to subpoenaed from 1968 have been in Francisco in which FBI files Court August San pertaining to Pratt. 1972 holdings and documenta herein are based on information Our conclusions and counsel, Attorney General’s office by the California supplied this court defense tion be uncov filing opinion. of Should additional evidence and the FBI as of the date legally support adequately and in the above sources which ered defendant’s of the future from course, not, contentions, filing preclude of herein do our determinations Swain, (In 300.) re 34 petition seeking supra, appropriate a new relief. Cal.2d dissenting Pratt should Dissenting Opinion: opinion The concludes that defendant Re hearing” process not afforded “due of law” granted “evidentiary be in that his an because was clearly fundamentally is not in 1972 was fair. Such a conclusion trial not reading a of the record and mis- supported by predicated the record and is on selective controlling law. misapplication construction and stated, opportunity by an to be heard an process,” simply requires “Due notice and general in-depth impartial applicable rules of law. The and exhaustive tribunal under analysis conjunction application in of settled rules of law the total record govern original proceedings majority opinion in this corpus habeas as discussed which in “due Pratt’s conviction was full accordance with amply demonstrates that defendant showing process” has a sufficient requirements simply and that he failed make justify any relief whatsoever.

n arguments dissenting opinion bought in his has hook-Iine-and-sinker defendant’s fog. analyzed as handful of petition which when dissected and have little substance a solely based concept that a fair trial was denied defendant Reliance on some nebulous admittedly allegations conjectural unproven and and Supreme wholly speculative on which are only logic ignores Court in In re not Imbler, defies but the standards set “governmental supra, allegations improprieties” Again, 554. mere Cal.2d pure speculation supporting support on facts are insufficient based surmise sans Lawler, (See 190.) granting supra, In Cal.3d of relief. re petition corpus original proceeding an before this court Defendant’s for habeas primarily “governmental at the federal level the FBI. In- improprieties” directed dissenting hearing at end quiry evidentiary at an into the nine items listed burning up nothing “fishing expedition” more state waters opinion would be than into public De- resulting unnecessary expenditure time in an funds. additional court by way FOI Act case and a already'has fendant two “lines” into federal waters of an D.C., rights Washington, pre- and San As civil viously action federal courts Francisco. “fishing quantity expeditions” if uncover evidence of sufficient noted those contentions, legally precluded he is not from quality adequately support Swain, (In 300.) seeking filing supra, new re 34 Cal.2d petition appropriate relief. evidentiary hearing pertain to inquiry items 2 and 3 listed for The dissent's argument in camp during The dissent’s relation FBI informants in the defense the trial. J., Lillie, concurred. P. Acting dissent from the of

DUNN, J.* but respectfully vigorously judgment In the essential issue they raised my colleagues. misperceive by my_view Court, unintelligible. Municipal v. is We not re- supra, to Barber Cal.3d need major distinguishing the of of peat body here total six factors and reasons listed in the demonstrating majority opinion clearly inapplicable this to the that Barber is instant Barber, hearing response case. In the we that a dissent’s reliance on add such would questions presently be since would a useless be held to answer known answer (as dispute distinguished and a cal law enforcement is known result. There no that FBI informants from lo- informants) camp were in doubt the defense and no that the FBI would protect refuse to disclose order the their identities in FBI informants’ lives. Moreover, remedy per underlying charges. Barber's sole of is a se dismissal the This in way evidentiary hearing no authorizes a carte blanche on matters unrelated to the issue being of informants in the counsel California can camp privy defense to discussions between defendant and concerning strategy explain defense trial or tactics. Nor the dissent does how constitutionally apply agency ruling to a federal its in Barber which ad- mittedly at Supreme is odds with the United States Court’s decision in v. Weatherford Bursey, supra, Again, 429 U.S. 545. critical here is the fact that while the FBI infor- may strategies mants have had access to defense the information obtained was of such general a defense; nature as to be no prosecution of aid the and was not detrimental to the any event it not prosecuting attorney was transmitted to the local for use during the trial. therefore, 43, ante, It appear, would as only indicated in purpose footnote that the seeking to have a California court order the FBI to disclose the names of its informants a by tactical maneuver Pratt’s attempt counsel to to obliterate the distinction be- tween federal and state persuade informants and to some court new trial to blaze a trial by dismissing underlying charge the against gain murder Pratt and thus his release prison irrespective from jury of his conviction of the “tennis court murder.” The dissent’s pertains prosecution (Julio) item 4 witness Julius Butler which is great discussed in detail in the of body majority opinion this and needs no further am- that, noted, plification except (snitch) as Butler did not consider himself an informant Sergeant Rice testified that Butler furnished information to the L.A.P.D. More- over, assuming, arguendo, status, respect that Butler did lie in to his informant the case People of Ruthford, v. supra, 14 Cal.3d relied on in the dissent an appeal was distinguished case as stand for arising from a petition corpus, case out of a for habeas it does not Furthermore, proposition testimony false is reversible error. if on appeal a defendant materiality must establish the suppressed substantial evi- dence, here, which was not established a certainly lesser standard applied should not be corpus postconviction to how Butler’s habeas proceeding. dissenting opinion Nor does explain of (if denial the fact he an one) FBI was informant relate to Butler’s testifying truthfully him, interest in falsely or toas Pratt’s admissions to truth of which prosecution other witnesses. corroborated^ poses dissent’s item 5 question: petitioner “Was subject focused on for coursé, ‘neutralization’ to trial in prior 1972?” Of he was. COINTELPRO question There is no subject that Pratt became the of CoiNTELPRO’sefforts to “neu assumption tralize” him after his a leadership position of April in the LA BPP in 1969. However, whatsoever, showing there is no either in the Church Report Committee court, before this counterintelligence that CoiNTELPRO’s techniques measures and “neutralization,” the use of leaflets fake letters which employed deny were “to uni of ty action in effort by splitting of the LA BPP” turning the BPP and the leaders against technique each other included a “framing” Pratt the “tennis mur court Council. * Assigned by the Judicial Chairperson presented which was evidence not the Whether or

this petition. is- is not the fundamental guilt defendant’s unerringly trial points Report states that all COINTELPRO activities the Church Committee der.” In fact ¡971* year trial in Nor April over Pratt’s 1972. officially terminated before object fact Pratt was how the establish does the dissent otherwise COINTEL opinion all majority was at relevant to “tennis body described in PRO he was convicted. of which court murder” agencies at levels knowledge various law enforcement common that item it is As to federal) along about pass information county, and share or government (city, state of procedure only not conforms a activity to each other. Such criminal specific crimes and respects highly is desirable in but completely proper all long accepted practice and is to Here, showing by defense activity. there no against rampant criminal in the war disposal to which any its supply to information at prosecution failed counsel that the legally may have been entitled. the defense addition, although purpose upon it is for somewhat unclear what the dissent relies In Mejia (1976) Cal.App.3d Cal.Rptr. 192], People v. such reliance is mis- [129 prosecution the placed showing separately as there is no FBI or the or in concert deported, produce any Appeal Mejia The hid failed to material witnesses. Court of in 581) (57 government, Cal.App.3d p. unilaterally “If the federal at stated: and without authorities, knowledge deports the aid of who and state aliens later turn out to be ma- proceedings, urged by People witnesses in state court criminal the terial might distinction the presented question be That is the case here. There no well valid. not can be but' partially responsible Velasquez that state action initiated and was and Arce became unavailable as witnesses.... least for the fact ” these properly a not before this court in by 7 refers to matter The dissent its item intelligence report from L.A.P.D. apparently to an the original proceedings. It refers 28, 1971, request. at the defense This document had been sealed dated March was viewed in camera which August portion 1980. The by panel on its own motion this suspect the court evidently pertains to to the second in “tennis the refers which murder” dissent by to “Tyrone” who was introduced Butler (presumably person the named Judge report supplied was evening robbery-murder). This preceding on the the Pratt previous purposes pe- the by Pratt’s counsel for of defendant’s Kathleen Parker defense Presumably public exposure the contents the corpus. to avoid of tition for habeas report innocence, defense coun- with Pratt’s claimed which shows conduct inconsistent Magistrate parte order from Federal protective sel obtained an ex Stuart Hanlon Judge inspection by releasing the for an in camera Frederick J. Woelflen document court be request Magistrate the Woelflen only. Parker The order contained any releasing prosecution persons.” or to other said document to the contacted “before This court, person the involved in the Santa the reference to second view of dissent’s knowledge, requested had some shooting to which the FBI and the L.A.P.D. Monica pro- the permission Magistrate Woelflen to disclose the contents of telephonically of Magistrate granted by it would have no request This was Woelflen as tected document. effect on pending the case. federal intelligence dated contains a brief report The above to March referred “(source deleted) (deleted), un- a named last name advised that brother statement known, robbery the and murder on the Santa Monica tennis assisted Elmer Pratt in in a suspect had been arrested stolen Cadil- court.” source recalled that second dismissed, suspect hung and lac were mentioned the area in which the out but cases Report * TheChurch Committee states that “all COINTELPROs officially termi April requested nated on 1971.” The Committee that the FBI provide it list with a “COINTELPRO-type" any April of actions since 1971. The Bureau located and fur posttermination two of COINTELPRO-type nished the Committee instances operations. contact One instance involved FBI with the editor of a newspaper Southern to ar- sue, be because in trial if is throttled there can an effective defense be- no conclusion other than of immediate question one The basic guilt. “ shooting, Pratt indicted girl a but ends the statement: When was friend with for lengthy (deletion) Angeles.” The balance intel- split received orders to Los from ligence Headquarters, “on National report refers to another murder order from “screwing (deletion) had Berkeley, California” the victim been around because ‘Bennies,’ mind, screwing up a dropping many too him and because was [ízc] lengthy report, security Party.” portion risk to Panther The main the Black bombings Pan- special officer Black addition to mention of murder deleted), (names plans between defendant thers contained information of elaborate jail escape from effect Pratt’s and other Black Panthers’ Pratt others outside the jail, against police necessary if for county weapons use officers included the vehicles) (other escape short distance from the area a switch to “cold” cars although “dry prior pads”; “hideout there evidence of a run” date scheduled break, jail escape plan report also includes infor- for mation from informants never executed. The indicating public upon to be plot kidnap officials “released deleted).” one-way (names receipt Algeria of a via ticket Airline suspect Since the (presumably second Tyrone) “split Angeles,” had Los there is from showing no disputed prosecution that the knew how he could be located. As the evidence un- is murder,” that two male Black Panthers were involved the in “tennis court defendant who position Pratt would be in a police better the suspect than to locate the other addition, “split.” In isit obvious that the report information contained in the is in- guilt dicative of Pratt’s rather than of his plans innocence in that he made escape to jail. from The dissent’s question item 8 selects one addressed to victim Kenneth Olsen and his of lengthy reporter’s answer out the transcript and to by Deputy refers a declaration Public Defender indicating Laurence E. previously Rivitz Mr. that Olsen had identified two suspects other in lineup. The dissent acknowledges that the issue of the Rivitz declaration was raised in 1972 at rejected defendant’s motion for new by trial and the trial court. The issue was not specifically again (see B) raised on appeal Appen. but was apparently Judge before Parker petition on defendant’s corpus recent for habeas before her court which de- was nied. Defendant has not included that issue in original proceedings his before this has, therefore, court. The dissent although resurrected the issue it is not properly before event, any this court. In information known to Pratt at the time his appeal of and was not raised. corpus raising Habeas is not a vehicle for contentions which could appeal have been made on but which were not. The burden is upon the defendant to give a satisfactory raising (In (1974) reason for not the on appeal issue re Walker 10 Cal.3d Cal.Rptr. 764 1129]) 518 P.2d allegations [112 and even if the could be considered under and Cal.2d applicable the rules corpus to habeas the defendant’s unreasonable unexplained delay raising precludes (See in (1967) the issue re relief. In Wells Cal.Rptr. 613].) 434 P.2d [64 As to the dissent's see item footnote ante. changes to be made our are if is that built our Constitution concept A basic into range reporters to have interview KKK members an article and write based on those furnishing polygraph interviews while informants.” The result of the information on Klan use “weed out FBI subsequent publication of the Klan activities resulted in ceasing a number of Klan officials their activities. instance involved an The other anon- ymous derogatory newspaper letter and clipping sent to a BPP officer in the Northeast to discredit a Panther leader’s activities. The committee discovered a third instance attorney’s political background friendly where an newspaper was furnished to a intend- attorney (P. 13.) ed to pertain discredit and his client. None on to the BPP the west pertain “framing” coast and none to Pratt anyone. and none involve process was afforded due petitioner court is whether

fore this whole, trial; when examined is, procedure, conviction as a fair? fundamentally

A fair is no trial all. It is a fundamentally trial which is not at non- is if it is an obviously that a defendant estab- sequitur argue guilty changes are to major duly that such constituted institutions government form and its political process at the legitimate through the only means brought by peaceful be ballot box about us reflects that FBI by The record before and not bullets and bombs. (racist) organization whose means hate violence-prone black perceived the BPP literally war with revolutionary changes use of bullets and bombs included the indicated, Report (see ).D As the Church Committee Appen. law enforcement officers place by putting into go by and the initiative guidelines if took the FBI had few internal threat. COINTELPRO to meet that typi- often case hollow. It follows too petition in the instant Defendant Pratt’s justice a defendant himself system criminal where pattern today’s upside-down of acts,” cal charged murder, “illegal attempted murder and such as with of such or convicted “illegal case, alleged acts” of law on the to focus attention robbery in the instant seeks techniques and mea- commenting propriety officers. Without enforcement COINTELPRO, showing that there is no by here is the relevant sures used fact Pratt the "ten- techniques "framing" included the FBI’s COINTELPRO of defendant murder." nis court trial, only perfect In case Pratt was entitled to a fair not a at bench defendant process fairly justly trial. The record reflects that he was law. tried and convicted due Finally, referring portions record instead of the total dissent selective ignoring controlling precedent apparently has succumbed to the discredited record and “ideal of time, concept expenditure “the perfectibility” which is of sufficient energy, perfect justice patience, money possible eventually and it is to achieve in consistently spawned legal process.” only “noble ideal results that can be all Such a has justice system. pandemoniac” as in criminal described our perfectibility, necessarily neglect pursuit will-o’-the-wisp of of we other our the “[I]n a procedure, notably of an effective the resolution of controversies within rea- elements time,' cost, uniformity, and under settled rules sonable at a reasonable reasonable of law. cost, and, least, price of and in perfectibility “The ideal of denies the existence argument great is procedure, heavily criminal relies on the that no sacrifice too when guilty go free liberty involved. Better that a hundred men should than human life that one innocent man be is convicted, rallying cry perfectionists. is But this of slogan sacrificed gets us no further than does its obverse—better that one life should be may plain be saved. The fact of the matter is in human af- that a hundred others against in life other considerations almost fairs we balance cost human do, say life to everything we is incorrect to that the sacrifice human attain it values—is the end particular justified. question The is one of relative ends is never real price likely view worth is in cost? “But, great given in argue, is to assure that case perfectionists no sacrifice too legal Ignored is order itself and perfect justice will be done. the sacrifice life, designated Ignored legal protect. liberty, property of that the order those necessity procedure we follow lend substance to the moral ethi- also is the cal idea that that the (Fleming, by the sword.” The up perish who take the sword shall those Legal on the Consequences of Current Doctrine Price of Perfect Justice—The Adverse 6-9.) (1974) pp. American Courtroom case, trial. This afforded that the defendant was not a.fair lished fact assured, no feel cases, can defendant question, all invites the any like from an examination his guilt may appear how apparent matter is, due process? under our afforded evidence that he system, prosecution affirmative, methodology adopted the procedural If is not if the answer fairness, we for pay then the price fundamental in our trials lacks loss of the founda- surmise—the may is more than we costly conviction of justice. administration tion of free society—untarnished chal- herein petitioner writ of habeas corpus By petition it was in asserting gained conviction of July lenges (1) wit- prosecution a key of his in that: rights violation constitutional his status ness, Butler, by at the trial denying Julio committed perjury informant, evi- (2) has and withheld concealed government an alibi petitioner’s corroborative of dence which is relevant and part, means to com- and, (3) unlawful by the government privy, defense These the trial. during defense strategy munications concerning true, which view, denial of due process if constitute a allegations, my or, seeks, a dismissal way of relief would mandate relief. Petitioner For the reasons evidentiary hearing. new or an the alternative a trial be hearing should evidentiary which follow I am of the opinion granted.

I Were That There the Court Indicates The Record Informants Before Who Had Access the Trial During in the Counsel’s Environs Defense Utilized Strategy All Defendant. Information court, review certain docu- which includes a record before the 21, of this court on hearing August an ex in camera ments at parte there was more than one the trial during that to and prior reveals defense had and to the information the who had access person as infor- and that these acted persons it would utilize strategies before The information Investigation. Bureau of to the Federal mants at confer- were several present reveals that these informants the court The existence the trial. and his attorney during between petitioner ences the first time the was revealed to petitioner informant of one such 1979. December in this revelation. flaw process find no due

The majority apparently did testify informants not that since the position take the They 892

since the FBI states the informants informa- only general obtained prosecution tion which was not transmitted to the this constitutes no which to upon grant petitioner. basis relief right well absolute It is now established that a defendant has an counsel which the absolute to communicate with right effective includes of an into the his counsel in The intrusion informant private. attorney- is in is when a defendant is for trial or trial relationship preparing client in the Sixth violation of the constitutional contained guarantees in the to the United States Constitution and California Amendment I, Moreover, Constitution, Court re Supreme article section 15. our has enunciated this Barber v. Court explicitly right Municipal cently (1979) 24 598 P.2d 818], Cal.3d 759-760 Cal.Rptr. [157 through attorney-client relationship case intrusion into involving intrusion, the law through informants: “The enforce trickery, use of in the conferences of attorney-client petitioners ment confidential agent confer with one’s cannot be condoned. The right privately attorney the American criminal rights guaranteed by ‘one of the fundamental court or violate.’ law—a that no can In re right legislature ignore Rider, (See also 965].)” 799 P. United Cal.App. p. supra, [195 (1980) States v. 447 U.S. L.Ed.2d S.Ct. Henry [65 which Two relief have been in this 2183].) arguments presented against The that it is nullified Barber decision. court said imma case are is to crimes the intrusion detect future rather purpose terial that Moreover, Barber, it was argued than to discover defense strategy. here, that there was no evidence the information trans present that, nonetheless, held Supreme mitted The Court prosecution. dismissal of the The rationale of charges. effective only remedy to be of confidentiality is that are entitled assured ruling people in a be with the alone or confer attorney whether their communications rule is because inadequate ence An use setting. exclusionary be difficult and because an prove obtained evidence would illegally incentive to deter rule would not exclusionary provide necessary state from such violations. agents in Barber the in- see a distinction between fact that majority whereas, case, in this was a sheriff as a codefendant posing

formant auspices under the of the federal counterintelli- acting informants (Cointelpro). Informants I see no distinction. in this gence program and, in to a state if that is a cru- report case were to position agency to resolve the cial seems issue point, evidentiary hearing appropriate Angeles are no in this record from the Los Police since there affidavits that (LAPD-CCS) to indicate section conspiracy Department-criminal event, such a In any uncovered. receive the information did not they involved is to guard the principle inasmuch as distinction is artificial either to counsel. One the effective right removal of against government If the rule begins not. or one does with counsel privacy has absolute governments distinctions between such as making be eroded factors by whether the information evaluating or governments, or agencies obvious or substantial skimpy obtained was “specific” “general,” in ar- it is an exercise obscure, there is no rule. Similarly, then soon is to one applicable category of law principle tifice say is perceived by because that group is to another people inapplicable “militant, be a violence- which the infiltration to perpetrates agency of a court to the establishment permit hate Is this or prone group.” of an of the director upon perceptions agen- rule which is dependent it is acts which illegal often must we remind ourselves that How cy? curtailed, must not surreptitiously must be not deviate We thought? extreme, no matter for this bodes igno- curb variance how thought, rance of the contributions of our most severe critics and ignores first climate of step conformity such curbs are the generating this Nor we situation Barber from neutrality. may distinguish one on the basis that the offenses involved here are brutal in nature. The issue is not whether we dismissal as to misdemeanants ver- permit is, sus violent felons. The essential issue do we adhere to principles which resist which insure fairness no degradation judicial procedures matter how or how serious the offense at It is of no mo- issue? petty ment intrusion was discovered governmental subsequent trial and is conviction. There no the defendant to discover duty upon (See (1979) misconduct In re government prior trial. Johnson 834], Cal.3d 769 598 P.2d case to Cal.Rptr. companion [157 Barber, The retroactive effect of Barber or extension of its supra.) prin- to other here as I ciples factual situations of no concern inasmuch do not point at this se dismissal and inasmuch as the urge per petitioner has met his limited burden o*f facie evidence in establishing prima sup- of his port contention. Whether or not the information obtained informants was disseminated to the it is clear that there prosecutor, sufficient denial to of due to warrant relief. petitioner process

II The Record the Court Indicates That the Prosecution Witness Before Butler Have Been an Have May May Perjured Informant Himself This Fact.

Regarding he At trial witness for prosecution. principal Butler was the Julio the Olsens. to shooting confessed had orally that petitioner testified re- County but Angeles been sheriff for he had a Butler testified Los all ties with severed had beauty shop signed operate and answered questioned was specifically He law enforcement. follows: were Party the Black Panther were' for working And when

“Q. you time? at same for law enforcement you working also “A. No. You had severed ties law enforcement?

“Q. any you had with correct. “A. That’s Department the Sheriff’s leaving time since

“Q. Have you for FBI the CIA? worked

“A. No.

“Q. Are you now FBI working and the CIA?

“A. No.”

Petitioner contends that Butler committed and that this cir- perjury The record cumstance necessitates reversal his conviction. before (not the court contains a statement Butler made under by penalty 17, 1979, in- dated November that he ever FBI perjury) denying formant. Also before us is letter dated written January by Lee Colwell the FBI to our trans- Acting Attorney Director General to that office what described as “40 of documents mitting pages is letter, which set forth contacts between the FBI and Julius Butler.” The course, is not in affidavit nor are the single-page reports form contacts furnished the Bureau but There anything hearsay. appar- however, no that these the FBI ently, dispute pages produced by their initial the FBI from files. These memoranda establish contact Butler The memoranda show that there was August 1969. of a machine But- possession Thompson gun by discussion regarding FBI contact with Butler. The maintaining major ler and interest

895 and these memo- Panther Party the Black conversation subject from August and the FBI Butler contacts between randa show some 33 to information 28, 1972, which he 14, 1969, supplied during to April in Los Angeles. Panther Party the Black FBI about the summarizing FBI document is a Los Angeles Of additional interest 29, 1969, and January between of petitioner five-month surveillance 12-13) of a Black Panther a report (pp. which includes May blacked out name has been in The informant’s Gardena. meeting Party The expla- at 13. top page is the handprinted but the word “Julius” January in a letter dated is provided nation of the reference “Julius” At- 16, FBI Lee Colwell the State from acting director General, Deukmejian. torney George the at appears as to the reason ‘Julius’ response question

“In Pratt, 2, 1969, on of Los dated June top Angeles report 13 Page ap- the name McCloskey, to you by Congressman which furnished 13 of Page referred for FBI The pears indexing purposes. meeting in the residence of Julius Butler report early this was held at this contained on page while he was not the source of information at FBI as Headquarters his was marked for indexing name report, However, re- in the ‘Julius’ Xeroxing process only ‘Julius Carl Butler.’ is From these documents it mained on the furnished to copy you.” the Black the FBI with information about apparent supplied that Butler 14, 1969. While in from at least August Panther Los Party Angeles what criteria defines may regarding there be semantic distinctions FBI, for” “working “informant” and about what constitutes was, instances, some described indicate that Butler memoranda which, translated, racial probationary as means a therein a “PRI” informant. fact which view, was a material

In Butler’s status as an informant my as deter- His status at the Pratt trial. credibility could have affected to his would be relevant as evidentiary hearing mined an appropriate (See v. truthfully falsely. People testifying interest Ruthford 1341], 534 P.2d where (1975) Cal.Rptr. 14 Cal.3d 399 [121 because the fact that of the defendant court reversed conviction to lie was from kept jury. witness had a motive key prosecution doubt.) a reasonable felt was not harmless beyond court this befqre nq prcsecutcr Deputy ccurt There evidence re- Butler’s knowingly suppressed Kalustian Richard Attorney District 896 was, denied, oath, whatever with the FBI. He has under

lationship, FBI that he had involvement the Pratt any knowledge prosecution. faith, however, (1963) Good is immaterial here. v. (Brady Maryland 215, 218-219, And, 1194].) U.S. L.Ed.2d S.Ct. [10 399, 407, in was v. Cal.3d explained People Ruthford, supra, quot- (1959) 1217, 1221, v. Illinois 360 U.S. L.Ed.2d ing Napue [3 79 S.Ct. ‘“The estimate of the truthfulness and jury’s reliability 1173]: innocence, of a witness well be determinative of or given may guilt it is such subtle factors as the interest of the upon possible witness life testifying defendant’s falsely liberty may depend.’” has, view, Petitioner a sufficient facie prima showing made my warrant further inquiry. on the of Butler to possible perjury part Ill Indicates That Certain Record Court Information Before

Which Have Decision Was Not Revealed to May Jury’s Affected

Petitioner. A. The Petitioner Have Been a May Cointelpro

Target of arrest and trial it that he petitioner’s appears During period been, contends, well as of the may principal target have petitioner That FBI’s counterintelligence program program (Cointelpro). informers and secret campaigns covert and and utilized aggressive seems, Three documents petitioner. objective discrediting A memorandum from the special agent serve to illustrate the point. director, (SAC) the FBI of the Los field office to charge Angeles “Counterintelligence 28, 1970, is. captioned, with the date January Program, Groups, Intelligence, Black Nationalist—Hate Racial the creation of an under- anonymous BPP.” The memorandum proposes attack, and ridicule the of the expose, image “to ground newspaper suspicion BPP in the and foment mistrust and community amongst It also the creation and distri- past membership.” proposes current leaflets, one of which was to be directed at peti- bution of two fake Number is tioner. 2 the memorandum states: One page “Operation On exercised by designed legitimacy authority challenge Pratt, BPP Minister of Defense for South- Deputy Elmer Gerónimo ern California.” activities the petitioner’s regarding is a report document

The second “Constant consider- which states: to June from May counterintelligence the utilization possibility ation given toward neutralizing directed being with efforts measures Pratt functionary.” effective BPP to the FBI Angeles SAC Los from is an Airtel document

The third FBI send that the 10, 1970, which recommends August director dated prison charging from his release upon Newton Huey letters to fake mistreat- were “brutalized members BPP absence Newton’s during of staff. national chief Hilliard, the BPP David Pratt and one ed” turn the BPP and to split the letters proposed objective Hilliard. Pratt and Newton against

If, fact, such a as Coin- program the was an petitioner object telpro material would have been relevant and that information trial, had been made known to At time of if this information jury. the it the outcome of the tri- the have affected petitioner, might profoundly the al. An well determine truth or evidentiary hearing might falsity so, and, was if if in- determine charge petitioner target was, fact, suppressed. formation Have May

B. The Witness Olsen Percipient Prior Made a Positive Identification Subjects. Other prior Petitioner that Kenneth Olsen to trial identi- alleges positively Perkins, scar, fied a man named who no facial as man had Ranald who shot his wife identified another man named Vance as his ac- This complice. place identification took on December purported 1969, at a This is police upon assertion based the declaration lineup. by Los Public Defender Lawrence E. Rivitz who Deputy Angeles County was slip was Perkins. witness which representing Allegedly signed Olsen to this was withheld from effect petitioner. Olsen, witness, Kenneth positively Inasmuch as only percipient assailants, identified at the trial as the shorter of two such petitioner observer, material, this existed witness it seems to if it was slip, prosecution should have the de- provided relevant evidence which in that Olsen’s emphasized Its is importance discovery. fense during lineup was: at trial regarding partial testimony at that anybody lineup? identify Were able to “Q. you of that an identification I make really ... I didn’t feel could “A. This feel, person.” really, I didn’t person, because in his statement Rivitz the strong contradicts testimony directly was posi- Perkins and Vance identification of that the Olsen declaration determination to make a factual required is evidentiary hearing tive. An had to evaluate of necessity Since the jury event. regarding identification, regarding prior information such of Olsen’s credibility evidentiary hear- material. Denial of would have been identification that if Mr. Olsen did make a finding this has the effect of court ing by material evi- substantially ID is not alleged, the identification harmless dence, beyond which was material evidence is substantially pa- We note finding view such a erroneous. doubt. In my reasonable in 1972 Rivitz declaration raised issue of the that the renthetically had per- that Kenneth Olsen new trial the context at a motion for basis of due motion was denied on the himself at trial. The jured Rivitz was should have known that because defense counsel diligence v. of States Wade authority at the the United present lineup [under an (18 87 S.Ct. and had (1967) 1926),] L.Ed.2d U.S. 218 Mr. Olsen’s version of to ascertain if would controvert opportunity is The declaration The issue here different. posed the identification. state, the police the previously through raises an issue not litigated that and, office, material suppressed or district the department attorney’s evidence; is, therefore, wit, It not res nor judicata the witness slip. estoppel. of collateral subject

C. The Name a Second Suspected Uncovered, Assailant Been May Have

Revealed to the Los Police Angeles but Not Revealed to Department, Petitioner.

Before the court is a which or also document indicates that on about 29, 1971, March FBI Los provided Police Angeles Depart- (deleted) ment name that FBI believed person apparently in the person second involved Santa Monica The de- shooting. Cochran, July fense Johnnie attorney by his declaration Richard and that this information provided he was never asserts that no information he possessed him that Kalustian, advised the prosecutor, that evidence but is no question There assailant. second regarding bearing upon directly is evidence identity a second assailant’s regarding re- the information nature of The precise or innocence. the issue of guilt it was provided or not whether suspect, this second garding that sus- regarding investigation further and whether attorney district is time, It is, petitioner. unknown was undertaken at pect discovering directed manifest, indeed, evidentiary hearing an If the in order. its materiality the information specifics peti- withheld from and was and material is substantive information against ruling majority by him. The tioner, was denied process then due whatever the evi- of law hold as a matter evidentiary hearing be, it cannot constitute may assailant possible the other regarding dence be which, grounds if would suppressed, evidence substantially material knowledge inasmuch logic defies position for reversal. Such in- provide probability in most the second assailant would identity of assailant, someone petitioner be into the the other identity of sight else. May Evidence or Inculpable

D. Exculpable Been Uncovered by Telephone Have and Not Revealed Surveillance Petitioner. “has concealed government charges

Petitioner further “corroborative, alibi defense.” part, petitioner’s withheld” evidence in the San that he was included his assertion Pratt’s defense trial 15th, 1968, 13th, to De 14th or Francisco Area from December Bay in northern California 26, He that while 1968. testified cember ba daily office on main Party’s Black Panther called the Los Angeles whereabouts petitioner’s evidence regarding sis. reliable Clearly, petitioner that 1968, evidence compelling is the most December radio and indicating are two documents obtain. the court could Before November from BPP headquarters surveillance of telephone which of memoranda two other pages There are to December 1968. Black Pan in activities of interest FBI maintained an show that the have The memoranda Oakland, 1968. in December California thers render the information which the usual deletions been released with however, If, were telephones unintelligible. contained therein practically confirm or refute will either that the records it is conceivable tapped, at the that he was in northern California contention petitioner’s view, or potentially excylpable this Certainly, my time of the murder. de have been to the provided petitioner’s evidence should inculpable (not affidavit) FBI has indicated by fense counsel. The have taps recorded these by of the conversations transcripts telephone will provide opportu been lost An destroyed. evidentiary hearing lost, be or if can they determine if are inextricably to nity they that such informa apparent or reconstructed. It seems most produced tion is and material. relevant one can con- to court presented

In from the evidence summary, have (1) Mr. Olsen may conclude that reasonably servatively the trial and as his assailants to prior identified other positively people (2) petitioner; this information have been from kept may one person suspected being LAPD the name of a probably given revealed to the petition- the Olsens and this was not of the assailants of er; in Los (3) on BPP “taps” headquarters radio telephone and/or month to and in- prior were in existence for a Oakland Angeles and/or was not provided of the murder and this information cluding the date “ (4) have for neu- targeted petitioner the FBI petitioner, may his trial. tralization” prior which is conduct of evidence favorable to an accused

Suppression of a conviction. is sufficient for reversal ground attributable to the state is that 399. The rule of Ruthford, supra, 14 Cal.3d People v. Ruthford or innocence question guilt which directly upon if evidence bears to establish required prejudice the defendant is not suppressed, evidence, opportunity present himself due to the denial {Id., 406-407.) It is appar- is mandated. at pp. reversal of the conviction relating possible of information ent that the alleged suppression LAPD, if in- and the knowledge of the second assailant identity telephone taps the existence of the had such knowledge, deed they if the sup- Ruthford, further holds would come under this rule. witness prosecution of a credibility key evidence bears pressed upon (Kenneth Butler) the defendant must establish then and Julius Olsen addition, and, that he was prejudiced materiality substantial {Id., 408.) at p. at trial. lack of the evidence present ability I that acts federal point argument by am not dissuaded at this by authorities, under the umbrella cannot fall if unknown to state agents, to the state. In my it is not conduct attributable of because Ruthford extent degree, to determine required an evidentiary hearing view did, existed, if it which cooperation relationship of the and nature with regard federal authorities and the the state authorities between liai- a federal-state showing herein. Upon the issues raised each of in the issues, possession of information knowledge as to of the son other, actu- whether or not should, fairness, be imputed of one (See United authority. the prosecuting possessed by al knowledge 569-570; v. (5th 1979) People 603 F.2d Cir. v. Antone States In the Cal.Rptr. 192].) (1976) 581-582 Cal.App.3d Mejia [129 with two Mexican concurrent the defendant was arrested case Mejia deport- and were immigration The latter were turned over nationals. unavailability ground motion to dismiss on ed. The defendant’s case, who, were in a position the facts of the witnesses deported upheld to the defense was granted to matters material testify state authorities in- was that had the appeal. court reasoning the witnesses before deportation formed of the Mejia pending occurred, available for have them and held them subpoenaed could that the state was in no in- way trial. The court rejected argument volved with the the witnesses. The court held that where deportation of there was the state and federal authorities the re- cooperation between for the of a constitutional had to be sponsibility deprivation right (Id., 581-582.) shared. at pp. of the

Being cognizant problems inherent in the many position should be but evidentiary hearing granted, mindful of being equally the crucial issue of case, that due was exercised in assuring process I that further urge exploration is here. For it is due required process which protects individual, not only personal freedom of each but the collective of those in a free rights society.

The petitioner made having facie case for the prima alternative re- lief requested his writ of habeas corpus, a judge superior court should be as referee to appointed hold an evidentiary hearing including the taking of evidence and allowance of such as is discovery necessary (See and fair in the exercise of sound discretion. Pitchess v. Superior (1974) Court 11 Cal.3d 535-536 Cal.Rptr. 522 P.2d [113 Code, 1474.) 305]; Pen. should be made and Inquiry of fact findings § rendered but not regarding, limited to the necessarily following issues:

1. Did any government have an informant or entity informants present communication between during any petitioner and his attorney before, dur- defense either petitioner’s individual any regarding

or other or to the trial? ing subsequent existed, is informants the government

2. If such an informant or "not, and, informant, if such identity to disclose the agency prepared why not? is and the informant

3. If said disclosed identity informant’s oath, conditions, what what at places examined under under report- what information was what was the informant present dates to ed the communications and whom when? regarding Inves- Federal Bureau of 4. Butler informant for the Was Julius trial? Did petitioner’s at criminal to tigation prior giving testimony to his at trial with petitioner’s regard Butler or testify accurately falsely FBI, not, his mo- and if what constituted relationship status or with the tivation for false testimony?

5. Was the focused on “neutralization” petitioner subject Cointelpro his trial in 1972? prior

6. there a kind any Was state-federal relationship regarding so, If what the nature that relation- prosecution petitioner? information, ship? any agency What if was transmitted federal any, any agency regarding petitioner? state 7. Was there individual in the another of involvement suspected so, crime of which petitioner was accused? If re- any information such if garding person any steps, state What agency? transmitted any, were taken to a resolution this If pursue to information? no investi- undertaken, gation was not? why

8. Did the witness other identify person persons Mr. Olsen so, assailant(s) par-" If what were the prior testimony trial? ticulars identification? from evidence petitioner

9. withheld agency Has any governmental December whereabouts during period regarding petitioner’s Is in the possession 1968? there presently December through where- petitioner’s information regarding of any governmental entity abouts these dates? during

903 be taken to resolve must evidentiary hearing The procedure of which resulted governmental impropriety of whether there question herein. petitioner of due process in denial 30, Dunn, J.,* was denied December 1980. a rehearing A petition granted. should be petition opinion was of the Appendix a in red ink which was Following typed copy nine-page of the letter handwritten given by C. Butler aka “Julio” to Ser- envelope witness Julius contained in the sealed opened August was not until October geant Duwayne Rice but which on Sgt. 32). back “Attn: (grand envelope written jury had exh. No. The printed by portion envelope capital letters hand: Across the sealed Rice.” “Only my Opened be the event Death” by followed the initials “J.B.”. “Aug Persons; Concerned “To All living writing working under the threat of assina- “At the time I’ve been and of this Seale, Namely Bobby the Black Panther.

tion Local and National Leaders of [szc] Pratt, (‘Gerónimo’) (Chairman (Dep. Party) Elmer G. Minister the Black Panther Sec., Defense, (‘Long John’) (So. Area), Washington Calif. Field So. John of Rank of Omar Calif. Assasin, (Body-Guard Capt.) and Major), Rodger (‘Blue’) Rank Lewis (In Locally). Charge Squad, Goon Security (Responsible for safe- position one Lt. “At time I held the of So. Calif. guarding Attending Rallys Lives of Persons and Events. [sz'c] “During changing its direction from that year began party I to notice the of 1969 Newton, theorys practices of P. dissented with some by Huey set forth [szc] July strongly 1969 I more Leadership. During months of June and Calif. the So. Leaders, foolishly doing they carelessly, I because felt critisized these [sz'c] people. I also critisized things for the [sic] that didn’t have a direction benificial [sz'c] sincerly Party attempting who were Physical or threats to members [sz'c] Actions Respond I Relieved people to. First was impliment programs oppressed could [sz'c] week, working following capacities. The Just Prior to of all duties and offical [sic] front, talking four male drinking and while I was Oakland Conference for United Gerónimo, friends, Long rang, John and Omar. A which time I let in the door bell at this New to Adhere to grew out of the fact I still Refuse Heat discussion Direction and [sic] [sz'c] Long John Drew a up, at which time gang was order shut Like [sz'c] Head, my it pointed cock and Rugers magnum and cocked to full Black Hawk 357 him, him, you.’ I’ll you don’t shoot shoot ‘shoot if Gerónimo shouted several times then At this time them, they would they shot me have my visiting male friends told If four arrive. building who had seen them people in the with them and other deal Building. from the

“They withdrew then tele- I over. I then arming for the crisis knew wasn’t immediately myself “I set about withdrawing from immediately I was office and informed them phone the main [sz'c] Northern to contact the Party. attempted I on several occasions Panther Black Angeles. knowledge of situation here Los they if had Leadership inquire Washington (‘Long By I John one was answered time I was to contact able first (Chief [¿7c] of David Hillard John’) answering at the Residence the Phone who was Almost Long and Geroni- threats from John Staff). immediatly I Received Death [sz'c] *Assigned Council. Chairperson of the Judicial mo, persons (who also on the streets Had Relationships party) with the who advise life, Danger me of a impending my Knowledge their hearing came from [íz'c] [ízc] John, Blue, Long say just Gerónimo I Capt. like Franko and that the party was go: ing to kill me. On one occasion I Listened phone in on a my conversation from second disgruntled-member Phone while a say or I should supporter of Party ‘Long asked why Party going John’ to kill Julio. “1 ‘Long heard ‘$1,200.00 John’ state pig., Receiving ‘Julio is a He per month from the C.I.A. and Angeles the Los Dept., they Police proving That Had evidence my badge number and Rank in the C.I.A.’ He Also stated I was the man who killed Capt. Franco, and I Responsible was the man for the ‘Bunchy’ Deaths of Carter and John Huggins me, at UCLA And that the order was out to Kill people’s save the Liber- struggle. ation put And that I Had the ‘Feds’ on Omar’s trial and He was in [ízc] Hiding (which Knowledge of.) I had no “I’ve Continually man,’ Received persons calls you’re unknown ás ‘such a Dead ‘you know too much and must die. “I Bobby Him, call seel in Oakland and was unable to talk several [íz'c] [íz'c] my Hours later He called Home and Hanging said that I was foul for up the Phone on Gerónimo, I stated to Him writing position I was paper directing His attention to the situation Angeles Here in Los and the Death threats I Received from Gerónimo and others. And told I that was a man principles gang-land dedicated to and not Activities. He any paper me that I put wrote would be in the Trash can. And I was ordered to $18.00 get together, plane bring catch a my ass to by stating Oakland. I declined if he understood and going condoned what was on in Angeles, Los the whole conversa- why tion was futile the one-way Airline simply Laughed ticket. He ‘you got and said message’ hung phone and I up. Following “The Day Sgt. I Angeles contacted D. Rice of the Los Dept. Police Com- munity Relations Sec. I met with Him and I informed Him of the situation and that was also advised Gerónimo that I Penitentery went to Jail or the [ízc] [ízc] [íz'c] They get would me there. carelessly Bragged about. the as some and the ‘Wash me Reasonable cause to ing “The a threat to me Killing time Breggado following wounding during Away.’ Capt. Reason I feel the Death [íz'c] that I was of Her Husband on a Franco year believe these conversation with these ^[11] of 1968. No. (Black No. 1: Gerónimo for the just persons [II] like Franco and Panther Tennis Court in the threat 2: Gerónimo and Blue Party) men, Responsible may gave Killing myself Jan 1969 and be carried out. them No Alternative but to of a White School Teacher and other City being Acts of murder constantly stating of Santa Monica Through Responsible for persons Listen- Have they testify “I can not Afford to to this in Represents court because this Letter [íz'c] only Real Protection I my family. have for Hand, “All the Above by my Statements Are True and done own my and of own free will.

“Julius C. Butler “AKA: Julio Julius C. Butler” “/s/ (Original italics.) B

APPENDIX Publication) (Not for Dist., Four. Feb. Div. 1974.] No. 22504. Second [Crim. A-267020) PEOPLE, Ct. No. (Super. v. Respondent,

THE Plaintiff PRATT, Appellant. G. Defendant ELMER Angeles County. Kathleen Los judgment Superior Court of from a APPEAL reversed, conviction, affirmed; and Parker, sentencing procedure Judge. Judgment of resentencing. case remanded for Appellant. for Defendant and Martha Goldin Saltzman and Goldin and Jr., General, A.-Hinz, Attorney Assistant Chief Younger, Attorney Edward Evelle J. James, General, General, and Norman H. Sokolow Attorney E. Assistant William General, Schwab, Respondent. Attorneys for Plaintiff and Deputy Howard J. Opinion DUNN, indictment, felonies, J.—By Jury charged Grand defendant was with five i.e.: (Count I) 29, 1968,1 murder of Caroline Olsen on December in violation of Penal Code 187, (count II) 18, 1968, robbery

section of Kenneth Olsen on December in violation of 211, (count date, III) Penal Code section the robbery Caroline Olsen same in viola- section, IV) date, (count tion of the same code intent to commit acy assault on Kenneth Olsen the same murder, and, (count V) in violation of Penal Code section 217 conspir- date, robbery to commit the same in violation of Penal Code section subdivi- crime, counts, sion 1. As to this alleged; latter three overt acts were as to the first four that, crimes, alleged firearm, it was committing in the defendant used a namely, a revolver and pistol. apprehended arraigned, an automatic Defendant was and trial, pleading guilty.” During “not the count V was prosecution’s dismissed on the mo- murder, jury tion. A defendant guilty fixing found defendant degree; it in the first found counts, guilty robbery fixing degree, of both each in the first and it also murder, guilty found defendant of assault with charged intent to commit in count count, IV. As to pistol. each it was found that defendant used a Defendant’s motion for a new trial was denied and prison defendant was sentenced to state on each of the four counts, II, the sentences on counts III concurrently and IV to run with that of count I and the sentence on stayed, stay count III to be permanent to become if defendant’s conviction is sustained appeal. Defendant’s appeal appeal judgment notice of states that his from the is on three evidence,2 grounds, (1) (2) i.e.: (3) Penal Code section Insufficient error of statutory ground only law. The tion of the verdict or new trial peal if such is requests stated relates to new trials and to for modifica- judgment. separate appeal ruling denying No lies from a court’s a Code, (Pen. 1237), although ruling may motion ap- be “reviewed” on § Code, judgment. (Pen. 1259.) from the Accordingly, any separate appeal, §§ intended, motion, ruling upon based the court’s on the section 1181 dismissed._ date, apparently having 1 Mrs.Olsen died this been shot on December 1968. ground, stating, 2 Defendant abandons this his “Appellant’s challenge brief is not to sufficiency of the evidence but to errors....’’

I. in Court’s Denial Error Claimed of Defendant’s Jury Discharge Petit Panel Motion motion, heard denying in is that the trial court erred Defendant’s first contention by the method This motion attacked discharge petit jury panel. June which Supe Angeles County Los in the district juries were selected central trial City of Santa against in charged all occurred The crimes defendant rior Court. Monica; there case transferred to have defendant’s prosecution offered and moved district) defendant resisted (the Angeles “west” but superior for trial Los court’s which by the court prosecution’s motion was denied motion declined the offer. The a Ne that defendant is agreed It was between counsel then defendant’s motion. heard motion, that, transcript of a similar would read the gro deciding in the court Adams, case, Supe People Angeles Los Negro namely, v. motion in another made A-276392, be that motion to in that case on rior No. the evidence received Court received here. considered as tran- ruling, us with the Although provide he does not defendant attacks the court’s mentioned; nor it marked the record before us script appear its does not content However, court division of this case was considered a sister as an exhibit. the Adams its (1972) Cal.Rptr. Cal.App.3d Superior v. 144] Adams Court [104 jury selected That involved opinion county-wide evidence there received. case summarizes the In in the central district. try Negro defendant for“crimes committed but, noted, defendant district since be the crimes occurred another our case it should district, “vicinage” (People no place question trial in the central insisted that his take Indeed, 345, (1973) raised. since Cal.Rptr. v. 9 510 P.2d Jones Cal.3d 546 705] [108 is no to conclude petit apparently county-wide, was there reason jury here selected jurors Santa area were excluded? prospective from the Monica arbitrary, denying was him his con argues jury method petit Defendant selection However, appellate decision rights equal protection process. to and due stitutional Court, directly in these Superior supra, Cal.App.3d v. 27 determined issues Adams is to only response to such outcome contrary to defendant’s contentions. Defendant’s nor, say wrong. Supreme does our apparently, court was We do not think so that the cases, hearing companion two all on Novem Court which denied a in that case and in (Sandoval (1972) Cal.Rptr. Cal.Rptr. 27 741 Superior Cal.App.3d ber 1972. Court v. [104 157]; (1972) Superior (Bowen) Cal.App.3d 27 738 People v. Court [104 159].) Accordingly, rejected. defendant’s contention is motions, namely, a sec- pretrial made two under Penal Code Defendant other motion evidence, suppress suppress tion motion to an in-court 1538.5 another defendant, by Reed. Both were expected identification of heard be made Barbara motions denied; rulings jury’s presence of a and both were defendant contends these out were erroneous. II. Error Claimed in the Denial of Defendant’s Suppress Anticipated Motion to In-court Reed Barbara Identification of Defendant testified, Regarding jury’s presence, out that on the second motion Mrs. Reed hobby shop Shortly in Monica. before was alone in her Santa December she o’clock, ap- closing p.m. Negroes and were in there time at 8 two entered her store Pratt, court, eight who proximately five to minutes. Defendant was in was identified being who described as Mrs. as the of the two men entered. She him Reed shorter tall, shaven, having being weighing pounds, clean a approximately about 5’-6” bridge his nose. She stated that having depressed scar above the haircut and short loose, long, jacket which called a light tan she pants, brown jacket. brown shoes and he wore “safari” him face. talked to face to She photo- coming she had shown collections of two before to court been On occasions She of defendant.' pictures which included two graphs by police, collections could identi- seeing photographs you have “Q. those . us whether.. .not testified: .".tell today.” Yes. could have identified him today? fied Mr. Pratt A. ... I (and objects here) identi- photographic that the objected Defendant in the trial court gave suggestive not fair. Mrs. Reed procedure impermissibly fication testimony was that, just she tes- nearly years after the incident before to the effect two her grand police officers showed jury, in front of the Santa Monica tified approximately pho- the book two in album. Toward the end of photographs showing Prior tographs person Pratt was shown. which she identified. Defendant they police only they photographs had some photographs her the told her at, might recognize see if the man like her look to take her time and she would men night. in her store that police, meeting before with she had seen Approximately a month Santa Monica incident, Angeles. told them described police downtown Los She had about album, preceded by similar admonitions. photograph defendant was shown a Negro: “Some It a mixture of photographs men in these were not all were mixed. these, that, general seeing impression she pictures." She before had “retained testified one, store,” but, [my] I appearance been at “short of the could of the men that had face, had a just picture person my deep, mind.” He round his entire his entire her to his face. Of the two bridge scar above the of his nose which directed attention her, profile view and thus did not show photographs defendant shown to one was a view, away too far to show photograph scar. The full but the camera was the the scar. other by the scar. identify photographs She in the did not defendant Angeles were identical photographs The two of defendant shown to her Los recognize she did photographs the two shown to her in Santa Monica. She testified not having seen in Los in the album as been before photographs the other Santa Monica Angeles. grand hearing depicted of photographs jury The exhibited to a number her at Negroes. appeared apparently These showed height photograph. male chart in each A tall, but Mrs. testified only other were under six feet Reed that defendant and she had one man group of paid height to the charts when she was shown this no attention photographs. 92, (1969) Portions of opinion People our in 2 Cal.App.3d Cal.Rptr. v. Adair 96 [82 There, pertinent. (1968) are we People Cal.App.2d referred to v. Pettersen 268 460] 693], Cal.Rptr. (1968) 267-268 from quoted which Simmons v. United States [73 [19 390 377 ‘““Despite U.S. L.Ed.2d 88 S.Ct. as of ini follows: hazards 967] by photograph, procedure widely effectively tial has in identification this been used enforcement, standpoint criminal law from both apprehending of offenders and of sparing by allowing suspects ignominy eyewitnesses innocent of arrest to exonerate through scrutiny photographs. danger technique may them in convictions The result that use may substantially by be based on misidentification lessened a course of jury potential at which exposes cross-examination trial to the method’s for error. unwilling prohibit employment, We are to its supervisory either in the exercise our or, less, Instead, power a matter requirement. still as of constitutional we hold that facts, eyewitness its own and that convictions based on each case must be considered on following will be pretrial by photograph identification trial a identification set aside ground only procedure impermissibly if the photographic on that identification was so suggestive give very irreparable as to rise to a substantial likelihood of misiden'tifica- (Also (1971) People Cal.Rptr. v. tion.””’ 481 P.2d see Lawrence 4 Cal.3d 278-279 [93 212].) procedure suggestive” by The here “impermissibly used was not contended defen- erroneously We trial its nor dant. defendant’s motion. conclude the court neither abused discretion ruled on Error in III. Claimed Denial of Suppress Evidence Motion to Defendant’s evidence, pistol, photograph a was based of it suppress to directed toward Defendant’s motion house,” upon a of that “everything was obtained from the search

and contention that such and illegal was obtained means of an search prospective evidence Five no warrant had been issued. witnesses stipulated seizure. was search It by defendant. People. None were called testified Naveau, assigned duty to testified he was on policeman, California state John UCLA, groups penetrate there. capacity to subversive campus of an undercover Party,” two such and “Friends of Black Panther He was a member “SDS” Brown, Party,” previously Panther had informed Joe a member of the “Black groups. 17, 1969, January Huggins On John reliably regarding campus him various activities. Carter, Panthers,” campus. “Bunchy” were and killed'on the Joe two “Black shot “US,” group with an they been killed members of outlook Brown told Naveau had told Naveau that Black Panther mem- to that of the Black Panthers. He also similar only Huggins’ get weapons against retaliate not US going were to house to bers but also officers, Angeles set this murder against police they whom believed “had Los give Century telephoned Boulevard. Naveau up.” The house was located at 806 Angeles Department superior, Los Police information the state C.I.I. his immediate to the present testified was about Angeles police detective lieutenant Keel Los Former 17, 1969, killings and about was received about the p.m. January when information on Century Boulevard to going two-story rear at 810 to the house the Black Panthers lot). (806 and 810 were the same gather weapons to retaliate testified, summary, about 4:10-4:15 Finn that at Lucy, Baker and Police officers double- Lieutenant Keel informed them January p.m., the afternoon going and that members Black members other of the two Panther murder rear Boulevard, house, guns to re- get stockpiled there order Century at West premises. went to the taliate. officers up alighted; she went the stair- arrive a female Volkswagen was seen to and A blue wagon up, stopped drove of the rear house. A station second floor way and entered the Next, emerged from alighted. a man and the same female driveway in the and someone army large box and an ammuni- carrying a cardboard stairway, the the man top the of coat, stock under a its partially rifle carried a concealed box. The woman tion off", and but were things drove in a Chevrolet automobile They put these protruding. stopped, driver in- car its had away police. before the by the Just stopped a few blocks stop; to the badge his and his command ignored by an officer of tentionally display the got persons these out stopped; The car two finally his revolver. produced service officer The had loaded .45 caliber woman a given pat-down a search. the car and were of waistband, together pistol of .45 clips her with two loaded pistol automatic tucked into The purse. rifle was on the automobile’s floor. caliber ammunition in her seen of it showed that it top box It had no on it and observation cardboard contained additional ammunition cans. considerable also was there. rifle, A search the vehicle disclosed another of ammunition, masks, gas equipment. and miscellaneous supplies medical stairs, apparently The three officers to the house. A woman came down the returned officers, (Nathaniel Negro upstairs. saw the screamed ran back A male one of and Clark) wagon, holding standing by of the a open was observed the driver’s door station ground on rifle and a suitcase. the Pratt was seen on hands and knees the on Defendant vehicle, hiding passenger’s trying past and to “sneak down apparently side of the anyone the and answered, Thereafter, the car if house police side of to the door.” The asked him there was the “Yes”; asked, again replied, guns have there?”’ they he he then was “‘Do and ground. “Yes.” laid Defendant Pratt and Clark were handcuffed and on the reaching pistol Clark toward caliber which was observed a .45 automatic gun away was People seen tucked into his waistband. The officers took this from him. young in the then emerged, house The officers were not at all were ordered to come out and four women one with a inside, child. people they that no if certain more were house; “Well, explained, were armed. Officers my entered the Finn for reason officer entering safety myself towas insure the of and other officers in the that immediate building being building, area. This a two-story being apparent used for purpose the that was, being it and occupied people, organization, of militant members a militant only was there, reasonable for to be and people me in fear assume that there were other still that and did location contain arms and ammunition.” A room at the of stairway bottom the was first empty entered was found-to be of and, people. Upstairs, people again, rooms were searched for no one was Howev- found. er, gun clip (subjects its of suppress) plain top the motion to were seen in view table, (also motion). of a as shown in photograph in the involved Officer Finn testi- saw; fied on any cross-examination that he did not know of persons he from Clark, officers; of conduct Pratt and he they believed intended to attack the fearful”; “previous organization occurrences with this very although made me he any did not and what of persons, know many “I know Party members the Black Panther they testified, general, capable, doing.” are In was persons he fearful of organization. in police house, He believed that the women who came out after the order, were in a “conspiracy against involved ADW commit another militant organization.” unreasonable, A prima warrantless search requiring facie prosecution justify to 478 P.2d (Horack it. v. Superior (1970) Court 3 Cal.3d Cal.Rptr. [91 1]; People (1963) v. Haven 59 Cal.2d Cal.Rptr. 927].) 381 P.2d De- [31 fendant contends police they bound seek and to obtain a warrant and did so, not do theory rendering entry their into disagree. the house unreasonable. We Defendant’s warrant, is that some gone of the officers leaving could have other officers in place prevent entry into or exit from the retrospect, establishment. In perhaps, the this, officers could have done but not reasonably appear it did so to the officers whose presence had there suspected become known to occupants far house. So as knew, militant, the there inside; indeed, officers dangerous persons armed and remained testimony sought that officers protection against weapons concealment might which be fired from inside. To demand expose possible that an officer himself to warrant, go fire in order to secure under these circumstances seems unreason- able, only but, departing also, not as to any remaining. officers as to officers Entry True, into the house without a entry warrant was not unreasonable. not justified being persons incident arrest the two in the Chevrolet several

910 Likewise, entry, inas- justify not did of Clark and defendant away. the arrest blocks much as However, the house. from the interior of place a remote they were arrested at been a emergency, i.e.: there had entry double-murder; immediate, appear justified circumstances does was more than prospect; there retaliation was violent planning remaining inside the house were any persons ground to believe that reasonable retaliatory reasonably prevent this im- required Quick by police was action. action (1971) 6 People v. Block police properly. acted pending violence. We conclude 281, factually distinguishable, ex- 961], although Cal.Rptr. 499 P.2d Cal.3d 239 [103 case, People v. as does reasoning applicable present presses which is 289, 290, 289], Cal.Rptr. P.2d Al- (1973) 508 9 Cal.3d 305-306 Sommerhalder [107 here, could they to believe this though occur; actually officers had reason no one shot at the weapons told being transported they had been they weapons were and knew there; against planned and also they told “US" stored had been retaliation inapplicable un- against Code section 844 planned Angeles police Los officers. Penal der the circumstances. in plain a It was as the result of pistol The was not discovered in the house search. (1972) Cal.Rptr. 497 (Dillon sight. Superior Court Cal.3d v. [102 recognize no law 505].) justified? We only question is: was its seizure P.2d Code, (Pen. 12026.) A his home. prevents possessing pistol loaded person § from sense, illegal example, narcotics are. for pistol is not “contraband” in the same Here, however, persons appeared who when reasonably believed the police officers conspired any remaining had to commit as- persons inside ordered out of the house Code, (Pen. 182) officers’ deadly felony committed in the weapon—a sault with a § deadly weap- committed with presence. expected as assault was to be Inasmuch such ons, any persons If were in the pistol photographing and its were lawful. seizure of the house, pistol. access to the foolhardy permit for the officers to them it would have been denying suppress properly evidence was within the The order defendant’s motion to legal court’s discretion. IV. that Barbara Contention Defendant's Reed’s In-court Identification of Inherently Improbable, Was Defendant Depriving Trial Fair Defendant of gave testimony she testimony jury parallels Reed’s before the outside of Mrs. court, presence, positively She identified defendant de- already their summarized. men, as she had before. In scribing addition, approximately of the two him as the shorter busy, p.m. night of December she was she testified that about 8 cards, waiting addressing for her husband to arrive. hobby in her store Christmas closing man entered the store. She walked It was near time. Defendant and another a doll had materials with which to build

over to serve them. Defendant asked if she just moving her husband were for wife she said she did not as she and house altogether, five to seven minutes premises. The men were in the store about into the door, turning sign “open” so as went Reed closed and locked the then outside. Mrs. again, two men stand- to read ing just she heard voices outside and observéd the “closed.” Soon gun; shorter man rattled the taller man had a outside the door. The said, immediately went the rear of the store in- us in.” She toward doorknob and tending “Let departed. police but the two men telephone night approxi- Mrs. Reed’s husband testified that he drove toward the store that mately signal nearest to it. p.m. stopped a traffic located at the intersection there, shop’s Negroes shaking the handle of the door. stopped While he observed two

911 so, on, and, hurry- Negroes circling doing while saw the same two He the block drove again. did ing turning parking into a lot. He not see them along the street and men, jack- identify of the one of them wore a “safari” Although he could not either two et, doorway of he had in the which fact he the men were the same seen from concluded hobby store. wife went to night of and his Kenneth Olsen testified that the December with an- p.m. play about 8 to tennis Park tennis in Santa Monica at the Lincoln courts when they else at the courts couple expected whom to meet there. No one was other (It of the tennis hobby was the is about four blocks south they stipulated arrived. store lights on. Two light it turned the court They put a coin in the meter there and courts. .38 caliber snub- Negroes, pistol armed a .45 caliber automatic with a male nose with revolver, up put to up, pointed pistols the at them and told them police walked hands, you.” positively demanding money going “or to burn Olsen their their we’re Ol- men. These men told the defendant in court as one the two two identified Pratt surface, containing purse wallet lie down on the court took from them a sens to gate They then fired their money and started out of the tennis court. turned and the bullets; was five times his wife also pistols supine at the Olsens. Mr. Olsen struck left, having minutes. several two men then been there about five was struck times. The get died about help. hospital went to His wife in the Both Olsens conscious. Olsen (See 1.) days photographs the fn. 10-11 after assault. Olsen thereafter shown attending lineups. police the on a number of occasions also inherently improbable Although defendant evidence was contends identification reason, disregarded testimony strike the was made. and should be for that no motion to ground of objection relevancy was made trial court to nor was it made a No in the its any motion for not asked trial Accordingly, defendant’s court action and determine if new trial. we are to review rulings We are find that the were erroneous. asked to inherently improbable evidence was as to merit no credence. We have reviewed all so relating improbable evidence to it was so identification have concluded not law, require, disregarded. as a matter that it be V. Contention the Court Had a Defendant’s Duty, Duty, and Failed in Its to Instruct Jury, Eyewitness Sua Sponte, That Testimony Be Should Identification Viewed With Caution 1096a,3 that, argues language Code whenever despite Defendant of Penal section outlining doubt justifiably specific an area of it requests defendant an instruction (1967) People given upon v. Roberts 256 proper must be in a case. Defendant relies “However, 493): (p. wherein stated has Cal.App.2d Cal.Rptr. 488 the court [64 70] points up instruction which that where reasonable doubt been held an additional Code, 1096a) (notwithstanding theory requested, defense is it is error Pen. of the § case, although requested, give In no instruction defendant refuse to it.” our such jury. duty prepare trial and read such instruction would make it the court’s instruct, many requiring sponte, cases on "the cites us a court to sua Defendant general (see, e.g. People by the evidence” principles of law relevant to the issues raised (1970) 463 and defen- Cal.Rptr. v. P.2d Martin Cal.3d 390] St. [86 testimony, coupled improbability dant contends that the inherent of the identification witnesses, How- testimony requirement. an instruction the alibi of his made such jury may court read to jury, section “In charging 3 PenalCode 1096a reads: code, subject presumption

section 1096 of this of no further instruction given.” defining doubt be innocence reasonable need ever, subjected although it is view the to the usual testimony, our identification cross-examination, not, positive. on It as defen- attack dant nevertheless was clear and was claims, “general principle” testimony a in this case that identification was the suspect. If was re- upon defendant had desired such an instruction it incumbent him to quest it. does not and defendant’s contention in this Its absence create reversible error is respect rejected.

VI. That .45 Caliber Contention the Defendant’s Huggins' Automatic Pistol Found at House and Was Not Connected With Was Defendant Irrelevant, Its Admission Into Evidence

Being Prejudicial pistol, there no evidence that the .45 caliber automatic seen and, Defendant contends was gun; Century by police, on the table at 806 the his Boulevard and seized was therefore, comparisons cartridges test in it shell evidence of ballistic between fired trial, casings At and bullets found at tennis court should have been excluded. the the objection a had People defendant voiced similar and was overruled after the made proof. offer of He overruling objection prejudicially was erroneous. of his Defendant contends the goes only to Code section 1538.5 correctly points out a motion made under Penal seizure, objected have so that he need not earlier of a search and claimed unlawfulness on ground the irrelevance. claimed claims, If, gun have been ad- defendant the should not We examine the evidence. mitted, arguing prejudiced by ruling, the defendant may we ask gun, defendant was if that, If lat- support his conviction? the was insufficient to absent the the evidence ground of arguing, professed then abandonment of the defendant is ter is what (See 2.) may, con- way. that as it we in the fn. Be insufficient evidence seems stand drawing the the justify evidence to was sufficient circumstantial clude there gun was used defendant. inference that the one 1968, 18, Thus, night at 8:15 of December testified that on Mitchell Lachman A he heard shots couple short time thereafter p.m., he a enter the tennis courts. saw Negro very fast courts and men run from tennis “youthful” two fired observed automobile, sped away. He did not top, a which a red with white enter dark convertible dark plates did that its license had license number but observe notice numerals on a autombile’s background. plates were North white He testified that these similar shown to him plates which were admitted into evidence and year for Carolina court, in the photo- to one shown to him appearance was similar and that the car man, he had seen that he saw the whom graphs, received in evidence. He testified also female, holding courts his head and trot walking into courts with a leave the earlier into the res- street. Lachman followed him the Broken Drum restaurant across the into taurant and also again. the woman to the tennis courts where saw back went 18, night courts of December went to the tennis Police officer Plasse testified he there, 1968, spent lying blood recovered observed Olsen saw considerable Mrs. courts, “slugs” (i.e., bullets) un- recovering from the surface casings shell derneath and on also near Mrs. Olsen. 1969, 12, April when he stopped on Higgins he had defendant Police officer testified top equipped with a a white convertible driving red Pontiac automobile with states of California and plate. stipulated that: records license It was California purchased Pratt had Pontiac showed that on October North Carolina Carolina, being assigned North Carolina license automobile in North convertible Septem- it on body top; a red and a white entered California plate; the automobile had 1968; plates license for the car and new on March California issued ber plates photographic that a again September stipulated 1969. It further were issued stipulated It 11 and 12 showed the same car. was further exhibits Nos. Olsen, casings slug together spent removed from Mrs. shell found at Plasse, Ange- police laboratory of Los scene officer were delivered to the crime police department. les 17, 1969, January Huggins “Bunchy" On and he shot killed at John Carter were and UCLA; Lucy day to or West police officer testified that was sent that 806 810 Cen- tury wagon, appears photographic Boulevard. There he saw a Pontiac station which in ground Nos. and sprawled exhibits and there he first saw defendant Pratt on the passenger people on the side of that vehicle. He asked Pratt if there were in the house answered, guns and if there were and “Yes” both questions. there Pratt to Police of- date, that, ficer Finn testified loaded .45 caliber automatic on that same he entered the house where he observed the pistol lying top clip. a table next a loaded Butler, stylist, Julius a hair testified that he became a member the Black Panthers Pratt, early in the “rank” of was bodyguard “Bunchy,” holding and knew defendant who was a (Pratt “Deputy “lieutenant." became a Minister Defense" after Carter killed.) usually Defendant Pratt was called “Gerónimo” his fellow Black Pan- night thers. On the “going December Pratt told he Butler out on a Negro, mission" and “Tyrone,” introduced Butler another who was taller than Pratt. night, Butler midnight. next saw Pratt later on that after Pratt was nervous. He told had Butler he shot people some Santa Monica but didn’t know if he had killed them. Butler read a newspaper shooting account of day. in Santa Monica the next Later Pratt, day that same was he saw newspaper defendant showed him the and said Pratt that night what he told had him about the response questions before. In to Butler’s car, Pratt said his which Butler as red described Pontiac top, convertible with a white out,” was “hid that he was one people Tyrone who had shot the “couldn’t shoot” and he destroyed gun; had the barrel of the say Butler testified Pratt did what not gun on, kind of he used “usually but that Pratt carried .45a automatic.” Later Butler newspaper told Pratt that a reported gun article .45a caliber had been used. Pratt re- plied that he wasn’t disposed gun worried as had barrel. Butler testified that several, many, but not other members of Black Panthers carried .45 caliber auto- pistols. matic Wolfcr, that, DeWayne expert, ballistics comparing cartridges testified on at test courts, fired in the casings .45 caliber automatic with the found the tennis his opinion both gun, were fired from only gun. the same from that As bullets however, “slugs,” them, or he could fully not leading match striation marks on him to gun conclude either that sively changed gun barrel had been or the had been fired exces- firing since its on the tennis courts. evidence, foregoing We think the summarized judg- as it must be so as to favor the ment, adequate justify all necessary inferences to establish that defendant used the .45 caliber pistol Century automatic found at the West shooting Boulevard address in the Olsens. VII. “Prejudicial Contention That a Defendant's Atmosphere" Prejudiced Jury Deprived Him a Fair Trial Defendant insists that “outside influences” precluded jury acting fairly, from ar-

guing “repressive atmosphere” surrounded the trial. Defendant cites us to no Indeed, alleged situation. of such requested a mistrial because wherein he instance brief, the court merely requested counsel defense mentioned in his

on the one occasion action, so, leaving what further speculate us to jury the court did to admonish the argues in florid and brief Although defendant’s any, in mind. if imaginative defendant now has the'ju- upon effect possible camp” and about an “armed terms about then, then, shortly before trials alleged reports of othfer criminal news rors of reject defendant’s contention. appears. We progress no record of such Contention That Court VIII. Defendant’s Evidence, to Rulings on Made Erroneous Prejudice His the house on testimony, regarding presence at police Defendant contends Boulevard, only toward objection and tended over his Century was admitted West disagree reject argument. “guilt by We

proof of association.” testimony objection, admitting, over his erred in He contends the trial court further Rice, friend, envelope con- police to a officer regarding taining delivery of letter Butler’s testified Butler told my death.” Rice only in case of opened which said “To be content. evidence of the letter’s “going There was no he he was to be killed.” him felt falling Code section by as within Evidence testimony was admitted the court The (a)(2). subdivision was, not, we con- ruling we need not decide since Whether the court’s or was error any miscarriage justice resulted from the clude shown of defendant has not Const, VI, 13; Code, 353). (Cal. testimony’s Evid. admission art. § § IX. That the Court’s Contention Defendant’s Denial His Motion a New Trial Was of an Abuse Discretion Its of grant a new trial required was his motion for Defendant contends the trial court testimony tend to expected would because he discovered two new witnesses whose had witnesses, Kenneth Olsen. testimony two Julius Butler and impeach We have reviewed the record in this prosecution not, did as a respect disagree. The trial court law, its matter of abuse discretion. X. the Trial Court Contention Defendant’s Sentencing Him Failed to Its Discretion in Use age crimes argument years 23 when the Defendant’s here is that he was under (although admittedly years old at he were committed on December the time sentenced) refusing to exercise the discretion and the court erred in given by to it Penal Code section 1202b.4 sentencing attorney The asked the court consider record shows that defendant’s section, against use of the prosecutor argued but the pursuant defendant to this code any proceeding in which defendant is states: “In criminal 4 PenalCode section 1202b custody of the Director felony or felonies and committed convicted of offenses, was, Corrections, or offense or time of commission of the if defendant at the resulted, age of 23 proceeding under the apprehension from which the criminal affecting provision fixing law or may, notwithstanding any other years, the court offenses, imprisonment for specify the minimum term of penalty for the offense apply six months. This section does not cumulatively shall be the offense or the offenses by any punishable death.” offense section, carry pun- life or death “offenses which contending that the section excluded think, attorneys], of defendant’s “I Mr. Cochran The court commented ishment.” [one in this is concerned well tied as far as sentence pretty that the court’s hands are matter.” 880], (1972) our Cal.Rptr. 493 P.2d People In v. Anderson 6 Cal.3d [100 February had decided that California’s Supreme year, Court earlier that appears Constitution. It penalty statute was unconstitutional under California’s death by imprisonment life degree punishable first is also from the Penal Code that (Pen. murder Code, Code, 3046), (Pen. 190). years seven parole eligibility There is after § § Code, (Pen. 12022.5) years’ minimum to the adds another five but use of a firearm § years just Accordingly, had seen fit to fix a cumula- seven mentioned. if the trial court 1202b, months, by section defendant tive minimum term of six as allowed Penal Code could have benefited from it. wording expressly The trial court did not state that its hands were tied because section, While, although may of the code be inferred. under the evidence estab- case, judge lished the verdicts in this we find it difficult to conceive that trial section, granted by would exercise the selves into the trial we cannot discretion code substitute our- judge’s robes. affirmed; judgment sentencing, of conviction is as to the the case is reversed and remanded, being giving the trial court directed to resentence defendant due consider- given prerogative ation to the to it Penal Code section 1202b. NOT FOR PUBLICATION J., (Bernard), Acting

Jefferson Kingsley, P. concurred.

APPENDIX C UNITED STATES DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF INVESTIGATION

WASHINGTON, D.C. 20535 10, 1980

March McCloskey, Honorable Paul N. Jr. Representatives House of Washington, D. C. 20515 Congressman

Dear McCloskey: 23, 1980, meeting January you copies At our asked for of certain documents. In addition, you requested permission inspect by to all FBI files reviewed our Pratt Task Force, Finally, you employees. and to interview certain current and former Bureau summary January briefing. responds your asked This letter prepare us to of the requests. First, following documents: you asked for the

* setting that he Butler’s denial transcript forth portion Pratt trial of the FBI; worked * probationary operative definitions setting forth the manuals portions FB.1 1969-1972; during informant racial extremist * 23, 1971, Party Panther in the Black January article from the quotation during meeting (we not have do .you our (BPP) Magazine was read magazine); copies * Rice of Dwaine interview August report on the the FD-302 [m'c] Agents. FBI documents, report on Dwaine except for the FD-302 of these [s/c] I have enclosed all Privacy rights under the may vilate Mr. Rice’s of that document Since the release Rice. Act, er, document, howev- We have reviewed the you at this time. furnish it we cannot allegations. support Mr. Rice’s does not were reviewed our Next, inspect all of the files authority to you asked for Angeles Los and San were in- Headquarters (thousands pages, located Task Force Agents who Offices), and former interview all current and to Francisco Field (COINTELPRO). counterintelligence program volved in the Pratt case interest, pre- policy long-standing Department Justice your Although appreciate I of formal they are the result requests unless broad such cludes consideration Committee action. Pratt Task special members of our request, I asked the Finally, response your you January disclosed to synopsis of the material written prepare Force to synopsis. briefing. copy I of that have enclosed Sincerely, H. Webster William /s/ Director (4) Enclosures - 4) (Enclosures Don Edwards 1 Honorable . - - (Enclosures 4) Preyer Richardson 1 Honorable 4) (Enclosures 1 Counsel Responsibility of Professional Office - 4) (Enclosures Attorney General 1 Assistant Legislative Affairs Office of - 4) (Enclosures Attorney General 1 Assistant Division Criminal JUSTICE STATES DEPARTMENT OF

UNITED OF INVESTIGATION FEDERAL BUREAU WASHINGTON, D.C. 20535

Synopsis inquiry Of Pratt

History Task Force 6, 1979, April Congressman On McCloskey expressing wrote to Director an in- Pratt,

terest in the case of Elmer BPP who was “Gerónimo” former member convicted of a 1968 murder. His letter asked the investigation FBI Director “institute internal any Pratt case to determine whether there is evidence in the files to possibility guilt?” indicate the Pratt’s innocence doubt as Pratt’s Congressman Pursuant to McCloskey’s request, a search for records was conducted FBIHQ, C., Washington, Angeles D. and at the Los and San Francisco Field Of- fices. The regular search followed searching FBI procedures, rely very large which to a extent on a card index. The records retrieved this search and information received Agents, from Special certain 12, 1979, constituted the upon factual basis a July which Congressman letter to McCloskey prepared. good-faith This letter was a effort to respond to his inquiry upon based the information received as a result of our normal re- process. trieval 21, 1979, In September a letter dated Congressman expressed McCloskey dissatis- 12, 1979, July faction with letter.1 Director him September met with agreed to take newa look at impact (the of COINTELPRO counter-intelli- gence program) on the Accordingly, Pratt case. the Director ordered the formation aof special Task Force. Methodology Task Force FBIHQ The Task relating Force reviewed all files to Elmer Pratt and his known as-

sociates to determine if FBI concerning had information Pratt’s trial and conviction for the “Tennis Court Murder” that should have been made available court. This file review far procedures. exceeded normal file Ordinarily, review as in the the Task Here, inquiry, however, initial Pratt only a search covers indexed references. reviewed, page-by-page, line-by-line, Force may all files that have contained relevant information, even if there were no indexed references to Pratt. A file similar review conducted Angeles the Task Force at San Francisco and Los Field In Offices. addition, the Angeles County Task Force reviewed the prosecutor’s Los files transcript trial in the Pratt case. Leading Events to Conviction On December Dr. Kenneth Olson and his wife Caroline were robbed and Moiiica, California,

shot on a Santa tennis court. Caroline Olson died as result of the wounds she received. 1 The pages FBI released thousands of of documents to Pratt as a of result a Freedom request of Information Act Congressman he filed 1976. McCloskey’s dissatisfaction apparently reading based on of some of those documents. his BPP, were of the 1969, Huggins, members and John Alprentice Carter January In of at the UCLA Union meeting the Black Student attending while shot and killed Huggins’ house. The Afterwards, at John congregated BPP members of the

campus. Huggins’ home and of the (LAPD) a search conducted Department Angeles Police Los result, many of the arrested explosives. As a LAPD weapons and found numerous persons many who had others Pratt) and interviewed (including house found inside the Butler). (including congregated outside been maximum FBI to “use the Attorney General from the view of the mandate In disorders,2 of the FBI Angeles Office the Los individuals investigation of civil in the resources” Huggins’ at the present investigation on each of the opened a substantive case, investigated Office the Field type in this procedure As was the standard house. (FBIHQ) authority to interview Bureau background secured subject’s and then each uncooperative denied 1969, He was was interviewed. Pratt April him. In BPP affiliation. 1969, being FBIHQ After ad- August of authorized an interview of Julius Butler. In sign rights, refusing to a waiver of those he was interviewed. rights and vised of his resignation stated that on reasons from the BPP. He further Butler stated the resigning ler’s) for him, BPP, (But- telling Pratt threatened him that his from the “Gerónimo” danger. hung up phone he on Pratt and was not afraid was in Butler said life (Butler) put that would of the BPP “in had written-a letter certain members because the friend of gas said letter was the hands of an unnamed his. chamber.” He Rice, Angeles had a friend named Dwaine a Commu- Los FBI determined Butler [szc] LAPD, nity envelope Officer for the who had received an from Butler Relations Agents Ange- containing opened in of Butler’s death. of oúr Los a letter to be the event August of 1969. He admitted he had the letter but did les Division interviewed Rice in not turn copy The FBI did not receive a of the letter until November over the FBI. 1970, Angeles copy opened LAPD it and sent a to our Los Field Office. when the investiga- Flight to subject of an FBI Unlawful Avoid Prosecution Pratt became the 1970, charges on appear because of his failure to in local court September tion in 8, stemming LAPD on December 1969. from BPP shootout with the Angeles, Los local sealed indictment was returned at Cali- On December fornia, This charging with the “Tennis Court Murder.” indictment Pratt investigation. apparently based on Butler’s letter additional Dallas, Texas, Agents in on on the Un- Pratt was arrested FBI December charge. Flight lawful to Avoid Prosecution fol- based on the apparently Court Pratt’s conviction the “Tennis Murder” lowing evidence: * husband, Olson, during robbery, identified who was shot The victim’s Dr. as the murderer. Pratt * of the courts where shopkeeper vicinity testified Pratt was in the tennis A occurred, murder, gun. with a the murder at the time Attorney September from General to the FBI Director 2 Memorandum quoted Study Operations, Report, in Select Committee to Governmental Final Book Supplementary Intelligence Rights Report III: Americans, Detailed Activities and Staff 94-755, (1976) Cong., S.Rep. 94th 2d Sess. 492 Church Com [hereinafter Report}. mittee * vehicle, color, make, model, fitting description A vehicle Pratt’s as to plates vicinity of color of out-of-state license was seen in the the tennis courts at the time of the murder. * committing Julius Butler testified that Pratt admitted the murder.

* analysis casings LAPD firearms matched shell found at the murder scene with a Huggins’ weapon found near Pratt at the time his arrest at John house in January of 1969. * The State’s identification said the clean witnesses murderer was shaven. The de- beard, fense contended that at the time of the murder Pratt had a and it produced a photograph prove point. Polaroid of Pratt with a beard to The expert State countered with an question from who testified that the film in Polaroid photograph supposedly was not made until six months after the taken. Authorities Notification of California On corpus November Pratt filed writ of habeas in California state court.

The Task Force’s review of FBI during pieces files identified three of information uncovered inquiry arguably petition. that are relevant to that Butler, witness, 1. primary prosecution Pratt contended that Julius was unrelia- informant, ble he was an FBI and that Pratt was denied a fair trial because jury because the relationship was not aware of Butler’s with the FBI. The delineating Task Force found documents Butler’s connection with the FBI. 2. Pratt asserted that the FBI knew he did not commit the murder because he was under constant FBI surveillance at the time. The Task Force found docu- containing illegal ments apparently wiretap information derived from an local indicating days (but of) day Pratt’s whereabouts a few after not on the murder. informant(s) may 3. The Task Force found FBI been indications that an have present meetings attorneys legal at which Pratt’s and associates discussed strategy. defense Responsibility These of Professional promptly matters were discussed with the Office (DOJ). Department’s Department and the Division of the of Justice The Of- Criminal Responsibility did not consider this a matter for their attention. fice of Professional advised, review, prosecuting The Criminal Division after that California authorities recently Pratt matter should be located the FBI. Two advised information Agents Attorney Angeles gave briefings FBI and a DOJ traveled oral all to Los on Ordin, 11, 1979; Attorney, December three issues to Andrea United States on John 12, 1979; Kamp, Angeles Attorney, Van De Los District on December and Michael Nash, General, Deputy Attorney briefings Each of State December 1979. these given after the Bureau received assurances that the material disclosed would re- court). (except main confidential for in camera disclosures to the California handling Attorney California State Office advised that it was Pratt’s habeas General’s briefing, the FBI it new information contained in corpus petition, and in view of the 17, 1979, Michael Nash On December decide on a course action. would need time to contacted the FBI which the request for all FBI documents on and made a formal based; Attorney Office briefing the California State General’s he indicated that was informed petition despite the new information. Mr. Nash planned oppose to Pratt’s classified, they but may because are these not be available that some of documents Judge. objection inspection no camera the documents the FBI had to an in documents, including (40) forty FBI Subsequently, Mr. Nash was told that certain Butler, (2) indicating pages setting with and two pages Pratt’s whereabouts in late FBI contacts Julius forth December, 1968, him. In order could be made available to informants, summary agreed con- protect any Mr. Nash that a to the identities of FBI provided These documents were cerning camp information would suffice. the defense review, hearing corpus on prior Mr. for to Pratt’s habeas Nash and the California court petition. January Following hearing, the court denied Mr. Pratt’s 1980. Julius Butler FBI in- McCloskey that Julius Butler an Congressman maintain Both Pratt and

formant, testimony, denied a incriminating and that Pratt was this taints Butler’s relationship to the FBI. The Task of Butler’s jury was not aware fair trial because “probationary as informant.”3 a time Butler was evaluated a Force determined that for paid otherwise com- important, that the Bureau neither nor FBI files establish More against anyone. Butler’s testifying providing information about pensated Butler for Sergeant LA incriminating Rice of the PD Butler Pratt was delivered letter before FBI, nothing indicating that the FBI had to do with Butler’s had contact testimony in Pratt trial. De- law enforcement informant not new. Finally, was a is Butler assertion that he Angeles Deputy before was a Sheriffs fense that Butler Los counsel was aware Butler was an FBI informant. about whether Julius 3 Therehas been some confusion dictionary the broad light of contrast between is understandable in This confusion usage These se precise of that term. and the law enforcement of informant definition from the not divert attention differences—briefly addressed below—should mantic primary issue, jury was to new because the un whether Pratt is entitled trial which is FBI. supplied that Butler information aware gives (1977) “one who Dictionary defines “informant” as Collegiate Webster’s New course, be an in- definition Butler would considered Of under that broad information.” formant, to the FBI. supplied he information for however, Manuals, merely gives who not mean “one infor- does FBI “informant” In Rather, gives person “who information” is one of several kinds of “informant” mation.” actively engaged in obtain- persons The “informant” label refers reliable to the FBI. assigned are furnishing Traditionally, the FBI. “informants” ing information to numbers; assigned a number or they symbol not symbol ordinarily, paid. Butler was are receives, a con- regularly “informant.” The FBI paid, not considered an and was basis, who are not considered informants. from individuals fidential information (racial) “probationary infor- that Butler was considered Bureau documents show informant, being whose person but cultivated as mant.” This term refers to yet reliability willingness cooperate are not established. Therefore, dictionary because he definition of informant within the while Butler falls information, defined in FBI Manuals. he was not an “informant” supplied Again, is- however, particularly important. The crucial is not question this definitional Butler jury was not told that fair trial because the was denied a sue is whether Pratt above, court considered As the California the FBI. noted supplied information to petition) rejected it. (in corpus his habeas claim on this issue Pratt’s BPP, .with whether he “severed ties.. joined he asked Butler so at the trial [his] worked leaving Department SherifFs law and whether “since [he] enforcement” ties with the SherifFs had severed his responded CIA?”4 that he the FBI or the Butler motion, In “working” or the the new trial Department, he for the FBI CIA. and denied issue, contending paid infor- again that Butler was LAPD defense raised counsel was denied. And still conspiracy against Pratt. The motion part mant and of a LAPD alleged was again, corpus defense counsel that Pratt petition, recent in Pratt’s habeas reviewing pertinent role as an informant. After denied a fair trial because of Butler’s documents, petition. FBI the court denied Pratt’s Wiretap Local murder, Pratt FBI at the of the and that contends was under surveillance time show was not at of the Pratt was under Bureau records that he the scene crime. not However,

surveillance whereabouts “Gerónimo” arrived in the Bureau. FBI records include information about Pratt’s illegal apparently wiretap. on an These records indicate that based local 20, 1968, on December was still there on December Oakland Thus, hiding FBI place and was from someone.5 while records Pratt in the Oakland December, 1968, they area in late do not an him on establish alibi for December 1968.6 These records were previously not they located because were not Pratt indexed to at fact, FBIHQ. appears In that at the time the records were made our San Francisco Division identity was unaware of Pratt’s as “Gerónimo.” Meetings Defense 1970’s, In the late 1960’s and early the FBI conducted a substantive investigation of part investigation, BPP. As of this reported number informants on activities including BPP members Pratt close associates. The Task Force discovered that informant(s)

on a few occasions an may FBI have present meetings been in which following subjects were discussed: * unhappiness Pratt’s one lawyers; of his

* Texas; alleged problems with the FBI’s arrest Pratt in * Pratt’s interest finding testify witnesses grudge that Butler had a who.would him; against * possible approaches trial, to the defense possible summation in the Pratt convicted; strategies in appeal an if Pratt were * the effectiveness testimony of the of certain trial witnesses. significance First, discovery placed must be in perspective. the Task Force was informant(s) unable determine whether the FBI was actually present at Second,

these meetings or merely about heard the discussions later. the records indicate attorneys Third, were actually present meetings at these only on a few occasions. quotation 4This is found page on the enclosed transcript. trial 5These evening records also “Bobby indicate that of December Seale going stated he pick up people, including go some private Kathleen and to” a residence. 6The Angeles travel time between Los only and Oakland is a few hours. meetings strategy was at which reports refer to while a number of important, and most of the strat- discussed, on the nature exception—elaborate not—with one reports do discussed. The one strategy was merely topic of defense reports state that egy. The grudge testify had a that Butler report wanted witnesses exception is the that Pratt case, him, was based on report no to believe that against there is reason in the records that the Finally, indication involving attorney. there no meeting otherwise) (to un- prosecutors the local any of this information Bureau disseminated December, briefings authorities. of California til the may been have suggested possibility that FBI informants findings Because these discussed, however, Bureau im- strategy meetings at which defense involved in mediately California authorities.7 Department appropriate Justice and notified authorities, turn, hearing corpus pe- Pratt’s habeas the court in notified

The California information, court, reviewing rejected petition. Pratt’s this tition. The after COINTELPRO FBI’s counterin target and a victim of the attorneys “Pratt was Pratt’s assert that COINTELPRO, he denied a fair telligence program,”8 that as result and designed any action to in no evidence of COINTELPRO trial. The Task Force found attorneys’ cited any evidence—Pratt’s fluence Pratt’s trial. Nor is there Instead, none—establishing anyone else.9 Pratt’s attor Bureau framed Pratt that the (as argue attempt from other BPP members10 neys part membership” the Bureau’s to alienate Pratt past suspicion among the current and general to “foment mistrust and effort attorneys 11) at his trial.”12 Pratt’s “directly led to the loss of witnesses however, testifying, produce any who were dissuaded from

are unable to their contention and leaders testified was witnesses transcript, BPP members which establishes that belied the trial event, wholly any speculative contention of Pratt. In this behalf corpus. presented petition that denied Pratt’s for habeas to the California court n Miscellaneous 1969, 2, typed report meeting encourage 1. A June on Pratt’s efforts at a BPP against members to retaliate top lius “US” contains the handwritten notation “Julius” at the page. Congressman McCloskey of the This led to the mistaken conclusion that Ju- meeting Butler the source of the referred was held at information. 1969, early page marked on the for Julius Butler’s residence his name was in-

dexing purposes. was not the source information But Julius Butler contained report. Cochran, attorney, now an Assistant District 2. Johnnie Pratt’s former defense Angeles believes Pratt is innocent of Attorney County, represented has that he Los views, however, diametrically opposed are the “tennis murder. Mr. Cochran’s court” County Attorney’s Office. District At- Angeles District opinion the official of the Los General, 16, 7Letter, Attorney January 1980. Acting to California Director Corpus, 46. 8Petition for Habeas “Special Review Committee” the DOJ’s Report describes Committee 9The Church Report, victims who were harmed. Church Committee notify assigned to COINTELPRO 2, notify 76, that it did not Pratt. advised the Task Force supra. DOJ at fn. cited Pratt, 10See, 28, Airtel, 1970); (January Report LA cover 2 e.g., LA to Director 26, 1970). (June page C Airtel, Director, quoted 47. January at Id. LA to Corpus, 12Petition for Habeas 49. letter to the State in a December

torney Kamp Van De stated John letter): Cochran’s (responding to Community Release Board California considering professionals are disconcerting apparently competent to me that It is fur- they possess information not innocence... unless possibility of Mr. Pratt’s me, office, assigned Attorney County Deputy District or the Marin nished to to Mr. Pratt’s hearing. Coch- not in Mr. that this office does concur closing, I wish to make it clear In contrary, we are of the firm belief On the personal views in this matter. ran’s should not be released.- Mr. Pratt Task Force Conclusions exculpate Pratt of the any did uncover information that tends The Task Force not the FBI had Pratt under sur- “Tennis Murder.” It found no indication that Court day Nor did it find on December of the murder.

veillance Angeles at time of the supporting that he was not in Los information murder. Pratt’s alibi argument his trial Finally, it found no evidence to corroborate Pratt’s were the of COINTELPRO. conviction result APPENDIX D Not to Be Published Dist., 22, No. Apr. 21638. Second Div. One. [Crim. 1974.] PEOPLE, THE A-253348 Respondent, (Super. Plaintiff and v. Ct. Nos. consolidated with A-253349 A-254028) and STAFFORD, Appellants. ELMER G. PRATT and WILLIE Defendants and judgments Angeles Superior County. George from of the Court of Los M. APPEALS Dell, Judge. Affirmed. Zinman, Marvin appointment by Appeal, Appellant under the Court of for Elmer G. Pratt. Silverman, Albert appointment by Appeal, D. under the Court of for Appellant Wil- lie Stafford. General, Hinz, Jr., Younger, Attorney Attorney Evelle J. Edward A. Chief Assistant General, James, General, Attorney William E. Assistant Norman H. Sokolow and General, Schwab, Deputy Attorneys J. Respondent. Howard Opinion LILLIE, guilty of con- jury found Pratt J.—Following protracted trial a Acting P. gun), (possession of machine 12303 12220

spiracy to Code sections violate Penal

924 [bombs, grenades tracers]) (possession 452 devices and and destructive and Stafford and (possession of firebombs); guilty conspiracy others not here involved to violate devices) (possession 452 (possession 12303 Code sections Penal destructive ap- firebombs) charged in count III of a 12-count information. Pratt and Stafford as judgments.1 peal from the warrants, 8, 1969, police search and arrest en Around 5:30 a.m. on December headquarters of the Black Panther Exposition tered the Central Avenue and Boulevard large illegal Party weaponry. suppress and seized a amount of All defendants moved to Code, novo, (Pen. 1538.5). hearing of an de the evidence At the conclusion extensive § Again granted the motions were denied as to all but three items and to them. Pratt challenge ground unlawfully denying police and Stafford entered the the order their motions on the headquarters.2 provision warrant included a “no knock” inserted search magistrate (Parsley correctly improper. Supe which the trial court ruled was v. 934, 192, 1400, (1973) Cal.Rptr. rior Court 9 Cal.3d 940 507 P.2d 55 A.L.R.3d [107 191].)3 entry, compliance As to the the trial court found there was no with Penal Code although headquarters sections 844 and 1531 at either location there was an ficient time at Central Avenue (there attempt comply compliance was no substantial because of insuf warnings in); legality delay between the break and as to the entry, at police complying it found that were excused from with Penal Code section' 1531 existing entry both locations because the circumstances at each at the time of were resistance, police reasonably they physical such as to lead believe would meet with protection necessary knocking. and for their own it was without find suffi to enter We finding exigent cient substantial evidence on support the motion to the trial court’s entry circumstances made police imperative, compliance an immediate with section 788, (1973) 1531 was (People Cal.Rptr. excused. v. Gale 9 Cal.3d 792 511 [108 1204]; (1973) P.2d People v. Lawler Cal.3d Cal.Rptr. 507 P.2d [107 621]; People (1973) Cal.App.3d Cal.Rptr. 293].) v. Waters 359 [106 and their appeal, failed to file a brief on appealed defendants seven of whom 1 Nine Court; 17a, appellants two pursuant to rule California Rules of appeals dismissed remain, Pratt and Stafford. prohibition; were de petitioned 2 Defendants this court for writs of mandate both items, People petition for writ of mandate on which an nied. As to the three filed (1970) (People Superior [Young, Cal.App. et alternative writ issued. v. Court al.] 699].) ordering grant Cal.Rptr. superior 3d 545 In court to set aside its order [91 evidence, ing page items as the court said at 547: suppress the motion to the three petitions prohibition previously “Defendants’ for writs of and mandate have been de by petition particularly nied this court. The for writ of mandate raised the issue of being by police, police unlawful search and seizure had the contention made that the unlawfully against We ruled the conten premises entered the of the defendants. hearing Supreme tion. The Court of this state has now denied to the defendants on unnecessary question in petitions. reopen upon each of these It is therefore that petition. police legally premises.” stant We were on the assume [Italics added.] Appellants appellate have had review of their contention but virtue of Penal Code 1538.5, Code, (m), petitions section subdivision the decisions on the are not res Penal 484, 630, judicata (1972) Cal.Rptr. 492 P.2d (People v. Medina 6 Cal.3d 491-492 [99 (1970) Cal.Rptr. 686]) although People Superior Cal.App.3d v. Court 545 [91 ” judgment (Peo 699], appeal be on from a of conviction.... could “law of case 484, However, (1972) 492.) ple predicate we do not our decision v. Medina 6 Cal.3d appellate on the former writ determinations. follow, contend, appellants and do not 3It does not the inclusion of the “no (Aday provision operated Superior to invalidate the entire warrant. v. knock” (1961) Court Cal.Rptr. 47].) 362 P.2d 55 Cal.2d 797 [13 morning asleep on the of De- testimony occupants were Based on defense that the themselves, argue they identify Pratt and Stafford police did not cember 8 and duties, their entering performance in the that those were officers could not assume and entry. A given upon an official demand they have been time to act should motion, and the testified was had on the lengthy hearing which numerous witnesses relating to activities of Black Panther great body of information evidence shows that a headquarters in latter Exposition Avenue and members and maintenance of the Central section, Los An- conspiracy up to December was amassed criminal November geles officers; by numerous through and surveillance Department, personal observations Police headquarters was a entry on December 8 each it established that at the time mem- and that Black Panther weaponry explosives, manned with and veritable fortess literally police. bers were at war with were aware of extensive up police to December part From the latter of November Exposition being Central Avenue and sandbagging work done at both and barricade sandbags, plywood and heavily barricaded with headquarters—they were Boulevard windows, military fortifica- gun ports and revealed springs were nailed across the bed tions. Police also becoming more were more and knew that Black Panther members police had attempts to assassinate officers antipolice, and several recent militant made; building Panther up; were Black been members were according “coloring tensions with law enforcement officers police who engaged designed to result in confrontation in activities killed; police had seen “pigs” to be propaganda to their literature police officer. ways in which to kill a books" which illustrated for children report- police Various confrontations between and Black Panther members had been ed,4 among them a November incident between Lieutenant Morton and George Young p.m. and Paul Around 1 on November 28 Lieutenant Morton in Redd. Smith, plain headquarters request Lily owner clothes visited Central Avenue at the door, clothing using complaint of a speaker store her Panthers were a loud- next Black her in a loud and offensive manner that could be heard in store and disturbed customers, volume; her opened and to ask them to turn down the he the screen door to business, entered, appeared police what place to be a identified himself as a officer him; Young speak Young picked up seated at a desk and asked to a .45 automatic out"; pistol he would like to talk about the pointed ordering “get it at him him to Redd moved to a corner where picked up shotgun, again Lieutenant Morton identified himself and said he said, loudspeaker; Young “Get out or 1 will shoot” and “Yeah, said, yeah,” holding shotgun; Young Redd then thrust the .45 automatic to- said, eight or I will approaching ward Lieutenant Morton within feet and “Get out shoot”; again Young he purpose he identified himself and stated his but said would shoot; said, shoot, Young whereüpon count to three and counted to “three” he “Don’t it,” (Nov. 28) night police passing headquarters Central Avenue» re- cool and left. That ported they pointing a machine observed Elmer Pratt at a window on the second floor gun pipe early at them. In 1969 Pratt had been arrested twice—one case involved a other, handgun growing killing dynamite, and stick out of a of two Pan- bomb UCLA; causing going get even with them for him to police thers at Pratt told going be handcuffed and was to kill them. place University Police Sta gun police Panthers and took at 4A battle between four tion; Panther, Fitzgerald, highway patrolman a gun an active and a battle between eating Fitzgerald special who was injuries, later shot and killed a officer resulted in his lunch in and Willowbrook; police and over the occurred between Panthers an altercation traffic, police and when followed newspapers which interfered with sale of -Panther gun” and saw they say someone officers seated in their “Get the headquarters them to Central Avenue through heard shotgun; car at a taco holding a the window someone Richards, armed, resulting upon fired in by Pope and both and approached stand were a killed; Armour, Panther, Pope a gun was wounded and battle in which one officer Continuing guard sta- through from latter November December 8 an armed was tioned on the Avenue were seen headquarters; persons roof of Central armed with rifles Exposition headquarters named Walter “Toure” Boulevard been killed in the which had been after Pope gun had in an sev- police attempt who battle with to assassinate Marine, brig Young, eral officers. a had been in the around time for theft Pendleton; weapons guns gun, police from one of was a and Camp taken machine gun headquarters. reported saw a machine at Central Avenue One Williams headquarters had been in- Exposition Boulevard location was a Black Panther and he bombs; shotguns) (handguns, pipe and seen and six side six or seven firearms rifles and sandbags up discus- place with down stairs and had been a fortified and there nearby officers setting up trap police—firing building sion about and a to shoot a to attract headquarters. photograph Panther on the “sniping” then them from A showed a sewing on porch Exposition sandbag; Negro front a later officers saw a male seated porch port headquar- At carrying position. the front a rifle in a arms Central Avenue inside; through persons shotguns ters were and two officers observed with observed Negroes sandbags story four second window with an binoculars male behind in the weapon. automatic wearing (spe- Around 5:30 distinctive “SWAT” a.m. on December officers black regulation bearing team) caps or hats weapons police cial and tactics uniforms and/or badges jackets or police military nue in (Los Angeles Department), police emblems Police and flack vests, headquarters. Ave- Exposition Central Avenue At Central arrived at and they police, were there headquarters Sergeant McGill shouted in a loud voice that “Open the we will force en- response and arrest warrants and to door or search heavily persons inside try”; he had informed the location was barricaded and been enter; time, nothing happened attempt to waited a short violently any would resist he as “very he ordered to batter down the door and quiet,” and it was then the officers voice; just going they did in a loud before over repeated so the announcement in”; “coming they were Sergeant they they did so threshold McGill shouted were walls, guns, gunfire with directions holes in the fire from machine met from six from grenades, building in a pipe and hand Cocktails and bombs thrown from the Molotov hours; through by jet finally police gained entrance the roof a battle lasted five taken, axe; guard including who a lookout were an armed persons Stafford and 11 bombs, grenades, buildings explosives, hand ma- pipe on the roof. Inside of the chine were carbine, shotguns, a guns, gun, fully a loaded Thompson submachine M-14s, rifle, automatic, am- descriptions, firearms of all bolt-action munition, a .45 caliber two bombs, gun guns being making in a various pipe locker materials entry Exposition repaired. teams checked Immediately before December barricaded; command was still Lieutenant Keel at the headquarters post nearby reported and. headquarters Avenue radio with the units at Central communicated gun taking evening 3 a.m. on Decem- place. of the before around knew ber 8 battle locations, had been just going members of the “SWAT” team before all briefed; dangers they expect and warned of the thoroughly they had been told what to reality various were wounded officers probably Expectation would face. became in the battle. requirements section 844 with noncompliance “It is settled that the announcement grounds believe that com- Penal where there are reasonable Code is excusable relative to a headquarters incident officers entered gun-pointing was involved when violation; auto- stopped area four in an officers in the Wilshire Panthers traffic two resulting gun battle in which three Panthers upon who fired them in a mobile in an and he threatened injured; both Pratt was involved altercation killed and to kill the officers calling “pigs” profanity); and Panthers (punctuated them officers killing law officers. attempted to kill or succeeded enforcement various areas had

927 Court, supra, 9 (Parsley Superior arresting v. pliance endanger would the officers. 304, Dumas, 871, 938; 934, (4) Cal.Rptr. 512 P.2d P.2d 878 9 Cal.3d People Cal.3d v. [109 699, 695, Cal.Rptr. (1974) 517 (People Cal.3d 700 1208].)” v. Bennetto 10 [111 613, 826, 589].) (1971) Cal.Rptr. P.2d 4 833 484 1163]; People v. Cal.3d Tribble [94 basis may be on the of information entry excused proposition “The that unannounced effected, infor- entry be when the reaching the locations at which is to received before mation peril would increase his reasonably compliance officer to believe that leads the arrest, v. Court recently Superior in Duke the has been affirmed more frustrate 348, 314, ability 628], police of offi- (1969) Cal.Rptr. 461 P.2d 1 Cal.3d 323 [82 entry is also deciding unannounced rely such information in to effect an prior cers to 18, (1969) Cal.Rptr. 71 28-29 clearly by People Santiago v. De Cal.2d established [76 Thus, 809, requirements 353],... compliance with the announcement 453 P.2d [H] information, previously of obtained may police be excused where officers on the basis scene, they approach particu- occurring aware at the time supported by facts on the are emergency defined entry they that faced with an situation as premises lar in effect are 871, 304, 512 (1973) Cal.Rptr. Cal.3d 878 (People our decisions.” v. Dumas 9 [109 563, 934, 1208]; Parsley (1973) Cal.Rptr. Superior P.2d Court 9 Cal.3d 940 v. [109 611].) P.2d 513 Dumas, People v. upholding In 9 unannounced forcible en supra, Cal.3d an case, however, had try, Supreme information page present police at “In the the Court said 879: only possessed weapons habitually but answered reliable that defendant not They reasonably activity from this that a the door armed with a firearm. could infer deadly prevent ap possibility employ substantial existed he would force in order searched, prehension. they approached As the location to be became aware officers They further could therefore rea no circumstances that would defeat inference. entry they emergency at an and that sonably conclude compliance with the the time of that were faced with substantially per would increase their requirements announcement il. these facts with section does not comply On we hold that officers’ failure 1531 give application exclusionary rise to of the rule.” presented stronger Dumas. fac- The facts here are much than those in The situation ing they they such could the officers the time entered both locations was that danger who reasonably they great personal occupants were in from conclude that violently be- entry, adequate good more than to show a faith would resist their substantially part peril. compliance lief on their sections 1531 would 844 and judicial withholding approval unannounced purposes increase their police The real of “(1) emergency protec- entries in are fourfold: the absence circumstances (2) [citations]; privacy protection tion of the of the individual in his home persons may present premises also be on the where an arrest is made innocent who [ci- ; (3) prevention which are to violent confrontations of situations conducive tation] proper occupant enter his home without notice between individuals who [cita- ; (4) might fearful police injured who be a startled and protection tions] householder.” (Duke (1969) Cal.Rptr. 1 321 Superior v. Court Cal.3d [82 628]; (1971) Cal.Rptr. People King P.2d v. 5 Cal.3d fn. [96 light the ac- 1032].) In the extensive of their manned arsenals and P.2d tivities of appellants down the door and fortifications police, Black their and encounters with Panther members and relations breaking good they hardly can claim in faith-that did not know those entering (assuming they Sergeant quiet did not in the hear McGill enough to be a block early morning three times in a voice loud heard shout duties; acting and it police performance of their official away) were officers in the during imagination beyond believe at some time the en- far reason to stretches they they resisting police entry they did know suing five-hour in which were not battle officers, roof. Panther surrendering only police blew a hole in the Black when the 928 arming barricading against possible police entry and spent premises members weeks occasion, stationed on the roof to just an had an armed lookout

themselves for warn them of such intruders, ready waiting prepared for the officers and were officers; preparation gunfire did their advance careful meet them with ambush gunfire directions from by in attack on officers from six is reflected the immediate and Molotov Cocktails thrown out of the in the walls and the number of bombs holes surprise of and the building during the battle. There was no real element involved daytime accomodating premises, although housing who worked there in the those deadly guard night, private were in no home but an arsenal of kept those who weapons the circumstances defendants uals in their homes” whose who shoot whom at fact place of business in a business area. Under appeared located in what to be a hardly persons” of “innocent or “individ- fall in that class disturbed, security or “fearful householders” should not be they prowlers. believe to be Likewise is Pratt and Stafford’s claim of error in the trial court’s re- without merit Smith, give requested prosecution fusal to their instruction that Melvin main law, witness, accomplice of was an as a matter the submission of the issue to the in the jury.5 granted immunity having part was Until Smith a codefendant taken theory prosecution December the others. The 8 battle and been arrested with of the cooperating police he was a Black Panther after the December 8 battle. judge originally accomplice Thus the trial intended to instruct that Smith was an as a subsequent testimony matter of law but the question Louis Tackwood created “some (1967) jury,” People as to this for the and under v. Hill 66 Cal.2d Cal.Rptr. 536 [58 340, 908], give 426 P.2d did an instruction because it imply not such would that he did witness,6 testimony: not believe Tackwood’s timony Louis Tackwood was a defense and his tes- “accomplice” created a factual conflict as to the status of Smith. Tackwood, informer, paid police testified that he had been advised that Smith had 1969; September been an Sergeant informant least in September 1969 Farwell members, Smith, who, showed him photographs of Black Panther including Farwell him, told was to be his party; “contact” in the he was to infiltrate the Panthers but (and 5At request requested defendants also by People) some instances jury (CALJIC the timony 3.10), instructed on the definition of “accomplice” No. that tes (CALJIC accomplice 3.11), must be corroborated No. what constitutes sufficiency (CALJIC accomplice 3.12), evidence to corroborate an No. that one accomplice may (CALJIC 3.13), not corroborate another necessity No. of criminal in (CALJIC tent accomplice 3.14), to make one an No. testimony and that the 3.18): of an accomplice (CALJIC is to be viewed with distrust No. állhough by 6Stafford asserts that Tackwood was called Pratt and other defendants he was not his witness. The record does not bear this out for Tackwood was called “as a although witness and on behalf of the defense” and he .was not examined Staf attorney, nothing ford’s there is in the record to show that he was not also Stafford’s However, concerning witness. he raises no real issue this and had he done so it would nothing avail him for at no time in the trial court did Stafford or his counsel voice ob Tackwood, jection testimony testimony move to strike his or seek other remedy; complete there was silence on the part of both Stafford and his counsel. Under may such circumstances he not now raise the issue for the appeal. (People first time on 1061, 567, (1969) Washington Cal.Rptr. 479]; People v. v. 71 Cal.2d 1083 458 P.2d [80 Cal.Rptr. 480, 161, (1969) 553]; 70 486 Varnum Cal.2d 450 P.2d v. People [75 889, 762, Moreover, (1965) Cal.Rptr. 834].) Robinson 62 Cal.2d 894 402 P.2d evi [44 objection challenged appeal (People Gallegos dence admitted without cannot be on 237]) v. (1971) Cal.Rptr. 4 Cal.3d 249 481 P.2d and must be considered [93 part (People (1970) Cal.App.3d the evidence in the cause. v. Moore 13 (1961) Cal.Rptr. 538]; People Cal.App.2d v. 435-436 Goss [91 [14 569].) Cal.Rptr. when entered the July until 1971 he something he did not meet Smith up came and Sergeant Ma- conspiracy police department of criminal section room the Smith, building at rear of the working on a model honey who was who introduced Smith”; room, he had been during Smith told him “Captain as various conversations time”; working conspiracy the criminal section working long “a when for police for C-26; the assigned letter assigned and learned Smith had been was number C-14 he “C” referred accomplice an establish that Smith was conspiracy to section. To criminal undisputed be and such that reason- law on the issue must as a matter of the evidence unerringly the existence of such may points which able men fact. Where the facts are draw but one inference susceptible question of of different inferences disputed or 319, (1954) jury. (People v. 43 Cal.2d 326 complicity Santo must be submitted 74, 302].) (1964) Cal.Rptr. 249]; Cal.App.2d v. 228 People P.2d Jones 94 [39 [273 feigned accomplice, a agent thus not a true accom- implication that Smith was There plice; an informer, consequently a paid an and testimony of undercover 37, 39]), out- (State (1965) Ariz. 332 P.2d falls feigned accomplice v. Arriola 99 [409 making unnecessary that it was 1111 show side the ambit of Penal Code section 230, (1971) Cal.App.3d 20 234 sufficiently (People v. Gossett corroborated. [97 Cal.Rptr. 528].) law, accomplice an a matter of such fairly appeared Even had it that Smith was jury have that the court did not believe Tack- an instruction wood’s effect would told invading testimony thereby province jury unfairly prejudicing of and witness, Tackwood, attacking purpose called for a defense defendants. court com credibility. similar nature in which the trial was thus Smith’s pelled Cases of a jury’s accomplice was an to leave the matter of whether witness 536, 340, (1967) Cal.Rptr. 426 (People v. Hill 66 Cal.2d 555-556 determination [58 589, (1898) 407]; 908]; People P. v. O'Brien People P.2d (1892) v. 122 Cal. 591-592 [55 Cuff 171,181 912, 45]; (1970) People Cal.App.3d Valerio 13 924 96 Cal. P. v. [31 292, 82]; (1950) Cal.App.2d 101 295 P.2d Cal.Rptr. People Hartung v. [225 [92 although give re 614]), point, support the trial court’s refusal to directly not quested instruction. Assuming accomplice, that Smith an Pratt and Stafford contend that his testi- support mony was not We find factual in the record for the corroborated. substantial v. jury’s finding accomplice (People not an Rosoto implied either Smith was 304, 779, 867]; (1954) (1962) People v. Santo Cal.Rptr. 58 Cal.2d 329 373 P.2d [23 319, 249]; (1958) People Cal.App.2d P.2d v. Platnick 161 43 Cal.2d 326-327 [273 287, 313, 585]; (1947) Cal.App.2d v. 292 People 320 P.2d Comstock 147 [305 [326 Gossett, 228]) (People v. testimony P.2d hence need not be corroborated one whose 444, 230, 234; (1967) Cal.App.2d Cal.App.3d 20 v. Canard 257 460 supra, People [65 284, Cal.Rptr. 25]; 15]; (1962) Cal.App.2d 287 Cal.Rptr. People v. Salazar 201 [20 1, (1958) 930]) accomplice Cal.App.2d v. 22 P.2d or was an People 98 [329 Griffin (People testimony adequately v. Henderson and his was more than corroborated. 105, 340, 785]; Trujillo (1948) (1949) People 343 32 Cal.2d 34 Cal.2d P.2d v. [209 41, 229]; (1970) Cal.Rptr. 681]; People Cal.App.3d 4 49 112 P.2d v. Smith [84 [194 519].) (1950) People Cal.App.2d v. P.2d [219 Griffin resulting in the ob- Black Panther members preparation Smith told months including guns, headquarters weaponry, machine taining bombs, ammunition, etc.,7 storing both various and transforming each into armed fortress. fortifications and to be made which included and another ordered fortifications He testified that Pratt December July 1 and conspiracy between 7Appellants were convicted (Pratt) possess de fire and to gun, devices and bombs destructive possess machine (Stafford). fire structive devices and bombs cutting open height filling dirt, walls to a from the floor and them with sand or and fill- ing sandbags which placed strategic points along were buildings; walls in both that a escape tunnel to be used for that was under construction at Central Avenue headquarters; present working Stafford was on the headquarters fortifications at both on the tunnel at the Central on the roof of the Central Avenue headquarters; designated Avenue guard Stafford 8, 1969; (Smith) location on December and that he Stafford, fled to prosecution Texas to avoid where he met Pratt they discussed fugitives their ultimately status as apprehended on December 1970. following evidence tends to connect Stafford and Pratt with the commission of they charged the offenses way reasonably satisfy with which were in such a as would jury (1958) telling (People Lyons the 245, that Melvin Smith was the truth. v. 50 Cal.2d 458, 556]; (1971) 257 People Cal.App.3d P.2d v. Johnson 18 464 Cal.- [324 [96 8, Rptr. 421].) testimony police The of various officers establishes on December that 1969, guard headquarters an armed roof of was on the Central Avenue and arrested bombs, during gunfire, after police explosives, a five-hour battle which were met with guns, occupant and machine and that Stafford was the third to come out of the build- surrender; ing headquarters and in Central Avenue on December 8 were various bombs, ammunition, etc., weaponry including shotguns, guns, sandbags machine and fortifications; gun height ports part and and filled with as walls had been cut to a from the floor walls; sandbags along placed dirt and and a tunnel was under con- consistency pile struction with dirt of the same as that in a on the floor in another Avenue, Exposition headquarters by As room. bags in the case of Central was fortified sand- weaponry explosives. and contained similar and The extensive fortifications and weaponry place the tively headquarters in Central Avenue established that it was not an “innocent” arsenal, Stafford, plain but a fortified and the inference is that who came from shirtless, fortress; building night occupant was a amounted to a he had what ac- against participated pipe in the battle in which fire bombs and bombs were used police hardly presence after which he surrendered. Under the circumstances his there could Pratt, knowledge. As be deemed innocent or without to officers testified that on 28, 1969, they November two and one-half hours about observed at the window of headquarters, by lights spot- the second floor Central Avenue illuminated and a street light, holding sandbag pivoting Elmer Pratt in his hands and on a downward toward from, gun; gun them on the pipe .50 machine a machine was fired street a caliber that headquarters bombs and fire bombs were used in the battle at Central Avenue intent, (addressed envelope December 8. issue of an to Pratt at On the the Central address) containing headquarters’ a letter and notes on a bomb fuse and the Avenue fuse, length per bedroom when he was arrested on 55th cost Street; wife, found Pratt’s photographs were of his also found in a brief case in the Pratt bedroom two Pratt, holding gun Saundra a machine similar to that found in Central Avenue 1969, driving headquarters; bombs and a found. April pipe and on Pratt was arrested a vehicle in which containing piece paper directions on how to construct a bomb were foregoing insignificant” The “is not flight when added to evidence of to defendants’ began8 subsequently they Texas before the trial where apprehended with Melvin thereof, Pratt, hearing appellate on the 1538.5 motion and conclusion 8After Texas; to bench “skipped and’illegally bail” fled from California Stafford and Smith warrants were issued for them and eventually they were and arrested in Dallas located This constitutes evi they from which were returned for trial. on December flight flight; very the actions of defendants amounted dence of at the least “Whether Santo, (People v. guilt jury’s was for the determination.” and denoted a consciousness of guilt 330.) only expects who supra, probable 43 is also one Cal.2d “[I]t stay for trial in escape and that an innocent man will proved attempt be at trial will an

931 Cal.Rptr. 718].) Evidence (1970) Cal.App.3d 5 876 (People v. Smith. of Hurd [85 ad guilt implied an and constitutes flight supports of consciousness an inference may mission; of an offense and flight an commission to connect accused tends Perry (1972) v. 7 Cal.3d testimony (People is truthful. accomplice’s indicate 756, 771, (1970) Cal. 129]; Mulqueen 9 People v. Cal.Rptr. 161, P.2d [103 implied ad flight constitutes an 235].) App.3d Cal.Rptr. “[Defendant's [88 guilt, of consciousness affords an inference [citation] mission conduct and Hurd, (People v. su under the section. constitutes sufficient corroboration [Citations.]” 865, 876.) Cal.App.3d pra, 5 2.04, modified, language of CALJIC No. jury in the was instructed testify falsely may be a witness to attempted persuade “Evidence that a defendant considered tending of that to show a consciousness you as a circumstance defen- However, prove guilt and its sufficient in itself to guilt. evidence is not dant’s such significance, your Stafford claims weight any, if matters for determination.” are testi- support the instruction whatever false that as to him there was no evidence to mony given only to motion not to the- trial. related the 1538.5 First, con- Melvin Smith testified evidence shows the involvement Stafford. case,” he cerning gave motion that was arrested testimony on the 1538.5 “in Center; “Well, others, Stafford, including Parker on December 8 and taken with arrested, say say, and day saying first we were we had what we would wouldn’t started all,” police, police anything what we would and tell the if and those tell the wouldn’t himself, Stafford, Smith) (by participating in this discussion were identified as Redd Pharr; January concerning and later in December or other conversations sometime occurred; “Well testimony” present everyone—all their “future and involved were those of the males were at 4115 Central was at Houston that South and [Stafford Central]” Pratt; they got together in the and and when their cell doors were unlocked all corridor testimony; about told ran the even chapter talked the case and their Pratt them he still went”; jail gave in time part what he said “still of the Pratt instructions to Smith (Williams, Bryan, Pharr) gave what to say as to and another time Pratt and others him instructions; “[tjhere agreement say got I was an of what would when I on the stand in Williams, Pharr, [Pratt, participants Bryan]”; court between on numerous occasions at which Stafford],” and some of the other me including “everyone present custody in [those got say him on when I stand” Pratt and others “instructed” “what to on the through police firing guns skylight to tell the court that the started machine him; meeting morning and that awakened was had on the before the what another instructed, preliminary hearing; 1538.5 as did the oth- testified on the motion as ers, testimony really happened but his a lie what on and it was different than they 8. there December After were released on bail were further conversations about they testify. how would defendants, in foregoing various The fair inference from the is that after their arrest testimony, cluding agreed concerning conspired to Stafford and Pratt who their own falsely to which he conver testify suppress, have Melvin Smith on the motion did. The testimony their on purpose sations were of the of all defendants to fabricate indicative motion, they necessary it to have the 1538.5 tions and and that should consider such conversa agree testimony guilty would be some of a to what their affords evidence as 400, (1920) 821].) (People 401 As a of these Cal.App. mind. 47 P. result v. White [190 testimony only Not falsified his on the 1538.5 motion. is evidence conversations Smith of efforts by testify falsely persuade himself a witness to admissible a defendant to against by presence if done in his person him efforts third are admissible but such (1962) Terry person. (People v. 57 Cal.2d and he authorized the conduct such third 538, 185, (1961) 985]; v. Burton 55 Cal.2d Cal.Rptr. People 566 370 see also P.2d [21 362, (People Terry (1970) order to clear win liberty.” his name and lawful v. 2 Cal.3d 409, 961].) Cal.Rptr. 395 466 P.2d [85 932 328, 65, 433]; (1959) Cal.App.2d v. 174 Cal.Rptr. People 347 P.2d Caruso Cal.App.2d 359 [11 158, (1945) 282]; v. 70 163 People 641 P.2d Moore P.2d [345 [160 857]; (1912) 435].) per- P. Stafford was People Cal.App. v. Burke 91-93 [122 relating

sonally to how Smith and others involved some the conversations gave including testify, would and most conversations which Pratt instructions himself objected presence to nothing had in the of Stafford and indicates Stafford either being say Smith or told in court. merit is Stafford’s instructions to to what to Without falsely argument any attempt persuade testify further to Smith to was in connec- trial, evidentiary tion suppress with the rnotion to and not with thus was no there basis for CALJIC No. 2.04. instruction, supports giving jury evidence but if the found that Staf- ford any not attempt persuade anyone testify falsely, other defendant did to to apply very language instruction plication not would to him because its is restricted ap- 2.04 attempted testify persuade falsely a defendant who a witness to ato tending thereof consideration “as a circumstance to show a of that consciousness defen- Moreover, guilt.” during testimony dant’s expressly regard judge Smith’s in this the trial jury instructed the if one attempted persuasion defendant such his action could imputed any not be other defendant but could be considered for whatever weight might have as to only binding that defendant and would not be other.9 Finally, giving Stafford claims that in 2.04 instruction the court indicated to the offense, jury his attempt commission another perjury. commit subornation of 2.04, modified, nothing CALJIC No. indicates of the kind. The evidence was admis- sible jury purpose and could be expressed considered for the in the instruction. Burton, 328, 347; (People supra, People (1903) v. 55 Cal.2d v. 141 Cal. Cole Moore, 547]; People supra, 162-164.) P. v. Cal.App.2d [74 evidence, With no attempt serious to set forth the material Stafford contends that support evidence judgment. argues briefly is insufficient to He although firearms, inflammables and destructive devices were found in the Central Avenue head- 8, quarters presence on December his mere there was not to sufficient establish he was party agreement a any go to “to forward with a criminal scheme” it was and no crime belong organization, to Black to the Panther help sandbag attend its classes or the premises. Stafford found guilty conspiring possess of with others to destructive devices and fire bombs. criminal conspiracy “A exists or persons agree when two more to a commit crime agreement. and do some overt act in furtherance of the It need not [Citations.] 9At regard the of testimony conclusion Smith’s in this the trial court admonished the jury persuade that if a defendant to attempted falsely a witness to testify at the trial “may that by you tending be considered as a a circumstance to show consciousness of guilt, again type but of prove guilt evidence is not sufficient in itself to and its weight significance, and any, jury’s if are matters for the you determination... .If be lieve that or try one more of persuade the defendants did to testify Mr. Smith to falsely, then that is a your circumstance for may your judgment determination which in be evaluated show guilt although to a consciousness of it is not sufficient in itself to prove guilt... .You are judges the exclusive credibility of the facts and of the of the simply you evidence. I would defendant if in testified state to that the that one fact defendant or more than one your it, you urge discretion did suggest determine or that this witness falsely words, imputed not to be to all of the defendants. In you other if should find might one attempted defendant falsely, to have Mr. Smith testify then that your in interpreted discretion showing guilt be a part consciousness of on the of that defendant binding any but wouldn’t be as to of the other defendants.”

933 criminal action. agreed jointly to undertake parties actually and be shown that the met of defendants in mu agreement may from the conduct the The be inferred [Citation.] penal tually carrying purpose out a in violation of a statute. common [Citation.]” 788, 659, 116].) Cal.Rptr. 408 P.2d (1965) 667-668 (People v. 63 Cal.2d Cockrell [47 evidence or a combination conspiracy may be. direct or circumstantial A established 137, (1958) 427]; People P.2d v. Fain 50 144 (People of both. v. Calhoun Cal.2d [323 137, responsibil (1971) 562].) assumed the Cal.App.3d Cal.Rptr. 18 144 We have [95 and, 10,000 pages of ity reviewing which in excess lengthy the trial record runs presuming support in viewing light most to and respondent the evidence a favorable the judgment every reasonably the the fact that can be deduced from of evidence existence Reilly (1970) Cal.Rptr. P.2d (People v. Cal.3d [90 649]), the criminal we sufficient evidence to all elements of find substantial establish party happened be conspiracy, just was not a member of the who and Stafford during attended in the use present of the on December 8 but one who had courses battle fortifications, weaponry, designated guard on the roof on December helped build the 8, actively engaged personally placing fire and destruc police the battle with bombs jurisdiction tive and fled to avoid trial. devices organization which Party Panther is a militant Stafford became Black he early participated member to December 8 in nu- October 1969. From October week, headquarters, Party mostly twice Central Avenue merous activities. Once or at bombs) “military weaponry (guns use of and attended classes” at which the various firearms, ways (using explosives) as- and different sassinate to kill bombs and and ambush and “political party’s people taught, were and education classes” at which goals 10-point program, revolutionary spread pro- as its purposes doctrine and such members, paganda including preach discussed Stafford. and violent revolution were defendants, frequent (all including by “every A statement Panther here” Staf- made ford) get gun, you pick up gun,” daily thing just rid of was “to had to and “a “offing pig” meaning pig” about” with Stafford and others the term “off the or including guns, kept kill were police. Weaponry, bombs and ammunition at all headquarters weapons and “all of the had been were Panther locations killing place”; specifically purpose any policeman there for that came in the all member; weaponry belonged Party, none to the individual on December after firearms, battle, masks, gas gun, powder, Thompson liquid, submachine assorted bombs, grenades, in the pipe hand fire Molotov cocktails were found head- bombs and November, During up December and quarters. and alterations October changes headquarters, made and work was done at both construction fortification during working participated and position time Smith was at Ex- Stafford in this work. Once building up large boy picked pipe into one of the a small wandered and him, reprimand regarding this were made to report bombs which he took from cutting headquarters in addition to either out or Stafford.10 At Central Avenue walls Houston dirt, sandbags, making filling filling placing portions them windows, nailing trap was cut the portholes, floor and a tunnel was under wire and bed frames to a door into mesh construction; worked with others on these and Stafford by dig purpose which was thus described helped and the tunnel the of fortifications the many by police, police so that when had been killed the Smith—“too come to dead any police Panthers Central, they anything to find there but people South didn’t want 4115 there, got completed by police time the so pigs, we were the tunnel so to have weapons door we were to take our would be killed at the and arrived there tunnel”; completed December On through by not 8. escape and one the tunnel had been Stafford, members, including met and dis- in the tunnel group a small of occasion particular inci with this been connected prove 10While does Stafford had not dent, to see that had undertaken who the inference is that he one of those clear was pipe such did into hands. bombs not fall other 934 if penetrate bulletproof police

cussed whether an enforcer carbine would they presence gun.into vests worn headquarters; to the it was came demonstrated Pratt in the tunnel Stafford’s firing eight Thompson that it would a carbine or nine times and a submachine drawers, bulletproof Weapons kept armory, front a vest. an desk gun upstairs. office and in a rack “throughout building during kept Bombs were Central the summer [at Avenue]” 1969; weapons pipe and Smith he kinds of and “about four fall of testified saw all through Exposition. Commencing bombs” in November the last several weeks 1969 Avenue, and December 8 there was a lookout on the roof at Central it was Stafford designated assigned guard who the man who was the armed on the roof on the morning sleeping of December 8. On December 8 Smith awakened Stafford who was headquarters; “jumped up picked up on a divan at Central Avenue Stafford an en- lying top forcer carbine that was on the of the divan” and went to the second floor. Among during “granddaddy second floor the battle of bombs thrown from the all,” match; long ignited Bry- pipe six that was be them bomb about inches with “why taking long getting an and window” so out of the Stafford discussed this bomb Bryan and later either Bernard Smith or Stafford called down to window, During exploded. bomb had been thrown out the then it the battle Melvin Smith heard “Willie Stafford was on the second and Bernard Smith com- [who floor] municating Bryan Robert about when to throw the Molotov cocktails and some bombs”; being police pipe the the second floor officers saw Molotov cocktails and bombs thrown out of headquarters. During the battle Stafford was asked of Central Avenue they exchange gunfire police whether he was should continue the with the and he said going give up; surrendered and was arrested. On the elevator at Stafford (live rounds) gunshot pocket from his Parker Center Stafford removed shells dropped defendants, saying did found on him. After arrest the them to the floor not want them Stafford, say where including saying they say what would and would not “were jurisdiction to police.” While on bail and before trial Stafford fled the Texas he was later arrested with Smith and Pratt. Pratt contends that evidence of “other crimes”—three incidents on March 1969 (a bombing shooting armory shooting at a Compton, apart- Naval in the Doss bombing ment and a post Compton) April a branch office in and one on 1969 (his possession pipe bombs)—was erroneously pur- admitted. It was offered for the Pratt; pose supporting testimony concerning certain of Melvin jury Smith was so addition, instructed and in testimony that if it believed Smith’s as to Pratt’s involve- any ment in testimony actually of these incidents the of others that the incident may determining occurred be considered in whether it tends to show the existence of specific objectives alleged against intent to commit the conspiracy Pratt. Also purpose knowledge for this' and to show that had pipe Pratt of the nature of bombs and knowledge possessed might had or necessary the means that have been useful or 12, 1969, conspiracy, April driving commission of the automobile in which evidence on Pratt was bombs, making pipe were three directions on bomb and other items, was received. Pratt makes no claim of error in the admission of evidence of a bombing police May participated, of the 77th Street station in in which he thus regard we assume either that no-error was committed in this or that Pratt has aban- concerning (1944) doned or (People waived claim of error it. v. Scott 24 Cal.2d 517]; (1972) People P.2d v. 23 Cal.App.3d Doolittle fn. 1 [151 [99 Cal.Rptr. 810].) argues Pratt that evidence of the three incidents March and the April only one on person pos- served to show that he was a of bad character and disposition propensity, sessed of criminal prejudicial and that the court committed admitting error in it.11 limiting given jury expressly in which the was request a instruction was 11At Pratt’s by you prove to may and not be considered directed “such evidence was not received to commit crimes.” disposition character or that he has the person that he is a of bad

935 (1) admitted over his March incidents was of the three 15 Pratt claims that evidence (2) transcript, reporter’s and pages to of the objection, as to each refers certain and testimony of except the Smith participated no that in these events there is evidence he record in connec (Pratt) to him. Pratt’s references he had mentioned the incidents testimony to therein objection interposed the any with incident to show tion each fail Cox, testimony of assertion that the Rupp and Beidle. Pratt’s contained of witnesses is out neither objection over his borne regard in this was admitted these witnesses of witnesses. Nor portion testimony of the these any nor other his record references to He “in ef objection, any, if be found. he indicate where in the record such does fect, the nature of the merely transcript..., to read the ascertain this court invite[s] made, made, ruling in objection propriety and the of the court’s 161, if one was consider (1966) Cal.Rptr. (People Cal.App.2d 239 177 each instance.” v. Martinez [48 error, are 521].) under duty “It defendants to show and that means defendants is the the duty respect. shift bur proper attempt in that It is not to to an affirmative 242, (1951) Cal.App.2d 249 (People v. 104 upon respondent.” den the court Goodall 36, 722]; 119]; People (1959) 44 P.2d Peo Cal.App.2d P.2d v. Klimek 172 [231 [341 616, (1959) 1031].) This court is not ple Cal.App.2d v. 167 618 P.2d Justice [334 required to or nonexistence of error and search record to establish the existence alleged general charge may disregarded be reference where the er the absence of a 117, may Taylor (1973) 123-124 Cal. (People Cal.App.3d rors be found. v. 30 [106 358, 772]; 216]; (1966) Cal.Rptr. Rptr. People Cal.App.2d v. 379 Bowman 240 [49 (1953) Cal.App.2d 765].) Finally, v. 618 is the People Garris P.2d “It [261 relating be general questions admissibility rule that to the of evidence will not reviewed ground appeal specific timely objection at the trial on on sought in the absence of a and exception urged [citations], appear any to appeal to be on and it does not (1972) is applicable (People that rule here.” v. Welch 8 Cal.3d 114-115 Cal. [104 Thus, showing timely and Rptr. 225].) specific P.2d the absence of a objection ground sought urged appeal permit trial on to be on would us to at the contention; however, disregard found error in admission of the Pratt’s we have no evidence the three 15 incidents. March go Melvin spring speci- Smith testified that in the of 1969 ordered Pratt him place bring (meaning weapons); picked up they fied and his “stuff’ men two him and bringing the place weapons; map spread went to where arrived also others on it; (Smith) assigned floor and over squad; Pratt others bent he to a “Pratt was else, know, charge operation everyone you they of the overall under had come assign “target” him and he to the Pratt squads”; picked would them for him—“an organization membership squad part US house”—the of which he was a subse- [Smith] windows; (Mar. 15) through quently apartment upstairs fired into the Doss used; incendiary morning debriefing bullets tracer the next at a session Central headquarters squad (Pratt) Avenue with reported Pratt that the he had been had used guns, placed Compton post bombs and submachine a bomb in office the door they armory and after blew off its door drove to the Reserve sub- over Naval fired guns machine into two them. house”) (the membership P. L. Cox tes- apartment organization “US As to the Doss Karenga organiza- the US in command to Ron tified that James Doss was second tion; Hall, building, testified comanager apartment of a four-unit George Doss morning of 15 he went to apartment on March lived the second floor in Doss condition; Martin testi- (describing) bullet ridden Officer and observed its apartment 2 therein, including gunfire damage found extensive apartment he went to fied different size bullet holes, Compton post of- from As which had come outside. fice, Beidle, morning of March 15 postal inspector, testified that on the Richard damage As to the building and its interior. United went there and saw extensive 936 morning of Armory, Rudd testified that on the

States Naval Marine Reserve Officer piece pipe to the where he holes and a of stuck in armory March 15 he went saw bullet fragmented pipe wall and scattered around. recognized exceptions, be may Save for certain evidence of other crimes not intro 761, prosecution. (People (1969) 71 duced in a criminal v. Schader Cal.2d 772 [80 1, 171, Cal.Rptr. 841]; (1969) People 457 P.2d v. 70 Cal. Durham Cal.2d 186 [74 262, 198].) Rptr. 449 P.2d Such of be if it does evidence other conduct should excluded substantially prove not to fact tend other than criminal character of defendant attempted proof interjected for only should not be with confronted of other offenses “[h]e prove might propensity a criminal have led him to the commission of other crimes.... We exclude such ue of not it probative evidence other crimes because lacks val Schader, outweighs probative prejudicial (People but because its effect its value.” v. 761, 772.) Although supra, probative 71 Cal.2d opposing balance of elements of prejudicial admitting and frequently value effect is struck in favor of of other evidence showing (Peo operandi employed charged crimes similar to in the modus crime 761, 776-777; 233, ple People (1968) supra, v. Schader 71 Cal.2d v. Haston 69 Cal.2d 419, 91]), Cal.Rptr. operandi 245-247 444 P.2d “a common modus is not the ex [70 balancing probative upon process clusive element admissibility: edge, which the will favor value and ‘motive, intent, opportunity, preparation, plan, other elements are knowl Code, (Evid. 1101, identity, (b).) or absence of mistake or accident.’ subd. § on of proof Variations some these include elements conspiracy such of where relevant (P Durham, 171, eople 7], 9])....” v. 70 supra, pp. Cal.2d 180 182 [fn. [fn. 259, (People Lynn (1971) v. Cal.App.3d 16]; 16 Cal.Rptr. People 267 see also v. [94 232, Kelley (1967) 363, 947]; 66 Cal.2d Cal.Rptr. People 239 424 P.2d v. Westek [57 (1948) 9].) 31 Cal.2d P.2d The evidence here was offered to corroborate [190 testimony Smith’s which was of specific offered the issue intent to commit the ob jectives conspiracy charged against of the Pratt. Inasmuch as was not received to identity show perpetrator charged of the of the offense is no concerning there issue whether there are 69 Cal.2d People (1968) distinctive common marks under test of v. Haston Cal.Rptr. 91], 246-250 444 P.2d Evidence of the [70 March 15 events—the existence other Pratt up incidents which ordered Smith to shoot apartment, using bullets, Doss among things incendiary which he did other tracer and in bombing gun post which Pratt himself used and a bombs submachine in the armory office and inference, shooting—‘“tend[s] and logically, naturally, and reasonable (1946) people.’” (People establish fact material for the v. Peete 28 Cal.2d [a] 924].) P.2d specific That material objectives fact Pratt’s intent [169 to commit the alleged conspiracy against of the him—conspiracy possess gun, a machine destruc (bombs, grenades tive devices tracers) and and fire bombs. The record that the shows judge weighed fully trial though admissibility problem presented by the evidence even objection Cox, Beidle, no was raised Pratt testimony Rupp and relevant, found the to be necessary evidence material or in connection with the crime charged probative against balanced the value of the other evidence prejudicial its concluding outweighed effect former the latter. Smith, Cox, foregoing testimony Rupp and Beidle shows attacks on a member organization (a rival) of the US incendiary Panther weapons, post and on the of- (two armory symbols establishment) fice and guns with submachine and bombs. charge operation” Pratt “in overall “targets” shooting chose the for bombing, assigned squads to supervised make these “hits” and actually being them two; present at and participating in such activity charge is relevant to the conspiracy I) (count to tain acquitted, commit murder of which he was possess cer- conspiracy illegal (count III) weapons subject appeal, of this on the issue of relevant Thus, specific possess intent to said weapons. the testimony of Melvin Smith that be- fore December specific Pratt with intent entered conspiracy into a with other guns against and bombs incendiary machine weapons, members to use Black Panther those he considered the rival US organizations and including establishment two to be their enemies with other Black conspire to specific show his intent group, was relevant to 1969, 8, de- gun and destructive possess to a machine on Panther members December “enemies,” against police; the and the their for use vices such as bombs and tracers Hall, bombings actually took Cox, raids Beidle the and testimony and Rupp of testimony. to corroborate Smith’s place proper incident, testimony of Pratt record reference to April In relation to the 12 makes by ad- again objection was made him the and Officer Wolfer but no Officer Wilson evidence; missibility appellate of his nevertheless we consider merits of this court the evidence is er- reasoning” contention “the under which the trial admitted considering years ago Supreme claimed error in the roneous. More than 100 refusal our Court arguments try sufficiency of that “we of the certain instructions held do not (1861) Judge, only (People of v. Sears of the but soundness his conclusions.” [trial] 205, 635, 636, (1955) Cal.App.2d quoted applied People v. Selz 138 18 Cal. words, conviction].) “In other 210 is P.2d of motion to vacate murder [291 186] [denial action, subject judicial judicial reasoning argument, re- and not which is the of view; and, correct, be we are concerned with the faults of the latter.” if the former not 324, (1897) 117]; v. (Davey v. 116 330 Southern Co. Cal. P. Ramos People [48 Pacific 529, (1972) (Í972) Cal.Rptr. 230]; People Gurley 25 Cal. Cal.App.3d 540 v. 23 [101 536, 407]; (1968) Cal.App.2d Rhone 267 App.3d 652, Cal.Rptr. People 539-540 v. [100 254, (1967) Cal.Rptr. 463]; People Cal.App.2d 658 v. 249 257 Evans [57 [73 Cal.Rptr. 276].) “reasoning” suggest We do not trial court’s was erroneous but point subject properly ap- we do out that Pratt’s is based on a matter not contention pellate “reasoning” review. Pratt that the court’s was that the evidence was asserts intent; bombs, knowledge pipe specific admissible court’s show his of if this was the reasoning we concur therewith. duty April patrol Officer testified while on he activated his Wilson that on ahead, Pratt, driver, lights stopped angle at an at stop; red a deadend a vehicle who was the for Lewis; street; by Roger middle of the front accompanied Pratt was shaving a fuse kit with a pipe capped protruding seat were at both ends with and a a fuse, capped capped, with not var- pipe both ends a similar device one end without wire, bullets, fuse, caps, dynamite paper of and a pieces plastic of a stick ious bomb; police containing he took these devices directions on how to construct Wolfer, objects squad, examined the and testi- station.12 of the bomb Officer member including of concerning investigation, the formula construction bombs fied contained in the edge his writing. Pratt’s Clearly admissible to show knowl- the evidence was other specific conspiring intent in Black pipe of nature of bombs and headquarters. pipe Avenue possess Panthers to bombs at Central probative outweighs We of the prior conclude that the value the evidence offenses receipt. prejudice might which have its There was no undue resulted abuse counsel, judicial taking testimony and instance Pratt’s 12During the at the criminally charged as a result of this notice incident, that both and Lewis were was taken Pratt convicted, Pratt had not been tried because Lewis had been tried and 625, (1973) Cal.Rptr. Cal.3d People In v. Beamon 8 633 appear did not for trial. [105 681, inadmissible 905], prior that a offense was not rendered 504 the court held P.2d fortiori, that defen acquitted thereof. A by reason fact that had been defendant emanating does not constitute charges has from another offense dant an not been tried Subsequently contend impediment admissibility and Pratt does not otherwise. to its transporting a destructive device knowingly possessing and Pratt was convicted of Code, judgment (bomb) (Pen. 1230); January this court affirmed § Pratt, 22838). (People 2d Crim. No. v. Beamon, admitting (People supra, discretion court in evidence. v. the trial 905].) Cal.Rptr. Cal.3d 504 P.2d [105 foregoing judgments For the reasons the are affirmed. J., Hanson, J.,

Thompson, concurred. name. B. notes indicate that Kathleen Cleaver testified that Pratt at the Shapiro home of Dr. B, sometime after December Since the Appendix 1968. document attached at with excised, Shapiro’s out Dr. name is consistent testimony, with Kathleen Cleaver’s we

Case Details

Case Name: In Re Pratt

Court Name: California Court of Appeal

Date Published: Dec 3, 1980

Citation: 170 Cal. Rptr. 80

Docket Number: Crim. 37534

Court Abbreviation: Cal. Ct. App.