|
Q. Judge Haynes, since you took that case
up to the eve of trial and diligently 649
prepared
the trial, you were very familiar with
the evidence that the State had? A.
Yes, sir. Q.
We're going to talk about a particular
aspect of that evidence here this afternoon,
but in general what is your view, what
can you tell us now in terms of how you saw
the case? A.
In 1968 on the eve of trial the State was
absolutely confined to a theory of one man:
James Earl Ray, acting alone, killed Dr.
King. Our view of it was that the evidence
and testimony was inescapable that that
was an impossible result both factually and
it was an impossible result at the trial.
We were absolutely confident that the case
would be won. Q.
Were you and your father not in fact asked
to take a plea bargain to James Earl Ray
offered by the State early on because they
didn't want to try this case? A.
I don't know what they wanted to do, but,
yes, we had a plea bargain offered earlier
and took it to James Earl Ray. 650
Q.
What were the terms of that plea bargain,
do you recall? A.
I've forgot exactly what they were, Mr.
Pepper. Whatever the plea was, the plea we
were offered allowed for parole in ten years.
I believe he took a ninety-nine year sentence,
which at that time made him eligible
for parole in thirty-three years. And
we were offered a sentence that allowed for
parole in ten years. Of course, parole wasn't
a likelihood in that case, anyway. The
offer was better than the one we had, at least
theoretically. Q.
What was James Earl Ray's response to that
offer? A.
It was preposterous. Neither he nor we
were going to consider a plea of guilty in a
case that should have been won. Obviously we
would have considered a reasonable plea, but
I think the circumstances were such that a
lesser plea simply was not something that the
prosecutors were putting forward. Q.
Okay. Moving on, you and your father and
your team of investigators obviously 651
interviewed
a good number of witnesses. A.
Yes, sir. Q.
Did you do some of this interviewing yourself
personally? A.
Yes, I did. Q.
And did you at one time or another interview
a man called Canipe, who owned a store
on A.
Sure. Canipe Amusement Company, yes, sir.
We interviewed Mr. Canipe. Q.
So that we can set the location of that,
Judge, if I can bring you back to an area
which I'm sure you haven't thought about in
many years, but -- A.
I recognize it vividly. Q.
This, you see, is a depiction of the rooming
house -- A.
Yes, sir. Q.
-- which it had two wings? A.
Right. Q.
And underneath one wing do you see roughly
where Canipe's store would have been? A.
Put your pointer right back where it was.
I believe there was a doorway to the 652
rooming
house there and then to the right there
was an angle doorway. If you would cut off
that corner roughly there was an angled entranceway
to the Canipe Amusement Company. It
would be in the lower right-hand portion of
that building where you are pointing, right
about where your pointer is. Q.
That's where Canipe's Amusement Parlor
was located? A.
Yes. Q.
Now let's put up a couple of photographs.
Does that look familiar? A.
Yes, sir. Q.
This is the amusement company you are speaking
about? A.
Right. That's the angled entranceway.
Q.
That's the angled entrance here? A.
Yes. Q.
This is the entrance -- one of the entrances
to the rooming house. A.
Yes, sir. Q.
The other entrance is right over here between
the two wings of the rooming house. 653
Q.
There was a -- on the second floor -- I
never went out that entrance, but there was a
crosswalk used by anyone that went in that entrance
there. There was another entrance there
or around the back, one, I forget which.
Q.
Right. Now, what was the State's contention
with respect to evidence that was found
in this area? A.
The State's theory was there was a Browning
box, a Browning rifle box, that contained
some items of clothing, a radio that
had James Earl Ray's penitentiary
number on it and a Remmington 760
rifle that James Earl Ray had bought in rifle
itself was wrapped in clothing. I'm not
totally sure of that. The box itself was wrapped
and tied in some fashion. The
State's theory was that James Earl
Ray had fired the shot that killed Dr. King,
had run across the entranceway there in that
slant between the two buildings. Adjoining
these two buildings was sort of a 654
rickety
metal connecting-way. The State's theory
this was James Earl Ray had fired the shot
from the bathroom on that second floor, come
down that hallway into his room and carefully
packed that box, tied it up, then had
proceeded across the walkway the length of
the building to the back where that stair from
that door came up, had come down the stairs
out the door, placed the Browning box containing
the rifle and the radio there in the
Canipe entryway. That
was the State's theory. It was the
only theory that they could have with James
Earl Ray acting alone in order to prove their
theory. Q.
Then he proceeded to get into a Mustang
and drive away? A.
That's right. Q.
The Mustang was supposedly parked somewhere
around here. Would
you put on the second photograph.
Now, that's a closer view of the angled
doorway. Where did they say this evidence
box was -- 655
A.
I've never seen that picture, Mr.
Pepper. I believe the evidence box was to
the right sort of up against that brick wall
to the right, I believe. Q.
Right here? A.
Yes. Q.
We're talking about thirty-one, thirty-two
years ago. I believe that's where it
was. Mr. Canipe, who owned that amusement company,
was on the scene at the time of the killing.
Is that right? A.
That's what they told me, yes, sir. Q.
Did you have an opportunity to interview
him? A.
Yes. Q.
How long after the actual event do you
recall that you interviewed him? A.
How long after the event was it when we
interviewed him? Q.
Yes. A.
Dr. King was killed April the 4th. James
Earl Ray was arrested in June. He contacted
us immediately. We started investigating
it immediately, even before we 656
went
to August
range, July, August of 1968. Q.
The summer of 1968? A.
I'd say so, yes, sir. Q.
That was at a time when the events would
have been fresh in the mind of Mr. Canipe?
A.
Of course, I don't know what was -- here
I am being a judge. I'm sustaining the objection.
I don't know what was in his mind,
but it should have been fresh. It was immediate.
Q.
When you spoke with him, did he appear
to be aware of -- A.
Absolutely, sure. He remembered it very
vividly. In fact, we turned over that entire
area, as you can, imagine looking for not
only witnesses but also to exclude people who
later may or may not have knowledge about it.
He
was one of the more reliable people
truthfully that we found down there. Those
in Dr. King's party, they were not aware
of what was happening, as they were on 657
the
other side of the street. Q.
What did he tell you -- precisely what
did he tell you about what he recalled about
the dropping of that evidence? A.
He said that the package was dropped in
his doorway by a man who dropped it in his doorway
and headed down headed
south down that
this happened at about ten minutes before
the shot was fired. He was tied up doing
something but saw it happen and didn't go
out to check what it was. Q.
He told you that this bundle of evidence
was dropped in his doorway about ten minutes
before the shot was actually fired? A.
Yes, sir. Q.
What did you think of that? A.
We thought it was terrific evidence. Furthermore,
it was very credible, because right
next to that was a fire station, and the
fire station was packed with Tactical
Squad detectives, firemen, curiosity seekers,
people who were security for Dr. King
and also surveilling him. The fire 658
station
was packed with people looking out the
back. Of
course, when they saw Dr. King go down,
the fire station erupted like a beehive,
and they poured out down the driveway
out the door coming looking both in the
bushes, where most of them thought the shot
was fired, and also on down on Street.
So
to us it is circumstantial. In addition
to the time involved, it was circumstantially
almost impossible to believe that
somebody had been able to throw that down
and leave right in the face of that erupting
fire station. Not
only was Mr. Canipe a credible witness,
but what he said was very credible taking
into account all the circumstances. We
were very very impressed with his testimony.
Q.
Judge Haynes, at this point in the plaintiffs'
case we're dealing with the rifle, the rifle in evidence. A.
Yes, sir. 659
Q.
And the death slug. Was the rifle that
was found in that box the weapon that the
State contended was the murder weapon? A.
It was. It was the only weapon found.
Q.
Were you familiar at that time with any
ballistics testing of that weapon? A.
Yes, sir, from the FBI lab. Of course,
they took it to performed
ballistics tests. Q.
What were the results of that testing that
was done at the time? A.
I believe the phraseology used in the report
was that the evidence slug, that is, the
slug taken from Dr. King's body, and the rifle,
that the evidence slug was consistent with
the type of slug fired by that rifle. In
essence, the best they could do was that Dr.
King was killed by a 30-06 rifle and that this
was a 30-06 rifle. Q.
That's all they could say. Could they
match the bullet, the death slug itself, to
that rifle? A.
We didn't think they had a chance in 660
the
world of matching it. As the FBI -- if there
is a match, if they can make a match out
of a little piece of a slug the size of your
little fingernail, if they did, the testimony
would be that the evidence weapon to
the exclusion of all other weapons in the world
fired the evidence slug. No, sir, they could
not do that. Q.
But is there any doubt in your mind that
if they could have matched that death slug
they took from Dr. King's body to that rifle
in evidence, that they would have done so?
A.
There is no doubt about that. They would
have prized that testimony. That would be
crucial testimony. Then you wouldn't have to
rely on any of the vagaries of eyewitness testimony.
Sure, that would be very important
testimony. Well, we thought it was important.
Q.
Now, did there come a time in the course
of your investigation when you actually
yourself saw, held, examined personally
the death slug? 661
A.
Yes, sir. I held the slug that killed
Dr. King in my hand. Q.
Had you seen other death shrugs and other
bullets at that point in your career? A.
Yes, sir. Q.
What was your view with respect to that
particular slug that you examined at the time?
A.
To the naked eye, it was as good an evidence
slug as you can have. It was a Remmington
core lot bullet and it had a metal base
to the slug. The metal base wasn't skewed.
It was almost perfectly round. See could
the lands and grooves, the marks on the slug
with your naked eye. Visually it was an excellent
evidence slug. Q.
As you looked at it, did you think that
it could be matched easily if it was in fact
the death slug? A.
It was a very small room I guess this courtroom,
certainly the criminal courthouse, and
when I saw that slug, I knew right then if
the James Earl Ray fired that slug, we were
going to see every expert that you can 662
imagine
in the whole world to put that slug with
that rifle. It just didn't pan out that way.
Q.
Judge Haynes, as a result of your intensive
trial preparation and analysis of the
State's case right up to that November date,
how did you believe that a sitting jury at
that time analyzing that evidence and weighing
that charge would have voted? A.
Well, of course, all a trial lawyer can
do is the best he can in assessing what a jury
is going to do. I have considered in my thirty-five-year
career a jury is the best lie
detector there is. But we felt like the jury
would, if it would follow the law and the
evidence, that on the evidence available and
the law in the case, there was virtually no
chance that the State could prove beyond a reasonable
doubt that James Earl Ray could have
acted alone in firing the shot that killed
Dr. King. MR.
PEPPER: Nothing further. Thank
you. CROSS-EXAMINATION
663
BY
MR. GARRISON: Q.
Judge Haynes, I'm Lewis Garrisoin representing
the Defendant Loyd Jowers. I'm going
to ask you a few questions. During
your interviews with Mr. Ray and
the others you interviewed, did they ever mention
anything going on in James Grill located
here next to the rooming house? A.
Yes, sir. James Earl Ray said at some
point in the afternoon -- he said he had an
accomplice, an associate by the name of Raul.
He said at some point in the afternoon
that one or both of them had gone into
Jim's Grill I think to have a beer. We interviewed
everybody we could lay our hands on
who was in Jim's Grill and could find no corroboration
that they went in there. Q.
Did you ever hear the name Loyd Jowers
mentioned in the investigation? A.
Yes, sir. Q.
In what capacity was he mentioned? A.
Renfro Hayes was an investigator who worked
for us at the time. We had hired Renfro
because, among other things, he knew 664
that
area of town and a lot of people involved.
Q.
I knew Mr. Hayes well. A.
Then you know what I'm talking about.
Hayes knew Loyd Jowers and at the time
Loyd Jowers was operating Jim's Grill. Hayes
reported back to us that there was nobody
in Jim's Grill that had testimony to offer
that would in any way affect the case. We
had so much ground to cover, we just excluded
that. Q.
Did you ever hear the name Frank Liberto
mentioned by Mr. Ray or anyone during your
investigation? A.
I never heard the name Jowers or Liberto
mentioned by Ray at all. The answer to
that question is no. I think I heard the Liberto
name -- yes, before today I've heard the
name Liberto. I know that Hayes mentioned
it to me maybe in the 1970's but not
contemporaneous with this. Q.
Did you make some effort to locate this
person called Raul? A.
Yes. To some extent. To some 665
extent.
Bear in mind the question we had on the
table was defending a murder case, not proving
who killed Dr. King. Therefore, our focus
was different than the search for Raul.
But if you want me to go forward to the
extent that we were interested in him -- Q.
Yes. A.
-- there was some information about was
something about it that triggered us as being
very important. In fact, Ray told us the
reason the rifle was in it
was part of an operation to bring guns from
revolutionaries.
We
wanted to go to thought
it was very, very strange that James Earl
Ray refused to allow us to go to New what
happens, to do nothing to investigate that
connection. To
that extent, yeah, we were trying to
trace down -- if nothing else, to -- a criminal
case, as a criminal lawyer, you try 666
to
make your case on the evidence. You just cannot
rely on what the client tells you. To some
extent we were trying to corroborate what
he had told us, but he wouldn't let us go.
Q.
Judge, did Mr. Ray ever tell you that he
-- let me ask you, first of all, did you really
think there was such a person name Raul?
A.
It was inescapable to us that there weren't
conspirators. Q.
I spent two days taking his testimony in
prison. He never could tell me at any time
that anyone ever saw him with this person
named Raul. A.
Mr. Garrison, we looked and looked just
for that, something that would corroborate
that, to no avail. In fact, that's
why we were interested in the Jim's Grill
people, because that was contemporaneous.
We were looking for anything,
anybody that saw a stranger there who
knew Ray or, ideally, Ray with a stranger.
But nobody there at that time 667
would
say anything about that. Q.
Did you ever learn at any time that there
was a witness who saw someone in the brush
area? Did anyone ever tell you that, that
they actually saw some person that in that
brush area? A.
If I may reflect on the question you are
asking. The only person that we talked to
who we believe ever knew who fired the shot
was a man in the rooming house. I'll tell
you about him in a minute if you are interested.
As
far as the brushy area is concerned,
there were some associates of Dr. King
who were on the hotel side of the street who
said that they thought the shot came from there.
But that was all regarding that issue.
MR.
GARRISON: Thank you, Judge Haynes.
Nothing further. REDIRECT
EXAMINATION BY
MR. PEPPER: Q.
Judge Haynes, I know you said you did an
extensive investigation of potential 668
witnesses.
Were there any Memphis Police or Fire
Department witnesses the State shared with
you? A.
I know we received none as far as the police
or fire department. Q.
But you uncovered some of these witnesses
yourself? A.
Sure, yes, sir. Q.
Are you familiar with the contention of
the prosecution at that time that the bullet
has fired from the bathroom window of the
rooming house? A.
Yes. Q.
And that it was fired from the bathroom
window, having been rested on a window
sill? A.
I think so. Q.
And that the prosecution claimed that a
dent in that window sill was made by the rifle
itself? A.
I've heard that. I just cannot believe
that they would have actually tried to
prove that in court, though. That's beyond
belief. 669
Q.
Well, would it surprise you to learn that
in fact at the guilty plea hearing on March
10th, 1969, this contention was put forth
as a matter of certainty that it could be
proven that the dent was caused by the rifle?
A.
I would be shocked if a lawyer said they
could prove that with certainty based upon
what I know of the layout. Q.
Did they turn over to you at any point
in your investigation FBI reports with respect
to laboratory analysis of evidence? A.
No, sir. Of the window sill? Q.
Yes. A.
I don't think so. Q.
It has been entered into these proceedings
as evidence, plaintiffs' evidence,
those reports which indicated that they
could in fact not prove that the window sill
-- that the rifle rested on the window sill.
A.
A report saying that they could not prove
that? Q.
Yes. 670
A.
I didn't need a report. I could see the
window sill and the rifle. That just wasn't
an issue. Q.
I'm just wondering if that was disclosed
to you in the course of your investigation,
that report? A.
I don't remember, Mr. Pepper, specifically.
I know this: There were reams and
reams of evidence, much of which, as soon as
we realized what it was, we were on to something
else. We just didn't have time to chew
on every little piece. The
window sill -- you could not prove
that that rifle rested on that window sill.
There is no way. We know that as lawyers.
If we saw a report that said we can't
prove the rifle rested on the window sill,
we would just flip that over and say, sure,
and then move on. MR.
PEPPER: Judge Haynes, thank you
very much. MR.
GARRISON: No questions for Judge
Haynes. THE
COURT: You may stand down. 671
THE
WITNESS: May I be excused? THE
COURT: You may. (Witness
excused.) MR.
PEPPER: The plaintiffs call Ms.
Bobbie Balfour. BOBBIE
BALFOUR Having
been first duly sworn, was examined and
testified as follows: DIRECT
EXAMINATION BY
MR. PEPPER: Q.
Good afternoon, Ms. Balfour. A.
Good afternoon. Q.
Thank you very much for coming here this
afternoon. A.
Oh, you are welcome. Q.
Would you please state for the record your
full name and address. A.
Bobby King Balfour, 422 (Inaudible.) Q.
Ms. Balfour, are you presently employed?
A.
Yes, I am. Q.
What do you do? A.
I'm a cook. Q.
Where do you work? 672
A.
At Embassy Suites on Q.
In 1967 and 1968 were you employed at Jim's
Grill on A.
I probably was, sir, but it has been so
long, it is hard to remember what year it was.
Q.
Well, do you remember being employed in
Jim's Grill at the time of the assassination
of Martin Luther King? A.
Oh, yes, I do, uh-huh. Q.
On April 4th, 1968? A.
Right. Q.
And who was your employer at that time?
A.
Loyd Jowers. Q.
Mr. Jowers, Loyd Jowers? A.
Uh-huh. Q.
What were your duties then, Ms.
Balfour, at the time? A.
Waitress and cook, all around. I did everything.
Q.
So you waited on tables and you cooked
and you -- 673
A.
Short-order cooked and cooked. Q.
Goodness. How many hours a day did you
work? A.
We came to work in the morning time when
he'd pick us up about four-thirty and stay
there as long as he needed us. Q.
So you started at four-thirty? A.
Yeah. He would pick us up. Q.
He would pick you up and drive you? A.
Uh-huh. Q.
And who else did he pick up? A.
Another lady was named Rosetta. Q.
On April 4th, 1968, did he pick you and
Rosetta up on that day as well? A.
I don't don't think Rosetta came to work
that day, but I did. Q.
Do you think you were picked up by Mr.
Jowers and independently taken to work on that
day? A.
I know I was. Q.
You know you were? A.
Uh-huh. Q.
And you started at the usual time that
morning? 674
A.
Uh-huh. Q.
Now, in the course of your work at Jim's
Grill, were you familiar with a lady who
lived on the second floor just above the grill
in the rooming house named grace Stephens?
A.
Yes. I would take her breakfast. Q.
You used to take her breakfast? A.
Uh-huh. Q.
What time did you take her breakfast up
there as a rule? A.
Between eight-thirty and nine o'clock,
somewhere like that. Q.
Eight-thirty or nine o'clock you would
take her breakfast up? A.
Yeah. Q.
And would you leave the food with her and
then come back downstairs? A.
I would set it beside the bed. Q.
And then would you go and get the dishes
at another time? A.
No. Q.
What happened to the dishes that you left
there? 675
A.
I don't know, but I guess they got back.
I didn't bring them back. Q.
So you didn't bring them back? A.
No. Q.
So you just went up -- you delivered the
breakfast to her? A.
Right. Q.
Why was that? Was she ill? A.
She was in bed all the time. Q.
She was in bed all the time? A.
Uh-huh. Q.
Do you know if she had an illness or sickness?
A.
No, I don't, didn't know what it was. Q.
You didn't know? A.
No. Q.
How long did you have that practice of
going up there and delivering her food?
A.
Oh, just sometimes. I didn't go all the
time because sometimes Rosetta went. Q.
Sometimes Rosetta went? A.
Right. Q.
Was Rosetta working that morning on 676
April
4th, as you recall? A.
I don't think so. It has been a long time.
I can't hardly remember, though. I don't
think Rosetta worked that day. Q.
You don't think she did? A.
I don't think she did. Q.
You were there alone? A.
No, I wasn't there alone. He had another
girl there, too. Q.
He had another girl working there? A.
Yes. Q.
Ms. Balfour, did you take breakfast up
to Ms. Grace Stephens that morning? A.
No, I did not. Q.
And why didn't you take breakfast up to
Mrs. Grace Stephens that morning? A.
Mr. Jowers said I didn't have to take it
up there that day. Q.
Mr. Jowers said you didn't have to take
it up there that morning? A.
Uh-huh. Q.
So he told you not to go upstairs with
the breakfast that morning? A.
Right. 677
Q.
Did he explain to you why he did not want
you to go onto the second floor of the rooming
house? A.
No, he did not. Q.
Did you ask him? A.
No. Q.
You just followed him because he was the
boss? A.
Right. Q.
Do you know if Grace Stephens got her breakfast
that day? A.
I don't know. Q.
Ms. Balfour, how long did you work on that
day? A.
Well, I went in that morning, and I don't
know the exact time it was, but just as I
run across the street just in time to catch the
bus, then I made it in the house and it came
on the TV that King had got killed. Q.
So you left Jim's Grill sometime early
prior to the assassination, and by the time
you got home, you heard about it? A.
Right. Q.
Now, did you go to work the next 678
morning?
A.
Yes, I did. He picked me up. Q.
Mr. Jowers picked you up the next morning?
A.
Right. Q.
And he drove you to work? A.
Right. Q.
In the course of that ride to work the
next morning, do you recall if he mentioned
a rifle to you? A.
No. I remember him saying, you should
have been here last night, we had a lot
of excitement. I asked him what was he talking
about. He said that the police had come
through our place of business and found a
gun. Q.
The police had come through the restaurant?
A.
Right. Q.
And found a gun? A.
Uh-huh. Q.
Where did they say they found the gun?
A.
In the backyard. 679
Q.
In the backyard? A.
In the backyard. Q.
Did you ever look out into that back area
through the back door? A.
I have looked out that back door, but it
was kind of woody out there, a lot of grass,
weeds and stuff out there. Q.
Could you describe that area as you recall
it as you looked onto it? A.
There was a lot of grass out there, you
know, little trees that had grown up back there.
It was in bad shape back there. Q.
Bad shape? A.
Uh-huh. Q.
Mr. Jowers said the police came through
there and they found the gun in that back
area somewhere? A.
Right. Q.
Did he say anything else about the finding
of the gun or about the events of the night
before? A.
Ug-huh. Q.
Nothing more than that? A.
No. 680
MR.
PEPPER: Nothing further. CROSS-EXAMINATION
BY
MR. GARRISON: Q.
Ms. Balfour, you had gone to work that
day at the grill about four or five o'clock
in the morning? A.
Right. Q.
Mr. Jowers as usual had come to your home
and gotten you that morning and took you on
to work? A.
That's true. Q.
Let me ask you something. On the day that
this occurred, April the 4th, 1968, that was
a Thursday, had you worked all that week as
you recall? A.
Yeah. Q.
Did you ever see any money in that restaurant,
anyone bring any money? A.
No. Q.
You were there most of the time in and
out of the back? A.
Yes. Q.
Did you ever see a gun? A.
No. 681
Q.
No gun at all? A.
No. Q.
Did you ever hear Mr. Jowers make any statement
before it occurred about the assassination
of Dr. King or Dr. King, any talk
about that at all? A.
No, Jowers wasn't that type person. Q.
He was not prejudiced at all, was he? A.
No, he wasn't. Q.
Very fair, wasn't he? A.
He sure was. Q.
Did you ever see any police officers in
the grill before the assassination of Dr. King,
did any of them come in on a regular basis?
A.
No. Q.
Let me ask you, Ms. Balfour, on the day
of the assassination, what time did you leave?
A.
I don't know what time it was, but it was
kind of late. Because after I made it in the
house, it came on the TV that King had got
killed. Q.
Did you see any new faces that were 682
there,
any strangers in the grill that day that
you remember? A.
No. Q.
Now, as far as taking the breakfast to
Ms. Stephens, do you know if Mr. Stephens was
paying Mr. Jowers for this? A.
No, I sure don't. Charlie Stephens paid
him all the time. Q.
In fact, that day Mr. Jowers had run Mr.
Stephens out of the restaurant because he was
so drunk he told him to get out of there, didn't
he? A.
Several times. Q.
That had some problems, didn't they? A.
Yeah. MR.
GARRISON: That's all. THE
COURT: Anything further of this
witness? MR.
PEPPER: Just briefly, Your Honor.
REDIRECT
EXAMINATION BY
MR. PEPPER: Q.
Mrs. Balfour, were you -- did you ever
give a statement to the police or any 683
investigating
authority about what you told this
Court today? A.
After King got killed? Q.
Yes. A.
No, they never did ask me. Q.
I'm sorry? A.
No, didn't nobody ever question me at that
time. When they came in that next day, they
asked me a question, but when I gave them
an answer, they told me to go back in the
kitchen. Q.
They told you what? A.
Go back in the kitchen. Q.
Told you to go back in the kitchen? A.
Uh-huh. Q.
They asked you a question, you gave them
an answer, and they told you to go back in
the kitchen? A.
Right. Q.
And no investigating authorities had ever
questioned you about what you saw or what
you heard or anything? A.
No. MR.
PEPPER: Thank you very 684
much,
Mrs. Balfour. MR.
GARRISON: Let me ask you one
other thing. RECROSS-EXAMINATION
BY
MR. GARRISON: Q.
Did anyone from the police, FBI or Sheriff's
Office ever come into the grill while
you were there to look around, investigate
anything after the assassination? A.
No. MR.
GARRISON: That's all. THE
COURT: You may stand down. (Witness
excused.) MR.
PEPPER: Your Honor, plaintiffs
call the clerk of the criminal court,
William key. WILLIAM
R. KEY Having
been first duly sworn, was examined and
testified as follows: DIRECT
EXAMINATION BY
MR. PEPPER: Q.
Good afternoon, Mr. Key. Thank you very
much for coming here this afternoon. Would
you state your full name and address 685
for
the record, please. A.
William R. Key. I live at 1574 Cherry
Park Drive, Memphis, Tennessee, 38120. Q.
Mr. Key, would you tell the Court what
is your present position? A.
I'm the criminal court clerk of Shelby
County. Q.
What are your responsibilities as the clerk
of the criminal court? A.
Basically the clerk of the court is the
keeper of the records. In our case, we also
keep the property and evidence. Q.
And you maintain an evidence room over
in the criminal court clerk's office? A.
That is correct, on the 4th floor. Q.
When you keep property in that evidence
room, what is the nature of the property
that you keep there? A.
Those properties are brought in for court
proceedings, and after that we continue to
hold the property until the case disposed of,
some of it for twenty, twenty-five years. Q.
And has the property in the case relating
to the assassination of Martin 686
Luther
King been kept in your office or property
room? A.
The property in the case of Martin Luther
King's death is kept in a vault. We have
a large room larger than this room here where
most of the property is kept. However, in
the case of the King killing, it is kept in
a safe that is separate from that where we keep
money and diamonds and things of that nature.
Q.
Would you say that all of the evidence
in that case that is known that has been
turned over is kept in that facility? A.
That is correct. There are thirteen boxes
of it, two hundred sixty-seven items. Q.
It is under your direct supervision? A.
That is true. Q.
Your care and custody? A.
Yes, sir. Q.
That evidence that has been kept in that
vault in terms of its custodial chain, it
has been kept in that vault since 1968? A.
Not in this particular vault. The criminal
court clerk's office was moved 687
across
to 201 Poplar from 157 Poplar, and when
it was moved there, it was formerly in a vault
in 157, and when we moved into the new quarters
there at 201 Poplar, it was moved there
in 1981. Q.
So it has moved to a different facility?
A.
Yes. Q.
But it has always been under the supervision,
control, care and custody of the clerk
of the criminal court, which includes your
predecessors? A.
Yes, sir. Q.
You are the most recent in a long line?
A.
Five years. I've had it for five years.
Previous to that Mr. Blackwell had it.
Q.
Now, Mr. Key, are you in attendance here
this afternoon under subpoena? A.
Yes, I am. Q.
Have you been asked to bring a piece of
evidence with you to this courtroom? A.
That is correct. 688
Q.
And what is that evidence that you have
brought here to show us? A.
The rifle that is purported to have been
the weapon that slew Dr. King. Q.
This is the evidence rifle in the case,
the assassination of Dr. Martin Luther King?
A.
That is correct. Q.
Is that evidence in this courtroom? A.
Yes, it is. Q.
Where is it? A.
It is over there. MR.
PEPPER: Your Honor, if the evidence
may be brought forward. THE
COURT: Go ahead. Test it to
make sure it won't fire. (Rifle
passed to the witness.) Q.
(BY MR. PEPPER) Now, do you recognize that
as the evidence rifle in the case, the alleged
murder weapon of Dr. Martin Luther King?
A.
Yes, it is. This is the weapon that we've
had since I've been there, and it was taken
to Rhode Island and Pennsylvania for 689
firing
and testing. Q.
That is the weapon that has been in the
care and custody and has not been tampered
with or exchanged or replaced in any way?
A.
That is correct, since I've been there.
Before I came into that office, I can't
testify to that, but I have some feeling
that it was kept there in the office that
we presently keep it in. Q.
Mr. Key, is that rifle presently, as far
as you are aware, capable of being used? A.
Yes, it is. It still is. We witnessed
it being fired in Pennsylvania and Rhode
Island. MR.
PEPPER: I have nothing further
of this witness. MR.
GARRISON: I have no questions
for Mr. Key. I know Mr. Key well. I've
known you many years. What is it, forty?
THE
WITNESS: A few years. THE
COURT: Let me see it. (Rifle
passed to the Court.) 690
MR.
PEPPER: It is a 30-06 760 Gamemaster.
Your Honor, we would just like the
jury to have a visit with that weapon, if it
is possible. THE
WITNESS: Let me mention this.
I am under court order that no one examines
it nor holds it. THE
COURT: You may hold it for their
inspection. MR.
PEPPER: Nothing further, Your Honor.
Plaintiffs would like the weapon to remain
in the courtroom for the next witness.
THE
COURT: Is the next testimony
concerning this? MR.
PEPPER: The next witness is on
his way, yes. THE
COURT: Would you stay? THE
WITNESS: We will stay here.
THE
COURT: All right. (Witness
excused.) JOE
B. BROWN Having
been first duly sworn, was examined 691
and
testified as follows: DIRECT
EXAMINATION BY
MR. PEPPER: Q.
Good afternoon, Judge. A.
Good afternoon, sir. How are you. Q.
If you would state for the record, please,
your full name address. A.
Joseph B. Brown, business address, 201
Poplar. Q.
Thank you. What is is your present position,
sir? A.
I'm a state judge for the 30th Judicial
District, State of Tennessee, Division
IX, Criminal Court of Shelby County. Q.
Are you testifying here this afternoon
voluntarily or under subpoena? A.
Under subpoena. Q.
Thank you again for joining us. Judge
Brown, would you tell the Court some of your
qualifications and professional training.
A.
All right. I have a law degree from the
University of California, Los Angeles, 1973.
Came out here -- let's see. I've been 692
a
member of the bar of the State of Tennessee since
1975, worked for Legal Services here, then
the Equal Employment Opportunity Commission.
I
was I believe the first black prosecutor
for the City of Memphis and I ran the
City Public Defender's Office for awhile, then
I went into private practice, and in 1990
I was elected judge for Division IX of the
Criminal Courts, August of 1998 re-elected
for another term. Q.
Prior to your law career, could you tell
us what was your professional training and
what was your -- A.
You mean relative to the subject at hand?
Q.
Relative to the subject at hand. A.
I've always had an intense interest in
the field of ballistics, firearms and such like.
I've been a hunter, target-shooter. It
is sort of a hobby of mine. At
one time in life I thought when I night
go into criminal law it was a decision I
made to get as much into the subject as I 693
might
so I would be able to properly defend certain
defendants. Q.
Over what period of time did you develop
this knowledge and experience with weapons?
A.
Let's see. My father taught me to shoot
when I was six years old. So that would
be going on too close to fifty years ago.
Q.
And had you on your own studied and read
about the science of ballistics and weapons?
A.
I have. Q.
Over what period of time have you done
that? A.
About the last forty years or so. Q.
How long have you handled weapons of various
kinds? A.
Like I said, starting about six or seven
years old. Q.
How long have you handled or had experience
with rifles such as the type involved
in this case? A.
I'd say thirty, thirty-five years 694
worth
of experience. Q.
And during the course of that experience,
have you explored the nuances of ballistics
and the matching of bullets to particular
weapons? A.
I have, sir. Q.
Are you familiar with the techniques used
in that process? A.
Yes, sir, I am. Q.
Have you familiarized yourself with the
types of weapons and the types of bullets that
go with those weapons, the range of weapons?
A.
I have, sir. MR.
PEPPER: Your Honor, plaintiff
would move that Judge Brown be -- Judge
Brown's testimony testimony here be admitted
as that of an expert for the purpose of
this discussion. MR.
GARRISON: I certainly agree and
have no objection. THE
COURT: All right. You may proceed.
Q.
(BY MR. PEPPER) Judge Brown, would 695
you
please initially begin a discussion so that
the Court and the jury can become aware generally
of what the science of ballistics is
about and how it is practiced. A.
Actually what ballistics is about is the
flight of projectiles, in other words, a projectile
that has an initial impetus placed upon
it such as a ballistic missle, where there
is a thrust at the beginning of the flight
of the object, a projectile fired out of
a catapult in Ancient Roman times where there
is a slinging of an object, what happens
once it gets that initial impetus, closely
at hand what happens when you fire a bullet,
projectile, from a rifle or pistol or such
like, how does it behave as it travels from
its point of firing to its target or until
it impacts the ground or, in other words,
stops its forward flight. Now,
in that process there are certain
specified or special categories such as
studying the internal ballistics they call the
subject, that is how does a projectile behave
in the barrel of a weapon, what 696
happens
when you take one of the self-contained
cartridges that are about universal
today, put that in the appropriate weapon,
pull the trigger and fire it, what happens.
Those are called internal ballistics.
That is called internal ballistics.
One
of the things that is common today
is to take a projectile, a bullet, if you
would, that has been found in the body of the
victim of a homicide or a wounding and attempt
to compare that bullet with the known sample
fired from the suspect weapon. What commonly
happens is the bullet is placed in a device
that amounts to a microscope where the examiner
can carefully move the suspect bullet
around and then take the known sample and
attempt to compare it using striations, which
are fine grooves that are engraved on the
bullet based on the particular characteristics
of the weapon. There
are basal or base characteristics
that are determined by the nature
of the weapon, what caliber it is, who 697
the
manufacturer is, and then there are individual
characteristics of weapons that are
brought about by manufacturing flaws. Nothing
is perfect, and everything that
is manufactured basically is going to leave
some tool marks in the bore of the weapon.
The idea is to see if you can compare
the individual signature of a weapon that
it would leave on a specimen or bullet, sample
bullet, and see if you can match that up
with the bullet that you have removed from the
body of the victim. Q.
Right. Your Honor, would you describe
for the jury the kind of bullet, projectile
-- but bullets are we're talking about
here -- that is involved in this case? A.
We're talking about a bullet that is nominally
a .308 diameter, commonly known as a
.30-caliber bullet. The allegation of the State
was that that bullet was fired from a weapon
known as a 30-06, in other words, a
.30-caliber weapon firing a cartridge that
was based on a military cartridge known as
.30-caliber of 1906. 698
It
was a modification of the earlier
.30-caliber of the model 1903 which resulted
in a shortening of the case neck of that
cartridge, a reduction of the weight of the
initial military bullet from 220 grains down
to appointed 150-grain bullet. That became
known as a 30-06. The
actual caliber of the projectile is
.308. In European terms that is known as a
7.62 by 63 millimeter cartridge. We know it
as a 30-06. Q.
Judge, would you describe for the jury
the difference between a military bullet or
a hard point and a solt-point bullet? A.
As a result of the Geneva Convention, the
military establishments of most of the world
agreed to not use expanding bullets for humane
purposes. In the latter part of the 19th
Century, the English in India were concerned
about the lack of stopping power that
their bullets showed on some of the native
population, so they had a dumb dumb arsenal
in India. They
started producing a bullet with 699
a
large amount of lead exposed at the tip of the
bullet, and in certain instances hollow pointed,
that is, the bullet has a hole in the
front or a large amount of lead exposed, and
that would cause the bullet to expand when
it hit flesh, which would result in a recovered
bullet looking something like a mushroom.
That caused a very, very bad wound.
So
as a humane matter, most of the world
has agreed not to use soft-point bullets,
and they use what they call full metal
jacketed bullets, where the point of the
bullet is covered with a gilding of steel or
brass or composite jacket so it does not expand.
Most bullets still have a lead core. Q.
Would you explain how the bullets are manufactured
by various manufacturers in terms
of the composition of the lead and the similarity
from batch to batch? A.
Regarding the case at hand, the situation
is this: A manufacturer, say Remmington,
Winchester or Olin, Federal, when they
make up a batch of bullets, they are 700
faced
with this: They do not have any machines
that are dedicated to one particular type
of bullet. So what happens, they may make
a run of twenty-five million or thirty-five
million of a given type a bullet, say
150-grain .308 bullets. Then
after they make that run, they may
switch over to 6.5 millimeter with the same
machine and run fifteen to twenty million
of those. Then when it comes time to convert
it back to .30-caliber, which was the
.308, they can't get the tolerances exactly
as they were before, so what they tend
to do is they run batches which they call
lots, L O T S, and they give each batch a
lot number. When
they load up ammunition, that is,
the completed cartridge, they generally try
to make the lots consistent so that the customer
can be assured that he will get reasonable
accuracy and predictability with any
cartridge that he buys from this company.
So
what happens is they have a lot 701
of
bullets or a batch of bullets with an assigned
lot number. The powder varies, too, from
one batch number, so they'll have a lot number
assigned to a particular batch of powder
and they'll have a batch with a lot number
assigned to the cartridge case that is to
be used in the loaded cartridge. They will
also do the same with primer. So
when they make a run, a batch of these
cartridges, everything will have similar
lot numbers, in other words, the bullets
might be EO71565J3 with a number on that,
and the same with the cartridge. They will
use the same run or batch of lead, the same
run or batch of gilding, the same run or batch
of copper or alloy or brass for the cartridge
case and the same applies. So
what happens is if you run a metallurgical
analysis on any of the materials,
you will expect to find that there is
a metallurgical consistency from one cartridge
to the next in the same batch, from one
sample of powder taken out of a cartridge with
another in the same batch, and the same 702
with
the bullets, the gilding metal of the jacket
will be the same and the lead cores would
be the same. Q.
Thank you, Judge. Have you familiarized
yourself with the death slug in this
case? A.
I have, sir. Q.
Have you familiarizeed yourself with other
bullets and cartridges that were found in
an evidence bundle in this case? A.
Yes, sir. What seems to have happened
is that when the rifle in question was
recovered, there were four unfired cartridge
cases that were recovered along with
the rifle and one fired cartridge case. A
primitive metallurgical analysis done some thirty
years ago revealed or suggests that the
fired cartridge case and the four unfired cartridge
cases are metallurgically identical,
that is, they are from the same lot.
The
bullets from the four unfired cartridge
cases are metallurgically identical when
the lead cores are analyzed, whereas the 703
bullet
removed from Dr. King is not identical.
It is metallurgically different in
its composition, which would suggest it is not
from the same lot. That would be totally contrary
to the policies of the ammunition companies.
Q.
Let us understand what it is you are saying
here. It is that the evidence bullets that
were found in the bundle, the evidence bundle
that was dropped, have a different metallurgical
composition than the slug that was
taken from Dr. King's body? A.
That's correct. Q.
Are you saying -- A.
Further, the significance of that is developed
by the fact that this cartridge case
that appears to have definitely been fired
in the rifle that is in evidence is in fact
of the same lot as the other four unfired
cartridges. You would expect the bullet
that had been removed from Dr. King's body
to have been of the same lot. That
suggests that this bullet was not
fired from that empty cartridge case that 704
was
found with the rifle, and it was definitely
fired in the rifle as per some tests
that were run on that cartridge and that
rifle and other sample cartridges. Q.
All right. Thank you. Now, would you
tell the jury about the nature of the weapon
-- we're going to take a look at that in
a minute -- but the nature of the weapon as
you understand it, the alleged murder weapon
in this case? A.
The murder weapon in this case is a Remmington
760 Gamemaster, caliber 30-06. Q.
And what is significant about the 760 Gamemaster
rifle in terms of its comparison with
other 30-06's? A.
It is what is known as a pump-action rifle.
It is basically the only one still manufactured
in America, though Browning last year
came out with a weapon similarly activated.
At
one time it was popular, but over the
years since the end of the 19th century that
is basically the only remaining center-fire
pump-action rifle. There is also 705
a
slightly different version of that which is a
semiautomatic weapon. Q.
Is there a counterpart weapon that is a
military issue? A.
Well, I wouldn't say it is exactly a counterpart,
but what you are talking about is
.30-caliber weapons generally. It is perhaps
the most popular caliber in America. You
have several weapons that will fire
an identical bullet. By that, I mean that
if you manufactured a lot of or a batch of
these bullets, you could load those bullets
correctly in several different caliber
weapons. One
is what is known as a 308 applied
to something known as a 76 2x51 nail round.
It was adopted in 1954 by the U. S. Government
and most of the NATO forces after some
tests. It also fires a .308 bullet. Likewise,
there is what is known as a
300 Holland & Holland Magnum, a 30 Supra is another
name for it, and it fires a .308 bullet,
the same one. It you hand load, you 706
can
take a .308 bullet that you would buy in a
gun shop, and if it is suitable for your purposes,
you could load that in a 308 Winchester,
a 30-06, a 300 H&H, also in a 300 Winchester
Magnum. You
can load that very same bullet in
a 300 Weatherby. Now you can load it in
-- let's see, I'm talking about factory ammunition
only -- a 30 x 378 Weatherby, and they
have a 330 Super Magnum that Remmington has
that will take the same bullet. There
is something Laseroni has out called
a WarBird, a very specialized thing. There
is a company called Dakota that puts one
out. They all use this exact same .308 bullet.
Now,
what happens, back to your question
about the military, is currently, since
it is a standard NATO round, you have such
items as the M-60 machine gun, which we're
not talking about here, but you do have what
is known as the M-14, which was adopted in
1956 as the standard battle weapon for the U.S.
military, that is, the Marine Corps and 707
the
Army, that has been superseded by the M-16
family of weapons. There
is also an M-21, which is a sniper
edition of the M-14. You have an M-24,
which is a Winchester Model 70 that the military
used in the late 1960's that was a bolt-action
sniper weapon. You
have a version of the Remmington 700
bolt-action weapon that the military currently
uses as a sniper weapon, along with refurbished
editions of the M-21. You have various
and sundry permutations of weaponry that
are .30-caliber that the military has used
from time to time. On
the civilian market there are also
a number of semiautomatic weapons that had
military intentions initially, such as the
F. N. Fowl that was commonly available and
the G3/H and K91, which are available from
time to time. So there are a number of weapons
that will be such as to fire a similar
bullet. Q.
And were there a number of weapons that
could fire such a bullet back in 1969? 708
A.
There were. A number I could think of.
The 308 The
30-06 was even more popular at the time.
Those two would have probably been what
you would have encountered if you were talking
about a hunting caliber center-firing 30-06
or a 308 the
old .30-30, which fires a similar diameter
bullet, but that would be a blunt-nosed
slug, which is an entirely different
design for feeding through a tubular
magazine. You
also had a.30-40 Frig that was this
use starting from 1892 and the military
used a .308 slug,, and if somebody was
shooting one of those, you would have had it
firing a similar bullet. Or if someone hand-loaded
it, that would still be the case.
There were very many foreign copies of the
same weapon. Q.
So any one of those range of weapons could
have fired this type of slug at that time?
A.
That's correct, sir. 709
MR.
PEPPER: If it please the Court,
I'd like to have the witness examine the
weapon in evidence. (Rifle
passed to the witness.) Q.
(BY MR. PEPPER) Do you recognize that weapon?
A.
Yes, that's the 760 Gamemaster in evidence
in this case. Q.
What can you tell the jury about this particular
weapon? A.
Although it doesn't exactly look it right
now, it is a fairly new weapon. It has a
Redfield 2 to 7 variable scope on it. It is
mounted in Weaver scope rings, and mounts it
is a pump-action weapon. And it is from
the evidence, the marking on the barrel,
30-06 in caliber. Q.
Did you have occasion to consider this
weapon as the murder weapon in this case in
some degree of depth and careful consideration?
A.
I did, sir. Q.
When was that? A.
That was during the course of 710
proceedings
brought by the late James Earl Ray,
what are known as post-conviction relief proceedings
to challenge his conviction. Mr.
Ray had never confessed to the killing
of Dr. King, but he had entered what is
known as an Alford versus plea.
That is a plea delivered under the principle
of the case of Alford versus North Supreme
Court case that stands for the proposition
that you may plead guilty even if you
are not actually guilty if you believe it is
in your best interest to do so, from all of
the proof in evidence you think it in your best
interest to do that and you did it freely,
voluntarily, knowingly, advisedly and intelligently
if the State otherwise has a reasonable
factual basis upon which to proceed.
In
other words, you might say you may
plead guilty even if you are not guilty if
you think that is in your best interest if the
State otherwise has a reasonable factual basis
upon which to proceed. In other words, 711
you
might say you may cop out and plead guilty
even if you are not guilty if that is in
your best interest if the State has some case
that they can go forward upon. The
entirety of that case, according to
the petitioner's theory, was based on this rifle,
which is what hooked him up with the case.
During the course of reviewing the record
for this matter, it developed that there
was a transcript of James Earl Ray's guilty
plea. It
develops that Mr. Ray aforesaid had
never actually confessed to the killing of
Dr. King. I believe there are at least two
places in that transcript that revealed that
when an investigator for the District Attorney's
office testified during the course of
the guilty plea procedings and indicated that
James Earl Ray acted alone, in at least one
instance Mr. Ray rose and in sort of a mild
outburst indicated that that was not true,
that he did not act by himself, whereupon
a recess was taken. That happened again.
Another recess was taken. And then 712
he
did not rise the third time. They then went
through the process. It
is not unusual, and we have a lot of
cases that are disposed of on what we call Alford
pleas. In other words, the defendant has
a criminal record that would be revealed to
a jury in the event that he testified which
might be something that he would be leery
of. There would be an instruction given
to the jury to the effect that if the defendant
testifies and you find that he has any
felony convictions, you are not to consider
this as touching upon his guilt or innocence
but you may consider it in terms of evaluating
his credibility. Well,
unless there is an exceptional situation,
and you get in front of a jury and they
find out you've got a criminal history, they
are not going to look at you as well as they
might have otherwise even in spite of the
instructions give by the judge. You may think
that the case is so outrageous or so gross
or horrible that you don't really want to
take your chances in front of a jury and 713
you
will settle for what has been offered. So
that is what we had going on here as
far as the petitioner's theory. In other words,
at the time, considering the person who
was slain, the public outcry and uproar and
the possible sentence he could have gotten,
he thought it was in his interest to enter
what is known as an Alford plea. Q.
Now, Judge Brown, how long did you preside
over those proceedings? A.
I'd like to say about three years. It
all sort of shifts into a blur. It got in my
courtroom, there was at that time a set of laws
and cases that had been decided that basically
caused me to deny the petition of James
Earl Ray for not being timely. However,
I did note that there was a loophole
in the existing laws in the State of be
sitting on death row, let's say, and through
the use of DNA evidence he could prove
his absolute innocence. But unless he had
filed that case within the existing statute
of limitations for post-conviction 714
relief
proceedings, which at that time was three
years, and raised that evidence or he was
able to avail himself of what was known as
petition of era crim nobis, which has been an
ancient thing, of within one year, then he had
no remedy. The
law abhors a situation which is legal
where there is no judicial remedy, which,
of course, the only thing he could do was
apply to the governor's office for clemency.
So
what I ordered is that the petition
would be denied, but I would allow the
petitioner to put on what is known as a proffer
of proof. In other words, if he were allowed
to present this evidence, this is what
it would show so an appellate court could
determine whether or not the law needed to
be reviewed. Well,
in any event, I ordered that the
rifle be retested. That was in accordance
with an order given by the late Preston
Battle, who was the original judge. In
1968 Judge Battle entered an order that 715
said
the rifle was to be tellsed since he was not
satisfied with the ballistics tests that had
been run at that point. But that rifle was
never retested. So
I ordered it retested. It went to
the Court of Criminal Appeals who went along
with the prosecutorial side of things and
declined to allow that rifle to be retested
and issued a stay. Well,
a few weeks after that stay was
issued, it developed that the legislature,
which I was aware of, had been working
on a new post-conviction relief statute
and they passed that statute and they said
if there is new scientific methodology that
would establish the innocence of a petitioner,
there is no statute of limitations,
and such post-conviction relief petitions
have no time limit on when they can be
filed and no time limit on when they can be
reopened for showing by new scientific evidence
or methodology that the defendant is innocent.
That is so you don't get someone stuck
on death row when there is methodology 716
such
as DNA testing that would show he is not the
fellow. Q.
Judge Brown, in the course of preceding
over those proceedings for post-conviction
relief, did you consider very carefully
the testing history of that rifle and
familiarize yourself with it? A.
I did, sir. I thought that it was totally
inadequate. At the time this weapon was
tested by the FBI, what they did is they took
four cartridges and fired them through this
weapon into what is known as cotton waste.
If you fire a high-velocity projectile
into cotton waste, you totally obliterate,
that is, destroy, the fine striations
that would enable you to do a valid
ballistics test. The
only thing you can get to out of that
would be the basal characteristics, in other
words, the base characteristics, which would
be this weapon fired a .30-caliber bullet
of .308 in diameter, and it had four lands
and grooves with an apparent right-hand twist.
717
One
thing they never did resolve out of
that was what was the rate of twist. Historically
30-06's had rates of twist of one
full turn in every ten inches. Weapons that
are designed from the front end as 308 weapons
have one full turn every twelve inches,
though there are examples of each where
the rifling twist is as the other would be.
It depends upon what you are trying to achieve
with the weapon, whether you think you
will fire a heavier bullet or a lighter bullet
for the caliber. But,
in any event, the tests that they
did indicated -- the tests that they did were
totally incapable of giving a valid basis
of comparison to determine whether the bullet
removed from the body of Dr. King was in
fact fired from this weapon. Now,
in any event, there are some other
things that happened that I became aware
of during the course of my examination of
the record. One thing, I believe Mr. Key came
up with this, that is when I asked for an
inventory of all evidence in the case, he 718
noted
that there was a picture of the bullet or
the slug that was removed from Dr. King's body
before it was transmitted to the FBI. That
picture revealed that the bullet was intact,
though mushroomed. What
the FBI sent back after the conclusion
of the test was three jacket fragments
and three lead core fragments that had
been cut as though you were taking a banana
and just pulled the peels all the way off
of the banana and then took a knife and cut
the banana length-wise in three equal sections.
Q.
Judge, let me just stop you there. Let
me put this picture up. Is that the photograph
you referred to? A.
You found the picture, I see. It looks
similar to that. I can't say if that is
the actual item in evidence. Q.
Does it look similar to the evidence photo?
That was a photograph of three fragments?
A.
Right. Q.
So would you describe, as best can 719
you
-- A.
What you can see in the lower right-hand
corner is the jacket itself. It has
been peeled back by a mushroom process. What
you are looking at is the other two items
are pieces of the lead core. Q.
Would you explain how that could occur.
A.
Well, it could be that it was not a very
well-constructed bullet and it simply fell
out at some time during the course of testing.
But what I found later in there was not
just what you look at there but before the
jacket had been peeled back so there are three
separate fragments to the jacket itself.
Q.
So the bullet that was taken from Dr. King's
body was in one piece? A.
It was in one piece. It is a hunting bullet.
It is a soft-core bullet. That bullet
is designed for the human harvesting of
animals. You don't want an animal to suffer.
So what you want is for the maximum energy
of the rifle to be dumped into the 720
target
so it dies quickly due to massive injuries.
It mushrooms so the bullet transfers
most of its energy into the animal rather
than putting a clean hole through it. If
you were to shoot an animal between
one hundred and about three hundred fifty
pounds, any of the animals that are typical
of this continent, with a 30-06 from say
under a hundred fifty yards, which would be
typical hunting range, if you got a solid torso
hit in the lung or heart area, you could
pretty much count on that animal dying.
That would be a non-survivable wound.
You
would dump the entire energy of the
weapon into the target, and that would be about
a ton and a half of energy at somewhere between
a hundred fifty yards down to close to
the muzzle. In
other words, if you fired this weapon,
you would have 150-grain bullet moving
at a nominal velocity, and with the type
of ammo they were likely to have had in 1968,
at about twenty-seven hundred, 721
twenty-seven
hundred fifty feet per second, which
would leave you going on three thousand foot
pounds of energy. In
other words, if you put a scale in
front of the muzzle of this rifle, one foot
in front of it, and fired it, you could register
what that bullet weighed, and it would
weigh about a ten and a half when it hit
this scale. What
usually happens is when you shoot
somebody with a military bullet, which is
a full metal jacket, you put a nice clean hole
in them and most of the energy is dumped in
the dirt or in a tree or rock behind the target.
If you shoot an animal with this, you
dump all the energy in the animal and it expires
quickly. Generally
hunters prefer these days to
have the bullet completely penetrate the animal
so you can leave a blood trail. But I will
assure you it leaves a much bigger hole on
the way out then it does going in. If
you shoot a deer, very seldom will
one of them drop right in its tracks. 722
It
will usually take off and run twenty-five, a
hundred fifty yards, and you've got the task
of tracking that animal through the underbrush
until you find the body which has expired
from blood loss. If
you shoot the animal right and the
bullet does not penetrate downward but stays
inside and disintegrates, which is known
as a bullet failure, then you may still disrupt
the animal's central nervous system and
it will drop in its tracks. That happens from
time to time. Q.
Judge, do you recall from the evidence
before you at that time how the petitioner
came to buy that particular rifle? A.
What seems to have happened from the record
is that James Earl Ray went into a business
that sold firearms and bought what is
known as a 243 the
308 rounds that we had been talking about or
at least the cartridge case, neck down, to
.243 caliber. In other words, about six millimeters
versus seven point six two millimeter.
723
He
brought it back the next day and advised
the proprietor that he had been told or
advised to get a .30-caliber weapon, whereupon
he reportedly purchased this item right
here and they mounted a scope on this weapon.
Q.
Judge, I'm going to come to the scope,
but could I ask you, was the 243 purpose
that this one was allegedly used for? A.
Actually a 243 actually probably would
have been a better weapon for the purpose
than this would have been, commonly used
to dispatch deer and also varments. Also,
it is a pretty accurate round, and we're
talking about a range that is less than a
hundred fifty yards, if you have any idea of
the ultimate layout of the scene, which is Dr.
King at the Lorraine Hotel with the apparent
point of firing being somewhere within
a hundred fifty yards. Q.
The 243 good
or a better a rifle for the purpose of assassination
than that weapon? 724
A.
At least as well. It would have been quite
a bit better caliber than the one that was
used to kill President John F. Kennedy. Q.
Why, then, in your opinion, after considering
the varieties of the two rifles and
the choice ultimately settling on this 30-06,
why was petitioner instructed to buy this
caliber rifle? A.
Based on the entirety of the record and
the entirety of the circumstances of the case,
it was my belief that it was so there could
be a number of common-caliber weapons that
might have been on the scene of the killing.
Q.
That would have had the same caliber
-- produced the same caliber bullet? A.
Same caliber bullet. If the test for ballistic
comparison purposes were run as they
were by the FBI, that is, firing the sample
projectiles into cotton waste so that you
could not get more striations on them so you
could compare the bullets with what was taken
from Dr. King's body, you would have about
sixteen or so million weapons that 725
could
have been the one that fired this bullet.
I
think Remmington ultimately made right
now somewhere around eight or nine million
of these using the same barrel machinery,
either with this permutation of the
760 Gamemaster, the 740 semiauto or the Model
700 bolt-action series. Q.
Moving on to the scope, you were about
to tell us about what you concluded with
respect to the scope. A.
It is interesting in that the proprietor
of the shop never did what they call
polarimated this scope. You can't just take
a new rifle with a scope mount on it, put
some rings on it and then put a scope on it
and expect to hit anything. You've got to zero
the thing. That is not very neat. There
is a device called a polarimeter,
which looks like a small telescope,
that has a little spindle that will
fit down in the muzzle of this weapon. Usually
when you get a polarimater, they give you
a number of spindles that will fit most 726
common
calibers. You
put that spindle-mounted polarimater
into the muzzle, you line it up. There
are some crosshairs on it. You take these
scaps right here of the scope and you'll
see in here a slot. What you do is you
move these screws or these devices around using
a coin until you get the crosshairs on the
scope matching the crosshairs on the polarimater.
There
is another alternative method that
you can use with a bolt action, which is to
take the bolt out, and the receiver will be
open. You lay this rifle on a sandbag and you
aim down the barrel itself at some item about
a hundred yards away, a small circular item,
and you try to align it in the middle of
the bore with the same amount of the bore showing
around this item. Then you manipulate
the adjustment knobs on the scope to
align the crosshairs with the item one hundred
yards away, and you keep looking back and
forth. As
you can see with this rifle, it 727
has
got a closed receiver, so you cannot bore-sight
this using that particular method.
You'd have to polarimate it. It
has been my experience over the last
thirty years firing I don't know how many
hundreds of rifles that even when do you get
it polarimated or you bore a sight, right after,
when you take it out to the range to finalize
your sight-in process and you put up a
target at about twenty-five yards distance, that
I would say would be about the size of one
of these picture frames on the wall, you might
be lucky to get it in at the bottom left-hand
corner at twenty-five yards. Then you'd
have to dial in sixty clicks up, sixty clicks
to the right or left to get it close on
and then back out to a hundred yards and then
try to sight the thing in further, and by
a slow process make it so that the bullet impacts
where your crosshairs are located. Now,
usually what you do on a .30-caliber
weapon, if you are a hunter or somebody
else, you try and get the typical bullet
impact approximately two inches, maybe 728
an
inch and be a half or two inches, above point
of aim. That would put your rifle dead on
at two hundred yards, maybe two fifty actually,
two hundred fifty yards. That
would mean if you fired at a target
with the weapon cited in like that at twenty-five
yards, you'd hit with a scope like
this on it about three quarters of an inch
to an inch below the target. At about fifty
yards you would start crossing over that
target line. At about sixty-five to seventy
you would hit right on. At
one hundred yards you'd be about an
inch and a half, inch point nine, maybe two
inches high. You'd be slightly over that at
two hundred yards. And at two hundred fifty
you'd be dead on. And at three hundred you
might be six or seven inches low. So
you would have to sight this thing
in. It does not appear that this weapon
was ever sighted in. Now,
there was also an FBI report in the
record that talked about this weapon having
been test-fired shortly after it was 729
taken
into evidence. And that report revealed
that it shot several feet to one side
at a hundred yards and slightly half that
low. So this does not appear to have been
a sighted-in weapon. Now,
it is possible that it could have
been knocked out of zero, but this rifle is
not one for that to be something that was as
likely as it would be with other weapons. You
will note that it has got a two-piece
stock. This stock really is not firmly
affixed to the barrel. There is a rod,
an operating rod, upon which this slide is
affixed. That keeps it from having any impact
on the barrel at all. This barrel is fixed
tight with the receiver. You simply have
a butt stock here which keeps this thing from
occurring like your typical bolt action where
there is wood that goes all the way up the
receiver and up along the barrel which tends
to warp one way or the other depending upon
the temperature and humidity. So
this rifle probably would not have
gotten much out of zero, and what I call 730
out
of zero is maybe an inch or so one way or the
other. If you get real finicky, you make sure
you get it right back on. So
this weapon, if it was in the condition
it was in three some days, four some
days after it was taken into evidence, literally
could not have hit the broadside of a
barn if somebody was shooting with it at a target.
That
brings up some other circumstances
if you want me to go into it about
what I was observing about the target conditions
themselves. Q.
Yes, I'd like like you to briefly summarize
that. Let me also understand what you
have told us now. Based upon your review of
the -- A.
You want me to say it simply? In other
words, you buy one of these, put a scope
sight on it, you've got to sight it in.
It takes a bit of doing. It takes a little
help with some mechanical devices on the
front end. That was not done with this weapon.
731
It
does not appear that this weapon was
sighted in. And when it was recovered and
first taken into evidence, it would not hit
what it was shooting at. It would hit several
feet to either right or left. I think
it was four feet one way and two feet down.
Q.
Yes. That is what the FBI report indicates?
A.
That's right. Anyway -- Q.
Could that rifle scope have been thrown
out that amount had it been dropped on a
sidewalk? A.
That amount, no. I had one of these very
scopes, fell out of a tree and landed on the
bloody thing. Damn near broke my leg. But
I could carry on with the hunt. Q.
The scope was intact? A.
Scope was intact. Rugged scope. That's
why they sold a lot of them, the Redfield
two to seven variable. One of the earlier
variables, but a pretty good one. Q.
Let me just ask you: Moving on, based
upon all this analysis and review of 732
this
rifle, the testing information, the documentation,
is it your opinion that this weapon
was the murder weapon that killed Martin
Luther King, Jr.? A.
Well, I've not discussed the further ballistics
tests I ordered and the result. But
based on the entirety of the record and the
further ballistics tests I had run on this
rifle, it is my opinion this is not the muder
weapon. Q.
Could you just summarize for us the basis
of that opinion? A.
Okay. The basis of that opinion would
be run based on the subsequent ballistics
analysis that was done with this weapon
using scanning electron microscopy to analyze
the sample bullet and compare it with the
slug removed from Dr. King, the circumstances
attendant upon the lack of similar
batch status of the bullets from the rest
the cartridges, this weapon itself in terms
of it not being sighted in and also a description
of the shooting itself in terms of
what supposedly transpired that makes this 733
a
rather unique weapon. Now,
if you would like, I'll talk about
the ballistics test that I got the results
of. Q.
Yes, please. Go on. A.
Okay. What ultimately happened is I ordered
this rifle thoroughly cleaned for this
reason: It is a new weapon. The bore has
not been shot in. It has not been broken in.
The bores of rifles need to be broken in just
like your car needs to be broken in. They
are still rough. Remmington
was not the worst at that,
but in 1968, 1967, 1966, the firearms companies
were switching over from a lot of hand
labor to machine-manufacturing processes that
had not been perfected. There was a big hue
and cry in the whole gun world about the defects
that you often found with new products.
I know I had to send one back every
four or fifth time I got a hunting rifle.
There was a flaw in it that had to be sent
back for correction. In
any event, I ordered this weapon 734
cleaned,
because even though it had -- you can
look through it right now. It looks like you've
got a shiny bore. If you look under it
-- at it under certain light conditions, this
whole bore is smeared with jacket powder.
Basically a bullet fired in a hunting
weapon has a lead core. It has a gilding
metal jacket or a bronze jacket, and there
is coating over the top of that. When
you fire it down this bore with the
high heat of the combustion process and the
higher pressure and the velocity, it leaves
trace elements of that jacket all down the
barrel. The more of the barrel that is broken
in and the smoother it gets, the less it
leaves. When
I inspected this weapon initially,
the bore impressed me as quite filfthy.
I used a bore sight. It is a little
device with a light in it. You can look
through this thing. It is absolutely filfthy.
In
any event, I ordered it cleaned. They
apparently did not clean it more than to 735
run
a patch down one or twice through it. I had
given as a suggestion that they use something
known as a file out, which is a device
made by a company known as Outers, that
is nonintrusive. You
fill this barrel with a chemical.
You put a plug in it, an electrode in
it, hook the barrel up to the other electrode
and you leave it for twenty-four hours
and it works a reverse-plating process and
you get all the filings stripped out of this
barrel and it adheres to the electrode. So
you would have a pristinely-clean weapon
in twenty-four hours. They chose not to
do that but to simply run a patch through it
for a number of reasons, which through mistake
-- which was going against their mistaken
understanding of my order -- they thought
I order them not to clean it. But
in any event, they fired eighteen
bullets from this weapon into a water
tank. Twelve of those bullets, that is,
sixty-six point three four or seven five or
sixty-seven percent, showed a similar 736
characteristic
that was a very unusual characteristic.
What
usually happens when you take a bullet
and you fire it down a rifle barrel is that
the actual diameter of the bullet, that is,
the .308 in this case, would match the bore
diameter. But when you have the bore, there
are some lands, some ribs that stick down.
Those ribs would engrave the bullet. They
would press markings into the bullet. What
was unusual about the characteristic
of the projectiles that were fired
out of this weapon is that there was a defect
somewhere in this barrel that caused the
bullet not to be pressed down but to come up
into this particular flaw. So what you did
is instead of a rounding, say one of these
styrofoam coffee cups, with grooves that
had been indented in that, imagine, if you
can, that there would be a bump that would
be sticking up on the surface. So
that is very unusual and indicated
that there was some shattering in the
tool that was used to make this barrel. 737
It
very seldom happens. It is very rare. But
it was present on these bullets. Now,
because this weapon was not cleaned,
what happened was that the filing material
was being blown out of this flaw. So
one of these bullets would have a gross reflection
of this flaw. The next shot through
it would be somewhat less impressed because
of the filing that had filled up this defect.
The third one would have even less of
an impression. Then the filing would get blown
out. The next bullets through would not
show it to a gross extent. So
you've got twelve bullets with the
same common characteristic, that is, this raised
area on the surface of the bullet. There
was not -- that was not found on the corresponding
portion of the bullet removed from
Dr. King. Now,
using scanning electron microscopy,
you can get a much more clear view
of what you are looking at than the traditional
method. One of the problems with the
so-called experts that were called in on 738
this
is none of them were really expert in much
of anything concerning firearms other than
simply looking at one bullet, comparing it
with another bullet, in a microscopic setting.
None
of them had any experience in scanning
electron microscopy, none of them had
any significant experience in actually shooting
or using a rifle or anything other than
what they did in the laboratory. None
of them had ever cleaned a rifle
other than I believe the testimony was that
when they found one clogged with mud or dirt
or debris, they would run a rod through just
to get that out so they didn't destruct the
weapon. In
any event, this characteristic was
common. Sixty-seven percent of the bullets
showed it. I ordered the weapon be be
retested once this cleaning was done. The nature
of the defect was such that it would be
expected that one hundred percent of the rounds
fired would show this defect. If
I can give that to you in lay 739
terms,
it is like this: You are sixty-seven years
old, seventy-four years, you are having trouble
urinating. You go to the doctor. He says,
I think you need to go see a proctologist,
I'm noting a very hard area in your
-- hard something in your prostate area.
The proctologist says, okay, fine, we need
to run some tests. Every test they run is
saying, okay, you've got prostate cancer. That's
where we are with this rifle here.
The next step would have simply been a confirmation
of everything that had gone before.
But this does not appear to be the rifle
that was used to kill Dr. King. There
is another thing about that that
is unusual, too: The testimony that the barrel
of this rifle was rested across a hard wood
window sill, that the gunman, using one foot
to prop himself up, holding on and using another
arm to hold the weapon, he supposedly rested
this barrel on this window sill and pulled
the trigger. Well,
there is an unusual thing about
this one. Being a slide-action, if you 740
do
that, nine times out of ten the slide is going
to cycle itself before the pressure is dropped
in the barrel, and what you'll get is a
blown-up or ruptured shell casing, which will
be quite exciting when it happens. So
this rifle fortuitously is incapable
of being used as they indicated in the
proof that was in the record. So
we've got, one, non-similar lots of
components, two, we've got a rifle that has
never been cited in, three, we've got a usage
suggested for that that is impossible for
this particular type of weapon, and then in
addition, when we run the more advanced ballistic
comparison tests, none of that matches
up. Q.
Judge, after all of that analysis, you
had come to order retesting under very strict
guidelines? A.
Very strict. Q.
The cleaning and the retesting. That was
about to go forward. What happened? A.
Well, they removed me from the case. They
said I was biased towards James Earl 741
Ray,
which found rather astonishing. If anybody
knows me, me being biased in favor of a
self-avowed racist and bigot is absolutely disgusting
as a concept. What
I've always tried to do is be fair
and impartial and neutral and detached straight
down the middle, and sometimes I know
that upsets people when things don't go as
they expect them to go. Q.
So you were removed from the case by whom?
A.
The Tennessee Court of Criminal Appeals.
It is interesting that was done before
a full transcript was developed. I must
say this: That during the course of these
procedings, whenever the prosecution didn't
like what I was doing, they would run up
and file affidavits, which in my personal opinion
misrepresented the state of the evidence,
and they would go up there to get an
emergency stay before a transcript was prepared.
Now,
one thing that struck me as quite
unusual is one of the affidavits they 742
filed
in this particular case, which was, quote,
the weapon should not be tested because
if it is tested, it may be damaged, which
would prevent it from being tested in the
future, unquote. Q.
Judge, would you explain to the jury how
firing that caliber weapon might generate what
appears to onlookers to be smoke rising from
a brush area? A.
It is my saying you do not get smoke from
smokeless power, but when you have a high-intensity
cartridge like a 30-06, you don't,
but what you might find is the following:
The compression may cause a condensation
of water, which is a phenomenon that
I've observed from time to time hunting or
shooting, or, two, you may kick up fine dust
in the area immediately in front of the rifle,
or, three, because this rifle slug may be
moving close to the speed of sound, the shock
waive from the bullet passing a bush or some
foliage that has dust on it will cause it
to rise and it will look to the onlooker like
smoke. 743
Now,
there is another thing about this
rifle that is of significance. It goes back
to what you asked me in terms of my opinion
about why the .30-caliber weapon. Not
only could you use a number of civilian weapons,
but if somebody were analyze the basal
characteristics of a slug taken from Dr.
King and this weapon with what the FBI did,
you could not tell whether that weapon came
out of an M-14, a M-21, an M-24 or the Remmington
700 military sniper weapon that they
had at the time, nor could you tell if it
came out of that. One
of the things that they did not do
is attempt to analyze the twist of the projectile
that was recovered which might have
been helpful. But in any event, what you
have is a situation where let's say you have
one, two, three, four or five people who have
been for one reason or the other convinced
that they were doing something worthwhile,
they could have all been out there
attempting to carry out their own little
particular portion in some perceived 744
assassination.
Meanwhile, other people could have
been involved, and if any of those people
had been out there, then each of the .30-caliber
weapons they possessed could have
been tied into the case just like this one
was. Q.
That fatal shot could have been fired from
any number of .30-caliber weapons? A.
Any number of .30-caliber weapons, military
or civilian. Let's put it this way:
As a professional involved in the criminal
justice system for a very long time, as
a prosecutor, public defender, defense lawyer
handling murders, robberies, very serious
crimes, this had to be one of the most
inept and incapable, if not downright incompetent
investigations, I've ever seen in my
life. It
would it would have struck me that
if they had really wanted to analyze bullets
fired out of this rifle, they would have
fired them into water, not cotton waste.
It would have struck me that they would
have done a more intense analysis of 745
what
you have over there. Now,
you've got a base of that bullet
that is completely intact, and it is quite
subject to even ordinary ballistic analysis
for striations. They did not do that.
Q.
Judge, on that tack, the FBI reports indicated
that the death slug was too badly deformed
for them to do that kind of analysis?
A.
That's not a badly-deformed slug. What
you have here is an intact base. That is
what you need. What has gone on here is that
most of what is in this record is something
that you would accept on trust. Ballistics
is an arcane subject. The
FBI is supposed to know everything there is
about the subject. In 1996 the FBI was trusted.
The FBI said in our professional opinion
this is not capable of being analyzed.
They didn't do anything on, absolutely
nothing at all, except the worst things
you could do if you wanted to develop some
test results. 746
Judge
Preston Battle looked at what they
supplied, and even back in 1968 he was not
satisfied with these tests, and ordered that
they be redone. So from 1968 up until James
Earl Ray died, there was a resistance on
the part of local authorities to keep this weapon
from being retested. The
first judge ordered it. I ordered
it. When it was tested, sixty-seven percent
of the bullets were found to not match
that murder slug. MR.
PEPPER: Judge Brown, thank you
very much. THE
WITNESS: You are welcome. |