In re Pratt (112 Cal. App. 3d 795, 1980)

Opinion

HANSON (Thaxton), J.

Introduction

In 1972 following a protracted trial a jury convicted petitioner/defendant Elmer Gerard Pratt (hereinafter defendant and/or Pratt) of the murder in the first degree (Pen. Code, § 187) of Caroline Olsen in Santa Monica on December 18, 1968 (known as the tennis court murder); of two counts of robbery in the first degree (Pen. Code, § 211); and of assault with intent to commit murder on Kenneth Olsen (Pen. Code, § 217). The jury also found he was armed with a deadly weapon (pistol) in connection with each offense. The judgment of conviction was affirmed on appeal by division four of this district in an unpublished opinion (2 Crim. No. 22504). The California State Supreme Court unanimously denied defendant’s petition for a hearing.

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

By reason of the extremely serious allegation by current defense counsel (a) that “a totally innocent man has languished in the San Quentin and Folsom prisons since mid-1972, and that... he was sent there as the result of a case which was deliberately contrived by agents of our state and federal governments” (petn. for writ of habeas corpus filed in the Super. Ct. of Los Angeles County which has been incorporated by reference with the petn. for writ of habeas corpus filed with this court); and (b) that the assertion in the petition for writ of habeas corpus lodged in this court that defendant Pratt’s “conviction was the result of a joint effort by state and federal governments to neutralize and discredit him because of his membership in the militant [Black Panther Party]” which committed “a fraud upon the court and jury,” we have ordered up, pursuant to California Rules of Court, rule 60, for review along with the extensive record of the petition before this court the entire record of the 1972 jury trial, including pertinent exhibits, and the record of the petition for writ of habeas corpus previously filed in the superior court which was denied. (See also Cal. Rules of Court, rule 12(a).)

In addition to the foregoing and by reason of the nature of these proceedings; the public interest generated by persons or groups seeking to obtain defendant Pratt’s release from prison as evidenced by newspaper articles; the personal involvement of United States Congressman Paul N. McCloskey, Jr., 12th District of California; the large list of individuals and organizations appearing as amici curiae on behalf of defendant Pratt; and the accusation by defense counsel that a court of this state was “implicated” in the “cover up” of the “framing” of Pratt (see fn. 5, infra), a more detailed treatment than usual of the series of events leading up to this proceeding, the trial evidence, and an analysis of the FBI documents supplied this court is deemed necessary in order to place the entire case in proper perspective.

Chronology of Events

In order to render the great mass of evidence and the court actions contained in the very extensive record more manageable and understandable, interspersed below in chronological order are the key out-of-court events which triggered subsequent governmental or defense actions and the court actions resulting therefrom.

On December 18, 1968, at about 8 o’clock in the evening Kenneth Olsen and his wife Caroline Olsen, who was also a school teacher, went to the Lincoln Park Tennis Courts in Santa Monica to play tennis. After they had put money into the light meter and turned on the lights, they were accosted by two armed black males who ordered them to lie face down on the pavement. They were relieved of their valuables which were on a nearby bench and then the gunmen turned and from a distance of 8 to 10 feet opened fire upon the Olsens as they lay helpless, face down, on the tennis court pavement. Caroline Olsen subsequently died as a result of two gunshot wounds which she received. Kenneth Olsen was hit five times and although he bled profusely, he survived the ordeal.

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

On January 17, 1969, at about 2 o’clock in the afternoon (about one month after the tennis court murder in Santa Monica) A1 Prentice (Bunchy) Carter and John Huggins, officers in the Black Panther. Party (BPP), were shot to death in the cafeteria at Campbell Hall on the UCLA campus. The killings occurred during a joint meeting of about 400 members of the Black Student Union (BSU) and members of the BPP and another rival black militant group called United Slaves (US) incorporated. There was a lot of friction between the Black Panthers and US to take over the BSU and the assassinations of Carter and Huggins were attributed to the US organization.

James F. Naveau, a state police officer assigned to the UCLA campus with the job of penetrating subversive militant groups on campus, infiltrated and became a member of the Students for a Democratic Society (SDS) and was also a member of the Friends of the BPP.

Officer Naveau testified at a subsequent defense motion to suppress as evidence (pursuant to Pen. Code, § 1538.5) the .45 caliber automatic pistol later determined to be the murder weapon in the Olsen case. He said that “there was a lot of friction between the Black Panthers and the US to take over the black student union.” Officer Naveau went to Campbell Hall when he heard of the killings and met a Joe Brown who said: “They just blew up two of my brothers.” When asked “who,” Joe Brown said: “US.” Joe Brown told him (Officer Naveau) that other Panthers “had split to go to John’s [John Huggins’] pad to get the shit [weapons or explosives] and a lot of US people and a lot of L.A.P.D. pigs were going to get blown up that night.” Officer Naveau knew John Huggins’ address was 806 Century Boulevard in Los Angeles. He immediately communicated this information to his immediate supervisor of the campus police (Captain Lynn) and to Sergeant Davis of the Los Angeles Police Department (L.A.P.D.) intelligence division as well as Jim Clark of the state C.I.I.

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

One loaded .45 caliber automatic pistol found by Officer Jim Finn on a table adjacent to a second floor window overlooking the front of the premises was later determined by a ballistic expert to be the weapon used in the “tennis court murder" of Caroline Olsen on December 18, 1968. (See trial evidence infra.)

On August 10, 1969 (about seven months and three weeks after the tennis court murder), Julius Carl Butler, also known as “Julio,” met with Sergeant Duwayne Rice, a black officer of the 77th division of the L.A.P.D., whom he knew socially and trusted as a friend and handed Rice a sealed envelope. When Butler handed the envelope to Sergeant Rice, he told Rice that he felt there was a contract out on his life, that he may be killed and that if anything happened to him to read it and give it to his mother. The envelope on the outside had written on it “Sgt. Rice” and “Only to be opened in the event of my death.” (See infra concerning the circumstances surrounding the writing, sealing and delivery of the envelope to Sergeant Rice.)

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

On October 20, 1970 (over 14 months after Butler handed the letter to Sergeant Rice and over 22 months after the murder of Caroline Olsen), the sealed letter which Butler gave to Sergeant Rice on August 10, 1969, was opened for the first time. Butler therein stated that defendant Pratt had confessed and bragged to him about being the “tennis court murderer.” (See infra concerning the circumstances surrounding the opening of the envelope.)

The information contained in the letter inside the envelope was what caused law enforcement investigators for the first time to focus on Pratt as being involved in the December 18, 1968, “tennis court murder” of Caroline Olsen.

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

On December 4, 1970, following intensive investigation by detectives an indictment was returned by the Grand Jury of Los Angeles County charging Pratt with one count of murder, one count of assault to commit murder and two counts of robbery arising out of the December 18, 1968, “tennis court” crimes.

On April 8, 1971, defendant Pratt was arraigned and pleaded not guilty.

On July 28, 1972, following a hotly contested jury trial which began on June 11, 1972, in the superior court, Honorable Kathleen Parker, judge presiding, defendant Pratt, represented by Johnnie L. Cochran, Jr., and Charles Hollopeter, was found guilty on all counts and the degree was determined to be first degree as to the murder count and as to each of the robbery counts.

On August 28, 1972, defendant’s motion for a new trial was denied and he was sentenced to state prison for the term of life as to the murder count and for the term prescribed by law as to the other three counts to run concurrently with the life sentence.

On August 28, 1972, defendant filed a timely notice of appeal from the judgment of conviction.

On February 1, 1974, Division Four, Second Appellate District, with Acting Presiding Justice Edwin Jefferson and Justices Gerald Dunn and Robert Kingsley constituting the panel, filed its unpublished opinion (2 Crim. No. 22504) which unanimously affirmed the judgment of conviction. This opinion, heretofore unpublished, is attached hereto as Appendix B.

On April 17, 1974, the California Supreme Court unanimously denied defendant’s petition for a hearing.

On November 4, 1974, the United States Supreme Court denied defendant’s petition for a writ of certiorari.

On April 23, 1976, the “Final Report” of the “Select Committee to Study Governmental Operations with Respect to Intelligence Activities” to the United States Senate, Senator Frank Church, chairman (hereinafter for the sake of brevity the Church Committee Report), was published describing the purposes and methods used by the FBI’s counterintelligence program (Cointelpro). The Church Committee Report describes Cointelpro activities as covert action programs initiated for the purpose of “protecting national security, preventing violence, and maintaining the existing social and political order by ‘disrupting’ and ‘neutralizing’ groups and individuals perceived as threats.” (P. 5.)

Cointelpro’s activities during the 15-year period it was operational (between 1956 and 1971) were described as being aimed at five targeted groups “perceived [as] threats to domestic tranquility: the ‘Communist Party, USA’ program (1956-71); the ‘Socialist Workers Party’ program (1961-69); the ‘White Hate Group’ program (1964-71); the ‘Black Nationalist-Hate Group’ program (1967-71); and the ‘New Left’ program (1968-71).” (P. 4.)

A chapter in the Church Committee Report entitled “The FBI’s Covert Action Program to Destroy the Black Panther Party” states that “[i]n August 1967 the FBI initiated a covert action program—Cointelpro—to disrupt and ‘neutralize’ organizations which the Bureau characterized as ‘Black Nationalist Hate Groups’.”

The Church Committee Report states that: “The Black Panther Party (BPP) was not among the original ‘Black Nationalist’ targets. In September 1968, however, FBI Director J. Edgar Hoover described the Panthers as: ‘the greatest threat to the internal security of the country.

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

“By July 1969, the Black Panthers had become the primary focus of the program, and was ultimately the target of 233 of the total 295 authorized ‘Black Nationalist’ Cointelpro actions.” (Pp. 187-188, fns. omitted.)

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

On November 20, 1979, defendant Pratt relying on the Church Committee Report and certain FBI documents obtained pursuant to the FOI Act filed a petition for writ of habeas corpus in the Los Angeles Superi- or Court which was heard by the Honorable Kathleen Parker (the same judge who had presided over the trial of the case seven years earlier in 1972). The alleged basis for the relief sought was essentially that defendant Pratt had been “framed” by the FBI and state agencies as part of Cointelpro.

On January 18, 1980, Judge Parker following a four-day hearing denied defendant’s motion for a summary judgment, and denied his petition for habeas corpus and his request for an evidentiary hearing stating that she didn’t think defendant “by wishful thinking. . .can step from one point to another by speculation” and that “an evidentiary hearing at this time would [not] serve any useful purpose” as she didn’t “see sufficient evidence that Mr. Pratt was framed and that he did not have a fair trial.”

On April 10, 1980, defendant Pratt filed the instant petition for writ of habeas corpus in this Court of Appeal. He does not seek review of the superior court’s denial of relief but rather seeks review by way of an original proceeding in this court.

The Evidence at Trial

Following is a brief summary of some key evidence, direct and circumstantial, contained in over 1,500 pages of the reporter’s transcript of the pretrial hearing and the jury trial in 1972.

The Prosecution’s Case

Eyewitness Identification of Pratt:

Victim Kenneth Olsen, who survived five gunshot wounds, on two separate occasions made a positive in-court identification of Pratt as one of the two male black gunmen who robbed him and his wife, murdered his wife Caroline and then attempted to murder him. The first in-court positive identification of defendant was made during the pretrial hearing on defendant’s motion to suppress Mr. Olsen’s identification testimony and the second in-court positive identification was made during the jury trial.

Witness Barbara Reed, who with her husband Fred Reed owned and operated the Lincoln Hobby Center in Santa Monica about four blocks from the tennis court, testified that on December 18, 1968, a few minutes before the “tennis court murder” two male blacks entered her shop while she was alone in the shop addressing Christmas cards and waiting for her husband to return; that one of the men was defendant Pratt who was the shorter of the two; that the defendant looked down into the office and then the taller of the two proceeded along with him to the back of the store and looked into two cases. Mrs. Reed asked if she might help them and defendant inquired if they had merchandise to build a doll house for his wife. She replied that they did not have material at the time to build a doll house since they were just starting the shop and defendant said: ‘“You act as if you don’t want to sell us anything.’” Mrs. Reed said, “‘Sir, you have to realize we are just moving up into this store. We don’t have much merchandise in here at the present time, and each night my husband brings up a carload on the way home.’” The two men then left the store and Mrs. Reed, feeling suspicious, locked the door and turned the sign from “open” to “closed.” Shortly thereafter she heard male voices, looked through the window of the door and saw the same two men walking back and talking to each other. She saw both men standing in the doorway with a gun protruding from the right hand of the tall man while defendant Pratt shook the doorknob saying, “‘Let us in.’” Mrs. Reed immediately went to the telephone to call the police and the two men departed.

(Fred S. Reed, husband of Barbara Reed, testified that he was driving to the Santa Monipa hobby shop at about 8 p.m. on December 18, 1968, and as he approached the store he saw two black individuals jimmying the front door trying to get in. After he circled the block, he saw the same two black men, one of whom was wearing a safari jacket, hurry away on Lincoln Boulevard and disappear between two parked cars.)

At the pretrial hearing of defendant’s motion to suppress Mrs. Reed’s identification of him (which motion was denied by the court), she (Mrs. Reed) made a positive in-court identification of Pratt as being the shorter of the two blacks who on December 18, 1968, at about 8 p.m. shortly before the tennis court murder were in her hobby shop and who then returned later and tried to get in the locked front door.

At the jury trial Mrs. Reed again positively identified defendant Pratt as one of the two gunmen. She “remember[ed] his face thoroughly” and that “one predominent feature” was a round scar (“indentation”) “between his eyes on the lower part of the forehead, above the eyebrows.” (Exhibit 8 includes a photograph [No. 13] of defendant Pratt which shows he has a small round-shaped scar or indentation on his lower forehead similar to that described by witness Barbara Reed.) She testified that Pratt was wearing a safari jacket hanging open with a black or navy blue tank type shirt or sweater underneath, brown trousers, tan shoes and no hat.

The Murder Weapon:

The chief forensic chemist for the L.A.P.D., DeWayne Wolfer, testified that a barrel for a .45 caliber automatic pistol is removable but that marks left on an expended shell from the breech face, firing pin and ejecter are positive means of firearm identification. He positively identified, by use of a comparison microscope, that the three expended casings recovered at the scene of the “tennis court murder” of Caroline Olsen on December 18, 1968, were fired from the .45 caliber automatic pistol found in the second floor living room next to the window overlooking the front of the premises at 806 West Century Boulevard on January 17, 1969. He was unable to identify the slugs recovered as matching the same .45 caliber automatic pistol but surmised the barrel had been changed or that excessive firing of the weapon precluded identification. (The failure to match the slugs with the barrel is consistent with Butler’s testimony that defendant Pratt told him he had changed the barrel in the murder weapon; see infra.)

The above testimony of ballistics expert Wolfer was uncontradicted. At defense counsel’s request the court appointed a ballistics expert of the defense’s choosing, namely M. L. Miller. Mr. Miller examined the same evidence and made an independent microscopic comparison in the presence of Officer Wolfer but was not called as a witness by the defense to testify to contradict Officer Wolfer’s testimony.

The Getaway Car:

Witness Mitchell Lachman who was parked in a van next to Lincoln Park at about 8 p.m. on December 18, 1968, testified at the trial that he heard shots and then saw two black men run very fast from the tennis courts and get into a red (shiny-polished) car with a white canvas convertible top and speed away. He did not get the license number but saw that the license plate had a white background with dark numerals. At the trial he identified a 1968 North Carolina license plate as having a color consistent with the color of the plate on the getaway car. He further identified a photograph of a car which was once red but which had been repainted blue as having the same body design as the getaway car and the red under a right front chrome headlight frame which had not been repainted blue as similar to the color of the car he saw speed away from the scene of the crimes.

Officer John Lawrence Higgins of the L.A.P.D. testified that on April 12, 1969, at about 11:30 p.m. at 28th and Westview Streets he stopped a 1967 Pontiac convertible, white over red in color with a California license number YEZ 997, which was driven by defendant Pratt with a Roger Lewis as a passenger. He made a report that the identification number of the vehicle was 242677P-239094. He further testified that the strip of red under the headlight rim of the car (the car that had been repainted blue) was the color of the car he stopped on April 12, 1969.

The following are the stipulations entered into between the prosecution and defense counsel and accepted by the court in respect to the getaway car:

“Mr. Kalustian: At this time may it be stipulated between the defense, Mr. Hollopeter and Mr. Cochran, and myself, the prosecution, that the following information was obtained from the Department of Motor Vehicle records from the State of North Carolina and the State of California;

“That on October 3rd, 1967 the defendant Elmer Pratt purchased a 1967 Pontiac convertible, red body, white top, in North Carolina.

“It bore identification number 242677, P as in Paul, 239094, and was assigned North Carolina license D5113.

“This vehicle entered California on September 6th, 1968. The defendant Elmer Pratt first made application for California registration on February 3rd, 1969 for the 1967 Pontiac convertible, red body, white top, bearing identification number 242677P239094, and North Carolina license D5113.

“On March 27th, 1969 the California Department of Motor Vehicles issued to this vehicle California license plate YEZ, Young Edward Zebra, 997.

“On August 22nd, 1969 the defendant Elmer Pratt made application to the California Department of Motor Vehicles for a new license plate.

“On September 4th, 1969 the California Department of Motor Vehicles issued new California license plates, Young Zebra X-ray, YZX 618 to defendant Elmer Pratt’s vehicle, a 1967 Pontiac convertible, identification number 242677P239094.

“On April 8th, 1970 the defendant Elmer Pratt sold the above described vehicle to Haste and Hirste, Incorporated, automobile dealers.

“Further, that the car shown in Exhibits 11 and 12 [painted blue] is the same car heretofore referred to, that is, the one bearing ID number 242677P239094.

“Mr. Hollopeter: So stipulated.

“Mr. Cochran: Stipulate.”

The Testimony of Julius Carl Butler (Julio):

Julius Carl Butler, one of the prosecution’s key witnesses, on December 18, 1968 (the date of the tennis court murder), was a hair stylist operating his own beauty shop and was also a member of the BPP. At that time he was a bodyguard with the rank of lieutenant in the BPP with duties of supplying security at 'party rallies and events. He was called “Julio.” Although his shop was not a hangout of the Black Panthers, it was used according to Butler to “communicate sometimes with each other through [him].” At the trial Butler testified substantially as follows:

On December 18, 1968 (the date of the tennis court murder), Pratt came to his shop with another person whom he (Pratt) introduced as “Tyrone.” Pratt told him (Butler) to come outside as he had something to tell him. As they stood in the doorway “he [Pratt] told me [Butler] he was going on a mission, and if he didn’t come back, you know, to notify the other members of the Party that something might have happened to him.” Pratt did not indicate what the “mission” was. The two then left and Butler went back to work. Butler had no conversation with Tyrone who was taller than Pratt.

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

On December 19, 1968 (the day following the tennis court shootings), Butler saw an article in the Los Angeles Times newspaper which reported a shooting incident in Santa Monica. Later that day he met Pratt “at the 3-A office” (the Black Panther headquarters at 7th Avenue and Venice in Los Angeles). He testified that there wpre “quite a few people there but I [Butler] talked to him [Pratt] outside of the office.” Just the two of them were present. Butler testified that “I showed him the newspaper and the incident, and he [Pratt] stated that that was the incident that he [Pratt] was talking about the night before.” Butler asked Pratt what happened to his car because the newspaper indicated that his car had been apprehended or taken, seized, and he (Pratt) said, “no, it wasn’t, and that it was hid out.” Butler also stated that Pratt had a red or burgundy Pontiac GTO convertible with a white top which was always kept washed and polished.

Butler testified that while discussing the newspaper article with Pratt “I asked about the weapon that was used and what he had done with it, and he told me he had destroyed the barrel.” Pratt at that time did not state what kind of weapon he had used, but later acknowledged that it was a .45 caliber automatic. Pratt bragged about “his own capacity and proficiency” in the shootings and how “cool” he was for disposing of the gun barrel. Butler testified that the writing, sealing and delivery of the letter (see Appen. A) to Sergeant Rice on August 10, 1969, stemmed from the fact that he had become disenchanted and disillusioned with the BPP and its philosophy and decided to quit but when he (Butler) told Pratt that he wanted out of the party his life was threatened and he was told he couldn’t quit because he knew too much. Butler then decided as an “insurance policy” to write the letter, which he did, and gave it to Sergeant Rice, a friend whom he trusted, in a sealed envelope with instructions that it should only be opened in the event of his death. He then put the word out on the street that such a letter was in existence so it would reach defendant Pratt.

(Sergeant Rice at the trial corroborated Butler’s testimony pertaining to the receipt of the sealed envelope from Butler and that Butler had told him that he (Butler) felt that he was going to be killed and handed Rice the envelope with instructions that it should only be opened in the event of his [Butler’s] death.)

In respect to the circumstances surrounding the opening of the sealed envelope on October 20, 1970 (over fourteen months after Butler handed it to him), Sergeant Rice testified that he had first given it to Captain Henry for safekeeping five or six months after he received it as a personal friend from Butler; that he did not know the contents of the envelope; that he (Sergeant Rice) was under investigation by internal affairs of the L.A.P.D. for a matter unrelated to the delivery of the letter to him (for striking a white police officer). The L.A.P.D. internal affairs knew of the existence of the sealed envelope and demanded to see it as part of their investigation. Sergeant Rice asked Butler’s permission to turn it over to internal affairs officers, which was granted. Sergeant Rice then asked Captain Henry for the sealed envelope and turned it over to Sergeant Edmund M. Lutes, Jr., of internal affairs who opened the envelope. As previously noted, the information contained in the letter (see Appen. A) was what caused the detectives for the first time to focus on defendant Pratt as a suspect in the December 18, 1968, murder of Caroline Olsen.

(During the course of the trial Butler substantially corroborated Sergeant Rice’s testimony in respect to the opening of the sealed envelope.) As a result of the investigation prompted by the contents of the letter, Butler was called as a witness before the grand jury. Butler stated that he reluctantly testified before the grand jury because “[he] figured that the testimony would nullify the fact that [he] had the information, that [he] was using it as leverage” (an “insurance policy”) against the threat on his life.

The Ollie Taylor Incident:

Julio Butler testified that when he returned home the night of April 22, 1969, defendant Pratt and some other Black Panthers were already at his apartment and were waiting for someone. Ollie Taylor, a 17-year-old Black Panther whom he did not know, was brought in and the other Panthers started interrogating him (Taylor) about being affiliated with the US organization; that during the interrogation Blue struck Taylor in the mouth with a gun; that the group then moved into a back room where the interrogation continued; that Pratt then with a cocked hammer on his pistol ordered Butler to interrogate Taylor; that Butler was “very seriously frightened” of Pratt and struck Taylor with his hand; that when the interrogation ceased he washed Taylor up and allowed him to stay in the room the rest of the night; and that Taylor left the next morning.

(The testimony of the victim Ollie Taylor was substantially as follows: that on approximately April 22, 1969, at about midnight he, Ollie L. Taylor, Jr. [17 years of age], was picked up at the gas station where he worked by Richard Johnson and Nathaniel Clark and taken to Julio Butler’s apartment; that when he [Taylor] arrived at the apartment defendant Pratt, Blue, Long John Washington, Julio Butler and Elaine Brown were present. Taylor was placed in a chair in the middle of what appeared to be a living room and was questioned first by defendant Pratt and thereafter by Elaine Brown if he was a member of the US group. When Taylor answered that he was not, defendant Pratt said he was lying and hit him with his hand knocking him out of the chair onto the floor where several persons started kicking him. Taylor rolled himself into a ball and covered his head. He was then stood up and taken into another room and sat down on the floor facing defendant Pratt. Pratt sat on something that looked like a mattress holding a gun. Defendant Pratt asked him again if he was a US member and because his answer was not definite, Blue hit him in the head with a gun five or six times. After he had been asked several questions, Julio Butler came into the room, showed him a newspaper with some US members’ pictures on it and asked him if he knew them. When Taylor replied he did not, Julio Butler hit him across the mouth with the back of his hand, knocking one tooth out and chipping another one and then gave him a towel. They went through his wallet looking for US identification and then defendant Pratt, Blue and Julio left the room. Later a man came in the darkened room and helped him lie down and took his shoes off. Since it was dark, he didn’t know who the man was. In the morning Elaine Brown and another “sister” took him home.)

Defense

Defense Testimony of Elmer Pratt (G or Gerónimo):

Defendant Pratt testified in his own defense. He denied ever being in Barbara Reed’s hobby shop or in the tennis court in Santa Monica at any time including on December 18, 1968. He denied making a statement to witness Butler at any time on the evening of December 18, 1968; he further denied going out on a “mission” or later telling Butler that he had shot someone on that date or discussing with Butler on December 19, 1968, a newspaper article concerning the “tennis court murder.” He denied that he ever went any place with a man named Tyrone. He knew a Tyrone Hutchison who was a Black Panther but didn’t meet him until sometime in 1969.

In addition to his general denial of the crimes alleged, the defendant’s main defense was an “alibi.” He stated that “[he] was in Oakland, Oakland or Frisco. [He] was in the Bay Area” on December 18, 1968. He went to the Bay Area either on the 13th, 14th or 15th of December 1968, to get acquainted with the BPP program. He did not return to Los Angeles until the day after Christmas, December 26, 1968. Although he went to San Francisco by airplane, he did not remember the airline. He did not buy a ticket himself because it was given to him by Bunchy Carter and “it was a sister who got the ticket.” Franco Diggs (now deceased) drove him to the airport. When he arrived in San Francisco, he took a cab to the San Francisco BPP office where he saw “two sisters.” He spent the night at “a Panther pad” above a drugstore with others including Fred Bennett and Richard Brown. The next day he went to the National BPP office in Oakland. He met a sister “named Jackie, who [he] was with most of the time while [he] was in the Bay area.” He also met David Hilliard, went to meetings, went out into the community and sold Panther papers. He also “went to a party at this pad, we went to Dr. Shapiro’s. I remember his pad.” About a week after he had gotten up there, he heard that Franco Diggs had been killed on the 19th of December. He testified that he was continuously in either San Francisco, Berkeley, or Oakland from the time of his arrival on the 13th, 14th or 15th of December 1968, until his return to Los Angeles on December 26, 1968, and “think[s]” that he was at David Hilliard’s house on the evening of December 18, 1968.

. In respect to the 1967 GTO Pontiac convertible identified as the getaway car from the “tennis court murder” he admitted that he brought it into California with North Carolina license plates on it, that its original color was red and white, and that it was repainted blue but not under his direction. He stated the BPP took over the payments on the car and other Black Panthers drove it.

In respect to the .45 caliber automatic used in the killing of Caroline Olsen, he denied that it was his weapon or that he ever had possession of it including on December 18, 1968. On cross-examination he admitted that he was familiar with such a weapon from his Army training, could field strip (assemble and disassemble) it and knew that the barrel could be replaced. He denied ever carrying such a weapon.

In respect to facial hair, he stated that when he came to California in September 1968 he had a moustache and chin growth and had the same hair growth on his face on December 18, 1968, but he may not have had hair on his chin on that date. He recalled shaving the whiskers off of his chin for Bunchy Carter’s funeral in January 1969.

In respect to a safari or bush jacket, he denied having one of his own until 1969 but prior to that Bunchy Carter had one and he (Pratt) would wear Carter’s bush jacket on occasion.

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

The Ollie Taylor Incident:

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

Other Defense Testimony

In addition to several local Black Panther members testifying that they did not see defendant Pratt in the Los Angeles area for a short period of time before and after December 18, 1968, three Black Panthers testified that they saw Pratt in the San Francisco-Oaklapd Bay Area attending a series of BPP meetings and functions from about December 12, 1968, to December 26, 1968.

Defense witness Shirley Hewitt of Oakland, California, testified that in December 1968 she was a member of the BPP and that she had worked on a book with Bobby Seale for about two weeks before she started working as a secretary at the national headquarters of the BPP in Oakland on December 1, 1968. She testified that she “thinks” she saw defendant Pratt at the BPP headquarters in Oakland on Monday, December 16, 1968, when he was introduced to her by Rosemary Gross. Defendant was wearing a powder blue suit and blue suede shoes. She “thinks” she saw defendant again the following Wednesday, December 18, 1968, at David Hilliard’s house at a central committee meeting where June Hilliard (David Hilliard’s brother), John Seale, Pat Hilliard, Kathleen Cleaver, Rosemary Gross and a person called “Mojo” were also present. She testified that Pratt always wore a moustache and a goatee and his facial appearance was the same at Bunchy Carter’s funeral which she also attended.

Defense witness Jacqueline Wilcots from Richmond, California (in the Bay Area) stated that she was a member of the BPP, met Pratt in December 1968, took him to a birthday party for her cousin .on December 16, 1968, and thereafter drove him to various BPP functions in the Bay Area including several meetings at David Hilliard’s house. She took him to David Hilliard’s house “a little after dark” on December 18, 1968, and the meeting lasted “all night” and on that date defendant wore a “Fu Manchu” type of moustache down the sides of his mouth but did not have a goatee to her knowledge.

On cross-examination witness Wilcots stated that she did not know until a month before she testified that Pratt was charged with murder and did not know until the previous Friday (she testified on Monday, July 10, 1972) the specific time the murder occurred. She heard about the trial from a “sister [Renee Merritt] on the street” and voluntarily came down for the trial “to help a brother out.” To her knowledge Pratt did not have a goatee when he left the Bay Area in December 1968. She further testified that defendant’s facial hair was approximately the same in a photograph (defendant’s exhibit (B)) as when she saw him in the Bay Area and also “basically the same” as he appeared in court.

Defense witness Kathleen Cleaver came voluntarily from Algiers, Algeria, specifically to testify at the trial. She stated in December 1968 she lived in the Bay Area and was a member of the central committee of the BPP; and that she saw defendant Pratt at a series of meetings and remembers seeing him at the home of Dr. and Mrs. Shapiro and at David Hilliard’s home in Oakland where the others present were his brother, June Hilliard, his wife, Pat Hilliard, Bobby Seale, possibly Emery Douglas and members of the BSU at San Francisco State College. On cross-examination she stated that the first time she told defense counsel of her testimony was the day before she testified in the courtroom and was not even aware of the actual date of the murder until within the week before she testified.

Although the defense did not dispute that the getaway car from the murder scene on December 18, 1968, was the vehicle Pratt owned and brought into California bearing North Carolina license plates, a series of defense witnesses testified that the BPP had made payments on the getaway car and that it had become a “community car” and that those members in the Los Angeles central headquarters had access to the car including Julius Butler who had driven it on occasion.

There was defense testimony to the effect that several other members of the BPP had beige safari jackets and defendant Pratt stated that he did not purchase one until early 1969 but occasionally had worn one owned by Bunchy Carter. (A safari jacket was found in defendant’s possession similar in description to the one witnesses described as being worn by the shorter of the two gunmen.)

The defense in addition to extensive cross-examination of prosecution witnesses put on a vigorous defense directed at impeaching the prosecution witnesses’ identification of defendant in the hobby shop with particular emphasis on his facial hair on December 18, 1968. Witness Reed had prior to trial referred to defendant as “clean looking” or “clean shaven” and also stated at trial that she never recalled whether he had a goatee or moustache. A series of defense witnesses stated that defendant was never without hair on his face consisting of a moustache and chin hair. Defendant and his sister, Emelda Granger, testified that defendant cut off his chin hair for Bunchy Carter’s funeral in January 1969. Defendant’s older brother, Charles E. Pratt, Sr., also a Black Panther, testified that he helped get him into UCLA and into the dormitories under a scholarship for minorities paid for by the federal OEO. He also introduced into evidence a photograph which he said was taken the weekend following Christmas 1968 showing defendant Pratt with a thin moustache and chin hair. The trial judge also permitted defense witness Robert Buckout, an associate professor of psychology at California State College at Hayward, to testify at length to the effect that eyewitness identification is generally unreliable.

Rebuttal

The prosecution’s main rebuttal witness was Joseph Oldfield, the technical manager for Polaroid Corporation, who testified that Polaroid had a method of coding the film it manufactures to determine the date of manufacture. He testified the polaroid photograph (defendant’s exhibit (B)) which defendant’s brother, Charles E. Pratt, Sr., had testified was taken shortly after Christmas 1968 showing the condition of defendant’s facial hair could not have been taken on that date. Witness Oldfield testified that the code number on the photograph showed that the film was manufactured May 28, 1969, between 3 and 11 p.m. He further testified that company records showed that machine No. 33 which produced defendant’s exhibit (B) was not even in operation during the year 1968.

Evidence on Habeas Corpus

FBI Correspondence and Documents

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

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

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

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

This court’s analysis of pertinent correspondence and reports pertaining to the Pratt case supplied by the FBI pursuant to the FOI Act and on request of counsel prior to and subsequent to March 10, 1980, is distilled below focusing on critical dates and time frames:

In respect to December 18, 1968 (the date of the tennis court murder), there is no documentation indicating that defendant Pratt was “targeted” by Cointelpro for “neutralization.” The absence of any such documentation is consistent with the evidence which discloses that Pratt had just come to California in September 1968, enrolled as a student at UCLA, met A1 Prentice (Bunchy) Carter and joined the BPP. Pratt held no rank in the party hierarchy on that date although there is evidence that he was a bodyguard for Bunchy Carter.

Nor does the FBI documentation indicate that Julius (Julio) Butler had been enlisted by the FBI as an informant or that the FBI had any other contacts with him whatsoever as of that date.

In respect to August 10, 1969 (the date Julius Butler gave the sealed envelope to Sergeant Rice containing the letter implicating Pratt as the tennis court murderer), there are no FBI reports showing that Julius Butler was an FBI informant or that the FBI had even contacted him as of that date. To the contrary the content and tenor of FBI contacts after that date and an affidavit of Sergeant Rice dated November 19, 1979, supplied by defense counsel indicate that while FBI agents were aware of “Julio” they had no part in his (Butler’s) decision to write the letter and give it to his friend, Sergeant Rice, for safekeeping.

FBI records disclose that the FBI first contacted Butler after August 10, 1969. The content and tenor of an FBI contact with Butler on August 13, 1969 (dictated 8/14/69), indicates no prior FBI contacts and discloses Butler’s disenchantment of the BPP, his fear of death from BPP members, and that he was questioned about his possession of a .45 caliber Thompson submachine gun in violation of the National Arms Control Act.

During the trial the evidence was to the effect that Sergeant Rice requested Butler’s permission to turn the sealed letter over to his (Sergeant Rice’s) superiors to be opened because the existence of the sealed letter was known to L.A.P.D. internal security and that he (Rice) was under" investigation for an unrelated matter. (See trial evidence, ante.)

Defense trial counsel's objection to any questions about the circumstances surrounding the delivery of the letter was sustained. In support of the petition for habeas corpus before this court present defense counsel have filed with the court a declaration of Du Wayne Rice under penalty of perjury dated November 19, 1979, stating that FBI agents observed Butler hand the sealed envelope to Sergeant Rice and asked Rice what it was Butler had given him. Rice told the agents to ask Butler and they called after Butler using the name “Julio” but Butler did not respond and left the area.

Three important pieces of direct and indirect evidence point to the fact that the FBI had no part in Butler’s writing the letter or had knowledge of the contents thereof which implicated Pratt in the murder of Caroline Olsen on December 18, 1968.

First, it is noted that Julius Butler did not give the letter to the FBI but to a trusted friend (Sergeant Rice) for safekeeping only to be opened in the event of his death. Sergeant Rice’s declaration dated November 19, 1979, (see fn. 25, ante) indicates that although the FBI agents were aware that Butler was a Black Panther and that he was called “Julio” since Butler gave the letter to a friend rather than the FBI and refused to respond that the agents did not know what was contained in the letter. Furthermore, FBI records have failed to reveal any official contact with Butler on or before August 10, 1969, the first contact being on August 13, 1969.

Second, logic dictates that if the FBI with the aid of local law enforcement officers had targeted Pratt and intended to “neutralize” him by “framing” him for the December 18, 1968, murder of Caroline Olsen they would not have waited over 14 months after the letter was handed to Sergeant Rice to have the contents of the sealed letter disclosed. Moreover, Butler’s relationship with Pratt had changed dramatically as of August 10, 1969. Following the assassination of Bunchy Carter and John Huggins at UCLA the National BPP in April of 1969 had elevated Pratt to the top leadership position by naming him minister of defense of the southern California branch of the party. As of that date, as hereinbefore related, Butler had become disenchanted with the methods used by the Black Panthers and had both quit and had been expelled from the party. In addition, Butler, in fear of Pratt who had threatened his life, had given the letter to Sergeant Rice as an “insurance policy” for his (Butler’s) own protection.

Third, and foremost, it is inconceivable that the FBI agents could have obtained the “conspiratorial” aid of (a) the two eyewitnesses who positively identified Pratt; (b) witness Lachman who described the getaway car; (c) the officials in the Motor Vehicle Departments of North Carolina and California to establish that Pratt’s car was used in the murder; and (d) the aid of ballistics expert Wolfer who identified the murder weapon in order to “frame” the defendant. Nor has the defense supplied any cognizable evidence to this court which refutes the veracity or accuracy of the above evidence, all of which corroborated Butler’s testimony.

From October 20, 1970 (over 14 months after the sealed envelope was given to Sergeant Rice by Butler), when the sealed envelope was opened, to and including the date of and through the trial the FBI documents supplied do not establish that Butler either “worked” for or was an “informant” (in law enforcement parlance) for the FBI. (See discussion, infra.)

The trial evidence showed that the letter was opened because Sergeant Rice was under investigation by internal investigators of the L.A.P.D. who knew of the existence of the sealed letter and he asked Butler if he could turn it over to the investigators. Sergeant Rice’s declaration under oath dated November 19, 1979 (see fn. 25, ante) indicates that Butler also authorized Sergeant Rice to turn the sealed envelope over to the L.A.P.D. internal investigators because the FBI was “jamming him.” It would be unnatural for the FBI not to be inquisitive about the contents of the sealed envelope once aware of its existence. The FBI reports furnished this court contain information that FBI agents contacted Butler for a period of time between August 13, 1969, and April 28, 1972, first concerning his involvement in the BPP, then in connection with his violation of the National Firearm Control Act and finally relative to the propensity for racial unrest and violence in the black community. As previously noted the FBI report dated August 14, 1969, (see fn. 24, ante) shows Butler was interviewed by FBI agents and told them of his disenchantment with the BPP, his fear that he was going to be killed and the fact that he had written a letter containing information relating to an involvement of BPP members in an affair that could “put them in the gas chamber”—“but would not explain further” and “that the letter was given to a friend.” Butler then was given his rights and questioned about a .45 caliber submachine gun for an individual who he (Butler) declined to name.

An FBI report dated September 12, 1969, indicates FBI agents again contacted Butler, gave him his rights and again inquired about a .45 caliber Thompson submachine gun Butler bought in October 1968. Butler told them he disposed of the machine gun but would not elaborate because “he [Butler] did not want to ‘jam’ anyone.”

An FBI report dated October 30, 1969, shows that Butler was again contacted by FBI agents, given his rights, and questioned about the .45 caliber Thompson submachine gun at which time Butler “refused to admit that he ever owned or possessed” such a weapon and stated that “he was not admitting anything now” and refused to give any information concerning any possible violation of the National Firearms Act by himself.

An FBI report dated November 7, 1969, indicates that he was willing to provide information to the FBI on a confidential basis but that the FBI wished “to determine his potential as a PRI.”

An FBI report dated December 1, 1969, indicates that FBI agents contacted Butler on November 24, 1969. The report states: “He [Butler] advised that he heard federal authorities were checking at the Western Surplus Store to determine if he [Butler] had been purchasing weapons.” He (Butler) said if the FBI is interested, he does not even know where the Western Surplus Store was, but does own a Magnum which he purchased elsewhere.

Seven FBI reports from December 1, 1969, to April 17, 1970, with many deletions mainly referred to such matters as Los Angeles BPP membership and weaponry, e.g., that since the killing of A1 Prentice Carter new memberships in the party were allowed only on special recommendation of existing members; “that the Los Angeles BPP had tried to buy silencers for rifles and pistols” and since it was “unable to purchase them they tried to make some”; and that “an unknown source” stated that “the Oakland BPP allegedly had a rocket launcher and that Eldridge Cleaver, BPP Minister of Information, had a .50 caliber machine gun mounted on a truck.” The only mention of defendant Pratt was “that Pratt had a machine gun was common knowledge in the BPP” and that “Pratt also had a caliber .45 pistol.” There was no mention of Pratt in respect to the “tennis court murder” contained in these reports.

(The foregoing series of FBI contacts with Butler concerning their investigation of possible National Firearms Act violations in respect to his purchase and disposal of a .45 caliber Thompson submachine gun could explain Butler’s statement to Sergeant Rice that “the FBI was” putting pressure on him, and “jamming him.” [See fn. 25, ante.\)

Monthly FBI reports for the period July 31, 1970, through April 28, 1972, except the report of January 20, 1971, show FBI contacts with Butler and each contains the following general statement: “source stated that though he believes the general propensity for racial unrest and violence to exist in ghetto areas he was unaware of intended or possible outbreaks at this time.”

An FBI report dated January 20, 1971, states: “Julius Carl Butler, 2807-1/2 Hillcrest Drive, telephonically advised that he has not been affiliated with the Black Panther Party (BPP) since his expulsion in 1969. He said he knows nothing regarding an active BPP underground and has no intention of reaffiliating with the BPP.

“He stated he had furnished information implicating Elmer Pratt in a murder at Santa Monica, California, in 1968, and thought he was going to be called to testify against Pratt in the matter.

“He stated he still is employed as a beautician at 4520 West Adams, Los Angeles.”

In respect to any FBI documents indicating defendant Pratt’s whereabouts on December 18, 1968 (the day of the tennis court murder), only two were discovered which are remotely relevant to defendant Pratt’s “alibi” defense.

One report indexed under the name of Kathleen Cleaver states: “On 12/19/68, (deletion) (reliable) reported that on evening of 12/18/68, Bobby Seale stated he was going to pick up some people, not identified, including Kathleen [Cleaver] and go to the residence of (deletion) at 7:30 PM (12/18/68).” The name of the person at whose residence the people were going was later released as that of Dr. Shapiro. (See fn. 27, infra.)

The other report indexed under the name of John Jerome Huggins, Jr., states: “On 12/26/68, (deletion) a highly sensitive, reliable source, whose identity must be protected at all costs, reported that as of 12/20/68, an L.A. brother known as Gerónimo arrived in Oakland. Source further reported th