Petition — Kirschke v. California

Supreme Court, Ul. S. |

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Sen

SUPREME COURT OF THE UNITED STATES

October Term, 1975

NO. 75-1575

JACK KIRSCHKE,

Petitioner

vs.

CALIFORNIA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE

COURT OF APPEALS

OF THE

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION 1

ROGER S. HANSON, Esq.

518 South Broadway

Santa Ana, California

(714) 558-0921

GRIFFITH D. THOMAS, Esq.

3746 Limestone Place

Sherman Oaks, California

(213) 981-4433

GEORGE T. DAVIS, Esq.

1522 Vallejo Street

San Francisco, California

Attorneys for Petitioner, Jack Kirschke

SUPREME COURT OF THE UNITED STATES

October Term, 1975

NO. 75-1575

JACK KIRSCHKE,

Petitioner

vs.

CALIFORNIA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE

COURT OF APPEALS

OF THE

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION 1

ROGER S. HANSON, Esq.

518 South Broadway

Santa Ana, California

(714) 558-0921

GRIFFITH D. THOMAS, Esq.

3746 Limestone Place

Sherman Oaks, California

(213) 981-4433

GEORGE T. DAVIS, Esq.

1522 Vallejo Street

San Francisco, California

Attorneys for Petitioner, Jack Kirschke

CC EE eE.Lmnen

TABLE OF CONTENTS

Table of Authorities .............ii

PEOGMDLE ccccccccccccccccccccccceed

Opinion Below ........ TTTTTTITiT

2

DUBSGRSSCAGE ccceccevcccccececeses

Questions presented for Review....5

U.S. Constitutional Amendments....8

Statement of the Case ............10

Reasons for granting

WRIT OF CERTIORARI........2..0- cove

APGUMONE cccccccccccece eecondecces 35

Appendix .......... following 72

i . ~ssectseneeceses Sate

APPENDIX A - IN RE KIRSCHKE, 53. CAL.

App. 3d 405, 125 Cal.Rptr.

680 (Dec. 2, 1975)

APPENDIX B - IN RE KIRSCHKE, NOV.1,

1973 (Habeas Corpus)

APPENDIX C - DENIAL, PETITION FOR

REHEARING

APPENDIX D - DENIAL, PETITION FOR

HEARING

APPENDIX E - PROSECUTORIAL ARGUMENT TO

THE JURY CONCERNING POL-

ICEMAN DE WAYNE ALLEN

WOLFER

TABLE OF AUTHORITIES Napue v. Illinois 4, 7

360 U.S. 264 ¢ Se 3, @

CASE PAGE APPEARING . 1

eres eople v. Ruthford 49, 52,

14 Cal. 34a 399 , a

Alcorta v. Texas &, 8, 26

355 U.S. 28 eae a v. Sain 7, 65, 67, 70

U.S.

Blackburn v. Alabama 7 . $93 71

361 U.S. 199 United States v. Giglio 4, 8, 24

405 U.S. 150

Brady v. Maryland 6, 49, 50

373 U.S. 83

United St

Chapman v. California 7,8,24, ates Constitution

386 U.S. 18 _ 52,56 Amendment 6 g

In Re Ferguson 60,61,62 Amendment 14 9

5 Cal. 3d 525

In Re Imbler $7, 39

60 C. 2d 554

In Re Kirschke he 2c S40 @6

53 Cal. App. 3d 405 27, 33, 89

125 Cal. Rptr. 680

In Re Winship 4, 5, 6, 67

397 U.S. 358 70, 72

Mesarosh v. United States 4, 6, 24 28

352 U.S. 1 62, 63, 64

Miller v. Pate 4, 8, 24

386 U.S. 1

~iii-

Moore v. Michigan 7

355 U.S. 155

Mullaney v. Wilbur 5, 67, 72

421 U.S. 684

wiie

a ee

SUPREME COURT OF THE UNITED STATES

October Term, 1975

NO. 75-1575

JACK KIRSCHKE, PETITION FOR

Petitioner WRIT OF CERTIORARI TO

Vv. THE COURT OF APPEALS

CALIFORNIA, OF THE

Respondent STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION 1

TO THE HONORABLE WARREN E. BURGER,

CHIEF JUSTICE OF THE UNITED STATES, AND

TO THE HONORABLE ASSOCIATE JUSTICES OF

THE UNITED STATES SUPREME COURT:

COMES NOW JACK KIRSCHKE, BY HIS AT-

TORNEY, ROGER S. HANSON, ESQ., a member

of the Bar of the United States Supreme

Court, and petitions this Honorable

Court for a Writ of Certiorari directed

to the Court of Appeals of the State of

California Second Appellate District,

Division 1, to review that certain pub-

lished decision IN RE KIRSCHKE, 53 Cal.

App. 3rd 405, 125 Cal. Rptr. 680, Decem-

ber 2, 1975, denying a petition for Writ

of Habeas Corpus.

| =i-

;

Pursuant to Rule 23, Rules of the

Supreme Court of the United States, Peti-

tioner submits the following:

(a)

OPINION BELOW

The official and unofficial report

and citation of the judgment herein

sought review is IN RE KIRSCHKE 53 Cal.

App. 3rd 405, 125 Cal. Rptr. 680, Decem-

ber 2, 1975.

This opinion was rendered by Division

1 of the California Court of Appeals Sec-

ond Appellate District. A copy of this

opinion is appended as Appendix "A".

This opinion was preceded by an opin-

ion denying a Petition for Writ of Hab-

eas Corpus by the Los Angeles County

Superior Court entered November 1, 1973,

by Superior Judge Honorable George M.

Dell. This judgment was unreported in

either the official or unofficial re-

ports, and is herewith attached as

Appendix "B".

(b)

JURISDICTION

The grounds upon which the juris-

diction of this Honorable Court is in-

ajo

——-

voked are:

(i) the date that the judgment which

is sought to be reviewed was entered is

December 2, 1975;

(ii) a petition for rehearing was

made and denied on December 29, 1975 by

the Court of Appeals, Second Appellate

District, Div. 1. (Exhibit "C"). The

Supreme Court of California denied a Pet-

ition for Hearing on January 28, 1976 and

all State remedies have been exhausted.

(Exhibit "D");

(iii) the statutory provision confer-

ring jurisdiction on this Honorable Court

is 28 U.S.C. 1257 (3) which provides:

Final judgments or decrees rendered

by the highest court of a State in which

a decision could be had, may be reviewed

by the Supreme Court as follows:

..-By writ of certiorari, where the val-

idity of a treaty or statute of the Uni-

ted States is drawn in question or where

the validity of a State statute is drawn

in question on the ground of its being

repugnant to the Constitution, treaties

or laws of the United States, or where

any title, right, privilege or immunity

is specially set up or claimed under the

a3~e

O_O ES <<<

Constitution, treaties or statutes of, or

commission held or authority exercised

under, the United States. June 25, 1948,

c. 646, 62 Stat. 929.

Jurisdiction of this Honorable Court

is further invoked because the California

Court of Appeals, Second Appellate Dist-

rict Division 1, has decided several fed-

eral questions in a way not in accord

with applicable decisions of this Honor-

able Court. Napue v. Illinois, 360 U.S.

264; Alcorta v. Texas, 355 U.S. 28; Uni-

ted States v. Giglio, 405 U.S. 150;

Miller v. Pate, 386 U.S. 1; and the

cases cited therein.

Further, the state courts of Calif-

ornia in this case have decided a feder-

al question of substance not heretofore

determined by this Honorable Court, in-

sofar as whether an analogous decision

rendered by this Court is applicable to

the states as a matter of due process of

law under the 14th Amendment, within the

meaning of Mesarosh v. United States,

352 U.S. 1 and In Re Winship, 397 U.S.

358.

Jurisdiction of this Honorable Court

is further invoked inasmuch as the Court

~~

of Appeals of the State of California has

improperly refused to consider, as it must

under the decisions of this Court in In

Re Winship, 397 U.S. 358, and Mullaney v.

Wilbur, 421 U.S. 684, whether there any

longer is sufficient evidence to convince

beyond a reasonable doubt, whether Peti-

tioner is guilty of murder after new evi-

dence has been discovered and presented

which scientifically convinces that Peti-

tioner could not have killed his wife

and her lover.

(c)

QUESTIONS PRESENTED FOR REVIEW

1. Whether a criminal defendant in a

state prosecution for murder is denied

due process of law by the prosecution

falsely representing a state witness

police officer as an "expert" in medi-

cal and physical sciences and criminal-

istics, the said "expert" presenting and

adducing key and critical testimony and

courtroom demonstrations in forensic

firearms identification and post-mortem

human pathology and principles of physics

and mechanics, the key and critical por-

tions of which were false, and where,

upon demand under oath for truth about

the professional and the educational back-

groundof the said police officer, within

the meaning of Brady v. Maryland 373 U.S.

83, 87, the said police officer wilfully

negligently or inadvertently suppressed

the truth and substituted false and more

highly qualified credentials?

2. Whether a criminal defendant ina

state prosecution for murder is denied

due process of law whenever the state

presents key, critical and material false

evidence going to the guilt-innocence de-

termination and the merits of the case,

whatever the cause of said false evidence

and irrespective of whether said false

evidence is wilfully, negligently, or

inadvertently presented, and whether such

reasoning of this Honorable Court set

forth in Mesarosh v. United States, 352

U.S. 1, in its supervisory role over the

lower federal court system, shall be

applied to the states as a matter of due

process of law within the meaning of In

Re Winship, 397 U.S. 358?

Be Whether the state court record on

aZe=

appeal and the state court evidentiary

hearing evidence support the conclusion

of the California Court of Appeals that

the testimony presented by the state wit-

ness police officer who wilfully, negli-

gently, or inadvertently falsified his

credentials and his key scientific test-

imony "could not, beyond a reasonable

doubt, have affected the outcome of the

trial", within the meaning of Napue v.

Illinois, 360 U.S. 264, 269, and Chapman

v. California 386 U.S. 18, 24 (1967)?

4. Whether this Honorable Court must,

de novo, carefully examine the state re-

cord "where the fundamental liberties of

the person are claimed to have been in-

fringed", and where it is here alleged

that the state court factual determina-

tions are not fairly supported by the

record at trial and upon reference hear-

ing, within the meaning of Townsend v.

Sain 372 U.S. 293, 316; Blackburn v. Ala-

bama 361 U.S. 199, 208, 209; and Moore v.

Michigan 355 U.S. 155?

De Whether the California Court of Ap-

peals can properly apply the Federal

«Pa

a

Harmless error rule of Chapman v. Calif-

ornia 386 U.S. 18, 24 (1967) to key, ma-

terial and false prosecution evidence go-

ing to the merits of the case, which was

achieved by either wilfully, negligently

or inadvertently falsifying key scienti-

fic evidence and educational background

of the proponent state witness or whether

the applicable decisions of this Honor-

able Court require a reversal of the con-

viction, per se, without recourse to any

harmless error rule, within the meaning

of Napue v. Illinois 360 U.S. 264, 269;

Alcorta v. Texas 355 U.S. 28; Miller v.

Pate, 386 U.S. 1; Giglio v. United States,

405 U.S. 150?

(d)

UNITED STATES CONSTITUTIONAL AMENDMENTS

INVOLVED

Sixth Amendment-

"In all criminal prosecutions, the

accused shall enjoy the right to a speedy

and public trial, by an impartial jury

of the state and district wherein the

crime shall have been committed, which

district shall have been previously as-

~ een ocala”

certained by law, and to be informed of

the nature and cause of the accusation;

to be confronted with the witnesses a-

gainst him; to have compulsory process

for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his

defense."

Fourteenth Amendment-

"All persons born or naturalized in

the United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No state shall make or en-

force any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law;

nor deny to any person within its juris-

diction the equal protection of the laws."

(e)

STATEMENT OF THE CASE WITH FACTS MATERIAL

TO THE CONSIDERATION OF THE QUESTIONS

PRESENTED:

1. Petitioner JACK KIRSCHKE was a dep-

uty Los Angeles County District Attorney

in April, 1967.

2. He was married to ELAINE TERRY KIR-

SCHKE, and they lived at 185 Rivo Alto

Canal, Naples, Long Beach, California.

5. In the early morning hours of 2:30

a.m., Saturday, April 8, 1967, ELAINE

TERRY KIRSCHKE was shot to death in her

own bed at the home. With her, and sim-

ilarly shot to death, was one ORVILLE

WILLIAM (BILL) DRANKHAN, 41, a reported

romantic companion of Elaine.

4. Both Elaine and Bill were killed by

apparent .38 caliber gun shot wounds, a

single bullet in the brain of each, con-

stituting the cause of death.

S. No direct evidence whatsoever was

ever adduced at trial to establish the

identity of the killer; no direct evi-

dence linked this petitioner to the kil-

lings and all competent, direct evidence

-10-

exonerated this petitioner.

6. On Monday, April 10, 1967, at about

7:90 a.m., Petitioner KIRSCHKE was arrest-

ed on the interstate highway leading from

Las Vegas, Nevada, to Los Angeles, by the

California Highway Patrol, and ultimately

charged with the killings. He was return-

ing from a weekend Rotary Convention that

he attended in Las Vegas, Nevada.

Ve He was indicted by the Los Angeles

County Grand Jury in mid summer, 1967,

and was tried that fall and convicted of

both killings following a nationally pub-

licized trial.

8. A death sentence returned by the

jury was set aside in August, 1968 by

the trial judge, the Honorable Kathleen

Parker, and a life sentence was imposed.

9. An appeal taken to the California

Court of Appeals resulted in affirmance

of the conviction on July 28, 1972, in

an unpublished opinion.

10. No direct evidence linked KIRSCHKE

to the killings, and an extensive fact-

ual and scientifically based alibi devel-

oped through professional witnesses and

total strangers, scientifically and fact-

elie

ually exonerated KIRSCHKE, he being on

the road to Las Vegas, Nevada in an auto-

mobile at the time the killings occurred,

and at the time the killer moved the dead

body of Orville Drankhan, he was in Las

Vegas, Nevada.

THE MEANING & CONSEQUENCES OF HUMAN POST-

MORTEM LIVIDITY IN THIS CASE:

ll. The bodies of Elaine and Bill were

found in the Kirschke bedroom about 8:00

p.m. on the evening of Sunday, April 9,

1967 by the Kirschke's upstairs neighbor

George F. Cornell, and his son-in-law,

one James Miller.

+e Elaine was nearly nude and was

found laying on her back on the bed.

B3- Bill was fully clothed and was

found laying on his stomach beside the

bed.

14. Human post mortem lividity, or

livor mortis, is the gravitational de-

scending of the blood into the skin cap-

illaries of the most dependent area of

the dead human body which commences after

heart stoppage; it leaves the area of

the body into which it descends a cherry-

ro ee eee a Se 1: Mebe

>, Rivets

o1 20

red color.

is. In the typical human body, lividity

is first discernible after about 2 hours

following death, but if the body is then

mechanically reversed, the blood will

drain out of the initial area into the

skin capillaries of the opposite side of

the body, which is now dependent follow-

ing the body's reversal.

16. If the body lays undisturbed for a

minimal length of time, generally con-

ceded to be at least 6 hours, or by some

authorities 8 to 12 hours, the lividity

will not disappear as the blood has be-

come permanently fixed in the original

area due to chemical changes in the pro-

tein of the blood cells; reversal of the

body after 6-8-12 hours will not then be

accompanied by a migration of the blood

from its original situs in the dependent

skin capillaries to the skin capillaries

of the opposite side of the body.

Eve Fixed, permanent, irreversible

post mortem lividity is a certain means

of ascertaining that a body died in a

given position, laid in that position

for at least 6-8-12 hours, and if found

=} Se

in a position not compatible with that

position expected from the location of

the fixed, irreversible lividity, it is

certain means of ascertaining that some

other live person moved the body after

the minimal time of 6-8-12 hours had e-

lapsed, or that some non-human “phenome-

non" caused the body to move.

18. The body of Orville "Bill" Drankhan

was found on its stomach. It had fully

fixed and permanently set post-mortem

lividity on its back, conclusively es-

tablishing that the body had lain on its

back for at least 6 hours after death,

and was thereafter turned over by either

a human source or a non-human “phenomenon”

19. The body of Elaine was found on its

back and had the expected post-mortem

lividity on its back.

THE TESTIMONY OF KEY PROSECUTION WITNES-

SES CALLED TO TESTIFY AT TRIAL CONCERNING

THE TIME OF THE SHOOTING OF ELAINE & BILL:

20. A neighbor of the Kirschkes testi-

fied that she was walking her dog past

the Kirschke apartment about 9:30 p.m.

on Friday, April 7, 1967. Because of

-14-

i

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5

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:

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the large non-curtained window, she saw

Elaine and Bill alive and conversing in

the Kirschke living room.

21. Another neighbor walked past the

same large window about 10:30 p.m.

That neighbor saw Elaine, Bill, and a

third person alive in the Kirschke home.

No evidence was adduced to ascertain even

the sex of that third person, and the

prosecution could not establish the iden-

tity of that third person whatsoever.

22. A host of prosecution witnesses

placed Elaine and Bill alive, dancing

and drinking at the Long Beach Yacht

Club, a short 12-15 minute car drive or

walking time from the Kirschke home,be-

tween 11:00 p.m. on Friday, April 7, 1967

through the closing of the club about

1:00 a.m. on Saturday, April 8, 1967.

23. George Franklin Cornell and his

wife Betty were awakened from their

sleep in their bedroom in their apart-

ment by loud noises, arguing between

people below in the Kirschke flat, and

apparent banging around of furniture.

The alarm clock beside the bed indicated

2:15 a.m. Unable to sleep, Cornell a-

a}Ge

rose, lit a cigarette, and smoked it

while sitting on his bed.

24. At 2:30 a.m. 2 loud reports rang

out. While the prosecutor elicited from

his own witness that “maybe the clock in-

dicated either 1:30 a.m. or 3:30 a.m.",

in general the best indication of the

time of the shooting was 2:30 a.m. on

Saturday, April 8, 1967, which was es-

tablished by the foregoing prosecution

wittnesses.

25. Mrs. George Cornell essentially

corroborated her husband's testimony.

26. At a little before 4:00 a.m., a

downstairs neighbor in an adjacent home

became ill and went to his bathroom.

27. While sitting on his toilet stool,

he saw the light go out in the adjacent

bedroom of Petitioner Kirschke's home.

He looked at his watch. The time was

4:00 a.m., Saturday, April 8, 1967.

28. At circa 8:30 a.m., Saturday, April

8, 1967 one Bob Lancaster, a bell-hop at

the Las Vegas, Nevada, Stardust Hotel

checked Petitioner Kirschke into Room 415.

The Rotary Convention attended by Peti-

tioner Kirschke headquartered at this

-16-

hotel.

29. It is 4 hours and 32 minutes in

driving time from Long Beach, California

at the home of Petitioner to the stardust

Hotel in Las Vegas, Nevada, allowing 6

minutes for a gas stop.

30. Since petitioner was found in Las

Vegas at 8:30 a.m., the prosecution con-

cedes that he could not have been in

the Long Beach home at any time after

4:00 a.m. on Saturday, April 8, 1967.

31. Petitioner drove from the Los

Angeles International Airport area to

Las Vegas, Nevada by Volkswagon auto-

mobile during the early morning of

April 8, 1967, at the same time that

the killing occurred.

32. For a shooting that occurred at

2:30 a.m. until, under the theory of

the prosecution, a mandatory death

scene departure time of 4:00 a.m., at

which time the prosecution conceded

that Petitioner Kirschke must have

departed the home to drive to Las

Vegas to get there by 8:30 a.m., is

but 1-1/2 hours, even assuming that

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2

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death occurred instantaneously.

33. One and one-half hours is a scien-

tifically impossible time for the livid-

ity to permanently fix in the back of

Bill Drankhan to allow Petitioner to move

the body just before he was alleged to

depart the death scene, under the pro-

secution's theory of the case, at 4:00a.m.

34. Under all recognized medical auth-

orities, the body of Drankhan could not

be moved for at least 6 hours, i.e., not

before 8:30 a.m., the exact time that

Petitioner was checking into a Las Vegas,

Nevada hotel some 390 miles and 4 1/2

hours away.

35. It is conclusively shown and sci-

entifically shown therefore, that if a

human being caused the movement of the

Drankhan corpse, it could not be Peti-

tioner Kirschke.

luistory shows that gun shot wounds in

the human brain often fail to cause im-

mediate death; Abraham Lincoln lingered

for many hours in a cheap room across

the street from Ford's Theatre; Senator

Robert F. Kennedy remained alive for over

a day in Los Angeles following his shoot-

ing on June 4, 1968.

—y™=

36. It was the trial defense argument,

supported by qualified pathologists and

criminalists and conceded by the prose-

cution "that dead bodies do not move",

unaided by human beings doing the moving,

and that the killer remained in the home

and had moved the body after lividity had

fixed, or had returned to the crime scene

to move the body.

In any event, then, Petitioner Kirschke

was scientifically unable to be the killer

of Elaine and Bill because of the lividity

fixation time juxtaposed with the Los

Angeles-Las Vegas driving time, unless

it could be shown that the body moved

by itself by a "phenomenon".

THE PROSECUTION'S ANSWER TO HOW THE DEAD

BODY OF ORVILLE"BILL" DRANKHAN MOVED LONG

AFTER DEATH; THE WILFUL, NEGLIGENT, OR IN-

ADVERTENT FALSIFICATION OF THE EDUCATION-

AL QUALIFICATIONS AND THE SCIENTIFIC TEST-

IMONY OF LOS ANGELES POLICE OFFICER DE

WAYNE ALLEN WOLFER.

37 Conceding that “dead bodies don't

move", the prosecution recognized that

unless they could demonstrate that the

219=

—— SE a—<x<———— Sl

dead body of Orville "Bill" Drankhan moved several hours after death because "fluid

many hours after death by a "phenomenon", shifts" in the dead body cause a shift in

Petitioner Kirschke was conclusively and the "center of gravity" and thus cause

scientifically innocent of the killing of the body to move.

his wife and Orville "Bill" Drankhan. 40. At a 3 week (March-April, 1973) evi-

38. In testimony covering several trial dentiary hearing ordered by the Califor-

days and several hundred pages of trans- nia Court of Appeals, it was demonstrated

cript, the prosecution presented one De- that:

Wayne Allen Wolfer, a Los Angeles police- (a) DeWayne Wolfer did not take a

man, who falsely qualified as an "expert" course at U.S.C. where he tot-

witness in human body dynamics, post-mor- ally and completely dissected

tem "fluid shift", human anatomy, engin- a human cadaver;

eering, acoustics and physics. (b) he falsified his educational

39. State agent policeman Wolfer falsely _ background in the foregoing area;

testified that he had taken a course in (c) no such "fluid shifts" occur in

human anatomy at the Zoology Dept. at the dead human body due to the

University of Southern California wherein reasons proffered by policeman

he as well as every student registered Wolfer, and hence no such "ex-

therein, was assigned to, and did totally planation" can exist for move-

and completely, dissect a human cadaver; ment of dead bodies.

that because of this training as well as 41 The Los Angeles Superior Court,

other alleged formal courses in anatomy Honorable George M. Dell, Judge, in de-

and physiology, he was qualified to test- nying relief by Habeas Corpus (Exhibit

ify; that thereafter he did testify for "B") excused this false key prosecution

several days as a key rebuttal witness | evidence as the result of a "bad memory"

at Petitioner's trial in falsely demon- or "ignorance" on the part of the state

strating how dead human corpses moved witness, police officer DeWayne Wolfer.

-20- o2i-

42. The California Court of Appeals ac-

knowledged this key and false testimony

to be testimony "negligently false", "bor-

dering on perjury", or at the very least

"given with a reckless disregard for the

truth". (125 Cal. Rptr. 680, 685; 53 Cal.

App. 3rd 405, Exhibit "A", herewith at-

tached).

43. The California Court of Appeals,

however, erroneously concluded that the

foregoing testimony "could not beyond a

reasonable doubt have affected the out-

come of the trial", because it "did not

concern the heart of the matter". (125

Cal. Rptr. 680, 685; 53 Cal. App. 3rd

405, Exhibit "A". herewith attached).

44, Contrary to the California Court of

Appeals, the credibility of policeman

Wolfer was a key, material issue in the

case; the means and methods by which the

dead body did or did not move many hours

after death was the key issue in the case,

and constituted many days of testimony

and many hundreds of pages of trial tran-

cript. It was recognized by the prosecu-

tor to be the key issue and was used by

the prosecutor to circumvent the key de-

o22e

fense alibi that Petitioner Kirschke was

driving to Las Vegas at the time the

shooting occurred, and was in Las Vegas

at the hotel at the time the killer moved

the dead body of Orville "Bill" Drankhan.

45. In the Argument, and Appendix there-

to, in this Petition for Certiorari, we

set forth representative prosecutorial

argument to the jury to show just how the

prosecutor utilized the false evidence

and faise credibility and educational

background of policeman DeWayne Allen

Wolfer to achieve the illegal conviction

of Petitioner Jack Kirschke for the mur-

der of his wife Elaine and Orville W.

Drankhan.

46. Judicial opinion in Exhibits "A"

and "B" to this Petition now recognizes

the false educational background and the

false evidence given on the merits of

the "fluid shift" as it was used to ex-

plain how the dead body moved.

47. The sole issue therefore is the

materiality of this false prosecution

evidence, and whether the Court of Ap-

peals is correct in concluding that the

false evidence in no way contributed to

o23e

the conviction within the meaning of

Chapman v. California 386 U.S. 18, 24

(1967), or alternately, whether a harm-

less error rule is to be applied at all,

within the meaning of Mesarosh v. United

States, 352 U.S. 1. See also Napue v.

Illinois, 360 U.S. 264, 269; Miller v.

Pate, 386 U.S. 1; Giglio v. United States,

405 U.S. 150 and Alcorta v. Texas, 355

U.S. 28.

THE FALSE ACOUSTICS TESTIMONY PROPOUNDED

BY POLICEMAN DEWAYNE ALLEN WOLFER:

48. The prosecutor tried to advance

the time of death to an earlier hour to

allow more time for lividity to form in

the dead body of Drankhan, and to attempt

to circumvent the alibi of Petitioner

Jack Kirschke.

49. Again using policeman DeWayne Allen

Wolfer, the prosecutor falsely qualified

Wolfer as an “expert” in the acoustics

of gun silencers.

50. Using this false testimony, Wolfer

falsely testified that the shooting oc-

curred as early as 1:30 a.m. and was un-

heard at that time because a "muffler"

from a Briggs & Stratton lawn mower en-

o234e

gine was used to fire the death weapon

through. (This is a physical and scien-

tific impossibility). In this way, police-

man Wolfer testified that "80 to 90 deci-

bels of sound" could be attenuated from

the report of the hand gun used to kill

Petitioner's wife and Drankhan.

Wolfer falsely then testified that 2

loud reports heard by the upstairs neigh-

bors at 2:30 a.m. were the body of Dran-

khan rolling from the bed, striking a

nearby door, loudly slamming it shut, and

then the body striking the floor of the

apartment.

51, At the evidentiary hearing ordered

by the Court of Appeals, it was estab-

lished that policeman DeWayne Wolfer did

not know nor understand the meaning of

the term “decibel” in acoustics and was

ignorant in the basic rudiments of sound

transmission and gun silencers.

52. Concerning this key, false and

material falsification of educational

background enabling policeman Wolfer to

qualify as an expert on the acoustics of

gun silencers, the Superior Court excused

226

it as mere "ignorance", (Exhibit "B");

the Court of Appeals labelled it as "neg-

ligently false” (Exhibit "A", 125 Cal.

Rptr. 680, 685; 53 Cal. App. 3rd 405.)

53. The Court of Appeals grossly errs

in its opinion denying relief when it

states that the acoustical testimony

"could not, beyond a reasonable doubt

have affected the outcome of this trial”

by serving to abrogate and circumvent a

factually true and unique defense alibi

supported by some half dozen witnesses

who were total strangers to this Petition-

er, and who placed him at distances of

several hundred miles from the death scene

at the time of the killings.

It is absolutely false that the key

material and false acoustics testimony

"pertained to essentially irrelevent mat-

ter and beyond a reasonable doubt could

not have affected the outcome of the

trial". (Exhibit "A" 125 Cal. Rptr. 680,

685, 53 Cal. App. 3rd 405, herewith at-

tached. )

THE FALSE BALLISTICS EVIDENCE PROPOUNDED

BY POLICE OFFICER DEWAYNE WOLFER:

o26<

> eo as

$$. Police officer Wolfer fa'’sely qual-

ified as an "expert" in forensic firearms

identification.

56. Testifying at Petitioner's trial

that the murder weapon was Petitioner's

gun "and no other gun:‘in the world", Wol-

fer supported this now known false evi-

dence by false ballistics enlarged photo-

graphs depicting alleged matches on the

bullets, and these photographs are now

judicially recognized and are known to

' depict physically impossible bullet iden-

tifications.

57. The Court of Appeals once claimed

that the bullet identification evidence

was the most significant evidence in the

case, (unpublished July 28, 1972 opinion)

and now excuses its established falsenes”

as the product of nothing “other than an

honest mistake" (Exhibit "A", 125 Cal. |

Rptr. 680, 684-685, 53 Cal. App. 3rd 405)

58. The significant key, false ballis-

tics oral trial evidence infected this

conviction and with the wilfully prepar-

ed false ballistics identification pho-

tographs, the prosecution achieved a

conviction violative of this Court's

=27Je

reasoning in Mesarosh v. United States,

352 U.S. 1.

59. The prosecutor argued long and loud-

ly to the jury that the ballistics evi-

dence showing the death weapon to be Pe-

titioner's gun “and no other gun in the

world" established Petitioner's guilt

beyond peradventure, although no evidence

ever placed Petitioner's finger on the

trigger.

In the ARGUMENT and accompanying

appendix, we set forth excerpts from the

prosecutor's argument to the jury showing

the permeating, ubiquitous effect that

the prosecutor created with the false

ballistics evidence.

THE DEFENSE ALIBI CONCLUSIVELY ESTABLISH-

ING PETITIONER'S INNOCENCE, PROPOUNDED BY

SOME HALF DOZEN TOTAL STRANGERS, PLACING

PETITIONER MANY MILES FROM THE DEATH

SCENE AT THE TIME THE SHOOTING OCCURRED:

60. Petitioner narrated a unique alibi,

the details of which were given spontan-

eously to California Highway Patrolman

Troy Richmond when Richmond arrested

Petitioner circa 7:00 a.m., Monday, April

=29-

10, 1967 near Victorville, California on

Petitioner's return from his long weekend

in Las Vegas at the Rotary Convention.

61. Petitioner Kirschke's alibi was ver-

ified by and supported by some half-dozen

witnesses, and in general each witness

was called either by the defense or the

prosecution, and each verified that Peti-

tioner was at the location in question at

or about the time Petitioner claimed he

was there.

62. Speaking broadly, the defense sought

to establish that Petitioner, KIRSCHKE,

could not have carried out the killing

because of a detailed alibi placing him

elsewhere at the key times of the killing

and events connected therewith, to wit:

(1)

(2)

Robert Zimmerman, a Long Beach

fireman, placed KIRSCHKE at

Hof's Hut Restaurant in the

Long Beach Marina between 7:30

- 8:00 p.m. on Friday, April 7,

1967 (R.T.A. 5873).

Janice Wise worked at Hof's Hut

that evening, talked with KIR-

SCHKE. (R.T.A. 5888).

-29-

(3)

(4)

(5)

Jack Ferrar was a bartender at

an airport satellite bar at L.A.

International Airport; on Friday,

April 7, 1967 he saw Petitioner

JACK KIRSCHKE "several times"

between 8:30 p.m. and 11:00-

1130 p.m. at his bar, and had

served him drinks. Farrar, no

friend of Petitioner KIRSCHKE,

saw KIRSCHKE leave the bar "a-

round 11:00 to 11:30" p.m. on

the evening of Friday, April 7,

1967.

Vera Judd, (R.T.A. 5930, ££)

along with a companion and her

small son, saw Petitioner at

L.A. International Airport be-

tween 10:15 p.m. and 11:00 p.m.

when Petitioner stopped the

little boy from running away,

and briefly spoke to the child.

Peggy Jean Peterson was a wait-

ress at Denny's Restaurant in

San Bernadino, who testified to

seeing Petitioner KIRSCHKE in

that restaurant between 12:30

and 2:00 a.m. on Saturday, April

-30-

(6)

(7)

8, 1967. (Petitioner had left

the airport circa 11:30 p.m.

and drove to San Bernardino, on

his way to Las Vegas by car and

had stopped at Denny's for an

order of wheat toast and saus-

age; Miss Peterson, a total

stranger am no personal friend

of KIRSCHKE, verified his pres-

ence in that restaurant at a

time compatible with his stated

stop for food on his way to Las

Vegas, Nevada.)

Dennis Bailey, 19, placed Peti-

tioner at a Yermo, California

Standard Oil Gas Station, pur-

chasing gas between 2:30 a.m.

and 3:30 a.m., a time totally

incompatible with Petitioner

being in Naples carrying out a

2:30 a.m. ambush assassination.

(R.T.A. 6132-6161).

Jean Ledet, like Bailey, saw

KIRSCHKE at the gas station in

Yermo before 4:90 a.m. on April

8, 1967, making it impossible

for Petitioner to make the Na-

a3he

ples-gas station distance between

2:30 a.m. and 4:00 a.m., and thus

eliminating him as the killer.

Ledet & Bailey, attendants at the

gas station, were total strangers

to KIRSCHKE, and owed him no

allegiance.

(8) Bobby Lancaster was a bell-hop

at the Stardust Hotel in Las Ve-

gas. About 8:30 a.m. on Satur-

day, April 8, 1967, Lancaster

checked KIRSCHKE into Room 415,

receiving a dollar gambling chip

from the Desert Inn Hotel as a

tip. KIRSCHKE had gotten to the

Desert Inn at sunrise, had gam-

bled there, and had retained a

chip which he gave to Lancaster.

It is of paramount importance that

following Petitioner's arrest about 7:00

a.m. on Monday, April 10, 1967, by Cal-

ifornia Highway Patrolman Troy Richmond,

near Victorville, Petitioner spontan-

eously related the foregoing unique al-

ibi covering his activities from 5:00

p.m. Friday, April 7, 1967 through 7:00

a.m. on Monday, April 10, 1967. Peti-

~32e

tioner had never seen Zimmerman, Ferrar,

Judd, Peterson, Bailey, Ledet, or Lancas-

ter at any time in his life previous to

Friday evening and early Saturday morning

and never saw them all day Saturday or

Sunday April 9, 1967. Petitioner could

never have "programmed" them to lie for

him by contacting them before the killings

nor could he have contacted them after the

killings, for he was seen in Las Vegas

periodically on Saturday and Sunday at

the Rotary Convention.

Faced with this unique and detailed

alibi, all of these witnesses were inter-

viewed by the State, and eventually test-

ified either for the prosecution or de-

fense, verifying the alibi.

(£)

REASONS FOR GRANTING WRIT OF CERTIORARI

(1) The constitutional errors herein as-

serted to exist were presented first to

the Supreme Court of California by a Pe-

tition for Habeas Corpus filed June, 1972;

(2) That Court transferred the Writ to

the California Court of Appeals, Second

Appellate District, Division 1, where the

-33-

direct appeal was then pending, with the

explicit and direct order to consider the

allegation of the Writ in conjunction

with the Direct Appeal;

(3) The California Court of Appeals re-

fused to do so, affirming the direct con-

viction but issuing an Order to Show

Cause on the Writ Allegations both on

July 28, 1972;

(4) At an evidentiary hearing held in

March and April, 1973 the allegation of

this Petition for Certiorari were proven

factually.

(5) On November 1, 1973, the Superior

Court denied relief solely because it

found that it was not established that

the testimony of policeman Wolfer was

“perjured". The Superior Court found it

to be "error," or the “result of a bad

memory", or “ignorance”. See Exhibit "B"

herewith attached;

(6) On or about January 13, 1975, a re-

newed and enlarged Petition for Writ of

Habeas Corpus was filed in the Court of

Appeals, Second Appellate District, al-

leging each and every one of the consti-

tutional errors herein contained in this

a%4e

Petition for Certiorari;

(7) On December 2, 1975 that Court ruled

in the opinion set forth as Exhibit "A",

IN RE KIRSCHKE, 53 Cal. App. 3rd 405, 125

Cal. Rptr. 680 (1975);

(8) On December 29, 1975 the Court of

Appeals denied a Petition for Rehearing.

(Exhibit "C");

(9) On January 28, 1976, the California

Supreme Court denied a Hearing. (Exnibit

"Dp").

The foregoing is presented in satis-

faction of Rule 23 (f) Rules of the

Supreme Court of the United States.

THE CALIFORNIA COURT OF APPEALS HAS

DECIDED A FEDERAL QUESTION OF SUBSTANCE

IN A WAY NOT IN ACCORD WITH APPLICABLE

DECISIONS OF THIS HONORABLE COURT IN

HOLDING THAT KEY,CRITICAL, MATERIAL EVI-

DENCE, AFFECTING NOT ONLY THE MERITS OF

A CRIMINAL CONVICTION BUT ALSO AFFECTING

THE CREDIBILITY OF A KEY STATE WITNESS,

WHICH IS FALSIFIED BY AGENTS OF THE STATE,

-35-

DOES NOT DENY DUE PROCESS OF LAW AND CAUSE

A REVERSAL OF THE CONVICTION.

The conviction of Petitioner JACK KIR-

SCHKE was achieved by totally circumstan-

tial evidence, without one iota of direct

evidence being adduced to show that he

killed his wife ELAINE and her companion

ORVILLE W. "BILL" DRANKHAN.

In fact, direct evidence adduced by

the defense in the form of Petitioner's

statements as to his whereabouts at the

time of the killing was verified by no

less than 7 independent citizen witnesses

who were total strangers to JACK KIRSCHKE.

These 7 witnesses testified to Petition-

er's presence at locations ranging from

40 miles to 360 miles from the murder

scene at times critical in this case, and

Petitioner was placed over 200 miles from

the crime scene at the time of the shoot-

ing by witnesses who were total strangers

to him and thus not beholding to or bias-

ed in favor of him.

Further, scientific evidence now a-

vailable conclusively shows that Peti-

tioner JACK KIRSCHXE could not have car-

a36-

Bet et ar Ot dat a's

:

3

|

x

i

)

ried out the killing of his wife and her

companion.

Anomalously, California state courts

refused to set aside this conviction

even though it was achieved by prosecu-

tion perjury, suppression of evidence,

and negligent use of key, material, and

false evidence going to the heart of

the issues in the case; and dually

affecting the credibility of its key

witness, a Los Angeles police officer,

DeWayne Allen Wolfer.

The following relative defense vs.

prosecution time-table heralds the

critical importance of the key material

and false prosecution evidence:

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The foregoing table clearly shows

that Petitioner defended with an alibi of

unique nature which was verified by at

least 7 witnesses without a scintilla of

bias in favor of Petitioner.

The alibi conclusively showed that

Petitioner could not have carried out the

killing of his wife and Drankhan because

of the following:

(R.T.A. = Reporter's Transcript on Appeal)

l. The dead body of Orville "Bill"

Drankhan exhibited fixed, permanent post-

mortem lividity in its posterior; it was

found on its stomach conclusively estab-

lishing that it had been moved at least

6-8-12 hours after death, at a time that

Petitioner Kirschke could not have been

on the death scene.

2. Petitioner Kirschke was established

to be in Las Vegas, Nevada at 8:30 a.m.

on Saturday, April 8, 1967, having driven

there by automobile.

3. Prosecution evidence established a

minimum driving time of 4-1/2 hours,

conclusively establishing that Kirschke

must have left the death scene at the

latest at 4:00 a.m.

-46-

4. The shooting occurred at 2:30 a.m.,

but 1-1/2 hours elapsed from 2:30 -4:00

a.m., a scientifically insufficient time

for lividity to permanently fix in the

posterior of the Drankhan corpse. How

then could Kirschke move the body before

he departed at 4:00 a.m.?

Se Scientifically a human being must

have moved the body and it could not have

been Kirschke but must have been the true

killer. Someone not the killer inadver-

tently entering the home and discovering

the body would not move it but would log-

ically call the police and report the

killing. No such evidence exists to show

the presence of some 3rd party or Kirschke.

6. The only way the prosecution could

explain the movement of the dead body at

a time that Petitioner Kirschke was in

Las Vegas was by a “phenomenon", which

they did via a falsely qualified, false-

ly represented Los Angeles police offi-

cer, DeWayne Allen Wolfer.

Wolfer was called to the stand by

the prosecutor and was asked a series of

questions to which he gave false answers,

wilfully perjuring himself on his edu-

a4Fo

cational background and thus falsely en-

hancing his credibility. Moreover, he

gave false scientific evidence going to

the merits of the case in that he "ex-

plained" that the dead body moved because

of "fluid shifts" of "all of the body flu-

ids", due to cell wall disintegration al-

lowing "all" of the inter/intra-cellular

fluid to migrate to a "new center of gra-

vity", causing the body to move.

Such evidence was either wilfully,

negligently or inadvertenly false and

went to the key issue in the case of ex-

plaining how the dead body moved, and

thus enabled the prosecutor to argue to

the jury that Petitioner's well-document-

ed and verified alibi was false, and it

did not matter that Petitioner had es-

tablished his presence in Las Vegas when

the body was moved--for "the body moved

itself"!:!

Ve Wolfer suppressed the truth of his

educational background, wilfully substi-

tuting false and much more qualified ed-

ucational credentials, as he testified

under oath. This is an express violation

of the mandates of this Honorable Court

-48-

CELE? 6 BRS DEe wade ae

cd gta ie Yen

Pye da itansbath: wecen ei a

in Brady v. Maryland 373 U.S. 83, 87.

It would, of course, have been favor-

able to Petitioner had Wolfer admitted

his lack of qualifications and it was ob-

viously harmful to Petitioner to have him

substitute false credentials in place of

the suppressed true facts.

We follow with the applicable Fed-

eral and State law developed by this

Court and the Supreme Court of California

which governs the wilful, negligent, or

inadvertent use of false, material, and

key prosecution evidence.

This exact material was presented to

the state courts of California and we

represent it here:

THE APPLICABLE LAW

I

",..The jury's estimate of the truth-

fulness and reliability of a given wit-

ness may well be determineative of guilt

or innocence...”

Napue v. Illinois 360 U.S. 264, 269,

3 L.Ed. 2d 1217, 79 S.ct. 1173; People

v. Ruthford, 14 Cal. 3rd 399, 407.

We are here focusing attention on

the key prosecution witness, state rep-

resentative policeman De Wayne Allen

-49-

Wolfer, who has been adjudicated at both

the Superior Court and Court of Appeals

“Tevel “to have presented "negligently

false" evidence, evidence "bordering on

perjury", or evidence at least given

"with a reckless disregard for the truth".

Il

When the defense team requests evi-

dence under oath from a state representa-

tive witness at a criminal trial, which

would be favorable to the accused if

truthfully presented, the suppression of

the truth with a substitution of harmful

and false evidence in its place is a de-

nial of due process of law, when that

evidence is material to guilt or punish-

ment, irrespective of the good faith or

bad faith of the prosecution.

Brady v. Maryland, 373 U.S. 83, 87,

10 L.Ed. 2d 215, 83 S.Ct. 1194.

In Brady, the High Court said:

"We now hold that the suppression by

the prosecution of evidence favorable to

an accused upon request violates due pro-

cess where the evidence is material ei-

ther to guilt or to punishment, irrespec-

tive of the good faityn or bad faith of

the prosecution.

-50-

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The principle of Mooney v Holohan is

not punishment of society for misdeeds of

a prosecutor but avoidance of an unfair

trial to the accused. Society wins not

only when the guilty are convicted but

when criminal trials are fair; our sys-

tem of the administration of justice suf-

fers when any accused is treated unfairly.

An inscription on the walls of the Depart-

ment of Justice states the proposition

candidly for the federal domain: 'The

United States wins its point whenever

justice is done its citizens in the courts.'

A prosecution that withholds evidence on

demand of an accused which, if made avail-

able, would tend to exculpate him or re-

duce the penalty helps shape a trial that

bears heavily on the defendant. That

casts the prosecutor in the role of an

architect of a proceeding that does not

comport with standards of justice, even

though, as in the present case, his action

is not "the result of guile," to use the

words of the Court of Appeals. 226 Md,

at 427."

IIt

Under California law, it does not

make any difference whether the material

evidence that is suppressed is done so

wilfully, negligently, or inadvertently

when it is done by a state agent repre-

sentative who is testifying on a material

-5l-

point on an issue of materiality; if the

suppressed evidence affects directly the

question of guilt, the degree or amount

of prejudice is not to be weighed or

measured by the federal harmless error

rule of Chapman v. California, 386 U.S.

18, 24, 17 L.Ed. 2d 705, 87 S.Ct. 824,

24 A.L.R. 1065; if the suppressed evid-

ence affects directly the question of

guilt, the sole question is materiality,

and if found material, the judgment of

conviction must be reversed.

In People v. Ruthford, 14 Cal. 3rd

399, 406, Chief Justice Wright, speaking

for a unanimous Court, said:

"We note, preliminarily, that when

the evidence which is suppressed or other-

wise made unavailable to the defense by

conduct attribtable to the state bears

directly on the question of guilt our

initial inquiry is whether such conduct

resulted in denial of a fair trial. If

so, the judgment of conviction must be

reversed without weighing the degree of

the prejudice to the accused. (Pyle v.

Kansas (1942) 317 U.S. 213, 216 (37 L.Ed.

214, 216, 63 S.Ct. 177]; People v. Kiihoa,

supra, 53 Cal. 2d 748, 754; see also In

Re Imbler (1963) 60 Cal. 2d 554, 567,

[35 Cal. Rptr. 293, 387 P. 2d 6], wherein

we stated: 'Moreover, suppression by the

state of material evidence alone deprives

a defendant of due process of law.') It

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is necessary in such circumstances, of

course, that the materiality of the evi-

dence suppressed or otherwise not disclos-

ed be examined in order that we may judge

whether an accused has been fairly tried,

but that examination is one which goes to

the question of the evidence rather than

prejudice to the accused.”

In the case at bar, DeWayne Allen Wol-

fer suppressed from the defense the fol-

lowing matters which went directly to the

merits of the case in that Wolfer's test-

imony assertedly "destroyed KIRSCHKE'S

alibi" and "explained" how the dead body

of Orville Drankhan rolled from its death

bed several hours after it had died and

KIRSCHKE had allegedly departed from the

murder scene:

(1) Wolfer suppressed the fact that

he did not even understand the

meaning of the concept of "cen-

ter of gravity," when he presen-

ted key and false scientific

evidence to explain how the

"center of gravity" shifted be-

cause of so-called "fluid shifts"

in the dead body. In a subse-

quent deposition in a Civil Case

he admitted that he did not know

=$3-

(2)

how to define it, and under oath

at the evidentiary hearing held

in March and April, 1973, Wolfer

admitted under oath not knowing

how to calculate it. This was

false testimony given at trial

in aid of his demonstration how

the dead body moved, directly

affecting the guilt determina-

tion process.

Wolfer suppressed the fact that

his "fluid shift" testimony was

based upon his fantasizing over

what he thought might be happen-

ing in a dead human body upon

death, based upon his looking

at corpses at homicide scenes

and at morgues, and instead of

presenting the truth he substi-

tuted the false evidence that

his expertise was obtained by

his study of all types of ana-

tomy and physiology courses at

the University of Southern Cal-

The truth was admit-

ted at the March & April, 1973

evidentiary hearing; the key

ifornia.

-54-

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false evidence was presented at

trial.

(3) Wolfer suppressed at trial the

fact that he did not even know

nor understand the meaning of

the acoustic term "decibel" when

he purported to explain the si-

lencing of a hand gun by either

a towel or a Briggs & Stratton

lawn mower engine muffler. This

key false evidence has been ad-

judicated to be "negligently

false" by the December 2, 1975

opinion of the Court of Appeals.

The key acoustics testimony and the

key center of gravity and anatomy and

post-mortem "fluid shift" testimony went

directly to the merits of the case on

material points in the area of prosecu-

tion countering of the key defense alibi,

and hence, bore, at trial, directly on

the issue of guilt, and thus is not sub-

ject to application of any harmless error

rule.

",...The judgment of conviction must

be reversed without weighing the degree

of prejudice to the accused..." Ruthford,

14 Cal. 3rd 399, 406-407.

= {=

IV

If the suppressed evidence bears only

on the credibility, the Federal Harmless

Error Rule of Chapman v. California 386

U.S. 18, 24 is to be applied; however,

where, as here, the suppressed evidence

is a suppression of the truth about ed-

ucational credentials and qualifications,

with a substitution of false and more

qualified achievements, it has already

been determined that a suppression of

material evidence affects the credibility

of a state representative witness, and

that it “might affect the judgment of

the trier of fact", and hence the out-

come of the trial.

In People v. Ruthford, 14 Cal. 3rd,

399, 407, the California Supreme Court

said: |

"As in the case of the suppression

of evidence which bears directly on the

question of an accused's guilt, the sup-

pression of material evidence bearing on

the question of the credibility of the

key witness for the prosecution has also

been the case in language of denial of

a fair trial. ..."

This court went on to say:

“We conclude that the suppression of

-56-

substantial material evidence bearing on

the credibility of a key prosecution wit-

ness is a denial of due process within

the meaning of the Fourteenth Amendment.

Although the denial is not one attributa-

ble to error by the court we nevertheless

judge its prejudicial effect and whether

defendant is entitled to relief therefrom

in the same manner as in the case of fed-

eral constitutional denials resulting

from error by the court. An accused,

accordingly, is entitled to relief in

such circumstances unless we can declare

a belief that the denial "was harmless

beyond a reasonable doubt." (Chapman v,.

California (1967) 386 U.S. 18, y be

Ed. , 710-711, 87 S.ct. 824, 24

A.L.R. 3d 1065].) We read the language

Of Napue and Giglio as not Placing a

heavier burden on the state than that im-

posed by Chapman, and we elect in the in-

terest of an evenhanded application of

the law to follow the Chapman rule when

confronted with all denials of federal

constitutional dimensions even if Napue

and Giglio propose a less stringent rule..

However, it is well conceded that

Wolfer played the key role in "destroying

the alibi" of KIRSCHKE by his false key

scientific evidence and Surely his cred-

ibility thus was in issue.

As the California Supreme Court said

in IN RE IMBLER, 60 Cal. 2d 554, 564-565,

Fn. 2:

"As to Costello's trial testimony re-

=8Fe

garding his college education, the referee

found 'that the foregoing false testimony

does not constitute perjury as defined by

the Penal Code of the State of California

(§ 118, 125) in that said testimony was

not given as to any fact material to the

essential issues involved in the trial of

Petitioner Imbler.' (No finding was made

as to Costello's trial testimony regard-

ing the number of his felony convictions.)

False testimony concerning the credibility

of a witness is material, however, and may

the basis of a conviction for perjury.

(People v. Barry, supra; People v. Lem You

Supra; People v. Low Ying, supra.) Argu-

sie Costello's SuaUGtLanAT Eoltiovensnts

are technically immaterial to show reha-

bilitation from insanity, but in a per-

jury case, “the ordinary test of materi-

ality is whether the testimony given

could have probably influenced the tri-

bunal before which the cause was being

tried. ..." (People v. Barry, 153 Cal.App.

2d 193, 209 [314 P.2d 531]; accord People

v. Di Giacomo, 193 Cal.App.2d 688, 695-700

(14 Cal. Rptr. 574]; People v. Macken, 32

Cal.App. 2d 31, 41 [89 P.2d 173]; People

v. Dunstan, 59 Cal.App.574, 584 [211 P.

813].) This testimony ‘could have prob-

ably influenced’ the jury to consider

Costello rehabilitated after his Capacity

and competence as a witness had been put

into question on cross-examination."

The falsification of educational cred-

entials have surely placed Wolfer in a

more prestigious elevation in the eyes of

the jury, hence, enhanced his credibility,

-58-

and “could have probably influenced" the

jury to believe him over the key defense

witnesses, Gerald K. Ridge, M.D., LeMoyne

Snyder, M.D., and William Harper, all of

whom said that the body could not move

from the bed unaided by human forces.

This block of testimony went to the

key alibi area of the case, hence to the

issue of guilt determination, as well as

to the general overall credibility of

policeman Wolfer.

Because of People v. Ruthford's equa-

ting of wilful with inadvertent with

negligent suppression of key evidence,

the following analysis from IN RE IMBLER,

60 C.2d 554, 564-565

"Fasle testimony

is here applicable:

affecting a witness's

credibility is perjured if wilfully given

(People v. Barry, 63

Cal. 62, 64-65;

People v. Lem You Ying, 20 Cal.App. 2d

39, 42-43 [66 P.2d s1tI , and such testi-

mony would require that the conviction

be overturned if representatives of the

state had knowledge of its false nature

and if it might have

affected the out-

come of the trial (see Napue v. Illinois,

360 U.S. 264, 269-270 [ sce. Lilde 3

L.Ed. 2d 1217]; People v. Savvides, 1 N.

Y. 2d 554, 557 [ N.Y.S. » 23S

N.E. 2d 853]). {[[6b]] Petitioner, how-

ever, failed to prove knowledge of these

-59-

falsehoods by representatives of the

state. No evidence was introduced at the

reference hearing to show that any per-

son connected with the prosecution knew

of Costello's educational background. ...

In the case at bar, the false testi-

mony affecting Wolfer's credibility was

“bordering on perjury" or was given "with

a rec’ less disregard of the truth," but

it matters little under Ruthford, supra.

It was given by a state agent, and under

fn. 2 at 60 C. 2d 554, 564-565, it might

have affected the outcome of the trial.

In California, the state must affirm-

atively divulge favorable evidence to the

defense. As the Supreme Court said in

IN RE FERGUSON, 5 C. 3rd 525, 531:

"The search for truth is not served

but hindered by the concealmnent of rel-

evant and material evidence. Although

our system of administering criminal

Justice is adversary in nature, a trial

is not a game. (3) Its ultimate goal is

the ascertainment of truth, and where

furtherance of the adversary system comes

in conflict with the ultimate goal, the

adversary system must give way to reason-

able restraints designed to further that

goal.

i4) Implementation of this policy re-

quires recognition of a duty on the part

»f the prosecution to disclose evidence

o the defense in apprcpriate cases.

>) It is settled that the intentional

Suppression of material evidence upon

request denies the defendant a fair trial.

(Brady v. Maryland, 373 U.S. 83, 87 [10

L.Ed. ; -219, 83 S.Ct. 1194]; In

Re Lessard, 62 Cal. -2d 497, 508 [42 Cal.

Rptr. 583, 399 P.2d 39]; In Re Imbler, 60

Cal. 2d 554, 567-570 (35 Cal.Rptr. 293,

387 P.2d 6]; People v. Kiihoa, supra, 53

Cal. 2d 748, 752; In Re Razutis, Cal.

2d 532, 535 [219 P.2d 15]; McCullar v.

Superior Court, 264 Cal.App. 2d 1, 7170

Rptr.21].) The good or bad faith of the

prosecutor is not determinative. Brad

v. Maryland, supra, 373 U.S. 83, 87.)..."

Where, as here, there was ample de-

fense “which might have caused a differ-

ent verdict," the materiality of Wolfer's

false evidence going to the merits of the

case as well as to his credibility can-

not be doubted.

Moreover, learning of Wolfer's fals-

ification of his qualifications in the

key medical anatomy area could well have

led to an exposure of his falsification

of the key ballistics evidence.

IN RE FERGUSON, 5 Cal. 3rd 525, 533

speaks to both of the above:

"In considering the materiality of

the evidence, we must look to the entire

record because materiality can only be

determined in the light of the circum-

stances. Thus we must consider not only

the other evidence of guilt but also any

«Zio

other defense evidence which might have

caused a different verdict. In eng oma

where, as here, it is apparant 2 a

disclosure of the evidence conceale Ww .

have logically led to other ae

othér evidence which has been found ae

the trial must also be considered. a

basis of the rule requiring pong ma y

the prosecution, as we have seen, 1s _

the defendant may otherwise be penn a

of a fair trial, and thus we must cones

all of the matters bearing on the ultim i

ate question of the fairness of the trial.

Hence, the falsification of the key

ballistics evidence is reachable by col-

lateral attack as is made evident by

Ferguson, supra.

THE APPLICABLE AND GOVERNING

LAW ENUNCIATED UNDER THE SUPERVISORY ROLE

OF THIS HONORABLE COURT OVER THE LOWER

FEDERAL COURTS CONCERNING FALSE AND MA-

TERIAL EVIDENCE SHOULD NOW BE MADE A

MATTER OF FEDERAL DUE PROCESS OF DUE,

BINDING ON THE STATES.

In Mesarosh v. United States, the

United States Supreme Court vacated a

Federal criminal conviction because false

governmental evidence was used at the

trial on a material point, without worry-

ing about what may have caused that false

-62-

evidence. 352 U.S. 1, 1 L.Ed. 2d 1 77

SoCe. i.

In Mesarosh, a debate centered over

whether certain false testimony was the

result of perjury or was the result of

the witness being a lunatic.

Clearly seeing that the result was

the same to the criminal defendant irre-

spective of whether the key, material

false evidence was caused by perjury or

was the result of a mental illness, the

High Court of the United States reversed

the conviction. Some of its reasoning

is appropos of the case at bar: (352 U.S.

1, 9):

"Either this Court or the District

Court should accept the statements of the

Solicitor General as indicating the un-

reliability of this Government witness.

The question of whether his untruthful-

ness in these other proceedings consti-

tuted perjury or was caused by a psychi-

atric condition can make no material dif-

ference here. Whichever explanation

might be found to be correct in this re-

gard, Mazzei's credibility has been whol-

ly discredited by the disclosures of the

Solicitor General. No other conclusion

is possible. The dignity of the United

States Government will not permit the

conviction of any person on tainted tes-

imony. This conviction is tainted, and

«63

tan

there can be no other just result than to

accord petitioners a new trial.

On harmless error aspects of perjury

or false evidence going to a material

point, the High Court said: (352 U.S. 10):

" ..Here, on the other hand, in a

criminal case, the original finder of fact

was a jury. The district judge is not the

proper agency to determine that there was

sufficient evidence at the trial, other

than that given by Mazzei, to sustain a

conviction of any of the petitioners.

Only the jury can determine what it would

do on a different body of evidence, and

the jury can no longer act in this case..."

In disposing by reversing the convic-

tion, the High Court said:

"Mazzei, by his testimony, has poison-

ed the water in this reservoir, and the

reservoir cannot be cleansed without first

draining it of all impurity. -++Pollution

having taken place here, the condition

should be remedied at the earliest oppor-

tunity. ...The government of a strong.

and free nation does not need convictions

based upon such testimony. It cannot

afford to abide with them. ..."

We note that this Honorable Court in

Mesarosh v. United States, 352 U.S. l,

reversed the conviction no matter what

was the cause of the false and material

testimony.

as a matter of due process of law, bind-

ing on the state courts.

Under Townsend v. Sain, 372 U.S. 293,

316, this Honorable Court is required to

examine carefully de novo the state re-

cord "where the fundamental liberties of

the person are claimed to have been in-

fringed".

This Court said at 372 U.S. 213, 316:

"This Court has consistently held

that state factual determinations not

fairly supported by the record cannot be

conclusive of federal rights. Fiske v.

Kansas, 274, U.S. 380, 385, 71 L.Ed. 1108,

1110, 47 S.Ct. 199, 208, 209, 4 L.Ed. 24

242, 249, 80 S.Ct. 274. Where the funda-

mental liberties of the person are claim-

ed to have been infringed, we carefully

scrutinize the state-court record. See

e.g. Blackburn v. Alabar (US) supra;

Moore v. Michigan, 355 U.S. 155, 2 L.Ed.

167, 78 S.Ct. oe The duty of the Fed-

eral District Court on habeas is no less

exacting."

We assert that the California Court

of Appeals has not correctly recognized

and evaluated the consequences of the

false testimony propounded by Los Angeles

police officer DeWayne Allen Wolfer. The

state court factual determinations and

the legal and constitutional consequen-

-65-

ces flowing therefrom are simply not sup-

ported by the state trial and reference

hearing transcripts.

In Appendix "E" we set forth excerpts

from the final argument of the prosecutor

showing what the prosecutor believed were

the consequences of the testimony of Los

Angeles policeman DeWayne Allen Wolfer.—

It is clear that the prosecutor con-

tended that "...when DeWayne Wolfer is

through testifying I don't think anybody

in this courtroom believed somebody hung

around that house for 2 hours in order

to throw Bill Drankhan off the bed..."

(R.T.A. 9423-9424) :

We refer this Honorable Court to

Appendix "E" of this Petition to be con-

vinced just how permeating the false

Wolfer testimony became and how virulent

its effect became on the jury because of

the prosecutor's argument.

II

IN VIEW OF THE NOW DEMONSTRATED KEY

FALSE STATE EVIDENCE INTRODUCED AT TRIAL,

AND IN VIEW OF THE ABSENCE OF PROBATIVE

DIRECT EVIDENCE AT TRIAL IN ANY EVENT,

~66-

BECAUSE OF THE DEMONSTRATED ERRORS OF

SCIENTIFIC FACT THE CONVICTION OF THIS

PETITIONER CAN NO LONGER BE SAID TO BE

BASED ON EVIDENCE THAT CONVINCES BEYOND

A REASONABLE DOUBT WITHIN THE MEANING OF

IN RE WINSHIP, 397 U.S. 358 AND MULLANEY

V. WILBUR, 421 U.S. 684.

In conjunction with the combined man-

dates of Townsend v. Sain, 372 U.S. 293,

requiring this Honorable Court to scrut-

inize the state record with diligence

(372 U.S. 293, 316), and in accord with

In Re Winship, 397 U.S. 358, we assert

that an examination by this Honorable

Court at the present time would convince

that little evidence exists in this case

whatsoever to indicate that Petitioner

committed the killings.

Initially, no direct evidence ever

existed.

Secondly, what direct evidence was

presented indicated Petitioner to be sev-

eral hundred miles from the crime scene

at the time of the killings and at the

time the killer moved the corpse of

Drankhan.

-67<

Thirdly, the prosecution was able to

achieve the conviction with perjured or

false material evidence itself a denial

of due process of law.

Fourthly, the prosecution achieved its

conviction by falsely presenting a falsely

qualified policeman representing him to

be an expert in science, human anatomy,

physiology, physics, acoustics and other

related areas; in fact, he was unquali-

fied in all of them, but falsified his

credentials in order to testify.

Fifthly, the California courts now

recognize this false evidence and admit

its falseness, leaving as a sole issue

whether this false evidence went to a

material issue in this case.

We assert that the unbiased mind

studying this record must conclude that

Los Angeles policeman Wolfer:

(a) was a key material witness;

(b) was a person whose credibility

at trial was a key, material issue;

(c) was a key witness who presented

false key evidence going to the merits of

the guilt-innocence determination process;

=68-

(d) was a state called witness whose

false evidence and perjury directly falls

on the shoulders of the prosecution whe-

ther the prosecutor personally knew of

the false evidence or whether he dia not.

California Appellate law has an in-

teresting bifurcated line of reasoning

which is calculated to deny due process

to a criminal defendant. When a crim-

inal defendant discovers false prosecu-

tion evidence and brings it to the at-

tention of the court by a Writ of Habeas

Corpus filed while the direct egeeei is

still viable, the Court of Appeals wil-

fully ignores the writ although commanded

to so consider it in conjunction with the

direct appeal. The Court of Appeals then

affirms the direct appeal conviction

failing to evaluate the consequences of

the errors set forth in the Writ on the

Direct Appeal.

In the opinion resolving the Writ,

the Court then states: (125 Cal.Rptr. 680,

687, 53 Cal. App. 3rd 405):

"The remainder of Kirschke's petition

seeks further review of issues decided

adversely to him on appeal or which could

have been, but were not, included in the

-69-

Appeal. Those issues are not available

on collateral attack. In Re Shipp, 62

Cal. 2d 547, 552, 43 Cal. Rptr. 3, P.

2d 571." ,

The California Court of Appeals can

take credit itself, fully and completely,

for bifurcation of the issues of this

case when it wilfully disobeyed the com-

mand of the State Supreme Court to con-

sider the allegations of the Writ in con-

junction with the direct appeal.

Under Townsend v. Sain, 372 U.S. 293,

316, this Court must now consider integ-

rally these errors. Townsend provides:

"This Court has consistently held

that state factual determinations not

fairly supported by the record cannot

be conclusive of federal rights. Fiske

v. Kansas, 274 US 380, 385, 71 L.Ed.

1108, 1110, 47 S.Ct. 655; Blackburn v.

Alabama, 361 US 199, 208, 209, 4 L.Ed.

2d 242, 249, 80 S.Ct. 274. Where the

fundamental liberties of the person are

claimed to have been infringed, we care-

fully scrutinize the state-court record.

See, e.g., Blackburn v. Alabama (US)

supra; Moore v. Michigan, 355 US 155, 2

L.Ed. 2d 167, 78 S.Ct. 191. The duty of

the Federal District Court on habeas is

no less exacting...”

In Re Winship, 397 U.S. 358, 364 pro-

vides:

"Moreover, use of the reasonable

-70-

doubt standard is indispensable to com-

mand the respect and confidence of the

community in applications of the criminal

law. It is critical that the moral force

of the criminal law not be diluted by a

Standard of proof that leaves people in

doubt whether innocent men are being con-

demned. It is also important in our

free society that every individual going

about his ordinary affairs have confidence

that his government cannot adjudge him

guilty of a criminal offense without con-

vincing a proper factfinder of his guilt

with utmost certainty.

Lest there remain any doubt about the

constitutional stature of the reasonable-

doubt standard, we explicitly hold that

the Due Process Clause protects the ac-

cused against conviction except upon

proof beyond a reasonable doubt of ever

fact necessary to constitute the crime

with which he is charged. "

We assert that the conviction of this

Petitioner is not based on competent ev-

idence that convinces beyond a reasonable

doubt, and that standard must apply de

novo to state post appellate Writs of

Habeas Corpus as a matter of due process

of law.

We thus present for due process anal-

ysis whether the "guilt beyond a reason-

able doubt" standard must be applied, de

novo, to state post appellate processes.

Townsend v. Sain, 372 U.S. 293, 316;

-7l-

|

EE —_—

In Re Winship, 397 U.S. 358, 364, and

Mullaney v. Wilbur, 421 U.S. 684 convin-

ces that this Honorable Court must de

novo examine the instant record to ascer-

tain whether there is any substantial

evidence to convince the neutral mind in

support of the conviction of this Peti-

tioner beyond a reasonable doubt.

We pray that Certiorari be granted

to resolve the serious constitutional

issues presented herein.

Respectfully submitted,

ROGER S. HANSON,

GRIFFITH D. THOMAS,

GEORGE T. DAVIS

Attorneys for Petitioner,

JACK KIRSCHKE

oF2e

APPENDIX A

IN RE KIRSCHKE

53 Cal. App. 3rd 405, 125 Cal.Rptr. 680

(Dec. 2, 1975)

STATE OF CALIFORNIA

COURT OF APPEALS, SECOND DISTRICT

DIVISION 1

In Re JACK KIRSCHKE

on Habeas Corpus

The PEOPLE,

Plaintiff & Respondent

Vv.

JACK KIRSCHKE,

Defendant & Appellant

APPEARANCES

Roger S. Hanson, Woodland Hills, Calif.

Griffith D. Thomas, Sherman Oaks, Cal.

George T. Davis, San Francisco, Cal.

Attorneys for the Appellant

Evelle J. Younger, Attorney General

Jack R. Winkler, Chief Asst. Attorney

General

Edward P. O'Brien, Asst. Attorney

General

Clifford K. Thompson, Jr., Deputy

Attorney General

Attorneys for the Plaintiff

—

THOMPSON, Associate Justice.

"A jury found petitioner Jack Kirschke

guilty of two counts of murder for the

killing of his wife and her lover and

found the murder to be of the first de-

gree. We affirmed the resulting judg-

ment of conviction in an unpublished

opinion (Criminal No. 16044) and the

judgment became final upon denial of

Kirschke's petition for hearing to the

Supreme Court. In these collateral

attacks upon the judgment, Kirschke

asserts that it should be vacated for

error of constitutional dimension which

denied him a fair trial. He contends:

(1) the conviction is the product of

false testimony of DeWayne A. Wolfer,

a criminalist employed by the Los

Angeles Police Department, who, at

trial, supplied damaging expert

testimony on ballistics, acoustics,

and anatomy;

(2) Kirschke was ineffectively repre-

sented by trial counsel;

(3) newly discovered evidence refutes

prosecution evidence at trial which

Ee

A-1

undermined Kirschke's attempt to

establish an alibi and otherwise

points to his innocence;

(4) various issues decided against him

On appeal were wrongly decided; and

(5) various other issues which could have

been raised on appeal, but which were

not, compel vacation of the judgment.

We conclude that while Wolfer negli-

gently presented false demonstrative

evidence in support of his ballistics

testimony, Kirschke had ample opportun-

ity to rebut the demonstrative evidence

at trial so that the negligently false

evidence is not a basis for collateral

attack. (In Re Manchester, 33 Cal.2d 740,

742, 204 P.2d 881; In Re Waltreus, 62

Cal.2d 218, 221, 42 Cal.Rptr. 9, 397 P.24

1001, cert. den. 382 U.S. 853, 86 S.Ct.

103, 15 L.Ed.2d 92.) We conclude further

that while Wolfer's acoustical testimony

was false and while his testimony on

qualifications as an expert on anatomy

was also false and borders on the per-

jurious, the opinion evidence given by

Wolfer dealing with acoustics and anat-

A-2

$04 + Bota -

a i

omy pertained to essentially irrelevant

matter and beyond a reasonable doubt

could not have affected the outcome of

the trial. Finally, we conclude there

is no showing of ineffectiveness of trial

counsel as a demonstrable reality (People

v. Reeves, 64 Cal.2d 766, 774, 51 Cal.Rptr.

691, 415 P.2d 35), that Kirschke has not

shown any newly discovered evidence, and

thathe is barred from raising on collat-

eral attack issues that were decided or

could, if raised, have been decided on

appeal. (In Re Shipp, 62 Cal.2d 547,552,

43 Cal.Rptr.3, 399, P.2d 571, cert. den.

382 U.S. 1012, 86 S.Ct. 623, 15 L.Ed.2d

528.) Accordingly, we deny the relief

sought by petitioner.

TESTIMONY AT TRIAL

In essence, the evidence at trial

established Kirschke's motive and oppor-

tunity to kill. The victims were Kir-

schke's wife and her lover, killed on

the Kirschke bed while apparently en-

gaged in sexual activity. Kirschke had

shown great, although private, resent~-

ment at the notorious nature of his

A-3

wife's affair because of its potential

to frustrate his efforts to secure a ju-

dicial appointment from a newly elected

governor whom he had vigorously supported.

An exculpatory statement of Kirschke to

investigators of the crime in which he

attempted to establish an alibi was

proved false. Kirschke attempted to show

his presence at the Los Angeles airport

at a critical time by oral reference to

a parking receipt containing a time stamp.

Investigation showed that the receipt

could not have been issued at the time

stated by Kirschke.

The circumstantial weight of motive

and opportunity was buttressed by evi-

dence of the murder weapon. The victims

were killed by shots for a .38 caliber

gun. A revolver of that caliber had been

released to Kirschke after he, as a dep-

uty district attorney, had successfully

prosecuted a defendant who had used it

in a crime. Kirschke admitted that the

revolver was kept loaded in a bed table

next to the murder bed. While the revol-

ver was missing after the murder and was

never found, cash and other small items

A-4

of considerable value in plain sight in

the bedroom remained after the killings.

A statement by Kirschke to his secretary

after the murders indicated his desire

to suppress evidence that the revolver

existed.

The .38 caliber revolver released to

Kirschke had, in the past, been subjected

to ballistic examination and test bullets

had been fired from it. DeWayne Wolfer,

a criminalist employed by the Los Angeles

Police Department having qualified as an

expert in ballistics, expressed his opin-

ion that the earlier test builets so mat-

ched the murder slugs that the .38 cali-

ber revolver and no other in the world

was the murder weapon. Wolfer illustra-

ted his opinion by enlarged photographs

of the test and murder bullets. While

Kirschke had employed his own ballistics

expert who examined the test and murder

bullets at length and who was present

at counsel table while Wolfer was ques-

tioned on direct and cross-examination,

no question was raised by Kirschke at

trial concerning the validity of the

A-5

photographs. The defense expert om bal-

listics did not testify.

A sideshow developed at trial. Post-

mortem lividity on the body of the male

victim indicated that his bedy had rested

on its back on the bed for at least two

hours after death, while the body was

discovered face down on the floor beside

the bed. Bloodstains on a wall indicated

that the body had rolled from the bed.

The defense hypothesized that the killer

had moved the body after death at a time

which tended to support Kirschk's alibi

although by no means to establish it.

To counter the hypothesis, the prosecu-

tor recalled Wolfer, this time qualifying

him as an expert in anatomy and acoustics

as well as ballistics.

Wolfer's acoustical testimony theor-

ized that the murder weapon may have been

silenced with a towel or a lawn mower

muffler in a fashion which would have

prevented its discharge from being heard

so that witness reports of loud noises

in the early morning hours may have re-

ferred to the falling body rather than

gunshots.

A-6

i

Wolfer qualified as an expert on an-

atomy by reference to his university ed-

ucation. He testified that, as an under-

graduate, he had taken a course in human

anatomy in which he and another student

had dissected a cadaver from top to bot-

tom. Having qualified as an expert,

Wolfer expressed his opinion that a

shift of body fluids after death could

have so altered the center of gravity of

the body as to cause it to roll from the

bed. To emphasize its theory, and un-

doubtedly to present a dramatic con-

clusion to its case, the prosecution con-

ducted an in-court demonstration of the

Wolfer theory. The murder bed, round

in shape, was brought into the courtroom

and placed before the jury. A male

and female police officer acted the part

of the victims of the crime while the

path of the murder bullets was traced.

The male officer then rolled from his

back on the bed, landing face downwards

beside it.

A jury found Kirschke guilty of two

counts of first degree murder. On ap-

peal from the judgment based upon the

A-7

verdict, we concluded that the prosecu-

tion's demonstration was questionable

rebuttal but that error, if any, inherent

in it was harmless. We considered and

rejected 17 other contentions of error

and affirmed the conviction.

HEARING ON ORDER TO SHOW CAUSE

Concurrently with his appeal to this

court, Kirschke filed a petition for

habeas corpus and coram vobis with the

Supreme Court. The high court trans-

ferred the petition to us and we issued

an order to show cause returnable in

the Los Angeles Superior Court where the

case had been tried. Judge George Dell

of that court conducted an extensive

evidentiary hearing on the petition and

denied the petition.

Pursuant to In Re Hochberg, 2 Cal.3d

870, 873-874 fn. 2, 87 Cal.Rptr. 681,

471 P.2d 1, we have made our independent

examination and appraisal of the evidence

taken in the superior court. That inde-

pendent examination and appraisal leads

us to the same factual conclusions drawn

by Judge Dell.

A-8

ee

ee ee

a

Re Ra i ee a ee ee

Evidence produced at the hearing on

the order to show cause established that

the enlarged photographs of the test and

murder bullets used by Wolfer to demon-

strate his opinion that the bullets were

fired from the same gun do not do so.

The evidence convinces, however, that

the error is not deliberate. Wolfer

compared the bullets under a microscope,

reaching his conclusion of identity of

weapon. He interrupted his work and

returned later to take the photographs.

The error is established as due to the

interruption.

Court appointed firearms experts,

testifying at the order to show cause,

were of the opinion that the .38 caliber

revolver released to Kirschke may have

been the murder weapon. They were not

able to make a positive identification

because "fine identifying individual

characteristics which are apparent in

(the) photographs are now obscured or

removed by what appears to be a combin-

ation of oxidation and wear.

Evidence on Wolfer's educational

A-9 Sm...

qualifications in anatomy, resting upon

his dissection of a cadaver, is con-

flicting. While Wolfer's "memory may

not be correct", the evidence does not

establish that he “actually lied about

his dissection experience." "It is

manifest that Wolfer knew very little

about what he was talking about when he

explained the shifting of 'body fluids’

and undertook to explain the quantum of

sound reduction that could be achieved

by use of a silencer on a handgun."

The evidence, however, falls short of

establishing that Wolfer actually lied

in expressing his anatomical and acous-

tical opinion.

The evidence on the order to show

cause does not demonstrate that Kirschke's

trial counsel was ineffective. Kirschke

argued the ineffectiveness from his

counsel's asserted failure to have his

own examination of the death and test

bullets. He did not, however, call

trial counsel as witness.

A-10

BALLISTICS TESTIMONY

Kirschke argues that the demonstra-

tive evidence in the form of the enlarged

photographs of the test and murder bull-

ets is perjurious, requiring that the

judgment be overturned. He argues ai-

ternatively that if the error in the

evidence is nevligent or inadvertent

rather than perjurious, the judgment

must nevertheless be vacated because

the negligent or inadvertent use of

demonstrative evidence prepared by an

agent of the state is the equivalent

of the suppression of evidence favorable

to the accused within the meaning of

People v. Ruthford, 14 Cal.3d 399, 121

Cal.Rptr. 261, 534 P.2d 1341, and In Re

Ferguson, 5 Cal. 3d 525, 96 Cal.Rptr.

594, 487 P.2d 1234.

"A judment of conviction based on

testimony known by representatives of

the state to be perjured deprives the

defendant of due process of law....and

may be attacked on habeas corpus....

In making such an attack, however, (the)

petitioner must establish by a prepon-

derence of the evidence that perjured

A-1l

testimony was adduced at his trial..."

(In Re Imbler, 60 Cal.2d 554, 560, 35

Cal.Rptr. 293, 296, 387 P.2d 6, 8, cert.

den. 379 U.S. 908, 85 S.Ct. 196, 13 L.Ed.

2d 181.) "An honest error in expert

opinion is not perjury even though fur-

ther diligence and study might have re-

vealed the error." (In Re Imbler, supra

60 Cal.2d at p. 567, 35 Cal.Rptr. at 300,

387 P.2d at 12.) Here Kirschke failed

to establish by a preponderance of the

evidence that Wolfer's error in prep-

aration of the enlarged photographs was

anything other than an honest mistake.

(1) Negligent presentation of false

prosecution evidence is also a basis

for habeas corpus, but only if it re-

sults in a denial of a fair trial. "Un-

less (the) negligence has obstructed

the defendant in challenging the case

against him, it is not a ground for

collateral attack." (In Re Imbler, supra

60 Cal.2d at p. 567, 35 Cal.Rptr. at p.

300, 387 P.2d at 13; see also In Re

Manchester, supra, 33 Cal.2d 740, 742

204 P.2d 881; In Re Waltreus, supra, 62

A-12

Cal. 2d 218, 221, 42CalRptr. 9, 397 P.2d

1001). Here the negligence of Wolfer

in the preparation of the demonstrative

evidence did not obstruct Kirschke's ab-

ility to challenge the case against him.

The test and murder bullets were avail-

able to Kirschke and his expert through-

out the trial and were previously made

available on a discovery motion. (See

In Re Imbler, supra, 60 Cal.2d at p.567,

35 Cal.Rptr. 293, 387 P.2d 6.) For rea~

sons of his own, Kirschke's trial coun-

sel did not elect to call the defense

ballistics expert as a witness.

(2) Kirschke argues that the rule

of Imbler and related cases has been

impliedly overturned by In Re Ferguson,

supra, 5 Cal.3d 525, 96 Ca.Rptr. 594,

487 P.2d 1234, and People v. Ruthford,

supra, 14 Cal.3d 399, 121 Ca.Rptr. 261

534 P.2d 1341, holding that the supp-

ression by the prosecution of evidence

favorable to the accused may deny due

process of law whether the failure to

to disclose the evidence is deliberate

negligent, or inadvertent. Ferguson

A-13

and Ruthford are not inconsistent with

Imbler. Suppression of evidence favor-

able to a defendant of necessity obstructs

the ability of the defense to challenge

the prosecution's case. Negligently

erroneous testimony of a state agent

does not obstruct the defendant's abil-

ity to defend where, by discovery or

otherwise, he is afforded the means to

establish the error in the testimony.

(3) We thus conclude that Wolfer's

negligent error in preparing the en-

larged photographs used to buttress his

Opinion testimony does not support

Kirschke's collateral attack upon the

judgment against him.

ACOUSTICS & ANATOMICAL TESTIMONY

Kirschke attacks Wolfer's testimony

on the acoustics of silencers as per-

juriously or negligently false and mounts

the same offense against Wolfer's opinion

of change in a dead body's center of

gravity based upon postmortem fluid

shift plus Wolfer's testimony on his

qualifications to give the opinion.

A-14

(4,5) Unquestionably, Wolfer's opinion

testimony on acoustics and anatomy was

negligently false. His testimony of his

educational qualifications borders on

perjury and is, at least, given with a

reckless disregard for the truth. False,

or even perjurious, prosecution testimony

is an adequate ground for collateral

attack, however, only when it "may have

affected the outcome of the trial." (In

Re Imbler, supra 60 Cal.2d 554, 560, 35

Cal.Rptr. 293, 296, 387 P.2d 6,8.) Here

the acoustical and anatomical testimony

could not, beyond a reasonable doubt,

have affected the outcome of the trial

go that it does not support Kirschke's

collateral attack upon the judgment.

(See People v. Ruthford, supra, 14 Cal.

3a 399, 408, 121 Cal.Rptr. 594, 487 P.2d

1234). The testimony did not concern

the heart of the matter. The prosecu~

tion's very strong although circumstan-

tial case was made when it established

Kirschke's motive, his resentment of

the notoriety of his wife's affair, his

opportunity , his false alibi, and his

possession of the murder weapon. The

A-15

«

Wolfer testimony on ac

merely exemplifies Pree. as tactical

error in overtrying a good case by means

not adding to its Strength. As indicated

in our opinion on appeal (Criminal No

16044), Kirschke's alibi is far from |

tablished if the sounds heard early —

the morning hours Surrounding the murder

are treated as gunshots. The manner i

which the body of the male victim aie

from the bed after two hours rest upon

it Similarly adds or detracts nothin

from the case. At most, it is an aie

plained phenomenon which is virtually

irrelevant to Kirs

chke's guilt

pr or inno-

NEWLY DISCOVERED EVIDENCE

In support of the coram vobis aspects

of his petition, Kirschke asserts that

newly discovered evidence compels vaca-

tion of the judgment against him. As

best we can distill the 142-page peti-

tion, the "newly discovered evidence"

asserted by Kirschke is:

(1) evidence that Wolfer falsified

his educational background;

A-16

S and anatomy

ee? SSS SSS SS

2 =

== owe

2 ea $e ee a

(2) evidence that the ballistic pho-

tographs are erroneous;

(3) evidence obtained in a deposition

in an unrelated case that Wolfer is "fully

and absolutely ignorant of literally doz-

ens of basic terms and principles in the

fields of mechanics, physics, acoustics,

and mathematics" and is unable to com-

pute a center of gravity; and

(4) Kirschke's own testimony at a

State Bar hearing in which he attempted

to rehabilitate his alibi by stating

that he then remembered that he had park-

ed in a different lot at the Los Angeles

airport so that the evidence which des-

troyed his alibi is no longer pertinent.?°

1. inferentially by a footnote in a docu-

ment entitled. "Traverse to Response~-Sup-

plemental Points and Authorities in Support

of Issuance of Order to Show Cause," Kir-

schke states that a medical expert, who

testified at trial that postmortem lividity

can become fixed in as little as two hours,

testified at the superior court hearing on

the writ that the minimum fixation time is

six hours. At oral argument, Kirschke's

counsel contended that the latter testi-

mony is newly discovered evidence conclu-

sively establishing Kirschke's innocence.

The matter of fixation of postmortem livid-

ity was thoroughly explored at trial. Thus,

unless the new opinion points “unerringly"

to innocence, it is not a basis for coram

vobis relief. (In Re Imbler, supra, 60

A-17

A 554, 570, 35 Cal.Rptr. 293,

= aa ay In Re Branch infra, 70 Cal.

eal +3 4- ° Cal.Rptr. 238, 449

a ; -) Evidence points unerringly

7 PR ramaninaccn only when it undermines the

ntire case of the prosecution. (In Re

Lindle 29 Cal.2d 709, 7 177

’ . , 23-724,

. 2d ota; see also In Re Imbler, spre. |

’

;

1. cont. from page A-17;

{

60 Cal.2d 554, 569,35 Cal. Rptr

as Phen ag Here the "eeuier Ginemeues

- ence" does no more than cast doubt

ceived at trial, ‘Nothing seimeny Fe |

° Othin |

impelled Kirschke's assesital if sn |

evidence at trial were the same as the |

testimony produced at the hearing on |

the petition for writ. |

A-18 |

(6-8) Our discussion of the Wolfer

testimony on ballistics, acoustics, and

anatomy, concluding that its falsity is

not an adequate ground of collateral

attack, is equally applicable to Kirschke's

contention that, as newly discovered

evidence, the falsity requires that the

judgment be vacated. What remains is

Kirschke's self-serving testimony at

the State Bar hearing. The writ of

coram vobis will be granted on the basis

of newly discovered evidence only if

the petitioner "can 'show that some fact

existed which, without any fault or

negligence on his part, was not present~

ed to the court at the trial on the

merits...'" (In Re Imbler, supra, 60

Cal.2d 554, 570, 35 Cal.Rptr. 293, 302,

387 P.2a 6, 15), or if he shows new evi-

dence which points “unerringly to (his)

innocence." (In Re Sranch, 70 Cal.2d 200

214-215, 74 Cal.Rpt 238, 449 P.2d 174.)

Here Kirschke is asserting a fact known

only to him. His failure to assert it

at trial is unexplained. The self-serv-

ing statement does not point unerringly

to innocence.

A-19

INEFFECTIVENESS OF TRIAL COUNSEL

(9-11) Kirschke contends that he was

ineffectively represented by his lawyer

at trial because his counsel failed to

investigate and develop the falsity of

the demonstrative evidence used by

Wolfer to explain his ballistics testi-

mony. To succeed in that contention,

Kirschke must establish ineffectiveness

of trial counsel as a demonstrable

reality and not by speculation. (People

v. Reeves, supra, 64 Cal.2d 766, 774,

51 Cal.Rptr. 691, 415 P.2d 35.) Here

Kirschke can prevail only if we spec-

ulate that it was trial counsel error

and not trial counsel tactics that

prevented his calling a defense ballis-

tics expert as a witness. Since a

tactical decision, based upon investi-

gation, is not ineffective representa-

tion (People v. Gardner, 71 Cal.2d 843

851, 79 Cal.Rptr. 743, 457 P.2d 575),

Kirschke's contention fails.

A~-20.

eee

ee eee

ISSUES THAT WERE RAISED OR COULD

HAVE BEEN RAISED ON APPEAL

(12) The remainder of Kirschke's

petition seeks further review of issues

decided adversely to him on appeal or

which could have been, but were not,

included in the appeal. Those issues

are not available on collateral attack.

(In Re Shipp, supra, 62 Cal.2d 547,

552, 43 Cal.Rptr. 3, 399 P.2d 571.)

DISPOSITION

The petitions for habeas corpus

and coram vobis are denied.

WOOD, P.J. and LILLIE, J., concur.

A-21

APPENDIX B

IN RE KIRSCHKE

(HABEAS CORPUS, L.A. SUPERIOR COURT)

November 1, 1973

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FO. THE COUNTY OF LOS ANGELES

In re JACK KIRSCHKE

PEOPLE OF THE STATE OF

CALIFORNIA,

Plaintiff and Respondent,

MEMORANDUM

OPINION AND

ORDER DENYING

vs. RELIEF

JACK KIRSCHKE,

Defendant and Petitioner.

me ee ee ee ee ee ee

APPEARANCES

Roger S. Hanson for Petitioner.

Evelle J. Younger, Attorney General,

Albert W. Harris, Jr., Assistant Attorney

General, and Clifford K. Thompson, Jr.,

Deputy Attorney General, for Respondent.

HISTORY

Petitioner was convicted of the first

degree murders of his wife, Elaine Kirschke,

and her companion, Orville (Bill) Drankhan.

The jury fixed the penalty at death, but

the trial judge, the Honorable Kathleen

Parker, upon denying petitioner's motion

for a new trial, reduced the penalty to life

B-1

imprisonment. (Sec. 1181, sub.div. 7,

Penal Code.)

While the appeal was still pending,

petitioner filed his application for a writ

of habeas corpus.2/ The application was

initially filed in the Supreme Court but was

transferred by it to the Court of Appeal

"for consideration in conjunction with the

appeal.”

Concurrently with its affirmance of the

judgment in a nonpublished opinion filed on

July 28, 1972 (Crim. No. 16044, 2nd Dist.,

Div. 1), the Court of Appeal determined that

the petition "allege(d) sufficient grounds

for the issuance of an order to show cause

so that there may be an evidentiary hearing

upon petitioner's allegation that his con-

viction was obtained by 'the knowing use of

perjured testimony,'" and issued an order

to show cause directed to the nominal res-

pondent, Superintendent Bertram S. Griggs,

returnable before this court. (Sec. 15039(b)

Penal Code.)

1/ Petitioner was initially represented by

~ Bruce Anderson Coewey, Esq., in addit-

tion to present counsel. Mr. Doewey is

now deceased.

B-2

At petitioner's request the court

appointed criminalists Alfred A. Biasotti

and David Q. Burd as expert witnesses

(Sec. 730, Evidence Code) to examine cer-

tain exhibits -- the death: bullets, test

bullets and various photographs -- intor-

duced in evidence at the trial.2/ Biasotti

and Burd made their examination and sub-

mitted a joint report to the court.

(Exh. HC-1.)

Prior to the evidentiary hearing, peti-

tioner filed in the Court of Appeal an

application for a writ of error coram

nobis. That application was denied with-

out prejudice to filing the same in this

court, and petitioner's counsel, perhaps

thinking he recognized a hint, filed a new

coram nobis application in this court.

2/ Respondent's counsel did not join in

the request for appointment of the

expert witnesses, but once the court had

made known its intention to grant the re-

quest, both counsel approved the designa-

tion of Messrs. Biasotti and Burd.

THE HEARING

Counsel had agreed that it would not be

necessary for the court to read the entire

9832 pages of trial testimony, but designated

certain material portions of the testimony,

comprising several volumes of transcript,

which the court read and considered.

At the evidentiary hearing, which con-

sumed eleven court days, 28 witnesses testi-

fied and 32 exhibits were received in

evidence.

Counsel's arguments were intially pre-

sented by way of written briefs. Upon con-

clusion of oral argument the matter was

taken under submission.

THE ISSUES

As noted above, the basis of the Court

of Appeal's determination of petitioner's

entitlement to an evidentiary hearing was

his “allegation that his conviction was

obtained by 'the knowing use of perjured

testimony.

Petitioner, however, sought to expand

the scope of the hearing to include not

only certain areas of alleged "perjured

testimony" not originally included in his

B-4

petition, but also "incompetence" and

"material errors of fact" by the same

witness accused of perjury, De Wayne A.

Wolfer; "newly discovered evidence" and

"denial of due process of law" through

"denial of effective assistance of

counsel."

The Court of Appeal's order of July

28, 1972, required the respondent to show

cause before this court why relief shoulda

not be granted petitioner, which is just

about the same thing as issuing the writ

of habeas corpus and making it returnable

here. The effect is the same as if the

petition had been filed here in the begin-

ning. Hence, unlike the situation that

would have existed if the undersigned had

been designated as a referee to make find-

ings of fact on specific issues and render

a report, the scope of the hearing is not

necessarily limited by the allegations of

the habeas corpus petition nor by the Court

of Appeal's order.

A brief comment as to the petition for

a writ of error coram nobis is also in

order: Section 1265, Penal Code, provides

that ". . . if a judgment has been affirmed

B-5

ibe oe =

on appeal no. . . petition for a writ of

error coram nobis shall be brought...

except in the court which affirmed the

judgment on appeal." Petitioner, having

initially filed his application in the

proper court, claims that court's denial

"without prejudice to filing in the

Superior Court" now vests jurisdiction

here to consider the coram nobis claim.

He argues correctly that he had in fact

"brought" his claim in the Court of

ppeal, but less authoritatively that he

can proceed here now that the Court of

Appeal has refused to hear him.

This court has agreed to treat the

allegations of the coram nobis petition

as a supplement to the habeas corpus peti-

tion, which should satisfy petitioner,

inasmuch as the scope of habeas corpus is

certainly broad enough to grant any relief

3/

available on coram nobis.=—

3/ It comes to mind that if this court is

wrong on the jurisdictional point,

and should have entertained the coram nobis

petition as such, petitioner will have the

right to take a direct appeal, a remedy not

available to him on denial of habeas corpus.

B-6

PETITIONER'S CLAIMS

Petitioner has attempted to demonstate

that De Wayne A. Wolfer committed perjury

in the following instances:

1. In identifying the Kirschke and

Drankhan bullets as having come from a

revolver owned by petitioner.

2. In stating that as a part of his

educational background he and another

undergraduate fully dissected a human

cadaver.

3. In testifying that the body of

Drankhan traveled from the bed to the

floor of the Kirschke bedroom by the

shifting of "body fluids."

4. In testifying that a gun silencer

could reduce sound level a certain number

of decibels.

Petitioner's additional claims of pro-

secutorial negligence and material errors

of fact stem from the same Wolfer testimony.

The "newly discovered evidence" is simply

the evidence that (allegedly) Wolfer lied

(Or was wrong). The "denial of effective

assistance of counsel" -- a polite way to

term petitioner's trial counsel incompetent

-- is predicated upon that counsel's failure

B-7

—— = == = =

a Sa

to undertake an independent investigation

and comparison of the death and test bullets.

EVIDENCE

l. Wolfer's identification of the death

and test bullets.

At the trial, Wolfer testified that the

Kirschke and Drankhan death bullets came

from petitioner's gun "and no other gun in

the world." He testified that he examined

under a microscope each of the death bullets

alongside a bullet fired from Kirschke's

gun, rotated the bullets "into phase" and

saw matching striations which enabled him

to reach his conclusions. He made photo-

graphs so he could show the jury the "areas

of concern."

Exhibit HC-8 (see also trial exh. 99)

shows the Kirschke bullet (trial exh. 36)

on the left and test bullet T-1 (trial exh.

82) on the right.

Exhibit HC-9 (see also trial exh. 100)

shows the Drankhan bullet (trial exh. 41)

on the left and test bullet T-1 (trial

exh. 82) on the right.

Exhibit HC-10 (see also trial exh. 101)

shows the Drankhan bullet (trial exh. 41)

on the left and test bullet T-1 (trial exh.

on the right.

B-8

Exhibit HC-1l (see also trial exh. 102)

shows the Drankhan bullet (trial exh. 41)

on the left and test bullet T-1 (trial exh.

82) on the right.

At this point it is not possible to

determine with any degree of certainty what

Wolfer saw in the microscope several years

ago. But both the court's experts, Biasotti

and Burd, and petitioner's expert, Harper,

agree (and respondent does not now contest)

that there is a serious error in one or

more of the photographs Wolfer took of the

Drankhan death bullet.

The essence of the problem is that some-

how Wolfer compared a single land impression

from test bullet T-1l with two different land

impressions on the Drankhan bullet to prepare

trial exhibits 101 and 102.

Initially both Biasotti and Burd had

been in agreement that trial exhibits 100

and 102 were "in phase" with each other and

101 was not. Hence if 101 showed "points

of eeomtang ¥ 100 and 102 could not, and

vice versa.—

4/ This subject is explained much more

fully in exhibit HC-l, a copy of which

is attached to this order as Appendix "A".

B-9

On recall to the stand, however, Biasotti

testified that he thought 100 and 101 were

in phase with each other -- and 102 was not.

Burd was not recalled.

In Harper's opinion, 100 and 101 both

match parts of the same land in the Drankhan

bullet to two different lands in test

bullet T-l1. (See exhs. HC-P, HC-Q, HC-S,

HC-T. )

Both Baisotti and Burd reached the con-

clusion that they could not make the speci-

fic identifications between the death and

test bullets made by Wolfer -- but they

could not positively exclude such identifi-

cation, nor could they exclude the possibi-

lity that a prior specific identification

could have been made. They reached the

further conclusion that certain of the

"fine identifying individual characteristics

which are apparent in these photographs

are now obscured or removed by what appears

to be a combination of oxidation and wear."

Although Wolfer testified at the evi-

dentiary hearing that he took the comparison

photographs and showed them to the jurors

only to demonstrate "areas of concern,” it

seems quite clear he used the photographs

to convice them that the bullets indeed

matched. B-10

But at this late date we know that at

least one comparison in the 100-101-102

series must have been wrong.

Being wrong, however, does not make

one a perjurer.

2. Wolfer's testimon i

Seoketotn y as to educational

Wolfer testified, in establishing his

qualifications, of having been assigned,

along with another undergraduate pre-medical

student, to fully dissect a human cadaver.

Petitioner presented substantial evi-

dence negating the availability of a cadaver

to be assigned to only two students. He

elicited from a number of Wolfer's former

classmates differing recollections, but no

confirmation of Wolfer's experience. One

student recalled no laboratory phase to the

course at all; others did remember the lab-

oratory; there were varying recollections

as to the number and description of cadavers.

Some students recalled performing limited

dissection. One student, admittedly not a

very persuasive witness, recalled extensive

dissection by a small laboratory group.

In short, the evidence is conflicting

and this court is simply not convinced that

B-11l

a ——

Wolfer, whose memories may not be correct,

actually lied about his dissection

experiences.

3. Wolfer's testimony as to other

scientific matters.

It is manifest that Wolfer knew very

little of what he was talking about when he

explained the shifting of “body fluids"

and undertook to explain the quantum of

sound reduction that could be achieved by

use of a silencer on a handgun.

But just as error is not the equivalent

of perjury, neither is ignorance.

4. Alleged ineffectiveness of trial

counsel.

This contention is made with somewhat

less enthusiasm than the attacks on Wolfer.

The court might be inclined to take the

argument more seriously had petitioner seen

fit to call trial counsel as a witness and

give him the opportunity to answer the

belated charges.

Suffice it to say that in the absence

of any other eivdence on the issue this

court will not second-guess the trial

=

attorney, who appears as a matter oO:

B-12

stategy to have bypassed the Opportunity to

have his own examination of the death and

test bullets. No showing of withdrawal of

a crucial defense has been made; the trial

was certainly not reduced to a farce or

sham.

THE LAW

The court has examined all of the auth-

orities cited by counsel, not to mention

a few unearthed by its own efforts. In

particular, In re Imbler, 60 Cal.2d 554,

and the authorities cited therein, parti-

cularly at p. 567, Imbler v. Craven, 298

F.Supp. 795, In re Branch, 70 Cal.2d 200,

People v. Sarazzawski, 27 Cal.2d 7, In re

Ferguson, 5 Cal.3d 525, and Giles v.

Maryland, 386 U.S. 66 have merited careful

scrutiny.

What the court has been seeking is any

persuasive California or federal authority

that erroneous although nonperjurious

testimony is the equivalent of willful sup-

pression of evidence. No such authority

has been found, and accordingly petitioner

is not entitled to relief on that (or any

other) theory.

B-13

a

FINDINGS, CONCLUSIONS AND ORDER

Petitioner has not established by a

preponderance of substantial and credible

evidence those facts necessary to entitle

him to relief.

De Wayne A. Wolfer did not commit per-

jury at defendant's trial.

Petitioner was not denied due process

of law at his trial by virtue of:

(a) Any alleged negligence or errors

of fact in Wolfer's bullet comparison

procedures;

(b) any alleged denial of effective

assistance of counsel; or

(c) any other fact.

Petitioner has presented no newly dis-

covered evidence which undermines the case

presented by the prosectuion at the trial.

The order to show cause is discharged

and the petition for a wrot of habeas

corpus is denied.

The petition for a writ of error ccraz

nobis is dismissed for lack of jurisdiction

=

> --

Dated this first day of November, 1973.

GEORGE M. DELL

GEORGE M. DELL.

Judse of the Supericr

Court

2)

'

’°

4

APPENDIX C

DENIAL, PETITION FOR REHEARING

CALIFORNIA COURT OF APPEALS

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In re Kirschke on Habeas Corpus

No 26 380

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THE COURT:

Petition for rehearing denied.

Cray Rossuvs, Clerk

31610-112 3-78 om ® oer

APPENDIX D

DENIAL, PETITION FOR HEARING

CALIFORNIA SUPREME COURT

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CLERK'S OFFICE, SUPREME COURT

4250 STATE BUILDING

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I have this day filed Order_ __

Inre:__2 Crim, No. 26380

Kirschke on Error <oram Vobi s

Respectfully,

G. E. BISHEL

Clerk

38365.877 7-758 3m OSPF

APPENDIX E

PROSECUTORIAL ARGUMENT TO THE JURY

CONCERNING POLICEMAN

DE WAYNE ALLEN WOLFER

-Aq-

In this appendix we set forth the

salient trial testimony on the concept

of lividity initial formation as disting-

uished from lividity fixation, noting

that prosecution pathologist Graham ini-

tially correctly stated that 6-7-8 hours

were required for it to attain permanent

fixation, and then erroneously stating

later that 2 hours were sufficient for

permanent fixation.

At the March-Arp. .1, 1973 reference

hearing, Dr. Graham admitted his criti-

cal trial mistake concerning the eron-

eous figure of 2 hours, explaining that

he misunderstood that inguiry to be di-

rected to when the lividity first became

discernible.

We follow initially with the trial

testimony on lividity, and conclude with

the prosecutor's argument on the conse-

quences of the lividity on the alibi,

and the solution of that prosecution

trial problem by the false testimony of

policeman DeWayne Wolfer, now shown to

be a false prosecution witness:

E-1

(a) Lividity

Before beginning the charting of

the ubiquitous “lividity issue" which

threaded itself through the trial, we

must warn of the prosecution trial error

in lividity fixation time. In the case

in chief, at trial, Prosecution Patholo-

gist Dr. J. Wallace Graham testified ini-

tially under cross-examination, as fol-

lows, R.T.A. 2949ff:

"9. Is there something on the body of

a dead person called lividity?

A. Yes.

Q. What is that?

A. This is a color, a reddish color,

imparted to the surface of the body which

is most dependent, the blood settling to

the dependent portions of the body.

For instance, if the body is lying on

its back, the blood will settle in that

direction and impart a bright red color

to that area.

Q. When does the blood settle and

thus impart its color in relation to the

time of death?

A. After death.

Q. What is it that causes the set-

E-2

tling of the blood?

A. Gravity.

Q. Does this situation that we call

lividity develop while the heart is still

pumping?

A. By definition, no. Livor mortis

indicates the individual is dead, while

if the heart is still going, the individ-

ual is alive.

Q. Technically alive; is that right?

A. Yes.

Q. Probably actually, too; is that

A. Yes.

Q. How soon after life ceases in the

body does a demonstrable livor mortis or

lividity show?

A. Oh, it depends on the situation.

In some individuals it is discernible

within an hour.

Q. So that if a person at death is

lying on his back and stays there for an

hour or more, you would anticipate the

lividity to be on the posterior portion

of the body; is that right?

A. That's correct.

Q. If after the lividity has set in

E-3

— wae

the body is moved, is there then a change

in the movement of the blood thus having

arrived at the lower portion?

A. Yes. If the body is moved with-

in a certain amount of time.

Q. Within what time have you known

of lividity moving?

A. Oh, this is extremely variable.

For instance, if the body is on its back

for several hours and it is turned over,

say, on its abdomen, there could possi-

bly still be movement of blood in that

particular direction, or to the depend-

ent portion of the body. After a certain

amount of time, six, seven, eight hours

it becomes fixed..

Q. Does that mean at that point the

body, the blood in the body has coagula-

ted so that it no longer moves about?

A. Not necessarily coagulated, but

certain tissue changes have occurred

with, say, breakdown of proteins, that

it slows or impedes the movement of

blood back into a direction if the body

is moved.

Q. Did you observe this condition

called lividity on either body?

E-4-

A. Yes."

We note in the foregoing testimony

a clear, lucid, correctly presented de-

marcation between the:

(1) initial discernment or initial

visual observance of lividity formation,

which is reversible, which is to be dis-

tinguished from lividity fixation or per-

manence, and

(2) the permanent, irreversible fix-

ation of lividity.

Dr. Graham correctly testifies that

"in some individuals it is discernible

in an hour, but “after a certain amount

of time, six, seven, eight hours it be-

comes fixed."

Scientifically, the foregoing testi-

mony correctly sets forth the fact that

in about 1 or 2 hours after death livid-

ity may be seen to be developing, but if

at that time, or any time up to, say 6

hours after death, the body is reversed

’

or rolled over, the blood causing the

initial discernment of the lividity will

drain out of the skin capillaries and the

skin capillaries at the opposite side of

2

<

E-5

the body will start to receive blood which

will eventually become discernible in the

new location.

However, “after a certain amount of

time, six, seven eight hours, it becomes

fixed," according to Dr. Graham. The

foregoing Dr. Graham testimony was essen-~

tially scientifically accurate, although

we note at pages 163 thru 189 of our

Petition for Writ of Habeas Coepus, filed

January 13, 1975 in the Second Appellate

District, that recognized medical, sci-

entific works set 8 to 12 hours as the

lividity fixation time.

See also affidavit of Dr. Griffith

Thomas, a board certified Pathologist,

pages 143 thru 163 of the above cited

Petition for Writ of Habeas Corpus.

For the purposes of the instant case

an atti mpt to distinguish between 6

hours or 8 hours or 12 hours is not nec-

essary.

Strangely enough, during subsequent

cross-examination, Dr. Graham then pre-

sented the following incorrect testi-

mony on lividity fixation time, R.T.A.

2969fFf:

E-6

"Q. Let's assume now that he was

found face down, and let's assume that

he had been face down for at least 24

hours before he was discovered.

Did you find any lividity on the

anterior aspect of the body?

A. No, it was described to be on

the posterior aspect of the body.

Q. Bearing in mind what you have

told us a little while ago about liv-

idities, perhaps changing even after

death when bodies are moved, in your

opinion how long would that body, mini-

mum-wise, had to have lain dead on its

back for the lividity to form poster-

iorly and not change when the body re-

verted to its face or moved to its face?

A. Oh, two hours.

Q. In your opinion in two hours

the lividities would have been so set

that a complete reversal of the body

from back dwon to face down would not

alter them; is that right, sir?

A. Yes. Now, when I give a figure

of two hours there is considerable lee-

way in either direction; this is not a

hard and fixed rule and many things can

E-7

modify it depending on how-much blood is

lost and other certain factors.

Q. Do you now have an opinion, based

upon what you observed with respect to

the body, the loss of blood as it appear-

-d to you in the course of the autopsy,

and any other factors that you observed

in the course of the autopsy, do you now

have any opinion as to the minimum period

of time that that body would have had to

have lain on its back to have been found

in the condition that you--to have been

in the condition that you observed it at

the autopsy when some time after death

the body moved over on its face?

A. I'll give you a time of two hours,

I believe, with reservation that it could

go one way or the other.

Q. Is two hours your best minimum

time based upon everything that you

have learned all these years in your

study and experience?

A. I can't say two hours definitely;

I can say about two hours.

Q. But is that your best opinion?

A. Yes.”

Noting the obvious and clearcut con-

flict between these 2 times, 6-7-8 hours

on one hand and 2 hours on the other hand,

the discrepancy was cleared up by Dr.

Graham when called as a witness at the

March-April, 1973 reference hearing held

before the Honorable George M. Dell of

the Los Angeles County Superior Court.

Dr. Graham there explained that his

"two hours” fixation time was erroneous,

he then erroneously, mentally lapsing

at that time into thinking the question

propounded was directed to when the liv-

idity was initially discernible rather

than the time to permanently fix.

It is to be noted that the erroneous

2 hours was seized upon by the prosecu-

tion as the minimum time that Drankhan's

body had to lay after death before it

was moved to insure lividity fixation,

when in fact the true scientific 6 hours

to 8 hours minimum time would absolutely

preclude KIRSCHKE from carrying out the

killing and transfer of the body.

Nonetheless, recognizing that KIR-

SCHKE was in Las Vegas checking into the

E-9

matter of minutes,between the undetermined

actual death time and the time of 4:00 a.m.

the time KIRSCHKE must have left the death

scene, under the theory of the prosecution,

to drive to Las Vegas to check in at about

8:30 a.m. at the hotel in Room 415. The

: check-in time was established by Bobby

Lancaster, the prosecution witness Bell-

hop from the hotel.

Hotel at about 8:30 a.m., it was clearly

recognized by the prosecution and ad-

mitted that KIRSCHKE must have had to

leave the Naplés apartment at 4:00 a.m.

at the very least to make the 4 hour, 32

minute automobile trip to Las Vegas, un-

der the prosecution theory of the case.

For a killing that commenced by gun

shots occurring at 2:30 a.m., as testi-

fied to by prosecution witness Frank

Cornell, the upstairs neighbor, even this

2 hour minimum time, albeit erroneous,

left the prosecution with the impossibly

deficient time of 1-1/2 hours from 2:30

a.m. to 4:00 a.m. for lividity to perm-

anently fix in the body of Drankhan,

even assuming death occurred instantan-

eously at 2:30 a.m. If death did not

We note in passing that the Court of

Appeals at page 13, slip opinion, foot-

note 1, recognizes the trial testimony

discrepency in the lividity fixation

times, but continues to not recognize or

realize the significance that that test-

imony played in the trial nor does it

recognize how the establishment of the

correct 6 hours insures KIRSCHKE'S "un-

erring innocence," for he was then in

Las Vegas, Nevada at the time the killer

moved the body. That footnote said, at

occur instantaneously at 2:30 a.m. from

the gun shot wound, of course even less

time? was then available, perhaps just a

pages 13 & 14:

"Infer i :

We note that Senator Robert F. Kennedy document Gasaiias’ “Meinieas tn Maninen

lingered in life in Los Angeles, in June, Supplemental Points and Authorities in

1968, over a day, passing through a major Support of Issuance of Order to Show

surgical operation on his brain, before Cause,' Kirschke states that a medical

passing away; Abraham Lincoln was trans~ expert, who testified at trial that post-

ferred to a cheap room across the street mortem lividity can become fixed in is

from Ford's Theatre in Washington to lin-

ger hours before passing away. Nothing E-11

proved that Drankhan died instantaneously

at 2:30 a.m.

E-10

little as two hours, testified at the

superior court hearing on the writ that

the minimum fixation time is six hours.?:

At oral argument, Kirschke's counsel con-

tended that the latter testimony is newly

discovered evidence conclusively estab-

lishing Kirschke's innocence. The matter

of fixation of postmortem lividity was

thoroughly explored at trial. Thus, un-

less the new opinion points "“unerringly"

to innocence, it is not a basis for cor-

am vobis relief. (IN RE IMBLER,supra

60 Cal. 2d 554, 570: IN RE BRANCH, infra

70 Cal. 2d 200, 214-215.) Evidence points

unerringly to innocence only when it un-

dermines the entire case of the prosecu-

tion. (IN RE LINDLEY, 29 Cal. 2d 709, 723-

724 [177 P.2d 918]; see also IN RE IMBLER

supra, 60 Cal. 2d 554, 569.) “Here the

"newly discovered evidence" does no more

than cast doubt upon one item of expert

testimony received at trial. Nothing

would have impelled Kirschke's acquittal

if the evidence at trial were the same

as the testimony produced at the hearing

on the petition for writ.”

As we explain elsewhere in this Pe-

tition, the 6 hour lividity fixation

time does unerringly establish KIRSCHKE'S

innocence, and the role of the false

3+o¢ course, as we showed above by di-

rect quotation from R.T.A. 2949ff.,

that “medical expert" had established

on one occasion at trial that the min-

imum fixation time was 6 hours.

E-12

Wolfer anatomy testimony, with its accom-

panying false “fluid shifts" went to the

merits of the case in a material manner

in "explaining" by false scientific evi-

dence how the Drankhan dead body moved

many hours after death, unaided by human

impetus. This false evidence was used

by the prosecution to obviate KIRSCHKE

remaining at the death scene to move the

body and thus its materiality is not

open to question.

As we explain elsewhere in this

Petition, the development and permanent

fixation of post-mortem lividity in the

posterior area of the body of Orville

William Drankhan conclusively estab-

lishes that his body had to lay on its

back for some 6 to 8 hours, at least,

and then get turned over on its face by

some external force. For a killing that

occurred, under the best prosecution

evidence, at 2:30 a.m., on April 8,

1967, even assuming instantaneous death

that body could not have been moved be-

fore 8:30 a.m. on Saturday, April 8,

1967, the exact time that prosecution

witness bell-hop Bob Lancaster is check-

E-13

ing Petitioner, JACK KIRSCHKE, into the

Stardust Hotel Room 415, where he gets

tipped by KIRSCHKE with a gambling chip

from a different Las Vegas hotel, obtain-

ed at the other hotel prior that morning

by JACK KIRSCHKE, i.e. from the Desert

Inn.

We present the foregoing in detail

because the prosecutor seized on the

erroneous 2 hours lividity fixation

time rather than the correct 6-7-8

hour lividity fixation time in the fol-

lowing closing arguments to the jury

wherein he emphasized the importance

of the testimony of DeWayne Allen Wolfer.

We need only cite what prosecutor

Albert W. Harris told the jury that the

importance of Wolfer's testimony was:

When we do that, we foreclose any con-

tention that his false evidence went to

"irrelevant issues" in the case, or went

to "an unexplained phenomenon which is

virtually irrelevant to KIRSCHKE'S guilt

or innocence", or dealt with "testimony

which did not concern the heart of the

matter", or went to testimony which

"could not, beyond a reasonable doubt,

E-14

have affected the outcome of the trial..."

(page 12, December 2, 1975 slip opinion).

Harris said, in his final address to

the jury, concerning Wolfer and his key

demonstrations supported by his falsified

evidence, that Wolfer had solved the

problem that the state had with the de-

fense alibi.

Prosecutor Harris was quite cogni-

zant of the key issue of the case being

the defense alibi, and he directed his

argument to attacks thereon. From

R.T.A. 9338:

"All right. Now, let's get this al-

ibi out of the way, and I'm going to

take some time on this..."

“Not very much; not very much, but

here and there, because we are focusing

in for the next hour and fourteen min-

utes on what is no doubt the critical

issue in the case...."

From R.T.A. 9339:

"Right at the end, just before the

Bible, just before the emotions are

raised, but I have got to get to this

alibi this morning because I want to

get through it, and there is quite a

bit of evidence to discuss. It is, as

I said before, I think the critical

issue in the case."

Prosecutor Harris emphasized that

E-15

time was a critical factor in the alibi.

From R.T.A. 9340:

"...because time is a critical factor

in this case, and there is no question

about it...”

Prosecutor Harris recognized that the

Chee nese

2:30 a.m. gun shot time testified to by

his witness, Frank Cornell, served to

establish the KIRSCHKE alibi, but if he

could advance the time, he could circum-

vent the problem. From R.T.A. 9369ff:

"Now, you remember yesterday two-

thirty was pulled out of the air. That

is the only time. It makes sense. Sure,

it makes sense. After all, Mr. Cornell

said two-thirty. But did he say gun-

shot wounds? How does the medical evi-

dence affect that? Because 2:30 will do

the job for the defense and at two o'

clock the whole alibi falls to peices,

the whole alibi collapses.

Now, why do I say that? If the kill-

ing was before two o'clock, and bear in

mind we have got to have the other point

between two and something else, some time

prior to that--and I'll go along with

Mr. Ramsey: 1:10, 1:20. You name it.

1:30, if that keeps everbody happy, that

they leave the Yacht Club.

Once you start going back from two

o'clock, the killing occurred in that

period of time. Then we look at Yermo.

I am going to go into that in a moment.

But at 2 a.m.--you will recall how far

it:.is to San Bernardino. I am sure you

E-16

know anyhow It was a little over 60

miles, as I recall the evidence and the

Stipulation. An hour later, three o'-

clock in the morning. San Bernardino at

three. And then what is it to Yermo?

Another hour and fifteen minutes? Now,

that is getting pretty close to four o'-

clock in the morning; it is getting too

close to four o'clock in the morning.

Now, you heard yesterday that we were

critical of Frank Cornell, it has to do

with the physical evidence, it has to do

with the medical evidence, it has to do

with what that shows as to the time of

killing. Because that is critical to

this alibi.

You can say, well, take 2:30. I can

Say take 12:30. But let's look at the

evidence and see what that shows. We

Say it shows the killing was prior to

two o'clock.

What did Frank Cornell hear? Maybe

he heard the body coming off the bed, I

don't know. I don't think it was the

gunshots because there is absolutely

nothing to substantiate that and the con-

dition of the stomach militates against

it.

The prosecutor realized that his

prosecution's pathologist, having once

said 6-7-8 hours was necessary for liv-

idity to fix, then switched to the erro-

neous 2 hours, but even that 2 hours was

recognized to be of great benefit to the

defense for KIRSCHKE could not have re-

mained for 2 hours after the killing and

E-17

still get to Las Vegas. From R.T.A. 9410

(note how the prosecutor admits that "2:30

a.m. isn't good enough" for his conviction

in his final address to the jury):

"No, we find something that develops

late in the trial, quite late in the trial

after some sixty some defense witnesses

have gone up on that witness stand, and

I'll tell you what I think motivated it.

I think what motivated it is what I have

been telling you about for the last two

hours. I think it became clear to the

defense that that alibi had too many

holes in it. It had too many leaks. It

was sinking rapidly.

Jean Ledet and his prior testimony,

Dennis Baily, being impeached about this

prior incident when Jack Kirschke walked

in; Peggy Peterson and a plate of sau-

sage and toast, that is not strong enough.

They needed some help. What did they

need? They needed the killer in that

house for two hours.

Now, when the People closed their

case after calling our 49 witnesses, you

heard Frank Cornell, and you had heard

about the 2:30 that you were told about

yesterday. That was the time. And all

of a sudden that 2:30 wasn't good enough,

and I agree, it isn't good enough. They

have got to put the killer in that house

for’ two hours, and why do they have to

put the killer in that house for two

hours? Only because of the alibi.

There is no other reason. To shore up

that alibi. Add two hours to it and you

can criticize Baily, Ledet, and every-

body else, but if the killer had to be

E-18

in that house for two hours and Jack Kir-

schke was anyhere out there on that road,

you are never going to believe he did it.

So now we've got into the two hour

routine in the house, in the house in

Naples, and how much evidence dame in on

that issue? How many witnesses, how many

days did we spend on it?

Mr. Harper took the witness stand.

He testified to two things, the path of

the bullet--now, pardon me, he didn't

testify to the path of the bullet, he

said the bullet ricocheted, which is

very interesting, and he testified that

somebody had to pull the body off the

bed, and that the body had to be on the

bed, Mr. Drankhan's body, for two hours

for lividity to fix, because they had

seen that line in the autopsy report,

posterior lividity, and this is the ans-

wer, somebody's in that house for two

hours and pulls Mr. Drankhan off of the

bed.

Now, if they can get that thought

over to you, two hours, add two hours,

then let Harris take on our witnesses,

add two hours to the 2:00 o'clock or

2:30, and then what does that alibi

look like? It looks real good.

So now we have got to have a man in

that house for two hours, and they pro-

ceeded to put a man, or woman--there is

some talk about a woman--somebody in

that house for two hours.

Now, I say the reason we got into

that whole production that went on for

days and days and weeks, and finally

culminated in LeMoyne Snyder being call-

ed down here at the last minute, was for

E-19

one reason, and that is the defense real-

ized their alibi had too many holes in it,

and they needed two more hours. What

other explanation is there for it?

What difference did it make if the

body was pulled off the bed by somebody?

Why couldn't Jack Kirschke pull it off

as well as anybody else? It didn't have

anything to do directly with Jack Kirschke,

it had to do with those two hours, because

if he could convince you somebody was in

that house for two hours, you're going

to buy that alibi, and you know why you

can believe Jack Kirschke. That is the

theory, and that is why we spent the

weeks on that, and that is why we had

the lividity until we were all sick and

tired of it.

I'm not going back to all of that

testimony by Mr. Harper and Dr. Ridge.

The basic thought was a very simple one,

dead men don't get up and move around.

I think we all agree with that. Of

course they don't. But the thing I kept

asking Mr. Harper, and I liked Mr. Har-

per, he's certainly a very amiable and

likable man, I kept asking him where was

Mr. Drankhan on the bed.

Now, isn't that of some importance?

And the answer I get, 'Well, he was on

his back.' Well, all, right, he was on

his back. He had posterior lividity.

Well, where was he on the bed on his

back? Well, we don't know. He had to

be flat on the bed. How else could he

lay on the bed. Very simple. He had

to be flat on his back on the bed for

two hours, and somebody had to come in

there and throw him off the bed, throw

him to the floor.

E-20

Dr. Ridge backed up that theory, and

there we were. Two more hours. Add that

to the alibi and you would have heard a

day of argument here about how two hours

added to whatever time you wanted to

start with, you could go back to 1:00

o'clock or anywhere, and there is no wa

Jack Kirschke could have done it, but the

two hours don’t mean anything without

the alibi.”

The prosecutor recognized the role

of Wolfer in destroying the necessity

of the 2 hours by his spurious "fluid

shift" and anatomy testimony. From

R.T.A. 9419:

"Now, let's go back for a moment.

What had all this got to do with the

case? The question is whether Jack Kir-

schke committed the murder. Now, what

does a body coming off the bed have to

do with that? What is all this argument

about the respective abilities of Mr.

Wolfer and Dr. Snyder? What does that

have to do with the case?

The only thing I can think of, and

I racked my brain about this, such as

it is, is they need that two hours, and

they need somebody in that house for two

hours, and this is the way they get it,

through what is, on its face, a pretty

sensible proposition; when a man is dead

on a bed, he doesn't get up and walk

around. Of course not.”

The prosecutor then emphasized how

Wolfer had destroyed the alibi by his

E-21

circumventing the 2 hour lividity fixa-

tion time: From R.T.A. 9423-9424:

"Again, what differnce does it make?

It could have been Jack Kirschke in ei-

ther area. If he wasn't there, then it

was somebody else. So what is the de-

fense so excited about? Well, as I told

you there are two things it seems to me

they are excited about: one is that two

hours. They have to have that two hours.

And when DeWayne Wolfer is through tes-

tifying 1 don't think anybody in this

courtroom believed somebody hung around

that house for two hours in order to

throw Bill Drankhan off the bed that he

couldn't hardly have stayed on if he

wanted to once his back got parallel

to that bed. You saw the man right out

here--not Mr. Drankhan, you saw the man

who was about his size and he was put

on the bed by those bloodstains.

I could see the defense getting ex-

cited about that. But why did they get

excited about the trajectory? What

difference to them whether it is in

the closet area, near the door in the

living room? What is the difference?

He said he wasn't there, he didn't do

it--at least that is what the defense

is, it is what his attorney says. Why

do they get upset about Mr. Wolfer? I

didn't see it at the time. I saw they

were upset, it didn't take too much to

tell that. If you have ever seen the

panic button pushed in a courtroom it

Was pushed when DeWayne Wolfer left the

witness stand. The phone call goes up

E-22

EE eer en

to Paradise to Dr. Snyder, Mr. Harper

heads off to run off one of his experi-

ments to see how much of this stuff you

get out when you shoot a gun through a

towel. He does it outside in the wind

where a lot of it blew away, he says, so

there really is a lot more. That's a

fine way to conduct a scientific experi-

ment. We had to have a recess for a

couple of days so this great Dr. Snyder

could come down here and examine the

evidence. Of course, at that time he

wasn't identified to you--some great ex-

pert was going to come down here."

And from R.T.A. 9438:

"But your integrity is the one thing

that is imperative, and without that you

might as well forget about it. And that

would go for Jack Kirschke when he was

a District Attorney, and it goes for all

the Deputy DA's, I don't know how many

there are, in this County. It is true

of the criminalists. Without that in-

tegrity they don't have anything. They

don't have anything. And yet the inte-

grity is called into question. Why?

What did Officer Wolfer do that was so

_terrible? Did he say Jack Kirschke

pulled the trigger? I don't recall him

Saying that.

What he did was demolish that two

hours. And when he demolished that two

hours, aS 1 said before, they pushed the

panic button and they went to these ex-

treme lengths, even up through yesterday,

to convince you that Mr. iol fer didn't ;

know what he was talking about because

they are still not happy with two-thirty.

E-23

We went through all that this morn- | ly false testimony had and played no role

ing. They have got to have that two-hours. ‘ : eee

they asnTe ee in this conviction. Chapman v. Califor-

nia, 386 U.S. 18, 24 (1967); People v.

The prosecutor clearly emphasized

how the testimony of Wolfer, now proven Ruthford, 14 Cal. 3rd 399, 406-409; in_Re

false, truly emasculated the scientific Imbler, 60 C.2d 554, footnote 2 at 564-565.

lividity defense of the Petitioner.

We belabor this argument because we =

have taken issue with the key and erron- THE FALSE BALLISTICS EVIDENCE PROPOUNDED

eous conclusion formed by the Court of BY STATE AGENT POLICEMEN DE WAYNE ALLEN

Appeals at pages 11-12 of the slip op- WOLFER:

inion of December 2, 1975, .IN RE KIRSCHKE Both the Court of Appeals and the

53 Cal. App. 3rd 405, and we are com- Superior Court now recognize that false

pelled to summarize for this Honorable | ballistics evidence was used to achieve

Court exactly how the prosecutor hammer- the conviction.

ed home the importance of the alibi and In its July 28, 1972 unpublished op-

how it had been destroyed both by the inion, the Court of Appeals alluded to

acoustics and silencer changing the : the ballistics evidence no less than 4

time of the shooting, and secondly, times, contending it to be the signifi-

Wolfer causing the body to move by cant evidence in the case. “It is now

"fluid shifts". known to be falsified, but now the Court

Because of this clearly significant of Appeals excuses this as "honest error."

issue in the trial of Petitioner, the In its opinion affirming the con-

Court of Appeals of California is clear- viction on July 28, 1972, that Court

ly erroneous in stating that the role said, inter alia:

of Wolfer, his qualifications, his

falsification thereof, and his obvious- E-25

E-24

J

(Page 19, SLIP OPINION)

",...Most significant of all, however,

is the unrebutted fact that the murder

instrument was appellant's .38 caliber

revolver, normally kept in a bedside

table out of sight."

(Page 19-20. SLIP OPINION)

"...here the evidence points only

to appellant, that the most damaging

of that evidence is that the murders

were committed with his gun."

(Page 26, SLIP OPINION)

"...it is a fair inference, also,

that appellant awaited the return of

Elaine and Drankhan from the Yacht Club,

armed himself with the .38 caliber re-

volver in the bedside table and shot

them as they lay on the bed. ...Moreover,

it is not evidence of consciousness of

guilt that connects appellant most strong-

ly with the murders but rather the undis-

puted fact that the .38 caliber revolver

in his possession was the murder weapon."

(Page 35, SLIP OPINION)

"...the critical evidence in the

case at bench is appellant's motive, his

unusual conduct prior to the shootings

evidencing that motive, his contrived

false alibi and his possession of the

murder weapon.”

E-26

We present a mere sampling of

the myriad of permeating references

to the now known false ballistics

evidence made by the prosecuting at-

torney in his closing remarks to the

jury to show that harmless Chapman

error cannot be ascribed to this

falsification of key evidence by

the State agent policeman DeWayne

Allen Wolfer:

References Are to Reporter's

Transcript on Appeal, Trial

"Our theory, which I told you I was

going to expound today, is this: The

theory of the People is that Jack

Kirschke took his revolver, and he

shot his wife, and he shot Orville

Drankhan, and he killed them. That

is the theory of the People. (8985)

It happened in Jack Kirschke's house

it was Jack Kirschke's gun, it was

Jack Kirschke'’s wite, it was Jack

Kirschke's wife's lover, and we sub-

mit he pulled the trigger."

"He did it with his gun in his apart-

ment." (8986-87)

---and that someone killed them with

what we submit was Jack Kirschke's

gun." (8988)

“Now, what gun were these bullets

fired from? He said that, in his

Opinion, based on his examination of

those bullets and his experience and

his training, that all of the bullets

that he examined, the Sheriff's test

bullets and both bullets removed from

the bodies of Mrs. Kirschke and Mr.

Drankhan were fired from the same

gun. They were fired from that gun,

and they were fired from no other

gun_in the world." (9012)

E-28

the

"So we submit to you that it is not

a matter of any reasonable doubt, but

a Matter of no doubt whatever that

Jack Kirschke's gun fired the bullets

that killed Elaine Kirschke and Bill

Drankhan." (9013)

"He is the only person in the evidence

presented here in three months that

knew anything about this gun, and that

is the gun that these people were

killed with.” (9019)

"They were taken by surprise by some-

one with Jack Kirschke's gun. )

In finalizing his closing argument to

jury, the prosecutor said concerning

now-known false ballistics evidence:

"I can't see the physical evidence

being explained in any way except

coming through that door, surprising

the people, pulling that trigger twice,

and having the gun when you come in

that house, and there is only one man

that we know of from the evidence in

this case who could have had that gun,

only one man, so our case is based,

ladies and gentlemen, on this, matters

that I have explained here as best I

can, the motive, the means, the op-

portunity, the guilty conscience."

"Tt was Jack Kirschke's house, it was

his wife, it was his wife's lover, it

was his gun.

We submit he killed these two people,

and that he is guilty of murder in the

first degree.”

E-29

CONCLUSIONS

Because of the gross violation of the

fundamental mandates of Brady v. Mary-

land, 373 U.S. 83, 87; Napue v. Illinois,

360 U.S. 264, 269; and United States v.

Giglio, 405 U.S. 150, this Court is com-

manded by Townsend v. Sain, 372 U.S.

293, 316, to examine this conviction

under the due process requirements of

IN RE WINSHIP, 397 U.S. 358.

Certiorari should be granted.

DATED: April 10, 1976.

Respectfully submitted,

ROGER S. HANSON, Esq.,

Member of the Bar of the

United States Supreme

Court & Supreme Court of

California

GRIFFITH D. THOMAS, Esq.

Member of the Bar, Supreme

Court of California

GEORGE T. DAVIS, Esq.

Member of the Bar, United

States Supreme Court &

Supreme Court of California

Attorneys for the Petitioner,

JACK KIRSCHKE

Certificate of Service on

EVELLE J. YOUNGER

Attorney General of California

3580 Wilshire Blvd.

Los Angeles, California

THE BRIEF SHOP

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