# Petition — Kirschke v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2308%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 820 ## Text Supreme Court, Ul. S. | 5 & Be 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 , 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 : ; i i | ; ; 5 ; : . 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 oi Fo | . ; 2 i ae Saree en ee ——— rl rl OOO ; 1 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— 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. 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"WR OO?Z PIULD 96] “OL Lhady *Aepuoy ) 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 -- 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 Tol26 Buy BquUeS —Kenpeord “S O15 uceusy *S seZ0y mm 321440 8.NUBTID e 106 auInNsS GVVATINO| BulnsumM O8SE 7S ATV NL 41214181Q GNOI3S : in as PP ; ’ jaaddy jo ysnop _ = - $i °2333 ,-. 0 anvas 7) r Los Angeles, Cal ze . In re Kirschke on Habeas Corpus No 26 380 SS ee THE COURT: Petition for rehearing denied. Cray Rossuvs, Clerk 31610-112 3-78 om ® oer APPENDIX D DENIAL, PETITION FOR HEARING CALIFORNIA SUPREME COURT Tolz6 *e8O ‘euy eBques Aempeoug u3nosg gIs ‘bsg ‘uosuey *S sweZ0y CLERK'S OFFICE, SUPREME COURT 4250 STATE BUILDING — ee I have this day filed Order_ __ Inre:__2 Crim, No. 26380 Kirschke on Error