1975: From The Public Records of The Trial Proceedings of The Assassination of His Holiness, Mar Eshai Shimun XXIII
Posted: Monday, July 17, 2000 at 9:19 AM UT
IN AND FOR THE COUNTY OF SANTA CLARA
COURTROOM NO. 5
BEFORE HONORABLE GEORGE H. BARNETT, JUDGE,
AND A JURY.
San Jose, California
On March 8, 1976, the Court addressed the prospective jurors, who were sworn in and examined. The examination continued on March 9, 1976. On the morning of March 10, 1976, examination of the prospective jurors was concluded, and the twelve members of the jury and two alternate jurors were duly sworn. The jury was instructed, and the proceedings were continued to Friday, March 12, 1976.
Court convened March 12, 1976, at 9:45 a. m. , and the Deputy District Attorney, Mr. Robinson, presented his opening statement on behalf of the People of the State of California. Mr. Pestarino, attorney for the defense, reserved his opening statement until the beginning of his case. The Clerk then read the Indictment, to which the defendant had pleaded not guilty, and the first witness, Richard Thomas Mason, M. D. , was called, duly sworn, and examined. Mr. Robinson moved that all witnesses and prospective witnesses be excluded. Attorney Pestarino had no objections, and the Court so ordered. It was stipulated that the defendant's investigator and the prosecution's chief investigator may remain, should it be so desired.
Dr. Mason declared that he is the assistant medical examiner coroner for the County of Santa Clara. He testified that on November 7, 1975, at 10:15 a. m. , he performed an autopsy on His Holiness, Mar Eshai Shimun, at Santa Clara Valley Morgue. The cause of death was gunshot wounds in the chest and abdomen. There were three gunshot wounds of entrance present on the front surface of the body; a single gunshot wound of exit present on the right posterior shoulder; a bruise at the left corner of the eye; and a small laceration over the bridge of the nose where he had struck his head in falling. A diagram regarding the wounds was presented and marked as People's Exhibit No. 1. Dr. Mason stated that the exhibit was basically an enlargement of the body diagram used in preparing the autopsy notes. The red symbols on it represented the three gunshot wounds of entrance. The black symbol represented the surgical wound made at Santa Teresa Hospital by the doctors in the resuscitator process. There were two other wounds in the chest which were surgical wounds for the insertion of plastic tubes into the chest cavity to drain blood. The wound on the back of the right shoulder was a gunshot wound exit. Two bullets were recovered from the body of Mar Shimun.
Dr. Mason then described the gunshot wounds of entrance as follows:
"There was a gunshot wound of entrance over the left upper front chest at a point 12-1/2 inches beneath the top of the head and 2-1/2 inches to the right of midline. . . There was a second gunshot wound of entrance which was present at 16-1/2 inches beneath the top of the head and
1-1/2 inches to the right of midline. The third wound of entrance was just below the rib margin at 19 inches beneath the top of the head and 1-1/2 to the left of midline. The upper wound penetrated the upper lobe of the right lung and exited through the right back. The second wound penetrated the right lung and the bullet was impacted in the posterior wall of the chest on the right. The third wound penetrated the liver and perforated the stomach, and the bullet was impacted in the spine in the cartilaginous disk between the second and third vertebra -- the second and third lumbar vertebra. ".
Dr. Mason stated that the upper wound was straight, going in at a point 12-1/2 inches beneath the top of the head, and coming out at a point 13 inches beneath the top of the head. The angle of the second bullet was approximately 30 degrees downward with regard to a plane parallel to the floor. If the body had been inclined or bent over at the time the wound was sustained, the angle of the second wound might not have very much significance. The angle of the third wound was approximately 25 degrees downward.
Dr. Mason also stated that, other than the wounds on the face which were consistent with the decedent's falling, there were no other wounds on the body. There was no evidence of powder residue on the skin around the wounds or deep within the wounds. After examining the shirt the decedent was wearing at the time, Dr. Mason testified that there was no powder residue around the bullet holes in the shirt, and that the bullet holes in the shirt corresponded to the bullet holes in the body. This indicated that the range of fire was more than two feet.
The bullets which Dr. Mason removed from the body were then presented to the Court and marked as People's Exhibits No. 2 and 3.
Attorney Pestarino then cross-examined Dr. Mason regarding his experience with, and knowledge of, firearms. The gun allegedly used in the murder was presented to the Court and, after discussion between counsel, was marked as People's Exhibit No. 4.
The second witness, Police Sergeant Aubrey Raymond Parrott, was then called by Attorney Robinson. Sergeant Parrott testified that on November 6, 1975, at approximately 7:10p. m. , he was contacted by county communications and directed to a possible homicide in the area of Woosley and Los Pinos. An aerial photograph was then presented to the Court and marked as People's Exhibit No. 5. Sergeant Parrott then marked Woosley, Los Pinos, and Cottle Streets on the photograph, and indicated the location of a shopping center.
A sketch draw by Sergeant Parrott depicting the downstairs south-east portion, and the entranceway from the sidewalk of 6217 Woosley was then presented to the Court and marked as People's Exhibit No. 6. Sergeant Parrott then named the sketch as the home of the Patriarch, Mar Shimun, and described it in detail. He then testified that he arrived at the scene of the homicide at approximately 8:00 p. m. , and described the scene as follows: ". . . . it is a two-story frame and stucco dwelling with the attached garage. Upon my arrival, the front door on the south side of the two doors was in a full open position. The overhead porch, and the garage wall light which shines into the walkway area there, were in an on position. The entryway interior light was off. There was no living-room lights on. There was an upstairs stairwell light on which gave a little bit of light down into the entryway area. The dining room chandelier light was on, and the front door, as I indicated, was open. However, it did not show any signs of forced entry. " He also indicated that a streetlight in front of the residence was operating at the time.
Sergeant Parrott testified that about 15 minutes prior to his arrival at 6217 Woosley, he was directed to an area between the residences at 376 and 378 Los Pinos -- that is, to a planting strip adjacent to the sidewalk. He had been flagged down by officers as he approached the scene, and his attention was called to the junipers in the planting strip. There was a weapon in the junipers which he picked up by the narrow portion of the gun butt. He identified People's Exhibit No. 4 as the weapon. Sergeant Parrott stated that the clip was inside the weapon, and that it was partially loaded. A single cartridge was in the chamber of the weapon.
After a description of how the gun was loaded and operated, an additional clip was presented to the Court and marked as People's Exhibit No. 7. Sergeant Parrott identified this clip as the one he found in the same junipers at the time he found the loaded pistol.
Attorney Robinson then asked whether Sergeant Parrott had taken fingerprints from the weapon, and Sergeant Parrott testified that latent fingerprints had been taken, and described the process. The four sets of latent fingerprints were marked as People's Exhibits Nos. 8-1, 8-2, 8-3, and 8-4.
Three plastic vials containing cartridges were then presented to the Court and marked People's Exhibit No. 9. Attorney Robinson asked Sergeant Parrott to describe the exhibit. Sergeant Parrott identified the first two as expended cartridge casings, and the third as an expended bullet. He then went on to say that he had found one cartridge casing on the sidewalk, and the other on the entranceway to the house. He had found the bullet lodged in the wallboard a number of feet up from the stairs. The court then recessed.
After the recess, photographs taken by Sergeant Parrott of the scene that night were presented to the Court and marked as People's Exhibit Nos. 10-A through 10-EE.
Attorney Robinson then asked Sergeant Parrott to describe the weapon found at the scene. Sergeant Parrott stated that the weapon was cocked, and the safety was off. The additional clip he found did not appear to go with the weapon, but it did fit the weapon.
Sergeant Parrott then testified that at approximately 6:15 a. m. he had in his possession a search warrant signed by a Superior Court judge of Santa Clara County, and he searched Room 129 at the Oasis Motel. He described the room as follows: "… room with a bed, and in the immediate area after entering through the door has a small desk over against the window with a lamp on it, and, I believe, a chair there … As you would then go from that main room, you go through a sort of a dressing area, there is a mirror and another vanity type of table, and then the bathroom at the end of that hallway area. " Sergeant Parrott stated that there were no clothes in the closet; that he photographed the room; and that he removed some of the articles from the room. There was an AWOL bag on the first counter next to the window. It, and some of the toiletry articles and a shirt that were in the bag, were left at the scene. At a later time Sergeant Parrott had gone back to the motel, received the bag from the owner, and had another officer give it to the defendant at the County Jail.
Attorney Robinson then presented the photographs previously marked as People’s Exhibits Nos. 10-A through 10-EE to Sergeant Parrott. The photographs were of the scene of the crime, the motel room, and the defendant (taken in the hallway at the San Jose Police Department. )
A coat was then presented to the Court and marked as People’s Exhibit No. 11. Suit pants to match the coat were marked as People’s Exhibit No. 12. A tie was marked as People’s Exhibit No. 13. A black shirt was marked as People’s Exhibit No. 14. Sergeant Parrott identified these garments as those worn by the defendant the night of the arrest.
A black notebook some writing in it was presented to the Court and marked as People’s Exhibit No. 15. Sergeant Parrott identified it as one of the items he had removed from the Oasis Motel, and stated that he had found it in the AWOL bag. A brown address book with writing and scraps of paper inside it was presented and marked as People’s Exhibit No. 16, and was also identified by Sergeant Parrott as an item he had removed from the AWOL bag. A Byron Swazey Travel Service card, marked as People’s Exhibit No. 17, and several loose papers marked as People’s Exhibit No. 18 were also identified by Sergeant Parrott as articles he had removed from the AWOL bag.
Sergeant Parrott testified that he had seen the defendant on the night of the arrest, and that there was nothing that would indicate to him that the defendant was intoxicated. Cross-examination of Sergeant Parrott by Attorney Pestarino then commenced.
After the cross-examination, a redirect examination of the witness was conducted by Attorney Robinson, and a recross-examination was conducted by Attorney Pestarino.
Mrs. Carol Jean Damron of 6205 Woosley was called as the next witness. She testified that she knew the Patriarch and his wife, and on the evening of November 6, 1975, at approximately 6:40 p. m. , she was serving dinner to her husband in their living room when she heard some noises out front. Thinking that it was kids knocking over her garbage cans, she ran out the front door of her house. Just as she got to her driveway, she saw a man running from the Shimuns’ sidewalk and across their driveway in front of her, going onto Woosley. The man was running very fast. Instantaneously Mrs. Shimun came from her front door, completely hysterical, screaming. She then saw the man again as he crossed the street, ran across the front lawn, and tripped over a chain fence. Immediately he got up and started running down Los Pinos again. During this time she had been calling for her husband. She described the man as being dark-complexioned, wearing a gray suit, and about 5 feet 11 inches tall. She said she had never seen the man before, and she could not swear that the same man was in the court room. She then testified that after she told her husband what had happened, he got into his truck to go after the man. Mrs. Damron was then cross-examined by Attorney Pestarino.
Mr. Robert Damron was then called to the stand and stated that he was eating his dinner at approximately 6:45 on the evening of November 6, 1975, when he and his wife heard some noises in the front. His wife thought it was some kids knocking over their garbage cans and ran out the door. He heard his wife scream and went outside. When he heard what had happened, he ran into his neighbor, and they took off in Mr. Damron’s truck to try to catch the man. They drove down Los Pinos and stopped to ask a man if he had seen anyone running down the street. The man said that he had, and accompanied Mr. Damron and his neighbor as they drove down Los Pinos to Cottle. At the intersection there were two fellows getting out of a car, and when asked whether they had seen anyone, one said, "Yes, we saw a person right down there"; so Mr. Damron backed up the truck and drove down Cottle. About half a block down the street they saw a fellow walking. Mr. Damron then testified that the man walking down the street had been the defendant. The man whom Mr. Damron and his neighbor had stopped to pick up identified the man as the one he had seen running by him, and Mr. Damron did not stop the van, but continued down the street to a Union Station and telephoned the police. As he came out of the phone booth there was an officer in a car there, and Mr. Damron told him that the suspect was in either the Lucky Store or the pizza parlor. The officer drove to the pizza parlor, and Mr. Damron walked over to it. Just after he arrived, he saw the officer bringing the defendant out of the pizza parlor. Mr. Damron then indicated his route on the diagram on the board. Attorney Pestarino conducted a cross-examination.
The next witness, Mr. Nicholas Stukan, was called. He stated that he lived at 6226 Woosley Drive, across the street from the Shimun residence. He was in the dining room with his family when he heard Mrs. Shimun’s screams. She came into Mr. Stukan’s house screaming that her husband was shot, and he went outside and got into the van with Mr. Damron to chase the suspect. Mr. Stukan testified that they stopped to pick up another man, and when they got to the shopping center he went into the Thrifty Store. When he came out he saw the police come out of the pizza parlor with a man in a gray suit. Attorney Pestarino then cross-examined the witness. Attorney Robinson then conducted a short redirect examination of Mr. Stukan who testified that his wife had gone into the Shimuns’ residence after the shooting and took the little boy into her home.
David Philip Morgan was called as the next witness. He testified that on the evening of November 6, 1975, he was waiting across the street from 367 Los Pinos with his wife, as they had purchased the residence, and the tenant was to meet them and give them the keys, when he heard two or three noises which sounded like backfire from a car. He got out of his truck and then heard screams and started walking up the street. As he was walking, he saw a man running towards him. Mr. Morgan identified the defendant as the same man. Mr. Morgan stated that when the man passed him, he was holding his right arm close to his body. He kept going up the street and met Mr. Damron and his neighbor in the van, and accompanied them to the shopping center where he saw the man enter the pizza parlor. The police arrived shortly, and Mr. Morgan saw them enter the pizza parlor and bring out the defendant. Mr. Morgan stated that he believed the defendant was sober at the time. Mr. Morgan was then cross-examined by Attorney Pestarino.
The next witness called was Officer Charles Melvin Lintern of the San Jose Police Department. He testified that he responded to a homicide at 6217 Woosley and talked first to Mrs. Carol Damron, who told him of the man and that he had fallen by the juniper bushes by the chain-link fence. Officer Lintern then checked the area, located the weapon, and waited for the detective crew. A cross-examination of Officer Lintern was then conducted by Attorney Pestarino.
Mr. Ronnie G. Myers was the next witness called. He testified that he is a resident of Dublin, and he had been the proprietor of a gas station located at 411 West MacArthur Boulevard in Oakland, which he purchased from a Mr. Yule Lazar in 1970. Mr. Lazar advised him that because the station had been robbed several times he should buy a gun. About a week after he took possession of the station, Mr. Myers purchased a . 22 automatic from Siegle’s Gun Shop on MacArthur Boulevard in Oakland, for approximately $169. He had had the gun for approximately a week when Mr. Lazar came to the station to collect some money Mr. Myers owed him, and at that time saw the gun and offered to buy it for more than Mr. Myers had paid for it. Mr. Myers sold Mr. Lazar the gun, and stated that he had not seen it since that time.
Attorney Pestarino then cross-examined Mr. Myers regarding his relationship with Mr. Lazar. Mr. Myers testified that at the time he bought the gun he did not buy any bullets for it, nor did he buy an additional clip. He stated that at the time he gave the gun to Mr. Lazar he still owed Mr. Lazar some $600 from the gas station transaction, and Mr. Lazar agreed to deduct the purchase price of the from that amount. There was no formal written agreement concerning the transaction between Mr. Myers and Mr. Lazar. Mr. Lazar had a note from Mr. Myers which he kept in his pocket, and when he received the gun he deducted the sum of approximately $210 from the balance.
A redirect examination of Mr. Myers was conducted by Attorney Robinson in which Mr. Myers stated that some eight months after he purchased the station from Mr. Lazar, he sold it, and that he has not had any contact with him since that time.
The trial reconvened at 9:45 a. m. on Monday, March 15, 1976, at which time Emama Mar Eshai Shimun was called to the witness stand. She testified that she is Assyrian, and that she was born in Iraq and lived there from 1942 until 1969 when she immigrated to Canada. She lived in Hamilton, Ontario, Canada, until 1971 when she immigrated to the United States. The witness stated that while she was living in Canada with her family, she and her family knew Mr. David Ismail and his family, and that when he visited her family in Canada he spoke of a political organization whose goal was to get back the Assyrian people’s land from the Iraqi government. When she stated that she was against his ideas, Mr. Ismail said that once the churches were destroyed, the attention of the people could be given to politics and regaining their land. The church he was referring to was the Church of the East. As this time Mrs. Shimun said she also knew Mr. David Ismail’s brother, Zaia Ismail, and that he was politically involved with the Assyrian Universal Alliance.
Mrs. Shimun then testified that she had met the Patriarch of the Church of the East in Tehran in 1968 with her family and a group of Assyrian people. In July 1973 the Patriarch asked her to marry him, and explained to her that he had resigned his office with the Church because of his health. She married him in Seattle, Washington, on August 16, 1973. Mrs. Shimun then explained the tradition and history of the Patriarchate of the Church of the East, and that the members of the Church were in Iran, Iraq, Australia and Italy, and that new members from Brazil and France were to be accepted. There are also some members of the Church in the United States. Some of the people were very upset when the Patriarch resigned his office, as they wanted him to be a political leader as well as a spiritual leader. However, he felt that the Church should be completely isolated from politics. Mrs. Shimun stated that about a month before the Patriarch was killed, someone from the Assyrian Universal Alliance in Chicago had visited him, trying to get him to return to Iraq to live, and to support the political alliance. The Patriarch had again declared that he didn’t want the Church involved in politics, and that each member should be faithful to the country in which he lived. It seemed that the Assyrian Universal Alliance wanted the Patriarch out of office.
Mrs. Shimun testified further that a meeting between the bishops of the church and the Patriarch was scheduled in Seattle, Washington, on November 19, 1975, but that it had been postponed to January 5, 1976. She also testified that her husband, the Patriarch, had confided to her that he was afraid someone was plotting against him.
Mrs. Shimun then testified that on November 6, 1975 she was living with her husband and baby son at 6217 Woosley Drive, San Jose. She spent the day as she usually did, preparing breakfast, doing her housework, taking the baby for a walk, and doing some shopping, while the Patriarch worked in his office upstairs. Around 4:00 p. m. she and the Patriarch had tea and then they prepared the dinner. They had just finished eating dinner, and she had gone upstairs to bathe the baby and put him to bed, about 6:30 p. m. , and the Patriarch had gone to the kitchen to prepare their evening coffee as was his custom, when she heard him scream her name twice, a shuffling noise, and three shots. She said that she had been told by the Patriarch that he would call her name twice if anything ever happened to him, and that she was to lock herself and the baby in a room and call for help. However, in this case she rushed down the stairs to see what had happened to her husband. She stated that she had seen no one through the glass portion or the door, nor through the windows which had sheer draperies, when she had gone upstairs. She did not know whether the door was locked, as she did not lock it when she came in from her walk with the baby. She did know, however, that the chain lock was not on. Mrs. Shimun testified that no guests were expected either that day or that evening, and if there had been someone ringing the door bell she would have heard it from upstairs. However, the Patriarch might not have heard either the bell or a knock, as he had some trouble with his hearing.
Mrs. Shimun then looked at the photographs marked People’s Exhibit No. 10, and identified several things in the photographs.
The examination continued, and Mrs. Shimun testified that on November 5, 1975, she had received three or four phone calls from someone with an Assyrian accent, each time asking for a wrong number, and that her husband felt that the person was checking to see whether he was home. The same sort of call had also been received from a woman. This type of call had also been received about three months ago. Mrs. Shimun said she did not know that David Ismail was in San Francisco between October 31 and November 5, nor did he call her house. She also stated that she did not know he was in San Jose on November 6, Attorney Pestarino then began his cross-examination of Mrs. Shimun.
Attorney Pestarino questioned Mrs. Shimun regarding her testimony at the preliminary hearing, and then continued with questions concerning the Patriarch and his position with the Church of the East. He then went on to ask about the Patriarch’s friendship with General Ismail. Mrs. Shimun testified that the Patriarch had always spoken highly of General Ismail. She went on to say that during her stay in Canada her family and the Ismail family had visited back and forth, but that he was always about politics. She also testified that she did not believe her husband had ever met David Ismail, although he had met his brother Zaia.
Mrs. Shimun again testified, in answering questions addressed to her by Attorney Pestarino, that she was certain that the chain was not on the front door the evening of the murder, but that she didn’t know whether the door was locked. It was the Patriarch’s custom to take a walk between 9:00 and 10:00 p. m. , and he usually locked the house when he returned from his walk. She also went on to say that the Patriarch was hard of hearing and that he would not have heard a knock on the door.
The next questions asked Mrs. Shimun referred to David Ismail and various conversations she had had with him. Mrs. Shimun testified that she had never heard David Ismail discuss religion, only politics.
Questioning continued, and Mrs. Shimun testified that she knew that the name Mar Yukhannan Pilipus, Mar Dinkha, and Mar Narsai d’Baz were names of bishops. Attorney Pestarino then presented a letter to Mrs. Shimun which was marked as Defendant’s Exhibit A. Mrs. Shimun said that she had never seen the letter before and knew nothing of its contents. (The letter supposedly came from the 4th council of the Church of the East in Beirut, Lebanon, and asked for the Patriarch’s resignation. ) Mrs. Shimun stated that her husband had resigned his office in the church, and had done so by a letter which had been distributed to all the congregations, and that there was no law in the church that the Patriarch could not marry, although for several hundred years no Patriarch had been married. At the time of his resignation the Patriarch had requested that a successor be elected.
Mrs. Shimun then confirmed her testimony that a member of the Assyrian Universal Alliance in Chicago had come to see the Patriarch, and encouraged him to give up his spiritual leadership and assume political leadership, but that the Patriarch had declined and stated that he did not want to be involved in political organizations of any kind. Mrs. Shimun stated that the man’s first name she knew to be Sargis, and she believed that his last name was Michaels.
Attorney Robinson then conducted a redirect examination in which Mrs. Shimun testified, after looking at the photographs marked People’s Exhibit No. 10, that a chair in her living room had been moved from the place she usually kept it, and she marked the place on the photograph. She also stated that Reverend Ninos from San Francisco had accompanied the Patriarch to Seattle to perform their marriage ceremony.
Edith May Hart was the next witness who was called. She testified that she and her husband manage a motel in San Francisco at 821 Taravel Street. A registration card from the motel was presented to the court and marked as People’s Exhibit No. 19. Mrs. Hart stated that such a card was kept for each individual who had stayed at the motel, and that the motel’s guests filled the cards out themselves. This particular card bore the name "David Benjamin", and the address of 1477 21st Avenue, San Francisco. Mrs. Hart testified that he had been a guest at the motel for two nights, starting with October 30, and that her daughter, Robin Crowley, had been the clerk who registered the guest. Mrs. Hart told the court that the card showed that the bill had been paid in cash, and that payment was for two nights and one long distance phone call which was made to (213) 386-7534 in Los Angeles on October 31.
During the cross-examination by Attorney Pestarino, Mrs. Hart testified that she did not know a person by the name of Kitty Benjamin, and that she was not present when the person "David Benjamin" registered at the motel.
The next witness called was David Kenneth Siegle, part owner of a gun shop at 508 West MacArthur Boulevard in Oakland. Mr. Siegle presented documents to the court…State and Federal registration forms and an invoice for a handgun… which were marked as People’s Exhibit No. 20. He then told the court the procedure for registering a handgun, and identified the handgun marked as People’s Exhibit No. 4 as being the same one referred to in the documentation. He testified that he sold the gun and a box of ammunition for it to Mr. Myers. A cross-examination by Attorney Pestarino was the conducted.
During the cross-examination it was established that the address of the purchaser of the gun was 103A Ramona Street, Albany, and that the gun shop was located two or three blocks from a Union station on West MacArthur Boulevard.
Attorney Robinson then conducted a redirect examination of the witness.
Yule Joseph Lazar was the next witness called. He stated that he was employed as the controller of the PSA Hotel in San Francisco, and presented Mr. David Ismail’s guest records from the hotel to the court. These records were marked People’s Exhibit No. 21-A through 21-F. The records indicated that Mr. David Ismail had been a guest at the hotel from November 1 through November 5, and that he had checked out on November 6. During that time he had stayed in room 727, and four long-distance phone calls were made during his stay. Mr. Lazar stated that one of the calls was made on November 6 to Australia, telephone number 6070027, to a Mr. Kanna: and that on November 6 another call was made to Sidney, Australia, 728, telephone 7732. It was also established that during his stay there Mr. Ismail had had four drinks at the bar. Mr. Lazar also testified that he had given Mr. Ismail a 50% discount on the room rate at the hotel, and that he gave most Assyrian people a 50% discount on the room rate. Mr. Lazar said that on October 31 he received a call from his brother, Sam Lazar, saying that David Ismail was in town and that he didn’t have time to see him, and that he was staying at the Sunset Motel. The Sunset Motel informed him that there was no one by that name registered, but that they did have a Mr. David Benjamin from Canada staying there. Mr. Lazar left a message and later got in contact with "Mr. Benjamin" and invited him to dinner. His brother, Joe Lazar came to the Sunset Motel and brought David to the PSA Hotel on October 31. Mr. Lazar then testified that Kitty Benjamin was his employee, and that she lived at 1477 21st Avenue in San Francisco. He then went on to state that October 31 was the first time he had seen David Ismail, and that after having dinner in the Pena Room at the PSA Hotel, he drove Mr. Ismail back to the Sunset Motel. At that time Mr. Ismail indicated that he was not satisfied staying there, and Mr. Lazar suggested that he come and stay at the PSA Hotel. On Saturday, November 1, he picked up Mr. Ismail and checked him into the hotel. They then had dinner at the Elegant Farmer Restaurant in Jack London Square. Mr. Lazar stated that he did not remember what Mr. Ismail’s luggage consisted of, but he thought there was a suitcase. On Sunday morning Mr. Lazar had taken Mr. Ismail to church with him, and then arranged to meet him at a soccer game. However, Mr. Ismail didn’t show up at the game. Mr. Lazar then did his radio show and didn’t see Mr. Ismail until the following Monday morning. It was established that Mr. Lazar was the secretary of the Assyrian Universal Alliance in San Francisco, and that his brother, Sam, had held the position before him. Mr. Lazar testified that the head office of the Alliance is in Cincinnati, Ohio
Mr. Lazar testified further that he had met Mr. Ismail for coffee several times between November 3 to 6, and that on the afternoon of November 3 he had lent Mr. Ismail his car. Mr. Lazar then identified People’s Exhibits Nos. 11, 12, 13, and 14 as being the suit, shirt, and tie which Mr. Ismail wore several times when he saw him.
The testimony continued, and Mr. Lazar stated that his brother, Sam, had met Mr. Ismail at an Assyrian convention in Chicago, and that he and Mr. Ismail had briefly discussed the Assyrian Universal Alliance. He also stated that he knows Mr. Ismail’s brother, Zaia, and that he had met him in Iraq in either 1962 or 1963. He stated further that he did not know much about the Assyrian Universal Alliance, as there was very little activity in the Bay Area or in Los Angeles.
Mr. Lazar was then questioned as to whether he knew Mr. Ismail had a gun, and his reply was that he didn’t know, and that the matter of guns was not discussed between him and Mr. Ismail.
It was established that when Mr. Lazar came to this country, his first purchase was a Union 76 station in Oakland, and that Mr. Ron Myers was a temporary employee of Mr. Lazar, and that later Mr. Lazar sold the business to him. Mr. Lazar had acquired the business in October 1969, and sold it to Mr. Myers in February, 1970. He stated that during that time he had been the victim of dishonest employees, and that once he was burglarized and all his merchandise was taken, but that he got 95% of it back. Mr. Lazar stated that after he sold the station to Mr. Myers he saw him only twice, once to cash a check, and another time to purchase gas. He said he did not know of the existence of a gun shop near the station.
People’s Exhibit No. 4, the gun, was then shown to Mr. Lazar, who stated that he had never seen it in his life, and that he had not obtained it from Mr. Myers, nor furnished a weapon to Mr. Ismail.
Mr. Lazar then testified that he believed that Mr. Ismail drank Johnny Walker Scotch, and that he thought that he drank quite a bit, but that he noticed no change in his behavior.
A cross-examination was then conducted by Attorney Pestarino. Questioning concerning Mr. Ismail’s drinking when with Mr. Lazar, the Assyrian Universal Alliance, and also Mr. Lazar’s reasons for giving a 50% discount on hotel rates to Assyrian people.
Mr. Lazar was asked whether he knew the Patriarch or Mrs. Shimun, and he stated that he had never met the Patriarch, and that he met Mrs. Shimun only at the Grand Jury. He stated that he had a conversation with her in which he introduced himself and said that he felt sorry for what had happened, and that Mrs. Shimun had said that she was afraid of Assyrians and that they were violent people. Mr. Lazar then stated that he had talked with David Ismail about his father, but not on a political basis. He also stated that his radio program promoted the culture and history of the Assyrian people, but did not address the future. He was questioned about a party he was going to attend in Turlock, and stated that it had been cancelled. It was a monthly party held by the people from Bet-Nahrain Magazine and the Bet-Nahrain radio broadcast. He also stated that he thought the Assyrian Universal Alliance was an official political body recognized by the United States.
People’s Exhibit No. 4, the gun, was then shown again to Mr. Lazar, who again stated that he had never seen it before, that he did not know of the gun shop on West MacArthur Boulevard in Oakland, and that he had never been there, and that he saw Mr. Myers only twice after he sold the service station to him. Each time he had written a check, and these checks were presented to the court and marked as Defendant’s Exhibits B-1 and B-2.
Mr. Monte Beamon was the next witness called. He stated his occupation as taxicab driver for Mission Yellow Cab Company, and testified that on November 6, 1975, he was dispatched to the Oasis Motel at 5340 Monterey Road, Room 129, at approximately 6:00 p. m. His log was marked as People’s Exhibit No. 22. Mr. Beamon stated that he drove up to the motel and stopped in front of room 129, got out of his cab, and knocked at the door. The gentleman came to the door and said he was not quite ready, so Mr. Beamon stood by the cab and waited for him. Mr. Beamon described the man: "Well, he was a middle-aged man, as I remember, he was wearing a coat and tie. Nothing unusual about the person that would make him stand out. " Mr. Beamon invited the man to sit in the front of the cab with him, and the man asked to be driven to Santa Teresa and Cottle, to the pizza parlor. The drive took approximately ten minutes. When they arrived at the pizza parlor, the man asked Mr. Beamon where Woosley Street was. Mr. Beamon looked it up on a map which he kept in his cab and told him how to get there. According to Mr. Beamon, the man showed no signs of being under the influence of alcohol. Mr. Beamon stated that the man seemed cool and calm at the time, and identified the defendant, Mr. David Ismail, as being the same man. Mr. Beamon was then cross-examined by Attorney Pestarino.
Virginia S. Adams was called as the next witness. She is an assistant policewoman for the city of San Jose, and is an expert on latent fingerprints. Mrs. Adams explained a chart, marked as People’s Exhibit No. 23, to the court, and explained the difference between latent and inked fingerprints. She was then shown People’s Exhibit No. 8, and identified the fingerprints shown therein to be identical to those in the set of fingerprints taken from David Malek Ismail . Mr. Ismail’s inked fingerprints were marked as People’s Exhibit No. 24-A through 24-D. Mrs. Adams was then cross-examined by Attorney Pestarino, and a redirect examination was conducted by Attorney Robinson.
Officer James Melvin Neal of the San Jose Police Department was then called to the witness stand. Officer Neal testified that on November 6, 1975, at 6:53 p. m. , he was at a call box on Monterey Highway at Cottle in San Jose, and was advised by radio that a shooting had taken place next door to 6205 Woosley Drive. He radioed back that he would be responding to the call. While he was responding to the area, he received another radio broadcast putting out a description of the suspect. The description he received by radio was: "… a white adult male, about forty-five, about five foot nine, wearing a gray suit and a black shirt. They advised that the party possibly went into a location at Santa Teresa and Cottle. " Officer Neal stated that he advised radio that he was at that location, and was told by another broadcast that some citizens or witnesses had followed a particular party to that location, and were at a phone booth at the 76 station at Santa Teresa and Cottle. He radioed back that he was being waved down by some citizens who advised him that they had followed the party from the Woosley address, and that the party was in the pizza parlor at the time, or else in Thrifty. Officer Neal entered the pizza parlor and observed the suspect sitting at a table. The suspect looked directly at Officer Neal, and Office Neal told him to place his hands flat on the table and not to move. Officer Neal then told the suspect to rise slowly, keeping his hands on the table. Officer Neal testified that at that point he walked over to the suspect, placed his shotgun on his back, and pat-searched the suspect for a concealed weapon. He found no weapon, and told the suspect to straighten up and interlock his fingers behind his head. The suspect appeared to be sober. Officer Neal then instructed the suspect to walk behind the table and to the door, where Officer Neal stopped him and told him to place his hands against the wall. At that point two other officers entered the pizza parlor, and the suspect was handcuffed. The suspect was then placed in a police vehicle, and the other officers and Officer Neal drove to the scene of the crime.
Evidence was pointed out to Officer Neal when he arrived at the scene, and the area was roped off. Two officers were instructed to make a foot-search for the weapon. Officer Neal radioed for a uniformed supervisor to respond and to bring photography equipment. At that time he was advised that the weapon had been found. He then radioed for more assistance and went over to the police vehicle and read the suspect his rights. The suspect indicated that he understood. The suspect was then asked his name, which he states was David Ismail, and Officer Neal asked him several other questions. The suspect was then taken to the detective bureau by Officer Neal. Shortly thereafter a technician took blood and urine samples from Mr. Ismail. The data sheets from these specimens were presented to the court and marked as People’s Exhibit Nos. 25A & 25B.
The suspect was then advised to empty his pockets and to place the contents and other valuables he had on his person on a table. These items, placed in a plastic bag, were presented to the court and marked as People’s Exhibit No. 26. Officer Neal again stated that he did not believe the suspect to be under the influence of alcohol.
A cross-examination of Officer Neal was conducted by Attorney Pestarino. Attorney Robinson then conducted a redirect examination, and Attorney Pestarino conducted a recross-examination.
Mrs. Ranjan Patel, who with her husband owns and operates the Oasis Motel at 5340 Monterey Road, San Jose, was the next witness called. A registration card from that motel was presented to the court and marked as People’s Exhibit No. 27. Mrs. Patel explained that each guest who stayed at the motel filled out such a card. She testified that on November 6, 1975, Mr. David Ismail checked into room 129, and was to stay one night, which he paid for in advance. He had arrived at the motel by taxicab, and Mrs. Patel did not notice whether he had any luggage. He was wearing a suit, with a shirt and tie. After he checked in he returned to the office and asked Mrs. Patel to call him a taxi. She had no conversation with him. Mrs. Patel was then cross-examined by Attorney Pestarino. During the cross-examination it was established that Mr. Ismail gave his address as 1297 Huron Street, #402, London, Ontario, Canada, when he registered at the motel.
Then Mr. Joseph Arthur Borg, a travel consultant for Byron Swazey Travel in London, Ontario, Canada, was called to the witness stand. Certain travel agency documents were presented to the court and marked as People’s Exhibit No. 28. Mr. Borg stated that the documents indicated that a one-way ticket from London, Ontario, Canada, to San Francisco was purchased by Mr. David Ismail for arrival in San Francisco at 7:51 p. m. on October 30. Mr. Borg was cross-examined by Attorney Pestarino, and redirect examination was conducted by Attorney Robinson.
The next witness called was Kitty Benjamin. Ms. Benjamin gave her occupation as an accounts receivable clerk with the PSA San Franciscan Hotel in San Francisco, and stated that her boss was Mr. Yule Lazar. She gave her residence address as 1477 21st Avenue, San Francisco.
Ms Benjamin testified that she knew David Ismail and pointed him out in the court room. On October 30, 1975, she had picked him up at San Francisco International Airport. He had telephoned her about a week prior to his arrival and asked her to meet him. Kitty Benjamin said that she had met Mr. Ismail about eight years ago at an Assyrian convention in either Chicago or Hartford, Connecticut, and that she had seen him several times in the eight-year period, and that on various occasions he had telephoned her.
Further testimony was given by Ms. Benjamin that she had arranged for David Ismail to stay at the Sunset Motel after he had told her that he did not wish to be a guest in her home and would be more comfortable just staying close by. She had not booked Mr. Ismail into the PSA Hotel because it was more convenient for him to go sight-seeing from the area of 19th and Taravel, and she had wanted him to stay near her home. When she registered Mr. Ismail at the Sunset Motel she had used the name "David Benjamin" because it was nearly closing time for the motel and she wanted to save time. She had used her home address because Mr. Ismail was a guest of her and her mother, and they would be paying the bill. People’s Exhibit No. 19 was shown to Ms. Benjamin, and she stated that her handwriting was on the exhibit, that she did not pay in advance for the room or leave a deposit, but that she had received the key to the room at that time. After meeting Mr. Ismail at the airport, she drove him directly to the Sunset Motel.
Kitty Benjamin testified that when she met Mr. Ismail at the airport he was very neatly dressed in a grayish suit, and that he had two pieces of luggage: a bag and a small suitcase. She did not remember what time they arrived at the motel, but when they arrived there she accompanied Mr. Ismail to the room where he hung up his clothes … shirts and a pair of slacks … from his suitcase. She did not see a gun in the bag, nor did he talk to her on that day of having a gun. She then drove Mr. Ismail to her home where they had dinner and listened to music and visited. Later she took him for a drive around the Cliff House and up by Twin Peaks. She said she had told him to amuse himself on Friday by going to the zoo.
Ms. Benjamin stated that she went to work Friday morning and did not see Mr. Ismail until Friday evening when she picked him up about 6:30 and brought him to her home. She was shown People’s Exhibit No. 10-BB, and identified it to be a photo of the suit Mr. Ismail was wearing at the time. When she went to pick up Mr. Ismail on Friday evening she did not enter his motel room; she merely honked her horn and he came out to her car. When they arrived at her home for dinner, she had hung his coat in the closet and had not seen Mr. Ismail with a gun. She had not noticed anything about the coat that would have indicated that it contained a gun. In her further testimony, she stated that she and Mr. Ismail had stayed at her home until about 9:00 p. m. , and then had gone to the Hyatt Regency to the Equinox for drinks. They were there until maybe 12:30 a. m. , and during the course of the evening they had each had about four or five drinks. After leaving the Hyatt Regency they had driven down by the Embarcadero and around Fisherman’s Wharf, around Doyle Drive, up 19th Avenue, and then she had dropped him at the Sunset Motel and continued home. This was about 1:15 or 1:30 a. m. Saturday morning (Friday, October 31, extended). As she was off on Saturday, November 1, she took Mr. Ismail sight-seeing around the Cannery and Chirardelli. The evening before, Mr. Ismail had said he would like to stay downtown, so Ms. Benjamin went into the office of Sunset Motel and paid the bill for his room when she picked him up. She said that Mr. Ismail left his luggage with the manager of the motel, as he hadn’t really decided whether he was going to stay there another night. This was about 4:00 p. m. , Saturday, November 1, 1975. Ms. Benjamin said that at the time Mr. Ismail was wearing slacks and a sport shirt. She then had to leave, because she was going to an Assyrian party in Turlock. She stated that Mr. Lazar had also been invited, but that the party had been cancelled. However, she had not known of the cancellation until after she arrived in Turlock, so she spent the night there and returned to San Francisco late Sunday evening.
Kitty Benjamin stated that the next time she saw Mr. Ismail was on Monday morning, when he walked into her office and said "hello". He was talking with Yule Lazar, and he and Mr. Lazar had had coffee together. She had to stay at her desk. She did not remember seeing Mr. Ismail again that day.
The next time she saw Mr. Ismail was Tuesday morning, when he stopped by her office and said he was going sight-seeing. Tuesday evening he had come to her house by taxi, and they visited for a while. They then drove around to some little shops. At the time … and on Monday … he had been wearing the gray suit. They had also discussed business opportunities, and she had driven him by various gas stations and liquor stores. She had then driven him back to the PSA Hotel.
Ms. Benjamin stated that she had seen Mr. Ismail on Wednesday morning, November 5, when he dropped by her office, and again later that afternoon. In the evening she had spoken with him on the telephone. He had been wearing slacks and a sport shirt when he dropped by to see her.
The testimony continued, and Ms. Benjamin stated that she had seen Mr. Ismail again on Thursday, November 6, when he had stopped by her office to greet her. At that time he had mentioned that he would be leaving. Mr. Lazar had told her to have coffee or lunch with Mr. Ismail, which she did, and then she walked to the lobby of the hotel with him and they said good-bye. It was her understanding that he was going to the downtown airline terminal. He was wearing his suit. She did not know whether he took any luggage with him. Ms. Benjamin stated that at no time did she see Mr. Ismail with a gun, nor did he at any time indicate to her that he had a gun.
During her testimony Ms. Benjamin stated that she and Mr. Ismail had not discussed politics, but that the Assyrian Universal Alliance had come up in the course of a conversation. She said that she is not a member of the organization, but is planning to join it. She also indicated that Mr. Ismail was not a member, and that several times he had told her that he was not interested in politics and wanted nothing to do with politics. The Patriarch was not mentioned in their conversations.
A Christmas card was then presented to the court and marked People’s Exhibit No. 29. Ms. Benjamin identified the handwriting on the card as hers, and said that she had sent the card to Mr. Ismail at 94 Celia Avenue, London, Ontario, Canada. The date on the card was December 14, 1973, and the message was: "A Merry Christmas and a Happy New Year, Love, Kitty Benjamin, God Bless you, keep the good work up for the A. U. A. " She stated that the A. U. A. was a peaceful organization, and regarding Mr. Ismail’s work for them she said: "At that time they were in a project to collect clothing and articles to send to our people who were in need in the northern part of Iraq. And everybody was working, to my knowledge, to support this cause. " She again stated that she did not belong to the A. U. A. because she is involved in other organizations which take up much of her time.
Ms. Benjamin then said that she knew Mr. Ismail’s brother, Zaia, and that he is a member of the A. U. A. It was her understanding that "they are trying to establish an autonomous state within the boundaries of the country of Iraq". She also said that she is not a member of the Church of the East, but that she had heard of the Patriarch, and understood that he was the religious and political leader of the Assyrian people.
When questioned further about Mr. Ismail’s trip to San Francisco, Ms. Benjamin stated that it was both for business and sight-seeing. He had never been here before, and he was interested in seeing what business opportunities were available. He had discussed business opportunities with both her and Mr. Yule Lazar. She said she had taken him by some businesses owned by Assyrian people, but that they didn’t go in. She also stated that she herself did not own any business.
Ms. Benjamin told the court she had never called the Patriarch’s house. She also told the court that she had discussed the Assyrian Universal Alliance with Mr. Lazar, but not in depth because she was not interested in politics.
When questioned again by Mr. Robinson concerning Friday, October 31, Ms. Benjamin stated that she did not really remember whether Mr. Ismail had had dinner with her or Mr. Lazar, but indicated that it probably had been with Mr. Lazar, as she knew that Mr. Lazar and Mr. Ismail had dined together at some time. She also said that Mr. Ismail had not asked her to lend him any money. Ms. Benjamin then told the court that she visited Mr. Ismail in jail every Sunday, but that she was not contributing money to his defense fund. She was making her contribution in another way, and she didn’t really know who had contributed money to the fund.
Mr. Pestarino then began his cross-examination and questioned Ms. Benjamin regarding the A. U. A. Ms. Benjamin stated that she wished to join because: "They are a peaceful political group, but they are also concerned with the Assyrian culture and heritage, of which I am very proud, and I want to work for this cause … Assyrians from any religion, denomination, or organization belong to the A. U. A. They belong to more than one organization, but most of the Assyrians belong to the A. U. A. It is an organization that is uniting our people throughout the world. And every year they hold an annual congress in a country … wherever they vote to have it … They are at present working simultaneously with the Assyrian-American National Federation to help the Assyrian people in Lebanon during the civil strife which is going on there. We have many thousands of Assyrians who are refugees in Lebanon … they are working through the World Council of Churches to relocate and get them out of these camps that they are stuck in right now. They are helping them with money … some monies … but the World Council of Churches is mainly the organ that is helping to relocate these people. Ms. Benjamin went on to state that about ten years ago in San Francisco she had the Assyrian-American for one Hour, and that she is very active in the Assyrian organizations between San Francisco and Los Angeles. The two to which she belongs are the American-Assyrian Association of San Francisco and the Assyrian Athletic Club, which is a soccer organization. She had heard some time ago that the Patriarch of the Church of the East had married, and stated that the general reaction of the Assyrian people was that he had broken the rule of the church when he had married. She understood that the Patriarch had defrocked himself in Seattle just before his marriage.
Kitty Benjamin then testified that the conventions at which she had seen Mr. Ismail were of the Assyrian-American National Federation. She also stated that she had talked to Mr. Ismail’s brothers on the phone, and that she had seen his father. During Mr. Ismail’s recent visit with her she had told him of the memorial service held in Turlock for his father, and Mr. Ismail had mentioned that he missed his father very much.
Ms. Benjamin then said she had paid Mr. Ismail’s bill at the Sunset Motel because he was her guest there, but that she did not pay his bill at the PSA Hotel, as she had had nothing to do with his registering there. When asked about her relationship with Mr. Lazar, she said that she had met him in 1975, and had started working for him in September of that year. She said that he was the controller of the PSA Hotel, that he was very sharp with figures, and was an excellent bookkeeper. She also said that she saw him mainly at work, and that she did not socialize with him, but that occasionally she saw him at parties and had been on the radio program with him a few times.
Mr. Robinson then conducted a redirect examination of Ms. Benjamin in which she testified that the Assyrian community had not really accepted the fact that the Patriarch had married. The subject had just become quiet, as it was mainly the concern of the Assyrians who belonged to the Church of the East. She also stated that it was her understanding that at the time of the Patriarch’s death, the bishops were running the church, and that he was no longer the Leader.
Mr. Robinson then asked Miss Benjamin whether she had known that Mr. Ismail was unemployed when he came to San Francisco. She said that she knew that Mr. Ismail was not employed, but did not know for how long. She and Mr. Ismail had not discussed money.
The next witness called identified himself as Larry Joe Crowley, and stated that he was the son-in-law of Mrs. Edith Hart, and that he and his wife had been helping out at the Sunset Motel on October 30, 1975, while Mr. And Mrs. Hart were out of town. Mr. Crowley was presented with People’s Exhibit No. 19, and identified it as a registration card from the Sunset Motel, and said that a lady he knew as Mrs. Benjamin had filled out the card so that the person who was coming to the room wouldn’t have to stop and sign in. At the time, she paid one day in advance for the room. When the individual Mr. Crowley knew as Mr. Benjamin checked into the motel, he was wearing a casual shirt and slacks and a short leather jacket. He was with Mrs. Benjamin. At that time, Mr. Crowley gave Mrs. Benjamin the key, and Mrs. Benjamin took the gentleman to the room. Mr. Crowley stated here that he had offered to give Mrs. Benjamin the key earlier, but she had declined to take it at that time. Mrs. Benjamin and the gentleman had arrived at the motel between 8:00 and 9:00 p. m. on the evening of October 30. Mr. Crowley identified Mr. Ismail as being the man he knew as Mr. Benjamin. Mr. Crowley then testified that the following morning, Friday, October 31, Mr. Ismail had asked for directions to the zoo, and that he told him how to get there. He also stated that Mrs. Benjamin had called for Mr. Benjamin, and that a call from Los Angeles came in asking for someone by a name he didn’t recognize. However, it was determined that the call was for Mr. Benjamin, as the party asked for the gentleman in room l. Mr. Benjamin was out at the time both calls were received, so Mr. Crowley took the messages. The caller from Los Angeles didn’t leave a number. Mr. Crowley stated that upon his return to the motel, Mr. Benjamin called Los Angeles and made a couple of local calls. He then asked how to get to an address on Judah Street. Mr. Crowley gave him directions.
Mr. Crowley testified further that Friday night, October 31, he couldn’t sleep and was up watching television. At the time, he and his wife were occupying an apartment in the Sunset Motel which was directly above the registration desk and room l. The apartment had a large window with a view of the parking area. Between midnight and 1:00 a. m. Mr. Crowley saw a government interagency car pull into the parking lot directly behind the car in space 10. Mr. Crowley watched the car, as it could have been blocking another car’s exit from the parking lot. Two men wearing Khaki uniforms got out of the car and went into room l. After 10 or 15 minutes they got into their car and left. Mr. Crowley saw Mr. Benjamin accompany them to the car; he then went back to his room. Shortly thereafter, another car pulled into the parking lot, and a man in a suit got out and went to unit l. He stayed about 10 or 15 minutes, and then came out with Mr. Benjamin, and both men left in the car. Mr. Crowley was still awake when they returned, about 2:30 or 3:00 a. m. Mr. Crowley then said that the following morning, Saturday, November 1, Mr. Benjamin asked whether he could keep his luggage in the office, as he didn’t know if he was going to stay another night. Mr. Crowley put the luggage, consisting of two suitcases, a shaving bag, and a clothing bag, beneath the stairwell. Later that evening Mr. Benjamin and another man and Mrs. Benjamin came to the motel for Mr. Benjamin’s luggage. This was between 7:00 and 8:00 p. m. Mr. Crowley stated that Mr. Benjamin was wearing a shirt and slacks and a leather jacket. When he was shown People’s Exhibit No. 10-BB, Mr. Crowley stated that he had not seen Mr. Benjamin wearing the suit shown in the photograph.
Mr. Crowley was then cross-examined by Attorney Pestarino, and a redirect examination was conducted by Attorney Robinson.
Sergeant Aubrey Raymond Parrott was then called for redirect examination by Attorney Robinson. A brown vinyl leather zippered bag, marked as People'’ Exhibit No. 30, was identified by Sergeant Parrott as being the one he photographed at the Oasis Motel. Sergeant Parrott stated that the bag was the only piece of luggage in the room at the Oasis Motel at the time he entered it. Attorney Pestarino then recross-examined Sergeant Parrott.
Sandra Lee Haynes, a clerk-typist for the San Jose Police Department, was the next witness called. She testified that she had taken the fingerprints marked People’s Exhibit No. 24-A through 24-D, early on the morning of November 7, 1975, Miss Haynes identified the defendant as the person whose prints she had taken at that time.
The next witness, S. Henry Inami, a criminologist for the County of Santa Clara, identified People’s Exhibits Nos. 2,3,4 and 9, as the evidence presented to him on November 12. He had concluded that the bullets had been fired by the gun, and explained how his tests and examinations were conducted.
The stipulation was then made that the blood and urine were properly taken and analyzed, and that the results showed a blood alcohol percentage of 0. 08, and a negative report on drugs or other barbiturates.
Attorney Pestarino then conducted a cross-examination of the witness. The diagrams which Mr. Inami drew during his testimony were marked as People’s Exhibit Nos. 31-A and 31-B. During the recross-examination, the effects of alcohol on an individual were discussed. Attorney Robinson then conducted a redirect examination of the witness. Attorney Pestarino then questioned Mr. Inami again, as did Attorney Robinson. A third diagram drawn by Mr. Inami during his testimony was marked Defendant’s Exhibit C.
Mr. Frederick Samuel Kelaita was the next witness called. He stated that he is a businessman in San Mateo County, and that he knew the Patriarch, Mar Shimun XXIII, well. He is a member of the Church of the East, and had a relationship with him through his activities with the church, and he also knew the Patriarch through a family relationship, as he is married to the Patriarch’s sister. Mr. Kelaita then gave a brief history of the Church of the East. He also gave a brief background on the Patriarch. He went on to state that many times he helped the Patriarch with correspondence, and at times he arranged appointments with the Patriarch for various people. As the Patriarch would never see a layman without a third person being present. He sometimes was present during the appointments. He was not, however, present during meetings with other clergy. Mr. Kelaita also stated that because of his position as head of the Church of the East, it was difficult for the Patriarch to have close friends.
During his testimony, Mr. Kelaita stated that his nationality is Assyrian, and that he had been born in Russia, but had come to this country in 1949. He went on to say that he is not a member of the Assyrian Universal Alliance, and that he does not agree with their political aims.
Mr. Kelaita told the court that he had met the defendant’s father, General Ismail, and that the general was loved and respected by the Patriarch, although the Patriarch did not always agree with his political activities. The Patriarch had mentioned that he felt General Ismail’s political involvement were brought on by his sons. He also testified that he knew a man named Sargis Michael, who wrote articles for a newspaper, the Assyrian Star, and that Mr. Michaels had contacted him for an appointment with the Patriarch, and that the Patriarch had finally consented to see Mr. Michaels. Mr. Michaels wanted the Patriarch to be both a spiritual leader and a political leader of the Assyrian people, but the Patriarch believed that the church should not be involved in political activities.
The testimony continued, and Mr. Kelaita stated that during the first week of January, 1973, the Patriarch had announced his resignation as head of the church. However, the bishops of the church came to him and requested him to stay on for six months so that a successor could be elected. In August, 1973, the Patriarch telephoned Mr. Kelaita and told him that he would be married. It seemed to be the general feeling of the Assyrian people that the Patriarch had broken the law of the church. The bishops of the church then held a meeting and wrote to the Patriarch that he was no longer Patriarch. The Patriarch later wrote a letter to the bishops regarding his position and the laws of the church, and the bishops got together and reversed their decision, and asked the Patriarch to continue as head of the church.
Mr. Kelaita then testified that David Ismail had not contacted him for an appointment with the Patriarch, nor did he know that Mr. Ismail was in the area. He also stated that the Patriarch did not see anyone without an appointment. Attorney Pestarino then cross-examined Mr. Kelaita.
Mr. Yule Lazar was then recalled to the witness stand, and cross-examination by Attorney Pestarino continued. Mr. Lazar testified that Ron Myers had come to work for him as a part-time mechanic, and that he later sold his Union 76 station to Mr. Myers, but the transaction was done directly through the Union 76 people. Mr. Lazar said that he did not receive a note from Mr. Myers for $600, nor did he have any direct dealings with Mr. Myers during the transaction other than selling him some miscellaneous merchandise, which Mr. Myers purchased for $32. 65. and giving Mr. Myers $42. 13 in change for the same sum in paper money. Mr. Lazar again stated that he saw Mr. Myers only twice after Mr. Myers took possession of the service station.
Mr. Lazar continued his testimony, stating that his two brothers, Joe and Sam, run service stations, and that government cars are serviced at one of the stations. He went on to say that he had called his brother Joe to go to the Sunset Motel and bring Mr. Ismail to the PSA Hotel if he had a car that needed to be road-tested, and that his brother did bring Mr. Ismail to the PSA Hotel, but that he didn’t see what kind of car he was driving. Mr. Lazar testified that he did not see Mr. Ismail at the Sunset Motel. He then stated that on Friday night he and Mr. Ismail had dinner together, and that around 10:30 or 11:00 he drove Mr. Ismail to the Sunset Motel, and then back to the PSA Hotel. He also testified that on Sunday morning he drove Mr. Ismail to the Church of the East at 3939 Lawton Avenue.
Mr. Lazar again testified that he had never owned a gun, and that he did not suggest to Ron Myers that he buy a gun.
At that time, certain papers pertaining to the gas station were marked as Defendant’s Exhibit D-1 and D-2. Other documents were marked as Defendant’s Exhibit E. Mr. Robinson then conducted a redirect examination of Mr. Lazar.
Mr. Lazar testified that he brought the papers marked as Exhibits to the court room voluntarily, and again said that he had never owned a gun, and did not know of Siegle’s Sportman’s Supply. He also said that he sold the station to Ron Myers at a loss.
Mr. Lazar testified that his brother, Joe, works in a gas station at 6th and Harrison streets, and that the trip from that station to his house would take about six or seven minutes. His attention was then called to the phone slips for the calls Mr. Ismail had made November 6, and he stated that such information was kept in case the hotel’s guests didn’t pay for the phone calls, so that the party who received the call could be made to pay for it.
Mr. Lazar then said that he had been told by Mr. Ismail that he was interested in relocating to San Francisco, and they discussed this only briefly. He testified that he didn’t know whether Mr. Ismail had any money, or whether he was employed. He then testified that he didn’t know that there was a defense fund set up for Mr. Ismail, and that he had not been approached by Kitty Benjamin for contributions to a defense fund for Mr. Ismail.
Attorney Robinson then questioned Mr. Lazar about the luggage Mr. Ismail had at the time Mr. Lazar picked him up at the Sunset Motel. Mr. Lazar said that Mr. Ismail put his luggage in the trunk of the car, and that he didn’t know exactly what kind of luggage it was, or how many pieces Mr. Ismail had. He also stated that Mr. Ismail was dressed casually at the time. When Shown People’s Exhibit No. 30, Mr. Lazar stated that he did not recognize it. At this point the trial was adjourned until Monday, March 22, 1976, at 9:45 a. m.
The defendant, David Malek Ismail, was called to the stand by Attorney Pestarino. Mr. Ismail gave his address as 1497 Huron Street, apartment 402, London, Ontario, Canada, and stated that he is married to Peggy Benjamin Ismail, and that they have an adopted son who is 12 years old. He stated that from November, 1974, he had been unemployed and that he had sold his home and had been living off the proceeds of the sale. He had been born in Syria in 1935, and had moved about the Middle East with his father while he was a child. He had immigrated to Canada when he was approximately 30 years old. Mr. Ismail stated that his father had been a member of the Church of the East, and that he was a very religious man. Mr. Ismail himself had been baptized in the Church of the East, and attended church regularly with his father.
Mr. Ismail testified that he first met the Patriarch in 1962, in Damascus, when he and his wife went to ask that special prayers be said so that they could have a child. At the time, Mr. Ismail and his wife had had their picture taken with the Patriarch, and this picture was presented to the court and marked Defense Exhibit F. Mr. Ismail also testified that he had lived with his father until the time of his marriage, and that his relationship with his father was very close. He stated that his family had always supported the Patriarch, and that when he was a child living with his father, his father had thrown some people out of the village who did not support the Patriarch.
Mr. Ismail said that he had known Mrs. Emama Shimun and her family, and had visited them since 1969, perhaps twice a year. He also stated that at that time he was too busy earning a living and teaching his son to be interested in politics.
Mr. Ismail testified further that he had always wanted to become a member of the Assyrian military, but that they wouldn’t accept him because he lost the hearing in his right ear through a childhood accident. He had been playing with some other boys and had fallen and hit his head. He was hospitalized for some two or three weeks. He then stated that in 1972 or 1973 he had had surgery on his right ear. Additional testimony was given that in 1960 Mr. Ismail had had a car accident, and had lost his memory for six or seven months. He had been about twenty-five at the time, and when he injured his ear he had been about eight. Mr. Ismail indicated that during the time he had lost his memory, his father had kept a diary for him. At this time Mr. Ismail also testified that at the age of fifteen, he had suffered from a severe fever. In response to a question by Attorney Pestarino, Mr. Ismail testified that after his ear injury he had had difficulty learning in school, and that he couldn’t remember things he had read.
By the time he was interested in going into the military, his father had retired from the military service. Mr. Ismail said that his father had taught him about guns from the time he was ten years old, and that they had practiced shooting together every week. He stated that he had rarely used a rifle, but that he was very familiar with pistols, and that he had fired a weapon similar to that marked People’s Exhibit No. 4 on many occasions. When he was living in the Middle East, he had always carried a gun, but it wasn’t loaded. Mr. Ismail also said that while he was living in Canada he owned three guns and always carried one in his car. Sometimes he would carry a gun in his pocket.
Mr. Ismail testified that while he was living in Canada he made several trips to the United States. Several times he had gone to Michigan to see the Patriarch, and he had also been to Chicago twice. He stated that he had carried his gun with him on these trips, and that his friends all knew that he carried a gun.
The defendant then testified that he could not sleep without two or three shots of Johnny Walker Scotch, and had drunk every day since 1973. He then stated that there were times he would have a few drinks and not remember his actions.
At this time a letter to the Patriarch from Mr. Ismail’s father, and the reply from the Patriarch, were presented to the court and marked as Defense Exhibit G. Other correspondence was also presented to the court, and these documents were marked Defense Exhibit H. Mr. Ismail testified that Defense Exhibit G was a letter which his father had written to the Patriarch, asking permission to skip certain fasts because of his health, and the reply indicated the Patriarch’s permission.
Regarding Exhibit H, Mr. Ismail testified that the first document was a letter dated February 20, 1975, which he had received from the Patriarch, and he translated it as follows: "I received your letter dated February the 2, ’75, about Hormis d’Malik Ismail. As I told you in the telephone, should Hormis write himself to me. There is telegraph from Chicago against me, and there is your uncle’s name, and your cousin’s name, and your brother’s name. Send it to bishop – high bishop in the Middle East. And we are so glad that we know that nobody – not any member in your family – knows about that letter – that telegram sent from Chicago. Could you send telegram against that telegram that supports us? Send to Middle East to the bishop that we accept the Patriarch. And I send you a copy of telegram … and when you send the telegraph send me copy of that. " Mr. Ismail then said that in a telephone conversation in January, 1975, he had told the Patriarch that "we didn’t sign nothing against you. " He also testified that after that, he had two more phone conversations with the Patriarch. He thought they had been in January, 1975.
Mr. Ismail then identified the second document from Defense Exhibit H as a night letter which had been enclosed with the letter dated February 20, 1975, from the Patriarch. At this time it was determined that the defendant’s knowledge of the English language was not sufficient to read the night letter, and the Judge read it to the court: "Mar Yosip, Metropolitan, care of Mar Aprim Khamis house number 10B/4, Karradat Mariam, Baghdad, Iraq. We have been horrified to learn that Messrs. Aprim De Baz, Ninos Andrews, Ashor Solomon, and Mike Rashu have sent a telegraphic resolution to you and other bishops on February 8th, against His Holiness, Mar Eshai Shimun the 23rd, Catholicos Patriarch of the East, in the name of many purported members of the church in Chicago and Canada, including the names of several members of the house of Malik Ismail. We denounce the deceitful action of these men, who have written our names without our knowledge or permission … Dinkha Malik Ismail and David Malik Ismail … Copy to His Holiness, the Patriarch. "
The defendant then testified that he did not mail the night letter, and had kept it because he wanted to discuss it with the Patriarch.
Mr. Ismail’s further testimony was that he had become very upset when he learned of Patriarch’s marriage in 1973, and it affected him so much that he couldn’t work. He had telephoned his father in Beirut, Lebanon, and had then flown there to see him. Mar Ismail said that his father was reluctant to discuss the Patriarch’s marriage, and that he seemed "very changed". Mr. Ismail stated that at this time he started to drink heavily. He also said that he had always loved and respected the Patriarch, but after the Patriarch’s marriage, he decided not to support him any longer. However, after visiting with Mrs. Shimun’s mother and father, he changed his mind.
The defendant then testified that he had purchased a one-way ticket to San Francisco, as he was thinking of visiting some other cities before returning to Canada. He wanted to leave Canada because of the cold, and was thinking of purchasing a small business, maybe in San Francisco, with money he would receive from selling his land in Syria. He stated that he arrived in San Francisco on Thursday, October 30, 1975, and that Kitty Benjamin had met him at the airport around 7:00 or 8:00 p. m. He had called her from Canada, asking her to meet him. Ms. Benjamin then drove him to the Sunset Motel, and she gave him the room key. He put his luggage, consisting of a small bag, a medium-sized suitcase, and a suit bag, in the room, and they then went to Mr. Benjamin’s mother’s house for dinner. Mr. Ismail returned about 11:00 or 11:30 that evening.
Testimony continued. On Friday Mr. Ismail had gone to the motel’s office and made a telephone call to Sam Lazar. Mr. Lazar said that he was busy, but that he would ask his brother to show Mr. Ismail San Francisco. Mr. Ismail said that he had first seen Mr. Crowley, the clerk at the motel, on Friday around noon, when he had inquired of Mr. Crowley how to get to the zoo. Mr. Crowley had addressed the defendant as Mr. Benjamin, and the defendant had given him his correct name. Mr. Ismail went to the zoo by bus. Friday evening Yule Lazar had invited Mr. Ismail to dinner, and said he would pick him up at 7:00 p. m. Around 7:10 p. m. Mr. Ismail had gone to the office and asked Mr. Crowley if he could use the phone. After a short time, two men arrived and one identified himself as Yule Lazar’s brother, and said that he had come to get Mr. Ismail, as Yule was busy. Mr. Ismail then went back to his room for cigarettes, and left with the two men, who were in a station wagon with some writing on the door. The men were dressed in work clothes, according to Mr. Ismail. They then drove to the hotel where Kitty Benjamin and Yule Lazar worked, and Mr. Ismail was introduced to Yule Lazar. Mr. Ismail had no luggage with him at that time. He and Yule Lazar had a few drinks and dinner in the hotel’s dining room, and Mr. Lazar drove him back to the Sunset Motel about 10:00 or 10:30 – maybe 11:00 p. m. -- . Mr. Lazar did not get out of the car. Mr. Ismail stated that on Friday, October 30, he had made a call to Los Angeles, to his brother-in-law’s brother, and no one answered.
Mr. Ismail then testified that on Friday, October 31, about 5:00 p. m. , he had gone to a bar to pass some time, and "was drinking Johnny Walker by himself. There were a couple guys sitting there too, a little far from me. " Mr. Ismail was then asked if he had seen People’s Exhibit No. 4. He said that he purchased the gun from one of the two men who had been in the bar. One of the men left and the other came to talk to Mr. Ismail. The man was between 40 and 45, was unshaven, and had some kind of scar of the left side of his face. Mr. Ismail bought the man a beer, and when it was finished the man asked Mr. Ismail to buy him another beer. When Mr. Ismail told him he didn’t have enough money, the man showed him a gun – People’s Exhibit No. 4 – and offered to sell it for $20. Mr. Ismail thought it was good buy, and gave the man $20. He then took the gun, put it under his shirt, and put the two clips into his pants pockets. Mr. Ismail then got up to leave, and when the man asked where he was going, he said he’d be back in a minute, and left his cigarette, some change, and his drink at the bar and went back to the motel. When Mr. Ismail arrived at the motel he put the gun in the small bag.
When he saw Yule Lazar later that evening, Mr. Ismail asked whether Mr. Lazar could get him a room at the hotel where he worked, as he was not satisfied with his room at the Sunset Motel. When he went to pay his bill at the motel he was informed that it had already been paid, and later he found out that Kitty Benjamin had paid the bill. He checked into the Franciscan Hotel on Saturday. Saturday night Mr. Ismail had invited Mr. Lazar to join him for dinner, and Mr. Lazar had driven to the restaurant. At that time Mr. Ismail asked Mr. Lazar if he would take him to church Sunday morning, and Mr. Lazar agreed. Mr. Ismail had carried the gun with him during the time he was in San Francisco, with the exception of Sunday morning when he attended church, and at that time he had left it in the small bag in his room.
The defendant testified that during his stay at the Franciscan he made several phone calls. One was to his wife in Canada, and a friend who was visiting in his room. Eshaia d’Mar Shimun, spoke to Mrs. Ismail also, Mr. Ismail and Eshaia d’Mar Shimun had met at church on Sunday, and Mr. Ismail had visited at his home until 5:00 or 6:00 p. m. that evening when Eshaia d’Mar Shimun drove him back to his hotel. The defendant stated that the call to Canada was the only one he made on Sunday. On Tuesday or Wednesday he had tried to call his niece, Werdia Shimun, in Australia. The person who answered the phone told Mr. Ismail that Werdia Shimun had moved, and that he didn’t know her street address or her phone number, but gave the name of the city. Right after that Mr. Ismail placed a call to Yule Kanna in Sidney, Australia, who was a close friend of his niece’s husband, to try to locate his niece.
Mr. Ismail stated that he left San Francisco about 2:00 p. m. on Thursday, November 6, by bus for San Jose. Before he got on the bus he had stopped at a bar near the bus depot and had a couple of drinks. He also bought a pint bottle of Johnny Walker Scotch, which he put in the small bag. In addition to the small bag he had his suitcase with him. He had rolled up the suit-bag and had put it in the suitcase. At the time, he was wearing the gray suit, a black shirt, and a light-colored tie. He had the gun and the clips in his pockets. When he arrived in San Jose he hailed a yellow cab and asked the driver to take him to a motel close to south San Jose and Cottle. He took him to Cottle and Santa Teresa where he had noticed a plaza with shops, restaurants, and a pizza parlor. There were no motels there, and the driver had turned around and taken him to the Oasis Motel not far from Cottle. He took his luggage and registered. When he got to his room he called the front desk and asked where the nearest restaurant was. He was directed to a steak house. They were not serving dinner at the time, so Mr. Ismail had a double shot of Johnny Walker and helped himself to some crackers and cheese which the waiter served him. He then went back to the motel and asked the front desk to call him a taxi. He had two drinks while he was waiting for the taxi. The defendant said that he had put a little water into each drink, and that he did not remember whether he had finished the second drink when the taxi came. He asked the taxi driver to take him to Cottle and Santa Teresa. He stated that he did not remember asking the driver about Woosley Street or looking at a map, but he was familiar with the name from correspondence with the Patriarch, and that during a telephone conversation with the Patriarch and the Patriarch’s father-in-law he understood that it was not far from Cottle.
Mr. Ismail went into the pizza parlor and ordered a pizza, and while he was waiting he had two beers. He ate a little of the pizza and felt sick, so he decided to get some fresh air. At this time he decided to see Mar Shimun so that he wouldn’t have to wait till the next day and could go home earlier. He walked to Mar Shimun’s residence from the pizza parlor, and he had some trouble finding the house. Mr. Ismail testified that he did not remember whether he rang the bell or knocked on the door. The door was opened by Mar Shimun, and Mr. Ismail knelt and kissed the Patriarch’s hand. The Patriarch let Mr. Ismail into the house, and they talked briefly about the Assyrians in Canada, Iraq and Syria. During the conversation Mr. Ismail told the Patriarch: "Kessy, don’t come back again because most of the people, they don’t like the Patriarch get married, and you are retired now …" Mr. Ismail stated that he was nervous and shaking for having spoken to the Patriarch in that way, and that the Patriarch got very upset and asked him to leave. He stated also that the Patriarch had slapped and kicked him and spat in his face, and that he fell down. He also stated that the Patriarch said some bad things about his father, Malek Yacoub Ismail. Mr. Ismail then testified that he didn’t remember anything after that.
Attorney Pestarino then continued his questioning, and Mr. Ismail testified further that he remembered having the gun with him, but that it wasn’t loaded, because he never carried a loaded gun. He did not remember shooting the gun. Mr. Ismail then testified that he had vague memories: "I remember as a dream. I see … I see one officer, and that is all . . . I think my hands on the wall … some wall, some place… I remember see one lady, and she said something about my suit. I don’t know what she said. I wasn’t paying attention. I don’t know what she was doing. That’s all … Yeah, before that I remember I sitting, beer in front of me. I don’t know where about. But I think it is same place … be the pizza place … and I don’t know why, how, I get there or why I sit down drinking. I was … have a shower, and one police officer, he was there, and he take my suit … that suit … and another two officers, they take me some place upstairs … third floor, second floor … I don’t remember. "
Mr. Ismail then stated that he had not heard of the A. U. A. until sometime in October, when he had signed up to become a member. He had heard that it was an organization designed to unite the Assyrian people. Mr. Ismail also said that he had not been angry with the Patriarch personally, or any of the members of his family; that he had not planned to shoot the Patriarch, and had not been paid to do it. However, he could not accept that the Patriarch had called his father a bad name and "… I just got upset. I don’t know what happened to me … what … I lost everything that I had. "
Cross-examination of Mr. Ismail by Attorney Robinson then again. Mr. Ismail testified that he thought it was a little unusual for a stranger in a bar to offer to sell him a gun, but that $20 was a good price for the gun, so he bought it. He said that he did not mention this to Mr. Lazar, as he did not know Mr. Lazar that well. He again stated that he did not get involved with the Assyrian Universal Alliance until October, 1975, and that since his brothers were involved, Kitty Benjamin had probably thought he was involved too, and had mentioned it in her Christmas card to him. Mr. Ismail also testified that he did not attend the church services on Sunday because they were over when Mr. Lazar dropped him at the church. He did not partake of the breakfast.
Attorney Robinson pointed out that Mr. Ismail had testified earlier that when he was going to see somebody important he wouldn’t bring his gun, but if he were seeing friends he would carry the gun. When asked why he was carrying the gun the night he went to the Patriarch’s house, Mr. Ismail said he hadn’t decided to go there until after dinner, and that he had asked the cab driver for directions so that he would know how to get to the Patriarch’s house the next day and not be over-charged by a taxi driver. Attorney Robinson then asked that People’s Exhibits Nos. 15 and 16, the notebook and address book, be bought out and shown to Mr. Ismail. Mr. Ismail testified that he had the Patriarch’s name, address, and phone number in the book.
The defendant then stated that he had seen the Patriarch twice while he was visiting in Michigan, but that he had never seen the Patriarch by himself in his house. He said he was looking forward to seeing the Patriarch, but he had not discussed it with anyone or told anyone he planned to see the Patriarch. He also said that he had not discussed politics with either Kitty Benjamin or Yule Lazar, and that he didn’t know that Yule was the head of the Assyrian Alliance in San Francisco "until he said it in here". The defendant then said that he had known the Patriarch’s wife since 1961, and that he didn’t remember discussing either politics or religion with her. He also said that he knew of his brother Zaia’s political involvement, but didn’t know to what extent it was.
Regarding his hearing, Mr. Ismail stated that he heard only with his left ear, and even though his right ear was operated on he still experienced the same type of headaches he had had before the operation … sometimes two or three times a month. He had had a headache the first day he was in San Francisco, but he did not have a headache the night the Patriarch was killed.
David Ismail testified that he had started drinking in 1973 when he learned of the Patriarch’s marriage, and that his father learned of the drinking when David visited him in Lebanon. Mr. Ismail stated that his father had sent him the money for the trip. He thought that his brother, Zaia, was in Iraq at that time.
During the cross-examination Mr. Ismail testified that at times, when he had been drinking, he lost his temper; and that twice he had argued with his wife over her objections to his seeing his father.
Regarding the letter written to Mr. Ismail by the Patriarch, Mr. Ismail testified; "I told him I received the telegram, but I don’t tell him that I send it; or I told him if I send it, I going to send you copy. " Mr. Ismail said that he had not telephoned the Patriarch and indicated that he would go to the Middle East and kill the people who were talking against him.
Mr. Ismail told the court that he didn’t know if his wife knew he was taking a trip to San Francisco. At the time he had had about $400 in his pocket, and $80 . . Canadian . . in his suitcase. He bought a one-way plane ticket, since he planned to go by bus from San Francisco to Denver to visit his cousin, and from there he planned to go by bus to Chicago. He stated that his wife had not believed that he was in San Francisco until she spoke with Eshaia d’Mar Shimun, the Patriarch’s cousin, who was visiting in Mr. Ismail’s hotel room at the time. Mr. Ismail stated that he did not discuss the Patriarch with Eshaia d’Mar Shimun. He stated that he was thinking of moving from Canada, and that the main purpose of his trip to San Francisco was to check out the weather, housing, and business opportunities. He did not inquire about the costs involved, as he was waiting to hear from his cousin as to how much money he had.
When questioned about his drinking, Mr. Ismail said that during the course of his visit to San Francisco he had had drinks, but that he had not become drunk. He also said that he drank a good deal more than he usually did the day he was in San Jose because he was alone and didn’t know how to spend the day. Mr. Ismail said that Monday, when he was in San Francisco, he borrowed Yule Lazar’s car and drove to Eshaia’s home, and visited there until about 6:00 p. m. Also on Tuesday and Wednesday he did the same. Mr. Ismail also said that when he was at the Sunset Motel he bought a bottle of Johnny Walker Scotch and took it with him to the hotel, where he finished it Wednesday night.
David Ismail went on to say that when he checked out of the Sunset Motel and was told by the clerk that the bill had been paid, he assumed Mr. Lazar had paid it, because he was the one who picked him up. He had left his luggage with the motel clerk. Saturday evening, sometime between 5:00 and 7:00, Mr. Lazar drove Mr. Ismail back to the Sunset Motel to pick up his luggage. Mr. Ismail stated that Kitty Benjamin was not with them. When he left San Francisco, Mr. Ismail did not tell either Kitty Benjamin or Yule Lazar where he was going. At this time Attorney Robinson asked Mr. Ismail whether Ronnie Myers, who had testified earlier, was the fellow who sold him the gun. Mr. Ismail said "no". When asked why he decided to call his niece in Australia, Mr. Ismail said: "Maybe I was drunk, that’s why. I don’t know. "
Mr. Ismail testified that he met Mr. Kanna in 1972 when Mr. Kanna came to visit General Ismail. He stated that he didn’t know that Mr. Kanna was publishing articles against the Patriarch, or that he was a member of the Assyrian Universal Alliance. He did know that Mr. Kanna was very close to his niece’s husband, and he called Mr. Kanna only to find out about his niece.
Under cross-examination by Attorney Robinson, Mr. Ismail testified that he did not remember whether he had knocked at the Patriarch’s door or rung the bell. The door had been opened by the Patriarch, and Mr. Ismail had knelt before him and kissed his hand. He then followed the Patriarch into the house. He did not know whether the front door was open or shut at this time. Mr. Ismail was unable to describe the interior of the Patriarch’s house. He stated that the Patriarch turned to him as if to speak, but "I told him that Assyrian, they don’t like to be … Patriarch to be … back, because you are married … I told him that I don’t mind myself, but I can’t send that telegraph you give it to me. " Mr. Ismail said that the Patriarch then became upset and slapped him with his open hand, and then slapped him a second time. Mr. Ismail stated that he felt ashamed and mad at himself. He said that the Patriarch then grabbed him and shouted at him in Assyrian to get out, and kicked him. Mr. Ismail said that he fell down at this point, and the Patriarch then spat in his face and spoke ill of his father. The defendant stated that he did not care to repeat the words used by the Patriarch, but after the judge intervened he spoke the words "razel brona d’razel d’kopa b’rona d’kopa. " The judge then told Mr. Ismail to write the words, first in Assyrian and then in English, and the document was marked People Exhibit No. 32. Mr. Ismail stated again that when he went to the Patriarch’s house it was not with the intent to kill him.
Attorney Pestarino then conducted a redirect examination of David Malek Ismail. During this time there was discussion among the attorneys and the court as to whether Mr. Ismail needed an interpreter. However, Mr. Ismail felt that he did not need one.
Robert Vola of 1951 Emerald Street, Concord, was then called. He stated that he is employed by Union Oil Company as resident manager of the San Jose sales office, and that at the time of the transaction between Messrs. Lazar and Myers he was the retail representative who handled the sale. Mr. Vola stated that he was testifying mainly from memory, as Union Oil’s records had been moved since that time. The station was leased to Mr. Lazar on October 17 according to Defense Exhibits Nos. D-4, D-5, and D-6. Sometime later Mr. Lazar had given Union Oil Company written notice that he wished to terminate his lease, and an ad was put in the paper. One of the people who responded to the ad was Ron Myers. Mr. Vola stated that he met with Mr. and Mrs. Myers several times and discussed leasing the station. Mr. Myers attended a four-week dealer training school. Mr. Vola indicated that the documents in front of him were prepared by him, and the entire inventory which they showed was purchased from Mr. Lazar by Union Oil Company and then sold by Union to Mr. Myers. As Mr. Myers was not able to pay cash for the inventory, financial arrangements were made at that time. Mr. Vola assumed that the downpayment made by Mr. Myers was about $1,000. 00. He also indicated that both Mr. Lazar and Mr. Myers were present at the time the inventory was taken, and were both agreeable to the way it had been conducted. Mr. Myers kept the station for four or five months, and then, as the station had been left unattended for some time, a mutual cancellation agreement had been signed, and Union Oil Company took possession of the station. Mr. Vola testified that he knew that the station had been broken into at least once under the operations of both Mr. Lazar and Mr. Myers. He also testified that he knew of a Siefle’s Sport Shop located about a mile from the station on MacArthur Boulevard and San Pablo.
During cross-examination by Attorney Robinson, Mr. Vola testified that there might have been certain things used in the operation of the station that could have been the basis for a promissory note from Mr. Myers to Mr. Lazar.
A redirect examination of Mr. Vola was conducted by Attorney Pestarino and Attorney Robinson then conducted a recross-examination.
Jack Nidever, a licensed clinical psychologist, then took the witness stand. He gave his address as 160 Saratoga, Suite 38, Santa Clara, and his qualifications were established. He had seen the defendant, David Malek Ismail, at the request of Attorney Pestarino, and had spent about 7 or 8 hours with him, talking and administering various tests. An interpreter had been present during some of the sessions. Dr. Nidever had received some background information on the defendant from Dr. Rappaport and Mr. Hernandez, the investigator. Dr. Nidever explained the tests he administered, and a cross-examination was then conducted by Attorney Robinson. During the cross-examination a letter from Dr. Nidever to Judge Duvaras was marked People’s Exhibit No. 33, and the Wexler Adult Intelligence Test was marked People’s Exhibit No. 34. Dr. . Nidever’s conclusion was: "Testing shows an organic impairment, a brain disfunction that would make him more likely to lose emotional control than a normal person. This would probably make him more vulnerable to intoxicants as well… His emotional intensity … when out of control, could lead to violence or death … " Certain documents were marked Defense Exhibits I, J, and K.
The next witness called was Archdeacon Ninos Michael, 1623 45th Avenue, San Francisco. He had at one time been the Patriarch’s secretary, and in August, 1973, he had accompanied the Patriarch on a trip to Seattle, and they picked up the Patriarch’s wife at the airport. That was the first time Reverend Michael learned of the Patriarch’s intention to marry. He testified that while he was staying in a motel in Seattle and making a phone call to his wife, the Patriarch had come into his room and started yelling at him for telling Mrs. Michael about the marriage, and then insulted him. However, after Reverend Michael had assured the Patriarch that he had not told his wife of the marriage, the Patriarch calmed down. He also testified that on another occasion the Patriarch had become very angry with him, and shouted at him for talking about a private conversation, and that the Patriarch was also angry with him for giving his wife the telephone number of the motel. Reverend Michael said that he had performed the patriarch’s marriage ceremony because he was ordered to do so by the Patriarch and had to obey him, but that he did not do it willingly.
During cross-examination by Attorney Robinson, Reverend Michael stated that he had been in San Francisco and had known the Patriarch since 1972. Before that time he had been in Chicago, and he testified that he didn’t know Sargis Michael, and that he was not related to him. Reverend Michael testified that he knew the Patriarch’s cousin, Eshaia, and that Eshaia didn’t like the idea of the Patriarch’s marriage. Reverend Michael also testified that he was not familiar with the Assyrian Universal Alliance. He then went on to say that the Patriarch had never used any physical violence in his presence.
At the time of the Patriarch’s marriage in Seattle, another priest, Michael Birnie, was present, and had acted as the best man. Rev. Michael testified that he felt so terrible about the Patriarch’s marriage, " … to the point I was going to resign. " After the Patriarch had published his epistle, Rev. Michael said, some of the bishops were in agreement with the Patriarch, and some were against him. When Rev. Michael was asked by Attorney Robinson what names the Patriarch had called him, he testified that the Patriarch had spoken in Assyrian, and the words were "donkey" and "bull". Attorney Pestarino then conducted a redirect examination of Rev. Michael, and a recross-examination was conducted by Attorney Robinson. Rev. Michael said that he had never corresponded with the defendant, and that he had seen Mr. Ismail at breakfast in the basement of the church in San Francisco talking with Eshaia’s mother. Rev. Michael had seen Mr. Ismail before in Chicago, and assumed that he was visiting in San Francisco. The extent of their conversation had been an exchange of formal "helloes".
Dr. Walter Rappaport, a licensed medical doctor in the state of California, specializing in psychiatry, was the next witness called. He gave his office address as 460 34th Street, Oakland, and his qualifications, and stated that he had seen the defendant twice, January 22 and 23, 1976, at the San Jose County Jail. Before seeing the defendant Dr. Rappaport had been briefed by Attorney Pestarino. He had spent 3-1/2 to 4 hours with Mr. Ismail. Attorney Robinson cross-examined the witness. Tapes of Dr. Rappaport’s report to Attorney Pestarino, marked People’s Exhibits Nos. 35, 36, and 37, were played. Dr. Rappaport’s conclusions appeared to be in accord with those of Dr. Jack Nidever.
The Next witness called was Reverend Aprim E. DeBaz, of 4817 West Kirk Street, Skokie, Illinois. He had been a priest in the Church of the East for about 18 years, and had first come to the United States in 1961. He had met the Patriarch at that time. He also knew General Ismail, the defendant’s father, and the defendant, and has seen both of them in the Patriarch’s presence. Reverend DeBaz testified that twice he had seen the Patriarch lose his temper, and that on one occasion the Patriarch had slapped at him with an envelope and called him a jackass in Assyrian, and that on the second occasion the Patriarch had become angry with another priest and had insulted him. Rev. DeBaz also testified that he knew that General Ismail had always supported the Patriarch.
Under cross-examination by Attorney Robinson, Rev. DeBaz testified that the Patriarch had transferred him from Chicago to Flint, Michigan, in 1970. He stated that he had not been transferred because he embezzled money from the church. He also stated that he knew Dennis Lazar, an attorney in Michigan, and was friendly with the Lazar family. Rev. DeBaz also testified that he had never made a statement to the effect that he would get even with the Patriarch for transferring him from Chicago. Rev. DeBaz stated that he arrived at the San Francisco airport via United Airlines on the evening of March 28. He was alone and had been met by Kitty Benjamin, and when he and Kitty got to the car, Zaia Ismail was waiting for them. Rev. DeBaz admitted to having sent a telegram in early February, 1975, which spoke against the Patriarch. He then admitted to knowing Sam Andrews, and that Sam Andrews and Zaia Ismail were friends. Rev. DeBaz said that he had seen David Ismail and Bishop Khamis in July, 1975, and that it had been in church, not in the Sheraton Motor Inn in Flint, Michigan. He also said that he knew David Ismail often carried a gun, and that he had known Mr. Ismail since he was a child of 7 in Syria. Rev. DeBaz had seen Mr. Ismail also on October 30, 1975, in Chicago, and had invited him and his uncle and cousin to his home for tea after church. Politics and church business had not been discussed, nor had the Patriarch. Rev. DeBaz stated that he was familiar with the A. U. A. , and " … the A. U. A. is working for the welfare of the Assyrian community – Assyrian nation all over the world – to keep the culture, language, and customs of the Assyrians. And they have been very helpful to our people all over: from Russia to Egypt to Syria to the United States. " Rev. DeBaz also stated that he and Zaia Ismail were close friends, but that he knew nothing of Zaia’s political beliefs.
Rev. DeBaz said that he did not know Yule Lazar, but that he had heard of him from reading the Assyrian Star.
Rev. DeBaz testified that on February 8, 1975, he sent a letter to Mar Yosip against His Holiness, Mar Eshai Shimun XXIII, and "… I sent copy which I addressed it to Patriarch. I sent copy of it to all bishops, archbishops, and priests of our church … That letter was signed by me … and signed by ten deacons. " The mailgram against the Patriarch included the name of the defendant, as Rev. DeBaz said he had authorization from Zaia Ismail to put the family names there.
Rev. DeBaz was then questioned about the time the Patriarch had become upset with him in Chicago because of money, and he stated that the Patriarch checked the church records of income and expenditures as a function of his office, but that on this certain occasion the Patriarch had expected some embezzlement, and a very detailed audit had been made, and approximately $75,000. 00 additional had been found. Rev. DeBaz then stated that he felt the Patriarch had always managed to live in a place that was too lavish for a clergyman, and that he had always seemed to be too interested in raising money, and that the parishioners were distrustful of him. Rev. DeBaz stated again that he believed judgement was left to God. He then stated that he had not attended the Patriarch’s funeral.
Esha Younan, also called Paul Younan, was the next witness called. He gave his address as 2617 West Berwyn, and said he worked in a place where clocks were made. Mr. Younan is Assyrian by birth. He was born in Tel-Tamer, Syria, and his mother and the defendant are first cousins. He stated that he has known David Ismail all his life. Mr. Younan moved to Canada in 1967, and at that time lived with Mr. Ismail for about 2 to 2-1/2 years. He stated that he had often seen Mr. Ismail with a gun. Mr. Younan said that he had heard that Mr. Ismail had been injured in some way when he was a child, but he did not remember the incident. He also said that during the time he had lived with Mr. Ismail, he had complained of severe headaches and pains in his ear. Mr. Younan said that on occasion Mr. Ismail would drink, and his behavior would be extreme, and that Mr. Ismail would deny remembering the things he had done.
Attorney Robinson cross-examined the witness. Mr. Younan said that he had known David Ismail’s father well, and that the Ismail family had lived in a quiet Syrian village where David’s father had a farm. Mr. Younan also stated that David Ismail’s drinking seemed to be heavier after the Patriarch had married, but that he had never discussed religion with Mr. Ismail, nor had he discussed politics with him. He also stated that he had seen David Ismail with a gun in his possession several times, but that he did not carry the gun loaded. He carried the cartridges in another pocket. Mr. Younan testified that he did not know Mr. Ismail had planned to come to California. Attorney Pestarino then conducted a redirect examination of the witness, who stated that on one occasion he had seen David Ismail crying, and when he had asked why David Ismail had told him, "Well, can’t you see what is happening to us? What is happening to the Assyrians? The Patriarch is getting married. It is … you know … something unbelievable. " Mr. Younan had been very surprised at the time and had said, "Well, what can we do about it? It’s too late. Something happen, it’s done. " Mr. Younan was then briefly recross-examined by Attorney Robinson.
Attorney Pestarino then called Zaia M. Ismail to the witness stand. He stated that he is the brother of David Ismail, and gave his address as 1627 Huron Street, London, Ontario, Canada. He also stated that he had seen a doctor that morning and that he wasn’t feeling too well. He felt he might need an interpreter because his English was not very good, and he might not understand the questions he would be asked.
Attorney Pestarino and Robinson then agreed that Rev. Aprim E. DeBaz was qualified to act as interpreter, and he was sworn in and instructed by the court.
Zaia Ismail was born in Iraq, and lived there until he was two years old. He remembered that he, his mother, and David had taken a trip to visit his father in the army camp, and that during that visit David had an accident while he was playing and suffered head injuries. David was in a British army hospital for treatment. Zaia did not remember for how long. David had been doing well in school up until that time. After the injury he couldn’t seem to learn anything, and David’s father had told the family to keep him calm and happy, and that maybe he would get better.
In 1968 Zaia Ismail went to Canada, and he and his family stayed with David until he found a job and rented an apartment. David and his father were very close, and Zaia said that, next to his father, David was the most religious member of the family, and that he taught his child to speak Assyrian and to read and write it. Their father had owned very valuable land in Syria, and had left 1/3 to Zaia and 2/3 to David. Zaia Ismail has been a member of the A. U. A. since 1969, and stated that it is not a revolutionary organization. He does not know a person in Australia named Kanna, but he has a niece living there named Wardia, and a nephew. They have never visited Canada, nor are they
members of the A. U. A. Zaia Ismail stated that the A. U. A. had nothing against the Patriarch. Attorney Robinson then began his cross-examination.
Zaia Ismail had not returned to Syria since 1968, even though he has property there. He has given power of attorney to his cousin, who takes care of the land for him, but at any time he can go back and claim the land. He has never told his cousin to sell the land, but he had heard that his brother, David, told the cousin to sell his share at any time. Zaia again stated that it is his brother’s habit to carry a gun with him. Zaia Ismail said that he knew Sargis Michael, and that Mr. Michael is not a member of the A. U. A. He does not know Mr. Kanna personally, but he knows he is a member of the A. U. A. He met Yule Lazar when he came to California to visit David in Jail. This meeting took place at the PSA Hotel. Until that time, Zaia Ismail did not know Yule Lazar was a member of the A. U. A.
Zaia told the court that the last time he had seen his brother, David, in Canada was approximately October, 1975. Zaia knew nothing of David’s proposed trip to San Francisco. David had invited Zaia and his family and their brother, Jack, to his house for a drink. While they were drinking David started talking about the Patriarch’s marriage, and Zaia had told him to forget it and be happy. David had told Zaia and his family to leave, and that he never wanted to see them in his house again, and he tried to attach Zaia’s wife. David was drunk at the time, and when Zaia confronted him with the incident the next day, David said he had no memory of it. After that Zaia and his family didn’t see too much of David.
Zaia Ismail stated that he was never charged with a being a spy for the government of Iraq. However, on February 16, 1975, in Flint, Michigan, the council members of the A. U. A. informed Zaia Ismail and Sam Andrews that they were accused of taking money from the Iraqi government for their expenses during their stay in Baghdad. At the time, they and Zaia’s father, the late Malek Yacoub, had been guests of the Iraqi government.
Joe Lazar was then called as a witness. He stated that he lives at 1137 17th Avenue, San Francisco, and has a service station at 377 6th Street, San Francisco, which is close to the Franciscan Hotel. His station services many government cars with emblems "G. S. A. , Official Use Only" on them. On October 31st he used one of these government cars to drive to the Sunset Motel to pick up David Ismail and bring him to the PSA Hotel. He was road-testing the car at the time, and he and the person accompanying him were dressed in their work clothes. He arrived at the Sunset Motel between 7:00 and 8:00 p. m. Neither he nor the other man went into Mr. Ismail’s room, as they saw him making a phone call in the lobby, and he came out to meet them. Joe Lazar took Mr. Ismail to the PSA Hotel, and he did not see him again that night. Joe Lazar had the service records for the car with him, and they were marked Defendant’s Exhibit L. Attorney Robinson had no questions for Joe Lazar.
Kitty Benjamin was then recalled by Attorney Pestarino. She confirmed her prior testimony that she had registered Mr. Ismail at the Sunset Motel under the name "David Benjamin", and that she had paid for the motel room. She presented the cancelled check, and it was marked Defendant’s Exhibit M. The date of the check was November 1, 1975. Ms. Benjamin said that she had picked Mr. Ismail up from the airport on Thursday, and that she had registered him before she had gone to the airport. She also said that she had made the check out on Saturday morning, and that Mr. Ismail had stayed at the Sunset Motel two nights. She stated that she didn't’ think she could recognize the motel clerk. Attorney Robinson had no questions for her.
Samuel J. Lazar was the next witness called. He gave his address as 346 62nd Street, Oakland, and testified that he had had lunch with David Ismail either the Monday or Tuesday he was in San Francisco.
Attorney Robinson conducted a cross-examination of the witness, who testified that David Ismail had phoned him to say that he was in San Francisco, and they had met for lunch at the PSA Hotel. They had discussed the import-export business, and Mr. Ismail told Mr. Lazar that he was interested in relocating to San Francisco.
Attorney Pestarino then called Sam Andrews to the stand. Mr. Andrews said he lived at 1442 West Birchwood, Chicago, Illinois, and was president of Avis Anodyziang, 522 Northwestern Avenue, Chicago. He stated that he is not a member of the Church of the East, but that he is a firm believer in that church. Mr. Andrews testified that he has known David Ismail since 1969. He also knew David’s father, Malek Ismail, and had acted as an advisor to him and accompanied him whenever he traveled abroad. Sam Andrews had seen the Patriarch on three occasions. The first time was in Chicago in 1968, when the Patriarch met with the president and vice-president of the Assyrian-American Federation. The president of the Federation at that time, Mr. William G. Younan, was also president-secretary of the A. U. A. The meeting was about the churches in Iraq being confiscated, and a new Patriarch being installed in that country by the government.
The second time had been in New York later in 1968. Mr. Andrews testified that the Patriarch had written a letter to be signed by the president of the Assyrian-American Federation and sent to the representatives of the Moslem governments in the U. S. , inviting them to a meeting to discuss the incidents in Iraq. The president had felt the letter was too strong, and refused to sign it, but the Patriarch had insisted it be sent the way it was, and had started screaming at them, and had thrown them out of his hotel room. The Reverend DeBaz and another priest had been present on this occasion. None of the Moslem representatives had attended the meeting, and Mr. Andrews stated, "Then … we met with representatives of the United Nations, the governments of Lebanon, Syria, and Iran. And the result of it was that there wasn’t anything they could do in the situation. "
The third time he had seen the Patriarch, Mr. Andrews had been in the audience of a meeting in Chicago between the Patriarch and the local parish priests of the Church of the East, and priests from the other denominations in the Assyrian community.
The examination continued, and Mr. Andrews testified that he had often seen David Ismail carrying a gun, usually in the inside coat pocket, and that on several occasions he had warned David about carrying guns when he traveled from country to country. "But it was like a package of cigarettes. He always had them. " Mr. Andrews also said that Malek Ismail had been a deeply religious man, and that he assumed David to be religious also, because at one time, when someone had criticized the Patriarch, David "almost went into a rage, and broke up the party. He wanted to throw the man out of the second floor window. " Sam Andrews testified that he had never heard David’s father speak against the Patriarch after the marriage, and that the subject had not been discussed between David and himself.
Mr. Andrews then told the court that he is a member of the A. U. A. , and had joined when it was organized in 1968. He had been an executive member for three years, and for the last two years has been chairman of the advisory board. He presented a sealed copy of the by-laws of the A. U. A. to the court, which was marked Defendant’s Exhibit O, and an accompanying letter was marked Defendant’s Exhibit N. Sam Andrews stated that the Patriarch had always preached that the people of the Church of the East should live in peace with whatever government they were living under. According to Mr. Andrews, the A. U. A. is a non-violent, peaceful organization promoting the language and culture of the Assyrian people all over the world, and is devoted to helping under-privileged Assyrian people. The A. U. A. has "an aim that the Assyrian, like any other nationality under the constitution and charter of the United Nations, should have an area to live in and an autonomous state … under the jurisdiction of the central government of that country … Several letters dealing with the World Council of Churches, the United Nations, and the State Department were then presented to the court and marked Defendant’s Exhibit P. Mr. Robinson then conducted a cross-examination of Mr. Andrews.
During the cross-examination the witness again testified that the A. U. A. is a peaceful organization devoted to helping Assyrians all over the world. He also testified that in October, 1975, in Switzerland, the A. U. A. passed a resolution stating that it was a non-violet organization, and if there were radicals in the group they were eliminated at that time. Mr. Andrews also stated that he and Zaia Ismail had been accused of certain dealings with the Iraqi government, and in March, 1975, he had requested a hearing before the officers and executive committees of the federation and the A. U. A. His name and that of Zaia Ismail were cleared. Mr. Andrews then told Attorney Robinson that he and Mr. Younan had flown to San Francisco together.
Mr. Frederick Samuel Kelaita was then recalled by Attorney Robinson, and testified that a meeting of the Patriarch and various bishops of the church had been scheduled for November 19, 1975, in Seattle, and had been postponed to January, 1976, as some of the bishops could not attend in November. The meeting was to settle the problems of the church. After his resignation, the Patriarch had received a petition of all the bishops of the church requesting him to resume the duties and administration of the Church of the East. Bishop DeBaz of Lebanon, brother of Father DeBaz, was one of the bishops who signed the letter. The letter was then marked People’s Exhibit No. 39. Mr. Kelaita confirmed his prior testimony that the Patriarch did not see anyone without an appointment, and whenever the Patriarch received someone who wasn’t a member of the clergy, he had another person there to witness the meeting. Mr. Kelaita testified that when the Patriarch received members of the clergy he would normally wear a black suit; but when he received callers on official business, he wore a long robe. When the Patriarch was with his family he would wear just casual clothes. Photographs of the Patriarch were marked People’s Exhibits Nos. 40, 41, 42, 43, 44, and 45.
Then, based on a book written in Assyrian by Malek Yacoub, and also on the common knowledge, generally, of the Assyrian people, Mr. Kelaita gave a brief history of the Assyrian people from 1918 to 1945. Mr. Kelaita stated that the Patriarch had not supported the A. U. A. because the A. U. A. did not have support from the Assyrian people in the Middle East.
Questioning continued, and Mr. Kelaita testified that he was familiar with Father DeBaz, and that the Patriarch had brought Father DeBaz to Chicago in the early ‘60s. Around 1970 the Patriarch transferred Father DeBaz to Flint, Michigan. The Patriarch had mentioned to Mr. Kelaita that he felt Father DeBaz was not an honest man, and that he had transferred Father DeBaz to Michigan instead of firing him because he hoped "that he would straighten himself up. " A member of the church had donated $1,000. 00 to the Church of the East Foundation, and had given the money to Rev. DeBaz. After some months he still had not received an acknowledgment or receipt, and he called the Patriarch to inquire about it. The Patriarch brought this matter to the attention of Rev. DeBaz, who said that he had forgotten about the check. Rev. DeBaz then paid the money to the church. Later, in Chicago, the Patriarch had seen Rev. DeBaz and told him that he was forgiven. When the Patriarch’s father died in November, 1974, Mr. Kelaita had telephoned Rev. DeBaz in Michigan to inform him of the death, and to ask him to tell some others. Rev. DeBaz insisted on coming to San Francisco to assist with the funeral. Mr. Kelaita met him at the airport. After the funeral, the family members had talked among themselves, and took up a collection to pay for Father DeBaz’ plane fare … round trip. Rev. DeBaz at first refused the money, but then took it. Some time later, Mr. Kelaita was contacted by the parish in Flint, Michigan, as Rev. DeBaz had asked the parish to reimburse him for the trip to the funeral. Mr. Kelaita told the parish that the plane fare had already been paid for, and not to pay Father DeBaz.
In June, 1975, Rev. DeBaz left Flint, Michigan, for Chicago, and wrote a letter to the Patriarch, sending copies to the members of the Assyrian communities. The letter was marked People’s Exhibit No. 46. Mr. Kelaita translated the letter: "Mr. Eshai David, who is calling himself Catholicos Patriarch of the Church of the East: We have no desire to answer to your letters full of threatening and self-glorification, for you know well that you have torn the veil of human decency, and from the beginning of your life until your resignation and marriage you have been hard-hearted and an arrogant person, and have betrayed this holy church and nation. It is impossible that you will stop and confess to the truth. The surprising thing is that you are still hopeful to re-establish your hitlerite empire and regain the affection of the people and reinstate their former respect. No. Eshai, you better stop thinking about this, and instead it would be better for you to keep quiet, because you are increasing the anger of the people by your letters, which are meaningless and of no value. We shall have no part in your goodness or evildoings. Whatever you have stated, or shall state, would be for yourself and those who listen to you and praise you. For you yourself have brought shame on yourself. We agree with your letter of August 15, 1975, whereupon announcing the happy news of your marriage you are stating that you would never have taken this step as long as you were doing the duties of a Patriarch, and as long as the question of the bishops was not settled by the synod. For the sake of peace and harmony in the church, it should be expected that church hierarchs should not be married until such a time that the synod has changed the canon laws. All of us, sons and daughters of the Church of the East, agree with the position taken at the synod of the bishops on September 15th, 1973, in the city of Beirut, Lebanon, that on that date you were defrocked from all church ranks and made a layman. So better understand, you old traitor, that you have no share in God’s church, and no part with the sons of Attur. All of us of the Church of the East are thankful to the bishops for sending their representative, Bishop Mar Aprim Khamis, to this country as their official bishop. We all accept him, and so we pray for his success, and will go through any sacrifice if needed. In conclusion, we all pray for you as we have been taught by our Lord. Furthermore, we pray that God will grant you understanding, and stop you from doing things which are contrary to the teachings of our church. If not, you are disassociating yourself altogether from the church and its teaching … Signed June 22, 1975, Chicago, Illinois, the servant of the Holy Church and Assyrian Nation, Reverend Aprim DeBaz, Pastor of Mar Sargis Parish in Chicago, copy to all church bishops in the East and West. " (Also contains signatures of ten deacons).
This letter had been written long after the bishops had changed their position and had indicated that they wanted the Patriarch back.
Attorney Pestarino then conducted his cross-examination of Mr. Kelaita. Mr. Kelaita stated that he knew Rev. Ninos Michael quite well, and that for a while Rev. Michael had been the Patriarch’s secretary. He had also performed the Patriarch’s marriage ceremony. Mr. Kelaita testified that Rev. Ninos told him that he felt honored to perform the marriage. Rev. Michael had been with the Patriarch when he picked Emama up at the airport in Seattle. The Patriarch had ordered Rev. Michael not to tell anyone of the marriage. He wanted to do it himself in his own way. The Patriarch had overheard Rev. Michael making a phone call at the motel, and had gone into the room to reprimand him. Mr. Kelaita stated that he did not know the extend of the reprimand, but that Rev. Michael told him that the Patriarch had been very angry.
When questioned further, Mr. Kelaita testified that the Patriarch did not attend his father’s funeral, but had planned to see the body at the funeral parlor. However, the Patriarch was not feeling well and couldn’t go. The Patriarch’s mother did not tell him to stay away from the funeral.
Concerning Rev. DeBaz, Mr. Kelaita testified that the Patriarch had heard that he was not conducting his personal life in a manner appropriate for a priest, and had hoped that the transfer to Michigan would get Rev. DeBaz away from the Chicago environment. He had also phoned Rev. DeBaz several times and found him out. Mr. Kelaita said he knew nothing of an incident between Father DeBaz and the Patriarch over a blank check, and that although the Patriarch may have reprimanded a priest, he would certainly not slap him or call him insulting names.
Regarding the A. U. A. , Mr. Kelaita stated that the feelings he had expressed were his own and the feelings of the Patriarch. Mr. Kelaita then responded to Attorney Pestarino’s questioning that after his marriage the Patriarch had received Bishop Mar Dinkha, Bishop Mar Claudio, Father Birnie of Seattle, and several other priests. The Patriarch had resigned his office at the beginning of 1973, and after talking with the bishops, agreed to stay on for six months so that another Patriarch could be elected. However, the bishops were confused, and immediately after the Patriarch’s marriage they gathered in Lebanon and decided to reinstate the Patriarch. So they wrote a letter asking him to come back, and sent it to the Patriarch with their representative. This question was to have been settle in Seattle in January, 1976.
Sam Andrews was called by Mr. Robinson for cross-examination. After much discussion, Mr. Andrews acknowledged that he was familiar with a newspaper called the Assyrian Quest, and that it was distributed throughout the Assyrian community. He stated that he did recall an article called "The A. U. A. Cover-up, Scandal, What Happened in Flint, Michigan", and that the article was twisted and biased and completely untrue, and that the newspaper was probably an underground newspaper and completely unreliable. He stated that the minutes and facts of the hearing concerning the charges against Zaia Ismail and himself had been published in the Assyrian Star. He also stated that he knew Mr. Malek, and that at one time Mr. Malek had been a member of the A. U. A. , and that the quotes in the newspaper concerning Philip Malek’s comments on the A. U. A. and its activities were hearsay. He denied taking any money from the Iraqi government except for expenses, and stated that he had not given any information about Malik Chikko, chairman of the high committee of Christian affairs of Kurdistan, to the Iraqi representative to the United Nations in New York.
Attorney Robinson read the newspaper article to the court: "What happened in Flint, Michigan. The A. U. A. cover-up. Scandal. The panel was unqualified. The American democracy was rescued by the two reporters of the Washington Post who uncovered Watergate, the worst history of American scandal. What happened in Flint, Michigan. The A. U. A. mission to Baghdad was charged with working in the interest of the Iraqi government. Messrs. Sam Andrews and Zaia Malek Ismail, members of that mission, were accused of receiving illegal money from the Baghdad regime. The accusations were made by Odishoo Gendo in an open hearing in Flint, Michigan. These accusations were made against them by their own colleagues who worked with them closely in Baghdad. And because the hearing was open, in the spirit of free journalism, the Quest published a brief news report about the events in its March, 1975, issue. However, Mr. William Younan, secretary-general of the A. U. A. , sent us a letter full of contempt and unfounded accusations, which was published in the March-April issue of the Assyrian Star. This letter has prompted us to investigate the Assyrian Watergate scandal and publish the highlights of what transpired in Flint, Michigan. Since the A. U. A. officials showed more concern about the published news, and attacked the Quest for reporting the news of a public event rather than the actual charges, the staff of the Quest suspects that some of the officials of the A. U. A. might have something to hide. And it is possible that some kind of cover-up was involved.
"Accusations and Response. The following were the major charges levied against Mr. Sam Andrews and Mr. Zaia Ismail: 1. In a meeting with Iraqi agents in Paris, France, on February 20th, 1973, Sam Andrews and Zaia Ismail received $4,000 cash. The accused replied that this money was used to cover their expenses. 2. Mr. Odishoo Gendo accused Sam Andrews and Zaia Ismail of receiving 10,000 Iraqi Dinars, ($30,000) in cash, on April the 1st 1973, plus a monthly salary from the Iraqi regime in Baghdad, the purpose of which was to promote pro-Iraqi propaganda in the United States through Assyrian media. The accused responded that they received only 6,000 Iraqi Dinars ($18,000). Ten thousand went to Zaia, and 7,500 went to Sam, and they denied receiving any monthly salary. At this time Mr. Odishoo Gendo presented a letter written by Zaia Ismail dated November the 2nd, 1973, in which Zaia requested that the Iraqi government forward his monthly salary, which amounted to more than $3,000, to the Iraqi embassy in Ottawa, Canada, and further stated that Sam Andrews was also in the same predicament. At this time Zaia admitted receiving a salary for three months which amounted to $9,000, which was forwarded to the Iraqi embassy in Ottawa, Canada, on or about November 27th, 1973. "3. When Malik Chikko, chairman of the high committee of Christian affairs of Kurdistan, northern Iraq, visited the United States. Sam and Zaia compiled information and collected data about him and handed it to the Iraqi United Nations representative in New York. The accused admitted collecting data and delivering it to the Iraqi agents in the United Nations. 4. Sam Andrews and Zaia Ismail proposed to the Iraqi government the creation of, or the formation of, an Assyrian commando unit consisting of the Assyrian refugees who were fleeing the war in northern Iraq. The purpose of this unit was to assist the Iraqi military against the Kurds. The accused responded that the proposal was made, but that it was conditional, the condition being that the Assyrian unit would later be used to protect the Assyrian autonomous state. 5. Another charge was that the accused delivered the constitution and by laws of an Assyrian underground organization to an Iraqi official in Baghdad. 6. Another charge was that Zaia Ismail had a contract with the Iraqi government to export paper from Canada, which was to be used by the Ba’ath newspaper (Al-Theura). The accused requested a closed session to give a more complete response to the charges. The meeting was then closed, and only a few A. U. A. officials were present. At this time Mr. Gendo was not allowed to be present at this hearing, and therefore was not able to challenge any replies made.
"The panel was unqualified. The Quest has learned that the panel that was formed to investigate the charges against Mr. Ismail and Mr. Andrews was totally unqualified for its investigative purpose for the following reasons: One, Mr. Sam Andrews is the chairman of the board of directors of the A. U. A. , and according to the A. U. A. constitution, Article IV, Section VI, the committee he chairs has the power to accept, reject, and refer back any proposal presented by the executive board. A panel formed by such an executive board could very well be a biased one. The only was to have a qualified panel with a meaningful trial was to first have Mr. Sam Andrews resign from his office and be replaced by a qualified individual, followed by a free panel. Interestingly enough, many of the members of the selected panel in Flint were known as old friends and associates of Mr. Andrews. Mr. William Younan, the A. U. A. secretary-general, an old friend of Mr. Andrews who conducted the panel at said hearing, was later challenged by Mr. Philip Malek, the A. U. A. treasurer, as unqualified and biased. This resulted in the removal of Mr. Younan from the chairmanship of the panel. Mr. Mike Rashu, editor of the Assyrian Star, was another member of the panel. He had been known as an old friend of Mr. Andrews, and accompanied him to Baghdad in March, ’73, and became a member of the 11-man committee formed to deal with the Iraqi government. The members of this committee had to be approved in advance by the Iraqi government. At the hearing it was mentioned that some of the monies paid by the Iraqi government were to influence the Assyrian Star. Because of this Mike Rashu was considered as an accused. Many times during the Flint hearing he announced that he considered himself as an accused, and requested the right to defend himself and others. He was recognized and allowed to do so. Mr. Mike Rashu, in his editorial of March-April, 1975, issue of the Assyrian Star, has blasted the Syrian and Iranian governments, and with a suspicious coincidence, we notice that the government of Iraq has a similar strategy towards Iran and Syria, namely it has a long history of hostility with the Iranian government, and recently has been on bad terms with the Syrian government. Are these strategies related? Is it possible Mike Rashu is really influenced by the Iraqi monies? For these reasons and many others which lend themselves toward the smell of a cover-up, we feel that the present panel and its decision are not acceptable to the Assyrian people. We also feel that in order for the A. U. A. to regain and keep any integrity, it must choose an independent panel, or place the entire matter in front of the entire A. U. A. congress. We request the minutes of the open hearing, and the closed session of the Flint hearing, be made public. The Assyrian people have a right to know. "
The newspaper was then marked People’s Exhibit No. 47, and Attorney Robinson called Mr. Andrews’ attention to another article in the newspaper, "Mar Eshai Shimun is Back". Mr. Andrews stated that he had seen the article, but never read it, as he had no interest in it or the Patriarch: " … the Patriarch is head of one sect of our church. The A. U. A. works within all of the communities of the Assyrian people. We do not have to go to the Patriarch to get his ideas … his views. We respect them, but we never went to him. " The witness then testified that he had known Father DeBaz for eight years and was friendly with him. Redirect examination of Mr. Andrews was then conducted by Attorney Pestarino.
Attorney Robinson then called the next witness, Joseph Shimoun Kallu. Mr. Kallu is Assyrian, born in Iraq, and attends the University of Waterloo, Waterloo, Canada. He had come to Canada in December, 1967, and is now a Canadian citizen. He knew David Ismail, and the Ismail family, and visited with them often, sometimes at his own family’s house, and sometimes at the Ismail residence. During his first visit with David Ismail in 1968, Mr. Kallu and David discussed politics. David had started the discussion, and the witness testified: " … he started telling me some about the political situation in Syria, and he asked me a few things about the political situation in Iraq. He told me that he wasn’t very happy for what was going on there (in Syrian), and as a matter of fact, he had a conflict with one of the government officials whereby he had to beat him and was, as a result, jailed for that matter. " Mr. Kallu did not know how long Mr. Ismail was in Jail as he wasn’t really interested. Mr. Kallu testified that when he had visited Mr. Ismail’s home in Canada in 1970, David had shown him poems "composed to the effect that they would be longing to return back to the fatherland, and they were things in that line of Assyrians getting back to their countries. " Mr. Kallu further testified that after the Patriarch’s visit to Iraq in 1970 David Ismail "told me that him and his family were very much upset and annoyed about the fact that the Patriarch wouldn’t take their father and brother, Zaia, with him, and they considered this an absolutely irresponsible act on behalf of the Patriarch. " Mr. Kallu had attended the 50th anniversary of the Patriarch in Chicago, as did all of his family. There had been Assyrians from all over the U. S. and Canada there, but no member of the Ismail family were present. In 1973 Mr. Kallu had attended a meeting of the A. U. A. in Flint, Michigan, as he was ‘curious to see what type of people they were, and what their activities and functions were. " He had seen Mr. David Ismail at the meeting, and had spoken with him congratulating him for the good job his son had done in reciting a poem. The program for the meeting showed that Rev. DeBaz was going to speak, but Rev. DeBaz was not present. ""he announcer read a little note from DeBaz saying that he was apologizing for his domestic affairs being unable to attend the meeting. " After the meeting Mr. Kallu had asked David Ismail why Rev. DeBaz wasn’t present, and David had told him that Rev. DeBaz was a member of the A. U. A. , and ‘would do anything to support our organization. " When Mr. Kallu mentioned that he felt Rev. DeBaz owed some responsibility to the Patriarch as a clergyman, David had said: "… as far as he is concerned, and as far as our organization is concerned, he wouldn’t give a damn to the religion of the Patriarch … DeBaz … is an example. We want to see his brother in the office so that we could steer him the way we want through DeBaz … He is not the only clergy that we have got in with us, but we hope we can get as many as we can. Then the rest that don’t support us … I hope we will be able to get rid of them so that we can do the things our way and have more support. " Mr. Kallu understood this to mean that the A. U. A. wanted to see Father DeBaz’ brother in the office of Patriarch.
In late 1974 Mr. Kallu had attended a party given by the Assyrian community in Canada. Zaia Ismail was there, and David was also there with the American Ambassador from Iraq. Jack Ismail did not attend the party, which was intended to be a social gathering, but turned into a political rally, and ended in a fight when one of the speakers accused the Ismail family of being hypocritical, and of playing on both sides of the Iraqi government. Mr. Kallu did not see David or Zaia involved in the fight. There had been moderate drinking at the party. Mr. Kallu then testified that he had never known David Ismail to carry a gun, and that he himself had never carried a gun, either in Canada or during the 30 years he had lived in Iraq. Mr. Kallu then gave Attorney Robinson a photograph of the Patriarch, Mar Shimun, when he was 11 or 12 years old and had first become Patriarch. The photo was marked People’s Exhibit No. 48. Attorney Pestarino had no questions for the witness.
Emama Mar Eshai Shimun was then recalled by Attorney Robinson. She testified that she had never seen David Ismail with a gun. David had told her that he was jailed in Syria for beating a government official. Mrs. Shimun was then shown People’s Exhibit No. 44, and testified that the Patriarch had his hand on his ear so that he could hear the person opposite him. She was also shown people’s Exhibits Nos. 41, 42, 43 and 45, and testified that the Patriarch never received a member of the clergy without wearing his official church habit. When he received members of his family he wore his black suit and clerical collar. When he was at home or taking an outing he wore casual clothes. Mrs. Shimun testified that the shirt in People’s Exhibit No. 43 was the one the Patriarch was wearing when he was shot. Attorney Pestarino had no questions for Mrs. Shimun.
Attorney Robinson recalled Police Sgt. Aubrey Raymond Parrott, who was given People’s Exhibit No. 6, and he marked on it the areas where lights were on and where they were off. The lights which were on were the chandelier in the dining room, a light in the upstairs hallway, the recessed front exterior porch light, and the light on the exterior garage wall. Attorney Pestarino cross-examined the witness, and Attorney Robinson conducted a brief redirect examination. He established that the light shown in People Exhibit No. 10-F had been turned on by Sgt. Parrott when he arrived at the scene.
Police Constable Peter William Scrivens, of the London, Ontario, Canada, police force was the next witness. He stated that he has been on the force seven years and has worked in criminal intelligence approximately a year. He then described Canadian firearm restrictions and regulations, and the registration procedure. He had checked the records of the Ontario Provincial Police, and received a certified affidavit from the Royal Canadian Mounted Police, and there has never been a handgun registered to David Ismail in Canada. Constable Scrivens also testified that the Canadian customs laws are very strict, and it would be impossible for a person without a permit to bring a gun into Canada without smuggling it. On Februry 3, 1976, Constable Scrivens interviewed Zaia Ismail at his residence in London, Ontario. The interview had lasted approximately an hour. For the first ten minutes the interview had been conducted in English, and Constable Scrivens had taken the necessary particulars. There seemed to be no problems with the language. However, when Constable Scrivens began asking questions about David and the assassination, Zaia Ismail had called his oldest son, Sam and requested that he act as Interpreter, as Zaia did not fully understand or speak the English language.
Attorney Pestarino then began his cross-examination. Constable Scrivens testified that Zaia told him he frequently traveled to the Middle East to wind up deals for his Company. Attorney Pestarino then questioned Constable Scrivens concerning Canadian customs procedures and firearm rules and regulations.
Attorney Robinson conducted a redirect examination of Constable Scrivens, who testified that a Canadian gun permit authorizes a person to keep a gun in his home. It does not give permission to carry a gun in the street. Upon further questioning, Constable Scrivens testified that Zaia Ismail told him that he worked for Eagle International in Michigan, and upon checking out the company it could not be located. There had also been some difficulty in locating Zaia Ismail, as he had sold his house and allegedly moved in with a relative. However, the relative advised that Mr. Ismail was living at 1967 Huron Street, London, Ontario. Upon recross-examination by Attorney Pestarino, Constable Scrivens stated that thorough investigations of both Zaia and David Ismail had been conducted, and there were no criminal records in Canada on either of them.
Constable Robert Wilford Herilck, Detective Sergeant with the London City Police, London, Ontario, was called by Attorney Robinson. Constable herilck testified that on November 7, 1975, at approximately 3:20 a. m. , he was contacted by Sergeant Randall of the San Jose Police Department, indicating that there had been a homicide there, and requesting that Mrs. Ismail and her son be given protection in case repercussions. About 11:00 a. m. Constable herilck went to the Ismail residence. No one was home. He then went to the school the son attended and made arrangements for his safety. He returned to the Ismail residence about 12:40 and interviewed Mrs. Ismail. Mrs. Ismail told Constable Herilck that her husband had not owned any guns, and he talked to her briefly about the killing. Mrs. Peggy Ismail gave permission for the apartment to be searched, and a thorough search was conducted for papers or documents that may have connected the accused with the deceased. No guns were found, nor was any evidence indicating that a gun had been kept in the apartment at one time. Mrs. Ismail had given the keys to David Ismail’s car to Constable Herilck, and the car had been thoroughly searched. It was at this time that the Christmas card from Kitty Benjamin was found. Constable Herilck paid a second visit to the Ismail residence on November 12, 1975.
During cross-examination by Attorney Pestanino, Constable Herilck testified that he had questioned Mrs. Ismail about her husband’s background, and that during his search he had gone through all the papers and books he had found.
Attorney Robinson conducted a redirect examination of the witness, and Constable Herilck testified that Mrs. Ismail told him she didn’t have money for her rent. He told her how to contact the city welfare department. Mrs. Ismail had learned at 5:00 a. m. the morning of November 7 that her husband had been arrested. A uniformed police officer had informed her of the fact.
Attorney Pestarino recross-examined Constable Herilck, who testified that during his interview with Mrs. Ismail he learned that she had injured her hand and was unable to work, and that Mr. Ismail had been unemployed for about six months. Mrs. Ismail indicated to Constable Herilck that David had not been sick or ill during the time he was out of work and that she had noticed no change in his behavior. He was a good husband and father, and did not drink excessively, although at certain times he may have drunk more than he should --- but he was never drunk. She said that David had quit his job to buy a business, but the deal had not gone through. Regarding the Patriarch’s marriage, Mrs. Ismail told Constable herilck that David had seemed upset about it. A nephew from Chicago and her son were living with Mrs. Ismail when Constable Herlck interviewed her. Mrs. Ismail had seemed very upset about the whole thing, and said she couldn’t believe David had done a thing like that. After seeing Mrs. Ismail on November 12, Constable Herilck had spoken to her twice on the phone and had dropped in to see her, as he was concerned for the safety of the family. Attorney Robinson, in a redirect examination, asked Constable herilck if he had made a statement regarding Mrs. Ismail’s honesty in his police report. Constable Herilck testified that he was very impressed with Mrs. Ismail’s honesty.
The next witness called, Dennis Robert Lazar, Assistant Prosecuting Attorney in Genesee County, Flint, Michigan, gave his nationality as Assyrian, his religious affiliations with the Church of the East. And stated that he is a United States citizen and has lived in Flint, Michigan, all his life. He testified that in the middle of July, 1975, he had been in the Sheraton Motor Inn about midnight to have a drink with his date. He saw Mr. Aprim DeBaz and the defendant, whom he did not know at the time, enter the bar, and he believed they ordered drinks. In the early fall of 1975 Mr. Lazar had been appointed by the Patriarch to act as legal counsel for the Central Committee of the Church of the East. When questioned regarding Rev. DeBaz, Mr. Lazar testified that during their first meeting, Rev. DeBaz had spoken against the Patriarch, and felt that in some way he had been demoted. On one occasion a member of the church had come to Mr. Lazar and told him that Rev. DeBaz had visited them and told them that he would get even with the Patriarch. Rev. DeBaz had gone to California for the funeral of the Patriarch’s father, and upon his return he told the parish that he had been requested to attend by the Patriarch and his family, and asked for reimbursement of his expenses. It was later learned that he had already been compensated. Rev. DeBaz left the parish in Flint without a priest. He had received neither orders nor permission to go, and he gave various reasons for his departure.
Attorney Pestarino conducted a cross-examination of Mr. Dennis Lazar, who testified that the Flint parish is not large, and that Father DeBaz, who was married and had two small children, had to work at a job. However, he did live rent-free in a house the parish provided, and they did pay him a small salary. Mr. Lazar said he did not always agree with Father DeBaz for "talking out against the Patriarch… leaving for week-ends without telling anybody … performing marriage ceremonies for non-members … performing funeral services for non-members", but he had no ill feelings toward him. It seemed to Mr. Lazar that the underlying theme of every accusation Rev. DeBaz made against the Patriarch was that the Patriarch was money-hungry. Several documents were marked Defendant’s Exhibit Q. Attorney Robinson conducted a brief redirect examination of the witness wherein it was established that Mr. Lazar had been suspicious of Rev. DeBaz, and had told the church’s Central Committee, who contacted the FBI. Mr. Lazar had also contacted Sgt. Randall of the San Jose Police Department. A brief recross-examination of the witness was conducted by Attorney Pestarino.
Attorney Robinson called Father Michael James Birnie to the stand, who is a priest of the Church of the East, St. Thomas’ parish in Seattle, Washington. Father Birnie is not Assyrian. He is Irish. Since March 24, 1968, he has been the priest at St. Thomas’ parish. The church pays him a salary. At one time he also worked at secular employment, but he gave up that job to devote more time to the parish. He is married and has two children. On August 13, 1973, Father Birnie received a call from the Patriarch, instructing him to meet him at a certain motel in Seattle. Father Birnie testified that when he arrived, Rev. Ninos Michael and the Patriarch were there. Father Birnie learned later that the prospective bride of the Patriarch was in the same motel. The Patriarch told Father Birnie that he had decided to marry, and that Father Michael was going to perform the ceremony. He asked permission to have the wedding in St. Thomas’ parish. Father Birnie and the Patriarch discussed the marriage at great length, and Father Birnie had no objections to the marriage being held in his parish, since the Patriarch had retired from office. Father Birnie testified that during this time, Rev. Michael had "expressed some feeling of …. Anticipation for what this would mean for the future … for himself personally, for the church, how he could present it to his congregation … how it would be necessary to re-educate them, and this type of thing. " Rev. Birnie had been present at the marriage ceremony, which was performed in Assyrian. After the ceremony, the Patriarch and his bride, Rev. Michael, and Father Birnie and his wife had gone to dinner at the Space Needle in Seattle. The Patriarch had given letters to Father Birnie to be mailed later to the bishops of the church after the Patriarch had had time to inform the members of his family. Father Birnie and his wife then drove Rev. Michael to the airport. When asked about his relationship with the Patriarch, and the sort of person he was, Father Birnie testified: "His Holiness was, with me, a very understanding individual … He had great insight into human character and … could very quickly understand what might be troubling a person … He was very kind, very gentle, very firm … He had a way of looking at you and telling you what to do, or where you were wrong, and the point was well taken . I can say with absolute certainty that I have never known him to embarrass anyone else – clergy, layman, or anyone else – in my congregation – among my people …"
Father Birnie testified further that when the Patriarch came to Seattle with Rev. Michael, he brought a copy of the marriage ceremony in English with him, in case Rev. Michael didn’t want to perform the ceremony in Assyrian. Attorney Pestarino then conducted a cross-examination of the witness.
Reverend Aprim E. DeBaz was recalled by Attorney Pestarino. At this time a document was presented to the court and marked Defendant’s Exhibit R, and Rev. DeBaz confirmed the English translation of the document to be correct. When asked how it came about that he attended the funeral of the Patriarch’s father, Rev. DeBaz testified: "Fred Kelaita called me. I was in Flint, Michigan. And he gave me the sad news. He said, ‘Rab-Khaila’ – means ‘chief’ – "David d’Mar Shimun died. " I paid my tribute – my respect. I said, ‘May God comfort you. What can I do for you?’ He said, ‘Here is Sargon. ’ Sargon is the Chief David’s son, the ex-Patriarch’s brother. Sargon came to the phone and I paid my condolences to him on the phone. I said, ‘I share the sorrow with you. And what can I do to help?’ Because chief David was my mother’s first cousin. He said, ‘Well –‘. I said, ‘I will be there tomorrow. I will come tomorrow to the funeral. ’ … He said, ‘It will be very comfortable to us to be here. ’ Then Sargina, his sister, took the phone. And she said, ‘Cousin, you know how helpful it will be – your presence here. ’ I said, ‘Cousin, I will be there. ’ I called my supervisor … and called a few members of the church committee, told them that I was going to California because Chief David d’Mar Shimun had passed away … I came here, participated at the wake with Father Ninos Michael and with Father Bedel Piro … I waited until the third day after the burial, which we have another service in the cemetery, and upon my return and eulogy in the church basement, and before my departure from Turlock to San Francisco, Mr. Kelaita came to me with an envelope in his hand, and he said, ‘This envelope is from the family for your expenses. ’ I said, ‘Fred, I don’t need this. The man was my mother’s first cousin, and I paid my respect instead of my mother to this family. ’ He insisted. He said the family had insisted – to take it. And I took the envelope. And I opened it in the air while I was flying to Chicago – to Flint, Michigan. There was a check in it for $350 … Upon my arrival in Flint, I celebrate a Mass for the soul of Chief David. And we had a committee meeting. It was brought in the meeting by the committee to share the expenses of my trip to California. I told the committee I already have received an amount of money from the family, and this parish has nothing to do with this trip. And I told them to close in their minutes completely the case. "
When questioned about an embezzlement, Rev. DeBaz testified that in 1972 he had received a phone call from the Patriarch regarding a fund for clergymen for the Church of the East which had been started in 1964. He said that since Rev. DeBaz had been the priest in Chicago nothing had been donated to the fund. Rev. DeBaz told the Patriarch that this was not the case, and that he would collect his records, and he then sent the Patriarch the fund, which contained $17,875. He testified that he had never personally collected any money. The church committee takes care of the business of the church, and the priest takes care of the sacraments of the church. Rev. DeBaz stated that when he performed baptisms, marriages, or funerals, people sometimes gave him gifts of money which the church allowed him to keep. He did not charge a fee. He stated that while he was in Flint, Michigan, he was making nearly $1,200 a month, as he received a salary from his job at General Motors and a salary from the church. The salary from the church was $400 a month, and he received his eight-room house rent-free. However, he had to pay the utilities for the house, and he had to furnish it himself. Attorney Pestarino asked Father DeBaz whether the Patriarch had attended the funeral of David d’Mar Shimun, and after some confusion, Father DeBaz said, "No. " Attorney Pestarino then asked Father DeBaz if he left his parish for domestic reasons, and Father DeBaz said, "The only time I left my parish, it was because I had a temporary parish in Canada – in London, Ontario, and Toronto, Canada. " He said that he had always notified a deacon to take his place, and that the parish was never unattended. Rev. DeBaz also testified that he worked at night during the time he lived in Flint, and that he had explained this to the Patriarch. While he was in Chicago he had always been at home when the Patriarch had telephone. And Rev. DeBaz confirmed his prior testimony that he had never been in a bar drinking, and that he had never made remarks about getting even with the Patriarch: " … Only thing I have said – that God is truth, and He will punish whoever that goes against His will. Many people were disturbed. Not many – all Assyrian people – all – whole Church of the East. Now the Church of the East is very split – to six or seven different kinds of parts – because of this marriage, because changing of the calendar, and because of this wrath that was brought down upon this holy church. But we accept it. "
Attorney Robinson then cross-examined Rev. DeBaz, who stated that he knew Sam Andrews very well, but that he had heard nothing of a trial of some type held in Flint, Michigan, March 16, 1975, regarding the A. U. A. and charges against Sam Andrews and Zaia Ismail. He also testified that he read the Assyrian Star, but he had not read anything in it referring to such a trial. When questioned regarding some names he had signed to a letter, Rev. DeBaz testified: "Yes, I did sign the names – many names from Canada in that telegram – in the name of the youth of the East. But I asked Zaia if it was permissible to write their names on that telegram. He said, ‘Yes, go ahead. ’ And I did … I asked Zaia, being son of Malik Yacoub, the Malik Ismail, and most of London, Ontario, residents. They are related to Zaia, and they regard Zaia as their chief and leader. " He had not signed Jack Ismail’s name to the telegram "For the simple reason: Jack is not interested in those things. His wife belongs to a community church, and just can’t – I couldn’t reach him to call or ask him. " When Attorney Robinson questioned him regarding Mrs. Shimun’s brother, Joe, Rev. DeBaz testified: "I have met Joe on one occasion, but I am not – we are not acquainted with each other. " Attorney Robinson then asked whether Mrs. Shimun’s brother was a member of the Church of the East, and Rev. DeBaz testified: "I don’t think so. I believe I heard – as I heard, according to his friends from Iraq, that he belonged to the Communist Party. He is a Communist. " When asked if that was why he had not signed Joe Kallu’s name to the telegram, Rev. DeBaz said, "… This is very logical, that he wouldn’t go against his brother-in-law and sister – denying them – after he was very proud that his sister was married to the Patriarch of the East. "
Attorney Robinson then asked Rev. DeBaz about a meeting of the A. U. A. in 1973, and Rev. DeBaz stated: "In 1973 there was an Assyrian-American convention in Flint, Michigan, and I was asked by the Federation – Assyrian Federation – to go and say the opening prayer, which I did, and left two minutes after I said the grace or opening prayer … Assyrian-American Federation, Assyrian Universal Alliance, Assyrian Association – they all combined, and it is called the Assyrian-American Federation as one body, as the United States – 50 states – it is called the United States of America. " Rev. DeBaz then testified that while he was in Chicago, in addition to being a priest he had worked as a Cook County deputy sheriff for two years. He had been in Chicago from 1961 until 1970. When he was transferred to Flint, Michigan, he had asked the Patriarch’s permission to obtain an outside job, which he enjoyed, and he was making more money than he had ever made before. Rev. DeBaz testified that he had been at fault in conducting baptisms and funerals for people who were not members of the Church of the East, but he felt that everyone was entitled to such sacraments. He had not charged anyone for these services. Rev. DeBaz did, however, agree with the Patriarch that the Church of the East should not perform marriages for non-members. He testified that he left "because of whole sad situation in the church. And I wrote to the synod of the bishops, to His grace
Mar Yosip Kh’nanishu’, telling them unless this drama and this wedding is over, I am going to Chicago, I will worship God under the roof of my house, and I will do nothing until this whole mess is straightened up. I had a reply from the synod of the bishops telling me, ‘Go to Chicago. Don’t do anything until a bishop is sent there. He will tell you what to do. ’ Then His Grace, Mar Aprim Khamis arrived, and he brought with him a letter from the synod of bishops that Reverend DeBaz will serve in his old parish, Mar Sargis Parish, as full-time priest, and Reverend Gulyad Atto will assist him. And Bishop Khamis was assigned by the synod of the bishops as the administrator of the Church of the East in the United States and Canada. " Rev. DeBaz said he had a sister in Milpitas and was staying at her house, and that he had stayed at the PSA Hotel in San Francisco only one night, because it was late when he arrived in San Francisco, and there was no one to drive him to his sister’s house.
Attorney Pestarino then recalled David Ismail. Mr. Ismail testified that he had three guns, but not at his house. The first one he bought in 1967 and sold in 1970. And in 1970 he bought a second gun, and in 1972 he bought a third gun. In 1973 he sold one of the guns, as his wife didn’t like guns and they had had some arguments over them. The gun he presently owns is kept at the home of his cousin, Hermis Ismail. He had owned guns when he was in Syria, and had given them to his cousin. The gun he presently owns he bought in Detroit. He bought the other two guns in Canada from "Tom" and "Dominic".
During a cross-examination by Attorney Robinson, Mr. Ismail stated that he loved guns and had bought the gun in San Francisco because it was very cheap. It was Attorney Robinson’s understanding that Mr. Ismail had brought his guns with him to Canada from the Middle East, but Mr. Ismail denied this. He said he bought one gun in Detroit and the other two in Canada: one from a guy in London, Ontario, named Doc. This was in 1967. He didn’t bring his guns with him from the Middle East because he didn’t want to break any laws. He bought a gun in 1969 from someone at Ford named Tom, and he had bought the third gun in December, 1971, or January, 1972.
The defense rested its case, and the Exhibits brought for evidence were ruled upon. Defense Exhibits A through Q were accepted. There was, however, some discussion on Defense Exhibit r. The document came from Syria and had been translated by Rev. DeBaz. Attorney Robinson stated that he didn’t feel the document had been properly authenticated. The court said that the document could be admitted to evidence without certification from the U. S. government, and the document seemed to state only that there was no record of David Ismail’s arrest in Syria. However, Mr. Robinson could have the translation checked if he felt it was not accurate.
Concerning the document, Attorney Robinson stated: "Your Honor, the thing that disturbs me is that I don’t see how they came up with that document, because I have tried with our office and our power to get it; we have tried with the FBI to get it; we have tried with the CIA to get it; and we can’t get it. And all of a sudden it pops up in the middle of the trial, and in the hands of Reverend DeBaz. " The court said it couldn’t understand why Attorney Robinson had not been able to get a copy of the document, as it appeared to have been issued on February 22nd, 1976. The translation was written on the back of PSA Hotel stationery. Attorney Robinson argued: "There is something else here that bothers me – on here – besides the whole thing. It is, number 1, the date of birth is obviously wrong. The defendant says he was born in 1935. On here it says 1938. Number 2, it says that this is valid for three months only. What does that mean? We don’t know how far back these records go. When they – I am sure that they – knowing this government – they might not even have kept records in 1960 and ’62, the crucial period we are talking about. This is just so fraught with hearsay and unreliable, that it scares me to let something like this come into evidence. ‘Present address: Tel-Tamer, No. 266. ’ Who lives there? There has been no testimony that somebody lives at Tel-Tamer 266… There has been no foundation laid for this document. " Attorney Pestarino stated that the document had four official seals on it. The court stated that the document had not been attested to as a correct copy, nor had any foreign official certified that the signature was genuine … Attorney Pestarino said that the signature was genuine, and Attorney Robinson stated that it was impossible to be sure. There was no accompanying envelope with the document. The court stated that the document actually could be admitted into evidence, but since Attorney Robinson was doubtful of the translation, the document was released to him so that he could have the translation checked.
OPENING ARGUMENT ON BEHALF OF THE
PEOPLE OF THE STATE OF CALIFORNIA
BY Mr. ROBINSON
Your Honor, Mr. Pestarino, members of the court, Ladies and Gentlemen of the jury: Ladies and Gentlemen, this is commonly called the argument by the attorneys. And I think that is a misnomer, because I didn’t ask you people to sit with us through the last month, to stand up and argue with you at the end of the case. What I like to consider this as, is a chance for me to discuss some of the evidence with you; to give you my views on what I think the evidence shows in this case; go over a little bit of the law with you; and let you reach your own decision on the case. Before doing that, though, I would like to take this time to thank you: thank you in the name of the People of the State of California, who I represent; thank you in the name of the court; thank you in the name of the people that live and reside in Santa Clara County; thank you for giving up a month out of your life to come down here every day and judge another human being. It is important. It is a hard job. It is a necessary job, though, to make this system function. And you fourteen people did it. I wish we could compensate you more. I wish the system was designed so that jurors could be adequately paid for the time they take away from their homes, their jobs, their friends, to come down here and do it. Unfortunately, that is not the way we compensate people. But I think you sort of got an insight into how the system works, and what it is all about. And I hope you go away knowing that this is how your system is being run; and you go away thinking, "Well, I think everybody in this case got a fair shake. " But I will thank you very much for coming down here.
What I would like to do initially is talk a little bit about murder, if I can, and then I will go through some of the evidence and sit down. Murder is the unlawful killing of another human being with malice aforethought. Those are big legal terms: malice aforethought. What does that mean? Well, it is not that difficult to understand when you break it down into something that I can understand, and hopefully you can understand after I have an opportunity to explain it to you. Malice aforethought, ladies and gentlemen, is defined by the law either of two ways: there is express malice, or there is implied malice. Okay now, what is an example of express malice? Well, the law says that malice is express when there is a manifestation of an intention on the part of one individual to kill another individual. Okay. It is a manifested intent to kill another human being. Now see, we are talking about intent – what goes on in the person’s mind. Well now, you have to look to what his actions are. And by looking at Somebody’s actions, you are able to decide what goes on in his mind. And that is how the law says, yeah, you look at intent, and you determine intent from looking at somebody’s actions – somebody’s conduct. Because we haven’t developed to that stage of our progress on this earth yet – fortunately, we will never develop to this stage – where after somebody commits a crime we can operate on him surgically, look into his mind, and say, this is why he did it. We haven’t developed that far, and God forbid if we ever do go that far. So we have to decide what somebody is thinking – what he intended to do – by looking at his conduct. Express malice: manifested intent to kill another human being. An example of that is, if I pick up this gun – and you twelve people are watching me – I point this gun at an individual, and I pull the trigger. "Bang! Bang! Bang!" That is an example of express malice. Every one of you people would say he intended to kill that person. He picked up a gun, he pointed it at him, and he pulled the trigger: manifest intention to kill another human. Example of express malice. Now, what is implied malice? Well, implied malice is simply this, that if a killing results because of a dangerous act, or an act in which there is a reasonable probability that somebody would be killed, that is implied malice. For example, I am holding the gun like this, and I turn around and spray it out into the courtroom with all of the spectators out there. Is there a reasonable probability that somebody is going to be hit by this bullet, and somebody is going to be killed? Sure. I might get up and say, "Wait a minute. I didn’t intend – I didn’t intend to hit any of those people. " The law says, "I’m sorry, pal. Your act is so dangerous that we are going to imply malice in your act. " That is an example of implied malice. In this case here it is clearly express malice: manifest intention to kill another human being. Now, what about aforethought? Simply means that you manifested this intention to kill – manifested this intention to do this dangerous act – before you did it. Okay? That is all it means. So, for example, let me give you an example of where there is no express or no implied malice. I am holding this gun like this, and, not being familiar with guns, I drop it. Okay. The gun hits the floor, a bullet discharges and kills somebody in this courtroom. Okay. No express malice there. No implied malice there. The man is not guilty of murder. Suppose, though, in discussing aforethought, after I drop this gun, after it hits the ground, after it accidentally goes off and kills somebody, I say, "Boy, this is my lucky day! I wanted to kill that son of a gun ever since I have been on this earth. I am glad he is dead. " Is there aforethought there? No. Uh-uh (negative). No malice aforethought. That is just basically what malice aforethought is.
Now, we have already talked about murder: the unlawful killing of another human being with malice aforethought. When we talk about "unlawful", the first thing we might trigger in your mind is: What is a lawful killing? Obviously, if the law says a killing has to be unlawful there must be certain types of killing that the law says are lawful killings. Well there are. A lawful killing is, for example, a killing in self-defense. Okay? Somebody is coming at me. They are trying to kill me. I pull a gun, and to protect myself I shoot this person. That is a lawful killing. But we are dealing with an unlawful killing here. There has been no evidence that this killing was in self defense. So we have an unlawful killing of another human being with malice aforethought. I told you at the start of this case that I believe that the evidence would show that David Ismail willfully, with premeditation and deliberation, killed His Holiness, Mar Eshai Shimun XXIII, Patriarch of the Church. Well, what does that mean? That means that it is a first-degree murder. Let’s talk about murder for a minute. Murder is divided into two degrees. Whenever you charge anybody with murder, you don’t charge them with first-degree murder. You don’t charge them with second-degree murder. You charge them with murder. That is what the Grand Jury did. They indicted for murder. And then you present all of your evidence in the court, and the jury makes the decision whether it is first-degree, whether it is second-degree, or whether it is something else: whether it is voluntary man-slaughter – involuntary manslaughter. Murder – first-degree murder – has certain elements. I take this liberty to read you this instruction which the court will give you. It says, "All murder which is perpetrated by any kind of willful, deliberate, and premeditated killing with malice aforethought, is murder in the first-degree. " So now we have some additional elements. We have already discussed malice aforethought. We know what that is: express versus implied. So now we have three additional elements, ladies and gentlemen, to make it first-degree murder. It has to be willful. You have to have intended to do it. It has to be deliberate. And it has to be premeditated – this killing. Well, what does the law say that deliberate means? Let’s talk about that. Deliberate means that you formed or arrived at or determined the fact that you are going to kill this person as a result of careful thought and weighing of considerations for and against the proposed course of action. In other words, you decide in your mind, "I’m going to kill this person. " Okay? Now, how am I going to kill him? Where am I going to kill him? Let me think about killing him versus not killing him. You deliberate – think about it ahead of time. Deliberation is not hard. We do it every day. You are watching television – I am watching UCLA play Indiana on Saturday and I say, "Gee, I would like to go over to the store and get some potato chips to eat while I watch this game. " But I say, "If I go now I might miss some of the game. Should I miss the first part or miss the second part? Or maybe I will go at half-time and get back quick. " I deliberated. I said, "What are the pros and cons?" and reached my decision. Everybody deliberates in everyday life. That is all you need for first-degree murder. Premeditation means "considered beforehand". You deliberate before you kill. You consider it. That is all it means. The law says, if you find that the killing was preceded and accompanies by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation so it must have been formed on pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder in the first degree. What does the law mean by "not formed under a sudden heat of passion"? Okay. I am walking down the street. I got a quick temper, and I carry a gun in my pocket. Okay. And somebody walks by me, and they brush up against me. I turn around and say, "You son of a gun! "Bang! Bang! Bang! Bang! That is clearly not a premeditated, deliberated killing. That is a sudden-type killing that occurs. It is not enough to reduce it to voluntary manslaughter, because the law says, "Wait a minute, pal. Just because somebody brushes up against you – that is not enough to reduce it from murder to voluntary manslaughter. But it is enough to make it a second-degree murder. " No premeditation – deliberation. It says that – the law does not undertake to measure in units of time the length of the period during which the thought must be pondered – the thought to kill before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. Okay. The classic case that you are talking about here – between first-degree murder and voluntary manslaughter – is this: A man comes home – sees his wife in bed with another man. Okay. He is angry. He is mad, runs into the closet, gets a gun, and shoots either his wife or her paramour. Okay. Deliberate, premeditated killing? Probably not. Probably not, okay? Although the law says it doesn’t undertake to measure in units of time, that probably isn’t. But let’s take that same example. Man comes home, sees his wife in bed, runs in, gets his gun, and it is empty. So he runs down to the store, gets some bullets, buys them, puts them into his gun, comes back, and then kills. Deliberate, premeditated murder. The law goes on to say: the true test for deliberation and premeditation is not the duration of the time – not how long the individual had – but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time. But a mere unconsidered and rash impulse, even though it includes an intent to kill, is not such deliberation and premeditation as will fix an unlawful killing as murder in the first degree. I am now going to talk – and I will explain my reasons later – about second-degree murder in this case. I am not going to talk about voluntary manslaughter. I am not going to talk about involuntary manslaughter. What I am going to do now – I am going to preface this by – no, I am not going to do that. I am going through some of the testimony that we have heard, if you will allow me to do that.
It has been a long trial. Let me sum it up a little bit, and see where we stand. We heard Dr. Mason, the coroner, testify. And among other things Dr. Mason said there were three wounds on the decedent: three wounds of entrance, one wound of exit, because he found two of the bullets still in the decedent’s body. And he said that – drew us a little diagram here – there was a gunshot wound of entrance here, and gunshot wound of entrance here, and a gunshot wound of entrance here (indicating). Okay. Three solid wounds right in that area. There was a gunshot wound of exit here (indicating). This bullet here come out here – went right through, was found in the wall. These other two remained in the body of the decedent. He told us that the first wound – the one that went in and went out – was a straight-on parallel wound. "Well, Doctor, that is fine. You gave us an opinion. What do you have to support your opinion?" Because that is the important thing in this case. Simply because a person is an expert – let him convince you what he bases his opinion on. And the doctor says, "I’ll tell you why it was a straight-on parallel wound. Because it went in twelve and a half inches measured from the top of his head to where it entered. It went out thirteen inches from here to there (indicating). It is a straight-on parallel wound. It went right through. " Okay. He said wound number two – wound over here – wound over here – excuse me, over here and over here (indicating). – wound number two, he says, extended downwards. That is important. Remember it. Downwards at an angle of thirty degrees. The bullet was in the body. It entered and it went down. A person firing down – the bullet enters and goes down through the body. He told us that went in up here. He says a certain amount from above the head. Was found down here – it is a downhill wound. It is not an upward wound – on your knees firing up. It is a downward wound. If you hit the person the first time, and he is starting to fall, and you continue to fire, it is a downward wound. And the third wound: downward at an angle of twenty five degrees. Once again a downward type wound. He said that there were no marks or wounds or anything like that, and he said there was no gunpowder residue on the victim or on his clothes. Okay. And he told us the significance of that – that because there was no gunpowder residue – no patterns from the gunpowder – he said that he could tell us that the shot was fired from a distance in excess of two to three feet, because if you were closer – if you were within two or three feet – the gun, because of combustion, would leave gunpowder residue on either the man’s shirt, clothing, or body. There was none in this case. He is able to say, as an expert; that the shot was fired from a distance in excess of two to three feet.
Sergeant Parrott – what did he tell us? Well, he did the diagram for us. He drew this. He told us that the light in the chandelier in the dining room was on, consistent with Mrs. Shimun’s testimony that, in fact, they had eaten dinner, that her husband had cleared the table – was preparing the coffee when she was upstairs bathing their child. That this light (indicating) in the living room was off. It wasn’t on. That this light in the hallway – the entrance way – was off. It wasn’t on. This light on the outside was on. This light here was on. He told us that he gathered the evidence; and he took the photographs which you will see when you go back in there (referring to jury room). He told us, in gathering the evidence; that he found the casings. Okay. One of the casings was lost in the shrubbery. Couldn't find it. But he found two other cases. And where did he find them? Outside. One here; one here (indicating). No casings found inside the house. Okay. He told us that he needed artificial light to take these photographs because it was dark there. He told us where the casings were found. And you are going to see these pictures. He marked them. Number four is where a casing was found outside. Number three is where a casing was found. You can’t see these good. Don’t worry, because you will see them back in the jury room. I am just giving you an example. Number five, with the green ‘X’ is where the victim was found, indicated by Sergeant Parrott, and indicated by the victim’s wife. Number five, again: where the victim was found; number three: where a casing was found in relationship to the front door. And this picture here shows the front of the house, and the escape route used by the killer, the red-line. Number five, once again where the victim was found.
Carol Damron. What did she tell us? She told us that it was about 6:40, 6:45, at night – average night for her. She was – her husband had gotten home from work. She made him some dinner. They were seated in the living room and she heard a noise. And Mrs. Damron -- thank God for Mrs. Damron – Mrs. Damron thought it was her garbage cans that had been knocked over. Her garbage cans had been knocked over previously by some kids, and she was determined to catch them this time to see who was knocking over her garbage cans. So what does she do? The minute she hears that noise she runs out of her house, thinking it is the garbage can that is being knocked over, and thinking it is kids, and she wanted to catch them. As she runs out of the house, she sees a man running from the Shimun house. She doesn’t see him walking – doesn’t see him trotting. She sees him running fast from the Shimun house. And the man runs – you will see it in the picture – across the street this way in front of Mrs. Damron, goes onto Los Pinos, and starts to turn down Los Pinos. What happens? He trips. He trips over a piece of chain that is across some of the juniper bushes that you cannot see at night – that the officer testified he needed his flashlight to see it. They needed artificial illumination to see it. Mrs. Damron, who has lived in the neighborhood for a period of time, says you can’t see that chain at night. And he trips over it and he falls. And he gets up. How did he get up? He gets up awful fast after he fell, and he takes off down the street. Robert Damron – he takes up pursuit after Mrs. Damron screams and yells, because Mrs. Shimun is out of her house by this time. He gets into his van and he starts down the street. And he doesn’t see the defendant on Los Pinos. He doesn’t see anybody – strike that. He sees somebody, but he doesn’t see the defendant. He drives down on Cottle. Doesn’t see the defendant at Cottle. Has to ask somebody, "Hey, did you see a guy in a gray suit come down here?" "Yeah, he is up this way. " Turns left on Cottle, and a half-block from the shopping center – one half-block, ladies and gentlemen – is the defendant. And what is he doing? Walking at a fast pace. No longer running now. Okay. You don’t keep running once you hit Cottle. You walk, and try to get into the sanctuary of the pizza parlor.
Nick Stukan. What did Nick Studan tell us? He lives right across the street. They were in their dining room, which faces the street. Blinds were closed – drawn – but the window was open. Did he hear any noises? No. The first noise he heard is Mrs. Shimun screaming out in the street. That is what attracted his attention. His daughter went and opened the door. He went outside. He took chase with Mr. Damron in the van.
David Morgan. David Morgan is down on Los Pinos. He is waiting for the key to purchase – to get inside his new home. He is with his wife. And he hears something, he says, like firecrackers. Firecrackers he thought they were, and he hears that, and he starts to walk up, and he sees the defendant running. And how is he running? He runs right by him. He runs pretty quick. He says he is not walking, he is running pretty fast – pretty quick. Runs right by him down Los Pinos – he tells us that – when they see the defendant. He gets picked up by Mr. Damron and Mr. Studan as they are taking chase. And when he sees the defendant down, a half-block from the shopping center, says, "Yeah, that the guy that ran by me. I recognize his suit. I recognize the man. " He sees him go into the shopping center, sees him walk by some cars, and he says, "He appeared sober to me. " "From what?", I say. "Well, what did you base that on, sir? We don’t care what your opinion is. We want to know the facts – what you base your opinion. " "Well, I didn’t think he was drunk. I thought he was sober because of the way he ran. When he got into the shopping center he didn’t wander through it aimlessly – didn’t bump into cars here and there. He had a direction. He went there. "
Officer Lintern, the officer that found the gun where the defendant tripped over the chain-link fence, says he found the gun – preserved it for evidence. It was dark. Couldn’t see the gun without using his flashlight to see the gun and see the fence – the chain-link fence.
Officer Neal. Six fifty-three. He is in his patrol car. He is advised of a shooting, starts to respond, then gets another call over the radio saying the man is in the shopping center, goes to the shopping center, makes contact with the citizens, and is advised that the defendant – the man – is in the pizza parlor. Goes into the pizza parlor – and you recall what he described – he sees the defendant in there having a beer – got a cigarette in his mouth – and he approaches the man with his shotgun out. And he gives him certain orders – tells him to do certain things. Okay. What does the defendant do? He follows them. Is he too drunk to understand what he is supposed to do? Uh-uh (negative). Officer Neal says, "I told him to put his hands on the table. " "What did he do?" "He put his hands on the table. Told him to stand up. " "What did he do?" He stood up. Told him to lean against the wall. " "What did he do?" "He leaned against the wall. " "Was he stumbling or anything, Officer?" "No. Did everything I told him to do. Brought him back to the scene. He followed all of the instructions. Put him in the patrol car and everything. Brought him back to the scene and read him his Miranda rights. " "What did he do when you read him the Miranda rights?" "He listened very carefully. ‘Sir, you have the right to remain silent. Do you understand that right?’ Listened carefully. ‘Yes, I do. ’ ‘Anything you say can be used against you in a court of law. Do you understand that right?’ ‘Yes I do. ’ ‘You have a right to an attorney – to have an attorney present with you when all questions are being asked of you. Do you understand that?’ ‘Yes I do. ’ ‘If you can’t afford to hire an attorney, one will be appointed to represent you free of charge. Do you understand that?’ Listened very carefully. ‘Yes I do. ’" Officer Neal told us, "Sir, would you like to talk to me about what happened?" What does the defendant say? "I won’t answer any questions in regard to the incident, but I will answer other questions, such as my name, how I got here", things like that. But nothing in regard to the killing. Is this somebody who doesn’t know what he is doing? Is this somebody too drunk to understand? Or is this somebody who is thinking, "Yeah, I got a right to remain silent. I’m going to keep that right. " "I’ll talk to you about anything, Officer, but not about the incident – not about the killing. " Does he say, "Gee, I don’t remember what happened. I was unconscious. "? Uh-uh. He says, "I don’t want to talk. " Asked the defendant his name. He answers. Asked him other things. He answered. But won’t talk about the incident. His opinion, from being with the defendant from 7:00 o’clock at night until 12:30 in the morning – five and half hours – the defendant was not under the influence of alcohol. "What do you base it on, Officer? Don’t come in here and give us some opinion without giving us some facts to base it on", which is fair. "Well, I based it upon: number one, the way he responded; number two, the way I asked him to do things – he did it; number three, his walking ability – he didn’t stumble or anything. He understood. I told him, "When you get in my car, I got that police dog in there, boy. Don’t make any sudden moves. Don’t be jerking around. " "What did he do, Officer?" "He sat there. Didn’t make any sudden moves. Wasn’t jerking around. " Somebody under the influence? Doesn’t know what he’s doing?
Sandra Haynes took the defendant’s fingerprints. Virginia Adams qualified as an expert. "Mrs. Adams, don’t come in here and tell us you are an expert unless you give us some basis for your opinion. " She says she is positive that is the defendant’s fingerprints on the gun. "Wait a minute. Let’s go through the fingerprints. What makes you positive?" She draws a diagram and says – shows you – blows up the fingerprints of the defendant versus the latent print, and says, "See these points here – the ridges, the characteristics – they are the same. " Something we can understand and appreciate. Some facts to base her opinion on. Okay. And Henry Inami from the crime lab does the test with the gun – with this particular gun. Okay. He has fired this gun. He sees how it operates. And what does he tell us? Well, he tells us that the bullets that came from the victim – from his body – those are the only ones that you can identify because the other one was crushed in the wall – and the casings that were found at the scene came from this gun right here. This is the gun. This is the murder weapon. He told us about the way you use the gun, remember? He said the various procedures that you use to make the gun operate. Well, you have to load the magazine or the clip. You got to put the bullets in the clip. Okay? You have to place the clip into the weapon – means you got to take it, jack in that clip which is at the bottom, you have pull back the slide to introduce a cartridge into the chamber. Pull it back, jack it in, pull the trigger to fire. Upon firing the slide is forced back, introducing a second cartridge into the chamber. Okay? All of those steps – all of those processes are required to fire that gun. Bullet into here (indicating), pull back the slide, point, and fire: all of those things. "Well, sir, can you carry this loaded, and doesn’t it have various safety devices?" "Yeah, it does. You can carry it in your pocket. It has a safety in here. It won’t fire unless you activate the safety and jack that thing up here. " "The casings, sir. You fired that gun?" "Yes" "What is the difference between an automatic and a revolver?" "Well, an automatic ejects the casings after the projectile leaves the casing, and a revolver keeps the casing in the gun. This is an automatic. It ejects the casing. " "Well, when you fired this gun, is there any way that the casings are ejected?" "That is true. They go back over your right shoulder and approximately ten feet. " Okay. Question: If Mr. Ismail, the man seated right over there, gets on that witness stand and says, "This incident occurred inside the house. It was – I don’t remember, but, gee, the killing went down inside the house, I think", what are the casings doing outside the house? Did they fly through the front door? Where were the casings found? They were found outside the house? About ten feet. If a man was to stand at the front door, and the minute it was opened was to fire that gun – back and to the right. We don’t know. When the casings hit, obviously they just don’t hit and plop there. They must bounce a little bit – move around on the concrete. But they are outside the house. "The Projectiles, the bullets: there is a twenty-two short, twenty-two long, and twenty-two long rifle. What has the most killing power, Mr. Inami?" "Well, the twenty-two long rifle, of course. " What type of bullets were used in this case? Twenty-two long rifle. Noise? "Mr. Inami, what type of gun makes the most noise: a forty-five, a thirty-eight, or twenty-two?" "Well, a forty-five makes the most noise, a thirty-eight second, a twenty-two quietest. " "What type of gun is this?" "That is a twenty-two. "
Mrs. Patel, owner of the Oasis Motel. Mr. Ismail arrives, four o’clock, November the 6th, a Thursday, arrives in a cab, comes in, pays cash for his room, says he is staying one night. Didn’t see any luggage with him. Leaves around 6 o’clock in a cab. "Never asked me for a place to eat, or where a bar was. " Okay. Monte Beaman, cab driver. "Yeah, I got a call to go to the Oasis Motel. Five thirty, six o’clock, sometime in there, reflected on my log. Went to Room 129 at the Oasis, knocked on the door, the defendant answered and said, ‘Be out in a few minutes. ’" Beaman said, "All right. " Walks outside by his cab, stands there for a few minutes, waits two or three minutes, and the defendant comes out, sits in the front seat of the cab – not in the back, in the front seat of the cab – and says, "Take me to Santa Teresa and Cottle. " Monte Beaman says, "Okay" The Oasis Motel is approximately three miles from Santa Teresa and Cottle. Drives him over there. During this time they engage in some small talk – talk about the weather – and the defendant says, "It gets dark early down here, huh?" Monte Beaman says, "Yeah. " They get to Santa Teresa and Cottle. The defendant says, "I want a pizza. Take me over there to that pizza parlor. " Drives him over and lets him out, and before he gets out he asks Mr. Beaman, "Do you know where Woosley is?" Monte Beaman says, "No, I don’t know where it is. Let me look at the map. " Pulls out a map, finds it. "Here is where you are, and here is where Woosley is. You just go down, and that is how you get to Woosley. "
"Mr. Beaman, in your occupation driving a cab, I take it you have seen many people who are under the influence of alcohol – drunk, intoxicated?" And those words aren’t synonymous. Under the influence, intoxicated, and drunk don’t mean the same thing. "Yes, I have. " "Okay. Was the defendant in any way, in your opinion, under the influence of alcohol?" "No. No, he wasn’t. " "Well, what are your reasons, sir? Give us some reason for this opinion. " "Well, I sat with him in the front seat. He conversed with me perfectly normal, no slurry speech. When he walked, he walked okay. He was intelligent. He knew what he was doing, knew where he wanted to go. He appeared calm. Yeah, I don’t think he was under the influence of alcohol. "
Mr. Borg came down from Canada – works for the Byron Swayze Travel Agency. On October the 29th Mr. Ismail came in and made arrangements to go to San Francisco. Leaves on the 30th of October. Pays cash, $199, for a one-way ticket. Pays cash – one-way ticket. Larry Crowley, Sunset Motel. He was on duty there that weekend because his mother-in-law, Edith Hart, and her husband had gone someplace, and every once-in-a-while when they would go away – once a month, twice a month – they are probably – never been in – let me stop right here, if I might. I am only human, okay? During the course of a trial I try and write down as much as I can as to what was testified to. Now you fourteen people together are a lot smarter than me individually, okay? As far as regular things, because I am not the greatest at that. So if I say something that you don’t think is right – that you don’t think that the evidence showed from the witness stand – believe me, I am not trying to mislead you or lie to you, okay? And if you hear something that is different – if you thought you heard something from the witness stand that is different than what I am saying, take your own memory with you back in the jury room. Do you have any doubt at all, the reporter, hopefully, is better than all of us at remembering. Okay? I just wanted to caution you on that. Larry Crowley says that Kitty Benjamin comes in and makes the reservation in the name of David Benjamin; that the defendant checks into room 1 on October the 30th, 1975. It is a Thursday. And when he checks in he is wearing a waist-length coat, slacks, and a European-style shirt. Okay. Not wearing a suit. Then on August – October the 31st, a Friday, he asks him how he gets to the zoo, gives him directions how to get to the zoo, and then he gets a call, a call from Los Angeles, when the defendant has gone to the zoo, saying, "I want to talk to David Ismail. " Well, there was no David Ismail here. "We just have – there is no David Ismail here. " And the guy says, "I want to talk to the man in room No. 1. " Larry says, "That’s odd, how did he know he was in room No. 1 and he just checked in?" But he says, "Oh, that is David Benjamin. " He says, "Okay. Leave a message I called from Los Angeles. " Friday night, according to Larry, he can’t sleep. He can’t sleep in that bed. I’m sure that we all can recall the reasons why he couldn’t sleep. And he is up watching television. From his room in the motel he can see the parking lot – see the motel. It is a small motel. He says between twelve and one o’clock in the morning, two men come out of a government car, go into room No. 1, the defendant'’ room, and stay fifteen or twenty minutes and leave. Okay. He says the defendant doesn't’ leave with them. He stays in the motel. Approximately fifteen or twenty minutes later another man picks up the defendant and they leave. They are gone about an hour. Okay. They come back, the other man returns to the room, stays about ten minutes, then the man leaves. Okay. The defendant stays in his room. Now, the man is wearing a suit, maybe he had glasses, medium build, a two-door car. Okay, you say to yourself, wait a minute that can’t happen because Yule Lazar testified to one thing about the times and everything; Kitty Benjamin testified to another about that night. Well, let me ask you this. If you remember Kitty Benjamin’s testimony, she told us that on the 31st of October, a Friday night, she picked up the defendant at about 6:30, brought him to his house – her house for dinner. Okay? And that he was wearing a suit. They stayed at her house until 9:00 o’clock. They then went to the Hyatt Regency in San Francisco to see the city. They stayed there until about 12:30; had about four or five drinks. She dropped the defendant off at his motel at 1:00 o’clock. That is her version of what happened Friday night with the defendant. Yule Lazar says, uh-uh. Friday night I was with him. He was brought to my hotel about 9:00 o’clock, had dinner with him, I dropped him back off at his motel at about 10:00 o’clock. Larry Crowley doesn’t know the defendant – non-Assyrian, has nothing to do with this – says, no, I remember it this way. Something to think about. Let’s go through what else Larry Crowley says. By the way, has anybody asked themselves: when Mr. Ismail went down to this Oasis Motel down in San Jose with the purpose – well, we get varying stories. Dr. Rapaport says he was going to go to a party down in Turlock or Fresno or something on Saturday. And Kitty Benjamin says, no, when he left my place in San Francisco he was going back to Canada. Yule Lazar says he was going to Canada. The defendant himself says that he was going to Denver, then he was going to Chicago. Where is his luggage? Why didn’t he bring it with him? Why is this the only thing that was found in the motel room? Shaving gear and a towel. Larry Crowley says he had luggage. Larry Crowley says, on Saturday, November the 1st, he came up and said, "Well, I might be checking out. I’m pretty sure I am, but I might stay another day. Can you keep my luggage behind the desk for me?" Crowley says, "Sure, put it here. " He says that he had two suitcases, one AWOL bag, small bag, and one plastic bag, or some sort of covering where you hang suits in and things like that. And he says, "I put them behind there. I saw them. I know he had those things. " He said, Saturday night the defendant returns, and he picks up his luggage. And who is he with? He is with Kitty Benjamin, and he is with another man he doesn’t know. He never saw the defendant wear a suit. He always saw him wear a leather jacket when he was around
Well, Kitty Benjamin tells us that on October the 30th she picked the defendant up at the airport – took him to the Sunset Motel. The defendant unloaded his bag, hung up his clothes: his shirt and his slacks. Where are they? She says that on the 31st, Friday night, she picked him up at 6:30, brought him to her home, he was wearing a suit, stayed until 9:00 o’clock, then went to the Hyatt Regency to see the city, stayed there until 12:30, each had four or five drinks. The defendant wasn’t drunk or under the influence. Dropped him off at the motel at about 1:00 o’clock in the morning on Saturday morning. Okay. Kitty Benjamin says that the defendant didn’t say anything about a gun. He was supposed to have bought this gun in the bar on Friday. He didn’t say, "Hey, boy, let tell you a story about this. I’m sitting down having a couple of shots down the street, and this guy comes in and says, ‘Buy me a brew, will you?’ I said, okay, I’ll buy him a beer. And he says, ‘Buy me another one. ‘And I says – I said, ‘I don’t have any money. ’ And he says, ‘Here, how about this gun for $20?’ He’s crazy!" He doesn’t say anything about that. Doesn’t see a gun on him – nothing about this gun. So Saturday morning she picked up the defendant at the motel and takes him sight-seeing, drops him off at the Sunset Motel, and she goes to Turlock. Okay. Going to be a party in Turlock that night. But she gets down there and she finds out that the party is cancelled. So she spends Saturday night down in Turlock. Okay. Returns to San Francisco late Sunday night. Doesn’t see the defendant. On Monday morning, the 3rd, sees the defendant in the hotel – conversation with him – nothing else. Doesn’t see him that night. On the fourth of November he comes to her house at night. Has dinner. While she sees him on the fifth – she sees him in the hotel again – doesn’t see him that night. On the sixth she sees him in the hotel again. He says that he is leaving. He is going back to Canada. She says that she is not a member of the A. U. A. , they never discussed politics, they never discussed the Patriarch. Okay. "Well, what did you discuss, Kitty?" "Well, he was thinking about opening up a business in San Francisco. " "Okay. Where did you go? Did you bring him by some Assyrian businessmen to let him know what the chances of getting a loan were – business opportunities were ?" "Yeah, yeah, we did that. " "Where did you go?" "Well, we drove by a couple of stores and gas stations at about 10:00 o’clock at night. " "I take it you went in and talked to these?" "No, he just wanted to see the locations. " Okay. Business trip? She says she never heard of Sargis Michael, the person from the A. U. A. who visited the Patriarch about a month before he was killed. She doesn’t know – never heard of Mr. Kanna in Australia. I didn’t think I was that bad. And the defendant never mentioned a gun to her this whole time there, and she never saw him with a gun.
Yule Lazar. October 31st, 1975, 7:30-8:00, he had dinner with the defendant at the hotel. The same time Kitty is eating with him at her house. 10:00: he takes the defendant back to the Sunset Motel. The defendant wanted to establish a business in San Francisco. He tells us, on Saturday, on November the 1st, he is going to go to a party in Turlock too. Same party Kitty is going to, only he finds out that the party is cancelled. Kitty doesn’t find out. She lives a block away from Yule, but he finds out that it is cancelled. So he doesn’t go to Turlock. He picks up the defendant at the Sunset, and the defendant is dressed casual. Okay. Yule is dressed in a coat and tie, so he says, "Well, we will go back to my place. I only live a couple blocks away, and I will change. I will change to casual too. " And so they go have dinner: Jack London Square. The defendant pays for this dinner because, according to Yule, he had bought him a dinner the previous night. Then the defendant moves into his hotel. Why? "Because I give fifty percent discount to all Assyrian people. " On the 2nd, the Sunday, he takes the defendant to church. Doesn’t see him at all after that. On the 3rd he has coffee with him at his hotel. That is the extent of his contact with him. The 4th: coffee. That is it. The 5th: coffee. That is it. The 6th the defendant checks out. He pays cash – one hundred and something dollars, you will see it in the receipts there – and he says that he is going home to Canada. Okay. Mr. Lazar is the head of the Universal Alliance in San Francisco. His brother Sam was the head of it before he was. He didn’t see a gun with the defendant; never talked about a gun when he was with the defendant. Talking to him over coffee, with dinner, they never discussed politics, never discussed the A. U. A. , never discussed the Patriarch. Okay. That is what he tells us. He doesn’t know a Mr. Kanna, the head of the A. U. A. in Australia – doesn’t know him, and he doesn’t know Sargis Michael. Never heard of him either. He tells us – because we got the business records – that when the defendant leaves he makes a couple of calls to Australia – the day he leaves, November 6th. He has to call somebody who he has never seen – never visited him in Canada. He says it is his niece. Never comes up and sees him; but on November the 6th he has to call her; and he has to call Mr. Kanna, too, in Australia. He says – this is Yule Lazar – no interest in the Church of the East, either politically or religiously. Says he knows Ron Myers. Okay. Says that, yeah, he used to have a gas station over on MacArthur in Oakland. Ron Myers worked for him. That he sold the gas station to Ron Myers. "No, I have never had a gun in my life. No, I have never seen this gun. No, I did not buy this gun from Ron Myers. " Okay. The inventory of the station: he brings in all these extensive records. Okay. And he is going to tell us, see, "I couldn’t have sold the station" – for Ron Myers says, "I think it was $600. I don’t remember; I didn’t keep the note. It was a long time ago, but I think it was $600. That’s how I got the gun. He said, ‘I’ll knock it off if you’ll give me that gun. " I said, ‘You can go down the street and buy a gun. ’" "No, no! I want that gun. " Myers says, "Gee, if I can make a profit, I’ll do it. " Why do you think that he didn’t go up the street to buy a gun? Look at the gun investigation. Are you a United States citizen? At that time you had to answer that question. If it was "No", caput! You do not get a gun. The law has been substantially changed. An alien can have a gun if he registers and checks it out. But Lazar didn’t do that because he knew. Look at the registration from Siegle’s. When Siegle’s said, "Yeah, I sold that gun to Ron Myers", it is right there – right at the time Myers said he bought it when he took over that station. Lazar says something interesting that I hoped you picked up. I had the reporter review it to make sure it was accurate, and it was. He says the inventory of the station was approximately $4,410. 30. Okay. This is the second time that he brought all of this stuff down. But the first time he testified he made one fatal mistake – one fatal mistake. "Seventy-five to eighty-five percent of the merchandise belongs to Union. How can I sell that station to Ron Myers for $600?" That is what he said. It is in the record. If you got any mathematicians on the jury, do me a favor. Go back in and figure out: if seventy-five to eighty-five percent of the merchandise belonged toUnion, then twenty to twenty five percent belonged to Yule Lazar. Twenty – twenty-five percent of $4400 is about six or seven hundred dollars. Think about it going back in there. Secondly, the man from Union testified. "What about private tools the individual had?" His Honor asked him the question. "No. No, those wouldn’t go in the inventory. " "What about the Coke machine, cigarette machine, uniforms?" "No. No, they don’t go into the inventory. " Is there any doubt in anybody’s mind that this is the gun that Ron Myers sold to Yule Lazar? You know, if Ron Myers had something – some motive to lie in this case, you could question that. But what motive does he have to lie? He hasn’t seen Yule Lazar. He was contacted about this killing in 1975 -- hadn’t seen him for five years. "Did you own a gun?" "Yeah. " "Did you own this gun? What did you do with it?" "I sold it to Yule Lazar. " We checked it out. Yeah, Myers sold this gun. The manufacturer said, "We sold it to Siegle’s. " Siegle: "We sold it to Myers. " And he says, "I sold it to Lazar. " Maybe he is lying. Mr. Lazar, you used to own the service station?" "Yeah, I did. " "Do you know Ron Myers?" "Yeah, I do. " Why does he pick out Yule Lazar? Ron Myers isn’t Assyrian. He doesn’t know the Patriarch, isn’t affiliated with the Church of the East, doesn’t know the defendant. Yule Lazar, the head of the A. U. A. , lets the defendant stay in his hotel – fifty percent off – is with the defendant during those seven days in San Francisco.
Mrs. Shimun. She told us she is an Assyrian. She was born in Iraq. She was a school-teacher in Iraq. She came from Iraq to Canada in 1969 – Canada to the United Sates in 1971. While in Canada in 1969 she knew David Ismail. She knew his family. David Ismail approached her in Canada when she first came there and said something like, "We need some educated people on our side. We need some people to fight to liberate Assyria. We have to destroy and smash the church – destroy the foundation of the church and turn the people to politics – get the Assyrians away from the coattails of the patriarch. " These are my words. I am interpreting. Get him away from the coattails of the Patriarch, and get them more interested in politics, more interested in going to Iraq and demanding autonomy, demanding their land back. Don’t let them follow the Patriarch, who says, "Support the local government of the country in which you live. Keep church and politics separate. " Defendant’s brother, Zaia, she told us, is a member of the A. U. A. In July, 1973, the patriarch asked her to marry him. She did get married in August, ’73. She told us that the Patriarch resigned from the church prior to getting married, was asked to come back, came back. Supposed to be for six months. He resigned in January, ’73, came back. After six months – eight months passed, he gets married. And he was still the Patriarch of the church. She told us that the A. U. A. is a political organization. Wants to fight with the Iraqi government to take their land back. She told us that she didn’t have anything to do with the A. U. A. Now is that because she doesn’t like her people? Is that because she is not a good Assyrian? Or is that because she just doesn’t believe in the type of organization that the A. U. A. is?
Look at some of the other witnesses. Fred Kelaita. What more dedicated Assyrian could you find? He supports the Church, supports the people, knows about the people. Dennis Lazar – all of these people: what do they say about the A. U. A. ? "Hey, I don’t want anything to do with that organization!" Look at – well, I will get to that. She tells us that about a month before the Patriarch was killed, Sargis Michael from the A. U. A. came and wanted the victim, the Patriarch, to go to Iraq and represent the Assyrian people, and demand their land. To take over. Okay. As head of the Assyrian church, the Church of the East, the victim said, "No. I am not going to do that. What is going to happen to our people in Iran if I go to Iraq? What is going to happen to our people other places if I go to Iraq? That is crazy!" Mr. Kanna. She knows him. Very active member of the A. U. A. in Sidney, Australia. The man that the defendant called before he killed the Patriarch. The same day. He wanted the victim, the Patriarch, out as Patriarch. He attacked and criticized the Patriarch. The day of the killing, November the 6th, the victim got up early morning. He was working on delaying the synod. As we all know by now, the synod was going to be held on November 19th – common knowledge in the community – and he was going to delay it to January of ’76 – up in Seattle. The synod, ladies and gentlemen, I think a logical inference from the evidence – many people have told us there was going to be a meeting where they were going to decide once and for all who is running this church. The bishops were coming, and I got a feeling – this is my own feeling from the evidence – that what you have here is: you have a man – this man, a twelve year old boy when that picture was taken – here is, well-educated, had given fifty-five years of his life to the church, moved from country to country – everything was for the church – and he decided to retire. Okay. He had given enough. And the bishops said. "Your Holiness, we need you. Don’t leave us. " In January of ’73. "Look, I’m tired. I have put in fifty-five years. I have gone through enough. Let’s get somebody else. " "Well, just stay on for six months. " And he stays on. And he gets married. And the bishops and the people in the church are shocked, quite naturally, and the people are outraged that the Patriarch got married. And they have that meeting over in Lebanon – not in Lebanon, in the Middle East. Okay. And they defrock him. The Patriarch says to himself – and I think this is the kind of man he is – "Wait a minute. I have given fifty-five years of my life for this church. Who are you people to have any illegal meeting and defrock me? What is going on here? I’ll show you!" And he writes a letter, and he sends it to the bishops, and he says, "You are saying that I am out as leader of this church because I got married. Show me where in the Canon Law it says I can’t. Show me some rule, other than custom, that says I can’t. " And with his knowledge and intelligence that he has, he convinces these people. They say, "You are right. Wait a minute. We are sorry. We acted hastily. " And they get together, and they want him back. And that is what we have here. They wanted him back. That is what the letter is – from all these letters. And certain people – certain people are saying, "You are out", even after the bishops wanted him back. Certain people said, "We no longer want this separation of church and state; we no longer want you as leader of the Assyrian people to say, ‘Be loyal to the country in which you live. ’ We want you out!" And the Patriarch says, "All right. You want me out. Let’s have this synod November the 19th, and let’s lay the cards on the table, fellows. Let’s see where you are coming from, and I will show you where I am coming from. " I think he got upset. I really do. And I think he is the kind of a person – a strong enough person that is going to say, "Nobody is going to blackball me out of office. Not after I have given fifty-five years; not after I have done all of this, suffered all of this, and now they are trying to railroad me out. Let’s put the cards on the table. Let’s sit down and discuss this thing, and let’s see who is right and who is wrong. " Maybe a little bit of personal pride, huh? Is there anything wrong with that? But anyway, the meeting was never held. The final determination as to whether or not the Patriarch was going to once again be the leader of the church was never held, because he was killed.
So at about 5:00 p. m. , on November the 6th, Mrs. Shimun and the Patriarch, this man who – well, I don’t want to get into character now. Mrs. Shimun and her husband – they are preparing dinner. They worked in the kitchen together. She is doing some things, and he is doing other things. And they get dinner and sit at the dining room table – right in there – and they eat. It is about 6:30. They finish dinner, and, as was his custom – as was her custom, Mrs. Shimun would take the baby up, give the baby a bath, set the baby down so she could sit down and have coffee with her husband in the living room and discuss what happened during that day once the kid was out of the way. So she is up bathing the baby; and when she gets up, she leaves the dishes on the table because, as was their custom, the Patriarch would clear the dishes from the table, bring them into the kitchen, rinse them off under the water, and set them in the sink so later on in the night – she will come down and take them from the sink and put them in the dishwasher. And he would make the coffee they were going to have. We’ll jump ahead. The next day, when she went back in the house after the murder, she said in fact the dishes had been cleared off the table. They were in the sink, rinsed out. I think it is a logical inference to infer he was doing that that night before he went to the front door. There were two cups of coffee made – two cups out by the coffee. A logical inference that everything was proceeding according to their normal schedule. She told us, when she was upstairs the bath water wasn’t running. She had already run it, or hadn’t started. She was getting some towels, and she didn’t hear any knock. She didn’t hear any ring of the doorbell. And she said she could hear from her position up the stairs – she could hear better than the patriarch, because the Patriarch was getting old – had problems hearing. On Halloween he couldn’t hear the kids come and knock at the door – ring the bell, and she’d have to say, "There’s somebody at the door" – tell him. And she showed us a photograph – brought it in – well, she told us first – well, you will see it. She told us he would go like this (indicating), "Huh?" He’d get closer. Look at the photograph in there, where he is like that when he is talking to some other individuals regarding church business. So she tells us that she is upstairs, and the first thing that she hears is, "Emama! Emama!" Twice. A scream. And what was that scream? What did that signify? It is a danger signal – a warning. What was she supposed to do? What did she discuss with the Patriarch? She is supposed to take their son, John, and run and hide. Why do you think this danger signal of warning? What happened to the Patriarch’s uncle, the person that was the Patriarch before him? He was assassinated. It is the evidence. That is how the Patriarch became Patriarch at twelve years old. Because the prior Patriarch was assassinated. So they have this danger signal; and after she hears this – this is all very fast, she says – she hears, "Emama! Emama!" She hears a scuffle, like a chair is being moved, then she hears three shots. She showed us in these pictures where the Patriarch was found when he was killed. She said this "X" right here is where they had a chair. That is where she drew in where the chair was. That is where the Patriarch was found (indicating). And she says that she came running down the stairs, of course, and was hysterical, and ran into the street. She told us about the policy – the habit, the rule of the Patriarch regarding receiving guests. Nobody – nobody saw the Patriarch without an appointment. It just wasn’t done. You don’t walk in to the President of the United States, walk up and knock on the door, and say "I would like to talk to Jerry. " You don’t do that. You don’t do it with the Pope. You just don’t do things like that. Nobody. The Patriarch didn’t see people without an appointment. He would never ever see a member of the church, a person who wasn’t a member of the church, a clergyman, without wearing clerical garments. No one has ever – has there been one witness in here who has never testified they saw the Patriarch walking around in casual clothes – a shirt and pants? No, now when he was receiving people from the church. She said that he had no appointment to see anybody that night. It is indicative – the two cups of coffee out there – nothing unusual. He wasn’t wearing any church garb. And she said that the day before she started receiving some phone calls. The people would phone up and they would say, this is such and such, and they would give the last two digits wrong on the phone number. And this happened three or four times, and she said it was a man and a woman, and they had an accent in their voice. She told us she didn’t know David Ismail was in San Francisco; didn’t know he was in San Jose. He had no appointment with the Patriarch. That the Patriarch loved the defendant’s father very much; thought he was an honest and a great man.
Fred Kelaita. He told us about the Patriarch’s policy regarding receiving guests or not; his policy regarding what he wore. He told us the Patriarch’s feeling regarding the A. U. A. , and why he felt that way. He told us a lot of things. I am not going to go over everything that Mr. Kelaita told us, but I would like to – I don’t know whether he is here or not – I would like to thank him, his wife, and everybody else for furnishing me with this information; because if it hadn’t been for him, I wouldn’t know half of the history that I now know about the Assyrian people and the church. Fred told us a couple of interesting things. He told us that World War I ended in 1918, and Mr. Ismail’s father was a general in – sort of like – with – the word escapes me now, but like a national guard, after the war ended, in the village from 1920 to 1932. Mr. Ismail wasn’t born then. He was born in 1935. We all know that. So then, from 1932 to 1941, when the defendant was born, what was his father doing? Was he this big military hero, running around the country from army camp to army camp? No, he wasn’t. He was a gentleman farmer in a village in Syria, a small village. Who else told us that? Not only Fred Kelaita, but Mr. Yonan. He told us that too. Zaia Ismail. What did he tell you about going through the military? He said, "We went to visit my father one time – went to the different country to visit him between 1941 and 1943, with my mother and David. Even his brother told us that. What else did Fred tell us? From 1941 to 1943 in fact: yes, the general called the people together, the national guard, and they went to fight with the British. Okay. 1944 to 1962 he was out. He went back to gentleman farmer – the village in Syria. Where is this travelling from military base to military base? Where is being constantly with guns, constantly under the military influence? I’ll tell you why that story was told to you when I get later on in the case. But we have three witnesses now who say that is not true, couldn’t have happened, didn’t happen that way. Credibility of witnesses, ladies and gentlemen?
At the start of this case, my main concern was two things in picking a jury. And I will be candid with you. In every murder case I have ever tried, there is two things: number 1, are you going to be fair to both sides? Number 2 -- I think you remember me asking these questions -- are you going to leave your common sense at home? That is what it is all about. You have to decide who you are going to believe; how much weight you are going to give their testimony, if any. And we talked about determining the credibility of witnesses. The law gives you certain standards -- says that you people are the exclusive judges of the credibility of the witnesses. You decide who you are going to believe, and how much weight, if any, you are going to put on their testimony. And it says, in determining the credibility of a witness, you may consider any matter that has a tendency in reason to prove or disprove the truthfulness of his testimony. i. e. why does the Patriarch, according to the defendant, go off of years of tradition -- fifty five years of tradition -- and allow him to come into the house without wearing his priestly garb, without having an appointment, and say, "Come on into the living room"? Does it have a tendency in reason to prove or disprove the truthfulness of his testimony? "Let me take you into the living room. We will sit down. " How many times do you invite somebody into your living room and leave the lights off, standing there in the dark? How many times, when you have somebody in your house, ladies and gentlemen, and you are going down the hallway right here (indicating), you leave that light off? How many times, ladies and gentlemen, if you want to believe the defendant’s story, when you open the door to let somebody into the house, and you walk into the living room, do you leave the door open? Well, the door had to be left open, if you wanted to believe the defendant’s story, because the casings are found outside. Does it have a tendency in reason to prove or disprove the truthfulness of his testimony? You may consider other things in determining whether you are going to believe somebody or not. The existence or non-existence of a bias, interest, or other motive in the outcome of the case. Who has got something to lose -- got a reason to knock this down. He is a dead player on identity. He is a dead player. Ladies and gentlemen, there is two ways you go into a murder case: you either go identity, or you go diminished capacity -- three ways -- or self-defense. Those are your only ways out. If you are a dead player on identity, you got two other options. Now, was self-defense a feasible option in this case? I don’t think so, because Mr. Pestarino knows in order to show self-defense the Patriarch would have to have had a club, a knife, or gun, and came at the defendant. So what is your third option? Huh? The law says that a witness willfully false in one material part of his testimony -- you should distrust him in other parts of his testimony. And you may reject his whole testimony: just throw it out, reject it -- of a witness who willfully has testified falsely as to a material point, unless, from all of the evidence, you think that the probability of truth favors his testimony. Okay. And it goes on to say that discrepancies in witnesses' testimony doesn’t mean that they were willfully false to you, because everybody -- two people seeing or hearing the same thing, are going to hear it a little differently. One say, It doesn’t mean that they are lying -- doesn’t mean that you should distrust their testimony. But when somebody is willfully false in a material part of their testimony, you should distrust it. You can throw the whole thing out.
Let me tell you a few things about what happened in this case. I want to go over one more thing, too. This is very important. Simply because His Honor gives you an instruction on the law -- he instructs you on voluntary manslaughter -- it does not mean that His Honor thinks this is a voluntary manslaughter case. If he instructs you on diminished capacity, it doesn’t mean that His Honor thinks that this is a diminished capacity case. What you have to do, ladies and gentlemen, is, if the defense raises anything, any sort of an issue at all, you have to instruct the jury on that issue, no matter how fallacious, how far out, because we have those men up there on the Supreme Court who have told us that. His Honor will read you an instruction thought that says you have been instructed as to all of the rules of law that may be necessary for you to reach a verdict. Whether some of the instructions will apply will depend on your determination of the facts, i. e. , who do you believe? You will disregard any instructions which apply to a state of facts which you determine does not exist. You must not conclude from the fact that an instruction has been given, the court is expressing any opinion as to the facts. That sums that up. A lot of times jurors think, "Well, His Honor, Judge Barnett, has had a lot of experience. If he gives an instruction on something, he must think that is what happened. " But that is not so.
Let’s talk about the defendant’s story. Talking about credibility now. Who are you going to believe? If you believe the defendant’s story, I’d expect you to come back with involuntary manslaughter, voluntary manslaughter, second-degree murder; not first-degree murder. So if you believe his story -- let’s go through his story. He came to San Francisco. He has got to explain that. Why does somebody come from Canada down to San Francisco; down to San Jose? It looks one the one hand that he came here to kill the Patriarch, because he does, huh? Looks like he thought about it, premeditated, deliberate, and came down and killed the Patriarch. His story is that he came to San Francisco to see what the weather was like, and to see about opening a business. Do you believe it? What did he do about opening a business? What business opportunities? Did he talk to anybody? Did he apply for any loans from a bank; talk about business? There has been not one scintilla of evidence except Kitty Benjamin’s testimony that she drove him by a closed business at night one time. Came down here to check out the weather when his wife is on welfare in Canada? They don’t have any money, and he is flying down here, paying cash, to check out the weather? He telephones Australia. Why can’t he telephone San Francisco to see how the weather is? Do you believe how he came down here? This man who is spending cash money: $199 for the ticket; cash money: one hundred fourteen, one hundred fifteen dollars for the hotel room; cash money for the other hotel room; cash money -- he is always spending cash. He has got $150 in the bank. And he goes to see his father in Iraq after the Patriarch gets married, what does he tell us? "My father had to send me money because I didn’t have any. And he is going to come down here and open a business, because he has got all of this land over in Syria, and that is where is going to get his money from. Do you believe him? He buys a one-way ticket. Well, once again look at that two ways. A one-way ticket. Look at it and we know what he has done. We say, "Well looks like he came here and intended to kill the Patriarch. He was going to hide out for a while; stay at somebody’s house for a while. " How do you explain the one-way ticket if you come down here on business and you intend to go back to Canada right away? "Well, I got the one-way ticket because I was going to take the bus back. I was going to take the bus to Denver, and then the bus to Chicago, to see relatives and everything. " Anybody believe that? He explains away the one-way ticket. The gun. As you heard Dr. Rapaport say, and for the first time ever, in conversation between the defense attorney and psychiatrist -- fortunately I was able to get the tape -- what did he say? He said the gun -- the gun is the crucial thing in this case. You’re doggone right the gun is the crucial thing, because you bring a gun to somebody’s house -- okay? -- you end up using it. And what is the logical inference? Premeditated, deliberate. You went there to kill that person. Otherwise you wouldn’t have brought the gun. Does that make sense? Sure it does. So how does the defendant explain the gun? Okay. Well, in order to explain the gun, you can’t convince a jury that "I bought a gun in a bar for $20 from someone that I don’t know. " That story has been tried. It doesn’t sell. Okay. But you got to explain that gun some way. So how do you explain it? Well, you do this. You say that, you know, "I was always brought up around guns. I traveled through all of these military bases and everything, and my father was in the military. He wasn’t a gentleman farmer. No, I wasn’t brought up in a little village and raised there. I was always around guns; I always had guns. " Okay. "And I come to Canada. " And what’s he tell us the first time? "Yeah, I had these guns up in Canada. Had three guns, yeah. Gee. No wonder I had these guns. I always carry guns. I carry them like I carry my cigarettes. I am used to guns. So I see this gun in the bar; I say to myself, ‘Well, David, that is a good buy. Yeah, I’ll take it for $20. ’" Okay, what did his wife say that made him get back on the witness stand and change his testimony? She says he never had any guns. "There is no gun in this house. " The officers looked through the house. There is no guns, no cleaning kits, no bullets, nothing. If there was a gun in that house -- you bring a person out from Chicago -- two people out from Chicago; you bring his brother from Canada; why wouldn’t you have brought that gun down here? Huh? So he gets back on the witness stand, and he testifies under oath right at the end, "Yes, well, let me tell you about these guns now. See, I didn’t bring them with me from Syria or Iraq. I bought them when I got to Canada. I bought them from a guy named Fred, and a guy named Mac. No, gee, I don’t know their last name. I sold them. I like guns. " Why did you sell them?" "My wife didn’t like guns. She wanted me to get the guns out of the house. " "Mr. Ismail, you knew that when you sold the guns. Why did you buy the gun in San Francisco if your wife don’t like guns?" "Well, I don’t let my wife tell me to do too much. " Anybody believe that? "Mr. Ismail, you carry a gun around like you carry a cigarette lighter. Why do you carry the clip, sir?" "Well, because it goes with the gun. " Whoever heard of buying a gun in a bar, then buying two clips with it? He had two clips with him that night. If this man so doesn’t know what he is doing when he is running, and hits that fence, and he falls, how come both clips, ladies and gentlemen, were found: the one in the gun with more bullets in it, and an extra clip? Had he reached into his pocket, or did he already have it out, ladies and gentlemen, figuring in case this one wasn't enough, he was going to use the other one? How did that other clip get right under the gun in the juniper bushes by the chain-link fence? Interesting. An amazing coincidence, ladies and gentlemen. This is such an amazing coincidence I can’t believe it. This gun here, this particular gun that he bought in a bar, just happens -- happens -- to come back to a Mr. Myers who says, "Hey, I sold it to Lazar. " And, you know, well if there is no connection with Lazar and Ismail, you know -- just one of those things. But it just so happens that his gun, that Myers says "I sold to Lazar", is sold to a man, Lazar, who lets the defendant stay at his hotel at half-price, who is head of the A. U. A. who meets with the defendant continually before he comes down here to San Jose. Just an amazing coincidence, ladies and gentlemen, that this gun somehow ended up from Myers to somebody else, and some stranger in a bar sold it to the defendant. He has got to explain -- got to explain to you -- what he was doing in San Jose. Okay. He has got to explain to you. That looks like he came down here to kill the Patriarch. "What is your story, Mr. Ismail?" "Well, I last talked to the Patriarch in February, ’75, and I was coming down here to talk to him about that. " He waits March, April, May, June, July, August, September, October, November: nine months. And now he is going to come down here to talk to the Patriarch. Doesn’t call him on the phone -- anything. Doesn’t write him a letter. Going to come down and talk to him. The A. U. A. ? He says, "I didn’t know what it was until September of 1975. " That is what he told us. October, excuse me. Well, what is that Christmas card doing from Kitty Benjamin to David Ismail? Not to David Ismail’s family, not to Mr. And Mrs. Ismail, not to family and son: to David Ismail. "Dear David, keep up the good work for the A. U. A. Love, Kitty. " He has never heard of the A. U. A. until October, ’75. He says he tried to be a member of the A. U. A. in October, ’75 but they don’t know -- he doesn’t know if they accepted him or rejected him. He doesn’t know. What sort of requirements are there to get into the A. U. A. , ladies and gentlemen? The luggage: where is the luggage? Is it at Kitty Benjamin’s house? Is it at Yule Lazar’s house? The only thing that he brings with him when he comes down to San Jose is this (indicating), as he registers for one night. "Well, Mr. Ismail," I say, "if you weren’t going to go to the Patriarch’s house that night when you came to San Jose, as you told us, why did you ask the cab driver where Woosley was?" "Well, " he says, "I felt that I was getting ripped off. The cab cost a lot of money and everything, so I was going to go there the next day. Before I went to the pizza parlor I just wanted an idea to know how much they were going to charge. " That makes sense? This guy that pays cash for everything, flies down here, stays in this motel -- hotel -- in San Francisco, $114 -- must have been a nice room if it was $114, or whatever, and he got half price -- and he is worried about getting ripped of over a few dollars. "At the Patriarch’s house", says David Ismail, "I walked up, knocked on the door, His Holiness answered, I knelt down, kissed his hand, got up, and he said, ‘David, how are you? Come on in. Let’s talk. ’ So we went inside. " "Well, Mr. Ismail, what was in the living room?" "Well, I don’t remember. " "Was there a sofa in there?" "I can’t remember. " "Can you describe the living room for me?" "I don’t remember. " He was never in that living room. The Patriarch never invited him into the house. The casings are outside. There is no light on inside the hallway. There is no light on in the living room. The angle of the bullets -- you know what happened? I’ll tell you people what happened. David Ismail went up to that house that night. The Patriarch -- and this is just my opinion on the evidence, okay? Based upon the evidence -- the Patriarch is clearing the table. Mrs. Shimun testified that he always sat at this part of the table, his back to the window. He is clearing it, going into the kitchen, back and forth, washing the dishes, and getting the coffee ready. As he is in the process of doing this -- he has already cleared it or something -- he doesn’t hear a knock at the door. He doesn’t hear the doorbell ring, because Mrs. Shimun would have heard that. He sees something. And when you look at those pictures, as Mrs. Shimun testified, you can see the outline -- there is those doors there with the window plates, and another window there -- you can see the outline if somebody is standing out there. The light is on outside, not inside. He sees somebody there, and he says, "What’s that? What’s this guy hanging around my door for? Better check this out. " So he goes to the door, and he opens the door, and at the front door is the killer, David Ismail. And David Ismail points that gun right at him and fires three times: three direct hits. He fires the first time: the bullet goes in and goes out. It is a parallel shot. As the Patriarch starts to fall he fires two additional times, and that is why the angle of the bullet is down and in. As he opens the door – as the Patriarch opens the door he sees David Ismail there, gun drawn and everything. And what is your first reaction? The natural human reaction: you step back – huh? – you step back. You don’t stand there. You are sort of shocked to see somebody with a gun. You step back. And what is his first thought? "My God! Emama! My child!" And he screams – and he is stepping back – he hits that chair, and as soon as he hits that chair and screams, "Emama! Emama!", Ismail fires: fires once, he fires twice, he fires three times. The Patriarch falls, and Ismail runs across the lawn. You saw the path – the direct path, not some confused run by somebody who does not know where he is going. He is hightailing it out of there. He runs across the lawn, across the street, and hits those junipers. He is trying to cut across to make the best angle. He doesn’t see the chain because you can’t see it at night. And he falls. And as he falls he drops the gun. He has got another clip in his hand. Why? How many people was he going to kill that night? The Patriarch? His wife? His child? Why the extra clip, huh? He falls and he is up. Now his story is that a sixty-eight year old man – you saw the Patriarch’s brother the other day when I had him stand up: same size – a sixty-eight year old man slaps him twice, knocks him to the ground, knees him, spits in his face. Anybody believe that? He tells us that he doesn’t remember about the shooting. "I blacked out. I don’t remember what happens about the shooting. " He remembers everything before, everything after, "But, gee, about that shooting I don’t remember. " Well, is this the act of an unconscious person? The way he runs: quick, fast, gets up right away and back? And where is he running? Now I know the defense attorney is going to say, "Now wait a minute, ladies and gentlemen. If this guy was planning to kill the Patriarch, why would he do it in this manner? Look at how easy it was for him to get caught. " Ladies and gentlemen, I can tell you this: were there any witnesses? Any people out in the street that night? No. It was dark. Okay. Did the man across the street – Stukan – hear anything? No. The only reason he got caught was because of two things – two flukes, ladies and gentlemen. That is why we are here. Number 1 fluke that approximately a week before some kids knocked over Mrs. Damron’s garbage, and when she heard that noise she thought it was those kids again and she was out of that house like a shot. Fluke number 1 . Okay. Suppose Mrs. Damron hadn’t had her garbage knocked over the week before, okay? She told us that is why she was out so quick. She is the only one that ran out quick. Suppose she hadn’t have had that happen, and when she does hear that noise she just walks out normally. She wouldn’t have seen the defendant. He is gone. He is down the street. Okay. Fluke number 2: the chain-link fence that he cannot see. He trips over it. It delays him a little bit, but he is up and he is gone again. Let me ask you this: if it hadn’t been for those two things, do you think he would have been caught? Once he made it back to that shopping center – back inside that pizza parlor – do you think that the police, when they get called, are going to drive to a shopping center and look all around and see who is in the shopping center, a man in a suit sitting there? Or do you just wait in a shopping center, call a cab, go back to your motel? He almost made it. Mr. Damron, driving in a van – he didn’t know who this guy was. They had to ask people, "Hey, did you see some guy running by?" "Yeah. " Half a block away from the shopping center, that is where he was. You want to believe his story? Let me ask you this: according to him, according to the witnesses – Kitty Benjamin, Yule Lazar -- doesn’t tell anybody that he is coming to see the Patriarch. Why not? Going to go see the leader of the Church – you know, if I was going to Rome, and I had relatives or friends in Rome, I would say, "Hey, I’m going to see the Pope tomorrow. " It’s human nature. It is natural to do something like this. But he doesn’t do it – at least according to him, and according to Kitty Benjamin and Yule Lazar. He doesn’t tell them about the gun – if that is, in fact, the way he got it. I ask you to use your common sense. You ‘re in America, and somebody approached you in a bar and sells you a gun like that. Don’t you say, "Hey, this is weird. Look at this. " Mr. Ismail had to tell us, ladies and gentlemen, that he wasn’t going to fly back up to Canada – that he was going to take the bus. And you know why he had to tell us that? When he got on the witness stand he had to tell us that because I very carefully asked every witness, "How did he pay for things?" "He paid cash. He paid in cash. He paid in cash. " How much money did he have on him when he was arrested? $123. He didn’t have enough for a ticket back to Canada, unless he was going to go back to where his suitcase and clothes were and get some more money. The telephone call to Australia right before he came down to kill the Patriarch: Mr. Kanna, head of the A. U. A. in Australia, hates the Patriarch, wanted him out. Just a coincidence that call was made? One final thing, ladies and gentlemen, motive. It is just not an element of the crime. He is going to tell you that presence of motive, presence of motive to kill tends to show guilt; absence of motive tends to show innocence. Was there a motive? Why did David Ismail want the Patriarch dead? Well, there is a lot of motives. There is a lot of reasons. If you want to believe David Ismail’s story, he wanted the Patriarch dead because – he didn’t say this – but the Patriarch, he felt, was responsible for his father’s death. Okay. Number 2, the Patriarch was responsible, according to David Ismail, for his quitting his job, drinking – all of that stuff – too. A couple of possibilities. The third one is the A. U. A. wanted the Patriarch out. They want their land in Syria. They need that support. They want that Church. Who do you think, ladies and gentlemen, wants to run the Church of the East? Maybe Father DeBaz.
I haven’t discussed all the instructions of the law because I don’t feel that they are relevant. I don’t think that the evidence in this case shows anything but cold-blooded, premeditated, deliberate killing. The physical evidence, the circumstantial evidence, everything in this case points to that. Mr. Pestarino, an experienced attorney, has tried to explain away the guns to you with the military background. He has got to explain that gun away. He has put in everything in this case so you will get all of these instructions. Okay. He has put in the fact that Mr. Ismail had a fever when he was fifteen years old. What does that mean? You get an instruction. He has put in the fact that he was hit on the head when he was eight years old. What does that mean? You get an instruction of law on that. That he had a car accident in 1960 – what does that mean? Do any of these stop a man from being a premeditated, deliberate killer? Uh-uh (negative). The victim spit, hit, kicked, and called his father a name. What does that mean? You get an instruction on that. Alcohol: . 08. What does that mean? You get an instruction on that. . 08: you are not even under the influence, intoxicated, and drunk. You can still drive a car at . 08. It is . 10 in California. So are we saying that a man can’t premeditate and deliberate and kill somebody if he is at . 08, but he can still drive a car? Doesn’t make sense, huh? Did this man know what he was doing? Did he show any signs of not knowing what he was doing? No. And he almost got away with it.
The hearing: he has got a bad hearing in one ear. What does that mean? Has there been one medical record presented to you in this case to document this? What did he do? He paid, ladies and gentlemen He calls Dr. Nidever. After the trial is started, for the first time Dr. Nidever receives the defendant. And what does Dr. Nidever say? "Well, in my opinion he is not a cold, premeditated murderer. " "Fine, Doctor. What is your definition of murder?" You heard how we have already talked about murder. "Well, Doctor, would this be a murder if I am driving down the street, I have a heart attack in my car, and my car runs over to the other side and kills someone?" "Yes, it would be" He doesn’t even know the definition of a murder. He is coming in here because he got a lousy $650. Is that how much he thinks a man’s life is worth? Is he going to bargain out this case for $650? "Doctor, I take it now that I told you what murder is – the unlawful killing of another human being with malice aforethought – I take it you think malice aforethought means that you need some hatred or ill will toward the person?" "Yeah. " That is not the law. He comes in here and tells us when he doesn’t even know what this is. "You gave him all of these tests, Doctor?" "Yes, I did. " "Were any of these tests designed to determine legal issues?" "No. " "Doctor, you want to get to the truth?" "Oh yes, I do. " "Did you receive any police reports in this case to hear the other side of the coin?" "No. " "Well, what do you base it on, Doctor?" "Well, on what the defendant told me and what I read in the newspapers. " Expert witness? What facts did he give you, ladies and gentlemen? Huh? Doggone right! I’m upset when a witness like Dr. Nidever domes in. You’re doggone right I’m going to yell at him. And if you expect me to do my job to represent you people and the people that reside in the County of Santa Clara, when somebody takes on that badge of expert witness – when somebody is paid $650 to come in here and con you people, you’re doggone right I’m going to take him on. It is what you pay me for. He bases his opinion on his tests, on his interview with the defendant, and on his experience, he told us. What experience does he have? Never testified in front of a jury in a criminal case before; never interviewed somebody for murder; has done maybe eight criminal cases in ten years – always after the man was sentenced, after he had been convicted of the crime – and he did the follow-up work. What experience does he have, huh? Okay. What else did he base his opinion on? And that is what we are looking for. If I come in here and tell you something – I give you my opinion – you want to know what I base it on. What else does he base it on? Well, the statement of the defendant. He believes it. The military? The guns? He doesn’t question it. Does everybody else just accept that statement like that? And finally some tests. These – he calls them the tricks of the trade. His words, exactly. "Well, what does this Rorschach mean to you. " "Well, do I have to tell, Your Honor?" Why not? Why not, huh? If we are going to be fair, I would like to know.
Dr. Rapaport: we know he got $700 so far. He hasn’t submitted another bill yet. A doctor with a lot of experience. What do you base your opinion on, Doctor? "Well, I base it on two things, Counsel. " No, no. That is not how it goes. The District Attorney – you listen to those tapes again where he is discussing this case with Mr. Pestarino. And the only reason I got those tapes – usually they furnish a written report, see, to which I am entitled. I can’t talk to the defendant – don’t know who his witnesses are. Doctors and psychologists, they are privileged; but once he takes the stand any communication that he made to the defendant I am entitled to. They come in. "Let me see your written report. " I can cross-examine them from that. Dr. Rapaport was a little smarter in this case. He didn’t make a written report. So I just asked him, as a fluke, "Well, did you give him an oral report? Was it tape recorded?" "Yeah. " Right away I am entitled to it. You heard that talk about playing a case out. "Here is what we have to do", says the doctor. Says Mr. Pestarino, who is an honorable attorney, "I’ll be able to do all of that, Doctor. " The doctor: "Okay. You sneak these things in, these inconsequential things. The DA won’t object and I will come in and really explain them away. " Are we playing some sort of game here? Are we after the truth? "Doctor, I take it many’s the time you change your opinion on the witness stand?" "Yes, Counsel, I have changed my opinion. " "Well, Doc, what if I was to tell you that Mr. Yule Lazar gave the defendant that gun, and he went there that night with that gun, given by Mr. Yule Lazar. Does that change your opinion?" "No, that wouldn’t change my opinion. No, that wouldn’t change my opinion. " What is going to change his opinion, huh? Maybe if I – well, I won’t say it. "Well, says Doc Rapaport, "the DA will always ask me," – like I did – "’Doctor, you give opinion evidence?’ ‘Yes, I do. ’ ‘And what do you base this opinion?’" Listen to that tape where he plans out the strategy. He says, "Well, what I do, I sit back a minute and I think, and I say, ‘Wait a minute, Counsel, it is here in the back of my mind. ’ Then I turn to the jury and say, ‘Experience’, and they all laugh. " And do you remember him doing that? Do you remember that? Let’s talk about experience, and what valid basis experience has in giving an opinion. You heard me ask the questions about the substantial literature in the field. It says experience is not a garbage man reading these schizophrenia tests. You heard all of those questions I asked Nidever and Dr. Rapaport. Let me ask you something that makes sense. Experience. Suppose you are doing something wrong the first time, and you keep doing it wrong. You don’t check it out – follow through to see if in fact you are right. "Doc, since 1946 – thirty years you have been testifying in the criminal courts. Have you ever done any follow-up to see if your diagnosis was right?" "No, I haven’t had time. " My God! I could – the example with the golf ball: suppose I hit with blinders on, okay? I can’t see, or I am in a fog. I can’t see where the ball is going, and I keep hitting. Am I going to get any better after I hit the five millionth ball than after I hit the first ball if I don’t see where it goes and make any corrections? Of course not! Do a little experiment when you go home sometime. And the experiment is based on a study that was done one time to show that experience is nothing. When you go home sometime, do this: without looking at a ruler – you can’t look at a ruler – take a piece of paper and draw a line twenty inches long. Okay? Without looking at a ruler, draw that line again. Draw that line again. Draw that line again, and try to make it twenty inches long. Okay. You are not going to improve. You are not going to know whether to go further or less until you have actually seen a line drawn that is twenty inches long. You compare it with that, and then you improve. Try it sometime when you go home. Ladies and gentlemen, once again, just another comment on Doc Rapaport. No police report; doesn’t contact me and say, Hey, I would like to look at some of these reports so I can get both sides of the question. " Just doesn’t do it. Takes the defendant’s story, told to him in a four-hour interview in jail.
Ladies and Gentlemen, I have talked to you for two hours – gotten a little bit excited; raised my voice. I’m sorry. It is just the way that I am. Just be fair, huh? Listen to all of the instructions. Don’t say, "Well, I feel sorry for David Ismail, so I am going to do this; or I feel sorry for Mr. Pestarino; I feel sorry for the DA. " We don’t want any sympathy. We want a fair and impartial juror. Listen to all of the instructions. You know what the evidence is. Decide what it is and just reach a fair verdict. That is all we want in this case. Okay. Thank you.
ARGUMENT ON BEHALF OF THE DEFENDANT
BY Mr. PESTARINO
May it please the court: Counsel, ladies and gentlemen of the jury, there is quite a bit, I guess, that I have to cover. I hope you will give me the same courtesy that you have given Mr. Robinson who, I think, made a very fine summation to you. And I compliment him. And I hope that I can do as well. You know, sometimes you can over-simplify things. You can say this is what a person does, and therefore that is what he is. And you can’t even say that with your own children, because they do so many things; and every once in a while they do some crazy thing, and so you can’t really judge them all of the time by what they do, or even by what they say. It is a strange thing with people. I talked to one of my clients one time, and I said, "Gee, how are things going?" And he says, "Well, not so good. " And I said, "Gee, you look happy. " "Well, "he said, "most of us walk around like icebergs. You only see so much of what you see, and the rest is under water. " You don’t see the trials and tribulations, and the sufferings that people go through in ordinary day-to-day life, and much less in a court of law. For instance, you can’t begin to understand what Mr. Ismail has gone through. And besides worrying about his case, I have my own personal problems, and I seem happy and jovial, and I don’t seem nervous. So how do you tell? Sometimes it is difficult. And I think it is oversimplifying things to say, "This man is lying. You can’t believe him. And this man is telling the truth. I believe him. " And that brings up another subject: all of us have talked to you about not judging this case on the basis of sympathy, passion, or prejudice, because you are judges. And then Mr. Robinson gets up here and he makes a very nice summation. And he is working you up emotionally, whether you know it or not. And probably I will do the same thing, I don’t know. That is our respective personalities, and that is the way we do things. And I don’t see anything wrong with them. But in the last analysis, what I am trying to say is, "You people look at the evidence. You fit it in, put it together, and, okay, use your common sense, certainly. " Now with those few things – we have had so much in this trial, frankly, that it is hard to get down – right down to the nitty-gritty, or to the meat of this issue. I think, first, one of the issues is this: Can you, as twelve or fourteen people, in good conscience give Mr. Ismail, a purported killer and a foreigner and an Assyrian, a fair trial? That is what I want. That is what he wants. That is what the DA wants. And when I talk about that, I certainly have in mind the death of the Patriarch and, respectfully so, the sufferings of his family – respectfully so – and what will happen to his children, who are very small, and his wife, still young. And also I have in mind what will happen to the Assyrian people, their religion, and their beliefs. Above all, their unity under Christ or under God which, to me, is important. And so I say I am deeply sorry for these people. I am deeply sorry for the Patriarch. And I am deeply sorry that I had to bring in some testimony and some things that might show him to be – not a bad man, by all means, but a human being, subject to the trials and tribulations of his office, keeping a firm hand over his people, and still being a religious leader. And so, ladies and gentlemen, to all of these people I can say on behalf of David Ismail and myself, "We are sorry. " But it has happened. And now we are concerned that David Ismail, who is an Assyrian and who is entitled to a fair trial – no more than what you would want your relatives to have, or friends, or anybody else, whether they are foreign or not.
Now with that opening remark let me try to put together some of the evidence as I see it. In the first place, the question is: is David Ismail lying to you? All right, did he go to the house on Woosley Avenue? Of course he did. Did he pull the trigger on this weapon? Of course he did. I don’t see who else could have done it. Did he pull the trigger with premeditation and deliberation? I don’t think so. And I will go into the law a little bit later. He went over there on the night of November the 6th. And there is some photographs which show one bullet hole in the wall. That is No. 6. I had these all lined up. And there are other photographs which show cartridge casings, and in my judgment, here they are. And I’d like you to look at these when you are in the jury room and see if you come to the same conclusion I did: that these cartridge casings, while found outside, were found pretty close to the front door. Here is No. 4, right on the steps. Here is No. 3, and here is No. 3 again, right outside. And there is No. 3 again. So you note there is one here, and right by the steps as you enter the front door in this particular house. Now when you consider that this weapon is automatic, and when you consider the testimony of the expert that by its own power it ejects a shell at least ten feet out behind him, or over his shoulder, these photos would indicate to me that this man could not have walked right up to the front door and shot the Patriarch at the front door, or inside the front door, because those shells would have been out more toward the sidewalk. Conversely, he must have been inside. Let me show you another photo, and the reason why I brought it out – the round one. You know which one (to clerk). Emama said – excuse me, Mrs. Shimun said that she didn’t believe that her husband knew David or had seen him, and I brought this photograph that was taken in 1962 in Damascus which shows the Patriarch, David Ismail, and his wife. I have some correspondence in evidence – and the translation is there too – that show that the Patriarch had communicated with not only David, but with David’s father recently. And Emama, or Mrs. Shimun, testifies that David had phoned there and had told her, or told the Patriarch, that he was all in favor of the Patriarch. And you go back further. I suppose David Ismail knew the Patriarch since he was a child, and so did his brothers, because there is no question about it from the evidence that Malik Yacoub – or however you say it – was a close friend of the Patriarch’s and a very staunch supporter. And so, it seems to me – maybe I am being illogical, but it seems to me, on this particular night, November the 6th, when David Ismail decided to go visit the Patriarch, he either knocked on the door or rang the doorbell. And it seems to me that the Patriarch turned the outside lights on and saw that it was David Ismail, whom he hadn’t seen for a while, a very close family friend, and opened the door and said all of the things that David Ismail testified to: "Come on in, my son", or "I’m glad to see you", or whatever he said. And that David Ismail kneeled, much as is shown in this picture here, and kissed his hand, and got up; and the Patriarch started to invite him into the living room, and David said, "I got something to say and I am a little bit nervous," that is what he was thinking,, "and I want to get it over with. " And he says, "I just stopped in to tell you that you have caused some trouble in the Church, and don’t try to get back as Patriarch. " And it seems to me that what happened at that time was that the Patriarch did do the things that he said he did. And I corroborated it pretty thoroughly, not for the purposes of trying to destroy his character, but to show that that peculiar thing could have happened, and probably did happen, because it happened to other people subsequently. See? Probably did. Now if I had David Ismail tell you these things, and you’d say, "Here is a man of God – here is the Patriarch. That man couldn’t have done these things to him. " And you’d say David Ismail was lying. But then when you have a person like Ninos Michael, the man that went with the Patriarch to Seattle and finally married him – a little man, probably a kind man, dedicated man – said the Patriarch almost struck him, then it lends a little bit more credibility to David’s story. And then when you have a man like DeBaz say, "Yeah, he struck me with an envelope twice in the forehead, and he shouted at me, and he called me part of the very same name that he called David", I think it lends some credibility to David’s story. Then you go a step further, and you have Sam Andrews, who says on two occasions he saw the Patriarch in a rage, or – pardon me, not in a rage, but angry – and that he had screamed at him and shouted a name similar to the one he called David. Where did David get all of these things? Did he manufacture that out of thin air: that the Patriarch was like this? Because don’t you get the impression from the history that this was a very sacred man? It was like Christ walking on earth to the Assyrian people. And they came and brought their sick, and he was to heal them like Christ did. And they took holy water back with them. And so all the past history, as far as David Ismail was concerned, was concerned with a man that was holy indeed, in all aspects. And for David to come up with a story like this would be impossible. There must be some credibility to it. And these things must have happened. And one of these shell casings was crushed. It’s in evidence. And if it is – I think it was the farthest one away – it was crushed. And if it were crushed, somebody could have sent it a little bit farther away. Also, you will note from the diagram, as Mr. Robinson told you, that there was twenty-five degree angles. Purportedly as the man went down he was being shot, because the angles from the bullets could be measured. But I don’t know how that happened, but I submit that this is also very probably: Here is People’s Exhibit J, 10-N. No. 6 is a bullet mark in the wall, and that is quite a way above the stair casing. And this is the bullet that was supposed to have gone through him – through the Patriarch into the wall. Now if they were standing face to face that wouldn’t have gone that high, unless it hit a bone fragment; and even then it would have gone up, in all probability. So to me – I think you could interpret this to mean that maybe David was down; and when he was down, the Patriarch was over him and he shot him. I don’t know. I wasn’t there. But neither was Mr. Robinson. You talk about credibility. Something like this must have happened. And there is another aspect. You remember this lady that heard what she thought were garbage cans being tipped, where actually she heard gun shots. And I suppose they were kind of muffled, because the person directly across the street, whose window was open, didn’t hear any shots. Again, that is something to show that this man was probably in the house when he shot the Patriarch, not outside. And I think it is just like he says: the Patriarch was glad to see him, says "come on in", and started to usher him in; and he says, "No – well – I got something to tell you. " And that is when this happened.
Now Emama, or Mrs. Shimun, testified that a chair had moved, and that she had heard some screaming just before the shots. How close – how much she could hear I don’t know. There is no doubt that there was some shots. And I suppose there is no doubt that he screamed. And there is a chair, and I don’t know whether that was moved in the scuffle or not. Who knows? There are only two people there. One is dead.
Now we are talking about premeditation, deliberation, malice aforethought; and I submit to you that that doesn’t sound to me like premeditation or malice or deliberation. And, of course I will get back to that more, and I hope that I can convince you of that later on. Now, what happened after that is another strange thing. Here is a man that runs down the street. He trips over the fence, and the gun and two clips are right there in the bushes; and it is in one of these photos. And here it is (indicating), and you can see that gun and two magazines. Am I holding it right? Yeah. And here is another photo of it. The strange thing to me about this picture is two things. I hope this makes sense. One is: the gun and two magazines were there. Why two magazines? Did he want to be sure to really kill this Patriarch, and take two clips, when he purportedly knew about guns and could use them very well? And more important, why was this weapon still in a position to be fired? As Sergeant Parrott said, when he found it, this weapon was not on safety. There was a bullet in the chamber, and all he had to do was pull the trigger. Now if a person is going to kill somebody or shoot a gun, after they are through shooting it they either take the magazine out and clear the chamber, or they put it on safety. And he did neither. The clip was in the gun; or there was a bullet in the gun and the clips were found. Another interesting thing about this gun is: nobody tested it for fingerprints to see if Lazar'’ fingerprints were on here. Because if he got it from Lazar it could have been a bet that maybe his, Lazar'’, fingerprints were on it. If I pass this weapon to you, my fingerprints are on it. I don'’ know. Think about that. It isn't just a simplified case, and I hope we are not getting confused. The other thing is: this man runs to the pizza parlor, and he sits there and is having a beer when he is arrested. Sound like a premeditated killer? Appear the way to commit a crime? Well, you got to think about it a little bit and give the police some credit. If someone were killed there, the police would have a network around there a mile wide. They would have checked every thing: taxicab companies and everything. They would have talked to people in the pizza parlor and anyplace. And here is a man that runs to a pizza parlor from which he came, and was sitting there having a beer when the police arrested him, and he says he doesn’t remember. Well, I suppose – I know that – if some of you have seen it, I have seen it – people that have done things that they don’t remember. And I don’t know about a killing, but I have seen people in the army that have gone through battles and don’t ever remember. Their mind – something funny happens to the mind. Because I have seen some of these things, I said I better investigate this case a little closer. And so I started to have Joe Hernandez, my regular friend here, check into this, unbeknownst to Ismail, and come up with these things that we have learned. And then I decided: well, maybe it is time to get somebody that knows something about the mind, because maybe you and I can sit and talk to a person and everything might look normal, but maybe it isn't. And so that is why I called Dr. Rapaport. And Dr. Rapaport talked to me, and he talked to me at length. And Dr. Rapaport – and you saw him on the witness stand – you don’t tell him what you want. And I tell you right now, I think I would be the last person in the world that would try to cook up a defense here. You don’t tell him what you want; he tells you. He even tells you how to try a case, because he has been in court so many times – not only for the defense; for the prosecution locally here, the District Attorney’s office. He has testified for them. The judges have called upon him to testify. He has testified in Federal and State Court all over – at least the Mid-west and the West – probably the United States. He seems to me like a humane sort of person that has dealt with these psychiatric problems for many years. He was in the Army; in the Navy. He was head of Mendocino State Hospital for the criminally insane. He is head of Agnews for many years – state hospital for the mentally ill. He was director of the State Office of Mental Hygiene – the whole state. He has seen people from coast to coast. He has talked to thousands of people. He has heard about every story there is. And I asked him to see Mr. Ismail to see what he thinks. And he told him; and he told you. And so when I went up to him to talk about this; and our recording is in evidence, and if you feel like listening to the recording listen to all of it. The first part is, as counsel said: The doctor said, "You got to ask me a few innocuous questions, then I will pick it up from there. And that is the way we proceed. " I don’t tell the Doctor how to testify. I generally ask him, "Doctor, what kind of questions do you want me to ask? Because I am out of your profession, and that you will be comfortable with. " And that is the way that it starts. But you listen, and there is not a thing in this tape that is cooked up or prepared. It is a conversation between he and I. And I gave that tape to the District Attorney, and he has had ample time to listen to it. And in one area it is a little bit vague, but if there is any question in your mind if you listen to it, please listen to it over again and see if you can get the true meaning; because it says: when the question is asked, "Would you change your mind if you knew that that gun was obtained from Lazar? Would that show premeditation?" And he goes along and says, "You’d have to do more than that to show premeditation", or something to that effect. But it is a little bit hazy in there, and you have to listen to it carefully. But his tape was off-the-cuff to me – extemporaneous – and he told me everything that he said in court, and more so. And if you want to hear his testimony again, listen to it, because there it is preserved for you. Now I’ll get back to Doctor Rapaport again. I am kind of skipping around. Oh yeah, we talked about no police reports. No police reports. Well, when you heard Dr. Nidever, and you heard Dr. Rapaport, you heard them say, "We assume that this man killed him. " We assumed that. What is the use of going to the police reports? What I am trying to find out now is his state of mind. "You have told me everything that you know about the case?" "I assume that you have read the police reports and are actually familiar with the case. " Why do I have to read a lot of police reports? All they are going to say is what was testified to here in court, and we assume that this man was killed by my client. "Now take it from there, Doctor. What was his state of mind?" "Well," the doctor says, "I’ll have to talk to him. I want to interview him. " Dr. Nidever said, "I’ll have to see him and spend time with him. " And they both did, and they both came to the conclusion that they did come to. There is another important thing I ought to mention to you. This is a certified copy in evidence, written in Assyrian and translated here. I’d like you to look at that. And that is from Syria, and it is dated 2-22-76. And I think it says: Regarding David Ismail, no prior record of arrest within the last three months, or for the last three months or so. And there it is. It is an official document, and it is in the evidence, so it is reliable. So you are not talking about a man that is a killer.
We are talking about the gun, and, frankly, I don’t know about the gun. I wish I were as positive as Mr. Robinson; and even if I were, knowing all the facts that I know and what I am going to suggest to you, it wouldn’t bother me too much, although it has quite a bit of influence. Ron Myers was asked the question when he gave his name and address: "Are you an Assyrian?" And he says, "Huh?" Says, "No, I am not an Assyrian. I was born in Berkeley. " And then we went on to the question about the gun, and he said, "A week after I bought the service station from Lazar, Lazar told me I ought to have a gun, because this is kind of a bad neighborhood. And so he and I went to the gun store and we looked at this gun; and I bought it for $169, and I sold it to him at a big profit of two hundred and some dollars. " All right. He bought the gun at the store, Lazar saw it and it was a nice gun, and Ron Myers made a nice profit. Ron Myers, I believe, testified that he bought the service station in December. I don’t know; you remember better than I do. The exhibit here shows that the gun was purchased – see if I can read it – December the 24th, 1969 – when the gun was purchased. And you heard the person from the gun store testify; and there is his records. The service station was sold on February the 6th, 1970, and here is the record of that. Ron Myers testifies that Lazar sold him that service station for $600 – made some documentation of that effect, probably a promissory note – and then decided to buy the gun. And then he immediately deducted two hundred and some dollars from the $600. What are the facts? First of all, when Ron Myers was testifying he thought this was a deal between the two of them – that Lazar had gone out to find a buyer, and he wanted to get rid of the service station, and he kind of gypped – Lazar kind of gypped Myers – was the impression I got; and then we look at the records, and we talked to Mr. Whatever-his-name-was from the Union, and he says, "No. " He says "There was no transaction between the two of them. Here is the transaction. This is the inventory, and we bought it back from Lazar and then we sold it. We took the inventory, bought it from Lazar, and on the same day sold it to Myers for $4410. 30; and he gave us probably a thousand dollars down. " And counsel talked about eighty percent—or seventy percent of the inventory when Lazar testified on the witness stand. And I submit to you that it is very probable that Lazar didn’t own all of the inventory, and had owned maybe seventy or eighty percent of it, and Shell must have – or Union must have given him credit for that, or must have charged him for that, or must have charged him for that. Anyway, there was no testimony either way that Ron Myers bought any Coke machines, any cigarette machines, any tools from Lazar. All the essential tools to operate a service station were there. And, besides that, Myers was a diesel mechanic and presumably must have had his own tools – a lot of them. Now six years later – or five years later the police go over to Myers and say, "Hey, we are investigating some kind of crime. Did you have a gun?" And he says, "Yeah, and I sold it to Lazar. " And now the gun turns up here. I wonder if Myers sold it to somebody else and failed to register it. Maybe. Maybe not. One thing for sure: Lazar testifies before the Grand Jury under oath. Number one: he never had a gun, and certainly never had this gun. And he said the same thing here; and isn't a witness presumed to speak the truth? Let me put it another way: you don’t disbelieve me unless you have some reason to disbelieve me, do you? Are you disbelieving Lazar because he is an Assyrian? Because David Ismail was registered at his hotel for half-price? Isn’t his word entitled to every bit as much weight as Ron Myers? But Ron Myers was mistaken about some things, when Lazar was a meticulous bookkeeper. Now it is very easy to say, "Oh, yeah, sure. This is what happened. " How do you know it happened? It would be an awful thing if it happened to you sometime – something like this -- and you say on the witness stand in court, and to the police, "Not mine. I never owned the gun – never had a gun. "Well, you’re Italian – you’re Spanish – you had somebody in your home at the time, didn’t you?" Or, "You owned a service station, you sold the service station, and he says he sold you the gun. " And I say, "Well, I didn’t buy the gun. " So you say, "Well, I’m not going to believe you because this gun was turned up in a murder. " Now what about the story of buying it in a bar? I don’t know. I can’t say that he bought the gun at a bar but I can’t say that he didn’t buy the gun at a bar. You know as well as I know that people will sell anything under given circumstances. If a person is an alcoholic and they need a drink, to them the drink is the most important thing in the world at the moment. If a person is on heroin or narcotics their whole life is governed by that, and until they get the narcotics they need, they would do anything virtually. And that is why there is a lot of theft and a lot of stolen property; and that is why you have a lot of flea markets and so forth. It is all cheap stuff. It’s stolen. Now, can you say, beyond and to moral certainty, using your own common sense if you will, that Lazar is lying, and therefore David Ismail is lying, in view of what you know already? All right. Let’s take the other aspect of it. Suppose he is lying. Did he go over there to kill this man with this gun? Maybe. But if he did, he did it, in my opinion, in a very clumsy way. First of all he comes in from Canada. They pick him up at the airport. A number of people have seen him. Kitty – Kitty Benjamin has seen him; registered him under the name of David Benjamin; paid the motel fare. Crowley saw him. Mr. Crowley said he had some suitcases and some luggage. David said he had a suitcase and luggage that he rolled up – the plastic cover for his suits – and put them in the big suitcase, or the bigger one, and left them there. Crowley said he received a mysterious phone call. Somebody asked for a David Ismail, and he said, "There is no David Ismail", and that person: "Well, let me – is there an Assyrian there, or somebody that is a foreigner?" "Yeah. " "Well, let me speak to him. " And that was Yule Lazar spoke to him. And Yule Lazar said, "I can’t pick you up tonight. I’m busy, but I will send my brother after you. " So we had the brother come in, and the brother said, "Yeah, I picked him up in a government car. Here is the bill. Here is the work I did on the car. I was road testing. While I road tested it, me and this other fellow that works in the station stopped at the Sunset Motel, picked him up, took him to my brother’s place, and then I left. " And then Yule took him home, and they had dinner twice, and Yule is a member of the A. U. A. – or president – and therefore there is one great conspiracy to us to get this gun and have David go ahead and kill the Patriarch. Isn’t that what they are trying to say? How about the proof? A little bit short. Now David further met Sam Lazar, the person I accidentally called on the witness stand – and believe me, it was an accident. What I meant to call was Sam Andrews, but I called Sam Lazar instead. I guess the name "Lazar" was going through my head. And so I asked him a couple of questions, and then the District Attorney picked it up and said, "What were you talking about?" And he said, "We were talking about going into business. " So David talked about the business to Sam Lazar, briefly to Yule Lazar, I think, briefly to Kitty. But probably he came down here to kind of get away from things – to look into a business; see what the climate was like. And then he is seen at dinner, stops at the bus station and buys a bottle, and he comes to San Jose; and all of the time he is registering under his right name, you know, and giving his address as Canada, right where he lives. And he has got in there a one-way ticket, or receipt for a one-way ticket, and he has got two notebooks in there, and most of the time he is wearing this suit which stands out like a neon sign. And he comes down here and he registers. He says he takes a taxi around the plaza there, and that this fellow took him for a ride and charged him $8. So he was familiar with the plaza where the pizza parlor was located. And then he went to the Oasis Motel; and he said he registered under his right name, didn’t he? Gave his address, Canada; wore that suit; asked for a place to eat; drank quite a bit of liquor – you will see it in the photos: a bottle, a fifth – pint bottle – with about that much left (indicating) – had a couple of double shots where he thought he could eat; found out that the restaurant had been closed; came back and called this person – asked this lady to call a taxi for him. Mr. Beaman arrived. This killer sits in the front seat, and he talks with Mr. Beaman; and he asks Mr. Beaman where Woosley Street is after he took him to the pizza parlor. Then he walks to Woosley Street, and he is armed with two clips and a twenty-two. So he is going over there – all these things happening – to kill somebody? And you don’t have to be very intelligent to know that you can’t get away with something like that. And you can’t get away from it, because, regardless of what the District Attorney will say, the police have a very good organization, and you can see the investigation they have done in this case. That is the killer – cold-blooded, premeditated, deliberate killer? What about the liquor? Anybody ever say he was drunk? Does anybody really know? Mr. Inami – or whatever his name was – from the criminal lab – and his chart is in evidence where he has zero to point zero eight, zero eight being the time—that was the blood alcohol at the time. They took it – I think it was around – somewhere around 8:00 that evening. And I asked him a hypothetical question. I says, "Suppose a person starts to drink at 5:30, and he is arrested roughly around 6:30, and blood is taken at 8:30, it comes out at point zero eight. How many drinks of bar whiskey should he have in him?" And he figured it out, and he said, "Seven. " Now there could have been more, because, allowing for dissipation, maybe he could have drank more. But anyway, seven drinks of whiskey in a period from 5:30 to 6:30 to me is pretty lot of whiskey to drink. Seven shots. Try it sometime, even if you are a good drinker. Now I’m not trying to say he was drunk, and I have never based the defense of this case on the fact that he was drunk; but that is one of the factors that I gave Dr. Rapaport, and Rapaport has had extensive training with people who drink – seen a lot of them – and he says, "Some people it affects; some people it doesn’t. " And the criminologist agreed with me, and he said, "Yeah, I guess it is a matter of tolerance. " And I think we all know that. But now you get a little bit of a picture of what I am trying to say. I am not talking about premeditation. Now you have the alcohol. What else did you learn about this man? Oh yeah, we learned: as a child he hit his head, and then later on he was in a British hospital; and before being hospitalized he was in a certain grade at school, and after his hospitalization they put him back, and he had difficulty remembering. And then, as a young man he was in a car accident. Then he had amnesia for a while. And you learned that he always carried guns in Syria; he carried them in Canada and the United States; and that is all backed up by witnesses. Are all of those people lying? Friends of his, Assyrians, are going to stick together? They are going to come into court here; they are going to lie, no matter what it is? Common sense, okay? Take a look at it. What reason do they have to lie? Are they conspirators? Are they involved with him in this? Well how about this young fellow, Younan – Paul Younan? He says that the man always carried guns, and he knew him since Paul was a child – that he had lived with him in Canada – and he said he had guns and carried them. And did somebody say – Sam Andrews one time told him not to carry a gun in the United States. It was against the law. And he saw him with a gun. And so you put these things together and you say "Hey, what kind of a man is this man?" And I say: as a lawyer, I really don’t know. I don’t think that the District Attorney knows either. And so I have gotten a couple professional people to tell me what kind of man he was, and they have told you what kind of a man he is, and that is the kind of a man that you are dealing with. And there is no question about it in my mind in the world.
You know, you can’t just look at the laws, and we are not all held to the same standards in everything; and very frequently judges will say looking at the law alone is no good. You got to look at the person you are dealing with, and look at the law too. So that is the kind of person you are looking at. And to reinforce my thing, and Dr. Rapaport’s, and get something a little bit more positive, at the last minute I called in Dr. Nidever. Now I paid him $640 or fifty dollars, and we paid Dr. Rapaport seven hundred and some dollars, and they are going to send me another bill, and I am going to pay that too. Now, you saw Dr. Nidever on the stand. Who cares whether he knows anything about murders or courtroom procedures? He is a psychologist. What he is doing is looking into the mind of somebody. That is what he is doing. That is what he is trained to do. In over ten years of experience he has handled all kinds of patients who come to him with everything from domestic problems to suicide, and undoubtedly he has helped them. And he uses these tests that I don’t know anything about, but apparently those tests are reliable. They are used by other psychologists in the field, and they are used to aid not only psychiatrists, but they are used to aid neurologists, M. D. ’s, that look into the brain. And Dr. Nidever gets the history of this man, most of which is backed up by other people. It is not just his word. And he says, "Yeah, these are the things that I found from the tests: there is some brain impairment – not big, but add alcohol to it – it is the worst thing you can do. " And isn’t that backed up by witnesses who said this man couldn’t remember certain things that happened? He couldn’t remember. You know, you can get drunk, I suppose, and still you might have some blank spots here and there; but you don’t drive like Paul Younan said that David had driven in Canada and not remember a thing. And you don’t throw your sister-in-law out of the house and not even remember it, even if you are drinking heavily. There has got to be something wrong in his brain, because under normal situations it is fine. But given this person, given his brain, given this alcohol, given the problem he had before: you have David Ismail, son of Malik Yacoub, a man who loved his father, who loved his religion, who was hurt by the Patriarch, who suffered because of the Patriarch’s marriage, who reconciled himself, as he said on the witness stand, "This is a whole new generation. I’ll support you" – went over to see the Patriarch and said, "Hey, look. I’m for you, but don’t try to get back, because the Church is split apart now. " And you know that that is true because you heard from some of the witnesses here, and you can see how this Church is split apart. When you hear young Dennis Lazar – there must be a million of them – and you heard Rev. DeBaz, you know that there has got to be a split in the church. And that is what David was talking about: "Don’t come back. This is the only thing we have to keep us together, really. " "Us people that belong to the Church of the East, let’s get a new Patriarch. Let’s close ranks. Let’s worship God as my father taught me to, and as I did. " And so you got all of these things mixed up into one – into one person. And you are talking about that person: what he did that night and under these peculiar circumstances, dressed the way he was, seeing the people he saw, dressed in a bright colored suit, carrying a gun as he carried it many times, doing the things that he said he did. And to me it is very believable, now that I know the facts; and I think it is to you, at least to the effect that this is no cold-blooded killer, any way you look at it.
It is difficult to remember all of the things that I should talk to you about; and I only have this one opportunity to speak with you. I want to try to hurry it through now. I’d like to talk about Mr. Kelaita for a moment. I think he is a fine man. I think he is a dedicated man. A lot of what he testified to is what the Patriarch had told him about Fr. DeBaz and other people, and of course there is no way for me to cross-examine the Patriarch, and therefore you have to kind of weigh and consider his testimony. It seems to me it is very easy to say something about an individual – priest or anybody – and say anything you want to say about them: they embezzle money, they misused money, that he was not a dedicated man. But in our society at least, I think you have learned something from being in court that we give everybody a chance to tell their side; and as far as I am concerned, Fr. DeBaz was assassinated, and there is no way to ever cross-examine the person that attacked him. I don’t know what you think about Fr. DeBaz, but, again, you people are people that lived a little while. You have seen a few things. You had your share of troubles. You have lived. So has Fr. DeBaz. No doubt he has had his troubles. No doubt he had to work hard. No doubt he performed all of the duties of a priest in connection with his church. He never left his parish without having someone in attendance; and when he did leave, he left to administer the sacraments to other people;; and I don’t know what you think, but I think he is a very holy man, and a very good man, and a very dedicated man. And I can’t imagine some of the things that Dennis Lazar said about him. When you listen to Lazar’s reasons for implicating him in this murder, it seems they were very nebulous. And I guess you can say that all Assyrians are involved in this murder, because they are a closely knit people, if for no other reason than they don’t have a country of their own. They are a deeply religious people. They are good people. They are uneducated – most of them. The newer ones are becoming educated. The older ones: dedicated to the Patriarch, to their religion. And those are the people to whom Fr. DeBaz ministered. For some reason or another he was transferred to Michigan after he had furnished a house here, and he felt bad about it because – it’s like anybody else that tries to do a job, and you do the best that you know how, and then you are transferred – put out in the boondocks somewhere, a smaller parish of about six families. And even then he said, "I made more money in Flint, Michigan, than I did anywhere else, because I had a very good job -- $6 an hour or so – with General Motors. " He worked as a deputy sheriff, which was interesting to me, for two years; and he worked for the rehabilitation program with alcoholics, retarded people, and so forth. And he said, "I couldn’t turn people away. If I had to bury somebody I couldn’t ask for money, or I couldn’t ask him if he was Assyrian, or I had to baptize somebody – the same thing. " And he says, "As far as me taking money, you have all of the books. I don’t have anything to do with money. I’m paid a salary of $400 a month – wife and children – given a house. I have to pay $138 for heat. " And he says, "I went there because I was ordered there, and even then I didn’t hold any personal animosity against this Patriarch. I didn’t like some of the things he did, but he was the Patriarch, and I was his servant, and I went where he ordered me to go. " And that is the kind of man he is until the Patriarch got married, and then he said, "It was wrong. He split the church. No Patriarch had ever married before. There is no law in the archives of the Church that says that a Patriarch can marry, and he split our religion. " And he says, "From then on he was not my Patriarch. " And yet he adds, "The Lord will take care of him. " And if you know people at all – if you can evaluate them and praise them – I think that he is a very fine man. And Dennis Lazar, as a young man very much interested in the church, offered his services to the police and the District Attorney the moment he knew that it was murder, anxious to help out as a prosecuting attorney, I suppose, not too familiar with canon law, but very anxious to criticize, and not really knowing DeBaz as a man – as an individual. And you can compare both of them and draw whatever conclusion you want from their testimony.
Mr. Kelaita, again: a fine person. And Fr. Birnie, like Fr. Michael, dedicated people, anxious to help the Patriarch, anxious to serve because that is their life and that is what they did. A fair person. He doesn’t know, of course, but Father Ninos Michael testifies here that he was shocked when he was ordered to marry the Patriarch. Fr. Birnie doesn’t know that the Patriarch screamed at Fr. Michael at the airport and in the motel. And Fr. Michael listened to the Patriarch, and was convinced, after listening to him, that there was no law against the Patriarch getting married, and decided to go along with it – decided to marry him, decided to help him, and thought perhaps it was excitement; yet underneath it all I get the impression that he was very disappointed and hurt.
So let’s turn to San Andrews. What kind of a man do you think he is? I think he is anxious to help the Assyrian people in any way that he can. That is my impression of Sam Andrews. That man will call a spade a spade any time. You have heard talk about the A. U. A. , and you have heard Lazar was the president of the A. U. A. locally. Sam Andrews was an executive officer of the A. U. A. and the A. U. A. promulgated some kind of conspiracy – or some of its members – to kill the Patriarch because they were interested in getting land in Iraq – Iran. The Patriarch said, "Live in peace wherever you are, and get along with the government. " So they had to do away with the Patriarch – do away with his influence. And that is your motive – motive for killing. What proof do you have? You had a few people talk about the A. U. A. They were not too informed. You had Sam Andrews, and you heard what the A. U. A. does through the United Nations. It is a peaceful organization – certified copies of the constitution and bylaws. It is a universal – almost universal association, designed to help people who don’t have a country; to help them wherever they are, either in the form of food and clothing – to help refugees and to generally take care of the welfare of their people. And he said, "The Church of the East is just one of the churches. Why do we worry about that? Sure it has some influence, but there is a Catholic Church to which Assyrians belong, Presbyterian Church to which Assyrians belong, and there are other churches or denominations. We don’t worry too much about the Church of the East because – at least I don’t. I have my own religion. My religion is to serve God my own way. " You can’t quarrel with that too much. But he said, "I’m interested, and our organization has always been interested, in helping the Assyrian people. And I was with Malik Yacoub in the Middle East. I worked with him. I was his aide. I worked with Zaia, and we tried to help the Assyrian people wherever we could. " And they haven’t been able to produce one bad thing about them except this newspaper article that is anonymous. And that is a good trial to have to attend: a trial by newspaper. So you read an article in the newspaper where the editor doesn’t even have the guts to put his name on the article, and you ask a man, "Well, didn’t you do this like this article says?" giving the inference that the newspaper is right and he is a liar. He is under oath. The newspaper is a newspaper of some publication with no name. And so we held a court somewhere in the Midwest, and we condemned these vile people for doing the vile things that they had done. Evidence? The kind of evidence you want to hear as judges? Motive? The kind of motive you want of a crime?.
Let’s talk about Peggy for a minute. Two of the best witnesses that I have seen in this case, aside from Father DeBaz, were the two constables from Canada, the sergeant and the other one. No question in my mind that those people were telling the truth all of the way down the line, good and bad. They are fine police officers if I ever saw a police officer; the kind of people you would be proud to have in your community. And they did a good job, considering the time that they had – the investigation that they made – but there is two things that turned up – maybe one thing, and maybe I don’t remember, but seemed to me like David Ismail had no criminal record in Canada. And I think they said Zaia didn’t either. And they did corroborate the fact that David Ismail is the heir to some property in Iraq: his father’s estate. And maybe he had that money in mind too when he came to California to look for a business, because he really didn’t have the cash. But I doubt very much if you need very much cash if you are an Assyrian and have to travel. I think wherever Assyrians are you get a pretty good deal. You are welcome to their home. You eat their food, and they treat you like brothers and sisters. And I think that they can travel anywhere, and wherever there is an Assyrian, there is a home; and there are people that will loan you money – will help you. Now that is my impression in seeing these people. But, anyway, getting back to Peggy, when they talked to her she had injured her hand. We didn’t learn from the evidence – and I didn’t think of asking – when she injured her hand: before David had left, or after he had left Canada. It was shortly, it appeared to me, before the shooting anyway. And she wasn’t working. She is a woman that had worked. She obviously, as much as she could, tried to protect David, I think. They asked her a lot of questions about David, and her answers were pretty good. Now maybe she was telling the truth; maybe she was trying to protect her husband. But you haven’t seen Peggy, and for one good reason: we didn’t bring her down here. The gun situation: she said there were no guns, and obviously there were no guns in the house at that time. But David’s testimony fits. He named the person to whom he gave the gun before he came to the United States -- at least for safe-keeping. They could have checked on that, even at this late date, with a telephone call to Canada. That is all it takes. A couple of other things: David told you of some phone calls. You have a record of some phone calls here. He said he was calling his niece in Canada. There is a four-minute phone call and an eleven-minute phone call to, pardon me, Australia – Sydney. And he said he called up where she had lived and spoke to the person that now lived there, and this person had told them that she moved to another part of the island. So he called up this fellow, Kanna, and spoke to him for eleven minutes. And the bill is here. And he wanted to talk to his niece. Now how do you bring the A. U. A. from Canada, from Australia, from Michigan, San Francisco, into this case? Tell me. Motive? The A. U. A. wants to kill somebody when it is a dedicated organization? Could be you could find some radicals in there. They haven’t shown any yet. So I suggest to you that you take a good look at the motive and see what you think. One-other thing: Mr. Beaman, the taxicab driver that took David from the Oasis Motel to the pizza parlor, testified that there was only one eating place around the Oasis Motel, that David said he was hungry, so he went back to the Plaza to eat. Again, I can’t – I know people are all different and people do some stupid things. I have done my share of them. But it seems to me, if you wanted to kill somebody, if you had premeditated murder in mind, you wouldn’t do all of the things that David Ismail did that week, that day, that night. You wouldn’t register under your right name; you wouldn’t give your address; you wouldn’t sit in the front seat with the taxicab driver. Maybe you wouldn’t drink. Maybe you would – to reinforce your courage. You wouldn’t wear a light suit like that – dark shirt, bright tie. Seems to me you would do it a lot different. So I can’t help believe, I guess – Dr. Rapaport and Dr. Nidever felt the same thing. Superimposed upon this, they heard his story about the brain damage, and it was verified by Dr. Nidever and Dr. Rapaport. They know about the drinking. They know about his amnesia. They know about his love for guns. They know about his love for his father and his religion. In knowing all of those things, Dr. Rapaport said it was an impulsive act, after the worst insult could be given to his father, who loved this man. Dr. Nidever corroborates that, and I can’t see where in the world this is ever a case of murder in the first degree – second degree. The most I can see is involuntary manslaughter. It is up to you. I am not saying that this man should go free, and he is not pretending to go free. Now, you can believe that a man does all of the things that he purports to do, and you can believe that that man is absolutely sane; but we are talking about David Ismail, a person that lived under these conditions – with these conditions and under these circumstances, and who went into that house that night, who previously had gotten mad, forgot, couldn’t remember, who didn’t remember that night. The fact that the gun was laying there loaded, the fact that he was sitting there having a beer – all corroborated by witnesses and, most important, by people who know the mind, and even police officers who talked with people. And they know by talking to them that they are perfectly alert. But are they? How do you know – a few minutes in talking to a person – how do you know what the condition of his head is and what alcohol or drugs will do to a person? Did he have the type of a mind that could think before – think on it and then do it? Cold blood? That is what you have to do to find murder in the first degree. Or did he have the type of a mind that he did this with malice? I say to you that David Ismail should pay for his crime; but, thank God, the law is a little more enlightened nowadays than it was before. And I suppose in another ten years it will be more enlightened, because it goes along with science. At one time, when people were mentally ill they went to an asylum, and that was an awful word. And you talk about mentally ill people, and you talk about things of the mind, and you say it is fate; and yet psychiatrists’ offices are full, hospitals, wherever they have them, are full, the mental health department is full, and in this day and age people are suffering emotionally, physically, mentally, and that is the type of a person that we are dealing with. And when you look at and listen to this law, see if it doesn’t fit him. I think it does.
Again, I ask you to listen courteously to the District Attorney. I know that you will. I won’t be able to speak to you again, and you may say "Thank God!", and I say "Thank God" too, because I am getting tired; you are getting tired. So listen to him, and he will tell you certain things, and I will have to sit and listen as much as he has listened to me; but judge his remarks by the evidence and the inferences that you can draw from the evidence. And remember this, that we produced two doctors that are experts in the field of the mind. There has been no rebuttal as far as that testimony is concerned; and I don’t care what you say. They may be mistaken in certain facts, but assuming those facts, and base upon – what? – fifty years of experience for Dr. Rapaport and 10 years of experience for Dr. Nidever – 60 years – I think they know something. And you can say, "What has experience got to do with it?" Think about your own lives, and see what experience has to do with it. It has everything. Thank you. Thank you for my client, too.
CLOSING ARGUMENT ON BEHALF OF THE PEOPLE
BY Mr. ROBINSON
Ladies and gentlemen, I get another opportunity to speak with you, and there is two reasons for this. I don’t want you to think that it is unfair that the D. A. gets two opportunities to speak, and the defense attorney only gets one. The reason for this is that I do represent the people. I do have the burden of proof in this case. I have to convince you 12 people beyond a reasonable doubt and to a moral certainty. And secondly, I am sure that if we all sat back a minute and used our common sense, you would think of the second reason why I have a chance to speak with you; because, you see, when I stand up and talk to you the first time, Mr. Pestarino has an opportunity to listen to what I have to say, to write it down, and to stand up and rebut what I have to say. That is fair. He listens to it, and he has a chance to give his own argument and rebut what I have to say. Well if – the law says – if that ended it right there – finish, kaput – I think that wouldn’t be fair, because I don’t know what Mr. Pestarino is going to say when he stands up and talks the first time. So the law says when I talk to you the second time I can only comment on the things he touched upon. I can’t talk about something he didn’t comment on because that wouldn’t be fair to him. Okay. So if this is a little disoriented – taken out of context – it is because I am following it the way Mr. Pestarino laid it out. Okay? I have to take him point by point. Remember when we started this case, and we talked on "vior dire"? We talked about using our common sense in this case. We talked about being fair and everything. And we talked about our relative functions in the trial: the function of the District Attorney, who represents the people, to present all of the evidence; the function of the defense attorney to do the best job he can for his client, to try to create a reasonable doubt. He is an experienced attorney – did a good job in trying to create that doubt – trying to defend his client in the best way that he can: by creating reasonable doubt. He stood up right now and he said, "Sometimes we oversimplify things. " Well the best thing that a defense attorney can do in any trial is to try and create confusion; to try to get the jury away from a simple decision-making process into the realm of "Let’s speculate out here," "let’s go out here," "let’s go out here," and pretty soon you are so confused in the jury room that you can’t reach a decision. That is a verdict for the defense. So my job is to try and narrow in on the issue; and the defendant’s job, in trying to create a reasonable doubt, is to try to say, "Let’s bring in all of these different things and see what we can do. " Then he said, "You can’t judge a person by what he does or what he says. " Well now, how do you judge a person then? If you can’t judge a person by what he does or what he says, how do you judge a person? Do you call a psychiatrist to tell you what was going on in a person’s mind approximately five or six months before he sees him? The law says that when you look for intent you have to determine the intent with which an act is done. How do you determine intent? Remember when we talked about malice: express malice? How do you know if there is express malice? Express malice? You look at what somebody does: he pulls the gun, points it at somebody; he fires three times. What is the reasonable inference? What intent did he have? Intent to kill? Huh? Well if you want to follow Mr. Pestarino’s argument that you can’t judge a person by what he does or say, we don’t need jury trials. We’d have no justice system. We couldn’t judge anybody. How do you judge who you are going to vote for president? By what he does; by what he says. How do you judge whether somebody is telling you the truth? A member of your family – two kids – remember? We talked about this on "vior dire". You’re in another room. Your children – you hear a big rumble. You go to the bedroom. You separate them. Johnny says one thing, Louise says another. You listen to them. You have to decide what started the fight – who provoked it. How do you judge it? By what they say; by what they do. That is how you judge, ladies and gentlemen – individuals. And that is how we are going to judge about Ismail in this case: by what he did; by what he said. What did he do? We have been over this. We have been over the trip from Canada, the trip to San Jose – bringing this one little suitcase. I notice Mr. Pestarino didn’t address himself to where the rest of the clothes and other suitcase were. An oversight on his part? I don’t know. He did those things. He went to the Patriarch’s. He fired, hitting the Patriarch three times. That is what he did. What did he say? That is what he said on the witness stand. Do you believe it? That is how we judge a person: by what he does and what he says. He says he thinks it over-simplifying to say this man is lying – this man is telling the truth. See? The only way that we are going to judge individuals is by what they do and by what they say. I notice that – strike that.
He talked about bullets. Okay. The angle of the bullets and everything. And he says that they are right by the steps as you enter the front door, and if they are going to eject 10 feet they are going to be back out farther. You will see the pictures. You have heard that man testify that he was in the living room, that the Patriarch invited him in, that – Mr. Pestarino removed the diagram. Well, it is here. I have already gone over this initially, you know – where the cartridge cases are. They are outside the house. Take a look. Take a look as to where they are. The angle of the bullets – the doctor testified to that. Did Mr. Pestarino ask him any questions about his opinion on the angle of the bullets? Did he question his expertise in any way about deciding that? No, he didn’t. And what did the doctor tell us? The first shot: right through. A parallel shot. The next two angle down and inward – hit and went down 25 degrees on one shot; 30 on another. Now I defy you to believe Mr. Pestarino’s story. If the defendant is going to go up – huh? – the bullets are going to go up. No way. When you shoot down at a man who is approximately five feet five inches tall – the defendant is about five ten – five eight – shoot like that – the first one hits him, and you shoot two more times, and this man – this drunk man, this man under the influence, this man who can’t control himself, who doesn’t know what to do – not bad shooting. Not bad shooting. Three bullets in the area that is going to kill. Not too shabby a job in shooting for this man who has been, according to his story, spit on, hit, kicked – he is down, he is angry because they called his father a name. Or is the evidence more consistent with a good shot of a man who is at the front door, and when the victim opens it, stands there and pulls the trigger three times? Mr. Pestarino says the shells would be more towards the sidewalk, so, conversely, he must have been inside when he fired. No way! There is just no way. He says, "Well, you know you can’t believe Mrs. Shimun too much because she said that in her opinion the defendant didn’t know David Ismail, and here we showed this photo in 1962. " She wasn’t married to the Patriarch in 1962. How would she have seen that photograph? She told you, "Yeah, I don’t think he knew the defendant. " He talks about – he wants you to believe that – the defendant’s story about how he got into the Patriarch’s residence. Does your common sense tell you differently, ladies and gentlemen? A man who for 55 years has had very strict rules: he never sees anybody without wearing his clerical clothes; he never sees anybody without an appointment. He only makes appointments at certain times, and here is this man who knocks on the door, the Patriarch answers – he doesn’t have on his clerical clothes – and he says, "Oh, come on in. " Does that fly in the face of credibility? Does anybody believe that? He talks about that he has corroborated the defendant’s story. He says that this is a case of character assassination on the part of the people against Bishop – Reverend DeBaz. But who started it? Think about it. What corroboration has he given to the defendant’s story? He called him – didn’t strike him; almost struck him. And that he was mad at him. All right, let’s look at what happened up there, okay? The man is getting married. It is a big decision. He gives an order. He tells Father Birnie. He tells Father Birnie – he tells Reverend Michael, "I want to be the one to break it: no. 1, to my parents; and no. 2 to the people of the world. " He goes in. Michael is on the phone, and he says, "What are you doing? Who are you calling? What are you telling everybody about this for?" Is that unusual, huh? And what about the Reverend Michael where he says, "" was forced into marrying the Patriarch. I didn’t want to do it. He ordered me to marry him. " Well Father Birnie says quite the opposite. The Patriarch asked, "Can I get married in your parish? I brought up a copy of the marriage in English in case Reverend Michael doesn’t want to do the marriage, and will you do it?" What does Father Birnie say about Reverend Michael? "Did he seem upset to you?" "No, he was having a good time. He thought this was quite an honor: he is the one to marry the Patriarch. Quite a story to tell his church. " "That was probably just in front of the Patriarch. What about when the marriage was over and you drove him – you went out and had dinner at the Space Needle. How was it?" "He was happy; having a good time. " "What about the next day when the Patriarch was gone? Did he say anything to you then?" "No. Had a good time; enjoyed it. " Talks about – I will get to Reverend DeBaz later. He says, "Well now, how much did Mrs. Shimun hear? I don’t know. " That is what he tells you. She was here on the witness stand. Why didn’t he ask her? I asked her. I said, "Mrs. Shimun, what did you hear?" "I didn’t hear the doorbell ring. I didn’t hear a knock on the door. We weren’t expecting anybody. The first thing I heard was ‘Emama, Emama!’, then I heard a chair, scuffling, a chair moving, real quick, and real quick, right after that, I heard three shots. " "Is that all you heard?" "Yeah. That is all I heard. " He says, "Why is the weapon, when it is found, still in a cock position? Boy, you wouldn’t have done that. You would have uncocked it, or taken the magazine out, or put on the safety. " Ladies and Gentlemen, you kill somebody. What is the first thing you want to do? You want to get out. You want to run. You don’t want to be caught, huh? He talked about the perfect way to commit a crime, that "Boy, if Mr. Ismail wanted to commit a crime he sure could have done a job. " And Mr. Pestarino would have done a better job. Well, thank heavens that most of the people that I prosecute and the criminals that we catch aren’t smart. Or how would we catch them, huh? Is he saying everybody that gets caught that is prosecuted isn’t guilty because they were stupid? That is how you catch people. But let me tell you one thing: the man is not too stupid, because he almost got away. If he had made it back to that shopping center, they never would have caught him. How would they have caught him? Nobody saw him. Okay? If he hadn’t tripped over that fence, if Mrs. Damron hadn’t have had her garbage can knocked over a week ago by kids, and hadn’t said, when she heard that noise, "I think it was a garbage can. I think it was those kids, and I rushed out real quick" – but for those two factors, that man is home free. You think the police go from house to house? They are going to go through the whole shopping center? You saw it, and you saw how far away it is. They are going to go into Walgreen’s? And what are they looking for? How are they going to catch him? The man purchases a beer in the pizza parlor, has another one, calls a cab, goes back to the motel, and takes off the next morning. How are they going to catch him? You got another unsolved homicide on your hands. Fate and luck! Mrs. Damron and garbage cans and the kids and the chain-link fence is how we caught him. He says that – strike that. He wants you to accept Dr. Rapaport’s opinion. Okay. You know, you all heard my cross-examination of Dr. Rapaport. You all heard the tape. What did Dr. Rapaport say he knows about people’s minds – know better than you, know better than me about people’s minds. "Well, counsel, I’ll tell you. It was paranoia. The reason he moved from the motel on 19th Avenue down to the other motel is because he was paranoid. " One scintilla of evidence to support that? No. That is your psychiatrists for you, ladies and gentlemen. That is paranoia, because you are afraid to be caught about something, so you are moving around; you are always looking behind you. What about the other reason that makes sense to me? He got a cut rate down at the other hotel – a better hotel, less money. Now what makes more sense? But did Dr. Rapaport even know about that? No. He is saying paranoia though. Did he know about the other side of the case? Well, we didn’t give him the police reports – because he knew somebody was killed; so he just wanted to find out the amn’s state of mind at the time he did the killing. Well, ladies and gentlemen, don’t you think that if he had looked in the police reports and found out that the witnesses’ statements, such as Mrs. Shimun’s, "Hey, the first thing that happened is, I heard ‘Emama, Emama! I heard a chair move, and I heard three shots. " – don’t you think that is important? Except Dr. Rapaport believes the defendant’s story about how he got the gun. His opinion wouldn’t have changed if it had been otherwise. Your opinion is only as good as the facts on which you base it on. And what facts does he have? He has the defendant’s story. What about Dr. Nidever? What did he say after he interviews the defendant after the trial starts? I said, "Doctor, did you have the police reports?" "Well, no, as a matter of fact. I asked Mr. Hernandez, the defense attorney’s investigator, if he would get me the police reports, and he said, ‘No, you don’t need them. ’" Well, my God! Here is a doctor who Mr. Pestarino wants you to believe, requesting police reports, and he doesn’t get them. Why not? Mr. Pestarino says, "I don’t know about the gun, but the gun wouldn’t even be too much significance if I did know about it. " Does anybody understand that comment? He says Myers testified that he bought the station in December, and he purchased the gun in December. Okay. I’ll buy that. Why is he telling us that? We all heard that. And he sold the station in February. Okay. And that he says, "" bought the station from Yule Lazar. "" Then counsel says, "See. He didn't buy it from Yule Lazar; he bought it from 76. " Well that is a semantic problem right there. Who owned the station before Myers? Yule Lazar. Who was the next owner of the station? Myers. If you were asked, "Who did you buy the station from?", what would you say? I bought it from 76 or I bought it from Lazar? Once again the coincidence of the gun – the most amazing coincidence in the world, ladies and gentlemen. Think about it. That this gun that we can prove that Myers had, okay? – it is proven he bought it from Siegle’s. Siegle’s has it all registered and everything to Myers – has the date – and Myers is called six years later – five years later – and says, "We understand that you got this . 22, because we checked it out through the serial numbers through Siegle’s. We understand that you got this . 22. Do you still have it?" "No. I don’t. " "What did you do with it?" "I sold it to Yule Lazar. " All right. And lo and behold, who is Yule Lazar? That factor: what part does he play in this case? I have been over all of this on my opening argument, and I just want you to consider that. Keep that in mind. Boy! In a bar? "Isn’t Lazar entitled to as much weight as Myers?", says counsel. Sure he is. Sure. Put him on the witness stand. There is no presumption – and you are not going to hear anything by His Honor, as counsel indicated, that all witnesses that take the witness stand are telling the truth. The law, long ago, did away with the presumption, because they found it to be in error. People lied. People are human beings: they lie. They lie to support their own best interests. That is why the instruction says, "When you decide the credibility of a witness, you 12 people are the exclusive judges. You decide who has got the bias or motive in the outcome of the case. Who has got a reason to lie. " Okay? Now, is Yule Lazar going to get on that witness stand with his background – the fact that the F. B. I. and other individuals know about the A. U. A. – and say, "Yeah, I gave that gun to Ismail"? Are you kidding me? He’s not going to say that. And counsel says, "Well, he testified at the Grand Jury. " If he’s going to lie at the Grand Jury, he’s going to lie here. He says, "You know, is Lazar entitled to as much weight as Myers?" You judge them by the same standards: who has got the bias, interest, or motive to lie? What you have to do: you have to decide if somebody is lying to you. You have witness "x" say one thing, witness "Y" saying another. And that is what trials are all about: to get at the truth. You have to make a decision. You make it based upon the evidence that you have heard; on the instructions that you will hear. Somebody lied to you on that. Counsel talks about this seven ounces of alcohol, and he says, "Wow! That is a lot to drink: one ounce drink – two ounces. " Has there been any testimony that is how the drinking went down? These aren’t bar shots. The man has a bottle. He pours some in a glass. I am sure that he is not measuring one ounce and guzzling it down. You saw the glass with some partial shots in there. He pours himself some and drinks it. What for? To get drunk, or calm his nerves? Put that together with all of the other facts in this case. He says, "You can’t just look at the laws. Not all people are held to the same standard. " I defy him – listen to that when the judge reads you the instructions. He is not going to read you any instruction that Assyrian people are held to a different standard from Canadian people; and Canadian people held to a different standard from German people. That is not the law. Everybody is held to the same standard. That is what His Honor is going to tell you. He says, "Who cares if Dr. Nidever doesn’t know anything about murder; doesn’t know the definition of murder; thinks that you need ill will or hatred toward the victim in order to establish malice aforethought?" Well, somebody is going to collect $650 and try and con you people that he is an expert, and try and con you people that in his opinion this man wasn’t cold, premeditated murderer. He doggone well better know what he is talking about; and he didn’t. He didn’t. He told you this wasn’t a cold, premeditated murder. He didn’t even know the definition of murder; didn’t know the elements of murder. What sort of expert is this? Counsel says, "He uses tests. This is Dr. Nidever that I don’t know anything about; but the tests are reliable and in evidence, so that these tests are reliable – these 12 tests that he gave the defendant. " I think evidence is quite to the contrary. I asked him, "Doctor, were any of these tests designed for the purpose of deciding a legal issue in a courtroom?" "No, they weren’t. " What makes them reliable? He talks about this brain impairment Dr. Nidever testifies to. Dr. Nidever is not a neurosurgeon. There was no brain scan done on the defendant. There was no E. K. G. done on the defendant. How can Dr. Nidever tell us if this man has brain damage? He says, "Dr. Rapaport says the same thing. " How can they tell us that from their three or four hour statement from the defendant? And counsel sums it up by saying that there has to be something wrong with his brain. If there was something wrong with his brain if would show up on a brain-scan or E. K. G. We don’t have any evidence of that. Why not? Because it is in the tape. Listen to it. Counsel asked him, "Doctor, do you think I should try to get a brain scan or E. K. G. ?" Rapaport says, "Uh-uh, because if it doesn’t show up something, you are in big trouble. " And we don’t have one here. And even if there was something wrong with his brain, that doesn’t bother me. He functioned on this earth for 42 years. There is nothing in this evidence that shows that he was incapable of premeditating. We have already discussed premeditating. You weigh the pros versus the cons. Deliberation: you weigh the pros versus the cons; premeditation: you do it before you kill. Nothing in this evidence to show he was incapable of doing that. He made the decision to come from Canada to San Francisco; to come from San Francisco to San Jose; to go from San Jose to the Patriarch’s house; to arm himself with a weapon. He made all of these decisions. Nothing prevented him from doing this: no brain dysfunction or disorder. He says, as far as he is concerned, Father DeBaz was assassinated. He called Father DeBaz! I didn’t call him. He says Father DeBaz is a fine man. I differ with him on that, as do other people. You know, let'’ use our common sense. Father DeBaz says, ""o -–yeah – well, I was sort of mad that he transferred me from Chicago to Flint; but no, I never made any statement about him or anything; and geez, I made more money in Flint than I ever did in Chicago. " Well, he was in Chicago ten years, and he only had to work two of them. The other eight years he was able to lead a good life without working. So then he gets transferred to Flint. Do you think he is made where he has got to work now? Doggone right he is mad! Father DeBaz, this honest man: "Father, I take it you read the Assyrian Star?" "Yes, I do. It is delivered to my house. " And, "Father, do you know anything about a Sam Andrews and Zaia Ismail being tried by the A. U. A. for being spies?" "No, I don’t know anything about that. " "Father, this paper comes to your house. It is in the paper. Did you read it?" "Well, I must not have read that article. I don’t read everything in there. " "Father, were you ever in a bar with David Ismail?" "No. If I go to a bar I am going to be excommunicated. " Why would Dennis Lazar lie? Why would he send us a letter when this case first happened? He sends us a letter in December, 1975, before he knows what DeBaz is testifying to. How do you think I knew that information when DeBaz – "Wait a minute, Father. In July, 1975, weren’t you in a bar at the Sheraton Inn at Piedmont Point Road in Flint, Michigan, over in the corner with David Ismail?" And he said, "Well, no. No, I was never in a bar. No. " Why would Lazar write that information in December of 1975 when he sends us that letter? Sam Andrews, he says, "He will call a spade a spade. This Quest here – the Assyrian Quest is just trash. There is nothing in here that is true. It is all bad stuff and everything. " What I would like to do is have you read this article, "Mar Eshai Shimun is back", okay? And see if in fact that article is a truthful statement. It traces exactly what Fred Kelaita told you about. It traces exactly how the bishops met. They say, "We got to get rid of him. " They defrocked him. They sent out a letter, and the Senate met and said, "Okay, we want you back", by saying, "The following committee of bishops authorized Mar Dinkha to meet with Mar Shimun", by authorizing an official letter signed by six bishops. All of that is in evidence. They made and sent proposals to Mar Shimun, including the following: One, if you consider yourself Patriarch of the Church of the East, we welcome your return, in order to restore unity to our church; two, if you are tired of your duties, we are ready to accept the responsibility of leading our church while you keep the title Patriarch; three, if we agree on the above compromises, we demand that amnesty be issued for some officials of the Church of the East who were expelled by Mar Shimun before his resignation. Okay, is that true? What about this other fellow in here, Philip Malik, who used to be a member of the A. U. A. ? His name is right here: "Philip Malik speaks out; an interview with the A. U. A. treasurer, Philip Malik", where he says, "The question is, do you think that the present-day Assyrian leaders, who are holding high offices in the Assyrian Federation and Alliance, have accomplished a great deal in meeting the Assyrian nations’s needs? Do you really want my honest answer? I’m sorry to say that whatever has been accomplished by them stinks and smells rotten. They haven’t done a damn thing!" Interesting. Sam Andrews comes out. He has met the Patriarch twice, and both times the Patriarch yelled and swore in front of Sam Andrews. Does Sam Andrews have an interest in this case? Bias? Interest? Motive to lie? Think about it. Sam Andrews. How many people do you know that have ever been accused of being a spy for the Iraqi government along with the defendant’s brother, Zaia Ismail? When did the accusations take place? Not, ladies and gentlemen, when the defendant’s father is alive. After – after he dies. And it is Sam Andrews and Zaia Ismail. What did he tell you he was paid? He says one thing in here is true: "I was paid $3,000 by the Iraqi government. " Now why is the government of Iraq paying Sam Andrews $3,000 by a foreign government? But all of the other allegations are lies, he says. Read this. It is interesting in here. Look at the information that Sam Andrews brought us out here about the A. U. A. Well, first of all, a lot of these things that he provides, if you go through them, all occurred after the Patriarch was killed. Look at the dates on these things. What did he bring us before the Patriarch was killed about the A. U. A. ’s position and policy? Nothing! Is this selective bringing-in of documents? Maybe the same thing as Yule Lazar did. But one thing he did bring in: the Seventh Congress of the A. U. A. , okay?, as assembled in Chicago, September the 17th to the 25th of 1974, by unanimous resolution made the following decision: "One, declarations and resolutions: Be it resolved that the Iraqi government recognize and implement the following demand of the Assyrian nation: We request the government of Iraq to accept the Assyrian nation constitutionally as a third principal nation within the political framework of the Republic of Iraq. We request the government of Iraq to accord autonomous status to the Assyrians in the territory between the Greater Zab and Tigris Rivers. An Assyrian autonomous state in said territory shall be protected by the Assyrians themselves. " Now let’s think about it. Does anybody seriously think the government of Iraq is going to give up a piece of their land to the Assyrian people? Or do you believe Fred Kelaita where he says, "This is nonsense – this A. U. A. It is a few people. It doesn’t represent the Assyrian community. It is a few people; and some of them are good, and some of them – in any organization – are bad. " Some of them are getting paid $3,000 by the government of Iraq. "Six, be it finally resolved that the Seventh Congress call on all nations in the United Nations; that the Assyrian nation be continued to be historically known as Assyria, and not as a religious denomination nor tribal sect. ".
He talked about Peggy Ismail. He said that she was an honest person, but "you know, she might have lied to help her husband. " She was interviewed on November the 7th, right after the homicide goes down. And what does she say? Not that he has no guns in the house; not that he doesn’t have any guns in the car; but that he has never had a gun, ever. And I think she was an honest person. That is what the constable testified to. Now how is it going to hurt her husband if she says, "Well, he used to have guns, but he got rid of them because I told him to get rid of them"? How is that going to hurt her husband? It is not. She said, "He had no guns in the house – no guns ever", because he had no guns. What happened after her statement? Why, Mr. Ismail – because then he had to make the statement, after the constables testified that there is no way that you are going to get a gun over here from a foreign country – he said, "Wait a minute. I hope I didn’t leave you people with the impression that I brought those guns over here with me. When I moved over here I left my father’s gun and my gun over there. So I bought a gun from Fred, and I bought a gun from Joe, and then I kept them for a while; but I got rid of them because my wife wanted me to get rid of them. " "Well, Mr. Ismail, why did you buy the gun in San Francisco if your wife didn’t want you to have a gun?" "Well, my wife doesn’t tell me what to do. " And counsel says why didn’t I call up there and verify that he gave this gun to his friends. I don’t believe his story. I don’t have to verify that. That is just ridiculous. The trial was long – was ending. Did anybody believe that story there at the end? That is somebody who is trying to worm his way out of something. He’s caught. He’s been had. Why didn’t counsel bring his wife down here? I can’t call his wife to testify. There is a privilege. He brings his brother, Zaia, down from Canada; brings people from Chicago. Why not Peggy? Who knows him better? Who’s been with him? Because she’s not going to testify – she’s not going to be able to say that he had guns all of the time, he was brought up in a military camp, that he flew off the handle and broke dishes and hit people and had blackouts and everything. What does she say to the police? "No, he never did any of these things. " So who does he bring in to corroborate these things? Why he brings Sam Andrews. He brings Bishop DeBaz. He talks about the phone call to Australia. He says, "See, he wanted to call his niece. " He hadn’t seen his niece – never seen his niece – and all of a sudden he decides to call her in Australia the day before the day of the killing. And his niece isn’t in. So who else does he call? He calls Mr. Kanna to check out where his niece went. Does that make sense? Mr. Kanna, who just happens to be the head of the A. U. A. in Australia; who just happens to have written many derogatory articles against the Patriarch; who wanted the Patriarch out as Patriarch. Happens to call him.
Counsel talks about motive, and as I told you in my opening argument, we don’t have to show motive in this case. It is not an element in the crime. And I told you, too, there are various motives that I can see. I can’t say, "Yes, this is definitely the reason that he did that; yes, this is definitely the reason that he did it. " I am leaving it up to you – from all the evidence. Motive? A. U. A. motive? A. U. A. ? Motive? He feels that his father was killed – died as a result of the Patriarch’s marrying. Motive? He feels that his own life was destroyed as a result of the Patriarch marrying. Who knows? Or all of them put together, who knows? We don’t know why people do certain things – never be able to show why they do certain things. In a court of law you don’t have to show motive. What you have to show is what happened; and we have shown that by the physical evidence, by the witnesses who have traced him this far, by this gun, by the fact that the man was shot three times, by Mrs. Shimun’s own testimony.
Now counsel is an experienced lawyer, and what I asked you about on "vior dire" he is telling you. He says, "Look, we don’t expect David Ismail to go free. " Okay. There is no way in the world that he is going to go free. He is a dead player on identity. We got his fingerprints on the gun. We got him right there. Okay. Not an identity case. So, anything else? He is going to be convicted of something. But what counsel wants to do is to get him convicted of the lowest possible denominator. That is his job. His job is to create confusion – side issues – try and create a reasonable doubt and get his man convicted of the lowest thing that he can. He is not going to stand up here and say: Yeah, I made the D. A. prove the case; he is guilty of murder. No. Of course he is not. So where he says, "We don’t expect him to go free", don’t think that he is candidly standing up here and saying, "Well, I am going to say this is a tragic thing. We wouldn’t want our guy to go free of anything. " He says he is talking about the condition of somebody’s mind, and counsel says, "Well, how do we know the condition of somebody’s mind unless we talk to him?" And that is how he explains how Dr. Rapaport and Dr. Nidever obtained the condition of this man’s mind. Well so did the police officer at the scene that night, who had a chance to talk with the defendant – to see him before he had a chance to talk with this attorney. You mean to tell me counsel says, "Well, see, I didn’t even tell David – I didn’t even know any of the facts about this thing. He is arrested on November 6th, and Rapaport doesn’t see him until January 22nd in the jail. " He hasn’t talked to his attorney for two months? This is a little hard to swallow. But what does he do, according to the police officer? This is a man who doesn’t know what he is doing there and everything. He listens to all of his rights, understands them, says, "Yes, I understand that. I will talk to you about certain things, but I am not going to talk to you about the killing. " Then he talks about "We produced two doctors, experts in the field, and there was no rebuttal evidence. " Well I think that it is obvious that you can tell how I feel about psychiatrists. I don’t believe they have any place in a court of law. And my reasons for saying that: look at all of your big trials. Every trial you get – it makes me sick! – where you see four psychiatrists come in, and they are paid by the prosecution, and they testify for the prosecution; and four come in, and they are paid by the defense, and they testify for the defense. Is that what a court of law is all about? Who can pay more money? Who can hire people? No! I am never going to call a psychiatrist. No, I am not ever going to call a psychiatrist, because I am going to call 12 people in off the street who have some common sense, who have lived a little bit, who can listen to the evidence and say, "Wait a minute. If this psychiatrist is going to give me an opinion, he better base it upon something that I can rely upon. Not somebody who is going to say, ‘I talked to the defendant. I didn’t investigate the case. I talked to him for four hours and, ladies and gentlemen, here is my opinion, here is my experience, so you should listen to me and vote with me. ’" He doesn’t even know half the facts that you know.
Well, I think that just about covers everything that counsel discussed. I don’t know. I’m sorry if it was so disjointed at the end. It’s tough on rebuttal, because when you argue your case on your opening argument, you know where you are going to go, and rebuttal – you have to sort of hit and miss what counsel talks about; and if he is all over the board, to follow him. But what I would like to leave you people with is just that, you know, it is your community. It is your country. You people make the laws. You make them by putting people in office, by voting for judges like Judge Barnett, who did an excellent job in this trial; and, you know, we have the laws, and everybody says, "We are going to be fair and impartial to both sides. We are going to be fair to the people, fair to the defendant, and if the man is guilty of something, we are going to call it like we see it. "We all said that at the start of the trial, and that is all I can ask you people. I think that the evidence shows beyond any possible or imaginary doubt that the defendant, David Ismail, premeditated, deliberated, and, with malice aforethought, gunned down His Holiness, Mar Eshai Shimun XXIII – gunned him down in cold blood. There is no other way around it. Thank you. Be fair.
On the afternoon of April 5, 1976, the seventeenth day of the trial, the jury arrived at a verdict:
"The people of the State of California versus David Malek Ismail. "
"We, the jury in the above entitled case, find the defendant,
David Malek Ismail
Guilty of murder by violation of California Penal Code Section 187, and fix the degree as murder in the first degree. "We find the charge of using a firearm contained in the indictment to be true.
Dated April 5th, 1976, Paul Mora, Foreman"
On May 17, 1976, the defendant, David Malek Ismail was sentenced by Judge Barnett:
" It is the judgment and sentence of this court that for the crime Of murder with a deadly weapon, which was used, according to the counts in the indictment, by section 187 of the Penal Code and 12022. 5 of the Penal Code, that the defendant be remanded to the custody of the sheriff of this county, and I order the sheriff of this county to transport the defendant to the California Medical Facility at Vacaville for the term prescribed by law, that he be Imprisoned in the state prison for the term prescribed by law. "
According to the laws of the State of California, the prison term for
Murder in the first degree is Life Imprisonment.
The defendant’s application for probation was formally denied, and the defendant was then advised of his right to file an appeal of the case within sixty days. Whereupon, the proceedings in the above entitled matter were concluded.