29

The Mock Trial

One of the first persons Pepper talked to about the case was Renfro Hays, the discredited private investigator who had concocted the false stories concerning Ray’s alibi. “Hays single-handedly did more damage to the case and the pursuit of truth than anybody else,” says Wayne Chastain, a former journalist turned lawyer who later became one of Ray’s attorneys.

But Pepper listened attentively to Hays and his startling tales, among them that a CIA mercenary had been in Memphis the day before the killing and had cut down a tree branch that blocked a clear shot from the rooming house; that a state trooper in Louisiana was really the shooter Grace Walden saw fleeing the rooming house; that a twelve-year-old black youngster had seen the shooter, and after he told the authorities what he saw, “the police came and took the boy away; he wasn’t heard from again”; and that a local safecracker had opened the door to Ray’s room at the boardinghouse on the day of the assassination and had seen three to four men inside, none of whom looked like Ray.1

“I was intrigued,” said Pepper, who has a reputation even among friends as someone very receptive to broad conspiracy theories. “Hays seemed to be both sincere and fearful.”²

After meeting Hays, Pepper decided to represent Ray on his appeal before the Sixth Circuit regarding the denial of yet another evidentiary hearing. “On my next visit to Memphis,” recalled Pepper, “Renfro Hays introduced me to Ken Herman, another local investigator, whose services I engaged.”3

Kenny Herman, then a fifty-two-year-old self-styled private investigator, was certainly every bit as colorful as Hays. Overweight, darkly tan, and with orange-tinted hair worn in a 1950s pompadour, he presented an offbeat image. Herman liked to boast that his one-story, bright pink home was “built by Elvis.”* His first successful business was the Elvis Presley Information Center. “I sold Elvis before anyone else thought of it,” recalls Herman. When Elvis died, Herman stocked up on a thousand newspapers, which he keeps in his attic, planning to hold them until the twenty-fifth anniversary in 2002. “Then I’ll cash in,” he says determinedly.⁴

Herman has dabbled in a dozen other ventures besides the Elvis souvenir business, but his true love is country music. “I was playing in a local club here in town on the night King was killed,” he recounts. “They closed the whole city down that night with the curfew and all, and I was the only guy with a car. I had to give all the black musicians rides home, and there were riots all around. It was wild.” Always thinking of a way to make a quick buck, Herman even profited by the assassination. “I rented my German shepherd to a furniture store because of the looting and all that followed. I rented out about twenty-five to thirty dogs, anything that could bark.”

But his old acquaintances, including Elvis Presley and Johnny Cash, had gone on to star-studded music careers, leaving Herman behind. According to some friends, he was bitter. Although Herman was never able to get a private investigator’s license—a criminal record bars him from having one—it did not stop him from doing civil and criminal investigations for local lawyers. He enjoyed that work, and running into Bill Pepper and the Ray case promised to put him in the limelight, something he relished. Herman quickly became Pepper’s chief investigator.

On the legal front, Pepper initially had as little success as his predecessors did. The Sixth Circuit Court of Appeals rejected the petition to grant Ray an evidentiary hearing. The United States Supreme Court refused to hear the case in October 1989.

But Pepper, as had Mark Lane before him, realized there were other ways to press Ray’s case. Although there were ever fewer legal options available through the courts, public opinion had yet to be extensively exploited. Even after twenty years, the King murder had attracted only a small portion of the media attention given to the JFK assassination. There were only a handful of books and no major documentaries or films. Pepper, with Herman doing the fieldwork, set out to change that.

“In early summer 1989,” recalled Pepper, “I became involved in assisting the production of a BBC documentary on the assassination, Inside Story: Who Killed Martin Luther King?”5 That show made a case for a widespread CIA-led conspiracy, with Ray as a patsy.

Much of that show was a rehash of interviews with longtime conspiracy buffs. “No question a secret [intelligence] unit carried out the Kennedy and King assassinations,” said Fletcher Prouty, the former military officer who had developed some of the wildest and least sustainable theories in the JFK murder.* Harold Weisberg appeared to say, “There is no evidence that Ray ever shot a rifle in his life.” He seemed not to know about Ray’s marksmanship in the Army or the practice session he had with the .30-06 he bought only days before King’s murder. Ed Redditt, the black Memphis policeman who had been assigned to watch King and was removed from duty the day of the assassination following a bogus death threat, reappeared to imply his removal was part of a conspiracy. It was the same charge for which the House Select Committee had chastised him nearly a decade earlier.

The show also had new material that Pepper and Herman had helped develop. Earl Caldwell, a former New York Times reporter who was at the Lorraine on the day of the assassination, said he saw a white man emerge from the bushes across from the motel just after the shooting. Caldwell complained that no one had ever interviewed him about what he saw that day.^† But the highlight of the show was an interview with Jules Ricco Kimble, then serving a double life sentence in Oklahoma for murder. He claimed he was a CIA hit man who had handled Ray in Canada in 1967, took care of all his false identification, and flown him to freedom after the assassination. Kimble even maintained that he was Raoul.

Kimble also insisted he flew two snipers to Memphis the week before the assassination, and that Ray was merely a pawn. Ray then appeared on the show to say that Kimble looked very much like someone he had seen on the day of the assassination in Jim’s Grill, beneath the rooming house. Support for Kimble’s veracity came from a bizarre source, New Orleans district attorney Jim Garrison. Years earlier, Garrison had linked the self-promoting Kimble to the JFK murder, and he now said that “every single statement Kimble gave us turned out to be true without exception—the only information that is not true is what had been planted at that time in his mind at the end of his service by the CIA.” According to Garrison, the CIA had somehow inserted the thought into Kimble that he really worked for the Ku Klux Klan, which, according to Garrison, “is really pretty standard operating procedure for intelligence agencies before they dismiss someone.”

The producers evidently were not troubled by the fact that the House Select Committee had extensively investigated and dismissed Kimble’s ever changing claims ten years earlier. He was not even in Canada at the time Ray had been there. Moreover, under intense questioning from the committee, Kimble had actually admitted that he had never met Ray.6

Pepper, however, felt comfortable enough with the show to be interviewed and endorse its theory. Although he had only recently begun his research, the program demonstrated that he already embraced some of the weakest conspiracy issues. He announced not only that the bundle containing the murder weapon had been dropped there by somebody who “had a specific role,” but also that the fatal shot came from the bushy area behind the rooming house, not from the bathroom of the house itself. “It is not enough to say that the FBI did it,” concluded Pepper. “It is much more complicated than that.”

Following the BBC show, Pepper said, “I began to flesh out the bones of the idea of a television trial.… I spent two years getting nowhere. Finally, Thames Television in London expressed interest in producing the program.… In early 1992 I signed a contract with Thames. It was agreed that both counsel and the judge would be paid reasonable professional fees. I insisted the Ray family also be paid a fee.”⁷

Jack Saltman, a veteran British television producer, was assigned to the program, and Home Box Office became the American partner. Hickman Ewing, Jr., the former U.S. Attorney for the Western District of Tennessee, agreed to play the prosecutor, and Marvin Frankel, a respected ex-New York District Court judge, was chosen as the jurist. The jury would be composed of people from four states who had completed written questionnaires and submitted to videotape interviews.

Once the mock trial had Thames and HBO financing, one of the first things Pepper did was introduce Saltman to Kenny Herman. By this time, Herman had found a sidekick, six-four John Billings, a forty-three-year-old self-described “mercenary” who had left a rough narcotics-running gang operating out of Arizona and Mexico to become a private investigator.8 The producers gave Pepper $140,000 to investigate the case, and he used Herman and Billings. But once the word spread among conspiracy buffs that a major television production about the King case was under way, and that Ray’s defense lawyer had money to spend, Pepper was besieged. Soon he was paying for leads so wild that even Herman and Saltman were angry.⁹ “He spread the money way too thin,” complains Herman. “Pepper believes anyone with a story. He’s really, really naive. He paid $14,000, sight unseen, for a photo that was supposed to show some military guy shooting King. Of course, there was no picture. He paid $25,000 for stuff about the Army that I knew was junk.”*¹⁰

But despite the discord on the defense team, the money allowed them to prepare effectively for the televised mock trial, often freshly packaging old issues with new witnesses. From the start, Pepper was willing to use a tactic that Jim Garrison had employed with disastrous results: “We wanted several witnesses to be hypnotized to determine whether they could remember anything further,” he recalled.¹¹ The possibility of planting new memories instead of recalling old ones was a risk he evidently thought worthwhile. Most of the matters upon which Pepper and his investigators focused had been settled conclusively fifteen years earlier by the House Select Committee, yet that did not stop them from resurrecting old canards as evidence of a conspiracy: King had never before stayed at the Lorraine and his room was changed at the last moment in order to give an assassin a better shot; two white Mustangs were parked in front of the rooming house on the day of the assassination; and the bullet taken from King’s body was mysteriously broken into three pieces as part of a ballistics cover-up.^† Pepper relied on the early statements of Solomon Jones, the driver assigned to King by the local funeral parlor, about an unidentified man in the bushes across from the Lorraine. Caldwell once again “confirmed” that sighting. James Orange, one of King’s aides, now came forward with a new story: that after he heard a shot he saw smoke coming from the same bushes.*

Orange’s memory went beyond the smoke he claimed he remembered: He also said that the bushes from which he had seen the smoke emanating were cut down the day after the assassination. That was one of Pepper’s favorite issues at the trial—whether the shrubbery across the street from the Lorraine had been mysteriously chopped down the day after the murder, leading to the suspicion that not only had evidence been destroyed, but that it would have shown that a shot from the rooming house bathroom was blocked by the thick foliage. Actually, a Memphis newspaper reporter, Kay Pittman Black, had first raised the question about the shrubbery shortly after the murder. It had become one of the case’s enduring areas of speculation, with some conspiracy buffs earnestly comparing numerous photographs to see if the foliage seemed denser the day before the assassination. The House Select Committee tackled the question and could find no records of the City Public Works Department that showed such a cleanup took place, but could not rule it out. In his preparation for the trial, Ken Herman found a public works employee, Willie Crawford, who said that he and another worker had been ordered to the vicinity of the Lorraine the day after the murder in order to cut and clean up the backyard of the rooming house.

But evidently no one checked the local Memphis newspaper archives, where the answer to the mystery is resolved. Trees were indeed cut down and foliage thinned, according to The Memphis Press-Scimitar, which reported on the event contemporaneously. However, the work was not done until early August, four months after the assassination.12

While Pepper’s revelations were generally not new, and there was evidence available to rebut them, the prosecution, led by Hickman Ewing, was not well prepared. Pepper successfully flooded the trial with issues that Ewing had trouble refuting. When James Earl Ray finally testified, from a room in his jail, he performed much better than when he had been grilled by the House Select Committee fifteen years earlier. Unknown to the jury and the viewing public, Ray was being coached by Kenny Herman’s sidekick, John Billings. He sat with Ray but was off camera, and passed notes to help Ray with his answers.¹³

The essence of the defense position was summarized by Pepper when he told the jury, “James Earl Ray was manipulated—by forces he does not understand and that he cannot identify. He was a patsy.” The scattergun approach worked with the jury, which returned a not-guilty verdict on April 4, 1993, the twenty-fifth anniversary of the murder. Pepper used the verdict to ask the Tennessee governor, Ned McWerter, to free Ray, and for Amnesty International to come to his aid since he was “a true prisoner of conscience.” Both rejected Pepper’s requests.

Despite the rebuffs, Pepper considered the trial a success. “Its preparation had provided a foundation for the opening up of the case as had never before been possible,” he said.¹⁴

But not everyone who worked with him shared the good feelings. “Pepper turned out to be an idiot,” says British producer Jack Saltman. “He was just the easiest touch in the world. Pepper made me commit a lot of money to Jerry Ray, since he couldn’t pay James directly. This was a way to pay Jerry. I said it was O.K. if he really worked as a researcher for Pepper. I doubt that Pepper got his money’s worth from Jerry. That is part of Pepper’s ineptitude. I gave him a lot of money for the show and he did not pay a lot of other people.”¹⁵

Kenny Herman says that he and Billings spent about $40,000 of the production money chasing their own leads, and he personally ended up $17,000 short from Pepper by the time the show aired. Billings was $5,000 in the hole.¹⁶ After the mock trial aired, the two investigators stopped working for Pepper. “But that was all right,” says Herman, “because we got a lot of research done for that show, and Jack [Saltman] wanted to produce more shows about the case. Jack and I became partners, and we just agreed to split any money that came in. I’d take care of Billings from my share. And the HBO movie did the trick because people started coming out of the woodwork, and that gave us plenty of things to follow up on.”17 These people coming out of the woodwork were about to change the nature of the case.

* His house is a museum of kitsch, from iridescent Jesus night-lights to small plaster replicas of the Parthenon and the Pietà, to his own executions of paint-by-number nudes. The chain-smoking Herman, comfortably ensconced in his perpetually dark living room, will gladly play one of his guitars and sing Merle Haggard songs for visitors. He also enjoys providing tours of the house, “a bit of Florida in Memphis,” ranging from the safe that he boasts holds two kilos of gold to the rickety kitchen table that he says was the site of many of his breakthroughs in the Ray case.

* Prouty would later become an adviser to Oliver Stone, and the mysterious “Mr. X” in the film JFK was based on him.

^† Since telling that story in 1989, Caldwell has repeated it in several television interviews. Pepper and Herman apparently did not know that while Caldwell might not have been interviewed by law enforcement, he was extensively interviewed by author Gerold Frank only a year after the assassination. According to Frank, Caldwell was in his first-floor motel room, at the Lorraine when the shot was fired, and initially thought it was a bomb, and then a firecracker. He went outside only after he heard considerable screaming and commotion, and then saw King’s legs dangling over the edge of the upstairs balcony. He then ran back inside his room to get a pencil, and by the time he again came outside, a crowd of uniformed men was racing toward him, as though they had been hiding in the bushes. Frank reported that Caldwell’s first thought was that the police had been shooting at King, although at the time he did not realize a large contingent of police had been nearby in a fire station (Frank, An American Death, p. 82). Somehow, in the nearly twenty years that had intervened between his contemporaneous interview with Frank and his 1989 television interview, Caldwell’s memory had changed to a sighting of a possible assassin in the bushes, something that he was physically too late to see in any case.

* For a detailed discussion of Pepper’s theory about the Army and the King assassination, see Chapter 32.

^† The confusion over the bullet developed because a Memphis police lieutenant, J. D. Hamby, had signed an affidavit that he had received “one battered lead slug” from the Memphis coroner, Dr. Jerry Francisco. By the time the FBI finished its ballistics work with the bullet, it was in three pieces. Pepper added to the mystery by getting former Memphis homicide chief N. E. Zachary to say that when he passed the bullet to the FBI, it was already in three pieces. Was either Zachary or Hamby lying about the condition of the bullet? Had someone intentionally broken it because of fear it might not ballistically match Ray’s rifle, dropped at the scene? Actually, the death slug removed from King was in one piece and Zachary’s twenty-five-year-old recall was mistaken. Dr. Francisco, who performed the autopsy, is still the Memphis coroner. When the author met him in April 1997, Dr. Francisco produced a color slide of the bullet removed from King, and although battered, it was a single piece. The author then interviewed the FBI’s Robert Frazier, now retired, who confirmed the bullet was intact when he received it from the Memphis police. “I am the one responsible for it being in three fragments,” he says. “The nose was folded back over the bullet, so in order to examine the microscopic marks and the rifling characteristics, I had to peel the nose of the bullet back. The pieces broke off because the brass gets overstressed. That is typical in any firearm examination where the bullet has mushroomed and you have to get it peeled. I’ve done thousands of such exams, and very frequently a bullet would fragment like that.”

* The problem with Orange’s revelation, revealed almost twenty-five years after the event, is that modern firearms and ammunition, such as the Remington Gamemaster rifle and .30-06 bullets, are smokeless. For a fuller discussion on Solomon Jones, see Chapter 6.