Republican Arkansas Senator Tom Cotton on Tuesday criticized Ketanji Brown Jackson’s past work as a public defender, arguing that she might have defended Nazis at the Nuremberg Trials. On this week’s episode of Now & Then, “Ketanji Brown Jackson, Criminal Justice, & Public Defense,” Heather Cox Richardson and Joanne Freeman compared the GOP vitriol over Judge Jackson’s defense work to the controversies that John Adams and Clarence Darrow weathered for their representations of unpopular clients. Another American reckoning over the role of defense attorneys came in 1969, when Emile Zola Berman agreed to represent Bobby Kennedy’s assassin, Sirhan Sirhan.
On June 5th, 1968, Bobby Kennedy, fresh off winning the California Democratic presidential primary, offered a hopeful vision to supporters at Los Angeles’ Ambassador Hotel. “I believe that we can end the divisions in the United States,” the ascendent candidate declared. As Kennedy exited through the serving kitchen off the ballroom, 24-year-old Jordanian immigrant Sirhan Bishara Sirhan shot Kennedy in the head. A day later, and less than five years after his brother John was killed in Dallas, Bobby Kennedy was dead.
As Kennedy’s bodyguards tackled Sirhan, the assassin declared, “Let me explain! I did it for my country.” In the following weeks, the incarcerated Sirhan’s motives became clearer. Born in Jerusalem, his childhood was marred by violence stemming from the Israel-Palestine conflict. As a child, he had witnessed an Israeli army truck, swerving to avoid gunfire, strike and kill his older brother. He came to the United States as a 12-year-old, but he retained his Jordanian citizenship as a gesture of his continued solidarity.
Sirhan’s attack on Kennedy, then, was motivated directly and symbolically by geopolitical angst. Sirhan was obsessed with the fact that Kennedy, a firm supporter of Israel, had repeatedly asserted during the campaign that he would arm Israel with 50 Phantom jets if elected. The shooting also came on the first anniversary of the Six Day War, in which Israel claimed the contested Golan Heights and East Jerusalem from Jordan.
Sirhan was initially assigned a public defender, but he contacted the chief counsel of the American Civil Liberties Union, A.L. Wirin, to let him know that he’d rather have private attorneys. Wirin set to work.
During the tumultuous fall of 1968, as Richard Nixon rocketed toward the White House, a team of defense lawyers began to coalesce around Sirhan, conscious of the difficult task ahead in defending not only a killer of a beloved politician, but a killer with a clear revenge narrative.
Leading the defense was Grant Cooper, most famous for his 1960 defense of Dr. R. Bernard Finch, a wealthy Los Angeles physician accused of conspiring with his young mistress to murder his wife. Cooper spiritedly poked holes in the forensics evidence and obtained two mistrials.
Joining Cooper was Russell Parsons, another Californian who in 1955 wrote an appeal arguing for overturning the conviction of his client, a robber named Charles Cahan, because investigators illegally bugged his Los Angeles apartment. Parsons successfully argued his appeal before the California Supreme Court. “The Cahan Decision” helped pave the way for the 1961 Mapp v. Ohio Supreme Court ruling, which federally outlawed using illegally obtained evidence.
Alongside the influential Cooper and Parsons was the 66-year-old Emile Zola “Zuke” Berman. Berman’s parents had fled Russia in the 1890s, settling first in Paris. They were inspired by French novelist and lawyer Emile Zola’s impassioned defense of Captain Alfred Dreyfuss, a Jewish intelligence officer charged with treason in a case that sparked a society-wide debate about anti-Semitism. Berman’s parents eventually immigrated to the Lower East Side, where Berman was born in 1902.
Berman’s most famous case was the 1956 defense of Marine Drill Sergeant Matthew C. McKeon, who led—while allegedly drunk—a “recruit death march” in Parris Island, South Carolina, in which six recently-enlisted Marines drowned in a stream. Berman convinced Marine Corps commandant General Randolph Pate to testify in favor of McKeon’s tough methods, and the Sergeant ultimately spent only three months in the brig.
Cooper, Parsons, and Berman decided to focus the trial on Sirhan’s “diminished capacity” at the time of the killing. This defense was a specific California categorization that argued intoxication or mental distress also deserved consideration—like the more serious claim of insanity—in determining guilt. Ten years later, “diminished capacity” would also be the cornerstone of the so-called “Twinkie defense” of Dan White, the San Francisco City Supervisor who killed his openly gay colleague Harvey Milk and San Francisco Mayor George Moscone, and whose lawyers argued that his consumption of sugary foods led to his homicidal rage.
After weeks of procedural bickering, Sirhan’s trial began in earnest in the Los Angeles County Superior Court on Valentine’s Day, 1969. Berman offered an opening statement defining the defendant’s unstable state: “Sirhan Sirhan is an immature, emotionally disturbed and mentally ill youth,” Berman began, before Sirhan stood up and shouted, “No, no!” Parsons, talking to the press at day’s end, explained that Sirhan, “like most mentally ill people, doesn’t like to be told he’s mentally ill.”
Following Sirhan’s outburst, Berman argued that a series of bad breaks—from his traumatic childhood in war-torn Jerusalem, to a head injury he sustained after being thrown from a horse while unsuccessfully training to become a jockey—had left Sirhan reliant on mysticism and paranoid fantasies.
Berman argued that Kennedy’s declarations about the Phantom fighter jets had sent Sirhan into a series of trances that had left him confused about his basic identity: “From that point on back to mysticism went Sirhan. He concentrated in front of a mirror in his own room and thought about Senator Kennedy until at last he saw his own face no longer, but that of Senator Kennedy, in the mirror.”
Over the following weeks, Berman oversaw the testimony of multiple psychologists who agreed that Sirhan was “incapacitated” in the lead-up to the killing. Berman also stressed that Sirhan’s alcohol intake on the night of the incident—somewhere in the realm of four Tom Collins gin cocktails—deeply affected Sirhan, who usually didn’t imbibe.
Newsday’s Bob Greene argued that the defense’s approach amounted to a new chapter in American legal history: “His is the first assassin’s mind in the history of modern psychiatry to be dissected on the witness stand.”
In addition to Berman’s passionate investigation of Sirhan’s mental state, the lawyer also routinely hugged Sirhan’s anxious mother, Mary, after days in the courtroom. He explained the ritual to the New York Times: “I have to show her I’m with her. I’m here fighting for her son’s life, and I want her to know that we have a chance.”
Despite Berman’s best efforts, his arguments for Sirhan’s “diminished capacity” were undermined by the political tensions inherent in the case. Even before the trial began, Berman faced relentless press questions about the role of Israel—and of his own Jewish faith—in the trial. “This will not be a trial of the rights or wrongs of the Mideast conflict or of U.S. foreign policy,” he reassured Newsday shortly before the trial began. “We intended to deal with the effects of the war on Mr. Sirhan, not the issue of war itself.”
This was more easily said than done. In the early days of the trial, Mary Sirhan became close with a young Arab American lawyer, Abdeen Jabara, who argued that Sirhan should focus on his grievances with Israel rather than on his mental state. Jabara questioned Berman’s inclusion on the defense team given his Judaism: “Consciously or unconsciously I think it would be very difficult for a Jew to present some of this,” Jabara told the press as the trial began.
Sirhan did not help to keep Israel out of the trial when he took the witness stand in early March. During his second day of examination on March 5th, he launched into a 30-minute tirade against “goddamned Zionists” and accused President Johnson of drawing down War on Poverty programs while simultaneously sending “$370,000,000 cold cash…to the Jews in Jerusalem.”
“Where is the justice involved, sir?” Sirhan asked Cooper from the stand. “Where is the love of the underdog? Israel is not the underdog in the Middle East, the Palestinians are. That burned the hell out of me.” Sirhan reminded Cooper that he “must understand that the whole idea of Zionism is more inimical to me than Communism is to you.”
“Boy, am I going to catch hell in New York today,” Berman told reporters during a noon recess, in response to increasing criticisms levied at him by fellow Jews for his defense of Sirhan. In other words, Berman was processing vitriol from both Arabs and Jews.
The jury and the Court found the dueling defenses of political conscience and diminished capacity unconvincing. On April 17th, 1969, they found Sirhan guilty of first-degree murder, and he was sentenced to death six days later.
After the trial, Berman continued to defend his role. In a May 2nd, 1969 interview with the Jewish newspaper The B’nai B’rith Messenger’s Trude Feldman, Berman said, “The fact that I am Jewish cannot enter into my professional responsibility, and it had nothing to do with the Sirhan case. I am a trial lawyer and I cannot be governed by what other people think while I’m attempting to save a life.” He continued: “I have a passion for the notion that once a man’s rights are tampered with, trifled with, or ignored, that all men’s rights are in jeopardy.”
Berman stressed to Feldman that he spoke at conferences for the United Jewish Appeal and the Bonds of Israel, and that he was a member of the Federation of Jewish Philanthropies. “I don’t know what it is to be anti-Zionist, and I don’t consider myself an anti-Zionist.”
At the end of the interview, Feldman asked Berman what he had learned from the trial. “How deep hostilities do run,” Berman replied.
Sirhan’s death sentence was eventually changed to life in prison. He remains behind bars after California Governor Gavin Newson denied a near-parole in January amid a sizable controversy surrounding his potential release. While Sirhan remains in the headlines, Berman’s legal work for his famous client has been largely forgotten. At a moment when due process and legal defenders are so deeply under fire, it may serve us all to remember Berman’s work.
For an intriguing look at the cultural impact of Bobby Kennedy’s assassination, check out Ed Sanders’ 2017 epic poem and graphic novel, Broken Glory: The Final Years of Robert F. Kennedy.
And head to the Twitter account of author and Now & Then Editorial Producer David Kurlander for supplemental archival threads on each Time Machine piece: @DavidKurlander.
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