A Lie Too Big to Fail

by Lisa Pease

  Kaiser presented Cooper a list of potential lawyers who could serve as a proxy until he could be more fully involved. From the list, Cooper picked Joseph Ball, who had been a senior counsel for the Warren Commission, as one of his first choices, but Ball wasn’t interested. Cooper didn’t know Luke McKissack, another name on the list (and a man who became Sirhan’s lawyer in later years). Cooper recognized the name Russell Parsons, however, and chose him. LAPD records note, without further explanation, that Parsons also went by the alias “Lester Harris,” perhaps from his days as a mob lawyer. Parsons, who was well past the “69 years” he joked he was to the press, agreed to help “the poor devil in trouble.”218

  Parsons brought in Michael McCowan to serve as his investigator. As an ex-LAPD officer, a former Marine and a former law student, McCowan seemed, on the face of it, a good choice.

  Kaiser also ended up as a member of the defense team in exchange for exclusive journalistic access to Sirhan so he could write a book. He agreed to share a portion of his book advance in exchange for this access. Curiously, in Tennessee, a similar pattern was playing out. William Bradford Huie was given exclusive access to James Earl Ray by his defense team in exchange for a share in the profit of Huie’s book.

  The final member to join the defense team was New York lawyer Emile Zola “Zuke” Berman.” Berman was the son of Russian-Jewish socialist revolutionaries who named him after the famous author Emile Zola who had exposed the unjust conviction of Alfred Dreyfus in his famous essay “J’Accuse…!” Berman had been an intelligence officer in the Army Air Corp’s China-Burma-India theater. And though he was not classified as a flying officer, he flew on missions in the Far East.219

  On the face of it, Sirhan had a powerful, experienced team to help him. In reality, however, McCowan was a convicted felon on parole who offered to serve as an informant to the LAPD on the Sirhan case,220 Berman had a drinking problem, and Cooper was facing possible disbarment after having been caught red-handed in possession of a stolen Grand Jury transcript during the Friars Club case.

  From the start, the defense team’s stated goal was simple: to get Sirhan a punishment less than death. They asked the court to appoint various medical and psychological experts to attempt to determine whether Sirhan had any physical or mental disability that led him to commit the act.

  The prosecution had exactly the opposite goal: to prove that Sirhan was of sound mind and body at the time of the assassination, that he was capable of distinguishing right from wrong, and that he willfully, premeditatedly committed the crime. They, too, needed psychological experts.

  There was also a third party that had an interest in this case that also had the goal of proving Sirhan sane: Arab nationalists. The Israeli-Palestinian conflict was about to explode, and some in the Arab community felt Sirhan, who was probably set to lose his life anyway, could be a spokesman for their cause. The Arab nationalist element also wanted to prove Sirhan sane to emphasize the political nature of his act.

  Not one of these parties could claim “getting to the bottom of what happened” as a motive. That’s not how our legal system works. It’s all about which facts support one’s case, not which facts inform the historical truth of the event.

  The problem for all parties was that no obvious motive presented itself. Juries are persuaded more by stories than facts. So both the prosecution and the defense needed to come up with a compelling narrative. If Sirhan’s motive were publicity, why did he claim no memory of the crime? If it was a political act designed to make a statement against U.S. support for Israel, why did Sirhan not say anything about that at the time, or shortly thereafter? Why did it take his defense team, essentially, to suggest that angle? Sirhan had no reason to pretend to have forgotten. He was sure to be in jail for life and likely to be put to death. If he had a motive, why not reveal it now?

  In a notebook seized from Sirhan’s bedroom after his arrest, across one particular page was scrawled, over and over, down nearly the entire page, “RFK must die. RFK must die.” Why? The prosecution would argue that was proof of deliberate premeditation of the crime. The defense would argue the repeated writing showed Sirhan was mentally ill.

  Sirhan could not remember writing that notebook entry, which was dated May 18. Oddly enough, on May 18, tourists in Israel heard that a radio report claimed Senator Robert Kennedy had been shot. Had a plot that had been expected to succeed failed that day?

  John Lawrence, the director of Federated Americans against Israeli Racism, an advocate for Arab causes and an anti-Zionist, wrote Sirhan a letter, which Sirhan received on June 10, 1968, urging Sirhan, in essence, to claim his act as a response to the injustice facing Palestinians at the hands of the Israelis but backed by the American government. Lawrence told Sirhan that Robert Kennedy had encouraged the U.S. to send 50 jets to Israel, which Lawrence characterized as “jet bombers.”

  When Kaiser asked Sirhan why he had written “RFK must die,” Sirhan had said he must have done it in response to a documentary he saw which mentioned the bombers. The problem was, the entry in the notebook was dated May 18. The statement itself was not made until May 26, and was not televised or written in local papers. News of the statement may have been heard over the radio, but regardless, the statement, however Sirhan first learned of it, came nearly a week after the notebook entry. The first article Kaiser found that contained this information was in the New York Times of June 7, in the article Lawrence clipped and sent to Sirhan.

  Sirhan was disturbed by the notebook entries when he was first shown them. “All this repetition!”221 Sirhan exclaimed. Even the existence of the notebook made no sense to Sirhan in the context of a supposedly premeditated act. “I don’t understand. Why did I leave the notebook behind?”

  Having no memory of the crime, Sirhan grappled with his options: either he killed Kennedy willfully, against his own morality, or he had somehow killed Kennedy unwittingly, a notion that frightened him. Perhaps he did what most people would do: he chose to believe he had some strong reason for committing this crime. Sirhan said at one point, he’d rather “die and say I killed that son of a bitch for my country”222 than claim he was mentally unbalanced. To that point, Sirhan urged his lawyers to plead him guilty, an option his lawyers refused initially because it would leave him no recourse for any appeal later.

  Three of the defense team members suspected something more was at play. Parsons, Berman and Kaiser expressed at different times the possibility that someone else was involved. But Cooper had no intention of mounting a defense by claiming there was a conspiracy involved. In the end, both the prosecution and the defense bent over backwards to minimize the jury’s exposure to any evidence of conspiracy.

  The FBI and LAPD were also puzzled, as they had trouble finding people who could testify to the kind of rage that’s usually associated with killers. They tried hard to find someone who would claim Sirhan was a violent person. But nearly everyone described Sirhan as polite, respectful, and friendly.

  Jack Davies, a former employer of Sirhan’s when Sirhan worked at a gas station, told the FBI that “Sirhan was an excellent worker and never caused any trouble around the station, was friendly to the customers, and seemed dedicated to his work. … He advised that Sirhan was very polite to the customers, attention, showed an outstanding personality, and one of the best employees that has worked for him….”223 Sidney McDaniel, who worked with Sirhan under Davies, also said “it was hard for him to believe that Sirhan could do this.” Yet another employee at this station, Chester Yashuk, noted that when a security guard who collected the money at night was overly profane, Sirhan asked him to tone it down. The guard tried to pick a fight with Sirhan, but Sirhan “became very meek and would not fight this guard.”

  Another former employer, Clarence Copping, said Sirhan was “an outstanding employee, an excellent worker,” and that “at no time did Sirhan ever express any of his political views or nationalistic leanings in any manner.” Copping, like nearly everyone the LAPD and FBI inter
viewed, said that “when he was notified that Sirhan was the person suspected of shooting Senator Kennedy, it was very hard for him to believe.” Wayne Brantley, who worked with Sirhan while he was working for Copping, said Sirhan “did not indicate any emotional disturbance over the situation in Israel, and no particular animosity toward any individual or group.”

  William Beveridge, who had employed Sirhan as a part-time gardener a few years earlier, also said Sirhan was “quiet, well mannered, and studied very hard. He did not discuss politics and did not in any way express resentment toward any individual or group. He appeared to like the United States and enjoyed living in this country. At no time did he display any temperament or show violence.”

  When Henry Peters, a man who had worked with Sirhan at a health food store in Pasadena and who tutored Sirhan on the Bible in Sirhan’s home, whom his mother said was the only “friend” Sirhan invited home in the months prior to the assassination, was asked by Hernandez about Sirhan, Peters said, “I cannot say anything against him. He was a really nice boy.” Asked if he had ever seen Sirhan express a temper, Peters said, “I’d have to lie.… No, he didn’t. … We were just dumbfounded….” Sirhan had a run-in with his employer at the Pasadena store, but Peters sided with Sirhan in the dispute. These are not cherry-picked examples. These represent the vast majority of comments people made about Sirhan.

  You can cherry-pick a few examples of people who saw Sirhan in an angry state. The one topic that definitely animated Sirhan was discussing the Palestinian-Israeli conflict, which had erupted into what became known as the Six-Day War in 1967. But even in those animated discussions, no one ever indicated that Sirhan’s rage ever remotely rose to a level that indicated a capacity to kill.

  Sirhan’s legal team sought help from mental health professionals to attempt to determine, after the fact, his mental state at the time of the shooting. There are five possible explanations for Sirhan’s claimed memory loss, and these are not mutually exclusive:

  1. He had physical brain damage that prevented the physical recording or recall of that memory.

  2. He was lying.

  3. He was drunk or drugged.

  4. He had a psychological impairment that prevented the recording or recall of that memory.

  5. He suffered from post-hypnotic amnesia. People who have been hypnotized to a deep stage often have no memory of what transpired under hypnosis. This is not true of those who have been only lightly hypnotized, who remember everything that happened under hypnosis.

  Dr. Eric Marcus, appointed by the court to examine Sirhan, found there was no abnormal brain activity that would indicate any physical damage. And neither the defense nor the prosecution could prove Sirhan was lying regarding his memory loss. Even Sergeant Jordan, who had interviewed Sirhan for a long time after his arrest, had told another officer he was convinced Sirhan was being truthful to the facts he could remember. Similarly, Sirhan’s defense team could see how anguished Sirhan was by his lack of recall. It did not make sense that he was making up a memory loss as a defensive technique.

  Neither the defense nor the prosecution could successfully argue that Sirhan was under the influence of alcohol or drugs at the time of the shooting (although the defense team would try), as the LAPD had convincingly ruled that out. LAPD Chief Reddin had told the media at the initial press conference after Sirhan’s arrest that they had “definitely” ruled out the possibility that Sirhan was under the influence of alcohol or some other substance. And not one witness mentioned alcohol on Sirhan’s breath, slurred speech, bloodshot eyes, or any other of the normal indications of alcoholic intoxication.

  That left only two options—that Sirhan either was psychologically impaired or had been hypnotized. Ironically, the explanation that fits the evidence the best is also the one that sounds the craziest to a layperson: that Sirhan was under hypnosis, a point to which we’ll return in a later chapter. But if Sirhan had been hypnotized by an outside party, that would indicate a co-conspirator, and as we’ve already seen, neither the defense nor the prosecution had a motive to explore a conspiracy and strong reasons not to. So from a practical standpoint, that left both sides with only one real choice: that Sirhan was mentally impaired in some way. This, then, became the sole point of the trial. Was Sirhan so crazy he could not be held accountable for his actions? Or was he only partially impaired, and therefore capable of legal premeditation? To answer that question for their respective cases, the defense and the prosecution hired psychologists to examine Sirhan.

  Showing premeditation was the prosecution’s primary goal. To that effect, they focused on Sirhan’s activities at the gun range earlier in the day. They wanted to paint a picture of a would-be assassin practicing for his eventual target.

  But one point about the firing range episode bothered LAPD Chief of Detectives Houghton. Not one of the more than 40,000 shell casings the FBI gathered from the firing range had been matched to Sirhan’s gun. As Houghton wrote in his book Special Unit Senator, shell casings are “branded with the indentation mark of the firing pin, a brand as unique and infallible in matching spent shells to the guns which fired them as fingerprints are in identifying people.”224 So it should have been an easy matter to find at least one shell that could be definitively matched to Sirhan’s gun. That no match had been made concerned Houghton enough to discuss it in his daily log:

  One hole that has been overlooked that should be checked was discovered in this reading. The FBI, within a day or two after the Kennedy assassination, sent agents to the Pistol Range in San Gabriel and they gathered some 40,000 shell casings which were forwarded back to the FBI Crime Lab. They threw up their hands, and at our request, the brass was sent back to us. Wolfer reports he examined all of these casings and could not connect any of them to Sirhan’s gun. This means that if Sirhan shot several hundred rounds at the San Gabriel range, either he took the brass with him or someone else picked it up. Neither of these conclusions appears at this time to make sense. More investigation is needed. There is a possibility that Wolfer really did not examine all of this brass (this should be checked) or that the FBI still has brass in Washington (this should be checked.)”225

  A few years later, Houghton wrote that Wolfer really did check the shells, but was unable to find a match.226 An LAPD progress report states Wolfer examined “37,815 shell casings” but could not match even one to Sirhan’s gun.227

  Despite the autopsy report having been completed just days after the shooting, the LAPD did not provide a copy to the defense team until November of 1968, when the trial was supposed to begin. In retrospect, the LAPD kept a tight hold on the autopsy report for obvious reasons. If you put the witness statements and the autopsy report side by side, it is clear Sirhan was not standing where the shooter had to have been. All the witnesses put Sirhan in front of and facing Kennedy. All the bullet wounds in Kennedy came from behind him. Perhaps the LAPD hoped Cooper and his team wouldn’t have time to read the report before the trial. But since Cooper was still wrestling with his own legal troubles, the trial was delayed until January.

  The delay gave Kaiser time to read and comment on the report. Kaiser told me he wrote a memo to Cooper explaining that there was a serious issue with the distance. All the witnesses who saw both Sirhan and Robert Kennedy together placed Sirhan’s gun muzzle, on average, at about three feet from Kennedy. But the autopsy report showed that the four shots that hit Kennedy—three that entered his body and one that passed through the top of the right shoulder of Kennedy’s jacket without entering his body—were all shot from not more than six inches behind him, with the fatal shot coming from a distance of not more than one inch. Cooper simply ignored this evidence, however, as he did all evidence that might have pointed to conspiracy.

  Meanwhile, Sirhan’s defense team was still trying to construct a plausible motive. In an attempt to get Sirhan to remember the events of the pantry, Bernard Diamond, a psychiatrist and assistant Dean of Phrenology at the University of California at Berkeley, put Sirha
n under hypnosis in a series of meetings to attempt to get Sirhan to reenact the events of the pantry. But even under hypnosis, Sirhan failed to remember exactly what had happened, despite what, as we will see later, were extremely leading suggestions.

  Diamond also noted that Sirhan evinced great emotional distress when his childhood in Israel was discussed. Sirhan had lived in an area that received heavy bombing during the 1948 Arab-Israeli conflict that ended with the creation of the new state of Israel. A sensitive young boy to begin with, he had witnessed heinous atrocities that had left permanent scars in his psyche. This, then, over Berman’s objections, became the defense’s case: the shooting was an act of temporary insanity, inspired by Kennedy’s support for sending bombers to Israel.

  Cooper did something strange as the trial approached. Normally, the medical and psychological examinations of a defendant are kept private. According to California law, the prosecution’s psychiatrist could only comment on the defense witnesses’ presentations in court and are not allowed to examine the defendant directly. This is to protect the defendant’s privacy. But Cooper decided that Sirhan was so obviously disturbed that the prosecution’s psychiatrist, Dr. Seymour Pollack, would clearly see that. To that end, Cooper staged a meeting on February 2, 1969 of all the medical and psychiatric personnel who had examined Sirhan so they could exchange notes and perhaps reach a common verdict. It was a hell of a gamble. If they all agreed Sirhan was crazy, perhaps a trial could be avoided and Sirhan unanimously recommended to a mental institution. That would guarantee he would not be put to death, and given that that appeared to be the defense team’s sole goal, that makes some sense. But if Cooper’s gamble went awry, it could set the stage for a death penalty verdict. To the dismay of all the participants, Pollack refused to offer his conclusions as to Sirhan’s state, saying that he had not yet made up his mind.