by Lisa Pease
On February 20, out of the hearing of the jury, Cooper brought up an article that had appeared in the Los Angeles Times that morning, and moved, not for the first time, for a mistrial. The article was headlined, “Possibility of Guilty Plea by Sirhan Now Appears Remote.” While Judge Walker assured Cooper that the jury, which was now sequestered, would not see that article, Cooper had a different point to make. The article mentioned “everything that we said in chambers,” meaning, it could only have come from someone in that conversation. He was gently accusing the prosecution of leaking to the press.
“Well, let me say that I gave some of that information myself,” said Judge Walker. “I told them the plea had been offered and I had refused the plea, but that I would take a plea on first degree and that the jury could try the penalty.”
“I assign your Honor doing that is misconduct,” Cooper said, a comment he indicated was offered “without rancor.”
“Your Honor, now, I am representing a client and I feel that in fairness, please, I feel that your Honor should not have done it for the reason, first, that we asked that the remarks in connection with that were supposed to be sealed, and it was my understanding they were sealed, so this wouldn’t be made public. And there was discussion about making it known, which your Honor indicated at that time that it was not to be made known.”
Judge Walker wanted to move on, but Buck Compton spoke on the same issue. He was certain no one from the D.A.’s office had discussed the possible plea deal with the local Los Angeles Times reporter who sat just outside the D.A.’s office. But Compton was surprised that it was the Eastern press, specifically Newsday, and not the Los Angeles Times, which had broken the story first. Compton stated that four people from the New York Times and Time had asked him questions about California law. “In their questioning, they evidenced a great deal of knowledge about what had gone on in chambers before they came to see me. … The point I’m trying to make is that the Eastern press apparently has some source of information that is better than or equal to the Los Angeles Times, and we have no connection with the Eastern press….” Compton resented the implication that any information had come from the D.A.’s office. But perhaps the D.A.’s office had been tapped by someone—or some intelligence agency—back east?
Cooper had the “impression from a reading of the article” that the information had come “from Evelle Younger himself.” Cooper had a strong argument for a mistrial, but he didn’t press his advantage at all, saying only, “I have made my motion, if your Honor please, and I assume your Honor is going to overrule it.”
“I had the same story—the story was given to me,” said Judge Walker, “that your man, your investigator-writer, was the one who did it.”
“Kaiser?” Cooper asked.
“I don’t believe that,” the Judge assured Cooper, “but I’ll check it out.”
But Cooper wasn’t done. He was also upset by an appearance Compton had made on TV the night before. Compton brought up something that Cooper had objected to during questioning. The prosecution had tried to hint at Sirhan’s status as an immigrant, not a citizen, and the Judge had overruled it. “You said you were seeking to develop was the fact that he was an alien in possession of a gun. You shouldn’t have done that, because the very purpose of making an objection is to keep that kind of thing from the jury.”
Cooper added that even though the jury was sequestered, “when leaks occur, you don’t know how far the water will leak.”
Judge Walker offered to bar spousal visits in an effort to further protect the jurors from outside information, but Cooper said that would be “cruel and unusual punishment” to the jurors. In the end, not only did Judge Walker not recuse himself and declare a mistrial, he instead said that the transcript of this session, too, would be made available to the press. “It’s only a matter of your making a motion for a mistrial and my denying it,” Walker said.
“Then it spreads like ripples going out. Your very objective is defeated. It’s the only remedy that is available to us as lawyers—the very doing of it, if it’s going to be made public, is defeated. … May the record show we vigorously oppose this being made public, a matter of public record, until all the proceedings are over.”
Judge Walker asked what Compton thought. Compton felt it was important to leave it all on the record, an ironic note, given that a portion of conversation just prior to this had been conducted “off the record” in the official transcript, “sealed by the Court.”
“Your Honor, please,” Cooper begged. “In that connection with plea bargaining, it is always a secret matter.” But Walker had a strange sense of what should be kept secret and what should be made public in this case.
The next day, Judge Walker called both the prosecution and the defense to the bench to discuss another leak. Someone had leaked unedited transcripts to the New York Times and the Los Angeles Times. Rather than trying to find out who was leaking the court documents, Walker wanted to ensure that the other media were also then given transcripts, saying it was not fair for those organizations to have an advantage over the rest. But unedited transcripts also contained things that, upon editing, the Judge could seal, such as continuing discussions around a plea bargain. Walker’s behavior was bizarre in this matter. He seemed more interested in making the proceedings of the court public than he was in preserving the rights of the defendant. There may have been a method to his madness, as we’ll see later.
The strange figure of Michael Wayne received mention at the trial. Judy Royer, the secretary to the former Governor Pat Brown, told Howard that about one to two hours before the speech, she saw Sirhan in the anteroom behind the curtains of the Embassy Ballroom stage. She asked him to leave the area because he had no press or staff badge and had no reason to be there. She believed he exited into the Embassy Ballroom. She accurately described Sirhan’s clothing.
Cooper must have known that Royer had also spoken to Michael Wayne. He showed her a picture from Life magazine of Michael Wayne talking to Senator Kennedy in the pantry without explaining to the jury who he was.
“Is this not the individual you saw…?”
“No, it is not.”
“You’re sure of that in your own mind?”
“Yes, I know that person.”
Cooper said he had no further questions, but Howard said, “Well, there may be some questions, but we will wait, your Honor.”
As if taking his cue from Howard, Cooper said he did have another question for Mrs. Royer. Cooper apparently had read pantry witness Robert Klase’s statement. Klase overheard Royer talk to Michael Wayne. Klase told the LAPD that Wayne had told Royer “he had part of an autograph of Senator Kennedy and the Senator told him he would finish signing it when he came back through the kitchen. Judy made him leave the pantry area at that time.” Klase himself had shooed Sirhan from the pantry. Klase had not been called as a witness, probably because he said Sirhan had entered with a group of people, not alone.249 Cooper showed Royer the picture of Michael Wayne from Life magazine, People’s Exhibit 33, where Wayne was shown talking to Senator Kennedy on Kennedy’s way out to the stage to give his speech.
“Did you ever ask the individual that is in the photograph that is apparently talking to Senator Kennedy … to leave any portion of the area on the evening or night of June 4 or early morning hours of June 5?”
“Yes, I did, the pantry area.” Royer said she saw Wayne enter the pantry from the eastern double doors when the Senator was speaking.
Cooper asked why she had said she knew this person.
“I had seen him around political headquarters and rallies.” Was Wayne stalking Kennedy? As you’ll see in a later chapter, Wayne’s politics were the polar opposite of Kennedy’s.
Howard put Wayne’s name into the official record by asking Royer if the name “Michael Wayne” meant anything to her. “No, it doesn’t,” she replied.
Wayne came up again when Howard questioned the other shooting victims in the pantry. Ira Goldstein descri
bed how he had walked the length of the pantry from the west nearly to the east end. He turned back and walked west. About midway, Ira told the jury “I was stopped by an individual who asked me if I would like to trade press badges with him.” The individual had not been wearing the badge, but had taken it from his pocket. It was a green Kennedy press or staff pass. The man wanted to trade it for Ira’s “yellow Embassy Room press badge.”
Cooper showed Ira Goldstein the picture of Michael Wayne in People’s Exhibit 33 and asked if he had seen him before.
“Yes, sir. This is the person that I was speaking to about the press badge.”
Cooper, the lead defense counsel for Sirhan, had been given a gift. Here was a man who looked so much like Sirhan that witnesses had confused the two, who may well have been stalking Kennedy before the assassination, who had been loitering in the pantry just prior to the shooting, and who had been seen running out of the pantry suspiciously afterwards. But Cooper had rejected a conspiracy defense, so this information just hung out there, unexplained to the jury, who surely had no understanding of why Wayne had even been mentioned.
The most damning evidence for premeditation came from the prosecution’s least credible witness: Alvin Clark, the garbage collector who worked on Sirhan’s street. Fitts asked Clark to recall a conversation he had with Sirhan shortly after Martin Luther King’s death.
According to Clark, Sirhan “was upset somewhat” about King’s death. Clark claimed Sirhan asked him who he was going to vote for in the primary, and when Clark said Kennedy, Clark claimed Sirhan said “What do you want to vote for that son-of-a-bitch for? Because I’m planning on shooting him.”
Under cross-examination, Berman asked Clark if the FBI had visited him in September 1968 and asked him to testify. “Just answer yes or no,” Berman said. But Clark said something off script: “Well, I didn’t want to testify,” implying the FBI had put some pressure on him to do just that, a statement which caused Judge Walker to interject.
“I’ll tell you what you do, if you will, please. Listen to the questions that are asked of you, and then answer. Don’t volunteer.”
Berman got the “yes” he was looking for, and continued. “And did you tell whoever asked you that question that you would not want to take the oath because you hated Sirhan so much that you would do anything to see him convicted, did you say that?”
“Yes, I did.”
According to the FBI report of Clark’s interview, which was available to Sirhan’s defense, Clark had said he wanted to “kill” Sirhan.250 Berman could have done something with that information. Instead, he said, “I have nothing else.”
Fitts, on the other hand, wanted to ask one last question:
“Have you told the truth here, sir?”
“Yes, I have,” Clark replied.
Sirhan turned to Parsons and whispered, “He’s a liar.”251 When Sirhan took the stand for his own defense, he claimed Clark’s statement was “utterly false.”
And Sirhan was likely right. What neither Sirhan nor his defense team knew, or brought up if they knew, was that the LAPD had withheld critical information on Alvin Clark. According to the LAPD’s Daily Summary of Activities log for October 31, 1961, Lt. Keene reported the following:
Interesting development in the case of Alvin Clark, the Pasadena rubbish collector. The D.A. sent an ace investigator, Charles Lawrence, to re-interview Clark and establish better rapport (Clark’s been hard to get along with). Lawrence returned from Pasadena and reassured Howard that he and Clark were soul brothers and everything was fine. A short time later Clark called the Pasadena PD and beefed Lawrence, said he was being harassed by the D.A. and the police!! [sic] Clark has several prior arrests for ADW, burglary and child molesting and this would help explain his abrasive attitude.
It could also have explained the leverage someone in law enforcement may have wielded over Clark to get him to testify when he didn’t want to, and to perhaps tell an untruth to ensure he wouldn’t go back to jail again, that would have the added bonus of convicting the man Clark wanted to “kill,” believing him to be the one responsible for Robert Kennedy’s death.
The jury would never learn this important context.
On Friday, February 21, Judge Walker, the prosecution and the defense gathered in chambers again for what would prove to be a remarkable and disturbing session.
The first topic was yet another leak. The Los Angeles Times had run a page-one wire service story that morning headlined “Possibility of Guilty Plea by Sirhan Now Appears Remote.” Judge Walker asked around and was told the story had been written and filed by George Lardner, Jr. of the Washington Post, who had been in attendance for the trial. The Post and the Times jointly owned the wire service that ran the story.
The article focused, for the third time in just over a week, on the discussions around a guilty plea. The repetition seemed designed to prejudice not just the jury but the public at large. The report also made reference to psychiatric reports that had not yet been introduced into evidence.
Cooper and Judge Walker felt there should be an investigation to find Lardner’s source. Walker asked the City Editor who Lardner’s source was. But when the City Editor asked, Lardner said he would share the source if he could, “but I can’t.” Cooper believed the source was probably former OSS man and current District Attorney Evelle Younger.
“Well, it could only be two sources,” Judge Walker said. “It’s either the prosecution or the defense.”
“Well, there is a third one I wasn’t aware of until yesterday,” Cooper said, referencing the Judge’s admission to leaking court documents the last time such a story surfaced.
There was a fourth possibility no one appeared to consider. The CIA might have been tapping the Judge’s chambers as well. The CIA has been known to illegally spy on Congressional members, plant janitors, secretaries and gardeners at the White House, and bug rooms where lawyers discussed cases with their clients.252 It would be in keeping with the CIA’s activities then and now if they had been bugged Judge Walker’s chambers. However, given Evelle Younger’s OSS past, that was likely not necessary.
Cooper asked Walker where he got the report that Lardner had written the story. Walker told him to ask the District Attorney, Evelle Younger. Fitts said “we will invite investigation” to determine the source of the leak to Lardner.
Lardner was an interesting figure who was concurrently covering the trial of Clay Shaw in New Orleans, whom the District Attorney there, Jim Garrison, had accused of colluding in a CIA-sponsored plot to kill President Kennedy. The stories of the Sirhan trial and the Clay Shaw trial often appeared next to each other in newspapers.
In an odd twist, Lardner had talked to the man who could have been one of Garrison’s most important witnesses, David Ferrie, the very night that Ferrie either died, committed suicide, or was killed, depending on whose evidence you believe. The coroner reported that Ferrie died of a brain aneurysm, but given that he had just asked to speak in private to Jim Garrison, and given that there were suicide notes around, that Ferrie may have been forced to write or that may have been written for him, some suspected foul play. “I suppose it could just be a weird coincidence that the night Ferrie penned two suicide notes, he died of natural causes,” Garrison had said in his 1967 Playboy interview.253
Lardner had reported that “Ferrie was certainly living when I said good-bye to him Wednesday shortly before 4:00 A.M.,” but New Orleans Coroner Nicholas Chetta thought, based on the body’s condition, that Ferrie had to have been dead earlier than that.254
The CIA had reason to fear what Ferrie might have known or said. Ferrie, whose CIA alias was “Hugh Pharris,” had been involved in anti-Castro operations. He had been captured in a photo at a picnic with Lee Harvey Oswald when Oswald was training to fly in the Civil Air Patrol. (Interestingly, an acquaintance told me the CIA had attempted to recruit him when he himself was learning to fly with the Civil Air Patrol.)
In the last official memo from the Di
strict Attorney’s staff on Ferrie before he died, Ferrie expressed a desire to talk to Garrison alone and asked Lou Ivon of his office to call him. Ferrie said he wanted to look Garrison in the eye to see how serious he was about Shaw’s case. Ferrie said he didn’t believe the magic bullet theory. In short, Ferrie sounded like he was on the verge of confessing. Years later, one of Jim Garrison’s investigators, Lou Ivon, told Oliver Stone Ferrie did confess, which led to the memorable scene played by Joe Pesci in the film JFK. While some have disputed Ivon’s late-stage remembrance, the same parties have not disputed the final memo in which Ferrie asked Lou Ivon to talk to him and expressed a desire to meet with Garrison alone.
In any case, the CIA had a provable interest in Garrison’s investigation. The head of the CIA’s counterintelligence branch, James Angleton, appeared so concerned he had his staff do background checks on Garrison’s jurors, a move that might have been a first step toward jury tampering. The CIA was so concerned with Garrison’s case that they had asked their media assets in 1967 to do all they could to discredit those who came forward with “conspiracy theories.”255
It’s not surprising, then, that the journalist assigned to the Sirhan case from the Post was one whose reporting had been, on the other Kennedy assassination, favorable to the CIA’s version of events. It’s not surprising that same journalist would break a story that could only have come from a leak inside the D.A.’s office or the Judge’s chambers (or a wiretap).
Lardner, being the Post’s national security reporter, no doubt had sources in the CIA, as did nearly all national security reporters of prominence. Then as now, the CIA controlled which journalists got prime stories, helping to raise the most subservient to grand positions and helping to oust journalists who told too many of their secrets. San Jose Mercury News reporter Gary Webb learned this when he tried to tell the truth about the CIA’s role in Los Angeles drug trafficking. New York Times reporter Sydney Gruson, who had a history of dogging the CIA, learned this years earlier when Allen Dulles had him removed from his post in Guatemala so he could not report on the CIA’s coup about to take place there.256 Those who kept the Agency’s secrets were rewarded with leaks and scoops. Those who exposed the Agency’s wrongdoings were not.