emile Zola Berman, 78, a trial attorney who gained national fame in the mid-1950s defending a Marine Corps drill sergeant and was a defense counsel for Sirham Sirham, slayer of Robert Kennedy, in the late 1960s, died Friday in a nursing home in New York City after a stroke.
Mr. Berman was asked to join the Sirhan Sirhan defense by Grant B. Cooper, chief defense counsel for Sirhan. In his opening statement, Mr. Berman called Sirhan "immature, emotionally disturbed, and mentally ill." The attorneys defended Sirhan on the unusual grounds of "diminished capacity," conceding that he killed Kennedy but "did not have the mental ability to give mature and rational consideration to the act of which he is accused."
On April 17, 1969, the jurors found Sirhan guilty of first degree murder. Another jury, six days later, sentenced him to the gas chamber. The death penalty was abolished in California before the sentence was carried out.
Mr. Berman defended Sirhan without charge. Asked how he could defend such a man, Mr. Berman replied, "I'm not defending his crime, only his rights. The worst cases make the best law, and this one represents everything I've been working for all my life. Sirhan is a symbol of every man's right to a fair trial and this right needs constant reinforcement by people qualified to do it."
Mr. Berman came to national attention in 1956, in another case he took without charging a fee, when he helped conduct the defense of Marine Staff Sgt. Matthew C. McKeon, a drill instructor at Parris Island, S.c. McKeon was accused of causing the death of drowning of six Marine recruits during a disciplinary night march. A court-martial prosecutor charged that McKeon had been drinking the day of the march and knew that some of his recruits could not swim.He was charged with culpable negligence leading to manslaughter.
Mr. Berman sought to establish that the enforced night march was simply part of the Marine Corps tradition of hard training. He introduced evidence that McKeon was one of the best-liked drill instructors, that the water through which the Marines were marching was not very deep, and that the amount of alcohol the sergeant had consumed was small.
Among the witnesses Mr. Berman called was retired Lt. Gen. Lewis (Chesty) Puller, who at that time was the Corps' most heavily decorated officer alive. Puller testified for McKeon, as did the Corps commandant, Gen. Randolph McC. Pate, who had originally ordered the court-martial but said on the witness stand that the charges against McKeon were excessive.
Robert S. Bird, covering the trial for the old New York Herald Tribune, wrote that in getting Gen. Pate to testify for McKeon, Mr. Berman had "scored a triumph that should go down in legal annals." McKeon was convicted only of simple negligence and drinking on duty, and allowed to remain in the Marines.
Mr. Berman was a native of New York City and a 1923 graduate of New York University. He received his law degree from that school a year later. He was admitted to the New York Bar in 1925, and rapidly carved out a reputation for himself as a leading attorney of negligence cases, much in demand by both insurance companies and plaintiffs. He retired from his New York law practice in 1972.
In the same year he defended McKeon, Mr. Berman persuaded a New Ork jury to award $350,000 to a woman who had been struck and crippled by a city police cruiser. It was the largest award ever made against the city at the time.
Survivors include his wife, Virginia, of New York City and Westhampton, N.Y.; two children, a brother, and a sister.