Reclaiming History (327 page)

Texas utilizes the main rule for insanity in the nation, the M’Naughten “right-wrong” test (stemming from the 1843 English case of the
Queen v. Daniel M’Naughten
), which provides that a defendant is not criminally responsible for his act and is legally insane if at the time of the act he was laboring “under such a defect of reason from a disease of the mind as not to know the nature and quality [interpreted as meaning “consequences”] of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong.” The seminal question for Belli was, what “disease of the mind” did Ruby have that caused him not to know that what he did was wrong? Belli had Ruby examined by psychiatrists, psychologists, and neurologists in late December at the Dallas county jail. The psychologist, Dr. Roy Schafer from Yale University, told Belli in his January 7, 1964, report that a battery of tests on Ruby indicated “the presence of brain dysfunction on a
physical
basis [i.e., Ruby had
organic
brain damage, satisfying the “disease of the mind” requirement of M’Naughten
if
it could be connected up with his act of killing Oswald]…His test responses are very similar…to those obtained from patients who have psychomotor seizures…[and] could also be those of a person with a history of traumatic head injuries or encephalitis.” Schafer recommended an electroencephalographic (EEG) test, which measures fluctuations in the electrical activity of the brain, and a neurological examination.
¹⁸

The EEG and neurological findings of Dr. Martin Towler of Dallas were that Ruby was “suffering from a seizure disorder [that] most accurately falls into the category of a Psychomotor Variant.” Dr. Frederic Gibbs, a Chicago neurologist who was considered to be the leading pioneer in the science of electroencephalography, reviewed Towler’s EEG recordings, agreed with Towler, and said that Ruby’s brain waves were “common in epileptics.” When a psychiatrist, Dr. Walter Bromberg, concluded that at the time Ruby shot Oswald he was acting in a “fugue” state or temporary blackout triggered by depression and rage, Belli had all the elements (or so he thought) of a successful medical defense virtually unheard of at the time—that when Ruby shot Oswald he was in the throes of a psychomotor epileptic seizure, a condition manifested by periods, usually transitory, in which a person, functioning only on learned reflexes, does not act like himself, sometimes engaging in agressive aberrational behavior, and thereafter cannot remember what he did.
*

It should be noted that in the vast majority of M’Naughten insanity defenses, defense attorneys do not contend that their client didn’t know what he was doing, only that he didn’t know it was wrong. Here, Belli was going to contend that Ruby was unaware of what he was doing (did not know “the nature and quality” of his act), which of course delivers one to the same destination—that is, you can’t know what you did was wrong when you don’t even know you did it.

Jury selection commenced on February 17, 1964, and after fourteen days in which 162 prospective jurors out of a potential jury pool of 900 were questioned, both sides finally agreed on 12. The all-white jury consisted of eight men and four women. Eleven of the twelve had seen the television footage of Ruby shooting Oswald. The jury was sequestered throughout the trial, each living in a small, windowless room above the county jail. Like all sequestered juries, they were insulated from outside news about the case. The only things on TV they could watch were movies and situation comedies. They could read newspapers and magazines only after they had been heavily censored. “Bo [the court bailiff] really cut up our newspapers tonight,” one juror complained in his diary. “I told him if he starts cutting out Ann Landers, I’ll go home.”
¹⁹

After Judge Brown denied the defense motion for a change of venue, the trial of the man who killed the man who killed Kennedy, started on March 4, 1964, with 370 reporters from fourteen countries, representing 111 news organizations, in attendance. The trial had been transferred from Judge Brown’s regular forty-eight-seat courtroom to the much larger (ninety-four-seat) courtroom of a fellow judge, Frank Wilson, to help accommodate the press. Only a few seats were left for the general public.
²⁰
The three networks asked Brown to let them televise the trial, and the publicity-loving Brown was all in favor of it. But the opposition came from many sources, including fellow judges, Dallas civic leaders, and the prosecutors. Still, Brown was inclined to let the cameras in. When a strongly worded statement released by the Board of Governors of the American Bar Association, which opposed and “deplored” the proposal to televise the trial, arrived on his desk,
²¹
Brown, who had hired Sam Bloom, the head of a Dallas advertising firm, to be his press adviser, reportedly said to Bloom, who had joined in the opposition, “But Sam, couldn’t you give me just one camera?” Bloom shook his head no, and the trial wasn’t televised—to everyone’s relief except Belli, who, like Brown, wanted the trial televised.
²²
*

Though Brown was pressured out of televising the trial (“We had a terrible time talking him out of that,” a member of the Dallas power structure would recall), that didn’t stop the limelight-seeking judge from allowing TV cameras into his home to film him on his sickbed when the flu kept him off the bench one day during the trial.
²³

The heart of the trial was the legitimacy, or lack thereof, of Belli’s defense for Ruby that he didn’t really know what he was doing when he shot Oswald. Ruby, of course, knew exactly what he was doing, and it had nothing to do with any hocus-pocus psychomotor epileptic seizure. But Ruby had long since become a pathetic,
*
bewildered, humiliated (by courtroom allegations he was crazy, had hurt Dallas and the nation, was possibly a latent homosexual, etc.), almost anonymous bystander to the trial proceedings, having turned over his defense to his high-powered attorneys. It was becoming obvious to many early on that just as his hero, JFK, was “dead in the center of his parade,” and Oswald “dead in the center of his custodians,” Ruby, chewing gum at the defense table in as serious a concentration as he was capable of, was “dead in the center” of his trial.
²⁴
And Ruby seemed to know, even before the trial started, how the little “class” he had always sought, but never achieved, in his dealings with the outside world would be irrevocably shorn away by his lawyers, who would portray him as someone who belonged in a mental institution. A Dallas artist sketching his courtroom portrait during pretrial hearings was asked by Ruby to not make the sketch “too rough” on him. “Leave me a little dignity,” he importuned the artist.
²⁵
Ruby’s prosecutor, Bill Alexander, would later say, “You could see Jack go down day by day during the trial. Belli was doing exactly the opposite of what he wanted. Jack knew that he was going to be found guilty of something. He didn’t mind being found guilty of killing Oswald because Oswald killed the President, but he didn’t want anybody to think that he was retarded, or mentally handicapped, or an insane person. Whatever else you can say about him, Jack had a lot of pride.”
²⁶

The Ruby trial took place on the second floor of the Dallas Criminal Courts Building in an old-fashioned courtroom with high ceiling fans, wooden benches, and spittoons next to each of the two counsel tables as well as the judge’s chair. During the prosecution’s case, it put on police witnesses who had spoken to Ruby after the shooting and who testified, in refutation of the defense theory, that Ruby had said things like “I hope I killed the son-of-a-bitch,” “I intended to shoot him three times,” and “Someone had to do it, you guys [Dallas police] couldn’t.”
²⁷
Most damaging of all was the testimony of one officer, Sergeant Patrick Dean, that in response to questioning commencing around ten minutes after the shooting of Oswald, Ruby said he “first thought” he’d kill Oswald “if he got a chance” when he saw him two nights earlier in the show-up room and he “noticed the sarcastic sneer on Oswald’s face.” Ruby added that he “wanted the world to know that Jews do have guts.”
²⁸

All of Ruby’s remarks were irreconcilable with the “fugue” state, temporary insanity defense Belli was propounding. And Ruby’s statement that he first thought of killing Oswald on Friday, two days earlier, showed premeditation and conflicted with the defense position that the shooting was a spur-of-the-moment act. Even though the defense, at the moment, was seeking a not-guilty verdict under the insanity defense, it still had available, as a fallback position, a verdict of murder
without
malice. Dean’s testimony, if believed, showed that Ruby premeditated the murder, helping to preclude any defense argument that the killing was without malice, which required that the killing result from a “sudden passion.” District Attorney Wade would later say that Dean’s testimony about premeditation “was probably the most harmful” testimony of all to Ruby’s defense at the murder trial.
²⁹
*

But it was hard for the prosecution to get around what was obvious to virtually everyone—that there was a screw loose somewhere in Ruby, that he was mentally unsound. Even a prosecution witness, Garnett Claud Hallmark, the general manager of Allright Auto Parks where Ruby had parked his car for three years, testified that he “sometimes wondered about Jack’s sanity.”
³⁰
And William Serur, who had known Ruby well as a friend for over ten years, testified for the defense that he “was sure” that Ruby was “suffering from some form of mental disturbance.”
³¹
After another witness at Ruby’s trial (who had testified to Ruby’s bizarre behavior, such as sometimes getting up from their dinner together and leaving for no reason whatsoever) was asked if he had “formed any type of opinion as to Jack’s mental state?” he answered, “Well, with apologies to Jack, I’ve always considered him…,” at which time a prosecution objection to the witness’s continuing his obvious answer was sustained by the judge.
³²
No matter. The message was clear. Jack’s needle wasn’t quite pointing north. And another witness at the trial who was a close friend of Jack’s said, during cross-examination by the prosecution, that Ruby’s “crazy” behavior the past several years caused him to believe he was “a sick man of some type.”
³³
†

The defense case, as expected, was primarily medical. Belli had his psychologist, Dr. Roy Schafer, testify at the trial that Ruby’s tests showed he had “organic brain damage” and that Ruby had psychomotor epileptic seizures where he acted in a fugue state. However, on cross-examination, he only speculated that Ruby “might have been” (not was)
in
such a fugue state at the time he shot Oswald, and said he had no opinion as to whether Ruby knew right from wrong at the time he shot Oswald.
³⁴
The defense’s EEG expert, Dr. Martin Towler, testified that from his reading of Ruby’s abnormal EEG he concluded that Ruby was subject to a “type of seizure disorder that we refer to as a psychomotor variant epilepsy,” but, again, he formed no conclusion as to the heart of the defense case, that Ruby was
in
such a state at the time of the shooting.
³⁵
So the defense presented testimony that Ruby had organic brain damage and psychomotor epilepsy. But that wasn’t enough to carry the day.

Belli’s intended star psychiatric witness was supposed to be Dr. Manfred Guttmacher, a prominent psychiatrist and leading expert on criminal psychology from Baltimore. Belli would later write that Guttmacher was supposed “to crown our medical testimony…pull it all together”
³⁶
by testifying that Ruby was
in
a psychomotor epileptic seizure
at the time
of the shooting, thereby qualifying him as not knowing right from wrong or the nature and consequences of his act under the M’Naughten test for insanity. Guttmacher, in fact, told the Dallas jury that at the time of the shooting, Ruby was under “tremendous emotional impact” from the assassination, and the “deep, heavy, hostile, aggressive part of his makeup…became focused on [Oswald].” Guttmacher concluded that “I don’t think that he was capable of distinguishing right from wrong and realizing the nature and consequences of his act at the time of the alleged homicide…I think there was a temporary, very short-lived psychotic episode.”

There was only one thing missing: no reference to the heart of Belli’s defense—that Ruby was
in
a psychomotor epileptic seizure
at the time of the killing
. Ruby’s “disease of the mind” under M’Naughten was
not connected to
his act of killing Oswald. Indeed, on cross-examination by Bill Alexander, Guttmacher testified, “I think he has psychomotor epilepsy…I [have] not maintained he was
in
a state of psychomotor epilepsy [at the time of the shooting].” Guttmacher had presented Belli with a memorandum on March 3, the eve of the trial, that said it was his belief “that it is scientifically unsound…to assert with absolute assurance that Oswald’s murder took place
while
Ruby was in an epileptic attack of some sort…What we have to develop is that Jack has a definitely abnormal and damaged brain [as evidenced by] the psychological tests of Dr. Schafer…and the definitely abnormal brain waves…There is abundant evidence in the medical literature that people with brain waves like Jack’s…are given to psychopathic-like behavior, particularly to irrational outbursts of aggression, often when under stress, which can or cannot be actual seizure attacks.”
³⁷
(Reportedly, Guttmacher went further, expressing the view that Ruby had exhibited too many indications of uninterrupted consciousness, that the shooting had been carried off too efficiently, with too little fumbling, for an epileptic seizure to be a real possibility.)

That Guttmacher could be so professional and objective in his assessment of Ruby makes his conclusion on the witness stand—that Ruby didn’t know that killing Oswald was wrong and didn’t even know the nature and consequences of his act (that he was firing a bullet into Oswald’s body that could cause Oswald’s death)—all the more incomprehensible. On cross-examination, Guttmacher said his “best diagnosis” of Ruby’s condition at the time of the shooting was that Ruby was “a mental cripple and was carrying on his shoulders an insufferable emotional load and, to use the vernacular, he cracked under it momentarily.” Belli would later say that he had hoped Guttmacher’s testimony would be the “highpoint of the trial.”
³⁸
One could say ironically that Guttmacher’s testimony was exactly that. But he delivered it in a big way not for the defense but for the prosecution. The inevitable question that presents itself, of course, is why would Belli base his entire defense on psychomotor epilepsy when he never had one single medical expert to testify that Ruby was
in
such a state at the time of the shooting?
*
(Dr. Walter Bromberg, the psychiatrist who had interviewed Ruby for eighteen hours prior to the trial, only testified that Ruby was “mentally ill” and had killed Oswald during an episode he called an “epileptic equivalent,” but studiously refused to say that Ruby had psychomotor epilepsy or that he was in an epileptic seizure at the time he shot Oswald.)
³⁹