Reclaiming History (329 page)

I, of course, am not in a position to pass judgment on the merits of Belli’s charge, but one thing is clear. As Belli points out, in the early 1960s Dallas was a “city noted for aggressive, white, Protestant narrow-mindedness,” a city not known “for its racial tolerance.”
⁵⁸
Anti-Semitism was not uncommon, and although this probably is a complete coincidence, my research showed that for the first two days after Ruby shot Oswald, all of the many captioned articles on the case in the
Dallas Morning News
, the main establishment paper, referred to Ruby as “Rubenstein” (e.g., “Rubenstein at [
Dallas Morning
]
News
at Time of Shooting,” “Any Oswald-Rubenstein Tie in Dallas Sought by Police”), whereas the evening paper, the now-defunct
Dallas Times Herald
, continued to refer to Ruby as everyone else always has, “Jack Ruby.” Since Ruby legally changed his name in 1947 from his birth name of Rubenstein to Ruby, this throws into question the motivation behind the prosecution’s decision to resurrect the name Rubenstein for the Dallas jury by having the grand jury indict “Jack Rubenstein, alias Jack Ruby,” which, since Ruby had changed his name, was legally incorrect.

Bill Alexander has his own view on how Ruby could have avoided a sentence of death (and as the lead trial prosecutor, Alexander has a better handle on the issue than perhaps anyone else). “A local lawyer,” Alexander told me, “would have said, ‘Judge, this will be short. I only have one witness, the defendant.’ After calling Ruby to the stand, the questions would have gone something like this: ‘Your name?’ ‘Jack Ruby.’ ‘You are the defendant in this case?’ ‘Yes.’ ‘Jack, you’ve heard all the police testify in this case. Is what they said substantially true and correct?’ ‘Yeah, pretty much.’ ‘You did really kill that feller?’ ‘Yes.’ ‘This gun here, state’s exhibit 1, is that your gun?’ ‘Yes.’ ‘Is that the gun you killed him with?’ ‘Yes.’ ‘Whatcha do it for, Jack?’ ‘He killed my president and was smirking at us.’ ‘Well, Jack, whataya think this jury oughta do with you?’ ‘I don’t know, but please don’t give me death. Whatever they think is right, I’ll take.’”

Alexander asks, “Now how in the hell do you cross-examine someone like that?” I asked Alexander, “If, in fact, Ruby had presented such a defense, would you and Wade still have sought the death penalty against him?” I realized the moment I asked the question, that I really had no right putting him on the spot like this. Alexander paused for a few moments, then said, “Yeah, we would have done it, but in a left-handed sort of way. We would have told them, ‘Death is an option, but we’re not demanding it.’”
*

I asked Alexander the obvious question—why did the jury come back with a verdict of death? Just because Ruby’s lawyers used the wrong defense, why hold it against Ruby? The facts were the same—Ruby killed Oswald in a state of rage over Oswald’s having killed Kennedy, and certainly, Ruby did not want death. “Belli just dared that jury to give Ruby the death penalty,” Alexander replied, “and they didn’t like that, and they didn’t like Belli either.” Alexander said that from the moment Belli arrived in Dallas, he had displayed a condescending attitude with “nasty little remarks” about the city and its people,
†
and there was “no doubt about it” that Belli’s demeanor, flashy dress, and attitude “turned the jury off.”

“Are you saying,” I asked Alexander, “that the jury took out their contempt for Belli, and the defense he presented, on Ruby?”

“Yes, to a certain unconscious extent I think they did.”
⁵⁹
“The jury wasn’t sentencing Jack Ruby, they were sentencing Melvin Belli,” Alexander told an earlier interviewer.
⁶⁰

The acclaimed journalist Murray Kempton covered the Ruby trial for the
New Republic
and the
London Spectator
. He wrote about the verdict: “In point of fact, Ruby received no defense at all. The impression is inescapable that Mr. Belli made himself the defendant almost at once, that District Attorney Wade and his assistants happily accepted him as such, and that, in the end, when the jury ordered Ruby to the block, Belli was more an object of its disfavor than his client.”
⁶¹

No juror, of course, would ever admit taking his or her adverse feelings against Belli out on Ruby. However, one juror (who might not be representative at all, since a few jurors spoke of how impressed they were with Belli) did almost say this. Juror Douglas Sowell said, “Belli antagonized everybody. I mean he was just very blunt on his letting us know that we were just country bumpkins down here in Dallas. He didn’t make any friends.”

Question by interviewer: “Do you think that had a negative influence?”

Answer: “Oh, I think it had a negative influence…Belli hurt his case.”
⁶²

Ruby’s family agreed. In the aforementioned letter sent by Ruby and his family to Belli in which Belli was fired, one of the reasons given was Belli’s “constant bitter criticism of Dallas and the people of Texas” that the family felt was harmful to Ruby’s cause.
⁶³

Only a few of the jurors have spoken out, for attribution, as to why they returned a verdict of death, and their answers have been far less than satisfying. Juror J. Waymon Rose could only say, “Well, I’m for the death penalty. I’m for it to deter serious crime. And I don’t think it’s used enough.” Hardly a justification for the death penalty in
this
case, unless Rose was in favor of it for
all
murder cases, in which case he shouldn’t have been seated on the Ruby jury. Juror Douglas Sowell said that the jury returned a rather swift verdict of death because “we had already told [the judge and lawyers] that we
could
give the death penalty.” Yes, but merely being
capable
of returning a verdict of death doesn’t mean you intend to do so in every murder case. Juror J. G. Holton Jr. said, “I just have my beliefs—that if you kill somebody, the state needs to take your life.” This jury obviously was a hanging one and a prosecutor’s dream. It seems the defense should have asked them during jury selection if they were
capable
of returning a sentence of life imprisonment.

Perhaps the most troubling observation came from jury foreman Max Causey. We learn from Causey that on the first ballot, three of the jurors, including himself, did vote for life imprisonment but were quickly turned around by the other nine. He then goes on to say, “I personally feel that Mr. Belli and his team selected a nearly impossible defense for Ruby,” the psychomotor epileptic seizure argument being “very difficult to sell to the jury.”
*
He adds, in agreement with Bill Alexander, “Any good lawyer could have gotten Ruby off with something less than a death sentence if he had thrown Ruby on the mercy of the court and pleaded plain old ‘temporary insanity’ brought on by emotional stress over the loss of his beloved president.”
⁶⁴
So was this some type of a game with the Ruby jury? If Belli lost on his psychomotor epilepsy gamble, then Ruby had to pay the ultimate price? But again, irrespective of Belli’s strategic error, the jury still had, in front of them, the same defendant and the same act by that defendant. Belli’s error logically should not have stripped the jury of the discretion it had to come back with a sentence of life.

Going in, Belli said he knew that it was “impossible” to get “a good jury” from the highly conservative Dallas jury panel. “Rather, it was our task to head off the dedicated hangmen, those whose minds were completely closed to us.” Searching for any ray of sunlight he could find, one of the reasons why he accepted, without challenging, his first juror was, per his contemporaneous trial notes, that he “smiles at me.”
⁶⁵
(The most famous defense attorney of all, Clarence Darrow, often said he would never willingly accept a juror whom he could not elicit a smile from during jury selection.) That first juror, Max Causey, became the jury foreman who guided the jury to a conviction of murder and sentence of death for Belli’s client.

As discussed in depth in the conspiracy section of this book, after the trial Ruby insisted that the Warren Commission give him a polygraph, which it did, on July 18, 1964. But just before he took it, incredibly, he asked that one of his attorneys, Joe Tonahill, leave the room and that Bill Alexander stay, saying, “I prefer Bill Alexander.” Ruby even asked “Bill” to frame some of the questions, which Alexander did, and Alexander, always referring to Ruby as “Jack,” had off-the-record conferences with Ruby during the test.
⁶⁶
Alexander told me that after the polygraph test, an FBI agent asked Ruby why he would want Alexander, who prosecuted him and asked for the death penalty against him, to help with the questions, not one of his own lawyers. Ruby responded that “after all this legal business is over with, Alexander or Wade will call the governor and tell him to spare my life and he will. My lawyers can’t do this.” I asked Alexander if he would have, as Ruby said, intervened with the governor if Ruby were scheduled to die. Very interestingly, after a short pause, Alexander answered, “I don’t know.”
⁶⁷

Had I been the prosecutor, I would not have sought the death penalty in the Ruby case. In California and in most states, except for killings that take place during the perpetration or attempted perpetration of an inherently dangerous felony, like robbery, without premeditation one can’t even be convicted of first-degree murder, only second degree, and without such a conviction, the prosecution can’t even ask for the death penalty. But apart from the fact that this was not a clear case of premeditated murder, as a basic rule I never sought the death penalty where there were “substantial mitigating circumstances,” in which case I would only seek life imprisonment. In this case, in addition to the fact that Ruby unquestionably had considerable mental problems, which by itself, if severe enough, is a mitigating circumstance in some cases, the overwhelming bulk of Americans had an enormous and justifiable animus against Oswald for killing the president. Ruby, by
all
the evidence, was one of them. Killing Oswald in a state of rage (“I hope I killed the son-of-bitch,” Ruby said) to avenge, in his inflamed mind, the most serious murder in American history certainly would have constituted “substantial mitigating circumstances.” (In an even more personal example, although I never had such a case, I would never have sought the death penalty against, let’s say, a parent who murdered the killer of his or her child.)

In the many cases where I sought the death penalty, I would say to the jury, “If this is not a proper case for the imposition of the death penalty, what would be?” I could not, in good conscience, have made that argument in the Ruby case. Indeed, even Marina Oswald said she was opposed to Ruby being executed.
⁶⁸
While it is true she opposed capital punishment anyway, it is well known that many others who are opposed to it are in favor of it for those who kill their loved ones. A prominent example is movie director Roman Polanski, an opponent of capital punishment who wanted the death penalty for the Manson family killers of his eight-and-a-half-month pregnant wife, Sharon Tate.

In a remarkable vignette in their book,
The Trial of Jack Ruby
, authors John Kaplan and Jon Waltz tell the story of a judge who had the right idea but went too far with it.

Shortly after Jack Ruby shot and killed Lee Harvey Oswald in the basement of the Dallas Police and Courts Building, another act of violence occurred in Sioux City, Iowa. There, on the afternoon of Sunday, November 24, 1963, Vaschia Michael Bohan, a 47 year-old dental technician, and his mother were seated in the living room of their home watching a television program about the funeral arrangements for President Kennedy. Suddenly, Bohan’s 68 year-old stepfather entered the room and loudly cursed the assassinated president. Bohan rose, picked up a pair of sewing scissors, and stabbed his stepfather six times, once in the mouth and five times in the chest. The older man fell to the floor dead, and at 2:52 P.M.—one hour and thirty-two minutes after the shooting of Oswald—Bohan called the Sioux City Police Department to report his crime. Two police officers arrived shortly thereafter and he surrendered without resistance. On Monday, November 25, 1963, Bohan, like Ruby, was arraigned on a charge of murder. He pleaded not guilty and demanded a preliminary hearing…In December, Bohan changed his plea to guilty. On the day before Christmas he appeared in the courtroom of District Judge George M. Paradise for sentencing. The judge had pondered the accused’s crime and the atmosphere in which it had taken place. Referring to the assassination of President Kennedy, Judge Paradise stated that “the entire nation was under stress and strain from the tragedy.” He continued: “But that is not a reason for a citizen of the nation to release his emotions to the extent of causing another tragedy.” The defendant’s deed, he concluded, would weigh forever on his conscience. He sentenced Bohan to eight years in prison and a one thousand dollar fine. The judge suspended the prison sentence and ended the hearing by wishing the defendant a Merry Christmas and a Happy New Year. Bohan paid his fine and went home.
⁶⁹

Any discussion about Ruby being sentenced to death turned out to be moot and academic. On October 5, 1966, the Texas Court of Criminal Appeals reversed Ruby’s murder conviction and sentence of death on two grounds. First, Ruby’s statement to Sergeant Dean about deciding to kill Oswald when he saw him at the police lineup on Friday night “constituted an oral confession of premeditation” made by Ruby while in police custody, and therefore it should not have been heard by the jury because the law in Texas expressly provides that a defendant’s oral statements while in custody are inadmissible unless committed to writing and signed by the accused, which was not done here. The exception for “spontaneous” admissions was rejected here because Ruby’s question to the police
before
the interrogation as to whether his answers would be made available to the news media was held to have negated any suggestion of spontaneity. Second, the appellate court said that the trial court erred in refusing to grant the defense’s motion for a change of venue out of the charged atmosphere existing in Dallas at the time, which, they said, prevented Ruby from getting a fair trial there. A concurring opinion said that “the citizenry of Dallas” most likely “consciously and subconsciously felt that Dallas was on trial.”