Reclaiming History (342 page)

^*
As is well known, John Fitzgerald Kennedy, the second of nine children of Joseph and Rose Kennedy, was born into great wealth, and the family’s domiciles reflected it. The Kennedys summered at their six-acre compound containing three homes in Hyannis Port, Massachusetts, on Cape Cod off the waters of Nantucket Sound, and vacationed in the winter at their Palm Beach, Florida, mansion off the Atlantic Ocean. Even the clan’s main sports reflected plutocracy—tennis, boating, swimming, and, oh yes,
touch
football.

†PT boats were known to be “dangerous beyond the call of duty” (Blair and Blair,
Search for JFK
, p.158).

^*
People spoke of JFK’s “irresistible charm,” it was well known that he was not vindictive toward his political opponents, and unlike his brother Bobby, he had few, if any, bitter enemies. Except for segregationists, the militant right, and some in big business, from what I have read people liked John F. Kennedy. As
Look
magazine observed, “Even his political opponents liked and respected him” (Attwood, “In Memory of John F. Kennedy,” p.12).

^*
Officially called the
Report of the President’s Commission on the Assassination of President John F. Kennedy
.

†Contrary to popular belief, the Warren Commission didn’t quite say there was no conspiracy in the assassination. The commissioners wrote, “The Commission has found
no evidence
that either Lee Harvey Oswald or Jack Ruby was part of any conspiracy, domestic or foreign, to assassinate President Kennedy…Because of the difficulty of proving negatives to a certainty the possibility of others being involved with either Oswald or Ruby cannot be rejected categorically, but if there is any such evidence it has been beyond the reach of all the investigative agencies and resources of the United States and has not come to the attention of this Commission” (WR, pp.21–22).
Note: Throughout this book emphasis by italics in quotations has been added by the author unless otherwise indicated.

^*
Even the court reporter was a real one, from the federal Eastern District of Virginia. Eagerly anticipating the trial, Judge Bunton told the media, “If Oswald had been tried, any judge would have wanted to do it. It’s going to be just as true to life as they can get it—with the real witnesses and a real jury flown in from Dallas. It’s going to record a lot of what would have developed if, in fact, Lee Harvey Oswald had come to trial.” Bunton explained that the trial would take some liberties with history. “It will be tried in federal court as opposed to state court. At the time that President Kennedy was killed, it was not a federal offense to kill the president. Since that time the law has been changed.” (United Press International, July 17, 1986) The case was tried under the Federal Rules of Criminal Procedure.

^*
It is an anomaly that Earl Warren, someone who one would think would be viewed like Caesar’s wife among all sensible people, would be attacked and his integrity impugned by those from all areas of the political spectrum, even by many on the political left, who heretofore had sung his praises for the progressive direction he had taken the court in the area of civil rights. Apparently the Kennedy assassination trumped everything.

^*
And naturally, this motivation to uncover a conspiracy, if there was one, applies equally well to the media. As CBS television news anchor Dan Rather has said, “If I could prove Oswald didn’t do it or Oswald didn’t act alone, it would be the greatest accomplishment of my career” (
USA Today
, February 4, 1992).

^*
“In their exploitation of a national tragedy, [the conspiracy theorists] have impugned the character and motives of hundreds of reluctant participants in that disaster. By plain inference they have indicted scores of public servants, from the lowliest cop on the beat in Dallas to the Chief Justice of the United States, for malfeasance bordering on treason” (Roberts,
Truth about the Assassination
, p.120).

^*
Just as the U.S. government, if it had prosecuted Oswald in real life, would not have charged him with conspiring with anyone to kill Kennedy (since the government did not believe he did), the jury in London only dealt with the issue of whether Oswald was guilty or not guilty of murdering Kennedy. However, the issue of conspiracy unavoidably permeated the entire trial. (See later discussion.)

^*
A condensed version of the trial was shown in England and several major European countries as well as Australia, and also to a very large national audience on Showtime here in the states on November 21 and 22, 1986.

^*
Throughout this book I will be referring to Oswald as Kennedy’s killer, and conspiracy theorists, as well as legal purists, have maintained for years that the only proper way to refer to Oswald is “alleged assassin,” on the rationale that under our system of justice in America, a suspect or defendant is presumed to be innocent until a jury finds him guilty in a court of law. But this invests a power and legitimacy to a verdict of guilty or not guilty that it does not have. A verdict of not guilty, for instance, cannot change the reality of whether or not the defendant committed the crime. That reality was established the moment of the crime, and nothing that happened thereafter can ever change it. If a courtroom verdict could, then if the defendant actually robbed a bank, but the three witnesses who saw him do it were unavailable to testify against him at the trial (e.g., the defendant’s associates had either killed them or threatened them into not testifying), his subsequent not-guilty verdict means he didn’t really rob the bank. In other words, the jury verdict succeeded in doing something that God can’t even do—change the past. Likewise, if someone did not rob a bank, but in a case of mistaken identity he was found guilty, the new reality is that he actually did rob the bank. To those who have challenged my calling Oswald guilty throughout the years by saying he was never found to be guilty in a court of law, I’ve responded that “under that theory, Adolf Hitler never committed any crimes, Jack the Ripper never committed any crimes, and the only crime Al Capone ever committed was income tax evasion.”

^*
For example, prominent conspiracy theorist Anthony Summers says, “No professional marksman was able to achieve [what Oswald did] in subsequent tests” (Summers and Summers, “Ghosts of November,” p.98); see also Henry Hurt’s book,
Reasonable Doubt
, page 8: “The United States government…has never conducted a test in which Oswald’s shooting ability has been matched. The country’s top experts can work the ancient Mannlicher-Carcano rifle bolt with sufficient speed. Those experts can hit a similarly moving target. But no official expert has ever been able to do both at the same time. That feat belongs to Oswald alone—a man of questionable shooting skills.”

†Even on May 6, 1959, when Oswald was about to leave the Marine Corps, and hence, wouldn’t have had any incentive to fire well, he fired a 191, qualifying him as a “marksman” with the M-1 rifle.

^*
However, once evidence made the hypothesis of guilt unavoidable, just as unavoidable was the unconscious partiality toward any piece of evidence, or interpretation of evidence, that supported the hypothesis. This was the one weakness of the Warren Commission, but short of a surgical operation on human nature, I know of no way to avoid such a problem. Fortunately, because the evidence of Oswald’s guilt was so complete and overwhelming, and there simply was no evidence that he acted in concert with others, this weakness of the Warren Commission, which is inherent in any and all investigative bodies, had no negative impact on the Commission’s findings. Only if there were substantive evidence of Oswald’s innocence or substantive evidence of his complicity with others in the assassination, one or both of which the Commission ignored or did not examine objectively, would there be cause to question seriously the validity of the Commission’s conclusions.

^*
Whenever I hear someone say the Warren Commission investigation was superficial, I immediately know that the person has never read or worked with the twenty-seven volumes of the Commission, and is just parroting hearsay from some other person who also hasn’t read or worked with them.
One of the deficiencies of the Warren Report and its supporting volumes is that although there are two separate name indexes, there is no subject index. In 1966, Sylvia Meagher eliminated that problem with her
Subject Index to the Warren Report and Hearings and Exhibits
, an absolutely invaluable reference work for anyone studying the assassination. In 1980, in collaboration with Gary Owens, she published her
Master Index to the J.F.K. Assassination Investigations
, which is a name and subject index to the Warren Report and volumes as well as the HSCA Report and volumes.

†Ninety-four witnesses gave testimony before members of the Warren Commission. An additional 395 were questioned under oath by members of the Commission’s legal staff, 61 gave affidavits, and 2 gave statements. (WR, p.xiii) As
Time
magazine said, “That is surely not a record of investigators refusing to listen to witnesses who might disturb their eventual conclusion” (“Who Killed J.F.K.? Just One Assassin,” p.32). Nearly all of the ninety-four witnesses gave their testimony at the closely guarded headquarters of the Commission in Washington’s Veterans of Foreign Wars Building. Some of the additional 395 were also flown in to give their depositions before Warren Commission assistant counsels, although most depositions of witnesses were taken outside Washington, D.C. (See Warren Commission volumes 1–15; Telephone interview of Richard Mosk by the author on September 8, 2005; closely guarded: “Warren Commission Report,”
Time,
p.48)

‡And the case will continue to be investigated and examined and analyzed for years and years to come. Indeed, in testimony before the Warren Commission, Richard Helms, the CIA’s head of covert operations, said, “I assume the case will never be closed” (5 H 124). And FBI Director J. Edgar Hoover told the Commission, “So far as the FBI is concerned, the case will be continued in an open classification for all time” (5 H 100).

^*
Obviously, it is those most familiar with the facts of the case who have the most problems with Posner’s scholarship. G. Robert Blakey, the chief counsel for the HSCA, wrote, “Like [Mark] Lane, Posner often distorts the evidence by selective citation and by striking omissions. Although Posner is not as disdainful of the truth as Lane, his book is a mirror image of Lane’s ‘Rush to Judgment’” (
Washington Post
, National Weekly Edition, November 15–21, 1993, p.23).

^*
I was asked by Chicago lawyer Michael Stiegel, representing the litigation section of the American Bar Association (ABA), to prosecute the case, but declined, because unlike the docu-trial in London, none of the actual Warren Commission witnesses testified. The witnesses were actors and employees of Failure Analysis. Further, the length of the trial was only five hours, not nearly enough time to get into the case. Prominent American trial lawyers represented each side of the case, including John W. Keker for the prosecution and David Boies for the defense. The August 10, 1992, ABA trial resulted in a hung jury, seven for conviction, five for acquittal. The only other serious mock (an oxymoron?) trial of Oswald I know of in addition to the London and ABA trials was on April 1, 1967, at Yale Law School. The six-hour trial used Yale law students as lawyers and witnesses, though medical testimony was given by some doctors. The jury of educators, theologians, executives, and housewives couldn’t reach a verdict, and deadlocked at six for conviction, six for acquittal. (
New York Times
, April 2, 1967, pp.1, 37)