Impossible: The Case Against Lee Harvey Oswald (Volume One)
Page 17
Warren Report, Page 21
“The Commission has found no evidence that anyone assisted Oswald in planning or carrying out the assassination.”
Warren Report, Page 22
“On the basis of the evidence before the Commission it concludes that Oswald acted alone.”
Warren Report, Page 375
“THE EVIDENCE reviewed above identifies Lee Harvey Oswald as the assassin of President Kennedy and indicates that he acted alone in that event. There is no evidence that he had accomplices or that he was involved in any conspiracy directed to the assassination of the President.”
Reclaiming History, Page xxvi
“[A] tenacious, indefatigable, and, in many cases, fraudulent group of Warren Commission critics and conspiracy theorists have succeeded in transforming a case very simple and obvious at its core — Oswald killed Kennedy and acted alone — into its present form of the most complex murder case, by far, in world history.”
Case Closed, Page 413
“None of the early critics created a cogent alternate account to compare to the one set forth of Oswald acting alone.”
The record, however, is not completely unanimous. In 1978, the House Select Committee on Assassinations (HSCA) stated “[t]he committee believes, on the basis of the evidence available to it, that President John F. Kennedy was probably assassinated as a result of a conspiracy.” (HR 95) However, the HSCA did so exclusively on the basis of acoustical data (HR 93) which some commentators later (accurately or inaccurately) claimed to be of suspect validity. Consequently, if the validity of the acoustical data was somehow to be impeached, the HSCA also would have concluded that Oswald acted alone since their belief was based on no other evidence.
In addition to this “escape clause” for the primary conjecture, the HSCA stated that the nature of the conspiracy they were considering was in any event functionally identical to the lone assassin scenario:
House Select Committee on Assassinations Final Report, Page 98
“If the conspiracy to assassinate President Kennedy was limited to Oswald and a second gunman, its main societal significance may be in the realization that agencies of the U.S. Government inadequately investigated the possibility of such a conspiracy. In terms of its implications for government and society, an assassination as a consequence of a conspiracy composed solely of Oswald and a small number of persons, possibly only one, and possibly a person akin to Oswald in temperament and ideology, would not have been fundamentally different from an assassination by Oswald alone.”
Based on the preponderance of data identified above, the two government documents and two primary lone assassin books, I conclude that the statement
There was one and only one gunman in Dealey Plaza, who was not aided and abetted by anyone.
is the first proposition in The Case Against Lee Harvey Oswald.
At first glance, the idea that there was one and only one assassin of the President would seem to be a tangential consideration in assessing the guilt of Oswald. After all, couldn’t Oswald have been the assassin who shot President Kennedy even if there were multiple shooters?
Perhaps, but then again, perhaps not, and if it can be shown that the first proposition cannot be demonstrated true beyond a reasonable doubt, the validity of the second proposition is automatically thrown into doubt! Of the severest possible kind! How can Proposition Two (“Lee Harvey Oswald was the lone gunman in Dealey Plaza on November 22, 1963”) possibly be true if there was more than one gunman?!
Vincent Bugliosi was well aware of the consequences for the case if Proposition One was demonstrated to be, from the legal perspective, false. In Reclaiming History, regarding the mock trial he conducted with Gerry Spence in London in 1986, Bugliosi related the reason he had to hammer home the point that Oswald was the lone assassin, and in the relation of that reason showed why the death of Proposition One would automatically lead to the death of the entire case (RH Endnotes, p. 553; emphasis supplied):
[I]f the jury believed or suspected that others were involved, this would inevitably generate in their minds a number of unanswered questions about who these people were and the nature of their involvement. These thoughts in turn could cause the jurors to conclude that they simply did not know the whole story, what really happened, hurting the credibility of my whole case against Oswald and raising a reasonable doubt of his guilt in their minds.
Read that well: if others were involved in the assassination of Kennedy, “reasonable doubt” as to the guilt of Oswald would automatically be raised in the minds of the jurors!
Bugliosi re-related the point yet again in a separate context in his book (RH 833; emphasis supplied):
A few Dealey Plaza witnesses gave statements of observing men on the upper floors of the Book Depository Building, which, if true, would support the conclusion that whoever shot Kennedy from the building may have had someone else with him. Since this would conflict 100 percent with the Warren Commission’s conclusion of no conspiracy, it arguably spills over and throws into question the Commission’s main conclusion that Oswald killed Kennedy, and I am therefore including this discussion under the “evidence of Oswald’s innocence” rubric.
Read that well: if there was a conspiracy to kill Kennedy, it would throw into question the Commission’s main conclusion, so much so that it should be considered evidence of Oswald’s innocence!
These twin admissions by Bugliosi are absolutely key: if anyone would know how devastating the existence of a conspiracy would be to the primary conclusion, it would be a prosecutor with decades of experience, twenty of them studying the Kennedy assassination.
As Bugliosi has noted, the mere evidence of conspiracy itself raises reasonable doubt, particularly in light of the fact that the commission found no evidence that Oswald was tied to a conspiracy (WR 374):
In other words, if there was a conspiracy, according to the Warren Commission, we must assume Oswald was not a part of it! So in and of itself, curiously enough, the prosecution’s case does indeed rest on what first glance appears to be an unrelated proposition.
This point is so critical, let’s analyze it further to see why conspiracy automatically creates doubt.
Remember the final conclusion to be established: “Lee Harvey Oswald fired the shot that killed President John F. Kennedy.” Note that the crime is:
murder of a President
but not
shooting at a President and missing
nor
shooting at a President and wounding without killing
So, if there was a conspiracy to assassinate President Kennedy, to prove the conclusion that “Lee Harvey Oswald fired the shot that killed President John F. Kennedy,” it would not only be necessary to show that Oswald was one of the shooters, but it would also be necessary to show that Oswald fired the fatal shot, which would automatically be assumed if he was the only gunman, but would be extremely difficult to show if he was not. This is because only one of the three shots claimed to be fired that day in Dealey Plaza by the Warren Commission was a fatal shot — the bullet which struck Kennedy in the back was not fatal, and one bullet missed completely. It was only the headshot which resulted in the death of President Kennedy.
Therefore, if Oswald did fire a shot, and there were multiple shooters, perhaps Oswald fired the shot that missed, and only that shot, which would mean obviously that he did not fire the shot that killed President Kennedy.
So, from a probability perspective, even if Oswald did fire a shot, there would be a 66% probability that he did not fire the shot that killed the President, and if he fired two shots, a 33% chance, which in both cases falls well short of the reasonable doubt standard.
Of course, if the evidence ultimately showed that more than three shots were fired, then the probability would drop even more.
In the face of this argument against the main conclusion, some would argue that the vicarious liability rule in criminal law would result in Oswald’s guilt. As Bugliosi himself noted (RH End
notes 552),
Oswald’s defense attorneys wouldn’t argue . . . that Oswald was a part of a conspiracy, because if they did, under the vicarious liability rule of conspiracy (which makes each conspirator criminally responsible for all crimes committed by his co-conspirators in the furtherance of the object of the conspiracy), they would be arguing Oswald’s guilt.
There are at least two points to note about Bugliosi’s observation: if Oswald was part of a conspiracy (as a murderer or one aiding and/or abetting a murder), he would indeed be guilty from the perspective of vicarious liability, but the conclusion of the Warren Commission and every other entity that advocates the Lone Assassin Theory is not that Oswald was guilty from a vicarious liability perspective, but that he actually fired the shot that killed the President!
And so, therefore, there is a further point, far more critical. Oswald’s attorneys would not necessarily argue that Oswald was a part of a conspiracy, as Bugliosi claims. To the contrary, what they would more likely have argued was that there was a conspiracy of which Oswald was not a part! 1
Unfortunately for the vicarious liability theory, Oswald’s motivation must also be factored in, for the purpose of establishing what in criminal law is known as mens rea (Latin for “guilty mind”2); in other words, intent.
Without the proper intent to commit the crime, Oswald could not be found guilty of that crime. 3
This is one of the most elemental principles in criminal law, and Oswald’s defense could have rested on this necessary principle. As Jessica Kozlov-Davis wrote in the Michigan Law Review, 4
Most commentators agree that the mens rea for conspiracy is purpose, or a specific desire to further the criminal enterprise. No federal statute explicitly prescribes a mens rea for conspiracy. The Supreme Court has consistently held that, based on the Model Penal Code, the appropriate mens rea is intent to further the aims of the conspiracy. According to the Model Penal Code, a person is guilty of conspiracy if, with the purpose of promoting the commission of a crime, he agrees with another person to engage in such conduct as constitutes a crime, or agrees to help another person plan or commit a crime. The prosecution must meet two burdens in a conspiracy case. First, it must establish that the defendant knew of the unlawful goals of the conspiracy. Second, it must establish that the defendant had the purpose or intent to further its goals, and thus intended to be member of the conspiracy.
In the Creighton Law Review, Ryan Grace additionally noted that there were two types of intent required to establish conspiracy, “intent to achieve the objective of the conspiracy, and “intent to agree to commit a conspiracy.” 5 Considering that the Warren Commission found no evidence that Oswald had any intent to agree to commit a conspiracy, that evidence simply does not exist, and so any vicarious liability theory must fall.
But let’s take this further: if there was a conspiracy, there are at least two possibilities that would lead to a “not guilty” verdict for Oswald:
There was a conspiracy, but Oswald was completely unaware of, did not participate in, and had no foreknowledge of it.
There was a conspiracy, and Oswald had some awareness and foreknowledge of the events that were the subject of the conspiracy, but Oswald was not made aware of the true nature of the conspiracy, nor of his role in it, and did not participate in any way that could be construed as “participation in a conspiracy.”
If the possibility is the first one, then obviously Oswald has no guilt whatsoever. He is completely cleared. Not guilty.
What is more likely based on the evidence that has been developed in dozens of books and articles is Possibility Two, that Oswald had some awareness of what was going on, but was given a “cover” story leading to actions used to implicate him later on, and if there was such a “cover” story, this could likewise lead to a “not guilty” verdict. The plausibility of this hypothesis would be a function of any evidence introduced to show that Oswald was acting as an undercover agent for the United States government in the five years previous.
From the standpoint of probability alone, there was an excellent chance of this, as Mark North related in his book, quoting a press report of 1962 (Act Of Treason, p 213):
“The Federal Bureau of Investigation has nearly 1500 informants in the 8500-member Communist party, according to a former agent who also made public a report criticizing the ‘autocratic’ way the bureau is run. The former agent is Jack Levine. . . . The bureau, Mr.Levine said, had found that the informants payroll had become a ‘severe drain,’ and that ‘through its dues-paying FBI contingent it had become the largest single financial contributor to the coffers of the Communist party.’”
In other words, with 1500 informants out of 8500 Communists, there was a 17% chance in 1962 that Oswald worked for the government, with no more evidence than that!!
This excerpt from North’s book provides another interesting historical takeaway: that the biggest single supporter of the Communist Party in 1962, considered at the time one of the greatest threats to the United States government was (drum roll) . . . the United States government!
And, there is a 17% chance that at least one of the “subversive” actions conducted at the time by some of those “communists” was in fact the actions of . . . the United States government!
File that one away for the time being
Returning to the main point at hand, this program had a long history, certainly pre-dating the “red scare” of the 50s. The agents sent to infiltrate the Communist party in these earlier days exposed themselves to at least two kinds of risk; the risk of being found out by the Communists, and the risk of falsely being accused as a Communist by those out of the loop.
One such individual was Robert Ronstadt, who, like Oswald, was an ex-marine, recruited by the government to go undercover and become a “communist.” An affidavit was prepared in his behalf by Joseph McCarthy: 6
The man selected for the mission was Ronstadt, who went on to live his double identity for a total of ten years, from 1946 to 1956:
Ex-marine Ronstadt himself indicated that when he was accepted into the Communist Party he reported directly to the FBI, and the FBI was keenly interested in that information not getting out (Ronstadt testimony, p. 1497):
Undercover work can be extremely dangerous when people think that you are a Communist, and you actually are not! In Ronstadt's case, it got out that he was both a Communist and an FBI informer, except the media got the order reversed, and accused him of being a communist-turned-FBI-informer, instead of what he was, an ex-Marine FBI informer who had infiltrated the Communist Party and who never was truly a Communist to begin with. Ronstadt explained what happened when his cover was blown (Ronstadt testimony, p. 1510):
Could what we learned about Ronstadt have applied equally well to Oswald? If so, Oswald’s actions as a “Communist” pre-dating the assassination would have been under the orders of the U.S. government, and we know that the Northwoods memo anticipated using similar false communists in one of their phony “terror” campaigns.
In addition, some have argued that Oswald could have been not only an agent of the FBI, but also the CIA, even though the CIA disavowed any knowledge of his actions (CE 870: 17 H 866): 7
The CIA says, “he’s not our man.” But then again, if the man accused of killing the President of the United States was, would they have admitted to it?
Of course not, not only in that circumstance, but even in less controversial circumstances, especially if Oswald was what was referred to as a “long-range-asset,” an individual either given a new identity or one who had an old identity extensively redefined. Allen Dulles, the ex-CIA director fired by Kennedy (who served on the Warren Commission), explained how the CIA went about creating these “long-range-assets” (The Craft of Intelligence, pp. 54-5):
If you are really born in Finland but are supposed to have been born in Munich, Germany, then you must have documents showing your connection to that city. You have to be able to act like someone who was born and lived there. A
rrangements have to be made in Munich to confirm your origin in case an investigation is ever undertaken. . . . Obviously, an intelligence service will go to all this trouble only when it is intent upon creating deep-set and long-range assets.