by Barry Krusch
So, we know from this testimony that not every photograph exhibited by the Warren Commission as a record of the scene on November 22 was taken on November 22 (not to mention that not every photograph exhibited by the Warren Commission was of the genuine reality)! Now, considering the man-hours and set-up time involved, do we really believe that only one photograph was taken on November 25, or even some later date? Isn’t it entirely fair to speculate that other photographs were taken on November 25 (or later), not just one, and that perhaps some, most, or all of these November 25 (or later) photos were “reconstructions” as well? If that was the case, and CE 510 was one of those photos, then all that is needed is for someone to testify that CE 510 was actually taken on November 22, and who would be able to prove them wrong?
Lacking the authenticating information in the photograph itself by which the legitimacy of the photograph could be substantiated, and considering the testimony of Mooney that the shells were in a slightly different position from what he claimed he observed, the validity of this photograph must be seen as suspect, especially in light of the evidence we have just seen (and are about to see).
OK, if identifying information is lacking in the photo, what about the testimony of Mooney and others that they did in fact find three shells on the scene? That is direct, not circumstantial evidence. Well, one simple explanation — apart from the obvious possibility that they are mistaken, and two additional possibilities we will discuss later — is that they aren’t telling the truth.
To those who may find this difficult to believe, we can take the word of Vincent Bugliosi that “police are human beings like everyone else, and a few have been known, in their effort to be looked upon as heroes, not only to magnify what they did or saw, but actually to make false claims . . .” (RH 889; emphasis supplied). Earlier in his book, Bugliosi also advises us (in the context of how defendants seek to establish their innocence) that “many times . . . evidence is fabricated” (RH 827; emphasis supplied), but of course it can work the other way as well, and is more likely to, since the police have custody over the evidence, and as a prosecutor with decades of experience, and one who knows that police are capable of making false claims, Bugliosi should know all about that.
We can also add to Bugliosi’s rationale for why police would make false claims that perhaps they were under pressure to make these claims. With the media broadcasting the “Oswald as lone assassin” story 24/7 month after month after November 22, the pressure on the officers to give the “correct” testimony must have been intense, not to mention the fact that in some of these cases, their jobs might have been on the line.
So, if the photographs & testimony are potentially suspect, is there any other way to verify the existence (or lack thereof) of the third shell? Yes, by using a key technique in police investigation used to document the chain of custody. Using this technique, one can literally follow the virtual ownership of a piece of evidence throughout its lifespan.
This technique is the marking of items of evidence at the scene of the crime — and at the time of discovery — by those persons who have uncovered that evidence. For example, at the time and place a bullet is found, the initials and/or name of the finder need to be scratched into the metal using a tool designed for the purpose, which at the time of the Kennedy assassination was a diamond point pencil. In fact, the very existence of such a specialized tool should tell you something about the ubiquity of a standard process for identifying evidence throughout the criminal justice system in United States of America in the 1960s (and today, it might be added), and that in turn should tell you something about the importance of this process. In the case of the Kennedy assassination, which up to that time was certainly the most important criminal prosecution of the 20th century in the United States, we can be sure that everyone handling the evidence, especially before Oswald was murdered and a trial was imminent, was well aware that they needed to get all their SOP ducks in a row, and any variations from this practice would be very telling indeed.
To illustrate how this technique works using a very simple example, let’s assume that a bullet was found at the scene of the crime, and the first person to find the bullet was Andy. Subsequently, Andy passed it off to Brian, and then Brian later passed it off to Charlie. At each transition point, the respective parties were to carve their initials on the bullet with the diamond point pencil, Andy using “A,” Brian using “B,” and Charlie using “C.” If that were the case, and the protocol were followed, the bullet would look something like the following:
Later, at the trial, Andy, Brian, and Charlie would be brought in to testify that the initials on the bullet were theirs and theirs alone (bringing along any ancillary materials such as receipts, etc., which described in detail the item in question). And in this “happy path” scenario, the chain of custody for this particular bullet would be established.
Naturally, this could be extended to any number of parties: if we suppose that two additional parties, David and Edward, were also transferred the bullet later in time, then we would expect to see this:
And that’s the happy path for parties A through E. But not all paths are happy, and that’s when the brains of the citizens in the jury box need to go on red alert. Imagine that Andy, Brian, Charlie, David, and Edward were the key personnel in the chain of custody sequence. If so, we know what the bullet is supposed to look like. But, suppose instead the bullet offered into evidence at trial revealed only these initials:
That would be a major problem indeed! According to the evidence of the bullet, evidence that trumps any testimony to the contrary, the only people who handled this bullet were Brian and Edward. And, if Andy, Charlie, and David actually did mark a bullet, then we can be sure that the bullet that they marked was not this one! That would mean that there were two bullets, one which was actually present at the scene of the crime, the other surreptitiously later introduced into evidence!
This is such a serious problem that even if we had what some might refer to as a “minor” gap in the chain of custody, that so-called minor gap would actually be a major gap:
The reason that one letter lost is a major gap is that the person who first found the bullet was Andy. Andy marked his bullet. Yet Andy’s initial is not on this bullet, is it? This means that this bullet was not the one found by Andy. So, even though there is a legitimate chain of custody following, that chain of custody is irrelevant, because we know that this bullet could not have been the bullet found by Andy — the bullet at the scene of the crime, and the only one that counts.
The problem would be even worse if we then went to David, and asked him if he carved his initials in the bullet, and he told us “No.” That would be a second problem, a case of false identification to go along with our previous case of missing identification. Where false identification was concerned, the initials would be forged, not the bullet, but the end result would be the same.
If we have either (or both) of these types of mal-identification, false or missing, this bullet would therefore not be admissible into evidence, and any case relying on this bullet would be finished.
A continuity error, a literal one, that could not be overcome. And for want of this nail, the kingdom would be lost — the nail in the coffin, so to speak.
Now that we have the basic concept in mind, let’s track the chain of custody for the Kennedy shells and live round. When we look at the testimony related to the live round alleged to have been found on the sixth floor, we can see that the procedure was followed as established. The first person considered to have possession was Lieutenant Day, who in testimony before the Warren Commission on April 22 stated that he marked the live round at the scene of the crime, just like it was supposed to be (4 H 258): 40
Now let’s find out if that same procedure was followed with the empty shells discovered.
David Belin, Assistant Counsel of the Warren Commission, had interviewed Day in Dallas just two weeks prior to his April 22 testimony (4 H 254), and in that interview Day told Bel
in that he had marked all the empty shells at the scene, in the same manner as he had marked the live round, following the standard operating procedure.
Day’s April 22 testimony, however, revoked that claim, with the astonishing new information that his name was not scratched on the third empty shell! (4 H 254): 41
In case this testimony left any doubt that the shells were not marked at the scene as required, Day reiterated the point (4 H 255): 42
So what happened? How was it that only two hulls were marked by Day, and how were any marked at all, if they weren’t marked at the scene?
Well, as the story went, Day claims to have put the three hulls in an envelope, and then he turned them over to Richard Sims, a homicide detective with the Dallas Police Department (DPD), without marking them at the time (4 H 253): 43
Of course, we know Day did not turn
3 hulls over to Sims of the DPD,
because the CSS form of November 22 clearly indicates that
2 hulls were turned over to Brown of the FBI.
Therefore, there should be a “B” on this bullet, and not an “S”, which is our clue to be on the lookout for future examples of BS.
We are already in major trouble with this testimony, but the trouble has only just begun . . .
So, when did Day supposedly mark the hulls? As the story goes, when two of them had been returned to Day at 10 pm — but then Day dropped another bombshell (4 H 254): 44
So, in this version of the shell game, 2 of the shells were marked, but only after they had been transported in an unsealed envelope, an envelope that was opened before Day had a chance to mark the shells (and, in a total departure from the chain of custody concept, giving someone else the opportunity to substitute different shells into the envelope)!
For those readers rubbing their eyes in disbelief, Day reiterated his testimony (4 H 256): 45
The envelope not only was not sealed, its contents were just barely identified adequately . . . perhaps (4 H 253): 46
But were they identified at the time of delivery to Sims? No, there was no writing on the envelope identifying the contents when it was supposedly given to Sims to be transferred to the Identification Bureau! (4 H 254): 47
So, in this version of the story, three shells were earlier in the afternoon sent to the Identification Bureau of the homicide division in an unmarked and unsealed envelope, the homicide division retained one, and then returned two for subsequent delivery to the FBI (Drain making his first appearance at 10:00 pm), which Day proceeded to mark, along with the envelope said to have conveyed them.
Now, which shells were delivered to Drain in the envelope? The shells identified as Commission Exhibits 545 and 544. Here is the testimony related to CE 545, the first shell identified as being in the envelope: 48
Notice here that Day, whose memory up to this point has been something short of razor-sharp, remembers clearly making the mark, using a diamond point pencil.
The next testimony refers to CE 544, the other shell that was in the envelope: 49
And now the final testimony, related to last empty shell, Exhibit 543, the shell which was unmarked — well, at least by Day (4 H 255): 50
So, the verdict is in: CE 543 did not have Day’s mark on it. In other words, a vital link in the chain of custody had been severed, and precisely on the shell which all the documentary evidence we have seen so far indicates never existed before November 27.
However, the shell was stated to have the initials “GD” on it, and the stipulated reason these initials were on the shell is that it was not sent to Washington like the other two. This provides a coherent story for the identification which is missing (“Day”) but which ought to be present.
To help you keep track of just what is going on, the story just told can be summarized with the following model derived from Day’s April 22 testimony:
Here is how to read this model (designed to give you a bird’s-eye view of testimony at-a-glance):
From left to right, you see that on November 22 at 10 p.m., 2 shells were received by Day. One shell, identified as CE 543, with the initials “GD”, had been sent to Fritz earlier. The two other shells CE 544 and 545, both with the initials “Day” that were scratched on the shells at 10 p.m., were subsequently sent to Washington.
Unfortunately, this explanation, perhaps thought to be by its creators rather innocuous on the surface, and a credible explanation for a key gap in the chain of custody, turns out to be an absolute disaster for the prosecution, for the following six reasons:
Notwithstanding the explanation, Day’s name still was supposed to be scratched on 3 shells, not 2. This testimony, if true, simply verifies what all the other evidence has been telling us, that only 2 shells were discovered.
Evidence was handled inconsistently; the live round was marked on the scene, the other shells were not, indicating a key lapse in protocol.
Day not only reverses his testimony (shells were marked at the scene . . . no, they actually weren’t), but he reverses it in the wrong direction; it not only indicates that his testimony inherently lacks credibility, but by testifying that the shells were not marked on the scene, he provides testimony to not only his poor memory but also to his failure to follow protocol.
The marks Day reportedly put on the shells were put on shells which were in an unsealed (and unmarked) envelope; considering Day’s exceptionally poor memory, he could not possibly be reliably considered to have identified these shells; since the envelope was not sealed or marked (two other egregious protocol violations), other shells could have been placed in the envelope without Day’s knowledge, and so “identifying” them later would have been pointless.
Day’s testimony that 3 shells were turned over to Sims of the DPD is contradicted by the CSS form that proves that 2 shells were turned over to Brown of the FBI.
Most importantly, this testimony proves that the Fritz story is, without question, completely false. Indeed, this testimony is a hydrogen bomb that completely obliterates the validity of the chain of custody that connects shells that were found on the sixth floor with shells that were fired from Oswald’s rifle.
How does it do that?
Because the story, if true, is impossible!
We can discover why this is so when we understand the FBI prefix designations given to evidence as it was logged. Remember those “Q” numbers? Well, you should realize that “Q” wasn’t the only FBI prefix, there was also a “C” prefix, which indicated that the item qualified as an evidentiary exhibit (the “Q” prefix indicated that this evidentiary item was first sent to the FBI lab, where it was given an FBI laboratory examination number).
So, we are going to be mapping “Q” numbers to “C” numbers, and ultimately those numbers to the most important “CE” (Commission Exhibit) numbers. That will help us track what went where and when, which is something we have to do to unravel this mess.
In general, whenever you find yourself lost in a maze, it is helpful to retrace your steps and work backwards so you can find your way out:
We are able to retrace the steps and unravel the thread thanks to page 71 of Commission Document 735, which contained a listing of the personal effects of Lee Harvey Oswald and his wife Marina, as well as articles of an “evidentiary hearing nature.”
This valuable document, a second Rosetta Stone in the Kennedy assassination, will allow us to ultimately create a table linking all of these “C,” “Q,” and “CE” designations.
Let us start by going from “C” to “Q”. The listing in CD 735 maps the “C” designation to the “Q” designation for C6 and C7 as follows (CD 735, p. 71): 51
So, C6 = Q6, and C7 = Q7. C38 was similarly mapped two pages later (CD 735, p. 73): 52
Likewise, C38 = Q48.
Now that the “C” and “Q” designations of the empty shells have been identified with each other, we need to identify the “C” and “Q” designations of these shells with the Warren Commission exhibit “CE” numbers.
When
we examine key Warren Commission testimony, a third Rosetta Stone, we learn that Q6 is identical to CE 543 (3 H 508): 53