In what they believed was the absence of a market for camera-original films, the government appraisers provided two different approaches to assessing the value of the Zapruder film. And here things really go off the rails. Macauley argued that since there was no market that could be used to establish just compensation, the next best approach was to use the sales history of the object to establish value. To do so, he began with the $150,000 purchase price that LIFE had paid for the film in 1963 and then applied the Consumer Price Index to determine its present-day value at around $780,000 as of the time of the taking in August 1998.
Asked by Manhardt to elaborate, Macauley did so: “The Consumer Price Index is often referred to as a market basket, and that’s a misnomer. It includes very many things. I think forty percent of it is housing. It includes cars. It includes education. It includes entertainment. It’s a bundle of all the things that most families spend their money on. Consequently, it’s pretty well validated. There are people who quarrel with it, of course, but it seems to be the most sensible way of updating a thing of this kind or of any kind.” Leaving aside the obvious criticism that the original Zapruder film is not “the kind of thing that most people spend their money on,” it’s hard to see how any serious person could use the same inflation rate for common household items and for the original Zapruder film, which is—I believe we’ve established—the exact opposite of a common household item. Or, to point out another inconsistency, the government claimed the film couldn’t be compared to collectible items at auction because it’s not made of the same material, but it could be compared to butter, TV sets, theater tickets, and cars.
The government’s second expert was called in the afternoon. John Staszyn used a different approach, one that, among other things, left the government open to attack on cross-examination by Bob Bennett. Finding no market for camera-original films, he surveyed the market for items that had sold at auction and had elements in common with the film. This was in direct contradiction to Macauley’s stated approach that only camera-original films were appropriate comparables; it also contradicted the government’s attack on the LMH experts for comparing the film to furniture, manuscripts, and artwork. For example, he compared it to other manuscripts, such as Abraham Lincoln’s handwritten notes for the “House Divided” speech (admittedly, an extraordinary document to own), which sold for $1.5 million at auction, and a printed broadside of the Declaration of Independence that sold for $2.4 million at auction. He compared the camera-original film to original historic photos, such as the first known daguerreotype of the Capitol Building from 1846, which had sold for $189,500. Finally, he made some comparisons with Kennedy memorabilia, pointing out that the top of the market was the $1.4 million desk on which Kennedy signed the Nuclear Test Ban Treaty. But rather than breaking down the specific characteristics that these objects did or didn’t share with the Zapruder film, as the LMH appraisers had, he simply used the range of prices paid at auction for these items as a range for the market for the Zapruder film. And then he provided a number that was not grounded in any actual comparable, a symbolic figure that seems vague and disconnected from reality. He concluded, “It is this appraiser’s expert conclusion based upon extensive research, that the fair market value of the original Zapruder film spool is no higher than one million dollars. Indeed, it can be argued that the film is worth as little as four hundred thousand dollars.”
Both of the government witnesses were cross-examined by Bob Bennett, unfortunately for them. In his book In the Ring: The Trials of a Washington Lawyer, he wrote: “Remember, a good cross-examiner is like a guerrilla fighter. You go in quickly, make your hits, and get out.” He started by hitting Macauley on his approach. He showed Macauley a brand-new baseball and asked him to explain how Mark McGwire’s historic seventieth home run baseball could sell for $3 million at auction when a baseball in far better condition could be bought for ten dollars.
MACAULEY: Well, we’re comparing apples and oranges here.
BENNETT: No. We’re comparing two baseballs. That baseball and the three-million-dollar baseball. How do you explain that?
MACAULEY: Of course, it’s the aura of his having hit it.
BENNETT: It is associated with him?
MACAULEY: Yes.
BENNETT: It is associated with an important event, the breaking of a baseball record. Is that right?
MACAULEY: Yes.
BENNETT: And yet you are testifying today before this panel that the Zapruder film—which you have said in your report and which you have repeated before this panel here again today is probably one of the most valuable films ever—you are saying that film is worth a third or a quarter of Mark McGwire’s baseball?
Bob Bennett is very good at cross-examination. It’s impossible to read the transcripts without admiring his style, humor, and obvious pleasure in the work, while simultaneously feeling sorry for the witnesses he cross-examines and hoping that you are never one of them. In this case, he did not need to resort to the kind of tricks for which trial lawyers are famous. Instead, he had plenty of material just by focusing on the flaws in the government’s case and the inconsistencies in their experts’ approaches.
One of the most damning moments came when Bennett made Macauley admit on the stand that he had, just ten days before, hired one of LMH’s experts, Steve Johnson, to appraise a vintage film about a rare bird. The government’s expert had hired the LMH expert to do his appraisal. When Bennett asked Macauley if he thought Steve Johnson was qualified, he said, “Oh yes. Yes. I think he would do a good job.”
Likewise, in his cross-examination of the government’s second witness, John Staszyn, Bennett questioned him about his approach to establishing value, and in so doing, caused him to discredit the previous government expert’s method. Bennett made sure the arbitrators noticed that the government was presenting two different approaches instead of consolidating their efforts around one completely airtight one.
Throughout the hearing, the arbitrators rigorously questioned all the experts. At the end of the hearing, they each had the opportunity to lay out their concerns and lingering questions to the attorneys. All of this was critical fine-tuning as they challenged each side’s assumptions and pressed them to justify the assessments their experts had made. There was one moment in the hearing that I think reflected the “battle of experts” that Bob Bennett described and the challenge that the arbitrators faced in judging which approach was the right one. It came when Ken Feinberg questioned the government’s expert John Staszyn. He had just finished explaining why the Zapruder film was less valuable than the “House Divided” speech and the Declaration of Independence broadside. Feinberg asked why he had not factored the codex into his calculation. Staszyn stumbled a little, saying that it was because da Vinci was known as the Renaissance Man, the manuscript was over five hundred years old, there were a lot of drawings in it, and it was the last one that was ever going to be available. Feinberg was not convinced: “All I’m raising is, there is Mr. Patterson sitting there and Ms. Warren. I mean if you read their testimony there is no comparable. Just like you, there is nothing comparable. The closest is the codex… You’re saying no, it isn’t the codex.” Staszyn responded, “I think it’s in the wrong market, though. I think it’s in the wrong market.” Feinberg responded in exasperation, “I am just telling you we are getting this testimony arguing it was the codex, not the codex, baseballs, not baseballs, documents, not documents.”
In the end, that’s exactly right. The sheer range of possible comparables that flooded through the courtroom over the two days of hearings was dizzying. There were Jack Kennedy’s golf woods and his cigar humidor, the desk on which the Nuclear Test Ban Treaty was signed and the Badminton Cabinet, the film of King Alexander of Yugoslavia’s assassination and an original daguerreotype from 1846, iconic photos from the 1960s and films showing the bombing of Pearl Harbor, a printed broadside of the Declaration of Independence and the manuscript of the “House Divided” speech, Van Gogh’s Irises,
Mark McGwire’s baseball, and Leonardo’s codex. Much as the experts tried to apply logic, to break down the characteristics, to figure out where the Zapruder film best belonged, it was subjective. In the end, the Zapruder film was worth what someone would pay for it. The arbitrators were not going to find a real comparable. They had to listen to both sides, read all the material, lean toward the experts they felt were most convincing, and then somehow pick a number.
In my meeting with Judge Tunheim about his experience heading the ARRB, he had surprised me by expressing his dismay that the government had gotten “hoodwinked” into agreeing to arbitration. At first, I didn’t understand. I thought that arbitration represented the best option for both sides, because it avoided litigation and the protracted appeals that usually follow. He felt, however, that the case should have been tried in the Court of Federal Claims, where such disputes would normally be resolved. In a later e-mail exchange, he elaborated: “Of course, I am a federal judge and I believe courts are typically better suited to determine such important questions rather than paid private arbitrators, but that is my obvious bias.” He had more confidence in the courts in part because, in his words, large companies have used arbitration to take rights away from the “little guy.” In this case, the “little guy” was America, whose public money was going to be spent on the film.
As Judge Tunheim explained it in his e-mail to me, “A court that was accustomed to setting values for many kinds of claims made against the government (and with the possibility of an appeal to the Federal Circuit) would likely be more receptive to the public interest argument and the Review Board’s statutory mandate of acting in the public interest, than would a private arbitration panel more interested in establishing value.” In his view, it was utterly inappropriate to get caught up in comparing the Zapruder film to Jack Kennedy’s golf woods, not because one was a film and the other was sports equipment, but because it didn’t matter to history and society who owned JFK’s golf clubs but it mattered very much who owned the Zapruder film. That’s why the ARRB took the film to begin with.
So why did the government agree to arbitration when doing so put them at a disadvantage compared to arguing the case in court? When I visited Rich Brusca, he told me he thought the Justice Department feared it was on “shaky ground” with the taking (though Judge Tunheim later told me he felt confident that the ARRB was on solid legal footing with the taking and that the public hearing had established that the nation would be best served by the permanent inclusion of the original film in the National Archives). Right up to the last minute, LMH held the option of suing the government for the return of the film. Henry, of course, wanted to avoid such action at all costs, but the Justice Department didn’t know that. Meanwhile, pressure was mounting on our family’s side to do something before October 28, 1998, which may or may not have been the expiration date on the six-year statute of limitations for the taking of the film. LMH had made it clear that its offer of arbitration (which was not a bad offer, considering that there was a $30-million ceiling and no floor) would be the last one before it would file suit to challenge the taking. It seems that, in the end, the government and LMH both had the same reasons for agreeing to binding arbitration: to get the whole thing over with.
Nearly everyone I interviewed—our attorneys, my dad’s partners, and even some on the side of the government—was deeply perplexed by the government’s handling of the arbitration hearing. There were so many inconsistencies and so many places where the logic fell apart. No one could quite understand how something so important, with so much money at stake, was handled this way. Some said they thought the attorneys’ hearts weren’t in it; others said they were young and inexperienced; still others said they simply didn’t have a case. But as I thought about what Judge Tunheim and Rich Brusca had said, and the forum in which the matter had been argued, I started to see the government’s approach in a different light. It seemed to me that, ultimately, the government didn’t really argue the fair market value of the Zapruder film so much as what they felt would be fair to the American people. After all, $750,000 clearly wasn’t the absolute value of the film (Judge Tunheim himself acknowledged this when I asked him), but perhaps it was the number they felt was the justifiable one if they took the public interest and all the other factors into account. This was the number they had offered in negotiations back in 1996 and it was the number they stuck to all along. Maybe it was also the number they wanted the American people to know they had fought for, even if fighting for it meant presenting some pretty tortured arguments. In the mother of all ironies, it was the arbitration itself that gave them the political cover to make their case, flawed as it was. They could start with the figure and work backward (rather than the other way around), surely knowing that, in the end, the arbitration panel was likely to award more than they felt was fair. The question really was just how much more. But whatever it turned out to be, the Justice Department would not be the ones to take the heat.
On Saturday morning, July 17, I was at home in my apartment in DC and my parents were away for the weekend. The following Monday, July 19, the three arbitrators were due to hand down their decision in the matter of the Zapruder film. I was very much aware that the decision was soon going to be made public, but as always with things related to the film, we hadn’t discussed it much; if my father was worried about it, he hadn’t said. I was listening to the radio when I heard that JFK Jr.’s small plane had been reported missing with his wife and her sister on board off the coast of Martha’s Vineyard. I remember sitting down, overcome by a feeling of dread. I was absolutely sure that he was dead. I was sure that my father didn’t know. I was sure that I didn’t want to tell him. And I was sure that I needed to call him immediately.
When I told him, my father said little. He tended to be very reserved in moments like that. The awfulness of the situation was perfectly obvious. I don’t know who called whom, but everyone had the same thought. The decision was postponed for several weeks.
The previous Wednesday, July 14, the Dallas Morning News had published an editorial in the paper titled “Zapruder Film: Attempt to Profit from Tragedy Is Sad and Disturbing.” In it, the editorial board wrote that they did not envy the task before the arbitration panel to decide on the value of the Zapruder film, especially as it was a “decision that no one should have had to make.” In the opinion of the Dallas Morning News, our family had more than recouped the cost of our grandfather having made the film—a reel of film, bus ticket, or tank of gas—and we should simply donate it to the National Archives. They went on to explain that the film is a record of a national tragedy, and that it is not “sports memorabilia” or the “cocktail napkin scribblings” of a famous artist. In the end, we were publicly rebuked for our lack of moral character. “The film’s historic significance makes it priceless. Yet common decency dictates that people shouldn’t try to profit from tragedy… If the family will not donate it, the arbitration panel should set a price at the low end of the suggested range—perhaps $1 million. It will be blood money.”
It was the one and only time that our father ever responded publicly to criticism. He wrote and the paper printed a response, which was very restrained but in which he outlined, with absolute consistency, the principles that had guided him for so many decades.
The Zapruder family has always sought to balance the public’s interest in access to the Film with the respect that our family has for President Kennedy and his family… There are, no doubt, many who would have chosen to auction the Film to the highest bidder years ago. We chose not to because we believed that it was best that the Film remain in the United States under our guardianship. Our family was not, however, in a position to turn over the entire value of the Film to the government…
The government decided, for its own reasons, that it had to have the original Film itself. The government agrees that we are entitled under the Constitution to just compensation for this “taking” and we have, by amicable agreement, placed the matter entir
ely in the hands of an impeccable panel of arbitrators. In light of how we have balanced the interests in the Film, we find your assertion that we have violated principles of “common decency” as baseless as it is offensive.
On August 3, 1999, the arbitrators reached a decision. In a two-to-one decision, the panel awarded our family $16 million for the camera-original Zapruder film. Ken Feinberg and Judge Arlin Adams wrote the arbitration decision and Walter Dellinger, the government-appointed arbitrator, wrote a dissent. In the decision, Feinberg and Adams first summarized the history of the film and the case made by both sides. Then they outlined the reasons they believed that “the record makes clear that a substantial valuation is warranted in this case.” First, they relied on the “uncontroverted testimony” of our appraisers, whom they described as “world-class experts” with years of experience auctioning famous historical items. The government, they said, failed to offer witnesses with similar expertise who could contradict them. Second, they argued that the very fact of the “taking” of the film proved its value. “In what appears to be a most unusual act,” they wrote, “the Government ‘took’ the film from its private owners, concluding that its historical importance was so significant that it should be secured under Government protection.” Next, they pointed to the rise in the auction market in general, and the fact that the evidence showed that individuals were purchasing items for far more than they were predicted to be worth, and that this trend would likely apply to the Zapruder film were it put up for auction. Finally, they acknowledged that there was a special place in the American mind and heart for the Kennedys, a fact that caused many items belonging to the family to sell for high prices at auction. “In terms of its emotional and historical significance, the film would undoubtedly surpass previous Kennedy memorabilia.”
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