Oswald, Mexico, and Deep Politics
Page 34
We can only repeat here a few of the problems with this story, which at the time engendered a number of supporting statements to the FBI that were later hastily recanted:
According to one version of this latest story from Marina, Oswald had "intended to shoot Nixon" in Dallas; and she "had locked Lee Harvey Oswald in the bathroom the entire day. . . to prevent him from doing so". . . .Faced with the fact that the Oswald bathroom, like all others, locked from the inside, Marina then told the FBI. . . that in April 1963 "she forcibly held the bathroom door shut by holding on to the knob and bracing her feet against the wall". . . . Finally she would tell the Warren Commission. . . that she and her much stronger husband "struggled for several minutes" inside the bathroom. . . .Faced with other, irreducible difficulties in this Nixon story, the Warren Commission discreetly concluded it was of "no probative value."19
Note here that Posner has glossed over the inconsistencies in two incompatible stories by attempting to present them as one. In fact if Marina was outside holding on to the knob, she could not have simultaneously been inside struggling with her husband.
Twisting Testimony to Imply (or Even State) Its Opposite
But Posner’s worst abuse of testimony occurs with respect to Oswald’s location before the fatal shots. Posner inherits the Warren Commission’s problem that a number of credible witnesses placed Oswald on the first or second floor of the School Book Depository, both shortly before and shortly after the fatal shots were fired from the sixth floor at 12:30 pm. The FBI Summary Report of December 1963 suggested that Oswald had been observed on the fifth floor between 11:30 and 12:00; but the Warren Commission added that he had been seen (by Charles Givens, of whom more below) on the sixth floor. Posner, like earlier advocates of the lone assassin theory, reports another such alleged sighting as fact: "At 11:40 one of the workers, Bonnie Ray Williams, spotted Oswald on the east side of that floor, near the windows overlooking Dealey Plaza."20
The problem with this convenient story is that Williams, as if to satisfy his exigent examiners, had apparently changed his story not once but twice. An earlier FBI interview on November 23 had reported Williams as saying that he had seen Oswald on the fifth floor about 11:30 am; and that Williams had returned to the sixth floor about noon and seen no one 21 One day earlier, only a few hours after the assassination, Williams had signed and sworn to a Dallas Police affidavit, stating categorically that "I didn’t see Oswald any more, that I remember, after I saw him at 8 am."22
The Warren Commission was quite aware of this problem. It quizzed Williams about his conflicting earlier statements to the FBI (though not to the Dallas police); and then discreetly declined to use his belated story about the sixth floor. And yet relied heavily on Williams’ account (in another story he had failed to report earlier) of hearing the shots fired from one floor above him while watching the motorcade with two co-workers on the fifth floor. Commission Counsel Belin elicited vivid testimony from Williams on this point: "It sounded like it was right in the building. . . .it even shook the building, the side we were on. Cement fell on my head."23
Williams’s earlier amnesia about what he heard is compensated for by elaborate corroboration from his two alleged companions, "Junior" Jarman and Harold Norman. Indeed the corroboration is so precise that one’s suspicions are raised, especially since none of the three had reported their important earwitness accounts to the Dallas police.24 We even find these suspicions voiced by Stephen White, in one of the many earlier books which, like Posner’s, has tried to persuade the American public that the Warren Commission was right:
Any student of the Report. . . must become uneasy at the testimony of the three men who stationed themselves at a fifth floor window in the Depository to watch the motorcade go by. Their stories dovetail admirably: The each heard three shots; they believed they were fired above them; one of them heard three shells hit the floor above them. It may well be so, but uneasiness is engendered when one learns that the Warren Commission stimulated their memories by a reenactment that duplicated in detail the account to which the investigators themselves were by then committed, and in so doing may have made concrete a recollection that had earlier been vague and indistinct.25
The Warren Commission needed an eyewitness to Oswald on the sixth floor, in order to rebut three eyewitness stories that Oswald had spent this period on the first or second floor of the building. Posner has no better rebuttal for one of these three downstairs witnesses (Eddie Piper) than to say that "Piper. . . is clearly mistaken as five witnesses had placed Oswald on an upper floor, left behind by the elevators by that time."26 The big problem here is that the witness score of five (for upstairs) versus three (for downstairs) had originally been one, or later two (for upstairs) versus four (for downstairs). The problematic nature of this evidence had been noted in an early Warren Commission internal memo of February 25, 1964.27 All five who had declared for upstairs by March had changed their stories to do so. None had done so more suspiciously than the one witness, Charles Givens, whom Posner chooses (without any hint of this problem) as his main source.
There are three possible responses to the confusion and conflict in witness testimony about Oswald’s location. There is the judicious or common sense response (which was that of the House Committee): to conclude that the "inconsistencies in the statements. . . created problems that defied resolution 15 [now 30] years after the events in Dallas."28
There is the scholarly response: to gather more evidence, whether as to what happened inside the Depository, or about the alterations in the witnesses’ stories, or about the forces which led to these alterations. Sylvia Meagher in 1971 looked more closely at "The Curious Testimony of Mr. Givens," which changed at least four times in five months, and ended up with his switch from being a downstairs to an upstairs witness. According to an FBI memo of November 22, Givens had told the FBI that at 11:50 am he had seen Oswald reading a paper in the "domino room" on the first floor. In his Warren Commission testimony of April 8, 1964, Givens told counsel Belin that he had never made the earlier statement, and claimed (for the first time in the official record) that he had seen Oswald on the sixth floor just before noon.29
Meagher also reprinted an intervening statement on February 13, 1964 to the FBI by Dallas Police Lt. Jack Revill (a narcotics detective), "that Givens had previously been handled by the Special Services Bureau on a marijuana charge and he believes that Givens would change his story for money." And she denounced as "patently false" Revill’s testimony to the Warren Commission (on May 13, 1964), that Givens had told him on November 22 he had seen Oswald on the sixth floor, on the grounds that Givens had never said this until April 1964.30
Finally there is the lawyerly approach: to tell less, not more, to suppress the difficulties with the testimony that is preferred, and to invent non-existent problems with the testimony of witnesses one wishes to discredit. This is the approach of Posner in Case Closed. Instead of admitting, and discussing, the problems with the sixth floor witnesses who recanted their own testimony, Posner completely ignores these problems, and creates the false impression that it is a key first floor witness who has contradicted herself.
Posner is especially concerned to impeach the testimony of Carolyn Arnold, which corroborated Oswald’s own account of having lunch on the first floor, in opposition to the Warren Commission account of Oswald waiting on the sixth floor. In Posner’s words:
Carolyn Arnold, a secretary to the Depository’s vice-president, told Anthony Summers in 1978 that at 12:15 she entered the second-floor lunch room and saw Oswald sitting in one of the booths. "He was alone as usual and appeared to be having lunch," Arnold said. Her interview with Summers was the first time she ever publicly told the story about seeing Oswald in the lunch room. But Arnold had given two different FBI statements shortly after the assassination. In one, she said she "could not be sure" but might have caught a fleeting glimpse of Oswald in the first-floor hallway, and in the second statement said she did not see him at all. Arnold to
ld Summers the FBI misquoted her, though she had signed her statement as correct. Four other women worked with Arnold and watched the motorcade with her that day. They support her original statements and not the story she told fifteen years later. Virgie Rachley and Betty Dragoo accompanied her when she left the second floor at 12:15. They did not see Oswald in the lunch room.
After this apparent demolition of Arnold, Posner dismisses the other two witnesses in a footnote:
William Shelley and Eddie Piper also thought they saw Oswald on the first floor shortly before noon. But Shelley later admitted he saw him at 11:45 A.M., before others noticed him on the sixth floor. Piper thought he saw Oswald at noon filling orders on the first floor, but he is clearly mistaken as five witnesses had placed Oswald on an upper floor, left behind by the elevators at that time.31
(These five witnesses had come up with the elevator story long after the assassination; and one of them, Charles Givens, had originally placed Oswald on the first floor).32
But the apparent problem with Arnold’s testimony is an artefact of Posner’s own lawyerly imagination:
1) Arnold never told the FBI "she did not see [Oswald] at all." She said that she ‘‘did not see Lee Harvey Oswald at the time President Kennedy was shot."33 This was in response to a narrow question asked of all Book Depository witnesses by the FBI, in accordance with a request from the Warren Commission. Similar if not identical answers were given by Roy Truly, who according to Posner saw Oswald two minutes (some say 90 seconds) after the assassination, and by five of Posner’s alleged upper floor witnesses.34
2) It is highly misleading to say that "Arnold told Summers the FBI misquoted her, though she had signed her statement as correct." Here Posner conflates two different FBI statements, one of November 26 about seeing Oswald on the first floor (where she later claimed to have been misquoted), and one of March 28 about not seeing Oswald at the time of the assassination (which she had signed as correct).
3) Thus there is no evidence that Arnold ever contradicted herself. One might normally suspect witnesses who denied making statements attributed to them by the FBI. But Posner has no grounds for doing so in this case. As he is quite aware, three of his upper floor witnesses (Givens, Williams, and Norman, whose final stories he reports as gospel) had denied under oath making earlier statements attributed to them by the FBI and/or Secret Service.35 Arnold’s different memory after fourteen years is hardly comparable to the dramatic differences in reported stories from Givens after a few weeks, or even hours.
I call Posner’s treatment lawyerly, because he is trying both to make some very problematic sixth floor witnesses seem clearer than they were, and to make a first floor witness seem more problematic than she really was. But at times his abuse of evidence goes beyond legal propriety. On the same page, for example, he tries to rebut Oswald’s own statement that he took his lunch in the first-floor domino room by a seemingly persuasive barrage of conflicting testimony: "Danny Arce, Jack Dougherty, and Charles Givens [all three of them upper floor witnesses who had changed their stories] also ate in the first-floor room up to 12:15 and said there was no sign of him."36 The footnoted citation for this statement from Givens is to the Warren Commission Hearings, Volume Six, p. 352. But on that page we find the exact opposite testimony: "Mr. BELIN: On November 22 did you cat inside the building? Mr. GIVENS: No Sir." After this discovery, one can raise questions about the other alleged witnesses as well.37
Not every page of Posner’s book is as full of distortions as this one. Even here I have focused on the worst handling of evidence; there are indeed other credible witnesses who create problems for those who believe that Oswald in fact spent this time on the first floor.
But I have no trouble admitting that the evidence is confused, and the Depository witness testimony problematic. It is Posner, in his desire to find the case closed, who must introduce a false simplicity that in fact is not to be found. There will be those who argue that Mr. Posner is after all a lawyer, and we should expect no better of him.
But my complaint is about the national media pundits who (like Tom Wicker) have hailed this book as "thoroughly documented" and "always conclusive." My complaint even more is with the prominent academics who (like Professor Stephen Ambrose) have hailed it as "a model of historical research." The case will certainly never be closed as long as the media tout such misrepresentations as the proper answer to the critics.38
Postscript
A review in an academic journal by the historian Thomas C. Reeves, published after the above had appeared, praised Case Closed as "a masterpiece of solid research, objectivity, and careful reasoning." The same review faulted Sylvia Meagher as an example of the "conspiratorial theorists whose reputations have been demolished by Posner."39 I enquired of Prof. Reeves his reasons for preferring Posner to Meagher, and invited him to look more closely at his treatment of her, as follows.
Here is the first of Posner’s alleged demolitions: "Sylvia Meagher. . . writes, There is, then, no basis in any of the available medical or psychiatric histories for allegations that Oswald was psychotic, aberrant, or mentally unsound in any degree.’ Meagher’s conclusion is contradicted not only by [Dr. Renatus] Hartogs but also by two Soviet psychiatrists who evaluated Oswald. . . in Moscow" (Posner, 13n).
Dr. Renatus Hartogs had diagnosed the 13-year-old Oswald in April 1953, after his truancy from school. He found Oswald to be "functioning presently on the bright normal range of mental efficiency." He added that "no finding of neurological impairment or psychotic changes could be made," but diagnosed Oswald as "personality pattern disturbance with schizoid features and passive-aggressive tendencies" (20 WH 89-90). Posner quotes chiefly from Hartogs’ much more dramatic testimony to the Warren Commission eleven years later, about "definite traits of dangerousness" and "potential for. . . assaultive acting out" (Posner, 12; 8 WH 217, cf. 219). The later testimony is of course at odds with Meagher.
However, when confronted with his own original report, Hartogs conceded that it "contradicts" his later recollection: "I didn’t mention it [the potential for violence] in the report, and I wouldn’t recall it now" (8 WH 221). The Warren Report itself (a model of judiciousness, when compared to Posner) noted that "Contrary to reports that appeared after the assassination, the psychiatric examination [by Hartogs in 1953] did not indicate that Lee Oswald was a potential assassin, potentially dangerous" (WR 379). Meagher recorded Hartogs’ retraction and cited the Report; Posner suppresses all reference to both. It would appear that Meagher’s summary language was closer to the truth than Posner’s expanded report of a charge which (as he typically fails to tell us) was almost immediately retracted.
We find a similar perversity in Posner’s allusion to the Soviet psychiatrists. As a lawyer, he prefers to quote a hearsay account of two reports filed by psychiatrists from Moscow’s Botkin Hospital ("Both concluded he was ‘mentally unstable’" [Posner, 51]). This hearsay is from a witness, Yuriy Nosenko, whose credibility was impeached by both the FBI and the CIA, and in whose diverse statements to various agencies the House Committee found "significant inconsistencies" (AR 102). Why does Posner rely on hearsay, when (as he knows, p. 514) we have the actual reports from Botkin Hospital?
Meagher quotes from these reports (p. 244), Posner does not. The reports found Oswald "not dangerous to other people. . . of clear mind, no sign of pyschotic phenomena. . . no psychotic symptoms," and his attitude "completely normal" (18 WH 464, 468, 473). Once again, Posner’s "demolition" is achieved by substituting erroneous recollections for the known truth.
Posner is not always so dishonest, and Meagher is not always faultless. Posner does quote one sentence from Meagher which is technically inaccurate, in connection with the Tippit killing. Here it is: "Benavides, the man who had the closest view of the murder, did not identify Oswald at that time or even when he was shown a photograph of Oswald months later during his testimony for the Commission" (Meagher, 256; Posner, 276n). But Meagher’s only error here is to speak of a photogr
aph of Oswald, instead of photos of the clothing he was wearing that afternoon (to which Benavides responded, "I think the shirt looked darker than that," 6 WH 453). The big point, which still stands, is that neither the Dallas Police nor the Warren Commission ever asked the only true eyewitness to the shooting to identify Oswald or his photograph.
Prof. Reeves has declined to respond to the above comparative evaluation of Posner and Meagher.
1 U.S. Cong., Senate, Intelligence Committee. Performance of Intelligence Agencies, Appendix B; House, Judiciary Committee. FBI Oversight Hearings, October 21 and December 11, 1975; Posner, 215-17 (Oswald and FBI in Dallas); House, Select Committee on Assassinations, "Lee Harvey Oswald, the CIA and Mexico City," Classified Staff Study (cited henceforth as Lopez Report, declassified 1993), 123, 164, 183-84, etc. (Oswald in Mexico City).
2 Posner. pp. 511, 514, etc.
3 Posner, 86.
4 12 AH 55-57; Summers, 248; Dick Russell, The Man Who Knew Too Much (New York: Carroll and Graf, 1992), 318-19; Warren Hinckle and William Turner, The Fish Is Red (New York: Harper and Row, 1981), 210 (contract agent); Peter Dale Scott, Deep Politics and the Death of JFK (Berkeley and Los Angeles: University of California Press, 1993), 78. There is also the problem of the alleged KGB defector, Yuri Nosenko, who came to America in 1964 with the claim that the KGB had had nothing to do with Oswald. There are issues here that will probably never be resolved, but Posner, in order to close the case, makes light of them. He spends most of his time confirming what he calls "Nosenko’s bona fides" (p. 41), and his arguments are quite persuasive. But even if Nosenko were a bona fide defector, it does not follow that all that he says about Oswald is true. On the contrary, the House Committee reported "significant inconsistencies" in statements Nosenko had given the FBI, the CIA, and the Committee (AR 102). Posner makes the valid rebuttal point (p. 45) that a 1967 CIA review found "massive errors in the translations of the interviews conducted before and during Nosenko’s imprisonment." But he does not reveal to his readers that this finding related to CIA interviews only, leaving unexplained the reported major discrepancies between Nosenko’s statements to the Committee and to the FBI. Thus there is still little justification for Posner’s having relied so heavily on Nosenko as a principal source.