Impossible: The Case Against Lee Harvey Oswald

by Krusch, Barry

  You decide to abandon these scintillating narratives for the time being, and choose instead to surf the web, when you land on this eye-opening story, which introduces you to the buzz word of the week, frankenbiting: 1

  The heart, Woody Allen said, wants what it wants. For the producers of the ABC reality show The Dating Experiment, that was a problem. The heart of one of their female participants did not want what they needed it to want. She disliked one of her suitors, but it would make a better story if she liked him. So they sat her down for an interview. Who’s your favorite celebrity? they asked. She replied that she really loved Adam Sandler. Later, in the editing room, they spliced out Sandler’s name and dropped in audio of her saying the male contestant’s name.

  That’s love, reality-style. This trick, says Todd Sharp, who was a program consultant on the series, is called Frankenbiting. And it happens more often than you may suspect. . . .

  [E]ven savvy viewers who realize that their favorite reality shows are cast, contrived and edited to be dramatic may have no idea how brazen the fudging can be. Quotes are manufactured, crushes and feuds constructed out of whole cloth, episodes planned in multiact “storyboards” before taping, scenes stitched together out of footage shot days apart. . . .

  [D]etails of how these shows manipulate reality have begun leaking out — because of a dispute with the employees hired to do the jiggering. Those staff members — who create story lines, coach interview answers and cobble together video — say their work amounts to writing, and they are suing their networks and production companies, arguing that they deserve to be covered by the Writers Guild of America. . . .

  It’s not that the shows have line-for-line scripts (although reality writers have charged that Paris Hilton was fed lines on The Simple Life). But Jeff Bartsch, a freelance reality-show editor, says there are many ways of using footage to shape a story. Bartsch worked on Blind Date, a syndicated dating show that features hookups gone right — and comically wrong. If a date was dull or lukewarm, the editors would juice the footage by running scenes out of order or out of context. To make it seem like a man was bored, they would cut from his date talking to a shot of him looking around and unresponsive —even though it was taken while she was in the restroom and he was alone. “You can really take something black and make it white,” Bartsch says. . . .

  Hooray for Hollywood?

  Well, perhaps we expect false reality from Hollywood, but we expect real reality from our justice system. Unfortunately, when we survey the scene, we quickly learn that the American ideal of justice for all is as real as Jennifer’s love for Todd.

  We can start by looking at a very basic, illustrative case. In 2009, a Georgetown student named Alexandra Torrens-Vilas was arrested in Florida for driving under the influence. But immediately before she was arrested, her car was rear-ended by a patrol car driven by Officer Joel Francisco, who apparently was not much of a Mario Andretti himself, since he collided with her after she had parked her car in the left lane of the roadway to retrieve a cat that had jumped out of her window. As Mike Celizic reported in August 3 of that year for Today.com, 2

  In preparing her defense, Torrens-Vilas’ attorneys had requested copies of dash-cam videos from the patrol cars that responded. The videos showed Torrens-Vilas performing sobriety tests, but the attorneys realized there was missing material. Unable to get the missing video from Hollywood police, the attorneys finally obtained it from the state.

  What they saw not only resulted in all charges against Torrens-Vilas being dropped, it also led to the suspension of five Hollywood police personnel. Rather than admit to being responsible for rear-ending the woman’s car, police concocted a story that would make everything her fault.

  “It confirmed everything that I thought,” Torrens-Vilas told Lauer. “I knew that that’s not what happened that night, and it just confirmed everything that I’ve been saying from the beginning.”

  According to the tape, Officer Dewey Pressley took the lead in the plot, saying, “Well, I don’t lie and make things up ever because it’s wrong, but if I need to bend it a little to protect a cop, I’m gonna.”

  He then tells another officer: “I will write the narrative out for you. I will tell you exactly how to word it so it can get him off the hook. You see the angle of her car? You see the way it’s like this? As far as I’m concerned, I am going to word it she is in the left-hand lane. We will do a little Walt Disney to protect the cop, because it wouldn’t matter because she was drunk anyway.”

  “[D]o a little Walt Disney”: now that’s what I call Mickey-Mouse justice! This tale from the state of Disney (Pinocchio) actually teaches us some very important lessons which will be useful as we analyze Oswald’s case:

  Sometimes crimes are “pinned” on defendants on whom the charges can plausibly “stick” due to a seemingly related infraction;

  Some cops will lie if they feel they are justified, or if it “doesn’t matter”, or some other reason to which we are not privy;

  When evidence is missing (like the video in this case), it’s not necessarily due to negligence; sometimes it’s missing to protect the guilty.

  That tale had a “happy” ending. Unfortunately, the roulette wheel of justice has only one green slot. An article in The New York Times in 2011 told a similar tale, unfortunately one far more common, whose “happy” ending was delayed by decades: 3

  During his 30 years in prison, Cornelius Dupree Jr. twice rejected his chance for freedom because an admission of guilt for rape and robbery was the price of parole. “Whatever your truth is, you have to stick with it,” Mr. Dupree explained this month after a Texas judge exonerated him of the 1979 crime on the basis of DNA evidence kept in long-term county storage.

  Mr. Dupree’s freedom highlighted the fact that Dallas County, unlike so many other jurisdictions, bothered to retain DNA samples across decades. No less a factor is an exemplary change in the attitude of the district attorney’s office. For the last four years, under the leadership of District Attorney Craig Watkins, it has cooperated in the DNA exoneration of 21 wrongly convicted citizens who lost decades of their freedom. All but one were convicted on the basis of incorrect eyewitness testimony.

  30 years in jail for a crime he didn’t commit, convicted on false testimony! Mr. Dupree was far less lucky than Ms. Torrens-Vilas, serving decades in prison. However, he at least was released. But numerous innocent convicts not nearly as fortunate as Mr. Dupree have not been released, and even when there is telling evidence that the evidence which put them in prison was manufactured, they can still lose on appeal.

  This latter phenomenon was demonstrated in the case of Kevin Cooper. Cooper was a convict formerly convicted of rape who had escaped from a minimum security prison on June 1. Four days later, on June 5, the family of Douglas Ryen was murdered (with the exception of Mr. Ryen’s eight-year-old son, Josh, who survived). Cooper had chosen as his hideout after the escape from prison the house next door to the Ryen’s, which made him the most likely suspect. Cooper was, in fact, convicted of the murders. 4

  However, while Cooper would appear at first glance to have been the most likely perpetrator, there were grave issues with the way the trial proceeded, and in fact, it is entirely possible that he was innocent of the charges. Judge W. Fletcher discussed the issues in a dissent published on May 11, 2009 (Cooper at 5430):

  The State of California may be about to execute an innocent man.

  In his dissent, Judge Fletcher gave numerous examples of how the evidence in the case was extremely suspect. For example, testimony by the child had indicated that there were several murderers, not just one (Cooper at 5436; citations omitted):

  Josh Ryen, the only survivor of the attack, first communicated to SBCSD Deputy Sharp that the murderers were three white men. This statement was the likely source of an entry in the police log during the afternoon of June 5, stating that the suspects were “three young males” driving the Ryens’ white station wagon.

  But this obviou
sly exculpating evidence was radically transformed at the time of the trial (Cooper at 5449):

  Deputies misrepresented his recollections and gradually shaped his testimony so that it was consistent with the prosecution’s theory that there was only one killer.

  There was further manipulation related to laboratory tests related to Cooper’s genetic profile (Cooper at 5449):

  A single drop of blood in the hallway outside the Ryen master bathroom — several feet away from any of the victims — had characteristics consistent with Cooper’s genetic profile and inconsistent with the victims’. The crime lab conducted serological testing of this blood drop (entered into evidence as A-41) under suspicious circumstances. The criminologist who conducted the testing arrived at one result, and then altered his records to show a different result that conformed to Cooper’s known blood characteristics.

  A similar contradiction was found with some extremely incriminating evidence, a green button. However, like many other pieces of evidence in this case (like a hatchet sheath), there was more to the story (Cooper at 5452; emphasis supplied):

  Deputies discovered a green, blood-stained button near the closet in [the bedroom where Cooper was hiding out]. It resembled buttons found on certain “camp jackets” issued at CIM. The blood on the button was type A, consistent with Cooper and Doug Ryen. The green button was discovered under the same suspicious circumstances as the hatchet sheath, strongly suggesting it was planted in the . . . bedroom after Cooper had become a suspect. Further, its color showed that it came from a green prison-issued jacket. Uncontradicted evidence at trial showed that Cooper was wearing a brown or tan prison-issued jacket when he escaped.

  The significance of what appeared to be numerous examples of manufactured evidence was pointed out by Judge Fletcher (Cooper at 5454):

  Cooper claims that the State presented false evidence at trial, in violation of Mooney v. Holohan, 294 U.S. 103 (1935), and Napue v. Illinois, 360 U.S. 264 (1959). Second, Cooper claims that the State failed to reveal exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963). Under both claims, Cooper claims actual innocence under Schlup v. Delo, 513 U.S. 298 (1995).

  Unfortunately, Judge Fletcher was only writing a dissent. The Circuit Court of Appeals voted to uphold the conviction, and the Supreme Court refused to hear an appeal from that decision. 5

  Let’s wind up this discussion of after-the-fact manufacturing of evidence with one final example, from Ricciuti v. N.Y.C. Transit Authority (124 F.3d 123 at 126; August 21, 1997). This case, whose subject matter was a bias-related assault by Alfred and Daniel Ricciuti on African-American NYC corrections officer Harlice Watson, was centered around a false confession by Alfred Ricciuti (after an arrest by officer Henry Lopez) to Lieutenant Robert Wheeler, a confession contained in an unsigned memorandum (emphasis supplied):

  A key piece of evidence in the investigation was a statement contained in an unsigned memorandum typed on Transit Authority letterhead. That memorandum reads:

  Lt. Wheeler III interviewed Deft. # 1 [Alfred Ricciuti] at 1725hrs. at District 11.

  Deft. states that “I was walking down the street and I bumped into this nigger.” “I said I was sorry but I was a little drunk and I don’t back down from anybody.” “I hit the man and the man punched me back so I hit this guy again and the man hits me and knocks me down.” . . . “I’m not a rowdy guy but I’m not afraid of anyone, even if they have a gun.” . . .

  The statement contained in this memorandum found its way verbatim into several subsequent investigation reports prepared in connection with the bias investigation, and apparently based largely on this statement, the assault was classified as bias-related.

  The Ricciutis insist this “confession” was fabricated by Lt. Wheeler. Alfred Ricciuti denies ever making a statement to Lt. Wheeler, and Daniel Ricciuti, who swears he was in his uncle’s presence the entire time, avers that no such statement was ever made. Officer Lopez admitted in his deposition that he would have made a notation in his notebook had such a statement been made in his presence, but there was no such notation. Although the statement “admits” Alfred Ricciuti was “a little drunk,” none of Officer Lopez’s arrest notes indicate that either of the Ricciutis was intoxicated. Both plaintiffs vehemently deny uttering any racial epithets at any time.

  The court determined that this was a false confession, and noted the constitutional issues (124 F3rd at 130; emphasis supplied):

  This argument — an ill-conceived attempt to erect a legal barricade to shield police officials from liability — is built on the most fragile of foundations; it is based on an incorrect analysis of the law and at the same time betrays a grave misunderstanding of those responsibilities which the police must have toward the citizenry in an open and free society. No arrest, no matter how lawful or objectively reasonable, gives an arresting officer or his fellow officers license to deliberately manufacture false evidence against an arrestee. To hold that police officers, having lawfully arrested a suspect, are then free to fabricate false confessions at will, would make a mockery of the notion that Americans enjoy the protection of due process of the law and fundamental justice. Like a prosecutor’s knowing use of false evidence to obtain a tainted conviction, a police officer’s fabrication and forwarding to prosecutors of known false evidence works an unacceptable “corruption of the truth-seeking function of the trial process.” United States v. Agurs, 427 U.S. 97, 104, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976); Giglio v. United States, 405 U.S. 150, 153, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972); Mooney v. Holohan, 294 U.S. 103, 112, 79 L. Ed. 791, 55 S. Ct. 340 (1935).

  When a police officer creates false information likely to influence a jury’s decision and forwards that information to prosecutors, he violates the accused’s constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983. United States ex rel Moore v. Koelzer, 457 F.2d 892, 893-94 (3d Cir. 1972); see also Smith v. Springer, 859 F.2d 31, 34 (7th Cir. 1988); Geter v. Fortenberry, 849 F.2d 1550, 1559 (5th Cir. 1988). Here, a reasonable jury could find, based on the evidence, that defendants Lopez and Wheeler violated the plaintiffs’ clearly established constitutional rights by conspiring to fabricate and forward to prosecutors a known false confession almost certain to influence a jury’s verdict.

  We have now seen several examples of reality manufactured by the government after the fact. Just isolated incidents? Only a few bad apples? I guess that would depend on how you define “few.” In any event, these “few” are only a few examples of a much larger problem. If you want to see how pervasive this problem is, the small sampling of law review articles below related to the topic will give an indication of its depth. The interested reader is referred to these articles, and the many cases and articles to which they subsequently refer:

  Rodney Uphoff, “Convicting The Innocent: Aberration Or Systemic Problem?”, 2006 Wis. L. Rev. 739 (2006).

  Simon A. Cole, “Forensics Symposium: The Use And Misuse Of Forensic Evidence; Fingerprinting: The First Junk Science?,” 28 Okla. City U.L. Rev. 73 (2003).

  Tamara F. Lawson, “Can Fingerprints Lie?: Re-Weighing Fingerprint Evidence In Criminal Jury Trials,” 31 Am. J. Crim. L. 1 (2003).

  Richard H. Underwood, “Perjury: An Anthology,” 13 Ariz. J. Int’l & Comp. Law 307 (1996).

  Steven P. Ragland, “Using The Master’s Tools: Fighting Persistent Police Misconduct With Civil Rico,” 51 Am. U.L. Rev. 139 (2001).

  Richard A. Leo, Steven A. Drizin, Peter J. Neufeld, Bradley R. Hall & Amy Vatner, “Bringing Reliability Back In: False Confessions And Legal Safeguards In The Twenty-First Century,” 2006 Wis. L. Rev. 479 (2006).

  Mitchell P. Schwartz, “Compensating Victims of Police-Fabricated Confessions,” 70 U. Chi. L. Rev. 1119 (2003).

  Gabriel J. Chin, Scott C. Wells, “The “Blue Wall Of Silence” As Evidence Of Bias And Motive To Lie: A New Approach To Police Perjury,” 59 U. Pitt. L. Rev. 233 (1998).<
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  Jeffrey L. Kirchmeier, Stephen R. Greenwald, Harold Reynolds, and Jonathan Sussman, “Vigilante Justice: Prosecutor Misconduct In Capital Cases,” 55 Wayne L. Rev. 1327 (2009).

  “Prosecutors Must Disclose Exculpatory Information When The Net Effect Of The Suppressed Evidence Makes It Reasonably Probable That Disclosure Would Have Produced A Different Result - Kyles v. Whitley, 115 S. Ct. 1555 (1995),” 26 Seton Hall L. Rev. 832 (1996).

  Nadia Soree, “When the Innocent Speak: False Confessions, Constitutional Safeguards, and the Role Of Expert Testimony,” 32 Am. J. Crim. L. 191 (2005).

  Brandon L. Garrett, “Innocence, Harmless Error, And Federal Wrongful Conviction Law,” 2005 Wis. L. Rev. 35 (2005).

  Myrna Raeder, “What Does Innocence Have To Do With It?: A Commentary On Wrongful Convictions And Rationality,” 2003 Mich. St. L. Rev. 1315 (2003).

  Now, most of the cases in these law review articles refer to the least obnoxious side of evidence manufacturing, which is that some branches of government will on occasion manufacture reality “after the fact” to secure the unjust convictions of those who lost the American justice lottery.

  But would any branch of government dare to manufacture reality “before the fact” to achieve likewise unjust objectives? The surprising answer is yes . . .

  Let’s turn to that next.

  Category 2: Manufacturing Reality Before The Fact

  The “dirty little secret” of government is that on occasion it will not only frame people for crimes they did not commit, it will on occasion create crimes out of thin air,as Samuel Gross and Barbara O’Brien reported in 2008 in the Journal of Empirical Legal Studies, summarizing data also contained in the Frontline documentary LAPD Blues: 6