Impossible: The Case Against Lee Harvey Oswald

by Krusch, Barry

  that case, if it had a marking by Day at all, had a marking by Dayso small/faint/nondescript that it could not be seen without a magnifying glass and a good light, AND

  “GD” was scratched on the case, AND

  the case was dented on the end.

  These properties have been taken directly from the testimony. The text below we saw earlier, and provides us with our first two unique identifying factors, 1) the practically invisible marking by Day (“that is a hull that does not have my marking on it”) and 2) the “GD” initials (“it has the initials ‘G.D.’ on it”):

  And here is testimony related to point 3, the cartridge being bent on the end. This discovery was provided not by Day, but by counsel David Belin (“it appears to be flattened out here”), removing Day’s ability to perceive correctly as a source of error:

  Further confirmation that there was a dent on the mouth of the CE 543 cartridge case (and that counsel Belin was observing reality correctly) was provided by the House Select Committee On Assassinations nearly a decade and a half later, which attempted to explain the origin of the malformation (7 HSCA 371): 62

  This testimony is mutually confirming, but even so we still we might want to see photographic evidence of the dent referred to. What is the nature of the dent, and how significant is it?

  In this regard, we are in debt to Josiah Thompson, who went to the National Archives and took an extremely clear photograph of CE 543, and the dent Belin mentioned (Six Seconds In Dallas, p. 144; arrow superimposed by author):

  Lieutenant Day, with his twenty-three years experience (4 H 249), and who supposedly fingerprinted this cartridge at least once, perhaps twice, didn’t remember noticing this? Well, others did: three separate sources identifying a dent clearly present.

  Needless to say, this dent is a key identifying detail, one which neither of the other hulls possessed (according to all available evidence), thus enabling discrimination from the other two cartridge cases.

  Now, when we put all these three properties together:

  The marking by Day so small/faint/nondescript that it cannot be seen without a magnifying glass and a good light, WITH

  The initials “GD” scratched on the case, WITH

  The case being dented on the end,

  we can see there is no other empty cartridge case which has this unique combination of properties, and that only CE 543 possesses them.

  In this manner, and for these combined three reasons, CE 543 is just as different from the other two as a circle is different from a square and a triangle.

  Likewise, CE 545 also has a unique property: for all of the differences indicated between the April 22 testimony and the July 23 affidavit, there is area on which those two disparate testimonies agree: it is the only one of the three empty cartridge cases which did not have the initials “GD” inscribed, as we can see when we take a look at our models side-by-side again, focusing on the CE 545 column:

  So, CE 545, for a different reason, is likewise unique. Two cartridges, as different as night and day — or as GD and Day. Consequently, we realize that there is no misidentification possible here either.

  Now that we know that, let us summarize everything we have learned in a table (even though Day did not say that he confused 544 with 543, I’m including it also in the table so that you can see he did not confuse 543 with 544 either):

  As you can see, from an identification perspective, shells 543 and 545 are as different as “YES” is from “NO” . . .

  Accordingly, when we re-examine the disastrous (for The Case Against Oswald) April 22 Belin/Day exchanges related to CE 543, the first describing Properties 1 (invisible Day) and 2 (GD),

  and the second describing Property 3 (flattened/dented),

  we see that there is no way CE 543 could have been, in those exchanges, confused with CE 545:

  CE 543 was the only shell with all 3 properties identified in the testimony above (and therefore the shell identified as CE 543 had to be CE 543), AND CE 545 did not have “G.D.” inscribed on it (and therefore the shell identified as CE 543 could not be CD 545)!

  Either of those two reasons alone would have sufficed to demonstrate that confusion was impossible, but when seen together, mutually confirm what logic invariably dictates.

  So, the desperate attempt to manufacture a new reality was fatally flawed, and now here comes the repercussion:

  This attempt not only failed to establish the legitimacy of a shell that desperately needed it, but it had the unintended consequence of utterly destroying the chain of custody said to have tied the bullets supposedly found on the sixth floor of the Texas School Book Depository with the bullets fired from the Mannlicher-Carcano (also said to have been found on the sixth floor, and said to be Oswald’s) — not only for one shell, but all of them!

  We discover this when we see that the attempted revised model implicit in the June 23 affidavit

  is incorrect from the “Sent to Washington” perspective, and actually must be adjusted in relation to the impossibility factor which tells us that the April 22 Day testimony — and not the June 23 Day affidavit — was that which was to be utilized to decide which shell was sent to Fritz, and which shells were sent to Washington.

  When we overlay with a gray highlight in the table below the shells which Washington claimed to have received from Dallas (24 H 262) comparing to that underneath which was claimed to have been sent to Washington by Dallas according to the April 22 testimony (4 H 255), the problem (with the adjustment made) is dramatically apparent:

  And now, at long last, we can see the implications inherent in the only model derivable from all the evidence. So here they are:

  Shells Q6 (CE 543) and Q7 (CE 544) were the ones reported by the FBI as sent to Washington. Therefore, Shell Q6 (CE 543) said to have been located in Dallas (in the custody of Fritz) on November 23 (according to Day’s April 22 testimony), could not have. Since that shell was not in the possession of Fritz in Dallas on November 23, it had to have originated elsewhere, and therefore must have been planted, and pretty quickly too, within five days after the assassination (a third shell was sent to the FBI on November 27 from Dallas). Needless to say, in either event, the inscriptions “GD” and “Day,” if present on Q6, had to have been inscribed later, and these forgeries, instead of proving Oswald’s guilt, would instead prove that none of the evidence against him could be trusted, by proving a conspiracy to protect the identity of the true assassin(s) of the President.

  Shell Q48 (CE 545), said to have been sent to Washington on November 23 according to Day’s April 22 testimony, was not. Indeed, because the highest Q number was Q15, it could not have. Q6 (CE 543) and Q7 (CE 544), according to the FBI, were the only shells sent to Washington. With no plausible origination point, whether Washington or Dallas, this shell’s pedigree is completely unknown, and most likely was also planted.

  Shell Q7 (CE 544), which formerly had retained a formally untainted status, now has its chain of custody compromised as well. The FBI record shows that it was (reportedly) sent to Washington, and the testimony by Day on April 22 and June 23 confirms this, but it contains two marks, one by “G.D” and one by “Day”; according to both the April 22 and June 23 testimony, it should contain only one mark, “Day,” if you believe the April 22 testimony, or “G.D.”, if you believe the June 23 affidavit. Because logic dictates that only the April 22 testimony can be true, however, this means that if the mark “G.D,” was actually present on this shell, it was forged. At any rate, for the foregoing reason, and also because it has marks by both where it should only have marks by one, the chain of custody for this shell is also illegitimate.

  Now, that is something!

  Remember, we started this section of the chapter simply trying to show that only one of the three cartridge cases claimed to have been found in the Texas School Book Depository (and linked with Oswald’s rifle) had an illegitimate origin, but surprise of surprises, we now find that all of the empty cartridge cases have a broken chain of
title, and for that reason, cannot be used as evidence in this case! For The Case Against Oswald, that’s cataclysmic, because of all the evidence, more than any other, this is the evidence that MUST be valid for the case to proceed.

  Suddenly, with a POOF!, the case against Oswald has vanished in a puff of smoke!

  Faced with this dismal reality, what argument can the defenders of the Warren Commission possibly make in response?

  Well, one avenue would be to attempt to discredit the testimony of J.C. Day, who (for these keepers of the “Oswald alone did it” flame) provided information about as appetizing as an anthrax cocktail. Discredit Day, and you provide some hope, however small, of salvaging a completely sunken prosecution.

  This avenue of attack would proceed by attempting to show that Day was either mistaken, or lying, when he stated that “G.D” was on the shell. Given the record-setting number of flip-flops, memory lapses, misidentifications, protocol violations, and narrative shifts found in the Day testimony, this would be trivially easy to do. (Both politics and Kennedy assassination research make strange bedfellows!)

  As luck would have it, these newly-inducted members of the Oswald Defense team have an additional piece of documentary evidence on their side, a letter drafted to David Belin by Day the day after the testimony was given, which indicates that indeed, the marks on at least one of the shells, insofar as “GD” is concerned, are not necessarily legitimate: 63

  The new line of argument would go something like this: “Oh, Day was just mistaken, the initials that he claimed to be Doughty’s were actually someone else’s, like Vince Drain’s.” This line of argument would conveniently forget that there is a story behind those GD initials, so if those in fact were not the initials of Doughty, the story would obviously have been illegitimate.

  This potential argument was not substantiated by testimony in any event, because just two months after this letter was written, Day claimed that Doughty was present with him when he was verifying the initials, and Doughty must have suddenly had a memory/vision recall that completely foreclosed this new hypothesis as a possibility (7 H 402): 64

  So, this latter testimony eliminates as a source of error a confusion of letters: with Doughty present, and his ostensible affirmation of the identification of initials using a magnifying glass under a good light, we can eliminate the possibility of any other individual’s initials being on the bullet (again, based on this testimony).

  Still, the letter does give room for doubt regarding the legitimacy of initials that actually were there, given the discrepancy between that letter and the testimony. Since the Warren Commission would have been well aware of a letter received by Assistant Counsel David Belin (if it was sent), you would think that the Commission would have called Captain George Doughty as a witness to testify to the authenticity of his initials, or at the very least, provide an affidavit regarding the same. In fact, regardless of whether or not they received the letter, to legitimate the lineage of the initials they would have had to have done one or the other.

  They didn’t!

  That’s right . . . search the over 20,000 pages of hearings and exhibits of the Warren Commission for an affidavit or testimony by Doughty that the initials on the shell were his, and you will come up short, as proven by the upcoming screen capture of the index to the Warren Commission hearings. Note that George Doughty, unlike Kenneth Dowe whose name is immediately below his, has no “Testimony” referenced (15 H 764). 65 That’s because there isn’t any:

  The only relevant references to Doughty — by Day, of all people — are the ones you have seen reproduced in this book.

  In addition, you can search the index provided by the House Select Committee On Assassinations in its report of March 29, 1979, starting on page 573 of the Final Report, and you will find no reference to any testimony or affidavit by Doughty (HSCA Report 573): 66

  The author attempted to verify this omission by indexing not only the final HSCA report but also all of its appendices using Adobe Acrobat Professional 10, and found not even one reference to Doughty.

  This is an ominous sign for the legitimacy of the “G.D.” story; when Doughty is not called as a witness, nor asked to submit an affidavit of confirmation, especially in light of a letter to the Assistant Counsel of the Warren Commission that the testimony provided was most likely incorrect, one can be forgiven for assuming that the reason Doughty was not given the opportunity to verify this story was because, in fact, he would not verify the story. This would provide a very telling indication that the “evidence” that was offered by Day (in the form of testimony and an affidavit) did not rise to the level of proof, and therefore failed to establish the fact in dispute. Bugliosi elucidated this distinction for the non-lawyers among us (RH 827; emphasis supplied):

  [E]vidence is not synonymous with proof. Evidence is that which is offered (legitimate or not, whether it is believed or not) to prove a fact in dispute. Proof, on the other hand, occurs when the trier of fact is satisfied that the fact in dispute has been established by the evidence. In other words, if the evidence offered proves the fact for which it is offered, it is proof. If it doesn’t prove the fact, it isn’t.

  This insight into the binary nature of American jurisprudence by the famed prosecutor provides the foundation for concluding that The Case Against Lee Harvey Oswald has a key deductive flaw. It brings us about full circle to the essential point we discussed earlier in this book: in the United States of America, a defendant is innocent until proven guilty. In addition, and as a corollary to this (with reference to the Bugliosi point above), no proposition or element is proven without evidence that actually “proves the fact for which it is offered,” as Bugliosi termed it. So, not only is the confidence level for the guilt of a defendant zero before evidence is offered, likewise is the confidence level for a fact in dispute (either proposition or element) also zero before evidence is offered. And, if the evidence offered is insufficient to prove the fact, then the confidence level for that fact, from the legal perspective, remains zero.

  When we look at the testimony of Day, we see the inescapable problem for those who maintain the conclusion that “Lee Harvey Oswald was the sole assassin of John Fitzgerald Kennedy”:

  Empty shells were found on the sixth floor of the Texas School Book Depository. Shells exhibited by the Warren Commission were tied to Oswald’s rifle. But were the shells found on the sixth floor the same shells exhibited by the Warren Commission? That’s the million-dollar question.

  Now, the one and only person who can actually tie the cartridge cases discovered on the floor of theTexas School Book Depository with the cartridge cases exhibited by the Warren Commission (the ones fired from Oswald’s rifle) is Day, the person whose name was on the shells, the person who by taking possession of those shells was the one who was supposed to mark them at the scene.

  And yet, we have seen that Day’s testimony not only fails to prove the fact for which it is offered, it actually proves the contrary! Since this testimony does in fact prove the contrary, the only avenue left open for the sponsors of the “Oswald as lone assassin” conclusion is to completely discredit the testimony of Day, to essentially throw it out as worthless. If they do that, however, that leads to the following inevitable conclusion:

  There is no testimony on the record that can verify that the shells which were discovered on the floor of the Texas School Book Depository were the shells exhibited by the Warren Commission, the ones which evidence shows was fired from Oswald’s rifle!

  And that would lead us to our final deductive syllogism which would prove, inevitably, the main thesis of this book, that there is no legitimate case against Lee Harvey Oswald. This is because a case can be no stronger than the weakest link supporting it.

  Imagine a case, a heavy one, suspended thirty feet above the ground by a chain. Now, cut one of the links out. Note that the case comes crashing to the ground:

  If the confidence level for any essential element of the case is zero, that is, in effe
ct, like removing one of the links of the chain.

  And we can see, deductively, that in fact one of the key links in the chain has been completely removed, leading to the inevitable crash. There are two syllogisms which demonstrate this, the conclusion of the first syllogism being used as a premise of the second.

  The first syllogism is as follows: