The three jurists and the physical evidence
(Draft, 6 August 2000)
Let the musical world have “The
Three Tenors”—the JFK world has “The Three Jurists.” By that, I mean, of
course, the three distinguished law scholars who published early articles
commenting on the Warren Report and its conclusions: Herbert L. Packer, Alfredda
Scobey, and Lord Devlin. Herbert L. Packer was a well-published professor of law
at Stanford University. His article on the Warren Report, "A
Measure of the Achievement," appeared in The Nation on 2
November 1964. It uses classic legal reasoning to support the main conclusions
of the report. Alfredda Scobey was Law Assistant to the Court of Appeals of
Georgia when she wrote “A
Lawyer’s Notes on the Warren Commission Report” for the January
1965 issue of the American Bar Association Journal. Before that, she had
been a staff member of the Warren Commission. Her article focuses on evidentiary
aspects of the Warren Report. Lord Devlin was Justice of the High Court,
King’s Bench Division, in Britain, from 1948 to 1960 and Lord of Appeals after
that. His article “Death
of a President: The Established Facts” appeared in the March 1965 issue of
the Atlantic Monthly. It offers a broad but analytical summary of the
main points in the report.
Here is what I find so interesting about these articles. Three jurists, all from three different backgrounds and writing independently from three locations far removed from one another, nonetheless produced articles that approached the evidence in the same fundamental way—they first discussed the full range of evidence available and restricted themselves to the most reliable subset in order to understand the assassination. The writers all found that this subset of strongest evidence, which they called by various names, was sufficient to fully support the Commission’s conclusion that Lee Harvey Oswald killed John F. Kennedy unaided.
I think that this convergence of independent efforts is so significant that I reproduce below the relevant passages from each writer so that you can compare them. First in chronological order comes Professor Packer, who is the most explicit of the three:
…What is primarily important is the physical facts [emphasis added] of the assassination. We now have as reliable evidence on that score as we are ever likely to get.…I do not propose to analyze the evidence in detail.…What I shall do is separate out the central core of evidence [emphasis added] that demonstrates beyond peradventure that one man, acting alone, fired all shots that were fired at the Presidential limousine and that the man was, beyond a reasonable doubt, Lee Harvey Oswald.
(1) All of the wounds sustained by President Kennedy and by Governor Connally were inflicted by bullets fired from the rear and above. This is demonstrated by the medical report on Governor Connally and the autopsy report on the President, as corroborated by (a) examination of the bullet holes in the President’s clothing, which showed that the first shot that hit him entered his back and exited through the lower part of his neck; (b) the damage to the inside of the windshield caused by a spent bullet fragment; (c) the absence of any damage that could have been caused by a bullet or bullets fired from the front.
(2) All of the shots were fired from the sixth-floor window of the Texas School Book Depository (TSBD). This is demonstrated by (a) the re-enactment of the shooting accomplished with the aid of the motion picture of the actual shooting taken by Abraham Zapruder, which proved consistent with the medical and ballistics evidence with respect to the wounds; (b) the presence of three used cartridge cases on the floor near the window from which the shots were hypothesized to have been fired; (c) the presence of a rifle on the same floor; (d) the absence of any bullets or bullet fragments not accounted for by the fire from the TSBD.
(3) The shots were fired from the Mannlicher-Carcano rifle found on the sixth floor of the TSBD. This is demonstrated by the results of the ballistic tests on the bullet and bullet fragments that were recovered, and on the cartridge cases found on the sixth floor of the TSBD.
(4) Oswald was the owner of the rifle used in the assassination. This is demonstrated by (a) identification of the handwriting on the order for the rifle, its envelope and the accompanying money order as Oswald’s; (b) the use in ordering the rifle of a false name corresponding to that on spurious identification documents found in Oswald’s possession.
(5) The shots could have been and probably were fired by Oswald. This is demonstrated by (a) Oswald’s admitted presence in the TSBD at the time of the assassination; (b) the presence on the southeast corner of the sixth floor of a homemade paper bag bearing Oswald’s left index finger print and right palm print; (c) the presence on the rifle barrel of Oswald’s palm print; (d) the presence in a crevice on the rifle of fibers taken from the shirt worn by Oswald at the time of his arrest; (e) the absence of any evidence pointing to the probability that any other person in the TSBD fired the shots.
That is the minimal case against Oswald. It will be noticed that in no detail does it require the acceptance of eyewitness testimony, disputed or undisputed. It is corroborated by the weight of the available eyewitness testimony, but for our purpose we need not even consider that [emphasis added]. It is also corroborated by the physical evidence demonstrating that Patrolman Tippit was killed by bullets fired from a revolver found in Oswald’s possession at the time of his arrest, but we need not consider that [emphasis added].
Next comes Miss Scobey, who writes at intermediate length:
of Physical and Documentary Evidence
If we assume that our defense counsel was very, very lucky, he would be able, if Oswald stood trial, either to exclude or impeach the testimony of a large number of key persons whose accounts add so much to the strength of the report. This is not to say that what would be left, granting the unlikely event of success in all these endeavors, would leave room for a reasonable doubt of Oswald’s guilt, but the surprising fact is that the conviction in such an event would depend to an amazing degree on documentary evidence and its interpretation by experts. In other words, the circumstantial evidence is either more cogent or less subject to attack than the direct.
Both the rifle recovered in the Depository Building and the pistol found on Oswald’s person were traced to his possession by documents with the aid of handwriting experts. The snapshots which Marina Oswald gave to police officers also are established by expert testimony identifying the rifle and pistol Oswald was holding, proving that the pictures were made with his camera. While testimony that Oswald brought the dismantled rifle to the Depository Building is subject to attack because both the Fraziers many times described the brown package Oswald brought from Irving to Dallas on the day of the assassination as being much smaller than it would have had to be to contain the weapon, the bag itself found at the scene was shown to have been made from materials to which Oswald had access, and the mute testimony of the object overpowers the statements of the witnesses. All fingerprints on the boxes from which the assassin fired were latent; sophisticated criminological procedures were necessary to develop and identify them. Expert testimony further links the rifle with Oswald through the shirt fibers caught on its surface. Other testimony established that the bullet found in the Presidential limousine was fired by the rifle that was recovered, while the autopsy reports and ballistics firing tests make plain the manner in which the shots hit their mark. If the green and brown blanket found in the Paine garage were admitted, expert testimony links fibers from it with those in the brown paper bag, suggesting that Oswald removed the rifle from the blanket and carried it to the Depository Building in the bag, while human hairs found in the blanket itself were linked with body hairs taken from Oswald after his arrest.
To the lawyer and prosecuting attorney, the Warren Report, conceived as a criminal investigation carried to utmost limits, illustrates the importance of utilizing the laboratory and the expert as sources of the most cogent evidence in criminal proceedings. It also points up the usual difficulties in dealing with the testimony of living witnesses. To the historian, on the other hand, it displays the wealth of detail without which an understanding of the environment and background of the tragedy is impossible.
Last comes Lord Devlin, the briefest of the three:
If the case against Oswald is stripped of everything that does not amount to practical certainty, what is left is this. He was in the building at the time of the assassination of the President and could have been on the sixth floor. The President was killed by a gun which belonged to Oswald and which he falsely denied buying or owning. The man who fired it was not unlike Oswald. Three quarters of an hour later Patrolman Tippit was shot with a revolver belonging to Oswald. Oswald’s jacket was found along the path taken by the murderer in flight. Then Oswald was found with the revolver in his possession, and he used violence in resisting arrest. He was a man who had attempted assassination before. In the report these bare bones are fully fleshed. An exhaustive investigation has produced a mass of corroborative evidence and nothing at all to shake the natural conclusion.
So there you have it. Although the writers use different
words—Packer constructing his
"minimal case against Oswald," Scobey stressing "the importance
of utilizing the laboratory and the expert as the sources of the most cogent
evidence," and Lord Devlin constructing a case that is "stripped of
everything that does not amount to practical certainty"—
they are all doing the same thing: depending on the
strongest evidence to circumscribe the eventual solution.
That's the general similarity. Now let us compare the details. Packer states that of primary importance are the “physical facts,” the core of which leads to five conclusions:
All the wounds to Kennedy and Connally came from bullets fired from the
rear and above.
2) All the shots were fired from the sixth floor of the TSBD.
3) The shots were fired from the Mannlicher-Carcano rifle found on the sixth floor.
4) Oswald owned that rifle.
5) Oswald could have fired the shots and probably did.
This “minimal case” does not require evidence from witnesses or from the shooting of Tippit. It stands on its own. The evidence that it uses is:
For conclusion 1:
a) Connally’s medical report and Kennedy’s autopsy report.
b) The bullet holes in Kennedy’s clothing.
c) The damage to the inside of the windshield from a spent bullet fragment.
d) The absence of damage from a bullet fired from the front.
For conclusion 2:
a) The FBI’s reenactment of the shooting based on the Zapruder film.
b) The three cartridge cases found by the sixth-floor window.
c) The rifle found on the sixth floor.
d) The absence of bullets or fragments from any other weapon.
For conclusion 3:
a) Ballistic tests on bullets and fragments recovered.
b) The cartridge cases found near the sixth-floor window (same as 2b).
For conclusion 4:
a) The handwriting on the order form for the rifle, its envelope, and the money order.
b) Ordering the rifle with the same false name as found in Oswald’s wallet.
For conclusion 5:
a) Oswald’s admitted presence in the TSBD during the assassination.
b) The homemade paper bag with Oswald’s fingerprint and palmprint found near the sixth-floor window.
c) Oswald’s palmprint on the rifle barrel.
d) Fibers on the rifle that matches Oswald’s shirt when he was arrested.
e) The lack of evidence for anyone else to have fired the shots from the TSBD.
By my count, this comprises 17
pieces of positive evidence and three pieces of negative evidence.
Miss Scobey notes the surprising fact that the physical evidence, all of which is indirect, is much stronger than the witness evidence, much of which is direct. She notes that if there had been a trial, any conviction would have depended to an “amazing degree” on the “documentary evidence and its interpretation by experts,” i.e., the physical evidence. Her key physical evidence was:
The rifle and pistol that were traced to Oswald by handwriting experts.
2) The snapshots of Oswald holding the rifle and pistol that were traced to his camera.
3) The brown bag that was made from materials that Oswald had access to.
4) The fingerprints on the boxes that were used to steady the rifle were Oswald’s.
5) Fibers on the rifle’s surface that further link it to Oswald.
6) The bullet from the presidential limousine that was fired from Oswald’s rifle.
7) The autopsy and ballistic tests that show that the bullets were fired from a position consistent with Oswald’s.
8) Fibers from the blanket in the Paines’ garages that were matched some found in the brown paper bag.
9) Human hairs found in the blanket that matched Oswald’s.
These comprise about 15 pieces of physical evidence, all
but three of which were on Packer’s list.
Lord Devlin’s list of evidence that “amounted to practical certainty” included:
Oswald was in the TSBD during the assassination and could have been on
the sixth floor.
2) Oswald owned and possessed the rifle that killed the president.
3) Oswald denied buying or owning that rifle.
4) The man in the window who shot Kennedy looked like Oswald.
5) Tippit was shot with Oswald’s pistol.
6) Oswald’s jacket was found along the route that Tippit’s assassin fled.
7) Oswald had his pistol when he was arrested.
8) Oswald resisted arrest violently.
9) Oswald had earlier tried to assassinate a public figure.
Although Devlin went beyond physical evidence by including
accepted events that were not in dispute (such as that Oswald resisted arrest
violently), half of his evidence (six of 12 items) were still physical
evidence (the rifle, the pistol, the order forms, etc.).
So two of the three distinguished jurists based their case completely on physical evidence, and the other used half physical evidence and half events whose truth was accepted. The message from this is clear: It’s all well and good to initially survey the full range of evidence available for a crime, but when the time comes to dig in and find out who did it, you first must discard everything but what you can be certain of, most of which is physical evidence validated and interpreted by experts. The field of JFK “research” would do well to learn from these distinguished jurists.
The careful reader will notice that in choosing to deal with only the most reliable evidence, these jurists are taking an approach very similar to the one I use: list all the evidence, divide it into “strong” and “weak,” where the former is validated physical evidence and the latter is everything else, and then proceed with only the strong evidence. If we just expand our “strong” category to include events that no one challenges, our reliable evidence matches theirs. Thus the procedure that stems from classical critical and analytical thinking is the same as the highest legal procedure. The careful reader will also notice that this joint procedure is also the one that best agrees with common sense: deal only with the strongest evidence if you want your conclusion to be reliable.
It is patently obvious that incorporating uncertain (weak) evidence will inevitably yield uncertain conclusions. It is even more obvious that if you emphasize that weak evidence, a perverse procedure if there ever was one, your “conclusions” will be meaningless. And yet that is exactly what the JFK critics have done by ignoring the core of physical evidence and wandering into the land of deep uncertainty. Why would anybody do such a self-defeating thing? I submit that there are only three possible reasons: the critics didn’t know the difference between strong and weak evidence, they knew the difference but didn’t understand or accept its consequences, or they used the weak evidence because that was the only way to get the answer they believed beforehand. Although I don’t pretend to be able see into anyone’s soul and discern their true reasons for ignoring strong evidence, it almost doesn’t matter because none of these three reasons are justifiable. Until the JFK critics come to terms with these basic principles of evidence, they will never understand the JFK assassination. And that is exactly the story of the past 36 years.