The Warren Commission and the Legal Process

By Richard M. Mosk
Case and Comment, May–June 1967, pages 13–20

Richard M. Mosk received his A.B. from Stanford in 1960 and his LL.B. from Harvard in 1963. He was a member of the staff of the Warren Commission. This article is reprinted from the Los Angeles Bar Bulletin, February, 1967, with permission.

      The current furor concerning the findings of the Warren Commission has obscured a great many facets of the Commission, its Report, and its operation.[1] By pointing out some of the procedural aspects of the Commission and its investigation that are of political and jurisprudential interest, I intend to suggest to the academic and legal communities topics for further study and critical analysis. Also, I shall briefly note a few areas of the Report that should interest practicing attorneys.
      In restricting my discussion to topics which are not now controversial, I do not imply that the recent attacks on the Warren Commission are not rebuttable. Just as lawyers will not accept a statement concerning the holdings of cases without reading them, a person interested in the Commission and its Report, before accepting the validity of any of the recent criticisms, should carefully read the Report. It is my personal conviction that the accuracy of the Report and the soundness of its conclusions will be generally accepted by serious scholars.

The Appropriate Investigator
      Presidential commissions, created by the President on his own authority and for his own purposes, have become more common in recent years. The President has utilized commissions to gather information for definite legislative goals, to guide public opinion, to reconcile conflicting interests, and for advice in carrying out laws or in coordinating federal activities. (See generally Marcy, Presidential Commissions (1945).) Certainly, the most notable presidential commissions are those that functioned as boards of inquiry (see, Id., Ch. 6, pp. 89–96), such as the Commission headed by Justice Owen Roberts “to ascertain and report the facts relating to the attack…upon the Territory of Hawaii” (Exec. Order No. 8963, 6 Fed. Reg. 6569 (1941)).
      A variety of investigations followed previous presidential assassinations; yet none of the succeeding Presidents appointed a Commission to explore and report upon the assassination of his predecessor. Following the assassination of President Lincoln, a military tribunal tried and convicted eight of John Wilkes Booth’s alleged accomplices. (See G. S. Bryan, The Great American Myth 262–266, 268; B. Pitman, The Assassination of President Lincoln and the Trial of the Conspirators 242–249 (facsimile ed. 1954).) In addition, the Bureau of Military Justice investigated the Lincoln assassination, as did a congressional committee. (H. Rept. 104, 39^th Cong., 1^st Sess. (1866).) In the aftermath of the killing of President Garfield by the crazed Charles Guiteau, the “District Attorney of Washington” conducted an investigation. (McCabe, Life of President Garfield 586 (1881).) Guiteau was tried, convicted and executed. (R. J. Donovan, The Assassins 42‑44, 58–61 (1952); Report of the Proceedings in the Case of United States v. Charles J. Guiteau 727 (1882).) McKinley’s assassination by the anarchist, Czolosz, spread rumors of anarchist conspirators,[2] but law enforcement agencies, such as the Secret Service and the Buffalo police, uncovered no conspiracy. Czolgosz was quickly tried, convicted and hanged. (Donovan, supra, at 85–88.)
      Any type of investigative commission faces inherent distrust. As one scholar has pointed out, “The cry will always be raised that presidential commissions to investigate any of the executive departments will be ‘whitewash’ commissions just as objection will always be made that congressional committees are not as interested in the facts as in politics.” (Marcy, supra, 92–93.)
      Clearly, Congressional investigations are more appropriate in certain situations, such as those involving accusations of wrongdoing in the Executive. On the other hand, a Presidential Commission would seem to be more appropriate for delving into conditions outside of Government, which may create political repercussions.
      In the United States a Presidential Commission is handicapped in that it must establish its own procedures and machinery, without any real guidelines. There is nothing in the United States Government comparable to the prestigious British Royal Commissions. (See Goodheart, supra, 40 N.Y.U. L. Rev. 404 at 412–413; Marcy, supra, at 4.) Perhaps Congress should consider creating an institutional board of inquiry, although the feasibility of such a fact-finding body in our tripartite government has been questioned.[3] (See Marcy, supra, at 4.) At least, some study ought to be given to the desirability of legislation giving the President the authority to establish Commissions and setting forth the procedures they must follow.[4]

Makeup of the Warren Commission
      Following the bizarre and tragic events of that week-end in November of 1963, the President, by executive Order, appointed a Commission “to ascertain, evaluate and report upon the facts relating to the assassination of the late President John F. Kennedy and the subsequent violent death of the man charged with the assassination.” (Exec. Order No. 11130, 28 Fed. Reg. 12789 (1963).) Congress passed a joint resolution vesting the Commission with power to subpoena witnesses and documents, administer oaths to witnesses,[5] order a witness to answer questions put to him and on his refusal to remit the matter to the Federal court for action, and grant immunity in the event a witness invoked the privilege against self-incrimination. (Public Law 88–202, 88^th Cong. S–J Res. 137, Dec. 13, 1963.)[6] The President’s Executive Order empowered the Commission to prescribe its own procedures.
      The President requested Chief Justice Earl Warren to head the Commission. It is reported that Chief Justice Stone turned down the President’s request to head what later became the Baruch Committee to investigate the rubber shortages during World War II, created by Japanese success in the war in the southwest Pacific Area. (N.Y. Times, July 7, 1942, p. 1; Marcy, supra, at 68.) Justice Roberts had been criticized for his role in the investigation of Pearl Harbor. Nevertheless, as Lord Devlin, a former English Lord of appeal, wrote, “The Lord Chief Justice of England is ex-officio the chief coroner of the realm, an office he had held since time immemorial. There is, therefore, to an English mind something fitting in the idea that the inquiry into the death of President Kennedy, in its scope and importance the greatest inquest that has ever been held, should have been presided over by the Chief Justice of the United States.” (Devlin, Death of a President: The Established Facts 215; The Atlantic Monthly 112 (March, 1965).) Moreover, the respect that Chief Justice Warren commands in this country and abroad rendered him the most obvious choice to head such a commission.
      The other Commissioners were Democratic Senator Russell, Republican Senator Cooper, Democratic Representative Boggs, Republican Representative Ford, Allen Dulles, former head of the C.I.A., and John J. McCloy who had served in several high government posts. The Commission appointed former Solicitor General, and well known Supreme Court advocate, J. Lee Rankin as Chief Counsel.
      The staff included prominent lawyers from around the country (such as Joseph Ball, former President of the State Bar of California); younger lawyers who recently had become partners in reputable law firms and compiled impressive academic records; recent law school graduates; a law professor; several Justice Department lawyers; two historians and three Internal Revenue Investigators. There were a total of 26 staff members. Also, a number of United States Supreme Court clerks checked the citations of the Report in the final days of the writing of the Report.
      Critics have commented adversely on the plethora of attorneys on the staff; yet historians played an integral role in preparing the Report, as did private psychiatrists, government officials, law enforcement personnel, and others.
      The makeup and composition of the Commission rendered it well suited to the task for which it was created. The fact that Congressional leaders and private citizens comprised a good portion of the Commission and its staff should negate any “whitewash” theory; it is hard to imagine politicians risking their careers in order to conceal any mysteries lurking within the Executive Department or elsewhere. Surely, the private citizens involved had no interests to serve, other than the ascertainment of truth. In fact, none of the staff members would have disavowed the label of a modern Zola had he uncovered any other assassins. The presence of the Chief Justice as well as non-Government and non-Congressional personnel also reduced the possibility of political influence.
      Those who have attacked the Commission have implied that it was more concerned with protecting the national interest than in discovering truth. (See generally, Epstein, Inquest (1966).) Such a charge overlooks the fact that “national interest” is, for the most part, merely a conclusional term used by individuals or groups as an argument to support a program or proposal. (See Truman, The Governmental Process, 50–51, 358–359 (1955).) It is certainly unlikely that all of the Commissioners, staff members and hundreds of government agents would unanimously conclude that the ascertainment of truth was not in the national interest.
      Some have wondered how the Commission could utilize as investigators agencies which were, in a sense, under investigation. After all, rumors were circulating that Oswald had been an agent of the F.B.I. or C.I.A. and that government agencies were engaged in a conspiracy to suppress facts.
      It would have been impossible, however, for the Commission to gather together sufficient trained personnel and laboratory equipment to engage in initial investigations as thorough and as extensive as those conducted by the government agencies. The F.B.I. alone conducted over 25,000 interviews. Moreover, it would have been difficult, if not impossible, for the Commission to obtain essential information from abroad except through certain official channels. Hence the Commission had to rely, to a certain extent, on the government agencies.
      The Commission, by relying on a number of government investigative agencies, was able to scrutinize and check the conclusions of any one body. Sometimes, the Commission used independent experts from State and City government to supplement or verify information. In addition, the Commission and its staff interviewed hundreds of witnesses and often requested the agencies to explain their conclusions. The, the Commission began with the material of government agencies and utilized government agents, but never ceased to review and question the information supplied to them. (See Report, pp. x–xiv.)

Operation of the Commission
      The Commission asserted that it was not functioning as a court of law or prosecutor “but as a fact-finding agency committed to the ascertainment of the truth.” (Report, p. xiv.) As Paul Freese, a Los Angeles attorney, noted in an interesting article (The Warren Commission and the Fourth Shot: A Reflection of the Fundamentals of Forensic Fact-Finding, 40 N.Y.U. L. Rev. 424, 429 (1965)), “The Warren Commission was designed and operated as a forensic fact-finding body.” The Commission, unlike courts, did not have to rely on the presentation of evidence before it, and was not bound by restrictive rules of evidence. Yet each witness was entitled to be represented by counsel and was so advised. Also, witnesses could, upon request, have an open hearing. (Report, p. xiii.)
      The Commission did not utilize an adversary system. Although lawyers persist in extolling the virtues of the adversary system, I doubt whether truth would have emerged from a Commission that presided over a bitter proceeding in which evidence would have been constructed and dissected towards partisan ends, and analyzed and reconstructed in distorted summations. (See Marshall, Law and Psychology in Conflict (1966).) Moreover, such a method might have resulted in the chaos that sometimes accompanies Congressional Committee hearings.
      The Commissioners and each member of the staff probed inconsistencies and viewed evidence skeptically, thereby attempting to retain some of the benefits of an adversary proceeding. In addition, as mentioned earlier, a number of Supreme Court clerks edited and checked the citations of the Report. Perhaps some sort of “devil’s advocate” within the Commission might have been beneficial. Whether or not such a program would have been logistically possible in view of the extent of the investigation is problematical.
      As an additional check, the Commission appointed the President of the American Bar Association “to participate in the investigation and to advise the Commission whether in his opinion the proceedings conformed to the basic principles of American justice.” (Report, p. xiv.)
      Some have criticized the Commission for holding hearings in private. It should be noted that the proceedings were not secret. The witness could demand an open hearing (Report, p. xiii), purchase a transcript of his testimony, and repeat what he had said in the hearings. Sound reasons supported such private hearings. As one commentator has stated, “Now whatever may be said for our open trial system, it is not one to encourage people to give evidence voluntarily or freely; many witnesses are terrified of speaking in public. A study of the fifteen volumes in which the evidence collected by the Commission has been published, shows that those witnesses, who at first seemed to be hesitant and nervous, seemed to gain confidence in the quiet atmosphere of a private hearing.” (Goodheart, supra, 40 N.Y.U. L. Rev. at 405.)
      The Commission encouraged witnesses to relate any rumors which might provide leads to a conspiracy. Such hearsay testimony, if made public and taken out of context, could have harmed reputations of innocent third persons. Also, open hearings could have interfered with the trial of Jack Ruby, which was not concluded until midway through the investigation. (See Report, pp. xiii–xiv.)
      Paul Freese wrote in his article, “As the arbiter of its own procedures, and without any responsible agency or party critically examining its investigative hypothesis or its method of handling witnesses, the Commission was by design made susceptible to error through following any bias existing or developed by its own investigation.” (40 N.Y.U. L. Rev., supra, at 453.) Freese suggested that the “fact gathering” and “fact assessment” functions should have been split.[7]
      Actually the “fact-gathering” and “fact-assessment” procedures were not entirely meshed. The Commission started with a five-volume investigative report submitted by the F.B.I. and the underlying materials and reports of the Secret Service, the Department of State and Texas officials. (Report, pp. xi–xiii.) Thus, the Commission began with the conclusions of investigative agencies buttressed by the specific evidence relied upon by those agencies. Accordingly, a substantial amount of “fact gathering” had occurred prior to the Commissions’ investigation. The Commission and the staff examined the evidence and conclusions critically, retraced the work of the investigative agencies and obtained further information when gaps or questions still remained. Hence the Commission’s investigation came only after an assessment of the materials submitted by the governmental agencies. Moreover, the staff was separated from the Commission in the sense that the staff presented evidence to the Commissioners, who engaged primarily in “fact assessment.”
      The ability of the Commission to gather and assess evidence it found relevant, without having to rely on the presentations of others, far outweighed any propensity for bias inherent in the Commission’s procedures.
      In discussing the mechanics of the Commission, one can undoubtedly conjure up some nice evidentiary questions (see Scobey, A Lawyer’s Notes on the Warren Commission, 51 A.B.A. Jour. 39 (1965)); yet, as the Commission pointed out, the procedures it followed “in developing and assessing evidence necessarily differed from those of a court conducting a criminal trial of a defendant present before it, since under our system there is no provision for a posthumous trial.” (Report, p. xiv.)
      The Commission further stated that it “functioned neither as a court presiding over an adversary proceeding nor as a prosecutor determined to prove a case, but as a fact-finding agency committed to the ascertainment of truth. In the course of the investigation of the facts and rumors surrounding these matters, it was necessary to explore hearsay and other sources of information not admissible in a court proceeding, obtained from persons who saw or heard and others in a position to observe what occurred.”
      Accordingly, the Commission readily accepted evidence that would normally have been excluded in a trial, such as privileged communications, since to exclude that evidence would have involved factors other than reliability.[8] Some evidence would have been excluded from a trial on the theory that its probative value was outweighed by its prejudicial effect. For example, evidence of Oswald’s attempt on the life of General Walker might have been inadmissible in a trial. (Compare People v. Molineaux, 61 N.E. 286 (N.Y. 1901) with People v. Riser, 47 Cal.2d 566, 578 (1956); see 25 Ind. L.J. 64 (1959); Blum, A Proposed Analytical Method for the Determination of the Admissibility of Evidence of Other Offenses in California, 7 U.C.L.A. L. Rev. 463 (1960).) Yet, evidence of other crimes is relevant; and the Commission considered the evidence of the Walker shooting probative, but pointed out that it was by no means indispensable. (Report, p. 187.)
      It has been argued that the Commission relied too heavily on eye-witness testimony that was at best imperfect. The Commission was careful, however, to qualify the use of such evidence (Report, pp. 145–46) or to point out that the evidence was not essential, but merely corroborative. (Report, p. 168.)

A Wealth of Information
      The Warren Commission in its report made many unheralded contributions. For example, a number of Commission recommendations have resulted in Congressional executive action.
      The Commission recommended a bill to make the assassination of the President and certain other federal officers a federal crime. (Report, pp. 454–55.) Such a statute was necessary to insure that Federal criminal jurisdiction would extend to assassination of certain federal officers, thus permitting Federal investigations of such crimes. Although state rightists and inertia had blocked such legislation in the past,[9] Congress enacted a statute essentially following the bill proposed by the Commission. (Title 18, U.S.C.A. § 1751.)
      As a result of specific Warren Commission recommendations (Report, pp. 456–69) a number of steps have been taken to insure greater presidential protection. A recent Treasury Department reorganization provided for the more effective operation of the Secret Service (which is primarily responsible for presidential protection) and other law enforcement agencies; procedures for greater liaison among federal and state law enforcement agencies have been established; and preventive intelligence and Secret Service techniques have been markedly improved.
      The Commission’s discussion of the activities of the press and of the local police following the assassination, particularly with respect to the dissemination of news and the Commission’s recommendation regarding the problem (Report, pp. 27, 240–42), rejuvenated action and discussion on the delicate fair trial-free press issue. (See Jaffe, Trial by Newspaper, 40 N.Y.U. L. Rev. 504 (1965); S. Mosk, Free Press and Free Trial—Sharing Responsibility, 5 Santa Clara Law 107 (1965).)
      The materials on State Department practices and procedures, especially with regard to passports and immigration, constitute a valuable source of information in the area. (Report, Appendix XV, pp. 746–78.) The Report contains a lengthy discussion of the legal basis for certain State Department and Immigration and Naturalization Service actions.[10]
      Attorneys engaged in the practice of criminal law and criminologists can find appendices and other materials in the Report describing the applicable principles of crime detection. The Report is a virtual textbook of polygraph tests (Report, pp. 807–16), firearms and firearm identification (including paraffin tests and neutron-activation analyses (id. at 547–62); fingerprints and palmprints (id. at 563–79); wound ballistics experiments (id. at 580–85); hairs and fiber identification (id. at 586–92); photograph identification tests to determine whether pictures are composites (id. at 592–97); and cryptology (microdots). (Commission Exhibits 2768, 2772, 3042.) In addition, the Report contains a good deal of information concerning autopsies and medicine. (See Report, pp. 516–46.) It also is one of the few public documents in which one can find actual reports and working papers of the F.B.I., the Secret Service, the State Department and other agencies.
      Other interesting sections are a history of Presidential protection, including accounts of prior assassinations; descriptions of the relationships between various governmental agencies, especially regarding Presidential protection; a biography of Lee Harvey Oswald; and a biography of Jack Ruby. Finally, the testimony of the witnesses should provide a great deal of raw material for social scientists.
      Thus, the Report of the Warren Commission and the 26 volumes of testimony and exhibits cannot be overlooked as an important and useful document in a great many disciplines.[11]

Conclusion
      In trials and in most investigations, the fact-finder renders a decision, without attempting to justify that decision to others. The Warren Commission, however, carefully explained its procedures and techniques, set forth its decision in terms of all of the evidence it gathered. In so doing, the Warren Commission rendered itself vulnerable to attack; but it also left a record showing a complex interplay between governmental and legal institutions. Hopefully, those in the academic and legal communities will examine the Commission’s efforts, not only to appraise its conclusions but also to gather information on the suitability and effectiveness of current institutions, doctrines and procedures in coping with routine as well as abnormal events.

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