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PART I:
THE PRESUMPTION OF GUILT
A Note on Citations
References to the 26-volume "Hearings Before the President's Commission on the Assassination of President Kennedy" follow this form: volume number, H, page number; thus, for example, 4H165 refers to volume 4, page 165. Exhibits introduced in evidence before the Commission are designated CE and a number; CE399, for example, refers to the Commission's 399th exhibit. References to the "Report of the President's Commission on the Assassination of President Kennedy" (Washington, D.C.: Government Printing Office, 1964) follow this form: R, page number; R150, for example indicates page 150 of the Report. Most references to the Commission's unpublished files deposited in the National Archives follow this form: CD, number: page number; CD5:260, for example, indicates page 260 of Commission Document 5.
Chapter 1
Assassination: The Official Case
As stated in its Report, one of the Warren Commission's main objectives was "to identify the person or persons responsible for both the assassination of President Kennedy and the killing of Oswald through an examination of the evidence" (Rxiv). Accordingly, the Commission produced one person whom it claimed to be solely responsible for the assassination: Lee Harvey Oswald (R18-23). Because the scope of the present study is limited to Oswald's role in the shooting, it is vital that we first understand the foundations for the Commission's conclusion that Oswald was guilty.
In this chapter I will deal solely with the evidence that is alleged to prove Oswald's guilt, as presented in the Report. I will make no attempt to criticize the selection of evidence, but rather will take the final report at face value, probing its logic and structure so that it can be judged whether the determination of Oswald's guilt is warranted by the "facts" set forth.
The first and most vital step in determining who shot at the President involved ascertaining the location(s) and weapon(s) from which the shots came. In a chapter entitled "The Shots From the Texas School Book Depository," the Commission "analyzes the evidence and sets forth its conclusions concerning the source, effect, number and timing of the shots that killed President Kennedy and wounded Governor Connally" (R61).
The Scene
The scene of the assassination was Dealey Plaza, the so-called heart of Dallas, made up of three streets that converge at a railroad overpass. At the opposite side of the plaza are several buildings, many city owned. Along each side leading to the underpass are grassy banks adorned with shrubbery and masonry structures. Two grassy plots separate the three streets--Elm, Main, and Commerce--all of which intersect with Houston at the head of the plaza. The shooting occurred as the Presidential limousine cruised down Elm Street toward the underpass.
One of the major conclusions of the Commission is that the shots "were fired from the sixth floor window at the southeast corner of the Texas School Book Depository" (R18), a book warehouse located on the northwest corner of Elm and Houston. (Oswald was employed in this building.) Several factors influenced this conclusion.
The Report first calls upon the witnesses who indicated in some way that the shots originated from this source. It refers to two spectators who claimed to see "a rifle being fired" from the Depository window, two others who "saw a rifle in this window immediately after the assassination," and "three employees of the Depository, observing the parade from the fifth floor," who "heard the shots fired from the floor immediately above them" (R61).
The Limousine
Discussed next is the presidential automobile (R76-77). On the night of the assassination, Secret Service agents found two relatively large bullet fragments in the front seat of the car--one consisting of the nose portion of a bullet, the other a section of the base portion. An examination of the limousine on November 23 by FBI agents disclosed three very small lead particles on the rug beneath the left jump seat, which had been occupied by Mrs. Connally, and a small lead residue on the inside surface of the windshield, with a corresponding series of cracks on the outer surface. All of the metallic pieces were compared by spectrographic analysis by the FBI and "found to be similar in metallic composition, but it was not possible to determine whether two or more of the fragments came from the same bullet." The physical characteristics of the windshield damage indicated that it was struck on the inside surface from behind, by a bullet fragment traveling at "fairly high velocity."
Ballistics
In a crime involving firearms, the ballistics evidence is always of vital importance. This was especially true of the ballistics evidence adduced by the Commission relating to the President's murder. As used in the Report, this evidence seems to have a clarifying effect, bringing together loose ends and creating a circumstantial but superficially persuasive case. The relevant discussion is summarized in the Report as follows, based on unanimous expert testimony:
The nearly whole bullet found on Governor Connally's stretcher at Parkland Memorial Hospital [the President and the Governor were rushed to this hospital after the shooting] and the two bullet fragments found on the front seat of the Presidential limousine were fired from the 6.5-millimeter Mannlicher-Carcano rifle found on the sixth floor of the Depository Building to the exclusion of all other weapons.
The three used cartridge cases found near the window on the sixth floor at the southeast corner of the building were fired from the same rifle which fired the above-described bullet and fragments, to the exclusion of all other weapons. (R18)
Here the Commission has related a rifle and three spent cartridge cases found at the scene of the crime to a bullet found in a location presumably occupied by Governor Connally as well as to fragments found in the car in which both victims rode. The circumstantial aspect of the ballistics evidence presented by the Commission is this: it does not directly relate the weapon to a specific shooter nor the bullet specimens to a specific victim's body.
Autopsy
An autopsy is a central piece of evidence in violent or unnatural death. In the case of death by gunshot wounds, an autopsy can reveal a wealth of information, indicating the type(s) of ammunition used by the assailant(s), as well as the general relationship of the gun to the victim's body. Bullets or fragments found in the body can sometimes conclusively establish the specific weapon used in the crime. The medical evidence used by the Commission emanated from (a) the doctors who observed the President's and the Governor's wounds at Parkland Hospital, (b) the autopsy on the President performed at the Bethesda Naval Hospital, Maryland, on the night of the assassination, (c) the clothing worn by the two victims, and (d) ballistics tests conducted with the Carcano found in the Depository and ammunition of the same type as that found in the hospital and the car. From this information the Commission drew the following conclusions:
The nature of the bullet wounds suffered by President Kennedy and Governor Connally and the location of the car at the time of the shots establish that the bullets were fired from above and behind the Presidential limousine, striking the President and the Governor as follows:
(1) President Kennedy was first struck by a bullet which entered at the back of his neck and exited through the lower front portion of his neck, causing a wound which would not necessarily have been lethal. The President was struck a second time by a bullet which entered the right-rear portion of his head, causing a massive and fatal wound.
(2) Governor Connally was struck by a bullet which entered on the right side of his back and travelled downward through the right side of his chest, exiting below his right nipple. This bullet then passed through his right wrist and entered his left thigh where it caused a superficial wound. (R18-19)
For each set of wounds, the Report cites ballistics tests in support of the notion that the injuries observed were consistent with bullets fired from the Carcano (R87, 91, 94-95). In two instances it is asserted that the tests further indicated that the wounds could have been produced by the bullet specimens traceable to the {specific} Carcano found in the Depository, as opposed to merely being consistent with a {similar} rifle firing similar ammunition (R87, 95).
The Trajectory
"The trajectory" is the next topic of discussion in the Report, which says: " . . . to insure that all data were consistent with the shots having been fired from the sixth floor window, the Commission requested additional investigation, including analysis of motion picture films of the assassination and on-site tests" (R96). The films referred to by the Commission were those taken of the assassination by spectators Abraham Zapruder, Orville Nix, and Mary Muchmore. Only Zapruder's film, taken from the President's side of the street, provided a photographic record of the entire shooting. (Zapruder's position is shown in the sketch of Dealey Plaza.)
Motion picture footage is composed of a series of still pictures called "frames" taken in extremely rapid succession which, when projected at approximately the same speed of exposure, create the illusion of motion. The frames of the Zapruder film were numbered by the FBI for convenient reference, and it is not until frame 130 that the President's car appears in the film. From that point on, this is basically what we see in terms of frames: The car continues down Elm for a brief period, gradually approaching a road sign that loomed in Zapruder's view. At frame 210, President Kennedy goes out of view behind this sign. Governor Connally, also temporarily blocked from Zapruder's sight, first reappears in frame 222. At 225 the President comes into view again, and he has obviously been wounded, for his face has a grimace and his hands are rising toward his chin. Within about ten frames, the Governor is struck; he manifests a violent reaction. In the succeeding frames we see Mrs. Kennedy reach over to help her husband, her attention temporarily diverted by Connally, who is screaming. Finally, at frame 313, the President is struck in the head, as can be clearly seen by the great rupturing of skull and brain tissues. Mrs. Kennedy scrambles frantically onto the trunk of the limousine and is forced back into her seat by a Secret Service agent who had run to the car from the follow-up vehicle. Subsequent to the head shot, the limousine accelerated in its approach toward the underpass. Once the car is out of view, the film stops. The Nix and Muchmore films depict sequences immediately before, during, and after the head shot.
Examination of Zapruder's camera by the FBI established that an average of 18.3 film frames was exposed during each second of operation; thus the timing of certain events could be calculated by allowing 1/18.3 seconds for the action depicted from one frame to the next. Tests of the "assassin's" rifle disclosed that at least 2.3 seconds (or 41-42 film frames) were required between shots (R97).
The on-site tests were conducted by the FBI and Secret Service in Dealey Plaza on May 24, 1964. A car simulating the Presidential limousine was driven down Elm Street, as depicted in the various assassination films, with stand-ins occupying the general positions of the President and the Governor. An agent situated in the sixth-floor window tracked the car through the telescopic sight on the Carcano as the assassin allegedly did on November 22. Films depicting the "assassin's view" were made through the rifle scope (R97). During these tests it was ascertained that the foliage of a live oak tree would have blocked a sixth-floor view of the President during his span of travel corresponding to frames 166 through 210. An opening among the leaves permitted viewing the President's back at frame 186, for a duration of about 1/18 second (R98).
The Commission concluded that the first shot to wound the President in the neck occurred between frames 210 to 225, largely because (a) a sixth-floor gunman could not have shot at the President for a substantial time prior to 210 because of the tree, and (b) the President seems to show an obvious reaction to his neck wounds at 225. Exact determination of the time of impact was prevented because Mr. Kennedy was blocked from Zapruder's view by a road sign from 210 to 224 (R98, 105).
The Report next argues that the trajectory from the sixth-floor window strongly indicated that a bullet exiting from the President's throat and traveling at a substantial velocity would not have missed both the car and its occupants. No damage to the limousine was found consistent with the impact of such a missile. "Since [the bullet] did not hit the automobile, [FBI expert] Frazier testified that it probably struck Governor Connally," says the Report, adding, "The relative positions of President Kennedy and Governor Connally at the time when the President was struck in the neck confirm that the same bullet probably passed through both men" (R105). The evidence allegedly supporting this double- hit theory is then discussed, and the Commission concludes that one bullet probably was responsible for all the nonfatal wounds to the two victims (R19).
Number of Shots
"The weight of the evidence indicates that there were three shots fired," declares the Report (R19). This conclusion is based not so much on witness recollections as on the physical evidence at the scene-- namely, the presence of three cartridge cases (R110-11). The Commission reasons that, because (a) one shot passed through the President's neck and probably went on to wound the Governor, (b) a subsequent shot penetrated the President's head, (c) no other shot struck the car, and (d) three shots were fired, "it follows that one shot probably missed the car and its occupants. The evidence is inconclusive as to whether it was the first, second, or third shot which missed" (R111).
Time Span
Determination of the time span of the shots, according to the Commission's theory, is dependent on which of the three shots missed. As calculated by use of the Zapruder film, the time span from the first shot to wound the President to the one that killed him was 4.8 to 5.6 seconds. Had the missed shot occurred between these two, says the Report, all the shots could still have been fired from the Carcano, which required at least 2.3 seconds (or 42 frames) between successive shots. If the first or third shots missed, the time span grows to at least 7.1 to 7.9 seconds for the three shots.
Thus, the Commission concluded:
that the shots which killed President Kennedy and wounded Governor Connally were fired from the sixth-floor window at the southeast corner of the Texas School Book Depository Building. Two bullets probably caused all the wounds suffered by President Kennedy and Governor Connally. Since the preponderance of the evidence indicated that three shots were fired, the Commission concluded that one shot probably missed the Presidential limousine and its occupants, and that the three shots were fired in a time period ranging from approximately 4.8 to in excess of 7 seconds. (R117)
The Assassin
In a preface to its discussion of the evidence relevant to the identity of President Kennedy's assassin, the Report adds a new conclusion to those of its preceding chapter. Here it asserts not only that it has established the source of the shots as the specific Depository window, but also "that the weapon which fired [the] bullets was a Mannlicher- Carcano 6.5-millimeter Italian rifle bearing the serial number C2766" (R118). Although it had previously traced the found bullet specimens to this rifle discovered in the Depository, the Report never specifically concluded that these bullets were responsible for the wounds. Making such an assertion at this point provided the premise for associating the owner of that rifle with the murder.
Who owned the rifle? The Report announces:
Having reviewed the evidence that (1) Lee Harvey Oswald purchased the rifle used in the assassination [although the name under which the rifle was ordered was "A. Hidell," the order forms were in Oswald's handwriting (R118-119)], (2) Oswald's palmprint was on the rifle in a position which shows that he had handled it while it was disassembled, (3) fibers found on the rifle most probably came from the shirt Oswald was wearing on the day of the assassination [although the Commission's expert felt that these fibers had been picked up "in the recent past," he could not say definitely how long they had adhered to the rifle (R125)]. The Commission never considered the possibility that they were deposited on the rifle subsequent to Oswald's arrest.], (4) a photograph taken in the yard of Oswald's apartment shows him holding this rifle [the photographic expert could render no opinion as to whether the rifle shown in these pictures was the C2766 and not another rifle of the same configuration (R127)], and (5) the rifle was kept among Oswald's possessions from the time of its purchase until the day of the assassination [The Commission cites no evidence that the specific C2766 rifle was in Oswald's possession.], the Commission concluded that the rifle used to assassinate President Kennedy and wound Governor Connally was owned and possessed by Lee Harvey Oswald. (R129)
At this point the Commission has related Oswald to the President's murder in two ways. It has posited the source of the shots at a location accessible to Oswald, and has named as the assassination weapon a rifle purchased and possibly possessed by Oswald. This, although circumstantial, obviously laid the foundation for the ultimate conclusion that Oswald was the assassin. Now his activities on the day of the shooting had to be considered in light of this charge.
In a section headed "The Rifle in the Building," the Report takes up the problem of how the C2766 rifle was brought into the Depository. The search for an answer was not difficult for the Commission. Between Thursday night, November 21, and Friday morning, Oswald had engaged in what could have been construed as incriminating behavior. As the Report explains,
During October and November of 1963, Lee Harvey Oswald lived in a roominghouse in Dallas while his wife and children lived in Irving, at the home of Ruth Paine, approximately 15 miles from Oswald's place of work at the . . . Depository. Oswald travelled between Dallas and Irving on weekends in a car driven by a neighbor of the Paine's, Buell Wesley Frazier, who also worked at the Depository. Oswald generally would go to Irving on Friday afternoon and return to Dallas Monday morning. (R129)
On Thursday, November 21, Oswald asked Frazier whether he could ride home with him to Irving that afternoon, saying that he had to pick up some curtain rods for his apartment. The Report would lead us to believe that Oswald's Irving visit on the day prior to the assassination was a departure from his normal schedule. Adding further suspicion to this visit, the Report asserts "It would appear, however, that obtaining curtain rods was not the purpose of Oswald's trip to Irving on November 21," noting that Oswald's apartment, according to his landlady, did not need curtains or rods, and no curtain rods were discovered in the Depository after the assassination (R130).
By seeming to disprove Oswald's excuse for the weekday trip to Irving, the Report establishes a basis for more sinister explanations; they hinge on the assumption that the rifle was stored in the Paine garage. Asserting that Oswald had the opportunity to enter the garage Thursday night without being detected, the Report emphasizes that, by the afternoon of November 22 the rifle was missing from "its accustomed place." The implication is that Oswald removed it (R130-31).
To top off this progression of hypotheses is the fact that Oswald carried a "long and bulky package" to work on the morning of the assassination. As he walked to Frazier's house for a ride to the Depository, Frazier's sister, Linnie May Randle, saw him carrying a package that she estimated to be about 28 inches long and 8 inches wide. Frazier was the next to see the brown paper container, as he got into the car and again as he and Oswald walked toward the Depository after parking in a nearby lot. He thought the package was around 2 feet long and 5 or 6 inches wide, recalling that Oswald held it cupped in his right hand with the upper end wedged in his right armpit. The Report expresses its apparent exasperation that both Frazier's and Mrs. Randle's estimates and descriptions were of a package shorter than the longest component of the Carcano which, when disassembled, is 34.8 inches in length. It asserts that "Mrs. Randle saw the bag fleetingly" and quotes Frazier as saying that he paid it little attention, and concludes that the two "are mistaken as to the length of the bag" (R131- 34). Had they not been "mistaken" in their recollections, Oswald's package could not have contained the rifle.
"A handmade bag of wrapping paper and tape was found in the southeast corner of the sixth floor along-side the window from which the shots were fired (R134)," says the Report, citing scientific evidence that this bag was (a) made from materials obtained in the Depository's shipping room, and (b) handled by Oswald so that he left a palmprint and fingerprint on it. After connecting this sack with the "assassin's" window and Oswald, the Report attempts a further connection with the rifle by asserting that some fibers found inside the bag matched some of those which composed the blanket in which the rifle was allegedly stored, suggesting that perhaps the rifle "picked up the fibers from the blanket and transferred them to the paper bag." This feeble evidence is all the Commission could produce to suggest a connection between the rifle and the bag. A Commission staff lawyer, Wesley Liebeler, called it "very thin."[1] Likewise, the Commission asserts that Oswald {constructed} this bag, while it presents evidence only that he {handled} it (R134-37).
One may indeed express concern that, on the basis of the above-cited evidence, the Commission asserts, "The preponderance of the evidence supports the conclusions that" Oswald: "(1) told the curtain rod story to Frazier to explain both the return to Irving on a Thursday and the obvious bulk of the package he intended to bring to work the next day," even though no explanation other than the transporting of the rifle was considered by the Commission (e.g., that perhaps Oswald told the "curtain rod story" to Frazier to cover a personal reason such as making up with his wife, with whom he had quarreled earlier that week, bringing a large package the following morning to substantiate the false excuse); "(2) took paper and tape from the wrapping bench of the Depository and fashioned a bag large enough to carry the disassembled rifle," although no evidence is offered that Oswald ever constructed the bag; "(3) removed the rifle from the Paine's garage on Thursday evening," citing no evidence that it might not have been someone other than Oswald who removed the rifle, if it was ever there at all; "(4) carried the rifle into the Depository Building, concealed in the bag," even though, to make this assertion, it had to reject the stories of the only witnesses who saw the package, and could produce no direct evidence that the rifle had been in the bag; and "(5) left the bag alongside the window from which the shots were fired," offering no substantiation that it was Oswald who left the bag in this position (R137). The Commission's conclusion from this evidence is that "Oswald carried [his] rifle into the Depository building on the morning of November 22, 1963" (R19), although the prefabrication of the bag demands premeditation of the murder, and the presence of the bag by the "assassin's" window implies, according to the Report, that Oswald brought the rifle to this window.
Because its logic was faulty, the Commission's interpretation of "the preponderance of the evidence" loses substantial foundation. Not one of the five above-quoted subconclusions relating to the rifle in the building is confirmed by evidence; a conclusive determination is precluded by insufficient evidence. The most the Commission could fairly have asserted from the facts presented is that, although there was no conclusive evidence that Oswald brought his rifle to the Depository, there was likewise no conclusive disproof, that is, the state of the evidence could not dictate a reliable conclusion.
As the Commission edged toward its ultimate conclusion that Oswald was the lone assassin, it reached a comfortable position in having concluded that Oswald brought his rifle to the Depository. It next had to consider the question of Oswald's presence at the right window at the right time. Assured that Oswald "worked principally on the first and sixth floors of the building," we learn that "the Commission evaluated the physical evidence found near the window after the assassination and the testimony of eyewitnesses in deciding whether Lee Harvey Oswald was present at this window at the time of the assassination" (R137).
The Report presents only one form of "physical evidence"--fingerprints-- asserting that a total of four of Oswald's prints were left on two boxes near the window and on the paper sack found in that area. In evaluating the significance of this evidence,
the Commission considered the possibility that Oswald handled these cartons as part of his normal duties. . . . Although a person could handle a carton and not leave identifiable prints, none of these employees [who might have handled the cartons] except Oswald left identifiable prints on the cartons. This finding, in addition to the freshness of one of the prints . . . led the Commission to attach some probative value to the fingerprint and palmprint identifications in reaching the conclusion that Oswald was present at the window from which the shots were fired, although the prints do not establish the exact time he was there. (R141)
The Report's reasoning is that the presence of Oswald's prints on objects present at the sixth-floor window is probative evidence of his presence at this window at some time. Liebeler felt that this evidence "seems to have very little significance indeed," and pointed out that the absence of other employees' fingerprints "does not help to convince me that [Oswald] moved [the boxes] in connection with the assassination. It shows the opposite just as well."[2] Both Liebeler and the Report avoid the logical, and the only precise, meaning of these fingerprint data: the presence of Oswald's prints on the cartons and the bag means {only} that he handled them; it does not disclose {when} or {where}. Oswald {could} have touched these objects on the first floor of the Depository prior to the time when they were moved to their location by the "assassin's" window, perhaps by another person. Thus, this evidence does not connect Oswald with the source of the shots and is meaningless, because Oswald normally handled such cartons in the building as part of his work.
"Additional testimony linking Oswald with the point from which the shots were fired was provided by the testimony of Charles Givens," the Report continues, "who was the last known employee to see Oswald inside the building prior to the assassination." According to the Report, Givens saw Oswald walking {away} from the southeast corner of the sixth floor at 11:55, 35 minutes before the shooting (R143). That Oswald was seen where he normally worked such a substantial amount of the time prior to the shots connects him with nothing except his expected routine. That "none of the Depository employees is known to have seen Oswald again until after the shooting," if true, is likewise of little significance, especially since most of the employees had left the building to view the motorcade.
In its next section relevant to the discussion of "Oswald at Window," the Report--best expressed in colloquial terms--"pulls a fast one." This section is entitled "Eyewitness Identification of Assassin," but contains {no} identification accepted by the Commission (R143-49). The first eyewitness mentioned is Howard Brennan who, 120 feet from the window, said he saw a man fire at the President. "During the evening of November 22, Brennan identified Oswald as the person in the [police] lineup who bore the closest resemblance to the man in the window but said he was unable to make a positive identification." Prior to this lineup, Brennan had seen Oswald's picture on television. In the months before his Warren Commission testimony, Brennan underwent some serious changes of heart. A month after the assassination he was suddenly positive that the man he saw was Oswald. Three weeks later, he was again unable to make a positive identification. In two months, when he appeared before the Commission, he was again ready to swear that the man was Oswald, claiming to have been capable of such an identification all along. Brennan's vacillation on the crucial matter of identifying Oswald renders all of his varying statements unworthy of credence. The Report recognized the worthlessness of Brennan's after-the-fact identification, although it managed to use his testimony for the most it could yield:
Although the record indicates that Brennan was an accurate observer, he declined to make a positive identification of Oswald when he first saw him in the police lineup. {The Commission therefore, does not base its conclusion concerning the identity of the assassin on Brennan's subsequent certain identification of Lee Harvey Oswald as the man he saw fire the rifle}. . . . The Commission is satisfied that . . . Brennan saw a man in the window who closely resembled . . . Oswald. (R145-46; emphasis added)
If the Commission did not base its conclusion as to Oswald's presence at the window on Brennan's identification, upon whose "eyewitness identification of assassin" did it rely? Under this section it presents three additional witnesses who saw a man in the window, all of whom gave sketchy descriptions, and {none} of whom were able to identify the man. Thus, the Report, having rejected Brennan's story, could offer {no} eyewitness capable of identifying the assassin.
In pulling its "fast one," the Commission sticks to its justified rejection of Brennan's identification for only 11 pages for, when the conclusion to the "Oswald at Window" section is drawn, his incredible identification is suddenly accepted. Here the Commission concludes "that Oswald, at the time of the assassination, was present at the window from which the shots were fired" on the basis of findings stipulated above. One of these "findings" involves "an eyewitness to the shooting" who "identified Oswald in a lineup as the man most nearly resembling the man he saw and later identified Oswald as the man he observed" (R156). Through this double standard the Report manifests itself to be no more credible than Brennan.
"In considering whether Oswald was at the southeast corner window at the time the shots were fired, the Commission . . . reviewed the testimony of witnesses who saw Oswald in the building within minutes after the assassination" (R149). Immediately after the shots, Patrolman M. L. Baker, riding a motorcycle in the procession, drove to a point near the front entrance of the Depository, entered the building, and sought assistance in reaching the roof, for he "had it in mind that the shots came from the top of this building." He met manager Roy Truly, and the two ran up the steps toward the roof. Baker stopped on the second floor and saw Oswald entering the lunchroom there. This encounter in the lunchroom presented a problem to the Commission:
In an effort to determine whether Oswald could have descended to the lunchroom from the sixth floor by the time Baker and Truly arrived Commission counsel asked Baker and Truly to repeat their movements from the time of the shot until Baker came upon Oswald in the lunchroom. . . . On the first test, the elapsed time between the simulated first shot and Baker's arrival on the second-floor stair landing was one minute and 30 seconds. The second test run required one minute and 15 seconds.
A test was also conducted to determine the time required to walk from the southeast corner of the sixth floor to the second-floor lunchroom by stairway [Oswald could not have used the elevator.]. . . . The first test, run at normal walking pace, required one minute, 18 seconds; the second test, at a "fast walk" took one minute, 14 seconds. (R152)
Thus, as presented in the Report, these tests could prove that Oswald was {not} at the sixth-floor window, for had his time of descent been one minute, 18 seconds and Baker's time of ascent been one minute, {14} seconds, Oswald would have arrived at the lunchroom {after} Baker, which was not the case on November 22. Recognizing this, the Report assures us that the reconstruction of Baker's movements was invalid in that it failed to simulate actions that would have lengthened Baker's time. Thus, it is able to conclude "that Oswald could have fired the shots and still have been present in the second floor lunchroom when seen by Baker and Truly" (R152-53).
Here the Commission is playing games. It tells us that its reconstructions could support or destroy the assumption of Oswald's presence at the window. This point is crucial in determining the identity of the assassin, for it could potentially have provided Oswald with an alibi. Instead of conducting the tests properly, the Commission tells us that it neglected to simulate some of Baker's actions, and on the premise that its test was invalid, draws a conclusion incriminating Oswald. One of the factors mentioned by the Report as influencing the conclusion that Oswald was at the window is that his actions after the assassination "are consistent with" his having been there. Because the premise of an invalid reconstruction makes debatable any inferences drawn from it, and because Oswald's actions after the shooting were consistent with his having been almost {anywhere} in the building, this aspect of the Report's conclusion is a {non sequitur}.
The Report ultimately attempts to combine its four logically deficient arguments in support of the conclusion that Oswald was present during the assassination at the window from which the shots were fired. The facts presented are not sufficient to support such a conclusion. The fingerprint evidence does not place Oswald at that window, for the objects on which he left prints were mobile and therefore may have been in a location other than the window when he handled them. That someone saw Oswald near this area 35 minutes before the shots does not mean he was there during the shots, nor does the alleged fact that no one else saw Oswald eliminate the possibility of his having been elsewhere. The one witness who claimed to have seen Oswald in the window could do so only at intervals, rendering his story incredible. Oswald's actions after the assassination do not place him at any specific location during the shots and might even preclude his having been at the window.
The only fair conclusion from the facts presented is that there is no evidence that Oswald was at the window at the time of the assassination.
At this point in the development of the Commission's case, Oswald "officially" possessed the murder weapon, brought it to the Depository on the day of the assassination, and was present at the "assassin's" window during the shots. There would seem to be only one additional consideration relevant to the proof of his guilt: his capability with a rifle. This issue is addressed only after several unrelated matters are considered.
The Commission's conclusion that Oswald was the assassin is not based on a constant set of considerations. The chapter "The Assassin" draws its conclusion from eight factors (R195). The chapter "Summary and Conclusions" omits two of these factors and adds another. The eight- part conclusion states that:
On the basis of the evidence reviewed in this chapter the Commission has found that Lee Harvey Oswald (1) owned and possessed the rifle used to kill President Kennedy and wound Governor Connally, (2) brought this rifle to the Depository Building on the morning of the assassination, (3) was present, at the time of the assassination, at the window from which the shots were fired, (4) killed Dallas Police Officer J. D. Tippit in an apparent attempt to escape, (5) resisted arrest by drawing a fully loaded pistol and attempting to shoot another police officer, (6) lied to the police after his arrest concerning important substantive matters, (7) attempted, in April 1963, to kill Major General Edwin A. Walker, and (8) possessed the capability with a rifle which would have enabled him to commit the assassination. On the basis of these findings the Commission has concluded that Lee Harvey Oswald was the assassin of President Kennedy. (R195)
Obviously, considerations 4, 5, 6, and 7 do not relate to the question of whether Oswald did or did not pull the trigger of the gun that killed the President and wounded the Governor. In the alternate version of the Commission's conclusions, 4 and 5 are omitted from the factors upon which the guilty "verdict" is based. Added in this section is the consideration that the Mannlicher- Carcano and the paper sack were found on the sixth floor subsequent to the shooting (R19-20).
"In deciding whether Lee Harvey Oswald fired the shots . . .," says the Report, "the Commission considered whether Oswald, using his own rifle, possessed the capability to hit his target with two out of three shots under the conditions described in Chapter III [concerning the source of the shots]" (R189). The Commission's previous conclusions leave little room for an assertion other than one indicating that Oswald had the capability to fire the assassination shots. If he could not have done this from lack of sufficient skill, the other factors seeming to relate him to the assassination will have to be accounted for by some other explanation.
First considered under this section is the nature of the shots (R189- 91). Several experts are quoted as saying that the shots, fired at ranges of 177 to 266 feet and employing a four-power scope, were "not . . . particularly difficult" and "very easy." However, in no case did the experts take into account the time element involved in the assassination shots. Without this consideration, Wesley Liebeler could not understand the basis for any conclusion on the nature of the shots. He wrote:
The section on the nature of the shots deals basically with the range and the effect of a telescopic sight. Several experts conclude that the shots were easy. There is, however, no consideration given here to the time allowed for the shots. I do not see how someone can conclude that a shot is easy or hard unless he knows something about how long the firer has to shoot, i.e., how much time is allotted for the shots.[3]
Liebeler's criticism had no effect on the final report, which ignores the time question in evaluating the nature of the shots. The evaluation of the shots as "easy" should therefore be considered void and all inferences based on it at best questionable.
In considering "Oswald's Marine Training," the Report deceives its readers by use of common and frequent {non sequiturs}. First it includes, as relevant to Oswald's {rifle} capability, his training in the use of weapons other than rifles, such as pistols and shotguns. Of this Liebeler said bluntly, "That is completely irrevelant to the question of his ability to fire a rifle. . . . It is, furthermore, prejudicial to some extent."[4] The Report then reveals with total dispassion Oswald's official Marine Corps evaluation based on firing tests: when first tested in the Marines, Oswald was "a fairly good shot"; on the basis of his last recorded test he was a {"rather poor shot."} A Marine marksmanship expert who had absolutely no association with Oswald is next quoted as offering various excuses for the "poor shot" rating, including bad weather and lack of motivation. No substantiation in any form is put forth to buttress these "excuses." As the record presented in the Report stands, Oswald left the Marines a "fairly poor shot." However, the unqualified use of the expert's unsubstantiated hypothesizing gives the impression that Oswald was not such a "poor shot." On the basis of this questionable premise, the Report quotes more experts who, in meaningless comparisons, contradicted the official evaluation of Oswald's performance with a rifle and called him "a good to excellent shot" (R191-92). One may indeed question the state of our national "defense" when "rather poor shots" from the Marines are considered "excellent" marksmen.
In discussing "Oswald's Rifle Practice Outside the Marines" (R192-93), the Report cites a total of 11 instances in which Oswald could be physically associated with a firearm. Most of these instances involved hunting trips, six of which took place in the Soviet Union. However, as Liebeler pointed out in his critical memorandum, Oswald used a shotgun when hunting in Russia. Liebeler's concern can be sensed in his question "Under what theory do we include activities concerning a {shotgun} under a heading relating to {rifle} practice, and then presume not to advise the reader of that?"[5] The latest time the Report places a weapon in Oswald's hands is May 1963, when his wife, Marina, said he practiced operating the bolt and looking through the scope {on a screened porch at night}. Liebeler thought "the support for that proposition is thin indeed," adding that "Marina Oswald first testified that she did not know what he was doing out there and then she was clearly led into the only answer that gives any support to this proposition."[6] The Report evoked its own support, noting that the cartridge cases found in the Depository "had been previously loaded and ejected from the assassination rifle, which would indicate that Oswald practiced opening the bolt." Marks on these cases could not show that {Oswald,} to the exclusion of all other people, loaded and ejected the cases.
In the end, the Commission was able to cite only two instances in which Oswald handled the Carcano, both based on Marina's tenuous assertions. It produced {no} evidence that Oswald ever fired his rifle. Despite this and the other major gaps in its arguments, the Report concludes that "Oswald's Marine training in marksmanship, his other rifle experience and his established familiarity with this particular weapon show that he possessed ample capability to commit the assassination" (R195). Because the Report offers no evidence to support it, this conclusion is necessarily dishonest. Liebeler cautioned the Commission on this point but was apparently ignored. He wrote:
The statements concerning Oswald's practice with the assassination weapon are misleading. They tend to give the impression that he did more practicing than the record suggests he did. My recollection is that there is only one specific time when he might have practiced. We should be more precise in this area, because the Commission is going to have its work in this area examined very closely.[7]
That a shooter can be only as good as the weapon he fires is a much- repeated expression. In fact, the proficiency of the shooter and the quality of his shooting apparatus combine to affect the outcome of the shot. To test the accuracy of the assassination rifle, the Commission did not put the weapon in the hands of one whose marksmanship was as "poor" as Oswald's and whose known practice prior to firing was virtually nil. Its test firers were all experts--men whose daily routines involved working with and shooting firearms. Liebeler, as a member of the Commission's investigatory staff, was one of the severest critics of the rifle tests. The following paragraphs, again from Liebeler's memorandum, provide a good analysis of those tests as represented in the Report:
As I read through the section on rifle capability it appears that 15 different sets of three shots were fired by supposedly expert riflemen of the FBI and other places. According to my calculations those 15 sets of shots took a total of 93.8 seconds to be fired. The average of all 15 is a little over 6.2 seconds. Assuming that time calculated is commencing with the firing of the first shot, that means the average time it took to fire two remaining shots was about 6.2 seconds. That comes to about 3.1 seconds for each shot, not counting the time consumed by the actual firing, which would not be very much. I recall that Chapter Three said that the minimum time that had to elapse between shots was 2.25 seconds, which is pretty close to the one set of fast shots fired by Frazier of the FBI.
The conclusion indicates that Oswald had the capability to fire 3 shots with two hits in from 4.8 to 5.6 seconds. Of the fifteen sets of three shots described above, only {three} were fired within 4.8 seconds. A total of five sets, including the three just mentioned, were fired within a total of 5.6 seconds. The conclusion at its most extreme states Oswald could fire faster than the Commission experts fired in 12 of their 15 tries and that in any event he could fire faster than the experts did in 10 out of their 15 tries. . . .
The problems raised by the above analysis should be met at some point in the text of the Report. The figure of 2.25 as a minimum firing time for each shot is used throughout Chapter 3. The present discussion of rifle capability shows that expert riflemen could not fire the assassination weapon that fast. Only one of the experts managed to do so, and his shots, like those of the other FBI experts, were high and to the right of the target. The fact is that most of the experts were much more proficient with a rifle than Oswald could ever be expected to be, and the record indicates that fact.[8]
Despite the obvious meaning of Liebeler's analysis, the rifle tests are used in the Report to buttress the notion that it was within Oswald's capability to fire the assassination shots (R195). The kindest thing that can be said of this one-sided presentation of the evidence was written by Liebeler himself: "To put it bluntly, that sort of selection from the record could seriously affect the integrity and credibility of the entire Report. . . . These conclusions will never be accepted by critical persons anyway."[9]
The only possible conclusion warranted by the evidence set forth in the Report is that Oswald left the Marines a "rather poor shot" and, unless a major aspect of his life within a few months prior to the assassination has been so well concealed as not to emerge through the efforts of several investigative teams, he did not engage in any activities sufficient to improve his proficiency with his weapon to the extent of enabling him to murder the President and wound the Governor unaided.
This is the official case, the development of the "proof" that Oswald, alone and unaided, committed the assassination. To avoid the detailed discussion required for a rebuttal, I have assumed that the source of the shots was as the Commission postulated--the sixth-floor window of the Depository, from "Oswald's rifle."
This was as far as the Commission could go in relation to the question of Oswald's guilt. Obviously, the use of his rifle in the crime does not mean he fired it. The Commission offers, in essence, {no} evidence that Oswald brought his rifle to the Depository, {no} evidence that Oswald was present at the window during the shots, and {no} evidence that Oswald had the capability to have fired the shots. This is not to say that such evidence does not exist, but that none is presented in the Report. That, for the scope of this chapter's analysis, is significant.
The Commission's conclusion that Oswald was the assassin is invalid because it is, from beginning to end, a {non sequitur}. This analysis of the derivation of that conclusion, based solely on the evidence presented in the Report, demonstrates that evidence to be without logical relationship, used by the Commission in total disregard of logic. The Report's continued fabrication of false premises from which are drawn invalid inferences is consistent with one salient factor: that the Commission evaluated the evidence relating to the assassin's identity on the presumption that Oswald alone was guilty.
[1] "Memorandum re Galley Proofs of Chapter IV of the Report," written on September 6, 1964, by Wesley J. Liebeler, p. 5. (Hereinafter referred to as Liebeler 9/6/64 Memorandum. This document is available from the National Archives.)
[2] Ibid., p. 7.
[3] Ibid., p. 20.
[4] Ibid., p. 21 .
[5] Ibid.
[6] Ibid., p. 22.
[7] Ibid., p. 21.
[8] Ibid., p. 23.
[9] Ibid., p. 25.