Presumed Guilty: How and Why the Warren Commission Framed Lee Harvey Oswald

Chapter 7

Oswald at Window?


Hard as the Commission tried to make tenable that Oswald carried his rifle to work on November 22, it tried even harder to place him at the southeast corner window of the Depository's sixth floor, the putative source of the shots. This was the location at which a man with a gun had been seen, and to which Oswald had unlimited access. In accordance with the official story, Oswald's guilt hinges on this one point, he had to have been at the window to have fired some or all of the shots.

The first evidence discussed in this section of the Report concerns the fingerprints left by Oswald on two cartons located next to the "assassin's" window. As was noted in chapter 2, the Commission used this evidence to place Oswald at the window at some time. In doing this, it read an unfair and improper meaning into limited data. The presence of Oswald's prints on these objects indicates {only} that he handled them and does not disclose exactly when or {where} he did so. I noted that Oswald could have touched the cartons {prior} to the time they were moved to the southeast corner window. The fingerprints were the only "physical evidence" the Commission could offer to relate Oswald to that specific window (R140-41). Since the fingerprint evidence in fact does {not} relate Oswald to the window, it is important to note that {no} physical evidence placed Oswald at the window at any time.

Oswald's Actions Prior to the Shooting

On the morning of the assassination, a number of Depository employees had been putting down flooring on the sixth floor. About 15 minutes before noon, these employees decided to break for lunch. Going to the northeast corner of the building, they began to "race" the elevators down to the first floor. On their way down, they noticed Oswald standing at the elevator gate on the fifth floor (6H349), where he was shouting for an elevator to descend (3H168; 6H337).

One of the floor-laying crew, Charles Givens, told the Commission that upon returning to the sixth floor at 11:55, to get his cigarettes, he saw Oswald on that floor (6H349). The Report attaches great significance to Givens's story by calling it "additional testimony linking Oswald with the point from which the shots were fired" (R143). No testimony was needed to link Oswald with the sixth floor; he worked there. However, the Report adds that Givens "was the last known employee to see Oswald inside the building prior to the assassination," unfairly precipitating a bias against Oswald by implying that he remained where Givens saw him for the 35 minutes until the assassination.

It is necessary to note, although admittedly it is not central to Oswald's possible involvement in the shooting, that there are many aspects of Givens's story that cast an unfavorable light on its veracity.[1] It seems illogical that Oswald would have gone {up} to the sixth floor after yelling for an elevator {down} from the fifth; even at that, such "jumping" between floors is consistent with the type of work Oswald did: order filling. In addition, police Lieutenant Jack Revill and Inspector Herbert Sawyer both testified that Givens was taken to city hall on the afternoon of the shooting to make a statement about seeing Oswald on the sixth floor (5H35-36; 6H321-22). However, the police radio log indicates that Givens was picked up because he had a police record (narcotics charges) and was missing from the Depository (23H873). Givens himself told the Commission he was picked up and asked to make a statement, but not in reference to having seen Oswald (6H355). Indeed, the affidavit he filed on November 22, 1963, makes no mention of either his return to the sixth floor or his having seen Oswald there (24H210).

The previous information forms a basis for doubting Givens's story. There is one other consideration that strongly suggests this entire episode to be a fabrication: it was physically impossible for Givens to have seen Oswald as he swore he had done. From Givens's testimony, it is clear that his position on the sixth floor when he claimed to have seen Oswald was somewhere between the elevators at the northwest corner of the building to about midway between the north and south walls. Either way, he would have been along the far west side of the sixth floor (6H349-50). However, Givens said he observed Oswald walking along the {east} wall of the building, walking {away} from the southeast corner in the direction of the elevators (6H349-50). Dallas Police photographs of the sixth floor (CEs 725, 726, 727, 728) show that such a view would have been obscured by columns and stacks of cartons as high as a man. If Givens saw Oswald, then there {must} be a major flaw in his description of the event. As the record stands, Givens {could not} have seen Oswald on the sixth floor at 11:55.

We should recall that when Oswald was seen on the fifth floor at about 11:45, he was shouting for an elevator to take him {down}. Apparently this is exactly the course Oswald pursued, if not by elevator, then by the stairs. Bill Shelley was part of the floor-laying crew that left the sixth floor around 11:45. He testified unambiguously that after coming down for lunch he saw Oswald on the first floor near the telephones (7H390). Mention of this fact is entirely absent from the Report.

The Commission seized upon Givens's story because, according to the Report, he was the last person known to have seen Oswald prior to the shots. The Report strongly implies that Oswald must have remained on the sixth floor, since no one subsequently saw him elsewhere. But Oswald was both inconspicuous and generally unknown at the Depository; he always kept to himself. Likewise, most of the other employees had left the building during this time. It would have been unremarkable if no one noticed his presence, especially then. However, if someone {had} noticed Oswald in a location other than the sixth floor after 11:55, his story would have been all the more important by virtue of Oswald's inconspicuousness.

The Report makes two separate assurances that no one saw Oswald after 11:55 and before the shots, first stating "None of the Depository employees is known to have seen Oswald again until after the shooting" (R143), and later concluding, "Oswald was seen in the vicinity of the southeast corner of the sixth floor approximately 35 minutes before the assassination and no one could be found who saw Oswald anywhere else in the building until after the shooting" (R156). A footnote to the first statement lists "CE 1381" as the source of information that no employee saw Oswald between 11:55 and 12:30 that day.

CE 1381 consists of 73 statements obtained by the FBI from all employees present at the Depository on November 22, 1963. In almost every instance, the particular employee is quoted as saying he did not see Oswald at the time of the shots. A few people stated they either had never seen Oswald at all or had not seen him that day (see 22H632-86). This collection of statements does not support the Report's assertion that no employee saw Oswald between 11:55 and 12:30, for it almost never addresses that time period, usually referring only to 12:30, the time of the shots.

I have learned that General Counsel Rankin, in requesting these statements from the FBI, deliberately sought information relating to Oswald's whereabouts at 12:30 {only}, never considering the 11:55 to 12:30 period. The Report then falsely and wrongly applied this information to the question of Oswald's whereabouts between 11:55 and 12:30.

I obtained from the National Archives a letter from J. Lee Rankin to Hoover dated March 16, 1964, in which Rankin requested that the FBI "obtain a signed statement from each person known to have been in the Texas School Book Depository Building on the assassination date reflecting the following information:" Rankin then listed six items to be included in each statement: "1. His name . . . [etc.], 2. Where he was at the time the President was shot, 3. Was he alone or with someone else. . . ?, 4. If he saw Lee Harvey Oswald {at that time?,"} plus two other pieces of information.[2] Clearly, Rankin desired to know whether any employee had seen Oswald {at the time of the shots}. There is no reason to expect that the agents who obtained the statements would have sought any further detail, and the final reports reveal that indeed none was sought. Even Hoover, in the letter by which he transmitted CE 1381 to the Commission, reported, "Every effort was made to comply with your request that six {specific} items be incorporated in each statement" (22H632).

Why did Rankin, when he had the FBI go to such extensive efforts in contacting all 73 employees present that day, fail to request the added information about the time between 11:55 and 12:30, the period that could hold the key to Oswald's innocence had he been observed then in a location other than the sixth floor?

The Commission knew of at least two employees who {had} seen Oswald on the first floor between 12:00 and 12:30. It suppressed this information from the Report, lied in saying that no one had seen Oswald during this time, and cited an incomplete and irrelevant inquiry in support of this drastic misstatement.

Depository employee Eddie Piper was questioned twice by Assistant Counsel Joseph Ball. During one of his appearances, Piper echoed the information he had recorded in an affidavit for the Dallas Police on November 23, 1963, namely, that he saw and spoke with Oswald on the first floor at 12:00 noon (6H383; l9H499). Piper seemed certain of this, and he was consistent in reporting the circumstances around his brief encounter with Oswald. Clearly, this is a direct contradiction of the Report's statement that no one saw Oswald between 11:55 and 12:30. The Report, never mentioning this vital piece of testimony, calls Piper a "confused witness" (R153). This too was the opposite of the truth. Piper was able to describe events after the shooting in a way that closely paralleled the known sequence of events (6H385). There was, in fact, no aspect of Piper's testimony that indicated he was less than a credible witness.

While Piper's having seen Oswald on the first floor at 12:00 does not preclude Oswald's having been at the window at 12:30, it is significant that this information was suppressed from the Report, which makes an assertion contrary to the evidence. One aspect of Piper's story could have weighed heavily in Oswald's defense. In his November 23 affidavit, Piper recalled Oswald as having said "I'm going up to eat" during the short time the two men met (19H499). In his testimony, Piper modified this quotation, expressing his uncertainty whether Oswald had said "up" or "out" to eat (6H386). Despite the confusion over the exact adverb Oswald used, the significant observation is that he apparently intended to eat at 12:00. He would most likely have done this on the first floor in the "domino" room or in the second-floor lunchroom. {Oswald consistently told the police that he had been eating his lunch at the time the President was shot} (R600, 613). The suppression of Piper's story was, in effect, the suppression of an aspect of Oswald's defense.

The Commission had other corroborative evidence of a probative nature. Oswald's account of his whereabouts and actions at and around the time of the shooting cannot be fully known, for no transcripts of his police interrogations were kept--a significant departure from the most basic criminal proceedings (see 4H232; R200). Our only information concerning Oswald's interrogation sessions during the weekend of the assassination is found in contradictory and ambiguous reports written by the various participants in the interrogations--police, FBI, and Secret Service (R598-636).

The interrogation reports are generally consistent in relating that Oswald said that he had been eating his lunch at the time of the shots. In three of these reports a significant detail is added, in three partially contradictory versions. Captain Fritz thought Oswald "said he ate lunch with some of the colored boys who worked with him. One of them was called `Junior' and the other was a little short man whose name he didn't know" (R605). FBI Agent James Bookhout wrote that "Oswald had eaten lunch in the lunchroom . . . alone, but recalled possibly two Negro employees walking through the room during this period. He stated possibly one of these employees was called `Junior' and the other was a short individual whose name he could not recall but whom he would be able to recognize" (R622). Secret Service Inspector Thomas Kelley recalled that Oswald "Said he ate lunch with the colored boys who worked with him. He described one of them as `Junior,' a colored boy, and the other was a little short negro [{sic}] boy" (R626).

These versions are consistent in reporting that Oswald had been eating lunch (probably on the first floor) when he saw or was with two Negro employees, one called "Junior," the other a short man. It is possible that Oswald was in a lunchroom (the domino room) during this time, although we cannot be certain that Oswald directly stated so to the police. Likewise, it is possible that Agent Bookhout correctly reported that Oswald ate alone and merely observed the two Negro employees, while Fritz and Kelley misconstrued Oswald's remarks as indicating that he ate his lunch {with} these two men.

James Jarman was a Negro employed at the Depository; his nickname was "Junior" (3H189; 6H365). On November 22, Jarman quit for lunch at about 11:55, washed up, picked up his sandwich, bought a coke, and went to the first floor to eat. He ate some of his lunch along the front windows on the first floor, near two rows of bins; walking alone across the floor toward the domino room, he finished his sandwich. After depositing his refuse, Jarman left the building with employees Harold Norman and Danny Arce through the main entrance (3H201-2).

Harold Norman, another Negro employee, was of rather modest height, fitting the description of the man Oswald thought had been with Jarman on the first floor (see CE 491). On November 22, Norman ate his lunch in the domino room and "got with James Jarman, he and I got together on the first floor." According to Norman, Jarman was "somewhere in the vicinity of the telephone" near the bins when the two men "got together." This would define a location toward the front of the building. Norman confirmed Jarman's testimony that the two subsequently left the building through the main entrance (3H189).

There is no firm evidence pinpointing the exact time Jarman and Norman left the Depository. Their estimates, as well as those of the people who left at the same time or who were already standing outside, are not at all precise, apparently because few workers had been paying much attention to the time. The estimates varied from 12:00 as the earliest time to 12:15 as the latest (see 3H189, 219; 6H365; 22H638, 662; 24H199, 213, 227). Twelve o'clock seems a bit early for Jarman and Norman to have finished eating and to be out on the street; the time was probably closer to 12:15. It was most likely within five minutes prior to 12:15 that Jarman and Norman "got together" near the front or south side of the first floor and walked out the main entrance together.

Jarman and Norman appeared together on the first floor again, about ten minutes after stepping outside. Because the crowds in front of the Depository were so large, the two men went up to the fifth floor at 12:20 or 12:25. To do this, they walked around to the back of the building, entering on the first floor through the rear door and taking the elevator up five stories (3H202).

Obviously, Oswald could not have told the police that "Junior" and a short Negro employee were together on the first floor unless he had seen this himself.[3] For Oswald to have witnessed Jarman and Norman in this manner, he had to have been on the first floor between either 12:10 and 12:15 or 12:20 and 12:25. The fact that Oswald was able to relate this incident is cogent evidence that he was in fact on the first floor at one or both of these times. If he was on the {sixth} floor, as the Commission believes, then it was indeed a remarkable coincidence that out of all the employees, Oswald picked the two who were on the first floor at the time he said, and together as he described. Since this is a remote possibility that warrants little serious consideration, I am persuaded to conclude that Oswald was on the first floor at some time between 12:10 and 12:25, which is consistent with the previously cited testimony of Eddie Piper.[4]

Buttressing the above-discussed evidence is the story of another employee, who claimed to have seen Oswald on the first floor around 12:15. Mrs. Carolyn Arnold, a secretary at the Depository, was the crucial witness. Her story was omitted not only from the Report but also from the Commission's printed evidence. It was only through the diligent searching of Harold Weisberg that an FBI report of an early interview with her came to light.[5] She spoke with FBI agents on November 26, 1963, only three days after the assassination. The brief report of the interview states that

she was in her office on the second floor of the building on November 22, 1963, and left that office between 12:00 and 12:15 PM, to go downstairs and stand in front of the building to view the Presidential Motorcade. As she was standing in front of the building, she stated that she thought she caught a fleeting glimpse of LEE HARVEY OSWALD standing in the hallway between the front door and the double doors leading into the warehouse, located on the first floor. She could not be sure this was OSWALD, but said she felt it was and believed the time to be a few minutes before 12:15 PM. (CD5:41)

As Weisberg cautioned in his book "Photographic Whitewash," where he presents this FBI report, "This is the FBI retailing [sic] of what Mrs. Arnold said, not her actual words."[6]

Mrs. Arnold was never called as a witness before the Commission; absolutely no effort was made to check her accuracy or obtain further details of her story. If what she related was true, she provided the proof that Oswald could not have shot at the President. The Commission's failure to pursue her vital story was a failure to follow up evidence of Oswald's innocence.

Mrs. Arnold was reinterviewed by the FBI on March 18, 1964, in compliance with Rankin's request to Hoover for statements from all Depository employees present at work November 22 (22H634). In accordance with the deliberate wording of Rankin's items to be included in the statements as discussed earlier, Mrs. Arnold was not asked about seeing Oswald {before} the shooting, as she earlier said she did. Instead, she provided the specific information requested in item (4) of Rankin's letter: "I did not see Lee Harvey Oswald at the time President Kennedy was shot." "At the time" of the assassination obviously is not the same as "before" the assassination. If Rankin for some specific reason avoided asking about any employee who had seen Oswald right before the shots, he could have had no better witness in mind than Mrs. Arnold.

In her March 18 statement, Mrs. Arnold wrote: "I left the Texas School Book Depository at about 12:25 PM." The report of her first interview states that she left her office on the second floor between 12:00 and 12:15 and saw Oswald from outside the building at "a few minutes before 12:15." The important distinction between these two estimates is that one is in Mrs. Arnold's words, the other but a paraphrase. Of the people who left the Depository with Mrs. Arnold, Mrs. Donald Baker recalled having left at about 12:15 (22H635), Miss Judy Johnson at about 12:15 (22H656), Bonnie Rachey also at 12:15 (22H671), and Mrs. Betty Dragoo at 12:20 (22H645).

It is perfectly reasonable to assert that Mrs. Arnold saw a man whom "she felt" was Oswald on the first floor anywhere between a few minutes before 12:15 and, at the latest, 12:25. The actual time probably tended toward the 12:15 to 12:20 period. The significance of this one piece of information is startling; the "gunman" on the sixth floor was there from 12:15 on. If Mrs. Arnold really did see Oswald on the first floor at this time, he could not have been a sixth-floor assassin.

Arnold Rowland is the first person known to have spotted a man with a rifle on the sixth floor of the Depository. The time of this observation was, according to Rowland, who had noted the large "Hertz" clock atop the Depository, 12:15 (2H169-72). Rowland provided an even more accurate means for checking his time estimate:

there was a motorcycle parked just on the street, not in front of us, just a little past us, and the radio was on it giving details of the motorcade, where it was positioned, and right {after} the time I noticed him (the man on the sixth floor) and when my wife was pointing this other thing to me . . . the dispatcher came on and gave the position of the motorcade as being on Cedar Springs. This would be in the area of Turtle Creek, down in that area. . . . And this was the position of the motorcade and it was about 15 or 16 after 12. (2H172-73; emphasis added)

Rowland could not have had access to the police radio logs. However, every version of these logs in the Commission's evidence shows that the location of the motorcade described by Rowland was in fact broadcast between 12:15 and 12:16 PM (17H460; 21H390; 23H911). We must note also that while Rowland first noticed this man {before} hearing the broadcast at 12:15, it is possible that he had been there for some period of time prior to that.

The difference between Mrs. Arnold's earliest estimate of the time she possibly saw Oswald on the first floor and the time Rowland saw the sixth-floor gunman is but a few minutes, hardly enough time for Oswald to have picked up his rifle, made his way to the sixth floor, assembled the rifle, and appeared at the appropriate window. If Mrs. Arnold's later estimates are accurate, then Oswald was, in fact, on the first floor while the "assassin" was on the sixth.

Without elaboration from Mrs. Arnold, we can draw no conclusions based on the brief FBI report of her first interview. At this late date, I feel that Mrs. Arnold can not honestly clarify the information reported by the FBI, either through fear of challenging the official story or through knowledge of the implication of what she knows. It was the duty of the Warren Commission to seek out Mrs. Arnold to obtain her full story and test her accuracy, if not in the interest of truth, certainly so as not posthumously to deny Oswald the possible proof of his innocence.

The Commission failed in its obligation to the truth for the simple reason that it (meaning its staff and General Counsel) never sought the truth. The truth, according to {all} the relevant evidence in the Commission's files, is that Oswald was on the first floor at a time that eliminates the possibility of his having been the sixth-floor gunman, just as he told the police during his interrogations.

Identity of the Gunman

The Commission relied solely on the testimony of eyewitnesses to identify the source of the shots as a specific Depository window. The presence of three cartridge cases by this window seemed to buttress the witnesses' testimony. The medical findings, although not worth credence, indicated that some shots were fired from above and behind; still, that evidence, even if correct, cannot pinpoint the {precise} source "above and behind" from which certain shots originated. It was the people who said they saw a man with a gun in this window who provided the evidence most welcome to the Commission.

The Commission's crew of witnesses consisted of Howard Brennan and Amos Euins, both of whom said they saw the man fire a rifle; Robert Jackson and Malcolm Couch, two photographers riding in the motorcade, who saw the barrel of a rifle being drawn slowly back into the window after the shots (although neither saw a man in the window); Mrs. Earle Cabell, wife of the city's mayor, who, also riding in the procession, saw "a projection" from a Depository window (although she could not tell if this was a mechanical object or someone's arm); and James Crawford, who saw a "movement" in the window after the shots but could not say for sure whether it was a person whom he had seen (R63-68). Two additional witnesses are added in the Report's chapter "The Assassin." They are Ronald Fischer and Robert Edwards, both of whom saw a man without a rifle in the window shortly before the motorcade arrived.

Two other "sixth-floor gunman" witnesses didn't quite make it into the relevant sections of the Report--one, in fact, never made the Report at all. Arnold Rowland saw the gunman 15 minutes before the motorcade arrived at the plaza. However, at this time, the man was in the far south{west} (left) window. Rowland told the Commission that another man then occupied the southeast corner (right) window. The Commission, whose legal eminences knew that another man on the sixth floor at this time satisfied the legal definition of conspiracy, sought only to discredit Rowland, rejecting his story under a section entitled "Accomplices at the Scene of the Assassination" (R250-52). Mrs. Carolyn Walther saw the gunman in the right window, shortly before the procession arrived. However, she too saw a second man on the sixth floor, although the "accomplice" she described was obviously different from Rowland's (24H522). Rowland sprang his information on the Commission by surprise, none of the various reports on him having ever mentioned the second man. Mrs. Walther told of a second man from the beginning and was totally ignored by the Commission.

While the testimony indicates the presence of a man {holding} a rifle in the southeast-corner sixth-floor window, there is {no} evidence that this rifle was {fired} during the assassination. Under questioning by Arlen Specter, Amos Euins, a 16-year-old whose inarticulateness inhibited the effectiveness with which he conveyed his observations, said he saw the Depository gunman fire the second shot (2H209). However, Specter never asked Euins what caused him to conclude that the gun he saw had actually discharged, that is, that the gunman was not merely performing the {motions} of firing that gave the impression of actual discharge when combined with the noises of other shots, but was fully pulling the trigger and shooting bullets.

The Report cites the testimony of three employees who were positioned on the fifth floor directly below the "assassin's" window, one of whom claimed to have heard empty cartridge cases hitting the floor above him, with the accompanying noises of a rifle bolt (R70). However, there is nothing about the testimony of any of these men to indicate that the {shots} came from {directly} above them on the sixth floor. As Mark Lane points out in "Rush to Judgement," the actions of these men subsequent to the shooting were not consistent with their believing that any shots came from the sixth floor; one of the men even denied making such a statement to the Secret Service[7] (3H194). The stories of the fifth-floor witnesses, if valid, indicate no more than the presence of someone on the sixth floor operating the bolt of a rifle and ejecting spent shells.

Howard Brennan was the Commission's star witness among those present in the plaza during the assassination. His testimony is cited in many instances, including passages to establish the source of the shots and the identity of the "assassin." Brennan was the only person other than Euins who claimed to have seen a gun fired from the Depository window (R63). Yet, in spite of Brennan's testimony that he saw the sixth-floor gunman take aim and {fire} a last shot, there is reason to believe that the man Brennan saw never discharged a firearm. Brennan was asked the vital questions that Euins was spared.

Mr. McCloy: Did you see the rifle explode? Did you see the flash of what was either the second or the third shot?

Mr. Brennan: No.

Mr. McCloy: Could you see that he had discharged the rifle?

Mr. Brennan: No . . .

Mr. McCloy: Yes. But you saw him aim?

Mr. Brennan: Yes.

Mr. McCloy: Did you see the rifle discharge, did you see the recoil or the flash?

Mr. Brennan: No.

Mr. McCloy: But you heard the last shot?

Mr. Brennan: The report; yes, sir. (3H154)

If Brennan looked up at the window as he said, his testimony would strongly indicate that he saw a man aim a gun {without firing it}. When the Carcano is fired, it emits a small amount of smoke (26H811) and manifests a recoil (3H451), as do most rifles. That Brennan failed to see such things upon observing the rifle and hearing a shot is cogent evidence that the rifle Brennan saw did not fire the shot.

Thus, the Commission's evidence--taken at face value--indicates only that a {gunman} was present at the sixth-floor window, not an {assassin}. This distinction is an important one. A mere gunman (one armed with a gun) cannot be accused of murder; an assassin is one who has committed murder. A gunman present at the sixth-floor window could have served as a decoy to divert attention from real shooters at other vantage points.[8] While we cannot know surely just what the man in the sixth-floor window was doing, it is vital to note that evidence is entirely lacking that this gunman was, in fact, an assassin.

To the Commission, the gunman was {the} assassin, no questions asked. The limitations of the evidence could not be respected when the conclusions were prefabricated. By arbitrarily calling a gunman the "assassin," the Commission, in effect, made the charge of murder through circumstances, without substantiation.

As was discussed in chapter 1, the Commission had {no} witness identification of the "assassin" worthy of credence. Of the few who observed the gunman, only Brennan made any sort of identification, saying both that Lee Harvey Oswald {was} the gunman and that he merely {resembled} the gunman. The Commission rejected Brennan's "positive identification" of Oswald, expressed its confidence that the man Brennan saw at least looked like Oswald, and evaluated Brennan as an "accurate observer" (R145).

Many critics have challenged the Report's evaluation of Brennan as "accurate."[9] Evidence that I have recently discovered indicates that Brennan was not even an "observer," let alone an accurate one.

One of the main indications of Brennan's inaccuracy is his description of the gunman's position. Brennan contended that in the six-to-eight- minute-period prior to the motorcade's arrival, he saw a man "leave and return to the window `a couple of times.'" After hearing the first shot, he glanced up at this Depository window and saw this man taking deliberate aim with a rifle (R144). The Report immediately begins apologizing for Brennan:

Although Brennan testified that the man in the window was standing when he fired the shots, most probably he was either sitting or kneeling. . . . It is understandable, however, for Brennan to have believed that the man with the rifle was standing. . . . Since the window ledges in the Depository building are lower than in most buildings [one foot high], a person squatting or kneeling exposes more of his body than would normally be the case. From the street, this creates the impression that the person is standing. (R144-45)

The Report's explanation is vitiated by the fact that Brennan claimed to have seen the gunman standing {and sitting}. "At one time he came to the window and he sat sideways on the window sill," swore Brennan. "That was previous to President Kennedy getting there. And I could see practically his whole body, from his hips up" (3H144). Thus, Brennan should have known the difference between a man standing and sitting at the window, despite the low window sill. Had the gunman been standing, he would have been aiming his rifle through a double thickness of glass, only his legs visible to witness Brennan. Had he assumed a sitting position--on the sill or on nearby boxes--he would have had to bend his head down {below} his knees to fire the rifle out the window (see photographs taken from inside the window, at 22H484-85).

From November 22 until the time of his Commission testimony, Brennan said he was looking at the sixth floor at the time of the last shot. His November 22 affidavit states this explicitly (24H203) and it can be inferred from his later interviews. In observing the Depository, Brennan contended that he stopped looking at the President's car immediately after the first shot (3H143-44). Obviously, then, he could not have seen the impact of the fatal bullet on the President's head, which came late, probably last, in the sequence of shots. However, Brennan's observations were suddenly augmented when he was interviewed by CBS News in August 1964 for a coast-to-coast broadcast. As was aired on September 27, 1964, Brennan told CBS "The President's head just exploded."[10] Unless Brennan lied to either CBS or the federal and local authorities, it must now be believed that he saw the sixth-floor gunman fire the last shot, then turned his head faster than the speeding bullet to have seen the impact of that bullet on the President's head, then turned back toward the window with equal alacrity so as to have seen the gunman slowly withdraw his weapon and marvel at his apparent success. Unless, of course, Brennan had eyes in the back of his head-- which is far more credible than any aspect of his "witness account."

Brennan's identification of Oswald as the man he saw (or said he saw?) in the sixth-floor window weighed heavily in the Commission's "evaluation" of the "evidence." As was discussed in chapter 1, the Commission first rejected Brennan's positive identification in discussing the evidence, and subsequently accepted it in drawing the conclusion that Oswald was at the window. Without Brennan, there would have been not even the slightest suggestion in any of the evidence that Oswald was at the window during the shots. No one else even made a pretense of being able to identify the sixth-floor gunman.

On November 22, 1963, Brennan was unable to identify Oswald as the man he saw in the window, but picked Oswald as the person in a police line- up who bore the closest resemblance to the gunman. Months later, when he appeared before the Commission, Brennan said he could have made a positive identification at the November 22 lineup,

but did not do so because he felt that the assassination was "a Communist activity, and I felt like there hadn't been more than one eyewitness, and if it got to be a known fact that I was an eyewitness, my family or I, either one, might not be safe." (R145)

The Report continued that, because Brennan had originally failed to make a positive identification, the Commission did "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." Through the Report, the Commission expressed its confidence that "Brennan saw a man in the window who closely resembled Lee Harvey Oswald, and that Brennan believes the man he saw was in fact . . . Oswald" (R146).

The Commission accepted Brennan's observations and assurances without question. However, the excuse Brennan offered for not originally making a positive identification was falsely and deliberately contrived, as the evidence reveals. As Brennan is quoted, he felt that he had been the only eyewitness and feared for his family's security should his identity become known. Contrary to this sworn statement, Brennan immediately knew of at least one other witness who had seen the sixth-floor gunman. Secret Service Agent Forrest Sorrels spoke with Brennan in Dealey Plaza within twenty minutes after the shooting, at which time he asked Brennan "if he had seen anyone else, and he pointed to a young colored boy there, by the name of Euins" (7H349). Sorrels testified that Brennan also expressed his willingness to identify the gunman. On the afternoon of the assassination, {before} he attended the line-up, Brennan filed an affidavit with the police (3H145; 7H349) in which he again made it known that he could identify the man if he were to see him once more (24H203). This contradicts Brennan's testimony that he could have identified Oswald on November 22 but declined to do so for fear of its becoming known.

Thus, Brennan originally indicated a willingness to identify the gunman, saw Oswald in a line-up and declined to make a positive identification, and subsequently admitted lying to the police by saying that he {could} have made the identification but was afraid to.

However, even Brennan's identification of Oswald as the man who most closely resembled the gunman is invalid, since prior to the line-up, Brennan twice viewed Oswald's picture on television (3H148). Brennan again contradicted himself in speaking of the effect that seeing Oswald's picture had on his later identification of Oswald.

On December 17, 1963, Brennan spoke with an FBI Agent to whom he confided "that he can now say that he is sure that LEE HARVEY OSWALD was the person he saw in the window." At this time, Brennan began offering his many excuses for not having originally made a positive identification. One of these was that prior to appearing at the police line-up on November 22, 1963, he had observed a picture of OSWALD on his television set at home when his daughter asked him to watch it. He said he felt that since he had seen OSWALD on television before picking OSWALD out of the line-up at the police station that it tended to "cloud" any identification of OSWALD at that time. (CD5:15)

On January 7, 1964, Brennan's "clouded identification" was further lessened, for he told another FBI Agent that seeing Oswald's picture on television "of course, did not help him retain the original impression of the man in the window with the rifle" (24H406). Finally, on March 24, Brennan could no longer tell just what seeing Oswald prior to the line-up had done. On this date, Brennan testified before the Commission:

Mr. Belin: What is the fact as to whether or not your having seen Oswald on television would have affected your identification of him one way or the other?

Mr. Brennan: That is something I do not know. (3H148)

As his earlier interviews demonstrate, Brennan "knew" but was not saying. It seems obvious that seeing Oswald's picture on television prior to the line-up not only would have "clouded" and "not helped" the identification, but would also have prejudiced it.

The best that can be said of Howard Brennan is that he provided a dishonest account that warrants not the slightest credence. He contradicted himself on many crucial points to such a degree that it is hard to believe that his untruths were unintentional. He was warmly welcomed by the unquestioning Commission as he constantly changed his story in support of the theory that Oswald was guilty. This man, so fearful of exposure as to "lie" to the police and possibly hinder justice, consented to talk with CBS News for a coast-to-coast broadcast {before} the Warren Report was released,[11] and allowed himself to be photographed for the October 2, 1964, issue of "Life" magazine, where he was called by Commissioner Ford "the most important witness to appear before the Warren Commission."[12] His identification of Oswald, incredible as it was through each of his different versions of it, was worthless, if for no other reason than that he saw Oswald on television prior to the police line-up.

Through twenty pages of repetitious testimony, Howard Brennan rambled on about the man he saw and who he looked like, interjecting apologies, and inaccurately marking various pictures. The Commission could not get enough of Brennan's words, for he spoke the official language: "Oswald did it." Yet, when Brennan offered one meaningful and determinative fact, he was suddenly shown the door. Commission Counsel David Belin had been showing Brennan some of Oswald's clothing when Brennan interjected:

Mr. Brennan: And that was another thing that I called their [the police's] attention to at the lineup.

Mr. Belin: What do you mean by that?

Mr. Brennan: That he [Oswald] was not dressed in the same clothes that I saw the man in the window.

Mr. Belin: You mean with reference to the trousers or the shirt?

Mr. Brennan: Well, not particularly either. In other words, he just didn't have the same clothes on.

Mr. Belin: All right.

Mr. Brennan: I don't know whether you have that in the record or not. I am sure you do.

Mr. Dulles: Any further questions? I guess there are no more questions, Mr. Belin.

Mr. Belin: Well, sir, we want to thank you for your cooperation with the Commission.

Mr. Dulles: Thank you very much for coming here. (3H161)

The Commission had no witness-identification-by-appearance that placed Oswald in the window at the time of the shots. No one, including Brennan, could identify the sixth-floor gunman. However, Brennan's statement that the gunman wore clothes different from those that Oswald wore on that day might indicate the presence of someone other than Oswald in the window.

If there is anything consistent in the testimonies of those who observed a man on the sixth floor, it is the clothing descriptions. Rowland recalled that the man wore "a very light-colored shirt, white or a light blue . . . open at the collar . . . unbuttoned about halfway" with a "regular T-shirt, a polo shirt" underneath (2H171). Brennan described light-colored, possibly khaki clothes (3H145). Ronald Fisher and Bob Edwards described "an open-neck . . . sport shirt or a T-shirt . . . light in color; probably white" (6H194), and a "light colored shirt, short sleeve and open neck" (6H203), respectively. Mrs. Carolyn Walther saw a gunman "wearing a white shirt" (24H522).

In each case, these witnesses have described a shirt completely different from that worn by Oswald on November 22. That day Oswald wore a long-sleeved rust-brown shirt open at the neck with a polo shirt underneath. At least two witnesses described such attire on Oswald {before} he went to his rooming house within a half hour after the shots (see 2H250; 3H257), and a third provided a similar but less-complete description (R159). From the time of his arrest until sometime after midnight that Friday, Oswald was still wearing this shirt, as is shown in many widely printed photographs.[13] Although it seems likely that he wore the same shirt all day long, Oswald told police he changed his shirt during a stop at his rooming house at 1:00 P.M. that afternoon, having originally been wearing a red long-sleeved buttondown (see R605, 613, 622, 626). However, Oswald did not possess a shirt of this description (see CEs 150-64).

The Commission never sought to determine if Oswald had worn the same shirt continually that day or if he had changed prior to his arrest. Apparently it was not going to risk the implications of Brennan's testimony that the clothing worn by Oswald in the line-up (Oswald wore the rust-brown shirt during the line-ups on November 22 [7H127-29, 169- 70]) differed from that of the sixth-floor gunman. Indeed, when shown the shirt in question, CE 150, Brennan said the gunman's shirt was lighter (3H161).

The testimony of Marrion Baker, a police officer who encountered Oswald right after the shots, is somewhat illuminating on this point. When Baker later saw Oswald in the homicide office at police headquarters, "he looked like he did not have the same [clothes] on" (3H263). However, the reason for Baker's confusion (and Baker was not nearly so positive about the disparity as was Brennan) was that the shirt Oswald wore when seen in the Depository was "a little bit {darker}" than the one he had on at the police station (3H257; emphasis added).

The crux of the matter is whether Oswald was wearing his rust-brown shirt all day November 22, or if he changed into it subsequent to the assassination. While there is testimony indicating that he wore the same shirt all along, the nature of the existing evidence does not permit a positive determination. Had Oswald been wearing CE 150 at the time of the shots, it would seem that he was not the sixth-floor gunman, who wore a white or very light shirt, probably short sleeved. While it can be argued that Oswald may have appeared at the window in only his white polo shirt, he was seen within 90 seconds after the shots wearing the brown shirt.[14] As will be discussed in the next chapter, there was not enough time, had Oswald been at the window, for him to have put on his shirt within the 90-second limit.

The Commission had no evidence in any form that Oswald was at the sixth- floor window during the shots; its only reliable evidence placed Oswald on the first floor shortly before this time. The Commission concluded that Oswald was at this window because it wanted, indeed needed, to have him there. To do this, it put false meaning into the meaningless--the fingerprint evidence and Givens's story--and believed the incredible-- Brennan's testimony. Through its General Counsel, it suppressed the exculpatory evidence, and claimed to know of no evidence placing Oswald in a location other than the sixth floor when its {only} evidence did exactly that. The conclusion that Oswald was at the window is simply without foundation. It demands only the presumption of Oswald's guilt for acceptance. It cannot stand under the weight of the evidence.


[1] It was Sylvia Meagher who brought the shortcomings of Givens's story to light in her book, pp. 64-69.

Since her initial disclosure in 1967, Mrs. Meagher has discovered several unpublished documents in the National Archives that leave little doubt that Givens's story of seeing Oswald on the sixth floor {was} fabricated and that staff lawyer David Belin knew this when he took Givens's testimony. The documents tell a shocking story, which Mrs. Meagher incorporated in an impressive article published in the "Texas Observer," August 13, 1971.

When Givens was interviewed by the FBI on the day of the assassination, he not only failed to mention having seen Oswald on the sixth floor, but he actually said he saw Oswald on the {first} floor at 11:50, reading a newspaper in the domino room (CD 5, p. 329). On February 13, 1964, Police Lt. Jack Revill told the FBI "he believes that Givens would change his story for money" (CD 735, p. 296). A lengthy memorandum by Joseph Ball and David Belin dated February 25, 1964, acknowledges that Givens originally reported seeing Oswald on the first floor reading a paper at 11:50 on the morning of November 22 (p. 105). On April 8, 1964, Givens testified for Belin in Dallas and said for the first time that he saw Oswald on the sixth floor at 11:55 when he returned for his cigarettes (Givens had never before said that he returned to the sixth floor) (See 6H346-56). Belin twice asked Givens if he ever told anyone that he "saw Lee Oswald reading a newspaper in the domino room around 11:50 . . . that morning?" On both occasions, Givens denied ever making such a statement (6H352, 354). Finally, on June 3, 1964, when the FBI reinterviewed him, Givens "said he {now} recalls he returned to the sixth floor at about 11:45 A.M. to get his cigarettes . . . [and] it was at this time he saw Lee Harvey Oswald" (CD 1245, p. 182; emphasis added).

Belin apparently found nothing unusual in Givens's failure to mention the sixth-floor encounter until he testified in April 1964, contradicting a previous statement that he denied making. Givens's denial does not prove he actually never made his early statement, although for Belin the pro forma denial was sufficient, despite the caution of Lt. Revill that Givens would change his story for money. The Report (R143) mentions only the later Givens story and says nothing of the original version. This is consistent with the constant suppression of evidence exculpatory of Oswald.

[2] Letter from J. Lee Rankin to J. Edgar Hoover, dated March 16, 1964, in the "Reading File of Outgoing Letters and Internal Memoranda."

This letter was based on a request for additional investigation by staff lawyers Ball and Belin. In their lengthy "Report #1," dated February 25, 1964, they suggested that "everyone who had a reason to be in" the Depository on November 22, 1963, be interviewed. "Each of these persons should be asked: 1) to account for his whereabouts at the time the President was shot. . . . 3) if he saw Lee Oswald at that time" (p. 125).

[3] The episode with Jarman and Norman was first brought to light by Harold Weisberg in "Whitewash," p. 73. Sylvia Meagher later discussed the issue in more detail in her book, p. 225.

[4] The Report mentions this incident in a context other than one of Oswald's defense. It assures that Jarman neither saw nor ate with Oswald at the times involved (R182). This in no way disproves the validity of Oswald's claim that he saw Jarman, for it would not have been unusual for Jarman or any other employee not to have noticed Oswald.

[5] Harold Wesiberg, "Photographic Whitewash," pp. 74-75, 210-11.

[6] Ibid., p. 74.

[7] Mark Lane, chap. 6.

[8] The possibility that the sixth-floor gunman was a decoy was first suggested by Sylvia Meagher in her book, p. 9.

[9] E.G., see Weisberg, "Whitewash," pp. 39-42, and Lane, chap. 5.

[10] "CBS News Extra: `November 22 and the Warren Report,'" broadcast over the CBS Television Network, September 27, 1964, p. 20 of the transcript prepared by CBS News.

[11] Ibid. At page two of the transcript, Walter Cronkite specifies that CBS interviewed various witnesses a month before the release of the Report.

[12] "Life," October 2, 1964, pp. 42, 47.

[13] E.G., see CEs 1769, 1797, 2964, 2965; CD 1405 (reproduced in "Photographic Whitewash," p. 209); Curry, pp. 72, 73, 77; "Life," October 2, 1964, p. 48.

[14] Baker testified to this at 3H257. In December 1963, Truly, who also saw Oswald within 90 seconds after the shots, said that Oswald had been wearing "light" clothing {and} a T-shirt (CD 87, Secret Service Control No. 491)