A Cruel and Shocking Act: The Secret History of the Kennedy Assassination (30 page)

Markham: “No, he wasn’t, he didn’t look too heavy, un-huh.”

Lane: “He wasn’t too heavy, and would you say that he had rather bushy hair?”

Markham: “Yeah, just a little bit bushy.” (She would later say that she was confused by Lane’s insistent questioning and meant to say that Oswald’s hair was unkempt, not bushy.)

After turning for a moment to another set of questions, Lane tried again: “Do you say that he was short and a little bit on the heavy side and had slightly bushy hair?”

Markham: “Uh, no, I did not. They didn’t ask me that.”

Despite Lane’s badgering, the unsophisticated Markham mostly stuck to the account she had given the police. She continued to believe that Lee Oswald had killed Tippit, she said.

That was not how Lane would portray the conversation, however. In public appearances in the weeks that followed the phone call, he announced that he had talked to Markham and that she was now backing away from her description of Tippit’s killer. “She gave to me a more detailed description of the man who she said shot Officer Tippit—she said he was short, a little on the heavy side, and his hair was somewhat bushy,” Lane said, twisting Markham’s words.
*

The commission’s staff lawyers shared Warren’s contempt for Lane. David Belin thought that Lane used a “carefully cultivated mask of sincerity” to turn the Kennedy assassination into a “lifetime meal ticket.” Jim Liebeler compared Lane’s tactics to the “old legend about frogs jumping from the mouth of a perfidious man every time he speaks.” The frogs represented the man’s lies “and you have to run in all directions to grab them.”

*

Lane accepted the commission’s invitation to testify, and the hearing was scheduled for Wednesday, March 4. Lane was the only witness ever called before the commission to request a public hearing, which was granted; reporters were invited into the hearing room on the ground floor of the VFW building. “I think that there are matters here of grave concern to all the people of our country, and that it would, therefore, be fruitful and constructive for the sessions to be conducted in a public fashion,” Lane said. He clearly sensed how valuable it would be to have the Washington press corps witness this moment; by allowing him to face down the chief justice and the other gray-haired commissioners, Lane might win newfound credibility as the commission’s leading critic.

Rankin led the questioning: “Do you have some information concerning the matters being investigated by this commission that you would like to present to the commission?”

Lane launched into a long, detailed monologue intended to pick apart the evidence that the Dallas police and the FBI—and, it now seemed, the commission—were presenting to the public to suggest Oswald’s guilt. As it had been from the beginning, his method was to suggest a cover-up whenever he could identify even small discrepancies in the public record and in press reports.

He began by focusing on the many photographs that had appeared in the weeks since the assassination that purported to capture an image of Oswald holding the Italian-made Mannlicher-Carcano rifle that had been identified as the murder weapon. A photo that had been published on the cover of
Life
magazine—the photo that Marina Oswald said she had taken in the yard of their home in New Orleans in the spring of 1963—showed the rifle equipped with a telescopic sight. But a seemingly identical photograph distributed by the Associated Press and published in the
New York Times
and other newspapers showed the rifle without the scope. That, Lane said, suggested that the photos had been doctored, which in turn could well be evidence of a “crime” to hide a conspiracy. (The truth, the commission quickly determined, was nothing of the sort. In some cases, photo editors altered the photo to create the sharpest possible silhouette of the rifle—a technique that had long been widespread, if ethically questionable, among American newspapers and magazines.)

Lane then cited witness statements in the records of the FBI and the Dallas police—statements that the commission had in its own files—that contradicted the official story that three shots had been fired from the Texas School Book Depository, hitting Kennedy and Connally from the rear. Some witnesses, Lane pointed out, heard four or more shots, while others insisted that the gunfire had come from in front of the limousine—from the so-called grassy knoll on the west side of Dealey Plaza or from the freeway overpass ahead of the motorcade. Lane argued that the witness statements, along with the medical evidence, offered “irrefutable evidence that the president had been shot in the front of the throat.”

Rather than challenge Lane, the chief justice and Rankin mostly sat back and let him talk for almost three hours, just as they had permitted Lane’s client, Marguerite Oswald, to offer her confused testimony the month before, mostly unchallenged. Warren’s strategy, it seemed, was to rob Lane of the ability to argue that his evidence had gone unheard by the commission. “We asked you to come here today because we understand that you did have evidence,” Warren told Lane. “We are happy to receive it. We want every bit of evidence that you have.”

During his testimony, Lane repeated a request that he had been making publicly for weeks: He wanted to serve as Oswald’s defense attorney before the commission, and to see all the evidence gathered by the investigation. “The fact that Oswald is not going to have a real trial flows only from his death,” Lane said. “Every right belonging to an American citizen charged with a crime was taken from him, up to and including his life.” He said Oswald deserved “counsel who can function on his behalf in terms of cross-examining evidence and presenting witnesses.”

Warren listened patiently before turning him down. “Mr. Lane, I must advise you that the commission, as you already know, has considered your request and has denied it. It does not consider you as the attorney for Lee Oswald.” He noted that Marina Oswald, his closest survivor, had not requested a lawyer to, essentially, defend her husband’s ghost. “We are not going to argue it,” Warren said.
*

*

On the commission’s staff, no one could poke as many holes in Lane’s claims about the evidence as Redlich’s deputy, Melvin Eisenberg. The young lawyer had become the commission’s in-house expert on the science of criminology, and he could see how ridiculous many of Lane’s claims were, especially about the scientific evidence; he assumed others could see through Lane, too. “It would be ridiculous to be obsessed with Mark Lane,” he told himself. He was less bothered than others on the staff by Lane’s implication that they were all part of a conspiracy to hide the truth about Kennedy’s murder. “I thought that as long as we offered honest answers, nothing could happen to us,” he said. “Our reputations were safe.”

With the diligence that had led him to graduate first at Harvard Law School five years earlier, Eisenberg had finished poring through the thousands of pages of criminology textbooks that had been sent over from the Library of Congress. The science, he believed, showed that Oswald was guilty beyond any reasonable doubt: the ballistics and fingerprint evidence conclusively demonstrated that he had fired the bullets that killed Kennedy and nearly killed Governor Connally. Eisenberg could not rule out the possibility that Oswald had accomplices, but he was certain that Oswald had pulled the trigger that day at Dealey Plaza. “There couldn’t be any rational doubt that Oswald had at least shot the bullets that entered the president’s body,” he argued.

Eisenberg had not found it difficult to understand the science, which he outlined to the commission in a series of memos that winter. It came down to some very basic physics, chemistry, and biology. “It was easy,” he said. “This wasn’t rocket science.” He thought the ballistics evidence was especially straightforward. It could be proved with almost 100 percent certainty that the bullets that passed through the bodies of Kennedy and Connally had been fired from Oswald’s mail-order rifle. As Eisenberg learned from his reading, a rifle would leave distinctive grooves and other markings on bullets that traveled through its barrel. By examining the spent bullets under a microscope, an investigator could identify Oswald’s rifle as the murder weapon “to the exclusion of every other rifle on earth,” Eisenberg said.

In arguing for Oswald’s innocence, Lane was relying on witness statements and other types of evidence that deserved little, if any, credibility, Eisenberg now knew. It was disturbing for Eisenberg, who had never practiced criminal law, to discover that serious criminologists placed little value in the testimony of so-called eyewitnesses. Hollywood and popular crime novels might want to suggest that the best possible proof of a crime came from the accounts of people who had seen it take place, but from what Eisenberg was reading, eyewitnesses routinely got their facts wrong. It was common for people who saw the same crime to offer completely different accounts of what had happened, sometimes resulting in the conviction—and even the execution—of the innocent.

Even less credible, Eisenberg learned, was testimony from witnesses about what they had
heard
at a crime scene—so-called ear-witness testimony. It was often flatly wrong, especially in a relatively closed-in space like Dealey Plaza, where the sound of gunfire had ricocheted wildly and where witnesses had panicked and paid little attention to what they were hearing because they were running for their lives. In one of his memos, Eisenberg wrote that it was not surprising that some witnesses had heard only two or three shots, while others heard four or five or more, and that some witnesses insisted that they had heard the shots fired from the grassy knoll and other locations in front of the president’s motorcade rather than from the Texas School Book Depository.

As part of his assignment, Eisenberg met with scientists from the FBI’s crime laboratory, and he was impressed with their technical expertise and their intelligence. Still, he felt the commission should not rely solely on the bureau for the scientific analysis, so he asked permission to hire outside experts to review the physical evidence. To review the fingerprints, he proposed that the commission seek experts from the crime laboratory of the New York City police department. For the firearms, he suggested that the evidence be reviewed by nationally renowned specialists at the Illinois state Bureau of Criminal Identification. The commissioners, already so skeptical of the FBI, readily agreed.

Burt Griffin took time away from his study of Ruby’s life to bolster Eisenberg’s findings. After searching through FBI and Dallas police files, Griffin wrote a memo on March 13 that identified four men in and around Dallas who closely resembled Oswald and who had been mistaken for him on the day of the assassination. A fifth look-alike, Billy Lovelady, who worked with Oswald at the book depository, was photographed on the steps of the book warehouse minutes after the shots rang out. The commission’s lawyers were not surprised that even after Lovelady publicly identified himself as the man in the photographs, Mark Lane continued to insist it was Oswald on the steps—proof, Lane suggested, that Oswald must have been innocent of the president’s murder because he did not flee the scene of the crime.

21

THE OFFICES OF THE COMMISSION

WASHINGTON, DC

FEBRUARY 1964

Several weeks into the investigation, the commission’s staff lawyers continued to assume the best about the CIA. The officials they dealt with were smart and often charming, and they seemed sincere in their assurances that the agency would share whatever information it had about Oswald. That was in sharp contrast to the attitude of much of the staff, and certainly of the commissioners, toward Hoover and the FBI; the bureau was now widely viewed as obstructing the commission’s work, probably to hide the bungling in its surveillance of Oswald before the assassination.

Then, in February, came the first disturbing evidence that the CIA might be withholding something, too. That month the staff learned from the Secret Service that, in the hours immediately after the president’s assassination, it had been provided with CIA reports detailing what had been known about Oswald’s visit to Mexico City. The commission double-checked its files and determined that those reports had never been handed over to the commission; the CIA had never acknowledged that the reports even existed. The Secret Service declined to turn the reports over to the commission, saying that would be a decision for the spy agency since the reports were so highly classified.

Since joining the commission, Rankin had dealt with the CIA mostly through Deputy Director Richard Helms, a man he had come to like and respect. Rankin recalled years later that he had believed at the time that Helms and other top officials at the CIA were cooperating fully. But the discovery of the missing CIA reports about Mexico City alarmed Rankin, and in this case he thought that he needed to go over Helms’s head. In February, he wrote directly to Helms’s boss, Director of Central Intelligence John McCone, insisting that the agency turn over copies of the reports that it had given to the Secret Service about Oswald’s Mexico trip. And just so there was no confusion in the future, Rankin asked in the letter that the CIA be prepared to gather up and hand over its complete files on Oswald, including a copy of every communication it had with other government agencies about him before and after the assassination. After the mix-ups and ill will between the commission and the FBI, Rankin was—politely, he thought—putting the CIA on notice.

The commission received the CIA’s reply on Friday, March 6, when the agency turned over a thick file that, it said, contained all of the information the agency had ever gathered on Oswald, beginning with his attempted defection to Moscow in 1959. Willens, Rankin’s deputy, and others went through the file, and they could detect almost instantly how much was still missing. The file contained none of the paperwork or cable traffic about Oswald that the agency’s Mexico City station had sent to CIA headquarters that fall, for example.

Willens called Helms, who admitted that some material was still being withheld because of “certain unspecified problems.” Willens recalled in a memo to Rankin that Helms tried to offer an explanation. “He stated that some of the information referred to has already been passed on to the commission in a different form and other of the material included irrelevant matters or matters that had not checked out.” This was unacceptable, Willens said; the commission needed to see everything. Helms pushed back, seeming to suggest—cryptically—that the young lawyer did not fully understand the implications of forcing the CIA to share everything it had on Oswald. The agency “would prefer not to comply,” he said. Unlike Rankin, Willens felt he had no authority to insist that Helms do anything, and so he and Helms agreed to discuss the issue at a meeting tentatively scheduled for the following week, when Helms planned to visit the commission’s offices in Washington.