Impossible: The Case Against Lee Harvey Oswald (15 page)

I assume that some readers would have put a maximum confidence level of 25%, versus my 5%. But again, recall, even with a disagreement as profound as this, the higher confidence level of 25% is still well short of the 95% threshold required; accordingly, Jim must be found “not guilty” of
this
charge (though possibly guilty of the related change of passing counterfeit bills).

So far, our linear model of the flowchart has worked fairly well. But these have been comparatively simple examples. Our next hypothetical is far more complicated — somewhat like the Kennedy case, though by comparison much simpler — and will present extraordinary challenges for our linear model:

THE CHARGE
Jim, age 50, has been charged with the crime of
printing
counterfeit bills. The prosecution and defense have introduced the following evidence into the record:

THE EVIDENCE FOR THE CHARGE
Prosecution Evidence

1. Jim tried to pay for a gaming system with counterfeit notes.
   
2. The police found a printing press in his house, with $7,500 in freshly minted bills next to the printing press.
   
3. The police also found the following book in Jim’s library: “
   How To Forge A New Identity
   .
   ”
   Jim claims the book was given to him as a gift.
   
4. Jim’s fingerprints were on the printing press. And the money.
   
5. A security camera in Jim’s house videotaped Jim printing the money just two days before he was arrested, according to the testimony of a detective.
   
6. An email sent through his
   Gmail
   account from Jim to his friend Jack quotes Jim as writing “how easy the counterfeiting racket is.”
   
7. When shown the evidence, Jim admitted to the charge, and explained that he “got into the counterfeiting game” because he “needed the money.”
   

Defense Evidence

1. A week before, Jim had advertised his 20-year-old car in a classified ad in the local paper, and 3 days before Jim sold that car to a man named Bill, who paid Jim in cash. Jim used this cash to purchase the gaming system. The ad was definitely placed by Jim, and entered into evidence by the defense. Bill, however, cannot be located by the police force. Still, the title was recorded by the DMV as having been transferred the day before the notes were passed to a person named “Wendy.”
   
2. Jim claims the printing press was used to print flyers for his church. Jim denies that he had $7,500 in his room, and says that if there was any money there, it was planted by someone. A police log showed that $7,500 was found. A detective testified that he personally only found $2500, and is not sure why the log says $7,500. There is no other testimony by any other policeman that verifies the amount on the log.
   
3. Jim claims a security videotape would prove the money was planted. Unfortunately for Jim, the police confiscated the tape, and originally refused to release it until a period of 75 years had passed. Eventually, under pressure by the defense, they did. When the tape was run, unfortunately, the defense found a 15 minute gap, and even more unfortunately,
   the gap was located
   precisely
   in the area that would have exonerated Jim
   . Police initially denied that they caused this gap, but later changed their story to this: a new hire at the police force had
   inadvertently
   erased that part of the tape! “No problem,” say the police. One of their detectives testified that he saw the tape
   before
   it was erased, and in that 15 minute segment, he saw Jim printing the money. The detective who made this allegation had been on the force for 20 years, had received numerous commendations, and had been a member of Jim’s church for 20 years. The detective also passed a lie detector test.
   
4. Jim was going to call five other witnesses for his defense. As luck would have it, though, one witness died of natural causes, two died in an accident before the trial, and the other two who had signed pretrial affidavits confirming Jim’s story then changed their mind and refused to testify in his defense. This left Jim with no witnesses and two discredited affidavits.
   
5. With regard to the fingerprints on the printing press, Jim said that he handled the printing press in the course of printing the flyers. His fingerprints were on the money because after receiving it from Tom, he counted it.
   
6. Jim denies sending the e-mail. His friend Jack went on a long-term vacation overseas, and could not be personally contacted, but an affidavit provided by the prosecution, in Jack’s handwriting, confirms the receipt of an e-mail without specifically addressing the contents.
   
7. Jim said that he was coerced into making a confession, but failed a lie detector test administered by the police department. However, the defense found three witnesses to testify that the person administering the lie detector test had altered the data on three separate occasions. Two of these witnesses, as it so happened, had a prior forgery conviction.
   

Uh-oh!! A little different, huh? This is the type of devilishly complicated hypothetical situation law school professors provide as fodder for final exam essays, and one that provides a hint of the complexity offered by the Kennedy case. And it is extremely instructive in at least one way; notice, when you saw
only
the prosecution’s evidence, you were ready to hang Jim high; but now, this evidence presented by the defense
changes everything
. In addition, and more to the point being made here, you’ll notice that due to this complexity, this hypothetical makes the breakout flow model
unworkable
.

Suppose we ask our first question, “is the evidence related to the charge
comprehensive
?” When we analyze the data, we quickly discover that
we can’t reliably answer this question
! To take the most obvious example, a key piece of evidence — the tape — was obliterated at the most important point. The evidence could have completely exonerated the defendant! And yet, while we might want to conclude that negligence of this sort on the part of the authorities ought to play the same role in this case as the role the atom bomb played to Nagasaki, we do have the testimony of the detective that Jim was lying. The detective appears to be reliable, and we do not want to believe that a detective would commit perjury. Can this evidence be seen as a legitimate substitute? To ask it another way, since the tape was erased in the worst possible place, can we really say that the detective’s “fill-in” testimony — supposedly reliable though it may be — is an adequate substitute for the cold hard evidence the defense would have had had not the police
negligently
handled the evidence?

Now, you might be confused, and consequently undecided at this point, but unfortunately the flowchart really doesn’t allow for indecision of this nature. And simply moving forward won’t be of much help, because assessing the credibility of the prosecution will require a simultaneous assessment of the credibility of the defense.

At this stage, we can see that the linear model is going to present some difficulties, so let’s take a stab at a new model:

We can refer to this new approach as the
dynamic input model
, a model which allows for a more or less simultaneous analysis (i.e., it need not be analyzed in any particular order). What this model sacrifices in
certainty
, it gains in
flexibility
. Different weights can be assigned to the parameters as warranted by the evidence, and in no particular order.

The center rectangle with broken lines represents a bar indicating confidence level, a bar to be raised or lowered depending on the quality and quantity of the inputs. For example, if the evidence is only 90% comprehensive, the bar can be reduced to a 90% level. If the evidence for the prosecution lacks credibility, the height of the bar will be lowered, even more and if the evidence for the defense lacks credibility, the height of the bar will be raised. If the evidence presented by the prosecution lacks consistency, the height of the bar can be raised or lowered depending on the nature of the inconsistency. And so forth.

Because this model is not linear, our questions change to reflect the reality that they can be asked in any order. Let’s try to answer these questions in relation to our latest hypothetical scenario, and see how the answers affect the height of the bar:

How
comprehensive
is the evidence?
The evidence is not nearly as comprehensive as we want it to be. The 15 minute gap is a very serious omission. It is true that the detective has provided substitute testimony, but at the expense of a substantial reduction in the
quality
of testimony; the detective’s testimony
functions
almost like hearsay evidence, an evidence of much lower quality, generally considered inadmissible.

How
credible
is the evidence?
As indicated above, there are serious credibility issues with both prosecution and defense evidence. However, since the burden of proof is on the prosecution, if its credibility issues are not successfully addressed, the credibility issues of the defense are not nearly as important.

One of the major problems the prosecution has is its initial decision to withhold what had the potential to be completely exculpatory evidence. True, eventually the police department did release the evidence, but in withholding the evidence initially it indicated an intent that can only be called
suspicious
. These suspicions are only confirmed by the 15 minute gap.

Yet another serious issue for the prosecution is the anomaly between the amount of money registered on the log and the contradictory testimony. So, either the police department has extraordinary quality control issues, or malicious intent . . . as it so happens, in neither situation is the case for the prosecution improved.

Because of these issues, the credibility issues for the defense do not loom clearly as large. Yes, the name on the title does not reflect the name of the person to whom the car was sold, but that person could be Jim’s wife. In any event, the report of title confirms that the car was sold, adding credibility to this claim by the defense.

There are potential problems with the defense allegation regarding the e-mail, in light of the affidavit, but then again, just how reliable is this affidavit given the issues with the gap in the tape, and the fact that it does not really address the content of the letter?

As you can probably guess, the whole case is going to turn on the credibility of the evidence, and at this stage of the game, there seem to be some significant flaws with that presented by the prosecution.

How
sufficient
is the evidence?
How this question is answered depends to a great extent on the analysis of credibility. The evidence which is deemed not credible (log entry, detective testimony, lie detector, etc.) can be excluded from consideration, and in the process of exclusion, the case could possibly be decided. At this stage of the game, the prosecution has some very serious issues, and
the more
exclusion
, the less
sufficiency
.