Impossible: The Case Against Lee Harvey Oswald (16 page)
Read Impossible: The Case Against Lee Harvey Oswald Online
Authors: Barry Krusch
Tags: #Non-Fiction, #History
How
consistent
is the evidence?
Again, how this question is answered will largely rest on the credibility analysis. However, if we assume that all evidence is equally credible, we see that there are serious problems with consistency (log variation, prosecution vs. defense version of events, etc.) that would radically reduce the confidence level. The only remedy for this from the perspective of the prosecution is to attack the credibility of the defense, but, considering that it has credibility problems of its own, its attack would itself not be very credible.
This is just a very brief, perfunctory analysis, which could go on for many more pages, and could be subject to hours-long debate. In short, this case is a
mess
.
When you have a mess, you have a problem. Your whole tight-knit case can unravel when even one thread comes loose, particularly if you have
inconsistent
evidence. Follow the thread:
Not consistent, not credible;
Not credible, not comprehensive;
Not comprehensive, not sufficient;
Not sufficient, no case!
That is one thread, and there are several others possible. In circumstances like the preceding scenario, what do we do? Luckily, complex situations like these can sometimes be resolved by going back to the basics, relying on due process considerations to come to our rescue.
The law of the United States helps us out, especially in regard to the all-important videotape issue. As the Supreme Court pointed out in
Berger v. United States
(295 U.S. 78, 88 (1935); emphasis supplied),
[A prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Indeed, as
Berger
pointed out, one of the primary duties of the law is the disclosure of exculpatory evidence. The standard has been articulated by the
American Bar Association
in 1983, in its
Model Rules Of Professional Conduct
. The primary rule on point is Rule 3.8 (d), which reads as follows:
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The prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor . . .
This standard is exemplified in several cases by the Supreme Court. One of these is
Brady v. Maryland
, in which the Supreme Court discussed the early case of
Mooney v. Holohan
, and stated as follows (373 U.S. 83, 87 (1963) (emphasis supplied)):
We now hold that the
suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution
.
The principle of
Mooney v. Holohan
is not punishment of society for misdeeds of a prosecutor, but avoidance of an unfair trial to the accused.
Society wins not only when the guilty are convicted, but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly
. . . . A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice . . .
The court also held in
United States v. Bagley
that every defendant has a right to know of
“evidence favorable to the [defendant] that is material to either guilt or punishment.
” (473 U.S. 667, 675 (1985) (emphasis supplied)). There are several other cases along the same lines.
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Now, it is obvious that these cases are not exactly on point for our hypothetical. For example, what we
do not have
in this case is a videotape demonstrating innocence that has been withheld by the police and/or prosecution (a failure to disclose exculpatory evidence). But what we do have, however, is the
destruction
of that evidence! The tape could have completely shown the innocence of the defendant if it was not destroyed; our hypothetical is less about the
temporary
suppression of evidence and more about the
permanent
suppression of that evidence, which we all must agree is a whole lot worse.
Yes, the prosecution has provided us with the testimony of the detective indicating that the evidence would not operate to exculpate, but in light of the cases above, where there is such an overriding interest in bringing out evidence favorable to the accused, we can see that there has been, at the very least, a dereliction of duty on the part of the prosecution. That
has
to play a role in our decision, because
at a very critical juncture
, the police and prosecution have created something they absolutely do not want to create . . .
doubt
!
Yes, thanks primarily to the issue with the videotape, and the issue with the log, we now have a case
dripping
with
doubt
!
And doubt does
not
favor the
prosecution
!
To really see the impact of this doubt, contrast this situation with our very first hypothetical, and the extremely high confidence level which resulted. If an extremely high confidence level could be attained with evidence of
high
credibility and
no contradictory evidence
, how much would that confidence level be reduced with evidence of
low
credibility, and a
great deal
of
contradictory
evidence? The answer essentially speaks for itself. I will let you fill in the blanks, and then I will offer my opinion:
So, here’s my opinion: there is
no way
to be confident in a case this doubtful, with so many loose ends. Given all the doubt in this case, I would give a low of 35 and a high of 50. Basically, at its best, to me the case is a coin flip. The primary reason is the 15 minute gap on the tape. This is suspicious! I don’t want to believe detectives lie, but even more, I don’t want to put an innocent person in jail. As our examination of the law underlying the hypothetical reveals, the police have a
responsibility
to preserve any evidence which can positively exonerate an defendant, and given the overriding assumption of our system that sending innocent people to jail is the
sine qua non
of nadirs to avoid, the failure to execute this responsibility must be met with a severe consequence to the government, sending them the message that if they don’t fulfill their responsibility, their power to incarcerate will be reduced or eliminated. If there is a better way to prevent the tyranny of a government manufacturing star chambers that can jail anyone it pleases, I can’t think of it.
You will most likely analyze this somewhat differently, and surely give a somewhat different range. And others will give a range different from yours. Ultimately, in an actual case, this decision would not be made just by me, nor just by you, but with other people organized together in a panel of twelve called a
jury
.
And this takes us to another extremely significant point not yet raised:
When a jury makes its decision, the
most significant opinion
is that of the person with the
lowest confidence level
!
One might think that a jury averages out its responses, and reports that average to the judge, but that is not the way it works. If 11 jurors believe that the confidence level is 100%, and one juror believes that the confidence level is 80%, this results in a
mistrial
! Rule 31 of the
Federal Rules Of Criminal Procedure
provides as follows:
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If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. The government may retry any defendant on any count on which the jury could not agree.
In terms of our 95% confidence level, this federal rule takes us to a related rule:
In a normal jury trial,
all
the jurors must assign above a 95% confidence level for the charge to go forward. If
even one
juror believes that the case against the defendant is
not proven beyond a reasonable doubt
, there is a
mistrial
, and the government will have to retry the case.
So, here is the critical takeaway if you have assigned a higher confidence level greater than 95% (and I am not sure that is possible); understand that
if even one person
on a jury disagrees with you, there will be a
mistrial
! Accordingly, it seems extraordinarily unlikely that there would be a successful prosecution based on the fact-pattern above.
At this stage of the game, we have analyzed our evidence using two different models, and we are almost ready to look at the Kennedy evidence in close detail. Before that, however, we need to define the significance of our categories with a few real-world examples, and, following that, discuss one exceptionally important category of evidence, which, if present in the evidentiary database, would be absolutely
toxic
to the case of the prosecution.
Chapter 5
Reasonable Doubt:
Categories Of Evidence Reducing Confidence Level
In the previous chapter, we analyzed at a high level how four criteria are used to calculate confidence level:
- How
comprehensive
is the evidence? - How
credible
is the evidence? - How
sufficient
is the evidence? - How
consistent
is the evidence?
Now, evidence can be used (obviously) to increase the confidence level of a proposition, but some evidence can actually
reduce
confidence level in that proposition. In fact, there is a category of evidence (which we can call
meta-evidence
) that throws doubt
on
the evidence itself
.
Remember the destroyed videotape in one of our earlier scenarios? The videotape
was
evidence, but that evidence was
destroyed
under the custodial “care” of the police, and that
destruction
now becomes evidence
about
the evidence, i.e., meta-evidence; and certain types of meta-evidence, like
destroyed
evidence,
must reduce confidence level
. Here are the most important categories of evidence reducing confidence level, some of them slightly overlapping, most of them meta-evidence:
- Altered Evidence
- Contradictory Evidence
- Destroyed Evidence
- Evidence based on data of suspect validity
- Evidence derived from deviations from accepted procedure
- Evidence inconsistent with a conclusion
- Evidence that can support multiple conclusions
- Evidence which violates the laws of physics
- Insufficient evidence for the primary proposition
- Irrelevant evidence (evidence which does not relate to the conclusion [(
non-sequitur
)]) - Non-evidence: phenomena seen as evidence which are not (i.e., conclusions)
- Suppressed Evidence
- Tests not performed which would have the capability to exonerate the defendant
Now, as we examine the evidence in the subsequent chapters, it will not necessarily be clear into which of four criteria these categories fall.
For example, suppose we find an example of evidence
suppressed
by the Warren Commission (which will reduce confidence in one or more elements).
With reference to our four criteria, would this be an example of evidence which is not
comprehensive
,
credible
,
sufficient
, or
consistent
? While this is not of great concern for the
dynamic input
model, it is a concern for the
linear
flow
model, which may be applicable to future analysis to be performed in this book, and so is included here for those readers who want to use this style of analysis.
So let’s take a stab at classification. While
suppressed evidence
could fall under more than one of these categories, depending on how we view it, the most
precise
category would be evidence which is not
comprehensive
, since suppressed evidence by definition prevents a juror from having a comprehensive (complete) view of the evidentiary picture.
But of course we have all of the other evidence categories listed above to contend with, including
destroyed
evidence,
contradictory
evidence, and
irrelevant
evidence. Under which categories should
these
be classified? I have given this some thought, and arrived at the following classification:
Comprehensive
- Tests not performed which would have the capability to exonerate the defendant
- Suppressed Evidence
- Destroyed Evidence
Credible
- Altered Evidence
- Evidence based on data of suspect validity
- Evidence derived from deviations from accepted procedure
- Non-evidence: phenomena seen as evidence which are not (i.e., conclusions)
- Evidence which violates the laws of physics
Sufficient
- Insufficient evidence for the primary proposition
- Irrelevant evidence (evidence which does not relate to the conclusion [(non-sequitur)])
- Evidence that can support multiple conclusions
Consistent
- Contradictory Evidence
- Evidence inconsistent with a conclusion
This categorization is not perfect, but it provides useful template for a more rigorous version to be created at a future time. In the meanwhile, I am going to explain why I believe these examples relate to the particular criteria.
Comprehensive
Tests not performed which would have the capability to exonerate
Comprehensive evidence is, by definition, a
complete
record. A test that
should
be performed, but is
not
, is by definition a violation of the requirement of comprehensive evidence, which of course, is derived from the due process considerations contained in the Constitution as stated by the Supreme Court. Recall the statement in
Berger v. United States
that the compelling interest “in a criminal prosecution is not that it shall win a case, but that justice shall be done.” (
Berger v. United States
, 295 U.S. 78, 88 (1935)). Justice is not done, by definition, when the only tests performed are those which can demonstrate the guilt (versus the innocence) of a party. From the standpoint of keeping the innocent out of jail, the most
important
tests to perform are in fact those which can
exonerate
a defendant. If, for example, the defendant is charged with murder using a rifle, and he argues that he did not fire the rifle, the factfinding authority reduces confidence (i.e., creates reasonable doubt) simply by
not testing
the rifle to be sure that in fact it was fired on the day of the shooting.
Suppressed Evidence
For the same reasons listed above, evidence which is suppressed is
by definition
a failure to produce comprehensive evidence. Three examples of suppressed evidence are evidence we never see due to “gag orders” (orders by authorities to potential witnesses that they should not provide testimony), testimony never given because a witness is not called to testify before the relevant tribunal, and evidence said (truthfully or not) to be buried for reasons of “national security.”
Destroyed Evidence
To destroy evidence is to
permanently
suppress it! When evidence that could possibly exonerate a defendant is destroyed, it creates the greatest suspicion possible regarding the intent of those destroying the evidence, and a presumption that the evidence destroyed was destroyed because the entity destroying the evidence
did not want it
revealed
. As might be expected, examples of this strike a major blow to confidence level for not just one, but two reasons (missing evidence plus evidence of obstruction of justice).
Now let’s move on to the categories of evidence reducing confidence level related to
credibility
.
Credible
Altered Evidence
The phrase “credible evidence” is in some sense redundant, because if evidence is not credible, then it doesn’t count as evidence at all, in the same way that counterfeit money doesn’t count as real money. Again, by definition, when evidence is altered it reduces the credibility of the evidence to the extent of the alteration. To take a simple example, if the goal of a prosecutor is to prove that a person was at a certain location on January 3, and the prosecutor produces a receipt from a store near that location that shows the defendant purchased an item on January 3, the defense irrevocably negates the credibility of the receipt by conclusively showing that the date had been
altered
.
Evidence based on data of suspect validity
Related to the point above, some data may not be altered intentionally, but it might be based on sources that in and of themselves have had demonstrable issues with validity (for example, an uncalibrated radar gun used to justify speeding tickets).
Below are a few examples of suspect data:
- Witnesses who inherently lack credibility
(
Example
: witnesses who change their stories). - Coached witnesses
(
Example
: witnesses led to make a statement by the prosecution or defense). - Bribed witnesses
(
Example
: statements made by witnesses who have been paid for the remarks). - Intimidated witnesses
(
Example
: statements by witnesses who have been threatened). - Tests performed which don’t match actual conditions
A test designed to demonstrate the viability of an action must duplicate the conditions under which the action was to be performed precisely. If the conditions are dissimilar, the confidence level of the test must be reduced in proportion to the dissimilarity. One example: repairing a broken rifle (supposedly used by the defendant) before it is first tested for accuracy.
Evidence derived from deviations from accepted procedure
Precisely due to cases such as the above, procedures have been created to help guarantee the authenticity of handled evidence. In certain cases, though, the process by which evidence is handled and gathered deviates
so greatly
from accepted procedure that it raises a doubt as to the validity of the evidence
simply by virtue of the deviation
. For example, if the normal procedure when a suspect is interrogated is to have a court reporter or stenographer or tape recorder present, the lack of a court reporter or a stenographer or tape recorder during an interrogation provides
prima facie
evidence of
deviation
from procedure, which reduces confidence because a procedure designed to maintain integrity was
ignored
. Other examples:
- Oral confirmation rule
If a rule of evidence is that no drawing may be admitted which does not have simultaneous oral testimony that the drawing accurately represents reality, any drawing admitted into evidence without that simultaneous oral testimony lacks credibility simply by virtue of the deviation from the established procedure. - Hearsay rule
According to the
Federal Rules Of Evidence
§ 802, hearsay evidence is generally not admissible, with certain well-defined exceptions.
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Evidence which is admitted which is not part of these categories of exceptions is by definition non-credible evidence. - Chain of custody rule
An important evidentiary rule regards the
chain of
custody
, that a piece of evidence must be able to be directly tracked from its first discovery to its entry into evidence without any gaps in possession, and if that rule is broken, then the evidence is
automatically suspect
due to the deviation from the established procedure.
Non-evidence: phenomena seen as evidence which are not (i.e., conclusions)
You can only convict someone with
evidence
. However, certain phenomena are erroneously characterized as evidence. This general category can capture any examples not listed above, for example,
opinions
, particularly uninformed ones, and particularly opinions as to
conclusions
, which are
not
in and of themselves evidence.
The classical example of this is the phenomenon known as
begging the question
, a close variant of
circular reasoning
. We saw an example of begging the question earlier, when Vincent Bugliosi made the statement (paraphrasing) “since the single bullet theory is true, any conclusions to the contrary based on the Zapruder film must be false.” The key problem with Bugliosi’s remark is that the statement “the single bullet theory is true” is in fact a
conclusion
, not
evidence
. And if that conclusion is itself
contradicted
by the outstanding evidence (which it is), it’s not a particularly legitimate conclusion either.
To give another example, the Warren Commission stipulated the conclusion
Oswald killed Tippit
as evidence supposedly justifying their argument that Oswald killed Kennedy (see WR 20), but since Oswald had never been tried for that crime, that conclusion had not been proven, and therefore could not possibly be legitimately used as evidence.
Evidence which violates the laws of physics
As a final example of evidence which automatically demonstrates what is at times an utter lack of credibility, you can find no finer example than evidence which violates the laws of physics. If, for example, we shoot a bullet into the bone of a human skeleton 500 times, and it comes out deformed every time, then a bullet entered into evidence with no deformity — with the simultaneous claim that it was shot into a human bone — is
automatically
suspect
due to the fact that it seemingly contradicts the laws of physics.
One point that should be noted at this stage is that these criteria of
comprehensive
and
credible
evidence do not necessarily exist independently, but in fact can be combined and contrasted with other criteria to magnify their significance.
Let us imagine there is a jurisdiction shown to have an uncalibrated radar gun (no big leap of the imagination here). Suppose in our defense of a client for speeding we ask that jurisdiction for statistics related to arrests for speeding, which they initially resist producing. Suppose that when they
do
eventually produce the statistics, we find the statistics show
far more people
have been arrested for speeding in that jurisdiction than would be expected based on state averages. It is not implausible to expect that the same jurisdiction that could have had an increase in arrests due to a
failure to calibrate
its radar guns (
credibility
) would likewise
suppress the evidence
of this failure (
comprehensiveness
).