Reclaiming History (328 page)

The defense decided not to put Ruby on the stand, a very common defense strategy to avoid cross-examination of the defendant by the prosecution. But what was the fear here? As Belli tells it, Ruby not only told him he didn’t want to testify because “I’ll go all to pieces,” but also said the opposite to him: “I just went in and shot him…Maybe I ought to…get on the stand and tell the truth.” But Belli believed that Ruby’s blunt assertion about his state of mind (“I just went in and shot him”) was actually not the truth, that Ruby had merely made it up
after
he came out of his unconscious, psychomotor epileptic seizure at the time of the shooting to fill in the blanks of his amnesia (in psychiatry, called “confabulation”), had come to believe it himself, and on the witness stand would blurt out enough incriminating statements to bury himself.
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When Belli rested his case, he had put on an extremely anemic defense, particularly in view of the fact that in Texas the defense had the burden of proving that Ruby was insane by a preponderance of the evidence.
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*
Virtually everyone in our society knows that in a criminal case in America, the prosecution, not the defendant, has the burden of proof. But because of the almost unique circumstances of this case in which Ruby’s killing of Oswald was televised, coupled with the fact that the defense, by its apparent sole reliance on the insanity defense, was not forcing the prosecution to prove that the killing did not result from a “sudden passion,” for all intents and purposes it was the defendant, Ruby, who had the
only
legal burden of proof at the trial. True, the prosecution had to prove beyond a reasonable doubt that Ruby intentionally killed Oswald without any justification in law, but an estimated eighty million people saw Ruby kill Oswald, and it was an intentional act without any legal justification. The only real legal burden, then, was the defense’s burden to prove, by a preponderance of the evidence (substantially lower than beyond a reasonable doubt, but still a burden), that Ruby was insane at the time he shot Oswald.
Only
if Ruby met that burden was he entitled to a not-guilty verdict. Because of the defense put on by Belli, in this case there couldn’t possibly be any failure of proof by the prosecution that would entitle Ruby to the same not-guilty verdict.

In rebuttal, among other medical experts, the prosecution called Dr. Sheff Olinger, a Dallas neurologist, to testify that although Ruby’s EEG brain waves were “unusual,” they did not show organic brain damage, the “disease of the mind” required under the M’Naughten test of insanity, nor was he subject to psychomotor epileptic seizures.
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The noted neurologist Dr. Frederic Gibbs, who had taught Olinger’s teacher, disagreed with Olinger, testifying on surrebuttal for the defense that “it was clear” from Ruby’s EEG tracings that Ruby “had a particular, very rare type of epilepsy” that “occurs in only one-half percent of epileptics” and frequently results in a “lack of emotional control, convulsive and excessive types of behavior.”
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†

Welcome to the world of forensic experts. They can’t agree on the time of day, and almost invariably (there are refreshing exceptions) testify during their career as either defense or prosecution experts, but not both. For this reason, when I prosecuted cases I always searched for forensic witnesses with a more balanced history. I didn’t want the opposing attorney, during cross-examination of my experts, to ask the question I asked of his experts to destroy their credibility:

“Doctor, how many times have you testified as an expert in your specialty of forensic psychiatry?”

“Oh, maybe 100, 125 times.”

“Doctor, in those 100 or 125 times, did you ever once testify for the prosecution? [long pause] I don’t believe so, counselor.”

The final arguments to the jury were very brief for a murder case of this importance, but the four prosecutors and three defense attorneys agreed on two and a half hours for each side. Curiously, instead of doing what was logical and normal, particularly in a big case—having the arguments start in the morning, or early afternoon, with everyone fresh—Judge Brown overruled Belli’s objections and ordered that they commence after the regular court day on Friday evening, March 13, 1964. They didn’t conclude until 1:05 Saturday morning, the jury stifling yawns throughout the five hours.
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Alexander opened for the prosecution. Treating the defense’s medical case dismissively(e.g., Dr. Schafer, the defense psychologist, “thinks he can diagnose anything with ink spots,” and referring to Ruby’s defense as “this epilepsy business”), he made the telling point that if Ruby, indeed, was an epileptic, then why didn’t the defense present any evidence during the trial through testimony of his family and people close to Ruby of prior epileptic spells? He told the jury that what was involved here was nothing more than that “Jack Ruby misjudged public temperament. He thought that he could kill Oswald, that perhaps he would be a hero by doing it
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…[He] wanted to become famous and make money out of the act…I tell you that he is nothing but a thrill killer seeking notoriety.” In other words, Ruby was just a nobody trying to become a somebody. Alexander asked the jury to return a verdict of death against Ruby not just because he murdered Oswald “but because he has mocked American justice while the spotlight of the world is on us.” Alexander argued that Oswald “was entitled to the protection of the law until the law chose no longer to protect him and punish him.”
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Though Belli’s psychomotor epilepsy defense had imploded through the testimony of his
own
expert witnesses, in his summation he refused to retreat, literally becoming his own expert for the proposition that Ruby should be found not guilty by reason of insanity because Ruby’s EEG tracings proved it. The king of torts was forced to rely on his pet—demonstrative evidence—but not, as in most of his civil cases, to fortify his case. It now was his whole case. Ruby would live or die on it. “Ladies and gentlemen of the jury,” Belli argued, “finally we showed you the actual tracings themselves…and you yourselves saw those five-to-a-second waves and notched tracings,” and he said his esteemed experts had concluded that the tracings clearly showed “organic brain damage” and “the psychomotor variant type of epilepsy.” But Belli did not go on to say, because he could not, that his experts said Ruby was
in
an epileptic state when he shot Oswald.

From this focused but fatally defective argument, Belli went on to ramble discursively on a range of different, disconnected arguments that had no basis in law. An eloquent orator, he was reduced to actually arguing to the jury that since under Texas law (as opposed to any other state) it was excusable homicide (not, as in other states, manslaughter) to kill your wife or her paramour if you caught them in flagrante delicto, “then is there not [such an] excuse for the shooting of the assassin of my President?” He went on to analogize Ruby to the “village clown, the village idiot,” an indirect way, apparently, of seeking sympathy and mercy for his client.
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That’s really all Belli had left in his arsenal, and when DA Henry Wade, in the prosecution’s final summation, said, “I ask you, ladies and gentlemen of the jury, to show Jack Ruby the same mercy and the same compassion and the same sympathy that he showed Lee Harvey Oswald, [and] if you do that you can vote only one verdict, that of guilty of murder
with
malice and of death,”
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*
on March 14, the jury, after only two hours and nineteen minutes of deliberation, agreed, rejecting Belli’s insanity defense and finding Ruby “guilty of murder with malice” and assessing “his punishment at death.”
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Though the trial was not televised, millions of Americans viewed the reading of the jury’s verdict on live national television. As soon as Judge Brown read the verdict, Belli jumped to his feet and began a denunciation of the twelve members of the jury, all white Protestants, who had condemned Ruby to the electric chair. Pointing to the jury box he cried out, “May I thank this jury for a verdict that is a victory for bigotry.” As the jurors began filing out of the courtroom, he shouted at them, “I want to assure you we will appeal this to a court where there is justice and impartiality.” Surrounded by the media in the courtroom, Belli first unloaded on the jury, saying it had made Dallas “a city of shame forevermore” by a verdict that was “the biggest disgrace in the history of American law.” He also had a few kind words for Judge Brown, saying, “This was a kangaroo railroading court…and everyone knew it. Judge Brown went down the line for every motion the District Attorney made. He committed 30 errors.”
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Bursting out of the courtroom, Belli delivered perhaps an even more serious tirade to the media. “This jury wasn’t concerned even with listening to us in arguments. They had their minds made up,” he said. When a reporter asked Belli to repeat his accusation, Belli said, “Repeat this? I’ll repeat this with every breath I have in me for as long as I live. And I’ll stop practicing law if we don’t reverse this [verdict on appeal] and make these people of Dallas ashamed of themselves.”
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Shortly thereafter, Belli told a reporter for ABC radio, “I’ve reassessed my feelings about Dallas. I think that it’s sicker than I originally felt when I came here—those horrible, bigoted, little, narrow, nasty people that sat in judgment of this ‘Jew boy.’ I hope to get back to New York and stand in Times Square and see some free Jews, niggers, if you will [Belli was not racist in the least], and some Puerto Ricans, and some dagos, and Chinese, some free Americans walk by and take ’em by the hand and say ‘Thank God, I’m back in America and out of Dallas.’”
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The trial, excluding the selection of the jury, had only lasted a little over eight court days! The sentence of death stunned the national and international press corps. Several polls of reporters showed them predicting a long prison sentence.
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Even the judge was “shocked” by the sentence of death.
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“After all,” Judge Brown said, “we are talking about a man who killed the man who assassinated President Kennedy.”
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In fact, if there is one thing that stands out in people’s minds more than anything else about the Ruby trial, it’s that he was sentenced to death.
New York Times
reporter Jack Langguth was in Dallas at the time of the verdict and felt he knew the pulse of the city enough to say that “the people of Dallas did not want Jack Ruby back among them boasting of his crime and acquittal. Neither did they want him sentenced to death.” The editor of the
Dallas Times Herald
, A. C. Greene, told Langguth, “This verdict [of death] was almost as shocking to everyone as Ruby’s own shooting had been.” Upstairs in the courthouse after the verdict, one sheriff’s deputy turned to another and remarked, “Too strong.” The other deputy raised an eyebrow. “Prison would have been better. This won’t stand up.”
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Most students of the Ruby case are likewise troubled by the sentence, wondering why the jury gave Ruby the ultimate punishment. Even without Belli arguing murder without malice to them, and even with their finding that Ruby killed Oswald
with
malice, the jury still could have given Ruby a sentence of life or any number of years more than two. In the perceptive book
Jack Ruby
, the coauthors write, “Men hesitate when asked to put a human being to death. But this jury had seen Ruby gradually exanimated [become lifeless] before their eyes, turned into a thing; and things are easily disposed of.”
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For his part, Belli says that the jury, by their verdict, fulfilled their duty by making Ruby “the scapegoat for the unpunishable guilt of a community.” But how and why did the jury feel this was their duty? Belli, in so many words, blamed the Dallas “oligarchy,” embodied in the Dallas Citizens Council, for the jury verdict. According to
U.S. News & World Report
, the Dallas Citizens Council consisted at the time of about 250 men who were chief executive officers of important companies in Dallas. “Membership is by invitation only,” the magazine said, and it’s “the group that really runs Dallas.” Author William Manchester, who spent much time in Dallas doing research for his book,
The Death of a President
, wrote, “I had never seen a city so tightly held by so few. Boston, Baltimore and Philadelphia have their courtly establishments. Power there, however, is largely sham power. In Dallas, it is disquietingly real, naked, arrogant. There is something almost Teutonic about Big D’s materialism, its deference to the men of sinew.”

Formed in 1937 by Dallas banker Bob Thornton (after whom a Dallas expressway is named), the Dallas Citizens Council is largely credited with making Dallas a booming metropolis of gleaming skyscrapers and a center of commerce that, in 1963, added more office space than any other American city except New York. Most Dallasites are proud of their business-like, cosmopolitan image. The “Big D” (as Texans call Dallas) is markedly different from smaller and unhurried Fort Worth, “the old cow town” just thirty miles down the road to its west, where cowboy boots and Stetson hats are still very common attire for men, and the presence of stockyards contributes to the feeling of frontier days. Belli argued that on any issue affecting the modern image of Dallas as a civilized, though admittedly right-wing conservative community, the Citizens Council went to work manipulating community opinion to its liking—not an irrational accusation, and one that probably holds true to this very day in a few cities around the country. Belli maintained that since the assassination had seriously blackened the image of Dallas, “prompt execution of Ruby would serve somehow to restore that image and show what a law-abiding place the city was…The Dallas oligarchy had its own orders for the get-Ruby campaign,” Belli says, adding they “desperately wanted to convict Ruby.” Although Belli’s allegation may or may not be true, where he falls down is failing to come up with any evidence, direct or circumstantial, to show
what specifically
the Dallas civic leaders in this case did to help ensure that the jury (which Belli referred to as the “establishment” jury and “an entirely WASP jury eager to do its Dallas duty”) returned the verdict they wanted. He maintains that the coverage of the Ruby case by the
Dallas Morning News
, the paper of record in Dallas, reflected “the attitude of the Dallas oligarchy,” but again he doesn’t show in what way.
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