Oswald’s Conviction by the Press

Mark Lane:
Oswald Innocent? A Lawyer’s Brief

An affirmative case

Under our system of justice a defendant need not prove he is innocent. It is the obligation of the prosecutor to attempt to prove the defendant guilty beyond a reasonable doubt. Should the prosecutor fail to sustain that burden, the defendant must be declared not guilty.

In the case of Oswald, hysteria and intolerance have so swept our country that the protections guaranteed by our Constitution and by our traditions have failed to operate. Since irrationality is the implacable foe of justice and due process, we are compelled to depart from ordinary legal procedure. At this point we shall submit an affirmative case. We shall attempt to present facts that tend to prove that Oswald did not shoot President Kennedy.

A denial by a defendant that he committed a crime when supported by testimony as to his good character is sufficient in and of itself to cause a reasonable doubt which, even in the face of evidence to the contrary, may result in acquittal.

Oswald denied he shot anyone. He stated that the charges against him were “ridiculous.” He persisted in his denial despite the fact that he was questioned for 48 hours without the benefit of counsel.

Denial of counsel, when coupled with extensive questioning, is improper and contrary to long–established principles of law. This principle was developed out of revulsion against the ancient trial by ordeal or trial by fire which forced a person accused to a crime to cooperate in the prosecution of his own case. Great constitutional protections, including the Fifth Amendment to the U.S. Constitution, were developed. It was found that not only would guilty persons confess when sufficient pressure was placed against them, but innocent persons also were likely to succumb.

Great pressure was placed against Oswald. He stood all alone condemned as the slayer of a popular leader. “Oswald was pummeled by the arresting officers until his face was puffed and battered. ‘Kill the President will you?’ one officer shouted in a choked voice.” (Washington Post, Dec. 1.)

In addition “Oswald received a black eye and a cut on his forehead.” (New York Times, Nov. 24.)

When a reporter asked Oswald in a televised interview how he received the bruises and cuts on his face, he answered calmly, “A policeman hit me.”

For 48 hours, Oswald was denied the elementary right to counsel of his choice. The Dallas police falsely told the attorneys for the ACLU that Oswald “did not want counsel.” Despite physical abuse and absolute isolation, Oswald continued to state that he was innocent. Each previous assassin of an American president immediately and boastfully declared that the act was his.

Character witnesses

The press has been glutted with attacks upon Oswald since his death, with each informant issuing self–serving declarations as to his own ability to detect incipient mental problems or character weaknesses, when Oswald was much younger.

A former probation officer in New York City permitted an interview which violated principles of a privileged and protected relationship between himself and a young boy. A justice of the Family Court released records to the FBI, and the information was carried in the press.

Nevertheless, those who knew Oswald a little better had some rather kind things to say about him. At a trial, their testimony could have been decisive. The associate pastor of First Unitarian Church, Dallas, Rev. Byrd Helligas, described Lee Oswald as “erudite.” “He had a good vocabulary. No dangling participles or split infinitives. In the dictionary definition of the word ‘intellectual’ he was an intellectual.” Helligas added that he sensed “no frustration through erudition. He was calm.” (Washington Post, Dec. 1).

Samuel Ballen, described in the press as a “Republican petroleum economist in Dallas,” said he found Lee Oswald to be “an independent, thinking, inquiring young man … He was a rather frail person physically. At least to me, he was the kind of person I could like. I kind of took a liking to him, I wanted to help him a little bit … He had a kind of Ghandi, far–off look about him.” (Washington Post, Dec. 1.)

Roy Truly, the director of the depository where Oswald was employed, said of Oswald, “He seemed just a normal, quiet young fellow.”

Mrs. Paine, with whom his wife and children lived and where he stayed on weekends, said, “Marina (Lee Oswald’s wife) felt very favorably toward the President and his family. Most of what she learned of American news was provided by Lee, who translated from newspapers and news magazines. Marina said he never transferred any negative feelings toward President Kennedy.” (Washington Post, Nov. 28.)

Mrs. Paine also stated that, “As far as I know Oswald had never been critical of Kennedy. He had been critical of General [Edwin] Walker, but I never heard him say anything against the President. In fact, it was my impression that he respected him” (New York World Telegram and Sun, Nov. 25.)

In 1959, Oswald was interviewed by Priscilla Johnson, an American correspondent while in Moscow. She reported, “I found him rather likeable. He was quiet and didn’t have a vehement manner. He was so very young. He was someone you would try to help.”

Mrs. Luella Merrett, principal of West Ridglea elementary school which Oswald attended, said, “If he had problems, we did not recognize them … He was interested in things.”

Were the case to be tried, persons ordinarily selected as character witnesses would include his employer, a minister, his landlady, a respected businessman, a correspondent who knew him abroad, the Quaker family with whom his wife resided and his school teachers. Judging by the initial response, one could conclude that character testimony for Lee Oswald would be compelling.

Time, place and Oswald

In addition to consistent denial of guilt by the defendant and statements of character witnesses that seem to indicate a person different from the disturbed, hostile character usually associated with the particular crime, a defendant may offer testimony indicating that he was somewhere other than at the scene of the crime when it was committed. We, of course, can’t get such information from this defendant.

However, a valid defense could result in showing that even if the defendant were at the scene he could not have committed the crime. Such a defense is available. If Oswald was on the sixth floor of the book depository armed with the alleged murder weapon, a 6.5mm Italian carbine, he could not have fired three shots that struck President Kennedy and Governor Connally.

The official homicide report filed by the Dallas Police Department attested to by two police officers, states under the section “Place of Occurrence”: “Elm Street (approximately 150 feet west of Houston).” The report also states under the section “Pronounced dead by Physician,” the name “Dr. Kemp Clark, 1 p.m., Parkland Hospital.”

A motion picture taken of the President just before, during and after the shooting, and demonstrated on television showed that the President was looking directly ahead when the first shot, which entered his throat, was fired. A series of still pictures taken from the motion picture and published in Life magazine on Nov. 29 show exactly the same situation. The Life pictures also reveal that the car carrying the President was well past the turn from Houston St. and a considerable distance past the depository building. The Life estimate in an accompanying caption states that the car with the President was 75 yards past the sixth–floor window when the first shot was fired.

The New York Times (Nov. 27) reported: “Dr. Kemp Clark, who pronounced Mr. Kennedy dead, said one [bullet] struck him at about the necktie knot. ‘It ranged downward in his chest and did not exit’, the surgeon said. The second he called a ‘tangential wound’, caused by a bullet that struck the ‘right back of his head’.”

The New York Herald Tribune (Nov. 27) said: “On the basis of accumulated data, investigators have concluded that the first shot, fired as the Presidential car was approaching, struck the President in the neck just above the knot of his necktie, then ranged downward into his body.”

Surgeons who attended the President at the Parkland Memorial Hospital described the throat wound as “an entrance wound” (St. Louis Post–Dispatch, Dec. 1), “They said it was in the center of the front, just below the Adam’s apple, at about the necktie knot.” (Ibid.) Dr. Malcolm Perry began to cut an air passage in the President’s throat in a effort to restore an air passage and start his breathing. The incision was made through the bullet wound, since it was in the normal place for the operation. “Dr. Perry described the bullet hole as an entrance wound.” (Ibid.) Dr. Robert N. McClelland, one of three surgeons who participated in the operation, said “It certainly did look like an entrance wound.” (Ibid.) Dr. McClelland said he saw bullet wounds every day, “sometimes several a day. This did appear to be an entrance wound.” (Ibid.)

On Nov. 27, the Secret Service re–enacted the assassination of the President. “The purpose was ‘to test whether it could be done the way we believe it was done’ an official source said.” (New York Times, Nov. 28.) The consensus was “that the shooting began after the President’s car had made the turn from Houston Street into Elm Street.” (New York Times, Nov. 28.)

If the throat wound resulted from a shot fired from the book depository the President would have had to turn around with his throat facing almost directly to the rear. Dr. McClelland stated that the doctors postulated that “he [the President] would have had to be looking almost completely to the rear.” (St. Louis Post–Dispatch, Dec. 1.) The Washington correspondent for the Post–Dispatch stated that, “The motion pictures, however, showed the President looking forward.” (Dec. 1.) “Mrs. John Connally, the wife of the Texas Governor, has said that she had just told Mr. Kennedy, ‘You can’t say Dallas isn’t friendly to you today.’ Presumably he was about to reply when he was hit.” (Ibid.) Mrs. Connally was seated in front of the President.

Relying, therefore, upon the Homicide Report filed with the Dallas Police by two officers who were eye–witnesses, the motion pictures taken of the shooting, still shots taken from the motion pictures, the statement of Gov. Connally, the consensus of those who re–enacted the scene under supervision of the Secret Service, and the report of the attending physicians, we may conclude that the shot was fired while the back of the President was to the sixth–floor window and many yards removed from the window and that the bullet entered the front of the President’s throat.

If Oswald was at the sixth–floor window, as alleged, when the President was shot it would have been physically impossible for him to have fired the first shot that struck the President. In the words or Richard Dudman, the correspondent for the Post–Dispatch (Dec. 1), “The question that suggests itself is: How could the President have been shot in the front from the back?”

A Lawyer’s Brief

Four weeks after the murders of President Kennedy and Lee Oswald, the National Guardian published an extended essay by Mark Lane, who pointed out that the existing evidence was not sufficient to have convicted Oswald at trial. Soon afterwards, the essay was expanded and published by the magazine as a pamphlet.

This Version

The National Guardian no longer exists, and copies of Lane’s pamphlet are now collectors’ items. The text has been available online for many years at http://karws.gso.uri.edu/jfk/. It is available here for the first time in correct HTML, and has been split into sections for ease of reading online.

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22 November 1963

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