Oswald’s Presumption of Innocence

Mark Lane:
Oswald Innocent? A Lawyer’s Brief

The gun and the experts

The question now arises as to whether any one man, even a skilled expert, could have fired the three shots within a period of five seconds. An Olympic rifle champion, Hubert Hammerer, said he doubted it could be done with the weapon allegedly used. The Dallas sheriff, Bill Decker, said he believed three shots “could be fired in less than 20 seconds.” (Washington Post, Nov. 27.) The FBI and the witnesses agree the elapsed period was five seconds, possibly five and one–half seconds.

Life magazine (Dec. 6) hired a skilled marksman, the director of the National Rifle Association, to fire a similar rifle. The best he could do was “three hits in 6.2 seconds.” The New York Times, Nov. 23 reported: “As marines go, Lee Harvey Oswald was not highly regarded as a rifleman.”

Debate will continue whether the rifle in question was capable, in the hands of an expert, of the performance the prosecution insists it gave. All agree, however, that such a remarkable display of shooting would be beyond the ability of any person less qualified. To maintain the ability to fire a rifle accurately, one must practice continually. Oswald’s wife and the Paine family, all of whom lived in the house where the rifle was allegedly stored, did not even know Oswald owned a rifle. This would seem to indicate an extremely limited usage of the rifle at the very most. Oswald did not have the requisite skill to fire three accurate shots within 5½ seconds at a moving target.

Other uncertainties

If Oswald was where the FBI and the Dallas District Attorney said he was when the shots were fired and if the President was assassinated by one person as charged … Lee Harvey Oswald is demonstrably not guilty. Oswald was in the wrong place and did not have sufficient time to shoot President Kennedy as charged.

The facts as presented to date by the FBI and the Dallas district attorney (soon to be rewritten no doubt) have overcome the presumption of guilt manufactured when the case was initiated.

Dudman wrote in the St. Louis Post–Dispatch (Dec. 1): “Another unexplained circumstance is a small hole in the windshield of the presidential limousine. This correspondent and one other man saw the hole, which resembled a bullet hole, as the automobile stood at the hospital emergency entrance while the President was being treated inside the building.

“The Secret Service kept possession of the automobile and flew it back to Washington. A spokesman for the agency rejected a request to inspect the vehicle here [Washington]. He declined to discuss any hole there might be in the windshield.”

Undoubtedly the Secret Service has placed the auto in protective custody, “in a secret place for its own protection.”

Dudman continued to present startling information. “Uncertainty surrounds the number of shots fired.” (Ibid.) Although most witnesses heard three shots fired within a period of five seconds it seems that five bullets have been discovered.

“The first bullet is said by the doctors to have entered the throat, coursed downward and remained in the President’s body. The second was extracted from Gov. Connally’s thigh. It had lodged there after entering the right side of his back, passing through his body and through his wrist. A third, which may be the one that struck the back of Mr. Kennedy’s head, was recovered from the stretcher on which he was carried into the hospital. A fourth was found in fragments in the car. Still another bullet was found by Dallas police officers after the shooting. It was in the grass opposite the point where the President was hit. They did not know whether it had anything to do with the shooting of the President and the Governor.” (Ibid.)

One point does emerge with absolute clarity. The theory held by the Dallas police and supported repeatedly by the FBI that “there is an airtight case against Oswald as the sole killer” is based upon an investigation so poor as to be incredible or an investigation devoted to a particular conclusion at the outset.

The investigation

The FBI, having completed its investigation, has submitted what amounts to its findings and conclusions as well. The verdict, deftly and covertly divulged to the press, and then blared forth throughout the world, is impressively simple: “Oswald is the assassin. He acted alone.” This remarkable law enforcement and investigatory agency, unable to solve a single one of the more than 40 Birmingham bombings, is now able to function as investigator, prosecutor, judge and jury. No other American agency has presumed to occupy so many position of trust at one time.

The essential problem is that no investigating agency can fairly evaluate the fruits of its own work. Were the FBI certain of its conclusions it seems likely it would not be so reluctant to permit witnesses to talk with the press. It might not feel the need continually to leak information favorable to its verdict to the press. Most disquieting of all, however, is that the FBI, once wedded to a conclusion conceived before investigation, might be motivated to discover evidence which supports that conclusion. Within a few hours after Oswald was arrested the Dallas police, with the FBI at its side, announced the very same verdict now reinforced by the latest FBI discoveries. Under such circumstances, we fear that evidence tending to prove Oswald innocent might be discarded and evidence proving him guilty might be developed out of proportion or even created.

The Justice Department has already privately expressed “disappointment” with the FBI report, fearing that it “has left too many questions unanswered.”

The stakes are big

The FBI investment in a Warren Commission finding identical with its own cannot be emphasized too boldly. Should the Warren Commission reach and publish a conclusion substantially different from the one submitted so publicly by the FBI, public confidence in the FBI would be so shaken as, in all likelihood, to render the FBI as it is now constituted almost absolutely useless. One can assume that the FBI wishes to avoid that result.

It may be argued on many different levels of governmental life that a finding by the commission that an American lynched in a Dallas courthouse might be innocent would result in the further destruction of the American image abroad.

It will be extremely difficult for any commission, in these circumstances, to bear the responsibility imposed upon it. For the sake of our country let us hope that Justice Earl Warren, a fair and great American, may successfully guide his commission through the sea of hatred and malice surrounding this case in its search for the truth.

An era of understanding

There are those who have said much good may come from this assassination, that a new era of understanding and unity may result. I doubt this. From hate comes hate. From murder — as we have already seen — murder. And from hysteria — rejection of the great Anglo–Saxon tradition of justice. But if it is possible to leave behind us the America of violence and malice, our national renaissance must begin with a respect for law and disdain for the hysteria that has thus far made fair consideration of this case impossible.

Our national conscience must reject the massive media conviction of Oswald — presumed to be innocent — and begin to examine and to analyze the evidence. We must recognize that the same reckless disregard for human life and decency that resulted in the death of our President resulted also in the death of Oswald while in police custody. And, before that, it resulted in the destruction of every right belonging to an American accused of a crime. The press, the radio and the television stations share that guilt.

The law enforcement officials, however, beginning with District Attorney Wade, who falsely stated evidence to the entire world repeatedly and who gave leadership to the development of a carnival atmosphere, must bear history’s harshest judgment.

You are the jury. You are the only jury that Lee Harvey Oswald will ever have.

A terrible crime has been committed. A young, vital and energetic leader of perhaps the world’s most powerful nation has been killed by the cowardly act of a hidden assassin. The murderer or murderers were motivated by diseased minds or by such depths of malice as to approach that state. We will perhaps never know their motives. We must, however, know and approve of our own conduct and our own motives.

We begin with a return to an old American tradition — the presumption of innocence. We begin with you.

Let those who would deny a fair consideration of the evidence to Oswald because of a rage inspired, they say, by their devotion to the late President, ponder this thought: If Oswald is innocent — and that is a possibility that cannot now be denied — then the assassin of President Kennedy remains at large.

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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