Reclaiming History

by Vincent Bugliosi

Howard believed that such a simple approach coupled with an expressed plea by Ruby for mercy from the witness stand, as well as the unstated sense of many to “pin a medal on Jack” for killing Oswald, might result in a favorable verdict and light sentence, as opposed to the death penalty. There was some logic behind this thinking. After all, newspaper polls in Dallas taken after Ruby killed Oswald showed, remarkably, that nearly half of the people questioned felt that Ruby should receive no punishment at all.5 It’s an old joke about Texas murder trials that the first matter to be settled is whether the varmint who got himself killed damn well deserved what he got. Legend has it that the first question sheriffs investigating a homicide in rural Texas ask is, “Did he need killing?” Indeed, Ruby received hundreds of supportive letters and telegrams (and very few critical of him) from people not just in Texas but all over the world. A sampling from some of the telegrams: “Congratulations. You have done what every loyal American citizen would like to have done. God bless you.” “Heartiest congratulations, but [Oswald] died too fast.” “Thank you for doing what every freedom-loving citizen of the world wanted to do.” “Congratulations. May God bless you.” “Thank you. May the Lord and Texas justice have mercy on you. May you live to be a thousand.” “Our family cannot find in our hearts to censure you. We send you our love and support.” “Had I the guts I’d have done it.* Thanks for trying to vindicate Dallas.” “To a job well done. You are a great man, Jack Ruby.” “Congratulations, you deserve a medal, all the world is in back of you.” “Thank you sir. God bless you.” “I kiss your feet.”6 In other words, Howard’s reasoning apparently went, how bad could the jury consider Ruby’s act to be when he had simply done to Oswald what a great number of other Americans wanted to do and which the state of Texas would have eventually done anyway? Indeed, even the wife of U.S. Supreme Court Justice William O. Douglas acknowledged to an interviewer that she had shouted, “Good! Give it to him again!” when she saw Ruby shoot Oswald on her television screen.7

  So Howard wasn’t overly worried about the case, even if Jack was hardly the ideal defendant—a Jewish striptease joint operator in a very conservative, overwhelmingly Anglo-Saxon Protestant city who had also made the Dallas police, and Dallas, a city noted for its civic pride, look bad. But again, Jack shot down the most loathed man in America, and that had to count for something in court, Howard reasoned.

  This strategy changed when Ruby’s family, not feeling Howard had enough stature and legal talent for a case this big, brought famed San Francisco lawyer Melvin Belli into the case on December 10, 1963.† Though he was often described as “flamboyant,”‡ there was considerable substance behind the sheen. Known as the “king of torts” (torts are civil not criminal wrongs), Belli* had actually sown new ground in the area of tort law with his skill at using “demonstrative evidence” (evidence that addresses the physical senses of the jury, such as a model of a human skeleton, scale mock-ups of an accident scene, greatly enlarged photographs, live experiments, and so on)† as a plaintiff’s lawyer in personal injury cases, and for the record-breaking monetary awards juries were returning for his clients. The problem is that he was primarily a civil not a criminal lawyer, although he had tried, and continued to try after the Ruby case, a criminal case now and then that caught his fancy. Belli, then, was a legal heavyweight, but not in criminal law, and he demonstrated this in several ways, which are chronicled in the major books on the trial. As the trial judge, Joe Brown, would later write, “Belli undoubtedly was, as the newspapers called him, the king of torts, but at trying a criminal case in Texas, he wasn’t even royalty.”8 Lead Ruby prosecutor Bill Alexander, who had an acerbic relationship with Belli during the trial, acknowledged to me that “Belli was probably a better lawyer in his field than we were in ours, but he was in the wrong ballpark.”9

  Wanting a Texas lawyer at his side, Belli brought in Joe Tonahill, a colorful and towering trial lawyer from Jasper in East Texas whose homespun style had proved effective with country juries, along with a Los Angeles associate of Belli’s, Sam Brody. Phil Burleson, a young Dallas lawyer with appellate experience, was hired to primarily handle legal briefs and research. Howard was consigned to the bleachers, looking on, and shortly thereafter resigned from the defense team.

  Surprisingly, for a lawyer of Belli’s intelligence and experience, he did nothing to endear himself to the Dallas citizenry, a microcosm of which he would eventually have to rely on for a fair trial for his client. Noted for his flashy but expensive sartorial splendor, he declined to change his attire one lick, including his customary vested suits with silk linings, his rich pastel shirts and ties, and a gold watch chain, items just not seen among Dallas men with their off-the-rack attire. Indeed, his fur-collared Chesterfield overcoat and red velvet briefcase may have been unique among lawyers anywhere in the Panhandle State. And his pronouncements to the local and national media, who followed him like faithful puppies wherever he took himself in Dallas, including restaurants, was confrontational. “He repeatedly criticized the state of Texas. He lectured about Dallas’ need to make Ruby a sacrificial goat…‘The people of Dallas,’ he told the press, ‘perhaps unconsciously have to have a sacrifice in order to cleanse themselves.’”10 But if Belli intended to put the city of Dallas itself on trial, he had to expect its citizens not to like this, with whatever way that feeling played out.

  One might think that Belli would at least have tried to get Dallas’s legal community on his side, but he alienated it too when he arrived in Dallas by characterizing members of the district attorney’s staff as “yokels.”11 If someone wanted to hide anything from Alexander and Wade, he joked, put it in a law book and they’d never find it.12

  At a change-of-venue hearing on February 10–13, 1964, during which Belli presented forty-one witnesses in support of his motion to move the trial out of Dallas because Ruby could not get “a fair trial” there, he argued that because many blamed the city for the assassination taking place there, and for negligently allowing the shooting of Oswald to occur, Dallas itself was on trial, and in effect, the jury might have to convict Ruby to acquit the city. There can be little question that Belli’s concern was not a frivolous one. There was a collective sense of guilt among the citizenry, mostly about Kennedy being killed there, that continued for years thereafter. Just a day after the assassination, remarks like this were being made by Dallas citizens: “Dallas can’t hold its head up this morning.” “I think Dallas died right with [the president]. We’re the ones that are going to suffer. History will never erase it.” A cabby, when learning that his passengers were from New York, said, “New York? Are you here to take pictures of our black-eye?” Ruby himself told his sister, Eileen Kaminsky, on the afternoon of the assassination, “What a black mark for Dallas.”

  The feeling was so prevalent that Dallas’s mayor, Earle Cabell, felt moved to say in defense, “There are maniacs all over the world, and in every city of the world. This was a maniac. It could have happened in Podunk as well as Dallas.”13 But apart from Oswald’s action severely damaging Dallas, Cabell testified for the defense at the venue hearing that Ruby couldn’t get a fair trial in Dallas because what Ruby did had further hurt the city very badly. Ruby’s lawyer Joe Tonahill said that prior to Cabell’s statement on the witness stand, Ruby was upbeat about his chances, but what Cabell said affected Ruby deeply. “Why, I love this city, Joe,” he said to Tonahill. Cabell told the Warren Commission that he had known Ruby “for several years.” Jack had a habit of taking people up to Cabell at public functions and introducing them to him as “my friend, the Mayor.” Now, for the first time, Jack was hearing from his “friend,” the head of the city, the essentially official word that he was no hero, but someone who had disgraced Dallas, and Tonahill said Cabell’s words hit Ruby “like a ton of bricks.”14

  In the venue hearing, the prosecution never called one opposing witness to the stand, instead filing with the court thirty-eight affidavits from Dallas citizens swearing under oath that Ruby could get a fair
trial in the city. On February 14, Judge Brown did not grant the defense motion, but he did not deny it either, postponing his decision until a jury was selected, at which time he’d decide whether that jury could give Ruby a fair trial.15

  Under Belli’s direction, the defense team decided to come up with an “imaginative” defense. Almost out of hand, Belli rejected Howard’s “murder without malice” strategy and decided on a scientific and sophisticated medical defense of temporary insanity, with psychiatric experts testifying for the defense. In other words, he didn’t want to settle for anything less than an acquittal, a verdict of not guilty based on Ruby’s insanity at the time of the shooting. Ruby entered a plea of “not guilty” to the murder indictment against him, not “not guilty by reason of insanity,”16 for the simple reason that there was no such plea in Texas, as there is in most states, and there still isn’t to this very day. However, even in Texas the defense can put on an affirmative insanity defense to the charges against the accused, and the Texas Penal Code provides that “no act done in a state of insanity can be punished as an offense.” The question would not be whether Ruby unlawfully killed Oswald—there were eighty million eyewitnesses* to affirm that proposition—but what was on Ruby’s mind, if anything, at the time he did so. Bob Huffaker, who covered the Ruby trial for Dallas’s CBS affiliate, KRLD, wrote that Ruby “had failed to envision actually being charged with murder for what he had conceived as an act of patriotism. Ruby had fancied himself a hero, and he was deflated when the King of Torts hired specialists to sully his righteousness with hints of mental problems.”17

  Texas utilizes the main rule for insanity in the nation, the M’Naughten “right-wrong” test (stemming from the 1843 English case of the Queen v. Daniel M’Naughten), which provides that a defendant is not criminally responsible for his act and is legally insane if at the time of the act he was laboring “under such a defect of reason from a disease of the mind as not to know the nature and quality [interpreted as meaning “consequences”] of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong.” The seminal question for Belli was, what “disease of the mind” did Ruby have that caused him not to know that what he did was wrong? Belli had Ruby examined by psychiatrists, psychologists, and neurologists in late December at the Dallas county jail. The psychologist, Dr. Roy Schafer from Yale University, told Belli in his January 7, 1964, report that a battery of tests on Ruby indicated “the presence of brain dysfunction on a physical basis [i.e., Ruby had organic brain damage, satisfying the “disease of the mind” requirement of M’Naughten if it could be connected up with his act of killing Oswald]…His test responses are very similar…to those obtained from patients who have psychomotor seizures…[and] could also be those of a person with a history of traumatic head injuries or encephalitis.” Schafer recommended an electroencephalographic (EEG) test, which measures fluctuations in the electrical activity of the brain, and a neurological examination.18

  The EEG and neurological findings of Dr. Martin Towler of Dallas were that Ruby was “suffering from a seizure disorder [that] most accurately falls into the category of a Psychomotor Variant.” Dr. Frederic Gibbs, a Chicago neurologist who was considered to be the leading pioneer in the science of electroencephalography, reviewed Towler’s EEG recordings, agreed with Towler, and said that Ruby’s brain waves were “common in epileptics.” When a psychiatrist, Dr. Walter Bromberg, concluded that at the time Ruby shot Oswald he was acting in a “fugue” state or temporary blackout triggered by depression and rage, Belli had all the elements (or so he thought) of a successful medical defense virtually unheard of at the time—that when Ruby shot Oswald he was in the throes of a psychomotor epileptic seizure, a condition manifested by periods, usually transitory, in which a person, functioning only on learned reflexes, does not act like himself, sometimes engaging in agressive aberrational behavior, and thereafter cannot remember what he did.*

  It should be noted that in the vast majority of M’Naughten insanity defenses, defense attorneys do not contend that their client didn’t know what he was doing, only that he didn’t know it was wrong. Here, Belli was going to contend that Ruby was unaware of what he was doing (did not know “the nature and quality” of his act), which of course delivers one to the same destination—that is, you can’t know what you did was wrong when you don’t even know you did it.

  Jury selection commenced on February 17, 1964, and after fourteen days in which 162 prospective jurors out of a potential jury pool of 900 were questioned, both sides finally agreed on 12. The all-white jury consisted of eight men and four women. Eleven of the twelve had seen the television footage of Ruby shooting Oswald. The jury was sequestered throughout the trial, each living in a small, windowless room above the county jail. Like all sequestered juries, they were insulated from outside news about the case. The only things on TV they could watch were movies and situation comedies. They could read newspapers and magazines only after they had been heavily censored. “Bo [the court bailiff] really cut up our newspapers tonight,” one juror complained in his diary. “I told him if he starts cutting out Ann Landers, I’ll go home.”19

  After Judge Brown denied the defense motion for a change of venue, the trial of the man who killed the man who killed Kennedy, started on March 4, 1964, with 370 reporters from fourteen countries, representing 111 news organizations, in attendance. The trial had been transferred from Judge Brown’s regular forty-eight-seat courtroom to the much larger (ninety-four-seat) courtroom of a fellow judge, Frank Wilson, to help accommodate the press. Only a few seats were left for the general public.20 The three networks asked Brown to let them televise the trial, and the publicity-loving Brown was all in favor of it. But the opposition came from many sources, including fellow judges, Dallas civic leaders, and the prosecutors. Still, Brown was inclined to let the cameras in. When a strongly worded statement released by the Board of Governors of the American Bar Association, which opposed and “deplored” the proposal to televise the trial, arrived on his desk,21 Brown, who had hired Sam Bloom, the head of a Dallas advertising firm, to be his press adviser, reportedly said to Bloom, who had joined in the opposition, “But Sam, couldn’t you give me just one camera?” Bloom shook his head no, and the trial wasn’t televised—to everyone’s relief except Belli, who, like Brown, wanted the trial televised.22*

  Though Brown was pressured out of televising the trial (“We had a terrible time talking him out of that,” a member of the Dallas power structure would recall), that didn’t stop the limelight-seeking judge from allowing TV cameras into his home to film him on his sickbed when the flu kept him off the bench one day during the trial.23

  The heart of the trial was the legitimacy, or lack thereof, of Belli’s defense for Ruby that he didn’t really know what he was doing when he shot Oswald. Ruby, of course, knew exactly what he was doing, and it had nothing to do with any hocus-pocus psychomotor epileptic seizure. But Ruby had long since become a pathetic,* bewildered, humiliated (by courtroom allegations he was crazy, had hurt Dallas and the nation, was possibly a latent homosexual, etc.), almost anonymous bystander to the trial proceedings, having turned over his defense to his high-powered attorneys. It was becoming obvious to many early on that just as his hero, JFK, was “dead in the center of his parade,” and Oswald “dead in the center of his custodians,” Ruby, chewing gum at the defense table in as serious a concentration as he was capable of, was “dead in the center” of his trial.24 And Ruby seemed to know, even before the trial started, how the little “class” he had always sought, but never achieved, in his dealings with the outside world would be irrevocably shorn away by his lawyers, who would portray him as someone who belonged in a mental institution. A Dallas artist sketching his courtroom portrait during pretrial hearings was asked by Ruby to not make the sketch “too rough” on him. “Leave me a little dignity,” he importuned the artist.25 Ruby’s prosecutor, Bill Alexander, would later say, “You could see Jack go down day by day during the trial
. Belli was doing exactly the opposite of what he wanted. Jack knew that he was going to be found guilty of something. He didn’t mind being found guilty of killing Oswald because Oswald killed the President, but he didn’t want anybody to think that he was retarded, or mentally handicapped, or an insane person. Whatever else you can say about him, Jack had a lot of pride.”26

  The Ruby trial took place on the second floor of the Dallas Criminal Courts Building in an old-fashioned courtroom with high ceiling fans, wooden benches, and spittoons next to each of the two counsel tables as well as the judge’s chair. During the prosecution’s case, it put on police witnesses who had spoken to Ruby after the shooting and who testified, in refutation of the defense theory, that Ruby had said things like “I hope I killed the son-of-a-bitch,” “I intended to shoot him three times,” and “Someone had to do it, you guys [Dallas police] couldn’t.”27 Most damaging of all was the testimony of one officer, Sergeant Patrick Dean, that in response to questioning commencing around ten minutes after the shooting of Oswald, Ruby said he “first thought” he’d kill Oswald “if he got a chance” when he saw him two nights earlier in the show-up room and he “noticed the sarcastic sneer on Oswald’s face.” Ruby added that he “wanted the world to know that Jews do have guts.”28

  All of Ruby’s remarks were irreconcilable with the “fugue” state, temporary insanity defense Belli was propounding. And Ruby’s statement that he first thought of killing Oswald on Friday, two days earlier, showed premeditation and conflicted with the defense position that the shooting was a spur-of-the-moment act. Even though the defense, at the moment, was seeking a not-guilty verdict under the insanity defense, it still had available, as a fallback position, a verdict of murder without malice. Dean’s testimony, if believed, showed that Ruby premeditated the murder, helping to preclude any defense argument that the killing was without malice, which required that the killing result from a “sudden passion.” District Attorney Wade would later say that Dean’s testimony about premeditation “was probably the most harmful” testimony of all to Ruby’s defense at the murder trial.29*