“He was a nervous guy,” Griffin said of his partner. “He was a chain-smoker who started the day with a cold Coca-Cola and drank Coke all day,” growing jittery from the caffeine. “He treated me with total respect,” Griffin said later. “I felt he put me on a pedestal, which is maybe why I thought he was naive.”
Hubert locked in a perception that he was not up to the job with a ponderous, awkwardly written memo to Rankin in February in which he asked that the commission compile a list of every person who crossed the border into the United States in the months before the assassination and everyone who had left the country in the weeks that followed—hundreds of thousands, if not millions, of names that would have to be checked, by hand, against lists of possible suspects. Hubert acknowledged that the move might be “totally impractical,” but “even if the job is not done, the final report must show that it was considered and must show why it was not done.” The memo dismayed Rankin and his deputies, who saw it as a needle-in-the-haystack request that would waste the commission’s time.
After the request was denied, Hubert wrote again to Rankin, urging that the full commission be made aware that the proposal for the massive name-check was suggested—and turned down. He defended the request again, arguing that the list might, in fact, turn up the name of an assassin. “A culprit would want to get out of the U.S.,” he said. He questioned whether “Americans not yet born” would accept the fact that the commission had not reviewed every bit of evidence that might point to a conspiracy, even if gathering the information was onerous.
In the case of Ruby, he warned, the available evidence did not allow for any firm conclusions about his motivations for killing Oswald, and the commission would be wrong to suggest otherwise. “The fact is that so far, the Ruby materials on hand are not sufficient either to exclude the possibility of a conspiracy or to warrant a conclusion that there was none.” In the weeks that followed, Hubert grew more bitter over the way he was being ignored, to the point where he began to consider resigning. “He was demoralized,” Griffin said.
20
THE OFFICES OF THE COMMISSION
WASHINGTON, DC
FEBRUARY 1964
In late February, the commissioners decided it was time for a face-to-face confrontation with Mark Lane, the New York lawyer who had emerged—seemingly from nowhere—as their biggest public critic. Warren was furious about Lane. The investigation was “plagued” by him, the chief justice said later. He found it difficult to believe that a previously obscure civil rights attorney and one-term New York state legislator had managed to turn himself into a national celebrity in just a matter of weeks, with what Warren believed were absurd claims about the assassination. Lane was taking advantage of the commission’s decision to conduct its hearings in private and limit its public statements, allowing Lane to make outlandish claims that the commission had little ability to correct. “Pure fabrication,” Warren said of the conspiracy theories spread by Lane. “Absolutely nothing to do with it.”
This was personal for Warren, since Lane was trying to convince the public that the chief justice was complicit in a conspiracy to hide the truth about the president’s murder, even to blame the assassination on an innocent man. Warren told friends he could not understand why respectable journalists gave any credibility to either Lane or his client, Marguerite Oswald. And yet there Lane and Mrs. Oswald were, day after day, on the front page of major newspapers, spreading their “outrageous” theories about the assassination. Lane was also becoming a celebrity in Europe: he was embraced by a number of left-wing intellectuals, including the British philosopher Bertrand Russell, who established a London-based group to support Lane’s work. (Russell’s group called itself The British “Who-Killed-Kennedy?” Committee, and its other members included the writer J. B. Priestley and Oxford historian Hugh Trevor Roper.)
Secretly, the commission became so worried about Lane that it began to have his movements followed closely by the FBI. The bureau had already begun conducting limited surveillance of Lane’s appearances around the country when, on February 26, Howard Willens prepared a memo that outlined the commission’s options in having the FBI step up the monitoring of Lane. Within days, apparently at the commission’s urging, the bureau’s surveillance operation was expanded. Through the winter and spring, Lane was trailed by the FBI almost everywhere he went in the United States. The bureau reported back regularly, often daily, about Lane’s whereabouts and the details of his attacks on the investigation.
In a separate memo in late February, Willens proposed that the commission also call Lane to Washington to testify. It would be a way of blunting Lane’s ability to argue, as he did regularly, that the commission was ignoring evidence that could vindicate Oswald. If Lane had evidence, he could present it to the commission directly. If he had nothing, that would be evident, too. “We are aware that Mr. Lane is making numerous speeches to the effect that he has information indicating that Lee Harvey Oswald is not the assassin of President Kennedy, and that the commission has not requested that information,” Willens wrote. In calling him in to testify, “I think we should make an explicit request for all documents possessed by Mr. Lane regarding the assassination.” The commission agreed, and the invitation to Lane went out.
* * *
Lane’s unofficial investigation of the Kennedy assassination had become his full-time job. He looked everywhere for witnesses or evidence pointing away from Oswald as Kennedy’s assassin. He had a road map in locating the witnesses from Dealey Plaza and from the scene of Tippit’s murder thanks to the stack of police witness statements from Hugh Aynesworth in Dallas.
One early victim of his methods was Helen Markham, the forty-seven-year-old Dallas waitress who said she had watched Oswald gun down Tippit and then identified Oswald in a police lineup. She appeared to have been the witness closest to the murder scene—only about fifty feet away. Lane telephoned Markham and, without telling her, tape-recorded the interview. When he was promised immunity from prosecution later that year in exchange for the tape, the recording would be seen by the commission’s staff as proof of Lane’s efforts to bully unsophisticated witnesses into saying things they did not believe.
According to a transcript of the phone call, Lane briefly introduced himself before launching into questions.
“Could you just give me a moment?” he asked Markham, claiming that he had heard from Dallas reporters that she had described Tippit’s killer as “short, stocky and had bushy hair”—descriptions that did not match Oswald. Oswald’s autopsy report showed that he was of normal height (five feet, nine inches) and thin (about 150 pounds), with thinning hair.
“No, no, I didn’t say this,” Markham replied, sticking to her original description of Oswald.
Lane tried again. “Well, would say that he was stocky?”
Markham: “Uh, he was short.”
Lane: “And was he a little bit on the heavy side?”
Markham: “Uh, not too heavy.”
Lane saw an opening: “Not too heavy, but slightly heavy?”
Markham: “No, he wasn’t, he didn’t look too heavy, un-huh.”
Lane: “He wasn’t too heavy, and would you say that he had rather bushy hair?”
Markham: “Yeah, just a little bit bushy.” (She would later say that she was confused by Lane’s insistent questioning and meant to say that Oswald’s hair was unkempt, not bushy.)
After turning for a moment to another set of questions, Lane tried again: “Do you say that he was short and a little bit on the heavy side and had slightly bushy hair?”
Markham: “Uh, no, I did not. They didn’t ask me that.”
Despite Lane’s badgering, the unsophisticated Markham mostly stuck to the account she had given the police. She continued to believe that Lee Oswald had killed Tippit, she said.
That was not how Lane would portray the conversation, however. In public appearances in the weeks that followed the phone call, he announced that he had talked to Markham and that she w
as now backing away from her description of Tippit’s killer. “She gave to me a more detailed description of the man who she said shot Officer Tippit—she said he was short, a little on the heavy side, and his hair was somewhat bushy,” Lane said, twisting Markham’s words.*
The commission’s staff lawyers shared Warren’s contempt for Lane. David Belin thought that Lane used a “carefully cultivated mask of sincerity” to turn the Kennedy assassination into a “lifetime meal ticket.” Jim Liebeler compared Lane’s tactics to the “old legend about frogs jumping from the mouth of a perfidious man every time he speaks.” The frogs represented the man’s lies “and you have to run in all directions to grab them.”
* * *
Lane accepted the commission’s invitation to testify, and the hearing was scheduled for Wednesday, March 4. Lane was the only witness ever called before the commission to request a public hearing, which was granted; reporters were invited into the hearing room on the ground floor of the VFW building. “I think that there are matters here of grave concern to all the people of our country, and that it would, therefore, be fruitful and constructive for the sessions to be conducted in a public fashion,” Lane said. He clearly sensed how valuable it would be to have the Washington press corps witness this moment; by allowing him to face down the chief justice and the other gray-haired commissioners, Lane might win newfound credibility as the commission’s leading critic.
Rankin led the questioning: “Do you have some information concerning the matters being investigated by this commission that you would like to present to the commission?”
Lane launched into a long, detailed monologue intended to pick apart the evidence that the Dallas police and the FBI—and, it now seemed, the commission—were presenting to the public to suggest Oswald’s guilt. As it had been from the beginning, his method was to suggest a cover-up whenever he could identify even small discrepancies in the public record and in press reports.
He began by focusing on the many photographs that had appeared in the weeks since the assassination that purported to capture an image of Oswald holding the Italian-made Mannlicher-Carcano rifle that had been identified as the murder weapon. A photo that had been published on the cover of Life magazine—the photo that Marina Oswald said she had taken in the yard of their home in New Orleans in the spring of 1963—showed the rifle equipped with a telescopic sight. But a seemingly identical photograph distributed by the Associated Press and published in the New York Times and other newspapers showed the rifle without the scope. That, Lane said, suggested that the photos had been doctored, which in turn could well be evidence of a “crime” to hide a conspiracy. (The truth, the commission quickly determined, was nothing of the sort. In some cases, photo editors altered the photo to create the sharpest possible silhouette of the rifle—a technique that had long been widespread, if ethically questionable, among American newspapers and magazines.)
Lane then cited witness statements in the records of the FBI and the Dallas police—statements that the commission had in its own files—that contradicted the official story that three shots had been fired from the Texas School Book Depository, hitting Kennedy and Connally from the rear. Some witnesses, Lane pointed out, heard four or more shots, while others insisted that the gunfire had come from in front of the limousine—from the so-called grassy knoll on the west side of Dealey Plaza or from the freeway overpass ahead of the motorcade. Lane argued that the witness statements, along with the medical evidence, offered “irrefutable evidence that the president had been shot in the front of the throat.”
Rather than challenge Lane, the chief justice and Rankin mostly sat back and let him talk for almost three hours, just as they had permitted Lane’s client, Marguerite Oswald, to offer her confused testimony the month before, mostly unchallenged. Warren’s strategy, it seemed, was to rob Lane of the ability to argue that his evidence had gone unheard by the commission. “We asked you to come here today because we understand that you did have evidence,” Warren told Lane. “We are happy to receive it. We want every bit of evidence that you have.”
During his testimony, Lane repeated a request that he had been making publicly for weeks: He wanted to serve as Oswald’s defense attorney before the commission, and to see all the evidence gathered by the investigation. “The fact that Oswald is not going to have a real trial flows only from his death,” Lane said. “Every right belonging to an American citizen charged with a crime was taken from him, up to and including his life.” He said Oswald deserved “counsel who can function on his behalf in terms of cross-examining evidence and presenting witnesses.”
Warren listened patiently before turning him down. “Mr. Lane, I must advise you that the commission, as you already know, has considered your request and has denied it. It does not consider you as the attorney for Lee Oswald.” He noted that Marina Oswald, his closest survivor, had not requested a lawyer to, essentially, defend her husband’s ghost. “We are not going to argue it,” Warren said.*
* * *
On the commission’s staff, no one could poke as many holes in Lane’s claims about the evidence as Redlich’s deputy, Melvin Eisenberg. The young lawyer had become the commission’s in-house expert on the science of criminology, and he could see how ridiculous many of Lane’s claims were, especially about the scientific evidence; he assumed others could see through Lane, too. “It would be ridiculous to be obsessed with Mark Lane,” he told himself. He was less bothered than others on the staff by Lane’s implication that they were all part of a conspiracy to hide the truth about Kennedy’s murder. “I thought that as long as we offered honest answers, nothing could happen to us,” he said. “Our reputations were safe.”
With the diligence that had led him to graduate first at Harvard Law School five years earlier, Eisenberg had finished poring through the thousands of pages of criminology textbooks that had been sent over from the Library of Congress. The science, he believed, showed that Oswald was guilty beyond any reasonable doubt: the ballistics and fingerprint evidence conclusively demonstrated that he had fired the bullets that killed Kennedy and nearly killed Governor Connally. Eisenberg could not rule out the possibility that Oswald had accomplices, but he was certain that Oswald had pulled the trigger that day at Dealey Plaza. “There couldn’t be any rational doubt that Oswald had at least shot the bullets that entered the president’s body,” he argued.
Eisenberg had not found it difficult to understand the science, which he outlined to the commission in a series of memos that winter. It came down to some very basic physics, chemistry, and biology. “It was easy,” he said. “This wasn’t rocket science.” He thought the ballistics evidence was especially straightforward. It could be proved with almost 100 percent certainty that the bullets that passed through the bodies of Kennedy and Connally had been fired from Oswald’s mail-order rifle. As Eisenberg learned from his reading, a rifle would leave distinctive grooves and other markings on bullets that traveled through its barrel. By examining the spent bullets under a microscope, an investigator could identify Oswald’s rifle as the murder weapon “to the exclusion of every other rifle on earth,” Eisenberg said.
In arguing for Oswald’s innocence, Lane was relying on witness statements and other types of evidence that deserved little, if any, credibility, Eisenberg now knew. It was disturbing for Eisenberg, who had never practiced criminal law, to discover that serious criminologists placed little value in the testimony of so-called eyewitnesses. Hollywood and popular crime novels might want to suggest that the best possible proof of a crime came from the accounts of people who had seen it take place, but from what Eisenberg was reading, eyewitnesses routinely got their facts wrong. It was common for people who saw the same crime to offer completely different accounts of what had happened, sometimes resulting in the conviction—and even the execution—of the innocent.
Even less credible, Eisenberg learned, was testimony from witnesses about what they had heard at a crime scene—so-called ear-witness testimony. It was often flatl
y wrong, especially in a relatively closed-in space like Dealey Plaza, where the sound of gunfire had ricocheted wildly and where witnesses had panicked and paid little attention to what they were hearing because they were running for their lives. In one of his memos, Eisenberg wrote that it was not surprising that some witnesses had heard only two or three shots, while others heard four or five or more, and that some witnesses insisted that they had heard the shots fired from the grassy knoll and other locations in front of the president’s motorcade rather than from the Texas School Book Depository.
As part of his assignment, Eisenberg met with scientists from the FBI’s crime laboratory, and he was impressed with their technical expertise and their intelligence. Still, he felt the commission should not rely solely on the bureau for the scientific analysis, so he asked permission to hire outside experts to review the physical evidence. To review the fingerprints, he proposed that the commission seek experts from the crime laboratory of the New York City police department. For the firearms, he suggested that the evidence be reviewed by nationally renowned specialists at the Illinois state Bureau of Criminal Identification. The commissioners, already so skeptical of the FBI, readily agreed.
Burt Griffin took time away from his study of Ruby’s life to bolster Eisenberg’s findings. After searching through FBI and Dallas police files, Griffin wrote a memo on March 13 that identified four men in and around Dallas who closely resembled Oswald and who had been mistaken for him on the day of the assassination. A fifth look-alike, Billy Lovelady, who worked with Oswald at the book depository, was photographed on the steps of the book warehouse minutes after the shots rang out. The commission’s lawyers were not surprised that even after Lovelady publicly identified himself as the man in the photographs, Mark Lane continued to insist it was Oswald on the steps—proof, Lane suggested, that Oswald must have been innocent of the president’s murder because he did not flee the scene of the crime.
A Cruel and Shocking Act: The Secret History of the Kennedy Assassination Page 23
