by Barry Krusch
Your answer: yours truly!
Incredible though it may seem, I am convinced that Bugliosi is wrong, and for that matter, Stephen King, Tom Hanks, Bill O’Reilly, and anyone else who happens to agree with him, whether CBS, ABC, PBS, Peter Jennings, Walter Cronkite, Dan Rather, Bill Clinton, the history textbook you read in high school or college, etc. etc. etc.
How sure am I? So sure that I’m willing to put anywhere from $1,000 to $12,000 on the line, and possibly higher, to prove I’m right.
Yes, as Rodgers and Hammerstein once told us in the classic musical Cinderella, “impossible things are happening every day,” and to show that’s no fairy-tale, I want to prove the impossible, that there is absolutely no case against Lee Harvey Oswald!
Nada. None whatsoever. Zip. Zero. Zilch.
But, if you can prove me wrong to the satisfaction of a unanimous virtual jury of 12 arbitrators, the money is yours . . .
Are you salivating yet? Got that cruise planned already? (I recommend The Jazz Cruise, or maybe a poker cruise, where you can parlay those thousands into multiples of thousands).
The rules for this engagement, which I will refer to using the umbrella term The JFK Challenge, are contained later in this book (partly) and more specifically and more completely the third volume of this book, as of this writing. Information related to The JFK Challenge (whether in fact anyone accepts the challenge or not, the amounts to be awarded, and the results, if any) will be contained at the following link:
http://www.krusch.com/jfk
(then click the “JFK Challenge” link)
Why create The JFK Challenge? Because I am convinced of one other thing that you simply won’t believe. Here it is:
Not only do I believe there is no Case Against Oswald whatsoever, I don’t believe that there is even one person in the United States, and possibly the world, that will accept the challenge, proving that no one else believes it either!
Now, wouldn’t that be something? Just think: millions upon millions upon millions of media impressions that “Oswald did it, Oswald did it, Oswald did it”, creating what we can call The Oswald Wall, Oswald’s guilt assumed in history courses throughout the land and DVDs formerly littering the shelves of Blockbuster (now streaming video from Netflix and Amazon), and millions of people exposed to these impressions who supposedly buy into this blarney, and yet no one — not one — who is confident enough to take on the challenge.
I mean, what would that mean? The thought is staggering. Here’s one implication:
A chief judge of the United States Supreme Court was wrong, and a guy meandering in the woods pondering alien agendas was right!
(let us all pause to let this sink in . . .)
Of course, whether this turns out to be the case, only time will tell.
While we wait for the results (tick, tick, tick . . .), let’s proceed and take a look at the method by which I seek to prove that The Case Against Oswald is impossible — actually impossible, not one of the “impossible” things that can and do happen every day.
I will start here with the low-hanging fruit, and zero out the really bad arguments, like this one:
Communists are bad.
Assassins are bad.
Oswald was a Communist.
Therefore, Oswald killed Kennedy.
Now, I don’t know if anyone actually believes anything like this, but if they did, they really must have some wires crossed in their mind. To have any hope whatsoever of turning this into something logically sound, we would have to articulate the implicit, unstated premises here, which is that “all Communists are assassins” and “all assassins are Communists.” These unarticulated premises can be destroyed simply by observing that if the lone assassin theory was true, and there were 10,000 Communists in the United States in 1963, we would know for a fact that 9999 of them could not have killed Kennedy. In addition, if there were 1000 assassins in 1963, we would also know that 999 did not kill Kennedy either. Even this wouldn't do it. To save this syllogism, we would have to manufacture yet another (obviously false) premise “All assassins killed Kennedy,” and what would be the point of that? So this logic is clearly incorrect, and anyone who believes it is . . . dare I say it . . . crazy.
Just as bad is this one:
People who believe in aliens are crazy.
Jim Marrs believes in aliens, and a conspiracy to kill Kennedy.
People who believe in a conspiracy to kill Kennedy are crazy.
Hits a lot closer to home, doesn't it? This unstated syllogism is what lies behind articles like we saw in the Dallas Observer, and this chapter title in Reclaiming History (RH 872):
Or this marvelous writing by Bugliosi (RH 872):
“A chorus of cuckoo birds will voice their bizarre observations.” Pure poetry from our legal Longfellow (love that meter!). But underlying this poetics is logic, Bugliosi-style, and that's where the beauty ends.
Again, returning to the syllogism, to disprove this “logic,” all we have to do is take a look at all the beliefs that Jim Marrs has. If this logic were true, every single thing that Jim Marrs believed would have to be false. Yet we know this could not possibly be the case, as shown in the following counter-syllogism:
People who believe in aliens are crazy.
Jim Marrs believes in aliens and that 2 + 2 = 4.
People who believe that 2 + 2 = 4 are crazy.
Now that is crazy!
With two of the most poorly-conceived syllogisms disposed of, let’s also eliminate the disreputable tests some people may have silently used in their minds to convict Oswald, most of these related to the Asch effect:
The Bestseller Test (if a bestseller says it, it must be true);
The Friend Test (if all my friends say it, it must be true);
The Television Test (if the television reports it, it must be true);
The Personal Feeling Test (if I hate Communists, Oswald did it);
The Textbook Test (if my textbook tells me so, it must be so);
The Timing Test (if I have been exposed to ten hours of information that Oswald did it, and one hour of information that he did not do it, then he did it);
The Stack Of Books Test (if John reads a stack of books 1 foot high on the subject, and Ted reads a stack of books 2 feet high on the subject, and they are opposed, Ted is right, and John is wrong, particularly if Ted thinks Oswald did it);
The Majority Rules Test (if the majority thinks that Oswald was involved, he is guilty);
The Lots Of Letters Test (people with lots of letters after their name should always be trusted over people with no letters after their name. NOTE: having a Nobel Prize = 20 letters after your name, and testifying for the Warren Commission gives you double points);
The Famous Person Test (if a famous person says something, and a person we don’t know says something else, believe the famous person);
The Hall Of Mirrors Test (the more media outlets that report something, the more likely it is to be true).
I think we can take it on faith that truth is not determined by the number of bestsellers which report something as true, or the number of friends we have, or whether or not a television show reports x, or any of the above, and if faith doesn’t do the job, numerous counter-examples in the real world would. Now, if anyone can come up with any compelling reasons why I am wrong, please let me know.
So much for the easy ones. But while easy to show invalid, they are not the most common reasons why Oswald gets virtually burned at the stake in our 21st century version of the Salem witch trials (at least in the 17th century version, the "witches", unlike Oswald, had a trial). The most common reason is a meme that lies silently in people’s minds, unarticulated. If you want to know why PBS, CBS, ABC, Tom Hanks, and a whole host of others are wrong, you have to understand this meme, and that is this:
They are applying the wrong standard of proof.
Because they are applying the wrong standard of proof, they can convict in their minds someone who is actually unconvi
ctable.
It took me a long time to figure out how so many people could be off the mark, until I finally realized that many of these people have their belief because they are not applying the correct standard — that of reasonable doubt — but a different and illegitimate standard, the standard of unreasonable chance.
Yes, the unreasonable chance standard is alive and well in America, and for my money (up to $12,000 or possibly higher, remember?), if you want an explanation of how so many people can be so wrong, this is it.
To prove that this standard does its dirty work silently in people’s minds, an elegant proof is provided by none other than Stephen King, in the afterword to his book. Extra points if you spot the doublethink before I highlight it for you (11/22/63, p. 845):
(While you are scoping out the doublethink, I have to point out something about the “fame-junkie” crack: if Oswald was such a fame-junkie, why did he deny killing Kennedy? Isn’t that something a fame-junkie would be proud of?)
Okay, I’ll forget about the crack, and move to the issue at hand, focusing on two opposing key statements in the King paragraph:
“I’d put the probability at ninety-eight percent, maybe even ninety-nine.”
“Were the odds of it happening just the way it did long? Yes. So are the odds on winning the lottery, but someone wins one every day.”
Now there’s a contradiction for you. A glaring one. We can see why when we realize that winning a lottery is not an easy thing to do; for example, in the Mega Millions lottery in America, 5 numbers are drawn from a group of 56, 1 number is drawn from a group of 46, and you must match all 6 balls to win the jackpot. Good luck: the chance of winning is a whopping 1 in 175,711,536! 4
To simplify matters, let’s say the lottery King is talking about is a much easier lottery to win, where the chances of winning are a much less intimidating one in a million. Now, let’s restate what King said using common terminology in both statements, and the contradiction will really pop out at you:
“I’d put the probability at 980,000 chances in a 1,000,000, maybe even 990,000 chances in a 1,000,000.”
“Were the odds of it happening just the way it did 1 chance in a 1,000,000? Yes. So are the odds on winning the lottery, but someone wins one every day.”
Now, how ridiculous is that? The confidence level that one should have for an event to occur should be directly related to its probability!! So, for example, if you flip a coin one time, you should be 50% confident that heads will come up, not 100%. If you flip a coin three times, you should be 12.5% confident that heads will come up three times in a row, not 50%.
Yet what King is saying is that even though the odds of Oswald being guilty were around 1 in 1,000,000, he puts the probability of Oswald being guilty at 980,000 chances in 1,000,000!!!
Folks, that just does not compute! 980,00 ≠ 1!!
Oswald gets inappropriately burned at the virtual stake because King rides down a slippery slope from the reasonable doubt height and some way, somehow, ends up mired in the unreasonable chance quicksand: in other words, if there is any chance that you are guilty, then you are guilty, even if the chance is one in 1000 or one in 1,000,000 or one in 1,000,000,000! Therefore, you are damned if you did, and damned if you didn’t.
Object to King’s reasoning? Well, shame on you, because someone does win the lottery . . . don’t they? Well, eventually. But that’s not really the point, is it? If you put people in jail based on the results of a coin flip, that approach would be light-years more fair than this standard!
Can you imagine how full our prisons would be if we convicted people using the unreasonable chance standard of 1 in a 1,000,000??? If you can’t, consider the insight which emerges when we come at the ratio from another angle:
If the chance you are innocent is 999,999 out of 1,000,000, get ready to do some hard time in the slammer!
That’s right, under the Stephen King lottery-odds-are-the-benchmark version of the unreasonable chance standard, we’d all be calling Sing Sing home! And if that were true, would King be singing a different tune?
I don’t know, probably not: if that person knocking at your door with a warrant for your arrest turns out to be Stephen King, I’d suggest you git while the gittin’ is good.
Uh oh, too late . . . heeeeeeeeeeere’s Stephen!
Ahhhh, you say, now the light bulb is turning on!
Yes, unfortunately for the premise of King’s novel, it turns out that we do not live in North Korea, nor China, nor any imaginary dystopia which would employ a standard so bizarre . . . and so unjust.
Instead, we live in the United States of America, where the standard of proof is much higher, and thank G-d for that (if you’re an atheist, thank the Constitution). Equally important, that standard of proof has to be determined by not just one person, but twelve people, all in agreement, gathered together in a group we call a “jury”, who listen to testimony from a jury box. Count the seats:
So, whatever the standard happens to be, we know that it is much, much higher than the unreasonable chance standard, and because of it, the chance of convicting Oswald would be much, much lower, perhaps even approaching . . . zero!
“But Barry, how can you say that?”, you say, “didn’t Bugliosi win before a jury on Showtime in 1986?”
Yes, indeed; in 1986. But new evidence has come out since then, and the defense is a lot more refined than that presented by Gerry Spence. And who knows how that “trial” was controlled, anyway? And how the jurors were selected? And what nondisclosure agreements did they sign? Was it on Showtime for a reason?
Indeed, another (later) mock trial did not have the same result (“Jury Deadlocks in Oswald Mock Trial,” ABA Journal, October, 1992, p. 35):
Note what this article concludes, as I mentioned above: there have to be twelve people on the jury, and they all must agree. If they don’t all agree, that is a deadlocked jury, what is sometimes known as a hung jury. If the jury can’t reach a decision, then there has to be a new trial, with a new jury, and the cycle will start all over again, if necessary.
And that is the way the justice game is played in the U.S. of A. Love it or leave it. For my part (for what it’s worth), I love it. I hope you do too.
Now that the cobwebs have begun to clear away from our mind, it is time to get serious. We had a lot of fun with aliens and UFOs earlier on, but when the evidence doesn’t fit the conclusion, that hard dose of reality is going to wipe the smile off our faces. And the reality is that the standard of proof required to convict Oswald is a very difficult one to meet.
Let's learn more about it.
While typically thought to be a quintessentially American concept, it turns out that the concern for protecting the rights of the innocent by applying an extremely high standard of proof has an ancient, very rich history, a history by no means confined to the United States.
Maimonides, writing in the 12th century, codified 613 commandments in the Jewish Bible, and wrote the following about Commandment 290 (emphasis supplied): 1
The 290th commandment is the prohibition to carry out punishment on a high probability, even close to certainty . . . . Do not think this law unjust. The Almighty shut this door and commanded that no punishment be carried out except where there are witnesses who testify that the matter is established in certainty beyond any doubt . . . it is better and more desirable to free a thousand sinners, than ever to kill one innocent.
Nor was this view by any means confined to Judaism. It is part of what might be considered “natural law.”
According to Professor Sandy Zabell, Professor of Statistics at the University of Chicago, the earliest reference in non-religious legal literature was authored by Justinian: 2
The Divine Trajan stated in a Rescript to Assiduus (sic) Severus: “It is better to permit the crime of a guilty person to go unpunished than to condemn one who is innocent.”
But, though the concept was an ancient one, America did provide a vehicle for formal recognition of this value in the Cons
titution of the United States of America, specifically, the Fifth and Fourteenth Amendments, which provide (respectively) in pertinent part as follows:
No person shall be . . . deprived of life, liberty, or property, without due process of law . . . 3
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . 4
According to these Amendments, due process is the framework within which the mechanisms of criminal law operate. But what processes are “due?” There is an entire suite of these, and it is in the definition of these processes that we find the stipulation of the means by which the innocent shall be protected, and that means is through the creation of a high standard of proof.
Here is the standard:
In criminal law, innocence is presumed until guilt has been proven to the factfinder — a jury — beyond a reasonable doubt.
Note that the standard specifically refers to being found guilty of a crime. In other areas of criminal law, and also throughout civil law (lawsuits between two parties involving negligence, defamation of character, etc.), there are other, lower, standards of proof. Two of these standards are “preponderance of the evidence” and “clear and convincing evidence,” as noted by Dorothy Kagehiro (Kagehiro, 1990, pp. 194-5; paragraph on separate pages combined by author):
