Last Word: My Indictment of the CIA in the Murder of JFK

by Mark Lane

  The Ominous Prophecy

  It was not a prophecy, but it was ominous. During 1968, President Lyndon B. Johnson was faced with a raging debate about his policies, particularly the war in Vietnam. There were riots in America’s large cities and sit-ins at colleges and demonstrations throughout the country. Johnson was unable to make major appearances, except for speeches arranged from military bases.

  Senator Eugene McCarthy had entered the primary campaign for the Democratic Party presidential nomination. In March, Gene won 42 percent of the vote in the New Hampshire primary. Four days later, Bobby Kennedy announced that he was a candidate as well. Two weeks later Johnson, aware of the repudiation of his policies, withdrew from the contest and said he would not seek reelection.

  The assassination of Dr. King on April 4 of that year led to riots in almost one hundred American cities and reminded us again that John Kennedy had been murdered less than five years earlier. Jim Garrison, the New Orleans district attorney, was openly investigating the New Orleans connection to that assassination. I was living in New Orleans at Jim’s request and providing factual analysis to the sometimes bizarre, often odd, information being funneled to the prosecutor’s office. Later, we were to discover that a number of theories had been authored by the CIA to discredit Garrison.

  Jim and I met one early evening at the Napoleon House on Chartres Street in the Quarter to discuss the case and down a couple of Sazeracs. Jim said that the establishment served the most authentic libations in the city, to which he added, “Therefore, almost needless to say, in the country, really the world, or so far as we know, far beyond.” The drink was impressive, but the news was far more astounding and promising. Jim said, “Not to be repeated, Mark, through a friend of mine and also his, Bobby has communicated with me. In case you haven’t figured out who Bobby is, it is Senator Kennedy.” When I asked what the message was, Jim took a sip, leaned over and whispered, “He said, ‘Keep up the good work. I support you and when I am president I am going to blow the whole thing wide open.’”

  I asked Jim how he responded. He told me that he was encouraged but also frightened. “If Bobby is telling people privately what his plans are, I think his life is in danger. Even the White House is not a sanctuary; his brother was president when they killed him. And Bobby is much more vulnerable now; he doesn’t even have Secret Service protection, not that those clowns are effective, and he mingles with crowds of people who want to touch him. He shakes hands with everybody. I told him that he should publicly announce his intentions now and that keeping them hidden from the public would provide motivation for the Company, since they obviously knew what his plans were.”

  Two days later Jim said that the honest broker had conveyed his views, that Bobby thought about the matter for a short time and said, “Tell Garrison that if I win the California primary I will state that I have doubts about the official version and that I will conduct a thorough investigation if I become president. If I win California I think I’ll be on my way.”

  When frequently asked by the media why Robert Kennedy seemed to be satisfied by the Warren Report, I was honor bound not to reveal what I had learned. One evening I appeared on a PBS television program in New Orleans. Jack Anderson, the most widely syndicated columnist in the country, was in the audience since he was also to be a guest in a different segment. I was called upon to explain Bobby’s silence. I began to avoid the question by focusing on the facts and then realized that the primary was at that time taking place in California and that the polls would be closed shortly. I observed that nothing I reported on a local program would reach the voters before the voting ended that night, even with the two-hour time discrepancy. I then revealed the Kennedy–Garrison dialogue in its entirety. I said that I would be heading home shortly to a television set possibly to hear Bobby’s announcement about his brother’s death later that evening or the next morning at a press conference.

  As Bobby mingled with his supporters, those nearby were, instead of Secret Service agents there to provide protection, two maitre d’s, a writer, a couple of athletes, and one FBI agent. The agent, William Barry, changed the route at the last minute. “No, it’s been changed. We’re going this way,” Barry insisted. Bobby had just turned to his left in a kitchen corridor to shake hands with Juan Romero, a busboy, when he was shot. As Kennedy lay wounded on the floor Romero placed his rosary in his hand. Bobby was taken to a nearby hospital where extensive surgery was performed. He died nearly twenty-six hours after having been shot.

  Jack Anderson later told me that he had written about my disclosures, which he had heard just before the assassination. His column, he said, bore the headline “Ominous Prophecy.” There seems to be no present evidence that it was ever published.

  Implausible Denial35

  Willis A. Carto was the publisher of The Spotlight, a weekly newspaper associated with Liberty Lobby, Inc. The newspaper had its detractors, many of whom branded it a leading anti-Semitic publication. Others said that it was anti-Zionist, that is, it opposed the politics of the State of Israel. The paper had been sued by E. Howard Hunt and had lost. The court had awarded Hunt substantial amounts for damages to his reputation.

  Liberty Lobby and its founder and CEO, Carto, operated from a building located near my home and office. He was facing bankruptcy and was in need of counsel. When Willis called, I agreed to meet him. I was intrigued by the substance of the lawsuit but cautious about the politics of the organization and its founder.

  On August 16, 1978, The Spotlight had published an article by Victor Marchetti, a former CIA officer, who said that in his last three years with the CIA he had served as a staff assistant to Richard Helms. Almost fifteen years had passed since the assassination of the president; during that period The Spotlight had not published a word of doubt regarding the official explanation. Clearly, Marchetti’s line of communication with his former employer was questionable. Yet the newspaper was impressed with his past credentials and his assertion that he had inside information intrigued them. While he was a fading star in the intelligence controversy, his name had some caché that might extend beyond the reach of the publication at that time, and could give a boost to the circulation.

  No confirmation could be retrieved from the CIA since the agency almost always refused to comment on the subject; and when it did so, its motives and credibility were universally suspect. The House Select Committee on Assassinations, on the other hand, had been created and was authorized to investigate the assassination of the president. In the article published in The Spotlight, Marchetti wrote, “Chief among those to be exposed by the new investigation will be E. Howard Hunt, of Watergate fame. His luck has run out, and the CIA has decided to sacrifice him to protect its clandestine services. The agency is furious with Hunt for having dragged it publicly into the Nixon mess and for having blackmailed it after he was arrested.” Marchetti added, “In addition, it is well-known that Hunt hated JFK and blamed him for the Bay of Pigs disaster.” He also predicted, “In the public hearings the CIA will ‘admit’ that Hunt was involved in the conspiracy to kill Kennedy.” Marchetti asserted, “Now, the CIA moved to finger Hunt and tie him into the JFK assassination,” and “E. Howard Hunt will be implicated in the conspiracy and he will not dare to speak out—the CIA will see to that.”

  None of Marchetti’s published predictions were realized. The CIA did not “sacrifice” Hunt, and it did not state that he had been involved in the assassination conspiracy. To the dismay of the newspaper, the most painful of the failed prognostications involved the prophecy of Hunt’s assured silence. Instead, he filed a massive defamation case in the United States District Court in Florida against the newspaper and chose as his counsel Ellis Rubin, not the most talented of trial lawyers, but the one who seemed committed above all others to obtaining press coverage. The trial judge was James W. Kehoe, an experienced, fair and learned jurist.

  The newspaper retained as counsel a lawyer whose lack of knowledge about the facts leading to the assassina
tion was equaled by his lack of interest in the subject. He began by asserting in his opening statement to the jury that he was genuinely sorry that the article had even implied that Hunt was involved in any mischief that fateful day. He said, “We are not going to come forward and try to prove that Mr. Hunt was involved in the Kennedy assassination.” He then offered his personal assurances of Hunt’s innocence as well as a statement from his client, Liberty Lobby, the publisher of the newspaper. “I will be candid with you, and from what I know about this case, there is no question that he was not involved. There is no question in the minds of the people at Liberty Lobby.” He completed the abject surrender by imploring his adversary to accept a formal agreement to be read by the judge to the jury in the form of a stipulation about the facts. Hunt’s counsel agreed and Judge Kehoe obliged, saying, “For the purpose of this trial, the defendants have acknowledged and conceded that the plaintiff in this case was not in Dallas, Texas, on the date of the assassination of President Kennedy, which was November 22, 1963.”

  Hunt and his counsel at that point, quite certain of victory since no serious defense had been offered, concentrated on testimony regarding damages. They each expected millions of dollars with at least a third to be retained by Rubin. The newspaper’s publishers knew they faced bankruptcy. Hunt’s direct testimony took a considerable period of time and 137 pages of the trial transcript. Defense counsel cross-examined Hunt for only ten minutes, comprising six pages of the transcript. With so impotent and subservient an adversary, Hunt felt free to take extraordinary liberties with the truth. He felt certain that none of the issues could ever again be raised in court, and that therefore, his assertions could not be challenged then or in the future. But then fate intervened, not just once as in Casablanca, but twice.

  Hunt testified both at a pretrial deposition and then at the trial about the pain and suffering that he endured. He claimed his wife and his own children, then all adults, read The Spotlight article and believed it. They confronted him and asked if he had been involved in the conspiracy to murder the president. They asked what he was doing in Dallas that day. Why would the newspaper publish those accusations if they were untrue? Hunt testified about the “strains” in the “familial relationships.” His wife was “shocked” by the accusation. Hunt, almost in tears, testified, “Being queried by my adult children, by my wife—‘Is there any truth to this? Why would they say this? How can they print this if it is not true?’ It’s a very heavy psychological burden for me to carry, for any man to carry.” At the trial, Hunt stated that even after his fervent denials his children could not reject the article and that it was “very difficult to quell.”

  The story was comprised of a number of predictions; it was written by a person and printed in a publication none of the family members had ever heard of, a newspaper with a limited circulation, which sold almost all of its copies to subscribers. An inquiring mind might wonder if Hunt had fabricated a potentially remunerative myth, with the expectation, soon fully realized, that he would not be challenged at the trial by opposing counsel and that the jury would, therefore, have no basis to disbelieve him.

  Not satisfied that the case had been almost certainly won on the facts, counsel for Hunt apparently decided to seek an edge as to the prevailing and relevant law. As a trial draws to a close, all counsel begin to prepare their final remarks to the jury. After each side closes, the court instructs the jury as to law. For counsel to apply the facts to the law, it is necessary for the lawyers to know what the judge will say to the jury about the law before he instructs them. The anomaly is resolved in a simple, yet somewhat convoluted manner. The judge arranges for a charge conference, often in chambers, where the parties make proposals for the language of the instruction. Often, the court will require that those suggestions be made in advance and in writing. Where the parties agree, the judge will generally give that instruction, for it is the general principle of law that a party will later be precluded from appealing without having made a timely objection. Where the parties disagree, the judge will make the decision.

  In this case the only hope for the newspaper was based upon an accurate instruction about the concept of “actual malice,” a term of art that holds that if the plaintiff is a public figure he is obliged to demonstrate that the published document was made by a defendant who either knew it was false or acted with reckless disregard to its lack of truthfulness.

  Counsel for Hunt struck again, this time with reckless disregard for his own client’s best interest. He offered an instruction that violated the clear and unambiguous decisions of the Supreme Court. Counsel for the newspaper immediately, and unfathomably, joined in. The court read the agreed upon instruction.

  With no facts and no law to interfere with Hunt’s view of the case, the jury returned a verdict for Hunt and awarded him $100,000 for compensatory damages and $550,000 for punitive damages. Hunt was an ex-convict and had been convicted of serious crimes at Watergate. His reputation was in ruins. He had not been accused of murder, much less convicted for having assassinated the president, so the jury, given no contrary facts or law to consider, had reached the only verdict possible; their award of damages was reasonable. The newspaper was constrained to consider filing for bankruptcy. In a last-ditch effort it considered an appeal based upon the erroneous instruction agreed to by its attorney.

  Kismet and the United States Court of Appeals for the Eleventh Circuit entered the contest, a development that Hunt’s counsel had not anticipated. The applicable standard is that failure to make a timely objection bars an appeal. However, at law, there usually are some exceptions for the rare and unexpected case. In this matter it is called “plain error.” If the instruction is so egregiously wrong and so clearly affected the verdict so as to deny a fair trial, an appeal may be considered. The three-judge panel met. All seemed to agree that the instruction comprised error. One thought it was “plain error” and one did not. The third jurist agreed that it was “plain error” and the Court of Appeals reversed the verdict and award and sent the case back to Judge Kehoe for a new trial.

  Hunt fired his trial lawyer, Ellis Rubin. The newspaper also sought new counsel: an experienced trial attorney with some knowledge about the assassination of President Kennedy.

  Later, Willis Carto was to say that destiny led him to my office in Washington, D.C. If so it was an occurrence that Hunt could not have envisioned. I had not heard of The Spotlight, had no knowledge that Marchetti had written an article and had not known that a lawsuit had been filed and won by Hunt. I agreed with Willis only to review the trial transcript. After I read the record of the trial I said I would try the case.

  I agreed to a small fee, but my other conditions could be evaluated as being somewhere between inflexible and nonnegotiable. We would defend the case primarily on the merits. Hunt had been in Dallas on November 22, 1963; he and the CIA had conspired to assassinate the president, and we would try to prove that to the satisfaction of a jury. In order to meet that test, I would require my client to pay the costs of a court reporter as I took depositions from Hunt; G. Gordon Liddy, another Watergate conspirator and ex-convict; Richard Helms, former director of the CIA who was convicted after having been charged with seeking to mislead Congress while under oath; David Phillips, who had run the Western Hemisphere for the CIA and who admitted that he had led a CIA effort that tried to destroy the reputations and livelihoods of those who sought the truth about the assassination in order to protect the agency; and all those who had contributed to Hunt’s fabricated alibi. The character of the witnesses was, in my mind, not in dispute. I expected evasion and deception, but even those responses could be illuminating. I did not underestimate the challenges ahead, but the promise of questioning those villains of our time, I confess, made me look forward to the test as a child might look at a future in a candy shop.

  Hunt had retained a respected and formidable law firm. Before I took Hunt’s deposition I studied the record of various statements he had made under oath as to his w
hereabouts on November 22. He had consistently stated that he had not been in Dallas that day. He always had presented an alibi as to where he had been. However, the alibis were both contrived and contradictory. One was transparently false, since the Chinese grocery in Washington, Wah Ling, where he claimed he and his wife had shopped while Kennedy was being assassinated in Dallas, was not in existence in 1963. Hunt’s wife, Dorothy, had worked for the CIA in Shanghai and later prepared Chinese meals at home. I had dabbled in Asian cuisine as well and had often shopped at the same market. I knew when it had first opened its doors.

  Hunt’s law firm filed a motion to have me removed from the case, stating that I would “turn the courtroom into a circus.” I could not take the ludicrous motion seriously. By then I had tried cases in almost half of the states in both federal and state courts and, unlike my adversaries, I had practiced law for a quarter of a century and had never been held in contempt or sanctioned by any court. I responded to the motion by stating that I had made arrangements with the clown organizations, which I presumed my adversaries knew since they were probably members, and the tigers and lions. Even before my responsive pleading was completed, Judge Kehoe, acting sua sponte, expressed his outrage as he denied the motion and welcomed me to his court.

  Hunt’s counsel filed emergency motions to prevent me from looking into Hunt’s alibi. My opposition stated that the stipulation made during the last trial survived until that trial ended but could not impact upon a future trial. That position was well based upon the law and the facts; one of the facts being the language read to the jury by the judge which began, “For the purpose of this trial … ” and not for the purpose of this case. The stipulation survived for for that trial only, not for a subsequent trial. Judge Kehoe agreed with me and later so did a unanimous Court of Appeals. Now, clearly relevant was where Hunt would finally state he was on that tragic day for America.