Advocacy Research-Revisiting the Warren Commission

                                                             John Delane Williams

In "typical" court proceedings, an advocacy research/presentation of the facts is envisioned. The advocate for the prosecution (the prosecutor) would present the evidence that the prosecutor thinks will present the best case for convicting the defendant. In a perfect world (which we DO NOT live in), exculpatory evidence which suggests that some doubt exists as to whether the defendant is guilty, would be at least be made available to the defense. The advocate for the defense is charged with defending his/her client, testing the evidence brought by the prosecution, and presenting countering evidence that can show, at least, that a reasonable doubt exists. The forgoing does not come anywhere close to the activities of the Warren Commission.  Hypothetically, the Commission and the staff were to examine all of the information (presumably facts), and without prejudice, render a report that fairly addressed the assassination of President John F. Kennedy. Prejudice can be simply be stated as prejudging. In fact, the Warren Commission functioned from the moment of its conception to be prejudiced.  The first meeting of The President's Commission on the Assassination of President John F. Kennedy (the actual title of the Commission that has come to be known as The Warren Commission) took place on January 27, 1964. The entire transcript of that meeting was published with annotations and comments by Harold Weisberg, [1] courtesy of the Freedom of Information Act. Howard Willens, a staff member who came from Bobby Kennedy's Justice Department, wrote a memorandum for the record on the day following the meeting: "...(W)hat the commission was up to from the first, [was] the search for means of foisting off a preconceived conclusion, the deliberate hiding of what actually happened when JFK was killed." [2]  Willens early on made the case that  the Warren Commission was in fact prejudging the work before them.

The Relation of Bayesian Statistical Analysis to Prosecutorial Advocacy

A lesser known (but not less important) statistical analysis approach, is Bayesian analysis, after the British statistician Thomas Bayes. A Bayesian analysis [3] differs from a standard approach by allowing an individual's (or group's) beliefs about an event enter into the decision process. A natural analog is a horse race. In projecting the winner of a race, the odds of a horse winning is not based on an objective analysis of performance data (though persons may use objective information in assessing their subjective choices). The "odds" reported are pari-mutuel odds, that is, the "average" of people's subjective choices when they place their bets for the race. Of course, many times a favorite does not win the race. The race is the objective outcome, which need not correspond to the bettors choice. Bayesian analysis also allows for testing past events that have an unknown aspect. In particular, solving a murder case involves an outcome (the murder) with an "unknown" cause. In a murder case there may be several suspects. In the particular case of the JFK assassination, we might have the following suspects: (1) Lee Harvey Oswald, acting alone, (2) Lee Harvey Oswald, as part of a conspiracy, (3) members of the Dallas Police, (4) the CIA, (5) the FBI,  (6) Texas oilmen, (7) Cubans supporting Castro, (8) anti-Castro Cubans, (9) the Mafia, and (10) the Russians. This is by no means a complete list, and some might want combinations, such as the CIA and the FBI. What others might have preferred would have been the Warren Commission to have investigated each of the listed entities. The persons chosen by the Warren Commission to do their weighing of evidence to be a preliminary report were for the most part young lawyers, whose very training was to be an advocate for a position. And pointedly, no person was given the role of being an advocate for Oswald (Mark Lane volunteered for this role, but his volunteering was not accepted by the Commission). It would appear that only the first two options were considered by the Commission, and hence, considered by  the young lawyers they hired to sift the collected data. Most of the evidence was in fact collected by the FBI; any veering away from objectivity would taint whatever data was collected. The prior beliefs of certain principals could easily taint the data collection process. Further, if Oswald were considered to be in a conspiracy, the cleanness of the outcome could be politically problematic. Hence for some participants, the prior probability of Oswald's having acted alone likely would have been very near certainty (i.e. a probability of  near to 1). Some of the staff members entertained the second option (i.e., Oswald was the shooter, but also involved in a conspiracy). For most of the persons involved (the Commission, the Commission's staff, and the FBI), the expectancy was that the shooter was most likely Oswald. It would seem that the belief Oswald was the shooter was a given to most of the persons involved with the investigation. The lack of an advocate for Oswald left little doubt as to who would be blamed. The goal of the group seemed to be to find the facts that support "convicting" Oswald, and in some way, show that all exculpatory information suggesting Oswald wasn't the shooter was somehow in error. In simple words, the overall goal of the Warren Commission was to come to the conclusion that Oswald and no other person was responsible for the assassination of President Kennedy, and to come to that conclusion prior to the Presidential election in November 1964.

The Handling of "Data" - the Case of Victoria Adams

Victoria Adams was an employee at the Texas Schoolbook Depository (TSBD), who along with three other women, were watching the Presidential motorcade from a fourth floor window on November 22, 1963. Directly after the last shot, she and another employee, Sandra Styles, went down the stairs to the first floor. They neither saw nor heard anyone on the stairs. The only person they encountered was a large black man, also an employee at the TSBD, whom they saw on their way out of the building. A third employee, Dorothy Ann Garner, immediately situated herself in a chair by the stairs and the freight elevator, where she would notice anyone going up or down the stairs or elevator. At no time did she see Lee Oswald. It was several minutes before anyone passed her on the stairs. They included Roy Truly, TSBD Building Superintendent, and  policemen going up the stairs to investigate. Collectively, the four women's observations would preclude Oswald being on the 6th floor at the time of the assassination. Among the four women, only Vicky Adams was interviewed by the Warren Commission, and had that interview made public. Dorothy Ann Garner stated that she too was interviewed by the Warren Commission, though no record has yet been found of that interview. Perhaps after interviewing her, a decision was made NOT to do a deposition. Each of four the women had been interviewed by the FBI (CE 1381). Vickie Adams'  later interview with the Warren Commission was conducted by David Belin, a member of the Warren Commission staff investigator team. In Vicki Adams' testimony, a curious sentence was added, that she had encountered Bill Shelley and Billy Lovelady on the first floor. It strongly appears Belin (or someone else within the Warren Commission staff) added this statement after Vickie Adams had seen the typescript of her testimony. Vickie was astonished by the change, which she only became aware of years later. The change of course, would have allowed Oswald time to come down the stairs, in that Lovelady did not enter the building until five minutes after the shooting. It becomes clear that the evidence was being changed by the Commission staff to save the appearances that Oswald could have been the shooter. By not interviewing (and producing a record) of any of the other three women, and changing the testimony of Miss Adams, Belin was introducing a lie. [4] Had a lawyer such as Mark Lane been able to rebut the information inserted by Belin, the Warren Commission might well have had a different outcome, apparently something not desired by the powers that be.   

Oswald's Income

Before looking at the FBI's and CIA's involvement in the Warren Commission's workings, it is instructive to look at Oswald's income in the two months preceding the assassination.

Warren Commission staff  lawyer Richard Mosk and IRS supervisor Phillip Barson filed a report to the Warren Commission on Oswald's income and expenses for September 25, 1963, the day he left New Orleans for Mexico, until the assassination, slightly less than a two month period. "His [Oswald's] income, including salary and unemployment insurance, totaled $3665.89, while his expenses, including the cost of the Mexico trip, totaled $3,497.79. It was a difference of $168, and that money was apparently accounted for, since Oswald left the $170 in cash for Marina in a drawer in the bedroom dresser." [5]

That statement is astonishing. Oswald's only employment was at the TSBD, from October 16, 1963 until November 22, 1963, five weeks and three days. At a wage of $1.25 per hour, Oswald would have earned around $280 at the TSBD during his employment there. As to unemployment insurance, Oswald cashed his last unemployment check from the State of Texas on October 15, 1963, in the amount of $6. [6] Clearly, Oswald had other sources of income. A likely source of some of that income was the CIA financed research project in New Orleans headed by Dr. Alton Oschner:  "...Lee Oswald secretly worked as a team member on Ochsner's bio-weapon project,... Oswald met with Oschner personally, and that it was actually Lee Oswald who requested that Dr. Oschner set up his media coverage to help position him as a pro-Cuban activist, so that he could get into Cuba more easily and deliver their bio-weapon to sympathetic doctors, who would use it to kill Castro." [7] The CIA, through the New Orleans research project would likely have funded not only his employment through the clandestine project, most likely they funded his trip to Mexico as well. The FBI likely also paid Oswald money during this period for some of his activities.

The FBI and the Warren Commission

Prior to the first executive session of the Warren Commission, January 27, 1964, the FBI had issued a 400 page, five volume report on the assassination of President Kennedy on December 9, 1963. [8] They stated that Oswald was the assassin without accomplices. Three shots were fired, two hit President Kennedy and a third shot hit Governor Connally. Initially, the staff of the Warren Commission used this scenario as the description of the assassination. When it was discovered that one of the shots missed the limousine entirely, the magic bullet hypothesis was adopted, wherein a single bullet hit first President Kennedy, and then struck Governor Connally. Connally insisted that he was hit by a separate shot. The FBI did not revise their assassination scene to correspond to the magic bullet scenario. The FBI was assigned the task of collecting information from potential witnesses, including witnesses regarding Oswald's background. Presumably, they generally did a more honest job than David Belin. Which is not to say that the FBI  reported in a completely fair manner. A woman, Alma Cole, wrote a letter to President Johnson on December 11, 1963, regarding Oswald having been present in Stanley, North Dakota  for several weeks in the summer of 1953 and had spent quite a bit of time with her son. The FBI did several interviews in Stanley. Many Stanley residents were questioned as to whether the Oswalds resided there [Of course not; they were transients!] Many of the persons interviewed would have been adults at the time Oswald was reported to have been visiting there. Not surprisingly, most responded that they didn't recall anyone by the name of Oswald living there. Some of the persons interviewed who were close to Oswald's age did recall Oswald. [9] Still, what the FBI did report was accurate even if incomplete, although their choice of wording in their questions was misleading. [10]

The FBI and Oswald

Lee Rankin, the general counsel for the Warren Commission, effectively stated, regarding the rumor that Lee Harvey Oswald was a paid informant for the FBI, "We have a dirty rumor...and it must be wiped out." [11] It is clear that investigating this "rumor" was not even a consideration. From Rankin's view, and perhaps many of the Commission members' views, it was simply untrue (From a Bayesian point of view, for the Commission and its staff lawyers, the probability that Oswald was a paid informant was zero, there was no chance that it could be true, therefore they need not investigate it.) In simple terms this is the definition of prejudging. Were Oswald a paid informant, it would be most likely that the number of persons knowing this would be limited to his FBI handler and perhaps the handler's supervisor. All other personnel in the FBI could honestly claim that they were unaware of Oswald's being a paid informant. Yet there were circumstances that might suggest that Oswald was in fact a paid informant. Oswald's relationship with Guy Banister, a former FBI agent who had strong feelings against persons that he saw as "subversive", nevertheless was cordial to Oswald, even as Oswald stored his "Fairplay for Cuba" pamphlets  near Guy Banister's office in New Orleans. When Delphine Roberts, Banister's secretary, inquired about Oswald handing out pro-Castro literature, Banister replied, "Don't worry about him... He's with us. He's associated with this office." [12] On August 9, 1963, Oswald was arrested along with three Cubans who confronted Oswald for passing out the leaflets in favor of Castro and Cuba. The next day, from jail, Oswald called the New Orleans FBI office. Special Agent (SA) John Quigley took the call, and then went to the police station. The FBI would almost never have gone to a jail to interview someone who was there for disturbing the peace. When Quigley left the jail, he went back to the office and asked FBI employee William Walter to see if the FBI had a file on Oswald. A file was located, which had an "informant" classification. [13] William Walter was the employee present when the New Orleans office of the FBI received a telegram, Sunday morning, November 17, 1963 from Dallas (and presumably from Oswald), regarding a planned assassination attempt against President Kennedy in Dallas, either on November 21 or 22. [14]

We also know that the FBI was questioning a man, Junior Moore, in Mobile Alabama on November 21, 1963 regarding whether he was aware of a person named Lee Harvey Oswald in Mobile; Oswald had spoken at Spring Hill College in Mobile in July of that year. [15] The FBI might have been searching in Mobile because of Mobile's proximity to New Orleans, and the telegram sent to the FBI in New Orleans the previous Sunday.

The CIA and the Warren Commission

The CIA had one of its former Directors on the Commission, Allen W. Dulles. When asked at the first official session how the CIA handled its informants, Dulles, explained that if Oswald would have been an informant to the CIA, he would expect the CIA to deny it, and he  would expect the FBI to deny it were Oswald an informant to the FBI. In fact, an agent of the CIA might choose to lie under oath in circumstances that were deemed necessary. [16] The Commission then understood that the US clandestine agencies were not likely to produce information that they chose not to produce. These "alleys" would simply be blind alleys to the Commission. Basically, the CIA was given a "pass" regarding the Commission's investigation. This would be but another example that the government has a very difficult time trying to honestly investigate itself. It would fall to independent researchers to try to fill this void. John Newman is one such independent  researcher who has written a seminal book on Oswald and the CIA. Newman laments the amount of government misconduct in lying to governmental investigative bodies and in effect, the obstruction of justice, in particular by the CIA. [17]

The Staff of the Warren Commission

Phillip Shenon has written a very interesting book about the Warren Commission. [18] He begins with his belief in their conclusions, and then writes a book that exposes a large number of the foibles of the Commission and its staff. As indicated earlier is this writing, such behavior  is essentially the essence of a true believer; [19] they are unswayed by any evidence that they are wrong.  In Bayesian terms, there is a probability of 1 (i.e., certainty) that  Oswald was the shooter, and a high probability there was no conspiracy, from a true believer's viewpoint. Today, belief in the single bullet theory seems concentrated in the mainstream press (often controlled by right-wing owners). In this regard, Upton Sinclair's comment in the book he wrote about his losing the  1934 California gubernatorial election seems appropriate: "It is difficult to get a man to understand something when his salary depends on him not understanding." [20]

The staff were mainly young lawyers, some newly graduated from law school and others not too advanced in their careers. Their individual mindsets might sometimes be at cross purposes with the Commissioners. One of the young, but somewhat experienced staff members (he worked as a prosecutor and had significant contact with the FBI) was Burt Griffin, 31, who came to the Commission with the expectancy that a conspiracy would be found. Eventually, Griffin's estimation of the FBI was that if a conspiracy had even a smattering of sophistication, it would elude the FBI. He felt that several of the younger staff members were "downright excited" to the possibility that the Commission would find a conspiracy. Griffin's assignment was writing a biography of Jack Ruby. [21]

J. Lee Rankin was the general counsel and was the liaison to both the Commission, and initially, to the FBI. Because of past workings with the FBI, Rankin thought a cordial relationship could be established with Director Hoover. Hoover dispelled him of this foolish notion early in their first meeting. To Hoover, the FBI had already done the study of the assassination; all the Commission had to do was to accept his December 9, 1963 final report. This view set Hoover at loggerheads with the Commission and particularly with Rankin. Rankin began to understand that  the FBI was to be the Commission's main investigative arm, an investigative arm that would not likely produce evidence to the Commission in disagreement with the FBI's already finished report. Rankin would be the final editor of the Commission's report at the staff level. The Commission, of course, was the final arbiter. The major writer of the staff report was David Slawson. Slawson, who graduated from Harvard Law School, chose to begin his law career in Denver as a protégé of  Byron "Whizzer" White, a well known All-American football star at the University of Colorado, two time All-Pro halfback in the NFL, and later, a Supreme Court justice appointed by President Kennedy. Slawson remained at the Denver law firm, Davis, Graham & Stubbs, after White's departure to the Supreme Court. Slawson would be on the team investigating a foreign conspiracy. Slawson  determined that two persons whom it would be important to interview in this regard were Sylvia Duran, who in 1963 was a secretary in the Cuban Embassy in Mexico City, and Sylvia Odio, a former Cuban living in Dallas. Earl Warren refused to allow an interview with Duran (supposedly because "We don't talk to Communists. You cannot trust a dedicated Communist to tell the truth, so what's the point?"). [22]  As to interviewing Sylvia Odio, that task would fall to Wesley James Liebeler, who managed to create a fiasco out of it. Slawson would find many impediments in attempting to find a foreign conspiracy. Slawson found out long after the Warren Commission had ended, that James Angleton of the CIA filtered the reports that went from the CIA to the Warren Commission. Further, Angleton swept down to Mexico City and removed all of Win Scott's (Mexico City CIA station chief) files and memoirs upon Scott's death in 1971. The files revealed just how much information was withheld from the Warren Commission. [23] Other later revelations were like bombshells- the CIA Mafia Castro plots, the revelation that Hoover suspected an Oswald impersonator, and that a file was kept by the FBI on Oswald, beginning in 1959. Slawson was calling for a new investigation of the JFK assassination. When Slawson's views were reported in the New York Times, he was called by James Angleton, then recently fired from the CIA. Angleton made it clear that he was monitoring negative information about the CIA in the media. [24]

Wesley James Liebeler was easily the most "different" of the staff members. A native North Dakotan, Liebeler was a graduate of the University of Chicago Law School. Unlike his liberal colleagues, Liebeler was strongly politically conservative (announcing his support for Barry Goldwater), but socially, considerably more to the libertine. Though married, he announced that he would be chasing skirts in D.C. and afterword, would brag about his "successes". He didn't mind violating rules. He would take classified reports with him on weekends, flying to his home in Maine. He would read them on the plane in full view of other passengers, one of whom reported him. Liebeler was given the assignment of interviewing Sylvia Odio in Dallas. Liebeler interviewed Odio in the offices of the United States Attorney. When her testimony was completed, Liebeler asked Odio out to dinner. They ate at the Sheraton hotel in downtown Dallas, where Liebeler was staying. A third person joined them, supposedly a lawyer for Marina Oswald. Liebeler told the other man, "If we do find that this is a conspiracy, you know that we are under orders from Chief Justice Warren to cover this thing up." [25] Liebeler invited Odio to his hotel room, supposedly to view some assassination pictures. There, he attempted to seduce her. Liebeler wrote a report on Oswald's motivation in the assassination as his part of the writing of the Warren Report. The Commission completely rejected his writing effort.  

Arlen Specter and the Single Bullet Theory

 

Specter was allowed to chose the area that he would investigate. He chose to focus on the last hours of President Kennedy's life, and the murder itself. Specter was to be the junior partner of Francis Adams, the former Commissioner of Police in New York City, who later became a very successful lawyer with his own firm in New York City. When the two men met, they agreed that the investigation should be quite quick, given that Oswald was so obviously guilty. As time dragged on, Adams absented himself from the Commission, leaving Specter on his own in the investigation. Specter got his idea for the single bullet theory partly out of necessity. One of the shots missed the limousine entirely, hitting the curb in front of the limousine, and cement from the curb injured James T. Tague. [26] Something on the order of the single bullet theory would be necessary, though such a scenario was, according to some accounts, already being considered by Specter.

Important parts of the evidentiary base were, however, not made available to the Warren Commission staff. Warren was opposed to having the autopsy photographs made available to the Warren Commission, apparently so that the photographs of the autopsy would not be made public; the photographs were apparently in the possession of Bobby Kennedy. The autopsy photographs were also not available to Commander James Humes M.D. for his review before his testimony to the Warren Commission. Instead, a navy sketch artist, who also did not have access to the autopsy photographs but only Humes' faulty memory of the wounds and his verbal description of them, sketched the wounds. Also to be taken into account was the decision to have Humes, almost totally lacking in autopsy experience with gunshot homicides, as the lead pathologist in the autopsy; you'd think the President of the United States would have deserved better. Perhaps Humes inexperience made him more malleable to the military brass in attendance at the autopsy. Wouldn't it have been better to have had a non-military pathologist who had considerable experience with gunshot homicide autopsies who could have ignored the brass in the audience, and cleared them out if they continued to put themselves into the proceedings? Surely, a more experienced pathologist would not have burned his notes written at the autopsy. An experienced pathologist would have insisted on probing the trajectory of the bullets in the president's body. And the missing of the wound in the president's throat could have been avoided by talking to Dr. Perry at Parkland Hospital in Dallas. Perhaps one of the first mistakes made with the autopsy was to hold it in a military hospital with military physicians doing the autopsy.

True Believers and the Warren Apologists

The book by Shenon is in some ways remarkable. He begins with a strong orientation to Oswald's guilt as a lone assassin and also guilty of Officer Tippet's murder. He then proceeds to show the foibles of the FBI, the CIA, but particularly of the Warren Commission and its staff. And yet he maintains his belief in Oswald's guilt despite all of the failures of the staff and the commissioners, in the manner of a true believer. As a research effort, the Warren Commission was an utter failure. The process was strictly advocacy research, but without an advocate for the other side. An advocacy approach without representation of the other side can have only one outcome, an unfairness so egregious that truth is the first casualty.              

Notes:

1. Wiesberg, H. & Lesar, J. (1974). Whitewash II: JFK Assassination Transcript. Frederick, MD: Authors. The Commission decided to stop having transcripts made of meetings as of  June 23. After that, only summaries were provided. See Shenon [5], pp. 425-426.

2.Willens, H.P. in Weisberg & Lesar, p. 25.

3. Phillips, L.D. (1974). Bayesian Analysis for Social Scientists. New York: Thomas Crowell.

 4. Ernest, B. (2013). The Girl on the Stairs. Gretna, LA: Pelican.

5. Shenon, P. (2013). A Cruel and Shocking Act: The Secret History of the Kennedy Assassination. New York: Henry Holt & Co., p. 452. Income at the level that Oswald was receiving during those two months could have supported a much higher lifestyle for him and his family. [Indeed Oswald was paid well over three times as much as this writer during that same time period, while teaching mathematics and  statistics at a junior college.] Perhaps Oswald was expected to appear to be almost penniless by his handlers.       

6. Armstrong, J. (2003). Harvey & Lee: How the CIA Framed Oswald. Arlington, TX: Quasar, p. 725.  

7. Haslam, E. (2007). Dr. Mary's Monkey: How the unsolved murder of a doctor, a secret laboratory in New Orleans and cancer-causing monkey viruses are linked to Lee Harvey Oswald, the JFK Assassination and Emerging Global Epidemics. Walterville, OR: Trine-Day,

p. 337.

8. Shenon, p. 80.

9.Williams, J.D. & Severson, G. (2000). Oswald in North Dakota? Part I. The Fourth Decade: A Journal of Research on the John F. Kennedy Assassination. 7,2, 21-26.

10. Shenon, pp. 77-79.

11. Wiesberg & Lesar, p. 26.

12. Marrs, J. (1989). Crossfire: The Plot that Killed Kennedy. New York: Carroll & Graf, pp. 235-237.

 13. Armstrong, p. 566.

 14. Williams, J.D. (2004). Was the FBI Searching for Oswald the Day Before the Assassination? 

  Dealey Plaza Echo, 8, 2, 46-52.

 15. Ibid.

16. Wiesberg & Lesar, p. 52.

17. Newman, J. (1995). Oswald and the CIA. New York: Carroll & Graf.

18. Shenon.

19. Hoffer, E. (1951). The True Believer: Thoughts on the Nature of Mass Movements. New    York: Harper & Row

 20. Sinclair, U. (1934, 1994). I, Candidate for Governor, and How I Got Licked. Berkeley: U of California Press.

 21. Shenon, p. 124. 

 22. Ibid.,  p. 311.

 23. Ibid., p. 546.

 24. Ibid., pp. 537-538.

 25. Ibid., p. 417.

 26. Tague, J.T. (2003). Truth Withheld: Why We will never Know the Truth about the  JFK     Assassination. Dallas: Excel Digital Press. An unnamed member of the staff lawyers for the Warren Commission.

Published inThe Dealey Plaza Echo (2016) 19,1, 14-19.