Impossible: The Case Against Lee Harvey Oswald (14 page)

Defense Evidence

1. Jim became an Eagle Scout at the age of 15.
   

A printing press . . . library books revealing intent . . . fingerprints . . . video . . . and to top it all off, a
confession
. . . evidence doesn’t get much better than this!

Still, we do need to run our evidence through the flowchart just to be sure. Our first decision point arises when we ask the question “
is the evidence related to the charge
comprehensive
?” That is to say, do we have
every
piece of evidence — both for prosecution and defense — we need to make an informed decision regarding the confidence level? For the purposes of this hypothetical scenario, we will assume that we have all of the relevant evidence (even though it appears that the defense was, perhaps understandably, AWOL), and then proceed to the next node in our flowchart.

Our second decision point is perhaps the most important: “
is the evidence for the prosecution
credible
?” For example, were the books in Jim’s library
actually
Jim’s books, or did someone plant them there? For the purposes of this evaluation, we will assume that they were his.

To the next decision point: we have gathered all the available evidence, and have stipulated that the evidence for the prosecution is credible, and when we examine that evidence we find that the evidence for the prosecution taken together clearly supports the charge, so therefore we have successfully answered the question “
is the evidence for the prosecution
sufficient
?
”, which means that the prosecution has presented enough positive evidence to move to the next step.

Our final decision point is
“is the evidence related to the charge
consistent
?”
Since we have all the relevant evidence, and all the relevant evidence for the prosecution passes the “smell test,” and the evidence presented by the prosecution is sufficient to demonstrate the charge, we now subject the defense evidence to the same credibility tests, and once we determine it passes, we then need to see if
all
the individual pieces of evidence (not just that presented by the prosecution) are consistent with each other (that is to say, that each individual piece of evidence provided by prosecution and defense tells the same story). And in this example, we find out that for the most part it does, although we do have one small piece of evidence (provided by the defense) that does not tell the same story, which is that 35 years before the crime was committed, Jim became an Eagle Scout, and if we assume that all Eagle Scouts are generally of sound moral character, this evidence is somewhat inconsistent.

However, this minor inconsistency is easily dealt with since the inconsistent occurrence occurred 3.5 decades prior to the commission of the crime, and the character of a person can easily change over that period of time. If Jim were 18 years old, the inconsistency of this evidence would present more problems, although that inconsistency would ultimately be defeated by the overwhelming evidence for the charge, and the melancholy recognition that not every Eagle Scout is necessarily 100% pure.

Having run our evidence through these four filters, we find that the evidence makes it through for the most part with ease.

So, now we have the basis for assigning a confidence level, which, according to our flowchart, will be greater than 95%. But what precise number do we assign? Most people, when asked, would now say that it is 100% certain that Jim is guilty, but even if this is not the case, we can certainly say that the confidence level at the high end is above 99%, approaching
Six Sigma
levels. We have all the evidence we need, every item of evidence is legitimate, every item of evidence provided by the prosecution (taken as a whole) is sufficient to prove the charge, and there is no evidence provided by the defense (or prosecution) which substantively contradicts the charge.

Of course, there is always room for a little doubt, especially given Jim’s Eagle Scout achievement, so we can reduce our rating somewhat at the lower end of our range. Given this, let’s assign a confidence level range with a minimum value of 99, and a maximum value of 99.99 (it is hard to be 100% sure of anything!), which results in the following table:

We could average these numbers to give us one number to work with, but for now, let’s just stick with the range — a prosecutor’s dream.
Our confidence level for the charge is solidly above 95%, therefore Jim is “guilty beyond a reasonable doubt
.”

Now let’s take a different scenario, an example of an entirely different sort which will give us a
low
confidence level.

THE CHARGE
Jim has been charged with the crime of
printing
counterfeit bills. The prosecution and defense have introduced the following evidence into the record:

EVIDENCE FOR THE CHARGE
Prosecution Evidence

1. Jim tried to pay for a gaming system with counterfeit notes.
   

Defense Evidence

1. Jim became an Eagle Scout at the age of 15.
   

That’s it. That’s the evidence. So we look at our first criteria, and then ask ourselves the first question which follows from that criteria,
“is the evidence related to the charge
comprehensive
?” We will assume that it is all the evidence that could reasonably be gathered (meager though it may be), and proceed to the next decision point.

Our next question is “
is the evidence for the prosecution
credible
?” And the answer is “yes.” Jim actually did pass the notes, and he was an Eagle Scout.

Our next question is “
is the evidence for the prosecution
sufficient
?” And at this point the red light flashes: the answer clearly is “no!” Jim has been charged with the crime of
printing
counterfeit bills, not
passing
counterfeit bills! And, in fact, no other evidence has been produced for the charge; no printing press, no videotape security camera record, no confession, no nothing. A skimpy record that screams “inadequate.”

Notice that because the evidence for the prosecution (who has the burden of proof) is not sufficient, we do not even need to move to our final decision point. If the evidence for the prosecution is not sufficient as it stands, we obviously do not need to worry about whether Jim actually was an Eagle Scout, nor whether that evidence is consistent with Jim’s Eagle Scout achievement (or any other evidence).

At this point, we now are shuttled down to the end point in the flowchart that says that we should assign a confidence level lower than 95% to this charge. But what specific confidence level is that? Here, there is more room for disagreement. Some might go as low as 1%, others might go as high as 15%, but your author’s assessment is as follows:

If you disagree with this assessment, that is fine, and to be expected. Note, however, that relative to the end goal your assessment is probably not
all that far
away
from mine, and I think it’s safe to say that
both
of our assessments, even though they might be somewhat divergent, are still
well short
of the 95% threshold required; accordingly, even though we disagree as to the exact numbers, we both agree that Jim must be found “not guilty” of this charge, which from the due process perspective is all that counts.

Okay, enough with the elementary examples, prototypes of easy decisions to illustrate how the breakout flow paradigm works. Now let’s graduate to a higher level of analysis and muddy the waters somewhat with a more complex example.

THE CHARGE
Jim has been charged with the crime of
printing
counterfeit bills. The prosecution and defense have introduced the following evidence into the record:

EVIDENCE FOR THE CHARGE
Prosecution Evidence

1. Jim tried to pay for a gaming system with counterfeit notes.
   
2. The police found a printing press in Jim’s house, with $7,500 in freshly minted bills (with identical serial numbers) next to the printing press.
   
3. Jim’s fingerprints were on the printing press. And the money.
   

Defense Evidence

1. A security camera in Jim’s house videotaped a person (unknown to Jim, according to Jim’s testimony) bringing the printing press into Jim’s house while Jim was on vacation, and also videotaped that person printing $7,500 worth of counterfeit bills. Jim is seen on the videotape, upon returning from vacation, apparently surprised that the printing press is in his house. He touches the printing press, and when he sees the money next to the printing press, picks the money up, and then puts some of it into his wallet.
   
2. Jim’s explains to the police after he is arrested for passing counterfeit bills that he had hired a housesitting service to watch his house while he was on vacation, and, unknown to Jim, the person hired to do the housesitting used Jim’s home to set up a criminal enterprise.
   

More complex, but once run through the four decision points, a clear answer should still emerge. Let us assume, for the purposes of this discussion, that the first two decision points are answered in the affirmative; this is
all
the evidence, and the prosecution’s evidence is
credible
. But now we have to pause at our third decision point. Here, we again need only focus on the prosecution’s evidence, and ask the question, if this was the
only
evidence offered in this case, would we be 95% confident that the charge was true? If you answer “no,” you are done, but if you answer “yes,” you still have one more hurdle, and it’s a big one. Let’s answer “yes,” and see why.

We analyze our defense evidence, determine that it is credible, and now ask, “Is the evidence related to the charge
consistent
?” We find out that the answer is
no
— which changes
everything
!

Our confidence level for this charge, which might have been 97% or 98% after analyzing just the first three items, now has to be
reduced
because of this contradictory video evidence, and, based on the impact of this evidence (which
positively refutes
the charge), reduced to
a very great extent
. Again, there is going to be some room for disagreement as to how much the confidence level of the charge has been reduced, but that’s what jurors are for. If you were a juror, what would you say? Feel free to fill in the blanks!

To my way of thinking, the video is a sledgehammer that shatters the prosecution’s case. Therefore, my own personal view (relevant were I a prospective juror) is that, based on the evidence offered by the prosecution and defense (assuming both are equally credible), my
minimum
confidence level for the charge would be 0%, and my
maximum
confidence level for the charge would be 5% (based on the exceptionally slight possibility that the video had been tampered with). Contrast that evaluation with yours.