Impossible: The Case Against Lee Harvey Oswald (30 page)

As noted in the previous chapter, propositions can be divided into
subpropositions,
to be subsequently referred to more elegantly in this book as
elements
(note to attorneys: this usage, as a synonym for subproposition, is more
fact
-oriented than the
law
-oriented manner in which you are used to hearing the term).

As used in this book, the term
element
refers to a fact subsidiary to the proposition which
must
be true for the proposition to be true.

Suppose you wanted to prove the general conclusion “men have walked on the moon.” You could start by creating this proposition:

“
The first man walked on the moon on July 20, 1969.
”

You could then analyze the proposition and determine the necessary subsidiary factual assumptions (i.e. elements) which also have to be true for the proposition to be considered true. Some of these are as follows:

• “
  America had the capacity to launch a rocket into outer space by July 20, 1969.
  ”
  
• “
  America did in fact launch a rocket into outer space before July 20, 1969.
  ”
  
• “The rocket launched into outer space by America before July 20, 1969 was capable of carrying and sustaining astronauts.”
  
• “
  The capacity to keep a man alive on the moon had been achieved before July 20, 1969.
  ”
  

At that point, you could choose one of the elements (for example, “
America had the capacity to launch a rocket into outer space by July 20, 1969.
”), and gather all the relevant evidence, whether it supports or contradicts your element. This evidence could be comprised of the following evidence types:

• Witness testimony (e.g., witnesses who saw a rocket take off from the launchpad, testimony of astronauts, testimony of engineers in the control room, etc.)
  
• Photographs (of the launching pad, taken from outer space, taken on the moon, etc.)
  
• Audio records
  
• Taped video
  
• Physical Evidence
  
• Documentation (e.g., internal memoranda prepared by NASA)
  

You would then implement the same procedure for all the other elements. As would soon readily become apparent, a massive amount of evidence supporting the elements would be gathered, and the sheer weight of this evidence, along with its quality and consistency, would demonstrate the truth of the elements, and therefore the proposition, beyond a reasonable doubt.

Note that with reference to the proposition “the first man walked on the moon on July 20, 1969,” a number of subpropositions could be formulated that are
not
necessary, and are therefore
not
elements. For example, “
America had the greatest desire of any country to put a man on the moon by July 20, 1969.
” While this might have been true, even if false, it would not reduce the confidence level of the proposition. This would
not
be true of the elements: if even
one
of them was false, then the proposition would be
disproven
.

This same general approach is especially necessitated in law, which requires the meticulous organization of facts into categories to add clarity to the case (“WTO Case Review 2004”, 22 Ariz. J. Int’l & Comp. Law 99 at 215; emphasis supplied):

[A] judge ought not to fail at the task of organizing the elements of a case into widely understood cognitive categories, and the starting point of any case, in any country, at any time, is the category of “Facts.” A statement at the outset of the opinion of what exactly transpired yields a document that is more by virtue of its clarity and efficiency. In turn, the interest of justice — for the parties to the case and for lawyers advising clients in the future based on the jurisprudence of the case — is served.

With this proviso in mind, let’s once again look at the factual propositions comprising The Case Against Lee Harvey Oswald:

THE CASE AGAINST LEE HARVEY OSWALD

LEGAL ASSUMPTION
All the evidence in The Case Against Lee Harvey Oswald stipulated as admissible is
authentic
. This admissible evidentiary record is
comprehensive
,
credible
,
sufficient
, and
consistent
to the extent that it precludes reasonable doubt regarding
both
of the following propositions regarding the assassination of President John F. Kennedy:

PROPOSITION ONE
There was one and only one gunman in Dealey Plaza on November 22, 1963, and that gunman was neither aided nor abetted by any person or group.

PROPOSITION TWO
Lee Harvey Oswald was the lone gunman in Dealey Plaza on November 22, 1963.

CONCLUSION
Therefore, it is proven beyond a reasonable doubt that Lee Harvey Oswald fired the shot that killed President John F. Kennedy.

The validity of the
legal assumption
will be determined as we analyze the evidence adduced for the propositions. Nor do we have to provide separate evidence for the
conclusion
; if the legal assumption and the propositions are true, then the conclusion will
automatically
be true via the laws of deductive reasoning (if there is only
one
gunman, and Oswald
is
that gunman, then obviously Oswald fired the fatal shot). Consequently, all we need to do for each proposition is to determine its component elements, and then
analyze
the evidence justifying each of the elements.

At the risk of being redundant,
all
of the elements must be considered as true for the proposition to be supported. “True,” in this case, must be seen in the context of reasonable doubt, which of course is a primary component of our legal assumption. Again, as noted earlier (and worth repeating), if there is reasonable doubt regarding the truth of even
one
of the elements (that is to say, if there is a confidence level of less than 95% for
any one
element), then the proposition
itself
cannot be proven beyond a reasonable doubt (that is to say, there is a confidence level of less than 95% for the proposition).

This primary directive related to
every
element having to achieve the threshold is drawn directly from the key holding determined by the Supreme Court in the
Winship
opinion discussed earlier (
In Re Winship
, 397 US 358 at 364 (1970); emphasis supplied):

Lest there remain any doubt about the constitutional stature of the reasonable doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of
every
fact necessary to constitute the crime
with which he is charged.

Note that the Supreme Court is unequivocal on this point: proof beyond a reasonable doubt must be achieved for
every
fact necessary to constitute the crime:
every
element of
every
proposition.

In fact, this is the
minimum
criterion to be deployed. From a probability assessment perspective, the correct procedure is to actually
multiply
the confidence level of the elements to arrive at the ultimate confidence level of the proposition. Thus, the Supreme Court directive would posit a
necessary
, but not a
sufficient
condition. This point will be discussed at length further in this book when we analyze
Element One
of
Proposition One
in detail.

With this critical protocol of due process in mind, let us look at the
factual
elements comprising
Proposition One
.

PROPOSITION ONE
There was one and only one gunman in Dealey Plaza on November 22, 1963, and that gunman was neither aided nor abetted by any person or group.

ELEMENT ONE
Exactly three shots were fired from the sixth-floor southeast window of the Texas School Book Depository at Dealey Plaza on November 22, 1963 — no more, no less — and the three shells found on the floor of the Depository — in the possession of the Warren Commission — were fired from Lee Harvey Oswald’s rifle, to the exclusion of all other weapons in the world.

ELEMENT TWO
All of the shots fired at Dealey Plaza on November 22, 1963 were fired from the sixth-floor southeast window of the Texas School Book Depository, and from no other location.

ELEMENT THREE
Lee Harvey Oswald was the
only
person on the sixth floor of the Texas School Book Depository at 12:30 p.m. on November 22, 1963.

ELEMENT FOUR
The shots fired at Dealey Plaza on November 22, 1963 were fired from no other weapons besides Lee Harvey Oswald’s Mannlicher-Carcano.

ELEMENT FIVE
A rifleman could plausibly have fired 3 separate shots from the Mannlicher-Carcano within the elapsed time of the shooting and corresponding with the keyframes of the Zapruder film.

ELEMENT SIX
There was one and only one bullet which struck Governor Connally, and that bullet (identified as CE 399) first passed through the body of President Kennedy.

Remember, these factual elements are all
necessary —
they
must
be true for the proposition to be true. For most, the necessity of these elements will be obvious, but there is no harm in a little analytical redundancy to achieve clarity.

ELEMENT ONE

Exactly three shots were fired from the sixth-floor southeast window of the Texas School Book Depository at Dealey Plaza on November 22, 1963 — no more, no less — and the three shells found on the floor of the Depository — in the possession of the Warren Commission — were fired from Lee Harvey Oswald’s rifle, to the exclusion of all other weapons in the world.

The Warren Commission stated that
only
three shots were fired in Dealey Plaza. Indeed, no more than three cartridges were ever claimed to have been found on the sixth floor of the Texas School Book Depository. However, if there is other evidence that demonstrates that there were
more
than three shots fired, or evidence that Oswald fired
fewer
than three shots, then obviously there was more than one gunman, and the proposition is disproven.

Vincent Bugliosi, in
Reclaiming History
, agreed with the logic of this line of analysis in his discussion of the assassination of Robert Kennedy, and noted the importance of ancillary evidence in making a determination regarding the number of shots fired, such as additional bullet holes. As he stated in relation to that case (RH Endnotes 551):

[A]ny bullet holes observed in addition to those accounted for . . . would constitute evidence of a second gun being fired.

Bugliosi reiterated the point regarding statements he received on the number of bullets fired (including one from Thomas Noguchi, the coroner of Los Angeles) (RH Endnotes 551):

[I]n the absence of a logical explanation, these statements, by simple arithmetic, add up to too many bullets and therefore, the probability of a second gun.