Impossible: The Case Against Lee Harvey Oswald (40 page)

Does this photograph represent the shells in their actual position? Not according to Luke Mooney’s testimony (3 H 286):
38

That is a slight problem, which is slightly amplified by a second problem: there is no date which
appears
in the photograph
, nor any identifying information regarding the photographer which
appears in the photograph
. Given this missing information, the exhibit could have been a “re-creation” (read:
re-invention
) of the way the shells were
supposed to
have been located on the floor, a photograph that could have been taken anywhere from 2 to 8 days, or even more, after November 22 — and that would be
more than
a slight problem, because the photograph would not be authentic from the standpoint of
Federal Rule Of Evidence
901 (a), which you will recall provides as follows:

If the photograph was a “re-invention”, then it would not be considered
real
evidence, but
demonstrative
evidence, evidence of a lower quality because it would not be the thing itself but rather something which purported to resemble the thing itself (like diagrams, models, simulations, etc.). However, the claim by the officers was that this
was
real evidence, but if in fact it was
only
demonstrative evidence, then to that extent the photograph would be
inauthentic
.

If you were a judge, how would
you
rule on the admissibility of a photograph officers claimed was
real
when you found out later it was only
demonstrative
?

Now, you might think it implausible that
any
of the photographs exhibited before the Warren Commission would be re-creations, but if there is nothing else we learn from the Kennedy case, we at least will learn this: “implausible” is sometimes just a synonym for “certain,” as proven by this
evidence
of one such reconstruction (4 H 269):
39

So, we know from this testimony that
not every
photograph exhibited by the Warren Commission as a record of the scene on November 22 was
taken
on November 22 (not to mention that not every photograph exhibited by the Warren Commission was of the genuine reality)! Now, considering the man-hours and set-up time involved, do we really believe that only
one
photograph was taken on November 25, or even some later date? Isn’t it entirely fair to speculate that
other
photographs were taken on November 25 (or later), not just one, and that perhaps
some
,
most
, or
all
of these November 25 (or later) photos were “reconstructions” as well? If that was the case, and CE 510 was one of those photos, then all that is needed is for someone to testify that CE 510 was
actually
taken on November 22, and who would be able to prove them wrong?

Lacking the authenticating information in the photograph itself by which the legitimacy of the photograph could be substantiated, and considering the testimony of Mooney that the shells were in a slightly different position from what he
claimed
he observed, the validity of this photograph must be seen as suspect, especially in light of the evidence we have just seen (and are about to see).

OK, if identifying information is lacking in the photo, what about the testimony of Mooney and others that they did
in fact
find
three
shells on the scene? That is
direct
, not
circumstantial
evidence. Well, one simple explanation — apart from the obvious possibility that they are mistaken, and two additional possibilities we will discuss later — is that
they aren’t telling the truth
.

To those who may find this difficult to believe, we can take the word of Vincent Bugliosi that “
police are human beings like everyone else, and a few have been known, in their effort to be looked upon as heroes, not only to magnify what they did or saw, but actually to make false claims
. . .” (RH 889; emphasis supplied). Earlier in his book, Bugliosi also advises us (in the context of how defendants seek to establish their innocence) that “
many times . . . evidence is fabricated
” (RH 827; emphasis supplied), but of course it can work the other way as well, and is more likely to, since the police have custody over the evidence, and as a prosecutor with decades of experience, and one who knows that police are capable of making false claims, Bugliosi should know all about that.

We can also add to Bugliosi’s rationale for why police would make false claims that perhaps they were
under pressure
to make these claims. With the media broadcasting the “Oswald as lone assassin” story 24/7 month after month after November 22, the pressure on the officers to give the “correct” testimony must have been intense, not to mention the fact that in some of these cases, their jobs might have been on the line.

So, if the photographs & testimony are potentially suspect, is there any other way to verify the existence (or lack thereof) of the third shell? Yes, by using a key technique in police investigation used to document the chain of custody. Using this technique, one can literally follow the virtual ownership of a piece of evidence throughout its lifespan.

This technique is the
marking of items of evidence at the scene of the crime — and at the time of discovery — by those persons who have uncovered that evidence
. For example, at the time and place a bullet is found, the initials and/or name of the finder need to be scratched into the metal using a tool designed for the purpose, which at the time of the Kennedy assassination was a
diamond point pencil
. In fact, the very
existence
of such a specialized tool should tell you something about the ubiquity of a standard process for identifying evidence throughout the criminal justice system in United States of America in the 1960s (and today, it might be added), and that in turn should tell you something about the
importance
of this process. In the case of the Kennedy assassination, which up to that time was certainly the most important criminal prosecution of the 20th century in the United States, we can be sure that everyone handling the evidence, especially before Oswald was murdered and a trial was imminent, was well aware that they needed to get all their SOP ducks in a row, and any
variations
from this practice would be very telling indeed.

To illustrate how this technique works using a very simple example, let’s assume that a bullet was found at the scene of the crime, and the first person to find the bullet was Andy. Subsequently, Andy passed it off to Brian, and then Brian later passed it off to Charlie. At each transition point, the respective parties were to carve their initials on the bullet with the diamond point pencil, Andy using “A,” Brian using “B,” and Charlie using “C.” If that were the case, and the protocol were followed, the bullet would look something like the following:

Later, at the trial, Andy, Brian, and Charlie would be brought in to testify that the initials on the bullet were theirs and theirs alone (bringing along any ancillary materials such as receipts, etc., which described in detail the item in question). And in this “happy path” scenario, the chain of custody for this particular bullet would be established.

Naturally, this could be extended to any number of parties: if we suppose that two additional parties, David and Edward, were also transferred the bullet later in time, then we would expect to see this:

And that’s the happy path for parties A through E. But not all paths are happy, and that’s when the brains of the citizens in the jury box need to go on red alert. Imagine that Andy, Brian, Charlie, David, and Edward were the key personnel in the chain of custody sequence. If so, we know what the bullet is supposed to look like. But, suppose instead the bullet offered into evidence at trial revealed only
these
initials: