Impossible: The Case Against Lee Harvey Oswald (42 page)

So, in this version of the shell game, 2 of the shells
were
marked, but only after they had been transported in an
unsealed
envelope, an envelope that was opened
before
Day had a chance to mark the shells (and, in a total departure from the chain of custody concept, giving someone else the opportunity to substitute different shells into the envelope)!

For those readers rubbing their eyes in disbelief, Day reiterated his testimony (4 H 256):
45

The envelope not only was not
sealed
, its contents were just barely identified adequately . . . perhaps (4 H 253):
46

But were they identified
at the time of delivery
to Sims? No, there was no writing on the envelope identifying the contents when it was supposedly given to Sims to be transferred to the Identification Bureau! (4 H 254):
47

So, in this version of the story,
three
shells were earlier in the afternoon sent to the Identification Bureau of the homicide division in an
unmarked
and
unsealed
envelope, the homicide division retained one, and then returned
two
for subsequent delivery to the FBI (Drain making his first appearance at 10:00 pm), which Day proceeded to mark, along with the envelope said to have conveyed them.

Now,
which
shells were delivered to Drain in the envelope? The shells identified as Commission Exhibits
545
and
544
. Here is the testimony related to CE
545
, the first shell identified as being in the envelope:
48

Notice here that Day, whose memory up to this point has been something short of razor-sharp, remembers clearly making the mark, using a diamond point pencil.

The next testimony refers to CE
544
, the other shell that was in the envelope:
49

And now the final testimony, related to last empty shell, Exhibit
543
, the shell which was unmarked — well, at least by Day (4 H 255):
50

So, the verdict is in: CE
543
did
not
have Day’s mark on it. In other words, a vital link in the chain of custody had been severed, and
precisely on the shell which all the documentary evidence we have seen so far indicates never existed before November 27
.

However, the shell
was
stated to have the initials “GD” on it, and the stipulated reason these initials were on the shell is that it was
not
sent to Washington like the other two. This provides a coherent story for the identification which is missing (“Day”) but which ought to be present.

To help you keep track of just what is going on, the story just told can be summarized with the following model derived from Day’s April 22 testimony:

Here is how to read this model (designed to give you a bird’s-eye view of testimony at-a-glance):

From left to right, you see that on November 22 at 10 p.m., 2 shells were received by Day. One shell, identified as CE 543, with the initials “GD”, had been sent to Fritz earlier. The two other shells CE 544 and 545, both with the initials “Day” that were scratched on the shells at 10 p.m., were subsequently sent to Washington.

Unfortunately, this explanation, perhaps thought to be by its creators rather innocuous on the surface, and a credible explanation for a key gap in the chain of custody, turns out to be an absolute disaster for the prosecution, for the following six reasons:

1. Notwithstanding the explanation, Day’s name
   still
   was supposed to be scratched on
   3
   shells, not
   2
   . This testimony, if true, simply verifies what all the other evidence has been telling us, that only
   2
   shells were discovered.
   
2. Evidence was handled
   inconsistently
   ; the live round was marked on the scene, the other shells were not, indicating a key lapse in protocol.
   
3. Day not only reverses his testimony (shells
   were
   marked at the scene . . . no, they actually
   weren’t
   ), but he reverses it in
   the wrong direction
   ; it not only indicates that his testimony inherently lacks credibility, but by testifying that the shells were not marked on the scene, he provides testimony to not only his poor memory but also to his failure to follow protocol.
   
4. The marks Day reportedly put on the shells were put on shells which were in an
   unsealed
   (and
   unmarked
   ) envelope; considering Day’s exceptionally poor memory, he could not possibly be reliably considered to have identified these shells; since the envelope was not sealed or marked (two other egregious protocol violations), other shells could have been placed in the envelope without Day’s knowledge, and so “identifying” them later would have been pointless.
   
5. Day’s testimony that 3 shells were turned over to
   Sims
   of the DPD is contradicted by the CSS form that proves that 2 shells were turned over to
   Brown
   of the FBI.
   
6. Most importantly, this testimony
   proves
   that the Fritz story is, without question, completely false
   .
   Indeed, this testimony is a
   hydrogen bomb
   that completely obliterates the validity of the chain of custody that connects shells that were found on the sixth floor with shells that were fired from Oswald’s rifle.