Impossible: The Case Against Lee Harvey Oswald (48 page)

Now, that is something!

Remember, we started this section of the chapter simply trying to show that only one of the three cartridge cases claimed to have been found in the Texas School Book Depository (and linked with Oswald’s rifle) had an illegitimate origin, but surprise of surprises, we now find that
all
of the empty cartridge cases have a broken chain of title, and for that reason, cannot be used as evidence in this case! For The Case Against Oswald, that’s cataclysmic, because of all the evidence, more than any other, this is the evidence that MUST be valid for the case to proceed.

Suddenly, with a
POOF!
, the case against Oswald has vanished in a puff of smoke!

Faced with this dismal reality, what argument can the defenders of the Warren Commission possibly make in response?

Well, one avenue would be to attempt to discredit the testimony of J.C. Day, who (for these keepers of the “Oswald alone did it” flame) provided information about as appetizing as an anthrax cocktail. Discredit Day, and you provide some hope, however small, of salvaging a completely sunken prosecution.

This avenue of attack would proceed by attempting to show that Day was either mistaken, or lying, when he stated that “G.D” was on the shell. Given the record-setting number of flip-flops, memory lapses, misidentifications, protocol violations, and narrative shifts found in the Day testimony, this would be trivially easy to do. (Both politics and Kennedy assassination research make strange bedfellows!)

As luck would have it, these newly-inducted members of the Oswald Defense team have an additional piece of documentary evidence on their side, a letter drafted to David Belin by Day the day after the testimony was given, which indicates that indeed, the marks on at least one of the shells, insofar as “GD” is concerned, are not necessarily legitimate:
63

The new line of argument would go something like this: “Oh, Day was just mistaken, the initials that he claimed to be Doughty’s were actually someone else’s, like Vince Drain’s.” This line of argument would conveniently forget that there is a story behind those GD initials, so if those in fact were not the initials of Doughty, the story would obviously have been illegitimate.

This potential argument was not substantiated by testimony in any event, because just two months after this letter was written, Day claimed that
Doughty was present with him
when he was verifying the initials
, and Doughty must have suddenly had a memory/vision recall that completely foreclosed this new hypothesis as a possibility (7 H 402):
64

So, this latter testimony eliminates as a source of error a confusion of letters: with Doughty present, and his ostensible affirmation of the identification of initials using a magnifying glass under a good light, we can eliminate the possibility of any other individual’s initials being on the bullet (again, based on
this
testimony).

Still, the letter does give room for doubt regarding the legitimacy of initials that actually were there, given the discrepancy between that letter and the testimony. Since the Warren Commission would have been well aware of a letter received by Assistant Counsel David Belin (if it was sent), you would think that the Commission would have called Captain George Doughty as a witness to testify to the authenticity of his initials, or at the very least, provide an affidavit regarding the same. In fact, regardless of whether or not they received the letter, to legitimate the lineage of the initials they would have
had
to have done one or the other.

They didn’t!

That’s right . . . search the over 20,000 pages of hearings and exhibits of the Warren Commission for
an affidavit or testimony by Doughty that the initials on the shell were his
, and you will come up short, as proven by the upcoming screen capture of the index to the Warren Commission hearings. Note that George Doughty, unlike Kenneth Dowe whose name is immediately below his, has no “Testimony” referenced (15 H 764).
65
That’s because
there isn’t any
:

The only relevant references to Doughty — by Day, of all people — are the ones you have seen reproduced in this book.

In addition, you can search the index provided by the House Select Committee On Assassinations in its report of March 29, 1979, starting on page 573 of the
Final Report
, and you will find no reference to any testimony or affidavit by Doughty (HSCA Report 573):
66

The author attempted to verify this omission by indexing not only the final HSCA report but also all of its appendices using
Adobe Acrobat Professional
10
, and found
not even one reference to Doughty
.

This is an ominous sign for the legitimacy of the “G.D.” story; when Doughty is not called as a witness, nor asked to submit an affidavit of confirmation, especially in light of a letter to the Assistant Counsel of the Warren Commission that the testimony provided was most likely incorrect, one can be forgiven for assuming that the reason Doughty was not given the opportunity to verify this story was because, in fact, he
would not
verify the story. This would provide a very telling indication that the “evidence” that was offered by Day (in the form of testimony and an affidavit) did not rise to the level of proof, and therefore failed to establish the fact in dispute. Bugliosi elucidated this distinction for the non-lawyers among us
(
RH 827; emphasis supplied):

[E]vidence is not synonymous with proof. Evidence is that which is offered (legitimate or not, whether it is believed or not) to prove a fact in dispute. Proof, on the other hand, occurs when the trier of fact is satisfied that the fact in dispute has been established by the evidence. In other words,
if the evidence offered proves the fact for which it is offered, it is proof. If it doesn’t prove the fact, it isn’t.

This insight into the
binary
nature of American jurisprudence by the famed prosecutor provides the foundation for concluding that The Case Against Lee Harvey Oswald has
a key deductive flaw
. It brings us about full circle to the essential point we discussed earlier in this book: in the United States of America, a defendant is innocent until proven guilty. In addition, and as a corollary to this (with reference to the Bugliosi point above), no proposition or element is proven without evidence that actually “proves the fact for which it is offered,” as Bugliosi termed it. So, not only is the confidence level for the guilt of a defendant
zero
before evidence is offered, likewise is the confidence level for a fact in dispute (either proposition or element) also
zero
before evidence is offered. And, if the evidence offered is
insufficient
to prove the fact, then the confidence level for that fact, from the legal perspective,
remains
zero
.

When we look at the testimony of Day, we see the inescapable problem for those who maintain the conclusion that “Lee Harvey Oswald was the sole assassin of John Fitzgerald Kennedy”:

Empty shells were found on the sixth floor of the Texas School Book Depository. Shells exhibited by the Warren Commission were tied to Oswald’s rifle.
But were the shells found on the sixth floor the same shells exhibited by the Warren Commission?
That’s the million-dollar question.

Now, the
one and only
person who can actually tie the cartridge cases discovered on the floor of theTexas School Book Depository with the cartridge cases exhibited by the Warren Commission (the ones fired from Oswald’s rifle) is
Day
, the person whose name was on the shells, the person who by taking possession of those shells was the one who was supposed to mark them at the scene.

And yet, we have seen that Day’s testimony
not only fails to prove the fact for which it is offered, it actually proves the
contrary
! Since this testimony does in fact prove the contrary, the only avenue left open for the sponsors of the “Oswald as lone assassin” conclusion is to completely discredit the testimony of Day, to essentially throw it out as worthless. If they do that, however, that leads to the following inevitable conclusion: