Legal considerations of this case study

When I first started looking deeper into the legal considerations of this case
I used the following as a base to work from on evidence dealing with the case,
since Scobey was a staff member to the WC, I thought it had insight.

No no comments on the work, but I feel it might be of interest to revisit here...jko

A Lawyer's Notes on the Warren Commission Report A Lawyer’s Notes on the Warren
Commission Report
by Alfredda Scobey • Law Assistant to the Court of Appeals of Georgia
American Bar Association Journal, January 1965, Vol. 51, pages 39–43.

    Miss Scobey, who was a member of the staff of the President’s Commission on
the Assassination of President Kennedy, writes that the report of the Commission
represents an unusual synthesis of historical, investigative and legal aspects.
She views the testimony amassed by the Commission from the standpoint of the
lawyer who might undertake the defense of Lee Harvey Oswald, had he lived. What
she discovers makes a fascinating story.
    The President’s Commission on the Assassination of President Kennedy, which
was appointed by President Johnson on November 30, 1963, consisted of seven
persons—the Chief Justice of the United States, who was designated Chairman, two
members of the Senate, two members of the House of Representatives, and two
members from private life.
    The Senators were Richard B. Russell of Georgia and John Sherman Cooper of
Kentucky. The Representatives were Hale Boggs of Louisiana and Gerald R. Ford of
Michigan. All four are lawyers.
    The members from private life were Allen W. Dulles, a former member of the
United States Diplomatic Service and former Director of the Central Intelligence
Agency, and John J. McCloy, a former Assistant Secretary of war, a former
President of the World Bank, and former United States High Commissioner for
Germany. Both Mr. Dulles and Mr. McCloy are lawyers.
    J. Lee Rankin, former Solicitor General, served as General Counsel to the
Commission, and he was aided by fourteen assistant counsel and twelve other
staff members.
    At least three marginal comments are relevant to the published report of the
Warren Commission.[1] In the first place it accomplished its original purpose:
by assembling and evaluating all ascertainable facts relating to the
assassination of President Kennedy it has to a large extent laid the ghost of
rumor, both here and abroad. Second, it has made readily available as to a
single murder a mass of evidentiary material of greater magnitude than ever
before, which will prove to be a happy hunting ground for law students for years
to come. Third, it has lent form, depth and historical perspective to the event
in a way that catches some of the larger implications of our national society
and its Executive Officer, whoever he may be.

The Report Has Historical Significance
      Historical consciousness is a late and significant product of human
civilization. Only in the last couple of centuries has there been any real
philosophical analysis of specific forms of historical thought or comprehension
of historical structure. The nature of man has been a subject of investigation
from the days of the Stoic philosophers; contemporary interpretation is well
summed up in the aphorism of Ortega y Gasset: “Man has no nature, what he has is
history.”[2] Cassirer maintained that “man is not a rational animal but a
symbolic animal”;[3] that is, the forms of his cultural life cannot be compassed
by reason alone because the forms themselves are symbolic. While a lawyer might
regret the philosopher’s decision to omit jurisprudence from the six symbols
through which he interprets the evolution of mankind, he cannot quarrel with the
inclusion of history as one of the most rewarding.
      So viewed, the initiation by executive order[4] of the President’s
Commission on the Assassination of President Kennedy was more than the creation
of another fact-finding administrative agency, for its value lies both in and
beyond the ascertainment of factual truth. History is molded not entirely by
events but by men’s judgment of them; the honest, unbiased, factual report of
material plus the analysis and conclusions drawn by trained and diverse minds
has not only discovered but in a sense created history in our time.
      The commission members, themselves an impressively literate, conscientious
and experienced group of men, drew their staff counsel from representative
geographical and professional areas, but it is important to remember that the
report was not the result of legal thinking alone. The initial organizational
weakness which might have resulted from the fact that investigators were not
given staff status[5] (doubtless influenced by an early sensitivity to public
opinion, in view of rumors that Lee Harvey Oswald might have had prior
connections with the Federal Bureau of Investigation) was overcome by liaison
between the investigative agencies and staff members, so that fact finding and
legal interpretation proceeded harmoniously.
      But this alone could not have produced the document that ultimately
emerged save for the contribution of other than strictly legal viewpoints, and
the unity, depth and significance of the compendium owes much to the decision to
treat the work not only as investigative but also historical, and to include on
the staff experienced historians, whose point of view, approaching the issues
from a different path, offered a symbiotic climate in which the story could be
developed. The report is thus the first of its kind to be simultaneously
accepted as a scholarly historical presentation, a best-seller and a work of
literature.[6]
The Evidentiary Aspects of the Report
      From a legal standpoint, analysis of the report and particularly of
Chapter IV stating that the case against Oswald, is of special interest because
of its evidentiary aspects. It has been widely deplored that Oswald was killed
before he could be brought to trial. Our basic emotional and intellectual
demands that the concepts of due process and fair trial be observed have led
both lawyers and laymen to the conclusion that in the absence of such a trial
during the lifetime of the accused, carrying with it the defendant’s right to
procure and present his own side of the story, something will be lacking in the
conclusion reached. Had this document set out to be a brief for the prosecution,
that would indeed have been true. Since it is not, the fact is inescapable that
the report, although crammed with facts that would not be admissible on the
trial of a criminal case, sets out the whole picture in a perspective a criminal
trial could never achieve.
      Collateral to this subject is the emphasis on the prejudice to the right
of fair trial and its effects on the admissibility of evidence of the premature
divulgence of material by the press and local law enforcement agents at the time
of Oswald’s first detention, including statements made by Oswald’s wife, Marina,
as to his ownership of the assassination weapon and other facts, the suspect’s
refusal to take a polygraph test, the results of a thoroughly discredited
paraffin test purporting to be proof of the fact that Oswald had recently fired
a gin, and the statements of police officers and prosecuting officials that they
considered they had an airtight case against him. The report properly concludes
that, while there was a legitimate area of inquiry within the scope of the
public’s right to know, “neither the press nor the public had the right to be
contemporaneously informed by the police or prosecuting authorities of the
details of the evidence being accumulated against Oswald…. The courtroom, not
the newspaper or television screen, is the appropriate forum in our system for
the trial of a man accused of a crime.”[7]
What Evidence Would Be Admissible?
      Apart from this, and from the well-documented conclusion that Oswald was
not denied the right to counsel,[8] the interesting question remains as to the
character of the evidence which, from the maze of material set out in the
transcript of the commission hearings and in the exhibits, properly could have
been adduced against him on trial, had he lived to stand trial.
      There must first be deleted the testimony of his wife, Marina, for
although she testified on three occasions and was questioned by the press and
investigative agencies on scores of others, it is difficult to find any
statement which would not be more hurtful than helpful to her husband. Under
Texas law, “The husband and wife may, in all criminal actions, be witnesses for
each other; but they shall in no case testify against each other except in a
criminal prosecution for an offense committed by one against the other.”[9]
      Considering the transcript and exhibits as the “brief of evidence” on a
trial, there are many facts which appear only in the uncorroborated testimony of
Marina Oswald. Chief among them are facts laying the basis for the admission of
other criminal transactions—the attempt on the life of Major Edwin A. Walker on
April 10, 1963, and the reputed threat to make some assault on former Vice
President Richard Nixon. Whether either of these transactions would have been
admissible in any event is extremely doubtful.
      Under Texas law, distinct criminal transactions are never admissible
unless falling within some well-established exception to the general rule. They
must tend to connect the defendant with the offense for which he is on trial as
part of a general and composite transaction.[10] It might be argued that the
Walker and Kennedy incidents both showed a senseless antagonism against public
figures and thus lent “credence to otherwise implausible conduct”,[11] a sort of
extension of the motive exception which is, however, ordinarily confined to sex
crimes. System or modus operandi is another exception.[12] But sharp differences
exist between the two crimes: the extended advance planning and attention given
to escape routes in the Walker affair; the differing ideological images of the
victims, which make Walker’s demise more understandable within the framework of
Oswald’s known thinking than was the President’s; and so on. In any event, it is
perfectly obvious that absent his wife’s testimony the question is academic, as
there is no substantial evidence on which an attempt to introduce the prior
attempts could be predicated.
      Texas law demands that if evidence of the commission of another crime is
otherwise admissible, the rule obtains only when proof of the former may be
established beyond a reasonable doubt.[13] The remaining evidence the commission
found “of probative value”[14] consisted of: (1) an undated note which in no way
refers to Walker, (2) negative testimony of a Federal Bureau of Investigation
identification expert that the retrieved but damaged bullet could not be
identified as coming from any particular gun, although it “could have been”
fired from the rifle used to kill President Kennedy and (3) photographs of the
Walker premises. Even as to these, the note was turned over to the investigating
officers by Marina and could not in the absence of this testimony be identified
with the event, and it is unclear whether the photographs were also delivered by
her or were independently found on the premises by officers searching it with
her permission.
      The Nixon incident, or course, has no other corroboration.
Other Facts Depending on Marina’s Testimony
      Returning to the assassination itself, it was Marina Oswald who identified
the blue jacket as belonging to her husband;[15] the shirt, threads from which
were found caught in the rifle, as being one she thought he wore to work on the
morning of November 22, 1963;[16] the white jacket found in the parking lot
along Oswald’s reconstructed escape route as belonging to him;[17] the
photographs of Oswald with the rifle as being snapshots she took at his
request;[18]and a camera found in his effects as the instrument with which they
were made.[19] More important, she alone identified the rifle as the one which
he owned, and testified that she had seen him practice with it, that it had been
moved from New Orleans to Dallas in Ruth Paine’s station wagon and that it had
been stored in a green and brown blanket in the Paine garage.[20] This is the
only eyewitness testimony connecting Oswald with the assassination weapon or
definitely identifying his clothing. Other descriptions of clothing show the
usual contradictions.
      Marina Oswald also is the only source of a wealth of background
information, including facts forming the basis of the interpretation of his
character on which the “motiveless motive” of his crime depends. The statement
that Oswald wanted to hijack an airplane for transportation to Castro[’s] Cuba
is an example.[21] Connecting Oswald with the name Hidell was important because
the murder weapons were purchased in that pseudonym; Mrs. Oswald testified to
signing the name on certain cards at his insistence.[22]
      Defense counsel would next be interested in the exclusion of physical
evidence. The case for the prosecution would show that Oswald had purchased the
rifle; that he moved it from New Orleans wrapped in a green and brown blanket,
which he left with his other belongings in the garage of the Paine residence in
Irving; that Oswald took it from the blanket on the night of November 21, placed
it in a bag he made from paper he had obtained at the school book depository;
and that he carried it to work with him the next morning, representing that the
package contained curtain rods.
      After the arrest on the afternoon of November 22, the Dallas police
obtained a search warrant for the Oswald residence on North Beckley Street, but
no warrant was obtained for the Paine house until the following day.
Nevertheless, the police went to the Irving home of Mrs. Paine where Marina
Oswald was residing and Oswald spent his weekends and stored his effects. The
conducted a search of Oswald’s belongings that afternoon without a warrant and
without his consent. It is clear from commission documents that permission to be
interviewed was given by Mrs. Paine and that Mrs. Oswald, who was present, made
no objection. It is not at all clear that she gave consent to a search, however,
or that she in any way understood what her rights and those of her husband were.
      The most important discovery at this time was the blanket in which the
rifle had been wrapped, fibers from which were later identified as being
identical in all measurable characteristics with fibers in the abandoned bag
beneath the assassination window.[23] Defense counsel might well wish to raise
the question of whether the admission of this evidence would constitute a
violation of the guarantee of personal security under the Fourth and Fourteenth
Amendments.
      In Texas the general rule was that a defendant has no standing to object
to the search of another’s premises[24] and that a wife has implied authority to
consent to the search of her husband’s premises,[25] provided she understands
the nature of her act and is not subject to implied coercion. Slight
circumstances will suffice to void the consent.[26] Since Mapp v. Ohio, 367 U.S.
643 (1960), however, such cases must be reassessed in evaluating the Fourth
Amendment rights of defendants.[27]
      The Supreme Court has not taken a literal or mechanical approach to the
question of what constitutes a search or seizure. A hotel room, an occupied
taxicab, as well as a store, apartment or automobile, may fall within the
protected area. The protection extends to the effects of people as well as to
the person and houses.[28] Invitation to enter for an interview will not justify
a search after entry.[29] If the search is without a warrant, the prosecution
must show a consent that is unequivocal and specific, freely and intelligently
given. An invitation to enter a house extended to armed officers is usually
considered an invitation secured by force.[30]
      It is doubtful that such consent was extended by either woman. Even if
Ruth Paine consented to the examination of property in her garage known to
belong to Oswald, it is fairly obvious that Marina Oswald, considering her
scanty knowledge of English and Ruth Paine’s difficulties with Russian in a
crisis, gave no intelligent consent to a search of the garage, although Marina
pointed out the blanket in the belief, as she said, that it still contained the
rifle. Because of these factors there would seem to be a strong basis for
excluding this evidence.
What Might Be Done as to Other Witnesses
      Nor would an adroit lawyer be altogether defenseless as to the remaining
witnesses. While Oswald was seen on the sixth floor of the Depository Building,
from the southeast window of which the shots were fired, thirty-five minutes
before the assassination,[31] his duties in filling book orders were primarily
on the first and sixth floors. The only eyewitness who ever identified him at
the window first refused to make a positive identification, saying only that
Oswald looked like the man he saw.[32] Oswald’s subsequent departure from the
building was reasonably subject to his explanation that with all the commotion
he did not think any more work would be done that day.
      It would be a fruitless task to attempt to repel evidence of Oswald’s
subsequent movements (boarding a bus and leaving it; taking a taxicab; changing
clothes at his rooming house; walking down certain streets where he was seen
entering the Texas Theater; resisting arrest there; possessing and attempting to
use a pistol) since conduct of an accused following the commission of a crime
may be inquired into generally[33] and flight constitutes circumstantial
evidence of guilt.[34] Nor would it be necessary to show Oswald was aware that
he was suspected of the crime.[35] While it would be necessary to show, as to
the attempt to resist arrest in the theater, that Oswald knew he was being
arrested,[36] the evidence on this point is undisputed.
      There remains the question of whether the Tippit murder would be
admissible. As a subsequent similar offense it would be excluded.[37] As part of
a subsequent escape attempt it could not be shown until it first had been shown
that an effort was being made to arrest him. Here the prosecution might succeed,
on the proposition that the description being circulated of the President’s
assassin was sufficient to raise an inference that Tippit intended to hold
Oswald for questioning.[38] However, the testimony of Mrs. Helen Markham, an
eyewitness standing on the street corner, was merely that after the men talked,
Tippit got out of the car on one side and Oswald walked forward on the other and
shot him.[39]
      This witness was hysterical. Her initial description of Oswald, as well as
facts she stated regarding the time of the occurrence, was inaccurate. Her
original identification of Oswald in a line-up occurred after she had been given
sedatives, and she remained hysterical for several hours after the event.[40]
The admissibility of the Tippit murder, accordingly, is at least arguable.
      Assuming it to be admissible, however, as part of the general flight
picture, the transcripts show the usual contradictions which arise to plague the
prosecution. Domingo Benavides, the eyewitness closest to Oswald, refused to
identify him.[41] The Davis sisters were confused as to whether they called the
police before or after they saw Oswald leave the car and walk across the
lawn.[42] William Scoggins, the taxi driver and an eyewitness to the Tippit
murder, made his identification at the same line-up with William W. Whaley, the
driver in whose taxi Oswald made part of the trip from the Depository Building
to his rooming house, and it appears from the latter and other sources[43] that
Oswald’s remonstrances against being placed with other persons in the line-up
were so pronounced that any person could have picked him out as the accused
without ever having seen him before. There are, however, a number of other
witnesses who, while they did not see the actual shooting, did see Oswald leave
the scene, and who would not be easy to attack.
Importance of Physical and Documentary Evidence
      If we assume that our defense counsel was very, very lucky, he would be
able, if Oswald stood trial, either to exclude or impeach the testimony of a
large number of key persons whose accounts add so much to the strength of the
report. This is not to say that what would be left, granting the unlikely event
of success in all these endeavors, would leave room for a reasonable doubt of
Oswald’s guilt, but the surprising fact is that the conviction in such an event
would depend to an amazing degree on documentary evidence and its interpretation
by experts. In other words, the circumstantial evidence is either more cogent or
less subject to attack than the direct.
      Both the rifle recovered in the Depository Building and the pistol found
on Oswald’s person were traced to his possession by documents with the aid of
handwriting experts.[44] The snapshots which Marina Oswald gave to police
officers also are established by expert testimony identifying the rifle and
pistol Oswald was holding, proving that the pictures were made with his camera.
While testimony that Oswald brought the dismantled rifle to the Depository
Building is subject to attack because both the Fraziers many times described the
brown package Oswald brought from Irving to Dallas on the day of the
assassination as being much smaller than it would have had to be to contain the
weapon,[45] the bag itself found at the scene was shown to have been made from
materials to which Oswald had access, and the mute testimony of the object
overpowers the statements of the witnesses. All fingerprints on the boxes from
which the assassin fired were latent; sophisticated criminological procedures
were necessary to develop and identify them.[46] Expert testimony further links
the rifle with Oswald through the shirt fibers caught on its surface.[47] Other
testimony established that the bullet found in the Presidential limousine was
fired by the rifle that was recovered,[48] while the autopsy reports[49] and
ballistics firing tests[50] make plain the manner in which the shots hit their
mark. If the green and brown blanket found in the Paine garage were admitted,
expert testimony links fibers from it with those in the brown paper bag,[51]
suggesting that Oswald removed the rifle from the blanket and carried it to the
Depository Building in the bag, while human hairs found in the blanket itself
were linked with body hairs taken from Oswald after his arrest.[52]
      To the lawyer and prosecuting attorney, the Warren Report, conceived as a
criminal investigation carried to utmost limits, illustrates the importance of
utilizing the laboratory and the expert as sources of the most cogent evidence
in criminal proceedings. It also points up the usual difficulties in dealing
with the testimony of living witnesses. To the historian, on the other hand, it
displays the wealth of detail without which an understanding of the environment
and background of the tragedy is impossible.
Report Clears Away the Speculation
      The report has both here and abroad cleared away a fog of speculation
which could have induced unfortunate international tensions. It has made a real
contribution in the difficult area of proving a negative—no foreign Communist
state, no internal extremist society, no atmosphere of hate and prejudice for
which every American might have to bear a share of guilt, contributed to the
event. It has also been helpful in pointing the way toward protection of our
standards of fair trial from undue publicity, toward reforms in protective
procedures and toward desirable future legislation. It represents a new
synthesis which may be followed to advantage in future historiolegal
investigations.



[1] Report of the President’s Commission on the Assassination of President John
F. Kennedy, published by the United States Government Printing Office, $2.50
paperbound, $3.25 clothbound, pages xxiv, 888 (including appendixes and index).
This publication is hereafter cited as Report.
[2] Cassirer, An Essay on Man 172 (1944).
[3] Id. at 26.
[4] Exec. Order No. 11130, 28 Fed. Reg. 12789 (November 30, 1963). This
executive order, which is also set forth at Report 471, stated: “The purposes of
the commission are to examine the evidence developed by the Federal Bureau of
Investigation and any additional evidence that may hereafter come to light or be
uncovered by federal or state authorities; to make such further investigation as
the commission finds desirable; to evaluate all the facts and circumstances
surrounding such assassination, and to report to me its findings and
conclusions.” Senate Joint Resolution 137, 88th Congress (Pub. L. No. 88-202, 77
Stat. 362), granted the subpoena power to the commission and granted immunity to
witnesses compelled to give self-incriminating testimony.
[5] Except for certain Treasury Department personnel, who did not, however, act
in an investigative capacity at that time.
[6] McGraw-Hill Book Company has published the report, with an introduction by
Harrison E. Salisbury, and other material prepared by James Reston, Anthony
Lewis and Tom Wicker, all of The New York Times, $3.95 for the hardcover edition
and $1 for the paperback Bantam edition. The McGraw-Hill edition was brought out
in a separate printing by the Book-of-the-Month Club as a dividend selection.
[7] Report 240.
[8] Report 201, 655.
[9] Vernon’s Ann. C.C.P. art. 714.
[10] Medina v. State, 193 S. W. 2d 196 (Tex. Crim. App. 1945); Morris v. State,
198 S. W. 2d 901 (Tex. Crim. App. 1946).
[11] Head v. State, 267 S. W. 2d 419 (Tex. Crim. App. 1954).
[12] Coston v. State, 268 S. W. 2d 180 (Tex. Crim. App. 1954).
[13] Ernster v. State, 308 S. W. 2d 33 (Tex. Crim. App. 1957).
[14] Report 187.
[15] Report 155.
[16] Report 124.
[17] Report 175.
[18] Report 125–127.
[19] Report 181.
[20] Report 128.
[21] Report 299, 412.
[22] Report 122.
[23] Report 588–591.
[24] Nagel v. State, 71 S. W. 2d 285 (Tex. Crim. App. 1934).
[25] Brown v. State, 235 S. W. 2d (Tex. Crim. App. 1950).
[26] Jordan v. State, 11 S. W. 2d 323 (Tex. Crim. App. 1928).
[27] Lanza v. New York, 370 U. S. 139 (1962).
[28] United States v. Hortze, 179 F. Supp. 913 (S.D. Calif. 1959).
[29] Robertson v. State, 375 S. W. 2d 457 (Tex. Crim. App. 1964).
[30] Gatlin v. United States, 326 F. 2d 666 (D.C. Cir. 1963); United States v.
Roberts, 179 F. Supp. 478 (D.D.C. 1959).
[31] Report 143.
[32] Report 145.
[33] 23 Tex. Jur. 2d 190.
[34] Vaccaro v. United States, 296 F. 2d 500 (5th Cir. 1961).
[35] McCormick & Ray, Texas Law of Evidence 394.
[36] Chester v. State, 300 S. W. 57 (Tex. Crim. App. 1927).
[37] Gross v. State, 135 S. W. 373 (Tex. Crim. App. 1911).
[38] Report 165.
[39] Hearings of the President’s Commission on the Assassination of President
John F. Kennedy, Volume 3 (testimony of Helen Markham, page 307). Hereafter
these volumes are referred to as Hearings.
[40] Hearings, Volume 7 (testimony of L. C. Graves, page 252, and James R.
Leavelle, page 262).
[41] Report 166.
[42] Hearings, Volume 3 (testimony of Barbara Jeanette Davis, page 345) and
Volume 6 (testimony of Virginia Davis, page 460).
[43] Hearings, Volume 6 (testimony of William W. Whaley, page 428) and Volume 7
(testimony of Daniel Lujan, page 243).
[44] Report 569–570.
[45] Hearings, Volume 7 (testimony of Buell Wesley Frazier, page 531) and Volume
2 (testimony of Linnie Mae Randle, page 245).
[46] Report 563–566.
[47] Report 591–592.
[48] Report 557–558.
[49] Report 538–546.
[50] Report 580–586.
[51] Report 591.
[52] Report 590.
Back to Reactions to WC Report
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Thanks for posting this, Jim.... was unaware of it totally and it's a fascinating read.

Seeing that she was staff member of the WC I felt it was
a informative paper.  I used it as a base for my script
"A Case Not Tried" in connection with "Questions of
Integrity"  on the fingerprint issues. I would like to see or hear a debate between her and VB...jko

James K. Olmstead wrote:Seeing that she was staff member of the WC I felt it was
a informative paper.  I used it as a base for my script
"A Case Not Tried" in connection with "Questions of
Integrity"  on the fingerprint issues. I would like to see or hear a debate between her and VB...jko

There are several areas that could be vigorously debated, but considering she authored this in 1965, she had no real reason to question some of the evidence she accepts as valid. Nor at that time, was it known that the DPD and Wade's office were corrupt to the core insofar as manufacturing cases against their suspects without regard to exculpatory considerations. Or to put is simply, they framed people regardless of their actual innocence or guilt.