Alfredda Scobey, a lawyer on the staff of the Warren Commission, wrote an important paper about the admissibility of evidence if Oswald had been tried. James DiEugenio misinterpreted her words in Oliver Stone's so-called documentary series, JFK: Destiny Betrayed.
I discussed this in my book, Oliver Stone's Film-Flam: The Demagogue of Dealey Plaza:
A central DiEugenio premise is that had Lee Harvey Oswald stood trial, he would have been acquitted. He believes that most of the incriminating evidence, because of anomalies in the chain of possession, would have been thrown out of court. The problem with this unfalsifiable theory is that DiEugenio wants to extend this to historical truth.
The murder of Lee Harvey Oswald meant that there was not going to be a trial. The Warren Report noted that “under our system there is no provision for a posthumous trial.” In any trial, it is the defendant who guides the defense, both in strategy and tactics, and with no defendant, one cannot be sure how a trial would have proceeded.
Even if Oswald had been tried, there still would have been a need for some sort of investigation. The purpose of a trial is just to determine if a defendant is guilty. That necessitates very restrictive rules of evidence, and thus only a narrow part of the whole story is uncovered. Questions about Jack Ruby, the murder of Officer Tippit, the attempted shooting of General Walker, and a variety of other important areas would still have had to be answered.
The Commission did not utilize an adversary system. Although lawyers persist in extolling the virtues of the adversary system, I doubt whether truth would have emerged from a Commission that presided over a bitter proceeding in which evidence would have been constructed and dissected towards partisan ends, and reconstructed in distorted summations.
Mosk felt that “such a method might have resulted in the chaos that sometimes accompanies Congressional Committee hearings.”
There are several important differences between a trial and an investigation. The Warren Commission, for example, decided to take testimony from witnesses in private. It is important to note that these hearings weren’t secret; transcripts were published two months after the Warren Report. In a trial, witnesses would have to testify publicly in open court. Mosk noted that many “witnesses, who at first seemed to be hesitant and nervous, seemed to gain confidence in the quiet atmosphere of a private hearing.”
The Warren Commission also allowed hearsay. They were interested “in any rumors which might provide leads to a conspiracy.” Testifying in public might have cast undue suspicion on innocent people.
Alfredda Scobey, a lawyer on the staff of the Warren Commission, wrote that “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.”
For instance, Marina Oswald would not have been allowed to testify at his trial. She would not have been able to confirm Oswald’s ownership of his blue and white jackets. She would not have been allowed to discuss Oswald’s admission of shooting at General Walker or his ownership of the Mannlicher-Carcano rifle, and she would not have been allowed to admit that she took the photographs of Oswald in their backyard.
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.
Scobey believes that other pieces of evidence also might not be admissible at trial. The search in Ruth Paine’s garage might have been unconstitutional because it’s possible that Ruth Paine and Marina Oswald did not give informed consent. She also wonders whether the Tippit murder itself could have been brought up at trial.
I have always felt that the saga of [Senator Richard] Russell was an underrated and ignored story. I mean, his assistant, Scobey—who he brought up from Atlanta—later wrote an article which said that Oswald would not have been convicted in a real court of law.
Scobey did not say that at all. She wrote:
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.
To her, an important part of determining truth was the “documentary evidence and its interpretation by experts.” She writes that “the Warren Report, conceived as a criminal investigation carried to its utmost limits, illustrates the importance of utilizing the laboratory and the expert as sources of the most cogent evidence in criminal proceedings.”
And so, DiEugenio is right that a lot of evidence against Oswald might not have been admissible in a court of law. But his perspective is diametrically opposed to that of Scobey. He doesn’t care if Marina Oswald could testify or not, he has no interest in whether the Tippit murder or the attempt on Walker’s life could be brought up at trial, and he really doesn’t care if the search of Ruth Paine’s garage was constitutional.
DiEugenio believes that supposed anomalies in the chain of possession of much of the underlying evidence (Oswald’s rifle, the bullet found at Parkland Hospital, etc.) renders them not just inadmissible in a court of law but also renders them inadmissible in an investigation. He has no interest in getting Oswald off on a technicality; he wants the judgment of history to use courtroom standards to declare Oswald innocent of killing JFK.
I wanted to include this segment from my book, because I have found a copy of a speech that Alfredda Scobey gave on television in 1967 in which she discussed how the memo was misinterpreted by Mark Lane:
Let me begin with a personal reference. I wrote a bar journal article the thesis of which was that the evidence before the Warren Commission was like the brief of evidence on the trial of the case, but that, had Oswald been on trial, much of this testimony (for example, that of his wife) could have been excluded by defense counsel, but that nevertheless Oswald could not have been acquitted because his guilt was overwhelmingly proved by physical, documentary and circumstantial evidence. After stating what a defense counsel might delete, I wrote -- here is the language -- "This is NOT to say that what would be left would leave room for a reasonable doubt of Oswald's guilt.
Mr. Lane knows as a lawyer knows that if there is no room for a reasonable doubt, the defendant in a criminal case must be convicted. If the jury believes there is a reasonable doubt he must be acquitted. I emphasized I was NOT saying there was room for reasonable doubt.
Mr. Lane, on page 59 of the current issue of Playboy writes about this: "Le me add that there is no doubt in my mind that HAD OWALD LIVED TO FACE TRIAL HE WOULD HAVE BEEN ACQUITTED. A Commission attorney, Alfredda Scobey, CONCEDED THAT in the January, 1965 issue of the American Bar Association Journal.
I said the admissible evidence on a trial would not leave room for a reasonable doubt of guilt. Mr. Lane quotes me as saying I concede his acquittal. Does Mr. Lane find his position so precarious that it's necessary for him to do this to gain the appearance of support in his public interviews?
One of the major mistakes of the Warren Commission was to not have a panel of forensic pathologists examine JFK's autopsy photographs and x-rays. Had they commissioned a professional report, there would have been much less speculation about the nature of JFK"s wounds, and the direction of the gunshots.
Here is a short description of the TV show on which she appeared:
Press-Telegram, February 11, 1967
Don't miss the Viewer's Guide to JFK: Destiny Betrayed and JFK Revisited: Through the Looking Glass.
I have shown in multiple blog posts how Oliver Stone's documentary series, JFK Revisited and JFK: Destiny Betrayed, misleads viewers. It's no wonder that the fact checkers of Netflix nixed the airing of the films.
There is a choice between four hours of tendentious nonsense (JFK: Destiny Betrayed) and two hours (JFK Revisited: Through the Looking Glass). As a handy guide for viewers, the Viewer's Guide has now been updated to include the sources from my new book, Oliver Stone's Film-Flam: The Demagogue of Dealey Plaza.
