Saturday, 31 July 2021 21:25

A Presumption of Innocence: Lee Harvey Oswald, Part 2

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Johnny Cairns continues his multi-part reexamination of the key evidence against Lee Harvey Oswald in the assassination of JFK by reviewing the chain of custody on CE 399 and the putative discovery of a palm print on the rifle.


Part 1

CE 399

How does one go about verifying the authenticity of Commission Exhibit 399? That is a very important question. Had Lee Harvey Oswald survived long enough to see a public trial, no doubt one of the most important pieces of evidence against him would have been the nearly pristine bullet found on a stretcher at Dallas’s Parkland Hospital in the wake of the president’s murder. One of the most important aspects of any criminal case is verification of physical evidence which is being presented in a court of law. This high-profile murder case is no exception; therefore the provenance of CE 399 must be explored if we are to make a determination as to its authenticity. This exploration begins through the study of the variety of documentation and witness statements relating to this core evidence. This legal doctrine behind this exploration is termed ‘chain of possession.’ In relation to CE 399, we want to determine:

  1. Who found the bullet?
  2. Who took possession of the bullet?
  3. What documentation and markings exist in relation to the bullet?
  4. What do the witnesses say about the bullet?

The discovery of the bullet is credited to Parkland maintenance employee Darrell C Tomlinson. Mr Tomlinson was in the process of moving a stretcher which was blocking an area in front of an elevator in the hospital’s emergency department. Tomlinson stated before the Commission that:

Mr. TOMLINSON.  I pushed it back up against the wall.

Mr. SPECTER.      What, if anything, happened then?

Mr. TOMLINSON.  I bumped the wall and a spent cartridge or bullet rolled out that apparently had been lodged under the edge of the mat.

(Testimony of Darrell C Tomlinson)

Upon the retrieval and inspection of this bullet, Tomlinson handed it over to Mr. O. P. Wright, who was Parkland’s personnel director. Mr Wright was a retired Dallas deputy chief of police, in charge of patrol division in the 1950’s. Upon close inspection of this bullet, Wright sought out a Secret Service agent. That agent was Richard E Johnson. Agent Johnson kept in his possession the Parkland bullet until he had flown back to Washington D.C. with the slain president’s body. Once in Washington, Johnson handed over possession of the bullet to chief of the Secret Service, James Rowley. In turn, Rowley handed the bullet over to FBI agent Elmer Lee Todd. Todd, who is alleged to have placed his markings upon the bullet, handed the bullet over to Robert Frazier of the FBI crime lab. That is the official explanation as to how the bullet found in Dallas ended up in Washington D.C. on 11/22/63.   Let us examine some of the participants in this chain:

Tomlinson => Wright => Johnson => Rowley => Todd => Frazier

Darrell C Tomlinson

Tomlinson appeared before the Warren Commission on March 20th, 1964. Amazingly, Mr. Tomlinson was not shown CE 399 during his hearing and consequently was not asked to ID it as the bullet that he found on the stretcher at Parkland Hospital on 11/22/63. This is strange behaviour from the Commission as Mr. Tomlinson was an important witness to the identification of this key piece of evidence.

According to one memo (Commission Exhibit 2011, p.2), on June 12, 1964, Darrell C. Tomlinson, maintenance employee, Parkland Hospital, Dallas, Texas, was shown Exhibit C1 (CE 399), a rifle slug, by Special Agent Bardwell D. Odum of the Federal Bureau of Investigation. To quote from that report, “Tomlinson stated it appears to have been the same one he found on a hospital carriage at Parkland Hospital on November 22, 1963, but he cannot positively identify the bullet as the same one he found and showed to Mr. O. P. Wright.” Did Tomlinson at least concede that CE 399 resembled the bullet he held in his possession that day?

O P Wright

As incredible as it sounds, Mr. Wright was not called to testify before the Commission. According to an FBI Memo which was printed in the Warren Commission hearings (Commission Exhibit 2011, p.2), on June 12, 1964: “O. P. Wright, Personnel Officer, Parkland Hospital, Dallas, Texas, advised Special Agent Bardwell D. Odum that Exhibit C1 (CE 399), a rifle slug, shown to him at the time of the interview, looks like the slug found at Parkland Hospital on November 22, 1963. He advised he could not positively identify C1 (CE 399) as being the same bullet which was found on November 22, 1963.” But does the evidentiary record support the notion that Wright conceded that the Parkland bullet looked like CE 399?

In November of 1966, Josiah Thompson visited Tomlinson and Wright at Parkland Hospital in Dallas. Thompson later asked Wright to describe the bullet he got from Tomlinson on 11/22/63. Wright described the bullet he obtained as having a “pointed tip.” (Six Seconds in Dallas, p. 175)

In reference to an earlier re-enactment done with Tomlinson, Wright stated to Thompson that the stretcher bullet looked “like the one you got there in your hand,” referencing the .30 calibre projectile used for the re-enactment. (Thompson, Last Second in Dallas, p. 24)

This description from Wright must bring into question Wright’s alleged concession to Odum that CE 399 looked like the bullet he had in his possession that day. When Thompson showed Wright a picture of CE 399, similar bullets from Oswald’s alleged rifle and CE 606, similar bullets from Oswald’s alleged revolver, Wright denied that any of these resembled the bullet Tomlinson found on 11/22/63. 

Thompson stated that later, while getting ready to leave Parkland, Wright approached him and said, “Say, that single bullet photo you kept showing me … was that the one that was supposed to have been found here?” Thompson replied “Yes.”  Thompson states that Wright “looked right at me, his face expressionless, and said, ‘Uh...huh.’ Then Wright turned and went back to his office.” (Last Second in Dallas, p. 26)

To Thompson, Wright had rejected CE 399 as the bullet Tomlinson handed over to him that day. Tomlinson also could not identify CE 399 as the bullet he found on the stretcher on 11/22/63.

In a declassified document dated 6/20/64 from Gordon Shanklin, SAC Dallas, to FBI Director J Edgar Hoover, Shanklin states: “Neither Parkland’s DARRELL C. TOMLINSON, nor O. P. WRIGHT, can identify this bullet.”

So as of June 20th 1964, the FBI knew that neither Tomlinson nor Wright could identify CE 399 as being the bullet which came from a stretcher at Parkland Hospital on 11/22/63. 

Richard E Johnson

Richard E Johnson was another important witness whose testimony the commission neglected to hear. Maybe it is because, contained within the document CE 2011, we find the following information with regard to his identification of CE 399:

On June 24, 1964, Special Agent Richard E. Johnson, United States Secret Service, Washington, D.C., was shown Exhibit C1 (CE 399), a rifle bullet, by Special Agent Elmer Lee Todd, Federal Bureau of Investigation. Johnson advised he could not identify this bullet as the one he obtained from O. P. Wright, Parkland Hospital, Dallas Texas, and gave to James Rowley, Chief, United States Secret Service, Washington D.C., on November 22, 1963. (Commission Exhibit 2011, Volume XXIV, p. 412)

James Rowley SS Chief

On June 24, 1964,  James Rowley, Chief, United States Secret Service, Washington, D.C., was shown exhibit C1(CE 399), a rifle bullet, by Special Agent Elmer Lee Todd. Rowley advised he could not identify this bullet as the one he had received from Special Agent Richard E. Johnson and gave to Special Agent Todd on November 22, 1963. (Commission Exhibit 2011, Volume XXIV, p.  412)

Elmer Lee Todd

On June 24th, 1964, Special Agent Elmer Lee Todd, Washington D.C. … identified C1 (CE 399), a rifle bullet, as being the same one he had received from James Rowley, Chief, United States Secret Service, Washington D.C. … on November 22, 1963. This identification was made from initials marked thereon by Special Agent Todd at the Federal Bureau of Investigation Laboratory upon receipt, November 22, 1963. (Commission Exhibit No. 2011, Volume XXIV, p.  413)

So according to CE 2011, SA Elmer Todd was able to identify CE 399 because of the initials Todd had placed upon the bullet to establish chain of custody.  

Well respected Kennedy researcher John Hunt wanted to establish if the bullet which sits in the National Archives today in fact bears the marking of Special Agent Elmer Lee Todd. Hunt managed to put together an illustration using photographs of CE -399.” He was thenable to track the entire surface of the bullet using four of NARA’s preservation photos.”

As Hunt states in his fine essay on this subject:

There is no question but that only three sets of initials appear on CE -399. There is likewise no question that they have all been positively identified:  RF was Robert Frazier, CK was Charles Killion, and JH was Cortland Cunningham … It can be stated as a fact that SA Elmer Lee Todd’s mark is not on the historical CE -399 bullet.” (Phantom Identification of the Magic Bullet: E. L. Todd and CE-399)

We also find further collaboration for Hunt’s work from Dr David Mantik. At NARA in June 1994, Mantik and astronomer Steve Majewski confirmed that Todd’s initials are not on the historical CE 399.  In an email communication with me, Mantik stated, “The other initials are precisely as described by John Hunt.”

Robert Frazier FBI

Another of John Hunt’s masterclasses comes in the form of the essay, “The Mystery of the 7:30 Bullet.” Hunt discovered through his examination of Robert Frazier’s detailed notes that the Parkland bullet was recorded as “Reed Elmer Todd, 11/22/63 – 7:30 p.m.” According to Frazier himself, he took custodianship of the bullet from Todd as of 7:30 p.m. on 11/22/63.

However, upon further analysis of the documentation, Hunt came across an envelope which was filled out by SA Elmer Lee Todd upon receipt of the bullet from Chief Rowley. This documentation states:

Received from Chief Rowley, USSS, 8:50 p.m. 11/22/63 E. L. Todd. (The Mystery of the 7:30 Bullet)

Question: How could Todd have given Frazier the stretcher bullet at 7:30 p.m. when Todd had not yet received that bullet from Chief Rowley until 8:50 p.m.? This discrepancy further casts the authenticity of the prosecution’s evidence into the most serious doubt.


Gary Aguilar and Josiah Thompson Track Down Odum

Dr Gary Aguilar and Josiah Thompson tracked down former FBI agent Bardwell Odum. The following encounter is well documented in their fine essay, “The Magic Bullet: Even More Magical Than We Knew?” (The Assassinations, edited by James DiEugenio and Lisa Pease, pp. 282-84)

On September 12th 2002, Aguilar phoned Odum and the two conversed about various things, but naturally the discussion turned to the assassination of John Kennedy. Odum agreed to look over various documents for Aguilar. Mr. Odum was sent three separate documents. The three were CE 2011, which states that Odum had shown CE 399 to Tomlinson and Wright at Parkland, the FBI airtel dated June 12, 1964, and the three-page FBI memo dated July 7, 1964. After a few weeks, Aguilar phoned Odum back. During that second phone call, Bardwell Odum then made the following statements: “Oh I never went to Parkland Hospital at all. I don’t know where you got that?” When Gary Aguilar asked Odum about CE 399, Odum replied, “I didn’t show it to anybody at Parkland. I didn’t even have any bullet. I don’t know where you got that from, but it is wrong.” (The Magic Bullet: Even More Magical Than We Knew?)

Mr. Odum then went on to state that he never even saw CE 399, let alone had it in his possession. What makes it all worse is that Mr. Odum was a personal friend of O. P. Wright. Surely if Odum had at any time taken possession of this important piece of evidence relating to the murder of President Kennedy and presented it to his friend for identification purposes, then Odum would have remembered, would he not have?

Summary 

It is pretty clear that CE 399 would have been an evidentiary debacle for a prosecuting attorney trying Lee Oswald. In order for evidence to be ruled as admissible in a court of law, the item must have an intact chain of possession. If a certain piece of evidence does not meet that standard, then this evidence is wide open to serious questioning by a defense attorney. Why would any prosecutor want Tomlinson, Wright, Johnson, and Rowley to testify that CE 399 was not the bullet each of them took possession of that day? Why would the prosecution want Todd testifying that he had indeed marked the Parkland bullet, when the historical CE 399 which sits in evidence today does not bear his marked initials? Why would the prosecution want Frazier to take the stand and testify under oath that he had received the bullet from Todd at 7:30 pm, when the bullet from Dallas wouldn’t be received by Todd until 8:50 pm?

Mark Lane, quoting Mark Twain, summed it up best:  “Who so clinging from a rope by his hands severeth it above his hands must fall. It being no defense to claim that the rest of the rope is sound.”


C 2766 Palm Print

Leaving behind CE 399, I now would like to turn our attention to another piece of evidence which is cited against Lee Oswald: the alleged presence of his palm print upon the rifle claimed as the murder weapon of John Kennedy. This alleged discovery of the print was made by J. C. Day of the Dallas police on 11/22/63. Even at that early stage it is alleged that Day had tentatively identified the palm print as coming from the main suspect, Lee Oswald. (Sylvia Meagher, Accessories After the Fact, p. 123) Is there any photographic evidence in existence of the print on C2766? The shocking but unsurprising answer to that question is there is no contemporaneous photographic evidence. Standard practice is to photograph a lift before an attempt at its removal is made. This step is taken to safeguard against the possibility of losing the print. Take, for example, the statements of FBI Fingerprint Expert Sebastian Latona: “Primarily, our recommendation in the FBI is simply in every procedure to photograph and then lift.” (Meagher, p. 123)  The absence of any contemporaneous photograph of the print on the rifle is even more dumbfounding when we learn that Lieutenant Day attended an advanced latent print school conducted in Dallas by the Federal Bureau of Investigation. (Meagher, p. 123)

There are photographs of other partial prints taken by Day which were found on the exterior of the rifle. These prints were found to be valueless by the FBI.  Day claimed that he had taken these photographs around 8 p.m. on 11/22/63.

Day claimed that he did not take a photograph of the most important latent palm print because he was given orders by Dallas Police Chief Jesse Curry to “go no further with the processing.” However, prior to his Commission testimony, Day related to the FBI that he received these orders from Curry shortly before midnight. So by his own admission, Day had almost 4 hours to photograph the print he identified as Oswald’s before receiving the orders from Chief Curry. (Commission Exhibit 3145)

Why, then, did he not photograph the latent print? He must have known that this would be important evidence in any trial of Oswald. Not only is there no evidence that the palm print was ever present on the rifle, but when the FBI received the weapon and tested it for prints, they found no evidence of any fingerprint traces and no evidence of a lift ever being performed. (Henry Hurt, Reasonable Doubt, p. 107) Day testified that “the print on the gun … still remained on there … there was traces of ridges still on the gun barrel.” (WC Vol. 4, pp. 261-62) Which is in stark contrast to the findings by the FBI.

There is also no independent collaboration to Day’s alleged lifting of the print, as Day claimed to be alone when he attempted the lift. (CE 3145)

Day also apparently neglected to inform FBI agent Vincent T. Drain. Drain transferred the rifle to Washington D.C. on 11/23/63.  Day said he informed Drain he had indeed found a palm print on the rifle which he believed was Oswald’s. As Henry Hurt wrote, Drain clearly disputes this:  he says Day never showed him any such print or left any indication on the rifle where to look for it. (Hurt, p. 109)

Once the rifle arrived in Washington D.C., FBI hair and fibre expert Paul Stombaugh examined it, stating, “I noticed immediately upon receiving the gun that this gun had been dusted for latent fingerprints prior to my receiving it. Latent fingerprints powder was all over the gun.” (Meagher, p. 121)

In Accessories After the Fact, Sylvia Meagher states, “How could powder survive on the gun from Dallas to Washington, but every single trace of powder and the dry ridges which were present around the palm print on the gun barrel under the stock vanish?” (Meagher, p. 122)

Now when Capt. Will Fritz was asked on Saturday, November 23, if Oswald’s prints were found on the rifle, he stated “No sir.”  Chief Curry also made no mention of this important discovery to the media. (Meagher, p. 124) In fact, the first mention of a palm print discovered on the rifle was announced on 11/24/63 by Dallas DA Henry Wade. (Hurt, p. 108) This was after the rifle was back in Dallas and after Oswald was murdered. The following is very hard to swallow:  Day allegedly informed Fritz and Curry on 11/22/63 that he had found a palm print on the rifle which allegedly was used in the killing of President Kennedy and that he had tentatively identified the palm print as coming from the main suspect, Lee Oswald. (Meagher, p. 124)

With this powerful information in their arsenal, neither Fritz, Curry nor Wade, who were guilty of making many fraudulent and prejudicial statements of “fact” against the accused, offered not once to the assembled media on 11/22 or 11/23 that the existence of Oswald’s palm print had indeed been found on the suspected murder weapon.

The statements emanating from law enforcement officials were so prejudicial against Oswald that they warranted comment from various sources, one of these being Attorney Percy Foreman. According to the St Louis Post Dispatch, Foreman suggested that “authorities are running a serious risk of jeopardizing their case against Oswald by failing to observe his constitutional rights.” He went on to state: “Officials may have already committed reversible error in the case by permitting the accused to undergo more than 24 hours of detention without benefit of legal counsel.” Citing grounds for reversal, Foreman further asserted: “Under recent decision of the United States Supreme Court, Federal procedural guarantees must be observed in state prosecutions. Their abridgment can be grounds for a reversal or even a conviction. This is a new law. They could get a conviction in Texas and get it thrown out on appeal, but it takes a long time for these dim-witted law enforcement officers to realize it.”  (St Louis Post Dispatch, 11/24/63)

After Oswald’s murder, all the evidence pertaining to the murder of President Kennedy was transferred from Dallas to Washington for good on November 26th. Day’s alleged lift of the palm print on the rifle did not reach Washington until November 29th. Why did this important piece of evidence not arrive with the others? (Meagher, p. 123)

In his book Reasonable Doubt, Henry Hurt interviewed retired FBI agent Vincent T Drain. Remember, Drain was the man who transferred the rifle from Dallas to Washington in the early hours of 11/23/63. When Drain was asked about the authenticity of the palm print, he replied: “I just don’t believe there was ever a print.” He noted that there was increasing pressure on the Dallas police to build evidence in the case. Asked to explain what might have happened, Agent Drain said, “All I can figure is that it (Oswald’s print) was some sort of cushion because they were getting a lot of heat by Sunday night. You could take the print off Oswald’s card and put it on the rifle. Something like this happened.” (Hurt, p. 109)

From Latona’s testimony it appears that the FBI never did find any of Oswald’s prints on C 2766. Latona confirmed Oswald’s prints from pictures supplied to him by the Dallas Police on November 29th. (WC Vol. 4, pp. 24-25). To put it mildly, any accomplished defense attorney would have moved for what is called an evidentiary hearing prior to any trial of Oswald on both these pieces of evidence. He would likely have had both declared inadmissible. If not, he would have demonstrated to any jury that they were worthless as evidence since no chain of custody existed with either one. Beyond that, people were lying in order to create the illusion of a chain.


Part 3

Last modified on Saturday, 16 October 2021 22:12
Johnny Cairns

Johnny Cairns is an electrician living in Edinburgh. He first got interested in President Kennedy through his father, Robert Cairns. Since then, he has held an undying admiration for Jack Kennedy and what he stood for. Through familiarizing himself with the facts of this crime, he has also became an advocate for the innocence of his alleged assassin, Lee Oswald. Through the various friendship’s developed with other researchers and making the trip to Dallas in 2018, he has spoken at JFK Lancer presenting the case for Oswald’s innocence and co-authored a book which is due for release at the end of 2021, titled “Case Not Closed.”

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