Monday, 08 May 2023 07:55

Case Closed 30 Years On: Even Worse - Part 3/5: November 22, 1963: Posner's Evidence

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Part 3 of 5 of British researcher Martin Hay's review of Gerald Posner's 1993 book Case Closed.

Oswald and the Paper Bag

As bad as Posner’s portrait of Oswald is, his chapters dealing with the assassination of President Kennedy and the evidence implicating Oswald are even worse. While it is probably not possible to make an honest case for the lone gunman theory and have it be in any way compelling, the fact is that Posner doesn’t even try. He continues to behave like an unscrupulous lawyer, carefully presenting only what suits his purposes and misrepresenting that which does not. He plays games with eyewitness testimony, creating consensus where there is none and hiding conflict where it exists. And in a failed attempt to make it appear possible that the assassination was the work of a single assassin he relies, as all Warren Commission apologists must, on the single bullet theory—a scientifically absurd hypothesis which was never in accordance with the evidence―and on a technique of comparative bullet lead analysis that has since been dropped by the forensic community because it has been demonstrated to be nothing more than “junk science.”

Posner begins his narrative of November 22, 1963, by telling readers that Lee Oswald left the Paine residence that morning and walked to the home of his co-worker, Buell Frazier. As Oswald approached the house he was noticed by Frazier’s sister, Linnie Mae Randle, “carrying a long package parallel to his body. He held one end of the brown-paper-wrapped object tucked under his armpit, and the other end did not quite touch the ground. Randle later recalled it appeared to contain something heavy. (p. 224) Randle watched as Oswald laid the package on the backseat of Frazier’s car then walked up to the house, which, Posner implies, was unusual because Frazier “always drove the one block to pick Oswald up at Ruth Paine’s home.” (Ibid) When Frazier joined Oswald at the car, he noticed the package on his backseat and asked what it was. Oswald told him it contained “curtain rods.” With no reason to doubt Oswald’s assertion, Frazier paid no more attention to the brown paper bag and drove to the Texas School Book Depository. Once they arrived, rather than walking into the building together as was their usual routine, “Oswald quickly left the car and walked ahead. Frazier watched him enter the Depository, carrying the package next to his body.” (Ibid)

With the above narrative, Posner creates the impression that Oswald was in an unusual haste that morning because he desperately wanted to sneak his rifle―disguised as curtain rods―into the Book Depository. However, the author is up to his usual trick of cherry-picking the details he likes and ignoring or misrepresenting the rest. Because not only do the testimonies of Frazier and Randle refute the notion that Oswald was in an unusual hurry that morning, but they also demonstrate that whatever was in the package he carried, it very likely could not have been the rifle.

To begin with, Randle did not say that Oswald carried the package with one end under his armpit and the other not quite touching the ground. What she really said was that he carried it down by his side, with his hand at the top,"and it almost touched the ground as he carried it.” (WC Vol. 2 p.248) Had the brown-paper-package contained the rifle it would have been impossible for Oswald to have carried it in this way because, even when broken down, the Mannlicher Carcano was 34.8 inches long. (WR p. 133) This is precisely why Posner threw in the idea that Randle saw one end of it “tucked under his armpit.” But she was clear in her testimony, not only about the way Oswald held the package, but also about its length. When the FBI presented Randle with a “replica” brown paper bag and asked her to fold it over until it reached “the proper length of the sack as seen by her on November 22, 1963,” her estimate was measured at 27 inches long. (WC Vol. 24 pp.407-8) Months later, when she appeared before the Warren Commission, she was asked to repeat the experiment. On that occasion, the resultant length was 28 ½ inches. (WC Vol. 2 pp. 248-50) It is entirely clear that Randle did not recall seeing a bag that was long enough to hold the rifle. Furthermore, she did not say, as Posner alleges, that the package “appeared to contain something heavy.” What she said was that the bag was made from “a heavy type of wrapping paper.” (WC Vol. 2 p. 249) Which makes a big difference.

Frazier also took part in experiments that helped establish that the bag Oswald had with him that day was between 27 and 28 inches in length. For example, on December 1, 1963, Frazier was asked by FBI agents to mark the point on the back seat of his car that the bag had reached when Oswald had put it there with one end against the door. The FBI “determined that this spot was 27 inches from the inside of the right rear door.” (WC Vol. 24, pp. 408-9) Frazier was also certainthat, when Oswald walked into the depository, he had carried the package with one end cupped in his hand and the other tucked under his arm. This was not possible with the Mannlicher Carcano. During his Warren Commission testimony, Frazier was presented with the disassembled rifle inside a paper bag and asked to demonstrate how Oswald had held the package. When he preceded to cup the bottom end in his hand, the top extended several inches above his shoulder, almost up to the level of his eye. But Frazier made clear that none of the bag he saw Oswald carrying had been sticking up above his shoulder and he was certain the bottom end had been cupped in his hand. "From what I seen, walking behind," Frazier testified, "he had it under his arm and you couldn't tell he had a package from the back." (WC Vol. 2, p.243)

Posner alludes to the above in a footnote. Completely ignoring the experiments Frazier and Randle conducted for the FBI and the Commission, he writes that “Initially, Randle said the package was approximately 27 inches long, and Frazier estimated a little over two feet.” He then tries to nullify their fully corroborative testimonies by stating that “Frazier later admitted the package could have been longer than he originally thought.” Posner sources this assertion to a televised mock trial of Lee Harvey Oswald in which, he claims, Frazier said, “[Oswald] had the package parallel to his body, and it’s true it could have extended beyond his body and I wouldn’t have noticed it.” (p. 224-224n)

This is a blatant distortion of what Frazier said. For starters, what Posner presents as a direct quote from Frazier is no such thing. In fact, he is passing off the words used by lawyer Vincent Bugliosi in his questioning as if they were spoken by Frazier during his answers. More crucially, Frazier never agreed that the package was longer than he had previously said it was, he only agreed that it could have been "protruding out in front of [Oswald's] body" without him seeing it. To this day, Frazier insists the package he saw was around two feet long and that Oswald carried it with one end cupped in his hand and the other tucked under his arm.

As to the implication in Case Closed that by turning up at Frazier’s house and then walking ahead of him into the Book Depository Oswald showed himself to have been in an unusual hurry that day, Frazier’s testimony puts the lie to this.

Firstly, despite Posner’s assertion, Frazier did not say that he “always drove the one block to pick Oswald up at Ruth Paine’s home.” He said, “I usually picked him up around the corner there,” but “once in a while I picked him up at the house and another time he was already coming down the sidewalk to the house when I was fixing to pick him up…” (WC Vol. 2, p.225) Furthermore, when Oswald’s face appeared at the window, Frazier looked at the clock and realised “I was the one who was running a little bit late…it was later than I thought it was.” (Ibid)

Secondly, when they arrived at the Book Depository, Frazier watched as Oswald “put the package he had…up under his arm” and got out of the car. Frazier himself stayed inside the car, "letting my engine run and getting to charge up my battery." (Ibid, 227) When Oswald noticed that Frazier was not with him, he stopped and stood "at the end of the cyclone fence waiting for me to get out of the car." (Ibid, 228) Once Frazier shut off the engine and exited the car, Oswald carried on walking and Frazier “followed him in.” (Ibid) Oswald gradually got further ahead of him, Frazier said, because he lagged behind to watch the nearby railroad tracks. “I just like to watch them switch the cars,” he testified, “…so I just took my time walking up there.” (Ibid) There is, then, no reason whatsoever to believe there was anything at all unusual about Oswald’s behaviour that morning.

The Sixth Floor

To lay the groundwork for his argument that Oswald was on the sixth floor of the Depository at 12:30 pm firing the shots that killed Kennedy, Posner claims that two employees saw him there shortly before noon. One of those workers, Bonnie Ray Williams, “spotted Oswald on the east side of that floor, near the windows overlooking Dealey Plaza” at 11:40 am. About five minutes later, Posner says, Charles Givens saw Oswald by the very window from which the shots were allegedly fired. (p. 225) Yet, as those who have studied the subject in detail know, the statements and testimonies of the Texas School Book Depository employees constitute a morass of confused and conflicting recollections that establish very little with certainty. In presenting Williams and Givens as placing Oswald on the sixth floor, Posner is not only cherry-picking from that overall morass, but he is cherry-picking from the variegating statements of those two witnesses.

When Williams gave his first statement to the FBI on November 23, 1963, he said that he saw Oswald on the first floor of the building at 8:00 am “filling orders.” The next time he saw Oswald was at approximately 11:30 when, Williams said, “he went down on an elevator from the sixth floor to the first floor…Charles Givens was on the other elevator, descending at the same time. As they were going down, he saw Lee [Oswald] on the fifth floor” Williams added that “while working on the sixth floor until 11:30 am on November 22, 1963, he did not see Lee or anyone else in the southeast corner of the building.” (Commission Document 5, p. 330) The next time he spoke to the Bureau, on March 19, 1964, he gave a completely different version of events. “The last time I saw Lee Harvey Oswald,” he said, “…was at about 11:40 am. At that time, Oswald was on the sixth floor on the east side of the building.” (WC Vol. 22 p.681)

Five days later, when he gave a deposition for the Warren Commission, Williams gave a third version, saying that, “The only time I saw [Oswald] that morning was a little after eight” on the first floor. (WC Vol. 3 p.164) When Commission lawyer Joseph Ball asked Williams if he saw Oswald on the sixth floor he replied, “I am not sure. I think I saw him once messing around with some cartons or something, back over on the east side of the building…as I said before, I am not sure that he really was on the sixth floor.” (Ibid 165-166) In any honest assessment, the best that can be said about Bonnie Ray Williams is that he was unsure of where and when he really saw Oswald that day.

Charles Givens is equally, if not more, unreliable. In his Dallas police affidavit of November 22, Givens made no mention of seeing Oswald at all. “I worked up on the sixth floor until about 11:30 am,” he said. “Then I went downstairs and into the bathroom. At twelve o’clock I took my lunch period.” (WC Vol. 24 p.210) The following day, Givens gave a statement to the FBI in which he repeated his previous assertion that he went to the first floor by elevator at 11:30, “where he used the rest room at about 11:35 am or 11:40 am” then “walked around on the first floor until 12 o’clock noon.” This time, however, he added that he had seen Oswald “working on the fifth floor during the morning filling orders. Lee was standing by the elevator in the building at 11:30 am when Givens went to the first floor.” Givens further stated that he had “observed Lee reading a newspaper in the [first floor] domino room where the employees eat lunch about 11:50 am.” (Commission Document 5, p. 329)

Several weeks later, on January 8, 1964, Givens told the Secret Service an entirely different story, claiming that he had seen Oswald “on the sixth floor at about 11:45 am…carrying a clipboard that appeared to have some orders on it…Shortly thereafter, Givens and the other employees working on the floor-laying project quit for lunch…” (Commission Document 87, p. 780)

Finally, on April 8, 1964, Givens told the Warren Commission he had left the sixth floor around 11:45 by elevator and seen Oswald “standing at the gate on the fifth floor.” When he got to the first floor, Givens claimed, he realised he had forgotten his cigarettes and so he went back up to the sixth floor to retrieve them. “When I got back upstairs, he [Oswald] was on the sixth floor” coming from “the window up front where the shots were fired from.” (WC Vol. 6 p.349)

Considering that the stories he told are mutually exclusive, it should be obvious that Charles Givens was a truly undependable witness. In fact, Lieutenant Jack Revill of the Dallas Police Special Service Bureau cautioned the FBI that, based on his office’s prior experience with Givens, he believed that Givens was the type of witness who would “change his story for money.” (Commission Document 735, p. 296) It is for that reason that I see little value in attempting to offer a judgement as to which of his conflicting accounts is most accurate. It is noteworthy, however, that Posner cautions elsewhere in Case Closed that “Testimony closer to the event must be given greater weight…” (p. 235). And yet he ignores his own advice entirely when it suits his purposes, as it does with Williams and Givens.

Posner writes that many critics have tried to prove Oswald was not on the sixth floor by “relying on his protestations, after his arrest and during his police interrogation, that he had been in the first-floor lunch room with ‘Junior’ Jarman, and gone to the second floor to buy a Coke near the time of the assassination.” (p. 227) Posner claims, however, that “contemporaneous statements of other workers who were in both lunch rooms say Oswald was in neither.” He goes on to state that Junior Jarman “denied ever seeing him during his lunch break” and “Troy West was inside the first-floor domino room eating lunch from 12:00 to nearly 12:30 and did not see Oswald during that half hour.”

To address the above it is important to note, as Posner does not, that the Dallas Police did not tape record a single word of Oswald’s numerous interrogations. As a result, critics and apologists alike have always been forced to rely upon the hearsay accounts of those who questioned him, rather than any verifiable, objective record. The officer who led the interrogations, Captain Will Fritz, told the Warren Commission that Oswald’s alibi was that he had had been eating lunch with two black employees, one known to him as “Junior” and another whose name Oswald did not remember. (WC Vol 4 p.224) Fritz claimed not to have kept any notes of the interrogations but this was proven to be false when a set of his brief, handwritten notes was donated to the National Archives a few years after the publication of Case Closed. What these notes revealed was that Fritz’s commission testimony was a somewhat distorted version of what Oswald told him. On page one of his notes, we find the following notation: “two negr, came in, one Jr.-+ short negro-.” These words appear to align much more closely with the report of FBI agent James Bookhout than they do with Fritz’s testimony.

Bookhout’s November 23, 1963, report of the first day of Oswald’s interrogations reveals that, rather than claiming to have eaten lunch with Junior, what Oswald really said was that,

…he had eaten lunch in the lunch room at the Texas School Book Depository alone, but recalled possibly two Negro employees walking through the room during this period. He stated possibly one of these employees was called ‘Junior’ and the other was a short individual whose name he could not recall… (R622)

What makes this doubly interesting is that both Junior Jarman and another, shorter, black employee named Harold Norman separately confirmed that they had indeed passed through the first-floor lunchroom around the time Oswald said he was there. (WC Vol. 3 p.201, p.189) And Norman further stated that he thought there had been someone else in the lunchroom while he was there but could not recall who it was. (WC Vol. 3 p.189) It is fair to say, then, that the testimony of Jarman and Norman tends to confirm rather than refute Oswald’s account of his whereabouts.

Posner treats readers to another of his own magic shows when he says that employee Troy West ate his own lunch in the first-floor lunchroom without seeing Oswald. West, who was a mail wrapper at the Depository, testified that he was in the habit of spending virtually his entire workday at his own workstation on the west side of the first floor, and November 22 was no different. He said he had quit for lunch “about 12 o’clock,” made himself some coffee “right there close to the wrapping mail table where I wrap mail,” and then “sat down to eat my lunch.” He was still there, eating his lunch, when police officers entered the building moments after the assassination. (WC Vol. 6 p.361) There is nothing in his testimony to even suggest that he spent his lunch break in the first-floor lunchroom. Posner’s retelling of West’s testimony is one more example of the author’s myth making.

Posner claims that “reliable testimony from the Depository places Oswald, alone, on the sixth floor by noon…” (p. 288) But he produces none. He goes on to allege that there was one witness with the “gift of super-eyesight” (p. 250) who saw Oswald in the sixth-floor window firing the shots and was able to positively identify him. The witness to whom he is referring is Howard Brennan, an obvious prevaricator upon whom no serious investigator would rely.

Quoting liberally from a book Brennan wrote decades after the assassination, Posner writes that he was “leaning against a four-foot-high retaining wall on the corner of Houston and Elm, directly across the street from the School Book Depository.” A few minutes before the assassination, Brennan “noticed a man in the southeast corner of the sixth floor…he was five feet eight to five feet ten inches tall, white, slender, with dark-brown hair, and between twenty-five and thirty-five years of age.” When the shooting began, Brennan looked up and saw “the same young man” with “a rifle in his hands, pointing toward the Presidential car.” (p. 247-248) Minutes later, he gave a description of this man to a uniformed police officer. Brennan was subsequently taken to police headquarters to view a line-up where he failed to identify Oswald as the man in the window.

How does Posner deal with the fact that Brennan did not identify Oswald on the evening of the assassination? He writes, “Brennan could have picked Oswald from the line-up, but did not do so because he feared others might be involved in the assassination, and if word leaked out that he was the only one who could identify the trigger man, his life would be in danger.” (p. 249) This is indeed the excuse Brennan later dreamed up. It is also nonsense. As Mark Lane pointed out in his penetrating, ground-breaking book Rush to Judgment, Brennan’s excuse is invalidated by the fact that he most certainly knew of at least one other eyewitness, Amos Euins, because Brennan himself had pointed him out to Secret Service Agent Forrest Sorrels. (WC Vol. 7, p.349) Furthermore, as Lane noted, "Brennan's anxiety about himself and his family did not prevent him from speaking to reporters on November 22, when he gave not only his impressions as an eyewitness but also his name." (Lane, Rush to Judgment, p. 92)

Brennan's real reason for failing to identify Oswald on the evening of the assassination had nothing to do with fear of reprisal. As he admitted in a statement to the FBI on January 10, 1964,

…after his first interview at the Sheriff's Office…he left and went home at about 2 P.M. While he was at home, and before he returned to view a line-up, which included the possible assassin of President Kennedy, he observed Lee Harvey Oswald's picture on television. Mr. Brennan stated that this, of course, did not help him retain the original impression of the man in the window with the rifle…(WC Vol. 24 p.406)

Based on this admission alone, Brennan’s latter-day claims are completely worthless.

It is also very telling that Brennan refused to cooperate with the House Select Committee on Assassinations when it reinvestigated the assassination fifteen years later. In March 1978, Committee staff contacted Brennan hoping to talk quietly with him at his home in Texas, but Brennan stated that the only way he would talk to anyone was if he was subpoenaed. A month later the Committee asked him to reconsider but he refused and was subsequently informed that he would be subpoenaed to testify on May 2. According to a HSCA staff report, Brennan then said that he "would not come to Washington and that he would fight any subpoena.” And, in fact, Brennan was belligerent about not testifying. He stated that he would avoid any subpoena by getting his doctor to state that it would be bad for his health to testify about the assassination. He further told them that even if he was forced to come to Washington he would simply not testify if he didn't want to. (HSCA contact report, 4/20/78, Record No. 180-10068-10381) Between May 15 and May 19, 1978, Committee staffers made eleven separate attempts to present Brennan with previous statements he had made to try to get him to simply sign a form asserting that these previous statements were accurate. He refused. Even after the committee took the extra step of granting Brennan immunity from prosecution he would not budge. Of course, none of this appears in Case Closed.

Posner and the Sniper’s Nest

In 1969, Dallas Police Chief Jesse Curry candidly admitted to the paucity of evidence placing Oswald in the so-called “sniper’s nest,” stating that “No one has ever been able to put him in the Texas School Book Depository with a rifle in his hand.” (Dallas Morning News, Nov 6, 1969) Despite much hyperbole, Posner does nothing to prove Curry wrong. He claims that Oswald was responsible for creating the sniper’s nest, a “three-sided shield” made from cartons of books that “protected the sniper from being observed by anyone who wandered onto the sixth floor.” (p. 226) Yet, as Posner himself admits, the boxes were piled up in front of the sixth-floor window by the workers who were laying a new floor. Furthermore, one of Posner’s own witnesses, Bonnie Ray Williams, was part of the floor-laying crew and his testimony indicates that the so-called “three-sided shield” was simply a result of the way they placed the boxes. “We moved these books kind of like in a row like that,” he said, “kind of winding them around.” (WC Vol. 3 p.166) As author Don Thomas has suggested, the fact that a pack of cigarettes was found in the corner suggests that what the floor crew had created was a hidden space to sneak a quick smoke without being observed by their supervisor. (Hear No Evil, p. 36)

Posner attempts to attach special significance to the fact that Oswald’s palmprint and fingerprints were found on two of the boxes in the window area. But given that his job involved handling those very boxes, the presence of his prints upon them is neither surprising nor particularly noteworthy. Posner also quotes Luke Mooney, the deputy sheriff who discovered the “sniper’s nest,” as stating that one of the boxes “looked to be a rest for the weapon” because it showed “a very slight crease…where the rifle could have lain―at the same angle that the shots were fired from.” (p. 269) This was refuted, however, by crime scene detective Carl Day who said that although he initially “thought the recoil of the gun had caused that” crease, he “later decided that it was in the wrong direction.” (WC Vol. 4, p.271) Indeed, crime scene photographs show that the crease points towards Houston Street, not Elm. (WC Vol. 21, p.643)

The Rifle and the Shells

The most incriminating evidence against Oswald is the fact that the 6.5 mm Mannlicher Carcano rifle he had allegedly ordered through his P.O. box, and three rifle shells fired from that weapon, were said to have been found on the sixth floor a little over forty-five minutes after the assassination. Posner admits in a footnote that the rifle was originally identified as a 7.65 Mauser and many critics have argued that this suggests the weapons were swapped in order to incriminate Oswald. But for the sake of argument, I will accept Posner’s assertion that the “initial misidentification” was a mistake that occurred as a result of the “considerable similarities between a bolt-action Mauser and a Carcano.” (p. 271n) In the end, the question that needs to be asked is what evidence is there that Oswald himself handled that rifle on the day of the assassination? The answer is none.

Posner writes that when Lieutenant Day inspected the Carcano at the Dallas police crime lab later that evening, he found Oswald’s right palmprint on the wooden stock. (p. 283) Yet when the rifle was turned over to the FBI and examined hours later by Supervisor of the Bureau’s Latent Fingerprint Section, Sebastian Latona, he found no trace of any such print. (WC Vol. 4, p. 24) And, in fact, the FBI was not informed of Day’s alleged lifting of the print until November 29―seven days after he allegedly discovered it and five days after Oswald was murdered in the basement of police headquarters. (Ibid 24-25) Neither Day nor anyone else ever offered an adequate explanation for this delay, leading to speculation that the print was obtained by some unscrupulous means after Oswald’s death. Posner tries to get around this by quoting from his own personal interview with Day in which the former police lieutenant claimed to have told FBI agent Vincent Drain of the print at the time he handed the rifle over on the night of November 22. But not only was this flatly disputed by Drain, Day made no such claim during his Warren Commission testimony. Nor in his written report of January 8, 1964. Again, Posner in ignoring his own rule about testimony near the time of the incident.

Putting these evidentiary issues aside for a moment, and again assuming Day’s account is accurate, what does the print tell us about Oswald’s guilt or innocence in the assassination? In truth, it is more suggestive of the former than the latter. Because even Lt. Day did not claim that the print, which was only visible in its entirety when the rifle was disassembled, could be said to place the Carcano in Oswald's hands on November 22nd In fact, he described the palmprint as an "old dry print" that "had been on the gun several weeks or months." (WC Vol. 26 p.831; Anthony Summers, Conspiracy, p. 54) So accepting the palmprint as genuine only places the disassembled rifle in Oswald's hands "weeks or months" before the assassination.And this fact takes on added significance when considering Posner’s suggestion that Oswald reassembled the rifle while on the sixth floor, likely without the use of a screwdriver since none was found. It seems highly improbable that Oswald could have handled the weapon so heavily that day without leaving any new prints. Therefore, when considered alongside the fact that the rifle was known not to have been in his possession for at least two months before the assassination, and in conjunction with the firm belief of Frazier and Randle that whatever package Oswald may have carried that day it was too small to hold the rifle, the state’s own evidence strongly suggests that he did not touch the Mannlicher Carcano at all on November 22.

Turning our attention to the three bullet shells found in the sniper’s nest, their handling by the Dallas police is a prime example of why so much suspicion has been cast on the investigating authorities in this case. Posner claims that the hulls were first observed by deputy sheriff Mooney; that Lt. Day “photographed the three bullet shells in their original position;” (p. 269) and that the photographs show they were found “in a random pattern.” (p. 270n) This, however, is provably false. A news cameraman for WFAA-TV in Dallas named Tom Alyea told Gary Mack in 1985 that, before the crime scene unit arrived, Captain Fritz had picked up the shells and held them up for Alyea to see before throwing them back down on the floor. (Jim Marrs, Crossfire, p. 437-438) Alyea’s account may sound unbelievable, but it is, in fact, corroborated by the Warren Commission testimony of deputy sheriff Mooney. Mooney told the commission, “I stood and watched him [Fritz] go over and pick them up and look at them.” Additionally, when shown the crime scene photographs, Mooney noted that they showed the shells to be “further apart than they actually were.” (WC Vol. 3 p.286)

As if the above mishandling of the cartridge cases was not bad enough, Lt. Day testified that he picked the shells back up off the floor of the sniper’s nest, placed all three in an envelope, and handed the envelope to another detective. Then, at 10:00 that evening, the envelope was handed back to him with only two hulls in it. Unbelievably, as Day confessed, the envelope had not been sealed and neither himself nor anyone else had marked the shells found at the scene with their initials. (WC Vol. 4 pp.253-254) This failure to properly record the chain of evidence in accordance with standard police procedure left the evidence vulnerable to tampering. For that reason, it is hard to believe that the rifle shells could have been entered into evidence had Oswald lived to face trial. Any defence attorney worth his salt would have demanded they be thrown out for lack of proof and, assuming the law was followed, the judge would have had little choice but to comply. Of course, Posner mentions none of this in his “brilliant and meticulous,” Pulitzer Prize-nominated account.

Marrion Baker and The Girl on the Stairs

Oswald’s known whereabouts and his demeanour approximately ninety seconds after the assassination also provide compelling reason to believe he had not been on the sixth floor firing the rifle. As Posner details, a police motorcycle officer named Marrion Baker, who had been riding in the Presidential motorcade, had run into the Book Depository within seconds of the assassination, believing the shots may have been fired from the building’s roof. When he entered the building, he quickly made his way up the stairs accompanied by building manager Roy Truly. Catching sight of Oswald through the window in the second-floor lunchroom door, Baker halted his ascent, burst into the room with pistol in hand, and demanded Oswald identify himself. AfterTruly informed Baker that Oswald was an employee, the pair continued their dash up the stairs. Oswald, meanwhile, bought himself a Coke from the soda machine and strolled calmly through the offices and down to the first floor.

Baker later told the Warren Commission that Oswald appeared calm, collected, and “normal” during their encounter. (WC Vol. 3 p.252) Truly concurred, stating that Oswald “didn’t seem to be excited or overly afraid or anything. He might have been a bit startled, like I might have been if somebody confronted me. But I cannot recall any change in expression of any kind on his face.” (Ibid, 225) Is it likely that, having rapidly fired three shots at the President of the United States, hidden the murder weapon, weaved his way between stacks of boxes, and ran down four flights of stairs―all in less than ninety seconds―Oswald would have appeared cool, calm, and expressionless when confronted by a police officer with his pistol drawn? And having managed to escape arrest at that moment, is it reasonable to suggest his first thought was not to get out of the building as quickly as possible but to buy himself a Coca Cola? If I was on Oswald’s jury, these questions would weigh heavily on my mind.

Perhaps more important than Oswald’s calm demeanour is the fact that two other employees,Vicki Adams and her friend Sandra Styles-who had both watched the assassination from a fourth-floor window of the depository building--were very likely on the noisy, old, wooden steps at the same time Oswald was supposed to have run down them. And neither woman saw nor heard any sign of& him. Posner tries to dispose of this problem by following the Warren Commission’s lead in asserting that “although [Adams and Styles] thought they came down quickly, they actually did not arrive on the first floor until at least four to five minutes after the third shot.” (p. 264) The author may have just about gotten away with this argument in 1993, but it no longer appears to have any viability today.

In 2012, author Barry Ernest published a landmark book titled The Girl on the Stairs. In it, the author focussed primarily on his search for Vicki Adams and the evidence that would corroborate or refute her story. He tracked down Adams and her colleagues, asking questions that had never been asked before, and made trips to the National Archives looking for crucial documents. In 1999, Ernest discovered a bombshell document in the Archives in the form of a June 2, 1964, letter written by Assistant United States Attorney, Martha Joe Stroud, to Warren Commission Chief Counsel, J. Lee Rankin. This letter contains the only known reference in the Commission's files to an interview with Dorothy Garner, Adams's supervisor who had stood with her at the fourth-floor window when the shots were fired. The letter says, “Miss Garner…stated this morning that after Miss Adams went downstairs she (Miss Garner) saw Mr. Truly and the policeman come up.”

Recognizing the importance of this statement, Ernest tracked Garner down to see if her recollection would corroborate the Stroud letter. When he interviewed her, Garner confirmed that Adams and Styles had left the window immediately after the shots were fired, with her “right behind” them. She further stated that she had not descended the stairs with her colleagues but had gone to a storage area by the stairway. She stayed there long enough to see Baker and Truly coming up the stairs after their encounter with Oswald in the second-floor lunchroom. What she did not see in the intervening seconds was Oswald descending from the sixth floor. (Ernest, The Girl on the Stairs, pp. 267-268) This is hugely significant because Oswald could not possibly have got down those stairs ahead of Styles and Adams, and if he did not walk down them in between the time Adams and Styles went down and Baker came up, then he could not have been on the sixth floor at the time of the assassination. The corroborative accounts of Adams, Styles, and Garner are, therefore, much less consistent with Oswald being present on the sixth floor during the assassination than with his own claim to have been on the first floor eating lunch and making his way upstairs to buy a Coke.

The Murder of Kennedy

Ernest is careful not to overstate what his research reveals, admitting that “What puts Oswald in a place other than the sixth floor is indeed circumstantial.” Yet, as he also notes, “it is no more circumstantial than everything that has been used to put him on the sixth floor.” (Ernest, p. 282) Indeed, we cannot say for absolute certain where Oswald was during those crucial seconds and, at this late stage, it is unlikely that definitive proof will emerge either way. But the most important question is not whether Oswald was on the sixth floor firing a rifle, it is whether it was even possible for one, lone gunman to have accomplished the assassination. And the truth is that, despite Posner’s protestations, the evidence demonstrates overwhelmingly that the shooting had to have been the work of multiple gunmen.

Posner, of course, argues that only three shots were fired, all from the sixth floor of the Texas School Book Depository. In discussing the “ear-witnesses,” he notes that of the “nearly two hundred witnesses who expressed an opinion…over 88 percent heard three shots.” He also uses his own set of statistics to downplay the significant number of bystanders who thought the shots were fired from the general area of the “grassy knoll,” to the right front of the Presidential limousine, and claims that the “echo patterns in Dealey [Plaza] make locating the direction of the shots more difficult…” And finally, he makes much of the fact that only “2 percent” of witnesses “thought [shots] came from more than one direction.” This, he says, “is a critical blow to most conspiracy theories, since those who charge there was a second gunman usually place the additional shooter…on the grassy knoll. But even these writers acknowledge that most of the shots came from the rear.” (pp. 236-237)

Posner’s first point, the number of witnesses who reported hearing three shots is, to my mind, more curious than it is compelling. If one accepts Posner’s postulate that witnesses were confusing echoes with actual gunshots, then is it not reasonable to expect those witnesses to report hearing more than the three shots the author says were fired? Of course, Posner is―as all those who support the official story must―overstating the effect of echoes in Dealey Plaza to diminish the testimony of those who thought shots came from the knoll. The author quotes Dr. David Green, an acoustics expert hired by the House Select Committee on Assassinations (HSCA), as saying he found it “hard to believe a rifle was fired from the knoll.” (p. 237) But he does not reveal the fact that the HSCA retainedDr Green and two other psychoacoustic experts, Dr. Dennis McFadden and Professor Frederick Wightman, to be present in Dealey Plaza while three sequences of test shots were fired from the Book Depository and the knoll. These experts placed themselves at various locations in the plaza and recorded their impressions as to the origin of the sounds, and the results were unambiguous. Shots fired from the Depository sounded like they came from the Depository and shots from the knoll sounded like shots from the knoll. (HSCA Vol. 8, p.144)

There is no doubt that the spectators to President Kennedy’s brutal execution were caught by surprise and few if any were likely to have been counting the number of shots they heard. In Reclaiming History, Vincent Bugliosi cites the textbook Firearms Investigation, Identifications, and Evidence, which rightly cautions that “little credence…should be put in what anyone says about a shot or even the number of shots. These things coming upon him suddenly are generally inaccurately recorded in his memory.” (Bugliosi, p. 848) With this advice in mind, what is one to make of the apparent three-shot consensus to which Posner refers? The most likely answer is that the consensus is a result of a type of groupthink. As the Warren Commission reported, “Soon after the three empty cartridges were found, officials at the scene decided that three shots were fired, and that conclusion was widely circulated by the press. The eyewitness testimony may be subconsciously colored by the extensive publicity given the conclusion that three shots were fired.” (WR pp.110-111)

As to Posner’s point that only a tiny percentage of witnesses thought shots came from more than one direction, this is hardly the slam dunk the author thinks it is. The results of the HSCA’s psychoacoustic tests showed that shots from the Depository and shots from the knoll were distinct from one another. And yet, it is worth noting that the HSCA experts admitted that"The emotional condition of our observers during the test and the emotional condition of the people during the assassination were undoubtedly quite different." (HSCA Vol. 8, p.146) Indeed, the surprising nature of the event, and the ensuing shock and confusion, should not be underestimated. A definitive answer as to why more witnesses did not report hearing shots from multiple directions remains elusive. However, it is certainly reasonable to suggest that, for many of the ear-witnesses, their impression as to the source of the shots was informed by only one of the shots they heard, and they naturally assumed that the other sounds were coming from the same direction.

One of the few witnesses who recalled hearing shots from two directions was also one of the most important, not just because of what he heard, but because of what he saw and did. S.M. Holland, who was standing on the railroad overpass facing the plaza when the shooting began, heard at least three shots from the corner of Houston and Elm streets and one from the grassy knoll. As he told the Warren Commission, when the sound of a “report” drew Holland’s gaze to the trees in front of the fence on the knoll, he saw “a puff of smoke come out from under those trees…” (WC Vol. 6, p.244) Holland was so sure of what he saw and heard that he “run around the end of the overpass, behind the fence to see if I could see anyone up there behind the fence.” (Ibid) James Simmons, who was not called to testify for the commission, told author Mark Lane in a filmed interview that he toohad heard a sound like a "loud firecracker or a gunshot" coming from behind the wooden fence, accompanied by “a puff of smoke that came underneath the trees on the embankment." Simmons joined Holland in his dash to the area behind the wooden fence, but because it took them a minimum of two minutes to reach the area, they found no one there. As Holland noted, if there had been a gunman there, “They could have easily have gotten away before I got there". (Mark Lane, Rush to Judgment, p. 35)Although they did not find an assassin, as Simmons recalled, they did find"footprints in the mud around the fence, and…on the wooden two-by-four railing on the fence" as well as "on a car bumper there, as if someone had stood up there looking over the fence". (Ibid, p. 34)

Several other witnesses on the overpass such as Richard Dodd, Austin Miller, and Thomas Murphy saw the same as Holland and Simmons, a fact that is most inconvenient to Posner. He tries to nullify one of them, Austin Miller, by writing that Miller “thought the smoke he saw was ‘steam.’” (p. 256) But in the very statement Posner cites, Miller is quoted as saying that he saw “something which I thought was smoke or steam [my emphasis] coming from a group of trees north of Elm off the railroad tracks.” (WC Vol. 19, p.485) Posner being Posner simply excises the word “smoke” from his quotation. He tries the very same trick with Simmons, writing that Simmons saw “exhaust fumes” from the embankment. (p. 256) When, in fact, what Simmons’s affidavit really says is that “he thought he saw exhaust fumes of smoke near the embankment.” (WC Vol. 22 p.833)

To make these troublesome observations disappear, Posner resorts to claiming that “since modern ammunition is smokeless, it seldom creates even a wisp of smoke”. This assertion is easily disproven by visiting a rifle range or simply googling the words “rifle smoke.” In 2023, it is not difficult to find pictures like the one below.

rifle fire smoke

As firearms expert Monty Lutz told the HSCA, "both 'smokeless' and smoke producing ammunition may leave a trace of smoke that would be visible to the eye in sunlight. That is because even with smokeless ammunition, when the weapon is fired, nitrocellulose bases in the powder which are impregnated with nitroglycerin may give off smoke, albeit less smoke than black or smoke-producing ammunition. In addition, residue remaining in the weapon from previous firings, as well as cleaning solution which might have been used on the weapon, could cause even more smoke to be discharged in subsequent firings of the weapon."(HSCA Vol. 12, p. 24-25)

Posner makes a last-ditch attempt at nullifying the eyewitness evidence of smoke on the knoll by stating that “in 1963, there was a steam pipe along the wooden fence near the edge of the Triple Underpass…If there was smoke, it is most likely that Austin Miller was right, and it was from the pipe.” (p. 256) Why smoke would come from a steam pipe is something Posner never attempts to explain. Regardless, although he is correct that there was such a pipe near the underpass—it can be seen in the documentary film Rush to Judgment—what he fails to reveal is that this pipe was nowhere near the area in which the smoke was observed. In fact, it was over 100 feet away. Therefore, it cannot be said to account for the smoke observed by witnesses during the shooting.

An important witness to whom Posner omits any reference in his text is Joe Marshall Smith, a Dallas police officer who ran to the knoll area after the shooting because a bystander told him “They are shooting the President from the bushes.” (WC Vol. 7, p.535) When he got to the parking lot behind the fence, he spotted a man standing by a car and so pulled his pistol from its holster. “Just as I did,” Smith told the Warren Commission, “[the man] showed me that he was a Secret Service agent.” (Ibid) As a result, he let the stranger go and went about checking the cars in the parking lot. The problem here, as the Commission knew but did not tell Officer Smith, is that there were no genuine Secret Service agents in Dealey Plaza at that time because they had all accompanied the Presidential limousine in its race to Parkland Hospital. (HSCA Vol. 5, p.589)

Posner refers obliquely to allegations of a Secret Service impersonator, suggesting that witnesses to any such individual were “mistaken,” and claims that he “reviewed the 1963 badges” for the ATF, IRS, Army Intelligence, and other such organizations, and found that “several look alike.” (p. 269n) But Posner’s subjective assessment as to the similarity of these various badges does not address the fact that Smith specifically said that he had “seen those [Secret Service] credentials before” November 22, and that the identification he was shown by the man behind the fence “satisfied” both Smith and a deputy sheriff that accompanied him. (Summers, Conspiracy, p. 81) As he later admitted, Officer Smith came to deeply regret letting the man go, recalling that,

He looked like an auto mechanic. He had on a sports shirt and sports pants. But he had dirty fingernails, it looked like, and hands that looked like an auto mechanic’s hands. And afterwards it didn’t ring true for the Secret Service…I should have checked that man closer, but at the time I didn’t snap on it… (Ibid)

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Last modified on Thursday, 11 May 2023 12:03
Martin Hay

Martin Hay is a writer and musician living near London. He has been a keen student of the assassinations of JFK and Martin Luther King for over 15 years and, as well as contributing popular articles to CTKA, maintains his own well-regarded blog, The Mysteries of Dealey Plaza.

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