DAVID AXELSON SAID:
Mr. Von Pein - Okay, here's a question for you:
Assume that you are defending LHO against the charge that he murdered JFK. Ignore the legal maneuvering that might help Oswald's case (such as a motion to exclude the Bethesda autopsy witnesses on the grounds that Texas law required the Dallas medical examiner perform the autopsy).
What approach or alternative scenario would, in your opinion, stand the best chance of producing a "Not Guilty" verdict?
And, of course, what evidence would you rely on to support that approach or scenario?
For example, you could argue that Oswald has an alibi, that he was in the second-floor lunch room, and the evidence that supports this is that he couldn't have come down from the sixth floor to the second floor (where Baker saw him), because Victoria Adams would testify that she descended the stairs immediately after the assassination, and did not see or hear Oswald.
So that would be your approach ("alibi") and supporting witness (Victoria Adams).
I'm not looking for a thesis here, just a quick analysis by some of you who are more familiar with the evidence than I.
To be honest, I couldn't think of a GOOD approach myself; I wound up proposing that some unidentified conspiracy had framed Oswald, but IMO any competent prosecutor would have destroyed that argument rather handily. But maybe you can think of something I missed.
Regards,
D. Axelson
DAVID VON PEIN SAID:
It is, indeed, difficult to come up with any kind of reasonable defense for Lee Oswald, given the evidence in the case that so clearly indicates his guilt--in TWO murders. But it's possible the Tippit murder might have been severed from the JFK murder trial, had there been one. Do you think that would have happened?
Anyway, since ALL of the physical evidence points to Oswald, I can't see any legitimate defense for Oswald's counsel. They would, therefore, be pretty much forced into arguing the same lame things we always hear from the CTers today -- the "Everything Is Fake" approach.
How would it even be possible for Oswald's attorneys to NOT offer up such a defense, given the evidence that exists here (guns, bullets, shells, prints, paper bag, fibers, etc.)? And that doesn't even count Oswald's own guilty-like actions.
How could a defense lawyer sidestep Oswald's fleeing the scene of the crime (when also considering the evidence that was found up on the sixth floor)? And his lying (twice) about the "curtain rod" package?
That lie about the "curtain rods"--all by itself--might be enough to tip the scales in the mind of at least one juror. For why--if he's innocent--does he TWICE tell such a blatant falsehood to co-worker Buell Wesley Frazier about the contents of that brown paper package?
Lee's in bad shape just based on that big fat lie alone.
I suppose LHO's lawyers could always claim "Not Guilty By Reason Of Insanity".
Or:
"Not Guilty Because CTers Insist Upon Saying Oswald Never Ordered The C2766 Rifle, Even Though The Paper Work Proving He Ordered It Is Six Miles Deep With Oswald's Handwriting On Most Of It".
:-)
And the "Victoria Adams Didn't See Him" defense tactic would sink rather quickly too, IMO. Here's why.
It's a good topic to ponder, however -- i.e., WHAT KIND OF DEFENSE WOULD YOU COME UP WITH FOR A PERSON WHO IS SO OBVIOUSLY GUILTY?
Well, I guess Johnnie Cochran and Company were faced with that same dilemma in 1995. But, fortunately for them, they had a man named Mark Fuhrman and those racy tapes to help them set a double-murderer free.
DAVID AXELSON SAID:
Mr. Von Pein -
[Quoting DVP from an earlier post:]
"But it's possible the Tippit murder might have been severed from the JFK murder trial, had there been one. Do you think that would have happened?"
[End Quote.]
That, actually, is one of the moves that I expect LHO's defense counsel would have made, had there been a trial. It's extremely hard to see how to argue that LHO isn't JFK's killer, if the evidence comes in that he killed Tippit. It's actually a two-step process-first, a motion to sever the trial for the murder of Tippit from the trial for the murder of JFK, and then a separate motion to exclude the "Tippit evidence" from the JFK trial.
Would it have worked? My conclusion was that the judge would have granted the motion for a separate trial, but denied the motion to exclude. I think the judge would have ruled that the "Tippit evidence" showed Oswald's "guilty knowledge", that it was evidence of "flight to avoid prosecution", or possibly that it was all part of the same set of circumstances.
You haven't mentioned it, but Oswald's attempt to kill Nick McDonald presents many of the same issues. It's hard to suggest that Oswald lacked the will to kill JFK, when he pulled out his gun and tried to shoot McDonald. So as a defense attorney, you would want to keep that out of the JFK trial as well . . . but I think the evidence of LHO's actions at the Texas Theater during his arrest are probably more admissible than the Tippit encounter. And that, actually, makes it HARDER for the judge to exclude the "Tippit evidence"; it doesn't make much sense for the judge to say that the "Tippit evidence" is inadmissible, once he's decided that the "McDonald evidence" can come in.
Take a look at that 1964 film, "The Trial of Lee Harvey Oswald", and you'll see that the filmmakers reached that same conclusion, since the evidence presented in that version includes the "Tippit evidence". Not conclusive on the question, certainly, but a pretty good indication as to how contemporary lawyers viewed the situation.
[Quoting DVP:]
"I suppose LHO's lawyers could always claim `Not Guilty By Reason Of Insanity'."
[End Quote.]
True, and that's the defense offered in the 1964 film. Couple of problems with that approach, however. First of all, we today have no evidence that 1963 LHO met the legal requirements for a claim of insanity. No psychiatrist or psychologist examined him during that time period, so we have none of the expert testimony that would have been required.
The classic definition of insanity is the "M'Naghton test": "to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong."
Did Oswald have a "disease of the mind"? Well, he would probably be diagnosed today as having antisocial personality disorder, but I doubt that would qualify as a "disease". Nor did he have a "defect of reason" as a result; he was able to function normally enough on a daily basis-hold a job, plan for the next day, and so on. And he CLEARLY knew the nature, quality, and wrongfulness of his actions, since he fled the scene.
So IMO, "insanity" had no chance of working as a defense. And that's assuming you could have gotten Oswald himself to agree to that approach.
At any rate, your analysis pretty much confirms the conclusions I had reached. So thanks!
But that brings us to your final question, which I wrestled with as well: "WHAT KIND OF DEFENSE WOULD YOU COME UP WITH FOR A PERSON WHO IS SO OBVIOUSLY GUILTY?"
What I came up with for my presentation (which was (a) the best of a bunch of BAD options, and (b) extremely unlikely to succeed) was, in fact, a "conspiracy to frame" defense. I argued that person or persons unknown might have broken into the Paine garage, stolen Oswald's rifle, smuggled it into the TSBD, and used it to kill JFK. They had also seen Oswald carrying his package, realized that it would have his fingerprints on it, and stolen that from wherever he placed it in the TSBD, and dropped it in the sniper's nest.
This approach conceded that all of the evidence linking Oswald to the rifle and the sniper's nest was correct (that is, the rifle DID have his palm print on it, since it was his rifle), but attempted to wriggle though the cracks to offer a plausible alternative scenario (i.e., a "reasonable doubt"). Would it have worked? Almost certainly not, but that glimmer of hope seemed to me better than anything else a defense attorney might have tried.
The hardest part of that approach would have been keeping Oswald himself off the stand; I believe that once LHO started testifying, he would have had NO chance of winning acquittal. (Wade's first question on cross-examination: "Now, Mr. Oswald, is it true that you're a COM-MUN-NIST?")
Regards -
D. Axelson
DAVID VON PEIN SAID:
Thank you, Mr. Axelson, for your follow-up post above. I enjoyed reading it. Very interesting stuff.
David Von Pein
January 7-8, 2015
