7. OSWALD'S LEGAL RIGHTS

Perhaps the most radical and basic concept of the American Constitution is that of the preeminent rights of the individual. First enunciated in the Declaration of Independence, it was made the basic law of the land in the Constitution, and has since been fortified by court rulings. This then almost heretical conviction of our founding fathers may, in fact, be the major contribution of the American society to the entire world. From before our Revolution, uncountable hundreds of thousands of Americans have offered and given their lives that this exalted principle might survive. For generations it has been the spark that set fires for freedom burning all over the world.

What are these rights that have come to be called "legal rights?" They are not alone the right of the minority groups for equality with all others. They are the rights of all. Today they are so fixed and automatic in our everyday existence that most of us have to stop and think to realize what these essential legal guarantees are. Fundamentally, we believe no man has any rights every other man does not have, and that no man has any less rights than all others. These include the right to life; to a fair trial by an impartial and unprejudiced jury; to counsel of his own choice; protection against self-incrimination, even if only feared; and protection from abuse of the great powers of government.

Through the police, government can exercise almost inconceivable abrogations of the rights of individuals, and, the courts have been the restraints against such transgressions. Today, what the police may or may not do has been, so carefully defined by the judiciary that all police know of the limitations placed upon them, at least by existing laws and decisions.

In theory, at least, Lee Harvey Oswald had all these rights until the moment of his murder. Whether or not he was denied his rights is, as a matter of the highest principle, an all-important question. This effort to answer the question is not directed at the now academic question of Lee Harvey Oswald and whether government and the country allowed him less than he was entitled to. The question has now become why he was treated as he was, in the context of the ancient legal maxim, "cui bono?", or "who profits?" Was there a purpose behind the persistent and systematic abuse of this unknown and almost unwanted man, entirely unimportant except for the crimes with which he was charged, if any American can be legally unimportant?

Among the first assurances that flowed from Dallas after Oswald's apprehension -- the first and most reemphasized one was his guilt -- was the assurance that he was enjoying all legal rights. When the composition of the Commission announced, with the Chief Justice as Chairman and the membership including prominent lawyers, outstanding Members of the Congress, and a staff headed by a former Solicitor General of the United States, it was assumed that, in the remote event Oswald's rights had been denied or even limited, the Commission would so state and place the blame.

With the appearance of the Report, the news media again assured us this had been exhaustively examined and all fundamental American rights had been both allowed and enjoyed.

The most careful analysis of the Report shows that this statement is untrue.

At almost every step and in almost every way, with the pretense of legality always emphasized, Lee Harvey Oswald was, as a practical matter, either denied or prevented from exercising his rights. In the Report itself the question is barely touched upon.

In a casual, superficial manner, it is suggested in the "Summary," in a brief paragraph. It is avoided in a sub-section entitled "Oswald's Legal Rights," part of the Fifth Chapter, "Detention and Death of Oswald" (R196-242). This subsection is one of the 900 pages in the Report.

The Report at no point states what Oswald's legal rights were nor how or whether they were observed. Nowhere does the Commission face this basic issue. It is basic because it is the substance of America and it is basic because it is essential to any effort really to learn what did happen and who really did what in Dallas November 22, 1963. Without examining those terrible events in this way, they could not be truly examined and the question of conspiracy could never be answered.

The sorriest spectacle of all was the shameful pretense that before the Commission Oswald's interests would be diligently guarded by outstanding lawyers. Perhaps, as lawyers say, the question was "moot" with Oswald's death. In that case, there should have been no pretense that his name, at least, was being afforded safeguards.

Ours is an adversary legal system. The accused is presumed innocent until convicted. The facts are aired publicly, with the freely selected representative of the accused given full opportunity to question them, to prevent illegal methods and tactics, to examine witnesses not as the prosecutor wants but as the interests of his client demand. In this manner is the presumed truth presented to a jury. The court is not by design a partisan, and it is not the function of the court to safeguard the interests of the prosecution alone. With Oswald's murder he was, of course, denied his day in court. But also with his murder there ended the guarantee of an adversary proceeding in which the prosecutor would have every allegation scrutinized and rebutted if possible.

The Commission decided it could not or would not conduct an adversary proceeding, and in making this decision, it was on solid ground with all the law behind it. Congressional investigations, for example, also are not adversary proceedings. But they are surrounded by many safeguards, including public proceedings except in narrowly defined areas. Step by step they are subject to examination by at least the public and the press. The Commission decided to conduct its business in secret except where those it was hearing desired otherwise. Hence, almost all its hearings were secret. Those it was hearing found their interests best served by no publicity.

But this did not mean that the Commission should adopt a partisan attitude and conduct its inquiry in the manner of a prosecutor preparing a case as it is clearly evident from its own Report it did.

In its widely publicized "Conclusions" that, together with its "Summary," constitute the first chapter and formed the basis for most of the publicity when the Report was issued, the Commission found it necessary to reach no conclusions with respect to Oswald's legal rights as such. But in its conclusions concerning his interrogations and detention, it did nibble a bit at the edges, saying, "Except for the force required to effect his arrest, Oswald was not subjected to any physical coercion by any law enforcement officials. He was advised that he could not be compelled to give any information and that any statements made by him might be used against him in court. He was advised of his right to counsel. He was given the opportunity to obtain counsel of his own choice and was offered the legal assistance of the Dallas Bar Association, which he rejected at that time." In two subsequent paragraphs, the Commission found that the presence of media representatives as he was taken to and from the interrogations subjected him to "harassment and (was) not conducive to orderly interrogation or the protection of the rights of the prisoner" and that "numerous statements, sometimes erroneous, made to the press by local law enforcement officials . . . would have presented serious difficulties to the obtaining of a fair trial for Oswald" (R20)

Even this is in the context of an inferred apology for the police because of the "confusion and disorder in the police station." An interest in precision would suggest the rephrasing of the comment on the campaign of misinformation waged by public authority in Dallas to "sometimes not erroneous."

Having stated the Commission's only relevant conclusions, let us see what the appropriate chapter, in which there are no conclusions, discloses. After a brief physical description of the layout of the third floor of the Dallas Police and Courts Building, containing police headquarters, the Report presents a chronology of the things that happened to Oswald. He was interrogated for a total of 12 hours beginning after 2:15 p.m. November 22, 1963. The first session ended at 4:05, when Oswald was taken to a lineup. While waiting for the lineup to begin at 4:20, he was searched for the first time, two and a half hours after his arrest. Then further questioning, broken by a second lineup at 6:20, which lasted 15 minutes and was followed by further interrogation, with arraignment on the charge of killing Officer J. D. Tippit at 7:10. Immediately he was taken to the third lineup and was returned to the homicide office at 7:40. After about an hour of further questioning, he was fingerprinted and a paraffin test (which the Commission believes is meaningless was made. Questioning continued and at 11:26 Captain Fritz signed a complaint charging Oswald with the assassination of the President. Shortly after midnight, there was Oswald's only "press conference." It was terminated the moment he began to talk. According to what is clear elsewhere, it was permitted for two reasons only: To butter the press for Chief Curry and to show that Oswald was not being beaten up.

Here the Report says that Oswald was placed in maximum security at 12:20 a.m. and later was formally arraigned for the murder of the President. Elsewhere in the supplementary volumes it is revealed that in the careful written record made of Oswald's movements, there is a 35-minute period during this interval that is not accounted f or.

Nothing apparently happened to Oswald before 10:25 a.m. Saturday, November 23, when he was again questioned, until a little after 1:00, with an hour in his cell during this period. He was allowed to be with his family for the first time (they had been denied permission to see him the day before) for about 20 minutes beginning about 1:10. At 1:40 "he attempted to call an attorney in New York" and he appeared in another lineup at 2:15. At 2:45 "with Oswald's consent," the police took fingernail scrapings and hair specimens. At 3:30 he had 10 minutes with his brother Robert. Between 4:00 and 4:30, he twice placed phone calls to Mrs. Ruth Paine. At 5:30 he spent 5 minutes with the president of the Dallas Bar Association. From 6:00 to 7:15 he was again interrogated, and at 8:00 he again called the Paine residence to speak to his wife "but Mrs. Paine told him that his wife was no longer there."

Presumably nothing else of note occurred until 9:30 a.m. Sunday, when he was again interrogated, until 11:15. He was murdered at 11:21. And in these few dry words the last two days of his life are telescoped. Dull, matter-of-fact, these words impart none of the feelings of this man, innocent or guilty, that first day, entirely alone, charged with a terrible crime, without a single free minute recorded until 20 minutes after midnight at the earliest. Or how he felt having no access to his family the first day and suddenly being told the night of the second by Mrs. Paine "his wife was no longer there."

With this arid recitation of statistics, the Report leads to "Interrogation Sessions" (R199), a one-page subsection that is composed of rhetoric and expressions of sympathy for overworked Captain Will Fritz and his troubles. This, despite the promise in Chapter IV (R180), "A full discussion of Oswald's detention and interrogation is presented in Chapter V of this Report." Of the vast amount that should have been learned from the kind of examination the Commission could and should have made of Oswald's interrogations, there is nothing at all here, except the opinion of some present that he remained calm and refused to answer some questions and the breakdown of the times of the interrogation sessions: 7 hours Friday, "only 3 hours" Saturday, and less than 2 hours Sunday. In a different context, these are fascinating statistics, for the reason given by the police for delaying the unnecessary transfer that led to his murder was that they had not completed the interrogation. Also interesting in a different context than that in which it is presented are these concluding words of this section, quoted from Chief Jesse Curry in extenuation of the problems of the police: "We were violating every principle of interrogation . . . it was just against all principles of good interrogation practice."

Right to Counsel of Choice

With this unintentionally appropriate introduction, the Report is up to "Oswald's Legal Rights" (R200). Here it says Oswald was not subject to physical hardship while in custody, although it would seem certain that, had he ever been tried, his lawyer would have found a different interpretation for the first-day schedule that left him not a moment for thought. Referring to Oswald's complaint to newsmen "demanding his 'civil rights,' " the Report alleges "Oswald did not complain to any of the numerous police officers . . . " But in making this demand that the Report deprecates with quotation marks, Oswald was protesting. This was his only "press conference" and he used it. In any event, the statement in the Report is false. Oswald complained to the police, the FBI and the Secret Service in private and in public at the lineups.

"Before the first questioning session Friday afternoon, Fritz warned Oswald that he was not compelled to make any statement and that statements he did make could be used against him," the Report informs us. Without doubt, Captain Fritz did exactly that. Only he neglected to so state in his own unsigned and undated statement appearing in the Appendix about 400 pages later (R599-611). And on each of the occasions he was arraigned, without doubt, as the Report declares, Oswald was advised of his rights to counsel and silence.

Nonetheless, the Report is constrained to admit that "Throughout the period of detention, however, Oswald was not represented by counsel. At the Friday midnight press conference . . . he made the following remarks: 'Well, I was questioned by Judge (Justice of the Peace) Johnston. However, I protested at that time that I was not allowed legal representation during that very short and sweet hearing I really don't know what the situation is about. Nobody has told me anything except that I am accused of, of murdering a policeman. I know nothing more than that and I do request someone to come forward to give me legal assistance.' 'Q. Did you kill the President?' 'A. No. I have not been charged with that. In fact nobody has said that to me yet. The first thing I heard about it was when the newspaper reporters in the hall asked me that question.' "

The Report washes its hands of "Oswald's Legal Rights" with the following excerpt, which

is fully one-third of the entire space given the subject:

"On Friday evening, representatives of the American Civil Liberties Union visited the police department to determine whether Oswald was being deprived of counsel. They were assured by police officials and Justice of the Peace Johnston that Oswald had been informed of his rights and was being allowed to seek a lawyer. On Saturday Oswald attempted several times to reach John Abt, a New York lawyer, by telephone, but with no success. In the afternoon, he called Ruth Paine and asked her to try to reach Abt for him, but she too failed. Later, in the afternoon, H. Louis Nichols, president of the Dallas Bar Association, visited Oswald in his cell and asked him whether he wanted the association to obtain a lawyer for him. Oswald declined the offer, stating a first preference for Abt and a second preference for a lawyer from the American Civil Liberties Union. As late as Sunday morning, according to Postal Inspector Harry D. Holmes, Oswald said that he preferred to get his own lawyer."

In short, the Report, which has avoided defining civil rights, said that Oswald had his because he was not abused physically, was told he could keep his mouth shut, and was permitted to seek a lawyer of his own choice. It may be true that Oswald was not physically abused, although the Commission received graphic contrary testimony from witnesses who had no reason to lie, such as the cashier of the Texas Theater and a patron. And without doubt, he was "fed and allowed to rest," even though the Report has persuasively demonstrated the first day would have to be considered an exception. But this and telling him he did not have to talk while at the same time keeping after him to talk, as happened repeatedly when he declined to talk, and telling him he could seek a lawyer from half the width of the country while not giving him time to get to a phone, do not exhaust the civil rights, with or without question marks, he should have been able to expect.

Note the extreme care with which the quoted paragraph above was drafted. "On Saturday Oswald attempted several times to reach John Abt." Why no mention of Friday? He made this demand immediately. The Report's own account of the treadmill on which the police kept their prisoner did not permit such an effort. The interrogation reports printed as Appendix XI (R598-636), contain no statement that Oswald was, in fact, allowed to or even told he could. All except one make it clear this offer was not made to Oswald until Saturday. The one exception is ambiguous. It is Captain Fritz, the man in charge, who wrote, "Oswald asked if he could have an attorney and I told him he could have any attorney he liked, and that the telephone would be available to him up in the jail and he could call anyone he wished, I believe it was during this (first) interview that he first expressed a desire to call Mr. Abt, an attorney in New York" (R602).

The first time Oswald was "up in the jail" was 12:20 a.m. Dallas time, 1:20 a.m. New York time, and then he was in "maximum security." In the few moments he had with the press, as soon as he started to talk he was withdrawn. Even though what he said was inaudible to most present, he had demanded a lawyer. And from the first he had asked for a Civil Liberties Union lawyer if Abt was unavailable.

If, as would seem from the Report's chronology, Oswald had no opportunity to seek his lawyer Friday, what about Saturday? John Abt testified April 17, 1964. He was questioned by General Counsel J. Lee Rankin. Abt and his wife had left New York Friday evening for a weekend in their cabin in the Connecticut woods. They were reached by the press Saturday and reported having heard nothing from Oswald or from anyone on his behalf. But Abt told the press that "if I were requested to represent him, I felt it would be probably difficult if not impossible for me to do so because of my commitments to other clients." Abt also said he never had any communication, directly or indirectly, from Oswald, of whom he had never previously heard (10H116).

There is no indication Oswald was ever informed of the unavailability of his first choice and every indication that he still did not know at the time of his death, for the interrogation reports are consistent in representing his continuing request for Abt. Referring to Saturday interrogations, Fritz's statement reads, "He (Oswald) said he didn't have money to pay for a phone call to Mr. Abt. I told him to call 'collect.'" With $170.00 at the Paines' and with almost $14.00 in cash on him at the time of his arrest, this seems odd (R606).

Secret Service Inspector Thomas J. Kelley, in his report of the Saturday morning interrogation, quoted Oswald as saying "if he could not get Abt then he would hope the Civil Liberties Union would give him an attorney to represent him." The next line of his report reads, "At that point Captain Fritz terminated the interview at about 11:30 a.m., 11/23/63" (R627).

The version of FBI Agent James W. Bookhout was "Captain Fritz advised Oswald that arrangements would be immediately made whereby he could call Attorney Abt." This indicates they had not been made the previous day. This is from Bookhout's report on the Saturday interrogations. It makes no reference to Oswald's second choice (R623).

Oswald's legal rights were, however, of concern to a number of people, including some in the Dallas area. Both the Civil Liberties Union and the Bar Association did something, in that order. Gregory Lee Olds, a weekly newspaper editor and president of the Dallas Civil Liberties Union, testified about this (7H322-5). By Friday night they began to feel a concern over Oswald's legal rights "having heard him directly quoted as saying he had not been given the opportunity to have counsel . . . " Olds called the police department "and finally talked to Captain Will Fritz . . . " Fritz said that Oswald "had been given the opportunity and declined." Questioned about the fact meaning, Olds told the Commission, "what I was told, that he had been given the opportunity and had not made any requests."

After consultation, Olds and the board members decided to "go down and see about it at the police department, in person, to get further assurances . . ." (7H323). Olds said it was not just a question of Oswald's being told he could have counsel. On arrival at the police station, Olds continued, they "conferred with Captain King" who he thought was "assistant to the chief of police . . . This was shortly after 11:35 or 11:40 . . . and we told Captain King what we were there for, and he said, he assured us that Oswald had not made any requests for counsel. Two of the others in the delegation then sought out Justice of the Peace Johnston before whom Oswald was arraigned, "and he also assured us . . . Oswald had declined counsel (7H323). The delegation "felt fairly well satisfied that Oswald had not been deprived of his rights" so they broke up (7H324). Olds has since "been sorry that we didn't talk with Oswald because it was not clear whether we would be permitted to see him that night or not" (7H325).

H. Louis Nichols, president of the Dallas Bar Association, had also been questioned about Oswald's rights "during a critical time after his arrest." He contacted the District Attorney who "advised me that so far as he knew, Oswald was not then represented by an attorney, nor had he made any demand or request that an attorney be appointed to represent him or made available to him." Nichols said a captain "who is an administrative assistant to the Chief of Police . . . advised me that as far as he knew, Oswald was not then represented by an attorney, and that he had made no request of the police that an attorney be made available to him or that he be permitted to call an attorney." This was Saturday afternoon. At about 5: 00 or 5:30, Nichols went to the jail and saw Oswald. Oswald said he wanted to be represented by Abt and, if he could not get him, by a lawyer from the Civil Liberties Union (20H685-6).

The language of the Report (R200-1) does not reflect the Commission's knowledge about Oswald's denial of counsel of his choice. His lawyer of preference was not available, he was known to be unavailable, Oswald was not so informed, and when his second preference, the Civil Liberties Union men, both inquired and appeared, they were lied to by Dallas public authority. "Cui bono?"

The Interrogations

The interrogations themselves involved a question of Oswald's rights. There was no transcript of any kind. The Commission accepted Captain Fritz's explanation that the small size of his office and the lack of a recording machine assigned to him precluded having a transcript (4H232). The Report raises no question of his ability to rent or borrow one, including from the federal police agencies in Dallas, privately or commercially. On the size of the Captains office which he gave at 133 square feet, there are several lines of unasked questions. If, in fact, it was too small, were there not other and undoubtedly better places in which the interrogations could have been held, especially in view of the chaos from virtually unrestricted access to the building? For example, the jail cell, where security and privacy were certainly unexcelled. But even in Fritz's own part of the building, the third floor, there were a number of larger and more private areas that should have been available. With a different purpose in mind, the Report prints Exhibit 2175 on page 197. This is the plan of the third, Fritz's, floor. There are at least five much larger offices, the assignment of which is not indicated. While we cannot assume that the Dallas police department can afford the luxury of so much unused premium space, we also cannot assume that the assassination of the President is a normal event. Because these are not the offices of the top officials, whose locations are indicated, was it not possible that, for such an important case, the space could have been available to the homicide bureau?

And if all else failed, why not use the "conference room," about twice the size of Fritz's office?

But Fritz's office, even if crowded, permitted both the use of a tape recorder, which would have provided no problem if anybody really wanted it, and even a stenographer. Sitting in on these interrogations with Fritz were up to two FBI and two Secret Service men at a time, a postal inspector and up to four detectives who, by their own statements, did not participate in the interrogations. Inspector H. D. Holmes also pointed this out in the first paragraph of his statement (R633), where he said the detectives were merely guarding Oswald and were not interrogating. Oswald was handcuffed and, by Captain Fritz's word, gave no trouble. Even if he did, the Captain's office had but one entrance. The police could not have been afraid of Oswald, for they did not search him until more than two hours after his arrest. Is it not then possible that one of the detectives could have been exchanged for a police stenographer?

Oswald had been told anything he said might be used against him in court. How? There was no stenographic transcript and no tape recording. The Report even asserts that Captain Fritz "kept no notes" (R180). This is not what Inspector Holmes recorded in quoting Oswald directly in a complaint about repetitious questioning: "You took notes, just read them for yourself if you want to refresh your memory" (R636). And even Captain Fritz said he had 'rough notes" (R611).

What, then, were the police going to use against Oswald in court? There remain only their reports and their recollections. These reports hardly reflect 12 hours of questioning, but it is worth examining what the various authors recorded on a few of the more important points that would have been at issue.

The important bag, in which Oswald was alleged to have taken the rifle into the Depository Building: Not a single reference.

Oswald's statement of where he usually worked: Fritz said "usually on the second floor" (R600) FBI Agent Bookhout said "first floor" (R619).

Where Oswald said he ate lunch: Fritz, "he said that he was having his lunch about that time (of the first shot) on the first floor" (R600); Fritz, ". . . he said he ate lunch with some of the colored boys who worked with him. One of them was called Junior' and the other was a little short man whose name he didn't know" (no reference to what floor) (R605); Bookhout and Hosty, without reference to companions, "On the first floor in the lunch room," where, certainly, Oswald knew it was not located (R613); Bookhout, "he took this coke down to the first floor and stood around and had his lunch in the employees' lunch room" (R619); Bookhout, "He had eaten lunch in the lunch room . . . 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 but whom he would be able to recognize" (R622); Kelley, "He said he ate lunch with the colored boys who worked with him . . ." (R626); and Holmes, "When asked as to his whereabouts at the time of the shooting, he stated that when lunch time came, and he didn't say which floor he was on, he said one of the Negro employees invited him to eat lunch with him and he stated 'You go on down and send the elevator back up and I will join you in a few minutes.' Before he could do whatever he was doing, he stated, the commotion surrounding the assassination took place and when he went downstairs . . ." (R636).

What Oswald did back at his rooming house: Fritz, "changed his trousers and got his pistol and went to the picture show" (R601); Fritz, "changed both his shirt and trousers" (R604); Bookhout and Hosty, no mention (R612-3); Bookhout, no mention (R619-20); Bookhout, "changed his shirt and trousers because they were dirty . . . reddish-brown, long-sleeved shirt with a button-down collar and gray colored trousers" (R622); Kelley, "changed his trousers and shirt, put his shirt in a drawer. This was a red shirt" (R626); Holmes, no mention (R633-6).

The row with Hosty: (This incident does, at least show Oswald was not without courage. He was all alone with not only the young army of homicide detectives led by the chief, but surrounded by hordes of police and both FBI and Secret Service agents. It occurred in the first interrogation. Hosty had been introduced because of FBI Dallas Bureau Chief Shanklin's urgent call to Fritz. Hosty was the "Oswald expert.").

Fritz, "became very upset and arrogant with Agent Hosty when he questioned him and accused him of accosting his wife two different times. When Agent Hosty attempted to talk to this man, he would hit his fist on the desk. (This is something none of the others refer to at all, and it would seem unusual for a handcuffed man to strike the desk each time with only a single fist.) I asked Oswald what he meant by accosting his wife when he was talking to Mr. Hosty. He said Mr. Hosty mistreated his wife two different times when he talked to her, practically accosting her" (R601).

Hosty and Bookhout, "Oswald at this time adopted a very violent attitude toward the FBI and both Agents and made many uncomplimentary remarks about the FBI" (R612); Bookhout, "felt his wife was intimidated" (R623); FBI Agent Manning C. Clements, no mention (R614-8); Bookhout alone, same date, no mention (R619-20); Kelley, "He said that in the past three weeks when the FBI talked to his wife they were abusive and impolite; that they had frightened his wife . . ." (R627).

With his first appearance, in the first interrogation, Hosty, the FBI's "Oswald expert," participating at the urgent intervention of Shanklin, also made his last. It is, perhaps, significant that quietly he was later disciplined and transferred, although there is no reason to believe this had any connection with his interrogations of Marina on November 1 and 5, 1963.

Bookhout was questioned by the Commission about what Oswald had said (7H308-18). Asked if Oswald said "anything specifically regarding the FBI?" Bookhout said merely "Yes." Asked what this was, Bookhout said, "He accused the FBI of, generally, unfair tactics in interviewing his wife on some previous occasions." But when questioning indicated the truth was known, Bookhout interrupted this question, "Was this directed specifically at either you or Hosty, or to the general -- "to admit "It was directed against Hosty" (7H310) .

Oswald's political beliefs: Fritz, "he had none" (R601); "I asked him if he belonged to the Communist Party, but he said he had never had a card (R605); "Marxist but not a Leninist-Marxist" (R605); Hosty and Bookhout, no mention (R612-3); Clements, no mention (R614-8); Bookhout, no mention in report on November 22, 1963, interrogation (R619-20), but on November 23 interrogation, "Oswald denied that he is a member of the Communist Party" (R622); Kelley, "he denied . . ." (R626); "I am a Marxist but not a Marxist-Leninist" (R629); Holmes, "he himself was a pure Marxist" while "a communist is a Lenin-Marxist" (R635).

On membership in the American Civil Liberties Union: Fritz, "he belonged . . . and paid $5.00 dues" (R605-6). None of the others refer to this except Holmes, who said "he had made some effort to join but it was never made clear whether he had or had not been accepted" (R634).

His purchase of the pistol: Fritz, "he had bought it several months before in Ft. Worth, Texas" (R606); Bookhout, "He declined to state where he had purchased it" (R623), vs. Bookhout, ". . . has never ordered any guns (as distinguished from rifles)" (R622). The others made no appropriate references.

His attitude toward President Kennedy: Fritz, "he didn't have any views" (R607); Kelley, "I am not a malcontent; nothing irritated me about the President" (R627).

How he registered at the rooming house under the name of O. H. Lee: Fritz, "I asked him why he did this. He said the landlady did it. She didn't understand his name correctly" (R602); Hosty and Bookhout, "He further admitted that he was living at 1026 N. Beckley, Dallas, Texas, under the name of O. H. Lee" (R612).

The Report does indicate that a similar inaccurate registration of Oswald in Mexico was likely from such a confusion of all given names (R730, 733).

Captain Fritz's report bears no reference to the questioning of Oswald about the shooting of the President. Oswald himself had told the newsmen, "Nobody has told me anything except that I am accused of murdering a policeman. I know nothing more than that . . ." (R200-1 ). Hosty and Bookhout reported, "Oswald frantically denied shooting Dallas police officer Tippit or shooting President John F. Kennedy" (R613). Bookhout alone additionally reported Oswald's denial of shooting the President in his report covering Saturday's interrogation (R624).

There are reasons for believing that Oswald did not talk to the police completely voluntarily. From the police reports he appears to have talked without inhibition about himself and consistently to have refused to talk about anything that might have tended to connect him with crimes, although he is also quoted as having been provoked into touching on this aspect. This might have assumed significant meaning in a court of law, especially when considered with the complete lack of any kind of transcription of what actually was asked and said and even more in the light of the real story about his lack of counsel.

The first such occasion is in Captain Fritz's report. It deals with Oswald's claim that the one of the two photographs the police said they found in the Paine garage, showing Oswald with a rifle, pistol and some literature, was a fake. He told Fritz that "in time, he would be able to show that it was not his picture . . . At this time he said that he did not want to answer any more questions . . . (R609).

FBI Agent Manning C. Clements, on November 22, 1963, described the representation he made to Oswald as "to furnish descriptive and biographical data." He got four typewritten pages of it. But by his own report, Clements switched to other questions, pursuant to which Oswald "stated he thought perhaps interview to obtain descriptive information was too prolonged, that he had declined to be interviewed by any other officers previously and did not desire to be interviewed by this agent (R614).

Bookhout referred to Oswald's refusal to take a polygraph test, saying "Oswald stated that he would not agree to take a polygraph examination without the advice of counsel" (R622) .

The version of the picture incident by Bookhout is this, "Oswald stated he would not discuss this photograph without advice of an attorney" (R625).

Oswald "had no intention of answering any questions concerning any shooting . . . he would not answer any questions until he had been given counsel," according to Inspector Kelley's first report (R627).

What were the police going to use against Oswald? Certainly not these statements. And what a field day defense counsel would have had confronting prosecution witnesses with these statements. These are witnesses the Commission believed. But it called Oswald a liar at least six times (R20, 118, 130, 180, 182, 185) based on these statements. If Oswald was a liar, what of these witnesses? One of the eight classifications "evaluated" in determining Oswald's guilt was "(6) the lies told to the police" (R118). Of his statements during these interrogations, "While Oswald's untrue statements during interrogation were not considered items of positive value by the Commission, they had probative value in deciding the weight to be given his denials . . . (Because) independent evidence revealed that Oswald repeatedly and blatantly lied to the police, the Commission gave little weight to his denials of guilt" (R180).

As an example of one of the Oswald "lies," it is worth noting that his account of what he did during lunch hour, if one version by FBI Agent Bookhout is believed, is supported by the testimony of the Negro employees. Bookhout and Hosty placed this "on the first floor" (R613), and Bookhout alone said Oswald "recalled possibly two Negro employees walking through the room during this period. He stated possibly one of these employees was called 'Junior' . . ." (R622). "Junior" Jarman so testified. And had Oswald been anywhere but on the first floor, he would have had no way of knowing this.

There are other contradictions between the written statements of the participants, and conflicts between their written statements and testimonies. There is also a provocative fact included on which all versions are in accord but of which the text of the Report says nothing. This had to do with Oswald's assertion he had seen another rifle in the building and that Truly and other employees had examined it (R601, 612). Other testimony showed this incident actually did happen. Warren Caster had purchased two rifles, a .22 for his son and what is described as "a 30.06 sporterized Mauser" for himself. This was a few days before the assassination. His rifle was at home the day of the assassination, according to Caster (7H386). What is surprising is that the Report completely ignores this incident in its text, especially because the Caster rifle is of the same make that so many, if not all, of the first reports of the found rifle said it was. Mention of this additional rifle escaped notice in the press until after the reaction of the FBI to the mild criticism the Report addressed to it. This was one of the few provocative things that had never been leaked to the press. The Washington Evening Star, which enjoys excellent relations with the FBI, had an unattributed box inserted in the statement of J. Edgar Hoover referring to these two additional Texas School Book Depository rifles.

Some of the participants refer to things others never mention. Inspector Kelley said he and Secret Service agents were present "as observers" (R626), although he and others elsewhere refer to his participation in the interrogation (R607, 627, 630).

Oswald's last moments before he was taken on the "abortive transfer" that led to his murder are thus described by Inspector Holmes alone, ". . . Chief of Police Curry came into the room and discussed something in an inaudible undertone with Captain Fritz, apparently for the purpose of not letting Oswald hear what was being said. I have no idea what this conversation was...."

Almost but not quite entirely suppressed is this incident, mentioned in the interrogation reports by Kelley alone, ". . . he asked me whether I was an FBI agent and I said that I was not that I was a member of the Secret Service. He said when he was standing in front of the Textbook Building and about to leave it, a young crew-cut man rushed up to him and said he was from the Secret Service, showed a book of identification, and asked him where the phone was. Oswald said he pointed toward the pay phone in the building and that he saw the man actually go to the phone before he left." (R629)

Newsmen talk of an incident reminiscent of this behavior in which an unnamed FBI man went charging into Parkland Hospital intent upon his duty and without identifying himself. He is said to have been knocked cold by a Secret Service agent, following which he is supposed to have shown his credentials.

There are also a few vague references in the appended 26 volumes to a similar incident at the hospital. Secret Service Agent Andrew E. Berger reported on November 30, 1963, "I assumed a post in the entrance of the emergency room . . . with SA Johnsen . . . Shortly thereafter FBI Agent Vincent E. Drain, commission book #5067, Dallas office arrived at the room entrance. He showed me his credentials and said he had received a telephone call from Director Hoover telling him to make himself available to us. This information was conveyed to ASAIC Kellerman. When I inquired of Agent Drain who the unidentified male was who accompanied him, he replied that he was a doctor friend of his. The agent and unidentified male then proceeded to the end of the hall. Approximately 5 minutes subsequent to the visit of Agent Drain a unidentified CIA Agent, after showing his credentials said that he would be available. At approximately 1:30 p.m., the Chief Supervising Nurse, a Mrs. Nelson started to enter the emergency room with an unidentified male (WM, 45 yrs, 6'2" 185-190 lbs, grey hair). As the reporting agent and SA Johnsen started to ask his identity he shouted he was FBI. Just as we began to ask for his credentials he abruptly attempted to enter the emergency room and had to be forcibly restrained by us. ASAIC Kellerman then appeared and asked this individual to go to the end of the hall." (18H795)

In a companion statement of the same date, SA Richard E. Johnsen placed himself with Berger ". . . when Chief Nurse Nelson entered the President's room. She was followed by an unidentified man (WM, 40-45 yrs, 6'2", 185 lbs, grey hair). When SA Berger and I stopped him he said, 'F.B.I.,' and made a determined effort to enter the President's room. We stopped him and asked for his credentials. He again tried to forcibly enter the President's room and had to be restrained. After he had been subdued he produced his F.B.I. credentials. At this time ASAIC Kellerman appeared and asked the F.B.I. agent to go to the end of the hall. Congressman Olin E. Teague (D-Texas) witnessed this incident. SA Berger was assured by the Congressman that the F.B.I. man had not attempted to produce any identification and appeared to be determined to enter the President's room. He stated that if there were any inquiries that he would be more than glad to give a statement in our Service's behalf. Nurse Nelson was interviewed by SA Berger in my presence. She stated that the F.B.I. agent had showed her no identification" (18H798-9).

None of this appears in the Report. No one of these people was called as a witness, except Nurse Nelson. None, including the nurse, is even mentioned in the Report. When Mrs. Nelson appeared as a witness, she was not asked about this incident (6H143-7). And what was an agent of the CIA, which has no internal functions, doing there at all, and especially so fast?

There is another item by Inspector Kelley alone. It is exceedingly important. It was completely ignored when the Commission called him on June 4, 1964. His testimony was carefully restricted. He was asked nothing about the interrogations, and especially was this reflection of his mind avoided. He was asked about the White House automobiles and about reconstructions of the crime. In this testimony Kelley declared that from the area of the Triple-Overpass the President was never at any time obstructed by the windshield from a potential assassin in that area, but that, based on what he had been told of the President's non-fatal wound, with what the Report calls the "neck" injury as high as it was, the overpass could not have been the source of that shot. He was using Exhibit 386, the "artist's conception," as identification of the location of the wounds (5H129-34, 175-6).

In the ignored statement, Inspector Kelley shows that the lack of counsel to advise Oswald effectively closed his mouth. Oswald had made clear he would not talk about the crimes, if about anything, depending upon which police version is believed, until he had counsel. No counsel, no talk. It was that simple. And once he had counsel, then he would be guided by his counsel's

advice, and either Oswald or the lawyer would talk to the Secret Service:

"I approached Oswald then and, out of the hearing of the others except, perhaps one of Captain Fritz's men, said that, as a Secret Service agent, we are anxious to talk with him as soon as he had secured counsel; that we were responsible for the safety of the President; that the Dallas police had charged him with the assassination of the President but that he had denied it; we were therefore very anxious to talk with him to make certain that the correct story was developing as it related to the assassination. He said that he would be glad to discuss this proposition with his attorney and that after he talked to one, we could either discuss it with him or discuss it with his attorney, if the attorney thought it was the wise thing to do, but that at the present time he had nothing more to say to me." (R630)

This was the last event in Oswald's life before he left on the "abortive transfer" and death. Perhaps it is symbolic of the crowded, chaotic events of those two horrible days. But imagine the scene and the significance of Inspector Kelley's drawing Oswald aside. Here we have room so small that Captain Fritz said its size alone prevented both the keeping of any kind of transcription of the questions and answers and the proper conduct of the interrogations. But Inspector Kelley had something of confidential nature he did not want either the police or the FBI to hear. He drew Oswald out of the hearing of the others to have a whispered private conference with the accused man!

And immediately Oswald was murdered!

The Lineups

Oswald clearly believed that the police were framing him. He said so, to their faces. Contrary to the assertion of the Report that he "did not complain about his treatment to any of the numerous police officers and other persons who had much to do with him during the two days of his detention" (R200), he did complain, both publicly and privately. He protested as much as could be expected of a man in his parlous environment, perhaps more than most would have had the courage to do. He was completely isolated, in the hands of a large police force which he had already accused of framing him. He had no lawyer and had no success in reaching the one of his choice. Yet he cried bloody murder about the rigged nature of the line-ups which made his selection almost completely automatic. Only one of those looking at him had failed to make "identification," whether or not he knew it. This, was Brennan, of whose participation in the lineups the police, by odd coincidence, had no written record, and who was earlier discussed in this book.

Captain Fritz's "rough notes and memory" apparently did not include this, for it is missing from the twelve pages of his report. But Bookhout did include one sentence in one of his reports, reading "Oswald complained of a lineup wherein he had not been granted a request to put on a jacket similar to those worn by some of the other individuals in the lineup" (R625). He said essentially the same thing in his testimony, but eliminating the word "some" (11H310) .

Because the Report makes only passing reference to the lineups and represents the opposite of what Oswald did or tried to do about them, it would seem that the Commission decided that either Oswald was not being framed or that protection against frame-ups is not a legal right.

The methods of the police were simple and straightforward. Oswald was always in the No. 2 spot in the lineup. He was the only one in any lineup that was both bruised and cut on the face. His face was also slightly swollen. He was the only one whose clothing was described as "dirty," having been through the scuffle at the theater and having also lived in them from the time of his apprehension. In addition, besides the matter of the jacket, which Bookhout mentioned, he was also dressed differently. All the others in the first series of lineups were police employees, neatly dressed and not in sports clothing. Almost without exception, the witnesses in subsequent testimony referred to Oswald as "Number 2." Most of them admit to having seen his picture in the papers or on TV or both prior to being taken to the lineup. Some of the few denials are suspect.

Apparently in response to Oswald's complaints, the police changed the others in the lineup, with as distinctive a touch as it employed in utilizing its own differently and neatly dressed employees. They used teenagers (2H260-1; 6H461). Even then, the identifications were far from conclusive, for some of those identifying Oswald did not even recall with accuracy the number of men in the lineups. One of the most important witnesses gave three different versions: four, five and six (2H253-62; 6H428-34).

In identifying Oswald at the scene of the Tippit killing, the Commission drew upon the same witnesses utilized by the police. By far the most important of these was Mrs. Helen Markham, who will be discussed separately. Of her and her condition at the time she identified Oswald for the police, Captain Fritz said his men "were about to send her to the hospital or something" and they had to give her ammonia to revive her, hence his anxiety to get that lineup under way (4H212). Charlie Virginia Davis, as she is called by the Commission, although her name was not "Charlie," is used to describe how Oswald emptied his pistol for the second time as he passed her home and carefully left the empty shells for her to find. She said of the four men in the lineup, "and these five boys, or men, walked up on platform, and he was Number 2." When asked "Who was Number 2?" her immediate reply was, "The boy that shot Tippit." She had not seen the shooting, for she had been lying in bed in her living room. Although she said she was certain of her identification of Oswald in the line-up, when she saw him on television, she said, "I wouldn't say for sure." But of the man in the lineup, "I would say that was him for sure" (6H463). Mrs. Barbara Jeanette Davis, her sister or sister-in-law, on which the record is unclear and she may actually be both, was asked if the "Number 2" she picked out in the lineup was wearing the same clothing he had worn at the time she saw him leaving the scene of the Tippit killing, and said "all except he didn't have a black coat on when I saw him in the lineup." She was the only person to say the Tippit killer was wearing a coat and the only person to say his garment was black (3H346-7). But she had told Patrolman Poe at the scene of the killing that the killer had been wearing "a white jacket" (R175).

Another lineup witness at the scene of the Tippit killing was William Scoggins, a cabdriver. He was taken to a lineup the day following the killing, "along about dinner time," actually after 2 p.m. Asked about the identification at the lineup, he said, "I identified the one we are talking about, Oswald. I identified him." Assistant Counsel David W. Belin said, "You didn't know his name as Oswald at that time, did you, or did you not?" Scoggins replied, "Yes, the next day I did. But of course I didn't know what his name was the day that I picked him out." Having asked us to believe that in the 24 hours he had not seen a newspaper or television, although the Commission was careful not to ask him if he had on Friday night, Scoggins nonetheless admitted. "I think I saw one (picture) in the morning papers," before the lineup (3H334).

There were only two witnesses to the Tippit killing. The second was the only one that was close to it, perhaps as close as 15 feet and not over 25 feet. He is the only one to give a meaningful description, with distinguishing characteristics. Domingo Benavides was in his garage truck on the opposite side of the street (6H444-54). He described a man so much like Belin that the counsel felt constrained to say, "I might say for the record, that I was not in Dallas on November 22, 1963," and at another point, "I was flying from St. Louis to Des Moines, Iowa, at about this time." There was as little humor in what happened to Benavides as there was in the events to which he testified. He was a more-than-willing witness, anxious to help, but some of his distinguishing characteristics, such as the complexion and "curly" hair, ruled Oswald out. He was not taken to the lineup. The Report's explanation is "he did not think he could identify the man who fired the shots. As a result, they did not take him to the police station" (R166). The truth is that Benavides was under the impression that he had to guarantee in advance that he could or would make positive identification. As he said, "I wasn't going to say I could identify and go down and couldn't have" (6H452). In addition, who ever heard of the police exercising such delicacy about the wishes of witnesses? There was no questioning in the hearing about the significance of the above quotation. The Report imputes no error to the police.

Of utmost importance to the Commission once it determined it had to prove all of Oswald's movements following the assassination (actually, it proved almost none) was William Wayne Whaley, the cabdriver. He was regarded as of sufficient importance to be one of the relatively few selected to appear before the Commission itself (2H253-62; 292-4). His appearance was a disaster to the case against Oswald of a magnitude exceeded by few things except his subsequent deposition (6H428-34).

After seeing Oswald's photograph in the papers, Whaley told his superior in the cab company this man had been a passenger the day before. This appears to have been the means by which the police became interested in him. Although Whaley himself had said he saw Oswald's picture in the papers, in his appearance before the Commission, Assistant Counsel Joseph A. Ball asked, "Before they brought you down, did they show you a picture?" If this question had any purpose, it could not have been to establish that Whaley had not seen a picture prior to his lineup identification of Oswald, for that was already a matter of record. It could have served only to supply a quotation that might indicate the absence of police chicanery in that the police did not show him a photograph. Of course, the police did not have to; he had already seen one (2H260).

At the lineup, the police "brought in six men, young teenagers . . . At that time he had on a pair of black pants and a white T-shirt, that's all he had on. But you could have picked him out without identifying him by just listening to him because he was bawling out the policemen, telling them it wasn't right to put him in line with these teenagers and all that and they asked me which one and I told them" (2H261). Further on what Oswald said, "He showed no respect for the policemen, he told them what he thought of them. They knew what they were doing and they were trying to railroad him and he wanted his lawyer." At this point Assistant Counsel Ball asked only, "Did that aid you in the identification of the man?" Whaley, of course, was not helped a bit, but someone else? "Anybody who wasn't sure could have picked out the right one just for that" (2H261).

The subsequent effort of Counsel Ball to clarify this testimony was little credit to the police and district attorney and less help to the Commission. "Now, in this police line-up, now," Ball began, "and this man was talking to the police and telling them he wanted a lawyer, and that they were trying to, you say he said they were trying to, frame him or something of that sort --" He was interrupted by Whaley who explained, "Well, the way he talked the they were doing him an injustice by putting him out there dressed different than those others.." Ball then wanted to know, "Now, did any one, any policeman who was there, say anything to him?" "Yes, sir;" Whaley replied, "Detective Sergeant Leavelle, I believe it was, told him that they had, they would get him his lawyers on the phone, that they didn't think they were doing him wrong by putting him out there dressed up" (2H294).

It is clear that Abt was available by phone to those who sought him, but was not in his office, as he testified. He was easily reached by both friends and the press. The Commission apparently did not consider this in its meditations about Oswald, the police and his lack of a lawyer. Whaley's testimony put but the unkept promise into the record. So the Commission did know.

Whaley was not finished yet. He managed to let it slip out that Oswald "was the only one that had the bruise on the head." And he also identified Oswald as having been in the No. 2 position. But in an affidavit he executed the day of the lineup he swore, "The No. 3 man, who I now know as Lee Harvey Oswald, was the man who I carried . . ." This discrepancy led to a later deposition taking. The testimony quoted above was given to the Commission itself, not the staff without members of the Commission present, as most of the statements were given. Here Oswald's, and presumably his family's, interests were being looked out for by Walter Craig, former head of the American Bar Association. On March 12, 1964, Craig was not present. Asked if he had a statement to make following Whaley's testimony, Craig's representative, Lewis F. Powell, said, ". . . In a conversation with Mr. Rankin (Commission General Counsel) yesterday morning we agreed that rather than my asking questions directly of witnesses, I would make suggestions . . . and I have been following that practice . . ." (2H294).

The real Whaley whammy was reserved for April 8, when Assistant Counsel David W. Belin took a deposition from him in Dallas (6H422-34). There remained the conflict between Whaley's sworn statements in the identification of Oswald.

In a futile, almost ridiculous, attempt to reconcile the conflicts in his identification at the lineup, and ignoring the fact that all positions were identified by an official number, which he saw, over the heads of the four different men in the lineup, Whaley said that, counting from right to left rather than left to right, Oswald was the third man. After attributing the "error" of two blocks in the location at which Oswald disembarked from his cab to the presence of reporters in the building (with no identification that they were anywhere near him when he executed the affidavit), Whaley administered the coup de grace to the lineups:

"I signed that statement before they carried me down to see the lineup. I signed that statement, and they carried me down to the lineup at 2:30 in the afternoon." The transcript cannot give the tone of voice in which Belin asked him questions, but the reader should have no trouble imagining it. "You signed this affidavit before you saw the lineup?" he asked. Whaley's reply was, ". . . you are getting me confused."

There then was a brief exchange of questions and answers in which Whaley volunteered that "Bill Alexander from the district attorney's office was there also" and then manfully started all over again, detailing how the police wrote out what they wanted him to sign, but in this version he said the number of the man he was going to identify was left blank pending the lineup (6H430). With still another version in part of which Whaley said, "I made this statement more to Bill Alexander," intervening, Belin asked, "Now when you signed it -- what I want to know is, before you went down, had they already put on there a statement that the man you saw was the Number 3 man in the lineup?"

"I don't remember. I don't remember whether it said three or two or what," Whaley responded.

"Did they have any statements on there before you went down to the lineup?" Belin wanted to know.

"I never saw what they had in there," Whaley told him. "It was all written out by hand. The statement that I saw I think was this one, and that could be writing. I might not even seen this one yet. I signed my name because they said that is what I said" (6H431).

With a little encouragement, Whaley offered still a different version, in which he signed a blank paper, as his confused words seemed to say, "because they had to get, a stenographer typed it up." Soon he got back to saying he signed the affidavit after it was typed. But when asked by Belin, ". . . had they already put on there a statement that the man you saw was the No. 3 man in the lineup?" Whaley again said, "I don't remember that. I don't remember whether it said two or three or what . . . I never saw what they had in there . . . I signed my name because they said that is what I said" (6H431).

When Belin again made an effort to undo the "two-three" punch Whaley had thrown at everyone involved, Whaley uttered a magnificent and appropriate understatement: "I don't want to get you mixed up and get your whole investigation mixed up through my ignorance, but a good defense attorney could take me apart . . ." (6H432).

Oswald's Representation Before the Commission

Mark Lane is a lawyer and former New York public official. He was engaged by Mrs. Marguerite Oswald, the dead man's mother, "to represent the interests of her son" (2H59). Shortly after the Commission was organized, he presented it with a brief in Oswald's behalf. By the time of his appearance before the Commission on March 4, 1964, he had been informed by the Commission that it had rejected his request to be permitted to represent Oswald. The reason given by the Chairman was that "Lee Oswald left a widow. She is his legal representative. She is represented by counsel . . ." (2H57).

Charles Rhyne, another former head of the Bar Association and an assistant to Craig, asked one of the exceedingly few questions ever asked by any of these gentlemen: Did Lane want the Commission to "make an inquiry into whether his civil rights were violated . . ." (2H59). Lane replied affirmatively. Rhyne told Lane he was repeating what came from other sources, such as newspapers, in reply to which Lane alleged two other evidences: The death of the accused and the fact "that it would be impossible . . . to secure 12 jurors probably anywhere in this country" who had not already concluded that Oswald was guilty.

There were few interjections by those lawyers recognized by the Commission as representing Oswald's interests. Mostly these few have been intended to help the Commission. An example was the interjection by Charles Murray (4H19), relating to an Oswald fingerprint only, despite police handling, on the bag in which the Commission alleged the rifle had been taken into the building. Murray suggested, "Since the print on the bag may become obliterated and since Members of the Commission have already seen it, it might be advisable to put on the record that they have seen it, because in time to come it may not be visible to anybody."

Already quoted is the agreement not to ask questions by Lewis F. Powell, one of these counsel. If at any point a single question was directed to any of the many questionable witnesses, such as Whaley and Markham, that met the purposes served by the adversary system of our kind of justice, I have not seen it. Nor have I seen any record of their participation in the taking of depositions, the source of by far the most of the testimony.

Were the Searches Legal?

Soon after Oswald's apprehension, his room at 1026 North Beckley Street was searched by the police. They obtained a search warrant, signed by Justice of the Peace Johnston, the same official before whom Oswald had been arraigned. It later turned out that J. P. Johnston, locally known as "Judge," participated in the search. This is revealed in the police radio logs, Exhibits 705 and 1974, which would seem to indicate that he is an adjunct of the police department. He responds by radio on their frequencies. This is not a suggestion that there is anything wrong or illegal under Texas law in the authority signing the search warrants being at the search. But it does seem a bit unusual.

That search was so comprehensive that a check-back on the room by four detectives the next day turned up one item: A single paper clip (7H177).

There is none of this clarity about the search of Oswald's residence (R617) in Irving; Oswald's property and possessions were in the home of Ruth Paine, where his family resided, and the FBI considered it his residence, as most people would.

At shortly after 1:20 p.m., November 22, 1963, Captain Will Fritz was given Oswald's home address with the report that he was missing from work (4H237). Captain Fritz apparently saw no urgency in doing anything about it, for he did not use the available telephones or any of the many police radios to issue instructions, nor did he order any of the many police on the spot with him to do anything about it. Instead, he remained at the Depository for a while and left for his office with Detectives R. H. Sims and E. L. Boyd, stopping en route to visit Sheriff Bill Decker for about 15 minutes (R599). He arrived at his office about 2:15 p.m., where Oswald was in the custody of two detectives and Sergeant Gerald L. Hill. Fritz told the detectives to get a search warrant and go to the Paine residence and pick Oswald up (R179-80). With typical vagueness, in his report Fritz said only that he "instructed" unnamed "officers to make thorough searches of these places" (R603 ).

Oswald was already in custody. The police, however, went to the Paine home to search it. Detectives Richard S. Stovall, a plainclothesman, G. F. Rose and J. P. Adamcik, those ordered, had a problem. Stovall (7H186-95) explained it to the Commission: "Well Irving is out of our jurisdiction, actually, we had to either have the Irving police or the county officers with us" (7H188-9). Deciding on the sheriffs men, the trio had to wait 40 minutes (21H599) for the deputies, who did not know the purpose of the mission until told at the scene. How the police could get a search warrant, as ordered by the chief of homicide, to perform police functions where they had no jurisdiction is not indicated. Nobody had a search warrant. In the Report there is no reference to any consideration of its need or desirability. They had only to pick up the phone and ask to get one (21H603). They did not.

Stovall told Mrs. Paine they wanted to search the house but "did not have a search warrant but if she wanted us to get one we would, and she said, 'That won't be necessary' -- for us to come right in, so we went into the house and started to search out the house, and the part of the house that I searched was the front bedroom where Marina Oswald was staying" (7H188).

To laymen this would seem to raise the question, could anyone else, including his wife, waive Oswald's legal rights? Obviously, Ruth Paine had no interest or need to insist upon a search warrant, especially upon the assurance of the police that it would be granted automatically. Under the circumstances, she certainly would not want to be put in the position where she might be accused of interfering with the investigation of the assassination of the President. Stovall also makes it clear that he and not the deputies conducted the search, saying, "I don't believe there was anybody went with me . . ." Stovall also heard Mrs. Paine suggest they look into the garage, saying it was Marina's idea, "so they looked and they were out of my sight then." Here he again refers not to deputies but only to Detective Rose.

The list of what was taken in the search was not made until the next day, when another search was made, in the presence of FBI agents. The time of the search was then placed at 3:30 to 4:00 p.m., November 22, 1963 (7H189).

There was off-the-record discussion, which the transcript subsequently indicated was about Stovall Exhibits A-1 and A-2 (21H596-7), the inventories of what was taken both days, the 22nd and the 23rd. The concluding sentence of Exhibit A is "The above property was recovered from 2515 W. 5th, Irving, by Detectives G. F. Rose, R. S. Stovall and J. P. Adamcik. All the property has been initialed and marked for evidence by Stovall and Rose." Here again is what would appear to be proof that the search was by the police who had no jurisdiction, not the sheriffs (7H190).

The search seems to have made no distinction between Paine and Oswald property. They even took Ruth Paine's phonograph records, books and picture slides, knowing they were hers (7H190). They had to use both cars to hold what they took (7H191). The list includes a considerable amount of photographic materials, cameras, projectors, films, slides, unexposed film, etc. Among the relatively undescribed items is "small German camera and black case on chain and film," which suggests a Minox. It also lists a "Russian 35-mm. camera and brown case." Neither is the camera which Oswald allegedly set for Marina to take his picture with the rifle and pistol. That is Exhibit 751, described as "Imperial Reflex camera" (R594). There is an additional camera on this inventory, a "Sterio Realist," but there is no "Imperial Reflex." There is no questioning about this important discrepancy nor any reference to the answer, if any, elsewhere. There is no identification of any film by size except 35-mm.

Acknowledging that the photographic materials came from both the Oswald and Paine bedrooms, Stovall testified, "I'm not sure which came from which place" (7H190). After two to two and a half hours of searching, the detectives returned to Dallas with the complete Paine and Oswald families (7H191).

Before returning to the Paine residence the next day, the same trio obtained a search warrant and were accompanied by Detectives Moor and McCabe of the Irving police. This time they concentrated on the garage, with the Paines pointing out the Oswald property. The Paines drove off and left the detectives alone in their unsecured home, raising the question of the security of the garage in which the rifle was allegedly stored on earlier occasions (7H193).

There is an intriguing entry on the property list, "Stovall Exhibit B" (21H598). It reads, "1 notice of attempt to deliver mail, card dated November 20, 1963, to Mr. Lee Oswald, 2515 west 5th St., Irving Texas -- a parcel to be picked up." There is no reference to this parcel in the Report. The Commission allows it to remain a highly suggestive mystery.

The famous pictures of Oswald and the weapons were found by Rose. There is no separate listing of them in the inventory. They are, according to Stovall, included in the entry "miscellaneous photographs and maps" on "Exhibit B," the inventory of the 23rd. Under questioning Stovall described these photographs and declared they took both the prints and the negatives -- plural (7H194).

But the Report is inconsistent with this testimony. It says only one negative "was found among Oswald's possessions" (R127). In the footnote of reference, we are directed to the quoted testimony of Stovall that there were two negatives, and to the testimony of Rose (7H231) where Rose described the photographs and swore, "I found two negatives." The footnote also refers to "CE 2011, p. 26." This exhibit appears in photocopy in Volume 24. The pagination on the originals is invisible or indistinct in most cases, and on what seems to be page 26 it is invisible. Examination of that and the adjacent pages reveals no reference to these described photographs or negatives. The balance of the footnote reads, "The recovered negative was the picture introduced as GE 133-B" (R823). The evidence is to the contrary. Two negatives were taken by the police, legally or illegally. The footnote is further deficient in not referring to Stovall "Exhibit D" (21H603), a further statement of the search saying Rose found "two snapshots and negative showing Oswald holding the rifle (murder weapon) and wearing a pistol in a holster on his right hip (Tippit weapon) . . . " The propaganda is in the original; but so is the identification of two negatives.

Photographs retouched and distorted in various ways but ultimately traced to the print of which the negative was missing began to appear throughout the country shortly after the search. One version was on the cover of LIFE Magazine. The Commission and the Report discuss the alterations made in this photograph without pointing out that the changes made the photograph conform more to the information then emanating from Dallas. When the story of the adding of the telescopic sight at the Irving Sport Shop was current, the telescopic sight was airbrushed off this picture!

But the record is clear. The photographs and two negatives were taken by the police. The Report says only one, which is inconsistent with the sworn testimony. And the Report neither raises a question about the missing negative nor in any way explains what happened to it.

It is by no means certain that these prints and negatives were, in fact, taken on the 23rd. There is no way of telling from the inventories. While there are such separate listings as "9 pictures of Russia," "2 cards with picture of stork for Oswald baby," "1 picture of Oswald and wife," there is no separate listing for these pictures Rose regarded as so important he called Stovall over to see them. About the search of the 23rd, Stovall testified (7Hl93) they got to the Paine residence "about 1:30 or 2 o'clock." They were in the garage alone "about l ½ or 2 hours. We might have been there longer" (7H193).

The police reports of the interrogations contain only one additional reference to the searches, and it refers only to that of the 23rd. From reading Inspector Kelley's statements and all the other reports, one would never know of the search of the 22nd. The Inspector said the "6:00 p.m." interrogation was conducted "for the purpose of displaying to him the blowups of photographs showing him holding a rifle and a pistol which were seized as a result of the search warrant . . ." (R628).

It is, of course, possible these prints and negatives were not seized until the 23rd. There is no indication that these photographs were kept separate. All indications are the other way. From Stovall's testimony, it might well have been after 4 p.m. when he and his companions left the Paines'. In two hours or less, then, they traveled about 15 miles back from Irving, unloaded their haul, discussed the operation with the proper superiors, located the negatives and got them enlarged, dried and let the homicide people know in time for arrangements to be made for a 6 p.m. interrogation session. And during the same two hours or less, something happened to that all-important other negative? It may have been possible, but it does not seem probable.

Unlike the Report, I do not believe that Oswald enjoyed his civil or legal rights, either as a matter of law or as a practical consideration. The cited record is clear. From the moment of his apprehension, members of the Bar and the general public expressed doubts about even the possibility of his ever being brought to trial because the activities of public authority may have precluded any chance of impaneling a jury. This position was publicly taken by many prominent legal experts. It was emphasized by the national office of the American Civil Liberties Union, whose local inquiry into Oswald's legal rights was diverted by the police. Even the Report grudgingly and inconspicuously concedes this but manages to avoid any real exposition of it under "Oswald's Civil Rights." While seeking to mitigate the sins of "various local law enforcement officials during this period of confusion and disorder in the police station," it concedes that "the numerous statements" which it euphemistically describes as "sometimes erroneous" nonetheless "would have presented serious obstacles to the obtaining of a fair trial for Oswald." One four-line sentence (R20).

It is not alone the accused who suffers from the denial of these basic American rights. We all lose something. As it was aptly phrased by the Chairman, speaking as Chief Justice in a celebration of the Philippine Constitution in Manila on February 8, 1965 (UPI), ". . . the rights of all . . . the rights of the most powerful are jeopardized when the rights of the weakest are violated . . . Implicit in a democratic system is the realization that one charged with even the most serious crime must under the Constitution be tried by civilized standards of criminal justice." The news agency account continued, "impatience with courts is great when a crime is particularly odious and a defendant's guilt appears obvious . . . when a defendant is granted a new trial it is important to 'evaluate what has occurred in the larger perspective of the Constitution.' In such cases, he said, the accused may not have been accorded the right to counsel, or a confession may have been extorted from him, or he may have been convicted on illegally seized evidence. Constitutional bars to these practices 'can never be compromised by shortcuts,' Warren said."

The real question is the one posed at the beginning of this chapter. In context, "Cui bono?" Who profits?

Suppose, then, that no impartial jury could have been selected, suppose the searches were illegal, or that because of his lack of counsel or the conduct of the police and district attorney, the case was thrown out of court? Then there would have been the unsolved assassination of the President, the crime of the century without a solution, for there was no other suspect. The Supreme Court itself may have given us an appropriate answer to the questions raised about the legality of the searches. In a unanimous decision, as reported in the Washington Post of January 19, 1965, it struck down a warrant under which Texas authorities had seized about 2,000 books

and pamphlets from the residence of John W. Stanford, Jr.:

"Justice Potter Stewart, writing the Court's opinion, said the warrant was invalid because it did not comply with the requirement by the Federal Constitution that things to be seized must be described with particularity . . . Stewart said, 'The constitutional impossibility of leaving the protection of those freedoms (guaranteed by the First Amendment) to the whim of the officers charged with executing the warrant is dramatically underscored by what the officers saw fit to seize under the warrant in this case.' Stewart added that the Constitution 'guarantees to John Stanford that no official of the State shall ransack his home and seize his books and papers under the unbridled authority of a general warrant . . .'"

For Oswald there was not even an invalid warrant.