Barr McClellan on "A Guide to JFK Assassination Evidence"

[Douglas Caddy]

A Guide to JFK Assassination Evidence

By Barr McClellan

The foundation for assassination research is evidence. This means facts admissible in court. The rules of evidence are well-developed, and very effective to present the facts. Based on the entirety of the case – of all the facts presented, the truth emerges. A final verdict is possible.

Some suggest historians develop facts better than lawyers. This review considers various ways contentious facts have been discussed by historians and by lawyers.

The rules of evidence are well-developed, based on many centuries of judicial review. Numerous texts state the rules in careful detail. Those rules may seem complex but are very workable on the many specific points in issue in any case and are written to assure fairness. Lawyers for the specific parties and interests better assure the facts are presented. The courts, by insisting on considering all possible facts and nuances, further assure all sides are represented and heard. Education and experience in developing facts are essential.

Skilled attorneys present the facts through witnesses. The crime scene is developed, witnesses tell what they know and the many rules of evidence available in the courts are invoked to tell the whole case, to develop the “totality of the evidence.” Lawyers worth their license will be sure every possible fact is presented.

What a witness says is evidence. So is what a witness writes.

Physical evidence is presented by witnesses. The crime scene is explained.

Corroboration of testimony is developed.

There is the problem of hearsay, initially not admissible; however, to develop the facts, many exceptions allow such testimony. The courts want to see and hear as much as possible. Hearsay is usually allowed, provided the many interests are aware of what is being offered as evidence, as facts. Fairness to all parties is better assured.

Circumstantial evidence is also allowed. Again, such evidence must be developed carefully. Courts want as much explanation as possible. Circumstances explain direct testimony, permit facts by inference and better explain and verify the case.

Special rules allow old records to be admitted. Newspapers may appear. What a witness understood is acceptable even if admitted only to show what the witness understood, not necessarily to establish the truth of the testimony. Testimony by other witnesses will support what the witness understands.

The facts to be presented before any forum should be by witnesses. In cold cases and in any historic review, old documents are required. There is no rule that statements by long-dead witnesses are not to be heard. Documents and statements are admissible even if “ancient;” that is, over twenty years old.

Credibility is always an issue. Corroboration is always useful. Crime scene evidence is necessary and is almost always present. The obvious preference is to have the body and the weapon. When such physical evidence is missing, the killer does not walk. Circumstantial evidence is available. The lawyers make their case but the jury is the final decision-maker. Explain the strengths and weaknesses with fairness to all parties. Then the jury decides.

The rules also provide ways to present a complete case. Facts relied upon by a witness may be hearsay but are admitted without those facts being true. Later evidence adds the necessary support. When a defendant makes statements against his best interest, the confession is admitted. There are many ways to assure the facts are presented. Judges will allow evidence to the extent relevant or even irrelevant.

Credibility is a further issue. Often witnesses are not the ideal; some are scurrilous criminals. Attorneys take their witnesses as and when they are available. Credibility is explained, based on the totality of the evidence.

The rules of evidence are also helpful in moving the case forward. When a person does not deny an accusation, the facts may be deemed admitted. When a person is part of a conspiracy, the defendant may have to present facts or be adjudged guilty. When a person delays a response, laches may bar the testimony.

A complete case is the final measure of a well-developed presentation. The “totality of the evidence” is to be considered. A final verdict is then possible. When all the evidence is presented and explained, the trier of fact makes a decision. In a jury trial, the jury makes the decision. In an investigation, the members of the panel make the decision. In an author’s book, the reader makes the decision.

Has a case been made? Is credible evidence presented? Have the interests of all parties been presented? These questions have to be presented by the lawyer or author for a fair decision to be made.

The public is familiar with the rules of evidence. Testimony and related facts are what anyone uses to evaluate a case. Rules of evidence in court are designed to permit the parties to present their case and to allow the trier-of-fact to make a judgment based on the entirety of the case. Juries are to be trusted. Contrary to what some insiders believe, we are able to handle the truth.

In the Kennedy assassination, a super-majority has made the decision. There was a conspiracy. Their judgment implicates Lyndon Johnson, at the very least for failing to uncover the conspiracy. All the persuasive evidence points to a few key interests as assassins. The burden on the writer is to help the trier-of-fact consider all the facts. Like a juror, the reader considers and decides.

This judgment by America of guilt, this verdict, has been strongly contested by several well-known historians or by writers who have promised they have followed strict rules for reporting. Lawyers have added to the research, using and abusing the rules of evidence.

The rules of evidence used by lawyers are well-documented. Many volumes explain how evidence is developed to assure a fair presentation to all parties.

In reviewing historians’ rules of evidence, there is no manual for what is reliable.

The Warren Commission (1964) is an excellent example of the failure to follow the legal rules. Warren’s crime scene investigation was ruined by their failure to follow the rules of evidence. One rule is to present all sides of the case. Not done. Another is to disclose all relevant evidence. Not done. Still another is to follow standard inquiries into motives. Not done. Cui bono – who gained the most, is always a key question –ignored. Warren also disregarded cui malo, who lost the most. This question is usually assumed; however, in the rush to judgment, careful consideration was not made of every line of evidence. The Kennedys were not assured a complete case was presented.

The overall objective is to consider the totality of the case.

Warren failed these basic rules of evidence. An objective investigation was not conducted. One rule dominated, that we were not a “banana republic.” In other words, in a very subtle way, the victor wrote the history.

Another example is Nigel Turner’s The Guilty Men (2003). Turner is a documentarian who presents his case through interviews with people who knew about the conspiracy and were willing to speak up. Each person’s credibility was then considered by the audience.

The series was presented to the History Channel. Their resident historians found the series to be “meticulously” documented. The Guilty Men was broadcast. Friends of LBJ quickly rose to suppress the documentary. After a strong power play led by Jack Valenti, three historians were engaged by the History Channel to review the documentary. The three concluded we must “trust government.” With government corrupt as it is, the suggestion violates common sense. Consider what John Quincy Adams said,

“The public history of all countries, and all ages, is but a sort of

a mask, richly colored. The interior working of the machinery

must be foul.”

The History Channel suppressed The Guilty Men.

The lead historian was Robert Dallek who presented not a single fact. His book on LBJ [Flawed Giant (1999)] touched on one key issue, an indictment by a grand jury in Texas ruling three men killed a government investigator. LBJ was identified as a murderer. Dallek said Billie Sol Estes was not reliable. The Estes webpage says the grand jury did not rely on his testimony. Are we left with Oscar Wilde’s saying, “History is merely gossip.”

The House Select Committee on Assassinations (1976) concluded there was a conspiracy, probably by some members of the CIA, the Mafia and Cuban freedom fighters. Their conclusion is very close to what we know today. New evidence brings the CIA and the Mafia into the case, all centering on LBJ.

The Assassination Records Review Board (1998) recommended records held by Billie Sol Estes be investigated. The historians have ignored careful review of any such evidence.

Another researcher is Vincent Bugliosi. Skilled in the rules of evidence, his text is one mistake after another [see Reclaiming History (2007)]. He relies on clearly inadmissible and irrelevant ridicule. A motion in limine would eliminate half his book. In the Estes case, he states the grand jury did not have authority to do what it did, to conclude LBJ should be indicted for murder. Bugliosi is a case of an attorney relying on what a historian would apparently consider – personal opinion and character attack. There is no evidence in such a polemic.

The example of a noted biographer and journalist also refers to evidence. The judgment of Robert Caro is noteworthy for considering nothing. He says there is no evidence LBJ was involved [The Passage of Power (2012)]. The rules of evidence say there is ample evidence.

Caro vaguely mentioned investigations of LBJ underway on November 22, 1963, then drops any follow-up. Estes advancing corrupt money to LBJ is admitted by some but it ignored by Caro. The Estes relation was so important LBJ had to deny it despite overwhelming records to the contrary. Madeleine Brown is totally ignored even though Caro deems other LBJ mistresses to be relevant.

Caro fails to consider any of that evidence. He does not respect the rule of presenting a complete case. He is not interested in recognizing cui bono or cui malo, mandates requiring all evidence be presented. The evidence is not balanced between the two men.

Since Caro is not a historian or attorney, is his judgment to be disregarded? Is his reliance on journalist’s rules relevant? If so, what are those rules? More important, has he considered all the legal evidence? Conspiracy evidence centering on LBJ – ignored. Admissions to others – ignored. The Lyndon Johnson modus operandi – ignored. The vast evidence assembled by Caro himself – ignored. Nothing in his conclusions indicates he acted to respect the Kennedys and their quest to know what happened to John Kennedy.

Where do these historians and journalists fall short? Legal evidence is based on at least two sides, often in sharp disagreement, presenting the facts to convince the triers-of-fact to arrive at the “accepted wisdom,” to present the facts that make the whole case, to have what many consider to be the truth. As any trial attorney will tell you, a trial is like a play – with three exceptions: you are never certain what your witnesses will say, there is only one presentation of the trial, and there is always at least one other attorney on the other side presenting the same witnesses and same facts but with an entirely different ending. Juries then resolve the case.

The key rule for conspiracies is that once the conspiracy is established, the conspirators have to show their innocence. Warren produced nothing. The Select Committee stopped short. ARRB recommended obtaining the Estes evidence. The totality of the case remains hidden. Injustice toward the Kennedys dominates the case. Cui malo is avoided.

Our grief over the loss of John Kennedy remains open. Closure is not possible.

The super-majority of America knows there has been no justice for John Kennedy.

So what is evidence based on “historians’ rules”? There are no specific rules. What a particular historian might consider relevant is the only guideline. There is no effort to present all the facts. This standard of personal judgment is adopted by several historians; however, such personal bias will not support the “lone nut” theory nor will it uncover the conspiracy behind the assassination of John Kennedy. One-sided evidence will not stand up in a court of law. As is abundantly clear, avoiding fairness to JFK has not and will not convince America.

Some historians suggest lawyers would not use any and all evidence a historian might use. This statement is incorrect. Lawyers will uncover all evidence and will find a way to present that evidence. The best approach is to use all available evidence and make the case to the court, to the judge and jury, and to the reader. Present all the evidence to make the “totality of the case” to the American people. Fortunately, many independent researchers have presented the legal evidence, the trial court evidence, the facts. Too often, a single historian or even a group of historians are mired in the single-person mentality. They become the trier of fact based on less than the total case.

Are there any rules of evidence more carefully developed than those used in court? “The historian and the detective have much in common [emphasis added],” advises Mark M. Krug. All the rules available to lawyers, to historians and to journalists should be used. The best approach is to consider all the evidence and thus assure the reader the evidence would be admissible in court. Be assured this consideration of the “totality of the case” is possible with the facts presented by so many independent researchers. Unfortunately, some turn on others rather than welcoming any addition to the vast information available. The opponent in this case is the government and its powerful allies. Consider the media powers supporting CIA’s Mockingbird. Consider the powerfully wealthy supporting LBJ’s trusted friend and Texas super-lawyer Edward A. Clark and his quest for the bonus. We have the darkest of deep politics.

An interesting case for historians remains “pending.” The case involving Mac Wallace, the vicious murder of federal investigator Henry Marshall, and the investigations by Texas Ranger Captain and Chief U.S. Marshal Clint Peoples along with the action by a grand jury in Robertson County, Texas present a serious challenge for historian’s evidence. Further information is in my next book, The Verdict.

Consider what we already know. Billie Sol Estes had vital stories about the LBJ crimes. Raising money for LBJ’s presidential ambitions, disclosing what happened to Henry Marshall, the corroboration by Clint Peoples, becoming the second “patsy,” the massive effort to suppress what he knew, the exoneration by a federal panel of the cover-up attempted over Clint Peoples, the continuing refusal to consider the available facts.

Some historians rely heavily on Jim Garrison who tried but did not get a conviction. Garrison is well-recognized as the law enforcement official with the courage to move forward. He was also the man who inspired Oliver Stone – neither historian nor lawyer – to produce JFK, the major breakthrough in assassination research. Garrison is to be honored for his investigations, a point I discussed with his family in New Orleans at a book signing. I have also disclosed the close relations between Oswald and the “Texas evidence,” including support by George deMohrenschildt. New evidence ties him to LBJ’s lifetime ally Judge Robert Bibb of Eagle Pass, Texas and to the CIA. We see unified action by the chief conspirator.

Some historians contradict themselves, declaring their conclusions even while calling for further investigations. We know where most of the missing evidence is located. Several government agencies have called for such still-hidden evidence. More evidence is demanded in my draft petition to law enforcement. The grand jury records must be disclosed. The Estes records must be examined. Both the ARRB and the Department of Justice wanted to recover and review that evidence. They did not dismiss the Estes records and testimony as worthless. The missing tapes of LBJ conversations must be subpoenaed. Such additional evidence is available. Any conclusions are premature. All available evidence must be considered. The totality of the case has to be evaluated.

Not surprisingly, historians and lawyers intent on preserving the LBJ record while he was president find themselves forced to disown the Texas research. Relying on perceived attitudes and self-serving statements, these historians fail because they reject the rules of evidence – and the fairness required. They prefer “historian evidence,” whatever that standard may be. Their fundamental error is to ignore courtroom evidence and the time-tested validity the legal rules provide. They fail to consider the massive evidence against LBJ. They fail to provide the ultimate test by lawyers – a presentation of all the facts in a contested trial of the evidence and a decision by the triers of fact. The word is “fairness” from which justice emerges.

Tragically, historians and deniers of the “banana republic” syndrome are able to ignore cui malo and the horrific tragedy imposed on the Kennedys and on America. What is their reason for ignoring cui bono? Do they fear cui malo? Their silence deafens.

Such limited review is manifestly unfair. We are not dealing with a board game or some apologia. We have real people and a real case. There has to be evidence. There is evidence. Already, there is enough to convict LBJ under the rules for conspiracy trials. Due consideration of cui bono is necessary. The overlooked rules for cui malo must be presented and evaluated. Few consider who gained the most; none consider who lost the most. Always weigh the totality of the evidence. Do not provide impossible defenses on the one side or willful avoidance on the other side. LBJ is not too big to fall nor is JFK treated fairly by ignoring him. John Kennedy, Jr. deserves an answer to his quest to find who killed his father. So, too, does his family.

The case showing Lyndon Johnson deeply involved in the assassination of John Kennedy is overwhelming. The additional evidence available only through subpoena demands action.

Preparation of the case is underway – with a challenge to debate the evidence.

Historians must maintain integrity with full disclosure. Too many do not look at all the evidence, rely instead on platitudes of “trust government.” Thomas Jefferson said it, “History, in general, only informs us what bad government is.”

Evidence is absolutely necessary. Speculation in a real case involving very real people is totally inappropriate and impermissible. Failure to understand the rules of evidence or of history means one-sided results. What is necessary is consideration of all evidence, a fair evaluation of such sources, a trial setting where all evidence is duly considered, and a decision by the triers of fact.

Over the past fifty years, that presentation has been made. In addition, a super-majority has made their decision. There was a conspiracy and the usual suspects were involved. The available evidence confirms their verdict. The key defendants are some CIA agents, some Mafia members and the Texas evidence centering on LBJ.

LBJ said there was a conspiracy. America agrees.

Historians should direct their investigative efforts to understanding and accepting why America agrees.

Further details are in Blood, Money & Power (2003) and in the soon-to-be released The Verdict: Justice for John Kennedy, Justice for America (2014). Important new details are also in the vast research and evidence uncovered by so many independent researchers, seeking a unified result called justice.

[David Josephs]

A very interesting essay...

As I read it though I find myself asking - what if it is the very evidence sought which is in itself the cover-up and conspiracy.

There is a large difference between evidence that leads to a contradiction, piled upon each other to disprove a theory

and evidence that leads nowhere, evidence that cannot be validated or authenticated in the legal sense...

For example: Stated as fact: Kleins shipped the FC rifle for all orders like HIDELL's as they ran out of the TS....

Yet while we HAD the microfilm of KLEINS orders going back some time, the evidence is now gone... there is no way to prove one way or the other what KLEINS was shipping for those orders until someone in the whole of the US comes forward with a KLEINS shipment of a 40"FC for the C20-T750 ordered...

We simply cannot know, cannot confirm and cannot disprove the contention.... and evidence fitting this problem runs rampant throughout the "Historically accepted evidence"

What surprises me most is our communities belief in complex planning to actuate conspiracy throughtou the world by a very select group of people

cannot accept that the first 10 layers of the onion, pointing to CIA members, MAFIA members, CUBANS etc... is in fact simply more of the smokescreen and cover-up which insulates the real culprits behind the planning...

While "we" are indicting these FALSE SPONSORS as the end-all of the conspiracy... the actual mechanics of what occurred is buried many more layers within...

Sadly I think that the actual "courtroom evidence" needed to ID the guilty is long gone while we chase our tails with the red herrings and blind alleys created over 50 years of watchdogging...

This is not to say that elements identified were not somehow involved or may even have pulled a trigger or two...

Yet they are not the ones who were in a position to ensure that Rear Admirals of the Navy and a 4 star General of the AF did what was needed....

McGeorge Bundy along the owners of Banks/Insurance co's in Boston, Montreal and London and comapnies like TEXTRON are closer to the center of this storm..

The lawfirm of Cravath, Swaine and Moore and it's partners including McCloy, Rowsell Gilpatrick, Arthur Little, Paul F Clark who helped TEXTRON via John Hancock Life and 1st Bank of Boston grow into a DEFENSE powerhouse making billions off of the Vietnam War...

Not EVERYTHING was connected to the JFK assassination.... yet the history shows it is very easy to attached unrelated activity to the killing and cover-up... while some of the most glaring subjects are dismissed.

To me, we find out who tells Bundy to not okay the destruction of the final Cuban airplanes, to draft NSAM273 before 11/22 in direct conflict with what JFK says all along...

we begin to find the head of the serpant.... and imo it wears a Skull and Bones membership pin.

DJ

McGeorge Bundy:

Raised in Boston, Massachusetts, Bundy came from a wealthy family long involved in Republican[1] politics. His mother, Katherine Lawrence (Putnam), was the daughter of two Boston Brahmin families listed in the Social Register. His father, Harvey Hollister Bundy, was from Grand Rapids, Michigan and was a diplomat who helped implement the Marshall Plan.

Bundy attended the elite Dexter School in Brookline, Massachusetts and then the Groton School, where he placed first in his class and ran the student newspaper and debating society. He was then admitted to Yale University, one year behind his brother William. At Yale, where he majored in mathematics, he served as secretary of the Yale Political Union and then chairman of its Liberal Party. He was on the staff of the Yale Literary Magazine and also wrote a column for the Yale Daily News. Like his father, he was inducted into the Skull and Bones secret society, where he was nicknamed "Odin". He remained in contact with his fellow Bonesmen for decades afterward.[2] He graduated Yale in the class of 1940. During World War II he served as a U.S. Army intelligence officer

DJ

[Paul Brancato]

David - was it McGeorge Bundy who was in charge of the situation room in the WH during AF 1 flight back to DC?

[David Josephs]

David - was it McGeorge Bundy who was in charge of the situation room in the WH during AF 1 flight back to DC?

"In Charge"? IDK... but he definitely was part of the process ordering the Cabinet plane back and supposedly telling AF-1 about Oswald and no conspiracy....

Bundy also called off the destruction of the remaining Cuban fighters without telling JFK, the morning of the BoP attack.

Yet the most telling to me (and what Prouty makes a point about) is the rewriting of NSAM263 into 273 which was rewritten PRIOR to 11/22 and completely reversus the agreed upon actions and direction of JFK...

as outlined in this OCT 11 memo... with the pertinent sections of the report on the right...

Prouty cannot over emphasize this.... The question remains - how Bundy would know to make such wholesale changes to the policy knowing full well that agreement had already been reached...

That all changed with JFK's death and the acceptance of 273 and the filing away of 263...

DJ

273

4. The President expects that all senior officers of the Government will move energetically to insure the full unity of support for established U.S. policy in South Vietnam. Both in Washington and in the field, it is essential that the Government be unified. It is of particular importance that express or implied criticism of officers of other branches be scrupulously avoided in all contacts with the Vietnamese Government and with the press. More specifically, the President approves the following lines of action developed in the discussions of the Honolulu meeting, of November 20. The offices of the Government to which central responsibility is assigned are indicated in each case.

263:

4. It is of the highest importance that the United States Government avoid either the appearance or the reality of public recrimination from one part of it against another, and the President expects that all senior officers of the Government will take energetic steps to insure that they and their subordinates go out of their way to maintain and to defend the unity of the United States Government both here and in the field. More specifically, the President approves the following lines of action developed in the discussions of the Honolulu meeting of November 20. The office or offices of the Government to which central responsibility is assigned is indicated in each case.

273:
7. Planning should include different levels of possible increased activity, and in each instance there should be estimates of such factors as:

A. Resulting damage to North Vietnam;

B. The plausibility of denial;

C. Possible North Vietnamese retaliation;

D. Other international reaction.

Plans should be submitted promptly for approval by higher authority.

(Action: State, DOD, and CIA. )

263:
7. With respect to action against North Vietnam, there should be a detailed plan for the development of additional Government of Vietnam resources, especially for sea-going activity, and such planning should indicate the time and investment necessary to achieve a wholly new level of effectiveness in this field of action.

(Action: DOD, and CIA. )

273 simply removes the lined out text:

9. It was agreed in Honolulu that the situation in Cambodia is of the first importance for South Vietnam, and it is therefore urgent that we should lose no opportunity to exercise a favorable influence upon that country. In particular, measures should be undertaken to satisfy ourselves completely that recent charges from Cambodia are groundless, and we should put ourselves in a position to offer to the Cambodian a full opportunity to satisfy themselves on this same point

[Douglas Caddy]

http://www.youtube.com/watch?v=GEJhdFOeHbs

Barr McClellan's press conference on the publication of his first book, Blood, Money and Power, in 2003.

[Paul Brancato]

Thanks - interesting presentation, especially in light of the lack of movement re unreleased files since then. Lawyers records would be telling.

[William Kelly]

He would have helped his own credibility if he didn't make up conversations and create imagined circumstances in his book, which was supposed to be non-fiction.

He also ignores that the grand jury is the legal court where evidence is presented before it goes to trail.

BK