How Would You Defend Lee Harvey Oswald In A Court Of Law?

[David Von Pein]

The conversation below is from a discussion I had with a Mr. David Axelson at one of Amazon's forums in 2015, which was two years before Amazon decided to discontinue and completely delete all of their "forums" and discussion boards. Fortunately, however, I was able to archive a lot of interesting JFK-related Amazon Forum discussions at my own website before all of them fell prey to the big "Delete" button in cyberspace. One such interesting archived example is this one....

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DAVID AXELSON SAID:

Mr. Von Pein - Okay, here's a question for you:

Assume that you are defending LHO against the charge that he murdered JFK. Ignore the legal maneuvering that might help Oswald's case (such as a motion to exclude the Bethesda autopsy witnesses on the grounds that Texas law required the Dallas medical examiner perform the autopsy).

What approach or alternative scenario would, in your opinion, stand the best chance of producing a "Not Guilty" verdict?

And, of course, what evidence would you rely on to support that approach or scenario?

For example, you could argue that Oswald has an alibi, that he was in the second-floor lunch room, and the evidence that supports this is that he couldn't have come down from the sixth floor to the second floor (where Baker saw him), because Victoria Adams would testify that she descended the stairs immediately after the assassination, and did not see or hear Oswald.

So that would be your approach ("alibi") and supporting witness (Victoria Adams).

I'm not looking for a thesis here, just a quick analysis by some of you who are more familiar with the evidence than I.

To be honest, I couldn't think of a GOOD approach myself; I wound up proposing that some unidentified conspiracy had framed Oswald, but IMO any competent prosecutor would have destroyed that argument rather handily. But maybe you can think of something I missed.

Regards,
D. Axelson


DAVID VON PEIN SAID:

It is, indeed, difficult to come up with any kind of reasonable defense for Lee Oswald, given the evidence in the case that so clearly indicates his guilt--in TWO murders. But it's possible the Tippit murder might have been severed from the JFK murder trial, had there been one. Do you think that would have happened?

Anyway, since ALL of the physical evidence points to Oswald, I can't see any legitimate defense for Oswald's counsel. They would, therefore, be pretty much forced into arguing the same lame things we always hear from the CTers today -- the "Everything Is Fake" approach.

How would it even be possible for Oswald's attorneys to NOT offer up such a defense, given the evidence that exists here (guns, bullets, shells, prints, paper bag, fibers, etc.)? And that doesn't even count Oswald's own guilty-like actions.

How could a defense lawyer sidestep Oswald's fleeing the scene of the crime (when also considering the evidence that was found up on the sixth floor)? And his lying (twice) about the "curtain rod" package?

That lie about the "curtain rods"--all by itself--might be enough to tip the scales in the mind of at least one juror. For why--if he's innocent--does he TWICE tell such a blatant falsehood to co-worker Buell Wesley Frazier about the contents of that brown paper package?

Lee's in bad shape just based on that big fat lie alone.

I suppose LHO's lawyers could always claim "Not Guilty By Reason Of Insanity".

Or:

"Not Guilty Because CTers Insist Upon Saying Oswald Never Ordered The C2766 Rifle, Even Though The Paperwork Proving He Ordered It Is Six Miles Deep With Oswald's Handwriting On Most Of It".

https://jfk-archives.blogspot.com/2014/12/oswald-ordered-rifle.html

And the "Victoria Adams Didn't See Him" defense tactic would sink rather quickly too, IMO. Here's why.

It's a good topic to ponder, however -- i.e., WHAT KIND OF DEFENSE WOULD YOU COME UP WITH FOR A PERSON WHO IS SO OBVIOUSLY GUILTY?

Well, I guess Johnnie Cochran and Company were faced with that same dilemma in 1995. But, fortunately for them, they had a man named Mark Fuhrman and those racy tapes to help them set a double-murderer free.


DAVID AXELSON SAID:

Mr. Von Pein -

[Quoting DVP from an earlier post:]

"But it's possible the Tippit murder might have been severed from the JFK murder trial, had there been one. Do you think that would have happened?"

[End Quote.]

That, actually, is one of the moves that I expect LHO's defense counsel would have made, had there been a trial. It's extremely hard to see how to argue that LHO isn't JFK's killer, if the evidence comes in that he killed Tippit. It's actually a two-step process — first, a motion to sever the trial for the murder of Tippit from the trial for the murder of JFK, and then a separate motion to exclude the "Tippit evidence" from the JFK trial.

Would it have worked? My conclusion was that the judge would have granted the motion for a separate trial, but denied the motion to exclude. I think the judge would have ruled that the "Tippit evidence" showed Oswald's "guilty knowledge", that it was evidence of "flight to avoid prosecution", or possibly that it was all part of the same set of circumstances.

You haven't mentioned it, but Oswald's attempt to kill Nick McDonald presents many of the same issues. It's hard to suggest that Oswald lacked the will to kill JFK, when he pulled out his gun and tried to shoot McDonald. So as a defense attorney, you would want to keep that out of the JFK trial as well . . . but I think the evidence of LHO's actions at the Texas Theater during his arrest are probably more admissible than the Tippit encounter. And that, actually, makes it HARDER for the judge to exclude the "Tippit evidence"; it doesn't make much sense for the judge to say that the "Tippit evidence" is inadmissible, once he's decided that the "McDonald evidence" can come in.

Take a look at that 1964 film, "The Trial of Lee Harvey Oswald", and you'll see that the filmmakers reached that same conclusion, since the evidence presented in that version includes the "Tippit evidence". Not conclusive on the question, certainly, but a pretty good indication as to how contemporary lawyers viewed the situation.

[Quoting DVP:]

"I suppose LHO's lawyers could always claim `Not Guilty By Reason Of Insanity'."

[End Quote.]

True, and that's the defense offered in the 1964 film. Couple of problems with that approach, however. First of all, we today have no evidence that 1963 LHO met the legal requirements for a claim of insanity. No psychiatrist or psychologist examined him during that time period, so we have none of the expert testimony that would have been required.

The classic definition of insanity is the "M'Naghton test": "to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong."

Did Oswald have a "disease of the mind"? Well, he would probably be diagnosed today as having antisocial personality disorder, but I doubt that would qualify as a "disease". Nor did he have a "defect of reason" as a result; he was able to function normally enough on a daily basis — hold a job, plan for the next day, and so on. And he CLEARLY knew the nature, quality, and wrongfulness of his actions, since he fled the scene.

So IMO, "insanity" had no chance of working as a defense. And that's assuming you could have gotten Oswald himself to agree to that approach.

At any rate, your analysis pretty much confirms the conclusions I had reached. So thanks!

But that brings us to your final question, which I wrestled with as well: "WHAT KIND OF DEFENSE WOULD YOU COME UP WITH FOR A PERSON WHO IS SO OBVIOUSLY GUILTY?"

What I came up with for my presentation (which was (a) the best of a bunch of BAD options, and (b) extremely unlikely to succeed) was, in fact, a "conspiracy to frame" defense. I argued that person or persons unknown might have broken into the Paine garage, stolen Oswald's rifle, smuggled it into the TSBD, and used it to kill JFK. They had also seen Oswald carrying his package, realized that it would have his fingerprints on it, and stolen that from wherever he placed it in the TSBD, and dropped it in the sniper's nest.

This approach conceded that all of the evidence linking Oswald to the rifle and the sniper's nest was correct (that is, the rifle DID have his palm print on it, since it was his rifle), but attempted to wriggle though the cracks to offer a plausible alternative scenario (i.e., a "reasonable doubt"). Would it have worked? Almost certainly not, but that glimmer of hope seemed to me better than anything else a defense attorney might have tried.

The hardest part of that approach would have been keeping Oswald himself off the stand; I believe that once LHO started testifying, he would have had NO chance of winning acquittal. (Wade's first question on cross-examination: "Now, Mr. Oswald, is it true that you're a COM-MUN-NIST?")

Regards -
D. Axelson


DAVID VON PEIN SAID:

Thank you, Mr. Axelson, for your follow-up post above. I enjoyed reading it. Very interesting stuff.

David Von Pein
January 2015

 

Edited yesterday at 01:45 AM by David Von Pein

[Benjamin Cole]

How Would You Defend Lee Harvey Oswald In A Court Of Law?

DVP--

A quick answer: "Show a clear crisp copy (or original) of the Z-film to the Texas jury of 12."

Whether accurately or not, the Z-film appears to show JFK being shot from the right and front.

I assume defense counsel would also summon numerous witnesses who would testify they heard shots and saw gunsmoke in the GK area. Especially Sam Holland, who is the very picture of Texan salt of the earth. 

On a LHO-homicide jury of 12, there may well be one or two, or perhaps even several, who would reason, "You know, something is fishy here. The government says LHO shot JFK from the back. But the Z-film, which I see with my own eyes, shows a shot from the right and front. And we have credible witnesses who say they heard a shot from the GK, and Sam Holland says he saw gunsmoke from there."

I am not sure how Dr. Crenshaw would have testified in such a trial, but it appears he believed there was a wound from the right and front to JFK's head. 

Several members of the jury might conclude they have reasonable doubts about who perped the JFKA. They might suspect shots came from the Grassy Knoll. 

Reasonable doubts does not mean innocence, although jury results concluding "not guilty" should be treated as "exonerated." 

We have to treat everyone, regardless of status, as innocent until found guilty in a court of law. 

You can see why Jack Ruby more or less insinuated LBJ/Deep State had LHO rubbed out. 

 

 

[David Von Pein]

1 hour ago, Benjamin Cole said:

A quick answer: "Show a clear crisp copy (or original) of the Z-film to the Texas jury of 12."

Whether accurately or not, the Z-film appears to show JFK being shot from the right and front.

And after the defense attorney had shown the Zapruder Film to the jury, the prosecutor would then call all three autopsy doctors to the witness stand, who would each testify to the fact that their examination of JFK's body revealed beyond all possible doubt that President Kennedy had been struck in the head by only ONE single bullet, with that bullet entering the rear portion of JFK's skull, not the front part of his head.

And the prosecuting attorney, for good measure, would almost certainly show the jury the composite photo below (or something very similar), to illustrate the fact that the BACK of the President's head remained completely intact after the bullet struck him in the cranium, despite what the various Parkland witnesses said to the contrary.

Perry, your witness.

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Edited yesterday at 04:27 AM by David Von Pein

[David Von Pein]

1 hour ago, Benjamin Cole said:

You can see why Jack Ruby more or less insinuated LBJ/Deep State had LHO rubbed out. 

You must have meant to say "JFK" here, instead of "LHO". Right?

 

Edited yesterday at 04:20 AM by David Von Pein

[Joe Bauer]

The Dallas DA Henry Wade would have rushed a murder charge trial regards Oswald's killing Tippit first and immediately.

Oswald would be found guilty of that crime in a one hour jury deliberation decision.

Wade would have requested a "Death Penalty" sentence and gotten this easily.

Oswald would have to carry that monstrously damning "cop killer" moniker with him all throughout a following JFKA trial.

Oswald could never overcome that kind of "cop killer" guilty conviction jury bias in the JFKA case.

Aside from that I think the only thing that might have given Oswald any chance of a less than death penalty conviction in the JFKA case might be if he could somehow "prove" his claim (regards what he told the world the late night of 11,22,1963 inside the Dallas Police building headquarters) that he was ..."just a patsy!"

If Oswald truly believed he was a patsy one could logically assume he would in the least have some idea about who set himself up as one. Could you imagine if Oswald started naming names?

If I was Oswald's attorney I would take jurors back to New Orleans during the summer of 1963.

Oswald engaged with so many shady characters and was involved with so many shady activities there one would have to be blind and stupid to not "at least consider" the possibility that his actions and connections there just months before 11,22,1963 were in some way related to his actions two months later.

Right after Oswald left NO and went to Mexico City and then moved to Oak Cliff he somehow gets a job in a building that couldn't have been a more perfectly located one along the JFK motorcade route with a perfect deserted higher floor allowing for the set-up of a hidden sniper's nest with a perfect "turkey shoot" view shot at the wide-open JFK?

A high floor building with open windows just above JFK's slowed down limo passing underneath? A building that didn't draw one security person's ( out of hundreds ) scrutiny in anyway both minutes before and during JFK's passing beneath it?

I would also find and present Sylvia Odio and her sister Annie as witnesses to a possible collaboration between Oswald and others.

Lastly, I would investigate one last collaborative or patsy set up angle.

It's one that could only be used today with advancements in facial recognition technology. I would have as many faces in the ground level bystander crowds in Dealey Plaza scanned to see if any would reveal any nefarious characters in the world of black ops. And I would do the same with the Oswald NO leaflet passing photos near the N.O. International Trade  Mart.

If it could be scientifically proved that Oswald's Texas School book Depository supervisor Bill Shelley is standing with Oswald there... Houston...we have a problem.

 

Edited 17 hours ago by Joe Bauer

[Benjamin Cole]

48 minutes ago, David Von Pein said:

And after the defense attorney had shown the Zapruder Film to the jury, the prosecutor would then call all three autopsy doctors to the witness stand, who would each testify to the fact that their examination of JFK's body revealed beyond all possible doubt that President Kennedy had been struck in the head by only ONE single bullet, with that bullet entering the rear portion of JFK's skull, not the front part of his head.

And the prosecuting attorney, for good measure, would almost certainly show the jury the composite photo below (or something very similar), to illustrate the fact that the BACK of the President's head remained completely intact after the bullet struck him in the cranium, despite what the various Parkland witnesses said to the contrary.

Perry, your witness.

___________________________________________________________________________________
____________________________________________________________________________________

 

DVP--

Thanks for your collegial reply.

I assume you are correct regarding prosector strategy. 

1. Do you think the color photograph you provided, top-left, the color shot of the back of JFK's head, which gives the appearance of an unwounded head...would do what? I would think that would only heighten juror uncertainty. 

2. Yes, some doctors would say they witnessed a rear entry wound to JFK's head, and I guess Crenshaw would give his view in court that the bullet came from the front. Again, I am positing reasonable doubt on the part of jurors, and that doubt only needs to apply to say, two or three jurors. Or even one real hard-baller. You need 12-0 for murder conviction.

3. The top-right x-ray, to a juror...solves what? Again, it looks murky and I can't tell if a bullet entered frontally and took out matter upon exiting, or not. A competent defense counsel would assert the bullet entered from the front, as seen in the Z-film. I got to say, I would have reasonable doubt. 

On Ruby, it is funny you ask. When Ruby made his cryptic comment to the effect that "none of this would have happened if Symington had been vice president" ---maybe he was referring to the JFKA, or the LHOA. Or both. Ruby seemed to know he had lured into a larger and darker world than he knew.....

 

[Benjamin Cole]

4 minutes ago, Joe Bauer said:

The Dallas DA Henry Wade would have rushed a murder charge trial regards Oswald's killing Tippit first and immediately.

Oswald would be found guilty of that crime in a one hour jury deliberation decision.

Wade would have requested a "Death Penalty" sentence and gotten this easily.

Oswald would have to carry that monstrously damning "cop killer" moniker with him all throughout a JFKA trial.

Oswald could never overcome that kind of "cop killer" guilty conviction jury bias in the JFK case.

Aside from that I think the only thing that might have given Oswald any chance of a less than death penalty conviction in the JFKA case might be if he could somehow "prove" his claim (regards what he told the world the late night of 11,22,1963 inside the Dallas Police building headquarters) that he was ..."just a patsy!"

If Oswald truly believed he was a patsy one could logically assume he would in the least have some idea about who set himself up as one. Could you imagine if Oswald started naming names?

If I was Oswald's attorney I would take jurors back to New Orleans during the summer of 1963.

Oswald engaged with so many shady characters and was involved with so many shady activities there one would have to be blind and stupid to not "at least consider" the possibility that his actions and connections there just months before 11,22,1963 were in some way related to his actions two months later.

Right after Oswald left NO and went to Mexico City and then moved to Oak Cliff he somehow gets a job in a building that couldn't have been a more perfectly located one along the JFK motorcade route with a perfect deserted higher floor set up to get a perfect placement, view and angle to get a "turkey shoot" shot at the wide open JFK.

I would also find and present Sylvia Odio and her sister Annie as witnesses to a possible collaboration between Oswald and others.

Lastly, I would investigate one last collaborative or patsy set up angle.

It's one that could only be used today with advancements in facial recognition technology. I would have as many faces in the ground level bystander crowds in Dealey Plaza scanned to see if any would reveal any nefarious characters in the world of black ops. And I would do the same with the Oswald NO leaflet passing photos near the N.O. International Trade  Mart.

If it could be proved that Oswald's Texas School book Depository supervisor Bill Shelly is standing with Oswald there... Houston...we have a problem.

 

JB--

 

Thanks for your collegial comment.

I have wondered about that, if Wade would have gone after "cop-killer' LHO first. 

Also, maybe a good prosecutor would not try to prove LHO fired the fatal shot (due to the Z-film) but would rather "prove" that LHO was part of conspiracy to perp the JFKA. 

[David Von Pein]

56 minutes ago, Joe Bauer said:

I would have as many faces in the ground level bystander crowds in Dealey Plaza scanned to see if any would reveal any nefarious characters in the world of black ops.

But why on Earth would anyone "in the world of black ops" have had any desire (or need) to mill amongst the bystanders in Dealey Plaza at the exact time of the assassination? That makes zero sense (IMO).

Dealey Plaza would have been the last place on the planet a co-conspirator would want to be during that critical point in time. (And you're surely not suggesting that anyone who would be visible in pictures at street level could possibly have actually been a gunman, are you?)

 

Edited yesterday at 06:14 AM by David Von Pein

[Greg Doudna]

I would establish that the Walker shot was staged for publicity by Oswald and Walker people; that Oswald's FPCC activity in New Orleans and letters to national communist leaders were for purpose of discrediting the FPCC as an operative; and that Oswald thought he was part of a third such illusory operation, to incriminate Castro in what he thought was going to be a staged failed assassination attempt, not a real assassination, blamed on Castro in order to provide a popular mandate and casus bellus for invasion and regime change of Cuba.

Even if only the first two of the above could be proven, but not the third (the assassination attempt to be blamed on Castro), it would establish reasonable doubt as basis for the jury to find a verdict of not guilty in the case of the third.

Oswald would admit the "marked rifle" was his, deny that he was on the 6th floor at the time of the shooting or that he fired the rifle, admit he fled the workplace, deny that he killed Tippit, would name names, claim his communist persona in the U.S. following his return from the Soviet Union was a sham, and testify that he lied to maintain cover after his arrest because he had been asked to do so temporarily by ATTU agent Ellsworth and/or FBI Hosty until intervention would get him released, but had been hung out to dry.

I would subpoena and compel testimony from Ellsworth and members of the Dodd committee concerning the "marked rifle" and how Oswald was enlisted in the service of Dodd Committee investigations.

I would not focus on Zapruder, autopsy, medical, witnesses to the President being hit, number of shots, claims of other locations of shooters, or evidence of conspiracy, for that is beside the point of finding my client--correctly and truthfully to my belief as defense counsel--innocent, as in, "he didn't do it". I would make no attempt to establish who did the assassination, only that Oswald did not murder the president or conspire to murder the president.

I've been watching a lot of old Matlock reruns lately. Matlock knew how to turn things around in a courtroom in cases of people framed who are actually innocent.

Does that answer your question David? 🙂 

[David Von Pein]

41 minutes ago, Benjamin Cole said:

Also, maybe a good prosecutor would not try to prove LHO fired the fatal shot (due to the Z-film)

But the Z-Film actually proves the opposite of what you're contending. The Z-Film proves the head shot came from BEHIND....not from the front:

....FORWARD head movement between Z312-313.

....All brain/blood/tissue is seen toward the FRONT of Kennedy (i.e., coming out the large exit wound near the FRONT).

....The back of the head completely blood-free and intact.

Edited yesterday at 06:05 AM by David Von Pein

[David Von Pein]

20 minutes ago, Greg Doudna said:

Does that answer your question David? 🙂 

Sure does. Thanks, Greg.

But I've got bad news for you and your defense team.....

The evidence is still too overwhelming to sweep aside. And that evidence is telling the world that your client committed 2 murders.

This stuff that hangs Oswald isn't going anywhere, no matter how many Matlock-like tactics you choose to employ:

 

Edited yesterday at 06:11 AM by David Von Pein

[Gerry Down]

What would be the majority required for a conviction ? 10-2?

If so, it might be difficult for the prosecution to get those 10 jurors for the conviction.

Just look at the OJ Simpson trial.

[Benjamin Cole]

15 minutes ago, Gerry Down said:

What would be the majority required for a conviction ? 10-2?

If so, it might be difficult for the prosecution to get those 10 jurors for the conviction.

Just look at the OJ Simpson trial.

GD-

 

For a murder trial, you need 12-0. 

[Benjamin Cole]

1 hour ago, David Von Pein said:

But the Z-Film actually proves the opposite of what you're contending. The Z-Film proves the head shot came from BEHIND....not from the front:

....FORWARD head movement between Z312-313.

....All brain/blood/tissue is seen toward the FRONT of Kennedy (i.e., coming out the large exit wound near the FRONT).

....The back of the head completely blood-free and intact.

DVP

 

Thanks for your collegial comments.

But that is your interpretation of the Z-film. 

Another interpretation, likely offered by the defense, is that JFK is pushed backwards after being struck, and so the fatal shot came from the GK area. 

Remember, anyone viewing the Z-film sees that big reaction---JFK being pushed backwards. 

I am not saying that is the correct interpretation. 

I am saying, jurors would have solid grounds for deciding the government has not made its case "beyond reasonable doubt." 

Toss in the Crenshaw testimony, the believable Sam Holland and many others...jurors might suspect the fatal shot came from the front...and that means ground for reasonable doubt. 

You do have one ace in the hole---the public sentiment against LHO would have been very high...

 

 

[David Von Pein]

1 hour ago, Benjamin Cole said:

Another interpretation, likely offered by the defense, is that JFK is pushed backwards after being struck, and so the fatal shot came from the GK area. 

But the backward motion only occurs AFTER the forward motion at impact....as proven here:

Edited 21 hours ago by David Von Pein