What Do the JFK Assassination Mock Trials Tells Us About the Official Lone Gunman Conclusion?

Lee Oswald was murdered before he had a chance to stand for trial on the claim that he was the lone assassin of President John F. Kennedy. In the absence of a trial, the Warren Commission was formed to issue an official investigation into the assassination.

The Warren Commission acted as the judge, prosecutor and jury. Chief Justice Earl Warren Mr. Warren adopted policies that facilitated the manufacturing of a historic record based on flawed and unreliable evidence along with junk science to serve the needs to create a political truth. He allowed his commission to conduct its investigations without being bound by the rules of evidence which are designed to ensure that only reliable evidence is introduced into evidence. As a result, Warren Report was based on a variety of evidence and testimony that would likely have been inadmissible in court because of its unreliability or would have resulted in an instruction from the judge to a jury to consider the questions about the validity of the evidence in determining how much weight to give the evidence.

Mr. Warren insisted that preliminary interviews of witnesses were not to be recorded which prevented creating a record of testimony that might not align with the official verdict. If a witness provided an account in the preliminary investigation that differed from the official verdict, it would be ignored without a transcript or memo of the conflicting testimony created. Those witnesses who were deposed were frequently intimidated. Staff attorney often went off the record to pressure the witness to change its answer. On other occasions, questions were not asked to avoid producing adverse testimony. Often times, inconvenient answers were ignored or not pursued. Many witnesses were subject to a perjury trap where the FBI created a 302 report that differed from what the witness told the FBI agent and then when the witness complained their statement was inaccurate, they would be told that lying to a federal agent was a criminal offense.

Because no attorney represented the interests of the accused, government fact and expert witnesses were never subject to the crucible of cross-examination which has been called the greatest engine for the pursuit of truth since it represents a unique opportunity for a litigant to test the veracity and reliability of evidence in real-time, ensuring that a just and fair verdict is reached. Instead, the Warren Commission staff determined if evidence was persuasive, what inferences to draw from evidence and which conflicting testimony or evidence was credible.

The techniques used by the Warren Commission reflect the same tactics used by law enforcement officials that have led to over 1,000 people having their convictions expunged by the Innocence Project. The Warren Commission was one of the first uses of junk science

Since 1967, seven mock trials have been held by law schools or bar associations to try to answer the question if a jury would have convicted Lee Oswald. While mock trials do not replicate the exact conditions of a trial, they can provide insight into the strengths and weaknesses of the government’s case.

Thus, it is notable that of the 7 mock trials conducted over the last 60 years by different sets of lawyers with different lawyers and juries, only one returned a guilty verdict. Six of the verdicts have either not guilty verdicts or resulted in a hung jury.

Following is a summary of those mock trials.

1967 Yale Law School

This 1967 mock trial was held at Yale Law School before 500 spectators. Jacob D. Fuchsberg, a New York lawyer, served as the judge. Unfortunately, he barred a CBS television crew from filming the event. Therefore, the only reports available about this mock trial are a couple of short news clips and an article published in the April 1967 issue of the Yale Alumni Magazine.

Law students served as defense counsel and prosecutors. A law student portrayed Oswald and testified in his own defense. The Oswald defense team argued that there was reasonable doubt that Oswald was the actual assassin. The witnesses were principally law students and used the actual testimony that witnesses gave to the Warren Commission. The evidence included reproductions of photographs, bullet fragments, blood-stained clothing worn by the late President, and the alleged murder weapon.

The bulk of the prosecution's case centered on the testimony of Dr. James J. Humes, who had been in charge of the autopsy and prepared the autopsy report. Over the course of one-and-a-half hours of direct and cross-examination, “Dr. Humes” provided detailed testimony on his examination of the president’s body, the location of the wounds and if the wounds supported the single bullet theory. Pointing to tests conducted under the supervision of the FBI, Humes testified that a single bullet could have inflicted the throat wound of the President as well as the chest, wrist, and thigh injuries of Governor Connally.

On cross-examination, the defense tried to score points by having “Dr. Humes” admit he did

not have experience with gunshot wounds and that he had not performed any ballistics tests. The defense also relied on eyewitnesses to introduce evidence about the number and the origin of the shots.

Defense witnesses featured “Lee Bowers,” the railway switchman who claimed to see strangers milling around the wooden stockade on the grassy knoll and later said he saw a puff of smoke or flash of light in that area. Defense witness “Bonnie Ray Williams” testified he went up to the sixth floor of the depository at noon to eat lunch and did not see Oswald or anyone else on that floor. Other defense witnesses included “Governor Connally”, who maintained that he had been hit by a separate shot from President Kennedy, “Dr. Malcolm Perry”, who testified that he thought the throat wound was an entry wound, and “Ronald Simmons”, Chief of the Infantry Weapons Evaluation Branch of the Ballistics Research Laboratory of the Department of the Army, who tested the assassination rifle and discussed problems with the telescopic sight, bolt and trigger mechanism.

In its summation, the defense reviewed the doubts about the shots, the wounds, and Oswald. The defense closed with an acknowledgement that Oswald fled the assassination scene, concluding, "It is a heinous crime to gun down the President of the United States. It is a heinous crime to find an innocent man guilty."

The prosecution began its summation with the undelivered Dallas speech of President Kennedy about “not listening to nonsense," and urged the jury to ignore the nonsense of the defense theory. The prosecution then reviewed the “hard” evidence: the shells, bullet fragments, the bag in which Oswald allegedly carried the murder weapon. As the prosecutor talked, he dissembled the rifle to show that it could have been carried in the paper bag. As the last screws came apart, he held the rifle apart and held it aloft for a moment and then passed the scope, stock, and barrel to the jury for its examination.

A jury of 12 with two alternates comprised of volunteers from a North Haven Presbyterian Church listened to the seven hours of argument. It was 2 AM when the judge completed his charge to the jury on the two counts: first degree murder and assault with intent to kill the President. After approximately 75 minutes, the jury informed the judge that they were unable to agree on a verdict. Six jurors felt Oswald was guilty; three believed that, while he had taken part, there was reasonable doubt he had fired the fatal shot. Three thought there was reasonable doubt as to his participation in the crime at all.

1986: London

This is the mock trial many people recall. A four-day made-for-TV mock trial entitled "On Trial: Lee Harvey Oswald” was held in London in July, 1986. The Showtime cable network subsequently culled a condensed two-part, five and one-half hour program from this production in November, 1986. Former Los Angeles Deputy District Attorney Vincent Bugliosi served as prosecutor and Gerry Spence served as defense counsel. The jury consisted of 12 Dallas citizens who had been flown into London. Some of the actual witnesses associated with the JFK assassination and the shooting of officer J.D. Tippit testified, along with certain medical experts and some members of the HSCA.[1]

It is generally agreed by lawyers familiar with this mock trial that Spence was ill-prepared for this mock trial or at least was not as familiar with the facts of the case as Bugliosi, and tried to make up for his lack of preparation with the kind of courtroom theatrics he had used in civil cases. Bugliosi clearly outlawyered Spence and the jury returned a guilty verdict after 12 hours of deliberation, This remains the only mock trial to return a guilty verdict.

1992: ABA in San Francisco

In the wake of Oliver Stone’s JFK move, the American Bar association conducted a two-day mock trial at its annual Meeting in San Francisco in August 1992 titled the “Trial of the Century: The United States vs Lee Oswald.”3 Evidence was based on testimony derived from the Warren Commission Report and the Report of the House Select Committee on Assassinations. Actors portrayed the witnesses.[2] Evidence also involved computer animation and enhancement of the Zapruder film. To save costs, the firm Failure Analysis was engaged as an expert for both sides. To avoid any potential conflicts, Failure Analysis used to two teams of professionals.

The prosecution team was comprised of attorneys Jim Brosnahan, Joe Cotchett and John Keke. Representing the defense were Tom Barr, David Boies and Evan Chester. Two federal judges and a state court judge took turns presiding over the trial. 17 potential jurors were selected from a list of San Francisco area residents. They were paid for their participation and did not know the nature of the trial before they were asked to complete a questionnaire. Included were two questions: (1) How much they agreed with the statement that Lee Oswald assassinated President Kennedy and (2) How much did they agree he acted alone. The lawyers could strike a total of five jurors: three for the prosecution and two for the defense during voir dire. Court TV nationwide televised the entire proceeding.

A key witness for the prosecution was Dr. Martin Fackler, a ballistics expert. He testified that the bullet found at Parkland Hospital, the fragments recovered from the president's limousine and the three cartridges taken from the sixth floor of the Texas School Book Depository were forensically matched to the rifle allegedly used by Oswald to shoot the president. He also testified that the casings found near Patrolman Tippit's body came from Oswald's revolver. He then discussed how bullets move in the human body and explained the movement of the bullet that passed through President Kennedy and into Governor John Connally.

Another important prosecution witness was Dr. Robert Piziali of Failure Analysis. He testified about the computer reconstruction developed by his firm and how it demonstrated that the shots that hit President Kennedy came from the sixth floor of the Texas School Book Depository.

The defense team told the jury that while Kennedy's assassination has been the most investigated killing in history, every item of evidence ever assembled against Oswald is still open to doubt. A key defense witness was ballistics expert Roger McCarthy, the president of Failure Analysis, who said the shots that killed Kennedy could not have come from the sixth floor of The School Book Depository. Mr. McCarty’s testimony included an experiment he conducted with a plastic water jug. When he fired a full metal jacketed bullet into the plastic jug, it exited the opposite site of the plastic jug. However, when he fired frangible bullets into the plastic jug, the bullet particles did not exit the jug and he said they resembled the pattern of lead particles in the front of the JFK’s skull in the x-rays. He said this was consistent with a shot from the front. Dr. Cyril Wecht testified that the president's wounds had come from more than one gunman.

At the conclusion of the trial, the jury deliberated for 2 ½ hours, but after several ballots was unable to reach a verdict. Seven of the jurors voted to convict Oswald while five favored acquittal. The five jurors that were removed during voir dire constituted a surrogate or shadow jury. They sat through the trial and saw the same evidence as the jury. This group of dismissed jurors voted 3 to 2 for acquittal.

1992 A&E Mock Trial

Earlier that year, the jury in a mock trial by the Arts & Entertainment network found Oswald innocent. However, no information was available about this proceeding.

2013: Texas

Three mock trials were held in Texas in 2013 on the 50^th anniversary of the JFK assassination. One mock trial was organized by the State Bar of Texas, another by the Dallas Bar Association and the third by the Bench Bar Conference for the Eastern District of Texas. The case was prosecuted as a federal crime, even though killing a president was still a state crime in 1963.4

The Dallas event was held at the Old Criminal Courts Building. Toby Shook represented the defense in each of these proceedings. For the Dallas event, U.S. Attorney for the Northern District of Texas, Sarah Saldaña, served as the prosecutor and State District Judge Martin Hoffman presided.

The mock trials only lasted three hours each, so the attorneys were limited on the number of witnesses and evidence that could be used. Included in the evidence was: the Zapruder film, clips of Oswald speaking to the media, autopsy drawings, and a replica of the assassination rifle.

Because of the time constraints, Shook was limited to cross-examining the prosecution witnesses and was not allowed to put on witnesses to establish the various conspiracy theories. For example, when the prosecution offered that Oswald’s prints on boxes near the so-called sniper’s nest were evidence he was the assassin, Shook countered that Oswald’s job was to move boxes, so it would be natural for his prints to be there.

All three proceedings ended up in hung juries. About three-fourths of the 150 attendees who watched the trial in Dallas County’s Old Criminal Courts Building indicated by a show of hands that they did not believe the gunman acted alone.

2016: Michigan

The Macomb County Bar Foundation and the Society for Active Retirees organized two mock trials in the fall of 2016. The mock trials were two hours and less rigorous than the other mock trials. These mock trials assumed Lee Oswald’s guilt and the sole question to be determined by the attendees who served as a grand jury was whether they believed Oswald acted alone or as part of a conspiracy.

Both sides stipulated that the rifle found on the Sixth Floor was Lee Oswald’s rifle and that he had fired three shots that day. There was a single witness who was a local judge who had read numerous books on the assassination. Given the sparse evidence before them, it is not surprising that both audiences voted overwhelmingly that Oswald was the lone gunman.

2017: South Texas College of Law

In November 2017, the South Texas College of Law (STCL) in Houston hosted a two-day mock trial titled “State of Texas vs. Lee Harvey Oswald.” This mock trial used 21st -century technology and applied what has been learned from the Innocence Project and the 2009 National Academy of Science (NAS) report about forensic evidence to the JFK assassination.

Forensic evidence is used in criminal prosecutions to match a piece of evidence to a particular person or weapon. The NAS report1 determined that the absence of precise and objective national criteria and methodologies as well as peer-reviewed published studies coupled with the highly subjective nature of the forensic disciplines renders this type of evidence highly suspect, unreliable and extremely prone to manipulation. The forensic methods that were found to lack sufficient scientific basis included firearms/bullets, fingerprints, hair and fiber analysis and tool marks- the kind of evidence that was critical to the Warren Commission and the House Select Committee on Assassinations conclusions that Lee Oswald was the assassin of President Kennedy.

The presiding judge was the Honorable Jay T. Karahan, a sitting judge of the Harris County Criminal Court. Attorney Gus Pappas served as prosecutor. The defense team was comprised of Robert Tanenbaum, former counsel to the HSCA, California lawyer Bill and this writer.

Initially, the defense team planned to file evidentiary motions to exclude certain key pieces of evidence relied upon by the Warren Commission and the HSCA. The motions included excluding physical evidence collected from the sixth floor, the limo and the so-called magic bullet because of significant chain of custody issues. The defense also sought to exclude marina Oswald’s testimony based on the spousal privilege that was in effect in Texas in 1963 as well as the evidence collected from the Paine residence on November 22/23 on the grounds of an illegal search. The defense also planned to object to the autopsy report because the original was destroyed as well as the autopsy itself since it was performed in a manner contrary to Texas law and the Navy’s own protocols. However, because of time constraints, the participants agreed to suspend the rules of evidence so that all the government’s evidence could be admitted. The jury was instructed that questions about the reliability of the evidence could be used by the jury in determining how much weight in should give a particular piece of evidence. The participants agreed that there would not be any re-direct or closing arguments to allow the jury to have more time to deliberate.

In addition to the evidence in the historic record, this mock trial was unique because it featured eight expert witnesses in ballistics and forensic medicine testify. The prosecution offered expert Lucian C. Haag, former criminalist and technical director of the Phoenix Crime Laboratory, and president of Forensic Science Services Inc.. The defense witnesses included Cyril H. Wecht, MD; Gary Aguilar, MD; David W. Mantik, M.D., Ph.D.; Michael Chesser, M.D; Clifford Spiegelman, Ph.D., distinguished professor of statistics at Texas A&M University, and Donald B. Thomas, Ph.D.

The 11 person jury was selected by professional jury consultant so ensure that it was representative of the Houston jury pool.

The two-day mock trial was essentially two defense trials within one. After the prosecution finished its case in chief, Robert Tanenbaum focused on evidence establishing a second gunman. However, at the beginning of Day 2, which was to focus on the Lee Oswald, Mr. Tanenbaum announced in open court that he had nothing to do with the defense of Lee Oswald and stormed out of the courtroom. Bill Simpich and this writer then put on the actual defense of Lee Oswald. focusing exclusively on the weaknesses of the forensic evidence the government had relied on to build its case against Oswald (e.g., rifle, spent cartridges and paper bag found on the 6^th floor, the bullet fragments found in the limo, the green blanket, the “magic bullet found on the stretcher). The defense also presented exculpatory evidence in the form of a detailed timeline based on the testimony in the historic record showing there was credible testimony of Oswald being in places other than the sixth floor from 11:55 to 12:25. In other words, the defense showed there was only a six minute time period between 12:25 to 12:31 pm. for Oswald to go up to the 6th floor, build a snipers nest using 50 pound boxes, reassemble his rifle and then shoot the president all in six minutes.

The 11 jurors were asked to vote solely on the guilt of the defendant. There were no lesser charges to consider, such as conspiracy to commit murder. After deliberating for two hours, the jury returned a hung verdict with six voting in favor of conviction and five believing Lee Oswald was innocent . A poll of the jury revealed that a majority of the jury believed that President Kennedy was killed a as result of conspiracy.

It is interesting to learn that Mr. Tanenbaum is about to publish a book arguing that Lee Oswald did not assassinate President Kennedy. We are grateful that the evidence we introduced on day 2 of the mock trial helped to convince Tanenbaum that Oswald was indeed innocent.

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[1] The witnesses included Marion Baker, Eugene Boone, Charles Brehm, Johnny Brewer, Ted Callaway, Nelson Delgado, Buell Wesley Frazier, Vincent Guinn, James Hosty, Seth Kantor, Cecil Kirk, Edward Lopez, Monty Lutz, Bill Newman, Harold Norman, Paul O’Connor, Ruth Paine, Charles Petty, Lyndal Shaneyfelt, Tom Tilson, Cyril Wecht

[2] The prosecution witnesses were Marrion Baker, Domingo Benavides, Howard Brennan, Wesley Frazier, Helen Markham, Harold Norman, Marina Oswald and William Scoggins.