Prof. Bickel and the Warren Commission
SAUVAGE, LEO
PERSPECTIVES Prof. Bickel and the Warren Commission By Leo Sauvage After TWO years of blind adoration-probably unprecedented in a country where conformity is not physically enforced -American...
...Allow me, professor: What do you call "undeniable...
...2. Though the Report is contradictory and misleading about this, a check of Volume III of the Hearings, describing the modalities of the reconstruction, indicates that the stopwatches were left running for Baker until he reached the lunchroom, or even until Truly joined him there...
...the Report discreetly relegates the alleged "admission" to a single paragraph of six lines, without including it in its final summary...
...Bickel thinks it is more becoming for a professor of law, if not for a newspaperman, to accept the way the Warren Commission twisted the "incident" into a proof against the accused man-who in effect was convicted by Executive fiat without trial or defense...
...The most recent manifestation of this phenomenon is a long article by Alexander Bickel of Yale University in the October issue of Commentary...
...Bickel more or less admits that without them, or without Epstein at least, he would still be among those who received the Warren report "with rhapsodic relief...
...Obviously, unlike Mr...
...The whole story of the arrest, as presented by Dallas policeman McDonald, is utterly incoherent...
...Turning to me, Professor Bickel writes: "Mr...
...But in any event, since when is ownership of a weapon-even if it is unquestionably identified as a murder weapon, which was not the case here-sufficient proof of guilt...
...There is not a shred of proof that Oswald picked up a revolver at the rooming-house...
...What has contributed most to undermining my esteem for Professor Bickel, though, is the intolerably flippant way in which he deals with the fact that Oswald was seen by two witnesses in the second-floor lunchroom so soon after the shots were fired from the sixth floor...
...1. The Warren Report denies Oswald's affirmation-as quoted by his interrogators and repeated in the public statements of Dallas authorities-that he was holding a coke bottle when Baker saw him in the lunchroom...
...Bickel is satisfied that Baker, on the day of the assassination, "probably took longer than he did during the reconstruction...
...Bickel obviously attaches no importance whatsoever to the stunning revelation that one of the two reconstructions of the assassination staged by the Commission actually gave Oswald an alibi: It showed that if he had done the shooting from the sixth floor, he would have reached the lunchroom three seconds after Roy Truly and patrolman Baker...
...Baker, who was "180 to 200 feet" away when he heard the shots and saw "pigeons flutter upward" from the building, "revved that motorcycle up" and stopped in front of the building while people were still "falling and rolling around down there...
...The Warren Report explains that Oswald wanted to make up with his wife, who for several days had refused to talk to him on the phone...
...Well, Oswald was not caught red-handed with the revolver...
...And only after the publication of my Commentary article, already entitled "The Oswald Affair," did the Warren Commission feel moved to make the necessary verifications neglected by both the FBI and the Dallas police...
...Because of the infamous Dallas broadcasts and because the Warren Commission did its best not to dispel the misunderstanding, millions of Americans- including, one gathers, Professor Bickel-have been convinced that Oswald was alone in the building at the time of the assassination...
...Bickel says, "is no Sacco-Vanzetti, and no Dreyfus case...
...But why didn't the professor recall that rule to the members and lawyers of the Warren Commission, whose Report overflows with blatantly uncorroborated eyewitness testimony...
...It is amazing and appalling that a man like Alexander M. Bickel, confronted with a dilemma that should have been as obvious to him as it was to me, prefers to object to the tone of my reaction rather than demand an explanation from the Warren Commission...
...L.S...
...Before [Edward Jay] Epstein's book [Inquest, Viking, 1966] was published,' he writes, "virtually everyone who commented in print accepted the Commission's assurance that it was 'not necessary to any essential findings' to choose between the one-bullet and twobullet hypotheses.' I mention all this here, first, because it happens that I rejected the "Commission's assurance" in print in The New Leader of November 22, 1965 ("The Warren Commission's Case Against Oswald"), commenting that I found such an opinion "thoroughly stupefying...
...4. "The night before the assassination, Oswald made an unusual trip from Dallas to the [Paine] house...
...One could continue, but space limitations make it impossible to detail here all the other misstatements and misinterpretations Professor Bickel indulges in as he goes on peddling (sorry, but I am borrowing here from the professor's own vocabulary) Lee Harvey Oswald's guilt...
...And there is no legally acceptable proof that Oswald had the revolver in his possession at the time of his arrest...
...This is clearly contrary to any logic, for a policeman pursuing the assassin of the President of the United States does not walk...
...Naturally, Bickel also ignores the mystery surrounding the discovery of the bag (it was not mentioned- and apparently not seen-by the first policemen to enter the sixth floor, and there is no photograph showing the bag in the open space near the window where it was said to have been found...
...Yet Mr...
...3076, XXVI, 679), that when he saw Oswald in the lunchroom the man was "drinking a Coke...
...As to the "rifle and other clues left behind by Oswald" on that same sixth floor, Mr...
...This much about his movements after the assassination is undeniable...
...Since getting the bottle from the machine would have taken several seconds, the Commission has thus contributed that number of seconds to the 16-second margin of its reconstruction, separating Oswald from an alibi...
...More than anything else, I think, it was the remarkable silence of men of Bickel's stature that compounded "the failure of the Warren Report...
...The Report does not dare go beyond the word "probability," and Professor Bickel does not even seem to go that far...
...1118, where the staircase in the northwest corner is indicated as follows: "Patrolman Baker and Mr...
...But the disposition of the second floor, as shown in the diagram provided by the Report (Commission Exhibit No...
...Even interpreting Mr...
...In addition, many of the issues raised by Professor Bickel concern points raised by me in the article cited as well as in a companion piece ("Oswald's Case Against the Warren Commission,' NL, December 20, 1965), both of which were subsequently included in my book The Oswald Affair, published earlier this year by World...
...Bickel again literally, it could be noted that according to the manager of the Texas School Book Depository, Roy Truly, there was at least one unidentified "reporter" on the sixth floor after the assassination...
...Bickel would have us see it...
...The rifle was found in the opposite northwest corner...
...5. "He was seen carrying a long package...
...The garage was easily accessible...
...Bickel sneers, "Mr...
...The "whole bullet" (or "nearly whole" bullet, as the Report says) could therefore not have been one of those which hit the President unless it was an incontrovertible fact that it also hit the Governor...
...A calling card, for example, would be only about 3.5" x 2" So is it really "quite an exaggeration," professor...
...Is he aware that among the various contradictory statements made in the Report about prints, there is the admission that "one identifiable palmprint was not identified...
...Bickel still has no proof except the Commission's word that the rifle was left behind by Oswald...
...But let's look at that fantastic episode the way Bickel wishes to remember it, or to forget it...
...Question: When were the stopwatches stopped...
...Yet he denied everything, everything except the revolver, about which he volunteered the information, according to Captain Fritz, before the question was even raised...
...And in the framework delimited by the professor's choice of weapons, my irresponsibility is really worse than he indicates...
...It has become clear," he admits at the beginning of his article, "that far from having 'satisfied itself that the truth is known,' the Commission scarcely even evaluated 'all the facts and circumstances.'" He has even discovered, rather belatedly, that the Commission was "a particularly bad one...
...The clipboard, we were told, had been "hidden by book cartons in the northwest corner of the sixth floor at the west wall a few feet from where the rifle had been found...
...Contrary to a grossly misleading statement in the Report (which according to Edward Epstein, disturbed assistant Commission counsel Wesley J. Liebeler, but apparently did not impress Professor Bickel), nobody knows when the rifle disappeared from the garage of the Paine home in suburban Irving where Marina Oswald was staying...
...The question inevitably arises whether he could have been the man who fired the shots...
...3. The rest of the 16 seconds was obtained by a method which, without a satisfactory explanation, must be branded as plain cheating: Baker, from the moment he got off his motorcycle to the moment he reached the lunchroom, was made to walk...
...here is how I stated it in the book: "Either the sixth floor was never thoroughly searched, or evidence tending to incriminate Oswald was placed there after the search...
...Footprints, fingerprints, gloves, a handkerchief would certainly be easier to hide than a 12" x 9" board with a large metal clip on one end...
...Bickel's affirmation here is as irresponsibly gratuitous as was the Commission's...
...I recommend to the eminent professor of law the following statement made by L?©on Blum in his Souvenirs sur l'Affaire: "Nothing is less frequent, nor more difficult, than to prove innocence positively, and that is why, in any civilized system of justice, negative proof suffices...
...For example, far from having to "jostle through a crowd," as Mr...
...In fact, the bulk of his article is devoted to discrediting the Commission's critics, though Mr...
...for contrary to the interpretation he offers in the passage between brackets, the "evidence gone undetected" involved not only the Dallas police but the FBI as well...
...This comforting explanation was extracted from Baker by assistant Commission counsel David W. Belin, though it is flatly contradicted by Baker's spontaneous statements...
...Question: Why was Baker invited to walk and not run in this reconstruction, when during the actual event he was running...
...There is, of course, the reconstruction which has Oswald arriving at the lunchroom 16 seconds before Baker...
...Yes, but were they the bullets which hit the President...
...He mentioned several times and on different occasions that he was "running...
...That's where he was supposed to be, professor, or have you forgotten that Oswald was an employe of the Texas School Book Depository...
...When asked who was holding the revolver when he grabbed it during the scuffle in the movie house, he answered (Hearings VII, 20): "I don't know, sir...
...Professor Bickel finds "it is characteristic of Mr...
...7. "Oswald then left the building, went to his rooming-house to pick up a revolver...
...Bickel, however, belongs to the chapter of my book entitled "The Clipboard Mystery," and that begins as follows: "If one accepts the suggestive picture provided by the Report, and if one recalls the discovery of the clipboard 10 days afterward in the room 'searched' by Dallas police, deputy sheriffs, and Secret Service and FBI agents, it would not be an exaggeration to suppose...
...But to obtain this result, the Commission shortened Oswald's time and lengthened Baker's by arbitrarily altering the circumstances...
...I shall cite only three examples of how this was done, in the hope that Professor Bickel will either provide me with a valid justification for the Commission's action or support me in asking that the Commission provide one...
...He then "ran straight to the entrance" and followed Truly inside at such a speed that when Truly stopped at the swinging door leading to the main room on the ground floor, Baker "bumped into Truly's back...
...2. "There was ballistics evidence that the whole bullet found on the stretcher in Parkland Hospital and two fragments recovered from the limousine were fired out of this rifle...
...Yet this apparently has not inspired any modesty on the part of the professor...
...But he was faced-that is, almost caught red-handed-with the false identification papers in the name of Hidell found in his wallet, with the photographs showing him with the rifle, and with the order form for the rifle in his hand writing...
...In short, the "ballistics evidence" has no probative value, because tracing the bullet to the rifle is certainly not the same as tracing it to the victim...
...If Bickel is not, and if he continues to find the trip "unusual" despite the Commission's explanation, he should say why...
...That would be bad enough, since the length of the bag (as compared with the length of the rifle, even disassembled) is precisely what matters...
...I am innocent if I have invalidated, in front of the judge, the evidence brought forward by the accusation.' May I add respectfully -no, not respectfully-that it was a good thing for justice, for the reputation of France and for Alfred Dreyfus, that in Paris in 1898 there was an Emile Zola rather than an Alexander Bickel...
...6. "Oswald was in the building and was seen on the sixth floor before noon...
...But it has been established that no less than 20 persons could be identified as having been inside the building at that time, and there may be some unknowns too...
...3. "There is nothing to connect this rifle with anyone else...
...No innocent man stands convicted...
...The Commission affirms that "the" stretcher was Governor Connally's...
...Nor does Bickel's way of facing the truth include any questions about when, where and how the disassembled rifle was Teassembled in time and with sufficient precision for the assassination...
...as the Commission observed, anyone was able to walk out of the building at will for many minutes afterward...
...1118), made it impossible for a man coming down the stairs to reach the lunchroom without being seen crossing the second floor landing...
...and the absence of confirmation from any of the spectators at the Texas Theater has disturbed even the New York Times...
...I must say that the Commission, in this instance, appears much less at ease than Professor Bickel...
...This means that Baker would have to have seen Oswald even before he was able to enter the lunchroom, or at the moment Baker reached the second floor landing- and the stopwatches should have been stopped at that moment...
...1. "The Commission established that Oswald owned the rifle that was found near the sixth floor window at the southeast corner of the Texas School Book Depository Building," Bickel says...
...The man who is supposed to have taken the revolver from Oswald is Dallas detective Bob Carroll...
...To the reader who does not know The Oswald Affair, it must appear that Professor Bickel has delivered a telling, if not final blow: I am a man given to wild exaggerations, utterly irresponsible...
...Sauvage's manner of argument that he wants the Commission to have proved why Oswald could have admitted owning the revolver, while steadfastly denying ownership of the rifle...
...I first raised the matter of Oswald's possible alibi in March 1964, in the same magazine where Professor Bickel now scornfully dismisses it...
...Sauvage remarks that 'it would not be an exaggeration to suppose that among the evidence gone undetected [by the Dallas police during their, examination of the sixth floor of the Texas School Book Depository Building] were the footprints, the fingerprints, the gloves, the handkerchief, the calling card of another suspect-or even this other suspect himself, in person.' But an exaggeration it would be, and quite an exaggeration, for the Dallas police did find the rifle and other clues left behind by Oswald.' (The passage in brackets is Bickel's...
...In fact, it was contrary to their description in every aspect, except color, which does not mean much because this brownish color is common to most types of wrapping paper and paper bags used everywhere in the world...
...I said this in my book, but Professor Bickel chose to ignore it...
...I just saw the pistol pointing at me and I grabbed it and jerked it away from whoever had it and that's all...
...He startled Truly by asking: "What about this fellow Oswald...
...And what about "this other suspect himself, in person...
...I am satisfied with that explanation...
...This," Mr...
...Since the Report establishes that Marina couldn't tell whether or not the rifle was inside its blanket during the weeks prior to the assassination, it could have been taken by anybody during that time...
...Like the Warren Commission, Bickel dismisses the only two existing witnesses to this because their testimony does not fit his conclusion...
...Yet he maintains that disagreeing with the Commission's conclusions "demands an increasingly fierce resistance to reality," then, practically in the same breath he confirms that his personal conviction of Oswald's guilt, which is what he calls "reality," has not been supported by the Warren Commission "beyond a reasonable doubt...
...Sauvage tries to turn this incident into an alibi for Oswald.' Mr...
...Finally, it is contrary to what the Warren Report says in Commission Exhibit No...
...Question: Why is it that on September 23, 1964, four days before publication of the Report, patrolman Baker said in a hand-written statement to FBI agent Richard I. Burnett, before crossing it out (see Commission Exhibit No...
...Bickel and the Warren Commission By Leo Sauvage After TWO years of blind adoration-probably unprecedented in a country where conformity is not physically enforced -American intellectuals are now discovering that something was wrong with the Warren Commission Report, and thus with the Commission itself...
...It is called "The Failure of the Warren Report," and one of its purposes seems to be to justify the professor's long silence...
...Having thus disposed of the "Clipboard Mystery," Professor Bickel wonders "why an otherwise responsible newspaperman would wish to go to such lengths in order to avoid facing up to so much of the truth as we can be fairly confident we know...
...Well, I wonder how an otherwise responsible-and eminent-professor of law can feel "fairly confident" that he knows any part of the truth when his examples of that truth show he knows practically nothing...
...In addition, though, Bickel's statement is untrue: As the witnesses saw it, the bag certainly did not look like a grocery bag, nor did they notice any tape...
...The statement isolated by Mr...
...When arrested, he had the revolver in his possession...
...The professor, of course, has the answer: "Well, he was caught redhanded with the revolver...
...But he tries to minimize the contradiction by stating that the bag Oswald was supposed to have been carrying met "the witnesses' description, except for length...
...Truly ran up these stairs from 1-st floor...
...Unfortunately, Professor Bickel is too busy tackling the critics...
...The dilemma is very simple...
...Bickel, the Commission did not consider the "admission" a major element of "so much of the truth as we can be fairly confident we know...
...Since he does not even mention it, Mr...
...Well, Oswald lies convicted, and how does Professor Bickel know he is not innocent...
...In criticizing Epstein because he "makes something" of the testimony rejected by the Commission, Alexander M. Bickel musters all his authority as Chancellor Kent Professor of Law and Legal History to lecture the delinquent Harvard student: "Uncorroborated eyewitness testimony is unreliable even as to general impressions received at close range, and the more so as to detail observed at a distance...
...At this point one might have expected the Chancellor Kent Professor of Law and Legal History at Yale to at least remark in passing on the validity of "admissions" made by-or rather attributed to- a suspect not only in the absence of a lawyer but without any record of the exact words...
...It is also contrary to what Baker himself said about his movements on the day of the assassination...
...This is a first wisdom in the investigation of crime...
...Indeed it is...
Vol. 49 • November 1966 • No. 22
