18
The Trial of Clay Shaw
YOU MAY REMEMBER Ernest Hemingway’s novel The Old Man and the Sea. Santiago, the old fisherman, managed to catch a great fish, a monster fish, so huge that he had to tie it alongside the boat to bring it back in. By the time Santiago reached shore, the fish long since had been picked apart by sharks. Nothing remained but its skeleton.
Looking back, I can see that this is pretty much the way it turned out when we finally got Clay Shaw to trial in Criminal District Court. It had been a long, tedious, and frustrating uphill fight getting even that far. Our office had been infiltrated by the federal government, and Bill Boxley had stolen many of our files. As if that were not enough, a week or two before the trial began Lou Ivon learned that the young Englishman from Oxford who was in charge of our archives had given copies of many of our files to the defense. Almost as important, some of our key witnesses—e.g., David Ferrie, Gordon Novel, Sandra Moffett—had died or been scared off or moved from New Orleans with no chance of my extraditing them.
Before the trial, we had to make decisions about which witnesses not to use. A prosecutor cannot simply put witnesses on the stand because they happen to be available and because their testimony, under direct examination, supports the prosecutor’s case. He or she must also consider whether one of these good witnesses will blow the case out the window on cross-examination.
For example, there was Richard Case Nagell. He arrived shortly before the trial, willing to testify against Shaw. I met him at the New Orleans Athletic Club and had a long session with him. He was as intense as he had been when I last talked to him. He was as accurate and precise in his recollection of details. He felt as strongly as ever about J. Edgar Hoover’s silence after his early letter of warning about the operation to assassinate President Kennedy.
However, he was also as inflexible as ever about identifying the intelligence agency with which he had been associated—and might still be associated. I understood his concern about the non-disclosure agreement which he apparently had signed with his parent agency. But it was all too clear to me what a field day the defense lawyers would have when they discovered on cross-examination that he would not disclose his affiliation. In short order they would be coming at him just as the sharks had come at Santiago’s fish. By the time they finished with Nagell, the jury would have been left with the impression of a crackpot. One such incident, one such discrediting, is all it takes to undo an entire case. I decided that with Nagell we could not take that risk.
Then there was Julia Ann Mercer, possibly the most important witness we encountered during our investigation. An hour before the assassination she had seen Jack Ruby unload one of the riflemen at the grassy knoll in front of where Kennedy later would be shot. What Mercer had seen virtually added up to a prima facie case of conspiracy. However, her testimony would be peripheral to our case against Clay Shaw, who was only a small part of the overall conspiracy. Considering the number of witnesses who had been murdered or otherwise disposed of by “accidents,” I decided that we could not needlessly endanger her life. For the same reason, I continued not to make available to the press or the federal government her married name and her residence.
As for the witnesses we decided to use, Jim Alcock, whom I had assigned to be the chief prosecutor, and the rest of the special team arranged the order of their appearance and how to handle them. One witness, an accountant from New York named Charles Spiesel, came to us very late in our investigation and presented us with a dilemma. He claimed to have met Ferrie and Shaw on a trip to New Orleans and heard them discussing the possible assassination of the President. Alcock brought me his statement and asked what I thought about using him. By this time I had become quite suspicious because of all the tricks played on us. While I could find nothing specifically wrong with the statement, I told Alcock I found it simply too pat. But Alcock decided he wanted to call Spiesel, and since I did not have time to interview the witness myself, I agreed. It was a decision we would soon come to regret.
On January 29, 1969, the case of State of Louisiana versus Clay Shaw finally came to trial. As we walked into the majestic courtroom that morning, I put my hand on one of the massive white oak pews. I felt a great sense of nostalgia. This was the same room in which I had tried my first case as an assistant prosecutor approximately 15 years earlier.
Just as it had been during the preliminary hearing, the courtroom once again was a circus and, if possible, even more crowded. After having made our way through the horde of reporters at the entrance, we had to forge our way through even more tightly packed bodies to reach the prosecution table. The crowd was noisy to the point of unruliness. Suddenly there was a hush. Everyone craned their necks to see Clay Shaw and his attorneys entering the court. Shaw, tall and impeccably dressed, naturally caught the eye. He was a dark man, his complexion almost olive in color. As he towered above his defense counsel, his high cheekbones loomed larger than ever.
The defense group at the opposite side of the room hardly had settled into their chairs when the gavel started pounding. As the crowd quieted, Judge Edward Aloysius Haggerty swept into the courtroom in his black robe and took the bench. A stocky, red-faced man with alert blue eyes under his bushy eyebrows, Haggerty had been born and bred in the heart of the Irish Channel of New Orleans and still lived there. I knew him well from my years in the great building.
The judge began by addressing a matter of enormous interest to the local spectators. Contrary to all custom, this major trial had been unthinkingly scheduled by the clerk for the midst of the Mardi Gras season. Apparently a major concern of Haggerty’s was that the jury not have to miss all the fun, particularly the parades. The Rex parade, featuring the king of Mardi Gras, was the most important and often the most beautiful. Rex invariably was a prominent New Orleanian whose name was never revealed until the morning of the parade, when a photograph of him and his queen would appear on the front page of the Times-Picayune. The “truck parade” of the Elks Crew, which traditionally followed Rex, was probably the most enjoyable of all the parades. Made up of a hundred trucks or more, each carrying a movable day-long Mardi Gras party, it was always a wild, imaginative, and unpredictable sight to behold.
Judge Haggerty proudly announced that he had made arrangements for the jury to be able to watch not only the Rex parade but the “truck parade” of the Elks Crew as well from the balcony of a residence on St. Charles Avenue. This important local business taken care of, the trial could now get under way.
I left the selection of the jury to Jim Alcock and Assistant D.A. Alvin Oser while I went back to the office and concentrated on persuading reluctant witnesses to leave Dallas and even more distant cities for the trial.
By the time the jury was picked, January had become February and I joined Alcock and Oser in the courtroom. Every now and then, you could hear the sounds of Mardi Gras drifting up from revelers cruising by on Tulane Avenue.
After assuring himself that each side was ready, Judge Haggerty nodded his head in my direction, indicating that I should commence the prosecution’s opening statement. I walked over to the jury and, slowly pacing back and forth in front of them, explained what our case was about. I told them what the conspiracy law said and what evidence we would present to prove that Clay Shaw had violated it. Since fancy dramatics in the courtroom had never been my way, my voice was low-key, devoid of histrionics.
When I was through, F. Irvin Dymond, one of the best trial lawyers in New Orleans, made the opening statement for the defense. I had opposed Dymond in court many times. He had a way of leaning forward as he addressed the jurors, standing with his feet widely separated and his shoulders slightly hunched, his hands gesturing to drive home a point. He rarely moved from this firm posture. Dymond’s style, though unconscious, was certainly effective, emphasizing to the jurors his great intensity and concern.
Following the opening statements, we called as our first witnesses the citizens of the small town of Clinton, Louisiana, who had seen Lee Oswald there in the company of Clay Shaw and David Ferrie two months before the assassination. (See Chapter 8.) Because Andrew Sciambra had located the Clinton witnesses for us and knew that aspect of the case better than anyone else, I sent him in to handle their questioning. His powerful body, the result of years of boxing at L.S.U., was hardly hidden by his business suit. But he had a soft way of questioning, and he had established an excellent rapport with the witnesses from Clinton—conservative whites and liberal blacks alike.
Reeves Morgan, a former state legislator, testified that after the assassination he notified the F.B.I. of Oswald’s presence in Clinton. Morgan said that the special agent thanked him but told him that the F.B.I. already knew about Oswald’s visit to the Clinton area. He heard nothing further from the Bureau.
John Manchester, the Clinton town marshal, testified that he “checked out” all strange cars visiting Clinton during the voter registration drive, including the big black car parked near the office entrance of the voting registrar. “I walked over and talked to the man behind the wheel of the car,” said Manchester. “He was a big man, gray hair, ruddy complexion. An easy-talking man, he said he was a representative of the International Trade Mart in New Orleans.”
Manchester pointed to Clay Shaw as the man he had questioned. Shaw gazed back at him impassively. As Sciambra had learned in Clinton, Manchester contacted the state police and confirmed that the limousine was the property of the International Trade Mart in New Orleans.
Responding to Sciambra’s questioning, the Clinton witnesses not only pointed to Shaw as the man who had been sitting at the wheel of the black limousine but identified photographs of David Ferrie as the man who had been sitting next to him. Everyone remembered the anomalous scene of Lee Oswald, who had come to Clinton with them, standing in a long line of black voting applicants. As virtually the only white man waiting, and a stranger to boot, he was unforgettable.
During the testimony, I glanced over at the defendant and his staff of attorneys. Shaw was as imperious as ever, his cigarette tilted upward as he always held it, the smoke spiraling toward the ceiling.[69] His nobility of manner, every gesture courtly, made me think that this must have been the way Louis XVI had been at his trial. He seemed detached, even slightly bored, by the mundane proceedings around him.
Next to him sat his chief counsel, Irvin Dymond. Like Shaw, he also smoked cigarettes incessantly, his eyes narrowing down to slits each time he inhaled. Also present at the defense table were Edward Wegmann and his brother, William, who handled legal matters involving Shaw’s property interests. Edward, the older brother, seldom smiled but was constantly making notes on a yellow legal pad. William, the more animated of the two, frequently conversed with Dymond.
Another apparent member of Shaw’s defense team was an attorney named Richard Matthews. He was not a counsel of record and was not at the defense table. But every day he sat in the first row of spectators directly behind Shaw and from time to time would approach the defendant. There would be a long whispered exchange between them while Matthews crouched alongside Shaw’s chair. This phenomenon, which I had never seen before in a courtroom, continued throughout the trial.
I knew Matthews from years earlier, before he moved from Louisiana to Japan. Back then, while he was closing up his office, I asked him how he expected to practice law in Japan. His response sounded to me like double-talk, and I wondered at the time what he would really be doing in the Far East. Now I suddenly found myself looking at him for the first time since his departure. It seemed odd that he was abruptly here in the middle of this trial, whether officially or unofficially, acting as one of Shaw’s primary advisers.
Seeing Matthews in this context cast a new light on his mysterious move to Japan. I had no evidence, but my instincts told me now that the man had been working for the Central Intelligence Agency. His strange appearance at this trial led me to conclude that he was still working for it. Somebody on Shaw’s side had to be representing the interests of the intelligence community.
Although Matthews disappeared immediately after the trial and I was never able to link him directly with the Agency, years later my assumption that the C.I.A. had been aiding Shaw’s defense was proved true. At the time of the New Orleans investigation into President Kennedy’s assassination, Victor Marchetti had been a high-ranking staff employee at C.I.A. headquarters. In an article published in True magazine in 1975, Marchetti referred to the Agency’s concern during the Shaw trial:
I used to attend, among other things, the Director’s morning meeting, his morning staff meeting. This was Richard Helms at the time and he held a meeting every morning at 9, which was attended by 12 or 14 of his leading Deputies plus 3 or 4 staffers—the executive assistants to the number one, two and three men in the Agency and also the Press Officer. I often used to take the minutes of this meeting … which are a joke because things would be left out or written in a vague fashion so they were meaningless. But during the Clay Shaw trial I remember the Director on several occasions asking questions like, you know, “Are we giving them all the help they need?” I didn’t know who they or them were. I knew they didn’t like Garrison because there were a lot of snotty remarks passed about him. They would talk in half sentences like “is everything going all right down there … yeah … but talk with me about it after the meeting” or “we’ll pick this up later in my office.” So after several of these over a week or two I began to ask myself what’s going on, what’s the big concern. I began to ask around … and to one of the other people who attended the meeting … at the time I said, “What’s the concern about this trial and this guy Shaw?”
I was then told, “Well … Shaw, a long time ago, had been a contact of the Agency … He was in the export–import business … he knew people coming and going from certain areas—the Domestic Contact Service—he used to deal with them … and it’s been cut off a long time ago” … and then I was told “well of course the Agency doesn’t want this to come out now because Garrison will distort it, the public would misconstrue it.”[70]
Of course, at the time we had no proof of Shaw’s connections to the Agency nor did we know the extent of the Agency’s “help” for him. We proceeded at the trial as if we had a fair chance for a conviction.
In order to show the relationship between Shaw and Oswald, we called Vernon Bundy to the stand. Bundy, it may be recalled, had testified in the preliminary hearing that he had observed Lee Oswald and Clay Shaw meeting together out on the seawall along Lake Pontchartrain. (See Chapter 12.) A round-faced, placid black man in his twenties, he was a part-time presser for Avondale Cleaners. Very much at ease and in control of himself, Bundy repeated in greater detail the story he had told at the hearing: how he had been giving himself a heroin injection when he saw Oswald and Shaw together and overheard their conversation; how Shaw gave money to Oswald; how Oswald placed it in his pocket as one of his yellow circulars supporting Castro fell to the ground; how Bundy used that paper as wrapping for his heroin kit.
This time, however, Bundy added a piece of unexpected drama. Without any warning, he asked the judge to allow him to demonstrate how he knew it was Clay Shaw who was at the lakefront.
“Would you have the gentleman there go to the back of the courtroom?” he asked.
The judge, after a surprised moment of hesitation, nodded his assent. Shaw complied, with bailiffs on each side of him.
Bundy stepped down from the witness chair, then turned Shaw’s chair around and sat in it sideways, looking toward the entrance of the court where Shaw was. “Would the gentleman approach me?” asked Bundy. Shaw and the bailiffs moved forward.
“Here I am on top of the seawall with my cooker,” said Bundy. Shaw, looking irritated and puzzled, walked down the center aisle of the courtroom.
He watched the way Shaw’s foot twisted when he walked. This is how “I identified this man the next time I saw him,” he said.
Everyone in the courtroom was able to observe that the tall defendant had a slight limp—the result, he later explained, of a back injury received in the Army when lifting a hospital cot.
Afterward, it was plain that courtroom attaches and jurors alike had been impressed with Vernon Bundy’s testimony. It certainly was the first time I ever saw a witness take over the courtroom during a trial. I should add that until Bundy told me what he had seen when Shaw met Lee Oswald on the lakefront, I had no idea that Shaw walked with an almost imperceptible limp.
By now we had established the relationship among Shaw, Oswald, and Ferrie. And we had established that Shaw gave money to Oswald in a clandestine setting. We should have known that things were going too well.
The bomb that shattered our case exploded quickly enough. His name was Charles Spiesel. The accountant from New York whom we had belatedly added to our witness list took the stand next. He said that on a trip to New Orleans he met David Ferrie at Lafitte’s Blacksmith Shop in the French Quarter. Later they joined Clay Shaw in a building Spiesel recalled as being at “Dauphine and Esplanade,” which is approximately where Shaw’s residence was located. After everyone relaxed and had a number of drinks, Spiesel said Ferrie and Shaw began discussing the possible assassination of John Kennedy. Although Spiesel was surprised when the subject first arose, everyone had been drinking heavily so the indiscretion of the conversation was understandable to him. He recalled the exchange of comments between Shaw and Ferrie in great detail, each explaining why Kennedy should be eliminated and how it should be done.
On cross-examination, the chief defense counsel uncannily seemed to know just what questions to ask Spiesel. First, Dymond asked if Spiesel had ever publicly complained about “hypnosis and psychological warfare” being used on him. Spiesel replied that he indeed had been hypnotized in New York and New Jersey, and during several visits to New Orleans, in the period between 1948 and 1954.
Asked who hypnotized him, Spiesel said he did not always know. He said he could tell that hypnosis was being tried “when someone tries to get your attention—catch your eye. That’s a clue right off.”
Dymond then asked him what happened under hypnosis. Spiesel replied: “They plant certain thoughts in your mind and you are given the illusion that they are true.” He added that he had become “rather an expert” at knowing when people were trying to hypnotize him.
Under further cross-examination, Dymond brought out Spiesel’s belief that the New York City police had hypnotized him, tortured him mentally, and forced him to give up his practice as an accountant.
“Have you had trouble recently with a communist conspiracy,” Dymond asked, “people following you, and tapping your phones?”
“Well,” replied Spiesel hesitantly, “not particularly recently.”
Then Dymond zeroed in for the kill. Was it not a fact, he asked, that when Spiesel’s daughter left New York to go to school at Louisiana State University he customarily fingerprinted her? Spiesel replied in the affirmative.
Dymond then asked if it were not also a fact that he customarily fingerprinted his daughter again when she returned at the end of the semester. Again, the witness acknowledged that this was true.
Dymond then asked him why he fingerprinted her. Spiesel explained that he did this, in effect, to make sure that the daughter who was returning from L.S.U. was the same one he had sent there.
For one very long moment, while I am sure that my face revealed no concern, I was swept by a feeling of nausea. I realized that the clandestine operation of the opposition was so cynical, so sophisticated, and, at the same time, so subtle, that destroying an old-fashioned state jury trial was very much like shooting a fish in a barrel with a shotgun.
Our only hope now was that our subsequent witnesses could drown out the memory of Spiesel. So next we called Perry Russo, perhaps our most important witness. Russo largely repeated the testimony he had given in the preliminary hearing (see Chapter 12), but at the trial he was on the stand much longer—two days, most of which were devoted to cross-examination. To the very end, Russo remained unshaken in his dear-minded insistence that he had seen Clay Shaw and David Ferrie meeting with the young man named “Leon Oswald” and that they had discussed in detail the assassination of the President.
In the course of Dymond’s cross-examination, issues raised by journalist James Phelan came up. (See Chapter 13.) Phelan had written and later would testify for the defense that there were inconsistencies between the two memoranda that Andrew Sciambra had written based on interviews with Russo, and Russo’s actual testimony at the preliminary hearing. Russo responded that neither of the memoranda contained all the details he thought could have been added, but he had not written the respective notes and it had not been his responsibility to correct them. He went on to say that what he thought was important was what he had just testified to under oath in front of the jury. Then, looking directly at Clay Shaw, he said: “I am absolutely sure the defendant is the man who was there,” referring to the meeting about the assassination which had taken place at Ferrie’s apartment.
Phelan had built a brief career out of his contention that Russo had mistakenly identified Clay Shaw. Now, with his obviously honest and forceful testimony, the young witness had instantly disposed of Phelan’s efforts. So irrelevant had Phelan become, in fact, that later when the defense called him as a witness we did not even send in Andrew Sciambra, who was champing at the bit, to cross-examine him.
To establish that the President had to have been shot by more than one gunman and that there had to have been a conspiracy, we called a number of witnesses from Dallas who saw and heard shooting from in front of the motorcade. William E. Newman, a young design engineer from Dallas, described how he had been only 10 to 15 feet away from the limousine when he saw the first shot hit the President in the front of the head. Kennedy fell backwards violently. The shots, Newman recalled, were coming from the grassy knoll right behind where he was standing. His testimony was corroborated by Frances Newman, his wife. And by James Simmons, an employee of the Union Terminal Railway. And by Mrs. Mary Moorman, a housewife from Dallas, and Mrs. Philip Willis.
Richard Randolph Carr, confined to a wheelchair because of a construction accident, nonetheless traveled from Dallas and testified that he had heard shots from the grassy knoll and had seen a furrow caused by a bullet that missed the President’s limousine, cutting a path eastward through the grass in Dealey Plaza. Carr then ran down the outside stairway of the building he was working on and happened to see four men running out of the Book Depository. One walked away, but the other three climbed into a Nash Rambler parked facing north on Houston Street and drove off unimpeded against the traffic. When he told his story to the F.B.I., Carr testified, the agents told him to keep his mouth shut.
Deputy Sheriff Roger Craig corroborated some of Carr’s testimony, repeating under oath that he had seen a Nash Rambler driven by a Latin man pull up on Elm Street in front of the Depository and pick up a young man, whom he later took to be Lee Oswald, before speeding away. (See Chapter 7.)
The expert witness we called to demystify the Warren Commission’s official explanation of the President’s bullet wounds was Dr. John Nichols, an associate professor of pathology at the University of Kansas, who had studied the Zapruder film, slides made from the film, and other photographs of the assassination. The court qualified Dr. Nichols as an expert on pathology and forensic pathology.
To help the jury understand Dr. Nichols’s testimony, we had subpoenaed the Zapruder film and twenty-one 8" × 10" color pictures from Life magazine. This was the first time in more than five years that the Zapruder film had truly been made public.[71] To be sure, the F.B.I. had given a copy of it to the Warren Commission, but two critical frames had been mysteriously reversed to create the false impression that a rifle shot to Kennedy’s head had been fired from behind.[72] The National Archives also had a copy for those citizens able to stop their work and make their way to the nation’s capital. However, there had been no real public viewing of the Zapruder film. It had been kept in a vault in the Time-Life Building on the Avenue of the Americas in New York City all these years.
Now Al Oser, who was conducting the questioning of Dr. Nichols, asked the court for permission to show the Zapruder film. While the assistant district attorneys were setting up the projector and screen, spectators moved en masse from one side of the courtroom to the other so that they could participate in the viewing of the “first run” of the moving picture of the President’s death. The film, clearly illustrating in horrifying detail the fatal shot striking President Kennedy, was shown again and again until every member of the jury understood what had happened. Then Oser asked Dr. Nichols to state as an expert from what direction that shot had come.
“Having viewed these slides and pictures and the Zapruder film,” Dr. Nichols said, “I find that it is compatible with the gunshot having been delivered from the front.”
Dr. Nichols further testified that the President had been shot not only from the front but also from behind. In lay terms, Dr. Nichols described how the bullets from behind necessarily had entered Kennedy’s body from divergent angles, meaning that the riflemen had to be firing from two different positions.
We hoped that Dr. Nichols’s testimony would clarify for the jury once and for all the utter impossibility of the Warren Commission’s official story that seven entry and exit wounds in President Kennedy and Texas Governor John Connally were caused by one bullet. The government adopted this official posture, which came to be known as “the magic bullet” theory, after the Zapruder film established a maximum time frame for the shooting of 5.6 seconds. In such a short time a lone assassin could have fired only three bullets. Since the government had already concluded that one bullet missed completely (with a fragment striking onlooker James Teague in the cheek) and a second bullet hit the President in the head and shattered his skull, that left a third “magic” bullet, Commission exhibit 399, to account for the remaining seven wounds in Kennedy and Connally.
According to the government’s account, the seven wounds were inflicted as follows: The bullet entered the President’s back or neck (1) headed downward at an angle of about 17 degrees. It then moved upward and departed from Kennedy’s body out of the front of his neck (2). It continued into Connally’s body at the rear of his right armpit (3). Inasmuch as Governor Connally had been sitting directly in front of President Kennedy, it must be assumed that the bullet somehow moved over to the right far enough to head leftward into Connally. Now the bullet headed downward at an angle of 27 degrees, shattering Connally’s fifth rib and departing from the right side of his chest (4). The bullet continued downward and then entered Connally’s right wrist (5), shattering the radius bone. After coming out of the other side of the governor’s right wrist (6), it entered his left thigh (7), from which it later fell out.
According to the official story, this bullet was later found in almost perfect condition in a corridor of Parkland Hospital, apparently having fallen from a cot.[73] The bullet was nearly flawless, deformed slightly only at its base. Curiously, more fragments were found in Governor Connally’s wrist than were found to be missing from bullet No. 399.
We did not ask Dr. Nichols to get into a lot of technical jargon in disposing of the magic bullet theory. We just wanted him to point out to the jurors that such an explanation, which was central to the government’s lone assassin scenario, defied the laws of both physics and common sense. Once the jury accepted that the magic bullet could not create all seven different wounds in President Kennedy and Governor Connally, our strategy went, it would then have to conclude that there was a second rifleman—and thus a conspiracy.
It was clear to me from the jurors’ reactions that our presentation of the evidence of a conspiracy in Dallas had made a deep impression. I did not know if we could ever truly recover from the Spiesel cross-examination, but now it remained for us to link Shaw to the Dallas conspiracy.
The linkage depended largely on the fact that the roly-poly hippie attorney Dean Andrews had admitted receiving a call from “Clay Bertrand” about representing Lee Oswald in Dallas. The pieces of the puzzle would fall into place in the jurors’ minds, we hoped, if we could rest our case with persuasive evidence that “Clay Bertrand” was actually Clay Shaw. And so we called as our next witness Mrs. Jesse Parker, a hostess at the V.I.P. room of the New Orleans International Airport. She testified that in December 1966 she saw Clay Shaw sign the room’s guest register as “Clay Bertrand.” After describing the incident fully, Parker located the signature in the register and then pointed to Shaw as the man who signed it.
We then called Mrs. Elizabeth McCarthy, a handwriting expert from Boston, who had studied the V.I.P. room signature of “Clay Bertrand.” I asked her if she had reached a conclusion concerning that signature. “It is my opinion,” she replied, “that it is highly probable that Clay Shaw signed the signature.”
To provide a dramatic finale, we had scheduled as our final witness New Orleans Police Officer Aloysius Habighorst. He was the police desk officer who booked Clay Shaw after we arrested him (see Chapter 11). It will be recalled that Habighorst routinely asked Shaw if he had any alias, and Shaw, apparently greatly shaken by his arrest, replied, “Clay Bertrand.” This, of course, was one of the most important pieces of evidence in our case because it came from Shaw himself and directly linked him with the call to Dean Andrews about representing Lee Oswald in Dallas.
We instructed the court attaché to call Officer Habighorst. But before Habighorst could take the stand, Judge Haggerty suddenly ordered the jury removed from the court. Then he informed Jim Alcock, who was questioning at the time, that he was going to rule inadmissible the fingerprint card, signed by Shaw, on which “Clay Bertrand” had been typed in the space designated for “alias.” Haggerty went on to say that he would not believe whatever Officer Habighorst said, anyway.
Alcock, angered and flushed, leaped to his feet and protested the judge’s ruling and his incredible comment about Habighorst. Haggerty replied that Shaw had been deprived of a constitutional right at the central police lockup when he was asked—without a lawyer being present—whether or not he had an alias.
From time immemorial, this had been standard booking procedure at the central lockup. We knew that there was no constitutional requirement that an attorney be present for routine questions at booking. That was not the law then, and it is not the law even today. But Judge Haggerty was changing the law before our eyes.
Alcock announced in frustration that he would ask for writs from the Louisiana Supreme Court, but I knew that was a futile gesture. In those days appellate courts in Louisiana never granted such writs in an ongoing trial.
On that solemn note the presentation of the state’s case against Clay Shaw essentially ended. As we walked out of the courtroom for the break before the defense presented its case, I glanced out through the huge windows, which were open for a change. A feeling of sadness passed over me. I was envisioning our case, like a giant bird with its great wings flapping slowly, sailing through the open windows off into the blue.
Whenever a white-collar defendant goes on trial, the defense attorneys almost invariably begin their presentation with witnesses to show their client’s superb reputation in the community. The idea is to establish in the jurors’ minds that, whether out of venality or haplessness, the prosecution has made a terrible mistake and is trying the wrong man.
Thus it came as no surprise that Shaw’s attorneys led off with a series of witnesses to reaffirm his reputation. They were followed by other witnesses intended to refute various points the prosecution had made, including Dean Andrews, who testified that Shaw was not the “Clay Bertrand” who had called and asked him to represent Lee Oswald in Dallas.[74]
Rather than go through the entire litany, I shall focus on the testimony of the defense’s two most important witnesses. The first was Lieutenant Colonel Pierre Finck, one of the three pathologists who participated in the military autopsy of President Kennedy at Bethesda Naval Hospital in Maryland.
The autopsy had been so tainted in several respects that prior to the trial we wondered whether or not the defense would expose one of the pathologists to the risk of cross-examination in a courtroom. First of all, under Texas law the body should never have been removed from the city until a civilian autopsy had been done by a pathologist at the mortuary in Dallas. Texas officials informed the Secret Service of this as the body was being placed in an ambulance, but instead of going to the mortuary, the Secret Service whisked the body to the airport, where it was put on Air Force One and taken to the Bethesda Naval Hospital.
Second, although the civilian doctors at Parkland Hospital had already diagnosed the wound in the front of Kennedy’s neck as an entrance wound, the three military pathologists did not probe it, as is standard procedure, to find the bullet or trace its path.
Third, 15 to 20 photographs and X-rays of President Kennedy’s body were taken during the autopsy and handed over to Agent Roy H. Kellerman of the Secret Service, yet none of these was ever examined by the Warren Commission. Instead, the chief pathologist, Commander James Humes, arranged for artists to draw pictures of various parts of the autopsy for the Commission. Not even the artists were allowed to see the photos and X-rays. They drew their pictures from the pathologists’ verbal recollections. Finally, on Sunday, November 24, 1963, Commander Humes by his own admission burned all his autopsy notes.[75]
We knew, of course, that the defense could not very well bring down Commander Humes as a witness, considering what he had done. That left Dr. J. Thornton Boswell and Lieutenant Colonel Finck. The defense chose Finck, who, oddly enough, also had participated in the autopsy of President Kennedy’s younger brother Robert following his assassination on June 4, 1968.
In our trial preparation we had explored extensively all of the available information about the President’s wounds and were well prepared to question Dr. Finck. However, we could not be sure in advance which position he would take.
Because of conflicting evidence, there were two completely different official explanations of where Kennedy had been hit from behind. One, based on the testimony of Secret Service agents who were close to the President when he was shot as well as F.B.I. agents at the autopsy scene, placed the rearward wounds slightly more than five inches downward from the collar line and approximately two inches to the right of the spine. This explanation was strongly corroborated by Kennedy’s shirt and jacket, each of which had a bullet hole slightly more than five inches below the collar line.
The other official explanation, defended with equal solemnity by the government, was that the rearward bullet struck President Kennedy in the back of his neck. This hypothesis not only placed the wound nearly half a foot above the bullet holes in the President’s shirt and jacket, which, it was claimed, must have been bunched up high on his back, but also directly contradicted the previous explanation. The second position was more consistent with the idea of an exit wound in the front of the throat, because at least it did not require that bullet to have gone upward after coming down at a seventeen-degree angle. But it had other problems. No photograph had ever been released showing an entrance wound at the rear of the neck. Furthermore, the width of the “entrance” wound was measured from the clothing as virtually the same size of the “exit” wound below the Adam’s apple. Inasmuch as exit wounds are invariably larger than entrance wounds, this made no sense.
We listened intently to Dr. Finck’s direct testimony, in response to questions by Irvin Dymond, to ascertain which explanation he would support. Dr. Finck sat erect and spoke with great precision. I imagined that his desk probably was kept in perfect order with no unfinished correspondence or unnecessary clutter obscuring the clean walnut top. He was obviously most meticulous, as revealed by his habit of spelling out loud technical medical words after he uttered them—apparently a remnant of his teaching experience.
As it turned out, Dr. Finck arrived from Washington as a spokesman for the “back-of-the-neck” entry. He testified, in effect, that the autopsy strongly supported the likelihood that the President had been killed by one rifleman firing at him from behind, one shot hitting him in the neck and the other striking him in the back of the head and killing him. As his testimony went on, it became apparent that he was using the term “back” in its broadest possible sense to include that part of the back which runs up above the shoulders into the neck.
I glanced at Oser to see if he was ready. He nodded grimly. Oser was a tall, rangy young man with blue eyes and blondish hair. His father had been a judge in this same Criminal District Court for years, and the court had been his destination since the first day he arrived at law school. Foremost among his many trial capabilities, as Dr. Finck was about to find out, was a snapping-turtle tenacity in cross-examination.
As he loped toward the witness chair, Oser greeted Dr. Finck with a warm smile. Within minutes he had the autopsy pathologist back-pedaling at a rapid rate. After Dr. Finck committed himself to the proposition that the entry wound was in the back of the neck, Oser quickly moved to the question of whether the neck wound had been probed at the autopsy. This should have been a standard and routine examination to determine the route of the wound. When Dr. Finck’s answer was negative, Oser began pressing him:
DR. FINCK: I will remind you that I was not in charge of this autopsy, that I was called—
MR. OSER: You were a co-author of the [autopsy] report though, weren’t you, doctor?
DR. FINCK: Wait. I was called as a consultant to look at these wounds; that doesn’t mean I am running the show.
MR. OSER: Was Dr. Humes running the show?
DR. FINCK: Well, I heard Dr. Humes stating that—he said, “Who’s in charge here?” and I heard an Army general, I don’t remember his name, stating, “I am.” You must understand that in those circumstances, there were law enforcement officers, military people with various ranks and you have to coordinate the operation according to directions.
MR. OSER: But you were one of the three qualified pathologists standing at the autopsy table, were you not, doctor?
DR. FINCK: Yes, I was.
MR. OSER: Was this Army general a qualified pathologist?
DR. FINCK: No.
MR. OSER: Was he a doctor?
DR. FINCK: No, not to my knowledge.
MR. OSER: Can you give me his name, colonel?
DR. FINCK: No, I can’t. I don’t remember.
MR. OSER: Do you happen to have the photographs and x-rays taken of President Kennedy’s body at the time of the autopsy and shortly thereafter? Do you?
DR. FINCK: I do not have x-rays or photographs of President Kennedy with me.
Of course he did not have the X-rays or photographs of President Kennedy with him. Our pathologist witness, Dr. Nichols, had asked the government to see the X-rays and photographs of President Kennedy’s autopsy, and his requests were denied. Dr. Nichols also had testified that he asked to see the limousine in which President Kennedy had been riding, and the government denied that request also.
Oser now zeroed in on who had been in charge of the autopsy, a question that had long fascinated me.
MR. OSER: How many other military personnel were present at the autopsy room?
DR. FINCK: That autopsy room was quite crowded. It is a small autopsy room, and when you are called in circumstances like that to look at the wound of the President of the United States who is dead, you don’t look around too much to ask people for their names and take notes on who they are and how many there are. I did not do so. The room was crowded with military and civilian personnel and federal agents, Secret Service agents, F.B.I. agents, for part of the autopsy, but I cannot give you a precise breakdown as regards the attendance of the people in that autopsy room at Bethesda Naval Hospital.
MR. OSER: Colonel, did you feel that you had to take orders from this Army general that was there directing the autopsy?
DR. FINCK: No, because there were others, there were admirals.
MR. OSER: There were admirals?
DR. FINCK: Oh, yes, there were admirals, and when you are a lieutenant colonel in the Army you just follow orders, and at the end of the autopsy we were specifically told—as I recall it, it was by Admiral Kinney, the surgeon of the Navy—this is subject to verification—we were specifically told not to discuss the case.
MR. OSER: Did you have occasion to dissect the track of that particular bullet in the victim as it lay on the autopsy table?
DR. FINCK: I did not dissect the track in the neck.
MR. OSER: Why?
DR. FINCK: This leads us into the disclosure of medical records.
MR. OSER: Your Honor, I would like an answer from the colonel and I would ask the Court so to direct.
THE COURT: That is correct, you should answer, doctor.
DR. FINCK: We didn’t remove the organs of the neck.
MR. OSER: Why not, doctor?
DR. FINCK: For the reason that we were told to examine the head wounds and the—
MR. OSER: Are you saying someone told you not to dissect the track?
THE COURT: Let him finish his answer.
DR. FINCK: I was told that the family wanted an examination of the head, as I recall, the head and chest, but prosectors[76] in this autopsy didn’t remove the organs of the neck, to my recollection.
MR. OSER: You have said they did not. I want to know why didn’t you as an autopsy pathologist attempt to ascertain the track through the body which you had on the autopsy table in trying to ascertain the cause or causes of death? Why?
DR. FINCK: I had the cause of death.
MR. OSER: Why did you not trace the track of the wound?
DR. FINCK: As I recall I didn’t remove these organs from the neck.
MR. OSER: I didn’t hear you.
DR. FINCK: I examined the wounds but I didn’t remove the organs of the neck.
MR. OSER: You said you didn’t do this; I am asking you why you didn’t do this as a pathologist?
DR. FINCK: From what I recall I looked at the trachea, there was a tracheotomy wound the best I can remember, but I didn’t dissect or remove these organs.
MR. OSER: Your Honor, I would ask Your Honor to direct the witness to answer my question. I will ask you the question one more time: Why did you not dissect the track of the bullet wound that you have described today and you saw at the time of the autopsy at the time you examined the body? Why? I ask you to answer the question.
DR. FINCK: As I recall I was told not to, but I don’t remember by whom.
It came as no surprise to us that the customary neck probe was not done. However, we were surprised to learn that an Army general who was not a physician had apparently ordered the autopsy pathologists not to do it, and that an admiral had ordered them not to discuss the autopsy.
Even more shocking to me was the next major witness for the defense. I was seated near Jim Alcock at the prosecutors’ table and was just lighting up my pipe when I heard Irvin Dymond call “Clay Shaw.” The pipe slipped from my mouth. I have never been more astonished. Shaw did not have to testify, because no one can be forced to testify against himself or herself. Yet he must have known by now that we had dug up witness after witness concerning his relationship with David Ferrie and Lee Oswald and that once he took the witness stand we would cross-examine him at length about this.
Possibly Shaw’s attorneys were overconfident following Spiesel’s description of his need to fingerprint his daughter and the judge’s ruling excluding Shaw’s signature admission to the alias of “Clay Bertrand.” Or possibly Shaw himself, wanting to gild his already luminous public image, insisted. In any case, he took the stand and testified—under oath—that he had never known Oswald, never used the alias Clay Bertrand, and never called Dean Andrews. And most amazing of all, he testified that he had never even met David Ferrie.
In the normal course of events, that mistake would have put Shaw in a box, gift-wrapped and tied with a bow, for future perjury prosecution. And more immediately, it would have seriously damaged his credibility in the current case because so many witnesses had testified that they had seen Shaw with Ferrie. But this case was hardly normal, and it was clear by now that no jury would find an eminently respectable, prominent, distinguished community leader guilty of conspiring to kill the President, especially following an unforgettable example of genuine lunatic testimony from a prosecution witness.
Early Saturday morning, March 1, 1969, just past midnight, the jury filed into the courtroom and announced that it had acquitted Clay Shaw. I had been prepared for the inevitable verdict and had very little emotional reaction to it. I continued to believe that Shaw had participated in the conspiracy to kill the President, his role having been essentially to set up Lee Oswald as the patsy. But I did not feel vindictive toward Shaw. I did not even dislike him. He simply had done his job as a functionary of the federal intelligence community. And I had done mine as the elected representative of the people of New Orleans.
Following the acquittal, Mark Lane questioned members of the jury, a procedure which is allowed in Louisiana. Their responses indicated that they could not find any motivation for Shaw to have participated in a conspiracy to kill Kennedy, whom he always publicly professed to admire. This did not surprise me. I had known from the outset that we would be unable to make Shaw’s motivation clear. That motivation, I believed, stemmed from Shaw’s history as a C.I.A. operative and his desire, shared by the hard-core cold warriors in the intelligence community, to stop Kennedy’s attempt to turn around U.S. foreign policy. But at the time of the trial the C.I.A. would not acknowledge Shaw’s connection with it, and I had no independent evidence either, so I could not even introduce this possible motivation. It was not until later that I discovered the Italian and Canadian press exposés of Shaw’s role in Centro Mondiale Commerciale and Permindex. (See Chapter 6.) And it was not until 1975 that Victor Marchetti discussed the Agency’s concern for Shaw, and not until 1979 that Richard Helms, the C.I.A.’s deputy director for plans (covert operations) in 1963, first admitted under oath that Shaw had Agency connections.
In a 1979 trial, Helms was asked if he knew Clay Shaw. He responded, under oath:
The only recollection I have of Clay Shaw and the Agency is that I believe that at one time as a businessman he was one of the part-time contacts of the Domestic Contact Division, the people that talked to businessmen, professors, and so forth, and who traveled in and out of the country.
In a subsequent trial, in 1984, this answer was repeated to Helms, and he was asked, “Do you recall making that statement under oath on May 17, 1979?” He responded, “If it says here I did make it under oath, I guess I did.” Helms also conceded then that he had publicly denied this fact when he was the director of the Agency.
Had the jurors been aware of Shaw’s Agency connection, the verdict might possibly have been different. Even as it was, every juror Lane questioned agreed that the prosecution had established that President Kennedy had been killed as the result of a conspiracy. To me, this was important. The jurors had acquitted Shaw as an individual, but they had not accepted the federal government’s great lie about the assassination.
The national press treated the verdict as nothing less than a full vindication of the Warren Commission. Of course, the New Orleans jury had heard evidence concerning only one small corner of what necessarily was a large enterprise. Furthermore, only one individual, whose participation was marginal, had been under consideration. It mattered not. For the moment, the lone assassin myth was resurrected, propped up in a chair by the window and undertaker’s rouge applied to its cheeks.
In New Orleans, the reaction of the Times-Picayune and the States-Item would best be described as dignified jubilation. Unlike their national counterparts, the local media had known all along that we had a first-rate district attorney’s office, so they had not become seriously infatuated with the “witness brutality” allegations.
Nevertheless, the local press demanded my resignation. The States-Item, in a front-page editorial on March 1, 1969, said:
District Attorney Jim Garrison should resign. He has shown himself unfit to hold the office of district attorney or any other office.
Mr. Garrison has abused the vast powers of his office. He has perverted the law rather than prosecuted it. His persecution of Clay L. Shaw was a perversion of the legal process such as has not been often seen…
Clay L. Shaw has been vindicated, but the damage to his reputation caused by Mr. Garrison’s witch hunt may never be repaired. It is too shameful. This travesty of justice is a reproach to the conscience of all good men and must not go unanswered. Mr. Garrison himself should now be brought to the bar to answer for his conduct.
The next day the Times-Picayune’s slightly milder front-page editorial said more or less the same thing. These, it turned out, were merely the first of a number of demands for my resignation by the local press. But I was not about to resign for doing my duty.
To me, the next step was obvious. Although Clay Shaw had won one case, he had created an even better one. On Monday morning, March 3, I filed perjury charges against Shaw. Specifically, I charged him with having testified under oath that he had never met David Ferrie. In fact, Shaw not only knew Ferrie well but frequently had been seen in his company. We had more witnesses to prove this flagrant case of perjury than I had ever encountered as district attorney.
Given my personal choice, I would much rather have let the matter rest once and for all. On the preceding Saturday morning, the jury had relieved me of a great burden. And, truth to tell, I was awfully tired of dancing with the federal government, its mindless intelligence machinery, and the countless battalions of reporters who helped to support the government’s deception of the American public about Kennedy’s assassination.
However, the choice was not mine. My decision had been made automatically when—contrary to the numerous statements in our files—Shaw had taken the witness stand and, in his grand and courtly manner, made a mockery of the law against lying under oath. There was no more emotion involved in my filing this charge than there is when an airline pilot, informed of bad weather at his destination, changes the course of his airplane to an alternative airport.
Understandably, given the history of this particular case, Shaw promptly sought refuge with the federal government. His attorneys asked the federal court to enjoin me from prosecuting Shaw for perjury. However, there was on the books an explicit statute making it very difficult for any federal court to interfere with a state prosecution.[77]
Fortunately for Shaw, the federal judicial system shut its eyes to that federal law. The United States District Court did enjoin me from prosecuting Shaw for committing perjury, and the federal appellate structure firmly backed up the District Court’s ruling all the way. When the assassination of a dead President has been ratified by a live national government, details such as the law very quickly become irrelevant.
In any case, the local newspaper editorials calling for my resignation received from New Orleans citizens the attention they deserved. In the election for district attorney later that year, I received 81,000 votes, the runner-up received 61,000, and the third-place candidate received 7,000.