Read Surrounded by Enemies Online
Authors: Bryce Zabel
It seemed to many that it had taken forever to get to the business of prosecuting Lee Harvey Oswald. In reality, it had taken only five months, and the miracle was that they could navigate the cacophony of accusations, insinuations and demonstrations with any sanity at all. History now seems clear; things did not go well.
In retrospect, perhaps the first sign that it would be a troubled trial was the resignation of Oswald attorney William Kunstler, who left with an uncommonly terse statement: “I’m making this change in the service of my client.” He was replaced by San Francisco trial attorney F. Lee Bailey. Media wags immediately took to calling the lawyer and his client “the two Lees.”
“Every American deserves a fair trial,” said Bailey when he first announced his presence on the case. “My client is a man accused of a crime that he did not commit, and on that one level, it is just that simple. The men who tried to murder our president are still at large.”
Bailey had distinguished himself in the mid-’50s case of Sam Sheppard (which TV's
The Fugitive
was based on). With Kunstler’s near-daily diatribes, the American Bar Association had begun a whisper campaign among its members and the press designed to undermine him. The ABA leadership had come to believe that the verdict in the Oswald trial would never be embraced by the people if his defense was seen as showboating and self-serving. Bailey also had a flair and a style, but he was clearly the more buttoned-down type, and his demeanor simply shouted competence.
The question that hung over the trial was always the same: Would Lee Harvey Oswald take the stand in his own defense?
“Next question,” said F. Lee Bailey.
The circus-like atmosphere on the streets of Dallas, Texas was unsettling and inappropriate, yet no one seemed able to resist it. It was like the Scopes trial in sheer, high-wattage sensationalism, but it was being televised with an intensity that had only been seen before during the McCarthy hearings of the early ’50s. If the Warren Commission wanted to stay behind closed doors, it was almost as if nature had created its polar opposite force in Texas. Every network featured “live” coverage, and the pre-trial hullaballoo led the evening news on all three networks with amazing regularity.
The trial was set to begin April 20, 1964 but was delayed, based on a prosecution request, to Monday, May 18.
After a two-week jury selection process, the trial began with both prosecutor Henry Wade and defense attorney F. Lee Bailey given an entire day to lay out their opening arguments. While each seemed to have marshaled an incredible assortment of facts, testimony and theories, the basic brief each man brought to their arguments was clear.
The prosecution intended to prove only that Lee Harvey Oswald was the shooter in the Texas School Book Depository. Witnesses would place Oswald as the man in that sixth floor “sniper’s nest” who shot at the Kennedy motorcade with a Mannlicher-Carcano rifle. The jury would be presented with evidence that would convince them beyond a reasonable doubt that Oswald murdered Connally, Hill and Tippit, and attempted to murder President Kennedy.
The defense meant to obscure Oswald’s role by raising grave doubts about the lone-actor theory and disputing testimony that placed him at the Texas School Book Depository. Moreover, Oswald was only a puppet, ultimately manipulated by a shadowy, wide-reaching conspiracy to appear guilty when he was, in fact, a victim himself. By the end of the trial, the jury would see so many holes in the lone-gunman theory that they would have honest and reasonable doubt and would have to acquit on all charges.
In the opening days, when the prosecution presented its case, Henry Wade used his down-home Texas demeanor to hammer witnesses over and over in ways that portrayed Oswald’s involvement as just another crime that needs sorting out before the guilty man is sent away. The victims of gunfire were famous, but it did not change the nature of the crime. “Murder is still murder,” said Wade, and he said this mantra seven times in this opening statement so no one could mistake his belief.
The evidence favored Oswald acting alone, argued Wade, but so long as he pulled a trigger in an act of premeditated assassination, he was guilty as charged. Wade believed the conspiracy charges were a big smokescreen and, in any event, could be addressed at a later date in another venue.
Bailey saw the entire trial as a Kafkaesque masquerade of conspiracy, mirrors within mirrors, secrets and lies. And in the center of this madness, said Bailey, was Lee Harvey Oswald, the puppet who was being danced against his will. Kunstler had always used the word “patsy” to describe his client, because it was the word Oswald himself had used. Bailey felt it sounded like a word that Al Capone would favor and so abandoned it.
Oswald was a puppet, Bailey thundered. The people on that Dallas jury, he imagined, would like the chance to cut those strings, and freeing his client was the best possible way for them to express their outrage.
After just nine days, the prosecution was about to rest. Henry Wade didn’t believe in gilding the lily and, in any case, felt he should not overreach. Wade had presented eyewitnesses to both the shooting in Dealey Plaza and the physical location of Lee Harvey Oswald in the Texas School Book Depository. He brought in witnesses and evidence that placed Oswald as a supporter of communism who had lived in the Soviet Union and had returned to the United States to agitate against the government’s policy in Cuba. This was a man, said the prosecution, who deeply hated his country and showed his contempt for it by shooting at the President himself.
Wade felt, and most agreed, that he had established a crime, presented evidence that placed Oswald at the crime location, tied him to the gun that had been found, and revealed his anti-American motive.
F. Lee Bailey had not really been able to touch him during this phase, and the case against Oswald seemed to be strong. At the same time, Bailey always said he would win his case during the testimony of the defense witnesses who would raise question upon question about the prosecution’s case. Bailey also teased his ace in the hole to the hundreds of reporters and cameramen gathered outside the Dallas Courthouse. Lee Harvey Oswald had a powerful and confounding tale to tell and, if he should tell it, “the heavens shall fall.” At the same time, he refused to confirm that Oswald would testify, always pointing out that he had every constitutional right to refuse and was keeping his options open until the last moment.
June 3, 1964 was, by the calendar, exactly two days until that moment when the defense would mount its own case.
Lee Harvey Oswald sat quietly in his cell that morning and waited. He was in a special holding cell and was allowed only an hour of exercise with other inmates once a day. The case was literally driving him crazy, and he had come to have a maniacal focus on his getting fresh air and exercise in the jail yard.
What happened next was never made explicitly clear in 1964 and is not any more focused today in 2013. What is known as fact is that at 1:37 p.m., Oswald was found by fellow inmate, Clyde Melville, in a pool of his own blood inside a side entrance off the exercise yard. He was unconscious from a severe beating and barely breathing when orderlies, responding to Melville's frantic shouts, summoned the prison doctor on call.
Dr. Joseph Nowotny was not capable of delivering a level of care that would have guaranteed Oswald’s survival, but he got lucky when Melville revealed he had worked briefly as a hospital attendant in Houston before his arrest. Together, Melville and Dr. Nowotny managed to stabilize the injured Oswald. Soon after, Oswald was taken to Parkland Hospital, the same place where Oswald’s alleged shooting victims had been treated.
The trial was immediately suspended, pending an investigation and a judgment on Oswald’s condition. Judge Harlan Epel locked the jury down in a local hotel while the legal teams debated the issues. Within forty-eight hours, everyone realized the judge had no choice but to declare a mistrial, which he did immediately.
The one-two punch of Dealey Plaza and now the Dallas Jail gave Texas a public relations black eye that it took decades to recover from.
In the aftermath, F. Lee Bailey had this to say: “There are no accidents and certainly none in prison. A man this important to the nation’s sense of justice does not get beaten within an inch of his life unless someone wants to send a message. You must ask yourself today who wants to send a message to my client, and what would that message be?”
The internal investigation blamed the attack on inmates angry at Oswald for trying to kill the President. Oswald was not able to voice his response given the swelling in his broken and wired jaw. He did write three words on a doctor’s prescription pad: “Get me Warren.” Oswald had determined there was only one person in America worth talking to more than his lawyer and that was the nation’s top judge, Chief Justice Earl Warren.
The trial was left in chaos by the beating of Lee Oswald. It would not be a fast recovery, the doctors at Parkland advised. The trial was postponed for a month, but the delay was expected to be extended again when the first one ran out. It was just as well. With the mistrial sending all the jurors home, it was clear that the wheels of justice would have to start turning all over again if they were going to turn at all.
While Oswald recovered under police guard at Parkland for the first two weeks before he was shipped back to the Dallas County Jail, F. Lee Bailey was busy. He relayed an urgent message to Earl Warren, saying his client wanted to meet with the chief justice in Texas.
The men who run the Supreme Court are not accustomed to being summoned anywhere by a lowly defense attorney. When the accused, however, is suspected of trying to kill the President of the United States, it pays to listen. Bailey said his client was adamant. He would no longer tell his story in a Texas courtroom. That was off-the-table forever now. But he would tell it to the chief justice, man-to-man.
At the same time, Nicholas Katzenbach, RFK’s top man, had been presenting a case to a federal grand jury convened by the AG’s office that sought to indict Lee Harvey Oswald for the murder of Secret Service agent Clint Hill. For while it was true that a law still needed to be passed making it a federal crime to murder the president, there was federal jurisdiction established for the Secret Service.
So Earl Warren traveled to Dallas, Texas to hear from Oswald. The meeting was set up in a secure conference building. Warren insisted that several commission staff attorneys accompany him. Afterward, they all characterized Oswald as practically begging them to charge him under federal statutes and drag him back to Washington, D.C. Only then, said Oswald, would it be possible for him to confide what he truly knew about the Kennedy “hit.” Oswald argued that telling the truth while he was still physically in Dallas would get him killed for sure next time. He wanted to be granted immunity and moved to Washington, D.C.
The chief justice was stunned. “Immunity?” he asked. “Sir, you are on trial for attempting to murder the President of the United States and succeeding at murdering the governor of Texas, a police officer and a Secret Service agent. All of these people have families.”
Oswald stood his ground. “You want to know what’s happening, Mr. Chief Justice sir, and you want to get the responsible people placed in one of these cells instead of some puppet like me, then I have to demand protection.” Even Oswald had changed the P-word from patsy to puppet.
After the hour-long interview of Oswald ended, he was taken back to his prison hospital bed. He was limping with a cane as he left, and his left jaw still looked as if he had a plum inside his cheek.
Eventually, the content of the talk with Oswald leaked. When it did, District Attorney Henry Wade made it clear he had asked Police Chief Jesse Curry to double security over Oswald and said the only way the feds would ever get their hands on Lee Harvey Oswald was after the state of Texas was good and done with him.
In the Department of Justice in Washington, D.C., Robert Kennedy met with his team of attorneys to discuss what to do next.
By July, the demand for action was reaching a fever pitch in Washington, D.C. Republicans and Democrats alike had come to the conclusion that Lee Harvey Oswald should be a federal prisoner and that the Texas authorities had demonstrated grave incompetence, going back to November 22, 1963 and certainly culminating with Oswald’s beating.
What the people demanding action did not know at the time was that an elite team of federal marshals was training in Virginia to take control of prisoner Oswald in a raid the following Sunday night. The plan was bold and a little bit reckless. It involved serving a warrant, seizing Oswald, and signaling to a helicopter that would pick him up off the rooftop and whisk him to Love Field, where a waiting plane would fly him to D.C. Once there, he would be charged with a civil rights violation.
With the plan less than forty-eight hours from implementation, guards at the Texas County Jail infirmary found Lee Harvey Oswald had taken an entire bottle of his pain medication, Demerol. His stomach was immediately pumped, but it was too late.
Lee Oswald was dead, as was the jurisdictional dispute about who should get to try him first. He would never testify at a legitimate trial, nor would he survive long enough to make a confession before an execution.
The nation was shocked and seething with anger. What the hell was happening in this country, they wondered. The President isn’t safe in broad daylight, and the most important prisoner in the nation can’t be kept safe in order to stand trial. It was outrageous and, coming so close to the still-vivid Cuban Missile Crisis, it felt like the nation was in the middle of a nervous breakdown.
Then the coroner’s report revealed that Oswald’s body showed signs of fresh bruising on his neck and arms. The document concluded it was likely Oswald did not take these pills without a struggle and, therefore, it was more likely a homicide that had been committed than a suicide.
People did not cry as they did after Dallas. This time they cursed. And it made no difference whatsoever.