How JFK Conspiracy Theorists badly misinterpret Chain of Custody
NIST Archival Digital Image, #399_5859
One of the most highly debated issues in the JFK Assassination literature is CE399, better known in common parlance “the magic bullet”. For decades many on the conspiracy side of the argument scoff at the bullet, its provenance, and whether or not it could have caused all the wounds to President Kennedy and Governor Connally. One of the arguments is whether or not this bullet, CE399, would have been admissible as evidence due to perceived problems with the Chain of Custody (COC). This article will address this issue.
Background
Recently this author received some feedback on my recent article, published on Washington Decoded, addressing one part of the COC that was a controversial item of contention, the missing FBI Washington Field Office agent Elmer Todd’s initials on the bullet. You can read the article here: https://www.washingtondecoded.com/site/2022/06/roe3.html#more
It’s highly suggested the reader carefully study that article linked above, as it provides a good background to where that bullet was found and how it made its way to Washington DC. As you will see, Elmer Todd’s initials were indeed on that bullet putting an end to a popular conspiracy theory that the bullet was planted or switched by the FBI. As crazy as that theory was, some people still persist there was something sinister with that bullet. Why?
CE399 bullet was important to linking Oswald to the shooting. When the FBI examined that bullet, they concluded it was fired by Oswald’s rifle to the exclusion of all other rifles. This caused a lot of angst among some theorists, and they still attempt to discredit that bullet in any shape or form. In short, they want it to go away and removed from evidence. For years theorists have challenged the COC of the bullet in books and forums. Recently this was popularized in Oliver Stone’s highly discredited JFK: Destiny Betrayed film.
Oliver Stone and Screenwriter James DiEugenio, Credit: journaldequebec.com
Oliver Stone unabashedly declared:
“Nothing matches. There’s no chain of custody — of a bullet or a rifle or fingerprints. Nothing was done right. It was a completely botched investigation, which is amazing considering that he was the most important person as president. There just was no serious investigation,” Stone said. 1
Let’s examine this claim that the Chain of Custody on CE399 was broken, weak or non-existent as per Oliver Stone and conspiracy theorists.
Steps in Criminal Court Procedures
To set up this examination, let’s indulge in the hypothetical. Suppose Jack Ruby overslept and missed the opportunity to shoot Oswald on November 24, 1963. Taking Ruby out of the equation, let’s assume that Oswald was successfully transferred from Dallas City Jail to Dallas County Jail under Sheriff Bill Decker’s custody. Oswald now pending trial was already arraigned for both the murders of Officer JD Tippit and President Kennedy on November 22nd by Justice of the Peace David Johnston.
You can view JP Johnston’s video explaining the charges and the possibility of an Examination hearing by Oswald’s pending legal defense here: https://www.youtube.com/watch?v=XGpkyWt8Cv8
As Johnston explained, this was a felony capital offense of murder, and an examining trial was available by Texas Law for the ruling on the No-Bond. It could be waived and then passed onto the grand jury. Either way, it would be forwarded to the grand jury.
Grand Jury Procedure
A grand jury's role is simply to determine whether there is probable cause that the defendant committed the crime. Probable cause is a very low standard of proof, something the Supreme Court has described as a "practical, nontechnical conception" dealing with "factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." "The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same -- and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement."2 In other words, it was a foregone conclusion that Oswald would have been indicted by the grand jury had the case been presented.
Again, for hypothetical purposes, let’s assume the grand jurors found there was probable cause and returned a true bill formally charging the defendant. The next step in a felony criminal case is typically an arraignment where the defendant enters a plea of guilty or not guilty. Defendants charged with a felony are entitled to a trial by jury but may waive that right and agree to a bench trial (by the judge) if the prosecution also agrees to a bench trial. Because a criminal conviction requires a unanimous decision by twelve jurors, most defendants request a jury trial.
Pre-Trial Discovery
The next phase of the criminal process is pre-trial discovery. This is where the prosecution provides the defense with information about its case. The precise nature of evidence that must be turned over to the defense and the timing of the disclosure varies by jurisdiction, but in 1963, the United States Supreme Court held in Brady v. Maryland, 373 U.S. 83 (1963), that the U.S. Constitution required prosecutors to disclose materially exculpatory evidence in the prosecutor’s possession to the defense prior to trial.
Once the criminal trial begins, the prosecution presents its evidence. Defense counsel can seek to prevent the prosecution from offering specific evidence, either by objecting to questions the prosecutor asks witnesses during trial or moving to exclude evidence the prosecution seeks to introduce. The trial judge rules on the admissibility of evidence when there is an objection. Under most state and federal rules of evidence, evidence is admissible if it is relevant, unless there is a specific provision of law making the evidence inadmissible. For example, if evidence was obtained during an illegal search, it would likely be suppressed as obtained in violation of the Fourth Amendment to the U.S. Constitution.
Criminal District Attorney Henry Wade, Photo Credit: Dallas Times Herald
In Oswald’s case, Henry Wade, as prosecutor, would have been expected to turn over in discovery evidence related to the Carcano rifle, bullets, spent shells, FBI lab findings, fingerprints, witness statements, etc. All of this of course is to give the defense the opportunity to prepare their case possibly by moving to suppress some evidence, preparing how to cross examine witnesses or preparing the defendant to testify.
Question now arises, would CE399 be admissible evidence in the trial?
Remember the prosecution is allowed to present relevant evidence to be considered by the jury. Is CE399 relevant? Of course it was! The bullet was a 6.5mm bullet that was examined by the FBI Lab and was determined to be fired from Oswald’s rifle. Wade would have that FBI Lab report. Presented with that back-up evidence, no judge would rule that inadmissible. It is inconceivable that testimony by an expert witness firearms examiner that CE399 was fired by Oswald’s rifle was not relevant. Again remember, it’s the jury’s duty to weigh that evidence, not the judge. And it’s the prosecutor’s duty to prove CE399 was fired from Oswald’s rifle. Could the defense have had the bullet examined by their chosen expert firearms examiner? Of course, but in the intervening years, no one has suggested that another examination would have produced a different conclusion.
Dealey Plaza, Credit: Fort Worth Telegram, Arrow points to Criminal Court Building 3
Criminal Trial
Criminal trials begin with jury selection. Here both the prosecution and the defense use “strikes” to exclude members of the “venire” or potential jurors from actually sitting on the jury. At the end of the process a jury or twelve (or more with alternates) is seated and counsel give opening statements to the jury as to the evidence that will be presented.
Once the trial is under way, the prosecution presents its evidence. Defense counsel can object to the introduction of the prosecution’s evidence as noted above, on grounds of relevance or for any legal reason that the evidence would be inadmissible. Now let’s say the defense challenges the Chain of Custody of CE399. His argument could be “we don’t really know how this bullet came into evidence due to multiple changes of hands in the confusion at Parkland Hospital”. The prosecutor’s response would have been to call Darrell Tomlinson, O.P. Wright, Richard Johnsen and if needed Elmer Todd and Robert Frazier to testify as to their roles in finding CE399 and transferring it to the next person in the chain of custody. These sorts of defense motions to exclude evidence are typically considered by the judge outside of the presence of the jury so that if the judge ultimately were to grant a motion to exclude evidence, the jurors would not have heard testimony about the evidence or if they had already heard evidence the judge later decided was inadmissible, they would have been told to disregard it. Once the judge had ruled CE399 admissible, jurors would have been told -- as part of standard jury instructions at the close of the case --that they could give as much or as little weight to this evidence, like any other evidence admitted by the court.
Testimony of those witnesses establishes the Chain of Custody, even if their initials were not on the bullet. There is no statute or rule of law which provides that only bullets containing initials of the law enforcement officers in the chain of custody can be admitted into evidence. Placing initials on bullets was simply one commonly used technique – probably the most commonly used technique – employed by law enforcement personnel to assist them in proving the chain of custody. By today’s standards, it might seem to be a rather archaic method of evidence tracking, but one must remember that in 1963, laptop computers, digital cameras, barcodes and the modern-day tools of evidence collection and inventory did not exist.
Would a competent defense lawyer make claims of planted or switched out bullets in front a jury? Perhaps, but experienced defense attorneys pick their battles. They don’t typically challenge evidence unless they believe there is a probability that doing so will affect the outcome of the trial. They realize that making unsupported arguments risks losing credibility with the jury which ultimately inures to the detriment of the defendant. Challenging some item of evidence or attacking a witness’ credibility often results in the jury hearing incriminating evidence a second time that it would have heard only once. Faced with other issues that defense counsel has to address, repeatedly raising issues on one piece of physical evidence, can be pointless in front of a jury in light of an FBI expert witness and forensic lab report in the case of CE399.
Johnsen Evidence Letter on CE399, Credit: John Hunt, The Mystery of the 7:30 Bullet
Conclusion
There is no chain of custody issue with CE399. It’s a fantasy concocted by misguided conspiracy theorists. The reality is Secret Service agent Richard Johnsen got that bullet from Parkland’s Security administrator, O.P. Wright. That is documented on Johnsen’s evidence letter. Elmer Todd initialed the bullet as well as Robert Frazier. The big key here, and applying common sense, there was only one bullet passed on from Tomlinson to O.P. Wright and then to Johnsen.
One bullet only and it was CE399.
I would like to acknowledge Win Grant and Frank Badalson for their valuable input on criminal court proceedings and law enforcement experience in court room settings. Both men combined, have over 70 years legal knowledge.
1. Boston Herald, Oliver Stone adds up the clues in ‘JFK Destiny Betrayed’ doc, Stephen Schaefer, March 8, 2022
2. Illinois v. Gates, 462 U.S. 213, 231-32 (1983)
3. Texas Historical Marker notes: Dallas County Criminal Courts Building This site was purchased by Dallas County in 1913 for a new jail and courts building, designed by local architect H. A. Overbeck (1861 - 1942). The steel-framed building, finished in 1915 at a cost of $585,982, is clad with granite, terra cotta, and brick, exhibiting Renaissance Revival styling. The upper six floors housed the jail, designed for 200 prisoners. Two large district courtrooms on the second-floor suspended jury trials during summer months until air conditioning was installed in 1951. In 1964 Jack Ruby (1911 - 1967) was tried in the east courtroom for killing assassination suspect Lee Harvey Oswald (1939 - 1963). Recorded Texas Historic Landmark - 1986