Closing arguments by Alvin Oser
CRIMINAL DISTRICT COURT
PARISH OF ORLEANS
STATE OF LOUISIANA
STATE OF LOUISIANA vs. CLAY L. SHAW
EXCERPT OF THE TESTIMONY TAKEN IN OPEN COURT
February 28, 1969
ALVIN V. OSER'S CLOSING ARGUMENT
B E F O R E: THE HONORABLE EDWARD A. HAGGERTY, JR., JUDGE, SECTION "C"
THE COURT: All right, Mr. Oser, you may proceed.
MR. OSER: Gentlemen of the Jury, I hope you will bear with me. I do not intend to speak too long to you on what the State's position is as to what happened in Dealey Plaza November 22, 1963, as a result of the conspiracy agreement and the meeting of the minds that took place in New Orleans involving the defendand Clay Shaw. I would merely like to point out to you gentlemen a few of the facts and a few of the points that came from this witness stand, which resulted in the death of our late President John F. Kennedy, in Dealey Plaza on November 22, 1963.
If I may, gentlemen, the question before you gentlemen as jurors is that on November 22, 1963, was there on person and one gun used at that time? (Delineating on blackboard.) Now, in order to get at the answer, let's look and see what the evidence reveals. We know from the witnesses and from the evidence presented, that the results of what happened in Dealey Plaza was that the President was shot in the back and/or the neck area; that the Governor of the State of Texas was shot in the back; and that the President was shot in the head. Now let's look and see when, in order that we may correlate ourselves, when the three results occurred. What do we have from the witness stand to ascertain when was the President of the United States struck in the back, or the back of the neck? We have the testimony of Abraham Zapruder, the gentleman that was on the concrete pagoda taking the particular pictures which are now known as the Zapruder film.
Besides Mr. Zapruder, we have that of Mr. Phil Willis, the gentleman that took certain slide photographs at that particular time. We also have the testimony of Mr. and Mrs. Newman, and you will recall that Mr. and Mrs. Newman were in this particular area (indicating) in front of the Stemmons Freeway which, as you recall from the pictures, blocked the Zapruder camera from taking from frame 207 to frame 224 as to what happened. What did Mr. and Mrs. Newman tell us? They told us that at the time they heard the first shot that the President reacted in such a way that his hand went up towards his throat area.
We also have the testimony of Mr. Simmons. You recall Mr. Simmons was on the triple overpass, or underpass as it's called, who had a panoramic view of what was transpiring on Elm Street as the motorcade approached him. Mr. Simmons said at the time he heard the first shot he saw the President react with his hands going up. Looking at the Zapruder film, we also have the testimony of Agent Frazier, who said in the reconstruction -- as a result of the reconstruction, that the earliest possible time that the President could have been hit is at frame 207.
We have the testimony of Dr. Nichols, the expert qualified by the State in the field of Pathology, who told you that at frame 224 in the Zapruder film that the President of the United States was reacting to some stimuli in the fact of raising his hands towards his throat area.
We also have Agent Shaneyfelt, who I believe testified that the President could not have been hit before frame 207 [text missing] approximately frame 224 to a head shot in the back of the neck or in the back.
In regards to the second result of what happened in Dealey Plaza, we have that of the injuries received by the Governor of the State of Texas. Again we have the testimony of Mr. and Mrs. Newman, who told you at the time they heard the second shot they saw the Governor's eyes bulging with his arm down in this particular position that I am now (demonstrating). We also again have Mr. Simmons, amongst other witnesses, but more specifically Mr. Simmons because he had again the panoramic view of what was going on as that motorcade came down Elm Street. At this particular time, as I recall the testimony, Mr. Simmons stated that at the time he heard the second shot, the Governor of the State of Texas, Governor Connally, reacted toward his chest area.
We also have the testimony of Agent Shaneyfelt of the Federal Bureau of Investigation, who says that in his opinion the Governor was reacting to a shot at frame 232. But more importantly so, we have the statement of the pathologist, Dr. Nichols, who stated to you that in his opinion the Governor of the State of Texas was reacting to a shot, or to a stimulus, at frame 238 and that the reason Dr. Nichols states, in his opinion, that the Governor is reacting at frame 238 is because of the dip in the right shoulder of the Governor, the puffing of his cheek at this particular time. If you compare this photograph to say, frame 230, you will note that the Governor is looking straight forward; his shoulders appear to be squared; and I submit to you gentlemen, very, very near and very, very close to the door of that presidential limousine, because if you will look close, you will see at this particular time in frame 230, the Governor is holding his hat, which appears to be a gray hat and he appears to be almost, but not exactly, next to the door area. So, we now have a result, and using the Zapruder film, the Governor's back wound occurring or reacting at frame 238.
In speaking of the third result in Dealey Plaza, that of the head shot to the President or the last shot as depicted in frame 313, again we have the testimony of Mr. Zapruder, who stated that the last shot he heard, -- you must recall that he only heard two shots -- the last shot that he heard, he saw the President's head open up, and from the witness stand he said -- remember, Mr. Zapruder is taking these pictures with a telescopic sight or a zoom lens, in essence, gentlemen, he is looking through a pair of field binoculars as to what is about to happen to the President of the United States, and he sees, as was the testimony of Mr. Zapruder, that he was right here on the right side of the head, and he testified (indicating photograph). Mrs. Willis also testified that the third shot that she heard was the one at which time the President's head exploded.
In referring to frame 313, I'm sure you will agree with me there is no doubt that this particular frame is the frame in which the President received his head shot and the fatal shot. I am now marking on the board the result of the head shot at frame 313.
What we do have, gentlemen, in regard to the Zapruder film is that the Zapruder film is a clock in this case, or a ruler in this case. We know from the testimony of the FBI Agent, Shaneyfelt, who tested the Zapruder camera, that the Zapruder camera runs at 18.3 frames per second. All right. But we also know, gentlemen, from the testimony, of FBI Agent, Frazier, that the rifle that he tested shot on an average of approximately two shots, rather on an average of approximately 2.8 seconds, or, as he said, approximately three seconds. Let's take all the times that Agent Frazier shot this rifle. At the outdoor range, at 300 feet away, the best time that he did was that of 5.6 seconds. This, gentlemen, however, you recall was not taking into consideration the time it took him to aim that first shot. He said, on examination from the witness stand, that it took him approximately three seconds to get off the first two shots, not considering how long it took him or may have taken him to aim that first shot. So giving them the best estimate, the expert Frazier, that of 2.8 seconds, plus the time it would take him to sight-in the target the first time.
All right. Now, from using the Zapruder film, if two shots are got off in 2.8 seconds, then the two shots would have been gotten off -- it would take the Zapruder film to run 51.2 frames. At the time Frazier was doing these tests, when they were in the indoor range shooting at 75 feet, the best time was attained by Frazier, and that time was I believe 4.6 seconds. That's the fastest he ever shot the gun. So considering 4.6 seconds and the time that it would take to get off the first two shots, which would be 2.3, plus the time it would take him to sight-in -- now, two shots at 2.3 seconds, using the Zapruder film as a clock or as the ruler, we would then get the passing of 42 frames of the Zapruder film.
Now, between, gentlemen, frames 207, which is the first time that the President could have been hit, and frame 238, when Governor Connally is reacting, we have the passing of 31 frames. Thirty-one frames calculated with the Zapruder film running at 18.3 frames per second gives us 1.6 seconds. Let's take the FBI estimate. Let's say that the Governor was reacting at 232, as Shaneyfelt said. The difference between 207 and 232 would be 25 frames, or 1.4 seconds. At no time, gentlemen, in any of this testimony mathematically and scientifically, if it takes 1.6 seconds and 1.4 seconds, the FBI experts say that they cannot possibly get two shots off before 2.3 and 2.8, which makes it impossible for that gun that he examined in the sixth floor of the Texas School Book Depository to get off two shots, because the best time in the world would be 2.3 seconds, not considering the sighting, and if we use the Zapruder film and the Zapruder camera as the clock, the passage of time between 207 and 238 or 207 and 232, or 1.4 seconds and 1.6 seconds, it just doesn't match up mathematically. So if the gun couldn't have fired that fast, what do we look at next? We look at the possibility of whether or not one bullet hit both the President and the Governor.
Now, in regards to whether one bullet hit the President and the Governor, we know that the President is reacting at 224. We know that the Governor is reacting at 238. The difference between 224 and 238 is 14 frames, and there again, using the Zapruder film running at 18.3 frames per second, we have approximately the passing of three-quarters of a second, which is a very, very short time, gentlemen. I want to call t your attention that in dealing with the frames of the Zapruder film and the Zapruder camera, we are not talking about five minutes or any long length of time. In other words, gentlemen, every picture you see here was taken in 18.3 of a second and that's fast. So when I speak of 14 frames passing in three-fourths of a second, the time is really moving.
Now, you heard the testimony of Dr. Nichols, the pathologist, who ran tests with a 6.5 Mannlicher-Carcano rifle, and you heard the testimony of Agent Frazier, who told you that the rifle he examined was traveling, or the pellet rather was traveling at an average of 2,175 feet per second. It packed a muzzle energy of 1,676 foot pounds. Now in regards to the three-quarters of a second, Dr. Nichols, in his expert opinion, said that if Governor Connally had been struck by the same bullet that the President is reacting to in 224, that the Governor's reaction would have been instantaneous because of the force and the velocity of a 6.5 Mannlicher-Carcano shell. In fact, if I remember the testimony correctly, Dr. Nichols said that he would have had to react in 7/5, 760ths of a second. Seven over 5, 760th of a second. We also must turn our attention to dealing with the proposition of whether or not one bullet did the damage to the President and the Governor; if we have the passing of 14 frames and it took three-quarters of a second for the President and the Governor to react when the reaction should have been instantaneous, we should also turn our attention to that of 399, Commission Exhibit 399.
Now, in discussing 399 as to whether or not that particular pellet did the damage to the President and the Governor, I direct your attention to the testimony of Dr. Finck, who testified in court and told the Warren commission that, in his opinion, it was impossible for Commission Exhibit 399 to do all the damage to the President of the United Sates, going through his neck, and doing the damage to the Governor, because why, gentlemen? There were too many metal fragments in the wrist of the Governor. You heard testimony about the weight of this particular bullet. You heard testimony from Agent Frazier that the jacket of this particular bullet was intact, and that the jacket is a copper-jacket bullet containing lead on the inside, and as I said, basically intact. He did say a part of the jacket was removed when he submitted it to spectrographic analysis.
We also have testimony in the case from the witness stand that in the throat area, of the track through the throat of the President, there was metallic substances. We also have, gentlemen, in regard to this a very important point. We know as was set up with the pictures, according to the Zapruder film, that the President had reacted at frame 224. We know in the pictures and from the expert testimony that the Governor is reacting at approximately 238, and of course we know by merely viewing the film and viewing the photograph of frame 313 that the President was hit the final time at frame 313.
Now, you might recall a lot of testimony and a lot of questions, on my part, about lateral angles; about whether or not the experts during their reconstruction not only calculated the angles from the sixth floor down or the horizontal angle -- or the vertical angle rather, but what was the lateral angel, the right-to-left angle which was not calculated by any of the experts during the reconstruction? Let's take, gentlemen, in regard to frame 224 for a moment, and this Agent Frazier couldn't see or understand what I was driving at, but I want to show it to you. If you take a line, draw it through frame 224, (demonstrating with green paper over red dots) my point was, in asking Frazier what was the lateral angle, right-to-left from here to here (measuring with string), this angle, gentlemen, that is created between this green line and this piece of string.
Gentlemen, if you recall the testimony of Dr. Nichols, who told you -- and the hypothetical question by Mr. Alford, in describing the wounds of the throat area of the President as stated by Dr. Finck, one of the "pathologists" at the autopsy, that the trajectory through -- and that there were no bones broken in the throat area of the President. Dr. Nichols told you in order for a projectile to pass through the area of the human body at this particular location and not hit bone, that the minimum angle would have to be, right-to-left, that of 28 degrees.
Now referring to frame 224, let me take a protractor and place it in the area of 224 through the perpendicular line and view the angle of 28 degrees. As I read the protractor, the angle of 28 degrees from frame 224 places it here. That's the spot, not the sixth floor of the Texas School Book Depository Building, because you remember they didn't even attempt to ascertain what the lateral angle is or was. The spot on the protractor -- on the basis of Dr. Nichols' testimony, it had to be at least 28 degrees, otherwise it wouldn't have gotten through the neck without breaking a bone -- puts the shot at 224, not from the Texas School Book Depository sixth floor but somewhere in this vicinity of the Texas School Book Depository Building, which is not the sixth floor window. Which window? I don't know, but you recall Mrs. Carolyn Walther's testimony, who was standing in this vicinity here (indicating) at the time the parade was coming. She looked up to the Texas School Book Depository and saw two men in a window, one with a gun. Two men in a window, one with a gun. Now, considering the fact, gentlemen, that in speaking of the 18.3 frames per second and whether or not a single bullet could have done all the damage, we have shown to you that between frames 224 and 238, there must be the passing of three-quarters of a second. We have shown you testimony of the expert that if Connally was hit with the same bullet, it had to happen in 7/5/760ths of a second, and, furthermore, that according to the expert testimony, that the bullet could not have possibly gone through the human body in a minimum angle other than 28 degrees, and if they had calculated the lateral angle that I was talking about, but that they didn't seem to understand what I meant, this is where the 28 degrees falls (indicating), because, if you recall, Dr. Finck, the "pathologist" at the autopsy, said that there were no bones broken in the President's throat.
So, I believe, gentlemen, the State has proven to your satisfaction and beyond any reasonable doubt that not only could the gun that Frazier tested not have fired in the time span, using the Zapruder film as the clock, to get off two shots, likewise, the same bullet certainly could not have hit the President of the United States and Governor Connally. And if that didn't happen, what do we have now? Now we have two people and two guns.
Now let's turn for a moment to the head shot of the President. But before we do, touching upon one point as to whether or not the Governor and the President could have been hit by the same bullet, in order for a bullet to go through the President's neck at 28 degrees, which is the minimum angle possible if it didn't break any bones, in order for that same bullet to hit the Governor in the arm pit, that bullet in its traveling of that track of 28 degrees from this area (indicating), which is not the sixth floor window on this particular corner of the Texas School Book Depository Building, that in the opinion of Dr. Nichols, the Governor, after he viewed the film and studied the photographs, would have had to have been at least 18 inches to the left of where he was sitting. Nowhere in any of these photographs, 224, 230, 238, is the Governor 18 inches to his left, which would make it possible for the same bullet then to enter his particular back and do the damage that it did. Now, since we have a possible answer to our question thus far, that of two people and two guns, let's look at the third result, that of the wound in the President's head. I believe you will recall, gentlemen, from seeing the Zapruder film, the reaction of the President in that particular film of him going backwards and to his left as he sat in the car around frame 313 and thereafter.
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