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Don’t Flip the Burden of Proof on Conspiracy Theorists

November 18, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

November 18, 2013

The 50th anniversary of the assassination of President Kennedy is this week.

National and local newspapers are commemorating the occasion by publishing articles on the Kennedy family, JFK’s precedency, and above all else — whodunnit conspiracy theories.

CNN’s Thom Patterson  talks with expert Dave Perry (here) and the Dallas Morning News writer Scott K. Parks (here) casts doubt on consipracy theories in favor of the idea Lee Harvey Oswald acted alone in an interview with Vincent Bugliosi.

Vincent Bugliosi

Vincent Bugliosi, author and former famed Charles Manson prosecutor, has written a 1,632-page book on the Kennedy Assassination.  He flatly concludes Lee Harvey Oswald was the lone killer.

In Mr. Bugliosi’s recent interview with the Dallas Morning News he claimed a trial of Oswald would have produced a quick conviction.  He ‘scoffed’ and said about conspiracy theororists, “To show you how non credible the conspiracy theorists are, over the past 50 years they have accused 42 groups, named 82 assassins and a total of 214 people as being involved in the assassination… not one single word or syllable has been leaked out about the existence of a conspiracy.  And the reason is, there is none to leak out.”

Dave Perry

Dave Perry, a retired insurance claims adjuster living in Dallas is also considered an expert on the Kennedy assassination.  He claims to spend “a couple hundred hours every October and November” researching the issues in the case.  He is consulted regularly by reporters and producers. Though he can’t cast doubt on all theories, people consider him “an anti-conspiracy guy” though the CNN article points out Mr. Perry has a hard time dispelling claims of CIA involvement.

So What’s the Beef with these Guys?

Now let’s get a few things straight.  Mr. Bugliosi & Mr. Perry know ridiculously more about the JFK assassination and the evidence surrounding it than I know (or ever care to know for that matter).  I’ve seen a documentary here and there and, of course, Oliver Stone’s movie JFK.  I did an internship in law school downtown where I had to park behind the grassy knoll and walk across Dealy Plaza every day for about 2 months (which is creepy each and every time you do it).

If I had to put money on it, I’d say the assassination was a plot of some sort but like I said… I’ll readily confess to not knowing as many of the facts as the experts.

Here’s what I can say… marginalizing conspiracy theories and flipping the burden of proof on them is a great way to come to the wrong conclusion about what happened on November 22, 1963.

Flipping the Burden of Proof

One essential aspect about a criminal trial is the burden of proof never-ever shifts to the defense.  This is for several reasons — not the least of which is it’s virtually impossible to prove a negative.  Alternate theories are often possible — but are also always easy to shoot-down by a polished prosecutor.  Just because other theories have evidentiary flaws doesn’t make YOUR theory right.

Take someone on trial for a DWI.  There are only so many ways a person can defend him or herself.  Any evidence produced by an accused would be shredded by a skilled prosecutor.

  • People testifying the accused didn’t have much to drink?  A piece of cake.  Of course those folks will lie to protect their friend.  Or maybe it’s just because those friends were drunk too and not paying attention to how much the accused was drinking.
  • Bar receipts?  That doesn’t mean other people weren’t buying drinks for you.
  • Surveillance cameras from the bar?  Here’s hoping there was one which happened to be aimed at you, turned on, or that you weren’t drinking at home.
  • Your own word?  Everyone knows someone on trial will lie to protect themselves.

Doesn’t it make more sense to scrutinize the police theory instead of concluding your theory is right because no other theory can be proven?  Perhaps a lack of evidence the person is intoxicated may be the best proof someone was okay to drive?

What if We Flipped the Burden of Proof on the Michael Morton Case?

An even better example of why it makes no sense to flip the burden of proof comes from the Michael Morton case.  Michael Morton was freed after decades of confinement for a murder he didn’t commit.  A bloody rag recovered well outside the murder house contained both the DNA of the victim (Morton’s wife) and the perpetrator.

Anyone who insisted on DNA testing of the rag found at a construction site well away from the scene of the crime risked sounding like a lunatic.

Without DNA, the theory of a complete stranger breaking into the Morton house, murdering Mrs. Morton, then leaving a bloody rag on his way out would be laughed out of most courtrooms.  But that turned out to be what happened, right?

How Perry and Bugliosi Flip the Burden

Both experts in their interviews with CNN and The Dallas Morning News respectively flip the burden on conspiracy theorists as above.

Bugliosi points out:

  • No other weapon has been found that can be linked to the assassination.  Oswald was the buyer of the gun in question.
  • All bulletts recovered were from Oswald’s rifle.
  • No other employee of the Texas Schoolbook Depository was missing after the assassination.

Perry points out:

  • Only hearsay supports allegations the mafia is responsible.
  • The military industrial complex didn’t have motive because Kennedy never threatened to pull out of Vietnam.
  • LBJ theories are baseless because Madeline Brown stated she over-heard incriminating remarks from him the day before the assassination at a party she could not have been in attendance at.

But don’t all these points really do the same thing?  They all flip the burden back on flaws of the evidence of the alternate theories.

None of these things fixes the holes in the lone-shooter case.  And if the lone-shooter case isn’t true, then mustn’t there be a conspiracy of some sort?

If there was a conspiracy, we’ll never know what it was.


*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is designed to be legal advice.  For legal advice about any situation you should contact a lawyer directly.

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