Kennedy’s Avenger – Assassination, Conspiracy, and the Forgotten Trial of Jack Ruby, Dan Abrams & David Fisher, Hanover Square Press, 2022, 400 pages, $17.99
May I thank this jury for a verdict that is a victory for bigotry.…
I want to assure you we will appeal this to a court where there is justice and impartiality. This is one of the most shocking things I’ve seen in my lifetime. We have a little bit of Russia…. The festering sore that is now the most shocking place in the nation. If the venomous infection spreads throughout the country, God save us all!!!…. I hope the people of Dallas are proud of this jury … this is a kangaroo court, a railroad court and everybody knew it…. We are back a thousand years. The jury has made this city a shame forever… You talk of the shame of Dallas; now you see it in full glory.
I can’t shake hands with you, judge. You’ve got blood on your hands.
Melvin Belli, on hearing the verdict in The State of Texas v. Jacob Rubenstein, (p. 349)
At 8:22 p.m., after hearing 66 witnesses over a 10-day period, including complex testimony from a dozen or so medical and mental health experts, the jury begin hearing closing arguments. Melvin Belli, lead defense lawyer for Jacob Rubenstein alias Jack Ruby, began his closing argument at midnight. Minutes after 1:00 am Judge Joseph Brantley Brown, Sr., gave final instructions. The jury of eight men and four women, selected over 14 intense days of voir dire and a fair amount of crystal gazing, deliberated for two hours and nineteen minutes later that morning.
In the jury room, with little discussion or debate, the jurors had agreed unanimously that Jack Ruby was guilty of murder. They agreed unanimously he was sane when he shot Lee Harvey Oswald. They agreed unanimously that he was sane at the present time. They agreed unanimously that he had committed murder with malice. When they began deliberating the sentence, however, the initial vote was nine to three for the death penalty. (p. 351)
Death it was.
Ruby shot and killed Lee Harvey Oswald who shot US President John F. Kennedy.
As detectives escort a handcuffed Oswald through the basement of the Dallas Municipal Court Building, dozens of journalists, anxiously waiting to get a glimpse of Oswald, shout questions. Ruby, a Dallas striptease nightclub owner, is in the scrum. With neither finesse nor concealment, Ruby pulls out his gun and fires, letting Oswald have it in the gut.
The shooting is captured in film, still photos, and national television. Next to the shooting of President Kennedy two days earlier on 22 November 1963 (also captured on national television), this is the most celebrated news event in Dallas, a.k.a. Big D. Those who do not witness it live on television later see it again and again and again on the news.
Conspiracies to this day run amok. Was Ruby Oswald’s collaborator? Was he a pinko commie (communist) like Oswald? Did Ruby kill Oswald to silence him? Was Ruby part of or connected to the mafia underworld that might have been behind President Kennedy’s assassination?
The actus reas was never seriously in dispute. Ruby’s means rea was. Did he act with malice? If yes, he faced death. If not, he faced a maximum of five years in prison. Death is different. Good, qualified, experienced defense lawyers tend to play it safe when imposing the death penalty is in the jury’s (or judge’s) hands. With suicide, accident, natural causes, and self-defense not available as defenses, Ruby had two viable defenses: acting without malice – killing Oswald in a moment of insanity or passion (acting in the heat of passion), and insanity – not appreciating the difference between right and wrong when he shot Oswald, not being capable of understanding the consequences of his actions. The former a partial defense, the latter a complete (affirmative) defense.
The easier, more digestible, more understandable (in law and in human behavior for ordinary jurors) defense was to go for a less-than-complete acquittal, to argue that Ruby acted without malice. The evidence supported this theory. Ruby may have been required to take the stand. But this might have been one of those compelling and last resort situations where the accused needs to be heard since this is what I call an in-the-mind defense. It would have risked putting Ruby on the stand (assuming Ruby agreed), but this is based on a cold reading of the events and with the benefit of hindsight.
The more difficult defense, indeed much risker one, was going for broke: arguing that Ruby could not have appreciated right from wrong at the time because of some mental disease; that he was in a “fugue” state having no awareness of what he was doing much like when sleepwalking. This required proving by a preponderance of evidence that Ruby shot Oswald when he was in the episodic grips of psychomotor epilepsy. This might sound strange, but the mind works strangely, especially when it is compromised by physical trauma and external stimuli (see Parting Vignette).
Belli was well-suited to advance this defense. He was one of the best if not the best lawyers in the US at the time, proficient in using and eviscerating medical experts. He had criminal defense experience. He had used mental health defenses in the past. He was a skilled examiner and cross-examiner. He was a virtuoso, a gifted orator, a sartorial dandy. He was the King of Torts. And in his own opinion, without a doubt, the man for the job. He was, after all, Melvin Belli.
Medicine then was not what it is today. The average person’s ability to follow and accept exotic mental health defenses in explaining criminal behavior remains limited today. In the 1960s, it would have been even more challenging. Also, the literature on psychomotor epilepsy was inexact and inconclusive. Research was ongoing but was appreciably deficient for making definitive findings. Reading electroencephalograms (EEGs) – the most objective scientific tool in measuring electrical activity of the brain and upon which Belli would anchor his case in proving, along with other evidence of Ruby’s familial and personal history and off behavior, his insanity or being in a fugue state when he pulled the trigger – was far from an exacting science. Experts reasonably (and unreasonably) disagreed.
By asserting insanity as his defense, the judge would instruct the jury that Ruby (the defense) had to prove “by a preponderance of believable evidence” that he was insane “because the law presumes every man to be sane.”
Successfully running an insanity theory of the defense is a mighty tall order even under the best of circumstances. Running it successfully before a Dallas jury at that time would have been considered by any experienced lawyer a virtual improbability. But Belli did not see himself as just any experienced lawyer. And not for want of advice did he think that his chosen theory was a virtual impossibility or that it was not the best or most ideal defense circumstances considered. Ruby’s original lawyer, Tom Howard, an experienced Texas criminal defense lawyer who knew the law, local customs, and the community where the jurors would come from, resigned from the defense team in protest to this throw-caution-to-the-wind theory over the safer without malice option. As one of the prosecutors, Bill Alexander, put it after the verdict in what I view as an insincere, hypocritical lament:
He [Belli] took a good five year murder without malice case and made it into a death penalty for his client. He put on this god awful defense and day by day Jack melted–he just looked worse and worse. He was a pitiful object by the time the trial was over. Instead of being a hero, Belli was bringing out all this stuff about Jack’s mother being in an insane asylum and how Jack himself was sick. He just wanted to get on the stand and say ‘I shot the guy because he killed my President,” but Belli hacked away at his family in public. It was humiliating for Ruby. I actually felt sorry for him. It took away whatever dignity he had left. (p. 352).
Belli may have rolled the dice. But if this was “a good five year murder without malice case” as Alexander claimed post-conviction and post sentencing of death, why was Ruby charged with murder with malice? Hindsight may be 20-20, but I am willing to go out on a limb and say that based on how Ruby was prosecuted, based on the prosecutorial shenanigans and law enforcement proclivity for mendacity, coupled with Prosecutor Henry Wade’s desire to etch another kill-knot to his illustrious string of men and women sent to the gallows (24 out of 25), not to mention the pro-prosecution/pro-conviction judge of modest intellect and integrity, and so on, the die had been cast long before Belli entered the picture.
Ego aside (never believe in one’s press), Belli was far too experienced not to have known that it would take what is known in American football as a Hail Mary pass – sending the receiver to the very end of the field with seconds to go and rifling off a pass and pray Hail Mary mother of god that it is caught in the opponent’s end zone before the clock runs out – to win this case. He understood the odds being against him. But he also understood that if Ruby stood a chance under any theory of defense, he would need to be speaking to the appeals judges as he addressed Judge Brown through the countless oral and written submissions he would make. Ruby’s chances for a fair and impartial trial looked grim. So why not roll the dice? If unsuccessful, a trial record (transcript) replete with errors committed by Judge Brown, starting with not changing the venue, would likely yield a reversal, allowing Ruby to live to fight another day in another court in another venue, before another judge, and maybe even under the other theory of a defense: lack of malice.
Ruby’s death conviction would have been anticipated. Dallas was on trial just as much as Ruby. Somebody had to account. A guilty verdict would send a strong message that in Dallas, and in Texas, the rule of law still applied. Public sentiment was with Ruby, but the insanity defense gave little room for anything but a guilty verdict. And once the jury had decided that Ruby acted with malice (for which there is evidence of little to no deliberation) – this “jew boy”, closet homosexual (insinuated not proven), commie (insinuated not proven), potential Oswald co-conspirator (insinuated not proven), and strip-tease club owner (in God-fearing Texas) – what else could you expect but a death penalty sentence. Arguably, things might have gone differently if a “no malice” defense was run which also would have required Ruby to take the stand and be subjected to grueling cross-examination. Arguably. I am sanguine enough to speculate that that jury, at that time, at that place, before that prosecution-leaning judge, would have found malice.
There is a reason why the prosecution insinuated that the “jew boy” was likely a homosexual communist with potential ties to Oswald and others. By opening and leaving ajar the conspiracy door and inviting the jury to indulge its imagination at that time when bigotry was the norm, homosexuality was condemned, communism was seen as a genuine threat to America and the American way of life, the prosecution was priming the jury. Priming it to look beyond the evidence. Priming it to return a “just” verdict of death.
The trial was as colorful as it was unruly. Judge Brown was as partial in his rulings as he was ignorant of basic rules of evidence. The prosecution played dirty and was unethical at times – winning by just about any means, and seeing Ruby killed by the State of Texas, was Prosecutor Wade’s mission. Not justice. Law enforcement officers lied with abandon. Even the prosecution medical experts seemed primed and coached – as were other witnesses for the prosecution. Shocking as it may seem, I am not. I’ve seen and experienced a lot worse.
Death is different in that more so than in other cases, once the accused is in the prosecutor’s crosshairs, some are willing to take liberties with the professional code of conduct and cuddle sharp, deceitful, and contemptible practices. Reputations are on the line. Elected prosecutors with future political ambitions crave the kill-verdict once the charges are made. The community gets whipped into a frenzy. Even if not initially for death, by the time the prosecutor has spread his gospel of what the facts are and why the accused deserves death, the community wants it, and it too may even crave it.
Imaginative and combative, the defense may have also stepped on some ethical lines, but nothing that would warrant anything other than warning or a rebuke, certainly not a sanction. As risky as the theory of defense was, Belli delivered the goods. A different jury under different circumstances might have acquitted Ruby. Belli’s courtroom performance was exceptionally good, masterful, even if occasionally over-the-top. His sidekick, Joe Tonahill, an experienced Texas criminal defense lawyer (who might have drunk too much of Belli’s Kool-aid and does not appear to have had any qualms over Belli’s selected defense), was also formidable, exhibiting occasional brilliance.
There were also some very fine trial advocacy moments on both sides. No weak links on either team. All seasoned, all battle-tested, all committed. If only Judge Brown had been more competent and fairer. But then had he been fair and unbiased and impartial, he would put justice over fame and financial interest (he planned all along to write a book on the trial). He would have removed the case to a different venue – but then he would have been off the case, replaced by a judge in the new venue. And therein lies the rub
Ruby’s conviction was ultimately reversed. A new trial was ordered at a different venue. Belli was long gone – fired by Ruby. But give credit where credit is due: but for Belli’s and Tonehill’s efforts in making a record, Ruby’s conviction might have stood. Hence the saying: God may know but the record must show. Relentlessly pressing on key points for proper rulings, such as changing the venue, keeping out evidence is constitutionally protected, making offers of proof of evidence improperly excluded, forcing the prosecution to take outrageous positions knowing that the biased judge would reflexively adopt, is an essential part of defending. When not forcing judicial errors, making sure that unforced judicial errors are clearly and unequivocally reflected in the trial transcript is essential in resuscitating a client’s case that has been lost at trial.
Kennedy’s Avenger is an excellent read for any criminal defense lawyer or prosecutor, whether practicing in a common law or civil law system, whether in a domestic or international(ized) setting. I cannot recommend it enough. Here is why.
As a young lawyer I read transcripts of famous trials, books by the greats and near-greats, watched trials whenever I got a chance, and dissected films that had great court-room drama. Anything that would help me better understand the art and science of trial advocacy. Kennedy’s Avenger brought me back to those formative years of my 40-plus year journey as a criminal defense lawyer. Though non-fiction, it reads in the words of one of the truly great American trial lawyers, Louis Nizer, like a dime novel (by which he meant a good, fast-paced, accessible mystery novel).
Aside from its riveting narrative, it is replete with lessons and tips. Its real value is in the strategic thinking and attendant tactical maneuvering by both prosecution and defense as expertly recounted by the authors. Though the trial was before a jury and not a panel of judges, makes no difference. Yes, there are theatrics as well as gamesmanships for the jury as each side presses to make or unmake or reduce the impact of salient points that could tip the balance on an issue relevant to the theory of the prosecution or defense, but they are informative, nonetheless. There are also ethical issues worth pondering over. The quick thinking and witty repartee revealed by the record proves just how being in the moment, being eminently prepared, being focused and attentive, being anticipatory while also spontaneous, are essential to a good presentation.
Dan Abrams and David Fisher do a marvelous job educating the reader on many of the intricacies and subtleties of the US and more specifically Texas criminal procedure. Though neither have practiced criminal law (Abrams is a graduate of Columbia Law School), they are adept in cutting through the mountainous amount of information at their disposal and focusing on the essentials. In doing so they weave a balanced and informative narrative that fascinates. The fact that the co-authors did not agree between themselves on the wisdom of Belli’s strategy, had the added benefit of giving the reader a particularly thorough analysis.
To say anything more would spoil the experience of reading this excellent book.
Well, maybe one more thing: my two cents on Belli’s theory of defense.
We do not have much on what discussions had taken place on which of the two theories to select, so anything offered by me on this would be like reading the tea leaves. Belli was a phenomenal lawyer in his day. The King of Torts. He was the father of demonstrative evidence. He was the expert on medical malpractice, having authored six volumes on the subject. He had vast courtroom experience, including in criminal cases. Though he was also an outsider (from San Francisco), he had successfully tried complex cases before juries throughout the US.
Despite all of this, I have to wonder whether his ego got in the way: the allure of introducing a novel theory of defense to add to his many other first. It is unclear to what extent Belli communicated to Ruby the difficulties and risks in selecting this theory; exploring the pluses and minuses of the two viable defenses for Ruby to select (his case, his instructions). Presumably Belli did.
My good friend Alan Yatvin (who turned me on to this book) and I agree that Belli may have fallen in love with his theory of the defense, to the exclusion of the other available, easier to sustain, and more jury-appealing theory of no malice. Like believing in one’s own press and exceptional gifts and believed innate abilities to see far beyond others, falling in love with a theory of defense can be dangerous for the client. That said, we as trial advocates need not always play it too safe, for that could lead to ineffective representation. What matters most is to select a theory of defense after exhausting all avenues of inquiry and after gaming out all known pluses and minuses and all potential issues and challenges. After such due diligence, all that remains is to hope you selected the right theory of the case with full appreciation of the strategies and tactics that lie ahead.
I highly recommend Kennedy’s Avenger – Assassination, Conspiracy, and the Forgotten Trial of Jack Ruby.
Parting Vignette
I had a client back in my public defender days in the late 80s early 90s in Alaska alleged to have attempted to hold up a grocery store. He had been accused of shoplifting a bottle of Tylenol from a Safeway store earlier on the same evening and was arrested for trying to rob the place. Stewing and upset because of what he felt were unfair accusations about shoplifting, he returned to the store to make a point, not to rob it.
He walked in, told a clerk he had a gun and demanded money and took $200. Another customer and a store employee wrestled him to the floor and held him for the police. On the eve of trial, I informed the prosecutor that medical experts had discovered that my client had a condition called central pontine myelinolysis. The disease causes memory lapses and affects one’s ability to reason and think clearly. The memory lapses explained the shoplifting. The client had previous experiences in which he had forgotten that he had picked up an item in a store, left without paying for it, and returned to pay when he found it in his pocket.
The client returned to the store on the night of his robbery arrest not to hold it up, but because he was embarrassed and angry and thought he could show the store employees what a real robbery was like. He planned to wait at the store for the police to arrive and return the money. He was apprehended before he got the chance. The malady was new to the forensic psychologists who regularly examine criminal defendants for Alaska courts. Medical experts testified that central pontine myelinolysis is a rapidly progressing, fatal disease whose victims are often paralyzed and eventually lapse into comas. The client was offered treatment as opposed to a bed in a prison cell.
Viewed outside the courtroom, this defense theory may sound wacky. Even after credible medical expert testimony is offered, some are reluctant to accept scientific results – especially when experts are not entirely in synch. Unlike Belli in defending Ruby, I had no other option but to run this defense. It worked. It worked in part because the expert medical testimony was consistent, and because this was not presented to a jury, and because we had a reasonable prosecutor and a good judge. The stars were aligned. Not so for Jack Ruby.
This book review brings an end to the lazy summer frolics and indulgences while vacationing. More reviews will follow, but for now, happy autumn!
Postscript: Thanks to Philadelphia trial lawyer Harry Kane, who loaned Alan Yatvin this book to read at the beach while visiting me on the Island of Ikaria, Greece. Alan, knowing I would want to read the book, too, got Harry’s consent to leave it behind with me. As someone who is happy to loan a book, but pathologically unable to give one away, I appreciate Harry’s generosity.
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