27 JANUARY 1967, Page 11

Postscript to Warren

THE LAW

By R. A. CLINE

Ir is a mistake to assume that the appeal court of the House of Lords is the highest tribunal in the land. Lawyers and judges (especially judges) know better. There is a higher one still and it is the collection of short criticisms of legal decisions magisterially handed down in each issue of the Law Quarterly Review. For years Professor A. L. Goodhart, QC, has been cheerfully recognised as a one-man appeal court whose contributions to LQR were influential in moulding the law and were usually right.

But the Professor's participation in the Ken- nedy assassination controversy is of a very different order.. His emotions appear to be deeply engaged in the affair, to judge from the remarkably fierce review which he wrote in the Sunday Telegraph attacking the books by Mark Lane and E. J. Epstein on the Warren Commis- sion. And now in the current issue of the Law Quarterly Review he returns to the defence of the Warren Commission, and it becomes clear why he is writing at such a very high temperature about the matter.

For he sees the Mark Lane and Epstein books and the receptive reactions of the English press (and radio and TV) as part of the process of forging 'a most powerful anti-Anierican propa- ganda weapon.' And he begins his onslaught with the words: 'Perhaps the greatest mystery connected with the assassination . . . is that the English press as a whole seems to have assumed that there must be a mystery attached to it.' We are invited, therefore, to believe that the English (in a later passage the Professor throws in the Europeans) wanted to believe that Warren was wrong and that there was a conspiracy, and that some of the critics were inspired by anti- American feelings.

But it must surely be evident that there was a 'mystery attached to the assassination.' Hence the appointment of the commission, hence the American President's desire that the report should come out as soon as possible, because the American public, not just the anti-American English, were mystified. Whatever the ultimate truth is—and it will never be ascertained—there is a mystery at the heart of this extraordinary episode which continues to intrigue the world, so that the books, television films and articles (in- cluding Professor Goodhart's) continue to flow. If Oswald alone did it, his marksmanship was staggering in the period within which we know the shots to have been fired. If there were others conspiring with him, where are they now?

Professor Goodhart's implicit appeal to Anglo- American unity is wholly beside the point. To

be persuaded that Warren was right or wrong or that there is a doubt about the findings is not to take sides in the cold war. For my part, when I read as much as I could of the twenty-six- volume report, I was relieved by the commis- sion's findings that Oswald was the sole assassin and impressed by the massive material set out in the report. Was I then pro-American? Then came the Epstein disclosures as to the way in which the commission went to work and as to specific problems of evidence which were never satisfactorily resolved. Doubts were reopened. According to the Professor I was joining the cold war.

Epstein's thesis is that the real work was done by assistant counsel who worked under great pressure of time, collecting, sifting and evaluating the evidence and finally submitting their reports to the commission, who vetted, toned down, altered and finally accepted them, imposing as it were the commission's imprimatur. Epstein relied heavily on countless interviews which he had with members of the commission, senior counsel and, in particular, the young assistant counsel. The latter, according to Epstein, made some important disclosures to him strongly critical of the commission's methods and of their findings. Thus Wesley Liebeler, an assistant counsel, when asked what the com- mission did, replied: 'In one word, nothing.' This is Epstein's version. Now, however, it appears that Liebeler denies saying this and has written to Professor Goodhart that he and his fellows on the commission staff 'are particularly incensed at Epstein's misstatements or distortions .of the record.' In the bluntest terms, the Pro- fessor accuses Epstein of plain dishonesty. What Mr Epstein was told in the course of these interviews only another commission of inquiry could determine. But why in the world the neither anti- nor pro-American reader of Epstein's book should have assumed that the interviews were misrepresented, Professor Good- hart does not explain.

Even if these interviews had never taken place, the Epstein book has raised doubts which Pro- fessor Goodhart's essay does little to allay. Take, first, the question whether Oswald fired once, so that the bullet must have passed through the President and, unretarded by its course through his body, have reached and wounded Governor Connally sitting in front, or whether he fired twice. The fact that a bullet can pass through a body with such velocity may come as a sur- prise to many who are not seeking weapons to destroy Anglo-American understanding. An

FBI ballistics expert who had taken part in a test reproduction of the assassination was asked if it was probable that the bullet which passed through the neck of the President hit the Governor. He answered : 'There are a lot of probables in that. First, we have to assume that there is absolutely no deflection in the bullet from the time it left the barrel until the time it exited. . . ."It was entirely possible but I don't say that it probably occurred because I don't have the evidence.'

Well, then, was there a path through the Presi- dent's body pursued by the single bullet from its entrance in his back to its exit in the neck? For if there'was, this would support the Warren finding that a single bullet was fired. Professor Goodhart admits that there is a basic conflict between the FBI Supplemental Report, in which FBI observers reported 'medical examination . . . had revealed that the bullet which entered his back had penetrated to a distance of less than a finger's length,' and the doctors' evidence of their autopsy. And he says that the doctors 'unequivocally' pronounced in favour of a path through the body. They did not. They were unable to take probes; they simply deduced that there was a path. Presumably an X-ray would give a final answer. So there was no conflict between the FBI report (which was strangely precise if there was no foundation for its 'finger's length') and the direct evidence of the doctors. Nor does it follow that the doctors 'were com- mitting deliberate perjury,' as the Professor would have Epstein imply. Doctors can draw erroneous deductions as FBI agents can mis- recollect reports.

Is Goodhart guilty of gross loyalty to Anglo- American understanding and the Warren Com- mission, or is Epstein guilty of gross misrepre- sentation? It is no longer necessary to decide. It no longer matters what the truth about the assassination was since it can now never be ascertained even on the balance of probabilities, let alone beyond reasonable doubt. Ruby's role, Oswald's role, the assistant counsel's role, all are enshrouded in mystery, and assertions that there is no mystery will suffer the same fate as further attempts to dispel it. They will simply reopen the wounds of public anxiety which ought now to be finally closed.