What If Oswald Had Stood Trial?

By Richard Zoglin

Twenty-three years after the fatal shots rang out in Dallas, questions about the assassination of John F. Kennedy still reverberate. The 1964 Warren Report concluded that Lee Harvey Oswald, acting alone, shot the President from the Texas School Book Depository. But 15 years later, the House Select Committee on Assassinations, while agreeing that Oswald was the murderer, decided he was most probably part of a conspiracy. Though some of the evidence leading to that finding has been discredited, conspiracy theories continue to proliferate, tracing the crime to everything from a Mafia cabal to the CIA.

Now an extraordinary television trial has tried to shed some light on the controversy. In On Trial: Lee Harvey Oswald, a two-part, 5 1/2-hour program that debuted on Showtime last weekend and will be repeated several times in upcoming weeks, the case against Oswald is argued for the first time in a courtroom setting under the rules of courtroom evidence. Real witnesses are examined by real attorneys, and the testimony is evaluated by a jury. The verdict: guilty of murder. Polled on a separate question, the jury decided by a majority vote that Oswald was the sole assassin.

This unique experiment in reality programming was conceived by London Weekend Television, which staged a mock trial of Richard III for British TV in 1984. Looking for another historical crime to "try" on TV, the producers turned to the Kennedy assassination. Unlike earlier fictional treatments like the 1977 ABC movie The Trial of Lee Harvey Oswald, the program has no script and (except for extras) uses no actors. Two prominent attorneys were enlisted to argue the case. For the prosecution: Vincent Bugliosi, 52, the former Los , Angeles deputy district attorney who prosecuted Charles Manson. For the defense: Gerry Spence, 57, who successfully represented Karen Silkwood's family in a suit against the Kerr-McGee Corp. Lucius Bunton, 61, a U.S. district judge from Texas, was selected to preside, and a jury was chosen from the Dallas jury rolls. (Oswald is represented by an empty chair.) All of them were flown to London for the three-day taping, which resulted in 18 hours of testimony; Showtime, the program's co-producer, plans to air the full-length version next year.

The program's research staff spent 18 months tracking down some four dozen witnesses, 21 of whom appear in the TV trial. Those testifying for the prosecution range from experts in pathology and ballistics to former Oswald acquaintances like Buell Wesley Frazier, who drove him to work on the day of the assassination. The defense witnesses include Dr. Cyril Wecht, a pathologist, who argues that a single bullet could not (as the official version states) have struck both Kennedy and Texas Governor John Connally, and others who give evidence suggesting that Oswald was the patsy in a conspiracy, possibly involving Oswald's killer, Jack Ruby. The trial includes a detailed examination of the famous film taken by Abraham Zapruder, including the horrific frames in which the President's head literally explodes from a gunshot.

Though most of the witnesses have testified previously, they have never before faced crossexamination. Both attorneys are persuasive advocates. Bugliosi deflates some of the more outlandish conspiracy theories with rapid- fire probes. Spence, a drawling, flamboyant courtroom performer, homes in shrewdly on ambiguities and unanswered questions in the official account.

Some questions seem rather conclusively settled. The Zapruder film, for example, shows Kennedy lurching backward after the shot to his head, implying that the bullet came from somewhere in front of the car. But the medical evidence leaves no doubt that both shots came from the rear; as one expert explains, the backward lurch could have been caused by an involuntary neuromuscular reaction to the devastating bullet.

Other testimony has the drama of the unfathomable. Perhaps most compelling is the appearance of Ruth Paine, the school psychologist with whom Oswald's wife Marina lived before the assassination. Holding up bravely under Spence's prickly cross-examination, she describes Oswald's actions before the assassination in articulate but quavering words.

Paine: It's important that people understand that Lee was a very ordinary person, that people can kill a President without that being something that shows on them in advance.

Spence: Is it really your purpose to try to defame this man in some way?

Paine: I think it's really important for history that a full picture of the man be seen.

Spence: Yes, so do I.

The show-biz demands of television do some damage to the program's credibility. Because it is not a real trial, witnesses could not be subpoenaed (Marina Oswald was among the few who refused to appear). The lawyers agreed to adhere to a time limit on questioning, and the number of witnesses was streamlined. Complained Spence after the taping: "All kinds of inadmissible hearsay got into evidence, necessitated by the fact that this was a three-day trial instead of a three-month trial."

Nevertheless, the participants contend, the program contributes importantly to the assassination record. "I defy anyone who is familiar with the Kennedy assassination," says Bugliosi, "to look at the 18 hours of tape or examine the trial transcript and say that the gut issues of the case were not addressed or were treated cosmetically." Even for casual observers raised on Perry Mason, On Trial: Lee Harvey Oswald provides a fascinating lesson in history and the law. And, not incidentally, TV's best courtroom drama ever.

With reporting by William Tynan/New York