OSWALD GOES ON TRIAL : British TV Has Created the Courtroom Drama That Might Have Been

Jury foreman Jack Morgan stood up to answer the all-important question: Had the jury reached a verdict in the case of the United States vs. Lee Harvey Oswald?

Morgan, a portly printing-machinery salesman, solemnly handed over a piece of paper. The clerk showed it to the judge and then turned to face attorneys and spectators. “We find the defendant, Lee Harvey Oswald, not guilty,” he read.

Courtroom spectators erupted in emotional clapping and cheering. Hearing the reaction behind him, government prosecutor Vincent Bugliosi, famous for successfully prosecuting Charles Manson, leaped to his feet with a yell.

The outburst would prejudice the jury, he cried in protest to U.S. District Judge Lucius Bunton. “Sickos,” he said loudly, looking directly at the spectators. “You’re sick.”

The reading of the verdict was planned; it was one of two possible endings to the court proceedings--the trial that Lee Harvey Oswald never had--that took place last summer in, of all places, a London television studio. The trial wasn’t over yet, though: The production schedule dictated that jurors turn in both a not-guilty and a guilty verdict halfway through the taping. The jury would then finish listening to the evidence, reach a conclusion and leave directions as to which verdict should be aired.

What wasn’t planned was the outburst in the courtroom. The attorney for the defense, Gerry Spence, who in real life gained national attention representing Karen Silkwood’s family, had coached the 60 spectators, who, with a handful of court functionaries, were the only professional actors involved in the trial.

Bunton quickly told jurors to disregard the audience’s reaction and instructed them not to consider it in their deliberations.

The outburst was a surprise; Bunton didn’t know that Spence had set it up. “I would have warned the audience that they would not have any displays of emotion when the verdict was read,” Bunton says now. “And if they had, I would have had the marshal clear the courtroom.”

THE INCIDENT WAS YET ANOTHER IN A string of tense moments that threatened to shatter the credibility of--or, worse, halt altogether--a project that no one else had ever undertaken in the 23 years since President John F. Kennedy was assassinated in Dallas’ Dealey Plaza. London Weekend Television, which produces shows for independent TV in Britain, was bringing Lee Harvey Oswald to trial. All the evidence unearthed since the assassination was fair game, including the controversial movie of the shooting made by amateur film maker Abraham Zapruder.

Unlike a version filmed by ABC some years ago, there was no script for last summer’s three-day trial, 5 1/2 hours of which will be aired on Showtime Nov. 21 and 22, the anniversary of the J.F.K. assassination.

Instead of having an actor play Oswald, a poster stood in for the defendant. And there was no predetermined outcome.

A jury that was picked at random from the federal jury rolls in Dallas heard the case argued by two of the best criminal lawyers in the United States. Actual eyewitnesses to the assassination and participants in subsequent investigations testified. A real U.S. District Court judge presided in an exact replica of a Dallas federal district courtroom. Each participant had been flown to London at LWT’s expense. The project cost more than $1 million. It was not an easy project to put together. The combination of subject matter, format, lawyers’ egos, witnesses’ fears, distance from home, time constraints and the presence of television cameras created such tension that the production threatened to implode several times. Inevitably, compromises had to be made.

But through it all, the trial’s integrity remained intact. “If you didn’t know the subtle issues that have existed throughout the years,” says Bugliosi, “I don’t know whether you would be able to appreciate what was done at this trial. No major issue went unaddressed.”

And Spence, despite his feeling that the trial suffered because of the time constraints imposed by television, says that “these people at London Weekend Television made a very valuable contribution, a brave one, an ambitious one.”

“I don’t think that this thing would ever have been done in this country,” says Spence. “There are certain fears in this country about getting too close to this sword. If you get too close, you will cut your head off.”

The idea for staging the trial developed in Britain. A few years ago, Richard Drewett, a lean, severe man who once worked as a journalist, came up with the idea of doing a modern-day trial of King Richard III, long suspected of murdering Edward, Prince of Wales, and Richard, Duke of York, in the Tower of London in 1483. When that show was a critical success, Drewett, who became executive producer of “On Trial: Lee Harvey Oswald,” and Mark Redhead, an associate producer at London Weekend, set out to find an encore.

“We drew up a list, really, and Oswald emerged as the front-runner,” Redhead recalls. “We wanted to do something more modern and with a little bit more bite. Lee

Harvey Oswald is the obvious character. The assassination was the crime of the century.”

Drewett and Redhead began working two avenues simultaneously--looking for money and gathering information. It took three months to nail down a commitment from Independent Television’s Channel 4 in Great Britain and six more months to sell the program in the United States.

Meanwhile, Redhead hired two British researchers, Richard Tomlinson, 28, who has double Ph.D.s from Cambridge, and Kerry Platman, 29, who had worked for a year at the Los Angeles Times on a Fulbright scholarship. I completed the team in Dallas.

We plowed through the 26 volumes of Warren Commission findings and the 12 volumes of the House Assassinations Committee report. The British researchers went to the British Museum, the University of London’s United States Library and a huge newspaper library in a rather dismal part of north London to find newspaper clippings and books written by conspiracy theorists.

We drew up dossiers on witnesses, trying to determine which ones were most important. “You might say we climbed to the top of a hill of books and, from that lofty position, tried to survey the panorama,” remembers Redhead, 30, both a former journalist and Shakespearean actor.

By November, 1985, we were ready to approach the witnesses. But we had to find them first, and many hadn’t been in the public eye since the assassination.

“It was prosaic work, really,” recalls Redhead. “The business of sifting out people is not desperately glamorous. It’s sort of like detective work on a rather grand scale. There is a lot of excitement when you get through to somebody or you get an address or phone number of somebody who is considered key. The greatest cheers went up for the ones who were hardest to find.” Dallas resident and J.F.K. assassination historian Mary Ferrell helped find leads that Redhead, Tomlinson and Platman followed up by telephone from England. The staff of the National Archives in Washington helped too, as did conspiracy buffs.

Among the hardest witnesses to locate was Harold (Hank) Norman, one of the three blacks who stood at the window just one floor below the one Oswald allegedly used to fire the fatal shots.

By running a driver’s license check, I found an address and telephone number for Norman--who was apparently still living in Dallas--but had no luck getting him by telephone.

About a month later, when Platman was in town, we went to the address, a run-down apartment near Baylor University Medical Center. A woman who identified herself as Norman’s former wife said he didn’t live there anymore, and she didn’t know where to find him. But, she said, Norman’s sister, who lived in an apartment downstairs, might be able to help.

The sister said she didn’t know where Norman was either. After more questions, she said she thought that he worked for a trophy company. I went to the Yellow Pages and called every trophy dealer in Dallas, asking to speak to Harold Norman. The last number was a hit. The secretary who answered put Norman on the line.

By the time the final list was drawn up, about two months before the trial, nearly all the key witnesses to the shooting had agreed to come to London.

There was, for example, Ruth Paine, the social worker who had given shelter to Oswald’s wife, Marina. Oswald visited his wife at Paine’s house the night before the assassination.

And Buell Frazier, the talkative salesman neighbor who drove Oswald to work on the day of the shooting.

And Dr. Charles Petty, the cool, professorial Dallas medical examiner who examined the X-rays and other physical evidence in the case.

The defense had no less an impressive lineup. There was former medical corpsman Paul O’Conner, who stood at the head of the autopsy table at Bethesda Naval Medical Center when doctors performed the autopsy on Kennedy, and former Dallas Police Officer Tom Tilson, who said he saw nightclub owner Jack Ruby fleeing from Dealey Plaza just after the shooting.

Marina Oswald declined to participate, as did former Texas Gov. John B. Connally, who was wounded when Kennedy was assassinated. One witness, Amos Lee Euins, who parks cars at a downtown Dallas garage, refused because he was afraid that he might be harmed physically. Several others who were involved in assassination events, he said, had lost their lives under mysterious circumstances.

It fell to Redhead to recruit the lawyers, and he started his research when the American Bar Assn. held its annual convention in London in July, 1985.

“I went around to loads and loads of lawyers, getting a sense of who were the leading lights,” Redhead says. Bugliosi and Spence “emerged as the naturals to take on the job.”

“Gerry,” Redhead says, “is the most sought-after defendant lawyer in the U.S. at the moment. He’s a gamekeeper turned poacher. He started out as a prosecutor and did work for insurance companies and then, as he tells it, he saw the light one day like St. Paul on the road to Damascus. He became a representative of those people he’d been fighting.”

Bugliosi had similar fame on the prosecution side, having won convictions in the celebrated Tate-LaBianca murder trial in Los Angeles.

Redhead approached both men on a trip to the United States last May. And although he says he offered to pay them “peanuts,” they accepted.

“I have consistently turned down every type of court case in an artificial setting,” says Bugliosi. “It’s just not what I want to do. But when they pointed out there weren’t going to be any actors, and no script, that appealed to me. And that there would be a real jury from Dallas and a federal judge, and the jury could go any way they wanted--this was unprecedented.”

Spence says, “What we were dealing with was a potentially historical document, and I thought that it might be satisfying to be involved.”

The historical significance appealed to Bunton as well. But Bunton was not the producers’ first choice.

For advice, Redhead went to U.S. District Judge Joe A. Fish, a youthful-looking man, newly appointed to the bench, whom the Dallas researcher knew socially. Redhead wanted a seasoned jurist, one who had gray hair and looked like a judge. Fish suggested U.S. 5th Circuit Judge Patrick E. Higginbotham.

Higginbotham listened to the request, thought about it for a few days, then declined, saying that there was a rule against federal judges being involved in productions of this sort.

This was bad news. Presumably, if a rule precluded Higginbotham from sitting, it precluded all federal judges from participating. But Redhead, undaunted, made the offer to Judge Robert M. Hill.

Hill looked up the rule that Higginbotham cited, and decided it wasn’t the issue. But he couldn’t preside because he had to sit on a 5th Circuit Court panel in New Orleans.

Hill suggested that Redhead ask District Judge Harold (Barefoot) Sanders. Sanders agreed. Spence and Bugliosi were notified. Spence objected: Sanders had been U.S. attorney for the northern district of Texas when Kennedy was assassinated and, in that capacity, had been peripherally involved in the case. What Spence mainly objected to, though, was that Sanders had been a prosecutor, and Spence had been warned that Sanders had a reputation for being tough on the defense.

Redhead was fast running out of older, gray-haired Dallas federal judges. Another judge wasn’t interested; still another had just left on a three-week vacation to Europe. Hill, approached once again, turned Redhead down again, but volunteered to talk to judges outside of Dallas who he thought would be good for the project. One of them was Bunton.

Finally, the trial had a judge.

RECRUITING THE JURY was no easier. Prospective jurors tended to be skeptical, and not unreasonably. They were contacted by telephone in early June by a stranger claiming to represent some company called London Weekend and offering an expense-paid, weeklong trip to England to take part in a television production that could not be discussed.

And, before these calls could even be made, the team needed names and numbers. Initially, Redhead planned to pay a Houston market-research firm several thousand dollars to locate prospective jurors. I argued that the jury ought to come from Dallas, where Oswald would have been tried had he lived, and suggested compiling a list of people who had previously served on juries. Redhead agreed.

Redhead and I went to see the assistant clerk who kept the jury rolls, but we were told that the rolls were not available to the public. Asked who could intercede, the suspicious clerk suggested that the judge in charge of juries that month might be able to help.

It was one of those serendipitous meetings: The judge that month turned out to be Fish, who was already intrigued by the project; he was in his chambers and free to see us.

He immediately picked up the phone, called Chief Clerk Nancy Doherty and asked her to come to his chambers. After Redhead explained the project to her, she said she would have her deputies make a random list of former jurors, including addresses and telephone numbers.

The list was ready a few days later, and researchers in Dallas and London began making the calls. It took more than 60 names to get 12 jurors--eight men and four women--and two alternates. Spence objected to some candidates on the basis of their age or their occupations. He didn’t want any jurors who worked or had worked for an insurance company; they were inclined to lean toward the prosecution, he felt. And he didn’t want any jurors over 35, who would be old enough to clearly remember the assassination and its aftermath.

One woman was so uncertain about the offer that she checked my credit rating. Others checked with one of the judges or with the clerk’s office.

Another woman refused to believe the offer until she could meet with me face to face and see some literature--an annual report, for instance--showing that the television company, at least, was legitimate.

THE PRETRIAL MEETINGS INLONDON, two days before the trial began, demonstrated how seriously the lawyers were taking the production.

“My state of mind, and I’m sure Gerry felt the same way, was that we were having a real trial,” Bugliosi says. “I don’t think anyone said this is television and we could ignore this and ignore that. We didn’t take it lightly.”

Bugliosi, high-strung and feisty, did nothing but prepare for the trial for 3 1/2 months. “I interviewed my witnesses over and over again. I spoke to some of Gerry’s witnesses five to seven times. I proceeded in the same identical fashion in preparing for this trial as I would have in any other.”

Spence, a big, hulking man who faintly resembles singer Johnny Cash, says: “I worked as hard in preparation of this trial as if I had defended Lee Harvey Oswald in the flesh--and as I do in any murder trial. To my way of thinking, there wasn’t a stone left unturned. But if he had lived, we would have been able to unlock many of those secret doors that are still locked.”

In those pretrial meetings, several of which were held in a suite at the Savoy Hotel overlooking the Thames, Bugliosi and Spence were continually at each others’ throats. At least once, Spence left the room, threatening to pull out of the trial. Bunton later remarked that if they’d all been back in Midland, Tex., he’d have jailed them both for contempt.

One of the touchier disagreements was over whether anything Oswald said after he was arrested would be admissible. “He was arrested pre-Miranda,” Bunton says, referring to the U.S. Supreme Court ruling that requires police to advise the accused of their rights. “On the other hand, the state of Texas already had a law that required all confessions to be made in writing, and the defendant had to be warned that anything he wrote would be used against him. Obviously, Vince wanted to use everything because Oswald said some damaging things.”

Bunton ruled for the prosecution, arguing that when Oswald did talk, he was not coerced.

Other conflicts reminded observers that this would not be a perfect re-creation. Spence, in fact, left London saying he had “serious doubts” about the proceeding. He contends that some of the evidence should not have gone to the jury: “The question is, ‘Is this good entertainment?’ Yes. ‘Is this information that the public should have?’ Yes. ‘Is this information that should go to a jury?’ The answer is no. Some of it would be inadmissible under the rules of law. There was all kinds of inadmissible hearsay that got into evidence necessitated by the fact that this was a three-day trial instead of a three-month trial.”

Moreover, some evidence that he thought would be available wasn’t: “Some people estimate there are 500,000 documents locked up in the archives and the CIA that are sealed from the American public.”

Spence also had objections to the jurors. “You can’t try a case in front of people who are retired insurance executives or to the right of Gengis Khan,” he says. “Texas is conservative enough without taking the most conservative people. I screamed and hollered over the telephone one day about it until I actually hurt my side.”

Bunton, though, defended the jury. “I don’t think they went wrong in picking a jury,” he says. “Dallas division is a law-and-order division. They’re going to return more verdicts for the government than perhaps some other division. I don’t mean that as critical. That’s the kind of people that live there.

“If you’re going to be tried by your peers, that’s the way it is. Gerry wasn’t happy with it, but Gerry wouldn’t have been happy trying this case in Dallas.”

Another shortcoming, Spence points out, was the absence of those who refused to testify. “If it had been a real trial,” he says, “they would have been subject to subpoena.”

By and large, the witnesses Bugliosi wanted were there. “When you have the real witnesses, you can’t improve on that,” he says. Oswald’s wife, he notes, might not have testified in a real trial because of the rule that allows spouses to refuse to testify against each other.

The lawyers and the judge all agree on one aspect of the trial: the significance of the testimony.

“Never, ever was a witness in a hearing--either the Warren Commission or the House Committee on Assassinations--ever permitted to be cross-examined, to be tested by the skillful cross-examination of a trial lawyer,” Spence says. “The witnesses were, for the first time, put to the test of cross-examination, as very different views were developed.”

“I was very impressed with the witnesses,” said Bunton, after the trial was over. “They had done their homework, the experts had. They were good, truthful witnesses that told it like they thought they found it or saw it. Some of the witnesses didn’t make good witnesses--and that’s the way it is in a real trial.”

As Spence puts it: “The American public will have a marvelous chance to see live witnesses testify, and to judge for themselves.”