In the Shadow of Kennedy's Murder (Part 3 of 3)

If you prick us, do we not bleed? If you tickle us,
do we not laugh? If you poison us, do we not die?
And if you wrong us, shall we not revenge?

-- Shakespeare, The Merchant of Venice, III, i

I do not know Gerald Posner personally, but I know of him quite well. During the mid-1990s, I represented a client suing him and his publisher over an advertising campaign for his book. The title of the lawsuit was "Robert J. Groden v. Random House, Inc., The New York Times Company, and Gerald Posner." How the federal judiciary handled that lawsuit, how it departed from precedent, and how it affected the future course of the law, are the primary subjects of this blog.

It is an unpleasant story -- as difficult to write as it is to absorb -- about otherwise bright men (and women) who simply lacked the foresight to anticipate the rapid development of this new communications medium, and the consequences that it would portend. They apparently assumed that, in issuing their edicts, they could falsify the facts of the Groden case to conceal what actually occurred, guarantee the silence of the attorney who brought it by disbarring him, and continue to tout their falsehoods in a line of subsequent citations, confident in their self-delusion that they could never be brought to account. These are judges who, just as one example, thought it okay to decide an unfair competition lawsuit by pretending to be completely oblivious to the complaining party's injured products, not even deigning to mention them. They are the paragons of judicial excellence and virtue that America offers as an example to the rest of the world. Both individually and collectively, they exercised shockingly poor judgment.

This is the personal message I convey to them here and now:

When Mr. Groden's matter came before you, the judiciary of the Second Circuit at both the district and appellate court levels, the graphical World Wide Web was in its infancy, and most practicing lawyers derided the use of keyboards as secretarial work. Nevertheless, attorneys who had bothered to familiarize themselves with the rudimentary technology understood even then the potentialities that it would soon realize. Hyperlinked briefs in Adobe Acrobat format on CD-ROM discs; demonstrative exhibits on videocassettes or laser discs; and Harvard Graphics slideshows, for example, heralded the use of sophisticated multimedia in litigation. Back then, the major outlets controlled the media and we were all consumers, rather than creators, of content. There were no blogs. There was no YouTube. "Syndication" referred to TV stations running repeats of old shows that few people watched. The innovative tools with which individuals could create compelling content for large audiences would soon become available to anyone with a desktop or laptop workstation and access to a network.

I explicitly warned the courts then that, due to the timelessness of public curiosity about the Kennedy assassination, this matter could not successfully be swept into the dustbins of the federal court archives -- that it would resurface, I warned you that the true facts of that case would emerge without intermediation by the mainstream news media. These were my parting words to you then:

"Lying may be entrenched in public and private life, but it has no place in judicial decisions. The federal judiciary cannot and will not succeed in maintaining, protecting, nourishing and nurturing the lies that were told by judges in the case of Groden v. Random House. They are disproved by the facts of the documentary record, and those facts are uncontroverted and incontrovertible. They will emerge to the light of day, and when that happens, I believe that the prestige and credibility of this Court will incur damage."

You ignored my warning. The meaning of this technological innovation -- the Internet -- to us is that the false judicial reports of the Groden proceedings, and the judiciary's continued reliance upon them as authority in numerous subsequent citations, cannot be maintained as viable precedents any longer. Indeed, false judicial reporting is itself an artifice doomed to extinction. The formerly untrammeled power of the federal judiciary to falsify reports of judicial proceedings with practical impunity, which is precisely what occurred in the Groden litigation, is now constrained by the presence of the World Wide Web in a way that was never possible before its advent. The threat of employing Stalinist-type disciplinary tribunals to punish attorneys for criticizing judges will be insufficient to contain exposes of intentional dishonesty, deceit, and falsehood. In due time -- not merely as a result of this blog, but cumulatively from those that already exist or are bound to follow -- as more such incidents are brought to light and lawyers are emboldened to resist, rather than meekly acquiesce, neither the organized bar nor the public will stand for such underhanded, overreaching practices. And, just as the pervasiveness of the Web has altered the ways in which the public relates to mainstream media and both the legislative and judicial branches of government, so too, it will change their relationship to the judicial branch.

In today's world, no one is immune from humiliation and disgrace. No one, no matter what his station or his claim to legitimacy, authority, and deference.

Round One was yours. You had your say, and you spread your libel. On behalf of the Government of the United States, you told the press, the Bar, and the public that the critics of the Warren Commission failed to produce any evidence of a conspiracy to kill President Kennedy, which was an absolutely intentional false misrepresentation as your own court records show, and you smeared the attorney who confronted you with that evidence while representing one of those critics. On behalf of the Government, you told the press, the Bar, and the public that the dispute over President Kennedy's assassination was essentially meaningless because it was not susceptible to factual determination. And you changed the law for the specific purposes of thwarting us from proving otherwise and defaming us. However, there has been a change in circumstances. The Web has matured, with the result that you can no longer control public perception of what has occurred in a case before you. Your dishonesty and deceit cannot withstand scrutiny. No longer may you hide like cowards from the public's gaze. Now, it is my turn to respond with the facts, using the exact same court record you strained to avoid fifteen years ago. Together, we shall see whom the public chooses to believe, whom they regard as trustworthy, and who not.

I have returned to the public forum to make good on my promise to you; to ensure public access to the honest services of their judiciary; and to make actions such as those I now perform safer for those who will follow in my wake.

Not for myself, nor for Robert Groden, but for our generation, for the afterborn, for the damage that you did to their right to know, for your sanctimony and hypocrisy, for your cronyism, for your defense of the indefensible, for your complicity in the cover-up of a horrendous crime, and for your poisoning of the judicial process . . .

. . . at long last, the time of reckoning has arrived. Prepare to be judged.

Next: Woody Allen Takes the Money Without Breaking a Sweat (introducing the New York Civil Rights Law)

Coming: How they changed the law for Robert Groden; why they found it necessary to change the law; the mechanisms they employed; the evidence they ignored; the long-term consequences; and a fundamental disagreement over the role an attorney must play in the judicial process.

In the Shadow of Kennedy's Murder (Part 2 of 3)

Today, as I write this, the Los Angeles Times carries an AP dispatch reporting the conviction by a German court of an 88-year old man for murdering three Dutch civilians in 1944, as part of a Nazi hit squad during World War II.  And The New York Times reports the arrests of two men charged with murdering five teenage boys in Newark in 1978.  Such "cold cases" are neither uncommon nor uncommonly reported by the American news media.  Only the major political assassinations of the Sixties, including that of John F. Kennedy, are swept under the rug.

While working for CBS News during the mid-1970s, years after the assassination, I smelled the fear of it that lingered over that organization. I learned of many things that a small handful of senior news executives, under the close personal supervision of their president, Richard S. Salant, hid from most of their own employees -- including their own esteemed anchorman, the late Walter Cronkite, whom they finagled into reading before a teleprompter a script he neither wrote nor vetted -- as well as from their viewing audience, to reassure them and allay their doubts that one man, acting alone, could have wreaked such havoc. Unseen by their viewing audiences, they courted former Warren Commission member John J. McCloy's advice on their script, conscious that Lyndon Johnson and J. Edgar Hoover were watching as well. At the same time, CBS News insiders and outsiders alike encountered stone walls when attempting to call these executives' attention to evidence in conflict with the official lone assassin thesis. There was a cover-up in the Kennedy assassination and, under its original ownership and management during the Paley-Stanton era, the executive hierarchy of CBS News was a part of it. I might have pursued a career in broadcast journalism elsewhere, however, I abandoned such ambitions because I could not tolerate the painful awareness that the biggest news story of my lifetime was somehow off limits, rendered impenetrable by those invisible constraints to which I alluded earlier. Journalism, ostensibly a noble calling, does not pay well to those below the superstar level; it doesn't pay nearly enough to justify such disillusionment. Fear of the Kennedy assassination and what it actually meant still lingers over us all, whether or not we are conscious of it. It is still evident in the defensive ridicule with which the mainstream news media treats the subject.


After earning a law degree and spending nearly 20 years in practice, I saw similar fear among some of the leading icons of the law profession. As I have only begun to discuss, it is evident in the manner through which members of the federal judiciary quashed the potential for putting the assassination under a forensic microscope in a court of law. Fear of the mere potential that the federal courts might be confronted with the need to decide whether a conspiracy took the life of an American president prompted them to run like children frightened of the bogeyman. I cannot rightly call it a spectacle, because the ways in which they shunned the controversy, employing outright, lies and deceit to suppress incontrovertible record facts, went largely unnoticed by the scriveners of the law newspapers and their general media cousins, who accept court decisions as written and report them only from the official point of view, never bothering to probe the substance of an underlying court record, never raising critical questions concerning the honesty and integrity of a judge's ruling. As I also discuss in this space, the presumption of honesty that attaches to judicial rulings is one of the great blindspots and vulnerabilities of our justice system, reinforced by professional disciplinary rules for attorneys that inhibit them from exposing outright fraud and ostracize them from "the guild" if they try.

One of the aspirations of this blog is to squarely confront that fear and vanquish it because, Unless we do, it will remain with us the rest of our lives and taint whatever legacy we wish to leave to future generations. More generally, this is a case study of how -- in a noisy, distracted, and disconnected society -- dissent that poses an imminent threat to the status quo can be crushed, and the dissenters effectively discredited, without giving the appearance of violating democratic principles. In a society held together by faith rather than by brute coercion, appearances are everything, albeit they can be deceiving.

What do I mean when I write of this fear of the assassination that still hangs heavy over us? As a prime example, I point to one of the worst of the contemporary fearmongers: the self-styled journalist and former practicing attorney, Gerald Posner, author of the book Case Closed, who found his niche in public discourse on this subject as a nay-sayer.

In 1992, in response to years of quiet lobbying by Keven Walsh and other students of Kennedy's murder, and the sudden impetus given the subject by Oliver Stone's movie, "JFK", Congress passed the JFK Assassination Records Act, mandating the disclosure by government agencies of their documentary archives on the case. Posner's book was published the very day, August 23, 1993, that the first "new" batch of previously-classified documents, most of them having originated with the House Select Committee on Assassinations' investigation of the late 1970s, was released by the National Archives. The timing was not coincidental. At that time, Posner insisted that he knew what the documents contained, and that they would support his anti-conspiracy stance, even though he had not actually seen them and had no means of plowing through all of them before making that claim. The fact is, that the HSCA had determined that Kennedy was probably assassinated as the result of a conspiracy, and the secret investigative files that it unsuccessfully attempted to hide for 50 years contained evidence extremely damaging to the Executive Branch's official verdict that Lee Harvey Oswald acted solely on his own. Nevertheless, mainstream media institutions soaked up Posner's assurance because it relieved them of the burden of making their own evaluation of the evidence, and validated their own premature endorsements of the Warren Commission Report years earlier. Posner spoke irresponsibly and to protect the salability of his book, but the media gave him a pass. Moreover, they made him an instant media hero. More recently, commenting on a Freedom of Information Act lawsuit to obtain files related to Lee Harvey Oswald that the CIA has never released, Posner "said that if there really were something explosive involving the C.I.A. and President Kennedy, it would not be in the files — not even in the documents the C.I.A. has fought to keep secret." "C.I.A. Is Still Cagey About Oswald Mystery," The New York Times, October 17, 2009, pg. A11 .

Posner has shown a strange, psychic capacity to predict what the government's archives will or will not show, before having had the chance to examine them. In reality, he is an advocate for ignorance: Don't worry about the files; they won't change anything. Fearmonger in disguise, he is the media's annointed fear comforter par excellence, the anti-conspiracy "go to" guy of their first choice.

Whoa! The government is still hiding files on Oswald? All this was supposed to have been cleared up years ago. The conspiracy theorists are upsetting us. Let's go to Posner and get "the real deal." We are afraid, Gerald. Save us from those subversives who undermine our confidence. Tell us we have nothing to fear.

And, so, he complies. Equilibrium is restored. Dissent is marginalized. Our society resumes its placid existence.

Look now, captains of America's vacuous communications media, upon your damaged opportunistic hero. It was not us, but his own flaws, that ruined him. We gloat, not at him, but at you. We exult, not in his misfortune, but at your gullibility, humiliation, and discredit in the eyes of the world. Go! Feed your audiences endless retreads of the old Jack Bailey TV show, "Queen for a Day", now pretentiously disguised as the new "reality" genre yet still a haven for exhibitionists. Sell your clientele's anti-flatulence and erectile dysfunction remedies to your hearts' content. Your constituencies dwindle in number year-after-year. You can no longer afford to hire and retain credible contingents of bona fide journalists. Your new currency is amateur cellphone videos. You have run out of steam. When we want the news, we get it from the Internet.

In the Shadow of Kennedy's Murder (Part 1 of 3)

What I have written so far is merely prologue. I am about to explore how, solely due to the nature of his work on the John F. Kennedy assassination and the threat that his lawsuit presented to the established order in America, the case of Robert J. Groden v. Random House, Inc., et al. changed two important branches of law -- indeed, the United States Court of Appeals for the Second Circuit had to invent new law -- for the exclusive purpose of defeasing one man of the entitlements enjoyed by others prior to his lawsuit, even though his case presented no novel nor especially challenging issues. This week, however, as one of the harshest winters in recent memory begins to recede, I pause briefly to begin setting that case within its larger context: What is its place in the long saga of the Kennedy assassination controversy, and why does it matter?

Living my life, I have learned at first-hand, to my great discomfort and disadvantage, that there are some news stories that the American media cannot uncover, and some legal matters that cannot be brought before an American court of law. There are, in fact, invisible constraints upon our freedom of thought, our freedom to know, and our freedom to act upon our knowledge, which constitute the unwritten rules of living in America. These constraints impair the quality of my life as a citizen of a supposedly free country. The foundation of our society is our common faith in the myths we construct of our own history and in the institutions that uphold them. We live according to these myths because we believe they help us to survive, nay, that we require them to survive. We believe in our Constitution, yet it is merely parchment encased in glass, wholly dependent upon the good faith and honest intentions of fallible men and women to honor it and imbue its values with the aura of legitimacy. That common faith is at once our greatest strength and our greatest vulnerability, for when it is grievously wounded, the basic weakness of American society is laid bare.

More than a momentary interruption of continuity and confidence, the assassination of President John F. Kennedy struck deeply at that heart of American society: our common faith, and our ability to maintain an elemental cohesiveness in that faith against all challenges. The assassination was a homicide under Texas law, preceding the enactment of a federal statute criminalizing physical assaults against high federal officers. The federal government, however, de facto revoked the jurisdiction of Texas over the crime and confiscated the evidence, repositing all further investigative responsibility in an ad hoc presidential commission, which relied upon the FBI for its leg work. Quelling rumors and suspicion assumed priority over standard legal processes, with the unhappy result that the Warren Commission settled nothing, except to validate Lyndon Johnson's ascension to the presidency. Conspiracy theories were only perpetuated and our faith in government irreparably damaged. Sober and responsible members of the first generation critics of the Warren Report were not the cause; their only transgression was to expose the weaknesses and shortcomings of the Report which, in the absence of redress, inevitably fed the growth of speculation and doubt. Our nation owes these individuals, most of whom remain obscure to the general public, a debt of gratitude for their dedication, determination, hard work and, in some instances, self-sacrifice without any promise of reward or recompense.

A man died on the streets of Dallas that day. America's involvement in Vietnam escalated within months thereafter, lasting until the war's end in 1975. Some have argued persuasively for a linkage between these events, and that Kennedy did not intend to pursue the course followed by his successor. JFK's last surviving brother, Ted, delicately affirmed this belief in his posthumously published memoir, and there is an abundance of evidence to support it. An entire generation was thrown into turmoil. Besides its toll in human lives, the deficits incurred by that war would make it more expensive for them to purchase homes, more difficult for them to find decent jobs, more doubtful of what the American dream meant to them. Job security, affordable higher education, and, for many working people, a safe pension, became quaint and outmoded notions. Increasingly, they found themselves competing for scarce resources. America became more fractious. A man died and nothing was ever the same, or as good, as it had been.

When future historians look at that period, the Sixties, perhaps they will take account of the central themes tying the Kennedy and King assassinations to each other: All three men opposed the escalation of American military involvement in the Vietnam War. All three were dead and the official "lone nut" verdicts for each murder were cast in stone by the time Lyndon Johnson left the Oval Office. Notably, before their deaths both Robert Kennedy and Martin Luther King, Jr. had positioned themselves in the vanguard of campaigns for economic and social justice in America.

Yet, there is a second discernible pattern to the events of that era. It can no longer be disputed that the original and all follow-up commissions of inquiry into President Kennedy's death were waylaid from within. Allen Dulles, a member of the Warren Commission and former Director of the Central Intelligence Agency, withheld from the Commission vital information about government assassination plots against Fidel Castro. The Rocketeller Commission was headed by one of the Agency's original creators. The House Select Committee on Assassinations' liason with the Agency had personally coordinated its anti-Castro operations, however, his role was concealed from the Committee's staff. Likewise, the Pentagon withheld information about a scheme ("Operation North Woods") to foment violent incidents on American soil and blame them on the Cuban dictator in the hope of inciting a public outcry for a military invasion. By the time the HSCA was formed, the Pentagon had already destroyed many of its records from the early 1960s, claiming routine record retention practices. Over time, it became obvious that the public's disempowered gaze alone could not be relied upon to exact from public officials the candor required to dispel the questions and doubts about Dallas.

Whatever those future historians may conclude from these patterns, their musings will come too late to bring any comfort to the survivors of the Kennedy era. As a practical matter, through no fault of their own but owing instead to official intransigence and the passing of years, they were condemned to perpetual uncertainty and mistrust because the assassination could no longer be addressed through any legal apparatus, but only through historical and political analysis. Nevertheless, that should not prevent those living today from assigning justly deserved blame and demanding accountability for their having been cast in ignorance and subservience while American blood and treasure were squandered.

Today, a majority of Americans have no living memory of November 1963. We have deceived ourselves that we survived that crisis and overcame that tragedy. It's old news. It's off the table. Worse still, it has become boring except to those few dedicated souls who persist in probing its mysteries. We are, after all, beset by urgent problems and distracted by a constant drone of non-news and the endless diversions of the entertainment world. We are absorbed by our Blackberries and iPhones. We are transfixed by the feats of wealthy athletes and the latest celebrity gossip. Contemporary everyday life is so frenetic and crowded, there is so little time to relax, to read, to think, to converse at length. Out of necessity, we rely upon our presumptions of regularity. The sun will rise tomorrow morning; someone else, somewhere, has looked at the assassinations of the Sixties; so, the sun will set again in the evening. More self-preservation than apathy, it is easier not to remember and reflect, but instead to let the past slip away.

We may have endured the Kennedy assassination, but we did not really survive it intact. Rather, we simply failed and refused to confront it. We swept it under the rug and preferred to live in denial. What those who lived through the 1960s cannot deny, however, is that America is a far different country today than it once was. Younger generations do not know -- and they may never know -- the same standard of living that the "baby boom" generation witnessed and enjoyed. A culture of greed and corruption permeates both the public and private sectors. It has brought us to the precipice of a twenty percent unemployment rate and a virtual standstill of national production. The national conversation is coarse and acrimonious. Commonly held aspirations have yielded to special interest pleading. And, as Michael Moore recently reminded us, before his latest documentary understandably disappeared from theatres in the blink of an eye, since the 1960s we have long lacked for visionary and forceful leadership at the top of our society. Hard though it may be for people under the age of 50 to grasp, today's America is not only different but diminished, and they are none the wiser for it.

Next: The mainstream media and Gerald Posner.