Chain of custody of CE 399 - big problem or much ado about nothing?

[Lance Payette]

You really don't understand that your are massively contradicting yourself, right?

I believe they would be necessary. The chain of custody has to extend from the discovery of the item of evidence to it being offered at trial. Particularly with the confusing CE 2011 and Shanklin's AIRTEL, the defense would be arguing precisely what the chain of custody is intended to prevent - i.e., that CE 399 originated with the FBI (Todd and Frazier) and was not in fact the bullet found by Tomlinson and Wright. It was fabricated by the FBI  as an additional item of evidence against Oswald. Hence, I believe Tomlinson and Wright would have been necessary.

Exactly right, the sole purpose of the chain of custody is that the piece of evidence found at the crime scene is in fact the same as the piece of evidence presented at trial.

My point with the imaginary testimony of Tomlinson was that he could have been just about as "iffy" as he was about the stretcher at his WC testimony and that this still would have satisfied the "identification" requirement. All he really needed to say was "I found a bullet at Parkland and I have no way of knowing with any certainty whether CE 399 is it because I didn't pay that much attention, but I have no reason to say CE 399 isn't it." 

And this is were you contradict yourself. If Tomlinson was "just about as "iffy" as he was about the stretcher" it would not satisfy the chain of custody requirements, because being uncertain does in no way ensure that the piece of evidence found at the crime scene is in fact the same as the piece of evidence presented at trial. It is not an identification when the witness basically says that he can't identify the item.

Golly, this man will simply not stay in his NWMT bin, will he? Who keeps letting him out - do I need to install a Kryptonite lock or something?

There is no contradiction. TRY READING MY ORIGINAL POST.

You once again demonstrate that you are a door-to-door Tupperware salesman and not a lawyer. (Nothing against Tupperware salesmen, of course. They just typically don't think like lawyers.)

The chain of custody is not evaluated on a witness-by-witness basis. It is evaluated on the basis of the totality of the testimony and evidence.

Given the circumstances in which CE 399 was found, there would be little expectation that witnesses such as T and W would testify months later "Damn right that's the bullet I found. I examined it closely at the time. No question in my mind."

If they HAD testified in that manner, in fact, it would have been suspicious in its own right. They would have looked like the classic overly-coached-by-their-lawyer witnesses.

If Tomlinson and Wright had both testified "No way is that it, the bullet I saw was a distinctly pointy-headed slug with a little yellow happy face on the side that we laughed about at the time" - well, yes, that would kill the chain of custody of CE 399.

If they had both testified "Well, obviously, I can't say that's the exact bullet because I didn't pay that much attention at the time and I don't know the full provenance of this CE 399, but there is nothing about CE 399 that would cause me to say it isn't the bullet" - then, indeed, by the time Johnsen, Rowley, Todd and Frazier had testified the chain of custody would have been satisfactory even if Johnsen and Rowley had testified the same way.

The test for admission is whether, when all is said and done, there is a likelihood the bullet being offered into evidence is the one found by Tomlinson at Parkland. It is not some "Gotcha!" test where evidence is kept out because every witness isn't able to provide an exact identification.

There is nothing further I can or will say about this because your obtuseness is either willful or impenetrable. If you choose to keep chiming in, I am simply going to ignore you.

[Martin Weidmann]

Golly, this man will simply not stay in his NWMT bin, will he? Who keeps letting him out - do I need to install a Kryptonite lock or something?

There is no contradiction. TRY READING MY ORIGINAL POST.

You once again demonstrate that you are a door-to-door Tupperware salesman and not a lawyer. (Nothing against Tupperware salesmen, of course. They just typically don't think like lawyers.)

The chain of custody is not evaluated on a witness-by-witness basis. It is evaluated on the basis of the totality of the testimony and evidence.

Given the circumstances in which CE 399 was found, there would be little expectation that witnesses such as T and W would testify months later "Damn right that's the bullet I found. I examined it closely at the time. No question in my mind."

If they HAD testified in that manner, in fact, it would have been suspicious in its own right. They would have looked like the classic overly-coached-by-their-lawyer witnesses.

If Tomlinson and Wright had both testified "No way is that it, the bullet I saw was a distinctly pointy-headed slug with a little yellow happy face on the side that we laughed about at the time" - well, yes, that would kill the chain of custody of CE 399.

If they had both testified "Well, obviously, I can't say that's the exact bullet because I didn't pay that much attention at the time and I don't know the full provenance of this CE 399, but there is nothing about CE 399 that would cause me to say it isn't the bullet" - then, indeed, by the time Johnsen, Rowley, Todd and Frazier had testified the chain of custody would have been satisfactory even if Johnsen and Rowley had testified the same way.

The test for admission is whether, when all is said and done, there is a likelihood the bullet being offered into evidence is the one found by Tomlinson at Parkland. It is not some "Gotcha!" test where evidence is kept out because every witness isn't able to provide an exact identification.

There is nothing further I can or will say about this because your obtuseness is either willful or impenetrable. If you choose to keep chiming in, I am simply going to ignore you.

If you choose to keep chiming in, I am simply going to ignore you.

Bla bla bla.... heard it all before....

First you were going to leave this forum which you figured was beneath you, and then - in Trump like fashion - you changed your mind and started an avalanche of arrogant word salad post.

Then you decided that several members were not worth your time and yet here you are consuming a massive amount of time to reply to one of those members.

And now you claim you are going to ignore me.... Of course you are, as your childish insults do not make any kind of impression, your speculative assumptions and your pathetic fictional dialogue simply do not work, it might be your best option to simply run away.

Let's see how long it will take before you start to not ignore me 


Oh BTW, whether you like it or not, I reserve the right to reply to any of your selfserving BS posts. You are not the only LN clown who is afraid to reply to my posts!

[Tom Graves]

[...]

Weedyman,

How many evil, evil bad guys and really, really bad girls do you figure were wittingly involved, altogether, in the planning, the "patsy-ing," the shooting, and the all-important cover up?

Just a few?

Oodles and gobs?

[Tim Nickerson]

I believe they would be necessary. The chain of custody has to extend from the discovery of the item of evidence to it being offered at trial. Particularly with the confusing CE 2011 and Shanklin's AIRTEL, the defense would be arguing precisely what the chain of custody is intended to prevent - i.e., that CE 399 originated with the FBI (Todd and Frazier) and was not in fact the bullet found by Tomlinson and Wright. It was fabricated by the FBI  as an additional item of evidence against Oswald. Hence, I believe Tomlinson and Wright would have been necessary.

My point with the imaginary testimony of Tomlinson was that he could have been just about as "iffy" as he was about the stretcher at his WC testimony and that this still would have satisfied the "identification" requirement. All he really needed to say was "I found a bullet at Parkland and I have no way of knowing with any certainty whether CE 399 is it because I didn't pay that much attention, but I have no reason to say CE 399 isn't it." The identification requirement, as one works through the chain of custody, does not require every witness to testify "Yes, absolutely, no question, that's it." Not at all.

I believe that you are right. I had read different takes on it but this is the one that I had in mind:

According to one position, a "chain-of custody foundation is not required ... for periods before the evidence comes into the possession of law enforcement personnel."

https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1308&context=faculty_publications

I hadn't bothered to actually read the professor's opinion on it.

[Lance Payette]

I believe that you are right. I had read different takes on it but this is the one that I had in mind:

According to one position, a "chain-of custody foundation is not required ... for periods before the evidence comes into the possession of law enforcement personnel."

https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1308&context=faculty_publications

I hadn't bothered to actually read the professor's opinion on it.

Thanks - that's an excellent article.

I think technically "chain of custody" does refer to the period of custody by agents of the prosecution (police, detectives, etc.). If Johnsen had been present when Tomlinson and Wright found the bullet, T and W would have been irrelevant. But since the bullet came into Johnsen's possession via Wright, and not at the time and location where it was found, then as the article suggests the period before it came into Johnsen's possession (and thus T and W) would be important. Probably in most cases Johnsen's testimony alone would be sufficient, but not with the red flags raised by CE 2011 and Shaklin's AIRTEL. It would be interesting to know what arguments Gerry Spence made about CE 399 at the evidentiary prehearing in the mock trial.

[Lance Payette]

If you choose to keep chiming in, I am simply going to ignore you.

Bla bla bla.... heard it all before....

First you were going to leave this forum which you figured was beneath you, and then - in Trump like fashion - you changed your mind and started an avalanche of arrogant word salad post.

Then you decided that several members were not worth your time and yet here you are consuming a massive amount of time to reply to one of those members.

And now you claim you are going to ignore me.... Of course you are, as your childish insults do not make any kind of impression, your speculative assumptions and your pathetic fictional dialogue simply do not work, it might be your best option to simply run away.

Let's see how long it will take before you start to not ignore me 


Oh BTW, whether you like it or not, I reserve the right to reply to any of your selfserving BS posts. You are not the only LN clown who is afraid to reply to my posts!

Oh, dear, what to do with folks like Martin?

Let's see, I am just like Trump, an "LN clown" who is "afraid" to reply to Martin's posts, and a purveyor of "an avalanche of arrogant word salad posts," "childish insults," "pathetic fictional dialogue" and "self-serving BS posts." Well, perhaps.

I think it would be fair to say I've gotten under Martin's skin, yes?

I actually started this narrowly focused thread in a sincere effort to provide a retired lawyer's perspective on how a chain of custody works, what it means for a witness to identify an item of evidence, and why the CT arguments about CE 399 (strictly in relation to the chain of custody) are flawed. I really didn't picture this thread generating any hysteria.

Martin immediately went off on the tangent that I was completely misguided because the Oswald defense would have not objected to the admission of CE 399 at all. I responded to each of his posts at considerable length. By his second post, I was "pathetic" and the purveyor of "self-serving BS," "the diehard LN cult manuscript," and "assumptions, cherry-picked evidence and a massive subjective bias." Later, I was accused of "massively contradicting myself," of possessing an "arrogant big head" and of posting a "word salad" unworthy of a response.

I warned Martin early in our relationship, when he questioned whether I was a lawyer at all, that he was dealing with a master of snarkiness and that if he chose to play this game he was going find out what master-level snarkiness looks like. He didn't take the hint.

Look, people, this is all silliness. Do you not understand that? The verdict of history on the JFKA is never going to change. CTers and LNers live in different realities, simple as that. No minds are ever going to be changed. At some level, who the hell cares who whacked JFK in 1963 anyway? Playing with the issues is kind of fun in the same way jigsaw puzzles (or perhaps chess) are fun, and that's about it. It's mental exercise, but it isn't going anywhere. If you're in love with your theory, go for it - but recognize that you're just playing around with ideas and that others, including LNers, are equally in love with their theories. If you become the functional equivalent of a religious fundamentalist about it, all the fun goes poof.

The problem with Martin and those like him is that they don't get the joke. They become enraged when they aren't taken as seriously as they think they should be taken. NONE OF IT IS SERIOUS, that's the joke. There are even LNers who don't get the joke. Do you think I'm serious with my Caped Factoid Buster nonsense? With assigning folks like Martin to some imaginary bin of those who are Not Worth My Time? Good Lord. On every forum on which I've ever participated - even golf and motorcycle forums - I've found it amusing to create some over-the-top persona and turn him loose. If he makes you come unglued, that's your problem and frankly a source of mirth for me until it reaches the level of upsetting someone to the extent it seems to have done with Martin. If you can't deal with master-level snarkiness, don't provoke me by playing that game; if you can, bring it - the wittier the better!

That being said, I shall herewith release Martin and his compadres from the imaginary Not Worth My Time bin and, if they say anything worthwhile (unlikely, but it could happen!  ) pledge myself to respond in a restrained and statesmanlike manner worthy of my Golden Gate Baptist Theological Seminary training.

Or maybe not. 

[Tim Nickerson]

Thanks - that's an excellent article.

I think technically "chain of custody" does refer to the period of custody by agents of the prosecution (police, detectives, etc.). If Johnsen had been present when Tomlinson and Wright found the bullet, T and W would have been irrelevant. But since the bullet came into Johnsen's possession via Wright, and not at the time and location where it was found, then as the article suggests the period before it came into Johnsen's possession (and thus T and W) would be important. Probably in most cases Johnsen's testimony alone would be sufficient, but not with the red flags raised by CE 2011 and Shaklin's AIRTEL. It would be interesting to know what arguments Gerry Spence made about CE 399 at the evidentiary prehearing in the mock trial.

I'm not seeing red flags in CE-2011 and Shanklin's Airtel. They both seem to be saying the same thing. Neither Wright nor Tomlinson could positively identify exhibit C1 as the bullet that they handled at Parkland on Nov 22. Understandably so. The Airtel is misinterpreted by many in the CT camp. Wright and Tomlinson both told Bardwell Odum that the bullet appeared to be the one they handled but they were not positive that it was the same one.  CTs were ecstatic when Thompson and Aguilar reported that Odum denied to them that he had ever handled CE-399. Thompson eventually burst their bubble when he admitted that Odum recovered some memory of being in Wright's office at Parkland and ended up deferring to the FBI document.