President's Column: A Time to Reflect
This year marks the 50th anniversary of the assassination of President John F. Kennedy in Dallas. Unless you have been in a coma for the last 10 months, you have been hearing anew about every detail of that fateful day in November 1963. If you are over the age of 60, you have no doubt been asked about and have reflected on where you were on that day and how you reacted to the news of the assassination. While we reminisce about where we were and argue over conspiracy theories, we might also consider the involvement of the Dallas Bar Association and the legal community in Dallas in the events relating to the assassination.
H. Louis Nichols was the President of the Dallas Bar in 1963. On the afternoon of November 23rd, less than 24 hours after Lee Harvey Oswald was arrested for shooting the President, Mr. Nichols started receiving calls asking if Oswald had a lawyer. Apparently the news media was saying that Oswald could not get a lawyer in Dallas to represent him. Mr. Nichols had no idea if Oswald had asked for an attorney or if he was being represented. Being a civil trial lawyer, Mr. Nichols did not know the specifics of the criminal law relating to the obligation to appoint a lawyer in criminal cases, so he began making some calls of his own. After talking to a couple of his friends who were criminal lawyers, he learned that the obligation to appoint counsel began after the accused was indicted. Of course Oswald had not been indicted at that point so the obligation to appoint counsel for him had not arisen. Nevertheless, Nichols continued his inquiry into whether or not Oswald had or wanted an attorney. After talking with several others, including the District Attorney, Henry Wade, and Glen King, a captain on the Dallas police force, Nichols still did not know if Oswald had an attorney. At the suggestion of Captain King and others, Nichols decided he should visit Oswald in jail to find out if he had a lawyer or if he wanted and had asked for a lawyer.
Nichols testified before the Warren Commission in fascinating detail about his interview of Oswald. In that historic meeting, Oswald told Nichols that he was being held incommunicado and that he did not know why he had been arrested. Nichols did not recall exactly what he told Oswald about the President being shot but he did recall asking Oswald repeatedly if he wanted Nichols to arrange representation for him. The initial response from Oswald was to ask Nichols if he knew a New York lawyer by the name of John Abt. Nichols did not know him but Oswald said that Abt was the lawyer he would like to have represent him. Oswald asked if Nichols knew any lawyers who were members of the American Civil Liberties Union. Oswald said he was a member and would like someone who was also a member to represent him. Nichols said he did not know any members of the ACLU. Then Oswald said if neither John Abt nor a member of the ACLU could represent him, if a lawyer could be found who would believe in him, believe as he believed and believe in his innocence, he might let them represent him. Again, Nichols asked if Oswald wanted Nichols to try to get a lawyer in Dallas to represent him. Oswald responded “no, not now.” Nichols continued his conversation with Oswald to be sure that Oswald knew what he was doing and understood that Nichols was offering to arrange for representation. Once Nichols was satisfied that Oswald did not want Nichols to find him a lawyer for him, Nichols left the jail cell. On his way out, Nichols talked to the police chief who confirmed that Oswald had never asked for a lawyer.
When Nichols stepped out of the courthouse, he was swarmed with reporters and photographers asking him all kinds of questions about Oswald. Nichols reported to them that he had spoken to Oswald to determine if he had an attorney or wanted the Dallas Bar Association to arrange for an attorney for him. Nichols reported that Oswald appeared to be rational and seemed to know his rights with regard to being represented but that he had turned down the offer of help made by Nichols. Of course we know that Oswald never had the opportunity to obtain counsel because he was shot the very next day by Jack Ruby.
Why were the actions of Louis Nichols significant? Was he obligated or was the bar obligated to insure that Oswald had counsel? The answer is “no.” The appointment of counsel is handled by the judiciary. The Warren Commission inquired into the role of the bar association in the representation of indigents (Oswald was indigent) and Nichols explained how attorneys were appointed by the court. He also pointed out that he had spoken to a Dallas judge who said he knew of no occasion where a lawyer could not be found to represent an indigent defendant.
Why did Nichols undertake to determine if Oswald had counsel or wanted counsel appointed for him? He certainly was not doing it for his own benefit since he was not a criminal lawyer and was not offering to personally represent Oswald. He no doubt did so, in his role as DBA President, out of his sense of duty to the legal system and the profession. These were clearly exigent circumstances and, as the leader of the bar association, Nichols stepped up to insure that our legal system worked as it was intended to. In the first section of the Texas Lawyers Creed, which was not adopted until 1989, it states that “a lawyer owes to the administration of justice personal dignity, integrity, and independence. A lawyer should always adhere to the highest principles of professionalism” including being “responsible to assure that all persons have access to competent representation regardless of their wealth or position in life.” Nichols was fulfilling this obligation, although unwritten at the time, to the profession and the legal system.
The Dallas Bar and Dallas lawyers were involved in other situations related to Kennedy’s assassination. In December of 1963, the Dallas Bar was asked to weigh in on whether or not the trial of Jack Ruby should be televised. Mr. Nichols, who was still president of the Bar, reported to the DBA board that the executive committee of the board was of the unanimous opinion that the trial should not be televised. The board discussed the issue at length and ultimately agreed, for many reasons, that it would not be advisable to televise the trial. The resolution of the board stated that the resolution should be delivered to the court only and should not be released to the press, unless or until the court decided to do so. Mr. Nichols presented the resolution to Judge Joe B. Brown, the judge in the Ruby trial, and the trial was not televised.
Another incident surrounding the assassination which involved Dallas lawyers relates to the movie recorded of the Kennedy assassination by Abraham Zapruder. Mr. Zapruder was a client of Sam Passman of the firm of Passman & Jones. Mr. Zapruder knew instinctively that his film of the assassination would be very important and could possibly have tremendous value. He sought out the counsel of Sam Passman to help protect the confidentiality of the contents of the film, as well as to protect his ownership rights in the film. Mr. Passman and his partner, Shannon Jones, Jr., did an amazing job under great pressure and on extremely short notice of protecting the constitutional rights of Mr. Zapruder to the ownership of the film. In 1998, 35 years after the assassination, by an Act of Congress all original evidence from the Warren Commission and government files relating to the assassination, including the Zapruder film, became the property of the National Archives and Records Administration. As a consequence, the Zapruder film was taken by the government by eminent domain. However, with the help of Passman & Jones, the Zapruder family was well compensated for their property.
The DBA Public Forum Committee will host a CLE program on November 21, 2013 relating to the handling of the Zapruder film. The panelists will include Jerry Alexander, an attorney with Passman & Jones, Chris Vognar of The Dallas Morning News, and Darwin Payne, a former newspaper reporter and author of several books, including one on the Kennedy assassination. The program is open to the public and I know it will be very interesting and educational.
The DBA also hosted a CLE entitled: The Trial of Lee Harvey Oswald on October 25th. Victor Corpus, of Jackson Lewis, LLP, organized the program which was held in the Central Jury Room at the George L. Allen, Sr. Courts Building. The trial was presided over by Judge Martin Hoffman and Toby Shook and Bill Wirskye, both of Shook, Gunter & Wirskye, acted as defense counsel and prosecutor, respectively. Law students from SMU, Texas A&M and Texas Tech participated as witnesses in the trial. The program was well attended and very well received.
In this year of learning about and reflecting on the Kennedy assassination, it is good to be reminded of the role our bar and lawyers played in ensuring that justice and order were maintained in the face of a national crisis. Whether it is through role playing, educational programming or advising clients and the courts, the DBA and Dallas lawyers are clearly committed to the improvement and preservation of the profession and our legal system.