Diminished Responsibility

The Trial of Jack Ruby.
by John Kaplan and Jon R. Waltz.
Macmillan. 392 pp. $7.95.

Though The Publishers claim on the jacket that this intelligent report “will entertain and inform lawyers and laymen alike,” it is hard to believe that The Trial of Jack Ruby can find many readers. Even for the diseased imagination of Clio, the psychopath of muses, the Jack Ruby story is a remarkably distasteful accomplishment: everything to be learned from it is discouraging. Moreover, except for a demonstration that the Dallas police, prosecutors, and jury were considerably more capable than Northern newspapers had led us to believe, the book does not tell us much of importance that we do not already know—there is no news in the information that Ruby was an unbalanced roughneck, that Melvin Belli made a fool of himself and a condemned man of his client, that one of the prosecuting attorneys had sadistic tendencies, and that the judge in the case was a clown.

Still, there are nasty details that have not been common knowledge:

• NBC’s offer to help pay the counsel fees if the Ruby family would retain San Francisco’s Jake Ehrlich, prototype for the hero of the Sam Benedict TV serial;
• The scene in the prison after Ruby’s conviction, when two of his lawyers smuggled in a miniature camera and took pictures of their shell-shocked client, intending to sell the photos to Life;
• Judge Brown’s letter to his publishers in which he wrote about defense allegations that he had a pecuniary interest in ruling on Ruby’s motions for a new trial. “I can refute that,” he wrote, “by stating . . . that I have not begun to write a book.” Then he added, “We have approximately 190 pages complete . . .”
• Prosecuting attorney Bill Alexander’s slip into “Oswald loved life” during his summation to the jury, revealing the extent to which even the demand for a death penalty can become a matter of habit. (“My experience at the Bar,” Max Steuer, the greatest of 20th-century American trial lawyers, once said in open court, “has taught me that prosecutors, as a rule, are persons who love human blood.”)
• The circumstances of the oral report to defense counsel Melvin Belli by psychiatrists Manfred Guttmacher and Walter Bromberg after they had first examined Ruby. They saw Belli only at an exuberant party the lawyer was giving in a Dallas restaurant, where, as Kaplan and Waltz delicately put it, “they were not able to convey much detailed information to their host.”

And these matters, God save us, are part of History. So there is, after all, a value in having the whole bag of details gathered in one place and tied together with the ironic detachment of two young law professors. Neither of the authors is credited on the jacket with any previous publications, but those interested in school integration will remember Kaplan as the author of a fine report to the Civil Rights Commission (and a pair of major articles in the Northwestern Law Review) on the New Rochelle desegregation case.

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Kaplan and Waltz assume the truth of the official version of the Kennedy assassination, and allow themselves the luxury of a brief reductio ad absurdum of the silly conspiracy theories that have been floating about, especially in Europe, since November 1963. (They hypothesize an “imaginative historian” who argues that Ruby did not kill Oswald, that someone else in the crowd did it while Ruby made a diversion: “Although there was testimony that Oswald’s side showed a circular powder burn and a bullet hole, there was no testimony that the bullet hole was within the circle.”) The story of the two murders is told quickly, and the authors plunge into the labyrinthine question of how the criminal law and the adversary system of criminal procedure could be made to do justice in the case of Jack Ruby.

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Though they are formally discreet about expressing opinions, there is not much question about what Kaplan and Waltz would have regarded as a just result of the Ruby trial: a conviction for murder without malice under Texas law, and a sentence of something under five years. They also obviously believe that a result of this sort could have been achieved through the trial strategy proposed by Tom Howard, a Dallas police-court lawyer who was Ruby’s first counsel. This approach would have stressed that the man Ruby killed was Oswald, and that the crime could not have been premeditated in the common-sense definition of the word (though it could have been in the legal sense: premeditation, like salvation, can come in a flash), because Oswald’s transfer from police building to county jail had been advertised for ten o’clock and Ruby didn’t even show up until 11:20, just as Oswald emerged. Three minutes before, and the time could be proved, Ruby had been in a Western Union office across the street, wiring $25 to a stripper who needed to be paid for the weekend she wouldn’t be working.

Ruby himself, Howard would have presented as “an excitable, impulsive, even violent show-off who nonetheless was generous, decent and honest.” Howard could probably have put on the record (certainly if Ruby himself took the stand) a nice, useful story about Ruby’s reaction to the murder of a Dallas detective whom he had barely known. He had cried, closed his club, taken his girls to the funeral, and donated $200 to the widow. This murder case is still listed as unsolved. The police (and Ruby was friendly with lots of policemen) were sure they knew who did it, but they could never gather enough evidence to prosecute. Coupled with the nationwide disorientation of that dreadful weekend, and Ruby’s demonstrably unstable personality, the story would have given the jurors a good sentimental reason to deal easily with the man who assassinated the President’s assassin. And once a jury gets in the room, every lawyer believes (nobody really knows), sentiment weighs more heavily than law.

But Ruby’s brother and sisters decided Tom Howard was too small a figure to stand at the center of such an important case, and began their long fluttering about the legal lights first of Dallas and then of the nation at large. To Ruby’s misfortune, they came up with the San Francisco-cum-Hollywood negligence lawyer Melvin Belli, who had grown rich on his one-third share of enormous verdicts for personal injuries to his clients, and famous through talking about how he had gotten rich. For Belli, a light sentence was not a good enough result from the Ruby trial: he could get Ruby off completely. As eighty million people had seen the killing, it might be difficult to find Ruby a convincing alibi; the only possible grounds for acquittal were insanity. Therefore, Ruby was insane. Belli proposed an insanity defense to Ruby’s brother before he had ever met Ruby, gathered any evidence that could be used in a court, or discussed the question with a psychiatrist.

As Kaplan and Waltz see the case, Ruby was probably sane at the time of the Oswald murder by any sensible definition of sanity—and certainly sane by the legal definition, which is, in Texas as in most states, that he knew what he was doing and was capable of knowing that it was wrong. (The authors do not come out flatly with this opinion—the matter is still potentially sub judice, and they are, after all, law professors—but the conclusion is patent in most of what they write, especially in what they write about Belli.) They regard as particularly weak Belli’s special version of the insanity defense—that Ruby killed Oswald while behaving as an automaton in a fugue state occasioned by a seizure of psychomotor epilepsy. Ruby had no history of seizures as such (though he could be shown to have a short fuse), and the only evidence to make the story remotely plausible was a slight variation from the normal in his electroencephelograph charts—a variation that could be, and was, differently interpreted by different specialists. This evidence probably could not have been made to stand up even in states where the law places on the prosecution the burden of proof that the defendant was not insane at the time of the crime; in states like Texas (and countries like England), where the insanity itself must be proved, the EEG charts were ridiculously inadequate. Though Belli later wrote that his case “had been proved to perfection,” Kaplan and Waltz say it “had collapsed.” They do not really believe that it had ever existed.

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The authors are prepared to accept the notion that Belli might have had a chance with a more conventional psychiatric defense, because Jack Ruby was certainly “a bit of a nut.” Indeed, the testimony for such a defense was entered in evidence, though Belli, dazzled by the brilliance of his original line, refused to emphasize it. Meanwhile, Kaplan and Waltz point out, the defense itself had been a punishment far beyond anything a jury was likely to do to Ruby after hearing the arguments Tom Howard wished to employ. “Jack Ruby, before a crowded courtroom and the press of the world,” Kaplan and Waltz write, “was stripped of both his self-respect and his illusions. He heard himself analyzed by his psychiatrists as a latent homosexual with a compulsive desire to be liked and respected, described by his own lawyer as the village clown. . . . As one of the newsmen, Edward Linn, put it, ‘It would have been kinder to stone him to death.’” Whatever Ruby’s mental condition when he killed Oswald, he had a certifiable suicidal paranoia by the end of his trial. He believed his brother had been tortured, castrated, and burned to death in the street outside his cell, and that all the Jews in America were being slaughtered in a huge pogrom because the Kennedy assassination was now being blamed on him.

Most of the book is the trial itself. The horror story is told well and rather economically, though The Trial of Jack Ruby is distinguished by the quality of its authors’ minds rather than by the quality of their prose. They lapse occasionally into journalese (“newsman,” “the famed Menninger Clinic,” etc.), but only rarely into professional jargon. Their explanations of Texas law are lucid. One could wish they had allowed themselves more space for some of the more general questions that arise, particularly for the legal and philosophical conundrums that festoon the insanity defense in criminal prosecutions. Like everyone else, Kaplan and Waltz detest the M’-Naghten Rules, with their contentless categories of right and wrong. Like most liberals, they feel a continuing Angst toward the deceptive simplicities of Judge Bazelon’s 1954 decision in Durham, excluding from criminal culpability anyone whose “unlawful act Was the product of a mental disease or mental defect.” And like all law professors, they regret that “most Americans . . . are still highly suspicious of the insanity defense.” What their seven-page discussion really says, though, is that the problem is unmanageable—which is what most American lawyers believe.

This non-lawyer cannot avoid the feeling that the law and its servants have taken an admittedly difficult question and made it impossible through the choice of a faulty frame of reference. Much of the problem lies with the verbal form itself: “not guilty by reason of insanity.” Belli looked silly in Dallas when he tried to bar from the jury anyone who had seen the television pictures of the Oswald murder, because he was willing to agree that Ruby had done it. But in a sense he was right: the law was asking too much of common-sense jurors when it told them they must give to someone like Ruby, whom they had seen commit a murder, the same formal “not guilty” they would give to some poor devil who could show he had been a hundred miles away from the scene of the crime with which he was charged, and stood in the dock only because Of the overzealous credulity and stupidity of police or prosecutor.

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In other sections of their book, Kaplan and Waltz make reference to British practice, and it is a pity that they do not do so here. For the formal British verdict of “guilty but insane” opens a path to a much more sensible disposition of insanity pleas. In its paper before the Royal Commission investigating these matters in 1949, the British Medical Association urged (unsuccessfully) the opening up of this plea to allow a verdict of “guilty but with diminished responsibility.” The “murder without malice” verdict that Kaplan and Waltz would have considered proper in the Ruby case really means “guilty but with diminished responsibility,” and these words are much more significant to both psychiatrists and laymen—and maybe even to lawyers.

Real difficulties are not resolved by verbal tricks, but words can help in avoiding what the late Felix Cohen called “transcendental nonsense.” The public should not be criticized for regarding guilt or innocence as objective facts: they are objective facts. And psychiatrists, whose basic discipline is determinist, ought not to be placed in a position where they must seek precise measurements of the degree to which a given action was inescapable for a given actor. Admitting the guilt of the insane criminal would also automatically shift the emphasis to the right question, which is the penalty or treatment that makes the most sense, giving due regard to the unique life in the dock and to the long-range interests of the society.

The utility of the Ruby episode, if it has any, lies in its unusual concentration of all the elements that make the present insanity plea (and, maybe, the dichotomy between first-degree and second-degree murder) unworkable in the courtroom. Kaplan and Waltz have performed a service by laying out the elements in good order, and one must always sympathize with those who decide not to open Pandora’s box even though, as the mountain-climbers say, It Is There. But the service would have been greater, and the book would have been better, if the authors had been willing to apply their scholarship and intelligence to the vital issue as well as to the dead and stinking story.