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DALLAS — Two days after the shots rang out that claimed the life of President John F. Kennedy on Nov. 22, 1963, Dallas nightclub owner Jack Ruby gunned down Lee Harvey Oswald, Kennedy’s alleged assassin, in the basement of the Dallas City Hall. Memories of Ruby’s 1964 trial in Dallas County Criminal District Court No. 3 have come to life for Austin attorney Dickie Hile as he reviews the files his father-in-law and former law partner, Joe Tonahill, kept on the case. Tonahill, a colorful Jasper attorney who died in November 2001, served on Ruby’s defense team along with California attorney Melvin Belli and others. Ruby retained Belli to represent him, and Belli asked Tonahill to be the Texas counsel, Hile says. Hile was a junior high school student in the small town of Newton, located north of Beaumont, when Oswald allegedly shot Kennedy in Dallas, and was never involved in the Ruby case. He joined Tonahill’s firm in 1975, the year after he graduated from Texas Tech University School of Law, and married Tonahill’s daughter, Susie, two years later. When Hile left the firm in 1992, it was known as Tonahill, Hile, Leister & Jacobellis. Now a partner in Dies & Hile in Austin, Hile says he began reviewing Tonahill’s Ruby files last month in anticipation of donating many of the documents and other materials to the Sixth Floor Museum at Dealey Plaza, located in the building that once housed the old Texas School Book Depository — the site from which Oswald allegedly fired the shots that killed the 35th president. Hile says the job of determining what to do with the files fell to him, one of three executors of Tonahill’s estate and the only lawyer among them. “It is a treasure trove,” Hile says of the six boxes filled with everything from a report on Ruby’s polygraph examination to Tonahill’s final argument to the jury during the trial. The documents show that Tonahill, a bear of a man at 6-foot-5 and weighing 225 pounds, fought hard for Ruby, whom a jury ultimately found guilty and sentenced to die. Tonahill later submitted an amicus curiae brief to the Court of Criminal Appeals, which in 1966 reversed Ruby’s conviction in Rubenstein v. State. The CCA found that Judge Joe B. Brown, the trial judge, erred by denying Ruby’s motion to move the trial out of Dallas County. Ruby, whose real last name was Rubenstein, died of cancer in prison before the state could retry him. In his closing argument, presented on March 13, 1964, Tonahill accused the prosecution of being “so wrought up” by Kennedy’s assassination “that they have to get somebody as a substitute for Lee Harvey Oswald,” according to a transcript found in the files. “They would have you send a sick man, suffering with psychomotor epilepsy, to a penal institution, to gratify nothing but political ambition, embarrassment, humiliation, a need to satisfy, a desire to satisfy, an urge to satisfy an innate feeling of frustration, and it has all come out through this trial time and time again,” Tonahill told the jury in the closing argument. Also in the files are a number of drawings of the trial done by Walt Stewart, then an artist for WFAA TV in Dallas. One drawing depicts Dallas County Assistant District Attorney Bill Alexander, who prosecuted Ruby along with DA Henry Wade, pointing an accusing finger at Ruby during the closing argument to the jury. The quote beneath the drawing reads: “Oswald was a living, breathing American citizen; whatever he did, he was entitled to be tried in a court of law before a judge and jury just like you, Jack Ruby.” Hile found hundreds of news clippings that Tonahill had kept about the case. “He clipped everything,” Hile says. “He had every news clipping from the time of the assassination until the case was reviewed on appeal.” The news clippings are well preserved, Hile says, because Tonahill kept entire pages of newspapers and laid each page flat in the boxes. Hile says the files also include statements that FBI agents took from every person they could find who had any relationship to Ruby — including one from a man who claimed he once had a fight with Ruby in a bar. Another document in the files is a copy of an article that Tonahill wrote titled “Lee Harvey Oswald Was Not Guilty of Murdering John F. Kennedy (Only by Operation of Law).” Tonahill wrote in the article that, in his opinion, Oswald legally could not have been finally convicted of Kennedy’s murder because his wife, Marina, was the main source of the incriminating evidence against him, and Texas law (then Code of Criminal Procedure Article 714) prohibits spouses from testifying against each other. While Ruth Ann Rugg, director of interpretation at the Sixth Floor Museum, has not seen Tonahill’s files, she says that museums use materials like this in exhibitions, publications, teaching programs and in other ways. “The museum deals with the death of the president and the aftermath, but there is more to the story,” Rugg says. “The Ruby trial is part of that history.” Rugg says she expects the materials that Hile plans to donate will tell something not only about the parties in the case but also tell about Tonahill, who played an important role in Ruby’s trial and subsequent appeal. “It is in the details, the small pieces that sometimes people don’t think are important — the notes written in a margin — that give you an added glimpse into the person,” Rugg says. In Tonahill’s case, the picture revealed by materials in the files is of a commanding presence, both in and out of the courtroom. Beaumont attorney Gilbert “Buddy” Low, who tried cases with Tonahill and describes him as “my best friend,” says the Jasper attorney was one of the most dynamic people he ever met. “If he came in a room, he would be the controlling factor within 10 minutes,” says Low, a partner in Orgain, Bell & Tucker. “He was not overbearing; he was just in control.” Tonahill’s bushy eyebrows gave him a fierce appearance, but he actually was very witty, Low says. During a 2000 interview for Recorder affiliate Texas Lawyer‘s publication, “Legal Legends: A Century of Texas Law and Lawyering,” Tonahill recalled that Ruby asked whether he was going to get the electric chair for killing Oswald. “I told him if he does, don’t sit in it,” Tonahill said. Hile says the Oliver Stone movie “JFK” upset Tonahill, who was always adamant that Ruby could not have been involved in any conspiracy with regard to Kennedy’s assassination. “He said that Ruby couldn’t keep anything quiet for 30 minutes,” Hile says. According to the report on Ruby’s July 16, 1964, polygraph examination, Ruby denied that he knew Oswald before the assassination and answered “no” when asked by the polygraph examiner if he shot Oswald to silence him. FBI Special Agent Bell Herndon, who administered the polygraph exam, concluded there was no deception when Ruby was asked relevant questions but that his answers to certain irrelevant control questions — such as Ruby’s negative response when asked if he had had been subjected to disciplinary action while in the military — “was suggestive of deception,” according to the report, which was included in the Warren Commission’s report. Established in 1963 by an executive order of President Lyndon B. Johnson, the Warren Commission concluded that Oswald acted alone in assassinating Kennedy. Hile says it has been “an interesting task” to review Tonahill’s files on the Ruby case but admits it is time-consuming. Before turning over the files to the Sixth Floor Museum, Hile says he must “ferret out” any documents protected by attorney-client privilege. John Dzienkowski, a University of Texas School of Law professor who teaches professional responsibility, says the U.S. Supreme Court’s 1998 decision in Swidler & Berlin v. United States makes it clear that the privilege survives the death of the client. Under Federal Rule of Evidence 501, whether something is privileged is governed by the common law as interpreted by the courts in light of reason and experience, says Steven Goode, a UT associate dean who also teaches evidence and professional responsibility. In Swidler, the Office of the Independent Counsel sought an attorney’s notes on a conversation with his client, Deputy White House Counsel Vince Foster, as part of an investigation into whether various individuals made false statements or obstructed justice in an investigation into the 1993 staff dismissals in the White House Travel Office. According to the majority opinion by Chief Justice William Rehnquist, Foster sought legal advice from James Hamilton, who took three pages of notes of their 1995 meeting. Foster committed suicide nine days after the meeting. In its 6-3 decision, the court held that the notes were protected by the attorney-client privilege. Justices Sandra Day O’Connor, Antonin Scalia and Clarence Thomas dissented. “Knowing that all communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel,” Dzienkowski says. Goode says there is no case law in Texas that deals with the issue of attorney-client privilege after a client is dead but that the larger notion of client confidentiality comes into play. Attorneys are obligated to keep private any confidential information they receive about a client, including materials covered by attorney-client privilege, he says. Hile is taking no chances with regard to protecting Ruby’s confidentiality. “Essentially, I have to go through each of the files and make the call on each document,” he says. His review of the files has broadened Hile’s knowledge about the events surrounding the Ruby case. Hile says materials in the files show that two battles were going on — the battle to represent Ruby and the intramural skirmishes that members of Ruby’s family waged to determine who would represent him. After the conviction, while the appeal was pending, Ruby’s sister, Eva Grant, asked that New York attorney William Kunstler, a partner in Kunstler, Kunstler & Kinoy, represent Ruby and dismissed Tonahill and several other attorneys, Hile says. Although he had been dismissed, Tonahill filed an amicus brief supporting Ruby’s appeal, and was singled out for praise by W.T. McDonald, then the presiding judge of the Court of Criminal Appeals. When the CCA reversed Ruby’s conviction, McDonald wrote in a concurring opinion, “Through much stress and strain, misunderstanding among client and appellant’s relatives, [Tonahill] has exemplified the highest standards of the legal profession, remained true to his duty and done an outstanding job in briefing and presenting this case before the court.” Hile says that reading the documents has reminded him of how strong an advocate Tonahill was for his clients. Notes Hile: “No one ever claimed he was not zealously represented by Joe Tonahill. A client always got 110 percent from Joe.” Mary Alice Robbins is a reporter with Texas Lawyer, a Recorder affiliate based in Dallas.

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