MR. ALCOCK: Your Honor, this man has identified an individual as Clay Bertrand. The name I won't mention on this occasion.
THE COURT: I can't hear you.
MR. ALCOCK: This man has identified an individual as Clay Bertrand. The individual he has identified is someone that he was in constant contact with, or association with, over a long period of time. When he referred to him in the Warren Commission Report and says he had only seen him two years ago, and further on I am going down to a point where he says he saw him once six months ago, these are patent lies because he sees him almost every day, the man he is referring to, and I cannot bring this out to the Jury and show wherein he is lying, Your Honor, unless I am allowed to ask him the question. What good if I can read the statement? The Jury doesn't understand what is behind the statement.
THE COURT: The last question, Mr. Alcock, was not reading from the statement.
MR. ALCOCK: The last question was, isn't it a matter of fact you saw this man rather regularly between the time you first saw him and the time you testified before the Warren Commission.
THE COURT: Where is there a contradictory statement in this? I don't see that question put in this.
MR. ALCOCK: If he says he saw him once two years ago, it is manifestly contradictory if he says he saw him regularly during that period.
THE COURT: Where can you show me that in the testimony before the Warren Commission?
MR. ALCOCK: He didn't say it before the Warren Commission.
THE COURT: Then how can you contradict him on it?
MR. ALCOCK: Because I can contradict him on his own testimony, but if he is not going to be allowed to answer my questions, how can I contradict him?
THE COURT: If you get in that area, Mr. Alcock, the witness takes the role of a person under charges.
MR. ALCOCK: The witness is under the role of a person under direct charges when he took the stand under Direct Examination, when he discussed Clay Bertrand.
THE COURT: And at the time he took it he did not give up his constitutional rights just because he took the witness stand and answered questions.
MR. ALCOCK: I realize that, but when he answered questions relative to Clay Bertrand, he opened the door.
THE COURT: Not in my opinion. It is different. Any time that he wishes to invoke his constitutional right, he may do it, but if he wishes to invoke his constitutional right, I have to rule on it at that moment, and that is what he is doing.
MR. ALCOCK: Well, Your Honor, what good would it be for me to read down these statements before the Warren Commission unless I could elicit testimony from him that they were in fact contradictory. Now wait a minute. The Court has denied me the right to ask this man whether or not he had rather constant association with Clay Bertrand.
THE COURT: I beg your pardon.
MR. ALCOCK: The Court has denied me the right to ask this man whether or not he had rather regular association with the name -- the man he associates with the name of Clem Bertrand.
THE COURT: That is correct.
MR. ALCOCK: Unless I can elicit this, these statements would be ineffectual, they would be read in a vacuum. The Jury doesn't understand this. How can I impeach this man unless I can show what he has said on prior occasions? The man he identifies as Clay Bertrand is a client of his and whom he saw regularly. Now he says he saw him once two years ago, which is a lie under oath and I have go a right to show it to the Jury.
THE COURT: Well, let's see now. Let me try to explain it to you the way I look at the law. You are alleging that certain statements made by Mr. Andrews when he was interviewed in January of 1964 -- you read the statement to him, he either tells you yes he made the statement or denies it and says he didn't. If he admits it, you have to go to something else. And you wish now to go further than that.
MR. ALCOCK: I can't show it is a lie?
THE COURT: If he admits it, you can't go any further, not with this witness. You may be able to put other witnesses in on rebuttal to show he is lying. Mr. Alcock, if you ask Mr. Andrews did he make such and such a statement to the Commission --
MR. ALCOCK: Right. He says --
THE COURT: -- and then he says, if it is in the record I must have made it --
MR. ALCOCK: Right.
THE COURT: -- then you want to ask him is it the truth or not the truth?
MR. ALCOCK: That is correct.
THE COURT: You haven't asked him that. You asked him has he met Clem Bertrand three our four times.
MR. ALCOCK: Clay Bertrand.
THE COURT: Clay Bertrand.
MR. ALCOCK: You mean I can't ask him -- Can I ask him if it is the truth or not?
THE COURT: Certainly.
MR. ALCOCK: All right.
THE COURT: But if you are referring to something which tends to say he met Clem Bertrand or Clay Bertrand during a period of time, it does get close to the open charges against him, because that is the substance of this open indictment against him. I know what you are referring to. I will read it:
"And this was the man who was introduced to you as Clay Bertrand?
"Answer: Right.
"Question: Have you talked to this man on the phone?
"Answer: I talked to him almost every day."
That is what you are talking about?
MR. ALCOCK: That is right. But how does the Jury know that? How can I impeach him?
THE COURT: If you didn't have Mr. Andrews indicted or informed against, you could proceed, but you have got yourself in a legal bind because you informed against him. You have got him in a peculiar circumstance where he can invoke his constitutional privileges. You people have caused him to be put in this position, not me.
MR. ALCOCK: We haven't caused him to be put in any position, he caused himself, by lying under oath, to be put in that position and the Grand Jury indicted him and we convicted him. We haven't caused him to do anything.
THE COURT: Well, he is in a very unusual position, because being a Defendant he takes the role of a person who can invoke constitutional provisions which I will have to sustain any time he invokes them and I think they are properly brought up before me. MR. ALCOCK: But the whole point is, Your Honor, if he can get on this witness stand and make positive and unequivocal statements about Clay Bertrand not being the Defendant, the State has got a right to go into the other side of the coin and show him his contradictory statements as to just who Clay Bertrand is.
THE COURT: If they're in the Warren commission Report, but if you ask him a statement outside of this report and he invokes his constitutional --
MR. ALCOCK: I can't read that statement the Court is reading and show wherein that is contradictory, and ask him to explain the contradiction?
THE COURT: You mean this?
MR. ALCOCK: Right.
MR. DYMOND: If the Court please, I might say we are going to object to that.
THE COURT: Oh, I see. Then you would be bringing up the fact that he has been charged, not convicted.
MR. ALCOCK: Not convicted.
THE COURT: You can say, you appeared before the Orleans Parish Grand Jury such and such a date? Yes, I did. Did you make the following statements? Yes, I did. How does that statement compare to the statement before the Warren Commission? Can you explain. Without brining up the fact whether he is charged.
MR. ALCOCK: Yes, I have no intention of bringing that up.
THE COURT: I will permit that. You are going in -- I will hear you before I bring the Jury back, Mr. Dymond -- without stating that Mr. Andrews is under charges and he has a statement in writing which --
MR. DYMOND: If the Court please, if he takes that record of a pending case out and flashes it before the Jury, it doesn't take any understanding --
MR. ALCOCK: I'm not taking it out, I have got it right here.
THE COURT: Any statement he made that is recorded, as long as you don't bring before the Jury that he is under charges or facing a trial.
MR. ALCOCK: I am not going to.
THE COURT: You haven't tried that.
MR. ALCOCK: I am not going to.
THE COURT: I say, you haven't tried this new approach.
MR. ALCOCK: I will try it now.
THE COURT: Bring the Jury back.
THE COURT: All right. You may proceed, Mr. Alcock.
BY MR. ALCOCK:
Q: Now, Mr. Andrews, do you recall appearing before the Orleans Parish Grand Jury on June 28, 1967?
A: I appeared before them three times. I don't know whether one of the times was June or not, I don't recall.
Q: Well, if I showed you a transcript, do you feel you could peruse it quickly and determine whether or not this was your testimony (exhibiting document to witness)?
A: Yes. The document doesn't refresh my memory. It appears to be an official document dated June 28, 1967, so I can only assume that is the day on which I appeared, one of the three times before the Grand Jury.
Q: Would you read a little bit of the interior of it and determine whether or not you recall having made those statements under oath?
A: I can't tell. This appears to be an abstract -- it doesn't refresh my memory -- this appears to be an abstract of what I did say, and while it doesn't refresh my memory, it is written in here and apparently I said it, but it is not all that I said. This appears to be abstracts.
Q: This appears to be abstracts to you?
A: Yes, it appears to be. The first thing I recall doing is being sworn in. That is not on the first page.
Q: Is that the only difference? Did you read where it said "After being duly sworn by the Foreman of the Orleans Parish Grand Jury, was questioned and answered as follows"?
A: I told you it didn't refresh my memory to recall everything correct. All I can tell you is this, it appears to be an official document on June 28, 1967. There is no way possible that I could recall in 1969 what I said before a Grand Jury June 28, 1967. I don't recall. I appeared before the Grand Jury.
Q: Do you recall whether or not on that appearance -- and again without saying who you may have named, if anyone -- do you recall whether or not on that appearance you named anyone as Clay Bertrand?
A: I respectfully decline to answer that question for the reason it may, might, could or would tend to incriminate me. I have three articles in an open case in mind, Articles 123, 124, 125, the case now pending before --
THE COURT: Mr. Alcock, the status is that you have not read to him this contradictory statement.
MR. ALCOCK: All right. I will read the statement.
BY MR. ALCOCK:
Q: The question propounded to you was as follows:
"Q: And this was the man who was introduced to you as Clay Bertrand?
"A: Right.
"Q: Have you talked to this man on the phone recently?
"A: I talked to him almost every day. I have known him a long time.
"Q: Your testimony now is that this is the man who sent clients to your office? Talked to you on behalf of homosexuals?
"A: This is the man who sent clients to my office, sometimes they were fags, sometimes they weren't.
"Q: Is this the man who called you in the hospital and asked you to represent Lee Harvey Oswald?
"A: This is the man I believe called me. I believe -- what you all believe is your affair."
Do you recall making that statement?
A: Not now, but if it is in there apparently I made it. It doesn't refresh my memory.
Q: Going back to your statement before the Warren Commission, the statement that I believe you have right before you now -- do you have Page 331?
A: Right.
Q: Let me ask you this before we go into that. At the time that you were being interviewed by Mr. Liebeler, did you have in your mind the true identity of this man you named Clay Bertrand?
A: I respectfully decline to answer that question for the reason that it may, might, could or would tend to incriminate me or link me with a chain of circumstances. I have three specific provisions in mind, Articles 123, 124, 125, in the open case pending against me.
MR. ALCOCK: Your Honor, unless we can determine this, none of this will make any sense.
THE COURT: Mr. Alcock, I can't tell the State how to run their case. I sustain his objection to the last question.
BY MR. ALCOCK:
Q: Mr. Andrews, when you appeared before the Orleans Parish Grand Jury on June 28, 1967, do you recall making the statement -- and I will leave out the name of the individual. I asked you if you ever heard from Clay Bertrand after the time you were called about representing Lee Harvey Oswald in the assassination, and the answer was:
"I ain't seen nor heard of him since, not from Clay Bertrand, because I call him (and
there is a name). You are right -- I told you that, -- and I ain't seen hide nor hair of him nor heard from Clay Bertrand other than one time I remember when I was with Regis up there, I called him (and there is the name again), I was introduced to the man one time."
Do you recall making that statement?
A: No, but if it is what you read, I made it. I cannot recall what took place in that lengthy interrogation before the Grand Jury in 1967, but if it is written in there I made the statement.
Q: All right. Going back to your testimony before the Warren Commission, or rather before Mr. Liebeler, I address your attention to Page 334, I address your attention to the question propounded by Mr. Liebeler as follows:
"Q: Do you have a picture in your mind of this Clay Bertrand?
"A: Oh, I ran up on that rat about six weeks ago and he spooked, ran in the street. I would have beat him with a chain if I had caught him."
Do you recall making that statement?
A: No, but since it is written here apparently I made the statement. This is 1964, today is 1969. I have no --
Q: Go ahead.
A: -- recollection of making it. However, if it is here, apparently I made it at the time I was interrogated by Mr. Liebeler.
Q: Now, is that the same individual that you had reference to in the Grand Jury on the question-and-answer situation I have just read to you?
A: I respectfully decline to answer that question for the reason that an answer to that question may, might, would or could tend to link me with a chain or chain of circumstances that would ultimately incriminate me. I have three specific provisions in mind, Articles 123, 124, 125, to the open case in this case pending against me.
THE COURT: I sustain the witness's objection.
MR. ALCOCK: Your Honor, the State is not allowed to proceed on the cross-examination? The Court has completely cut the State off from impeaching this witness?
THE COURT: Sheriff, take the Jury in my office, please.
(Whereupon, the Jury retired from the proceedings.)
MR. ALCOCK: Your Honor, my position is basically this: When this man took the witness stand and made categorical statements about Clay Bertrand, he waived his Fifth Amendment rights about Clay Bertrand.
THE COURT: Stop right there. I disagree with you 100 per cent. Now, if we don't agree on that, we are not going to get anywhere.
MR. ALCOCK: In addition to that, Your Honor --
THE COURT: He can waive it when he wishes to waive it, and when he wants to invoke it I have to respect it. That is the legal situation. If he wants to waive it when it comes to the Defense side and he doesn't -- I cannot stop him -- if he wants to invoke it when you ask him questions, I have to rule on it.
MR. ALCOCK: Well, our client, the State of Louisiana, has a constitutional right of confrontation, and I think that that right of confrontation is being denied by this Court because we are not allowed to elicit from this man the many contradictory statements he made about Clay Bertrand.
THE COURT: Mr. Alcock, I feel sorry about your client but I have to follow your client's law, your client is the one that tells me what to do. I am following the law of the State of Louisiana whether you agree with me or not. I would like to say I have not denied you the right under Article 493 of proving a contradictory statement made by Mr. Andrews. Whenever you have read a statement to him up to this point, he has admitted making it. If he denies it, well, then you can bring evidence to show that it is true. He has admitted making the statements that you have asked him. In my opinion he has, he has not denied it. But when you go and rephrase a question or put a question to Mr. Andrews which is not in writing, not in the Grand Jury testimony, it is not in the questioning by Mr. Liebeler, the President's Commission attorney, if at that time the witness, Mr. Andrews invokes his rights, and I have to rule on them, when he does invoke them, and I think it is germane and that he is making a legal, good objection, I will rule in his favor. I have consistently done that. That is the legal situation.
MR. ALCOCK: Well, Your Honor, I would ask for a brief recess in order that -- I did not appreciate the Court's ruling to be of that nature prior to the luncheon recess. I am not saying that the Court didn't indicate that, I just say I did not understand it to be of that nature.
THE COURT: Let's go over it again so there can be no question. The best proof of a prior contradictory statement when it has been made in writing, is the writing itself.
MR. ALCOCK: I realize that.
THE COURT: You have given to the witness a copy of his testimony before the President's Commission when he was interviewed by Mr. Wesley J. Liebeler. You have also shown to Mr. Andrews a transcript of his testimony before the Grand Jury. If you wish -- if you remember my earlier ruling, I said you could question the witness on prior contradictory statements.
MR. ALCOCK: I know that, Your Honor.
THE COURT: I have not deviated from that ruling.
MR. ALCOCK: Well --
THE COURT: The only question that you and I are at odds about is that you feel since he testified like he did originally on direct, that he opened the door and therefore he more or less gave away his rights and privileges. You and I differ on that point, I say he did not, any time he wishes to invoke his constitutional privileges, I have to rule on it as of that moment irrespective of what he may have testified to on direct. Now that is where we disagree.
MR. ALCOCK: It is the Court's position that a man cannot answer a question and thereby ever open up the door on a Fifth Amendment proposition?
THE COURT: Not in my opinion. He can inadvertently answer 50 questions, and just because he answered 50, all of a sudden his attorney wakes up and tells him not to answer any more, and then he stops, you can't force him to answer that question.
MR. ALCOCK: Well, Your Honor, I think Mr. Andrews appreciates this, because he keeps repeating he doesn't want to say anything that might form a link in the chain.
THE COURT: That is correct.
MR. ALCOCK: Once he provides the Court with any link, the State or questioning party has a right to question him about the whole area and therefore make a complete or entire chain. Mr. Andrews appreciates this.
THE COURT: I will tell you what I will do. I am going to send the Jury upstairs, and, if you wish, I am going to take about a 20-minute recess, and let you with your assistants, let you go research it and show me an article in the law where I am wrong. If you can show me I am wrong, I will be happy to have you do that.
It is 17 minutes after 2:00. Suppose we take a recess for about 20 minutes, and if you need more time can you send word to me?
MR. ALCOCK: Yes, Your Honor.
THE COURT: You understand the legal proposition?
MR. ALCOCK: Yes, sir.
THE COURT: We will take a recess.
(Whereupon, a recess was taken.)