AFTER THE RECESS:
THE COURT: Just for the record, I had a note from Sheriff Heyd that one of the jurors or maybe more than one was to see a doctor, so we sent Dr. Rabin, the Coroner, up to see him. Now, he has been seeing these jurors every Friday and was intending to go see them this evening at the Rowntowner. It is nothing serious, but that is as far as I can go.
All right. Bring the jury in.
(Jury returns to the box.)
THE COURT: All right. Gentlemen, are the State and the Defense ready to proceed?
MR. GARRISON: The State is ready.
MR. DYMOND: The Defense is ready.
THE COURT: Call your next witness.
MR. GARRISON: I call Elizabeth McCarthy.
ELIZABETH McCARTHY, a witness called by and on behalf of the State, having been first duly sworn, was examined and testified as follows:
DIRECT EXAMINATION BY MR. GARRISON:
Q: Mrs. McCarthy, would you give us your full name, please.
A: Elizabeth McCarthy Badlian. I use my maiden name, McCarthy, in business.
Q: What is your business?
A: I am an examiner of questioned documents, ordinarily called a handwriting expert.
Q: Would you please state your education and your training in that field.
A: I have an AB degree from Vassar College, an ABS degree from Simmons College and an LLB from Worcester Law School. I studied identification of handwriting, typewriting, paper, rubber stamps, alterations, and erasures, ink, anything that goes to make up a document, with William E. Hingston, a noted documents authority, and the act of ink and other reagents on paper with Dr. Charles Schmidt, an ink chemist. I have been --
Q: Excuse me.
A: Go right ahead.
Q: Had you ever been qualified in any other states before this?
A: Yes. I have testified during the last 32 years in 28 states, the District of Columbia, and three foreign countries, where document evidence was material.
Q: Would you tell us of any important cases that you have worked on during those years.
MR. DYMOND: Your Honor, we object to this. When we asked the same question, it was denied.
THE COURT: I stopped you from going into the Lindbergh case, I will sustain the objection.
MR. ALCOCK: The Court just mentioned the case.
THE COURT: I know, but he asked the question, That is when I stopped him, I said the man shouldn't go into it and tell us.
BY MR. GARRISON:
Q: Well, during the last 15 years how many questioned document cases have you testified in as an expert?
A: I get two cases a day involving questioned documents, and on the average about a quarter of them go to court, the others are settled on opinion.
MR. GARRISON: Your Honor, I submit the witness as an expert on questioned documents.
THE COURT: Do you wish to traverse?
MR. DYMOND: Just a few questions, Your Honor.
TRAVERSE EXAMINATION BY MR. DYMOND:
Q: Mrs. McCarthy, you testified that you had an AB degree, is that right?
A: Yes.
Q: Now, was there any handwriting study in connection with that AB degree?
A: No, that was a baccalaureate degree except for the study of chemistry.
Q: How about your Bachelor of Sciences?
A: No, that was a business degree.
Q: And your legal degree, that is, your LLB degree, did you study handwriting in connection with that?
A: No.
Q: Now I understand that you have studied handwriting and document analysis under two individuals, is that correct?
A: Yes.
Q: Who was the first one whom you named?
A: William Z. N. Hingston, H-i-n-g-s-t-o-n.
Q: I see. When did you take this course under Mr. Hingston?
A: I studied with him for three or four years from around 1930 to 1933 or '34.
Q: And who was the other individual?
A: Charles Schmidt, S-c-h-m-i-d-t.
Q: And when was that and for how long?
A: That was intermittently when there were new ink problems, like when ballpoint pens came in in 1945, and quick-drying ink and various other things.
Q: Now with respect to Mr. Hingston, was that a formal school that he was conducting?
A: No. He wrote three books on the subject and he --
Q: I mean how did you happen to study under him?
A: Well, I had passed -- accidentally. I had passed the bar, and my law office adjoined his, and I became interested. I think after the Lindbergh case many people were interested in handwriting, and therefore I just started studying and started more and more to give time to it.
Q: I see. This man had an office next to yours and you used to go by there?
A: And a laboratory. Yes, that is right.
Q: And was that the extent of your training under him?
A: No. I familiarized myself, of course, with all the authorities on the subject, and read, of course, accounts of famous cases. I have amassed typewriter specimens -- as you know, these machines change very rapidly -- and patterns and ink and paper specimens. It is a continuous learning process.
Q: I see. And the other training that you mentioned when the ballpoint pen came out, you said that was intermittent training?
A: I beg your pardon?
Q: The other training that you had at the time that the ballpoint pen came into popular usage.
A: I studied about --
Q: May I finish, please. You say that wasn't intermittent training that you had with that individual?
A: No, I say I studied with him originally at the time I studied with Dr. Hingston, and then as various problems, new problems, came along, I spent hours -- because he was an authority -- learning about those.
Q: Now, where is your office located, Mrs. McCarthy?
A: 40 Court Street in Government Center in Boston, Massachusetts.
Q: I see. That is all, Ma'am.
MR. GARRISON: Let me ask one more question.
THE COURT: I don't think it is necessary.
MR. GARRISON: All right. Submitted.
THE COURT: If it is submitted, I will rule that the witness, Mrs. Elizabeth McCarthy, is qualified as an expert in the field of questioned documents and can give her opinion in relation to that field.
CONTINUATION OF DIRECT EXAMINATION BY MR. GARRISON:
Q: Mrs. McCarthy, did you have occasion to examine some exemplars of the genuine
handwriting of Clay Shaw in this case?
A: Yes.
MR. GARRISON: May I have Exhibit D-30 through D-43.
(Documents handed to Counsel.)
BY MR. GARRISON:
Q: (Exhibiting documents to witness.) I show you some documents marked "D-30"
through "D-43," and I ask you to familiarize yourself with them and see if you have ever seen them before.
A: Yes, I have.
Q: When did you see these previously?
A: I saw copies of them, photostats, and --
MR. DYMOND: Your Honor, we object.
A: (Continuing) -- and the originals.
THE COURT: What is your objection?
MR. DYMOND: We object to this witness testifying she saw copies of these, your Honor, unless it is first established, Your Honor, that they were copies. We have no way of knowing what she actually saw.
THE COURT: Mr. Garrison, would you pursue the field of where she got the copies first, and we will find out if they were copies.
BY MR. GARRISON:
Q: Mrs. McCarthy, did you see those documents before?
A: Yes.
Q: Under what circumstances did you see them?
A: I examined these documents D-30 through D-43 in the property room in the cellar of this building.
Q: Are those the same documents you are holding in your hands that you examined?
A: Yes.
THE COURT: I will rule that she may testify concerning these documents.
When you say the property room, you mean the property room of the Clerk's Office in the Criminal District Court, which is located in the cellar, the basement of this building?
THE WITNESS: That is right, Your Honor.
THE COURT: You may proceed.
BY MR. GARRISON:
Q: Now, thereafter did you have occasion to make a study of a questioned signature which in State Exhibit S-55 reads as: "Clay Bertrand" (exhibiting document to witness) and I show you the signature, S-55 being the VIP signature. I ask you if you have ever seen this signature, "Clay Bertrand," before (exhibiting document to witness).
A: Yes.
Q: All right. Now suppose we put this questioned signature right there for a moment. Now, as a result of your studies of the signatures of the Defendant Clay Shaw, and Defense Exhibits 30 through 43, and as a result of your study of Exhibit State-55, did you reach any conclusion?
A: Yes.
Q: Would you state your conclusion.
A: It is my opinion that it is highly probable that Clay Shaw signed the name "Clay Bertrand" on the -- is that Exhibit 50?
Q: That is State Exhibit 55.
A: -- on State Exhibit 55 on the last line of the page, 12/14/66/
Q: Would you give us your reasons for that conclusion?
A: I find all of Mr. Clay's (sic) normal, natural, unconscious writing habits in this questioned exhibit, "Clay Bertrand." He is a very facile, graceful writer, he writes with certain proportions, certain types of initial and connecting and terminal strokes with a light, even, quick pen line. All of these characteristics I find in the questioned exhibit. This is an unusually agile, able writer, and the writing agility and ability in both is remarkably similar. In addition to that I find similarities in all of his letters with the exception of the capital "B." I do not find a captal "B" made exactly in the fashion of the questioned signature, and this may not be unusual because this man was not writing his own last name and therefore it is not unusual when you write the capital letter of a name that is not your own to write it in a different fashion from your normal writing habits. I find his particular type of small "a", small "e", the "r", which is made like an undotted "i", the samll "n" also. The terminal "d" is a rather unusual type of small "d." Many of us have two or three ways of making letters, and his perhaps more usual way, at least in these samples, is a final "d" that just goes up in the air with a hook, whereas this "d" returns and is a looped stroke, and that is found I believe in Exhibit 34, D-34, Exhibit D-35 and all of these are -- Exhibit D-42 and D-43. He has a trouble spot in the capital "N" in New Orleans he sometimes retraces it, makes it with a little more difficulty than perhaps the rest of the writing which is very flowing. And the final part of this letter is a capital "V". It is a downstroke, sometimes it is a repeated downstroke. Then the final stroke is a capital "B" with curved edges. The "o" is an ovate letter with the downstroke coming through the center of the "o". I find in the rest of the "Orleans" similarities in direction, in shape of the letters, and it is his habit to make a long -- in many instances, for instance on Exhibit D-30, to make a long straight comma between the "New Orleans" and "Louisiana." and D-34 and D-30 and some others have this straight comma that is rather long and goes well below the line. Mr. Clay (sic) at times makes a capital "L" in "Louisiana" with a curved top looped, and other times without one, a curved top loop and a loop at the left and at the bottom of the stroke for one that is comparable to the one on the questioned -- I mean D-34. I guess that is the only one in which he made a curved top, but he makes an understroke on the "L" which is like an "H". It is quite a large curved upstroke. I am not identifying the figures because I don't believe I have sufficient, but the pen line in the figures -- I don't have sufficient basis for the figures -- the pen line in the figures is very much like his. The direction of the diagonal and the hooped overstroke is very comparable and similar to his.
For all these reasons, since I find no appreciable variations, I have come to the opinion that I just gave.
MR. GARRISON: Mr. Dymond, your witness.
CROSS-EXAMINATION BY MR. DYMOND:
Q: Mrs. McCarthy, when were you first retained on this case?
A: I believe it was yesterday.
Q: Yesterday?
A: Yes.
Q: And when did you arrive here in New Orleans?
A: Last night.
Q: And when did you commence your comparative study of these documents?
A: Last night.
Q: Where?
A: Well, photographs I had. I didn't have the originals, I had photographs at my hotel.
Q: When was the first time that you saw the originals?
A: This morning.
Q: Now, did you bring any photographic equipment with you when you came down?
A: No. I wouldn't have time to make them. I understood the trial was ending.
Q: And how much time did you spend in connection with your analysis of these handwriting samples of --
A: I think four or five hours.
Q: How much time do you usually spend in examining a questioned document and comparing it with other writings for the purpose of arriving at a conclusion or an opinion?
A: Different times depending on the difficulty of the problems.
Q: Do you think this was a real easy problem here?
A: I don't think it is hard, no.
Q: You don't think it is hard?
A: No.
Q: Have you worked with any enlargements?
A: Yes, I would have liked to have enlargements.
Q: I say, did you work with any?
A: No.
Q: You never did.
A: I examined them microscopically. I have a binocular document microscope.
Q: And what equipment did you bring down here with you, Mrs. McCarthy?
A: I will show you (opening case). This is the binocular document microscope, and these are two little Lupes -- L-u-p-e-s -- they call them.
Q: I see. Now, are you being paid to testify in this case, Mrs. McCarthy?
A: Well, I hope so; it is my business.
THE BAILIFF: Order in court.
BY MR. DYMOND:
Q: Well, do you have an agreement to be paid?
A: No, I don't. Mr. Garrison said to submit my bill. He really didn't ask me about fees.
Q: You do expect to charge a fee though?
A: Naturally, that is my business.
MR. DYMOND: That is all, ma'am.
THE COURT: Do you have any further need for the witness?
MR. GARRISON: No, sir.
THE COURT: Mrs. McCarthy, you are excused from the obligations of the subpoena.
(Witness excused.)
THE COURT: Mr. Garrison.
MR. GARRISON: Your Honor, some members of the Jury may have some curiosity about looking at these documents. Could we submit them to them now to look at them for a few minutes?
THE COURT: All right. Let the jurors have the documents. Would you hand them to them, Mr. Sullivan.
(Documents exhibited to Jury.)
MR. DYMOND: If the Court please, we will ask at this time that the enlarged exhibit containing the signatures be brought out here so that the Jury may see that, too. It is in evidence. Where is it -- back in your Honor's office or what?
THE COURT: I understand what you are talking about. Is there any objection?
MR. ALCOCK: No, Your Honor, no, it is just one Exhibit D-30.
THE COURT: That is correct. As soon as we finish this, we are going to recess for lunch. I would appreciate it if everybody would sit still.
MR. ALCOCK: If they want to observe this as they are observing these exhibits, I have no objection, but I don't think we should highlight this particular exhibit by putting it on the board.
THE COURT: I know of no other way for them to see it.
MR. DYMOND: I have no desire to highlight it. It is a rather large exhibit.
THE COURT: You may put it on the easel.
(Photographic blowup displayed on easel. Pause in the proceeding for examination of the documents.)
THE COURT: Mr. Garrison, does the State intend to call any other witnesses?
MR. GARRISON: No, your Honor.
THE COURT: Then I would suggest to the State and the Defense that when we recess for lunch you let me have your requests for special charges so that I can be going over them when I prepare my general charge which I have been preparing for the last two days.
I might state, gentlemen, that I will have my charge Xeroxed and I will give both sides a copy of it before I charge the Jury.
As I understand it, gentlemen, we don't want to interfere with the jurors looking at this, but this is another matter. I understand the State has requested rebuttal evidence, and when we return from lunch, which we will go to in a reasonable time, Mr. Alcock, you asked previously -- and it was not objected to by the Defense -- to give you some time to make some notes in anticipation of your opening argument.
MR. ALCOCK: Your Honor, I will be prepared when we return from lunch.
MR. DYMOND: Your Honor, we might mention to the Court at this time that there is a motion which we would like to file which should be filed out of the presence of the Jury and which we can either file after the Jury is taken out or before they come back.
THE COURT: Well --
MR. DYMOND: It won't take but a couple of minutes.
THE COURT: When we finish with this operation, I will have the Jury back for 1:30. We will hear your motion and let the jurors remain upstairs.
MR. DYMOND: Fine.
THE COURT: But as I understand, the State will be prepared to proceed with argument at 1:30 after we have heard your motion.
MR. ALCOCK: Yes, Your Honor.
THE COURT: And then we will go through with argument at 1:30 until we finish it up this afternoon.
MR. ALCOCK: Yes.
THE COURT: I might tell the jurors that Dr. Rabin, the Coroner, will again visit with you gentlemen this evening. He is coming over to the motel to see you gentlemen.
I might state to the Jury that in my charge I will state to them that if they wish to examine any exhibits of the State or the Defense, they are entitled to see them before they retire. Once they retire they cannot send for any documents, and the new law, is that they cannot have any part of the testimony read back, they have to depend on their memory. Years ago they could read it back, now you cannot.
All right, gentlemen. Is the Jury finished?
I would like to let you gentlemen know that at 1:30, after we hear a motion from Mr. Dymond, the State will start the argument, and except for a brief pause at 3:00 or 3:30, when one person has finished arguing we will continue on with the argument for the rest of the afternoon, and then I will charge you on the law.
Again I must admonish and charge you not to discuss the case with any other persons until it is finally given to you for your decision and verdict.
We stand recessed until 2:00 o'clock.
. . . . Thereupon, at 12:00 o'clock noon a recess was taken until 2:00 o'clock p.m. . . . .