THE COURT: Is the Defendant and the State ready to proceed?
MR. DYMOND: Yes, Your Honor.
MR. ALCOCK: Yes, sir.
THE COURT: Proceed, Mr. Dymond.
BY MR. DYMOND:
Q: Now, Mr. Russo, getting to this meeting that you have testified as to having witnessed, is it a fact that prior to this time you had heard David Ferrie talking about killing or assassinating presidents in general?
A: Right, yes.
Q: And you say that at this meeting which you have described as having taken place on Louisiana Avenue Parkway, there was a great deal of general conversation about that, is that correct?
A: At the meeting?
Q: Yes.
A: Yes, sir.
Q: Did this start off as a general conversation about assassinating a president or the President, or how was it put?
A: Oh, well, there was a record or something on the record, a record, on the radio and there -- it was in Spanish, Ferrie had some clipping with him -- I at that point, I'm not sure if it was about the killing of Kennedy, there was a lot of anti-Kennedy sentiment and that was carried over with Ferrie from before, he was sort of anti-Kennedy.
Q: But this sort of followed a pattern of what you had heard before from Ferrie. Is that correct?
A: Right.
Q: As a matter of fact, Mr. Russo, isn't it a fact that you did not really take this seriously what you heard up there on Louisiana Avenue Parkway?
A: Initially you could not believe Ferrie and you could not believe him, from the first encounter I had with him he was just prone to the spectacular.
Q: I see. Did this not have all the characteristics of a bull session that you had related?
A: Every characteristic of it.
Q: It did?
A: Yes.
Q: Would it be possible that that is why you did not take it sufficiently seriously to accentuate it in any statement that you gave to Mr. Sciambra when he came to Baton Rouge?
A: Well, I don't kow if that was one of the reasons, everything was jammed into a couple of hours up in Baton Rouge, and most of it was looking at photographs, when or where I had seen these people, and he didn't go into great detail, I did talk to some extent about the way Ferrie felt about certain things. I thought this was important.
Q: But even at that time you still regarded what you had witnessed as more or less a bull session. Is that correct?
A: At that time I really didn't have an opinion because Ferrie's photograph had come into the newspapers.
Q: But actually you didn't have a contrary opinion to that either, did you?
A: Right.
Q: In other words, you were on the fence as to considering this meeting that you say you witnessed as a bull session or something serious. Is that right?
A: Essentially.
Q: Now, Mr. Russo, once again, returning to the meeting on Louisiana Avenue Parkway, did David Ferrie ever request that you leave the premises before they started talking about this?
A: No. In other words, I was not there all of the time. There was a spiral staircase and I did walk down that to go to the street a couple of times. In the very beginning there were a couple of remarks as to why I was there, you know, things of that sort.
Q: The record player was playing while this talk --
A: No, that was at the very beginning the record player was playing or the radio. It could have been one or the other.
Q: Did anyone there swear you to secrecy or threaten to do anything to you if you should tell about this meeting?
A: No.
Q: Never did. And actually, Mr. Russo, you left the premises that night not knowing whether it was just a bull session or what it was. Is that correct?
A: Right.
Q: Now, Mr. Russo, in the memorandum, the Sciambra memorandum as we will call it which has been introduced as "State and Defense 20," Mr. Sciambra reported that when you made the statement that whenever you came around the roommate would leave, and my notes do not indicate that you corrected that statement.
A: Where is that, I will --
Q: It is on page 4, a little -- right about the middle of the page.
A: Let's see.
Q: I will read that to you, if you wish, "He said that the roommate never talked to anybody, as soon as anyone would come into Ferrie's apartment, the roommate would get up and leave and go into another room by himself."
A: Right, I see it.
Q: Was there any reason for you not correcting that in view of your testimony that the roommate did stay in there during this discussion?
A: Well, it -- a little bit, a little bit was not included there, one of the things was that initially I probably told Sciambra or whoever I was talking to in New Orleans that following week that the roommate and I did not essentially get along from the initial encounter, and he did get up and leave at that time, that first time that I had ever seen him, and whether or not he did this every time, he didn't do this every time, only saw him three or four times, three of those four times he did leave and was not around.
Q: Now, Mr. Russo, you have said that you were on the fence as to whether you believed if this was a bull session or something serious.
A: '67 you are talking about? In Baton Rouge you are talking about?
Q: That is correct, you still feel that way?
A: Whether it was serious or not?
Q: Yes.
MR. ALCOCK: At this time, let me object to that question, Mr. Russo's personal feelings about it aren't really relevant, it would be the feelings of the 14 men to my left whether or not the conversation is serious.
THE COURT: I sustain the objection.
BY MR. DYMOND:
Q: Now, Mr. Russo, I understand that Mr. Sciambra showed you several photographs when he was in Baton Rouge, and that after he put a beard on one of the photographs, you
identified that photograph as the roommate. Is that correct?
A: Well, when he pulled out the photograph, you are talking about the one of Oswald, when he put out that one, when he pulled out that one I said "That is his roommate" and he said "That is Lee Harvey Oswald, isn't it," and something was said to the effect "What did you mean," all of that sort of stuff, and I said, "Well, the guy that I knew had a beard or whiskers, and then he drew a little bit on it or I drew something on it to get it straight.
Q: You say you didn't know whether you or he or both of you put the whiskers on him?
A: I think both of us did.
Q: What happened after that?
A: Well, it was the -- it was erased, we did it real lightly in pencil and we erased it and we will do it over, it never did come to anything, he said "Could you come back to New Orleans Monday," and I said, "If you call the office."
Q: So then you never did identify in Baton Rouge a photograph of Oswald as the roommate. Is that right?
A: The first thing that came out of my mouth, I said, "That is his roommate," and he said "No, that is Lee Harvey Oswald," and we got into a tangent, and I said the guy I knew had whiskers on him and he asked me to come down on Monday, so probably technically I didn't identify him.
Q: Did you ever tell Mr. Sciambra in Baton Rouge that the photograph was a representation of the person to whom you have referred as the roommate?
A: Yes, that is the first thing that I said when he pulled the photograph out.
Q: You told him that was the roommate?
A: That is Ferrie's roommate, and he said that is Lee Harvey Oswald, and he didn't really answer me when I gave him that, he started asking me "Why did you say that" and I said that is the guy I knew as Ferrie's roommate and I said but the guy I knew had whiskers on.
Q: But you did identify the photograph as Ferrie's roommate?
A: Well, one of the photographs, yes.
Q: In Baton Rouge?
A: In Baton Rouge, right.
Q: Now, do you recall the preliminary hearing in which you testified in this case, do you not?
A: Right.
Q: I have reference to page 211 of your testimony at the preliminary hearing, which I will read to you and ask whether your testimony remains the same at the hearing after hearing this. This is in answer to a previous question, let me get the first question on page 2 -- what is that, 210, 210, and you say the absence of three or four days growth of whiskers, you say, would make you unable to identify him, and the answer is "I do not know if it was three or four days, it just was not a beard, they drew a composite photograph and they had it on these things, it has been corroborated, so to speak," and the question "You say they drew a composite photograph," and the answer is, "In other words, they had it, it is not a beard, not a beard it is something in between a beard and just whiskers," and the question is, "Are you telling us that a photograph was taken and they altered it and showed it to you and it was that altered photograph that caused you to be positive," and the answer is "No, sir, the first time they showed me the photograph, the man up there said would you mind looking at these photographs, and there was a bunch of them, and, you know, he just put one in front of me and said do you know this guy and I said no -- yes, or whatever the circumstances were, and he put the picture of -- at that time I said it was his roommate. And he brings the picture of his roommate, puts the picture of the roommate in front of me, and I said that I knew him, he wanted to know who that was, and I said that is the roommate, and then I looked at it again, and then recognized the eyes or something, and I said no, it is not, I said that is Oswald, I don't think it is the roommate -- he asked me what the difference was and I said this guy is clean, the picture they showed me was very clean, had a white shirt on and they just put whiskers on," and the question is, "Who put the whiskers on," and the answer is "One of the artists of the DA's staff," and the question is "Do you know which one," and the answer is "I can point him out," and the question is "Do you see him in court at this time?" and the answer is "Yes," and the question "Will you point him out," answer "Yes." It goes on, "Mr. Dymond: Let the record show that the witness indicated Charles Jano, examination by Mr. Dymond, question, "What were the whiskers put on with, pen and ink or what," and the answer "It was a pencil and they started in pencil and they first asked me to do it in Baton Rouge --"
MR. ALCOCK: I object to any hearsay being read by Counsel.
MR. DYMOND: I am just reading from this man's testimony.
THE COURT: That record is not in evidence.
MR. DYMOND: It is a contradictory statement, if the Court please.
THE COURT: The fact that a transcript of the preliminary hearing is in your possession for purposes of attacking the credibility of the witness does not mean that you could read hearsay.
MR. DYMOND: I will skip the hearsay in here, but I have direct statements by this man.
THE COURT: On contradictory statements, you will have to abide by the rules.
"Q: What were those whiskers put on with, pen and ink or what?
"A: It was pencil, and they started in pencil. At first they asked me to do it in Baton Rouge."
MR. ALCOCK: Objection right there. Who is the "they" that asked him in Baton Rouge? That is hearsay.
MR. DYMOND: If the Court please, this is a question of this man merely explaining the circumstances surrounding a prior contradictory statement.
MR. ALCOCK: That is no exception to the hearsay rule, Your Honor. That is necessarily hearsay.
THE COURT: What they "asked me to do in Baton Rouge"?
MR. ALCOCK: What "they" asked me to do? Who? They are not subject to cross-examination. That is hearsay.
MR. DYMOND: I refer the Court to Article 295 of the Code of Criminal Procedure, the last paragraph of which reads as follows: "The transcript of testimony given by a person on a preliminary examination may be used by any party in a subsequent judicial proceeding for the purpose of impeaching or contradicting the testimony of such person as a witness."
That is 295, the last paragraph.
MR. ALCOCK: I have no quarrel with that proposition of law and no objection to Mr. Dymond using this for impeachment purposes, but I do have objection to his getting hearsay in under the guise of impeachment.
MR. DYMOND: Your Honor, the article doesn't make any explanation, it says the transcript may be used, it doesn't say a portion of the transcript may be used.
MR. ALCOCK: Mr. Dymond knows well if he is referring to a witness who is not available, then the transcript would be read. This is not strictly under impeachment.
MR. DYMOND: I don't know if this witness is available at all. This is a police officer.
THE COURT: Let me take a look at this, let me take a look at this. I think you are referring to the third paragraph, is that correct?
MR. DYMOND: The last paragraph, yes.
MR. WILLIAM WEGMANN: Read the comment, Judge, under (c).
THE COURT: I will overrule the State's objection under the authority of the third paragraph of Article 295. You may proceed.
BY MR. DYMOND:
Q: "Q: What were these whiskers put on with, pen and ink or what?
"A: It was a pencil and they started in pencil. At first they asked me to do it in Baton Rouge if I could, but all I did was draw straight lines and that did not fit. I said that was not him so they -- somebody that knew about art or something -- Mr. Jano."
Do you deny having testified in that manner in the preliminary hearing?
A: No.
Q: Now actually Mr. Jano did not put any whiskers on that photograph until after you came to New Orleans, did he?
A: Right.
Q: Is it not a fact then that you did not identify a photograph as the roommate in Baton Rouge, as you previously testified?
A: Is it not a fact that I did not?
Q: That is correct.
A: I did identify a photograph in Baton Rouge.
Q: Would you tell me here why you stated at the preliminary hearing that you could not identify, that you did not identify --
A: If you will look at that one quote where you said, "That is not him," would you read that one little bit, "That is not him"?
Q: I will read the whole answer for you.
A: Just that little bit is all I need.
Q: All right. "At first they asked me to, in Baton Rouge, if I could, but all I did was draw straight lines and that did not fit. I said that was not him, so they had somebody that knew something about art or something --
A: Mr. Jano. "That was not him," I used that on several occasions, even in Baton Rouge I used that expression I am almost sure, not verbatim those words, and I used it in New Orleans about three or four hours with Mr. Jano. That picture he was drawing, "This is not it either." He would go to another -- this was not it either. Essentially I said about the same thing, but this doesn't bring up anything about Baton Rouge.
Q: And is that the only explanation that you have for this?
A: Isn't that the key, that you are saying that was not him?
Q: That is correct. The key is that I am asking you whether you identified a photograph of Lee Harvey Oswald as being a photograph of the roommate while you were still in Baton Rouge.
A: Absolutely.
Q: And you have no other explanation as to why you made this statement in the preliminary hearing?
A: I am saying essentially the same thing there, Mr. Dymond. I said that was not him, told that Mr. Jano three or four times.
Q: Your testimony is after saying "It is not him," you got to a later picture and said, "That is him"?
A: Right.
Q: Then why did you refer to having to get somebody that knew something about art, Mr. Jano?
A: Because Mr. Sciambra didn't know how to draw, and I tried and he tried, and I drew straight lines and I can't even -- I don't have good handwriting.
Q: And Mr. Jano didn't touch the photograph until you got back in Baton Rouge?
A: Mr. Jano -- that is right -- Monday.
Q: Jano was not in Baton Rouge when Mr. Sciambra was talking to you, was he?
A: No.
Q: Well, are you denying then that you meant by this testimony at the preliminary hearing that you did not identify the photograph until Mr. Jano put whiskers on it?
A: Well, let me explain it this way: In Baton Rouge we never did resolve it in the sense of getting a correct photograph, in New Orleans the same thing, and even the final photograph, it was after a couple of hours. The final photograph that Mr. Jano did finally get wasn't perfect by any means, and I even told them that, but it was the best he had done. I was tired, but we went through seven or eight different editions, went through a book with beards in it, and I said, "No, that is not it," and "That is not it," and "That is not it," so some of the photographs that he did draw -- he was dark or he was light or he missed something or didn't have something, and I said, "That is not him either."