BY MR. DYMOND:
Q: Now, Mr. Russo, you have testified previously that you do know Mr. Jim Phelan, is that correct?
A: Right.
Q: When was the first time that you saw Mr. Phelan?
A: It was right after the preliminary hearing, Sunday evening, I think.
Q: Would March 21, 1967 at your home in Baton Rouge refresh your memory to that?
A: If that be approximately right.
Q: Would it be approximately right, is that correct? About what time of day did Mr. Phelan come to your house?
A: In the evening.
Q: Is that the occasion upon which you say Mr. Matt Herron was present?
A: Yes, sir, the photographer.
Q: On that occasion did you tell Mr. Phelan that in the letter that you wrote to Garrison you said merely, "I had occasion to meet Ferrie and some of his friends and I am willing to tell you what I know about them"?
A: Not exactly but that is one of the things I said.
Q: Did you tell them there was more to the content of the letter than you mentioned?
A: I don't know exactly what was asked about the letter that I wrote Garrison, and I knew Ferrie and was willing to cooperate and would they have somebody out of the DA's office contact me.
Q: Did you admit to Mr. Phelan that in that letter you didn't mention Shaw, Bertrand, or Oswald?
A: I didn't know who Shaw was?
Q: Did you admit to Mr. Phelan at that time the letter did not mention Shaw, Bertrand, Oswald or an assassination plot at Ferrie's apartment?
A: Right.
Q: You admitted that to Mr. Phelan?
A: Yes.
Q: At that time?
A: Yes.
Q: Did you also have a discussion on that same occasion with Mr. Phelan concerning the interview that you had given to Mr. Bill Bankston a reporter for the Baton Rouge State Times?
A: Several things were covered and he probably mentioned that, I have a recollection he brought Bankston's name in the conversation in May, not March.
Q: At that time did you give to Mr. Phelan as an explanation for your granting of an interview to Bankston the fact that you wanted to get the whole story down with somebody?
A: You're emphasizing the word "whole," no.
Q: Forget the emphasis.
A: I told him I had called the Baton Rouge Detective Bureau on that Friday or sometime around 11:00 o'clock in the morning when I decided against coming to New Orleans, it wouldn't be April it'd be May and I talked to someone at the Baton Rouge Detective's Bureau and I asked them could I make a statement and they said to me when are you going to New Orleans and I said I am going again in a couple of weeks, and Mr. Phelan at that time, I had talked with a couple of friends of mine and told them a little bit and I then said I will call up the newspapers and tell them about it, and I didn't know Mr. Bankston and all I know is he answered the phone and I said to him "Will you come down" and he said we will send somebody.
Q: Did you tell Mr. Phelan you wanted to get the whole story down with somebody --
A: I said I wanted to give a statement to somebody so it would get to Garrison, I don't know about the whole story.
Q: Up to that time had you telephoned Garrison and talked to him?
A: The New Orleans Office I don't think, I may have tried Friday, I'm not sure.
Q: So in other words before you telephoned Garrison you telephoned the television station?
A: I telephoned the Baton Rouge Detective Bureau.
Q: And also the Baton Rouge States-Times and how about the television station?
A: I didn't call the television station.
Q: No. How about the Baton Rouge States-Times?
A: I called them.
Q: Before you talked to Garrison, is that correct?
A: Yes.
Q: Was it during this same visit by Mr. Phelan that he showed to you the copy of the Sciambra memorandum?
A: He had a copy, yes, sir.
Q: Did he hand that to you and show it to you and permit you to read it?
A: He did.
Q: Is it your testimony you did not read that complete memorandum?
A: Not word for word, no.
Q: At that time what did you say?
A: Not word for word, no.
Q: Did you thumb through it or what did you do?
A: Just took it and looked through it quickly and he had asked me before that if I would look through it and see if any of the contents were not correct and then on the back page one part caught my eye where he had circled something and had a line under it and an arrow to the left or right side with notes on it and when I came to that I told him that was not so.
Q: Did Mr. Phelan tell you he was in the process of writing an article for the Saturday Evening Post?
MR. ALCOCK: I'm going to object to anything that Mr. Phelan might have said.
MR. DYMOND: If the Court please, Mr. Phelan is going to be available to testify.
THE COURT: You can then ask the question when he takes the stand.
BY MR. DYMOND:
Q: Then you deny that you made only four minor corrections in the Sciambra memorandum
when Mr. Phelan handed it to you?
A: Most of the time centered around other things and not around the memorandum and most of the time around the part that was circled, the words "twice" I think on page 5 or 6.
Q: Weren't you checking that memorandum for accuracy?
A: For accuracy, I was told to look it over and see if there were any glaring mistakes, some omissions, some corrections and essentially a lot of stuff was correct.
Q: Didn't you point out four inaccuracies?
A: I may have pointed out four but the one he was interested in was the one "twice."
Q: And you say that the statement contained in that memorandum to the effect that you had seen this defendant only twice was circled by him in pencil?
A: I don't think pencil, I think it was ink.
Q: It was ink?
A: It was.
Q: But you -- had you spoken to any representative of the District Attorney's Office prior to Mr. Phelan coming to Baton Rouge?
A: I had.
Q: And you had been informed he was coming and informed of the purposes of his visit?
A: I had.
Q: To whom had you spoke?
A: Well, perhaps a couple of people, I know I talked to Andrew Sciambra and another too but at that time I didn't know everybody in the office.
Q: That is the Mr. Sciambra that wrote the memorandum?
A: Correct.
Q: Is it not a fact that when you noticed the statement that you had seen this Defendant only twice you should have said that, you should have said that I should have said three times?
A: I should have said to him?
Q: To Mr. Phelan.
A: What do you mean, when he was up there and he asked me that?
Q: Yes.
A: I said definitely it was an error twice was wrong and I should have said three times.
Q: Is it not a fact you admitted to him that you had told Mr. Sciambra of only seeing him twice?
A: That is an error.
Q: You deny that?
A: Absolutely.
Q: Did you receive a phone call from Mr. Phelan while he was in New York subsequent to this interview?
A: I received several phone calls from him, it was probably subsequent to the interview, yes it was.
MR. ALCOCK: Your Honor, I am going to object to anything along this line unless he received a sufficient amount of phone calls to recognize the voice of Jim Phelan but somebody who identifies himself as Jim Phelan, he wouldn't know whether it was.
BY MR. DYMOND:
Q: Is it not a fact that you invited the person on the other end of that telephone, whom you believed to be James Phelan, to drop down and see you when he got back to New
Orleans?
A: When I was on North St. Patrick Street, you're talking about later on?
Q: I am talking about after the March 21 visit, yes.
A: Yes.
Q: You did invite him to drop by?
A: I told Matt Herron or somebody that knew him to tell him to call me and he returned my phone call and said, I said when you're in New Orleans why don't you check me out.
Q: When Mr. Phelan got back to New Orleans in late April of 1967 as a matter of fact did you not see him on five or six visits?
A: Not long visits, four of them were long visits and two, if I saw him two other times they were probably for a few minutes, yes.
Q: Where were most of the visits?
A: 619 North St. Patrick.
Q: Do you remember on one occasion upon which Mr. Phelan took you to dinner out at Fitzgerald's?
A: Fitzgerald's yes.
Q: Yes. Do you remember another occasion upon which you and Mr. Phelan went down to the corner poolroom and played a few games of pool?
A: Right, yes.
Q: On the night after you played pool with Mr. Phelan do you deny that you made this statement to him: "If Garrison knew what I told my priest in Baton Rouge after the Shaw hearing he would go through the ceiling"?
A: No, I don't deny making that statement but it needs somewhat of an explanation in context. I had told quite frankly many people this, and let me give you a little backup also. I told Phelan a great deal about colored versus, black and white, something I mentioned today as to how I felt of the period of time from February 24 wherein I got involved all the way up until the time he was there and also past that time actually. If you were at a basketball game or the fights you have a light of vague memories and recollections that you have of that occasion, but from February 24 until that time my whole association in this case as the accuser of the Defendant, or witness against the Defendant, had been what I called a blank grey area and I would rather have if I could pull myself out of it and I went into a long explanation of that to him. Now, if you will repeat just exactly the statement I made --
Q: "If Garrison knew what I told my priest in Baton Rouge after the Shaw hearing he would go through the ceiling."
A: Essentially what I told the priest was that, and I'd like to be out of it, such a personal turmoil and upheaval in my own personal world and that it would not be the same whether Mr. Shaw was found guilty or not, that had no bearing, that my life would never be the same because there were so many news people, some with other motives such as DSU and NBC that not only reported the news incorrectly but quite often attempted to make news, things of this sort.
Q: Why did you think that would make Mr. Garrison go through the ceiling?
A: It seemed like they had got me in a crossfire and I didn't want to name names and that if I could have avoided the whole thing I'd rather not remember anything.
Q: You deny in that same conversation you went on and volunteered to Mr. Phelan that you told the priest that you wanted to sit down alone with Shaw in a room and listen to him breathe and talk to him and ask him some questions so you could resolve doubts about your identification of him?
A: Pardon?
Q: You deny having told that to Mr. Phelan?
A: That I told that to the priest?
Q: Right.
A: Right, sure I probably did tell him that as well as the priest but for the same reason I told you this morning the 1,000 percent against 100 percent -- sure it was the, the man on Louisiana Avenue Parkway, although if justice could be had, absolutely -- absolute justice, if I could be present and smell and talk to him about things you could jointly talk about so that I could come to an understanding of the Defendant. I told that to Phelan.
Q: You say you told the priest you wanted to resolve doubts about your identification of Shaw?
A: I never told him that, I told him I would like to be out of it, I would like to get my life back in order, business and my job, I had to get that back in order.
Q: Now you are denying you told Phelan that you told the priest you wanted to resolve doubts about your identification?
A: Wanted to resolve doubts?
Q: That is right.
A: Again I probably said that but in relation to what I just told you about 1,000 percent versus 100 percent and I used that 100 percent to -- 1,000 percent versus 100 percent to many people I talked to.
Q: Then you are not denying you told the priest you had doubts about your identification?
A: Doubts is a negative and positive is -- I'd rather be more sure than just sure if that makes sense.
Q: Not much, no.
THE COURT: Don't pursue the area.
BY MR. DYMOND:
Q: Is it not a fact that it was shortly after this conversation with Mr. Phelan that a
tentative appointment was set up where you were to meet with Mr. Shaw outside the
presence of attorneys?
MR. ALCOCK: Object, Your Honor, as repetitious.
MR. DYMOND: If the Court please there is another question following.
THE COURT: Read this question back.
THE REPORTER: Question: "Is it not a fact that it was shortly after this conversation with Mr. Phelan that a tentative appointment was set up where you were to meet with Mr. Shaw outside the presence of attorneys?"
MR. ALCOCK: That was gone into at length this morning.
MR. DYMOND: If the Court please, I intend to tie it up and show the relevancy.
THE COURT: Is that statement correct or not? Is that correct?
THE WITNESS: You're asking me if an appointment was set up?
BY MR. DYMOND:
Q: A tentative appointment set up.
A: Not to my knowledge, it was definitely set up.
Q: It was set up?
A: That is the way Phelan expressed it to me, it was definitely set up for somewhere on the Mississippi Gulf Coast.
Q: At whose request?
A: That again I made no specific request but it was the kind of thing for this 100 percent versus a hundred to eliminate all barriers between myself and the Defendant, and all of a sudden Phelan comes up the next day, or a couple of days later and said "It has been set up for that night or tomorrow," and I said "Don't take me serious, it's not possible and it would put me in, it would be impossible because Garrison's office knew exactly well that Phelan was talking to me about it and they were tape recording the conversations.
Q: How did they get to tape record the conversations?
A: What?
Q: How did Garrison's representative get tape recordings of these conversations?
A: I told them he had called me and had said he will check in and they said let us know when he does come to the house because we want to find out how far he will go and they would set up bugging devices in the house.
Q: You had bugging devices on your phone?
A: No, they set up the tape recorder in the hall closet and spike mikes and --
Q: And every time Phelan called you you turned it on, this bugging device?
A: And every time he would come over also.
Q: And you bugged the conversations when he took you to dinner or when you were shooting pool?
A: Most of the conversations we had were in the house, any lengthy conversations, although we did go down to the poolroom and Fitzgerald's Restaurant.
Q: All these conversations in the house with Phelan were bugged?
A: They were taped.
MR. DYMOND: If the Court please at this time we would like to move for the production of the tapes of these telephone conversations.
MR. ALCOCK: For what purposes, Your Honor?
MR. DYMOND: I think we can find out precisely what went on these conversations.
MR. ALCOCK: It seems to me we are dabbling in a lot of hearsay.
MR. DYMOND: I waive our objection to any hearsay.
THE COURT: That is going to be a very peculiar situation.
MR. ALCOCK: Your Honor --
THE COURT: You waive when you wish to waive and when you don't wish to you don't waive.
MR. DYMOND: If the Court please, we don't know what is in those recordings but we will take our chances.
THE COURT: What is the State's position?
MR. ALCOCK: The State just doesn't see a legal purpose for the introduction of these tapes and no real reason to offer them to the Court. Frankly, I haven't heard the tapes but it seems to me we are going into a lot of hearsay. If Mr. Phelan wants to testify, Mr. Dymond stated he will be here and will testify.
MR. DYMOND: Mr. Phelan's testimony is hearsay?
MR. ALCOCK: The best evidence is for Mr. Russo to give his half and Mr. Phelan his half and then the Court is then given the full contents of the conversation.
THE COURT: It could be fraught with hearsay.
MR. DYMOND: My objection is merely I think the Jury would like to hear precisely what went on.
THE COURT: Let me read Article 493 of the Code of Civil Procedure. It is under evidence, 493, "Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, first he must be asked whether he has made such a statement and his attention must be called to the time, place, and circumstances and to the person to whom the alleged statement was made in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible." You are going far afield from this article because you are asking me to force the State to present to you exhibits that you don't know at this moment what they contain, furnish you with ammunition to show that Mr. Russo is making a contradictory statement today from what he told Mr. Phelan. In other words you are on a hunting or fishing expedition hoping that something will develop aside from the notes you have after speaking with this witness Mr. Phelan. Apparently he told you his side of the conversation and you have used part of it to impeach the credibility of the witness by proving he made contradictory statements and Mr. Alcock stated that Mr. Russo can give his side and Mr. Phelan can give his side. If on the other hand you have written before you certain ideas or thoughts or exact words Mr. Russo said to Mr. Phelan you can use them now but I'm not going to grant your request that you can go on a hunting expedition. I sustain the objection.
MR. DYMOND: To which ruling we respectfully object and reserve a Bill of Exception making the motion by the Defense, the State's objection to it and the Court's ruling and all the testimony up to this time parts of the bill.
BY MR. DYMOND:
Q: Is it not a fact that when you decided not to go through with this scheduled meeting that you told Mr. Phelan you didn't want to go through with it because news might leak
through to Garrison?
A: Garrison knew exactly that it was being set up.
Q: I'm asking you whether you told Mr. Phelan that was your reason for not going through with it.
A: That may have been part of it.
Q: Did you tell him that?
A: I am not sure that is exactly the reason I gave, no.
Q: To your knowledge did Mr. Phelan know that his conversations were being tapped or taped?
A: No.
Q: How about phone calls?
A: No.
Q: Calling your attention now, Mr. Russo, to the particular evening you had dinner at Fitzgerald's, and to further refresh your memory, Steve Derby went to dinner with you at Fitzgerald's?
A: Yes, sir, right.
Q: Later on in the evening after dinner do you deny you made this statement to Mr. Phelan: "I lied to you about why I didn't want to meet with Shaw. I was afraid if I talked to him I would know he wasn't the man. What could I do then? I could go on the run to Mexico or California and become a beatnik but I couldn't run from myself"?
A: I deny that.
Q: You deny that?
A: Yes.
Q: You deny having said that?
A: Right.
Q: The incident which I am about to relate occurred towards the end of the frequent visits made to you by Mr. Phelan. Is it not a fact that you and he had a conversation about your testimony concerning Mr. Shaw's trip to the West Coast?
A: That we, that Phelan and I had a conversation about his trip to the West Coast?
Q: Yes, about Mr. Shaw's trip.
A: Phelan argued with me to some extent.
Q: He argued with you?
A: Yes.
Q: Do you deny that in answer to his argument you said that you had picked up a lot of information from Garrison's people just from the way they asked questions?
A: That I picked up information from Garrison's people?
Q: That is correct.
A: I don't think that would be an accurate description of what was said.
Q: You are denying having said that?
A: Correct and I deny -- what he meant, it could have been something similar to that.
Q: Just what did you say?
A: Phelan always prefaced things with this statement that District Attorney Jim Garrison, that the District Attorney had a peculiar habit of after using a person extensively that he would turn on that person and he said that once Shaw gets found innocent, once he ever gets to trial and Shaw is acquitted by the Jury there, then Garrison will turn on you and ride you and file charges so that he could get off the hook and frequently he prefaced his statements with that and if you'll get down to this particular time --
Q: I have picked up a lot of information from Garrison's people just from the way they asked questions.
A: We talked quite a bit, well, at different times and I don't know if this was after Fitzgerald's --
Q: After leaving Fitzgerald's.
A: We talked several times and quite frequently and about how much did I tell Sciambra and how much initially and how much later on and I told him essentially the things I told you, or told you that I had told him, and I told him some of the things were not hard to pick up or hard to follow and I don't know if I worded that correctly or not.
Q: Do you deny that very shortly after that you made this statement to Jim Phelan, this is on the same occasion, same business, "I am a pretty sensitive guy and besides when they got through asking me questions I asked them a lot of questions like "Why is this man important" and so on and I also read every scrap the papers printed about the case before the Shaw hearing"?
A: Some of that is accurate and some not.
Q: What isn't?
A: I asked a lot of questions after the initial questioning and reading the papers. A lot of, most of the people I associate with now know I don't read the papers mostly concerning the trial.
Q: I am referring now to the last visit made by Mr. Phelan.
A: Somehow or another you seem to have skipped about three at the house. You haven't covered the house yet.
Q: The last one on May 28, 1967, do you deny you told Mr. Phelan these words: "I do not know the difference between reality and fantasy and I have told my roommate Steve about it and brooded about it"?
A: That is accurate with some explanation.
Q: First of all, did you tell Phelan you didn't know the difference between fantasy and reality?
A: You are taking that out of context.
Q: Go ahead.
A: And this, this is at the time that DSU's Rick Townley was beginning to come around and other newsmen always trying to split hairs and Jim Phelan and a few others were telling me about how Garrison was going to get me when Shaw was found innocent. I told him that it was hard to distinguish fact and fantasy and I went on a little further and I told him that with this -- from that initial barrage of newsmen, that it was hard to distinguish fact and fantasy and I went on a little further and told him it would probably help me out if I could get away from all of this, get away from it all for a a couple of weeks and relax and stay away from the newspapers and again he pulled that out of context.
Q: Mr. Russo, if you wanted to stay away from reporters, why did you even suggest to Phelan that he come by?
A: The District Attorney's Office was interested in how much and how far he would go.
Q: You were just acting as an agent for the District Attorney's Office collecting information on Phelan?
A: Initially Phelan had come up to Baton Rouge and at that time they weren't interested in how far he would go but after that I met Phelan and I didn't tell him not to come down, he seemed reasonable enough and I thought he was responsible.
Q: You actually told him to come down?
A: I told, I think it was Matt Herron, you have to ask him, if he saw him to tell him to call me.
Q: It was your testimony that because you were being set upon by reporters that you didn't know the difference between fantasy and reality and still you were able to tell him to call you?
A: It is sometimes heard when persons are on you to split hairs and everybody was saying I was lying and that it was Guy Banister or James Lewallen at Dave Ferrie's and that didn't you say this or that and it was a constant barrage and they told me not to talk to anybody but that Phelan was okayed on the 20th or 21st and it was all right to talk to him and after that, after he called me when I was in New Orleans and said he was coming over I called them and they said to stall him a little bit and we are going to go to your place and we will tape the conversation.
Q: Were you stalling him a little bit?
A: I was stalling him the first day.
Q: Did you further tell Phelan on this same occasion, "Everything you have commented on about my testimony has been bouncing inside my head and I am much more critical of myself than you are"?
A: That was a leading statement I told them, yes, sir.
Q: What was?
A: If that, every day that he was over the night before someone from the District Attorney's Office would come over and pick up the tape and that statement was to make him think he was starting to get somewhere in breaking me down and my testimony and to get at Garrison and that was supposed to be when it was done under sodium pentothal or hypnosis and that was the statement that some makes sense and some doesn't.
Q: It is your testimony that you were just baiting Phelan along?
A: Not baiting, no. They were interested in how far he'd go and I was interested in that too.
Q: Did you also tell him at that time that if you changed your story on the positive identification of Shaw, or even eased up on it, that Garrison would clobber you?
A: He said this, I want to preface just a little bit of that --
Q: Just answer yes or no and then you can explain.
A: Not exactly, no.
Q: All right, you can explain.
A: He said this, if you will, first of all he tried to ask me and would say I understand it is possible you have been led under drugs and hypnosis and he showed me the papers of big people, certain doctors who would testify for the Defense against the State's case, and those names were just halfway scratched out and he said they were highly reputable and educated people and so on and he played it that way -- that didn't throw me at all and then he changed his tactics and said if you were to say it was possible, one step removed, if you were to say it is possible then you come to me in New York, talk to a lawyer, just talk to a lawyer and I will cover your expenses coming to New York and then of course we would have to deny it from there. I said if I did, if I did do anything like that Garrison would clobber me over the head. That way, yes.
Q: You didn't say it the way I read it to you, right?
A: No.
... At the hour of 2:45 o'clock p.m. the Court recessed until 3:10 o'clock p.m. ...