THE COURT: Gentlemen, will you two step up here a moment.
(Messrs. Alcock and Dymond stepped forward for a bench conference off the record.)
BY MR. DYMOND:
Q: Mr. Russo, did you get a copy of the transcript of that hypnotic session?
A: At one time I had a copy, yes, sir.
Q: By whom was it given to you?
A: I think it was the District Attorney's Office, although I have seen some of the newsmen have a copy, or part of it, anyway.
Q: Do you still have that copy?
A: Oh, no, I don't think so; I have some papers but I don't think it was that.
Q: Now, during this hypnotic session were you in such a deep trance as to be unable at this time to tell us whether these are the questions propounded and the answers given during that session?
A: Well, the transcript that I saw, you see -- I am put in a peculiar position -- from the memory of what the questions were and the answers I gave, no, but having seen a transcript I will probably remember some of the stuff.
Q: From the copy which you say was given to you by a member of the District Attorney's Office, that is, from having read that copy, would you be able to identify this copy which I have exhibited to you, as a proper copy?
A: As a proper copy, it looks all right. I couldn't word for word, no. I mean it is a proper copy, looks all right.
MR. DYMOND: If the Court please, in connection with the witness's testimony I would like to offer, file and produce in evidence this copy of the transcript of the first hypnotic session.
MR. ALCOCK: Your Honor, to which offer the State objects on the grounds that it is not in any manner, shape or form properly identified at this time. This man testified that he was probably in too deep a trance at the time to recall the questions propounded to him or his answers. This might be introduceable later on, and I can assure Mr. Dymond that Dr. Fatter will be a witness. Perhaps at that time it might be admissible, but not at this time.
MR. DYMOND: If the Court please, we would have no objection to Mr. Alcock examining this document to determine its authenticity.
MR. ALCOCK: Mr. Alcock wasn't present.
MR. DYMOND: Well, you undoubtedly have a copy of the transcript.
MR. ALCOCK: That doesn't make any difference.
THE COURT: Let me say there is no question the primary purpose of the offer, Mr. Dymond, is to show to the witness proof of a contradictory statement made at another time. Now his attention has been called to the time, place and circumstance.
MR. DYMOND: If the Court please, may I point out --
THE COURT: The question is was he compos mentis.
MR. DYMOND: That isn't the purpose of this offer at all, Your Honor, and I would not feel free to state the purpose of it in the presence of the Jury.
THE COURT: The witness stated he was under hypnosis at the time. He cannot state whether he would remember making that statement or not. Isn't that what he stated a moment ago?
MR. DYMOND: That is correct. If the Court please, as I understand it, the Court's ob- jection to the admissibility of this is that it has not been identified as a true copy of the transcript?
THE COURT: Well, I went further than the State went, I went further and said that the man is not in a position to be able to say whether he made those statements or not if he was under hypnosis.
MR. DYMOND: I understand that completely, Your Honor, and, as I say, I can answer the Court's objection but I don't think I should do it in the Jury's presence. However, with respect to the objection that this is not proven to be a true copy, I think that that objection can be answered.
THE COURT: I think so, too.
MR. DYMOND: -- by my furnishing to the State for the State's perusal, and if they are satisfied it is a true copy, there should be no objection on that basis.
THE COURT: We can do it on an easier basis than that. We can have the stenographer from the District Attorney's Office who took it, to certify it correct. That would be one way, but I am interested in the basis --
MR. ALCOCK: Your Honor, perhaps to clarify this we should excuse the Jury and find out why he is trying to introduce it.
MR. DYMOND: I will be happy to do that.
THE COURT: Very well, we will excuse the Jury.
(Whereupon, the Jury retired from the courtroom.)
MR. DYMOND: If the Court please, Your Honor, before --
MR. ALCOCK: Your Honor, before Mr. Dymond begins I would like the Sheriff to stand back there by the door and see if he can hear this, stand with the Jury and see if he can hear this and let us know.
THE COURT: Off the record.
(Discussion off the record.)
THE COURT: You may proceed.
MR. DYMOND: If the Court please, the purpose of our offering this transcript in evidence is not as a prior contradictory statement, our purpose in putting it in evidence is to have it as an exhibit to lay the foundation for further expert testimony. We have exhibited these transcripts to a competent psychiatrist and hypnotist of national repute, and we intend to show by his testimony that the type of suggestive questions put to Russo while under a hypnotic trance, medically would have the effect of completely destroying his credibility as a witness, his value as a witness, and would have the effect of implanting in his mind what the questioner wanted him to testify to and what was suggested to him by the questioning. The only way that we can do that is to get these transcripts in evidence.
THE COURT: I will hear from you, Mr. Alcock.
MR. ALCOCK: Your Honor, the State's position on that would be this: I don't think Dr. Fatter is on trial nor are we attempting to impeach Dr. Fatter. What would that have to do with this particular witness? That is what I don't understand. Why should they get it in while this witness is testifying? If they want to bring this up to Dr. Fatter, fine, let them bring it up to Dr. Fatter -- Dr. Fatter is going to take the witness stand -- but this is no time to present this document to the witness.
MR. DYMOND: If the Court please, as to what purpose and what connection there is between this document and this witness, this document together with the expert testimony which we will furnish will show the source of this witness's testimony, and for that reason I think that if it is very relevant, at a time when this witness is testifying, I don't think it makes a great deal of difference whether it is offered today, tomorrow, or the next day.
MR. ALCOCK: The source of this witness's testimony -- this witness has already testified that essentially what he has told this Jury is what he told Sciambra on February 25, 1967. We are talking about March 1 now.
MR. DYMOND: Of course, Your Honor, we are prepared to sow differently on that.
THE COURT: To bring it to a head, I suggest you mark it "D-12" for identification purposes only, and I will not permit the document to be filed at this time, but you can use it when Dr. Fatter takes the stand and maybe reoffer it so it will be in evidence when you psychiatrist takes the stand.
MR. DYMOND: Mr. Alcock, may I ask whether Dr. Fatter is going to be placed on the stand?
MR. ALCOCK: Yes.
MR. DYMOND: As long as we know Dr. Fatter is going to be placed on the stand, we don't mind waiting, it doesn't matter when it is offered, we want it in evidence.
THE COURT: Mark it "D-12" for identification purposes only, and bring the Jury in.
(Whereupon, the document referred to by the Court was duly marked by the Clerk as "Exhibit D-12' For Identification Only," and the Jury was recalled.)
BY MR. DYMOND:
Q: Now, Mr. Russo, I ask you whether again on March 12, 1967 you were subjected to
hypnosis.
A: I am not sure of the date, but I was subjected again, right, a couple of days later.
Q: Would you say that March 12 would be a likely date or a close date?
A: Well, it was before the preliminary hearings, you know; I am not sure of the date though, no.
Q: Now, where did this hypnotic session take place?
A: Well, I am not sure which one you are referring to. One was in --
Q: The second one.
A: One was in Mr. Ward's office, and I think two were in Dr. Chetta's office.
Q: Now, where did you say the first one was, Mr. Russo?
A: In Dr. Chetta's office.
Q: And where would the second one have been?
A: I am not sure on the chronology of it. I think the second one may have been in Dr. Chetta's office also.
Q: Do you remember who was present during this second session?
A: I am sure Dr. Chetta was, Dr. Fatter, a stenographer; I am not sure which Assistant was there at that time.
Q: Do you know whether or not a transcript was made of that meeting?
A: Well, there was a stenographer there, I am sure that there was.
Q: Were you also given a transcript of the second hypnotic session?
A: Yes.
Q: Do you still have that?
A: I think they were bound together. No, I don't have it. I think they were bound together though, in other words, this is one, this is two (indicating).
Q: I see. Now, were you in such a deep hypnotic trance upon the second occasion that you would be unable to review a transcript of that session and identify it as a true and correct transcript?
A: Yes.
Q: If I were to show you what purports to be a transcript of that session, would you be able to identify it as a result of having reviewed the copy of that transcript which was delivered to you by a representative of the DA's office?
A: I could approximately identify it.
MR. DYMOND: I show you this, Mr. Alcock (exhibiting document to Counsel).
MR. ALCOCK: All right.
MR. DYMOND: We will mark this "D-13."
(Whereupon, the document referred to by Counsel was duly marked for identification as "Exhibit D-13.")
BY MR. DYMOND:
Q: (Exhibiting document to witness) I show you a document which has been marked for
identification "D-13," Mr. Russo, and I ask you to examine it and tell me whether that appears to be a true copy of the transcript of the second hypnotic session.
A: (The witness nodded affirmatively.)
Q: Would you say that appears to be a correct copy, Mr. Russo?
A: Yes, sir.
MR. DYMOND: Your Honor, I will hold off on the actual introduction of this one.
THE COURT: All right.
BY MR. DYMOND:
Q: Now, Mr. Russo, there was a third hypnotic session, was there not?
A: Right.
Q: Now, where did this last one take place?
A: In Charles -- in Mr. Ward's office?
Q: In Mr. Ward's office?
A: Yes, sir.
Q: Who was present then?
A: Dr. Fatter, Mr. Ward was in and out, and just about -- you know, I am sure Sciambra was there, some others, and a stenographer initially.
Q: You say there was a stenographer in the room at that time, too?
A: Well, there was when we began.
Q: Were you furnished with a transcript of that third session?
A: No transcript was ever taken so I was told.
Q: I see.
MR. DYMOND: If the Court please, at this time I would like to ask of the State whether such a transcript was made and whether it will be furnished
MR. ALCOCK: Well, of course, Your Honor, Mr. Dymond knows if we did have a transcript I wouldn't necessarily deny him access to it -- he knows as a matter of law he is not entitled to it -- but, as I recall, there was no transcript made because it was terminated in the very beginning. Perhaps -- although I wasn't there, Mr. Sciambra was, perhaps he could clarify it. I don't think there was a transcript made.
MR. SCIAMBRA: Your Honor, there wasn't a transcript made of that particular session. I don't know the exact details about it, but Dr. Fatter had some problem in getting Perry to undergo hypnosis for some reason.
THE COURT: The main thing, there was not a transcript made?
MR. SCIAMBRA: No, Your Honor, there was no transcript made.
BY MR. DYMOND:
Q: Mr. Russo, have you ever been under psychiatric treatment?
A: Have I ever been under -- yes, sir.
Q: When did that treatment commence?
A: The first year of college, in October.
Q: The first year of college?
A: In October.
Q: What year was that?
A: '59.
Q: '59. And under whose treatment were you?
A: Dr. Max E. Johnson.
Q: Dr. Max E. Johnson?
A: Max, M-a-x.
Q: I see. Does he still practice here in New Orleans?
A: I am sure he does.
Q: And how long did you remain under psychiatric treatment?
A: Twelve to 18 months.
Q: Twelve to 18 months?
A: It was on a consultation basis.
Q: I see. How often would you consult with your psychiatrist?
A: Well, initially on a consultation basis probably about two times a week.
Q: About twice a week?
A: Yes.
Q: Now, after your active consultation period ended with the psychiatrist, is it not a fact that you had telephone consultations with him for quite a lengthy time?
A: Well, not for a lengthy time, only when I had something that I wanted to discuss with him.
Q: And how long did that go on, sir?
A: It was kind of spotty, I mean it was once in '63 and once in '65, I am sure of that.
Q: Do you remember when in '63 that was that you consulted with him?
A: Right after January 31.
Q: After January 31?
A: Right after.
Q: When was it in '65?
A: I am not really sure of that, sir.
Q: Have you consulted with him since 1965 at all?
A: No, I met him on the street, just talked to him.
Q: Have you ever telephoned him?
A: Since '65?
Q: Right.
A: I don't think so, no.
Q: Have you talked to any other psychiatrist since 1965?
A: Only as far as someone up at LSU, just discussing psychiatry. I have always been interested in psychology and psychiatry and psychoanalysis.
Q: But you were not under actual treatment?
A: No. I discussed it for academic reasons.
MR. DYMOND: Would Your Honor bear with us just one moment, please?
(There was a brief pause in the proceedings.)
BY MR. DYMOND:
Q: Mr. Russo, have you ever attempted to commit suicide?
A: Never.
Q: Do you know a man by the name of Mike Fitzpatrick?
A: Mike Fitzpatrick? Yes, sir.
Q: You knew him in 1962, didn't you?
A: Oh, yes, sir.
Q: Do you deny that in 1962 Mike Fitzpatrick came to your house, and when he got there your wrist had been cut and there was about a half inch of blood and a spot on the floor?
A: (Exhibiting wrists) Mr. Dymond, I don't have any scars on my wrist.
Q: Do you deny that?
A: I deny that.
MR. DYMOND: That is all.
MR. ALCOCK: You have no further questions, Mr. Dymond?
MR. DYMOND: No further questions.
THE COURT: Mr. Alcock, before you start, it is about three minutes after 4:00 and I think the news media would like a break before you start on redirect. I don't know whether they would like to have a five-minute break now or wait until 4:30. I think some of them, of course, requested a break a half hour or so ago, so unless somebody puts up a hand to the contrary, we will go along.
(Whereupon, several hands were raised in the courtroom.)
THE COURT: All right. We will take a five-minute recess. Let the Jury remain in the box here.
(Whereupon, a brief recess was taken.)