MR. ALCOCK: Your Honor, in connection with the testimony of this witness, the State would like to offer and file and introduce into evidence the following exhibits --
MR. DYMOND: I don't know these by number, Mr. Alcock.
MR. ALCOCK: I will bring them up.
MR. DYMOND: All right.
MR. ALCOCK: I may not have them in exact order. "S-23" which purports to be a picture of --
THE COURT: What is the number of it?
MR. ALCOCK: "S-23," which purports to be a picture of the microscope identified by the witness on the stand.
THE COURT: Let's take them one at a time. Is there any objection?
MR. DYMOND: Yes, Your Honor. We object to the pictures of the medical equipment, we make the same objection of lack of relevancy.
THE COURT: I will overrule the objection, so you can offer "S-21," "S-22," and "S-23" over the objection. They will be permitted to be offered.
MR. DYMOND: Very well. We would like to reserve a bill of exception of their introduction, making the photographs, the objection, the reason for the objection, the Court's ruling, and the entire record up until now part of the bill, also making the exhibits part of it.
THE COURT: Are you taking three separate bills?
MR. DYMOND: I think we can make that one bill.
THE COURT: All right. One bill.
MR. ALCOCK: "S-19" purports to be a picture of Lee Harvey Oswald with certain altera- tions to the face.
MR. DYMOND: No objection.
THE COURT: Let it be received.
MR. ALCOCK: "S-15-Trial" purports to be a picture of the dining room of the apartment of David Ferrie.
MR. DYMOND: No objection.
THE COURT: Let it be received.
MR. ALCOCK: "S-13-Trial" which purports to be a picture of the living room of the apartment of David Ferrie.
MR. DYMOND: No objection.
THE COURT: Let it be received.
MR. ALCOCK: "S-11," which purports to be a picture of the outside front of the apartment of David Ferrie.
MR. DYMOND: No objection.
THE COURT: Let it be received.
MR. ALCOCK: "S-12-Trial," which purports to be a picture of the hallway in David Ferrie's apartment.
MR. DYMOND: No objection.
THE COURT: Let it be received.
MR. ALCOCK: "S-24-Trial," which purports to be a picture of the hallway of David Ferrie's apartment.
MR. DYMOND: No objection.
THE COURT: Let it be received.
MR. ALCOCK: "S-16-Trial," which purports to be a picture of David Ferrie.
MR. DYMOND: No objection.
THE COURT: let it be received.
MR. ALCOCK: And "S-17-Trial," which purports to be a picture of two detectives leading Lee Harvey Oswald out of the jail in Dallas, Texas.
MR. DYMOND: No objection.
THE COURT: Let it be received.
MR. ALCOCK: The State would like also to offer, file and introduce into evidence, having marked same for purposes of identification, "S-18," which purports to be a Mannlicker-Carcano rifle with a telescopic sight.
MR. DYMOND: To which we object, Your Honor. This rifle does not purport to have any direct connection with the case. It is our contention that it is completely irrelevant to the issues in the case.
THE COURT: Overrule the objection.
MR. DYMOND: To which ruling Counsel objects and reserves a bill of exception, making the objection, the Court's ruling together with the reasons therefor, and the Exhibit S-18, together with the entire record up until this point, part of the record.
THE COURT: I understand, Mr. Alcock, that the exhibit is being offered as being similar to?
MR. ALCOCK: Yes, yes.
THE COURT: All right. You didn't say that. It is similar to but not the original?
MR. ALCOCK: It is a Mannlicher-Carcano rifle but it is similar.
THE COURT: Yes, similar.
MR. DYMOND: If Your Honor please, I would like to point out that there is nothing in the record to identify this as a Mannlicher-Carcano rifle.
MR. ALCOCK: All right. Just put it as a rifle Your Honor, I think Mr. Russo is excused, isn't he?
THE COURT: I am waiting for you to tell me. You have no further questions?
MR. ALCOCK: No, I have no further questions.
(Witness excused.)
THE COURT: Mr. Alcock, I am checking on your Exhibit S-20. What exhibit is that, Mr. Sullivan?
THE CLERK: It went in on S- and D-20.
MR. ALCOCK: Your Honor, in connection with the testimony of the witness Perry Russo, and in consideration of the fact that Dr. Chetta is now deceased, the State would at this time ask permission of the Court to have Mr. Alvin Oser, Assistant District Attor- ney, the man who examined Dr. Chetta in the preliminary hearing, read into the record his testimony then given.
MR. DYMOND: Your Honor, we object.
THE COURT: State your reasons why.
MR. DYMOND: Well, I think the Jury should be removed for this objection, if the Court please.
THE COURT: All right. Take the Jury in my office.
(Whereupon, the Jury was excused from the courtroom.)
THE COURT: I am faced with Article 295. I guess you are aware of it.
MR. DYMOND: I am aware of it.
THE COURT: I will be glad to hear your objection.
MR. DYMOND: Your Honor, this objection is not based upon Article 295, which deals with preliminary hearings, at all. We realize that ordinarily the testimony of a deceased witness which has been previously taken at a preliminary hearing, is admissible on the trial of the case, but we object to this on the basic admissibility of this testimony because of its very nature, that is, were the same testimony to be offered from the lips of Dr. Chetta, we do not feel that it would be admissible here. This testimony purports to be in large part statements of the witness Perry Raymond Russo while he was under the influence of the drug sodium pentothal which had been administered by Dr. Chetta, and that actually the Court would have to read the entire testimony of Dr. Chetta from the transcript of this preliminary hearing in order to properly pass upon this objection. We objected to this testimony at the preliminary hearing, but, of course, being a preliminary hearing, the testimony was permitted, but this is a trial before a Jury here now.
MR. OSER: Your Honor, will the Court hear the State?
THE COURT: The Court would like to hear the State, certainly.
MR. OSER: Your Honor, the State's position in the matter is that what is in the preliminary hearings -- Mr. Dymond has opened the door on the question of sanity or insanity of the witness Perry Russo, so the State would like to quote the case of People vs. Esposito, 287 N.Y. 189, 39 N.E. 2, 1925, decided in 1942, and in this particular case the testimony was admitted by a psychiatrist based on the reactions and information received from the defendant while under the influence of drugs and sodium pentothal, which is truth serum, and in this particular case the doctor used this as one of the aids and means by which he tested and determined whether or not the defendant was sane or insane, and this is the reason that the testimony of Dr. Chetta is being offered. This is further covered, if Your Honor please, in the Temple Law Review, Volume 35, Page 401.
THE COURT: Can I get a copy of the Temple Law Review article?
MR. OSER: I believe Judge Bagert still has a copy.
MR. WILLIAM WEGMANN: I have a copy of it and I have no objection to submitting it to the Court, because I think --
THE COURT: A copy of what?
MR. WEGMANN: Of the Law Review article he is talking about -- because I think it proves exactly the opposite.
THE COURT: I will hear Mr. Dymond.
MR. DYMOND: I don't think, if the Court please, that the Esposito case is applicable here at all. In the first place, Counsel is contending by asking a witness whether he has had psychiatric treatment, that I have opened the door as to his sanity. You will probably get resentment from a lot of people in this courtroom if you questioned the sanity of each one who has consulted with a psychiatrist.
THE COURT: Well, to the layman, whether you believe it or not, to the layman a person who goes to a psychiatrist, they do think something is wrong with them; whether he is nuts or not, that is something else.
MR. DYMOND: Your Honor, further the sodium pentothal --
THE COURT: I know what sodium pentothal is.
MR. DYMOND: -- test has nothing whatsoever to do with sanity or insanity. This is testimony concerning material which was obtained from this witness in the form of testimony while under the influence of this drug. I know of no case in the history of our jurisprudence where such testimony has been admitted in evidence. We don't know what effect the administration of this drug has on a witness, the Jury doesn't, the Court doesn't, and I don't think that you will find a case in the annals of our country where a court has said yes, put a man under sodium pentothal, or a drug, and get him to talk and then that testimony is admissible in evidence.
THE COURT: Let me read to you, irrespective of your saying you are not alluding to Article 295, it seems like that article covers it very nicely. I am going to read.
MR. DYMOND; We have no argument with 295.
THE COURT: I am going to read it for the record. Take this down.
"295. Admission of Transcripts and Other Proceedings. The transcript of the testimony of a defendant who has testified at a preliminary examination is admissible against him upon the trial of his case, or, if relevant, in any subsequent judicial proceedings.
"The transcript of the testimony of any other witness who testified at the preliminary examination is admissible for any purpose in any subsequent proceedings in the case on behalf of either party. If the Court finds that the witness is dead, too ill to testify, absent from the state, or cannot be found, and that the absence of the witness was not procurred by the party offering the testimony --"
MR. DYMOND: Your Honor --
THE COURT: Let me finish reading.
"-- the transcript of testimony given by a person at a preliminary examination may be used by any party in a subsequent judicial proceedings for the purpose of impeaching or corroborating the testimony of such person as a witness."
(Reporter's Note: The above quotation transcribed from the notes as they lie; the reader is referred to the source.)
THE COURT: Now, you have used the transcript of that hearing in attacking or impeaching the testimony of Perry Russo. You were also present at this preliminary examination and hearing, and you offered whatever objections you had to Dr. Chetta's testimony -- I am sure you must have.
MR. DYMOND: Your Honor, in answer to that I would like to say this: Yes, we did offer objections and we were met with the answer that "This is a preliminary hearing."
THE COURT: The same rules of evidence apply.
MR. DYMOND: I beg your pardon.
MR. WILLIAM WEGMANN: No, they were not applied.
MR. DYMOND: They were not applied. If Your Honor will examine this transcript, you will see that upon numerous occasions we objected to hearsay evidence on this preliminary hearing. We were met with argument by the State that this is a preliminary hearing that hearsay evidence can be introduced at a preliminary hearing, and the three-judge panel so ruled. If Your Honor will examine this transcript, it will bear me out. And we have another situation here where evidence was admitted on the preliminary hearing because it was a preliminary hearing. We are confronted here with exactly the situation that we feared we would be confronted with.
THE COURT: Well, was the argument advanced to the three-judge court of the possibili- ty of that testimony being read at subsequent trial?
MR. DYMOND: Absolutely, absolutely it was, and the record reflects it.
THE COURT: In its entirety?
MR. WILLIAM WEGMANN: And you will find a very detailed argument at the very beginning of Russo's testimony, as to what was going to be done.
THE COURT: I am ready to rule. I will overrule your objection, I will permit the reading of this under Article 295.
MR. DYMOND: Your Honor, may we ask that before you make such a ruling as this --
THE COURT: I have already made it.
MR. DYMOND: I will ask you to retract it then and permit us to research this point and furnish you with authorities tomorrow morning. I mean this ruling is absolutely contrary to anything that was anticipated in this preliminary hearing.
THE COURT: From a purely legal situation, you made the objection anticipating that the transcript could be read at a subsequent judicial proceeding, and you tell me the reason it was permitted is because they agreed it was hearsay but although it was hearsay that it was permitted because it was a preliminary examination?
MR. DYMOND: That is correct, and we said, "Yes, but suppose a witness dies and they try to introduce this as evidence on trial of the case?" They said, "Oh, no, you will be able to object on whatever legal ground you have."
THE COURT: Is that in the transcript?
MR. DYMOND: That is in the transcript, yes.
MR. WILLIAM WEGMANN: I think you have got to read the transcript.
THE COURT: I will have to read it.
MR. DYMOND: There is no other way out.
THE COURT. Can you pinpoint the section? I don't have a transcript.
MR. DYMOND: We can find that section without any trouble, yes.
THE COURT: Does the State have an extra copy, or is the transcript in the Clerk's Office?
MR. ALCOCK: Your Honor, I would like to point out to the Court perhaps my appreciation of what transpired at the preliminary hearing is different from Defense Counsel's -- perhaps it is -- but I remember I had long and strenuously argued the point that hearsay was admissible in a preliminary hearing because there we were only deciding whether or not there was probably cause --
MR. DYMOND: That is correct.
MR. ALCOCK: -- and I analogized this to be probable cause on a search warrant and a motion to suppress. However, I was overruled, hearsay was excluded. The only conversations that were admitted was after the Court deemed that we had prima-faciely proved a conspiracy, and I can point that out to the Court in the transcript, because I know I argued that point long and loud and lost it.
MR. DYMOND: Your Honor, I don't think there is any point in Mr. Alcock and me standing here arguing what is in the transcript when we can look at it and see what is in it.
THE COURT: I will get a copy somewhere, perhaps from the Clerk's Office. I would like for you, if you can, to cite me the particular pages.
MR. DYMOND: Given a few minutes I am sure we can.
MR. WILLIAM WEGMANN: I believe if you will read Dr. Chetta's testimony you will find the citation of the Court's authorities and everything else in there.
THE COURT: What is this evidence --
MR. WEGMANN: I have a copy of the Law Review article which is underlined.
MR. OSER: My questions to Dr. Chetta were based on hypothetical questions and not what Russo told Dr. Chetta. There is no testimony in there by Dr. Chetta as to what Russo told him. His answers were to my hypothetical questions to the expert, Dr. Chetta, at the time, not what Mr. Dymond said.
THE COURT: I understood you wanted to read the entire testimony of Dr. Chetta to the Jury?
MR. DYMOND: Correct.
THE COURT: I understand the State wishes to read the entire --
MR. OSER: But all my questions were propounded on the basis of hypothetical questions.
THE COURT: I will tell you what I think. The suggestion by Mr. Dymond probably is a solution to the problem we have now, I would think. I will take the testimony and also this exhibit you have. Do you have anything? You submitted me two citations, Mr. Oser. Do you have a brief on them or a memorandum on them?
MR. OSER: The Esposito case, Your Honor, is covered in the Temple Law Quarterly.
THE COURT: Which is what you have?
MR. WILLIAM WEGMANN: If we are going to argue it tomorrow morning, I would like to have a copy of it so we can review it.
MR. DYMOND: Do you want to make a copy for the Court?
THE COURT: We will make a couple of copies. Have a couple of copies made. We will get it in the next ten minutes. Do you have any other witnesses you want to put on now?
MR. ALCOCK: No, Your Honor.
THE COURT: All right. I will recess until tomorrow morning, and I will read the transcript plus the authorities and when we get here tomorrow morning, I will permit both sides to be heard in argument on it. Now, we are only contending about the testimony of Dr. Chetta?
MR. WILLIAM WEGMANN: Well, the argument about the hearsay that Mr. Alcock points out was originally made -- if you wait a second I can tell you where, because there is a long colloquy that went on. I believe, Judge, if you will read the very beginning of Perry Raymond Russo's testimony, which begins at Page 20, you will find the colloquy between Alcock --
MR. ALCOCK: You will find the answer on Page 41.
MR. WILLIAM WEGMANN: You will find eventually what was done, but you will find what took place in the comments of the three-judge court.
THE COURT: To Page 41?
MR. WEGMANN: I don't say it ends there, Judge. I am afraid it is a long night of reading.
THE COURT: Where is Dr. Chetta's testimony?
MR. DYMOND: It is indexed.
THE COURT: All right. Do you have more than one copy of it, Mr. Oser?
MR. OSER: No, sir.
THE COURT: It would be in Judge Bagert's Court. Could you let me have your copy overnight? I will let you have it back tomorrow morning.
MR. OSER: Yes, sir (handing document to the Court).
THE COURT: All right. Bring the Jury down. I am going to have to tell them we are adjourning for the night.
(Whereupon, the Jury returned to the courtroom.)
THE COURT: Gentlemen of the Jury, a legal point has come up that has to be researched by myself tonight, I have to refer to the transcript that was made of a preliminary hearing in the matter. Rather than keep you gentlemen up there, it is 5:00 o'clock now and we are sending for the agents to take you back to the motel. Do not discuss the case among yourselves or with any other person.
Mr. Shaw, you will be released on your same bond, and Court will be adjourned until tomorrow morning at 9:00 o'clock.
. . . . Thereupon, at 5:00 o'clock, p.m., the proceedings herein were adjourned to Wednesday, February 12, 1969 at 9:00 o'clock a.m. . . . .