CRIMINAL DISTRICT COURT
PARISH OF ORLEANS
STATE OF LOUISIANA
STATE OF LOUISIANA vs. CLAY L. SHAW
198-059
1426 (30)
SECTION "C"
PROCEEDINGS IN OPEN COURT
Morning, February 12, 1969
Paul Williams, Reporter
(See page 38, typed instructions on blue sheet - document to be obtained and verified.)
B E F O R E: THE HONORABLE EDWARD A. HAGGERTY, JR., JUDGE, SECTION "C"
MR. WILLIAM WEGMANN: Are we going to argue this in the presence of the Jury, or what? We are not going to argue this in the presence of the Jury?
THE COURT: Tell them to stay upstairs. I notice in the Clerk's records they did not have a copy of the transcript, they searched for it yesterday and this morning, no copy of it in the record itself. The offer, the offer has been made, as I understand it, by the State to which the Defense has opposed. I will listen to the opposition and I will listen to you, Mr. Alcock.
MR. WILLIAM WEGMANN: We gave the Court last night the Law Review article which is the basis upon which the State believe it is permissible under the Esposito case, and as the Court observed is a New York City case. We rely on the case of Lindsey vs. The United States of America which is cited in 237 F. 2d 893, it is an opinion out of the Ninth Circuit Court of Appeals, May 7, 1956.
In this particular case, there are very pertinent observations with relevance to the use of sodium-pentothal and with relation to the admissibility of the results of the sodium pentothal tests into evidence, and in this particular case the Court of Appeals reversed the trial judge who had admitted the results into evidence.
Now, at the very outset, and I won't be long, but at the outset I think we ought to point out what the State is trying to do by putting into evidence the testimony of Dr. Chetta which is some seventy-five or eighty pages in all, is to put into evidence, in the record, indirectly what this case definitely says it cannot do and for which there is no authority in law.
What the State in effect attempting to do is to rehabilitate Perry Russo, this is the sole purpose that I can see upon which they can even state that Dr. Chetta's testimony is admissible, and what Dr. Chetta's testimony consists of is a series of hypothetical questions asking whether if certain facts existed, whether that individual was sane, and it also goes into the fact that he had administered sodium pentothal to Russo and that he had been present at the Russo hypnotic session with Dr. Fatter, so the only conclusion I can draw is they are trying to show the man is not insane and he is sane.
Now, without reading the whole case to the Court, I would like to read just sections which I think set forth the situation which existed in the case. I quote, "Here the Government's witness was subjected to psychiatric examination for the avowed purpose of determining whether the story originally told the authorities was the truth. Obvious motive existed then to repeat that story. So if the original story were indeed a fabrication, it would be unreasonable to hold that motive did not exist to fabricate during the test insofar as will could assert itself."
It goes on to say, "In order to accept the Government's view, we must be able to say affirmatively that the sodium pentothal interview is a test of truthfulness that is not only trustworthy, but reliably so in all cases."
It goes on, "Although Narco analysis in in general, and the sodium pentothal interview in particular, may be a useful tool in the psychiatric examination of an individual, the Courts have not generally recognized the trustworthiness and reliability of such tests as being sufficiently well established to accord the results the status of competent evidence."
Then it goes on to say that, "The expected effect of the drug is to dispel inhibitions so the subject will talk freely, but it seems scientific tests reveal that people thus prompted to speak freely do not always tell the truth."
They cite a series of medical journals in support of this opinion that people who undergo this test do not always tell the truth.
It then states rather extensively from a Yale Medical School article which appeared in the Yale Law Review, and it says, "In summary, experimental and clinical findings indicate that only individuals who have conscious and unconscious reasons for doing so are inclined to confess and yield to interrogation under drug influence. On the other hand, some are able to withhold information and some, especially character neurotics, are able to lie. Others are so suggestible they will describe, in response to suggestive questioning, behavior which never in fact occurred."
Now, this is one of our objections, every time that we have asked to review anything the State has said as they have, for instance, in the case of the VIP book, they want their agent present, and this is something they insist on, and our point is that they have rehabilitated the witness when nobody from the Defense was present, despite the fact the Defendant at this time had been arrested, the Defendant was arrested March 1, the tests took place after March 1, and they knew who Clay Shaw was, the Defense was not given an opportunity to be present at the rehabilitation tests.
The only one who submitted questions, the only one who did the suggesting to these people were representatives of the District Attorney's office, and I think it is significant to this Court that the District Attorney's office saw fit within a week after they first met this witness to attempt to rehabilitate him.
In other words, they were rehabilitating him before they even put him on the witness stand, and it goes on to say, "but drugs are not truth sera, they lessen inhibitions to verbalization and stimulate un- repressed expression not only of fact but of fancy and suggestion as well. Thus, the material produced is not truth in the sense that it conforms to empirical fact."
They cite various Law Review articles again.
Then it cites in Article -- in the 46th J. Crim. L., page 259, it says, "The intravenous injection of a drug by a physician in a hospital may appear more scientific than the drinking of large amounts of bourbon in a tavern, but the end result displayed in the subject's speech may be no more reliable. It goes on to say, "Hence it was error to admit the recording of the sodium pentothal interview, even as a prior consistent statement for the limited purpose of rehabilitating the impeached witness."
"Authorities who recommended use of the sodium pentothal interview as an auxiliary procedure to full psychiatric examination, nevertheless caution that a transcript of the interview should definitely not be admissible in evidence, because of the difficulty that a lay jury would have in properly evaluating this evidence." This is the problem that we have there.
Now, one of the things that is continually before us in the preliminary hearing, and once again the Court has not had the benefit of reading the transcript, but one of the things before us in the preliminary hearing was the three-judge court telling us all the time "We are three judges who are hearing this," and we argued that they were making a record that might eventually be used before a Jury. The took the opinion they were judges and they were able to make the distinction, and the Court sitting here day in and day out is much more qualified to make a hairline decision or distinction between certain facts and fantasies than is the lay jury that we have in this case.
THE COURT: In my opinion, the only exception for hearsay is in a motion to suppress. That is the Agular case out of the Supreme Court. I do not believe the rules of hearsay are waived in a preliminary hearing.
MR. WEGMANN: I believe that is true, while at one time when you read the preliminary hearing, at one stage it appears that they sustained us on this motion, if you read it throughout you will find that they did not. Judge Braniff, during Dr. Chetta's testimony the question of hearsay came up, Dr. Chetta says what Perry Russo told him on occasion, and this is what we objected to in the testimony.
As I say, I see no other argument, and I would like a chance to reply to the State. I see no other argument that they have but that they intend to prove that Dr. Chetta said that he found Mr. Russo sane at the time of his examination.
I lay the additional predicate that the question now before the Court is not whether Russo was sane in March of 1967, but the question before the Court is now whether he is sane on February 11, 1969, when he is testifying, a period of more than two years later. Certainly the Court on any kind of a psychiatric hearing would not accept a psychiatric record of two years past to determine a man's sanity at the present time. They are not trying to rehabilitate Russo in 1967, they are trying to rehabilitate him today in 1969.
THE COURT: I will be glad to hear from the State.