MR. OSER: It is the State's contention that the jurisprudence on the point is that the use of drugs such as sodium antothal and sodium pentothal cannot be used and introduced into a court of law in order to show the truthfulness of the statement made by a person, or to establish the credibility of the person making the statement; however, the State's contention under the case of People vs. Esposito, Mr. Wegmann referred to, which is cited in 287 New York 389, 39 N.E. 2d, 925, the Court in this particular case allowed the testimony of the psychiatrist which was based on reactions and information received by the psychiatrist while the subject was under sodium anthothal to determine the question of sanity, also covered in the case was the fact that the only purpose that the testimony of the psychiatrist was given in the case was to determine the question of insanity, and not to determine the truthfulness of the statements made by the subject under the influence of the drug.
Furthermore, the State wishes to rely on the case of People vs. Cartier, 35 Pac. 2d, 114, wherein this particular case there was a question of insanity and the testimony of the psychiatrist was allowed regarding his sodium antothal treatment or administration of the drug as a diagnostic aid.
Now, in these particular matters before the Court today, the State is not attempting to introduce the testimony of Dr. Chetta to show the truthfulness of the statements made by the witness under sodium pentothal, nor to establish the credibility of the witness. The State is attempting to use Dr. Chetta's testimony to show that Dr. Chetta made a determination of the question on sanity of the individual Perry Russo and that one of the diagnostic aids used by the doctor was that of sodium pentothal, and based on the jurisprudence, Your Honor, the State feels it should be allowed to introduce this testimony only for that purpose, as it was the only purpose introduced in the preliminary hearing, and this is the State's position.
MR. WEGMANN: The cases cited by Mr. Oser, or the case which was cited in that Law Review article, both of which are State cases, the case that we cite to you is a Federal Court of Appeal case, which we submit has more binding effect upon this Court than would a New York decision or a California decision.
Now, once again, Mr. Oser says exactly what I predicted he would say, it is a question of sanity. Now, we now raise the objection of relevancy as to the relevance of Russo's sanity in 1967 as opposed to today. The State has continuously maintained that this trial is going to go on for several days. Dr. Chetta made his examination based upon an hour, less than an hour's examination of Russo despite the fact that he said one of the true tests of sodium pentothal was to know the patient whom you were treating, and he admitted, and this is a weakness in my humble opinion to Dr. Chetta's, to the validity of Dr. Chetta's testimony, and we questioned him on that face, he knew him only for less than an hour or forty-five minutes, but if they really want to know the sanity of Russo as of today, now is the time to have him psychiatrically examined and have that doctor brought in here and have him subject to cross-examination.
If Dr. Chetta were alive today, the testimony that is contained in this preliminary report, namely the sanity of Russo as of March 1, 1967, would not be admissible at this time because it would not be relevant, whether he was sane or insane when he made that statement. It is not relevant, the condition of Russo in '67 is not relevant on February 12, 1969.
MR. ALCOCK: If I might just be heard on that point. I agree to some extent with Defense Counsel that we are now talking about the Russo testimony in 1969; however, during the course of argument and during the course of presentation in this case, Mr. Dymond announced that he will put a witness on the stand, an expert witness in the area of hypnosis, who will allegedly show that Russo's testimony was the result of suggestions during hypnosis, that sodium pentothal testimony is inadmissible, and the whole question here is that at the time the tests were administered to Perry Russo, that is the critical area and the critical time we are concerned about, and that is the critical time that Dr. Chetta addressed himself at that time.
It is not Perry Russo's testimony today, but it is during the course of these tests which Defense Counsel have announced that they will attack strongly during the course of this trial, so this is the area and the time that we are concerned about, and the fact that Mr. Dymond brought out that Perry Russo had allegedly attempted t commit suicide, he asked him whether or not he had been under psychiatric care, and additionally, if you will recall, at this same time or within this same period Mr. Dymond asked Mr. Russo whether or not he had made a statement whether or not he knew the difference between fact and fantasy, and again these things are critical, and we wish to show by this testimony of Dr. Chetta, who saw him often during that period, the stability of this witness, which would in effect negate the arguments of Defense Counsel that he was unstable and the tests were used merely to buttress him up, which is not the case at all.
MR. WEGMANN: First of all, it would appear to me that what we say in argument before the Court is not evidence before the Jury, what was stated by Mr. Dymond was stated specifically out of the presence of the Jury as it should have been.
THE COURT: You offered two exhibits and they were marked for identification and he has not reoffered them.
MR. WEGMANN: And the State refused to join in the offer, which means they are not in evidence, and if everything that you offered was considered evidence, it would be a wild affair.
THE COURT: It has been marked for identification only.
MR. WEGMANN: Is the Court saying at this time it is going to admit it into evidence?
THE COURT: I don't know if --
MR. WEGMANN: What is offered by the State at this time is premature, the Court may never admit it into evidence. I would like to have a lot of things for the Court to put into evidence, but what is offered and what is admitted is two different things, and once again it gets back to whether or not this Jury is going to know the nicety of the fact that the testimony of Dr. Chetta refers to this man's condition on a specific date in 1967 as opposed to his condition in 1969.
THE COURT: We have no transcript except the transcript of 1967.
MR. WEGMANN: Going back to my argument, and not to be repetitious, if Dr. Chetta were here today, I would make the same objection to Dr. Chetta's testimony that I am now making. Dr. Chetta's examination of 1967 is not admissible at this time. If they want to rehabilitate the witness, they have to rehabilitate him with a 1969 psychiatric examination.
THE COURT: If you say this transcript has no legal effect today, then the criticism of the Defense as to what Dr. Fatter or Dr. Chetta did is not relevant either. That is two years ago.
Mr. WEGMANN: That is not true either, Judge, that is not true at all, because one of the things we were trying to show with Russo which the Court would not let us go into was a prior inconsistent statement made under hypnosis which was different from what he was testifying to, and this is entirely different, a prior inconsistent statement as opposed to a man's psychiatric examination, these are two different things.
MR. ALCOCK: That is contrary, he announced he was not trying to impeach him with his hypnotic testimony, he was trying to show the testimony that he gave in Court was the result of suggestions during hypnosis, and I think I am correct --
THE COURT: On the part of the State, do you intend to oppose the introduction of those documents?
MR. ALCOCK: I announced Dr. Fatter was going to take the witness stand and he would have an opportunity then to cross-examine him relative to the document and put their expert on the stand.
THE COURT: You will not object to those documents being introduced?
MR. ALCOCK: Not at all, but under the proper predicate, not with Perry Russo testifying.
THE COURT: There is a question of much hearsay being in the record. There is no question about it, it did get into the record, and of course that was ruled on by a three-judge court.
MR. DYMOND: Who admitted it was hearsay but admitted it because it was a preliminary hearing.
THE COURT: Well, the ball game has been played already.
MR. WEGMANN: Just so that we understand the legal situation which exists, we challenged the validity of the three-judge court at the time that it was heard. We said there was no authority for it under law for three judges. The rule out here for generations in the whole history of Criminal Court has been one judge runs his section, and we admit it is all one big court, but unheard of for two, three, or four judges to get together and say "We are hearing this case;" and we challenged the validity of it, we still do. This Court on more than one occasion has stated this preliminary hearing did not form part of this record and the Court has refused us permission to attach the bills of exception that we have taken at one time or another because it did not form part of this record, and what the Court is now getting ready to do, if it is going to rule with the State, reverse its position and say yes, this preliminary hearing is part of the record. Now, I admit I am on the horns of a dilemma.
THE COURT: Because Dr. Chetta is deceased, that is the reason.
MR. WEGMANN: If it was not part of the proceedings last week, I don't see how it could be part of the proceedings overnight by osmosis this week.
THE COURT: I consider it to be admissible.
MR. WEGMANN: If you give me time, I can find it in here where the State makes the statement that the preliminary hearing was not for the purpose of perpetuating testimony, it is like a deposition, a civil deposition, you either take if for perpetuation or discovery, and when they did it by the strange proceedings before the three judges, they were in effect in a discovery proceeding as opposed to perpetuation of testimony.
MR. ALCOCK: The State is not the Louisiana Legislature, the Louisiana Legislature passed that Act, not the State. The State's personal appreciation of a particular legal procedures is irrelevant. I think that is quite properly being done by this Court.
MR. WEGMANN: The fact remains when you make a representation before a Court, you are making a judicial admission by which you are bound, and this statement that I read in here is a statement by the State, a judicial position which is taken by the State.
THE COURT: The Court --
MR. WEGMANN: Did the Court read the part that I am talking about, about the perpetuation? There is no need for me to find it in the transcript.
THE COURT: That point is covered in the Criminal Code, to cover any bill of discovery, pre-trial discovery.
MR. WEGMANN: It is our position, Your Honor, that the State has taken a position at the preliminary hearing, they made a representation to these three judges it was not for the purpose of perpetuating testimony. They are doing now a flip-flop and coming before this Court and saying yes, that is whey we did it. It is for the reason of perpetuating testimony, and I don't see how they in good faith can appear before this Court and say it was for the purpose of perpetuating testimony.
MR. ALCOCK: I have one small point and I won't perpetuate this argument. I think it is quite obvious on its face and rather the statements, the rather ludicrous statements that the State is using the preliminary hearing as a fishing expedition. We put our own witnesses on, and what were we doing, fishing from our own witnesses? Obviously it was not a fishing expedition.
MR. WEGMANN: This is Judge Bagert, Page 30, "Suppose this was taken by deposition in a civil matter, for instance. Let's remove it from this type of procedure. If there wan an objection made and the attorney propounding the question says I insist that my question be answered, who rules on that -- nobody, certainly the Reporter doesn't. Certainly this is a matter being taken extra judicially. Now, isn't that handled when the matter is presented to the Court who has to try the case before a Jury that they then rule on the admissibility of the questions and the testimony." Judge Bagert at one time was a civil lawyer, why the State asks for it I don't know, and we were under no obligation to put any witnesses on and we can't be criticized or we can't be penalized for not putting any witnesses on. They are the ones that put the witnesses on the stand, they put the witnesses on in their admosphere. We had nothing to do with the control of the proceeding.
THE COURT: The whole preliminary examination was a useless effort because the Grand Jury indicted Mr. Shaw, the Grand Jury indicted the Defendant.
MR. WEGMANN: I submit --
THE COURT: I have heard enough argument, Gentlemen. Under Article 295, "The transcript of the testimony of a defendant who testified at the preliminary examination is admissible against him upon the trial of the case, or, if relevant, in any subsequent judicial proceeding. The transcript of the testimony of any other witness who testified at the preliminary examination is admissible for any purpose in any subsequent proceeding 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 procured by the party offering the testimony."
I understand that the State is offering these pages of the transcript concerning Dr. Chetta's testimony -- let's see, Pages 314 to 361, then 361 to 381. That is roughly, that is roughly sixty-seven pages of transcript of Dr. Chetta. Now, the purpose, as I understand it as stated, is that they are trying to rebut the inferences that Perry Russo was undergoing psychiatric examination consultation care for some twelve to eighteen months, that he attempted to commit suicide, and from the way he answered the questions, they were trying to give the impression publicly that he was not -- he was not completely sane. I understand from Mr. Oser and Mr. Alcock that they are offering this for a specific purpose, they are offering this not to buttress the credibility of Mr. Russo, they are not offering it to show that the statements made were truthful or not, but the total substance of Dr. Chetta's testimony is whether or not he thought with the aid of diagnostic psychiatric aid that Mr. Russo was a sane person. I think that is the purpose of their offering, and for that limited purpose I am going to permit it, so I will permit it, and you can take a bill, and let's get the Jury down. Now, one other thing while I have the floor, just a second, if there is no objection on the part of the State or Defense, and this is going to be read verbatim, I would make a request that we do not impose another hardship on the Court Reporter if it is read verbatim and you follow it, would you permit it to be Xeroxed and put into the record.
MR. WEGMANN: I think the easiest way would be to furnish the Reporter with a copy and let him re-copy it.
THE COURT: You have a copy to follow it, do you not?
MR. WEGMANN: May I ask the Court one question? So that the record is clear, Your Honor, I would now like to ask the Court to include in its ruling whether or not -- what I understand to be the Court's ruling, the Court is now ruling that this transcript, preliminary hearing, is part of this proceeding?
THE COURT: No, I am not.
MR. WEGMANN: The Court is standing by --
THE COURT: I am only admitting that part of Dr. Chetta because he is deceased. the whole transcript is not a part of this record, no indeed.
MR. WEGMANN: Is the Court going to rule on the admissibility of each question and the objections we made at the time, or is the --
THE COURT: I will let him read the whole thing in toto. I suggest we read the whole thing. I am going to let it all go in and see what you object to. I am going to give them both sides of the picture.
MR. WEGMANN: You are still ruling the transcript is not part of the proceeding?
THE COURT: If he was here, I would not let that in, we would let him testify.
MR. DYMOND: We would like to object on the grounds, first, proper predicate has not been laid for the introduction of this transcript of the testimony of the preliminary hearing.
THE COURT: Dr. Chetta is now deceased, that was the predicate, Dr. Chetta is deceased.
MR. WEGMANN: It is not in the record that he is deceased, Judge.
THE COURT: I will ask you this, Gentlemen: Can you tell me that you will supply me with a copy of the death certificate?
MR. OSER: I will send down and get it.
THE COURT: Contingent upon you presenting that to me, I will proceed with the case and I will permit you to make that offer from the Bureau of Vital Statistics of the death of Dr. Nicholas J. Chetta, Coroner.
MR. DYMOND: Further on the grounds that the preliminary hearing was not conducted according to the rules of evidence as set forth in our law, and it was so held by the three-judge panel, and that this Court has in the course of its ruling on the admissibility of this material, affirmatively stated that objections to particular questions contained in the transcript of Dr. Chetta's testimony will not be permitted, and on the further ground that it is the contention of the Defense that the said three-judge court was illegally constituted and had no basis in law, and the further reason that the testimony of Dr. Chetta which is approximately two years old is not at this time relevant for the purpose of trying to refute alleged testimony or alleged questions to the effect that there was doubt or question as to the sanity of Perry Raymond Russo at the present time in view of the fact that the testimony of Dr. Chetta relates to a period some two years ago.
We will reserve the bill making the entire testimony up to this point, the Defense objection, the State's offering, the transcript of Dr. Chetta's preliminary hearing testimony, parts of the bill.
THE COURT: Bring the Jury down. Let the record show the Jury is present, the Defendant is present, both Counsel are present.
Now, let me get the status of the case as it is, as of this moment. There has been an offer made by the State to read from the transcript of testimony of Dr. Nicholas J. Chetta, based on Article 295 wherein he alleged and will prove by the offer of the death certificate from the Bureau of Vital Statistics, and the offer is made by the State not to buttress or improve the credibility of Mr. Russo, it is not to buttress or prove the truthfulness of the statements he may or may not have said, but it is merely for the purpose of contradicting the implication that Perry Raymond Russo was not of sound mind. With that limited purpose, I will permit the reading of the transcript from pages 314 to 381 inclusive from the transcript, and you may take your bill of exception.
MR. DYMOND: At this time we would like in the presence of the Jury to renew our objection to the Court's ruling on the grounds of relevancy and on the grounds previously stated.
THE COURT: Overruled.
MR. DYMOND: Including in the bill of exception the Court's ruling, the Counsel for the State's offering, the transcript of Dr. Chetta's testimony, the Defense objection and the reasons given by the Court.
THE COURT: Now, take this down, Mr. Reporter. There has been no objection, and in fact there is agreement in the request by the Court that the Court Reporter need not take down the reading of the transcript of Pages 314 to 381, but that Mr. Oser will let me have his copy and we will Xerox those pages and give it to the Court.