(REPORTER'S NOTE: COURT RECESSED AFTER WHICH THE FOLLOWING ENSUED:)
BY JUDGE BAGERT:
What was the question?
BY COURT REPORTER:
At this time, Doctor, was or was not sodium Pentothal administered to Perry Russo?
BY JUDGE BAGERT:
The objection is overruled.
EXAMINATION BY MR. OSER:
Q. Now, Doctor, will you answer the question, please?
A. Yes, sir.
Q. Doctor, will you tell the Court who was present when it was administered, and how it was administered, under what circumstances and in what way?
A. Mr. Russo was brought to Mercy Hospital, up to the second floor to the operating room suite. The number one room, the operating room, was used. Present was Mr. Russo, Mr. Sciambra, Mr. Oser, Dr. Zepernick, Dr. Wall, and myself, and also Sister Albertine, who is the supervising nun of the surgical suite.
Q. How was this administered, Doctor? What was the procedure that was followed?
A. The procedure that was followed was the patient was instructed to remove his coat, roll up the sleeve of his right arm, lie upon the operating room table, and that an intravenous drip of sodium Pentothal would be given to him. Prior to the actual administration of the drug, his blood pressure was recorded, his heart and lungs were examined, his respiratory rate was counted. After this was completed, then the needle was inserted into the vein of his arm, that is, the right arm, and the drip was regulated. The first solution that went into his vein was not that of sodium Pentothal, but that of normal saline. Then after the patient was used to the idea of the drip, the sodium Pentothal was then given to him by means of the drip method.
Q. Doctor, how long was this administered to Perry Russo?
A. Approximately forty minutes, all told.
Q. Doctor, I show you what the State now marks for purpose of identification, S-12, and ask if you have ever seen this exhibit before?
A. Yes, sir.
Q. Will you tell us what it purports to be and where you have seen it before?
A. This is the legal document that had been prepared by legal counsel of Mercy Hospital and it is called: "Consent to Medical and/or Surgical Treatment and Release of Claims."
Q. Now, prior to the administration of the saline and sodium Pentothal to Perry Russo, did you explain to Perry Russo that his signing of such a form would be required of him?
A. Yes, sir, I told Perry unless that he volunteered or consented to undergo the sodium Pentothal, I would not give it to him, and he said he would consent. Then we used the Mercy Hospital consent form, which he was told to read and read carefully, and then to sign his sign if he consented.
Q. Did he read this document in your presence, Doctor?
A. Yes, sir.
Q. Did he sign it in your presence?
A. Yes, sir.
Q. Was it witnessed?
A. Yes, sir.
Q. By whom?
A. By you, sir, Alvin Oser.
Q. Now, Doctor, on how many occasions did you see Perry Russo and have an opportunity to talk to him prior to the administration of sodium Pentothal?
A. The one occasion in my private office at 3524 Bienville Street.
Q. How many times, Doctor, have you had occasion to talk to Perry Russo after the administration of sodium Pentothal?
A. Approximately six times since, yes, sir.
Q. Were you present, Doctor, when Perry Russo was placed under hypnosis?
A. Yes, sir, at every one of the instances.
Q. Can you tell me how many times he was placed under hypnosis in your presence?
A. Three times, sir.
Q. And who was present on the first time?
A. On the first time that he was placed in a hypnotic trance
[Page 338 is missing.]
BY MR. DYMOND:
I didn't quite understand the question, if Your Honor please.
EXAMINATION BY MR. OSER:
Q. When sodium Pentothal was administered to Russo, was this administered to him under the accepted medical procedure?
A. Yes, sir, I may go back and explain who Doctor Zepernick and Dr. Wall are. They are the two anesthesiologists or medical doctor anesthetists for the hospital.
Q. Now, Doctor, based on your having talked to Perry Russo, having been present on three occasions when Perry Russo was under hypnosis state, what is your opinion, Doctor, as an expert in the field of psychiatry, as to the sanity or insanity of Perry Russo?
A. I feel that Perry Russo fulfills all the requirements of legal sanity.
Q. And what do you base this opinion on, Doctor?
A. On my talking to him, observing him, listening to his conversations, his actions, his past history, his knowledge of current events, the fact that he wasn't disoriented or was he hallucinating and that his answers were intelligent and readily [sic] and correct.
Q. Now, Doctor, I am going to ask you a hypothetical question as an expert in psychiatry. Take a white male, age twenty-five, one who has been to high school, been to college, received a degree in political science, is presently working as an insurance agent, that during 1963, in September, he was present when three other individuals plotted to kill and assassinate the President of the United States, from having known of this hypothetical person's background and from having heard him under sodium Pentothal, from having heard him on three occasions in a hypnotic state, from having heard what was said by him under sodium Pentothal and what was said by him under the three hypnotic states, what is your opinion as to his sanity in September of 1963?
A. I would say that he was not insane; that he was sane.
Q. What would you say of this hypothetical person's sanity or insanity as of yesterday and today if you had the occasion to see this hypothetical person on the witness stand for two days?
A. His behavior, of this hypothetical person, was that of a very rational, controlled, and well-disciplined individual.
Q. Now, Doctor, I believe you stated before that it was your opinion as an expert that Perry Russo was sane, and that part of your diagnosis was based on the fact that you talked to Perry Russo and obtained background from Russo, is that correct?
A. Yes, sir.
Q. What other things did you base your opinion on, other than the background received from Perry Russo?
A. His conduct, his behavior, he was well oriented as to time and space, he wasn't delused [sic], he wasn't hallucinated and he wasn't disoriented.
Q. Now, speaking specifically of the time when sodium Pentothal was administered to Perry Russo -- first of all, Doctor, is it not true, I believe you stated before in discussing sodium Pentothal, that it is possible for someone to fake being under sodium Pentothal, is that correct?
A. Yes, sir.
Q. What is your opinion as to whether or not what Perry Russo told and stated under sodium Pentothal as to whether or not he was faking the effects of sodium Pentothal?
BY MR. WEGMANN:
We object to this, Your Honor. It would seem to me, Judge, that what he is asking here is not a proper question to a psychiatrist or forensic medicine man. What he is really asking this doctor to do is to render an opinion which is peculiarly within the province of this court. This is what the Court has to decide is the veracity of this man.
BY JUDGE BAGERT:
No, no, no, no; I don't think that was the point.
BY MR. WEGMANN:
Then I misunderstood the question.
BY JUDGE BAGERT:
He asked him whether in your opinion as a physician and having administered this drug, to-wit: sodium Pentothal, and of your knowledge of this drug and of the reaction of people subjected to it, and having said that this state of trance, so to speak, I don't think he used that word, but that somebody can fake a condition of being under the effects of sodium Pentothal, in your opinion, do you think Perry Russo faked being under . . .
BY MR. WEGMANN:
If it's limited to that, I'll withdraw my objection.
EXAMINATION BY MR. OSER:
Q. You may answer it, Doctor.
A. This, I would say, was definitely not a fake on the part of Perry Russo. It was a good resulting examination by means of the Pentothal. I tested him while he was under the effects of Pentothal by asking him to try to touch his nose. And he did what we call a past-pointing test. The average man can reach out and touch his nose and he went beyond it and, in fact, couldn't find his nose, which showed that his musculature at that time was not coordinated at all. At that time he had a certain stagnis or a twitching of his eyeballs. He also had a rather heavy, slurring speech, and his respirations were deep, slow and regular. I think, to really convince that the test was a good one was the fact that after we discontinued the Pentothal and he was placed on oxygen to wake him up, after he was fully recovered from the effects of the drug, sodium Pentothal, he blurted out to Mr. Sciambra, "I forgot to tell you something," stated, he made a statement, the same exact statement he had made while under the effects of the Pentothal.
Q. Doctor, during the time you talked to Perry Russo prior to the administration of sodium Pentothal, did Perry Russo make a statement to you in your talking to him? Did he make a statement to you or have a conversation with you?
A. Prior to the administration of Pentothal? Yes, sir.
Q. And I think that you stated that you saw him on six or seven occasions after hypnosis?
A. Yes, sir.
Q. I mean, during the time of hypnosis after the administering of sodium Pentothal. During the time that you interviewed Perry Russo and had occasion to talk with him on these six or seven other occasions, did he make a statement to you at that time or statements, and have a conversation with you?
A. Yes, sir.
Q. Did part of this conversation or conversations have anything to do with the assassination of President Kennedy?
BY MR. DYMOND:
If the Court please, I object to that. I don't think that has any place in the record here. It is a conversation that took place between this witness and Dr. Chetta outside the presence of the defendant.
BY MR. OSER:
If the Court please, I'm still on the question of the sanity or insanity of this witness. I'm still asking the doctor as an expert along these fields and on what he based his decision or his opinion as to whether or not he was sane or insane. Now I'm asking him that in the times he interviewed or observed Perry Russo did or did not he say anything regarding the assassination of Kennedy.
BY MR. DYMOND:
If the Court please, the particulars of this interview cannot be given. If the doctor wants to say he had an interview, that's one thing.
BY JUDGE BRANIFF:
I want to understand this. He's asking him about the conversation which the witness made while under the influence of sodium Pentothal and under the influence of hypnosis, or are you talking about the conversations had with him prior to him being placed in these trances?
BY MR. OSER:
I'm speaking about the conversations that Dr. Chetta had with Perry Russo on the six or seven occasions and again on these six or seven occasions he stated the conversations had with Russo while he was not under hypnosis or sodium Pentothal.
BY MR. WARD:
May I say this, that we are dealing with the subject or topic of the conversation. We certainly are entitled to know what the subject of the conversation was without telling us what the conversation was.
BY JUDGE BAGERT:
In other words, the purpose of the question is to go into the subject without recounting details as to who might have done it and so forth. Is that right?
BY JUDGE BRANIFF:
All you want is a yes or no answer, right?
BY JUDGE O'HARA:
I think what the State is trying to do is to come through the back door.
BY JUDGE BRANIFF:
I think they're approaching the front door now.
BY MR. DYMOND:
They are attempting to do indirectly what cannot be done directly.
BY MR. OSER:
I differ with defense counsel.
BY MR. DYMOND:
Let me finish my objection, counselor. I think that the State should be forced to rely upon Dr. Chetta's expert opinion. Dr. Chetta knows what these conversations were and has already given his statement as to whether he thinks this man was sane or insane, both in 1963 and during the trial of this case.
BY MR. OSER:
I have the right to ask the doctor upon which he bases this opinion.
BY JUDGE BAGERT:
Gentlemen, at the last recess, we had gone into the question of sodium Pentothal in connection with psychiatry. After the recess, I'm glad my learned colleagues agreed with me that the citations I referred to were eminently in point. But now we are getting into another problem, and this is getting a little bit sticky right at this particular point. So, I think if all of you real Blackstone scholars would get in the library tonight and give us something in the morning, we could really resolve it, because at this point we're getting close. I think my brothers will agree with me. Is that right?
BY JUDGE BRANIFF:
I think he should answer yes or no to this question, and then let the next question be posed . . .
BY JUDGE BAGERT:
It looks like he wants to ask more questions than that, though.
BY JUDGE BRANIFF:
I think the next question would be the one to raise the issue.
BY MR. WEGMANN:
Judge Braniff, I believe this raises the issue. I believe that in relying on Dr. Chetta's integrity as a psychiatrist, I wouldn't know what questions to ask whether the man was sane or not. And I think Dr. Chetta knows what's the answer and he's answered the question. This is the position that I take. Whether he asked him if it was Monday or Tuesday, if Dr. Chetta says that's what's got to be asked. He's the guy that knows as a psychiatrist.
BY JUDGE O'HARA:
If we're dealing with sanity, I don't see any reason to stop. There's nothing to research on that. You've got to rely on the doctor's testimony.
BY JUDGE BAGERT:
If the question is as to sanity or insanity, Judge Braniff and Judge O'Hara feel we can pursue it a little further. The objection is overruled at this time. Repeat the question.
(THE QUESTION WAS READ TO THE WITNESS BY THE COURT REPORTER.)
EXAMINATION BY MR. OSER:
Q. Now, Doctor, during the time that Perry Russo was under sodium Pentothal and under the state of hypnosis on three occasions, did Perry Russo make statements or conversations in your presence? Yes or no.
BY MR. DYMOND:
Your Honor, objection.
BY JUDGE BRANIFF:
He just asked him if he made statements.
BY MR. DYMOND:
I'll withdraw it as to statements.
A. Yes.
EXAMINATION BY MR. OSER:
Q. Now, Doctor, the statements made by Perry Russo to you in your presence on these six or seven occasions when he was not under sodium Pentothal or hypnosis, and the statements made by Perry Russo in your presence while he was under sodium Pentothal and hypnosis, were they substantially the same?
BY MR. DYMOND:
I object, Your Honor. We are trying to get now into evidence the result of a sodium Pentothal test.
BY JUDGE BAGERT:
No, I don't think you're getting the results yet. I'm overruled. The objection is sustained.
BY JUDGE BRANIFF:
Do you have any authority for the question, for the introduction of that answer into evidence?
BY MR. OSER:
Yes, sir, the State says it is within the area of sanity or insanity, and the State cites the case of People vs. Modesto, where the State has a right to go into the expert opinion as to the sanity or insanity of the witness of which it has done . . .
BY JUDGE O'HARA:
You have already asked the question.
BY MR. OSER
Just a minute, Your Honor. The State has the right to go in and ask the doctor what he based his opinion on, and this is the fact the State is now attempting to go into.
BY JUDGE BAGERT:
Objection sustained.
EXAMINATION BY MR. OSER:
Q. Now, Doctor, what the subject Russo told you while he was not under these drugs or this state, and what he told you while he was under sodium Pentothal and hypnosis, was this part of what you based your opinion on as to his sanity or insanity?
BY MR. DYMOND:
Object to that, Your Honor. He's trying to do indirectly what the Court has already ruled cannot be done.
BY MR. OSER:
Your Honor, I'm merely asking the witness was what he heard from this person when he interviewed him upon which was one of the things he based his opinion on [sic], interviews, background material. Now, I'm asking the doctor what he obtained from this witness while he was not under the drug or hypnosis, and was what he did obtain from this witness while he was under hypnosis and the drug and a comparison of these two [sic] is just part of what he based his expert opinion on as to his sanity or insanity.
BY JUDGE BAGERT:
That's OK. Objection overruled.
BY MR. DYMOND:
If Your Honor please, this is indirectly . . .
BY JUDGE BAGERT:
He's not going to say it; he's just . . .
BY MR. DYMOND:
I realize that, Your Honor, but the reliability of sodium Pentothal in a court of law has not been established nor accepted, and here we are indirectly trying to get testimony into this record as to the result of a sodium Pentothal test. Now, whether you do it by a question turned around backwards, as has been done here, or the way the Court has already ruled on it, makes no difference. There's only one end trying to be accomplished here.
BY JUDGE BAGERT:
But the question of the use of sodium Pentothal, as I pointed out earlier in connection with psychiatric treatment, in connection with the determination of sanity, has been ruled admissible in the case of Esposito and also in the case of People versus Modesto, and with reference to the United States decision in the case of Bando it had no application. Now, the question directs itself purely and simply as to some of the basis that the doctor used to determine his sanity.
BY MR. WEGMANN:
I'm not quarreling with the Court's conclusion, the law that the Court stated before, as I stated before as to the question of sanity. To use the word "crutch," with all justice to the medical profession, as I understand it, they use this drug as a crutch or as one of the guidelines in diagnosing a patient as to the question of sanity or not. My point at this time, Dr. Chetta used it; it's recognized and accepted. This is what the Court says the Esposito case holds. But what I am saying now is that Dr. Chetta, when he gave his analysis or his conclusion as to whether the man was sane or insane at these particular times, at that time my notes say that the reason he did it was, he said that he found him not delused [sic] and not hallucinated. Now, it seems to me that what the State is attempting to do at this time is to go into particular details as to why he reached this conclusion, and I don't think they are entitled to do it, may it please the Court.
BY JUDGE BRANIFF:
We agree with you on that. The question did not go that far.
BY JUDGE BAGERT:
This question does not ask him what he said under these times. But there's nothing to preclude the physician from testifying as to how many times he examined him, and isn't the question of sanity based on some of the things that he said. If you've got a deaf-mute, I don't see how a psychiatrist could interview him. Without saying what he said, now. He's still not saying what he said. But the basis of his diagnosis is some of the things that he said. That's all he's asking him.
BY JUDGE O'HARA:
I think he's wrong.
BY JUDGE BAGERT:
He's trying to curve all around it, but he hasn't done it yet.
BY MR. WEGMANN:
Could we have the question read back, Judge?
BY JUDGE BAGERT:
Sure.
(QUESTION READ TO THE WITNESS BY THE COURT REPORTER.)
BY JUDGE O'HARA:
I think it's a very subtle disguise to get hearsay in.
BY JUDGE BAGERT:
The majority overrules you, Judge. We're two to one on this point.
BY MR. WEGMANN:
What did he say before and after the test, that's what he's saying.
BY MR. DYMOND:
That in effect is the question that is being asked, if the Court please.
BY JUDGE BAGERT:
Answer the question.
BY MR. DYMOND:
To which ruling, counsel reserves a bill of exceptions, objecting to the ruling of the Court on the grounds: first, that this is an indirect admission into evidence of the results of a sodium Pentothal test; secondly, it is in violation of the hearsay rule. We would like to make parts of the bill the entire testimony, all of the proceedings, objection of counsel and the ruling of the Court.
BY JUDGE BAGERT:
All right, Doctor, would you answer the question, please?
A. Yes, sir. In answer to the question I would say yes. These conversations did play a factor in coming to a definite conclusion.
EXAMINATION BY MR. OSER:
Q. Why, Doctor?
BY JUDGE O'HARA:
Conclusion as to what, Doctor?
A. Whether he was sane or insane.
EXAMINATION BY MR. OSER:
Q. Why, Doctor?
A. Because in the manner in which the conversations were carried on, the manner in which the conversations indicated certain activities, the manner in which dates that had to depend upon memory, also present happenings and also the coherence or the intelligence of the answer itself.
Q. Doctor, am I correct in stating that the use of sodium Pentothal and hypnosis is a diagnostic tool, isn't it. This is one of the many types of tools that are used to determine the . . .
A. This is a general question that Pentothal is used as a tool or an aid in the diagnosis of psychiatric patients? Do I understand that, Mr. Oser?
Q. Yes, sir.
A. Yes, sir.
Q. Now, Doctor, in the use of sodium Pentothal on a person, does this aid this person to recall more and in a more clearer [sic] fashion than one who is not under sodium Pentothal? Is this one of the effects of sodium Pentothal?
BY MR. WEGMANN:
I object to this, Your Honor. This is getting once again into the testimony as to what the -- he is asking the doctor, in effect, to say whether he was telling the truth or not under the drug.
BY JUDGE BAGERT:
Overruled.
BY MR. DYMOND:
To which ruling we would like to reserve a bill, making all of the testimony, all of the proceedings, the ruling of the Court, counsel's objection, which is based upon the fact that this is indirectly permitting in evidence the results of a sodium Pentothal test, for which there is no legal authority, all parts of the bill.
BY JUDGE BAGERT:
Answer the question, Doctor.
A. Yes, sir. The effect of sodium Pentothal is that it removes any mental blocks that an individual may have, and it permits them to recall or regress and it can recount certain instances that they have relived, they have to experience these instances in able to recall them. They do it rather easily and rather vividly.
[EXAMINATION BY MR. OSER?]
Q. Now, Doctor, the use of hypnosis, is this also like sodium Pentothal, in that one of its effects, hypnosis, that is, aids a person to recall more clearer [sic] certain events than if he were not under hypnosis.
BY MR. DYMOND:
I object to that question on three grounds. This is indirectly an attempt to get into evidence the results of a sodium Pentothal test . . .
BY JUDGE O'HARA:
It will be the same objection?
BY MR. DYMOND:
That is correct. Making the same integral parts of this bill as we did in the other one.
A. Mr. Oser, the thing that I think should be borne in mind is that there is a definite relationship or similarity between the two. In narco-analysis, in which you are inducing a person in a hypnotic state by means of a drug. In hypnosis, you are not using the drug. You are using a suggestive phase to get that person to regress and to recall. The ultimate end of the two is the same. These people can recall.
EXAMINATION BY MR. OSER:
Q. Now, Doctor, I'm asking you a hypothetical question as an expert. Take a twenty-five-year-old white male who had the educational background of receiving a college degree, a year of law school, was present when three men plotted the assassination of John F. Kennedy, that stated in detail certain things about the assassination plot, about diversionary fire, of means of exit from the country, or arguments and discussions about which was a good way and which was not a good way, and this same hypothetical person underwent sodium Pentothal and underwent hypnosis, and under sodium Pentothal and hypnosis more clearly explained the conversation of these three individuals, as to the plot, gave more specific dates of this plot, gave in detail certain facts that were not brought out by this hypothetical person before he was under this drug and hypnosis, what is your opinion as to this hypothetical person knowing right from wrong, and what is your opinion as to his sanity or insanity?
A. In my opinion, it wouldn't affect his sanity at all. He would still be sane.
Q. Your Honor, it is now 5:00 o'clock [sic] and the State intends to have Dr. Chetta on the stand for a while longer. The State suggests that we break for the day.
BY JUDGE BAGERT:
These gentlemen will have a subpoena outstanding, so we can't finish tonight. They have a subpoena outstanding to the Immigration Department, on which there has been no return, and the return of which is depending on the United States Attorney General.
BY SHERIFF HEYD:
Your Honor, the subpoena was served on Mr. C. W. Johnson, and he is waiting for permission from the Attorney General of the United States, I understand.
BY JUDGE BAGERT:
It's six or seven o'clock up there.
BY SHERIFF HEYD:
There's another witness, Your Honor, Mr. Ray from WTIX, who has been waiting in the anteroom.
BY JUDGE BAGERT:
Well, he's still under subpoena; he'll be under subpoena until tomorrow. Is there any reason why we can't adjourn?
(COURT ADJOURNED UNTIL 10:00 O'CLOCK [sic] AM, FRIDAY, MARCH 17th, 1967)