BY MR. OSER:
At this time the State wishes to offer, introduce and file into evidence that which has been previously marked S-9, which purports to be the outside of 3330 Louisiana Avenue Parkway, the house in which the apartment of Dave Ferrie was.
BY MR. DYMOND:
No objection to that.
BY JUDGE BAGERT:
No objection. So ordered.
BY MR. OSER:
At this time, the State wishes to offer, introduce and file into evidence that which has been previously marked for purposes of identification S-8, a photograph taken in the Orleans Parish Morgue of David Ferrie.
BY MR. DYMOND:
No objection.
BY JUDGE BAGERT:
So ordered.
BY MR. OSER:
At this time, Your Honor, the State wishes to offer, introduce and file into evidence that which has been previously marked for purposes of identification S-10, photograph of David Ferrie.
BY JUDGE BAGERT:
Any objection?
BY MR. DYMOND:
No objection.
BY JUDGE BAGERT:
So ordered.
BY MR. OSER:
At this time, the State wishes to offer, introduce and file into evidence that which has been previously marked for purposes of identification S-1, a photograph of Lee Harvey Oswald.
BY JUDGE BAGERT:
Any objection?
BY MR. DYMOND:
None.
BY JUDGE BAGERT:
So ordered.
BY MR. OSER:
At this time, the State wishes to offer, introduce and file into evidence that which has been previously marked for purposes of identification S-2, this photograph of Lee Harvey Oswald, as appeared in the Dallas Time Herald on Monday, November 25th, 1963.
BY JUDGE BAGERT:
Any objection?
BY MR. DYMOND:
None.
BY JUDGE BAGERT:
So ordered.
BY MR. OSER:
At this time, the State wishes to offer, introduce and file into evidence that which has been previously marked for purposes of identification D-23, a photograph of Lee Harvey Oswald.
BY MR. DYMOND:
No objection.
BY JUDGE BAGERT:
So ordered.
BY MR. OSER:
The State wishes to offer, introduce and file into evidence that which has been previously marked for purposes of identification D-24, an artist's sketch of Lee Harvey Oswald.
BY MR. DYMOND:
No objection.
BY JUDGE BAGERT:
So ordered.
BY MR. OSER:
At this time, the State wishes to offer, introduce and file into evidence that which has been previously marked for purposes of identification S-20, a photograph of Clay Shaw.
BY JUDGE BAGERT:
Any objection?
BY MR. DYMOND:
No objection.
BY JUDGE BAGERT:
So ordered. Let it be introduced.
BY MR. OSER:
The State wishes to offer, introduce and file into evidence that which has been previously marked for purposes of identification S-21, an artist's sketch of Lee Harvey Oswald.
BY MR. DYMOND:
No objection.
BY JUDGE BAGERT:
So ordered.
BY MR. OSER:
The State wishes to offer, introduce and file into evidence that which has been previously marked for purposes of identification S-26, a photograph of Clay Shaw.
BY MR. DYMOND:
No objection.
BY JUDGE BAGERT:
So ordered.
BY MR. ALCOCK:
Your Honor, also in conjunction with this offer, the State at this time asks the Court to take judicial notice of the fact that on November 22nd, 1963, in Dallas, Texas, President John Fitzgerald Kennedy was assassinated, and that two days subsequent to that, or immediately within that time period, Lee Harvey Oswald was formally charged with the assassination of John Fitzgerald Kennedy, this being the same Lee Harvey Oswald who was identified in the picture, S-2, as reflected in the Dallas newspaper, taking particular note of the headline in that paper.
BY MR. DYMOND:
Now, if the Court please, we object to that on the ground that RS 15:422 sets forth what things the court can take judicial notice of, and this certainly isn't one of them or two of them.
BY JUDGE BAGERT:
The State has asked us to take judicial notice of the fact that on November 22nd, 1963, the President of the United States of America was assassinated in Dallas, Texas, and that about two days later, the alleged assassin was shot by Ruby.
BY MR. ALCOCK:
I didn't make that a part of my . . .
BY JUDGE BAGERT:
They just said that about two days later, the alleged assassin was shot.
BY MR. ALCOCK:
Was formally charged. The alleged assassin, Lee Harvey Oswald, was formally charged with the murder of John Fitzgerald Kennedy, as is reflected in the newspaper already introduced in evidence, more particularly the headline of that paper.
BY JUDGE BAGERT:
Under sub-section 6 of the article you cited, Mr. Dymond, it provides this. Among the things that the court can take judicial notice of are, sub-section 6: "The laws of nature, the measure of time, the facts disclosed by the calendar, the facts of geography, the geographical and political subdivisions of the world, the facts of history and the political, social and racial conditions prevailing in this State." We, therefore, take judicial notice as requested by the State of these two items, to-wit: That the President of the United States of America, John Fitzgerald Kennedy, was assassinated on November 22nd, 1963, and that two days later, an alleged assassin, namely, Lee Harvey Oswald, was charged, formally charged, with the murder of the President.
BY MR. DYMOND:
To which ruling, counsel respectfully takes a bill of exception, making all of the evidence and testimony, all of the proceedings, objection of counsel, together with the reasons therefor, together with the ruling of the Court, parts of the bill.
BY MR. OSER:
At this time, Your Honor, the State wishes to offer, introduce and file into evidence that which has been previously marked for purposes of identification S-12, the consent to the medical and surgical treatment form signed by Perry Russo, witnessed by myself in the presence of Dr. Nicholas Chetta, in Mercy Hospital.
BY JUDGE O'HARA:
Any objection to this, Mr. Dymond?
BY MR. DYMOND:
No objection.
BY JUDGE BAGERT:
Let it be introduced.
BY MR. OSER:
The State rests, subject to its right of rebuttal.
BY MR. DYMOND:
If the Court please, at this time pursuant to the provisions of RS 13:3713, the Defense would like to offer, introduce and file into evidence the report of the Warren Commission, a one-volume report, being the official volume as published by the United States Printing Office in accordance with the requirements of the statute cited, and we would like to mark the same D-32.
BY JUDGE BAGERT:
As to the introduction of that particular volume, Judge O'Hara feels that it is in accordance with the statutes of the State of Louisiana and should be admitted in evidence. Judge Braniff and I believe that it should not. And my reason is simply this. If we are going to accept the Warren Commission's report as being factual, we have just wasted a whole week of time here. I don't care what statute was ever enacted, to accept the Warren Report, even if it were a constitutional amendment, and at some time later we, or any law abiding agency, law enforcement agency, would some day conceivably come up with six confessions, six photographs, six eyewitnesses, it would all be for naught.
BY MR. DYMOND:
If the Court please, that statute merely provides that such a report is admissible and is prima facie evidence of its contents. If anybody came up with the evidence which you have outlined, it would certainly be sufficient to overcome any prima facie evidence.
BY JUDGE BRANIFF:
I am objecting to it because it is fraught with hearsay and contradictions.
BY MR. WEGMANN:
May I say something, Judge? This statute, Judge, once again we're on a technicality, but much the same as you interpret the assassination as a fact of history, which I agree with you, it is a fact of history; insofar as this court of law is concerned, and in this particular case, it is an essential fact, and putting it in the manner in which it has been allowed to get into the record is in fact putting hearsay in on an essential fact. Now, I can jump and scream and holler all I want, and object to the Court about it. But the fact remains that the Legislature has seen fit in their right to say that the Court in its discretion may determine what a fact of history is. And I conclude that this is a fact of history. Now, as I understand it, Judge Braniff's objection and, once again, I am interpreting it, and if I'm interpreting it wrong, I'm doing it wrong, that this is fraught with hearsay. First of all, we are not at this moment introducing the twenty-six volumes, which deal with the exhibits which the Judge mentioned the other day, and which deals with all of the testimony which has been taken. This is the report of the Commission itself as distinguished from the evidence, Judge Braniff, upon which the Commission's finding was made. Now, what this statute says, this statute doesn't say that this is irrebuttable [sic]. It doesn't say that the Court cannot arrive at a conclusion different from this any more than if I had a right right now, if I could do it or if it were in my province to do it, to put witnesses on the stand and prove that Kennedy wasn't assassinated on the 22nd of November, but that it happened on the 23rd or the 24th, if, in fact, it could be done. All this statute says is that this is prima facie evidence and this is all -- this is prima facie evidence of what it purports to contain. If the Court in its deliberation, Judge Bagert, concludes that it has evidence before it now that was not before the Warren Commission at the time its conclusion was reached, the Court is perfectly within its discretion and its liberty to eventually maintain that. But, at the same time, when you read the cases without citing them, you can find cases where market reports from the US official Department of Commerce have been admitted in evidence; aerial photos have been admitted into evidence under this section of the law. It's clear that for what it's worth, the Defense is entitled to have this commission go in. Now, if Judge Braniff in his deliberation wants to disregard it because he believes that it is composed of hearsay evidence or a great deal of hearsay evidence, or it's composed of evidence that he doesn't want to accept, that's his right as a judge. Like he can do with any type of evidence. But the statute is specific. It couldn't be clearer. This is a commission. This isn't a commission of a department of the government; it's a Presidential Commission. And all that we say is that -- it doesn't -- it says that same may be read or referred to as such in all courts in this State. And that's what this is. And, I don't have it in front of me, but when you read the act as it was originally enacted by the Legislature, it leaves no doubt in your mind but that this was the intention of the Legislature. We're entitled to have this go in the record. If the Court wants to disregard it, you can disregard it. If you don't want to read it, you don't have to read it. But we are entitled to have it go into the read, for what it stands for and for what it's worth, much the same as the picture that was put in. The Court may conclude that all of the exhibits that the State has put in mean nothing, and if you do, fine. The Court can conclude that the two or three exhibits that we put in mean nothing. Then if you do, that's what the Court has the wisdom to do. But the Court, I don't believe, can say that here's a statute and I don't like the statute; I don't like what it says. So, therefore, I'm not going to let this into evidence. And let me read this to you. This was Act 70 or House Bill No. 36, Act 70 of the 1942 Legislature, and this was the enabling statute. It says to authorize the reception of all official records and other documents being enacted to regulations and decisions or rulings or proceedings or reports or other official acts of the Congress or any Federal executive department or subdivision thereof. This is what this is. And, as I say, to me it is a fact, just like any other fact. You either accept it or you reject it. And you don't have to reject it. You can say, I'm convinced that what the State has put in overcomes or overwhelms what is in the Warren Report. But this is all it is. But I don't think you can tell me, I don't like a statute; I don't think the statute should have been passed by the Legislature, and, therefore, it doesn't apply to you, Mr. Wegmann and Mr. Dymond. I don't think you can say that. It's not like when I stand before you and you issue a ruling. I may not like it. Like I don't like your guidelines. I didn't like your guidelines, but I followed them because when a lawyer is before the Court, that's my oath, to follow what the Court says. Like it or not. And, without being offensive to the Court, I submit to you that that's where you find yourself with the Warren Commission. You have sworn to uphold the laws of the State and apply them. And this is one of the laws of the State. And I say you are not sworn to follow them, but you have sworn to apply the law. In this particular case, I submit to you that you've got to let this volume go in. Now, this volume I distinguish from the twenty-six volumes. That may be something else. The twenty-six volumes may be an entirely different thing. But this volume is the report of a commission, and this is prima facie evidence of what it stands for. And, if you and Judge Braniff, in your deliberations, want to disregard it, fine. If you want to read part of it and disregard the rest of it, fine. There's nothing that says you've got to read everything that's filed in the record. I just say that we are entitled to have the benefit of the statute, enacted for our benefit, just like the State. We can almost argue that the Warren Commission is a historical fact. It is. It should be. It's disputed and a very controversial historical fact, but it also is a historical fact. It may even come under judicial cognizance. But I submit to you that this statute is much more specific than judicial cognizance. And if we're going to take one thing under a statute and put it in, the Defense is entitled to the same thing.
BY JUDGE O'HARA:
Mr. Wegmann, when I agreed that it was admissible, I don't want it implied or inferred that I am in complete agreement with the findings of the Commission. I would just like to make that perfectly clear. It's admissible for what it's worth. That's my position.
BY MR. WEGMANN:
And that's how we're offering it. For what it's worth.
BY JUDGE BAGERT:
My position is that the statute which you cite was not intended to cover such a situation. This was a commission -- it was an investigative commission which was formed, and they took the testimony or interviewed some five or six hundred witnesses, and many of the witnesses gave their statements to some investigative agency, who then in turn gave the testimony to the Warren Commission. To say that it's hearsay is putting it mild [sic]. In many instances, it is five or six steps removed from the appearance before the Commission. Many of the witnesses who testified, New Orleanians, Nick Graffagnini, who ran the Show-Bar, who allegedly saw Jack Ruby in the Show-Bar in July of 1963, for an example. He didn't go to Washington to testify. Some people interviewed him, interrogated him. So you're five or six steps removed. Your hearsay is six places away, among other things. And what's more, you cited very vigorously the right of confrontation as established by the Sixth Amendment to the Constitution. So, for all those reasons, I positively will not vote to accept the Warren Report in evidence.
BY MR. DYMOND:
To which ruling, counsel for defendant would like to reserve a bill of exceptions, making the entire record, all of the testimony, the exhibit marked for identification D-32, together with the Revised Statutes 13:3713, together with the ruling of the Court, parts of the bill. We, at this time, if the Court please, would also like to again offer the entire Warren Report, including all of the testimony, together with the actual report volume, which is the subject of our last bill. We anticipate the ruling of the Court will be the same.
BY JUDGE BAGERT:
The majority is that it be declined.
BY MR. DYMOND:
We would like to reserve a bill, marking the entire twenty-seven volumes for identification D-33, and the same integral parts of the bill of exception.
If the Court please, the Defense rests.
(ARGUMENT BY MR. WEGMANN -- NOT TRANSCRIBED.)
(ARGUMENT BY MR. ALCOCK -- NOT TRANSCRIBED.)
(AFTER A BRIEF RECESS, THE FOLLOWING ENSUED.)
BY JUDGE BAGERT:
Sheriff, I want to make certain that this finding of the Court is received with dignity and decorum. I don't want any shouts or outcries, outbursts, nor do I want anyone running out of here and trampling over anybody. Criminal District Court for the Parish of Orleans, State of Louisiana, Magistrate No. 703, Arrestee: Clay L. Shaw. Judgment of the Court. This court finds that sufficient evidence has been presented to establish probable cause that a crime has been committed, and, further, that sufficient evidence has been presented to justify the bringing into play the further steps of the criminal process against the arrestee, Clay L. Shaw. The defendant is released on his bond. New Orleans, Louisiana, March 17th, 1967, signed Malcolm V. O'Hara, Matthew S. Braniff and Bernard J. Bagert.