CRIMINAL DISTRICT COURT
PARISH OF ORLEANS
STATE OF LOUISIANA
STATE OF LOUISIANA vs. CLAY L. SHAW
198-059
1426 (30)
SECTION "C"
EXCERPT OF PROCEEDINGS IN OPEN COURT
Afternoon, February 12, 1969
Charles A. Neyrey, Reporter
B E F O R E: THE HONORABLE EDWARD A. HAGGERTY, JR., JUDGE, SECTION "C"
WEDNESDAY, FEBRUARY 12, 1969
THE COURT RECONVENED AT 1:30 o'clock p.m.
ANDREW J. SCIAMBRA, recalled to the witness stand, continued to testify as follows:
THE COURT: Is the State and Defense ready to proceed?
MESSRS. DYMOND & ALCOCK: Yes.
THE COURT: Mr. Sciambra, your oath is still binding.
[text missing from transcript]
THE WITNESS: I do.
BY MR. ALCOCK:
Q: Mr. Sciambra, is this the memorandum prepared by yourself and Mr. Oser?
MR. WILLIAM WEGMANN: I object to him leading the witness.
THE COURT: You are leading the witness.
MR. ALCOCK: I will rephrase the question.
BY MR. ALCOCK:
Q: What does this memorandum represent to you?
A: This is the first memorandum that Mr. Oser and I dictated.
Q: Do you recall what day that was you dictated the memorandum?
A: February 28.
Q: Now without going into the context of the memorandum what area or what interview were you allegedly covering when you dictated this memorandum?
A: I was covering my first interview with Perry, parts of it.
Q: When was that?
A: In Baton Rouge on February 25.
Q: Referring to S-25, the memorandum shown you?
A: I was referring to the sodium pentathol interview with Perry which was also on February 27.
Q: Were you present during the administration to Perry Russo of sodium pentathol?
A: Yes, sir.
Q: Were you present the entire time?
A: Yes.
Q: Were you taking notes during the interview?
A: Not me, no.
Q: Was Mr. Oser to your knowledge?
A: He was.
Q: And did you have occasion subsequent to then to dictate a memorandum in conjunction with Mr. Oser relative to what transpired at the sodium pentathol interview?
A: I did.
Q: Is that what you identify as S-25?
A: It is.
Q: Again, Mr. Sciambra, without going into the nature of the contents of the memorandum, I'm going to ask you just to quickly peruse it at this time.
A: (Witness complies.)
Q: Having read the memorandum, Mr. Sciambra, do you see any errors or omissions committed by yourself in the compilation of this memorandum?
A: I do.
Q: What would that be?
MR. WILLIAM WEGMANN: I object, Your Honor.
THE COURT: On what grounds?
MR. WEGMANN: On the grounds that he is now attempting to get the contents of the memorandum in the record which is hearsay.
MR. ALCOCK: I asked him, Your Honor, I think my question was whether or not there were any errors or omissions committed by him and not anything said by the person interviewed.
MR. WEGMANN: You're finished?
MR. ALCOCK: Yes.
MR. WEGMANN: He then said "Yes, I do," or "did," and then I believe Mr. Alcock asked him what they were and that is the question I am objecting to.
THE COURT: Is not the memorandum a dictation by this witness?
MR. WEGMANN: No, sir, it is not.
THE WITNESS: It is.
MR. WEGMANN: He testified it was dictated by both Oser and himself.
THE COURT: Was it dictated by Mr. Sciambra or dictated both by Mr. Oser and Mr. Sciambra?
BY MR. ALCOCK:
Q: Mr. Sciambra, were you present during the entire time either you or Mr. Oser
were dictating any portion or the entire statement?
A: I was.
Q: And the errors or omissions you are addressing yourself to would have been committed by yourself or Mr. Oser, if you can recall?
A: By me.
MR. ALCOCK: I still believe Your Honor, he has a right to say what the error is.
THE COURT: I think the position is whether or not Mr. Sciambra can tell us while on the stand what he dictated and what errors he made without referring to anything Mr. Oser may have said.
MR. DYMOND: If the Court please, it is our position that in order to have him testify to what the errors are he would have to refer to what is in the memorandum as opposed to what was said by a witness under the influence of sodium pentathol and what a witness says under the influence of sodium pentathol is clearly inadmissible, which has been held in the case of Lindsay versus The U.S.
THE COURT: I am familiar with that 9th Circuit case.
MR. DYMOND: And also Knight versus State.
THE COURT:
I understand the legal
[text missing]
That is not what we have with Mr. Sciambra. While I understand the legal status at this moment is that Mr. Alcock is asking Mr. Sciambra to state on the witness stand, either as a self-serving declaration, what he dictated. That is not hearsay as to what he did.
Now if after he said he dictated it and he said he made a mistake and wants to correct it, that is something else but I will not permit him to state what Mr. Oser said. If you understand
MR. DYMOND: In order to permit him to
[text missing]
It would be right in the teeth of these two decisions.
THE COURT: May I see the statement?
MR. WILLIAM WEGMANN: He testified this is a sodium pentathol memorandum.
THE COURT: I haven't seen this exhibit. You have had the benefit of seeing it and I haven't.
This memorandum is typed in A. J. Sciambra and the"I" in the memorandum refers to you, is that correct?
THE WITNESS: Yes.
MR. ALCOCK: I'm not trying to pull the wool over the Court's eyes and I will admit this is the result of what transpired at the sodium pentathol administration. Mr. Sciambra is recounting, and if I am incorrect Mr. Sciambra can correct me, but what, what Perry Russo said during the sodium pentathol interview and he's not trying to fool the Court. This is what this is.
MR. WILLIAM WEGMANN: That is what the objection is aimed at.
MR. DYMOND: Your Honor, I'd also like to point out those cases go into greater detail explaining why sodium pentathol evidence is inadmissible.
THE COURT: I read this Temple Review and that covers the point.
MR. WILLIAM WEGMANN: And agrees with what we are stating.
MR. ALCOCK: Your Honor, I would like to make the statement for the record that at this time I would offer the statement in evidence and if the Court rules it inadmissible I think in fairness to the defendant I would like to also offer it in evidence.
MR. DYMOND: To which exhibit we object on the grounds it is supposedly a sodium pentathol statement.
MR. ALCOCK: Before the Court rules on S-11 and S-12 that is marked for identification purposes, did you not make the statement you used those typewritten documents to use?
MR. DYMOND: If the Court please, that is actually not a verbatim transcript. This is nothing but a statement from memorandums and from notes as to what supposedly was said by this witness while actually under sodium pentathol.
THE COURT: The first objection is the witness shouldn't be able to use a memorandum prepared by him to bolster his testimony and that the best evidence is while he is on the witness stand.
MR. ALCOCK: I think the Court has put its finger on the issue quite properly yesterday when we were referring to the transcript of the hypnotic session. He was going to introduce those and attempted to do so. Yesterday his position was that he was going to allow them in evidence and allow his expert to view the questions and answer. His objection at this time is that the memorandum in essence is what Perry Russo said under sodium pentathol. If it objectionable here and inadmissible, it is equally inadmissible to introduce the transcript of the hypnotic session and this is what they have been arguing all along.
THE COURT: The transcript as to what Dr. Fatter did.
MR. ALCOCK: The exhibits marked by Defense which were the actual transcripts of the questions and answers by Mr. Perry Russo while under a hypnotic trance. If this is not admissible, that is not admissible.
THE COURT: They have a copy of your DA file that your stenographer took in the District Attorney's office?
MR. ALCOCK: They have a copy of the hypnotic session.
THE COURT: And that -- do you intend to use those documents in corroboration of your own expert?
MR. ALCOCK: They haven't introduced them yet but it's certainly on the same principal.
MR. DYMOND: But you can't make something admissible that is inadmissible.
MR. ALCOCK: But I think that the opportunity should be given.
THE COURT: Just give me a minute because I think I know the legal principle involved.
I understand that earlier this morning Mr. Oser made the allegation that the testimony of Dr. Chetta was offered not to show the credibility of Perry Raymond Russo nor to show that he was speaking the truth but merely to show that Dr. Chetta gave these various tests and was present to firmly concl [sic]
the man was sane
[text missing]
it was admitted for.
As I understand the status of the case you are asking Mr. Sciambra to bolster and give credence and truth to the statements made by Russo under the influence either of sodium pentathol or a hypnotic influence.
MR. ALCOCK: Your Honor, I feel it is also corroborative of the testimony of Mr. Sciambra due to the fact that the so-called Sciambra Memorandum was not the first memorandum and that this was the first one and that the content of this memorandum very clearly and is every crucial to the Sciambra Memorandum in this case.
THE COURT: I think I will sustain the objection to this exhibit which cannot be received in evidence but I'll not stop the State from proceeding to question the witness on what he did and what he said as that is not objectionable, that is not hearsay and I will
[text missing]
State-25 cannot be received in evidence.
MR. ALCOCK: Certainly I don't want the Court to commit itself in advance but I assume that the Court will assume the same posture when an attempt is made to have anybody testify for Defense Counsel to the exhibit he's objecting now to even if it was an exact transcript it is hearsay and it will be hearsay later on if that is the Court's ruling.
MR. DYMOND: We can cross that bridge when we get to it.
THE COURT: You may go into the question of prior contradictory statements. It is not a transcript of something like a stenographer, it is more a transcript of notes.
MR. WILLIAM WEGMANN: I suggest we cross that when we get to it.
THE COURT: I can't anticipate what will happen. You want this back, S-25, or Counsel has a copy?
MR. WILLIAM WEGMANN: He gave it to us to read at lunch time.
BY MR. ALCOCK:
Q: Mr. Sciambra, during the course of the sodium pentathol interview, did you
propound any questions to Perry Russo?
A: I did.
Q: Can you tell us what questions you propounded?
MR. DYMOND: We object to this. This is attempting to indirectly do what --
MR. ALCOCK: This is what the Court announced we can do.
THE COURT: I ruled he can state what he did but not what Perry Raymond Russo said. That is the position I've taken all morning.
A: I asked Perry if he could tell me in more details about the meeting in Dave Ferrie's apartment between Dave Ferrie, Leon Oswald and Clem Bertrand.
BY MR. ALCOCK:
Q: You recall any other questions you propounded on this occasion?
A: Essentially I went over some or not all that we talked about in Baton Rouge. I was specifically more concerned with the meeting that took place in Dave Ferrie's apartment between Clem Bertrand, Leon Oswald and Dave Ferrie than anything else.
Q: Mr. Sciambra, getting back to the memorandum identified as State & Defense 20, were you in court yesterday when Mr. Russo testified?
A: Which is State & Defense 20?
Q: That would be the so-called Sciambra Memorandum.
A: Yes, I was.
Q: Mr. Sciambra, did you acknowledge that the omissions and mistakes testified to yesterday were the result of your commenting on the words of Perry Russo --
MR. DYMOND: I object as leading, the very form of it.
BY MR. ALCOCK:
Q: Would those omissions or errors be the result of your work product?
A: These omissions and errors and inaccuracies would be the result of my trying to report in my own words what Perry Russo told me on February 25 and plus physically not as concerned with the descriptions in the second memorandum as the first memorandum being that the first memorandum also handled the Ferrie, the party that took place in Ferrie's apartment.
MR. DYMOND: I object to that, Your Honor, and ask that the Jury be instructed. He is testifying to the content of the memorandum which you ruled is inadmissible.
MR. WEGMANN: He is testifying to what Russo told him when he is therefore doing indirectly what you told him he couldn't do directly.
THE COURT: Gentlemen, we are on a very thin line. He can testify what he put in this memorandum and give us the reasons why he did it but he cannot tell us what Russo told him and that is not hearsay and doesn't violate Article 434 on hearsay but he can't tell us what Russo said.
MR. DYMOND: Your Honor, you say he can testify to what he put in his memorandum. It is the contention of this witness he can reveal what Russo told him while under sodium pentathol but he cannot testify to what he put in his memorandum because that is testifying as to what Russo told him.
THE COURT: He can testify that he dictated the memorandum and generally what it contains but he can't testify in detail as to what Russo told him.
MR. DYMOND: That is exactly what he is doing.
THE COURT: Then I sustain your objection.
BY MR. ALCOCK:
Q: Mr. Sciambra, when you say "first" or "second" memorandum, would you please explain to us what you mean.
A: When I say first memorandum I am referring to the memorandum pertaining to the sodium pentathol interview dictated on the morning of February 28. When I say second, I am referring to the one that began that morning and ended by the arrival of Perry Russo and which was completed seven to ten days later. That memorandum is the one that Mr. Dymond has labeled the Sciambra memorandum.
Q: Now, Mr. Sciambra, have you ever met James Phelan?
A: I did.
Q: Do you recall when you first met him?
A: It was sometime around the preliminary hearing, but I don't remember exactly the date.
Q: To your knowledge did you know that Mr. Phelan was going to interview Perry Russo in March 1967?
A: Did I know what?
Q: To your knowledge did you know that he was going to interview Perry Russo in March of '67?
A: I was the person that set up the interview.
Q: Were you present at any time during the course of that interview?
A: In Baton Rouge?
Q: In Baton Rouge.
A: I wasn't.
Q: Directing your attention once again to the interview with Perry Russo on the date of February 25, 1967, did you mention the name Clay Shaw?
A: I did not mention any names of any photographs that I showed Perry Russo. Whenever I interview anybody I never mention names; I just show them the photographs and if they identify that they tell me.
MR. ALCOCK: Now, Your Honor, rather than getting into a shouting match, may I understand the Court's position that I may not ask Mr. Sciambra anything that Russo did or said at the time of this interview on February 25. Is that the Court's ruling?
THE COURT: I think he can testify to a physical fact as something that happened in his presence, what happened, but he can't testify to any verbal or oral testimony, but he can testify if someone did an act, he can say he witnessed it and that he did such and such and that would not violate the hearsay rule.
In other words to go further: Under Article 434 hearsay evidence is inadmissible evidence except as otherwise provided in this Code, however, in State versus Morgan -- a witness may tell all that he and others did in conducting an experiment but not what others said on that occasion.
MR. ALCOCK: I appreciate the hearsay rule but generally without going into a lengthy argument this might well be an exception for this reason, that Perry Russo was examined extensively and was attempted to be impeached by Mr. Sciambra's memorandum and it seems to me only fair that we allow Mr. Sciambra to say what was told to him and why the errors are in the memorandum.
THE COURT: You are bringing up a new point. In other words let me hear Mr. Alcock out on this and I will be happy to hear, I will be happy to hear your objection. I think you brought up a new facet. In other words, as I understand your position, your posture at this moment is that when you came up with this memorandum called roughly the Sciambra Memorandum, and you offered to introduce it as an exhibit it was joined in by the Defense as State & Defense 20, and then the Defense was permitted to minutely interrogate Russo as to the contents of this whole memorandum.
As I take it now, Mr. Alcock, your position is that that opened the door as to what is hearsay and what is not when he cross-examined Russo and now your position is that since he opened the door you should be able to examine Mr. Sciambra on the memorandum itself.
MR. ALCOCK: That is my position.
THE COURT: That is a new facet and I agree with your position on that.
MR. DYMOND: Don't we get a chance to argue?
THE COURT: Yes.
MR. DYMOND: If the Court please, the law specifically states that when a witness in a criminal case testifies on any point that he may be cross-examined on anything in the entire case. Now how we can open the door, any doors by cross-examining Perry Russo on a statement or a memorandum of what he is supposed to have said at a certain time, I don't know.
The Code specifically sets forth, and Your Honor was about to read it, the exception to the hearsay rule and I don't think the Court will find any such exception as this urged.
THE COURT: Mr. Dymond, I may take issue with you as to this memorandum as to when it was offered by the State I would have refused to have permitted it to be introduced but you joined in it. It would not have been part of the case if you had objected.
MR. DYMOND: Certainly he wanted it in evidence.
THE COURT: You wanted to use it to cross-examine Russo.
MR. DYMOND: That is correct and it has been read to the Jury and to be used for cross-examination that does not create a new exception to the hearsay rule.
THE COURT: Also now you have opened the door by using this memorandum for purposes of cross-examination and now you want to refuse the State the right to examine the man who made the statement.
MR. DYMOND: Your Honor, it is the Court's determination that we opened the door to hearsay by merely cross-examining the witness?
THE COURT: You used the contents of the memorandum to cross-examine Russo and I am going to permit the State to use the contents to examine Mr. Sciambra who was the one who wrote the memorandum. Let me make my ruling.
MR. WILLIAM WEGMANN: May we submit an argument --
THE COURT: Certainly.
MR. WEGMANN: I was just getting up. When that was put in evidence, put in evidence by the State in Direct Examination and that was not put in on cross-examination of Russo, but it was put in on the Direct Examination. Another think at this time any statement that was put in the record based on what one person would say to another told him, that is the rankest kind of hearsay and the opposite of your ruling before lunch.
THE COURT: I disagree with you. Mr. Dymond counted allegedly 26 errors, where errors, omissions, exceptions or inconsistencies occurred. Since he used the memorandum extensively to cross-examine Russo, and it was offered by the State and joined in by the Defense, you made no objection, because if you had objected I don't know what the ruling would have been but certainly I don't think it would have been received in evidence without your joining in.
MR. WEGMAN: We would like an opportunity to argue out of the presence of the Jury.
THE COURT: My ruling has been made and you can take your bill of exception. I am going to rule that you can question -- Mr. Alcock can question the witness Mr. Sciambra on the Exhibit State & Defense 20 for whatever purposes you have in that memorandum and this will overrule your objection.
MR. WEGMANN: For purposes of clarification, is it also you ruling that Mr. Alcock may elicit statements made by Mr. Russo to Mr. Sciambra outside the presence of this defendant in Baton Rouge, Louisiana?
THE COURT: No, sir. No, sir. I will have to rule as the questions are put. He would have to stay within the bounds. I don't want him testifying -- Mr. Alcock wants to question him on these errors, omissions, or inconsistencies.
MR. WEGMANN: Your Honor, if I am wrong, Mr. Alcock, please correct me. It is my understanding that Mr. Alcock now wants to go into the area of what Perry Russo reportedly told Mr. Sciambra in Baton Rouge.
THE COURT: Let me send the Jury upstairs and I will hear arguments on it and I will rule.
(THE JURY WAS EXCLUDED FROM THE COURTROOM.)
MR. DYMOND: Your Honor --
THE COURT: Let me hear Mr. Alcock first and then I'll be glad to hear your part.
MR. ALCOCK: Your Honor, what I was attempting to do, as Mr. Dymond stating during his examination there were some 26 errors or omissions and at one point he even asked whether or not there was anything correct in the memorandum.
It is my position that Mr. Sciambra should be able to go down the memorandum and explain how the errors found their way in the memorandum. I will admit that indirectly there might be some inferences as to what was said but I think it's only fair that Mr. Sciambra be given an opportunity to explain how these errors crept in, if they were omissions or errors. We have the Jury to understand at this junction that the memorandum is frought with errors and I think this man should be able to be given an opportunity to correct that.
MR. WEGMANN: If the Court please, within the bounds of legality. We don't want to not allow Mr. Sciambra time to explain anything.
THE COURT: That is what I understood.
MR. WEGMANN: As long as the Court rules that Mr. Sciambra can be kept from testifying to what Mr. Perry Raymond Russo told him.
THE COURT: The Jury is out so we are not commenting on the testimony.
MR. WEGMANN: How can Mr. Sciambra explain errors, omissions, or exceptions unless he says what Mr. Russo told him?
THE COURT: That is exactly what he said.
THE WITNESS: I think I can if given the opportunity.
THE COURT: If it can be done without saying --
MR. WEGMANN: I don't think it is possible. How he could it is beyond me.
THE COURT: This was used extensively to impeach Perry Russo and it seems again only proper for this man to testify as to how the errors got in and it would be difficult to present the same from the -- but I think it ought to be that he be given an opportunity to do so.
MR. ALCOCK: I think there is a parallel as to when the defense calls for a police report from the State as was done in the Sbisa case. In that case they laid a predicate because they wanted the police reports for the primary purpose of impeaching the witness.
As you recall in the Sbisa case, Bentley Byrnes was the attorney and he called for the police report which was frought with hearsay as to what other people said and the whole report went in. Sometimes they would like to get the report from the District Attorney and only use that paragraph that is favorable but when the whole report is hearsay I don't think it should be permitted to be read to the Jury but that is exactly what happened.
Then he started to interview him, you joined in and made it State and Defense 20 and you read it to the Jury and you mean to tell me that it is not hearsay what he told people and what people told him. On its face isn't it frought with hearsay?
MR. WILLIAM WEGMANN: Your analysis as in the Sbisa case, the record was read -- I believe it is almost impossible for him to do what the Court suggests.
THE COURT: I agree but he says he thinks he can go through the memorandum and give a reason why the errors were included in the memorandum.
MR. DYMOND: As far as this Sciambra report or not being frought with hearsay I think Your Honor is overlooking the fact that when it was introduced the person that was giving this information was on the witness stand and therefore it was not hearsay there.
THE COURT: But it had what Mr. Sciambra said and not only what Russo said.
MR. WILLIAM WEGMANN: Your Honor, if the State feels it can go ahead without using hearsay, without relating what Perry Russo said -- I will ask the witness to refrain from that, and we have no objections.
THE COURT: Nowhere in criminal cases can a witness use his own statement to bolster his testimony which is the best evidence as to what he orally says and not what is written down.
(JURY RETURNED INTO OPEN COURT.)