The Clay Shaw trial testimony of Dean Andrews, continued
MR. ALCOCK: First of all, I am asking him for a physical description of the human being, and certainly the attorney-client privilege is not, does not, is not that broad and would not cover that subject area. Now, as far as the Fifth Amendment is concerned, Your Honor, I think the State has a right to show the Jury, since this witness has volunteered that he received a phone call, that the party on the other end of the line was not the Defendant, to his knowledge, that he has never met the Defendant to his knowledge, Clay Bertrand is not the Defendant, the State has every right in the world to show the prior conflicting statements by this witness on other occasions both under oath and not under oath concerning the subject matter so as the Jury can see and test his credibility and what weight they will give his testimony. The State is being handcuffed, Your Honor, the Defense has what they feel they want from him, and now the State cannot show the Jury how the man vacillated back and forth on description, naming individuals --
THE COURT: Article 4, Section 5, which deals with the privilege between attorneys and clients states: "No legal advisor is permitted, whether during or after the termination of such employment, unless with his client's expressed consent, is permitted to disclose any communication made to him as such legal advisor by or on behalf of his client or any advice given by him to his client or any information that he may have gotten by reason of being such legal advisor," and aside from that point, he claimed the second privilege, and that is by you forcing him to identify the person who called him or to give a physical description of him, he claims that is a link of circumstances that may or may not be used in a pending criminal prosecution which is pending against him.
How many counts of perjury against you, Mr. Andrews?
THE WITNESS: Seven counts.
THE COURT: Seven counts?
THE WITNESS: Right.
THE COURT: And you feel after conferring with your attorney that to give the answer to it would in some way relate to one of the seven counts?
THE WITNESS: Three, Count 1, Count 2, Count 4.
THE COURT: What section of the Criminal Court is this in?
MR. ALCOCK: I think it is probably Section D or G.
THE COURT: I want the open case and the case on appeal immediately.
MR. ALCOCK: May I respond just briefly, Your Honor. I am asking about a physical description. Now, this witness says on the witness stand the voice on the phone was not the Defendant, ans certainly we have the physical proportions of the Defendant, and the State has ever right in the world to show whether or not this man he claims he got the telephone call from had the same physical proportions as the Defendant. I think when he said positively from the witness stand that the Defendant was not the man who called him, he waived his rights to this area and the State has every right to go in and impeach this witness in his many contradictory statements in connection with his testimony, and as far as the attorney-client privilege is concerned, if he could give us the name of his client, his client might waiver that privilege. We have to know the name of the client in order to ascertain whether or not the client wants to waive the privilege. If we can have the name of the client -- He can't just take the attorney- client privilege without informing us as to the client's name. If he tells us the name of the client, we will ask the client whether he will waive the privilege.
MR. BARRY: May it please the Court, the State has contended it is being handcuffed. It appears that this witness is being asked to incriminate himself. Your Honor will see from the Bill of Information, when it comes down here, it is directly incriminating, an answer would be directly incriminating as to at least one of these counts. I am sure Your Honor will agree when he sees the Bill of Information.
THE COURT: I have sent for both records, yes.
MR. ALCOCK: It is my appreciation of the Fifth Amendment that once you do open the door or answer any question that might be linked to that chain, you have waived your right, and when he comes into the courtroom and says the caller is not the Defendant and then the Defendant is not Clay Bertrand, I think he waived all rights in this area and the State has a right to fully explore the whole area to give the Jury an inclination of just, as to just how reliable this man's testimony is.
THE COURT: Article 6 of the Red Code, a case in one of the footnotes, 15 La. Annotated, 330, it may or may not relate very vitally to this point, it says: "A lawyer may be asked through whose agency he was employed and who is his client," I think that is the legal point involved, and if he may be asked that without a violation of his privilege, then we get into the secondary of whether or not because there is a pending criminal prosecution against him, whether or not it would incriminate him so we get it two-pronged, one is lawyer-client, the other is self-incrimination. I think we would have to get these records first to see whether or not the self-incrimination feature is existing, and if it does, we need not fool with the lawyer-client proposition. I think that can be overcome.
MR. ALCOCK: I think Your Honor the Court is well -- perhaps not well aware, that perjury convictions all deal with Clay Bertrand. Now, once he says he is not Clay Bertrand, he opened the door, because the State has a right to know who in his estimation Clay Bertrand is.
THE COURT: (Reading from the Bill of Information.) This is not seven counts, it is just one count. It is not seven counts in this.
MR. ALCOCK: The case before the Supreme Court was a multiple-count case, but the pending case is only one count.
THE COURT: Looking at the open cases, seven open counts, it's only one count.
MR. ALCOCK: He was found not guilty of some of those counts.
THE COURT: Five counts in the other. This is the case on appeal, is it not? There is five counts on the case on appeal, there is one count, but it is a transcript of the Grand Jury testimony. May I just take a look at it and see?
I'm going to read the Bill of Information so we will have it in the record.
(Whereupon, it was read into the record.)
THE COURT: Now, to bring us back into focus, Mr. Alcock, as I understand it, Mr. Andrews has been indicted, this is not an indictment, this is a direct bill of information, it is not a Grand Jury indictment.
MR. ALCOCK: Your Honor, he was indicted by the Orleans [sic] on the whole issue of Clay Bertrand and when he comes before this Court and makes a flat statement that the Defendant is not Clay Bertrand, and then we have no right to show the many inconsistent statements this man said relative to the identity of Clay Bertrand, this is to tell the State, well, the Defense can have what they want but you can't impeach the witness.
THE COURT: I am not trying a perjury case against Mr. Andrews.
MR. ALCOCK: The State has the right to cross-examine the witness. When he makes a statement relative to Clay Bertrand and positively says the Defendant is not Clay Bertrand, the State has a right to expose the fact that he made many, many inconsistent statements and originally took the position that he could not say that the Defendant was or was not Clay Bertrand, and to deny this right to the State, the Jury would have before it just his statement that he claims taking the privilege, and the State has a right to give the Jury a full background on statements he made relative to his man, and we cannot therefore adequately and properly weight his testimony. The State has a right to impeach this man, and I inform the Court I was going into these cases --
THE COURT: You have a right to attack his credibility, you have a right to attack him on prior contradictory statements, and you certainly have the right to ask the witness at a previous time did he not state such and such, whatever you wish to ask him, and as far as making him admit who that person was that he spoke to, at this time you are bringing up the guilt or innocence of a case that is pending against him, and I will not force him to give you his answer. That does not stop you from laying a prejudice or foundation for impeachment. You certainly can go into that field of inquiry on cross-examination.
MR. ALCOCK: The question that precipitated the whole discussion is what was the size, physical size of Clay Bertrand. Now, this he took an exception to, and this is what we are arguing about now. The State's position is, if he could give us the size, the State will show prior inconsistent statements, all the way from 5'8 to 6'2.
THE COURT: I'm not going to force Mr. Andrews to give you the size, because that is like giving you half his name, maybe giving you the last half without the first. I will not force him to give you the size of this person because I feel I certainly would be getting into a legal area which certainly could be used against him in these criminal proceedings, and by him being under oath today, this testimony could be used against him.
MR. ALCOCK: But you realize that when he took the witness stand and said that the Defendant was not Clay Bertrand --
THE COURT: It is very close to a judicial confession that you are asking Mr. Andrews to make while he is before me as a witness and I can't force him to make a judicial confession on this case which is pending against him. I will not stop you or deny you the right to lay a predicate to attack the credibility of the witness to show prior contradictory statements which you may pursue, but I will not force him to reveal the measurements of the person who called him, not the client, the lawyer-client relationship, that was the only point I would force him to tell you the name of the client, that it is on the grounds of incrimination under the Federal and State constitutional rights, and for that reason I will not force him to give you the measurements of the person he says called him, but you can pursue on cross-examination if you wish to attack the credibility and it does not stop you from making a deduction and arguing it to the Jury whether or not the witness is or is not worthy of belief. That would be a deduction for you to make in your argument.
MR. ALCOCK: I agree with the Court if I am given a sufficient range of development I will certainly argue it to the Jury.
THE COURT: I will have to pass on it as it comes up. I am not stopping you from your examination of him. Bring the Jury back in.
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