. . . . Pursuant to the recess, the Proceedings herein were resumed at 1:35 o'clock p.m., appearances being the same as heretofore noted in the record . . . .
THE COURT: Are the State and the Defense ready to proceed?
MR. DYMOND: We are ready.
MR. ALCOCK: Yes, Your Honor.
THE COURT: Let me remind the witness that the oath that he previously took is still binding.
THE WITNESS: Thank you, Judge.
THE COURT: All right, Mr. Alcock. I believe you have the witness.
DEAN ANDREWS, having been sworn and having testified previously, resumed the stand for a continuation of the CROSS-EXAMINATION BY MR. ALCOCK:
Q: Now, Mr. Andrews, referring to this man that you met as Clay Bertrand in the '50's,
after this first meeting did you have occasion to see him fairly often?
A: Decline to answer that question on the ground that it may, might, could, would or will tend to link me with a chain of circumstances that would incriminate me. I have three specific articles that are substantive, of the Louisiana Criminal Code in mind, either Article 123, 124 or 125.
MR. ALCOCK: Those are the perjury articles, Your Honor. I would suggest to the Court that this witness has already indicated he did. I am just trying to clarify in order to enter my line of questioning in connection with his testimony before the Warren Commission under oath.
THE COURT: I am going to sustain the witness' objection.
MR. ALCOCK: Thank you, Your Honor.
BY MR. ALCOCK:
Q: Subsequent to this meeting at the wedding reception, and prior to the phone call on
November 23, had you had any phone calls from this man you identify as Clay Bertrand?
A: Respectfully decline to answer that question and invoke the Fifth Amendment, for the reason that an answer may, might, would or could tend to link me up with a chain of circumstances that would incriminate me. I have three specific articles of the Louisiana Substantive Code of Criminal Procedure in mind, Articles 123, 124 and 125.
THE COURT: I will sustain the witness' objection.
MR. ALCOCK: Your Honor, the witness has already indicated he received at least one phone call from him, and that is a rather critical phone call. Now the State is estopped from asking whether he received any other phone calls?
THE COURT: I have to rule on the situation as it presents itself, I cannot comment on why he did or did not answer that question, but if he invokes it I will have to rule on it as of the moment it is presented to me.
MR. DYMOND: Your Honor, in the interest of conservation of time, could we ask Mr. Andrews, when he is declining to answer a question, just to say on the same grounds?
THE WITNESS: I would prefer to repeat it, under some jurisprudence, Your Honor, to make sure there is no confusion.
MR. DYMOND: Very well.
THE COURT: One correction. I thought maybe I would call it to your attention. You keep saying the Code of Criminal Procedure. It is in the Criminal Code --
THE WITNESS: The substantive law.
THE COURT: -- not the Code of Criminal Procedure. I would like that correction made.
THE WITNESS: The three articles referred to --
THE COURT: Are found --
THE WITNESS: In the Criminal Code.
THE COURT: Not in the Code of Criminal Procedure.
THE WITNESS: Right. Thank you.
BY MR. ALCOCK:
Q: Now, Mr. Andrews, when you appeared before the Warren Commission, did you tell
Mr. Liebeler, the Commission Counsel who was questioning you, that you met this Clay Bertrand on a prior occasion?
A: Respectfully decline to answer that question for the reason that an answer thereto may, might, could or would tend to link me up with a chain or link or circumstances that would ultimately result in me being indicted, or be to my disadvantage in an open case. I have three specific articles in mind, Articles 123, 124 and 125.
MR. ALCOCK: Your Honor, I am asking him about a statement that he made under oath before the Warren Commission, and I intend to impeach him on this statement.
THE COURT: Yes. I just want to check the article. I anticipated this.
THE WITNESS: Article 124, Your Honor.
THE COURT: Take this down, Madam Reporter. The article in the Code of Procedure, in the written code which I refer to -- it is still the same law -- reads:
"Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible."
Now, that is the ordinary situation but in this particular case, Mr. Alcock, as I view the law, you can ask the witness if he did or did not make such a statement and read from the record if you wish. He may admit or deny or make whatever objection he does.
MR. ALCOCK: All right, Your Honor.
THE COURT: That is the only way I see we can do it.
MR. ALCOCK: Perhaps I can assist Mr. Andrews. I am referring to page 331 of the document I believe you have in your hand now.
THE WITNESS: I have page 31.
MR. ALCOCK: All right.
BY MR. ALCOCK:
Q: I am referring to a question propounded to you by Mr. Liebeler, which on that page would be the next to last question propounded by Mr. Liebeler, and it reads:
"Question: Now what can you tell us about this Clay Bertrand? You met him prior to that time?"
Your answer being: "I had seen Clay Bertrand once some time ago, probably a couple of years. He's the one who calls in behalf of gay kids normally, either to obtain bond or parole for them. I would assume that he was the one that originally sent Oswald and the gay kids, these Mexicans, to the office, because I had never seen those people before at all. They were just walk-ins."
Now, did you make that statement?
MR. DYMOND: If the Court please, object on the ground that time, place and circum- stances have not been furnished to the witness.
MR. ALCOCK: There couldn't be any more furnished than him having the question right in front of him.
MR. DYMOND: The Code article specifically says time, place and circumstances must be furnished. Your Honor just read the article.
THE COURT: Well, I think, Mr. Alcock, although it might ordinarily appear, would you state the time, place and circumstances.
MR. ALCOCK: I will do that.
BY MR. ALCOCK:
Q: Do you recall having testified before Mr. Liebeler, who was a Commission attorney
for the President's Commission on the assassination of President Kennedy, on July 21, 1964 at the old Civil Courts Building, Royal and Conti Streets in the City of New Orleans?
A: I appeared before Mr. Liebeler.
Q: On that date?
A: On that date at that time.
Q: In that building?
A: In that place.
Q: Now, did you make this statement?
A: I have no memory refreshed after reading this. However, this statement is here, I must assume that I made it.
Q: Now, the statement said that you had seen Clay Bertrand two years prior. Is that correct?
A: If the statement says it, I said it.
Q: In fact, hadn't you seen this man you identify as Clay Bertrand rather regularly between the time you first met him and the time you testified before the Warren Commission as attorney?
A: No.
Q: You did not see him rather regularly?
A: (Conference between witness and his counsel.) Respectfully decline to answer this question for the reasons that this is getting into a matter that may, might, could or would tend to incriminate me. I have three specific articles in mind, Articles 123, 124 and 125, in the case pending in open against me now.
MR. ALCOCK: Your Honor, I don't see how I can very well impeach this witness unless I can ask him some questions as to the statement he gave under oath before the Warren Commission.
THE COURT: Well, as I understand the law, this witness is not an ordinary witness in the true sense of the word. If he were you might be able to proceed forward, but he is in the peculiar status of a witness defending in a pending criminal proceeding. For that reason it makes it an unusual legal situation. The article under 493 says: "If the contradictory statement is in writing, the proper foundation is in the production of the writing itself."
Now, you have produced the writing.
MR. ALCOCK: Yes, I have.
THE COURT: Would you read back that last question that the witness refuses to reply to?
(Whereupon, the pending question was read back by the Reporter.
THE COURT: Well, the question that you put, Mr. Alcock, is not from the writing, that is from your own origination. Right?
MR. ALCOCK: That is right.
THE COURT: I sustain this objection.
MR. ALCOCK: Your Honor, may I have the Jury removed to argue this point?
THE COURT: Certainly. Take the Jury in my office, please. I will be glad to hear from you.