Arguments for and against a directed verdict
in the trial of Clay Shaw, continued



MR. ALCOCK: May it please the Court, in answer to Mr. Dymond's argument, I would first call the Court's attention to the fact that the State feels that the Court has already, at least if not directly, indirectly and inferentially ruled on this matter, because the Court has already held that conversations which transpired outside the presence of the Defendant after the meeting on Louisiana Parkway were admissible, and the only reason that they could be admissible would be that this Court had found as a matter of law that the State had proven the case prima faciely, and I am sure the Court recalls that it did allow these conversations subsequent to this meeting on Louisiana Avenue Parkway, so I feel that the Court has already ruled on this matter. Howevr, I would like to address myself briefly to some of the arguments of Defense Counsel. There is no doubt, and certainly the State has no argument with the fact that it must show this agreement or combination. This is the very essence of the crime of conspiracy.

However, the Court also knows that the crime of conspiracy is somewhat complicated and certainly very broad, very, very broad. The Court can recall during voir dire examination many times jurors, prospective jurors and perhaps jurors sitting on this panel today, became confused in the explanation of the crime of conspiracy, and Mr. Dymond is quite right when he suggests that the State would come before this Court and argue that Perry Raymond Russo, Number One, is not a lawyer, Number Two, certainly is in no position to determine the proper definition, the legal definition, of a conspiratorial meeting or a conspiratorial agreement. What words Perry Russo puts on the conversation are, as far as this motion is concerned, irrelevant. They may not be irrelevant to the Jury, the ultimate of tryer of fact in this case, because certainly the Jury can consider Perry Raymond Russo's appreciation of the gravity of the conversation, but at this particular time as a matter of law the Court must decide whether or not a prima facie case hadn't been made out. I feel, as I suggested at the outset, the Court has already made this decision.

There is only one thing wrong with Mr. Dymond's argument about this conversation being a bull session: He seems to overlook the fact that one of the parties in this conversation which he has termed a bull session, which admittedly the State's witness termed a bull session, was Lee Harvey Oswald, who was present, by the testimony of the State's witnesses, in the Texas School Book Depository shortly before or certainly on the same morning that the President of the United States was gunned down in Texas. Additionally, the trip to the West Coast in and of itself, as I explained to the Jury, is an innocuous thing. The physical transportation to the West Coast in and of itself is innocent. However, recalling the testimony, the undisputed testimony, of Perry Russo that the Defendant said he would be on the Coast and in the public eye at this time in order to establish an alibi, raises this trip to a much more serious level. Again, it corroborates Perry Russo's recall on the agreement or combination or the words spoken between the alleged conspirators. In addition to that, the trip of David Ferrie again establishes and corroborates what was said during the course of this conspiratorial meeting. The Court well knows that Perry Russo's personal appreciation of what transpired at that meeting or what was the ultimate or serious intent of the alleged persons who were conspiring, is not material at this point. As pointed out, it may be material later on. Again, we are talking about -- and Mr. Dymond brought this out -- a meeting of the minds. Now, a meeting of the minds can be demonstrated in many ways, not just verbally. A meeting of the minds can be demonstrated in the physical action of the persons who allegedly had the meeting of the minds.

Additionally, I call to the Court's attention -- and I believe I am correct, and I am sure the Court will recall -- that Perry Russo under cross-examination testified that he was not there the entire time that this conversation was taking place between Lee Harvey Oswald, the Defendant, and David Ferrie. He did report to this Court those elements that he did hear, and those elements were confirmed when Lee Harvey Oswald was found at the scene of the killing of the President of the United States, and the two trips taken in complete accord with the agreement or combination reached in David Ferrie's apartment. The only evidence we have to the overt acts as to the conversation again is Perry Raymond Russo. Again he has not been destroyed as Mr. Dymond announced he would do in his opening statement. He cross-examined him for a day and a half and now wants the Court to believe Perry Raymond Russo, because Perry Raymond Russo characterized this conversation as a bull session. On one hand, he wants you to believe him because he characterized it as a bull session; on the other hand he wants you to disbelieve it because the State has alleged that this conversation or part of this conversation or the refining of a plan were also overt acts in the commission of this crime. The State simply feels, Your Honor, that it has proven prima faciely its case and feels that the Court has already ruled on this motion in its ruling on an evidentiary matter earlier in this case, and respectfully asks the Court to deny this motion for a directed verdict and allow the case to go to the Jury, the tryer of fact, and let them put their stamp, let them put their appreciation on the nature of this conversation and the evidence that has been adduced during the State's case. Thank you.

MR. DYMOND: If the Court please, Mr. Alcock has stated that I have asked you to believe Perry Raymond Russo. In one respect that may be so, but let me state that if you do not believe Perry Raymond Russo, there is no question but that the entire case falls. Secondly, we might touch upon the credibility of Perry Raymond Russo, we might ask Your Honor to remember his having admitted not on one but more than one occasion subsequent to his having made his report to the District Attorney's office, that he was not sure at all whether Clay Shaw attended this meeting. We might also point out to the Court the Defense contention, which I feel at this point has been very well established, that in Baton Rouge when Russo first spoke with Mr. Sciambra, before he had an opportunity to speak with representatives of the State, to by their very questions know what they wanted, to read the newspapers in connection with this matter, made no mention whatsoever of any alleged conspiratorial meeting.

I would like to get on now, Your Honor, to the remark by the State that the very significant thing as to the seriousness of the meeting on Louisiana Avenue Parkway, if one did take place, is that Lee Harvey Oswald happened to be working right in Dealey Plaza on Elm Street when the assassination parade (sic) went by. In that connection I would like to respectfully refer Your Honor to the testimony of a State witness, once again a person whose credibility is vouched for by the State, that is, the young man who was a co-worker of Lee Harvey Oswald in the Texas School Book Depository, the young man who rode him back and forth on weekends between Dallas and Irving, Texas. If Your Honor will recall, this witness testified that the Texas School Book Depository Company had two warehouses, one on Elm Street and the other one some two and a half blocks away not fronting on Elm Street, and that when Lee Harvey Oswald got his job at the Depository, which was well in advance of the planning of the trip to Dallas and the parade route, that it was by pure chance that Lee Harvey Oswald was assigned to the Depository fronting on Elm Street rather than the other Depository building. We submit, Your Honor, that this casts an entirely different light on just how much the presence of Lee Harvey Oswald in a job on Elm Street adds to the seriousness of the alleged meeting on Louisiana Avenue Parkway. Now, if the Court please, the State has attempted to make capital of that portion of Russo's testimony which for the first time enlightened us as to the fact that he had been in and out of the apartment there on Louisiana Avenue Parkway during the time that these people were allegedly present. In this connection we merely submit to the Court that no one, Your Honor, no jury, no one can presume that something took place in that meeting while Russo was not there, in the absence of any testimony as to something having taken place, and that is really what the State is asking you to do in that connection.

So, Your Honor, once again we urge that the case has not been made out here, a prima facie case has not been proven. The elements of the crime are lacking, and if there is any doubt in the Court's mind, we respectfully request that Your Honor take this under advisement, study the alleged overt acts, study the indictment, and we feel certain that Your Honor will conclude that a case has not been proven.

MR. ALCOCK: Your Honor, I would just like to briefly --

THE COURT: I will be glad to hear you.

MR. ALCOCK: -- reply on one point where I feel Mr. Dymond has gone completely outside of the record. There is no testimony whatsoever to substantiate his position, and that is, that Lee Harvey Oswald's position in the warehouse that was positioned at the intersection of Elm and Houston Streets in the city of Dallas, Texas, was by mere chance. Mr. Frazier testified that he was assigned to their; he did not testify that he was present when Lee Harvey Oswald was given his job. Mr. Truly did not testify, and I think it was his testimony that it was from Mr. Truly that he got his job, and by inference we may assume that Lee Harvey Oswald got his job from Mr. Truly. I feel that Defense Counsel in this matter has gone completely outside the record. There is absolutely no evidence to show it was by happenstance or accident that Lee Harvey Oswald was assigned to this warehouse rather than the one two blocks down. I just call that to the Court's attention, and I feel that rather than belaboring the individual points and my appreciation of the testimony and Mr. Dymond's appreciation, again I recall to the Court that the State feels that the Court has already ruled on this matter by its ruling on the evidence adduced subsequent to this meeting, and ask that this Court deny this motion.

MR. DYMOND: Your Honor, briefly, I don't pretend to be infallible in recalling what was testified to on that point, and I am sure Mr. Alcock doesn't either, and we will in that connection ask that in taking this matter under advisement Your Honor ask the court reporter specifically what was asked of this witness at that time and what the answer is.

THE COURT: I made voluminous notes, I have three notebooks that I filled up myself. Mr. Sullivan, get me the Shaw files, and I am going to take a recess until quarter to eleven. Bring those files to my office, and I would like to see the court reporter in my office.

I will recess until quarter to eleven.

(Whereupon, a brief recess was taken.)


THE COURT: I have had conference in my chambers with the State and Defense Counsel, and because I am going to excuse the Jury the rest of the day in order to facilitate Counsel in lining up their witnesses -- as they have stated, the State and the Defense have a logistics problem of getting people here from out of the city and out of the state, so I was going to grant that request even before the motion for a directed verdict came up. Since the Jury will be excused the rest of the day, I am going to use the intervening time to read the entire testimony of Perry Raymond Russo. I have been supplied by Defense Counsel with a verbatim transcript of Perry Raymond Russo's testimony of the first day, which I have in my possession at this time, and Mrs. Dietrich and her firm will give me this afternoon, late this afternoon, the remaining portion of Mr. Perry Raymond Russo's verbatim testimony. I intend to read both transcripts, or the entire Perry Raymond Russo testimony, and I will then make my decision tomorrow morning at 9:00 o'clock on the motion for a directed verdict. I just wanted that to go into the record. Now we are going to bring the Jury down, please.

(Whereupon, the Jury returned to the courtroom.)

THE COURT: Gentlemen of the Jury, before we started to take testimony in the case, I was requested by both the State and the Defense, because of the problem of securing witnesses from out of the city and out of the state, understanding the expense of putting them up at hotels and what-have-you, they do need time to align their witnesses to get them here from wherever they are, so I did it for the State in the beginning upon their request, and I am going to do it for the Defense upon their request. So we are going to recess the trial at this moment until tomorrow morning at 9:00 o'clock.

Again, as I have so many times, I admonish you not to discuss the case amongst yourselves or with any other person until such time as it is given to you for your verdict.

(Jury excused.)

THE COURT: Mr. Shaw, you are released under your same bond, sir. We stand adjourned until tomorrow morning at 9:00 a.m.

. . . . Thereupon, at 11:30 o'clock a.m., the proceedings herein were adjourned to 9:00 o'clock a.m. on Friday, February 21, 1969 . . . .



1426 (30)

February 21, 1969



. . . . Pursuant to the adjournment, the proceedings herein were resumed at 9:05 o'clock a.m. on Friday, February 21, 1969 . . . .

THE COURT: I am going to make a ruling out of the presence of the Jury. I think my ruling should be made out of the presence of the Jury. Now, let me make one preliminary statement. Mr. Reed asked me no matter what my decision was would I take a five-minute recess afterwards. So that we won't have a mad rush for the door, I will grant that recess. The motion for a directed verdict is denied.

I will take a five-minute recess.

(Whereupon, a brief recess was taken.)


THE COURT: I don't know whether you wish to reserve a bill, Mr. Dymond. If you do, it should be in the presence of the Jury.

MR. DYMOND: I would like to do it in detail and then renew it when they come in.

THE COURT: All right.

MR. DYMOND: The Defense would like to lodge a formal objection and reserve a bill of exception to the ruling of the Trial Court in overruling the motion for a directed verdict which was filed at the close of the State's case, making parts thereof the entire record and all the testimony up to the time of the filing of the motion, together ruling said motion, all parts of the bill.

THE COURT: All right. Bring in the Jury.

(Jury returned to the box.)

THE COURT: Are the State and the Defense ready to proceed?

MR. DYMOND: We are ready.

MR. ALCOCK: The State is ready.

THE COURT: I think the first thing you want to do is renew your objection.

MR. DYMOND: If the Court please, at this time in the presence of the Jury I would like to reserve a bill of exception to the ruling of the Trial Court in overruling the motion filed yesterday by the Defense, making parts of the bill, the motion itself, the entire record and testimony up until this time, and the ruling of the Court, parts of the bill.

THE COURTS: Very well. The State has rested and the Defense may proceed with its case.

MR. DYMOND: Will you please call Mrs. Marina Oswald Porter.


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