CRIMINAL COURT FOR THE PARISH OF ORLEANS
STATE OF LOUISIANA
NO. M-703
CLAY L. SHAW, ARRESTEE
PART 3 - PAGES 314-491
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Transcript of proceedings had in connection with Preliminary Hearing in the above numbered and entitled cause taken on March 14th, March 15th, March 16th and March 17th, 1967.
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HONORABLE BERNARD J. BAGERT
HONORABLE MALCOLM V. O'HARA
HONORABLE MATTHEW S. BRANIFF
JUDGES PRESIDING
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APPEARANCES:
JIM GARRISON, ESQ.
[CHARLES WARD, ESQ.]
ALVIN V. OSER, ESQ.
JAMES L. ALCOCK, ESQ.
MICHAEL L. KARMAZIN, ESQ
REPRESENTING THE STATE OF LOUISIANA.
F. IRVIN DYMOND
WILLIAM J. WEGMANN, ESQ.
EDWARD F. WEGMANN, ESQ.
REPRESENTING CLAY L. SHAW, ARRESTEE.
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REPORTED BY:
JULIAN J. LEVEY, Official Court Reporter
PATRICIA CHAMPAGNE, Official Court Reporter
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CERTIFICATION
We, JULIAN L. LEVEY and PATRICIA CHAMPAGNE, do hereby certify that the following transcript of testimony is a true and correct copy of our shorthand notes taken in the Preliminary Hearing in the matter of Clay L. Shaw, Arrestee, held on March 14th, March 15th, March 16th and March 17th, 1967.
We do further certify that we are not of counsel, not related to counsel or the parties thereto, and not in anywise interested in the event of this cause.
[unsigned?]
__________________________
JULIAN L. LEVEY, Official Court Reporter, Section "A"
[unsigned?]
__________________________
PATRICIA CHAMPAGNE, Official Court Reporter, Section "H"
[Thursday, March 16, 1967, PM session]
BY MR. DYMOND:
The Defense at this time would like to file a Writ of Subpoena Duces Tecum on the Department of Immigration and Naturalization in the Federal Building at 701 Loyola Avenue.
BY JUDGE BAGERT:
Let it be filed. When is it returnable? Instanter?
BY MR. DYMOND:
Yes, Your Honor.
DR. NICHOLAS J. CHETTA, a witness for the State, after being duly sworn, testified as follows:
* * * DIRECT EXAMINATION * * *
BY MR. OSER:
Q. State your name, Doctor, please.
A. I am Dr. Nicholas J. Chetta.
Q. And what is your professions?
A. I am a medical physician and also Coroner for the Parish of Orleans.
Q. How long, Doctor, have you held your medical degree?
A. Since 1941.
Q. And how long have you been Coroner for Orleans Parish?
A. Since May of 1950.
Q. Doctor, what college degrees or academic degrees do you hold other than your medical degree?
A. I have just a medical degree.
BY MR. DYMOND:
What are you attempting to qualify him in?
BY JUDGE BAGERT:
What's that?
BY MR. OSER:
Your Honor, Mr. Dymond has asked the State and I was informing him what I was going to qualify the doctor, in what fields.
BY JUDGE BAGERT:
Proceed. Let's get everything in the record. We've gone all this long.
BY MR. OSER:
Q. Tell us, Doctor, what degree you hold other than your medical degree.
A. My MD, that's it.
Q. And from what university did you receive this?
A. LSU, Louisiana State University Medical School.
BY MR. OSER:
Your Honor, the State is going to attempt to qualify Dr. Chetta as an expert in the field of medicine, and also as an expert in the field of psychiatry, and also an expert in the field of forensic medicine.
BY JUDGE BAGERT:
Proceed.
EXAMINATION BY MR. OSER:
Q. Dr. Chetta, have you ever been qualified as an expert in the field of medicine in the Criminal District Court for the Parish of Orleans?
A. Yes, sir.
Q. On how many occasions, Doctor?
A. On numerous occasions.
Q. Have you ever been qualified in the field of medicine in other courts, other than the Criminal District Court for the Parish of Orleans?
A. Yes, sir, in the Civil Court, as well as in the Federal Court.
Q. Have you ever been qualified as an expert in the field of psychiatry?
A. Yes, sir.
Q. Have you ever been so qualified in the Criminal District Court for the Parish of Orleans?
A. Yes, sir.
Q. Are there any other courts that you have been so qualified?
A. Civil Court.
Q. In the field of medicine, Doctor, approximately how many cases are handled by your office in a year, in the Coroner's Office?
A. All told, or the total number of cases run close to around five thousand.
Q. And you have been Coroner for Orleans Parish for going on seventeen years, is that correct?
A. That's correct, sir, yes, sir.
Q. In the area of psychiatry, Doctor, what duties as Coroner for the Parish of Orleans do you perform in conjunction with the area of psychiatry?
A. The duty I perform as Coroner in the area of psychiatry is that I am appointed by the courts, the Criminal Court, as a member of the Lunacy Commissions, also, many times the various Criminal Court judges will ask that we make preliminary examinations in the field of psychiatry, and on other occasions I have been asked by the District Attorney's office to examine someone; many times defense attorneys have used me as an expert in the field of psychiatry.
Q. Do your duties also entail testifying in Civil District Court for civil commitments, as it is called in the area of psychiatry?
A. Yes.
Q. Approximately, Doctor, how many times a year do you testify in courts in the area of psychiatry?
A. I think it would be easier if we broke it down and say on the average of six or seven times a month, and it would average out over all of these years to several thousand cases, I am sure.
Q. Do you belong to any specific organizations, Doctor?
A. Civic organizations?
Q. No. Any specific organizations in the area of medicine and psychiatry.
A. Yes, sir. I belong to the American Medical Association; belong to the Orleans Parish Medical Association, of which I am an officer; I belong to the Louisiana State Medical Society, which I am first vice president. I belong to the International College of Surgeons; I belong to the Graduate Medical Assembly. I belong to the American Academy of Forensic Science. I belong to the National Coroner's Association, of which I am a past president. Also had teaching assignments at LSU Medical School, Tulane Medical School, and have been, on occasion, guest lecturer at Tulane Law School; I have taught in the School of Nursing at Mercy Hospital, and there are some others, but I think that should cover the field.
Q. Doctor, what is known as forensic medicine?
A. In lay language, it means legal medicine or anything in medicine that has to pertain to cases that will eventually reach court. I think this would be a rather simple, legal explanation.
Q. I know this is a very broad type question, Doctor. Can you tell the Court what experience that you have had in your seventeen years as Coroner in the area of forensic medicine? What has been your varied experiences [sic] in this field?
A. In testifying in Court.
Q. And examinations or duties that you perform.
A. Oh, well, the State of Louisiana is rather unique when it comes to forensic medicine. First of all, I may say that I helped prepare the laws for the Coroners' Association, which were then adopted by the Legislature in 1950. You have to have a medical degree to be a Coroner in the State of Louisiana, and then the other uniqueness of our system is that the Coroner is responsible for committing people into the State institutions. All people who are seeking entrance into a State mental institution have to go through the Coroner's Office. This included Coroner's commitments, civil commitments and judicial commitments and, naturally, also, the Criminal Courts with the lunacy hearings. The other phase of the Coroner's Office is that we examine all subjects that have to do with sex crimes, rape in its various degrees, incest and any other form of sex perverted crimes. The next phase of the Coroner's Office is, naturally, the one that is most popularly known to the public, that of finding out and establishing the cause of death in all violent deaths, such as homicides, suicides, and accidental deaths, also a natural death where there is a lack of proper diagnosis, even though there are no suspicious circumstances, and also deaths that occur within forty-eight hours without the presence of a physician, or patients who have been admitted into a hospital and die within twenty-four hours.
Q. Now, Doctor, in the performance of your duties as Coroner in the area of forensic medicine, does your office have what is commonly known as a crime lab, or any criminalists assigned to your office?
A. Yes, sir. It was back in about 1958 or 1960 that I felt that the City of New Orleans this size needed a crime lab. So, we discussed this with the necessary officials, with the help of the council, the district attorney and also the Police Department, we established a crime lab. Now, we do all the crime work from a laboratory point of view in our office.
Q. Doctor, all this work that you have talked about that passes through the crime lab, does this not ultimately pass on your desk, and you pass on the results of this work and review this work and are familiar with the type of work that is done in these numerous cases?
A. Yes, sir.
Q. Tender the doctor on his qualifications.
BY MR. WEGMANN:
Q. Doctor, do you have any formal training in the field of psychiatry?
A. No, sir, I do not have any boards, if that's what you mean. No, sir. But I have had several post-graduate courses that do not lead to any specialty, no, sir.
Q. You have no boards, is that correct?
A. That's correct, sir.
Q. And you have no boards in the field of forensic medicine?
A. Yes, sir, I am a fellow in the American Academy of Forensic Science.
Q. And what was necessary for you to get to be a fellow?
A. To be a fellow you have to withstand a rigorous examination, you have to be reviewed and previewed, you might say, by the powers that be in the Academy before you are admitted.
Q. And that was a post-graduate course?
A. Yes, sir.
Q. That's all the questions I have.
BY MR. OSER:
Submit the Doctor on his qualifications, Your Honor.
BY MR. WEGMANN:
We submit it.
BY JUDGE BAGERT:
Q. Doctor, since you have been Coroner for the Parish of Orleans, on about how many lunacy commissions have you served?
A. I would say better than three, four hundred of them.
Q. You were with another physician most of the time?
A. Yes, sir, another physician appointed by the Court. Many times I have been on the commission by myself.
BY JUDGE BAGERT:
Any argument? Is the matter submitted?
BY MR. OSER:
The matter is submitted by the State.
BY MR. DYMOND:
Submitted.
BY JUDGE BAGERT:
We find the doctor very amply qualified in his field.
BY MR. OSER:
That's in all three areas, is that correct?
BY JUDGE BAGERT:
Right.
EXAMINATION BY MR. OSER:
Q. Doctor, can you define for me what is meant by narco-analysis?
A. Narco-analysis is a drug-induced state of hypnosis.
Q. This drug-induced state, Doctor, is that also commonly referred to as sodium Pentothal or truth serum? Is that one aspect of it?
A. This drug-induced state is not referred to as sodium Pentothal. Sodium Pentothal is one of the agents. To amplify this for the benefit of the Court, narco-analysis or a drug-induced state of hypnosis means that this person is put in a semi-conscious state in which the individual
[Page 322 is missing.]
[. . .] where, if he was not under the effect of the drug, he would be more apt to withhold things, or, also, he would be more apt to hedge and skirt the edges, if not out and out lie. Now, this is quite true, too, that a person under Pentothal or sodium amytal can lie. But if you are skilled with the use of this particular drug and how to use it for the purposes that we use it in legal medicine, you can pick up the fallacies or fantasies that this individual has. You just cannot take a person, put him on a table, put his arm out and put a needle in and just jup [sic] away. You must, of necessity, start with a known blood pressure of this individual. You must start, with necessity, have some knowledge of his respiratory rate. You also must know of necessity whether this individual has any respiratory diseases, particularly so if they have a severe case of asthma, it is a very dangerous drug; if they have a liver disease, it is a very dangerous drug. All of these factors must be known ahead of time. And, certainly, the person who is administering this drug must know something about the personality of the individual who is being subjected to the drug.
Q. Now, Doctor, do you know an individual by the name of Perry Russo?
A. Yes, sir.
Q. Doctor, did you have occasion to be present at the administration of sodium Pentothal to Perry Russo?
A. Yes, sir.
Q. And when was this, Doctor?
A. This was on February 27th. If I can elaborate a little bit, I would like to.
Q. Please do.
A. I had a phone call from one of the members of the District Attorney's staff, telling me they had a witness . . .
BY MR. DYMOND:
If Your Honors please, we object to this type of hearsay testimony.
BY JUDGE BAGERT:
All right. As a result of the phone call, what happened, Doctor?
A. Your Honor, the thing is simply this, I don't want to give hearsay evidence, but there were certain preparations that had to be made before I could go ahead and do the test.
BY MR. OSER:
The State feels that, as an expert, this witness has the right to give hearsay testimony, especially in the administering of sodium Pentothal, as to how he prepared, if he did prepare this individual for the use of sodium Pentothal. We went into the background of it. The doctor testified before that it's not a mere matter of sticking a needle in a person, in a patient's arm and just start administering [sic] the sodium Pentothal.
BY JUDGE O'HARA:
He didn't get that information from your office; he must have gotten it from the patient.
BY MR. OSER:
He can testify as to the background in this matter.
BY JUDGE O'HARA:
[Line of text missing?]
BY MR. WEGMANN:
Well, we object to it on two grounds, Your Honor. If we make our objection now, I think it might be wise if it's agreeable with the Court.
BY MR. DYMOND:
If the Court please, first of all, there is no exception to the hearsay rule applying to experts. We object on that ground. We further object to any evidence to the effect that this witness either offered to take or did take any test under the effect of sodium Pentothal or any so-called truth-inducing drug. The case upon which we rely in particular is United States vs. Bando.
BY JUDGE O'HARA:
Mr. Dymond, your second objection is premature. There's no testimony from this doctor that he gave anything to anybody.
BY MR. DYMOND:
If Your Honor please, this case even holds that one cannot give testimony as to the person's willingness to take such a test.
BY JUDGE BRANIFF:
Just a moment, Mr. Dymond. You opened the door when you asked the witness on the stand about being hypnotized, did you not?
BY MR. DYMOND:
Surely I asked him whether he had been hypnotized. It certainly has no bearing on a sodium Pentothal test.
BY JUDGE BRANIFF:
Well, that's the state of hypnosis that's induced with this drug.
BY MR. DYMOND:
We were not referring to any sodium Pentothal in all our cross examination.
BY JUDGE BAGERT:
Well, we're going too far afield. Let's take one thing at a time. The objection is to hearsay.
BY MR. OSER:
I'll withdraw the question.
BY JUDGE BAGERT:
All right. We'll cross each bridge as we arrive there. Now, as to the hearsay, the objection is sustained as of this time.
EXAMINATION BY MR. OSER:
Q. Doctor, when did you first meet or see Perry Russo?
A. In my office, February 27th, about 3:30 in the afternoon.
Q. Now, was that your office in the Coroner's Office or your private office?
A. No, sir, my private office, 3524 Bienville Street.
Q. Who was present, Doctor?
A. You were present, Mr. Sciambra, and Perry Russo, plus my office nurse.
Q. Without saying what was said, did you have an occasion at this time to converse with Perry Russo.
A. Yes, sir.
Q. After this conversation with Perry Russo, did you accompany Perry Russo anywhere?
A. Yes, sir.
Q. Where was that, Doctor?
A. I accompanied him over to the Mercy Hospital.
Q. Did you go to any specific part of Mercy Hospital?
A. Yes, sir, the second floor, which is the operative suite.
Q. Did you go into any particular area of this suite?
A. Yes, sir, we went into one of the operating rooms on that suite.
Q. And in this operating room, who was present, Doctor?
A. In that operating room at the time there was Mr. Sciambra; yourself, Mr. Oser; Perry Russo; Dr. Zepernick; Dr. Wall; and Sister Albertine, who is the supervising nun of surgery.
Q. At Mercy Hospital?
A. At Mercy Hospital, yes, sir.
Q. Doctor, the Perry Russo that you are speaking of, is that the same Perry Russo that has been on the stand for the last two days?
A. Yes, sir.
Q. Doctor, am I correct in stating that one of the possible uses of narco-analysis is a psychiatric technique?
A. Yes, sir.
Q. Now, did you have an occasion to examine Perry Russo in this operating suite?
A. Yes, sir.
Q. What type of examination did you perform on him?
A. Took his blood pressure, listened to his heart and lungs, also counted his respiratory rate.
Q. At this time, Doctor, was or was not sodium Pentothal administered to Perry Russo?
BY MR. DYMOND:
We object, if the Court please, on the ground that the willingness or unwillingness of a defendant or witness to take either a lie detector test or any other so-called truth-inducing test is not admissible in evidence, citing for authority United States versus Bando, 244 Federal (2d) 833, certiorari denied by the US Supreme Court in 355 US 844, 78 S. Ct. 67.
BY JUDGE BAGERT:
How about People versus Esposito, 287 New York 389, 39 NE (2d) 925, 1942. This is different from what he's citing. Let me read my case. The reasons given for admitting the testimony is very interesting. The Court upheld the trial court which had admitted the testimony of a psychiatrist, based on the reactions and information received while the defendants were under the influence of the drugs, metrazol and sodium amytal. The defendants had contended they were insane at the time of the offense and at the time of the trial, and were committed to a hospital for examination and observation, where these tests were given. The questions asked were for the sole purpose of determining whether the defendants were capable of understanding the proceedings and making their defense. Now, the question of psychiatry has arisen very extensively in this case.
BY MR. OSER:
Your Honor, it is also the State's position in conjunction with the case just cited by Your Honor, the case of People versus Modesto, which is cited in 382 Pacific (2d) 33, decided by the Supreme Court of the State of California on June 4th, 1963. This also, Your Honor, is concerning the question of a psychiatrist who, in this particular case, and more specifically at 10:25 o'clock AM this morning, Mr. Dymond asked the witness, Perry Russo, whether or not he ever attempted suicide. The Defense brought and interjected into this hearing the question of sanity or insanity of the witness.
BY JUDGE O'HARA:
Mr. Dymond, do you have a copy of that?
BY MR. DYMOND:
We don't have a copy of it.
BY JUDGE BAGERT:
I've got a copy of the Temple Law Quarterly, Volume 35 at Page 401, where the whole subject is discussed at great length.
BY JUDGE O'HARA:
Do you have a citation of a recent case?
BY MR. DYMOND:
Yes, I have the case which we have cited, which is a recent case.
BY JUDGE O'HARA:
Is it in published form?
BY MR. DYMOND:
Yes, it's in published form.
BY JUDGE O'HARA:
I think the DA's Office has those books.
BY MR. OSER:
What's the citation?
BY MR. DYMOND:
The citation is United States versus Bando. Now, the opinion will be in 244 Federal (2d) 833, certiorari was denied, 355 US 844, 78 S. Ct. 67.
BY JUDGE O'HARA:
Would that be just a denial of writs in that last citation?
BY MR. DYMOND:
Yes, that would be the denial of the writs. The actual opinion would appear in Federal (2d).
BY MR. WEGMANN:
There is one case that they would have, Judge, which we rely upon and I read from a note which I have: It is improper for the prosecution to rehabilitate the credibility of a complaining witness, in this case it was the complaining witness . . .
BY JUDGE BAGERT:
That's not the point.
BY JUDGE O'HARA:
Wait a minute.
BY JUDGE BAGERT:
All right.
BY MR. WEGMANN:
By asking him on redirect examination if he had voluntarily submitted to a lie detector test during the investigation of the crime. This is a Florida case.
BY JUDGE O'HARA:
I'm not interested in the Florida or the Pacific. I'm asking about this Supreme Court case in which they denied writs. Do you have the book or don't you?
BY MR. WEGMANN:
No, we don't have that one.
BY MR. DYMOND:
If the Court please, this question with which we are confronted here is sufficiently important for both sides, at least, we would like an opportunity to submit a memorandum which we can do overnight.
BY JUDGE O'HARA:
Can't we get the book somewhere?
BY JUDGE BAGERT:
Here's a photostat, Judge, of the Temple Law Review.
BY JUDGE BRANIFF:
Here's the thing that concerns me. Do you take the position, Mr. Dymond, that you can on cross examination open the door and insinuate that the witness is crazy or that he was hypnotized before he came on the witness stand, and then turn around when the State intends to show that that was not the situation and object?
BY MR. DYMOND:
We weren't insinuating that the witness was hypnotized before he came on the witness stand.
BY JUDGE BRANIFF:
Well, the questions were asked that led to that conclusion.
BY MR. DYMOND:
If there were a witness who were not testifying under normal circumstances, why certainly we would be entitled to know about it and the only way to know is to ask him. That has nothing to do with trying to bolster the credibility of a witness, either by the fact that he submitted to a truth-inducing serum or by the fact that he was willing to submit to one.
BY JUDGE BAGERT:
What about this? Did or did you not ask the witness did he try to jump out the window of Nichols Junior High School or Nichols High? Yes or no?
BY MR. DYMOND:
Yes, sure I asked him that.
BY JUDGE BAGERT:
What was the purpose of asking him that? To show that that's sanity and that's the normal thing that students jump out of windows. Well, you explored an area. You explored an area and you left it hanging.
BY MR. DYMOND:
Your Honor, is it this Court's position that if I asked a witness whether he tried to jump out a window that that makes it possible for the State to try to bolster that witness's credibility by showing that he took a sodium Pentothal test?
BY JUDGE BAGERT:
To show that he's sane, though. What is the implication? If you asked me did I try to jump in the river off the Huey Long Bridge, what would be the purpose of asking me that?
BY MR. DYMOND:
Your Honor, the purpose in asking the question doesn't have anything to do with it. We haven't tried to offer any testimony to that effect, and certainly I would like to know whether that is the sole and restricted purpose of this testimony, that is, to show that this witness is sane.
BY JUDGE BAGERT:
I don't know about that yet. I don't know what they're going to have. I don't know what they have. All I know is as of this time, all that he has been interrogated about is the question of sodium Pentothal in connection with psychiatry. Now, as to that, I am ready to rule on the basis of the Esposito case, which I have read forty times and these various law review articles.
BY MR. DYMOND:
If the Court please, we have a Supreme Court, or at least a case affirmed by the Supreme Court.
BY JUDGE BAGERT:
But that case is not dealing with psychiatry. You are talking about something else that perhaps initially they are speaking of this man's credibility. Now, the credibility is one thing and the inferences and implications of psychiatry is another insofar as the jurisprudence is concerned, that is, the books that I have been reading. And I have read them extensively in the last three weeks.
BY JUDGE O'HARA:
Mr. Oser, what is the purpose of Dr. Chetta? Can you give it to us in a capsule form or . . .
BY JUDGE BAGERT:
Let's take a recess.