Clay Shaw trial: Preliminary motions
[Transcript begins with the court already in session:]
. . . Exnicios which states as follows:
"In keeping with the message from you through your Minute Clerk, John Sullivan, I enclose a statement from Dr. F. J. Padua concerning my client. Since Mr. Beauboeuf has filed an affidavit to the effect that he does not wish to avail himself to this privilege, I have no other alternative but to supply the Court with the exhibit, which is hereby handcarried to be delivered to and receipted for by the Court. I would, however, request that an order be issued by you overruling my previous objection and requiring the production of this exhibit."
I have so ordered. I overrule his objection and require the production of it. I am turning it over to the Property Clerk as an exhibit in this case.
MR. ALCOCK: Your Honor, that is not a part of the official record at this time, is it?
THE COURT: I am merely putting it as an exhibit to be offered at the right time, not as a part of the case. It hasn't been offered by either side as an exhibit. Now, I believe that disposes of it, Mr. Klein.
MR. KLEIN: Yes, sir, it does.
THE COURT: That means that I sustain your intervention, and that brings us up to the other motion. May I have the State's answer?
MR. ALCOCK: The State at this time files its answer to Motion for Protective Order, serving copies of the answer on Defense Counsel and providing the Court with its formal answer (handing document to the Court).
THE COURT: Take this down, Mrs. Dietrich. It is very short and I will read it into the record.
"Now into Court comes the State of Louisiana, through the undersigned Assistant District Attorney for the Parish of Orleans, for the purpose of answering the Defendant's Motion for Protective Order, and does answer as follows:
"The Defendant's request for a protective order is completely foreign to the law of Louisiana. Article 61 of the Louisiana Code of Criminal Procedure provides in part that the District Attorney 'determines whom, when and how he shall prosecute' any violation of the criminal law within his jurisdiction. Counsel for the Defendant has not, nor indeed can he, cite any law to the contrary. The Court simply is without authority to grant the relief sought.
"The State of Louisiana, therefore, respectfully requests this Honorable Court to deny the Defendant's Motion for Protective Order.
"WHEREFORE, the State prays that this answer be deemed good and sufficient in law and that the Defendant's Motion be denied."
I will be glad to hear from you, Mr. Dymond, oral argument.
MR. DYMOND: If the Court please, in asking for this protective order, we have asked for the only thing which will satisfy Counsel for Sandra Moffett McMaines and persuade him to make this witness available to us. We realize that the order which we have requested goes outside the scope of the protection which is offered by the Interstate Witness Act, which, of course, guarantees immunity from arrest only for past actions. However, we submit that Article 17 of the Louisiana Code of Criminal Procedure in general terms gives the Court authority to issue such an order, wherein that Article states that: "A court possesses inherently all the powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including the authority to issue such writs and orders as may be necessary or proper to aid in its jurisdiction. It has the duty to require that criminal procedures shall be conducted with dignity and in an orderly, expeditious manner, and to so control the proceedings that justice is done. The court has the power to punish for contempt."
Now, if the Court please, as has been made public, Perry Raymond Russo contended that Sandra Moffett McMaines was with him on the night of the party in question. Sandra Moffett McMaines has publicly denied this, stating that she did not even make the acquaintance of David Ferrie until sometime in the year 1965. This lady has moved to the state of Iowa, which has no provision for sending a witness to this state contrary to that witnesses's wishes. We feel that she is an essential witness here, she is needed for the proper presentation of this case, and we ask that the Court exercise the power granted by Article 17 and furnish the protection which her lawyer has demanded as a condition precedent to his advising her to come to Louisiana to testify.
THE COURT: Well, the State's answer certainly is legally sufficient. I have not heard of it being done, nor have I heard of it being done in the state.
MR. DYMOND: I think it was done for Gordon Novel, Your Honor.
THE COURT: He was charged as a material witness. Now, if a person is charged as a material witness, I can put them in jail under a bond. Are you suggesting that we charge this person as a material -- she has been charged and we weren't able to get her back.
MR. DYMOND: She has been charged and she has been unable to be obtained. That is exactly why we need the protective order, Your Honor. Her attorney has stated those are the only conditions under which he will permit her to come here to Louisiana. In blunt terms, she is fearful of arrest by the District Attorney's Office.
MR. ALCOCK: Your Honor, I would like to have an opportunity to respond --
THE COURT: I will give you that opportunity.
Mr. ALCOCK: -- to Counsel's remarks.
THE COURT: Counsel, the only solution I can think of is to put her in the Parish Prison.
MR. DYMOND: We have to get her here first.
MR. WEGMANN: We have to get her here first.
THE COURT: First promising to keep her safe, if that is what you mean. I will be glad to hear you, Mr. Alcock.
MR. ALCOCK: Your Honor, the Court has recognized that the State limited itself in its answer to the sole legal issue presented to the Court, and that is whether or not this Court has the power to grant immunity to anyone, no matter who that person may be, from prosecution. As the Court well knows, the District Attorney is granted complete powers as to whom, when and how he shall prosecute. I would like to make it clear at this time that the State of Louisiana, the District Attorney's Office for Orleans Parish, does not intend to clamp this woman in irons the moment that she crosses the parish line. However, the State cannot accede to something that is outside the law. In effect, this Court would be going outside the law and granting to the Defense something which they are not entitled to. If this witness comes into our parish and commits any violation of the law, it would not only be -- we would not only charge her but it would be our duty to charge her lest we be charged with malfeasance in office, and this is our position. We do not intend to arrest this girl should she come back. As a matter of fact, if the record were made straight, the reason she is in Iowa is because we attempted to get her back first by the usual procedure of the Interstate Witness Act, and she ran to a state which is not signatory to that Act and therefore she is beyond the bounds of this Court using that particular vehicle, but I would assure the Court the District Attorney's Office has no intention of arresting this girl merely because she is present in this parish, but if she does commit a crime in this parish, she like anyone else is not above arrest and prosecution. She will be prosecuted.
THE COURT: Her fears are unfounded, in other words?
MR. ALCOCK: Her fears are completely unfounded.
THE COURT: Do you wish to be heard at this time, Mr. Dymond?
MR. DYMOND: Yes, sir. If the Court please, as a practical matter it doesn't make any difference whether Your Honor or whether we are convinced as to whether this girl's fears are unfounded. We are trying to convince her attorney that those fears are unfounded, and we have no way in which to do that. I think it is the State's responsibility to see that justice is done. The State wants her here, we now want her here. If we are in accord, I think we have a way of getting her here, by the issuance of that order.
THE COURT: We have been trying to get her back for about a year and a half. I think the State made the first effort to get her here. They certainly were trying to get her back before you people.
MR. DYMOND. We have been assured by her attorney that she will come here if this order is issued.
THE COURT: I cannot issue it. You have a statement from the District Attorney that he has no intent of putting this person in jail. If her attorney can't accept that, I don't know what he can accept.
MR. DYMOND: I can't stand here and tell you what her attorney will accept other than what he told me that he would accept, and he says that the only condition under which he will permit her to come to Louisiana is with a protective order of the kind that we have requested.
THE COURT: I am going to rule that your motion is denied.
Now let's bring the Jury down, and take your Bill of Exception.
(Jury brought to the box.)
THE COURT: Are both the State and the Defense ready to proceed?
MR. DYMOND: We are ready.
MR. ALCOCK: The State is ready.
MR. DYMOND: If the Court please, in the presence of the Jury I would like to reserve a bill of exception to Your Honor's overruling our Motion for a protective order for Sandra Moffett McMaines, making parts of the Bill our exhibits filed with the Motion.
THE COURT: Very well.
Are the State and the Defense ready to proceed at this time?
MR. DYMOND: We are, and at this time, if the Court please, we will ask for a sequestration of witnesses.
THE COURT: Just a minute. Those witnesses whose names have been enumerated and those who know they will be witnesses whose names were not on there are requested to step outside of the courtroom.
MR. DYMOND: Your Honor, we will ask that you also require the State to advise any person whom they intend to use as a witness, whether that person be aware of it or not, to step outside the courtroom, and the Defense will do the same.
THE COURT: I think that is a fair request. All right. The State and the Defense are both ordered by the Court, if they know a person is to be a witness, to ask that person to step outside, whether their name is listed on the record or not.
MR. ALCOCK: Your Honor, may I have a five-minute recess in order to discuss this with Defense Counsel?
THE COURT: We will take a five-minute recess. There is no need to send the Jury back.
(Whereupon, a brief recess was taken.)
AFTER THE RECESS:
THE COURT: Gentlemen, are the State and the Defense ready to proceed?
MR. ALCOCK: Yes, sir.
I have complied with your request, Mr. Dymond, and following our conference I have requested all witnesses, whether named or not, to get out of the courtroom.
MR. WILLIAM WEGMANN: One of your witnesses I wish you would instruct is Mr. Matt Herron. I saw him before and he was still here.
MR. ALCOCK: Would you repeat his name?
MR. WEGMANN: Matt Herron.
THE BAILIFF: I just sent him out, Judge.
THE COURT: If the State and the Defense are ready to proceed, the first order of business is the opening statement by the District Attorney.
MR. DYMOND: Is Your Honor going to have the Indictment read to the Jury first?
THE COURT: I think that is a very good idea. First let the record reflect that the jurors were individually sworn after they were accepted, so the jurors have been officially sworn for the trial of the case. All right. Mr. Sullivan, read the Indict- ment to the Jury, please.
THE CLERK: (reading)
"The Grand Jurors of the State of Louisiana, duly impaneled and sworn in and for the body of the Parish of Orleans, in the name and by the authority of the said State, upon their oath, PRESENT That one CLAY L. SHAW, late of the Parish of Orleans, between the 1st day of September and the 10th day of October, in the year of our Lord, One Thousand, Nine Hundred Sixty-three, with force and arms in the Parish of Orleans aforesaid, and within the jurisdiction of the Criminal District Court for the Parish of Orleans did wilfully and unlawfully conspire with DAVID W. FERRIE, herein named but not charged, and LEE HARVEY OSWALD, herein named but not charged, and others, not herein named, to murder JOHN F. KENNEDY, contrary to the form of Statute of the State of Louisiana in such cases made and provided and against the peace and dignity of the same.
"(Signed) ALVIN B. OSER, Assistant District Attorney for the Parish of Orleans.
"No. 198-059 (M-703)
"STATE OF LOUISIANA versus CLAY L. SHAW
"INDICTMENT for VIO. R.S. 14:26(30)
"TRUE BILL /s/ ALBERT V. LaBiche, Foreman of Grand Jury
"New Orleans, March 22, 1967
"Returned in open Court and recorded and filed March 22, 1967
"/s/GEORGE W. PLATT, Minute Clerk."
THE COURT: We will now hear the opening statement by the District Attorney.
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