Arguments for a directed verdict in the trial of Clay Shaw



THE COURT: You may proceed.

MR. DYMOND: If Your Honor please, at this time the Defense would like to file a motion for a directed verdict, which we are prepared to argue at this time.

THE COURT: Have you served a copy on the State?

MR. DYMOND: I have, yes.

THE COURT: I can see the reasonableness of excluding the Jury, but what is your authority that you should argue this out of the presence of the Jury?

MR. DYMOND: Your Honor, it has been held reversible error for the Jury to be informed that a motion for a directed verdict has been filed and denied, for the reason that it gives the Jury the impression that the Court as of the time of denying that motion feels that a prima facie case has been made out by the State, and it would consequently indirectly amount to a comment on the evidence by the Court.

THE COURT: I understand that, but I wondered why when they drew this article, why they didn't include it in there. It seems obvious.

MR. DYMOND: It is not specifically included in the article.

THE COURT: It is not in Article 778 of the Code of Procedure, but I can see where it would be prejudicial to give the Jury the impression that the Judge thinks they have made out a prima facie case.

MR. DYMOND: That is correct.

THE COURT: If you do it out of the presence of the Jury, they do not get that information.

MR. DYMOND: That is correct.

THE COURT: I will hear your argument on that point.

MR. DYMOND: If the Court please, at the outset we would like to respectfully call the Court's attention to the specific working of R.S. 1426.

THE COURT: That is the conspiracy article, the statute under which this Defendant stands charged.

THE COURT: You may proceed.

MR. DYMOND: Your Honor will note that criminal conspiracy is defined as the "Agreement or combination of two or more persons for the specific purpose of committing any crime." Then, of course, you must have an overt act, as the statute goes on to say.

Now, if the Court please, our motion is primarily directed at the nonexistence of an actual agreement or combination, according to the very testimony of the State's witnesses.

Before getting into the contradictions of Perry Russo, the witness upon whom the State must rely in attempting to establish this agreement or combination, let me call the Court's attention to one specific verbatim quotation from the testimony of Russo:

"Q. And it is your testimony that you sat in, or listened in, on a conspiratorial meeting with a man whom you saw represented in the paper and on television as the killer of President Kennedy, and didn't report it at any time to any law enforcement agent? Is that right?

"A: No. I never said anything about a conspiracy; I didn't sit in on any conspiracies."

Now, if the Court please, I can well anticipate the State's answering this by saying that Perry Raymond Russo is not qualified to pass upon whether this amounted to or did not amount to a conspiratorial meeting. Such an argument as that would be very, very difficult to answer were it not for the other testimony of Perry Raymond Russo wherein we actually got down to the specifics of what he did hear and did not hear. If Your Honor will recall, on cross-examination I asked Perry Raymond Russo:

"Q: Did you hear Clay Shaw agree to do anything?"

The answer was an unequivocal no.

"Q: Did you hear David Ferrie agree to do anything?

"A: No.

"Q: Did you hear Leon Oswald agree to do anything?

"A: No."

If Your Honor please, I submit in that connection that without an agreement to do anything you cannot have an agreement or combination, an agreement in the sense used in R.S. 1426 as actually a meeting of the minds as you would have in a contract in civil law, and without any of the three alleged participants to an agreement agreeing to do anything, I submit to Your Honor that the requirements of 1426 cannot be met, because this Act requires that there be an agreement or combination for the specific purpose of committing any crime, which means that the participants must specifically agree, there must be a meeting of the minds.

Now, we went on further with Russo. Russo was asked whether he ever heard any particular victim of an assassination referred to as being the victim of it, was he sure whether they were planning to kill Kennedy or Castro. He did not know, he could not say. Then the requirement that there be an agreement to commit a specific crime is completely nonexistent. We then go further in the testimony of Perry Raymond Russo, and, as I am sure the Court will recall, I said, "Russo, was there any agreement or was there any plot or plan, or was this a bull session? Was it a bull session as you had heard David Ferrie conduct and participate in on many other occasions?" At which time Perry Raymond Russo admitted from that witness stand that, by his own terminology, this was nothing more than a bull session.

Now, I submit to Your Honor that at certain times when President Kennedy was extremely unpopular because of specific things that he had done in connection with his office as President of this country, there were many loose bull session remarks made by many people who disagreed with his policies, and certainly it would be ludicrous and ridiculous to brand each such remark or bull session as the type of agreement or combination which is required by the terminology of R.S. 1426 to constitute an unlawful conspiracy to commit a crime. Perry Raymond Russo, as Your Honor well knows, is the only witness who allegedly witnessed this alleged conspiratorial meeting. Where else can we learn at this point of the case what went on in that meeting? What was the attitude of the people?

Was it an attitude of seriousness, or was it a bull session? Was there a plan or plot? Was there a legally prohibited agreement or combination to commit a crime?

Your Honor, I say there is nowhere else that we can now learn that, and, therefore, this Court is constrained to accept the word of Perry Raymond Russo for the purpose of this motion for a directed verdict, as to what was the atmosphere at 3330 Louisiana Avenue Parkway.

Was there a conspiracy? Russo's answer is no, I did not sit in on any conspiracy, I have never referred to anybody as a conspirator. Did you hear Mr. Shaw agree to anything? No, I didn't hear him agree to anything, I didn't hear Ferrie agree to anything, I didn't hear Leon Oswald agree to anything. Was this a serious meeting? No, it was a bull session -- in his own words -- a bull session such as I have heard David Ferrie participate in many times. It was characteristic of the man to do so.

So we say, Your Honor, that this strikes at the very heart, strikes at the very core of what is necessary for the State to start out with, what it is necessary for the State to have proven even to be able to prove overt acts, even to hold one alleged conspirator responsible for the acts of another one.

We get then to the absolute void, to the absolute failure of the State to do the two necessary things in connection with the alleged overt acts, that is, prove that the acts were committed and prove that, if they were committed, they were committed in furtherance of an illegal conspiracy or a combination or agreement.

We ask that Your Honor review the overt acts alleged by the State, review the overt acts attempted to be proven by the State.

We have the trip of Mr. Shaw to the West Coast alleged as an overt act. We in all sincerity submit to this Court that while there is no dispute about a trip to the West Coast by Mr. Shaw, likewise there is actually no connection, no showing of any connection between this trip to the West Coast and the alleged conspiratorial meeting. Nowhere in this record has it been established that this trip was taken in furtherance of anything other than a desire by Mr. Shaw to fulfill a speaking engagement on the West Coast.

We went then to the trip to Houston, Texas, by David W. Ferrie. In connection with that, Your Honor, I submit that once again we have a complete lack of connection between this trip and the alleged conspiratorial meeting and the object of the conspiracy. So David Ferrie did go to Houston. Actually the witness by which they proved that he went to Houston destroyed his own credibility, claiming that he had been contacted by Mr. Sciambra back in 1964, when I don't think Mr. Sciambra was even in the District Attorney's office. But even accepting as true, accepting at face value the testimony of this witness, there is no connection whatsoever established between the trip by David W. Ferrie and any agreement or combination to kill President Kennedy.

Further in connection with that alleged overt act, Your Honor, I might point out that at the time of this alleged overt act, President Kennedy had been shot, had been dead.

We get then to the alleged overt act concerning the taking of the rifle by Lee Harvey Oswald from the home of Mrs. Paine to the Dallas School Book Depository.

First of all, if the Court please, it has yet to be proven by the State -- and all that we have to go on for purposes of this motion is the record as it exists right now -- it has yet to be proven by the State that Lee Harvey Oswald ever took a gun to the School Book Depository. The witness produced by the State in connection with that alleged overt act merely testified that he had a package which he, Lee Harvey Oswald, said contained curtain rods.

As a matter of fact, I might point out that the State has by implication tried to show that Lee Harvey Oswald actually had nothing to do with this shooting.

Now, Your Honor, I have covered three of the alleged overt acts. The two remaining ones are actually contained in, and interwoven in, the alleged conspiratorial meeting at 3330 Louisiana Avenue Parkway.

Actually they are part of it. However, in connection with those, I can merely revert back to the testimony of Perry Raymond Russo, and just as I submitted to the Court that his testimony actually destroyed the contention that there was an agreement or combination, his testimony has the same effect upon the alleged overt acts which were interwoven in that meeting, that is, the effect of destroying them.

So in closing, Your Honor, we respectfully submit to the Court that, Number One, no agreement or combination to commit a specific crime has been proven by the testimony of the State's own witnesses. That is Element Number One of the crime missing. No overt acts have been proven, which is Element Number Two of the crime, which adds up, Your Honor, to one thing, and that is that the State has not made out a prima facie case, and we ask that Your Honor exercise the power vested in you by the Louisiana Legislature and direct that this Jury return a verdict of not guilty at this time.


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