AFTER THE LUNCHEON RECESS:
THE COURT: For the record, before we bring the Jury down, I don't believe -- do you want to have him read the question back?
MR. ALCOCK: I have no objection to the question being repropounded.
THE COURT: Why don't you repropound the question where we excused the Jury and I will go to what I have.
MR. DYMOND: Let me see what I have.
THE COURT: I want you to propound it because I want to clear this up out of the presence of the Jury and then we will bring them back.
JAMES R. PHELAN, having been sworn and having testified previously resumed the stand for a continuation of the DIRECT EXAMINATION BY MR. DYMOND:
Q: Mr. Phelan, referring to the meeting at Mr. Garrison's home about which you were
testifying when you left the witness stand, at that time did you ask Mr. Sciambra why
his report of the first interview with Perry Raymond Russo contained nothing about an assassination plot or an assassination meeting?
THE COURT: Was that the interruption at that time?
MR. DYMOND: I think the interruption came on what Mr. Sciambra stated in reply to that.
THE COURT: The legal point when we get the Jury down, you can ask the question what did Mr. Sciambra say to him, then you can call for a verbatim transcript which you have written down by Mr. Neyrey and I will rule on it. Bring the Jury down. I think we are going to have Mr. Neyrey in attendance at least part of the afternoon.
MR. DYMOND: Maybe there is one other question that I have propounded and I had better
[text missing?]
Garrison's home about which you were testifying when you left the witness stand, at that time did you ask Mr. Sciambra why his report of the first interview with Perry Raymond Russo contained nothing about an assassination plot or an assassination meeting?
THE COURT: Was that the interruption at that time?
MR. DYMOND: I think the interruption came on what Mr. Sciambra stated in reply to that.
THE COURT: The legal point when we get the Jury down, you can ask the question what did Mr. Sciambra say to him, then you can call for a verbatim transcript which you have written down by Mr. Neyrey and I will rule on it. Bring the Jury down. I think we are going to have Mr. Neyrey in attendance at least part of the afternoon.
MR. DYMOND: Maybe there is one other question that I have propounded and I had better mention it to you now.
THE COURT: Shut the door.
BY MR. DYMOND:
Q: Did Mr. Sciambra contend that his original memorandum to Mr. Garrison contained an
account of an assassination meeting or assassination plot?
THE COURT: You would object on the grounds that predicate was not laid.
MR. ALCOCK: Yes, Your Honor.
THE COURT: Then you will have to get Mr. Neyrey again for that part of the testimony.
MR. DYMOND: That gets us up to date, Your Honor.
THE COURT: We used the newspapers as a reference, but it was out of context. We will have to wait for that to be transcribed.
MR. DYMOND: We now have a verbatim transcript, Your Honor.
THE COURT: We do. Did that occur in the cross-examination by Mr. Wegmann --
MR. DYMOND: Yes.
THE COURT: Suppose we try to find that.
MR. DYMOND: It is in that portion that you have, we have covered most of it.
THE COURT: I will let you ask both questions. Bring the Jury in. You can use this as an exhibit.
(Whereupon, the Jury was brought back in.)
THE COURT: I would suggest, Mr. Dymond, you do it all over again in front of the Jury.
MR. DYMOND: Very well, Your Honor.
BY MR. DYMOND:
Q: Mr. Phelan, referring again to the meeting at Mr. Garrison's house, where Mr. William Gurvich, you, Mr. Sciambra, and Mr. Garrison were present, at that time did you ask Mr. Sciambra why his report of his interview with Perry Raymond Russo which was dated February 27, 1967, did not contain anything concerning an assassination meeting or assassination plot?
MR. ALCOCK: Objection, Your Honor.
THE COURT: State your reason why, Mr. Dymond.
MR. DYMOND: My reason is that when Mr. Sciambra was on the witness stand he was asked whether or not he had ever claimed, whether he had ever claimed -- may I have the transcript, I will give it to you verbatim, Your Honor.
THE COURT: Here it is.
MR. DYMOND: Whether he ever claimed that an account of an assassination meeting or assassination plot was contained in this memorandum which he had written for Mr. Garrison, and in answer to that question he said no, he had never contended that.
THE COURT: The article that covers that.
MR. DYMOND: Article 493.
THE COURT: It is my understanding you are claiming that he did not distinctly admit --
MR. DYMOND: Not only did he not distinctly admit it, he denied it, and his denying it under the terms of Article 493, it gives me the right to put on evidence at this time to prove that he did make the statement.
THE COURT: I will overrule the objection. I will permit you to proceed.
MR. DYMOND: Would you kindly repeat the question, please.
(Whereupon, the pending question was read back by the Reporter.)
THE WITNESS: I certainly did.
BY MR. DYMOND:
Q: And what was Mr. Sciambra's reply to that question, Mr. Phelan?
A: He said that I did not know what the hell I was talking about.
Q: After he said that you didn't know what the hell you were talking about, was there any conversation between you and Mr. Sciambra or any conversation by you pertaining to a proposed bet on what was in the memorandum?
A: Yes, there was.
Q: Would you relate that for us, please.
A: He stated, he stated that I was all wrong, about stating that there was nothing about the assassination plot, and I told him that I had a copy of his memorandum and had read it six or eight times, and I said, "I will bet my job on the Saturday Evening Post that that memorandum is exactly the way I described it if you will bet your job with the District Attorney's Office and we will read the memorandum and find out who is right."
Q: Was there any response to this proposal?
A: I did not get a bet.
Q: Did you at any time during this conversation request the production of Mr. Sciambra's notes on this interview with Perry Raymond Russo?
A: Not at Mr. Garrison's house.
Q: Not at the time. Did you at a later date?
A: The next day -- I hadn't thought at the time, the next day I went down to the DA's Office and I said, "We can clear up this matter real easy by your producing your original notes." I said, "I would assume that if you heard a witness say that he had heard a plot to assassinate the President, that you would at least make a note of it." I said, "Get your original notes and we will clear it up right now."
Q: Now, Mr. Phelan, at the time of the meeting at Mr. Garrison's house or any other time, did you ask about any other things that you considered discrepancies in this memorandum as distinguished from the testimony that you heard Russo give at the preliminary hearing?
A: Well, we discussed the memorandum at considerable length, for, oh, a half hour or so.
Q: What other discrepancies did you ask about and asked to be explained to you?
MR. ALCOCK: I object to this, Your Honor, the memorandum is in evidence, the Jury heard it and they heard Mr. Sciambra and they heard Perry Russo, the discrepancies based on whose opinion, his opinion? They are asking for an opinion.
MR. DYMOND: I will rephrase the question if the Court please.
BY MR. DYMOND:
Q: Were there any other matters contained in this memorandum which you had read six or eight times about which you asked either Mr. Sciambra and/or Mr. Garrison?
A: Yes.
Q: Tell us what other things you asked them about.
A: We went over it at great length, and one line in the memorandum --
Q: Let me interrupt you and say if you have any notes of your own to which you might refer for the purpose of refreshing your memory,you may do so, sir.
THE COURT: I suggest we get the exhibit, the Sciambra memorandum and let him have the memorandum.
MR. DYMOND: All right, Your Honor.
THE COURT: Do you recall what State exhibit number that would be, "S and "D-20," "State and Defense 20"?
MR. DYMOND: That is correct, "S and D-20."
BY MR. DYMOND:
Q: I am handing a copy of the Sciambra memorandum of February 27, which has been marked for identification "S and D-20," and --
A: The main point that we discussed was on Page 6 --
MR. ALCOCK: This is what I was objecting to, this memorandum is in evidence, it states for itself, the man can't go down the memorandum and pick out discrepancies that he feels that are present in the memorandum. It has already been read to the Jury.
MR. DYMOND: I agree he cannot pick out what he considers to be discrepancies, I am not asking him to do that, and I will specifically ask the witness at this time to refrain from labeling anything "main" or putting any adjectives before it. I merely want to know what discrepancies, at least --
THE COURT: You are using the word, that is a bad word.
MR. DYMOND: I want him, I want to ask this witness what matters in this memorandum, what matters did he ask questions about, that's all.
THE WITNESS: The section that says "The next picture that he identified was that of Clay Shaw, he said he saw this man twice."
BY MR. DYMOND:
Q: What did you ask either Mr. Sciambra or Mr. Garrison about that?
A: I pointed out that I had heard Mr. Russo's testimony and that he had testified that he saw Shaw three times. The one time it was not mentioned in this memorandum was the party where the assassination plot presumably occurred.
Q: Will you name another portion of that memorandum that you asked about.
A: The conversation centered on this point, and the other two times at which Russo claims to have seen Shaw.
Q: What did you say in connection with that?
A: I said that I found that absolutely incredible that a lawyer could go to Baton Rouge, interview a supposed witness to the crime of the century and then come down and write a 3500-word memorandum and leave out the crime.
Q: I will ask you -- go ahead.
A: I said that if I had heard Mr. Russo describing the assassination plot, and I cam down and wrote a one-paragraph memorandum, I would certainly have mentioned the assassination plot.
Q: I will ask you to look further at that memorandum and tell me whether there are any other portions about which you asked or commented.
A: I think there were not.
Q: I beg your pardon?
A: I think there were not.
Q: Now, after leaving Mr. Garrison's house that evening, did you testify that you came to the District Attorney's Office the following morning, Mr. Phelan?
A: Yes.
Q: And that is when you had your conversation with Mr. Sciambra?
A: Correction, I am not certain whether it was the morning or the afternoon, the next day.
Q: It was the following day?
A: Yes.
Q: All right. At any time subsequent to your coming here to the District Attorney's Office, did you have occasion to see Perry Raymond Russo?
A: Subsequent to the preliminary hearing?
Q: Yes, and subsequent to your coming to the District Attorney's Office following the meeting at Mr. Garrison's home?
A: Yes, I went to Baton Rouge and saw him.
Q: Was this or was it not a prearranged meeting?
A: It was prearranged.
Q: With whom did you make the arrangements for this meeting?
A: Mr. Sciambra.
Q: When you went to Baton Rouge, were you alone?
A: No, sir.
Q: Whom did you have with you?
A: I had Matt Herron, he is a New Orleans photographer who shot the pictures for my Saturday Evening Post piece.
Q: Now, did you and Mr. Herron end up seeing Mr. Russo in Baton Rouge?
A: Yes, we did.
Q: Where did you see him?
A: At his home. I don't recall the address, the place where he was living at, a little frame house.
Q: Now, tell us what happened when you went in and saw Mr. Russo on that occasion?
A: We talked for several hours, he gave me the background of how he had appeared as a witness, and at the end, near the end of our interview, I handed him a copy of the Sciambra memorandum.
Q: What did you tell him when you handed him that copy?
A: I told him I was going to use the material in the memorandum in the Post piece, and I was giving it --
Q: Now, the Post piece --
A: The article I was writing for the Saturday Evening Post, and I gave it to him and asked him to read it and tell me if it was a correct account of his original interview by Mr. Sciambra.
Q: When you handed it there to him, did he or did he not read it?
A: Yes, he read it, he read it line by line.
Q: Did he make any corrections or did he accept it?
A: Yes, he made some corrections.
Q: Approximately how many?
A: He made four specific corrections and a comment.
Q: Could you tell us what the four corrections were, Mr. Phelan?
A: He corrected the line on Page 1 that said, "He was told at time" -- I presume it is at that time, a misprint here, "He was told at that time by Landry's mother that Ferrie had taken Landry out of the country" --
THE COURT: Would you repeat that, please.
THE WITNESS: He corrected the line in the second paragraph, he said, "He was told at that time by Landry's mother that Ferrie had taken Landry out of the country." He changed that to say that Landry had told him this, and not Landry's mother.
BY MR. DYMOND:
Q: All right.
A: He corrected the line on the second page in the last paragraph where it says, "Russo said that one night he and Landry and Tim Kershenstine, who lives on 2061 Pelopidas," P-e-l-o-p-i-d-a-s --
Q: Pelopidas.
A: "Phone Number 943-8490, and possibly Niles Peterson were in the Interlect, which is located on Bourbon Street and they ran into Dave Ferrie." He said it was a place next to the Interlect.
Q: All right. Anything else?
A: He corrected the line on Page 3, which says, "He also admitted to Russo for the first time he was a homosexual."
Q: What did he correct about that?
A: He said that he had not made, that Russo -- that this is referring to David Ferrie, and he said that David Ferrie did not make that admission to him.
Q: Did he make any other corrections?
A: He made a correction, he made a correction on the seventh page, where it says, "He also said that if he were hypnotized," -- no, "He said that he had been hypnotized like this before," he corrected that line and said he had not been hypnotized.
Q: Did he take exception to the statement to the effect that Russo had reported having seen Shaw only twice rather than three times as he had testified? Did you make any comment to him about that?
A: I can tell you what he said.
Q: What did he say?
A: I had underlined that in a copy of the memorandum I had, I had underlined that in with a ballpoint pen, it was the only mark I made on the memorandum, it struck me at the time, so when he was reading through, he comes to that line and he stopped, he stopped and he said, "I should have said three times, I am usually pretty careful about what I say," and he shrugged and he said, "but maybe I only said twice," and went on reading the memorandum.
Q: Did you ask him any questions pertaining to when was the first time that he had mentioned the assassination meeting or plot to Mr. Sciambra?
A: Yes, I did. When he finished reading the memorandum, I asked him one question.
Q: What was that, sir?
A: I said, "Well, then, you first mentioned the assassination plot when," and he said, "After I got to New Orleans."
Q: Now, after this Baton Rouge meeting, Mr. Phelan did you have any other occasion or occasions to see Perry Raymond Russo?
A: Yes.
Q: How did these visits or meetings come about?
A: After I had talked in Baton Rouge I went immediately to New York and I wrote the article for the Saturday Evening Post. About a week or so after the article was out I called Matt Herron here in New Orleans and I asked him what the local reaction had been about it and he told me --
MR. ALCOCK: Objection to what Matt Herron may have said.
MR. DYMOND: You cannot say what Mr. Herron told you.
BY MR. DYMOND:
Q: What you wanted to know was the local reaction to what?
A: To the article and the statements made in it.
Q: Now, as a result of your conversation with Matt Herron, did you have any further meeting or meetings with Mr. Russo?
A: I telephoned him from New York. The result of the telephone call --
MR. ALCOCK: I didn't hear his response to that.
THE WITNESS: I telephoned Perry Russo from New York.
BY MR. DYMOND:
Q: After this telephone call by you to Perry Russo, when approximately and where did
the next meeting take place?
A: About the last week in May, 1967.
Q: And where, Mr. Phelan?
A: At his home.
Q: What section of the City or on what street was he living at that time, sir, if you remember?
A: Well, the geography of New Orleans kind of baffles me. I think it is out near City Park. I don't recall the address.
Q: Now, what, if anything, did you ask Russo at this meeting?
A: The first meeting we went down to the corner, to the poolroom there and played a little pool, and we started back to the house, and I did not ask him anything, he stopped and made a statement to me in the middle of the street or in the middle of the sidewalk.
Q: What was the statement?
MR. ALCOCK: I object to any statement he may have made unless the Defense Counsel can show it is used for impeachment purposes and show the proper predicate was laid and show the witness denied making the statement.
MR. DYMOND: If this is the statement, if that is the statement I think it is, I will refer the Court to Page 420 of the transcript.
THE COURT: All right.
MR. DYMOND: If I might ask one question here. I think I can identify the statement about which Mr. Phelan is testifying in a non-prejudicial manner.
BY MR. DYMOND:
Q: Did this statement have anything to do with a priest, Mr. Phelan?
A: Yes.
MR. DYMOND: I refer Your Honor to Page 420.
THE COURT: The top of Page 420?
MR. DYMOND: Yes.
THE COURT: I overrule the objection.
MR. ALCOCK: I suggest the Court look at Page 419 where the question is answered. He went in great lengths in that answer.
MR. DYMOND: There are two sections to this statement, and I refer Your Honor to the last sentence of R.S. 15:493, where the statute says that, "If the witness does not distinctly admit making such statement, evidence that he did make it is admissible."
THE COURT: I am aware of that. I overrule the objection. I think your question should revert back to the middle of Page 419.
MR. DYMOND: I think the question was directed toward that, Your Honor, and I think that is what the witness --
THE COURT: I overrule the objection based on the last sentence of R.S. 15:493. Do you wish to have this back?
BY MR. DYMOND:
Q: What statement did Perry Raymond Russo make to you at that time concerning a priest,
Mr. Phelan?
A: He stopped, and right out of the blue he turned to me and said, "If Jim Garrison knew what I told my priest in Baton Rouge after the Shaw hearing, he would go through the ceiling."
Q: And what did you say?
A: I said, "Do you want to tell me what you told the priest," and he said, "Yes."
Q: And what did he say he had told the priest?
A: He said he told -- he told me that the had told the priest that he wanted to meet somewhere with Clay Shaw in order to be sure of his identification of Mr. Shaw.
Q: At any time, or was at any time a meeting between Clay Shaw and Perry Russo suggested?
A: I asked him first, I said, "For goodness sake, you got up here in Court and put your hand over the man's head and swore that he was the man," and I said, "now you want to make sure after you identified him," and I said "if you want to see Shaw, I think I could arrange it."
Q: What did he say to that?
A: He said, "All right."
Q: Did you attempt to arrange such a meeting with Clay Shaw and Perry Raymond Russo?
A: Yes. The next day I went to Mr. Wegmann's office and they had Mr. Shaw there and I told them what Mr. Russo had said.
Q: Did this meeting ever take place?
A: No, sir.
Q: To your knowledge, why not, Mr. Phelan?
THE COURT: If he knows of his own knowledge.
MR. DYMOND: That is correct.
THE WITNESS: Mr. Shaw agreed to it immediately, and I went back and so reported it to Perry Russo and he backed off.
BY MR. DYMOND:
Q: At that time, did he give you any reason for his backing off?
MR. ALCOCK: I object to this, Your Honor, is this impeachment or are we going back over this area? We will put Perry Russo back up and Mr. Sciambra, we will be here two years, Your Honor.
THE COURT: I think Mr. Alcock's objection, unless you lay a predicate, specifically to impeaching on that particular point, you can't let it go into a general summation of what he thinks happened.
MR. DYMOND: I refer Your Honor to Page 429 of the transcript of Mr. Russo's testimony, and it is also covered on a couple of the preceding pages, Your Honor.
THE COURT: I think the question refers to the last paragraph of Page 428.
MR. DYMOND: Yes, and it is also covered on a couple of the preceding pages, Your Honor. The main question that I wanted to ask is covered on Page 429.
MR. ALCOCK: I don't think there is any impeachment here.
THE COURT: That is what I was going to say. The question was put to the witness, Mr. Phelan.
MR. DYMOND: This has to do with the first reason for not going through with the appointment.
THE COURT: You are asking the question on that matter? I am not going to repeat it, in the middle of 428, he gave you an answer. I think this answer is such that he would not call it, you would not call it a denial. It is in the middle of Page 428.
MR. DYMOND: That is not a flat denial, but, once again, I refer the Court to the last sentence of R.S. 15:493, which says, "If the witness does not distinctly admit making such statement, evidence that he did make it is admissible." Certainly while it may not be a flat denial, it is not a distinct admission.
THE COURT: I am not going to repeat the question, he says that may have been part of it. I would understand that ordinarily to me that the part that he is admitting is part of it, there may be more to it than that, you haven't asked him about the part.
MR. DYMOND: He says that may be part of it, but --
THE COURT: It goes on "Did you tell him that?", and his answer is "I am not sure that is exactly the reason I gave, no," so he is not sure.
MR. DYMOND: That is correct, so that he does not distinctly admit it.
MR. ALCOCK: He may not be sure of the reason he gave, but it is an admission.
MR. DYMOND: The law requires a distinct admission.
THE COURT: I agree with you, Mr. Dymond. Mr. Alcock, based on that last sentence, if the witness does not distinctly admit making such statement, evidence that he did make it is admissible," and under the way I am reading the testimony of 428 and 429, I will overrule your objection and permit him to answer the question.
BY MR. DYMOND:
Q: What was the first reason that Perry Raymond Russo gave to you for not going through
with that meeting?
A: He said that word of it would undoubtedly leak back to Mr. Garrison that he met with Mr. Shaw and that Mr. Garrison would clobber him.
Q: Now, at any subsequent time did Mr. Russo give you any other reason for not having gone though with that meeting?
A: Yes.
Q: Approximately when and where did this occur, Mr. Phelan?
A: About six, five or six days later, on the eve of my departure for New York, out of my car in front of his house.
Q: What did he say at that time?
MR. ALCOCK: Objection, unless it can be shown in the record --
MR. DYMOND: That is on Page 429.
MR. ALCOCK: That has something to do with the dinner at Fitzgerald's. He said it happened when he got out of his automobile.
THE COURT: Let me see if I understand the legal situation. You are asking Mr. Phelan of an incident which occurred in front of Russo's home, and there was nothing here --
MR. DYMOND: I will ask Mr. Phelan where they had been prior to that in order to tie it in.
THE COURT: Because there is nothing in here.
BY MR. DYMOND:
Q: Prior to the statement about which you were about to testify, where had you and Perry Raymond Russo been?
A: I took him and his roommate, Steve Derby, to the seafood restaurant on the Lake, I think it is Fitzgerald's, right on the edge of the water.
Q: Now, at any time after leaving Fitzgerald's and more particularly in the vicinity of Perry Raymond Russo's house, did he give you any other reasons for not having kept the appointment?
MR. ALCOCK: I object, the objection being that Mr. Russo was on the stand as clearly demonstrated on 429, his attention was not called to a specific time and place.
MR. DYMOND: I submit it was, Your Honor, if you will read the transcript --
THE COURT: I think the time, place and circumstances have been sufficiently identified at the place in the city, the time right after the dinner, and I overrule the objection.
MR. DYMOND: You can read the same sentence, if you want.
BY MR. DYMOND:
Q: After the dinner at Fitzgerald's, did Mr. Russo give you any other reason for not having gone through with the appointment to meet Clay Shaw?
A: Yes, he did.
Q: What was it, sir, what did he say?
A: He told me, "I lied to you the first time I explained why I did not want to see Mr. Shaw," he said, "the reason I did not was that if I knew that if I got in the same room with him and talked to him, that I would know he was not the man, and if I knew that," he said, "what could I do, I could go on the run somewhere, I could go to Mexico or go out to California or San Francisco and become a beatnik, but I could never run from myself."
Q: Was there ever any conversation by you with Russo in connection with the difficulty and indistinction between reality and fantasy?
A: Yes.
Q: Did he ever say that he had difficulty in so doing?
MR. ALCOCK: I object, Your Honor, unless it can be shown where.
MR. DYMOND: Page 433 of the transcript, Your Honor.
THE COURT: The way I read Mr. Russo's answer is that he did admit distinctly, he did not deny it.
MR. DYMOND: He admitted it with an explanation which amounted to a qualification.
THE COURT: I rule that he did admit it and he had a right to give an explanation in that particular instance. I will sustain the objection.
BY MR. DYMOND:
Q: Mr. Phelan, did Mr. Russo ever express any fear of reprisals from Mr. Jim Garrison in the event that he should change his testimony?
MR. ALCOCK: Objection, Your Honor.
MR. DYMOND: Page 436, Your Honor.
THE COURT: It involves two full pages, Mr. Dymond. Mr. Alcock, the way I read the testimony, it is from the beginning Mr. Russo answered not exactly, no, and then he was permitted to explain, and after he explained, the question was repeated, "You didn't say it the way I read it to you, right," and he says "No," so he makes an absolute denial of the way, so I overrule the objection.
MR. ALCOCK: All right, Your Honor.
BY MR. DYMOND:
Q: Do you recall the question?
A: Yes, he did.
Q: What did he say in this connection, Mr. Phelan?
A: He said that he kept agonizing over the thing, he repeatedly said that he was sorry he had come forth as a witness, he felt trapped, and that if he tried to change his story now, that Mr. Garrison would probably charge him with something and that he would be clobbered and discredited and lose his job, he was particularly concerned about his job with an insurance company.
MR. DYMOND: We tender the witness.