The Clay Shaw preliminary hearing testimony of Nicholas J. Chetta

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?]
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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.

DR. NICHOLAS CHETTA, having been recalled as a witness by the State, did testify as follows:
* * * DIRECT EXAMINATION * * *
BY MR. OSER:
Q. Dr. Chetta, in speaking of the use of hypnosis as a diagnostic tool in the area of psychiatry, can you state, Doctor, as an expert, whether or not after a person undergoes hypnosis, does this person recall more or would he recall more in his conscious mind? In other words, would he recall more after he came out of hypnosis if he were questioned about a certain point in his life?
A. Yes, sir, this is quite true. The time interval will vary also. After the person comes out of a hypnotic state, they will have sometimes recall of a very important name, place, or thing. Now, this may occur as late as two weeks to a month that suddenly they begin to have a refreshment of their memory or recall.
Q. Now, why does this occur, Doctor, in your opinion?
A. To tell you a scientific reason, I really can't give you a good scientific basis for it, except that probably it has taken this person this length of time subconsciously to remove this block or log-jam that they had. But to give you a pure scientific reason for it, I couldn't.
Q. Now, Doctor, is it not possible for a subject to undergo hypnosis or to be placed under hypnosis and not recall what occurred under hypnosis?
A. That is quite true, yes, sir.
Q. Why is that, Doctor?
A. Because -- what you are dealing with with a person in a hypnotic state is that you have an individual in a semi-conscious state, and they will remember sketches of things, and other things they'll have a true amnesia for. Again, the explanation for this, I really don't know, but it is a fact; it happens.
Q. Now, Doctor, in a hypothetical question, taking a white male, age twenty-five, who has education background of high school education, college degree, was in attendance when an assassination plot was made to kill the President of the United States, was placed under a hypnotic trance, and the doctor administering the hypnosis in bringing this person out of hypnosis tells him, the subject, to count to five, when you get to five, you will awake. Is it not possible for this person to actually count, one, two, three, four, and on five, awake, yet not recall saying, one, two, three and four, and merely remember the number five and come awake?
A. Yes, sir, that's quite possible, because five was the so-called trigger number in which the thought was implanted, at five you're going to awake. The one, two, three, four business is sort of a mechanical thing. And it is not necessary that they remember the one, two, three and four. They will do it, because they were suggested to do it. But on five, which is the trigger number on which he comes out of his trance, he will remember the five.
Q. Doctor, can you give me the dates that Perry Russo was placed under hypnosis?
A. The first date was the 28th [sic].
Q. Of what month, Doctor?
A. Let's see. February, February 28th [sic]. Then the next time was a Thursday [March 9], and this was the time in Mr. Ward's office, and the last time was Sunday.
Q. This past Sunday? Would that be March 12th?
A. Yes, and this was in my office in the Coroner's Office.
Q. Of course, this is 1967, is that correct?
A. '67, yes, I'm sorry.
Q. Now, Doctor, in the area of hypnosis, if a subject is placed in a hypnotic trance, and a discussion concerns itself with a particular area in time of this subject, in regards to a particular month of a particular year, after this subject is taken out of this hypnosis or this hypnotic trance, would not this subject recall more about this particular month and this particular year than he would about some other month in this particular year?
BY MR. DYMOND:
Now, we object to this, if the Court please. This is getting completed without the realm of sanity or insanity. It is trying to bolster the credibility or at least the ability to testify accurately, and I don't think that this type of evidence is admissible at all for that purpose. In support of the objection, we would like to cite the case of Lindsay versus the United States, which is a Ninth Circuit, US Circuit Court of Appeals case.
BY JUDGE BRANIFF:
Mr. Dymond, he's only asking for an opinion here. It requires only a yes or no answer.
BY MR. DYMOND:
I fully understand that, sir. But it is my understanding and it was the statement of the State that they were here dealing with the question of sanity or insanity, claiming that that had been put at issue. Now, they are trying to bolster the credibility of this witness or to bolster their position with respect to his ability to testify accurately, and there is no authority in law for evidence as to these tests of these kinds to be admitted under those circumstances. The citation of Lindsay versus the United States is 237 Federal (2d) at page 893.
BY JUDGE BAGERT:
We all have it here. United States Circuit Court of Appeals for the Ninth Circuit on May 7th, 1966.
BY MR. DYMOND:
That is correct, sir. That is the decision which has been tendered to the Court.
BY JUDGE BAGERT:
This case, my interpretation of it, confirms the identical thing that I said yesterday afternoon at 4:00 or 4:30. It supports my position 100%. Is that right?
BY MR. DYMOND:
It's from your article, Judge.
BY JUDGE BAGERT:
Now, the question is: Can this expert physician testify as to these other factors? Now, we are not dealing with whether he can repeat what the subject said under hypnosis or sodium amytol or under sodium Pentothal. We are dealing with the question of his ability to remember after this type of treatment in connection with psychiatric examination. Is that right?
BY MR. DYMOND:
That is correct, Your Honor. We are dealing with ability to remember. That's what this question was aimed at.
BY MR. OSER:
That is not what this question was aimed at. Mr. Dymond does not have my mind. He is not thinking of what I am thinking of. He's on credibility. I'm on the question of sanity or insanity and orientation as to time, date and place of the subject of whom he is giving his opinion about.
BY JUDGE BAGERT:
I am satisfied that the memorandum that you furnished me from the case that I cited you yesterday covers the point, and I think my brothers are, too, that the physician cannot repeat what was said under the influence of sodium Pentothal and sodium amytol, but he can give this diagnostic report as to what happened as a result of it without actually saying what he said. Now, if he repeats verbatim or if he repeats in substance what was said, it is my opinion that that is corroborative evidence, which has been precluded in the case that you brought me here today and the citations I furnished you with yesterday. But I do believe that he can give the results, the analysis of it, as a result of his diagnosis.
BY MR. DYMOND:
I see. Your Honor, we have no objections whatsoever to his diagnosis but, as I understand the question propounded by the State, it was a question to the effect of would this witness remember more accurately events in the past which had been asked of him during the time he was under hypnosis. That goes beyond the realm of diagnosis and procedure during the administration of this hypnosis.
BY MR. OSER:
My question, Your Honor, to Dr. Chetta made no referral to a witness or to Perry Russo. I said, if a subject, and the question can be read back. I'm talking about a subject, not the witness.
(QUESTION READ TO THE COURT BY THE COURT REPORTER.)
BY MR. OSER:
There's no Perry Russo mentioned in that question.
BY JUDGE O'HARA:
I'm just wondering myself if you're not getting out of the field of the doctor's expertise, so to speak. We have Dr. Fatter here, for one thing. I don't think you presented this witness as an expert in the field of hypnosis, did you?
BY MR. OSER:
Your Honor, I qualified Dr. Chetta as an expert in the field of medicine, forensic medicine, psychiatry and the doctor has stated that one of the diagnostic tools is that of sodium Pentothal as well as hypnosis.
BY JUDGE O'HARA:
I might know that as a layman.
BY MR. OSER:
He has a right to testify about it, Your Honor.
BY JUDGE O'HARA:
He might know about it, but he may not be an expert in it.
BY MR. OSER:
But, Your Honor, he has stated his opinion as to sanity or insanity. He based this opinion on, besides sodium Pentothal, the hypnosis sessions at which he was present.
BY JUDGE O'HARA:
I agree with that part of it. But I don't know if -- have you ever hypnotized anybody?
A. On several occasions.
BY JUDGE O'HARA:
You have? Nobody asked him that question.
BY JUDGE BAGERT:
The objection is overruled.
BY MR. DYMOND:
To which ruling, counsel reserves a bill of exception, making the entire record, all of the testimony, all of the proceedings, the objection of counsel, the ruling of the Court parts of the bill.
BY MR. WARD:
May we have the question read back by the court reporter?
(QUESTION READ BY THE COURT REPORTER.)
A. The answer is yes.
EXAMINATION BY MR. OSER:
Q. Now, Doctor, in a hypothetical question, take a twenty-five-year-old white male, who has the education background of high school and received a degree in political science, was present when three people planned the assassination of President Kennedy during the month of September 1963, that this hypothetical person was placed under hypnosis and a discussion was had while he was under hypnosis with regard to the month of September 1963 . . .
BY MR. DYMOND:
Object to that, Your Honor.
BY JUDGE O'HARA:
He's not finished yet.
BY MR. DYMOND:
I'm sorry; go ahead.
BY MR. OSER:
Q. If, Doctor, this hypothetical person is questioned about the events specifically in September of 1963, after this hypothetical person is brought out of this hypnotic trance, would or would not this hypothetical person in 1967, after his hypnosis, recall more about what occurred in regards to him in September of 1963, than in July or October or November or December of 1963?
BY MR. DYMOND:
If the Court please, we object to that. First on the grounds that the hypothet goes outside the evidence. The Court did not permit the substance of the questions propounded to this witness, Russo, while under the influence of hypnosis to be brought out in evidence. So, we have here a part of the hypothet which is not in evidence. We object to it on that ground in addition to the ground set forth in the previous objection.
BY JUDGE BAGERT:
What is the objection?
BY MR. DYMOND:
My objection, Your Honor, is that the elements of a hypothetical question propounded to an expert must remain within the bounds of evidence which has been presented in the case.
BY JUDGE O'HARA:
That's correct.
BY MR. DYMOND:
Otherwise, while this usually arises in jury cases, there wouldn't be anything for the jury to apply the opinion of this expert. And the purpose of the expert testimony is to enable the jury to pass upon this evidence which has been furnished. But here no evidence on one of the elements has been furnished.
BY JUDGE BAGERT:
Which one? Which element did you speak of?
BY MR. DYMOND:
I beg your pardon, Judge?
BY JUDGE BAGERT:
Which element do you speak of as not part of the testimony?
BY MR. DYMOND:
The question as to what happened in the summer or September of 1963 which the Court ruled the State could not ask of this expert witness yesterday. They were not permitted to go into the details of the conversation or the questions asked.
BY MR. OSER:
I haven't asked him the details of the conversation.
BY JUDGE BRANIFF:
It was discussed under hypnosis. He's not asking that question. He's asking him if he would recall more facts under the hypnosis. Would it help him to remember when he came out.
BY MR. DYMOND:
No. The thing is, it has not been proven because this Court
[Page 371 is missing.]
[BY JUDGE BAGERT?]
All right. You want to read that last question?
(QUESTION READ TO WITNESS BY THE COURT REPORTER.)
A. I'm going to answer that yes, but do I have the privilege of amplifying it? To be able to fulfill all the requirements of a hypothet, this individual certainly, we take for granted he has been in a hypnotic trance, and secondly, you had brought him to a specific time, September 1963. The third requirement is that this man had to experience this particular experience, and if these three things that I just mentioned and as has been brought out in this hypothetical question, with a hypothetical person, are present and they are, then the answer is definitely yes.
EXAMINATION BY MR. OSER:
Q. Now, Doctor, as an expert, am I correct in stating this question to you? Would not a person who is placed under hypnosis three times or more than once, does not this person usually recall more than if he had been placed under merely once? In other words, Doctor, the more a person is placed under a hypnosis, is it not a fact that he is able to recall more and more and perhaps better and more clearer [sic] with each session, so to speak?
A. Again, the answer to the question directly is yes, but it must have some explanation. If my explanation goes out of line, I'll wait and let you object, Mr. Dymond. The successive hypnotic trances in which you are dealing with specific time, specific events, this person will certainly have better recall on the successive occasions of a hypnotic trance.
Q. Tender the witness.
* * * CROSS EXAMINATION * * *
BY MR. WEGMANN:
Q. Dr. Chetta, my notes indicate that when you testified as to the sanity of this man, you stated that he fills all the requirements of legal sanity, is that right?
A. That's correct, sir.
Q. Now, exactly what is your definition of legal sanity?
A. Being accustomed to testifying in Criminal Court, I guess I used that definition. Legal sanity is one who fulfills the McNaughton Rule, that is, knowing right from wrong, the ability to choose right from wrong, and knowing the consequences of his acts, and to assist his counsel in his defense.
Q. You follow the McNaughton Rule?
A. Yes, sir, I think this is the only thing the courts will accept.
Q. Now, Doctor, under sodium Pentothal, the drug that you used . . .
BY JUDGE O'HARA:
Before you get into that, may I ask the doctor a few questions?
BY MR. WEGMANN:
Yes, sir.
BY JUDGE O'HARA:
Q. Would your answer to the last question be the same if the subject was not the defendant?
A. Yes, sir, I think I would. Of course, I think, also, I have elaborated on this subject by saying that this individual was a well-controlled, rational, and well-disciplined individual. I also stated the fact that he was hallucinated, delused [sic], or disoriented.
EXAMINATION BY MR. WEGMANN:
Q. Doctor, isn't it a well accepted fact with regard to this sodium Pentothal treatment that you gave that it not only lessens your inhibitions as to expressions of fact, but also as to expressions of fantasy and suggestion?
A. That's quite true. But it depends upon the person conducting the test, or treatment, if you want to use that word, to segregate the facts from the fantasies, and if you have had enough experience, you can do this. Just as I stated when I first took the stand that it is quite possible for these people to fake this test. It's quite possible for them to lie, and it's quite possible for them to have fantasies. But it's up to the individual who is doing the test and is experienced as to be able to define whether he is faking, lying, or in the state of fantasy. Now, we don't use the term, "truth serum." This is a misnomer. I think the laymen picked this up and gave it the label, "truth serum," because they felt when an individual was put under a short-acting phenobarbitol such as sodium Pentothal or sodium amytol or suritol, they have a tendency to tell the truth.
Q. Now, Doctor, I understand that you are not a psychiatrist, that you are a medical practitioner.
A. That's right.
Q. Isn't it a fact, Doctor, that there is disagreement amongst the psychiatric profession and the medical profession as to the reliability of information which is obtained while under the effects of this drug?
A. Now, you stated, Mr. Wegmann, isn't it a fact. I would say it is not a fact. There is disagreement maybe, but not between the medical profession and the psychiatric profession. It's the same. To be a psychiatrist, you have to be in the medical profession, but in different fields, I take it is what you meant. Sodium Pentothal is used quite frequently by some people doing psychiatric specialties and others don't. Some people in the psychiatric field swear by electric shock. Other people think it's outmoded and outdated. They would rather rely on the hemotherapy, such as the tranquilizers, etc. When we get into this field, it's like saying two lawyers; you all have been arguing all day long. One is looking at one set of rules and regulations and this is your opinion. And then the district attorney comes up with his rules and regulations and that's his opinion.
Q. Do I interpret you correct then that it is a matter of opinion amongst the medical profession?
A. No, it's not a matter of opinion; it's a matter of choice. And that's what you were doing. You were choosing a particular law that you thought fit. They chose a particular law that they thought fit the situation. So it's a matter of choice.
Q. Doctor, my notes are that you gave him the test on the same day that you first met Russo, is that correct?
A. Yes, sir.
Q. Now, how long had you talked to Russo before you administered the test?
A. I would say close to an hour.
Q. And that was the only time in your life that you had seen Russo?
A. Yes, sir.
Q. And you testified yesterday that the evaluation of this drug depends to a great deal upon how well the observer knows his subject, is that correct?
A. That's correct.
Q. So when you administered the drug the first time, you had only observed him for an hour?
A. Well, that sounds like a very short time. And I agree with you. And this is what you're trying to bring out. And I'm not going to quibble about that. I didn't spend a week, I didn't spend a month with this man. I spent an hour with him. But, you must remember this, Mr. Wegmann, after seventeen years of experience in dealing with this type of work, you do get to be able to break down the fine points in a short time, and, though I spent an hour with him, I went through quite a bit of his background.
Q. I'm not challenging you.
A. I know that; I'm just explaining it.
Q. But you haven't known Russo for seventeen years; you had only known him a short time.
A. You're right.
Q. And as I understand it, you have only known Russo since when? What was the first time that you saw him?
A. February 27th.
Q. And your sole relationship with this man was between the 27th of February and March 12th? As I understand it, you have not examined him since March 12th?
A. That's correct. I've spoken with him since then. Yes, sir.
Q. But you have not psychiatrically examined him?
A. No, sir. That's correct.
Q. What time on Sunday was this hypnosis performed, Doctor? Approximately what time.
A. I can remember because I almost missed my lunch. We met at 10:00 o'clock [sic] in the Coroner's Office, and it was about 3:00 or thereafter. And it was very vividly because I was trying to get up to Jesuit High School. They were having a meatball and spaghetti dinner for the seniors, and I got there too late. They even closed the doors. And they were closing down at 3:00 clock [sic], so it was after 3:00 that I got there. So, I can remember the time interval very vividly.
Q. And you were the only qualified medical practitioner in the field of psychiatry who was present?
A. I wouldn't say that. I think Dr. Fatter has -- he has to be qualified -- I don't know whether I can state that fact. Let's say this. I have been qualified in the field of psychiatry on other cases and in this case, too. But as to Dr. Fatter's professional ability and his qualifications, I think that depends on the Court.
Q. Dr. Fatter was present only for the hypnosis. He wasn't present for the sodium Pentothal, was he?
A. That's right, yes, sir.
Q. As I understand it, Doctor, it's entirely up to the, I'll call him the operator, to separate the truth from the fantasy, is that correct, during these tests?
A. Yes, sir, and this is based on his knowledge and his experiences. I think it would be the same thing, again, I use you as an example, not meaning you as an individual but collectively. When an attorney sits down with his client and he begins having an interview with him, you can tell rather quickly as to the background of this individual, the veracity of the individual, and you can come to a conclusion of this individual's personality real fast, I am sure of that, because you have had quite a bit of experience, Mr. Wegmann.
Q. That's all, Doctor.
* * * REDIRECT EXAMINATION * * *
BY MR. OSER:
Q. Now, Doctor, Mr. Wegmann asked you a question in regards to your administering the test of sodium Pentothal, speaking of the area of . . .
A. I didn't hear you, Mr. Oser.
Q. I say, Mr. Wegmann asked you a question in regards to the test that you administered of sodium Pentothal, in the area of fantasies, whether or not this individual could be faking or whether or not this could be a fantasy. What is your opinion, Doctor, as to whether or not Perry Russo was a fantasy [sic] or whether he was faking?
BY MR. DYMOND:
Your Honor, we object. This is something that is completely within the province of this Court. No expert can be placed on the witness stand in a case like this and be asked to pass upon the veracity of a witness, which is what this amounts to.
BY JUDGE BAGERT:
I thought the question, now, if I'm in error, let me know. I thought that the question was directed to whether the physician and the expert thought that he was feigning or faking the effects of Pentothal, is that right?
BY MR. WEGMANN:
No. Can we have the question?
(QUESTION READ BY THE COURT REPORTER.)
BY JUDGE BAGERT:
I think you have to take the fantasy out. If you take the fantasy out, we'll let him answer it.
(QUESTION READ BY THE COURT REPORTER.)
Q. Now, Doctor, the defense asked you on cross examination the question about the test that you administered under sodium Pentothal, and about whether or not the subject could be faking. What is your opinion as to whether or not Perry Russo was faking and/or malingering?
BY MR. DYMOND:
If the Court please, we object on the grounds that this is not proper redirect examination. On cross examination we did not cross examine Dr. Chetta on the question of whether or not this witness, Russo, was feigning or faking being under the effects of sodium Pentothal nor hypnosis.
BY JUDGE BRANIFF:
As a matter of fact, that question was asked and answered by the doctor on direct examination.
BY MR. WEGMANN:
We didn't cross examine him on it.
BY MR. OSER:
There are three points, gentlemen. One, the defense asked about fantasy. By this they were inferring that it had been a fantasy on the part of Russo. Two, the defense questioned the interpretation of the test by the doctor when it was asked by Mr. Wegmann how long did he interview the doctor, I mean, how long did he interview Russo prior to administering the drug. Third, the defense asked about the qualifications of the operator, as Mr. Wegmann called him, or the administrator of sodium Pentothal. Now, I think the doctor now has the right to go into whether or not he thinks he was malingering.
BY MR. DYMOND:
If the Court please, none of those questions pertain to the issue of whether this witness was feigning being under the influence of hypnosis or sodium Pentothal. And you would have to stretch it pretty far to feel that they were aimed at that. They were not asked in that manner.
BY JUDGE BAGERT:
We feel that the question has already been answered on direct examination.
MY MR. OSER:
No other questions.
BY MR. WEGMANN:
That's all, Doctor.