False Witness

by Patricia Lambert

  Phelan also was having difficulty piecing together a coherent picture. He had heard nothing solid, he told Garrison, nothing that he could possibly write. He continued to press for evidence. “It doesn’t hang together,” Phelan insisted. Garrison replied that it did. He then retrieved a fat manila envelope covered with stamps from the dresser, tore into it, examined the documents inside, and handed two of them to Phelan. They contained the information that his witness would give at Shaw’s preliminary hearing the following week, Garrison said, and only his key aides knew about it. This witness tied everything together, Garrison stated. “He’s my case against Shaw.” Garrison told Phelan to read the documents that evening and then he would see the whole picture. They would meet the next morning, Garrison said, and see if Phelan had changed his mind.16

  Phelan left with his expectations climbing again. For the past two weeks people throughout the world had been wondering what it was that Garrison had discovered. And I had the answer, Phelan later said, in my pocket. As he walked back to the Dunes, Phelan considered the possibility that Garrison had been teasing him—feeding him peripheral information while deliberately withholding the central evidence. Then, at the end, delivering the goods. This wishful thinking would soon evaporate.17

  The two documents Phelan took away from Garrison’s hotel room that night described two interviews with Perry Russo. One was Andrew Sciambra’s 3,500-word memorandum detailing his first conversation with Russo in Baton Rouge on February 25. The other was a thirteen-page transcript of Russo’s March 1 interview conducted by Dr. Fatter while Russo was hypnotized. Phelan read the documents through once. Then, incredulous, he read them again. Finally, he read them a third time. He said later that after reading all the material (about 6,000 words) the first time, “I thought I must have missed something. I went back and read it again” and experienced “an epiphany.” He was up all night. “I kept reading them and then going back and checking them, and reading, and checking, and reading.” What he realized as he pored over those pages, he said, “knocked me out of my chair.” What he realized was that the incriminating story Perry Russo told under hypnosis about hearing Ferrie, Oswald, and Shaw plotting the president’s murder in Ferrie’s apartment was entirely absent from Russo’s first statement in Baton Rouge. And the omission could be no mere oversight, for the memorandum specifically stated that Russo had seen Clay Shaw twice and described those two occasions. The plotting session wasn’t there.18

  It was clear to Phelan, who was knowledgeable about hypnosis, its suggestibility and the neutral questioning it required, that the third Shaw sighting, the one at Ferrie’s party, had been developed during Russo’s hypnosis session by the leading questions posed by Dr. Fatter.* The hypnosis transcript, Phelan noted, “discredited Russo as a witness” and the Sciambra memorandum “directly impeached him.”19 It was inconceivable to Phelan that Garrison had arrested Clay Shaw on the basis of these statements by Russo. Yet Garrison had said it himself: “He’s my case against Shaw.” At that moment, Phelan was the first person outside Garrison’s inner circle to learn the identity and story of Garrison’s confidential informant. He also was the first person, inside or out, who recognized and could prove the enormous injustice underway in New Orleans.

  Phelan arose the next morning with his mind “reeling,” wondering what he should say to Garrison. “I’m there representing the Post,” Phelan explained later, “and I got a hell of a story, but I know the story they want, and I ain’t got it; I got something else.” So he called his boss, Don McKinney, and told him he was in Las Vegas with Garrison and “yes it was wonderful but the story ain’t what we thought.” He then summarized the situation, explaining that he was due to meet with Garrison at ten o’clock. McKinney said he wanted to speak to Managing Editor Otto Friedrich and told Phelan to call back in thirty minutes. Friedrich, Phelan knew, “thought there was something wrong with the Warren Report” and wanted the other story.

  The message from Otto Friedrich was not a happy one. “Otto was kind of pissed off at me,” Phelan said later. When he called again, McKinney passed on the message: “Otto says, ‘Tell Phelan to let Garrison make his own case.’ ” Keep quiet, in other words. Russo had told two different stories, McKinney said, and the question is: what will he say under oath? McKinney told Phelan not to confront Garrison—to wait and see what Russo said on the witness stand at the preliminary hearing. “Then we’ll take it from there.” Phelan had received his marching orders.20

  When he handed the documents over, Garrison had put no restrictions on them. So Phelan arranged to have them copied at the Desert Inn, which was just across the street.21 By the time Phelan returned the documents to Garrison that day, he had figured out something to say. He told Garrison that Russo was “quite some witness” who “was carrying a hell of a case for a solitary witness.” Garrison replied that arresting Shaw was his decision alone and that some of his aides had opposed it. “This is not the first time I’ve charged a person before I’ve made the case,” he admitted. But Shaw was now in “the sweatbox,” he said, and eventually he would “break down and tell me everything.”22

  “This was a Garrison I had never seen before,” Phelan would write, “arrogant, prejudicial, blindly confident that whatever he suspected had happened had to have happened.” Before he left, Phelan asked Garrison why Ferrie and Shaw, whom Garrison had portrayed as cunning and cautious, had run the risk of discussing their plans to assassinate the president in front of Russo. How did they know Russo wouldn’t go to the FBI and reveal what he had heard? Garrison shook his head. That hadn’t occurred to him. It was, he replied, “a good question.”23

  Phelan flew home for a few days’ rest before returning to New Orleans for the preliminary hearing. Along with Garrison’s documents, Phelan took with him a rock-solid certainty that Garrison’s case against Shaw was a fraud. Phelan also assumed it would come to an immediate halt once Garrison knew what he knew and realized the truth about Russo’s testimony.

  Garrison stayed in Las Vegas a full week, departing March 11. While there he remained in control of operations in New Orleans. He ran up a phone bill of 125, large for those days, staying in close touch with his men who were busy preparing Perry Russo for his upcoming appearance at the preliminary hearing.24 Before he took the stand, Russo would undergo an incomplete lie-detector test, a second hypnosis interview, a third hypnosis interview, and a rehearsal.

  Roy Jacob, a Jefferson Parish Deputy Sheriff, administered the polygraph. When asked if he knew Clay Shaw and Lee Harvey Oswald, Russo’s “yes” answers indicated, in the language of the trade, “deception-criteria,” and his responses in general caused Jacob to suspect he was dealing with a troubled personality. Jacob conducted the test in the office of Leonard Gurvich, younger brother of William Gurvich and, like him, a dollar-a-year investigator for the district attorney’s office. Leonard Gurvich waited outside during the test. When Jacob came out, he said to Gurvich, “Lennie, we got problems.” Russo had told Jacob that the story “wasn’t true,” that he was “just trying to help Mr. Garrison” because he believed in what Garrison was doing. Like Jacob, Gurvich was shocked. Jacob left to find Andrew Sciambra. Russo, alone momentarily with Gurvich, told him he was “confused” and “shook up” and didn’t know what to do. “Tell the truth, Perry,” Gurvich advised. “You can’t get in trouble if you tell the truth.” Jacob returned with Sciambra; the testing was over. Garrison’s men took away Jacob’s list of questions and instructed him not to tell anyone what had happened.25

  The next day Garrison tried another tack. He turned to Dr. Fatter who again hypnotized Russo. Fatter gleaned only a single new piece of information and it echoed a story in the New Orleans newspapers the week before. The article had described Clay Shaw’s presence at the San Francisco World Trade Center the day President Kennedy was assassinated. When hypnotized this time, Russo stated that at the assassination plot party “Clem Bertrand” had said that when the president was shot he would be “on the Coast.”26 Ga
rrison ordered a third hypnosis three days later. Again, Fatter elicited only a single new item of interest. Russo explained why “Clem” planned to be on “the Coast” that day: Ferrie said they should be seen “in public” in order to “establish alibis.” Ferrie stated that he “would be making a speech” at Southeastern College. “Leon,” though, said nothing.27 (No one in Garrison’s camp seemed to notice that these “alibis” made no sense, that Shaw didn’t need to travel 2,000 miles to be in the public eye, and Ferrie arrived at Southeastern College two days too late.)

  The important part of this third hypnosis came at the end, in Dr. Fatter’s final instructions to Russo. He told him that “anytime” he wanted to, he could become “calm, cool, and collected” and do the “task” he had come there to do. That his memory would become “acute”; “things will seem to pop into” his mind and he could “permit these [stories] to come into” his mind “exactly” as he “had seen them.”28 This posthypnotic suggestion would serve Russo well when he testified two days later.

  The night before the preliminary hearing, Garrison arranged for Russo to be taken to the Ramada Inn on Tulane Avenue for a final briefing by Lynn Loisel, Al Oser, James Alcock, Louis Ivon, and Andrew Sciambra. Russo said later that he was asked “to repeat things over and over and over. Rat-a-tat, rat-a-tat . . . non-stop.” Garrison’s men were all “wearing their guns.” Sciambra at one point “had his out” and was “wavin’ it around and saying what this was going to do to Shaw and how it was going to force the government to admit it had lied to America about Kennedy’s death.” Until then, Russo said, he liked Sciambra but his behavior that night gave Russo “a funny feeling.”29 It was Sciambra, Russo said, “all excited like he was playing Dick Tracy,” who gave Russo the transcript of his hypnosis sessions to read. “He would ask me the questions like Dr. Fatter asked me.” “It was like a script to play,” Russo said. “In other words, you play Hamlet and I’ll play Horatio. And you say your lines and I’ll say mine.”30 The grilling continued until Alcock decided Russo had had enough.

  Garrison was leaving nothing to chance.

  * In order to proceed to trial Garrison needed only to file a bill of information on Shaw’s arrest, which he had said he intended to do.

  † Their names were available only in the application for the search warrant on Shaw’s residence. (See note p. 7.) Shaw had not yet been charged formally—he was only booked; and while the information on his Arrest Register claimed he had conspired with “one or more other persons,” they were not identified (New Orleans Times-Picayune, March 9, 1967; Clay L. Shaw, Arrest Register, No. 08051, March 1, 1967).

  * Ferrie told the FBI he skated and Alvin Beaubouef recently confirmed that he did.

  † Garrison never established that Ferrie did anything but spend some time at the telephone. According to Alvin Beaubouef, Ferrie was a telephone addict.

  * Later Phelan would learn about the sodium Pentothal interview and the initial bare-bones reference Russo made to the plot party while drugged.

  CHAPTER EIGHT

  THE PRELIMINARY HEARING

  When the mind is numbed with horror, the heart frozen with apprehension, where does one find words to describe that which is almost indescribable?1

  —Clay Shaw (journal entry), March 1967

  Let this gentleman walk out of here without this stigma.

  —William Wegmann (to the Court),

  March 17, 1967

  They say the atmosphere was festive the day Clay Shaw’s preliminary hearing began before Judges Bernard J. Bagert, Matthew S. Braniff, and Malcolm V. O’Hara. The media frenzy resembled that at the O. J. Simpson trial in Los Angeles three decades later. Television cameramen and photographers, banned inside the Criminal District Court building, set up shop on the steps outside. Everyone entering or exiting confronted the swarming press gauntlet. Hundreds of spectators appeared, hoping for a glimpse of the principals. Thousands sought the few available seats in the courtroom. Seventy-four were reserved for the press, one for James Phelan.

  Security measures were unusually tight. When Shaw arrived with his attorneys about 10:00 A.M., the Orleans Parish criminal sheriff asked Shaw to enter the building through a side door. Shaw’s attorney refused. His client had done nothing wrong, Edward Wegmann said. “We will go through the main entrance.” But when a gun was found hidden near where Clay Shaw had parked his car, Wegmann changed his mind. Thereafter, Shaw was allowed to drive inside the prison grounds, park next to the courthouse, and use the Sheriff’s entrance.2 Media representatives were photographed and issued passes that were checked at the door. Following a threatening telephone call, all spectators were frisked. Deputy sheriffs posted along the walls of the courtroom kept a close watch on the audience.

  Sunburned from Las Vegas, Jim Garrison showed up with two investigators, five assistants,* and security on his mind too. He had been saying Shaw was going to commit suicide and it would be good if he did. But now Garrison feared Shaw might try to harm him instead. So he asked William Gurvich to sit between them in the courtroom. It was foolish, awkward for Gurvich, and he objected, but he did it.3

  The first three witnesses testified to technical matters.† Then the state called Perry Russo and everyone learned what Phelan already knew, the identity of Garrison’s mystery witness. Garrison conducted the examination. Russo—“calm, cool and collected”—told the story from his first hypnosis interview, plus Shaw and Ferrie being “in the public eye” the day of the assassination to establish alibis. Phelan listened “with fascination,” he would later write, as “Russo related his marvelously detailed hypnotic vision—the story that differed so greatly from the one ‘Moo’ Sciambra had originally reported.”4 Phelan noted how neatly finished the narrative was. Russo attended the party, heard the plotting, and after Ferrie’s death told Andrew Sciambra about it. Russo gave no hint of its metamorphosis.

  Like a Perry Mason movie where the key witness at a trial points a finger at the defendant and says “he did it,” Garrison’s show had its theatrical moment. But in staging it, Garrison had devised something more devastating than mere finger pointing. At Garrison’s instructions, Russo stepped down from the witness chair, walked across the room to “the rear of Shaw’s chair” and there “placed his outstretched arm over Shaw’s head,” identifying him as the alleged conspirator “Clem Bertrand.” Shaw sat staring straight ahead.5 Russo thus delivered the big show’s big bang.

  Garrison timed it perfectly—court was then recessed for lunch.

  Shaw and his attorneys were completely surprised by Russo’s testimony. Having been denied discovery, and officially informed of Russo’s name only that morning, they had no time to investigate him. During the lunch break, they gathered what information they could, with Salvatore Panzeca and a colleague “doing most of the leg work.” Also during lunch, Shaw told one of his attorneys that Russo’s face “looked, somehow, familiar.” The mystery was resolved that afternoon when Garrison resumed his direct examination of Russo and he described knocking on Shaw’s door to identify him, under the pretense of selling insurance.6

  When Garrison was finished, the defense postponed its questioning of Russo, and court was abruptly recessed at 3:30 that afternoon. That allowed Shaw’s attorneys a few hours to do their best to devise a strategy for their cross-examination. Meanwhile, the local newspapers shouted his name in front-page headlines: HEARD SHAW, OSWALD, FERRIE PLOT JFK KILLING, SAYS RUSSO.

  The following day Russo again took the stand. “Do you believe in God?” asked F. Irvin Dymond, the defense team’s fifty-three-year-old lead trial attorney—a tall, attractive man with a resonant voice, a stately air, and a commanding courtroom presence. The defense had heard Russo was an atheist and was trying to undermine his credibility by showing that the oath he had just sworn was meaningless. “It would depend on the definition,” Russo replied. He then demonstrated an uncanny ability to dissemble. Dymond pressed Russo about his academic and employment records, as well as two audio recordings, tryin
g to prove he had made false or contradictory statements. But Russo’s verbal slipperiness continued to serve him well. “Russo has been extremely well coached,” Clay Shaw noted in his journal that day. “It is going to be difficult to shake his testimony, except for the obvious logical fact that such a meeting as he describes could not have occurred among sensible and reasonable people.”7

  Shaw was correct. Over the next day and a half, the defense was unable to shake Russo’s basic story, though Dymond did elicit some damaging admissions. Yes, Russo said, he had undergone psychiatric treatment from October 1959 until sometime in 1961. He had last visited a psychiatrist around October or September of 1965 and he had perhaps talked to a psychiatrist “on the phone” in 1966. He denied ever trying to commit suicide. Regarding his interview with a Baton Rouge television reporter, in which Russo stated he “had never heard of Oswald” until after the assassination, Russo explained that he did not know Lee Harvey Oswald, that he knew “Leon” Oswald (who was whiskered, dirty and had rumpled hair);* Russo had said earlier that the similarity between “Leon” and “Lee” never occurred to him. When Dymond pointed out that in the same interview Russo had stated that David Ferrie’s remarks about assassinating the president had been made “in a joking way,” Russo admitted that Ferrie did say it “jokingly” during the summer, but later, in September, “things” changed a bit.8

  When Dymond noted that Oswald left New Orleans permanently on September 25 but Russo claimed he saw Oswald in October, Russo stuck to the later date.† When Dymond wondered why Russo had failed to come forward sooner, Russo offered several explanations. He wasn’t one to push himself onto people; Ferrie and the others “did not say anything about Dallas”; “Ferrie was never implicated,” and everyone said Oswald acting alone had committed the crime. Anyway, he didn’t really think the plotting was meant seriously—he had heard many similar remarks from “people on the street” angry about integration. When Dymond suggested Russo had seized upon Ferrie’s death to get himself “a little publicity,” Russo claimed that, until Ferrie died, he didn’t realize the man under investigation was the Ferrie he knew.9