False Witness

by Patricia Lambert

  Toward the end of Russo’s cross-examination, Dymond addressed the nature of the plotting session. “Was it understood,” he asked, “that these three men [Oswald, Ferrie, and Shaw] would actively participate in the assassination?” “I did not get that impression,” Russo replied. Dymond directed his final questions to Russo’s encounter with the defendant on Shaw’s own doorstep shortly before his arrest. Russo admitted that knocking on Shaw’s door had been “a risky thing” to do. He was “sure” Shaw recognized him, Russo said, and insisted he had “absolutely” no trouble identifying Shaw.10 That ended it. Dymond had taken a toll, but Russo had survived.

  The next two witnesses, Drs. Nicholas Chetta and Esmond Fatter, over strenuous defense objections, vouched for the credibility of Russo’s story and his mental health. Dr. Fatter described hypnotizing Russo and declared that the hypnoses refreshed Russo’s memory. Cross-examining him, William Wegmann asked if Russo was under the doctor’s posthypnotic suggestion while on the witness stand. “He could have [been] if he accepted the suggestion,” Fatter replied, giving no indication that his actions might have been inappropriate. Dr. Chetta stated flatly that Russo fulfilled “all the requirements of legal sanity.” Chetta, too, recounted the three hypnosis sessions and, as oblivious as ever, declared that repeated hypnotic trances induce “better recall.” As for sodium Pentothal, he explained that it produces “a drug-induced state of hypnosis.” While admitting that a subject “can lie” while under its influence, he claimed that if the administering physician was experienced in using it that he could “pick up the fallacies.”11

  A leading expert in the use of sodium Pentothal, psychiatrist Edwin A. Weinstein, was so troubled by Dr. Chetta’s testimony that he answered him in a piece in the Washington Post. Chetta, he wrote, was “grossly distorting the medical facts” about both hypnosis and sodium Pentothal. Under their influence, “subjects may give highly fictional accounts of past events and describe incidents that never happened.” The action of the drug on recall, he explained, “is profoundly influenced by the stress of the situation in which it is administered and the relationship between the subject and his questioners.”12* But the court didn’t hear Dr. Weinstein. The court heard Dr. Chetta.

  His reassuring testimony took place Thursday afternoon. That same day, at Orleans Parish Prison, a brand new eleventh-hour witness was about to emerge. Inmate Vernon Bundy, a twenty-nine-year-old narcotics addict, had written a letter to the court saying he had information. He was interviewed in prison that evening by William Gurvich and two other Garrison aides.13 The next day Bundy told his story again, this time in the D.A.’s office to Garrison himself. Afterwards, Garrison ordered a curious sort of lie-detector test.

  Asst. D.A. Charles Ward arrived at the polygraph office with Bundy in tow about noon. Ward told examiner James Kruebbe that Bundy might testify in court that very day and then he gave Kruebbe what Kruebbe later termed “peculiar” instructions. Ward told him to find out if Bundy was acting on instructions from anyone,* and if “certain information” that Ward refused to divulge, which Bundy had given Garrison about Clay Shaw and Lee Harvey Oswald, was true. Withholding the central information from the examiner was unusual, but Kruebbe administered the test anyway. Immediately afterwards, he went upstairs to the district attorney’s office and in the presence of Charles Ward and James Alcock told Garrison that Bundy “wasn’t telling the truth.” But, Kruebbe said, “no one put him up to it,” that Bundy “was doing it of his own accord,” and he was “looking for something.” (That something, Kruebbe later said, was “out of prison.”) Kruebbe listened as Garrison and his two aides argued. I told you so, is how Ward and Alcock reacted. They insisted that Bundy “wasn’t necessary” to establish “probable cause” and shouldn’t be used as a witness in any event. Garrison disagreed strenuously, and he had the final word. “We didn’t tell him what to say,” Garrison declared, “let the jury decide whether or not he’s telling the truth.”14

  A short time later, Garrison entered the crowded courtroom for Friday’s afternoon session. His sunburn was beginning to peel and he was looking fit. It was his first appearance since Wednesday morning. His presence brought an excited buzz from the audience, which realized that his arrival signaled “another major happening.” Vernon Bundy’s name was called and a stocky black man in a plaid shirt walked quickly to the stand, raised his hand, and swore to tell the truth.15

  As Garrison led him through it, Bundy told the following story. One Monday morning in June or July 1963, he was near the seawall at the Pontchartrain lakefront about 9:15, preparing to give himself a heroin fix, when a black four-door sedan pulled up and parked. A tall white man with grey hair wearing a suit and tie emerged. “It’s a hot day” he said, as he passed behind Bundy. The man then walked away from Bundy a distance of some twenty or twenty-five feet. About “five or seven minutes” later he was joined by a “young fellow” who arrived “on foot.” The young man needed a shave and haircut and Bundy referred to him as a “beatnik.” Bundy watched the two men talk and heard the young one in an “outburst” say, “What am I going to tell her?” The older man replied, “Don’t worry about it. I told you I’m going to take care of it.” Bundy claimed he then saw the older man hand the other one what looked like “a roll of money.” The young man stuck the money in his pants pocket and Bundy noted that in the same pocket the man was carrying what looked like “pamphlets.” After a while, the two men left, going their separate ways, and Bundy injected his heroin. Afterwards, looking for something to wrap his equipment in, he retrieved a yellow paper from the ground with “something about Cuba written on it.”16

  Garrison showed Bundy photographs of Lee Harvey Oswald, whom Bundy identified as the younger man, and Clay Shaw, who Bundy said was the other one.* Then, following the same instructions that Garrison had given Russo, Bundy stepped down from the witness stand, crossed to the defense table, and placed his hand above Clay Shaw’s head, identifying him as the man he saw with Oswald.

  On cross by Dymond, Bundy admitted that he sometimes stole to support his drug habit, that he was presently serving time in the parish prison, and that he was uncertain about the month and the time of day that he witnessed the encounter at Lake Pontchartrain. But, like Russo, Bundy stuck to his basic story.

  A series of exhibits were entered into the record. Then Asst. D.A. Alvin Oser rested Garrison’s case against Clay Shaw.

  Irvin Dymond attempted (for the second time) to introduce the Warren Report into the record, but the court, by a two-to-one vote (Judge O’Hara dissented), rebuffed him. Dymond then rested for the defense.

  William Wegmann, in what the local newspaper would describe as “an impassioned summation,” attacked the case the prosecution had presented, declaring it failed to justify holding Shaw for trial. “At best it’s evidence that might warrant further investigation, but it was not sufficient to say to this man, ‘You are one of the people who might have killed the president of the United States.’ ” And if the court did so, it would be subjecting Shaw “to all kinds of ridicule and risk.”* Summarizing for the prosecution, Asst. D.A. James Alcock said the state was basing its case on the testimony of its two key witnesses, Perry Russo and Vernon Bundy.17

  James Kruebbe, learning from a newspaper account what Bundy’s “certain information” was, found it ridiculous and was shocked that Garrison had actually put him on the witness stand. His doing so exemplifies much.

  The three-judge panel deliberated thirty-four minutes. Shaw smoked, drank water, and walked aimlessly around the defense table, the strain of the past few days etched in his grim expression and the circles beneath his eyes. In his courtroom demeanor, he had followed the instructions of his lawyers, but had found it “very difficult” to sit listening to the accusations made against him “without showing any emotion.” Shaw realized that those who knew him would reject Russo’s testimony, knowing “that I would have better sense than to plot with two nuts like that in the presence of a twenty-two-year-old b
oy I’d never seen before.” Bundy’s testimony struck Shaw as so improbable that Garrison’s introducing it seemed to him “almost a contemptuous gesture toward the judges.” Shaw still “hoped against hope” that the case would end here.18

  When the panel returned, Shaw stared straight ahead as the presiding judge read the unanimous verdict. Probable cause had been established; further legal steps were justified.† Clay Shaw would stand trial for having conspired with David Ferrie, Lee Harvey Oswald, and others to kill President John F. Kennedy.* It was Clay Shaw’s fifty-fourth birthday.† He was admitted to Southern Baptist Hospital the following day for rest and treatment of chronic back trouble. His calm outward appearance masked a fierce internal turmoil. “It was like living a nightmare,” he later told a friend, “like the end of the world.”19

  In the hallway outside the courtroom, Garrison was asked for his reaction. “The judges have made the statement,” he said. “Is there anything else to say?” Garrison had won a substantial victory. The ruling, as one writer observed, “made him a national media celebrity” and “gave an aura of substance to his conspiracy solution.” This moment was the high point of his career. Yet Garrison had presented the court with no substantive evidence of conspiracy and none whatever of an overt act in furtherance of it, a requirement under Louisiana law. Many found Bundy’s testimony, as Shaw had, almost laughably improbable.‡ The three judges were well aware of the shortcomings of Garrison’s evidence. One of them, Malcolm O’Hara, in a conversation with a Life representative four days after the verdict “continuously referred to the hearing as: ‘that shit last week.’ ”§ Judge Bagert defended their ruling, claiming if they had cut Shaw loose, “the nation and the world would have charged a fix.” Irvin Dymond believed nothing could have prevented the outcome, that it was “a done deal” from the beginning. It probably was. “The decision is cut and dried,” Perry Russo later said he was told beforehand, “unless he fell absolutely to pieces on the witness stand.”20

  James Phelan now had the answer to the question his editor posed when Phelan called him from Las Vegas. He knew what Russo would say under oath. Phelan’s next step was to confront Garrison and “get an explanation.” He called Garrison at home, said he was bothered by something, and Garrison invited him over. Phelan found Garrison spending the evening with his wife and children. Almost immediately, William Gurvich and his wife showed up. Phelan explained that Sciambra’s first report “contained nothing about a party, a plot or a Bertrand.” Garrison’s “jaw dropped.” “It doesn’t?” he said. “That’s when I knew he hadn’t read it,” Phelan later said. “I thought, oh man, what are you doing? You’ve arrested the man. They’re going to hold him to trial and Garrison never even read the basic document. I said, ‘No, it doesn’t.’ He said, ‘Well, I’ll have to get Sciambra out here to explain it.’ ”21

  Garrison telephoned and Sciambra arrived straight away. The women were shooed out of the study and Garrison said to Phelan, “Tell him what the problem is.” Phelan did. “You don’t know what the shit you’re talking about!” Sciambra said. “Yes, I do,” Phelan replied. “I got a copy of your memorandum. It’s down in the hotel safe. I’ve read that memo so many times I can almost recite it verbatim for you. And I’ll make a bet with you. If there’s anything about a plot to kill Kennedy in [it], I will resign from the Post. If it isn’t there, you resign from the D.A.’s office.”22

  Sciambra backed off right away. He had been busy with a lot of other things and maybe, he said, “I forgot to put it in. But, Jim, you remember when I came down from Baton Rouge, I said, ‘Boy, when I tell you what I got you’re gonna kiss me.’ That’s what Sciambra said. And Garrison didn’t back him up. Garrison didn’t say anything,” Phelan recalled. “He just sat there and listened to the whole thing.” Sciambra and Phelan continued to argue with escalating ferocity until the meeting broke up. When Phelan departed, the hostility was unresolved, and so was the issue that had brought him to Garrison’s home.23

  Phelan had taken a cab out, so Gurvich drove him back to his hotel. Gurvich had sat silently in the corner of Garrison’s den listening and saying nothing. But on the drive into town, he revealed how terribly upset he was. “Russo’s the whole case,” he told Phelan. “And you just shot him out of the water. I sat there and listened to [Sciambra] telling you he had so many things to do. That memo was the most important thing [he did]. He wrote it, rewrote it, polished it. For him to say that he forgot to put the plot to kill Kennedy in it just won’t wash . . . I’ve had some doubts about this case but it’s over [for me] now.”24

  Garrison himself had said little that night and his reaction to Phelan’s bombshell was unclear. The next day he clarified it. He called Phelan, invited him to lunch at Broussard’s, and spent the time trying to convince Phelan that Russo was “okay.” But Phelan knew what he knew. “You’ve got a suggestible witness,” he said. “Well, that’s no problem,” Garrison said. “We don’t make suggestions to witnesses.”25

  Phelan was determined to cover all bases. So after lunch he hunted down Sciambra at Tulane and Broad and asked to see his original notes from the first interview. If the notes contained the information missing from his memorandum, then, Phelan said, he would agree that Sciambra had merely forgotten to include it. Sciambra said that, after typing his report, he had “burned” them. Phelan then asked to talk to Russo. Sciambra arranged it. Phelan drove straight to Baton Rouge, taking with him photographer Matt Herron.

  At Russo’s apartment, after some conversation, Phelan handed Russo Sciambra’s memorandum and told him what it was. Then he said, “I’m gonna use it in the Post. Tell me if there’s anything wrong [with it].” Russo read it through, made four minor corrections and said nothing about anything being omitted. “Then you first related the assassination plot when?” Phelan asked. “Down in New Orleans,” Russo replied. After they left, Phelan said to Herron, “Did you hear that?” “Yeah,” Herron said. “Burn it in your head, kid,” Phelan told him, because someday “I’m going to have to tell this story and you’re my witness.”26

  Phelan flew back to New York on March 23, taking with him the full documentary record of Russo’s interrogations prior to the preliminary hearing.* He told his story to Don McKinney and Otto Friedrich, showing them copies of the documents, and related it to others in a series of meetings with staffers and lawyers. It was not the story they wanted but there was never any doubt about their publishing it. “Rush to Judgment in New Orleans” was featured on the May 6, 1967, cover of the magazine, with the caption, “A PLOT TO KILL KENNEDY? The story behind the New Orleans investigation.” Garrison finally had his national cover story, though it was a far cry from what he had in mind.

  The article recapped Phelan’s experiences with Garrison in New Orleans and Las Vegas, detailed the peculiar course of Garrison’s probe and the odd assortment of characters involved, and noted the fertile field Garrison was working. In the latest poll only 36 percent of the public believed that Oswald acted alone. But the centerpiece was Perry Russo’s evolving testimony, Moo Moo Sciambra’s memorandum, and the conspiracy party he “forgot” to include. Using Garrison’s own material, Phelan had exposed the empty foundation of Garrison’s case against Clay Shaw. Garrison made no public comment about the article, but expressed his outrage in private. “Garrison said Phelan fucked him,” Russo later stated. “He was real pissed about [Phelan] turning on him.” Garrison said they had been friends for years and Phelan was now complaining about “technical points.”27 Ever Garrison’s point man, Andrew Sciambra blasted Phelan in a televised statement that was published in the newspapers. Calling the article “incomplete and distorted,” Sciambra challenged Phelan to repeat his charges in front of the New Orleans grand jury.

  Phelan’s article should have felled Garrison’s case but it didn’t. “I knew that if Garrison were honest and responsible, that he’d have to withdraw the case, he’d have to kill it,” Phelan said.28 It was reasonable to think so. It seems unlikely that any district
attorney in any other major city in the United States would have gone forward under the circumstances. If nothing else, public opinion, the local news media, or prevailing political forces would have intervened. But in New Orleans, where the two newspapers spoke in unison, where Garrison’s power surpassed even the governor’s, and where unethical, irrational behavior by elected officials was rooted in the region’s historical DNA, the hole Phelan had exposed was first denied and then ignored. No editorials demanded an explanation. The citizenry didn’t complain. No civic leaders called for an investigation. Many simply believed Garrison could do no wrong. For those who knew better, his past victories over the judges and others had demonstrated what could happen to those who criticized him. No one wanted to lose their job.

  As for his supporters outside New Orleans, some were disillusioned but probably not many. For Garrison’s appeal had never been to logic but to the passions vested in the assassination of President Kennedy. That was the source of his strength and the reason he was, and still is, held to a lower standard. It is also why many were willing to give him the benefit of the doubt where Russo was concerned, to wait and see what additional evidence he presented at the trial. Garrison had tapped into a national wellspring of emotion that protected him like a Teflon shield.

  Garrison himself reacted to Phelan’s article the way he had to Phelan’s visit after the preliminary hearing. It was another problem to be dealt with. Garrison kept his head down, sent Sciambra out to dissemble, and pretended nothing had happened. It worked.

  Garrison survived disaster again.