DIRECT
EXAMINATION BY MR. DAVIS:
Q. Doctor,
what is your business and your residence
address? A. 169-llth
Street Q. Doctor,
what is your business or occupation please, just briefly? A. A
specialist in social and health problems including crime and violence,
youth behavior and others. Q. Have you
been subpoenaed in this case as a prospective witness by the United
States Government? Is that correct? A. That is
correct. Q. All
right. Now, in connection with this particular question, you were asked
by Mr. Bailey, or were you asked by Mr. Bailey at any time-to produce
any material in connection with a manuscript or a book or a document of
any kind entitled, "Expert
Witness" ? A. No, he
did ask me personally and through subpoena to produce materials for a
course I have given at the Q. And you
have produced that material? A. Yes, I
did by 10:00 o'clock the following morning. Q. Now, you
understand that there is a request at this time for the production of
material referred to by yourself, I believe, in a press release, and
I'd like to show you this press release and ask if this is the -- A. I'm
familiar with it. Q. You are
familiar with it? A. I would
describe it as an antipress release, but I
am familiar with it. Q. All
right. Now, the one I am holding has a portion on the bottom of the
second page which is called, "Minds on Trial"? A. Yes. Q. Was that
on all of the releases? A. No,
actually it was not a release. It first came about because the reporter
for Newsweek had asked me for some comments and frame of reference on
how expert witness testimony could be evaluated or conceived of and he
agreed not to use my name. As far as I know, he did not, and I prepared
that and I had another request and so I would estimate somewhere
between 10 and 12 people were selectively sent that. It was not
generally sent out. Q. Did you
give a copy of this to Mr. Bailey at any time? A. No, but
I had no objection to his seeing it. Q. Mr.
Bailey, I believe you gave Mr. Bailey one a while ago which was blank
on the second page after the words, "University of THE COURT:
Well, for the purpose of this special hearing, we admit it as the
witness' Exhibit A, I suppose. THE CLERK:
Court's Exhibit A marked for identification. (Court's Exhibit No. A, a
press release, was marked for identification. ) MR. DAVIS:
Q. All right. Now, Doctor, you are familiar with this document so that - A. Yes. Q. -- it
isn't necessary for me to hand it to you at this time - A. No. Q. -- in
order for you to know what I am talking about? A. Not
unless you ask me too detailed questions about it. Q. All
right, I’ll ask you one. The document refers to, it makes this
statement. It says - MR. BAILEY:
Mr. Davis, we would object. I think the statement is much clearer if
you read the entire document. It doesn't have meaning without the
preceding paragraphs. Since I am going to read it if you don't want to,
we will just put it before the court. MR. DAVIS:
Well, if you are going to read it, I think I'd rather read it. MR. DAVIS:
"2/76 -- Joel Fort, M.D., National Center for Solving Special Social
and Health Problems -- Fort Help, "The role
of the expert in criminal cases is not clearly defined, but it
generally means someone with specialized knowledge greater than that of
the person's. The law does not equate it with being a psychiatrist and
people called on to consult or testify could include journalists,
social workers, psychologists, ministers, ex-criminals, and so forth in
addition to hopefully carefully selected psychiatrists. By default and
by professional aggrandizement, psychiatry dominates. In general,
expert testimony on criminal responsibility only occurs where a defense
of insanity (or, in "I. Are
they psychiatrists whose main experience has been either the private
office practice of psychoanalytical psychotherapy, or are they academic
teachers or researchers or are they something else? "2. How
relevant is their background to serious and unusual questions of
criminal responsibility? "3. Has the
expert made herself available for
consultation in an unbiased manner to both defense and prosecution over
the years and in a particular case have they sought out all information
from both sides? Do they search for the truth rather one sidedly search for
victory? "4. Does
the expert regard a defendant as their 'patient' and uncritically
accept everything told them by defendant and lawyer as true? "5. What
impact does the questioning of lawyers and doctors prior to a trial,
especially when this amounts to hundreds of hours,
have on a defendant's version of what happened? "6. How
does the expert balance objective data available such as investigative
reports, confessions, tapes, et cetera, against what was told by a
defendant? Are there selective omissions of data or absence of logic
and common sense? "7. Has
there been collusion (joint reaching of opinions with perhaps peer
pressure within their profession) between the doctors brought into the
case by either prosecution or defense? "8. With
special defense such as (to make one up) 'mind dirtying,' does it exist
because it has been repeated time after time by a writer, lawyer or a
doctor; is it logically inconsistent with other claimed defenses or
with the behavior exhibited by a defendant if it is a concept based on
Canadian sailors in Japan 30 years ago, how does it apply to American
use? Influencing
other American youth in the 1970's; and finally, how many things can
dirty the mind, how long do they last and how can a dirtied mind be
washed?" Now, in
parenthesis, "(These comments are summarized and excerpted from my book
Expert Witness (to be published by Norton and held up by me so as not
to conflict with any pending trials) and from the course material for
'Minds on Trial' which I have given for the University of California)."
And below in this copy, there appears a photocopy excerpted from some
brochure or advertising. A. Yes, Mr.
Bailey has a copy of this which I gave him. Q. All
right. Now, Doctor - MR. BAILEY:
Wait a minute. I think you ought to read that advertisement. MR. DAVIS: " I think
that said, "protection of society." I thought
that's what I said. MR. BAILEY:
You said, "protection of psychiatry." MR. DAVIS:
Well, I meant to say "society," and I'd lay one to ten if you read it
off the record, that's what I said . THE COURT:
Read it right. MR. DAVIS:
All right. "Some of the questions to be explored are can the
potentially violent person be recognized in advance? What does a plea
of insanity really mean? What is the role of the mental hospital? Of the prison? How do our courts take the
responsibility to society with responsibility to the human being who
has killed? Or do they? Lectures by authorities on the mind, the law
and society will be followed by a panel discussion directed toward
integrating the viewpoints presented. "Instructor Joel Fort, M.D.,
specialist in crime and violence and other social problems; expert
witness in trials of Henley (Houston), Kemper, Mullin, Steelman (Stockton) and Manson Watson;
consultant on problems of bureaucracy, human sexuality, public health
and drug abuse to numerous organizations including U.S. Department of
Justice, U.S. Senate, Menninger Foundation and World Health
Organization; founder of National Center For Solving Social and Health
Problems -- Fort Help, San Francisco, and of the first public programs
for those with sex or drug problems; lecturer, school of criminology,
UC-Berkeley; featured in the films "Unreasonable Man" (KQED-TV), 'To
Make A Start In Ending Violence' (KPIX-TV), author of The Pleasure
Seekers and Expert Witness." Now, Doctor, there is a reference here
again to "expert Witness," and I'd like to ask you if there is a book,
"Expert Witness," and if not, what were you referring to when you
referred to, "my book, Expert Witness"? A. There
was a book planned at the time and an outline, which had been written
jointly -- originally by me, and then jointly with another writer and
submitted along with transcripts, excerpts from transcripts from a
variety of trials to two publishers; first Grosset
and Dunlap, and then about last September or October, Norton. What is
the status of that book at this time as far as you know? Simply that
Norton indicated months ago that they did want to publish it, and I
have told them that I had suspended any work on it until this trial was
completed. Q. Did you
have a collaborator in connection with any portions of the material
that you are talking about? A. Yes. The
outline that Norton has, as I mentioned, was written primarily by the
person who at that time wanted to co-author, co-write the book with me. Q. Do you
have, in case question arises, a copy of that outline available? A. Not
here, but there is one available. Q. There is
one available? A. Of the
transcripts, I don't have copies of most of them. There were no tapes
on that. The tapes were from the Minds of Trial Course. Mr. Bailey
already has the tape. Q. And he
also has those books, "Pleasure Seekers" - A. That's
correct. Q. Now,
with reference to the outline, and whatever other material there may be
in the hands of the publisher in line with your testimony, is it your
desire and request that the same not be produced in connection with
this hearing? A. Yes. Q. And do
you object to it being produced in connection with this hearing? A. Yes, I
think it is a totally irrelevant waste of all of our time. Q. Do you
have any other reasons in your mind for asking the Court to sustain
your objection to the use of that material? A. Yes, I
do have other reasons. The outline and the transcripts that I referred
to have no reference whatsoever to this trial. None of the
correspondence relating to it has any reference to it. It all antedated
my involvement in this trial as an independent consultant to the
government. None of the materials could have any degree of relationship
to this trial. Q. Have you
furnished the government with any of that material? A. None
whatsoever. They have never seen it. Q. Any
other reasons that you can think of before - A. It's an
incomplete statement of my thinking, certainly. It is a preliminary
phase, what writers would usually call an early draft or an early
comprehensive outline of a book, which, combined with various
transcripts, would end up in being a book manuscript, And I felt,
paradoxically, in view of the issue that Mr. Bailey has decided to make
out of it, that it was best ignored in this procedure, because it
didn't have anything to do with it. Q. And you
have not used that outline or any of that material in preparing
yourself for being a witness in this case? A. I
haven't looked at it for months, since the time that it went into
Norton. Q. Other
than the fact that you participated in writing it and whatever may be
in it is some part of your mental frame, is that correct
? A. Yes, but
I haven't looked at it since September or October. MR. DAVIS:
-Now, I think, Judge, if I may, I won't ask any more questions, but
since Your Honor brought up this matter of privacy earlier, possibly
these two items ought to be in the record so that there would be some - THE COURT:
I made them available to you for your use, Mr. Davis. Court
Exhibit B marked for identification. (Outline marked Court Exhibit B
for identification.) Q. MR.
DAVIS: Q. By the way, did you ever have occasion to discuss the subject
of this book "Expert Witness" with Mr. Bailey in any way, shape or form? A. Not as
such. Mr. Bailey and I had a number of, up to this point, friendly
discussions, and some of the things that are touched upon there may
have been discussed, but I have never discussed the book per se with
him. I did discuss a subpoena for the Minds on Trial with him and told
him I'd be glad to make those materials available. That's the only
subpoena I ever received. Q. Just one
other thing with reference to that document, that Exhibit A. Would you
please just state briefly how that document came about and to what
extent it was distributed? A. That's
the one you read? Q. Yes,
that's the one I read. A.
Certainly. One of the Newsweek correspondents had asked me for -- and
this was prior to the time when it was known there would be expert
testimony, or where I had agreed to testify at all, and had asked me
for some background material that would be helpful to them in educating
the public or reporting information about expert testimony, if it
should come about. And I drew that up. I had some handwritten notes,
and then I went up -- went to a typewriter and typed up a version of it
and gave it to him by the time he said he needed it. Subsequently,
because I was getting a lot of other requests from people for
information, I preferred not to talk directly to people about the case,
and I did mail the same thing in a retyped form that looked more
legible to, I would say, more than 10 people. I can
't remember the exact number. Q. And just
finally with reference to the production of this material at this time,
is it your feeling that it would be a kind of reverse violation of your
first amendment right, because it would require you to produce
distorted speech and material which at this time is not in the stage
where you would want to produce it? MR. BAILEY:
That's slightly leading. MR. DAVIS:
I intended it to be. THE COURT:
I will overrule the objection. THE
WITNESS: I would not say that would be the way I would have stated my
views. MR. DAVIS:
Q. Would that in substance be an expression
- A. Yes, it
is a fair summary of one of my concerns about it. MR. DAVIS:
Thank you, Doctor. THE COURT:
Mr. Bailey, you may examine Dr. Fort. CROSS-EXAMINATION BY MR. BAILEY: Q. Dr.
Fort, the advertisement for your "Minds on Trial" refers to an offering
for people to come on August 17th and 18th, 1974, correct? A. That was
the first time it was given. That was material put out by the
university itself. I did not write that. Q. I assume
that it was published some time prior to the report? A. It was
not published -- yes, it was published in the sense they sent it out to
their mailing list. Q. Who
determined to set in the same type as other books written by you the
book "Expert Witness" as a representation to the public that you were
an author of such a book? Was that your decision? A. No. I
did not have a chance to proof that or -- what I had done in response
to their questions, Mr. Bailey, was indicate what books I was working
on or planned as well as the books completed. Q. Then
they represented it without your knowledge as a book that is in print,
is that right? A. I don't
know if that indicates it is in print. Does it list a publisher and a
publication date? I don't think it does. Q. Is there
anything in there to differentiate between the books which we know are
in print, and Expert Witness, to an unsuspecting reader? , A. I would
have to say the answer to that is no from the way it is printed, no. Q. Did you
go back to them and say , "You'd better
correct that; I never wrote such a book"? . A. Yes. Q. Who did
you tell that to? A. The next
time the course was given at the Q. The
eight points that you came up with in response to requests from your
seekers in the news media relate pretty directly, and intentionally so,
to the merits of this case, do they not, Doctor? A. I would
say only the last one relates directly to it. The understanding -- the
language as such does not relate any more to this case than any other
case, except for the last point, which could be remotely related to
this case. Q. As to
point No. 1 was
your invitation that a distinction be made between the office practice
or psychotherapy type psychiatrist as against academic teachers or
researchers or administrators any reference at all to the three defense
professors? A. I don't
believe there is any reference there to them, no. Q. That was
not intended. Okay. A. Mr.
Bailey, before I answer your question I have to indicate to you that
those views antedate this trial and have been expressed in many other
circumstances. And I can very properly answer your question that it did
not have specific reference to this trial. Q. The
document was typed for this trial and, indeed, says "Hearst Case,"
right? A. Pardon ? Q. The
document was typed up for this trial and says "Hearst Case," does it
not? A. I think
there -- those two words are contained in one sentence about the Judge
in the Hearst case has not made a decision on expert testimony. I
believe that's the only mention of the Hearst case on that document. Q. That's
right. Now, was your suggestion that the background of the psychiatrist
be examined to see whether he had previously addressed himself to
serious and unusual questions of criminal responsibility in any way a
reference to your many trials and the few of the defense psychiatrists? A. No, I
don't think so, because I do not believe that numbers by themselves are
the important thing. The point I was making there was whether somebody
had some body of experience, some base rate or some comparison that
they could make in evaluating criminal behavior, but I would never base
it just on numbers. Q. Question
4: "Does the expert regard a defendant as their patient and
uncritically accept everything told them by defendant and lawyer as true, " is that any reference to the fact that the
defense psychiatrists all called Miss Hearst a patient? A. No. I
have to say you are partially correct. I did have in mind that at least
one of them did that. I'd have to answer your question no, because I
wasn't aware that all three of them had done that. Q. Did you
suggest in five -- ''What impact does the questioning of lawyers and
doctors prior to a trial, especially when this amounts to hundreds of
hours, have on a defendant's version of what happened" -- did that have
any reference 'to the fact that a Court appointed doctor and two others
have examined Miss Hearst for hundreds of hours? A. It did
not- Q. Before
you did? A. It did
not directly refer to that. It had in mind a frame of reference for
everybody trying to understand expert testimony that would include the
impact of people spending large number of hours with the defendant. Q. Yes. But
your advice to Newsweek and others from the news media was intended to
assist them in digesting and evaluating this case, was it not? A. All
cases. All cases, including this one. Q. Did you
understand their request from you to be a general advice on all cases,
or a request for comments on the Hearst case? A. I
understood their request to be for background information that would be
helpful on this case. I felt a responsibility to give advice would be
useful for all expert testimony. Q. In
question 7 you said, "Has there been collusion (joint reaching of
opinions with perhaps peer pressure within their profession) between
the doctors brought into the case by either prosecution or defense,"
was that any reference to the fact that the three defense psychiatrists
had, in fact, exchanged their views, as they testified? A. No. This
was written before then. It was reference to the fact that I have
experienced over the years efforts made with me and with other doctors
to see defendants or -- yes, whether by prosecution or defense, to see
defendants jointly to form opinions together. And I was seeking to
bring out there that I think it is a very important responsibility of a
consultant or expert witness to reach this independently, rather than
this collaboration with other people . Q. Once
again, you didn't have any reference to the Hearst trial? A. I would
not say that. I say this refers to all trials, including this one. And
my first experience with such a degree of interchange of ideas was back
in 1959 or '60. So this was certainly not a new phenomena
that I was first bringing up. Q. Your
question 8, "With special defenses such as (to make one up), does it
exist because it has been repeated time after time by a writer, lawyer,
or doctor; is it logically inconsistent with other claimed defenses or
with the behavior exhibited by a defendant," et cetera - A. Yes. Q. Did that
by chance have any reference to the Hearst trial and the people who had
testified in it? A. Yes. As
I already indicated in response to your initial question, that one
certainly does have some relationship to it. Q. Did you
mean this document to argue that these doctors with the defense counsel
had made up the defense? A. I did
not mean it to be that. And more importantly, in response to your
question, I did not mean for the press to disclose it. I did not mean
for the press to make an issue out of it. The people that I -- that
received it, I believed, obviously incorrectly, would only use it as a
general frame of reference. In fact, you had warned me that I was
probably wrong on that when I talked about it. Q. After
the fact, I told you? A. Yes, you
did. Q. That was
a very foolish thing to do, did I not? A. Yes, you
did. Q. The one
confidential escapes me if it was ever typed there. Did you ever
indicate to anybody this was to be confidential? A. I did
not, but I did not think it necessary since the first paragraph
exclusively deals at length with the desire not to use it. Q. But also
advertises, in the body of the document, your connection with the
famous trials, which were highly publicized? A. Well,
what you are calling advertising, other people might call otherwise. I
do not agree with you. Q. I am
looking at your ad, "Minds on Trial," which reiterates all of your
involvement in prior trials and was intended to. A. I did
not write that. Q. You didn' t write that? Now, the reason for the subpoena,
Doctor, as you may have deduced, is that you claim, in these words,
"These comments are summarized and excerpted from my book, Expert
Witness, to be published by Norton and held up by me so as not to
conflict with any pending trials, et cetera." Now, the statement - A. Well,
wait a minute. The "et cetera," is very important. It's a compound
sentence. Q. Okay. ".
. .and from the course material" - A. Exactly. Q. -- "for
'Minds on Trial,' which I have given for the A. Exactly. Q. Okay.
Now, these comments you will agree seem to have special application to
the special facts of this case and the people participating in it; do
they not? A. I would
agree that the last one has an application to it. I would not agree
that they overall do. They overall relate to all expert testimony in
cases of criminal responsibility. Q. If you
had, in fact, written a book, "Expert Witness," from which the comments
I have just reviewed with you - A. Uh -huh. Q. -- could
have been summarized and excerpted, that would be quite a coincidence;
would it not? A. I don't
find it a coincidence, no. Q. Have you
ever been involved in any case where mind-washing and mind-dirtying was
an issue except this one right here? A. Yes, two
other ones; one in 1969 and one in 1970. Q. But
you've already admitted here that mind-dirtying refers to this case? A. I didn't
admit it. You are misstating what I said. I said that statement -- if I
can finish -- is the only one that has any specific reference to this
case and it does not directly deal with it. It uses other language and
other concepts, but I had two previous experiences in 1969 and in 1970
with the question of quote brainwashing unquote. Q. In
trials? A. In a
criminal trial - Q. What
were the names? A. The
Manson trial and the Manson Family in Q. Uh-huh. A. --where
this was one of the four areas that I was examined about. Q. I am
familiar with that case. A. And the
second one was the Presidio Mutiny trial held in Q. Doctor,
did your representation that the contents of this document are
summarized and excerpted from your book entirely false or are they, in fact, summarized and kept from the
outline that your publisher is holding? A. You are
misstating it. The sentence is a compound sentence saying summarized
and excerpted from the book. Q. No,
excuse me. A. The book
in, "Minds on Trial. II Q. No, ". .
. from my book, 'Expert Witness,' are your words; are they not? A. That's
the first part of the compound sentence. Q. You mean
it's only half false? A. It's not
false at all. MR. DAVIS:
Judge, may I suggest that, in the heat of the moment, that Mr. Bailey restrain himself from badgering the doctor?
That's really inappropriate, Mr. Bailey. THE COURT:
Yes, let him answer the question and don't interrupt him. MR. BAILEY:
Yes. Q. Now,
Doctor, do you defend now the accuracy of this statement? "These
comments are summarized and excerpted from my book,
‘Expert Witness’ ? A. That is
not the statement that is on the form, but I'll answer it nevertheless.
The statement on the form is, "my book held up,” etcetera, clearly
indicating the book is not available and the sentence goes on, "Minds
on Trial.” Now, to just deal with the
first half of it, although that is incomplete, the outline that I
referred to and the transcripts that I referred to that would comprise
that book if I decide to complete it at some time in the future, do
contain statements on this nature about expert testimony. That is the
general things. They have nothing at all to say about Question" 7,
although it's possible that there is some mention of the Presidio
Mutiny case in the outline, but definitely no detailed discussion of it. Q. Did you
summarize and excerpt your comments from the outline? A. Some of
the comments are contained in the transcripts. I've been asked, for
example, in one that I can think of is the Kemper mass murder trial in Q. Will you
produce the material from which you summarized and excerpted these
highly relevant comments? I have
already given you a good deal of them. A. No, I am
anxious to get the outline which I subpoenaed from your publisher and
which subpoena he has refused to answer, I understand on your advice. A. Just a
minute. You are misstating what I said. MR. DAVIS:
Just a minute, Doctor. Excuse me. That was not a question. That was an
argumentative statement. THE COURT:
I agree. It is an argumentative statement. MR. BAILEY:
Q. Have you talked with your publisher? MR. DAVIS:
And, Doctor, may- MR. BAILEY:
Excuse me. He hasn't answered. Have you
talked to your publisher with regard to that subpoena? MR. DAVIS:
Objection, calling for hearsay. THE
WITNESS: Yes. THE COURT:
Overruled. THE
WITNESS: He did call me and tell me you served a subpoena on him. MR. BAILEY:
Q. Did you tell him not to honor it? I
notice you hesitate, Doctor. A. Well, I
hesitate because I can't answer that with a yes or no. We had a
discussion of it and he raised some First Amendment questions about it.
We both agreed it was not a book manuscript and, as I have testified,
he does not have the transcripts I referred to and you misstated the
question in saying that these comments were in the outline. I never
said they were. I said in the transcripts that accompanied transcripts
from my testimony in a number of cases which accompanied the outline,
and I gave an example of the Kemper case; I do discuSs
questions like this about the relevancy of certain kinds of expert
testimony. MR. DAVIS:
Judge, I'm going to object to Mr. Bailey's what I would call non-verbal
effort to communicate sneers and whatnot to the witness by looking at
his watch, lifting his eyebrows, curling his nose and other things. THE COURT:
No, I'll - MR. DAVIS:
Other non-verbal - THE COURT:
No, we are coming here to recess time and Mr. Bailey is a clock watcher
like all the rest of us. THE
WITNESS: It's not bothering me. That's quite all right. THE COURT:
Proceed. MR. DAVIS:
I withdraw the objection, then. MR. BAILEY:
Q. Did you request Mr. Browning and Mr.
Bancroft to write the Judge to ask that you be heard anonymously in
this case? A. I think
that's a misstatement. Q. Answer
the question. A. I am
sorry. I didn't want to convey inaccurate information. I didn't want to
ask the Judge himself that I be heard anonymously. I asked through the
Judge that reporting take place of me and of other people without
mentioning my name. Q. I am
asking about a letter by Browning and Bancroft to the Judge saying, "We
concur in Dr. Fort's request for an anonymity."
Did you see that? A. Yes, I
did. Q. Was that
written on your request? A. Yes. MR. BAILEY:
I have no further questions, Your Honor. I think at a minimum, the
court is entitled to examine what it was that was summarized in excerpt
that turned out to be so relevant to the Hearst trial for this reason,
Judge: If this man has any bias or prejudice or set views in psychiatry
that could have influenced his opinion, I am entitled to explore them
and it seems to me the writings of an expert are a very legitimate
means of exploring that. THE COURT:
Mr. Davis, do you have -- MR. DAVIS:
I wanted to ask a question. THE COURT:
Go ahead and ask a question and then make your response. REDIRECT
EXAMINATION BY MR. DAVIS: Q. Doctor,
just let me get one thing clear. Your testimony is that the extent to
which any of these matters referred to in this document have any
bearing at all on this case is coincidental rather than intentional; is
that correct? A. That's
part of my testimony. The other part is that the tape I gave Mr. Bailey
or had conveyed to him which includes the entire lecture I have given
on the course, "Minds on Trial," contains everything and anything that
relates to the contents that I have enunciated about objectivity and
background desirable for expert witnesses. Q. Well,
roughly speaking, how many pages does that document consist of, the one
that you gave Mr. Badey? A. Well, I
gave him two books, but the tape I am talking about I would estimate to
be 50, 50 to 60 minute tape recording of a lecture. Q. All
right. Now, is it your testimony that on that tape, on the transcript
of that tape, every possible bias or prejudice that you might have or
thought that you might have with reference to the subject of
psychiatry, lawyers, doctors, and other matters such as those
represented here are reflected in the transcript? A. There is
no transcript but -- unless he is making one, on the tape. Q. On the
tape? A. I
wouldn't say everything, but I would say it's a sampling; it's a very
comprehensive sampling of some of those views. And it
would be sufficient for the purposes indicated by Mr. Bailey if he
wants to go into the area of bias and prejudice in the general field of
law - MR. BAILEY:
I object to the question of the witness as saying that's sufficient,
Mr. Davis. THE COURT:
Mr. Bailey, let him ask the question. I understand. THE
WITNESS: The most specific - MR. DAVIS:
Q. Wait a minute. Would you be good enough to read my last question? (Record
read.) MR. DAVIS:
.I'd better reframe the question. Q. Doctor,
I just want to ask you if, on the transcript, the 50 or 60page
transcript of the tape which you gave to Mr. Bailey - A. No, I
didn't give him a transcript. I gave him the tape and two books that
are used in the course. Q. I see. All right. Then the question is whether, included
in that tape, which is a tape of your voice; is that correct? A. That's
correct. Q. Giving a
lecture? A. That is
correct. Q. Do you
substantially enunciate the various thoughts that you have about the
subject of psychiatry, peer, collusion, the efforts of lawyers to
influence their clients and all the rest of it, is that all more or
less indicated on that tape, your thoughts in that? A. Not all of it, but a good deal of it is, yes. I
would say the most specific reference for examination, if somebody is
concerned about bias or lack of bias, are the specific points
themselves that I raise in this statement attempting to reform press
coverage of important trials. Q. And just
one final thing. In connection with that document, which; you -- I
called it a press release, but it wasn't really a press release, but in
connection with that document where you referred to the influence that
lawyers have on their clients, were you thinking at that time about
your conversation with Mr. Bailey regarding the number of hours that
his people had spent - A.
Absolutely not. Q. -- with
the defendant? Mr. Bailey
and I never talked about that. Q. I see.
Okay. Thank you. Nothing further. MR. BAILEY:
Nothing further. THE COURT:
Any questions, Mr. Browning? MR.
BROWNING: No questions from the Government, Your Honor. THE COURT:
All right. Thank you, Dr. Fort. (Witness
excused.) THE COURT:
The labeling by the parties here has not been a great help,
particularly Mr. Davis' labeling of press release and Dr. Fort's
assumption that everything is there that should satisfy someone else.
These are all problems or matters for the person who has to carry out
his specific duties to undertake to decide and not for either Dr. Fort
nor somebody else to categorize' and as the Judge, I've always been
taught to read through the labels and look at the substance and I am
concerned here that as to what it is we are really trying to find in
terms of a specific document. In other words, I recognize, from Mr.
Davis' point of view, that there must be some specificity on the
document, the basis for the subpoena. MR. BAILEY:
A suggestion that might assist the Court. THE COURT:
All right. Make it. MR. BAILEY:
The subpoena, Judge, named manuscript because the document says "My
book," but it seeks whatever there is. THE COURT:
To that extent the subpoena is deficient. MR. BAILEY:
Yes. MR. DAVIS:
We move to quash it and ask for a ruling quashing the subpoena. THE COURT:
Just a moment. Let Mr. Bailey finish. MR. DAVIS:
Sorry. MR. BAILEY:
In deference to Dr. Fort and his first amendment right to privacy,
whatever that may be, if the Court would examine the documents sought
in camera and make a determination as to whether it might be helpful - THE COURT:
If I knew what it was. MR. BAILEY:
It is a 10-page outline that the publisher refuses to send in response
to the subpoena. I am sure he has a copy. MR. DAVIS:
That's his testimony - THE COURT:
Now you are making an assumption, Mr. Bailey. MR. BAILEY:
I am relying on his testimony, Your Honor. He
says there is such an outline, about 10 pages. THE COURT:
The assumption is that he has a copy. MR. BAILEY:
I said I am assuming that. THE COURT:
That is the assumption that I question, as to whether that is or isn't
correct. I am not saying it is and I am not saying it isn't. My point
is it seems to me that one of the requirements of the rules about
subpoenas is that there is an affirmative duty on the part of the
person seeking the documents to show that the document is there. Now, I
don't deem that you have done that in this case. So therefore, under
these circumstances, while I don 't accept
the proposition that a man can make all these statements about
documents and then say, "Well, I won't produce them," he should be
required at some time to produce whatever he is referring to, and I
don't care what it is, just so he produces it. I think that's the
context in which you asked the question for the subpoena to get the
material, whatever it may be. Is that correct? MR. BAILEY:
Yes. Judge, it certainly wouldn't hasten this trial along, but if we
need to draw a new subpoena based on the testimony he has just given,
we can do it. THE COURT:
Mr. Bailey, I can't change these spots on that. You can do as you see
fit, whether it is by new subpoena or we work out some basis upon which
this will be worked out. I am willing to make an order directing Dr.
Fort to produce whatever he has. That is as far as I can go. I don't
know what that would be. MR. BAILEY:
Fine. THE COURT:
I don't know what it is. I don't mean to say that he has to produce a
manuscript that he doesn’t have.
I am not going to now presume he has anything, because from what I
gather he may not have it. I'm not so sure that he does. These are
matters that I will have to examine further. MR. BAI
LEY: What about the subpoena of the Norton Company? They have sought no
relief from Your Honor. They just ignored the subpoena. THE COURT:
The what? MR. BAILEY:
I subpoenaed a publisher in MR. DAVIS:
Judge, I have never seen the subpoena. I asked Mr. Bailey if he could
show me a copy of it. He doesn't have it. THE COURT:
I am not about to get into that question. You may be correct, Mr.
Bailey. At the moment we have to examine that to see whether or not - MR. BAILEY:
Tomorrow morning I will produce the Marshal's subpoena with the return. THE COURT:
All right. Let me take a look at it and we will see where we are. Mr.
Davis, so you won‘t be under any misunderstanding about the Court’s
view, whatever Dr. Fort has, he should produce, because he is appearing
here as a witness on behalf of one of the parties. And if there are any
writings that he has authorized or used or permitted to be used under
his name, then that should be made available for purposes of
cross-examination. |