August 6, 1979
Bench conference re: Playing of April 6, 1970 tape
Scans of original transcript
MR. BLACKBURN: Your Honor, may we approach the bench on another matter?
THE COURT: All right.
B E N C H C O N F E R E N C E
MR. BLACKBURN: Your Honor, I wish to take up something we said on our last conference on not playing a tape. We have talked among ourselves in the last few minutes, and we do think probably this afternoon we will seek to play a tape-recording. Mr. Segal, of course, asked me if he could hear it prior to it being heard. I gave him an updated version of the transcript, although he has had the other one a long time. The updated version is some clarification, different paragraphs, and sentence structures. He has not heard the tape. We do have a witness, if we have to use him, who could authenticate the tape.
THE COURT: Well, he won't require you to do that.
MR. SEGAL: No, Your Honor. I need to talk to Mr. Smith. My primary consideration, Your Honor, is I have asked the Government for the last week to let me listen to the tape. For nine years we have been proceeding on all these various levels of this case with a transcript provided by the Government at the Article 32 in 1970.
Just now, in the last week or so, we have been told that there is a new, revised transcript, and I would simply ask, before it is played to be able to listen to it. I really still make that request.
THE COURT: How long will it take?
MR. BLACKBURN: It's a long tape.
MR. MURTAGH: Two hours.
THE COURT: Two hours?
MR. BLACKBURN: I will say this -- the changes in the tape are probably in the Defendant's advantage or favor. They tend to make things an "I thought" rather than "it was" type of statement.
THE COURT: In line with your usual policy, you are doing all you can to help him?
MR. SMITH: That is what I was just thinking, Judge.
MR. BLACKBURN: That is the nature of some of the changes.
MR. MURTAGH: Your Honor, the problem with the original transcription was that as Dr. MacDonald was being asked questions, he would interject so the original transcript does not have every "uh" and "ah" in it. We will have transcripts for everyone.
THE COURT: Do you claim now that you have a verbatim transcript?
MR. BLACKBURN: Yes; Mary Moore Ritchie did it about a month ago.
THE COURT: It is a verbatim transcript of the original tape?
MR. BLACKBURN: Yes, sir.
THE COURT: You've got the original tape?
MR. MURTAGH: Yes, sir.
THE COURT: Have you given him a copy of that?
MR. BLACKBURN: I gave him a copy of the transcript.
MR. SEGAL: Right before lunch, Your Honor.
THE COURT: When were you going to put it on -- this afternoon?
MR. BLACKBURN: We wish to this afternoon. One of the reasons this afternoon rather than in the morning, to be quite candid, is some of these other matters which we are going to rule upon. It has some bearing on which way we are going to go on those.
THE COURT: Well, how much difference is there between the transcript you have given him now?
MR. BLACKBURN: Very little.
THE COURT: All right, are the dissimilarites noted so he can look them over in a hurry or has he got to read it all?
MR. MURTAGH: I can give him the old transcript with the penned in changes as well as the new one so he can see the changes.
THE COURT: Well, let's do that. I just don't think it is that big a deal.
MR. MURTAGH: Your Honor, there is one point at the very end of the tape. At the very end of the tape, he is asked, "Would you take a polygraph?" At that point, I want to turn off the machine.
MR. SEGAL: Wait a minute. The answer was that he said he would. I'm not sure whether we would object to that.
MR. BLACKBURN: The truth of the matter is at the conclusion of the afternoon session he changed his mind. The truth of the matter is he subsequently did not.
MR. MURTAGH: At the end of the afternoon session he was still willing, but subsequently hd did not take a polygraph.
THE COURT: Do you want to leave it out?
MR. MURTAGH: Yes, sir.
THE COURT: for the same reason that if it had come frist from the Defendant, you would have objected and, under the fourth circuit rule, I would have had to sustain it.
MR. MURTAGH: We don't want a mistrial.
MR. SEGAL: We have not had a chance at all to look at this revised transcript.
MR. BLACKBURN: He can do that in ten minutes.
MR. SEGAL: It was just given to us this afternoon right before our lunch break. We have been asking for it before now to avoid just this kind of thing.
THE COURT: He is going to give you one with the penciled corrections so I think you will be able to follow that all right.
MR. MURTAGH: Your Honor, they were advised some weeks ago.
THE COURT: I understand.
(Bench conference terminated.)