August 14, 1979
Scans of original transcript
MR. SEGAL: May we see Your Honor briefly in regard to the next matter?
THE COURT: Come up.
B E N C H C O N F E R E N C E
MR. SEGAL: Your Honor, as our next piece of evidence we would offer the prior testimony of Dr. William Neal, who was the pathologist who pronounced the deaths. Here is an affidavit of our efforts to obtain his presence in court.
He testified under oath at the proceedings in this case in 1970. Our process server has ascertained that Dr. Neal is away on vacation and cannot be reached. The prior testimony was subject to cross-examination by Government counsel.
He has been referred to by Mr. Ivory in his testimony.
THE COURT: How long is he going to be on vacation?
MR. SEGAL: Several weeks.
MR. BLACKBURN: We would seek to oppose this, because Dr. Neal will testify as he did at the Article 32, contrary to the testimony of Ivory, Shaw, and Connolly, that he moved the bodies of each of the victims. There was cross-examination. The Government does not believe it was adequate cross-examination, and we will be deprived of that right to cross-examine him. If he is on vacation, we would suggest that perhaps that vacation be interrupted because some of our vacationing witnesses were also interrupted.
THE COURT: Your Honor, we do not know where he is on vacation. Let me point out, first of all, the Government listed him as a witness.
THE COURT: Well, have you got him under subpoena?
MR. SMITH: We have tried.
MR. SEGAL: We expected that they were going to have him here.
THE COURT: Did you have him on your witness list?
MR. BLACKBURN: I believe he was.
MR. SEGAL: Absolutely.
MR. BLACKBURN: He was on the witness list.
THE COURT: Did you have him subpoenaed?
MR. BLACKBURN: Yes, sir.
THE COURT: And you released him?
MR. BLACKBURN: No.
MR. MURTAGH: We didn't call him.
MR. BLACKBURN: We didn't call him. See, we had a number of people on the witness list that we did not know whether or not we would in fact use them, so we had them on an on-call type of thing, but I do think that further evidence beyond this affidavit ought to be made to locate this witness. I don't see how the Defense can --
THE COURT: Well, I think I will defer this. Go on to something else and we will see about this.
MR. BLACKBURN: We will --
THE COURT: (Interposing) I will put the onus on you of finding him and see whether or not he can be reached. If he is under subpoena and hasn't been released, he is supposed to be here anyway. He hasn't got a right to take a vacation, at least without getting some kind of clearance.
MR. MURTAGH: For the record, I provided Dr. Neal's address to Mr. Segal in 1975. He is not a surprise witness --
MR. SEGAL: (Interposing) Nobody said that, Mr. Murtagh.
MR. MURTAGH: What I said was, before August 16th, he should have taken some efforts to insure that the potential witness for the Defense would, in fact, be available to him. I don't think it is the Government's onus to have his witness here, but we will still try and find him.
MR. SEGAL: Your Honor, we fit him within the definition of a "witness who is unavailable." The reason why we need it, if not today -- tomorrow -- is our next series of witnesses rely upon -- need to have the predicate information that Dr. Neal provides.
Now, if the Government thought he was important to their case, then they should have put him on. I notice they only complain when the Defendant wishes to call their witness who they never said would not be here or be available.
We have done what is necessary under the rules to get him. I have put my signature under oath.
THE COURT: You've done everything except issue a subpoena for him, apparently.
MR. SEGAL: We issued a subpoena. We could not serve it.
THE COURT: When?
MR. SEGAL: The facts were all set out here.
THE COURT: Well, just tell me. I haven't read it yet.
MR. SEGAL: As soon as we found out that he was not going to be called as a witness, we sought out a person to serve the subpoena, sent the subpoena to him --
THE COURT: (Interposing) Where is this fellow ordinarily?
MR. SEGAL: Fort Worth, Texas.
MR. BLACKBURN: Your Honor, we can locate him, I am sure.
MR. SEGAL: Do you want to bring in all the rest of the witnesses that we are going to have to read because they can't be found? There are people you might have to bring in. I will tell you some more.
THE COURT: I think, now, in the interest of time, if you've got others, that you ought to tell them just as fast as you can, because it is too late in the game. I don't want either side ambushing the other. This lawsuit ought not to be tried on such basis on either side, and I am not going to have it, if I can help it.
MR. SEGAL: I agree with that, Your Honor. Our problem is: we did what we know under the rules we should do which is try to subpoena. We are now in the position -- because we only learned when the Government rested its case, that they weren't going to call him.
Now, our problem is: we have other medical witnesses who are going to be lined up. Maybe we should set some sort of parameters as to how long we have to wait for the Government to get a report back. It seems to me that a day is all that is required.
THE COURT: I think they can find out something today.
MR. SEGAL: All right, Your Honor.
MR. SMITH: Thank you.
(Bench conference terminated.)