Trial Transcripts

August 20, 1979

Discussion in the absence of the jury

Scans of original transcript
August 20, 1979: Discussion at trial, p. 1 of 33
August 20, 1979: Discussion at trial, p. 1 of 33
August 20, 1979: Discussion at trial, p. 2 of 33
August 20, 1979: Discussion at trial, p. 2 of 33
August 20, 1979: Discussion at trial, p. 3 of 33
August 20, 1979: Discussion at trial, p. 3 of 33
August 20, 1979: Discussion at trial, p. 4 of 33
August 20, 1979: Discussion at trial, p. 4 of 33
August 20, 1979: Discussion at trial, p. 5 of 33
August 20, 1979: Discussion at trial, p. 5 of 33
August 20, 1979: Discussion at trial, p. 6 of 33
August 20, 1979: Discussion at trial, p. 6 of 33
August 20, 1979: Discussion at trial, p. 7 of 33
August 20, 1979: Discussion at trial, p. 7 of 33
August 20, 1979: Discussion at trial, p. 8 of 33
August 20, 1979: Discussion at trial, p. 8 of 33
August 20, 1979: Discussion at trial, p. 9 of 33
August 20, 1979: Discussion at trial, p. 9 of 33
August 20, 1979: Discussion at trial, p. 10 of 33
August 20, 1979: Discussion at trial, p. 10 of 33
August 20, 1979: Discussion at trial, p. 11 of 33
August 20, 1979: Discussion at trial, p. 11 of 33
August 20, 1979: Discussion at trial, p. 12 of 33
August 20, 1979: Discussion at trial, p. 12 of 33
August 20, 1979: Discussion at trial, p. 13 of 33
August 20, 1979: Discussion at trial, p. 13 of 33
August 20, 1979: Discussion at trial, p. 14 of 33
August 20, 1979: Discussion at trial, p. 14 of 33
August 20, 1979: Discussion at trial, p. 15 of 33
August 20, 1979: Discussion at trial, p. 15 of 33
August 20, 1979: Discussion at trial, p. 16 of 33
August 20, 1979: Discussion at trial, p. 16 of 33
August 20, 1979: Discussion at trial, p. 17 of 33
August 20, 1979: Discussion at trial, p. 17 of 33
August 20, 1979: Discussion at trial, p. 18 of 33
August 20, 1979: Discussion at trial, p. 18 of 33
August 20, 1979: Discussion at trial, p. 19 of 33
August 20, 1979: Discussion at trial, p. 19 of 33
August 20, 1979: Discussion at trial, p. 20 of 33
August 20, 1979: Discussion at trial, p. 20 of 33
August 20, 1979: Discussion at trial, p. 21 of 33
August 20, 1979: Discussion at trial, p. 21 of 33
August 20, 1979: Discussion at trial, p. 22 of 33
August 20, 1979: Discussion at trial, p. 22 of 33
August 20, 1979: Discussion at trial, p. 23 of 33
August 20, 1979: Discussion at trial, p. 23 of 33
August 20, 1979: Discussion at trial, p. 24 of 33
August 20, 1979: Discussion at trial, p. 24 of 33
August 20, 1979: Discussion at trial, p. 25 of 33
August 20, 1979: Discussion at trial, p. 25 of 33
August 20, 1979: Discussion at trial, p. 26 of 33
August 20, 1979: Discussion at trial, p. 26 of 33
August 20, 1979: Discussion at trial, p. 27 of 33
August 20, 1979: Discussion at trial, p. 27 of 33
August 20, 1979: Discussion at trial, p. 28 of 33
August 20, 1979: Discussion at trial, p. 28 of 33
August 20, 1979: Discussion at trial, p. 29 of 33
August 20, 1979: Discussion at trial, p. 29 of 33
August 20, 1979: Discussion at trial, p. 30 of 33
August 20, 1979: Discussion at trial, p. 30 of 33
August 20, 1979: Discussion at trial, p. 31 of 33
August 20, 1979: Discussion at trial, p. 31 of 33
August 20, 1979: Discussion at trial, p. 32 of 33
August 20, 1979: Discussion at trial, p. 32 of 33
August 20, 1979: Discussion at trial, p. 33 of 33
August 20, 1979: Discussion at trial, p. 33 of 33

MR. SEGAL:  Now, at this point, Your Honor, there are two things: one, I want to make a brief representation to the Court on the record at time meant to ask very briefly to be heard by Your Honor in regard to the significace, if any, to be given to the testimony of the last two witnesses taken on voir dire.

THE COURT:  Before you begin, are there more other witnesses of this paricular character that you will be bringing in?

MR. SEGAL:  Pardon me, Your Honor.


MR. SEGAL:  I think not, Your Honor.  This represents to the best of my knowledge ---

THE COURT:  (Inerposing) The reason I inquire is because I think that argument relative to this kind of testomony would better come in after you have had it all in; but if this is all of it, I will hear you now.

MR. SEGAL:  I want to first make a representation to the Court in regard to the circumstances under which Ms. Rouder saw Ms. Stoeckley.  At the conclusion of her testomony on Friday, Your Honor, at that time, you might recall, I served the witness a subpoena and I handed her a check for witness fees in accordance with the statutes and told her to be back here on Monday in this courtroom.
I made no other arrangements with her to contact her to see her; did not ask her where she was going, where she was going to stay.  My interest was then what it is now: in her potential testimony as a witness under circumstances which would be inappropriate.  She left here and I had no knowledge of where she was going.
I received a telephone call, however, on Friday evening from Ms. Stoeckly in which she called me to tell me where she was staying.  She said that she had checked into the Downtowner Motel.  At that time I said to her that I was surprised she had goine there and that it would be inappropriate to stay there because all of the Defense witnesses and the Defense lawyers were going to move the next day to that motel.  Our lease at the place where we had been staying throughout the summer had expired and we had made, some weeks ago, arrangements to stay at the hotel.
There were some other brief inquiries -- oh, I should add that the reason for the conversation specifically was that she called about a television story she said she had heard and wanted to ask whether people really had said those things about here that the television reporter had commented on.
I told her that I hadn't seen it and responded to it generally, and then she told me where she was.  I had no further contact with her except that on Saturday morning, I spoke with her and told her at that time -- Mr. Davis called me -- not Ms. Stoeckley.
Mr. Davis called me.  I said to him, "It is imperative that they leave the motel.  I do not want them in the same motel where we are staying.  I consider that to be uncomfortable circumstances at best."  And he said they were going to leave.  He did not tell me where they were going.
I had no further knowledge.  Later that day, I received a telephone call from Mr. Underhill which you now know the circumstances essentially.  He had goine to the Journey's End, learned what he did about her condition -- that she had a black eye and that apparently something had happened at the swimming pool which in the view of the manager of that motel -- that person is here as a matter of fact, Your Honor, if you desire to hear from her -- but in the view of the manager of the motel it was not a friendly incident.

MR. SEGAL:  (Continuing)  At that point, my concern is that having spent as long and so much effort to locate Helena Stoeckley, I was not about to let anyone harm her if I could avoid that.
At that point I asked Ms. Rouder to go over and see what were the circumstances and let me know.  Essentially that is the genesis of what was going on here.
That is all I wish to say as a representation to this Court as to the background of our contacts with her.  If it had been anything other than her own acts, her own calls and contacts with me, we would probably never have spoken to her or had any contact with her over that weekend.
I don't know whether the Government has anything further to add.  I do wish to be heard when it is appropriate, Your Honor, in regard to what further evidence the jury in this case should hear.

MR. BLACKBURN:  We don't have anything.

THE COURT:  You don't have anything in response to that?


MR. SEGAL:  I think it places a needless, unwanted and undesirable pall over the entire trial of this case, if the testimony in regard to Helena Stoeckley as said over the years; and her most recent statements to Mr. Underhill and Ms. Rouder(SPELLING) were kept from the jury.

THE COURT:  Tell me what rule or rules you propose to introduce this testimony?

MR. SEGAL:  I think the most recent statements, Your Honor -- impeach her direct testimony in which she denied knowledge about the murders.
Her statements are so clearly statements of consciousness of guilt that I think that there should be -- they should be admissible as that.
I also do believe, Your Honor, that those statements taken together in the total context of all her other statements read together may fairly be deemed by a jury to be statements that a person would not have made, except knowing that they had the possibility of incriminating that person.  The fact that -- declaration against ---

THE COURT:  (Interposing)  That's Rule 804(b)(3)?

MR. SEGAL:  Yes, Your Honor.  I think her statements ---

THE COURT:  (Interposing)  You will not seek to introduce it under (b)(5)?

MR. SEGAL:  We have noticed the Government under (b)(5), Your Honor ---

THE COURT:  (Interposing)  Well, that was for something that took place some time ago.  You haven't ---

MR. SEGAL:  (Interposing)  Yes, sir, prior -- at this time I would certainly, as a third basis for it, ask the Court, within its discretion that it has in this matter under 804(b)(5) to consider the circumstances under which the statements were made.
There is no indication of hysteria, no indication of drug abuse.  There is no indication of anything other than the fact that these statements were made because they weighed heavily on the mind of this person.
I have not tried to burden the record with the hours of conversation surrounding it.  Ms. Rouder described it -- the bantering, the pauses, Ms. Stoeckley saying something relevant to this case, I think.
It is her initiative.  It seems to me it so clearly reflects on her state of mind that it ought be be again heard now.
I think if that testimony is heard, the jury in this case would be in a far better position to make a determination as to evaluating Ms. Stoeckley's testimony, which we all struggled so hard to get.
And I do just, in comcluding, say to Your Honor, I know your feeling that it would be a tragedy for all concerned for this case, with all the years that have gone by and all the effort that has gone into it, to not properly and fully resolve the issues that are here.
I say to Your Honor that in 1970, it was one of the only two findings of the Article 32 proceedings in this case -- the two findings at the conclusion of five months of legal proceedings, of which there was a 2,200-page record, a 90-page report by Colonel Rock -- and he made two findings.
One of those findings, of course Your Honor knows, was that the charges in Colonel Rock's view on the record were not true.  The other finding was that Helena Stoeckley should be investigated by the civilian authorities for possible complicity in the murders.
If it is not to be done now in some small portion, without necessarily going into every single detail -- if some small portion of it is not treated in this trial, it just seems to me, Your Honor, that these again, perhaps in perpetuity and needlessly in doubt, what is the proper disposition of this case?
I think Your Honor clearly has the power to do it.  I think that all the instincts that surround this case -- you know, I would say -- let us know what Helena Stoeckley has said.
She has said that she is afraid to stay in this courtroom -- the ting that she said outside, and she has provided an explanation.
In part she feels naming persons will endanger her.  In part she has some fear of the prosecution.  Whether they are well-grounded or not, I don't mean anything personal, since I mean the prosecution as an institution -- the possibility that the prosecution poses a danger, not necessarily for indictment or charges in this case -- that it would be statements that would be adverse to the prosecution.
Those are reasons that we have all heard.  They are common enough to our experience as lawyers in criminal cases to know they havbe the ring of reality.  They have been said before in instances where we have accepted them.
That is why people are willing to make out-of-court statements.
Your Honor, I am sure, is faced with the situation where a witness testifies favorably for the Government in front of the Grand Jury and won't say it here in the courtroom, and we know why -- fear of outside forces.
This case is -- one of the unique factors is that we have a reversal of roles.  Here is the Defendant doing something which the military proceedings in 1970 said should have been done.
It was a virtual direction of the Government to do it.  What we have here is six witnesses we put on Friday, including the CID agent Brisentine who interviewed her and had a formal statement, which I think is so complete and explicit in detail that it was in fact the response to the direction of the military proceedings in 1932 (sic).
That I recall Mr. Brisentine's testimony and that when he took that statement and when he put those words out, he was not talking to somebody who was non compos.  He was not talking to somebody who didn't know what she was saying.
I think not only what he said, but what the other witnesses said should also come in to give the jury the total and fair picture.
We are giving, I think, to the jury a view which is taken from such an angle that it precludes any sense of confidence that they could properly decide this case.

THE COURT:  Any response?

MR. BLACKBURN:  Your Honor, it seems that the Defense seems to try Helena Stoeckley rather than the Defendant Dr. MacDonald.  Under Rule 804(b)(3), which I understand he seeks to come in under, and I will not ---

THE COURT:  (Interposing)  And a hose of others.

MR. BLACKBURN:  I am going to address my comments primarily to (b)(3) because I think that will take care of most of the others.  Frankly, Your Honor, we would argue as we argued Friday afternoon that statements by Helena Stoeckley are not trustworthy.  They simply are not credible.  She has continued to do over the weekend as she has done before.  That is, go from "A" to "Z."  I am not saying she went from "A" to "Z" on Saturday or Sunday.  I am simply saying this is no more than an extension of that.
As you will recall the testimony in the lengthy voir dire Friday, she told Brisentine, "I did it.  I was there.  I wasn't there.  I know who did it.  I don't know who did it.  I think I know who did it.  I suspect who might have done it."  She also named the Defendant as one of those whom she thought did it.

THE COURT:  Right there, let me interrupt to ask you about the value of evidence as impeachment when the witness has testified both ways.

MR. BLACKBURN:  I would agree with that.  I don't know which way ---

THE COURT:  (Interposing)  Don't agree with me.  I am asking you.

MR. BLACKBURN:  What I am saying is I would agree that she testified both ways.

THE COURT:  Who is to say whether or not it is impeaching and whether it is corroborating?

MR. BLACKBURN:  That is exactly my point, Your Honor.  She has gone both ways.  If I recall her Direct testimony on Friday, she doesn't know where she was for four or five hours.  She still doesn't know where she was for those for or five hours.  Not one thing she said over the weekend changed that fact.  She is still worried about it.  The fact that -- it doesn't show consciousness of guilt it seems to me when she says that she doesn't know where she was and that she might have been there and that she would like to take either hypnosis or a truth drug to find out.  That is certainly not consciousness of guilt.
Mr. Segal said a moment ago that she was very calm.  We know from testimony, I think, of Mr. Underhill that she was anything but calm when he saw her.  The rule on 804(b)(3) states that it has got to be so far contrary to her penal insterests that a reasonable person would not make it unless he believed it to be true.  That does not come within that statute.  "A statement tending to expose the declarant to criminal liability," she has not exposed herself to criminal liability by saying she doesn't know where she was.  I don't think we could get a grand jury to indict Helena Stoeckley on probably cause of anything.

THE COURT:  Well, just as a point of interest, I seem to recall that when this Indictment was returned against this Defendant, and you correct me if I am wrong, that it was within maybe less than a month prior to the time when any prosecution would have been barred by the five-year statute of limitations; is that correct?

MR. BLACKBURN:  That is correct.

MR. SEGAL:  That is my understanding.

THE COURT:  Now, there is authority which came to my attention during the weekend when I was giving a little attention to this matter to the effect that one no longer subject -- that statements of this kind are not against their penal interests.  I noted a case or two like that, but now, on the question of whether or not it is barred, I am just inquiring.

MR. BLACKBURN:  As I recall, the Saturday before this trial began, we had a lengthy debate and argument among counsel on both sides as to challenges, you recall, as to whether or not this was a capital case.  If it is not a capital case, as I think His Honor was led to believe by the research, then, of course, the five-year statute of limitations applies.  It would not be against her penal interests because she or no one else, I assume, other than Dr. MacDonald ---

THE COURT:  (Interposing)  Against my better judgment, I let you have those 20 challenges just to head off at the pass at least one ground of error.

MR. BLACKBURN:  I would also say, Your Honor, with respect to the "reasonable man" thing, she stated that the candle was dripping not was but dripping blood.  Candles, of course, don't drip blood.  There is not one bit of evidence in this trial ---

THE COURT:  (Interposing)  I don't know -- with Helena, they may.

MR. BLACKBURN:  If that be true, Your Honor, that is precisely the point that these statements are inherently unbelievable or unreasonable because whatever drugs she has been on in the past or present or still on -- we would seek to OBJECT to the introduction of this testimony because it does not come within the rule.  It is prejudicial -- unfairly prejudicial -- to the Government.  It is not against interest.  It is not reasonable.  It does not expose her to any criminal liability.

MR. SEGAL:  May I, Your Honor?

THE COURT:  Yes, sir, you may conclude.  You have the burden on this one.

MR. SEGAL:  I do.  I accept that burden, Your Honor.  I want to say that I think the Government makes a sham out of Rule 403 when it says it will be prejudiced by this.  It is the same Government that brought the Article 32 proceeding.  It is the same Government's findings in that case.  They have no right to come in and argue that they are prejudiced by a finding in their own case.  It was their official investigation in this case that said Helena Stoeckley was a person who should be investigated by the civilian authorities.
Here we are nine years later, and it looks like the Defense would do that job by bringing out the witnesses, some of which are Government witnesses and many of which are jut ordinary civilians doing their job.  The Government should not be permitted to hide behind 403 and cry "Prejudice" when its official investigations said, "Do this.  Bring it out."  Let us put that aside for a moment, then, Your Honor.
Secondly, as to this matter of declaration against interest, I say to the Court that the testimony of Mr. Underhill, Ms. Zillioux, earlier, and Ms. Rouder do two things.  Fi9rst in and of themselves, they ought to be heard by the jury; and secondly, they tend to add weight to our contention that all of the testimony of her prior statements made in '70, '71, and '72, should come in.  This is strong circumstantial evidence.  The Government thinks that because she also at some times would like to ignore her involvement in this case, that only goes to the matter of weigh.  But this Government has no right to claim prejudice because it investigated -- it commenced proceedings and its ivestigation said, "Go do the job that we are trying to do here."
I think, however, Your Honor, the problem may be solved two says.  If we don't stay focusing only on the declaration against interests, but consider this, I think -- well, three ways, certainly, as impeaching.  Her testimony was that she did not know what happened between midnight and 5:00 on February 17th.  Her testimony also was that she didn't know who was involved.  I cannot find anything clearer than her statements made to Ms. Zillioux as to Allen Mazerolle as a person that she is afraid of and that she would not last five minutes on the street if she testified.  She said that she knew the three names according to Ms. Zillioux.  That seems to me as very much impeachment of her testimony which this jury has heard.  I think we are allowed to do it that way.

MR. SEGAL:  (Continuing) In addition, Your Honor, I think it is not hearsay entirely under 801(d)(1); 801(d)(1) is one of those many interesting changes in the Federal Rules of Evidence which allows the jury tohear an inconsistent out-of-court statement and receive it as substantive evidence in this case because it defines as not being hearsay anything within the set of hese rules -- 801(d)(1), Your Honor.
It provides that we may receive those out-of-court statements of Ms. Stoeckley as substantive evidence in this case.  The jury can choose whether they believe Ms. Stoeckley's denials of being -- having knowledge of what happened on February 17th, of being there on February 17th.  802(d)(1) says:
"When the declarant testifies..."
the declarant, of course, being the same person who made an out-of-court statement,
"...and is subject to cross-examination concerning the statement..."
and she was
"and the statement being either inconsistent with his or her testimony was given under oath, subject to penalty or perjury..."
The rest of it is not relevant.  That is defined as not being hearsay.  If it is non-hearsay, Your Honor, the only issue remains for this Court is, is it relevant.  I cannot conceive -- I really cannot fathom any argument that would say that a statement by a witness that he or she was at the scene of this crime and knows the persons would not be relevant.
I think under 801(d)(1) she was here, she testified on the subject, she was subject to cross-examination.  Whether they exercise it or not is a matter of indifference to us.  It is not hearsay.  The only question can be relevance; and I would submit it is very relevant.
The Government would not protest so much if they didn't realize that if this testimony is heard, it has potentially considerable weight in the outcome of this case.

THE COURT:  In addition to the rules that you cited first, you now want to introduce this under 801(d)(1)(a); is that correct?

MR. SEGAL:  Yes, Your Honor.  That is additional grounds.

THE COURT:  That seems to require as a condition to admissibility under that section that the statements ought to be proved, should have been given under oath, subject to a penalty of perjury at a trial here in or at other proceedings or in a deposition.
The statement which you seem to want this witness to tell was one that was given in a motel here in Raleigh on yesterday.

MR. SEGAL:  That is not my reading of the rule, Your Honor.  Let me just read the rule again if I may go through it on a line by line basis.  It defines it as not being hearsay and therefore eliminates that obstacle entirely and leaves only the issue of relevance.
In these rules the word "declarant," of course, is used to refer to the person who makes the statement outside the court.  Here we are saying the declarant -- the person who also made an outside the court statement -- has testified; that means, was also a witness.
"The declarant has testified at the trial..."  We have had that -- that is, Ms. Stoeckley made out of court declarations, Your Honor.  In those declarations she is, of course, a declarant.  She has also testified at this trial.  It would also require that she is subjected to cross-examination.  She was, in fact, subject to cross-examination concerning the statement that is being offered.
As a matter of fact, I presented her and asked her certain matters that we believe she had stated in a conference room.  she denied them on the stand and said she didn't say those things.  They were the final six points of my direct examination.  Therefore, with those conditions -- and it is therefore argued it is (a) it is inconsistent with the testimony given under oath; that is, here in this courtroom.
We are then permitted as a matter of non-hearsay to introduce that testimony.  What this rule does, Your Honor -- may I offer an example that Dean Labb (phonetic), one of the drafters of the rules, has lectured on many times?
There is a famous case called State of Arkansas v. Comer.  In the Comer case, a young woman was molested allegedly by her stepfather.  There was a charge of sexual abuse brought against him.  The young woman had given a statement to the police in which she made out the charges.
At the rial when she was called to the witness stand, she was asked by the prosecutor, "What, if anything, happened between you and your stepfather?"  She said, "Nothing."  The prosecutor, of course, found that contrary to her prior statement and then proceeded to cross-examine his own witness on her prior statement in which she said there had been sexual molestation by the stepfather.
The question was whether or not the case could go to the jury even because, when the prosecution rested, what they had was original testimony that said nothing happened and cross-examination for the purpose, I suppose, of impeachment which said something happened.
The prosecution argued before the State Supreme Court in the Comer case that the jury should choose which of the two statements that they wanted to have as the actual fact; namely, the out-of-court statement which was read to her or the in-court statement in which she denied anything happened.
The Arkansas Supreme Court, and we are referring to what Professor Wigmore said, "While we have never allowed this, all that we succeeded in doing by reading the statement of this woman was to cross out entirely her testimony."  It was a null and void situation, there being no other evidence in the case.
Therefore, there was nothing for the jury to consider.  It should have been dismissed.  That was the rule that was extant in the Federal court -- that is, you either had to have your in-court testimony of the witness and if you were going to an out-of-court statement of the same witness, all you could do would be impeach, but you wouldn't have any substantive proof on that point left.
These rules have changed that.  It is a major -- it is one of the two or three most significant changes in these entire Rules.  Under these Rules, in the same situation I just described, the facts in the Comer case, the result would be if the young woman had gotten up in court and said, "Nothing happened between me and my stepfather," the proseuctor either if he had expressly called in a detective or just by cross-examination, reading her her prior statement in which she said something happned.  If that was the situation, that case, under these Rules, would go to the jury if there is not a single word in evidence anywhere else about these sexual acts, and the Defendant may be convicted under these Rules because the jury may take the out-of-court statement as substantive proof of the facts contained, provided; one, that the person who made the out-of-court statement was on the witness stand -- Ms. Stoeckley was -- testified on the subject matter -- she did -- and this statement is inconsistent with what she said in the testimony here.
I submit, Your Honor, that these out-of-court declarations are inconsistent.  This is a very definite change from what Your Honor and I, I'm sure, both learned in law school and we both practiced under.  It is one of those things which is only barely felt and understood.  There has been only a few cases yet where there has been an appellate review.  I have not fully done this, but I w2ould assure Your Honor -- if you read the Comer case -- the Arkansas case -- it is in standard evidence testbooks as showing this point.
It is offered as a contrast point to what the Federal Rules now allow as substantive evidence.  We have more than just impeachment under 801(d)(1)(a).  We actually have substantive evidence.  I care not on that point.
I think our issue is that we are entitled, I think, either under the impeachment rule or ---

THE COURT:  (Interposing)  You believe, as all of the writers on the subject -- a view which I share for whatever it is worth -- is that once it is in there, a jury simply can't tell whether it is impeaching or substantive.

MR. SEGAL:  I think that is true, Your Honor.  All that we can do is rely upon our usual mechanism of instruction to the jury; and in fact when we get done what we are really asking the jury to do is to take the totality of the case along with that one simple fact that doesn't totally unbalance the case.
We will always live with our instructions as the way to protect it.  It's a legal fiction.  It is a convenient one; I think it works on the whole in most instances, except the more -- you know, there are some egregious situations where not even an instruction will work.  But we live with that.
Now, in this instance, I think if there is a need for instruction, then the Government ought to ask for it, but I think the rule lets us have it.  I think not only the rule though.
I rely upon these rules.  I think we are one hundred percent right in our right to offer it, but I do say to Your Honor there is a larger dimension to all of this.
The length of this case, the length of the pre-trial from 1970 on, the findings of the Article e2, which really tells us we should be doing this -- all that urges upon Your Honor the wisdom at this time on this date saying, "Let this testimony be heard."

MR. BLACKBURN:  Your Honor, since that is somewhat new matter, may I be heard now?

MR. SEGAL:  I won't argue any more after then, Your Honor.

THE COURT:  Well, I thought about that, but you see, you may open up something elser; and we've got a jury cooped up back here.  Go on and say it.

MR. BLACKBURN:  It won't take long.  With respect to 801(d)(1)(A) ---

THE COURT:  (Interposing)  Don't tell me about that.

MR. BLACKBURN:  I won't then.  I will sit down.  That was all I was going to address, Your Honor.

THE COURT:  You were going to say that it was not applicable?


THE COURT:  Well, the Court will have to agree with you.  Inasmuch as the statement sought to be introduced under 801(d)(1)(A) is concerned, I read that rule to require that the inconsistent statements have been made under oath at some other proceeding or whatever.
This one was not -- I think it does not meet that.  I also remain of the opinion, gentlemen -- let me say this: this Stoeckley girl I think is one of the most tragic figures that I have ever had to appear in court.
A girl coming out of high school at 15 years of age and going on into the drug culture, and absolutely burning her mind out with opium, heroin, mescaline, LSD, and marihuana, and having gone, now, what must 11 or 12 years in this -- one of the most tragic figures that I have ever seen in a courtroom.
But the picture emerges, though, of a person whose mind is so far impaired and distorted by this drug addiction that she has become and remains in an almost constant state of hallucination.
That she is extremely paranoid about this particular thing, and that what she tells here in court and what she tells witnesses, lawyers in a motel room, simply cannot have attached to it any credibility at all in my opinion.
I think it is not as required by 801(b)(3) clearly trustworthy.  It is perhaps the most clearly untrustworthy evidence that I have had put before me.
So for the reasons that I gave in somewhat brief form on the record this morning at a bench conference, I will exclude -- and to be more fully expliccated later in a written memorandum -- I will exclude this testimony.
I don't think as far as subdivision (b)(5) it concerned that it would ever be adequate notice that it was given at 11:00 o'clock in the morning and the evidence was thought to be introduced thereafter.
But the same trustworthy requisites are applicable to both sections of that statute.  And I also think that having given the better part of three days to the testimony of this girl and her bizarre -- to put it as charitably as I can -- accounts of this thing would only promote confusion and a waste of time, a needless duplication of what she has already told us.
I think this jury having heard her for the better part of a day would be in a good position now to evaluate her and her story, and everything about it, as they'll everf be if you brought not just those Friday's six witnesses, or those three who have testified today, but if you brought a wagon load of people -- everybody that you ever talked to about this thing.
I still think the jury has got and should have a clear picture of this particular witness as they will ever have.  I will exclude the evidence.  Let the jury come in.
Let me see the lawyers here at the bench just a moment while they are coming.

B E N C H  C O N F E R E N C E

THE COURT:  Another thing that concerned me, and I just want to -- this is not the basis for my ruling on the evidence -- but I am, to say the least, surprised that any lawyer appearing in the case would allow themselves to become associated even on a request basis with a character like this over the weekend.
But suppose you wanted to put this girl on the stand to testify to all this stuff, then what does it do to you since she is your alter ego in that situation and your right to continue on as counsel in this case?

MR. SEGAL:  I am certain -- I am confident that it would not affect my right to appear.  We have had many cases where associate counsel had to testify.

THE COURT:  Well, I just raised the question.

MR. SEGAL:  I understand what Your Honor is saying.

THE COURT:  I would certainly commend to counsel the advisability of not even getting involved in this kind of thing.  I do not say this critically of your young associate.  I think that professinally -- certainly her work product that I have seen, and I asked her about it -- has been of the highest order.
But I just ---

MR. SEGAL:  Your Honor, you should be aware -- it struck me to be a ghastly tgragedy if something had happened to Ms. Stoeckley on this weekend after all the effort made to get her.

THE COURT:  I think Helena herself is just a walking ghastly tragedy, and I am awful sorry about it; but it is just a part of the cumulative bizarre picture that has surrounded this whole thing right from the beginning.
But I really think to explore this further would be in effect beating a dead horse and taking time unnecessarily.
I think that having seen her as far as your jury argument and everything is concerned that you now -- even by the questions you asked this morning, to which objection was sustained -- you have as much developed the picture to the extent that you need to, if indeed you can make hay from this thing.

MR. SEGAL:  There is this witness, Mr. Posey, who will not be asked about the conversation with her.  He does relate to physical facts.  He saw the clothing.

THE COURT:  Oh, yeah, sure.

MR. MURTAGH:  I think Helena feels in her mind that in effect she is in custody here.

THE COURT:  Oh, I am glad you mentioned that because I had neglected, just completely overlooked it, to tell you, but I want you to know that among others called by Helena, she called me twice Saturday night stating that she was living in mortal dread of physical harm by Bernard Segal, counsel for the Defendant, and that she wanted a lawyer to represent her.
I said, "Well, now, look, I cannot talk to you about this case, but somebody will call you tomorrow.  Where will you be?"
That is the reason I knew this Journey's End thing.  She gave me the Journey's End.  Of course, what I wanted to do was to go to the Criminal Justice Act to see whether or not I could pay any lawyer under these circumstances, and amazingly I found an amendment to the Act, which is not even in the bound volue, which allows me to do it for a witness who is in ---

MR. SEGAL:  (Interposing)  That is incredible.

THE COURT:  So I told Steve Coggins then -- I said, "Find me a lawyer," and I think he called everybody in the book just about, but he finally got Jerry Leonard.

LAW CLERK:  Have you ever tried to find a lawyer on Sunday afternoon?

THE COURT:  You can always find me.  Segal'[s always got me working on Sunday afternoon.

MR. MURTAGH:  Judge, I guess we won't have your testimony.

THE COURT:  Thank God for that rule that says that I am absolutely read out of this one.

MR. MURTAGH:  What I am concerned about is that this person is very susceptible to suggestion.  All of her past friends -- Underhill, Zillious -- I detected Beasley was hanging around.

THE COURT:  Maybe I can shorten that for you.  I am going to order counsel for both sides and all other witnesses to stay away from this woman until this thing is over.
You can bring her back in her [sic] and testify if she wants to, but I will just treat everybody alike about that one, then we won't have that question to arise.

MR. MURTAGH:  I believe she is in the witness room.

MR. LEONARD:  She is in a separate witness room from all the others.

THE COURT:  Oh, you've got her here?

(Bench conference terminated.)
Webmaster note: 
The oringal stenographer's misspellings of Rowder and Mazzarole were corrected to Rouder and Mazerolle, repsectively, in this transcript.