Did the Judge Summarily Exclude the Testimony of Officer Habighorst?
Concealing Problems With Key Testimonyby Dave Reitzes
To provide a dramatic finale, we had scheduled as our final witness New Orleans Police officer Aloysius Habighorst. He was the police desk officer who booked Clay Shaw after we arrested him. . . . We instructed the court attache to call Officer Habighorst. But before Habighorst could take the stand, Judge Haggerty suddenly ordered the jury removed from the court. Then he informed Jim Alcock, who was questioning at the time, that he was going to rule inadmissible the fingerprint card, signed by Shaw, on which "Clay Bertrand" had been typed in the space designated for "alias." Haggerty went on to say that he would not believe whatever Officer Habighorst said, anyway (OTTOTA, 1991 ed., 283).There are many, many problems with this passage. Some may be simply errors of omission; some I would call outright lies.
First, is it true that Haggerty "suddenly ordered the jury removed"?
No, Assistant DA James Alcock, Garrison's own second-in-command, requested that the jury be removed.
8 MR. ALCOCK: 9 May I approach the bench with Counsel? 10 THE COURT: 11 You may. 12 (Bench conference off the record.) 13 MR. ALCOCK: 14 Your Honor, before calling the State's 15 next witness, I might announce to 16 the Court that the matter we are now 17 going into, by law is required to be 18 gone into outside the presence of 19 the Jury, so at this time I would ask 20 the Court to excuse the Jury so that 21 we might enter this area in accor- 22 dance with the law. 23 THE COURT: 24 Sheriff, take the Jury upstairs, please. 25 (Jury excused.)Then Lou Ivon took the stand, to testify that he completed Clay Shaw's Field Arrest Report and turned it over to the Bureau of Identification. Then NOPD Captain Louis J. Curole took the stand and identified the Field Arrest Report and Arrest Register of Clay Shaw.
Then Officer Habighorst was called to testify. His testimony takes up nearly thirty pages of the trial transcript. Officer Habighorst testified that he had questioned Clay Shaw about the items on the booking card, that Shaw had provided the answers, that Shaw had signed the card subsequent to being questioned, that Shaw's lawyer, Edward Wegmann, was in and out of the Bureau of Identification room, and that he himself did not have a copy of Shaw's Arrest Register at that time. This last point was contentious because Lou Ivon had entered the alleged alias "Clay Bertrand" on the Arrest Register, and Officer Habighorst could have easily copied the alleged alias onto the booking card.
Then Captain Louis J. Curole took the stand again. He made it very clear that Edward Wegmann was not in the Bureau of Identification room, nor would his presence there have been allowed. He also made it clear that Officer Habighorst should have had a copy of Shaw's Arrest Register in front of him, which would have contained Lou Ivon's notation of the alleged alias "Clay Bertrand."
Then Sgt. Jonas J. Butzman took the stand, testified that he'd been assigned to guard Shaw during the booking procedure, and denied that Habighorst had questioned Shaw or that the name "Clay Bertrand" had been spoken.
Garrison also does not report on the testimony of Officer John N. Perkins, Jr., who followed Butzman on the stand. Perkins testified that the booking officer routinely has a copy of the Arrest Register, that he himself had never booked a suspect without a copy of the Arrest Register in front of him, that there was no requirement for the booking officer to question the suspect, and that it was routine procedure for the suspect to sign the booking record while it was still blank.
Next, defense lawyer Edward F. Wegmann was called. He testified that he had not been permitted in the B of I room, as Officer Habighorst had claimed.
Then yet another witness took the stand: defense counsel Salvatore Panzeca, who testified that he had instructed his client, Clay Shaw, not to speak to anyone without counsel, and to direct all inquiries to his attorney.
Then Clay Shaw himself took the stand. Shaw testified that he was not questioned by Officer Habighorst, he did not answer any questions from Officer Habighorst, and he was given no choice but to sign the blank arrest record if he wanted to be released on bail.
Contrary to Jim Garrison's memoirs, an entire day of testimony had transpired before the booking card was offered by the State for admission into evidence. Here is how that day appears on the trial transcript:
Proceedings in Open Court Afternoon Session, Wednesday, February 19, 1969 Witnesses on Traverse: Louis W. Ivon Captain Louis Curole Aloysius Habighorst Louis J. Curole Jonas J. Butzman John N. Perkins, Jr. Edward F. Wegmann Salvatore Panzeca Clay L. ShawIt takes up approximately 190 pages in the transcript.
Even then, did Haggerty unilaterally bar the card from evidence? No, he heard arguments from both sides on the issue. It was during this proceeding that the exchange involving Officer Habighorst's credibility was made. Here is an excerpt:
24 THE COURT: 25 I am going to sustain the objection of 1 the Defense for the following rea- 2 sons: . . . [I]t appears to me that Captain 13 Curole's instructions to the Defen- 14 dant Mr. Shaw certainly are viola- 15 tive of the Supreme Court decision 16 in the Escobedo [case] where he was 17 taken in a cubbyhole or private 18 place to be questioned, even though 19 his attorney was banging at the 20 door to be let in. Now, it may not 21 be as drastic as the Escobedo case, 22 but no police officer has a right to 23 tell an attorney he cannot be with 24 his client at any time no matter 25 what he is supposed to do. […] 9 Officer Habighorst violated in spirit 10 and in effect the Miranda decision, 11 because if he asked questions -- and 12 we don't have to go into whether 13 he did or did not, because even if 14 he did it is inadmissible because 15 he did not forewarn Mr. Shaw of his 16 right to remain silent on an in- 17 culpatory statement such as do you 18 have an alias, so even if Officer 19 Habighorst is telling the truth 20 about what he did testify to -- and 21 I doubt it very seriously from all 22 the circumstances -- 23 MR. ALCOCK: 24 Your Honor! 25 THE COURT: 1 Wait a minute. Let me finish my reasons 2 for ruling. 3 MR. ALCOCK: 4 Are you passing on the credibility of 5 the State's witnesses in front of 6 the Press and the world? 7 THE COURT: 8 The Jury is not hearing it, that is the 9 main thing; the whole world can 10 hear it. I do not believe Officer 11 Habighorst, I do not believe him -- […] 4 The question of whether Officer 5 Habighorst did or did not ask the 6 Defendant whether or not he had an 7 alias of Clay Bertrand would not be 8 admissible before me because of the 9 violation by Captain Curole of the 10 Escobedo case, and by Officer 11 Habighorst of the Miranda case, and 12 for that reason I sustain the objec- 13 tion and I will not permit State's 14 Exhibit No. 60 to be received in 15 evidence because it does contain an 16 inculpatory statement to the effect 17 that Mr. Shaw admitted that he had 18 an alias under the name of Clay 19 Bertrand . . . […] 3 I will rule that it is inadmissible be- 4 fore the Jury because of the rea- 5 sons stated when I just sustained 6 the Defense's objection to State 7 Exhibit 60. I will not permit this 8 to be received in evidence. And I 9 further rule that the alleged in- 10 culpatory statement cannot be re- 11 ceived by the Jury. […] 25 ALCOCK: I would request of the Court permission 1 for time to apply to the Louisiana 2 Supreme Court for writs of 3 certiorari. 4 THE COURT: 5 You have time between now and 9:00 6 o'clock tomorrow morning as this 7 case will start at 9:00 a.m. unless 8 I am directed by the Supreme Court 9 not to proceed with this case.Garrison mentions this in his book, but calls it a "futile gesture." as "In those days appellate courts never granted such writs in an ongoing trial" (1991 ed., p. 284).
Garrison could be telling the truth about that last part, but I have to wonder why anyone bothered requesting such writs if it they never were granted.
Then what happened? The Judge spent the next day listening to the State's objections: "Proceedings in Open Court February 20, 1969 a.m. and p.m." It takes up another 50 pages in the transcript. Here's an excerpt:
14 THE COURT: 15 The way I read the Code on confessions, 16 which includes inculpatory state- 17 ments, it is first for the Court 18 to decide, not the Jury, the Court 19 must first decide whether it was 20 freely and voluntarily given. 21 Under Article 451: 22 "Before what proposes to be a concession 23 can be introduced into evidence, it 24 must be affirmatively shown that it 25 was free and voluntary, not made 1 under the influence of fear, duress, 2 3 or promises." 5 Now, that means that the State must 6 affirmatively show to the Court 7 out of the presence of the Jury 8 that the statement, whether oral 9 or written, is not tainted with 9 some illegality. 10 Now, this particular case is not up to 11 Mr. Shaw or his counsel, nor, for 12 that matter, to the State, that 13 his constitutional rights were not 14 violated; it is up to me to make 15 that decision, not Mr. Shaw. He 16 can say what he wants. But the 17 controlling point as I see it in 18 this case is, as Mr. Dymond well 19 said a moment ago, this information 20 printed, typewritten on the finger- 21 print card wherein it states that 22 Mr. Clay Shaw has an alias of Clay 23 Bertrand, could have only gotten on 24 there in one of two ways, either 25 Mr. Habighorst put it on there 1 himself without questioning Mr. 2 Shaw, and got the information which 3 originated with Officer Ivon, or he 4 did question him and he got the 5 information from Mr. Shaw himself. 6 Now, if he got the information in the 7 first instance, then it is a self- 8 serving declaration and it should 9 not be imputed to Mr. Shaw in any- 10 wise, irrespective of Miranda and 11 Escobedo. 16 . . . In the other instance, if he did in fact 17 admit orally to Officer Habighorst 18 that he had an alias -- which I 19 told you yesterday I seriously 20 doubt -- then Mr. Habighorst did 21 not follow the Miranda decision by 22 telling Mr. Shaw, I am going to ask 23 you a question that may inculpate 24 you or may be detrimental to you, 25 and you do not have to answer. But 1 Officer Habighorst did not do that. 2 So if he did not do that, it violates 3 the principles of the Miranda and 4 Escobedo decisions. 5 Now the second point. When Mr. Wegmann, 6 Eddie Wegmann, and Mr. Panzeca -- 7 particularly Mr. Eddie Wegmann 8 wanted to be with his client and 9 Captain Curole -- I find no fault, 10 because he is not expected to know 11 the latest Supreme Court decisions 12 of the United States, but in the 13 Escobedo case we had the same 14 principle, his attorney was clamor- 15 ing to get to his client and they 16 wouldn't let him get to him, they 17 wanted to question him and try to 18 get a confession, and the general 19 principle of law is that Captain 20 Curole had no right, irrespective 21 of a police regulation that a man 22 cannot be with his client when he 23 is being fingerprinted, so I see 24 clearly that Captain Curole's 25 instructions violated the Danny 1 Escobedo case. 2 Now, under both situations -- and that 3 is the only way the typewritten 4 information could have gotten on 5 this fingerprint card -- in both 6 instances it was illegally obtained. 7 So I have reconsidered and I will 8 not change my decision.Of Haggerty's decision, Garrison writes:
We knew that there was no constitutional requirement that an attorney be present for routine questions at booking. That was not the law then and it is not the law even today. But Judge Haggerty was changing the law before our eyes (On the Trail of the Assassins, 1991 ed., 283).The validity of Haggerty's ruling is a question for legal scholars. I would simply suggest that Garrison had ample warning that the arrest record's admissibility would be contested. For example, Garrison allowed Officer Habighorst to be interviewed by the news media about the arrest record prior to jury selection (in July 1968, in fact), and allowed a copy of the arrest record to be released. This alone could have gotten the arrest record thrown out. Would Garrison have allowed this to happen if he expected the item to be admitted into evidence? (New Orleans States-Item; February 20, 1969; Lambert, False Witness, 317 fn. 10.)
"We instructed the court attache to call Officer Habighorst. But before Habighorst could take the stand, Judge Haggerty suddenly ordered the jury removed from the court" (On the Trail . . . , 1991 ed., 283).First of all, the jury was not removed immediately prior to Habighorst's testimony, but only after that of Lou Ivon and Louis Curole. Garrison is trying to give the impression that the arrest record had not been expected to be controversial, when the State knew well in advance it would be, and witnesses had been called to provide a foundation for introducing the card into evidence.
Little lie; big effect.
Second, Haggerty did not "suddenly" -- or unilaterally, as is strongly implied -- order the jury removed. Garrison is falsely insinuating improper conduct on Haggerty's part.
Slightly bigger lie; exponentially bigger effect.
"Then he informed Jim Alcock, who was questioning at the time, that he was going to rule inadmissible the fingerprint card, signed by Shaw, on which 'Clay Bertrand' had been typed in the space designated for 'alias'" (On the Trail . . . , 1991 ed., 283).By skipping over the full day's testimony, Garrison has made it appear that Haggerty's decision was made unilaterally, that the decision had been predetermined, and an implication of sinister, perhaps conspiratorial intent is attached to these actions.
Are these errors of omission or outright lies? It's your call.