DIRECT EXAMINATION BY MR. DAVIS:
Q. Doctor, what is your business and your residence address?
A. 169-llth Street San Francisco.
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 University of California called, "Minds on Trial."
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 California, Minds on Trial." I'd like to ask that this be marked at this time so I can show it to him and ask him questions.
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.
THE COURT: I have no option as to who reads. You can both read it if you desire. Now, read it and read it out loud.
MR. DAVIS: "2/76 -- Joel Fort, M.D., National Center for Solving Special Social and Health Problems -- Fort Help,
San Francisco. Because of many requests from media representatives, have reluctantly agreed to provide some general background on the role of the expert witness based on my more than 20 years experience with criminals in and out of courtrooms and including some 270 criminal cases in 22 states where I qualified as an expert and was called by defense or prosecution. First I want to formally request that my name or photo not be used now or if I testify. As a specialist in social and health problems and pioneer in developing new programs and new ways of helping people over many years, I have become convinced that crime and violence are so exploited and sensationalized by the media that it is destructive to society, victims, dependents and their families. I urge you individually and collectively to stop more than minimal coverage of this case and instead devote your time and energy to exposure of incompetence and corruption in city, state and federal government; serious social and health problems which are growing worse; or other criminal trials involving ordinary people and often more serious charges. To the extent you continue the present pattern (and each of us has the right and opportunity to make an individual moral decision about whether or not to participate in harmful behaviors), I urge that the names of individual doctors, lawyers or family members of a defendant not be used so as to decrease the symbiotic exploitation of crime. For myself, I request anonymity because of my right of privacy, my desire to avoid exploitation of crime, and my wish to avoid the personal danger which is endangered by media coverage. Also, I do not find it an honor to join politicians, actors, public relations creations, ads, and assassins as 'celebrities.'
"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 California courts, diminished capacity) is raised. It is not customary to do so otherwise, and in the Hearst case, the Judge has not yet ruled on whether he will allow expert testimony. Regarding experts, among the many questions I commend to your attention are:
"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: "University of California Extension, Minds on Trial, Psychology. When a suspected killer is caught and brought to trial, what are the factors at play in the courtroom? Behind the garish headlines and sensational journalism we search for truth, but few of us know how our social control of deviant behavior really operates or at what cost. This program attempts to explain and explore what we can know about the mind of the killer when on trial before the society that judges him. It will deal with sensational criminal trials, fallible psychiatry and the protection of psychiatry. (sic) Some of the questions to be explored are.--"
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: 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 University of California Santa Barbara it was not printed that way.
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 University of California," and this is that course?
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 Los Angeles—
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 Monterey, California in 1969.
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 Santa Cruz, to describe the differences between conventional psychiatric approaches to expert testimony and what I thought was the more objective and comprehensive approach. Therefore, the answer to your question is yes, that the excerpts from that transcript that were sent in to Grosset & Dunlap along with the detailed outline do contain comments about the kinds of backgrounds that experts often come from, their tendency to seek information from only one side rather than from both, their tendency to uncritically accept everything a defendant tells them as fully apropos, so the answer is yes.
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 New York, the Norton Company. They ignored the subpoena and do not seek to quash it.
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.