Did the Judge Summarily Exclude the Testimony of Officer Habighorst? Concealing Problems With Key Testimony by 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).

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 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. Shaw

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 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.

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).

Let's review:

"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).

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).

Are these errors of omission or outright lies? It's your call.

• Other lies Garrison told in his book On the Trail of the Assassins.
• An assessment of the strength of Garrison's "case" against Clay Shaw.
• Erratic, crackpot personal behavior on Garrison's part.