Full opinion text
ORDERS GRANTING IMMUNITY AND COMPELLING TESTIMONY BEFORE GRAND JURY HAUK, District Judge. These proceedings arise out of the investigation of interstate racketeering, wagering, gambling and related activities in southern California, Nevada, Florida and the East Coast being conducted by the Central District Grand Jury, Philip T. Wilson, Foreman, with its inquiry focused upon alleged violations of the Federal Statutes prohibiting the Interstate Transmission of Wagering Information; Interstate Interference with Commerce by Threats or Violence (Racketeering and Extortion); Interstate and Foreign Travel or Transportation in aid of Racketeering Enterprises ; Interstate Transportation of Wagering Paraphernalia; Attempt to Evade or Defeat Occupational Tax (Wagering); Violations of the Federal Communications Act; and other violations of the laws of the United States. At the time of these proceedings the Grand Jury had begun to zero in specifically upon a meeting of big-name gamblers and underworld figures reportedly held in October 1965 at the Palm Springs residence of two Las Vegas showgirls, the Grand Jury witnesses who are here now before the Court: Natalie Loughran (who uses the stage name of Vickie Lockwood) and Carolyn Kikumura, who is also known as Carol Kimura. Two alleged participants in the meeting were Vincent (Jimmy Blue Eyes) Alo, and Anthony (Fat Tony) Salerno, reputed New York members of the Cosa Nostra “family” headed by Vito Genovese. Perhaps because Genovese was a top delegate to the infamous convention of sixty crime chieftains November 14, 1957 at Apalachin, New York, this Palm Springs meeting was quickly dubbed “Little Apalachin” by the press. Others who reportedly attended the Palm Springs gathering, which apparently lasted for several days, were Jerome (Jerry) Zarowitz, credit manager of Caesar’s Palace on the Las Vegas “Strip”, Elliott Paul Price, a host at Caesar’s Palace, and Ruby (Fat Ruby) Lazarus, prominent Miami Beach and New York City bookmaker. INITIAL COURT HEARING: ORDERS CONFIRMING IMMUNITY AND COMPELLING TESTIMONY In response to subpoenas, the two showgirls appeared on December 15, 1967 before the “Wilson” Grand Jury in the United States Court House, Los Angeles, and each of them was questioned separately. Prior to questioning, of course, each was sworn, asked her correct name and stage name and, after admitting she had had an opportunity to consult with counsel, was advised that the purpose of the Grand Jury was to investigate violations of the laws of the United States and particularly those dealing with interstate racketeering, wagering, gambling and related activities. The statutes herein-above referred to and cited at Footnote 1 were specifically mentioned. Then each witness was informed that she was not before the Grand Jury as a prospective defendant but rather as a witness with information that could aid in the investigation. Each admitted that her attorney had explained her constitutional rights to her, including her right under the Fifth Amendment to answer any questions, the truthful answer to which might tend to incriminate her personally of a crime. Each witness was advised that one of the statutes with which the Grand Jury was concerned related to the Federal Communications Act which contains provisions whereby, if she should assert the Fifth Amendment rather than answer the questions, the Grand Jury might seek the help of the Court to order her to answer the questions. Moreover, each witness was told that any such order would operate to grant her immunity so that she could not be prosecuted for anything she might answer in response to the questions propounded by the Grand Jury, with the cautionary admonition, however, that this immunity would not extend to perjury. Finally, each witness was warned that it was the Grand Jury’s determination to ask the Court to confirm the immunity and compel her to answer, should she assert the Fifth Amendment and refuse to answer. After these preliminaries, each witness was asked the following questions and invoked the Fifth Amendment in reply: “Q Miss Kikumura, do you know Jerry Zarowitz? “A I refuse to answer on the grounds that it may tend to incriminate me. “Q Do you know Elliott Paul Price ? “A I refuse to answer on the grounds that it may tend to incriminate me. “Q Do you know Tony Salerno? * “A I refuse to answer on the grounds it may tend to incriminate me. “Q Do you know Vincent Alo? “A I refuse to answer on the grounds it may tend to incriminate me. “Q Do you know Ruby Lazarus? “A I refuse to answer on the grounds it may tend to incriminate me. “Q In October of 1965 were you present at a meeting in Palm Springs, California, or Jerry Zarowitz, Elliott Paul Price, Tony Salerno, Vincent Alo and Ruby Lazarus ? “A I refuse to answer on grounds it may tend to incriminate me. “Q Did the meeting take place at 893 Camino del Sur, Palm Springs, California, in October of 1965? “A I refuse to answer on grounds it may tend to incriminate me. “Q Did you reside at 893 Camino del Sur, Palm Springs, California, at any time during October 1965? “A I refuse to answer on grounds it may tend to incriminate me. “Q Did you observe the telephones at 893 Camino del Sur, Palm Springs, California, being used for the purpose of placing wagers ? “A I refuse to answer on ground it may tend to incriminate me. “Q Were the phones used by Tony Salerno for the purpose of conducting gambling business? “A I refuse to answer on ground it may tend to incriminate me. “Q Did Ruby Lazarus use the phones to place or lay off wagers? “A I refuse to answer on ground it may tend to incriminate me. “Q Did Jerry Zarowitz use the phones to call Las Vegas to transmit wagering information? “A I refuse to answer on ground it may tend to incriminate me. “Q Did Elliott Paul Price use the phones to call Massachusetts to conduct a gambling operation? “A I refuse to answer on ground it may tend to incriminate me. “Q Who paid the bill for the charges incurred in October for the use of the telephones at 893 Camino del Sur, Palm Springs, California? “A I refuse to answer on ground it may tend to incriminate me. “Q Miss Kikumura, you are excused from the room. I would ask you to stay in attendance at the hall because we will be proceeding presently to the court. “A Thank you.” In addition to those same questions asked of Miss Kikumura, Miss Loughran was asked two further questions: “Q For what purposes was an additional phone, No. 325-6896, installed in the residence at 893 Camino del Sur, Palm Springs, California, on October 11, 1965? “A I refuse to answer on the grounds that the answer may tend to incriminate me. “Q Who ordered the additional phone installed at the residence at 893 Camino del Sur, Palm Springs, California ? “A I refuse to answer on the grounds that the answer may tend to incriminate me.” Immediately after this interrogation, the Assistant United States Attorney brought the Grand Jury and the witnesses Kikumura and Loughran before the Court and filed the following “APPLICATION FOB IMMUNITY”: “The United States of America moves this Honorable Court for an order instructing Natalie Loughran, also known as Vickie Lockwood, and Carolyn Kikumura, also known as Carol Kimura, to testify and produce evidence pursuant to the provisions of Title 47, United States Code, Section 409 (1), and respectfully alleges as follows: “1. On December 13, 1966, a duly constituted grand jury began an inquiry into alleged violations of the Federal statutes prohibiting the Interstate Transmission of Wagering Information, Title 18, United States Code, Section 1084; Interstate Transportation in Aid of Racketeering, Title 18, United States Code, Section 1952; Interstate Transmission of Wagering Paraphernalia, Title 18, United States Code, Section 1953; Attempt to Evade Occupational Tax (Wagering), Title 26, United States Code, Sections 4411, 4412, 7201; and violations of the Federal Communications Act, Title 47, United States Code, Sections 203 and 501, and other violations of the laws of the United States. “2. Natalie Loughran, also known as Vickie Lockwood, and Carolyn Kikumura, also known as Carol Kimura, were subpoenaed to appear and did appear before the grand jury on December 15, 1966. “3. In response to numerous questions related to activities falling within the scope of the above statutes, respondents invoked the Constitutional privilege against self-incrimination and refused to answer. “4. This application for immunity is being made in good faith, with the personal approval of the Attorney General, in the belief that the witnesses can give important testimony which will be pertinent to the grand jury inquiry. “WHEREFORE, the United States of America requests the Court to ORDER Natalie Loughran, also known as Vickie Lockwood, and Carolyn Kikumura, also known as Carol Kimura, to answer the questions which they have heretofore refused to answer, and to testify and produce evidence relating to all matters pertinent to the pending grand jury inquiry, pursuant to the provisions of Title 47, United States Code, Section 409(1).” After ascertaining that both witnesses were represented by counsel, Miss Loughran by two attorneys, Daniel N. Busby, Esq., and Thomas F. Call, Esq., and Miss Kikumura by Mr. Call, the Court, pursuant to Federal Rules of Criminal Procedure, Rule 6(e) directed the Grand Jury’s certified shorthand reporter to take the stand, testifying and read from her notes the Grand Jury’s questions and the answers of the witnesses thereto, as hereinabove set forth. Thereupon, counsel for both witnesses were given an opportunity to ask any questions but they declined to do so. In this state of the record, it is clear that the Court has the duty to invoke its civil contempt power which must be exercised in two stages. First, the Court will make its order recognizing and confirming the immunity automatically granted to the witnesses under the Federal Communications Act, 47 United States Code § 409 (£) by compelling the witnesses to answer the questions before the Grand Jury. Secondly, if they refuse to comply with the Court order and persist in declining to answer the questions of the Grand Jury, the Court will hold them in civil contempt and commit them to custody until they shall comply with the Court order and answer the questions. Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); In re Grand Jury Investigation of Giancana, 352 F.2d 921 (C.A.7th, 1965) cert. den. 382 U.S. 959, 86 S.Ct. 437, 15 L.Ed.2d 362 (1965); United States v. Coplon, 339 F.2d 192 (C.A.6th, 1964). The pertinent provisions of the Immunity Section of the Federal Communications Act, 47 United States Code § 409 (Z) compel testimony and the witness cannot refuse to answer on grounds of self-incrimination. But “no individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that any individual so testifying shall not be. exempt from prosecution and punishment for perjury committed in so testifying.” This section, like other immunity statutes, is patterned after the Compulsory Testimony Act of 1893 (27 Stat. 443, 49 U.S.Code § 46) which related to proceedings under the Interstate Commerce Act. The Act of 1893 was upheld in Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896) and for this reason was made the basis of later immunity statutes, including the Federal Communications Act immunity which cloaks the two witnesses now here before the Court. Provisions in similar language appear in at least twenty-six other Acts of Congress, and all of the provisions are identical with the Federal Communications Act provision in the scope of the immunity afforded. Brown v. Walker, supra, involved a refusal to testify upon a claim of privilege in a grand jury investigation of violations under the Interstate Commerce Act. The Court analyzed the Act of 1893 in the light of tests laid down in the earlier case of Counselman v. Hitchcock, 142 U. S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). In Counselman, the Court held an 1868 immunity statute invalid because it did not afford absolute immunity against future prosecution. In noting that, the Act of 1893 met the requirements declared essential in Counselman, the Supreme Court in Brown v. Walker stated at page 610 of 161 U.S. (16 S.Ct. 652, 40 L.Ed. 825): “While the constitutional provision is justly regarded as one of the most valuable prerogatives of the citizen, its object is fully accomplished by the statutory immunity, and we are therefore of opinion that the witness was compellable to answer, and that the judgment of the court below must be affirmed.” Numerous Circuit Courts of Appeal have had occasion to construe the immunity provisions of 47 United States Code § 409 (Z) and have uniformly held that the immunity conferred by the statute involved here is the automatic statutory consequence of compulsory testimony. It is true that it falls into the group of statutes which require a witness to claim self-incrimination in order to testify and gain immunity from prosecution. But once that is done by the witness, the immunity provision of the Federal Communications Act, 47 U.S.C. § 409 (Z) is “self-executing”. Marcus v. United States, 310 F.2d 143, 146 (C.A. 3rd, 1962), cert. den. 372 U.S. 944, 83 S.Ct. 933, 9 L.Ed.2d 969 (1963); In re Grand Jury Investigation of Giancana, 352 F.2d 921, 925 (C.A.7th, 1965), cert. den. 382 U.S. 959, 86 S.Ct. 437, 15 L.Ed. 2d 362 (1965); United States v. Coplon, 339 F.2d 192, 193 (C.A.6th, 1964). Moreover, the immunity is as extensive as the testimony. In other words, it is not limited to proceedings or questions based upon or growing out of the Federal Communications Act, and it extends to both Federal and State prosecutions. Marcus v. United States, supra, 310 F.2d at pages 146-147; In re Grand Jury Investigation of Giancana, supra, 352 F.2d at 924-925; United States v. Coplon, supra, 339 F.2d at 193; Murphy v. Waterfront Commission, 378 U.S. 52, 54, 79-80, 84 S.Ct. 1594, 1596, 1610, 12 L.Ed.2d 678, 681, 695-696 (1964). It is elementary that a grand jury is an arm of the court and that refusal to comply with an order of court directing a witness to answer proper questions before a grand jury is a contempt of court. Marcus v. United States, 310 F.2d 143, 146 (C.A.3d, 1962). The appropriate procedure is summarized in Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622, 627 (1966): “There can be no question that courts have inherent power to enforce compliance with their lawful orders through civil contempt. United States v. United Mine Workers, 330 U.S. 258, 330-332 [67 S.Ct. 677, 713-714, 91 L.Ed. 884] (1947) (Black and Douglas, JJ., concurring in part and dissenting in part); United States v. Barnett, 376 U.S. 681, 753-754 [84 S.Ct. 984, 1019-1020, 12 L.Ed.2d 23] (1964) (Goldberg, J., dissenting). And it is essential that courts be able to compel the appearance and testimony of witnesses. United States v. Bryan, 339 U.S. 323, 331 [70 S.Ct. 724, 730, 94 L. Ed. 884] (1950). A grand jury subpoena must command the same respect. Cf. Levine v. United States, 362 U.S. 610, 617 [80 S.Ct. 1038, 1043, 4 L.Ed. 2d 989] (1960). Where contempt consists of a refusal to obey a court order to testify at any stage in judicial proceedings, the witness may be confined until compliance. McCrone v. United States, 307 U.S. 61 [59 S.Ct. 685, 83 L.Ed. 1108] (1939); Giancana v. United States, 352 F.2d 921 (C.A.7th Cir.), cert. denied, 382 U.S. 959 [86 S.Ct. 437, 15 L.Ed.2d 362] (1965). The conditional nature of the imprisonment — based entirely upon the contemnor’s continued defiance —justifies holding civil contempt proceedings absent the safeguards of indictment and jury. Uphaus v. Wyman, 364 U.S. 388, 403-404 [81 S.Ct. 153, 155, 5 L.Ed.2d 148] (1960) (Douglas, J., dissenting), provided that the usual due process requirements are met. Taking the first step, then, in appropriate civil contempt against the two witnesses, the Court compelled them to testify before the Grand Jury, the Loughran mandate reading: “ORDER. The United States of America, having on this date made written and oral application for an order compelling Natalie Loughran, also known as Vickie Lockwood, to testify and produce evidence before a duly constituted Grand Jury of the Central District of California, pursuant to Title 47, United States Code, Section 409(1); and “The said Natalie Loughran, also known as Vickie Lockwood, on December 15, 1966, having declined to answer questions before the said Grand Jury on the ground that her answers might tend to incriminate her, the aforesaid Grand Jury then and there inquiring, inter alia, into possible violations of Title 47, United States Code, Sections 203, 501 and of Title 18, United States Code, Section 1084; it is “ORDERED, that the said Natalie Loughran, also known as Vickie Lockwood, appear forthwith before said Grand Jury and that she be and hereby is ordered and compelled to testify and produce evidence with respect to the matters under inquiry before the said Grand Jury. “DATED: December 15, 1966. A. ANDREW HAUK /s/ A. ANDREW HAUK United States District Judge” SECOND HEARING: ORDER APPOINTING PSYCHIATRIST TO EXAMINE WITNESS LOUGH-RAN The next day (December 16, 1966) the Grand Jury and Assistant United States Attorneys returned to the Court with the witness Natalie Loughran and an oral application for appointment of a psychiatrist to examine her, requesting the Court again to make public certain portions of the Grand Jury transcript essential to the application. Once again after ascertaining that the witness Loughran was represented by her attorney, Daniel N. Busby, Esq., who was present, the Court ordered the Grand Jury’s certified shorthand reporter to disclose the testimony of the witness Loughran that morning before the Grand Jury: “Q. What did you do with that money before utilizing it to make a down payment? Did you deposit it in some account of yours? “A. I probably did. I don’t remember. “Q. Which account, Miss Loughran? “A. Well, I only have one bank. “Q. Are you certain of that, Miss Loughran? “A. I am not even certain of anything any more. “Q. Well, it would be for your own good for you to attempt to be certain and think about these answers before you give them. “A. I told you I am really not capable of answering any of your questions. “Q. Miss Loughran, do you feel as though it would be helpful for you to be examined by a medical doctor to determine your capacity to testify here? “A. I don’t know that a medical doctor would be of any assistance to you. If he conferred with my psychiatrist, perhaps, as to my emotional status and my irrationality when I become emotional and find that I am suicidal and have a low emotional ebb, fine. Because that is really where it is. That is the truth. “Q. Well, Miss Lockwood, if you feel that you are not capable of truthfully and accurately answering our questions by reason of the fact that your mind is for some reason clouded, then perhaps it would be advisable to have the District Court appoint a psychiatrist who would conduct an examination of you to determine what your present mental status is. “A. That would be fine. That would be definitely fine. “Q. Miss Loughran, I am going to ask the foreman of the Grand Jury to excuse you from this room to remain on this floor so that a United States District judge can be contacted and suitable arrangements may be made today for your examination, so that this Grand Jury may have the results of that examination and continue its investigation. “A. That is fine. “Q. Would the foreman so direct. “THE FOREMAN: You are so ordered.” Whereupon the following proceedings occurred in Court: “BY MR. COLEMAN: “Q. Does that conclude her testimony? “A. That does, Mr. Coleman. “Q. Which Assistant U. S. Attorney was asking those questions? “A. Mr. Stephen Miller. “MR. COLEMAN: Your Honor, I have nothing further of Miss Pearson. “THE COURT: You may step down. “Is the witness Natalie Loughran, also known as Vickie Lockwood, here? “MR. BUSBY: The respondent is present with Attorney Daniel Busby. “THE COURT: I think I would like to have her take the stand and see how she is feeling, and let the court have a feeling about it. I will ask her a few questions. “Come over here and be sworn. “NATALIE LOUGHRAN, called by the court, being first duly sworn, testified as follows: “THE CLERK: Please be seated. “State your full name for the record, please. “THE WITNESS: Natalie Loughran. “THE COURT: You are also known as Vickie Lockwood? “THE WITNESS: Victoria Lockwood. “THE COURT: You recall yesterday I made an order that you should answer questions propounded to you by the Assistant U. S. Attorney in the Grand Jury room before the Grand Jury; do you remember that? “THE WITNESS: Yes. “THE COURT: And the order provides that you — in view of the fact that you have been granted immunity, that is, you cannot be charged or prosecuted in connection with any matters for any offenses in connection with any matters that you would be examined upon in the Grand Jury, you understand that? “THE WITNESS: Yes. “THE COURT: In view of that, the court ordered that you answer. Do I understand that you just don’t remember, or you are ill, or what is it why you don’t answer the questions ? “THE WITNESS: Well, I thought— I was trying to answer to the best of my ability. Unfortunately I am rather confused. “THE COURT: Well, I suppose everybody gets confused at times. Aren’t you able to answer these questions? “THE WITNESS: Well, sir, I have pains behind my ears, it is hard to explain them, actually; they are like shooting pains up the back of my head, and I just don’t feel very well. “THE COURT: You see, because if the court came to the conclusion and made a finding that you were deliberately not answering these questions, although you had the ability to, and that you were saying you don’t remember or you can’t remember, and so on, and you were, in effect, say, kidding the Grand Jury, not telling the truth, I have the power to commit you for contempt. You understand that? “THE WITNESS: Yes, sir, I do. “THE COURT: And to find you guilty of criminal contempt, and sentence you until you are willing to answer questions. You understand that? “THE WITNESS: Yes. “THE COURT: You are telling the court, are you, that you are trying to answer the questions to the best of your ability? “THE WITNESS: Yes. “THE COURT: Would you like to go back and try to answer the questions again ? “THE WITNESS: No. “THE COURT: Have another chance ? “THE WITNESS: Not now. “THE COURT: Why not? “THE WITNESS: I don’t feel capable of doing that right .now. “THE COURT: Why not? What is it that bothers you? “THE WITNESS: I just feel absolutely ill, that’s all. “THE COURT: Physically? “THE WITNESS: Mentally, physically; my stomach, my head. “THE COURT: Well, I am going to do this. You are represented here by counsel, Mr. Busby? “MR. BUSBY: That is correct, your Honor. “THE COURT: Do you have any questions you want to ask her? “MR. BUSBY: No, your Honor. “THE COURT: Mr. Coleman has asked that the court appoint a psychiatrist from the panel, qualified panel of court psychiatrists, to examine you, Miss Loughran, and determine and report to the court whether or not you are capable of answering and able to understand the proceedings, and physically and mentally able to be present and continue to be examined. “May I ask this ? If I make the order that you appear at a certain place, will you definitely promise to appear there? “THE WITNESS: Yes, sir. “THE COURT: I mean to be examined by this doctor? “THE WITNESS: Yes. I want to be examined. “THE COURT: If I am not sure you would appear I have two marshals here, a man and a lady marshal, who will escort you there. “THE WITNESS: There is no need for that.” Thereupon the Court made and entered the following “ORDER APPOINTING PSYCHIATRIST”: “The question of the mental competency of the respondent Natalie Loughran, also known as Vickie Lockwood, a duly subpoenaed witness before the duly constituted Grand Jury, having been raised, and the Court being advised that the aforementioned respondent has stated that she is so mentally incompetent as to be unable to understand the proceedings before the Grand Jury, or to answer questions propounded to her before said Grand Jury, and the Court being fully advised in the matter, and on its own motion, as well as the motion of the United States Attorney, “IT IS ORDERED THAT Dr. Eric Marcus, whom the Court finds is a qualified and competent psychiatrist, be and he hereby is appointed to examine said respondent and report to this Court whether: “1) The respondent is presently unable to understand the proceedings before the Grand Jury and to answer questions propounded to her before the Grand Jury; and “2) What the probable prognosis of respondent’s mental competency as respects the foregoing question shall be, whether permanent or temporary in nature; and whether the further appearance and questioning of the respondent before the Grand Jury would be temporarily or permanently injurious to her mental or physical health. “IT IS FURTHER ORDERED that the respondent shall produce herself forthwith at 8820 South Sepulveda Boulevard, Los Angeles, California, and at such other times and places as the said Dr. Marcus may deem necessary for the purpose of such examination and that said respondent afford such cooperation and information as may be required in properly conducting such mental examination; “IT IS FURTHER ORDERED that such examination be at the expense of the United States Government and the report of Dr. Marcus shall be sent to the undersigned Judge of this Court with copies to the plaintiff and to Daniel Busby, attorney for respondent whose address is 9000 Sunset Boulevard, Suite 900, Los Angeles 90069. “DATED: December 16, 1966. A. ANDREW HAUK /s/ A. ANDREW HAUK UNITED STATES DISTRICT JUDGE” After this order was signed, a further colloquy took place in which the Court admonished the witness of the seriousness of the situation and the necessity of her dealing frankly with the Court and with the Grand Jury: “THE COURT: Now, Miss Loughran, be sure and go along with your attorney now and appear at the office of Dr. Eric Marcus, 8820 South Sepulveda Boulevard, forthwith, for examination by Dr. Marcus in accordance with this order which I am now signing, I want to inform you of it, and your attorney will have a copy of it. Mr. Busby, in fact, has already been given a copy. It is to the effect that you should be so examined, and present yourself to Dr. Marcus’ office for examination forthwith. “This will be at the expense of the Government, and the report to be sent to the court on or prior to Tuesday morning at 9:30, at which time you, Miss Loughran, are directed and ordered to report here in this courtroom at 9:30, Tuesday morning, December 20, at 9:30. At that time the court will consider the report and determine what to do. “I will suggest this, Miss Loughran. Be sure and be frank and completely open and frank with the psychiatrist. And I would further admonish you that we mean business, we are not fooling around. If you are able to remember and able to answer questions, you answer them, for there is only one alternative, and under the law we have to take that alternative, that is incarceration if you don’t answer the questions. “Whether you protect a boyfriend or girlfriend, or whatever it is, you have been granted immunity and it is no excuse, you can’t hide on the Fifth Amendment when you have been granted immunity. “Do you understand that? “THE WITNESS: Yes, sir. “THE COURT: You be sure and be frank and honest with the psychiatrist” THIRD HEARING: ORDER FINDING WITNESS LOUGHRAN MENTALLY COMPETENT AND COMPELLING TESTIMONY WITH PSYCHIATRIC AID AND TREATMENT AVAILABLE AT ALL TIMES. On December 20, 1966, the Court convened at the time previously set for the purpose of hearing the testimony and examining the report of the court-appointed psychiatrist, Dr. Eric Marcus and the following proceedings occurred: “MR. MILLER. [Stephen D. Miller, Assistant United States Attorney] Your Honor, once again the government and the Federal grand jury seeks the assistance of the court in regard to the matter of Natalie Loughran and her testimony before the grand jury. “THE COURT: All right. “MR. MILLER: At this time, your Honor, we wish to state that a copy of the psychiatric evaluation of Natalie Lockwood, prepared by Dr. Marcus, has been served upon defense counsel, together with the points and authorities in regard to the competency of a witness to testify. “At this time, your Honor, the government would wish to call Dr. Marcus as a witness in support of the government’s position that Natalie Loughran should be directed to answer questions before the grand jury as we had discussed the other day. “THE COURT: Is Miss Lockwood here? “MR. BUSBY: Yes, she is, your Hon- or. “THE COURT: I wonder if counsel would come to the counsel table with her over here. I want to be sure she is present with counsel. “Is the appearance indicated? Mr. Busby is representing Miss Lockwood. “As I understand from my bailiff, she wasn’t here when we started this proceeding, so we had better start over. “Mr. Miller, you are appearing here in the case before this court entitled In the Matter of Natalie Loughran, also known as Vickie Lockwood, also known as Victoria Lockwood, Miscellaneous No. 1598 — Criminal, on the question of Miss Lockwood or Loughran’s competency and ability to testify as a witness before the grand jury, as ordered by the court upon the granting of immunity? “MR. MILLER: That is correct. “At this time the government would wish to call Dr. Eric Marcus to the stand to testify with regard to his examination of Miss Loughran as directed and ordered by the court. “THE COURT: All right. Dr. Marcus. “THE CLERK: Mr. Busby, would you please have counsel state his appearance ? “MR. CLARK: Dwain Clark, associated with Mr. Busby, if it please the court. “THE COURT: All right. “DR. ERIC MARCUS called as a witness by and behalf of the government, having been first duly sworn, was examined and testified as follows : “THE CLERK: Please be seated. “State your name for the record, please. “THE WITNESS: Eric Marcus, M-a-r-c-u-s. “DIRECT EXAMINATION: “BY MR. MILLER: “Q Dr. Marcus, what is your profession? “A I am a psychiatrist. “Q How long have you been a psychiatrist ? “A Since 1960. “Q Doctor, where is your office located ? “A 8820 South Sepulveda Boulevard. “Q Would you state the educational institutions that you attended in connection with the preparation for your profession ? “A I was trained at UCLA, Harbor General Hospital, and the Veterans Administration Hospital in Los Angeles. “Q Are you licensed to practice medicine in the State of California? “A Yes. “Q Are you a member of any professional organizations? “A Yes. “Q Would you please state them? • “A In addition to the usual organizations that doctors belong to, I belong to a series of organizations in forensic psychiatry. These are organizations that deal with the law and psychiatry. “Q Doctor, would you state what forensic psychiatry is? “A This is the field of psychiatry that deals with legal matters, legal processes. “THE COURT: What organizations? May I ask what organizations you belong to, Doctor? “THE WITNESS: Yes. The American Society of Criminology, the Association for the Psychiatric Treatment of Offenders, the National Council on Crime and Delinquency; I am past president of the Southern California Society for Psychiatry and the Law; and I am currently secretary of the West Side Medical Legal Society. “THE COURT: What do you belong to — what is your professional membership in any boards or associations indicating a specialization in psychiatry? “THE WITNESS: Yes. I am a Diplómate of the American Board of Psychiatry and Neurology, and I of course belong to the Los Angeles County Medical Association and the American Medical Association. “BY MR. MILLER: “Q Doctor, have you had occasion to testify in court with respect to the examination of patients? “A Yes. “Q I take it that was in connection with psychiatric examinations ? “A That’s correct. “Q Have you had occasion to teach your speciality? “A Yes. “Q When has that occurred, sir? “A I am currently an Assistant Clinical Professor of Psychiatry at USC, and I am involved in the teaching program of forensic psychiatry to attorneys, judges, probation officers. “Q Have you been a consultant to any federal state or local governmental agencies ? “A Yes. “Q Would you please state what those agencies have been? “A I was formerly consultant to the California Youth Authority, and am currently consultant to the Los Angeles County Probation Department. Also, I consult at Terminal Island Prison for the Department of Justice. “MR. MILLER: Your Honor, the government submits that Dr. Marcus has been qualified as an expert and may testify in this matter. “THE COURT: Yes, I so find. “BY MR. MILLER: “Q Dr. Marcus, have you been appointed by the court to examine Natalie Loughran, also known as Vickie Lockwood? “A Yes. “Q Have you had occasion to read the order of the court dated December 16, 1966, directing this examination? “A Yes. “Q Did you, in fact, conduct such an examination ? “A Yes, I did. “THE COURT: Is she here in the court room ? “THE WITNESS: Yes. “THE COURT: Can you point her out? “THE WITNESS: The lady in the white leather coat. “THE COURT: Seated at counsel table to my right? “THE WITNESS: Yes. “THE COURT: Let the record show he has pointed to the witness Natalie Loughran, also known as Vickie Lockwood. “BY MR. MILLER: “Q When did the examination of Miss Lockwood occur? “A It took place last Saturday. That would be the 17th of December. “Q Where did the examination take place, sir? “A In my office. “Q How long did the examination last? “A The total examination lasted four and a quarter hours. That included, partly, psychological testing and, partly, interviewing. “Q Would you state, sir, if you would, what the examination included, what procedures were utilized? “A. The clinical aspect involved an interview. An interview includes, actually, more than just the words the patient speaks, but an observation of the patient’s behavior. The other part of the examination was an extensive series of psychological testing. “Q Would you describe for us what psychological testing was given, what tests were actually performed? “A The Rorschach test, the thematic apperception test, the Wechsler adult intelligence scale, the Minnesota multiphasic personality inventory, the four-sentence completion test, the house-tree-person test. “Q Doctor, what information was available to you and made available to you in connection with this case in your examination of Miss Loughran? “A In addition to the report of the tests, I had some information from the U. S. District Attorney, U. S. Attorney Mr. Coleman, plus a brief conversation with Mr. Busby, and an interview with the witness’ sister. “THE COURT: Mr. Busby is Miss Loughran’s attorney? “THE WITNESS: Yes. “THE COURT: What is the name of her sister? “THE WITNESS: Her sister’s name is Doris Gathrid. “BY MR. MILLER: “Q Of course you stated, did you, that you did have an interview with Miss Loughran herself? “A Yes, I did. “Q Did you talk to her with regard to the circumstances of this situation, that is, her testimony before the federal grand jury? “A Yes. “Q Doctor, have you formed an opinion as to whether Natalie Loughran can appreciate the obligation of an oath? “A Yes. “Q And what is that opinion, Sir? “A My opinion is she can appreciate the obligations of an oath. “Q Have you formed an opinion, Doctor, as to whether or not Miss Lough-ran has the capacity to give a correct account of matters which she has seen and heard, based upon questions propounded to her before the federal grand jury? “A Yes, I feel she has that capacity. “Q Doctor, would you state your reasons ; that is, the reasons that you have in forming your opinion? “A I feel that although at the beginning of the four-hour examination she was quite upset, by the time 45 minutes had elapsed she had calmed down sufficiently so that I felt that an examination could be conducted without any great difficulty. By the end of the four hours she was still in — she progressively improved during the four hours, rather than getting worse, so that by the end of that time she was quite capable and competent, had regained her sense of humor, and I thought was in adequately good health. “Q Doctor, from your observation of Miss Loughran during the examination, would you describe to the court her alertness, her level of alertness? “A I felt her level of alertness was quite adequate. There was nothing specifically deficient in it. She answered every question. She understood what was going on. At one point she threw Kleenex around the room, but quickly apologized, picked up the big pieces and put them in the wastebasket. I felt her awareness was not impaired. “Q In your view, Doctor, in your judgment, was Miss Loughran responsive to questioning on your part? “A Yes, she was. Although certain questions would tend to upset her more than others. “Q When you say that certain questions would tend to upset her more than others, would you state what particular area of questioning seemed to upset her? “A I think the main area was asking her to discuss her marital relationships subsequent to her divorce. “Q Doctor, were there any areas in which Miss Loughran claimed a loss of memory? “A No, there were not. “Q Have you formed an opinion as to whether the proceedings before the federal grand jury would be temporarily injurious to Miss Loughran’s physical or mental health? “A Yes, I have an opinion. “Q What is that opinion? “A I feel that there would be some temporary injury to her physical and mental health. “Q When you say ‘temporary injury,’ would you describe to the court what you mean by temporary injury? “A First in regard to physical health, I feel that her ordeal is taxing and she would tend to lose sleep. I feel that her appetite would be quite affected. She would be quite nervous and would probably perspire more than normal. “In general, she would have the physical reactions that one would expect in a stressful situation. “Q Doctor, other than the symptoms that you have described of what one might expect of an individual who was under stress, and that which you have described to the court, are there any other physical factors which you believe, or physical experiences, which you believe Miss Loughran would experience as a result of testifying? “A If by ‘physical’ you mean caused by organic change to the body, no. “Q Would you state whether or not her mental health would temporarily be impaired or injured in any manner? “A Yes, I feel there would be or could be some injury to her mental health on a temporary basis. “Q Once again, when you say ‘injury,’ in this area of mental health, Doctor, would you describe for the court what you mean by that ? “A All I can think of in terms of injury would be that she might develop hysterical symptoms. “Q What do you mean by ‘hysterical symptoms’ ? “A Hysterical symptoms are psychological symptoms that result from a conflict within the individual. They can take many forms, from all kinds of pains to trouble with seeing; it could affect practically any part of the body. “Q Doctor, do you believe that Miss Loughran’s testimony before the federal grand jury would be injurious, either physically or mentally, to her in a permanent sense, that is, in the long run? “A No', I don’t believe these things would cause any permanent injury. “Q Doctor, in your report that has been submitted to the court, you discuss conflict, and you use the term ‘conversion symptoms’; would you describe to the court what you mean by the conversion symptoms as it applies to Miss Loughran ? “A ‘Conversion’ means a change. It is a change from some emotional problem into some physical sign. For example whatever the deep conflict might be, it might manifest itself, say, in blindness or something. There would be a transfer. The problem is converted into the physical. Usually that reduces the level of anxiety. Because once a person has a symptom, he can henceforth worry more about the symptom and not about what it was that is really bothering the individual on a deeper level. “Q Doctor, you have also used the term ‘secondary gain elements’; would you describe that term to the court? “A Yes. A symptom has sort of— the primary purpose of the symptom is sort of a compromise between the person’s conflict. Secondary gain refers to what else that symptom can accomplish for the individual. For example, perhaps a physical illness, which has hysterical qualities to it, might result in a pension for the individual; or a soldier who breaks down in combat, the secondary gain — his original breakdown would be because of all kinds of pressure, the .second would be that he would avoid returning to combat. This would be sort of a bonus. In hysterical symptoms, secondary symptoms is a way — not a way, but is a procedure where the person can avoid distressful situations. “Q Doctor, with reference to your examination of Miss Loughran, would .you describe how conversion symptoms and secondary gain elements apply to her case? “A I think that she has great ambivalence — ‘ambivalence’ means mixed emotions — about testifying. Part of her does not want to testify, and perhaps part would like to cooperate or is being forced to cooperate. This causes a conflict. The conflict winds up being converted into some symptom. Now, the symptom, as I say, is the result of the conflict. The secondary gain features are, if the symptom is severe enough, it will get her out of this undesirable situation. “Q Doctor, has your examination revealed any propensity towards violence, or suicidal tendencies on the part of Natalie Loughran? “A No, it did not. “Q You did, however, mention in your report the term ‘suicidal gestures,’ as it applies to Miss Loughran. Would you go into that for us, please? “A Yes. People who are depressed and who think of committing suicide, one word to characterize that might be the suicidal ideation, or thinking of committing suicide. These individuals are in very grave situation and may go ahead and commit suicide. “Many of the people who eventually commit suicide do so in pretty much of a forthright manner, rather than a suicidal gesture. “Suicidal gesture is more designed to demonstrate to everyone around that the person is in great conflict, is in great distress. The suicidal gesture is not designed to commit suicide. It usually will involve something quite dramatic. And as a rule the person escapes most injuries. Occasionally there will be a minor injury. It is quite rare for the person who makes suicidal gestures to commit suicide. It does occur sometimes by miscalculation; where you had expected to be rescued at the last minute and the rescuer didn’t show up on time. That, of course, can lead to a disaster. But as a rule suicidal gestures are not particularly serious. “Q During the course of the interview with Miss Loughran, did she relate to you any experience which you would characterize as a suicidal gesture, as opposed to a suicidal tendency? “A Yes. She mentioned at least two that I recall. “Q Would you describe those, sir, or state in substance what she said to you during your examination? “A She described one event, which occurred, I believe, about a year ago, and I don’t know the — she didn’t tell me about the circumstances, she did mention that she had cut one wrist twice. I asked her if this was deep enough to have cut the tendons. She stated no. “Again, this to me is more of a suicidal gesture and quite frequently seen in hysterical situations. Also very frequently seen in temporary depressions, when, say, someone is apprehended and while he is awaiting trial he may cut his wrist in prison, in jail. I have seen this many times. “The other event she mentioned, and her attorney mentioned it to me also, occurred I believe Thursday night when it was alleged that she jumped out of a moving car in front of; I believe, the Beverly Wilshire Hotel, and ran down the middle of Wilshire Boulevard. “I asked her about injuries, and she stated that she hadn’t even received a minor injury from this occurrence. “Q With reference to these two incidents, it is your professional judgment that these were two suicidal gestures as opposed to suicidal tendencies, is that your testimony, Doctor? “A Yes, sir. “MR. MILLER: Your Honor, the government has no further questions at this time. “THE COURT: What about the report? Are you going to introduce that? “MR. MILLER: The government would request that the report be filed as an exhibit, and that the report, together with Dr. Marcus’ testimony be considered by the court in making its determination. “THE COURT: Any objection? “MR. BUSBY: No objection, your Honor. “THE COURT: Marked in evidence as Government’s Exhibit 1. That is, the report. “(The exhibit was received in evidence and marked as Government’s Exhibit No. 1.) “THE COURT: All right. Cross examine. “MR. BUSBY: Thank you very much, your Honor. “THE COURT: By the way, for the record I had better note that Exhibit 1 is Dr. Marcus’ report dated December 19, 1966. “That is your report, is it, Doctor ? “THE WITNESS: Yes, sir. “THE COURT: All right. “CROSS EXAMINATION “BY MR. BUSBY: “Q Dr. Marcus, you have stated in response to Mr. Miller’s question that you have testified previously. Could you please tell us on how many occasions? “A I would say between 15 and 20. “Q On each one of those occasions, sir, had you been appointed to examine a person? “A Not all. “Q As to the 50, how many were appointed, please ? “A I thought it was 20. “Q I misunderstood you. I thought you said you had testified on 50 occasions. “A I am sorry. 15 to 20. “Q Of the 15 occasions, how many were you appointed? “A I would say about half. Most of the court appointments have resulted in á report being submitted to the court without any necessity of appearing in person. “Q On those occasions, sir, were you appointed by the federal district court? “A No. “Q In about how many of the times you were appointed were you in fact appointed by the federal district court? “A Of the times that I was in court to testify? “Q Yes. “A This is the first. “Q Doctor, the psychological reports and examinations which were given, do you have a copy or copies of them with you, or the originals, sir? “A Of the psychological report— “Q Yes, the thematic apperception test. “A No, I don’t have the copies of that report. “Q Do you have the results and/or examination of any of the reports, including starting with — you mentioned Rorschach, thematic apperception, Wechsler, Minnesota — do you have any of these available, sir? “A All those were reported in one composite report that was done at my request by a psychologist. I abstracted out of that what I thought was pertinent and placed it in my report. “Q Do you have the one composite report from which you gleaned what you considered to be the pertinent information with you, sir? “A No, I don’t. “Q Doctor, you have had an opportunity this morning, have you not, sir, to have a conversation with Dr. Frederick Hacker? “A Yes, I have. “Q And previous to your conversation with Dr. Frederick Hacker, you have known of Dr. Frederick Hacker’s work, have you not? “A Yes. “Q Taking into consideration your report, Dr. Marcus, for a moment, please, you have stated within the confines of your report that you consider Miss Loughran to be erratic and unpredictable. By that would you please explain the words ‘erratic and unpredictable’ to the court, please ? “THE COURT: You are referring to Exhibit 1, are you, Mr. Busby? “MR. BUSBY: My apologies to you, sir. “Q Referring to your report heretofore marked People’s Exhibit 1. “A Yes. That was— “Q On page 2, paragraph 3, sir. “A Yes. That was abstracted from the psychological testing. What was meant by that is that her personality is such that she is not very consistent in her endeavors, neither in her endeavors nor in her emotional reactions. It is hard for her to carry on anything consistently in a reliable manner. “Q In addition to that, sir, and taking that into consideration, you have stated, have you not, that she does, in fact, have underlying emotional conflict; is that not true ? “A Yes. “Q And she also has — in your opinion she does, in fact, have unconscious conflict; is that not correct, sir ? “A That’s correct. “Q Now, an unconscious conflict is the same, is it not, sir, as an involuntary act; in other words, she does not consciously produce the conflict, but in fact the conflict is produced upon her mind, therefore manifested in her person, that is, her physical person, by whatever the stresses and strains are which are brought to bear upon her person; isn’t that correct, Dr. Marcus? “A Yes. “Q Dr. Marcus, your demeanor on the stand presently, your quietspokenness, your apparent kindness, was that the same manner that you used in the interview of Miss Loughran? “A More so, perhaps— “Q In other words— “A Excuse me. “Q Excuse me. Go ahead, please. “A Would you repeat that question? “Q I will be glad to. “Read it to him, please. “(Question read by the reporter.) “THE WITNESS: Essentially, yes. “BY MR. BUSBY: “Q So that if you were kindly towards her would that not be, in effect, overcoming her apparent apprehension initially, and because you were a kind person and presented yourself in that manner, would that confidence that you allowed her to have in you cause her to be calm? “A Yes, it would certainly help. “Q You did not think at all that the initial confrontation of her being upset was in anything or in any way but genuine, did you, sir? “A I thought it was essentially genuine apprehension about seeing a psychiatrist. “Q At the time when you first saw her, I believe you said she was in tears— maybe that is incorrect — on the verge of tears, I believe you said. Is that true, Doctor ? “A Not exactly. I believe I said that as we were talking she cried at various points. “Q If one was capable of gaining Miss Loughran’s confidence, and that person now having that confidence, it would be normal that the apprehension would leave and the sense of humor or her normal reaction to what is considered to be a friendly face would, in fact, take place; isn’t that correct, sir? “A Not necessarily. It might be normal, but the people I see in the office are usually not normal. The people that calm — it is characteristic of hysterical patients to calm down quite quickly. I see many other patients who, not only don’t they calm down but may get worse during the interview. “Q An hysterical person — and you do agree that Miss Loughran is an hysterical person, do you not, sir; there is no disagreement there, is there ? “A No disagreement. “Q Now, a person who is termed an hysterical person, even though they may or may not know a fact or circumstance perceived by their sense, because of their hysterical emotional state, that would in effect inhibit their ability to relate, would it not? “A Yes. “Q So if, in fact, at a time, hypothetically, if Miss Loughran saw a blue object, and was in fact hysterical, emotionally upset, under a strain, and was asked whether or not, in fact, she had seen the blue object, she would then not necessarily be able to relate, genuinely relate, the fact that it was in fact a blue object; is that not true, sir? “A That’s correct. “Q Dr. Marcus, directing your attention, sir, now to the physical and mental health of Miss Loughran, I would like to direct your attention, sir, to the fact that I believe you responded to a question of Mr. Miller to the effect that the physical manifestations of an emotional conflict would be manifested in two ways, basically, that being here what you have termed her lack of sleep, and possibly not eating. Would this also, that is, this physical manifestation, also cause in Miss Loughran to manifest itself in other areas ? For instance, would it also cause her other problems, such as cosmetic problems; in other words, would blemishes also appear on her face, and also would problems as to her perceptive abilities also take place? For instance, any underlying growths, et cetera, could form about the eyes or the nose ? Would they manifest themselves in that way ? “MR. MILLER: Excuse me. Objection. Are you asking the doctor whether that is a possibility, or whether it is applied to this specific case? “MR. BUSBY: That is a foundational question for the next question as to whether or not he did, in fact, perceive any type of bumps, growths, et cetera, upon the face of Miss Loughran. “THE COURT: You may answer. Overruled. “THE WITNESS: Should I answer the second question that you proposed to Mr. Miller, or the first one to me ? “MR. BUSBY: There are two questions propounded to you, sir. I should say there is one propounded to you. “THE WITNESS: The first one is ‘Yes.’ “BY MR. BUSBY: “Q Did you during your examination notice whether or not any, in fact, had taken place, that is, any type of growths, blemishes, et cetera, any protrusions upon the face of Miss Loughran ? “A Not that I was aware of. She didn’t remove her sunglasses, so I couldn’t tell about that part of her face. But the rest, I wasn’t aware of anything. “Q Very well, sir. “Doctor, you said as to other, you found that there was no organic change ; is that correct? “A I don’t recall those words in my report. Would you point out where I made that statement? “Q Let me do it another way. Mr. Miller asked you a question, sir, whether or not you noticed or whether or not there was any other physical temporary or permanent injury to her, to which you stated, in response to the question, that there was no organic change or would cause no organic change. Do you recall that, sir? “A Yes, I believe I stated that I didn’t feel that she would sustain any permanent organic change. “Q When you said there would be no permanent organic change, did you also insinuate in your answer that there would, in fact, be other physical change, other than organic? “A I believe — I thought I had made it clear that I felt — or maybe I didn’t— that there would be no permanent psychological damage, as well. And then I went into my feelings about temporary psychological injurious effects. “Q Doctor, the emotional conflict and her underlying emotional problems are problems which you have stated cause her to act in an involuntary manner. Would you also say that the secondary gains are secondary involuntary gains, sir? “A I would say they are partly involuntary, partly voluntary. When one tries to assess how much of a person’s behavior is voluntary versus how much is involuntary, it becomes extremely difficult. Particularly in hysterical situations, and most specifically in situations of some very great stress to the individual. “This is like attempting to have the psychiatrist state whether the person is malingering, which implies voluntary versus hysterical, which implies involuntary. “Human behavior being as complex as it is, there is usually a little of each. But how much of each is very, very difficult to find out. “Q Well, you believe as to Miss Loughran, as far as she is concerned, as to her, that her present situation, her appearance in questioning before the grand jury, is a great stress in her case, do you not, sir? “A Yes, it is a great stress. “Q And because of this great stress upon her particular person, this particular person is brought into an hysterical state, which after being involved in the hysterical state it becomes difficult for her to subsequently voluntarily control herself; is that not true, sir? “A Yes. I think perhaps this might be best illustrated by an analogy. The analogy is as follows: If her condition, her involuntary condition would be, say, a small fire that is started involuntarily, a person may add fuel to the fire voluntarily. If the fire gets sufficiently large, it becomes beyond control of the person who perhaps started the fire in the first place. So how much fuel she is adding to her fire, I don’t know, but once she has added enough, or enough has been added, of course she can’t control herself. “Another way of looking at it is in a small child, when a small child cries, if you come in and stop — grant the child’s wishes, the child sometimes can’t stop crying after that, the child will continue to sob, because it becomes involuntary. “Q. One final question, Doctor. Also would you not then say that her condition, her hysterical state, would also cause her a problem to communicate the relevant materials, isn’t that correct, sir, that would go hand in hand, would it not? “A It might and it might not. It depends upon what the symptom is. If her hysterical symptoms take the form of being unable to talk, she would have, obviously, great difficulty. If her hysterical symptoms involve paralysis of her foot, it might have no effect upon her ability to communicate. “MR. BUSBY: Thank you very much, Doctor. I have nothing further. “THE COURT: All right. Redirect? “MR. MILLER: Yes, sir. “REDIRECT EXAMINATION “BY MR. MILLER: “Q Doctor, on cross examination you were asked about the description ‘erratic and unpredictable’; is that correct, sir? “A Yes. “Q You have applied, or your report indicates that there are certain other descriptions of Miss Loughran, which you believe to be so, as far as her personality is concerned, as expressed on page 2 of Exhibit 1, is that correct? “A Yes. “Q With respect to all of these terms which are used, were these terms as a result of the clinical psychological evaluation that was made ? “A These were the results of psychological testing. “Q And then embodied in your report, is that correct? “A Yes. “Q Now, I ask you this question, sir: With respect to all of these terms, including ‘unpredictable and erratic,’ would these personality characteristics necessarily render one unable to appreciate the consequences of an oath taken before a grand jury? “A No. None of these traits, together or singly, may have a deleterious effect upon that. In fact, even psychotic conditions haven’t precluded someone from testifying, nor has the fact of someone being, perhaps, a very young child, who may testify quite capably. “Q Very well, sir. Likewise, with respect to the capacity to testify, as to what one has either seen or heard in the past, would these characteristics which you set forth on page 2 of Exhibit 1 necessarily affect that ability? “A Not necessarily. “Q Now, Doctor, on cross examination you mentioned an analogy, that is, that a fire might be started and then the fire might be continued along and perhaps made more warm and more brilliant by one’s own doing; and you apply this, I take it, to an hysterical state, is that correct? “A That is correct. “Q And applying this situation to Miss Loughran, would it be a fair statement to say that once she was experiencing a mild discomfort and mild hysteria, and upset, if she began to think about something that she did not want to do, something that was unpleasant to her, would this be the type of feeding of the fire that you have spoken of on cross examination? “A Yes. “Q You have mentioned that Miss Loughran was in tears; is that correct? “A Yes, at one time. “Q During the beginning of the interview? “A Yes. “Q From your experience, even in am individual who is normal, if I might use that term, or not suffering from any serious mental or physical defect or' disease, it is not unusual, is it, for someone to have tears, to be c