May 19, 2003 10:05 a.m.
[ full transcript header at bottom ] (In open Court; case called)
THE DEPUTY CLERK: Please be seated.
THE COURT: How do we want to proceed, folks? I got all the stuff about burden of proof, et cetera, et cetera. I take it that, correct me if I'm wrong, the defense really has the burden of proof.
MR. ROSENBERG: Yes, your Honor. John Rosenberg for plaintiff. Mr. Fabian and I have discussed a number of these issues, and with the Court's indulgence and permission, we believe it is prudent to proceed in this fashion.
There are some issues about the tapes. The defendants are going to take a shot to authenticate them. Once that has taken place, we agree and concur that it is the defendant's burden in another copyright case that once the prima facie is established, it's up to the challenging party.
For purposes of a cogent presentation, and with the Court's permission, we still think it makes sense, but without shifting the burden for the plaintiffs, because it's our witnesses who sort of tells the story of what happened here, to start that way, but Mr. Fabian and the defendants have their right to cross examine. They can put on any defense witnesses as such, if that's okay. Again, with the understanding that the burden remains on the defendants.
MR. FABIAN: Larry Fabian for the defendants.
That's perfectly fine with us, your Honor.
THE COURT: I don't think I need any opening statements. My familiarity is painful and recent, so I think we can start.
MR. FABIAN: I can ask one question of the Court that MR. ROSENBERG and I had in connection with the exhibits that we're going to mark. With respect to the experts, if they are marked in evidence, shall they be evidence at the trial or is your Honor considering them as an in limine motion?
THE COURT: Forget about in limine. This is a trial.
You can offer it and I'll hear you and deny your request and then we'll go on from there. Who knows?
MR. ROSENBERG: We'll stipulate to that, your Honor.
THE COURT: I might not. You never can tell.
Incidentally, just a little housekeeping. How long, oh, Lord?
MR. ROSENBERG: The great blues song, your Honor.
We would think non jury we have cut it in half. I think we'll be done by the end of the week. Certainly Thursday. We don't predict later than Friday.
THE COURT: It better be Thursday because there is no Friday.
MR. ROSENBERG: That's kind of forboding. Do you know something I don't?
THE COURT: Yes, I do.
MR. FABIAN: There still may be at the end of the case some deposition transcripts. We were wondering, would your Honor, perhaps, take them and we would each mark our objections on the side?
MR. ROSENBERG: We don't need to read them into the record?
THE COURT: No, they will be exhibits and you'll indicate what the relevant portions are.
MR. ROSENBERG: In that case, I think Thursday, since there is no Friday, is a realistic prediction.
THE COURT: Very good.
Well, keep that in mind. It's a graduation. Sorry about that. But keep that in mind as we go along, so that if we have to employ measures to get through, we can do that.
MR. FABIAN: One other thing, we had the question of witnesses and I indicated to you we have one witness sitting here, and since this is part of the trial what would you like to do?
MR. ROSENBERG: During the tape authentication portion, I have no objection to any witnesses staying in.
That's okay.
MR. FABIAN: Neither do we.
MR. ROSENBERG: During the case in chief I would invoke the rule, I think it is 615, to sequester witnesses.
Let me just confer, if I might, with Mr. Fabian.
There is one witness who I believe is affiliated with some position with the defendant. His name is --
MR. FABIAN: Walter.
MR. ROSENBERG: And they requested that he be able to stay. And based on the representation that he has no knowledge of the events in question, we have no objection to him remaining. All other witnesses on both sides, except Ms. Whitson and when Mr. Wapnick arrives, the rule permits designation.
Thank you, your Honor.
THE COURT: Okay.
THE DEPUTY CLERK: Remain standing and raise your right hand.
ORLANDO GATTILLO, a witness called by the defendant, having been duly sworn, testified as follows:
THE DEPUTY CLERK: Please be seated.
DIRECT EXAMINATION BY MR. FABIAN:
Q. Mr. Gattillo, could you tell this Court where you have your business located?
A. 538 West 29th Street, New York City.
Q. What is the nature of the business that you are in, sir?
A. I run a forensic audio lab.
Q. And were you contacted by the defendants in this action, New Christian Church and Endeavor Academy in connection with doing certain forensic work?
A. Yes, sir.
Q. And can you briefly describe for the Court your background, your educational background and experience as it relates to the forensic work that you do?
MR. ROSENBERG: Your Honor, we don't contest Mr. Gattillo's credentials to testify. You'll hear from our expert, our expert trained Mr. Gattillo. So I can assume he did a good job, and we'll accept the witness's testimony for purpose of authenticating these tapes.
MR. FABIAN: If we could, your Honor, could we submit his curriculum vitae so it could be marked as Defendant's 1?
THE COURT: Let's do it A, if you don't mind.
(Defendant's Exhibit A received in evidence)
Q. Now, Mr. Gattillo, in connection with your work that you did for the defendants, did there come a time in October of
2002 when certain materials were delivered to you?
A. Yes, sir.
Q. And in connection --
THE COURT: Excuse me, Mr. Fabian, just tell me, just give me a short offer. What is all this?
MR. FABIAN: This relates to the four Mazza tapes, your Honor, in which your Honor had indicated your Honor wanted some testimony as to the --
THE COURT: I'm sorry, what tapes; which ones?
MR. FABIAN: In the hearing back in June, your Honor, we had given testimony concerning the Mazza tapes, Mr. Mazza.
THE COURT: Who is Mazza?
MR. FABIAN: He had recovered a reel to reel tape from ARE, and he actually had the physical reel to reel, and he testified concerning that. And your Honor indicated you wanted -- it wasn't coming in unless there was some expert testimony in terms of the tape and its integration and whether there were any breaks, stops, starts and so forth in it.
Mr. Gattillo --
THE COURT: This was a tape of -- these are various of the plaintiffs?
MR. FABIAN: Of Judith Skutch Whitson, in which she made various statements concerning handing out the materials.
THE COURT: And this was the one where the witness testified that he could not state that -- this is the question of the integrity of the tape?
MR. FABIAN: Yes, that's what we're getting to, your Honor.
THE COURT: Thanks.
Q. Getting back to my questioning, in or about October of
2002, did you receive certain materials from myself on behalf of the defendants?
A. Yes, I did.
Q. And do you recall what those materials were?
A. It was a five inch reel to reel audio tape.
Q. And did you receive anything else?
A. I believe I received a transcript.
Q. And did you as well receive four audio cassettes of those particular excerpts?
A. At a later date, yes.
Q. And could you please tell the Court what you did in connection with the reel to reel tape and the materials that were delivered to you?
A. The reel to reel tapes were examined, listened to under extreme listening, I would say. They are examined under a microscope for indicators of stops, starts, pauses and any other indicator of tampering.
Q. And in general, Mr. Gattillo, are there particular types of tests that can be made, that should be made to reel to reel tapes to determine if there are any what we'll call breaks, starts and so forth?
A. Yes, any tapes, reel to reel or standard cassettes or even microcassettes.
Q. Is there more than one test that can be done?
A. Yes.
Q. What are the test or tests that can be done?
A. The first would be critical listening. Listening first to the speaker repeatedly, I would emphasize, and then listening to the background itself for continuity.
Q. Did you do the critical listening test in connection with the Mazza, what we call the Mazza tape?
A. Yes, sir.
Q. And in connection with that critical listening, did you do it from the reel to reel or had you done something to the tape prior to that?
A. I would digitize the tape, basically recording it into a computer in a digital format so that sections could be played over and over or fast forward, rewind quickly. And it makes a truer copy rather than losing one generation by copying it to something else.
Q. And did you do any other types of testing besides critical listening?
A. Yes, once inside the computer, you can evaluate the audio As a wave form analysis, which is a spectro representation of the words spoken themselves.
Q. Is this a standard test that is done?
A. Yes.
Q. What kind of equipment did you have to do this?
A. A specialized computer program, a computer and a digitizing machine.
Q. Besides the digitizing and the critical listening and I believe you just said spectro analysis; is that correct?
A. Yes.
Q. Is there any other test?
A. Microscopic examination and what would be referred to as magnetic resolution.
Q. Can you describe what that is?
A. That's a procedure where the tape is exposed to a fluid containing metal particles. The fluid evaporates, the metal particles stick to the audio portions of the recording. Then you look at it under a microscope looking for a signature of the stop, start pause and/or splices or cuts.
Q. And did you do any other testing? I think you had mentioned some wave form analysis. Can you describe what that is?
A. That's examining again the computerized copy for indicators of where the recorder was started, stopped, paused; indicators of anomalies like tapping, pop clicks.
Q. Now, did you do this analysis in connection with the excerpts in issue that had been delivered to you?
A. Are we talking about the reel to reel or the --
Q. On the Mazza, the reel to reel or the copies that he made?
A. Yes.
Q. And how did you do that testing? How did you investigate the excerpts?
A. Again by isolating them, listening to them deliberately closely.
Q. Did you have the excerpts -- were they themselves subject to these various tests that you discussed?
A. Yes, sir.
Q. Now, by the way, when you looked at this reel to reel and the work that you did, do you know from approximately what period of time this tape was? Was it a modern tape from the
80s or from the 90s or 2000s?
A. It's reel to reel tapes that are seldom seen nowadays.
Q. When was it more common?
A. In the 80s. Certainly after Watergate, during.
Q. And in connection -- by the way, in connection with these particular tapes, the Mazza tapes, could you please state for THE COURT what your conclusion was after you did these various tests?
A. My conclusion was that the excerpts in particular, there was a flow of information uninterrupted with nothing that would indicate tampering.
Q. In connection with the entire tapes themselves, did you find any evidence of tampering?
A. No.
Q. Did you find any evidence of clicks, stops, starts and so forth?
A. Oh, certainly, yes.
Q. And can you state generally what were the causes of some of these stops and starts and so forth?
A. If I'm not mistaken, they was a deliberate start at the beginning of the lecture or conversation and deliberate stops At the end.
Q. Were there stops in between?
A. Not that I recall.
Q. And in connection with the Mazza tapes, did you prepare a report?
A. Yes, I did.
Q. And I'm going to ask --
MR. FABIAN: Your Honor, should we go through the procedure of marking for identification?
THE COURT: Yes, mark it so we know it's admitted.
MR. FABIAN: We can mark as Defendant's B for identification the signed report of Mr. Gattillo dated November
18, 2002, which is part of his report.
Your Honor, just so you'll know, his curriculum vitae is attached and also there is a letter from me indicating what I was delivering to him.
THE COURT: It's admitted.
(Defendant's Exhibit B received in evidence)
MR. FABIAN: I would ask if the witness could look at that document.
Q. Mr. Gattillo, tell me if, in fact, that's your signature at the end of the report?
A. Yes, it is.
Q. Can you please review that document and tell the Court whether that constitutes your entire report in connection with the Mazza tape?
A. Yes, it is.
MR. FABIAN: I would ask that that be marked as Defendant's B in evidence, your Honor.
THE COURT: It's in.
Q. Now, in connection with the report, Mr. Gattillo, and your previous testimony, you had talked about critical listening as one of the tests that was done.
Can you describe for the Court when you're talking About critical listening, what are you listening for? Is there one thing you're listening for or more than one?
A. There are many things you're listening for. You're listening on headphones following a transcript, looking for continuity. You're also listening for obvious clicks, noises that could be associated with tampering, and you're listening to backgrounds, background changes to show whether they are free flowing and continuous.
Q. In connection to your listening to the Mazza tape, did you find any discrepancies with respect to background or ambient noise which would indicate there was some tampering?
A. No.
Q. Did you find any discrepancies in terms of the flow of the statements made by the party doing the speaking to indicate there had been any tampering?
A. No.
Q. Now, Mr. Gattillo, subsequent to your listening to the Mazza tape, were there some other tapes that were delivered to you?
A. Yes, I received four standard size cassettes in May for examination.
MR. FABIAN: Now, your Honor, just as an offer of proof at this point, we're going to be talking about the four ARE tapes.
Your Honor, again, as I understood your Honor's order, we were going to present testimony concerning the integration of the tape and Mr. Gattillo's examination of it for any tampering.
Q. Now, Mr. Gattillo, in connection with the examination of the ARE tapes which were delivered to you in May, could you describe for the Court the nature of these tapes that were delivered to you?
A. The nature?
Q. Was it again a reel to reel tape or was it different, in a different format?
A. These were four standard size audio cassettes as opposed to open reel to reel.
MR. FABIAN: And I will represent to the Court that when it was delivered to Mr. Gattillo, in fact it was the copies, your Honor, that were made by the court reporter at the deposition from the copies that were in ARE's possession when we took the deposition?
MR. ROSENBERG: I can't stipulate to what a court reporter in Virginia Beach did. And Larry and I have a different recollection. I have no recollection of the court reporter making copies. We took a deposition of an ARE representative by telephone who was down in Virginia Beach. I have no recollection of the reporter making copies of audio cassettes, so I can't stipulate. That's not testimony.
THE COURT: Anyhow, whatever they were, you got them?
THE WITNESS: Yes, sir.
Q. And what type of analysis did you do of the ARE tapes, Mr. Gattillo?
A. I did limited analysis due to the fact that they were copies as opposed to originals.
Q. And what analysis did you do?
A. Again --
THE COURT: Excuse me, how do you know they were copies as opposed to originals?
MR. FABIAN: Your Honor, again, we may have a disagreement, but as to --
THE COURT: How do you know that they were copies and not originals?
THE WITNESS: There are tests that can be done to the tape to determine whether it is an original or a copy.
THE COURT: I see.
Q. And did you do that test?
A. Yes, I did.
Q. So you determined it was a copy?
A. Yes.
MR. FABIAN: I apologize, your Honor. I misunderstood what you were asking.
Q. In connection with this copy, I believe you said -- what test did you do?
A. Again, critical listening is the first thing, digitizing, putting it into the computer and doing wave form analysis and spectrum analysis.
Q. And is there any other type of analysis that can be done to copies of tapes, to the best of your knowledge?
A. Well, you can't -- you can do microscopic examinations, but they are not going to be valid because they are a copy. You're not going to see the heads where they actually hit the tape, where they would stop or pause.
Q. And that you did do in connection with the Mazza tape?
A. Yes.
Q. Now, in connection with these ARE tapes, did you find any breaks or stops or starts based upon your critical listening?
A. Yes, I did.
Q. And did you find any in connection with the excerpts themselves that are before this Court?
A. Within the excerpts themselves, no.
Q. Did you check on both sides of the excerpts?
A. Yes, sir.
Q. And about how far on each side did you check?
A. All sides, beginning to end, on all four tapes repeatedly.
Q. And did you find any form of tampering based upon this particular type of analysis?
A. In the excerpts, no.
Q. And how about on the tape itself, each tape itself?
A. Well, there are obvious anomalies that occurred, which I noted in my report.
Q. Could you describe --
A. There are deliberate stops, let's say, between the lecture And the question period when they took a break. There are situations where the tape in the copying process wound itself And played backwards, so that the recording played backwards when she got to that spot, which was also reflected on the opposite side as you would expect.
Q. And was the playing backward near the excerpts that you investigated?
A. No, this was toward the end of the tape.
Q. Okay.
And you testified in connection with the Mazza tapes that when you do this critical hearing analysis, that you check both for background and the flow of the material itself; is that correct?
A. Yes, sir.
Q. And did you do that in connection with the ARE tapes?
A. Yes, I did.
Q. What did you find with respect to the ARE tapes with respect to background?
A. It was continuous and uninterrupted.
Q. What would indicate to you in terms of background noise that there had been some tampering or playing with the tape?
A. Well, you would hear abrupt changes in the background. In An auditorium you have echo. Somebody could be whispering, somebody could be -- you would expect all of that to be continuous and nonstop. Similar to if you were listening to a radio in the background, you wouldn't expect it to jump from one section to another or from one song to another.
Q. And in connection with the ARE tapes, did you find any of this jumping or anything that would indicate that there had been tampering?
A. No, not in the excerpts.
Q. Did you find it in the tapes themselves?
A. Again, there are anomolies throughout all the tapes including speed changes, breaks, pops, clicks.
Q. And my question is to you, did any of these anomalies based upon your experience indicate to you that there had been some tampering or splicing of the tapes?
A. Not in the excerpts.
Q. I'm asking on the entire tapes themselves.
A. I'm sorry, repeat the question.
Q. Did you listen to the entire tapes?
A. Yes, I did.
Q. Did you analyze the entire tapes?
A. Yes.
Q. Each of the four ARE tapes?
A. Yes.
Q. And you indicated, I believe, that there were certain Anomalies thank you found?
A. Yes.
Q. And in examining each of the entire four ARE tapes, did any of these anomalies indicate to you that there had been any tampering with the tapes?
A. Not having the originals to examine, that would be hard to stipulate.
Q. But so I'm clear, were there any anomalies around the excerpts which are in issue?
A. No.
MR. FABIAN: Your Honor, I would ask to be marked into evidence as Defendant's C, the signed report of Mr. Gattillo in connection with the ARE tapes.
THE COURT: What's being marked?
MR. FABIAN: Mr. Gattillo's report in connection with the ARE tapes as Defendant's Exhibit C.
(Defendant's Exhibit C received in evidence)
Q. Finally, Mr. Gattillo, in connection with your examination of the ARE tapes, are you able to give an opinion as to whether the excerpted areas of the ARE tapes have been altered or tampered with?
A. My opinion is they have not been or do not appear to be Altered or tampered. The information is continuous congruous And uninterrupted.
Q. Is your opinion the same or different with respect to the Mazza tape?
A. The same.
MR. FABIAN: I have no further questions.
MR. ROSENBERG: May I cross examine, your Honor?
THE COURT: Yes.
CROSS EXAMINATION BY MR. ROSENBERG:
Q. Mr. Gattillo, I notice both in your reports that are B and C in this proceeding and in your testimony, you quite carefully, and I appreciate it, talked about excerpts; do you remember a number of times referring to excerpts?
A. Yes, sir.
Q. And the assignment that was given to you, and I'm not being critical of you, but the assignment was fundamentally to Analyze certain small excerpts on the tapes that were identified to you by the defendants; is that correct?
A. That's correct.
Q. They told you what excerpts to, I'll say look at, but really listen to and evaluate; is that correct?
A. Yes, I was also asked to examine all of the tapes and all sections of them.
Q. Let's start with the ones that are the subject of Exhibit C, which are called, and I may get into this with the Court later, the ARE tapes. Didn't something bear something that said Wagner College?
A. They didn't have labels on them. They had numbers.
Q. But your second report deals with the four audio cassettes that you received, correct?
A. Yes, sir.
Q. And which had been referred to here as the ARE tapes?
A. Yes, sir.
Q. Now, in Mr. Fabian's discussion, he sort of lumped them all together, he said the ARE tapes reflect this?
A. Yes.
Q. But there are actually four separate tapes?
A. Yes, sir.
Q. And you noted on your report, Exhibit C, some anomalies on each of the four tapes?
A. Correct.
Q. I would like to discuss that, but before I do, you were Quite clear that the audio cassettes that you received were copies?
A. Yes, sir.
Q. Now, is that an issue of any significance, an expert's Attempt to authenticate a tape?
A. Absolutely.
Q. It's actually one of the critical factors, you would agree with me?
A. Absolutely.
Q. Are you familiar with a periodical by Bruce E. Koenig, Engineering Research Facility?
A. I believe I have read that.
Q. You would agree that Mr. Koenig is a recognized expert in the field of authentication of audio recordings?
A. Yes, sir.
Q. And you believe that you have reviewed the report.
For ease of reference, why don't I ask that we mark the report. I think D would be my recollection of the next letter.
THE COURT: But it's yours.
MR. ROSENBERG: We mark them differently? Can we use numbers?
THE COURT: Yes, you have numbers.
MR. ROSENBERG: We'll mark it Exhibit 1, and you can have that, and there is a copy for the Court and a copy for MR. FABIAN.
THE COURT: Let me just ask you, let me ask counsel just so I get it straight, Mazza was the expert who testified, but what is the genesis or where did the reel to reel tapes come from? Did they also come from ARE?
MR. FABIAN: Mr. Mazza testified at the hearing, your Honor, that he had gotten a box from ARE.
THE COURT: They are ARE tapes. They are just in a test form.
MR. FABIAN: They were in the original reel to reel form?
THE COURT: Basically they are all the same, I mean, in terms of where they came from, it is just that they are in a different form?
MR. FABIAN: Correct. And Mr. Mazza testified, if I might for a moment, that, in fact, he had been given a number of tapes to work with by Mr. Todeschi. As to the four ARE tapes, they were kept in the archive of ARE.
MR. ROSENBERG: To be clear, not of the four that have been referred to as ARE tapes, which are the second batch, not the Mazza ARE tape.
THE COURT: The Mazza is the reel to reel?
MR. ROSENBERG: Yes, of the four ARE tapes, one of those is marked Wagner College, and Mr. Todeschi knew nothing of the recording of any of them and said that is not an ARE tape.
MR. FABIAN: He didn't say it wasn't an ARE tape, but said he didn't know how it got into the library.
MR. ROSENBERG: Recorded elsewhere. It was not recorded by ARE. There is no suggestion that it was recorded by ARE, each with different issues.
Shall I proceed?
THE COURT: Yes.
MR. ROSENBERG: I have put before the witness, the Court and Mr. Fabian Exhibit 1.
Q. Is this a copy of the article that I had earlier referred to? I don't know if it has been put before you yet.
Do you now have that in front of you, sir?
A. Yes.
Q. And that's the article that you said you believe you have read?
A. Yes, sir.
Q. And you concur that Mr. Koenig is a recognized expert?
A. Yes, I do.
Q. If you would be kind enough to refer to page 6 under the heading "Analysis Overview"; do you have that page?
A. Yes.
Q. I'm going to read the second paragraph to you from Mr. Koenig from the FBI, "The first overall conversation in many examinations is whether the recording in question is an original or a duplicate, since copies cannot be authenticated."
That's what Mr. Koenig wrote?
A. I agree.
Q. So you agree with Mr. Koenig's statement that copies cannot be authenticated?
A. Yes, sir.
Q. And if you'll turn to the next page, page 7 where he is talking about in the first full paragraph that begins with the words "once the examination and the evidence tape," et cetera; do you see where I am?
A. Yes, sir.
Q. About eight or nine lines down, Mr. Koenig says "The physical inspection identifies splices, tape damage, improper tape length, housing alterations and other visual defects."
Did I read that correctly?
A. I believe so, yes.
Q. That can only be done to an original, correct?
A. Yes, sir.
Q. Would you agree that Mr. Koenig's statement that only an original tape recording can be authenticated?
A. Yes, but I was not asked to authenticate the tapes.
Q. You predicted my next question.
Did the defendants ask you to authenticate the original tapes?
A. The original Mazza tape, yes.
Q. We'll get to that in a minute.
These four ARE tapes, were you asked to look at the originals?
A. No.
Q. Did you tell Mr. Fabian or the defendants that you can't Authenticate a copy?
A. Yes, I did.
Q. And what did they respond?
A. They advised me that the original copies were either unavailable or there was a time problem getting me down there or the tapes up here.
Q. And, again, I'm not being the least bit critical. Were any efforts made to get you the original tapes by having you go to ARE or having a tape sent to you?
A. I don't know.
Q. And do you agree then that you are not in a position, and I'm not being critical, to authenticate any of the four Audiotapes?
A. I was not asked to authenticate. I was asked to listen to, examine and give an opinion as to the flow and continuity of information and look for indicators of tampering.
Q. The four tapes that you were asked to look at were excerpts by defendants?
A. No, I was asked to cover the whole tapes but in particular the excerpts.
Q. But you were not asked to authenticate the originals?
A. No.
Q. And you can't authenticate a copy?
A. True.
MR. ROSENBERG: I have much more, but I think that Alone is enough, if the Court feels sufficient to rule.
No effort was made to get the originals.
MR. FABIAN: Your Honor, if I might, authentication is A legal term.
THE COURT: The basic problem here, even assuming that the excerpts are integral, and making that assumption, which for the reasons you have just indicated may be a little shakey, the basic problem we have, of course, is that we don't know that the entire proceeding, whatever that proceeding was. And we don't know how it was taped, by whom. That's our problem.
MR. FABIAN: That's true, your Honor, but that Analysis is not indicative of the fact that tapes should not be permitted in evidence. That would go to the weight of the evidence, your Honor. As your Honor has stated in your decisions, the chain of custody is not in dispute. You may not have accepted --
THE COURT: I think what I said was it's kind of spongy. Spongy is a technical legal term.
MR. ROSENBERG: From the Latin, I believe.
THE COURT: Basically what I said was, well, there are problems of the chain of custody. There is no chain of custody. There isn't any.
MR. FABIAN: These are, in fact, tapes, even though you don't accept them as the Ancient Doctrine. The Court is entitled to take into consideration that they are 20 years or so old, and there would have been no reason for anybody to tamper with them when delivered to the archive.
THE COURT: Maybe we can save everybody -- how many --
how long, oh, Lord, how long if we listen to these tapes? How long does it take?
MR. ROSENBERG: The whole tapes take hours and hours.
To respond to this, they could have looked at the originals.
THE COURT: I don't know whether they could or they couldn't.
MR. ROSENBERG: They have a duty to authenticate the tapes. This is the third time you have given them a chance.
Can I give an example that may clarify why this is problematic?
THE COURT: Sure.
Q. If you look at Exhibit C and turn to number four on your report, KT9A, that was one of the cassettes; is that correct?
Page 4 of Exhibit C, which is your second report --
A. I don't have that before me.
MR. ROSENBERG: Mr. Fabian, did you proffer it to the Court?
MR. FABIAN: I thought that I did. Maybe the judge has it. If not, I can give you another copy.
MR. ROSENBERG: Yes, just so the witness has it.
May I approach, your Honor?
THE COURT: Sure.
Q. If you turn, sir, to page 4, paragraph numbered four of that report.
A. Yes, sir.
Q. And this is under a section that you called "anomolies,"
correct?
A. Yes, sir.
Q. And this is a conclusion or observations?
A. Yes.
Q. With one of the four cassettes that you received?
A. Yes, sir.
Q. And you wrote the following: "Poor recording quality."
Did you write that?
A. Yes, I did.
Q. Let me ask you this: If you have an original tape and then A copy is made of that and a copy is made of the copy, in nine generations later you get a copy that's going to be in different quality than the original, correct?
A. Absolutely.
Q. And certain things that you might hear on the original will not be present on the ninth generation?
A. That's true.
Q. Certain anomalies that you would hear on the original or even a first generation won't be present in the fifth or eighth or ninth?
A. That's true.
Q. There is a dimmunution, if you will, of the recording?
A. Sure. You lose a generation on each copy.
Q. What generation were the copies that you received from the original?
A. As close as I could determine, they were second generation.
Q. Do you know that?
A. From spectral examination, yes, I could draw that conclusion.
Q. Could they have been third generation?
A. No.
Q. No chance of that?
A. No chance is -- nothing is perfect.
Q. But you would agree that even as a second generation there Are things that you won't be able to detect on it that you could detect on the original?
A. Absolutely.
Q. Even on the non-original tape, you wrote "poor recording Quality"; is that correct?
A. Yes.
Q. You wrote "low volume and distortion"; is that correct?
A. Yes.
Q. And then you wrote "005 break". 005 refers to the counter numbers where you can look on a tape recorder and see where you Are?
A. Yes, sir.
Q. You say there was a break in the tape at 005?
A. I mean a break in continuity.
Q. As early as 005?
A. Yes.
Q. Right at the beginning of the tape?
A. Yes.
Q. 0072 is somewhere a way in the tape there is a drop out.
What does that mean?
A. That is a situation that occurs when you either have dust on the heads, the tape is moved away a little bit and it sounds like it is fading in and out.
Q. You have a drop out at 607, 693; 1095 you have an alignment problem causing reverse play back of adjacent track. That is when the other side of the tape is playing over the moving part of the tape?
A. The upper portion moves past the guides.
Q. At the same time?
A. Yes.
Q. Other than the Beetles using it on Let It Be as an effect, that's very difficult to hear what's being said?
A. Absolutely.
Q. It's going in two directions?
A. You're actually listening to one side in the wrong direction.
Q. At that moment on the tape?
A. At that moment, and the same on the reverse as you would expect.
Q. As it flips the process around?
A. Exactly.
Q. On side B of this tape at 004 we have a stop and a start, correct?
A. Yes, sir.
Q. What was said when the tape recorder was stopped? What did you speaker say?
A. I don't think the speaker was talking at that time.
Q. Do you know if there were any words that weren't said?
A. I believe this is when the recorder was started and they stopped it and then started it. And a few minutes later the lecturer actually --
Q. Do you know that? Do you know that, sir?
A. I'm going from what I hear.
Q. When the tape recorders stop?
A. I can't no what happened during that stop, of course.
Q. Was it stopped for five seconds?
A. I don't know that.
Q. Was it stopped for five minutes?
A. I don't know that.
Q. Was it stopped for 30 minutes?
A. I don't know that.
Q. Was it stopped for an hour?
A. I don't know.
Q. What happened during the hour or 30 minutes or five minutes or one minute that it was stopped?
A. I can't determine that, sir.
Q. Then you have at 37 reverse play reflected from side A.
That's the same thing going in both directions?
A. Yes.
Q. Drop out in speed variations at 44; is that correct?
A. Yes.
Q. 78, drop out. 361, severe drop out during question and Answer session; is that correct?
A. Yes.
Q. There is a question and answer session on this, isn't there?
A. Yes.
Q. During a portion of it there is what you characterize as a severe drop out, correct?
A. Yes, I would call it like a pause as opposed to a full stop start.
Q. And do you know what happened during that pause as a literal matter?
A. I do not.
Q. Do you know what question might have been missed on the tape during that time?
A. I do not.
Q. Do you know what answer might have been missed on the tape during that time?
A. No.
Q. There is no way to determine?
A. No.
Q. You told the defendants that you needed the originals to properly authenticate the tapes; is that right?
A. Yes, I did.
Q. They did not give you the originals; is that right?
A. Yes.
Q. You were asked to listen maybe a 30 second snippet, correct?
A. In the excerpts, yes.
Q. It sounded like the words started in one place and stopped in another place?
A. Correct.
Q. You don't know anything else about it, do you, other than just that snippet?
A. I know there are sections that were uninterrupted by these Anomalies that I would find suspicion were intact.
Q. There are sections that you would find suspicious, that was your word?
A. Sure. Anomalies are suspicion. When you don't have the original, it's difficult to know what caused the anomalies.
Q. Who made the original tape recording?
A. I have no idea.
Q. What type of tape recording equipment was used?
A. I would assume a reel to reel.
Q. A Testscan, a Marrantz?
A. I would venture a guess.
Q. Do you know?
A. No.
Q. Do you know whether the operator of the tape recorder who made the original was competent to operate the recording device?
A. I do not know.
Q. You have already said the third characteristic that we're dealing with --
MR. ROSENBERG: Your Honor, this is from your opinion.
Q. -- is that the recording is authentic and correct. You have testified quite candidly that you can't authenticate a copy?
A. That's correct.
Q. The changes or deletions have not been made to the recording, you don't know as an imperial fact whether any changes were made from the original to the copy you received?
A. I do not.
Q. You don't know who made the copy, do you?
A. No, I don't.
Q. That the recording has been preserved in the manner that it has been presented to the Court -- well, in fact, what's being presented to the Court is a copy, not the original?
A. True.
Q. Do you have any firsthand knowledge in what manner the recordings were preserved in, the originals?
A. I do not.
MR. ROSENBERG: Your Honor, that's my examination on those four tapes. Should I move on now to the Mazza tapes?
THE COURT: Sure.
Q. Now, earlier, I believe last year, perhaps in October, you were asked to look at a reel to reel?
A. Yes, sir.
Q. Now, all reel to reels, that doesn't mean they are original, do they?
A. Until examined you can't determine that.
Q. Right, because I can take a reel to reel and if I have Another reel to reel recorder, I can copy the reel to reel on to another reel to reel?
A. Absolutely.
Q. And let me ask you, did you do tests to determine whether what's called the Mazza tape was an original?
A. Yes, I did.
Q. What is your conclusion?
A. My conclusion was that the tape was an original.
Q. Now, again, the assignment that you received, and I'm going to read from Exhibit B, is an expert opinion with respect to pertinent excerpts related to the issues in this case. That was your assignment, correct?
A. Yes, sir.
Q. I want to ask you about the tape as a whole.
Well, let me ask you, I noticed in your report, Exhibit B, that you were given, I believe, a Court transcript of Mr. Mazza's testimony. Did you read that?
A. Yes, I did.
Q. Did you use that at least for informational purposes to understand what you were looking at?
A. Yes.
Q. Did you read that transcript prior to testifying just to refresh your memory?
A. No, I haven't read it in a while.
MR. ROSENBERG: I'm going to read from the transcript.
Larry, do you have a copy, so you can follow along? I don't have an additional copy.
I'm reading now from page 31 of Mr. Mazza's transcript.
"Q. Did you run any tests to determine whether the tape recorder that recorded Exhibit A had been stopped and started And stopped and started during the recording process?
"A. it has been stopped and started from what I could tell of this tape.
He then talks about biased leakage, and I ask him at page 32 line 21:
"Q. Is it fair for me to assume that there are parts of the tape that are not coherent?
"A. there are parts where it is broken because you can hear the tape recorder stopping, and you can hear the tape recorder picking up again.
And he discussed the characteristics that allowed him to identify this. I said on page 33:
"Q. And you heard on Exhibit A that type of sound which indicates to you, as someone with many years of experience in this field, that the tape recorder at some point had been stopped and at some point started?
"A. That is correct.
"Q. And that was on a number of occasions?
"A. that was on several occasions on this tape.
I also asked Mr. Mazza -- bear with me one moment while I find the page. 28, line 10.
"Q. From your own personal knowledge, was that tape --
Q. And Mr. Mazza was talking about the same reel to reel that you looked at; is that right?
A. I believe so, yes.
"Q. Was that tape edited in any way prior to it being sent to you?
"A. I can't tell you that. It could have been edited for the -- parts could have been taken out of it or put into it.
Then he says:
"A. But from what I heard on the tape, it would be unlikely that it had been edited to change the content.
And I went on to say, I talked to him about parts, could have been spliced out and things could have been left off when it stopped and started, and he concurred that that was true.
So refreshing your recollection as to what Mr. Mazza said, I noticed on Exhibit B unlike Exhibit C, you don't have a section called anomolies, do you?
A. No, I do not.
Q. But on Exhibit C you do?
A. Yes, I do.
Q. There were anomolies on the so-called Mazza tapes?
A. Oh, absolutely.
Q. The tape was stopped and started in a number of places, correct?
A. Yes, sir, absolutely.
Q. I'm going to ask you a question so the record is clear. On the number of occasions on which the Mazza tape was stopped, what was said?
A. I don't know.
Q. Is there any way anyone can know?
A. No.
Q. Do you know what kind of tape recorder was used to make the original of what we call the Mazza tapes?
A. No.
Q. Do you know the identity of the operator of the recording device?
A. No, sir.
Q. Now, I asked Mr. Mazza whether the operator was competent.
He testified he doubted it. Would you concur with that?
A. I see errors that were performed. That wasn't very professional.
Q. We have discussed whether changes, additions or deletions have been made. There is no way, as I say, for you to testify what happened when the tape recorder was stopped and started, is there?
A. True.
Q. And, again, your report didn't mention any of these Anomalies, did it?
A. It did not.
MR. ROSENBERG: Your Honor, can I have one moment to consult my expert to see what I have forgotten something, because I always forget something?
(Pause)
Q. Did you, sir, do a magnetic development test on the Mazza tapes?
A. Yes, I did.
Q. Did you do it on the four ARE tapes?
A. No.
Q. Because there would be no purpose?
A. Yes.
MR. ROSENBERG: We do have an expert, but I would submit on this record these tapes have not met the standards.
MR. FABIAN: If I just might ask a couple of questions in response.
REDIRECT EXAMINATION BY MR. FABIAN:
Q. Mr. Gattillo, in connection with the Mazza tape where you did not -- did you examine the excerpts or did you examine the entire tapes in connection with all of the types of testing that you did?
A. In particular it was the excerpts which was what the request was.
Q. You indicated previously in your testimony that when examined the Mazza tapes, you did three or four or five different types of tests; is that correct?
A. Yes.
Q. Did you do those tests on the full tapes?
A. Yes.
Q. And in connection with the examination of the entire tapes in the Mazza situation, did you find any anomalies, which Although in your report indicated any tampering or altering of the tapes?
A. Of course start and stops are cause for concern.
Q. In connection with the Mazza tapes, I believe you indicated you did wave form analysis and spectrum analysis and so forth?
A. Yes.
Q. Would they be indicative of any cuts or splices in the reel to reel tape?
A. No.
Q. What would be a test to see if there had been any cuts or splices in the reel to reel?
A. The tests that I performed, which would be the magnetic resolution, the listening, the wave form analysis; all of it.
Q. On the basis of all of those tests which you did on the entire Mazza tapes, did you find any evidence of tampering or deletions or splicing or anything to that effect?
A. No.
Q. Now, in connection with the ARE tapes themselves and in particular Mr. Rosenberg just examined you in connection with the Wagner tape, would it be your opinion that if there is something that is unintelligible on the tape, that it definitely means it is untrustworthy?
A. No.
Q. When you say that you didn't authenticate the ARE tapes, am I to understand your testimony to mean that you didn't do any tests whatsoever on the ARE tapes?
A. No, I did all the tapes on the magnetic resolution.
Q. When you say that you didn't authenticate it, that in your parlance means you weren't able to look at the original tape?
A. Yes, sir.
MR. FABIAN: I have no further questions.
MR. ROSENBERG: I think I have made plaintiff's point.
THE COURT: You are excused; thanks.
(Witness excused)
MR. ROSENBERG: I would move to exclude the tapes. I don't think the Court needs to hear more testimony.
THE COURT: Let me ask you what the offer is. I mean, obviously, there has been testimony about the excerpts. How many of these excerpts are there and what do they purport to be?
MR. FABIAN: Your Honor, in connection with the experts themselves, they purport, for example, in connection --
we'll start with the Mazza tape. As we indicated, for example, on tape 1 of the Mazza tape, which appears on page 31 and 33 of the transcript, Ms. Skutch Whitson is testifying --
MR. ROSENBERG: She is not testifying.
MR. FABIAN: Excuse me, you're right. She is speaking And she indicates in part that she gave a copy to her friend Gerry Jampolsky in California. She indicates she brought it to California. And then she goes on to say, so I brought it out to California. Now they said I could bring it to California And show it to my friends, but not New York City where they live, referring to Helen and Bill. Now California is 3,000 miles away from sophisticated --
THE COURT: I get it. What I'm trying to get is these Are statements relative to the California distribution?
MR. FABIAN: Yes, it is, and she says in two weeks --
THE COURT: When I say -- that's all of these?
MR. FABIAN: Yes, none of them relate to North Carolina. They relate to California distribution.
THE COURT: Okay. And roughly speaking, if you had those transcripts all together, what are we talking about, 10 pages, 20 pages?
MR. FABIAN: I put those on pages 8 through 10 of my memo. So those particular excerpts are five minutes of reading, maybe 10 minutes of listening.
MR. ROSENBERG: There is a whole bunch on the tapes.
If you get down this road, then minutes and tens of minutes.
And we are here on an authentication issue. The rules of evidence are quite clear. There has to be authentication.
THE COURT: If we were trying this before a jury that would be one thing. These tapes aren't worth very much because they are not complete. We don't know where they came from.
They are -- but if we are talking about five pages of excerpts, I'll review it.
The difficulty is we don't know that even on this testimony we can't be sure that the tapes are integral, and we don't know that they are the complete transcript of the event.
We don't know any of the instructions with respect to the manner in which the taping was done, et cetera, et cetera, et cetera.
However, they might be useful for cross examination, And so bottom line, as they say in non-jury cases, I will take it for what it is worth.
MR. ROSENBERG: I'm an old man from Massachusetts. We would have to say "note my exception". I know we don't have to say that any more.
THE COURT: I don't think they are worth very much and I'm not going to be very impressed by them, but I will permit them. I'll review them.
MR. ROSENBERG: To save time, can they be reviewed in transcript form so we don't have to go through the process of cueing them up?
THE COURT: However you want to identify them. I think they should be identified as to whether they are because of this report, in the event that I should end up holding for MR. FABIAN's clients. In that case, we ought to be clear as to exactly what infirmities of these documents are. So they should be introduced as to tape and so on.
Now, I don't mean to cut you off, if you want to make A complete record and have your expert testify.
MR. ROSENBERG: I think I better do that.
THE COURT: That might be prudent.
MR. ROSENBERG: Thank you. I understand.
THE DEPUTY CLERK: Stand and raise your right hand.
THOMAS J. OWEN, called as a witness by the Plaintiff having been duly sworn, testified as follows:
MR. FABIAN: Your Honor, could I just, perhaps, have a minute? I have not seen any curriculum vitae.
Can I have a minute to look at his curriculum vitae?
(Pause)
MR. FABIAN: Again, your Honor, having looked at this, we certainly don't need Mr. Rosenberg to qualify the witness.
We'll accept his qualifications as an expert.
MR. ROSENBERG: For record purposes, I move to introduce Mr. Owen, his resume. I'll give two copies to the clerk so one can be marked and one can be given to the witness And one to the Court. This would be, I guess, 2.
THE COURT: Yes.
(Plaintiff's Exhibit 2 received in evidence)
MR. ROSENBERG: May I proceed?
THE COURT: Yes, sir.
DIRECT EXAMINATION BY MR. ROSENBERG:
Q. Mr. Owen, just briefly, you know Mr. Gattillo, correct?
A. That's correct, I trained him.
Q. You trained him, right?
A. Yes.
Q. Now, did you have a chance to review the expert report, so-called, that Mr. Gattillo provided, Exhibits now B and C?
A. Yes, I did.
Q. Was there something about the assignment that caused you Any pause?
A. Well, the assignment was narrowly focused. Normally when we get an authenticity assignment, it's generally understood it's for the entire tape, not just for excerpt or excised portions of the tape.
According to the training and the schooling and even the testing that I gave, and Mr. Gattillo passed with glowing reviews, the problem is with this particular assignment, it wasn't really an authenticity examination.
Q. What if Mr. Fabian or anybody asked you to review excerpts of a tape?
A. Well, if he asked me to do it from an authenticity standpoint, I would not take the case. I would insist that we do the entire side of the tape, at least the entire side. And Also I would request in writing that he provide both the recorder and the original tape.
Q. Well, let's move quickly to that question.
You heard about the four audio cassettes that are reflected in Exhibit C. Those were copies admittedly, correct?
A. That's correct.
Q. Is than an appropriate way to review tapes for purposes of this sort of hearing that we're having today?
A. I don't review copies of tapes for authenticity. I wouldn't take the case.
Q. You wouldn't take the case?
A. No.
Q. Why is that?
A. Because it has no value in a court of law, and people end up having to pay twice.
Q. Meaning they pay for the copies? You tell them there is no value, get me the originals?
A. Right.
Q. You might as well go right to the originals?
A. Maybe the used car salesman might use the bait and switch, but people who are legitimate in the authenticity business should not be doing that.
Q. You have been qualified in federal and state court many times?A. About 80 times in 28 states.
Q. Your phrase reviewing the copies was of no value, more specifically, why is that? What is it you can't tell from looking at the copies?
A. You can't tell -- for example, in this instance we're talking about excised portions or excerpts and so forth. But there was an issue of the stops and starts on the tapes. If there are stops and starts, as you pointed out before, you don't know what happened at the time that the recorder was stopped and restarted again. Time can go by. The continuity of the conversation, the lecture or whatever it was that was taking place at the time is not whole. It is incomplete.
As to the matter of its wholeness or incompleteness, that goes to the law, specifically US v. McGeiver. We have said that in 1958 this was set down as the sentiment of what is Authenticity and what constitutes an authentic recording.
MR. FABIAN: Objection to what the expert testifies the law is. He is not an expert on the law.
THE COURT: Overruled.
Q. You are an expert on tapes and introduction of tapes, correct?
A. Yes.
Q. Do you believe, based on your expert opinion, more than 80 Qualifications as an expert in 28 states, that the four cassettes have been properly shown to be authentic recordings for purposes of a court proceeding?
A. I don't think they meet the criteria for authenticity.
Q. By the way, is it possible that the originals of those tapes were tampered with?
A. Absolutely.
Q. Were edited?
A. Absolutely.
Q. Were monkeyed around with, if you will?
A. That's right.
Q. And you can't necessarily tell every such tampering, deletion, omission by looking at a copy, can you?
A. We can discover most of them, but some of them are going to get -- like what was referenced as drop outs on a multi-generational copy, that is usually a pause from a previous copy. When there is pause the first time on the original, it leaves a signature on the tape and we can discover it as a pause. After the tape has been copied a couple of times, that signature doesn't appear and we get the drop out in many cases the further you go down the line in the copy process.
Q. You don't know what happened during those drop outs?
A. No.
Q. Just to confirm, based on your professional opinion, these tapes have not been professionally authenticated, have they?
A. That's correct.
Q. In terms of the original Mazza reel to reel, Mr. Gattillo testified that it had been repeatedly stopped and started. Did you hear that testimony?
A. Yes, I did.
Q. What concerns does that give rise to?
A. Again, it goes back to the law. It doesn't mean the criteria for authenticity.
MR. FABIAN: Objection. Move to strike.
THE COURT: Overruled.
Q. Have you listened to thousands and thousands of tapes?
A. Yes.
Q. What concerns arrive when you know an original tape has been stopped and started?
A. The biggest concern is you don't know what was said during the time it was stopped.
Q. There is no way to correct that, is there?
A. No.
MR. ROSENBERG: Thank you. I have nothing further.
MR. FABIAN: Just a few questions, your Honor.
CROSS EXAMINATION BY MR. FABIAN:
Q. Mr. Owen, the test that Mr. Gattillo did on the Mazza tapes, are those the correct tests?
A. Yes, he described the correct tests.
Q. Any other tests that could have been done?
A. My only criticism was in the magnetic development that I didn't see any other magnetic development. That would be the true test as to whether not the test is a true copy or original.
Q. Did you do any testing on the reel to reel Mazza tapes?
A. I didn't see the Mazza tapes. I did not hear the Mazza tape.
Q. You did not see the tape itself?
A. No.
Q. You didn't examine the Mazza tape?
A. No, I did not.
Q. Did you examine the ARE tapes at all?
A. No.
Q. So you're testifying solely on the basis of your knowledge in general of tapes, but you did not listen to the ARE tapes?
A. I'm testifying on the content on what constitutes Authenticity.
Q. If you had listened to the ARE tapes and they had been one continuous tape, even if they were a second generation, could they be authenticated in your view?
A. No.
Q. By the way, you understand this is a civil case and not a criminal case?
A. That's correct.
Q. Do you have a different definition for criminal and civil?
A. Not when it comes to authenticity, no.
Q. You know these were not tapes by police investigators or state troopers for the purposes of presenting evidence at a criminal trial?
A. That's correct.
Q. These are tapes that were made by someone approximately 20 years ago with no idea that they were going to be presented in evidence.
MR. ROSENBERG: Objection. There is no observation About any of the circumstances.
Q. Is critical listening one of the tests that can be done in connection with the Mazza tape, for example?
A. Any tape, yes, that's correct.
Q. And the reel to reel is an original tape; is that correct?
A. Not necessarily.
Q. You don't know if in this particular case whether the Mazza tape is an original tape, you didn't examine it; is that correct?
A. That's correct.
Q. You heard the witness testify that he examined the Mazza tape and it wasn't an original; is that correct?
A. Yes, I did.
Q. And in connection with your testimony here today, you understand that, or I believe you heard Mr. Gattillo testify that he examined the entire Mazza tape. You did hear him say that, didn't you?
A. Yes, I did.
Q. When you testified in response to Mr. Rosenberg about the excerpts, that was because you believed that letter that was sent to him and he said please look at the excerpts; is that correct?
A. With regard to what?
Q. With respect to the Mazza tapes.
A. I don't know what the letter said.
Q. So you don't know, you didn't personally know when you came here today whether Mr. Gattillo examined just the experts or the entire collection of the Mazza tapes?
A. That's correct.
Q. And today you heard Mr. Gattillo testify that he examined the entire Mazza tapes?
A. Yes, that's correct.
Q. And you heard him testify that he examined the entire ARE tapes?
A. I'm not so sure he said he examined them in its entirety.
Q. You didn't hear that in court?
MR. FABIAN: The record will speak for itself.
I have no further questions.
MR. ROSENBERG: We have two experts both of whom concur that the four ARE tapes cannot be authenticated because they are copies. I have to say as to those tapes there is nothing on the record. You gave them three chances over the last year --
THE COURT: Thanks. You're excused.
(Witness excused)
THE COURT: I think all of the tapes should be excused. I will permit certain excerpts to be used in the course of the testimony.
Okay, we'll take a few moments.
(Recess)
THE COURT: Yes.
MR. ROSENBERG: Your Honor, we're prepared as plaintiffs to call our first witness, if the Court is still inclined. I'll dispense with my five-hour opening statement, your Honor, as you requested.
THE DEPUTY CLERK: Please remain standing and raise your right hand.
JUDITH SKUTCH WHITSON, called as a witness by the Plaintiff having been duly sworn, testified as follows:
DIRECT EXAMINATION BY MR. ROSENBERG:
Q. Ms. Skutch Whitson, where do you reside?
A. I reside in California, a suburb of San Francisco called Chiberon.
Q. Is that where are you from originally?
A. No, I'm from New York City originally.
Q. How long have you been out on the west coast living out there?
A. Since 1978.
Q. Would you briefly tell us your educational background starting with your graduation from college?
A. After college I attended Columbia University. It was the School of Journalism and Philosophy.
Q. Where did you graduate from college?
A. Wood College; Frederick, Maryland.
Q. And the delicate questions; in what year?
A. That's not delicate. 1952.
Q. How old are you?
A. I'm 72 years old.
Q. You made me feel younger. I'm feeling old. I was born in
1952, so I feel a little better. What educational pursuits did you study after your graduation from college?
A. I was studying English literature and philosophy and some classes in creative writing.
Q. And moving into the 1970s, early to mid 1970s, were you employed at the time?
A. In the 1970s, I was employed at New York University.
Q. And --
A. In the School of Continuing Education. I was on the faculty of New York University.
Q. And what was your position; what did you do?
A. I was a lecturer, and I had a very large class, people who were interested in the exploration of consciousness, which then was called parapsychology.
Q. Tell us a little bit about, because that word gets thrown About, what is parapsychology?
A. Well, since it was accepted to the AAAS, which is the Scientific Organization of America, I can say it is a science.
And it's a science of the study of consciousness and all the parameters of consciousness that we know of to date, particularly extraordinary human functioning.
Q. And you were teaching this at NYU in the 1970s?
A. Yes, I was.
Q. And did you have other professional experiences, background in this consciousness research area other than at NYU?
A. Well, I studied courses in the late 60s and very early into '70 in the New School for Social Research, and they were also courses in philosophy and consciousness research.
Q. Were you a member of any boards or institutes or did you have any professional endeavors other than the NYU faculty?
A. I had a small not for profit organization which raised funds for study in universities and hospitals in the field of parapsychology. I also was a member, a founding member, of the board of directors in the institute of noetic sciences, which is now based in California.
Q. Now, you mentioned you had a small foundation. What was the name of it?
A. It was the Foundation for Parasensory Investigation.
Q. And whether under that name or not, does that foundation still exist today?
A. Not under that name. The name was changed in 1976, I believe, early in 1976 to the Foundation for Inner Peace.
Q. And then you mentioned that you had some role, I think, if my notes are right, about noetic sciences?
A. Yes.
Q. And what was that endeavor?
A. Well, the institute in noetic sciences was founded by one of our astronauts who was a member of Apollo 14, and he was the sixth man to walk on the moon. And while there he had a deep And expanding mystical experience, and decided when he came back as a scientist to devote his life to the research of this kind of experience.
Q. What is his name?
A. Dr. Edgar Mitchell.
Q. And he founded Noetic Science Institute?
A. Yes, he did.
Q. What role in the 1970s did you have in that Institute?
A. Well, I was founding board member and I was vice-chairman of the board.
Q. And you have talked about teaching at NYU, your own studies, the noetic sciences, are you familiar with the Stanford Research Institute?
A. Yes.
Q. What is that?
A. The Stanford Research Institute used to be part of Stanford University, but separated off before I knew them, probably in the 60s. And they were dedicated to research in all fields.
By the time I knew them, they were a contract organization so their research was really under contract. And our Institute of Noetic Sciences contracted with them to do some studies for our institute.
Q. So you had some inner reaction -- we'll explore this later -- with the Stanford Research Institute as well?
A. Yes, I did.
Q. And I know the Judge will appreciate this. We're going to find kind of move things along. We're going to go to a specific date in 1975.
Do you know, although they are no longer living, but did you know Dr. Helen Schucman and Dr. William Thetford?
A. Yes, I did.
Q. When did you meet them; do you recall.
A. Red letter day, I call it. May 29, 1975.
Q. And can you describe to the Court, please, what the circumstances were that led up to your meeting Dr. Schucman and Dr. Thetford?
A. Yes, I will.
Sometime in the middle of 1975, I was involved in sponsoring and lecturing at a conference at the New York Academy of Medicine. And while I was speaking there, there was An attendee I did not know about named Dr. William Thetford.
When I gave my introductory talk it seemed that how I put certain phrases about healing being of the mind interested him very much. He felt it was either very relevant to almost Quotes of the document that he subsequently presented me with.
MR. FABIAN: Objection, your Honor, the witness testifying to the thoughts and how Dr. Thetford testified. He is dead.
MR. ROSENBERG: Your Honor, it's background information.
THE COURT: Overruled.
Q. The point is this is how you met up to meet Dr. Thetford?
A. The point is it was kind of magical to me.
Q. What happened that led you to Dr. Thetford?
A. A friend of mine who was a fellow professor, he was at Newark College of Engineering, Dr. Douglas Dean, was talking to Dr. Thetford after I was on the podium. And Dr. Thetford invited him and me as friends and colleagues to visit him and his associate, Dr. Helen Schucman, at Columbia University School of Physicians and Surgeons.
MR. FABIAN: I don't mean to keep objecting, but if we're going to take it as background, I'll understand, but it is hearsay.
THE COURT: Yes, of course.
MR. ROSENBERG: It's not hearsay. It's not introduced for the truth. It's what Dr. Thetford told her to go meet him.
Q. Did you meet Dr. Thetford?
A. Yes, I did.
Q. Did he arrange for you and -- is it Dr. Dean?
A. Yes.
Q. To meet with Dr. Thetford and Dr. Helen Schucman?
A. Yes.
Q. Where did the meeting take place?
A. In the faculty lounge, which is also a teacher's dining room.
Q. What was the date of the meeting?
A. May 29, 1975.
Q. Who was present at the meeting?
A. At the luncheon was present Dr. Douglas Dean, myself, Dr. Helen Schucman and Dr. William Thetford.
Q. And would you describe briefly what happened at the meeting in the teacher's lunch room?
A. Yes, sir.
Q. Tell the Court what happened, what was discussed at this meeting?
A. Well, we were just having general conversation. Truthfully I had no idea why I was there. And I was hoping we could sponsor some research at Columbia School of Physicians and Surgeons about fields that we were interested in.
Q. Did you discuss that with Dr. Schucman?
A. She wasn't very interested in it. I brought it up. She wasn't very interested.
Q. From what you she told you, what you learned, what was her position at the time?
A. She was an associate of Dr. Thetford's in the Department of Psychology at the School of Physicians and Surgeons.
Q. What was Dr. Thetford's position from what you learned from him?
A. He was head of the department.
Q. What else transpired from this meeting in the lunchroom?
A. It was a bit confusing for me, and I felt a little out of sorts when suddenly not understanding why I said it, it just came out of my mouth to her, so you're hearing an inner voice, Are you.
Q. You said this to whom?
A. I said this to Dr. Schucman.
Q. You're hearing an inner voice; what did Dr. Schucman respond?
A. She was shocked and she held on to her colleague's arm and he started to laugh and said, we're going back to our office now.
Q. What happened next?
A. We went back to their office --
Q. Let me break this down. It's a court proceeding. I don't want to get more objections.
Who was present at the office?
A. Present at the office before I entered it was Dr. Douglas Dean, Dr. William.
THE COURT: I'm sorry, Dr. Douglas --
THE WITNESS: Dean.
Q. D-E-A-N?
A. That's correct.
Q. Who else was at the office?
A. William Thetford, Helen Schucman. And outside the door they pulled the shades down, as it was a glass window, and we went in. And then they locked the door, and then they introduced Dr. Kenneth Wapnick who was in the office.
Q. So Dr. Wapnick was there as well?
A. In the office, yes.
Q. A lot of doctors; Dean, Thetford, Schucman, Wapnick and non doctor, Judith Skutch Whitson?
A. Then Judith Skutch.
Q. That's right at that time you were married to Robert Skutch?
A. That's correct.
Q. Your name was Judy Skutch?
A. Correct.
Q. Tell us what happened at this meeting, who said what to whom and how you responded?
A. To the best of my recollection, Bill and Helen didn't --
may I call them Bill and Helen?
Q. I think that's okay, if you will confirm Bill refers to?
A. Dr. William Thetford.
Q. Helen?
A. Dr. Helen Schucman.
Q. Ken, if that comes up?
A. Dr. Kenneth Wapnick.
Q. Tell us what happened.
A. Bill and Helen said they have some story to tell and Helen was nervous about the story being told, started to launch in interchangeably they would inject things in each other's story.
Q. They being?
A. Helen and Bill. And they told me the story about how they had been working together for quite a few years, and that it was under different circumstances because academia at best is not easy and that publish or perish I think came from academia.
And that the whole group they were working with was always frought with battles and discontent and disease, and their own personal relationship was very jarring since they too did not get along very well.
One day, as an impassioned plea that they try something different, Bill Thetford put out his hand to Helen And said there has got to be another way, what we're doing isn't working, the relationships are very bad, it's causing Anxiety to all of us.
Q. This is what he and Helen told you at this meeting?
A. This is what they told me.
Q. What else did they say?
A. And he said there must be a better way of living in the world.
Q. Now, at this point he is citing to you his story?
A. She is telling me his story and she is adding in and then he would speak and then she would add something interject.
Q. And what happened next?
A. She told me, she followed it, she said, it really surprised me because instead of being combative or critical of this impassioned statement, which was very unlike him, that she put out his hand to reach his, and she said I don't know what a better way it is that you're talking about, but whatever it is I'll help you find it.
Q. And did from what they told you at this meeting on May 29,
1975, did the better way manifest itself?
A. Well, they told me many more details but eventually they got to the end of the story, and I knew by this point that she had been, she called it the receiver or the scribe of a very unusual manuscript, which was the antithesis of everything she believed as a scientist. She was very embarrassed by it. She was apprehensive about letting me see it, but Bill had convinced her that this material needed to be shown to me.
Q. Briefly what did Dr. Schucman tell you about the process by which this manuscript had been created?
A. She told me it was very surprising in the sense that she felt she literally heard an inner voice. And that that particular voice would speak as if she said inner dictation was more the way she described it. And then one night after many other kinds of let's call them paranormal experiences, she got up and couldn't sleep, and she felt that that inner dictation said to her please take notes, this is A Course in Miracles.
Q. That's what she heard, she was reciting what she heard in her head?
A. She felt -- she was very distressed by this because she treated people who heard things. And she called up Dr. Thetford who was at his home, and he said look, we have been having so much going on with this interest recently, why don't you just do what it says.
Q. Meaning?
A. Take down the notes.
Q. From what Dr. Schucman told you from this meeting, did she take down the notes?
A. Yes.
Q. In what form?
A. In a shorthand notebook, her own form of shorthand which was some words and some little symbols that she knew how to decipher. She had once taken Gregg or Pitman, I don't remember which.
Q. Did Dr. Schucman or Dr. Thetford tell you to process what happened in these notepads that Dr. Schucman was writing down in what became the manuscript?
A. They both told me --
MR. FABIAN: I'm sorry, are we still on the same conversation?
MR. ROSENBERG: Yes.
MR. FABIAN: I couldn't hear you.
MR. ROSENBERG: I'm sorry, this is very distracting, Your Honor. Can I take one minute and try to move this? I keep feeling like I'm going to trip on it.
THE COURT: Yes.
(Pause)
Q. Did Dr. Schucman and Dr. Thetford tell you the process by which Dr. Schucman taking these notes down became the manuscript?
A. They told me that she would take down from her inner dictation what it said. She called it the voice. And the next morning she would come in to the office where they would lock the door and pull down the shade, just as they had when I Arrived.
Q. I want to talk to you about that. Did they tell you why that date they pulled down the shades and locked the door?
A. They said they wanted complete privacy.
Q. Did they tell you as they recite the story why they pulled the shades down every day and locked the door when they came into their office?
A. As part of the story, yes, later on.
Q. What did they tell you at this meeting?
A. Yes, but it was very clear from the conversation which, unfortunately, I can't reconstruct, that she was terribly upset, very anxious and embarrassed by all of this.
Q. By this voice?
A. By the story that was being told to me. She was not happy with her scientific image being compromised.
Q. She was a professor at Columbia?
A. Yes, she was.
Q. What did she and Mr. Thetford tell you happened with the writing and the manuscript process?
A. She would dictate it and she would type it up. They had Quite a manuscript going. They didn't know what it would be but they kept on going.
Q. Did they tell you how long a process it was that they wrote it down and typed it up?
A. Over seven years.
Q. What happened next at this meeting in their office on May
29th?
A. Well, after they finished their story, which by the way didn't surprise me too much because I had been studying things like that for many years, Dr. Thetford said to Dr. Schucman well I think we better show it to her now, which, of course, I had been eager to see, meaning the manuscript, The Course of Miracles. And he went to his filing cabinet and took out a key And opened it up and pulled out seven thesis binders, a pile, And he put one of them on my lap and the others next to me.
MR. ROSENBERG: Hold for one second.
With the Court's indulgence, I'm going to propose a procedure for this. So the record is clear, I have on our counsel table, and the witness will identify, these are the seven thesis binders that have the manuscript.
It is not my intention to burden the court with all seven notebooks. What I would do is we made an excerpt of About 25 pages from one of the volumes because there may be issues of different formating, but to give the Court 1500 pages, we didn't think it was necessary.
MR. FABIAN: I'm not sure we need to authenticate these documents, but I would ask the Court though if you could have at least deemed marked the entire transcript because it seems to be very relevant. I understand they don't want to have the Court hold on to it, but we can have it as representative of it. But the record will reflect that all seven binders being 1500 binders.
Q. By my count we may have eight or nine, are you positive it was seven?
A. I'm positive.
MR. FABIAN: There are seven.
Q. How many binders were there?
A. There were seven they gave me.
MR. ROSENBERG: I'm going to approach the witness, if I might.
Q. I'm going to show you one of the binders. I haven't picked it in any particular order and ask you if you can identify what that is?
A. Yes, I can. This is one of the copies of the manuscript, the original manuscript.
Q. Is this actually one of the originals?
A. Yes, it is.
Q. With all respect, it smells musty. Where has it been stored?
A. I'm afraid it does. It has traveled many places.
Q. I'm now placing a different one of these black thesis binders in front of you, and ask you if you would open it and tell us what it is?
A. This is the first of the set of thesis binders that holds A Course in Miracles, the document in manuscript form.
Q. Is this one of the number of notebooks that was shown to you by Dr. Thetford and Dr. Schucman that day?
A. Thesis binders, yes.
Q. These black binders that are piled up here.
A. Yes.
THE COURT: Let's mark these. I take it is going to be Plaintiff's 3-1 through 3-7.
MR. ROSENBERG: What we were hoping is since these are the originals --
THE COURT: You're going to keep all of your exhibits.
MR. ROSENBERG: We're going to mark these 3 through however many they are. I'm going to mark this Exhibit 4.
THE COURT: These are typical excerpts, I take it?
MR. ROSENBERG: I'll have the witness identify.
Q. This is Exhibit 4, Ms. Skutch Whitson, and I would like you to identify for the Court, this is comparing it to the Exhibit
3-1 notebook that you have in front of you.
Is that the first 25 pages?
A. Well, yes.
Q. And it is on eight and a half by 11 inch paper, correct?
A. It seems to be, yes.
Q. And this was the form in which you received it that day, correct?
A. I received it in this form that day.
MR. ROSENBERG: Witness pointing to the thesis binder
3-1.
Q. Would you concur there is no copyright notice affixed to either Exhibit 3.1 or 4?
A. There is not.
Q. And that was true on the day that you received the number of thesis binders in May, correct?
A. That's correct.
Q. And each of them were in these heavy, hard black covers that were shown, it's quite a heavy pile of manuscripts; is that correct?
A. Yes.
Q. What did you do on May 29th when you were handed -- who handed it to you?
A. Dr. Thetford handed it to me.
Q. What did you do when you received it?
A. The first thing I did was put this volume on my lap because I wanted to see what they were talking about. I opened it up And saw a huge table of contents just for the volume. And they Asked me to read the introduction, which I did. And I just sat there very moved.
Q. What's the first two sentences from the first volume here?
A. This is the introduction.
Q. Yes.
A. "This is a Course in Miracles, it is a required course."
Q. The next line?
A. "Only the time you take it is voluntary."
Q. Please go on?
A. "Free will does not mean that you can establish the curriculum. It means only that you can elect what you want to take at a given time. The course does not aim at teaching the meaning of love, for that is beyond what can be taught. It does aim, however, at removing the blocks to the awareness of loves' presence, which is your natural inheritance. The opposite of love is fear. What it is all encompassing can have no opposite.
This course can, therefore, be summed up very simply in this way. Nothing real can be threatened; nothing unreal exists. Herein, lies the piece of God."
Q. Did you read that that day?
A. Yes, I did.
Q. And what was your reaction?
A. Something like this.
Q. Can you described that in --
A. I was very moved. I could hardly speak. It seemed to speak to me in a way that I recognized. That's all I can say.
Q. What did you say to Dr. Thetford, Dr. Shucman, Dr. Dean or Dr. Wapnick, the assemblers in the office.
A. Dr. Dean didn't say much at all through the meeting.
Dr. Wapnick was quite silent in the background. Dr. Schucman And Dr. Thetford took the lead in the story telling.
Q. Were you given at that meeting a copy of the manuscript?
A. Yes, they told me I could take the whole set home and they gave it to me in a shopping bag.
Q. All of these numerous thesis binders?
A. That's right.
Q. Were you given any directive by either Dr. Schucman or Dr. Thetford about what you could or couldn't do with it?
MR. FABIAN: Objection, your Honor. This is hearsay that goes directly to the issue of --
THE COURT: I understand it is hearsay. Overruled.
MR. ROSENBERG: We're not introducing it for the purpose necessarily of the truth. It's what instruction was given which is always outside of the hearsay rule because it shows people's state of mind and what they are instructing others.
Q. Tell us who, if it was Dr. Thetford or Schucman, that said what you could do with the course?
A. It was obviously at that point for me alone --
Q. My question is what did they say to you?
A. Dr. Thetford said I could take it home overnight and look At it. And Dr. Schucman said that that was okay, but I was not to give it to anybody, and that they would speak with me the next day.
Q. Were you married at the time?
A. Yes, I was.
Q. To whom?
A. To Robert Skutch.
Q. Did your ability or not to show it to Robert Skutch, your husband come up at this meeting?
A. No, it didn't.
Q. Did you ask whether you could show it to your husband?
A. I don't believe I did.
Q. Now, the instructions were you could take it for the night, you weren't to give it to anyone else, and then you would talk to them tomorrow?
A. That's right.
Q. What did you do when the meeting ended?
A. Well, I took a taxi home. They were up on 165th Street in the Black Building at the time, and I got a taxi and I was very excited. And I was so excited that I asked the cab to stop and wait for me a few moments on Broadway, and I called up my friend, Dr. Gerald Jampolsky in California.
Q. Dr. Gerald Jampolsky, another doctor. What type of doctor was he in 1975?
A. A psychiatrist.
Q. Is he a trained certified psychiatrist?
A. Oh, yes.
Q. Do you know what institution he attended?
A. Yes, he went to Stanford.
Q. Did you have a collegial dealings with Dr. Jampolsky prior to this date?
A. Yes, he had a very deep interest in this field. I had met him at a conference on parapsychology. He asked whether my daughter could be a subject in some of his work, and whether he could work with some of the people in California that we worked with like Maimonides Hospital in New York City.
Q. What was your purpose of calling Dr. Jampolsky on this cab ride? You actually asked the cab driver to pull over to the side of the road. What was the purpose of the phone call?
A. Well, it was dual purpose really. Number one, I was so excited I couldn't contain my enthusiasm; and number two, he was the best person I knew to give me an assessment, number one, on the story I just heard, and number two on some of the material. And I actually read him a portion of the teacher's manual on the telephone.
Q. How much did you read him?
A. Maybe a page or two.
Q. You didn't show it to him?
A. He was in California.
Q. He didn't have a copy at this point?
A. No.
Q. What did you say to Dr. Jampolsky during this phone call, And what did he say to you?
A. Well, from what I remember, I said to him that this was extremely exciting to me, and I felt that I had been given something that was going to be for the rest of my life. And from what I remember, he noted on the telephone number, one, he had a patient waiting, and, number two, that I'm enthusiastic About a lot of things.
Q. He was in some ways teasing you, well, you're always enthusiastic?
A. Yes, and he said he would really like to see it to examine it and how soon could I get to California.
Q. Did you have authorization at that time, May 29th, to show that manuscript to Dr. Jampolsky?
A. To show it to him, no, I did not.
Q. Was there anything else of substance that you can recall being discussed?
A. No, I cannot.
Q. What did you do next?
A. I went to my apartment in New York City with --
Q. You went to your apartment?
A. With the seven thesis binders in a shopping bag, and I started to read them.
Q. Was anyone else home at the apartment?
A. At that moment, no.
Q. What happened next that evening in regards to this manuscript you had been given?
A. Well, my husband came home from work, and I think my daughter probably came home from her music lesson and I made dinner.
Q. How old was your daughter?
A. She was 16.
Q. And did you discuss this with your husband or your daughter?
A. I told my husband that I had received this manuscript and he saw the thesis binders I was very excited by it, and he looked at it and he was not interested.
Q. Did he read any portion or anything more than looking at the cover?
A. Like that.
MR. ROSENBERG: Witness, your Honor, opened the manuscript, shook his head and closed the manuscript.
Q. That's what your husband did?
A. Yes.
Q. Other than the little glance that you described, did he read the manuscript?
A. No.
Q. What did you do next that evening in respect to the course?
A. I read, I read, and I read for a good bit of the night. I stayed up very, very late. And I can't say I understood what I read, but it reinforced the reading to me of the impact of the document, and that this was something that I had to go through.
Q. And you testified earlier that when you left Dr. Schucman And Dr. Thetford that they said you could have it for one night And you were to meet with them again the following day?
A. Yes.
Q. Did that happen?
A. Yes.
Q. Where did you meet?
A. To the best of my recollection in our apartment on Central Park West and 81st Street.
Q. Who was present at this meeting?
A. Dr. Kenneth Wapnick, Dr. Helen Schucman and Dr. William Thetford.
Q. Did you have an understanding at this time from what they told you of what Dr. Wapnick's role was in this group?
A. I don't think at that time I really did understand. He was A colleague and, obviously, very deeply involved in this but he didn't say much.
Q. Later you learned of his role and involvement?
A. Yes.
Q. You understand that Dr. Wapnick will appear in this Court later in the proceeding?
A. I certainly do.
Q. Tell us what happened at the meeting; what happened and who said what and what your response was?
A. It was a fairly enthusiastic on my part discussion telling them how the bit that I read was so moving to me, and I was in Awe of how she, Helen, could possibly receive this material and how she could write it down and type it up after all of those years. That that type of focus and commitment was quite startling to me, and that I had read a great many of this type of what they called perhaps revelation writings in my career.
And that this was the most profound and the most succinct and the most organized that I had ever come across.
Q. Did you have any discussions about what, if anything, you might be doing as part of this group in regards to the manuscript?
A. Well, I did ask.
Q. What did you ask and of whom?
A. Well, I asked them, I actually asked them why me.
Q. Did any of them respond?
A. They both did.
Q. Bill and Helen?
A. Yes.
Q. What did they tell you?
A. Bill told me a story of how over the years Helen was really very disturbed by her role in this, she fought it very hard.
She actually tried to lose her shorthand notebooks, and a few very funny incidents that are not so funny. And that she really was deeply, deeply protective of her reputation and also protective of her role in scribing this document. I was surprised because they seemed to receive me. It was almost as if Bill Thetford had said later that day at that meeting that the family had come together.
Q. He said that to you?
A. Yes, he called us a family.
Q. Were you plan planning at that point any trip out to California? We're now at May 30th.
A. Well, I hadn't actually decided when to go, but Dr.
Jampolsky was quite adamant that I come as soon as possible, And I was also going to see Dr. Eleanor Criswell.
Q. Another doctor?
A. Yes, she was going to be my advisor in my doctoral degree.
Q. You were taking a doctoral program in California?
A. Yes.
Q. What institution?
A. This was the Humanistic Psychology Institute, which is now called Saybrook.
Q. Did you discuss with Dr. Thetford and Dr. Schucman that you were going to be going to California at some point?
A. Yes, I did.
Q. Did you mention Dr. Jampolsky's expressed interest in seeing a copy of the manuscript?
A. I told them both about the conversation that I had on the phone the night before or the day before when I left their office. And Helen asked him questions about is he a real doctor.
Q. What questions, to the best of your memory, did he ask About Dr. Jampolsky; did she ask if he was a real doctor?
A. Yes, to her a Ph.D. was one thing and an M.D. was something else, the hierarchy, I don't know. She wanted to know about his background, what work we had done together, just what he was doing with his life and why he was so interested.
Q. What did you tell Dr. Schucman?
A. I told her a little of his background, that he was extremely interested in this particular field, and that I felt that he didn't have any prior spiritual training or spiritual interest, but he may have caught my bug, the enthusiastic bug.
And that when I went to California, I would like to take the document with me to show it to him.
Q. He was a Stanford educated M.D. psychiatrist, correct?
A. Yes, also University of California also.
Q. And you made that clear to Dr. Schucman?
A. Oh, yes.
Q. Did you value Dr. Jampolsky's views professionally in your ongoing discourse with him?
A. Very much.
Q. What did Dr. Schucman or Dr. Thetford say in your response to show Dr. Jampolsky the manuscript?
A. There was some discussion about it. Dr. Schucman finally Agreed with Dr. Thetford that 3,000 miles away was far enough.
She really didn't want this to compromise her reputation. They Asked me not to use their real names. We decided upon Dr. B And Dr. H.
Q. I guess that would be Dr. Bill and Dr. Helen?
A. Well, I usually used to say Dr. B and Dr. H, but as events transpired, other things --
Q. They told you they did not want their names associated with it, correct?
A. That's correct.
Q. They did authorize you to show it to Dr. Jampolsky?
A. Oh, yes.
Q. Were any restrictions, observations made about what could be done with it with Dr. Jampolsky?
A. The document was to remain in my possession and he could look at it.
Q. What was your purpose and intent with their permission in showing it to your acquaintance, professional acquaintance, friend, colleague Dr. Jampolsky? What was your intended purpose in showing it to Dr. Jampolsky?
A. He was a trained professional in the field. I guess some people could say hearing an inner voice is crazy, and he was very interested in that sort of thing. I wanted his opinion About the value of the manuscript. And I also wanted to see whether or not we could get something from it together as a working team.
Q. Did you obtain authorization from Dr. Schucman or Dr. Thetford at this meeting, May 30, 1975 to show it to Anybody else? "It" bean the manuscript.
A. I believe I told them at that meeting or it could have been the day after or the day after that, that I had a very good friend in California who was also a professional associate, Dr. James Bolen, who was the publisher of a magazine in the field that we were interested in. And with their permission, I might like to show it to them.
Q. Is it Dr. Bolen?
A. No, it is not.
Q. James Bolen. What was his position at the time in 1975?
A. He was a publisher and an editor of a magazine that was well distributed.
Q. What was the name of the magazine?
A. At that time it was called Psychic Magazine.
Q. And what was the nature, if you will; what type of magazine was it?
A. He reported on research in the field. It was a popular magazine, so it was in lay people's terms. He did excellent interviews with people who were known to be working in the field, people who were subjects in the field. He would view Articles from medical journals or scientific journals in lay language. And just impart information in a way that was dignified.
Q. And you keep saying the field. He published a magazine in the field. What field?
A. I call it consciousness research, because that's what it is called today. In those days it was psychic or parapsychology or paranormal.
Q. And you expressed to Drs. Schucman and Thetford some interest at this meeting or in the next few days in showing it to a publisher of a magazine in this field?
A. Yes.
Q. What was their response?
A. They were a little hesitant until I told them something About it. And I'm not sure if it was that day or the next day because I met with them many days before I went to California or subsequently where the question came up again what my role was, why was I there. It didn't seem like an accident, and Bill said the family, so I asked more about that. And he said that they were very aware during the scribing of the document, more towards the end, but certainly when it was over, that this was not to be for them alone. That this was too important and helpful a document for just their own personal use. And he said we always knew that some day we would probably have to publish it or have it published. We didn't know how to go About that, so Helen who was used to communicating with this internal voice asked the question, is this just for us? And she felt her answer, so she said, was very clear, she would write it down. No, it is not just for them. Is it also for the public? Yes, it was to be for the public. And how would this happen? And she said that that inner voice told her someone would come and take it along its way.
Q. You said a couple of things. You said there was some talk that it wasn't just for them. Did they tell you it was to be freely disseminated?
A. Oh, no. They didn't want anyone to see it. Well, Bill Thetford wanted me to see it.
Q. But at the same time, you're saying they had some sense that at some point they felt that it had some need to be published; is that right?
A. Yes.
Q. Did Dr. Schucman at any of these meeting in late May or early June give you any authorization to show it to anyone, the manuscript to anyone other than Mr. Bolen and Mr. Jampolsky?
A. At that point, no.
Q. Did she give you any instructions at all about disseminating the manuscript?
A. Oh, yes.
Q. What did she say?
A. She said, she would rather I didn't take it, but Bill was Adamant, and I should be very, very careful. And that I shouldn't mention her name or Bill's name. And I should honor their privacy. And that was all I could remember.
Q. But honoring their privacy, did that mean you could show it to anyone you wanted as long as you didn't mention their name?
A. No.
MR. FABIAN: Objection, this is just conclusory testimony.
Q. What did Dr. Schucman state to you on that topic? It's part my fault. It's not a conversation. It's question and Answer. So I'll be more precise.
What did Dr. Schucman tell you about disseminating the manuscript?
A. She gave me --
MR. FABIAN: If I could just, so the record is clear, this goes exactly again to the heart of the issue in this litigation. It's hearsay, and I would, again, object as I have in the past.
MR. ROSENBERG: It's not hearsay, your Honor.
THE COURT: Overruled.
Q. What did Dr. Schucman tell you about the dissemination About the manuscript? We're now in late May, early June of
1975.
A. She told me I was allowed to show it to Dr. Gerald Jampolsky and I was allowed to show it to James Bolen. I was not allowed to show it to anyone else.
Q. Were you ever given authorization, and I'm talking about the manuscript, this thesis bound manuscript, were you ever given authority to make any widespread dissemination of the manuscript?
A. Not at all.
Q. Were you given contrary instructions?
A. I certainly was.
Q. How often?
A. I think after the beginning they recognized that I was following them because we spent so much time together.
Q. The question was how often?
A. I couldn't tell you that sir. Many times.
Q. Any equivocation about the instruction?
A. Not at all.
Q. Again, Dr. Wapnick was present during some of these conversations?
A. Almost all of them.
Q. And he will becoming in as far as you know?
A. Yes, he will.
Q. Did you go to California following the May 30, 1975 meeting?
A. Yes, I did.
Q. About when?
A. Sometime probably before the middle of June.
Q. So sometime roughly in the first two weeks of June; would that be a fair characterization?
A. Yes, not later.
Q. Did you bring the manuscript with you?
A. Yes, I did, in a shopping bag on the plane.
Q. So these hard bound heavy thesis binders, which I can barely pick up, you had in a shopping bag?
A. Yes, I did.
Q. And carried them out to California on a plane?
A. Yes, I did.
Q. How many other copies of the manuscript did you have at this time when were you making this plane ride?
A. None.
Q. That was the only one you had at that time; is that correct?
A. Yes, that's correct.
Q. Not covering your whole trip to California that doesn't pertain to the manuscript, I want to focus on the manuscript you're talking about Dr. Jampolsky. I want to ask you, did you meet with him during the first half of June?
A. Yes, I was staying at his home.
Q. Did you show him the manuscript?
A. Yes, I did.
Q. Dr. Jampolsky had his deposition taken in this case, is that your understanding?
A. I believe he did.
MR. ROSENBERG: And we'll be proffering that later to THE COURT, your Honor.
Q. Tell us what happened when you get to California with the manuscript and Dr. Jampolsky?
A. He was very anxious to see it. And he asked me to read him A little bit of it aloud. He didn't have too easy a time studying or reading because he was dyslexic, and so I started reading it aloud to him.
Q. What did he say?
A. He said he thought it was the most important thing that ever happened to him in his life.
Q. Did you tell him any part of the story about what Helen and Bill told you about what the course came to be?
A. I certainly did.
Q. Did you tell him anything about what could be done in terms of distributing the course at this time?
A. Oh, yes.
Q. What did you tell him?
A. I told him that these two people were not anxious for Anybody to know about it, and I had to get special permission since he had asked me as soon as I told him about it. And I got that special permission.
Q. What happened in regards to the course between you and Dr.
Jampolsky during this trip?
A. Well, during this trip I read it out loud. I read more to him. He read some himself. He said this is going to be something I'm going to be working on for the rest of my life.
And then he said he would like to speak to these people.
Q. What did you say in response?
A. Well, I called them. And I said I have Dr. Jampolsky here who would like to make your acquaintance and like to speak to you, is that all right? And they decided it was all right.
Q. So there is a telephone call with Dr. Jampolsky and Dr. Schucman and Thetford?
A. That's correct.
Q. To your knowledge, was he given any authority to disseminate the course in its manuscript form?
A. From my knowledge, he was not.
Q. At this time you only had one copy with you, the one in the black thesis binders; is that correct?
A. That's correct.
Q. You have mentioned in your testimony that you had also sought permission to show the manuscript to a James Bolen, a magazine publisher and editor, correct?
A. Yes, that's correct.
Q. Did you see Mr. Bolen during your trip to California in early June of 1975?
A. Yes, I did.
Q. And is it your understanding that Mr. Bolen is going to be coming in to testify during these proceedings?
A. Yes, he will.
Q. And where did you meet with Mr. Bolen?
A. I met with him at his office in San Francisco on Beach Street where he had his publishing office.
Q. Did he have a partner or colleague who was sort of his co-publisher or co-editor?
A. Yes.
Q. Who was that?
A. Mr. David Hammond.
Q. Was Mr. Hammond, to your recollection, present at the office of the magazine that day?
A. He was in and out of the office, yes. I saw him there.
Q. Did you meet with Mr. Bolen?
A. Yes, I did.
Q. Did you have the manuscript with you?
A. Yes, I did.
Q. Which at this point is the only copy that you have?
A. Yes.
Q. What happened at this meeting with yourself and Mr. Bolen?
A. Well, Mr. Bolen -- I told him the background of the story without mentioning the names of Dr. Schucman and Dr. Thetford.
And he said, let me see it. And I showed him a portion. I didn't take everything out. I showed him a portion and he started to read it and he was reading. He, obviously, wanted to read more, but he started to laugh in a way that seemed to me to be slightly inappropriate.
Q. Did you say something to Mr. Bolen?
A. Yes, I did.
Q. In substance, what did you say?
A. I asked him if he thought it was very funny. He said, I'm so close to tears that I'm laughing. He said this is very thrilling to me. He said he had seen many different kinds of material, and that this was so powerful to him.
Q. Were any arrangements made for Mr. Bolen to get a copy of the course at the meeting?
A. Well, he wanted a copy. And I knew, of course, that Dr.
Jampolsky wanted a copy. And I called up Dr. Schucman and Thetford. There was a three-hour time difference, and it was their morning and they were at the University. And I asked them if it was all right for me to leave a copy with Dr.
Jampolsky and Mr. James Bolen. And Helen made the remark that I remember that well, if he publishes something called Psychic Magazine, I'm not very happy about that. She did not want the material connected to something that was loosely called Psychic. She felt that was not its genre.
Q. What did you say to her?
A. I said to her I trust him, he has given me excellent Advice, he is a publisher, and he knows more people in the field than I do, and I would like his opinion, and he won't be Able to read it unless I leave him a copy. Bill was on the phone and he felt it was all right and she agreed.
Q. Did you specifically mention in this conversation that Dr.
Jampolsky also wanted a copy?
A. I believe that this happened a day or two before that, but I can't exactly recollect.
Q. But at some point you mentioned to Helen and Bill that Dr.
Jampolsky wanted a copy?
A. Oh, yes, he told them on the telephone he did.
Q. What was that response to the request that you give a copy to Mr. Bolen, a magazine publisher in this field?
A. It was all right as long as the caveat as it being kept under wraps, that it not be published in his magazine, and that he just study it for purposes of giving me some opinion as a publisher.
Q. And how about Dr. Jampolsky, what was Helen and Bill's response to his request to see the manuscript?
A. Well, since I had spoken to him direct for quite a while on the telephone, and I think they were impressed with his sincerity --
Q. That's your opinion. What was said?
A. I did not hear the conversation with Dr. Jampolsky and Drs.
Schucman and Thetford. I just know the result of it was that I was allowed to leave a copy.
Q. So we're now back in June at the office of Mr. James Bolen, the office of Psychic Magazine. Did you discuss with Mr. Bolen copying the manuscript?
A. He told me right away he wanted to copy it, which is why I called them. So, yes, I came back and told them that it was All right, and that he could have a copy. And I do not remember whether he suggested or I told him that I also would need a copy for Dr. Jampolsky because I was not going to leave mine there.
Q. Now, did you say anything to Mr. Bolen about what he could or couldn't do with the manuscript you were going to leave and the copy he was going to make?
A. Well, I certainly told him that he was to keep it very much under wraps. I had told him that Helen and Bill kept it in a locked filing cabinet. And I told him that this was for his eyes to read and for him to give me an opinion.
Q. Did he have any response to that instruction, that observation?
A. From what I remember, it was totally in accord with the way he practices profession.
Q. Was it your understanding that he receive as part of his role as magazine editor and publisher different manuscripts?
A. Yes.
Q. Let me ask you this, did he respond to your discussion that it has to be kept under wraps? Did he say he agreed, disagreed or did he respond?
A. He agreed.
Q. What happened that day with the manuscript?
A. Well, I left it with him.
Q. And did you retrieve it?
A. Oh, yes.
Q. How long after?
A. I don't remember exactly. I think it was the next day or the day after.
Q. And you came back to -- where did the retrieval take place?
A. At his office.
Q. How many copies did Mr. Bolen make?
A. I believe he ran off three.
Q. So he had your manuscript now plus three?
A. That's right.
Q. To your knowledge from this meeting you're in his office, what happened with the three copies?
A. Well, he gave me one for Dr. Jampolsky.
Q. Did he give you your own back?
A. Certainly he gave me my own back, and I believe he retained two for himself.
Q. And if you remember, did you reiterate at this meeting your instruction that it not be diseminated?
A. I don't remember that.
Q. Either way you don't remember that?
A. No.
Q. We're now in California in early to mid-June. Now, you had two now, your own and a copy, correct?
A. Well, I had given the copy when I got back to where I was staying to Dr. Jampolsky.
Q. That was my next question.
So Jim Bolen has two?
A. That's right.
Q. You have two as you leave Jim Bolen's office?
A. That's right.
Q. That's a lot to carry, correct?
A. I had help. I had a nice friendly taxi driver.
Q. You go back to Dr. Jampolsky's, correct?
A. Yes.
Q. And what do you do with the two copies that you have your own and the additional copy?
A. Mine I put where I kept my things, and the other one I gave to Dr. Jampolsky, and I believe it was gray boxes that you get from the copy house to put them in. So we had a stack of them.
I don't remember how many.
Q. So it is eight and a half by 11, correct?
A. Yes, sir.
Q. Like the excerpt, Exhibit 4?
A. That's right.
Q. But 1500 give or take pages?
A. That's right.
Q. And you gave that to Dr. Jampolsky?
A. That's right.
Q. And you previously communicated to him the restrictions on distributing it?
A. Yes, I did.
Q. To your knowledge, how often did you see Dr. Jampolsky during June, July, August of 1975?
A. I saw him that week, and then another time that was more towards the end of June or beginning of July, and then went back to New York. And then I saw him for about six weeks, staying at his place, from the 23rd of July until almost the end of August.
Q. We'll get to those as we go through this.
My question is: To your knowledge, from your own observation from what Dr. Jampolsky told you, did he ever distribute copies of his copies of the course to the public?
A. From my knowledge, from what he told me, he never did.
Q. How about Jim Bolen, do you know if he made any kind of distribution outside of his magazine?
A. As far as I know, Jim Bolen never made any distribution.
Although he did have an article about it subsequently, two or three articles.
Q. And we'll talk about that.
There was this fellow David Hammond, he worked with Mr. Bolen?
A. Yes.
Q. Other than Mr. Hammond and Mr. Bolen, do you know of any facts that would suggest, evidence, from your own observation, your own experience, that Mr. Bolen's copy was disseminated?
A. No, not at all.
Q. Now, my memory was that when you were going to California, you were going to see Dr. Jampolsky. You have talked about that, correct?
A. Correct.
Q. Mr. Bolen, correct?
A. Correct.
Q. And my notes say Eleanor Criswell something with doctoral thesis?
A. Yes.
Q. Did you see Dr. Criswell during this trip in June of 1975?
A. Yes, I saw her briefly in the library at the office of the American Humanistic Institute.
Q. Now, you're aware that Dr. Criswell has been deposed in this case?
A. Yes.
Q. And her deposition will be proffered to the Court; is that your