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41 35jopenf Gattillo - direct 1 tapes? 2 A. Yes, I did. 3 Q. Did you do it on the four ARE tapes? 4 A. No. 5 Q. Because there would be no purpose? 6 A. Yes. 7 MR. ROSENBERG: We do have an expert, but I would 8 submit on this record these tapes have not met the standards. 9 MR. FABIAN: If I just might ask a couple of questions 10 in response. 11 REDIRECT EXAMINATION 12 BY MR. FABIAN: 13 Q. Mr. Gattillo, in connection with the Mazza tape where you 14 did not -- did you examine the excerpts or did you examine the 15 entire tapes in connection with all of the types of testing 16 that you did? 17 A. In particular it was the excerpts which was what the 18 request was. 19 Q. You indicated previously in your testimony that when 20 examined the Mazza tapes, you did three or four or five 21 different types of tests; is that correct? 22 A. Yes. 23 Q. Did you do those tests on the full tapes? 24 A. Yes. 25 Q. And in connection with the examination of the entire tapes SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
42 35jopenf Gattillo - redirect 1 in the Mazza situation, did you find any anomalies, which 2 although in your report indicated any tampering or altering of 3 the tapes? 4 A. Of course start and stops are cause for concern. 5 Q. In connection with the Mazza tapes, I believe you indicated 6 you did wave form analysis and spectrum analysis and so forth? 7 A. Yes. 8 Q. Would they be indicative of any cuts or splices in the reel 9 to reel tape? 10 A. No. 11 Q. What would be a test to see if there had been any cuts or 12 splices in the reel to reel? 13 A. The tests that I performed, which would be the magnetic 14 resolution, the listening, the wave form analysis; all of it. 15 Q. On the basis of all of those tests which you did on the 16 entire Mazza tapes, did you find any evidence of tampering or 17 deletions or splicing or anything to that effect? 18 A. No. 19 Q. Now, in connection with the ARE tapes themselves and in 20 particular Mr. Rosenberg just examined you in connection with 21 the Wagner tape, would it be your opinion that if there is 22 something that is unintelligible on the tape, that it 23 definitely means it is untrustworthy? 24 A. No. 25 Q. When you say that you didn't authenticate the ARE tapes, am SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
43 35jopenf Gattillo - redirect 1 I to understand your testimony to mean that you didn't do any 2 tests whatsoever on the ARE tapes? 3 A. No, I did all the tapes on the magnetic resolution. 4 Q. When you say that you didn't authenticate it, that in your 5 parlance means you weren't able to look at the original tape? 6 A. Yes, sir. 7 MR. FABIAN: I have no further questions. 8 MR. ROSENBERG: I think I have made plaintiff's point. 9 THE COURT: You are excused; thanks. 10 (Witness excused) 11 MR. ROSENBERG: I would move to exclude the tapes. I 12 don't think the Court needs to hear more testimony. 13 THE COURT: Let me ask you what the offer is. I mean, 14 obviously, there has been testimony about the excerpts. How 15 many of these excerpts are there and what do they purport to 16 be? 17 MR. FABIAN: Your Honor, in connection with the 18 experts themselves, they purport, for example, in connection -- 19 we'll start with the Mazza tape. As we indicated, for example, 20 on tape 1 of the Mazza tape, which appears on page 31 and 33 of 21 the transcript, Ms. Skutch Whitson is testifying -- 22 MR. ROSENBERG: She is not testifying. 23 MR. FABIAN: Excuse me, you're right. She is speaking 24 and she indicates in part that she gave a copy to her friend 25 Gerry Jampolsky in California. She indicates she brought it to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
44 35jopenf Gattillo - redirect 1 California. And then she goes on to say, so I brought it out 2 to California. Now they said I could bring it to California 3 and show it to my friends, but not New York City where they 4 live, referring to Helen and Bill. Now California is 3,000 5 miles away from sophisticated -- 6 THE COURT: I get it. What I'm trying to get is these 7 are statements relative to the California distribution? 8 MR. FABIAN: Yes, it is, and she says in two weeks -- 9 THE COURT: When I say -- that's all of these? 10 MR. FABIAN: Yes, none of them relate to North 11 Carolina. They relate to California distribution. 12 THE COURT: Okay. And roughly speaking, if you had 13 those transcripts all together, what are we talking about, 10 14 pages, 20 pages? 15 MR. FABIAN: I put those on pages 8 through 10 of my 16 memo. So those particular excerpts are five minutes of 17 reading, maybe 10 minutes of listening. 18 MR. ROSENBERG: There is a whole bunch on the tapes. 19 If you get down this road, then minutes and tens of minutes. 20 And we are here on an authentication issue. The rules of 21 evidence are quite clear. There has to be authentication. 22 THE COURT: If we were trying this before a jury that 23 would be one thing. These tapes aren't worth very much because 24 they are not complete. We don't know where they came from. 25 They are -- but if we are talking about five pages of excerpts, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
45 35jopenf Gattillo - redirect 1 I'll review it. 2 The difficulty is we don't know that even on this 3 testimony we can't be sure that the tapes are integral, and we 4 don't know that they are the complete transcript of the event. 5 We don't know any of the instructions with respect to the 6 manner in which the taping was done, et cetera, et cetera, et 7 cetera. 8 However, they might be useful for cross examination, 9 and so bottom line, as they say in non-jury cases, I will take 10 it for what it is worth. 11 MR. ROSENBERG: I'm an old man from Massachusetts. We 12 would have to say "note my exception". I know we don't have to 13 say that any more. 14 THE COURT: I don't think they are worth very much and 15 I'm not going to be very impressed by them, but I will permit 16 them. I'll review them. 17 MR. ROSENBERG: To save time, can they be reviewed in 18 transcript form so we don't have to go through the process of 19 cueing them up? 20 THE COURT: However you want to identify them. I 21 think they should be identified as to whether they are because 22 of this report, in the event that I should end up holding for 23 Mr. Fabian's clients. In that case, we ought to be clear as to 24 exactly what infirmities of these documents are. So they 25 should be introduced as to tape and so on. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
46 35jopenf Gattillo - redirect 1 Now, I don't mean to cut you off, if you want to make 2 a complete record and have your expert testify. 3 MR. ROSENBERG: I think I better do that. 4 THE COURT: That might be prudent. 5 MR. ROSENBERG: Thank you. I understand. 6 THE DEPUTY CLERK: Stand and raise your right hand. 7 THOMAS J. OWEN, 8 called as a witness by the Plaintiff 9 having been duly sworn, testified as follows: 10 MR. FABIAN: Your Honor, could I just, perhaps, have a 11 minute? I have not seen any curriculum vitae. 12 Can I have a minute to look at his curriculum vitae? 13 (Pause) 14 MR. FABIAN: Again, your Honor, having looked at this, 15 we certainly don't need Mr. Rosenberg to qualify the witness. 16 We'll accept his qualifications as an expert. 17 MR. ROSENBERG: For record purposes, I move to 18 introduce Mr. Owen, his resume. I'll give two copies to the 19 clerk so one can be marked and one can be given to the witness 20 and one to the Court. This would be, I guess, 2. 21 THE COURT: Yes. 22 (Plaintiff's Exhibit 2 received in evidence) 23 MR. ROSENBERG: May I proceed? 24 THE COURT: Yes, sir. 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
47 35jopenf Owen - direct 1 DIRECT EXAMINATION 2 BY MR. ROSENBERG: 3 Q. Mr. Owen, just briefly, you know Mr. Gattillo, correct? 4 A. That's correct, I trained him. 5 Q. You trained him, right? 6 A. Yes. 7 Q. Now, did you have a chance to review the expert report, 8 so-called, that Mr. Gattillo provided, Exhibits now B and C? 9 A. Yes, I did. 10 Q. Was there something about the assignment that caused you 11 any pause? 12 A. Well, the assignment was narrowly focused. Normally when 13 we get an authenticity assignment, it's generally understood 14 it's for the entire tape, not just for excerpt or excised 15 portions of the tape. 16 According to the training and the schooling and even 17 the testing that I gave, and Mr. Gattillo passed with glowing 18 reviews, the problem is with this particular assignment, it 19 wasn't really an authenticity examination. 20 Q. What if Mr. Fabian or anybody asked you to review excerpts 21 of a tape? 22 A. Well, if he asked me to do it from an authenticity 23 standpoint, I would not take the case. I would insist that we 24 do the entire side of the tape, at least the entire side. And 25 also I would request in writing that he provide both the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
48 35jopenf Owen - direct 1 recorder and the original tape. 2 Q. Well, let's move quickly to that question. 3 You heard about the four audio cassettes that are 4 reflected in Exhibit C. Those were copies admittedly, correct? 5 A. That's correct. 6 Q. Is than an appropriate way to review tapes for purposes of 7 this sort of hearing that we're having today? 8 A. I don't review copies of tapes for authenticity. I 9 wouldn't take the case. 10 Q. You wouldn't take the case? 11 A. No. 12 Q. Why is that? 13 A. Because it has no value in a court of law, and people end 14 up having to pay twice. 15 Q. Meaning they pay for the copies? You tell them there is no 16 value, get me the originals? 17 A. Right. 18 Q. You might as well go right to the originals? 19 A. Maybe the used car salesman might use the bait and switch, 20 but people who are legitimate in the authenticity business 21 should not be doing that. 22 Q. You have been qualified in federal and state court many 23 times? 24 A. About 80 times in 28 states. 25 Q. Your phrase reviewing the copies was of no value, more SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
49 35jopenf Owen - direct 1 specifically, why is that? What is it you can't tell from 2 looking at the copies? 3 A. You can't tell -- for example, in this instance we're 4 talking about excised portions or excerpts and so forth. But 5 there was an issue of the stops and starts on the tapes. If 6 there are stops and starts, as you pointed out before, you 7 don't know what happened at the time that the recorder was 8 stopped and restarted again. Time can go by. The continuity 9 of the conversation, the lecture or whatever it was that was 10 taking place at the time is not whole. It is incomplete. 11 As to the matter of its wholeness or incompleteness, 12 that goes to the law, specifically US v. McGeiver. We have 13 said that in 1958 this was set down as the sentiment of what is 14 authenticity and what constitutes an authentic recording. 15 MR. FABIAN: Objection to what the expert testifies 16 the law is. He is not an expert on the law. 17 THE COURT: Overruled. 18 Q. You are an expert on tapes and introduction of tapes, 19 correct? 20 A. Yes. 21 Q. Do you believe, based on your expert opinion, more than 80 22 qualifications as an expert in 28 states, that the four 23 cassettes have been properly shown to be authentic recordings 24 for purposes of a court proceeding? 25 A. I don't think they meet the criteria for authenticity. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
50 35jopenf Owen - direct 1 Q. By the way, is it possible that the originals of those 2 tapes were tampered with? 3 A. Absolutely. 4 Q. Were edited? 5 A. Absolutely. 6 Q. Were monkeyed around with, if you will? 7 A. That's right. 8 Q. And you can't necessarily tell every such tampering, 9 deletion, omission by looking at a copy, can you? 10 A. We can discover most of them, but some of them are going to 11 get -- like what was referenced as drop outs on a 12 multi-generational copy, that is usually a pause from a 13 previous copy. When there is pause the first time on the 14 original, it leaves a signature on the tape and we can discover 15 it as a pause. After the tape has been copied a couple of 16 times, that signature doesn't appear and we get the drop out in 17 many cases the further you go down the line in the copy 18 process. 19 Q. You don't know what happened during those drop outs? 20 A. No. 21 Q. Just to confirm, based on your professional opinion, these 22 tapes have not been professionally authenticated, have they? 23 A. That's correct. 24 Q. In terms of the original Mazza reel to reel, Mr. Gattillo 25 testified that it had been repeatedly stopped and started. Did SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
51 35jopenf Owen - direct 1 you hear that testimony? 2 A. Yes, I did. 3 Q. What concerns does that give rise to? 4 A. Again, it goes back to the law. It doesn't mean the 5 criteria for authenticity. 6 MR. FABIAN: Objection. Move to strike. 7 THE COURT: Overruled. 8 Q. Have you listened to thousands and thousands of tapes? 9 A. Yes. 10 Q. What concerns arrive when you know an original tape has 11 been stopped and started? 12 A. The biggest concern is you don't know what was said during 13 the time it was stopped. 14 Q. There is no way to correct that, is there? 15 A. No. 16 MR. ROSENBERG: Thank you. I have nothing further. 17 MR. FABIAN: Just a few questions, your Honor. 18 CROSS EXAMINATION 19 BY MR. FABIAN: 20 Q. Mr. Owen, the test that Mr. Gattillo did on the Mazza 21 tapes, are those the correct tests? 22 A. Yes, he described the correct tests. 23 Q. Any other tests that could have been done? 24 A. My only criticism was in the magnetic development that I 25 didn't see any other magnetic development. That would be the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
52 35jopenf Owen - cross 1 true test as to whether not the test is a true copy or 2 original. 3 Q. Did you do any testing on the reel to reel Mazza tapes? 4 A. I didn't see the Mazza tapes. I did not hear the Mazza 5 tape. 6 Q. You did not see the tape itself? 7 A. No. 8 Q. You didn't examine the Mazza tape? 9 A. No, I did not. 10 Q. Did you examine the ARE tapes at all? 11 A. No. 12 Q. So you're testifying solely on the basis of your knowledge 13 in general of tapes, but you did not listen to the ARE tapes? 14 A. I'm testifying on the content on what constitutes 15 authenticity. 16 Q. If you had listened to the ARE tapes and they had been one 17 continuous tape, even if they were a second generation, could 18 they be authenticated in your view? 19 A. No. 20 Q. By the way, you understand this is a civil case and not a 21 criminal case? 22 A. That's correct. 23 Q. Do you have a different definition for criminal and civil? 24 A. Not when it comes to authenticity, no. 25 Q. You know these were not tapes by police investigators or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
53 35jopenf Owen - cross 1 state troopers for the purposes of presenting evidence at a 2 criminal trial? 3 A. That's correct. 4 Q. These are tapes that were made by someone approximately 20 5 years ago with no idea that they were going to be presented in 6 evidence. 7 MR. ROSENBERG: Objection. There is no observation 8 about any of the circumstances. 9 Q. Is critical listening one of the tests that can be done in 10 connection with the Mazza tape, for example? 11 A. Any tape, yes, that's correct. 12 Q. And the reel to reel is an original tape; is that correct? 13 A. Not necessarily. 14 Q. You don't know if in this particular case whether the Mazza 15 tape is an original tape, you didn't examine it; is that 16 correct? 17 A. That's correct. 18 Q. You heard the witness testify that he examined the Mazza 19 tape and it wasn't an original; is that correct? 20 A. Yes, I did. 21 Q. And in connection with your testimony here today, you 22 understand that, or I believe you heard Mr. Gattillo testify 23 that he examined the entire Mazza tape. You did hear him say 24 that, didn't you? 25 A. Yes, I did. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
54 35jopenf Owen - cross 1 Q. When you testified in response to Mr. Rosenberg about the 2 excerpts, that was because you believed that letter that was 3 sent to him and he said please look at the excerpts; is that 4 correct? 5 A. With regard to what? 6 Q. With respect to the Mazza tapes. 7 A. I don't know what the letter said. 8 Q. So you don't know, you didn't personally know when you came 9 here today whether Mr. Gattillo examined just the experts or 10 the entire collection of the Mazza tapes? 11 A. That's correct. 12 Q. And today you heard Mr. Gattillo testify that he examined 13 the entire Mazza tapes? 14 A. Yes, that's correct. 15 Q. And you heard him testify that he examined the entire ARE 16 tapes? 17 A. I'm not so sure he said he examined them in its entirety. 18 Q. You didn't hear that in court? 19 MR. FABIAN: The record will speak for itself. 20 I have no further questions. 21 MR. ROSENBERG: We have two experts both of whom 22 concur that the four ARE tapes cannot be authenticated because 23 they are copies. I have to say as to those tapes there is 24 nothing on the record. You gave them three chances over the 25 last year -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
55 35jopenf Owen - cross 1 THE COURT: Thanks. You're excused. 2 (Witness excused) 3 THE COURT: I think all of the tapes should be 4 excused. I will permit certain excerpts to be used in the 5 course of the testimony. 6 Okay, we'll take a few moments. 7 (Recess) 8 THE COURT: Yes. 9 MR. ROSENBERG: Your Honor, we're prepared as 10 plaintiffs to call our first witness, if the Court is still 11 inclined. I'll dispense with my five-hour opening statement, 12 your Honor, as you requested. 13 THE DEPUTY CLERK: Please remain standing and raise 14 your right hand. 15 JUDITH SKUTCH WHITSON, 16 called as a witness by the Plaintiff 17 having been duly sworn, testified as follows: 18 DIRECT EXAMINATION 19 BY MR. ROSENBERG: 20 Q. Ms. Skutch Whitson, where do you reside? 21 A. I reside in California, a suburb of San Francisco called 22 Chiberon. 23 Q. Is that where are you from originally? 24 A. No, I'm from New York City originally. 25 Q. How long have you been out on the west coast living out SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
56 35jopenf Skutch-Whitson - direct 1 there? 2 A. Since 1978. 3 Q. Would you briefly tell us your educational background 4 starting with your graduation from college? 5 A. After college I attended Columbia University. It was the 6 School of Journalism and Philosophy. 7 Q. Where did you graduate from college? 8 A. Wood College; Frederick, Maryland. 9 Q. And the delicate questions; in what year? 10 A. That's not delicate. 1952. 11 Q. How old are you? 12 A. I'm 72 years old. 13 Q. You made me feel younger. I'm feeling old. I was born in 14 1952, so I feel a little better. What educational pursuits did 15 you study after your graduation from college? 16 A. I was studying English literature and philosophy and some 17 classes in creative writing. 18 Q. And moving into the 1970s, early to mid 1970s, were you 19 employed at the time? 20 A. In the 1970s, I was employed at New York University. 21 Q. And -- 22 A. In the School of Continuing Education. I was on the 23 faculty of New York University. 24 Q. And what was your position; what did you do? 25 A. I was a lecturer, and I had a very large class, people who SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
57 35jopenf Skutch-Whitson - direct 1 were interested in the exploration of consciousness, which then 2 was called parapsychology. 3 Q. Tell us a little bit about, because that word gets thrown 4 about, what is parapsychology? 5 A. Well, since it was accepted to the AAAS, which is the 6 Scientific Organization of America, I can say it is a science. 7 And it's a science of the study of consciousness and all the 8 parameters of consciousness that we know of to date, 9 particularly extraordinary human functioning. 10 Q. And you were teaching this at NYU in the 1970s? 11 A. Yes, I was. 12 Q. And did you have other professional experiences, background 13 in this consciousness research area other than at NYU? 14 A. Well, I studied courses in the late 60s and very early into 15 '70 in the New School for Social Research, and they were also 16 courses in philosophy and consciousness research. 17 Q. Were you a member of any boards or institutes or did you 18 have any professional endeavors other than the NYU faculty? 19 A. I had a small not for profit organization which raised 20 funds for study in universities and hospitals in the field of 21 parapsychology. I also was a member, a founding member, of the 22 board of directors in the institute of noetic sciences, which 23 is now based in California. 24 Q. Now, you mentioned you had a small foundation. What was 25 the name of it? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
58 35jopenf Skutch-Whitson - direct 1 A. It was the Foundation for Parasensory Investigation. 2 Q. And whether under that name or not, does that foundation 3 still exist today? 4 A. Not under that name. The name was changed in 1976, I 5 believe, early in 1976 to the Foundation for Inner Peace. 6 Q. And then you mentioned that you had some role, I think, if 7 my notes are right, about noetic sciences? 8 A. Yes. 9 Q. And what was that endeavor? 10 A. Well, the institute in noetic sciences was founded by one 11 of our astronauts who was a member of Apollo 14, and he was the 12 sixth man to walk on the moon. And while there he had a deep 13 and expanding mystical experience, and decided when he came 14 back as a scientist to devote his life to the research of this 15 kind of experience. 16 Q. What is his name? 17 A. Dr. Edgar Mitchell. 18 Q. And he founded Noetic Science Institute? 19 A. Yes, he did. 20 Q. What role in the 1970s did you have in that Institute? 21 A. Well, I was founding board member and I was vice-chairman 22 of the board. 23 Q. And you have talked about teaching at NYU, your own 24 studies, the noetic sciences, are you familiar with the 25 Stanford Research Institute? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
59 35jopenf Skutch-Whitson - direct 1 A. Yes. 2 Q. What is that? 3 A. The Stanford Research Institute used to be part of Stanford 4 University, but separated off before I knew them, probably in 5 the 60s. And they were dedicated to research in all fields. 6 By the time I knew them, they were a contract organization so 7 their research was really under contract. And our Institute of 8 Noetic Sciences contracted with them to do some studies for our 9 institute. 10 Q. So you had some inner reaction -- we'll explore this 11 later -- with the Stanford Research Institute as well? 12 A. Yes, I did. 13 Q. And I know the Judge will appreciate this. We're going to 14 find kind of move things along. We're going to go to a 15 specific date in 1975. 16 Do you know, although they are no longer living, but 17 did you know Dr. Helen Schucman and Dr. William Thetford? 18 A. Yes, I did. 19 Q. When did you meet them; do you recall. 20 A. Red letter day, I call it. May 29, 1975. 21 Q. And can you describe to the Court, please, what the 22 circumstances were that led up to your meeting Dr. Schucman and 23 Dr. Thetford? 24 A. Yes, I will. 25 Sometime in the middle of 1975, I was involved in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 |
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