Hearings

The CHAIRMAN. Mr. Attorneys, do you wish to confer with your client before the committee begins to examine him?

Mr. SCHWARTZ. Thank you, sir. Will you indulge us just a moment?

Senator WELKER. Let the record show the witness and his lawyers are now conferring.

TESTIMONY OF ROGER SIMKINS, WASHINGTON, D. C., ACCOMPANIED BY GEORGE HAYES AND MILFORD SCHWARTZ, ATTORNEYS

Mr. SIMKINS. Congressman, I would like to ask to read a little statement that I want to say for myself.

The CHAIRMAN. Proceed.

Mr. SIMKINS. I do not desire this hearing as to me to be televised. All of the television equipment is confusing to me and it would affect me properly answering any such questions as I may be advised that it is proper for me to answer.

Particularly I desire the removal of the microphone in front of me, as I am of the opinion that they would keep me from properly conferring with my counsel, and hence deprive me of the rights to counsel to which I am entitled. I request that no picture be taken of me during the time that I may be testifying.

The CHAIRMAN. The committee, after mature consideration, decided to permit these hearings to be televised. One exception to the decision was made for reasons which were deemed adequate by the committee. But those reasons are not applicable in your case. Therefore, you are ordered to proceed to testify. The risk of refusing will be yours.

Mr. HAYES. Mr. Chairman, may I call attention to the fact that with respect to the instance to which you make reference, I presume Major Barrett, that the only difference, as I conceive it-and I was here when the statement was made-between the statement made by Mr. Simkins and that made by Major Barrett was that Mr. Maher had the unfortunate defect as far as his eyesight was concerned, and I remember that the chairman made some comment at that time about that circumstance.

We make no such claims as far as either Mr. Schwartz or I are concerned. However, it is also a matter of record as far as this hearing is concerned that the mikes that were in front of Major Barrett were removed, that the reason given was the same reason as given by Mr. Simkins, and it is certain that the question of Mr. Maher's eyes could have had nothing to do with the mikes that were in front of Mr. Barrett.

I want the record to disclose that therefore if you are ruling as you have indicated, that it would seem to me that there is a discrimination being shown as against this witness.

The CHAIRMAN. The committee has reasons other than any that were stated by Major Barrett or his counsel for desiring the major's testimony in the record before we proceeded with this hearing. We did not have time to litigate his refusal to testify before microphones or television cameras. Consequently we excluded him from the opera tion of the rule, in order to obtain his evidence at once.

Mr. HAYES. My client has been named, sir, in practically every other line of this testimony, and the fact that he is

The CHAIRMAN. But he has not been a member of the police force of the District of Columbia, has he?

Mr. HAYES. No; he has not, but I do not anticipate that the rule is a discriminatory rule in favor of anybody, high or low.

The CHAIRMAN. Certainly not. The committee believed that since we were investigating him as a high official of the Police Department, it was important to have his statements in the record at once.

The progress of this hearing does not depend upon the witness answering now. If he does not want to testify while the television cameras are operating, you and your associate counsel can advise him what to do. Thereafter, the committee will take appropriate action.

Senator WELKER. I think I should advise counsel that very recently I have been informed by people who should know television, in fact the man who runs the television camera, there is absolutely a minimum of noise with respect to a television camera, and that you are not blinded by any lights, because the television that is operated here operates without lights. I am informed that the newsreel cameramen are the only ones who use lights.

Now, if you have an objection to the particular lights, counsel, I would suggest that you make it. In the absence of a showing that your client is interfered with by the television camera, I would say that the chairman's ruling is well taken in view of the vote by the majority of this committee.

Mr. HAYES. Mr. Senator, with respect to the question of the television, candidly, my objection doesn't go as strongly to that as it does to the balance of the objection with respect to the microphones.

It seems to me, as I say, that no distinction ought to be made between witnesses. It seems to me equally so that if Major Barrett took the position which I heard in this court, in this assemblage, that he could not properly advise with his counsel by reason of these mikes, calling attention to their sensitiveness, and with no reason other than that given, and the committee then taking the position that he did not need to testify before these mikes, I say that the same ruling ought to be made as to this witness, particularly when, as the committee will know, there will be innumerable instances, I presume, in the questioning where the right of consultation with his counsel does become a necessity, and I think, as I have indicated, that any distinction ought to be obviated.

Senator PASTORE. Would you be willing to remove your objection if during the times when you do consult with your client we did cover up the microphones so that no sound could be picked up?

Mr. HAYES. I would still say, sir, that if that were done, that it is still a discriminatory procedure when that was not done with Major Barrett.

Senator PASTORE. It is not a matter of discrimination, as I look at it, as to a matter of right. We did not decide that that would be the procedure to be followed in all instances when the chairman ruled in reference to Mr. Barrett.

We made that position very, very clear because I was one of those who felt the objection was frivolous, and I still think that your ob

of consulting with your client and your client consulting with you, his lawyer, I think we can make arrangements to silence those microphones during that period.

Mr. HAYES. I can't help but be reminded also that as a part of this procedure the suggestion has been had that when an inquiry is made, that the respondent is required to answer spontaneously, that he does not have the right to consult with counsel at that time.

I notice that the Senator has already called attention to the fact that he was at the beginning conferring with his counsel, the apparent reason being that the question of intercourse between us here at this table is to be minimized. Also the suggestion has been had from you, sir, that you don't want the record filled up with objections. We have a client's rights that we are attempting to protect, and I am concerned about it, candidly.

Senator WELKER. Can you indicate in one instance in which your client or anyone else's client has been required to answer a question when counsel wanted to confer with him? Not once has that happened. The chairman here has repeatedly given every avenue for counsel to confer with their client.

Mr. HAYES. I heard the pronouncement made, am I not mistaken, as a part of this procedure.

Senator WELKER. And that was to keep down from hearing three witnesses instead of one, and you have never been in an orderly court procedure or a hearing procedure such as this when the client could confer with two counsel and then give his answer after every question. Mr. HAYES. Well, of course, that I hope will be a part of this record. There are immediate questions that are asked. That immediate question might be entirely innocuous.

Senator WELKER. Well, you certainly know this, don't you, counsel, that you can take advantage of that in any court that you might be prosecuted in, to go on appeal.

Mr. HAYES. I also know you have got to lay the foundation in order to properly do it.

Senator WELKER. When I made the motion myself, I stated that you were entitled to make your objection.

Mr. HAYES. Do I understand, then, that in each instance we may interpose our objections?

Senator WELKER. I certainly think so.

Mr. HAYES. All right, sir.

Senator WELKER. I believe that is the law here or any place else. Mr. HAYES. And that that objection may run not only to an immediate question but if in our opinion we feel it to be a chain of questions which might tend to incriminate, that is a matter still to be advised.

Senator WELKER. That isn't the ruling of the Chair, of course.

Mr. HAYES. I presume I will also be subject to the rulings of the Chair.

Senator WELKER. That is my understanding, and I make the motion.

The CHAIRMAN. You will have an opportunity to make as many objections as you wish. This witness will be treated precisely as every other witness has been treated in everything that pertains to his rights.

Let me emphasize the fact that there has not been and will not be

rank, or station. We sustained Major Barrett's cbjections to testifying under television and before the microphones, not for his accommodation or the accommodation of his attorneys, but solely because the committee believed that the major's testimony should be in the record before other witnesses were examined.

You may rest assured that this committee will endeavor properly to protect the rights of witnesses and also the rights of the public, in making this investigation.

Gentlemen, will you now please decide whether your client should refuse to testify.

Mr. HAYES. In order that we proceed, Mr. Chairman, as advised by the committee, in instances where in the opinion of the witness an answer would tend to incriminate him, do you desire simply that he shall say "I refuse to answer"?

Senator WELKER. I would like the real objection to go in first, and then the Chair will instruct you that your objection "I refuse to testify" will be construed as being the whole legal objection.

Mr. HAYES. Well, may it be done in this wise? We anticipate, the gentleman with whom I am associated and I, that the failures to answer will be based upon the fact that they tend to incriminate. May it be understood if he refuses to answer that that is the basis of it, unless other objections be suggested?

Senator WELKER. That will be fine. I think that will shorten it, counsel.

Mr. HAYES. Thank you, Mr. Senator.

Mr. BAUMAN. What is your business or occupation?

Mr. SIMKINS. I refuse to answer on the ground it may intend to incriminate me.

Mr. BAUMAN. Your name is Roger Simkins?

Mr. SIMKINS. That's correct.

Mr. BAUMAN. S-i-m-k-i-n-s?

Mr. SIMKINS. That is correct.

Mr. BAUMAN. Your first name is spelled R-o-g-e-r?

Mr. SIMKINS. That is correct.

Mr. BAUMAN. Have you ever described yourself as a speculator? Mr. SIMKINS. I refuse to answer on the grounds it may intend to incriminate me.

Mr. BAUMAN. You are also known as Whitetop, is that correct? Mr. SIMKINS. I refuse to answer on the ground it may intend to incriminate me.

Senator WELKER. Counsel, I hope and the committee hopes that by inadvertence you are not letting the witness get into trouble by a silly answer such as that.

We don't want our action here to mislead you to the point where he has to make that objection where he might be found in contempt. Now a man's name certainly would not tend to incriminate him.

Mr. HAYES. I am not entirely in accord with you, Mr. Senator, particularly when the query was not with regard to a name. was with regard to some nickname.

Senator WELKER. A man's nickname, I can't see how that would tend to incriminate a man.

Mr. HAYES. I don't want to argue the point except to say to you that I could give to your Honor or give to your committee instances where that very thing might be an incriminating circumstance.

Senator WELKER. You are going very far afield if you can show me any law where a man's name or a nickname would tend to incriminate him. I don't want to argue with you.

You may be sure this record is going to be carefully scrutinized by this committee. If your client doesn't want to answer, he probably will be cited for contempt and there probably will be future hearings and through some little harmless thing like what is his nickname, I would hate to see him put to expense or trouble by virtue of not answering that. I want to be fair, counsel.

Mr. HAYES. I appreciate it, Mr. Senator.

Mr. BAUMAN. Will you repeat the question, please?

Mr. HAYES. Will you allow us to confer for a second?
Mr. SCHWARTZ. Will you repeat the question?

Mr. HAYES. He is prepared to answer it.

Mr. BAUMAN. Are you also known by the name of Whitetop?
Mr. SIMKINS. They call me Whitetop sometimes; yes.

Mr. BAUMAN. How long have you lived at your present address?
Mr. SIMKINS. I want to be sure now. About 5, 6, or 7 years.

Mr. BAUMAN. I wonder if you could try to speak up just a little louder.

Mr. SIMKINS. I don't want to be positive, but between 5 and 6 and 7 years.

Mr. BAUMAN. What police precinct is it located in?

Mr. SIMKINS. I believe 12.

Mr. BAUMAN. What precinct is the Brass Rail located in?

Mr. SIMKINS. Two.

Mr. BAUMAN. The Brass Rail is a bar owned and operated by your wife; is that correct?

Mr. SIMKINS. I refuse to answer on the grounds it may lead up to incrimination.

Mr. BAUMAN. Have you not repeatedly stated that the Brass Rail is owned by your wife and operated by your wife?

Mr. SIMKINS. I refuse to answer on the grounds it may tend to incriminate me.

Mr. BAUMAN. Have you not many times under oath answered that question without invoking a constitutional privilege?