FURTHER TESTIMONY OF JAMES P. KELLY, CHIEF INVESTIGATOR, AND WILLIAM D. KANE, STAFF INVESTIGATOR, SPECIAL SUBCOMMITTEE ON INVESTIGATIONS, COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE

The CHAIRMAN. Mr. Lishman.

Mr. LISHMAN. Both of you gentlemen were present and heard the testimony of the preceding three witnesses?

Mr. KELLY. Yes, sir.

Mr. KANE. Yes, sir.

Mr. LISHMAN. Would you please state whether or not you did have conversations with any of the three preceding witnesses concerning the outages or outtakes and particularly outtakes of this particular program, "Pot Party at a University"?

Mr. KELLY. Yes, sir; we did in the conversation with Mr. Ferrante and Mr. Kenefick. In both instances, in the presence of Mr. Morsch. We did not discuss this with Mr. Morsch, because we did not think he had any expertise in this field.

I was not aware of the fact that he did not have expertise in the narcotics laws at the time. But on November 17, when we discussed this matter, we discussed it with people we felt had expertise in this, the witness Ferrante, and Mr. Kenefick.

Mr. LISHMAN. Would you repeat the substance of your conversation on the outtakes?

Mr. KELLY. As I mentioned yesterday in my testimony, Mr. Lishman, we had a particular reason for asking about the subject. We had run into difficulty with this same network in New York prior to this time on the subject of outtakes. I wanted to make sure that (a) they existed, and (b) that some time in the future we might have access to them. I did not discuss the access to them at that time. I discussed their existence. I was assured in the presence of their attorney, by both these gentlemen, that the outtakes did exist on November 17, now they have given ambiguous-at least Mr. Kenefick appears to me to have given ambiguous-answers, that first he had no recollection. I discussed with him in the hall this morning and he said he had no recollection.

Then he did have a recollection. And then he did not say it.

I can only tell you categorically what my comments were on November 17, and at that particular time and so did Mr. Ferrante, he said they had them. Mr. Ferrante, I might add, was close to the situation, because he was the news director.

Mr. LISHMAN. Mr. Kane, were you present at this meeting?
Mr. KANE. Yes, sir; I was.

Mr. LISHMAN. Did Mr. Kelly have the conversation he just related? Mr. KANE. Yes, sir. As I recall, Mr. Ferrante was asked about the outtakes after we had viewed the show, itself. We were sitting in the screening room. Mr. Kelly asked if the outtakes were still in existence. It was a very casual reference. He said, "Yes, they are." We did not pursue the matter at the time.

We were satisfied they were in existence in case we wanted to view them in the future.

As Mr. Kelly reported, we had spent several days in New York reviewing the riot film outtakes at all of the networks, and the only network that gave us a problem was CBS, which is why the situation arose in our discussion in Chicago.

Mr. KELLY. Incidentally, Mr. Lishman, I would like to comment here, and not gratuitously, but Mr. Morsch commented about conversations we had with him. We did have direct conversations with him that related to this investigation, and, as I said, Mr. Ferrante left the record yesterday with the impression that we wanted to talk to him without counsel. This was not so. He did not suggest the introduction of counsel until we asked him for the names of crewmembers who took part in this "Pot Party at a University." Then he said, "I am afraid I am going to have to talk to my lawyer." At that time he called Mr. Morsch and I spoke to Mr. Morsch on the phone, and postponed the meeting until 2 p.m. that afternoon.

We returned to the CBS offices at 2 p.m. that afternoon and had further conversations with him. In the course of this conversation, I asked him if we could talk to the reporter or to these people, and he took the position as counsel that we could not because he said. Mr. Stamos from the State's attorney's office was conducting an investigation.

I asked him what he thought the outcome of this investigation was and I will quote him. He said, "Stamos is our friend and I don't think there is going to be any prosecution."

Mr. LISHMAN. Was Mr. Kane present during this time?

Mr. KELLY. He was. As a matter of fact, it says so right here in my memo of November 20.

Mr. LISHMAN. Mr. Kane, you heard what Mr. Kelly testified concerning this conversation with Mr. Morsch.

Mr. KANE. Yes, sir.

Mr. LISHMAN. Were you present?

Mr. KANE. Yes; I was, sir.

Mr. LISHMAN. What is your best recollection of that conversation? Mr. KANE. It agrees with Mr. Kelly's testimony.

Mr. LISHMAN. Now Mr. Kelly, when you left the meeting, did you leave on the understanding that the CBS station people would be glad to have you come back again whenever you wished, that they would cooperate with you?

Mr. KELLY. For the purpose, we gave them our names and addresses and telephone number in Washington, Mr. Lishman. It was my understanding that as soon as, pardon the expression, investigation of the State's attorney's office would take place and be completed, they would be in touch with us.

Mr. LISHMAN. Did they ever get in touch with you after that?
Mr. KELLY. No, they did not.

Mr. LISHMAN. Do either of you gentlemen have anything to add in an attempt to clarify what actually transpired in this meeting of November 17?

Mr. KELLY. Yes. I would like to call attention to the paper that Mr. Minow submitted on behalf of Mr. Morsch, where they deny any recollection of script being discussed. If you will note the last line, I think, of the third page, you will see a reference to a script.

Mr. LISHMAN. I will hand you this memo which has been supplied. Mr. KELLY. I don't want to bridge the confidence either, Mr. Counsel, but I think this should be clearly brought out.

(Document handed to the witness.)

Mr. LISHMAN. What is the portion you were referring to?

Mr. Moss (presiding). To identify it for the record we are now talking about the contemporary memorandum which was supplied the committee, with the consent of CBS. (See p. 223.)

You may proceeed.

Mr. KELLY. I think we should respect the request of the attorneys in this matter, that it be kept confidential as far as the committee is concerned. But I do note that on the bottom of page 3 they distinctly. mentioned the fact that we discussed script.

Here the three of them are sitting in front of you telling you that they they have no recollection. One of them said he had no recollection, and then that no script was discussed.

Mr. MINOW. Mr. Chairman, may I raise a point of clarification? We have given you that document for the record.

Mr. Moss. Mr. Minow, I recognize that. It has been accepted for the record.

You may quote directly from it, Mr. Kelly.

Mr. KELLY. On page 3, at the very bottom of the page, is gratuituously added two words to what I actually said here. The question "Were the interviews with the students scripted?"

Answer, he puts down "in advance, no." They said now that no script was discussed at all.

Mr. LISHMAN. Who said no script was discussed at all?

Mr. KELLY. All three of them, the three witnesses you had before you, Mr. Lishman. Mr. Morsch, said he had no recollection of it. Mr. Kenefick had said he had no recollection. And then categorically that it was not discussed. And Mr. Ferrante said he had no recollection. Yet in the notes of the attorney the script is mentioned, and he adds the words "in advance." That is not what I said. I was interested in a working script. They knew what I was talking about. I have had television experience, too.

Mr.LISHMAN. What is a working script?

Mr. KELLY. A working script is a script that a producer and writer make up prior to the program, and sometimes during the program it is finally reduced to a final script of the material that appears on the air.

That is usually taken from the audio tape of the program, itself, prior to the program appearing on the air. This is done for a number of reasons. It is done so that counsel can clear it. It is done so that errors in fact can be ascertained. It is done so clarity and flow can be maintained in the script, itself.

I have never heard of a situation where a program is put on the air in advance that had no script, particularly a program of this nature. This is precisely why I asked the question. I was astounded when they said there was no script. I asked them, as a matter of fact, beyond that, and Mr. Morsch will recall this, I am sure, though it is not in his notes, when we were in the control room or the screening room looking at this program I took notes in the dark as fast as I could to try to reduce this to some sort of a script form for my own use.

I said to them, "Do you anticipate some time in the future some secretary will be typing this audio tape and making a script out of it?" They said "yes", when in fact the script did already exist and preexisted our coming to the station, and preexisted the airing of the

program.

Mr. Kenefick quibbled with me about it in the hall this morning about the idea of a script and he said he thought we meant before October 22.

I thought Mr. Dingell brought out clearly it was after October 22 and prior to our visit we were discussing the existence of the script. Mr. Moss. Mr. Van Deerlin.

Mr. VAN DEERLIN. Is it possible there is confusion here between a script for a program as it was prepared for the air and a possible charge that participants in the pot party operated from a script? Mr. KELLY. Both issues were raised, Mr. Van Deerlin.

In order to clarify both of these issues, I wanted to know if a script existed. We were trying to get as much investigative material as we possibly could. We were denied access to the reporter or the crewmembers because of counsel. So we were now trying to find as much information as we could about this before we proceeded to other witnesses who told us what actually happened.

Mr. Moss. Mr. Brown.

Mr. BROWN. I just want to try to clarify the substance of all of this with a couple of questions.

I understand it is normal for a script or an outline to be prepared in advance of a filming of a show, and you asked for this material. Mr. KELLY. I asked for any scripts, Mr. Brown.

Mr. BROWN. Did you clearly specify that kind of script?

Mr. KELLY. In our discussion, I commented to them that I thought it was highly unusual that the program as controversial as this would be put on the air without a script, so a script must have existed.

Mr. BROWN. I think now that there are two kinds of scripts. One is a finished script available before the program is put on the air, and the other, an outline, if we can call it a script, or what they intend to portray in film.

Mr. KELLY. Mr. Brown, they pretty much foreclosed the issue when they said there was no script, period.

Mr. BROWN. You assumed them to mean that there was no advance preparation and no followup script?

Mr. KELLY. I assumed there was no piece of paper or papers in writing that they could present to us at that time which represented any script on this highly controversial program, I considered this highly unusual at the time.

Mr. BROWN. Did you make that point?

Mr. KELLY. I did.

Mr. BROWN. That is all.

Mr. Moss. Mr. Rogers.

Mr. ROGERS. Do you have any background in radio or TV where you would know what the parlance is or what the practices are?

Mr. KELLY. Yes, sir; I do. I have worked scripts up myself and I

have produced programs.

Mr. BROWN. So you have had actual experience in this?

Mr. KELLY. Yes, sir; I have.

Mr. ROGERS. What station were you with?

Mr. KELLY. If you will pardon the expression, the very same network. I worked for 2 years under probably one of their best producers, a perfectionist, who crossed all his t's and dotted all his i's and gave them award-winning programs. He was a demanding individual. Mr. ROGERS. Who was this?

Mr. KELLY. This was Jay McMullen who produced "The Biography of a Bookie Joint," which was referred to yesterday.

Mr. ROGERS. Would you say that the procedures used here is an unusual procedure?

Mr. KELLY. Highly unusual and highly questionable, I admit.
Mr. ROGERS. Thank you very much.

Thank you, Mr. Chairman."

Mr. Moss. If there are no further questions, you gentlemen may be excused.

Mr. MINOW. Mr. Chairman, may I ask whether any contemporaneous notes were made by the staff at this meeting and whether we might have a copy of that please?

Mr. Moss. That is a matter which the committee would have to consider and I assume it would consider it in executive session. In this instance they are our counsel and as their clients we will have to have the kind of discussion you had in the front row awhile ago.

Mr. MINOW. I do notice that Mr. Kelly referred to a memorandum he prepared. If we could have it, we would appreciate it.

Mr. Moss. As I stated, Mr. Minow, there are certain rulings that the Chair cannot make and it requires the concurrence of the committee. That concurrence would occur in connection with an executive session. Certainly your question will be brought to the attention of the committee at the appropriate time.

Mr. MINOW. Thank you, Mr. Chairman.

Mr. Moss. Mr. Missett, will you take the stand?

FURTHER TESTIMONY OF JOHN MISSETT, NEWS REPORTER,
WBBM-TV, CHICAGO, ILL.

Mr. Moss. I believe you have already been sworn, Mr. Missett.
Mr. MISSETT. Yes, sir.

Mr. ROGERS (presiding). Mr. Lishman?

Mr. LISHMAN. Mr. Missett, do you know a Malcolm B. Spector? Mr. MISSETT. Yes, sir; I do.

Mr. LISHMAN. Is he present in the room today?

Mr. MISSETT. I am not sure,

sir.

Mr.LISHMAN. Mr. Spector, would you please rise?

Do you recognize him?

Mr. MISSETT. Vaguely. I do not recognize the beard and short hair. Mr. LISHMAN. Mrs. Spector, would you please rise?

Have you seen this lady before?

Mr. MISSETT. I have never seen her before in my life, to my knowledge.

Mr. LISHMAN. You had better take another look. You are under oath.

Mr. MISSETT. Her face is not familiar, sir.

Mr. LISHMAN. Very well.