328 F.Supp. 390 (E.D.La. 1971), Civ. A. 71-135, Shaw v. Garrison

Docket Nº:Civ. A. 71-135
Citation:328 F.Supp. 390
Party Name:Shaw v. Garrison
Case Date:May 27, 1971
Court:United States District Courts, 5th Circuit, Eastern District of Louisiana

Page 390

328 F.Supp. 390 (E.D.La. 1971)

Clay L. SHAW


Jim GARRISON, individually and as District Attorney for the Parish of Orleans, State of Louisiana.

Civ. A. No. 71-135.

United States District Court, E.D. Louisiana, New Orleans Division.

May 27, 1971.

Page 391

Edward F. Wegmann, William J. Wegmann, F. Irvin Dymond, Salvadore Panzeca, New Orleans, La., for plaintiff.

John P. Volz, Andrew J. Sciambra, William R. Alford, Jr., New Orleans, La., for defendant.

CHRISTENBERRY, District Judge.

Clay L. Shaw, plaintiff, has filed a complaint seeking to enjoin and restrain defendant, Jim Garrison, District Attorney for the Parish of Orleans, State of Louisiana, and members of his staff, from further prosecution of a pending

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state criminal case entitled 'State of Louisiana vs. Clay L. Shaw,' No. 208-260, Section 'A' of the Criminal District Court of the Parish of Orleans, State of Louisiana. Shaw also seeks to restrain the defendant and his assistants from filing and prosecuting any additional criminal charges arising out of or incidental to the allegations of his complaint. In his complaint plaintiff charges that Garrison conspired with Willard E. Robertson, Joseph M. Rault, Jr. and Cecil M. Shilstone, members of an organization known as Truth or Consequences to deprive him of his constitutional rights.

Plaintiff invokes the jurisdiction of this court pursuant to Title 28 U.S.C. § 1343(3) (4) and Title 42 U.S.C. § 1983 and § 1985 as well as under the Constitution of the United States. He alleges that he has suffered and will suffer irreparable injury due to the defendant's continuing misuse and abuse of the prosecutorial powers vested in defendant by virtue of his office as District Attorney for the Parish of Orleans. Plaintiff contends that Garrison has continued to use in bad faith the state's legal machinery in the prosecution of innocent citizens, such as plaintiff, with no hope of success in obtaining a conviction.

On January 18, 1971, the trial date of the state case, the plaintiff applied to this court for a temporary restraining order. This court denied the application because of the imminence of the trial and the ex parte nature of the temporary restraining order. The attorneys for the plaintiff then applied to the United States Court of Appeals for the Fifth Circuit for emergency relief. After a conference with this court a panel of judges of the Fifth Circuit Court of Appeals entered an order directing this court to hold a hearing on the plaintiff's application for injunctive relief. The state case, meanwhile, was continued to January 20th. Upon remand, and after a conference with counsel for both parties present, this court entered a temporary restraining order enjoining the defendant from taking any further action in the prosecution of the state case, pending a hearing on the preliminary injunction which was set for January 25th.

At the hearing, which took three days, numerous witnesses were heard and fifty-five exhibits were offered and filed into evidence by the plaintiff. Both sides were given time to file and have filed briefs.

The facts that give rise to this proceeding result from the defendant Garrison's investigation of the assassination of President John F. Kennedy. To characterize these facts as unique and bizarre is no exaggeration. The plaintiff Shaw has been tried and acquitted on the heinous charge that he conspired to assassinate President Kennedy. Subsequent to his acquittal, the defendant Garrison immediately, and without any witnesses other than those he used at the trial, charged Shaw with perjury. It is this pending state proceeding that the plaintiff seeks to enjoin. Garrison contends that during the course of the conspiracy trial, Shaw, who took the stand in his own defense, perjured himself when he denied having known either David Ferrie or Lee Harvey Oswald, with whom he was alleged to have conspired to assassinate the President.

At the outset, it is to be noted that this court has had the benefit of the most recent expressions of the United States Supreme Court dealing with federal intervention in pending state criminal prosecutions: Younger v.l Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971); Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971). These cases reaffirm 'the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances.' Younger v. Harris, 401 U.S. at 41, 91 S.Ct. at 749. This court must determine whether the facts of this case fall within the ambit of the 'special circumstances' exception expressed in

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Younger. Discussing the nature of these circumstances the Court in Younger stated:

'In all of these cases the Court stressed the importance of showing irreparable injury, the traditional prerequisite to obtaining an injunction. In addition, however, the Court also made clear that in view of the fundamental policy against federal interference with state criminal prosecutions, even irreparable injury is insufficient unless it is 'both great and immediate.' Fenner, supra (Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927 (1926)). Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered 'irreparable' in the special legal sense of that term. Instead, the threat to the plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. See, e.g., Ex parte Young, supra, 209 U.S. (123) at 145-147, 28 S.Ct. (441) at 447-449 (52 L.Ed. 714).' 401 U.S. at 46, 91 S.Ct. at 751.

Further, in denying injunctive relief to Harris the Court stated:

'It is against the background of these principles that we must judge the propriety of an injunction under the circumstances of the present case. Here a proceeding was already pending in the state court, affording Harris an opportunity to raise his constitutional claims. There is no suggestion that this single prosecution against Harris is brought in bad faith or is only one of a series of repeated prosecutions to which he will be subjected. In other words, the injury that Harris faces is solely 'that incidental to every criminal proceeding brought lawfully and in good faith,' Douglas (Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943)), and therefore under the settled doctrine we have already described he is not entitled to equitable relief 'even if such statutes are unconstitutional,' Buck (Watson v. Buck, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416 (1941)).' 91 S.Ct. at 753, 401 U.S. at 49.

Shaw in his complaint alleges that the pending state prosecution has been instituted by Garrison in bad faith and for the purpose of harassment. He contends that this state proceeding is the second of a series of multiple prosecutions to which he has been and will be subjected. These allegations clearly state a basis for injunctive relief, if proven. See Buie v. Pigott, 439 F.2d 153 (5th CCA 1971). They meet the 'special circumstances' requirements of Younger. The question is whether the facts as adduced at the hearing support the allegations. To resolve this question a review of those facts is necessary.

On November 22, 1963, President John F. Kennedy was assassinated in Dallas, Texas. Immediately thereafter, Lee Harvey Oswald was accused of committing the crime. Unfortunately, less than forty-eight hours after the President's death, Oswald was slain. The defendant Garrison testified that his office first participated in an investigation of the President's assassination when it learned that Oswald had spent the prior summer in New Orleans. A short investigation by his office resulted in the arrest of David Ferrie who was turned over to the Federal Bureau of Investigation for questioning. 1 It was not until several years later, in November of 1966, that the defendant decided that further investigation by him was necessary. This decision came after an extensive investigation by a commission, the Warren Commission, created on November 29, 1963 pursuant to Executive Order No. 11130 by President Lyndon B. Johnson 'to ascertain,

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evaluate and report upon the facts relating to the assassination of the late President John F. Kennedy and the subsequent violent death of the man charged with the assassination.' The testimony of approximately 550 witnesses before the Commission and more than 3100 exhibits received into evidence make up the contents of 26 bound volumes. However, despite this exhaustive probe, Garrison, according to his testimony, concluded that 'the Federal Government had not been looking into it honestly, and that it had been a fake investigation * * *' so in November, 1966, he decided that his office would undertake what he termed 'a serious investigation.'

At this point, a serious question concerning the basis for Garrison's decision arises. Apparently, his jurisdiction was based on Oswald's activities in New Orleans in the summer of 1963. 2 However, it is strange indeed that, nearly three years after the assassination, Garrison would decide to undertake an investigation of such gravity merely because he disagreed with the findings of the Warren Commission and Oswald had spent some time in New Orleans. The defendant did not testify as to what evidentiary basis led him to believe that further investigation of the assassination of the President was needed.

The testimony of William A. Gurvich corroborated the defendant's statement that the assassination investigation began in the latter part of 1966. Gurvich, an experienced investigator whom this court...

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