391 F.Supp. 1353 (E.D.La. 1975), Civ. A. 70-466, Shaw v. Garrison

Docket Nº:Civ. A. 70-466
Citation:391 F.Supp. 1353
Party Name:Shaw v. Garrison
Case Date:March 04, 1975
Court:United States District Courts, 5th Circuit, Eastern District of Louisiana
 
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Page 1353

391 F.Supp. 1353 (E.D.La. 1975)

Clay L. SHAW

v.

Jim GARRISON et al.

Civ. A. No. 70-466.

United States District Court, E.D. Louisiana.

March 4, 1975

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F. Irvin Dymond, Edward F. Wegmann, William J. Wegmann, New Orleans, La., fr plaintiff, Clay L. Shaw.

Jim Garrison, New Orleans, La., in pro. per.

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Eberhard P. Deutsch, Malcolm W. Monroe, Deutsch, Kerrigan & Stiles, New Orleans, La., for defendant, Joseph M. Rault, Jr.

Peter J. Butler, Antonio E. Papale, Jr., Clem T. Sehrt, New Orleans, La., for defendant, Cecil M. Shilstone.

Eberhard P. Deutsch, Malcolm W. Monroe, Deutsch, Kerrigan & Stiles; Claude W. Duke, Duke & Porterie, New Orleans, La., for defendant, Willard E. Robertson.

James J. Gleason, III, New Orleans, La., for defendant, Perry Raymond Russo.

Richard C. Baldwin, Adams & Reese, Lawrence D. Wiedemann, Wiedemann & Fransen, New Orleans, La., for defendant, Dr. Esmond A. Fatter.

HEEBE, Chief Judge:

We write today yet another chapter in what is undoubtedly one of the most bizarre episodes in American political and legal history. The matter before the Court arises out of the well publicized investigation conducted by then District Attorney of Orleans Parish, Jim Garrison, concerning the assassination of President John F. Kennedy on November 22, 1963.

The instant case is a civil action for damages brought by plaintiff Clay L. Shaw against Garrison and others with whom he allegedly conspired to deprive plaintiff of his civil rights by prosecuting him in bad faith for conspiracy to assassinate President Kennedy and for perjury charges growing out of the original prosecution. The complaint was filed in February 1970 and alleges causes of action under the federal civil rights statutes, 42 U.S.C. §§ 1983, 1 1985, 2 1986. 3 The Court's jurisdiction is invoked pursuant to 28 U.S.C. § 1343,

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the jurisdictional counterpart of the civil rights statutes, and 28 U.S.C. § 1331.

In the more than five years from the date of filing of the complaint to the present, this case has yet to go to trial. Substantial discovery has been conducted and answers to interrogatories have been filed by plaintiff as well as four of the six defendants. Trial had been set for November 4, 1974.

On August 15, 1974, Clay Shaw died. He was survived by neither spouse, children, parents, nor siblings. On October 3, 1974, the Court granted the motion of Edward F. Wegmann, Executor of Shaw's last will, to be substituted as plaintiff in place of Shaw, pursuant to Rule 25(a) of the Federal Rules of Civil Procedure. Defendants Rault, Shilstone, Robertson, and Fatter have now brought two motions before the Court: (1) a motion to dismiss for abatement of the claim upon Shaw's death; and (2) a motion to dismiss the cause of action under 42 U.S.C. §§ 1985 and 1986 for failure to state a claim upon which relief can be granted.

All parties initially directed their arguments on the abatement issue solely to the proper disposition required under state law. The Court requested additional briefs, which the parties have filed, addressed to the question of whether this Court can, and should, apply a federal common law of survival in civil rights actions, and deferred decision on both motions pending receipt of those briefs. We conclude that the matter would abate under the state law of Louisiana. However, for reasons discussed below the Court finds that it is not bound by state law. After considering the purposes underlying the federal civil rights statutes, the development of the laws of survival and abatement in the federal courts and the fifty states, and the necessity in cases such as this to fully effectuate the broad remedial goals of these federal statutes, it is the conclusion of this Court that federal common law requires that this pending action survive in favor of the executor of decedent's last will. Finally, we agree with the defendants that the plaintiff has not stated a cause of action under 42 U.S.C. §§ 1985 and 1986, and we grant their motion to dismiss as to those claims. 4

I. The Allegations of the Complaint

For purposes of determining a motion to dismiss, all the allegations of the complaint must be taken as true. These allegations are substantially the same as the facts found and set out at length in a related case, Shaw v. Garrison, 328 F.Supp. 390 (E.D.La.1971), aff'd 467 F.2d 113 (5th Cir. 1972), in which Judge Herbert W. Christenberry of this court permanently enjoined Garrison and his employees from further prosecuting Shaw in a then pending state criminal action for perjury. Although both questions before this Court are clearly framed legal issues dependent on only a few uncontested facts, we recite plaintiff's allegations in some detail here in order to give a full understanding

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of the background and present posture of the case.

The matter begins, tragically, with the assassination of President John F. Kennedy in Dallas, Texas, on November 22, 1963. Lee Harvey Oswald was arrested and charged with the crime, but he himself was killed shortly after his arrest. A blue-ribbon panel of distinguished individuals, headed by then Chief Justice of the United States Earl Warren, was appointed by President Lyndon B. Johnson 'to ascertain, 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.' Executive Order No. 11130. The final report of the Warren Commission, consisting of 26 volumes of evidence, concluded that Lee Harvey Oswald was the sole person responsible for the death of President Kennedy. Specifically, the Commission found no evidence of any conspiracy to assassinate President Kennedy. 5

Plaintiff alleges that during November 1966, defendants entered into a conspiracy among themselves and with others not named as defendants herein to misuse the legal machinery of the State of Louisiana by conducting a fraudulent investigation of the assassination solely for the personal and political aggrandizement of the conspirators, particularly Garrison, Robertson, Rault, and Shilstone. Defendants Robertson, Rault, and Shilstone are connected with the alleged conspiracy primarily through their formation of an organization known as 'Truth and Consequences' in the latter part of February 1967, shortly before plaintiff's arrest. The organization was formed to provide financial support for Garrison in the conduct of his investigation. Plaintiff alleges that the three defendants named above were kept aware of the progress of Garrison's investigation and were continually consulted by him. A sum in excess of seventy thousand dollars was provided by the Truth and Consequences organization, substantially all of which was contributed between the dates of Shaw's arrest in March 1967 and his acquittal of the conspiracy charges in March 1969. Further, plaintiff alleges that defendant Robertson provided Garrison with thirty thousand dollars of cash funds for the investigation and further assisted Garrison by employing one of the state's major witnesses, a member of the Dallas police department, prior to and during the conspiracy trial. Portions of the money contributed by Truth and Consequences were used, plaintiff contends, for the procurement of perjured testimony.

Plaintiff was first interviewed by Garrison's staff on December 21, 1966, at the District Attorney's office. He was summoned to the District Attorney's office again on March 1, 1967, for further questioning. He was arrested later that day, and charged with having participated in a conspiracy to murder President John F. Kennedy. Members of the news media had been alerted to plaintiff's arrest, and when he was led from Garrison's office, the event was fully reported by the media. Shaw could have been taken from the District Attorney's office through a back exit, without having to pass before the gathered media. This was one of numerous incidents alleged by plaintiff which, he contends, proves that the major purpose of the investigation was publicity for the investigators, not prosecution of guilty persons.

The main witness against Shaw at the preliminary hearing was defendant Perry Raymond Russo. Russo testified that he had been present at a meeting at

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which Shaw conspired with Lee Harvey Oswald and one David W. Ferrie 6 to assassinate President Kennedy. This testimony, again according to the allegations of plaintiff in his complaint, was procured by the use of hallucinatory drugs and hypnosis administered by Dr. Esmond A. Fatter, defendant herein, and the late Dr. Nicholas Chetta, Coroner of Orleans Parish, acting under instructions from Garrison. Dr. Fatter placed Russo in an hypnotic trance on at least two occasions during which the hypnotic suggestions were made.

In June of 1967, Lieutenant O'Donnell of the New Orleans Police Department and the Department's polygrapher, acting on instructions from Garrison, attempted to give Russo a lie detector test. The test was not successful. However, during an interview later that day, Russo told O'Donnell that he could not identify Shaw as having been present at the alleged conspiratorial meeting. Garrison was given a written report of this interview with Russo, but never made the report available to plaintiff's counsel.

Trial in the matter began on January 21, 1969, and ended March 1, 1969. At the trial, Russo was unable to identify Shaw as one of the alleged conspirators whom he had previously testified he had heard plotting the assassination of President Kennedy. Plaintiff alleges that because of the O'Donnell report and for other reasons Garrison knew at the time of trial that Russo could not so identify Shaw. He further alleges that the other witnesses who...

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