467 F.2d 113 (5th Cir. 1972), 71-2422, Shaw v. Garrison

Docket Nº:71-2422.
Citation:467 F.2d 113
Party Name:Clay L. SHAW, Plaintiff-Appellee, v. Jim GARRISON, Individually, and as District Attorney for the Parish of Orleans, State of Louisiana, Defendant-Appellant.
Case Date:July 31, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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467 F.2d 113 (5th Cir. 1972)

Clay L. SHAW, Plaintiff-Appellee,

v.

Jim GARRISON, Individually, and as District Attorney for the Parish of Orleans, State of Louisiana, Defendant-Appellant.

No. 71-2422.

United States Court of Appeals, Fifth Circuit.

July 31, 1972

Certiorari Denied Nov. 20, 1972.

See 93 S.Ct. 467.

John P. Volz, Chief Asst. Dist. Atty., New Orleans, La., Eberhard P. Deutsch, New Orleans, La., for defendant-appellant.

Edward F. Wegmann, William J. Wegmann, Richard B. Sobol, New Orleans, La., for plaintiff-appellee.

Before WISDOM, GODBOLD, and RONEY, Circuit Judges.

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WISDOM, Circuit Judge:

In this case the district court found that Jim Garrison, District Attorney for the Parish of Orleans, Louisiana, in bad faith and for purposes of harassment brought a criminal prosecution for perjury against Clay Shaw. 328 F.Supp. 390 (1971). The court found that the prosecution would cause great and irreparable injury to Shaw and enjoined the district attorney and his staff "from further prosecution of the pending criminal action". 328 F.Supp. at 404. We affirm: the findings were not clearly erroneous; they meet the "special circumstances" requirements of younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669.

The district court held also that Title 42 U.S.C. § 1983 was an express exception to the anti-injunction statute, 28 U.S.C. § 2283. The Supreme Court has now confirmed the correctness of this view. Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705, 1972.

I. The Facts

Clay Shaw was active in business and civic affairs in New Orleans and for twenty years was Managing Director of the International Trade Mart, an organization for the promotion of business and cultural activities between New Orleans and foreign countries. The prosecution for perjury grew out of the State's unsuccessful attempt to convict Shaw of conspiracy to assassinate President John F. Kennedy. The State charged that Shaw, who took the stand in his own defense, perjured himself when he denied having known either Lee Harvey Oswald or David Ferrie, the alleged co-conspirators in the assassination plot. The plaintiff relies, in part, on the fear of multiple prosecutions, that is, the first was for conspiracy to assassinate President Kennedy; the second was for perjury; a third and fourth may be in store for him. The district court agreed with the plaintiff. 1 Based on the facts showing the district attorney's relentless harassment of Shaw, the trial judge could fairly infer that Shaw ran the risk of additional prosecutions. We feel, however, that it is unnecessary to go beyond the bad faith nature of the perjury prosecution to affirm the judgment. In reaching that conclusion we cannot ignore the first prosecution; that prosecution is an inseparable part of the factual

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context within which the second prosecution should be considered. The perjury charge was based on Shaw's testimony in the conspiracy trial. Garrison's theory of the assassination and the trial itself were widely publicized. Whatever ambitions he may have had as the man who solved the Kennedy assassination crumbled to bits when the jury came in with a verdict of "not guilty".

On November 22, 1963, President John F. Kennedy was assassinated. Less than forty-eight hours later, Jack Ruby shot and killed the accused assassin, Lee Harvey Oswald. Oswald had spent the summer of 1963 in New Orleans. Learning of this, the district attorney for Orleans Parish conducted an investigation of Oswald's activities in New Orleans. As a result of this investigation, David Ferrie, allegedly an acquaintance of Oswald's, was arrested and turned over to the F.B.I. for questioning. 2 Ferrie died in February, 1967.

Not until November 1966 did Garrison resume his investigation of the Kennedy assassination. The resumption apparently was triggered by the release of the Warren Commission's report on the assassination. Garrison testified at the hearing below that "the Federal Government had not been looking into it [the assassination] honestly, and that it had been a fake investigation . . ."

Garrison first interviewed Shaw in connection with the investigation in December 1966. In his testimony in the district court Garrison offered no explanation for the initial interrogation of Shaw. On March 1, 1967, Shaw was arrested and charged with conspiracy to assassinate President Kennedy.

At the time of Shaw's arrest, according to James L. Alcock, Garrison's chief prosecuting attorney, the State's only witness against Shaw was Perry Raymond Russo. Garrison learned about Russo, and found him in Baton Rouge, Louisiana, as the result of a newspaper article in which Russo was quoted as having made several statements concerning David Ferrie. After Assistant District Attorney Sciambra interviewed Russo in Baton Rouge, Garrison had Russo brought to New Orleans where he was given sodium pentothal, subjected to hypnosis, and again interrogated. Two days later, Shaw was arrested.

On March 1, 1969, a unanimous state court jury, after fifty-five minutes of deliberation, found Shaw not guilty of the charge that he conspired to assassinate President Kennedy. The verdict culminated a forty-day trial. On March 3, 1969, the next working day, Garrison signed an information charging Shaw with the crime of perjury. The information charged that Shaw perjured himself when, in testimony at the conspiracy trial, he denied having known David Ferrie or Lee Harvey Oswald.

II. The Proceedings Below

On January 18, 1971, the date of the state court perjury trial, Shaw applied to the United States District Court for the Eastern District of Louisiana for a temporary restraining order enjoining Garrison from prosecuting the perjury charge. Shaw invoked jurisdiction under 28 U.S.C. §§ 1343(3) and 1343(4) for a cause of action based on 42 U.S.C. §§ 1983 and 1985 and "under the Constitution of the United States". Shaw alleged that he suffered and will continue to suffer "grave and irreparable injury" as the result of the state perjury prosecution brought in "bad faith" and "in furtherance of Garrison's scheme of harassment and intimidation of [Shaw]". The district court refused to issue a temporary restraining order, and Shaw applied to this Court for emergency relief. This Court ordered the district court to hold a hearing on Shaw's request for injunctive relief. Meanwhile, the state case was continued until January 20, 1971. On remand, the district

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court issued a temporary restraining order pending a hearing on the preliminary injunction set for January 25, 1971.

The hearing lasted three days. The district court received fifty-five exhibits and heard eighteen witnesses on behalf of Shaw. Garrison offered no proof. 3

III. The Ruling Below

On May 27, 1971, the district court issued a permanent injunction "restraining Jim Garrison, District Attorney for the Parish of Orleans, his assistants, employees, agents and all persons in active concert and participation with him from further prosecution of the pending criminal action entitled "'State of Louisiana v. Clay L. Shaw,' No. 208-260". 328 F.Supp. at 404. In a thoroughly considered opinion the experienced district judge made detailed findings of fact and conclusions of law. Characterizing the facts as "unique and bizarre", the court held: "[T]he perjury charge was brought in bad faith and for purposes of harassment . . . such bad faith constitutes irreparable injury which is great and immediate". 328 F.Supp. at 400. Thus, the court concluded that the "'special circumstances' requirements of Younger" 4 were met and that Shaw was entitled to relief. 328 F.Supp. at 393.

The district court based its findings of bad faith and harassment on the history of Garrison's pursuit of Shaw, including the events leading to the state conspiracy trial as well as the events incident to the state perjury prosecution. As to Garrison's prosecution of Shaw for conspiracy, the district court found bad faith and harassment on the following facts:

(1) The court found a "serious question concerning the basis for Garrison's decision" to investigate the assassination of President Kennedy.

Apparently, his jurisdiction was based on Oswald's activities in New Orleans in the summer of 1963. 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.

328 F.Supp. at 394. William A. Gurvich, an experienced investigator and Executive Director of an established detective agency in New Orleans, testified that Garrison solicited his help in conducting the investigation. He worked on this project for about six months. Gurvich testified that he resigned because he believed the investigation to be a "fraudulent, criminal act".

(2) There was no basis for Garrison's initial interrogation of Shaw. "Just how [Shaw] . . . was first selected to be interviewed by [Garrison] . . . when he was not a suspect is

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another unanswered question in this case. [Garrison] . . . offered no evidence to show any basis or cause for his office's interrogation of [Shaw] . . . concerning such a shocking crime". 328 F.Supp. at 394.

(3) The extreme measures the state resorted to in extracting information from Perry Raymond Russo and the use of his testimony at the trial were incompatible with the American System of Justice. Russo was given sodium pentothal and subjected to hypnosis to "obtain a degree of corroboration" of what Russo had allegedly related to Garrison's assistant about a conspiratorial meeting. Yet the report of Garrison's assistant, Sciambra, who interviewed Russo, made no mention of any conspiratorial meeting involving Shaw. The district court stated:

It should be borne in mind that the memorandum which...

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