Sheridan v. Garrison, Civ. A. No. 67-1147.

CourtU.S. District Court — Eastern District of Louisiana
Writing for the CourtRUBIN
Citation273 F. Supp. 673
Docket NumberCiv. A. No. 67-1147.
Decision Date28 August 1967
PartiesWalter SHERIDAN et al., Plaintiffs, v. Jim GARRISON, Indiv., et al., Defendants.

273 F. Supp. 673

Walter SHERIDAN et al., Plaintiffs,
v.
Jim GARRISON, Indiv., et al., Defendants.

Civ. A. No. 67-1147.

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

August 28, 1967.


273 F. Supp. 674
COPYRIGHT MATERIAL OMITTED
273 F. Supp. 675
Milton E. Brener, Herbert J. Miller, Gibbons Burke, Edward M. Baldwin, New Orleans, La., for plaintiffs

Numa Bertel, James Alcock, Richard Burnes, New Orleans, La., for defendants.

RUBIN, District Judge:

The plaintiffs, Walter Sheridan, a television news reporter employed by the National Broadcasting Company ("NBC"), and Richard Townley, a news reporter employed by television station WDSU-TV, New Orleans, Louisiana, seek to enjoin the District Attorney for the Parish of Orleans, State of Louisiana, and the foreman of the Grand Jury presently convened in that parish, from:

A. Enforcing or seeking to enforce a subpoena issued to Walter Sheridan on July 18, 1967, commanding him to appear before the Grand Jury;

B. Taking action to prosecute criminal proceedings which have commenced against Sheridan in Orleans Parish, Louisiana, by bill of information charging him with public bribery of Perry R. Russo, and against Townley by bills of information charging him with public bribery of Perry R. Russo, threatening Marlene Mancusso, a witness in the case of State v. Novel and threatening Perry R. Russo, a witness in the case of State v. Shaw; and

C. Taking any steps or further efforts whatever to harass, intimidate, and deter plaintiffs in the exercise of their constitutionally protected rights, privileges, and immunities.

The plaintiffs contend that the defendants have taken or may take steps to violate their rights under the Constitution of the United States, as set forth in the Fourteenth Amendment. This Amendment, of course, provides a guarantee of due process of law, and assures federal protection against state action to the rights protected against federal action by the First, Fifth, and Sixth Amendments to the Constitution of the United States. The plaintiffs also invoke the Civil Rights Act of 18711 and 28 U.S.C. § 1343,2 the pertinent provisions of which are set forth in the footnotes.

The background leading to this action is well-known. The District Attorney of Orleans Parish has commenced an investigation of an alleged plot to assassinate the late President John F. Kennedy. This investigation has been a matter of

273 F. Supp. 676
great public interest. The plaintiffs have participated in television broadcasts dealing with events that have occurred during the course of the investigation and actions taken by the District Attorney's office

On July 7, 1967, the District Attorney filed a bill of information against Sheridan charging him with public bribery of Perry R. Russo. On July 11, 1967, three bills of information were filed against Townley charging him with (1) public bribery of Perry R. Russo, (2) threatening Marlene Mancusso, a witness in the case of State v. Novel, and (3) threatening Perry R. Russo, a witness in the case of State v. Shaw. On July 18, 1967, a subpoena was issued ordering Sheridan to appear before the Orleans Parish Grand Jury.

The plaintiffs claim that the District Attorney harbors malice and personal animosity against them motivated by their free exercise of their rights of free speech and free press, that he has sought to harass and intimidate them and to prevent their free exercise of their constitutional rights by a series of actions including a plan to arrest them on a spurious charge, and a plan to handcuff and physically beat them. They contend that the District Attorney has repeatedly stated that he intends to "get" Sheridan, that the charges against both Sheridan and Townley are "totally lacking in substance," and "were filed not for legitimate purposes of good faith prosecution but rather in furtherance of the * * * scheme of harassment and intimidation of the plaintiffs," that the criminal charge against Sheridan and two of the charges against Townley are based on the testimony of a person with respect to whom the District Attorney has withheld and suppressed evidence that is destructive of his credibility. Sheridan alleges that he has attempted to obtain relief in Louisiana courts from the enforcement of the grand jury subpoena, without avail, but apparently no other effort to obtain relief in state courts has been made.

The plaintiffs have filed a motion for summary judgment that they are entitled to the injunction preventing enforcement of the subpoena against Sheridan. The defendants have filed a motion for summary judgment asking that the complaint be dismissed. There is of course a substantial dispute between the parties as to virtually all of the allegations of the plaintiffs' complaint. But those facts which are controlling with respect to the determination of the merits of the motions for summary judgment on these two issues are not in dispute, and a summary judgment on them is therefore proper.3

SUBPOENA AGAINST SHERIDAN

Some of the facts here are simple and undisputed. Eleven days after Sheridan was charged with public bribery of Perry R. Russo, the Orleans Parish Grand Jury issued a subpoena, commanding Sheridan to appear before it. On August 9, 1967, Sheridan was ordered to show cause why he should not be held in contempt for failure to appear.

The grand jury originated centuries ago in England. It was originally both an investigating body, with the responsibility for originating charges, and a deliberating body, with the responsibility for determining the guilt or innocence of the accused, but before the settlement of the English colonies in America it had lost its function in the trial of persons charged with crimes and had become only an investigatory and accusatory body.4 In this capacity, it provides a means of protecting the public against unfounded

273 F. Supp. 677
accusation and of bringing to trial persons charged with crimes.5

The Louisiana Constitution provides for a grand jury composed of twelve persons, nine of whom constitute a quorum.6 As it is at common law, the grand jury in this state is an informing and accusing body.7 Although charges for other offenses may be originated by the District Attorney by information only,8 the Louisiana Constitution provides that "no person shall be held to answer for capital crime, unless on presentment or indictment by a grand jury."9 The grand jury's inquisitorial power is not limited to crimes brought to its attention by the district attorney, however, and it may "inquire into other offenses triable by the district court of the parish."10

Louisiana courts issue a subpoena for a witness to appear before the grand jury upon request either of the grand jury or the district attorney.11 A witness who is to testify is first put on oath by the foreman.12 Only certain persons may be present at sessions of the grand jury: the members of the grand jury, the district attorney and his assistants, the witness under examination, the reporter, and, when needed, an interpreter.13 Any other person who is intentionally present is in constructive contempt of court.14

It necessarily follows from the Louisiana statutes that a person summoned to testify as a witness before a grand jury may not have counsel present. Neither may he refuse to testify at all,15 although he may refuse to answer specific questions on the grounds that the answers to those questions might tend to incriminate him.16

The Sixth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment,17 guarantees the accused the "Assistance of Counsel." Three years ago, the United States Supreme Court

273 F. Supp. 678
held in Escobedo v. State of Illinois18 that the right to counsel includes the right of a person who is accused of committing a crime to consult with his lawyer during the course of an interrogation conducted before he is formally charged. "Every person accused of a crime, whether state or federal, is entitled to a lawyer at trial."19 The right to counsel at the formal trial would be "a very hollow thing if for all practical purposes, the conviction is already assured" by the interrogation of the accused.20

Escobedo holds that where an investigation "is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has * * * an absolute constitutional right to remain silent." He must not only be granted this right: he must be expressly advised of it. Here Sheridan is not only the focus of suspicion: he is formally charged with the crime of public bribery. Under Escobedo, the law enforcement officers of the State have a duty to advise him that he has an absolute constitutional right to remain silent in any police interrogation.

The rights declared in Escobedo were affirmed in Miranda v. State of Arizona21 where the Supreme Court focused on the Fifth Amendment's privilege against self-incrimination in addition to the right to the assistance of counsel covered by the Sixth Amendment.22 The Court there called attention to the fact, obvious on the face of the Bill of Rights and the Fourteenth Amendment, that by its very nature the Constitution imposes restraints on our government in dealing with persons charged with crime. If the Bill of Rights afforded the citizen no protection against governmental action, it would be no Bill of Rights. The Court there concluded in unequivocal terms that the constitutional rights set forth in the Fifth and Sixth Amendments require that, after a person is taken into custody (and even before he is charged with a crime), "the person must be warned that he has a right to remain silent * * * and that he has a right to the presence of an attorney * * *." If the defendant "indicates in any manner and at any...

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17 practice notes
  • Google, Inc. v. Hood, No. 15–60205.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 18, 2016
    ...in dicta that all of the Supreme Court's Younger cases involved “some type of formal complaint or charges”).9 Cf. Sheridan v. Garrison, 273 F.Supp. 673, 675–85 (E.D.La.1967) (Rubin, J.) (enjoining enforcement of subpoena where plaintiff had been formally charged with an offense, had made “e......
  • United States v. Mandujano, No. 74-754
    • United States
    • United States Supreme Court
    • May 19, 1976
    ...Harv.L.Rev. 143, 222 (1964); Note, 1967 Duke L.J., Supra, n. 13; Recent Developments, supra, n. 19. 21. See also Sheridan v. Garrison, 273 F.Supp. 673, 679 (ED La. 1967), rev'd on other grounds, 415 F.2d 699 (CA5 1969); Boudin, Supra, n. 13, at 17; Friendly, The Fifth Amendment Tomorrow: Th......
  • Com. v. Columbia Inv. Corp.
    • United States
    • United States State Supreme Court of Pennsylvania
    • September 5, 1974
    ...608 (1973). See United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). 8 Appellees' reliance on Sheridan v. Garrison, 273 F.Supp. 673 (E.D.La.1967), rev'd on other grounds, 415 F.2d 699 (5th Cir. 1969), cert. denied, 396 U.S. 1040, 90 S.Ct. 685, 24 L.Ed.2d 685 (1970), is mi......
  • Drexler v. Walters, No. 4-67 Civ. 390.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • September 23, 1968
    ...cert. denied 351 U.S. 955, 76 S.Ct. 852, 100 L.Ed. 1478 (1956); Mackay v. Nesbett, 285 F.Supp. 498 (D.Alas.1968); Sheridan v. Garrison, 273 F.Supp. 673 (E.D.La.1967); Sarisohn v. Appellate Division, Second Department, Supreme Court of New York, 265 F.Supp. 455 (S.D.N.Y.1967); Brock v. Schir......
  • Request a trial to view additional results
17 cases
  • Google, Inc. v. Hood, No. 15–60205.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 18, 2016
    ...in dicta that all of the Supreme Court's Younger cases involved “some type of formal complaint or charges”).9 Cf. Sheridan v. Garrison, 273 F.Supp. 673, 675–85 (E.D.La.1967) (Rubin, J.) (enjoining enforcement of subpoena where plaintiff had been formally charged with an offense, had made “e......
  • United States v. Mandujano, No. 74-754
    • United States
    • United States Supreme Court
    • May 19, 1976
    ...Harv.L.Rev. 143, 222 (1964); Note, 1967 Duke L.J., Supra, n. 13; Recent Developments, supra, n. 19. 21. See also Sheridan v. Garrison, 273 F.Supp. 673, 679 (ED La. 1967), rev'd on other grounds, 415 F.2d 699 (CA5 1969); Boudin, Supra, n. 13, at 17; Friendly, The Fifth Amendment Tomorrow: Th......
  • Com. v. Columbia Inv. Corp.
    • United States
    • United States State Supreme Court of Pennsylvania
    • September 5, 1974
    ...608 (1973). See United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). 8 Appellees' reliance on Sheridan v. Garrison, 273 F.Supp. 673 (E.D.La.1967), rev'd on other grounds, 415 F.2d 699 (5th Cir. 1969), cert. denied, 396 U.S. 1040, 90 S.Ct. 685, 24 L.Ed.2d 685 (1970), is mi......
  • Drexler v. Walters, No. 4-67 Civ. 390.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • September 23, 1968
    ...cert. denied 351 U.S. 955, 76 S.Ct. 852, 100 L.Ed. 1478 (1956); Mackay v. Nesbett, 285 F.Supp. 498 (D.Alas.1968); Sheridan v. Garrison, 273 F.Supp. 673 (E.D.La.1967); Sarisohn v. Appellate Division, Second Department, Supreme Court of New York, 265 F.Supp. 455 (S.D.N.Y.1967); Brock v. Schir......
  • Request a trial to view additional results

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