United States v. Garrison

• Decision Date: 07 April 1972
• Docket Number: Crim. No. 71-542.
• Citation: 340 F. Supp. 952
• Parties: UNITED STATES of America v. Jim GARRISON, et al.
• Court: U.S. District Court — Eastern District of Louisiana

340 F. Supp. 952

UNITED STATES of America v. Jim GARRISON, et al.

Crim. No. 71-542.

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

April 7, 1972.

Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., for plaintiff.

Louis B. Merhige, New Orleans, La., for defendant (movant).

CHRISTENBERRY, District Judge

The subject of this memorandum opinion is a pretrial motion filed by defendant Jim Garrison asking that I recuse myself from sitting on the instant case on the grounds of bias or prejudice. The issue to be resolved is whether recusation is appropriate when the alleged basis for the bias or prejudice is (1) a prior adjudication adverse to defendant Garrison in his official capacity as District Attorney for the Parish of Orleans, State of Louisiana, and (2) a subsequent public denunciation by the defendant of the federal judiciary and this court's decision. For the reasons hereafter assigned, I find that the allegations made by defendant Garrison in his affidavit, taken as the truth, are legally insufficient for recusation and, accordingly, the motion must be denied.

BACKGROUND

A background sketch of this case will be helpful. On June 30, 1971, Mr. Garrison was arrested and charged by federal agents with the violation of various federal statutes.¹ On the same day he was released on bail and at present he is on bail awaiting trial. Following his arrest, defendant Garrison waived his right to a preliminary examination on July 8, 1971, and, subsequently, on August 2, 1971, a special federal grand jury began investigating the charges for which the defendant was arrested.

On December 3, 1971, the grand jury, sitting in the Eastern District of Louisiana at New Orleans, returned a true bill indicting Jim Garrison and nine other persons "for conspiracy to obstruct state or local law enforcement." As part of the conspiracy it was alleged that defendant Garrison "would receive protection bribe monies contributed by the defendants who would operate the illegal gambling businesses, to permit these businesses to operate free of any substantial law enforcement interference." (Indictment, paragraph D(1).) As a further part of the alleged conspiracy the indictment states in paragraph D(7) that:

"Pershing Gervais, a former New Orleans Police Officer and former Chief Investigator for the Orleans Parish District Attorney's Office, would receive the protection bribe monies from the principals of the illegal gambling businesses and deliver it to the District Attorney Jim Garrison."

Thirty-five overt acts are then alleged as having been committed in furtherance of the charged conspiracy. Defendant Garrison's name appears in eleven of these alleged overt acts (paragraphs E(7), (17), (20), (23), (24), (26), (28), (29), (31), (32), and (33)) in a context which alleges specific instances in which he was supposedly a part of a large conspiracy. All defendants in the indictment are accused of violating Title 18 U.S.C.A. § 1511 (Supp.1972), which was a part of the Organized Crime Control Act of 1970 (P.L. 91-452), 84 Stat. 922. This statute, subject to certain limitations, makes it unlawful to engage in a conspiracy to obstruct the enforcement of state law with the intent to facilitate an illegal gambling business. Of course, at this time the court expresses no opinion as to the constitutionality of the statute except to note the presumption of validity that attaches to all legislative enactments.

On the same day as the indictment was returned, December 3, 1971, the case was allotted to the Honorable Lansing L. Mitchell of Section "F" of this court. Judge Mitchell thereupon recused himself because "this case is one which involves parties with whom the Judge of Section `F' was formerly associated in the practice of law ...." On reallotment the case fell to this section of the court. Subsequently, on December 15, 1971, the defendant was arraigned before me at which time he entered a plea of not guilty and was given 60 days within which to file special pleadings. On February 14, 1972, defendant Garrison filed several timely in limine motions, one of which seeks recusation of the court.

AFFIANT'S BASIS FOR RECUSAL MOTION

In accordance with the requirements of Title 28 U.S.C. § 144 (1970),² the instant motion was accompanied by defendant Garrison's affidavit with allegations to support the motion and a certificate of his local counsel, Louis B. Merhige, stating that the defendant's affidavit was made in good faith. Because it is the focal point of this opinion, the affidavit is set forth in full (except for exhibits):

"Jim Garrison, being first duly sworn, deposes and states as follows:

"This affidavit is presented pursuant to Title 28 U.S.C., Section 144, in order to require that the judge before whom this matter is pending proceed no further, but shall assign this matter to another judge. The reason for this being that the judge to whom this matter has been assigned has a personal bias or prejudice against your affiant. This bias is derived from the following facts:

"In the latter part of 1966, my office received information which convinced me that a conspiracy to kill President John F. Kennedy was formulated in Orleans Parish. With this information in hand, I felt duty bound to conduct an investigation. As a result of this investigation, I ordered the arrest of Clay L. Shaw, for conspiracy, with others, to kill President Kennedy.

"Because of the seriousness of the charge, I asked that a preliminary hearing be held in the case. This hearing resulted in all three State judges unanimously finding probable cause to bind the defendant over for trial. Still mindful of the awesome gravity of the charge, I presented the state's evidence to the Orleans Parish grand jury. After hearing the evidence, the grand jury returned an indictment against Shaw. This indictment, after much delay occasioned by defense pleadings, was finally tried. On March 1, 1969, the petit jury acquitted the defendant.

"A review of the testimony in the case convinced me that Shaw had committed perjury. Consequently, a bill of information was filed against him for violating the state's perjury statute. As in the conspiracy case, the defendant sought refuge in the federal court. Shaw sought an injunction preventing the state from proceeding with its perjury case, citing claimed prosecutorial bad faith as his grounds for relief.

"An evidentiary hearing was held on his complaint by this honorable court. I, members of my staff and certain state and defense witnesses on the conspiracy trial were heard. On May 27, 1971, the court rendered its decision granting the relief sought. In the course of its opinion, a copy of which is attached hereto as exhibit `A' and made a part of this affidavit, the court launched a personal attack upon me. The opinion stated that I wrongfully used certain esoteric methods to `implant' an otherwise untrue story in the mind of a state witness, that our prosecution was conducted in bad faith and that my sole interest in the case was financial. These conclusions, in my judgment, were totally unsupported by any evidence adduced at the hearing nor were they supportable by any form of objective reasoning.

"Feeling strongly in the matter, I caused to be issued a press release denouncing your honor's findings. A copy of this press release is annexed hereto as exhibit `B' and made a part of this affidavit.

"Given the personal character of the court's remarks in its opinion and my equally personal remarks in my press release, it is submitted that this court cannot sit in fair judgment of me. The bias of the court, conscious or otherwise, is patent.

"/s/ Jim Garrison" The case alluded to by Mr. Garrison, the affiant, is Shaw v. Garrison, 328 F. Supp. 390 (E.D.La.1971), appeal docketed, No. 71-2422, 5th Cir., July 30, 1971. As defendant states, it is this decision, rendered in the normal course of the performance of this court's judicial duties, that forms his first basis for recusal. As a second ground, Mr. Garrison asks that I recuse myself because he "issued a press release denouncing my findings."

Defendant Garrison's press release, which he candidly admits to having authored, represents certainly an unusual statement for an attorney to have transmitted to the media. Attorneys traditionally, occasionally pursuant to a judicial admonition, try their law suits in courts of law and not the market place. To do otherwise can be a serious reflection on a counselor's sense of propriety and, of course, can result in a finding of contempt of court. In this instance, however, nothing has transpired which would affect this court's ability to accord all litigants a fair and impartial trial. Were there any reason, apparent or otherwise, why this court could not feel assured that justice would be applied evenhandedly, then on its own volition the court would recuse itself. Affiant's contention reduces itself to the proposition that he can avoid being tried before any particular judge if he has publicly voiced disapproval of that judge or that judge's work. All the more so, affiant contends, if that judge has previously decided a case adverse to the defendant. That simply is not the law and the idea of it is counter to this court's policy against allowing a defendant to select the judge who will preside over his trial. The policy rather is that all cases should be allotted on a random basis. It should never be of any moment to a judge as to whether or not he sits on a particular case. "The court is not a party. There is nothing that affects the judges in their own persons. Their concern is only that the law should be obeyed and enforced, and their interest is no other than that they represent in every case." United States v. Shipp, 203 U.S. 563, 574, 27 S.Ct. 165, 167, 51 L.Ed. 319, 324 (1906) (Holmes, J.). Similarly, a litigant's case must stand on its own merits and not depend on being heard by any particular judge.

THE APPLICABLE LAW...