Clay Shaw Gets His Footnote




"[When questioned by the DA's office on December 23, 1966] I explained to [Assistant DA Andrew] Sciambra that I had not at any time had an opportunity to see Oswald [the day he passed out leaflets in front of the International Trade Mart], and had never met him under any other circumstances and added what turned out to be a very ironic remark --- that it was perhaps unfortunate that I did not because then I might possibly have had a tiny footnote in history."

                         -- Clay Shaw, journal entry, March 1, 1967


United States Court of Appeals, Fifth Circuit., No. 92-2762.
Benton MUSSLEWHITE, and all others similarly situated, Plaintiff-Appellant, v. The STATE BAR OF TEXAS, et al., Defendants-Appellees.

Sept. 23, 1994.

. . . Musslewhite contends that the State Bar's entire prosecution was taken in bad faith and for the purpose of harassing him. Although he makes strong and serious allegations, our consideration of these contentions would require a collateral examination of the state court judgment. That we cannot do.

Musslewhite urges that we recognize an exception to the Feldman doctrine for an allegation that the prosecution was taken in bad faith. In Younger v. Harris(18), the Supreme Court established a policy whereby federal intervention in ongoing state criminal proceedings is barred absent extraordinary circumstances. Subsequent decisions teach us that a state prosecution taken in bad faith or for the purposes of harassment constitutes such extraordinary circumstances and federal intervention is justified.(19) This bad faith exception to the Younger doctrine has two recognized applications in our Circuit: First, where the state prosecution is taken for the purpose of deterring constitutionally protected conduct(20) and, second, where the prosecution is motivated by a design to harass the defendant.(21)


The footnote reads:


21. See Shaw v. Garrison, 467 F.2d 113, 119-21 (5th Cir.), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972), aff'g, 328 F.Supp. 390, 393-400 (1971). In Shaw, we detailed then District Attorney Jim Garrison's harassing prosecution of Clay Shaw and the bad faith tactics Garrison employed in his zealous investigation of the assassination of President John F. Kennedy. Shaw represents perhaps the paradigm in this Circuit of impermissible prosecutorial motives. Garrison used his prosecution of Shaw as a means of procuring public support--financial and otherwise--of his larger investigation into the assassination of the President. See Shaw v. Garrison, 328 F.Supp. at 393-400.


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