Clay L. Shaw v. Jim Garrison
The Christenberry Decision
Judge Herbert Christenberry and Jim Garrison
Clay L. SHAW v. Jim GARRISON, individually and as District Attorney for the Parish of Orleans, State of Louisiana
Civ. A. No. 71-135
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA, NEW ORLEANS DIVISION
328 F. Supp. 390; 1971 U.S. Dist. LEXIS 13079
May 27, 1971
JUDGES: [**1]
Christenberry, District Judge.
OPINION BY: CHRISTENBERRY
OPINION: [*391] CHRISTENBERRY, District Judge.
Clay L. Shaw, plaintiff, has filed a complaint seeking to enjoin and restrain defendant, Jim Garrison, District Attorney for the Parish of Orleans, State of Louisiana, and members of his staff, from further prosecution of a pending [*392] state criminal case entitled "State of Louisiana vs. Clay L. Shaw," No. 208-260, Section "A" of the Criminal District Court of the Parish of Orleans, State of Louisiana. Shaw also seeks to restrain the defendant and his assistants from filing and prosecuting any additional criminal charges arising out of or incidental to the allegations of his complaint. In his complaint plaintiff charges that Garrison conspired with Willard E. Robertson, Joseph M. Rault, Jr. and Cecil M. Shilstone, members of an organization known as Truth or Consequences to deprive him of his constitutional rights.
Plaintiff invokes the jurisdiction of this court pursuant to Title 28 U.S.C. 1343(3)(4) and Title 42 U.S.C. 1983 and 1985 as well as under the Constitution of the United States. He alleges that he has suffered and will suffer irreparable injury due to [**2] the defendant's continuing misuse and abuse of the prosecutorial powers vested in defendant by virtue of his office as District Attorney for the Parish of Orleans. Plaintiff contends that Garrison has continued to use in bad faith the state's legal machinery in the prosecution of innocent citizens, such as plaintiff, with no hope of success in obtaining a conviction.
On January 18, 1971, the trial date of the state case, the plaintiff applied to this court for a temporary restraining order. This court denied the application because of the imminence of the trial and the ex parte nature of the temporary restraining order. The attorneys for the plaintiff then applied to the United States Court of Appeals for the Fifth Circuit for emergency relief. After a conference with this court a panel of judges of the Fifth Circuit Court of Appeals entered an order directing this court to hold a hearing on the plaintiff's application for injunctive relief. The state case, meanwhile, was continued to January 20th. Upon remand, and after a conference with counsel for both parties present, this court entered a temporary restraining order enjoining the defendant from taking any further action [**3] in the prosecution of the state case, pending a hearing on the preliminary injunction which was set for January 25th.
At the hearing, which took three days, numerous witnesses were heard and fifty-five exhibits were offered and filed into evidence by the plaintiff. Both sides were given time to file and have filed briefs.
The facts that give rise to this proceeding result from the defendant Garrison's investigation of the assassination of President John F. Kennedy. To characterize these facts as unique and bizarre is no exaggeration. The plaintiff Shaw has been tried and acquitted on the heinous charge that he conspired to assassinate President Kennedy. Subsequent to his acquittal, the defendant Garrison immediately, and without any witnesses other than those he used at the trial, charged Shaw with perjury. It is this pending state proceeding that the plaintiff seeks to enjoin. Garrison contends that during the course of the conspiracy trial, Shaw, who took the stand in his own defense, perjured himself when he denied having known either David Ferrie or Lee Harvey Oswald, with whom he was alleged to have conspired to assassinate the President.
At the outset, it is to be noted [**4] that this court has had the benefit of the most recent expressions of the United States Supreme Court dealing with federal intervention in pending state criminal prosecutions: Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 (1971); Boyle v. Landry, 401 U.S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 696 (1971); Byrne v. Karalexis, 401 U.S. 216, 91 S. Ct. 777, 27 L. Ed. 2d 792 (1971); Perez v. Ledesma, 401 U.S. 82, 91 S. Ct. 674, 27 L. Ed. 2d 701 (1971). These cases reaffirm "the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances." Younger v. Harris, 401 U.S. at 41, 91 S. Ct. at 749. This court must determine whether the facts of this case fall within the ambit of the "special circumstances" exception expressed in [*393] Younger. Discussing the nature of these circumstances the Court in Younger stated: "In all of these cases the Court stressed the importance of showing irreparable injury, the traditional prerequisite to obtaining an injunction. In addition, however, the Court also made clear that in view of the fundamental [**5] policy against federal interference with state criminal prosecutions, even irreparable injury is insufficient unless it is 'both great and immediate.' Fenner, supra [Fenner v. Boykin, 271 U.S. 240, 46 S. Ct. 492, 70 L. Ed. 927 (1926)]. Certain types of injury, in particular, the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered 'irreparable' in the special legal sense of that term. Instead, the threat to the plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution. See, e.g., Ex parte Young, supra, 209 U.S. [123] at 145-147, 28 S. Ct. [441] at 447-449 [52 L. Ed. 714]." 401 U.S. at 46, 91 S. Ct. at 751 (Emphasis supplied). Further, in denying injunctive relief to Harris the Court stated: "It is against the background of these principles that we must judge the propriety of an injunction under the circumstances of the present case. Here a proceeding was already pending in the state court, affording Harris an opportunity to raise his constitutional claims. There is no suggestion that this single prosecution [**6] against Harris is brought in bad faith or is only one of a series of repeated prosecutions to which he will be subjected. In other words, the injury that Harris faces is solely 'that incidental to every criminal proceeding brought lawfully and in good faith,' Douglas [Douglas v. City of Jeannette, 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324 (1943)], and therefore under the settled doctrine we have already described he is not entitled to equitable relief 'even if such statutes are unconstitutional,' Buck [Watson v. Buck, 313 U.S. 387, 61 S. Ct. 962, 85 L. Ed. 1416 (1941)]." 91 S. Ct. at 753, 401 U.S. at 49 (Emphasis supplied). Shaw in his complaint alleges that the pending state prosecution has been instituted by Garrison in bad faith and for the purpose of harassment. He contends that this state proceeding is the second of a series of multiple prosecutions to which he has been and will be subjected. These allegations clearly state a basis for injunctive relief, if proven. See Buie v. Pigott, 439 F.2d 153 (5th CCA 1971). They meet the "special circumstances" requirements of Younger. The question is whether the facts as adduced at the hearing support the allegations. [**7] To resolve this question a review of those facts is necessary
On November 22, 1963, President John F. Kennedy was assassinated in Dallas, Texas. Immediately thereafter, Lee Harvey Oswald was accused of committing the crime. Unfortunately, less than forty-eight hours after the President's death, Oswald was slain. The defendant Garrison testified that his office first participated in an investigation of the President's assassination when it learned that Oswald had spent the prior summer in New Orleans. A short investigation by his office resulted in the arrest of David Ferrie who was turned over to the Federal Bureau of Investigation for questioning. (1) n1 It was not until several years later, in November of 1966, that the defendant decided that further investigation by him was necessary. This decision came after an extensive investigation by a commission, the Warren Commission, created on November 29, 1963 pursuant to Executive Order No. 11130 by President Lyndon B. Johnson "to ascertain, [*394] 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." The [**8] testimony of approximately 550 witnesses before the Commission and more than 3100 exhibits received into evidence make up the contents of 26 bound volumes. However, despite this exhaustive probe, Garrison, according to his testimony, concluded that "the Federal Government had not been looking into it honestly, and that it had been a fake investigation * * *" so in November, 1966, he decided that his office would undertake what he termed "a serious investigation."
At this point, a serious question concerning the basis for Garrison's decision arises. Apparently, his jurisdiction was based on Oswald's activities in New Orleans in the summer of 1963. n2 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 [**9] with the findings of the Warren Commission and Oswald had spent some time in New Orleans The defendant did not testify as to what evidentiary basis led him to believe that further investigation of the assassination of the President was needed.
The testimony of William A. Gurvich corroborated the defendant's statement that the assassination investigation began in the latter part of 1966. Gurvich, an experienced investigator whom this court believed, testified that Garrison solicited his help to conduct the investigation on or about December 23, 1966. Gurvich subsequently accepted and participated in the probe until June 27, 1967 when he resigned. He stated that he resigned because he believed the investigation was a "fraudulent, criminal act."
According to Garrison, Shaw was first interviewed in his office in December, 1966. Garrison testified that at that time Shaw was not considered a suspect by the defendant and was not advised of his constitutional rights, [**10] nor was he told of his right to counsel. Just how the plaintiff was first selected to be interviewed by the defendant when he was not a suspect is another unanswered question in this case. The defendant offered no evidence to show any basis or cause for his office's interrogation of the plaintiff concerning such a shocking crime. His failure to offer any explanation leaves this court with but one conclusion, namely, that there was no factual basis for questioning Shaw concerning the assassination. This conclusion is supported by further facts that are discussed hereafter.
On March 1, 1967, plaintiff was arrested by the defendant and charged with "participating in a conspiracy to murder John F. Kennedy." Two events prior to his arrest are of significance. One is the emergence of a witness named Perry Raymond Russo. The other is the formation of a group which called itself "Truth or Consequences."
Perry Raymond Russo
On February 20, 1967, David Ferrie, the defendant Garrison's link between Oswald and a supposed New Orleans based conspiracy to assassinate the President, died. Shortly thereafter Andrew J. Sciambra, an assistant district attorney in the defendant's office, [**11] went to Baton Rouge to interview Perry Raymond Russo, as a result of a newspaper article in which Russo made several statements concerning Ferrie. Sciambra testified this was on or about February 25, 1967, four days prior to the date of the plaintiff's arrest. Garrison testified this was the first time his office became aware of Russo. Sciambra wrote two memoranda of the Baton Rouge meeting with Russo, one of which was introduced into evidence. In the memorandum filed into evidence, no mention is made of any conspiratorial meeting to assassinate the President. The [*395] following Monday, February 27th, two days before Shaw's arrest, Russo came to New Orleans. At the instruction of the defendant, he was subjected to Sodium Pentothal by the late Dr. Nicholas Chetta, who was the Coroner for the Parish of Orleans, and hypnosis by Dr. Esmond Fatter. The defendant stated the purpose of these strange procedures was "to obtain a degree of corroboration" of what Russo had related to Sciambra in Baton Rouge of a New Orleans conspiratorial meeting between the plaintiff, Ferrie and Oswald. It should be borne in mind that the memorandum which Sciambra wrote on his return from Baton [**12] Rouge did not mention any such meeting. However, substantial doubts are raised regarding the validity and objectivity of the state's case when a prosecuting attorney resorts to the use of such extraordinary tactics as were employed by Garrison on Russo. A fair inference to be drawn is that these ex parte procedures were used to implant into Russo's mind a story implicating the plaintiff in an alleged conspiracy plot. This could have been accomplished by post-hypnotic suggestion. This inference is supported by the fact that Garrison immediately moved to arrest and charge Shaw based solely on Russo's questionable, vague story. Such hasty action on the part of the defendant without further investigation and without submitting the matter, at that time, to the grand jury demonstrates ulterior motives.
Judge James L. Alcock, who was on the defendant's staff, and was the chief prosecuting attorney at the Shaw conspiracy trial, testified that the only witness against Shaw at the time of his arrest was Russo. Garrison did not rebut this testimony, even when this court confronted him with it. He refused to answer the question when it was propounded to him by plaintiff's counsel and [**13] this court.
This is a very pertinent point in this case. The burden of proof is, of course, upon the plaintiff Shaw to prove by a preponderance of the evidence the existence of exceptional and unusual circumstances that would justify this court's intervention. Younger v. Harris, supra. When the plaintiff's evidence constitutes a prima facie case, the burden is on the defendant of going forward with any evidence to rebut the plaintiff's case. Cf. Bush v. Kaim, 297 F. Supp. 151, 161 (N.D. Ohio 1969); Mann v. Davis, 213 F. Supp. 577, 584 (E.D. Va. 1962), aff'd, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609 (1964). In this case the defendant Garrison offered no proof, apparently relying on the supposed inability of Shaw to sustain his burden and that even if Shaw did, he would not be entitled to any relief by this court. In those instances where the plaintiff proved certain facts by a preponderance of the credible evidence, and the defendant failed to rebut those facts either on cross-examination or by offering contrary evidence, this court has accepted those facts as true.
The lack of substance of Russo's story is emphasized by several events which occurred subsequent to [**14] Shaw's arrest. At Shaw's conspiracy trial, Russo's testimony differed materially from that which he gave at a preliminary hearing prior to the trial. The most salient change in his testimony was his inability at the trial to identify the plaintiff as having been present at an alleged conspiratorial meeting in New Orleans. At the preliminary hearing he stated unequivocally that the plaintiff Shaw was present. This change was no surprise to Garrison as he had been told previously by Lieutenant Edward A. O'Donnell of the New Orleans Police Department that Russo could not identify Shaw as having been a participant in an alleged conspiratorial meeting.
Lt. O'Donnell has been a member of the New Orleans Police Department for 19 years. He impressed this court with the candor with which he testified. In 1967, he was the department's polygrapher and in June, 1967, at Garrison's request, he attempted to give Russo a lie detector test. It was not successful. However, O'Donnell stated he took the [*396] machine's attachment from Russo's body and continued on with the interview. According to O'Donnell, Russo told him that he did not know if Shaw was at David Ferrie's apartment the [**15] night of the alleged meeting to plot the assassination. Russo stated that if he were pressed for an answer, he would have to say that Shaw was not present. He further stated to O'Donnell that "he was under a great deal of pressure and that he was sorry he ever got involved in this mess." O'Donnell testified that he gave Garrison both an oral and written account of his interview with Russo. The written report was filed into evidence in this case by the plaintiff. O'Donnell said Garrison became enraged when he made his report and insinuated that O'Donnell had "sold out to the press or * * * to someone." Garrison stated in his testimony that he questioned the veracity of O'Donnell's report. Yet this witness was subject to cross-examination at the hearing and nothing was adduced to shake his testimony or impeach his credibility. Moreover, it is significant that O'Donnell presently conducts polygraph tests for the defendant's office, which tests are used and acted on by members of the defendant's staff.
The defendant Garrison did not make available to the plaintiff's counsel the report of Lt. O'Donnell. Instead, he withheld it despite the fact that its subject matter pertained directly [**16] to statements that were pertinent to the credibility of Russo, the only witness upon whose story Shaw had been arrested.
The defendant testified that in 1967 he believed Russo's story that the plaintiff was present at the alleged conspiratorial meeting and that he still believes this story. Apparently, Russo himself does not share this belief. After having testified previously both at a preliminary hearing and at the conspiracy trial in state court, Russo, at the hearing in this court, invoked the protection afforded by the Fifth Amendment to the United States Constitution, and refused to testify when asked the precise question he had previously answered in the state proceedings. Normally no inference can be drawn when one invokes a right secured to him by the Constitution. However, in the circumstances of this case this court believes that it can and it does draw the narrow inference from Russo's action, that even today, he at least has substantial doubts as to the truthfulness of the testimony he gave in state court.
It would appear that the unusual nature of Russo's story combined with the fact that Russo had come to Garrison's attention as the result of Russo's public statements [**17] to the press, should have created some skepticism on the part of the defendant, if he had been acting in good faith. Instead, he chose to ignore the absence from Sciambra's memorandum of mention of the alleged meeting. He resorted to the use of drugs and hypnosis on Russo, purportedly to "corroborate," but more likely to concoct his story. Garrison moved with unexplained haste to arrest and charge Shaw based solely on that story. When Lt. O'Donnell reported to him, Garrison ignored and suppressed the contents of that report which were unfavorable to his case against Shaw. All these actions considered with the subsequent doubtfulness on the part of Russo as a witness show clearly that the defendant Garrison did not act in good faith regarding Russo's story. Garrison was aware of Russo's unreliability from Sciambra's first interview. Yet he arrested, charged, and prosecuted Shaw once and now has again charged him for an offense stemming from Russo's story. Garrison's use of Russo is but one of several factors that reveal his mala fides in this case. "Truth or Consequences" is another.
2. The defendant states this basis in his book.