David Chandler v. Jim Garrison (Part Two)
Subject: Chandler v. Garrison (Part Two)
Date: 19 Aug 1999 00:00:00 GMT
Message-ID: <7phdoo$5lf$1@nnrp1.deja.com>
In the recent case of Sheridan v. Garrison, E.D.La., 1967, 273 F. Supp. 673, Judge Rubin of this Court granted an injunction against the New Orleans District Attorney Garrison and the foreman of the Orleans Parish, Louisiana, Grand Jury against a subpoena requiring plaintiff's appearance before the Grand Jury. In its opinion, the Court said (273 F. Supp. at 683): "* * * federal courts, [**25] even prior to the Escobedo decision, expressed concern about the propriety of the District Attorney's calling before a grand jury as a witness a person who was the subject of an investigation but had not yet been charged formally with an offense. * * * The decisions in the Escobedo and Miranda cases announce in forceful terms the right of a person charged with a crime to the presence of his counsel at any time that he is questioned and his right to speak or to remain silent at any time that he is questioned."
The Court also said (273 F. Supp. at 678): "* * * the mandate of these decisions [i.e. Escobedo and Miranda] is clear: the person charged with a crime [*199] has the right to choose either to speak or not to speak, and, if he elects to remain silent, he cannot be compelled to speak, nor can his refusal be later considered against him. If, as set forth in Escobedo, a person accused of a crime must be advised of an absolute constitutional right to remain silent in any police investigation, there is all the more reason why he should have an absolute right not to testify under oath before a grand jury in the absence of his lawyer."
There is good reason to [**26] believe that since Escobedo and Miranda, a Grand Jury witness, who is a potential defendant, may have the right to the presence of counsel before the Grand Jury to assist him in the protection of his constitutional rights, especially those guaranteed by the Fifth Amendment. See Meshbesher, Right to Counsel Before Grand Jury, 41 F.R.D. 189 (1966); Sobel, The New Confession Standards "Miranda v. Arizona" (Gould Publications, 1966), pp. 97-98. But we do not decide that question here or intimate any conclusion to that difficult legal problem since this case can and should be disposed of without passing on the alleged unconstitutionality of those Louisiana statutes under attack. It is a settled rule that the constitutionality of statutes will not be judicially determined unless such determination cannot be avoided. Woodard v. General Motors Corp., 5 Cir., 1962, 298 F.2d 121, 127; Reynolds v. Sims, 377 U.S. 533, 584, 84 S. Ct. 1362, 1393, 12 L. Ed. 2d 506 (1964).
The unusual and exceptional circumstances here warrant an exercise of our equity powers to prevent oppression to Chandler and to further the ends of justice by protecting Chandler's basic federal constitutional rights. [**27] It is clear that no useful public purpose is to be served by requiring plaintiff to respond to the Grand Jury subpoena. Louisiana law does not permit the presence of counsel with the witness in an appearance before the Grand Jury. The facts disclose quite clearly that the prosecutor has no faith in the truthfulness of the witness, having so declared publicly and in writing. It is also plain that the prosecutor is satisfied, as a result of his intensive investigation, that there is no organized crime in New Orleans such as the Life Magazine articles charge. It would be expected that Chandler's testimony under oath would be at variance with that conclusion. The appearance of plaintiff before the Grand Jury, without the presence of counsel, exposes him to the real possibility of indictment for perjury, false swearing, or both. Chandler is, therefore, a very real potential defendant in a possible criminal prosecution which either the District Attorney or the Grand Jury may decide to initiate against him. He has the right to remain silent under these conditions and should not be obliged to place himself in the perilous position of possible incrimination or be compelled to give evidence [**28] which, in the view of the District Attorney and the Grand Jury, might incriminate him.
The special circumstances of this case demand that plaintiff's federal constitutional rights be maintained and preserved. In our view they can only be assured by an injunction against the enforcement of the Grand Jury subpoena. The Court is, therefore, obliged to take such action as the facts require. Cf. Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965).
However, since the case may be disposed of without reaching the serious constitutional questions which plaintiff raises, the three-judge statutory Court is hereby dissolved and the case returned to Judge James A. Comiskey from whom the matter initiated, for further handling. Cf. McWood Corporation v. State Corporation Com'n of N.M., D.C., D.N.Mex., 1965, 237 F. Supp. 963; Wright on Federal Courts, p. 164.
COMISKEY, District Judge.
Considering the foregoing per curiam and for the reasons there well expressed, [*200] which are herewith adopted by reference as our own findings of fact and conclusions of law, a preliminary and permanent injunction will be issued forthwith against the defendants restraining the [**29] enforcement of the subpoena or any other such subpoena hereafter issued in lieu thereof directing plaintiff David L. Chandler's appearance before the Orleans Parish Grand Jury in connection with the subject matter of plaintiff's complaint.
The further relief prayed for is denied. Counsel for plaintiff will submit proposed decree after service of copy on counsel for defendants.
Appendix A
DISTRICT ATTORNEY
Parish of Orleans
State of Louisiana
2700 Tulane Avenue
New Orleans 70119
Jim Garrison
District Attorney
October 13, 1967
Mr. Richard Billings, Associate Editor
Life Magazine
Time and Life Building
Rockefeller Center
New York, New York
Dear Dick:
By now I am sure you are aware that Life Magazine has made a number of serious factual errors in its recent statements concerning organized crime in New Orleans. It appears to me that you should have been aware at the outset that you were not getting accurate information from your sources when virtually every fact brought up in our presence by Sandy Smith turned out to be either completely wrong or badly distorted - a condition which I made plain to you within a matter of days.
The [**30] Grand Jury inquiry has indicated that there is no basis in fact supporting the allegations of Life concerning systematic racketeering activities in New Orleans. Even witnesses who made it apparent that they would have to take the Fifth Amendment if questioned about other jurisdictions testified that with regard to Orleans Parish the Life articles were totally untrue and based on false information. Some of the individuals supposedly operating "bookie rings" in the Fontainebleau have not been in that hotel for over a year nor has anyone working for them ever frequented the hotel. As I informed you earlier, the management of the hotel has never seen these individuals or any of their supposed associates hanging around the hotel at any time. What the Life stories seem to have done, as far as we are able to determine, was to lift some gambling operations which were confined to St. Bernard Parish out of that parish and place them in the Fontainebleau in the City of New Orleans - somewhat in the manner that Dorothy was lifted, house and all, from Kansas and moved over into Oz by the tornado.
Naturally, the members of the Orleans Parish Grand Jury now want to hear from Dave Chandler, [**31] Life's representative in New Orleans, in order to see if there are any stones unturned and if he has some special information which all of the other witnesses called do not have. Needless to say, as long as Dave tells the truth - for that is all that the Grand Jury and my staff are interested in - he will be treated with complete fairness and courtesy.
Incidentally, regarding Dave, I have confirmed that - as I indicated to you earlier - he did not tell you the truth about the "rumor" that Pershing Gervais supposedly fixed the case for Wray Gill when Ferrie was arrested by our office after the assassination (which rumor, I might add, I had never heard before until you advised me that you had learned it from Dave Chandler). By now you should have received a copy of our questioning of Chandler concerning his unsupported comment that Gervais had received money from Gill in order to help Ferrie in a case involving a charge of intimidation several years earlier. It is apparent that what your reporter did in this instance was to move the rumor forward in time and to attach it to our 1963 arrest of Ferrie, thus creating the inference [*201] that the real facts of the assassination [**32] have remained concealed because of this "fix". Actually, none of the young men associated with Ferrie in the 1963 matter had visas nor had there ever been an inference of any kind that anyone in that group had visas so that they might be able to leave the country quickly. Gervais had no connection with the case and has never at any time been assigned to any aspect of the Kennedy investigation. This appears to be another example of the tendency of your New Orleans reporter to fabricate stories which are totally untrue and then to present them as fact.
Frankly, I do not understand how you have been unable to see how these statements by your man in New Orleans were totally untrue. Above all, it is hard for me to understand what would allow you to think that I would let a single "bookie ring" operate anywhere in the City much less allow three of them to flourish in one hotel. It is all the more difficult for me to understand when I spent hours with you explaining how we had cracked down on every type of organized crime operation - without exception - and have made more progress in this regard in our five years in office than had been made in the previous quarter century. In [**33] my judgment you are an intelligent and competent man but you have, in this instance, failed to discharge your supervisory responsibilities effectively and then, consequently, have depicted New Orleans as a center of organized crime and my office as an incompetent, lax and corrupt office.
In order to give Life Magazine every opportunity to document its allegations - or to present any added evidence which it may have concerning any type of syndicated crimes whatsoever - I invite you and Sandy Smith to New Orleans to testify before the Grand Jury. Again, our sole interest is in obtaining the truth. You will be allowed to present any kind of evidence you have, without any restriction whatsoever, concerning the possible existence of organized crime in New Orleans or concerning collusion of public officials with racketeers. If you are as interested as we are in determining the truth then you should regard this as an opportunity. I might add that I have voluntarily appeared before the Grand Jury - a brand-new Grand Jury whose members I do not know - and testified under oath on every aspect of this matter. We have called every witness who conceivably might have information concerning [**34] racketeering operations in the City - from Carlos Marcello to the Governor of Louisiana.
On the basis of the Grand Jury inquiry up to this point, it appears that your articles have reflected unjustly on the City of New Orleans. What they have done to me and the office which I have worked to build for the last five years is beyond my capacity to describe. I can only say that I am very disappointed that you did not exercise better judgment in your supervision of these articles.
Sincerely,
(s) JIM GARRISON
District Attorney
JG:lcs
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