Appendix — Shaw v. Garrison

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APPENDIX A. ~~

_- UNITED STATES DISTRICT COURT °

: | EASTERN DISTRICT OF LOUISIANA

) NEW ORLEANS DIVISION

CIVIL ACTION No. 68-1063, SECTION B

CLAY L. SHAW

versus

JIM GARRISON individually, and as District Attorney for.

7 the Parish of Grleans, State of Louisiana, and JAMES

L. ALCOCK, individually and as Executive Assistant

District Attorney for the Parish of Orleans, State of

Louisiana, and CHARLES R. WARD, individually,

and as‘an Assistant District Attorney for the Parish

of Orleans, State. of Louisiana. —

TEMPORARY RESTRAINING ORDER.

IT IS HEREBY ORDERED, ADJUDGED AND

'. DECREED, pursuant to 28 U.S.C. § 2284(3), that

the Defendants Jim Garrison, James L. Alcock, and _

Charles R. Ward, and each of them and their 2

spective assistants, associates, attorneys, employ,

ees, agents, officers and assigns be, and they are

hereby, ENJOINED AND RESTRAINED from. tak-

ing any further action in. the prosecution of the case

entitled ‘State of Louisiana v. Clay. L.° Shaw,”..

_ Number 198-059 on the/Docket of the Criminal Dis-

trict Court for the Parish. of Orleans, State of Lou-

isiana, pending the further orders of this Court. '.

- 114

REASONS,

The complaint herein (a 47-page document of 116

- paragraphs) presents: allegations of numerous dep-

rivations of the petitioner’s federal rights by the

defendant: District Attorneys within the context of,

or connected with, the criminal prosecution pending

against him in the state court for ‘conspiracy to

murder .the late President Kennedy. The complaint

read as.a whole presents much more than a recita-

tion of isolated wrongs, ‘but impugns the entire -

prosecution against the petitioner and attempts to

raise the actions of, the defendants, prior to and

during the present criminal proceedings, to the

level of a concerted pattern of persecution of the

petitioner and the wholesale and willful disregard of -

the petitioner’ s constitutional rights. The 7.

states that “the petitioner requires a ‘sanctuary’

this Court to grant him relief from the padi

harm, clear and:imminent,. which he has suffered

at the hands of the defendants herein since March

1, 1967,”’ (Count 4 of the Complaint), during which

time, “the defendants * *'* have * * * conducted

themselves and their office in such a manner as to

create an atmosphere of fear and suspicion con-

cerning the motives and actions of the Office of the

District Attorney for the Parish of Orleans” (Count

88); that “the defendants, ” and in particular, De-

fendant Garrison, are conducting a reign of terror by :

the misuse and abuse of the powers of the public of-

fices which they hold, “by conducting an illegal, un-

warranted; fraudulent and useless probe of the as-

c ry

sassination of the late John F. Kennedy,” (Count 96),

' that “the erstwhile Kennedy assassination probe be-

ing. conducted by the defendants is indistinguish-

able from the case’’ against the petitioner (Count

97), and.that “although plaintiff has been the pri-

mary victim of -the machinations: of the defendants

_ through the abuse and ‘misuse of the power of

their respectve offices, many others have felt the

impact of their reign of terror, and the case of

State vs. Shaw is now and has for sometime past

been of tremendous public importance, not only: to

the, citizens of this community, but to all citizens of

the United States and to the world.” (Count 98).

The thrust of these liiiiainiale raises serious

questions concerning the relationship between this

federal district court and the Louisiana Criminal

District Court in whicn the prosecution against | the-

plaintiff is lodged, and indeed between federal ‘and

state courts across the nation. Whenever. a federal

court stays the hand of a state official, the delicate

_ balance of comity, so necessary and wholesome for

our federal system, is likely to be disturbed. The -

delicacy of the comity issue is not only greatly in-

creased, ‘but augmented by the now-entrenched prin-

ciples of equity law, see Ex parte Young, 209 U.S.

123, 161-162 (1908),. when the state agency in

volved is a court of law and the ‘state official an

esteemed “member of the state judiciary. But as del-

icate as the comity balance must be, the points of

reference on which if rests today are in a. process

of continual development, along lines sketched by

116

Dombrowski v. Pfister, 380 U.S. 479 (1964). At -this

stage in the development of the law and the. possi-

ble future developments indicated by the Supreme

Court, we are not prepared to rule out the possibil-

ity of a remedy for this plaintiff under the state of

_ facts he presents in his petition. And because there

is a very real. likelihood that the plaintiff may pre-

‘ vail on the merits, and because in view of the plain-

tiff’s allegations of the unconstitutionality of various

pertinent Louisiana statutes a three-judge court is

required in this matter in the interest of the State

of Louisiana, see Wright on Federal Courts § 50, p.

162, and it may not be possible fer the hearing be-

fore that court to be held and concluded prior to the

scheduled date of the trial of the plaintiff in the

state court to the possible irreparable injury of the

plaintiff, we grant the motion for temporary re-

straining order pending a speedy hearing on the mo-

tion for preliminary injunction.

The so-called ‘‘anti-injunction statute,’ 28 U.S.C.

§2283, is based on the obvious premise that a fed-

eral ‘court can conceivably be authorized -to stay a:

state proceeding in the interests (in which federal

courts have a paramount. interest) of the protection

of federal constitutional rights.’ The question wheth-

er § 2283 can be accepted a step further to either

(a) not prohibit the stay of a state criminal prose-

1 This would follow, inter alia, not only from the- fact that

Congress saw a need to bolster equity considerations, cf.

Ex parte Young, supra, with this general prohibition, ‘ but

also from the recognized power of the federal Congress to’

provide for exclusive jurisdiction of federal constitutional

matters in the federal courts, cf. Wright on Federal Courts,

§ 10, p. 22.

117

cution along the lines of Dombrowski, or (b) au-

thorize such a stay, is not something which can

easily be resolved in the light of comments in Dom-

browski and the more recent case of Cameron v.

Johnson, 36 U.S.L.Week’ 4319 (April 23, 1968). In

Dombrowski, the court found it ‘unnecessary to re-

solve the question- whether suits under 42 U.S.C. 8 .

1983 (1958 ed.) come under the ‘expressly author-

ized’ exception to § 2283.” 380 U.S. at 484 n.2.2 In

Cameron the court upheld the denial of injunctive

relief against state prosecutions by the district court,

and noted : |

2 Of course, aside from the question of what constitutes an

“express authorization” within the terms of § 2283 and the

question of whether or not 42 U.S.C. § 1983 is such an express

authorization, there seems to be a serious question whether

any express authorization is necessary in view of the equitable

origins of § 2283. The leading case on the subject, apart from

the sparse comments by the Supreme Court in Dombrowski

and Cameron, is Baines v. City of Danville, 337 F.2d 579 (4th

Cir. 1964). There, the court noted that: “Since the statute

[§ 2283] was fathered by the principles of comity, it has

been held that the statute should be read in the light of those

principles and, though absolute in its terms,.is inapplicable

in extraordinary cases in which an injunction against state

court proceedings is the only means of avoiding grave and

irreparable injury.” 337 F.2d at 593. The Baines case preceded

the Supreme Court’s decision in Dombrowski, and the Fourth

Circuit therefore had no occasion, to consider whether its

holding that § 2283 “is not always aBsolute” might be cotermi-

- nous with the authority of the federal courts to enjoin

prospective state criminal proceedings recognized in Dom-

browski. Of particular importance to our decision here, the

court in Baines stated: “Recognizing that:the command of

§ 2283 is not always absolute, w granted:a temporary in-

junction pending appeal of this c * * * Such an injunction

was essential if the controversies were not to become moot

while these appeals were being perfected, heard, and deter-

mined in this court. We concluded that it was such an extra-

ordinary situation that issuance of a temporary injunction

staying prosecutions in the state courts pending our <disposi-

tion of this appeal was authorized notwithstanding § 2283.”

- 337 F.2d at 593-594. | .

118

“Our | per curiam [which had previously re-

manded the case for reconsideration ] stated,

381 U.S. 741-742: ‘On remand, the district court

should first consider whether 28 U.S.C. § 2283

bats a federal injunction in this case, see 380

U.S. at 484, n.2. If § 2283 is not a bar, the court

should then determine whether relief -is proper

in light of the criteria set forth in Dombrowski.’

The district court held that ,§ 2283 - prohibited

the court from enjoining or abating the crimi-

nal prosecutions initiated against the appellants

prior to the filing of the suit on April 13, 1964,

and further, that 42 U.S.C. § 1983 creates no ex-

ception to.§ 2283. 262 F.Supp. 873, 878. We find

it unnecessary to resolve either.question and in-

timate no view whatever upon the correctness

of the holding of the district court.” 36 U.S.L.

Week 4320, n.3.-

Given this state of the law, the real possibility of a

determination in the plaintiff's favor by the three-

judge court which, under the law, should .be the

court to determine the issue, and the irreparable

harm which may agcrue to the plaintiff by the initia-

tion of his trial prior to the three-judge hearing, we

think equity demands, and the proprietary interest

of the federal courts authorize, whatever short de-

lay of the state trial we now grant.

Nor do we think, apart from the issues posed by

_ § 2283 and Ex parte Young, Supra, Dombrowski »v.

Pfister precludes the possibility that the plaintiff |

es Sa ae ~oer e re ee

119

may prevail. Dombrowski, in-fact, has greatly en-

larged the possibility of federal injunction of ‘state

criminal prosecution’. The case does contain much

language which seems to limit the” possibility to.

cases where First Amendment | rights are endan-

_ gered. Nonetheless, a too narrow interpretation of

Dombrowski, attempting to limit its thrust solely- to

cases where First Amendment rights are jeopard-

ized, would dilute’ the major and fundamental

premise of the decision. In Dombrowski, the court.

referred to cases declining to enjoin state dialed

tions as follows:

“In such cases it ‘does not appear that the

plaintiffs have been. threatened with any injury

other than that incidental to every criminal -pro-

ceeding brought lawfully and in good faith, jor

that a federal court of equity by withdrawing

the determination of guilt from the ‘state courts

could rightly. afford petitioners any protection .

which they could not secure by. prompt trial and

appeal.pursuant to this court.’ Douglas v.. City of

Jeanette [319° U.S. 157] at 164. But the allega-

tions in this complaint depict a_ situation in

which defense of the state’s criminal prosecu-

tion will not insure adequate vindication. of con-

stitutional rights.’’ 380 U.S. at 485.

Plainly, the court considered an injunction

against the state proceeding warranted simply be-

cause the criminal prosecution could not serve as an

adequate vehicle for the’ protection of the rights

clei apse ce yes AON iti bint ah aan ak aR sick ini iat Aavlacetned nite

. ' e ~— °

VOLE kL AND SON MB PNET a eS le OV Aw

Hi, , oe

120

’ which the prosecution itself had allegedly endan-

gered. It does not seem to be essential to the Dom-~

browsSki holding that the ‘court continued to find

specifically that the prosecution there has the ef-

fect of impairing the plaintiffs’ freedom of expres-

sion; other federal rights should be equally entitled.

to protection ‘where a finding of irreparable injury,

which cannot be safeguarded within the context of

the criminal proceeding, is warranted.

The pervasive allegations of- the petitioner here

that his prosecution by the defendants is totally

without foundation, we think raise the definite rea-

sonable’ possibility -of a. finding on the merits that 7

his rights cannot be vindicated within the context of

his state prosecution. It is true that the petitioner

has not complained of the infringement, by this

prosecution, of any specific federal constitutional

right which is not part and parcel of the criminal

proceedings in the state coyrt.* But the petitioner cer-

tainly does complain about “legal, unwarranted,

fraudulent, and useless’? actions directed, against

his person and the totality of his freedom, by agents

of the State of. Louisiana acting in their official ca-

pacity. The compartmentalization of the totality of

a person’s “right to be let alone” by the state may |

be helpful generally in the development of a co-

herent body of law under the various civil rights |

*s It is, of course, at the heart of the Dombrowski finding of

“irreparable injury” sufficient to justify an injunction against

a state proceeding, that the plaintiffs be “threatened with

[some substantial] injury other than that incidental to every

eg —_— g brought lawfully and in good faith.” 380 —

at 48

121 —

e :

amendineiin to sda Constitution, but the trend is.

* not always conducive to the adequate protection of

individual liberty; the Supreme’ Court has strongly

_ indicated that the “concept of liberty” is not to be

tied down merely to the recitation of the convention-

al freedoms ‘stratified in specific guarantees in the

Bill of Rights where substantial unjust interference

by the state with personal liberty is involved, see

Griswold v. Connecticut, 381 U.S. 479 (1965). In short

the plaintiff's complaint raises real issues of alleged ©

deprivations of _ liberty through the actions of the

state, the. correction. of Which, if proven, alga well

require Dombrowski relief.

| FREDERICK J. R. HEEBE, |

UNITED STATES DISTRICT

JUDGE

New Orleans, Louisiana.

May 28, 1968 at 2:10 P.M.

(ny

122

APPENDIX B.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NEW ORLEANS DIVISION

CIVIL ACTION No. 68-1063, SECTION B -

CLAY L. SHAW

43s vs.

JIM GARRISON, individually, et al.

BEFORE: AINSWORTH, Circuit Judge, and HEEBE

~ and COMISKEY, District Judges.

PER CURIAM: |

The ‘plaintiff Clay L. Shaw is under indictment in

the Criminal District Court for the Parish of Or-

leans, Louisiana, for having “wilfully and unlawful-

ly conspire[d]. . .to murder John F. Kennedy. a

He has filed this suit against Jim Garrison, District.

Attorney for the Parish of Orleans, and: two of his

assistants for declaratory and injunctive relief in an

. effort to arrest the prosecution. He was_ initially

_ charged on March 1, 1967 by the defendant Garri-

son with participating in a conspiracy to murder |

President Kennedy. Thereafter on March 14, 1967 a

preliminary hearing was held in the State. court

. before a three judge panel to determine whether

there was sufficient, éYidence to establish probable

cause to charge Shaw with conspiracy.

The State offered four witnesses, one of whom,

Perry Raymond Russo, testified that he was pres-

ent when the plaintiff and Leé Harvey Oswald and

David William Ferrie venpesiee to. kill the. Presi-

123°

dent. Another witness, Vernon Bundy, stated that .

he saw plaintiff having a conversation with Oswald

near Lake Pontchartrain in New Orleans. The three-

judge panel ruled that sufficient evidence had been

presented to establish probable cause that a crime

had been committed and to justify continuing the

prosecution against the plaintiff. On March 22, 1967,

plaintiff was indicted for conspiracy to murder .John

F. Kennedy by the Orleans Parish Grand Jury. On

August 1, 1967, the defendants moved .to select a

trial date, but on September 27, 1967, plaintiff asked

for a continuance, or a change of venue. A_ hear-

ing was held on the motion and. upon the suggestion

_of the defendants Garrison and Alcock, the court

granted a continuance until February, 1968. On

February 19, 1968, citing the great publicity the

case had received, the plaintiff moved the Crimi-

nal District Court to order a change of venue. An.

extensive evidentiary hearing was conducted by the

trial judge after which the ‘motion was. denied on

April 4. The Supreme Court of the State of Louisi-

ana denied ‘plaintiff's application for writs of cer-

tiorari on the question of venue on April 23, 1968.

— trial was then set for June 11, 1968.

Now, on. May 27, 1968, nearly 15 months after: the

- plaintiff was originally charged, he filed ‘this suit Ae

_ asking for an injunction against the prosecution for

which trial was set. on June 11, 1968. A ‘temporary

restraining order against taking any further action

in the prosecution.was issued ‘by: one member. of our

panel on May 28, 1968, after which this three-judge

court was constituted to hear the. case.

124

- Plaintiff's complaint contains numerous \allega-

tions of constitutional infirmities in the State prose-

_ cution against him. He contends that the prelimi-

nary hearing was illegal khecause . it was. heard be-

fore a three-judge state court, which wa’s not author-

ized by the Louisiana statutes concerning prelimi-

nary hearings; that the defendants made a search

of plaintifif’s premises and confiscated much of his

property under the authority of an illegally issued

‘search’ warrant;, that the indictment was returned

on insufficient evidence; that he is prejudiced by the

considerable publicity which this case. has re-

ceived; and that the:state court has unjustly denied

his application and supplemental application for a

bill of particulars. He asks that this court ‘declare

as unconstitutional Articles 402,’ 403,’ 409,* and 413*

1 “Art. 402. Service of women as jurors

A woman shall.not be selected for jury “service unless

she has previously filed with the clerk of court of the parish

in which she: resides a written declaration of her desire to

be subject to jury service.” ‘

2 “Art. 403. Eaemption from jury service 5

The following persons are exempt from jury service,

but the exemption is ‘Personal | to them and ‘is not a ground

for challenge:

(1) ‘The governor, lieutenant governor, state comptrol--

ler, state treasurer, secretary of state, superintendent of

public. education, their clerks and employees, the members,

_ officers, and clerks of the legislature, and the judges and

active officers of the several courts of this state;

2) <Any other public official, if jury service would

seridusly interfere with the performance of his official duties; .

(3) Attorneys-at-law, peace officers, ministers of the

' gospel, physicians and dentists actively engaged in the practice

of their professions, school teachers, school bus _ drivers,

pharmacists, members of paid fire departments, and persons ©

who are required to travel reguiarly and routinely in the

course and scope of their employment;

(4) Persons who because of age, sickness, or other

‘physical infirmity would suffer serious detriment if —

to serve as a juror ; and '

‘

“

125.

of the Louisiana Code of Criminal Procedure and

Article VII, Section 41 of the Louisiana Constitution

of 1921,° which . provisions deal with the qualifications

> (5) Persons who have served as grand or petit ‘jurors

in criminal cases or as trial jurors in civil cases during a

period of twelve months immediately preceding their. selec-

a for jury service.”

Art. 409. Selection of general venire in Orleans parish

“In the Parish of Qrleans, the jury commission shall .

select impartially at least seven hundred fifty persons having

the qualifications to serve as jurors, who shall constitute the

general venire.

“A list of the persons so selected shall be prepared and _

certified by the commission as the general -venire list. and

shall be kept as part of the records of the commission.

The name and address of each person on the list shall

be written on a separate slip of paper which shall be placed

'. in a box labeled ‘General Venire Box.’

-No drawing shall be made from a general’ venire contain-

ing fewer than seven hundred fifty names, except when the

court orders the drawing of tales jurors.

After the jury commission has selected the general

venire, it shall lock and seal the general venire box and

deliver it to the secretary of the commission, as the custodian

thereof.”

“Art. 413. Method of impaneling of grand jury; selection

-° of foreman

The grand jury shall consist of twelve persons qualified

to serve as jurors, selected or drawn .from the grand jury’

venire. -

In parishes other than Orleans, the court shall select

one person from the grand jury venire to serve as foreman

of the grand jury. The sheriff shall draw indiscriminately

and by lot from the envelope containing the remaining names -

on the. grand jury venire a sufficient number of names to

complete the grand ‘jury. The envelope containing the remain-

ing names shall be replated into the grand jury box for use

in filling vacancies as provided in Article 415. .

In the Parish of Orle the court shall select twelve

persons from the grand jury venire, who shall constitute the

grand jury. The court shall thereupon select one of the jurors

to serve as foreman.”

“Art. 7 §41. Selection of jurors; women “jurors; Prial by

judge; trial by jury

The Legislature shall provide for the election and draw- ~

ing of competent and intelligent jurors*for the trial of civil

and criminal cases; ene however, that no woman Shall.

126

and manner of selection of jurors. He also attacks

the constitutionality of Articles 433° and 434’ of the’

Louisiana Code of Criminal Procedure, which ‘arti-

be drawn for jury service unless she shall have previously |

filed with the elerk of the District Court a written declara-

tion of her desire ‘to be subject to such service. All cases in

which the punishment may not be at hard labor shall, until

‘ otherwise provided by law, be tried by the judge without a

jury. Cases in which the punishment may be at hard labor,

shall be tried by a jury of five, all of whom must concur to

render a verdict; cases, in which the punishment is necessarily

at hard labor, by a jury of twelve, nine of whom must con-

cur to render a verdict; cases in which the punishinent may

be capital, by a jury of twelve, all of whom mvst concur to

render a verdict.”

¢ “Art. 433. Persons present during grand jury sessions

A. Only the following persons may ‘be present at the

- gessions of the grand jury:

(1) The district attorney and assistant district attorneys,

or any one or more of them;

(2) The witness under examination;

(3) A person sworn to record the proceedings of, and

the testimony given before, the grand jury; and

(4) An interpreter sworn to translate the testimony of

a witness who is unable to speak the English language.

“ B. No person, other than a grand juror, shall be present

while the grand jury is deliberating and voting.

C. A person who is intentionally present at a meeting of

the grand jury, except as authorized by Paragraph A of this

article, shall’be in constructive contempt of court.”

“Art. 434. Secrecy of grand jury meetings .

Members of the grand jury, all other persons present

at a grand jury meeting, and ail persons having confidential

access to information concerning grand jury proceedings,

shall keep secret the testimony of witnesses and all other

matters occurring at, or directly connected with, a meeting

of the grand jury. However, after the indictment, such per-

sons may reveal statutory irregularities in grand jury pro-

ceedings to defense counsel, the district attorney, or the

court, and “may testify concerning them. Such persons may

disclose testimony given before the grand jury, at any time

when permitted by the court, to show that a witness com-

_ mitted perjury in his testimony before the grand jury. A

_ witness may discuss his testimony given before the grand

jury with counsel for a person under investigation or indicted,

with the district attorney, or with the court.

Any person who violates the provisions of this article

shall be in constructive contempt of court.”

cles deal with grand jury’ proceedings. He further |

127

contends that Articles 484° and 485° of the Louisiana

Code of Criminal Procedure are’ unconstitutional ;

these: provisions are concerned with bills of particu-

lars, He also asks that Articles 627° and 912" of .

“Art. 484. Bill of particulars.

A motion for a bill of particulars may be filed of right

before trial or within ten days after arraignment, whichever

is earlier. After expiration of the ten-day period the court

may permit‘ the filing of. such a motion until the commence-

ment of trial. When a motion is filed, or on its own motion,

che court may require the district attorney to furnish a bill

of particulars setting up more specifically the nature and

cause of the charge against the defendant. : .

Supplemental bills of particulars or a new bill may be

ordered by the court at any time before the trial begins. |

When a bill of particulars is furnished, it shall be filed of

record and a copy of the bill given to the defendant.”

“Art. 485. Effect of inconsistent or limiting allegations _ of

bill of particulars -

If it appears from the bill of particulars furnished under

Article 484, together with any particulars appearing in the

indictment, that the offense charged in the indictment was

not committed, or that the-defendant did not commit it, or

that there is a ground for quashing the indictment, the court -

may on its own motion, and on motion of the defendant shall,

_ order that the indictment be quashed unless the defect is

cured. The defect will be cured if the district attorney fur-

nishes, within a period fixed by the court and not to exceed

three days from the order, another bill of particulars which

either by itself or together with any particulars appearing in

the indictment so states the particular as fo make it appear

that the offense charged was committed by the defendant, or

that there is no ground: for quashing the indictment, as the ~

case may be.” .

“Art. 627. Appeals .

If a change of venue is granted to the defendant over

the objection of the state, or if the court denies an application

by the state for a change of venue, the state shall have the

right to appeal from the ruling, within the legal delays for

making a motion for an appeal before a trial on the merits.

Prior to sentence the defendant may not appeal from a ruling

changing or refusing to change the venue.” F

“Art. 912. Judgments or rulings appealable

A. Only a final judgment or ruling is appealable.

B. The state cannot appeal from a verdict of acquittal.

Adverse judgments or rulings from which the state may

128

. the same code, which deny the defendant the right

: to appeal from the denial of a motion for change of

venue, be declared unconstitutional. He then shifts

his constitutional assault to the Louisiana Crimi-

nal Code and asserts ‘that LSA-R.S. 14:26,% Lou-

appeal include, but are not limited to, judgments or rulings on:

(1) A motion to quash an indictment or any count

thereof;

(2) A plea of. time limitation;

(3) A plea of double jeopardy;

(4) <A motion in arrest of judgment;

- (5) A motion to change the venue;

(6) A motion to recuse; and

‘ (7) An order in an extradition proceeding.

C. The judgments or rulings from which the defendant

may appeal include, but are not limited to:

(1) ‘A judgment which imposes sentence;

(2) A ruling upon a motion by the state declaring the

_ present insanity of the defendant; and

(3) <A ruling ordering the defendant to be extradited.”

“R.S. 14:26. Criminal conspiracy:

Criminal conspiracy is the agreement or combination of

two or more persons for the specific purpose of committing

any crime; provided that an agreement or combination to

commit a crime shall not amount to a criminal conspiracy

unless, in addition to such agreement or combination, one or

more of such parties does an act in furtherance of the object

of the agreement or combination.

Where the intended basic crime has been consummated

the conspirators may be tried for either the conspiracy or

the completed offense, and a conviction for one shall not bar

a.prosecution for the other.

Whoever is a party to a criminal conspiracy to commit

a crime punishable by death or life imprisonment, shall be

imprisoned at hard labor for not less than one nor more than

twenty years.

Whoever is a party to a criminal conspiracy to commit

‘the crimes of theft or of receiving stolen things shall be fined

not more than two hundred dollars, or imprisoned for not”

more than one year, or both.

Whoever is a party to a criminal conspiracy to commit

any other crime shall be fined or imprisoned, or both, in the

same manner as for the offense contemplated by the con-

spirators; but such fine or imprisonment shall not exceed one-

half of the largest fine, or one-half the a, term of im-

prisonment prescribed for such offense, or bo

isiana’s conspiracy statute (under which plaintiff

was indicted), is unconstitutional because of vague-

ness, in that it is written in ‘broad, general and in-

definite language and the penalties for the crime

are not certain. He also contends that 14:26 is void.

because it does not define the word “crime” as con-

tained in the statute or designate what crimes the

statute has reference to when it ‘states that a con-

spiracy to commit ‘crime is a criminal offense. In

a memorandum filed in opposition to a motion to

dismiss subsequently brought by the defendants,

plaintiff also attacks the conspiracy statute’ as be--

ing violative of the: First Amendment right of free-

dom of speech. Plaintiff. alleges that he is suffering

irreparable injury ‘because of the pending criminal

prosecution and prays that it be enjoined. In an

amendment to his complaint plaintiff further al-

leges that defendants are not prosecuting him in

good faith but “have charged him-solely and only

for the purpose of using him as a vehicle to the fo-

rum which they sought for their attacks on the War-

ren Report.” Plaintiffs also claim that. the de-

fendants “are not motivated ‘by an expectation of

securing a valid conviction,’ but their actions are

part of a plan to harass plaintiff from -asserting his

rights to free speech and assembly and to “harass

any and all individual citizens who disagree with

their theories as to the assassination of President.

Kennedy, how the assassination’ came about, who

participated in the assassination, the political con-

sequences of the death of the President, and the in-

.tegrity of the members of the Warren Commission.”

-/ ‘tion, plaintiff prays that we grant a mandatory in-

RR ch wo

130

In the amended complaint plaintiff also adds Arti-

cle 782'° of the Louisiana Code of Criminal Proce- ©

dure to the list of provisions which he claims are

unconstitutional. This article states, inter alia, that

cases in which thg punishment is necessarily at

hard labor shall be tried by a jury composed of

twelve jurors, nine of whom must concur to render

_ a verdict. ao

Plaintiff has also requested that we grant a de-

claratory judgment decreeing that the report of the

Warren Commission to the President. of the United

States, pursuant to Executive Order No. 11130, is

valid, accurate and correct, binding and controlling

upon all courts of the United States, and admissible

in evidence in the state court prosecution. In addi-

junction ‘against the defendants compelling them to

furnish to plaintiff certain documents relative to the

' prosecution. .

After the ‘suit was filed, plaintiff filed a motion to

join the Attorney General of the United States under

13 “Art. 782. Number of jurors composing jury; number which

must concur

Cases in which the punishment may be capital shall be-

tried by a jury of twelve jurors, all of whom’must concur to

render a verdict. Cases in which the -punishment is neces-

sarily at hard labor shall be tried by a jury composed of

twelve jurors, nine of whom must concur to render a verdict.

Cases in which the punishment may be imprisonment at hard

= Igbor, shall be tried by a jury composed of five jurors, all

of whom must concur to render a verdict. Except as provided

in Article 780, trial by jury may not be waived.”

cia "ahh ates eto et —* es ee

131

‘Rule 19 of the<#éderal Rules of Civil Procedure as

a defendant “eran involuntary plaintiff, and the

court’s jurisdictiomwas invoked under 28 U.S.C. |

4 “Rule 19. he .

(a) Persons to be Joined ifyFeasible.

A person who is subject to service of process and whose

joinder will not deprive the court of jurisdiction over the

subject matter of the action shall be joined as a party in the

action if (1) in his absence complete relief cannot be accorded

among; those already parties, or (2) he claims an interest - ‘

Telating to the subject of the’ action and is so situated that,

' the disposition of the action in his absence may (i) as a

practical matter impair or impede his ability to protect that .

interest or (ii) leave any of the persons already parties

subject to a substantial risk of incurring double, multiple or

otherwise inconsistent obligations by reason of his claimed

interest. If he has not been so joined, the court shall order that

he be made a party. If he should join as a plaintiff but refuses

to do so, he may be made a defendant; or, in a proper case,

an involuntary plaintiff. If the joined party objects to venue

and-his joinder would render the venue of the action im-

proper, he shall be dismissed from the action.

(b) Determination by Court Whenever Joinder not

Feasible. — the *

If a person as described in subdivision (a) (1)-(2) hereof

cannot be made a party, the court shall determine whether

in equity and good conscience the action should: proceed among

the parties before it, or should be dismissed, the absent per-

son being thus regarded as indispensable. The factors to. be

considered by the court include: first, to what extent a

judgment rendered in the person’s absence might be prej-

udicial to him or those already parties; second, the extent

to which, by protective provisions in the judgment, by the

shaping of relief, or other measures, the prejudice can be

‘lessened or avoided; third, whether a judgment rendered in

the person’s absence will be adequate; fourth, whether the

plaintiff will have an adequate remedy if the action is dis- .

missed for nonjoinder.

A pleading asserting a claim for relief shall state the names,

if known to the pleader; of any persons as described in sub-

division (a) (1)-(2) hereof who are. pot joined, and the

reasons why they are not joined.

(d) Exception of Class Actions.

This rule is subject to the provisions of Rule 23. As amended .,

Feb. 28, 1966, eff. July 1, 1966.”.

‘eam AE Waitt Aa

RRR TENS Ln ANN a Qed ceili

a ee ne

132 "

§1361**. which grants to federal district courts orig-

inal jutisdiction of ‘any action in the nature of man-

damus to compel an officer of the United States or

any agency thereof to perform a duty owéd to the

plaintiff, and §1391(e),! relatimg to venue require-

ments for civil actions in which officers of the Unit-

ed States, or any agency thereof are defendants.

Plaintiff argues that 28 U.S.C. §509 vests all

functions of officers of the Department of Justice in

_the Attorney General. He then cites 28 U.S.C. §547,

which provides: .

“Except as otherwise provided ‘by .law, each )

United States attorney, within his district, shali

1s §6“98 U.S.C. §1361.. Action to compel an officer of the United .

States to perform his duty. hes

The district courts shall “have original jurisdiction of

any action in the nature of mandamus to compel an officer

or employee of the United States. or any agency thereof to

perform a duty owed to the plaintiff.”

16 «6 “98 U.S.C. §1391(e) Venue generally

“(e) A civil action in which each defendant is an .

officer or employee of the United ‘States or any agency there-

of acting in his official capacity or under color of legal au-

thority, or an agency. of the United States, may, except as

othérwise provided by law, be brought in any judicial district

in which: (1) a defendant in the action resides, or (2) the

cause of action arose, or (3) any real property involved in

the action is situated, or (4) the plaintiff *resides if no real

property is involved in the action.

: The summons and complaint in such an action shall be

served as provided by the Federal Rules of Civil Procedure

except that the delivery of the summons and complaint to

the officer or agency as required by the rules may be made

by certified mail beyond the territorial limits of the district -

in which the action is brought.’ .

17 “98 U.S.C. §509. Functions of the Attorney General

~~ All functions of other officers of the Department of

Justice and all functions of agencies and employees of the

Department of Justice, are vested in the Attorney General.

133

.(2) prosecute or defend, for the Govern-

ment, all civil actions, suits or proceedings in.

which the United States is concerred:. e

The Court has’ strong reservations as to whether,

by virtue of §509, the Attorney General, rather

than the United States Attorney for the Eastern Dis-

trict of Louisiana, may be joined. But it is not neces-

sary that we dispose of that question, as we are of

the opinion that neither the. Attorney General nor.

the United States Attorney may be joined in this

case under §547. |

Under §547 the plaintiff argues that it is a pro-

ceeding with which the United States is concerned.

Plaintiff argues that this is such a case because. of

“the defendants’ attempts to discredit the Report of

the Warren Commission and several officers and

agencies of the United States Government and

their alleged effort to destroy the confidence of the

American people in the government of thé United

States. Plaintiff.also reiterates that the validity of

the Warren Report is an issue in this case since he

has asked for a,declaratory judgment as to its ac-

“curacy, . : . 7

The United States Attorney for the Eastern Dis-

trict of Louisiana has informed the Court that the

Attorney General objects to being made a party to

this suit. In pleadings which were subsequently filed

‘by the United States Attorney it is suggested that the _

Court lacks jurisdiction over the Attorney General:

* °134

‘that the venue is improper; that 28 U.S.C. §1361-

and Rule 19 of the Federal Rules of Civil Procedure

are inapplicable to this case; and that there is no

justifiable case or controversy as far as the Attor-

ney General is concerned. It is unnecessary that we

consider these questions further because of our be-

lief that we cannot interfere with the Attorney Gen-

eral’s decision which would constitute an infringe

ment by us upon the discretion of* the executive

‘branch of the United States government. The Attor-

ney General’s absolute discretion in deciding wheth-

er or not to prosecute criminal. cases was confirmed

. by the Fifth Circuit Court of Appeals in Smithyv.

United States, 375 F.2d. 243 (5th Cir., 1967). In our ©

opinion, the Attorney General and the executive

branch of the government, have the same discretion

in deciding whether the United States is concerned

in particular civil action. In Newman. v. United |

States, 382 F.2d 479, 482 (D.C:Cir., 1967), a case in-

volving the duties of the United States Attorney, the

Court of Appeals for the District of Columbia said:

“It is assumed that the United States Attor-

ney will.perform his duties and exercise his

powers consistent with his oaths; and while this —

discretion is subject to abuse or misuse just as

is judicial discretion, deviations from his duty as

an agent of the Executive are to be dealt with--

by his superiors. sae |

“The remedy lies ultimately within the estab-

lishment where power and discretion reside. The

135

President: has abundant supervisory - and dis-

ciplinary powers—including summary dismis-

sal—to deal with misconduct of his subordinates;

it is not the function of the judiciary to review

. the. exercise’ of executive discretion whether it

be that of the President himself or those to

whom he has’ delegated certain of his pow-

ers.” :

We agree with. this statement and accordingly deny

the plaintiff’s motion to compel the Attorney Gen-

eral to be made a party to this action.

Il.

The defendants filed a motion to dismiss the plain-

tiff’s action for failure to state a claim upon which

relief can be granted. .Since Documents outside the

pleadings, namely, exhibits and a complete tran-

script of the state preliminary, hearing, are being

considered, we treat this as a motion for a sum-

. mary judgment. fe tert

The defendants argue that this suit should be dis-

missed. because 28 U.S.C. §2283'* prohibits a fed-

eral court from enjoining. pending state court pro-

ceedings. On the other hand, the plaintiff ‘contends

that §2283. should “riot apply because of the excep-

tional circumstances\he has alleged.

18 “28 U.S.C. §2283. Stay of State court proceedings =

A court of the United, States may not grant an injunction

to stay proceedings-in a State court except as expressly

authorizedzby Act of Congress, or where necessary in aid

of its jurisdiction, or to protect or effectuate its judgments.”

ei all

136

- In deciding whether the circumstances alleged by

plaintiff entitle him to the injunctive relief, it is —

first necessary to consider some of the more impor- |

tant cases dealing with the question of when federal

courts may enjoin state court criminal prosecutions.

In Douglas v. City of Jeannette, 319 U.S. 157, 68 S.

Ct. 8775 87 L.Ed. 1324 (1943), plaintiffs, Jehovah’s

Witnesses, brought a suit in the federal district

court to restrain threatened: criminal prosecution of .

them in the state courts by the city and its mayor

for violation of a city ordinance prohibiting the so-

licitation of orders for merchandise without first

procuring a license from the city authorities and

paying a license tax. Plaintiffs were distributing re-

ligious pamphlets without obtaining a license and

were threatened with prosecution: under this ordi-

nance unless they procured licenses. They alleged

that the ordinance was an unconstitutional abridge-

- ment of free speech, press and religion in violation

of the First Amendment. Although in Murdock v.

Commonwealth of Pénnsylvania, 319 U.S. 105, 63'S.

Ct. 870, 87 L.Ed. 1292 (1943), decided on the same

day as Douglas, the Supreme Court declared the

same ordinance unconstitutional, it refused to hold -

‘in the Douglas case that an injunction should is-

‘sue against any threatened state prosecutions. The

Court stated that federal courts should refuse “to -

interfere with or embarrass threatened proceedings |

in state courts save in those exceptional cases

which call for. the interposition of a court of equity

to prevent injury which is clear and imminent. . .”’

319 U.S. at 163, 63 S.Ct. at 881. The Court went on: to

137

say, ‘‘No person is immune from prosecution in good

faith: for his alleged criminal acts. Its imminence,

even though alleged to be in violation of constitus

tional guarantees, is not a ground for equity relief

. Since the lawfulness or constitutionality of the stat- |

ute or ordinance may be determined as readily in _

the criminal. case as in a suit for an injunction.”

Ibid.. The Court found that the declared intention to

institute prosecutions against plaintiffs was not suf- -

ficient to establish irreparable injury in the circum-

' stances of that case. — :

In Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118,

96 L.Ed. 138 (1951), the Supreme Court held that.

a federal injunction should not issue against using -

allegedly illegally seized. evidence in a state crimi-

nal trial and gave this clear. statement of*the con-

siderations governing the federal paey an mene en-

joining state prosecutions:

“The consequences of exercising the equita-

ble power here invoked are not the. concern of

a merely doctrinaire alertness to protect the

proper sphere of the States in enforcing their

criminal law. If we were to sadction this inter-

vention, we would expose. every State criminal

prosecution to insupportable disruption. Every

question of procedural due- process of law—

with its far-flung and .undefined range—would

invite a flanking movement against the system |

of State courts by resort to the federal forum

with review-if need be to this Court, to deter- .

138

mine the issue. Asserted unconstitutionality in

the impaneling and selection of the grand and

petit juries, in the failure to appoint counsel, iu

the admission of a confession, in the creation of -

an unfair trial atmosphere, in the’ misconduct

- of ‘the trial court—all would provide ready op-

portunities, which conscientious counsel might ~

be bound. to employ, ‘to subvert the orderly, ef-

fective ‘prosecution of local crime in . local

courts. To ‘suggest these difficulties is to recog-

nize their solution.’ 342 U.S. at 123, 72 S.Ct. at

121-122. ©

This language was quoted with approval by the

Supreme Court in Cleary v. Bolger, 371 U.S. 392, 83

S.Ct. 385, 9 L.Ed.2d 390 (1963), in which the Court

held that it was improper to enjoin a state official

from presenting certain evidence in a state court

‘criminal prosecution. The court said, “The with-

holding of injunctive relief against this state official

does not deprive respondent of the opportunity for

federal correction of any denial of federal constitu-

tional rights in the state proceedings. To the extent

that such rights have been violated, cf., e.g., Mapp

v. Ohio, supra, he may raise the objection in the

state courts and then seek review in this Court of

an adverse determination by the New York Court of

Appeals. To permit such claims to be litigated col-

laterally,.as is sought here, would in effect frustrate

the deep-seated federal policy against piecemeal re-

view.” 371 U.S. at 400-401, 83 S.Ct. at 390. —

cae | 139

The principles formulated by the jurisprudence

through Cleary xy. Bolger may be. briefly summa-

rized at this point..According to these cases the mere

fact that the plaintiff-was claiming that his constitu-

tional rights were being violated was not a ground

for such an injunction, In addition to such a claim,

a plaintiff must show that he would suffer irrepara-

ble injury which .is clear and imminent. Only such

a showing would create the exceptional case or

special circumstances in which an injunction should

issue, The question of what would constitute irrepa-

rable injury had never been answered, Under these

cases it is apparent that the danger of a conviction,

standing alone, did not constitute irreparable in-

jury. because constitutional infirmities in the trial

could be reviewed in the various remedies there-

after available to the defendant, such as appeal to

the Louisiana Supreme Court, writ of certiorari to

the United States Supreme Court, and writs of ha-

beas corpus to state and federal courts.

‘Then came Dombrowski v. Pfister, 380 U.S. 479,

85 S.Ct. 1116,-14 L.Ed.2d 22 (1965), in which the Su-

preme Court found one of the exceptional cases or

special circumstances alluded to in the Douglas

case. The plaintiffs, the Southern Conference Educa-

tional Fund, Inc. (SCEF), two of its officers, and

an attorney for SCEF, filed suit in'a United States

District Court, requesting an injunction against im-

minent prosecutions and threats of such prosecu-

. tion under the Louisiana Communist Propaganda

Control Law and the Louisiana Subversive Activities

wisn ening Wak SS GE Ak RRs DA kN a gS

Sere aS eee Rat Or rae.

PD . acer te

eS)

Senate tidy and Bite Lane tae od

140

and Communist Control Law. The complaint alleged

that the ‘statutes wcre unconstitutionally vague

and that defendants—the Governor, police and law

enforcement officers, and the Chairman of the

Legislative Joint Committee on Un-American Activ-

- ities in Touisiana—had threatened prosecutions in

bad faith solely for the prupose of discouraging civil

rights activities. The plaintiffs claimed that the

threats to erforce these statutes against them -

were made without any expectation of securing

valid convictions, but rather were part of a plan to

harass and discourage them and their supporters

from asserting the constitutional rights of Negro

citizens of Louisiana. Past events convinced the

_ Court that the plaintiffs’. freedom of expression

had been subjected to a chilling effect. In Oc-

tober, 1963, the two officers of .SCEF and SCEF’s

attorney were arrested by Louisiana state and

local police and charged with violations of the two

statutes. Their offices were raided and their rec-.

ords and files were seized.. Later in October a state

judge quashed the arrest warrants as not based on

probable cause and discharged the plaintiffs. Subse-

quently, the state court granted ‘a motion to sup-

press the seized evidence on the ground that the raid

was illegal. Louisiana officials continued, however,

to threaten prosecution of the plaintiffs, who there-

upon filed suit in a federal district court. A three-

judge court was constituted to hear the ‘case. Short-

ly after the court was convened, a grand jury was

summoned in the Parish of Orleans to hear evidence

looking to indictments of the plaintiffs. At this

141

| point one of the members of the three-judge court

issued a temporary restraining order against any

further’ prosecutions, but ‘subsequently a majority of

the court dismissed the complaint and dissolved the

temporary restraining order. Thereafter the grand

’ jury returned indictments under the ‘Louisiana Sub-

_versive Activities and Communist Control Law

against the plaintiffs. The Supreme Court _was con-

cerned over the adverse effect which these events

had upon the operations of SCEF:

“These events, together with repeated an-

nouncements by appellee that the appellant or-

ganization is a subversive or Communist-front

organization, whose members must register or

be prosecuted under ‘the Louisiana statutes,

have, appellants allege, frightened. off potential

members and contributors. . . Seizures of docu-

ments and records have paralyzed operations

and threatened exposure of the identity of ad-

_ herents to a locally unpopular cause. .. Al-

though the particular seizure has been quashed

in the ‘state courts, the continuing threat of

prosecution portends further arrests and sei-

zures, some of which may be upheld and all of

which will cause the organization inconven-

ience or worse. . . .Not only does the complaint

_allege far more than an ‘injury other than

that incidental to every criminal prosecution

brought lawfully. and in good faith, but appel-

lants allege threats to enforce statutory - pro-

visions other than those under which _indict-

142

ments ‘which have been brought. Since there is

no immediate prospect of a final state adjudica-

tion as to those other sections—if; indeed, there —

is any certainty that prosecution of the pend- -

. ing indictments will resolve all constitutional is-

sues presented—a series of state criminal prose-

cutions will not provide satisfactory resolution

of constitutional issues.” 380 U. S. at °488-489; 85

S.Ct. at 1122.

In these exceptional circumstances the Court held

that a case of “the threat of irreparable injury re-

quired by traditional doctrines of equity’? was made

out, 380 U. S. at 490, 85 S.Ct. at .1123, and it ruled

that ‘‘the district Court erred in holding that the

complaint fails to allege sufficient ‘irreparable in-

jury to justify equitable relief.” 380 U. S. at 489, 85

S.Ct. at 1122. The Court held further that certain

sections of the Louisiana Subversive Activities and

- Communist Control Law were patently unconstitu-

tional on their face and remanded with direction to |

frame an appropriate injunction ‘restraining ° prose-

cution of the indictments obtained under this law.

The most recent Supreme Court case in this area

is Cameron v. Johnson, 88 S.Ct. 1335, .... US.

(1968). The plaintiffs brought an action for

declaratory and: injunctive relief in the United States ©

District Court. They sought a declaratory judgment

.decreeing that the Mississippi. Anti-Picketing Law

was void on its face as an overly broad and vague ©

regulation of expression. They also sought a perma-

143

~ nent injunction restraining the defendants—the gov-

ernor and other Mississippi officials—from enforcing

the statute in pending or future criminal prosecu-

tions. They alleged that the pending prosecutions

‘against them for violating the statute were part of a

plan of selective enforcement engaged in by defend-

ants with no expectation of securing convictions, but

Solely to discourage plaintiffs from picketing to pro-

test racial. discrimination in voter registration , and

from encouraging Negro citizens to attempt to regis-

ter to vote. At the time of the suit there were nu- |

merous criminal prosecutions pending against plain-

tiffs. But the Supreme Court held that the circum-

stances of this case were not controlled by Dom-

- browski and upheld the district court’s refusal to

grant the injunction. Here, unlike Dombrowski, the

state statute was held to be a valid law. Further-

more, the Court found that the Mississippi officials

had not enforced it against the plaintiffs in bad faith

to harass their exercise of protected expression and’

without any intention of pressing the charges or any

expectation of obtaining convictions. Rather, the

Court held that the officials had in good faith regard-

ed the plaintiffs’ conduct as violating the statute.

We now summarize the effect of Dombrowski and

Cameron on the earlier jurisprudence. In Dombrow- -

ski the Court carved out one of the special circum-.

stances or exceptional cases under which a federal

injunction may issue, when it held that under the

peculiar circumstances of that case there was an ex-

ception to the general policy against federal injunc-

144 }

tions of state court proceedings. This may be called

the ‘‘chilling effect” exception, because the irrepara-

ble injury in this case was the chilling effect on the

First Amendment rights of the plaintiffs in the Dom-~

browski case, which was caused by the defendant’s

threat of repeated raids on SCEF’s headquarters and

arrest and prosecution of SCEF’s officials. But the

fact that a constitutional right has allegedly been in-

fringed, standing alone, is not enough to come within

the chilling effect doctrine. For the Court in the Dom-

browSki case said, “It is generally to be assumed

that state courts and prosecutors will observe consti-

tutional limitations as expounded by this Court, and

that the mere possibility of erroneous initial appplica- -

tion of constitutional standards will usually not

amount to the irreparable injury necessary to

justify a disruption of orderly state -proceedings.”’

380 U.S. 479, 484-485, 85°S.Ct. 1116, 1120. Rather, in or-

der to come within this exception the plaintiff

must show that the prosecution has been brought

against him, not because the defendants in good faith

believe that he has violated Louisiana’s conspiracy

statute, but in bad faith, knowing that he did not com-

mit the crime of conspiracy, in order to harass the

plaintiff in the exercise of his First Amendment

rights without any expectation of obtaining a valid

conviction. It is not enough for the plaintiff to allege

that he is innocent of state charges in order to obtain

injunctive. relief. As the Supreme Court said in

Cameron v. Johnson, supra, 88 S.Ct. at 1341: '

‘“rTyhe question for the District Court was

not the guilt or innocence of the persons

145. | “

charged, ‘the suestion was whether the. ‘statute

was enforced against them with no expectation.

of convictions but only to discourage exercise of

protected rights. The mere possibility of erpene-

ous application of the ‘statute does not amount

‘to the irreparable injury necessary to justify a

disruption of orderly state proceedings.’ Dom-

browski v. Pfister, supra, 380 U.S. at 485, 85 S.Ct.

at 1120. The issue of guilt or innocence is for the

state court at the criminal trial; the State was

not required to prove appellants guilty in the fed-

eral proceedings to escape the finding that the

State had no expectation of securing valid con-

victions.”’

_ Turning now to the case before us, there can be no

question that the plaintiff has alleged that he is the

- victim of a prosecution conducted in bad faith. In his

complaint he alleges that the defendants ‘“‘have not

acted in good faith, ‘but to the contrary, they have

charged plaintiff and caused him to be indicted sole-

ly and only for the purpose of using him as a vehicle

to the forum which they sought for their attacks on

the Warren Report. He is a ‘patsy’ or a ‘pawn’ in the

hands of the defendants, being used by them in fur-

therance of their false and fraudulent investigation of

the Kennedy. assassination.” Surely, it cannot be

doubted that these allegations if proved, would es-

taklish that the plaintiff is being prosecuted in bad

faith: If the plaintiff’s contentions are true, the de-

fendants’ conduct in this case would constitute seri-

ous bad faith. © :

ee oe ee ee ee ee ae re ee SS ne

146

But under Dombrowski and Cameron the plaintiff,

in order to obtain injunctive relief must also show

that his First Amendment rights are being violated.

In Cameron v. Johnson, _supra, Justice Fortas dis-

sented and thought , that the prosecutions ‘should have

been enjoined. Nevertheless, he did not contend that

an injunction should issue under Dombrowski in the

absence of First Amendment violations, but on. the

‘ contrary, said, ““Dombrowski’s remedy is justified

only when First Amendment rights, which are basic

to our freedom, are imperiled by calculated, delib-

erate state assault.” 88-S.Ct. 1335, 1338. (Emphasis

added.) “The plaintiff does allege that his First

Amendment rights are being infringed in the follow-

ing manner: he has been prohibited from leaving the

jurisdiction; he has been under surveillance by the. t

defendants and their agents; he has received threats

to his life; his business and social activities, his at-

tendance at public functions, and his appearances in

public life generally have been restricted; his neigh-

bors and friends have been subjected to interroga-

tion, surveillance, and harassment; the defendant

Garrison has made public and private statements

that the plaintiff would either commit suicide or be

killed prior to trial; the plaintiff fears arrest and/or |

entrapment; the defendant. Garrison has made re-

peated public and private statements that there is no

"way that the plaintiff can ‘be acquitted ; the telephone

of plaintiff and his associates has been tapped: there |

has been electronic intrusion into plaintiff's home;.

there has been repeated public speculation, as well

as:statements by the defendants and others, about

147

his private life, conduct and habits; the plaintiff has

been held up to ridicule by the defendants and the

public at large because of the groundless charge

brought against him; he has heen made the subject

of undue and extensive surveillance and _ investi-

gation of his private life by parties unknown to him,

as a result of which he alleges that his right of free-

dom of expression, thoughts and actions has been -

obliterated; he fears for his safety and ha's to accept

police protection when making court appearances;

he is unable to obtairf gainful employment; his at-

torneys have been subjected to publicized vitriolic

attacks by defendants; and the plaintiff fears to

occupy his homestead. ° .

Some of the matters alleged, such as the prohibi-

tion from leaving the jurisdiction and the restriction

of plaintiff’s business and social activities, are mere-

ly part of the “injury incidental to every proceeding

. brought lawfully and in good faith,” Cameron v.

. Johnson, supra, 88 S.Ct. at 1339. However, even

though all of these allegations, if proved, would show

that the plaintiff has suffered injury. and. injustice be-

cause of the .prosecution, a plaintiff seeking Dom-

browski relief must also show that the bad faith pros-

ecution has been brought for the purpose of continu-

ing harassment in order to discourage him in the ex-

ercise of his First Amendment rights. Here the plain- °

tiff contends that the defendants’ “actions are part

of a plan to employ illegal searches and seizures and

threats of prosecution undey color of the statute to

harass plaintiff, and to discourage otlers of his class,

+. 148

from asserting his rights. to free speech and assem-

bly, as guaranteed to him by the First Amendment

to the Constitution of the United States. ” Plaintiff

discitsses his claim in more detail when he refers to

“defendants’ plan to employ arrests, seizures and

threats of prosecution, under color of: various Louisi-

ana statutes, including ‘but not limited to LRS 14:26,

to harass any and all individual citizens who disagree

with their theories as to the assassination of Presi-

dent Kennedy, how the. assassination came about,

who participated in the assassination, the political

consequences of the death of the President, the integ-

rity of the investigating” officers, and the integrity

_ of the members of: the Warren Commission.” There

is no suggestion by plaintiff that the prosecution has

the effect:of continuous harassment in the exercise

by hirn of protected expression in the Dombrowski —

context. His right of such expression has not been im-

‘paired. During the oral hearing on this motion, coun-

sel for plaintiff informed “the Court that the “plaintiff

has never publicly taken a ‘stand either for or against

the Warren.,Report, nor has he made any public

statements about his theories on the assassination of. :

President Kennedy. It is- clear that the prosecution |

was not instituted for the purpose of discouraging the

plaintiff in the exercise of his First Amendment

rights, Accordingly, we hold that plaintiff has failed

‘to bring his case within the ambit of the Dombrowski

decision. |

Plaintiff also alleges-that the defendants ‘are not

motivated by any expectation of obtaining a- valid

149

conviction . . .” But in several parts of his complaint

plaintiff indicates that he fears that he may be con-

victed. In Paragraph 41 he states that should he be.

convicted, he will: suffer irreparable injury from the

publicity which will attend such a conviction. In Para-

graph 51 of his complaint he states that -he “will

have his liberty placed in’ jeopardy by standing

trial” in the state court. In Paragraph 58 he states

that he will suffer irreparable injury ‘“‘in the event

of his conviction . . .” And in Paragraph 59 he notes

. the . possibility of being incarcerated without bail

pending appeal from a conviction. All of the actions

which the defendants have taken, ‘since they obtained

' a ruling at the close of the preliminary hearing that

there was probable cause to justify continuing the

prosecution against the plaintiff, indicate that they

are striving for a conviction. It should be noted in

this respect that this case had been ‘set for trial by

the defendants on June 11, 1968, before a temporary

restraining order was granted against further pros-

ecution of this case.

Nor do we believe that the plaintiff’s alleged in-

jury is irreparable. An acquittal in the state court

would end the alleged injury. And our holding that an

_. Injunction shall not issue does not. preclude the plain-

tiff from ultimate federal review ‘of. the State court

_ jproceedings and relief. from any unjust conse-

quences which he may suffer during such proceed-

ings. Review of the plaintiff's trial may ‘be obtained

by appeal to the Louisiana Supreme Court, writ of

certiorari to the United States tines Court, and

‘ ’ 150

by writs of habeas corpus to the state and federal

courts, Furthermore, the plaintiff may well be ac-

quitted at the trial.

In City of Greenwood v. Peacock, 384 U.S. 808, 86

S.Ct. 1800, 16 L.Ed.2d 944 (1966), the Supreme Court

held that a state criminal prosecution could not be

removed from state court to federal court; even

though the defendants claimed that “they are being

grosecuted on baseless charges solely because of

their race . . »”’ The Court was of the opinion that if.

these allegations were true, ‘‘there has been an out-

rageous denial of their federal rights,’ but added

that “the federal courts are far from ‘powerless to

redress the wrongs done to them.” 384 U.S. at 828,

86 S.Ct. at 1813. The Supreme Court ‘said that “there

are many other remedies available in the federal

courts to redress the wrongs claimed by the individ-

ual petitioners in the extraordinary circumstances

they alleged in their removal petition.” 584 U.S., at

829, 86 S.Ct. at 1813. The Court further said:

“If they go to trial and there is a complete ab-

sence of evidence against them, their convictions

will be set aside because of a denial of due proc-

ess of law. Thompson vy. City of ‘Louisville, 362

U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. If at their

trial they are in fact denied any federal constitu-

tional rights, and these denials go uncorrected by

other courts of the State, the remedy of federal

habeas corpus is freely available to them. Fay v.

Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed. 837, If

151

their federal claims at trial have been denied

through an unfair or deficient fact-finding proc-

ess, that, too, can be corrected by a federal

court. Townsend v. Sain, 372 U.S. 293, 83 S.Ct.

745, 9 L.Ed.2d 770. .

“Other sanctions, civil and criminal, are avail-

able in the federal courts against officers of a

State who violate the petitioners’ federal consti-

tutional and statutory rights,, Under 42 U.S.C. §

1983 (1964 ed.) the officers may be made to

respond in damages not only for violations of

rights conferred by federal equal civil rights laws,

but for violations of other federal constitution-

al and statutory rights as well. Monroe v.

Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492.”

384 U.S. at 829-830, 86 S.Ct. at 1813-1814. ;

We believe that the Supreme Court’s reasoning

concerning removal in the Peacock case is equally

applicable here and that plaintiff will have ample op-

portunity to obtain ultimate federal relief from any

injuries he may suffer as a result of the possible’ dep-

rivation of his constitutional rights in the state

court prosecution, should he fail to achieve vindica-

tion of his rights in the state court proceedings.”

Summary judgment is appropriate here without

an evidentiary hearing because the pleadings and ex-

#9 Plaintiff’s counsel in brief p. 42 erroneously states that the

present case has been removed from the state court and

therefore there are no presently pending state proceedings -

which would bar an injunction under §2283. This is probably

an inadvertance by counsel since it is quite clear there has

' been no removal of the state proceedings to the federal court.

See

152

hibits adequately set forth the details and facts -of

plaintiff's case. Counsel for plaintiff has followed

the Louisiana practice of articulating all of the facts

‘in his verified pleadings, as is required by Article 854

of the Louisiana Code of Civil Procedure,” and

therefore, we are apprised of the nature of plaintiff’s

case in ultimate detail. The complaint as amended

consists of 58 pages and 125 allegations. We have

been informed by counsel for plaintiff that they would

use every witness in this case that they would call in —

the state court trial. We have accepted all well

pleaded facts as true, but we have nevertheless

concluded that plaintiff is not entitled to injunctive

relief under Dombrowski and Cameron. © |

Plaintiff also contends that 28 U.S.C. §2283 does not.

bar injunctive releief which he ‘seeks under 42 U.S.C.

$1983.21 He argues that. §1983 is an exception to the ©

provisions of §2283 which forbids a United States

_ Court to grant an injunction to stay state court pro-

ceedings “except as expressly authorized by Act of

Congress .. .’’ But we need not pass on this ques-

20 “Art. 854. Form of pleading

No technical forms of pleading are required.

All allegations of fact of the petition, exceptions, or

answer shall be simple, concise, and direct, and shall be set

forth in numbered paragraphs. As far as practicable, the

contents of each paragraph shall be limited to a single set

of circumstances.”

21 «“42 U.S.C. §1983 Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,

..regulation, custom, or usage, of any State or Territory, sub-

jects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by

the Constitution and laws, be liable to the party injured

in an action at law, suit in equity, or other proper proceeding

for redress. RS. $1979.”

153

» tion in view of our holding above that the injury that

plaintiff has alleged is not irreparable.-The Supreme

Court has not yet found it necessary to pass on this

matter.” But it is apparent from an examination of

some of the cases dealing with the question of ‘fed-

eral injunctions of state court prosecutions that even

if we found that-§1983 is an expressly authorized ex-

ception to §2283, we should not grant injunctive re-

lief in the absence of exceptional circumstances

showing irreparable | injury without. which federal

courts have been reluctant to enjoin state court’

prosecutions. One writer has commented that the

question of whether §1983 is an exception to §2283 is!

“Yargely academic” because even “where the anti-

injunction statute does not apply, federal courts have

been reluctant to interfere in state matters in the

area of civil rights except in extraordinary circum-

stances.”

#2 See Dombrowski v. Pfister, supra, at 380 U.S. 484, 85 S.Ct.

119-120, footnote 2,-and Cameron v. Johnson, supra, at 88

\ S.Ct. 1337, footnote 3. But there are several federal cases in

which this point has been considered. The Third Circuit held

that §1983 does constitute an exception to $2283 in Cooper v.

Hutchinson, 184 F.2d 119 (3rd Cir., 1950), and this case was

followed by’ a district court in the same circuit in Tribune

Review Publishing Company v. Thomas, 153 F.Supp. -486 .

W.D. Pa., 1957). Cases in which it was held that §1983 does

not constitute an exception to §2283 are Baines v. City of

Danville, 337 F.2d 579 (4th Cir., 1964), cert. den. Chase v.

McClain, 381 U.S. 939, 85 S.Ct. 1772, 14 L.Ed.2d 702 (1965);

Smith v. Village of Lansing, 241 F.2d 856 (7th Cir., 1957);

‘Goss v. State of Mlinois, 312 F.2d 257 (7th Cir., 1963); Sexton

v. Barry, 233 F.2d 220 (6th Cir., 1956), cert. den. 352 U.S.

870, 77 S.Ct. 94, 1 L-Ed.2d (1956); Brooks v. Briley, 274

F.Supp. 538 (M.D.Tenn., 1967), aff’d, 88 S.Ct. 1671 (1968);

' Sheridan v. Garrison, 273 F.Supp. 673 (E.D.La., 1967); and

Cameron v. Johnson, 262 F.Supp. 873 (S.D.Miss., 1966), aff’d

on other grounds, 88 S.Ct. 1335 (1968). .

28° Note, Incompatibility—The Touchstone of Section 2283's

Express Authorization Exception, 50 Va. L.Rev. 1404, 1427-

1428 (1964). ;

LL TET EE ELE ENDLESS LEE AEA AAA A TI,

154

In this context it should be pointed out that inj

Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877,

87 L.Ed. 1324 (1943), the Supreme Court held that the

plaintiffs had successfully invoked jurisdiction under

. the predecessor statutory provision to §1983. Never-

theless, it refused to grant an injunction in the ab-

sence of extraordinary circumstances. In: Stefanelli

v. Minard, 342 U.S. 117, 230, 72 S.Ct. 118, 120, 96 L.Ed.

138 (1951), the Supreme Court warned that:

. even if the power to grant the relief here

sought may fairly and constitutionally be derived

from the generality of language of the Civil

Rights Act [which question the Court refrained

from deciding], to sustain the claim would dis-

regard the power of courts of ‘equity to exercise

discretion when, in a matter of equity jurisdic-

tion, the balance is. against the wisdom of using

their power. Here the considerations governing

that discretion touch perhaps the most sensitive

source of friction between States and Nation.

namely, the active intrusion of the federal courts

“cc

in the administration of the crminal law for the “9

prosecution of crimes solely within the power of.

‘the States.”

In Cooper v. Hutchinson, 184 F.2d 119 (3rd Cir., ©

1950) the Third Circuit Court of Appeals would not

grant injurictive relief in spite of the fact that they

held that §1983 is an expressly authorized exceptioni

« to §2283. In denying injunctive relief it said: |

155

‘Nevertheless, this is a suit in equity. The giv-

ing of the peculiarly characteristic remedies:

available in equity lie in a chancellor’s discre-

tion, subject, of course, to review. We think a

chancellor’s discretion in this case requires a

_ withholding of his arm from interfering at a pre-

liminary stage in state litigation, at least until it

has ‘become apparent that state procedure can-

not avert jrreparable harm to these appellants.

The Supreme Court has warned us constantly

about interfering in the delicate matter of the

balance between state and national authority. The

‘arrest by the federal courts of the processes

of the criminal law within the states * * * [is] to

_ be supported only on a showing of danger of irrep-

arable injury ‘both great and immediate.’

Douglas Vv. City of Jeannette .. .” 184 F.2d at

124. '

Therefore we have concluded that it is unnecessary

to make a definitive finding on the difficult legal

question as to whether §1983 is an exception to $2283

under the circumstances here presented.

IV.

Plaintiff also seeks a declaratory judgment decree-

ing that LSA-R.S. 14:26, the Leuisiana conspiracy

statute under which he- is being prosecuted, is uncon-

Stitutional. He also seeks a declaration of the uncon-

Stitutionality of the following Louisiana provisions:

Articles 402, 403, 409, and 413 of the Louisiana Code /

156

-—of Criminal Procedure, and Article VII, Section 41,.

of the Louisiana Constitution of 1921, which provisions

are concerned with qualifications and manner. of

selection of jurors; Articles 433 and 434 of the Code

of Criminal Procedure, concerning grand jury pro- .

eeedings; Articles 484 and 485 of the Code of Crim-

inal Procedure, dealing with bills of particulars; Ar-_

ticles 627 and 912 of the same Code, which deny a de-

fendant the right to appeal from the denial of a mo-

tion for change of venue; and Article 782 of the Code

of Criminal Procedure, which provides that cases in

which the punishment is necessarily at hard labor

shall ibe tried by a jury composed of twelve jurors,

nine of whom must concur to render a verdict.” Of,

the preceding provisions being challenged here, only

three, namely, Articles 402 and 409 of the Code of

Criminal Procedure, and Article VII, Section 41,. of

the Louisiana Constitution of 1921, were challenged

in the state court proceedings. It is a curious circum-

stance that the constitutionality of the conspiracy’

statute under which the plaintiff was indicted and is

being prosecuted has not been questioned ‘by the

plaintiff in the state court. Therefore, it is before us

for initial consideration of its ‘constitutionality.

Plaintiff relies principally upon the decision of

Zwickler v. Koota, 389 U. S. 241, 88 S. Ct. 391, 19 L.

Ed.' 2d 444 (1967), in asserting that he is entitled to

independent consideration of this portion of the com.

plaint, regardless of our determination as to the

_ merits of his request for injunctive relief.

24 =The full text of these provisions is set forth in Notes 1-18,

supra.

157

Zwickler v. Koota involved the abstention doctrine,

under which a federal court may abstain from de-

termining the constitutionality of a state statute

when that provision is subject to an interpretation’

by a court of that state which would cure it-of any

alleged infirmities ‘and ereby erase the constitu

tional challenge.” In Ahe Zwickler case a New

York statute made it a crime to distribute in quan-

tity certain types of pelitical handbills for another

person without printing on the handbilis the name

and address of the person for whom the handbills

were ‘being distributed. The plaintiff had ‘been

prosecuted under this statute, but his ‘conviction

was reversed in the state court on state law .

grounds. Subsequently, even though no state prose

cution was pending and none was actually threat-

ened (the plaintiff assumed,. without’ offering any

evidence to that effect, that the defendant intended

to prosecute him if he distributed anonymous hand-

bills in the future),** plaintiff brought suit in fed-

25 The doctrine of abstention was first promulgated by the

Supreme Court. in Railroad Commission of Texas v. Pullman

Co., 312 U. S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). In

that case the Court stated that if a federal district court

passes on the constitutionality of a statute which is subject

to a construction by a state court which would remove the

alleged constitutional infirmities, “no matter how seasoned

the. judgment of the district court may be, it cannot escape

being a forecast rather than a determination.” 312 U. S. at

499, 61 S. Ct. at 645. ao

26 In Zwickler v. Koota, 261 F. Supp. 985, 988 (E. D. N. Y., -

. 1966), the three-judge district*court stated that the plaintiff

“presumes to read Mr. Koota’s’ mind by alleging that. Mr.

Koota ‘pursuant to his duties intends or will again prosecute

the plaintiff for his [intended] acts of distribution’ of

anonymous political literature. He regards this presumption

as ‘the threat of prosecution’ which places him ‘in fear of

exercising his right to make distribution as aforesaid’ and

which places him ‘in fear of again being prosecuted there-

i," °

158

eral court seeking a declaratory judgment that the

statute was unconstitutional on its face as an in .

fringement upon free expfession, and injunction — /\

prohibiting future prosecution of the plaintiff under ‘

that statute. Plaintiff contended that the statute

was void because of “overbreadth” in that its sweep

embraced anonymous handbills both within and

outside the protection of the First Amendment. But

a three-judge federal district court applied the doc-

trine of abstention and dismissed the suit. The Su-

_pteme Court reversed and held that the doctrine of

abstention could not properly be invoked. The dis-

trict court had thought that this statute was. suscep-

tible to a construction ‘by the state courts which

would avoid the constitutional question. But the Su-

preme Court found that such a construction was

impessible in this case; saying, “Appellee does not

contest appellant’s suggestion that §781-b [the New © ,

York statute in question] -is both clear and precise;’

a indeed, appellee concedes that state court construc-

tion cannot narrow its allegedly indiscriminate. cast

‘and render unnecessary a decision of appellant’s

constitutional challenge.” 88 S. Ct. 391, 396-397. The

Court then stated the general rule or to the

doctrine of abstention: ?

‘““(® * *Though never interpreted by a state

court, if a state statute is not fairly subject to

an interpretation which will avoid or modify the

‘federal constitutional question, it is the duty of

a federal court to decide the federal question

when presented to it. * * *’” Id. at 397.

‘ A . >

159

The district court also thought that the special ‘cir-

"cumstances necessary for an injunction to issue un-

der the holding in Douglas v. City of J eannette, 319

U. S. 157, 63 S, Ct. 877, 87 L. Ed. 1324 (1943), should-~----

be present if the declaratory judgment was to- bel

rendered. But the Supreme Court - held that - this,

too,, was error and said that “a Federal district

court has the duty to decide the appropriateness

and the merits of the declaratory request irrespec-

tive of its conclusion as to the propriety of the is-

. suance of the injunction.” Id. at 391. | by

However, despite the language of Zwickler, we

entertain serious doubts about the appropriateness

of stopping a pending state court prosecution to con-'

sider a request of plaintiff for a declaratory judg-

ment as to the constitutionality of R.S. 14:26, the

conspiracy statute under which he is being prose-

cuted. Although Zwickler ‘Stated that the doctrine of .

abstention could not be invoked in the circumstanc-

es of that case, it did not nullify the- well-settled

rule that the Federal Declaratory Judgment Act, 28

U.S.C. §§ 2201, 2202, is discretionary, rather than

mandatory, and declaratory relief may be withheld

by the district court in its discretion in appropriate

cases.” This principle was stated by the Supreme

27 See Malone v. Emmet, 278 F. Supp. 193, 200 (M. D. Ala.,

1967), in which the court declined to grant a declaratory

judgment as to the constitutionality of a state criminal pro- .

cedure statute, even though declaratory relief was coupled

with a request for an injunction of a pending prosecution

and Zwickler had-been decided by the Supreme Court three

' weeks previously: The court relied upon the discretionary

nature of declaratory relief in coming to its decision. :

castles

i 160

Court in Public Affairs Associates, Inc. v. Rickover,

- 369 U. S. 111, 112, 82 S. Ct. 580, 582, 7 L. Ed. 2d 604

oo: nai

“The Declaratory Judgment Act was an au-

thorization, not a command. It gave the federal

courts competence to make a declaration of

rights; it did not impose a duty to do so. [cit-

ing cases] Of course a District Court cannot

decline to entertain such an action as a matter

of whim or personal disinclination. ‘A declara-

tory judgment, like other forms of. equitable re-

lief, should be granted only as a matter of ju-

dicial discretion, exercised in the public — inter-

est.’ Eccles v: Peoples Bank, 333 U. S. 426, 431}

68 S. Ct. 641, 644, 92.L. Ed. 784. We have cau-

tioned against declaratory judgments on issues

of public moment, even falling short of constitu-

tionality, in speculative situations. Eccles v.. Peo-

_ ples Bank, -eapra, at 432, 68 S. Ct. at 644.

_ Our doubt about the wianebines of giving consider-

ation to the request for declaratory relief in the cir-

cumstances of this case is based upon our con-

cern that by permitting a defendant to interrupt a

_*state court prosecution to challenge the statute un-

- In Abbott Laboratories v. Gradner, 387 U. S. 136, 155, 87

S. Ct: 1507, 1519, 18 L. Ed.. 2d 681 (1967), the Supreme

Court said, “A court may even in its discretion dismiss a

declaratory judgment or injunctive suit if the same issue

is pending in litigation elsewhere.” Generally, a court may,

in its discretion, refuse to grant a declaratory judgment if ©

the issues raised may be fully adjudicated in a suit pending

in a state court at the time the federal declaratory judgment

- action was eamarant 1A Moore's Federal Practice 90.220 at

p. 2603.

161°

der which he is being prosecuted, we could open the

door to constant disruption of state court criminal

proceedings. Ingenious counsel for a defendant in a

state criminal prosecution would not find it difficult”

to phrase his defense in terms of constitutionality sv .

as to make it possible to bririg a suit for declara-

tory relief in a federal district court during the

pendency ofa state court prosecution. This might

well do violence to the strorg federal policy of com-

ity as expressed by the Supreme Court in Stefanelli

v. Minard, 342 U. S. 117, 72 S. Ct. 118, 96 L. Ed. 138

(1951) and Cleary v.. Bolger, 371 U- S. 392, 83 S. Ct.

385, 9°'L. Ed. 2d 390 (1963) .”

‘29 A somewhat comparable situation is found in the efforts of

convicted state prisoners to seek declaratory relief in the

federal courts. The rule is well established in several circuits

“that a defendant convicted of a crime should not be per-

mitted to utilize the declaratory judgment procedure as a

weapon with which to dispense with the requirement that

he exhaust his state remedies before coming into federal

court or as a substitute for appeal or habeas corpus. A good

statement of this general rule .was given by the Eighth Cir-

cuit Court of Appeals in Waldon v. State of Iowa, 323 F. 2d

852, 853 (8th Cir., 1963):

“A state prisoner is not entitled to seek a declaratory deter-

mination from the federal courts under 28 U.S.C.A. § 2201

as to the validity of the judgment on which he is confined.

If the restraint in which he is held is constitutionally invalid,

the federal courts have the power to release him therefrom

in habeas corpus, after exhaustion by. him of such state

* remedies as are available to him. He cannot resort to a federal

declaratory judgment suit -in an effort to escape having to

exhaust. available state remedies and to circumvent the intent

manifested by Congress in 28 U.S.C.A. § 2254 that the state

courts are to be given ‘the opportunity to pass upon and

correct errors of federal law in the state prisoner’s conviction’,

Fayv. Noia,-372 U. S. 391, 438, 83 S. Ct. 822, 848, 9 L. Ed.

2d 837.”

In Forsythe v. Ohio, 333 F. 2d 678, 679 (6th Cir., 1964), the

-Sixth Circuit .Court of Appeals stated, “We are satisfied that

the Declaratory Judgment Act, 28 U.S.C.A. § 2201, cannot be

used as a substitute for appeal, habeas corpus, coram nobis

or other procedures enjoying currency among the many now

- Another’ reason which causes us to doubt whether

| declaratory relief should ‘be entertained here is the

4- ‘ fact. that there are certain differences. between the

: circumstances in, Zwitkler and those in the case: be-

fore us. In Zwickler.there was no pending prosecution

3 and no evidence of'a real threat of future prosecu-

.4 tion. Furthermore, Zwickler ‘was concerned with a

4 + substantial attack on-a ‘statute which on its face al-

legedly violated First’ Amendment rights because of

+ its restraints upon anonymous haridbills.* In this

regard the Supreme Court said in Zwickler: ¢

“These principles have particular significance

when, as in this case, the attack upon the stat-

‘ute on its face is for. repugnancy to the First

_ Amendment. In such case to force the - plaintiff

« who has commenced a federal action, to suffer

the delay of. state court proceedings might itself -

effect the impermissible chilling of the very con-

Ski dhe daalida lcd dated Rite melas

aie =

- + seeking release from prison“’ Other recent cases holding that

% * “the federal district: court may refuse to grant declaratory,

. .Felief to review convictions before state remedies have been

exhausted are Benson v. State Board of Parole & Probation,

_ 384 F. 2d¢ 238 (9th Cir., 1967);~Booker v. State of Arkansas,

> 380 F. 2d 240.(8th Cir., 1967); Scruggs v. Henderson, 380

FF. 2d 981. (6th Cir., 1967); United States ex rel Bennett v.

_ People of the State of Minois,.356 F. 2d 879 (7th Cir., 1966),

cert. den. 384 U. S> 946, 86 S. Ct. 1472, 16 L.. Ed. 2d 544:

__. (1966); and Shannon v. Sequeechi, 365 F. 2d 827 (10th Cir., .

1966), cert. den. 386 U. S. 481, -87_S: Ct. 1175, 18 L. Ed. 2d

225 (1967), reh. den., 386 U.-S. 1014,~87 S. Ct. 1354, 18 L.

_ Ed. 2d 452 (1967).. ,

89 In Malone v. Emmet, 278 F. Supp. 193, 200 (M. D. Ala., 1967),

the court said, “[A]s the Court in Zwickler was careful to

_. Observe, the asserted .constitutional act was the First Amend-

: . ment guarantee of free speech. The Supreme Court in Zwickler

‘ | ,.. places free speech and othér First Amendment rights

in a special category.” |

163

- stitutional right he ‘seeks to protect.’ ”? 88 S. Gt. at

397- ad Pag

Pa ° s) / | 3

However, we do not believe that the conspiracy stat- he

ute can ‘be the object of a valid or substantial attack, |

‘on First. Amendment grour: as, . ee aa

Nevertheless, despite our serious misgivings about

considering’ the request for. declaratory relief,* we

have conéluded to rule on the constitutionality of the

conspiracy statute. LSA-R.S. 14:26, the Louisiana

conspiracy ‘statute, provides. » ; :

=,”

eS 6 ?

“Criminal conspiracy is the agreement or com-

bination of two-or more persons for the specific

purpose of committing any crime: provided that

an agtgement or combination to commit a crime.

shall not amount to a criminal conspiracy un- .

less, in addition to such agreement or combina-

tion, one or more of such parties does an act in

furtherance of the stata of the agreement or

combination. : ’

“Where the intended Basic crime has been con-

summated the conspirators may be tried for

either the, . conspiracy or the completed offense,

and a conviction for one shall not-bar a prosecu-

tion for the other.

“Whoever is a party to a criminal conspiracy.

to commit a crime punishable by death or life

imprisonment, shall be imprisoned at hard labor

~ for not less than one nor more than twenty yéars. .

pisanh diated is

ah healt

164

_ “Whoever is a party to a criminal conspiracy

. to: commit th& crimes of theft. or’ of receiving

stolen things shall be fined not more than two

hundred dollars, or imprisoned for not more E

_ than.one year, or both.

‘Whoever is.a party to a ‘criminal conspiracy

to commit any other crime shall be fined or im-

prisoned, or. both, in the same manner as for thé

“offense contemplated by the conspirators ; ‘but

such fine” or imprisonment shall_not_exceed_one-

. half of the largest fine, or one-half the longest

term of ‘imprisongpent prescribed for such of-

fense, or both.”’

This statute is not unique. In fact, it is merely a

restatement of the common-law.crime of conspiracy.

It is similar to the federal conspiracy statute,

— U-S.C. § 371, which\provides in part:

“If two or more persons conspire either to com-

mit any offense against the United States, or to

- defraud the United States, or any agency~ there.

sf in any manner or for any purpose, and one or —

more of such person's do any act to effect the ob-

ject of the conspiracy, each shall be fined not

more than $10,000 or imprisoned not more than |

five years, or both.” o

Basically, ‘there is very little to distinguish between

these two statutes. Both require a conspiracy be-

tween two or more people to commit a crime and

both further provide that one of the parties to the con-

spiracy must do an act to effect, or in furtherance

of, the object of the conspiracy.

165

As the Supreme Court. pointed out in Scales v.

Unitédd ae, aan, U. S. 203, 225,°81 S. Ct. 1469, 1484 a

(1961), the concept +of conspiracy “manifest[s] the ~—

more general principle that society, having the power

to punish dangerous behavior, cannot ‘be powerless

against those who work to bring about that behavior.” |

See ‘also Johnson v. Lee, 281 F. Supp. 650, 655 (D.

Conn., 1968). . aie

One of the plaintiff’s contentions ‘is: that-the word

“crime” in the Louisiana’ conspiracy Statute (a part

of the Louisiana Criminal Code) is not defined. But: a

LSA-R.S. 14:7, also a part of the Louisiana Criminal]

Code, states “a crime is that conduct. which is’ de-

fined as criminal in the Code or in other .acts of the

Legislature or in the Constitution of this State.’’ The

Reporter’s Gomment to 14:7 states that the are a

- criminal law -is purely: Statutory and that thete

are no other crimes than those defined in the Code or

other statutes of this. State.*! We see no constitution- _

al infirmity in defining “crime” in this manner. In,

fact, a definition of this sort is much.more precise

** It is well settled under the. Louisiana jurisprudence that

“[wle have in this state no common-law crimes. Nothing is

a crime which is not made so by express*statute,” State v.

Robinson, 143 La. 543, 78 So. 933, 937 (1918). “[I]t is well-

settled that no act or conduct, however reprehensible, is a

crime in Louisiana unless it -is defined and made a crime

. Clearly and unmistakably by statute.” State v. Sanford, 203

La. 961, 14 So. 2d 778, 781 (1943). In State v. Arkansas .-;

Louisiana Gas Company, 227 La. 179, 78 So. 2d 825, 827

(1955), the: Supreme Court of Louisiana said, “It is so axio-

matic, that citation of authority is unnecessary, that in -

Louisiana there are no common-law crimes, and that nothing

is a crime, no conduct can be held criminal, which is not made

so by statute and clearly described by. the language of its

“prohibition.” . at

“166

than a general definition, since there can be no crime

which is not found in Louisiana’s statutory law.

The plaintiff also contends that 14:26 is violative of

the First Amendment to the United States Constitu-

tion ‘because it punishes a person for merely express- |

' ing this thoughts about committing a crime. How-

ever, the statute does not punish, a person for saying.

he would like to commit a crime, but only for enter-

ing inta an “agreement or combination” with one.

or more other persons to commit a crime. Such an

agreement is much more than the mere expres-

‘sion of one’s thoughts; it is conduct which ledds di-

rectly to criminal consequences and against which ~

society has the right to protect ifself. We are of-the

~~ opinion, “therefore, that. plaintiff has demonstrated

no constitutional-invalidity to the Louisiana conspir-

acy statute. ‘

We believe that it is obviously improper to rule on |

the constitutionality of the numerous procedural stat-

utes challenged by the plaintiff. The plaintiff *is

not being prosecuted under these statutes so Zwick-

ler is inapplicable. Furthermore, what we have al-

ready said about the federal policy against the need--

less disruption of ordepfy state court criminal pro-

ceedings applies even more forcefully. The consti-:

tutionality of these statutes may properly be ruled

upon by the state court, and it should again be noted

that of the twelve provisions which the plaintiff is

challenging on constitutional grounds in‘ this proceed-

ing, he has questioned the validity of only three of

these laws in the state court proceeding.

‘17

Nor should we grant a declaratory judgment - de-

créeing that the Warren Report is binding upon all

courts of the. United States, including the Louisiana

State Court in which the prosecution is pending. The

same applies to the request that we order the ‘de-

fendant to furnish certain documents to plaintiff. No

authority has .been cited nor have we fotind any that

would. authorize this relief z as fo these requests. e2

Our adverse ruling to aaibttee should’ not be con-

strued as an intimation of any view “whatsoever on-

the merits of the pending criminal charge against

him. As a matter of law, plaintiff Shaw's request for

relief in the federal court’ is ‘premature, for. under our

system of federalism in the. circumstarces presented

here, he must first seek ‘vindication of his rights

in the state courts-.as.to this pending prosecution.

‘ *

The motion to dismiss, which we shave considered

as a motion for sumamary judgment, is granted and

the plaintiff’s suit is dismissed.

88 The plaintiff has also moved to compel some of the defendants

to answer certain questions asked them in the course of

depositions, and the defendants have moved to have all of the

defendants’ except Jim Garrison dropped from these proceed- ~

ings. However,. it is not necessary to rule on these motions

' since they Have become moot by virtue of our rulings on the

other issues in this case.

168

Date: J uly 23, 1968.

"ROBERT A. Reewionre, Jr.,

‘| UNITED STATES CIRCUIT»

‘ ' JUDGE

_FREDERICK J. R. HEEBE

UNITED STATES’ DISTRICT

JAMES A. COMISKEY | )

UNITED STATES DISTRICT. - 4

JUDGE | .*

. HEEBE, District Judge, concurs, ‘and will hand Ped por

a. concurring opinion.

‘e«<

169

_ APPENDIX C.

"UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NEW ORLEANS DIVISION

- CIVIL ACTION No. 68-1063, SECTION “B”

- CLAY L. SHAW,

Plaintiff,

versus

“JIM GARRISON, individually, and as District Attorney

for ‘the Parish of Orleans, State of Louisiana; and

JAMES L. ALCOCK, individually, and as Executive

Assistant District Attorney for the Parish-of Orleans, .

State of Louisiana, and CHARLES R. WARD, in-

dividually, and as an Assistant D’strict Attorney for

the Parish of Orleans, State of Louisiana, |

. Defendants.

Before AINSWORTH, Circuit Judge, and. HEEBE

and COMISKEY, District Judges.

PER CURIAM: hee ‘

In the unanimous decision of this Court on July 23,

1968, we decided that plaintiff Shaw’was not entitled

to an injunction against defendant District Attorney

Garrison, barring Shaw’s prosecution in the Louisi-

‘ana State Court for the commission of an alleged

crime against the State of Louisiana. Accordingly,

we ordered Shaw’s suit dismissed. We remain of that

view, and nothing has happened to change our opin-

ion, which we herewith reaffirm, that the suit should

_have been dismissed..

perree 170

However, plaintiff Shaw has now filed his notice of

appeal .to the United: States Supreme ‘Court, in ac-

cordance with applicable law, and has also fjled his

motion with this Court for a® injunction pending ap-

. peal, restraining further prosecution in the Louisi-

ana State Court until: his appeal can be disposed of

by the United States Supreme Court. In the mean-

while, we. are‘ informed that the pending State pros-.

_ against Shaw has been set for trial at the

ivistance of defendant Garrison,- on September 10,

1968. : ;

It is obvious that-Shaw’s appeal to the “United |

States Supreme Court cannot be. considered and dis-

posed of prior to September 10, 1968, and that unless

the prosecution. is stayed, Shaw’s appeal will be-

come moot without having a chance for its consider-

ation by the Urtited States Supreme Court. In ef-

fect, Shaw will thus ‘be ee, of an appeal from

“our decision.

- We have fully considered the .written response of

defendant Garrison, in opposition to plaintiff's mio-

tion. Nevertheless, we are of the view ‘that Shaw is

_ entitled to have his ‘appeal determined by..the Unit-

ed States ‘Supreme Court, under the circumstances

presented by this case, and that our ‘failure to grant

him an. injunction. against the State prosecution

pending appeal would deprive him of his right of

appeal since it would thereby become moot.

171

We have, therefore, entered the attached order en- -

joining the -prosecution pending Shaw’s appeal to the

United States Supreme Court.

3 _ - ROBERT A. AINSWORTH, JR. _ gs:

; UNITED STATES CIRCUIT, oe.

; FREDERICK J. R. HEEBE

UNITED STATES DISTRICT .

JUDGE — may

~ JAMES A. COMISKEY |

UNITED STATES —

J UDGE

_ Date: Aug. is, 1968.

—

(

taints tag sin

.172

UNITED STATES DISTRICT COURT.

EASTERN DISTRICT OF LOUISIANA -

NEW ORLEANS DIVISION

CIVIL. howson 3 No. 68- 1063, SECTION “B”

CLAY L. SHAW, &

Plaintiff, ~ .

versus :

JIM GARRISON, individually, and as. District Attorney

for the Parish of Orleans, State of Louisiana, and |

JAMES L. ALCOCK, individually, and as Executive

Assistant District Attorney for the Parish of Orleans, |

State of Louisiana, and CHARLES R. WARD, in-

dividually, arid as an Assistant District Attorney for

the Parish of Orleans, State of Louisiana,

} Ng Defendants.

ORDER GRANTING INJUNCTION PENDING APPEAL.

This cause came on to be further heard on motion

of plaintiff for an. injunction pending appeal, and it

appearing to the Court that the relief herein grant-

ed is necessary to preserve plaintiff's rights, pend-

ing appeal by the plaintiff to the Supreme Court of

the United States, for the reasons appearing in the

findings of fact and conclusions of law filed herewith,

IT IS ORDERED that, until such time as the plain-

tiff’s appeal has been dispésed of by the United States

Supreme Court, the defendants be and they are here-

by restrained and enjoined from further prosecution

of the case entitled “State of Louisiana vs. Clay L.

173

Shaw’’, No. 198- 059 of the Docket an the Criminal

District Court for the - Parish of Orleans, State of

Louisiana.

: eT ; ' - 0

New Orleans, Louisiana, this 13 day of August,

1968. - de

ROBERT A. AINSWORTH, JR.

FREDERICK J. R. HEEBE

JAMES A. COMISKEY

: JUDGES

MOTIOT

DISMIS

“1IPREME ¢

Sed Lg we ELI a IAL § (Age OI ag bye

OURT. 1h. &

upreme Court of the Unitel-Stdfekt®. E%

. OCTOBER TERM, 1968

——

No. 579

CLAY L. SHAW,

Appellant

versus

JIM GARRISON et al.,

Appellees

MOTION TO DISMISS OR AFFIRM

Eberhard P. Deutsch,

1800 Hibernia Bank Building,

New Orleans 70112,

_ Attorney for Appellees -

é H. Himel, Jr.,

rton T. Harrington, Jr.,

tsch, Kerrigan & Stiles,

Of Counsel -

CONTENTS

Page

Te ee Qo Tisesauewsus 1

WPUBRE oan c cn inccccscicccsceeessdssnenseasene 5

EE Pe renner ne vere pera r t 12

. AUTHORITIES .

Statutes:

Re: err rere rr rrr rrr rT Tr 7

_ of eee pigukccawenstess 6,12

=: Serre y Terr (Sieeah- <a

Louisiana Code of Criminal. Procedure, Article

RO, ee hich caed ceuey hereon : _*

Louisiana RS 14:26 . prctesteseesess Up es ones 7

Cases:

Abbott Laboratories vs Gradner, 387 US 136

(1967) ci oaks Diss raa eke Ree ROn ak on eis ‘ 7

Cameron vs Johnson, 390 US 611 (1968) ....... 9,12

Cleary vs Bolger, 371 US 392 (1963) .......... 6,7

Dombrowski vs Pfister, 380 US 479 (1965) . 9

Douglas vs City of Jeannette, 319 US 157 (1943) 13

Murdock vs Pennsylvania, 319 US 105 (1943) . 13

Oklahoma Gas Co. vs Oklahoma Packing Co., 292

0 ie errr Trae

Poresky, Ex parte, 290 US 30 (1933) .......... 13

Public Affairs Associates vs Rickover, 369 US

-- 111 (1962) aha ce canbe week oak eR eaen ee 4

Stefanelli vs Minard, 342 US 117 (1951) ....... §

Thompson vs Whittier, 365 US 465 C ) re 13

Zwickler vs Koota, 389 US 241 (1967) ......... 8

Other: ae

- Moore’s Federal Practice 10. reer rrr 7.

Reporter’s Comment following Louisiana RS

: . Seer reer re re 7

So ee : - eA ermal rect

‘Supreme Court of the United States

OCTOBER TERM, 1968 )

No. 579.

CLAY L. SHAW,

a Appellant

versus

JIM GARRISON et al.,

Appellees

MOTION TO DISMISS OR AFFIRM

Appellees respectfully move that the within ap-

peal be dismissed for want of a substantial Federal

question, or that the judgment of the District Court

be affirmed on the ground that it is manifest that

the questions presented are so unsubstantial as not

to need further argument. :

Statement |

Because of the diffuse nature of the statement of:

facts in appellant’s jurisdictional statement, appel-

lees take. the liberty of restating the essential facts

herein, briefly and simply. :

eS ~

On March 1, 1967, appellant was arrested on a

charge of conspiring to murder President John F.

Kennedy, in violation of the Louisiana criminal-con-

spiracy statute. Complaint, Article 5. Although his

‘prosecution on this non-capital charge could have been

instituted by a simple information filed ‘by the Dis-:.

trict Attorney, , he proceeded on a mote formal, de-. .

- liberate, course’ “in view of the underlying and sur-

rounding circumstances of the case. - ;

The District Attorney first took the unusual’ step

of requesting a preliminary examination. Complaint,

Articles 6, 13. While such a request may be made |

either by the State or by the defendant under Article

292 of the Louisiana Code of Criminal Procedure,

such requests are ordinarily made by defendants.

At the conclusion of a three-day hearing, in which eye-

witness evidence of appellant’s participation in the

asserted conspiracy was presented, a panel of three

judges of the Criminal District Court held unani,

mously that probable cause had been established to

justify criminal process against appellant. Com-

plaint, Articles 13, 17. The transcript of the hearing

is in the record. |

: c" ;

Despite this judicial: confirmation of his~ position,

the District Attorney ‘still refrained from proceed-

ing by mere information, Instead, he presented the

matter to the Parish grand jury, which returned a

true bill indicting appellant _ on the conspiracy

charge.’ Complaint, Article: 18 and Exhibit A. The

indictment was returned on March 22, 1967.

On August 1, the District Attorney moved the

court to fix a trial date; and appellant then moved

for a continuance or change of venue on the ground

that the case had been given. undue publicity. The .

District Attorney consented to a continuance to Feb-'

Tuary 1968, almost a year after the initial arrest.

Complaint, Articles 23, 28, 30 and‘Exhibits G and J.

In February 1968, appellant again moved for a

change of venue. After what the District Court be-

low aptly described as.'an. “‘extensive evidentiary

hearing” in the course of which more than eighty

witnesses testified, appellant’s motion was denied on

April 4. Complaint, Articles 31, 34 and Exhibits K

and M. | ae ge ak

Appellant sought review on certiorari by the Su-

“preme Court of Louisiana, which, on April 23, - de-

nied. the application, stating: “This Court will not

. interfere with orderly proceedings in the trial court,

in the absence of a showing of irreparable injury.

Relator has a remedy. by appeal in the ‘event of con-

viction.” Complaint, Articles 35-37;. 209 So.2d 37 (1968).

The District Attorney then set the trial for June

11, 1968. Complaint, Article 115. On. May 27, appel-

lant filed this suit in the United States District Court

for the Eastern District of Louisiana, against the

District Attorney and two of his assistants, seeking

to enjoin them from proceeding with the criminal

prosecution in the State court. A temporary restrain-

ing order was granted.

=, © ° i

: : ° .

_. The prolix, 60-page, 125-article complaint and

amended complaint allege that many of the provi-

sions of Louisiana’s Code of Criminal Procédure—in-

cluding the provisions requiring secrecy of grand

jury proceedings (Complaint, Article 60), and per-

mitting excuse of women from jury duty (Complaint,

.Articles 110, 114)—are unconstitutional, and that

-Many~occurrenices in the State’s prosecution of ap-

pellant—inCluding the appointment of a member of

a private segregated athletic club as foreman of the -

- grand jury (Complaint, Articles 107-108), and ex-

clusion of all 26 volumes of the Warren Commission

Report from evidence in the preliminary examina-

tion (Complaint, Article 102)—have infringed his con-

stitutional rights. Complaint, Articles 5, 7, 9, 19, 24,

26, 40-63, 85-89, 106-15, Amended Complaint, Articles

117-19, 122.

The complaint also seeks a declaration that Lou-

isiana’s criminal-conspiracy statute is -unconstitutionally

vague. Complaint, Articles 64-65. |

Finally, the complaint seeks Federal-court injunc-

tive relief against further prosecution of the crim-'

inal proceeding in the State court, on the ground

that the prosecution is designed ‘solely to invade

First-Amendment rights by intimidating not only ap-

- pellant,- but “any and all individual citizens who

disagree with (the defendants’) theories as to the as-

‘sassination ‘of President Kennedy’’, and is ‘‘not mo-

tivated by any expectation of securing a valid conviction”.

Amended Compiaint, Articles 120, 122(a), 125.

mt cae | wink eee

Po eS

)

But, in the event of conviction, says the complaint,

appellant would be ¢aused irreparable injury from at-

tendant publicity and possible incarceration without bail

pending appeal. Complaint, Article 41.

This suit for injunction was heard before a three- -

judge District Court on defendants’ motion to dis-

miss, treated by the Court as a motion for sum-

mary judgment. On July 23, the Court rendered its

unanimous decision dismissing the action, and the

District Attorney fixed the trial of the State-court

criminal ——— for ass eermaal 10.

On appellant’s application, the Court ~ below,

on August 13, entered an order enjoining the prose-. .

cution of the State-court criminal action pending dis-

position of this appeal, stating that “‘nothing has

happened to change our opinion, which we herewith

reaffirm, that the suit should have been dismissed’’,

‘but that ‘nevertheless, we are of the view that Shaw

is entitled to have his appeal determined by the Unit-

ed States Supreme Court, under the -circumstances pre- -

sented by this’ case, and that our fajlure to grant him

an injunction against the State prosecution pending

appeal would deprive him of his right of appeal since

it would thereby become moot”.

p | Argument |

The correctness of the judgment below is’ demon-

strated unanswerably in the District ,Court’s exhaustive

opinion. :

As to the alleged procedural infirmities in the

- prosecution of appellant, this Court has repeatedly

held that state-court prosecutions will not be en- |

joined in the Federal courts on this ground [Cleary —

.vs Bolger, 371 US 392 (1963); Stefanelli vs Minard,

342 US 117 (1951)]: “If we were to sanction this ‘in-

tervention, we would expose every State criminal |

prosecution to insupportable disruption. Every ques-

tion of procedural due process of law—with its far-

flung and undefined range—would invite a flanking -

movement against the system of State courts by re-

sort to the federal forum, with review if-need be to

this Court, to determine the issue. Asserted un'con-

stitutionality in the impaneling and selection of the

grand and petit juries, in the failure to appoint coun-

sel, in the admission of a confession, in the creation

of an unfair trial atmosphere, in the misconduct of

the trial court—all would provide ready opportuni-

ties, which conscientious counsel might be bound to

employ, to subvert the orderly, effective prosecu-

tion of local crime in local courts. To suggest these

difficulties is to recognize their solution.” Stefanelli

vs Minard, supra, 342 US at 123-24; quoted with ap-

proval in Cleary vs Bolger, supra, 371 US at 397. |

28 USC §2283 declares that “a court of the Unit-

ed States may not grant an injunction to stay pro-

ceedings in a State court except’.as expressly au-

thorized by Act of Congress, or where necessary in

aid of its jurisdiction, or to protect or effectuate its

judgments”. An accused whose rights are infringed .

by procedural irregularities in a state court has

ample .remedies by appeal, and through state and

Federal habeas-corpus proceedings: “To permit such

claims to be litigated collaterally as is sought here,

would in effect frustrate the deep-seated federal

policy against piecemeal review.’ ” Cleary vs Bol-

ger, Supra, 371 US at _—

The District Court’s holding that the Louisiana

criminal-conspiracy statute is constitutional is unas-

sailable. This statute is modeled on the Federal con-

spiracy statute (18 USC §371; see Reporter’s" Com-

ment following Louisiana RS 14:26), and — codi-

fies the common-law crime.

The District Court was also unassailably correct

in declining to declare invalid the many provisions

of the Louisiana Code of -Criminal Procedure at-

tacked by appellant. The jurisdiction conferred by

the Declaratory Judgment Act is discretionary in any

event. Public Affairs Associates vs RicKover, 369

US 111, 112 (1962). This discretion is properly to be

exercised by deferring decision to another court

already seized of the issue [Abbott Laboratories vs .

Gradner, 387 US 136, 155 (1967), 1A Moore’s Federal

Practice {0.220]. -To permit such claims to be liti-

gated collaterally in a Federal declaratory action

would be just as disruptive and frustrating as to

permit the state-court prosecution to be enjoined di-

rectly.

Appellant seeks to rely on Zwickler vs Koota, 389

US 241 (1967), in which ths Court reversed a Dis-

trict-Court refusal to pass on the constitutionality of

a state penal statute; but that decision was rightly

distinguished by the District Court in the instant

case.. In Zwickler there was no pending state-court

prosecution in which the issue could be resolved,

and the plaintiff sought adjudication of the validity

of a substantive statute under which his prosecu-.

tion was threatened, which he contended was uncon-

stitutional on its face .as an infringement of First-

Amendment rights, and which was not susceptible of

state-court construction obviating the constitutional .

issue.

In the case at bar, the innumerable procedural

issues‘ raised by appellant can be (and most have

already been) raised and settled in the pending

prosecution itself. This phase of the case involves,

not the essential constitutionality of the substantive

statute under which appellant is charged, but a

wholesale attack on multiple “procedural provisions,

which can be determined as to each, only in the

context in which it ‘has been, or may be, raised and

applied. 3

é D

- ~~

_ Finally, appellant seeks to bring this ‘case with-

in the ambit of Dombrowski vs Pfister, 380 US 479

(1965), in which this Court carved out an exception to

the long- standing rule of Federal non-interference in

— —, court criminal a

The rationale and limitations of Dombrowski are

stated in this Court’s later opinion in Cameron vs *

Johnson, 390 US 611, 618-20 (1968): ‘‘The prosecu-

tions there begun and‘ threatened were not, as here,

for violation of a statute narrowly regulating con-

duct which is intertwined with expression, but for

alleged violations of various sections of excessively

_ broad Louisiana statutes regulating expression it-

self. . . . Despite state court actions quashing ar- °

rest warrants and” suppressing evidence purportedly

seized in enforcing them, Louisiana officials contin-

ued to threaten prosecutions. of Dombrowski and his

co-appellants under them. In that context, we held

that a case of ‘the threat of irreparable injury re-

quired by traditional doctrines of equity’ was made

out . . . . We held further that the sections of the

[Louisiana] Subversive Activities and Communist

Control Law (for alleged violations of which indict-

ments had been obtained while the case was pend-

ing in the federal court) were patently -unconstitu-

tional on their face . . ... In short, we viewed

Dombrowski to be a case presenting a situation of |

the ‘impropriety of [state officials] invoking the

statute in bad faith to ‘mpese continuing harassment

oe" . \

in order to discourage appellants’ activities .

. In contrast,*the District Court expressly found

in this case ‘that theke was no harassment, intimida-

tion, or oppression of these complainants in their ef-

forts to exercise their constitutional: rights, but they ,

were arrested and they are being prosecuted in

good faith ... . . Any chilling “effect on the

picketing as a form of protest and expression that flows

from good-faith enforcement of this valid statute would

not, of course, constitute that enforcement an im-

permissible invasion of protected freedoms.

Appellants’ case ‘that there are ‘special circum-

stances’ establishing irreparable injury sufficient to

justify federal intervention must therefore come

down to the proposition that the statute was en-

forced against them, not because the Mississippi of-

ficials in good faith regarded the picketing as vio-

lating the statute, but in bad faith ‘as harassing

appellants’ exercise of protected expression with no

intention of pressing the charges or with no expec-

tatien of obtaining convictions, knowing that appel-

lants’ conduct did not violate the statute. We agree

_ with the District Court that the record does not es-

. tablish the bad faith charged.”

The case at bar is governed by Cameron, not by

Dombrowski. -The substantive statute here at issue

does not regulate expression itself, but, at best, ver-

bal acts and conduct intertwined therewith (a con-

spiracy resulting from conversation among the con-

spirators). The statute is patently .valid; not uncon-

stitutional, on its face. Appellant is being prosecut-

ed, not in despite of state-court. rulings indicating

that the prosecution is unwarranted, but in pursu-

ance of a_ state-court preliminary finding of prob-

able cause confirmed by a grand jury indictment.

Appellant’s conclusionary allegations of bad faith

and unfounded harassment with no intention of pros-

ecution or expectation of conviction, founder on the

undisputed facts that the District Attorney refrained

from prosecuting ‘by information in favor of submit-.

ting his evidence first to the court on preliminary

which confirmed the existence of probable cause,

and that the District Attorney has since made

repeated efforts to afford appellant his constitution-

al right to a speedy trial—as well as by appellant’s

own further insistence that he is being put in jeop- .

ardy of conviction. . |

Appellant’s contention that he has . been singled

press comment favorable to the Warren Commis- -

sion Report, is patently artificial in light of his coun-

sel’s admission to the District Court that appellant

has never taken a public position as to the’ validity

_ of the Report’s conclusions.*

*“During the oral hearing. on this motion, counsel for plaintiff

informed the Court that the plaintiff has never publicly taken _

_ a stand either for or against the Warren Report, nor has he

made any public statements about his theories on the assas-

' sination of President Kennedy. It is clear that the prosecu-

tion was not instituted for the purpose of discouraging the

plaintiff in the exercise of his First Amendment rights.”

Opinion of the District Court, page 1}.

In this case, as in Cameron vs Johnson, it is un-.

necessary to reach the question whether injunction —

actions brought under the Civil Rights Act (42 USC

§1983)@ form an exception. to the prohibition of 28

USC §2283, since it is clear that no valid ground for

restraint of the State-court prosecution has been as-

serted by appellant in any event.* |

: Conclusion

The burden of appellant’s complaint is simply. that

. he is being subjected to the naturally galling incon-

veniences that are the lot of every person so unfor-

tunate as to be the subject of a criminal prosecution.

These are part of the “injury incidental to every

proceeding brought lawfully and in goed faith”

- (Cameron vs Johnson, 390 US at 618); and do not

justify the intervention of a Federal court in contra-

vention of 28 USC §2283. 3

On the contrary, this Court has consistently held

that even unconstitutionality of a statute under which

a prosecution has been instituted does not warrant

. a Federal injunction, for “no person. is immune from

prosecution in good faith for his alleged criminal

acts. Its imminence, even though alleged to be in

violation of constitutional guarantees; is not a

ground for equity. ‘relief since the lawfulness or con-

’ stitutionality of the statute or ordinance on which

the prosecution is based may be determined as

* This question did not arise in Dombrowski because the injunc-

tion action in that case was brought before the Chrestoned

State-court prosecution had: been commenced.

readily in the criminal case as in a suit for an in-

junction.” Douglas vs City of Jeannette, 319 US 157,

163 (1943), refusing to enjoin a prosecution for vig-

lation. of an ordinance held unconstitutional the

same day in Murdock vs Pennsylwania, 319'US 105 (1943).

The Federal questions presented “by appellant’s

complaint ‘are so clearly unsubstantial as to negate

the jurisdiction of the three-judge Court below [“it

is essential to. (such) jurisdiction that a substantial

federal question should be presented”, Ex parte

Poresky, °290 US 30, 31 (1933)], and hence that. of

this Court over this appeal. Oklahoma Gas Co. ‘vs

Oklakioma Packing Co., 292 US 386, 392 (1934);

Thompson vs Whittier, 365, US 465 (1961).

Tt is respectfully submitted that the appeal should

be dismissed or that the judgment of the District

Court should be affirmed.

Eberhard P. Deutsch,

. Attorney for Appellees

René H. Himel, Jr.,

Overton T. Harrington, Jr., .

Deutsch, Kerrigan & Stiles,

Of Counsel

October, 1968

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.