# Appendix — Shaw v. Garrison > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1196%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1968 - **Citation:** 393 U.S. 220 ## Text 113 | APPENDIX A. ~~ _- UNITED STATES DISTRICT COURT ° : | EASTERN DISTRICT OF LOUISIANA ) NEW ORLEANS DIVISION 4 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. y, 117 ° as 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 (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 . 10 11 “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 ee 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) 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 2 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 ° oe “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 es 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 | .* id . HEEBE, District Judge, concurs, ‘and will hand Ped por a. concurring opinion. ‘e«< 169 _ APPENDIX C. e. "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 r ? 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. — ( 4 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 Re O1 De 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-