Appendix — Garrison v. Shaw

Supreme Court brief1972

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Ar the United States District Court for the

3 i" gostera District of Lousiana

d . 1972)

‘Betore WISDOM, GODBOLD, and RONEY,

Qt Judges

_ WISDOM, Circuit Judge: In this case the district

2 CLAY 1. SHAW v. JIM GARRISON, ETC.

causé great and irreparable injury to Shaw and en-

Jomed the district attorney and his staff “from further

prosecution of the pending criminal action“. 328

F. Supp. at 400. We affirm: the findings were not clear-

ly erroneous; they meet the “special circumstances”

requirements of Younger v. Harris, 1971, 401 U.S. 37,

91 S.Ct, 746, 27 L.Ed.2d 669.

The district court held also that Title 42 U.S.C. $1983

was an express exception to the anti-injunction statute,

28 U.S.C. §2283, The Supreme Court has now con-

firmed the correctness of this view. Mitchum v. Foster,

June 19, 1972, 40 L. W. 4737.

I. The Facts

Clay Shaw was active in business and civic affairs

in New Orleans and for twenty years was Managing

Director of the International Trade Mart, an organiza-

tion for the promotion of business and cultural activi-

ties between New Orleans and foreign countries. The

prosecution for perjury grew out of the State’s unsuc-

cessful attempt to convict Shaw of conspiracy to as-

Sassinate President John F. Kennedy. The State

charged that Shaw, who took the stand in his own de-

fense, perjured himself when he denied having known

either Lee Harvey Oswald or David Ferrie, the alleged

co-conspirators in the assassination plot. The plain-

tiff-relies, in part, on the fear of multiple prosecutions,

that is, the first was for conspiracy to assassinate Pres-

ident Kennedy; the second was for perjury; a third

and fourth may be in store for him. The district court

CLAY L. SHAW v. JIM GARRISON, ETC.

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ted. Less than forty-eicht hours later,

shot and killed the accused assassin, Lee

¢y Oswald. Oswald had spent the summer of 1963

in New Orleans. Learning of this, the district attorney

for Orleans Parish conducted an investigation of Os-

wald’s activities in New Orleans. As a result of this

investigation, David Ferrie, allegedly an acquaintance

of Oswald’s, was arrested and turned over to the F. B. I.

for questioning.* Ferrie died in February, 1967.

CLAY L SHAW v. JIM GARRISON, ETC. 5

Gerrison first interviewed Shaw in connection with

the investigation in December 1966. In his testimony

im the district court Gerrison offered no explanation

for the initial interrogation of Shaw. On March 1, 1967,

Shaw was arrested and charged with conspiracy to

assassinate President Kennedy.

At the time of Shaw's arrest, according to James

L. Alcock, Garrison's chief prosccuting attorney, the

State's only witness against Shaw was Perry Raymond

Russo. Garrison learned about Russo, and found him

in Baton Rouge, Louisiana, as the result of a news-

paper article in which Russo was quoted as having

made several statements concerning David Ferrie. Af-

ter Assistant District Attorney Sciambra interviewed

Russo in Baton Rouge, Garrison had Russo brought

to New Orleans where he was given sodium pentothal,

subjected to hypnosis, and again interrogated. Two

days later, Shaw was arrested.

On March 1, 1969, a unanimous state court jury, after

fifty-five minutes of deliberation. found Shaw not guilty

of the charge that he conspired to assassinate Presi-

dent Kennedy. The verdict culminatea a forty-day

trial On March 3, 1969, the next working day, Garri-

son, signed an information charging Shaw with the

crime of perjury. The information charged that Shaw

perjured himself when, in testimony at the conspiracy

trial, he denied having known David Ferrie or Lee

Harvey Oswald.

Il. The Proceedings Below

On January 18, 1971, the date of the state court per-

jury trial, Shaw applied to the United States District

6 CLAY L. SHAW v. JIM GARRISON, ETC.

Court for the Eastern District of Louisiana for a tem-

porary restraining order enjoining Garrison from pros-

ecuting the perjury charge. Shaw invoked jurisdiction

under 28 U $$ 1343(3) and 1343(4) for a cause

of action based on 42 USC. 1 and 1985 and

“under the Constitution of the United States”. Shaw

alleged that he suffered and will continue to suffer

“grave and irreparable injury” as the result of the

state perjury prosecution brought in “bad faith” and

“in furtherance of Garrison's scheme of harassment

and intimidation of [Shaw]”. The district court re-

fused to issue a temporary restraining order, and Shaw

applied to this Court for emergency relief. This Court

ordered the district court to hold a hearing on Shaw's

request for injunctive relief. Meanwhile, the state case

was continued until January 20, 1971. On remand, the

district court issued a temporary restraining order

The hearing lasted three days. The district court re-

ceived fifty-five exhibits and heard eighteen witnesses

on behalf of Shaw. Garrison offered no proof.*

100

CLAY L. SHAW v. JIM GARRISON, ETC.

III. The Ruling Below

On May 27, 1971, the district court issued a per-

manent injunction “restraining Jim Garrison, District

Attorney for the Parish of Orleans, his assistants, em-

ployees, agents and all persons in active concert and

participation with him from further prosecution of the

pending criminal action entitled “State of Louisiana

v. Clay L. Shaw, No. 208-260". 328 F. Supp. at 404

In a thoroughly considered opinion the experienced dis-

trict judge made detailed findings of fact and conclu-

sions of law. Characterizing the facts as “unique and

bizarre”, the court held: [Tihe perjury charge was

brought in bad faith and for purposes of harassment

... Such bad faith constitutes irreparable injury which

is great and immediate”. 328 F. Supp. at 400. Thus,

the court concluded that the ‘special circumstances’

requirements of Vounger were met and that Shaw

was entitled to relief. 328 F. Supp. at 393.

The district court based its findings of bad faith and

harassment on the history of Garrison’s pursuit

of Shaw, including the events leading to the state con-

spiracy trial as well as the events incident to the state

8 CLAY L. SHAW v. JIM GARRISON, ETC.

perjury prosecution. As to Garrison's prosecution of

Saaw for conspiracy, the district court found bad faith

and harassment on the following facts:

(1) The court found a “serious question concerning

the basis for Garrison’s decision” to investigate the

assassination of President Kennedy.

Apparently, his jurisdiction was based on Os-

wald's activities in New Orleans in the sum-

mer of 1963. However, it is strange indeed that,

nearly there years after the assassination,

Garrison would decide to undertake an inves-

328 F. Supp. at 394. William A. Gurvich, an experienced

investigator and Executive Director of an established

detective agency in New Orleans, testified that Garri-

son solicited his help in conducting the investigation.

He worked on this project for about six months. Gur-

vich testified that he resigned because he believed the

investigation to be a “fraudulent, criminal act”.

(2) There was no basis for Garrison’s initial inter-

rogation of Shaw. “Just how [Shaw] ... was first

selected to be interviewed by [Garrison] ... when

he was not a suspect is another unanswered question

in this case. (Garrison) . . . offered no evidence to

show any basis or cause for his office's interrogation

of [Shaw] ... concerning such a shocking crime”.

328 F. Supp. at 394.

CLAY L. SHAW v. JIM GARRISON, ETC. 9

(3) ‘The extreme measures the state resorted to in

extracting information from Perry Raymond Russo

and the use of his testimony at the trial were incom-

patible with the American System of Justice. Russo

‘was given sodium pentothal and subjected to hypnosis

to “obtain a degree of corroboration” of what Russo

had allegedly related to Garrison’s assistant about a

conspiratorial meeting. Yet the report of Garrison’s

assistant, Sciambra, who interviewed Russo, made no

mention of any conspiratorial meeting involving Shaw.

The district court stated:

It should be borne in mind that the memoran-

dum which [Garrison's assistant] ... wrote

on his return from Baton Rouge did not men-

tion any such meeting ... {S}ubstantial

doubts are raised regarding the validity and

objectivity of the state’s case when a prose-

cuting attorney resorts to the use of such ex-

traordinary tactics as were employed by Gar-

rison on Russo. A fair inference to be drawn

is that these ex parte procedures were used

to implant into Russo’s mind a story implicat-

ing the plaintiff in an alleged conspiracy plot.

This could have been accomplished by post-

hypnotic suggestion. This inference is support-

ed by the fact that’ Garrison immediately

moved to arrest and charge Shaw based sole-

ly on Russo’s questionable, vague story. Such

hasty action on the part of the defendant with-

out submitting the matter, at that time, to the

grand jury demonstrates ulterior motives.

10 CLAY L SHAW v. JIM GARRISON, ETC.

328 F. Supp. at 395. Russo’s testimony at trial was

significantly different from the testimony he gave at

the preliminary hearing. For instance, at the prelim-

inary hearing Russo stated unequivocally that Shaw

was present at a conspiratorial meeting; in the trial

Russo was unable to identify Shaw as having been pres-

ent at the alleged meeting.“ In the perjury trial Russo

invoked his Fifth Amendment privilege when asked

the precise questions he had previously answered in

state court proceedings. The district court concluded:

Normally no inference can be drawn when

one invokes a right secured to him by the Con-

SLéeutenant O’Donnell a member of the New Orleans Police Depart-

ment for nineteen years testified that he attempted to give

Russo a lie detector test

It was not successful. However, O’Donnell stated

he took the machine’s attachment from Russo’s body

and continued on with the interview. According

O'Donnell, Russo told him that he did not

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CLAY L SHAW v. JIM GARRISON, ETC. 1

stitution, However, in the circumstances of

__this case the court believes that it can and it

_ does draw the narrow inference from Russo’s

action, that even today, he at least has sub-

_ stantial doubts as to the truthfulness of the tes-

timony he gave in state court.

328 F. Supp. at 396.

(4) Garrison used funds received from private

sources to pursue his investigation of Shaw. A group

known as “Truth or Consequences” was formed in Feb-

ruary 1967 to solicit and contribute funds to Garrison’s

investigation. “The evidence is overwhelming that

these funds were used in preparation for Shaw’s con-

spiracy trial”. 328 F. Supp. at 397. The group,

all friends of Garrison, made it clear that they ex-

pected results. Garrison gave them results in the form

of the prosecution of Clay Shaw — for conspiracy and

for perjury. —

(5) The manner of Shaw's arrest is described by

12 CLAY L SHAW v. JIM GARRISON, ETC.

tentionally used the arrest for his own pur-

poses, with complete disregard for the rights

of Clay Shaw.

328 F. Supp. at 399.

(6) Garrison's pretrial conduct showed a · total dis-

regard of Shaw’s rights”. 328 F. Supp. at 399. He held

press conferences and issued press releases during the

pretrial period. Garrison even released information to

the press that he had refused to give to Shaw. “(T]he

action of Garrison in releasing

while denying it to Shaw

F. Supp. at 399.

information to the press

clearly reveals that. [Gar-

rison] was not prosecuting Shaw in good faith”. 328

The district court also found bad faith and harass-

ment in the events relating to the perjury prosecution.

‘CLAY I. SHAW v. JIM GARRISON, ETC. 13

() No witness who testified at the hearing before

instance where a defendant who took the stand and

was acquitted was later charged with perjury.

(2) No perjury charges.were filed against State wit-

nesses although their testimony at the conspiracy trial

contradicted their testimony previously given.

(3) .The chief prosecuting attorney at the state con-

spiracy trial testified that “at the time the perjury

charge was filed there were no witnesses available

other than those who were available at the conspiracy

trial”. 328 F. Supp. at 400.

(4) Garrison has a “significant financial interest

in the continued prosecution of Clay Shaw”:

Garrison's book, Heritage of Stone, concerns

his investigation of President Kennedy’s assas-

sination. Defendant also has a contract to

write three additional books. It is obvious that

the sale of defendant’s book may be promoted

by the publicity resulting from the continued

prosecution of Clay Shaw. It provides a means

whereby defendant himself may profit, and al-

so repay the substantial obligations owed to

one of his financial backers. The court finds

that this desire for financial gain is among the

motives which prompt the continued prosecu-

tion of Clay Shaw.

328 F. Supp. at 400.

14 CLAY L. SHAW v. JIM GARRISON, ETC.

as he was in the first. Moreover, considering also the

extreme lengths to which Garrison went for the pur-

pose of “proving” his case, it is a fair inference that

he well knew that Russo would take the Fifth.

IV. Younger v. Harris: Comity Restraint on

Injunctions Against Pending State Criminal

Prosecutions.

Younger v. Harris and its companion cases define

the contours of the “national policy forbidding federal

courts to stay or enjoin pending state court proceed-

ings except under special circumstances”. 401 U.S. at

41.“ As this Court has previously noted,

JIM GARRISON

ETC.

CLAY L. SHAW v.

Younger and its accompanying opinions,

while significant, do not represent startling

The opinion does not purport to extend be-

new doctrines with respect to the proper role

yond this traditional realm of comity and re-

of a federal court in our system of fed-

quire across-the-board abdication of federal

decision making power in all manner of cases.

Younger, the Supreme Court defined the prerequisites

— “special circumstances” — which must be present

Hobbs v. Thompson, 5 Cir. 1971, 488 F.2d 456, 465. In

33 287

16 CLAY L SHAW v. JIM GARRISON, ETC.

tion. In addition, however, the Court also made

clear that in view of the fundamental policy

against federal interference with state crim-

inal prosecutions, even irreparable injury is

insufficient unless it is “both great and im-

mediate”.

401 US. at 46.

In the present case we are asked to clarify the mean-

ing of “irreparable injury“. Shaw argues that a show-

ing of bad faith prosecution or prosecution for the pur-

pose of harassment establishes the requisite irrepara-

ble injury. Garrison, on the other hand, contends that

a showing of bad faith or harassment is insufficient;

he argues that irreparable injury must be independent-

ly established. We hold, as the language of Younger

makes clear, that a showing of bad faith or harass-

ment is equivalent to a showing of irreparable injury

for purposes of the comity restraints defined in Young-

er, because there is a federal right to be free from

bad faith prosecutions.” Irreparable injury need not

be independently established.

CLAY L. SHAW v. JIM GARRISON, ETC. 17

In Younger, the Court repeatedly spoke of “good

faith” and “bad faith” prosecution in such a manner

as to indicate that a showing of bad faith was suffi-

cient, although not necessary,® to establish irrepara-

ble injury. Quoting from Watson v. Buck, 1941, 313 U.S.

387, 400, 61 S.Ct. 962, 85. L. Ed. 1416, 1423, citing Beal

v. Missouri Pacific Railroad Corp,, 1941, 312 U.S. 45,

61 S.Ct. 418, 85 L. Ed. 577, 579, the Court said, No

citizen or member of the community is immune from

prosecution, in good foith, for his alleged criminal

*There may, of course, be extraordinary circumstances in which

the necessary irreparable injury can be shown even in the

absence of the usual prerequisites of bad faith and harassment.

For example, as long ago as the Buck case, supra, [Watson v.

Buck, 1941, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416] we in-

dicated:

‘It is of course conceivable that a statute might be

flagrantly and patently violative of express constitu-

tional prohibitions in every clause, sentence and

paragraph and in whatever manner and against whom-

ever an effort might be made to apply it.’

313 U.S. at 402, 61 S.Ct. 962.

Other unusual situations calling for federal intervention

might also arise, but there is no point in our attempt-

ing now to specify what they might be.

99 N 8 U.S. at

18 CLAY L. SHAW v. JIM GARRISON, ETC.

acts’.” 401 U.S. at 46 (emphasis supplied), Similarly,

quoting from Douglas v. City of Jeannette, 1943, 319

US. 157, 164, 63 S.Ct. 877, 87 L.Ed. 1324, 1330, the Court

stated, It does not appear from the record that peti-

tioners have been threatened with any injury other

than that incidental to every criminal proceeding

brought lawfully and in good faith ...’” 401 US. at

47 (emphasis supplied). Also, in speaking of Dombrow-

ski v. Pfister, 1965, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d

22, the Court said that the circumstances presented

in that case “as viewed by the Court sufficiently estab-

lish the kind of irreparable injury, above and beyond

that associated with the defense of a single prosecution

brought in good faith, that had always been considered

sufficient to justify federal intervention”. 401 U.S. at.

48 (emphasis supplied).

The District Court, however, thought that the

Dombrowski decision substantially broadened

the availability of injunctions against state

criminal prosecutions and that under that de-

' cision the federal courts may give equitable

relief, without regard to any showing of bad

faith or harassment, whenever a state statute

is found “on its face” to be vague or overly

broad, in violation of the First Amendment.

401 U.S. at 40 (emphasis supplied).

Speaking of Cameron v. Johnson, 1968, 390 U.S. 611, 88 S.Ct.

2038, 20 L'a. 34 182, the Court said:

CLAY L. SHAW m GARRISON, ETC. 18

More importantly, in its discussion of the facts of

the Younger case, the Court made clear the sufficiency

of a finding of bad faith or harassment:

There is no suggestion that this single prosecu-

tion against Harris is brought in bad faith or

is only one of a series of repeated prosecutions

to which he will be subjected... There may,

requisites of bad faith and harassment. ...

Harris has failed to make any showing of bad

faith, harassment, or any other unusual cir-

cumstance that would call for equitable relief.

401 U.S. at 40-84 (emphasis supplied). Mr. Justice Stew-

art, joined by Mr. Justice Harlan, concurred, stating,

“A threat of this nature [irreparable injury both great

and immediate] might be shown ... if there has been

bed faith and harassment — official lawlessness —

in a statute's enforcement ...” 401._U.S. at 56. Similar-

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The special circumstances when federal in-

tervention in a state criminal proceeding is

permissible are not restricted to bad faith on

the part of state officials or the threat of mul-

any reason the state statute being enforced is

tiple prosecutions. They also exist where for

unconstitutional on its face.

401 U.S. at 58.0

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by the defendant came during the period

after Shaw’s arrest and prior to his trial.

Robertson's notes at the bank are dated

November 9, 1967 and January 17, 1968.

Shilstone testified that of the $1200 he

Perhaps of all the evidence presented

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arrest and his subsequent prosecution on

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interest in the continued prosecution of

Clay Shaw. Garrison’s book, Heritage

of Stone, concerns his investigation of

President Kennedy's assassination. De-

fendant also has a contract to write three

additional books. It is obvious that the

sale of defendant's book may be promoted

by the publicity resulting from the con-

tinued prosecution of Clay Shaw. It pro-

vides a means whereby defendant himself

may profit, and also repay the substan-

tial obligations owed to one of his finan-

cial backers. The court finds that this

desire for financial gain is among the

motives which prompt the continued

prosecution of Clay Shaw.

Finally, this court must make another

comment concerning the facts of this

case. In his book, Heritage of Stone, de-

fendant Garrison makes several refer-

ences to the Dreyfus case. When we con-

sider Garrison's actions toward Shaw it

is small wonder that in writing his book

that classic example of injustice came to

his mind.

Considering all of the evidence ad-

duced at the hearing of this matter the

court finds that the pending prosecution

was brought in bad faith and that such

bad faith constitutes irreparable injury

which is great and immediate. The

court further finds that this is a case of

exceptional and extremely limited cir-

cumstances.

Having found bad faith that constt-

tutes irreparable injury which is both

“great and immediate” this court finds

itself faced with Mr. Justice Stewart's

“negative pregnant.”* Where “excep-

tional and extremely limited circum-

stances” are found, is intervention by

way of injunction subject to any further

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APPEEDIX C

Ynited States Gout of A hruln

FoR THE Ferm CIRCUIT

— — —

October Term, 19 71

—ͤ ͤ ͤ — —

No. 71-2422

D. c. Docket No. CA 71-135

CLAY L. SHAY,

Plaintiff-Appelliee,

versus

JIM GARRISON, Individually,and as

District Attorney for the Parish of

Orleans, State of Louisiana,

Defendant-Appellant.

e the United States District Court for the

e. Louisiana

Before WISDOM, GODBOLD and ROMNEY, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Cotrt for te Eastern

District of Louisiana, and was argued by counsel;

OM CONSIDERATION WHEREOF, It 40 now here ordered and adjudged

by this Court that the judgnent of the said District Court in this

cause be, and the same is hereby, affirmed;

It is further ordered that defendant-appellant pay to

plaintiff-appellee the costs on appeal to be taxed by the Clerk of

this Court. 7

July 31, 1972

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