# Appendix — Garrison v. Shaw > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1396%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1972 - **Citation:** 409 U.S. 1024 ## Text 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 13 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 3 14 CLAY L. SHAW v. JIM GARRISON, ETC. UT ee sig eee, l Pe eai 1 iP fader te 1 i e Gintay Hult 10 i ee grate ee utah I petal pee z 335 2125 Bs e 7 ai jib eee nahh 711 15. 2371 1412 W 1 Cra LSA v. JIM GARRISON, ETC. 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. 16 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 17 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.* st l HH 100 e ! | 18 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 19 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. 20 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. 21 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 the He Sha the alleged meeting to plot the assassination. sta 3 BEE 17 E f é 1 | r f 5 ‘ j ; 111 i | | : Hi a ll rte tit ill refers pelt 0 Hi + 22 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 23 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. 24 ‘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. 25 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, 26 JIM GARRISON 15 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. 28 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. 8. 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 29 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: 30 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- = ea — * 5 : : 0 i 10 (it I He 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 at | 7 ij | | 5 4 1% | | tif fit i rh ‘itt 110 11145 11111 1123 1 22 THe i 173 § .. 5 THE f lt 132 4 1212 i tt stil * i Ba mai 113711 141 15111 (41 Ir atl: i 12111 ie le 11 ple 1 Wilt 1 il et oi In iu e i HHT 10 itis 1 I cletteed gti AE 110 ut 17111215 i 10 isis 15 WE Hl Titi it seu ‘ilk ate i 11 32 f e ill 141 wo “ Cite as 33" F Rapp. 398 (1971) e is 10 0 inti ii HUE TE e ii 114 i; 1 125 i 1 4 0 1511 i ius ‘il 10 0 1 IIe ii ig jill 333 1 15 laa il i 11 . tHe n uti feu 111 i 1131 1% i alt i ED feel Ht 1% f i 116 i 1 ii aT 1 , 1 10 li 1110. wet evidentiary — i! i i 1177 f 1 » 5 & "die —— — ae 1222 11 i . 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Shilstone testified that of the $1200 he Perhaps of all the evidence presented at the hearing, that concerning Shaw's arrest and his subsequent prosecution on the conspiracy charge is the most demon- strative of the defendant's bad faith in N vt 771177 11 THe age” M ii eee, I e eee, iH 112 Lit f 1% 11 1 Ee ae ilies dui il 1% 111: 25 E Ht 145 J 45 123111411 4 it 53 i 1 111 1 111 ee e Hilt! | 11115 14475 tte A alii 43 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 6 i AG e ee HiT i 3 18 1111 2 a - 83825 it a 7 ast LHe il sy 11 5 ee He . tie 11 1 iv! fl il: 1 5 an 1 ore 1 405 Raa COPY BOUND CLOSE IN CENTER 45 114 0 He ii ie i i — 15 E 1 i; 1 10 i ili Hi sa 1 1 i il 111 i e I 1 1 1 tif 101 i421 id 11. tie tik 1 5 yi 0 i 21111 ey 111 815 3415 aie 1 ie lt 0 12 E 10 6 i ö | COPY PRINTED CLOSE TO EDGE 2 122471 HH altel il i il i [aie 15 yi, I il 1 115 Hi ne i f l 0 e 111 Ht HEH WET Lee e ole illi Ha 1 0 iti ABH — Tr il Ii 15 Aidit if Hit HE 0 11 Ie i 1 Ht n f Ute a ae * COPY BOUND CLOSE IN CENTER 47 lft ili 1 0 Ye 111 ö Hi 1 i liegt HAITE vel (open ypph: Gey pep court belds that § 1983 is within the exception set forth in § 2283. . COPY PRINTED CLOSE TO EDGE * _ OS REE nee, 48 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1396%3A2. Public record. Not legal advice.