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  • Writer's pictureFred Litwin

The Christenberry Decision

In January 1971, Judge Herbert Christenberry conducted three days of hearings on Garrison's prosecution of Clay Shaw for perjury. Here is his decision:

Here are some highlights from Judge Christenberry's decision:

Page 5

At this point, a serious question concerning the basis for Garrison's decision rises. Apparently, his jurisdiction was based on Oswald's activities in New Orleans in the summer of 1963. However, it is strange indeed that, nearly three years after the assassination, Garrison would decide to undertake an investigation of such gravity merely because he disagreed with the findings of the Warren Commission and Oswald had spent some time in New Orleans. The defendant [Jim Garrison] did not testify as to what evidentiary basis led him to believe that further investigation of the assassination of the President was needed.

Pages 5 - 6

According to Garrison, Shaw was first interviewed in his office in December 1966. Garrison testified that at that time Shaw was not considered a suspect by the defendant and was not advised of his constitutional rights, nor was he told of his right to counsel. Just how the plaintiff [Clay Shaw] was first selected to be interviewed by the defendant when he was not a subject is another unanswered question in this case. The defendant offered no evidence to show any basis or cause for his office's interrogation of the plaintiff concerning such a shocking crime. His failure to offer any explanation leaves this court with but one conclusion, namely, that there was no factual basis for questioning Shaw concerning the assassination. This conclusion is supported by further facts that are discussed hereafter.

Page 7

However, substantial doubts are raised regarding the validity and objectivity of the state's case when a prosecuting attorney resorts to the use of such extraordinary tactics as were employed by Garrison on Russo. A fair inference to be drawn is that these ex parte procedures were used to implant into Russo's mind a story implicating the plaintiff in an alleged conspiracy plot. This could have been accomplished by post-hypnotic suggestion. This inference is supported by the fact that Garrison immediately moved to arrest and charge Shaw based solely on Russo's questionable, vague story. Such hasty action on the part of the defendant without further investigation and without submitting the matter, at that time, to the grand jury, demonstrates ulterior motive.

Note: It's even worse than Christenberry imagined. Russo's hypnosis sessions occurred after Shaw was arrested. Russo was interviewed once after being injected with sodium pentothal before the arrest and the notion of a party where the assassination was discussed had not yet been fleshed out.

Pages 9 - 10

The defendant testified that in 1967 he believed Russo's story that the plaintiff was present at the alleged conspiratorial meeting and that he still believes this story. Apparently, Russo himself does not share this belief. After having testified previously both at a preliminary hearing and at the conspiracy trial in state court, Russo, at the hearing in this court, invoked the protection offered by the Fifth Amendment to the United States Constitution, and refused to testify when asked the precise question he had previously answered in the state proceedings. Normally no inference can be drawn when one invokes a right secured him by the constitution. However, in the circumstances of this case this court believes that it can and it does draw the narrow inference from Russo's action, that, even today, he at least has substantial doubts as to the truthfulness of the testimony he gave in state court.

Page 12

Garrison states he was interested in the "forces responsible for the assassination, rather than individuals." Notwithstanding this statement by Garrison, this court, considering all of the evidence, finds that Garrison undertook his baseless investigation with the specific intent to deprive Shaw of his rights under the First, Fifth, and Fourteenth Amendments to the Constitution of the United States.

Pages 14 -15

Finally, it is important to note that no monies were contributed or used after the Shaw trial. All of these facts are indicative of the motives of Garrison and these three contributors. When Shaw was arrested the money came in; when he was acquitted, it stopped. The inference that these three persons were aiding Garrison in the prosecution of Shaw is further supported by the fact that Robertson employed in his automobile business a state's witness, Roger Craig from Dallas, Texas, during the course of the Shaw conspiracy trial. After the trial Craig went back to Dallas. Robertson professed to believe that it was merely a coincidence that Craig applied to him for employment and testified he could not remember whether the employment began before or after Craig testified.

The evidence is clear that Garrison was in bad faith in using these funds to prosecute Clay Shaw. Rault frankly testified that he expected results for the money contributed by him. Doubtless this is true of the other two, Roberson and Shilstone. The perjury charge against Shaw is part of Garrison's effort to produce such results.

Page 16

Garrison carefully set the stage for Shaw's arrest, which took place at approximately 5:30 P.M., four and a half hours after Shaw voluntarily appeared in Garrison's office. During this time, a representative of Life Magazine photographed Shaw through a two-way mirror unbeknownst to him. The hallway outside the defendant's office on the second floor of the New Orleans Criminal Courts Building had mysteriously become congested with newsmen, photographers, television camera crews, and members of the general public. Shaw was led handcuffed into the hallway, where he was shoved and pushed through the crowd to reach an elevator leading to the basement of the building and then to Central Lockup. All of this appeared on television. Shaw could have been taken down in a private elevator located in Garrison's office, but this would not have afforded the publicity Garrison was obviously seeking. Shaw's arrest and the manner in which it was effected was outrageous and inexcusable. The only conclusion that can be drawn from Garrison's actions is that he intentionally used the arrest for his own purposes, with complete disregard for the rights of Clay Shaw.

Pages 17 - 18

On Saturday, March 1, 1969 at 1:00 A.M., a unanimous jury returned a verdict of not guilty in the conspiracy trial. After forty days of trial the jury took only 55 minutes to reach its verdict. On the next working day, Monday, March 3, 1969, the defendant Jim Garrison filed an information personally signed by him charging Clay Shaw with the crime of perjury. The instant proceeding, of course, grew out of this charge. Prosecuting officials have wide discretion and necessarily so, but the court finds that as in the case of defendant's previous actions with regard to Shaw, the perjury charge was brought in bad faith and for purposes of harassment, being the product of both selective law enforcement and financial interest.

Page 18

Coupled with these facts is the fact that 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 assassination. Defendant also has a contract to write three additional books. It is obvious that the sale of defendant's books may be promoted by the publicity resulting from the continued prosecution of Clay Shaw. It provides a means whereby the defendant himself may profit, and also 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 prosecution of Clay Shaw.

Page 19

Finally, this court must make another comment concerning the facts of this case. In his book, Heritage of Stone, defendant Garrison makes several references to the Dreyfus case. When we consider Garrison's actions toward Shaw it is small wonder that in writing his book that classic example of injustice came to his mind.

Pages 20 - 21

Initially it should be noted that this court is aware of the warning in Stefanelli and the important policy considerations which underlie it. It is the opinion of this court however that such policy considerations are inapplicable under the facts of this case. This court is not dealing with a single good-faith criminal prosecution wherein allegations of unconstitutional procedures are made. This court is dealing with a case of continuing harassment and multiple prosecutions, with the likelihood that such harassment and prosecution will continue in the future, unless abated by direct federal court intervention. Herein lies the unique nature of this case and the resulting impotency of traditional avenues of relief. If plaintiff is forced to stand trial for perjury, takes the stand and is acquitted, this court has no doubt that the plaintiff will be charged anew on the basis of statements made by him from the witness stand. A request for relief in this subsequent prosecution would be met with the same arguments put forth by the defendant in the instant proceeding and so on ad infinitum. Surely at some point plaintiff's precious constitutional rights must be vindicated.

Page 22

Considering the evidence and the law, this court is convinced that the plaintiff is entitled to the relief sought. Accordingly, it is ordered that a permanent injunction issue restraining Jim Garrison, District Attorney for the Parish of Orleans, his assistants, employees, 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.

In response Garrison issued this press release:

Garrison claims that it is his "policy to lean over backwards and be as fair as possible to every defendant whom I must prosecute." I don't know whether to laugh or cry.

As proof of his fairness, Garrison calls attention to "what is literally a landmark in fairness in prosecution: the request that a three-judge panel review the evidence and determine beforehand if there was a suitable basis for charging Shaw."

But here is the real reason why Garrison asked for a preliminary hearing. James Alcock, the second-in-command to Jim Garrison, revealed that the reason the prosecution asked for a preliminary hearing was to pre-empt the defense and ensure that friendly judges were on the panel.

Garrison did appeal this ruling, and he lost that case as well. I'll post that decision tomorrow.

Previous Relevant Blog Posts

Jim Garrison claims he asked for a preliminary hearing on the Clay Shaw prosecution because of fairness, but here is the real reason.

In the lawsuit to stop Garrison's perjury charges, Judge Herbert Christenberry held three days of hearings in January of 1971. Jim Garrison, still the District Attorney, was forced to take the stand and was examined by Clay Shaw's attorneys.

Judge Herbert Christenberry held three days of hearings from January 25-27, 1971, to determine if Clay Shaw should stand trial for perjury. We've already posted highlights of Jim Garrison's testimony. Today, we post the entire testimony of Lt. Edward O'Donnell who conducted lie detector tests for Garrison in the 1960s.

Perry Russo testified in the three-day hearing held by Judge Herbert Christenberry in January 1971 that was held to determine if Clay Shaw should be tried for perjury. He plead the fifth amendment.


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