Milton Brener on New Orleans District Attorney Jim Garrison (continued)
Garrison's critics to the contrary, certain positive accomplishments must be credited to him with respect to the internal operation of his office. His staff has built an impressive record of prosecutions. Beginning in October, 1963, he went beyond his campaign promise of a full-time devotion to office and required all assistants to virtually divorce themselves from the private practice of law. He aggressively pursued forfeiture of bonds of absent defendants and used the proceeds to purchase much-needed modern equipment and to renovate completely his own office, as well as those of all assistants and ultimately the eight judges of the court. Whether his office is the "best in the country," as he has often claimed, may be another matter. However, the office does compare favorably with the best of prior administrations in New Orleans and none but his most bitter detractors could deny that his qualities of imagination and aggressiveness have, in many respects, been good for law enforcement.
Garrison's major preoccupation has not been with internal operations, however. Responsibility for the routine administration of the office, which is the prosecution of the thousands of cases, including murder, rape, and robbery, as well as gambling and prostitution, was quickly delegated to others almost in its entirety. For almost immediately upon his entry into office, Garrison demonstrated a preoccupation with matters whose genuine connection with the legitimate function of his office has been hard to discern.
Shortly prior to Garrison's assumption of office, an assistant district attorney of Richard Dowling, the outgoing DA, dismissed charges in two pending cases without serious explanation. The dismissals were the subject of considerable publicity and the inference by the public of corruption was undeniably strong. However, those who knew him had little reason to question the assistant's honesty. He was over fifty years of age and such faults as he had ever exhibited, in or out of office, were ascribed by practical1y all of the Tulane and Broad establishment to be those of poor judgment, not of corruption. More to the point, however, there was no evidence of corruption, nor was any developed in the course of the Grand Jury investigation relentlessly pursued by Garrison upon his assumption of office. Among those subpoenaed before the Jury was the former assistant DA. himself. Notwithstanding a total failure to develop evidence of bribery, Garrison sought and obtained Grand Jury indictments for "malfeasance in office" -- a loosely defined statute well-suited for use, and frequently used, by Garrison during his first years in office, against those he deemed political enemies.
The indictments garnered large headlines. The cases were dismissed by the Court in July, 1962, on the ground that the Grand Jury indictments were tainted with the compulsory appearance before that body of the suspected offender in violation of his constitutional rights. Despite his publicly stated intention to do so, no appeal was taken by Garrison. In early August, however, there followed nine additional charges of malfeasance against the same former assistant. The purported "malfeasance" consisted of routine dismissals of other prosecutions in none of which had there even been a suspicion of corruption. The new cases likewise were front-page news. Nothing further was heard of these, however, and some were quietly dismissed in the latter part of 1966. Others still remain open on the docket books. None were ever prosecuted further. Nor should they have been. Nor does there appear to be any valid reason for their having been filed.
A few days following the multiple indictments of the assistant, Garrison turned his fire on Dowling himself. Dowling was the subject of four Grand Jury indictments based upon routine dismissals of cases by Dowling during his administration as District Attorney, all for reasons apparently deemed insufficient by his successor.
These baseless indictments caused some anguish even to many of Garrison's supporters. His record as DA had been far from perfect, but Dowling, over seventy years of age, had given none the occasion to question his honesty. In Dowling's presence, in the second television open-end discussion, Garrison had disclaimed any reservations as to his opponent's integrity. In his public response to the indictments, Dowling suggested that Garrison was seeking publicity.
Many agreed. For several months Garrison's investigators, accompanied by some of his assistants, were staging nightly raiding parties on Bourbon Street, New Orleans's famous nightclub strip, while Garrison loudly proclaimed war on vice and vowed to clean up the street. There were many who, almost as loudly, insisted that Garrison was motivated more by a passion for publicity than by revulsion at the rampant B-drinking that flourished along the street. I personally feared that such transparently vindictive action as the malfeasance indictment of his former opponents would lend credence to the claims of Garrison's enemies as to his mania for publicity and would demolish public support. I had much to learn.
The Dowling indictments were promptly thrown out as stating no criminal offense recognizable in law. Despite Garrison's announced intention to appeal, no appeals were taken. The public promptly forgot the entire matter.
Meantime, Garrison's crusade against sin continued with increasing intensity. Nightly raids against honky-tonks and clip joints along a certain segment of Canal Street, the city's main stem, paid off relatively quickly when the clubs folded in the face of repeated arrests of employees and the consequent expense and interruption of business. Garrison was angered by the claims of his critics that no trials or convictions resulted from these nightly arrests and replied indignantly that he had closed the clubs and that trials or convictions were immaterial.
The Bourbon Street clubs were more formidable, however, and the attacks were costly. Under the law, one judge had to approve any expenditure by Garrison from the "fines and fees" fund which was used to finance this crusade, and Garrison was quite reticent about revealing details of the expenditures. Further, the judges had reservations about his use of a dozen or so investigators as a "second police force," as they termed it. It had never before been done and that was sufficient prohibition for them. Few of the judges were burdened with excessive imagination. Neither were they quite prepared to authorize the lavish redecorating of the District Attorney's office being undertaken by Garrison. The judges suspended all authorizations of funds until the entire Court returned from vacation in October. Garrison made a personal $5,000 loan from a local bank to continue the crusade until then.
In October, however, more complications developed. The judges agreed at a joint meeting that no expenditures would be approved except by a majority vote of all judges.
The first inkling I had of the considerable friction that was developing was Garrison's announcement at a staff meeting that he had finally located the trouble at Tulane and Broad. "There is," he said, "a conspiracy among the judges to wreck my administration."
On October 31st Garrison retaliated with a hammer blow. At noon he gave an after-dinner speech to a Jewish Temple Brotherhood. He had had the foresight to invite representatives of the local television stations to be present. That evening, large headlines informed the city of Garrison's after-dinner remarks to the effect that the Parish Prison was becoming dangerously overcrowded with prisoners awaiting trial -- the reason being that the eight judges of the Criminal District Court were running a "vacation racket." They were, he said, enjoying 206 holidays a year, not counting legal holidays like "All Saints' Day, Huey Long's Birthday, Memorial Day, and St. Winterbottom's Day," while prisoners languished in jail. The only possible way to put an end to this holiday system was to publicize the "racket." "No point in trying to talk to them," said Garrison. "They (the judges) are comparable to the sacred cows of India." That night the viewing public was treated to an entertaining TV film of Garrison's blistering attack and undoubtedly many joined in the obvious delight of Garrison's Temple Brotherhood audience.
Singled out for special attack was Judge J. Bernard Cocke with whom a bitter feud was developing. Garrison caustically pointed out that Judge Cocke treated himself to a three-day weekend each week and did not hold court on Fridays. "However," said Garrison, to the laughter of his audience, "he takes only one Friday off each week."
The issue of Judge Cocke's Friday "vacation" was to outlive Garrison's feud with the judges and was to play a part in Cocke's defeat some eighteen months later. Judge Cocke had an unfortunate disposition and had alienated innumerable lawyers, as well as jurors and witnesses, during his twenty years or so on the bench. In a world where all judges are brilliant, energetic, and courageous, this would, of course, be a major fault. However, the judges bring with them to the bench all forms of human frailties, many of which are more serious than discourtesy. Judge Cocke was generally recognized by the Bar as a conscientious, industrious, and fearless jurist. He could be found any Friday doing research in the Supreme Court Library. The Criminal Court was without research assistants or adequate research facilities.
Although most among the Bar and among the politicians and habitues of the building considered the attack to be unjustified, such individuals are relatively few in number and together with relatives and close friends do not constitute a potent factor in any election. The officeholders, politicians, lawyers, and professional men of New Orleans, as of any other city, are but a negligible part of the electorate. The bulk of the 200,000 registered voters of New Orleans, as elsewhere, consists largely of men and women too preoccupied with the daily necessity of earning a living to read beyond headlines. The workings of government and of courts remain a mystery. They are often deeply suspicious of all who constitute a part of this incomprehensible apparatus. The motives and honesty of men in public life are forever suspect to countless citizens who deem them unreal people living in an unreal world known only through newspapers and television.
What was becoming increasingly clear to many was Garrison's remarkable ability to respond to the prejudices and misconceptions of the great mass of voters beyond the circle in which he worked and lived. Garrison did not at all jibe with the generally accepted image of a politician. The thought of Garrison conducting a door-to-door campaign or shaking hands at random with members of a crowd is ludicrous to those who know him. His acquaintances are by and large a select group of lawyers and politicians, as well as a few other close personal friends. The group was far smaller in 1962 than in later years. How this aloof individual has consistently sensed the mood of the invisible crowd beyond his acquaintances and established a rapport with them with unerring instinct remains the greatest enigma to friends and enemies alike.
There was no mistaking the gathering shape of public opinion. Garrison had hit where the judges were vulnerable, and the fact that his charges were grossly exaggerated or unwarranted or intemperate made an adequate reply no less difficult. The judges, indeed, were in a difficult position. Beyond pointing out that the attack was motivated by their refusal to permit Garrison to "throw money away with both hands" and that he had never complained to the judges personally of the over- crowded conditions in the Parish Prison or of excessive vacations, the response was most moderate under the circumstances, gently taking Garrison to task for intemperate statements. They called for an investigation by the Bar Association into the ethics of Garrison's blast.
Judge William O'Hara, who had recently retired from the bench after nearly thirty years of service (and whose vacancy had been filled by his son, Malcolm), issued his own public statement to the effect that any blame for the crowded conditions of the Orleans Parish Prison must rest with the District Attorney. The statement was factual in tone and attempted to explain the operational deficiencies in Garrison's office that were responsible for the increasing backlog of cases. Judge O'Hara pointed out that Leon Hubert, under whom Garrison had served, had sharply reduced the population of the Parish Prison and the backlog of cases awaiting trial. He suggested that by use of similar methods Garrison could do the same. Garrison responded publicly with a lengthy press release in which, after a properly outraged defense of the conduct of his own office, he turned his fire on the judges whom he accused of showing a "remarkable lack of sympathy" with his drive on vice. After some amplification of this he homed in:
The judges have now made it eloquently clear where their sympathies lie in regard to aggressive vice investigations by refusing to authorize use of the DA's funds to pay for the cost of closing down the Canal Street clip joints. We have closed them, despite their obvious attempts to block me, and they now seek to slap the DA on the wrist by making him pay for this successful operation out of his pocket. . . . Again, the message is clear: "Don't rock the boat, son. You are not supposed to investigate anything." This raises interesting questions about the racketeer influences on our eight vacation-minded judges. This is a matter regarding which I will have much to say a little later.
The rest was colorful if anticlimactic. In view of events to follow in four years, however, it bears repeating:
The first discernible interest on their part with regard to the District Attorney's handling of vice cases arrived the past summer when it became apparent that this office was achieving success in its effort to eliminate the B-drinking racket in New Orleans. . . . The efficiency and dispatch with which the judges of the present court stopped my undercover investigation of B-drinking and the resolve which they demonstrated in their uniform opposition to my continued vice investigation by this office would gladden the heart of any efficiency expert.
The judges were infuriated. A charge of racketeering influences was not one to be ignored. Petty differences and some not so petty between the judges were forgotten as they sought public vindication of their good names. All eight signed a charge of criminal defamation, a misdemeanor triable under Louisiana law by a judge alone. The judges thus met Garrison's challenge squarely. It was the last time they were to dc so. The circumstances of the battle that followed justify scrutiny as they are not without bearing on the events of 1967.
The charge filed by the judges was promptly dismissed by Garrison's First Assistant, Frank Klein, Garrison having determined that it was baseless. The judges called in Louisiana's Attorney General, Jack Gremillion, to supersede Garrison and to file and prosecute the charges of defamation. Gremillion accepted the request, claiming that the "integrity of the judiciary is at stake." Judge William Ponder of Many, Louisiana, was assigned to hear the case.
Bar Associations and civic groups sought to heal the wounds and to avoid the unseemly spectacle that was brewing.
Garrison's foes publicly demanded full apologies. Privately it was hinted by the judges that a watered-down statement would suffice. Garrison's friends counseled that some explanation or apology could be made without loss of face. Garrison was intractable. He was the one due an apology .
Many felt that the feud would die a natural death without a trial. But seldom more than a few days could pass without some rhetoric or humorous observation by Garrison adorning the front page of the daily papers. Reporters besieged him for interviews and he was a willing subject. Several assistants, myself included. suggested to Garrison that silence on his part would probably result in a loss of public interest in the feud and a gradual detente with the judges. Garrison generally agreed and was undoubtedly sincere in his agreement. But his resolve generally lasted only until the approach of the next reporter. The press seldom went away from the building empty-handed and Garrison continued to supply the fuel that kept the feud alive.
In January 1963, the trial was held. One by one the judges paraded to the stand to assure the Court and the public that they were not shirking their duties and that they were not at all influenced by racketeers. The cross-examination. ably handled by Garrison's friend and attorney, Donald Organ, was often embarrassing. One judge admittedly did consort with known gamblers. One judge's deceased mother had at one time been part owner of a lottery company. One judge had been accused twenty years ago by a political opponent of being in cahoots with racketeers while serving as District Attorney. These revelations were the subject of large headlines for three days and were devoured by thousands. That it amounted to something less than proof of racketeering influences, or that there was not a whisper concerning such influences on fully half of the judges, was of no moment to most of the public. The judges took their lumps willingly in anticipation of Garrison's own appearance on the witness stand. Indeed, he had much to answer for. Why had he not spoken to any of the judges about his concern over the increasingly crowded conditions in the Parish Prison? Why had he not spoken to them about his belief that they were taking an excessive number of holidays? Had any of his trial assistants ever complained to him of any racketeering influence on any of the judges? Tough questions indeed!
On the day the prosecution was to close its case, Garrison's numerous critics crowded the courtroom. They were undoubtedly looking for a repetition of the Garrison-Dowling debate. They were to be surprised and disappointed. Following the Attorney General's announcement that the prosecution rested, Organ was on his feet:
"Your Honor, the defense also rests."
Probably most of the public felt as did one who expressed to me his keen disappointment. He had, he said, read all about the trial of the judges and felt that they should have been convicted. Now, however, how could he determine if Garrison had done anything wrong or not?
The decision to rest without evidence was Garrison's alone. The night before the prosecution was to close, I heard firsthand his vivid description of his enemies sitting patiently for three days, salivating, as he described it, over the prospect of his denouement on the stand, and his argument that he had nothing to gain and everything to lose in the eyes of the public -- the only court that concerned Jim Garrison.
Garrison was duly convicted. He was sentenced to pay a fine of $1,000. But long before his conviction was reversed by the United States Supreme Court in early 1965, it was clear to all, the eight judges included, that he had won and the judges had lost. The Supreme Court reversal followed an affirmance of the conviction by the Louisiana State Supreme Court and was based on the unconstitutionality of the defamation statute insofar as it applied to defamation of public officials, such as the judges. In such cases, said the United States high court, there must be proof of actual malice. Such proof, according to the Court, was lacking. Garrison celebrated the occasion to remark that the unconstitutionality of the statute was apparent to everyone except the State Supreme Court. The absence of proof of racketeering influences was again lost from view.
Meantime, during the pendency of his defamation trial Garrison had turned to two trusty weapons, the Grand Jury and the malfeasance statute, to gain some measure of vengeance against his major antagonist, Judge Bernard Cocke. Cocke had asked a witness in the course of a preliminary hearing in open court if his, the witness's, testimony had been the same before the Grand Jury. For this the Judge was cited for contempt of the Grand Jury, for alleged violation of Grand Jury secrecy. Then, shortly following his conviction for defamation, Garrison sent an assistant district attorney with a voucher for undercover work in connection with Garrison's Bourbon Street campaign to Judge Cocke to seek Cocke's signature. The Judge, along with all of his colleagues, had long since made known his position that such expenditures by the District Attorney were not authorized. A second assistant was sent as a witness. Cocke refused and an indictment of malfeasance followed.
On both occasions Judge Cocke vehemently denied any wrongdoing. But so do all defendants. A judge from another parish was appointed to hear the trials, which were held less than two weeks after the second charge, and Judge Cocke was promptly acquitted. Garrison was forced to try the case himself when his assistants refused. He had also invited Attorney General Gremillion to prosecute, noting that "the integrity of the judiciary may be at stake," but Gremillion declined the offer. It was Garrison's second court appearance since assuming office. His own defamation trial was the first. The acquittals were expected even by Garrison, but the humiliation to his antagonist of being forced to sit at the bar as a common criminal was apparently sufficient.
I had felt that such almost childishly punitive measures and blatant abuse of the Grand Jury would cause wide public condemnation. Again I had overestimated the public and underestimated Garrison. Even the irascible Cocke realized that in the eyes of the public Garrison had undoubtedly won again. For after all, what could be expected of any Judge but to acquit his colleague?
By early 1963, in civil proceedings before civil judges, Garrison had successfully "padlocked" as public nuisances about a half dozen Bourbon Street nightclubs. I had assisted in the trial of these cases and later in May 1963, successfully tried similar cases against an additional six clubs. I knew that the effectiveness of the padlocking was somewhat less than the word implies. They were permitted to continue operation upon posting of bond to guarantee against any further B-drinking or related vices. The penalty for any violation was $100. Whether any significant change in the Bourbon Street routine was effected has been a matter of dispute. The psychological effect of his victories was not disputed at all, however. By early 1963 Garrison had confounded friends and enemies alike with his increasingly favorable image with the public. There was no question about who was in command at Tulane and Broad. He was ready to go on to other battles.
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