Raff v. Lewellen Jr. Petition for Writ of Certiorari

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October 3, 1988

Raff v. Lewellen Jr. Petition for Writ of Certiorari preview

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  • Brief Collection, LDF Court Filings. Raff v. Lewellen Jr. Petition for Writ of Certiorari, 1988. 81fde2bd-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/31a72e04-d8b4-46c4-9c99-c536a40f8385/raff-v-lewellen-jr-petition-for-writ-of-certiorari. Accessed July 06, 2025.

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    IN THE

Supreme Court »f the United States

•CT#BER TERM, 1988

A rkansas State P rosecutor G ene R aff,
D eputy Prosecutor D avid C ahoon, and 
A rkansas L ee C ounty C ircuit Judge 
H enry W ilkinson, Jr., in their official 
capacities only, Petitioners

vs.
R oy C. Lewellen, Jr., Respondent

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

John Steven C lark, E sq. 
A rkansas A ttorney G eneral 
200 Tower Building 
Little Rock, Arkansas 72201 
(501) 682-2007 
Counsel of Record

D a v idS. M itchell, Esq 
A ssistant A ttorney G eneral 
Counsel for Petitioners_____

TREVATHAN PRESS • LITTLE ROCK



I

QUESTIONS PRESENTED

WHETHER A FEDERAL COURT MAY ENJOIN A 
PENDING STATE COURT CRIMINAL PROS­
ECUTION BASED UPON THE “BAD FAITH” 
EXCEPTION TO THE YOUNGER ABSTENTION 
DOCTRINE WITHOUT CONSIDERING THE 
STRENGTH OF THE STATE’S EVIDENCE OR THE 
SERIOUSNESS OF THE CHARGES.

II.

WHETHER THE EIGHTH CIRCUIT ERRED IN 
HOLDING THE DISTRICT COURT’S FINDINGS 
SUFFICIENT TO ENJOIN A PENDING STATE 
FELONY PROSECUTION.



II

PARTIES BELOW

Petitioners Prosecutor Gene Raff, Deputy Prosecutor 
David Cahoon, Arkansas Lee County Circuit Judge 
Henry Wilkinson, Jr., in their individual and official 
capacities; Lafayette Patterson; Jeanne Kennedy; 
Arkansas State Trooper Doug Williams; Lee County, 
Arkansas; Arkansas Lee County Sheriff Robert May, Jr.; 
Robert Banks; Margie Banks; Reverend Almore Banks; 
and Respondent Roy C. Lewellen, Jr.



Ill

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED
PARTIES B E L O W .................................... . .  i
TABLE OF CONTENTS.............................   ii
TABLE OF AUTHORITIES....................................
OPINIONS B E L O W ...................................
JU RISD ICTIO N .....................................
STATEMENT OF THE CASE ............................... !
REASON FOR GRANTING THE W RIT.................. -

This Court should grant certiorari and reverse 
the Eighth Circuit Court of Appeals because its 
interpretation of the “bad faith” exception to 
the Younger abstention doctrine conflicts with 
every other Circuit Court decision to address 
the same issue as well as the decisions of the 
United States Supreme Court. Furthermore the 
issue to be addressed is of great constitutional 
magnitude and extreme public importance.

CONCLUSION .
APPENDIX 
Eighth Circuit Order 

April 4, 1988

............... 26

A 1 - A 38



IV

U.S. District Court Order
December 8, 1986 ........................ A 39 - A 51

Eighth Circuit Order on Petition for Rehearing
Ju‘y 14> 1988 ...............................A 52 - A 62

Eighth Circuit Order on Petition for Rehearing 
and on Petition for Rehearing En Banc
September 28, 1988 ..............................A 63

Order of United States Supreme Court 
Extending Time to File Petition 
for Certiorari, October 12, 1988 . . . .  A 64



V

TABLE OF AUTHORITIES

Cases:
Page

Allee v. Medrano, 416 U.S. 802, (1974).............8
Bonner v. City of St. Louis, Mo.,

526 F.2d 1331 (8th Cir. 1 9 7 5 )............... 17
Boyle v. Landry, 422 F.2d 631

(7th Cir. 1970)................................................9
Cameron v. Johnson, 390 U.S. 611 (1968) . . . .  8 
Central Avenue News, Inc. v. City of Minot,

651 F.2d 565 (8th Cir. 1 9 8 1 ).................... 8
Dataphase Systems, Inc. v. C. L. Systems, Inc.

640 F.2d 109 (8th Cir. 1981)................... 9
Deakins v. Monaghan, 108 S.Ct. 523 (1988) . . . .  20
Dombrowski v. Pfister, 380 U.S. 479 (1965).......... 8
Peas ter v. Miksch, 846 F.2d 21 (6th Cir. 1988) . . .  20 
Fitzgerald v. Peek 636 F.2d 943 (5th Cir.)

cert, denied, 452 U.S. 916 (1981)................8
Heimbach v. Village of Lyons, 597 F.2d 344

(2d. Cir. 1979)................................................. ....
Honey v. Goodman, 432 F.2d 333

(6th Cir. 1970) .............................................. ....
Kugler v. Helfant, 421 U.S. 117 (1974) . . . .  8
Ledesma v. Perez, 401 U.S. 82 (1971)................. 8
Lewelien v. Raff, 649 F. Supp. 1229

(E.D. Ark. 1986).................................................



VI

Lewellen v. Raff, 843 F.2d 1103 (8th Cir. 1988) . . .  2 
Lewellen v. Raff 851 F.2d 1108 (8th Cir. 1988) . . .  2 
Munson v. Janklow, 563 F.2d 933

(8th Cir. 1 9 7 7 )...............................................8
Ohio Civil Rights Commission v. Dayton Christian 

Schools, 477 U.S. 619, 347 S.Ct. 2718,
(1 9 8 6 ) ............................................................  17

Samuels v. Mackell, 401 U.S. 66 (1971) . . .  20 
Smith v. Hightower, 693 F.2d 359

(5th Cir. 1 9 8 2 ) ................................................. 7
Timmerman v. Brown, 528 F.2d 811

(4th Cir. 1 9 7 5 ) .................................................8
University Club v. City of New York,

842 F.2d 37 (2d Cir. 1 9 8 8 ) .....................  17
Wichert v. Walter, 606 F. Supp. 1516

(D.N.J. 1 9 8 5 )................................................ 10
Williams v. Red Bank Board of Education,

662 F.2d 1008 (3d Cir. 1981) . . .  8
Wilson v. Thompson, 593 F.2d 1375

(5th Cir. 1 9 7 9 ).................................................9
Younger v. Harris, 401 U.S. 37 . . . .  8

Statutes:

28 U.S.C. § 1254(1).................................................2
28 U.S.C. § 1343 ......................................................4
42 U.S.C. § § 1981, 1983, 1985, 1986, 1988 ................. 4
Ark. Code Ann. § 5-53-108 (1987).......................4



IN THE

Supreme Court Of The United States

OCTOBER TERM, 1988

A rkansas State Prosecutor G ene R aff,
D eputy P rosecutor D avid Cahoon, and 
A rkansas Lee C ounty C ircuit Judge 
H enry W ilkinson, Jr., in their official

capacities only Petitioners
vs.
R oy C. L ewellen, J r . Respondent

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

Prosecutor Gene Raff, Deputy Prosecutor David 
Cahoon, and Arkansas State Circuit Judge Henry 
Wilkinson, Jr., petition for a Writ of Certiorari to review 
the Judgment of the United States Court of Appeals for 
the Eighth Circuit.



OPINIONS BELOW

On December 8, 1986, the U.S. District Court for 
Eastern District of Arkansas, George Howard, Jr., 649 F. 
Supp. 1229, (Appendix pp. A 39-A 51) enjoined 
Respondent Lewellen’s state criminal prosecution. On 
appeal, a panel of the Eighth Circuit Court of Appeals 
affirmed Lewellen v. Raff, 843 F.2d 1103 (8th Cir. 1988) 
(Appendix pp. A 1-A 38). The Eighth Circuit Court of 
Appeals denied the Petition for Rehearing on July 14, 
1988, Lewellen v. Raff, 851 F.2d 1108 (8th Cir. 1988) 
(Appendix p. A 63) On September 28, 1988, Petition for 
Rehearing was denied as well as Petition for rehearing 
rehearing en banc. (Appendix p. A 64) These orders are 
reprinted in the Appendix to this Petition.

JURISDICTION

On April 4, 1988, the Court of Appeals for the 
Eighth Circuit confirmed the District Court’s preliminary 
injunction granted December 8, 1986. The Court of 
Appeals denied a petition for rehearing on July 14, 1988, 
and on September 28, 1988, it denied a petition for 
rehearing and for rehearing en banc. On October 12, 
1988, Justice Blackmun granted an extension of time 
until November 11, 1988, for petitioners to file petition 
for a writ of certiorari. This Court has discretionary 
jurisdiction to review this case under 28 U.S.C. § 1254 
(!)•

2



STATEMENT OF THE CASE

On September 3, 1985, the rape trial against Rev. 
Almore Banks commenced with jury selection. Banks, a 
black man, represented by respondent, Roy C. Lewellen, 
a black attorney, was charged with raping the eleven year 
old daughter of Mrs. Lafayette Patterson, a black 
woman. Respondent Lewellen has admitted that two 
days following commencement of the Banks trial, he 
attempted to negotiate a secret agreement between the 
Banks family and Mrs. Patterson whereby Mrs. Patterson 
would be paid $500 in exchange for her promise to “drop 
the charges.” (T. 557, 558, 559, 563, 843 F.2d 1107 n.4, 
1108). Mrs. Patterson had previously been identified as a 
state’s witness against Banks. When Mrs. Patterson later 
announced it was not up to her to “drop the charges,” 
Lewellen told her:

See, it’s up to you in the sense that if you and 
your child don’t come up here, then they’re 
going to drop it. They can’t make you come to 
no courtroom and testify to nothing. I don’t give 
a shit if they subpoena you. You don’t have 
to —you can go up there and say, “I ain’t got 
nothing to say.” You understand? Huh?

843 F.2d at 1108. Unbeknownst to Lewellen, the 
conversations were recorded by State Trooper Doug 
Williams.



On September 27, 1985, the petitioning
prosecutors, having received the state police 
investigative report, including the tapes and Mrs. 
Patterson’s statement, charged Lewellen and Rev. Banks 
with witness bribery and conspiracy to commit witness 
bribery. On that date Municipal Judge Dan Felton, III, 
not a party to this case, reviewed the information and 
found probable cause existed to support these felony 
charges. Most of the facts leading up to the prosecutors’ 
decision to initiate Lewellen’s prosecution are set out in 
the Eighth Circuit Court of Appeals’ April 4, 1988, 
order, Lewellen v. Raff, 843 F.2d at 1105-08, (Appendix 
pp. A 1-A 38). The Arkansas witness bribery statute, to 
which Lewellen makes no constitutional challenge, is 
reproduced at 843 F.2d 1107 n.5 (Appendix p. A 12).

On April 28, 1986, on the eve of Lewellen’s state 
criminal trial, Lewellen brought suit in Federal Court 
against these state government officials pursuant to 42 
U.S.C. §§ 1981, 1983, 1985, 1986, and 1988 claiming they 
had conspired to prosecute him due to his race and in 
retaliation of his exercise of federally protected 
constitutional rights. Jurisdiction in the Federal District 
Court was invoked pursuant to 28 U.S.C. § 1343.

Following extensive discovery, on November 14, 
1986, the district court temporarily restrained Lewellen’s 
state criminal trial. On November 24, 1986, the district 
court began conducting a lengthy hearing on Lewellen’s

4



motion for a preliminary injunction, as well as on the 
defendant’s numerous motions for summary judgment. 
On December 8, 1986, after hearing six and one-half 
days of testimony and other evidence over a 12-day 
period the district court entered a preliminary injunction 
to the state criminal prosecution. Lewellen v. Raff, 649 F. 
Supp. 1229 (E.D. Ark. 1986). The trial court found that 
the prosecution was initiated in retaliation for Lewellen’s 
vigorous defense of his client, Rev. Banks. Lewellen v. 
Raff, 649 F. Supp. 1229, 1232 (E.D. Ark. 1986); Lewellen 
v- Raff, 843 F. 2d 1103, 1110 (8th Cir. 1988); (Appendix 
at pp. A 1-A 38). The District Court never mentioned 
Lewellen’s admitted incriminating statements which, 
along with the testimony of Mrs. Patterson, served as the 
basis for the charges against him. On appeal the Eighth 
Circuit affirmed the preliminary injunction, holding:

we find that the district court’s finding of a 
retaliatory prosecution is not clearly erroneous, 
we therefore need not and do not address the 
issue of whether the prosecutors entertained a 
reasonable expectation of obtaining a con­
viction of Lewellen.

843 F. 2d at 1112. Later, in denying the petition for 
rehearing on July 14, 1988, the Eighth Circuit again held 
the strength of the evidence against Lewellen was 
irrelevant, stating:

to obtain a preliminary injunction in this



context the plaintiff need only show the 
prosecution was motivated in part by a purpose 
to retaliate against constitutionally protected 
conduct.

851 F.2d at 1110 (emphasis added), (Appendix, p. A 60).

6



ARGUMENT

WHETHER A FEDERAL COURT M AY ENJOIN A 
PENDING STATE CRIMINAL PROSECUTION 
BASED UPON THE “BAD FAITH” EXCEPTION TO 
THE YOUNGER ABSTENTION DOCTRINE WITH­
OUT CONSIDERING THE STRENGTH OF THE 
STATE’S EVIDENCE OR THE SERIOUSNESS OF 
THE CHARGES.

The pivotal issue in this case turns on the nature 
and quantum of proof necessary to enable a federal 
court to override Younger and enjoin an ongoing state 
felony prosecution. Under the newly crafted Eighth 
Circuit rule, a state criminal defendant may circumvent 
Younger by merely establishing that his prosecution was 
motivated “in part” by an allegedly improper retaliatory 
purpose. 851 F. 2d at 1110. That is all that the Eighth 
Circuit requires. Contrary to the positions taken by other 
circuits, the Eighth Circuit does not require proof that 
the alleged improper purpose was a “substantial” factor, 
much less a “major motivating factor.” Cf Smith v. 
Hightower, 693 F. 2d at 367 (retaliation must be a “major 
motivating factor” and play “a prominent role in the 
decision to prosecute”). Nor does the strength of the 
State’s case against the criminal defendant have any role 
in the Eighth Circuit’s analysis. Instead, under the new 
Eighth Circuit test, a state prosecution motivated “in 
part” by an improper purpose may be enjoined pendente



lite no matter whether the evidence of the criminal 
defendant’s guilt is overwhelming. Because the Eighth 
Circuit’s test so drastically strays from the principles 
announced in Younger, review should be granted by this 
Court.

THE EIGHTH CIRCUIT’S LEGAL STANDARD 
FAILS TO INCLUDE CONSIDERATION OF THE 
STRENGTH OF THE STATE’S EVIDENCE OR 
SERIOUSNESS OF THE CHARGES.

By authorizing the entry of a federal preliminary 
injunction to a pending state court criminal prosecution 
without determining whether there is a reasonable 
expectation of obtaining a valid conviction or 
considering the strength of the state’s evidence, the 
Eighth Circuit’s recent decisions conflict with decisions 
of the United States Supreme Court and all other 
circuits that have addressed the issue. Younger v. Harris, 
401 U.S. 37, 48 (1971); Dombrowski v. Pfister, 380 U.S. 
479 (1965); Cameron v. Johnson, 390 U.S. 611, 621 
(1968); Kugler v. Helfant, 421 U.S. 117, 126 n.6 (1975); 
Ledesma v. Perez, 401 U.S. 82, 85 (1971); Allee v. 
Medrano, 416 U.S. 802, 819, (1974); Munson v. Janklow, 
563 F.2d 933, 935 (8th Cir. 1977; Central Avenue News, 
Inc. v. City of Minot, 651 F.2d 565, 570 (8th Cir. 1981); 
Heimbach v. Village of Lyons, 597 F.2d 344, 347 (2d Cir. 
1979); Williams v. Red Bank Board of Education, 662 F.2d 
1008, 1022 n.14 (3d Cir. 1981); Timmerman v. Brown, 528 
F.2d 811, 815 (4th Cir. 1975); Fitzgerald v. Peek, 636 F.2d

8



943, 945 (5th Cir.), cert, denied, 452 U.S. 916 (1981); 
Smith v. Hightower, 693 F.2d 359, 370 (5th Cir. 1982); 
Wilson v. Thompson, 593 F.2d 1375, 1387 n.22 (5th Cir. 
1979); Honey v. Goodman, 432 F.2d 333, 344 (6th Cir. 
1970); Boyle v. Landry, 422 F.2d 631, 633 (7th Cir. 1970).

In essence, the Eighth Circuit has ignored the prose­
cutor’s contentions that Lewellen’s incriminating tape- 
recorded statements and the testimony of his primary 
accuser, Mrs. Lafayetta Patterson, provide a reasonable 
basis for the prosecutors to expect that Lewellen could 
be convicted. Indeed, the Eighth Circuit’s new standard 
renders such proof wholly irrelevant for purposes of 
determining whether a preliminary injunction should 
issue.

The Eighth Circuit attempts to legitimize its refusal 
to address the State’s more than ample evidence against 
Lewellen by creating a tenuous and unprecedented 
standard of proof to enjoin preliminarily, as opposed to 
permanently, a pending state prosecution. The holding 
constitutes a radical departure from the precedents 
above.

Petitioners submit that the Eighth Circuit erred in 
failing to employ Younger abstention as a threshold 
jurisdictional issue to be addressed in addition to 
employment of the general preliminary injunction 
standard. See Dataphase Systems, Inc. v. C.L. Systems, 
Inc., 640 F.2d 109, 114 (8th Cir. 1981). Oddly enough, in

9



its first opinion, see 843 F.2d at 112 n.10, the Eighth 
Circuit invoked Judge Sarokin’s decision in Wichert v. 
Walter, 606 F. Supp. 1516 (D.N.J. 1985) to sustain the 
injunction issued below. Yet Judge Sarokin held 
Younger's jurisdictional hurdle applicable, even at the 
preliminary injunction stage, stating at 606 F. Supp. 
1519:

Where the preliminary relief requested is an 
injunction against state disciplinary pro­
ceedings, the litigant must also demonstrate [in 
addition to the general preliminary injunction 
standard] that the threatened harm to him is 
egregious enough to surmount the jurisdictional 
hurdle of Younger v. Harris (citations omitted) 
and its progeny.

Judge Sarokin further noted that Younger’s jurisdictional 
hurdle includes a showing the prosecutions were “not 
made with any expectation of securing valid convictions.” 
Id. at 1520 (quoting Younger v. Harris, 401 U.S. 37, 48 
(1971) (quoting Dombrowski, 380 U.S. 479, 482 (1965)).

The Eighth Circuit’s distinction between a 
preliminary and a permanent injunction, never 
recognized by this Court, allows the “bad faith” 
exception to the Younger doctrine to swallow the rule. 
This Court has repeatedly and consistently imposed a 
heavy burden upon a federal court plaintiff seeking to 
interfere with pending state court proceedings without

10



regard as to whether it he by preliminary or permanent 
injunction. Dombrowski, 380 U.S. 479 (1965); Cameron, 
390 U.S. 611; Younger, 401 U.S. 37, 48 (1971); Kugler, 
421 U.S. 117, 126 n.6 (1975). The practical effect of a 
Younger “bad faith” preliminary injunction is the same as 
that of a permanent injunction—to forever bar the state 
criminal prosecution.

Other decisions do not recognize the Eighth 
Circuit’s distinction. See Boyle v. Landry, 422 F.2d 631 
(7th Cir. 1970) (applying same standards without regard 
to whether by preliminary or permanent injunction); 
Honey v. Goodman, 432 F.2d 333 (6th Cir. 1970) 
(injunction relief available only where the state instituted 
proceedings in bad faith with no real hope of ultimate 
success). See also Central Avenue News, Inc. v. City of 
Minot, 651 F.2d 565, 570 (8th Cir. 1981) (federal 
interference with pending state criminal proceedings 
justified only where shown the lack of a reasonable 
expectation that valid convictions will result); Munson v. 
Janklow, 563 F.2d 933 (8th Cir. 1977) (dismissal of 
injunction relief claim upheld where plaintiff failed to 
allege prosecution brought without a reasonable expec­
tation of obtaining a valid conviction).

IMPORTANCE

The Eighth Circuit’s standard ignores the deeply 
entrenched constitutional principles of comity and 
Federalism. Should the Eighth Circuit’s standard be

11



allowed to stand, virtually no state prosecution will be 
free from the threat of federal court interference. The 
present case, where the federal court has already 
enjoined Lewellen’s prosecution for almost two years, 
classically underscores why Younger's “bad faith” 
exception should be parsimoniously applied even at the 
preliminary injunction stage. Moreover, where, as here, 
the preliminary injunction hearing involved six and one- 
half days of testimony following more than six months of 
extensive discovery, the Federal Court must not hold 
plaintiff to such lenient standard of proof to demonstrate 
the impermissible motivation behind the prosecution 
while simultaneously ignoring the most salient and 
relevant evidence in the record, the state’s evidence 
supporting the decision to prosecute.

By lowering the quantum of proof necessary to 
establish “bad faith” and simultaneously disregarding the 
state’s proof against the accused, the Eighth Circuit test 
ignores the severe impact that even a preliminary 
injunction can have on a state criminal prosecution. 
After years of delay, witnesses’ memories fade, evidence 
grows stale, complaining parties’ fervor subsides, and 
witnesses may move away, die, or otherwise become 
unavailable. Political pressure placed upon a state 
prosecutor as a result of a federal court preliminarily 
enjoining him from prosecuting due to his alleged “bad 
faith” virtually assures that the prosecution will be 
permanently abandoned. Even if the district court 
ultimately denied a permanent injunction in the case at

12



bar, the state’s ability to prosecute Lewellen has already 
been crippled.

The rule fashioned by the Eighth Circuit carries 
other equally unpalatable consequences. For example, 
under the guise of carrying out discovery in the federal 
proceeding, Lewellen, over petitioners’ objections, has 
been afforded the opportunity to rigorously interrogate 
the state’s witnesses against him, which would otherwise 
be prohibited under Rule 17 of Arkansas Rules of 
Criminal Procedure. Lewellen’s primary accuser, 
Lafayetta Patterson, and the investigating officers have 
been subjected to hours of examination in depositions 
and in federal court. Few complaining witnesses in state 
criminal prosecutions could have withstood the intense 
pressure placed upon Mrs. Patterson, after being sued in 
this case for damages, particularly after the federal court 
has refused to abstain from exercising jurisdiction. In 
short, the ill effects of an injunction that Younger foresaw 
have already been visited upon the State even though the 
injunction entered was technically pendente lite.

Should the preliminary injunction not be reversed, 
Lewellen will be afforded still another hearing for a 
permanent injunction where he may further interrogate 
the state’s witnesses against him. Even if a permanent 
injunction is ultimately denied and the prosecution 
found to have been brought in good faith, the state will 
have to await, in essence, a third trial before having the 
opportunity to present in state court the strong evidence

13



of Lewellen’s criminal violation.

Twenty years ago, this Court observed, “the issue 
of guilt or innocence is for the state court at the criminal 
trial; the State [is] not required to prove appellants guilty 
in the federal proceeding to escape the finding that the 
State had no expectation of securing valid convictions.” 
Cameron, 390 U.S. at 621, 88 S.Ct. at 1341. 
Notwithstanding this admonition, the Eighth Circuit has 
virtually decided Lewellen’s innocence even though 
there was no finding his prosecution was brought with 
“no expectation of conviction[s] but only to discourage 
the exercise of protected rights.” Cameron, 390 U.S. at 
621 (emphasis added); Boyle, 422 F.2d 631, 633 (7th Cir. 
1970).

THE FIFTH CIRCUIT TEST IS ERRONEOUSLY 
APPLIED

Relying on a trilogy of Fifth Circuit cases, Wilson v. 
Thompson, 593 F.2d 375 (5th Cir. 1979); Fitzgerald v. 
Peek, 636 F.2d 943 (5th Cir.), cert, denied, 452 U.S. 916 
(1981); Smith v. Hightower, 693 F.2d 359 (5th Cir. 1982), 
the Eighth Circuit’s second Order held:

[T]o obtain a preliminary injunction in this 
context the plaintiff need only show that the 
prosecution was motivated ‘in part’ by a 
purpose to retaliate against constitutionally 
protected conduct.

14



851 F.2 at 1110 (emphasis added). The dangerous aspect 
of this rule is that every criminal defendant who has any 
ties to local politics or who is otherwise outspoken on 
political issues can derail his state prosecution by 
claiming that a witness, investigator, prosecutor, or judge 
is aligned with a political opponent.

Thus, despite its reference to the Fifth Circuit 
decisions, the Eighth Circuit has created a truncated 
version of the Fifth Circuit test that omits reference to 
critical components employed in the very cases upon 
which the Eighth Circuit relies. Contrary to the Eighth 
Circuit’s interpretation, the Fifth Circuit’s approach 
requires consideration of evidence of a criminal viola­
tion in granting a preliminary injunction, Hightower, 693 
F.2d at 370 n.27. Moreover, the Fifth Circuit recognized 
in Hightower that a plaintiff must show more than that 
his prosecution was motivated in part by retaliation, 
instead, he must prove that retaliation is a major 
motivating factor:

We conclude the Wilson court did not mean 
that any showing of retaliation was sufficient 
evidence to meet the plaintiffs burden, because 
this would conflict with the holding of Younger 
that injunctions of state court proceedings are 
to be granted only in narrow circumstances. In 
stating that the plaintiff must prove retaliation 
exists before a preliminary injunction will be 
granted, the Wilson court contemplated that the

15



plaintiff must prove retaliation was a major 
motivating factor and played a prominent role 
in the decision to prosecute.

693 F.2d at 367 (emphasis added). The second Eighth 
Circuit opinion reasons that, at the preliminary 
injunction stage, only the first two prongs of the three- 
part Fifth Circuit test are applicable. However, 
Hightower makes clear that the “strength of the evidence 
and the seriousness of the charges” may even prevent 
plaintiff from carrying his heavy burden on the second 
(retaliation) prong. Id. at 370 n.27.

Contrary to the suggestion in the second Eighth 
Circuit opinion, 851 F.2d at 1109 (Appendix A 61) the 
state does not contend that Fitzgerald has been overruled 
by Hightower. Rather, Fitzgerald, Wilson and Hightower 
all require the federal court to consider the strength of 
the evidence and seriousness of the charges to determine 
whether plaintiff has carried his heavy burden on the 
retaliation prong (second prong) as well as the third 
prong:

Strong evidence of criminal activity weakens the 
finding of retaliation and may prevent the 
plaintiff from carrying his heavy burden on the 
retaliation prong. If the plaintiff establishes his 
case for retaliation, the strength and the 
seriousness of the charges remains relevant in 
determining if the prosecution would have been

16



brought anyway under the third prong of
Wilson.

Hightower, 693 F.2d at 370 n.27.

According to the Eighth Circuit, Fitzgerald's 
conclusion that a showing of bad faith “will justify an 
injunction regardless of whether a valid conviction 
conceivably could be obtained,” 636 F.2d at 945 
(emphasis added), means that a criminal defendant may 
circumvent Younger without proving that there is 
reasonable expectation of his conviction. However, the 
language in Fitzgerald is not inconsistent with requiring 
plaintiff to show there is no reasonable expectation of 
conviction. Requiring a showing a conviction is 
inconceivable is a much more onerous burden than 
merely requiring a showing it cannot be reasonably 
expected. Contrary to the Eighth Circuit’s holding, the 
state has a legitimate interest in pursuing a criminal 
prosecution like Lewellen’s, brought with full probable 
cause, regardless of whether it is proven to be motivated 
“in part” by some impermissible purpose.

LEWELLEN HAS AN ADEQUATE REMEDY IN 
STATE COURT

The Eighth Circuit has not required Lewellen to 
carry his heavy burden of showing Arkansas law fails to 
provide an adequate legal remedy of which he may avail 
himself. See Ohio Civil Rights Commission v. Dayton 
Christian Schools, A ll U.S. 619, 106 S.Ct. 2718, 2723-24

17



(1986); University Club v. City of New York, 842 F.2d 37, 
40-42 (2d Cir. 1988); Bonner v. City of St. Louis, Mo., 526 
F.2d 1331, 1335 (8th Cir. 1975). A federal court cannot 
indulge in the assumption that the state trial and 
appellate courts are incapable of fairly adjudicating 
plaintiff’s claim that the state court systematically 
conspires to harass, intimidate, coerce, discriminate, and 
deny equal protection to black citizens. Id. at 1337. In 
Bonner, the Eighth Circuit held such allegation, 
analogous to those made by Lewellen, insufficient to 
state a claim with the narrow exception to Younger.

The only claim the Eighth Circuit has questioned 
whether Lewellen can adequately raise in state court in 
defense of the witness bribery charge is his First 
Amendment claim regarding the scheduling of his 
criminal trial. 843 F.2d at 1112 n.9. However, this finding 
is irrelevant to the issue of whether to enjoin his 
prosecution since: (1) Lewellen’s claim here is not based 
on why his prosecution was brought, but rather, why his 
trial was scheduled when it was; and (2) the fact that 
Lewellen was scheduled to be tried after his election 
goes against a finding it was calculated to impede his 
First Amendment rights.

18



THE EIGHTH CIRCUIT ERRED IN HOLDING THE 
DISTRICT COURT’S FINDING OF A RETALIA­
TORY OR “BAD FAITH” PROSECUTION NOT 
CLEARLY ERRONEOUS.

Even applying the less stringent Fifth Circuit 
standard, the findings of the District Court cannot 
support the entry of a preliminary injunction. In both 
opinions, the Eighth Circuit has refrained from 
addressing the strength of the evidence or the 
seriousness of the charges against Lewellen.

The first Eighth Circuit opinion described the 
District Court’s opinion as “somewhat cryptic as to the 
precise basis for the District Court’s findings [that 
prosecution brought in bad faith for the purpose of 
retaliation]”. 843 F.2d at 1110 (Appendix A 19). There 
the Eighth Circuit went on to state: “Moreover it is of no 
significance that the district court’s findings concerning 
the impermissible purposes behind the prosecution are 
irrelevant to the issue of whether the prosecutors had a 
reasonable expectation of obtaining a conviction.” 843 
F.2d at 1112 (Appendix A 25). In contrast, the Eighth 
Circuit’s second opinion, 851 F.2d at 1110, states the 
district court “fully satisfied” Hightower's requirement 
that “ ‘the strength of the evidence and the seriousness 
of the charges should be considered in determining if 
retaliation or bad faith exists,’ 693 F.2d at 369.” The two 
findings are irreconcilable.

19



The second Eighth Circuit opinion, after holding it 
need not consider the state’s evidence, inconsistently 
stated the district court “ reviewed the evidence of 
Lewellen’s allegedly criminal activities at length” in 
concluding there is no expectation of conviction, 851 
F.2d at 1110. However, the district court failed to even 
mention Lewellen’s admitted and incriminating 
statements (see 843 F.2d 1107 n.4, 1108) or Arkansas’ 
bribery statute (843 F.2d at 1107 n.5), which serve as the 
principal bases for his being charged. In this regard, the 
district court found a substantial likelihood that 
Lewellen will establish there is no reasonable 
expectation of his conviction solely based (1) on the poor 
quality and alleged gaps in certain tape-recorded 
statements and (2) on its finding that Lewellen would 
likely demonstrate that lawyers commonly act as 
intermediaries to have criminal charges dropped. 649 F. 
Supp. at 1233. The district court’s findings here are 
clearly erroneous and fail to satisfy the district court’s 
responsibility to scrupulously consider the strength of the 
evidence and the seriousness of the charges against 
Lewellen.

First, the district court, to support its conclusion, 
apparently reasoned that the alleged gaps in Tapes E-2 
and E-4 would render them inadmissible in state court by 
finding their prejudicial effects . . . outweigh any 
probative value.” Id. at 1233. As an initial matter, it is 
within the exclusive authority of the state trial court, not 
the federal court, to determine the admissibility of

20



evidence in Lewellen’s criminal trial. Samuels v. Mackell, 
401 U.S. 66, 72-73 (1971). Thus, the federal district court 
improperly reached issues that will determine the 
outcome of pending state criminal proceedings. Id.; 
Feaster v. Miksch, 846 F.2d 21, 24 (6th Cir. 1988). See also 
Deakins v. Monaghan, 108 S.Ct. 523, 533 (1988) (White, 
J. concurring) (Younger and Samuels counsel against 
federal court’s disposition of Fourth, Fifth and Sixth 
Amendment issues due to potential res judicata effect on 
state criminal proceeding.) More importantly, however, 
Lewellen admitted in federal court that he made all the 
incriminating statements upon Tapes E-2 and E-4 and in 
fact stipulated that these tapes and the transcript 
prepared from them are the best evidence of what 
occurred during these conversations (T. 565).

Second, the district court’s finding that Lewellen 
could likely demonstrate that lawyers commonly serve as 
“intermediaries” to have charges dropped is also 
irrelevant and clearly erroneous. Lewellen admitted he 
negotiated a secret agreement whereby Mrs. Patterson 
would be paid $500.00 in exchange for her agreement to 
“drop the charges.” (T. 557, 558, 559, 563; see also Tape 
E-2 at 843 F.2d 1107 f.4, and Tape E-4, at 843 F.2d 
1108). Lewellen has further admitted that prior to these 
conversations he was aware that the prosecutors had 
listed Mrs. Patterson and her daughter as witnesses for 
the State. (T. 599, 600). The glaring distinction between 
Lewellen’s admitted conduct and that of an attorney 
serving as an intermediary to have the charges dropped

21



is underscored by his adamant directive to the Banks 
family and Ms. Patterson to keep the agreement secret, 
especially from the prosecutors and the court:

What we talk about here will never go any 
further. That is a solemn word on everybody’s 
part, okay?

843 F.2d at 1107, n.4.

If Lewellen was acting as an intermediary, it was 
clearly not in cooperation with the prosecutor or the 
court to have the charges dropped, but rather to have 
Mrs. Patterson bribed. The next day Lewellen made 
crystal clear that he was attempting to induce Mrs. 
Patterson to refuse to testify, stating to her:

See, it’s up to you in the sense that if you and 
your child don’t come up here, then they’re 
going to drop it. They can’t make you come to 
no courtroom and testify to nothing. I don’t give 
a shit if they subpoena you. You don’t have 
to -you  can go up there and say, “I ain’t got 
nothing to say.” You understand? Huh?

843 F.2d at 1108.

THE DISTRICT COURT’S FINDINGS WERE 
CLEARLY ERRONEOUS

The trial court s finding that Lewellen sufficiently 
proved his prosecution was retaliatory is clearly

22



erroneous. Lewellen’s three convoluted theories are 
supported by nothing more than tenuous chain of 
inferences as follows:

A. Evidence The Prosecution Motivated By Lewellen’s 
Race

The sole evidence relied upon by the Eighth Circuit 
and the District Court to support this allegation is the 
testimony of Neal, a black attorney who initiated the 
investigation leading to the charges against Lewellen. 
Neal, who had never tried a case against either Raff or 
Cahoon before a jury, merely testified in his opinion 
black attorneys were subjected to disparate treatment by 
Raff and Cahoon. There is simply no evidence linking 
the motivation behind Lewellen’s prosecution to his 
race. Moreover, the district court made no such finding.

B. Evidence Lewellen’s Prosecution Motivated By His 
Vigorous Defense of Banks

Where, as here, the prosecutors were presented 
with more than ample evidence that Lewellen’s vigorous 
defense of Banks included his bribing of the state’s key 
witness, they were duty bound to pursue Lewellen’s 
prosecution.

The sole evidence to support Lewellen’s theory 
here is the disputed testimony of Lewellen and Blount 
regarding their conversations with Sheriff May, who had

23



no part in the decision to prosecute. They testified May 
suggested Lewellen should apologize for his 
unprofessional conduct in the September 9, 1985, 
“special proceeding” (T. 278-283, see also 1071). It is 
undisputed both Blount and Lewellen considered May a 
friend and confidant and sought his advice. At most, 
their testimony merely establishes that May advised 
Lewellen to apologize and “insinuated” that to do so 
might help persuade the prosecutors not to prosecute (T. 
277). Most importantly these conversations occurred 
after all of Lewellen’s incriminating statements had been 
made.

C. Evidence Lewellen’s Prosecution Motivated 
By His Political Campaign

There is no evidence that the prosecutors or the 
circuit judge even knew of Lewellen’s plans for political 
office at the time the charges were brought, or for that 
matter if they even cared. To the contrary, Lewellen was 
charged in September of 1985, a time when Lewellen 
was not even a candidate. (T. 482). Furthermore there is 
no evidence that Lewellen’s political opponent was 
supported by any defendant in this case. (T. 1061).

The Eighth Circuit’s reliance on the resetting of 
Lewellen s trial to November 17, 1986, as evidence that 
his prosecution in 1985 was politically motivated is 
misplaced. Lewellen had previously secured numerous 
continuances of trial dates scheduled before the election.

24



The November, 1986, date was after the election. 
Moreover, Lewellen’s trial date was reset over a year 
after he was charged with full probable cause and over- 
six months after he sought federal court injunctive relief. 
Thus, its relevance to whether the charges were brought 
in bad faith is highly tenuous.

Lewellen’s purported proof of a retaliatory 
prosecution “ is nothing more than a tenuous chain of 
inferences unsupported by evidence or reason.” Smith, 
693 F.2d at 373. Furthermore, neither the district court 
nor either panel opinion mentions or addresses the 
seriousness of the bribery charge, a class C felony 
punishable by 3 to 10 years imprisonment, as the second 
prong in Hightower requires. 693 F.2d 370 n.27. In this 
regard the official commentary to Arkansas’s Witness 
Bribery Statute, Ark. Code Ann. §5-53-108 (1987), 
removes any doubt about the seriousness of the acts 
attributed to Lewellen:

To the extent the section reaches a mere offer, 
it establishes an inchoate offense. This reflects 
the commission’s view that the conduct 
described is so deleterious to the administration 
of justice that attempts are justifiably graded 
with the same severity as the consummated 
offense.

25



CONCLUSION

This case classically exemplifies why the 
constitutional principles of comity and federalism are so 
important in the Younger abstention context even at 
preliminary injunction stage. Lewellen has attempted to 
manipulate the state criminal justice system by allegedly 
bribing the state’s key witness in his client’s rape trial. 
Lewellen has successfully manipulated the federal 
judicial system to unreasonably delay and possibly bar 
his state criminal prosecution. Lewellen’s admitted 
statements to Mrs. Patterson, never mentioned by the 
district court, are more than ample to support his 
conviction for bribeiy. The strong evidence of Lewellen’s 
criminal violation supports the inference that in bringing 
the charges, the prosecutors were motivated by nothing 
more than fulfilling their sworn duty. Hightower, 693 F.2d 
at 371. By contrast, the evidence Lewellen presented to 
support his allegation that his prosecution was 
retaliatory “is nothing more than a tenuous chain of 
inferences unsupported by the evidence or reason.” Id  at

The state criminal justice system will be severely 
handicapped if, as here, federal trial courts allow 
criminal defendants to thwart their state court 
prosecution based upon such a scant showing the 
prosecution is motivated “ in part” by some 
impermissible purpose while ignoring the most relevant

26



evidence, the state s evidence of a criminal violation. 
The federal court must scrupulously review the strength 
of the state’s evidence and the seriousness of the charges 
in granting a preliminary injunction to a pending state 
criminal prosecution. Id. at 370 n.27. Since the Eighth 
Circuit stands alone in refusing to impose this 
requirement, certiorari should be granted.

Respectfully submitted,

John Steven Clark, E sq. 
A rkansas A ttorney G eneral 
200 Tower Building 
Little Rock, Arkansas 72201 
(501) 682-2007 
Counsel of Record

By D avid S. M itchell, E sq. 
A ssistant A ttorney G eneral 
Counsel for Petitioners

27



APPENDIX



UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

No. 87-1069

Roy C. Lewellen, Jr.,
Appellee,

v.

Gene Raff, individually and in 
his official capacity as 
Prosecuting Attorney for the 
First Judicial District of 
Arkansas; David Cahoon, 
individually and in his 
official capacity as Deputy 
Prosecuting Attorney for Lee 
County, Arkansas; Henry 
Wilkinson, individually and in 
his official capacity as 
Circuit Court Judge for the 
First Judicial District of 
Arkansas,

Appellants.



Lafayette Patterson; Jeanne 
Kennedy; Doug Williams; Lee 
County, Arkansas; Robert May, 
Jr., individually and in his 
official capacity as Sheriff 
of Lee County.

Lafayette Patterson

v.

Robert Banks; Margie Banks; 
Reverend Almore Banks.

No. 87-1100

Roy C. Lewellen, Jr.,
Appellee,

v.

Gene Raff, individually and in 
his official capacity as 
Prosecuting Attorney for the 
First Judicial District of 
Arkansas; David Cahoon, 
individually and in his 
official capacity as Deputy 
Prosecuting Attorney for 
Lee County, Arkansas;

A  2



Lafayette Patterson; Jeanne 
Kennedy;

Doug Williams,

Appellant.

Lee County, Arkansas; 
Robert May, Jr., individually 
and in his official capacity 
as Sheriff of Lee County; 
Henry Wilkinson, individually 
and in his official capacity 
as Circuit Court Judge for the 
First Judicial District of 
Arkansas.

Lafayette Patterson

v.

Robert Banks; Margie Banks; 
Reverend Almore Banks.

No. 87-1101

Roy C. Lewellen, Jr.,
Appellee,

v.

A 3



Gene Raff, individually and 
in his official capacity as 
Prosecuting Attorney for the 
Eastern Judicial District of 
Arkansas; David Cahoon, 
individually and in his 
official capacity as Deputy 
Prosecuting Attorney for 
Lee County, Arkansas; 
Lafayette Patterson; Jeanne 
Kennedy; Doug Williams; 
Lee County, Arkansas;

Robert May, Jr., individually 
and in his official capacity 
as Sheriff of Lee County,

Appellant.

Henry Wilkinson, individually 
and in his official capacity 
as Circuit Judge for the 
First Judicial District of 
Arkansas.

Lafayette Patterson



Robert Banks; Margie Banks; 
Reverend Almore Banks.

No. 87-1103

Roy C. Lewellen, Jr.,

Appellant,

v.

Gene Raff, individually and 
in his official capacity as 
Prosecuting Attorney for the 
First Judicial District of 
Arkansas; David Cahoon, 
individually and in his 
capacity as Deputy 
Prosecuting Attorney for 
Lee County, Arkansas,

Appellees.

Lafayette Patterson; Jeanne 
Kennedy; Doug Williams; Lee 
County, Arkansas; Robert 
May, Jr., individually and 
in his official capacity as 
Sheriff of Lee County;
Henry Wilkinson, individually



and in his official capacity 
as Circuit Court Judge for the 
First Judicial District of 
Arkansas.

Lafayette Patterson

v .

Robert Banks; Margie Banks;
Reverend Almore Banks.

Appeals from the United States District Court 
For the Eastern District of Arkansas.

Submitted: October 14, 1987 
Filed: April 4, 1988

Before LAY, Chief Judge, ARNOLD and BOWMAN, 
Circuit Judges.

LAY, Chief Judge.

At issue is the serious question whether the federal 
district court1 erred in not exercising Younger1 2 abstention 
by enjoining a criminal prosecution brought by the State

1 The Honorable George Howard, Jr., United States District Judge for the Eastern 
District of Arkansas.

"  Youn2er v. Harris. 401 U.S. 37 (1971).



of Arkansas against a black attorney in Lee County, 
Arkansas. We affirm the grant of the temporary 
injunction. We reverse in part the district court’s rulings 
on the section 1983 damages claims.

I. Background

On June 7, 1984, Reverend Almore Banks, a black 
minister, was charged-with rape in the Circuit Court of 
Lee County, Arkansas. The alleged victim was Latonia 
Wilbun, the eleven-year-old daughter of Mrs. Lafayetta 
Patterson.3 Mrs. Patterson’s husband, Joe Lewis 
Patterson, is the brother of Rev. Banks’s wife, Margie 
Banks. The Pattersons are also black.

Rev. Banks engaged Roy Lewellen, a black 
attorney, to represent him. Mrs. Patterson employed 
Oily Neal, also a black attorney, to represent her interest 
and the interest of her daughter in the criminal 
prosecution. Lee County Prosecutor Gene Raff and 
Deputy Prosecutor David Cahoon, both white, 
represented the state in the proceeding.

Jury selection in Banks’s trial began Tuesday, 
September 3, 1985, with Judge Harvey Yates presiding. 
On Thursday, September 5, Neal contacted Deputy 
Prosecutor Cahoon to inform him that Mrs. Patterson 
was being pressured to “drop the charges” against Banks. 
Mrs. Patterson claimed that the pressure was coming

Mrs. Patterson is referred to both as Lafayette and Lafayetta in the record and in 
the parties’ submissions.



rom her husband, from Rev. and Margie Banks, and 
from Rev. Banks’s brother, Robert.

Mrs. Patterson and others testified about the events 
that took place that Wednesday that prompted Neal to 
contact the prosecutor. Robert Banks came to the 
Patterson house on Wednesday morning and discussed 
the pending charges against Rev. Banks with the 
Pattersons. The three of them reached an apparent 
agreement that if Mrs. Patterson would drop the charges, 
Rev. Banks would leave town. Mrs. Patterson, however, 
claims that she did not then or ever actually intend to 
drop the charges.

Mr. and Mrs. Patterson and Robert Banks then 
proceeded to Neal’s office, apparently to have him 
prepare a paper documenting their agreement. Margie 
Banks somehow was informed of or arranged the 
meeting at Neal’s office. She called Lewellen and 
informed him that he too should go to Neal’s office, 
because Mrs. Patterson was going to drop the charges 
against Lewell'en’s client.

When they arrived at Neal’s office, Mrs. Patterson 
met privately with Neal. She told him that she in fact had 
no intention of dropping the charges. Neal relayed this 
information to those assembled in his office. Mr. 
Patterson became angry, feeling that his wife had been 
steadily lying to him about dropping the charges. 
Lewellen left Neal’s office immediately, saying only,

AS



according to Mrs. Patterson, that he thought the family 
was going to solve it.

Later that day, after returning home, Mr. Patterson 
phoned Margie Banks and told her that Mrs. Patterson 
was indeed going to drop the charges. Mrs. Patterson 
claims she led her husband to believe this because she 
was afraid of him and wanted everyone to leave her 
alone. After a series of phone calls, it was arranged that 
Lewellen would bring Rev. and Margie Banks to the 
Patterson home. Robert Banks was also present at this 
meeting. Lewellen did not stay at the meeting.

The parties again reached an apparent agreement 
that Mrs. Patterson would drop the charges, Rev. Banks 
would leave town, and Mrs. Patterson would be 
reimbursed by the Bankses for $500 attorney’s fee she 
had incurred by retaining Neal to represent her interests. 
Lewellen later returned to pick up his client. He did not 
wish to hear what happened at the meeting, stating 
something to the effect of, “ look here, if you all are 
going to settle this, settle it with your family. I don’t want 
to have anything to do with it. I don’t want to know 
what’s going on.”

These were the events that, when relayed to Neal, 
prompted him to call Deputy Prosecutor Cahoon. 
Cahoon then told Prosecutor Raff and Lee County 
Sheriff Robert May that he had received information 
suggesting that bribes were being offered to Mrs.



Patterson by Rev. Banks to induce her to drop the 
charges. At the direction of the prosecutors, May 
requested investigatory assistance from the Arkansas 
state police. May informed the state pofice that 
electronic surveillance equipment might be needed to 
conduct the investigation.

Later that day, Sgt. Douglas Williams of the state 
police arrived in town to begin assisting in the 
investigation, bringing with him his electronic 
surveillance equipment. Williams, May, and Cahoon met 
with Mrs. Patterson and Neal at the Marianna jail to 
discuss Mrs. Patterson’s complaint. Jeanne Kennedy, a 
victim s advocate and child abuse and rape counselor, 
was also present. Mrs. Patterson was equipped with a 
hidden body microphone and directed to engage in 
conversation with Mr. Patterson and others to 
corroborate her allegations. Although Rev. Banks was an 
investigatory target at this point, Lewellen was not.

Mrs. Patterson left the jail, found her husband at 
the local ball field, and told him that she would agree to 
drop the charges if Rev. Banks left town and the parties 
adhered to their agreement of the day before. She also 
told him that she wanted a lawyer to draft a document 
setting forth Rev. Banks’s agreement to leave town. Mrs. | 
Patterson then made a series of phone calls. The 
Pattersons’ part of these conversations was recorded by 
Sgt. Williams, who operated a receiving and recording 
device in a car parked near the Patterson home. The

A  10



tape, referrcil to as “E-l,” contains at least two and 
allegedly more gaps in transmission.

That night the Pattersons and the three Bankses 
met with Lewcllen at Lewellen’s office. Mrs. Patterson 
was still equipped with a body microphone, and the 
conversation was recorded.4 Later that night, the tape

The relevant portion of that tape, identified as “ E-2,” contains the following 
conversation:

BL [Lewellen]: ♦  * * Reverend, it is the understanding that you and your 
wife are going to go somewhere. Is that ya’ll’s understanding?

AB [Rev. Banks]: I’m sticking to my commitment.

BL: The commitment is, and what I have heard her say that what she 
wants from you, and that thing being gone. I don’t want you moving 
tomorrow. That’s what I’m saying, and because that is going to bring up 
some bunch of suspicion, okay? We don’t want that. We need time.

AB: We need time to relocate.

BL: You see, what I am saying and the word and wait, and it is this. What 
we talk about here will never go any further. That is a solemn word on 
everybody’s part, okay? And I said that because it is not going to do any 
one person any good to try to embarrass the other, and it is just going to 
raise something else up again, and then we are all in this mess over 
again, so if ya’Il are sincere in what your agreement and you are making, 
that is fine with me.

MB [Margie Banks]: That’s right. It ain’t nobody’s business.

BL: There was also some understanding that she feels that there is some 
reimbursement necessary for attorney fees. That’s what your brother 
advises on the telephone. I think you agree to that; is that right?

AB: That’s correct.

BL: Okay, and that is $500.00 and she has both of ya’Il word.

MB: Uh huh. (yes).

BL: That is all to be done, is that right? Is that right, Reverend.

AB: That’s right.

A  11



f 1 *ti |; ijW

was played for Prosecutor Raff at Sheriff May’s home 
and transcribed at the office of a private law firm with 
which Cahoon was associated. The prosecutors 
suggested the need, under the Arkansas witness bribery 
statute,5 for further investigation to clarify what 
Patterson was being induced to do.

The next day, Sgt. Williams took a statement from 
Mrs. Patterson. Because of Raff’s suggestion the night * 1

BL: * * * Like I say, ya’ll know what your agreement are; ya’ll don’t need me, 
and that is why I’m telling you that if you are going to work it out, work it 
amongst your family so that is what it will be. The least that I have 
involvement in it the better because I swear to God, I don’t put nothing past 
tolks, and if they ever felt that I was intimidating anybody or trying to 
persuade a witness out or something or to do some stuff like that, Gene 
Raff and I am going to be honest with you — that white man and me have 
mixed up some bad blood these last three days. It has almost gotten down to 
some plain out cussing. I mean it has been bad, so anything that he could 
right now at this point to use against me or hurt me, he would do it. It has 
gotten past a job to him and gotten personal; him and David — it has got past 
that, and anything they could do They would send somebody wired up with 
tape recorders on them. I ’m serious. I’m telling you, you have to watch it. If 
you don t believe it, just ask Jimmie Wilson, cause I ’d always believe they 
done put folks on him. I don’t want them with me standing in front of a grand 
jury saying I been over there siminating (?) somebody and all that kind of 
stuff. That’s what they would do.

The Arkansas witness bribery statute, Ark. Stat. Ann. §5-53-108 (1987) provides 
in pertinent part:

(a) A person commits witness bribery if:

(1) He offers, confers, or agrees to confer any benefit upon a witness or 
a person he believes may be called as a witness with the purpose of:

(A) Influencing the testimony of that person; or

(B) Inducing that person to avoid legal process, summoning him to 
testify; or

(C) Inducing that person to absent himself from an official pro­
ceeding to which he has been legally summoned * * *.

A  12



*

before, Mrs. Patterson attempted to reach Lewellen by 
telephone. When they eventually spoke, their phone 
conversation was recorded. This tape recording, 
identified as “E-4,” contained the following statement by 
Lewellen:

See, it’s up you in the sense that if you and your 
child don’t come up there, then they’re going to 
drop it. They can’t make you come to no 
courtroom and testify to nothing. I don’t give a 
shit if they subpoena you. You don’t have 
to —You can go up there and say, “I ain’t got 
nothing to say.” You understand? Huh?

Rev. Banks’s rape trial resumed on Monday, 
September 9. Before any jurors were called, prosecutors 
Raff and Cahoon informed Judge Yates that there was a 
matter that they were required to bring to his attention. 
They proceeded to place on the record, in closed 
proceedings, their outline of the witness bribery 
investigation. Mrs. Patterson and Sgt. Williams testified 
about the alleged bribery and the investigation. Lewellen 
was not allowed to cross-examine these witnesses, nor 
did Judge Yates allow Lewellen to present witnesses in 
his own or Rev. Banks’s behalf. Lewellen was permitted 
only to make a statement addressing the effect of what 
had transpired on Rev. Banks’s rape trial.

After a brief recess, Judge Yates sua sponte 
declared a mistrial. He also stated that he intended to

A  13



send a transcript of that day’s proceedings to the 
Arkansas Supreme Court Committee on Professional 
Conduct.

On September 27, Sheriff May executed an 
affidavit in support of an information charging Lewellen 
and Rev. Banks with witness bribery and conspiracy to 
commit witness bribery. That same day, the prosecutors 
presented the information to Municipal Judge Dan 
Felton, III. Lewellen’s case was placed on the Lee 
County Circuit Court criminal docket and set for trial for 
February 7, 1986. Upon Lewellen’s motion, his trial was 
continued to May 19, 1986.

On April 28, 1986, Lewellen brought suit in federal 
court against Prosecutors Raff and Cahoon, Sheriff May, 
Sgt. Williams, Lee County, Lafayetta Patterson, and 
Jeanne Kennedy. Lewellen later added as a defendant 
Judge Henry Wilkinson, who was due to preside over 
Lewellen’s criminal trial in Lee County Circuit Court. 
Lewellen sought damages and injunctive and declaratory 
relief6 under 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 
1988 for alleged violations of his rights under the first, 
fourth, fifth, thirteenth, and fourteenth amendments. He 
also asserted pendent state law claims. The gist of 
Lewellen’s complaint was that the defendants conspired 
to and did investigate and prosecute him because of his 
race and to retaliate against him for exercising his 
constitutional rights.

Lewellen sought only declaratory and injunctive relief against Judge Wilkinson.



After a number of continuances, Lcwellen’s state 
criminal trial was finally scheduled for November 17, 
1986. On October 27, 1986, Lewellen moved the federal 
court for a temporary restraining order to enjoin the 
prosecutors and Judge Wilkinson from going forward 
with the state criminal trial. The district court granted 
this motion on November 14 and set a hearing on 
Lewellen’s motion for a preliminary injunction.

Following a six-and-one-half-day hearing, the 
district court issued a preliminary injunction barring the 
state officials from proceeding with Lewellen’s criminal 
trial pending adjudication of Lewellen’s federal court 
action on the merits. Lewellen v. Raff, 649 F. Supp. 1229 
(E.D. Ark. 1986). One week later, on December 15, 
1986, the district court ruled on a number of other 
motions; these orders, from which various parties 
appeal, are discussed in succeeding sections.

II. Discussion

A. Preliminary Injunctive Relief

Prosecutors Raff and Cahoon and Judge Wilkinson 
appeal from the district court’s entry of a preliminary 
injunction barring them from proceeding with the state 
criminal case against Lewellen. For reversal, they argue 
that the district court should have abstained from 
exercising jurisdiction, pursuant to the principles of 
Younger v. Harris, 401 U.S. 37 (1971). They also argue

A 15



that the district court applied an erroneous legal 
standard to determine whether the preliminary 
injunction should issue. We turn first to the question of 
Younger abstention.

In Younger, the Supreme Court held that federal 
courts as a rule abstain from exercising jurisdiction when 
asked to enjoin pending state criminal proceedings. Id. at 
56.7 The Younger abstention doctrine is a reflection of 
the public policy that disfavors federal court interference 
with state judicial proceedings. The doctrine is based on 
comity and federalism. See Ronwin v. Dunham, 818 F.2d 
675, 677 (8th Cir. 1987) (citing Younger, 401 U.S. at 44).

Despite the concerns underlying the Younger 
abstention principle, however, in certain cases the duty 
of the federal courts to vindicate and protect federal 
rights must prevail over the policy against federal court 
interference with state criminal proceedings. The federal 
courts have consistently and repeatedly affirmed that 
their abhorrence of enjoining a pending state pros­
ecution must yield when the state prosecution threatens 
a party with “great and immediate irreparable injury.” 
See, e.g., Younger, 401 U.S. at 56; Dombrowski v. Pfister, 
380 U.S. 479, 485-87 (1965); Collins v. County of Kendall, 
807 F.2d 95, 98 (7th Cir. 1986), cert, denied, 107 S. Ct.

In § 1983 cases such as this one, the doctrine is not grounded in the Anti- 
Injunction Act, 28 U.S.C. § 2283 (1982), which prohibits federal injunctions 
against state court proceedings, because actions brought under § 1983 arc within 
the "expressly authorized” exception to the ban on federal injunctions See 
Mnchum v. Foster. 407 U.S. 225, 243 (1972). ----

A  16



3228 (1987); Rowe v. Griffin, 676 F.2d 524, 525 (11th Cir. 
1982); Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir.), 
cert, denied, 452 U.S. 916 (1981); Munson v. Janklow, 563 
F.2d 933, 935 (8th Cir. 1977); Timmerman v. Drown, 528 
F.2d811, 815 (4th Cir. 1975).

The requisite threatened injury must be more than 
simply “the cost, anxiety, and inconvenience of having to 
defend against a single criminal prosecution * * *. ” 
Younger, 401 U.S. at 46. The injury threatened is both 
great and immediate, however, when “defense of the 
State’s criminal prosecution will not assure adequate 
vindication of constitutional rights,” Dombrowski, 380 
U.S. at 485, or when the prosecution is initiated in bad 
faith or to harass the defendant. See, e.g., Cameron v. 
Johnson, 390 U.S. 611, 617-18 (1968); Central Ave. News, 
Inc. v. City o f Minot, 390 U.S.F.2d 565, 568-70 (8th Cir. 
1981). In the context, bad faith “generally means that a 
prosecution has been brought without a reasonable 
expectation of obtaining a valid conviction.” Kugler v. 
Helfant, 421 U.S. 117, 126 n.6 (1975); see also Central 
Ave. News, 651 F.2d at 570. Bad faith and harassing pros­
ecution also encompass those prosecutions that are 
initiated to retaliate for or discourage the exercise of 
constitutional rights. See, e.g., Younger, 401 U.S. at 48 
(Dombrowski defendants were threatened with great and 
immediate irreparable injury because prosecutions were 
initiated “to discourage them and their supporters from 
asserting and attempting to vindicate the constitutional 
rights of Negro citizens of Louisiana.”) (quoting

A  17



Dombrowski, 380 U.S. at 482); Heimbach v. Village of 
Lyons, 597 F.2d 344, 347 (2d Cir. 1979) (per curiam) 
(allegation that state criminal prosecution was initiated 
to chill first amendment rights sufficient to remove 
Younger bar against federal court interference).

A showing that a prosecution was brought in 
retaliation for or to discourage the exercise of 
constitutional rights “will justify an injunction regardless 
of whether valid convictions conceivably could be 
maintained.” Fitzgerald v. Peek, 636 F.2d 943, 945 (5th 
Cir. 1981) (emphasis added). The state does not have 
any legitimate interest in pursuing such a prosecution; 
“[pjerhaps the most important comity rationale of 
Younger deference-that of respect for the State’s 
legitimate pursuit of its substantive interests —is 
therefore inapplicable.” Wilson v. Thompson, 593 F.2d 
1375, 1383 (5th Cir. 1979) (citations omitted).

We turn to our review of the district court’s 
decision with these principles in mind. We can disturb 
the district court s decision only if its factual findings are 
clearly erroneous or if it committed an error of law. See 
CentralAve., 651 F.2d at 569.

After hearing testimony and receiving documentary 
evidence over a six-day period, the district court made 
two critical factual findings that persuaded it to issue the 
preliminary injunction:

A  18



Lewellen has demonstrated that the criminal 
prosecution initiated by Raff and Cahoon 
against Lewellen was brought in bad faith for 
the purpose of retaliating for the exercise of his 
constitutionally protected rights. This Court is 
of the opinion that the criminal charges 
instituted against Lewellen would not have been 
filed absent the desire to retaliate against 
Lewellen for exercising his federally protected 
rights.

Lewellen v. Raff, 649 F. Supp. 1229, 1232 (E.D. Ark. 
1986). Although the district court’s opinion is somewhat 
cryptic as to the precise bases for these findings, based 
on our review of the record, we cannot say that they are 
clearly erroneous.

The allegations in Lewellen’s complaint painted a 
picture of pervasive racism and discriminatory treatment 
of blacks in the Lee County court system. Lewellen 
alleged that he, as a black attorney, had received 
disparate treatment from that accorded white attorneys 
by both the prosecutors and the closely-aligned circuit 
court judges. He claimed that the prosecutors initiated 
charges against him: (1) because of his race; (2) because 
he had vigorously attempted to defend his client, Rev. 
Banks, against the rape charge; and (3) because they 
wished to thwart Lewellen’s campaign for state office 
against a political ally of Sheriff May.

A  19



In support of these allegations, Lewellen presented 
the testimony of eight witnesses at the preliminary 
injunction hearing. The district court credited the 
testimony of Lewellen and Sam Blount, a local 
businessman, as supporting the allegation that the 
prosecution was initiated because of the prosecutors’ 
desire to retaliate against Lewellen for his vigorous
defense of Banks. The district court relied on the 
following evidence:

Lewellen testified that during the juiy selection 
in the rape case he was defending, he objected 
to the procedure being employed by the trial 
judge and received a strong admonishment 
from the trial judge in open court; that later, he 
saw the trial judge and Raff eating lunch 
together in the Lee County jail and advised the 
trial judge that he, Lewellen, wanted to renew 
his objections to the jury selection procedure 
when the trial resumed. Again the trial judge 
harshly rebuked Lewellen for questioning the 
judge’s integrity. Lewellen states that this is the 
conduct that displeased Raff and the judge.

*  *  *

Lewellen also testified that Sheriff May advised 
him that he needed to take steps to apologize to 
the trial judge and Raff if he wanted, in effect, 
to get back in their good graces and minimize

A  20



the consequences that could flow from 
Lewcllen’s criminal case.

*  *  *

Lewellen testified that Sheriff May advised him 
that he, Lewellen, should go to Raff and 
apologize and that he could avoid some of the 
difficulties confronting him. Lewellen further 
testified that Sheriff May said that in 1972, 
when May was under investigation by a Lee 
County Grand Jury, May went to Raff and 
apologized to Raff and “Gene fixed the Grand 
Jury.”

Lewellen, 649 F. Supp. at 1232 and n.4, 1234.

The testimony of Sam Blount also supports the 
district court’s finding of retaliatory prosecution. Blount 
testified that Sheriff May said, in effect, that criminal 
charges might be brought against Lewellen because the 
prosecutors were displeased by Lewellen’s conduct of the 
defense of Banks in the state rape trial.8

The questioning of Sam Blount was as follows:

O. [By Mr. Hairston, attorney for Lewellen] Okay Now, vou had a 
discussion about sonic potential charges, then, with Sheriff May?

A. That’s correct.

A  21



As evidence that Lewellen’s prosecution was 
initiated at least in part because Lewellen is black,

Q. Did Sheriff May indicate to you why such charges might be brought 
against plaintiff Lewellyn [sic]?

A. Yes, he did.

Q. And what did he say?

A. The sheriff explained when 1 was in his office that attorney Lewellyn 
[sic] had a manner the day before or a couple of days before during a 
court session that was very much unprofessional and unruly for a court 
or for a court officer.

Q. Now, did you execute an affidavit in this matter?

A. Yes, sir, I did.

Q. Do you recall what you put in that affidavit?

A. Yes, sir.

Q. What was that, sir?

A. That the sheriff emphasized, his emphasis were that he was very, very 
disappointed and that he thought that Bill had done some things that 
would cause the prosecutor of our county, as well as the judge, to not 
cooperate with him during the court session. I understand that they were 
overruling all of attorney Lewellyn’s [sic] objections, and that was 
basically how I received, from my intelligence, that was the payback 
situation.

Q. Did he indicate to you that the conduct of Mr. Lewellyn [sic] during 
that court session you referred to towards defendant Raff and Cahoon 
might cause some problems for Mr. Lewellyn [sic], some legal problems 
for Mr. Lewellyn [sic]?

A. Yes, sir, that he very well may be charged.

O- Okay. Do you remember any specific language that Sheriff May used 
in terms to indicate the nature of the conduct?

A. Yes, sir, 1 think he said he had shown his butt in the courtroom, how 
he had acted and that he had pissed everybody off. And I think that 
"everybody” was to include the officers of the court, the prosecutor, 
deputy prosecutor and the judge.

A  22



the district court referred to the testimony of Neal, 
an attorney who had practiced law in Lee County for 
approximately seven years. Lewellen, 649 F. Supp. at 
1233 n.8. Neal testified about the disparate treatment 
black attorneys were subjected to by Raff and 
Cahoon. The district court also stated that “the 
evidence describefs] an environment in which 
Lewellen will not be assured adequate vindication of 
due process and equal protection in the Lee County 
Circuit Court * * Id. at 1233.

Finally, as evidence that Lewellen’s prosecution 
was motivated by the prosecutors’ desire to retaliate 
for and discourage Lewellen’s exercise of his first 
amendment rights, the district court found that:

The scheduling of Lewellen’s criminal case for 
trial on October 10, 1986, for November 17,

Q. What was the payback situation, sir?

A. That was the lack of cooperation by anybody that day because of how 
attorney Lewellyn [sic] had acted.

Q. Would you repeat that?

A. The statement was made that all of his objections were overruled. I’m 
not an attorney so I’m just trying to relate it how I recollect it. That all 
of his objections were overruled and that he was not able to get 
anything across during the court session because of how he had act, 
and that was kind of the payback to the point that the court was not 
listening to anything attorney Lewellyn [sic] was saying.

Q. Was there any discussion concerning any possible criminal charges 
that might be brought against Mr. Lewellyn [sic]1

A  23



1986, took place twenty-four (24) days prior to 
the General Election conducted on November 
4, 1986, in which Lewellen was running as an 
Independent against a Democratic incumbent, 
when Lewellen was defeated. This Court is of 
the opinion that there is a strong likelihood that 
Lewellen can establish that his opponent in the 
senatorial race made reference to this 
scheduling during the campaign, and that the 
scheduling was calculated to impede and impair 
his First Amendment rights.

Id. at 1232 n.5.9

The state officials argue that all of these findings 
are clearly erroneous, or, even if not erroneous, 
irrelevant, because “[t]he sole issue before this Court is 
whether the prosecutors had a reasonable expectation of 
obtaining a valid conviction of Lewellen.” We disagree 
with both assertions.

A. I think it was— I think the statement was insinuated by the sheriff that 
there were possibly some charges that may be brought against attorney 
Lewellyn [sic] unless he rectified the situation by going back and making an 
apology is what I think that the intentions were. "

Transcript at 275-77.

The district court did not specifically refer to this testimony in its opinion; 
nevertheless, it is our duty to examine the entire record to determine if the district 
court’s findings of retaliatory prosecution is clearly erroneous. See. e.e.. Anderson 
v. City' of Bessemer City. 470 U.S. 564. 574-75 nQSSl

We note that it is not clear that Lewellen would be able to raise these issues as 
defenses to a witness bribery charge. Cf. Kavlor v. Fields. 661 F.2d 1177 1182 (8th 
Cir. 1981).



First, the district court’s findings arc not irrelevant. 
The “bad faith and harassment” exception to the 
Younger abstention doctrine is applicable when criminal 
prosecutions are instituted for impermissible purposes.10 
All of the district court’s findings are directed toward 
that ultimate issue.

Moreover, it is of no significance that the district 
court’s findings concerning the impermissible purposes

In a thorough and thoughtful opinion, H. Lee Sarokin, a distinguished federal 
district judge, recently surveyed the types of impermissibly-motivated state 
prosecutions that have been held enjoinable under the bad faith exception to the 
Younger doctrine:

courts have found bad faith where prosecutors have instituted charges 
in violation of a prior immunity agreement, Rowe v. Griffin. 676 F.2d 524 
(11th Cir. 1982); where a prosecutor has pursued highly questionable 
charges against the plaintiff apparently for the sole purpose of gaining 
publicity for himself, Shaw v. Garrison. 467 F.2d 113  (5th Cir.), cert 
denied, 409 U.S. 1024, 93 S. Ct. 467, 34 L.Ed.2d 317 (1972); where a 
prosecution is motivated by a purpose to retaliate for or to deter the 
filing of a civil suit against state officers, Wilson v. Thompson. 593 F.2d 
1375 (5th Cir. 1979); and, specifically, where a prosecution has been 
instituted to harass and punish the federal plaintiffs having exercised 
their first amendment rights in criticizing public officials. Fitzgerald v. 
Peek, 636 F.2d 943 (5th Cir.) (per curiam), cert, denied. 452 U.S. 916,
101 S.Ct. 3051, 69 L.Ed.2d 420 (1981); see also Herz v. Degnan. 648 F.2d 
201, 209-10 (3d Cir. 1981) (state Attorney General’s institution of license 
revocation proceeding on grounds for which no authority existed 
strongly suggested that “bad faith” exception to Younger principle would 
apply, if Younger were relevant to proceeding in question); Bishop v.
State Bar of Texas. 736 F.2d 292 (5th Cir. 1984); Heimbach v. Village of 
Lyons. 597 F.2d 344, 347 (2d Cir. 1979); Timmerman v. Brown. 528 F.2d 
8 11 (4th Cir. 1975). The threat of multiple prosecutions may be 
additional evidence of bad faith, see, e.g„ Kxahm v. Graham. 461 F.2d 
703 (9th Cir. 1972), but is not inevitably required to establish bad faith. 
Fitzgerald v. Peek. 636 F.2d at 944; Wilson v. Thompson. 593 F.2d at 
1381. An injunction may also issue to enjoin consideration of charges by 
a demonstrably biased tribunal. Gibson v. Bcrrvhill. 411 U.S. 564, 577 93 
S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973).

Wichert v. Waller. 606 F. Supp. 1516, 1521 (D.N..I. 1985).

A  25



behind the prosecution are irrelevant to the issue of 
whether the prosecutors had a reasonable expectation of 
obtaining a conviction. As stated by the Fifth Circuit, “[a] 
bad faith showing of this type [ — retaliation 
prosecution — ] will justify an injunction regardless of 
whether valid convictions conceivably could be 
obtained.” Fitzgerald, 636 F.2d at 945 (emphasis added); 
see also Bishop v. State Bar, 736 F.2d 292, 294 (5th Cir. 
1984); cf. Wilson v. Thompson, 593 F.2d 1375, 1387 (5th 
Cir. 1979) (preliminary injunction of state criminal 
proceeding permissible if : (1) conduct retaliated against 
is constitutionally protected; and (2) prosecution is 
motivated at least in part by purpose to retaliate or 
deter). Because we find that the district court’s finding of 
retaliatory prosecution is not clearly erroneous, we 
therefore need not and do not address the issue whether 
the prosecutors entertained a reasonable expectation of 
obtaining a conviction of Lewellen.

Second, we cannot agree with the state officials 
that the district court’s findings are clearly erroneous. 
The district court credited the testimony of, among 
others, Lewellen, Neal, and Blount. As the Supreme 
Court has admonished,

[w]hen a trial judge’s finding is based on his 
decision to credit the testimony of one of two or 
more witnesses, each of whom has told a 
coherent and facially plausible story that is not 
contradicted by extrinsic evidence, that finding,

A  26



if not internally inconsistent, can virtually never 
he clear error.

Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985). 
We conclude that the district court’s factual findings 
were not clearly erroneous and that they adequately 
support its decision to issue a preliminary injunction.

The state officials also argue that the district court 
applied an erroneous legal standard in deciding to issue 
the preliminary injunction. They claim that the district 
court employed the general Dataphase standard for 
assessing propriety of injunctive relief rather than the 
more stringent standard required by Younger. See 
Dataphase Sys., Inc. v. C. L. Sys., Inc., 640 F.2d 109, 114 
(8th Cir. 1981) (four considerations are irreparable 
harm, balance of harms, probability of success on merits, 
and public interest). We disagree.

We first note that other cases in this circuit have 
used the traditional preliminary injunction standard even 
in the Younger abstention context. See Munson v. Gilliam, 
543 F.2d 48, 52 (8th Cir. 1976) (in case where Younger 
abstention was at issue, court stated that “[t]he grant of a 
preliminary injunction requires a showing of a strong 
likelihood of eventual success on the part of a grantee 
and a showing of irreparable harm * * *.”).

Moreover, the Younger standard and the general 
standard for injunctive relief are closely related,

A  27



being based on similar equitable principles. They differ 
in that the Younger standard requires a showing of “great 
and immediate” irreparable injury. We agree with the 
state officials that the district court’s opinion somewhat 
confusingly mingles discussion of the two standards. 
Nevertheless, the district court clearly applied the 
stringent “great and immediate irreparable injury” 
requirement, because it expressly made the factual 
findings necessary for a showing of great and immediate 
irreparable injury.

The state officials have also appealed from the 
district court’s denial of their motion for summary 
judgment with respect to injunctive relief. For the 
foregoing reasons, we affirm this order.

B. Prosecutorial Immunity

In an unpublished order issued one week after the 
preliminary injunction, the district court granted Raff 
and Cahoon absolute immunity from damages on 
Lewellen’s defamation claim. The court also granted 
Raff and Cahoon qualified immunity with regard to 
causes of action arising out of their role in the electronic 
surveillance of Lewellen. Lewellen appeals from these 
orders.

Lewellen attempted to state a cause of action 
against Raff and Cahoon for defamation,1 11 claiming that

1 Lewellen refers to this cause of action as “ federal defamation,” but we do not
address his assertion that “ defamation plus the violation of a substantive Due 
Process right states a claim under section 1983

A  28



they were responsible for release and publication of the 
tape recordings that purportedly established Lcwellen’s 
participation in witness bribery. The district court found 
that “the information which [Lewellen] contends is 
defamatory was disclosed by Raff and Cahoon during 
judicial proceedings in connection with the Banks trial.” 
Based on Imbler v. Pachtman, 424 U.S. 409 (1976), the 
district court concluded that the prosecutors were 
entitled to absolute immunity from damages on this 
claim. We agree.

In Imbler, the Supreme Court held that prosecutors 
are absolutely immune from damages claims arising out 
of their activities in initiating and presenting that state’s 
case. Id. at 431. Here, the only evidence of release of the 
tapes by the prosecutors was that they played the tapes 
for Judge Yates during Rev. Banks’s trial, so Judge Yates 
could decide if attempts had been made improperly to 
influence a witness. Such an activity is clearly “intimately 
associated with the judicial phase of the criminal 
process” and thus cannot give rise to prosecutorial 
liability. Id. at 430.

Lewellen also claimed that prosecutors Raff and 
Cahoon directed and participated in the allegedly illegal 
electronic surveillance of him. The district court found 
that the prosecutors were not entitled to absolute 
immunity on this claim because the surveillance was 
“investigative rather than judicial in nature.” The court 
found that the prosecutors were entitled to qualified



immunity, however, because their conduct did not violate 
any clearly established law.

Lewellen contends that the district court erred in 
finding the prosecutors qualifiedly immune. The 
prosecutors responded that they should have been held 
entitled to absolute immunity, but, if not, then the court 
was correct in finding them qualifiedly immune. We 
agree with the prosecutors that they are entitled to 
absolute immunity on these claims.

Most of the allegations in Lewellen’s complaint are 
facially insufficient to deprive the prosecutors of 
absolute immunity. The activities complained of 
-receiving complaints of criminal conduct, listening to 
tape recordings, reviewing statutes —are all part of a 
prosecutor’s familiar and traditional role of reviewing 
evidence and deciding whether to initiate a prosecution. 
As such, they are absolutely shielded from giving rise to
liability for damages. See Imbler, 424 U.S. at 430-31 and 
n.33.12

12 ~

• i more troublesome allegations may be disposed of quickly because there ic

itrSo'nV”;

■t .■ j* .

A  30



Lewellen’s more problematic allegation is that 
Deputy Prosecutor Cahoon assisted personally in the 
surveillance and taping of Lewcllen’s and others’ 
conversations. It is undisputed that Cahoon rode in the 
car with Sgt. Williams and Sheriff May when tapes E-l 
and E-2 were made; Sgt. Williams operated the receiving 
and recording device. Sgt. Williams testified that at one 
point during the evening, when Mrs. Patterson left her 
house, wearing the microphone, to go to Lewellen’s 
office, Cahoon joined Mrs. Patterson in her car and 
spoke with her.

Although it is a close question, we hold that 
Cahoon is entitled to absolute immunity for these 
activities, based on our recent decision in Williams v. 
Hartje, 827 F.2d 1203, 1210 (8th Cir. 1987). In Williams, 
we held that a prosecutor was immune from damages for 
claims arising out of his interviews with prison inmates 
conducted to determine if they had any knowledge of the 
circumstances of the death of an inmate. The 
prosecutor’s investigation was undertaken to obtain 
evidence for a coroner’s inquest scheduled for the 
following day —a proceeding held by this court to be 
quasi-judicial in nature. We stated that “investigation to 
secure the information necessary to the prosecutor’s 
decision to initiate criminal proceedings is within the 
quasi-judicial aspect of the prosecutor’s job and 
therefore is absolutely immune from civil suit for 
damages.” Id.

A  31



Cahoon’s participation in the electronic 
surveillance of Lewellen falls squarely within the scope 
of this holding in Williams. Mrs. Patterson, a prosecution 
witness in a trial then being conducted by Cahoon, had 
alleged that various parties were attempting to bribe her; 
the electronic surveillance was conducted to determine 
whether criminal charges should be lodged against those 
parties. Moreover, Cahoon’s actions were undertaken to 
protect Mrs. Patterson, a key witness at Rev. Banks’s 
rape trial, and to insure her attendance and testimony at 
trial. These actions are also within the scope of a 
prosecutor’s duties and thus can not give rise to liability 
for damages. See Myers v. Morris, 810 F.2d 1437, 1447 
(8th Cir.), cert, denied, 102 S. Ct. 97 (1987); cf. Imbler, 
424 U.S. at 430 n.32 (efforts to control the presentation 
of witnesses’ testimony fall within immunized 
prosecutorial functions). We hold, therefore, that 
prosecutors Raff and Cahoon are absolutely immune 
from liability for any damages caused by their 
participation in the investigation of Lewellen.13

13 Lewellen also suggests in his brief that Raff and Cahoon are not entitled to 
immunity because they somehow participated in the alleged “editing” of tape E-l. 
He urges us to “ infer” that Raff and Cahoon ordered or consented to this alleged 
editing, which purportedly resulted in the destruction of exculpatory evidence and 
the creation of incriminating evidence. Lewellen did not raise this allegation in his 
complaint, nor was it discussed at all in the parties’ briefs to the district court on 
the immunity issue. The district court therefore has never ruled on this claim and it 
would be inappropriate for us to do so. The proper course would have been for 
Lewellen to amend his complaint; having failed to do so, he may not on appeal raise 
new claims. See, e.g.. Spear v. Dayton's. 771 F.2d 1140, 1144 (8th Cir. 1985).

Lewellen also appeals from the district court’s order barring discovery against Raff 
and Cahoon except as to one limited issue. We affirm this order because we have

A  32



C. Immunity of Police Officers

Sgt. Williams and Sheriff May filed motions to 
dismiss or for summary judgment on the basis of 
qualified immunity. The district court in large part 
denied these motions, stating that “[t]he Court cannot 
find that [Williams and May] did not violate clearly 
established statutory and constitutional rights which a 
reasonable person would have known.” Williams and 
May appeal from the denial of their motions; we reverse. 
We discuss their motions as they relate to each of the 
counts the district court did not otherwise dismiss.14

In Count One of his complaint, Lewellen purports 
to state causes of action under 42 U.S.C. §§1981 and 
1983, claiming that Williams and May violated his rights 
under the first, fourth, fifth, thirteenth, and fourteenth 
amendments by: (1) conducting an illegal search and 
seizure; (2) unlawfully arresting and prosecuting him; (3) 
violating his freedom to engage in his profession without

determined that Raff and Cahoon are entitled to absolute immunity and because 
Lewellen has made no showing that he was prejudiced by the order. See, e.g.. 
Voegeli v. Lewis. 568 F.2d 89, 96 (8th Cir. 1977) (district court’s discovery rulings 
not reversible unless shown to be a gross abuse of discretion resulting in 
fundamental unfairness).
14 The district court granted Williams's and May’s motions to dismiss Lewellen’s 
punitive damages and state tort claims, and claims under the federal communica­
tions interception statute. Although the court went on to say that it was not 
dismissing the claims against Williams and May under Count 7, the only claims 
contained in Count 7 were brought under the federal communications interception 
statute. We therefore dismiss Count 7 as it applies to Williams and May.

A  33



discrimination due to his race; and (4) violating his rights 
of association and to be a candidate for public office.

The first claim, for illegal search and seizure, based 
on May’s and Williams’s roles in the taping, must be 
dismissed. Lewellen claims that the electronic 
surveillance activities violated federal and state 
communications interception statutes. Yet the federal 
statute, 18 U.S.C. §§ 2510-2520 (as amended through 
Supp. 1986), was not violated because Mrs. Patterson, 
one of the parties to the conversations issue, had 
consented to the interception.15

Lewellen argues further that the federal statute 
incorporates stricter provisions of state law, and that an 
Arkansas statute then in effect required judicial 
authorization prior to interception of communications. 
1985 Ark. Acts 666, 707 (repealed 1986) (formerly 
codified at Ark. Stat. Ann. §§ 41-4501-4509 (Supp. 
1985)). All parties concede that the tape recordings at 
issue did not have prior judicial authorization. The 
Arkansas statute was repealed and voided ab initio, 
however, one year after it was passed, see 1986 Ark. Acts

15 18 U.S.C. § 2511 (2) (c) provides:

It shall not be unlawful under this chapter for a person acting under 
color of law to intercept a wire, oral, or electronic communication, 
where such person is a parry to the communication or one of the parties 
to the communication has given prior consent to such interception.

A  34



1, because the General Assembly determined that there 
was too much confusion over the meaning of the statute. 
Id. at §2. In such a case, it cannot be said that the statute 
represented “clearly established” law. Finally, “Fourth 
Amendment rights are not violated when * * * 
conversations with a government informant are 
electronically monitored by a government agent with the 
consent of the informant.” United States v. McMillan, 508 
F.2d 101, 104 (8th Cir. 1974), cert, denied, 421 U.S. 916 
(1975). For these reasons, Lewcllen’s claim against May 
and Williams for illegal electronic surveillance must be 
dismissed.

The second claim, for unlawful arrest and 
prosecution, must be dismissed as to Williams because 
Lewellen did not allege or produce any facts to indicate 
that Williams was involved in these aspects of the 
investigation of Lewellen. In his brief, Lewellen argues 
that Williams created false evidence and destroyed 
exculpatory evidence “in order to maliciously prosecute 
Lewellen.” Lewellen did not raise these allegations in his 
complaint, nor did he ever respond to Williams’s motion 
for summary judgment, so this is the first time a court 
has been asked to rule on these claims. Likewise, 
Lewellen raises these allegations with respect to Sheriff 
May for the first time on appeal. In these circumstances, 
we decline to pass on claims that are raised for the first 
time on appeal, and Lewellen’s claims for unlawful arrest 
and prosecution must fail.

A  35



Finally, Lewellen’s third and fourth claims under 
this count must also be dismissed. Lewellen did not 
demonstrate any genuine issues of material fact to 
support his allegations that Williams and May deprived 
him of his freedom to engage in a profession and 
violated his right to be a candidate for political office; he 
does not even address these issues in his briefs on 
appeal. Lewellen asserts in his complaint that May “tried 
to convince [Lewellen] that he should not run for the 
State Legislature.” Assuming this to be true, it does not 
rise to the level of a violation of Lewellen’s first 
amendment rights. Count 1 must therefore be dismissed 
in its entirety as it applies to Williams and May.

Count Two of Lewellen’s complaint alleged that 
Williams and May violated 42 U.S. §§1983 and 1985 by 
conspiring to entrap him in frivolous criminal charges 
and to cover up that conspiracy, for the purpose of 
depriving him equal protection due to his race. Without 
detailing all of the arguments made by the parties with 
respect to this issue, we find that Lewellen failed to sat­
isfy his burden, as the nonmoving party, to survive a 
motion for summary judgment. Because Lewellen’s 
section 1985 claim must be dismissed, his section 1986 
claim against May, contained in Count 3, must likewise 
be dismissed. See Kaylor v. Fields, 661 F.2d 1177, 1184 
(8th Cir. 1981) (cause of action under §1986 is 
dependent on valid claim under §1985).

A  36



The final claim that survived Williams’s and May’s 
motions was that Williams and May conspired with other 
defendants to deprive Lewellen of equal protection and 
hinder him from obtaining a fair trial, in violation of 42 
U.S.C. §1985(2). Underlying this claim is Lewellen’s 
assertion that Williams and May threatened Joe 
Patterson, a possible defense witness in Lewellen’s state 
criminal case. According to Lewellen, Williams and May 
threatened Joe Patterson with charges of bribery and 
perjury in an attempt to intimidate and coerce him into 
making false incriminating statements against Lewellen.16

This claim must fail, however, because Lewellen 
has not alleged or produced any facts to demonstrate 
that such witness intimidation, if it occurred, was 
prompted by a racial or class-based invidiously

These allegations do not state a claim under the first clause of § 1985 (2), which 
makes it unlawful for “ two or more persons in any State or Territory [to] conspire 
to deter, by force, intimidation, or threat, any party or witness in any court of the 
United States from attending such court, or from testifying to any matter pending 
therein, freely, fully, and truthfully." See Kush v. Rutledge. 460 U.S. 719, 721 n.l 
(1983) (first clause of § 1985 (2) relates to witness intimidation in connection with 
federal proceedings). They do, however, state a claim under the second clause of 
§ 1985 (2), which makes it unlawful for “ two or more persons [to] conspire for the 
purpose of impeding, hindering, obstructing, or defeating, in any manner, the due 
course of justice in any State or Territory, with the intent to deny to any citizen the 
equal protection of the laws * * See Id. (second clause of § 1985 (2) applies to 
witness intimidation in state court proceedings).

In Deretich v. Office of Administrative Hearings. 798 F.2d 1147, 1153 (8th Cir. 
1986), this court stated that “section 1985 (2) does not provide a cause of action for 
intimidation of witnesses in state administrative and court proceedings.”  That 
statement must be understood in the context of that case, however, no racial or 
class-based discriminatory animus had been shown there.

A  37



discriminatory animus. See Kush v. Rutledge, 460 U.S. 
719. 725 (1983). We note, moreover, that Lewellcn has 
failed to argue in support of or even mention this claim 
in his briefs.

III. Conclusion

We affirm the district court’s grant of a preliminary 
injunction; a hearing on Lewellen’s claim for a 
permanent injunction should be held promptly. We hold 
that prosecutors Raff and Cahoon are absolutely 
immune from liability for damages, and affirm the 
protective order limiting discovery against them. Finally, 
we reverse the denials of Williams’s and May’s motions 
for summary judgment, finding that they are entitled to 
qualified immunity on all counts.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, 
EIGHTH CIRCUIT.

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IN THE UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF ARKANSAS 

EASTERN DIVISION

ROY C. LEWELLEN, JR., ET AL PLAINTIFFS

v. No. H-C-86-34

GENE RAFF, Individually and In His 
Capacity as Prosecuting Attorney for 
The First Judicial District of Arkansas,
ET AL DEFENDANTS

MEMORANDUM OPINION AND ORDER 
GRANTING PRELIMINARY INJUNCTION

Roy C. Lewellen, Jr., Esq. has petitioned this Court 
for a preliminary injunction pursuant to Rule 65(a) of 
the Federal Rules of Civil Procedure, enjoining Circuit 
Judge Henry Wilkinson, Prosecuting Attorney Gene Raff 
and Deputy Prosecuting Attorney David Cahoon of the 
First Judicial District, Lee County, Arkansas, from 
conducting a trial of the criminal action styled State of 
Arkansas v. Roy C. Lewellen, No. 85-50, currently 
pending in the Lee County Circuit Court. Lewellen is 
charged with the criminal offense of “Attempted Witness 
Bribery,” a Class C felony which imposes a sanction of 
not less than three years nor more than ten years in the

A  39



Arkansas Department of Correction and a fine not 
exceeding $10,000.00, and alternatively, Criminal 
Conspiracy, a Class D felony, which imposes a sanction 
not to exceed six years in the Arkansas Department of 
Correction, and a fine not exceeding $ 10,000.00.1

Lewellen instituted this action on April 28, 1986, 
seeking injunctive and declaratory relief and damages 
against Raff and Cahoon, as well as others.1 2 At the time, 
Lewellen’s criminal case had been continued for trial on 
February 7, 1986, to May 19, 1986.

On May 14, 1986, Lewellen applied to this Court 
for a temporary restraining order to enjoin Raff and 
Cahoon from proceeding to trial on May 19, 1986, in the 
state action following the denial of Lewellen’s request 
for a continuance by the state trial judge.

On May 14, 1986, this Court conducted a hearing 
on Lewellen’s request for a temporary restraining order, 
and at the conclusion of the hearing, directed counsel to 
submit memoranda briefs on May 15, 1986. However,

1 On November 14, 1986, this Court entered an order temporarily restraining a 
scheduled trial of the case on November 17, 1986. A hearing on Lewellen’s request 
for a preliminary injunction commenced on November 24, 1986. The temporary 
restraining order was extended an additional ten days by this Court sua sponte on 
November 25,1986.
2

Judge Henry Wilkinson was made a party defendant to these proceedings 
pursuant to Lewellcn’s amended complaint on September 23, 1986. Only 
declaratory judgment and injunctive relief are sought against Judge Wilkinson.

A  40



the Court was advised on May 15, 198c>, that the parties 
and counsel had agreed that the state criminal trial 
would be continued pending a hearing on the merits of 
this action by this Court. The state trial judge, by order 
dated May 15, 1986, continued the state criminal trial for 
that term. Accordingly, this Court entered an order on 
May 16, 1986, permitting LeweHen to withdraw, without 
prejudice, his request for a temporary restraining order.

This case was scheduled for trial on the merits for 
September 8, 1986, but was continued at the request of 
Lewellen because his counsel had been directed to 
appear in the Court of Appeals for the Eighth Circuit in 
an unrelated proceeding before that Court.

On October 10, 1986, during pre-trial docket call, 
Judge Wilkinson, at the request of Cahoon, but over the 
objections of Lewellen’s state court counsel, scheduled 
Lewellen’s criminal action for trial on November 17, 
1986.3

During the pre-trial docket call by Judge Wilkinson, L. Ashley Higgins, one of 
Lewellen’s attorneys in the state criminal case, requested Judge Wilkinson to 
recuse in that action since Judge Wilkinson had been made a party defendant in 
this proceeding. While the record does not reflect what action, if any, was taken by 
Judge Wilkinson on counsel’s recusal request, it is clear that Judge Wilkinson 
stated “ [t]hc court is going to set the matter for trial” because the federal district 
court action had not been concluded.

This Court is persuaded and so finds that ail counsel concerned in both the state 
criminal proceeding and this action agreed that Lewellcn’s state criminal case 
v.ould not proceed to trial until after this Court had concluded a trial on the merits 
in this proceeding. It is plain and beyond debate that a litigant cannot complain 
subsequently about a procedure to whictrhc has consented.

A  41



On October 27, 1986, Lewellen filed his supplemen­
tal motion for a temporary restraining order following 
his counsel’s inability to get the November 17th trial 
setting continued.

Lewellen, a black attorney residing and engaged in 
general practice of law in Eastern Arkansas, has alleged, 
among other things, the following in support of his 
request for injunctive relief:

1. That the criminal bribery charges, instituted 
against him by way of an information by Raff 
and Cahoon, is a bad faith prosecution designed 
and calculated to harass and retaliate against 
him because “he is a black attorney who 
vigorously defended his client [in a state 
criminal proceeding in Lee County Circuit 
Court wherein Raff and Cahoon are serving as 
prosecutors and Lewellen as defense counsel], 
that he has a growing legal practice, and is a 
candidate for political office running against a 
political ally of defendant Sheriff May.”

2. That Raff and Cahoon, as prosecutors, have a 
history of treating black attorneys differently 
than white attorneys and have pursued a course 
of retaliation in the pending state criminal 
proceeding against Lewellen and “other cases.”

A  42



3. “ . . . Defendants . . . acted willfully, know­
ingly, purposely, and in bad faith with the speci­
fic intent to deprive the plaintiff. . .  of his right 
to be free from illegal search and seizure; free 
from unlawful arrest and prosecution without 
evidence in support thereof; freedom to engage 
in his chosen line of employment and 
profession without discrimination on the basis 
of his race; and, his right to freedom of 
association and political affiliation and 
candidacy for public [office] . . . ” (Paragraph 88 
of amended complaint).

4. That Raff and Cahoon engaged in electronic 
surveillance without legal justification and 
judicial warrant in order to obtain evidence to 
establish probable cause for the state criminal 
proceeding.

5. That Raff and Cahoon caused the publication 
of defamatory material before the state criminal 
charges were filed and in the midst of an 
ongoing investigation by the defendants of the 
purported charges; that Raff and Cahoon are 
currently pursuing a course of retaliation 
against Lewellen.

After scrutinizing the circumstances surrounding 
the institution of the criminal charges against Lewellen 
bv Raff and Cahoon, from the evidence received during* t

A  43



a hearing involving approximately six (6) days, this Court 
makes the following additional findings:

Lewellen claims and asserts that the criminal 
charges instituted against him were instituted in bad faith 
in order to harass, intimidate and retaliate against him 
and without an expectation of a valid conviction of such 
charges because of his race and Lewellen’s refusal to 
engage in plea bargaining with regard to a client charged 
with the crime of rape and demanded that his client be 
afforded a speedy jury trial to the end that his client’s 
guilt or innocence be determined without delay; because 
of Lewellen’s decision, against the advice of Sheriff May, 
to run as a candidate for a state senatorial position 
against an incumbent who was a friend and ally of the 
County Sheriff; and because Lewellen was critical of and 
resisted the disparate treatment accorded black 
attorneys by public officials in the administration of 
justice in Lee County, Arkansas, as contrasted with the 
recognition afforded white attorneys.

An example articulated by Lewellen of the alleged 
disparate treatment, in the administration of Justice in 
Lee County, is the evidence that the trial court denied 
virtually every pretrial discovery motion filed by 
Lewellen seeking materials from the prosecuting 
attorney to the end that Lewellen might adequately 
prepare for the defense of his client in the pending rape 
trial. Sam Blount testified that Sheriff May told him that 
the state trial judge had denied all of Lewellen’s pretrial

A  44



motions in the rape case because the trial judge was 
displeased with Lewellen’s demeanor and conduct in his 
court.4 Lewellen also testified that Sheriff May advised 
him that he needed to take steps to apologize to the trial 
judge and Raff if he wanted, in effect, to get back in their 
good graces and minimize the consequences that could 
flow from Lewellen’s criminal case.

The Court notes that there is a strong likelihood 
that Lewellen will establish that the criminal charges 
lodged against him were attended with undue publicity 
resulting in impairment of first amendment rights.

The Court is of the opinion that the purported 
conduct retaliated against or sought to be impeded 
involve federal rights secured under the Federal 
Constitution;5 Lewellen has demonstrated that

Lewellen testified that during jury selection in the rape case he was defending, he 
objected to the procedure being employed by the trial judge and received a strong 
admonishment from the trial judge in open court; that later, he saw the trial judge 
and Raff eating lunch together in the Lee County jail and advised the trial judge 
that he, Lewellen, wanted to renew his objections to the jury selection procedure 
when the trial resumed. Again the trial judge harshly rebuked Lewellen for 
questioning the judge’s integrity. Lewellen states that this is the conduct that 
displeased Raff and the judge.

3 The Court notes that the scheduling of Lewellen's criminal trial on October 10, 
1986, for November 17, 1986, took place twenty-four (24) days prior to the General 
Election conducted on November 4, 1986, in which Lewellen was running as an 
Independent against a Democratic incumbent, when Lewellen was defeated. This 
Court is of the opinion that there is a strong likelihood that Lewellen can establish 
that his opponent in the senatorial race made reference to this scheduling during 
the campaign, and that scheduling was calculated to impede and impair his First 
Amendment rights. This, of course, can be determined during a hearing on the 
merits in this proceeding.

A  45



the criminal prosecution initiated by Raff and Cahoon 
against Lewellen was brought in bad faith for the 
purpose of retaliating for the exercise of his 
constitutionally protected rights. This Court is of the 
opinion that the criminal charges instituted against 
Lewellen would not have been filed absent the desire to 
retaliate against Lewellen for exercising his federally 
protected rights. Therefore, this Court is persuaded that 
Lewellen has established that unless the requested relief 
is granted he will suffer great and immediate irreparable 
harm. See, Munson v. Janklow, 563 F.2d 933 (8th Cir. 
1977). This Court is further persuaded that the injury 
Lewellen faces is something more than the incidental 
inconvenience and injury that every defendant confronts 
in a criminal prosecution brought lawfully and in good 
faith. Here, Lewellen has demonstrated that the state 
prosecution against him was brought in bad faith for the 
purpose of retaliating and harassing him for the exercise 
of constitutionally protected rights.

Lewellen has demonstrated that Raff and Cahoon 
had no expectation of a valid conviction when they 
lodged the charges against Lewellen, and thus, there is a 
substantial likelihood that Lewellen will prevail on the 
merits.

The Court notes that the evidence reflects that 
Raff, after hearing the alleged tape recording of 
statements made by Lewellen, Defendants’ Exhibit E-2 
which is central to the criminal charges lodged against

A  46



cl<,

(Pori\^)\o(\j CŴ<L



Lewellen, stated, in essence, that the tape was 
insufficient to support a charge of witness bribery under 
Arkansas Law and directed Sheriff May and State Police 
Officer Williams to engage in further electronic 
surveillance which was immediately done.6 But, in the 
opinion of this Court, the supplemental taping when 
considered together with Defendants’ Exhibit E-2 does 
not alter the Court’s belief that there is a substantial 
likelihood that Lewellen will prevail in establishing that 
Raff had no reasonable expectation of getting a 
conviction of Lewellen. The poor quality and the 
unexplained gaps in the tape as well as the testimony of 
Mr. Patterson, one of the alleged participants in the 
taped conversations, that there are certain deletions and 
alterations in the tape persuade this Court that there is a 
strong likelihood that Lewellen will be successful in 
demonstrating the lack of any probative value flowing 
from Defendants’ Exhibit E-2 and the supplemental 
taping, or demonstrate that the prejudicial effects 
flowing from the use of the tapes outweigh any probative 
value.

In addition, there is a strong likelihood that 
Lewellen can demonstrate that it is a fairly common

The Court notes that at the time the electronic surveillance was conducted, 
which has been conceded by all was done without a judicial warrant, Act 707 (Ark. 
Stat. Ann. 41-4501, et seo.l. passed in 1985 by the Arkansas General Assembly, 
required court approval prior to any interception of wire or oral communications. 
Whether this requirement is relevant or material in any way to Lewellen's request 
for injunctive relief can be determined at the time the Court conducts the final 
hearing to determine whether Lewellen is entitled to a permanent injunction.

A  47



practice in Arkansas for lawyers to serve as 
intermediaries in seeking to have criminal charges 
pending against a client “dropped” or “nol prosed” 
which Lewellen contends was the only role that he 
played resulting in the criminal charges lodged against 
him.7

In balancing the equities between Lewellen and 
defendants in considering whether a preliminary 
injunction should or should not be granted, the Court is 
persuaded that the harm likely to be visited upon 
Lewellen, if the requested relief is not granted, 
outweighs any injury to defendants if the state criminal 
proceeding is enjoined pending a final determination of 
this proceeding on the merits.

Lewellen’s complaint and the evidence describe an 
environment in which Lewellen will not be assured 
adequate vindication of due process and equal 
protection in the Lee County Circuit Court for it is 
asserted that the judiciary in Lee County is flawed and is 
not an independent branch of the county government;8

Ollie Neal, personal attorney for Mrs. Patterson, the State’s key witness in 
Lewellen’s criminal case, testified that Lewellen “never made me any kind of offer, 
any kind of deal,”  but Lewellen had stated that Lewellen had heard that the 
prosecuting witness, Mrs. Patterson, wanted to have the charges dismissed.
g

Ollie Neal, an attorney who has practiced law in Lee County for approximately 
seven years, testified ” [i]f Gene [Raff] is not happy with you, you are not going to 
get a continuance because of Raff’s influence over the court. Gene uses that to 
bring you in line. It is clear to me that Judge Yates is controlled by Mr. Raff and 
that Judge Wilkinson is most responsive.” Neal testified further that on occasions 
he has observed “Raff and Judge Yates going to court in the same car;” that Raff. 
Cahoon and Circuit Judges Yates and Wilkinson treat black lawyers differently 
than white lawyers.

A  48



and that the prosecutorial power is so strong that its 
abuse will have such a detrimental effect upon Lewellen 
before a state proceeding terminates.9 This Court is 
persuaded that there is a strong likelihood that Lewellen 
will be successful in establishing this claim in a hearing 
on the merits.

The Court is further persuaded that the public’s 
interest in the maintenance and enhancement of a 
criminal justice system free of bad faith and harassment 
would, indeed, be implemented and furthered.

Sheriff May testified that he can recall that the Lee 
County Grand Jury has been summoned only once to 
consider a criminal matter under investigation during his 
twelve years as sheriff of Lee County, and that this was 
the time that he was being investigated for gambling, 
while serving as sheriff, and the Grand Jury exonerated 
him by a vote of 14 to 2.

Lewellen testified that Sheriff May advised him 
that he, Lewellen, should go to Raff and apologize and

As an illustration of the power possessed, in addition to his duties as Prosecuting 
Attorney for the First Judicial District, Mr. Raff is a member of the Arkansas State 
Police Commission which possesses the responsibility to approve or disapprove 
promotion or demotion of state police personnel, and review each application for 
employment presented to the commission by the Director for certification to the 
eligibility list . . .  to hear appeals and approve, or disapprove, any disciplinary action 
taken against an employee by the Director that results in transfer or loss of rank, 
pay or seniority. [Ark. Stat. Ann. 42-403.2 (Repl. 1977)].

TJicse two public positions are held simultaneously by Mr. Raff as a consequence 
of a purported Legislative Act passed by the Arkansas General Assembly.

A  49



that he could avoid some of the difficulties confronting 
him. Lewellen further testified that Sheriff May said that 
in 1972, when May was under investigation by a Lee 
County Grand Jury, May went to Raff and apologized to 
Raff and “Gene fixed the Grand Jury.”

Indeed, this Court is of the view that no benefit will 
be derived by giving deference to the state proceeding in 
which the trial judge, moreover, has previously stayed 
the criminal proceedings pending an adjudication of the 
merits in this proceeding. Moreover, this Court is 
persuaded that the State of Arkansas “does not have any 
legitimate interest in pursuing a bad faith prosecution 
brought to retaliate for or to deter the exercise of 
constitutionally protected rights.” Wilson v. Thompson, 
593 F.2d 1383 (5th Cir. 1979). In this regard, the Court in 
Wilson, supra, observed:

State officials disposed to suppress speech 
could easily do so by bringing oppressive 
criminal actions pursuant to valid statutes 
rather than by enacting invalid statutes or using 
other parts of the state legal machinery, and 
§1983 would give no effective relief unless they 
happen to warn their victims in advance.. . .

When a significant chilling effect on free speech 
is created by a bad faith prosecution, the 
prosecution will thus as a matter of law cause 
irreparable injury' regardless of its outcome, and

A 50



the federal courts cannot abstain from issuing 
an injunction.

Therefore, Lewellen’s request for a preliminary 
injunction enjoining defendants from conducting a trial 
of his criminal action currently pending in the Circuit 
Court of Lee County, Arkansas, should be granted.

IT IS THEREFORE, ORDERED:
That Gene Raff, Esq., David Cahoon, Esq. and Cir­

cuit Judge Henry Wilkinson, their officers, agents, serv­
ants, employees, and attorneys, and all persons in active 
concert or participation with them, are hereby enjoined 
from proceeding with the trial of plaintiff Roy C. 
Lewellen, Jr. in criminal case No. 85-50, currently 
pending in the Lee County Circuit Court of the First 
Judicial District of Arkansas pending adjudication of this 
action on the merits.

IT IS FURTHER ORDERED that plaintiff Roy C. 
Lewellen, Jr. post with the Clerk of the Court a bond in 
the sum of $1,000.00 for payment of such costs and 
damages as may be suffered or incurred by defendants if 
it be determined that the relief afforded herein is 
wrongful.

IT IS SO ORDERED this 8th day of December,
1986.

G eorge H oward, Jr.
United States District Judge

A  51



UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

No. 87-1069

Roy C. Lewellen, Jr.,
Appellee,

v.

Gene Raff, individually and in 
his official capacity as 
Prosecuting Attorney for the 
First Judicial District of 
Arkansas; David Cahoon, 
individually and in his 
official capacity as Deputy 
Prosecuting Attorney for Lee 
County, Arkansas; Henry 
Wilkinson, individually and in 
his official capacity as 
Circuit Court Judge for the 
First Judicial District of 
Arkansas,

Appellants.

Lafayette Patterson; Jeanne 
Kennedy; Doug Williams; Lee 
County, Arkansas; Robert May, 
Jr., individually and in his



official capacity as Sheriff 
of Lee County.

Lafayette Patterson

v.

Robert Banks; Margie Banks; 
Reverend Almore Banks.

No. 87-1100

Roy C. Lewellen, Jr.,
Appellee,

v.

Gene Raff, individually and in 
his official capacity as 
Prosecuting Attorney for the 
First Judicial District of 
Arkansas; David Cahoon, 
individually and in his 
official capacity as Deputy 
Prosecuting Attorney for 
Lee County, Arkansas; 
Lafayette Patterson; Jeanne 
Kennedy;

Doug Williams,

A  53



Appellant.

Lee County, Arkansas;
Robert May, Jr., individually 
and in his official capacity 
as Sheriff of Lee County;
Henry Wilkinson, individually 
and in his official capacity 
as Circuit Court Judge for the 
First Judicial District of 
Arkansas.

Lafayette Patterson

v.

Robert Banks; Margie Banks; 
Reverend Almore Banks.

No. 87-1101

Roy C. Lewellen, Jr.,
Appellee,

v.

Gene Raff, individually and 
in his official capacity as 
Prosecuting Attorney for the

A  54



Eastern Judicial District of 
Arkansas; David Cahoon, 
individually and in his 
official capacity as Deputy 
Prosecuting Attorney for 
Lee County, Arkansas; 
Lafayette Patterson; Jeanne 
Kennedy; Doug Williams; 
Lee County, Arkansas;

Robert May, Jr., individually 
and in his official capacity 
as Sheriff of Lee County,

Appellant.

Henry Wilkinson, individually 
and in his official capacity 
as Circuit Judge for the 
First Judicial District of 
Arkansas.

Lafayette Patterson

v.

Robert Banks; Margie Banks; 
Reverend Almore Banks.

No. 87-1103

A  55



Roy C. Lewellen, Jr.,

Appellant,

v.

Gene Raff, individually and 
in his official capacity as 
Prosecuting Attorney for the 
First Judicial District of 
Arkansas; David Cahoon, 
individually and in his 
capacity as Deputy 
Prosecuting Attorney for 
Lee County, Arkansas,

Appellees.

Lafayette Patterson; Jeanne 
Kennedy; Doug Williams; Lee 
County, Arkansas; Robert 
May, Jr., individually and 
in his official capacity as 
Sheriff of Lee County;
Henry Wilkinson, individually 
and in his official capacity 
as Circuit Court Judge for the 
First Judicial District of 
Arkansas.

A  56



Lafayette Patterson

v.

Robert Banks; Margie Banks;
Reverend Almore Banks.

On Petition for Rehearing

Filed: July 14, 1988

Before LAY, Chief Judge, ARNOLD and BOWMAN, 
Circuit Judges.

PER CURIAM.

This court affirmed the district court’s grant of a 
preliminary injunction enjoining state officers (the state) 
from proceeding with a criminal trial of Roy Lewellen. 
Lewellen v. Raff, 843 F.2d 1103 (8th Cir. 1988). The state 
now petitions for rehearing, arguing that the court erred 
in: (1) not considering whether the state had a 
reasonable expectation of obtaining a conviction of 
Lewellen; and (2) holding that the district court’s finding 
of retaliatory prosecution was not clearly erroneous. We 
reject the latter contention for the reasons discussed in 
our earlier opinion. The state’s first contention, however, 
merits discussion.

A  57



In upholding the district court’s decision not to 
abstain from exercising jurisdiction under Younger v. Har­
ris, 401 U.S. 37 (1971), this court refrained from discuss­
ing whether the prosecutors had a reasonable 
expectation of obtaining a conviction of Lewellen. 
Lewellen, 843 F.2d at 1112. We relied in part on 
Fitzgerald v. Peek, 636 F.2d 943 (5th Cir.), cert, denied, 
452 U.S. 916 (1981), which stated that a finding of 
retaliatory prosecution such as the one made by the 
district court here “will justify an injunction regardless of 
whether valid convictions conceivably could be 
obtained.” Id. at 945.

The state argues that our holding is inconsistent 
with existing case law and misconstrues the reasoning of 
the Fifth Circuit in Fitzgerald, Wilson v. Thompson, 593 
F.2d 1375 (5th Cir. 1979), and Smith v. Hightower, 693 
F.2d 359 (5th Cir. 1982). After careful reconsideration of 
the state’s arguments and the relevant cases, we are 
convinced that this court’s opinion is appropriate and 
consistent with applicable precedent.

The state contends that this court’s reliance on 
Fitzgerald is misplaced; the gist of the state’s argument is 
that the Fifth Circuit sub silentio overruled Fitzgerald in 
Smith V. Hightower.1 We do not believe that Hightower

A  58



was intended to have this effect and, moreover, arc 
satisfied that Wilson, Fitzgerald, and Hightower are 
entirely consistent with this court’s opinion.

The specific holding of Hightower was that it is 
erroneous for a district court to refuse to consider evi­
dence as to whether the prosecutors entertained a 
reasonable expectation of obtaining a conviction. 
Hightower, 693 F.2d at 369. The district court in 
Hightower completely “disregarded” evidence of the 
possibly criminal wrongdoing of the petitioner, reasoning 
that the only relevant evidence was the prosecutor’s 
motives in bringing the charges. Id. at 369 n.24. In 
contrast, the district court in the present case reviewed 
the evidence of Lewellen’s allegedly criminal activities at 
length and specifically concluded that there was a 
substantial likelihood that Lewellen would establish that 
the prosecutor “had no reasonable expectation of getting 
a conviction of Lewellen.” Lewellen v. Raff, 649 F. Supp. 
1229, 1233, (E.D. Ark. 1986). Thus, the Hightower court’s 
direction that “the strength of the evidence and 
seriousness of the charges should be considered in 
determining if retaliation or bad faith exists,” 693 F.2d at 
369, was fully satisfied by the district court here.

To the extent the state argues that the court's reliance on Fitzgerald is misplaced 
because of the Fifth Circuit's statements in Wilson v. Thompson, the stale 
overlooks that Fitzgerald was decided after Wilson.

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The most significant clarification Hightower con­
tributed to the Fifth Circuit’s standards governing the 
bad faith exception to the Younger doctrine was its 
distinction between the quantum of proof necessary to 
obtain a preliminary injunction as opposed to a 
permanent injunction. It is this distinction that 
harmonizes Wilson, Fitzgerald, Hightower, and this court’s 
opinion.

Under the Fifth Circuit’s analysis, which we have 
followed, to obtain a preliminary injunction in this 
context the plaintiff need show only that the prosecution 
was motivated “in part” by a purpose to retaliate against 
constitutionally protected conduct. To obtain a 
permanent injunction, however, the plaintiff must show 
that “but for” the desire to retaliate the charges would 
not have been brought. See Hightower, 693 F.2d at 367 & 
n.19. Then, “Wilson makes it clear that the prospects of 
conviction and the significance of the alleged criminal 
activity is [sic] relevant to the determination whether the 
prosecution would have been brought absent the 
retaliatory motive.” Id. at 369 n.25 (emphasis added).

In ruling on the petition, the district court con­
cluded that retaliatory motives were responsible for the 
prosecution of Lewellen. This finding is sufficient to 
sustain the issuance of a preliminary injunction. At this 
state, however, Lewellen did not have to prove the “but 
for” nature of the retaliatory motives. Thus, this court’s 
review of the findings supporting the conclusion that the

A  60



prosecution was retaliatory is sufficient, because this 
court need not decide at this stage whether the 
prosecution would have been brought “but for” the 
retaliatory motives.

Assuming that the district court conducts a further 
evidentiary hearing or simply relies on the existing 
record, we emphasize that the grant of a permanent 
injunction, as we have discussed, involves not only 
different findings, but requires a more exacting appellate 
review. See, e.g., Hiland Potato Chip Co. v. Culbro Corp., 
671 F.2d 1190, 1192 (8th Cir. 1982) (“There is a marked 
difference between the trial judge’s discretionary ruling 
weighing the factors relating to the issuance of a 
temporary injunction and the findings of fact and legal 
conclusions comprising a final judgment.”)2 We point 
out to the district court that mere discussion of the 
plaintiffs allegations does not constitute findings of fact;

~ See also International Union. UAW v. Mack Trucks. Inc.. 820 F.2d 91, 94-95 (3d 
Cir. 1987) (“ We more closely review decisions on requests for permanent rather 
than for preliminary relief * * * since permanent injunction cases present more 
fully developed records.” ; Sports Form, Inc, v. United Press lnt‘1, Inc., 686 F.2d 
/50, 753 (9th Cir. 1982) (“ Our review of the district court’s findings, pursuant to its 
action on a motion for preliminary judgment is, of course, restricted to the limited 
record available to the district court when it granted or denied the motion. The 
district court’s findings supporting its order granting or denying a permanent 
injunction may differ after presentation of all the evidence and so may our 
determination as to whether its subsequent findings are clearly erroneous.” ); 
Henry v. First Nat’l Bank, 595 F.2d 291, 302 (5th Cir. 1979) (“The standard for 
appellate review of a preliminary injunction is simply whether the district court 
abused its discretion in issuing the injunction; the reviewing court does not engaee 
in the same plenary review that would be indicated on appeal of permanent 
relief."!, cert, denied. 444 U.S. 1074 119801.

A  61



more complete and definitive findings and legal 
conclusions are needed for this court to provide proper 
review of a permanent injunction.

Review of a grant of a preliminary injunction rests 
on an abuse of discretion standard. We have found no 
abuse here. The panel therefore adheres to its original 
opinion and denies the petition for rehearing directed to 
the panel. The state may renew its suggestion for 
rehearing en banc and may amend its petition to respond 
to this opinion..

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, 
EIGHTH CIRCUIT.

A 62



UNITED STATES COUR T OF APPEALS 
FOR THE EIGHTH CIRCUIT

Nos. 87-1069/1100/1101/1103EA

Roy C. Lewellen, Jr.,
Appellee,

vs.

Gene Raff, etc., et al,
Appellants.

Appeals from the United States 
District Court for the 

Eastern District of Arkansas.

Appellants’ petition for rehearing en banc has been 
considered by the Court and is denied.

Petition for rehearing by the panel is also denied.

September 28, 1988

Order entered at the Direction of the Court:

R obert D. St. V rain

Clerk, U.S. Court of Appeals, Eighth Circuit.

A  63



SUPREME COURT OF THE UNITED STATES

No. A -283

Gene Raff, etc., et al.,

v.
Roy C. Lewellen, Jr., etc., et al.

ORDER

Petitioners

UPON CONSIDERATION of the application of 
counsel for the petitioners,

IT IS ORDERED that the time for filing a petition 
for a writ of certiorari in the above-entitled case, be and 
the same is hereby, extended to and including 11 
November, 1988.

s/H arryA. B lackmun 
Associate Justice of the 
Supreme Court of the 
United States

Dated this 12th day of October, 1988.

A  64

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