Raff v. Lewellen Jr. Petition for Writ of Certiorari
Public Court Documents
October 3, 1988
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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.
A 38
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.
A 59
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.
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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