Gary Thomas Rowe v. Carl Griffin, Etc., Hon. Jesse O. Bryan

THORNBERRY, Circuit Judge,

specially concurring:

Despite the excellence of Judge Fay’s opinion, my understanding of Younger abstention compels me to disagree with part of his analysis. While I agree that we should require, “as a matter of fair conduct,” the government to adhere to its promise not to prosecute Rowe, I cannot assent to a per se adaptation of the bad faith exception to Younger abstention.

As the majority explains in its lucid presentation of the facts, District Attorney Bryan was prompted to reopen the Liuzzo case after another district attorney informed him that Rowe had failed a polygraph test indicating that he had fired the shots that killed Mrs. Liuzzo. Believing that Rowe had perjured his testimony in subsequent prosecutions of Ku Klux Klan members, Bryan then obtained a grand jury indictment against Rowe. To support the indictment, Bryan relied on the testimony of Lavone Coleman and Henry Snow, who stated that Rowe admitted on the day after the murder to shooting Mrs. Liuzzo. Bryan also offered the testimony of the two Klansmen whom Rowe helped to convict and the testimony of a state trooper. These men did not testify before the district court, however.

The district court reached its conclusion that District Attorney Bryan acted in bad faith by “investing” in Bryan “the bad faith exhibited by all of the State court witnesses.” This inference as a basis for finding bad faith is inadequate, for the possible improper motive of a witness standing alone cannot constitute bad faith on the part of the prosecutor. See Juidice v. Vail, *530 430 U.S. 327 , 97 S.Ct. 1211, 1219 , 51 L.Ed.2d 376 (1977); Wilson v. Thompson, 593 F.2d 1375, 1391 (5th Cir. 1979) (Thornberry, J., specially concurring). Thus, on appeal, we are left with nothing but the fact of prosecution itself, fifteen years after the crime, from which to infer bad faith. This fact is insufficient evidence of bad faith under any prior interpretation of the bad faith exception to Younger. See Wilson, supra, 593 F.2d at 1381-83 , where the court discusses the many forms of conduct which manifest “bad faith.”

The difficulty of satisfying traditional constructions of the bad faith exception has led the majority to adopt a per se rule, which avoids traditional requirements “as a matter of law.” Though this approach appears fair on the facts of this case, the majority rule, like any per se doctrine, encompasses cases that are today both unknown and undefinable. Thus, it is inconsistent with the concern for prudential restraint that underlies Younger abstention. See Kolski v. Watkins, 544 F.2d 762, 764-66 (5th Cir. 1977). For this reason, I regard a per se rule as unwise and unnecessary.

Since I cannot concur in the creation of a per se doctrine of unforeseeable application, and since evidence of bad faith in this case is inconclusive at best, I would rest our decision on the extraordinary circumstances exception to Younger. In Younger the Supreme Court held that extraordinary circumstances in the absence of bad faith or harassment might justify equitable relief if the complainant can prove irreparable injury. Younger v. Harris, 401 U.S. 37, 54 , 91 S.Ct. 746, 755 , 27 L.Ed.2d 669 (1971). See also Kolski, supra, 544 F.2d at 765 . No court has defined “extraordinary circumstances,” see Kugler v. Helfant, 421 U.S. 117, 126 , 95 S.Ct. 1524, 1531 , 44 L.Ed.2d 15 (1975), but it is clear that the exception is an independent ground for declining abstention under Younger . A court must find that an extraordinarily pressing need for immediate federal equitable relief exists, and that if relief is not granted, irreparable injury to the plaintiff will result. See Kolski, supra, 544 F.2d at 765 . One instance of extraordinary need noted by the Court in Younger occurs when state authorities attempt to enforce a statute that is “flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.” 401 U.S. at 54-55 , 91 S.Ct. at 755 . It is the prosecution itself, under such a statute, that violates the Constitution.

Rowe’s case is identical in this fundamental sense. He was granted immunity from prosecution for the murder of Mrs. Liuzzo. He complied with his part of the bargain. As the majority explains in its thorough discussion of equitable immunity, fairness forbids the prosecution of Rowe. Under these circumstances, the very bringing of charges against Rowe violates the Fifth and Fourteenth Amendments. For this reason, the need for federal equitable relief to avoid irreparable injury is extraordinarily pressing. Rowe has already lost his job and the secret identity given to him by the government. The real injury to Rowe, however, lies in the future. It would be the loss of the benefit of his bargain — his right not to be prosecuted. Rowe’s right to have no charges brought against him would be lost irretrievably if we permit the state prosecution to proceed. His past cooperation with federal and state authorities would have been to no avail, and our grant of equitable immunity would be meaningless. The damage to Rowe thus equals much more than “the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution.” Younger, supra, 401 U.S. at 46 , 91 S.Ct. at 751 .

I have no difficulty finding extraordinary circumstances in the facts of this case, such as to justify affirming the district court’s grant of equitable relief. I, therefore, concur in the judgment rendered by the majority, though I differ with its analysis for the foregoing reasons.