The opinion
WELLFORD, Senior Circuit Judge,
concurring.
I concur in Judge Milburn’s thorough analysis of this case. I write separately to emphasize several aspects of this ease that are troubling to this panel member. Despite the fact that Judge Lanier’s actions, as determined by the jury, were reprehensible, especially offensive, and inexcusable on the part of a judge, I have still examined this record with special care because it is an unusual criminal proceeding. We have found no other reported § 242 prosecutions involving a state judge, and we have found no other criminal cases involving charges of molestation, unconsensual touching, and, in general, sexual harassment of female adults typical in § 1983 or Title VII civil cases. Yet, no victim had brought, at the time of trial, any civil claim or charge against this defendant, perhaps because of fear, embarrassment, or understandable reluctance.
My first concern relates to defendant’s request for severance of the two felony charges involving Vivian Archie from the other misdemeanor offenses. 1 The overwhelming impact of this case upon former Judge Lanier were these two felony offenses in Counts 6 and 7. Combining the numerous other much less serious offenses (based on the penalty involved) with these two offenses (Counts 6 and 7), in my view, undoubtedly impacted unfavorably and adversely upon defendant Lanier. The government had to know in advance of the indictment that, as the majority puts it and the government admitted in its brief, the chief prosecuting witness, Archie, was far from being a “model citizen.” Archie had admitted drug problems and concededly granted sexual favors to the doctor friend of defendant. (Evidence of her general reputation was properly precluded at trial except for testimony from a number of witnesses who deemed her a liar.) I consider it to have been a close question as to whether there should have been a severance of Counts 6 and 7. Evidence of improper and unlawful touching, exposure, fondling and the like doubtless made the defense of these felony counts more difficult.
My concern is heightened by what I believe was an improper curtailment of cross-examination of Vivian Archie regarding her drug use. If she had, in fact, been under the influence of drugs at or about the time of the encounters set out in Counts 6 and 7, I believe it may well have reflected upon her credibility.
Although this may be a first criminal prosecution of this type, the instructions given by the district judge made it clear that “an unjustified touching” had to constitute “physical abuse ... of a serious and substantial nature” involving “physical force, mental coercion, bodily injury or emotional damage which is shocking to one’s conscience” to make out a constitutional violation. The district court made it clear that a great deal more than simple unwanted sexual touching must be proven to convict a state actor under § 242.
Most cases under § 242 have involved custodial situations — prison guards and officials, police or security officers, border guards, etc. The custody element is not present here and this absence has made this an unusual case.
Finally, I emphasize that there is a vast difference between a § 1983 civil prosecution of a defendant for unwanted sexual advances or harassment and a criminal prosecution under § 242, not merely based upon the different burden of proof. Willful and intentional criminal conduct, which amounts to that which shocks the conscience, is far different from that conduct which the civil plaintiff charging a § 1983 violation must demonstrate to make out a case. See United States v. Bigham, 812 F.2d 943, 948 (5th Cir.1987).
Despite these reservations, I concur in the affirmance under all the circumstances set out in Judge Milburn’s comprehensive opinion.
. The jury found defendant not guilty of the Count 10 felony offense involving Lisa Couch.