Rowe v. Griffin

• Decision Date: 17 May 1982
• Docket Number: No. 80-7874,80-7874
• Citation: 676 F.2d 524
• Parties: Gary Thomas ROWE, Plaintiff-Appellee, v. Carl GRIFFIN, etc., Defendant, Hon. Jesse O. Bryan, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 524

676 F.2d 524

Gary Thomas ROWE, Plaintiff-Appellee, v. Carl GRIFFIN, etc., Defendant Hon. Jesse O. Bryan, Defendant-Appellant.

No. 80-7874.

United States Court of Appeals Eleventh Circuit.

May 17, 1982.

John A. Taber, John S. Andrews, Greenville, Ala., for Bryan.

J. Paul Lowery, Montgomery, Ala., Clifford W. Cleveland, Prattville, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before THORNBERRY ^*, FAY and HATCHETT, Circuit Judges.

FAY, Circuit Judge:

The District Court for the Middle District of Alabama has permanently enjoined defendant Jesse O. Bryan, the District Attorney for Lowndes County, Alabama, and his successors in office from further prosecution of plaintiff Gary Thomas Rowe for the murder of Viola Liuzzo. 497 F.Supp. 610 (1980). The familiar question on appeal is whether, under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), this federal court injunction of a pending state criminal prosecution is proper. We find that it is. The prosecution of Rowe is within the "bad faith" exception to the Younger doctrine. The order of the District Court is affirmed.

The criminal prosecution of Rowe is related to a murder which occurred seventeen years ago during the Selma to Montgomery Civil Rights March. Mrs. Liuzzo was killed on the evening of March 25, 1965, when her automobile was overtaken and fired upon by Ku Klux Klansmen. At the time of the murder, Rowe was a paid informant for the Federal Bureau of Investigation (FBI), working undercover within the Ku Klux Klan. The day after the murder, Rowe reported it to his FBI contact, explaining that he was with the three Klansmen who killed Mrs. Liuzzo, but that he did not fire a shot at her car. Rowe aided the FBI in locating evidence of the crime and identified the Klansmen as William Eaton, Eugene Thomas, and Collie Wilkins. (Eaton is now deceased.) After being assured of immunity from prosecution by the Attorney General and the Assistant Attorney General of the State of Alabama, who have both since retired from office, and by the FBI, Rowe testified against the Klansmen. He appeared before a state grand jury, in two state murder trials, before a federal grand jury, and in a federal trial. The state trials resulted in a mistrial and in an acquittal, but the Klansmen were convicted by the federal court of violating Mrs. Liuzzo's civil rights. Following the trials, Rowe was relocated and given a new identity by the FBI.

Thirteen years later, District Attorney Bryan attended a district attorneys' conference in Mobile, Alabama. At the conference another district attorney informed Bryan that new information had surfaced regarding the Liuzzo murder. Bryan investigated further and learned that Rowe and the two surviving Klansmen had recently submitted to polygraph tests conducted under the auspices of American Broadcasting Company. Bryan obtained the filmstrip prepared by the television company and the results of the polygraph tests. The test results indicated to Bryan that Rowe had fired the shots which killed Mrs. Liuzzo. Bryan then presented his case to the Lowndes County Grand Jury which returned an indictment for murder against Rowe in September, 1978. Prosecution of Rowe was halted by a federal injunction on October 2, 1980. The injunction was granted by the District Court on the basis that Younger's abstention doctrine was inapplicable because the prosecution of Rowe was in bad faith and under extraordinary circumstances. Federal jurisdiction was based on 42 U.S.C. § 1983 and 28 U.S.C. § 1343. ¹

Ordinarily a federal court should refrain from interfering with a pending state criminal prosecution, either by injunction or declaratory judgment. Younger v. Harris, supra; Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). Equitable intervention is appropriate only when there exist special circumstances which create a threat of great, immediate, and irreparable injury. Kugler v. Helfant, 421 U.S. 117, 123, 95 S.Ct. 1524, 1530, 44 L.Ed.2d 15 (1975); Younger, 401 U.S. at 46, 91 S.Ct. at 751. Prosecutions taken in bad faith or for the purpose of harassment fall within this exception. Younger, 401 U.S. at 49-54, 91 S.Ct. at 753; Fitzgerald v. Peek, 636 F.2d 943, 944 (5th Cir. 1981); cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981); Wilson v. Thompson, 593 F.2d 1375, 1381 (5th Cir. 1979), aff'd after remand, 638 F.2d 801 (5th Cir. 1981); Shaw v. Garrison, 467 F.2d 113, 119-22 (5th Cir.), cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972). ² Such a situation is present in this case. We find that, in the absence of credible evidence that Rowe testified untruthfully or otherwise failed to perform his part of the bargain, the prosecution of Rowe, after Rowe was assured of immunity from prosecution by state prosecutors, is per se a bad faith prosecution.

The record discloses that on at least one occasion the Attorney General and the Assistant Attorney General of Alabama met with Rowe and FBI agents to discuss the conditions under which Rowe would agree to testify against the Klansmen and a deal was struck: Rowe was given assurances of immunity from prosecution in return for his testimony. This grant of immunity was not specifically authorized by statute, but the state's highest legal officers assured Rowe that he would not be indicted or prosecuted for any of his activity on the occasion of the murder. The quid pro quo of this bargain is obvious. Rowe was literally the prosecution's entire case.

Applying the concept of equitable immunity ³ to the promise made by the state prosecutors, the District Court held that the promise should be enforced, yet inexplicably limited Rowe's immunity to use immunity. This characterization is wrong as a matter of law. The promised immunity was not limited solely to excluding use of Rowe's testimony and evidence derived therefrom in a subsequent prosecution of Rowe; Rowe was told there would be no subsequent prosecution. Thus, Rowe was offered transactional immunity in return for his cooperation and testimony against the Klansmen. ⁴

Similar promises have been considered, but not enforced, in United States v. Calimano, 576 F.2d 637 (5th Cir. 1978) and United States v. Weiss, 599 F.2d 730 (5th Cir. 1979). ⁵ In both cases the defendants asserted that they were promised that they would not be prosecuted if they cooperated in obtaining evidence against others. In Calimano, the defendant had perjury charges pending against him when he met with the federal prosecutor to discuss fraudulent activities in the home health care industry. It was understood between the parties that Calimano would not answer any questions involving the perjury charges and that he would not testify for the government. Prior to trial Calimano moved to dismiss the indictment, claiming that he submitted to the interview because the prosecutor promised to dismiss the perjury charges. 576 F.2d at 638-39. The court, however, agreed with the prosecutor that no firm commitment had been made to drop the charges. Moreover, Calimano was not prejudiced by his cooperation, because he made no self-incriminating statements, was asked no questions regarding the perjury charges, and was not called by the government to testify against his confederates. Id. at 640. In Weiss, FBI agents confronted Weiss with evidence they had amassed against him and suggested that if he cooperated with federal prosecutors, the prosecutors might be persuaded not to bring him to trial. Weiss agreed to cooperate and the next day he met with a government attorney to discuss the involvement of organized crime in the Atlanta nightclub industry. Weiss was not questioned regarding the evidence against him and, after two interviews, the prosecutor concluded that Weiss was not being truthful and discontinued the talks. 599 F.2d at 733-34. As in Calimano, the Weiss court held that the government never made a firm commitment not to prosecute and, in any event, Weiss was not prejudiced by his revelations. Id. at 735, 737-38.

Unlike the situations in Calimano and Weiss, we are confronted with a case where it is obvious that the state prosecutors made a commitment not to prosecute Rowe. In addition, the defendants in those two cases never revealed information concerning the charges against them and they did not testify for the government. Just the opposite occurred in Rowe's case. Lead to believe that he was immune from prosecution, Rowe testified against the Klansmen at the state murder trials and disclosed information and evidence that is directly related to the prosecution now being taken against him. Without a doubt, the state would not have benefited from Rowe's willing assistance if Rowe had any inkling that he would later be brought to trial on the same charges.

We note that, under the self-incrimination clause of the fifth amendment, evidence of guilt induced by a government promise of immunity is "coerced" evidence and may not be used against the accused. Shotwell Manufacturing Co. v. United States, 371 U.S. 341, 347, 83 S.Ct. 448, 453, 9 L.Ed.2d 950 (1963). For purposes of compelling testimony which otherwise would be privileged by the fifth amendment, all that is constitutionally required is a grant of use immunity. Kastigar v. United States, 406 U.S. 441, 458-59, 92 S.Ct. 1653, 1663, 32 L.Ed.2d 212 (1972). However, in order to secure testimony, evidence, or other cooperation from a potential criminal defendant, a prosecutor may see fit to promise complete immunity from prosecution. Although Weiss held on its facts that no agreement had been entered into, the case suggests that an analysis of the binding effect of an agreement not to prosecute should consider "whether there was a promise held out to which the government, as a matter of fair conduct, might be bound." 599 F.2d at 738. We believe that, as a matter of fair conduct, the government ought to...