Smith v. Hightower
| Citation | 693 F.2d 359 |
| Decision Date | 22 December 1982 |
| Docket Number | No. 82-2121,82-2121 |
| Parties | J.B. SMITH, Plaintiff-Appellee, v. Keith HIGHTOWER, et al., Defendants, Hunter B. Brush, Alvin G. Khoury, Alan L. Manning, and Galloway Calhoun, Defendants-Appellants. Rehearing Denied |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Charles H. Clark, Tyler, Tex., for Brush & Manning.
Douglas M. Becker, Asst. Atty. Gen., Austin, Tex., for Khoury & Calhoun.
Joe Tunnell, Tyler, Tex., John W. Tunnell, Austin, Tex., Wilton H. Fair, Tyler, Tex., for plaintiff-appellee.
David Crump, Houston, Tex., University of Houston, for Texas Dist. & County Attys. Ass'n.
Frederick M. Schattman, Fort Worth, Tex., for Texas Prosecutors Council.
Appeal from the United States District Court for the Eastern District of Texas.
Before BROWN, WISDOM and RANDALL, Circuit Judges.
This is not a run-of-the-mill case. It involves an action under 42 U.S.C. Sec. 1983 by J.B. Smith, the elected Sheriff of Smith County, Texas, to enjoin removal proceedings and a state criminal prosecution against him. Sheriff Smith has admitted to committing unlawful and reprehensible acts, including pouring gasoline on a car in order to burn it and threatening to kill an investigator of the local district attorney, but he continues to serve in office because the district court enjoined his removal and prosecution. We must decide whether the district court erred in granting the injunction based on a finding that the proceedings against Sheriff Smith were instituted in retaliation for testimony given by the Sheriff and his deputies in an earlier state prosecution. We conclude that the district court should have abstained from hearing this suit under the doctrine of Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669. We reverse.
The district court found the proceedings against Sheriff Smith were retaliatory based on hostility between the Sheriff's office and District Attorney's office, the manner in which the indictments were brought, and the timing of the indictments. To evaluate these findings, we must examine in considerable detail the series of events which allegedly gave rise to a retaliatory prosecution. In 1976, J.B. Smith was elected Sheriff of Smith County, and in 1980, he was re-elected. Hunter B. Brush served as District Attorney of Smith County from 1967-70 and was elected to this position again in 1978. In August 1979, the United States Attorney for the Eastern District of Texas, John Hannah, began receiving complaints about Sheriff Smith. These complaints included charges that Sheriff Smith was using prison labor on his ranch, that he was selling social security cards to employers of illegal aliens, and that he was using county property for personal purposes. 1
Hannah asked Brush to investigate these matters. Hannah testified that Brush flinched at the prospect of conducting a criminal investigation against Sheriff Smith out of a fear that it might be perceived as a political vendetta. Brush requested that Hannah investigate these matters, but he would not. Eventually, Charles Carver, an investigator for the District Attorney's office, began to investigate the Sheriff's use of prison labor and other charges against Sheriff Smith. Carver and Brush testified that Brush did not know of Carver's investigation of Sheriff Smith.
During this time, Creig Matthews and Kimberly Ramsey, two undercover agents who were working for the Tyler Police Department, arrested a number of individuals on charges of drug trafficking. Among those arrested was Kenneth A. Bora (who had moved from Dallas to Tyler), an alleged gun dealer, narcotics racketeer, and a dealer exploiting child pornography. 2 On the night of September 15, 1979, an assailant attacked Matthews and Ramsey in their trailer while they slept. According to Ramsey, she was awakened by a shotgun in her face and looked up between slightly parted curtains to see Bora. As she attempted to escape, the assailant fired. Matthews was wounded seriously; Ramsey was injured slightly.
Within minutes, Sheriff's deputies arrived. 3 Sheriff Smith, who was informed of the shooting very soon after its occurrence, asked Texas Ranger Stuart Dowell to assist the Sheriff's department in the investigation of the shooting. The Sheriff did not personally participate in the investigation, but assigned Deputy Tony Richardson to work with Dowell. Dowell and Richardson soon questioned Ramsey's account of the shooting because they did not believe it was corroborated by the physical evidence at the scene of the shooting. Brush found himself embroiled in a controversy between the Tyler Police, who wanted Ramsey's word to be believed, and Dowell and Richardson, who questioned it. Brush took the position that no arrest should be made until the officers were sure they had the right suspect. The Sheriff arrested Bora only after the doubts of Dowell and Richardson were allayed by the x-rays of Matthews, which showed the shooting could have occurred as Ramsey had stated.
The investigation of the shooting continued, and the grand jury indicted Bora. The District Attorney's Office, however, became concerned when three deputies, who had indicated that Ramsey was certain that Bora had shot her, changed their stories and said that Ramsey was unsure of her assailant's identity on the night of the shooting. 4 Prior to trial, Brush called Sheriff Smith and asked him to straighten out the inconsistencies in the statements of his deputies. Sheriff Smith met with the deputies, confirmed that their statements were the truth, and relayed this information to Brush.
Bora was tried for the shooting of Matthews in May 1980. The defense relied on the deputies' testimony 5 that Ramsey made conflicting statements as to the identity of her assailant 6 and on an expert ballistic report stating that the shooting could not have occurred as Ramsey had described. The prosecution established that the ballistic report was based on incorrect facts that Deputy Richardson had given to the expert. When the prosecution provided the correct facts, the expert stated that the shooting could have occurred as Ramsey had described. The jury resolved any doubts in favor of the prosecution, and Bora received a twenty-year prison sentence.
After the trial, some members of Brush's staff, especially Chris Harrison, were upset about the testimony of some of the deputies. Some staff members also felt that the Sheriff's department and Dowell bungled the investigation. 7 The Sheriff's department had reason to be displeased with Brush's office. At the Bora trial, Harrison attacked the credibility of certain deputies and the reputation of the Sheriff's department. There were also charges that Brush's office wrongfully withheld exculpatory evidence from Bora's defense attorney.
The members of Brush's staff all testified that Brush was conciliatory about the matter. Members of the Sheriff's staff differed in their opinions on how the Bora investigation and trial affected relations between the Sheriff's office and District Attorney's office. Deputies Richardson and England testified that relations went steadily downhill, but they were able to cite only one example of the deterioration. 8 Three other deputies, Bobby Miller, Walter Woodhull, and Shontell Woodhull, did not think that any problems existed or that relationships changed after the shooting, but these deputies were not involved in the Bora investigation.
During this time, Charles Carver, an investigator on Brush's staff, had photographed the Sheriff's ranch while investigating the charge that the Sheriff was using prison labor illegally. The Sheriff saw these photos and went to Brush's office on February 4, 1980 to discuss the matter with Brush and Carver. The Sheriff, accompanied by a burly deputy with the nickname "Mad Dog" because of sixteen charges of brutality against him, threatened to break Carver's neck and to kill him if he did not keep out of the Sheriff's business.
Carver immediately wanted to file a charge against Sheriff Smith for retaliation or assault. Brush and Carver testified that Brush prevented Carver from filing a charge in an effort to preserve reasonably good working relations with the Sheriff's department. Carver testified that he badgered Brush about the matter, but that Brush remained firm in not allowing him to file a complaint as long as Carver was on his staff. Sheriff Smith testified that he had simply lost his temper and made a fool of himself. The Sheriff soon let Carver back in the Sheriff's office to conduct routine investigations. 9
In the spring of 1981, a female acquaintance of the Sheriff was charged with shoplifting from Skaggs Alpha Beta, a local Tyler supermarket. The Sheriff, at the request of a friend of this woman, traveled to Dallas in a Sheriff's car to induce officials of Skaggs to drop the shoplifting charges. On May 29, 1981, officials of Skaggs in Dallas traveled to Tyler and filed a complaint against the Sheriff. In their affidavits, the officials maintain that Sheriff Smith offered to buy lunch for the officials he met with to persuade them to drop the charges. The affidavits also state that the Sheriff told officials that he would gain sexual favors from the woman if they decided to drop the charges. On this information, Brush concluded that the Sheriff had committed official misconduct in violation of Tex.Penal Code Ann. Sec. 39.01, and within three or four days Brush decided to take the matter to the grand jury.
During this time, attorneys for Bora had begun to pursue post-conviction remedies in state court. Allegations had surfaced that Matthews and Ramsey had framed Bora and others on drug charges. Both Matthews and Ramsey pleaded guilty to committing perjury in the drug cases, and this made their testimony in the shooting trial suspect. Bora also contended that the District Attorney's office had suppressed evidence favorable to him.
Bora's writ...
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