The opinion of the court was delivered by: HOWARD
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 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.
Lewellen instituted this action on April 28, 1986, seeking injunctive and declaratory relief and damages against Raff and Cahoon, as well as others.
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, the Court was advised on May 15, 1986, that the parties and counsel had agreed that the state criminal trial would be continued pending a hearing on the merits in this action by this Court. The state trial judge, by order dated May 16, 1986, continued the state criminal trial for that term. Accordingly, this Court entered an order on May 16, 1986, permitting Lewellen 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.
On October 27, 1986, Lewellen filed his supplemental 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 the 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".
3. ". . . Defendants . . . acted willfully, knowingly, purposely, and in bad faith with the specific 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] . . ." (para. 88 of amended complaint).
4. That Raff and Cahoon engaged in electronic surveillance without legal justification and a 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 ...