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Old Times There are Not Forgotten: Judge Littlejohn as prosecutor

The incarceration of Danny Lampley over compelled speech was not Judge Littlejohn’s first trip over the First Amendment.  A reader sent in a Fifth Circuit opinion in Ealy v. Littlejohn, 569 F.2d 219 (5th Cir. 1978), by Judge John R. Brown, who was one of the Fifth Circuit’s Unlikely Heroes written about by Jack Bass:

On June 28, 1974, Butler Young, Jr., a twenty-one-year-old black youth, died in Byhalia, Mississippi, from a gunshot wound inflicted by law enforcement officers of Byhalia and Marshall County, Mississippi. The law enforcement officers were not immediately subjected to prosecution by the state, and this delay precipitated protests and boycotts by the black community. The boycotts were organized and supervised by the Marshall County United League, an association of black citizens of Byhalia, Marshall County, Mississippi.

Subsequently, the League was enjoined by the Chancery Court of Marshall County from carrying out the boycotts. Its members and officers then attempted, without success, to enjoin these state court proceedings in federal District Court. On appeal to this Court, we reversed and directed the issuance of an injunction against the enforcement of the state injunction. The latter injunction is now in force and is effective to restrain the state court from interfering with the rights of the parties to engage in peaceful protests and boycotts.

District Attorney Talmadge Littlejohn presented the Butler Young, Jr. incident to the Marshall County grand jury during its August 1974 term. That body did not, however, return indictments against any of the three police officers who had custody of Young the night of his death.

After the grand jury recessed on August 21, 1974, the League prepared and circulated among the citizens of the county a leaflet which accused the law enforcement officers of Byhalia, the county sheriff’s department and the state highway department of failing to conduct a serious investigation into the death of Young because he was black. The leaflet also accused Littlejohn of acting as defense attorney for the officers rather than as prosecutor. It additionally labeled the grand jury hearing a “farce.” When, on September 6, 1974, the leaflet was brought to the attention of Littlejohn and Judge W. W. Brown of the Circuit Court of Marshall County, an order was immediately entered by Judge Brown calling the grand jury back into session. By law, the term of the Circuit Court ended at midnight, September 7, 1974. But pursuant to Judge Brown’s order, the grand jury was to remain in session until it had interrogated all witnesses who, in its judgment, might have knowledge of any improper activities. Through Littlejohn, the grand jury caused subpoenas to issue to all officers and several members of the United League of Marshall County. The records and minutes of the League were also subpoenaed.

On Saturday, September 7, 1974, the grand jury reconvened and remained in session for two days. During that time Littlejohn and the grand jurors conducted an investigation into the origin of the leaflet and the information on which its accusations were based. The grand jury also attempted to ascertain if any of those responsible for the leaflet had any personal knowledge, or knew of any other person having personal knowledge, of the facts surrounding the fatal shooting of Butler Young, Jr. League members and officers were also questioned about the internal and financial operations and activities of their organization. A final report was made to the court at the conclusion of the investigation, the grand jury recommending that:

(T)he proceedings of this Grand Jury (be) transcribed by the Court Reporter and that copies of such proceedings be released to the news media, the general public, the District Attorney, the County Attorney, and the Mississippi State Tax Commission, so that a proper evaluation may be made thereof, and appropriate action taken, if advisable as to the matters contained therein.

Report of the Grand Jury, filed September 11, 1974, at 3 (Exhibit 6).

Following the issuance of this report the League filed its s 1983 action against Littlejohn, Judge Brown and D. Rook Moore, the County Attorney.  The complaint alleged that the issuance of the subpoenas and the grand jury inquiries into the League’s activities, organization, financing, and the leaflet were carried out in bad faith with the purpose of harassing and intimidating the plaintiffs in violation of their First Amendment rights. The plaintiffs requested a temporary, preliminary and permanent injunction restraining the defendants from interfering in the exercise of those rights. It further called for the expunction of portions of the transcript from the state court records and an injunction against Littlejohn and Moore prohibiting them from instituting any prosecution of plaintiffs or plaintiff class based on their grand jury testimony.

Two days before the conclusion of the hearing, State Circuit Judge Brown issued an order dated October 21, 1974, directing that the transcript of the grand jury proceedings be sealed and not made available to the public and news media. The order, however, stated that the transcript could be “inspected by any future Grand Jury of Marshall County, Mississippi, or any State or Federal officer in their line of duty upon application to the Court.” Court Exhibit 1, at 2.

On November 20, 1974, the Fifth Circuit, through Judge Simpson, granted an injunction pending appeal for a fifteen-day period. Subsequently, a panel of the Fifth Circuit denied a motion for a stay pending appeal and a petition for injunction pending appeal. R. at 57.

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