In Benton Harbor, Michigan, residents won a recall vote of a corrupt city commissioner through a well-organized campaign led by BANCO (Black Autonomy Network Community Organization). Then, in an attempt to circumvent the will of the people, the vote was overturned by a local judge. In a further outrage, community leader Rev. Edward Pinkney of BANCO was arrested on charges of alleged improper possession of absentee votes and improper influence of voters. Pinkney’s second trial in March 2007 before a jury with no minority representation resulted in convictions on all charges (the first trial ended in a hung jury on all charges).
The stage is set for the sentencing of Pinkney on May 14 in St. Joseph, Michigan. Pinkney’s attorneys have received the pre-sentence investigation (PSI), which recommends that Pinkney be sentenced to a minimum of 14 and a maximum of 43 months in prison. Pinkney’s attorneys will argue that the sentencing guidelines were incorrectly scored and that the minimum/maximum range should be lower. Even then, Pinkney is almost certain to get some time in jail or prison.
On May 7, Pinkney’s attorneys revealed to the judge for the first time that Pinkney passed a polygraph (lie detector) test on April 13 on all the issues on which he was convicted. The polygraph was conducted by Christopher J. Lanfear, the polygraph examiner for the Oakland County Sheriff’s Department, whose integrity and impartiality is unquestioned. Pinkney’s attorneys gave the prosecutor a confidential copy of the polygraph report and offered for Pinkney to re-take the test; the prosecution refused.
Close observers of the case believe their refusal is because the prosecution already knows he is innocent, having trumped up the charges, coerced the witnesses, and rigged the jury in the first place. Although polygraph tests are not admissible as evidence, Pinkney–who has been a watchdog of the Berrien County courts for many years–pointed out that the state only upholds this when defendants pass a polygraph. “When they fail, the state just loves to drag it in and go on and on about it. The judge allows this,” Pinkney said.
What does the justice system represent when a prosecutor expresses no interest in learning the truth? How, then, will the courts handle the sentencing of an innocent man?
At the very least, the polygraph test supports Pinkney’s argument for the most lenient possible sentence and for bond pending appeal. Even so, the bond is expected to be very high. On his initial arrest, it was set at $100,000. Since poverty and unemployment in Benton Harbor are staggering, BANCO has campaigned for national and international support to meet legal costs. Currently, Pinkney’s attorneys, Hugh Davis and Elliott Hall, have taken on the case as a National Lawyers Guild project.
Pinkney’s attorneys also filed a motion to delay sentencing because pending legislation would affect the felony charges in Pinkney’s case. The Prosecuting Attorneys Association of Michigan has recommended to the Legislature that the maximum penalty for the felonies should be reduced from five years to two years. The legislation is being held up because of the overall budget crisis in Michigan; not much legislation will go forward until some of those problems are solved. In the meantime, supporters point out that it is a waste of taxpayer money to put someone like Pinkney–a respected community leader who poses no danger to the public, and no flight risk–in prison.
Prior to the second trial, Pinkney, along with other court observers, filed affidavits complaining of systematic exclusion and under-representation of black jurors in the Berrien County court system. Pinkney has long complained of racial bias in jury selection. Pinkney is black and the jury that convicted him was an all-white jury; Berrien County is 15.5% black. Whether intentional or not, a significant disparity in representation is constitutionally significant.
The U.S. Supreme Court ruled against racial stacking of juries in a powerful 8 to 1 decision in late February. The Court ruled that an Appeals Court had made it unduly hard for a black man to get a fair trial on his claim that the jury had been unconstitutionally purged of blacks. The lower court, the Supreme Court held, did not give full consideration to the substantial evidence the petitioner put forth in support of racial bias in jury selection and instead accepted, without question, the State Court’s evaluation of the racial intent of the prosecution.
In Pinkney’s case, the judge rejected the jury challenge on the first day of the trial. By the end of the trial, he had still not issued a written decision.
On Monday, Pinkney filed a motion for reconsideration of the judge’s denial of the jury challenge, showing that the information given to his lawyers and expert in order to analyze racial disparities was inadequate, incomplete, and prevented them from doing so. Further, the judge’s refusal to adjourn the trial so that there could be a further investigation of the necessary data to prove racial under-representation prevented Pinkney from having a fair hearing on this fundamental constitutional issue.
Observers who attended Pinkney’s second trial also complained of unfair treatment. After the trial began, security was tightened to the point where people were not allowed to enter the courtroom unless they were inside before the session began. This is not normal procedure in the Berrien County courthouse. Court watchers also reported that the television monitor where they were sent to watch jury selection did not work for about half the time. Further, even when it was working, it was not possible to see much, including the potential jurors. Pinkney claims that these were violations of his constitutional right to a public trial.
On the day of the verdict, additional armed police were present and police vehicles with lights and sirens waited outside. Those present believed it was intended to create an atmosphere of fear and paranoia, as if Rev. Pinkney and his supporters represented a physical threat. The people who came to the trial were community supporters, church members, members of progressive organizations, progressive media, and interested citizens. They were respectful and interested. They represented no threat of disruption.
The treatment Rev. Pinkney has received at the hands of the criminal justice system in Benton Harbor raises serious questions about human rights and democracy. Many observers believe he was falsely accused in order to circumvent the recall election, that witnesses were coerced or bribed, and that he did not receive a fair trial. It was highly doubtful from the beginning that he could receive fair treatment in the same county where for years he has been the most outspoken critic of local political and corporate leaders, police, judges, and prosecutors and an advocate of poor and minority defendants. The request for a different venue for his trial was denied.
Those in authority should not be able to disenfranchise voters and squash dissent in Benton Harbor, or anywhere. Regardless of whether you agree with him, Pinkney is a nationally known defender of the rights of the community and critic of the criminal justice system. The City of Benton Harbor has some of the most dismal economic, employment, and crime statistics in the nation. The trial outcome for Rev. Pinkney has dealt a devastating blow to the community.
Pinkney’s supporters are planning a mass demonstration and march from Benton Harbor to the Berrien County courthouse in St. Joseph at noon on Monday, May 14, prior to his sentencing hearing at 1:30pm.
BANCO is the Black Autonomy Network Community Organization of Benton Harbor.