(Excerpt from pages xi-xiii of Appellants Brief on Appeal for Rev. Edward Pinkney's case. Oral arguments hearing scheduled May 11, 10am, Grand Rapids Appellate Court.)
Questions Presented
I. Whether there was insufficient evidence, under state law and the constitution, to convict Pinkney of forgery of recall petitions when:(a) he did not have exclusive possession of the petitions;
(b) no one testified that they saw Pinkney forge the petitions;
(c) Pinkney did not confess to forging the petitions;
(d) the forensic handwriting examiner, from the Michigan State Police, indicated that he could not determine who made the changes to the petitions;
(e) the prosecution’s own witnesses indicated that persons other than Pinkney circulated some of the petitions that were forged; and
(f) Pinkney’s witnesses indicated another person forged the petitions?
The trial court answered this question “no.”
Defendant Pinkney answers this question “yes.”
II. Whether it was reversible error to instruct the jury on an aiding and abetting theory when there was no evidence, beyond conjecture, that Pinkney aided or abetted anyone in forging the recall petitions?The trial court did not answer this question.
Defendant Pinkney answers this question “yes.”
III. Whether it violated the Michigan Rules of Evidence and the Constitutional rights to Free Speech and Due Process for evidence of Pinkney’s political and community activities to be admitted under MRE 404(b) based on the prosecution’s allegations that because Pinkney was politically and socially motivated (as indicated by his political and social activity that was 100% legal) that it was likely that he committed the illegal act of forgery that promoted Pinkney’s political goal of having the recall go forward ? This question must be considered in the context of: (a) the fact that the prosecution admitted political and other First Amendment activity that was not the subject of the prosecution’s notice of intent to introduce evidence under MRE 404(b); and (b) the fact that Pinkney’s political and other First Amendment activity, that was not the subject of the notice, was unpopular with many people in the community and was not relevant to whether Pinkney committed forgery.The trial court answered this question “no” in relation to the evidence that it agreed could be admitted pursuant to the prosecution’s MRE 404(b) notice, but did not clearly answer this question in relation to the evidence that was not the subject of the prosecution’s notice or the trial court’s written order.
Defendant Pinkney answers this question “yes.”
IV. Whether trial counsel was ineffective for failing to object to the aiding and abetting instruction that is the subject of Argument II?The trial court did not answer this question, but a motion to remand is being filed contemporaneously with this brief.
Defendant Pinkney answers this question “yes.”
V. Whether in relation to the only statute that was the basis of felony counts in the Information, MCL 168.937:(a) MCL 168.937 only sets forth a penalty provision for forgeries that are prohibited by some other section of the election code and does not set forth a substantive crime that can be the basis of a prosecution;
(b) Due Process, the vagueness doctrine and the rule of lenity are violated if MCL 168.937 – which merely states forgeries are punishable by up to five (5) years and a fine – is deemed to be a statute which prohibits forgery of any and all documents involved in an election; and
(c) where the Information fails to state an offense that can be prosecuted and there is no jurisdiction when no charges were brought under any other section of the election code?
The trial court answered this question “no.”
Defendant Pinkney answers this question “yes.”
