Letter to Berrien County Sheriff from Rev. Pinkney's attorney:
March 26, 2008
L. Paul Bailey, Sheriff Via telefax only to:
269-983-9956
Berrien County Sheriff’s Department
919 Port Street
St. Joseph, MI 49085
Re: Inmate: Reverend Edward Pinkney
People (Berrien County) v. Pinkney
Case No. 2005-401979-FY
Dear Sheriff Bailey:
This letter concerns the “shakedown” of the cell/block
conducted by your officers involving the Reverend
Edward Pinkney’s cell on Friday, March 21, 2008. This
letter is written as a result of two telephone
conferences which I had with Judge Butzbaugh and
Assistant Prosecuting Attorney Vigansky on March 25,
2008.
At Judge Butzbaugh’s direction, Vigansky apparently
consulted with you regarding the claims that you had
taken or interfered with Reverend Pinkney’s legal
papers during and after the shakedown.
According to Vigansky, you told him that it was a
routine shakedown carried out on an rotating basis of
the various sections of the jail. You indicated to
Vigansky that you found one legal pleading (presumably
sent to Pinkney by his attorneys which had a staple in
it, which was removed for security purposes).
You further indicated that you found certain notes
made by Pinkney during a disqualification hearing
before Judge Wiley and, somehow believing them to be
contraband, threatening, violation of probation or
otherwise significant, seized them and placed them
with Pinkney’s personal belongings. You further
copied them and delivered them to Judge Wiley, who
subsequently forwarded them to Judge Butzbaugh.
According to our information, you also took legal
papers prepared by Kelly Flint, one of Pinkney’s
attorneys and notes which Pinkney keeps at my
direction of conditions in the jail and his treatment
there. All seized papers should be returned. Our
position is that the seizure of the papers was
arguably in violation of the First, Fourth, Fifth and
Sixth Amendments.
Regarding the First Amendment, you may believe, as
others do, that Pinkney was incarcerated for violation
of probation for writing criticisms of the Berrien
County criminal justice system, including your
department. That is not true. Judge Butzbaugh
specifically found on December 20, 2007 that Pinkney’s
writing calling the court racist, corrupt and dumb was
protected by the First Amendment. What remains is
whether or not Pinkney’s specific invocations of
biblical prophecies that God will punish those who
practice injustice was a threat against Judge
Butzbaugh. That issue is pending and unresolved.
Consequently, no matter what writings you find in
Pinkney’s papers, so long as they do nothing more than
express his opinion about the police, courts, judges,
jail, etc., even in terms most offensive to you, they
are protected expression and cannot be the subject of
penalty or confiscation.
Further, under the Fourth Amendment protections
against unreasonable seizures of persons or property,
although constitutional rights are diminished during
incarceration, they are not completely abrogated.
Under the First and Fourth Amendments, you had a right
to look through Pinkney’s papers for contraband, but
not to read them for content. To then seize some of
them as a result of your belief that they contained
improper content was a violation of the Fourth, as
well as the First Amendment.
Next, the Fifth Amendment protects against
self-incrimination. Pinkney is charged with a
probation violation relating to his alleged written
threats against Judge Butzbaugh or others. His
written notes or thoughts during the conduct of court
hearings cannot be used against him as evidence of
some further violation of probation, which implicates
his liberty interest in a criminal (probation
violation) hearing.
Your act of copying the notes and delivering them to
Judge Wiley, who is at present assigned to hear the
probation violation hearing, pending a ruling by Judge
Butzbaugh on the disqualification of Judge Wiley or
the entire Berrien County criminal court bench is
particularly troubling. Pinkney made notes before,
during and after our hearing before Judge Wiley
specifically at the request and direction of counsel
(me). Those communications are privileged and either
reading them or seizing them, invades the Sixth
Amendment attorney-client privilege and right to
counsel.
For you to copy them and send them to Judge Wiley
smacks of obstruction of justice and improper
unilateral communications with the Court. I am
confident that, if you had consulted with Mr.
Vigansky, he would have informed you that the papers
should be returned to Reverend Pinkney and should
under no circumstances be submitted to the Court
without his permission.
I do not comment on all of the complaints which have
been received regarding your treatment of Reverend
Pinkney since December 14, 2007. I only indicate that
your actions regarding these papers were facially
violative of a number of constitutional rights. You
cannot read, search or seize materials relevant to
Pinkney’s defense to either the main charges against
him or the pending probation violation without
violating his right to free speech and access to the
courts. It also implicates his right to be free from
unreasonable seizures, the prohibition against
self-incrimination and his right to counsel.
I request a response from you, the Prosecutor or
civilian counsel for the County, and urge you to
return the papers and make no further seizures.
Sincerely,
Hugh M. Davis
Constitutional Litigation Associates, P.C., 450 W. Fort St., Ste 200, Detroit, MI 48226
phone (313) 961-2255 / fax (313) 961-5999, e-mail: conlitpc@sbcglobal.net
