Wednesday, December 23, 2015

ACLU Amicus Brief: It Is All About Justice in Benton Harbor

The following are excerpts from the amicus brief and motion that the ACLU of Michigan filed in support of Rev. Edward Pinkney's appeal (as transcribed by Rev. Pinkney):

The American Civil Liberties Union of Michigan, through counsel, files this motion to file an amicus curiae brief in support of Rev. Edward Pinkney's pending appeal for the reasons that follow.

The American Civil Liberties Union of Michigan is an affiliate of a nationwide nonpartisan organization of over 500,000 members dedicated to protecting the fundamental liberties and basic civil rights guaranteed by the United States Constitution and civil rights statutes. The American Civil Liberties Union Fund of Michigan is the legal and educational wing of the Michigan ACLU.

Among the rights that the ACLU vigorously seeks to protect are constitutional rights to freedom of speech and association, due process and all rights to be extended to those who have been charged with violation of criminal laws.

The prosecution of Rev. Pinkney was effectively a penalty for his lawful exercise of his First Amendment right to engage in the political and civil life of his community. In addition his trial was tainted by improper references to his controversial, but lawful, First Amendment activities. Finally, he was deprived of the fair warning that a criminal justice statute must provide.

During November 2013, when the prosecutor Mike Sepic contends Rev. Pinkney was engaged in illegal acts, the statute he was charged with violating, MCL 168.937, was regarded by some judges and others as a statute that did not create a substantive crime. This effectively rendered that statute an ex post facto law, because nearly a year later the statute was construed to create a substantive crime.

The ACLU has represented Rev. Pinkney in a successful appeal of an order revoking his probation for quoting Deuteronomy 28: 15-40 in People v. Pinkney 2009 WL 2032030, unpublished opinion per curian of the Court of Appeals issued July 14, 2009, and the organization has filed amicus curiae briefs on his behalf in the instant case concerning bond.

Rev. Edward Pinkney was denied a fair trial because his First Amendment Rights were violated, and testimony about other unrelated and irrelevant acts likely distracted and inflamed the jury. The retaliation by the state for lawful First Amendment activity is prohibited, and the use of irrelevant, but politically inflammatory, evidence against Rev. Pinkney betrays improper motives for prosecuting him. Rev. Pinkney did not receive constitutionally required fair warning about the potential for criminal liability for acts he is accused of committing, because of an after the fact judicial construction of statutory language.


The American Civil Liberties Union (ACLU) of Michigan's interest in this case is rooted in the core principle of the organization. At issue is a man's right to be fully engaged in the civic life of his community without fears that his legitimate political activities--perceived by some as controversial--will be inappropriately or unlawfully used against him in a criminal trial. When that happens there is not only the risk that the attention of an inflamed jury will be improperly diverted from the relevant law and evidence, but also the risk of a consequent broad chill on speech and political participation that the First Amendment was designed to protest.

The ACLU of Michigan is concerned as well that Rev. Pinkney finds himself trapped in a due process dilemma created by a criminal justice system that should have protected him. He was charged, tried and convicted of violating a statute that creates a criminal offense, not with its language, but by way of a judicial construction of that language that post-dates the act the defendant is accused of committing. This ex post facto prosecution denied the defendant the fair warning that the Fourteenth Amendment guarantees.

While some might dismiss as insignificant the plight of a controversial activist, the strength and integrity of our Constitution and the rights it guarantees are most effectively tested when they are called upon to protest those who do not enjoy the favor of the government and powerful interests within a community. Rev. Edward Pinkney, the defendant in this matter, should be placed squarely within that category because of his long history of activism and perceptions that he has been the repeated target of reprisals and retaliation by his opponents.

Rev. Edward Pinkney is well-known in Berrien County for his advocacy on behalf of the low-income residents of Benton Harbor, a predominantly African-American city that is situated directly adjacent to St. Joseph, a predominantly white and significantly more prosperous city.

Rev. Edward Pinkney's focus individually and through his organization (BANCO) has been varied, ranging from issues of unfair treatment of African American defendants in the criminal justice system to economic development.

Some of Rev. Pinkney's supporters believe he has been targeted because he has antagonized the Whirlpool Corporation (headquartered in Benton Harbor), resisted private acquisition and development of a historic beachfront park and demanded that a portion of revenue from the PGA Senior Golf Tournament be used for economic development in Benton Harbor.