By Philip A. Bassett
In early November, Michigan’s court of last resort finally heard the oral arguments in the
case of Rev. Edward Pinkney. The 69 year old activist, free since June of this year after serving a 30-month sentence, is still pursuing the appeal on moral grounds. It’s been a long road, but he may have a receptive audience this time in the Michigan Supreme Court.
There have been a large number of irregularities in Berrien County’s prosecution of Rev.
Pinkney but the two that attorney Tim Holloway highlighted were the law that was used to
convict the reverend and the prejudicial nature of the prosecution.
The law the prosecution used, it seems, is only a “penalty” provision, which doesn’t spell
out the “elements” of the charges in any clear way. Chief Justice Stephen Markman remarked that it was then a “nothing” and wondered aloud if that discrepancy could, after all this time, be used to charge Pinkney again. Whether the musings of a legal master or a veiled threat, it was a subtle reminder that this is an intricate game of chess, after all, and a good reason for the average person to stay out of court.
Aside from that, most of the justices seemed to regard that section of the legal code as
ponderous and unclear, with Markman commenting that the average person couldn’t be expected to wade “through 700 pages” before circulating a petition. Even the prosecutor admitted that the law was unclear, though he quipped that, “so is the tax code”.
The other thing that had the prosecution in the hot seat was the extensive use of racial
innuendo at the Pinkney trial. It seems the only thing the government could find to put in the
evidence bag was that Rev. Pinkney is an effective, influential black leader who has the audacity to lead marches and hold meetings, and has enough star power to bring Danny Glover to town. In some places that would be okay, but in Berrien County it was enough to scare the hell out of an all-white jury.
Supreme Court Justice David Viviano spoke at length to the prosecutor, saying he had
read the transcript and was surprised to find so many references to seemingly innocent activities submitted as evidence. He even asked if the prosecutor thought these references might be seen as “prejudicial”. Justices Bernstein and Wilder also raised concerns. The prosecutor, for his part, fielded the questions calmly and easily. You might have thought he was talking about his golf game, rather than two and a half years of a man’s life.
Of the other justices, Zahra seemed non-committal and McCormack was silent
throughout the proceeding. The seventh justice, Jane Larsen, was absent. I talked to Rev. Pinkney right after the hearing. It’s amazing how tall he stands after being dragged down by Berrien County’s brand of justice and spending two and a half years in the hell called prison. He told me that Justice Larsen had been promoted, reducing the panel to six people and creating the possibility of a 3-3 tie. Furthermore, he said, that if the votes of the remaining six ended in a deadlock, that would mean a loss for him.
That seemed like an unacceptable ending for such a long fight, so a few days later I called
the court clerk’s office. The woman who answered confirmed that, yes, there could be a tie and that it was all dealt with in the Constitution. She explained that, first of all, a tie was “extremely rare” (there normally being seven judges) and that it could only happen under “extraordinary circumstances”. I couldn’t help thinking that, for most people, a promotion would come under the heading of “ordinary”.
Perhaps sensing the worry in my voice, she went on to assure me that the judges “don’t
want a tie” anyway and stressed again that ties were extremely rare. In other words, a gray area. I got off the phone with a little better idea of how Berrien County has been getting away with their shenanigans for so long. It seems our laws are deliberately kept vague so they can be bent, as needed. Referring to the law that convicted Rev. Pinkney, “vague” doesn’t even begin to describe it, and the judges know it.
So the court now has three options.
They could take the high road and grant the appeal. Unfortunately, this road is seldom
used by the judiciary nowadays, large swaths of it having been removed from the state. (Some say it is totally inaccessible in Berrien County.) Still, they might throw Rev. Pinkney a bone, since he has already served his sentence and they wouldn’t, in effect, be giving him anything.
They could take the low road, requiring no course change from the route taken since the
inception of this case. It’s a sad day in the United States when a man can be locked up for two and a half years over five dates that were supposedly changed in a petition drive he was involved with. That his appeal was denied at the appellate level is staggering; a denial at this level would be monstrous—enough to send shivers up the spine of anyone who has ever circulated a petition.
The third choice is the no-road, or a tie, and since this option is currently available, it will
likely be used. There are several advantages to this course: the court doesn’t have to align itself with the Berrien County court house, which, to my knowledge, has the worst reputation in the state; they don’t have to give in to Pinkney, who, it is said, thinks well of himself; they avoid any controversy because they just couldn’t help it; and, finally, it fulfills their role as chief obfuscators of last resort, assuring no real progress toward a level playing field in Michigan.
However, even the third choice has its problems. American faith in the judiciary, and law
enforcement in general, is waning. The average person is becoming aware of government tactics and the amount of lies made by officials in court rooms. This epiphany might be compared to the exposure of pedophile priests in the Catholic Church—it will only get worse, and when people begin to feel the brunt of it, our judicial system will be shaken to the core. We may even be coming to a time when wearing a black robe will be seen as a sign of shame. But that is probably a ways off yet.
In the meantime, to be fair, the current crew in the Supreme Court did show some
promise; maybe they’ll do the right thing. We’ll see.
Philip A. Bassett is the author of Soldier of Truth: The Trials of Rev. Edward Pinkney