Framing Reverend Pinkney

— Ted McTaggart

ON MARCH 21, 2007, REVEREND Edward Pinkney, leader of the Black Autonomy Network Community Organization (BANCO), was convicted by an all-white jury at the Berrien County Courthouse in St. Joseph, Michigan. The jury found him guilty on five counts of voter fraud — four felonies and one misdemeanor — for which he could face up to 20 years in prison.

Rev. Pinkney is from Benton Harbor, a town in Southwest Michigan that is 94% African American, 90% poor and 70% unemployed. He and BANCO first garnered national media attention in the wake of the June 2003 Benton Harbor uprising, in which the U.S. Army was called in to repress a community outraged by the killing of a young Black man by the police. In the weeks following the uprising, Rev. Pinkney and BANCO organized a nonviolent march of over 200 concerned citizens demanding justice for the people of Benton Harbor and an end to police brutality.

Rev. Pinkney also become well known because he picketed the Berrien County Courthouse daily to protest the racism of a criminal justice system that did not provide defense for the poor, mostly African-American defendants. He was not afraid to name names of those be believed were involved in corrupt and racist practices.

Twin Cities, Different Realities

Though Benton Harbor and St. Joseph are known as “twin cities,” the contrast between the two could not be starker. St. Joseph is an affluent, nearly all-white lakefront resort town, home to the Whirlpool corporation’s world headquarters. African Americans comprise only 5.1% of St. Joseph’s population.

Whirlpool, a company that has come under repeated scrutiny for racial discrimination, is widely recognized as the puppet master behind Berrien County politics. To Whirlpool and the local powers that be, Benton Harbor was nothing more than an unsightly blemish on the county’s face.

Recruiting to their cause Benton Harbor city council member Glenn Yarbrough, a well-connected and powerful local politico, Whirlpool and St. Joseph authorities set out to instigate a hostile takeover of the town — a legal land grab that would displace the African-American community, taking over 465 acres of prime lakefront land in exchange for less than a million dollars. The plan would strip the town of its only beach and attach the land to an adjoining -— and mostly white -— township. Then they would be truly comfortable in constructing a marine/residential/golf course complex.

Rev. Pinkney knew that Yarbrough was the key to Whirlpool’s intended ethnic cleansing. He and other members of BANCO led a grassroots petition drive to gather support for a recall election to remove Yarbrough from the city council. Rev. Pinkney calculated that the best strategy for winning the recall -— given the city’s medical problem/handicap rate of 47% -— would be mobilizing the absentee voters.

On February 22, 2005, with a 42% absentee voter rate, Glenn Yarbrough was voted out of office by 54 votes. Before the polls were closed, local authorities were already planning their response.

Behind closed doors Yarbrough met with representatives from Whirlpool and Cornerstone Alliance (a subsidiary of Whirlpool under whose auspices Benton Harbor land was being bought up) and County Prosecutor James Cherry. Yarbrough was instructed to find somebody, anybody, who could testify that Rev. Pinkney bought votes.

Within a week Yarbrough produced Mansel Williams, who alleged that Rev. Pinkney paid him $5 for his vote. Later Williams signed an affidavit stating that he had been paid $10 by Yarbrough and promised immunity by the County Prosecutor. But neither the police nor the county sheriff’s investigation followed that lead.

Working off the absentee voter list, police located Brenda Fox, a drug user and prostitute whom Pinkney had helped in the past. The day before the election she had gone to a local soup kitchen and recruited people to work for $5 each to pass out leaflets. Some were registered to vote and wanted to do so. They went to the Clerk’s Office, got absentee ballots and cast their votes.

In the hearing for the lawsuit to set aside the recall, Brenda Fox testified that Rev. Pinkney had told her to pay people $5 to vote against Yarbrough. As a result, the City Clerk lost her job, Rev. Pinkey was arrested for voter fraud, and a new election was called. Given the political climate in which the second election was held, Pinkney’s campaign to unseat Yarbrough was unsuccessful. But Glenn Yarbrough won his city council seat by only 40 votes.

Rev. Pinkney was tried in spring 2006, defended by a local attorney, Tat Parish. There were two African Americans on the jury — a roughly accurate reflection of the population in the county, although hardly what most residents of Benton Harbor would consider a jury of their peers!

The prosecution’s case rested almost entirely on the testimony of witnesses who had reasons to cooperate with local authorities in the frame-up. Most were destitute, many homeless and vulnerable to prosecution for narcotics possession or other petty crimes. Others, like Deputy City Clerk Kimberly Thompson, were themselves guilty of improprieties.

Some of the prosecution’s key witnesses broke down on the stand, changing their stories and implicating Yarbrough and Cherry. After three days of deliberation, the trial resulted in a hung jury on all five counts.

Despite the lack of evidence, the prosecutor would not allow Rev. Pinkney to walk away a free man and declared his intention to retry the case. The last major barrier standing in the way of Whirlpool’s plans to take over Benton Harbor, Rev. Pinkney had to be eliminated.

The Trial’s Constitutional Issues

The retrial, originally scheduled for last fall, was postponed several times, in part due to the court’s failure to provide the defense with a transcript of the first trial.

In early 2007, defense attorneys Timothy Holloway and Elliot Hall filed two motions contesting the constitutionality of the trial.

In 1995 the state of Michigan declared a felony the handling of an absentee ballot that does not belong to the voter or a member of his/her immediate family. (In the 2006 documentary “What’s Going On in Benton Harbor? The Trial of Reverend Pinkney,” the filmmakers demonstrate how easily, under this “gotcha” law, a law-abiding Michigan resident can be made into an unwitting felon.) Three of the four felony charges stemmed from this law, each punishable by up to five years in prison.

Holloway argued that, even if Rev. Pinkney handled absentee ballots, there is no reason to believe he did so with criminal intent. It is not common knowledge that handling an absentee ballot constitutes a crime.

In order to convict Rev. Pinkney, argued Holloway, the prosecution would have to prove that he acted with criminal intent and knew it was illegal to handle an absentee ballot not his own. Holloway also argued that the law itself, being so obscure, constitutes an infringement on the constitutionally guaranteed right to organize politically.

The lawyer for the prosecution conceded much of Holloway’s argument, but insisted that the law was necessary to defend democratic institutions from electoral fraud and, though he agreed that the prosecution had to show criminal intent, interpreted this to mean the accused had to be aware that he was in possession of an absentee ballot.

Holloway and Hall’s second motion stated that African Americans were systematically underrepresented on Berrien County juries. Citing lack of evidence from the county’s jury pool records, Judge Alfred Butzbaugh refused to rule on this motion. On March 13, the opening day of Rev. Pinkney’s retrial, Judge Butzbaugh looked on as Hall and Holloway’s objections were confirmed: The prosecution eliminated the only two African Americans from the jury pool.

Stacking the Deck

Throughout the trial tight security taught jurors that there was much to fear. Judge Butzbaugh locked the courtroom to spectators. As a result, the jurors seemed intimidated by the presence of Rev. Pinkey’s supporters. One juror reported an “illegal” transaction in the parking lot between a witness and one of Rev. Pinkney’s lawyers. It turned out that the lawyer had given him a cigarette!

Detroit civil rights attorneys Timothy Hall and Hugh “Buck” Davis volunteered to be Rev. Pinkney’s defense lawyers in the second trial as a project of the National Lawyers Guild. But despite strong representation,  faced a legal lynching by an all-white jury, a prosecution team determined to get a conviction, and a hostile judge in a company town.

Judge Butzbaugh, a 2003 appointee and good friend of Governor Jennifer Granholm (D), had already demonstrated a clear bias in the first trial, even, in a telling slip, openly instructing the jury to “come back with a conviction” (though he quickly corrected himself, insisting he had meant “come back with a decision”). During the second trial, Butzbaugh’s simmering bias broke out into a rolling boil, as he consistently overruled every objection by the defense.

Despite having two years to gather evidence against Rev. Pinkney, the prosecution presented the weakest case imaginable. In his closing arguments, Buck Davis pointed to the utter lack of fingerprints, DNA or forensic evidence. He denounced the prosecution’s attempts to secure a guilty verdict “on the cheap,” suggesting that the jury “wouldn’t send a dog to the pound” based on the testimony of the prosecution’s key witness.

Prosecuting Attorney Gerald Viganski responded that if the prosecutors had collected and presented all possible evidence (as opposed to none), the trial would have taken months. Viganski urged the jury to vote on the basis of the Rumsfeld doctrine: the absence of evidence is not evidence of absence.

After approximately five hours of deliberation, a question came from the jury: If they were to vote guilty on any of the three counts of handling an absentee ballot, would they have to put a name with the guilty verdict? Clearly, jury members were considering a rotten compromise. But there was no way to assess which, if any, of the three ballots in question Rev. Pinkney had handled. The answer they received was that, yes, they would have to tie a name to the conviction, the jurors determined it was either all or none case.

Though the jury’s question itself implied reasonable doubt, the verdict was handed down twenty minutes later and Rev. Pinkney was found guilty on all counts.

Rev. Pinkney is to be sentenced on May 14. Until that time, he has been tethered and placed under house arrest. As he plans his appeal, he is in dire need of moral and financial support. You can send donations for the legal defense to BANCO, 1940 Union Street, Benton Harbor, MI 49022 or to the organization’s website and make a donation: http://bhbanco.blogspot.com.

ATC 128, May-June 2007