Justice in Berrien County, Michigan, took a big step backwards into the darkness of fear and bigotry on March 21, 2007 when an all-white jury convicted a Black community activist, Rev. Edward Pinkney, of five counts of improprieties in connection with a 2005 recall election of the City of Benton Harbor's most powerful Commissioner.
Benton Harbor is 94% Black, 90% poor and 70% unemployed. It is across the river from affluent and practically all-white St. Joseph, Michigan, the world headquarters of the Whirlpool Corporation. Benton Harbor was once a prosperous industrial town. But as industrial stagnation and flight gripped the area and the Lake Michigan coastline was dominated by tourism, Benton Harbor was drained of economic vitality. Its citizens are unwelcome in other parts of the county and the criminal justice system operates to imprison, control and marginalize them.
Pinkney became known as the leader of the community based on his almost daily presence at the Berrien County Courthouse. He exposed the racism of the criminal justice system and the willful inadequacy of the defense provided to the poor (mostly) Black defendants. He picketed the Courthouse, openly naming individuals involved in corrupt and racist practices. When the police killing of a young Black man erupted into an outburst of rebellious anger, Pinkney helped keep the peace. Public officials poured in and made promises, but nothing was done for the community.
The transition of Berrien County from an industrial to a tourist, real estate and service-based economy increasingly isolated Benton Harbor, a city that sits on valuable real estate on the St. Joseph River. The former CEO of Whirlpool advocated in 2003-4 for a development plan for a $500,000,000 marina/residential/golf course complex which would take 465 acres of Benton Harbor. It would take the City's only beach and pay the City less than a $1,000,000 for the property. Pinkney opposed it because it would do nothing for the poor and would deprive the City of some of its greatest assets. Commissioner Yarbrough was the key local politician supporting the plan.
In 2004, Pinkney and the organization BANCO circulated petitions for a recall election of Yarbrough. Pinkney rallied his church and the BANCO network to get out the absentee vote, winning the recall by 54 votes. Yarbrough went into action. Within days, he "found" a young man named Mancel Williams who alleged that Pinkney paid him $5 to vote for the recall. A week later the same man went to City Commissioner Etta Harper and made a tape recording, indicating that Yarbrough had paid him $10 to claim that Pinkney had paid him $5. The tape was turned over to the Benton Harbor Police, but the Sheriff's investigation did not mention it. Mancel and at least three other witnesses were too frightened to testify for Pinkney.
Brenda Fox, a drug user and prostitute, was interviewed by police working the absentee voter list. She had volunteered to go to the local soup kitchen and recruit 10-15 people for $5 each to pass out election leaflets. She claimed Pinkney told her to pay people $5 to vote against Yarbrough. None of the people who supposedly got paid to vote testified against Pinkney. A number of witnesses contradicted her allegations. Some were given $5 for distributing the flyers. That is perfectly legal.
But Brenda Fox's first job was to testify in a lawsuit filed by the Prosecutor against the City Clerk to set aside the recall election. A local judge, nominated by George Bush to the Federal bench in Western Michigan, ordered a new election. The Clerk lost her job and the next day, the Prosecutor arrested Pinkney for voter fraud. Yarbrough was reinstated.
After the lawsuit, Brenda Fox holed up in her apartment, sending people out to buy drugs and alcohol, indicating that the money had come from testifying. She told one witness, Douglas Bragg, that he was the only one not getting paid to testify against Pinkney, and that she did not have to worry about the police as long as she was testifying. Bragg later saw her get picked up for prostitution by Police and then dropped off 20 minutes later. The Judge refused to let most of that evidence into the trial.
Nonetheless, the all-white jury convicted Pinkney of paying for and influencing votes through Brenda Fox, shocking the audience and arguably surprising even the Prosecutor. Brenda Fox, under questioning by Pinkney's lawyers, had broken down on the stand and could not go on. Hugh [Buck] Davis, one of Pinkney's lawyers, described her as incredible as any witness he had seen in 38 years as a civil rights lawyer. He told the jury, "You couldn't send a dog to the pound on the testimony of Brenda Fox."
The most dangerous charges against Pinkney did not allege buying or influencing votes, but simply having possession of an absentee ballot of a person not a family member or a member of his immediate household. The Michigan Legislature passed this new law in 1995, making handling absentee ballots (even with no bad intent) a five-year felony.
Pinkney denied on the stand that he handled ballots though he gave people stamps to mail their ballots. The defense asked, "If Pinkney was going to take the ballots, why give them stamps?" A motion and brief attacking the statute was filed on grounds that it is unconstitutional, but the Judge denied the motion. This is now one of the major issues on appeal.
Given that they had already set aside the election, put Yarbrough back in office and gotten rid of a Clerk believed to be friendly to Pinkney; the prosecution might have been satisfied. But Pinkney's outspoken opposition to the proposed "Harbor Shores" development meant that he must be removed as a leader.
Pinkney had complained for years about the under-representation of Black jurors in the court system. Frequently, there were none. At a hearing prior to the trial, a Jury Commissioner explained how the Berrien County jury system results in the systematic under-representation of minorities. The Clerk testified that there were six Blacks in the jury pool that very day. However, court-watchers saw the jury panel in the hall. Only two were black (4%). Berrien County is 15.5% Black. Affidavits were filed with Pinkney's Judge, alleging perjury by the Clerk. He ignored them and denied the jury challenge. This will be another major issue on appeal.
There was some hope that liberal sentiments could be aroused in the all-white jury. But the jury was clearly intimidated by the large numbers of Pinkney supporters, most of them poor. The Judge locked the courtroom to spectators once the session began, allowing entry only at breaks. A juror reported that she saw an illegal transaction take place in the parking lot between one of Pinkney's lawyers and one of his witnesses (the lawyer gave him a cigarette). Security was increasingly beefed up. The effect was to make jurors even more afraid and suspicious of Blacks in Benton Harbor and of Pinkney and his supporters. As it was in the South, a Black man's word meant nothing, regardless of how obviously false and fabricated the evidence against him.
But it should also be pointed out that these jurors were ordinary working class and middle class whites, themselves on the edge of economic insecurity. As the economy of Michigan continues to decline, they needed to believe that what has happened to Benton Harbor will not happen to them. They needed to believe that what is good for Whirlpool is good for them. They needed to believe that somehow the "Harbor Shores" development for rich people will be good for them. They understand that they are one layoff, one injury or one illness from needing the same social services as the people in Benton Harbor. They failed to understand that health care, education, jobs, and protection of the environment can only be achieved when they unite for the protection of the poorest, as opposed to running away from the horror of life in Benton Harbor.
WHAT YOU CAN DO
Pinkney's sentencing is May 14, 2007 at 1:30 p.m. Everyone is encouraged to attend! The defense would like a big showing.
Address letters of support to: The Honorable Alfred M. Butzbaugh, Berrien County Circuit Court, but send the letters to Hugh M. Davis, Constitutional Litigation Associates, P.C., 450 West Fort Street, Suite 450, Detroit, Michigan, 48226 or email: conlitpc@sbcglobal.net. The purpose is not to accuse the Judge, Prosecutor or even the jury of being racist, but to point out how suspicious it is that an all-white jury sit in judgment of a Black community activist, 50 years after the civil rights movement. Emphasize Rev. Pinkney's work, how important it is that we have dissident voices and that free speech be protected. Also, that no matter what one may think of the evidence, the worst that he did was innocently handle some ballots and become the victim of the testimony of some shady characters, particularly Brenda Fox. Let the Judge know you believe that Rev. Pinkney should not be required to serve even a short sentence when these serious issues are still undecided on appeal. Since the Judge's decisions are being appealed, he should not refuse bond.
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