for the Damned
by Edgar J. Steele
'Now, HERE, you see,
it takes all the running
YOU can do, to keep in
the same place. If you
want to get somewhere
else, you must run at
least twice as fast as
- Red Queen to Alice, Ch. 2, Through the
Looking Glass, by Lewis Carroll
December 19, 2001
Round One of the Lonny Rae thought crime trial is over after a quick, two-day
jury trial in this sleepy backwoods town in Southwestern Idaho. The
thought police lost...this time. The next time it could be very
different, depending upon the parties involved and the circumstances.
Lonny Rae was acquitted of a charge
of Malicious Harassment (the formal title of Idaho's "hate crime"
law), by a jury that saw no racial animus in the slur that he flung at the
back of the hulking black man he had just seen mauling his wife.
Now, for the bad news.
That same jury found Lonny Rae guilty of assault, a misdemeanor (the hate
crime charge was a felony for which the maximum penalty was 5 years).
The black man, as many know, has never been charged with any crime for
attacking Lonny's wife. The double standard for treatment of whites and
blacks by the American judicial system continues.
We will file a post-trial motion to
set aside the verdict, of course, which District Court judge Stephen
Drescher almost certainly will deny. We will then move on to a direct
appeal of the conviction. This is more than a routine move by a
disgruntled defendant, however, as it highlights yet another extraordinary and
unusual twist in a case that was already noteworthy in many respects.
The appeal also will be unusual
because such an appeal is rarely taken, if ever, in view of the fact that the
penalty for simple misdemeanor assault reasonably can be expected to amount
to nothing more than a brief period of unsupervised probation. This sort
of appeal can be taken when your lawyer works for free or if you have
unlimited financial resources, both of which are out of reach for the
vast majority of Americans, particularly those charged with these
I undertook the pro bono
representation of Lonny Rae because I see this as a case vitally important to
the rest of us, not just for the First Amendment issue involved, but
also because of the double standard employed against white people when blacks
are involved in a lawsuit. As I said to the jury during closing argument
yesterday: "Why are white people treated one way for saying the
word 'nigger,' when blacks are treated completely differently? It quite
simply isn't fair."
Now, here's the real kicker: Lonny
Rae was never charged with the crime for which he was convicted!
That's right. You didn't read it wrong. Assault was never
mentioned in the original complaint and it was never mentioned during the
trial. We didn't prepare to deflect an assault charge and we never
put on evidence designed to acquit Lonny Rae of that charge.
Unlike a civil trial, for which
lawyers file proposed jury instructions days in advance, instructions which
conclusively outline the legal parameters of a case, a criminal trial sees
them prepared and reviewed at or near the end of the presentation of evidence,
just before the jury is "given" the case to decide. Jury
instructions always include the actual charges against a defendant.
After we rested our defense of Lonny
Rae, the judge sent the jury to the jury room and then gave copies of the jury
instructions he had prepared to both the Adams County Prosecutor, Myron
Gabbert, and myself. I was stunned to see instructions for both assault
and disturbing the peace, listed as what is commonly called
"lesser-included offenses." The prosecutor was as surprised as
was I. "But, judge," I objected, "my client was never
charged with these offenses and neither is a logical subset of the actual
charge." Judge Drescher disagreed and overruled my objection,
setting the stage for the appeal that we will now prepare.
Here are examples of lesser included
offenses: negligent driving (for reckless driving), manslaughter (for
murder), assault (for battery). Idaho's hate crime law has been little
used since its adoption and not at all examined on appeal, certainly not
regarding the issue as to whether there are any lesser-included offenses.
Our belief all through this case has been that Lonny Rae was either guilty as
charged or innocent, nothing in between. Having the alternative dropped
on us after we had completed the case was a bombshell that I never could have
Even when charges logically have
lesser-included offenses, it is virtually always up to the prosecutor to
insist upon their inclusion at trial, and the defense is well aware of their
existence so that a case can be prepared against them. It is virtually
unheard of for a judge to include them on his own motion, and certainly never
at the last moment, as in this case.
That is as far as I can go in a
public statement about the judge's actions. I can tell you what happened
and I can tell you what I understand to be the general practice. To
criticize the judge or find fault with his actions and decisions could cost me
my law license (don't you just love the legal system?).
Here's the relevant portion of the
Malicious Prosecution jury instruction: (To find Lonny Rae guilty, you
must conclude that he) "...maliciously and specifically intended to
intimidate or harass Kenneth Manley because of his race or color, by means
of...threatening by word or act (to physically injure Kenneth Manley) and that
Kenneth Manley had reasonable cause to believe that (such injury) would
occur." (Instruction 12, Idaho v. Rae, CR-00-2906)
Here's the Assault jury instruction:
"An 'assault' is committed when a person (1) unlawfully attempts, with
apparent ability, to commit a violent injury on the person of another; or (2)
intentionally and unlawfully threatens by word or act to do violence to the
person of another, with an apparent ability to do so, and does some act which
creates a well-founded fear in the other person that such violence is
imminent." (Instruction 14, Idaho v. Rae, CR-00-2906)
That word "imminent," in
and of itself makes these two charges vitally different and not cut of the
same cloth. Timing, as they say, is everything. There are other
differences between the two charges to preclude one being treated as a
lesser-included offense contained within the other ("violence"
versus "harass," for example), but the timing business is more than
sufficient to carry the day, in my opinion.
The members of the jury were
rightfully confused, because they had not just seen a case about assault
tried before them, but rather one concerning malicious harassment. The
easy proof of their confusion can be seen in their request, during
deliberations, to be provided the definition of the word,
"imminent," which is found only in the assault jury instruction.
The judge gave them the Black's Law Dictionary definition. I, of course,
had seen no need to develop the concept for them during the presentation of
evidence, and was able to make only a passing reference to it in closing
The law on assault is well developed,
unlike that for malicious harassment. There are literally volumes of
cases taken up on appeal concerning just the meaning of the word
"imminent," and for good reason.
In the incident that gave rise to the
trial, after Kenneth Manley left the scene and entered a building, followed by
two or three others, and departed down some stairs and a hallway, Lonny Rae
charged up to the still-open door to that building and said, "Tell that
nigger to get back out here, 'cuz I'm a gonna kick his butt."
He obviously wasn't even talking to
Manley ("tell that nigger..."), so this was no real threat.
Furthermore, to deliver on his words, it was necessary for Manley to do
something ("get back out here..."), therefore there was no
possibility of delivering the promised action since it was contingent upon
Manley's cooperation. That interceding action which was necessary from
Manley in itself destroyed any possibility of the "imminent"
butt-kicking that Lonny Rae had mentioned.
So, quite aside from the propriety of
using assault as a lesser-included offense for malicious harassment, the jury
really should never have concluded that Lonny Rae was even guilty of assault.
Of course, had we known that was the case we had to put on, things very
likely would have been different.
It's kind of like playing a game of
Monopoly all the way to the end, strictly according to the rules, then finding
that the game being played really was Sorry, and having the rules changed
so that the result is different from that toward which you have been
diligently working. It just isn't fair.
I quickly went through a copy of
Carroll's "Through the Looking Glass," to find a reference to the
playing cards painting the roses red, because the queen had changed her mind,
but settled for the quote I opened this essay with, instead. It seems as
You have got to wonder just what is
going on in this case.
Regardless, it is far from over.
I will not rest until I have done everything in my power to see that
Lonny Rae walks away from this incident free of charges and penalties.
Nor will I rest until I have done everything in my power to see that Kenneth
Manley suffers for the unprovoked assault and battery he committed on
Incidentally, just before trial we
developed evidence that Manley had been suspended by another football league
from being a referee for a violent interchange between himself and others, an
interchange which he provoked. In that case, as well, Manley
claimed that others hurled racial slurs at him, which many witnesses then
stepped forward to prove being false. On the stand during this trial,
and before we let him know we had this evidence in hand, Manley denied ever
having been involved in anything like this. It was far from the only lie
we caught him in. But that's a story for another day.
Earlier today, I was discussing Lonny Rae's trial
with another attorney and remarked that, ever since I dared to defend the
Aryan Nations' First Amendment rights (and those of all the rest of us) in
that trumped-up trial brought by Morris Dees and his
ever-so-politically-correct Southern "Poverty" Law Center, it seemed
that every time I now go into court, regardless of the case or the client, it
is as though I have one arm tied behind my back.
For a while I was confused, then
angry. Now, it has turned into a quiet kind of seething that has me
arrogantly resolved always to believe it is okay, since it just evens the
odds and makes it a fair fight.
It's not for nothing that I have acceded to being labeled
"Attorney for the Damned."
We are in the formative stages of establishing the Patriot Civil
Liberties Union (PCLU). While donations are not yet tax deductible, we
gratefully encourage and accept them so that we can continue to handle
cases like Lonny Rae's, cases which are so vitally important to those of us
concerned with the tidal wave of political correctness now washing over
America. Please help.
Donations may be mailed to PCLU, PO Box 1255, Sagle, Idaho
83860. You may also donate via credit card by logging on to paypal.com
(joining it is quick, easy and free), then directing that funds be sent to email@example.com
earmarked for PCLU.
Consider it an investment in legal insurance. You could be in
Lonny Rae's shoes next.
"I didn't say it would be easy. I just said it
would be the truth."
Copyright © Edgar J. Steele,
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