Attorney 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 that!'
     - Red Queen to Alice, Ch. 2, Through the
         Looking Glass, by Lewis Carroll
  
December 19, 2001
 
Payette, Idaho.     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 "crimes." 
 
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 expected.
 
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 argument.
 
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 appropriate.
 
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 Lonny's wife.
 
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 donate@pclu.org earmarked for PCLU. 
 
Consider it an investment in legal insurance.  You could be in Lonny Rae's shoes next.


-ed

"I didn't say it would be easy.  I just said it would be the truth."
            - Morpheus

Copyright © Edgar J. Steele, 2002

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