Guilty of Honor

 

February 15, 2002

 

Lonny Rae is a proud man – a stiff-necked man, if you will.  Tradition means something to Lonny; in fact, it means a lot.  And he loves his wife.  He meant it when he said “I do,” many years ago.  He still does.

 

So when, from a distance, Lonny heard her cry for help, then turned and saw the huge black man attacking – physically attacking – Kim, he saw red.  Lonny’s first concern was for her safety, so he made sure she wasn’t seriously injured as he ran up.  Then, and only then, did he turn and stomp up to the building that the man had disappeared into, along with his two friends. 

 

Now, Lonny is brave – nobody disputes that.  But he isn’t stupid.  He made sure the hulking black guy who had just grabbed Kim from behind and been choking her while trying to rip off her camera was safely out of reach before he said it. 

 

If push came to shove, Lonny would do the right thing and take a beating.  But, somehow, he knew that wasn’t going to happen.  So, like the cock of the walk that he wanted Kim to see, through the open door Lonny shouted out:  “Tell that n***** to git out here, ‘cuz I’m a gonna kick his butt!” 

 

The moment stretched on for an eternity.

 

Lonny stood there, red faced and angry.  Finally, he turned to Kim and said, “Let’s get out of here.” 

 

Kim rubbed her aching neck where, already, the angry red was forming and smiled at Lonny, glad to be married to a man that would stand up for her.  Stand against another man a half-foot taller and half again Lonny’s weight.  Stand ready to take on the world for her sake, it seemed.  How she loved him in that moment.

 

Shaking from the shock of her brush with violence, Kim called the police on a nearby pay phone and, just a few minutes later, an officer drove up to deal with things.

 

Later, Lonny took Kim to the hospital, where a doctor treated her injuries and released her with prescriptions for several drugs. 

 

A day or two afterwards, when Kim was feeling better, they sought out the city prosecutor, to make sure that Kim’s attacker was brought up on charges.

 

Several months later, the defendant answered the felony complaint which had been lodged against him: “Not guilty, your honor.”  And he faced the possibility of five years’ long hard time.  Five years to think about what he had done wrong.  Five years to contemplate how he could have handled things differently.

 

Problem is, the defendant was Lonny.

 

_______________________________________

 

This is the promised in-depth treatment of the Lonny Rae case, possible now that sentence has been passed and his case is moving into the appellate courts of Idaho.

I often get the comment that I must be leaving something out of the Lonny Rae story...that I must be acting the advocate and shading the truth or actively misrepresenting what has occurred in this case.  Not true.  This article is about as in depth as I care to get about any case.  It presents the facts, undisputed at trial except where noted.  I provide you the actual language from motions we have filed and the actual wording of the statutes involved.  Nothing has been left out.

Facts

Lonny Rae was attending a high school football game in Council, a small town in Southern Idaho, last October with his wife Kimberly, staff reporter/photographer for the local newspaper, the Adams County Record. Admitted on her press pass and camera in hand, she had been assigned to cover the game.

Bitterly contested, only the victor of the game would advance to the state playoffs.

Assigned out of Boise as last-minute substitutes for the regular officials, the three referees were accustomed to calling games for schools with much larger student bodies and more highly-evolved football programs. Council and its opponent, truth be told, had trouble putting enough boys in uniform to field full teams.

The referees called the game as they usually would, resulting in an extremely high number of fouls on both sides of the field. The crowd began to boo the officials as the game wore on and, when the final whistle blew, Council had lost by a touchdown. The hometown crowd was not pleased.

Knowing the real story of the game to be the officiating, Mrs. Rae started toward the locker room building in hopes of getting a picture to go with her story. As the referees jogged by, she asked to take their picture, getting no response other than a chuckle as they entered to shower and change clothes. Still hopeful, Mrs. Rae continued toward the building when the referees came out again. She lifted her camera and snapped one shot before the official in front told her not to. Shrugging, she turned and walked toward the parking lot, where her husband waited, standing next to their car.

 
 
     This is the snapshot
     of Kenneth Manley
     that started it all.
 
 
 

 

 

 

 

 

 

 

Suddenly, Kimberly Rae was seized from behind and dragged backward by one of the referees as he groped for the camera, demanding that she turn it over to him. The strap on the camera denied him possession as it bit into her neck, raising an angry red welt. Mrs. Rae cried out for help to her husband, who looked up in horror to see his wife being mauled.

 

 

 

 

 

 

The red rash that Lonny's wife received when Manley held her while trying to take her camera.    (Photo taken by investigating officer.)

 

 

 

 

 

As Lonny Rae ran up, the referee, Kenneth Manley of Boise, Idaho, released hold of Mrs. Rae, then grabbed her again as the camera enticingly swung within his reach. Manley, a black male standing 6'3" and weighing upwards of 250 pounds, towered over the 5'3" Kimberly Rae. Mr. Rae shoved Manley back, swearing and shouting at him to leave his wife alone.

The referees trooped back into the building with a school official that had just come on the scene and, after seeing that his wife was not grievously injured, Lonny Rae marched up to the building's entrance, shouting out, "Tell that n------ to get out here, 'cuz I'm a gonna kick his butt." (Note:  if ever there were a context within which it should be acceptable to use the "N" word, this is it, however I do not do so solely because so many Internet ISPs filter and block anything containing that and other politically-incorrect language.  I would prefer that this story get out, which is the only reason that I bow to this convention.)

 

 

 

 

    This door was open that cold night in October 2000 when Lonny Rae stood just outside and vented his anger.

 

 

 

 

 

 

 

 

 

 

 

The stairwell down which Lonny Rae flung his challenge. The locker room where Manley was at the time is through the left opening at the base of the stairs and down the hall, well out of sight.

 
 

 

 

 

Getting no response, the Raes went to a nearby pay phone and dialed 911, then waited for the police. They demanded that the black referee be charged with criminal assault and battery.

Later, Rae took his wife to the hospital, where a doctor treated her injuries and released her with prescriptions for several drugs.

A day or two afterwards, when Mrs. Rae was feeling better, they sought out the city prosecutor, to ensure that her attacker was brought up on charges.  He never was, and no adequate reason has ever been given.  

Not long after the altercation, the Idaho Athletic Association, which had assigned the referees to the game, placed Council High School on a year's probation. The reason given: the officials had suffered "fan abuse" because the locker room wasn't unlocked when they first went into the building to take a shower. Another incident and no more referees would be provided, thereby effectively ending the school's football program until the ban was lifted.

Then the local school board barred both the Raes from the school grounds for a year, though their two daughters were then enrolled.

Then Lonny Rae was charged by the town prosecutor with violating Idaho's so-called "hate crime" statute for "Malicious Harassment."

 

 

 

   Council - The Community that Cares.

 

 

 

 

Media from the surrounding area converged on the town to cover the "hate crime."  Predictably, they sensationalized the event, painting Lonny Rae as a racist and a bully.

After several angry editorials and letters to the editor, denouncing the Raes for having put the town's football team in jeopardy, Kimberly learned that the paper's advertisers were threatening to pull out if she remained on staff. She was called in by her superior, who reluctantly let her go.

Lonny's contract work ended and, with winter setting in, he was unable to land another job in the area, the economy of which was already suffering from the closure of several nearby lumber mills.

Out one evening, a local ruffian reproached Kimberly for having gotten their football team "in trouble." Lonny intervened, one thing led to another and a fistfight ensued, with Lonny getting a broken ankle for his trouble. The media again picked up the story and sensationalized it, claiming that it was Rae who had broken the other man's foot! Lonny pled out to a charge of disturbing the peace, the same as the other fellow who broke Lonny's ankle.

The day before his criminal trial was to begin on the "hate crime" (in another county, following a change of venue), Rae learned that prosecution of his case had been handed over by the city to the Adams County Prosecutor so that the charge against him could be elevated to a full felony, with trial before a District Judge, rather than just a local magistrate. Instead of a simple misdemeanor for what amounted to disturbing the peace, Lonny Rae now faced the possibility of five years’ long hard time in the penitentiary, and several months' more delay. The new judge revoked the change of venue, deciding instead to merely delay the criminal trial a few more months. Now Lonny would face a jury made up from the local townspeople.

Denied work at every turn, the Raes and their daughters were evicted from the trailer home they had been making payments on until their money ran out, thereby losing the equity they had built up.

Unable to get work locally and with the entire region turning against them for their "hate crime," the Raes packed their possessions and children and applied for work elsewhere, both of them eventually securing low-paying jobs in northern Idaho, where they settled with their daughters near Sandpoint, just north of Coeur d' Alene, and not far from the recent McGuckin children's so-called "standoff" with county authorities.

Among their new neighbors in Sagle was my family.  I agreed to take Lonny Rae's case pro bono, meaning for no payment, because I think it is an important case and the Raes good people who deserved far better than the system had given them of late.

I said at the time: "This is another clear case of local government run amuck, just as with so many other recent Idaho cases that have achieved national profiles. Lonny Rae is being sacrificed on the altar of political correctness, so that Idaho can be seen as the so-called 'Human Rights State,' and to counter recent negative publicity garnered from the McGuckin, Aryan Nations and Ruby Ridge affairs."

Speaking specifically of the charge pending against Lonny Rae, I have been quoted as saying, "These hate crime statutes generally have been deemed not to violate the First Amendment's guarantee of free speech. However, some actual criminal act in conjunction with the hate speech is required before one can be charged. We haven't yet reached the point of criminalizing mere speech or thought. Today, the Adams County Thought Police have applied Idaho's little-used Malicious Harassment statute in such a way as to achieve that very result in Lonny Rae's case. Thus, while the statute may be constitutional, its usage by the Adams County Thought Police is clearly unconstitutional and an affront to all who value the right to speak their mind without fear of government interference."

I have also noted, "What Lonny Rae said to Kenneth Manley that cold night last October wasn't right, but it wasn't criminal. And, given what Manley had just done to Mr. Rae's wife, one could understand his state of mind. I'm not sure which is worse: the fact that Manley was never charged with assault and battery or the fact that the Adams County Thought Police want to put Lonny Rae in prison for five years for defending his wife."

Though Lonny Rae eventually was to be acquitted on the hate crime charge, he has been sentenced to serve time for misdemeanor assault.  The jury thought he was guilty of something, obviously.  So do I.  Lonny Rae was guilty of honor - nothing more.  Can any man say that he would have acted any differently in Lonny Rae's place?  And, to this day, Manley has never been charged for mauling Lonny's wife.

Pre-Trial Motions

Before going to trial, a number of motions were made:  for a change of venue, for advancement of expert witness fees and for outright dismissal.

Change of Venue.  There were many reasons why Lonny Rae couldn't get a fair trial in Council, where the incident took place.  When the referee was never charged with assault and battery (and never has been charged by the authorities), yet Lonny was booked for a violation of Idaho's Malicious Harassment statute (the hate crime law), the media from nearby Boise went into an orgy, covering the "racist" Lonny Rae both in print and on TV.  Lonny never again got work in the area due to his notoriety.
 
Even the local newspaper, the Adams County Record, got in on the act, eventually referring to Lonny's wife as "the antichrist."  Yes, that is the same newspaper that had assigned her to cover the football game in the first place.  And, yes that is the same newspaper that fired her when advertisers threatened to pull their ads if she remained on staff.
 
And Kim had annoyed members of the local school board with her newspaper accounts of their shenanigans in the past.  The school board slapped a one-year suspension on both Lonny and Kim when they learned of the referees' association action, saying that neither could come on school grounds during the coming year.  This proved a loud justification for local condemnation of both Lonny and Kim, since the high school football program is so important to Council, a perennial contender for state championship honors. 
 
They claim it was just coincidental that Lonny got charged only a day or so after the referees' association placed the football program on probation.  Feelings were running pretty high; high enough such that Lonny and Kim got accosted by that local ruffian one night, as recounted above.  Lonny mixed it up with the fellow because the object of his ire was actually Kim.  Ironically, Lonny once again took it on the chin (shin, actually) while defending her honor.
 
There is a strong suggestion that the prosecution of Lonny Rae was politically motivated and in retribution for things having nothing to do with what Lonny said that night in October 2000.
 
Judge Steven Drescher rides the circuit and hears cases in Council infrequently, so it was easy for him to reconsider his earlier denial of a change of venue for Lonny's "hate-crime" trial.  Judge Drescher simply decided to bring it home to Payette County, where he normally holds court.  Problem is, that was actually closer to Boise, the source of all the media disinformation.  Rae had sought a move to a distant county where there had been no pretrial publicity.
 
Motion for Payment of Expert Witnesses.  Though Lonny and his wife easily met the definition of indigent for purposes of qualifying for court-paid lawyers, trial expenses and experts, Judge Drescher denied Lonny's motion to be advanced costs to hire the experts he needed.  Lonny, his wife and their two daughters lost their home after they both were put out of work over this affair.  Lonny has since found employment at a low-paying job in northern Idaho, but is barely able to provide his family's modest basic needs.   This family has proudly refused to resort to public assistance.
 
Lonny could have used a psychiatrist to testify that he was at the mercy of powerful emotions when he said what he did, thus should not be held accountable - a sort of "temporary insanity."  He also would have benefited from the services of a sociologist who could have advised the jury that the word "n*****" has gone into the vernacular to such a degree that its usage is commonplace virtually everywhere
 
Motion for Dismissal.  The judge also ruled against Lonny's companion motion for outright dismissal on a number of counts, the centerpiece of which was a constitutional challenge to Idaho's "hate crime" law on equal protection grounds.  We argued that the law, the language of which applies equally to all citizens, is employed only against white people, thereby elevating minorities to a special class, which denies white people equal protection under the Constitution.  The judge disagreed, despite all the other "hate crime" cases around the country, all of which involve some sort of genuine injury inflicted - and all of which have white men as the defendant. 
 
Remember the Seattle "Mardis Gras" riots a year ago?  Remember the gangs of marauding blacks who did so much damage and assaulted so many white people?  Remember the woman being held down and sexually assaulted by one such gang?  Remember the white guy who came to her aid and was killed for his trouble?  Know how many "hate crime" prosecutions resulted from that night's orgy of crime?  Exactly one.  Guess what color the defendant is.....yep - he's white. 
 
It is now actually taught in public high school Social Studies classes that only white people can be guilty of hate crimes, since white people are the ones who have oppressed minorities for so long.  That's not the way the laws read, but that sure is the way they are applied.  Just ask Lonny Rae.
 
In addition to running afoul of the US Constitution, we argued that the statute violates the Equal Protection Clause of the Idaho Constitution due to the unequal protection and benefit of the law afforded persons on the basis of their “…race, color, ancestry, religion or national origin…”  (I.C. §18-7901) by §18-7902 of the Idaho Code ("Malicious Harassment," the hate crime law in Idaho.)  That statute  reads as follows:
 

It shall be unlawful for any person, maliciously and with the specific intent to intimidate or harass another person because of that person’s race, color, religion, ancestry, or national origin, to:  (a) Cause physical injury to another person; or (b) Damage, destroy, or deface any real or personal property of another person; or (c) Threaten, by work or act, to do the acts prohibited if there is reasonable cause to believe that any of the acts prohibited if there is reasonable cause to believe that any of the acts described in subsections (a) and (b) of this section will occur.  For purposes of this section, “deface” shall include, but not be limited to, cross-burnings or the placing of any word or symbol commonly associated with racial, religious or ethnic terrorism on the property of another person without his or her permission.

 
Here is how we argued the motion to dismiss to the court:
   "Meisner v. Potlatch Corp., 131 Idaho 258, 954 P.2d 676 (1998) sets forth the analysis to apply to equal protection challenges under both the Idaho and United States Constitutions.  For equal protection challenges to statutes under the United States Constitution, three levels of scrutiny are used.  These are strict scrutiny, intermediate scrutiny, and rational basis.  See id. At 261, 954 P.2d at 679 (citing City of Cleburne v. Cleburne Living Ctr.,  473 U.S. 432,439-42 (1985)).  The Court in Meisner stated that the analysis of equal protection claims under the Idaho Constitution is very similar.  “Three standards of equal protection analysis have been recognized in Idaho:  strict scrutiny, means-focus, and rational basis.” Id. (citing Leliefeld v. Johnson, 104 Idaho 357, 373, 659 P.2d 111, 127 (1983)).
 
   "The statute under which the defendant is charged (I.C. § 18-7902) in this case provides unequal protection from “…fear, intimidation, harassment, and physical harm…” (I.C. §18-7901) based on “…race, color, ancestry, religion or national origin…” (Id.).  Therefore, strict scrutiny is the appropriate analysis for the court to employ in deciding defendant’s motion to dismiss, and the State is required to “prove that it has a compelling interest which justifies the classification and that the discrimination is necessary to promote that interest.”  State v. Rogerson, 132 Idaho 53, 56, 966 P.2d 53, 56 (1998).
 
   “The legislature finds and declares that it is the right of every person regardless of race, color, ancestry, religion or national origin, to be secure and protected from fear, intimidation, harassment, and physical harm caused by the activities of groups and individuals” (I.C. §18-7901).  That finding articulates the compelling interest asserted by the state.  The incident precipitating the charge in this case provides an excellent set of facts for the analysis of the discrimination resulting from the law.
 
    "The defendant’s wife, a reporter for the local newspaper took a photograph as three officials emerged from the locker room entrance at the high school in Council, Idaho.  During the confrontation between the defendant’s wife, the official referred to the defendant’s wife as a “bitch” while attempting to take her camera away from her.  Had the official referred to her as a “white bitch,” he could have been charged with a felony.  However, because he used a gender slur as opposed to a racial slur, the protection afforded the defendant’s wife from intimidation and harassment by the official was minimal.  Had the prosecutor elected to charge the official, he would have been limited to a misdemeanor.
 
   "The defendant, responding to his wife’s call for help, joined the confrontation, and during that confrontation, used a racial slur with reference to the official who had attempted to take his wife’s camera away from her.  Everyone else involved in the confrontation, depending on which version of the facts the prosecutor elected to believe, could have been charged with nothing more than a misdemeanor.  If the state’s view of the facts is taken as true, the defendant’s use of the racial slur and nothing else converted his offense from a misdemeanor to a felony.  In this case, because of the official’s race and color, he was afforded far greater protection of the law than was the defendant’s wife or her husband.
 
    "Where “it is the right of every person, “regardless of race, color, ancestry, religion or national origin, to be secure and protected from fear, intimidation, harassment, and physical harm caused by the activities of groups and individuals” (I.C. §18-7901), the state cannot justify a law that, based on the race and color of one person involved in a confrontation, affords that person far greater protection of the law than it does others involved in the same confrontation.  Where every person has the right “to be secure and protected from fear, intimidation, harassment, and physical harm caused by the activities of groups and individuals” (id.), a law which uses race, color, ancestry, religion, or national origin, to determine how much security and protection from fear a person is afforded violates the equal protection clauses of Article 1, §1 of the Idaho Constitution, and Fourteenth Amendment to the Constitution of the United States."
We also argued that the statute was fatally vague, ambiguous and overbroad.  However the judge was not impressed with our observation that a statute susceptible of being applied in an arbitrary and capricious manner, as was the one in the instant case, is by definition vague, ambiguous and overbroad.
 
Nor was the judge persuaded that the First Amendment's guarantee of free speech should be available to provide Lonny Rae cover in this case, despite our best efforts to persuade him otherwise.  Other arguments, similarly, fell on deaf ears:

     "...the statute is applied arbitrarily, as in the instant case, since only white people who use the word “n*****” are ever charged, despite the free usage of such a word by black people in all venues of life.  This arbitrary application of the statute renders it unconstitutionally vague.

 

     "Furthermore, the statute is discriminatorily applied in the instant case, since its usage against Mr. Rae is specifically in retaliation for the perception that Mr. and Mrs. Rae caused Council High School to be placed on probation by the referees’ association.  Defendant alleges that the charge has also been levied in retaliation for his wife’s past reporting of the behavior of various Council City and Adams County officials.  This discriminatory application of the statute in this case renders it unconstitutionally vague and therefore void on its face as applied to Mr. Rae."

We also attacked the application of the hate crime statute to this situation, all to no avail:

   "There was no “reasonable cause to believe that” a threat “to cause physical injury to another person” had been delivered by Mr. Rae to Mr. Manley.  First of all, the “threat” by its very terms was delivered to another.  “Tell that n***** to get out here…” necessary implies that Mr. Rae was speaking to another; Mr. Manley was the only black person around, therefore the “threat” clearly was not directed to Mr. Manley, thereby taking Mr. Rae out of the statute’s ambit. 

     "Furthermore, the “threat” was conditional in nature.  “Tell that n***** to get out here, ‘cuz I’m a gonna kick his butt.”  It was necessary for the “threat” to be communicated onward, then for Mr. Manley to perform an affirmative act (to “come out here”), in order for the threat to become reasonably actionable.  “If he comes out here, then I’ll kick his butt” is a very different creature from “I’m going to kick your butt right here and right now,” which is the threat that the State endeavors to bootstrap Mr. Rae’s conduct into becoming.  Manley had to accept an invitation, at best.  At the preliminary hearing, Mr. Manley acknowledged that he saw the “threat” as conditional when he stated that he had to be restrained from going back outside to take Mr. Rae up on his offer.  A threat conditional upon the action of the one thereby “threatened” is, in reality, no threat whatsoever.  Since  the outcome was entirely within Mr. Manley’s control, it is apparent that Mr. Rae presented no real danger; therefore, Mr. Manley’s claim to have been either intimidated or harassed is entirely incredible.

 

     "Furthermore, the statute requires one to “maliciously and with the specific intent to intimidate or harass another person because of that person’s race...”  One cannot infer intent from the mere doing of an act.  In the instant case, there has been extensive evidence presented that Mr. Rae intended to defend his wife and retrieve a measure of the honor that he perceived had been taken from her by Mr. Manley.  There has been no evidence whatsoever that Mr. Rae intended to annoy Mr. Manley because of his race.  The hurling of a racial epithet in and of itself does not bespeak an intent to “intimidate or harass.”  In this case, it merely indicates Mr. Rae’s intent to salvage self respect and protect his wife.  The way that Mr. Rae used the word “nigger” that cold night last October may not have been right, or even particularly admirable, but it wasn’t criminal.

 

     "The charging statute delineates what is known as a “specific intent” crime.  Even if Mr. Rae were mistaken about what was occurring, which he was not, and even if that mistake were unreasonable, which it was not, an unreasonable mistake of fact is sufficient to negate the specific intent element of the statute charged herein.  His intent was to defend, not to harass, whether or not Mr. Manley was the initial aggressor, which even Mr. Manley acknowledges."

We also argued that Lonny Rae’s actions and words, as charged under the statute, were privileged under the law, inasmuch as they took place in defense of another, his wife, who was being assaulted by the complaining witness, Kenneth Manley. 

 

At Lonny Rae's preliminary hearing, Manley acknowledged having laid hands upon Mrs. Rae when he “grabbed” the camera that she held.  Even if events then transpired precisely as he claimed (that the 5’3” Kimberly Rae physically threw the 6’3”, 230# Kenneth Manley against a vehicle, while holding onto her camera), her action was justified in response to the illegal touching initiated by Mr. Manley. 

 

Any ongoing physical contact was merely an extension of the initial assault and battery by Mr. Manley against Mrs. Rae, and which he acknowledged.  Mr. Rae was entirely within his rights to use reasonable force, including words, in defending his wife.  In view of the disparate size differential between Mr. Manley and Mr. Rae (one-half foot height and 50 pounds), it is not surprising that it was words that Mr. Rae resorted to.  Intemperate he may be, but he is not stupid.  

 

Needless to say, the judge was not persuaded that Lonny Rae's conduct and words were privileged and therefore not susceptible of prosecution.

 

Then we tried to explain that Lonny Rae’s actions and words were excusable under the law by the doctrine of diminished capacity because they occurred during the heat of the moment, while he was in the grip of overwhelming passion, generated by substantial and overpowering provocation from the complaining witness, Kenneth Manley, who Mr. Rae had reasonably believed he saw assaulting his wife, a woman half Mr. Manley’s size.  As a result of a mental defect induced by the rage he felt when he saw his wife being assaulted by someone twice her size, Mr. Rae simply did not possess the specific intent required by the statute with which he is charged. 

 

The judge simply did not agree that the aforedescribed defect resulted in a diminished capacity by Mr. Rae to appreciate the wrongfulness of his conduct and to conform the wrongfulness of his conduct to the law, the standard employed in evaluating a diminished capacity defense.

 
The Trial.
 
Lonny Rae's trial was over after a quick two days in the sleepy backwoods town of Payette, in Southwestern Idaho.
 
Witnesses include the three referees, Kimberley Rae and an assortment of local officials.
 
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.
 
Rae was acquitted of the 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.
 
However, the 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, Kenneth Manley, 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.
 
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 well in advance, instructions which conclusively outline the legal parameters of a case, a criminal trial sees them prepared by the judge and reviewed with the lawyers 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 the judge sent the jury to the jury room, just prior to being given the case to decide, Judge Drescher gave copies of the jury instructions he had prepared to both the Adams County Prosecutor, Dan 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 have now filed.
 
The judge overruled our objection to the added charges, rejected our requested additional jury instructions concerning burden of proof and diminished capacity and proceeded to instruct the jury. 
 
On December 18, 2001, the jury found Lonny Rae not guilty on the felony charge, but returned a verdict of guilty on the added charge of assault.  Sentencing was set for February 4, 2001, in Adams County.
 
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 n***** to get back out here, 'cuz I'm a gonna kick his butt."
 
He obviously wasn't even talking to Manley ("tell that n*****..."), 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. 
 
Post-Trial Motions
 
We filed a post-trial motion to set aside the verdict, of course, which Judge Drescher summarily denied.  We objected on the bases of both fundamental fairness and the fact that neither additional charge was a logical subset (lesser-included offense) of the felony charge which had been tried to the jury. 
 
We filed a brief with court which pointed out that, unlike many statutes, IC §18-7902 (the felony "hate crime" law) has no specific provision for a lesser included offense.  Nor did we find any other Idaho statutes which specifically identified themselves as lesser-included offenses of IC §18-7902.
 

Nor did we locate any legislative scheme which could possibly be interpreted to allow the charging of assault or disturbing the peace or, in fact, any other crime as lesser-included offenses contained within the ambit of IC §18-7902.

 

Nor did the terms of the jury instructions given over our objection lend themselves in any way to being characterized as a logical subset of the charging terms of IC §18-7902:

 The Court’s Jury Instruction 14 read as follows:  "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."

 

The Court’s Jury Instruction 17 read in relevant part as follows:  "In order for the defendant to be guilty of Disturbing the Peace, the state must prove each of the following:  (1) On or about October 27, 2000, (2) in the state of Idaho, (3) the defendant Lonny Rae, (4) maliciously and willfully disturbed the peace or quiet of any neighborhood, family or person, (5) by:  (a) by loud or unusual noise, or (b) by tumultuous or offensive conduct, or (c) by threatening, traducing, quarreling, challenging to fight or fighting, or (d) uses any vulgar, profane or indecent language within the presence or hearing of children, in a loud and boisterous manner.

That word "imminent," in and of itself made these two charges vitally different and not cut of the same cloth.  Timing is, as they say, everything.  There are other differences between the two charges to preclude assault being treated as a lesser-included offense - "violence" versus "harass," for example. 

 

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 a definition for the word "imminent," which is found only in the assault jury instruction.  The Court gave them the Black's Law Dictionary definition.  Defendant’s counsel, of course, had seen no need to develop the concept, nor that concerning other differences, for the jury during the presentation of evidence.

 

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.

 

But, there other reasons that assault didn't apply to Lonny Rae's actions that night.  He obviously wasn't even talking to Manley ("tell that n***** to get out here..."), 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.

 

Nor did we see a need to develop many other legal concepts for the jury during presentation of evidence or argument, which would be relevant only to the charges of assault and disturbing the peace, which were added as the case was given to the jury to decide, such as: 

 

1.         Did the defendant’s words constitute obvious bravado, or “puffery,” a recognized defense to a charge of  assault?

2.         Did the physical separation between defendant and Mr. Manley preclude a finding of an “apparent ability” to commit assault?

3.         As mention in passing, supra, did defendant’s words constitute a threat under assault, which is presumably different from a threat under IC §18-7902, or was it mere “fighting words,” which is a sort of offer which requires acceptance from an alleged victim?

 

4.         Was defendant’s conduct malicious or was it justified under the many exceptions carved out by the existing case law concerning assault, none off which were argued to the jury?

 

5.         Was defendant’s conduct “willful,” as required by Jury Instruction 17, and is that really the same as the specific intent mandated under IC §18-7902?

We also argued that it was an error in the exercise of the court’s discretion to add jury instructions for assault and disturbing the peace because it is the job of the executive branch to charge and prosecute, not the judicial: 

     "The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.  Constitution of the State of Idaho, Article II, Distribution of Powers, Section 1.

 

     "In Stockwell v. State, 98 Idaho 797, 573 P.2d 116 (1977), Justice Bistline’s dissent is noteworthy for containing the following observation and citation to a relevant California case:  To the prosecutor falls the initial decision as to whether or not a person should be prosecuted and, if so, on what charges. But once the complaint is filed, prosecutorial discretion is at an end. ‘When the decision to prosecute has been made, the process which leads to acquittal or to sentencing is fundamentally judicial in nature.’  People v. Tenorio, 3 Cal.3d 89, 94, 89 Cal.Rptr. 249, 473 P.2d 993, 996 (1970).”

The prosecutor never charged defendant with anything but felony malicious harassment.  Nor did the prosecutor move to reopen and argue or present evidence concerning the new charges of assault or disturbing the peace, as would have been his right, and is his exclusive perquisite, not the Court’s.

 

In fact, after the trial was over, Dan Gabbert, the prosecutor, told me that he specifically left assault and disturbing the peace out because he didn't want the jury taking the easy way out and nailing Lonny Rae for what amounted to no more than a very minor offense.  He wanted the felony conviction or nothing at all.  He didn't reckon with what the judge wanted, however.

 

Of course, there was still the matter of the applicable statute of limitationsThere is a one-year statute of limitations applicable to all misdemeanor charges in the state of Idaho.  The events out of which this trial evolved took place the night of October 27, 2000.  On December 7, 2000, the Council City Prosecutor charged defendant with a violation of IC §18-7902 (malicious harassment) and IC §18-6409 (disturbing the peace). 

 

On March 5, 2001, the case was handed over to the county prosecutor, who filed an amended complaint, wherein the charge of disturbing the peace was intentionally abandoned and only the violation of IC §18-7902, a felony, remained. 

 

Not until December 18, 2001, more than one year after the incident, was the charge of disturbing the peace resurrected, sua sponte (on its own motion), by Judge Drescher and, for the very first time, the charge of assault, also a misdemeanor, levied against Lonny Rae.

 

Thus, both the charges added by the jury instructions, given over our objections, were barred by the one-year statute of limitations.

 

We also argued that it was an error in the exercise of the court’s discretion to add jury instructions for assault and disturbing the peace because it violated fundamental notions of fair play.

 

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 all but unheard of for a judge to include them on his own motion, and certainly never at the last moment, as in this case.

 

All of these objections, and some from the pretrial motion for dismissal, which was also denied, will be renewed in the impending appeal.

 
The Sentencing Hearing
 
Lonny Rae was sentenced to 7 days in jail on February 4, 2002.

Idaho District Court Judge Stephen Drescher sternly remarked from the bench that Mr. Rae "deserved some retribution" for his conduct and that it was important that "sports officials be protected from unruly bystanders."

I urged the judge to set aside the conviction or, at most, impose no jail time. "This is an important First Amendment case," I said. "Send Mr. Rae to jail and the citizens of America will be afraid to say anything to one another, for fear of being locked up." Judge Drescher was unmoved by this entreaty and by being reminded that the only person injured that night was Mr. Rae's wife.  In fact, his manifest boredom during my argument, reciting the many statutory reasons why no jail time should be imposed, made it clear that I was wasting everybody's time.

Mr. Rae was handcuffed and about to be led away to his cell, when I did manage to persuade the judge to defer the sentence while I appealed the case to the Idaho Supreme Court.   The judge looked as though he had been slapped across the face when I demanded a stay, pending appeal, and advised that I had the appropriate paperwork in hand, ready to be filed.  You see, nobody appeals misdemeanors.  Nobody appeals 7-day jail sentences.  Nobody but me, I guess.

It is particularly telling that Rae was to be taken to jail on the spot.  Always - almost always, that is - when sentenced for something so minor, a defendant is told to go see the Jail Administrator and set up a time to serve his sentence that is convenient with his work and family schedules. 

Not so for those charged with hate crimes, evidently. 

Not so for those of us who are politically incorrect. 

Not so for Lonny Rae, guilty of honor.

We will take this case all the way to the U.S. Supreme Court, if necessary.  It is far too important for all of us to allow this ruling to go unchallenged.

The Appeal
 
The appeal will be unusual because such an appeal is never taken, except 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." 
 

We have filed a preliminary statement of the issues on appeal which we will assert:

 

(a)          Whether defendant should have been charged with a “lesser-included offense,” added by the court, sua sponte, after both sides had rested, or at any point without request by plaintiff.

 

(b)          Whether assault is a lesser-included offense, contained within the charge of felony Malicious Harassment.

 

(c)          Whether the evidence admitted at trial supported the verdict rendered by the jury.

 

(d)          Whether the trial court should have denied any or all of defendant’s motions for entry of judgment of acquittal.

 

(e)          Whether the one-year statute of limitations applied to bar the charging of defendant with misdemeanor assault, of which he was convicted.

 

(f)          Whether defendant’s objections to the court’s jury instructions should have been sustained.

 

(g)          Whether defendant’s requested jury instructions should have been allowed.

 

(h)          Whether defendant’s motions for dismissal and/or advancement of expert witness costs should have been denied.

 

(i)     Whether the initial charge of felony Malicious Harassment under Idaho Code §18-7901, et seq., should have been allowed under either or both the United States and Idaho Constitutions.

 

Some Final Observations

 

Now that the case has ascended to "appellate heaven,"  substantial delays can be expected.  I will keep you posted when developments occur, but don't be surprised if it is quite some time in between future updates on the Lonny Rae case.

 
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."
 
Nor is the practice of charging somebody from the bench with new crimes, after the trial is over, something which should go unexamined by the Supreme Court.  This happens in Idaho far more often than you might imagine.  Thing is, the judges rarely get challenged.
 
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.
 
This case is vitally important to all of us, particularly in the current climate of dwindling personal liberty.  This is one of the first cases I have seen that I would put in the category of being a pure thought crime, a la George Orwell's classic novel 1984.  Sure he said it.  So what?  The First Amendment should protect anybody who wishes to engage in such admittedly dreadful behavior, and who should be free of the fear of doing hard time for saying what's on his mind.
Not long ago, 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."
 
Thanks to the generosity of several kind individuals, many of whom could ill afford to send anything at all, we have so far collected enough to barely cover our trial and travel expenses.  Many thanks to those generous people.  There is a long road ahead of us, however. 
 
We have recently formed the Patriot Civil Liberties Union (PCLU).  Before long, we will have a web site up to present its charter and its mandates.  We encourage contributions 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 steele@plainlawtalk.com earmarked for PCLU. 
 
Consider it an investment in legal insurance.  You could be in Lonny Rae's shoes next:  Guilty of honor. 


-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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