Criminal Justice

'The Lord Shall Smite Thee': Not a True Threat

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I don't know whether Benton County, Michigan, Judge Alfred Butzbaugh really is "dumb," "corrupt," and "racist," as the Rev. Edward Pinkney claimed in a tirade published by the Benton Harbor People's Tribune a couple of years ago. But he does seem to be pretty thin-skinned. Butzbaugh, who presided over the 2007 trial in which Pinkney was convicted of buying votes in a local recall election, sentenced the activist minister to probation. After the insulting article appeared, however, Pinkney's probation was revoked. For dissing Butzbaugh, he was sentenced to prison for three to 10 years (by another judge), based on his violation of a probation condition barring "any assaultive, abusive, defamatory, demeaning, harassing, violent, threatening, or intimidating behavior, including the use, through any electronic or print media under [his] care, custody or control, of the mail, e-mail or internet." Yesterday a state appeals court ruled that the ban on "defamatory" or "demeaning" speech unjustifiably impinged on Pinkney's First Amendment rights, since it was not related to his crime or to protecting public safety. The court also rejected the claim that Pinkney threatened Butzbaugh when he urged him to repent by paraphrasing a passage from Deuternonomy:

Judge Butzbaugh, it shall come to pass; if thou continue not to hearken unto the voice of the Lord thy God to observe to do all that is right; which I command thee this day, that all these Curses shall come upon you and your family, curses shalt be in the City of St. Joseph and Cursed shalt thou be in the field, cursed shall come upon you and your family and over take thee; cursed shall be the fruit of thy body. The Lord shall smite thee with consumption and with a fever and with an inflammation and with extreme burning. They the demons shall Pursue thee until thou persist.

The punishment of biblical rhetoric attracted the interest of several religious groups, which filed a brief (PDF) on Pinkney's behalf. The appeals court decision is here (PDF).

Last week I noted the First Amendment questions raised by probation restrictions imposed on a South Dakota marijuana activist. Last month, after a white supremacist was arrested for threatening federal judges, I discussed the difference between fiery rhetoric and true threats.

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  1. Judge Butzbaugh, it shall come to pass; if thou continue not to hearken unto the voice of the Lord thy God to observe to do all that is right; which I command thee this day, that all these Curses shall come upon you and your family, curses shalt be in the City of St. Joseph and Cursed shalt thou be in the field, cursed shall come upon you and your family and over take thee; cursed shall be the fruit of thy body. The Lord shall smite thee with consumption and with a fever and with an inflammation and with extreme burning. They the demons shall Pursue thee until thou persist.

    A rather verbose way of saying Go Fuck Yourself.

  2. Tom must have been the revered’s attorney on this one.

  3. He. Was. Trying. To. Do. You. A. Favor.

    Sheesh.

  4. Well… I think there is this concept of someone convicted having to take responsibility for their crime in order to earn probation.

    There is an implication of “my judge was stupid and racist” meaning “I was FRAMED! I tell ya!” — which isn’t exactly acknowledging guilt (like, legal guilt, not Catholic guilt).

    In the marijuana case, he can say, I did it, I’m paying the consequences, but it shouldn’t be illegal (or, but it was fun, or, they can’t catch everybody). He’s still admitting some kind of guilt.

    I don’t think the good reverend is trying to say “vote buying is good, and I did it”. (If he wants to take that angle, there’s probably some pithy Walter Block he could quote.)

    Now, that said, the condition of probation cited for further punishment does seem to be a “shut up” clause, not a “show contrition” clause.

    Then again: Don’t violate the Condition, if you don’t want to face Rendition…

  5. FSM damn Judge B to walking the plank at thy next Rotary meeting. Aarrgh!!!

  6. Butzbaugh? Really? Butzbaugh? Damn, that’s a punchline looking for a joke.

  7. ?Butzbaugh, Butzbaugh
    Macho-mobile
    The road’s my slave
    That’s how I feel

    I cruise alone
    I cruise real far
    I don’t love you
    I love my car?

  8. ChrisH, think of violating the condition as civil disobedience, to set up a justified Constitutional challenge.

  9. … consumption and with a fever and with an inflammation and with extreme burning.

    TB, the flu and hemorrhoids! Suck on that, judge!

    They the demons shall Pursue thee until thou persist.

    “Persist?” Doesn’t Churchy McCurseytrousers mean “desist?”

  10. Yea and verily, I shall cast these raiments upon the waters of the Maytag!

    Now depart thee,
    And do not turn back,
    lest thee suffer Severe Tire Damage!

  11. ‘(like, legal guilt, not Catholic guilt).’

    At the risk of messing with your metanarrative, Catholic canon law and penitential literature has had a great deal of influence over how Western criminal law deals with mental states. That is, the same action can be treated more or less harshly depending of the state of mind of the actor (knowingly, intentionally, recklessly, etc.).

  12. And Saint Attila raised the hand grenade up on high, saying, “O Lord, bless this thy hand grenade, that with it thou mayst blow thine enemies to tiny bits, in thy mercy.” And the Lord did grin. And the people did feast upon the lambs and sloths, and carp and anchovies, and orangutans and breakfast cereals, and fruit-bats…

  13. Pinkney doesn’t even use correct early modern English: It should be “if thou continuest not to hearken”, “curses shall be in the City” and “until thou persistest”

  14. Here is the text of the Court of Appeals decision.

    The part about the probation revocation begins on p. 33.

    You can read the offending editorial there, and this description of why the trial court revoked probation: ‘Although the paraphrase of Deuteronomy 28 was not a threat of what defendant himself would
    do, defendant, who was a minister, called upon the divine powers of God to curse Judge
    Butzbaugh, and this, according to the trial court, was a threat or, at the very least, an attempt to
    intimidate. The trial court also found that defendant’s comments that Judge Butzbaugh was
    “racist” and “corrupt” and had “violated his oath” were defamatory and demeaning. According
    to the trial court, there was no “scintilla of evidence” to support defendant’s comments, and this lack of evidence indicated that defendant’s statements were false and were made with a reckless disregard for the truth.’

    The Court of Appeals commented: ‘To the extent that the prohibition of defamatory and demeaning behavior impinges on defendant’s first amendment rights, the prohibition was not proper, as it was not directly related to defendant’s rehabilitation or to the protection of the public. Id. Because the prohibition was not proper, the trial court abused its discretion in revoking defendant’s probation based on a violation of the prohibition.’

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  16. One small correction: the _People’s Tribune_ is actually published out of Chicago.

    And one note of gladness that another correction/update is not needed: MadMax’s link is to a later release of the court’s opinion — which includes a memo at the start. That memo says that there was a mistake in the footnote on page 35 that quoted the paraphrased passage from Deuteronomy.

    As the opinion originally quoted that passage (King James Version), it started like this: “But it shall come to pass, if thou wilt hearken unto the voice of the Lord thy God, to observe to do all his commandments and his statutes which I command thee this day; that all these curses shall come upon thee, and overtake thee. . . .”

    Yeah — there’s supposed to be a “not” in between “if thou wilt” and “hearken”. . . :]

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