The Commonwealth of Kentucky v. Matthew Heimbach

On July 21, 2016, Ryan Lenz of the Southern Poverty Law Center gleefully published a smear on the SPLC’s blog about how a criminal charge of assault had recently been filed against Matthew Heimbach by the Jefferson County, Kentucky, prosecutor.  Heimbach is alleged to have assaulted Shiya Nwanguma during a Donald Trump rally that occurred on February 29, 2016.  The first to report on the criminal case being initiated was Jason Riley of WDRB—and he did so on July 20, 2016.

On July 23, 2016, the Foundation for the Marketplace of Ideas, Inc., demanded from the Louisville Metro Police Department records concerning the criminal charge.  On July 27, 2016, the police department’s incident/investigation report—which was redacted in part—was provided to FMI.

Noteworthy about the report is that it alleges that Heimbach was motivated by “anti-black” bias during a “political rally” on behalf of a “hate group”:  “Traditionalist Worker.”  Nowhere is it stated how the police determine what constitutes a “hate group” or who or which organization informed the police that said organization is a “hate group.”

Noteworthy about FMI’s demand for records is that FMI requested in pertinent part “Any and all correspondence received from or sent to any person or organization concerning the incident or Mr. Heimbach[.]”  The police department objected to this request on the basis that the release of such correspondence “could result in prejudice to the potential witnesses and has the potential to adversely color witness recollection of the events.”

Being that the criminal charges were filed almost five entire months after the incident and since the police did not deny the existence of correspondence involving third-parties but instead refused to provide it, it is entirely possible—if not likely—that leftists contacted the police and/or prosecutor to encourage them to prosecute Heimbach for politically vindictive reasons.

If the Louisville Metro Police Department or prosecutor was induced to criminally investigate or file criminal charges, respectively, by a political detractor of Heimbach for politically discriminatory purposes, then such would need to be disclosed to the criminal defense attorney who ends up representing Heimbach.  Per Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), the government must disclose to criminal defendants all evidence in the government’s actual or constructive possession which is exculpatory—and exculpatory evidence is that which is material as to one’s guilt or punishment.

A myriad of opinions from the United States Supreme Court provide that a citizen cannot be prosecuted for the ulterior purpose of penalizing the citizen for exercising a right or based upon the citizen’s protected class.  See North Carolina v. Pearce, 395 U.S. 711 (1969); Colten v. Kentucky, 407 U.S. 104 (1972); Blackledge v. Perry, 417 U.S. 21 (1974); Chaffin v. Stynchcombe, 412 U.S. 17 (1973); Bordenkircher v. Hayes, 434 U.S. 357 (1978); and United States v. Goodwin, 457 U.S. 368 (1982).

Prosecutorial vindictiveness occurs when the prosecutor violates a criminal defendant’s due process rights by prosecuting the defendant—even in part—for asserting a protected statutory or constitutional right.  Bordenkircher, 434 U.S. at 363 (“To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort * * *.”).

When prosecutorial vindictiveness occurs, the prosecution is rendered in and of itself “patently unconstitutional” even if the crime had in fact been committed by the criminal defendant.  Chaffin, 412 U.S. at 32, fn. 20.  Prosecutorial vindictiveness is presumed to occur when “action detrimental to the defendant has been taken after the exercise of a legal right[.]”  Goodwin, 457 U.S. at 373.  Presumed prosecutorial vindictiveness requires only a “reasonable likelihood” that the prosecution is motivated for vindictive purposes.  Id.  For purposes of determining whether a prosecutor’s conduct poses a realistic likelihood of vindictiveness, a trial court considers the “prosecutor’s ‘stake’ in deterring the exercise of a protection right and the unreasonableness of [the prosecutor’s] actions.”  United States v. Poole, 407 F.3d 767, 774 (6th Cir. 2005).

Heimbach clearly enjoys the fundamental right to support Trump’s candidacy for president.  U.S. Const., Ams. I and XIV; Gitlow v. New York, 268 U.S. 652 (1925).  One can only wonder—especially since the Louisville Metro Police Department is not producing third-party correspondence—whether Heimbach is being prosecuted not for his conduct but for what he thinks and publicly says.

It is not at all farfetched to postulate that Heimbach is being prosecuted for being a supporter of Trump’s policies and not for what Heimbach is alleged to have done as far as criminal law is concerned—especially since the police noted in their report that the alleged victim suffered “NO VISIBLE INJURY” (emphasis in original), the criminal case was oddly commenced nearly five entire months after the incident, and the police presumably have correspondence from third-parties concerning Heimbach that they are refusing to release in light of their response to FMI’s Open Records Act request.

Trump’s supporters have been viciously attacked by leftists at Trump’s rallies that he has held throughout the United States, and yet criminal prosecutions of the violent leftists who perpetrate even visible injuries does not occur.  To selectively prosecute American citizens based upon their political creed is repugnant to the U.S. Constitution, offensive to people who suffer the government-sanctioned discrimination, and unacceptable to our system of ordered liberty.

Heimbach desperately needs to raise money to retain a criminal defense attorney—who will likely require an initial retainer of somewhere between $5,000 and $7,500.  To assist Heimbach with his costs of fighting for his freedom and rights, consider mailing him a check or money order, made out to “Matthew Heimbach,” to:  Matthew Heimbach, P.O. Box 606, Benson, NC 27504.  Be sure to print “Legal Defense” on the memorandum line.