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The Cross Burning Case: What Really Happened
The facts are far different from the Democratic spin.


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Byron York

In their renewed attacks on Bush appeals-court nominee Charles Pickering, Democrats have focused on Pickering’s rulings in a 1994 cross-burning case. Accusing Pickering of “glaring racial insensitivity,” they charge that he abused his powers as a U.S. District Court judge in Mississippi to give a light sentence to a man convicted of the crime. “Why anyone would go the whole nine yards and then some to get a lighter sentence for a convicted cross burner is beyond me,” New York Democratic Sen. Charles Schumer said Wednesday. “Why anyone would do that — in 1994 and in a state with Mississippi’s history — is simply mind-boggling.”

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But a close look at the facts of the case suggests that Pickering’s actions were not only not mind-boggling but were in fact a reasonable way of handling a difficult case. Here is what happened:

The crime took place on January 9, 1994. Three men — 20-year-old Daniel Swan, 25-year-old Mickey Herbert Thomas, and a 17-year-old whose name was not released because he was a juvenile — were drinking together when one of them came up with the idea that they should construct a cross and burn it in front of a house in which a white man and his black wife lived in rural Walthall County in southern Mississippi. While it is not clear who originally suggested the plan, it is known that the 17-year-old appeared to harbor some sort of hostility toward the couple; on an earlier occasion, he had fired a gun into the house (no one was hit). Neither Swan nor Thomas was involved in the shooting incident.

The men got into Swan’s pickup truck, went to his barn, and gathered wood to build an eight-foot cross. They then drove to the couple’s house, put up the cross, doused it with gasoline, and set it on fire.

Because the case involved a cross burning covered under the federal hate-crimes statute, local authorities immediately brought in investigators from the Clinton Justice Department’s Office of Civil Rights. After the three suspects were arrested in late February, 1994, lawyers for the civil-rights office made the major decisions in prosecuting the case.

In a move that baffled and later angered Judge Pickering, Civil Rights Division prosecutors early on decided to make a plea bargain with two of the three suspects. The first, Mickey Thomas, had an unusually low IQ, and prosecutors decided to reduce charges against him based on that fact. The second bargain was with the 17-year-old. Civil Rights Division lawyers allowed both men to plead guilty to misdemeanors in the cross-burning case (the juvenile also pleaded guilty to felony charges in the shooting incident). The Civil Rights Division recommended no jail time for both men.

The situation was different for the third defendant, Daniel Swan, who, like the others, faced charges under the hate-crime statute. Unlike the others, however, Swan pleaded not guilty. The law requires that the government prove the accused acted out of racial animus, and Swan, whose defense consisted mainly of the contention that he was drunk on the night of the cross burning, maintained that he simply did not have the racial animus necessary to be guilty of a hate crime under federal law.

The case went to trial in Pickering’s courtroom. During the course of testimony, Pickering came to suspect the Civil Rights Division had made a plea bargain with the wrong defendant. No one questioned the Justice Department’s decision to go easy on the low-IQ Thomas, but the 17-year-old was a different case. “It was established to the satisfaction of this court that although the juvenile was younger than the defendant Daniel Swan, that nevertheless the juvenile was the ring leader in the burning of the cross involved in this crime,” Pickering wrote in a memorandum after the verdict. “It was clearly established that the juvenile had racial animus….The court expressed both to the government and to counsel for the juvenile serious reservations about not imposing time in the Bureau of Prisons for the juvenile defendant.”

In addition to the 17-year-old’s role as leader, there was significant evidence, including the fact that he had once fired a shot into the mixed-race couple’s home, suggesting that he had a history of violent hostility to blacks that far outweighed any racial animosity felt by Daniel Swan. Swan had no criminal record, and seven witnesses testified that they were not aware of any racial animus he might have held against black people. On the other hand, one witness testified that he believed Swan did not like blacks, and Swan admitted under questioning that he had used the “N” word in the past. In the end, Swan was found guilty — there was no doubt that he had taken an active role in the cross burning — and the Justice Department recommended that he be sentenced to seven and a half years in jail.

At that point, the Justice Department had already made a no-jail deal with the 17-year-old. When it came time to sentence Swan, Pickering questioned whether it made sense that the most-guilty defendant got off with a misdemeanor and no jail time, while a less-guilty defendant would be sentenced to seven and a half years in prison. “The recommendation of the government in this instance is clearly the most egregious instance of disproportionate sentencing recommended by the government in any case pending before this court,” Pickering wrote. “The defendant [Swan] clearly had less racial animosity than the juvenile.”

Compounding Pickering’s concern was a conflict between two federal appeals-court rulings over the applicability of a statutory mandatory minimum sentence to the case. The Justice Department insisted that Swan be sentenced to a minimum of five years under one statute and two and a half years under a separate law. Pickering doubted whether both were applicable to the case and asked Civil Rights Division lawyers whether the same sentencing standards were used in cases in other federal circuits. The prosecutors said they would check with Washington for an answer.

Pickering set a sentencing date of January 3, 1995. As the date approached, he waited for an answer from the Justice Department. He asked in November, 1994 and received no response. He asked again in December and received no response. He asked again on January 2, the day before the sentencing, and still received no response. He delayed sentencing, and on January 4 wrote a strongly-worded order to prosecutors demanding not only that they respond to his questions but that they take the issue up personally with Attorney General Janet Reno and report back within ten days.

Shortly after issuing the order, Pickering called assistant attorney general Frank Hunger, a Mississippian and friend of Pickering’s who headed the Justice Department’s Civil Division at the time (Hunger was also well known as the brother-in-law of vice president Al Gore). Pickering says he called Hunger to express “my frustration with the gross disparity in sentence recommended by the government, and my inability to get a response from the Justice Department in Washington.” Hunger told Pickering that the case wasn’t within his area of responsibility. It appears that Hunger took no action as a result of the call. (Hunger later supported Pickering’s nomination to the federal appeals courts.)

Finally, Pickering got word from Civil Rights Division prosecutors, who said they had decided to drop the demand that Swan be given the five-year minimum portion of the recommended sentence. Pickering then sentenced Swan to 27 months in jail. At the sentencing hearing, Pickering told Swan, “You’re going to the penitentiary because of what you did. And it’s an area that we’ve got to stamp out; that we’ve got to learn to live, races among each other. And the type of conduct that you exhibited cannot and will not be tolerated….You did that which does hinder good race relations and was a despicable act….I would suggest to you that during the time you’re in the prison that you do some reading on race relations and maintaining good race relations and how that can be done.”

So Swan went to jail, for a bit more than two years rather than seven. Every lawyer in the case — the defense attorneys, the prosecutors, and the judge — faced the difficulty of dealing with an ugly situation and determining the appropriate punishment for a bad guy and a somewhat less-bad guy. Pickering, who believed the Civil Rights Division went too easy on the 17-year-old bad guy, worked out what he believed was the best sentence for Daniel Swan. It was a real-world solution to the kind of real-world problem that the justice system deals with every day. And it was the end of the cross-burning case until Pickering was nominated by President Bush to a place on the Fifth Circuit Court of Appeals.



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