After the publication last Thursday of “The Cross Burning Case: What Really Happened,” readers have asked follow-up questions about the 1994 trial that Democrats cite to accuse federal-appeals-court-nominee Charles Pickering of “racial insensitivity.” New York Sen. Charles Schumer and others charge that Pickering, a U.S. District Court judge Mississippi who has been nominated for a place on the Fifth Circuit Court of Appeals, abused his powers to win a light sentence for a man convicted of burning a cross in the front yard of a mixed-race couple. Here are some of the questions that have been asked about the case, along with answers based on the best available information: Why did the Clinton Justice Department give a no-jail misdemeanor plea bargain to the 17-year-old defendant — who was the ringleader in the crime, who appeared to be motivated by racial hatred, and who had on an earlier occasion fired a shot into the home of the mixed-race couple — while demanding that the other defendant, Daniel Swan — who was not the ringleader, who apparently did not share the 17-year-old’s racial animus, and who had no role in the shooting incident — be sent to jail for seven and a half years?
The answer is not entirely clear; the Justice Department’s prosecution memos and other internal deliberation documents are confidential, and no one who was involved in the prosecution has publicly explained the department’s motives. But there is enough publicly available evidence to suggest a few conclusions. First, and most obviously, the 17-year-old agreed to plead guilty, which often helps a defendant receive a reduced sentence. (It’s not clear why the Justice Department dealt with the 17-year-old as a juvenile; given the seriousness of the crime, he could have been treated as an adult.) Swan did not agree to plead guilty. While he never denied that he took part in the cross burning, he did deny that he acted out of racial animus, which is required for a heavy sentence under the federal hate crimes statute. He chose to take his chances at trial, and was convicted. At that point, there was no question he would go to prison. Pickering felt strongly that Swan should serve time, but he believed that seven-and-a-half years was too long, in light of the leniency given to the 17-year-old and the other circumstances of the case (discussed below).
Another possible explanation for the easy treatment given to the 17-year-old is that the no-jail plea offer was made by the United States Attorney’s Office in Mississippi (and accepted by the defendant) before all the facts of the case were known. The government’s insistence on a mandatory minimum seven-and-a-half year sentence for Swan came later, after lawyers from the Justice Department’s Civil Rights Division became involved. While they wanted a stiff sentence for Swan, it appears that the Civil Rights Division lawyers also realized that letting the 17-year-old off with no jail had been a mistake. In a February 12, 2002 letter to Republican Sen. Orrin Hatch, Pickering cited the transcript of an open court session in which he told Civil Rights Division lawyer Brad Berry that he felt the Swan case was an example of disparate sentencing. Berry answered, according to the transcript cited by Pickering, that, “Perhaps the lesson — the lesson that I take from that, your Honor, is that perhaps the government should have been more tough — should have asked for a more stringent or stronger or longer sentence for the other defendants in this case.”
There are also some indications that at least one Justice Department lawyer involved in the case agreed with Pickering that the department’s sentencing demand for Swan was too severe. In a January 5, 1995 memo to Linda Davis, who was head of the criminal section of the Civil Rights Division, federal prosecutor Jack Lacy recounted several sessions with Pickering on the Swan issue (the memo was made public as part of Pickering’s confirmation hearings.) “The impulse to the conversation is always the same,” Lacy wrote. “He thinks the sentence facing Swan is draconian, and he wants a way out. He has been careful to phrase his concern in such terms as, ‘I wish you could suggest some way that this harsh sentence could be avoided.’” Later in the letter, Lacy wrote that he “personally agreed with the judge that the sentence is draconian,” but said he also reminded Pickering that Swan could have pleaded guilty but instead, “the defendant repeatedly chucked our offers in our teeth.”
Finally, as the last few words of that passage suggest, it is possible that Swan — and the whole vexing case — simply made prosecutors mad. They could not undo the damage they had done by letting the 17-year-old off with no jail time, but they could compensate by meting out heavy punishment to Swan.
How did Pickering know that the 17-year-old harbored the racial animus required for a severe sentence under the hate crime statute, while Swan did not?
The first and clearest reason is the earlier incident in which the 17-year-old had fired a shot into the home of the mixed-race couple in whose yard he and Swan would later burn the cross. (The Justice Department allowed the 17-year-old to plead guilty to a felony in that incident, all as part of the no-jail plea bargain.) Swan had nothing to do with that shooting, and had no criminal record. The other evidence of racial animus came out during the sentencing phase of the trial — well after the government had agreed to the juvenile’s guilty plea. This is how Pickering explained it in his February 12, 2002 letter to Hatch:
At sentencing…courts must also take into account evidence of the defendant’s history. This is where the breadth of disparity in racial animus between the 17 year-old and Swan became clear. While the 17 year-old and Swan had both used the “N-word” previously, the 17 year-old’s own grandmother stated that he did not like “blacks” and his own mother stated that he “hated N — -s.” (Emphasis added.) In contrast, seven witnesses and Swan’s mother stated that he had no racial animus; only one witness stated that Swan did not like African Americans, and this was disputed. Further, the 17 year-old had acted on his “hate” by fighting with African Americans at school, resulting in his suspension. Swan had neither fought with African Americans nor been suspended for any racial incident. Moreover, the 17 year-old had shot a firearm into the home of the mixed-race couple in whose yard the cross was later burned and bragged about “shooting at some N — -s.” Swan had never shot at or into the home of African Americans, or anyone else. In short, even though both participated in the heinous crime, the 17 year-old defendant also had a history of escalating violence motivated by racial hatred that culminated in his participation in the cross burning, while Swan did not.
Was Pickering’s communication with the Justice Department improper?
At Pickering’s second confirmation hearing, North Carolina Democratic Sen. John Edwards accused him of violating the Code of Judicial Conduct by calling top Justice Department official (and fellow Mississippian) Frank Hunger to discuss the Swan case. In that call, Pickering expressed his frustration with the Justice Department’s position; Hunger told Pickering the case wasn’t within his area of responsibility, and the two men ended the conversation.
The section of the Code to which Edwards referred is a rule intended to prevent judges from making secret deals with one side or another in a case. It says: “A judge should…neither initiate nor consider ex parte communications on the merits, or procedures affecting the merits, of a pending or impending proceeding.” Pickering explained to the Judiciary Committee that he had previously discussed his concerns at length with both sides in the Swan case and that the call to Hunger was a “follow-up” to see if the Justice Department was going to respond to his questions about the sentencing. None of that, he explained, touched on the merits of the case, and thus the call was not improper.
In addition, last February, Hunger, a lifelong Democrat who also happens to be Al Gore’s brother-in-law, wrote a letter to the Judiciary Committee saying, “I think it appropriate that it be known that I have little or no recollection of the call. The significance of this to me is that had I felt at the time that there was anything inappropriate or improper about Judge Pickering’s call I would most assuredly remember it today.” Continuing, Hunger told the committee, “I have known Judge Pickering for nearly thirty years and have the utmost respect for him as a fair-minded judge who would never knowingly do anything improper or unethical.”
Had Pickering ever shown similar concerns about heavy sentencing of other defendants, particularly African Americans, in cases that had nothing to do with race?
On March 14, 2002, at the Judiciary Committee meeting in which Democrats killed the Pickering nomination, Sen. Edward Kennedy suggested that Pickering practiced a selective form of leniency — that he went easy on a racist cross burner and tough on everybody else, including blacks convicted of crimes in his court. One week later, on March 21, Pickering sent Hatch a letter in which he said, “I have consistently sought to keep from imposing unduly harsh penalties on young people whom I did not feel were hardened criminals.” (Swan was a first-time offender.) Pickering went on to describe several cases in which “departed downward,” that is, reduced the sentences of first-time offenders from the mandatory minimums required by law.
“One case involved a 20 year-old African American male who faced a mandatory minimum five year sentence,” Pickering wrote. “I departed downward to 30 months. I also recommended that he be allowed to participate in the intensive confinement program which further reduced his sentence.” Pickering also described the case of a 58-year-old black man who faced a five-year mandatory sentence, plus a minimum of 46 months for a separate drug charge. Pickering again sentenced the man to 30 months. In two other cases, he threw out any jail time for men who faced prison terms of 18 and 40 months, respectively. Both defendants were black. “I have departed downward in far more cases involving African Americans than I have in cases involving white defendants,” Pickering wrote.
Pickering sent Hatch the names of the cases, the case numbers, letters from the defense lawyers involved, and the phone numbers of people to call to check his account of his sentencing practices. Of course, by that time, Democrats on the committee had already killed his nomination on a straight party-line vote.