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May 6, 2002 8:45 a.m. The Trials of John Edwards The presidential hopeful says he's not like all those bad trial lawyers. Really?

alk to Republicans in politics, and you'll get a lurid picture of top trial lawyers riding around in private planes and giving lots of money to Democratic politicians, in order to insure that there won't be any legislative limits placed on their sky-high damage awards," writes Nicholas Lemann in a New Yorker profile of the Democratic senator and presidential hopeful John Edwards. "It would therefore be natural for Republicans to assume that the way to beat John Edwards is simply to point out that he is a trial lawyer. Edwards appears to view that prospect in the way that Br'er Rabbit viewed the prospect of being thrown into the briar patch....Edwards wants to run as a trial lawyer."

It's an audacious tactic for a presidential candidate, given the public's generally low opinion of that branch of the legal profession. But, as Lemann writes, Edwards casts himself as a good-guy trial lawyer, a man who won awards from negligent doctors and hard-hearted corporations on behalf of children who suffered terribly from medical malpractice. That record, he believes, will give him political protection against lurid pictures of him and his friends riding around in private planes and giving lots of money to Democratic politicians in order to protect his sky-high damage awards. Perhaps it will, although so far, Edwards's record has not been subjected to the kind of scrutiny that will come should he emerge as a factor in the 2004 presidential race (indeed, his work merits almost no
examination at all in Lemann's piece).

But one need not delve into Edwards's pre-Senate career to see a skilled trial lawyer at work. A look at Edwards's record on the Senate Judiciary Committee reveals the degree to which John Edwards the senator uses the extraordinary courtroom skills he developed as John Edwards the trial lawyer. In one of Edwards's most important recent votes, for example — his
decision to oppose the nomination of Charles Pickering to a place on the Fifth Circuit Court of Appeals — Edwards's performance was almost a parody of the bad-guy trial lawyer. In an aggressive cross-examination, Edwards relied on misleading questions, misrepresented premises, and unfounded conclusions as he tried to force Pickering to admit wrongdoing. Although Edwards's style was extraordinarily smooth and polished, it was precisely the kind of exhibition that reinforces the worst images of trial lawyers — whether they are running for president or not.

CROSS TO BEAR
Edwards's questions to Pickering concerned a 1994 case in which three men were accused of burning a cross in the front yard of a mixed-race couple in rural Jones County, Mississippi. Two of the defendants made plea-bargain deals with the Clinton Justice Department's Civil Rights Division; prosecutors agreed to let each man off without jail time (even though one of them had shot into the couple's home on an earlier occasion). The third defendant, a man named Daniel Swan, chose to go to trial, saying he was drunk at the time of the crime and was not motivated by racial hatred. Tried in Pickering's courtroom in United States District Court, Swan was found guilty of all counts, and Justice Department prosecutors wanted him to go to prison for seven and a half years.

But evidence that emerged during the sentencing phase of the trial suggested that one of the defendants who got off with no jail was not only the ringleader in the crime but also had a significant history of racial hatred, which is required for long sentences under the federal hate crime statute. There was far less evidence of racial animus on Swan's part; in fact, seven witnesses, both black and white, testified that they were not aware of any racial animus he might have held against black people. While Pickering did not object to sending Swan to prison — he was clearly guilty of taking part in the cross burning — the judge believed that the seven and a half year sentence was too severe, given that a more culpable co-defendant was given no jail time at all.

Pickering asked Justice Department lawyers whether the seven-and-a-half year sentence recommendation was consistent with department practice in other areas of the country. When weeks went by without an answer, Pickering phoned Frank Hunger, a friend from Mississippi who was also a top official in the Justice Department, to express his frustration. Nothing came of the conversation — Hunger told Pickering it wasn't his area of responsibility — but the call caught Edwards's attention.

"You made a telephone call to a high ranking Justice Department official, according to the information that we have," Edwards said, "And you are familiar, are you not, judge, with the Code of Judicial Ethics that applies to you? You are familiar with that, are you not?"

"I am," Pickering said.

"And are you familiar with Canon 3(a)(4) of that Code which says, 'except as authorized by law, a judge should neither initiate nor consider ex parte communications on the merits of a pending or impending proceeding' [The ex parte rule is intended to insure that judges do not make separate deals or in any way favor one side or the other]. Did you make a phone call to a high ranking Justice Department official on your own initiative?"

"We had had — "Pickering began to answer.

"Not 'we,'" Edwards interrupted. "You. Did you make this phone call?"

"I've indicated I called Mr. Hunger and discussed the fact that I was frustrated I could not got a response back from the Justice Department, and I thought there was a tremendous amount of disparity in this sentence."

"Were the government prosecutors on the phone when you made that call?"

"No, they were not."

"So that would be what we lawyers and judges would call an ex parte communication, would it not?"

"Well, whether the government attorneys had been on the phone or not, it would have been a question of whether the defense counsel had been on the phone," Pickering said.

"Was the defense counselor on the phone?" Edwards asked.

"No, we had discussed that with them, and this was a follow-up conversation as to what we had discussed with defense counsel present," Pickering said.

"Were any of the lawyers in the case on the phone when you called Mr. Hunger?" Edwards asked.

"No, they were not."

"So that was an ex parte communication, was it not?"

"It was."

"In violation of the Code of Judicial Conduct."

"I did not consider it to be in violation of the Code of Judicial Conduct."

"Well, could you explain that to me?" Edwards pressed. "The Code says you should 'neither initiate nor consider ex parte communications in a pending or impending proceeding.'"

It was something of a Perry Mason moment, at least as far as normally sedate confirmation hearings are concerned. But there was a problem. Edwards, perhaps following his trial lawyer's instinct as he moved in for the kill, misstated the Code he had read to Pickering just moments before. The Code says this: "A judge should...neither initiate nor consider ex parte communications on the merits, or procedures affecting the merits, of a pending or impending proceeding." [Italics added] Pickering clearly stated that he discussed his intentions with both sides in the case and that the call to Hunger was a "follow-up" to see if the Justice Department was going to respond to his questions. None of that touched on the merits of the case (a conclusion a number of legal experts came to when they examined Pickering's behavior in the case). In addition, Frank Hunger, a lifelong Democrat who also happens to be Al Gore's brother-in-law, told the Judiciary Committee there was nothing improper about that call, adding, "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." But it didn't matter; Edwards had made Pickering look guilty.

NEW TRIAL? WHAT NEW TRIAL?
Another troubling aspect of Edwards's performance involved his questioning of Pickering on the issue of whether Pickering, in his frustration with the Justice Department, had ever threatened to hold a new trial for Daniel Swan. After their sometimes-heated discussions with Pickering, some Justice Department lawyers wrote internal memos discussing the judge's objections to their sentence recommendation for Swan. Edwards had one of these memos in his hand when he started his questioning.

"You told the government lawyers that you would on your own motion order a new trial, and when the government lawyer asked you, and I'm quoting now, 'What would be the basis for such a motion?' your answer was, 'Any basis you choose.' First of all, judge...did you say that you would order a new trial, even though no motion for a new trial had been made?"

"I did not," Pickering answered.

"So you deny that?"

"I've reviewed the transcript — "

"So you deny having said that?" Edwards pressed.

"I did not say that," Pickering said.

"So if the lawyers who were involved in that case have said that that's a statement you made to them, that would be a lie?"

"Senator, on the record, I mentioned — "

"Excuse me, judge," Edwards interrupted. "According to documents that we've been provided, this took place in a private meeting you had with the lawyers, when you told the lawyers you would order a new trial on your own motion, and when they asked you, and I'm quoting now, 'What would be the basis for such a motion for a new trial?' you said, 'Any basis you choose.' Do you deny having said that?"

Pickering seemed confused. "I have no recollection of having said that," he said, "and I do not believe that I said that. Now, I have not seen the document that you are referring to. The Justice Department did not show me the files that they had."

The document which Edwards was using — and which Pickering had not seen — was one of the internal memos written by prosecutors in the case. In that memo, the prosecutor said that in in-chambers discussions, Pickering was concerned that there were conflicting precedents over the use of the hate crime law (known in the memo as the "844 charge" because it is part of Section 844 of the Federal Code). Pickering wanted to send Swan to jail, but had strong doubts about the applicability of the hate-crime charge. This is the portion of the memo on which Edwards based his questions:

Pickering then asked whether the department would agree not to oppose a motion for a new trial on the 844 charge (which trial presumably would never take place), if Swan received the maximum on the other two charges. Pickering expressed a willingness to sentence Swan to 36 months on the other two charges if he could find a way to do it. He said that if the department does not agree to do this, he might well write a nasty opinion from our perspective, emphasizing the sentencing disparities and the injustice of applying section 844 in this case. He said that given his strong feelings against applying 844 in this case, he might well leave this task to the Fifth Circuit. After further discussion, I asked Pickering what would be the basis for the motion for a new trial. Pickering responded: 'Any basis you choose.'"

In a letter written after the hearing, Pickering said "I never indicated I would grant a motion for a new trial, sua sponte [on his own motion]." And indeed, the memo does not say that he did. In a normal proceeding, the defense would normally make a motion for a new trial, almost as a matter of routine, and Pickering seemed to be suggesting that he would look favorably on one, at least as far as the 844 charge was concerned. Or he might let the case make its way to the appeals court and be settled there. But Edwards apparently wanted to suggest that Pickering was willing to violate judicial ethics to protect a convicted cross-burner. Using a classic bad-guy trial lawyer technique, Edwards misrepresented a document that Pickering had never seen in an attempt to suggest that Pickering was lying to the committee. It didn't matter that Pickering was telling the truth; the damage was done.

OBSESSIVE PREPARER
"In a field where most people are either obsessive preparers of cases or theatrical stars in the courtroom, he was both" writes Nicholas Lemann of Edwards in The New Yorker. Whatever one may think about Edwards's fairness in the Pickering case, there is no doubt that his performance seemed both theatrical and quite well prepared. In fact, it was so well prepared that it left some observers curious — perhaps a bit suspicious — about how Edwards did it.

In the days before the Pickering hearing, the Justice Department and committee Democrats were haggling over the release of the internal memo which Edwards used against Pickering. The documents were the Justice Department's property, and the Bush administration has been famously
tight-fisted in its approach to making internal information like that public. Faced with a request for documents from the Judiciary Committee, the Department dragged its feet, not deciding to release them until the morning of the hearing. Then they had to be redacted, which took place in the hours before Pickering was scheduled to testify at 2:00 p.m. The upshot of all the indecision was that the department did not give the memos to the Senate until 1:45, just 15 minutes before the hearing began.

Edwards's questioning would have been an impressive performance if he had days to prepare. It would have been extraordinarily impressive had he gotten the memo at 1:45 and worked on his questioning until he actually confronted Pickering a little before 5:00 p.m. But Edwards did not even have that long to prepare in what was quite a busy day. He presided over the Senate from roughly 2:00 p.m. until 3:00 p.m. He was back on the floor of the Senate for a vote about 3:15 p.m., and also spent time there chatting with fellow senators. He attended a closed Senate Intelligence Committee business meeting that lasted until about 4:00 p.m. Finally, at some point after that, he left for the Pickering hearing and began questioning the judge about 4:55 p.m. (Pickering had not seen the memos because he had been in the witness chair the whole time.)

The sheer polish of Edwards's performance led some skeptics to wonder whether he had somehow gotten an early look at the Justice Department documents, perhaps from some opponent of Pickering who happened to have access to them. That would have been highly improper, given the department's strict control over records of its internal deliberations. But Edwards says he did not get the memo until late in the day of the hearing, well after it was released, forcing him to go through the material quickly. "Very quickly," he said a few weeks after the Pickering hearing. "Very quickly. I sort of looked at them as we were going into the hearing. I had seen before that, in some of the other cases, things that concerned me, and then we got those documents that laid out in more detail some of the things that he had actually done in this particular case."

Perhaps that is what happened. There is no evidence — other than the circumstances of timing and the fact that an "obsessive preparer" like Edwards would attempt such a detailed interrogation with virtually no preparation — to conclude that anything improper happened. But Edwards's performance, whether spontaneous or not, suggests that Republicans might do well to look closely into his record, both as a trial lawyer and as a senator. A man willing to do what he did to Pickering might not be quite the good guy he says he is.