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a move to escalate the already-intense battle over the nomination
of Charles W. Pickering Sr. to a place on the Fifth Circuit Court
of Appeals, some Democrats on the Senate Judiciary Committee are
now suggesting that Pickering may have misled the committee at hearings
held February 7. Pickering strongly denies the allegation.
At issue are
statements Pickering made in response to questions from Democrat
John Edwards about a 1994 cross-burning case (see "Behind
the Democrats' Attack"). At the time, Pickering, a judge
on the federal district court in southern Mississippi, questioned
the Clinton Justice Department Civil Rights Division's decision
to make no-jail plea bargains with two of the three defendants in
the case, while recommending that the third defendant, a man named
Daniel Swan, be sentenced to seven and a half years in prison. Evidence
that emerged during the trial suggested that one of the defendants
who got off with no jail had a significant history of racial hatred,
which is an important factor in sentencing defendants convicted
under the federal hate crimes 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.
At last week's
hearing, Edwards questioned Pickering about a conversation Pickering
had with defense lawyers and prosecutors from the Civil Rights Division.
Swan had already been found guilty, and Pickering had told both
sides that he was unhappy with the government sentencing recommendation.
In the Senate questioning, Edwards alleged that Pickering was so
unhappy with the sentence that he threatened to order a new trial
for Swan.
"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?"
"I have
no recollection of having said that," Pickering answered, "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."
"Did you
have private meetings with the lawyers off the record about this
case?"
"The response
that I gave to Senator Leahy on this indicated that after —
"
"I'm not
asking about Senator Leahy," Edwards interrupted. "Did
you have private meetings with the lawyers?"
"With
both the defense counsel and the [government] counsel, I had a meeting,
yes."
"So private
meetings did take place?"
"A
private meeting took place."
"And you
deny having any discussion in that meeting about ordering a new
trial on your own motion? You deny having done that?"
"There
was a discussion on the record of a new trial on the basis of the
[jury] instructions, but I don't have a recollection of any indication
that I would do that on my own motion," Pickering said.
The documents
to which Edwards referred — and which Pickering had not seen
at the time of the hearing — were two internal Justice Department
Civil Rights Division memos. One of the memos, dated November 29,
1994, concerned the private meeting between Pickering, government
lawyers, and defense attorneys. As he had in open court, Pickering
expressed great unhappiness with the Civil Rights Division's jail
recommendation for Swan. "He said that Swan clearly must do
some time behind bars, but seven years is just too much," prosecutor
Brad Berry wrote in the memo. "Pickering said he has carefully
examined his conscience in this case, and is confident that his
discomfort with the sentence is not the product of racism."
Then Berry
addressed the issue of a new trial. Much of the conversation centered
on what was called the "844 charge," which was the part
of the charges against Swan that carried a five-year mandatory minimum
sentence (other charges against Swan made up the rest of the seven
and a half year sentencing recommendation). Pickering, according
to Berry's memo,
asked whether
the Department would agree not to oppose a motion for a new trial
on the 844 charge...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 about
applying 844 in this case, he might well leave the 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."
The paragraph
is unclear on where the motion for a new trial might come from,
but it does not say, as Edwards alleged, that Pickering threatened
to call for a new trial on his own motion. Pickering's defenders
suggest that a more reasonable reading of the paragraph would be
that Pickering was assuming that the defense, as is common in such
cases, would ask for a new trial for Swan. In addition, a later
memo, by another Justice Department lawyer, suggests that Pickering
never bullied or threatened government lawyers in any way, contrary
to Edwards's allegation. "He [Pickering] thinks the sentence
facing Swan is draconian, and he wants a way out," prosecutor
Jack Lacy wrote,
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."
He has never directly [italics in the original] asked us
to do anything...
In the same
memo, Lacy wrote that he "personally agreed with the judge
that the sentence is draconian."
Meanwhile,
in his first statement since the confirmation hearings, Pickering
has offered his own account of the issue. In a letter to Judiciary
Committee ranking Republican Orrin Hatch, Pickering writes that
he had doubts whether the five-year mandatory-minimum sentence was
applicable to the case:
In chambers,
I discussed with counsel for both parties (1) the possibility
of a motion for a new trial based on the lack of specificity of
the jury instruction on racial animus, if the government insisted
on applying the five-year mandatory minimum charge, or (2) the
possibility of a motion to set aside the verdict or dismiss the
charge of the count which carried the mandatory five-year minimum
sentence. When counsel for the government asked how this would
be accomplished, I recollect responding to him that the government
could elect the grounds. I never indicated I would grant a motion
for a new trial, sua sponte [on his own motion], and I
never indicated I would do so on whatever ground I chose.
Finally, in
his letter, Pickering cites a portion of the trial transcript in
which a lawyer for the Civil Rights Division appears to admit that
the government indeed went too easy on one of the defendants who
received a no-jail plea bargain. "The lesson that I take from
that, your honor," the lawyer said, "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."
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