Behind the Democrats’ Attack
Democrats vs. Charles Pickering.

February 11, 2002 11:35 a.m.

enate Republicans will likely learn this week whether Charles Pickering, the Mississippi judge nominated by President Bush to be on the Fifth Circuit Court of Appeals, will be able to survive the attacks leveled at him by Democrats who have made his case the first judicial nomination battle of the Bush administration.

Some of Pickering's supporters are becoming increasingly pessimistic, discouraged by the intensity of the Democratic attack and the uninspiring performance of both Senate Republicans and the White House in Pickering's defense. Democrats have based much of their anti-Pickering strategy on the issue of race, accusing him of being "insensitive" and "indifferent" to critical constitutional guarantees of equal rights. It's a plan that has worked in the past against Republican nominees — it was employed most recently against Attorney General John Ashcroft — in part because it places the nominee in the defensive posture of trying to prove he is not a racist, whether or not there is any evidence to suggest that he is. Indeed, while some in the GOP have rushed to Pickering's defense, others, perhaps sensing the difficulty of the situation and not wanting to get involved, have done little to help him.

The dynamic was on full display late last Thursday afternoon when Democratic senator and presidential aspirant John Edwards, using the skills that made him a multimillionaire trial lawyer, subjected Pickering to a harsh cross-examination in which Edwards accused Pickering of being lenient on racist criminals and unethical as well. Edwards based his attack on a case which came before Pickering in 1994 in which three men were accused of burning a cross in the front yard of a mixed-race couple in southern Mississippi. While Edwards's charges sounded quite serious, a close examination of the case suggests that they were not only not accurate, but appeared designed to mislead listeners to the conclusion that Pickering is unqualified to sit on the federal bench.

Cross Purposes
The crime happened 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. 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.

On January 9, the men got into Swan's pickup truck, went to his barn, and gathered wood to built 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 either man.

The situation was different for the third defendant, Daniel Swan, who, like the others, faced charges under the hate-crime statute. 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 very 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, it appears that 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 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.

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 now.

Edwards on the Attack
At Pickering's confirmation hearing last Thursday, Democratic questioning focused mostly on issues that had been raised in a report by the liberal interest group People for the American Way. Democratic senators questioned Pickering about a law review article he wrote in the 1950s about Mississippi's interracial-marriage ban. They questioned Pickering about statements he made in the 1960s when he left the Democratic Party. And they questioned Pickering about whether he had any contact with the racist Mississippi Sovereignty Commission in the 1970s. That's the way it went until the questioning came to John Edwards.

Edwards told Pickering he wasn't going to ask questions about events that happened decades ago. "This issue is something that happened in 1994, something that's not in the distant past," Edwards said, "a case involving a cross burning that you were the trial judge for. As I understand it there were three defendants in that case, two who pled guilty and one who went to trial before you?"

"Yes, that's correct," Pickering said.

"The two who pled guilty admitted their guilt and took responsibility for their actions, is that correct?"

"Yes."

"And it is customary in criminal cases in both federal and state court to provide some leniency to those who plead guilty, participate in a plea agreement, take responsibility for their actions, as opposed to someone who denies their guilt and goes to trial, is that fair?"

"Well, the guidelines provide, senator — "

Edwards did not want to discuss sentencing guidelines. First, he suggested that during the sentencing dispute, Pickering had told one of the lawyers involved that he, Pickering, would order a new trial based on the disparity of sentences. Pickering testified that he did not say that, and Edwards did not present any evidence to support his accusation. Instead, Edwards moved on to Pickering's call to Frank Hunger, suggesting that Pickering had gone to extraordinary and unethical lengths in an effort to win leniency for Swan.

"You made a telephone call to a high ranking Justice Department official, according to the information that we have, 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 forbids judges from having substantive one-party conversations with either side in a case in order to prevent judges from making secret deals or otherwise favoring one side over 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."

Pickering paused. "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.' The case was still pending at that time, was it not?"

"It was pending," Pickering said.

"You made an ex parte communication, did you not?"

"I talked with Mr. Hunger."

"Didn't you just tell me that was an ex parte communication?"

"Well, it was ex parte from the standpoint that I was talking to him. He did not have the responsibility to make decisions in this case."

"Did you also direct the Justice Department lawyers, the line
prosecutors, to take your complaints personally to the Attorney General of the United States?"

"In the order, yes," Pickering said.

"Can you tell me, judge, in how many other cases, and if you can tell me the names of the cases, where you have, after a conviction and prior to sentencing, or subsequent to sentencing, told the lawyers in a private meeting that you would order a new trial on your own motion; contacted, on your own initiative, contrary to the Code of Judicial Conduct, a high ranking Justice Department official about a case pending before you; and third, directed line prosecutors to take your complaints personally to the Attorney General of the United States. Can I just ask you, have you ever done that in any other case?"

"May I explain my answer?" Pickering asked. "No, I have never had a case where the disparate treatment was so great as it was in this case." Pickering tried to explain the plea bargain, the 17-year-old ring leader, the seven-and-a-half-year sentence recommended for Swan, and the rest. But by that time the damage was done. As Edwards must have known, virtually no one in the audience knew the details of the cross burning case, and few, if any, would take the time to look into the matter. All they knew was that it looked like Pickering had violated the judicial code of ethics to protect a young cross-burner in Mississippi.

Lost Cause?
This week, some Republicans are making a belated effort to defend Pickering against Edwards's charges. They maintain, correctly, that Pickering's communications with the Justice Department were a normal effort to get an answer to a question which the judge wanted answered before sentencing. Similar calls — whether ex parte or not — are an everyday feature of the justice system, and not a violation of the Code of Judicial Conduct. In addition, Republicans have gathered more testimonials to Pickering's ethical standards.

But Pickering's blood is in the water. Although no Democrat on the Judiciary Committee has said how he or she will vote on the nomination, on Sunday Senate Majority Leader Tom Daschle made it clear that Pickering is in trouble. "There are some very serious questions about Mr. Pickering," Daschle told CNN. "Women's groups, civil rights organizations, a number of people have called attention to the facts that have been coming out in the last several days, and we're trying to make that judgment."

Have you made up your mind? Daschle was asked. "This is a matter that first comes before the Judiciary Committee, and they will have to make their judgment," Daschle said. "If it reaches the Senate floor, in all likelihood, I will oppose Mr. Pickering."

Now that Daschle — whose party holds a 10 to 8 majority on the Judiciary Committee — has voiced his own opposition to Pickering, it is entirely possible that the Republican defense effort will run out of steam sooner rather than later. There may be no extended battle over Pickering because Republicans are simply not in the mood to fight. Pickering is, after all, a 64-year-old man who at most will serve a few years on the bench; some GOP senators, uncomfortable at being forced into the position of discussing racial issues, are simply not inclined to go to the mat to save him. In addition, the White House, which nominated Pickering not of its own initiative but rather at the insistence of Senate Minority Leader (and Pickering friend) Trent Lott, may not be willing to fight, either.

But not defending Pickering will have its costs. If the Pickering nomination goes down, GOP insiders fear, Democrats and their supporting groups like People for the American Way will not be satisfied with a victory but will rather become emboldened for future battles, which will almost certainly include a nomination to the Supreme Court. "If they beat Pickering, that will make them more aggressive the next time, when it counts more," says one GOP aide. "Their caucus is unified, and their interest groups are unified." At least for now, Republicans are not unified, which allows charges like those made by John Edwards to go unanswered.