The Battle Escalates
New fighting over the Charles Pickering nomination.

February 15, 2002 11:25 a.m.

n 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."