Several senators questioned Pickering about a 1994 cross-burning case in which Pickering went to extraordinary lengths on behalf of one of the defendants. A Feb. 11 Legal Times article noted that Senator John Edwards "questioned both Pickering's sensitivity to crimes of racial bias and the propriety of the judge's efforts to intervene."
In the case, two men and a juvenile had burned an eight-foot cross on the lawn of an interracial couple with a young child. The juvenile and one of the men, described as borderline mentally retarded, pleaded guilty and received reduced sentences. The third, described by the Justice Department as the leader of the conspiracy, refused to plead and was convicted after a trial. He faced a much more severe sentence, largely because of a mandatory minimum sentence for crimes involving arson that had been enacted by Congress. Defendants who cooperate with the prosecution and do not force the government to go to trial are routinely given reduced sentences, but Pickering took unusual and ethically questionable steps in getting the government to drop the charge with the mandatory minimum and acquiesce in a shorter sentence.
Specifically, questioning by Senator Edwards revealed that Pickering had threatened to order a new trial in the case (even though the time for such an order had expired and Pickering had no authority to order it on his own motion), ordered Justice Department lawyers to take his complaints about the proposed sentence personally to the Attorney General, and initiated an ex parte communication with a high-ranking Justice Department official to complain about the case. A Justice Department letter released after the hearing revealed a series of "off-the-record" efforts by Pickering to pursue his complaints, including a direct phone call by him to the home of one prosecutor the day after New Years' Day, 1995. Senator Edwards expressed serious concern that Judge Pickering had violated Rule 3.A.4 of the Code of Conduct for U.S. Judges, which specifically forbids ex parte contacts between a judge and attorneys for one side of a case about that case.
Pickering tried to justify his actions, focusing on his concern about the disparity in sentencing for the three defendants, but Senators clearly remained troubled. Although Pickering had referred to the cross-burning as reprehensible, Senator Durbin was concerned about the extreme lengths to which Pickering went to assist the defendant to obtain reduced punishment for conduct - the cross-burning -- that Pickering at one point called a "drunken prank." Senator Schumer stated that Pickering's explanation concerning the sentencing disparity "doesn't wash," particularly in light of other sentencing disparities when one defendant pleads guilty in a case, the invidious nature of the crime, and the fact that Congress had established a mandatory minimum sentence that Pickering was trying to avoid. Pickering's conduct in the cross-burning case further militates against his confirmation.