Editorial Memorandum: Opposition to Judge Pickering and Charges of Irresponsiblity and Race-Baiting

Some individuals and media reports have criticized Sen. John Edwards and opponents of Pickering's confirmation for suggesting that Pickering's actions in a cross-burning case raised important questions about judicial behavior and ethics.

The Facts

At Pickering's February 7 hearing, several senators questioned Pickering about the extraordinary lengths to which he had gone on behalf of one of the defendants in the case. A February 11 Legal Times article reported that Senator John Edwards "questioned both Pickering's sensitivity to crimes of racial bias and the propriety of the judge's efforts to intervene."

The case concerned the burning of an eight-foot cross by two men and a juvenile 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 Year's 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.

At the hearing, 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 had gone 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.

Following the hearing, three independent ethics experts have confirmed the serious impropriety of Pickering's conduct in the cross-burning case. Prof. Steven Lubet of Northwestern University wrote that Pickering's ex parte communication was a "manifest violation" of the Code of Conduct. Prof. John Leubsdorf of Rutgers found that Pickering "departed from his proper judicial role of impartiality" and that his actions "violated rules governing judicial conduct." Prof. Stephen Gillers of New York University concluded that "Judge Pickering's conduct was wrong."

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