Letters to Senator Edwards Re: Judge Pickering's Conduct

Letter from John Leubsdorf, Professor of Law, Rutgers State University School of Law

From: John Leubsdorf, Professor of Law
Judge Lacey Distinguished Scholar
Rutgers State University, School of Law
Newark Center for Law and Justice

To: Senator John Edwards
225 Dirksen Office Building
United States Senate
Washington, DC 20510-3306

Re: Judge Charles W. Pickering, Sr.

Dear Senator Edwards,

On February 20, 2002, you wrote asking for my opinion whether the actions of Judge Charles W. Pickering, Sr. In the case of United States v. Swan, Crim. No. 2:94cr3PR (S.D. Miss) were consistent with the rules governing judicial conduct and otherwise appropriate. On the basis of the documents you and your staff have provided, I conclude that they were not, for reasons stated below. In brief, Judge Pickering initiated post-trial plea bargaining in plain violation of a rule instituted to protect judicial neutrality by forbidding all judicial participation in plea discussions. In the course of his attempts to avoid imposing a criminal sentence prescribed by Congress, the Judge inappropriately: intimated that if the Government failed to cooperate he would hand down an opinion adverse to it on another issue; proposed an untimely new trial motion that he lacked jurisdiction to entertain; and sealed an opinion without adequate grounds to do so. He also initiated ex parte contacts with Government lawyers, in violation of the Code of Conduct for United States Judges. Whatever Judge Pickering's motives may have been, this was no way for a judge to behave.

Preliminarily, I note that I have been studying and teaching Legal Ethics for twenty-five years. I have taught courses in that field at law schools including those of Columbia, Cornell, and the University of California-Berkeley. I was Associated Reporter for the American Law Institute's Restatement of the Law Governing Lawyers and have published articles in the Harvard, Yale, Stanford, Texas, N.Y.U., Pennsylvania, Minnesota, Cornell, and other law reviews.

  1. Although federal judges are forbidden to participate in plea discussions, Judge Pickering initiated and pressed an attempt to negotiate a bargain based on granting the Defendant Swan a new trial, to be followed by the withdrawal of the charge of violation of 18 U.S.C. § 844(h)(1) and the imposition of maximum penalties on the two other charges of which Swan had been convicted. This was a plain violation of Federal Rule of Criminal Prosecution 11(e)(1).

    That rule directs that "The court shall not participate in any discussion between the parties concerning any such plea agreement." It has been vigorously enforced by the courts, including the Fifth Circuit where Judge Pickering sits. E.g. United States v. Adams, 634 F.2d 830 (5th Cir. 1981) (appellate court remedies violation even though neither party objected); United States v. Miles, 10 F. 3d 1135 (5th Cir. 1993) (judge who declined to accept a plea violated rule by commenting on what arrangement would be acceptable); United States v. Daigle, 63 F. 3d 346 (5th Cir. 1995) (judge wrongly indicated he would probably follow any governmental sentence reccomendation); United States v. Rodriguez, 197 F. 3d 156 (5th Cir. 1999) (improper for judge to indicate probable consequences of failure to plead guilty).

    Here, the Judge did not simply participate in plea discussions but initiated them. In a private discussion with counsel on November 15, 1994, as reported by Bradford Berry of the Department of Justice, "Pickering then asked whether the Department would agree not to oppose a motion for a new trial on the 844 charge (which trial presumably would never take place), 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." The Defendant had not sought a new trial. In effect, the Judge was acting as negotiator for the Defendant. He pursued the matter in three telephone calls to the Justice Department lawyers and in his Order of January 4, 1995, calling for a governmental response.

    In the federal courts (many states disagree) prohibiting judicial participation in plea discussions is an important safeguard for the judge's impartiality. The rule was adopted because, when a judge is involved in plea discussions, a party may feel pressured to accept an agreement and may fear that he will not be fairly tried should he refuse, while it will be hard for the judge to assess objectively any plea ultimately tendered. Fed. R. Crim. P. 11, Advisory Committee Notes (1975). As the Fifth Circuit has said: "the judge's involvement in the negotiations is apt to diminish the judge's impartiality….The judge's role seems more like an advocate for the agreement than a neutral arbiter if he joins in the negotiations." United States v. Daigle, 63 F. 3d 346, 348(5th Cir. 1995). Judge Pickering departed from his proper role as federal judge by ignoring the rule that clearly directed him to play no part in plea discussions.

  2. Unfortunately, Judge's Pickering's conduct in pursuit of the agreement he sought led him to inappropriate behavior manifesting precisely the dangers against which Rule 11 guards, as well as showing the Judge's unusual commitment to imposing his own view of a desirable sentence. The Defendant Swan had rejected the Government's plea proposal, gone to trial, and been convicted of three offenses including one (violation of 18 U.S.C. § 844(h)(1)) for which Congress had prescribed a five year mandatory sentence, longer than what the Judge considered appropriate.1 The Judge was apparently unwilling to find the statute prescribing the sentence inapplicable. Instead he departed from the normal judicial course in order to induce the Government to withdraw, after the Defendant's conviction, the charge in question.
      (a) Judge Pickering strongly intimated that, unless the Government changed its position, he would write an opinion finding against it on another issue. In other words, he sought to use his performance of his duty to declare the law as a bargaining chip to obtain withdrawal of a charge.

      In his Order of January 4, 1995, the judge said: "The Court is also concerned as to whether or not it should set aside the guilty verdict and order a new trial in which the jury would be more specifically instructed as to the animus required of the Defendants as reflected in the second Lee opinion. (6 F. 3rd 1297 at 1304 (8th Cir. 1993)). The Court is concerned that failure to do so could result in fundamental miscarriage of justice under the facts of this particular case." V The intimation is clear: unless the Government agreed to drop the 18 U.S.C. § 844(h)(1) charge with its mandatory sentence, the Judge was likely to throw out the underlying conviction for violation of 18 U.S.C. § 241 for defects in his jury instructions. If the charge was indeed defective, and if the Defendant was entitled to set aside his conviction on that ground notwithstanding his failure to seek such relief, Judge Pickering should have acted regardless of the Government's position as to 18 U.S.C. § 844(h)(1). If not, the judge should not have proposed to do so in order to secure withdrawal of the latter charge. This is just what the Daigle court feared when it warned of the consequences of judicial involvement in the plea discussions: "The judge's role seems more like and advocate for the agreement than a neutral arbiter…." 63 F.3d at 348.

      The Judge behaved somewhat similarly in the in chambers discussion of November 15, 1994, where Bradford Berry reports him as saying that "if the Department does not agree to do this [accept a new trial motion on the § 844(h)(1) charge], 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 against applying 844 in this case, he might well leave this task to the Fifth Circuit." Had Judge Pickering concluded that § 844(h)(1) does not apply to cross burning cases, it would of course been entirely proper for him to write an opinion holding so, leaving it to the Court of Appeals for the Fifth Circuit to reverse him if it disagreed. But the Judge had just said that "he thinks the Department is probably right on the law, but the result in this case would clearly be unjust." The message to counsel was that the Judge's commitment to reducing the sentence was so strong that he might well write an opinion adopting a view he thought was probably wrong on the law.

      (b) Judge Pickering twice proposed the allowance of a new trial motion that he had no jurisdiction to hear or allow. Of course, judges make procedural errors. But had one party moved for a new trial, the opposing party would have been able to object, and the Judge could have appraised the merits impartially. By improperly proposing a new trial motion as part of his contemplated plea bargain, the Judge inhibited the parties from objecting, and removed himself from the neutral position of a judge.

      Federal Rule of Criminal Procedure 33 requires a motion for a new trial in a criminal case (except one based on newly discovered evidence) to be made within seven days after the verdict unless the judge, within those days, allows further time. That time limit is jurisdictional. The judge cannot waive it. E.g., United States v. Smith, 331 U.S. 469 (1947); United States v. Brown, 587 F.2d 187 (5th Cir. 1979); United States v. Bramlett, 116 F.3d 1403 (11th Cir. 1997); see also Carlisle v. United States, 517 U.S. 416 (1996).

      This case was tried in May 1994, and the defendant filed no motion for a new trial. Nevertheless, Bradford Berry reports that on November 15, 1994, Judge Pickering "asked whether the Department would agree not to oppose a motion for a new trial on the 844 charge". And on January 4, 1995, the Judge wrote that "The Court is also concerned as to whether or not it should set aside the guilty verdict and order a new trial in which the jury would be more specifically instructed as to the animus required of the Defendant…." Had the Judge not departed from his proper role, surely he would not have proposed an action forbidden as untimely by Rule 33.

      (c) Judge Pickering sealed without adequate grounds his Order of January 4, 1995. The result was to conceal from the public the Judge's proposal of a new trial motion, his characterization of the Government's position as "absurd, illogical and ridiculous," his reference to ex parte contacts with Government counsel, and his extraordinary order that Government counsel personally discuss the case with the Attorney General and certify having done so to the Court.

      The Judge's stated reason for sealing the Order was that, because it stated the sentence of a juvenile involved in the same cross burning, it "relate[d] indirectly to a matter involving a juvenile"(Order, p. 7); but this makes little sense. 18 U.S.C. §5038 imposes secrecy on "all information and records relating to the proceeding" against a juvenile. The Order, however, was not entered in the juvenile's proceeding but in the case against Swan. In that case, the juvenile had testified in open court and had repeatedly been identified by name. (See Trial Transcript, United States v. Swan, pp. 31-76 and elsewhere) The Judge had already described his sentence in open court (Transcript, November 15, 1994, pp. 4-5, 13, 18).

      Two of the prime purposes in making criminal proceedings accessible to the public are to provide a check on arbitrary judicial action, and to reassure the public that justice is being done. E.g., Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). There are exceptions to the presumption of publicity, and room to dispute just how far they extend. Nevertheless, for a judge to seal an opinion when the primary consequence of doing so will be to conceal the Judge's own inappropriate initiatives can only add to the seriousness that must be ascribed to those initiatives. That is what happened here.

  3. On at least three occasions, Judge Pickering communicated ex parte with Government counsel about the Swan case. Each communication was initiated by the Judge himself. In December 1994, and again on January 2, 1995 the Judge telephoned Jack Lacy of the Justice Department to find out whether Washington had responded to the proposals he had advanced at the November 15, 1994 conference in chambers. When informed by MR. Lacy that "the position of the Government had not changed" (Order, p. 2), the Judge entered his Order of January 4, 1995, which was sealed but not ex parte. Soon after that, Judge Pickering telephoned Frank Hunger in Washington and "reiterated the frustration I had explained in my Order…with the disparity in sentences among the defendants recommended by the government, and expressed my frustration with the Department's failure to respond." (Judge Pickering's letter to Senator Hatch, Feb. 12, 2002, p. 1.) There may also have been other ex parte communications: a former Justice Department lawyer has stated that "Judge Pickering was commenting on this case, you know, to other Assistants in connection with other cases." (Transcript of Interview of Brad Berry, Esq., Feb. 13, 2002, p. 39.)

    A basic principle of judicial ethics is that a judge should not confer about a case with representatives of one party in the absence of those of other parties. Canon 3A(4) of the Code of Conduct for United States Judges states that "A judge should…except as authorized by law, neither initiate nor consider ex parte communications on the merits, or procedures affecting the merits, of a pending or impending proceeding….A judge may, with the consent of the parties, confer separately with the parties and their counsel in an effort to mediate or settle pending matters." There is no claim here that the Judge's communications were authorized by law. Nor were they with consent of the parties, which in any event could not have warranted an attempt to "mediate or settle" this criminal case because of Rule 11's prohibition on judicial involvement in plea discussions.

    Although Judge Pickering maintains in his letter to Senator Hatch that his communications were not about the merits of the Swan case, that position is untenable, at least as to his discussion with Frank Hunger. Nothing could go more to the merits of a criminal prosecution than the length of the sentence. When the Judge expressed his "frustration…with the disparity in sentences among the defendants recommended by the government," he was saying that the appropriate sentence should be less than the Government had recommended. That was a communication about the merits. And because that sentence was Congressionally mandated by 18 U.S.C. § 844(h)(1), a statute the Defendant had been convicted of violating, the Judge was saying that he wanted that conviction somehow removed from the case. That also goes to the merits. Moreover, because he had already been informed by Mr. Lacy "that the position of the Government had not changed" (Order, p. 2), even the Judge's expression of "frustration with the Department's failure to respond" (Letter to Senator Hatch, p.1) concerned, not a failure by the Department to state its position, but rather its failure to change that position in response to the Judge's proposals. So it too was about the merits, or at least about the procedures affecting the merits.

    All in all, I cannot escape the conclusion that Judge Pickering departed from his proper judicial role of impartiality in the Swan case to become an advocate for the sentence he considered proper. Neither Rule 11(e)(1)'s prohibition of judicial participation in plea discussions, nor Rule 33's jurisdictional time limit on new trial motions, nor Canon 3A(4)'s ban on ex parte communications, nor 18 U.S.C. § 844(h)(1)'s mandatory five year sentence discouraged his repeated efforts. He was prepared to intimate that the Government's failure to accept his proposed sentencing arrangement would lead to his ruling against it on another issue, to carry his frustration to the highest levels of the Justice Department, and to do his best to keep such behavior secret. And all this appears to have been done entirely on his own initiative, and not in response to any motion or request from the Defendant or any other party. Judge Pickering thus behaved more like an unusually adversarial attorney than like a judge. His actions were inappropriate and violated rules governing judicial conduct.

    Sincerely yours,

    John Leubsdorf
    Professor of Law
    Judge Lacey Distinguished Scholar

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