Letters to Senator Edwards Re: Judge Pickering's Conduct

Letter from Steven Gillers, Vice Dean and Professor of Law, New York University School of Law

From: Stephen Gillers, Vice Dean and Professor of Law
New York University School of Law

To: Honorable John Edwards
United States Senate
225 Senate Dirksen Building
Washington, D.C. 20510
Fax # 202-228-1566

Dear Senator Edwards:

I am responding to your letter of February 20, 2002. You ask my opinion about certain conduct of Federal District Judge Charles W. Pickering, Sr., who has been nominated to the United States Circuit Court of Appeals for the Fifth Circuit. Specifically, the first paragraph of your letter poses the following question with regard to this conduct: "Under the circumstances outlined below, were the actions of Judge Pickering consistent with the rules governing judicial conduct and otherwise appropriate?"

I assume familiarity with all of the facts thereafter summarized in your letter and with the materials you have sent me. My opinion addresses only your question in light of the facts contained in the materials enclosed. I offer no opinion on whether Judge Pickering should be confirmed. Many factors influence a confirmation decision. I am here addressing one set of events in Judge Pickering's career on the federal bench.

Judge Pickering exceeded his powers as the trial judge in the Swan case in a way that undermined decisions of the political branches of government - the Executive Branch and Congress. He then sealed the Order that would have fully revealed his actions, limited its distribution to counsel, and ordered those lawyers "to maintain the confidentiality of this Order." As a result, the public has not had access to the record in this case despite the presumption of access to court records.

Judge Pickering has explained the motive for his conduct as an effort to avoid and unfair disparity between the sentences received by two other defendants, who had pled guilty, and the sentence Congress had mandated for Mr. Swan, who was convicted at trial after refusing to accept a plea bargain. But by attempting to correct the perceived disparity in the way he did, Judge Pickering invaded the powers of the lawmaking and law enforcement branches of government.

After Mr. Swan rejected several plea bargain opportunities, he was convicted of all counts in the indictment. The congressionally mandated sentence (under section 844) for his act of burning a cross on the lawn of an interracial couple was five years incarceration. The sentencing guidelines indicated about two more years of incarceration for the remaining counts, to run consecutively. The two other defendants, each of whom had pled guilty to the counts of the indictment that did not carry the mandatory sentence, received, in the case of the juvenile, eight months home confinement (Transcript of sentencing hearing held 11/15/94 at p. 13), and in the case of the other defendant, home confinement and a term of probation. (Order of 1/04/95 at pp. 1-3.)

Judge Pickering had two judicial options at this point: First, he had the authority to rule that the mandatory sentence in the context of the facts of the case would be an unconstitutional sentence. The record you have sent me hints at this possibility. (Order of 1/04/95 at p. 5) Second, Judge Pickering could have concluded that Congress did not intend section 844 and its mandatory sentence to apply to cross burnings. The Eighth Circuit had so held, but the Seventh Circuit had reached the opposite conclusion. The Fifth Circuit had not ruled on the question. That freed Judge Pickering to follow the Eighth Circuit. But Judge Pickering himself appears to have concluded at one point that the Seventh Circuit was probably correct. (Order at p. 5)

I have no view on whether the Seventh Circuit or the Eighth Circuit is correct. I strongly doubt that a five year mandatory sentence for Swan would have been unconstitutional. But my point here is that either decision would have been within Judge Pickering's power as an Article III Judge. If he had ruled in either way, the Government could have appealed and the correctness of the Judge's ruling would have been reviewed by the Fifth Circuit.

Judge Pickering chose neither option. He delayed sentencing for months while taking various steps to pressure the Justice Department to accept a resolution he deemed fair but for which there appears to have been no legal basis. Specifically, Judge Pickering wanted the Government to agree not to oppose a motion for a new trial, following which the defendant would, instead of going to trial, accept a plea to a non-mandatory count. (Memorandum of 11/29/94 from Brad Berry to Linda Davis at p. 3.)

This is what eventually happened. Judge Pickering's actions led to a resolution that, unlike the two options available to Judge Pickering in his judicial capacity, were insulated against the possibility of appeal and reversal. In other words, whereas an exercise of the Judge's constitutional powers would have been subject to appellate review, the resolution Judge Pickering achieved by stepping outside the judicial role was "appeals proof." Judge Pickering, as discussed below, then took steps to keep his action secret.

Though unreviewable, Judge Pickering's conduct was wrong. Congress mandated a five year mandatory sentence for a section 844 violation (which the Seventh Circuit and apparently Judge Pickering himself believed applied to cross burnings). The Executive Branch, through the Justice Department, had convicted Mr. Swan of a section 844 violation after Mr. Swan rejected plea bargains that would not include the mandatory charge. At this point, the Court had no choice but to sentence Mr. Swan according to law for the crimes of which he was convicted.

Judge Pickering used the powers of his office to avoid this duty. He asked the Justice Department to agree not to oppose a motion for a new trial although it appears that one could not then be timely made and the defendant had made no motion. Judge Pickering offered no legal basis for granting such a motion other that his discomfort with the sentencing disparities in light of his perceptions of the defendant's relatively culpability. In seeking to achieve his objective, the Judge did the following:

  1. According to the November 29, 1994, memorandum of Mr. Berry (at p. 3), a Department lawyer from Washington who participated in Swan's trial, in an off the record chambers discussion with counsel on November 15, 1994, Judge Pickering threatened "to write a nasty opinion from our perspective, emphasizing the sentencing disparities and the injustice of applying section 844 in this case."
  2. In the sealed Order to the parties signed January 4, 1995, Judge Pickering wrote that he was "concerned whether or not [the Court] should set aside the guilty verdict and order a new trial" with a different jury instruction. (Order at p. 5.)
  3. "Shortly after" issuing his January 4 Order, Judge Pickering had an ex parte communication with a high Justice Department official, Frank Hunger, to whom he expressed his "frustration about the fact that I had instructed the attorneys to get an answer, a response, from the Department of Justice in Washington," to his request that the Department agree to a new trial. (Transcript of 2/07/02 hearing at page 130, line 23: letter to Senator Leahy of 2/06/02 at p. 3.) However, in an ex parte communication with an assistance U.S. Attorney on January 2, 1995, before the Judge's call to Mr. Hunger, the Judge had already received an "answer." He was told "that the position of the Government had not changed." (Order at p. 2.)
  4. This brings me to the Judge's January 4 Order, which was the last step in his effort to avoid the imposition of the mandatory sentence required by section 844. The Order expressed annoyance with the Government's lack of a timely response to the Judge's request on November 15 that the Government accede to a new trial motion. Yet, as the Order acknowledged, by the time of the Order, the Judge did have the Government's answer. (Id. at p. 2.) The Order then proceeded to put two kinds of pressure on the Government. It instructed Government lawyers to provide the Court, within 15 days, with a large amount of data about section 844 prosecutions. Specifically, the Judge instructed the Government lawyers to file a memorandum (Id. at p. 6.):
      Which shall analyze all cases relied upon in the brief of the Government that involved cross burnings and shall specifically set out the respective sentences of all defendants involved in those cases as to which the U.S. Government was a part and likewise provide to the Court a synopsis of all relevant facts relating to the culpability of the various defendants in those cases along with any information available relating to the racial animosity of the various defendants in those cases.

    However, this burden was imposed only if the Government "persists in its position" on a new trial motion. (Id.) The Government was ordered to report on this position within 10 days. The Order required that the trial lawyers take the matter up with the Attorney General of the United States before reporting back to the Court in their new trial position (Id.):

      Further, counsel for the Government shall specifically discuss this case and all of the contents of this Order with the Attorney General of the United States so that this Court can be assured that the approach the Government is taking is uniform throughout the country. Counsel for the Government, as officers of this Court, shall certify that this Order along with its contents has been personally discussed with the Attorney General.
  5. Finally, Judge Pickering sealed his Order. His explanation for sealing the Order was as follows (Id. at p. 7.):
      This Order does not involve any matter that has not previously been testified about in open Court, except as to the sentence of the juvenile. Since this Order does relate indirectly to a matter involving a juvenile, this Order shall be sealed by the Clerk and shall be furnished only to counsel for the parties involved who are under strict orders to maintain the confidentiality of this Order.

    The Order was unsealed on February 4, 2002, in response to the request from the Judiciary Committee. The unsealing Order, signed by Judge Tom S. Lee, concluded that it appeared "that the information contained in this Order is information that was presented or discussed in open court, relative to this defendant, who is an adult, or in the proceeding against the other co-defendant who is also an adult…."

    The primary beneficiary of the secrecy order appears to be the Judge himself. His Order was not exposed to public scrutiny at the time it issued, despite the presumption that court records, especially in criminal cases, are to be public. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (common law right to inspect and copy judicial records); SEC v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993) (same). See also Globe News Paper Co. v. Superior Court, 457 U.S. 596, 603 (1982) (constitutional right of public access to criminal trials "serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government"). The Judge's actions, which should have been accessible to the public, have remained secret for seven years and might never have been known were it not for the confirmation hearing.

    The Judge's explanation for secrecy is hard to fathom. No juvenile was identified in the Order. True, the sentence the juvenile received was contained in the Order, but it was also placed on the record in open court. (Sentencing hearing of 11/15/94 at p. 13; Order of Judge Lee dated 2/04/02.) Equally important, contrary to what Judge Pickering wrote, the Order does "involve" a matter "that has not previously been testified about in open Court." That "matter" is the Judge's own methods of seeking to cause the Justice Department to abandon its position and the Judge's effort to avoid imposing the sentence mandated by Congress. This is certainly a matter of public interest.

    The Code of Conduct for U.S. Judges tells federal judges that they "should respect and comply with the law," Canon 2A, and that they "should be faithful to…the law," Canon 3A(1). In my opinion, the law on the facts shown me obligated Judge Pickering to effectuate the congressional mandate following Mr. Swan's conviction unless the Judge chose to identify a legal basis for declining to do so. Any such basis would then have been subject to appellate review. Judge Pickering sought to achieve his goal of what he perceived to be a proportionate sentence by employing the several means described above, which succeeded, with no opportunity for appellate review. Then, through sealing and confidentiality orders, Judge Pickering made it unlikely that his actions would ever become fully public.

    Sincerely yours,

    Stephen Gillers

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