Why the Senate Judiciary Committee Was Right to Reject the Confirmation of Charles W. Pickering, Sr. to the United States Court of Appeals for the Fifth Circuit

Pickering’s unethical conduct in a cross-burning case

Judge Pickering’s Feb. 7, 2002 hearing brought to light the extraordinary lengths to which he had gone on behalf of one of the defendants in a cross-burning case, exposing inappropriate judicial conduct on his part. 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,”12 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, as brought to light through court and Justice Department documents as well as questioning by Senator Edwards, 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 among 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.

In written questions submitted to Judge Pickering after the hearing, Senator Biden asked Pickering in connection with the cross-burning case, “Would you today still characterize these activities as a ‘drunken prank’ Why or why not? If your view has changed, explain why.” Judge Pickering began his written answer by denying that he had so characterized this crime: “With all due respect, I do not think that the record supports the premise that I felt the cross-burning incident was merely a ‘drunken prank.’ I have not and do not today characterize these activities as a ‘drunken prank.’” Response of Judge Charles W. Pickering, Sr. to written questions of Senator Biden, Ans. 1 (Mar. 1, 2002) (emphasis added). The record, however, is irrefutable on this point. At the sentencing hearing for one of the three defendants who had been convicted of the cross-burning, Judge Pickering stated:

Now, Mr. Thomas, I have taken in consideration, in being as lenient with you as I have been, the fact of your capacity and the fact that you obviously have been kind to members of other races, to blacks, and that you have not been a racist. . . And I feel that I have –- I’ve tried to be strong enough to send the message that this kind of conduct is not acceptable and will not be tolerated; at the same time, not to wreck your life; and to make the punishment commensurate with the drunken prank that I think it was, even though it did have racial overtones. It was a stupid thing to do, and it was something that was done –- folks just should not have to have the fear that somebody is going to be burning a cross in their front yard.

United States v. Thomas, Crim. Action No. 2:94cr3PR, Transcript of Sentencing Hearing, at 18-19 (Aug. 15, 1994) (emphasis added).

Following Judge Pickering’s Feb. 7, 2002 confirmation hearing, three independent ethics experts confirmed the serious impropriety of Pickering’s conduct in the cross-burning case. Professor Steven Lubet of Northwestern University Law School wrote that Pickering’s ex parte communication with a Department of Justice official was a “manifest violation” of the Code of Conduct. Letter of Professor Steven Lubet to Hon. John Edwards (Feb. 25, 2002), at 2. Professor John Leubsdorf of Rutgers Law School found that Pickering had “departed from his proper judicial role of impartiality,” that he had behaved “more like an usually adversarial attorney than like a judge,” and that his actions “were inappropriate and violated rules governing judicial conduct.” Letter of Professor John Leubsdorf to Senator John Edwards (Feb. 25, 2002) at 6. Professor Stephen Gillers of New York University Law School concluded that “Judge Pickering’s conduct was wrong.” Letter of Professor Stephen Gillers to Hon. John Edwards (Feb. 25, 2002), at 2. (See attached resource list for these letters on-line.)13

Judge Pickering’s supporters have attempted to defend his conduct in the cross-burning case by claiming that he was concerned about what he perceived to be a sentencing disparity among the three defendants. However, according to Professor Lubet, Judge Pickering “in more than 11 years on the bench . . . has never published any other opinion decrying disproportionate sentencing. According to the Almanac of the Federal Judiciary, he is best known for increasing sentences rather than lowering them.” S. Lubet, “The Judge and the Cross Burner,” Baltimore Sun (Feb. 28, 2002). Most important, apart from the fact that sentencing disparities routinely exist among defendants who accept responsibility, plead guilty, and spare the government the expense of trial and those who do not, it was improper for Judge Pickering to address whatever concerns he may have had through unethical conduct. As Professor Leubsdorf wrote, “Whatever Judge Pickering’s motives may have been, this was no way for a judge to behave.” Letter of Professor John Leubsdorf to Hon. John Edwards (Feb. 25, 2002), at 1.

Several weeks after Judge Pickering’s Feb. 7, 2002 hearing, Brenda Polkey, one of the victims in the cross-burning case, wrote to Senator Leahy to express her “profound disappointment in learning of Judge Pickering’s actions toward the defendant, Daniel Swan,” whose sentence Pickering had gone to such lengths to reduce. Mrs. Polkey described how her family had “suffered horribly” as a result of the cross-burning on their lawn. She explained that, as a native southerner who had grown up during the racial violence of the 1960s and lost a family member due to a racial killing, she “never imagined that violence based on racism would come my way again in the 1990s.” Prior to learning what Judge Pickering had done, she had been heartened that the individuals who had burned a cross on her lawn had been brought to justice, stating that “I experienced incredible feelings of relief and faith in the justice system when the predominantly white Mississippi jury convicted Daniel Swan for all three civil rights crimes.” She went on to state that “My faith in the justice system was destroyed, however, when I learned about Judge Pickering’s efforts to reduce the sentence of Mr. Swan. . . . I am astonished that the judge would have gone to such lengths to thwart the judgment of the jury and to reduce the sentence of a person who caused so much harm to me and my family. I am very much opposed to any effort to promote Judge Pickering to a higher court.” Letter from Brenda Polkey to Senator Patrick Leahy (Mar. 5, 2002).

Senator Cantwell referred specifically to Mrs. Polkey’s disillusionment with the justice system in explaining the reasons why Judge Pickering should not be confirmed, stating that “this committee should work very hard to protect the faith that the public has in our judicial system.”14 Indeed, virtually every Senator who voted not to confirm Judge Pickering specifically mentioned his conduct in the cross-burning case as one of the reasons why he should not be confirmed. Senator Kennedy, for example, explained that “Judge Pickering’s conduct in presiding over the cross-burning case in 1994 encapsulates all of my concerns about his temperament, his willingness to follow the law as opposed to his personal opinion, and his fairness in civil rights cases.”15 And Senator Durbin explained that Judge Pickering’s conduct was disturbing not only as a matter of judicial ethics but also as a matter of judicial activism, stating that “I can think of no clearer case of judicial activism than a judge who after a jury conviction refuses to impose a mandatory minimum sentence because he does not personally agree with the Justice Department’s exercise of prosecutorial discretion.”16

12  Department of Justice Memorandum from Brad Berry to Linda Davis, Chief, Criminal Section, Civil Rights Division (Nov. 29, 1994), at 2.
13  Law professor Michael I. Krauss of George Mason University Law School provided a post-hearing letter to Senator Hatch confined to Krauss’ examination of two documents signed by Judge Pickering related to the cross-burning case –- an order by Judge Pickering dated Jan. 4, 1995, and a Feb. 8, 2002 letter from Pickering to Senator Leahy concerning the case. Prof. Krauss opined that “neither of these documents provide any evidence of unethical behavior by Judge Pickering.” Letter from Michael I. Krauss to Senator Orrin Hatch (Feb. 11, 2002), at 1. In his confined view of the matter, Prof. Krauss did not mention or consider some of the facts, including, for example, Judge Pickering’s ex parte telephone call to the home of one of the prosecutors the day after New Year’s Day, 1995. Also, Prof. Krauss gave his view of the ethics of only three isolated instances of Judge Pickering’s conduct during the case, and did not evaluate the Judge’s conduct overall in determining whether, for example, Judge Pickering had impermissibly crossed the line from being a neutral magistrate to an advocate for one of the parties, as others had concluded he had.
14  United States Senate, Committee on the Judiciary, Committee Business, Unofficial Transcript at 85 (Mar. 14, 2002).
15  Statement of Senator Edward M. Kennedy Regarding the Nomination of Judge Charles W. Pickering to the Fifth Circuit Court, at 2 (Mar. 14, 2002).
16  United States Senate, Committee on the Judiciary, Committee Business, Unofficial Transcript at 75 (Mar. 14, 2002).

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