From: Steven Lubet
Professor of Law
Northwestern University School of Law
To: Hon. John Edwards
United States Senate
225 Dirksen Senate Office Building
Washington, D.C. 20510
Re: Hon. Charles W. Pickering
Dear Senator Edwards:
You have asked me to provide you with my opinion concerning certain conduct of Judge Charles W. Pickering's in the criminal case United States v. Swan. Based upon the materials you have provided me, it is my conclusion that Judge Pickering's actions raise serious questions under the Code of Conduct for United States Judges.
In particular, it appears that Judge Pickering initiated a prohibited ex parte communication in violation of Canon 3A(4). Additionally, Judge Pickering's extended efforts to reduce Swan's sentence for cross burning appear to have compromised his impartiality, taking him nearly into the realm of advocacy, thus implicating Canons 2A and 3A as well.
Ex parte communications.
Canon 3A(4) of the Code of Conduct provides that a judge shall "neither initiate nor consider ex parte communications on the merits, or procedures affecting the merits, of a pending or impending proceeding." It appears that Judge Pickering clearly violated this provision when he telephoned Assistant Attorney General Frank Hunger to discuss the "gross disparity in sentence recommended by the government" in the Swan case. Letter to Sen. Leahy. P. 3, Letter to Sen. Hatch, pp. 1-2.
This telephone call was definitely an ex parte communication, in that it involved fewer than all of the parties legally entitled to participate in discussions of the case. See Shaman, Lubet, and Alfini, Judicial Conduct and Ethics (3d. Edition 2000) p. 159. The conversation with Mr. Hunger went to the merits of the Swan case, since it concerned the government's position on the defendant's ultimate sentence. Judge Pickering testified that he addressed "the tremendous amount of disparity in this sentence" and he expressed his "frustration about the disparate treatment." Hearing transcript, pp. 126, 130. It also adressed "procedures affecting the merits," in that Judge Pickering was seeking to obtain review by the Attorney General of the decisions previously made by the line prosecutors in the case. Hearing transcript, p. 130.
As my coauthors and I explain in our treatise, ex parte communications are prohibited because they deprive the absent parties of the "right to respond to be heard." Additionally, they "suggest bias or partiality on the part of the judge." Judicial Conduct and Ethics p. 159. Consequently, "it is obviously unethical for a judge to participate in communications intended to influence the outcome of a case," and discussion need not "go to the ultimate merits" in order to violate the Code of Conduct. Thus, the ex parte discussion of sentencing was a manifest violation of Canon 3A(4).
There is a significant line of cases in which judges have been disciplined for making ex parte contacts with prosecutors in attempts "to exert their own influence on prosecutorial decisions," most often in the form of "requests for favorable treatment" for defendants. Judicial Conduct and Ethics p.164.
Given the clear nature of the violation, it is particularly disturbing to see Judge Pickering's insistence that his telephone call to Mr. Hunger was not an ex parte communication. Letter to Sen. Hatch, February 12, 2002, p. 2. Judge Pickering evidently felt strongly about obtaining a reduced sentence for Mr. Swan, so he might understandably attribute the ex parte contact to a momentary lapse in judgement. It is considerably more troubling that Judge Pickering attempts to rationalize the conduct, since that suggests that he would endorse similar communications by other judges in the future. Certainly, it would be disruptive of the judicial system if judges were regularly to initiate private conversations with prosecutors concerning "gross disparity" in sentences or similar issues.
Impropriety and the appearance of impropriety
Canon 2A provides that a judge "should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." In the same vein, Canon 3A provides that a judge "should be faithful to and maintain professional competence in the law." Judge Pickering's conduct of the Swan case raises serious concerns under both provisions, as it appears that he took exceptional steps to circumvent or disregard the law, in many ways becoming an advocate for Mr. Swan more than a judge in the case.
According to the materials, Judge Pickering used his position to exert extraordinary pressure on the prosecutors. Although he agrees that the prosecution was "probably right on the law" concerning the applicable minimum sentence1, Judge Pickering reportedly threatened that he would write a "nasty opinion" to the contrary if the prosecution would not agree to accede to a motion for a new trial on the §844 charge against Swan. Berry memorandum of November 29, 1994, p. 3.
The requirement that a judge be "faithful" to the law means that he must apply the law as he understands it, even if he does not like the result. Judges make mistakes, of course, and mere error seldom rises to the level of judicial misconduct. Here, however, Judge Pickering apparently agreed that the prosecution's interpretation was correct, but nonetheless threatened to grant a new trial as a means of obtaining the desired reduction in Swan's sentence. Such conduct is not "faithful to the law," since it blatantly ignores the court's own legal conclusions in favor of the judge's preferred outcome.
This conduct is exacerbated by three additional factors.
First, the time limit for seeking a new trial had long since expired when Judge Pickering raised the issue with the prosecutors. Rule 33, Federal Rules of Criminal Procedure. Such evident willingness to ignore the time limit does not "respect and comply with the law" and therefore does not "promote[ ] public confidence in the integrity and impartiality of the judiciary."
Second, it appears that the prospect of a new trial originated solely with Judge Pickering, and not with defense counsel. According to one of the prosecutors, the attorney for Mr. Swan had not even "made any noises about filing a motion for a new trial." Berry interview transcript, p. 19. It is also reported that Judge Pickering was cavalier about the basis for the proposed new trial, informing the prosecutors that they could select "[a]ny basis you choose." Berry memorandum of November 29, 1994, p. 3. Such conduct does not evince respect for the law.
Finally, it reported that Judge Pickering virtually assumed the role of an advocate on Mr. Swan's behalf by commenting to other assistant United States Attorneys about the case, by "imploring" the United States Attorney's Office in Jackson to change its position, and by exerting a "tremendous amount of pressure" on the Government to do the same. Berry interview transcript, p. 39. Such conduct by the court can be said to undermine public confidence in the impartiality of the judiciary.
I have based my opinions on the information contained in your letters, with the enclosures of February 20 and 22, 2002. My conclusions concerning Judge Pickering's conduct are additionally based upon my years of study in the field of Judicial Ethics. I am the coauthor of Judicial Conduct and Ethics, and I have written over 20 other articles and monographs on judicial ethics (as well as eight other books and over 40 articles on legal ethics and law practice). I have been retained by or consulted with judicial conduct organizations in Illinois, Wisconsin, Florida, Minnesota, Washington, Pennsylvania, and Nevada. I have lectured or taught on the subject of Judicial Ethics for organizations including the American Judicature Society, the Conference of Chief Justices, the Seventh Circuit Judicial Conference, the National Center for State Courts, the American Bar Association Appellate Judges Seminar, and judicial conferences in Illinois, Florida, Georgia, Wisconsin, and Indiana.
Please let me know if you have any further questions.
Very truly yours,
1 Later, Judge Pickering evidently agreed with the prosecution position that §844(h)(1) was applicable to Swan, stating "[t]his Court agrees with the Seventh Circuit that the language of the statute is unambiguous." Order of January 4, 1995, p. 5.