By Steve Weinstein
By Devon Maloney
By Tessa Stuart
By Alison Flowers
By Albert Samaha
By Jesse Jarnow
By Eric Tsetsi
By Raillan Brooks
When George W. Bush renominated Mississippi Federal District Judge Charles Pickering to the Fifth Circuit Court of Appeals, the Democratic attack machine on the Senate Judiciary Committee, People for the American Way, and other liberal watchdogs of the judiciary went after Pickering againjust as the Republican artillery pursued some of Bill Clinton's nominees.
As before, the most insistent charge against Pickering was that, presiding over a cross-burning case in Mississippi as a district judge, he had gone way out of his way to get a lighter sentence than the federal prosecutors demanded for one of the three white defendants. At the October 2 Judiciary Committee hearing on Pickering, Senator Ted Kennedy declared the judge's behavior in that case shameful.
What follow here are the facts of the case as reported by a New York Times specialist in legal issues, Neil Lewis (May 28), and Bryan York in National Review Online (January 9 and 13) and Editor & Publisher (March 3). I am indebted to Lewis and York, and did my own reporting as well. Lewis's factual reporting on this case has been ignored by Times editorial writers as they repeatedly attack Pickering's action.
On a January night about 10 years ago, three white men took an eight-foot wooden cross, put it against a cedar tree outside the home of Brenda and Earl Polkeyan interracial couple in a Mississippi community near the Louisiana borderand set it afire.
Two of the defendants, 17-year-old Jason Branch and 25-year-old Mickey Herbert Thomas, pleaded guilty, resulting in a plea bargain under which neither got any jail time, receiving instead probation and home detention. The third defendant, 20-year-old Daniel Swanwho owned the pickup truck used in the crimerefused a plea bargain and was convicted at trial.
This being a federal case, Justice Department attorneys, who had been involved in the two plea bargains, insisted that Pickering give Swan a seven-and-a-half-year sentence under the federal hate crimes statute.
Swan's defense was that he was drunk that night, had no criminal record, and there was no history of his having a marked hostility toward blacks. As York noted, "The [federal] law requires that the government prove that the accused acted out of [sufficient] racial animus [to justify] the heavy sentence."
From the evidence, Judge Pickering determined that the ringleader in the cross burning had been Branch, who, because he had accepted the Justice Department plea bargain, received no jail time.
As Lewis reported in the May 28 New York Times, "Mr. Branch . . . admitted shooting a rifle into the Polkeys' window a few months before. Mrs. Polkey was inside with her three-month-old daughter at the time. . . . Mr. Branch not only fired into the house but vowed to drive the Polkeys from the area, and had a history of fighting with blacks at school."
Knowing Branch's history of acute racial animus, Judge Pickering, as York reported, "questioned whether it made sense that [Jason Branch], the most guilty defendant, got off with a misdemeanor and no jail time, while a less-guilty defendant [Daniel Swan] would be sentenced to seven and a half years."
I don't know how many other judges around the countryin the interest of justicewould then, as Pickering did, persistently pressure the Justice Department for a lower sentence than seven and a half years for Swan.
As Lewis reported in The New York Times, "Judge Pickering told prosecutors he thought a long prison term would ruin Mr. Swan's life and noted that he was still sentencing him to more than the Justice Department had been willing to offer earlier in a plea bargain."
Finally, as York discovered (as did Lewis), one of the Justice Department prosecutors, Jack Lacy, "wrote to [Pickering] that he 'personally agreed . . . that the sentence is draconian.' But the prosecutor reminded Pickering that Swan, instead of pleading guilty, 'repeatedly chucked our efforts [the plea bargain] in our teeth.' "
It is not unusual for prosecutors to resent a defendant's insistently rejecting a plea bargain, thereby forcing the prosecution to spend time and money on the trial of that ungrateful defendant trying to prove his innocence.
At last, because of Pickering's persistence in assuring justice would be done, the Justice Department agreed to drop its "draconian" sentence. Pickering then sentenced Swan, as Lewis noted in the Times, "to 27 months, 11 months longer than prosecutors had been willing to offer in a plea bargain." At the sentencing, Pickering told Swan he had committed "a despicable act. . . .We've got to live among each other."
Lewis went on to report that "Mr. Swan has never been in trouble since getting out of prison. . . . A trucking business he started went bust, [Swan] said, after his name appeared in news accounts last year during Judge Pickering's first hearing."
There was another charge against Pickering in connection with his alleged racially insensitive "softness" in sentencing Swan. Senator Ted Kennedy accused Pickering of having a history of giving black defendants hard sentences while showing Swan, a white defendant, selective leniency.
As I wrote in the February 12-18 Voice, I have copies of letters from four lawyers in Hattiesburg, Mississippi, who represented, in four different cases, black defendants in Pickering's court. In each case, Judge Pickering made a considerable downward departure from federal sentencing guidelines. And these are not at all the only four such cases of black defendants getting reduced sentences from him.