NOMINATION OF CHARLES W. PICKERING, SR., OF MISSISSIPPI, TO BE UNITED STATES CIRCUIT JUDGE FOR THE FIFTH CIRCUIT
Mr. ALEXANDER. Mr. President, I come at this differently than the Senator from Mississippi. I don't know Charles Pickering. I have met him briefly only twice. But I care about the Fifth Circuit Court of Appeals. Bridget Lipscomb and I have studied his record diligently.
Nearly 40 years ago, I was a law clerk on the Fifth Circuit for the great Judge John Minor Wisdom. I have been trying to think of something to say to the Members on the other side to help them change their minds on this nomination.
Judge Wisdom was a member of the Federal court that ordered the University of Mississippi to admit James Meredith to Ole Miss. The Fifth Circuit played a crucial role in desegregating the South. Judges Tuttle, Rives, Brown, and Wisdom were real heroes at that time. Crosses were burned in front of their homes. I will have more to say about this, but Judge Pickering is a worthy successor to the court of Judges Wisdom, Tuttle, Rives, and Brown.
While those judges were ordering the desegregation of Deep South schools, while crosses were being burned in front of their homes, Judge Pickering was enrolling his children in those same newly desegregated schools, and Judge Pickering in his hometown was testifying in court against Sam Bowers, the man the Baton Rouge Advocate called the "most violent living racist," at a time when people were killing people based on race.
Many of my generation have changed their minds about race in the South over the last 40 years. That is why the opposition to Judge Pickering to me seems so blatantly unfair. He hasn't changed his mind. There is nothing to forgive him for. There is nothing to condemn. There is nothing to excuse. He was not a product of his times. He led his times. He spoke out for racial justice. He testified against the most dangerous of the cross burners. He did it in his own hometown, with his own neighbors, at a time in our Nation's history when it was hardest to do. He stuck his neck out for civil rights.
Mr. President, will our message to the world be: Stick out your neck for civil rights for Mississippi in the 1960s and then we will cut your neck off in the Senate in 2003, all in the name of civil rights? I certainly hope not.
Charles Pickering earned this nomination. He is a worthy successor to the court of Judge Wisdom, Judge Tuttle, Judge Rives, and Judge Brown.
BREAK IN TRANSCRIPT
Mr. ALEXANDER. Mr. President, I thank the Senator from Vermont and the Senator from Utah for their generosity.
Let me remake my first point. I care about this case because I care about the Fifth Circuit Court of Appeals. Many of the Senators know or knew Judge John Minor Wisdom. They knew what a great judge he was.
They knew what the times were like in the Deep South during the 1960s and 1970s. I remember Judge Wisdom once telling me the Ku Klux Klan had burned a cross in the intersection between his home and that of Congressman Hale Boggs. Judge Wisdom said: They were getting both of us with one cross burning.
So I set out some time ago, with my staff, to look through the record of Judge Pickering to see what he has done. All the evidence is that Judge Pickering, like Judge Wisdom, like Judge Tuttle, Judge Rives, and Judge Brown, stuck his neck out for civil rights at a time when it was hardest to do. Mississippians know that.
William Winter, with whom I served, a leading former Democrat Governor, a leader for racial justice, strongly supports Judge Pickering. Frank Hunger, who served on that court with me as a law clerk back in the 1960s, President Clinton's Deputy Attorney General, Al Gore's brother-in-law, strongly supports Judge Pickering. I have lived in the South for a long time, about the same amount of time as Judge Pickering. I have learned to tell those who are racists, those who stood silently by, and those who stuck their necks out.
Let me invite my colleagues to go back with me to Mississippi, to the late 1960s. James Meredith had become the only Black to graduate from the undergraduate school at Ole Miss. Reuben Anderson, who has endorsed Judge Pickering, had become the first Black graduate of the Ole Miss Law School.
In Nashville, where I went to school at Vanderbilt, the first integrated class had just graduated from Vanderbilt University. Robert Clark became the first black elected to the Mississippi Legislature since the Reconstruction.
It was not until 1968, that the first blacks were permitted to participate in intercollegiate athletics at the University of Florida and Georgia and Tennessee and other Southeastern Conference schools.
The law had changed but there were still plenty of "colored only" signs on restroom doors in plenty old southern cities during the late 1960s. Martin Luther King was murdered in Memphis during 1968. Alabama Governor George Wallace won the Democrat primary for president in 1976 in Mississippi, and in Boston, Massachusetts.
Perhaps my colleagues saw the movie, "Mississippi Burning." That was about events during 1967 in Mississippi. Civil rights workers Goodman, Schwerner, and Chaney were murdered. They were picked up by three carloads of Klansmen, shot and their bodies were buried in a 15-foot earthen dam. In 1967, seven men were convicted of federal conspiracy charges, eight were acquitted and three received mistrials. At the time, the state of Mississippi refused to file murder charges. To this day, no one has ever been tried for those murders.
Wes Pruden, a young reporter at the time, told me he went to a Mississippi courtroom and everybody in the courtroom except the judge had a button on that said "Never." That was the environment in which Charles Pickering was living in Laurel, Mississippi in Jones County in the late 1960s.
Blacks were just beginning to serve on juries. A few Blacks voted. Schools were being desegregated one grade at a time starting with the lower grades so that older children would have less opportunity to interact socially. Race was not a theoretical issue in Laurel in the late sixties, or even a political issue. People were killing people based on race in the late 1960s in Jones County, MS.
The White Citizens Council, a group of white collar, non-violent segregationists was the country club version of resistance to integration in Laurel. Klan members were known at that time in Laurel for putting on their white robes, opening up their bibles, building a bonfire in a pasture, crossing a sword and a gun over a bible, and proceeding to burn down the home of a black person. The KKK in Laurel shot into homes and beat blacks over the head with baseball bats. One did not speak out lightly against the Klan because its members could very well be your neighbor or your co-worker.
The Klan infiltrated law enforcement departments and juries. The Klan put out fliers instructing residents not to cooperate with the FBI on cases.
Laurel was Klan territory. It was the home of Sam Bowers. Bowers had created the White Knights of the Ku Klux Klan because he believed that the regular KKK was not violent enough. The Klan was out to resist integration, but that was not enough for Sam Bowers. The White Knights set out to oppose racial integration "by any means necessary."
Since 9/11 we have heard a lot of talk about terrorists. This is not the first time we have seen terrorists in America. We had terrorists then. Sam Bowers and the White Knights of the Ku Klux Klan in Laurel, MS, were the terrorists of the 1960s. The FBI said the White Knights were responsible for at least 10 killings then. The Times of London said Bowers himself was suspected of the orchestration of 300 bombings.
According to the Baton Rouge Advocate, Sam Bowers was "America's most violent living racist."
Charles Pickering made public statements condemning Klan violence. He worked with the FBI to prosecute and stop Klan violence. In the late 1960s, Bowers came up for trial for the murder of the slain civil rights worker, Vernon Dahmer, and Judge Pickering testified publicly against Bowers.
I ask unanimous consent to submit for the record two documents. The first is a Klan newsletter from 1967 criticizing Pickering for cooperating with the FBI. The second is Bowers' own Motion for Recusal filed in Federal court, asking Pickering to remove himself from hearing a case involving Bowers because of Pickering's previous testimony against Bowers and taking credit for defeating Judge Pickering in a statewide race for attorney general.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
[From the Citizen-Patriot]
A NEWSLETTER DEDICATED TO TRUTH AND THE CHRISTIAN CIVILIZATION
"Where the Spirit of the Lord is, there is Liberty.-2 Corinthians 3:17.
When in the course of human events it becomes necessary for the Truth to be told concerning massive animal corruption in Public Office, it is the Duty of the Public Press to inform the Citizens. Unfortunately for the citizens of Jones County, J.W. West, the Chief-Communist Propagandist, not only refuses to tell the Truth, but actually takes a leading part in the direction of the evil public corruption which is strangling liberty in America. The Responsibility to Truth must there be filled by the Citizens themselves. These are the Publishers and Distributors of the Citizen-Patriot.
PUBLIC OFFICE IS A PUBLIC TRUST
Its successful administration requires from its Officials a Fear of God, rather than a fear of men, and those Officials who serve justly must be ambitious for the Glory of the Heavenly Father rather than ambitious for their own personal advancement or the advancement of some device to which they have a vested attachment. Our Father has promised and
amply demonstrated that He will prosper a Nation whose Officers serve Him. And, conversely, He will wreak vengeance and punishment upon a Nation whose officers are self-serving men pleasures. All citizens owe a high Duty to law and government, but all men owe a higher duty to our Heavenly Father, the Author of Truth and Liberty.
LET FACTS BE SUBMITTED TO A CANDID POPULATION
The Base of the Political Corruption which is sweeping our Beloved Land of America lies in the Establishment of a National Police Bureau, which brings pressure to bear upon local officials. By a calculated means of Fear and Lust for Reward, this Beast of Satan directs its pressure in such a way that the local government is, in fact, woed against the local citizens and their local interests.
The honest citizens of Jones County have recently been defrauded by certain officials in an outstanding and clear-cut example of the above, whereby the Spirit of the Law was frustrated under the Color of the form and letter of legality by the clever manipulations of Chet Dillard and Charles Pickering. Fortunately, this pair were not completely successful in their attempt to pervert justice in the Circuit Court. By the cunning use of their official positions for personal benefit they were able to operate their evil ____ before the Honorable Grand Jury; but the Honorable Trial Jurors in the Roy Strickland case saw through their scheme, and struck a blow in favor of Justice by returning a verdict of "Not Guilty."
Praise be the Blessed Name of the Heavenly Father, The Guardian of our Liberty Whose Holy Word is the only Truth and Anchor in a stormy world ruled by evil men operating under color of Law
The honest facts regarding the Roy Strickland Case are as follows:
In the late summer of 1965 a series of wholesale arrests were made in Jones County with regard to a car theft ring. These arrests were made by local officials at the urging of FBI Special Agent Bob Lee of Laurel, Miss. Lee, following standard FBI practice, misrepresented the amount of evidence which he had regarding the car thefts, and deceived the local officials in order to get them to make a larger number of arrests than his evidence would warrant. Bob Lee's motive in this was not so much to convict anyone with regard to the car thefts, but rather to bring additional underworld characters under FBI control where they could be used for criminal action and as stool pigeons. Roy Strickland was Bob Lee's chief target in this regard.
After being arrested in the late summer of 1963, Strickland was allowed and easy bond and released. Strickland was eventually arrested and indicted (and released without bond in two instances) on five separate counts of car theft which alleged to have occurred during August and September of 1965. The arrests and indictments for these offenses spanned a period form September 1963 through March 1966. At no time prior to April of 1967, however, did Dillard or Pickering make an attempt to prosecute Roy Strickland on any of these cases. They were all continued from time to time and from term to term in the Circuit Court of Jones County at the request of the prosectution. Strickland was allowed to walk out of the courtroom without even making bond on two of the indictments until early in 1967. Then, on short notice, the oldest of the five cases was quickly called up for trial on April 22, 1967.
Why? the sudden change of attitude on the part of Messers. Dillard and Pickering from that of a relaxed indulgence for a year and a half to that of a sudden, vicious persecution of Roy Strickland on charges that were nothing more than frame-ups in the first place? Let's look into the Hidden Truth which the Communist, J.W. West is trying to conceal from the citizens of Mississippi.
____ was out on bond doing work on oil rigs in Louisiana in January of 1966 when he was contacted by Ford O'Neil. O'Neil advanced a proposition to Strickland asking him to help the State Investigators and the FBI in some work to kidnap and torture a confession out to Lawrence Byrd on the Dahmer case. Ford O'Neil promised Ray Strickland that in exchange for this work, the FBI and State Investigators would pressure Chet Dillard not to prosecute Strickland on the car thefts.
Strickland agreed to assist in the Lawrence Byrd kidnap and torture, and brought in Jack Watkins, another ex-convict, who at that time was wanted for burglary and armed robbery in the Coast area. Jack Watkins was also promised immunity from his crimes by the State Investigators and FBI agents. Later, Roy Strickland, Jack Watkins, Ford O'Neil, MHSP, Steve Henderson, NHSP, Roy K. Moore, Chief Special agent, FBI, and Bill Dukes, Gulfport Special agent, FBI, got together to make final plans and arrangements for the actual kidnapping and torture of Lawrence Byrd. To show "good faith" Roy Moore gave Ford O'Neil a hundred dollars, and Ford passed it over to Roy Strickland to bind the deal. Several days later Strickland, Watkins and several others did carryout the actual kidnap and torture of Lawrence Byrd. The FBI men stood in the bushes out of sight and directed Byrd's statements while Watkins tortured Byrd. This was the confession which resulted in the arrest of a dozen or so innocent white men in the Dahmer case.
At first, it seemed that the evil plot of the FBI would succeed. J.W. West was giving them massive doses of propaganda in order to convince the men before the ever entered the courtroom and to the general public they were looking like "Lynden's Little Angels." But there was a cloud on the horizon. The plot started coming to pieces when Strickland was arrested on a drunk charge early in 1967 in Jones County. FBI Chieftan, Roy K. Moore, was getting worried about Strickland, as was Ford O'Neil. They wanted him to stay out of Jones County until after the Dahmer case was tried. Strickland was worrying them by coming back to Jones County at frequent intervals and going on drinking sprees. All during 1966 rumors had been circulating in Laurel that Strickland knew something about the Lawrence Byrd kidnap-torture, and there was an ever-present danger that Strickland might reveal the whole thing to the wrong person during one of his binges. Roy K. Moore could not rest easy as long as Roy Strickland was in Jones County, whether in or out of jail, but it was finally agreed that it was better to leave Strickland in jail, and try to ease him off to Parchman, even if it meant double crossing him.
However, Strickland began to realize that the FBI was trying to use everybody against everybody, and then betray everybody for the sole benefit and advancement of the FBI. Strickland then decided to tell the truth and take his chances in open court. He contacted the defense attorneys in the Dahmer case and gave them the full facts about the FBI-engineered kidnap and torture of Lawrence Byrd. This, and much other supporting evidence was turned over to Chet Dillard in order to obtain a just indictment for kidnapping against Roy K. Moore, Bill Duke, Ford O'Neil, Steve Hendrickson and Jack Watkins. When first given the evidence, Dillard appeared to be interested in enforcing the law without fear or favor, but when the proper FBI pressure was applied to him he caved in like a ripe watermelon, and defended the FBI men before the Grand Jury, and worked against the indictment, using trickery, lies and deceit to hobble the work of the Honest Jurors.
(The District Attorney is permitted to lie to the jurors because he is not under oath, all witnesses must testify under the oath.)
The FBI is desperately trying to suppress the truth in this case (just as they did in the Kennedy assassination) and Dillard and Pickering are Helping the FBI to conceal its crime against the people of Jones county. Roy K. Moore, Chief special Agent of the National Police Bureaucracy in Mississippi is a highly trained, brilliant, self-serving savage. The American Government means nothing to him, beyond its mechanical ability to collect taxes from honest working people, and then pay money back to him in the form of a large, comfortable, unearned salary, and present him the power and prestige of an official ruler over mankind. Roy K. Moore is a criminal who was smart enough to acquire an education and an official position BEFORE he began to prey upon the honest and productive members of the community. Now, he will, like any other criminal, threaten, beat, rob, torture, persecute and kill anyone who interferes with the advancement of his personal career, which, to him, is the "whole of the law." Truly, it may be said that these highly trained criminals of the National Police Bureaucracy are the most dangerous animals upon the face of the earth.
Understandably, weaklings such as Dillard and Pickering are afraid of the FBI, but they should realize that Public Service in America requires a Personal Sacrifice on the part of the officeholder, and that the purpose of Law in America, is Equal Justice, rather than the protection of official Bureaucratic Criminals.
Whatever his past, Roy Strickland was working on an honest job when the FBI enticed him to kidnap Lawrence Byrd. Whether or no he stole the car? He is charged with, there is little or no real evidence against him in any of them to establish his guilt. But the Supreme Injustice of the whole business is that he is being persecuted by Chet Dillard not for car theft, or contempt, or perjury, but because he told the Truth about the FBI kidnapping and torturing a "confession" out of Lawrence Byrd. Thanks to the Infinite Mercy of the Heavenly Father, the people of Jones County understand the purpose of the Law better than their Public Officials. We respectfully invite the loyal citizens of Jones County to return to the polls on Aug. 8, 1967, and have Then and There this WRIT.
[From the Citizen Patriot]
In times past, this publication has repeatedly alerted the citizens of Jones County to the danger to Life, Liberty and Property, which is posed by the continued operation of a communist newspaper under the director of the evil J.W. West.
Violence and anarchy always follow in the wake of atheists and materialistic economic claptrap which communists preach, and Laurel is no exception.
Freedom of the Press is predicated upon the press telling the truth. But, of course, West is interested in centralized power and control of the population, so he is not going to print the truth about what is going on in the Circuit Court of Jones County.
District Attorney Chet Dillard and Charles Pickering have been furnished with positive proof concerning the kidnap and beating of Lawrence Byrd in January of 1966 in Laurel, but they will not bring these facts before the Grand Jury. The facts show the following:
1. Lawrence Byrd was kidnapped under the direction of the F.B.I., with collaboration by Mississippi State Highway Patrol investigators and assistance of ex-convicts and wanted felons. The convict felons were hired and paid by the F.B.I. and promised immunity by the state investigators in order to get them to kidnap and torture Byrd.
2. The motive for the kidnap was to beat and torture Lawrence Byrd into confessing to the Dahmer incident and force him into implicating a large number of other men who are politically opposed to dictatorship. This was to enhance the prestige of the F.B.I. as an investigative organization, and to frighten the citizens of Jones County and Mississippi into submitting to dictatorship.
3. The men who arranged and conducted the Byrd kidnap were: Roy Moore, F.B.I.; Bill Dukes, F.B.I.; Steven Henderson, M.H.P.; Ford O'Neil, M.H.P.; Jack Watkins, convict felon, Roy Strickland, convict felon, and others. Dillard and Pickering have sworn affidavits in their possession, but they refuse to do their duty and present the whole body of evidence to the Jones County Grand Jury. They offer as their lame excuse that "too many important persons are involved."
Since when has the LAW been a respecter of persons?
It is high time that we found out the real truth about the American Gestapo, the F.B.I. If some "important persons" get hurt by truth that is just too bad. They are a disgrace to law enforcement.
How about 15 innocent men being thrown into Federal Prison just because they have been a political embarrassment to the police dictators and J.W. West?
How about a Laurel citizen and businessman being kidnapped and tortured into confession something he had not done?
Are you going to enforce the law without fear or favor, Messrs Dillard and Pickering, or are you going to crawl and whine at the feet of the unconstitutional national police bureaucracy? Are you going to do your duty and arrest Jack Watkins or are you going to continue to try and confuse, mislead and manipulate the Grand Jury?
Why were Dillard and Pickering so anxious to persecute old Buck, who only stole a few hundred dollars, yet so reluctant to indict the F.B.I. criminals who are stealing the life and liberty of the whole country. Which way is the money moving now?
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, HATTIESBURG, MISSISSIPPI
Sam Bowers, Katie Perrone, Michelle O'Hara, Jeff Rexroad, and Shawn O'Hara (Plaintiffs), vs. Mike Moore and the State of Mississippi (Defendants).
MOTION FOR RECUSAL
Comes now Shawn Richard O'Hara, on his behalf, and on the behalf of Sam Bowers, Michelle O'Hara, and Jeff Rexroad, asking that both Judge Charles Pickering and the honorable magistrate who is handling this civil action to remove themself as a result of some or all of the reasons listed below.
1. Both men live in Mississippi and cannot fairly hear this case, since said plaintiffs claim Mississippi has no legal state constitution, thus meaning that if either of the said judge or magistrate was licensed to practice law in said state, since there is, and was no legal state constitution, said judge and/or magistrate may not be legally licensed to practice law.
2. Specifically Judge Pickering has personally prejudiced himself against Sam Bowers by testifying against him in one of Mr. Bowers state hearing, saying Sam Bowers was an "undesirable individual."
3. Specifically Judge Pickering has prejudiced himself against Shawn O'Hara, by tainting this court document, and cannot prove Shawn O'Hara has ever filed four frivolous federal lawsuits. Therefore, the said judge has openly, intentionally, and unfairly lied against Shawn O'Hara, even though the Bible says "thou shall not lie." (See Exhibit A.)
4. In conclusion, since both Judge Charles Pickering and the honorable magistrate both live in Mississippi (a state in which its state constitution is asserted to be illegal), and because both men work together, and because Shawn O'Hara is asserting Judge Charles Pickering has been an unfair judge handling this matter, and that the said judge will never be a fair judge in a case which Sam Bowers and/or Shawn O'Hara is a part of such a case, both Judge Pickering and the federal court's magistrate are asked to remove themself from said case.
It is prayfully requested of this court, that a new federal court judge and magistrate be appointed from a northern state, or from a western state, since a southern judge will not fairly hear the issue that the State of Mississippi is operating under an illegal constitution of 1890, which all state officials are asked to swear to it, and uphold it, even though it was never ratified, voted on by the people of the State of Mississippi.
Respectfully submitted by: on behalf of Shawn Richard O'Hara, Sam Bowers, Michelle O'Hara, and Jeff Rexroad.
V. It is a well-known fact, Charles Pickering was defeated in his personal race for federal office against Thad Cockran, because Sam Bowers and his thousands of supporters throughout Mississippi worked very hard to defeat Pickering in that political race.
VII. It is a well-known fact that Sam Bowers' friends helped defeat Charles Pickering, Sr. when he ran against Bill Alian for Attorney General of the State of Mississippi.
[From Byron York, NR White House Correspondent, Jan. 9, 2003]
THE CROSS BURNING CASE: WHAT REALLY HAPPENED
In their renewed attacks on Bush appeals-court nominee Charles Pickering, Democrats have focused on Pickering's rulings in a 1994 cross-burning case. Accusing Pickering of "glaring racial insensitivity," they charge that he abused his powers as a U.S. District Court judge in Mississippi to give a light sentence to a man convicted of the crime. "Why anyone would go the whole nine yards and then some to get a lighter sentence for a convicted cross burner is beyond me," New York Democratic Sen. Charles Schumer said Wednesday. "Why anyone would do that-in 1994 and in a state with Mississippi's history-is simply mind-boggling."
But a close look at the facts of the case suggests that Pickering's actions were not only not mind-boggling but were in fact a reasonable way of handling a difficult case. Here is what happened:
The crime took place on January 9, 1994. Three men-20-year-old Daniel Swan, 25-year-old Mickey Herbert Thomas, and a 17-year-old whose name was not released because he was a juvenile-were drinking together when one of them came up with the idea that they should construct a cross and burn it in front of a house in which a white man and his black wife lived in rural Walthall County in southern Mississippi. While it is not clear who originally suggested the plan, it is known that the 17-year-old appeared to harbor some sort of hostility toward the couple; on an earlier occasion, he had fired a gun into the house (no one was hit). Neither Swan nor Thomas was involved in the shooting incident.
The men got into Swan's pickup truck, went to his barn, and gathered wood to build an eight-foot cross. They then drove to the couple's house, put up the cross, doused it with gasoline, and set it on fire.
Because the case involved a cross burning covered under the federal hate-crimes statute, local authorities immediately brought in investigators from the Clinton Justice Department's Office of Civil Rights. After the three suspects were arrested in late February, 1994, lawyers for the civil-rights office made the major decision in prosecuting the case.
In a move that baffled and later angered Judge Pickering, Civil Rights Division prosecutors early on decided to make a plea bargain with two of the three suspects. The first, Mickey Thomas, had an unusually low IQ, and prosecutors decided to reduce charges against him based on that fact. The second bargain was with the 17-year-old. Civil Rights Division lawyers allowed both men to plead guilty to misdemeanors in the cross-burning case (the juvenile also pleaded guilty to felony charges in the shooting incident). The Civil Rights Division recommended no jail time for both men.
The situation was different for the third defendant, Daniel Swan, who, like the others, faced charges under the hate-crime statute. Unlike the others, however, Swan pleaded not guilty. The law requires that the government prove the accused acted out of racial animus, and Swan, whose defense consisted mainly of the contention that he was drunk on the night of the cross burning, maintained that he simply did not have the racial animus necessary to be guilty of a hate crime under federal law.
The case went to trial in Pickering's courtroom. During the course of testimony, Pickering came to suspected the Civil Rights Division had made a plea bargain with the wrong defendant. No one questioned the Justice Department's decision to go easy on the low-IQ Thomas, but the 17-year-old was a different case. "It was established to the satisfaction of this court that although the juvenile was younger than the defendant Daniel Swan, that nevertheless the juvenile was the ring leader in the burning of the cross involved in this crime," Pickering wrote in a memorandum after the verdict. "It was clearly established that the juvenile had racial animus. . . . The court expressed both to the government and to counsel for the juvenile serious reservations about not imposing time in the Bureau of Prisons for the juvenile defendant."
In addition to the 17-year-old's role as leader, there was significant evidence, including the fact that he had once fired a shot into the mixed-race couple's home, suggesting that he had a history of violent hostility to blacks that far outweighed any racial animosity felt by Daniel Swan. Swan had no criminal record, and seven witnesses testified that they were not aware of any racial animus he might have held against black people. On the other hand, one witness testified that he believed Swan did not like blacks, and Swan admitted under questioning that he had used the "N" word in the past. In the end, Swan was found guilty-there was no doubt that he had taken an active role in the cross burning-and the Justice Department recommended that he be sentenced to seven and a half years in jail.
At that point, the Justice Department had already made a no-jail deal with the 17-year-old. When it came time to sentence Swan, Pickering questioned whether it made sense that the most-guilty defendant got off with a misdemeanor and no jail time, while a less-guilty defendant would be sentenced to seven and a half years in prison. "The recommendation of the government in this instance is clearly the most egregious instance of disproportionate sentencing recommended by the government in any case pending before this court," Pickering wrote. "The defendant [Swan] clearly had less racial animosity than the juvenile."
Compounding Pickering's concern was a conflict between two federal appeals-court rulings over the applicability of a statutory mandatory minimum sentence to the case. The Justice Department insisted that Swan be sentenced to a minimum of five years under one statute and two and a half years under a separate law. Pickering doubted whether both were applicable to the case and asked Civil Rights Division lawyers whether the same sentencing standards were used in cases in other federal circuits. The prosecutors said they would check with Washington for an answer.
Pickering set a sentencing date of January 3, 1995. As the date approached, he waited for an answer from the Justice Department. He asked in November, 1994 and received no response. He asked again in December and received no response. He asked again on January 2, the day before the sentencing, and still received no response. He delayed sentencing, and on January 4 wrote a strongly-worded order to prosecutors demanding not only that they respond to his questions but that they take the issue up personally with Attorney General Janet Reno and report back within ten days.
Shortly after issuing the order, Pickering called assistant attorney general Frank Hunger, a Mississippian and friend of Pickering's who headed the Justice Department's Civil Division at the time (Hunger was also well known as the brother-in-law of vice president Al Gore). Pickering says he called Hunger to express "my frustration with the gross disparity in sentence recommended by the government, and my inability to get a response from the Justice Department in Washington." Hunger told Pickering that the case wasn't within his area of responsibility. It appears that Hunger took no action as a result of the call. (Hunger later supported Pickering's nomination to the federal appeals courts.)
Finally, Pickering got word from Civil Rights Division prosecutors, who said they had decided to drop the demand that Swan be given the five-year minimum portion of the recommended sentence. Pickering then sentenced Swan to 27 months in jail. At the sentencing hearing, Pickering told Swan, "You're going to the penitentiary because of what you did. And it's an area that we've got to stamp out; that we've got to learn to live, races among each other. And the type of conduct that you exhibited cannot and will not be tolerated . . . . You did that which does hinder good race relations and was a despicable act . . . . I would suggest to you that during the time you're in the prison that you do some reading on race relations and maintaining good race relations and how that can be done."
So Swan went to jail, for a bit more than two years rather than seven. Every lawyer in the case-the defense attorneys, the prosecutors, and the judge-faced the difficulty of dealing with an ugly situation and determining the appropriate punishment for a bad guy and a somewhat less-bad guy. Pickering, who believed the Civil Rights Division went too easy on the 17-year-old bad guy, worked out what he believed was the best sentence for Daniel Swan. It was a real-world solution to the kind of real-world problem that the justice system deals with every day. And it was the end of the cross-burning case until Pickering was nominated by President Bush to a place on the Fifth Circuit Court of Appeals.
[From Byron York, NR White House Correspondent, Jan. 13, 2003]
THE CROSS-BURNING CASE: WHAT REALLY HAPPENED, PART II
After the publication last Thursday of "The Cross Burning Case: What Really Happened," readers have asked follow-up questions about the 1994 trial that Democrats cite to accuse federal-appeals-court-nominee Charles Pickering of "racial insensitivity." New York Sen. Charles Schumer and others charge that Pickering, a U.S. District Court judge in Mississippi who has been nominated for a place on the Fifth Circuit Court of Appeals, abused his powers to win a light sentence for a man convicted of burning a cross in the front yard of a mixed-race couple. Here are some of the questions that have been asked about the case, along with answers based on the best available information:
Why did the Clinton Justice Department give a no-jail misdemeanor plea bargain to the 17-year-old defendant-who was the ringleader in the crime, who appeared to be motivated by racial hatred, and who had on an earlier occasion fired a shot into the home of the mixed-race couple-while demanding that the other defendant, Daniel Swan-who was not the ringleader, who apparently did not share the 17-year-old's racial animus, and who had no role in the shooting incident-be sent to jail for seven and a half years?
The answer is not entirely clear; the Justice Department's prosecution memos and other internal deliberation documents are confidential, and no one who was involved in the prosecution has publicly explained the department's motives. but there is enough publicly available evidence to suggest a few conclusions. First, and most obviously, the 17-year-old agreed to plead guilty, which often helps a defendant receive a reduced sentence. (It's not clear why the Justice Department dealt with the 17-year-old as a juvenile; given the seriousness of the crime, he could have been treated as an adult.) Swan did not agree to plead guilty. While he never denied that he took part in the cross burning, he did deny that he acted out of racial animus, which is required for a heavy sentence under the federal hate crimes statute. He chose to take his chances at trial, and was convicted. At that point, there was no question he would go to prison. Pickering felt strongly that Swan should serve time, but he believed that seven-and-a-half years was too long, in light of the leniency given to the 17-year-old and the other circumstances of the case (discussed below).
Another possible explanation for the easy treatment given to the 17-year-old is that the no-jail plea offer was made by the United States Attorney's Office in Mississippi (and accepted by the defendant) before all the facts of the case were known. The government's insistence on a mandatory minimum seven-and-a-half year sentence for Swan came later, after lawyers from the Justice Department's Civil Rights Division became involved. While they wanted a stiff sentence for Swan, it appears that the Civil Rights Division lawyers also realized that letting the 17-year-old off with no jail had been a mistake. In a February 12, 2002 letter to Republican Sen. Orrin Hatch, Pickering cited the transcript of an open court session in which he told Civil Rights Division lawyer Brad Berry that he felt the Swan case was an example of disparate sentencing. Berry answered, according to the transcript cited by Pickering, that, "Perhaps the lesson-the lesson that I take from that, your Honor, is that perhaps the government should have been more tough-should have asked for a more stringent or stronger or longer sentence for the other defendants in this case."
There are also some indications that at least one Justice Department lawyer involved in the case agreed with Pickering that the department's sentencing demand for Swan was too severe. In a January 5, 1995 memo to Linda Davis, who was head of the criminal section of the Civil Rights Division, federal prosecutor Jack Lacy recounted several sessions with Pickering on the Swan issue (memo was made public as part of Pickering's confirmation hearings.) "The impulse to the conversation is always the same," Lacy wrote. "He thinks the sentence facing Swan is draconian, and he wants a way out. He has been careful to phrase his concern in such terms as, 'I wish you could suggest some way that this harsh sentence could be avoided."' Later in the letter, Lacy wrote that he "personally agreed with the judge that the sentence is draconian," but said he also reminded Pickering that Swan could have pleaded guilty but instead, "the defendant repeatedly chucked our offers in our teeth."
Finally, as the last few words of that passage suggest, it is possible that Swam-and the whole vexing case-simply made prosecutors mad. They could not undo the damage they had done by letting the 17-year-old off with no jail time, but they could compensate by meting out heavy punishment to Swan.
How did Pickering know that the 17-year-old harbored the racial animus required for a severe sentence under the hate crime statute, while Swan did not?
The first and clearest reason is the earlier incident in which the 17-year-old had fired a shot into the home of the mixed-race couple in whose yard he and Swan would later burn the cross. (The Justice Department allowed the 17-year-old to plead guilty to a felony in that incident, all as part of the no-jail plea bargain.) Swan had nothing to do with that shooting, and had no criminal record. The other evidence of racial animus came out during the sentencing phase of the trial-well after the government had agreed to the juvenile's guilty plea. This is how Pickering explained it in his February 12, 2002 letter to Hatch:
"At sentencing. . . . courts must also take into account evidence of the defendant's history. This is where the breadth of disparity in racial animus between the 17 year-old and Swan became clear. While the 17 year-old and Swan had both used the "N-word" previously, the 17 year-old's own grandmother stated that he did not like "blacks" and his own mother stated that he "hated N - - - - s." (Emphasis added.) In contrast, seven witnesses and Swan's mother stated that he had no racial animus; only one witness stated that Swan did not like African Americans, and this was disputed. Further, the 17 year-old had acted on his "hate" by fighting with African Americans at school, resulting in his suspension. Swan had neither fought with African Americans nor been suspended for any racial incident. Moreover, the 17 year-old had shot a firearm into the home of the mixed-race couple in whose yard the cross was later burned and bragged about "shooting at some N -
- - - s." Swan had never shot at or into the home of African Americans, or anyone else. In short, even though both participated in the heinous crime, the 17 year-old defendant also had a history of escalating violence motivated by the racial
hatred that culminated in his participation in the cross burning, while Swan did not."
Was Pickering's communication with the Justice Department improper?
At Pickering's second confirmation hearing, North Carolina Democratic Sen. John Edwards accused him of violating the Code of Judicial Conduct by calling top Justice Department official (and fellow Mississippian) Frank Hunger to discuss the Swan case. In that call, Pickering expressed his frustration with the Justice Department's position; Hunger told Pickering the case wasn't within his area of responsibility, and the two men ended the conversation.
The section of the Code to which Edwards referred is a rule intended to prevent judges from making secret deals with one side or another in a case. It says: "A judge should . . . neither initiate nor consider exparte communications on the merits, or procedures affecting the merits, of a pending or impending proceeding." Pickering explained to the Judiciary Committee that he had previously discussed his concerns at length with both sides in the Swan case and that the call to Hunger was a "follow-up" to see if the Justice Department was going to respond to his questions about the sentencing. None of that, he explained, touched on the merits of the case, and thus the call was not improper.
In addition, last February, Hunger, a lifelong Democrat who also happens to be Al Gore's brother-in-law, wrote a letter to the Judiciary Committee saying, "I think it appropriate that it be known that I have little or no recollection of the call. The significance of this to me is that had I felt at the time that there was anything inappropriate or improper about Judge
Pickering's call I would most assuredly remember it today." Continuing, Hunger told the committee, "I have known Judge Pickering for nearly thirty years and have the utmost respect for him as a fair-minded judge who would never knowingly do anything improper or unethical.;;
Had Pickering ever shown similar concerns about heavy sentencing of other defendants, particularly African Americans, in cases that had nothing to do with race?
On March 14, 2002, at the Judiciary Committee meeting in which Democrats killed the Pickering nomination, Sen. Edward Kennedy suggested that Pickering practiced a selective form of leniency-that he went easy on a racist cross burner and tough on everybody else, including blacks convicted of crimes in his court. One week later, on March 21, Pickering sent Hatch a letter in which he said,"I have consistently sought to keep from imposing unduly harsh penalties on young people whom I did not feel were hardened criminals." (Swan was a first-time offender.) Pickering went on to describe several cases in which "departed downward,' that is, reduced the sentences of first-time offenders from the mandatory minimums required by law.
"One case involved a 20-year-old African American male who faced a mandatory minimum five year sentence," Pickering wrote. "I departed downward to 30 months. I also recommended that he be allowed to participate in the intensive confinement program which further reduced his sentence." Pickering also described the case of a 58-year-old black man who faced a five-year mandatory sentence, plus a minimum of 46 months for a separate drug charge. Pickering again sentenced the man to 30 months. In two other cases, he threw out any jail time for men who faced prison terms of 18 and 40 months, respectively. Both defendants were black. "I have departed downward in far more cases involving African Americans than I have in cases involving white defendants," Pickering wrote.
Pickering sent Hatch the names of the cases, the case numbers, letters from the defense lawyers involved, and the phone numbers of people to call to check his account of his sentencing practices. Of course, by that time, Democrats on the committee had already killed his nomination on a straight party-line vote.
[From the Atlanta Journal-Constitution, Mar. 9, 2003]
THE CROSS-BURNING TRIAL, JUDGE'S HANDLING OF ONE CASE GAVE HIS CRITICS AMMUNITION
(By Bill Rankin)
Charles Pickering has heard hundreds of legal arguments and handed down thousands of rulings, but his judicial reputation hangs almost entirely on one explosive case.
In 1994, the federal judge put extraordinary pressure on federal prosecutors to slash the sentence of Daniel Swan, a man who had burned a cross outside an interracial couple's home in rural Mississippi. Democrats and liberal interest groups have hammered Pickering with the case, branding him as racially insensitive and unfit to serve on a federal appeals court.
"Why anyone would go the whole 9 yards, and then some, to get a lighter sentence for a convicted cross-burner is beyond me," Sen. Charles Schumer (D-N.Y.) said during a hearing on Pickering's first appeals court nomination last year. "Why
anyone would do that in 1994, and in a state with Mississippi's sad history of race relations, is simply mind-boggling."
But a review of the case by The Atlanta Journal-Constitution, part of the newspaper's broad look at Pickering's record on the bench, finds that the judge apparently acted out of a concern for fairness. Two cross-burning co-defendants, including the purported ringleader, had received far lighter sentences than Swan, and Pickering saw that as unjust.
Prosecutors would have no reason to sympathize with the judge, as it was the stiff sentence they sought that the judge was attacking. Yet an internal Justice Department account of a closed-door meeting held by Pickering shows the judge deeply troubled by the sentencing disparity.
At the same time, the Justice Department memo, written by a lawyer in the case, lends at least some support to the charges of Pickering's opponents. It depicts the judge worrying about how a harsh sentence on Swan would play in the community-presumably the white community-a factor that should be irrelevant to the pursuit of justice.
In the case, two men and a 17-year-old boy were out drinking on the night of Jan. 9, 1994. They set fire to an 8-foot-tall cross outside the Improve, Miss., home of a white man and his African-American wife.
Two defendants-Mickey Herbert Thomas and the juvenile-pleaded guilty to federal civil rights charges. Following recommendations from prosecutors, Pickering sentenced both to probation with home confinement. As it turned out, the 17-year-old was likely the instigator, who would later admit to firing a shot through the interracial couple's window.
The final defendant, Swan, 20, went to trial. He admitted being at the scene but said he was not there out of racial animosity. The jury found otherwise, convicting him on three counts. Federal prosecutors then asked Pickering to sentence Swan to 7A? years in prison.
Pickering strongly criticized the sentencing disparity. He persuaded prosecutors to drop one count in order to void one conviction that required a five-year mandatory sentence. Pickering eventually sentenced Swan to two years and three months in prison.
FAITH IN JUSTICE "DESTROYED"
That move troubled Brenda Polkey, one of the victims of the cross-burning incident. Last year, she wrote to the Senate Judiciary Committee in opposition to Pickering's appeals court nomination, fueling the Democrats' attack.
Polkey, who had lost a family member to a racial killing, said she had "experienced incredible feelings of relief and faith in the justice system" when a predominantly white jury convicted Swan.
"My faith in the justice system was destroyed, however, when I learned about Judge Pickering's efforts to reduce the sentence of Mr. Swan," she wrote. "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."
The AJC review of the judge's rulings, however, shows that Pickering-like many other federal judges who face rigid U.S. sentencing rules-has gone out of his way many times to reduce prison sentences in cases where he thought the result would be unreasonable. And many of the defendants who benefited are black.
William Moody, an African-American drug defendant, was arrested in 2000, seven years after his indictment. Authorities could not find him because he was living in New York, holding a steady job and supporting his family. Upon learning about Moody's apparent turnaround, Pickering delayed his sentencing a year, allowing his continued good behavior to be used as a basis for punishment with no prison time.
Five years earlier, in a large-scale cocaine case, Pickering learned months after sentencing black defendant Richard Evans to 12A? years in prison that prosecutors were recommending he sentence a more culpable co-defendant also an African-American, to no more than nine years. Pickering quickly vacated Evans' sentence and later sent him to prison for 10 years-five months less than what the co-defendant received.
"He has tried to treat people fairly," said Lloyd Miller, a U.S. probation officer who prepared sentencing reports in Pickering's courtroom for more than a decade. "It didn't matter whether you were black or white, whether you were a pauper or if you had money."
Pickering, who would not comment for this article pending a vote on his renomination, has said that in almost all the criminal cases that came before him involving nonviolent first offenders, he has tried to lessen their sentences.
"I have consistently sought to keep from imposing unduly harsh penalties on young people whom I did not feel were hardened criminals," Pickering wrote in a letter to Senate Judiciary Chairman Orrin Hatch (R-Utah) following his combative confirmation hearings last year.
Pickering has not addressed his reported worry about a white backlash in the cross-burning case because the Justice Department memo has not been publicized until now. But there is substantial evidence, both from his civic life and judicial record, to believe that he does not cater to white people's particular interests.
In a 1999 essay on race relations in the Jackson Clarion-Ledger, Pickering addressed racial bias in the courts, empathizing with black, not white, concerns. He counseled whites who were angry about the recent acquittal of a black murder suspect to look at the justice system from a black perspective.
White Mississippians may not realize that African-Americans are treated differently by the system, he wrote, but "it is the truth and a most disturbing one if you are black."
As a judge, Pickering has thrown out only two jury verdicts, both times because he felt the verdicts were biased against minority plaintiffs.
In one of the cases, in 1993, an African-American woman was injured at a restaurant. The jury awarded the woman only what the restaurant argued she should receive. Pickering ordered a new trial, and the second jury awarded the woman a larger judgment.
Interest groups opposing the judge maintain the cross-burning case is just part of a pattern of the judge's racially questionable rulings.
Opponents point to the Pickering's ruling involving the Voting Rights Act, an important civil rights law that mandates federal oversight of Southern elections to keep white authorities from suppressing the black vote. The law has allowed black-majority voting districts to be created in some cases, boosting the number of minorities elected to political office.
Laughlin McDonald, director of the American Civil Liberties Union's Southern regional office in Atlanta, acknowledged that Pickering had enforced the Voting Rights Act to the satisfaction of minority plaintiffs in some cases.
"But what is disturbing is the philosophy that seems to pervade his decisions," he said. "He has an obvious hostility to the federal courts getting involved in this issue."
In several cases reviewed by the AJC, Pickering did question how far the federal courts should go to resolve certain voting-rights issues. The judge wrote from the perspective of a former legislator who once had to draw lines for voting districts himself-and who still respects lawmakers' prerogatives.
In a 1993 decision, Pickering wrote at length about the history of the one-person, one-vote principle, suggesting courts may have applied it too rigidly sometimes.
The courts "should be cautions in their obtrusion into what otherwise would be a legislative manner," he wrote in denying a challenge to election districts in Forrest County, Miss.
Legislative bodies, when drawing voting districts, must consider the convenience of new districts to voters and their costs, Pickering wrote. Court rulings that ordered some districts be redrawn have shown, Pickering added, "that very few of those responsible for handing down these decisions ever had the responsibility themselves of carrying out these decisions or trying to comply with them." Pickering's application of judicial restraint is in line with that of many federal judges. Like many other jurists put on the bench by Republican presidents, Pickering appears disinclined to tinker at the margins of social dilemmas as would a more activist judge.
As such, Pickering would find himself at home at the 5th U.S. Circuit Court of Appeals, widely considered one of the more conservative appellate courts in the country.
A WILL TO GET HIS WAY
Liberal critics have complained about the judge's general conservatism. But it is questionable how much those complaints would resonate without the cross-burning case against Swan and his two co-defendants.
The case shows Pickering exerting his will and the power of the federal bench to get his way from the Justice Department's civil rights lawyers in Washington.
At trial, Swan was convicted of three counts: violating the interracial couple's civil rights, interfering with their federally protected housing rights and using fire when he committed a crime, which prosecutors said carried a mandatory, consecutive five-year sentence.
Pickering not only thought the 7A?-year sentence sought by prosecutors for Swan was unfair, but he also questioned whether a five-year mandatory sentence for one of the counts applied to the cross-burning case, as prosecutors contended. Pickering noted there was a split in the federal appeals courts on that very issue.
Pickering repeatedly asked Civil Rights Division lawyers to explain to him whether the same sentencing standards were being used in other cases across the country. After receiving no answers, Pickering demanded the issue be addressed to then-U.S. Attorney General Janet Reno. Pickering even called Vice President Al Gore's brother-in-law, Frank Hunger, a longtime friend who headed the Justice department's Civil Division, to express his frustration.
Pickering summed up his thoughts about the sentencing disparities in the cross-burning case clearly when Swan was to be sentenced on Nov. 15, 1994.
"He committed a reprehensible crime, and a jury's found that," Pickering said from the bench. "And he's going to pay a price for it. But I have never, since I've been on this bench, seen a more contradictory, inconsistent position by the government than they're taking in this case."
Bradford Berry, a civil rights prosecutor from Washington, responded by saying perhaps the Justice Department should have asked for harsher punishment against Swan's two co-defendants.
"You're the one working for the Justice Department, not me," Pickering shot back. "I didn't take that position. The Justice Department took that position."
Pickering postponed the sentencing another two months. He also called all the lawyers involved back to his chambers, without a court reporter to transcribe the discussion.
In a memo written after the meeting, Berry gave an extraordinary account of what transpired.
Pickering told the lawyers about his civil rights background, saying that while not at the forefront of the movement, he was a supporter, according to Berry's memo. Pickering said he'd testified against a Ku Klux Klan leader, had twice thrown out jury verdicts in trials when he thought the results were tainted with racism and had encouraged his son to make certain his fraternity at the University of Mississippi was not discriminating against a black student who wanted to join.
"Pickering said he has carefully examined his conscience in this case an is confident that his discomfort with the sentence is not the product of racism," berry wrote.
But Pickering also gave another reason the case disturbed him, Berry noted. The judge said that "in the current racial climate in that part of the state, such a harsh sentence would serve only to divide the community."
Pickering then asked prosecutors to consider agreeing to dismiss the count against Swan that mandated a five-year sentence. By the time prosecutors returned for Swan's sentencing two months later, they had capitulated, agreeing to drop it.
Don Samuel, former president of the Georgia Association of Criminal Defense Lawyers, who studied Berry's memo, said Pickering's aggressive posture in the cross-burning case is not uncommon among the federal judiciary.
"There are judges who want a just result and try to convince the parties to find a way that enables them to do so under the federal sentencing guidelines, which can be very harsh and rigid," Samuel said. "These things happen. Often it's very well-intentioned to get around a harsh result."
But Samuel said he found troubling Berry's account of Pickering's concern about a harsh sentence dividing the community. "That doesn't seem like a very good basis and it shouldn't be," the defense lawyer said.
University of Georgia criminal law professor Ron Carlson said the only part of the community that would be divided by such a sentence would "probably be rural white people."
But Carlson said it is unfortunate that Pickering has been condemned for his action in the cross-burnings case. "That's because this is certainly not a racist judge overseeing the cross-burning case," he said. "Quite the opposite. He's very fulsome in his condemnation."
When the sentence was finally imposed on Jan. 23, 1995, Pickering told Swan he had committed "a despicable act."
"The type of conduct you exhibited cannot and will not be tolerated," the judge said. He suggested to Swan that "during the time that you're in prison . . . do some reading on race relations and maintaining good race relations and how that can be done."