Federal District Court Judge Charles W. Pickering Sr. was angry that a 20-year-old man convicted of burning a cross on an interracial couple's lawn faced a lengthy prison term under mandatory federal sentencing rules.
"They're wanting seven years for a young man that got drunk," Pickering said, referring to prosecutors at the Justice Department's Civil Rights Division. He went on to affirm in open court nine years ago that the defendant, Daniel Swan, "committed a reprehensible crime . . . and he's going to pay a price for it."
But Pickering was so incensed about the length of the sentence that he telephoned a friend at the department's headquarters in Washington, and demanded in a sealed order that Attorney General Janet Reno review the case. According to a Justice Department memo obtained by The Washington Post, he also threatened to overturn the jury's verdict even though he agreed it was lawful.
Pickering's pressure on the government in the case -- highly unusual for a federal judge -- has sown controversy over his nomination by President Bush to the U.S. Court of Appeals for the 5th Circuit; Senate Republicans are hoping to schedule a hearing on the nomination in the coming weeks. A detailed review by The Post outlines Pickering's activity in the case and shows a discrepancy between court records and his publicly stated rationale for intervening.
The review also shows a judge who is not shy about expressing his opinions from the bench, and is in many ways a model of the type of conservative Bush has sought out to refashion the federal judiciary. Many of Bush's nominees have sometimes been skeptical of federal laws and enforcement actions they see as intruding on local prerogatives, and they are at the center of a bitter battle in the Senate, where Democrats have filibustered, or blocked, two appeals-court nominees.
"This president has been more consistent and insistent than, say, Ford or Reagan" in appointing such ideological conservatives to the bench, said Geoffrey Hazard, a University of Pennsylvania law professor and specialist in legal ethics.
Pickering is a former Republican Party state chairman, a onetime head of the Mississippi Baptist Convention, a critic of congressional efforts to mandate uniform federal sentences and an opponent of abortion and what he calls "extensions" of federal judicial power. From the bench, he has repeatedly assailed what he calls "frivolous" lawsuits, especially petitions by prisoners alleging unlawful incarceration and workers alleging employment discrimination.
At the same time, Pickering -- unlike the filibustered nominees -- has been dogged by questions about his political experience and record on racial issues. As a young politician, Pickering was closely allied with Mississippi's segregationist leadership, a history he has sought to minimize. Today, African Americans here say he is not a racist, but was not an active proponent of civil rights, a record he acknowledges to friends.
In the cross-burning case, Pickering's pressure led the Justice Department to take the extraordinary step of withdrawing one of the three criminal charges of which Swan had been convicted, which reduced his sentence from more than seven years to 27 months. Democratic members of the Senate Judiciary Committee cited the judge's handling of the case as their principal reason for rejecting his nomination last year.
Bush, several months after telling an audience in Jackson, Miss., that "the Senate did wrong by Judge Pickering," renominated him in January.
The judge is one of 19 Bush nominees to lifetime seats on the 11 federal appeals courts that the Senate has not approved; 23 other Bush nominees have been confirmed. Pickering's Republican backers in the Senate have vowed to organize another hearing on his nomination, which would put his record under the Judiciary Committee's scrutiny a third time.
Legacy of the South
The Senate debate over Pickering hinges partly on his links to the racial legacy of the South, and of Mississippi in particular. Pickering's birthplace, Jones County, became notorious in the 1960s as the base of operations for Sam Bowers, who organized a violent wing of the Ku Klux Klan that enjoyed remarkable impunity then for murders, arsons and hundreds of assaults.
Pickering, the son of a dairy farmer, graduated first in his class at the University of Mississippi law school in 1961 and joined a private firm with two other local attorneys, including J. Carroll Gartin, a former lieutenant governor and self-described "total and complete advocate of absolute segregation." Gartin was also a founding member of the Mississippi Sovereignty Commission, a state-funded group that spied on opponents of segregation and sometimes sanctioned violence.
In a confirmation hearing in February 2002, Pickering said that Gartin's segregationist views were typical. "It is not right, no, but it recognizes the reality of where they were at that particular time," he said.
During a 1990 hearing on his nomination to his current judgeship, Pickering said he had never had any contact with the Sovereignty Commission, but commission records include a 1972 memo saying that Pickering and four other politicians were "very interested" in the commission's probe of a liberal group's involvement in a local labor dispute and "requested to be advised of developments."
Last year, Pickering told the Judiciary Committee that his memory was faulty and said the contact was fleeting.
After a wave of Klan bombings and shootings in 1965 targeting both whites and blacks began to undermine the town of Laurel's economy, Pickering and several other officials signed a public protest against the violence. It included an endorsement of segregation. "While we believe in continuing our Southern way of life . . . law and order must prevail," it said.
Asked about this record, Pickering's son, Rep. Charles W. "Chip" Pickering Jr. (R-Miss.), drew a distinction between his father's remarks and views before and after the Klan violence reached a climax in 1967. "He came from accepting the way of life and cultural norms of his youth" to arrive at a crossroads that year "in what he was willing to do," Chip Pickering said.
Specifically, he testified in Bowers's first murder trial.
Pickering has said his decision to testify endangered his family and threatened his position in the community. Sen. Mitch McConnell (R-Ky.) said his testimony took "extraordinary courage."
The testimony, which Pickering gave under subpoena, consisted of a two-word answer to the question of whether Bowers had a good or bad reputation for violence. "It's bad," Pickering said.
The trial record also shows that other officials undertook the same risks by testifying to Bowers's reputation for violence, including a local bank president, the head of the chamber of commerce, an owner of one of the area's biggest companies, a lawyer, the county sheriff, two deputy sheriffs, a local police officer and four state patrolmen. The trial ended with a hung jury.
"Things have changed since the 1960s and '70s. All of us have changed. Mississippi has changed," Pickering said in a letter to Sen. Joseph R. Biden Jr. (D-Del.) last year. "I think all of us have matured in our views toward race. I certainly have."
Some of his opponents have focused on the Swan cross-burning case because it took place not in the 1960s or '70s, but in 1994.
A Fire in the Night
The case began with a night of idle drinking on Jan. 8 of that year. Several men were warming themselves around an oil-drum fire outside a general store in Improve, Miss., part of a hardscrabble timber-producing region west of Hattiesburg. Among them were Jason Branch, then 17; Mickey Thomas, 25, who was said to have limited mental capacity; and Daniel Swan, 20, a part-time construction worker.
At some point, according to their testimony, Swan and Branch discussed burning a cross to intimidate Brenda and Ernest Polkey, Walthall County's sole interracial couple, who lived two miles south of the store.
Ernest Polkey, who is white, and Brenda, who is black, were already on edge because someone -- Branch later admitted in court that he did it -- had fired a rifle shot into their living room three months earlier, near where their infant daughter slept.
According to their testimony, Swan and Branch drove to Swan's farm and picked up some old boards, nails and a jug filled with gasoline. They returned to the general store parking lot, where they built a cross six feet across and eight feet high and doused it with fuel, all the while using racial epithets, Thomas testified.
About 3 a.m., according to court testimony, Branch, Swan and Thomas drove to the Polkeys' home. After Swan and Thomas propped the cross against a tree in their front yard, Swan handed his lighter to Branch, who ignited the fuel. They ran to Swan's truck and drove back to the store.
Ernest Polkey found the burned cross in the yard at 7 a.m., while walking his dog. A police deputy who arrived shortly afterward said he found Polkey furious and in tears.
Cross-burning has been a federal crime punishable by at least seven years' imprisonment since 1987, and Swan, Branch and Thomas were arrested after a probe by the FBI. In their court testimony, Swan and Branch blamed each other for instigating the crime. Thomas did not address the issue.
Branch said in court that he was angry at the Polkeys' marriage, and wanted to scare them into moving away, which they eventually did. A friend of Swan's, Laurie Milton, testified that Swan said afterward he "just didn't like niggers."
But Swan denied saying that, explaining that "I was just pulling a prank. I wasn't meaning anything by it." He also said that "to hear all the old men talk about it, it wasn't" any worse than trespassing. In a recent interview, he said the federal charges made "everybody around here mad." Federal prosecutors quickly struck an agreement under which Thomas would be sentenced to six months' home confinement because of his reduced mental capacity; Branch -- still considered a juvenile, and so not subject to the minimum sentence -- would be sentenced to six months' home confinement in exchange for pleading guilty and testifying against Swan.
It was after Swan's conviction that Pickering began pressing the Justice Department to reduce the federally mandated sentence.
Concerns of the Court
Chip Pickering, in a news release, has blamed the Clinton administration for approving Branch's sentence "before determining the history of racial hatred and violence of all three." The senior Pickering told the Judiciary Committee last year he was unaware that Branch had fired a gun into the Polkeys' home "at the time that the plea was taken," and he chastised the government for declining to "prosecute him on that."
But the record makes clear that Pickering approved Branch's sentence on Aug. 24, 1994, three months after Swan's trial aired the allegations against all three men. In addition, the sentencing document -- which bears Pickering's signature -- included Branch's admission of guilt for the shooting.
Pickering's defenders concede that the judge misspoke, but say it was accidental and he had not reviewed the Branch case -- which was more than seven years old -- before his testimony. They also say that Pickering remains convinced that prosecutors didn't give him the whole picture, and that he relied on their recommendation in sentencing Branch.
Pickering did not raise his concerns about Swan's sentence until a hearing on Nov. 15, 1994, when he chastised Justice Department attorney Bradford Berry for saying, in effect, "you've got to do this," according to a transcript. Pickering went on to assail "the courts and the Congress . . . [for being] out of touch with the reality in the real world." He noted that the Polkeys had not been awakened by the cross-burning and said he concluded from the testimony that Branch, not Swan, had instigated the crime.
In a closed-door meeting with federal prosecutors, Pickering added another concern: "In the current racial climate in that part of the state, such a harsh sentence would serve only to divide the community," he said, according to a written summary of the meeting by Berry. Questioned by Biden last year about the meaning of that phrase, Pickering answered that "if whites perceive something is excessive in regard to race or racial matters, that . . . hinders the advancement of good race relations."
On Jan. 2, 1995, Pickering called U.S. Attorney Jack B. Lacy Jr. at home to renew his complaint; Lacy wrote a memo several days later saying, "he was not pleasant on the telephone."
On Jan. 4, Pickering signed the sealed order demanding that Reno review the case and repeating that "the record is devoid of any general attitude of racial animosity" by Swan. He called the affair "the most egregious instance of disproportionate sentencing recommended by the government in any case pending before this court."
The U.S. attorneys in the case replied, in essence, that Swan had indeed instigated the crime; he had gambled on a trial and lost; and the sentencing guidelines -- established under congressional authority -- had deliberately left no room for maneuver. Berry told the Judiciary Committee in a private interview last year, "I couldn't see how we could have a situation where, post-conviction, we are dropping counts where the defendant has been convicted."
But that is what Pickering demanded in a private meeting with the U.S. attorneys, and he threatened to otherwise "entertain a motion for a new trial," Berry told the committee, affirming what he had written in a memo dated Jan. 5, 1995.
Asked about the basis for such a motion, Pickering said, "any basis you choose," Berry said.
At his confirmation hearing last year, Pickering said, "I don't have any recollection" of discussing such a motion in private.
Pickering also raised his concerns with a friend from Mississippi at the Justice Department, Assistant Attorney General Frank Hunger, who replied that the case was not his responsibility. But by Jan. 23, 1995, the Justice Department agreed to withdraw the charge of felonious arson.
"Sometimes, youthful pranks under the influence of alcohol on a cold winter night can get you in a heap of trouble. And that's what happened," Pickering told Swan at his sentencing that day.
Last year, Brenda Polkey wrote to the Senate Judiciary Committee to express her disappointment with the reduced sentence, explaining that she had lost a family member in a racial killing and never imagined that "violence based on racism would come my way again in the 1990s."
Law professors from Rutgers, Northwestern and New York universities wrote last year to Sen. Patrick J. Leahy (Vt.), the committee's senior Democrat, to say that Pickering's contact with Hunger had violated judicial ethics. "The judge is not supposed to contact one side unless there is an emergency," said Erwin Chemerinsky, a constitutional law professor at the University of Southern California.
At his hearing, the judge told Sen. Dianne Feinstein (D-Calif.) that he only "wanted to vent with someone the frustration that I was experiencing in not being able to get a response" to his complaints. "I did not consider it to be a violation of the code of conduct," he said.
A Civil Rights Battleground
The 5th Circuit has jurisdiction over cases originating in Mississippi, Louisiana and Texas -- a circuit that includes more minority residents than any other, 43 percent of the states' total population. This had made the court a particular battleground on civil rights issues.
Among the court's 15 current, active members, one is black and three are Latino. Eleven members were appointed by Republican presidents. Three nominees by President Bill Clinton were blocked from getting a hearing by the Republican-led Judiciary Committee. Both sides agree that this history partly explains the Democrats' anger over Pickering's nomination and their filibuster against another Bush nominee for the panel, Texas Supreme Court Justice Priscilla R. Owen.
Chip Pickering has waged a vigorous campaign for his father's reputation from his office in the Cannon House Office Building, distributing media packets reciting the elder Pickering's hiring of a black Republican Party worker in 1976; his decision to keep his children in integrated public schools; his efforts to give lighter sentences to several African American defendants; and a range of endorsements from Baptist pastors and both Democratic and Republican public officials in Mississippi.
Chip Pickering confirmed that he has also been telling prominent African Americans in the state that if his father is promoted to the appeals court, his replacement on the district court will likely be Judge Johnny Williams, an African American state court judge who is popular among whites.
The Judiciary Committee has received letters from Mississippi lawyers endorsing Pickering that the judge has said he solicited directly, a practice that attracted criticism at his hearing. Pickering requested that the letters, including some from present or former litigants in his court, be faxed directly to his chambers.
Asked by Sen. Russell Feingold (D-Wis.) whether his requests might have created "an appearance of coercion," Pickering said not everyone who wrote had appeared in his court.
"They know my reputation," he said.
Staff researcher Karl Evanzz contributed to this report.