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Jewish World Review Oct. 22, 2003 / 26 Tishrei, 5764

Nat Hentoff

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Justice denied a good judge


http://www.NewsandOpinion.com | As a reporter, I've covered stories where people's reputations have been badly distorted by their opponents and then the media. One such victim, after being unequivocally cleared, plaintively asked, "Where can I go to get my reputation back?"

I have been teaching my New York University journalism students about one such classic case — the savaging of a judge who did justice — Federal Judge Charles Pickering of Mississippi. Even after his nomination to the 5th Circuit Court of Appeals was killed in the Senate Judiciary Committee by Democrats voting in lockstep, the president has renominated him.

But, once again, Democrats have trumpeted the same charges against Pickering, echoed by journalists who fail to do their own reporting and recycle the allegations in news stories and editorials.

The central accusation revolves around a 1994 case of three white Mississippians who burned a cross in front of the home of an interracial couple. Pickering tried very hard to get the Justice Department to agree to reduce the sentence of one of the defendants, Daniel Swan.

Once more, Democratic Sen. Charles Schumer of New York, the leader of the Democratic posse on the Judiciary Committee, declared righteously, "Why anyone would go the whole nine yards, and then some, to get a lighter sentence for a convicted cross-burner is beyond me."

And The New York Times, in an Oct. 1 editorial, again went after Pickering, stating that, "Judge Pickering's actions in a cross-burning case alone should disqualify him. He took up the cause of a man convicted of burning a cross on the lawn of an interracial couple. He badgered prosecutors into dropping a key charge even after the man was convicted."

What Judge Pickering actually did — in the interests of justice — has been fully documented by reporter Bill Rankin and his colleagues in the Atlantic Journal-Constitution on March 9; by Bryan York in the National Review Online on Jan. 9 and Jan. 13; and even by The New York Times's own widely respected legal issues reporter, Neil Lewis, on May 28.

In its editorial, The New York Times ignored Lewis' facts of the case, as well as a Feb. 17, 2002 story by reporter David Firestone on the clear support of Pickering's nomination by a wide range of blacks in Mississippi. Do the paper's editorial writers not trust the reporting in their own news section?

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Two of the three defendants in the cross-burning case agreed to a plea bargain, in which the Justice Department took part, that put the two men in home detention on a misdemeanor, but avoided jail time.

On the basis of the evidence, Pickering saw that the third defendant, Swan, who refused a plea bargain, went to trial. Swan was guilty, but Pickering knew he had not been the ringleader in the crime; had no previous record; and had not shown in the past the racial bias that, under the federal hate-crimes statute, would have put him away for the 7-1/2-year sentence that the Justice Department demanded Pickering impose.

It did not make sense, Pickering reasoned, that the actual ringleader — who had previously shot a rifle into the window of the interracial couple's home and had a history of fighting with blacks in school — should get no jail time while Swan would be imprisoned for 7-1/2 years.

Accordingly, Pickering, very much concerned with due process, lobbied the Justice Department, which eventually agreed — as one of its prosecutors told the judge — that imprisoning Swan for that long was "draconian." Finally, Pickering sentenced Swan to 27 months, 11 months longer than the prosecutors had offered Swan in a plea bargain. At sentencing, the judge told Swan "he had committed a despicable act."

Senate Judiciary Committee Democrats, in addition to grievously misstating the facts of the cross-burning case, have omitted any mention of the deep support for Pickering's nomination among black civil-rights leaders in Mississippi. For one of many examples in my files, Philip West, chairman of the Mississippi's Legislative Black Caucus, backs Pickering's nomination, as does the Rev. Kenneth Fairley, former president of the Forrest County Branch of the NAACP, and now state coordinator for Jesse Jackson's Rainbow Coalition. Moreover, the record shows Pickering had often reduced the sentences of black defendants in the interest of justice, contrary to Massachusetts Democratic Sen. Ted Kennedy's charge that he does this only for white defendants.

By a 10-to-9 vote (with all Democrats opposed), Judge Pickering's nomination has finally been sent to the floor for an up-or-down vote. The Democratic leadership intends to filibuster. Pickering has 55 votes on the floor, and five more are needed to break the filibuster.

Are there any Democratic members in the Senate with the decency and honesty to show Pickering that he can get his good name back as a judge who has already proved with his record — as extensively laid out in the Atlantic-Journal Constitution — that he does justice for all who come in front of him?


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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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