When Nat Hentoff starts
lobbing hand grenades at Democrats on the Senate Judiciary Committee, not to mention the
NYT editorial board, we should all perk up and take notice.
In this case, Chuck Schumer (D-NY) was the Senator leading the charge against the Bush administration's renomination of the Hon. Charles Pickering, a District Court judge for the Southern District of Mississippi, to the Fifth Circuit Court of appeals.
According to Schumer's official press release, the primary issue at stake was Pickering's unusual intervention on behalf of Daniel Swan, one of three defendants in a highly charged cross-burning case.
According to Schumer's press release, Pickering's intervention on behalf of Swan resulted in a fundamental miscarriage of justice. To whit:
Pickering, who was presiding over the trial of two men accused with burning a cross on the lawn of an inter-racial couple, wrote to the United States Department of Justice, asking for a post-trial agreement with one of the defendants so that the mandatory sentence of five years imprisonment would not apply. The defendant was ultimately sentenced to twenty seven months, only half the legal requirement.
Not so fast, says Hentoff. According to extensive investigation by both the New York Times and the Atlanta Journal-Constitution, Pickering's intervention may have been right on the money. Hentoff makes the case:
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 Swan--who owned the pickup truck used in the crime--refused 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.
This might seem completely reasonable in some quarters. After all, a cross-burning, particularly as a direct act of intimidation against specific persons carried out upon the victims' very own property, clearly constitutes an egregious hate crime. But the specific question facing Pickering was how best to mete out justice to Mr. Swan, and the facts of the case intervene again.
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."[. . .]
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."
In the final installment of the three-part series, Hentoff explains that he is motivated to continue his coverage because "in some 50 years as a reporter, I have seldom seen such reckless, unfair, and repeated attacks on a person. . ." Mr. Pickering, it turns out, was heartily endorsed for the Circuit Court position by black justice the Hon. Damon Keith (6th Circuit) and other prominent African-American figures throughout Mississippi.
No matter, on October 30th, Pickering's renomination failed to muster the 60 votes needed to quiet a promised filibuster. Perhaps this narrative requires a subtitle. . .something along the lines of "How Not to Win in the South."
