January 11, 2003
Somehow, I'm Not Surprised

Mickey Kaus says that "the fight against Judge Charles Pickering always seemed to have more to do with fund-raising and muscle-flexing by civil rights and liberal legal watchdog groups (e.g., People for the American Way) than with Pickering's unfitness for the appellate bench," citing as evidence a piece by Byron York in National Review.

But the thoughtful and straight-shooting Minute Man (Tom Maguire) looks at the situation and concludes that at this time Byron York looks "disingenuous, at best."

Somehow, I'm not surprised.

Just One Minute:

...From the WSJ:

...This race-baiting is all the more offensive because it is demonstrably false about Judge Pickering's career and a gross distortion of the 1995 case called U.S. v. Swan over which the judge presided. That case concerned three young white men who burned a cross in the yard of a mixed-race couple. If Mr. Schumer has a complaint it should be with the Clinton Justice Department, which was relaxed enough about the crime to offer the defendants plea bargains. Two--the ring-leader, who was a juvenile, and a low-IQ adult--accepted the offers and served no prison time.

The third defendant, Daniel Swan, rejected a deal that would have meant a year and a half in jail and decided to take his chances with a trial. He was convicted and, under the mandatory sentencing guidelines, received five to seven-and-a-half years. Judge Pickering got Swan's sentence reduced on the grounds that it was disproportionate to the other sentences and because Swan had no history of racial animus.

From Byron York at NRO:

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 decisions 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.

OK, a careful reading of York reveals that he never said Swan was not offered a plea deal. However, York is presenting a story, not testifying in a deposition. A bit more clarity, please.

I am familiar with the prosecutorial tactic of the "roll-up" - strike plea deals with the underlings, use their testimony to convict the biggies. I am also familiar with the idea that, if a defendant rejects the plea, he risks having the house drop on him at trial.

York should be a lot more clear about just what happened here. And the whole "racial animus" issue is tricky. But if Pickering's complaint is that, having turned down a plea deal for 1 1/2 years, Swan should have been sentenced to 2 1/2 years after conviction, well, that is not how it works on Law and Order.

Now, I am open to the possibility that many of these details were unknown to Pickering until the actual trial began. But at this point, York appears to be disingenuous at best.

Posted by DeLong at January 11, 2003 04:32 PM | Trackback

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Well, you say honest, I say confused - whatever, and thanks.

However, for completeness, I should say that I seem to be on a thirty-six hour oscillation here. I am still steaming about York, but there does seem to have been some disparity in the underlying plea deals.

From the the WSJ, it seems that Swan yurned down a 1 1/2 year plea deal. But from Crowley of TNR we get this:

Two of the men made plea-bargain deals with the prosecutors, getting off with probation and brief house detention. The third man refused a plea bargain and went to trial. He was convicted. Under federal sentencing laws, that meant he received a prison term of seven to seven-and-a-half years.

So it appears that Swan was offered a much tougher deal than the other two (which Crowley de-emphasizes), which is consistent with the theory that the Feds tried to nail the "wrong" ringleader. OTOH, the Feds also got the juvenile to plead to a felony on the earlier house shooting.

I have this weird theory that if enough details get nailed down, the big picture will become clear. But the alternative approach is gaining a certain appeal - make up one's mind, then find the facts to fit the conclusion. Quicker, more satisfying, no less conclusive. Because these "facts" just keep shuffling around, and I am running a bit low on confidence.

Presumably, spinmeisters in both camps are packaging their stories right now. However the WaPo seem to ignore Pickering today, except as it relates to Frist's talk show appearances yesterday.

Posted by: Tom Maguire on January 13, 2003 08:46 AM

"...always seemed to have more to do with fund-raising and muscle-flexing by civil rights and liberal legal watchdog groups (e.g., People for the American Way) than..."

We must wake up to the fact that much of the extremist activity of both Conservatives and Liberals is due to fund raising concerns. The serious money usually doesn’t flow unless the organization engages in fear tactics and opponent demonizing. I am convinced that any advocacy group gets at least a little wacky when a bureaucracy develops and those people wish to keep the good times rolling.

Posted by: David Thomson on January 13, 2003 11:53 AM

Have we forgotten something? This discussion has virtually nothing to do with an abstract interest in Judge Charles Pickering’s standard reasoning in sentencing convicted criminals. He is being subtly, if not overtly, accused of trying to assist a racist thug because the Judge supposedly shares his values. The debate boils down to this: do you believe that Judge Pickering secretly agrees with the Ku Klux Klan? The rest of it is superfluous and not at all relevant.

Posted by: David Thomson on January 13, 2003 12:40 PM
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