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Saturday, January 11, 2003

Now I Am Getting Annoyed [But Less So By The Last Update]

A blogger picked up by Atrios actually reads Mickey and follows the links. Why didn't I think of that?

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.

UPDATE: It does not appear that Frist rallied to Pickering's defense on the Sunday talk shows, according to "PunditWatch". But here, he seems to be more effective.

And my man Al gets lots of airtime.

UPDATE: OK, let's add Crowley of TNR into the stew:

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.

Well, the WSJ says that Swan rejected a deal that would have meant a year and a half in jail, so it appears that there was a disparity in the initial plea deals offered to the three defendants. This is consistent with the view that the Feds were focussing on the "wrong ringleader". One wonders what Swan might have done if offerred probation and house detention, and why the Feds did not offer it to him.

That said, York points out that the Feds also got a felony plea from the juvenile for the shooting incident. What was the sentence for that?

UPDATE: Some potentially comparable cross burning cases I dug up are linked here.

ANOTHER UPDATE: Are there no other journalists in the world? York again, responding to questions from fans and foes. Remind yourself to focus on fact, not spin, and you will find some nuggets here. E.g., there are several examples of cases where Pickering "departed downward" in his sentencing.

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