Book Excerpt: Clyde Kennard And Judge Pickering

Author’s note: my upcoming book, “The Warrior Princesses Vs. The  Ku Klux Klan”  features a number of chapters about my efforts to bring about justice in the Clyde Kennard case.

This sample chapter, “Judge Pickering” tells about an unlikely and under appreciated  hero of the efforts to clear the good name of Clyde Kennard.  As the chapter begins, we had seemingly run out of options. The Governor of Mississippi, Haley Barbour, had refused to grant a pardon to Clyde Kennard, the courts seemed to offer no relief, and there just did not appear to be another avenue to pursue to get justice for Clyde Kennard.

And then I had an inspiration…

 

—————————

Chapter Six: Judge Pickering

He replied, “Whether he is a sinner or not, I don’t know. One thing I do know. I was blind but now I see!”

The Gospel Of John, Chapter 9, Verse 25

 

In football they call it “throwing a Hail Mary.”  That is a desperation play; one used when the losing team seemingly has almost no chance at winning and the clock is quickly running out.

I needed a Hail Mary.  Big time.

The Mississippi Parole Board had stated they would not recommend a pardon for Clyde Kennard, because they believed that we still had other avenues available to clear his name. The only problem was that we did not know what they were and the Board would not tell us.  The situation was unprecedented and proving to be a political minefield for Gov. Barbour.  Every major media outlet in Mississippi hammered his obstinate refusal to formally clear Kennard.  His office was frustrated with the attacks, upset with ongoing deluge of e-mail and letters our website had generated, and none too pleased when a reporter quoted me as saying that he had now become “The first Governor in the entire history of the United States Of America ever to refuse to pardon a man he had publicly declared to be innocent.”

We were desperate in our efforts to find the mysterious path hidden in the thickets of Mississippi politics, law and history. Steve Drizin and his students combed endlessly through books of legal precedent, hoping to find a yet untried appeal.  Jerry did another round of interviews with experts, trying to decipher the Board’s cryptic message.  His experts were stumped as well. We all talked and e-mailed back and forth, hoping there was something obvious we were missing.  If there was, we couldn’t find it.

Early that Friday morning, I began to devise the Hail Mary.  Mona, Callie and Agnes dragged in to my classroom.  Even the normally bubbly Callie was sedate.  Their questions cut right to the chase. Was it over?  Really over? Was there nothing more that we could do?  Was it possible that we really come this far, only to be stymied on the very brink of success?  Suddenly making it to National History Day didn’t seem quite so important.

The moment that my first class of the day ended, I hid myself away in the school’s Professional Library, an oasis of quiet and calm.  I desperately needed time to think and not be bothered, so I burrowed in to my hideaway.  I needed ideas and I needed them fast.

I prayed and then, almost at once, I began generating ideas at a lightning fast clip.  Most of them were impractical, but they came so fast I was struggling to write them all down. It was like the Beatles sang: “Words are flowing out like endless rain into a paper cup”[ii]

Maybe what we needed was more media attention?  Should I try to ‘pitch’ the story one more time to “48 Hours?”  They had been interested. Should we redouble our efforts to have blogs across the country publicize our viral effort that had already generated hundreds of e-mail messages and postcards to the Governors of Illinois and Mississippi?  How about if I wrote to Kathryn Morris, the star of “Cold Case” and asked her to become our national spokesperson?  Maybe I should ask Lawrence Guyot or Julian Bond to help me convince the NAACP to organize a national boycott of Mississippi businesses and tourism? No, no, no, no.  This was a legal matter now – the solution was going to have to be found in a courthouse.

A new legal strategy.  Something that even Steve Drizin hadn’t thought of.  That’s what I needed.  And suddenly, that’s what I had!

I streaked up the stairs to the school library, asking our amazingly helpful librarians to find me examples of obscure legal references; I wanted to find a justification for getting the State’s original case moved into a Federal courtroom.  There our legal team would argue, (I imagined) that a Federal Court could rule (for any number of reasons) that Clyde Kennard’s Constitutional rights had been violated by numerous procedural errors in the first trial.  Then the Federal Court could order a new trial for Clyde Kennard – one in which he would surely be found innocent.

With one eye on the clock, as I had another class to teach in a little while, I zeroed in on the most obvious procedural error in the Kennard case.  The jury was strictly segregated, as was the common practice in Mississippi in the 1950s.  It took me just minutes to track down the decision of the Unites States Supreme Court in Norris v Alabama.  The Court had ruled, based on an appeal in the notorious ‘Scottsboro Boys’ case, that the systematic exclusion of blacks from juries was a violation of the rights of a defendant.  Perfect!   I quickly found several subsequent cases that reinforced the ‘Norris’ decision.  We now had firm legal ground on which to ask for a new trial, – or so I reasoned.

The class bell rang just as I grabbed the last pages from the printer.  What was going to happen next became crystal clear in my mind.  I’d call Steve Drizin; he’d have Bobby Owens draft a killer brief.  We’d use his associates in Mississippi to take it before a Federal Justice.  The Federal Court would rule that Clyde Kennard had been denied a fair trial and order a State Court to allow a new trial for him.

I called Steve while scurrying to my classroom through hallways choked with students unconcerned about obscure cold cases, barely balancing my laptop, notes, folders and phone.  Steve’s office at Northwestern explained that he was in court all day and I would not be able to reach him.  Darn that Drizin, I muttered.  Wasn’t that just like the crusading professor – spending time trying to get an actual living innocent man out of jail? Some priorities!  I left a message on his cell phone and entered my classroom. My hopes were as high as they had been low just an hour or two earlier.

I skipped lunch that day – as I often did when the case was heating up – and hurried back to the library.  After typing up two letters of recommendation for students and returning a call from a summer camp needing me to serve as a reference for one my juniors, I threw myself back into my research.  By the end of the hour, I had written my version of a legal brief for Steve and Bobby.

There was only one problem.

I had no idea if my Hail Mary plan was even remotely feasible.

It made perfect sense, at least to me.  But as Steve had patiently pointed out to me more than once, the law demanded more than a good idea.  Logic alone was insufficient to make an argument in court.

When my last class ended, I was unable to wait to find out if my Hail Mary would work.  I knew Steve would call me back that night, but the mounting excitement was too much for me to sit and wait.  I needed to ask a Federal Judge if the idea made sense.

Now all I needed was a Federal Judge.

Fortunately, I did know one I could call on.

Former Federal Justice Abner J. Mikva had been my Congressman when I cast my very first vote and since then our paths had crossed from time to time. In 1979, he resigned from Congress when President Carter named him to the United States Court of Appeals for the District of Columbia Circuit.  He later served as Chief Judge on that court, which many experts consider the second most important in America.  After he left the court, Judge Mikva served briefly as President Clinton’s White House Counsel.  It was widely reported that President Clinton, then in the middle of the Lewinsky scandal, called on Mikva because of his levelheaded judgment and unassailable personal character. Twice before he had served as an invaluable source for our National History Day teams.  Despite his always-hectic schedule, he always graciously welcomed my calls and always helped my students.

Judge Mikva was away for the weekend.  (He called me back the following Monday with some extremely wise counsel.) My excitement and frustration were growing in equal measure. Now I needed another Federal Judge! How many Presidential appointees was a high school history teacher supposed to know?

I thought about it for a minute and realized that I actually did know another.  Well, I didn’t know him, exactly, but in the brazen use of six degrees of separation at which I had become expert, I did have a connection.

Three years earlier, at the Medgar Evers ceremony, I’d met conservative Mississippi Congressman Chip Pickering. We’d talked about how the South had changed. He explained that his father had grown in his thinking on race relations.  In the 1960s, he had even testified – at great personal risk – against Sam Bowers, a terrifying KKK leader. His father’s evolution on the race issue, Congressman Pickering said, was symbolic of the New South.  The problem was that many older Southerners who had sincerely changed their views were still being held to account for positions they had abandoned decades ago. When I told the congressman about my plans to try and help reopen  cold cases from the era, he told me if I never needed a legal expert in Mississippi, someone who cared deeply about racial justice, I should call on his father.

His father was former Federal Judge Charles W. Pickering, Sr.

Of course, I thought, I’ll just pick up the phone and call Judge Pickering. It sounded perfectly logical to me.  After all, three years earlier, his son, a United States Congressman from Mississippi, and I had a short conversation and he had mentioned, in a polite, off-handed way, that his father might be willing to help me.  What more entrée did I need?

A quick Internet search turned up the phone number of Judge Pickering. As I placed the call, I remembered that he had been at the center of one of the most bitter, partisan showdowns between President George W. Bush and the Senate.  The battle over Judge Pickering’s nomination to the United States Court of Appeals for the Fifth Circuit led to a prolonged filibuster that closed down business in the Senate.  The hearings were angry, harsh reminders of the enormous political divisions in Washington.  President Bush threw gas on the fire when he appointed Pickering to the bench without the consent of Congress.  Using a rare procedure called a recess appointment, Bush circumvented the will of the Senate.  Pickering served for a year and then, when it was clear that he could not survive another confirmation vote, he retired to a lucrative private legal practice in Mississippi.

A very pleasant secretary listened with amused interest when I stated my business.  She explained that the Judge was on a call, but that if I could wait a few minutes, he would take my call.

I practiced my pitch, looked over my notes on the cases I was going to cite, and then searched the internet to remind myself why his nomination had been so controversial.

The answer made me blanch. The issues raised at the Senate hearings could not possibly have been more relevant to our cause. Judge Charles W. Pickering had been publicly accused of being an old line Mississippi segregationist leader.  A wide range of organizations and individuals who had been supportive of my teams’ work over the years had vigorously opposed his nomination.

The complaints against him were deeply disturbing. Charles Pickering had been accused of fighting against civil rights as a young man. As a Judge, he was accused of going easy when sentencing a racist who had burned a cross on the lawn of an interracial couple. As a Mississippi Republican Party leader, he opposed key elements of the Voting Rights Act. The allegations went on and on.

Two of the accusations were particularly troubling for me.  First, as a Mississippi State Senator, Pickering had actively supported and twice voted to fund the noxious State Sovereignty Commission. That was the same hateful group that had worked so long and so hard to frame Clyde Kennard in the first place.

The second accusation made me shudder. If the charge was true, it would make Judge Pickering the worst possible person to help clear Kennard’s name. In a very controversial judicial decision, he had refused to allow a DNA test for a convict who claimed he was innocent.  Like Clyde Kennard, the man languished behind bars, caught in a kind of legal ‘Catch 22.’ He was unable to prove his innocence without a DNA test.  But Judge Pickering sternly ruled that without evidence of innocence, the man could not have the DNA test.

 

Senator Patrick Leahy, a prominent Pickering critic, explained:

 

(while) Judge Pickering declared the importance of actual innocence, he denied a petitioner the only thing that could have possibly proved his – a DNA test. It was in that case of Washington v. Hargett that Judge Pickering summarily rejected the plaintiff’s motion for a DNA test in order to prove his claim of innocence. The case involved a rape that occurred in August 1982, before DNA was generally available and accepted in the courts. Yet the judge suggested in his opinion that DNA testing was inappropriate simply because the request came in 1995 – 13 years after the trial. As he put it:

 

“Plaintiff had a fair criminal trial. He was, and is, entitled to nothing more. He was not entitled to a perfect trial. No such trial can be held. Plaintiff states that he wants DNA testing now thirteen years later. He wants a new trial. A new trial, now, thirteen years later, would be much less reliable than the one that occurred thirteen years ago.”[iii]

If that reflected his thinking, he would clearly not help prove the innocence of Clyde Kennard.  That logic would argue that because Kennard had a trial – a far from perfect one, but a trial nonetheless – and deserved no more.

I continued to wait on hold.  I read half dozen more postings about how the Mississippi branch of the NAACP opposed Pickering, as did respected law professors and historians from many Southern universities.  My home state senator, Dick Durbin lead the fight against him, and the Democrats had used a filibuster to block him. Now what was I getting myself into?

A smarter man would probably have just hanged up the phone.  But I was determined, if not smart.  And then it occurred to me that if I could convince Judge Pickering that I was right, I could convince anybody.  This was going to be the supreme test of my ideas. I was prepared for a fight.

Five minutes later, the Judge came on the line.  A strong, but gentle Southern voice said, “Good afternoon, Mr. Bradford.  I am so sorry that you had to wait. I understand you want to talk to me about Clyde Kennard.”

“Yes, Your Honor,” I replied, reminding myself to talk slowly, in the Mississippi fashion.

“It was terrible what happened to that poor man.  Just terrible. A miscarriage of justice.  I was just telling Gov. Barbour that the other day.”

So much for a fight!

“Judge, I’m calling you because I met your son, Congressman Pickering, a few years back at the ceremony my students and I hosted on the 40^th anniversary of the murder of Medgar Evers.”

“Oh, I remember, Chip worked with (Congressman) Bennie Thompson on that.  He said it was a wonderful day, one that did Mississippi proud.”

“He couldn’t have been more helpful, Judge. But now I need your help with the Clyde Kennard case. Your son told me if I ever needed an expert on Mississippi law, and a man who cares deeply about racial justice, that I should call you.  Thank you so much for taking the time to talk with me.”

“Not at all, Mr. Bradford, not at all. I presume you are that teacher that Jerry Mitchell has been writing about?  The one whose students have been working on reopening the Kennard case?”

“Yes, sir,” I took a few minutes and explained about the work Callie, Agnes, and Mona had done, about Steve Drizin and Bobby Owens, about the roadblock we now faced. Then I made my pitch.  “Judge Pickering, I sure could use your help.”

“I’d be honored to do whatever I can.”

I opened the file on my laptop that had my notes and the brief I had prepared. An icon on my screen was blinking. I saw that I had an email from Jerry.  As I spoke, I typed him a report on my idea and my ongoing conversation with Judge Pickering.  Jerry immediately wrote back and asked how the Judge had responded.  I chuckled to myself.  I had often shared information with Jerry, of course, but never before had I done it as the events were unfolding!  With his usual droll wit, Jerry later referred to it as “leaking in real time.”

“Judge,” I continued on the phone, “I am frustrated.  Everyone agrees that Clyde Kennard was an innocent man.”

“Unquestionably.”

“However, we seem to have run out of options to remedy this wrongful conviction working through normal channels in the State Of Mississippi.  But I’ve been working all day on a plan to make a run at it from another angle.  May I explain it to you and get your reaction?”

“By all means.” His tone was patient and encouraging. It occurred to me that I, a non-lawyer, was about to present a brief to a brilliant former Federal Judge!

I pulled up my brief and outlined my plan to use the Federal Courts to order a new trial.  I cited cases and explained my rationale.  Judge Pickering listened with great courtesy until I had finished laying it all out.

“Mr. Bradford,” he drawled with the bemused, gentle tone of a law professor correcting a first year student who did not yet know the difference between a tort and a tart, “you have obviously given a great deal of thought to this plan.  However, it simply will not work.”

It then took Judge Pickering less than a minute to dismantle every aspect of my reasoning, my hypothesis, and my approach.  There were a half dozen procedural reasons why a Federal Court would reject my argument, he explained patiently.  The most important was that, as a general rule of criminal law, a dead person has no standing in court. “May I presume,” he concluded, “that your Professor Drizin has not yet signed off on this idea?”

Cowed, I admitted I had not yet reached him.

Just then, as if on cue, I received an email from Steve.  He had just returned from court and had gotten my messages. His note was short and to the point.  My idea would not work, for much the same reasons that Judge Pickering had just laid out.  I immediately wrote back to both Steve and Jerry, filling in them on the conversation as it continued.

“Well, Judge, I just got an email from Professor Drizin.  He agreed with every point you made.  It looks like I should stick to teaching history and call to an end my brief, inglorious career as a barrister.”  I was trying to end on a light note, figuring he had already concluded that I was an idiot.  “At least I can always say that I made an argument before a Federal Judge!”

With great Southern graciousness, he said, “I have certainly heard arguments that were less well prepared.” He laughed warmly and said, “Maybe there is another way we can go about all this.  Can you send me the brief that you all prepared for the Parole Board?” I checked with Steve: he agreed. With a few keystrokes I was able to send much of our work to Judge Pickering’s office. (Later that week, he repeatedly and publicly praised the work that Steve and Bobby Owens had done.  He was also very gracious in complimenting the research my team provided, especially the timeline.)

“Here is my thinking, Mr. Bradford,” Judge Pickering continued.  I happen to know the District Attorney down there in Hattiesburg.  His name is Jon Mark Weathers. He’s a good man, a good man. He is a Democrat but I have always been able to work with him. I believe that I will just go ahead and give him a call.  I have an idea forming in my mind; perhaps there is a way that we can all work together to get this thing done quickly.”

“That would be great, Judge, what’s your idea?” I asked, my enthusiasm obvious.  I simply couldn’t believe how quickly he had jumped on the bandwagon. Heck, he sounded ready to pull the bandwagon himself and carry us all the way to the finish line! Was it really possible that former Justice Charles W. Pickering, the supposedly racist pariah of the right could actually prove to be Clyde Kennard’s champion?

Just then I remembered a wonderful old cartoon I had found during my initial research. It dated from the early days of the Civil Rights Movement.  The cartoon showed a huge number of black marchers entering a Southern town.  The protestors were carrying picket signs that had slogans like, “We Shall Overcome,” and “Integrate Now!”  At the end of the street was a raised platform with a number of dignitaries.  The mayor was holding the key to the city.  Stretched across the street was a banner that read, “Welcome, Friends, We Can Work It Out!”  Lining the street were throngs of happy, smiling, waving white people, welcoming the protestors.

One of the marchers looked at the other and says, “It could be a trick.”

“Well, Mr. Bradford, I am a great supporter of Governor Barbour’s.  We go back a long way. And (former) Governor William Winters and I went to see him, in private, last week after we read Jerry Mitchell’s article about your efforts to secure a pardon for Clyde Kennard.  We both told him he should do it, that he must do it.  But he just refused.  I do not understand it.”  He sighed and I waited. “But there is more than one way to skin a cat.  Can I call you back in three hours?”

It was now just a little bit after 4 pm on a Friday afternoon.  I wasn’t sure what he could accomplish at this hour, but his quiet, focused confidence encouraged me.  “Of course, Judge.”

Still more than a little bit in shock by the rapid turn of events, I fired off a final e-mail to Jerry and Steve, filling them in and promising to call them over the weekend if this odd twist amounted to anything substantial.  I sent a copy to Callie, Agnes and Mona, threw some treats for my children and five folders full of papers to be graded into my bulging backpack, and raced downstairs from my classroom to the Day School to get my son.

Three year old Zack chatted happily as I tried to shift my mindset from ‘crusader for justice’ to attentive Daddy. He was excited because he made a beautiful picture for mommy and couldn’t wait to show it to me as we took a cab to retrieve his sister at her Christian Beginnings Preschool. We walked hand in hand to her classroom, Zack still chattering and me trying to calm my mind from the tumult of the day.  Watching him hug E.J. and hearing her squeal of joy when she saw me finally brought me completely back to the moment.

After lots of hugs and kisses, E.J. told me all about her day. Then she asked, “And what did you do today, Daddy?

I couldn’t explain this day, not to a very bright five year old.  Heck, I didn’t understand it.

As we walked in the door, less than forty minutes after I had hung up with Judge Pickering, my cell phone began ringing again.  The caller ID told me it was the area code was 602 – which I knew meant it was from Mississippi. My head was spinning.  After months of slow, sometimes unsteady progress, suddenly events were moving at warp speed.  I didn’t recognize the number but I knew the voice of Judge Pickering when I heard it.

“Mr. Bradford, I have some very good news, very good. I believe that we now have an agreement in place.  There are still have a few more pieces I have to put together, but if everything goes as planned, Clyde Kennard will be exonerated on Wednesday of next week.”