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Federal judge Smith retires during ongoing investigation

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Walter Smith

U.S. District Judge Walter S. Smith Jr. has retired amid an ongoing invesgation into whether he made unwanted physical advances to more than one woman in his office.

U.S. District Judge Walter S. Smith Jr., the subject of a renewed investigation into allegations that he made unwanted sexual advances toward women in his chambers, ended his 32-year tenure as federal judge Monday.

Federal sources say Smith announced when he came to work Monday that he was officially retired as of last Wednesday. He and his wife started cleaning out his chambers Monday, the sources said.

No one answered the phone or came to the door in Smith’s chambers Monday afternoon.

In a letter to President Barack Obama sent Monday and obtained by the Tribune-Herald, Smith announces his intent to retire, effective Sept. 14.

“I understand that, upon my retirement, I will receive, during the remainder of my lifetime, an annuity equal to the salary I was receiving at the time of retirement,” Smith’s letter states.

Smith’s salary is $203,100. Federal judges receive lifetime appointments from the president.

The Judicial Council of the 5th U.S. Circuit Court of Appeals formally reprimanded the 75-year-old Smith in December after finding he made ”inappropriate and unwanted physical and nonphysical advances” toward a female courthouse staff member in his court chambers in 1998.

Smith, a federal judge since 1984 and a former chief judge of the Western District of Texas, also was suspended for one year from hearing any new criminal or civil cases filed after Dec. 3. While his workload dwindled in the past few months to a handful of cases, Smith continued to draw his full salary.

Smith did not return phone messages Monday, leaving it unclear publicly why he chose to retire and fueling speculation that the move may be sparked by the ongoing investigation and reports that at least one other woman has given a statement about his inappropriate sexual advances toward her.

An aide in U.S. Sen. John Cornyn’s office said Cornyn and U.S. Sen. Ted Cruz have established the Federal Judicial Evaluation Committee, a bipartisan panel of leading attorneys in Texas, to identify the most qualified candidates to help fill judicial vacancies.

“This panel reviews applications, interviews candidates and makes recommendations to the senators. The senators then send the recommendations along to the White House for the president’s consideration,” the aide said.

With a change coming in the White House, it is unclear how long it could take for a replacement to be named, officials said.

In the meantime, U.S. District Judge Robert Pitman, of Austin, who has been filling in during Smith’s suspension of new cases, will continue to take on that additional load, federal officials said.

Former Texas attorney Ty Clevenger, who filed the initial complaint against Smith, said he still thinks Smith should be impeached for his actions.

“Well, the first thing that comes to mind is good riddance,” Clevenger said Monday. “It is just unfortunate it took this long and so much effort to get him to do the right thing. The 5th Circuit should have recommended impeachment the first time.”

A federal judicial conduct committee ruled in July that the reprimand and sanctions imposed last year against Smith may not have gone far enough and that additional investigation into whether the judge engaged in a “pattern and practice” of making unwanted sexual advances toward women is needed.

The Committee on Judicial Conduct and Disability of the Judicial Conference of the United States said the 5th U.S. Circuit Court of Appeals Judicial Council failed to adequately address certain allegations made by Clevenger in Clevenger’s complaint against the judge.

The 5th Circuit judicial council found there was evidence to support claims that Smith made “inappropriate, unwanted physical and nonphysical sexual advances” toward a court employee in 1998 and reprimanded the judge. It also required him to undergo sensitivity training.

‘Far too lenient’

Clevenger, who faces possible disbarment in a U.S. District Court in the District of Columbia, appealed the order to the Committee on Judicial Conduct in January, charging that the punishment was “far too lenient” and urging the judicial council to recommend that Smith be impeached.

Clevenger supplemented his initial appeal by submitting the names of witnesses to other alleged incidents in which Smith reportedly sexually harassed other women in the courthouse. His appeal alleged “the assault of the court employee was not an isolated incident.”

The 5th Circuit council did not address or issue any findings related to the additional allegations, the Committee on Judicial Conduct said.

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Besides finding that Smith made unwanted advances toward the former court employee, the 5th Circuit judicial council also said Smith does not understand “the gravity of such inappropriate behavior and the serious effect that it has on the operations of the courts” and that the judge “allowed false factual assertions to be made in response to the complaint, which, together with the lateness of his admissions, contributed greatly to the duration and cost of the investigation.”

The order states that because Clevenger’s appeal included the names of individuals who allegedly witnessed other instances of the judge’s reported sexual harassment of women in the courthouse, “it raises the question whether there was a pattern and practice of such behavior.”

“Because we believe that additional findings are essential to the consideration of the petition for review, we are unable to complete our review of the Circuit Judicial Council’s order,” the order says.

The committee remanded the case back to the council with instructions to “undertake additional investigation and make additional findings where appropriate and reconsider the appropriate sanction if there are additional findings.”

The committee also directed the council to provide “additional findings and recommendations” concerning the finding that Smith allowed false factual assertions to be made in his response to the complaint and to determine “the manner in which Judge Smith’s conduct adversely impacted or interfered with the inquiry, if at all.”

That reopened investigation remains pending.

Smith also was reprimanded because he failed to properly disclose that the attorney who represented Smith against Clevenger’s allegations had cases pending in Smith’s court.

Clevenger filed a grievance against Waco attorney Greg White, and the State Bar of Texas is pursuing a disciplinary case against White. White responded to the State Bar charges leveled by Clevenger, and Clevenger made White’s responses public.

Numerous complaints

Clevenger faces legal problems, as well. Over the years, he has filed numerous complaints against judges and attorneys.

Most recently, he filed a complaint against Chief Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, Obama’s choice to succeed Antonin Scalia on the Supreme Court.

Clevenger’s blog, LawFlog, and his website,, bash the judiciary and highlight misconduct by judges. Clevenger currently is under fire from a Washington, D.C., judge who sanctioned Clevenger $120,000 in December and initiated disbarment proceedings against Clevenger. He has said he expects to be disbarred when those proceedings resume in October.

About seven years ago, Smith sanctioned Clevenger and fined him $25,000 for filing what the Waco federal judge deemed a frivolous lawsuit in his court.

White’s answer to Clevenger’s complaint acknowledged that an attorney from Florida who was unhappy with Smith’s rulings in the case questioned White about his relationship with the judge. White told him he was representing the judge, and the attorney immediately filed a motion to recuse Smith from the case, which Smith granted.

“Frankly, I had assumed three things,” White wrote in his answer. “First, I thought my role was so limited that my representation made no difference to anyone. Second, I though that Tammy (Hooks, Smith’s career law clerk) was calling people in my cases (to inform opposing parties of White and Smith’s attorney-client relationship). Third, I knew that I was bound by confidentiality — both by rule, and by my client’s instruction — not to volunteer that Judge Smith was the subject of a judicial conduct complaint or that I was his lawyer.”

White prepared a draft and said the judge asked him to sign the motion as his attorney.

“One statement in the motion to dismiss bears mention,” White’s memo says. “After talking to Judge Smith, I was under the impression that he believed that the young lady involved might have acted in a way to suggest her willingness to participate in a personal relationship — that she was the aggressor.

“I wrote that in the motion to dismiss — characterizing it as Judge Smith’s ‘memory.’ His memory came from a lawyer-friend of Judge Smith’s while Judge Smith’s divorce was pending. During the divorce, there were apparently ‘threats’ to make this woman’s complaint a public matter,” White’s memo says.

The lawyer, whom White did not identify, suggested that they could respond to the threatened publicity by suggesting that the woman approached the judge romantically in an attempt to gain favorable treatment for her husband, who was part of a group considering litigation in Smith’s court.

“That suggestion to Judge Smith (from his lawyer-friend) stuck with him, and he suggested it to me,” White wrote.

“After the motion to dismiss was filed, a more careful examination of the docket” revealed the suggestion that the woman approached the judge in such a manner to help her husband was not true, since the lawsuit involving her husband was not filed until long after the incident in Smith’s chambers.

During the council probe, the investigator told White that the investigator knew that version was not true.

“I acknowledged to the investigator that we had misstated that, and wished to correct it,” White’s memo says.

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Related to this story

A criminal investigation has been requested after assertions U.S. District Judge Walter S. Smith Jr. failed to properly disclose his attorney-client relationship with a Waco lawyer with cases pending in the judge’s court.

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