A federal judicial conduct committee ruled Friday that a reprimand and sanctions imposed last year against U.S. District Judge Walter S. Smith Jr. 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.
In a four-page decision, 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 New York attorney Ty Clevenger in Clevenger’s complaint against the 75-year-old Smith.
Smith, who has been a federal judge since 1984, declined comment Friday through a court employee on the committee’s decision.
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 suspended the assignment of any new cases to the judge for one year and required him to undergo sensitivity training.
Clevenger 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.
“The order corroborates my suspicion that the 5th Circuit downplayed the scope of Judge Smith’s misconduct,” Clevenger said Friday. “I provided the judges with a transcript of one victim’s testimony, so they couldn’t very well ignore that incident, but then they ignored all of the other alleged victims and witnesses. It’s a pretty sad commentary on the judiciary’s ability to police itself.”
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.”
“Judge Smith needs to be impeached, and I have to wonder how much longer Congressman (Bill) Flores will sit on his hands, waiting for the judiciary to give him political cover,” Clevenger said. “At the very least, Congressman Flores could initiate a parallel investigation in Congress rather than crossing his fingers and hoping someone else will do his job for him.”
Flores said after Smith was reprimanded that he thought the punishment against him did not fit the allegations and he pledged to investigate procedures by which judges are impeached.
But months later, after Clevenger appealed the matter, Flores said he was content to allow the federal appeals process to play itself out.
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.
Grievance against lawyer
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.
White’s answer 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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