Federal judges – Top judicial ethics stories of 2015

Misconduct by a federal judge – or an allegation of such misconduct – is always a high profile matter, and discipline proceedings involving several federal judges and the revision of the discipline process itself were among the top judicial ethics stories of 2015.

In September, the U.S. Judicial Conference sent to the speaker of the House of Representatives its certification that the impeachment of former District Judge Mark Fuller may be warranted, based on the report of a special committee adopted by the 11th Circuit Judicial Council.  Fuller, who sat in the Middle District of Alabama, had been arrested in August 2014 on misdemeanor battery charges for beating his wife.  The criminal charges were dismissed following his compliance with a pre-trial diversion program.  He resigned effective August 2015.

Noting that the judge’s resignation may have obviated the need for certification in a case “with less egregious and protracted conduct,” the Conference stated its action was also a public censure of the judge’s “reprehensible conduct.”  The Conference found that:

  • Judge Fuller physically abused Kelli Fuller at least eight times, both before and after they were married, which included and culminated in the assault that took place on August 9, 2014, in the Ritz-Carlton Hotel in downtown Atlanta, Georgia.
  • Judge Fuller made repeated statements under oath before the Special Committee that he never, at any time, hit, kicked, or punched Kelli Fuller, which were false and material under 18 U.S.C. § 1621 [the federal criminal perjury statute].
  • Judge Fuller made false statements to the Chief Judge of the Eleventh Circuit in late September 2010 in a way that caused a massive disruption in the District Court’s operation and loss of public confidence in the Court as an instrument of justice. These false statements, in combination with the actions outlined in (a) and (b), contributed to the overall determination that Judge Fuller’s conduct may constitute grounds for impeachment.
  • The conduct described in (a)-(c) has individually and collectively brought disrepute to the federal Judiciary.

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In December, based on the report of a special committee, the 5th Circuit Judicial Council reprimanded District Judge Walter Smith for inappropriate and unwanted physical and non-physical sexual advances toward a court employee in 1998; the Council also directed that no new cases be assigned to the judge for 1 year.  In re Smith, Order and memorandum (December 4, 2015).  Judge Smith sits in the Western District of Texas.  The Council also found that the judge “does not understand the gravity of such inappropriate behavior and the serious effect that it has on the operations of the courts” and “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.”  According to news reports, the complainant, an attorney, has asked that the decision to reprimand Judge Smith and not seek his impeachment be reviewed by the Committee on Judicial Conduct and Disability of the Judicial Conference.

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In February, the Committee on Judicial Conduct and Disability of the Judicial Conference denied a petition for review filed by 13 individuals and public interest groups from the dismissal of their complaint alleging that Judge Edith Jones made statements during a public lecture on the death penalty that exhibited bias or related to the merits of pending cases.  In re:  Complaint of Judicial Misconduct (Jones) (February 19, 2015).  Judge Jones sits on the Court of Appeals for the 5th Circuit.  The speech was made at the University of Pennsylvania Law School on February 20, 2013.

The special counsel hired to investigate the complaint had found no recording of the lecture, and the special committee’s report, adopted by the Judicial Council of the D.C. Circuit, noted that, “although there is general agreement regarding the themes that Judge Jones discussed, the judge and the complainants sharply disagree about the wording and tone of many of her comments.”  The complaint alleged, for example, that the judge had stated that certain “racial groups like African Americans and Hispanics are predisposed to crime,” are “‘prone’ to commit acts of violence,” and get involved in more violent and “heinous” crimes than people of other ethnicities.  The special committee agreed that such suggestions would constitute misconduct but concluded that, in the absence of a recording and in light of the witnesses’ conflicting recollections, it could not “find, by a preponderance of the evidence, that Judge Jones made those comments in her initial remarks” and that, whatever her initial remarks, she “used the question-and-answer period to clarify that she did not adhere to such views.”

On review, the U.S. Judicial Conference Committee found no error in the Judicial Council’s conclusions.

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In September, the Judicial Conference amended the Rules for Judicial-Conduct and Judicial-Disability Proceedings for federal judges, with “dozens of clarifications and restyling and policy changes.”  The Conference emphasized:

  • A new “requirement that chief judge and circuit judicial council final orders disposing of a misconduct or disability complaint be published on a court’s public website. . . . Previously the JC&D Rules only required that final orders be made public at the office of the circuit clerk or on the court’s public website.”
  • 2 new grounds for “cognizable misconduct:” “retaliating against complainants, witnesses, or others for their participation in the complaint process” and “refusing without good cause shown, to cooperate in the investigation of a complaint under these rules.”
  • “An expansion of the meaning of ‘disability’ so it may include ‘impairment of cognitive abilities that renders the judge unable to function effectively.’”

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