U.S. District Judge Lynn N. Hughes

The U.S. Court of Appeals for the Fifth Circuit criticized U.S. District Judge Lynn Hughes in a recent decision after he apparently attributed a female federal prosecutor’s litigation mistake to her sex by saying: “It was a lot simpler when you guys wore dark suits white shirts and navy ties . . . we didn’t let girls do it in the old days.”

The decision, U.S. v. Swenson, involves fraud allegations against Simone Swenson an adoption agency owner who allegedly matched two prospective families with the same birth mother but avoided contact with them after receiving the families’ money.

Hughes dismissed the indictment against Swenson last year with prejudice after three and a half years of litigation because the prosecution missed pretrial discovery deadlines, mistakenly withheld some relevant documents until the eve of trial, and committed errors that led Hughes to conclude “the integrity of the prosecution had been destroyed,” according to the decision.

After releasing discovery that allegedly called the prosecution’s theory of the case into question on the day before trial, Hughes “excoriated” an unnamed female prosecutor for the mistake by saying: “You’re supposed to know what you’re doing. You’re supposed to be the one thinking of stuff.”

Hughes “then apparently attributed the mistake to her sex” by stating: “It was a lot simpler when you guys wore dark suits, white shirts and navy ties . . . we didn’t let girls do it in the old days.”

While discussing the newly produced evidence, Hughes also asked: “What else is out there that you misplaced or didn’t think was relevant so you didn’t check it at all?”

The prosecutor tried to assure the Hughes that she was not intentionally withholding any information: “I have been an open book. I never try to keep anything back.”

The government later appealed Hughes’ dismissal of Swenson’s indictment to the Fifth Circuit.

The Fifth Circuit ultimately reversed Hughes’ decision dismissing Swenson’s indictment in their July 3 decision. And in a footnote, Judge Edith Brown Clement pointed out that Swenson’s lawyer contended during oral argument that “the record is ambiguous and perhaps the district court was speaking not to prosecutors, but to other women present at the hearing.”

“Regardless, such comments are demeaning, inappropriate and beneath the dignity of a federal judge,” Clement wrote in the footnote.

Clement ultimately concluded in her decision that prosecutors had not withheld evidence in the case, that their discovery violations did not warrant having the indictment dismissed by Hughes, and that there was no prosecutorial misconduct or prejudice in the case.

“Although the government should not have waited until the eve of trial to produce documents to the defense, a continuance would have remedied any prejudice,” Clement wrote.

“Swenson has failed to demonstrate prejudice sufficient to support the district court’s severe sanction,” Clement wrote. “The district court abused its discretion when it dismissed Swenson’s indictment with prejudice.”

And in an extremely rare move, the Fifth Circuit directed Lee Rosenthal, chief judge of the Southern District of Texas, to assign the Swenson case to a judge other than Hughes on remand.

Hughes declined to comment on the decision.

Mike Sokolow, an assistant federal public defender who represented Swenson at the Fifth Circuit,  also declined to comment on the decision. Eileen Wilson, an assistant U.S. attorney in Houston who represents the government on appeal, did not return a call for comment.

In 2015, the Fifth Circuit ordered another case, U.S. v. Shell Exploration, be taken away from Hughes on remand after Hughes declined to rule the way the appellate court wanted him to by dismissing a qui tam filed against the energy giant by plaintiffs.