()

The U.S. Court of Appeals for the Fifth Circuit has reprimanded U.S. District Judge Walter Smith of Waco for making “inappropriate, unwanted physical and non-physical sexual advances” toward a court employee in 1998 and stopped his new case assignments for one year as punishment.

The Dec. 4 order of reprimand from the Fifth Circuit’s Judicial Council, concludes that Judge Smith “does not understand the gravity of such inappropriate behavior and the serious effect that it has on the operations of the courts.”

The order also concludes that Smith “allowed false factual allegations to be made in response to the complaint” that was filed against him September 2014.

However, the disciplinary body ultimately concluded that Smith’s actions do not warrant a recommendation for impeachment. Instead the judicial council imposed the most severe sanction otherwise available to him by suspending his new case assignments, according to the order.

“It is imperative that Judge Smith not allow such events to recur and he is so directed,” wrote Carl Stewart, chief judge of the Fifth Circuit, in the order.

The order requires Smith to complete sensitivity training to the satisfaction of the Judicial Council before he can resume new case assignments.

Smith did not immediately return a call for comment. Neither did Stewart.

The September 2014 complaint against Smith was filed by Ty Clevenger, a former Dallas attorney who now lives in New York. Clevenger released the Fifth Circuit’s reprimand of Smith before it was to be made available to the public.

“The order is a joke. It’s a slap on the wrist,” said Clevenger who plans to appeal the order to the Judicial Conference of the United States and request they recommend Smith’s impeachment.

Clevenger said he filed the complaint against Smith after the judge dismissed a “frivolous” racketeering case the lawyer filed. Smith ultimately sanctioned Clevenger and his client $25,000, according to a March 9, 2011 order.

Clevenger alleges Smith was “hostile” to his case because Smith was friends with one of the defendants in the racketeering case. Clevenger was later reprimanded by the State Bar of Texas in 2014 because of Smith’s sanction.

Clevenger said he deposed Smith’s harassment victim as part of his defense in the State Bar grievance case and presented her deposition to the Fifth Circuit as part of his complaint against Smith.

In the deposition, the woman stated that in 1998 Smith approached her in the courthouse smelling of liquor and told her to “come see me sometime.” Smith later called her on the telephone and instructed her to come to his chambers, which she did, according to her deposition.

“He basically came over to me and put his arms around me and kissed me and I just froze. I couldn’t move,” the woman testified. “And he said ‘Let me make love to you.” And I— and I— I just freaked out.”

The woman said she reported the incident to her supervisors and was told the matter was reported to Harry Lee Hudspeth, the chief judge of the Western District of Texas, but nothing came of it. The woman said she resigned her position not long after the incident, according to her deposition.

Greg White, a Waco solo who represents Smith in the disciplinary matter, said Smith believed the woman was attracted to him.

“If you read the deposition that has been made public, you’ll find that it was an event that occurred more than 10 years ago. The way the events read, it’s apparent that Judge Smith pursued a woman that he was attracted to and thought she was attracted to him,” White said.

White said the woman later wrote a letter to Smith acknowledging that his advance “was a mistake and asking that their relationship remain professional.”

“I think he acknowledges that he put her in an awkward position. But reading the deposition makes it clear that he thought she was attracted to him,” White said.

White explained that the “false factual allegations” Smith allowed to be made in his defense occurred because Smith initially thought another woman had complained about his behavior.

“As soon as he realized that he had made a mistake, we asked for an opportunity to file revised papers,” White said. Smith later filed another response which was “apparently unsatisfactory to the council.”

Judicial Discipline

Arthur Hellman, a professor at the University of Pittsburgh School of Law who is an expert on federal judicial discipline, notes there is a similarity between Smith’s reprimand by the Fifth Circuit and the one imposed on former U.S. District Samuel B. Kent. Kent was reprimanded by the Fifth Circuit in 2007 for sexually harassing his court staff, but the circuit’s judicial council also stopped short of recommending Kent’s impeachment. Kent denied the allegations but was later indicted in 2009 for lying to investigators about the extent of the harassment and sentenced to 33 months in prison. While Kent attempted to retire from the bench, he was ultimately impeached by Congress 2009.

“I think a lot of people will be asking, giving the similarity, why they didn’t recommend impeachment?” said Hellman of the Fifth Circuit’s reprimand of Smith.

Two of Kent’s victims testified before Congress that they’d been sexually harassed by Kent for years—sometimes right under the noses of courthouse security staff—and felt powerless to fight his advances. [See "Congress Tries to Knock "King" Samuel B. Kent Off His Throne," Texas Lawyer, June 8, 2009.]

“First if you go back to the Kent record—that was really awful. That was repeated assault over several years. Compare that with just this one episode. Some people might say this episode is enough, but there is a difference,” Hellman said.

“The judicial council may have concluded that [Smith's case] was less aggravated, so they would not recommend the consideration of impeachment. They should have just said that,” Hellman said. “There will people that say this person should not be on the bench and unless he resigns the only way to get him off is to impeach him. The Fifth Circuit should have anticipated that and explained why the sanctions are sufficient.”