In re Charges of Judicial Misconduct ( 2014 )

Judicial Council
OF THE DISTRICT OF COLUMBIA CIRCUIT
In re CHARGES OF JUDICIAL MISCONDUCT
No. DC-13-90021
No. 05-13-90099 (Fifth Circuit)
August 12, 2014
Before: GARLAND, Chief Judge, U.S. Court of Appeals for
the District of Columbia Circuit; KAVANAUGH, SRINIVASAN,
MILLETT, and PILLARD, Circuit Judges; ROBERTS, Chief Judge,
U.S. District Court for the District of Columbia; A. JACKSON,
CONTRERAS, and K. JACKSON, District Judges.
ORDER
Thirteen individuals and public interest groups filed a
Complaint of Judicial Misconduct against Judge Edith Jones of
the United States Court of Appeals for the Fifth Circuit,
pursuant to 28 U.S.C. § 351(a). The complainants asked the
Judicial Council of the Fifth Circuit to request that the Chief
Justice of the United States transfer the proceeding to the
judicial council of another circuit, pursuant to Rule 26 of the
Rules for Judicial-Conduct and Judicial-Disability Proceedings
of the Judicial Conference of the United States. On June 7,
2013, Chief Judge Stewart of the Fifth Circuit wrote to Chief
Justice Roberts, requesting that he transfer the case. On June 12,
2013, Chief Justice Roberts transferred the Complaint to the
Judicial Council of the District of Columbia Circuit.
2
On July 19, 2013, pursuant to 28 U.S.C. § 353(a) and
Judicial-Conduct Rules 11(f) and 12, Chief Judge Garland of the
United States Court of Appeals for the District of Columbia
Circuit appointed a Special Committee to consider the
allegations of the Complaint. The Special Committee consisted
of Chief Judge Garland, Circuit Judge Griffith, and Chief Judge
Roberts of the United States District Court for the District of
Columbia. The Special Committee has submitted its Report to
the Judicial Council, pursuant to 28 U.S.C. § 353(c) and
Judicial-Conduct Rule 17.
Upon due consideration, it is ORDERED by the Judicial
Council that the Report of the Special Committee be adopted by
the Council and that, based on the findings and for the reasons
stated therein, the above-referenced Complaint be dismissed.
It is FURTHER ORDERED that the Report of the Special
Committee be attached as an appendix to this Order, and that
this Order and the Report be released to the public.
So ordered.
APPENDIX
REPORT OF THE SPECIAL COMMITTEE
Judicial Council
OF THE DISTRICT OF COLUMBIA CIRCUIT
)
In re: Complaint ) Judicial Complaint
of Judicial Misconduct ) No. DC-13-90021
) No. 05-13-90099 (5th Cir.)
)
Report of the Special Committee
to the Judicial Council of the District of Columbia Circuit
Merrick B. Garland, Chief Judge,
U.S. Court of Appeals for the D.C. Circuit
Thomas B. Griffith, Circuit Judge,
U.S. Court of Appeals for the D.C. Circuit
Richard W. Roberts, Chief Judge,
U.S. District Court for the District of Columbia
July 7, 2014
CONFIDENTIAL PURSUANT TO JUDICIAL-CONDUCT RULE 23
2
Thirteen individuals and public interest groups have filed a
Complaint of Judicial Misconduct against Judge Edith Jones of
the United States Court of Appeals for the Fifth Circuit. The
Complaint alleges misconduct arising from remarks Judge Jones
made at a lecture on the death penalty at the University of
Pennsylvania Law School on February 20, 2013. The Complaint
also alleges that Judge Jones was disrespectful to a fellow Fifth
Circuit judge during an en banc argument on September 20,
2011. For the reasons discussed below, the Special Committee
recommends that the Judicial Council dismiss the Complaint.
I
On June 4, 2013, the complainants filed their Complaint
against Judge Jones with the Judicial Council of the Fifth
Circuit, pursuant to 28 U.S.C. § 351(a). The eleven-page
Complaint was supported by eight affidavits. The affiants
included six people who attended Judge Jones’ lecture at the
University of Pennsylvania. They also included two attorneys
who opined, on the assumption that the facts set out in the
affidavits were accurate, that Judge Jones had violated federal
and Texas state canons of judicial conduct.
The complainants asked the Judicial Council of the Fifth
Circuit to request that the Chief Justice of the United States
transfer the proceeding to the judicial council of another circuit,
pursuant to Rule 26 of the Rules for Judicial-Conduct and
Judicial-Disability Proceedings of the Judicial Conference of the
United States (Judicial-Conduct Rules). On June 7, 2013, Chief
Judge Stewart of the Fifth Circuit wrote to Chief Justice
Roberts, requesting that he transfer the Complaint. Chief Judge
Stewart stated that a transfer was warranted given the “highly
visible” nature of the allegations, the fact that the subject of the
Complaint was “the immediate past chief judge” of the circuit,
and the fact that the Complaint included allegations regarding
3
Judge Jones’ conduct toward a fellow circuit judge who was a
member of the Fifth Circuit’s Judicial Council. See Letter from
Chief Judge Stewart to Chief Justice Roberts (June 7, 2013).
On June 12, Chief Justice Roberts transferred the Complaint
to the Judicial Council of the District of Columbia Circuit.
Thereafter, the D.C. Circuit received allegations of other
instances of misconduct by Judge Jones. Because the Chief
Justice had only granted the D.C. Circuit Judicial Council
authority to resolve allegations relating to the two incidents
described in the June 4, 2013 Complaint, those who made such
submissions were advised that allegations regarding other events
would have to be filed with the Judicial Council of the Fifth
Circuit.1
On June 20, pursuant to 28 U.S.C. § 352(a) and Judicial-
Conduct Rule 11(f), Chief Judge Garland of the D.C. Circuit
notified Judge Jones of the transfer of the Complaint and invited
her to submit a response, which she did on July 12. The
response included a letter in which Judge Jones denied engaging
in the alleged misconduct. It also included the handwritten
notes that Judge Jones brought to her lecture at the University of
Pennsylvania, her ex post recollections of the lecture, and
various related news articles, blog posts, and legal documents.
On July 19, pursuant to 28 U.S.C. § 353(a) and Judicial-
Conduct Rules 11(f) and 12, Chief Judge Garland appointed this
Special Committee to consider the allegations in the Complaint.
1
See, e.g., Letter from Elizabeth H. Paret, Circuit Executive, D.C.
Circuit, to Nan Aron, President, Alliance for Justice (June 27, 2013)
(noting that, for the reason stated above, the D.C. Circuit Judicial
Council could accept the Alliance’s letter only “as background and
contextual information in ‘support of’ the [Fifth Circuit] complaint
and of the need for a ‘full investigation’ of its allegations”).
4
See 28 U.S.C. § 352(a) (“The chief judge shall not undertake to
make findings of fact about any matter that is reasonably in
dispute”); Judicial-Conduct Rule 11(b) (same). The Committee
is composed of Chief Judge Garland, Circuit Judge Thomas
Griffith, and Chief Judge Richard Roberts of the U.S. District
Court for the District of Columbia. On August 6, 2013, the
Committee appointed Jeffrey Bellin, Associate Professor of Law
at William and Mary Law School, as Special Counsel to the
Committee to investigate the Complaint’s factual allegations.
See Judicial-Conduct Rule 13(c).
On September 9, 2013, Judge Jones submitted an additional
letter to the Committee that contained an excerpt from a report
of the Defender Services Committee of the Judicial Conference
of the United States. See infra note 20. Thereafter, the D.C.
Circuit Judicial Council received further materials from third
parties supporting Judge Jones, including: a declaration from a
recent graduate of the University of Pennsylvania Law School
who attended Judge Jones’ lecture; a character reference by
Gerald H. Goldstein, a past president of the National
Association of Criminal Defense Lawyers and the Texas
Criminal Defense Lawyers Association; a letter from 62 of
Judge Jones’ former law clerks; and a separate letter from
another former law clerk of the judge.
Special Counsel Bellin interviewed a total of 45 people,
including most of the attendees at the lecture.2 The great
majority of the latter were University of Pennsylvania law
students. Special Counsel Bellin also interviewed all of the non-
student attendees. Those included the law school’s Associate
Director for Clerkships; three assistant federal defenders; and
2
Special Counsel Bellin communicated with an additional eight
attendees by email. Their email correspondence indicated that
interviews would not be fruitful. See Special Counsel Report 7.
5
Marc Bookman, the Director of the Atlantic Center for Capital
Representation and the author of the principal affidavit
submitted in support of the Complaint. The Special Counsel
determined that no faculty members attended the lecture.
After extensive investigative efforts, Special Counsel Bellin
concluded that Judge Jones’ lecture had not been recorded. He
did, however, obtain all available contemporaneous
documentation of the lecture: photographs of the event; Judge
Jones’ handwritten notes outlining her planned remarks; the
handwritten notes of an Assistant Federal Defender in the
Capital Habeas Unit of the Federal Community Defender Office
in Philadelphia, who was present at the lecture; the electronic
notes of another Assistant Federal Defender; and a student text
message exchange quoting Judge Jones. The Special Counsel
also obtained a number of documents created soon after the
lecture, including a summary of Judge Jones’ remarks that the
first Assistant Federal Defender mentioned above made upon
returning to her office, and a student attendee’s text message to
a legal blog and email to a fellow student attendee sent after the
Complaint was filed. All documents were voluntarily provided
to the Special Counsel.
The Special Counsel reviewed all of the affidavits and
submissions received by the Judicial Council and the
Committee. He also reviewed the dockets and published
opinions of all of the cases that Judge Jones discussed in her
lecture to assess their status at the time of the lecture. After
completing his investigation, the Special Counsel prepared a
report, which he submitted to the Special Committee. The
Special Committee then scheduled a hearing pursuant to
Judicial-Conduct Rule 14. At the hearing, the Committee took
the testimony of both Judge Jones and Mr. Bookman. After the
hearing, the Special Counsel prepared a supplemental report
6
further describing the status of the specific cases discussed in the
lecture.
Pursuant to 28 U.S.C. § 353(c) and Judicial-Conduct Rule
17, the Special Committee now submits this report of its
findings and recommendation to the Judicial Council, together
with the Special Counsel’s reports and the transcript of the
hearing.
II
Three sets of rules regulating judges’ conduct are relevant
here: the Judicial Conduct and Disability Act; the Judicial-
Conduct Rules; and the Code of Conduct for United States
Judges.
The Judicial Councils Reform and Judicial Conduct and
Disability Act of 1980, 28 U.S.C. §§ 351-64, is a statutory
scheme that establishes an administrative complaint process by
which circuit judicial councils can address allegations of judicial
misconduct or disability. The Act provides that “[a]ny person
alleging that a judge has engaged in conduct prejudicial to the
effective and expeditious administration of the business of the
courts . . . may file with the clerk of the court of appeals for the
circuit a written complaint containing a brief statement of the
facts constituting such conduct.” Id. § 351(a).
Pursuant to the Act, the Judicial Conference of the United
States has promulgated the Judicial-Conduct Rules. See Preface,
Judicial-Conduct Rules (citing 28 U.S.C. §§ 331, 358). The
Rules establish standards and procedures for addressing
complaints filed by complainants under the Act, and they govern
proceedings under the Act to determine whether a judge has
engaged in misconduct. Judicial-Conduct Rule 1. Other than in
“exceptional circumstances,” the Rules are “mandatory.”
7
Judicial-Conduct Rule 2(a), (b). They define “misconduct” as,
inter alia, “conduct prejudicial to the effective and expeditious
administration of the business of the courts,” and “conduct
occurring outside the performance of official duties if the
conduct might have a prejudicial effect on the administration of
the business of the courts, including a substantial and
widespread lowering of public confidence in the courts among
reasonable people.” Judicial-Conduct Rule 3(h)(1), (2). The
Rules acknowledge that “[t]he phrase ‘prejudicial to the
effective and expeditious administration of the business of the
courts’ is not subject to precise definition.” Judicial-Conduct
Rule 3, cmt.
The Judicial Conference has also adopted a Code of
Conduct for United States Judges. It “is designed to provide
guidance to judges” and “may also provide standards of conduct
for application in proceedings under the Judicial Councils
Reform and Judicial Conduct and Disability Act of 1980.”
Canon 1, cmt. The Code states, however, that “[n]ot every
violation of the Code should lead to disciplinary action.” Id.3
The Judicial-Conduct Rules, in turn, state that, “[a]lthough the
Code of Conduct for United States Judges may be informative”
as to the meaning of the phrase “prejudicial to the effective and
expeditious administration of the business of the courts,” the
Code’s “main precepts are highly general; the Code is in many
potential applications aspirational rather than a set of
disciplinary rules.” Judicial-Conduct Rule 3, cmt.
3
See Canon 1, cmt. (“Whether disciplinary action is appropriate”
depends “on such factors as the seriousness of the improper activity,
the intent of the judge, whether there is a pattern of improper activity,
and the effect of the improper activity on others or on the judicial
system.”).
8
The Code is composed of five canons, four of which are
cited in the Complaint. The most relevant portions of those
canons are as follows.
Canon 1 provides that “a judge should uphold the integrity
and independence of the judiciary.” Canon 1. The commentary
to Canon 1 explains that “[a]dherence to” the Canons “helps to
maintain public confidence in the impartiality of the judiciary.”
Canon 1, cmt.
Canon 2 provides that “a judge should avoid impropriety
and the appearance of impropriety in all activities,” Canon 2,
and “should act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary,”
Canon 2A. The commentary to this canon explains that “[a]n
appearance of impropriety occurs when reasonable minds, with
knowledge of all the relevant circumstances disclosed by a
reasonable inquiry, would conclude that the judge’s honesty,
integrity, impartiality, temperament, or fitness to serve as a
judge is impaired.” Canon 2A, cmt. Canon 2A’s prohibition
“applies to both professional and personal conduct.” Id.Canon 3 provides that “a judge should perform the duties of
the office fairly [and] impartially.” As part of this requirement,
“[a] judge should be patient, dignified, respectful, and
courteous” toward those “with whom the judge deals in an
official capacity.” Canon 3A(3).
Canon 3 also declares that judges “should not make public
comment on the merits of a matter pending or impending in any
court.” Canon 3A(6). The canon includes an exception that is
relevant here: “The prohibition on public comment on the
merits does not extend to . . . scholarly presentations made for
purposes of legal education.” Id.9
Finally, Canon 4 provides that a “judge may engage in
extrajudicial activities . . . and may speak, write, lecture, and
teach on both law-related and nonlegal subjects.” Canon 4.
This authorization extends to discussion of “the law, the legal
system, and the administration of justice.” Canon 4A(1). The
Code cautions, however, that “a judge should not participate in
extrajudicial activities that detract from the dignity of the
judge’s office, interfere with the performance of the judge’s
official duties, reflect adversely on the judge’s impartiality,” or
“lead to frequent disqualification.” Canon 4.
As noted above, although we consider these canons in
determining whether Judge Jones engaged in judicial
misconduct under the Judicial Conduct and Disability Act,
disciplinary action is appropriate only if her behavior satisfies
the definition of “misconduct” found in the Judicial-Conduct
Rules.
Neither the Judicial Conduct and Disability Act, nor the
Judicial-Conduct Rules, nor the Code of Conduct expressly
indicates what burden of proof a judicial council should apply
in its factfinding in a judicial misconduct proceeding. The
Judicial-Conduct Rules state that a judicial council may dismiss
a complaint because “the facts on which the complaint is based
have not been established,” Judicial-Conduct Rule
20(b)(1)(A)(iii) (emphasis added), suggesting that the standard
must at least be preponderance of the evidence. In the
analogous context of attorney disciplinary proceedings, the
American Bar Association’s Model Rules and most state and
federal jurisdictions that have addressed the question require
complainants (or disciplinary counsel) to establish misconduct
by clear and convincing evidence,4 although a sizable minority
4
A.B.A., MODEL RULES FOR LAWYER DISCIPLINARY
ENFORCEMENT R. 18.3, 18.4 (2002); 7A C.J.S. Attorney & Client
10
require only a preponderance of the evidence.5 None applies a
lesser standard.6
§ 103 (West 2013) (“As a general rule, charges of misconduct of an
attorney must be supported by evidence which is clear and
convincing.” (collecting state authorities)); see, e.g., 2d Cir. R.
46.2(b)(3)(G); Sealed Appellant 1 v. Sealed Appellee 1, 211 F.3d 252,
254-55 (5th Cir. 2000); In re Oladiran, No. 10-0025, 2010 WL
3775074, at *7 (D. Ariz. Sept. 21, 2010); D. Colo. Att’y R. 7(f); D.
Conn. Civ. R. 83.2(d)(5); In re Levine, 675 F. Supp. 1312, 1318 & n.4
(M.D. Fla. 1986); D. Kan. R. 83.6.3(f)(2)(D); E.D. La. Lawyer
Disciplinary Enforcement R. 2; D. Mont. L. R., App. B, R. 4(E)(v);
D.N.J. Civ. R. 104.1(e)(14); E.D.N.Y. & S.D.N.Y. Civ. R. 1.5(b);
E.D. Tenn. L.R. 83.7(i)(4); In re Jacques, 972 F. Supp. 1070, 1079
(E.D. Tex. 1997); In re Placid Oil, 158 B.R. 404, 413 (N.D. Tex.
1993); In re Ryder, 263 F. Supp. 360, 361 (E.D. Va. 1967).
5
See, e.g., E.D. Mich. R. 83.22(e)(6)(E); W.D. Mich. Civ. R.
83.1(k)(ii)(B)(3); D. Utah Civ. R. 83-1.5.7(e); Ark. Judicial Discipline
& Disability Comm’n, R. P. 15(g)(1); Ky. Sup. Ct. R. 3.330; Me. Bar
R. 7.2(b)(4); Mass. Bd. of Bar Overseers R. § 3.28; Mich. Ct. R.
9.211(A); In re Crews, 159 S.W.3d 355, 358 (Mo. 2005) (en banc); In
re Capoccia, 59 N.Y.2d 549, 551 (N.Y. 1983); Tenn. Sup. Ct. R. 9
§ 15.2(h); Tex. Disciplinary P. R. 2.17(M).
6
Some jurisdictions have adopted unique burdens of proof that
seem to straddle the line between clear and convincing evidence and
preponderance of the evidence. For example, Washington employs a
“clear preponderance” standard. See Wash. Enforcement of Lawyer
Conduct R. 10.14(b). Iowa employs a “convincing preponderance”
standard. See Iowa Sup. Ct. Att’y Disciplinary Bd. v. Rhinehart, 827
N.W.2d 169, 171 (Iowa 2013). And South Dakota’s standard is a
“clear and undoubted preponderance” of the evidence. See In re
Discipline of Stanton, 446 N.W.2d 33, 41 (S.D. 1989).
11
This Circuit has never determined what burden of proof
applies in judicial misconduct proceedings.7 Nor need we do so
here. Our disposition would be the same regardless of whether
a preponderance or clear-and-convincing standard applies.
III
We begin with the allegations arising out of an oral
argument before the United States Court of Appeals for the Fifth
Circuit, held in New Orleans, Louisiana on September 20, 2011.
A
On September 20, 2011, the Fifth Circuit, sitting en banc,
heard argument in United States v. Delgado, 672 F.3d 320 (5th
Cir. 2012). Judge Jones was the Chief Judge of the Circuit at
the time of the argument. Near the conclusion of the
government’s argument, Judge James Dennis asked counsel a
series of questions. A transcription of the relevant portions of
the oral argument is set out below.8
Government: I think the amount of drugs in that truck
supports the intent to distribute. And the jury . . .
7
We have, however, said that whenever a district court is
exercising an inherent power that is “fundamentally penal -- dismissals
and default judgments, as well as contempt orders, awards of
attorneys’ fees, and the imposition of fines -- the district court must
find clear and convincing evidence of the predicate misconduct.”
Shepherd v. Am. Broad. Cos., 62 F.3d 1469, 1478 (D.C. Cir. 1995).
8
The Fifth Circuit does not have an official transcript for this
argument; the above transcription is based on the oral argument
recording. See Oral Argument Recording at 47:40, Delgado, 672 F.3d
320, available at http://www.ca5.uscourts.gov/OralArgRecordings
/07/07-41041_9-20-2011.wma.
12
Judge Dennis: Well, we’ve said over and over that the
amount . . . this court, no court has said that you can
infer . . .
Chief Judge Jones: Judge Dennis.
Judge Dennis: . . . just on the basis of the amount of
drugs.
Chief Judge Jones: Judge Dennis!
Judge Dennis: . . . Can I . . . can I ask a question?
Chief Judge Jones: You have monopolized . . . seven
minutes.
Judge Dennis: Well, you know, I’m way behind on
asking questions in this court. I have been quiet a lot
of times, and I am involved in this case.
[There is then a noise that the complainants allege and
Judge Jones acknowledges is the sound of her
slamming her hand on the bench. See Compl. 2;
Special Counsel Report 50 n.253.]
Chief Judge Jones: Would you like to leave?
Judge Dennis: Pardon? What did you say?
Chief Judge Jones: I want you to shut up long enough
for me to suggest that perhaps . . .
Judge Dennis: Don’t tell me to shut up.
13
Chief Judge Jones: . . . you should give some other
judge a chance to ask a question.
Judge Dennis: Listen, I have been in this courtroom
many times . . .
Chief Judge Jones: [The government attorney] has
had . . .
Judge Dennis: . . . and gotten closed out and not able
to ask a question. I don’t think I’m being overbearing.
Chief Judge Jones: You’ve been asking questions for
the entire seven minutes that he has had open so far.
Judge Dennis: Well, I happen to be through. I have no
more questions.
Chief Judge Jones: I just want to offer any other judge
an opportunity to ask a question. Some may support
your position. If nobody else chooses to ask a
question, then please go forward.
Another judge on the en banc panel then asked a question.
At the end of the next argument on the court’s calendar that
day, Judge Jones offered an apology to Judge Dennis.9 Judge
9
The oral argument recording cuts off Judge Jones’ apology after
she says, “At this time, I would apologi . . . .” Oral Argument
Recording at 1:01:36, United States v. Kebodeaux, 687 F.3d 232 (5th
Cir. 2012), available at http://www.ca5.uscourts.gov/
OralArgRecordings/08/08-51185_9-20-2011.wma. The Clerk of
Court for the Fifth Circuit confirmed that there is no other recording
available. See Special Counsel Report 51 & n.257.
14
Jones noted this apology in her letter to the Special Committee
and advised the Committee that Judge Dennis had accepted it.
See Letter from Judge Jones to Chief Judge Garland at 3 n.1
(July 12, 2013). The Special Counsel confirmed this directly
with Judge Dennis, who said that Judge Jones apologized after
the next argument, that he accepted the apology, and that he told
her that he had not taken any offense. Judge Dennis informed
the Special Counsel that, as far as he was concerned, that was
the end of the matter. Special Counsel Report 51.
B
The Complaint alleges that Judge Jones exhibited “extreme
disrespect” to fellow Fifth Circuit Judge Dennis, in violation of
Canons 1, 2, and 3. Compl. 2, 9. In particular, it alleges that
Judge Jones violated Canon 3’s “duty to be respectful” to those
“with whom the judge deals in an official capacity.” Id. at 9-10(quoting Canon 3A(3) & cmt.).
Judge Jones does not dispute that she made the above-
quoted remarks, nor that they were improperly disrespectful of
Judge Dennis. She has, however, already apologized for the
incident. The Judicial-Conduct Rules provide that a complaint
may be dismissed if “the subject judge has taken appropriate
voluntary corrective action that acknowledges and remedies the
problems raised by the complaint.” Judicial-Conduct Rule
11(d)(2). The Rules list “an apology” as an example of
appropriate corrective action. Judicial-Conduct Rule 11, cmt.
Indeed, circuit judicial councils have repeatedly found that an
apology to the affected person is ordinarily the appropriate
corrective action for an intemperate comment and is sufficient
to permit dismissal of a complaint. See In re Charges of
Judicial Misconduct, 465 F.3d 532, 547 & n.6 (2d Cir. Jud.
Council 2006); In re Charges of Judicial Misconduct, 404 F.3d
688, 696-97 (2d Cir. Jud. Council 2005); see also In re Cudahy,
15
294 F.3d 947, 953-54 (7th Cir. Jud. Council 2002) (declining to
decide whether a judge committed misconduct because, “in any
event,” he promptly took appropriate corrective action by
apologizing).
In light of Judge Jones’ voluntary, virtually
contemporaneous apology to Judge Dennis, stated on the record
during the same court sitting at which she made her
inappropriate remarks, taken together with Judge Dennis’
gracious acceptance of that apology, the Committee concludes
that this aspect of the Complaint should be dismissed.
IV
We now turn to the second event at issue in the Complaint,
the lecture Judge Jones delivered on February 20, 2013 at the
University of Pennsylvania Law School.
A
In the summer of 2012, the student-run chapter of the
Federalist Society at the University of Pennsylvania Law School
invited Judge Jones to speak about the death penalty. The
Federalist Society chapter advertised the event within the law
school and to the public as a discussion of “federal death penalty
review through the perspective of a federal judge.” Special
Counsel Report 4. Judge Jones delivered the lecture, entitled
“Federal Death Penalty Review with Judge Edith Jones (5th
Cir.),” on February 20, 2013. Id. She spoke for about 45
minutes and then answered questions. Although there is general
agreement that she discussed the points set out below, there is
considerable dispute regarding her wording and tone.
Judge Jones’ remarks on the death penalty focused on three
questions: “Is the death penalty constitutional?” “Is the death
16
penalty morally justifiable?” And “Is the death penalty
working?” Her theme was that, although many of the traditional
arguments against the death penalty are “red herrings,” and
although the death penalty is both constitutional and morally
justifiable, its actual application is costly and flawed. The
description we set out in this subpart is largely uncontested and,
where contested, is supported by at least a preponderance of the
evidence. That evidence includes Judge Jones’ pre-lecture
notes, her subsequent recollections of the lecture, and the notes
and recollections of those who heard the lecture. See, e.g.,
Judge Edith H. Jones, Recollections of Death Penalty Speech
[hereinafter Jones Recollections]; Assistant Federal Defender,
Summary of Feb. 20, 2013 Edith Jones Lecture [hereinafter
Assistant Federal Defender Summary]; Special Counsel Report
6-14.
In discussing capital punishment’s constitutionality, Judge
Jones said that she is an advocate of constitutional interpretation
based on original meaning, and that because capital punishment
is mentioned in the Constitution, it must be constitutional. She
does not believe, she said, that “evolving standards of decency”
can render capital punishment unconstitutional. She concluded
that, because current Supreme Court case law holds capital
punishment constitutional with specified limitations, that is the
end of the matter for a lower court judge. See, e.g., Jones
Recollections 3-4; Assistant Federal Defender Summary 1.
With respect to whether the death penalty is justifiable,
Judge Jones said that the death penalty is “part of a thousands-
year old Judeo-Christian tradition” and that the Book of
Deuteronomy prescribes death as the punishment for murder.
As a Christian, she said, she adheres to the tradition, while as
judge, she follows the law. During this discussion, Judge Jones
noted that the Catholic Church has taken varying positions on
17
capital punishment at various times. See, e.g., Jones
Recollections 5-6; Assistant Federal Defender Summary 1.
Also regarding justification, Judge Jones described the facts
of a number of capital cases that she had heard as a Fifth Circuit
judge. Her purpose, she said, was to inform the audience of the
heinous nature of the crimes for which the death penalty had
been imposed during her tenure. See, e.g., Jones Recollections
6-10; Assistant Federal Defender Summary 1-2.
On the question of whether the death penalty is “working,”
Judge Jones noted that, during the 1970s and 1980s, the
Supreme Court had restricted several aspects of capital
punishment law and procedure. She said that those
developments, combined with the availability of federal habeas
corpus, had led to “chaotic” procedures. She further noted that,
beginning in the latter half of the 1980s, the Rehnquist Court
had imposed limits on the scope of the writ. Those limits, she
said, combined with the passage of the Antiterrorism and
Effective Death Penalty Act of 1996, made the Fifth Circuit’s
capital post-conviction docket less “chaotic.” See, e.g., Jones
Recollections 10-14; Assistant Federal Defender Summary 2.
Judge Jones then turned to the 2002 case of Atkins v.
Virginia, in which the Supreme Court held that execution of “a
mentally retarded offender” violates the Eighth Amendment’s
ban on cruel and unusual punishments. 536 U.S. 304, 321
(2002). Atkins left it to the states to determine who met that
standard, id. at 317, a decision that Judge Jones said created
significant uncertainty in this area of law. She again discussed
several Fifth Circuit decisions and noted a pending Supreme
Court case. See, e.g., Jones Recollections 14-17; Assistant
Federal Defender Summary 2.
18
Finally, still on the “Is it working?” portion of the
discussion, Judge Jones said that the procedures for charging
and imposing the federal death penalty are “incredibly
convoluted.” In particular, she questioned the reasonableness
and cost-effectiveness of the Justice Department’s practices in
seeking death penalty convictions. She concluded by saying
that, although she believes the death penalty is constitutional and
morally justifiable, society may have to reconsider whether it is
worth the effort currently required to impose it. See, e.g., Jones
Recollections 17-19; Assistant Federal Defender Summary 2-3.
At some point during her lecture, Judge Jones said that
certain kinds of challenges to capital punishment are “red
herrings.” Those included the charge that the death penalty is
administered in a racially discriminatory manner, and a defense
raised by foreign nationals based on the failure of arresting
authorities to inform them of their right to contact their
consulates. See, e.g., Jones Recollections 19-20 (citing
McCleskey v. Kemp, 481 U.S. 279 (1987); Breard v. Green, 523
U.S. 371 (1998); Sanchez-Llamas v. Oregon, 548 U.S. 331(2006)); Assistant Federal Defender Summary 3-4.
During the question-and-answer period that followed the
lecture, a student asked Judge Jones to clarify her views
regarding the involvement of certain minority groups in criminal
activity. See infra Part V.A. Others asked questions as well.
The judge was asked two questions by Marc Bookman, who
later submitted an affidavit in support of the Complaint in this
matter. See, e.g., Assistant Federal Defender Summary 4. That
exchange ended the lecture. Special Counsel Report 35-36.
B
As noted above, although there is general agreement
regarding the themes that Judge Jones discussed, the judge and
19
the complainants sharply disagree about the wording and tone of
many of her comments. Because the bulk of the allegations
concern the precise wording and tone that Judge Jones
employed, the Special Counsel searched extensively for a
recording of the lecture. He spoke with the relevant University
of Pennsylvania personnel, including its Chief Information
Officer, all of whom said that the school did not record the
lecture and did not know of a recording. He spoke with, and
received the latter answer from, Judge Jones, all of the Federalist
Society officers, all of the witnesses who submitted affidavits in
support of the Complaint, and all of the other attendees whom
he interviewed. Based on his investigation, the Special Counsel
concluded that “there is no indication that the talk was
recorded.” Special Counsel Report 5.
In the absence of a recording, the best sources of evidence
of what Judge Jones said during her lecture were the
recollections and notes of the people who attended. The Special
Counsel found, however, that many of the attendees had
differing recollections -- or no recollection at all -- of comments
referenced in the Complaint. Although he regarded the
witnesses with whom he spoke as “generally candid and
helpful,” the Special Counsel concluded that “their efforts to
recollect Judge Jones’ language to the degree necessary to
resolve the nuanced factual disputes at issue in the instant
proceeding were inevitably complicated by the failings of
human memory.” Id. at 7-8. The Special Counsel further
explained:
It was also clear from the interviews that the Complaint
and accompanying news accounts were widely
circulated and discussed in the University of
Pennsylvania Law School community over the
summer. Thus, an ever-present danger was that a
witness attempting to recall a remark, might actually be
20
remembering media coverage of the remark, or a
friend’s comments about what Judge Jones had, or had
not, said.
Id. at 8.
As noted in the introduction to this Special Committee
Report, the Special Counsel also obtained all available
contemporaneous documentation of the lecture. This included
three photographs of the event; Judge Jones’ handwritten notes
outlining her planned remarks; the handwritten notes of an
Assistant Federal Defender in the Capital Habeas Unit of the
Federal Community Defender Office in Philadelphia, who was
present at the lecture; notes that another Assistant Federal
Defender typed into her cell phone; and a text message quoting
Judge Jones sent by one student to another during the lecture.
The Special Counsel also obtained a number of documents
created after the lecture, including a summary of Judge Jones’
remarks that the first Assistant Federal Defender mentioned
above made upon returning to her office; and Judge Jones’
recollections of the lecture some four months later, after the
Complaint was filed. Id. at 8-11.
Attached to the Complaint were eight affidavits, six of
which were from individuals who attended Judge Jones’
lecture.10 The primary affidavit is that of Mr. Bookman, the
Director of the Atlantic Center for Capital Representation, a
“non-profit death penalty resource center serving Pennsylvania
and Delaware” that assists defense attorneys representing capital
defendants. Id. at 11. As the Special Counsel noted, the
10
The other two affidavits were, as mentioned earlier, from
attorneys who opined that Judge Jones’ remarks, assuming they were
accurately represented in the affidavits, violated federal or Texas
canons of judicial conduct.
21
Bookman affidavit “is almost identical to” the Assistant Federal
Defender’s summary of the Jones lecture. Id. at 10. The
Assistant Federal Defender told the Special Counsel that, “about
a month after the talk, she became aware that people were
asking around for witnesses to provide affidavits,” and she
“forwarded her Summary to” Mr. Bookman. Id. The Special
Counsel concluded that “it appears that Bookman took the
document, made slight changes and adopted the resulting
document as his affidavit.” Id. Mr. Bookman acknowledges the
point. Bookman Hr’g Tr. 2-4.
Five affidavits attached to the Complaint were submitted by
students who attended the lecture; those affidavits contain fewer
details than the Bookman affidavit and explicitly reference and
incorporate the Bookman affidavit. See Affs. of Students B-F.
Mr. Bookman testified that, after he attended the lecture, he
called a friend at the University of Texas’ Capital Punishment
Center to discuss Judge Jones’ remarks. This friend asked
Bookman to prepare the document that became his affidavit.
Bookman Hr’g Tr. 18. At the same time, a University of
Pennsylvania law professor, through her research assistant,
sought out students who attended Judge Jones’ lecture and
forwarded their names to Bookman’s friend, who then
coordinated the collection of affidavits from the students. The
students met with a Philadelphia attorney, who gave the students
the Bookman affidavit, discussed the affidavit and the lecture
with them, and thereafter prepared draft affidavits for them.
Special Counsel Report 11-12. All of the resulting affidavits
were filed in support of motions seeking Judge Jones’ recusal in
two cases that she discussed in the lecture. See infra Part
VI.A.3-4.
Finally, Judge Jones submitted another student attendee’s
declaration in support of her response. See Student Decl. This
declaration had been solicited by the president of the Federalist
22
Society chapter at the University of Pennsylvania Law School,
who sent out an email seeking declarations after media accounts
of the Complaint appeared. Special Counsel Report 13. After
the student drafted the declaration in question, he submitted it to
an attorney representing Judge Jones in this matter. Id. About
a month earlier, the same student had composed a text message
to a legal blog and an email to the Federalist Society president,
recounting his recollections of Judge Jones’ lecture. Id. at 14.
The Special Counsel obtained copies of both.
The Committee relies on all of this information, together
with the Special Counsel’s Report, in reaching the conclusions
below. As will be noted, in many instances the absence of a
recording means that the Committee must resolve factual
determinations based on the requirement that misconduct be
established by (at least) a preponderance of the evidence.
C
The Complaint groups Judge Jones’ contested comments
into the following categories: (1) “Comments on Race”; (2)
“Comments on the Intellectually Disabled”; (3) “Comments on
[Claims] of Innocence”; (4) “Comments on Foreign Nationals”;
(5) “Discussion of Individual Cases”; and (6) “Discussion of
Religion as a Justification for the Death Penalty.” It also alleges
that the judge: (7) improperly criticized the U.S. Department of
Justice; (8) “disparaged” the Supreme Court; and (9) delivered
her remarks in an inappropriate tone. In these respects, the
Complaint maintains, the judge’s lecture violated 28 U.S.C.
§ 351 and Code of Conduct Canons 1, 2, 3, and 4. We address
all but the fifth category in Part V below. We address the fifth
category, “Discussion of Individual Cases,” in Part VI.
23
V
In this Part, we address the Complaint’s allegations that
Judge Jones’ remarks exhibited bias toward certain classes of
claimants and claims, that she inappropriately criticized the
Justice Department and Supreme Court, and that she displayed
a lack of appropriate judicial demeanor.
A. Comments Regarding Race
During her lecture, Judge Jones addressed and rejected “the
charge that the death penalty is racially administered.” Jones
Recollections 19. The Complaint alleges that, in the course of
that discussion, the judge “made several statements
demonstrating racial bias and indicating a lack of impartiality,”
and uttered “generalized and stereotypical comments about
racial groups and their ‘criminal tendencies.’” Compl. 3.
Specifically, the Complaint alleges Judge Jones said that
certain “racial groups like African Americans and Hispanics are
predisposed to crime” and are “‘prone’ to commit acts of
violence.” Id. at 1. It contends she said that “certain racial
groups” “get involved in more violent and ‘heinous’ crimes than
people of other ethnicities,” that “a lot of Hispanic people [are]
involved in drug trafficking,” and that “‘sadly’ it was a
‘statistical fact’ that people ‘from these racial groups get
involved in more violent crime.’” Id. at 1, 3. And it further
alleges she said that racism was a “red herring” “thrown up by
opponents of capital punishment,” and that no case had ever
been made for “systemic racism” in the administration of the
death penalty. Id.The Complaint maintains that Judge Jones’ comments on
race constitute misconduct because they violate, inter alia,
Canon 1’s instruction that a judge should uphold public
24
confidence in the integrity of the judiciary, Canon 2 and 2A’s
prohibition on giving the appearance of impropriety or partiality,
and Canon 4’s prohibition on participating in extrajudicial
activities that “reflect adversely on the judge’s impartiality.”
In her response, Judge Jones states that her comments on
race came in the context of saying that “the Supreme Court had
rejected, in McCleskey v. Kemp, [481 U.S. 279, 292
(1987),] . . . that statistics about racism could be used as a
defense. That was all I said as I best recall at this point.” Jones
Hr’g Tr. 17. She strongly denies that she said some races “are
inherently more ‘prone,’ ‘have a greater propensity,’ ‘have
criminal tendencies,’ or are ‘pre-disposed’ to commit violent
crimes.” Jones Recollections 20. “I did not say such things,”
she states, “because I have never believed them and have never
said them.” Id.; see Jones Hr’g Tr. 5 (“I have never felt, much
less stated, that some groups are prone or predisposed toward
crime. Crimes are committed by individuals who make bad
choices. I said nothing in the speech inconsistent with [these]
fundamental views.”). Judge Jones acknowledges that she did
make “reference to statistical figures concerning African-
Americans and crime . . . [that] showed a racial disproportion,”
and to “Hispanics’ disproportional presence in federal prisons
because of drug smuggling and alien smuggling convictions
which often involve violence.” Jones Recollections 20. Noting
such statistics, she acknowledges that she said that “sadly,
African-Americans seem to be disproportionately on death row,”
id., and that she “may have said” that “sadly some groups seem
to commit more heinous crimes,” Special Counsel Report 16.
But she insists that she “was talking about statistical facts. I was
not talking about propensities.” Jones Hr’g Tr. 17. The judge
also acknowledges that she referred to racism as a “red herring.”
Id. at 15; Special Counsel Report 16; Jones Recollections 19.
But she states that she used the term only to mean that such
“complaints are not well taken from a practical or legal
25
standpoint,” in light of the Court’s decision in McCleskey. Jones
Recollections 19.
The witnesses interviewed by the Special Counsel generally
did not recall the exact language Judge Jones used during her
lecture that related to race. Special Counsel Report 18. Some
witnesses said she did use the phrase “prone to commit”; others
thought that she did not use the phrase, and that they would have
remembered if she had. Id. at 17-19; see also Bookman Hr’g Tr.
13 (“I can’t say for certain exactly the words that she said
initially.”). Four witnesses took notes contemporaneously: two
students noted the phrase in a text message between them; two
assistant federal defenders did not include it in their handwritten
notes.
But whatever the judge said during the lecture, the
witnesses agree that she made clear during the question-and-
answer period that followed that she did not mean to suggest
that certain races were “prone” to criminal behavior. Special
Counsel Report 17-19, 21. During that period, she was asked by
a student to clarify her views. As the student explained, in
answering Judge Jones said she was talking about “statistical
fact[s],” not “biology.” Student C Aff. ¶ 13.
Both Mr. Bookman and the Assistant Federal Defender
upon whose summary he relied confirm that description of the
exchange. According to Bookman:
She responded that she did not mean that certain races
were “prone” to such violent behavior -- just that,
“sadly,” they happened to engage in it more often. She
noted there was no arguing that “Blacks” and
“Hispanics” far outnumber “Anglos” on death row and
repeated that “sadly” people from these racial groups
do get involved in more violent crime.
26
Bookman Aff. ¶ 28; see Bookman Hr’g Tr. 13 (same). The
Assistant Federal Defender’s summary indicates that, when
asked a question by a student, Judge Jones responded that “she
did not mean that certain races were ‘prone’ to such violent
behavior -- just that, ‘sadly,’ they happened to engage in it more
often.” Assistant Federal Defender Summary 3. Indeed, the
Assistant Federal Defender told the Special Counsel that she
“felt the media coverage suggesting otherwise -- and
highlighting the ‘prone’ language -- was unfair to Judge Jones.”
Special Counsel Report 21.
We have no doubt that suggesting certain racial or ethnic
groups are “prone to commit” acts of violence or are
“predisposed to crime” would “reflect adversely on [a] judge’s
impartiality,” reduce “public confidence in the integrity and
impartiality of the judiciary,” and “have a prejudicial effect on
the administration of the business of the courts.” Such
comments would therefore violate both the Code of Conduct and
the Judicial-Conduct Rules. See Canon 4; Canon 1, cmt.;
Judicial-Conduct Rule 3(h)(2). Cf. In re Complaint of Judicial
Misconduct, __ F.3d __, 2013 WL 8149446, at *4 (U.S. Jud.
Conf. 2014) (adopting Ninth Circuit Judicial Council’s finding
that “race-related emails that ‘showed disdain and disrespect for
African Americans and Hispanics’” violated the Code and
constituted misconduct). But in light of the above recitation of
the witnesses’ recollections, we are unable to find, by a
preponderance of the evidence, that Judge Jones made those
comments in her initial remarks. More important, whatever she
said initially, it is clear that Judge Jones used the question-and-
answer period to clarify that she did not adhere to such views.
See supra Part III.B (noting that a complaint may be dismissed
if “the subject judge has taken appropriate voluntary corrective
action that acknowledges and remedies the problems raised by
the complaint,” particularly where the correction takes place
contemporaneously (quoting Judicial-Conduct Rule 11(d)(2))).
27
It appears likely that Judge Jones did suggest that,
statistically, African-Americans and/or Hispanics are
“disproportionately” involved in certain crimes and
“disproportionately” present in federal prisons. Needless to say,
this topic can be extremely sensitive, and we do not doubt the
affiants’ and witnesses’ repeated statements that they found the
remarks offensive. Judge Jones herself recounted that she “was
uncomfortable about alluding to such facts.” Jones
Recollections 20-21. We recognize that, without an explanation
or qualification, saying that certain groups are “more involved
in” or “commit more of” certain crimes can sound like saying
those groups are “prone to commit” such crimes. But we must
consider Judge Jones’ comments in the context of her express
clarification during the question-and-answer period that she did
not mean that certain groups are “prone” to criminal behavior.
In that context, whether or not her statistical statements are
accurate, or accurate only with caveats, they do not by
themselves indicate racial bias or an inability to be impartial.
Rather, they resemble other, albeit substantially more qualified,
statements prominent in contemporary debate regarding the
fairness of the justice system.11
11
See, e.g., Eric Holder, U.S. Attorney General, Remarks at the
Annual Meeting of the American Bar Association’s House of
Delegates (Aug. 12, 2013) (“[I]t’s time to ask tough questions about
how we can . . . address the fact that young black and Latino men are
disproportionately likely to become involved in our criminal justice
system -- as victims as well as perpetrators.”); Marc Mauer & David
Cole, Five Myths About Americans in Prison, WASH. POST (June 17,
2011) (“Yes, African Americans and Latinos disproportionately
commit certain crimes. But in a 1996 study of crime rates in
Columbus, Ohio, criminologists from Ohio State University concluded
that socioeconomic disadvantages ‘explain the overwhelming portion
of the difference in crime.’”); Charles Ogletree, The Burdens and
Benefits of Race in America, 25 HASTINGS CONST. L.Q. 217, 228
(1998) (“African-Americans are grossly over-represented in the
28
The evidence also shows that Judge Jones used the term
“red herring” to signify her view that a challenge to the death
penalty on the ground that it is administered in a racially
discriminatory manner is nonviable. When we consider this in
the context of a discussion of McCleskey v. Kemp, 481 U.S. at
292, we again cannot find that such a view indicates improper
bias or misconduct.
B. Comments Regarding the Intellectually Disabled
In Atkins v. Virginia, the Supreme Court held that execution
of “a mentally retarded offender” violates the Eighth
Amendment. 536 U.S. at 321. In her remarks, Judge Jones
discussed defendants’ subsequent reliance on Atkins to avoid the
imposition of death sentences. In that context, she discussed
cases that illustrated what she regarded as tension between the
commission of a crime warranting the death penalty, and the
diminished mental capacity that requires relief from a death
sentence under Atkins.
criminal justice system. In part, this is due to the fact that, per capita,
black people do commit more crimes than whites. However this fact
alone does not account for the disparities in the crime statistics. In
fact, since the 1970s, rates of black crime have been stable, even
though the rates of prosecution have increased exponentially.”); id. at
228 n.48 (“A number of studies have documented the unusually high
arrest rates for blacks suspected of crime compared to other groups.”);
id. at 236-37 (“The problem is that the decision-making process at
every stage . . . is discriminatory and thus subject to bias (racial or
otherwise) in its applications.”); see also U.S. SENTENCING COMM’N,
2012 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS, tbl.4,
available at http://www.ussc.gov/sites/ default/files/pdf/research-and-
publications/annual-reports-and-sourcebooks/2012/Table04.pdf
(providing statistics on race of offenders in each primary offense
category).
29
The Complaint alleges that Judge Jones did the following:
said “it is a disservice to the ‘mentally retarded’ to exempt them
from the death sentence”; “expressed disgust at the use of
mental retardation as a defense in capital cases,” saying that
“[c]apital defendants who raise claims of ‘mental retardation’
abuse the system”; “characterized capital defendants’ assertions
of ‘mental retardation’ as ‘red herrings’”; and “consistently
asserted that the manner in which these defendants committed
their crimes, such as the fact that one had allegedly worked as a
‘hitman’ or another had gone on a ‘burglary spree,’ proved that
they were not ‘mentally retarded.’” Compl. 1, 5. The
Complaint also suggests that Judge Jones was insensitive in
using the term “mental retardation,” as it is “outdated” and
“generally replaced by ‘[i]ntellectually [d]isabled.’” Id. at 5
n.10. Through these comments, the Complaint concludes,
“Judge Jones expressed extreme bias against such persons, and
against claims of intellectual disability as a whole.” Id. at 5; see
id. at 8-10.
Judge Jones strongly denies that she said “it is a ‘disservice’
to the mentally retarded to exempt them from the death penalty.”
Jones Recollections 21; Jones Hr’g Tr. 9. Witnesses diverge as
to whether they specifically recall Judge Jones using those
words. Most do not remember either way. A few recall her
using the word “disservice” in that context, while others state
that they do not and would remember if she had. See Special
Counsel Report 23-24. In the absence of a recording, we are
unable to find by a preponderance that the judge made that
statement.
We are also unable to find by a preponderance that Judge
Jones literally expressed “disgust” at the use of mental
retardation as a defense in capital cases, or said that capital
defendants who raise such claims “abuse the system.” No
affiant or witness reports that she spoke those words, and it
30
appears that in using them the Complaint merely intended to
convey that she used a “dismissive” tone, Compl. 5, rather than
to report particular words. As we discuss in more detail in Part
V.H, the absence of a recording of the lecture makes it
impossible for us to determine the tone the judge employed by
a preponderance of the evidence.
Judge Jones does acknowledge that claims of mental
retardation may have been one of the “red herrings” she
addressed in her lecture, by which she says she meant that, in
her experience, very few such claims succeed. Special Counsel
Report 22. But she did not mean to suggest that it is not “a
defense absolute to capital punishment” because the “Supreme
Court has said it is.” Jones Hr’g Tr. 15-16. We have no doubt
that, if a judge were to say that all claims of intellectual
disability are invalid or abusive, or were to “express[] disgust at
the use of mental retardation as a defense in capital cases,” there
would be good reason to doubt that judge’s ability to decide
such cases impartially.12 But no affiant or witness reported that
Judge Jones made such a categorical statement or defined “red
herring” in that way. And the way the judge reports that she did
intend the term -- as describing a claim that in her experience
rarely succeeds -- does not itself indicate bias or impartiality.
12
See Canon 3A(3), cmt. (explaining that “[t]he duty to be
respectful includes the responsibility to avoid comment or behavior
that could reasonably be interpreted as . . . prejudice or bias”); id.
(“The duty under Canon 2 to act in a matter that promotes public
confidence in the integrity and impartiality of the judiciary applies to
all of the judge’s activities . . . .”). Comments reflecting bias against
a class of litigants “or a particular legal claim or theory” are cause for
recusal under 28 U.S.C. § 455. Jenkins v. McCalla Raymer, LLC, 492
F. App’x 968, 970 (11th Cir. 2012); see SEC v. Loving Spirit Found.
Inc., 392 F.3d 486, 493-94 (D.C. Cir. 2004); United States v.
Microsoft Corp., 253 F.3d 34, 109, 114-16 (D.C. Cir. 2001); Hathcock
v. Navistar, 53 F.3d 36, 41 (4th Cir. 1995).
31
Judge Jones also acknowledges she said that the manner in
which some defendants committed their crimes raised doubts
about whether they were actually intellectually disabled. For
example, she discussed the case of Paul Hardy, whom she
described as a “hit man” for a “drug dealing New Orleans
policeman.” Special Counsel Report 22 & n.110, 37 (referring
to United States v. Hardy, 499 F. App’x 388, 389 (5th Cir.
2012)); Jones Recollections 15. “It seemed odd to me,” she
said, “that a professional killer could be mentally retarded.”
Special Counsel Report 22, 37. In so saying, Judge Jones was
restating a view that she had previously expressed in her judicial
opinions. In Chester v. Thaler, she noted that the Supreme
Court’s Atkins decision had stated that “‘[m]entally retarded
persons . . . by definition . . . have diminished capacities to
understand and process information,’” and “‘often act on
impulse rather than pursuant to a premeditated plan.’” 666 F.3d
340, 350 (5th Cir. 2011) (quoting Atkins, 536 U.S. at 318).
Judge Jones’ argument in her discussion of the Hardy example
mirrored her conclusion in Chester that a defendant who “did
not act on an impulse, but rather ‘pursu[ed] a premeditated
plan,’” did not have “diminished mental capacity.” Id. at 350.
Such reiteration of her previously expressed judicial opinion
does not constitute misconduct. Cf. Liteky v. United States, 510
U.S. 540, 555 (1994) (holding that “opinions formed by [a]
judge on the basis of . . . prior proceedings, do not constitute a
basis for a bias or partiality motion”).
Finally, there is no dispute that Judge Jones used the term
“mentally retarded,” rather than “intellectually disabled,”
throughout her lecture. The use of that term, however, does not
raise a question about her impartiality. As the passage from
Atkins quoted above makes clear, the Supreme Court used the
same term in that case. See 536 U.S. at 318. So did all other
extant Supreme Court opinions at the time of Judge Jones’
32
lecture.13 And so, too, did “both the lawyers and the Justices”
during this Term’s oral argument in Hall v. Florida. See Lyle
Denniston, Argument Analysis: When Simplicity Won’t Do,
SCOTUSBLOG (Mar. 3, 2014, 2:29 PM). Indeed, it was not until
May of 2014 that the Supreme Court abandoned its use of the
term. See Hall v. Florida, 134 S. Ct. 1986, 1990 (2014)
(“Previous opinions of this Court have employed the term
‘mental retardation.’ This opinion uses the term ‘intellectual
disability’ to describe the identical phenomenon.”).
C. Comments Regarding Claims of Innocence
The Complaint alleges that Judge Jones was “very
dismissive of claims of innocence,” that she viewed “even
innocence [a]s another ‘red herring,’” and that she “did not take
seriously the possibility that innocent people had been sentenced
to death.” Compl. 6. According to the Complaint, the judge
“said that reversals of those who were allegedly innocent were
really based on ‘technicalities,’ not innocence,” and that “just as
many innocent people [were] killed in drone strikes as innocent
people executed for crimes.” Id.To the extent the complainants use the term “dismissive” to
describe Judge Jones’ tone or demeanor, we are again unable to
reach any determination for the reasons discussed below. See
13
See, e.g., Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012)
(“[W]e have held that imposing the death penalty . . . on mentally
retarded defendants[] violates the Eighth Amendment.”); Kennedy v.
Louisiana, 554 U.S. 407, 420 (2008) (same); see also, e.g., Woodward
v. Alabama, 134 S. Ct. 405, 409 n.8 (2013) (Sotomayor, J., dissenting
from denial of certiorari). No doubt because the relevant precedents
use the term, so too did the petitioner in Chester v. Thaler. See
Petition for Writ of Certiorari, Chester v. Thaler (No. 11-1391), 2012
WL 1852055.
33
infra Part V.H. Judge Jones does not recall, as do few if any
witnesses, whether she labeled “actual innocence” a “red
herring.” Special Counsel Report 28-29. It was not one of the
“red herrings” listed in her pre-lecture notes. Id. at 29. She does
recall using an analogy to drone strikes in rebuttal to the
argument “that the death penalty kills innocents.” Id. at 28; see
id. at 29 & n.144; but see Jones Hr’g Tr. 16. She emphasized to
the Special Counsel and the Special Committee, and therefore
likely did so to the law school audience, that she personally had
not seen a death row exoneration due to actual innocence; rather,
those exonerations had followed successful legal challenges that
did not disprove factual guilt. Special Counsel Report 28-29;
Jones Hr’g Tr. 22-23 (“I said in my experience, the question of
innocence of the crime is rarely at issue in the cases that reach
the Fifth Circuit.” (emphasis added)); see Jones Recollections 21
(“[I]n my experience the fact that the defendants had committed
the crimes with which they were charged was rarely in doubt.”
(emphasis added)). That is the context in which many attendees
thought Judge Jones used the term “technicalities.” Special
Counsel Report 29. In light of the witness interviews and
affidavits, we agree with the Special Counsel that it is
implausible that Judge Jones labeled actual innocence itself as
a “technicality.” Id. at 29 n.148.
Some of the affidavits attached to the Complaint aver that
Judge Jones labeled as “technicalities” claims made by
defendants, under Brady v. Maryland, 373 U.S. 83 (1963), that
the prosecution had suppressed materially exculpatory evidence.
See Student B Aff. ¶ 30; Student C Aff. ¶ 16; Student E Aff.
¶ 15; Student F Aff. ¶ 12. But the Complaint does not itself
make that accusation. Nor does Mr. Bookman. Special Counsel
Report 29; see Bookman Aff. ¶ 30 (stating that Judge Jones did
not directly respond to a question about whether Brady
violations were “technicalities,” and instead “said she did not
know of any case out of Texas in which a prosecutor had ever
34
done anything to try to convict someone intentionally who was
not actually guilty”). Judge Jones denies that she dismissed
Brady claims as “technicalities.” Special Counsel Report 28
(citing Jones Recollections 21). The evidence on this point is
conflicting, id. at 28-29, and we cannot find by a preponderance
of the evidence that she did so.
Regardless of whether Judge Jones is correct in her
empirical observation that few innocent defendants have been
subject to the death penalty, she did not say or imply that she
would or does ignore either actual innocence claims or Brady
violations in her work as a judge. Rather, the record before us
indicates that she expressed an understanding that she said was
gleaned from her own prior judicial experience. Considering
Judge Jones’ comments in context, and given the paucity of
evidence regarding the exact phrasing of her remarks, we find
no misconduct. Cf. Liteky, 510 U.S. at 551, 555.
D. Comments Regarding Foreign Nationals,
Foreign Justice, and International Standards
The Complaint alleges that Judge Jones “denigrated the
system of justice in the nation of . . . Mexico, Mexican
Nationals, and the use of international standards in capital
cases.” Compl. 6. It charges that she said “it was an ‘insult’
when United States courts looked to the laws of another country
such as Mexico,” that a “Mexican National would rather be on
death row in the United States than in a Mexican prison,” that
Mexico does not provide its “own citizens with the kind of legal
protections [a] person would get in the United States,” and
“again characterized as a ‘red herring’ the claims of foreign
nationals and the use of ‘international standards.’” Id. at 6
(emphasis omitted).
35
As best we can reconstruct from the evidence before us, the
Complaint’s references are to three points that Judge Jones made
during her remarks: (1) that she disapproved of looking to the
law of foreign countries when interpreting the meaning of
provisions of the United States Constitution; (2) that she thought
a defense raised by foreign nationals, based on the government’s
failure to notify them of the right to consult with consular
officials, was a “red herring”; and (3) that she thought American
courts provide defendants greater protections than those of other
countries and that conditions in American prisons are far better
than those in Mexican prisons. None of these points constitutes
a basis for a finding of misconduct.
The first point is the subject of a spirited debate among the
Justices of the Supreme Court,14 and it cannot constitute
14
Compare Roper v. Simmons, 543 U.S. 551, 578 (2005)
(Kennedy, J.) (“The opinion of the world community, while not
controlling our outcome, does provide respected and significant
confirmation for our own conclusions.”); id. at 604 (O’Connor, J.
dissenting) (“I disagree with Justice Scalia’s contention . . . that
foreign and international law have no place in our Eighth Amendment
jurisprudence.”); and Knight v. Florida, 528 U.S. 990, 995-96 (1999)
(Breyer, J., dissenting from denial of certiorari) (“[T]his Court has
long considered as relevant and informative the way in which foreign
courts have applied standards roughly comparable to our own
constitutional standards in roughly comparable circumstances.”), with
Lawrence v. Texas, 539 U.S. 558, 598 (2003) (Scalia, J., dissenting)
(“The Court’s discussion of these foreign views . . . is therefore
meaningless dicta. Dangerous dicta, however, since ‘this
Court . . . should not impose foreign moods, fads, or fashions on
Americans.’” (quoting Foster v. Florida, 537 U.S. 990, 990 n.* (2002)
(Thomas, J., concurring in denial of certiorari))); Atkins, 536 U.S. at
324-25 (Rehnquist, C.J., dissenting) (“I fail to see, however, how the
views of other countries regarding the punishment of their citizens
provide any support for the Court’s ultimate determination [regarding
36
misconduct for an appellate judge to choose one side or the
other. See In re Charges of Judicial Misconduct, 404 F.3d 688,
699 (2d Cir. Jud. Council 2005) (holding that “the closely
divided vote in the Bush v. Gore decision itself . . . [shows that]
reasonable people disagree over the soundness of the opinions
in that case,” and hence that a judge’s public disagreement with
the decision did not constitute incompetence or misconduct).
Indeed, one of the affiants himself said: “I am familiar with the
conservative critique on the use of international standards in
American court decisions, so it did not surprise me that Judge
Jones shared that view.” Student B Aff. ¶ 32.
The second point expresses the views of a majority of the
Supreme Court.15 As such, Judge Jones’ contention that a
defense based on a defendant’s inability to consult with consular
officials has been unlikely to succeed cannot be considered
misconduct.
As to the third point, no rule or canon bars a judge from
stating what she perceives to be the advantages of her own
country’s legal system over that of others. The notes of one
witness (adopted in Mr. Bookman’s affidavit) say that Judge
the Eighth Amendment].”).
15
See Medellin v. Texas, 554 U.S. 759, 760 (2008) (stating that
the Vienna Convention on Consular Relations “does not itself have the
force and effect of domestic law sufficient to set aside [a] judgment or
the ensuing sentence”); Sanchez-Llamas, 548 U.S. at 337 (holding that
suppression of a defendant’s statement “is not an appropriate remedy
for a violation” of the Vienna Convention, “and that a State may apply
its regular rules of procedural default to [such] claims”); Breard, 523
U.S. at 377 (holding that “it is extremely doubtful that [a] violation [of
the Vienna Convention] should result in the overturning of a final
judgment of conviction without some showing that the violation had
an effect on the trial”).
37
Jones went further, suggesting that Ramiro Ibarra, a Mexican
national and defendant in one of her cases, would rather be in
prison in the United States than Mexico, even if he were not
subject to the death penalty there. See Assistant Federal
Defender Summary 3; Bookman Aff. ¶ 32. But Judge Jones
denies saying that, see Special Counsel Report 30, and we
cannot find by a preponderance that she did.
Finally, and notwithstanding the allegation made in the
Complaint, no affiant or other witness stated that Judge Jones
denigrated Mexican nationals (or Mexican-Americans)
themselves. If she had, such comments would constitute
misconduct. Cf. In re Complaint of Judicial Misconduct, __
F.3d __, 2013 WL 8149446, at *4 (adopting Ninth Circuit
Judicial Council’s order finding that “emails that ‘showed
disdain and disrespect for . . . Hispanics, especially those who
are not in the United States legally,’” violated the Code and
constituted misconduct).16 But since there is no evidence that
she did, we find no grounds for concluding that Judge Jones’
remarks cast doubt on her own (or the Judiciary’s) ability to be
impartial toward individuals of foreign nationality who come
before the court.
E. Discussion of Religion as a
Justification for the Death Penalty
The Complaint charges that “Judge Jones advocated her
personal religious views as a basis for justifying the death
16
See also Liteky, 510 U.S. at 555 (stating that a remark alleged
to have been made against German-American defendants by a judge
in a World War I espionage case, to the effect that German-
Americans’ “hearts are reeking with disloyalty,” is an example of a
judicial remark that “reveal[s] such a high degree of . . . antagonism
as to make fair judgment impossible”).
38
penalty.” Compl. 7. It alleges she said that “the death penalty
had Biblical origins, in Deuteronomy,” and that “a killer is only
likely to make peace with God and the victim’s family in that
moment when the killer faces imminent execution, recognizing
that he or she is about to face God’s judgment.” Id. “In support
of that justification” for the death penalty, the Complaint
continues, “Judge Jones cited an article that she said her
husband had found on the Internet, entitled ‘Hanging
Concentrates the Mind’ . . . , which she said discussed the
Vatican’s perspective on capital punishment while executions
were occurring within the Vatican’s jurisdiction.” Id.17
The remarks at issue were part of Judge Jones’ discussion
of the question, “Is the death penalty morally justifiable?”
Although there is uncertainty regarding the precise words she
used, there is general agreement (and Judge Jones does not
dispute) that she made comments along the lines described in the
previous paragraph. Special Counsel Report 25-27; Jones
Recollections 5-6. Her purpose, she explained, was to set out
what she regards as the Biblical and Christian justifications for
the death penalty. See Jones Recollections 5. Although
attendees generally said that the judge was unclear as to whether
she was expressing a personal belief or simply describing
potential justifications, they generally understood her underlying
message to be one of personal support for the death penalty.
Special Counsel Report 27. While Judge Jones’ recollection on
the point was also uncertain, Jones Recollections 6 (saying that
she noted what “some would say”), she told the Special Counsel
that it was possible that she had endorsed the above ideas,
Special Counsel Report 26. See also Jones Recollections 5
17
The article appeared February 8, 2013 in Crisis magazine,
which describes itself as “a voice for the faithful Catholic laity.” See
About Us, CRISIS MAGAZINE, http://www.crisismagazine.com/about-
us.
39
(“The Book of Deuteronomy in the Bible prescribes death as the
punishment for murder. From that standpoint, its morality
should not be in doubt. . . . I am a Christian who adheres to the
tradition.”). She made clear to the Committee, however, that she
“would never seek to issue a judgment applying the death
penalty to effectuate that purpose.” Jones Hr’g Tr. 14. “I was
talking about the Western tradition and not my personal view
about how I would decide a death penalty case.” Id. at 15.
It is not unusual for serious discussions of the morality of
the death penalty to address religious arguments on the subject.
Criminal law texts and law review articles often do so.18 So, too,
have other judges, including some with views opposite from
those expressed by Judge Jones.19 Such a discussion generally
18
See, e.g., SANFORD H. KADISH & STEPHEN J. SCHULHOFER,
CRIMINAL LAW AND ITS PROCESSES 520-21 (6th ed. 1995); RANDALL
COYNE & LYN ENTZEROTH, CAPITAL PUNISHMENT AND THE JUDICIAL
PROCESS 85-86 (1994); Davison M. Douglas, God and the
Executioner: The Influence of Western Religion on the Use of the
Death Penalty, 9 WM. & MARY BILL RTS. J. 137, 137-38 (2000)
(“[P]ublic debates about the death penalty and its use invariably invite
considerations of what our religious traditions teach us about the
morality of capital punishment.”); Robert F. Drinan, Religious
Organizations and the Death Penalty, 9 WM. & MARY BILL RTS. J.
171 (2000).
19
See Carolyn Dineen King, Speech at Red Mass at Corpus
Christi Cathedral (Oct. 4, 2006) (stating that “Jesus has told us that
vengeance is to play no part in our lives, that forgiveness is what we
should aspire to,” and that “[t]he Catholic bishops have recently issued
a call to the Catholic community . . . to join in the Catholic Campaign
to End the Use of the Death Penalty . . . as a moral commitment,” but
prefacing her remarks by “mak[ing] . . . very clear” that “[m]y
religious views play no role, and in my view, can play no role in the
judgments I am called upon to make as a judge”); In re Inquiry
Concerning a Judge, William C. Gridley, 417 So. 2d 950, 954-55 (Fla.
40
falls within the Code’s authorization to “speak, write, lecture,
and teach on both law-related and nonlegal subjects.” Canon 4;
see Comm. on Codes of Conduct, Advisory Op. 93 (2009).
The question of concern, however, is whether such
expression would lead “reasonable minds, with knowledge of all
the relevant circumstances disclosed by a reasonable inquiry,
[to] conclude that the judge’s . . . impartiality . . . is impaired.”
Canon 2A, cmt. In essence, the question is whether the judge’s
statements would cause a reasonable person to doubt the judge’s
ability to set aside her religious views and follow the law. Judge
Jones states that she made clear during the lecture that she
understood the difference between her personal views and her
obligations as a judge. See Jones Recollections 5 (stating that
she said: “I am a Christian who adheres to the tradition. As a
judge, I follow the law.”). The affiants supporting the
Complaint confirm that she did in fact emphasize this point. See
Student C Aff. ¶ 5 (stating Judge Jones said that, “[a]lthough she
personally supported the death penalty, she understood her job
as applying the law”); Student F Aff. ¶ 5 (same); see also
Bookman Aff. ¶ 4 (“Judge Jones noted that . . . , while she was
personally a supporter of the death penalty, her job as a judge
obliged her to apply whatever legislation the legislature
enacted.”); Student B Aff. ¶ 5 (same). Given that preface to her
remarks, we do not find a violation of the misconduct rules. Cf.
United States v. Ciavarella, 716 F.3d 705, 722-23 (3d Cir. 2013)
(holding that recusal was unwarranted where, although a judge
expressed his personal opinion of a defendant outside of court,
“he also expressly stated that his personal opinion would not
guide his rulings”); In re Inquiry Concerning a Judge, Gridley,
1982) (holding that a Florida judge’s statements, “express[ing] his
views on Christian forgiveness, and . . . against capital punishment,”
did not constitute ethical violations because the judge “made it clear
that he was duty bound to follow the law and that he would do so”).
41
417 So. 2d at 954-55 (holding that a Florida judge’s statements,
“express[ing] his views on Christian forgiveness, and . . . against
capital punishment,” did not constitute an ethical violation
because the judge “made it clear that he was duty bound to
follow the law and that he would do so”).
F. Criticism of Federal Death Penalty Prosecutions
The Complaint alleges that Judge Jones “criticized the
conduct of Justice Department prosecutors who handle federal
death penalty cases, . . . accusing them of treating the death
penalty process as an ‘elaborate game’ and using methods that
were wasteful of taxpayer dollars.” Compl. 10. Those remarks
appear to have come under the lecture’s topic heading of, “Is the
death penalty working?”
Whether or not she used the quoted language, Judge Jones
states that she did criticize federal prosecutions, saying that she
told the audience the procedures for charging and imposing the
death penalty were “incredibly convoluted.” Special Counsel
Report 31; see Jones Recollections 17 n.22 (“I do not recall
whether I referred to the federal death penalty process, in
shorthand summary, as a ‘game.’ . . . I was questioning the
reasonableness and cost-effectiveness of DOJ procedures.”);
Jones Hr’g Tr. 8 (“I did criticize the Department of Justice for
pursuing capital cases in a very inefficient way.”). She stressed
that, while such prosecutions “cost[] quite a bit of money,” the
conviction rate is “only about fifty percent,” and “there have
been only two executions of federal defendants since the 1990s.”
Jones Recollections 17-18. The notes of one member of the
audience, which are consistent with the other evidence, state that
Judge Jones said she had been astonished to learn that many
federal prosecutors charge crimes as death-penalty eligible,
requiring district courts to appoint two highly trained defense
lawyers, and that thereafter the Justice Department often decides
42
not to pursue the death penalty. Special Counsel Report 32; see
also Jones Hr’g Tr. 20-21; Bookman Aff. ¶ 23.
The commentary to Canon 4 states: “[A] judge is in a
unique position to contribute to the law, the legal system, and
the administration of justice, including revising substantive and
procedural law and improving criminal and juvenile justice. To
the extent that the judge’s time permits and impartiality is not
compromised, the judge is encouraged to do so . . . .” Canon 4,
cmt. As the Judicial Council of the Ninth Circuit explained:
Engaging in such law-related activities -- including
speeches that comment on current events and legal
developments -- is permitted not only because judges
are citizens, but because they are particularly
knowledgeable on such topics. Their speech may thus
enhance the public discourse and lead to a more
informed citizenry.
In re Complaint of Judicial Misconduct, 632 F.3d 1289, 1289
(9th Cir. Jud. Council 2011); see id. (holding that a judge’s
speeches about “the direction of immigration law and a
campaign finance controversy” did not violate the Code of
Conduct or constitute misconduct).
Judge Jones’ critique of the manner in which the Justice
Department prosecutes death penalty cases falls well within this
permitted scope of activity. Indeed, a committee of the Judicial
Conference of the United States has recently issued a report
citing similar problems with such prosecutions, albeit from a
different perspective.20 Of course, the Code’s approval of such
20
See COMM. ON DEFENDER SERVICES, REPORT OF THE JUDICIAL
CONFERENCE 11 n.7 (Sept. 2013) (“In the vast majority of death-
eligible cases, the local U.S. attorney does not recommend, nor does
43
public comment comes with the caveat that it not “detract from
the dignity of the judge’s office, interfere with the performance
of the judge’s official duties,” or “reflect adversely on the
judge’s impartiality.” Canon 4. Judge Jones’ general criticism
of federal prosecutions, made without reference to particular
prosecutors or counsel, did not contravene that admonition.
G. Criticism of the United States Supreme Court
The Complaint alleges that Judge Jones “improperly
expressed ‘contempt’ for the United States Supreme Court rules,
‘generally disparage[d]’ the Supreme Court, [and] was
‘dismissive of the Supreme Court’s death penalty decision[s]
regarding juveniles and the mentally retarded.’” Compl. 10.
More specifically, the affidavits attached to the Complaint allege
that Judge Jones said, among other things, that “the Supreme
Court went on a real ‘judicial law-making binge’” in the 1970s,
Bookman Aff. ¶ 20; that “the whole area of law was like a ‘zoo’
throughout the 1980’s,” id.; and that the Court “went on a ‘new
spree’ in the early 2000’s ‘micromanaging’ the death
penalty . . . [through] Atkins [v. Virginia, 536 U.S. 304 (2002),]
and Roper [v. Simmons, 543 U.S. 551 (2005)],” id. ¶ 21. She
further said, an affiant alleges, that the Supreme Court’s “next
attempt at meddling with the death penalty will come by
‘back-dooring’ through the Martinez [v. Ryan, 132 S. Ct. 1309(2012),] case the right to counsel in post-conviction
proceedings.” Bookman Aff. ¶ 21. See also, e.g., Student B
Aff. ¶ 20; Student C Aff. ¶ 10.
the U.S. Attorney General approve, seeking the death penalty, yet
defense counsel and the judiciary incur substantial costs from the time
of indictment on a death-eligible charge until the Attorney General
makes the ‘non-death’ decision, which can take place years after the
indictment.”).
44
Judge Jones does not dispute that she sharply criticized the
Supreme Court’s death penalty jurisprudence. The critique
came as part of her remarks regarding the question, “Is capital
punishment working?” Special Counsel Report 33. As she
explains:
Regarding constitutionality, I said that as an advocate
of constitutional interpretation that is based on its
original meaning, the question is settled for me by the
fact that capital punishment is mentioned several times
in the United States Constitution. The Framers
believed the death penalty to be constitutional, and I
therefore do not personally believe that the Supreme
Court should be allowed to conclude that “evolving
standards of decency” render this punishment “un-
constitutional.”
Jones Recollections 3. She says that she “probably did” use the
phrase “judicial law making binge” to characterize the Supreme
Court’s early death penalty jurisprudence. Special Counsel
Report 33; see Jones Hr’g Tr. 17-18. She says that, “[i]f [she]
said the process was a ‘zoo,’” she was referring to the
confluence of “the rapid doctrinal changes; the intricacies of
habeas law; and the plethora of last-minute petitions.” Jones
Recollections 12. Although she does not recall whether she
used the phrase “new spree” to refer to the more recent cases of
Atkins and Roper, she says that she may have used the term
“micromanaging” to refer to those cases, and may have used the
term “back-dooring” to refer to the “potential importation of the
right to counsel in habeas through” Martinez and the then-
pending case of Trevino v. Thaler, 133 S. Ct. 1911 (2013).
Special Counsel Report 33; see Jones Hr’g Tr. 18-20. In the
course of her critique, Judge Jones recalls relating a quotation,
which she attributed to Justice White, referring to the “Court’s
‘death penalty jurisprudence, if you can call it that.’” Jones
45
Recollections 11-12; see also Bookman Aff. ¶ 21. She also
recalls saying, as the affiants allege, that the “the Supreme Court
had managed to effect in this area what it had not done for
abortion -- making it ‘safe, legal and rare.’” Special Counsel
Report 33; Jones Recollections 18; Jones Hr’g Tr. 20; see also
Bookman Aff. ¶ 22.
But just as there is no dispute that Judge Jones criticized the
Supreme Court, there is likewise no dispute that merely
criticizing the Court does not constitute judicial misconduct.
See, e.g., In re Charges of Judicial Misconduct, 404 F.3d at 699(finding that a judge’s public critique of Bush v. Gore did not
raise an issue of incompetence or misconduct). As noted above,
the Code of Conduct encourages judges to “speak, write, lecture,
and teach on both law-related and nonlegal subjects,” Canon 4,
and “to contribute to . . . revising substantive and procedural law
and improving criminal and juvenile justice,” Canon 4, cmt.
This authorization extends to commenting on “substantive legal
issues.” Comm. on Codes of Conduct, Advisory Op. No. 93, at
3 (2009). As Advisory Opinion 93 states: “The evolution and
exposition of the law is at the core of a judge’s role. Judges,
therefore have the ability to make a unique contribution to
academic activities such as teaching and scholarly writing,
which similarly serve to advance the law.” Id.It would be all but impossible for a judge to urge changes
in the course of the law, or even to comment on substantive
legal issues, without being able to reference and criticize
decisions of the Supreme Court. Not surprisingly, then, there is
a long tradition of lower court judges criticizing the Court on
issues of constitutional law.21 Indeed, there is a long tradition of
21
See, e.g., J. HARVIE WILKINSON III, COSMIC CONSTITUTIONAL
THEORY: WHY AMERICANS ARE LOSING THEIR INALIENABLE RIGHT
TO SELF-GOVERNANCE 57-58 (2012) (criticizing District of Columbia
46
judges specifically criticizing the Court’s death penalty
jurisprudence, including much criticism from the opposite
perspective of Judge Jones.22 And as Mr. Bookman
acknowledged during his testimony, there is no objective line we
v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561
U.S. 742 (2010)); Patricia M. Wald, Two Unsolved Constitutional
Problems, 49 U. PITT. L. REV. 753, 757 (1988) (arguing that the
distinction between limits on campaign contributions and expenditures
in Buckley v. Valeo, 424 U.S. 1 (1976), “severely impedes a coherent
or comprehensive electoral finance law”); J. Skelly Wright, Politics
and the Constitution: Is Money Speech?, 85 YALE L.J. 1001, 1005
(1976) (criticizing Buckley v. Valeo for “misconceiv[ing] the First
Amendment” and “accept[ing] far too narrow a conception of political
dynamics in our society”); Henry J. Friendly, “Some Kind of
Hearing,” 123 U. PA. L. REV. 1267, 1316-17 (1975) (arguing that in
“the mass justice area the Supreme Court has yielded too readily to the
notions that the adversary system is the only appropriate model . . . ,
and consequently has been too prone to indulge in constitutional
codification,” and criticizing Goss v. Lopez, 419 U.S. 565 (1975));
Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on
Criminal Judgments, 38 U. CHI. L. REV. 142, 160-62 (1970)
(criticizing the Court’s decision, in Kaufman v. United States, 394
U.S. 217 (1969), that a claim of unconstitutional search and seizure is
cognizable in a 28 U.S.C. § 2255 proceeding).
22
See, e.g., William Fletcher, Our Broken Death Penalty, James
Madison Lecture, NYU Law School (Oct. 15, 2013), available at
http://www.law.nyu.edu/news/Madison-Lecture-2013; Rosemary
Barkett, Judicial Discretion and Judicious Deliberation, 59 FLA. L.
REV. 905, 926-28 (2007); Carolyn Dineen King, Speech at Red Mass
at Corpus Christi Cathedral (Oct. 4, 2006); Stephen Reinhardt, The
Supreme Court, The Death Penalty, and the Harris Case, 102 YALE
L.J. 205, 205, 215 (1992). See also, e.g., Ruth Bader Ginsburg,
Speech at the U.C. Hastings College of the Law (Sept. 15, 2011);
William J. Brennan, Jr., Constitutional Adjudication and the Death
Penalty, 100 HARV. L. REV. 313, 331 (1986).
47
could draw that would permit a judge to criticize the Court from
one direction and not from the other. Bookman Hr’g Tr. 4-8.
There is no doubt that Judge Jones used sharp language in
her critique. So, too, did some of the judges cited above. See
supra notes 19, 21, 22. But the question before us is not
whether the members of this Committee would have used
similar language; rather, the question is whether that language
crossed a line that would denigrate public confidence in the
judiciary’s integrity and impartiality. See Canons 1, 2A, 3. That
line is crossed when a judge not only criticizes the Court, but
suggests an intention not to follow its holdings. In a hierarchical
legal system like ours, crossing that line telegraphs an intent to
defy the rule of law. There is no evidence, however, that Judge
Jones crossed that line during her lecture at the University of
Pennsylvania. To the contrary, as we noted above, she told the
audience that, whatever her views, “she understood her job as
applying the law.” Student C Aff. ¶ 5; Student F Aff. ¶ 5
(same); Jones Recollections 2 (“I noted that as a federal judge,
it is my duty to apply the law, regardless what I may think of
it.”); Jones Hr’g Tr. 6 (“More than once I told the audience that
my duty as a federal judge is to follow the law articulated by the
Supreme Court.”). Accordingly, we do not find misconduct in
Judge Jones’ critique of the Supreme Court’s death penalty
jurisprudence. Cf. Ciavarella, 716 F.3d at 722-23 (holding that
recusal was unwarranted where, although a judge expressed his
personal opinion of a defendant outside of court, “he also
expressly stated that his personal opinion would not guide his
rulings”); In re Sherwin Williams, 607 F.3d 474, 478 (7th Cir.
2010) (finding that any “reasonable person would understand”
that a judge’s criticism of law he was “obligated to follow” did
not jeopardize his impartiality).
48
H. Tone of the Comments
In addition to the content of Judge Jones’ remarks, the
Complaint alleges that they were delivered with “disgust,”
“outrage,” or “contempt,” Compl. 5, 6, 8, and characterizes them
as “dismissive,” “personal,” “emotional,” “disrespectful,”
“hostile,” and “inflammatory,” id. at 2, 5, 6, 8, 10. The
Complaint further alleges that Judge Jones “lost her composure”
during the question-and-answer period with Mr. Bookman that
followed the lecture. Id. at 3. And some of the affiants aver
that, “[b]y the end of the question and answer period, . . . [s]he
became combative, her tone of voice and demeanor were angry
and defensive, and the atmosphere in the room was tense.”
Student F Aff. ¶ 15; see Student D Aff. ¶ 15; Student E Aff.
¶ 17. This kind of “hostile rhetoric,” the Complaint charges,
“severely undermines ‘public confidence’ in the federal
judiciary,” in violation of the Judicial-Conduct Rules and
Canons 1, 2, and 3. Compl. 7-10.
As we have already indicated, in the absence of a recording
of the lecture, we are unable to determine the nature of Judge
Jones’ tone or demeanor and so are unable to make a finding
based on a preponderance of the evidence. Some witnesses
found fault with the judge’s tone, characterizing it as does the
Complaint. See Special Counsel Report 35-36 & n.162; Student
B Aff. ¶¶ 12, 35; Student C Aff. ¶ 17; Student D Aff. ¶ 15;
Student E Aff. ¶¶ 6, 14, 17; Student F Aff. ¶¶ 7, 15. But others
did not. See Special Counsel Report 35-36 & nn.162, 166;
Student Decl. ¶ 27 (“I would describe Judge Jones’ tone of voice
and deportment in public as professional, formal, and serious.”).
There does appear to be general agreement that the heat in the
room rose in an exchange between the judge and Mr. Bookman
during the question-and-answer period. But there is
considerable disagreement as to which of the two started the
fire. Special Counsel Report 35-36 & nn.168, 169; id. at 46 &
49
n.220. Mr. Bookman restricted his own affidavit to the
substance of the judge’s remarks and made no allegations about
her tone.
In light of these conflicting reports, and in the absence of a
recording that might resolve them, a preponderance of the
evidence does not support a finding that Judge Jones’ tone or
demeanor constituted misconduct under the Judicial-Conduct
Rules.
VI
Finally, we address the Complaint’s allegation that, in the
course of her lecture, “Judge Jones discussed at some length
individual cases.” Compl. 6. This, the Complaint charges,
violated Canon 3A(6), which states that “[a] judge should not
make public comment on the merits of a matter pending or
impending in any court.”
The Complaint focuses on four cases: “the [Ramiro] Ibarra
case, which was pending in her court at the time of the lecture”;
the “[Larry] Swearingen and [Marcus] Druery” cases, which
“were pending in the state courts”; and the case of Elroy
Chester, who “was scheduled for execution at the time of her
lecture.” Compl. 9. As the Complaint notes, “Judge Jones
wrote the panel opinions in the Ibarra, Chester, and Druery
cases,” and “was on the Swearingen panel.” Id. In the context
of discussing the Ibarra case, Judge Jones also acknowledges
discussing a case involving Carlos Trevino. Jones Hr’g Tr. at
26. Judge Jones denies discussing the merits of any pending
case, stating that, with respect to “cases that had been decided
in” the Fifth Circuit, she simply “related the facts of the crimes
underlying the convictions” and “described the disposition of
issues raised like Atkins.” Jones Recollections 23. Her purpose,
50
she said “was to show how extraordinarily heinous these crimes
are.” Jones Hr’g Tr. 7.23
23
The Complaint also avers that Judge Jones discussed the Betty
Lou Beets, Walter Bell, and Larry Hatten cases. Compl. 6. It does not
allege that those remarks transgressed Canon 3A(6)’s proscription
against commenting on pending or impending matters, and an
extensive docket search has disclosed no such matters. See Special
Counsel Report 39-43; Special Counsel Case Status Supplement 3-4.
Beets had been executed 13 years before the lecture. Bell was serving
a life sentence in Texas, his death sentence having been vacated by
state courts in 2004, with no pending or impending matters. Judge
Jones authored an opinion affirming the district court’s denial of
Hatten’s habeas petition in June 2009; the Supreme Court denied
certiorari in February 2010.
As noted in Part V.B above, Judge Jones also acknowledges
discussing another case -- that of Paul Hardy, which the Complaint
does not mention by name but does mention by description (a case
involving a “hitman,” Compl. 5). The Complaint does not allege that
this discussion violated Canon 3A(6), and we conclude that it does
not. In 1999, the Fifth Circuit had vacated Hardy’s death sentence and
remanded his case for resentencing. United States v. Causey, 185 F.3d
407, 411 (5th Cir. 1999). On December 6, 2012, a Fifth Circuit panel
that did not include Judge Jones affirmed Hardy’s subsequent life
sentence. United States v. Hardy, 499 F. App’x 388, 390-91 (5th Cir.
2012). The mandate issued on December 28, 2012; no petition for
rehearing en banc was filed. On April 3, 2013, after Judge Jones’
lecture, Hardy filed a petition for certiorari in the Supreme Court,
which was denied on October 7, 2013. Hardy v. United States, 134 S.
Ct. 60 (2013). Although Hardy’s case may have been “impending” in
the Supreme Court and “pending or impending” in the Fifth Circuit for
reasons discussed below, see infra Part VI.A, the sole matter at issue
at that point in the litigation was Hardy’s challenge to the sufficiency
of the indictment to support a sentence of life imprisonment. See
Hardy, 499 F. App’x at 390-91. There is no suggestion that Judge
Jones discussed that issue during her lecture.
51
As noted in Part II, notwithstanding the general prohibition
on commenting on the merits of pending or impending matters,
the Code contains an exception for offering such comments in
the context of “scholarly presentations made for purposes of
legal education.” Canon 3A(6). That exception, in turn, is
limited by the requirement that the comment “not denigrate
public confidence in the judiciary’s integrity and impartiality,
which would violate Canon 2A.” See Canon 3A(6), cmt. A
comment with that kind of effect would also likely constitute
“misconduct” under the Judicial-Conduct Rules. See Judicial-
Conduct Rule 3(h)(2) (defining misconduct as, inter alia,
“conduct occurring outside the performance of official duties if
the conduct might have a prejudicial effect on the administration
of the business of the courts, including a substantial and
widespread lowering of public confidence in the courts among
reasonable people”).
We now proceed to examine Judge Jones’ comments
regarding the five individuals to determine whether those
comments violated Canon 3A(6), Canon 2A, or the Judicial-
Conduct Rules. In doing so, we must consider: (1) whether any
matters involving those individuals were pending or impending
in any court; (2) if so, whether the comments were on the merits
of those matters; (3) if so, whether the “scholarly presentations”
exception applies; and (4) even if so, whether the comments
denigrate public confidence in the judiciary’s integrity and
impartiality. Although we find that a number of matters
involving those individuals were pending or impending, and that
some of the judge’s comments may have been on the merits of
those matters, we conclude that the comments did not violate
Canon 3A because the scholarly presentations exception applies.
We also conclude that the comments did not denigrate public
confidence in the judiciary’s integrity or impartiality, and thus
did not violate Canon 2A or constitute misconduct.
52
A. “Pending or Impending in Any Court”
In United States v. Microsoft, this circuit noted that Canon
3A’s prohibition against commenting about pending or
impending matters applies -- as its text makes clear -- to cases
in “any court, state or federal, trial or appellate.” 253 F.3d 34,
112 (D.C. Cir. 2001). Neither the Code nor the Rules defines
“pending” or “impending” matters. The ABA Model Code,
which is not binding on federal judges, defines a “pending
matter” as “a matter that has commenced.” A.B.A., MODEL
CODE OF JUDICIAL CONDUCT, Terminology. “As the term
‘impending’ indicates, the prohibition begins even before a case
enters the court system, when there is reason to believe a case
may be filed.” Microsoft, 253 F.3d at 112. Cf. A.B.A., MODEL
CODE OF JUDICIAL CONDUCT, Terminology (defining an
“impending matter” as one “that is imminent or expected to
occur in the near future”). The commentary to Canon 3A(6)
further provides that “[t]he admonition against public comment
about the merits of a pending or impending matter continues
until the appellate process is complete.” Canon 3A(6), cmt.; see
Microsoft, 253 F.3d at 112 (quoting Canon 3A(6), cmt.).
With this background, we proceed to examine whether any
matters involving the individuals upon whose cases Judge Jones
commented were pending or impending in any court.
1. Druery. At the time of Judge Jones’ February 2013
lecture, Druery was on death row in Texas. On July 20, 2011,
Judge Jones had written an opinion denying Druery’s request for
a certificate of appealability (COA) from a district court
decision denying his habeas petition. Druery v. Thaler, 647
F.3d 535, 537 (5th Cir. 2011). The Supreme Court denied
certiorari on February 21, 2012, Druery v. Thaler, 132 S. Ct.
1550 (2012), a year before Judge Jones’ lecture. Thereafter,
Druery continued to file letters and further habeas petitions with
53
the federal district court. See Special Counsel Report 41. On
January 17, 2013, the district court denied Druery’s request for
a stay of execution, reversal of his conviction, or a new trial
date. Order at 2, Druery v. Thaler, No. 09-835 (S.D. Tex. Jan.
17, 2013). It did not, however, address his July 2012 plea for
relief relating to his alleged hypothyroidism and an unspecified
claim of evidentiary error at his trial. See Letter from Marcus
Druery to Judge Gray Miller, Druery v. Thaler, No. 09-835
(S.D. Tex. July 23, 2012).
Although there was no matter pending in the Fifth Circuit
in February 2013, the district court’s denial of Druery’s request
for a stay made an appeal to the Circuit impending, in the sense
that there was “reason to believe a case may be filed,”
Microsoft, 253 F.3d at 112. Similarly, matters were pending or
impending in the district court because the appellate process was
not yet complete, see Canon 3A(6), cmt., because Druery’s letter
of July 2012 had not yet been addressed, and in light of Druery’s
practice of filing numerous letters and motions. See Docket
Entries 27, 28, 29, 30, 43, 44 & 45, Druery v. Thaler, No. 09-
835 (S.D. Tex.). Indeed, Druery continued to file letters in the
district court well after the date of Judge Jones’ lecture, see
Docket Entries 48, 49, 50, 53 & 54, Druery v. Thaler, No. 09-
835 (S.D. Tex.), and, on November 12, 2013, the court entered
an order appointing counsel for Druery “throughout the
remainder of his federal habeas process,” Order Nunc Pro Tunc
Appointing Counsel, Druery v. Stephens, No. 09-835 (S.D. Tex.
Nov. 12, 2013).
Matters were also pending in Texas state courts at the time
of the lecture. “Shortly before his scheduled execution on
August 1, 2012,” Druery had filed a motion in Texas state court
challenging his competency to be executed on the ground that he
suffered from a “psychotic disorder [that] prevent[ed] a rational
understanding of the connection between his crime and
54
punishment.” Druery v. State, 412 S.W.3d 523, 526, 530-31
(Tex. Crim. App. 2013). The motion led to a number of
hearings and to a stay of execution and the ordering of further
proceedings to assess competency. See id.
2. Swearingen. Swearingen was also on death row in Texas
at the time of Judge Jones’ lecture. No matters involving
Swearingen were pending or impending in the Fifth Circuit at
the time. On April 7, 2011, a panel that included Judge Jones
had affirmed the district court’s dismissal of Swearingen’s
successive habeas corpus petition, which was based on a claim
of newly discovered evidence and ineffective assistance of
counsel. Swearingen v. Thaler, 421 F. App’x 413, 414 (5th Cir.
2011).24 On May 9, 2011, the same panel rejected Swearingen’s
attempt to file another habeas petition based on a stand-alone
claim of actual innocence. Order, In re Swearingen, No. 11-
20276 (May 9, 2011). On February 27, 2012, the Supreme
Court denied Swearingen’s petition for a writ of certiorari
seeking review of the Fifth Circuit’s April 7, 2011 decision.
Swearingen v. Thaler, 132 S. Ct. 1632 (2012).
There was, however, a matter impending in the U.S.
Supreme Court and pending or impending in the Texas state
courts at the time of the University of Pennsylvania lecture. The
Texas courts had denied the last of Swearingen’s several state
habeas petitions in December 2012. Ex Parte Swearingen, No.
53613-10, 2012 WL 6200431, at *1 (Tex. Crim. App. Dec. 12,
2012). In March 2013, Swearingen sought a writ of certiorari,
which the Supreme Court denied in June 2013. See Swearingen
v. Texas, 133 S. Ct. 2826 (2013).
24
Earlier panels, also including Judge Jones, had considered
previous habeas challenges by Swearingen. See In re Swearingen, 556
F.3d 344 (5th Cir. 2009); Swearingen v. Quarterman, 192 F. App’x
300 (5th Cir. 2006), cert. denied, 549 U.S. 1216 (2007).
55
3. Chester. A matter involving a third individual, Elroy
Chester, was impending -- although not pending -- in the Fifth
Circuit at the time of the February 20, 2013 lecture.
In December 2011, Judge Jones authored an opinion for the
Circuit affirming the district court’s denial of Chester’s petition
for a writ of habeas corpus, Chester v. Thaler, 666 F.3d 340, 350
(5th Cir. 2011), and the Supreme Court denied certiorari on
October 29, 2012, Chester v. Thaler, 133 S. Ct. 525 (2012). On
the day of the lecture, Chester was scheduled for execution on
April 24, 2013. The execution was subsequently delayed until
June 12, 2013. On June 4, Chester filed a motion to stay his
execution, recall the mandate, and recuse Judge Jones from the
case, based on the allegations that are in the Complaint now
before us. Judge Jones denied the motion to recuse. Chester v.
Thaler, No. 08-70023 (June 11, 2013). On the same day, over
her dissent but without expressing a view on the merits of the
Complaint, the Fifth Circuit panel assigned to the case issued an
order directing the Clerk’s Office to assign the matter to another
panel. Chester v. Thaler, 522 F. App’x 208, 208 & n.2 (5th Cir.
2013). The new panel denied Chester’s stay and recall motions
the next day. Chester v. Thaler, No. 08-70023 (June 12, 2013).
Thereafter, the Supreme Court denied certiorari, Chester v.
Thaler, 133 S. Ct. 2823 (2013), and Chester was executed.
Because defendants routinely file last-minute, successive
habeas petitions and requests for stays prior to scheduled
executions,25 there was “reason to believe,” Microsoft, 253 F.3d
25See, e.g., Sawyer v. Whitley, 505 U.S. 333, 341 (1992) (“In the
every day context of capital penalty proceedings, a federal district
judge typically will be presented with a successive or abusive habeas
petition a few days before, or even on the day of, a scheduled
execution . . .”); Baze v. Rees, 553 U.S. 35, 81 n.17 (2008) (Stevens,
J., concurring in the judgment) (“‘[T]here is a strong possibility that
56
at 112, at the time of the lecture that a stay motion like Chester’s
would be filed. This rendered that matter “impending” within
the meaning of Canon 3A(6). Id. And it is for this reason that
the Committee on Codes of Conduct of the Judicial Conference
advises judges as follows: “When writing about a case the judge
has heard, even after final disposition, the judge
should . . . consider whether the comments might afford a basis
for collateral attack on the judgment. A judge must avoid
writings that are likely to lead to disqualification.” Comm. on
Codes of Conduct, Advisory Op. 55 (2009).
4. Ibarra and Trevino. Finally, Judge Jones acknowledges
that a petition for rehearing en banc in the case of Ramiro Ibarra
was “technically pending in the Fifth Circuit” at the time of her
lecture. Jones Hr’g Tr. 7; see Jones Recollections 22. She had
forgotten this, she said, “because the panel ruled in June or July
of 2012, and Ibarra filed a petition for rehearing en banc based
on the just-issued Supreme Court decision of Martinez [v. Ryan,
132 S. Ct. 1309 (2012),] which dealt with cause for procedural
defaults and habeas.” Jones Hr’g Tr. 7.
After being convicted and sentenced in the Texas state
courts, Ibarra had filed a habeas petition in federal district court.
The petition was denied and, in June 2012, Judge Jones authored
an opinion denying Ibarra’s motion to vacate the district court’s
judgment in light of Martinez, which had been decided in March
2012. See Ibarra v. Thaler, 687 F.3d 222, 227 (5th Cir. 2012).
The principal point addressed in the June 2012 Ibarra opinion
was the district court’s determination that Ibarra had
procedurally defaulted his ineffective-assistance-of-trial-counsel
the conviction or sentence will be reconsidered . . . [in] last-minute
stays of execution for decades after the crime.’” (quoting Alex
Kozinski & Sean Gallagher, Death: The Ultimate Run-On Sentence,
46 CASE W. RES. L. REV. 1, 17-18 (1995))).
57
claim by failing to raise it in a timely matter in the Texas courts.
In Martinez, the Supreme Court held that, in states in which
defendants must bring claims of ineffective assistance in the first
instance on collateral rather than direct review (as the Court
found was true in Arizona, the state in which Martinez was
convicted), a showing that a defendant received ineffective
assistance (or no counsel) in his initial state habeas proceeding
may excuse his procedural default of an ineffective-assistance-
of-trial-counsel claim. 132 S. Ct. at 1320. Finding that, unlike
Arizona’s procedures, “Texas’ procedures do not mandate that
ineffectiveness claims be heard in the first instance in habeas
proceedings,” Judge Jones concluded that “Ibarra is not entitled
to the benefit of Martinez for his ineffectiveness claims.”
Ibarra, 687 F.3d at 227.
In August 2012, Judge Jones also authored an opinion
denying Ibarra’s application for a certificate of appealability
from the district court’s denial of habeas relief. Ibarra v.
Thaler, 691 F.3d 677, 686 (5th Cir. 2012). In so doing, she
concluded that none of Ibarra’s claims satisfied the standard for
granting a COA. Those claims were that: (1) he was “mentally
retarded” and therefore, under Atkins, could not be subjected to
the death penalty; (2) local law enforcement had failed to inform
him of his right to consult the Mexican consul under the Vienna
Convention on Consular Relations; and (3) his trial counsel was
ineffective in his investigation, development and presentation of
mitigation evidence, and the court should apply Martinez to his
case.
On September 14, 2012, Ibarra petitioned for rehearing en
banc of both the June and August decisions. The petition was
based solely on the panel’s analysis of Martinez, and contended
that Martinez applied to cases in Texas. See Petition for
Rehearing En Banc, Ibarra v. Thaler, 691 F.3d 677 (5th Cir.
2012) (No. 11-70031). At the time of the lecture, the Fifth
58
Circuit had “taken no action on this en banc petition because of
the intervening cert. grant in Trevino v. Thaler, [449 F. App’x
415 (5th Cir. 2011),] which posed [the same] issue to the
Supreme Court.” Jones Recollections 22. The Fifth Circuit did
not ultimately rule on Ibarra’s petition until July 17, 2013.
Ibarra v. Stephens, 723 F.3d 599, 600 (5th Cir. 2013).
As noted, Judge Jones also acknowledges that Trevino -- a
Fifth Circuit case not specifically cited in the Complaint, but
upon which she also commented -- was pending before the
Supreme Court at the time of her lecture. Jones Recollections
15-16, 22. The Court had granted Trevino’s petition for
certiorari on the question of whether Martinez extended to cases
in Texas. 133 S. Ct. 534, 535 (2012). Trevino wanted the Court
to extend Martinez to states that did not require defendants to
bring claims of ineffective assistance in the first instance on
collateral review, but nonetheless made it practically impossible
for those claims to be raised on direct review. See Petition for
Writ of Certiorari, Trevino v. Thaler, 133 S. Ct. 1911 (2013)
(No. 11-10189), 2012 WL 5353864 (filed April 30, 2012). The
Court had not yet ruled at the time of Judge Jones’ lecture; oral
argument in Trevino took place on February 25, 2013, just five
days later. This rendered Trevino not only pending in the
Supreme Court, but also “pending or impending” in the Fifth
Circuit. See Canon 3A(6), cmt. (providing that the “admonition
against public comment about the merits of a pending or
impending matter continues until the appellate process is
complete”); Microsoft, 253 F.3d at 112. Indeed, on May 28,
2013, the Supreme Court vacated Trevino and remanded the
case to the Fifth Circuit, holding along the lines advanced in
Ibarra’s petition for reconsideration en banc. Trevino v. Thaler,
133 S. Ct. 1911, 1921 (2013) (“[W]here, as [in Texas, a] state
procedural framework, by reason of its design and operation,
makes it highly unlikely in a typical case that a defendant will
have a meaningful opportunity to raise a claim of ineffective
59
assistance of trial counsel on direct appeal, our holding in
Martinez applies.”).
On June 5, 2013, Ibarra moved to recuse Judge Jones from
hearing his pending petition for rehearing en banc, based on the
allegations in the instant Complaint, which had been filed that
day. The recusal motion was denied on June 10, 2013, in an
order signed by Judge Jones. Order, Ibarra v. Thaler, No. 11-
70031 (June 10, 2013). The three-judge panel, which included
Judge Jones, then vacated its prior decision and that of the
district court to the extent it was inconsistent with Trevino, and
it remanded Ibarra to the district court for further proceedings.
Ibarra v. Stephens, 723 F.3d 599, 600 (5th Cir. 2013). In
January 2014, the Fifth Circuit likewise remanded Trevino to the
district court for reconsideration of his ineffective assistance
claim. Trevino v. Stephens, 740 F.3d 378, 378 (5th Cir. 2014).
5. Summary. In sum, we find that there were a number
of matters involving the individuals whom Judge Jones
discussed that were pending or impending in courts at the time
of her lecture. Matters involving Druery were impending in the
Fifth Circuit, pending or impending in federal district court, and
pending in the Texas state courts. Although no matters
involving Swearingen were pending or impending in the Fifth
Circuit, there was an impending matter in the U.S. Supreme
Court and pending or impending matters in the Texas courts.
With respect to Chester, there was a matter impending in the
Fifth Circuit. Finally, as Judge Jones acknowledges, at the time
of the lecture a matter involving Ibarra was pending in the Fifth
Circuit and a matter involving Trevino was pending in the
Supreme Court -- and therefore pending or impending in the
Fifth Circuit as well. Accordingly, we must proceed to consider
whether the judge’s comments went to the merits of any of the
pending or impending matters.
60
B. “On the Merits”
To violate Canon 3A(6), a judge’s comments must be about
a pending or impending matter and must be “on the merits” of
such a matter. Judge Jones does not believe that she discussed
the merits of any pending case: “With respect to . . . [the] cases
that had been decided in our court, . . . I related the facts of the
crimes underlying the convictions and . . . described the
disposition of issues raised like Atkins.” Jones Recollections 23.
“Knowing the nature of these” cases, she said, “explains the
public’s usual desire that the death penalty be maintained in
law.” Id. at 6. According to Mr. Bookman, Judge Jones
introduced the cases by saying that they “illustrated the morality
of state-authorized executions.” Bookman Aff. ¶ 10; see, e.g.,
Student C Aff. ¶ 8.
Canon 3 does not define “on the merits.” The opinion that
most directly addresses the question is United States v.
Microsoft Corp., in which this circuit held that a judge’s public
comments violated Canon 3A(6) because they “disclosed his
views on the factual and legal matters at the heart of the case.
His opinions about the credibility of witnesses, the validity of
legal theories, the culpability of the defendant, the choice of
remedy, and so forth all dealt with the merits of the action.” 253
F.3d at 112. But Microsoft is only minimally illuminating, both
because the judge’s comments in that case were far over any line
that could reasonably be drawn, see, e.g., id. at 109, and because
the judge made his comments to reporters long before he entered
final judgment in the case, id. at 108.
As we discuss in this subpart, this case largely (although not
entirely) involves a judge’s descriptions of the facts and
dispositions of previously published judicial decisions in which
she participated. Although such descriptions might technically
be said to describe the “merits” of those opinions, courts have
61
generally not found impropriety in a judge’s reiteration of
statements that the judge previously made in court. See, e.g.,
Ciavarella, 716 F.3d at 719, 722-23; United States v. Barry, 961
F.2d 260, 264-65 (D.C. Cir. 1992); United States v. Yonkers Bd.
of Educ., 946 F.2d 180, 184-85 (2d Cir. 1991); see also infra
Part VI.D.
1. Druery and Swearingen. Although the attendees at the
lecture generally recalled that Judge Jones discussed the facts of
various cases at length, they rarely recalled the specifics of those
facts. See Student B Aff. ¶ 11 (stating that he does “not recall
the names of any of these cases nor . . . any of the facts”);
Student C Aff. ¶ 8 (same); Student D Aff. ¶ 8 (“I do not recall
the specific facts of these cases.”); Student E Aff. ¶ 6 (same);
Student F Aff. ¶ 7 (same). This is particularly so with respect to
the Druery and Swearingen cases. The Complaint contains no
description of what Judge Jones said about those cases at all.
Mr. Bookman’s affidavit mentions Druery by name and contains
a paragraph that may have been intended to describe what Judge
Jones said about that case (although the description diverges
from the facts of the case in some respects). See Bookman Aff.
¶ 13. No other affiant mentions either Druery or facts that
appear to fit that case. And no affiant, including Mr. Bookman,
mentions any recitation of facts by Judge Jones that even
appears to be a reference to Swearingen’s case.
More important, there is no evidence that Judge Jones
addressed the matters involving those two defendants that were
pending or impending in various courts, whether with respect to
the merits or otherwise. As noted in Part VI.A, matters
involving Druery were pending or impending in federal district
court (and, as a consequence, impending in the Fifth Circuit),
and pending in the Texas state courts. The matters in federal
district court involved various subjects, including Druery’s
personal health and an unspecified claim of evidentiary error at
62
his trial. The matters in the Texas state courts involved his
competency to be executed. See Druery v. State, 412 S.W.3d
523, 542 (Tex. Crim. App. 2013). Similarly, Swearingen had an
impending matter in the U.S. Supreme Court -- and
consequently pending or impending matters in the Texas courts
-- that ultimately raised due process claims based on allegations
of actual innocence and the state’s solicitation of false trial
testimony concerning forensic evidence. See Petition for Writ
of Certiorari, Swearingen v. Texas (No. 12-1114), 2013 WL
1083866 (filed March 12, 2013). There is no allegation that
Judge Jones discussed any of these matters.
2. Chester. According to Mr. Bookman, Judge Jones related
the facts of Chester’s case, Bookman Aff. ¶ 14, and told the
audience “that Chester claimed to be mentally retarded[,] . . . but
he still managed to go on a burglary spree,” id. ¶ 18. Describing
further comments about Chester (which are misattributed to a
different case), Bookman said the judge maintained that
Chester’s efforts to obtain a gun while still in shackles
“demonstrated this man was far too canny to be mentally
retarded.” Id. ¶ 15. This description generally matches Judge
Jones’ own description of what she told the law school audience
about the Chester case, see Jones Recollections 8-9, as well as
a point she made elsewhere in her remarks, see id. at 15; see
also Student Decl. ¶ 12 (“Judge Jones argued that the very
nature of the defendant’s crimes comprised evidence that the
defendant was not mentally retarded”); Special Counsel Report
24 & nn.121-24 (describing similar interviews with other
witnesses). It also matches what the judge wrote in her
published opinion in the Chester case.26
26
See Chester v. Thaler, 666 F.3d 340, 350 (5th Cir. 2011)
(“[Chester] masterminded a sophisticated break-in and dealt with a
crisis as it developed. Nothing about this crime suggests Petitioner
had difficulties ‘process[ing] information’ or ‘engag[ing] in logical
63
Judge Jones states that, with respect to her discussion of
Chester, she only “related the facts of the crimes underlying the
convictions” and “described the disposition of issues raised like
Atkins.” Jones Recollections 23. But it is difficult to distinguish
between merely relating, and commenting upon, the merits of an
impending matter. Here, the matter that was impending -- that
is, the matter as to which “there [was] reason to believe a
[motion] may be filed,” Microsoft, 253 F.3d at 112 -- was a
motion for a stay of execution. And the issue that the defendant
was likely to attempt to raise again was a reconsideration of the
Fifth Circuit’s earlier Atkins determination. Nonetheless,
because the point Judge Jones was making hewed so closely to
what she said in her Chester opinion, see supra note 26, it is
hard to determine that she was discussing the “merits” of an
impending case rather than reciting the “disposition” of an
earlier version of the same case. In any event, as we explain
below, even if it were the former, that discussion would fall
within the “scholarly presentations” exception to Canon 3A(6).
3. Ibarra and Trevino. Mr. Bookman’s affidavit alleges that
Judge Jones described a defendant, whom he “believe[s] she
said . . . was Ibarra,” as a Mexican national “who was claiming
to be mentally retarded but who had been able to plan a way to
get into a young woman’s house” where “there had been some
young children around” and “where he raped and killed her.”
Bookman Aff. ¶ 17. The recollections of the other affiants are
considerably vaguer. See Student B Aff. ¶ 16. Judge Jones
states that,“[w]ith respect to Ibarra,” she again only “related the
facts of the crimes underlying the convictions” and “described
the disposition of issues raised like Atkins.” Jones Recollections
23. She says that she “simply told the audience about the issue.
reasoning.’”); id. (holding that Chester, who “did not act on an
impulse, but rather ‘pursu[ed] a premeditated plan,’” did not have
“diminished mental capacity”).
64
I also mentioned that Ibarra had raised a question about the
failure of local law enforcement to inform him of his right to
consult with the Mexican consul, but again, this was a report of
what he alleged and what our panel unanimously decided, not a
‘comment’ on the merits.” Id. at 22-23.
As noted in Part VI.A.4, the matter involving Ibarra that
was pending at the time of the lecture was Ibarra’s petition for
reconsideration en banc of the panel’s rejection of his challenges
to the district court’s denial of habeas relief. The sole issue
raised by that petition was a challenge to the panel’s
determination that Ibarra’s ineffective assistance claim had been
procedurally defaulted, and that Martinez did not permit Ibarra
to avoid the default because it did not extend to cases pending
in Texas. See Petition for Rehearing En Banc, Ibarra v. Thaler,
691 F.3d 677 (5th Cir. 2012) (No. 11-70031). No one contends
that Judge Jones’ comments about Ibarra addressed that issue,
whether with respect to the merits or otherwise.
Judge Jones does acknowledge, however, that she also
discussed a case that was then pending in the Supreme Court,
Trevino v. Thaler. Jones Recollections 15-16. Although she did
not discuss the facts of the case, Jones Hr’g Tr. 26, she did tell
the audience that the Supreme Court had granted certiorari in
Trevino to review the Fifth Circuit’s holding that “Martinez did
not apply to Texas’s different procedures.” Jones Recollections
16; Jones Hr’g Tr. 26. And that was the matter that was pending
with respect to both Ibarra (in his Fifth Circuit en banc petition)
and Trevino (in his Supreme Court case).
Judge Jones states that she did not express an opinion on the
merits of the Martinez question pending in Ibarra or Trevino,
saying that she “simply told the audience about the issue.”
Jones Recollections 22-23. She acknowledges, however, that
she “prophesied that if the Court extends Martinez, it may be on
65
a path to guaranteeing court-appointed counsel in habeas cases,
which would be a dramatic and costly departure from historical
practice.” Id. at 16 (emphasis added). The italicized phrase
could be read, not merely as a recitation of the pending issue,
but as a comment on its merits. We need not resolve that
question, however, because as we discuss below, the judge’s
discussion of this issue also falls within the “scholarly
presentations” exception to the prohibition on public comment.
C. The “Scholarly Presentations” Exception
Even if a judge’s comments concern the merits of pending
or impending matters, the Code of Conduct provides that the
“prohibition on public comment on the merits does not extend
to . . . scholarly presentations made for purposes of legal
education.” Canon 3A(6).
The Code does not define the terms “scholarly
presentations” or “legal education,” but advisory opinions of the
Committee on Codes of Conduct shed some light on their
meaning. Advisory Opinion 105 notes that speaking to students
is “specifically encourage[d]” under Canon 4 because “judges
are ‘in a unique position to contribute’ to programs dedicated to
improving the law and promoting public understanding of the
legal system.” Comm. on Codes of Conduct, Advisory Op. No.
105, at 1 (2010). By contrast, the same advisory opinion notes
that participation in private law-related training programs -- in
which entities seek to train their own employees, clients or
associates -- are likely to be problematic. Id. at 2-4. Advisory
Opinion 67 makes a similar distinction, for purposes of a judge
attending educational seminars, between events sponsored by
“an accredited institution of higher learning,” which “usually
raise[] fewer concerns than sponsorship by other entities,” and
events sponsored by “a business corporation, law firm, attorney,
other for-profit entity or a non-profit organization not described
66
above,” which “should be carefully examined by the invited
judge.” Comm. on Codes of Conduct, Advisory Op. No. 67, at
2 (2009); see Comm. on Codes of Conduct, Advisory Op. No.
87, at 1, 4-6 (2010) (same regarding participation in continuing
legal education programs).
In light of these opinions and the text of the canon, we
conclude that a public lecture like the one Judge Jones gave at
the University of Pennsylvania -- on a legal topic at an
accredited law school -- falls within Canon 3A(6)’s “scholarly
presentations” exception. As Mr. Bookman himself ultimately
acknowledged, defining “scholarly” is difficult, and “if you
defined [scholarly] broadly, it was in a law school; it referenced
cases; . . . it referenced scholarly issues that are important to
anybody that studies this subject.” Bookman Hr’g Tr. 12.
Mr. Bookman was nonetheless “loath to describe this as a
scholarly presentation,” principally because it was “one-sided”
and “[t]here was no attempt at neutrality.” Id. at 9. In
particular, he thought that Judge Jones did not take seriously
“the idea of evolving standards of decency” in evaluating
various questions regarding the constitutionality of the death
penalty. Id. at 10. To take the second point first, it is plain that
many judges and many academicians vigorously dispute the
question of whether it is appropriate to consider evolving
standards of decency in making determinations under the Eighth
Amendment.27
27
Compare, e.g., Roper v. Simmons, 543 U.S. 551, 560-61
(Kennedy, J.) (stating that the Court must consider “‘the evolving
standards of decency that mark the progress of a maturing society’ to
determine which punishments are so disproportionate as to be cruel
and unusual” (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958)));
Woodson v. North Carolina, 428 U.S. 280, 293 (1976) (Stewart, J.)
(considering “evolving standards of decency”), with Roper, 543 U.S.
67Nor can judicial councils insist that lectures and law review
articles be “neutral” to be regarded as “scholarly” under Canon
3(A)6’s exception. The dictionary defines “scholarly” as “a
characteristic of scholarship,” which is in turn defined as, inter
alia, “knowledge resulting from study or research in a field,”
WEBSTER’S II NEW COLLEGE DICTIONARY 988 (1999). There is
no doubt that Judge Jones’ lecture derived from her own study
and research of death penalty cases.
This is not to say that the members of this Special
Committee disagree that, to be regarded as “scholarly” in some
sense, lectures should present both sides of an argument
objectively. But to adopt a neutrality requirement would
exclude, for better or for worse, much of what goes on in today’s
law schools and law reviews from the protection of Canon
3A(6)’s exception. See also Republican Party of Minn. v. White,
536 U.S. 765, 779 (2002) (noting, with approval, that “judges
often state their views on disputed legal issues outside the
context of adjudication -- in classes that they conduct, and in
at 608 (2005) (Scalia, J., dissenting) (arguing that the Court’s
consideration of “modern ‘standards of decency” is “mistaken”);
McGautha v. California, 402 U.S. 183, 226 (1971) (Black, J.,
concurring) (rejecting the proposition, in the Eighth Amendment
context, that the Supreme “Court should amend the Constitution by
interpretation to keep it abreast of modern ideas”); compare also, e.g.,
Arthur J. Goldberg & Alan M. Dershowitz, Declaring the Death
Penalty Unconstitutional, 83 HARV. L. REV. 1773, 1781-83 (1970)
(arguing that, in considering the constitutionality of the death penalty,
the Supreme Court must consider the “enlightened standards” of a
public fully informed of “contemporary human knowledge”), with
RAOUL BERGER, DEATH PENALTIES: THE SUPREME COURT’S
OBSTACLE COURSE 41-43 (1982) (arguing that the Supreme Court had
made a “mistake” in failing to recognize that the relevant time frame
for determining unusualness was the year in which the Eighth
Amendment was adopted).
68
books and speeches”). Indeed, such a requirement could
contradict the Code’s “encourage[ment]” of judges “to
contribute to the law, the legal system, and the administration of
justice, including revising substantive . . . law and improving
criminal . . . justice.” Canon 4, cmt (emphasis added). To
“revise” and “improve” the law may well require taking a
position that cannot be regarded as “neutral.” We do not believe
that the drafters of Canon 3A(6) intended to circumscribe the
reach of the Canon’s exception so narrowly as to undercut the
encouragement they offered judges in Canon 4.
Accordingly, we conclude that, to the extent Judge Jones’
discussion extended to the merits of pending or impending
matters, that discussion came within the “scholarly
presentations” exception and did not violate Canon 3A(6).
D. “Public Confidence in the
Judiciary’s Integrity and Impartiality”
One final issue regarding Judge Jones’ discussion of
individual cases remains to be addressed. Notwithstanding that
her lecture qualifies as a “scholarly presentation,” and that
therefore her comments regarding individual cases do not violate
Canon 3A(6), those comments could still run afoul of Canon 2A
and/or the Judicial-Conduct Rules. Canon 2A provides that a
judge “should act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary.”
Canon 2A. The Judicial-Conduct Rules define “cognizable
misconduct” as, inter alia, “conduct occurring outside the
performance of official duties if the conduct might have a
prejudicial effect on the administration of the business of the
courts, including a substantial and widespread lowering of
public confidence in the courts among reasonable people.”
Judicial-Conduct Rule 3(h)(2).
69
Particularly relevant here is the commentary to Canon
3A(6), which provides that, where “public comment involves a
case from the judge’s own court, the judge should take particular
care so that the comment does not denigrate public confidence
in the judiciary’s integrity and impartiality, which would violate
Canon 2A.” Canon 3A(6), cmt.; see Comm. on Codes of
Conduct, Advisory Opinion No. 55 (2009). Similarly, although
Canon 4 authorizes judges to “speak, write, lecture, and teach”
on “law-related subjects,” it also warns that a judge should not
do so where such activity “would reflect adversely on the
judge’s impartiality.” Canon 4; see Comm. on Codes of
Conduct, Advisory Opinion No. 55 (2009); Comm. on Codes of
Conduct, Advisory Opinion No. 93 (2009).
The key to our analysis of this issue is that, with the
exception of Trevino, Judge Jones authored or was on the panel
of all the cases about which she spoke. As we have discussed
above, few witnesses recall specifics of her descriptions of
individual cases, but to the extent that we can reconstruct them,
the descriptions appear largely to repeat descriptions contained
in the published decisions. (There is no indication that Judge
Jones described the facts of Trevino at all.) The case law, albeit
in the context of recusal rather than misconduct,28 has not
regarded such reiteration as raising a serious problem of judicial
partiality. See Ciavarella, 716 F.3d at 719 (finding recusal
unnecessary where “every [allegedly problematic] statement
attributed to [the judge] had in fact been expressed by him in his
judicial opinion”); Barry, 961 F.2d at 264-65 (holding that
recusal was not required where a judge’s public remarks while
appeal was pending largely repeated comments he had
28
The recusal statute requires “[a]ny justice, judge or magistrate
judge of the United States [to] disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.” 28 U.S.C.
§ 455(a).
70
previously made in court); Yonkers Bd. of Educ., 946 F.2d at
184-85 (concluding that public statements in which a judge
“only restated what he had been saying in open court” did not
give rise to “any appearance of partiality”).
In addition to giving factual descriptions, Judge Jones at
least arguably indicated a view on the legal merits of an
impending Atkins claim by Chester and on the pending Martinez
arguments of Ibarra and Trevino. But Judge Jones’ position on
those issues also had already been expressed in her published
judicial opinions. See Chester v. Thaler, 666 F.3d at 350
(“Nothing about this crime suggests Petitioner had difficulties
‘process[ing] information’ or ‘engag[ing] in logical reasoning.’”
(quoting Atkins, 536 U.S. 318)); Ibarra v. Thaler, 687 F.3d at
227 (“Ibarra is not entitled to the benefit of Martinez for his
ineffectiveness claims.”). And there is no reason to expect that
reiteration of those well-known views in a public forum would
either “denigrate public confidence in the judiciary’s integrity
and impartiality,” Canon 3A(6) cmt., or cause “a substantial and
widespread lowering of public confidence in the courts among
reasonable people,” Judicial-Conduct Rule 3(h)(2). Rather, as
the Supreme Court held in Liteky v. United States, and many
courts have since repeated, ordinarily, “opinions formed by [a]
judge on the basis of facts introduced or events occurring in the
course of current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion.” Liteky, 510
U.S. at 555; see, e.g., Ciavarella, 716 F.3d at 723; United States
v. Allen, 587 F.3d 246, 252 & n.12 (5th Cir. 2009); United States
v. Voccola, 99 F.3d 37, 42-43 (1st Cir. 1996); see also Comm.
on Codes of Conduct, Advisory Opinion No. 66 (2009).
Finally, as we have suggested above, it is possible to read
Judge Jones’ comment that, if in Trevino the Supreme Court
“extends Martinez, it may be on a path to guaranteeing court-
appointed counsel in habeas cases, which would be a dramatic
71
and costly departure from historical practice,” Jones
Recollections 16, as going beyond what she had previously said
in published opinions. See supra Part VI.B.3. This does not
necessarily exclude the comment from the holding of Liteky.
Moreover, the comment was directed at a case then pending
before the Supreme Court, rather than a lower court. We do not
believe it could reasonably have been thought that such a
comment would improperly influence the Supreme Court. And
once the Court rendered its decision and remanded the case to
the Fifth Circuit, Judge Jones’ own views about what the
Supreme Court should do in Trevino would have been (and
were) moot.
We therefore conclude that Judge Jones did not commit
misconduct in discussing the specific cases cited by the
complainants.
VII
For the foregoing reasons, the Special Committee
recommends that the Judicial Council dismiss the Complaint.
Respectfully submitted,
Merrick B. Garland
Thomas B. Griffith
Richard W. Roberts