In re Misconduct, s. DC–13–90021

Decision Date12 August 2014
Docket NumberNos. DC–13–90021,05–13–90099.,s. DC–13–90021
PartiesIn re CHARGES OF JUDICIAL MISCONDUCT.
CourtU.S. Court of Appeals — District of Columbia Circuit

769 F.3d 762

In re CHARGES OF JUDICIAL MISCONDUCT.

Nos. DC–13–90021, 05–13–90099.

United States Court of Appeals, District of Columbia Circuit.

Aug. 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.

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

In re: Complaint of Judicial Misconduct

Judicial Complaint

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

[769 F.3d 763]

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 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 1 1(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.

[769 F.3d 764]

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. 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 nonstudent attendees. Those included the law school's Associate Director for Clerkships; three assistant federal defenders; and 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

[769 F.3d 765]

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 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...

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