New investigation of local federal judge ordered

U.S. District Judge Walter S. Smith, Jr. (File)
U.S. District Judge Walter S. Smith, Jr. (File)(KWTX)
Published: Jul. 11, 2016 at 1:38 PM CDT
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A federal judicial conduct committee on Friday ordered the 5th U.S. Circuit Court to re-investigate a case against Waco U.S. District Judge Walter S. Smith, Jr., who was reprimanded last year over a case of sexual misconduct involving a courthouse employee.

The Committee on Judicial Conduct and Disability of the Judicial Conference of the United States reviewed a petition filed by New York lawyer Ty Clevenger naming Smith, 75, and said in its order that the reprimand issued against Smith in December 2015 may not have gone far enough in the punishment meted out to Smith and ordered the 5th Circuit Court to review the evidence against Smith again.

Smith, who has been the federal district judge in Waco since 1984, through a court employee, refused to make any comment on the issue Monday.

As part of his petition, Clevenger provided testimony from a witness to the harassment that would force the committee to consider ordering the review and said that when he provided the same evidence to the 5th Circuit Court, that panel ignored the evidence.

The committee directed the 5th Circuit Court of Appeals Judicial Council to investigate further whether Smith engaged in a “pattern and practice” of making inappropriate sexual advances toward women who worked in the federal courts building.

The four page decision, obtained Monday by KWTX, says the 5th Circuit Court failed to adequately deal with the issue and directed the counsel to take another look.

Last December the 5th Circuit Court suspended Smith from taking any new cases onto his docket and ordered him to submit to sensitivity training.

Clevenger submitted that the issue Smith was reprimanded for was not a solitary incident and that other women in the courthouse had been the targets of sexual advances, as well.

In January Clevenger contacted the judicial conduct council saying he feels the punishment Smith was handed was “far too lenient” and that Smith should have been permanently suspended and eventually impeached.

Federal district judges may only be removed from their benches through an impeachment process in Congress, much like the process used to remove a president.

In the letter sent to the 5th Circuit Court, the judicial council made no findings and did not further address the issue.

Clevenger, interviewed by telephone Monday, said the action by the judicial council supports his contention that the 5th Circuit Court “downplayed” the scope and severity of Smith’s misconduct, he said.

Clevenger said the order raises the question of whether there was a pattern and practice of such conduct in the courthouse.

In the reprimand the 5th Circuit Court said Smith does not understand “the gravity of such inappropriate behavior and the serious effect that it has on the operations of the courts.”

With respect to the allegation that Smith allowed untrue facts to be entered in the case means the court “allowed false factual assertions to be made in response to the complaint, which, together with the lateness of his admissions, contributed greatly to the duration and cost of the investigation.”

The council’s order goes on to say that because Clevenger provided names of other employees who witnessed other instances of harassment of women in the courthouse, “it raises the question whether there was a pattern and practice of such behavior.”

“Because we believe that additional findings are essential to the consideration of the petition for review, we are unable to complete our review of the Circuit Judicial Council’s order,” the committee’s order says.

The committee remanded the case back to the council in New Orleans with the instruction to “undertake additional investigation and make additional findings where appropriate and reconsider the appropriate sanction if there are additional findings.”

The document also directs the council to provide “additional findings and recommendations” concerning the fact that Smith allowed false assertions of fact to be made in his response to the complaint and to determine “the manner in which Judge Smith’s conduct adversely impacted or interfered with the inquiry, if at all.”

Clevenger called on Central Texas U.S. Rep. Bill Flores (R-Bryan) to lead the effort to have Smith impeached.

“How much longer Congressman (Bill) Flores sit on his hands,” Clevenger said.

Flores already said after Smith was reprimanded that he does not believe the punishment fit the allegations.

Later, however, Flores said he would let the issue play itself out in the federal judiciary process.

Smith also has been reprimanded for failing to disclose that the attorney who represented him against Clevenger’s original allegations had other cases set in Smith’s court.