A New York attorney who filed a sexual misconduct complaint against U.S. District Judge Walter S. Smith Jr. is appealing the judge’s reprimand, saying Smith’s punishment is “far too lenient” and he deserves to be impeached.
Ty Clevenger, formerly of Dallas, filed his appeal Monday with the Judicial Conference Committee on Judicial Conduct and Disability of the Administrative Office of United States Courts in Washington, D.C.
He is appealing a December decision by the Judicial Council of the 5th U.S. District Court of Appeals that formally reprimanded Smith after finding he made ”inappropriate and unwanted physical and nonphysical advances” toward a court employee in his court chambers in downtown Waco in 1998.
The court also stripped Smith from hearing any new criminal or civil cases filed after Dec. 3 for one year.
“I am appealing the decision because I think no one should be above the law, even if you are a federal judge,” Clevenger said Monday. “He deserves to be impeached.”
Smith, 75, has been a federal judge since 1984. He has denied comment throughout the 14-month process that included the complaint being filed, the 5th Circuit investigation and the court’s decision last month. The Tribune-Herald was unable to reach the judge Monday.
In his two-page letter of appeal, Clevenger said Smith’s conduct, as determined by the court’s investigation, could have been classified as a felony.
“I’m sure most felons wish they could receive such lenient treatment,” Clevenger wrote. “It seems the Fifth Circuit has created a new category of crime — the de minimis felony — for those cases where the perpetrator is a federal judge.”
While the Judicial Council of the New Orleans-based federal appellate court found that Smith’s conduct “was in contravention of existing standards of behavior for federal judges,” it concluded that his actions do no warrant a recommendation of impeachment.
The order of the Judicial Council also said Smith “does not understand the gravity of such inappropriate behavior and the serious effect that it has on the operations of the courts.”
“The Judicial Council also finds that Judge Smith 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 order, signed by 5th Circuit Chief Judge Carl E. Stewart, said.
The council also directed Smith to complete at his expense a sensitivity training course “about appropriate professional interaction.” The council appointed U.S. District Judge Ed Kinkeade, of Dallas, to serve as liaison between Smith and the Judicial Council and to make recommendations as Kinkeade deems appropriate.
Clevenger’s appeal asks how many felonies a judge needs to commit before the Judicial Council is willing to recommend impeachment.
“If a courthouse security officer had forcibly groped (the clerk), he would have been fired summarily and probably arrested,” the letter said. “He certainly would not have gotten away with a reprimand, sensitivity training and a reduced workload at full pay. . . . Does anyone seriously think that sensitivity training will be able to fix that kind of problem in an unrepentant 75-year-old man?”
Chief U.S. District Judge Fred Biery, of San Antonio, issued an order last month that directs all new cases filed in Waco’s federal court as of Dec. 3 to be assigned to a visiting judge docket.
Biery’s order transfers many of Smith’s normal duties to U.S. Magistrate Jeffrey C. Manske, including pretrial proceedings and requests for injunctive relief. Visiting judges will be brought in to handle matters over which Manske has no jurisdiction.
Clevenger supplemented his complaint against Smith in October to allege that Smith and Waco attorney Greg White violated conflict-of-interest standards by failing to disclose that White represents Smith in the judicial sexual misconduct investigation to attorneys opposing White in a civil case presided over by Smith.
The investigation council also found that Smith did not follow appropriate procedures regarding his subsequent recusal from the case involving White.
Clevenger’s initial complaint against Smith also included allegations that Senior U.S. District Judge Harry Lee Hudspeth, of Austin, who was chief judge of the Western District of Texas at the time, was told about the allegations against Smith and “failed to take appropriate action.”
Clevenger said the 5th Circuit notified him recently that the query involving Hudspeth remains open.
The former clerk wrote a letter to Smith in 1998, telling the judge that his “proposition to me completely caught me off-guard.”
“It frightened me and has caused me much grief and emotional anguish,” she wrote. “It was very inappropriate, and I did nothing to provoke it.”
According to the woman’s testimony in a sworn deposition, on the day she said she was assaulted, she saw Smith at the third-floor water fountain in the Waco federal courthouse and he invited her to visit him in his chambers. She said it was 8:30 a.m. and he had a “pretty strong smell” of liquor on his breath.
The woman said she was puzzled by his request because they rarely spoke and rarely saw each other at work. She said she went back to her desk and her phone rang. She said it was Smith asking where she was because he had told her to come see him.
When she went to the judge’s office, Smith closed the door behind her, put his arms around her and kissed her, she testified.
“I just froze. I couldn’t move. And he said, ‘Let me make love to you.’ And I, and I, I just freaked out,” she said in the deposition.
She said Smith tried to touch her inappropriately, but she pulled away and told him she had to get back to work.
The woman testified that after the incident, Smith sent her flowers at work and continued to make advances.
She told her supervisor, who reported the alleged incident to Hudspeth, who at that time was presiding judge over the federal district that includes Waco.
She testified that Hudspeth called her at home but seemed dismissive about her charges.
“He asked me, ‘What do you want me to do about it?’ ” she testified.