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In re Charges of Judicial Misconduct
Citations: 413 U.S. App. D.C. 1; 769 F.3d 762; 2012 U.S. App. LEXIS 27225Docket: Nos. DC-13-90021, 05-13-90099
Court: Court of Appeals for the D.C. Circuit; August 12, 2014; Federal Appellate Court
Thirteen individuals and public interest groups filed a Complaint of Judicial Misconduct against Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit, citing 28 U.S.C. § 351(a). The complainants requested that the Chief Justice transfer the case to another circuit's judicial council, per Rule 26 of the Judicial-Conduct Rules. Chief Judge Stewart of the Fifth Circuit formally requested this transfer on June 7, 2013, and Chief Justice Roberts complied by transferring the Complaint to the Judicial Council of the District of Columbia Circuit on June 12, 2013. On July 19, 2013, Chief Judge Garland appointed a Special Committee, which included himself, Circuit Judge Griffith, and Chief Judge Roberts, to investigate the allegations. The Complaint primarily focused on remarks made by Judge Jones during a February 20, 2013 lecture on the death penalty and claims of disrespect towards a fellow judge during a 2011 en banc argument. The Special Committee concluded that the Complaint should be dismissed based on their findings, which were documented in a Report submitted to the Judicial Council. The Judicial Council adopted the Special Committee's Report and ordered the dismissal of the Complaint. Additionally, the Report was attached as an appendix to the Order, with both the Order and Report released to the public. The initial Complaint was filed on June 4, 2013, and was supported by eight affidavits from attendees of Judge Jones’ lecture and legal opinions suggesting she violated judicial conduct canons. Chief Judge Stewart determined that a transfer of the Complaint against Judge Jones was necessary due to the prominent nature of the allegations, which involved the immediate past chief judge and misconduct towards a fellow circuit judge. On June 12, Chief Justice Roberts transferred the Complaint to the Judicial Council of the District of Columbia Circuit. Subsequently, additional allegations of misconduct against Judge Jones were submitted, but submitters were informed that these needed to be directed to the Fifth Circuit's Judicial Council, as only the two incidents from the original Complaint were authorized for review by the D.C. Circuit. On June 20, Chief Judge Garland notified Judge Jones of the transfer and invited her response, which she submitted on July 12, denying the allegations and including various supporting documents. On July 19, Garland appointed a Special Committee to evaluate the Complaint, which included himself and Judges Griffith and Roberts. The Committee was tasked with investigating without making factual determinations on disputed matters. On August 6, Special Counsel Jeffrey Beilin was appointed to investigate the factual allegations. Judge Jones submitted an additional letter to the Committee on September 9, containing excerpts from a report related to the case. The Committee collected further materials supporting Judge Jones, including testimonials from law school graduates and former law clerks. Special Counsel Beilin conducted interviews with 45 individuals, primarily attendees of Judge Jones' lecture, along with other relevant parties. He confirmed that no faculty members attended the lecture and, after thorough investigation, concluded that it had not been recorded. However, he gathered contemporaneous documentation, including photographs, handwritten notes from Judge Jones and attendees, and text messages quoting her remarks during the lecture. The Special Counsel gathered documents shortly after a lecture, including a summary of Judge Jones’ remarks and a text message from a student attendee to a legal blog, all of which were voluntarily provided. He reviewed affidavits, submissions to the Judicial Council and Committee, as well as dockets and opinions of cases discussed by Judge Jones during the lecture. Following his investigation, the Special Counsel submitted a report to the Special Committee, which held a hearing under Judicial-Conduct Rule 14, hearing testimonies from Judge Jones and Mr. Bookman. A supplemental report detailing the status of the cases mentioned in the lecture was also prepared. The Special Committee is now submitting its findings and recommendations to the Judicial Council, along with the Special Counsel's reports and the hearing transcript. Three sets of rules govern judicial conduct: the Judicial Conduct and Disability Act, the Judicial-Conduct Rules, and the Code of Conduct for United States Judges. The Judicial Conduct and Disability Act of 1980 establishes a complaint process for addressing allegations of judicial misconduct. It allows individuals to file written complaints with the circuit's court of appeals clerk. The Judicial-Conduct Rules set procedural standards for handling these complaints, defining "misconduct" as conduct prejudicial to court administration. The rules emphasize that this term lacks a precise definition and stipulate that the Rules are generally mandatory, except in exceptional circumstances. Additionally, the Code of Conduct for United States Judges provides guidance and standards for judges but clarifies that not every violation warrants disciplinary action. Moreover, while the Judicial-Conduct Rules reference the Code for context on prejudicial conduct, they note that the Code’s principles are often aspirational rather than disciplinary. Judicial-Conduct Rule 3 outlines the ethical standards judges must adhere to, encapsulated in five canons, four of which are referenced in the Complaint. - **Canon 1** emphasizes the necessity for judges to maintain the integrity and independence of the judiciary, with commentary stressing that following these canons bolsters public confidence in judicial impartiality. - **Canon 2** instructs judges to avoid impropriety and its appearance, mandating that their actions promote public confidence in their integrity. The commentary clarifies that an appearance of impropriety arises when reasonable observers would question a judge's honesty or impartiality. This applies to both professional and personal conduct. - **Canon 3** mandates judges to perform their duties fairly and impartially, highlighting the need for patience, dignity, respect, and courtesy in official interactions. It restricts public comments on pending legal matters, although exceptions exist for scholarly presentations aimed at legal education. - **Canon 4** allows judges to engage in extrajudicial activities, including discourse on legal and nonlegal subjects, provided such activities do not undermine the dignity of the office or interfere with official duties. In evaluating Judge Jones's potential misconduct under the Judicial Conduct and Disability Act, disciplinary action necessitates that her actions meet the definition of "misconduct" per the Judicial-Conduct Rules. The rules indicate that a judicial council can dismiss complaints if the underlying facts are not established, suggesting a standard of at least preponderance of the evidence. However, in similar attorney disciplinary contexts, clear and convincing evidence is typically required. This Circuit has not established a definitive burden of proof for judicial misconduct proceedings, but the outcome remains unaffected by the standard applied. The allegations against Judge Jones stem from an oral argument in the case United States v. Delgado, heard on September 20, 2011, where she served as Chief Judge. The oral argument transcript reveals a tense exchange between Chief Judge Jones and Judge Dennis regarding the questioning of a government attorney, highlighting Judge Dennis's frustration at being interrupted. Chief Judge Jones criticized Judge Dennis for monopolizing the questioning time, while Judge Dennis defended his right to inquire, insisting he had not been overbearing. Following the argument, Judge Jones apologized to Judge Dennis, who accepted the apology, indicating he had not taken offense. The Complaint against Judge Jones alleges she showed 'extreme disrespect' towards Judge Dennis, violating Canons 1, 2, and 3, particularly Canon 3's requirement for judges to be respectful in their official dealings. Judge Jones acknowledged her remarks were disrespectful but emphasized that she had already apologized. According to Judicial-Conduct Rules, a complaint may be dismissed if a judge takes voluntary corrective action, such as an apology. Historical precedents support that an apology is often deemed sufficient corrective action for intemperate comments. Given Judge Jones's prompt apology and Judge Dennis's acceptance, the Committee concluded that the complaint should be dismissed. Judge Jones delivered a lecture on February 20, 2013, at the University of Pennsylvania Law School, invited by the student-run Federalist Society. The event was promoted as an analysis of federal death penalty review from a federal judge's perspective. During the 45-minute lecture, which included a Q&A session, Judge Jones addressed three main questions: the constitutionality of the death penalty, its moral justification, and its effectiveness. She argued that the death penalty is constitutional, referencing its mention in the Constitution and dismissing the idea that evolving standards of decency could render it unconstitutional, citing existing Supreme Court precedents. On moral justification, she linked the death penalty to a long-standing Judeo-Christian tradition, specifically mentioning the Book of Deuteronomy, while acknowledging the Catholic Church's varying views on the issue. To illustrate her points, she recounted details from several capital cases she had presided over, emphasizing the severity of the crimes involved. Regarding the effectiveness of the death penalty, Judge Jones noted historical restrictions imposed by the Supreme Court in the 1970s and 1980s, which led to disorganized procedures. However, she pointed out that subsequent judicial limits and the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 had improved the situation in the Fifth Circuit, making the capital post-conviction process less chaotic. The descriptions of her remarks are generally uncontested and supported by various sources, including her own notes and accounts from attendees. Judge Jones referenced the 2002 Supreme Court case Atkins v. Virginia, which ruled that executing mentally retarded offenders violates the Eighth Amendment's prohibition on cruel and unusual punishment. The decision allowed states to define who qualifies as mentally retarded, leading to significant legal uncertainty. She critiqued the complex and costly federal death penalty procedures and questioned their efficiency, despite her belief in the constitutionality and moral justification of the death penalty. Jones dismissed some challenges to capital punishment as "red herrings," specifically those related to racial discrimination and the rights of foreign nationals under international agreements. During a Q&A session, questions arose about her views on minority involvement in crime, with a notable inquiry from Marc Bookman, who later supported a formal complaint against her. Disputes over the exact wording and tone of Jones' comments highlighted the differing recollections of attendees, as the lecture was not recorded. The Special Counsel's investigation indicated that attendees' memories varied significantly, complicating the resolution of factual disputes related to the allegations. Interviews indicated that the Complaint and related media coverage were widely discussed within the University of Pennsylvania Law School community, raising concerns that witnesses might confuse their memories of Judge Jones' remarks with media reports or comments from others. The Special Counsel collected various contemporaneous documents from the lecture, including photographs, Judge Jones' handwritten notes, and notes from attendees, including Assistant Federal Defenders. Post-lecture documents included a summary created by an Assistant Federal Defender and Judge Jones' recollections made months later. The Complaint included eight affidavits, predominantly from those who attended the lecture, with Mr. Bookman’s affidavit being central, closely resembling the Assistant Federal Defender's summary. It was revealed that Bookman modified this summary into his affidavit after being prompted by inquiries for witness affidavits. Five student affidavits referenced and incorporated Bookman’s affidavit but provided less detail. Bookman noted that he discussed the lecture with a friend at the University of Texas’ Capital Punishment Center, who requested the affidavit. Concurrently, a University of Pennsylvania law professor sought student witnesses and coordinated affidavit collection, with the assistance of an attorney who discussed the lecture with the students. All affidavits supported motions for Judge Jones' recusal in related cases. Additionally, Judge Jones submitted a declaration from another student, solicited by the Federalist Society chapter president after media reports emerged about the Complaint. This student had previously communicated his recollections of the lecture via text and email. The Committee utilizes information, including the Special Counsel's Report, to reach conclusions regarding complaints against Judge Jones. Due to the lack of recordings, factual determinations must be made based on a preponderance of the evidence. The Complaint categorizes Judge Jones' alleged misconduct into six areas: Comments on Race, Intellectually Disabled, Claims of Innocence, Foreign Nationals, Individual Cases, and Religion concerning the Death Penalty. It accuses the judge of improperly criticizing the DOJ and the Supreme Court, and of inappropriate tone, claiming violations of 28 U.S.C. § 351 and Code of Conduct Canons 1, 2, 3, and 4. The Complaint specifically alleges bias in Judge Jones’ remarks, particularly concerning race, asserting she suggested certain racial groups, such as African Americans and Hispanics, are predisposed to crime and involved in violent acts. It claims she dismissed systemic racism in the death penalty's administration as a 'red herring.' These comments allegedly violate several Canons aimed at maintaining public confidence and impartiality. In her defense, Judge Jones contends her statements were misinterpreted, asserting that her comments were consistent with the Supreme Court's position in McCleskey v. Kemp, and she denies implying any inherent criminality among racial groups. She acknowledges referencing statistical data about racial disproportionality in crime but maintains that crimes are the result of individual choices, not racial predispositions. Judge Jones acknowledged that African-Americans appear disproportionately represented on death row and suggested that some groups may commit more heinous crimes, but she clarified that her statements were based on statistical facts rather than implying inherent propensities. During a subsequent question-and-answer session, she explicitly stated that she did not mean to suggest certain races were "prone" to criminal behavior, emphasizing that her comments were about statistical occurrences rather than biological predispositions. Witnesses from the Special Counsel's investigation had mixed recollections of her initial statements, with some recalling her use of the term "prone" and others disputing it. However, all agreed that she clarified her position during the Q&A session. The Special Counsel noted that any implications suggesting that specific racial or ethnic groups are more likely to commit crimes would undermine a judge's impartiality and violate judicial conduct rules. Despite the concerns raised, the investigation found insufficient evidence to conclude that Judge Jones made the problematic comments initially, especially given her efforts to clarify her views afterward. The report highlights that corrective actions taken by a judge may mitigate complaints regarding their conduct. Judge Jones reportedly indicated that African Americans and Hispanics are statistically "disproportionately" involved in certain crimes and present in federal prisons, a statement that elicited offense among witnesses. She expressed discomfort regarding these remarks and clarified during a Q&A that she did not intend to imply these groups are "prone" to criminal behavior. Contextualizing her comments, it is argued that they do not demonstrate racial bias or a lack of impartiality but rather reflect ongoing discussions about justice system fairness. In a separate matter concerning the intellectually disabled, Judge Jones referenced the Supreme Court's decision in Atkins v. Virginia, which prohibits the execution of mentally retarded offenders. She expressed views that highlighted a perceived tension between the seriousness of certain crimes and the mental capacity of defendants claiming exemption from death sentences under Atkins. The Complaint alleges she made derogatory statements about the use of mental retardation as a defense, labeling such claims as "red herrings" and suggesting that some defendants abused the system. Furthermore, it claims her use of the term "mental retardation" is insensitive, as it is considered outdated. Judge Jones denies having said that exempting mentally retarded individuals from the death penalty is a "disservice," and witness recollections regarding her specific wording vary, with most witnesses unable to recall her exact phrasing. The absence of a recording prevents a determination by preponderance of evidence regarding whether Judge Jones expressed "disgust" at the use of mental retardation as a defense in capital cases or stated that such claims "abuse the system." No witnesses corroborate these claims, suggesting the complaint aimed to indicate a "dismissive" tone rather than specific words. Judge Jones acknowledged that mental retardation claims might be considered "red herrings" in her experience, implying they seldom succeed, but clarified this does not negate their validity as a defense, as recognized by the Supreme Court. If she had categorically dismissed all such claims or expressed disgust, it would raise concerns about her impartiality; however, no evidence supports such statements. Judge Jones noted that the nature of some defendants' crimes led her to doubt their intellectual disabilities, citing a specific case as an example. Her views echoed those from her judicial opinions, where she stated that mentally retarded individuals typically have diminished capacities. This reiteration of her prior judicial opinions does not constitute misconduct, in line with the legal principle that a judge's previously formed opinions do not indicate bias. Lastly, Judge Jones consistently used the term "mentally retarded" during her lecture, a term also employed by the Supreme Court, which does not question her impartiality. All Supreme Court opinions at the time of Judge Jones’ lecture, including discussions during the oral argument in Hall v. Florida, indicate a shift from using the term "mental retardation" to "intellectual disability," which became official in May 2014. The Complaint alleges that Judge Jones was dismissive of claims of innocence, suggesting she regarded them as a "red herring" and believed that claims of innocence were often based on "technicalities." Judge Jones reportedly remarked that just as many innocent individuals were killed in drone strikes as those executed for crimes. However, she does not recall labeling "actual innocence" as a "red herring," nor was it included in her pre-lecture notes. During her interactions with the Special Counsel, she emphasized that she had not witnessed a death row exoneration based on actual innocence, asserting that such exonerations typically followed successful legal challenges rather than disproving guilt. Many attendees interpreted her use of "technicalities" in this context. The Special Counsel found it implausible that she labeled actual innocence as a "technicality." While some affidavits claim she referred to defendants' Brady claims regarding suppressed evidence as "technicalities," the Complaint itself does not support this assertion. Judge Jones denied dismissing Brady claims in such a manner. Conflicting evidence precludes a finding of misconduct against Judge Jones regarding her comments on the death penalty and claims of actual innocence. The judge did not dismiss these claims but shared insights based on her judicial experience. The complaint alleges that Judge Jones criticized the Mexican justice system and international legal standards, specifically stating it was an “insult” for U.S. courts to reference foreign laws and that Mexican nationals would prefer U.S. death row to Mexican prisons. She expressed three main views: disapproval of using foreign law in constitutional interpretation, categorization of foreign nationals' consular rights claims as a "red herring," and belief that U.S. legal protections exceed those in other countries. These views do not constitute misconduct, as they reflect a legitimate judicial perspective. The debate over these issues is acknowledged within the Supreme Court, and Judge Jones' opinions align with broader judicial discourse. There is no prohibition against a judge favoring her own country's legal system, and witnesses corroborate her belief that a defendant like Ramiro Ibarra would prefer U.S. incarceration. Judge Jones is not found to have made disparaging remarks about Mexican nationals or Mexican-Americans, as no witnesses corroborated such claims. Comments that would have constituted misconduct were not evidenced, leaving no basis to question her impartiality toward foreign nationals in court. The Complaint also alleges that Judge Jones endorsed her religious views to justify the death penalty, referencing Biblical origins and an article discussing the Vatican's stance on capital punishment. While her exact wording is disputed, there is consensus that she communicated personal support for the death penalty, though she clarified that she would not impose such judgments in her role as a judge. She emphasized that her comments were intended to explore the moral justifications of the death penalty, which is a common topic in legal discussions. Other judges have engaged in similar dialogues, and such discussions are permissible under the Code of Conduct for judges. The key issue is whether Judge Jones' expressions could lead reasonable individuals to question her impartiality, particularly concerning her religious beliefs and legal obligations. Judge Jones asserted that she differentiated her personal views from her judicial responsibilities, explicitly stating her Christian beliefs while affirming her duty to apply the law. Affidavits from students support this assertion, noting that she acknowledged her personal support for the death penalty but emphasized her obligation to follow legislative law. As a result, her remarks do not constitute a violation of misconduct rules, paralleling a precedent where a judge's personal opinions did not warrant recusal due to clear separation between personal beliefs and judicial duties. Additionally, the Complaint alleges that Judge Jones criticized federal prosecutors handling death penalty cases, suggesting they treated the process as an "elaborate game" and wasted taxpayer resources. Judge Jones confirmed that she questioned the efficiency and cost-effectiveness of the Department of Justice's procedures, highlighting the low conviction rate and the infrequency of federal executions. Audience notes corroborate her claims about the inefficiencies in the federal death penalty process, noting her surprise at the practices of federal prosecutors. The commentary on Canon 4 underscores the role of judges in contributing to legal and justice system improvements. Judges are encouraged to engage in law-related activities and public discourse as long as it does not compromise their impartiality or dignity. The Judicial Council of the Ninth Circuit holds that judges, being knowledgeable citizens, can enhance public understanding through their speeches on legal matters. A judge's critiques, such as those concerning federal death penalty prosecutions, fall within acceptable boundaries as long as they do not detract from the judge's official role or impartiality. In a specific complaint against Judge Jones, allegations were made that she expressed contempt for the Supreme Court's rules and criticized its death penalty decisions related to juveniles and the mentally disabled. Affidavits referenced her descriptions of the Supreme Court’s actions in the 1970s and 1980s as a "judicial law-making binge" and a "zoo," indicating her disapproval of the Court's management of death penalty jurisprudence. Judge Jones acknowledged her criticisms but defended her position by stating that capital punishment is constitutionally sanctioned, based on her interpretation of the Constitution's original meaning. She admitted to using the term "judicial law-making binge" and remarked that if she described the judicial process as a "zoo," it was a characterization of the Court's earlier jurisprudence. Judge Jones addressed the complexities arising from rapid changes in legal doctrine, habeas law intricacies, and numerous last-minute petitions. While she may not specifically recall using the term "new spree" for recent cases like Atkins and Roper, she did mention "micromanaging" in reference to those cases and "backdooring" concerning the potential right to counsel in habeas law, as seen in Martinez and Trevino v. Thaler. She cited a quotation attributed to Justice White regarding the Supreme Court's handling of death penalty jurisprudence, likening it to the Court's approach to abortion, stating it had made it "safe, legal and rare." Despite her critical remarks about the Supreme Court, it is established that such criticism does not amount to judicial misconduct, as referenced in prior cases. The Code of Conduct encourages judges to engage in legal discourse, highlighting that part of their role is to contribute to the evolution of law. The tradition of lower court judges criticizing Supreme Court decisions, particularly on constitutional law, is well-established. While Judge Jones used pointed language, the critical inquiry is whether her comments undermined public confidence in judicial integrity. There is no evidence suggesting that her statements indicated an intention to disregard Supreme Court rulings, thereby maintaining adherence to the rule of law. Judge Jones asserted her commitment to applying the law objectively, regardless of her personal views, emphasizing her duty as a federal judge to follow Supreme Court rulings. The assessment of her conduct found no misconduct related to her critique of the Supreme Court’s death penalty jurisprudence, referencing prior cases that established a judge's personal opinions do not compromise impartiality if it is stated that they will not influence rulings. The Complaint alleged that Judge Jones delivered her remarks with a tone of “disgust, outrage, or contempt,” describing her demeanor as “dismissive, personal, emotional, disrespectful, hostile, and inflammatory.” Witnesses reported that Judge Jones appeared combative and tense during the Q&A session, with some claiming she lost her composure. However, opinions on her tone varied widely, with some witnesses finding it unprofessional while others described it as serious and formal. Due to the lack of a recording, the inquiry could not definitively assess her tone or demeanor, leading to the conclusion that there was insufficient evidence for a misconduct finding. Additionally, the Complaint raised concerns that Judge Jones discussed specific cases during her lecture, which allegedly violated Canon 3A(6) by commenting on matters pending in court. Four cases were highlighted, including one that was active in her court at the time of the lecture, raising questions about her adherence to judicial conduct standards. Elroy Chester was scheduled for execution during a lecture by Judge Jones, who authored opinions in the Ibarra, Chester, and Druery cases and served on the Swearingen panel. Judge Jones acknowledged discussing a case involving Carlos Trevino but denied engaging with the merits of any pending cases, indicating that her discussions focused solely on the factual background of crimes and the disposition of relevant issues, such as those raised in Atkins. She aimed to illustrate the heinous nature of these crimes. The Code of Judicial Conduct generally prohibits commentary on pending matters but allows exceptions for scholarly presentations intended for legal education, provided they do not undermine public confidence in judicial integrity. Potential misconduct under the Judicial-Conduct Rules includes any conduct outside official duties that might harm public perceptions of the judiciary. The assessment of Judge Jones’ comments revolves around whether any related cases were pending, if her remarks addressed the merits, the applicability of the scholarly presentation exception, and whether her comments harmed public confidence. While some matters involving the individuals were pending, and some comments may have touched on merits, it was concluded that the scholarly presentations exception applied and that her comments did not undermine public confidence in the judiciary, thus not violating Canon 3A, Canon 2A, or constituting misconduct. Additionally, the prohibition against commenting on pending matters applies to cases in any court, and “pending” is defined as a matter that has commenced, while “impending” refers to cases likely to be filed. An “impending matter” is defined in the A.B.A. Model Code of Judicial Conduct as one that is imminent or expected to occur soon, with the prohibition against public comments about such matters continuing until the completion of the appellate process. In examining whether Judge Jones' comments during a February 2013 lecture concerned any pending or impending cases, the status of two individuals—Druery and Swearingen—was analyzed. Druery was on death row in Texas during Judge Jones' lecture. Previously, Judge Jones had denied Druery's request for a certificate of appealability in 2011, and the Supreme Court denied certiorari in 2012. Although no matters were pending in the Fifth Circuit at that time, the denial of Druery's stay request by the district court in January 2013 made an appeal to the Circuit impending. The court had not addressed Druery's July 2012 claims regarding hypothyroidism and evidentiary errors, and Druery continued to file motions and letters, indicating ongoing matters in the district court. Additionally, Druery had pending issues in Texas state courts related to his competency to be executed, which led to hearings and a stay of execution. Swearingen, also on death row in Texas, had no pending or impending matters in the Fifth Circuit as of February 2013. A panel that included Judge Jones had previously affirmed the dismissal of Swearingen’s successive habeas corpus petition in April 2011, which was based on claims of newly discovered evidence and ineffective assistance of counsel. On May 9, 2011, the Fifth Circuit denied Swearingen’s habeas petition claiming actual innocence. His subsequent petition for a writ of certiorari was rejected by the Supreme Court on February 27, 2012. The Texas courts dismissed his final state habeas petitions in December 2012. Swearingen’s certiorari request in March 2013 was also denied in June 2013. In a related case, Elroy Chester's habeas petition was denied by the Fifth Circuit in December 2011, with the Supreme Court denying certiorari in October 2012. Chester's execution was initially set for April 24, 2013, but was postponed to June 12, 2013. Following allegations in a complaint, Chester filed a motion to stay his execution and recuse Judge Jones, which was denied. A new panel also denied his motions the following day, and the Supreme Court later denied certiorari, resulting in Chester’s execution. The text notes the common practice of defendants filing last-minute habeas petitions, suggesting the impeding nature of Chester's case as per Canon 3A(6). The Committee on Codes of Conduct advises judges to consider potential implications of their writings on cases they've presided over to avoid disqualification risks. Judge Jones acknowledged a pending petition for rehearing in Ramiro Ibarra's case, which she had overlooked due to the timing of previous rulings related to a Supreme Court decision on procedural default and habeas claims. Ibarra, after being convicted in Texas state courts, filed a habeas petition in federal district court, which was denied. In June 2012, Judge Jones ruled against Ibarra's motion to vacate based on the Supreme Court's decision in Martinez, which had established that defendants in states requiring ineffective assistance claims to be raised in collateral review could excuse procedural default if they had ineffective counsel in their initial state habeas proceedings. Judge Jones determined that Texas law does not mandate such claims be addressed first in habeas proceedings, concluding Ibarra was not entitled to the benefits of Martinez. In August 2012, Judge Jones also denied Ibarra's application for a certificate of appealability (COA), stating his claims did not meet the standard required, which included assertions of mental retardation under Atkins, failure of local law enforcement to inform him of his rights under the Vienna Convention, and ineffective trial counsel regarding mitigation evidence. On September 14, 2012, Ibarra filed a petition for rehearing en banc, arguing that Martinez should apply in Texas. The Fifth Circuit did not act on this petition due to the pending Supreme Court case Trevino v. Thaler, which raised a similar issue regarding the application of Martinez in Texas. Ultimately, the Fifth Circuit ruled on Ibarra's petition on July 17, 2013, while the Supreme Court had granted certiorari in Trevino to consider whether Martinez extended to states where direct review made raising ineffective assistance claims impractical. At the time of Judge Jones' lecture, the case Trevino was pending before the Supreme Court, with oral arguments occurring on February 25, 2013. This status also rendered the case "pending or impending" in the Fifth Circuit, aligning with Canon 3A(6), which prohibits public comments on pending matters until the appellate process concludes. On May 28, 2013, the Supreme Court vacated Trevino and remanded it to the Fifth Circuit, emphasizing that Texas's procedural framework often prevents defendants from adequately raising claims of ineffective assistance of counsel on direct appeal, thus applying the ruling in Martinez. On June 5, 2013, Ibarra filed a motion to recuse Judge Jones, citing allegations from a complaint filed that day; this motion was denied on June 10, 2013. Subsequently, a three-judge panel, including Judge Jones, vacated previous decisions inconsistent with Trevino and remanded Ibarra for further proceedings. In January 2014, the Fifth Circuit remanded Trevino to the district court for reconsideration of his ineffective assistance claim. The summary noted that several cases involving individuals discussed by Judge Jones were pending or impending in various courts at the time of her lecture, including those of Druery, Swearingen, Chester, Ibarra, and Trevino. The inquiry then shifted to whether Judge Jones’ comments addressed the merits of any pending matters, as Canon 3A(6) requires that for a violation to occur, comments must pertain to the merits of a pending case. Judge Jones contended she did not discuss the merits of any pending cases, stating she merely recounted facts of previously decided cases and their implications for public perception of the death penalty. In United States v. Microsoft Corp., the circuit court determined that a judge's public comments violated Canon 3A(6) due to their disclosure of views on critical factual and legal issues in the case, including witness credibility and the defendant's culpability. The judge's remarks, made prior to the final judgment, were considered excessive. In contrast, the current case primarily involves a judge recounting facts and outcomes from prior cases in which she participated. While these descriptions could be viewed as addressing the "merits," courts typically do not find impropriety in judges reiterating previously stated court opinions. Witnesses at a related lecture noted that although Judge Jones discussed various cases, they struggled to recall specific details. The complaint lacks detailed accounts of Judge Jones's comments on the Druery and Swearingen cases, with only one affidavit mentioning Druery, which diverges from the actual case facts. There is no evidence that Judge Jones addressed ongoing matters related to either defendant, which included pending legal issues in federal and state courts concerning their health, competency, and claims of innocence. Notably, allegations that Judge Jones discussed these pending matters are absent. Regarding Chester's case, an affidavit indicates that Judge Jones mentioned Chester's claim of mental retardation. Chester engaged in a burglary spree despite being in shackles, which prompted Judge Jones to assert that his attempts to obtain a gun indicated he was not mentally retarded. This assertion aligns with her remarks to a law school audience and her published opinion in Chester's case, where she discussed the nature of his crimes as evidence against his mental retardation claim. She stated that her comments were merely a recitation of the case facts and previous dispositions, not an evaluation of the merits of an ongoing matter, specifically a motion for a stay of execution related to a Fifth Circuit Atkins determination. In discussing Ibarra, Judge Jones similarly claimed to have only recounted the facts of his case, including allegations about his mental retardation and planning to commit a crime. She mentioned Ibarra's assertion regarding law enforcement's failure to inform him of his rights without commenting on the merits of his situation, which involved a pending petition for reconsideration of a prior decision on his ineffective assistance claim. The distinction between merely reporting facts and commenting on case merits raises questions regarding the appropriateness of her statements. Nonetheless, if her comments were viewed as discussing merits, they could be defended under the "scholarly presentations" exception to Canon 3A(6). Procedural default was established in the case of Ibarra, and the precedent set in Martinez did not allow Ibarra to avoid this default, as it was not applicable to Texas cases. Judge Jones acknowledged discussing a pending Supreme Court case, Trevino v. Thaler, which challenged the Fifth Circuit's interpretation that Martinez did not apply to Texas's procedures. While she did not delve into the specifics of either case, she noted that the Supreme Court had granted certiorari to review the relevant Fifth Circuit ruling. Judge Jones refrained from expressing a definitive opinion on the merits of either case but suggested that if the Court were to extend the Martinez ruling, it could lead to a significant and costly change in the provision of court-appointed counsel in habeas cases. This remark could be interpreted as a commentary on the case's merits, though the discussion is protected under the "scholarly presentations" exception to the prohibition on public comments related to pending matters. The Code of Conduct allows for such comments if aimed at legal education, distinguishing between educational seminars at accredited institutions and private training programs. Judge Jones's lecture at the University of Pennsylvania is deemed to fall within this exception. Defining "scholarly" is inherently challenging, as acknowledged by Mr. Bookman, who noted that a broad definition could include law school contexts referencing significant cases and issues. However, he hesitated to label a particular presentation as scholarly due to its perceived one-sidedness and lack of neutrality. Specifically, he criticized Judge Jones for not adequately considering “evolving standards of decency” in her evaluation of the death penalty's constitutionality. The excerpt emphasizes that there is considerable debate among judges and scholars about the appropriateness of incorporating evolving standards in Eighth Amendment determinations. Judicial councils cannot mandate neutrality in lectures and law review articles to qualify as "scholarly" under Canon 3(A)6’s exception. The term "scholarly" is defined as characteristic of scholarship, which involves knowledge gained from study or research. Judge Jones' lecture, derived from her research on death penalty cases, demonstrates this. While there is an acknowledgment that scholarly work should ideally present multiple viewpoints, enforcing a neutrality requirement could unjustly limit the scope of discourse prevalent in law schools and publications. The text cites the Republican Party of Minnesota v. White case, which supports judges expressing views on legal issues outside formal adjudication. The drafters of Canon 3A(6) likely intended for its exception to be broad enough to align with Canon 4, which encourages judges to engage actively in refining the law. Consequently, Judge Jones’ discussion, even if addressing merits of ongoing cases, qualifies as a scholarly presentation and does not breach Canon 3A(6). However, despite the classification of her lecture as scholarly, her comments on individual cases could still violate Canon 2A, which mandates judges to act in ways that uphold public confidence in the judiciary's integrity and impartiality. Cognizable misconduct is defined in the Judicial-Conduct Rules as conduct outside of official duties that may adversely affect public confidence in the judiciary. Specifically, Canon 3A(6) advises judges to be cautious with public comments regarding cases from their own court to avoid undermining the perceived integrity and impartiality of the judiciary, as outlined in Canon 2A. While judges are permitted to engage in law-related discussions under Canon 4, they must avoid activities that could reflect poorly on their impartiality. In the context of Judge Jones, she authored or participated in all relevant cases she discussed. Witnesses did not recall specific details of her comments, which primarily echoed her published judicial opinions. Existing case law, particularly concerning recusal, suggests that repeating previously stated judicial opinions does not typically indicate partiality. Judge Jones also expressed views on upcoming legal claims that were consistent with her earlier rulings. The reiteration of established opinions in public forums is unlikely to diminish public confidence in judicial integrity or lead to widespread distrust, as supported by the Supreme Court's ruling in Liteky v. United States, which asserts that opinions formed by a judge based on prior proceedings do not inherently suggest bias or partiality. Judge Jones’ comment regarding the potential implications of the Supreme Court's decision in Trevino, particularly the possibility of extending Martinez to guarantee court-appointed counsel in habeas cases, is evaluated in the context of her past statements and the ongoing case. The comment, while possibly more expansive than her previous opinions, does not constitute misconduct as it was directed at a pending Supreme Court case and unlikely to improperly influence the Court. Following the Supreme Court's decision, Judge Jones' views became moot. The Special Committee recommends dismissing the complaint against her. The document addresses factors that determine whether disciplinary actions are warranted, emphasizing the need for clear and convincing evidence in misconduct allegations against attorneys. Various jurisdictions have specific rules regarding proof standards for attorney misconduct, with some adopting unique burdens that differ from the traditional standards. Washington enforces a "convincing preponderance" standard for lawyer conduct, while Iowa employs a "convincing preponderance" standard as established in Iowa Sup. Ct. Att’y Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169 (Iowa 2013). South Dakota requires a "clear and undoubted preponderance" of evidence, as seen in In re Discipline of Stanton, 446 N.W.2d 33 (S.D. 1989). When district courts exercise inherent penal powers—such as dismissals, default judgments, contempt orders, attorney fees, and fines—they must meet the "clear and convincing evidence" threshold for misconduct, as stated in Shepherd v. American Broadcasting Companies, 62 F.3d 1469 (D.C. Cir. 1995). The Fifth Circuit lacks an official transcript for a specific argument, which is instead based on an oral recording. Judge Jones' remarks during this argument were noted but cut off mid-apology. The Clerk of Court confirmed no additional recordings exist. Affidavits from attorneys suggested that Judge Jones’ comments, if accurately captured, breached federal or Texas judicial conduct canons. Discussions surrounding racial disparities in the criminal justice system highlight that young Black and Latino men are disproportionately represented as both victims and perpetrators. While crime rates among African Americans are acknowledged, studies indicate socioeconomic factors largely account for these disparities. The criminal justice system reflects discriminatory decision-making processes, with high arrest rates for Black individuals compared to other races. Canon 3A(3) emphasizes the importance of respectful conduct, including the avoidance of any behavior that could be perceived as prejudicial or biased. Canon 2 mandates judges to act in ways that uphold public confidence in the judiciary's integrity and impartiality, applicable to all judicial activities. Comments demonstrating bias against specific litigants or legal theories can warrant recusal under 28 U.S.C. 455. Relevant case law supports this, indicating that the imposition of the death penalty on mentally retarded defendants violates the Eighth Amendment, as established in various Supreme Court cases. The opinions of the world community, while non-controlling, can lend significant weight to judicial conclusions. However, dissenting justices have cautioned against integrating foreign and international law into Eighth Amendment jurisprudence, emphasizing that such influences can distort American legal standards. Judicial remarks indicative of extreme bias, as illustrated by historical examples, underscore the necessity of impartiality in legal proceedings. Additionally, the Vienna Convention on Consular Relations does not override domestic law, and violations of its provisions do not typically warrant the overturning of convictions without demonstrable impact on the trial. An article published on February 8, 2013, in Crisis magazine, which advocates for the faithful Catholic laity, discusses the intersection of religious beliefs and capital punishment. It cites various legal and scholarly sources, including works by Kadish and Schulhofer, Coyne and Entzeroth, and Douglas, emphasizing that public debates about the death penalty often evoke moral considerations rooted in religious traditions. Notably, Carolyn Dineen King referenced a call from Catholic bishops to end the death penalty as a moral imperative, while clarifying that her religious views do not influence her judicial decisions. The document also cites a Florida Supreme Court case involving Judge William C. Gridley, where the judge's anti-capital punishment views were found not to violate ethical standards, as he affirmed his obligation to uphold the law. Additionally, it highlights that in most death-eligible cases, U.S. attorneys typically do not recommend pursuing the death penalty, which leads to significant costs for defense and judiciary prior to the Attorney General's decision. Other cited sources critique various legal precedents and constitutional issues, including campaign finance and the adversarial system in justice. A claim of unconstitutional search and seizure can be raised in a 28 U.S.C. § 2255 proceeding, as supported by various legal authorities. The document references discussions by Judge Jones concerning specific cases, such as Betty Lou Beets, Walter Bell, and Larry Hatten, but does not assert that these discussions violated Canon 3A(6) regarding comments on pending matters. Notably, Beets was executed 13 years prior, and Bell’s death sentence was vacated with no ongoing legal issues. Judge Jones's involvement in Hatten's habeas petition was concluded in 2009, with the Supreme Court denying certiorari in 2010. The document also notes a discussion of Paul Hardy, who had an active case but the specific issue of his indictment's sufficiency was not mentioned by Judge Jones during her lecture. Hardy's death sentence was vacated in 1999, and a subsequent life sentence was affirmed in 2012. After Judge Jones's lecture in 2013, Hardy's petition for certiorari was denied later that year. Previous habeas challenges by another individual, Swearingen, have been considered by Judge Jones and other panels. The context of capital penalty proceedings often involves last-minute habeas petitions before executions, indicating the potential for reconsideration of convictions or sentences. Sean Gallagher's article analyzes the case Chester v. Thaler, asserting that Chester's actions in executing a sophisticated break-in demonstrate premeditation and logical reasoning, indicating he did not possess diminished mental capacity. This contrasts with the principles articulated in Roper v. Simmons, which emphasizes the necessity of considering evolving standards of decency when evaluating the proportionality of punishments under the Eighth Amendment. The excerpt references various judicial opinions, including dissenting views from Justice Scalia on the relevance of modern standards and Justice Black's concurring stance against the interpretation of the Constitution to reflect contemporary values. It also highlights scholarly perspectives on the death penalty's constitutionality, advocating for consideration of "enlightened standards" and historical context. Additionally, it cites the recusal statute mandating disqualification of federal judges when their impartiality may reasonably be questioned.