In a letter Wednesday telling the lawyer who filed the complaint against former Waco judge Walter S. Smith Jr. that the investigation was over, the federal Fifth Circuit appeals court's judicial council also said its inquiry showed that Smith had probably done the same thing to other women in his office. Still, since Smith retired from the bench earlier this month (it just so happens, right around the time the appeals court was wrapping its investigation), the Fifth Circuit concluded that federal judicial conduct rules bar them from continuing the inquiry.
The judicial council also declined to recommend Smith for impeachment, despite the fact that he made "misrepresentations" that dragged out the initial investigation into his behavior with women in his office, according to the court's letter. That letter, written by Fifth Circuit Chief Judge Carl Stewart, says that even if Smith were to be impeached and convicted, under federal rules that probably wouldn't stop the $200,000 per year taxpayer-funded retirement payout he's set to receive for the rest of his life.
According to Stewart's letter to Dallas attorney Ty Clevenger, who filed the initial 2014 complaint against the judge, “there is evidence that there were other incidents involving Judge Smith similar to the incident that was the focus of the complaint.” Which is troubling, considering what Smith's victim testified about that initial "incident."
In a deposition taken during the investigation, the woman says Smith attacked her in his chambers when she was a clerk in his office in the late 1990s. According to her deposition: “He basically came over to me and put his arms around me and kissed me, and I just froze. I couldn’t move. And he said, ‘Let me make love to you.’” After she told him that was a stupid idea, “he pulled me to him again, and he kissed me again and stuck his tongue down my throat, and he pressed himself against me. I could tell he had an erection, and he said, you know, ‘A couch right here.’” She testified that she could smell alcohol on his breath. While she ran through excuses, he continued to grope her. She later told her supervisor she was afraid to be alone with the judge. The next day, when she came into work, Smith had left flowers on her desk. She eventually quit her job because she was afraid to be around him.
What's even more troubling about the episode is how the woman's initial complaint was handled once it reached Harry Lee Hudspeth, who was then chief judge of the Western District of Texas, which is anchored in San Antonio (Hudspeth is now listed as a Senior U.S. District Judge in Austin). The woman claims that when Hudspeth called her to talk about her complaint, he was dismissive and didn’t ask a single question about the actual assault or Smith's behavior toward her in the workplace. “It was ugly,” she said of the call in a deposition. “It was disrespectful. It was demeaning.”
After its initial investigation into Smith, the Fifth Circuit imposed the super serious punishment of barring the judge from hearing any new cases for a year. It seems his retirement, which happened just as that suspension was set to end, not only killed the investigation into his actions with other women in his office but also ensured he'd face no further consequences.
Clevenger says he's "disgusted by the whole process" and the fact that the judge won't face any further repercussions. "He committed serious crimes and got off with a slap on the wrist," Clevenger told us. "There's not much about his punishment that would deter other judges from committing comparable crimes."
A federal appeals court has dropped its investigation into a federal district court judge from Texas accused of harassing a court clerk, calling her into his office, shoving his tongue down her throat and pressing his erection into her.