Federal Law

A Review of the High Profile Case of Waco Attorney Greg White, (former) U.S. District Judge Walter S. Smith Jr. and Texas Legal Ethics Transparency Advocate and Attorney-at-Law Ty Clevenger

The council said Smith’s actions did not warrant a recommendation of impeachment. Clevenger appealed that decision to the Administrative Office of United States Courts in Washington, D.C., which has since ordered the 5th Circuit to reopen the investigation of Smith because the first probe failed to address certain issues raised in Clevenger’s complaints, including allegations Smith acted inappropriately with other women in his chambers.

The State Bar of Texas has accused a Waco attorney of violating its rules by failing to properly inform opposing counsel in a pending lawsuit that he represented the judge presiding over the case.

In a letter to attorney Ty Clevenger dated April 20, Rebecca Stevens, assistant disciplinary counsel for the State Bar of Texas, said that the bar’s disciplinary proceeding against Waco attorney Greg White will be heard by an evidentiary panel of the state bar district grievance committee.

The letter says the matter will be pursued by the Commission for Lawyer Discipline through the Chief Disciplinary Counsel’s Office.

White, who also joined the Baylor Law School’s faculty in February as a legal writing lecturer after serving as an adjunct since 1995, did not return phone messages left for him Monday and Tuesday at his law office and at the law school.

Clevenger, a former Dallas attorney who now lives in New York, filed the State Bar grievance against White and also filed a sexual misconduct complaint against U.S. District Judge Walter S. Smith Jr., of Waco, in 2014 that led to Smith’s reprimand by the 5th U.S. Circuit Court of Appeals.

White represented Smith against Clevenger’s complaint to the 5th Circuit, which led to Clevenger’s bar grievance against White.

Clevenger alleged White failed to disclose his attorney-client relationship with the judge to lawyers on the other side of the case from White in Smith’s court.

Clevenger also has since filed a new complaint that claims Smith may have received free legal services from White while White had cases pending in Smith’s court.

Smith and White both have declined comment on the allegations in the past.

White responded to the State Bar charges leveled by Clevenger, and Clevenger made White’s responses public.

White’s answer acknowledged that an attorney from Florida who was unhappy with Smith’s rulings in the case questioned White about his relationship with the judge. White told him he was representing the judge, and the attorney immediately filed a motion to recuse Smith from the case, which Smith granted.

“Frankly, I had assumed three things,” White wrote in his answer. “First, I thought my role was so limited that my representation made no difference to anyone. Second, I though that Tammy (Hooks, Smith’s career law clerk) was calling people in my cases (to inform opposing parties of White and Smith’s attorney-client relationship). Third, I knew that I was bound by confidentiality — both by rule, and by my client’s instruction — not to volunteer that Judge Smith was the subject of a judicial conduct complaint or that I was his lawyer.”

In its reprimand of Smith, the Judicial Council of the 5th U.S. Circuit Court of Appeals found that the judge did not follow appropriate procedures regarding his recusal from the case involving White.

The judicial council reprimanded Smith in December, finding he made “inappropriate and unwanted physical and nonphysical advances” toward a female courthouse staff member in his court chambers in 1998.

Clevenger included with his complaint a sworn deposition from the woman, who no longer lives in Waco, in which she detailed her unnerving experience with the judge and how it forced her to leave a good job at the federal courthouse.

Smith, 75, has been a federal judge since 1984 and is a former chief judge of the Western District of Texas.

 

Smith’s suspension

The council also suspended Smith for one year from hearing any new criminal or civil cases filed after Dec. 3, ruling that his conduct “was in contravention of existing standards of behavior for federal judges.”

Smith’s suspension from hearing new cases has forced a judge from Austin to fill in for him by hearing new cases in Waco. The suspension has also required magistrates, including one who came out of retirement, to perform additional duties and has created the need to hire two new law clerks at a total of $104,000 a year, officials have said.

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.

While the council said Smith’s actions do not warrant a recommendation of impeachment, Clevenger has appealed that decision to the Administrative Office of United States Courts in Washington, D.C., and is seeking impeachment.

In response to Clevenger’s accusation that White represented Smith for free, Smith recently has shown lawyers a copy of a canceled check that he says is proof he paid White $10,000 to represent him on the 5th Circuit complaints.

“The judge showed me the check because he knows that one of the accusations is that Greg White was doing something for him and wasn’t getting paid for it to curry favor of the court, and he wanted to show me that not only it wasn’t true, he had a copy of the canceled check,” Waco attorney Russ Hunt said. “So I don’t have any doubt that Walter is telling the truth when he says, ‘Hey, I paid him $10,000,’ and I do not doubt Greg’s word. Greg is a man of his word.”

In a letter dated Jan. 27 from White to his attorney and submitted as an exhibit in White’s response to the State Bar, White said an attorney who formerly served as Smith’s law clerk called him and said the judge wanted to speak to him about Clevenger’s federal complaint.

White wrote that Smith was concerned about the accusations being made public and asked White to file a motion to dismiss the complaint.

“I must say that I was not sure whether I was writing as Judge Smith’s lawyer, or whether I was ghost-writing for Judge Smith,” White wrote in his memo. “I am sure I had an attorney-client relationship, but unsure how formal my representation would be.”

White prepared a draft and said the judge asked him to sign the motion as his attorney.

“One statement in the motion to dismiss bears mention,” White’s memo says. “After talking to Judge Smith, I was under the impression that he believed that the young lady involved might have acted in a way to suggest her willingness to participate in a personal relationship — that she was the aggressor.

“I wrote that in the motion to dismiss — characterizing it as Judge Smith’s ‘memory.’ His memory came from a lawyer-friend of Judge Smith’s while Judge Smith’s divorce was pending. During the divorce, there were apparently ‘threats’ to make this woman’s complaint a public matter,” White’s memo says.

The lawyer, whom White does not identify, suggested that they could respond to the threatened publicity by suggesting that the woman approached the judge romantically in an attempt to gain favorable treatment for her husband, who was part of a group considering litigation in Smith’s court.

“That suggestion to Judge Smith (from his lawyer-friend) stuck with him, and he suggested it to me,” White wrote.

“After the motion to dismiss was filed, a more careful examination of the docket” revealed the suggestion that the woman approached the judge in such a manner to help her husband was not true, since the lawsuit involving her husband was not filed until long after the incident in Smith’s chambers.

During the council probe, the investigator told White that the investigator knew that version was not true.

“I acknowledged to the investigator that we had misstated that, and wished to correct it,” White’s memo says.

Clevenger has become infamous as more than just a thorn in judges’ sides. Over the years, he has filed numerous complaints against judges and attorneys. Most recently, he filed a complaint against Chief Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, President Barack Obama’s choice to succeed Antonin Scalia on the Supreme Court.

Clevenger sanctioned

Clevenger’s blog, LawFlog, and his website, DirtyRottenJudges.com (no longer active per LIT review) bash the judiciary and highlight misconduct by judges.

Clevenger currently is under fire from a Washington, D.C., judge, who sanctioned Clevenger $120,000 in December, sparking other pending disciplinary actions.

About seven years ago, Smith sanctioned Clevenger and fined him $25,000 for filing what the Waco federal judge deemed a frivolous lawsuit in his court.

Clevenger has been in touch with U.S Rep. Bill Flores’ office since the Republican from Bryan told the Tribune-Herald in January that he thinks the judicial council did not go far enough in sanctioning Smith.

Flores said then that he would explore procedures to impeach the judge by talking to U.S. Rep. Bob Goodlatte, the House Judiciary Committee chairman, about those procedures.

But Flores said recently that he is aware that Clevenger is appealing the council’s decision and he thinks that process should be allowed to play out. He also said he has had difficulty getting in touch with Goodlatte.

“Congressman Flores talked a good game before the Republican primary, but after the election, he lost all his interest in impeaching Judge Smith,” Clevenger said. “It looks like it was the kind of say-anything-to-get-elected stunt that makes people cynical about politicians.”

Waco Attorney Greg Smith Complaint by Ty Clevenger Dismissed by the State Bar of Texas Disciplinary Commission

A Waco attorney will not be sanctioned by the State Bar of Texas on a complaint that he failed to properly inform opposing counsel in a pending lawsuit that he represented the federal judge hearing the case.

In a letter dated Sept. 16, 2016, Rebecca Stevens, assistant disciplinary counsel for the State Bar of Texas, informs New York attorney Ty Clevenger that his complaint against Waco attorney Greg White has been dismissed.

“The office of chief disciplinary counsel has fully investigated your complaint and determined that professional misconduct cannot be established,” the letter states.

The letter goes on to say that the disciplinary proceeding against White, which the letter says is “strictly confidential,” has been dismissed by the Commission for Lawyer Discipline.

White, who also is a legal writing lecturer at Baylor Law School, did not return phone messages Tuesday.

Clevenger, who faces potential disciplinary action of his own next month in Washington, D.C., filed the State Bar grievance against White and also filed sexual misconduct and conflict-of-interest complaints against former U.S. District Judge Walter S. Smith Jr., of Waco, in 2014 that led to Smith’s reprimand by the 5th U.S. Circuit Court of Appeals.

White represented Smith against Clevenger’s complaint to the 5th Circuit. That, in turn, led to Clevenger’s bar grievance against White. Clevenger alleged White failed to disclose his attorney-client relationship with the judge to lawyers on the other side of a case from White in Smith’s court.

Clevenger has since filed a supplemental complaint that claims Smith may have received free legal services from White while White had cases pending in Smith’s court.

Smith, 75, announced his retirement last week, effective Sept. 14, after 32 years on the federal court bench.

White responded to the State Bar allegations made by Clevenger, and Clevenger made White’s responses public.

‘Not surprised’

Clevenger said Tuesday he was “disgusted but not surprised” that the state bar dismissed his complaint.

“I already knew that the State Bar’s disciplinary system was politically tainted and downright corrupt, and this is just another example. If you’re a lawyer in Texas with the right political connections, you can get away with almost anything,” Clevenger said.

“Judge Smith and Greg White both admitted that they had an attorney-client relationship and failed to disclose it as the law required, and the Fifth Circuit Judicial Council had already reprimanded Judge Smith for concealing that relationship. So if it’s grounds for disciplining the judge, why not the attorney? It takes two to tango.”

White’s response to the allegations acknowledged that an attorney from Florida who was unhappy with Smith’s rulings in the case questioned White about his relationship with the judge. White told him he was representing the judge, and the attorney immediately filed a motion to recuse Smith from the case, which Smith granted.

“Frankly, I had assumed three things,” White wrote in his answer. “First, I thought my role was so limited that my representation made no difference to anyone. Second, I though that Tammy (Hooks, Smith’s career law clerk) was calling people in my cases (to inform opposing parties of White and Smith’s attorney-client relationship). Third, I knew that I was bound by confidentiality — both by rule, and by my client’s instruction — not to volunteer that Judge Smith was the subject of a judicial conduct complaint or that I was his lawyer.”

In its reprimand of Smith, the Judicial Council of the 5th U.S. Circuit Court of Appeals found that the judge did not follow appropriate procedures regarding his recusal from the case involving White.

The judicial council reprimanded Smith in December, finding he made “inappropriate and unwanted physical and nonphysical advances” toward a female courthouse staff member in his court chambers in 1998.

Clevenger included with his complaint a sworn deposition from the woman, who no longer lives in Waco, in which she detailed her unnerving experience with the judge and how it forced her to leave her job at the federal courthouse.

The council also suspended Smith for one year from hearing any new criminal or civil cases filed after Dec. 3, ruling that his conduct “was in contravention of existing standards of behavior for federal judges.”

“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 said Smith’s actions did not warrant a recommendation of impeachment. Clevenger appealed that decision to the Administrative Office of United States Courts in Washington, D.C., which has since ordered the 5th Circuit to reopen the investigation of Smith because the first probe failed to address certain issues raised in Clevenger’s complaints, including allegations Smith acted inappropriately with other women in his chambers.

The results of the renewed investigation and the 5th Circuit response are pending.

After Clevenger alleged that White represented Smith for free, Smith showed lawyers a copy of a canceled check that he said is proof he paid White $10,000 to represent him on the 5th Circuit complaints.

‘Showed me the check’

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 judge showed me the check because he knows that one of the accusations is that Greg White was doing something for him and wasn’t getting paid for it to curry favor of the court, and he wanted to show me that not only it wasn’t true, he had a copy of the canceled check,” Waco attorney Russ Hunt has said. “So I don’t have any doubt that Walter is telling the truth when he says, ‘Hey, I paid him $10,000,’ and I do not doubt Greg’s word. Greg is a man of his word.”

In a letter dated Jan. 27 from White to his attorney and submitted as an exhibit in White’s response to the State Bar, White said an attorney who formerly served as Smith’s law clerk called him and said the judge wanted to speak to him about Clevenger’s federal complaint.

White wrote that Smith was concerned about the accusations being made public and asked White to file a motion to dismiss the complaint.

“I must say that I was not sure whether I was writing as Judge Smith’s lawyer, or whether I was ghost-writing for Judge Smith,” White wrote in his memo. “I am sure I had an attorney-client relationship but unsure how formal my representation would be.”

White prepared a draft and said the judge asked him to sign the motion as his attorney.

“One statement in the motion to dismiss bears mention,” White’s memo says. “After talking to Judge Smith, I was under the impression that he believed that the young lady involved might have acted in a way to suggest her willingness to participate in a personal relationship — that she was the aggressor.

“I wrote that in the motion to dismiss — characterizing it as Judge Smith’s ‘memory.’ His memory came from a lawyer-friend of Judge Smith’s while Judge Smith’s divorce was pending. During the divorce, there were apparently ‘threats’ to make this woman’s complaint a public matter,” White’s memo says.

The lawyer, whom White does not identify, suggested that they could respond to the threatened publicity by suggesting that the woman approached the judge romantically in an attempt to gain favorable treatment for her husband, who was part of a group considering litigation in Smith’s court.

“That suggestion to Judge Smith (from his lawyer-friend) stuck with him, and he suggested it to me,” White wrote.

“After the motion to dismiss was filed, a more careful examination of the docket” revealed the suggestion that the woman approached the judge in such a manner to help her husband was not true, since the lawsuit involving her husband was not filed until long after the incident in Smith’s chambers.

During the council probe, the investigator told White that the investigator knew that version was not true.

“I acknowledged to the investigator that we had misstated that and wished to correct it,” White’s memo says.

Clevenger currently is under fire from a Washington, D.C., judge, who sanctioned Clevenger $120,000 in December, sparking other pending disciplinary actions that have been postponed until next month.

Smith sanctioned Clevenger and fined him $25,000 for filing what Smith called a frivolous lawsuit in his court seven years ago.

2019 Review by LIT

As far as we can see, Greg White shut down his website at texapplaw.com (which translates to Texas Appellate Lawyer dot com in long form translation). He’s now “of Counsel” over at Attorneys Gray Reed.

Greg White also has an Arbitration.com profile wherein it is lists the category of “Legal Malpractice” as the “Areas of Arbitration”.

Full disclosure: I am trying to set up Texas bar prosecutors for a big black eye.

The Office of Chief Disciplinary Counsel has an unwritten rule that it will not prosecute politically-influential attorneys, e.g., it will not prosecute Jay Goss because he formerly served on a state bar grievance committee.

Below I have reprinted an August 2, 2018 bar grievance that I filed against Goss and some other lawyers who have previously held office in the state bar, and the violations are egregious.

When all charges are dismissed (as they probably will be), and the dismissals are rubber-stamped by the Texas Board of Disciplinary Appeals (as they always are), I plan to ask the Texas Supreme Court to intervene and burn down the whorehouse.

Federal death row inmate wants to be re-sentenced by a judge who is not drunk

If you thought the drunken debauchery of former U.S. District Judge Walter S. Smith, Jr. of Waco, Texas was old news, think again.  A motion filed this morning by a federal death-row inmate asks the court to set aside his sentence on the grounds that the alcoholic judge was too impaired to pass judgment.

In the motion filed by attorneys Robert C. Owen of Northwestern Law School and Asst. Public Defender John R. Carpenter of Tacoma Washington on behalf of Brandon Bernard, they cite records from a judicial misconduct complaint that I filed against Smith in 2014, including the deposition testimony of a former deputy clerk who says she was sexually assaulted by Smith in the federal courthouse in 1998 while he was drunk (I have uploaded the motion’s evidentiary exhibits below).  Bernard was sentenced to death for his role in the 1999 murders of Todd and Stacie Bagley, a married couple who served as youth ministers for a church in Iowa.

In the interest of full disclosure, I am a pro bono co-counsel for one of Bernard’s co-defendants in the murder cases. Although I normally do not practice criminal law, and I certainly do not dispute the horror of the Bagley murders, I happen to think that defendants have a right to be sentenced by a judge who is not drunk. Is that really such a radical idea?

One witness told me she saw Smith drinking alcohol during a lunch break while he was presiding over the Branch Davidian trials, which would have been around the same time that Bernard was sentenced (and around the same time that Smith grabbed and groped the female clerk in Waco). Smith handed out some notoriously harsh sentences to the Branch Davidians, and I believe it’s fair to ask whether he was drunk when he sentenced them. Frankly, I hope other defendants start challenging their sentences, because it may force the rest of the judiciary to confront its complicity in Smith’s misconduct.

Other judges knew about Smith’s chicanery, but they did little or nothing to stop it. Smith’s victim testified, for example, that she informed her supervisors about the sexual assault, and they informed the chief judge of the Western District of Texas at that time, Harry Hudspeth (who has always reminded me of Emperor Palpatine).

According to the deposition transcript, Hudspeth dismissively asked the victim what she wanted him to do about it. Ultimately, he did nothing. (I filed a misconduct complaint against Hudspeth, and he quietly retired before the Fifth Circuit Judicial Council released its investigative report). A courthouse source also told me the former Chief Judge of the Fifth Circuit, Edith Jones, traveled to Waco in 2008 to interview courthouse personnel about Smith’s drunkenness, and she gave him the option of entering rehab or facing suspension from the bench. After a few weeks in rehab, Smith returned to the bench to resume his reign of terror.

After the Fifth Circuit confirmed my allegations regarding the 1998 incident, the appellate judges suspended Smith for one year and ordered him to participate in counseling. I argued the sentence was a slap on the wrist, particularly since Smith pulled some dirty stunts during the investigation. The Fifth Circuit did not investigate incidents involving other alleged victims, even though I gave its investigators the names and telephone numbers of witnesses and alleged victims.

The Judicial Conference of the United States ruled in my favor and ordered the Fifth Circuit to investigate the other alleged incidents, but Smith retired before the investigative report was released.  And I doubt that his case was an outlier.  Just remember how hard the Fifth Circuit tried to cover up the drunkenness and sexual misconduct of former Judge Samuel Kent of Galveston.

Back in Waco, Judge Lee Yeakel must now decide whether Brandon Bernard gets a new sentence, and frankly I hope he permits discovery into the extent of Smith’s drunkenness and dereliction. It’s a relevant question, and it may gave us some idea of how many other defendants were affected (and perhaps how many other judges knew about it).

SEXUAL MISCONDUCT AND THE FEDERAL JUDICIARY

The #MeToo movement has hammered sexual predators in Hollywood, big journalism, and Congress, but it still needs to hammer the judiciary (just read my July 11, 2016 blog post, Sexual misconduct in the federal judiciary: where are the Democrats and feminists when I need them?). Fortunately, a reporter from a major online publication called me yesterday because she is working on a story about sexual misconduct in the federal judiciary.  I can’t mention her name or publication yet, but kudos to her. It’s a scandal that needs to be exposed.

FISH OR CUT BAIT

Senator Charles Grassley periodically introduces legislation to replace the current judicial oversight system (which allows judges to whitewash investigate one another’s misconduct) with an independent inspector general for the judiciary. Unfortunately, he has never scheduled a hearing on that legislation in the many years since he first introduced it, even though he is the chairman of the Senate Judiciary Committee.

What gives, Mr. Chairman? If it’s an idea worthy of legislation, then quit issuing press releases and start scheduling hearings.

ODDS AND ENDS

Here are the five exhibits attached to the motion filed on behalf of Brandon Bernard: Exhibit 1, Exhibit 2, Exhibit 3, Exhibit 4, and Exhibit 5.

A Nationwide Investigation into Judges Behavin’ Badly Ends Up With It’s Spotlights Firmly on Texas and the Federalist Fifth Circuit

A system that relies for investigation solely upon judges themselves risks a kind of undue ‘guild favoritism’ through inappropriate sympathy with the judge’s point of view or de-emphasis of the misconduct problem

The Number of Complaints Against Texas Judges Nearly Doubles in 5 Years. In 2019, Over 91 Percent of Those Complaints Were Dismissed. Someone’s Lyin’

Just under 2,000 complaints against Texas Judges and nearly all are dismissed. That’s not a good statistic.

At Least Attorney-at-Law Ty Clevenger “Woke” The Office of the Attorney General in Texas. The OAG “Pleads the Fifth” with Citizens

“The more this drags out, the more this looks like political retaliation because of my role in getting Ken Paxton indicted,” Ty Clevenger said. “I do intend to ask everyone involved to be compelled to show up at a hearing, and if Ken Paxton is involved, I’m going to ask the court to order him to be there.”

A Review of the High Profile Case of Waco Attorney Greg White, (former) U.S. District Judge Walter S. Smith Jr. and Texas Legal Ethics Transparency Advocate and Attorney-at-Law Ty Clevenger
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