1

COMMITTEE ON JUDICIAL CONDUCT AND DISABILITY

OF THE JUDICIAL CONFERENCE OF THE UNITED STATES

____________

C.C.D. No. 14-01

____________

IN RE: COMPLAINT OF JUDICIAL MISCONDUCT

____________

PROCEEDING IN REVIEW OF THE ORDER AND MEMORANDUM

OF THE JUDICIAL COUNCIL OF THE D.C. CIRCUIT

J.C. Nos. DC-13-90021, 05-13-90099 (5th Cir.)

____________

MEMORANDUM OF DECISION

____________

(Filed February 19, 2015) 

Present: Judges Anthony J. Scirica, Chair, Sarah Evans Barker, Joel F. Dubina, Joel M. 

Flaum, Thomas F. Hogan.1

MEMORANDUM OF DECISION

This matter is before the Judicial Conduct and Disability Committee on a Petition for 

Review filed by attorneys Charles Herring, Jr. and Maurie Levin, as well as eleven other 

individuals and public interest groups (collectively, “Petitioners”).

2 Petitioners seek review of an 

August 12, 2014 Order of the Judicial Council of the District of Columbia Circuit, attached 

herewith, adopting the Special Committee’s Report and dismissing Petitioners’ June 4, 2013

Complaint against Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit under the 

Judicial Conduct and Disability Act of 1980 (“Act”), 28 U.S.C. §§ 351-64, and the Rules for 

 1 This panel was comprised of five members of the seven-member Judicial Conduct and 

Disability Committee, as required by Rule 21(c) of the Rules for Judicial-Conduct and 

Judicial-Disability Proceedings. Two members were recused.

2 Petitioners include the League of United Latin American Citizens (LULAC); the NAACP 

(Austin Chapter); the National Bar Association (Dallas Affiliate – J.L. Turner Legal 

Association); the Texas Civil Rights Project; La Union del Pueblo Entero (LUPE); legal ethics 

experts, and law professors specializing in judicial ethics.
2

Judicial-Conduct and Judicial-Disability Proceedings (“Rules”), 249 F.R.D. 662 (U.S. Jud. Conf. 

2008).

The Complaint alleges misconduct arising from alleged statements made by Judge Jones 

during a public lecture on the death penalty at the University of Pennsylvania Law School on 

February 20, 2013. Petitioners contend these statements exhibited bias toward certain classes of 

judicial claimants and claims. After an extensive investigation into the “precise wording and 

tone” of Judge Jones’s lecture, the Special Committee recommended, based on a preponderance 

of the evidence standard, that the D.C. Circuit Judicial Council dismiss the Complaint. The 

Circuit Judicial Council adopted the report of the Special Committee in full and dismissed the 

Complaint. This Petition for Review followed. 

The Judicial Conduct and Disability Committee reviews this Petition for Review under 

28 U.S.C. § 357 and Rules 21(a) and 21(b)(1)(A). For the reasons we explain, we deny the 

Petition for Review and affirm the Circuit Judicial Council’s Order.

BACKGROUND

A. Facts

On February 20, 2013, Judge Jones delivered a public lecture entitled “Federal Death 

Penalty Review with Judge Edith Jones (5th Cir.)” at the University of Pennsylvania Law 

School. Judge Jones spoke for approximately 45 minutes and then answered questions. There 

was no recording made of Judge Jones’s lecture, nor of the question-and-answer portion of the 

lecture. See Special Comm. Rep. 19 (“Special Counsel searched extensively for a recording of 

the lecture” and “concluded that ‘there is no indication that the talk was recorded.’” (quoting 

Special Counsel Rep. 5)).
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Petitioners contend Judge Jones made certain statements during her lecture that call into 

question her impartiality and violate the Code of Conduct for United States Judges and the Rules. 

In particular, they describe her alleged statements as follows:

• Certain “racial groups like African Americans and Hispanics are predisposed to 

crime,” are “‘prone’ to commit acts of violence,” and get involved in more violent 

and “heinous” crimes than people of other ethnicities;

• Mexican Nationals would prefer to be on death row in the United States rather than 

serving prison terms in Mexico; 

• Defendants’ claims of racism, innocence, arbitrariness, and violations of international 

law and treaties are really nothing more than “red herrings” used by opponents of 

capital punishment;

• Claims of “mental retardation” by capital defendants are also red herrings, and the 

fact such persons were convicted of a capital crime is in itself sufficient to prove they 

are not in fact “mentally retarded”; and 

• The imposition of a death sentence provides a positive service to capital-case 

defendants because the defendants are likely to make peace with God only in the 

moment before their imminent execution.

Pet. for Rev. 1. They also take issue with various comments Judge Jones allegedly made that 

purportedly related to the merits of pending cases. In support, Petitioners submitted eight 

affidavits, including six affidavits from individuals who attended Judge Jones’s lecture (an

affidavit from Marc Bookman, Director of the Atlantic Center for Capital Representation, and 

five affidavits from University of Pennsylvania law students) and two affidavits from attorneys 

who opined that Judge Jones had violated federal and Texas canons of judicial conduct based on 

the affidavits of those who attended the lecture.

B. Procedural History

Petitioners filed their Complaint with the Judicial Council of the Fifth Circuit on June 4, 

2013. Three days later, following Petitioners’ request to transfer the proceeding, Chief Judge 

Stewart of the U.S. Court of Appeals for the Fifth Circuit sought transfer under Rule 26 to 
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another Circuit’s judicial council. On June 12, 2013, Chief Justice Roberts granted that request 

and transferred the case to the Judicial Council of the District of Columbia Circuit.

Under 28 U.S.C. § 353(a) and Rules 11(f) and 12, Chief Judge Garland of the U.S. Court 

of Appeals for the District of Columbia Circuit appointed a Special Committee on July 19, 2013, 

to consider the allegations in the Complaint. The Special Committee appointed Jeffrey Bellin, 

Associate Professor of Law at William and Mary Law School, as Special Counsel to investigate 

the allegations and submit a report to the Circuit Judicial Council. In conducting his 

investigation, Special Counsel Bellin searched for a recording of the lecture and determined that 

none existed. He interviewed 45 individuals, including most of the attendees at the lecture. 

Special Counsel Bellin also reviewed all of the affidavits and submissions received by the Circuit 

Judicial Council and the Special Committee, including (1) contemporaneous documentation and 

documentation created soon after the lecture; (2) materials provided by Judge Jones; and (3) 

materials from third parties supporting Judge Jones. Following his investigation, Special Counsel 

Bellin prepared a Report, which he submitted to the Special Committee. 

The Special Committee then scheduled a hearing under Rule 14, where it took the sworn 

testimony of Judge Jones and Mr. Bookman. After the hearing, Special Counsel Bellin prepared 

a Supplemental Report providing additional details regarding the status of specific cases 

discussed in Judge Jones’s lecture. The Special Committee issued its Report on July 7, 2014, 

concluding in part that it did not find by a preponderance of the evidence that Judge Jones made 

certain of the alleged statements, and that other statements that Judge Jones did make did not 

indicate bias or partiality and therefore did not constitute misconduct. The Circuit Judicial 

Council issued an Order on August 12, 2014 that adopted the Special Committee’s Report in its 

entirety and dismissed the Complaint against Judge Jones. Petitioners filed their Petition for 
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Review with the Judicial Conduct and Disability Committee on October 14, 2014, requesting 

reversal.

DISCUSSION

We review circuit judicial council orders for errors of law, clear errors of fact, or abuse of 

discretion. See, e.g., In re Complaint of Judicial Misconduct, 747 F.3d 869, 871 (U.S. Jud. Conf. 

2014) (finding that circuit judicial council did not abuse its discretion); In re Complaint of 

Judicial Misconduct, 664 F.3d 332, 334-35 (U.S. Jud. Conf. 2011) (deferring to findings of 

circuit judicial council and overturning them only if clearly erroneous). Our review necessarily 

depends on the record before us and gives deference to the Circuit Judicial Council’s 

consideration of the Special Committee’s review of the evidence. 

Petitioners contend the evidence clearly weighed in their favor, relying on the materials 

submitted in support of the Complaint—namely, six affidavits from individuals who attended 

Judge Jones’s lecture (one attorney and five law students). They argue the Circuit Judicial 

Council and the Special Committee “ignored” these affidavits and relied “almost exclusively” on 

Judge Jones’s statements and recollections. Pet. for Rev. 7.

From our review of the record, it is clear that the Circuit Judicial Council and the Special 

Committee relied on the entire record rather than a narrow comparison of Petitioners’ six 

affidavits and Judge Jones’s own recollections. The Special Committee’s exhaustive review

included the following: (1) contemporaneous documentation and documentation created soon 

after the lecture, including the handwritten notes of an Assistant Federal Defender who attended 

the lecture, as well as that Assistant Federal Defender’s subsequent summary made upon 

returning to her office; the electronic notes of another Assistant Federal Defender; a student text 

message exchange quoting Judge Jones sent during the lecture; a text message to a legal blog and 
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email to a student attendee sent by another student who attended the lecture after the Complaint 

was filed; and three photographs of the event; (2) materials provided by Judge Jones, including 

the handwritten notes Judge Jones brought to the lecture; Judge Jones’s ex post recollections of

the lecture; a letter from Judge Jones denying the alleged misconduct; another letter from Judge 

Jones containing an excerpt from a report from the Defender Services Committee of the Judicial 

Conference; and various news articles, blog posts, and legal documents; and (3) materials from 

third parties supporting Judge Jones, including a declaration from a recent law school graduate 

who attended the lecture; a character reference by a past president of the National Association of 

Criminal Defense Lawyers and the Texas Criminal Defense Lawyers Association; a letter from 

62 of Judge Jones’s former law clerks; and a separate letter from another former law clerk of 

Judge Jones. See Special Comm. Rep. 3-5, 20-22; see also id. 22 (“The Committee relies on all 

of this information, together with the Special Counsel’s Report, in reaching the conclusions 

below.”).

In conducting his investigation, Special Counsel Bellin not only reviewed these materials, 

but also reviewed the dockets and published opinions of all of the cases that Judge Jones 

discussed during her lecture. Id. 5-6. Furthermore, Special Counsel Bellin interviewed a total of 

45 individuals, including most of the attendees at the lecture and all of the nonstudent attendees, 

specifically Mr. Bookman, three Assistant Federal Defenders, and the law school’s Associate 

Director for Clerkships. Id. 4-5. After completing his investigation, Special Counsel Bellin

concluded that “many of the attendees had differing recollections—or no recollection at all—of 

comments referenced in the Complaint.” Id. 19. Special Counsel Bellin prepared a Report that he 

submitted to the Special Committee, which included these conclusions. The Special Committee 
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then held an evidentiary hearing, where it took the sworn testimony of Judge Jones and Mr. 

Bookman, the author of the “primary affidavit” 3 in support of the Complaint.

4

After a searching investigation, the Circuit Judicial Council adopted the Special 

Committee’s findings and recommendations. Because the opinion presents a comprehensive 

analysis of the specific evidence relating to each allegation, we decline to repeat that process 

here except as relevant to address Petitioners’ arguments that the Circuit Judicial Council erred 

in weighing the evidence and committed legal error in its analysis of Judge Jones’s alleged 

statements regarding (1) race; (2) intellectual disability; (3) actual innocence; (4) foreign 

nationals and international law; and (5) pending cases. With regard to each set of statements, we 

do not believe the Circuit Judicial Council or the Special Committee “ignored evidence in 

complainants’ favor” or that the Council or the Committee’s weighing of the evidence was 

deficient. Pet. for Rev. 8. Rather, the Circuit Judicial Council and the Special Committee 

determined the entire record was insufficient to establish by a preponderance of the evidence 

standard that events had occurred that could support a finding of misconduct—an essential 

failure rather than an election of proof—a process and conclusion well within the Council and 

Committee’s authority and charge.

 3 Although six affidavits were submitted in support of the Complaint by individuals who 

attended Judge Jones’s lecture, the Circuit Judicial Council and the Special Committee 

concluded Mr. Bookman’s affidavit was the “primary affidavit.” Special Comm. Rep. 20. They

also found Mr. Bookman’s affidavit was based upon and “almost identical to” an Assistant 

Federal Defender’s summary of the lecture. Id. 21 (“[I]t appears that Bookman took the 

[Assistant Federal Defender’s summary], made slight changes and adopted the resulting 

document as his affidavit.” (quoting Special Counsel Rep. 10)). 

4 After the hearing, Special Counsel Bellin prepared a Supplemental Report further describing 

the status of the specific cases discussed in Judge Jones’s lecture.
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A.

Petitioners contend the Circuit Judicial Council and the Special Committee “ignored” or 

“rejected” evidence in Petitioners’ favor by “fail[ing] entirely to mention” two of the student 

affidavits stating that Judge Jones made statements alleged in the Complaint regarding race and 

propensity. See Pet. for Rev. 9 (citing Ex. C, ¶ 13; Ex. F, ¶ 11). The Special Committee noted at 

the outset that “[b]ecause the bulk of the allegations concern the precise wording and tone that 

Judge Jones employed, the Special Counsel searched extensively for a recording of the lecture,” 

but that there was “no indication that the talk was recorded.” Special Comm. Rep. 19. The 

Special Committee emphasized that it “must resolve factual determinations based on the 

requirement that misconduct be established by (at least) a preponderance of the evidence.” Id.

22. We see no error with the way the Special Committee undertook its investigation, nor with the 

Circuit Judicial Council’s findings that Petitioners’ claims were not supported by a

preponderance of the evidence. See R. 13 cmt. (“[T]he committee has an investigative role of the 

kind that is characteristically left to . . . discovery by civil litigants. . . . [I]t [also] has a 

formalized fact-finding and recommendation-of-disposition role that is characteristically left to 

juries, judges, or arbitrators.” (citations omitted)). 

The Circuit Judicial Council and the Special Committee further noted that the witnesses 

Special Counsel Bellin interviewed (including, but not limited to, Mr. Bookman and the students 

who submitted affidavits in support of the Complaint) “generally did not recall the exact 

language Judge Jones used” and that “[s]ome witnesses said she did use the phrase ‘prone to 

commit,’” while “others thought that she did not use the phrase, and they would have 

remembered if she had.” Special Comm. Rep. 25 (citing Special Counsel Rep. 17-19). They 

further noted that Mr. Bookman, the Assistant Federal Defender upon whose summary he relied, 
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and at least one student affidavit submitted in support of the Complaint indicated that Judge 

Jones clarified during the question-and-answer period of her lecture that she did not mean that 

certain races are “prone” to violent behavior. Id. 25-26 (citing Bookman Aff. ¶ 28; Assistant 

Federal Defender Summary 3; Pet. for Rev. Ex. C, ¶ 13). The Circuit Judicial Council and the 

Special Committee found that “in light of . . . the witnesses’ recollections, we are unable to find, 

by a preponderance of evidence, that Judge Jones made those comments in her initial remarks.”

Id. 26. We do not believe this conclusion or the process leading to it was error. 

Similarly, we do not believe the Circuit Judicial Council or the Special Committee clearly 

erred in their assessment of the evidence when they concluded that Judge Jones used the term 

“red herring” to “signify her view that a challenge to the death penalty on the ground that it is 

administered in a racially discriminatory manner is nonviable,” and that her use of the term 

therefore did not “indicate[] improper bias or misconduct.” Id. 28. The Circuit Judicial Council 

and the Special Committee credited Judge Jones’s statements that she used the term within the 

context of a discussion on the Supreme Court’s decision in McCleskey v. Kemp, 481 U.S. 279

(1987), and that weighing of the evidence is precisely within their purview.5

Nor did the Circuit Judicial Council or Special Committee err in concluding that Judge 

Jones’s statements during the question-and-answer portion of the lecture constituted a form of 

corrective action. Corrective action is “voluntary . . . action that acknowledges and remedies the 

problems raised by the complaint.” R. 11(d)(2); see also Judicial Conduct & Disability Act Study 

 5 The Circuit Judicial Council and the Special Committee determined that Judge Jones used the 

term “red herring” throughout her lecture to signify an argument that was “nonviable” or 

unlikely to succeed. See, e.g., Special Comm. Rep. 28, 30, 36. We do not believe this conclusion 

was error. It is worth noting that a judge might not avoid a finding of misconduct by construing 

her conduct in a particular way. A judge’s stated intent in making certain comments may 

impermissibly stray from how the public would reasonably perceive such comments that 

crediting the judge’s statements regarding intent would be unreasonable. But that is not the case 

before us, as the Circuit Judicial Council and the Special Committee explained.
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Committee, Implementation of the Judicial Conduct and Disability Act of 1980, 239 F.R.D. 116, 

244 (2006) (“Action taken is appropriate when it serves to remedy the problem raised by the 

complaint. . . . [T]he emphasis is on correction of the judicial conduct that was the subject of the 

complaint.” (citation and internal quotation marks omitted)). Judge Jones’s statements during the 

question-and-answer portion of the lecture addressed an issue raised in the Complaint—namely, 

clarifying that she did not mean to indicate that certain racial groups are prone or have a 

propensity to commit serious crimes. Her clarification is akin to other situations involving 

corrective action and it was not error for the Circuit Judicial Council and the Special Committee

to treat it as such, particularly given their finding that the use of the word “prone” may not have 

occurred in the first instance. See, e.g., Special Comm. Rep. 26 (“[W]e are unable to find, by a 

preponderance of the evidence, that Judge Jones made those comments in her initial remarks.”).

B.

Petitioners similarly contend the Circuit Judicial Council and the Special Committee

“credited Judge Jones’ version” and “rejected” or “ignored” the student affidavits submitted in 

support of the Complaint when considering Judge Jones’s alleged statements that it “is a 

‘disservice’ to the ‘mentally retarded’ to exempt them from capital sentencing” and allegations 

that Judge Jones demonstrated “disgust” at the use of mental disability as a defense in capital 

cases. Pet. for Rev. 12-14 (citing Ex. A, ¶ 18; Ex. E, ¶ 8). We do not agree.

The Circuit Judicial Council and the Special Committee noted that most of the witnesses 

interviewed “[did] not remember either way” whether she made these statements. Special Comm. 

Rep. 29. They also concluded no affiant or witness reported that Judge Jones used the word 

“disgust.” See id. 29-30. Rather, they found that use of the term “disgust [in the Complaint] 

merely intended to convey that she used a ‘dismissive’ tone rather than to report particular 
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words.” Id. 30 (citation omitted). We find no reason to disregard or discount the Circuit Judicial 

Council and the Special Committee’s conclusion that they could not determine Judge Jones’s

tone by a preponderance of the evidence, particularly in light of Special Counsel Bellin’s 

conclusion that “many of the attendees had differing recollections—or no recollection at all—of 

comments referenced in the Complaint.” Id. 19.

C.

Petitioners similarly argue that the Circuit Judicial Council and the Special Committee 

erred in weighing the evidence when considering Judge Jones’s alleged statements regarding

claims of innocence. Pet. for Rev. 14-15 (citing Ex. A, ¶ 29; Ex. B, ¶¶ 13, 29, 30; Ex. C, ¶ 15). 

According to Petitioners, “[t]he evidence in the record makes plain Judge Jones’ view that claims 

of actual innocence [are] ‘red herrings’ (distractions), and that cases of actual innocence [are] in 

fact reversed on ‘technicalities.’” Id. 15. 

Petitioners’ assertion is belied by the record, which demonstrates that the Circuit Judicial 

Council and the Special Committee considered all of the evidence. They found that neither Judge 

Jones nor many of the witnesses recalled if she labeled actual innocence as one of the “red 

herrings” she discussed throughout her lecture. Special Comm. Rep. 33. Further, they found that 

many attendees recalled her using the term “technicality” to refer to exonerations she had seen 

personally that “had followed successful legal challenges that did not disprove factual guilt.” Id. 

We do not believe they clearly erred in concluding that “it is implausible that Judge Jones 

labeled actual innocence itself as a ‘technicality.’” Id.

D.

Petitioners also contend that Judge Jones’s alleged statements regarding foreign nationals 

and international law claims “evince her lack of impartiality when adjudicating claims based on 
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foreign citizenship.” Pet. for Rev. 15-16. According to Petitioners, the “sworn testimony” 

demonstrates that “Judge Jones denigrated persons of Mexican origin (as well as other Latino 

people), including Mexican Americans.” Id. 16 (citing Ex. A, ¶ 28; Ex. B, ¶ 28). The Circuit 

Judicial Council and the Special Committee concluded, however, that Judge Jones’s

statements—as clarified during the question-and-answer portion of the lecture—were “statistical 

statements” that “[did] not by themselves indicate racial bias or an inability to be impartial.” 

Special Comm. Rep. 27. We find no clear error in this conclusion for the reasons noted above. 

Nor can we find clear error in the Circuit Judicial Council and the Special Committee’s 

conclusion that they could not find by a preponderance of the evidence that Judge Jones said that 

a Mexican national would rather be in prison in the United States than Mexico, even if he were 

not subject to the death penalty there. Id. 36-37. Again, the Circuit Judicial Council and the 

Special Committee weighed all of the evidence in considering this allegation.

Petitioners also contest the Circuit Judicial Council and the Special Committee’s 

resolution of whether Judge Jones’s statement “that she thought a defense raised by foreign 

nationals, based on the government’s failure to notify them of the right to consult with consular 

officials, was a ‘red herring.’” Id. 35. Given their earlier determination that Judge Jones’s use of 

the term “red herring” referenced claims that are likely to be unsuccessful, id. 30, it was not error 

to find that “Judge Jones’ contention that a defense based on a defendant’s inability to consult 

with consular officials has been unlikely to succeed cannot be considered misconduct,” id. 36.

E.

Finally, Petitioners argue that Judge Jones discussed the merits of various cases pending 

before her and that this discussion “would inevitably ‘lower confidence in the courts’ and fail to 

promote ‘confidence in the integrity and impartiality of the judiciary.’” Pet. for Rev. 16-18. The 
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Circuit Judicial Council and the Special Committee concluded that to the extent Judge Jones’s

discussion extended to the merits of any pending matters, that discussion came within the 

“scholarly presentations” exception of Canon 3A(6) of the Code of Conduct for United States

Judges (“Code”), permitting such comments with regard to “scholarly presentations made for 

purposes of legal education.” Special Comm. Rep. 68. They further concluded that Judge Jones’s

statements did not violate Canon 2A of the Code, providing that a judge “should act at all times 

in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” or 

Rule 3(h)(2), which defines “cognizable misconduct” to include “conduct occurring outside the

performance of official duties . . . [that] might have a prejudicial effect on the administration of 

the business of the courts, including a substantial and widespread lowering of public confidence 

in the courts among reasonable people” because she had already expressed these views in 

published judicial opinions. Id. 68-71.

Petitioners challenge this conclusion without raising any argument regarding the 

“scholarly presentations” exception. Rather, Petitioners contend the Circuit Judicial Council and 

the Special Committee “disregarded the evidence concerning how [Judge Jones’s] conduct 

would inevitably ‘lower confidence in the courts’ and fail to promote ‘confidence in the integrity 

and impartiality of the judiciary.” Pet. for Rev. 18-19 (citing Mr. Bookman’s and the student 

affidavits submitted in support of the Complaint). We find no error of law in the Circuit Judicial 

Council and the Special Committee’s conclusion that “there is no reason to expect that reiteration 

of [Judge Jones’s] well-known views in a public forum would either ‘denigrate public 

confidence in the judiciary’s integrity and impartiality,’ Canon 3A(6) cmt., or cause ‘a 

substantial and widespread lowering of public confidence in the courts among reasonable 

people,’ Judicial-Conduct Rule 3(h)(2).” Special Comm. Rep. 70 (citing Liteky v. United States, 
14

510 U.S. 540, 555 (1994); United States v. Ciavarella, 716 F.3d 705, 723 (3d Cir. 2013); United 

States v. Allen, 587 F.3d 246, 252 & n.12 (5th Cir. 2009); United States v. Voccola, 99 F.3d 37, 

42-43 (1st Cir. 1996); Comm. on Codes of Conduct, Advisory Opinion No. 66 (2009)).6

* * *

Petitioners also contest various aspects of the judicial misconduct complaint process. 

They argue that the Special Committee “refused to allow Complainants to testify” at the Special 

Committee’s hearing. Pet. for Rev. 7. They also contend the Judicial Conduct and Disability 

Committee must reverse the Circuit Judicial Council’s Order based on the “secrecy” of the 

proceedings and their inability to review portions of the underlying evidence. See, e.g., id. 9 n.6.

The Rules outline “standards guiding the various officers and bodies who must exercise 

responsibility under the Act.” R.1 cmt. The Rules also provide a mechanism to review alleged 

misconduct by judges. When, as here, a complaint presents sufficient factual matter to raise “a 

reasonable dispute over credibility,” R.11 cmt., the matter should proceed to a Special 

Committee. The Special Committee then has dual roles: one as an investigator and one as a 

fact-finder. R.13 cmt. Though the Special Committee’s investigation, particularly fact-finding 

hearings, will take on “something of an adversary character,” the “proceedings are primarily 

inquisitorial rather than adversarial.” R.14 cmt. 

The Rules provide that the Special Committee has the discretion and flexibility to 

conduct its investigation as appropriate to the circumstances. The Special Committee can 

“determine the appropriate extent and methods of the investigation in light of the allegations of 

 6 Petitioners’ argument also fails for the reasons noted above. Namely, the Special Committee 

considered all of the evidence, including the affidavits in support of the Complaint, and weighed 

that evidence. See Special Comm. Rep. 22. We find no clear error in the Special Committee’s 

consideration or weighing of that evidence.
15

the complaint.” R. 13(a). See also R. 14 cmt. (“With respect to testimonial evidence, the subject 

judge should normally be called as a committee witness.”). Here, Special Counsel Bellin 

interviewed the six individuals who attended Judge Jones’s lecture and who submitted affidavits 

in support of the Complaint, as well as many others. The Special Committee reviewed Special 

Counsel Bellin’s Report reflecting these interviews and held a hearing where it took the sworn 

testimony of Judge Jones and Mark Bookman (the author of the “primary affidavit” in this 

matter). 

There is no indication either in the Petition for Review or in the record below that the 

Circuit Judicial Council and the Special Committee failed to seek any potentially material 

evidence or otherwise failed to exercise sound discretion in pursuing this investigation. When 

considered in light of its exhaustive investigation, the factual findings it was able to reach, its 

inability to make other findings, and the entire record before it, we see no error in the Circuit 

Judicial Council’s ultimate conclusion that misconduct was not established by a preponderance 

of the evidence. 

CONCLUSION

For the above reasons, we deny the Petition for Review.
Judicial Council

OF THE DISTRICT OF COLUMBIA CIRCUIT

In re CHARGES OF JUDICIAL MISCONDUCT

No. DC-13-90021

No. 05-13-90099 (Fifth Circuit) 

August 12, 2014

Before: GARLAND, Chief Judge, U.S. Court of Appeals for

the District of Columbia Circuit; KAVANAUGH, SRINIVASAN,

MILLETT, and PILLARD, Circuit Judges; ROBERTS, Chief Judge,

U.S. District Court for the District of Columbia; A. JACKSON,

CONTRERAS, and K.JACKSON, District Judges.

ORDER

Thirteen individuals and public interest groups filed a

Complaint of Judicial Misconduct against Judge Edith Jones of

the United States Court of Appeals for the Fifth Circuit,

pursuant to 28 U.S.C. § 351(a). The complainants asked the

Judicial Council of the Fifth Circuit to request that the Chief

Justice of the United States transfer the proceeding to the

judicial council of another circuit, pursuant to Rule 26 of the

Rules for Judicial-Conduct and Judicial-Disability Proceedings

of the Judicial Conference of the United States. On June 7,

2013, Chief Judge Stewart of the Fifth Circuit wrote to Chief

Justice Roberts, requesting that he transfer the case. On June 12,

2013, Chief Justice Roberts transferred the Complaint to the

Judicial Council of the District of Columbia Circuit. 
2

On July 19, 2013, pursuant to 28 U.S.C. § 353(a) and

Judicial-Conduct Rules 11(f) and 12, Chief Judge Garland of the

United States Court of Appeals for the District of Columbia

Circuit appointed a Special Committee to consider the

allegations of the Complaint. The Special Committee consisted

of Chief Judge Garland, Circuit Judge Griffith, and Chief Judge

Roberts of the United States District Court for the District of

Columbia. The Special Committee has submitted its Report to

the Judicial Council, pursuant to 28 U.S.C. § 353(c) and

Judicial-Conduct Rule 17.

Upon due consideration, it is ORDERED by the Judicial

Council that the Report of the Special Committee be adopted by

the Council and that, based on the findings and for the reasons

stated therein, the above-referenced Complaint be dismissed.

It is FURTHER ORDERED that the Report of the Special

Committee be attached as an appendix to this Order, and that

this Order and the Report be released to the public.

So ordered.

APPENDIX

REPORT OF THE SPECIAL COMMITTEE 
Judicial Council

OF THE DISTRICT OF COLUMBIA CIRCUIT

 )

In re: Complaint ) Judicial Complaint

of Judicial Misconduct ) No. DC-13-90021

 ) No. 05-13-90099 (5th Cir.)

 )

Report of the Special Committee

to the Judicial Council of the District of Columbia Circuit

Merrick B. Garland, Chief Judge,

U.S. Court of Appeals for the D.C. Circuit

Thomas B. Griffith, Circuit Judge,

U.S. Court of Appeals for the D.C. Circuit

Richard W. Roberts, Chief Judge,

U.S. District Court for the District of Columbia

July 7, 2014

CONFIDENTIAL PURSUANT TO JUDICIAL-CONDUCT RULE 23
2

Thirteen individuals and public interest groups have filed a

Complaint of Judicial Misconduct against Judge Edith Jones of

the United States Court of Appeals for the Fifth Circuit. The

Complaint alleges misconduct arising from remarks Judge Jones

made at a lecture on the death penalty at the University of

Pennsylvania Law School on February 20, 2013. The Complaint

also alleges that Judge Jones was disrespectful to a fellow Fifth

Circuit judge during an en banc argument on September 20,

2011. For the reasons discussed below, the Special Committee

recommends that the Judicial Council dismiss the Complaint. 

I

On June 4, 2013, the complainants filed their Complaint

against Judge Jones with the Judicial Council of the Fifth

Circuit, pursuant to 28 U.S.C. § 351(a). The eleven-page

Complaint was supported by eight affidavits. The affiants

included six people who attended Judge Jones’ lecture at the

University of Pennsylvania. They also included two attorneys

who opined, on the assumption that the facts set out in the

affidavits were accurate, that Judge Jones had violated federal

and Texas state canons of judicial conduct.

The complainants asked the Judicial Council of the Fifth

Circuit to request that the Chief Justice of the United States

transfer the proceeding to the judicial council of another circuit,

pursuant to Rule 26 of the Rules for Judicial-Conduct and

Judicial-Disability Proceedings of the Judicial Conference of the

United States (Judicial-Conduct Rules). On June 7, 2013, Chief

Judge Stewart of the Fifth Circuit wrote to Chief Justice

Roberts, requesting that he transfer the Complaint. Chief Judge

Stewart stated that a transfer was warranted given the “highly

visible” nature of the allegations, the fact that the subject of the

Complaint was “the immediate past chief judge” of the circuit,

and the fact that the Complaint included allegations regarding
3

Judge Jones’ conduct toward a fellow circuit judge who was a

member of the Fifth Circuit’s Judicial Council. See Letter from

Chief Judge Stewart to Chief Justice Roberts (June 7, 2013).

On June 12, Chief Justice Roberts transferred the Complaint

to the Judicial Council of the District of Columbia Circuit. 

Thereafter, the D.C. Circuit received allegations of other

instances of misconduct by Judge Jones. Because the Chief

Justice had only granted the D.C. Circuit Judicial Council

authority to resolve allegations relating to the two incidents

described in the June 4, 2013 Complaint, those who made such

submissions were advised that allegations regarding other events

would have to be filed with the Judicial Council of the Fifth

Circuit.1

On June 20, pursuant to 28 U.S.C. § 352(a) and JudicialConduct Rule 11(f), Chief Judge Garland of the D.C. Circuit

notified Judge Jones of the transfer of the Complaint and invited

her to submit a response, which she did on July 12. The

response included a letter in which Judge Jones denied engaging

in the alleged misconduct. It also included the handwritten

notes that Judge Jones brought to her lecture at the University of

Pennsylvania, her ex post recollections of the lecture, and

various related news articles, blog posts, and legal documents. 

On July 19, pursuant to 28 U.S.C. § 353(a) and JudicialConduct Rules 11(f) and 12, Chief Judge Garland appointed this

Special Committee to consider the allegations in the Complaint. 

See, e.g., Letter from Elizabeth H. Paret, Circuit Executive, D.C. 1

Circuit, to Nan Aron, President, Alliance for Justice (June 27, 2013)

(noting that, for the reason stated above, the D.C. Circuit Judicial

Council could accept the Alliance’s letter only “as background and

contextual information in ‘support of’ the [Fifth Circuit] complaint

and of the need for a ‘full investigation’ of its allegations”).
4

See 28 U.S.C. § 352(a) (“The chief judge shall not undertake to

make findings of fact about any matter that is reasonably in

dispute”); Judicial-Conduct Rule 11(b) (same). The Committee

is composed of Chief Judge Garland, Circuit Judge Thomas

Griffith, and Chief Judge Richard Roberts of the U.S. District

Court for the District of Columbia. On August 6, 2013, the

Committee appointed Jeffrey Bellin, Associate Professor of Law

at William and Mary Law School, as Special Counsel to the

Committee to investigate the Complaint’s factual allegations. 

See Judicial-Conduct Rule 13(c).

On September 9, 2013, Judge Jones submitted an additional

letter to the Committee that contained an excerpt from a report

of the Defender Services Committee of the Judicial Conference

of the United States. See infra note 20. Thereafter, the D.C.

Circuit Judicial Council received further materials from third

parties supporting Judge Jones, including: a declaration from a

recent graduate of the University of Pennsylvania Law School

who attended Judge Jones’ lecture; a character reference by

Gerald H. Goldstein, a past president of the National

Association of Criminal Defense Lawyers and the Texas

Criminal Defense Lawyers Association; a letter from 62 of

Judge Jones’ former law clerks; and a separate letter from

another former law clerk of the judge.

Special Counsel Bellin interviewed a total of 45 people,

including most of the attendees at the lecture. The great 2

majority of the latter were University of Pennsylvania law

students. Special Counsel Bellin also interviewed all of the nonstudent attendees. Those included the law school’s Associate

Director for Clerkships; three assistant federal defenders; and

Special Counsel Bellin communicated with an additional eight 2

attendees by email. Their email correspondence indicated that

interviews would not be fruitful. See Special Counsel Report 7.
5

Marc Bookman, the Director of the Atlantic Center for Capital

Representation and the author of the principal affidavit

submitted in support of the Complaint. The Special Counsel

determined that no faculty members attended the lecture.

After extensive investigative efforts, Special Counsel Bellin

concluded that Judge Jones’ lecture had not been recorded. He

did, however, obtain all available contemporaneous

documentation of the lecture: photographs of the event; Judge

Jones’ handwritten notes outlining her planned remarks; the

handwritten notes of an Assistant Federal Defender in the

Capital Habeas Unit of the Federal Community Defender Office

in Philadelphia, who was present at the lecture; the electronic

notes of another Assistant Federal Defender; and a student text

message exchange quoting Judge Jones. The Special Counsel

also obtained a number of documents created soon after the

lecture, including a summary of Judge Jones’ remarks that the

first Assistant Federal Defender mentioned above made upon

returning to her office, and a student attendee’s text message to

a legal blog and email to a fellow student attendee sent after the

Complaint was filed. All documents were voluntarily provided

to the Special Counsel.

The Special Counsel reviewed all of the affidavits and

submissions received by the Judicial Council and the

Committee. He also reviewed the dockets and published

opinions of all of the cases that Judge Jones discussed in her

lecture to assess their status at the time of the lecture. After

completing his investigation, the Special Counsel prepared a

report, which he submitted to the Special Committee. The

Special Committee then scheduled a hearing pursuant to

Judicial-Conduct Rule 14. At the hearing, the Committee took

the testimony of both Judge Jones and Mr. Bookman. After the

hearing, the Special Counsel prepared a supplemental report
6

further describing the status of the specific cases discussed in the

lecture.

Pursuant to 28 U.S.C. § 353(c) and Judicial-Conduct Rule

17, the Special Committee now submits this report of its

findings and recommendation to the Judicial Council, together

with the Special Counsel’s reports and the transcript of the

hearing.

II

Three sets of rules regulating judges’ conduct are relevant

here: the Judicial Conduct and Disability Act; the JudicialConduct Rules; and the Code of Conduct for United States

Judges.

The Judicial Councils Reform and Judicial Conduct and

Disability Act of 1980, 28 U.S.C. §§ 351-64, is a statutory

scheme that establishes an administrative complaint process by

which circuit judicial councils can address allegations of judicial

misconduct or disability. The Act provides that “[a]ny person

alleging that a judge has engaged in conduct prejudicial to the

effective and expeditious administration of the business of the

courts . . . may file with the clerk of the court of appeals for the

circuit a written complaint containing a brief statement of the

facts constituting such conduct.” Id. § 351(a).

Pursuant to the Act, the Judicial Conference of the United

States has promulgated the Judicial-Conduct Rules. See Preface,

Judicial-Conduct Rules (citing 28 U.S.C. §§ 331, 358). The

Rules establish standards and procedures for addressing

complaints filed by complainants under the Act, and they govern

proceedings under the Act to determine whether a judge has

engaged in misconduct. Judicial-Conduct Rule 1. Other than in

“exceptional circumstances,” the Rules are “mandatory.” 
7

Judicial-Conduct Rule 2(a), (b). They define “misconduct” as,

inter alia, “conduct prejudicial to the effective and expeditious

administration of the business of the courts,” and “conduct

occurring outside the performance of official duties if the

conduct might have a prejudicial effect on the administration of

the business of the courts, including a substantial and

widespread lowering of public confidence in the courts among

reasonable people.” Judicial-Conduct Rule 3(h)(1), (2). The

Rules acknowledge that “[t]he phrase ‘prejudicial to the

effective and expeditious administration of the business of the

courts’ is not subject to precise definition.” Judicial-Conduct

Rule 3, cmt.

The Judicial Conference has also adopted a Code of

Conduct for United States Judges. It “is designed to provide

guidance to judges” and “may also provide standards of conduct

for application in proceedings under the Judicial Councils

Reform and Judicial Conduct and Disability Act of 1980.” 

Canon 1, cmt. The Code states, however, that “[n]ot every

violation of the Code should lead to disciplinary action.” Id.3

The Judicial-Conduct Rules, in turn, state that, “[a]lthough the

Code of Conduct for United States Judges may be informative”

as to the meaning of the phrase “prejudicial to the effective and

expeditious administration of the business of the courts,” the

Code’s “main precepts are highly general; the Code is in many

potential applications aspirational rather than a set of

disciplinary rules.” Judicial-Conduct Rule 3, cmt.

See Canon 1, cmt. (“Whether disciplinary action is appropriate” 3

depends “on such factors as the seriousness of the improper activity,

the intent of the judge, whether there is a pattern of improper activity,

and the effect of the improper activity on others or on the judicial

system.”).
8

The Code is composed of five canons, four of which are

cited in the Complaint. The most relevant portions of those

canons are as follows.

Canon 1 provides that “a judge should uphold the integrity

and independence of the judiciary.” Canon 1. The commentary

to Canon 1 explains that “[a]dherence to” the Canons “helps to

maintain public confidence in the impartiality of the judiciary.” 

Canon 1, cmt.

Canon 2 provides that “a judge should avoid impropriety

and the appearance of impropriety in all activities,” Canon 2,

and “should act at all times in a manner that promotes public

confidence in the integrity and impartiality of the judiciary,”

Canon 2A. The commentary to this canon explains that “[a]n

appearance of impropriety occurs when reasonable minds, with

knowledge of all the relevant circumstances disclosed by a

reasonable inquiry, would conclude that the judge’s honesty,

integrity, impartiality, temperament, or fitness to serve as a

judge is impaired.” Canon 2A, cmt. Canon 2A’s prohibition

“applies to both professional and personal conduct.” Id.

Canon 3 provides that “a judge should perform the duties of

the office fairly [and] impartially.” As part of this requirement,

“[a] judge should be patient, dignified, respectful, and

courteous” toward those “with whom the judge deals in an

official capacity.” Canon 3A(3). 

Canon 3 also declares that judges “should not make public

comment on the merits of a matter pending or impending in any

court.” Canon 3A(6). The canon includes an exception that is

relevant here: “The prohibition on public comment on the

merits does not extend to . . . scholarly presentations made for

purposes of legal education.” Id.
9

Finally, Canon 4 provides that a “judge may engage in

extrajudicial activities . . . and may speak, write, lecture, and

teach on both law-related and nonlegal subjects.” Canon 4. 

This authorization extends to discussion of “the law, the legal

system, and the administration of justice.” Canon 4A(1). The

Code cautions, however, that “a judge should not participate in

extrajudicial activities that detract from the dignity of the

judge’s office, interfere with the performance of the judge’s

official duties, reflect adversely on the judge’s impartiality,” or

“lead to frequent disqualification.” Canon 4.

As noted above, although we consider these canons in

determining whether Judge Jones engaged in judicial

misconduct under the Judicial Conduct and Disability Act,

disciplinary action is appropriate only if her behavior satisfies

the definition of “misconduct” found in the Judicial-Conduct

Rules. 

Neither the Judicial Conduct and Disability Act, nor the

Judicial-Conduct Rules, nor the Code of Conduct expressly

indicates what burden of proof a judicial council should apply

in its factfinding in a judicial misconduct proceeding. The

Judicial-Conduct Rules state that a judicial council may dismiss

a complaint because “the facts on which the complaint is based

have not been established,” Judicial-Conduct Rule

20(b)(1)(A)(iii) (emphasis added), suggesting that the standard

must at least be preponderance of the evidence. In the

analogous context of attorney disciplinary proceedings, the

American Bar Association’s Model Rules and most state and

federal jurisdictions that have addressed the question require

complainants (or disciplinary counsel) to establish misconduct

by clear and convincing evidence, although a sizable minority 4

A.B.A., MODEL RULES FOR LAWYER DISCIPLINARY 4

ENFORCEMENT R. 18.3, 18.4 (2002); 7A C.J.S. Attorney & Client
10

require only a preponderance of the evidence. None applies a 5

lesser standard.6

§ 103 (West 2013) (“As a general rule, charges of misconduct of an

attorney must be supported by evidence which is clear and

convincing.” (collecting state authorities)); see, e.g., 2d Cir. R.

46.2(b)(3)(G); Sealed Appellant 1 v. Sealed Appellee 1, 211 F.3d 252,

254-55 (5th Cir. 2000); In re Oladiran, No. 10-0025, 2010 WL

3775074, at *7 (D. Ariz. Sept. 21, 2010); D. Colo. Att’y R. 7(f); D.

Conn. Civ. R. 83.2(d)(5); In re Levine, 675 F. Supp. 1312, 1318 & n.4

(M.D. Fla. 1986); D. Kan. R. 83.6.3(f)(2)(D); E.D. La. Lawyer

Disciplinary Enforcement R. 2; D. Mont. L. R., App. B, R. 4(E)(v);

D.N.J. Civ. R. 104.1(e)(14); E.D.N.Y. & S.D.N.Y. Civ. R. 1.5(b);

E.D. Tenn. L.R. 83.7(i)(4); In re Jacques, 972 F. Supp. 1070, 1079

(E.D. Tex. 1997); In re Placid Oil, 158 B.R. 404, 413 (N.D. Tex.

1993); In re Ryder, 263 F. Supp. 360, 361 (E.D. Va. 1967).

See, e.g., E.D. Mich. R. 83.22(e)(6)(E); W.D. Mich. Civ. R. 5

83.1(k)(ii)(B)(3); D. Utah Civ. R. 83-1.5.7(e); Ark. Judicial Discipline

& Disability Comm’n, R. P. 15(g)(1); Ky. Sup. Ct. R. 3.330; Me. Bar

R. 7.2(b)(4); Mass. Bd. of Bar Overseers R. § 3.28; Mich. Ct. R.

9.211(A); In re Crews, 159 S.W.3d 355, 358 (Mo. 2005) (en banc); In

re Capoccia, 59 N.Y.2d 549, 551 (N.Y. 1983); Tenn. Sup. Ct. R. 9

§ 15.2(h); Tex. Disciplinary P. R. 2.17(M).

Some jurisdictions have adopted unique burdens of proof that 6

seem to straddle the line between clear and convincing evidence and

preponderance of the evidence. For example, Washington employs a

“clear preponderance” standard. See Wash. Enforcement of Lawyer

Conduct R. 10.14(b). Iowa employs a “convincing preponderance”

standard. See Iowa Sup. Ct. Att’y Disciplinary Bd. v. Rhinehart, 827

N.W.2d 169, 171 (Iowa 2013). And South Dakota’s standard is a

“clear and undoubted preponderance” of the evidence. See In re

Discipline of Stanton, 446 N.W.2d 33, 41 (S.D. 1989).
11

This Circuit has never determined what burden of proof

applies in judicial misconduct proceedings. Nor need we do so 7

here. Our disposition would be the same regardless of whether

a preponderance or clear-and-convincing standard applies.

III

We begin with the allegations arising out of an oral

argument before the United States Court of Appeals for the Fifth

Circuit, held in New Orleans, Louisiana on September 20, 2011.

A

On September 20, 2011, the Fifth Circuit, sitting en banc,

heard argument in United States v. Delgado, 672 F.3d 320 (5th

Cir. 2012). Judge Jones was the Chief Judge of the Circuit at

the time of the argument. Near the conclusion of the

government’s argument, Judge James Dennis asked counsel a

series of questions. A transcription of the relevant portions of

the oral argument is set out below.8

Government: I think the amount of drugs in that truck

supports the intent to distribute. And the jury . . . 

We have, however, said that whenever a district court is 7

exercising an inherent power that is “fundamentally penal -- dismissals

and default judgments, as well as contempt orders, awards of

attorneys’ fees, and the imposition of fines -- the district court must

find clear and convincing evidence of the predicate misconduct.”

Shepherd v. Am. Broad. Cos., 62 F.3d 1469, 1478 (D.C. Cir. 1995).

The Fifth Circuit does not have an official transcript for this 8

argument; the above transcription is based on the oral argument

recording. See Oral Argument Recording at 47:40, Delgado, 672 F.3d

320, available at http://www.ca5.uscourts.gov/OralArgRecordings

/07/07-41041_9-20-2011.wma.
12

Judge Dennis: Well, we’ve said over and over that the

amount . . . this court, no court has said that you can

infer . . . 

Chief Judge Jones: Judge Dennis.

Judge Dennis: . . . just on the basis of the amount of

drugs.

Chief Judge Jones: Judge Dennis!

Judge Dennis: . . . Can I . . . can I ask a question?

Chief Judge Jones: You have monopolized . . . seven

minutes.

Judge Dennis: Well, you know, I’m way behind on

asking questions in this court. I have been quiet a lot

of times, and I am involved in this case.

[There is then a noise that the complainants allege and

Judge Jones acknowledges is the sound of her

slamming her hand on the bench. See Compl. 2;

Special Counsel Report 50 n.253.]

Chief Judge Jones: Would you like to leave?

Judge Dennis: Pardon? What did you say?

Chief Judge Jones: I want you to shut up long enough

for me to suggest that perhaps . . . 

Judge Dennis: Don’t tell me to shut up.
13

Chief Judge Jones: . . . you should give some other

judge a chance to ask a question.

Judge Dennis: Listen, I have been in this courtroom

many times . . .

Chief Judge Jones: [The government attorney] has

had . . .

Judge Dennis: . . . and gotten closed out and not able

to ask a question. I don’t think I’m being overbearing.

Chief Judge Jones: You’ve been asking questions for

the entire seven minutes that he has had open so far.

Judge Dennis: Well, I happen to be through. I have no

more questions.

Chief Judge Jones: I just want to offer any other judge

an opportunity to ask a question. Some may support

your position. If nobody else chooses to ask a

question, then please go forward.

Another judge on the en banc panel then asked a question.

At the end of the next argument on the court’s calendar that

day, Judge Jones offered an apology to Judge Dennis. Judge 9

The oral argument recording cuts off Judge Jones’ apology after 9

she says, “At this time, I would apologi . . . .” Oral Argument

Recording at 1:01:36, United States v. Kebodeaux, 687 F.3d 232 (5th

Cir. 2012), available at http://www.ca5.uscourts.gov/

OralArgRecordings/08/08-51185_9-20-2011.wma. The Clerk of

Court for the Fifth Circuit confirmed that there is no other recording

available. See Special Counsel Report 51 & n.257.
14

Jones noted this apology in her letter to the Special Committee

and advised the Committee that Judge Dennis had accepted it. 

See Letter from Judge Jones to Chief Judge Garland at 3 n.1

(July 12, 2013). The Special Counsel confirmed this directly

with Judge Dennis, who said that Judge Jones apologized after

the next argument, that he accepted the apology, and that he told

her that he had not taken any offense. Judge Dennis informed

the Special Counsel that, as far as he was concerned, that was

the end of the matter. Special Counsel Report 51.

B

The Complaint alleges that Judge Jones exhibited “extreme

disrespect” to fellow Fifth Circuit Judge Dennis, in violation of

Canons 1, 2, and 3. Compl. 2, 9. In particular, it alleges that

Judge Jones violated Canon 3’s “duty to be respectful” to those

“with whom the judge deals in an official capacity.” Id. at 9-10

(quoting Canon 3A(3) & cmt.).

Judge Jones does not dispute that she made the abovequoted remarks, nor that they were improperly disrespectful of

Judge Dennis. She has, however, already apologized for the

incident. The Judicial-Conduct Rules provide that a complaint

may be dismissed if “the subject judge has taken appropriate

voluntary corrective action that acknowledges and remedies the

problems raised by the complaint.” Judicial-Conduct Rule

11(d)(2). The Rules list “an apology” as an example of

appropriate corrective action. Judicial-Conduct Rule 11, cmt. 

Indeed, circuit judicial councils have repeatedly found that an

apology to the affected person is ordinarily the appropriate

corrective action for an intemperate comment and is sufficient

to permit dismissal of a complaint. See In re Charges of

Judicial Misconduct, 465 F.3d 532, 547 & n.6 (2d Cir. Jud.

Council 2006); In re Charges of Judicial Misconduct, 404 F.3d

688, 696-97 (2d Cir. Jud. Council 2005); see also In re Cudahy,
15

294 F.3d 947, 953-54 (7th Cir. Jud. Council 2002) (declining to

decide whether a judge committed misconduct because, “in any

event,” he promptly took appropriate corrective action by

apologizing).

In light of Judge Jones’ voluntary, virtually

contemporaneous apology to Judge Dennis, stated on the record

during the same court sitting at which she made her

inappropriate remarks, taken together with Judge Dennis’

gracious acceptance of that apology, the Committee concludes

that this aspect of the Complaint should be dismissed.

IV

We now turn to the second event at issue in the Complaint,

the lecture Judge Jones delivered on February 20, 2013 at the

University of Pennsylvania Law School. 

A

In the summer of 2012, the student-run chapter of the

Federalist Society at the University of Pennsylvania Law School

invited Judge Jones to speak about the death penalty. The

Federalist Society chapter advertised the event within the law

school and to the public as a discussion of “federal death penalty

review through the perspective of a federal judge.” Special

Counsel Report 4. Judge Jones delivered the lecture, entitled

“Federal Death Penalty Review with Judge Edith Jones (5th

Cir.),” on February 20, 2013. Id. She spoke for about 45

minutes and then answered questions. Although there is general

agreement that she discussed the points set out below, there is

considerable dispute regarding her wording and tone.

Judge Jones’ remarks on the death penalty focused on three

questions: “Is the death penalty constitutional?” “Is the death
16

penalty morally justifiable?” And “Is the death penalty

working?” Her theme was that, although many of the traditional

arguments against the death penalty are “red herrings,” and

although the death penalty is both constitutional and morally

justifiable, its actual application is costly and flawed. The

description we set out in this subpart is largely uncontested and,

where contested, is supported by at least a preponderance of the

evidence. That evidence includes Judge Jones’ pre-lecture

notes, her subsequent recollections of the lecture, and the notes

and recollections of those who heard the lecture. See, e.g.,

Judge Edith H. Jones, Recollections of Death Penalty Speech

[hereinafter Jones Recollections]; Assistant Federal Defender,

Summary of Feb. 20, 2013 Edith Jones Lecture [hereinafter 

Assistant Federal Defender Summary]; Special Counsel Report

6-14.

In discussing capital punishment’s constitutionality, Judge

Jones said that she is an advocate of constitutional interpretation

based on original meaning, and that because capital punishment

is mentioned in the Constitution, it must be constitutional. She

does not believe, she said, that “evolving standards of decency”

can render capital punishment unconstitutional. She concluded

that, because current Supreme Court case law holds capital

punishment constitutional with specified limitations, that is the

end of the matter for a lower court judge. See, e.g., Jones

Recollections 3-4; Assistant Federal Defender Summary 1.

With respect to whether the death penalty is justifiable,

Judge Jones said that the death penalty is “part of a thousandsyear old Judeo-Christian tradition” and that the Book of

Deuteronomy prescribes death as the punishment for murder. 

As a Christian, she said, she adheres to the tradition, while as

judge, she follows the law. During this discussion, Judge Jones

noted that the Catholic Church has taken varying positions on
17

capital punishment at various times. See, e.g., Jones

Recollections 5-6; Assistant Federal Defender Summary 1.

Also regarding justification, Judge Jones described the facts

of a number of capital cases that she had heard as a Fifth Circuit

judge. Her purpose, she said, was to inform the audience of the

heinous nature of the crimes for which the death penalty had

been imposed during her tenure. See, e.g., Jones Recollections

6-10; Assistant Federal Defender Summary 1-2.

On the question of whether the death penalty is “working,”

Judge Jones noted that, during the 1970s and 1980s, the

Supreme Court had restricted several aspects of capital

punishment law and procedure. She said that those

developments, combined with the availability of federal habeas

corpus, had led to “chaotic” procedures. She further noted that,

beginning in the latter half of the 1980s, the Rehnquist Court

had imposed limits on the scope of the writ. Those limits, she

said, combined with the passage of the Antiterrorism and

Effective Death Penalty Act of 1996, made the Fifth Circuit’s

capital post-conviction docket less “chaotic.” See, e.g., Jones

Recollections 10-14; Assistant Federal Defender Summary 2.

Judge Jones then turned to the 2002 case of Atkins v.

Virginia, in which the Supreme Court held that execution of “a

mentally retarded offender” violates the Eighth Amendment’s

ban on cruel and unusual punishments. 536 U.S. 304, 321

(2002). Atkins left it to the states to determine who met that

standard, id. at 317, a decision that Judge Jones said created

significant uncertainty in this area of law. She again discussed

several Fifth Circuit decisions and noted a pending Supreme

Court case. See, e.g., Jones Recollections 14-17; Assistant

Federal Defender Summary 2.
18

Finally, still on the “Is it working?” portion of the

discussion, Judge Jones said that the procedures for charging

and imposing the federal death penalty are “incredibly

convoluted.” In particular, she questioned the reasonableness

and cost-effectiveness of the Justice Department’s practices in

seeking death penalty convictions. She concluded by saying

that, although she believes the death penalty is constitutional and

morally justifiable, society may have to reconsider whether it is

worth the effort currently required to impose it. See, e.g., Jones

Recollections 17-19; Assistant Federal Defender Summary 2-3.

At some point during her lecture, Judge Jones said that

certain kinds of challenges to capital punishment are “red

herrings.” Those included the charge that the death penalty is

administered in a racially discriminatory manner, and a defense

raised by foreign nationals based on the failure of arresting

authorities to inform them of their right to contact their

consulates. See, e.g., Jones Recollections 19-20 (citing

McCleskey v. Kemp, 481 U.S. 279 (1987); Breard v. Green, 523

U.S. 371 (1998); Sanchez-Llamas v. Oregon, 548 U.S. 331

(2006)); Assistant Federal Defender Summary 3-4.

During the question-and-answer period that followed the

lecture, a student asked Judge Jones to clarify her views

regarding the involvement of certain minority groups in criminal

activity. See infra Part V.A. Others asked questions as well. 

The judge was asked two questions by Marc Bookman, who

later submitted an affidavit in support of the Complaint in this

matter. See, e.g., Assistant Federal Defender Summary 4. That

exchange ended the lecture. Special Counsel Report 35-36.

B

As noted above, although there is general agreement

regarding the themes that Judge Jones discussed, the judge and
19

the complainants sharply disagree about the wording and tone of

many of her comments. Because the bulk of the allegations

concern the precise wording and tone that Judge Jones

employed, the Special Counsel searched extensively for a

recording of the lecture. He spoke with the relevant University

of Pennsylvania personnel, including its Chief Information

Officer, all of whom said that the school did not record the

lecture and did not know of a recording. He spoke with, and

received the latter answer from, Judge Jones, all of the Federalist

Society officers, all of the witnesses who submitted affidavits in

support of the Complaint, and all of the other attendees whom

he interviewed. Based on his investigation, the Special Counsel

concluded that “there is no indication that the talk was

recorded.” Special Counsel Report 5.

In the absence of a recording, the best sources of evidence

of what Judge Jones said during her lecture were the

recollections and notes of the people who attended. The Special

Counsel found, however, that many of the attendees had

differing recollections -- or no recollection at all -- of comments

referenced in the Complaint. Although he regarded the

witnesses with whom he spoke as “generally candid and

helpful,” the Special Counsel concluded that “their efforts to

recollect Judge Jones’ language to the degree necessary to

resolve the nuanced factual disputes at issue in the instant

proceeding were inevitably complicated by the failings of

human memory.” Id. at 7-8. The Special Counsel further

explained:

It was also clear from the interviews that the Complaint

and accompanying news accounts were widely

circulated and discussed in the University of

Pennsylvania Law School community over the

summer. Thus, an ever-present danger was that a

witness attempting to recall a remark, might actually be
20

remembering media coverage of the remark, or a

friend’s comments about what Judge Jones had, or had

not, said.

Id. at 8.

As noted in the introduction to this Special Committee

Report, the Special Counsel also obtained all available

contemporaneous documentation of the lecture. This included

three photographs of the event; Judge Jones’ handwritten notes

outlining her planned remarks; the handwritten notes of an

Assistant Federal Defender in the Capital Habeas Unit of the

Federal Community Defender Office in Philadelphia, who was

present at the lecture; notes that another Assistant Federal

Defender typed into her cell phone; and a text message quoting

Judge Jones sent by one student to another during the lecture. 

The Special Counsel also obtained a number of documents

created after the lecture, including a summary of Judge Jones’

remarks that the first Assistant Federal Defender mentioned

above made upon returning to her office; and Judge Jones’

recollections of the lecture some four months later, after the

Complaint was filed. Id. at 8-11.

Attached to the Complaint were eight affidavits, six of

which were from individuals who attended Judge Jones’

lecture. The primary affidavit is that of Mr. Bookman, the 10

Director of the Atlantic Center for Capital Representation, a

“non-profit death penalty resource center serving Pennsylvania

and Delaware” that assists defense attorneys representing capital

defendants. Id. at 11. As the Special Counsel noted, the

The other two affidavits were, as mentioned earlier, from 10

attorneys who opined that Judge Jones’ remarks, assuming they were

accurately represented in the affidavits, violated federal or Texas

canons of judicial conduct.
21

Bookman affidavit “is almost identical to” the Assistant Federal

Defender’s summary of the Jones lecture. Id. at 10. The

Assistant Federal Defender told the Special Counsel that, “about

a month after the talk, she became aware that people were

asking around for witnesses to provide affidavits,” and she

“forwarded her Summary to” Mr. Bookman. Id. The Special

Counsel concluded that “it appears that Bookman took the

document, made slight changes and adopted the resulting

document as his affidavit.” Id. Mr. Bookman acknowledges the

point. Bookman Hr’g Tr. 2-4.

Five affidavits attached to the Complaint were submitted by

students who attended the lecture; those affidavits contain fewer

details than the Bookman affidavit and explicitly reference and

incorporate the Bookman affidavit. See Affs. of Students B-F.

Mr. Bookman testified that, after he attended the lecture, he

called a friend at the University of Texas’ Capital Punishment

Center to discuss Judge Jones’ remarks. This friend asked

Bookman to prepare the document that became his affidavit. 

Bookman Hr’g Tr. 18. At the same time, a University of

Pennsylvania law professor, through her research assistant,

sought out students who attended Judge Jones’ lecture and

forwarded their names to Bookman’s friend, who then

coordinated the collection of affidavits from the students. The

students met with a Philadelphia attorney, who gave the students

the Bookman affidavit, discussed the affidavit and the lecture

with them, and thereafter prepared draft affidavits for them. 

Special Counsel Report 11-12. All of the resulting affidavits

were filed in support of motions seeking Judge Jones’ recusal in

two cases that she discussed in the lecture. See infra Part

VI.A.3-4.

Finally, Judge Jones submitted another student attendee’s

declaration in support of her response. See Student Decl. This

declaration had been solicited by the president of the Federalist
22

Society chapter at the University of Pennsylvania Law School,

who sent out an email seeking declarations after media accounts

of the Complaint appeared. Special Counsel Report 13. After

the student drafted the declaration in question, he submitted it to

an attorney representing Judge Jones in this matter. Id. About

a month earlier, the same student had composed a text message

to a legal blog and an email to the Federalist Society president,

recounting his recollections of Judge Jones’ lecture. Id. at 14. 

The Special Counsel obtained copies of both.

The Committee relies on all of this information, together

with the Special Counsel’s Report, in reaching the conclusions

below. As will be noted, in many instances the absence of a

recording means that the Committee must resolve factual

determinations based on the requirement that misconduct be

established by (at least) a preponderance of the evidence.

C

The Complaint groups Judge Jones’ contested comments

into the following categories: (1) “Comments on Race”; (2)

“Comments on the Intellectually Disabled”; (3) “Comments on

[Claims] of Innocence”; (4) “Comments on Foreign Nationals”;

(5) “Discussion of Individual Cases”; and (6) “Discussion of

Religion as a Justification for the Death Penalty.” It also alleges

that the judge: (7) improperly criticized the U.S. Department of

Justice; (8) “disparaged” the Supreme Court; and (9) delivered

her remarks in an inappropriate tone. In these respects, the

Complaint maintains, the judge’s lecture violated 28 U.S.C.

§ 351 and Code of Conduct Canons 1, 2, 3, and 4. We address

all but the fifth category in Part V below. We address the fifth

category, “Discussion of Individual Cases,” in Part VI.
23

V

In this Part, we address the Complaint’s allegations that

Judge Jones’ remarks exhibited bias toward certain classes of

claimants and claims, that she inappropriately criticized the

Justice Department and Supreme Court, and that she displayed

a lack of appropriate judicial demeanor. 

A. Comments Regarding Race 

During her lecture, Judge Jones addressed and rejected “the

charge that the death penalty is racially administered.” Jones

Recollections 19. The Complaint alleges that, in the course of

that discussion, the judge “made several statements

demonstrating racial bias and indicating a lack of impartiality,”

and uttered “generalized and stereotypical comments about

racial groups and their ‘criminal tendencies.’” Compl. 3.

Specifically, the Complaint alleges Judge Jones said that

certain “racial groups like African Americans and Hispanics are

predisposed to crime” and are “‘prone’ to commit acts of

violence.” Id. at 1. It contends she said that “certain racial

groups” “get involved in more violent and ‘heinous’ crimes than

people of other ethnicities,” that “a lot of Hispanic people [are]

involved in drug trafficking,” and that “‘sadly’ it was a

‘statistical fact’ that people ‘from these racial groups get

involved in more violent crime.’” Id. at 1, 3. And it further

alleges she said that racism was a “red herring” “thrown up by

opponents of capital punishment,” and that no case had ever

been made for “systemic racism” in the administration of the

death penalty. Id. 

The Complaint maintains that Judge Jones’ comments on

race constitute misconduct because they violate, inter alia,

Canon 1’s instruction that a judge should uphold public
24

confidence in the integrity of the judiciary, Canon 2 and 2A’s

prohibition on giving the appearance of impropriety or partiality,

and Canon 4’s prohibition on participating in extrajudicial

activities that “reflect adversely on the judge’s impartiality.” 

In her response, Judge Jones states that her comments on

race came in the context of saying that “the Supreme Court had

rejected, in McCleskey v. Kemp, [481 U.S. 279, 292

(1987),] . . . that statistics about racism could be used as a

defense. That was all I said as I best recall at this point.” Jones

Hr’g Tr. 17. She strongly denies that she said some races “are

inherently more ‘prone,’ ‘have a greater propensity,’ ‘have

criminal tendencies,’ or are ‘pre-disposed’ to commit violent

crimes.” Jones Recollections 20. “I did not say such things,”

she states, “because I have never believed them and have never

said them.” Id.; see Jones Hr’g Tr. 5 (“I have never felt, much

less stated, that some groups are prone or predisposed toward

crime. Crimes are committed by individuals who make bad

choices. I said nothing in the speech inconsistent with [these]

fundamental views.”). Judge Jones acknowledges that she did

make “reference to statistical figures concerning AfricanAmericans and crime . . . [that] showed a racial disproportion,”

and to “Hispanics’ disproportional presence in federal prisons

because of drug smuggling and alien smuggling convictions

which often involve violence.” Jones Recollections 20. Noting

such statistics, she acknowledges that she said that “sadly,

African-Americans seem to be disproportionately on death row,”

id., and that she “may have said” that “sadly some groups seem

to commit more heinous crimes,” Special Counsel Report 16. 

But she insists that she “was talking about statistical facts. I was

not talking about propensities.” Jones Hr’g Tr. 17. The judge

also acknowledges that she referred to racism as a “red herring.” 

Id. at 15; Special Counsel Report 16; Jones Recollections 19. 

But she states that she used the term only to mean that such

“complaints are not well taken from a practical or legal
25

standpoint,” in light of the Court’s decision in McCleskey. Jones

Recollections 19.

The witnesses interviewed by the Special Counsel generally

did not recall the exact language Judge Jones used during her

lecture that related to race. Special Counsel Report 18. Some

witnesses said she did use the phrase “prone to commit”; others

thought that she did not use the phrase, and that they would have

remembered if she had. Id. at 17-19; see also Bookman Hr’g Tr.

13 (“I can’t say for certain exactly the words that she said

initially.”). Four witnesses took notes contemporaneously: two

students noted the phrase in a text message between them; two

assistant federal defenders did not include it in their handwritten

notes.

But whatever the judge said during the lecture, the

witnesses agree that she made clear during the question-andanswer period that followed that she did not mean to suggest

that certain races were “prone” to criminal behavior. Special

Counsel Report 17-19, 21. During that period, she was asked by

a student to clarify her views. As the student explained, in

answering Judge Jones said she was talking about “statistical

fact[s],” not “biology.” Student C Aff. ¶ 13.

Both Mr. Bookman and the Assistant Federal Defender

upon whose summary he relied confirm that description of the

exchange. According to Bookman:

She responded that she did not mean that certain races

were “prone” to such violent behavior -- just that,

“sadly,” they happened to engage in it more often. She

noted there was no arguing that “Blacks” and

“Hispanics” far outnumber “Anglos” on death row and

repeated that “sadly” people from these racial groups

do get involved in more violent crime.
26

Bookman Aff. ¶ 28; see Bookman Hr’g Tr. 13 (same). The

Assistant Federal Defender’s summary indicates that, when

asked a question by a student, Judge Jones responded that “she

did not mean that certain races were ‘prone’ to such violent

behavior -- just that, ‘sadly,’ they happened to engage in it more

often.” Assistant Federal Defender Summary 3. Indeed, the

Assistant Federal Defender told the Special Counsel that she

“felt the media coverage suggesting otherwise -- and

highlighting the ‘prone’ language -- was unfair to Judge Jones.” 

Special Counsel Report 21.

We have no doubt that suggesting certain racial or ethnic

groups are “prone to commit” acts of violence or are

“predisposed to crime” would “reflect adversely on [a] judge’s

impartiality,” reduce “public confidence in the integrity and

impartiality of the judiciary,” and “have a prejudicial effect on

the administration of the business of the courts.” Such

comments would therefore violate both the Code of Conduct and

the Judicial-Conduct Rules. See Canon 4; Canon 1, cmt.;

Judicial-Conduct Rule 3(h)(2). Cf. In re Complaint of Judicial

Misconduct, __ F.3d __, 2013 WL 8149446, at *4 (U.S. Jud.

Conf. 2014) (adopting Ninth Circuit Judicial Council’s finding

that “race-related emails that ‘showed disdain and disrespect for

African Americans and Hispanics’” violated the Code and

constituted misconduct). But in light of the above recitation of

the witnesses’ recollections, we are unable to find, by a

preponderance of the evidence, that Judge Jones made those

comments in her initial remarks. More important, whatever she

said initially, it is clear that Judge Jones used the question-andanswer period to clarify that she did not adhere to such views. 

See supra Part III.B (noting that a complaint may be dismissed

if “the subject judge has taken appropriate voluntary corrective

action that acknowledges and remedies the problems raised by

the complaint,” particularly where the correction takes place

contemporaneously (quoting Judicial-Conduct Rule 11(d)(2))).
27

It appears likely that Judge Jones did suggest that,

statistically, African-Americans and/or Hispanics are

“disproportionately” involved in certain crimes and

“disproportionately” present in federal prisons. Needless to say,

this topic can be extremely sensitive, and we do not doubt the

affiants’ and witnesses’ repeated statements that they found the

remarks offensive. Judge Jones herself recounted that she “was

uncomfortable about alluding to such facts.” Jones

Recollections 20-21. We recognize that, without an explanation

or qualification, saying that certain groups are “more involved

in” or “commit more of” certain crimes can sound like saying

those groups are “prone to commit” such crimes. But we must

consider Judge Jones’ comments in the context of her express

clarification during the question-and-answer period that she did

not mean that certain groups are “prone” to criminal behavior. 

In that context, whether or not her statistical statements are

accurate, or accurate only with caveats, they do not by

themselves indicate racial bias or an inability to be impartial. 

Rather, they resemble other, albeit substantially more qualified,

statements prominent in contemporary debate regarding the

fairness of the justice system.11

See, e.g., Eric Holder, U.S. Attorney General, Remarks at the 11

Annual Meeting of the American Bar Association’s House of

Delegates (Aug. 12, 2013) (“[I]t’s time to ask tough questions about

how we can . . . address the fact that young black and Latino men are

disproportionately likely to become involved in our criminal justice

system -- as victims as well as perpetrators.”); Marc Mauer & David

Cole, Five Myths About Americans in Prison, WASH. POST (June 17,

2011) (“Yes, African Americans and Latinos disproportionately

commit certain crimes. But in a 1996 study of crime rates in

Columbus, Ohio, criminologists from Ohio State University concluded

that socioeconomic disadvantages ‘explain the overwhelming portion

of the difference in crime.’”); Charles Ogletree, The Burdens and

Benefits of Race in America, 25 HASTINGS CONST. L.Q. 217, 228

(1998) (“African-Americans are grossly over-represented in the
28

The evidence also shows that Judge Jones used the term

“red herring” to signify her view that a challenge to the death

penalty on the ground that it is administered in a racially

discriminatory manner is nonviable. When we consider this in

the context of a discussion of McCleskey v. Kemp, 481 U.S. at

292, we again cannot find that such a view indicates improper

bias or misconduct.

B. Comments Regarding the Intellectually Disabled 

In Atkins v. Virginia, the Supreme Court held that execution

of “a mentally retarded offender” violates the Eighth

Amendment. 536 U.S. at 321. In her remarks, Judge Jones

discussed defendants’ subsequent reliance on Atkins to avoid the

imposition of death sentences. In that context, she discussed

cases that illustrated what she regarded as tension between the

commission of a crime warranting the death penalty, and the

diminished mental capacity that requires relief from a death

sentence under Atkins.

criminal justice system. In part, this is due to the fact that, per capita,

black people do commit more crimes than whites. However this fact

alone does not account for the disparities in the crime statistics. In

fact, since the 1970s, rates of black crime have been stable, even

though the rates of prosecution have increased exponentially.”); id. at

228 n.48 (“A number of studies have documented the unusually high

arrest rates for blacks suspected of crime compared to other groups.”);

id. at 236-37 (“The problem is that the decision-making process at

every stage . . . is discriminatory and thus subject to bias (racial or

otherwise) in its applications.”); see also U.S. SENTENCING COMM’N,

2012 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS, tbl.4,

available at http://www.ussc.gov/sites/ default/files/pdf/research-andpublications/annual-reports-and-sourcebooks/2012/Table04.pdf

(providing statistics on race of offenders in each primary offense

category).
29

The Complaint alleges that Judge Jones did the following: 

said “it is a disservice to the ‘mentally retarded’ to exempt them

from the death sentence”; “expressed disgust at the use of

mental retardation as a defense in capital cases,” saying that

“[c]apital defendants who raise claims of ‘mental retardation’

abuse the system”; “characterized capital defendants’ assertions

of ‘mental retardation’ as ‘red herrings’”; and “consistently

asserted that the manner in which these defendants committed

their crimes, such as the fact that one had allegedly worked as a

‘hitman’ or another had gone on a ‘burglary spree,’ proved that

they were not ‘mentally retarded.’” Compl. 1, 5. The

Complaint also suggests that Judge Jones was insensitive in

using the term “mental retardation,” as it is “outdated” and

“generally replaced by ‘[i]ntellectually [d]isabled.’” Id. at 5

n.10. Through these comments, the Complaint concludes,

“Judge Jones expressed extreme bias against such persons, and

against claims of intellectual disability as a whole.” Id. at 5; see

id. at 8-10.

Judge Jones strongly denies that she said “it is a ‘disservice’

to the mentally retarded to exempt them from the death penalty.” 

Jones Recollections 21; Jones Hr’g Tr. 9. Witnesses diverge as

to whether they specifically recall Judge Jones using those

words. Most do not remember either way. A few recall her

using the word “disservice” in that context, while others state

that they do not and would remember if she had. See Special

Counsel Report 23-24. In the absence of a recording, we are

unable to find by a preponderance that the judge made that

statement.

We are also unable to find by a preponderance that Judge

Jones literally expressed “disgust” at the use of mental

retardation as a defense in capital cases, or said that capital

defendants who raise such claims “abuse the system.” No

affiant or witness reports that she spoke those words, and it
30

appears that in using them the Complaint merely intended to

convey that she used a “dismissive” tone, Compl. 5, rather than

to report particular words. As we discuss in more detail in Part

V.H, the absence of a recording of the lecture makes it

impossible for us to determine the tone the judge employed by

a preponderance of the evidence.

Judge Jones does acknowledge that claims of mental

retardation may have been one of the “red herrings” she

addressed in her lecture, by which she says she meant that, in

her experience, very few such claims succeed. Special Counsel

Report 22. But she did not mean to suggest that it is not “a

defense absolute to capital punishment” because the “Supreme

Court has said it is.” Jones Hr’g Tr. 15-16. We have no doubt

that, if a judge were to say that all claims of intellectual

disability are invalid or abusive, or were to “express[] disgust at

the use of mental retardation as a defense in capital cases,” there

would be good reason to doubt that judge’s ability to decide

such cases impartially. But no affiant or witness reported that 12

Judge Jones made such a categorical statement or defined “red

herring” in that way. And the way the judge reports that she did

intend the term -- as describing a claim that in her experience

rarely succeeds -- does not itself indicate bias or impartiality.

See Canon 3A(3), cmt. (explaining that “[t]he duty to be 12

respectful includes the responsibility to avoid comment or behavior

that could reasonably be interpreted as . . . prejudice or bias”); id.

(“The duty under Canon 2 to act in a matter that promotes public

confidence in the integrity and impartiality of the judiciary applies to

all of the judge’s activities . . . .”). Comments reflecting bias against

a class of litigants “or a particular legal claim or theory” are cause for

recusal under 28 U.S.C. § 455. Jenkins v. McCalla Raymer, LLC, 492

F. App’x 968, 970 (11th Cir. 2012); see SEC v. Loving Spirit Found.

Inc., 392 F.3d 486, 493-94 (D.C. Cir. 2004); United States v.

Microsoft Corp., 253 F.3d 34, 109, 114-16 (D.C. Cir. 2001); Hathcock

v. Navistar, 53 F.3d 36, 41 (4th Cir. 1995).
31

Judge Jones also acknowledges she said that the manner in

which some defendants committed their crimes raised doubts

about whether they were actually intellectually disabled. For

example, she discussed the case of Paul Hardy, whom she

described as a “hit man” for a “drug dealing New Orleans

policeman.” Special Counsel Report 22 & n.110, 37 (referring

to United States v. Hardy, 499 F. App’x 388, 389 (5th Cir.

2012)); Jones Recollections 15. “It seemed odd to me,” she

said, “that a professional killer could be mentally retarded.” 

Special Counsel Report 22, 37. In so saying, Judge Jones was

restating a view that she had previously expressed in her judicial

opinions. In Chester v. Thaler, she noted that the Supreme

Court’s Atkins decision had stated that “‘[m]entally retarded

persons . . . by definition . . . have diminished capacities to

understand and process information,’” and “‘often act on

impulse rather than pursuant to a premeditated plan.’” 666 F.3d

340, 350 (5th Cir. 2011) (quoting Atkins, 536 U.S. at 318). 

Judge Jones’ argument in her discussion of the Hardy example

mirrored her conclusion in Chester that a defendant who “did

not act on an impulse, but rather ‘pursu[ed] a premeditated

plan,’” did not have “diminished mental capacity.” Id. at 350. 

Such reiteration of her previously expressed judicial opinion

does not constitute misconduct. Cf. Liteky v. United States, 510

U.S. 540, 555 (1994) (holding that “opinions formed by [a]

judge on the basis of . . . prior proceedings, do not constitute a

basis for a bias or partiality motion”).

Finally, there is no dispute that Judge Jones used the term

“mentally retarded,” rather than “intellectually disabled,”

throughout her lecture. The use of that term, however, does not

raise a question about her impartiality. As the passage from

Atkins quoted above makes clear, the Supreme Court used the

same term in that case. See 536 U.S. at 318. So did all other

extant Supreme Court opinions at the time of Judge Jones’
32

lecture. And so, too, did “both the lawyers and the Justices” 13

during this Term’s oral argument in Hall v. Florida. See Lyle

Denniston, Argument Analysis: When Simplicity Won’t Do,

SCOTUSBLOG (Mar. 3, 2014, 2:29 PM). Indeed, it was not until

May of 2014 that the Supreme Court abandoned its use of the

term. See Hall v. Florida, 134 S. Ct. 1986, 1990 (2014)

(“Previous opinions of this Court have employed the term

‘mental retardation.’ This opinion uses the term ‘intellectual

disability’ to describe the identical phenomenon.”).

C. Comments Regarding Claims of Innocence 

The Complaint alleges that Judge Jones was “very

dismissive of claims of innocence,” that she viewed “even

innocence [a]s another ‘red herring,’” and that she “did not take

seriously the possibility that innocent people had been sentenced

to death.” Compl. 6. According to the Complaint, the judge

“said that reversals of those who were allegedly innocent were

really based on ‘technicalities,’ not innocence,” and that “just as

many innocent people [were] killed in drone strikes as innocent

people executed for crimes.” Id.

To the extent the complainants use the term “dismissive” to

describe Judge Jones’ tone or demeanor, we are again unable to

reach any determination for the reasons discussed below. See

See, e.g., Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012) 13

(“[W]e have held that imposing the death penalty . . . on mentally

retarded defendants[] violates the Eighth Amendment.”); Kennedy v.

Louisiana, 554 U.S. 407, 420 (2008) (same); see also, e.g., Woodward

v. Alabama, 134 S. Ct. 405, 409 n.8 (2013) (Sotomayor, J., dissenting

from denial of certiorari). No doubt because the relevant precedents

use the term, so too did the petitioner in Chester v. Thaler. See

Petition for Writ of Certiorari, Chester v. Thaler (No. 11-1391), 2012

WL 1852055. 
33

infra Part V.H. Judge Jones does not recall, as do few if any

witnesses, whether she labeled “actual innocence” a “red

herring.” Special Counsel Report 28-29. It was not one of the

“red herrings” listed in her pre-lecture notes. Id. at 29. She does

recall using an analogy to drone strikes in rebuttal to the

argument “that the death penalty kills innocents.” Id. at 28; see

id. at 29 & n.144; but see Jones Hr’g Tr. 16. She emphasized to

the Special Counsel and the Special Committee, and therefore

likely did so to the law school audience, that she personally had

not seen a death row exoneration due to actual innocence; rather,

those exonerations had followed successful legal challenges that

did not disprove factual guilt. Special Counsel Report 28-29;

Jones Hr’g Tr. 22-23 (“I said in my experience, the question of

innocence of the crime is rarely at issue in the cases that reach

the Fifth Circuit.” (emphasis added)); see Jones Recollections 21

(“[I]n my experience the fact that the defendants had committed

the crimes with which they were charged was rarely in doubt.”

(emphasis added)). That is the context in which many attendees

thought Judge Jones used the term “technicalities.” Special

Counsel Report 29. In light of the witness interviews and

affidavits, we agree with the Special Counsel that it is

implausible that Judge Jones labeled actual innocence itself as

a “technicality.” Id. at 29 n.148. 

Some of the affidavits attached to the Complaint aver that

Judge Jones labeled as “technicalities” claims made by

defendants, under Brady v. Maryland, 373 U.S. 83 (1963), that

the prosecution had suppressed materially exculpatory evidence. 

See Student B Aff. ¶ 30; Student C Aff. ¶ 16; Student E Aff.

¶ 15; Student F Aff. ¶ 12. But the Complaint does not itself

make that accusation. Nor does Mr. Bookman. Special Counsel

Report 29; see Bookman Aff. ¶ 30 (stating that Judge Jones did

not directly respond to a question about whether Brady

violations were “technicalities,” and instead “said she did not

know of any case out of Texas in which a prosecutor had ever
34

done anything to try to convict someone intentionally who was

not actually guilty”). Judge Jones denies that she dismissed

Brady claims as “technicalities.” Special Counsel Report 28

(citing Jones Recollections 21). The evidence on this point is

conflicting, id. at 28-29, and we cannot find by a preponderance

of the evidence that she did so. 

Regardless of whether Judge Jones is correct in her

empirical observation that few innocent defendants have been

subject to the death penalty, she did not say or imply that she

would or does ignore either actual innocence claims or Brady

violations in her work as a judge. Rather, the record before us

indicates that she expressed an understanding that she said was

gleaned from her own prior judicial experience. Considering

Judge Jones’ comments in context, and given the paucity of

evidence regarding the exact phrasing of her remarks, we find

no misconduct. Cf. Liteky, 510 U.S. at 551, 555.

D. Comments Regarding Foreign Nationals,

 Foreign Justice, and International Standards 

The Complaint alleges that Judge Jones “denigrated the

system of justice in the nation of . . . Mexico, Mexican

Nationals, and the use of international standards in capital

cases.” Compl. 6. It charges that she said “it was an ‘insult’

when United States courts looked to the laws of another country

such as Mexico,” that a “Mexican National would rather be on

death row in the United States than in a Mexican prison,” that

Mexico does not provide its “own citizens with the kind of legal

protections [a] person would get in the United States,” and

“again characterized as a ‘red herring’ the claims of foreign

nationals and the use of ‘international standards.’” Id. at 6

(emphasis omitted).
35

As best we can reconstruct from the evidence before us, the

Complaint’s references are to three points that Judge Jones made

during her remarks: (1) that she disapproved of looking to the

law of foreign countries when interpreting the meaning of

provisions of the United States Constitution; (2) that she thought

a defense raised by foreign nationals, based on the government’s

failure to notify them of the right to consult with consular

officials, was a “red herring”; and (3) that she thought American

courts provide defendants greater protections than those of other

countries and that conditions in American prisons are far better

than those in Mexican prisons. None of these points constitutes

a basis for a finding of misconduct. 

The first point is the subject of a spirited debate among the

Justices of the Supreme Court, and it cannot constitute 14

Compare Roper v. Simmons, 543 U.S. 551, 578 (2005) 14

(Kennedy, J.) (“The opinion of the world community, while not

controlling our outcome, does provide respected and significant

confirmation for our own conclusions.”); id. at 604 (O’Connor, J.

dissenting) (“I disagree with Justice Scalia’s contention . . . that

foreign and international law have no place in our Eighth Amendment

jurisprudence.”); and Knight v. Florida, 528 U.S. 990, 995-96 (1999)

(Breyer, J., dissenting from denial of certiorari) (“[T]his Court has

long considered as relevant and informative the way in which foreign

courts have applied standards roughly comparable to our own

constitutional standards in roughly comparable circumstances.”), with

Lawrence v. Texas, 539 U.S. 558, 598 (2003) (Scalia, J., dissenting)

(“The Court’s discussion of these foreign views . . . is therefore

meaningless dicta. Dangerous dicta, however, since ‘this

Court . . . should not impose foreign moods, fads, or fashions on

Americans.’” (quoting Foster v. Florida, 537 U.S. 990, 990 n.* (2002)

(Thomas, J., concurring in denial of certiorari))); Atkins, 536 U.S. at

324-25 (Rehnquist, C.J., dissenting) (“I fail to see, however, how the

views of other countries regarding the punishment of their citizens

provide any support for the Court’s ultimate determination [regarding
36

misconduct for an appellate judge to choose one side or the

other. See In re Charges of Judicial Misconduct, 404 F.3d 688,

699 (2d Cir. Jud. Council 2005) (holding that “the closely

divided vote in the Bush v. Gore decision itself . . . [shows that]

reasonable people disagree over the soundness of the opinions

in that case,” and hence that a judge’s public disagreement with

the decision did not constitute incompetence or misconduct). 

Indeed, one of the affiants himself said: “I am familiar with the

conservative critique on the use of international standards in

American court decisions, so it did not surprise me that Judge

Jones shared that view.” Student B Aff. ¶ 32.

The second point expresses the views of a majority of the

Supreme Court. As such, Judge Jones’ contention that a 15

defense based on a defendant’s inability to consult with consular

officials has been unlikely to succeed cannot be considered

misconduct.

As to the third point, no rule or canon bars a judge from

stating what she perceives to be the advantages of her own

country’s legal system over that of others. The notes of one

witness (adopted in Mr. Bookman’s affidavit) say that Judge

the Eighth Amendment].”).

See Medellin v. Texas, 554 U.S. 759, 760 (2008) (stating that 15

the Vienna Convention on Consular Relations “does not itself have the

force and effect of domestic law sufficient to set aside [a] judgment or

the ensuing sentence”); Sanchez-Llamas, 548 U.S. at 337 (holding that

suppression of a defendant’s statement “is not an appropriate remedy

for a violation” of the Vienna Convention, “and that a State may apply

its regular rules of procedural default to [such] claims”); Breard, 523

U.S. at 377 (holding that “it is extremely doubtful that [a] violation [of

the Vienna Convention] should result in the overturning of a final

judgment of conviction without some showing that the violation had

an effect on the trial”).
37

Jones went further, suggesting that Ramiro Ibarra, a Mexican

national and defendant in one of her cases, would rather be in

prison in the United States than Mexico, even if he were not

subject to the death penalty there. See Assistant Federal

Defender Summary 3; Bookman Aff. ¶ 32. But Judge Jones

denies saying that, see Special Counsel Report 30, and we

cannot find by a preponderance that she did.

 Finally, and notwithstanding the allegation made in the

Complaint, no affiant or other witness stated that Judge Jones

denigrated Mexican nationals (or Mexican-Americans)

themselves. If she had, such comments would constitute

misconduct. Cf. In re Complaint of Judicial Misconduct, __

F.3d __, 2013 WL 8149446, at *4 (adopting Ninth Circuit

Judicial Council’s order finding that “emails that ‘showed

disdain and disrespect for . . . Hispanics, especially those who

are not in the United States legally,’” violated the Code and

constituted misconduct). But since there is no evidence that 16

she did, we find no grounds for concluding that Judge Jones’

remarks cast doubt on her own (or the Judiciary’s) ability to be

impartial toward individuals of foreign nationality who come

before the court.

E. Discussion of Religion as a 

Justification for the Death Penalty 

The Complaint charges that “Judge Jones advocated her

personal religious views as a basis for justifying the death

See also Liteky, 510 U.S. at 555 (stating that a remark alleged 16

to have been made against German-American defendants by a judge

in a World War I espionage case, to the effect that GermanAmericans’ “hearts are reeking with disloyalty,” is an example of a

judicial remark that “reveal[s] such a high degree of . . . antagonism

as to make fair judgment impossible”).
38

penalty.” Compl. 7. It alleges she said that “the death penalty

had Biblical origins, in Deuteronomy,” and that “a killer is only

likely to make peace with God and the victim’s family in that

moment when the killer faces imminent execution, recognizing

that he or she is about to face God’s judgment.” Id. “In support

of that justification” for the death penalty, the Complaint

continues, “Judge Jones cited an article that she said her

husband had found on the Internet, entitled ‘Hanging

Concentrates the Mind’ . . . , which she said discussed the

Vatican’s perspective on capital punishment while executions

were occurring within the Vatican’s jurisdiction.” Id.17

The remarks at issue were part of Judge Jones’ discussion

of the question, “Is the death penalty morally justifiable?” 

Although there is uncertainty regarding the precise words she

used, there is general agreement (and Judge Jones does not

dispute) that she made comments along the lines described in the

previous paragraph. Special Counsel Report 25-27; Jones

Recollections 5-6. Her purpose, she explained, was to set out

what she regards as the Biblical and Christian justifications for

the death penalty. See Jones Recollections 5. Although

attendees generally said that the judge was unclear as to whether

she was expressing a personal belief or simply describing

potential justifications, they generally understood her underlying

message to be one of personal support for the death penalty. 

Special Counsel Report 27. While Judge Jones’ recollection on

the point was also uncertain, Jones Recollections 6 (saying that

she noted what “some would say”), she told the Special Counsel

that it was possible that she had endorsed the above ideas,

Special Counsel Report 26. See also Jones Recollections 5

The article appeared February 8, 2013 in Crisis magazine, 17

which describes itself as “a voice for the faithful Catholic laity.” See

About Us, CRISIS MAGAZINE, http://www.crisismagazine.com/aboutus.
39

(“The Book of Deuteronomy in the Bible prescribes death as the

punishment for murder. From that standpoint, its morality

should not be in doubt. . . . I am a Christian who adheres to the

tradition.”). She made clear to the Committee, however, that she

“would never seek to issue a judgment applying the death

penalty to effectuate that purpose.” Jones Hr’g Tr. 14. “I was

talking about the Western tradition and not my personal view

about how I would decide a death penalty case.” Id. at 15.

It is not unusual for serious discussions of the morality of

the death penalty to address religious arguments on the subject. 

Criminal law texts and law review articles often do so. So, too, 18

have other judges, including some with views opposite from

those expressed by Judge Jones. Such a discussion generally 19

See, e.g., SANFORD H. KADISH & STEPHEN J. SCHULHOFER,

18

CRIMINAL LAW AND ITS PROCESSES 520-21 (6th ed. 1995); RANDALL

COYNE &LYN ENTZEROTH,CAPITAL PUNISHMENT AND THE JUDICIAL

PROCESS 85-86 (1994); Davison M. Douglas, God and the

Executioner: The Influence of Western Religion on the Use of the

Death Penalty, 9 WM. & MARY BILL RTS. J. 137, 137-38 (2000)

(“[P]ublic debates about the death penalty and its use invariably invite

considerations of what our religious traditions teach us about the

morality of capital punishment.”); Robert F. Drinan, Religious

Organizations and the Death Penalty, 9 WM. & MARY BILL RTS. J.

171 (2000). 

See Carolyn Dineen King, Speech at Red Mass at Corpus 19

Christi Cathedral (Oct. 4, 2006) (stating that “Jesus has told us that

vengeance is to play no part in our lives, that forgiveness is what we

should aspire to,” and that “[t]he Catholic bishops have recently issued

a call to the Catholic community . . . to join in the Catholic Campaign

to End the Use of the Death Penalty . . . as a moral commitment,” but

prefacing her remarks by “mak[ing] . . . very clear” that “[m]y

religious views play no role, and in my view, can play no role in the

judgments I am called upon to make as a judge”); In re Inquiry

Concerning a Judge, William C. Gridley, 417 So. 2d 950, 954-55 (Fla.
40

falls within the Code’s authorization to “speak, write, lecture,

and teach on both law-related and nonlegal subjects.” Canon 4;

see Comm. on Codes of Conduct, Advisory Op. 93 (2009).

The question of concern, however, is whether such

expression would lead “reasonable minds, with knowledge of all

the relevant circumstances disclosed by a reasonable inquiry,

[to] conclude that the judge’s . . . impartiality . . . is impaired.” 

Canon 2A, cmt. In essence, the question is whether the judge’s

statements would cause a reasonable person to doubt the judge’s

ability to set aside her religious views and follow the law. Judge

Jones states that she made clear during the lecture that she

understood the difference between her personal views and her

obligations as a judge. See Jones Recollections 5 (stating that

she said: “I am a Christian who adheres to the tradition. As a

judge, I follow the law.”). The affiants supporting the

Complaint confirm that she did in fact emphasize this point. See

Student C Aff. ¶ 5 (stating Judge Jones said that, “[a]lthough she

personally supported the death penalty, she understood her job

as applying the law”); Student F Aff. ¶ 5 (same); see also

Bookman Aff. ¶ 4 (“Judge Jones noted that . . . , while she was

personally a supporter of the death penalty, her job as a judge

obliged her to apply whatever legislation the legislature

enacted.”); Student B Aff. ¶ 5 (same). Given that preface to her

remarks, we do not find a violation of the misconduct rules. Cf.

United States v. Ciavarella, 716 F.3d 705, 722-23 (3d Cir. 2013)

(holding that recusal was unwarranted where, although a judge

expressed his personal opinion of a defendant outside of court,

“he also expressly stated that his personal opinion would not

guide his rulings”); In re Inquiry Concerning a Judge, Gridley,

1982) (holding that a Florida judge’s statements, “express[ing] his

views on Christian forgiveness, and . . . against capital punishment,”

did not constitute ethical violations because the judge “made it clear

that he was duty bound to follow the law and that he would do so”). 
41

417 So. 2d at 954-55 (holding that a Florida judge’s statements,

“express[ing] his views on Christian forgiveness, and . . . against

capital punishment,” did not constitute an ethical violation

because the judge “made it clear that he was duty bound to

follow the law and that he would do so”).

F. Criticism of Federal Death Penalty Prosecutions

The Complaint alleges that Judge Jones “criticized the

conduct of Justice Department prosecutors who handle federal

death penalty cases, . . . accusing them of treating the death

penalty process as an ‘elaborate game’ and using methods that

were wasteful of taxpayer dollars.” Compl. 10. Those remarks

appear to have come under the lecture’s topic heading of, “Is the

death penalty working?” 

Whether or not she used the quoted language, Judge Jones

states that she did criticize federal prosecutions, saying that she

told the audience the procedures for charging and imposing the

death penalty were “incredibly convoluted.” Special Counsel

Report 31; see Jones Recollections 17 n.22 (“I do not recall

whether I referred to the federal death penalty process, in

shorthand summary, as a ‘game.’ . . . I was questioning the

reasonableness and cost-effectiveness of DOJ procedures.”);

Jones Hr’g Tr. 8 (“I did criticize the Department of Justice for

pursuing capital cases in a very inefficient way.”). She stressed

that, while such prosecutions “cost[] quite a bit of money,” the

conviction rate is “only about fifty percent,” and “there have

been only two executions of federal defendants since the 1990s.” 

Jones Recollections 17-18. The notes of one member of the

audience, which are consistent with the other evidence, state that

Judge Jones said she had been astonished to learn that many

federal prosecutors charge crimes as death-penalty eligible,

requiring district courts to appoint two highly trained defense

lawyers, and that thereafter the Justice Department often decides
42

not to pursue the death penalty. Special Counsel Report 32; see

also Jones Hr’g Tr. 20-21; Bookman Aff. ¶ 23.

The commentary to Canon 4 states: “[A] judge is in a

unique position to contribute to the law, the legal system, and

the administration of justice, including revising substantive and

procedural law and improving criminal and juvenile justice. To

the extent that the judge’s time permits and impartiality is not

compromised, the judge is encouraged to do so . . . .” Canon 4,

cmt. As the Judicial Council of the Ninth Circuit explained:

Engaging in such law-related activities -- including

speeches that comment on current events and legal

developments -- is permitted not only because judges

are citizens, but because they are particularly

knowledgeable on such topics. Their speech may thus

enhance the public discourse and lead to a more

informed citizenry.

In re Complaint of Judicial Misconduct, 632 F.3d 1289, 1289

(9th Cir. Jud. Council 2011); see id. (holding that a judge’s

speeches about “the direction of immigration law and a

campaign finance controversy” did not violate the Code of

Conduct or constitute misconduct).

Judge Jones’ critique of the manner in which the Justice

Department prosecutes death penalty cases falls well within this

permitted scope of activity. Indeed, a committee of the Judicial

Conference of the United States has recently issued a report

citing similar problems with such prosecutions, albeit from a

different perspective. Of course, the Code’s approval of such 20

See COMM. ON DEFENDER SERVICES, REPORT OF THE JUDICIAL 20

CONFERENCE 11 n.7 (Sept. 2013) (“In the vast majority of deatheligible cases, the local U.S. attorney does not recommend, nor does
43

public comment comes with the caveat that it not “detract from

the dignity of the judge’s office, interfere with the performance

of the judge’s official duties,” or “reflect adversely on the

judge’s impartiality.” Canon 4. Judge Jones’ general criticism

of federal prosecutions, made without reference to particular

prosecutors or counsel, did not contravene that admonition.

G. Criticism of the United States Supreme Court

The Complaint alleges that Judge Jones “improperly

expressed ‘contempt’ for the United States Supreme Court rules,

‘generally disparage[d]’ the Supreme Court, [and] was

‘dismissive of the Supreme Court’s death penalty decision[s]

regarding juveniles and the mentally retarded.’” Compl. 10. 

More specifically, the affidavits attached to the Complaint allege

that Judge Jones said, among other things, that “the Supreme

Court went on a real ‘judicial law-making binge’” in the 1970s,

Bookman Aff. ¶ 20; that “the whole area of law was like a ‘zoo’

throughout the 1980’s,” id.; and that the Court “went on a ‘new

spree’ in the early 2000’s ‘micromanaging’ the death

penalty . . . [through] Atkins [v. Virginia, 536 U.S. 304 (2002),]

and Roper [v. Simmons, 543 U.S. 551 (2005)],” id. ¶ 21. She

further said, an affiant alleges, that the Supreme Court’s “next

attempt at meddling with the death penalty will come by

‘back-dooring’ through the Martinez [v. Ryan, 132 S. Ct. 1309

(2012),] case the right to counsel in post-conviction

proceedings.” Bookman Aff. ¶ 21. See also, e.g., Student B

Aff. ¶ 20; Student C Aff. ¶ 10.

the U.S. Attorney General approve, seeking the death penalty, yet

defense counsel and the judiciary incur substantial costs from the time

of indictment on a death-eligible charge until the Attorney General

makes the ‘non-death’ decision, which can take place years after the

indictment.”).
44

Judge Jones does not dispute that she sharply criticized the

Supreme Court’s death penalty jurisprudence. The critique

came as part of her remarks regarding the question, “Is capital

punishment working?” Special Counsel Report 33. As she

explains:

Regarding constitutionality, I said that as an advocate

of constitutional interpretation that is based on its

original meaning, the question is settled for me by the

fact that capital punishment is mentioned several times

in the United States Constitution. The Framers

believed the death penalty to be constitutional, and I

therefore do not personally believe that the Supreme

Court should be allowed to conclude that “evolving

standards of decency” render this punishment “unconstitutional.”

Jones Recollections 3. She says that she “probably did” use the

phrase “judicial law making binge” to characterize the Supreme

Court’s early death penalty jurisprudence. Special Counsel

Report 33; see Jones Hr’g Tr. 17-18. She says that, “[i]f [she]

said the process was a ‘zoo,’” she was referring to the

confluence of “the rapid doctrinal changes; the intricacies of

habeas law; and the plethora of last-minute petitions.” Jones

Recollections 12. Although she does not recall whether she

used the phrase “new spree” to refer to the more recent cases of

Atkins and Roper, she says that she may have used the term

“micromanaging” to refer to those cases, and may have used the

term “back-dooring” to refer to the “potential importation of the

right to counsel in habeas through” Martinez and the thenpending case of Trevino v. Thaler, 133 S. Ct. 1911 (2013). 

Special Counsel Report 33; see Jones Hr’g Tr. 18-20. In the

course of her critique, Judge Jones recalls relating a quotation,

which she attributed to Justice White, referring to the “Court’s

‘death penalty jurisprudence, if you can call it that.’” Jones
45

Recollections 11-12; see also Bookman Aff. ¶ 21. She also

recalls saying, as the affiants allege, that the “the Supreme Court

had managed to effect in this area what it had not done for

abortion -- making it ‘safe, legal and rare.’” Special Counsel

Report 33; Jones Recollections 18; Jones Hr’g Tr. 20; see also

Bookman Aff. ¶ 22.

But just as there is no dispute that Judge Jones criticized the

Supreme Court, there is likewise no dispute that merely

criticizing the Court does not constitute judicial misconduct. 

See, e.g., In re Charges of Judicial Misconduct, 404 F.3d at 699

(finding that a judge’s public critique of Bush v. Gore did not

raise an issue of incompetence or misconduct). As noted above,

the Code of Conduct encourages judges to “speak, write, lecture,

and teach on both law-related and nonlegal subjects,” Canon 4,

and “to contribute to . . . revising substantive and procedural law

and improving criminal and juvenile justice,” Canon 4, cmt. 

This authorization extends to commenting on “substantive legal

issues.” Comm. on Codes of Conduct, Advisory Op. No. 93, at

3 (2009). As Advisory Opinion 93 states: “The evolution and

exposition of the law is at the core of a judge’s role. Judges,

therefore have the ability to make a unique contribution to

academic activities such as teaching and scholarly writing,

which similarly serve to advance the law.” Id.

It would be all but impossible for a judge to urge changes

in the course of the law, or even to comment on substantive

legal issues, without being able to reference and criticize

decisions of the Supreme Court. Not surprisingly, then, there is

a long tradition of lower court judges criticizing the Court on

issues of constitutional law. Indeed, there is a long tradition of 21

See, e.g., J. HARVIE WILKINSON III, COSMIC CONSTITUTIONAL 21

THEORY: WHY AMERICANS ARE LOSING THEIR INALIENABLE RIGHT

TO SELF-GOVERNANCE 57-58 (2012) (criticizing District of Columbia
46

judges specifically criticizing the Court’s death penalty

jurisprudence, including much criticism from the opposite

perspective of Judge Jones. And as Mr. Bookman 22

acknowledged during his testimony, there is no objective line we

v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561

U.S. 742 (2010)); Patricia M. Wald, Two Unsolved Constitutional

Problems, 49 U. PITT. L. REV. 753, 757 (1988) (arguing that the

distinction between limits on campaign contributions and expenditures

in Buckley v. Valeo, 424 U.S. 1 (1976), “severely impedes a coherent

or comprehensive electoral finance law”); J. Skelly Wright, Politics

and the Constitution: Is Money Speech?, 85 YALE L.J. 1001, 1005

(1976) (criticizing Buckley v. Valeo for “misconceiv[ing] the First

Amendment” and “accept[ing] far too narrow a conception of political

dynamics in our society”); Henry J. Friendly, “Some Kind of

Hearing,” 123 U. PA. L. REV. 1267, 1316-17 (1975) (arguing that in

“the mass justice area the Supreme Court has yielded too readily to the

notions that the adversary system is the only appropriate model . . . ,

and consequently has been too prone to indulge in constitutional

codification,” and criticizing Goss v. Lopez, 419 U.S. 565 (1975));

Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on

Criminal Judgments, 38 U. CHI. L. REV. 142, 160-62 (1970)

(criticizing the Court’s decision, in Kaufman v. United States, 394

U.S. 217 (1969), that a claim of unconstitutional search and seizure is

cognizable in a 28 U.S.C. § 2255 proceeding).

See, e.g., William Fletcher, Our Broken Death Penalty, James 22

Madison Lecture, NYU Law School (Oct. 15, 2013), available at

http://www.law.nyu.edu/news/Madison-Lecture-2013; Rosemary

Barkett, Judicial Discretion and Judicious Deliberation, 59 FLA. L.

REV. 905, 926-28 (2007); Carolyn Dineen King, Speech at Red Mass

at Corpus Christi Cathedral (Oct. 4, 2006); Stephen Reinhardt, The

Supreme Court, The Death Penalty, and the Harris Case, 102 YALE

L.J. 205, 205, 215 (1992). See also, e.g., Ruth Bader Ginsburg,

Speech at the U.C. Hastings College of the Law (Sept. 15, 2011);

William J. Brennan, Jr., Constitutional Adjudication and the Death

Penalty, 100 HARV. L. REV. 313, 331 (1986).
47

could draw that would permit a judge to criticize the Court from

one direction and not from the other. Bookman Hr’g Tr. 4-8.

There is no doubt that Judge Jones used sharp language in

her critique. So, too, did some of the judges cited above. See

supra notes 19, 21, 22. But the question before us is not

whether the members of this Committee would have used

similar language; rather, the question is whether that language

crossed a line that would denigrate public confidence in the

judiciary’s integrity and impartiality. See Canons 1, 2A, 3. That

line is crossed when a judge not only criticizes the Court, but

suggests an intention not to follow its holdings. In a hierarchical

legal system like ours, crossing that line telegraphs an intent to

defy the rule of law. There is no evidence, however, that Judge

Jones crossed that line during her lecture at the University of

Pennsylvania. To the contrary, as we noted above, she told the

audience that, whatever her views, “she understood her job as

applying the law.” Student C Aff. ¶ 5; Student F Aff. ¶ 5

(same); Jones Recollections 2 (“I noted that as a federal judge,

it is my duty to apply the law, regardless what I may think of

it.”); Jones Hr’g Tr. 6 (“More than once I told the audience that

my duty as a federal judge is to follow the law articulated by the

Supreme Court.”). Accordingly, we do not find misconduct in

Judge Jones’ critique of the Supreme Court’s death penalty

jurisprudence. Cf. Ciavarella, 716 F.3d at 722-23 (holding that

recusal was unwarranted where, although a judge expressed his

personal opinion of a defendant outside of court, “he also

expressly stated that his personal opinion would not guide his

rulings”); In re Sherwin Williams, 607 F.3d 474, 478 (7th Cir.

2010) (finding that any “reasonable person would understand”

that a judge’s criticism of law he was “obligated to follow” did

not jeopardize his impartiality).
48

H. Tone of the Comments

In addition to the content of Judge Jones’ remarks, the

Complaint alleges that they were delivered with “disgust,”

“outrage,” or “contempt,” Compl. 5, 6, 8, and characterizes them

as “dismissive,” “personal,” “emotional,” “disrespectful,”

“hostile,” and “inflammatory,” id. at 2, 5, 6, 8, 10. The

Complaint further alleges that Judge Jones “lost her composure”

during the question-and-answer period with Mr. Bookman that

followed the lecture. Id. at 3. And some of the affiants aver

that, “[b]y the end of the question and answer period, . . . [s]he

became combative, her tone of voice and demeanor were angry

and defensive, and the atmosphere in the room was tense.” 

Student F Aff. ¶ 15; see Student D Aff. ¶ 15; Student E Aff.

¶ 17. This kind of “hostile rhetoric,” the Complaint charges,

“severely undermines ‘public confidence’ in the federal

judiciary,” in violation of the Judicial-Conduct Rules and

Canons 1, 2, and 3. Compl. 7-10.

As we have already indicated, in the absence of a recording

of the lecture, we are unable to determine the nature of Judge

Jones’ tone or demeanor and so are unable to make a finding

based on a preponderance of the evidence. Some witnesses

found fault with the judge’s tone, characterizing it as does the

Complaint. See Special Counsel Report 35-36 & n.162; Student

B Aff. ¶¶ 12, 35; Student C Aff. ¶ 17; Student D Aff. ¶ 15;

Student E Aff. ¶¶ 6, 14, 17; Student F Aff. ¶¶ 7, 15. But others

did not. See Special Counsel Report 35-36 & nn.162, 166;

Student Decl. ¶ 27 (“I would describe Judge Jones’ tone of voice

and deportment in public as professional, formal, and serious.”). 

There does appear to be general agreement that the heat in the

room rose in an exchange between the judge and Mr. Bookman

during the question-and-answer period. But there is

considerable disagreement as to which of the two started the

fire. Special Counsel Report 35-36 & nn.168, 169; id. at 46 &
49

n.220. Mr. Bookman restricted his own affidavit to the

substance of the judge’s remarks and made no allegations about

her tone.

In light of these conflicting reports, and in the absence of a

recording that might resolve them, a preponderance of the

evidence does not support a finding that Judge Jones’ tone or

demeanor constituted misconduct under the Judicial-Conduct

Rules.

VI

Finally, we address the Complaint’s allegation that, in the

course of her lecture, “Judge Jones discussed at some length

individual cases.” Compl. 6. This, the Complaint charges,

violated Canon 3A(6), which states that “[a] judge should not

make public comment on the merits of a matter pending or

impending in any court.” 

The Complaint focuses on four cases: “the [Ramiro] Ibarra

case, which was pending in her court at the time of the lecture”;

the “[Larry] Swearingen and [Marcus] Druery” cases, which

“were pending in the state courts”; and the case of Elroy

Chester, who “was scheduled for execution at the time of her

lecture.” Compl. 9. As the Complaint notes, “Judge Jones

wrote the panel opinions in the Ibarra, Chester, and Druery

cases,” and “was on the Swearingen panel.” Id. In the context

of discussing the Ibarra case, Judge Jones also acknowledges

discussing a case involving Carlos Trevino. Jones Hr’g Tr. at

26. Judge Jones denies discussing the merits of any pending

case, stating that, with respect to “cases that had been decided

in” the Fifth Circuit, she simply “related the facts of the crimes

underlying the convictions” and “described the disposition of

issues raised like Atkins.” Jones Recollections 23. Her purpose,
50

she said “was to show how extraordinarily heinous these crimes

are.” Jones Hr’g Tr. 7.23

The Complaint also avers that Judge Jones discussed the Betty 23

Lou Beets, Walter Bell, and Larry Hatten cases. Compl. 6. It does not

allege that those remarks transgressed Canon 3A(6)’s proscription

against commenting on pending or impending matters, and an

extensive docket search has disclosed no such matters. See Special

Counsel Report 39-43; Special Counsel Case Status Supplement 3-4. 

Beets had been executed 13 years before the lecture. Bell was serving

a life sentence in Texas, his death sentence having been vacated by

state courts in 2004, with no pending or impending matters. Judge

Jones authored an opinion affirming the district court’s denial of

Hatten’s habeas petition in June 2009; the Supreme Court denied

certiorari in February 2010.

As noted in Part V.B above, Judge Jones also acknowledges

discussing another case -- that of Paul Hardy, which the Complaint

does not mention by name but does mention by description (a case

involving a “hitman,” Compl. 5). The Complaint does not allege that

this discussion violated Canon 3A(6), and we conclude that it does

not. In 1999, the Fifth Circuit had vacated Hardy’s death sentence and

remanded his case for resentencing. United States v. Causey, 185 F.3d

407, 411 (5th Cir. 1999). On December 6, 2012, a Fifth Circuit panel

that did not include Judge Jones affirmed Hardy’s subsequent life

sentence. United States v. Hardy, 499 F. App’x 388, 390-91 (5th Cir.

2012). The mandate issued on December 28, 2012; no petition for

rehearing en banc was filed. On April 3, 2013, after Judge Jones’

lecture, Hardy filed a petition for certiorari in the Supreme Court,

which was denied on October 7, 2013. Hardy v. United States, 134 S.

Ct. 60 (2013). Although Hardy’s case may have been “impending” in

the Supreme Court and “pending or impending” in the Fifth Circuit for

reasons discussed below, see infra Part VI.A, the sole matter at issue

at that point in the litigation was Hardy’s challenge to the sufficiency

of the indictment to support a sentence of life imprisonment. See

Hardy, 499 F. App’x at 390-91. There is no suggestion that Judge

Jones discussed that issue during her lecture. 
51

As noted in Part II, notwithstanding the general prohibition

on commenting on the merits of pending or impending matters,

the Code contains an exception for offering such comments in

the context of “scholarly presentations made for purposes of

legal education.” Canon 3A(6). That exception, in turn, is

limited by the requirement that the comment “not denigrate

public confidence in the judiciary’s integrity and impartiality,

which would violate Canon 2A.” See Canon 3A(6), cmt. A

comment with that kind of effect would also likely constitute

“misconduct” under the Judicial-Conduct Rules. See JudicialConduct Rule 3(h)(2) (defining misconduct as, inter alia,

“conduct occurring outside the performance of official duties if

the conduct might have a prejudicial effect on the administration

of the business of the courts, including a substantial and

widespread lowering of public confidence in the courts among

reasonable people”).

We now proceed to examine Judge Jones’ comments

regarding the five individuals to determine whether those

comments violated Canon 3A(6), Canon 2A, or the JudicialConduct Rules. In doing so, we must consider: (1) whether any

matters involving those individuals were pending or impending

in any court; (2) if so, whether the comments were on the merits

of those matters; (3) if so, whether the “scholarly presentations”

exception applies; and (4) even if so, whether the comments

denigrate public confidence in the judiciary’s integrity and

impartiality. Although we find that a number of matters

involving those individuals were pending or impending, and that

some of the judge’s comments may have been on the merits of

those matters, we conclude that the comments did not violate

Canon 3A because the scholarly presentations exception applies. 

We also conclude that the comments did not denigrate public

confidence in the judiciary’s integrity or impartiality, and thus

did not violate Canon 2A or constitute misconduct.
52

A. “Pending or Impending in Any Court”

In United States v. Microsoft, this circuit noted that Canon

3A’s prohibition against commenting about pending or

impending matters applies -- as its text makes clear -- to cases

in “any court, state or federal, trial or appellate.” 253 F.3d 34,

112 (D.C. Cir. 2001). Neither the Code nor the Rules defines

“pending” or “impending” matters. The ABA Model Code,

which is not binding on federal judges, defines a “pending

matter” as “a matter that has commenced.” A.B.A., MODEL

CODE OF JUDICIAL CONDUCT, Terminology. “As the term

‘impending’ indicates, the prohibition begins even before a case

enters the court system, when there is reason to believe a case

may be filed.” Microsoft, 253 F.3d at 112. Cf. A.B.A., MODEL

CODE OF JUDICIAL CONDUCT, Terminology (defining an

“impending matter” as one “that is imminent or expected to

occur in the near future”). The commentary to Canon 3A(6)

further provides that “[t]he admonition against public comment

about the merits of a pending or impending matter continues

until the appellate process is complete.” Canon 3A(6), cmt.; see

Microsoft, 253 F.3d at 112 (quoting Canon 3A(6), cmt.).

With this background, we proceed to examine whether any

matters involving the individuals upon whose cases Judge Jones

commented were pending or impending in any court.

1. Druery. At the time of Judge Jones’ February 2013

lecture, Druery was on death row in Texas. On July 20, 2011,

Judge Jones had written an opinion denying Druery’s request for

a certificate of appealability (COA) from a district court

decision denying his habeas petition. Druery v. Thaler, 647

F.3d 535, 537 (5th Cir. 2011). The Supreme Court denied

certiorari on February 21, 2012, Druery v. Thaler, 132 S. Ct.

1550 (2012), a year before Judge Jones’ lecture. Thereafter,

Druery continued to file letters and further habeas petitions with
53

the federal district court. See Special Counsel Report 41. On

January 17, 2013, the district court denied Druery’s request for

a stay of execution, reversal of his conviction, or a new trial

date. Order at 2, Druery v. Thaler, No. 09-835 (S.D. Tex. Jan.

17, 2013). It did not, however, address his July 2012 plea for

relief relating to his alleged hypothyroidism and an unspecified

claim of evidentiary error at his trial. See Letter from Marcus

Druery to Judge Gray Miller, Druery v. Thaler, No. 09-835

(S.D. Tex. July 23, 2012). 

Although there was no matter pending in the Fifth Circuit

in February 2013, the district court’s denial of Druery’s request

for a stay made an appeal to the Circuit impending, in the sense

that there was “reason to believe a case may be filed,” 

Microsoft, 253 F.3d at 112. Similarly, matters were pending or

impending in the district court because the appellate process was

not yet complete, see Canon 3A(6), cmt., because Druery’s letter

of July 2012 had not yet been addressed, and in light of Druery’s

practice of filing numerous letters and motions. See Docket

Entries 27, 28, 29, 30, 43, 44 & 45, Druery v. Thaler, No. 09-

835 (S.D. Tex.). Indeed, Druery continued to file letters in the

district court well after the date of Judge Jones’ lecture, see

Docket Entries 48, 49, 50, 53 & 54, Druery v. Thaler, No. 09-

835 (S.D. Tex.), and, on November 12, 2013, the court entered

an order appointing counsel for Druery “throughout the

remainder of his federal habeas process,” Order Nunc Pro Tunc

Appointing Counsel, Druery v. Stephens, No. 09-835 (S.D. Tex.

Nov. 12, 2013).

Matters were also pending in Texas state courts at the time

of the lecture. “Shortly before his scheduled execution on

August 1, 2012,” Druery had filed a motion in Texas state court

challenging his competency to be executed on the ground that he

suffered from a “psychotic disorder [that] prevent[ed] a rational

understanding of the connection between his crime and
54

punishment.” Druery v. State, 412 S.W.3d 523, 526, 530-31

(Tex. Crim. App. 2013). The motion led to a number of

hearings and to a stay of execution and the ordering of further

proceedings to assess competency. See id. 

2. Swearingen. Swearingen was also on death row in Texas

at the time of Judge Jones’ lecture. No matters involving

Swearingen were pending or impending in the Fifth Circuit at

the time. On April 7, 2011, a panel that included Judge Jones

had affirmed the district court’s dismissal of Swearingen’s

successive habeas corpus petition, which was based on a claim

of newly discovered evidence and ineffective assistance of

counsel. Swearingen v. Thaler, 421 F. App’x 413, 414 (5th Cir.

2011). On May 9, 2011, the same panel rejected Swearingen’s 24

attempt to file another habeas petition based on a stand-alone

claim of actual innocence. Order, In re Swearingen, No. 11-

20276 (May 9, 2011). On February 27, 2012, the Supreme

Court denied Swearingen’s petition for a writ of certiorari

seeking review of the Fifth Circuit’s April 7, 2011 decision. 

Swearingen v. Thaler, 132 S. Ct. 1632 (2012).

There was, however, a matter impending in the U.S.

Supreme Court and pending or impending in the Texas state

courts at the time of the University of Pennsylvania lecture. The

Texas courts had denied the last of Swearingen’s several state

habeas petitions in December 2012. Ex Parte Swearingen, No.

53613-10, 2012 WL 6200431, at *1 (Tex. Crim. App. Dec. 12,

2012). In March 2013, Swearingen sought a writ of certiorari,

which the Supreme Court denied in June 2013. See Swearingen

v. Texas, 133 S. Ct. 2826 (2013). 

Earlier panels, also including Judge Jones, had considered 24

previous habeas challenges by Swearingen. See In re Swearingen, 556

F.3d 344 (5th Cir. 2009); Swearingen v. Quarterman, 192 F. App’x

300 (5th Cir. 2006), cert. denied, 549 U.S. 1216 (2007). 
55

3. Chester. A matter involving a third individual, Elroy

Chester, was impending -- although not pending -- in the Fifth

Circuit at the time of the February 20, 2013 lecture. 

In December 2011, Judge Jones authored an opinion for the

Circuit affirming the district court’s denial of Chester’s petition

for a writ of habeas corpus, Chester v. Thaler, 666 F.3d 340, 350

(5th Cir. 2011), and the Supreme Court denied certiorari on

October 29, 2012, Chester v. Thaler, 133 S. Ct. 525 (2012). On

the day of the lecture, Chester was scheduled for execution on

April 24, 2013. The execution was subsequently delayed until

June 12, 2013. On June 4, Chester filed a motion to stay his

execution, recall the mandate, and recuse Judge Jones from the

case, based on the allegations that are in the Complaint now

before us. Judge Jones denied the motion to recuse. Chester v.

Thaler, No. 08-70023 (June 11, 2013). On the same day, over

her dissent but without expressing a view on the merits of the

Complaint, the Fifth Circuit panel assigned to the case issued an

order directing the Clerk’s Office to assign the matter to another

panel. Chester v. Thaler, 522 F. App’x 208, 208 & n.2 (5th Cir.

2013). The new panel denied Chester’s stay and recall motions

the next day. Chester v. Thaler, No. 08-70023 (June 12, 2013). 

Thereafter, the Supreme Court denied certiorari, Chester v.

Thaler, 133 S. Ct. 2823 (2013), and Chester was executed.

Because defendants routinely file last-minute, successive

habeas petitions and requests for stays prior to scheduled

executions, there was “reason to believe,” Microsoft, 253 F.3d 25

See, e.g., Sawyer v. Whitley, 505 U.S. 333, 341 (1992) (“In the 25

every day context of capital penalty proceedings, a federal district

judge typically will be presented with a successive or abusive habeas

petition a few days before, or even on the day of, a scheduled

execution . . .”); Baze v. Rees, 553 U.S. 35, 81 n.17 (2008) (Stevens,

J., concurring in the judgment) (“‘[T]here is a strong possibility that
56

at 112, at the time of the lecture that a stay motion like Chester’s

would be filed. This rendered that matter “impending” within

the meaning of Canon 3A(6). Id. And it is for this reason that

the Committee on Codes of Conduct of the Judicial Conference

advises judges as follows: “When writing about a case the judge

has heard, even after final disposition, the judge

should . . . consider whether the comments might afford a basis

for collateral attack on the judgment. A judge must avoid

writings that are likely to lead to disqualification.” Comm. on

Codes of Conduct, Advisory Op. 55 (2009).

4. Ibarra and Trevino. Finally, Judge Jones acknowledges

that a petition for rehearing en banc in the case of Ramiro Ibarra

was “technically pending in the Fifth Circuit” at the time of her

lecture. Jones Hr’g Tr. 7; see Jones Recollections 22. She had

forgotten this, she said, “because the panel ruled in June or July

of 2012, and Ibarra filed a petition for rehearing en banc based

on the just-issued Supreme Court decision of Martinez [v. Ryan,

132 S. Ct. 1309 (2012),] which dealt with cause for procedural

defaults and habeas.” Jones Hr’g Tr. 7.

After being convicted and sentenced in the Texas state

courts, Ibarra had filed a habeas petition in federal district court. 

The petition was denied and, in June 2012, Judge Jones authored

an opinion denying Ibarra’s motion to vacate the district court’s

judgment in light of Martinez, which had been decided in March

2012. See Ibarra v. Thaler, 687 F.3d 222, 227 (5th Cir. 2012). 

The principal point addressed in the June 2012 Ibarra opinion

was the district court’s determination that Ibarra had

procedurally defaulted his ineffective-assistance-of-trial-counsel

the conviction or sentence will be reconsidered . . . [in] last-minute

stays of execution for decades after the crime.’” (quoting Alex

Kozinski & Sean Gallagher, Death: The Ultimate Run-On Sentence,

46 CASE W. RES. L. REV. 1, 17-18 (1995))).
57

claim by failing to raise it in a timely matter in the Texas courts. 

In Martinez, the Supreme Court held that, in states in which

defendants must bring claims of ineffective assistance in the first

instance on collateral rather than direct review (as the Court

found was true in Arizona, the state in which Martinez was

convicted), a showing that a defendant received ineffective

assistance (or no counsel) in his initial state habeas proceeding

may excuse his procedural default of an ineffective-assistanceof-trial-counsel claim. 132 S. Ct. at 1320. Finding that, unlike

Arizona’s procedures, “Texas’ procedures do not mandate that

ineffectiveness claims be heard in the first instance in habeas

proceedings,” Judge Jones concluded that “Ibarra is not entitled

to the benefit of Martinez for his ineffectiveness claims.” 

Ibarra, 687 F.3d at 227.

In August 2012, Judge Jones also authored an opinion

denying Ibarra’s application for a certificate of appealability

from the district court’s denial of habeas relief. Ibarra v.

Thaler, 691 F.3d 677, 686 (5th Cir. 2012). In so doing, she

concluded that none of Ibarra’s claims satisfied the standard for

granting a COA. Those claims were that: (1) he was “mentally

retarded” and therefore, under Atkins, could not be subjected to

the death penalty; (2) local law enforcement had failed to inform

him of his right to consult the Mexican consul under the Vienna

Convention on Consular Relations; and (3) his trial counsel was

ineffective in his investigation, development and presentation of

mitigation evidence, and the court should apply Martinez to his

case. 

On September 14, 2012, Ibarra petitioned for rehearing en

banc of both the June and August decisions. The petition was

based solely on the panel’s analysis of Martinez, and contended

that Martinez applied to cases in Texas. See Petition for

Rehearing En Banc, Ibarra v. Thaler, 691 F.3d 677 (5th Cir.

2012) (No. 11-70031). At the time of the lecture, the Fifth
58

Circuit had “taken no action on this en banc petition because of

the intervening cert. grant in Trevino v. Thaler, [449 F. App’x

415 (5th Cir. 2011),] which posed [the same] issue to the

Supreme Court.” Jones Recollections 22. The Fifth Circuit did

not ultimately rule on Ibarra’s petition until July 17, 2013. 

Ibarra v. Stephens, 723 F.3d 599, 600 (5th Cir. 2013).

As noted, Judge Jones also acknowledges that Trevino -- a

Fifth Circuit case not specifically cited in the Complaint, but

upon which she also commented -- was pending before the

Supreme Court at the time of her lecture. Jones Recollections

15-16, 22. The Court had granted Trevino’s petition for

certiorari on the question of whether Martinez extended to cases

in Texas. 133 S. Ct. 534, 535 (2012). Trevino wanted the Court

to extend Martinez to states that did not require defendants to

bring claims of ineffective assistance in the first instance on

collateral review, but nonetheless made it practically impossible

for those claims to be raised on direct review. See Petition for

Writ of Certiorari, Trevino v. Thaler, 133 S. Ct. 1911 (2013)

(No. 11-10189), 2012 WL 5353864 (filed April 30, 2012). The

Court had not yet ruled at the time of Judge Jones’ lecture; oral

argument in Trevino took place on February 25, 2013, just five

days later. This rendered Trevino not only pending in the

Supreme Court, but also “pending or impending” in the Fifth

Circuit. See Canon 3A(6), cmt. (providing that the “admonition

against public comment about the merits of a pending or

impending matter continues until the appellate process is

complete”); Microsoft, 253 F.3d at 112. Indeed, on May 28,

2013, the Supreme Court vacated Trevino and remanded the

case to the Fifth Circuit, holding along the lines advanced in

Ibarra’s petition for reconsideration en banc. Trevino v. Thaler,

133 S. Ct. 1911, 1921 (2013) (“[W]here, as [in Texas, a] state

procedural framework, by reason of its design and operation,

makes it highly unlikely in a typical case that a defendant will

have a meaningful opportunity to raise a claim of ineffective
59

assistance of trial counsel on direct appeal, our holding in

Martinez applies.”). 

On June 5, 2013, Ibarra moved to recuse Judge Jones from

hearing his pending petition for rehearing en banc, based on the

allegations in the instant Complaint, which had been filed that

day. The recusal motion was denied on June 10, 2013, in an

order signed by Judge Jones. Order, Ibarra v. Thaler, No. 11-

70031 (June 10, 2013). The three-judge panel, which included

Judge Jones, then vacated its prior decision and that of the

district court to the extent it was inconsistent with Trevino, and

it remanded Ibarra to the district court for further proceedings. 

Ibarra v. Stephens, 723 F.3d 599, 600 (5th Cir. 2013). In

January 2014, the Fifth Circuit likewise remanded Trevino to the

district court for reconsideration of his ineffective assistance

claim. Trevino v. Stephens, 740 F.3d 378, 378 (5th Cir. 2014). 

5. Summary. In sum, we find that there were a number

of matters involving the individuals whom Judge Jones

discussed that were pending or impending in courts at the time

of her lecture. Matters involving Druery were impending in the

Fifth Circuit, pending or impending in federal district court, and

pending in the Texas state courts. Although no matters

involving Swearingen were pending or impending in the Fifth

Circuit, there was an impending matter in the U.S. Supreme

Court and pending or impending matters in the Texas courts. 

With respect to Chester, there was a matter impending in the

Fifth Circuit. Finally, as Judge Jones acknowledges, at the time

of the lecture a matter involving Ibarra was pending in the Fifth

Circuit and a matter involving Trevino was pending in the

Supreme Court -- and therefore pending or impending in the

Fifth Circuit as well. Accordingly, we must proceed to consider

whether the judge’s comments went to the merits of any of the

pending or impending matters.
60

B. “On the Merits”

To violate Canon 3A(6), a judge’s comments must be about

a pending or impending matter and must be “on the merits” of

such a matter. Judge Jones does not believe that she discussed

the merits of any pending case: “With respect to . . . [the] cases

that had been decided in our court, . . . I related the facts of the

crimes underlying the convictions and . . . described the

disposition of issues raised like Atkins.” Jones Recollections 23. 

“Knowing the nature of these” cases, she said, “explains the

public’s usual desire that the death penalty be maintained in

law.” Id. at 6. According to Mr. Bookman, Judge Jones

introduced the cases by saying that they “illustrated the morality

of state-authorized executions.” Bookman Aff. ¶ 10; see, e.g.,

Student C Aff. ¶ 8.

Canon 3 does not define “on the merits.” The opinion that

most directly addresses the question is United States v.

Microsoft Corp., in which this circuit held that a judge’s public

comments violated Canon 3A(6) because they “disclosed his

views on the factual and legal matters at the heart of the case. 

His opinions about the credibility of witnesses, the validity of

legal theories, the culpability of the defendant, the choice of

remedy, and so forth all dealt with the merits of the action.” 253

F.3d at 112. But Microsoft is only minimally illuminating, both

because the judge’s comments in that case were far over any line

that could reasonably be drawn, see, e.g., id. at 109, and because

the judge made his comments to reporters long before he entered

final judgment in the case, id. at 108.

As we discuss in this subpart, this case largely (although not

entirely) involves a judge’s descriptions of the facts and

dispositions of previously published judicial decisions in which

she participated. Although such descriptions might technically

be said to describe the “merits” of those opinions, courts have
61

generally not found impropriety in a judge’s reiteration of

statements that the judge previously made in court. See, e.g.,

Ciavarella, 716 F.3d at 719, 722-23; United States v. Barry, 961

F.2d 260, 264-65 (D.C. Cir. 1992); United States v. Yonkers Bd.

of Educ., 946 F.2d 180, 184-85 (2d Cir. 1991); see also infra

Part VI.D.

1. Druery and Swearingen. Although the attendees at the

lecture generally recalled that Judge Jones discussed the facts of

various cases at length, they rarely recalled the specifics of those

facts. See Student B Aff. ¶ 11 (stating that he does “not recall

the names of any of these cases nor . . . any of the facts”);

Student C Aff. ¶ 8 (same); Student D Aff. ¶ 8 (“I do not recall

the specific facts of these cases.”); Student E Aff. ¶ 6 (same);

Student F Aff. ¶ 7 (same). This is particularly so with respect to

the Druery and Swearingen cases. The Complaint contains no

description of what Judge Jones said about those cases at all. 

Mr. Bookman’s affidavit mentions Druery by name and contains

a paragraph that may have been intended to describe what Judge

Jones said about that case (although the description diverges

from the facts of the case in some respects). See Bookman Aff.

¶ 13. No other affiant mentions either Druery or facts that

appear to fit that case. And no affiant, including Mr. Bookman,

mentions any recitation of facts by Judge Jones that even

appears to be a reference to Swearingen’s case.

More important, there is no evidence that Judge Jones

addressed the matters involving those two defendants that were

pending or impending in various courts, whether with respect to

the merits or otherwise. As noted in Part VI.A, matters

involving Druery were pending or impending in federal district

court (and, as a consequence, impending in the Fifth Circuit),

and pending in the Texas state courts. The matters in federal

district court involved various subjects, including Druery’s

personal health and an unspecified claim of evidentiary error at
62

his trial. The matters in the Texas state courts involved his

competency to be executed. See Druery v. State, 412 S.W.3d

523, 542 (Tex. Crim. App. 2013). Similarly, Swearingen had an

impending matter in the U.S. Supreme Court -- and

consequently pending or impending matters in the Texas courts

-- that ultimately raised due process claims based on allegations

of actual innocence and the state’s solicitation of false trial

testimony concerning forensic evidence. See Petition for Writ

of Certiorari, Swearingen v. Texas (No. 12-1114), 2013 WL

1083866 (filed March 12, 2013). There is no allegation that

Judge Jones discussed any of these matters. 

2. Chester. According to Mr. Bookman, Judge Jones related

the facts of Chester’s case, Bookman Aff. ¶ 14, and told the

audience “that Chester claimed to be mentally retarded[,] . . . but

he still managed to go on a burglary spree,” id. ¶ 18. Describing

further comments about Chester (which are misattributed to a

different case), Bookman said the judge maintained that

Chester’s efforts to obtain a gun while still in shackles

“demonstrated this man was far too canny to be mentally

retarded.” Id. ¶ 15. This description generally matches Judge

Jones’ own description of what she told the law school audience

about the Chester case, see Jones Recollections 8-9, as well as

a point she made elsewhere in her remarks, see id. at 15; see

also Student Decl. ¶ 12 (“Judge Jones argued that the very

nature of the defendant’s crimes comprised evidence that the

defendant was not mentally retarded”); Special Counsel Report

24 & nn.121-24 (describing similar interviews with other

witnesses). It also matches what the judge wrote in her

published opinion in the Chester case.26

See Chester v. Thaler, 666 F.3d 340, 350 (5th Cir. 2011) 26

(“[Chester] masterminded a sophisticated break-in and dealt with a

crisis as it developed. Nothing about this crime suggests Petitioner

had difficulties ‘process[ing] information’ or ‘engag[ing] in logical
63

 Judge Jones states that, with respect to her discussion of

Chester, she only “related the facts of the crimes underlying the

convictions” and “described the disposition of issues raised like

Atkins.” Jones Recollections 23. But it is difficult to distinguish

between merely relating, and commenting upon, the merits of an

impending matter. Here, the matter that was impending -- that

is, the matter as to which “there [was] reason to believe a

[motion] may be filed,” Microsoft, 253 F.3d at 112 -- was a

motion for a stay of execution. And the issue that the defendant

was likely to attempt to raise again was a reconsideration of the

Fifth Circuit’s earlier Atkins determination. Nonetheless,

because the point Judge Jones was making hewed so closely to

what she said in her Chester opinion, see supra note 26, it is

hard to determine that she was discussing the “merits” of an

impending case rather than reciting the “disposition” of an

earlier version of the same case. In any event, as we explain

below, even if it were the former, that discussion would fall

within the “scholarly presentations” exception to Canon 3A(6).

3. Ibarra and Trevino. Mr. Bookman’s affidavit alleges that

Judge Jones described a defendant, whom he “believe[s] she

said . . . was Ibarra,” as a Mexican national “who was claiming

to be mentally retarded but who had been able to plan a way to

get into a young woman’s house” where “there had been some

young children around” and “where he raped and killed her.” 

Bookman Aff. ¶ 17. The recollections of the other affiants are

considerably vaguer. See Student B Aff. ¶ 16. Judge Jones

states that,“[w]ith respect to Ibarra,” she again only “related the

facts of the crimes underlying the convictions” and “described

the disposition of issues raised like Atkins.” Jones Recollections

23. She says that she “simply told the audience about the issue. 

reasoning.’”); id. (holding that Chester, who “did not act on an

impulse, but rather ‘pursu[ed] a premeditated plan,’” did not have

“diminished mental capacity”).
64

I also mentioned that Ibarra had raised a question about the

failure of local law enforcement to inform him of his right to

consult with the Mexican consul, but again, this was a report of

what he alleged and what our panel unanimously decided, not a

‘comment’ on the merits.” Id. at 22-23.

As noted in Part VI.A.4, the matter involving Ibarra that

was pending at the time of the lecture was Ibarra’s petition for

reconsideration en banc of the panel’s rejection of his challenges

to the district court’s denial of habeas relief. The sole issue

raised by that petition was a challenge to the panel’s

determination that Ibarra’s ineffective assistance claim had been

procedurally defaulted, and that Martinez did not permit Ibarra

to avoid the default because it did not extend to cases pending

in Texas. See Petition for Rehearing En Banc, Ibarra v. Thaler,

691 F.3d 677 (5th Cir. 2012) (No. 11-70031). No one contends

that Judge Jones’ comments about Ibarra addressed that issue,

whether with respect to the merits or otherwise.

Judge Jones does acknowledge, however, that she also

discussed a case that was then pending in the Supreme Court,

Trevino v. Thaler. Jones Recollections 15-16. Although she did

not discuss the facts of the case, Jones Hr’g Tr. 26, she did tell

the audience that the Supreme Court had granted certiorari in

Trevino to review the Fifth Circuit’s holding that “Martinez did

not apply to Texas’s different procedures.” Jones Recollections

16; Jones Hr’g Tr. 26. And that was the matter that was pending

with respect to both Ibarra (in his Fifth Circuit en banc petition)

and Trevino (in his Supreme Court case).

Judge Jones states that she did not express an opinion on the

merits of the Martinez question pending in Ibarra or Trevino,

saying that she “simply told the audience about the issue.” 

Jones Recollections 22-23. She acknowledges, however, that

she “prophesied that if the Court extends Martinez, it may be on
65

a path to guaranteeing court-appointed counsel in habeas cases,

which would be a dramatic and costly departure from historical

practice.” Id. at 16 (emphasis added). The italicized phrase

could be read, not merely as a recitation of the pending issue,

but as a comment on its merits. We need not resolve that

question, however, because as we discuss below, the judge’s

discussion of this issue also falls within the “scholarly

presentations” exception to the prohibition on public comment.

C. The “Scholarly Presentations” Exception

Even if a judge’s comments concern the merits of pending

or impending matters, the Code of Conduct provides that the

“prohibition on public comment on the merits does not extend

to . . . scholarly presentations made for purposes of legal

education.” Canon 3A(6).

The Code does not define the terms “scholarly

presentations” or “legal education,” but advisory opinions of the

Committee on Codes of Conduct shed some light on their

meaning. Advisory Opinion 105 notes that speaking to students

is “specifically encourage[d]” under Canon 4 because “judges

are ‘in a unique position to contribute’ to programs dedicated to

improving the law and promoting public understanding of the

legal system.” Comm. on Codes of Conduct, Advisory Op. No.

105, at 1 (2010). By contrast, the same advisory opinion notes

that participation in private law-related training programs -- in

which entities seek to train their own employees, clients or

associates -- are likely to be problematic. Id. at 2-4. Advisory

Opinion 67 makes a similar distinction, for purposes of a judge

attending educational seminars, between events sponsored by

“an accredited institution of higher learning,” which “usually

raise[] fewer concerns than sponsorship by other entities,” and

events sponsored by “a business corporation, law firm, attorney,

other for-profit entity or a non-profit organization not described
66

above,” which “should be carefully examined by the invited

judge.” Comm. on Codes of Conduct, Advisory Op. No. 67, at

2 (2009); see Comm. on Codes of Conduct, Advisory Op. No.

87, at 1, 4-6 (2010) (same regarding participation in continuing

legal education programs). 

In light of these opinions and the text of the canon, we

conclude that a public lecture like the one Judge Jones gave at

the University of Pennsylvania -- on a legal topic at an

accredited law school -- falls within Canon 3A(6)’s “scholarly

presentations” exception. As Mr. Bookman himself ultimately

acknowledged, defining “scholarly” is difficult, and “if you

defined [scholarly] broadly, it was in a law school; it referenced

cases; . . . it referenced scholarly issues that are important to

anybody that studies this subject.” Bookman Hr’g Tr. 12.

Mr. Bookman was nonetheless “loath to describe this as a

scholarly presentation,” principally because it was “one-sided”

and “[t]here was no attempt at neutrality.” Id. at 9. In

particular, he thought that Judge Jones did not take seriously

“the idea of evolving standards of decency” in evaluating

various questions regarding the constitutionality of the death

penalty. Id. at 10. To take the second point first, it is plain that

many judges and many academicians vigorously dispute the

question of whether it is appropriate to consider evolving

standards of decency in making determinations under the Eighth

Amendment.27

Compare, e.g., Roper v. Simmons, 543 U.S. 551, 560-61 27

(Kennedy, J.) (stating that the Court must consider “‘the evolving

standards of decency that mark the progress of a maturing society’ to

determine which punishments are so disproportionate as to be cruel

and unusual” (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958)));

Woodson v. North Carolina, 428 U.S. 280, 293 (1976) (Stewart, J.)

(considering “evolving standards of decency”), with Roper, 543 U.S.
67

Nor can judicial councils insist that lectures and law review

articles be “neutral” to be regarded as “scholarly” under Canon

3(A)6’s exception. The dictionary defines “scholarly” as “a

characteristic of scholarship,” which is in turn defined as, inter

alia, “knowledge resulting from study or research in a field,”

WEBSTER’S IINEW COLLEGE DICTIONARY 988 (1999). There is

no doubt that Judge Jones’ lecture derived from her own study

and research of death penalty cases.

This is not to say that the members of this Special

Committee disagree that, to be regarded as “scholarly” in some

sense, lectures should present both sides of an argument

objectively. But to adopt a neutrality requirement would

exclude, for better or for worse, much of what goes on in today’s

law schools and law reviews from the protection of Canon

3A(6)’s exception. See also Republican Party of Minn. v. White,

536 U.S. 765, 779 (2002) (noting, with approval, that “judges

often state their views on disputed legal issues outside the

context of adjudication -- in classes that they conduct, and in

at 608 (2005) (Scalia, J., dissenting) (arguing that the Court’s

consideration of “modern ‘standards of decency” is “mistaken”);

McGautha v. California, 402 U.S. 183, 226 (1971) (Black, J.,

concurring) (rejecting the proposition, in the Eighth Amendment

context, that the Supreme “Court should amend the Constitution by

interpretation to keep it abreast of modern ideas”); compare also, e.g.,

Arthur J. Goldberg & Alan M. Dershowitz, Declaring the Death

Penalty Unconstitutional, 83 HARV. L. REV. 1773, 1781-83 (1970)

(arguing that, in considering the constitutionality of the death penalty,

the Supreme Court must consider the “enlightened standards” of a

public fully informed of “contemporary human knowledge”), with

RAOUL BERGER, DEATH PENALTIES: THE SUPREME COURT’S

OBSTACLE COURSE 41-43 (1982) (arguing that the Supreme Court had

made a “mistake” in failing to recognize that the relevant time frame

for determining unusualness was the year in which the Eighth

Amendment was adopted).
68

books and speeches”). Indeed, such a requirement could

contradict the Code’s “encourage[ment]” of judges “to

contribute to the law, the legal system, and the administration of

justice, including revising substantive . . . law and improving

criminal . . . justice.” Canon 4, cmt (emphasis added). To

“revise” and “improve” the law may well require taking a

position that cannot be regarded as “neutral.” We do not believe

that the drafters of Canon 3A(6) intended to circumscribe the

reach of the Canon’s exception so narrowly as to undercut the

encouragement they offered judges in Canon 4. 

Accordingly, we conclude that, to the extent Judge Jones’

discussion extended to the merits of pending or impending

matters, that discussion came within the “scholarly

presentations” exception and did not violate Canon 3A(6).

D. “Public Confidence in the

Judiciary’s Integrity and Impartiality”

One final issue regarding Judge Jones’ discussion of

individual cases remains to be addressed. Notwithstanding that

her lecture qualifies as a “scholarly presentation,” and that

therefore her comments regarding individual cases do not violate

Canon 3A(6), those comments could still run afoul of Canon 2A

and/or the Judicial-Conduct Rules. Canon 2A provides that a

judge “should act at all times in a manner that promotes public

confidence in the integrity and impartiality of the judiciary.” 

Canon 2A. The Judicial-Conduct Rules define “cognizable

misconduct” as, inter alia, “conduct occurring outside the

performance of official duties if the conduct might have a

prejudicial effect on the administration of the business of the

courts, including a substantial and widespread lowering of

public confidence in the courts among reasonable people.” 

Judicial-Conduct Rule 3(h)(2). 
69

Particularly relevant here is the commentary to Canon

3A(6), which provides that, where “public comment involves a

case from the judge’s own court, the judge should take particular

care so that the comment does not denigrate public confidence

in the judiciary’s integrity and impartiality, which would violate

Canon 2A.” Canon 3A(6), cmt.; see Comm. on Codes of

Conduct, Advisory Opinion No. 55 (2009). Similarly, although

Canon 4 authorizes judges to “speak, write, lecture, and teach”

on “law-related subjects,” it also warns that a judge should not

do so where such activity “would reflect adversely on the

judge’s impartiality.” Canon 4; see Comm. on Codes of

Conduct, Advisory Opinion No. 55 (2009); Comm. on Codes of

Conduct, Advisory Opinion No. 93 (2009).

The key to our analysis of this issue is that, with the

exception of Trevino, Judge Jones authored or was on the panel

of all the cases about which she spoke. As we have discussed

above, few witnesses recall specifics of her descriptions of

individual cases, but to the extent that we can reconstruct them,

the descriptions appear largely to repeat descriptions contained

in the published decisions. (There is no indication that Judge

Jones described the facts of Trevino at all.) The case law, albeit

in the context of recusal rather than misconduct, has not 28

regarded such reiteration as raising a serious problem of judicial

partiality. See Ciavarella, 716 F.3d at 719 (finding recusal

unnecessary where “every [allegedly problematic] statement

attributed to [the judge] had in fact been expressed by him in his

judicial opinion”); Barry, 961 F.2d at 264-65 (holding that

recusal was not required where a judge’s public remarks while

appeal was pending largely repeated comments he had

The recusal statute requires “[a]ny justice, judge or magistrate 28

judge of the United States [to] disqualify himself in any proceeding in

which his impartiality might reasonably be questioned.” 28 U.S.C.

§ 455(a). 
70

previously made in court); Yonkers Bd. of Educ., 946 F.2d at

184-85 (concluding that public statements in which a judge

“only restated what he had been saying in open court” did not

give rise to “any appearance of partiality”).

In addition to giving factual descriptions, Judge Jones at

least arguably indicated a view on the legal merits of an

impending Atkins claim by Chester and on the pending Martinez

arguments of Ibarra and Trevino. But Judge Jones’ position on

those issues also had already been expressed in her published

judicial opinions. See Chester v. Thaler, 666 F.3d at 350

(“Nothing about this crime suggests Petitioner had difficulties

‘process[ing] information’ or ‘engag[ing] in logical reasoning.’”

(quoting Atkins, 536 U.S. 318)); Ibarra v. Thaler, 687 F.3d at

227 (“Ibarra is not entitled to the benefit of Martinez for his

ineffectiveness claims.”). And there is no reason to expect that

reiteration of those well-known views in a public forum would

either “denigrate public confidence in the judiciary’s integrity

and impartiality,” Canon 3A(6) cmt., or cause “a substantial and

widespread lowering of public confidence in the courts among

reasonable people,” Judicial-Conduct Rule 3(h)(2). Rather, as

the Supreme Court held in Liteky v. United States, and many

courts have since repeated, ordinarily, “opinions formed by [a]

judge on the basis of facts introduced or events occurring in the

course of current proceedings, or of prior proceedings, do not

constitute a basis for a bias or partiality motion.” Liteky, 510

U.S. at 555; see, e.g., Ciavarella, 716 F.3d at 723; United States

v. Allen, 587 F.3d 246, 252 & n.12 (5th Cir. 2009); United States

v. Voccola, 99 F.3d 37, 42-43 (1st Cir. 1996); see also Comm.

on Codes of Conduct, Advisory Opinion No. 66 (2009).

Finally, as we have suggested above, it is possible to read

Judge Jones’ comment that, if in Trevino the Supreme Court

“extends Martinez, it may be on a path to guaranteeing courtappointed counsel in habeas cases, which would be a dramatic
71

and costly departure from historical practice,” Jones

Recollections 16, as going beyond what she had previously said

in published opinions. See supra Part VI.B.3. This does not

necessarily exclude the comment from the holding of Liteky. 

Moreover, the comment was directed at a case then pending

before the Supreme Court, rather than a lower court. We do not

believe it could reasonably have been thought that such a

comment would improperly influence the Supreme Court. And

once the Court rendered its decision and remanded the case to

the Fifth Circuit, Judge Jones’ own views about what the

Supreme Court should do in Trevino would have been (and

were) moot.

We therefore conclude that Judge Jones did not commit

misconduct in discussing the specific cases cited by the

complainants.

VII

For the foregoing reasons, the Special Committee

recommends that the Judicial Council dismiss the Complaint.

Respectfully submitted,

Merrick B. Garland

Thomas B. Griffith

Richard W. Roberts