It's hard to get rid of a bad judge, but Thomas Porteous may be on the way out

Move to impeach federal judge is a rarity

by Meghan Gordon, West Bank bureau
Saturday December 22, 2007
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A federal appellate court's impeachment recommendation leveled against U.S. District Judge Thomas Porteous last week ranks as such a rare occurrence that none of the 7,400 complaints filed against members of the nation's judiciary in the past decade met the same fate, according to the most recent statistics.

And if the 5th Circuit Court of Appeals' call for impeachment wends its way to the U.S. Senate without being overturned by a higher judicial panel, dropped by congressional inaction or made moot by Porteous' resignation, the trial would become just the 12th in U.S. history.

"It's quite rare for federal judges to be disciplined at all," said Stephen Gillers, a specialist in legal ethics at New York University. "It's even more rare for federal judges to be impeached or forced to resign in the face of impeachment. It has to be really bad behavior to get to that point."

A 19-judge panel of the 5th Circuit alleged that numerous ethical lapses by Porteous might constitute grounds for impeachment. The order released Thursday also stripped Porteous of his criminal and bankruptcy docket, along with any other cases involving the government.

The 5th Circuit forwarded sealed records of its secret investigation to the U.S. Judicial Conference, a 27-judge panel led by Chief Justice John Roberts and stocked with all the circuits' chief judges. The group will consider the 5th Circuit's recommendation for referral to the U.S. House of Representatives.

Never before has this higher panel of judges overturned an impeachment finding by a circuit court's judicial council, said Richard Carelli, spokesman for the Administrative Office of the U.S. Courts.

The three previous impeachment recommendations against federal judges, made under the current statute enacted in 1981, were upheld and passed on to the House.

The Constitution requires a majority vote in the House before the case goes to trial in the Senate. All three recent cases to spring from judicial councils ended in impeachment convictions.

Former District Judge Harry Claiborne of Nevada was convicted of filing false tax returns in 1984 and removed from office by an impeachment trial in 1986.

Three years later, the Senate convicted then-District Judge Alcee Hastings of Florida on charges of making false statements and producing fake documents during a 1983 criminal bribery trial from which he was acquitted. He was elected to Congress in 1992 and has since won seven re-election campaigns.

In the most recent case, former District Judge Walter Nixon of Mississippi was convicted by the Senate in November 1989 on perjury charges for statements he made to a grand jury investigating the state drug prosecution of his partner's son...

Hundreds of complaints are lodged against federal judges every year. Most are written by litigants, prisoners and other members of the public, often disgruntled over an unfavorable ruling. Chief judges write a fraction of the complaints when they become aware of indiscretions in their district courts.

Of the 7,462 complaints filed in the decade that ended Sept. 30, 2006, eight required action by a judicial council, including four public reprimands and one private reprimand. None of the complaints were referred to the Judicial Conference, as Porteous' was.

Thousands of others were dismissed for being deemed frivolous, not conforming to statute or because they directly related to a decision or procedural ruling...

A review of national newspapers found a single case of judicial misconduct rising to the level of public censure since the latest round of statistics. A panel of the U.S. 9th Circuit Court of Appeals in San Francisco ordered that District Judge Manuel Real be reprimanded for interfering with the bankruptcy of a probationer under his supervision.

In Porteous' order, the court briefly outlined four areas of misconduct of which a majority of the panel found substantial evidence supporting the allegations.

His and his wife's 2001 bankruptcy led the list, with the panel finding Porteous filed numerous false statements under oath, concealed assets, hid gambling losses and failed to list all creditors. The judges found he also violated bankruptcy court orders forbidding him to incur debt when he continued to take out short-term extensions of credit at casinos...

Porteous received gifts and other things of value from lawyers who had cases assigned to his court, the order says, and went so far as to dismiss a recusal request without disclosing financial relationships with an attorney on the case.

The list of alleged abuses ends by attacking the accuracy of financial disclosure statements he filed, as required, from 1994 to 2000. The order says the reports omit gifts and other valuables given to him by attorneys and significant amounts of debt.

Porteous, who presided for a decade at the 24th Judicial District Court in Gretna, was nominated by President Clinton in April 1994 and confirmed by the Senate two months later.

While Porteous awaits the Judicial Conference's review of his case, legal experts said he's lost more than just his criminal and bankruptcy dockets.

"It's obvious that this is a great diminishment of his authority and will cast doubt about any actions that he takes in the interim," said Jeffrey M. Shaman, a judicial ethicist and DePaul University professor.