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Ethics Charge Against Judge Jones Faces Appeal

(CN) - Civil rights groups will appeal after the D.C. Circuit Judicial Council found it unclear whether 5th Circuit Judge Edith Jones told Ivy Leaguers that certain races are "predisposed to crime."

Thirteen civil rights groups and individuals filed the complaint in June 2013, days after a June 2 lecture Jones gave at the University of Pennsylvania School of Law.

The case against the jurist with the federal appeals court in New Orleans is unusual in that such judicial misconduct complaints and reviews are typically not disclosed to the public.

Jones is quoted in the complaint as saying that certain "racial groups like African Americans and Hispanics are predisposed to crime" and are "prone to commit acts of violence."

"Judge Jones stated that 'race' was merely a 'red herring' 'thrown up by opponents of capital punishment,' and that no case had ever been made for 'systemic racism,'" the complaint said. "She also asserted that 'certain systemic classes of crimes' exist and that 'certain racial groups commit more of these crimes than others.' She said that '[s]adly some groups seem to commit more heinous crimes than others."

Jones also allegedly "expressed disgust" at the use of mental retardation as a defense in capital cases.

The petitioners - including the National Bar Association's Houston chapter - also claimed that Jones showed "extreme disrespect" to her colleague, 5th Circuit Judge James Dennis "by loudly slamming her hand on the bench during [his] questioning of counsel during oral argument, disrespectfully asking Judge Dennis if he 'wanted to leave' the courtroom during the argument, and saying she wanted him to 'shut up.'"

Relying on the July recommendations of a specially appointed investigative committee, the nine-member D.C. Circuit Judicial Council found the evidence insufficient to nail Jones on judicial misconduct.

The 71-page order is dated Aug. 12 but did not become public until Wednesday when the petitioners announced their appeal.

"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," the report states. "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."

It is uncontested that Jones was asked to expand upon race issues during a question-and-answer portion of her lecture on the death penalty for the student-run chapter of the Federalist Society.

The misconduct panel noted "considerable dispute regarding her wording and tone."

Jones admitted at a hearing on the charges "that she 'may have said' that 'sadly some groups seem to commit more heinous crimes,'" according to the order.

"But she insists that she 'was talking about statistical facts. I was not talking about propensities,'" the ruling continues. "The judge also acknowledges that she referred to racism as a 'red herring.' But she states that she used the term only to mean that such 'complaints are not well taken from a practical or legal standpoint.'"

A witness also told the panel that Jones "was talking about 'statistical fact,' not 'biology,'" the report states.

The investigative committee found "no doubt" that suggesting certain groups are "prone to commit" violence or are "predisposed to crime" reflects adversely on a judge's impartiality.

"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," the report states. "More important, whatever she said initially, it is clear that Judge Jones used the question-and-answer period to clarity that she did not adhere to such views."

The panel noted that it has "no doubt" the witnesses were offended by Jones' remarks and that the judge herself said she "was uncomfortable alluding to such facts."

Jones "strongly denied" she said it is a "disservice" to the mentally retarded to exempt them from the death penalty, the report says.

"Witnesses diverge as to whether they specifically recall Judge Jones using those words," it states. "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. 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.'"

The report notes that Jones quickly offered an apology to Dennis the same day she told him to "shut up."

"Jones noted this apology in her letter to the Special Committee and advised the Committee that Judge Dennis had accepted it," the report says. "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."

President Ronald Reagan appointed Jones, while President Bill Clinton appointed Dennis.

The council included five judges with the D.C. Circuit: Chief Judge Merrick Garland and Judges Brett Kavanaugh, Sri Srinivasan, Patricia Millett and Cornelia Pillard. Four members of U.S. District Court for the District of Columbia, including Chief U.S. District Richard Roberts, also sat on the panel.

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