Judge’s ban sparks clash
U.S. attorney is challenging jurist’s banishment of a female prosecutor
A federal judge’s order banishing a female prosecutor from his Houston courtroom last month sparked a rare standoff between the Southern District’s U.S. attorney and the jurist, who has a history of sniping at lawyers, government officials and litigants.
U.S. District Judge Lynn N. Hughes, a 77-year-old appointed by President Ronald Reagan, has been criticized in the past for making comments in court perceived as racist or sexist.
U.S. Attorney Ryan K. Patrick argued that in twice ejecting the prosecutor before a trial, the judge exceeded his authority by attempting to rule on who can prosecute a case in his court. Hughes told Patrick that the prosecutor — who was involved in a previous case where the judge made controversial remarks — lacked ability and integrity, records show.
Hughes is known for delivering history lectures, issuing blunt critiques about improper courtroom attire and accusing the Justice Department of abusing government resources. A 2017 Houston Bar Association poll found that lawyers felt he needed the most improvement in being impartial, following the law and being courteous to attorneys and witnesses.
The controversy last month involved Assistant U.S. Attorney Tina Ansari, who also was involved in a 2017 court session in which Hughes made remarks characterized by the 5th U.S. Circuit Court of Appeals as “demeaning, inappropriate and be-
neath the dignity of a federal judge.”
“It was a lot simpler when you guys wore dark suits, white shirts and navy ties… We didn’t let girls do it in the old days,” Hughes had said during the court session. He later told the Houston Chronicle he was speaking to a group of FBI agents, at least one of whom was a woman, and not Ansari. He said the comments were in reference to the exclusion of women historically and were not derogatory.
Hughes’ remarks were included in the U.S. Attorney office’s appeal of the ruling, which was reversed by the 5th Circuit in a July 2018 decision that was sharply critical of the judge.
The appellate court also took the unusual step of ordering the presiding district judge to reassign the case to a different judge.
Question of authority
The next time Ansari appeared before Hughes was on Jan. 14 as one of two prosecuting attorneys for a fraud case unrelated to the 2017 court session. At the pretrial hearing, Ansari announced her name to the court reporter and Hughes promptly excused her from court. She packed up and left.
Four days later, at the start of a subsequent hearing on the fraud case, Hughes immediately excused Ansari again. She asked why, and Hughes declined to provide his rationale.
Ansari thanked Hughes and left the courtroom.
Patrick, who attended the Jan. 18 hearing, addressed the judge and asked for an explanation. He reminded Hughes it is the Justice Department’s duty to assign prosecutors to cases.
Hughes responded that Patrick had failed to withdraw a “dishonest brief” in the 2017 case that the judge said incorrectly quoted him as making the “girls” remark to Ansari. Hughes said that in the past, prosecutors had corrected mistakes when the court pointed them out, and Hughes claimed that Patrick and his staff had not followed suit.
The judge explained, “Ms. Ansari is not welcome here because her ability and integrity are inadequate,” according to a transcript.
Hughes declined recently to comment about Ansari’s ejection, but told Patrick in court that the U.S. attorney had conflated a comment to Ansari about being unprepared for her case with a later comment about women’s attire.
Patrick’s office asked to stop the criminal trial while officials appealed Ansari’s ejection. They also asked that Hughes recuse himself from the case, which the judge declined to do. The appeals court promptly denied the stay, and the fraud trial began without Ansari. A jury convicted the defendant on all counts.
Following the guilty verdict, Patrick said the judge exceeded his authority in excluding Ansari.
“My duty under the law as the U.S. Attorney is to prosecute all crimes in the Southern District and that includes assigning the attorneys I feel are appropriate for any individual case,” said Patrick, who is the top federal law enforcement official in the sprawling federal district. “A judge does not have the authority to decide who gets to appear in front of him and a judge certainly cannot retaliate against a lawyer based on their performance in a previous case where the 5th Circuit has already told him he was wrong.”
Patrick said his office is appealing Hughes’ decision to remove Ansari.
Controversial comments
Hughes’ unvarnished critiques from the bench include a 1994 statement that U.S. immigration officers were “flunkies” and “brown shirts”— a reference to Nazi supporters — due to their conduct in a passport fraud case.
In 2013, the Texas Civil Rights Project filed a complaint against Hughes based on a review of court transcripts in three separate cases they said showed a pattern and practice by Hughes of making what the nonprofit organization described as “racist” remarks.
The complaint focused on the judge’s comments about diversity, including his ruling that comments allegedly made by a Fort Bend Independent School District administrator to an African-American employee were insignificant political speech. The administrator had allegedly told the employee that if Barack Obama were elected president, the Statue of Liberty would have its torch replaced by a piece of fried chicken.
The outcome of that complaint has not been disclosed in court records.
Hughes has garnered national attention for other remarks and rulings, including his dismissal of a sex discrimination case brought by a nursing mother who was prevented from pumping breast milk at work. An appeals court reversed Hughes’ ruling in that case.
In other cases, Hughes has dressed down federal officials for what he considers inappropriate courtroom behavior and attire. Last year he snapped at a male FBI agent in a child pornography case for showing up in his courtroom without a tie.
In a 2016 incident, Hughes issued a rare “Order of Ineptitude” in a terrorism case involving a man accused of supporting ISIS overseas. His wrath was not for the alleged terrorist, but a federal prosecutor from Washington, D.C., who appeared in court without a suit and tie.
After he was berated by Hughes for his outfit, the prosecutor apologized and explained he didn’t have a suit with him because he had just arrived in Houston from the Middle East. Hughes told him to retrieve his passport so he could verify the prosecutor’s customs stamps.
“So, what is the utility to me and to the people of America to have you fly down here at their expense, eat at their expense and stay at their expense when there are plenty of capable people over there, in this room plus over there?” Hughes asked. “You don’t add a bit of value, do you?”
Ethics questions posed
Two experts interviewed by the Chronicle said Hughes’ pattern of unusual or improper remarks and his recent behavior toward the female prosecutor could fit the legal definition of federal judicial misconduct or even incompetence and should be formally reviewed by Chief U.S. Judge Carl E. Stewart of the 5th Circuit.
Joanna L. Grossman, a professor at Southern Methodist University’s Dedman School of Law, said it appears based on court records that Hughes directly retaliated against the female prosecutor because of criticism generated over his 2017 remark — a matter that had nothing to do with the criminal case before him.
“You need some proceeding where either the judge has to account for the conduct or air the facts — and there’s no natural way for that to happen outside of the misconduct complaint process,” Grossman said.
Arthur Hellman, a senior University of Pittsburgh law professor and an expert on federal judicial ethics, separately reviewed portions of the transcript and said Hughes’ behavior “seems to be erratic in a way that starts to raise some questions about his competence.”
Hellman said it was bizarre for a judge to be “jumping into the case in this way and deciding this particular (prosecutor) … isn’t competent to represent the U.S. when the U.S. Attorney who runs the office thinks she is.”
Given Hughes’ history as the subject of a previous formal complaint and of public criticism in past appellate court opinions, Hellman said, “I think that the overall pattern of behavior here is sufficient to justify the chief judge initiating a complaint under the misconduct act.”
Under federal law, the chief appeals judge can independently decide whether to initiate his own formal review into whether Hughes’ latest behavior constitutes judicial misconduct or mental disability. Stewart, as chief judge, confidentially reviews all misconduct complaints involving federal judges in Texas, Mississippi and Louisiana.
Federal law defines misconduct for federal judges as any act that is “prejudicial to the effective and expeditious administration of the business of the courts” and disability as being “unable to discharge all duties of office by reason of mental or physical disability.”
Stewart did not respond to an email inquiry about whether he plans to investigate last month’s incident involving Hughes.
“You need some proceeding where either the judge has to account for the conduct or air the facts — and there’s no natural way for that to happen outside of the misconduct complaint process.” Joanna L. Grossman, a professor at Southern Methodist University’s Dedman School of Law