In re Charges of Judicial Misconduct (769 F.3d 762, 2014)

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.

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

In re: Complaint of Judicial Misconduct

Judicial Complaint

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

Thirteen individuals and public interest groups have tiled 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 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.

On June 20, pursuant to 28 U.S.C. § 352(a) and Judicial-Conduct Rule 1 1(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 Judicial-Conduct Rules 11(f) and 12, Chief Judge Garland appointed this Special Committee to consider the allegations in the Complaint. See 28 U.S.C. § 352(a) (“The chief judge shall not undertake to make Endings 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 Beilin, 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 Beilin interviewed a total of 45 people, including most of the attendees at the lecture. The great majority of the latter were University of Pennsylvania law students. Special Counsel Beilin also interviewed all of the non-student attendees. Those included the law school’s Associate Director for Clerkships; three assistant federal defenders; and 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 Beilin 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 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 Judicial-Conduct 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.” 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. 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.

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 “[ajdherence 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.

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 gtate 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 require only a preponderance of the evidence. None applies a lesser standard.

This Circuit has never determined'what burden of proof applies in judicial misconduct proceedings. Nor need we do so here. Our disposition would be the same regardless of whether a preponderance or clear-and-eonvincing 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.

Government: I think the amount of drugs in that truck supports the intent to distribute. And the jury ...

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. 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 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 above-quoted 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, 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 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 thousands-year 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 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 postconviction docket less “chaotic.” See, e.g., Jones Recollections 10-14; Assistant Federal Defender Summary 2.

Judge Jones then turned to the 2002 ease 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, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Atkins left it to the states to determine who met that standard, id. at 317, 122 S.Ct. 2242, 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.

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, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998); Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S.Ct. 2669, 165 L.Ed.2d 557 (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 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 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 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 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. Book-man 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 Deel. This declaration had been solicited by the president of the Federalist 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.

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 eth-nicities,” 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 aha, Canon l’s instruction that a judge should uphold public 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, 107 S.Ct. 1756, 95 L.Ed.2d 262 (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 African-Americans 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 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-and-answer 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.

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, emt.; Judicial-Conduct Rule 3(h)(2). Cf. In re Complaint of Judicial Misconduct, 751 F.3d 611, 616-17 (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-and-answer 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))).

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.

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, 107 S.Ct. 1756, 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, 122 S.Ct. 2242. 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.

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 “[ejapital 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 ‘[[Intellectually [djisabled.’ ” 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 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 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.

Judge Jones also acknowledges she said that the manner in which some defendants committed their crimes raised doubts about whether they were actually intellep-tually 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 Fed.Appx. 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 “ ‘[mjentally 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, 122 S.Ct. 2242). Judge Jones’ argument in her discussion of the Hardy example mirrored her conclusion in Ches ter 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, 122 S.Ct. 2242. Such reiteration of her previously expressed judicial opinion does not constitute misconduct. Cf. Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (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, 122 S.Ct. 2242. So did all other extant Supreme Court opinions at the time of Judge Jones’ lecture. And so, too, did “both the lawyers and the Justices” 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, — U.S. -, 134 S.Ct. 1986, 1990, 188 L.Ed.2d 1007 (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 infra Part V.H. Judge Jones does not recall, as do few if any witnesses, whether she labeled “actual innocence” q “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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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 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, 114 S.Ct. 1147.

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).

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 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 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 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, 751 F.3d at 616 (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 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 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.

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 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