5th Circuit criticizes federal judge for alleged sexist remark about simpler times

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Lynn Nettleton Hughes

U.S. District Judge Lynn Hughes of Houston. Wikimedia Commons.

A federal appeals court has reinstated an indictment and directed the case be assigned to a new federal judge following the initial judge's alleged remarks about the female prosecutor in the case.

The New Orleans-based 5th U.S. Circuit Court of Appeals criticized the remarks by U.S. District Judge Lynn Hughes of Houston in a July 3 opinion, report the Houston Chronicle and Texas Lawyer.

Hughes had dismissed the fraud case against the owner of an adoption agency because of prosecution discovery mistakes that included withholding a document file until the eve of trial.

“It was lot simpler when you guys wore dark suits, white shirts and navy ties,” Hughes said. “We didn’t let girls do it in the old days.” Hughes said there were 79 docket entries in the 3-year-old case, and a continuance to allow the defense to review the documents would be “too much delay.”

“You’re supposed to know what you’re doing. You’re supposed to be the one thinking of stuff,” Hughes told the prosecutor. He dismissed the case with prejudice.

In a footnote, the 5th Circuit noted that the lawyer for adoption agency owner Simone Swenson had suggested Hughes might have been speaking about other women at the hearing, rather than prosecutors, “Regardless,” the footnote said, “such comments are demeaning, inappropriate, and beneath the dignity of a federal judge.”

The 5th Circuit said Hughes never expressly determined whether the prosecution’s late release of the files was motivated by bad faith. “It does not appear that the district court attributed ill intent to the prosecution,” the appeals court said. “If anything, it seems the district court attributed the government’s mistakes to the prosecutor’s sex.”

Nor had the defense shown that the late release of the documents created actual prejudice, the appeals court said. The dismissal with prejudice was an abuse of discretion, the appeals court concluded.

Judge Edith Brown Clement wrote the panel decision in the case, United States v. Swenson. The adoption agency owner was accused of fraud for allegedly keeping money she had collected from two prospective families that she had matched with the same birth mother.

Hughes told the Houston Chronicle his comment was a snide comment addressed to FBI agents. “As the transcription shows, after I addressed the prosecutor I talked to an FBI agent about poorly dressed agents,” Hughes said. “The prosecutor supplied a quotation to the court of appeals that had been cut to make it appear that I was talking to her. The remark derogated no one. It was about the exclusion of women historically. Then and now I do not approve of their exclusion. Incidentally the defense lawyer, government lawyers and FBI agent were all women.”

Hughes has clashed with prosecutors in the past, though he targeted Justice Department lawyers he described as “pretentious.” Hughes issued an “order on ineptitude” because the lawyers had problems ordering a transcript. He also previously berated a male Justice Department lawyer for failing to wear a suit and tie after the lawyer arrived in the courtroom after an overseas flight.

A civil rights group had filed a complaint against Hughes in 2013 for remarks in a discrimination case by an engineer who was born in India. Hughes said the engineer is Caucasian, saying: “That’s where we came from. That’s why Adolf Hitler used the swastika.” Hughes stayed on the case after explaining his remarks about the swastika were a historical reference to Hitler’s adoption of a Sanskrit word for good luck, and his comment about Caucasians referenced the definition in anthropology.

In yet another discrimination case, the 5th Circuit upheld a ruling by Hughes but said he missed the racist implications of a supervisor’s remark that if Barack Obama were elected president, the Statue of Liberty’s torch would be replaced by a piece of fried chicken. Hughes had said no black owns the sensitivity rights to fried chicken, and suggesting the term is a racial slur is “really surprising to Colonel Sanders.”

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