Once again, judicial oversight is limited to "personal" misconduct, ignoring the "professional" misconduct from the bench.

Ouster fight starts for U.S. Judge; Complaints against Porteous passed on
December 21, 2007

Gambling debts, false statements under oath, bank fraud and secret gifts from lawyers form the heart of an extraordinary impeachment referral that was lodged Thursday against U.S. District Judge Thomas Porteous Jr.

An administrative panel of the 5th U.S. Circuit Court of Appeals in New Orleans barred Porteous from overseeing certain cases and sent its findings to the Judicial Conference of the United States, a national body chaired by Chief Justice John Roberts. If the conference agrees, the case would go to the U.S. House of Representatives to consider steps to remove Porteous from office.

The order from the 5th Circuit's Judicial Council marks the latest setback for a judge who lost his Metairie home to Hurricane Katrina in 2005. Three months later, his wife died.

Porteous has been a federal judge in New Orleans since 1994, after serving 10 years on Louisiana's 24th District Court in Gretna. Long after taking the federal bench, he fell under criminal investigation during the FBI's wide-ranging Wrinkled Robe inquiry into corruption at the Gretna courthouse. The Justice Department concluded the criminal inquiry this past spring without indicting Porteous, but instead filed an administrative complaint of misconduct with the 5th Circuit on May 18, according to court records. That move led to Thursday's order.

Judge Porteous in 1992, as a favor to bail bondsman Louis Marcotte, expunged the felony record of Jeff Duhon, who became a bail bondsman and married Marcotte's sister.  Marcotte later arranged and paid for repairs to Judge Porteous' cars and the installation of a fence in his backyard [1].  In 1994, weeks before being elevated to the Federal Bench, Porteous expunged the record of another felon, Aubrey Wallace, a former Jefferson Parish deputy, as a personal favor to him [2].

When questioned about the expungement by the head of a local watchdog group, Porteous replied, "I don't have to explain anything to you.  I'm a federal judge." [3]
  1. Martha Carr and Manuel Torres, "Judges were given gifts, pair say; Marcotte's ex-workers tell of shrimp, fence," The Times-Picayune, New Orleans, February 8, 2003, National, p. 1.

  2. Associated Press, "New U.S. judge accused of illegal favor to inmate," The Advocate, Baton Rouge, March 20, 1995, City Desk, p. 4b.

  3. Meghan Gordon and Kate Moran, " Judge known for wit, charm; But probe, wife's death have been bitter blows," The Times Picayune, New Orleans, June 25, 2006, National, p. 1.

Porteous, 61, could not be reached for comment. His son, Tim, said he spoke for the entire family when he declined to comment.

Internal investigations of federal judges are rare. In the year ending Sept. 30, 2006, the 5th Circuit handled only 97 complaints of misconduct or disability against federal judges in Louisiana, Texas and Mississippi and closed 74, according to an annual federal report. The chief judge threw out more than half of them without a special investigation, and the Judicial Council dismissed the rest without sanctions.

It has been 14 years since the council last found grounds to remove a federal judge in these three states. In 1993, Judge Robert Collins of the District Court in New Orleans, who had been convicted two years earlier of taking a $100,000 bribe from a drug smuggler, had his impeachment case pending before the House Judiciary Committee when he resigned.

His replacement on the bench was none other than Porteous, nominated by President Clinton.

However, Porteous might have room for hope, should his case follow a similar route to Congress.

"I've never heard of a federal judge being impeached without being indicted," said lawyer Patrick Fanning, a Porteous friend who said he represented two witnesses during the 5th Circuit's secret proceedings.

Evidence of misconduct

According to the Judicial Council's ruling, the investigation found "substantial evidence" that Porteous:

• Filed "numerous false statements under oath" during his joint bankruptcy proceedings with his wife, Carmella. Porteous concealed assets, failed to identify gambling losses and violated Bankruptcy Court orders against taking on more debt "in that he continued regularly to incur short-term extensions of credit from various casinos," the Judicial Council said.

• "Engaged in fraudulent and deceptive conduct" concerning a debt he owed to Regions Bank before the bankruptcy.

• Took gifts from attorneys with cases on his docket and failed to report them for six years, from 1994 to 2000.

The order was signed by Edith Jones of Houston, the chief judge of the 5th Circuit.

The council's report is short on details, and the investigative records are under seal. However, it is clear that the council focused on several matters previously made public.

Porteous and his wife, Carmella, sought protection from their creditors under Chapter 13 of the U.S. Bankruptcy Code in 2001. They filed the case under the names G.T. Ortous and C.A. Ortous with a post office box address in Harvey. Twelve days later, they amended the papers to use their real names.

At a time when Porteous was making $141,000 a year as a federal judge and his wife was declaring no income, they said they were shouldering $158,000 in mortgages, owed $20,000 on five credit cards and had but $100 in the bank. Their unsecured debt totalled $152,147.

They were released from bankruptcy three years later, after paying 34.5 percent of the debt, a substantially higher portion than the average in Chapter 13 proceedings, a bankruptcy scholar said at the time.

Parts of ruling reversed

As for gifts from attorneys with cases in his court, the Judical Council did not cite specifics, but it did obliquely reference "one particular case (Liljeberg)" that has previously drawn scrutiny.

This was convoluted litigation that Porteous took over in 1996 and centered on the struggle for control of what was then known as Kenner Regional Medical Center. The key parties were Liljeberg Enterprises, the partnership that built the hospital and ran its pharmacy, and Lifemark Hospitals, which operated the hospital, helped finance its construction and later acquired it at public auction after a Liljeberg affiliate defaulted on a loan.

After the case was transferred to Porteous' court, Liljeberg Enterprises hired three lawyers who were considered close to him. He eventually decided the case in Liljeberg's favor, awarding the company $12.5 million and canceling the public sale at which Lifemark had acquired the hospital.

The 5th Circuit later reversed parts of his ruling, calling it "deeply flawed" and riddled with "clear error."

Lawyers Robert Creely and Jacob Amato admitted they made cash payments to Judge Porteous for more than a decade, according to documents released by the 5th U.S. Circuit Court of Appeals [4].  When Creely decided to stop payments, Porteous steered additional legal work to him and asked for kickbacks.  Creely and Amato also gave several thousand dollars to Porteous to help pay for his son's wedding in 1999 [5].

Judge Porteous also received gifts, cash and lavish meals from other lawyers, including Don Gardner, Leonard Levenson and Warren "Chip" Forstall.  When Porteous traveled to Las Vegas for his son's bachelor party, Forstall paid for Porteous's plane fare and Creely picked up the judge's hotel tab [5].
  1. "Memorandum Order and Certification, IN RE: Complaint of Judicial Misconduct against United States District Judge G. Thomas Porteous, Jr. under the Judicial Conduct and Disability Act of 1980," The Judicial Council of the Fifth Circuit, December 20, 2007, http://www.ca5.uscourts.gov/news/news/GTP ORDER AND PUBLIC REPRIMAND.pdf, accessed 06/22/08.

  2. "Rid us of this unfit judge" [Editorial] The Times-Picayune, New Orleans, February September 13, 2008, Metro, p. 6.

Federal agents initially unearthed Porteous' alleged misconduct during Operation Wrinkled Robe, which largely centered on the influence of a bail bonds company over judges and jailers in Gretna. That investigation sent two state district judges to prison and garnered guilty pleas from 11 other people. But the Justice Department informed Porteous earlier this year that it would not seek to indict him, his lawyer Kyle Schonekas said at the time.

Schonekas said Thursday he did not represent Porteous before the 5th Circuit Judicial Council and could not comment on the matter.

Porteous returned to the federal bench in June, after spending a year on disability in the wake of losing his house and his wife and enduring the criminal investigation. He had not presided over a criminal case in four years, choosing to recuse himself in 2003 when it became apparent that he was the subject of a federal criminal investigation.

In 2004 and 2005, Judge Porteous accepted hunting excursions that he valued at $1,000 each from two offshore drilling companies — Rowan Companies and Diamond Offshore of Houston — which had civil cases in his court [6,7].
  1. Kate Moran, "Company facing suit took judge hunting; Experts question ethics of Porteous outing," The Times-Picayune, New Orleans, October 29, 2006, Metro, p. 1.

  2. Drew Broach, "Letter reveals witness's link to Porteous case; Oil firm sponsored regulator's hunt trip," The Times-Picayune, New Orleans, November 17, 2009, National, p. 2.

Limited responsibilities

In referring Porteous up the administrative chain for possible impeachment, the 5th Circuit's Judicial Council ordered that he take on no new cases involving bankruptcy or involving the federal government. He may continue his civil docket and administrative duties, the council said.

The council's decision is a small but important cog in the impeachment process. From here, the case goes to the Judicial Conference of the United States, which will decide whether it warrants action by the U.S. House. Should the lower house vote to impeach Porteous, the Senate would begin a trial. It would take the approval of two thirds of the Senate to oust the judge.

Under law, an impeachment trial does not carry the implications of a criminal trial. Should Porteous resign from office, the process would simply cease.

"It's not designed to punish," said Joe St. Amant, senior appellate attorney for the 5th Circuit. "It's designed to handle the business of the courts."

Fanning said he had lunch with Porteous earlier this week, remarking that the judge was in good spirits.

"I think he's bolstered by the fact that the Justice Department investigated him for five years and couldn't find anything worth an indictment," he said. "I think that he's got a strong legal position" if the case advances to Congress.

Copyright 2007, The Times-Picayune Publishing Corporation

From: Richard Rainey, "Ouster fight starts for U.S. judge; Complaints against Porteous passed on," The Times-Picayune, New Orleans, December 21, 2007, National, p. 1.  Drew Broach and Meghan Gordon contributed to this report.  Richard Rainey can be reached at rrainey@timespicayune.com.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.