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Judge’s insistence on mask removal spurs complaint

A watchdog group lodged a complaint Thursday against a federal appeals court judge for insisting that a lawyer remove his mask during arguments held in New Orleans at a time last month when new cases of COVID-19 were surging.

The group “Fix the Court” said 5th U.S. Circuit Court of Appeals Judge Jerry Smith’s insistence that a U.S. Department of Justice lawyer remove his mask at a hearing last month violated the Code of Conduct for U.S. Judges.

“Remove your mask, if you would,” Smith can be heard telling attorney Josh Koppel in an audio recording of the Jan. 6 hearing.

“I’d prefer to leave it on,” Koppel said.

“We would prefer that you remove it, thank you,” Smith replies.

In a letter to the 5th Circuit clerk, Gabe Roth of Fix the Court asserts that Smith violated a part of the conduct code stating that judges “should be patient, dignified, respectful, and courteous” to lawyers they are dealing with.

“His initial response was plainly audible on the court’s audio recording, indicating that the mask was not impeding Judge Smith’s ability to hear him,” Roth wrote.

A request to the court for comment from Smith or court officials did not get an immediate response Thursday afternoon. The complaint will be reviewed by the court’s chief judge, Priscilla Owen, who would decide whether to dismiss it or whether corrective action or review by a committee is called for, according to the judicial conduct rules.

The Justice Department declined comment.

Koppel had traveled to New Orleans to argue for the federal government in a lawsuit by a former FBI agent. The suit alleges retaliation by the FBI against the agent for a letter he wrote to a federal judge alleging that some federal prosecutors had conflicts of interest in the case of a Louisiana district attorney’s plea deal. The district attorney was accused of pressuring female defendants into granting sexual favors in return for leniency.

The hearing was held as Louisiana was nearing the peak of another surge in COVID-19 cases, with new cases and hospitalizations climbing.

Smith was confirmed as a 5th Circuit judge in 1987 after being nominated by then-President Ronald Reagan.

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