The U.S. Court of Appeals for the Fifth Circuit has turned down the appeals of two death row inmates who argued their convictions should be overturned because their trials were presided over by a disgraced former federal judge whom they allege was “impaired” during their proceedings.

Walter Smith, who served as a U.S district judge in Waco for 32 years, was punished by the Fifth Circuit in 2015 after it concluded he made unwanted sexual advances against a female court employee in 1998. The employee also alleged that Smith had been drinking before some of his interactions with her, and that Smith's court clerk had to cancel his hearings because he had “been in the hospital” and was “not functioning.” Smith retired from the bench in 2016, which allowed him to avoid impeachment and keep his lifetime salary.

In 2000, Smith presided over the trials of Christopher Andre Vialva and Brandon Bernard, who were convicted of capital murder and sentenced to death for killing Todd and Stacie Bagley on federal property during a carjacking, sentences the Fifth Circuit affirmed on direct appeal in 2003.

Vialva and Bernard both filed subsequent habeas corpus petitions before a district court in 2017, arguing that Smith was unfit to conduct proceedings in their cases because of his “impairments.” The motions also alleged Smith committed numerous errors during their trial and subsequent habeas proceedings, and attached several other documents to their pleadings, including the Fifth Circuit's order in Smith's misconduct proceeding, an excerpt of the deposition from the court employee who alleged misconduct against Smith, and a 2017 article from Texas Lawyer detailing Smith's misconduct proceedings and his decision to retire.

A district court judge denied Vialva and Bernard's successive habeas corpus writs for lack of jurisdiction, noting their merit-based arguments had already been decided in the case, and that their alleged procedural defects were simply an attempt to circumvent the limits Congress placed on successive habeas petitions.

In its recent decision, the Fifth Circuit panel agreed with the district court, and denied Vialva and Bernard habeas corpus review for a second time.

“Although they purport to attack the integrity of their prior habeas proceedings, Bernard's and Vialva's invocation of defective procedure rests substantially on a merits-based challenge. To begin with, evidence from Judge Smith's misconduct investigation does not credibly implicate the procedural integrity of Bernard's and Vialva's prosecutions or subsequent habeas proceedings,” the Fifth Circuit wrote in a per curiam opinion.

“Evidence that Judge Smith engaged in unrelated misconduct in 1998 or that he neglected certain recusal requirements during the 2014 misconduct investigation does not raise an inference of defects in the habeas proceedings at issue here,” the court concluded. “The allegations offer no evidence—beyond gross speculation—that Judge Smith was, as Bernard and Vialva repeatedly assert, 'impaired' or 'unfit' to oversee their 2000 trial and subsequent habeas proceedings.”

Rob Owen, a Northwestern Pritzker School of Law professor who represents Bernard on appeal, said his client will likely appeal the Fifth Circuit's decision to the U.S. Supreme Court.

“The question we don't know is if [Smith] was incapacitated at the time he was presiding over our post-trial challenges — there's good reason to be concerned that he was,” Owen said. “But since the district court didn't give us the opportunity to develop that fact, the record is silent on that. That's where we are.”

Jared Tyler, a Houston attorney who represents Vialva on appeal, did not return a call for comment.

Joseph H. Gay Jr., a Western District of Texas assistant U.S. attorney who opposed Vialva and Bernard's subsequent habeas petitions, declined to comment.