Beginning this week and through the end of the year, this blog will summarize the top judicial ethics and discipline stories of 2014.
“Commit the oldest sins the newest kind of ways”
From Shakespeare, Henry IV, Part 2, Act 4, Scene 5
Inappropriate private comments by judges are not new to the internet age, but the ease of communication in electronic formats makes such comments more likely to become public. Several judicial discipline cases from 2014 illustrate the perils of a judge forgetting his (in all three cases) judicial position while sitting at the keyboard or tapping on a keypad.
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Based on a “report not contested” filed by the Judicial Discipline and Disability Commission, in September, the Arkansas Supreme Court removed Judge Michael Maggio from office for comments he posted as “geauxjudge” on “tiger droppings,” a public Louisiana State University sports fan forum page, and other misconduct. In March, after he was identified as “geauxjudge” by a blog called the Blue Hog Report, the judge had dropped out of the race for the Court of Appeals.
Since November 2005, the judge had made posts on the fan-site from his telephone, his personal home computer, or the office computer owned by the county and supplied to his circuit court office. The Commission found that the judge’s comments were not anonymous, stating “it took little time once the posts were sorted to find numerous facts in the posts that proved your actual identity.” The Commission gave examples of the hundreds of posts the judge made, including comments on a closed adoption by actress Charlize Theron; on pending cases; expressing his wish to be assigned cases involving attractive women, sexual subjects, and nude pictures; giving legal advice on how to beat a DWI charges; and with inappropriate gender, racial, and sexually related statements.
In its letter to the judge, the Commission stated that the comments were “much more than a problem of taste, decorum or personal opinion.”
It adds up to someone who demonstrates that he is unfit for the bench. Your actions offended and, even worse, gave rise to legitimate concerns that bias would overcome fairness and due process for a large number of potential litigants and their attorneys. Even the cases that you decided based purely on the facts and the law are now suspect by parties who look at the kind of statement you made. Whether it is race, gender, sexual orientation or specific subject matter, your comments made it impossible for you to be taken seriously as a judge who would be fair and impartial. You essentially disqualified yourself from the bench.
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The Pennsylvania Supreme Court relieved Justice Seamus McCaffery of his duties with pay pending an investigation of hundreds of sexually explicit e-mails he exchanged with members of the state attorney general’s office and other allegations. (The e-mails are part of a wider scandal involving the attorney general’s office, which became known as “porngate” and surfaced during a review of the investigation of Jerry Sandusky.) The extent of the justice’s involvement and the content of the e-mails have not yet been subject to fact-finding and may never be; after the Court’s order, Justice McCaffery resigned and agreed not to seek senior judge status or election to judicial office, and the Judicial Conduct Board dismissed its investigations.
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Hundreds of e-mails were also the basis of the reprimand of retired judge Richard Cebull by the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States, adopting and publishing an order of the 9th Circuit Judicial Council. Cebull had sat on the U.S. District Court for the District of Montana.
In February 2012, then-judge Cebull, using his court e-mail account, forwarded to six friends a message under the subject line, “A MOM’S MEMORY.” The message was:
Normally I don’t send or forward a lot of these, but even by my standards, it was a bit touching. Hope it touches your heart like it did mine. A little boy said to his mother, Mommy, how come I’m black and you’re white? His mother replied, “Don’t even go there Barack! From what I can remember about that party, you’re lucky you don’t bark!”
At least one of his friends forwarded the judge’s e-mail to others, and it reached a newspaper reporter, who published an article quoting it. According to the article, the judge told the reporter that he sent the e-mail because it was “anti-Obama.” The judge is quoted as saying: “The only reason I can explain it to you is I am not a fan of our president, but this goes beyond not being a fan.” The Judicial Council noted the “nationwide media coverage” generated by the e-mail.
An investigation uncovered hundreds of inappropriate e-mails sent by the judge from his federal account. The Council found:
The majority of the emails were political in nature. Whether they were cast as jokes or serious commentary, the emails showed disdain and disrespect for liberal political leaders. A significant number of emails were race related. Whether cast as jokes or serious commentary, the emails showed disdain and disrespect for African Americans, Native Americans and Hispanics, especially those who are not in the United States legally. A similarly significant number of emails related to religion and showed disdain for certain faiths. Approximately the same number of emails concerned women and/or sexual topics and were disparaging of women. A few emails contained inappropriate jokes relating to sexual orientation. Finally, a large number of emails related to pending legislation or an issue that could come before the court, such as immigration, gun control, civil rights, health care or environmental matters.
The investigation found no evidence of bias in the judge’s decisions.
The Judicial Council concluded that the “racist and political February 2012 email, particularly when coupled with the hundreds of other emails regularly sent from Judge Cebull’s court email account” “reflects negatively on Judge Cebull and on the judiciary and undermines the public trust and confidence in the judiciary.” Stating “even if Judge Cebull intended his emails to remain private, he was indifferent to their potential negative impact,” the Judicial Council “strongly” condemned his e-mail practices and found that he had “violated his pledge ‘to uphold the integrity and independence of the judiciary.’” The Council also found that, although a judge may have political opinions and share those opinions in private among friends, “disseminating political opinions via a court email account to court staff and to individuals outside the judiciary contravenes” Canon 5. Finally, the Council stated the judge “compounded his mistake . . . by making anti-Obama statements to reporters who called for comment on the February 2012 email.”
Other than the February 2012 e-mail, the specific contents of the e-mails were not disclosed.