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January 18, 2014

After new revelations, should every defendant ever sentenced by Judge Cebull seek resentencing?

The question in the title of this post is prompted by this new AP report headlined " "Federal judge sent hundreds of bigoted emails," which is a summary of this lengthy report released on Friday by the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States.  Here are the basics:

A former Montana judge who was investigated for forwarding a racist email involving President Barack Obama sent hundreds of other inappropriate messages from his federal email account, according to the findings of a judicial review panel released Friday.

Former U.S. District Judge Richard Cebull sent emails to personal and professional contacts that showed disdain for blacks, Indians, Hispanics, women, certain religious faiths, liberal political leaders, and some emails contained inappropriate jokes about sexual orientation, the Judicial Council of the 9th U.S. Circuit Court of Appeals found.

Many of the emails also related to pending issues that could have come before Cebull's court, such as immigration, gun control, civil rights, health care and environmental issues, the council found in its March 15, 2013, order. The investigation looked at four years of Cebull's personal correspondence sent from his official email account. Investigators also reviewed his past cases and interviewed witnesses.

The investigation found no evidence of bias in Cebull's rulings or sentences, and the witnesses generally regarded him as a "good and honest trial lawyer, and an esteemed trial judge," according to the report.

The 9th Circuit council issued Cebull a public reprimand; ordered no new cases be assigned to him for 180 days; ordered him to complete training on judicial ethics, racial awareness and elimination of bias; and ordered him to issue a second public apology that would acknowledge "the breadth of his behavior." The panel said impeachment was not warranted because Cebull did not violate federal or state law, though two of the judges on the council said they would have asked for his resignation.

But none of the sanctions took effect and the findings did not become public until Friday on the order of a national judicial review panel. Cebull announced his resignation March 29, two weeks after the judicial council issued its order. After Cebull retired May 3, the 9th Circuit council vacated its previous order and wrote a new one calling the complaints against Cebull "moot" because of his retirement....

Cebull himself and 10 others requested the misconduct investigation after The Great Falls Tribune reported Cebull forwarded an email in February 2012 that included a joke about bestiality and Obama's mother. Cebull apologized to Obama after the contents of the email were published. He told the 9th Circuit panel that his "public shaming has been a life-altering experience" and that he was "acutely aware that each day in my court is the most important day in someone's life."

Cebull was nominated by former President George W. Bush and received his commission in 2001. He served as chief judge of the District of Montana from 2008 until 2013.

I am quite surprised to hear that Judge Cebull sent so many inappropriate e-mail from his chambers, though I am not at all surprised that an investigation by other judges reached the (self-serving) conclusion that there was "no evidence of bias in Cebull's rulings or sentences."  In my view, any defendant (especially any female or minority defendant) still sitting in federal prison unhappy with a past sentencing decision made by Judge Cebull could and should use this new report to at least request a focused review of any of his specific sentencing outcomes.

Prior related posts (from 2012) concerning Cebull controversy:

January 18, 2014 at 09:48 AM | Permalink


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Is there someway that the 9th Circuit could create an independent review board that could take another look at all of his past sentences as opposed to relitigating?

Posted by: Matt Raby | Jan 18, 2014 9:53:56 AM

No review of decisions within professional standards of due care. Mandatory guidelines would cancel the effects of bias. This is a witch hunt. I not only want most pro-criminal judges decisions reviewed, I want most judges lashed to remind they are to apply the law, not make it, and to stop promoting self interest by increasing the crime rates. To deter. I am not getting what I want, nor should the left wing ideologues.

Posted by: Supremacy Claus | Jan 18, 2014 10:59:39 AM

Somebody needed to take Zeebull by its horns a long time ago. But, on the other hand, he has free speech rights. Did any single email refer to a defendant?

Posted by: Liberty1st | Jan 18, 2014 1:37:16 PM

I wonder if the NSA got ahold of his emails.

Posted by: Liberty1st | Jan 18, 2014 1:38:07 PM

The main takeaway from this story is that the Senate was very unwise to lower the threshold for confirming lower court judges. Evidently, it needs to be higher, not lower.

P.S. As to defendants who want to have their sentences re-opened on account of rank speculation, I would think they would have about the same chance as black or Hispanic AUSA's who wanted adverse judgments in cases they were handling re-opened on the same speculative basis.

Good luck, guys.

Posted by: Bill Otis | Jan 18, 2014 2:08:46 PM

Bill Otis, I'm one of the few people here who usually agrees with you, but I disagree that the "main takeaway" here is that the Senate was very unwise to lower the threshold for confirming lower court judges. I assume you are referring to the recent change in the filibuster rules because nothing changed with the threshold for confirmations. It still takes the same number of votes to confirm as before. Judges will still go through the same vetting process, but now the minority party can't prevent an up-or-down vote for purely political reasons that have nothing to do with a person's qualifications. If you meant something else by "threshold" then maybe I misunderstood. I doubt that different filibuster rules would have prevented this judge from being on the federal bench.

Posted by: Domino | Jan 18, 2014 2:59:15 PM

Domino --

Right you are. I should not have said "confirm." I should have said "effectively confirm," and, yes, I was referring to the filibuster rule change.

Although I am ordinarily a pretty firm majoritarian (and thus oppose, for example, judicial nullification of death penalty statutes), there are instances in which requiring a super-majority is wise.

Federal judges sit for life and wield enormous power; and the Senate is designed to be difficult for legislation (and nominations) to negotiate. It was for this latter reason that the filibuster had such a long pedigree (over 200 years if I'm not mistaken). I would think a long, long time before allowing an ill-tempered partisan hack like Harry Reid to change something of that vintage.

The restraint with which the filibuster gets used counts in whether it should survive. Recently, since judicial nominations became more politicized, there has been less restraint, I agree. On the other hand, its more robust use is justified in part by the increasingly political role judges seem to think is proper for them to take.

Until the latter ebbs, I would keep the filibuster for judicial nominations.

Posted by: Bill Otis | Jan 18, 2014 5:29:45 PM

I agree that the fillibuster should be intact, as far as calling reid a partisan hack, I'm pretty sure the GOP can be called that as well, however its a change of events when the democrats fillibustered bush nominess. In fact back in the day, liberal organizations such as people of the american way, defended a fillibuster and sounded the alarm about "lifetime appointments" on circuit courts in particular. The senate is not democratic, one state with fewer people get the same vote as folks with larger people. There may be a positive to this arrangement, but the answer is not to just require a simple majority.

The fillibuster is kinda odd and may need some reform, but the writers of the Constitution did require 2/3's vote for things like removal from ofice, so the idea of a supermajority is not completely foreign to america.

Posted by: Kris | Jan 19, 2014 4:09:41 AM

Bill, your response here is truly weird given that fillibuster rules obviously did not prevent someone like Cebull from getting on the bench. In addition, I have long feared that because the post-Bork nomination/fillibuster dynamics created a less transparent, back-room, kibuki theater approach to the judicial selection/confirmation process, it has been more likely that "bad judges" like Cebull would slip through the cracks because they were good at playing politics rather than good at calling balls and strikes as a neutral umpire.

In addition, Bill, I am surprised you did not say the main takeaway here was to reinforce your claims "that we cannot trust federal judges" to exercise sentencing discretion wisely. I cannot help but make the observation that, while it seems you loathe judges (like (former prosecutor) Judge Gleeson) who will use their discretion to give sentences below the guidelines, you are less troubled by the prospect of sentencing discretion being used (and abused) by judges who share your disaffinity for those on the left.

I am disappointed, Bill, that you used this story as a chance to beat up on Reid rather than those who actually nominated and confirmed (and covered for) Judge Cebull.

Posted by: Doug B. | Jan 19, 2014 7:03:56 AM

Is Judge Cebull a Cherokee Indian? I have a friend with that last name from out west who is a member of the Cherokee Nation. Great guy.

Posted by: Liberty1st | Jan 19, 2014 10:00:07 PM

Doug --

I'm squeezed for time just now, so I'll respond for the moment just to your first sentence: "Bill, your response here is truly weird given that fillibuster rules obviously did not prevent someone like Cebull from getting on the bench."

Wrongo. It did not prevent Cebull himself from getting on the bench, and he would have had an even easier time of it with no potential filibuster barrier. However, you have absolutely no way of knowing whether it prevented people "like" Cebull from getting appointed, and I can tell you from experience (as if you couldn't guess) that the prospect of not getting through the Senate has prevented dozens of candidates with, shall we say, questionable views from even getting on the short list for even being nominated.

Other than that, you nailed it.

Posted by: Bill Otis | Jan 19, 2014 11:02:12 PM

I have to agree with bill. it worked great for a couple of centuries. Seems the big problems only started when they changed the rules on HOW to do one. Think they would have done much better to just take the rules back to the old ones. IF you want to do one fine. Stand your ass up in front and TALK, TALK, TALK, TALK, not send in a damn note!

Posted by: rodsmith | Jan 20, 2014 2:19:17 AM

Can you provide some examples, Bill? I know only of some good folks --- e.g., Estrada --- harmed by the old filibuster rules, so I may see its problems more than its benefits. Can you provide more specifics as to it's benefits?

Posted by: Doug B. | Jan 21, 2014 7:32:20 AM

It is hard to know how much of an outlier Judge Cebull was in his emailing practices unless someone does an equally exhaustive review of the emailing practices of some statistically representative sample of other Article III judges, isn't it? Is the Judicial Conference doing that? Will they advise the public of the results? Is the problem only emails sent from the official work account, or should we check gmail etc. accounts as well?

I'm also not sure how future problems of this kind can be avoided (whatever the filibuster rules are or aren't) unless the Judiciary Committee staff starts asking for and reviewing X years worth of email archives from all nominees (although in such an environment presumably the White House people will have already done so as part of the vetting process before the nominee goes to the Senate?). I suppose it would be interesting to know whether the background-check process as it operated when Judge Cebull was nominated included the FBI asking various business/social acquaintances whether the prospective nominee was known to tell "inappropriate" jokes (you'd think that would have been on the list by 2001) and if so what the results were and whether (by comparing the list of such interviewees and their answers to the list of the judge's subsequent email correspondents) it seems likely that the FBI got accurate information on that score.

Posted by: JWB | Jan 21, 2014 2:51:14 PM

The idea that routine filibustering reflects an important, centuries-long tradition of quality control is not well-supported.

Posted by: Michael Drake | Jan 22, 2014 1:29:14 PM

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