By Debbie Maimon – from this weeks Yated:

In a sign that the Rubashkin case continues to roil the highest ranks of the nation’s legal community, six amicus briefs from prestigious legal organizations and renowned legal authorities have called on the Supreme Court to grant the Rubashkin case a hearing.

The briefs are from former Solicitor General Seth Waxman, joined by 86 former DOJ officials and federal judges; the National Association of Criminal Defense Lawyers; The Washington Legal Foundation; The Association of Professional Responsibility Lawyers; a group of 40 legal ethics professors; and the Justice Fellowship.

Legal observers say it is unusual for so many amicus briefs to be filed at the “cert petition” stage, before the Supreme Court has granted a hearing. The issues of misconduct and gross sentencing disparity in the case were apparently so disturbing, they compelled legal advocacy groups and ethics experts to file earlier, to urge the Supreme Court to grant a review.

Experts who have read the briefs and noted the signatories’ names say the briefs are not merely casual expressions of support from prominent people. They are passionate and persuasive arguments that harshly criticize the rampant injustices in the case. They raise an alarm about the setting of dangerous precedents unless the injustices are remedied.

Taken together, the six amicus briefs hammer home a sense of outrage in top echelons of the legal community over the apparent disregard for judicial ethics and fair play that drove the misconduct in the Rubashkin case.

Amicus Curiae Target Judicial and Prosecutorial Misconduct

Three of the briefs focus on the questionable conduct of Judge Linda Reade and the failure of the 8th Circuit to address the serious claims of judicial and prosecutorial misconduct in the case.

The briefs severely criticize Reade for colluding with government officials in the Agripocessors raid, and then arranging matters so that she could preside over the prosecutions and trials–while hiding from the defense the extent of her collaboration.

They also admonish the 8th Circuit for insisting on a standard for new evidence in a Rule 33 new-trial motion that is wholly irrational when applied to the circumstances in the Rubashkin case.

According to the 8th Circuit’s rigid ruling, the discovery of judge-prosecutor collusion is not enough to warrant a new trial. Only evidence that can point to the defendant’s innocence can prevail in a Rule 33 motion.

But the Rubashkin position was that determinations of innocence and guilt are meaningless if the trial itself was fundamentally unfair.

The briefs call attention to vastly different applications of Rule 33 by other appellate courts that have granted a new trial when court proceedings were shown to be unfair, or to have violated federal law.

“Had the Rubashkin case been heard by a different court, one brief argued, the trial would have certainly been vacated. Shouldn’t the Supreme Court resolve the split among the courts and clarify Rule 33’s true intent?

Violation Of United States Code; Subversion Of Justice

Especially incisive is the brief authored by Seth Waxman, a former Solicitor General and prominent D.C. attorney, and signed by an impressive list of 86 former DOJ officials and federal judges. Among the signatories are 27 federal judges 2 attorneys general, 1 Inspector General, 2 FBI Directors, 4 Deputy Attorneys General and 1 Solicitor General.

The Waxman brief asserts that the Rubashkin “prosecution and sentencing conflict with the law… and strongly suggest that justice was subverted.”

The brief singles out Judge Reade’s secret meetings with the prosecution and her involvement in the government’s entire raid planning that destroyed all appearance of neutrality, when she presided over the trial.

The shattering of the appearance of impartiality violates the Unites States Code, the brief stated, yet the 8th Circuit glossed right over it.

Going even further, the brief attacks the unreasonableness of the 8th Circuit in closing its eyes to blatant evidence of judicial misconduct, insisting that no matter how compelling the evidence, it is worthless unless it can points to the defendant’s innocence.

What kind of democracy would we have if such a ruling were allowed to stand? It would mean that even in the face of indisputable evidence that a trial was a sham, the justice system has no remedy to offer.

The Waxman brief also criticized Judge Reade for an “absurdly inflated” and “highly disproportionate” sentence that “dwarfed” the sentences of other defendants convicted of similar crimes.

It said the Rubashkin case “presented an exceptional case for leniency” but Judge Reade ignored her judicial duty to consider the many mitigating factors.

‘Judge Reade Has Shaken The Public’s Faith’

Another brief, signed by 40 Legal Ethics Professors, was authored by Professor Lara Bazelon, a foremost legal ethics scholar, and noted criminal justice attorney Allison Ehlert.

The brief castigates Chief Judge Linda Reade and the Iowa prosecutors for “the serious violations of law and ethics that occurred as a result of the ex parte communications between them in the Rubashkin case.”

“Judge Reade has violated judicial neutrality, and has shaken the public’s faith in the integrity of the proceedings,” the brief asserts.

It notes the numerous calls from law professors, former Deputy Attorneys General, and former U.S. Attorneys, “for an investigation into the allegations that Judge Reade committed misconduct” and that “her failure to recuse herself” invalidated the trial.

The Bazelon brief, more than any other official document in the case, attacks Judge Reade’s assertions that she did nothing wrong, that the secret meetings were confined to “logistical issue of an administrative nature.”
“That is not what the record reveals,” the brief counters, quoting excerpts from the ICE memoranda that cast doubt on Reade’s rationale for her secret sessions with government officials.

Far from being limited to pure logistics, the ICE documents show that “the contacts between prosecutors and trial judge were extensive expansive, unrecorded and undisclosed, until after that same judge imposed an effective life sentence.”

‘This Evil Is On Full Display In The Rubashkin Case’

Secret communications between judge and prosecutors “create the appearance of collusion and bias, undermining the legal and ethical foundations” of the justice system,” the brief said. “This evil is on full display in Rubashkin.”

The Bazelon brief also stressed that whether the appearance of partiality on the part of the judge warrants that judge’s recusal should rest on whether “an average person on the street”–not the sitting judge herself–would suspect bias.

Yet Judge Reade used herself as the standard for evaluating her conduct, refusing to turn the case over to a different judge who could make an objective assessment.

Her analysis consisted of defending her actual conduct and dismissing the possibility that anyone could view that conduct differently.

Yet it is clear according to the ICE memoranda that even government officials and prosecutors would have trouble regarding Reade as unbiased. In the ICE documents themselves, she is characterized as a “stakeholder” in the investigation, “a description signaling “the Government viewed her as an ally rather than a neutral arbiter.”

Communications Went Far Beyond Logistics

The Bazelon brief is buttressed by a powerful affidavit from Professor Geoffrey Hazard, a renowned legal scholar who served as the principal architect of the Judicial Code and the American Bar Association’s Model Rules of Professional Conduct.

Hazard testifies in his affidavit that prosecutorial and judicial misconduct irrevocably tainted the Rubashkin case.

In essence, he said, “Judge Reade and the Government lawyers established and maintained a continuing relationship of substantial ex parte communications from the point when the Government planned the raid on Mr. Rubashkin’s enterprise through the filing of the charges against him.”

The communications went far beyond “logistics,” Professor Hazard said. “An important part of the program was orchestrating the arrests and prosecutions “so that they would be on Judge Reade’s docket, and not that of some other judge.”

It was apparently of the greatest importance to have a judge on board who would be invested in the Government’s success, particularly in the culminating event of its investigation–the Rubashkin trial.

Hazard criticized the 8th Circuit for making the issue whether the defendant’s new evidence would likely lead to an acquittal in a new trial.

“In my opinion, the issue is whether Defendant has made a showing that the judge’s failure to recuse herself was a structural defect that deprived Sholom Rubashkin, from beginning to end, of a fair trial.”

The evidence is certainly sufficient, the legal scholar said, to show that “this federal judge came to the proceeding with secret information” that to any reasonable person would suggest that “her ability to act with integrity and impartiality is impaired.”

Due Process Violated

A fourth brief filed by NACDL (National Association of Criminal Defense Lawyers) and Aleph Institute, authored by legal ethics expert Nathan Crystal, urged the Supreme Court to grant the Rubashkin petition in order to rule on the important issues regarding judicial recusal raised by this case.

It’s human nature that when people work together on a project they begin to consider themselves as part of a team with a common goal, the brief noted. In this case, the contacts were extensive enough for the judge to call for a “final game plan” at the end of a seven-month process.

“If the contacts were as innocuous as the district judge believed them to be, then why did she fail to disclose them? If they were not [innocuous], then it follows that an appearance of partiality, if not actual partiality, does exist.”

When the judge proceeded to trial with Rubashkin without disclosure of the extent of her contacts with the prosecutors, that created a clearly disqualifying appearance of

impropriety, the brief said:

“We do not know what was said between the prosecutors and the district judge, but given their extensive meetings together, that fact of her exposure to information about [Rubashkin], including the types of charges being contemplated and the nature of his business, would seem a foregone conclusion to any objective observer.

Justice Fellowship: 8th Circuit Failed in ‘Reasonableness Review’

The brief filed by The Justice Fellowship, authored by Washington attorney and sentencing expert Jeff Ifrah and attorney David Deutch, attack the procedural unreasonableness of Sholom Rubashkin’s sentence, and Judge Reade’s refusal to even consider imposing a below-Guidelines sentence.

The brief criticizes the 8th Circuit’s failure to give weight to the appeal’s argument that the massive sentencing disparity in the Rubashkin case–27 years for a first time, non-violent offender–are grounds to reduce the sentence, since the sentencing judge failed to justify the unduly harsh, disproportionate sentence.

Judge Reade in her sentencing memorandum refused to acknowledge the gross disparity of this draconian sentence, much less justify it as required by federal law.

The Eighth Circuit compounded the injustice by whitewashing it, declaring that Reade had discussed–and rejected–each possible basis suggested by the defense for lowering Rubashkin’s Guidelines sentence.

This was untrue, the brief asserted. In fact, Reade in her sentencing memo omitted all mention of the defense’s argument that a functional life sentence for a non-violent, first time offender created gross disparities with other sentences in similar cases.

The brief called on the Supreme Court to grant the Rubashkin “cert” petition, and to use the case as a vehicle to address severe problems with federal sentencing guidelines that everyone admits are in dire need of reform.

‘A TALE FULL OF SOUND AND FURY’

A fifth amicus brief by WLF, authored by Professor Doug Berman, a prominent legal scholar on sentencing; and attorney Cory Andrews, focuses on “the substantial flaws in the court’s sentencing of Sholom Rubashkin to a functional life sentence.”

The authors point out that now that federal sentencing guidelines are no longer mandatory but advisory, rigid adherence to them is not only unreasonable but wrong. Nevertheless, some appellate courts–among them the Eighth Circuit–continue the practice of always affirming within-Guideline sentences even when they make no sense.

“Due to the Eighth Circuit’s routine of always affirming within-Guideline sentences, Judge Reade approached the sentencing of Mr. Rubashkin as if only the Guidelines mattered. In turn, the Eighth Circuit affirmed an extreme prison sentence for Sholom Rubashkin, using the rubber-stamp approach it has adopted for within-Guideline sentences.”

The WLF brief urged Supreme Court review of the Rubashkin case, saying that “absent such intervention, the Eighth Circuit ruling will stand as a high-profile reminder that courts can feel free to treat Booker [Supreme Court ruling that instructs courts to regard the Guidelines as advisory, not mandatory] as merely a lengthy tale full of sound and fury, signifying nothing.”

Judge Required By Law to Self-Disqualify To Prevent Appearance Of Bias

The Association of Professional Responsibility Lawyers (APRL), authored by Professor William Hodes, a noted scholar on legal ethics, focuses on the argument that Judge Reade was obligated by law to disqualify herself from presiding at Sholom Rubashkin’s trial after months of planning the raid with the prosecution.

The brief noted that Congress in 1974 completely revised a section of the U.S. Code that made it obligatory for a judicial officer to disqualify himself in any proceeding in which a reasonable person, knowing the relevant facts, would expect the judicial officer to be privy to information that might influence his judgment.

“If such a person knows only that a judge is meeting secretly with one side of a case but not the other, and then not even telling the other side, he will surely believe the judge is “on the team” of the favored side, and will perforce question the judge’s impartiality,” the brief argued.

The brief cites as evidence of Judge Reade’s partiality the “extraordinarily long sentence” she imposed on Sholom Rubashkin. The sentence flew in the face of an outcry from some of the nation’s most prominent legal authorities.

If the “average person on the street” also knew that six former Attorneys General, from both major political parties, wrote to Judge Reade recommending that a short term of years for Rubashkin would serve the needs of justice, and she closed her eyes to this advice, “they might have different questions to ask about Judge Reade’s impartiality,” the brief said.

“Perhaps they might say, “Judge Reade gave Sholom Rubashkin 27 years? Maybe she has it in for the man.”

“I don’t know whether [Rubashkin’s treatment] by the court was anti-Semitism or anti-Easternism or anti-New Yorkism or anti-outsiderism, but it was anti-something. And it can’t be explained on principles of justice,” said Harvard Law professor Alan Dershowitz, one of the signatories on the Bazelson amicus brief.

“The Rubashkin case is a cautionary tale about the appalling miscarriage of justice that can happen when the judiciary and executive branches are ‘married’ to each other,” said Jeff Ifrah, co-author of the Justice Fellowship amicus brief, in an interview with Yated.

“It falls to the Supreme Court to correct this subversion of justice,” Ifrah said, and in so doing, to send a message that “maintaining the integrity of the courts” and their separation from the executive branch is vital to a healthy democracy.

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