Wednesday, Jun 19, 2024

Burst Of Advocacy For Rubashkin Following Amicus Curiae Filings

The May 4 filing of six amicus briefs calling on the Supreme Court to grant the Rubashkin case a hearing has triggered a spate of articles from prominent legal personalities supporting the cause, with several focusing on the prosecutorial and judicial misconduct in the case. The burst of advocacy for Sholom Mordechai Rubashkin coincides with congressional scrutiny of the issue of prosecutorial misconduct which many say plagues the nation's courtrooms. The problem has become a hot-button issue in the wake of the investigative report condemning prosecutorial misconduct in the high-profile Stevens case. Ted Stevens was a former senator of Alaska whose conviction on fraud charges was vacated by Attorney General Eric Holder, after revelations surfaced that prosecutors had withheld important evidence from the defense.

The uproar over prosecutorial misconduct in the case led to the crafting of a congressional bill aimed at curbing the overzealousness of federal prosecutors who ignore their duty to seek justice, and instead pursue victory at any cost.



In an article in the National Law Journal titled “Prosecutorial and Judicial Misconduct”, renowned attorneys Alan Dershowitz and Ronald Rotunda cited findings that suggest that overzealousness and foul play by federal prosecutors are more common than the public would like to think.


As a prime example, the authors highlighted the Rubashkin case, stressing that ethics and legal violations by the prosecutors were made all the more egregious by the fact that “the judge herself was part of the problem.”


“Judge Linda Reade did more than impose a disproportionate 27-year sentence,” the attorneys noted in a thumbnail sketch of the case. “Defense lawyers learned that Reade, over a six-month period, had been actively engaged in planning the Agriprocessors raid.”


“E-mails and affidavits showed that, long before the raid occurred, Reade met with ICE agents to discuss [a wide range of information] “related to the investigation and operation. She was essentially part of the prosecution team.”


This point was reinforced by the Bazelon amicus brief which noted the special efforts made by Judge Reade and the U.S. Attorney’s Office to have all the court proceedings related to the Agriprocessors prosecutions assigned to Reade’s docket.


The judge and the prosecutors should have notified Rubashkin’s lawyers that she had participated in planning the raid so that they could move to recuse her, Dershowitz and Rotunda stated. “Failure to do so was prosecutorial and judicial misconduct.”


“The Supreme Court should decide to hear this case and use it as a vehicle to examine cozy relations between a prosecution that was too zealous and a judge who was too involved in pretrial prosecution strategies,” wrote Dershowitz and Routnda.


The authors quoted the Iowa legal director of the American Civil Liberties Union, one of the groups that filed an amicus brief on behalf of Rubashkin, who warned that the judge’s involvement with the prosecution “immediately gave the appearance of unfairness.”


“It was more than appearance. It was actual unfairness,” the legal experts asserted.




Judicial misconduct in the Rubashkin case was the subject of a scathing article last week by Doug Berman, a respected authority on sentencing issues. In an article, “When The Judge Joins the Team,” Berman took aim at the cynical tactics used by law enforcement to trap Sholom Rubashkin.


“The Big Boss of this heinous kosher criminal conspiracy, Sholom Rubashkin, had to go down, which turned out not to be as easy as it seemed,” Berman wrote in a widely read criminal defense blog, “Simple Justice.” He slammed the government’s overzealous tactics in finding a scapegoat to justify the sensational, multi-million dollar ICE raid.  


“Trying every imaginable variation of a crime, the feds finally nailed Rubashkin on a hyper-technical bank fraud charge for certifying to his bank that his business was absolutely legit, when in fact there was a sneaky illegal working inside. Got him!


“Iowa then charged Rubashkin with over 9,000 labor offenses, and couldn’t nail down a single one.”


The legal scholar then lifted the veil on the inner workings of federal prosecutions. He explained that judges are routinely involved in much of the preliminary investigation that culminates in a trial, and how this system, although sanctioned by law, can–and often does–undermine a trial’s fairness.




The author described the lengthy process of building a federal case, in which “judges regularly become a cog in the wheels of prosecution.”


“Federal cases involve months, if not years, of investigation before the takedown, including warrants of all stripes. Nobody gets charged until the agents have locked down their case, met all the defendant’s friends, neighbors and family, and discovered the goods on every person the defendant ever talked to.


The judge who will hear the case against the defendant is the same one who signed all the warrants and heard all the allegations. By the time a defendant “gets trotted into the well,” the judge has absorbed every aspect of the prosecution’s case.


“But this could be fixed, you say. Just have a different judge sign off on the cases than the judge who will preside. That would help but it suggests that federal judges aren’t fair enough to look beyond rank prosecutorial allegations and give the defense a full and fair hearing.”


This is where the system hinges on what the author calls “legal fiction” — the illusion that it is possible for a judge to be exposed to volumes of incriminating information without becoming biased.


“Judges are fair, as a matter of law,” Berman notes sarcastically.


”Ugly as it may be to have a judge who is supposed to be fair, deeply embedded in the case long before anyone is arrested, is not only normal [in American jurisprudence], but utterly unchallengeable. Judges rule on the validity of their own warrants all the time. They pass judgment on their own judgment every day.


“This stuff makes defense lawyers nuts. We know what we’re staring at and we know there is nothing we can do about it. We can make the motion for recusal, but it ain’t happening.”


What does happen when defense lawyers move for recusal is that the motion often boomerangs. “The ‘mean’ things we say about the judge will only make him our mortal enemy for life,” Berman says, adding sardonically, “although also as a matter of law, of course no judge ever takes anything personally.”


Berman’s critique of the system whereby federal judges are presumed to be above human frailty is echoed in the Justice Fellowship amicus brief submitted to the Supreme Court urging the Court to grant the Rubashkin “cert” petition.




“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 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.”


“We hope that the Supreme Court accepts this case and takes a step toward curbing the excessive concentration of power in the hands of federal prosecutors and judges. “



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