Thursday, Apr 18, 2024

Gov’t Brief Opposing Rubashkin Petition Distorts The Record

The Government Brief opposing Sholom Rubashkin's petition to the Supreme Court to review his case (Writ of Certiorari), was finally submitted last week after four extensions, and was surprisingly devoid of fresh arguments. Instead, it took refuge in a well-worn strategy that has been a government hallmark in the Rubashkin case: blurring and manipulating the facts to prop up arguments that would otherwise fail. The government brief needed to counter the two key arguments presented in the “cert” petition by attorneys Paul Clement and Nathan Lewin. The first was that Judge Reade should have recused herself and her failure to do so rendered the trial fundamentally unfair, which constitutes grounds for a retrial.

The second argument was that the Eighth Circuit failed to address the complaint that the trial judge had issued a sentence that was wildly out of proportion to the offense, while ignoring without explanation all mitigating reasons for a lesser sentence.


With regard to the first argument about new evidence that should have disqualified Judge Reade, the government had earlier rejected this claim as irrelevant. Even granting that such evidence existed, the government said, it would be sufficient to warrant a retrial only if it could point convincingly to the defendant’s innocence. In other words, the evidence would have to result in a “probable acquittal.”




But the Rubashkin team in its appeal to the 8th Circuit en banc and in its cert petition showed how this position conflicts with rulings by the Fourth, Ninth, and Eleventh Circuits, and is totally illogical. Aren’t determinations of the defendant’s guilt or innocence meaningless if the trial itself is a sham, as for example in cases of witness tampering or jury tainting?


In the same vein, since judicial neutrality “is so fundamental to a fair trial, its absence automatically requires reversal,” the Rubashkin team argued.


As other circuits have recognized, “the probable acquittal test makes sense when the newly discovered evidence concerns the defendant’s guilt or innocence, but is a complete misfit when the newly discovered evidence concerns the fairness of the trial.”


“The Eighth Circuit is simply wrong to insist on driving a square peg into a round hole,” the Rubashkin petition said. Had Mr. Rubashkin been prosecuted in any of the circuits that have properly interpreted Rule 33, “his new trial motion would have received the full airing that the interest of justice demands.”


In response, the government re-tooled its original position, trying to shore up its stance about the “probable acquittal” standard. It now agrees that certain kinds of evidence, such as proof that the jury or the judge was tainted, can indeed warrant a retrial–without offering proof of the defendant’s innocence.


But in the cases cited by the Rubashkin team as precedents, the new evidence had the likelihood of affecting the verdict, whereas Rubashkin himself, the government argues, admits the verdict was not affected by Judge Reade presiding over his trial.


This is a preposterous distortion. When did Sholom Rubashkin ever acknowledge that the trial’s outcome was not influenced by Judge Reade’s coziness with the prosecution?


Not only is this fiction flatly contradicted by facts on record, it flies in the face of everything we know about human nature.


Let’s take a closer look at this invention. It actually originated with the Eighth Circuit. Attorney Nathan Lewin was asked by Judge Riley at the June 2011 appeal hearing whether he could show evidence of prejudice in Judge Reade’s trial rulings that arose from her pre-raid meetings with prosecutors.  Lewin answered that while he had no concrete evidenceof prejudice, implications of bias ran straight through numerous rulings that harmed Sholom Rubashkin at trial. These harmful rulings were listed in several pages of the appellate brief, he told Judge Riley.  What did the Eighth Circuit judges do? They pounced on Lewin’s statement that he “had no concrete evidence,” taking it out of context and using it in their decision to reject the appeal.  “…We find no evidence that Judge Reade’s decision to remain on the case prejudiced Rubashkin’s verdict,” the panel said, pointing to Lewin’s failure to show evidence of actual bias. “Since Rubashkin concedes that his new evidence would not likely affect the jury’s verdict on retrial, the district court did not err in denying his Rule 33 motion.” That finding reemerged in the government’s current brief which asserts, absurdly, that Sholom Rubaskin himself never claimed that Judge Reade’s bias harmed him and influenced the trial’s outcome.  

Nothing could be further from the truth. But the lie is a convenient one and serves a dual purpose.


The lie is asking us to believe that Sholom Rubashkin himself accepts the guilty verdict as fair. That he believes that whether the judge was honest, crooked, biased, unbiased, made no difference at all in the outcome of his trial. Therefore this new evidence, inasmuch as it would not have affected the guilty verdict, is worthless. This is utter nonsense.  

The defense stated its confidence in both its written briefs and in oral arguments that given a fair trial, Sholom Rubashkin would be acquitted of all charges, just as he was acquitted of all 9311 State charges in the 2010 child labor trial.


The defense merely claimed that there was no need to prove the obvious: that a judge’s bias affects the outcome of a case by the discretionary decisions he or she makes. Any degree of prejudice can surely affect the outcome even if it cannot be proven.


The lie has a second purpose. It presumes as fact something fundamentally untrue about human nature; that one can become a stakeholder in a given operation and still be objective about its outcome.


This is a notion that defies the most elementary truths about how the human mind works. [In Jewish law, for example, it is a given that even the slightest connection a judge has to one of the two litigants affects objectivity, whether or not the judge is even aware of it.]


Lewin put this well when he explained the breakdown of reason in the Eighth Circuit’s decision.


“The court’s opinion denies a fundamental truth about human nature,” Lewin said at the time in an interview with Yated. “It’s axiomatic that a judge who should be recused but remains on the case is bound to cause the defendant harm. But can I prove it in the sense of pointing to a letter, an email, a verbal statement of malicious intention? No, I can’t. But that is not the issue.” 

“Judicial bias can manifest itself in ways that evade detection,” attorney Mark Weinhardt wrote in his brief to the 8th Circuit en banc. Since a judge has enormous leeway in discretionary rulings, she can easily influence the trial’s outcome while cloaking her bias in deceptive legal maneuvers. Forcing a defendant “to climb into the judge’s head,” as it were, and prove precisely how her pre-raid collaboration slanted the trial, is unreasonable.


The controlling issue, therefore, Lewin pointed out, is the appearance of bias; whether the judge’s neutrality would be doubted by the “average person on the street” hearing of the judge’s psychological investment in the law enforcement operation.


The defense has submitted affidavits from leading judicial and legal experts all attesting to the appearance of bias in Judge Reade’s conduct. These documents have been referenced before every court — yet to date they have been completely ignored by the District Court, the Appellate Court and the present response of the government to the Supreme Court.




One of the six amicus briefs submitted in support of Rubashkin’s cert petition summed up the arguments about the appearance of bias incisively.


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


The Bazelson 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.


The government cannot refute the claims of judicial impropriety so they simply fail to address them, as if they didn’t exist.




The second issue that Lewin and Clement felt warranted Supreme Court review was that Judge Linda Reade, in refusing to consider mitigating reasons for issuing a behind-the-guidelines sentence, failed to give her reasons for that refusal.


The claims go to a section of the Code which allows a defendant to make a request for less jail time than the guidelines indicate. Rubashkin’s cert petition to the Supreme Court pointed out that there is a conflict among the appellate courts as to whether or not the sentencing judge must explain the reasons for denial. Lewin and Clement suggested that this case would be a good vehicle for the Supreme Court to resolve the issue.


The government’s response to this argument can only be described as feeble. It asserts that the judge did in fact address the claim of a disproportionately harsh sentence, even though she failed to explain why she refused to issue a below-the-guidelines sentence in view of numerous mitigating reasons to do so.


Here too, in terms of the government’s consistent approach, obfuscation has been the norm. The most essential and persuasive arguments for a mitigated sentence are ignored. They are left totally unaddressed by the circuit court, the appeals court and in the government’s response to the cert petition.


An avalanche of communication by hundreds of acclaimed law professionals and experts in letters to the judge and in briefs to the various courts, all decry the sentence as grossly unjust. Those letters and briefs underscore the claim that the sentence is excessively harsh in contrast to the guideline recommendations.


None of the excellent arguments in these submissions have ever been addressed by the government.


The government response bears the signature of Assistant Attorney General Lanny Breuer together with that of the Solicitor General. (Mr. Breuer, son of Holocaust survivors, is currently embroiled in his own mess, thanks to his alleged role in the Fast and Furious scandal.) Breuer, on several occasions had been petitioned by the defense and others to investigate the glaring abuses in the Rubashkin case, but refused to get involved. His signature on the government response brief, however, signals that his don’t-involve-me stance has now shifted.


Considering the manipulation of the truth and the strategy of ignoring the issue that marks the government response, nothing much has really changed. The brief is unfortunately consistent with that attitude that has defined Breuer all along regarding the burning issues in the Rubashkin case: Stonewall. Ignore it. Maybe it will go away.




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