Monday, Jun 24, 2024

Government Removes Opposition to Amicus Curiae for Rubashkin

The U.S. government has done an about-face after initially attempted to silence the voices of friends-of-the-court - amicus curiae - in the Rubashkin case. The unprecedented move by federal prosecutors in Iowa to block three prominent legal organizations that argued powerfully in separate briefs for Sholom Mordechai Rubashkin's right to a new trial was roundly criticized. This week, the government changed its tune, granting permission for briefs by the ACLU and the Washington-based NACDL and WLF to be submitted to the Eight Circuit Court of Appeals. Among other contentions, the briefs accuse the Iowa U.S. Attorney's office and Chief Judge Linda Reade of engaging in months of improper ex parte discussions.

The amicus curiae briefs expose the flaws and misconduct in the prosecution, trial and sentencing of Sholom Mordechai and unanimously call on the court to vacate his sentence.


The practice of filing amicus curiae is a time-honored feature of American justice and has traditionally been respected and valued by federal courts. Brazenly disregarding this tradition, federal prosecutors in Iowa first argued that the briefs filed in support of Sholom Mordechai presented nothing new and merely repeated arguments raised by the appeal.


In their Motion to Resist, the Iowa U.S. Attorney’s office stated that any new arguments presented did not justify the briefs because they are “so lacking in merit that they were deliberately passed up by the other party’s lawyers.”


The motion of “Withdrawal of Objections to Filing Amicus Curiae Briefs” was filed by Attorney Mr. Peter E. Deegan, Jr. on Monday, March 7. In its motion, the government contended that since it was decided that a three-judge panel would review whether the appeals court would see the briefs, there was “the possibility the briefs may be considered by the Court without the benefit of any government response” and “the United States withdraws its objection to the filing of amicus briefs by the Washington Legal Foundation, et al. (Entry No. 3743162), American Civil Liberties Union of Iowa (Entry No. 3743169), and National Association of Criminal Defense Lawyers (Entry No. 3744356). This will allow the United States to include any response to those briefs in its brief on the merits due March 11, 2011.”


An amicus curiae educates the court on points of law that are in doubt, or raises awareness about some aspect of the case that the court might otherwise miss. The practice has traditionally played a role in shaping federal legislation in many high-profile cases.


The filing of an amicus curiae has to be with the consent of both parties in the litigation. It operates not as a legal right but as a privilege granted by the court. Even in rare cases when one party withholds consent, in the case of a brief filed by a respected organization, the court generally grants permission to file the brief.


The NACDL brief accuses Reade and federal prosecutors of “ethical misconduct.” It states that Reade acted “as an arm of the prosecution” and “shows that the Chief Judge was prejudiced in favor of the government and thus must disqualify herself.”


“She should not have discussed strategies and the ongoing investigation and other issues with prosecutors [and then presided at the trial],” the NACDL brief says. The brief states that Reade compounded this wrongful conduct by concealing it from the defense.

Even worse, when confronted by disclosures of her behavior in the ICE documents in Sholom Mordechai’s new-trial motion, Reade sweepingly dismissed the allegations as untrue.

Legal advocacy groups like the above-mentioned groups and a growing number of congressmen have rallied behind Sholom Mordechai’s appeal because they see it as a test case with broad implications for the American public.


The WLF brief calls for the Court of Appeals to remand the case to a new judge for re-sentencing. It says that the 27-year jail sentence reflects serious errors in Judge Reade’s sentencing procedures as well as violations of the Federal Sentencing Guidelines.


The brief slams the arbitrariness and “unreasonableness” that tainted Reade’s calculations and led to a grossly disproportionate sentence.


The ACLU brief argues for vacating the conviction, insisting that Judge Reade was wrong to preside over Sholom Mordechai’s trial after helping to plan the raid of Agriprocessors and the arrests that led to his prosecution.


The brief says that the likelihood of bias was enough to require her to recuse herself from the case, and therefore justifies a new trial for the defendant.


With the heightening of legal and congressional protest against the perversion of justice in a dusty corner of Iowa, a growing list of congressmen are petitioning Attorney General Eric Holder to investigate the Rubashkin case.


To date, 42 members of the US House of Representatives have sent letters. Many of these letters protest the judge’s secret meetings with prosecutors in the months before the raid, as well as the unreasonably severe sentence.






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