Prosecutorial Misconduct In The Headlines: Rubashkin Case Cited

Iowa’s Justice System Tainted

 

The USA Today report said that an investigation had uncovered over 200 cases of prosecutorial misconduct since 1998. To the embarrassment of Iowa’s highest law enforcement officials, ten of these cases were tried in Iowa’s federal courts.

 

“Prosecutorial misconduct by U.S. attorneys in Iowa has triggered serious consequences,” the Des Moines Register article noted.

 

Iowa’s court records show that in most of cases where misconduct was found, it was the presiding judge who blew the whistle on the errant prosecutor. This resulted in charges being thrown and some defendants winning reduced prison sentences. Others were granted a new trial and one defendant was fully acquitted.

 

Rubashkin Case Unique

 

In the Rubashkin case, by contrast, defense attorneys have demanded a new trial based on evidence that not only did prosecutors transgress the law in prosecuting Sholom Mordechai, but the presiding judge herself joined them.

 

Judge Linda Reade held secret meetings with prosecutors and collaborated with them on the 2008 immigration raid that targeted Sholom Mordechai, FOIA documents released by the government show.

 

Far from calling prosecutors to task for an overzealous prosecution that robbed the defendant of due process, Judge Reade helped engineer the legal process by which this was accomplished.

 

The FOIA documents that reveal this shocking information had been withheld from the defense team by the Immigration and Customs Enforcement Agency (ICE). They were only released many months after Sholom Mordechai’s trial, to avoid a pending lawsuit against the government filed by Sholom Mordechai’s attorneys.

 

The documents prompted lead appellate attorney Nathan Lewin to file an emergency motion for a new trial in early September, based on evidence that Judge Reade had held ex parte (secret) meetings with the prosecutors that she had kept secret from defense counsel.

 

Had the scope of her participation in the prosecutors’ planning of the raid been disclosed as required by law, Rubashkin attorneys Guy Cook and Montgomery Brown would have demanded her recusal, the lawyers wrote in a sworn affidavit to the court.

 

Nationally Acclaimed Experts Slam Prosecutors, Judge

 

The new-trial motion [Motion 33] was buttressed by a powerful affidavit from one of the nation’s most acclaimed legal ethics experts, Mark Harrison, who harshly criticized Judge Reade for serious judicial misconduct in the case.

 

Motion 33 was followed by a request to the Eighth Circuit for a stay of the appeal. It included a searing affidavit by a second renowned judicial expert, Professor Stephen Gillers, who concluded that federal prosecutors had broken the law by frequently meeting with Judge Reade and keeping the meetings secret from the defense.

 

Under Supreme Court precedents, these errors entitle the defendant to a new trial, legal experts said.

 

New Deadline For Appeal

 

Although Sholom Mordechai’s appeal was supposed to have been filed by September 7, he won a six-week “stay” (postponement) from the Eighth Circuit Court of Appeals based on the argument that new evidence had been uncovered that invalidated his trial and conviction.

 

The court of appeals extended the deadline for the appeal to November 18, by which time Judge Reade will have ruled on Motion 33 – the emergency request for a new trial.

 

Those familiar with Judge Reade’s conduct believe she is too tainted by prejudice to weigh any aspect of the case fairly, much less the evidence that she herself acted improperly.

 

The motion filed by the appellate team requested that Reade turn the matter over to an impartial judge, but it is doubtful that Reade, known for her inflexibility and need for control, will willingly relinquish her authority over the case.

 

“This is a person who has wielded absolute power as Chief Judge of the Northern District for far too long,” commented a lawyer in the same district who asked not to be identified.

 

Further Disclosures Threaten Reade, Prosecutors

 

“Someone in her position would be well-advised to look down the road a bit,” another criminal defense lawyer in Iowa told Yated. “Imagine the following scenario: The court of appeals studies the new-trial motion as well as the government’s response that it’s all nonsense – the judge did nothing improper, it’s been blown up out of proportion to get Rubashkin off the hook, etc.

 

“So how do they decide what really happened? The FOIA documents were so redacted (full of blacked-out sections), it’s impossible to get enough information from them to base a decision on whether there was judicial and prosecutorial misconduct here.

 

“The only way to get the truth is to set up evidentiary hearings and subpoena witnesses. Who do you think will be subpoenaed? Imagine Judge Reade on the witness stand. Imagine all those who planned the raid, including ICE people, U.S. marshals, prosecutors Deegan and Williams, assistant U.S. Attorney Richard Murphy.

 

“This will go all the way up the ranks to [Iowa U.S. attorney] Stephanie Rose herself. This whole stinking mess will unravel. Is that what they want?”

 

If the motion for a new trial is denied, it will be combined with the appeal and filed with the Eighth Circuit in November, defense attorneys said.

 

Misconduct In Rubashkin Case Symptomatic Of Nationwide Problem

 

The Iowa cases reviewed by USA Today highlight a disturbing pattern that is tainting this state’s highest law enforcement office. But prosecutorial misconduct is not limited to Iowa or any single state, said Case University law professor and legal expert Bennett Gersham.

 

“It is systemic,” Gersham said, meaning prosecutorial abuse infests the entire system of American justice. “The system in unable to control this type of behavior. There is no accountability.”

 

He and Alexander Bunin, the chief federal public defender in Albany, N.Y., called USA Today’s findings “the tip of the iceberg,” because many more cases are tainted by misconduct than are found.

 

“Federal prosecutors are supposed to seek justice, not merely score convictions,” the authors of the exposé wrote. “But an in-depth investigation found that prosecutors repeatedly have violated that duty in courtrooms across the nation.”

 

In some cases, federal prosecutors hid or faked evidence or lied to the jury. In others, they allowed or encouraged witnesses to lie under oath, tainted juries with prejudicial comments, reneged on plea bargains and committed other violations of ethics.

 

“The abuses have put innocent people in prison, set guilty people free, destroyed lives and cost taxpayers millions of dollars in legal fees and sanctions,” the article said.

 

Boosting Public Awareness

 

The USA Today report was hailed by many who have been trying to raise public awareness about the corruption embedded in the system that allows powerful, win-at-all-costs prosecutors to subvert justice in countless courtrooms across the country.

 

For those conditioned to esteeming officers of the law, the awareness of corruption hiding behind the mantle of authority is deeply demoralizing.

 

Legal experts have warned for decades that misconduct by prosecutors threatens the Constitution’s promise of a fair trial. Congress in 1997 enacted a law aimed at protecting a defendant’s constitutional right to due process, and ending such abuses.

 

Yet in the years that followed, some of the nation’s most elite and powerful law enforcement officials themselves were found to have violated laws or ethics rules.

 

“Such abuses probably infect no more than a small fraction of the tens of thousands of criminal cases filed in the nation’s federal courts each year,” the USA Today article said. But the transgressions identified by the researchers were so serious that, in each case, judges threw out charges, overturned convictions or rebuked prosecutors for misconduct.

 

Sholom Mordechai Pleaded For FOIA Documents

 

In many cases, misconduct is exposed only because of vigilant scrutiny by defense attorneys and judges – and at times, the defendant himself.

 

In the Rubashkin case, Sholom Mordechai had pleaded for access to the ICE documents in the months leading up to his trial. His lawyers’ requests were repeatedly rebuffed by government officials. Only after the defense team sued the government, did ICE begin to cooperate, releasing heavily redacted documents in a slow trickle.

 

Consisting of volumes of information recorded on CDs, the material was mailed to Sholom Mordechai’s attorneys. Appellate attorney Nathan Lewin began reviewing the documents in August, nine months after Sholom Mordechai was incarcerated following his conviction for bank fraud. Lewin said he was “astounded and thoroughly shaken” by what he found.

 

A few weeks later, he and fellow counsels Guy Cook and Montgomery Brown filed Motion 33, demanding a new trial based on evidence of collaboration between Judge Reade and federal prosecutors.

 

Prosecutors Escape Punishment

 

One of the major flaws in the system exposed by the USA Today article is that prosecutors, even when found guilty of misconduct, invariably escape punishment.

 

Drawing on state bar records, the article identified only one federal prosecutor who was barred even temporarily from practicing law for misconduct during the past 12 years.

 

In that one case, the punishment lasted only a year. In that case, Florida’s Supreme Court found that Karen Schmid Cox had let a witness lie about her name during a trial, making it impossible for defense attorneys to check the witness’ background.

 

If they had, they would have found that the witness had been previously accused of lying to a judge and filing a false police report.

 

Justice Dept. Stung By Criticism

 

While attorney General Eric Holder refused to be interviewed for the USA Today story, the Department of Justice was apparently stung by the article’s implication that the department’s response to widespread prosecutorial misconduct has been incompetent.

 

A spokesman for the Justice Department protested that the article “is misleading in several fundamental respects and fails to honor the exemplary service” of prosecutors. In a statement to the press, Holder assistant Gary Grindler said “the number of cases is minuscule.”

 

“During the years in question, there were 720,000 cases and 1 million defendants, which means that even if each of the 201 identified cases actually did involve prosecutorial misconduct, the study would be highlighting a ratio of only 1 in 3,600 cases,” Grindler said.

 

His comment suggested that prosecutorial abuse of power, as long as it is relatively infrequent, is understandable and nothing to get excited about – an attitude many find outrageous.

In line with this indifference, the Department of Justice to date has been completely unwilling to investigate the Iowa prosecutors’ handling of the Rubashkin case and Judge Reade’s participation in the planning of the Agriprocessors raid.

 

At least two members of Congress – Anthony Weiner of New York and Tim Murphy of Pennsylvania – have sent letters to Attorney General Eric Holder, requesting an investigation into how this case was handled by the judge and the government.

 

As the head of the justice department’s criminal division, Lanny Breuer, told USA Today, “even one example of real misconduct is too many. … If you’ve engaged in misconduct, the response of the Justice Department has to be swift and strong.”

 

Letter To Breuer, Head of Criminal Justice Dept

 

Mr. Lanny Breuer’s declared policy of zero tolerance for prosecutorial misconduct has buoyed hopes that he will finally apply his convictions to a high-profile case that has been riddled with it.

 
In a moving letter to Breuer of whichYated obtained a copy, Attorney Nathan Lewin begged him to use the powers of his office to correct “the enormous injustice” that continues to be inflicted on Sholom Mordechai.

 

“I regret having to write to you a third time with regard to the case of Mr. Sholom Rubashkin, but your surprisingly inadequate responses to my [previous] letters…make it imperative that I request again that you take prompt corrective action,” Lewin wrote to the head of the Criminal Justice Department.

 

He reminded Breuer of some of the department’s past outstanding achievements, in which criminal convictions were reversed due to the misconduct of federal officials. These corrective measures were taken “under the leadership of courageous men of integrity,” Lewin wrote.

 

Briefly summing up the powerful evidence of misconduct in the case, Lewin called on Breuer “to emulate the leadership shown [in the past] and initiate steps to correct the enormous injustice that continues to be wreaked on Mr. Rubashkin.”

 

Citing the upcoming bar mitzvah of Sholom Mordechai’s son, Mendel, less than a week away, Lewin pleaded with Breuer to “take the decent and honorable step”ofintervening with Iowa prosecutors to allow Sholom Mordechai to attend.

 

“Any and all reasonable conditions of release on bail, including even a 24-hour guard around his home, will be met in order to enable him to join his family on this important event,” the letter concluded in its plea for mercy.