In an interview with the Yated, lead appellate attorney Nat Lewin said he was stunned by the decision, calling it a “whitewash” of blatantly unfair prosecution procedures and an outrageous prison sentence.
“The vibes from the 8th Circuit weren’t good from the beginning,” he said, “ever since they denied Sholom bail pending sentencing, without offering a word of explanation. But what shocked me about this decision was its complete one-sidedness, its failure to look squarely and honestly at the issues.
“The 8th Circuit’s decision puts its imprimatur on the most massive injustice I have encountered in 50 years of practicing law,” he said.
Rubberstamping Government’s Position
The Rubashkin case is increasingly seen as emblematic of the abuse of judicial and prosecutorial power in this country. It is viewed as testing the American criminal justice system in the blurring of the lines between the executive and judiciary functions that allowed a federal judge to virtually become an arm of the prosecution.
“By rubberstamping the government’s position, this court is encouraging a unitary branch of government – the executive and judiciary rolled up in one,” an Iowa lawyer monitoring the case told the Yated. “That, to me, is a chilling and frightening scenario.”
The court’s opinion, written by one of the 8th Circuit’s most senior judges, Judge Diane Murphy, revealed a court marching in rigid lockstep with the government viewpoint. The language throughout the document faithfully echoes the thought process and actual wording of the prosecution’s arguments and repeats flawed sentencing calculations by Linda Reade.
Unlike balanced legal opinions that, while agreeing with one party, also acknowledge valid points made by the opposite side, this decision is marked by wholesale ratification of the government’s reasoning on every score.
False Legal Doctrines
“The decision espouses wrong legal doctrines, often on ridiculous grounds,” Lewin told the Yated.
He cited as an example the 8th Circuit’s rejection of Sholom Mordechai’s new-trial motion, the appeal’s lynchpin. Rule 33 of the U.S. Code stipulates that relevant new evidence – in this case, the discovery of Judge Reade’s secret meetings with law enforcement – not available at the time of trial are grounds to grant a new trial.
The court of appeals, abandoning all pretense at an honest probe for the truth, brushed aside evidence of Reade’s ex parte meetings with prosecutors as adding “nothing new” to what was known before the trial, and not likely to lead to a probable acquittal at a retrial.
The court went so far as to misrepresent the defense’s arguments in an effort to bolster its stance. “Rubashkin concedes that his new evidence would not likely affect the jury’s verdict on retrial,” the opinion states.
“We made no such concession,” says Lewin. “That is simply wrong. What we maintained all along is just the opposite: that under an unbiased judge, one who was not acting as an arm of the prosecution, the outcome of this trial would almost certainly have been different.”
8th Circuit Court Judge Diana Murphy’s opinion echoed the government claim that since the request for Reade’s recusal was not made at the proper time, it therefore has no merit.
“This flies in the face of logic and common sense,” said Lewin. “Suppose a handwritten letter by this judge were to be found post-trial, saying, ‘I hate Sholom Rubashkin. I’ll have him behind bars for life if it’s the last thing I do.’ What the court’s ruling means is that even such concrete evidence of bias, unless it was produced before trial and would support an acquittal, would be rejected.”
Lewin added that the 8th Circuit’s narrow interpretation of Rule 33 – that only evidence that can prove innocence is admissible in a new-trial motion – runs counter to the understanding of the U.S. Code as defined by other circuits.
“This is the kind of issue that has broad bearing on American justice and might well interest the United States Supreme Court in the case,” he said. He added that the legal team is considering its options in fighting the devastating injustice of the 8th Circuit’s opinion, and an appeal to the Supreme Court is imminent.
Exercise In Absurdity
In one of the most disturbing flights from logic, the court asserted that the defendant, not Judge Reade, bore the responsibility for seeking Reade’s recusal. “Rubashkin did not make a timely recusal motion. He waited until after his conviction and sentencing before raising the issue,” the opinion said.
“This is ludicrous,” Lewin objected. “Sholom had to threaten to sue the government before they grudgingly turned over the documents – many months after he requested them and long after the trial was over. This fact was spelled out in the appeal brief and in oral arguments.”
Rather than fault the government for keeping defense counsel in the dark about the extensive ex parte contacts, the court of appeals blamed Sholom Mordechai for not proactively seeking the documents that revealed this activity.
“He is faulted by the court of appeals for not moving for recusal, even before he knew- or could possibly discover – any facts that would justify recusal,” Lewin pointed out, unable to mask his disgust at the irrationality.
“But You Didn’t Prove Bias”
The court’s flight from the facts also stands out in its refusal to admit the overwhelming evidence of Reade’s deep involvement in the planning of the ICE raid. Her clandestine involvement, uncovered by the ICE memoranda, was sufficient to wipe out the trial purely on the grounds of “appearance of bias,” the defense had argued.
The court, in its decision, totally ignored the issue of “appearance of bias.” It rushed to Reade’s defense, insisting that the defense failed to prove that Reade should have recused due to “actual bias.”
Lewin was asked by Chief Judge William Riley at the June 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 evidence of prejudice, implications of bias run straight through numerous rulings that harmed the defendant, all of which were spelled out in the appeal brief.
The court, in its opinion, pounced on his statement, taking it out of context and using it as grounds to reject the argument that Reade was required to recuse herself due to improper contacts with prosecutors.
“…We find no evidence that Judge Reade’s decision to remain on the case prejudiced Rubashkin’s verdict,” the opinion said, pointing to Lewin’s failure to show evidence of bias.
The court’s statement is a denial of a fundamental truth about human nature, said Lewin.
“It’s axiomatic that a judge who should be recused but remains on the case is bound to cause the defendant harm,” said Lewin. “But can I prove it in the sense of pointing to a letter, an email, a verbal statement of malice? No, I can’t. But that is not the issue.”
The controlling issue, he pointed out, is whether the judge’s neutrality would be doubted by the “average person on the street” hearing of her psychological investment in the law enforcement operation.
When a judge has psychologically joined the prosecution team as happened here, Lewin told the court in June, she can – and did – use her enormous leeway in discretionary rulings to influence the trial’s outcome.
“The 27-year prison sentence – two years more than the prosecutors requested, the sequence of the trials, barring of evidence and many other one-sided rulings by Reade reveal prejudice that pervades the trial,” Lewin said. “We described these pernicious rulings in several pages in our brief.”
But in a case so tainted even by the appearance of partiality, he said, the applicable standard is that even without proof of bias, the trial must be vacated.
Prejudice Cuts To The Heart Of The Rubashkin Case
The issue of glaring prejudice cuts to the heart of the Rubashkin case from another angle.
Judge Reade herself sat with Judges Lavenski Smith and Diana Murphy a few hours before these individuals, together with Chief Judge Riley, heard oral arguments in the Rubashkin case.
Many people were dumbfounded by this scenario, so contrary to instinctive notions of the spirit of objectivity that must imbue a court of law.
“Judge Reade was the trial judge who secretly met with the prosecutors in planning the raid and arrest of Rubashkin, presided at his trial without ever disclosing those meetings, and sentenced him to more jail time than even the prosecutors asked for,” law professors Bennet Gershman and Joel Cohen pointed out in an article in National Law Journal.
“Now she joins the 8th Circuit and hears cases together with two of the three judges presiding over a review of her own conduct that same day?”
Even if the judges are capable of overriding camaraderie and sympathy for a colleague, the problem of the appearance of partiality remains, the authors said.
In view of the allegations of judicial misconduct shrouding the case, scheduling Judge Reade as a fill-in within the same time frame as the Rubashkin hearing was, at minimum, “extraordinarily bad judgment,” the article asserts. “At worst, it raises serious questions about the impartiality and integrity of the proceedings.”
History Repeats Itself
Just as ‘close interactions’ with federal prosecutors tainted the federal trial, similarly close interactions between Reade and the 8th Circuit judges might compromise the appellate proceedings in the eyes of the public, the authors reasoned.
Reading the court’s opinion on the Rubashkin appeal, one can’t help but feel this apprehension is well-grounded. The potential for Reade’s presence on the 8th Circuit to have exerted undue influence – subliminally, if not overtly – on the judges’ attitude toward the Rubashkin case cannot be denied.
The language of the opinion closely mirrors Reade’s language in her sentencing briefs and rigidly adheres to the government’s line of thought.
Lewin said he was so disturbed at the news that the 8th Circuit had invited Reade to temporarily join them prior to the appeal hearing that he drafted a motion asking for the Rubashkin appeal to be heard by a different circuit.
“The legal team discussed it and we decided not to file the motion,” he recalled. “First, it would have been rejected. Secondly, we anticipated that it would infuriate the judges that we questioned their ability to rise above the natural tendency to be influenced by sympathy for a colleague. It would have backfired on Sholom. Then, later, after they issued their terrible decision, everyone would find a pretext for it in the fact that we angered the judges.”
20 U.S. Attorneys, 50 Law Professors Protest Abuse Of Power
Although Reade’s misconduct was easily dismissed by the 8th Circuit, this was not the case with the tens of thousands of people monitoring the case.
An electrifying letter sent to the Office of Public Responsibility, a branch of the Department of Justice, gives voice to the dismay and outrage characterizing the reactions of “the average person on the street” to the indications of prosecutorial and judicial misconduct in the Rubashkin case.
The letter, a plea to Attorney General Eric Holder to review evidence of abuse of power and rampant injustices in the case, was written about a month after the appeal hearing. It is signed by former deputy U.S. Attorney General Larry Thompson and over 20 U.S. attorneys and 50 eminent law professors.
The letter outlines the concerns of these legal experts over the apparent blurring of the executive and judiciary functions in the Rubashkin case. They cite the allegations of misconduct on the part of some of the highest judicial and law enforcement officials in Iowa.
“Concerns about the USAO’s (U.S. Attorney’s Office’s) conduct in this case are shared by many, including the American Civil Liberties Union of Iowa, the Washington Legal Foundation, and the National Association of Criminal Defense Lawyers, all of which have filed amicus briefs in support of Mr. Rubashkin,” the letter noted.
Violations of Federal Sentencing Guidelines
The WLF brief in particular slammed the grossly disproportionate 27-year jail sentence imposed on Sholom Mordechai, saying it reflects serious errors in Judge Reade’s calculations as well as violations of the Federal Sentencing Guidelines.
“And two nationally renowned experts on legal ethics have concluded that the prosecutors’ extensive ex parte contacts with Judge Reade constituted both prosecutorial and judicial misconduct,” states the letter.
The letter goes on to describe how “Judge Reade’s imposition of a 27-year sentence on Mr. Rubashkin – a first-time offender with no history of violence, a long record of charitable endeavors, and a father of ten – has generated extensive public criticism.
“In addition to the numerous op-eds and blog postings decrying the sentence as draconian, 47 members of Congress from 16 states – 27 Democrats and 20 Republicans – have written to the Department of Justice to express their concerns about the fairness of the proceedings.
“Nor are these critiques limited to the length of the sentence. Many, including most of the letters written by members of Congress, have asked that the Department of Justice investigate the allegations of prosecutorial and judicial misconduct surrounding the numerous ex parte meetings detailed above.”
[One is reminded of the June oversight hearing on the Department of Justice conducted by the House Judiciary committee, where Holder was peppered with questions from committee members on issues of outstanding public concern.
Rep. Sheila Jackson Lee and Democratic National Committee chairwoman Rep. Debbie Wasserman Shultz used the occasion to press Holder to investigate the injustices in the Rubashkin case.
Another committee member, Zoe Lofgren, reminded Holder that the entire subject of the Postville raid and prosecutions were a stain on American justice due to the subversion of constitutional rights and other flagrant abuses of government power.]
An Unheeded Plea
The unprecedented letter by 20 U.S. attorneys and 50 law professors closes with a plea to Holder: “We strongly urge you to carry out a full and prompt investigation of the allegations of impropriety and unfairness in the Sholom Rubashkin case in order to remove the cloud that is growing publicly and in judicial circles…”
To date, no response to this letter has come from the Department of Justice. Perhaps Holder was hoping that a just decision by the 8th Circuit would bring closure to this ugly chapter in American justice and he would not have to get involved.
The court’s decision, however, dashed this prospect, fueling the burning injustices in the Rubashkin case. Far from burying the cause, however, the court’s sweeping, categorical denial of the appeal, insiders say, may rally support from unexpected quarters and open up avenues of relief for Sholom Mordechai.