Thursday, May 23, 2024

Rubashkin Brief Hammers Home the Injustice

In a brilliant, hard-hitting reply brief, attorneys Nathan Lewin and Paul Clement shredded the Government's arguments challenging Sholom Rubahskin's “cert” petition to the Supreme Court. The brief hammered home the injustice of the case which it says “must not stand.” To briefly sum up the relay of legal filings to the Supreme Court: The April “cert” petition asked the Supreme Court to overturn the 8th Circuit Court of Appeal's ruling which denied Sholom Mordechai's motion for a re-trial, and upheld the outrageous 27-year sentence.

The 8th Circuit’s ruling rejected the defendant’s Rule 33 motion, based on newly discovered evidence [through an FOIA lawsuit], that the trial had been compromised by the lack of an impartial judge.


The 8th Circuit insisted that they could not even consider the trial’s alleged flaws, because only new evidence that offered proof of the defendant’s innocence could be grounds for a retrial.


That rigid stance in effect said that even if it were proven beyond a doubt that the judge or jury members were bribed, there would still be no legal recourse.   


The 8th Circuit’s position flies in the face of logic and justice, and conflicts with the law in other circuits, the attorneys argued in the cert petition. It so violates the bedrock constitutional right to a fair trial that it requires Supreme Court intervention. 




The government response was to doctor up the 8th Circuit’s position to make it sound less irrational. But Lewin and Clement collapsed that effort in their August 9 brief by noting that the 8th Circuit called its interpretation of Rule 33 “clear and binding,” language that signaled no flexibility at all.


Despite the government’s attempts to spin the 8th Circuit’s ruling [pretending it said something it did not], the net effect was to highlight the ruling’s flawed logic, Lewin and Clement argued.


The attorneys marveled at the government’s failure to “even attempt to defend” the 8th Circuit’s interpretation of Rule 33, because failure to defend it is tantamount to admitting it’s wrong.


“Respondent [i.e. the government] does not even attempt to defend the Eighth Circuit’s construction of Rule 33 that precludes consideration of newly discovered evidence [that does not pertain to innocence], no matter how clearly the new evidence undermines the integrity of the proceedings,” the attorneys asserted.


“Nor does respondent deny that the Eighth Circuit’s rule squarely conflicts with the law in other circuits.”




The government tried to justify the 8th Circuits denial of the Rule 33 motion by creating an artificial distinction between claims of actual bias and the appearance of bias.


No evidence of Judge Reade’s actual bias was presented, the government brief argued; the claim was only the appearance of bias, which does not invalidate a trial.  


Lewin and Clement brushed this distinction aside as pure invention, unsupported by any legal precedent. The law does not differentiate between claims of “actual bias” and “appearance of bias,” they said.


“The legal decisions of many circuits on [this question] do not support that distinction, or offer any reason to slice the bologna so thinly.” The law treats appearance-of-bias claims with the exact same seriousness as actual-bias claims.


The reason for this is self-evident. Suppose a video existed of a judge declaring his passionate hatred of a particular defendant. The jury returns a guilty verdict and this same judge hands down a life sentence. Suppose the video then surfaces and the defendant plays it before an appeals court, citing it as absolute proof that the judge was biased against him.


If proof of “actual bias” is the only yardstick to be used in gauging claims of a judge’s partiality, even a video of the judge railing against the defendant won’t meet the bar. Who can say with certainty that the judge’s hatred translated into bias? Who can say if it determined or even influenced the trial’s outcome? Of course it is possible, even likely, but can it be proved?


Actual bias and appearance of bias are both equally taboo because at the end of the day, only G-d can distinguish between them. Human beings cannot read minds or plumb hearts.


Actual bias and appearance of bias are also equally dangerous because both destroy public confidence in the judicial system, the brief makes clear.  




The judges of the 8th Circuit seem to think differently. Their actions reflect a belief that judges are above bias, even in situations where bias is so blatant, that to deny it is folly.


One can’t help but recall that the 8th Circuit invited Judge Linda Reade to sit with them to hear cases on the very same day they were scheduled to hear the Rubashkin appeal, as well as on the day before.


Two of the three judges who heard the appeal spent untold hours conversing and fraternizing with esteemed colleague Linda Reade for two days, including just minutes before they were asked to judge her conduct in the Rubashkin case.  


Was anyone surprised when the panel of three handed down an opinion that rubberstamped Reade’s rulings and rejected all critique of her conduct?


[Appearance of bias, anyone? Oops. Forgot. Appearance doesn’t count. It’s only actual bias that’s a problem. And fortunately, judges are above that, right?]


In addition to puncturing the government’s artificial distinctions, Lewin and Clement lash out at the government for causing an erosion of public trust in the judicial process by whitewashing judicial misconduct in the Rubashkin case.


“Independent experts and scores of amici [friends of the court] have attested to the damage that the trial judge’s actions have had upon perceptions of a fair criminal justice system,” the brief says.


The attorneys cite “an extraordinary bipartisan array of amici urging Supreme Court review of the case… including former Attorneys General, United States Attorneys, and federal judges; leading criminal law, legal ethics, and sentencing scholars; and four national organizations.”




In the same vein as the government’s failure to defend the 8th Circuit’s holding on Rule 33, its silence on sentencing issues raised by the Rubashkin petition to the Supreme Court should be viewed as an admission of error, Lewin and Clement argue.


The government by its silence conceded that Judge Reade “did not consider or explain [her] basis for rejecting [Rubashkin’s] argument for a below-Guidelines sentence, which would have resulted in vacatur of his extraordinary 27-year sentence in other circuits.”


In simple terms, the law states that when mitigating circumstances are present, a sentencing judge must consider a defendant’s request for a lower sentence than that advised by the Sentencing Guidelines. The judge cannot simply brush the request aside, without a word of explanation.


Especially in a case where the sentence is wildly out of proportion to the offense and grossly exceeds the punishment meted out to similar offenders; and especially where the mitigating circumstances are so abundant, the judge is obligated to explain her reasons for the astounding harshness.  


Judge Reade refused to do so. Ignoring public outcry and the protests of a broad array of legal experts, she sentenced a first time, non-violent offender with a stellar history of kindness and public good works to a virtual life sentence, without a word of justification for the astounding severity.


“Justice demands a statement of reasons and abhors a ukase [a dictator-style edict],” Lewin and Clement wrote.  




The attorneys note the irony that had the appeal been heard in the Third, Sixth and Seventh Circuits where decisions have made it clear that a judge must respond to serious arguments for a lowered sentence, the defendant would have surely prevailed.


In Delaware; New Jersey; Pennsylvania; Kentucky; Michigan; Ohio; Tennessee; Illinois; Indiana or Wisconsin, Judge Reade’s sentence would have been thrown out. But since the 8th Circuit had jurisdiction over the case, Sholom Rubashkin is suffering a torturous 27-year sentence.


Should there be a different law of the land based on which region in the country one resides, the brief asks. Shouldn’t the Supreme Court use the Rubashkin case as a vehicle to clarify the law, making it uniform throughout the United States?



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