Commentary: Prosecutorial and judicial misconduct
US high court should hear Rubashkin case to consider overzealous DOJ and judge who was essentially on prosecution team.
Sholom Rubashkin Photo: Associated Press
Lawyers for Sholom Rubashkin – Paul Clement and Nathan Lewin – two months ago
filed a petition for writ of certiorari with the US Supreme Court. Rubashkin is
seeking relief from the Supreme Court because the US Court of Appeals for the
Eighth Circuit refused to consider evidence that Rubashkin first discovered
after the trial that made the trial fundamentally unfair.
the past few years, a series of federal judges have criticized the US Department
of Justice for prosecutorial misconduct. Judge Emmet Sullivan of D.C. District
Court, who ordered a criminal investigation into the actions of prosecutors in
the trial of former Alaska senator Ted Stevens, suggested that the case
reflected deeper problems at the Justice Department. Chief Judge Mark Wolf of
the District of Massachusetts found that he regularly presided over cases where
federal prosecutors withheld important evidence, about every other year for the
past two decades.
It’s happened again, but this time the judge herself is
part of the problem rather than part of the solution. When
Agriprocessors, an Iowa kosher processing plant, learned that the Immigration
and Customs Enforcement Agency (ICE) was concerned about its hiring practices
and planned a raid, it hired a law firm to contact ICE and offered to cooperate
with the authorities in terminating undocumented workers. ICE did not reply.
Instead, on May 12, 2008, it launched a highly publicized raid, with about 600
agents in riot gear, accompanied by a Blackhawk helicopter. Agents
arrested 389 workers.
Five months later, the government arrested the
plant’s manager, Sholom Rubashkin, on charges of harboring illegal immigrants,
but ICE’s case had problems. For example, it turned out that an undercover ICE
agent had twice tried to secure employment at this plant, but he was turned away
because he did not have the proper papers.
It would not do to have such a
dramatic raid and nothing to show for it. The Justice Department filed seven
superseding indictments charging bank fraud. The indictments included a creative
theory – that Rubashkin falsely certified to the bank that Agriprocessors was
complying with all the laws even though it was employing undocumented aliens.
The federal jury did convict on the bank fraud charges, and the federal
government dropped all immigration charges. In the meantime, Iowa indicted
Rubashkin for employing child labor. The state initially alleged 9,311 offenses
and went to trial on only 83; the trial judge limited that number to 67, and the
jury acquitted on everything.
Federal prosecutors recommended life
imprisonment. After widespread criticism of such a harsh sentence by many people
(including six former US attorneys general), the government asked for a 25-year
sentence. Judge Linda Reade, the trial judge, imposed 27 years
But Reade did more than impose a disproportionate sentence.
After Rubashkin’s conviction and sentence, defense lawyers learned that Reade,
over a six-month period, had been actively engaged in planning the
Agriprocessors raid. Emails and affidavits showed that, long before the raid
occurred, Reade met with ICE agents to discuss “charging strategies, numbers of
anticipated arrests and prosecutions, logistics, the movement of detainees, and
other issues related” to the investigation and operation. At one meeting, which
law-enforcement personnel attended at the judge’s request, the judge stated that
she was “willing to support the operation in any way possible, to include
staffing and scheduling.” She was essentially part of the prosecution
A March 20, 2008, email states: “The Chief Judge has indicated she
wants a final game plan in two weeks (April 4).” Eleven days later, another
email discloses that the assistant US attorney (AUSA) would meet with Reade on
April 4, and the judge wanted “a briefing on how the operation will be
The AUSA wanted a document “for his presentation to the
judge,” because of the “requirement to brief the judge.” The actual raid was
planned “[i]n coordination” with “the United States District Court in the
Northern District of Iowa.” The trial judge, ICE and the AUSA had “a weekly
operations/planning meeting” about this upcoming case.
The judge and the
prosecutors should have notified Rubashkin’s lawyers that she had participated
in planning the raid so that they could move to recuse her. Failure to do so was
prosecutorial and judicial misconduct.
The judge made herself a witness
involving the events of the disqualification issue and then said –
unsurprisingly – that she would rule in favor of her version of events, rather
than the version suggested by the documents and the affidavits. She
judged her own credibility even though the federal statute provides that, when a
litigant alleges prejudice by a judge, “another judge shall be assigned to hear
such proceeding.” Case law provides that “the court must accept all facts
included in the affidavit as true.” But she did not do that, either.
appeal, the Eighth Circuit affirmed the conviction and refused to disqualify the
judge because it said (applying a rule unique to the Eighth Circuit) the
defendant should have filed his motion earlier, and it was not convinced that
the newly discovered evidence “probably will result in an acquittal upon
The Supreme Court should decide to hear this case and use it as
a vehicle to examine cozy relations between a prosecution that was too zealous
and a judge who was too involved in pretrial prosecution strategies. The Iowa
legal director of the American Civil Liberties Union, one of the groups that
filed an amicus brief on behalf of Rubashkin, warned that the judge’s
involvement with the prosecution “immediately gave the appearance of
unfairness.” It was more than appearance. It was actual unfairness.
Dershowitz is a professor of law at Harvard University. Ronald Rotunda is a
professor of law at Chapman University. Rotunda filed an amicus brief in
the US Court of Appeals for the Eighth Circuit on behalf of the National
Association of Criminal Defense Lawyers, which various professors and
practitioners, including Dershowitz, joined.
Reprinted with permission
from the April 30th edition of National Law Journal (c)2012 ALM Properties, Inc.
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