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April 30, 2012

"High court should hear Rubashkin to consider overzealous DOJ and judge who was essentially on prosecution team"

The title of this post is drawn from the subheading of this new commentary in the National Law Journal by Alan Dershowitz and Ronald Rotunda, which carries a main headline of "Prosecutorial and judicial misconduct."  Regular readers are likely familiar with the Rubashkin case because I have blogged a lot about its sentencing elements.  (As reported here, with the help of the Washington Legal Foundation (WLF), last year I filed an amicus brief on sentencing issues when this case was before the Eighth Circuit; as I will discuss in some future posts, I have lately been working up an amicus brief urge SCOTUS to take up the case to resolve splits over reasonableness review in the circuits.) 

Here are excerpts from the Dershowitz and Rotunda commentary:

Lawyers for Sholom Rubashkin — Paul Clement and Nathan Lewin — filed last month a petition for writ of certiorari with the U.S. Supreme Court. Rubashkin is seeking relief from the Supreme Court because the U.S. Court of Appeals for the Eighth Circuit refused to consider evidence that Rubashkin first discovered after the trial that made the trial fundamentally unfair.

Indeed, during the past few years, a series of federal judges have criticized the U.S. 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....

Federal prosecutors recommended life imprisonment. After widespread criticism of such a harsh sentence by many people (including six former U.S. attorneys general), the government asked for a 25-year sentence. Judge Linda Reade, the trial judge, imposed 27 years instead.

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. E-mails 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 team....

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.

Related posts on the Rubashkin case:

April 30, 2012 at 06:17 PM | Permalink

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"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."

Look, I'm not known around here as being a sycophant for prosecutors but there is a significant difference between the judge planning the prosecution and the judge preparing the judicial system for what is going to be a big influx of cases. The article is not at all clear as to what the judge was actually doing. If it was the former, then certainly it was misconduct. But if it was the latter then I'm skeptical; that's comity. If I'm a judge the last thing I want is the executive dumping 400 cases on my docket in a big surprise and then going, "have fun!"

Posted by: Daniel | Apr 30, 2012 6:31:51 PM

Should the judge be anymore involved than just signing a search warrant?

Posted by: ? | Apr 30, 2012 7:41:15 PM

I believe that Judge Linda R Reade went down to St Louis 2 days before the appeal was argued, to fill in for another Judge that was gone....Isn't that convenient, to patch up loose ends and be convinceing.

When you go before Judge Reade, you are facing a tag team... The AUSA gives a brief argument and she affirms it, the defense attorney is given little attention and is denied...Pretty much what the defense argues doesn't qualify,, She affirms enhancements immediately, but departure/variances are brushed aside with an uncaring attitude.. She is the AUSA best friend in the world, while in court...It takes a higher court to overrule her to get a reduction.....There are no convincing arguments made...She is exactly like a prosecutor, not a judge..Maybe her past cases should be reviewed for those that have argued and been so denied by a rubber stamped Robot...Anyone out there had similar experiences with Judge Reade..Many defense attys do much better in a different district, with similar cases...

Posted by: Abe | May 1, 2012 10:20:12 AM

Daniel makes a good point. It's commonplace, when there will be a big raid, for prosecutors to have advance contact with the court. The court needs to be ready toarrange large numbers of defense lawyers and marshals in advance. The court needs to have staffing ready to handle the large numbers of complaints and cja vouchers. The court needs adequate courtroom space set aside. The court may need to rearrange it's ordinary schedule (to start processing cases at 7am, for instance, instead of 3pm, so they can finish in a day, so that defendants get counsel appointed quickly and do not have their initial appearances delayed.)

Should the court be expressing preferences among charges? No. Is it ok for the government to tell the court, for instance, "for the workers, we'll be charging only the aggravated felons, to keep the number of cases down"? I don't see why not.

The real problem is that this occurred on a small enough court that, evidently, the chief judge handles the administrative preparations herself and also takes lots of criminal cases -- something unlikely to happen on a larger court like SDNY or ND Ill or CD Cal or SD Fla. But that also exacerbates problems like needing to Perlman to get enough defense lawyers. (How many cja panel attorneys do you think could have been at the court on just an hour's notice?)

But the view that the government should just bring dozens or hundreds of defendants to court on a day of it's choosing, without discussing the matter with the court is foolish. Dershowitz is simply hyperventilating.

Posted by: Dershowitz is hyperventilating again | May 1, 2012 10:25:47 AM

you could say she's a lucky women. if that was me and i had any money in the world the fed's hadn't found. it would now be on her head as any number of mercenaires from around the world came to collect! for her two-faced treasonous activity.

you lawyers can try all the bill shit you want. if she was this invovled in the events leading up to the raid there is NO WAY IN HELL she should have had any part of ANY of the cases to follow!

Posted by: rodsmith | May 1, 2012 3:14:24 PM

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