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July 22, 2010

"Eric Holder Must Investigate Sentencing Disparities"

The title of this post is the headline of this notable new commentary authored by Bob Barr at the (now notorious?) website Big Government.  Here are excerpts:

A few months ago, Attorney General Eric Holder took an important step in ensuring that all men are treated equally under our legal system. In a memorandum to federal prosecutors, he noted that those who commit similar crimes in different jurisdictions “should, to the extent possible, be treated similarly.” He also cautioned against unwarranted disparities in charging decisions, plea agreements and sentencing recommendations.

But while putting these words on paper to guide federal prosecutors is important, the Department of Justice ultimately is to be judged on whether it follows in deeds. Unfortunately, right now the Obama administration is missing a golden opportunity in Iowa to show it supports parity for all.

Sholom Rubashkin was the manager of a highly successful kosher meatpacking plant in Postville, Iowa. He recently was sentenced to 27 years in prison for banking offenses. It was a startlingly long sentence for a first-time, non-violent offender; especially for a man who never intended any loss to the bank from which he borrowed funds to run the meat business. By contrast, Mark Turkcan, the president of a St. Louis bank who knowingly defrauded his company out of nearly $35 million, was sentenced last year to just 366 days in jail.

The details of how prosecutors have handled Rubashkin’s case have raised many eyebrows; and dozens of former Justice Department officials have spoken out on Rubashkin’s behalf. But Holder and his team thus far have refused to investigate the case. How, then, can we take seriously their calls to end disparities of justice?...

As a former U.S. Attorney, I am keenly aware of the pressure federal prosecutors are under to garner big convictions. But sometimes, getting the big victory comes at the expense of true justice and more and more we are seeing federal prosecutors step over the lines of good practice. The “win at all costs” mentality certainly hurts individual defendants; but it also constitutes a stain on the American justice system. And from a practical standpoint, using extreme tactics wastes precious resources that can be used to fight crime in other ways.

Attorney General Holder is on the right track by pushing federal prosecutors to seek fair, effective and even-handed administration of justice. But he needs to do more than put good words on paper. The Department of Justice must investigate the Rubashkin case and the many ways in which the prosecution has targeted Sholom Rubashkin for unfair treatment. Anything less than a full review sadly will show the Obama administration is not serious when it calls for equal treatment for all.

July 22, 2010 at 11:08 AM | Permalink


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1. I believe you should point out that Bob Barr has undertaken to represent Rubashkin on appeal. It's hired work, or at least pro bono legal representation. It's not simply a former U.S. Attorney's opinion piece about DoJ's work in this case.

2. Barr's statement that Turkcan "knowingly defrauded his company of nearly $35 million" is false. Turkcan was convicted of misapplication of $35m of bank funds by a bank officer. It's a very different crime from bank fraud -- a different statutory offense entirely, with a different set of elements. I don't know whether Turkcan received any of that $35 million, or, if he did, how much, but his confessed crime was a very different crime from Rubashkin's crime. There also is the issue of restitution that needs to be looked at, if you're going to be fair, as well as other issues such as refusal to accept responsibility for his crimes, statements made at trial, etc.

3. All of Rubashkin's supporters, particularly those (if any) who are paying for Bob Barr's services, and, apparently, the services of many other prominent people in the United States, would help Rubashkin more by using their time and money to provide greater restitution to Rubashkin's victims. Obviously, he's entitled to excellent legal representation, but the nationwide PR campaign is likely to harm Mr. Rubashkin's legal situation. Trying to strong-arm the judge with a PR campaign prior to sentencing did not apparently help.

4. I'm a criminal-defense attorney. If anything undermines our judicial system, it is attempts by attorneys to apply political pressure (or use the press for ex parte communications) to the judiciary and making misleading statements in the press (or anywhere else) in an effort to advance one's client's position. It appears that many of Mr. Rubashkin's supporters, including his advocates, don't share these values.

Posted by: Mark Pickrell | Jul 22, 2010 11:52:12 AM

It would do the souls of the defense bar good to admit a conflict of interest. Their official duty is to the defendant. However, the defendant is fungible and commodified.

They really owe their jobs to the prosecution and to the judge who keeps a case going even if it has no merit either in fact or in policy. So the defense attorney will be very protective of the prosecutor and of the judge. Pleasant conversation with Harvard Law grads, all of whom were working in white collar defense. All of a sudden, they were running away and shunning me. What did I say to cause such a disturbance? I said, I would suggest that defendants require that total e-discovery be done on the prosecutor, personally, and also on the judge. All adverse information should get into a public database for use by unrelated future defendants.

Even if defense lawyers find the idea repugnant, they should at least admit their dependency on the prosecution and the case stretching judges for their jobs.

Posted by: Supremacy Claus | Jul 22, 2010 1:31:24 PM

Mr. Pickrell has it exactly right. In particular, failing to reveal that Barr is on Rubashkin's payroll is not acceptable.

Posted by: Bill Otis | Jul 22, 2010 8:27:00 PM

bill: "failing to reveal that Barr is on Rubashkin's payroll is not acceptable."

me: for any sort of creditible news organization, but apparently the rules are different when you are writing for website whose founder thinks its a good idea to admit that he posted potentially defamatory information without bothering to verify the veracity of it because it would provide political benefit. a simple undisclosed conflict of interest is a relatively minor journalistic gaffe when you consider the source.

ginny :)

Posted by: virginia | Jul 24, 2010 5:39:04 PM

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