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August 15, 2010

Potent opinion piece asserting "justice denied" in the Rubashkin case

Appearing now in the National Law Journal is this potent commentaryby Professor Robert Steinbuch and former US Attorney Brett Tolman, which is headlined "Justice denied: Rubashkin's sentence is wholly inappropriate for the crimes of which he was convicted." Most of the piece covers ground familiar to anyone who has followed this high-profile white-collar case out of Iowa, though the piece concludes by discussing a relatively new development in the case related to pre-trial contacts between the presiding judge, Chief Judge Linda Reade of the Northern District of Iowa, and federal prosecutors:

In February 2009, prior to Rubashkin's trial, his attorneys made a Freedom of Information Act request to ICE seeking documents concerning Rubashkin and the raid upon the facility.  ICE didn't produce the documents.  His attorneys sued.  More than a year later, they finally obtained redacted documents from ICE.  The documents are startling.  They show that Reade had ongoing ex parte contacts with the U.S. attorney's office and ICE about the matter beginning six months prior to Rubashkin's arrest.  These meetings covered operational and strategic topics that went far beyond the mere "logistical cooperation" that Reade had insisted was the limit of her interaction when she denied a recusal motion from an unrelated defendant in the case.  The newly discovered ICE memoranda belie this claim.

The documents reveal that Rubashkin's arrest appears to have been timed to accommodate Reade's personal vacation schedule; Reade and the U.S. attorney's staff "surveyed" the location where the detainees would be held and their trials conducted; Reade expressed her personal commitment "to support the operation in any way possible"; Reade personally participated in meetings that covered "an overview of charging strategies" to follow the raid; and Reade demanded sua sponte from the prosecutors "a final gameplan in two weeks" and a "briefing on how the operation will be conducted."

Reade never disclosed her attendance at, and active personal participation in, these meetings.  Rubashkin's attorneys have moved to have her retroactively recused.  The motion requests that another judge decide the question.  We'll see whether she accedes to this request.  The attorneys are also considering filing complaints with the U.S. Justice Department against the prosecutors for failing to disclose their contacts with Reade.

The Rubashkin legal team earlier this month filed a motion for a new trial (supported by this memo of law) based on the pre-trial contacts between Chief Judge Reade and federal prosecutors.  It will be interesting to see how prosecutors and Chief Judge Reade respond to this motion.  (Full disclosure: I have provided some assistance on sentencing matters to some persons directly involved in the Rubashkin case.)

Related posts on the Rubashkin case:

August 15, 2010 at 09:51 PM | Permalink


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This is not a surprise. Rubashkin is fortunate to have so many attempting to shine light on his prosecution. Most defendants do not have such counsel. As sorry as I am about this prosecution, it is not the exception.

Posted by: beth | Aug 15, 2010 10:04:29 PM

just one more bit if proof this CRIMINAL govt has long outlived it's right to live!

Posted by: rodsmith | Aug 15, 2010 11:58:13 PM

As stated many times, resulting in defense lawyer shunning every time, always do total discovery on the prosecutor and on the judge. The result above now makes it a standard of due care for the defense bar.

Posted by: Supremacy Claus | Aug 16, 2010 7:52:34 AM

What a surprise. Judge Reade, a George W appointee, is a former federal prosecutor.

"Reade expressed her personal commitment "to support the operation in any way possible"

It's what I've been saying. This isn't justice. It's Team Government holding the line and showing the colors...separation of powers, independent judiciary and simple notions of fairness notwithstanding.


Posted by: John K | Aug 16, 2010 8:28:21 AM

I've never seen a Judge give so little consideration to defense arguments. Whatever the government wants for a sentence, she pretty much
hands it out. Especially obvious on valid downward departures.

Posted by: Abe | Aug 16, 2010 9:17:26 AM

I've read it. It's a weak, limp-wristed and tentative apologia.

Posted by: FluffyRoss | Aug 16, 2010 9:46:48 AM

Hmmm, and the part that surprises us is?

Posted by: Throsso | Aug 16, 2010 7:46:35 PM

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