Doubts About Federal Judge Haunt CaseJoel Cohen in Chabad, June 17, 2011
by Debbie Maimon, Yated
In a searing article, two prominent law professors have aired their concern over a bizarre twist in the Rubashkin case that they say “raises fresh questions about the integrity of the federal judiciary.”
“At 1:30 p.m. this Wednesday, June 15th, in the Federal Courthouse in St. Louis, Missouri, an appeal will be argued before three judges on the Eighth Circuit Court of Appeals in one of the most bitterly contested and controversial criminal trials in many years,” the Huffington Post article begins.
The authors, Bennett Gershman of Pace University and Joel Cohen of Fordham Law School, have previously written about injustices in the case in the National Law Journal.
In the Huffington Post op-ed, “When A Judge Stumbles, Do Appearances Matter?” the authors criticize the decision of the Eighth Circuit to draft Judge Linda Reade as a temporary fill-in, to hear a number of cases with two of the same judges who will hear the Rubashkin appeal later in the day.
Reade sat with Judges Lavenski Smith and Diana Murphy a few hours before these judges, together with a third colleague, Chief Judge William Riley, were scheduled to hear oral arguments in the Rubashkin case.
Law professors Gershman and Cohen find this arrangement very disturbing.
“Judge Reade was the trial judge who secretly met with the prosecutors in planning and carrying out the raid and arrest of Rubashkin, presided at his trial without ever disclosing those meetings, and sentenced him to more jail time than even the prosecutors asked for,” Gershman and Cohen point out.
They cite internal government documents that portray Reade as playing a key managerial role in the raid, and along with federal prosecutors, concealing this activity from the defense. This clandestine behavior prevented Sholom Mordechai’s attorneys from moving for her recusal, the appeal argues.
“The question that many observers have asked-- and that figures prominently in Rubashkin's appeal,” the authors write, “is whether Judge Reade was guilty of misconduct by meeting secretly with the prosecutors; being "briefed" on the investigation; discussing "charging strategies;" seeking from the prosecutors a "final game plan," as well as the likelihood that she may have received extra-judicial information about the case.
“These serious allegations, particularly in a case that has drawn such national attention, deserve a careful and objective review by impartial judges,” Gershman and Cohen state.
'Extraordinarily Bad Judgment’
But an objective review of the allegations that will satisfy the public is likely to be hampered, the authors say, by Judge Reade’s participation at the court.
Reade heard cases together with two of the three judges presiding over a review of her own conduct that same day. The natural camaraderie and esprit de corps between colleagues would seem to defeat the emotional detachment and spirit of objectivity that must define the appellate proceedings.
Sympathy for a colleague under fire with whom one is working closely is all but inevitable. Even if people are capable of rising above their natural instincts, the problem of the appearance of partiality remains, Gershman and Cohen point out.
“The overarching principle of judicial ethics is that a judge must be impartial not only in fact, but also in appearance,” they stress.
In view of the allegations of judicial misconduct shrouding the case, scheduling Judge Reade as a fill-in within the same time frame as the Rubashkin hearing was at minimum “extraordinarily bad judgment,” the article asserts.
“At worst, it raises serious questions about the impartiality, fairness, and integrity of the adversarial criminal process.”
The authors note the fact that the last time Reade traveled to St. Louis, Missouri to join the eighth circuit judge as a “substitute” was five years ago. Observers wonder why she chose the time frame surrounding the Rubashkin appeal to do so again.
Undermining Public Trust
Regardless of her reasons, designating Judge Reade to sit with the Eighth Circuit at this time risks undermining public trust in the fairness of the justice system, the authors reason.
“The concern here,” they write, “is not only whether Rubashkin will believe that he got a raw deal if the appeal goes against him. Defendants who lose always think they got a raw deal. The real concern is whether the public will lose faith in the justice system's ability to do justice.”
Just as “close interactions” with federal prosecutors tainted the federal trial, similarly close interactions between Reade and the Eighth Circuit judges might compromise the appellate proceedings in the eyes of the public, the authors reason.
“There is also the theoretical concern that Judge Reade would defer to her eighth circuit colleagues on the cases she hears with them so that they will consider her conduct in Rubashkin more favorably. Yes, that may be only a theoretical concern, but that's what "appearances" are all about,” the article argues.
Des Moines Register: New Questions Surfacing
Concerns about Judge Reade temporarily joining the Eight Circuit Appeals Court on the day of the Rubashkin appeal hearing were raised earlier by the Des Moines Register in an article, “New Questions Surface About Impartiality Of Federal Judge.”
“The court schedule of a federal judge who faces allegations of bias in the financial fraud trial of Sholom Rubashkin has raised fresh questions about judicial impartiality,” the article noted.
“Judge Linda Reade—a judge in the Northern District of Iowa temporarily filling in on the appeals court—will hear cases with two of the three judges who will later listen to arguments in Rubashkin's appeal. Reade is also scheduled to sit with the same judges a day earlier.”
The article went on to quote law professor Steven Lubet of Northwestern University who observed that ”the scheduling is unfortunate because the subject of the appeal is judicial impartiality.”
A court clerk for the 8th Circuit who had a hand in the arrangements told the Des Moines Register the court does not view the schedule as a problem because judges “studiously avoid discussing pending cases.”
"I'm sure if the two judges who were sitting on the case thought it presented a problem, they would have directed me to make other arrangements," the court clerk said.
Many feel that questions about judicial bias are too sensitive to ignore.
“Reade’s decision to sit on Rubashkin's 2009 fraud trial, in which he was convicted of 86 fraud charges, has drawn criticism from many legal experts,” the Des Moines Register article reminded readers. “Many also questioned the 27-year sentence she handed down, two years more than the prosecution requested. Before sentencing, six former U.S. attorneys general signed a letter expressing their concern about the sentence sought by prosecutors.”
The article cited the support for a new trial that has come from prominent legal advocacy groups, including the American Civil Liberties Union of Iowa, the Washington Legal Foundation in Washington, D.C., and the National Association of Criminal Defense Lawyers.
These groups filed amicus briefs that focus on the constitutional and ethical impropriety of Reade's participation in the Postville raid and prosecutions, as well as her erroneous application of the sentencing guidelines.
The WLF brief in particular slammed the grossly disproportionate 27-year jail sentence imposed on Sholom Mordechai, saying it reflects serious errors in Judge Reade’s calculations as well as violations of the Federal Sentencing Guidelines.
Forty-Five Congressmen Protest To Holder
The Des Moines Register article cited letters from forty-five members of Congress who petitioned U.S. Attorney General Eric Holder to investigate the evidence of judicial and prosecutorial misconduct in the case. And last month, the article said, “three members of the House of Representatives asked Holder about the case when he testified before the judiciary committee.”
The reference was to an oversight hearing on the Department of Justice conducted by the House Judiciary committee, at which Holder was peppered with questions from committee members on issues of outstanding public concern.
Rep. Sheila Jackson Lee (D-TX) and Democratic National Committee chairwoman Rep. Debbie Wasserman Shultz (Fla) used the occasion to press Holder to investigate the injustices in the case.
Another committee member, Zoe Lofgren (D-CA), reminded Holder that the entire subject of the Postville raid and prosecutions were a stain on American justice due, to the subversion of constitutional rights and other flagrant abuses of government power.
The Rubashkin case is seen as emblematic of those abuses. It is increasingly viewed as testing the American criminal justice system in the unprecedented blurring of the lines between the executive and judiciary functions that allowed a federal judge, if not to virtually become an arm of the prosecution, to certainly appear as one.
“Looking at all the facts in the Rubashkin case, the average member of the public has cause to be concerned about whether Judge Reade's conduct created an appearance of partiality toward the government, as well as an appearance of prejudice toward Rubashkin that would require a new trial, the Huffingpost op-ed summed up.
“And most disturbingly, the same member of the public has further cause for concern, because the crucial question of improper appearances is going to be decided by an appellate panel composed of judges collaborating on cases together with the judge they will be judging the same day.”
Lubet, the law professor quoted in the Des Moines Register, said “he can't imagine why Reade decided to preside over the federal trial. She became a judge who made a point of assisting the prosecution in at least the initial stages of the case.”
Echoing a growing chorus of public sentiment as well as one of the appeal’s key arguments, Lubet said, "Why not have a judge who had nothing to do with the prosecution, instead of one who had devoted significant time and energy into facilitating it?"