*By Debbie Maimon
Lending serious weight to calls for a retrial in the Rubashkin case, the National Association of Criminal Defense Lawyers (NACDL) has filed a sharply worded amicus curiae brief with the 8th Circuit Court of Appeals, urging the court to vacate Sholom Mordechai’s conviction.
Mr. Shalom Rubashkin (nicknamed "Sholom")
NACDL’s brief joins two others that were filed last week by the WLF (Washington Legal Foundation) and the ACLU (American Civil Liberties Union), supporting the appeal filed by Nathan Lewin and other appellate attorneys this month. The WLF brief called for the Court of Appeals to remand the case to a new judge for re-sentencing. It said the 27-year jail sentence reflects serious errors in Judge Reade’s sentencing procedures as well as violations of the Federal Sentencing Guidelines.
The brief slammed the arbitrariness and “unreasonableness” that tainted Reade’s calculations and led to a grossly disproportionate sentence.
ACLU argued for vacating the conviction, insisting that Judge Linda Reade was wrong to preside over Sholom Mordechai’s trial after helping to plan the raid of Agriprocessors and the arrests that led to his prosecution.
The brief stopped short of accusing Reade of misconduct, saying that the likelihood of bias was enough to require her to recuse herself from the case, and therefore justifies a new trial for the defendant. “Due process demand it,” the brief said. “The Constitution demands it.”
The NACDL brief, authored by the eminent legal scholar Professor Ronald Rotunda, went much further. It minced no words in accusing Reade and federal prosecutors of “ethical misconduct.” And it pointed not to “likelihood of bias,” but explicit evidence of it.
The brief said that the ICE documents support the claim that Reade acted “as an arm of the prosecution.” They “show that the Chief Judge was prejudiced in favor of the Government and thus must disqualify herself.”
“She should not have discussed strategies and the ongoing investigation and other issues with prosecutors,” the NACDL brief said, noting that Reade violated the Constitution repeatedly by attending the meetings at which these discussions were held.
Were it absolutely necessary, she could have sent a court reporter to transcribe the minutes of the meetings, in order to glean logistic information she needed. But instead she “made herself a factual witness” to disclosures that should have been off limits to her as the judge who would later preside at the trial, the brief elaborated.
Judge’s Denials Are Useless
The amicus curiae went on to say that having violated legal mandates in numerous ways, “[Reade] is now left to deny the allegations — but Section 144 does not allow the Chief Judge that choice.”
In other words, a judge does not have the option of refusing to recuse herself by “denying the allegations” or insisting that her conduct was above reproach. She must turn the case over to another judge to make that determination, since it is axiomatic that a person cannot be objective when assessing his own conduct.
Reade ignored these provisions of the Constitution. Her order rejection the new-trial motion “is “replete with denials” that she did anything improper that would justify calling for her recusal, the NACDL brief noted.
It listed examples of Reade’s inappropriate denials and attempt at self-justification. Referring to herself as “the undersigned,” Reade wrote:
· “The undersigned did not receive any details beyond [logistical information].”
· “The undersigned’s planning was limited to ensuring that a sufficient number of judges, attorneys and interpreters would be available and that the court would be able to function efficiently at an offsite location.
· “The undersigned did not tour the Cattle Congress grounds [a makeshift detention facility where arrested workers were held] in Waterloo, Iowa.”
The fact that the ICE documents directly contradict these assertions raises credibility issues that can only be resolved through an evidentiary hearing, argues the Appeal filed earlier this month by Sholom Mordechai’s attorneys. Only when Judge Reade and other officials can be questioned under oath will the truth emerge.
An Operation Gone Sour
The NACDL brief is one of the first legal voices outside the case to train a spotlight on the strategy that federal agents used to prop up a case that turned out, to the government’s embarrassment, to be built on sand.
Although the raid nabbed almost 400 immigrants, the federal indictment had charged Agriprocessors with multiple felonies and lurid charges such as harboring a drug lab, storing caches of weapons at the plant, torturing workers and other crimes. These charges turned out to be completely fabricated.
“The massive raid befitted a bust of a well-armed drug cartel,” the brief noted. But agents came away empty-handed, leaving the government open to ridicule for having invested such massive resources in the operation.
“The trial judge, who was part of the planning and pre-arrest activities,” and had thus invested heavily in the operation, helped find a remedy to justify it “when this elaborate raid on illegal immigrants did not bear fruit.”
The remedy was to find another crime, pump it up into a massive indictment and pin it on one person. That created the grounds to “impose a sentence of over a quarter-of-a century” on the defendant, the brief explained.
The Real Crime: Being Unpopular
In a striking conclusion, the brief quoted a 1940 speech given by Justice Robert Jackson when he served as Attorney General, that describes the greatest danger of the abuse of prosecutorial power.
“His words are worth repeating here for they really refer to the [Rubashkin] case,” Professor Ronald Rotunda wrote at the brief’s conclusion.
“‘With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.
‘In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it. It is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.
‘It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. “It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the governing group.’”
--Robert Jackson, The Federal Prosecutor, Address Delivered at the Second
Annual Conference of United States Attorneys, April 1, 1940 [Italics added].
The government has filed a “motion to resist” the filing of all three amicus curiae briefs on the grounds that they introduce nothing new and would merely waste the government’s and the court’s time. The motion, feebly reasoned and self-contradictory, reflects a desperation to suppress arguments from prominent advocacy groups that strongly bolster the Appeal.
Threat Of Retaliation
Legal experts who have studied Reade’s Sentencing Order note her propensity to turn her back on facts she doesn’t like, and to make use of veiled threats of retaliation.
“She lacks the intellectual nimbleness to engage her legal adversaries on the merits of the argument, and is reduced to brandishing the key weapon in her arsenal—her power to impose excessively harsh jail terms,” one critic said.
He cited a telling example: “She embedded a threat in the Sentencing Order designed to intimidate the defendant from appealing. The threat is couched in legal language but its intent is clear. “In effect, it’s a warning that ‘should an appeals court send this case back to me for re-sentencing, I will impose an even higher sentence.’”
That threat did not go unnoticed by the appellate lawyers. The appeal argues that the insinuation in the Sentencing Order itself is the strongest argument for taking Reade off the case in the event of re-sentencing.
Judge Reade’s preemptive refusal, even if she would be found to have erred, to entertain any notion of reducing Sholom Mordechai’s prison sentence, underscores the bias and rigidity that has characterized her conduct in the case all along, notes the Appeal.
Her own words make it mandatory for “re-sentencing to go before a different judge with an open mind and a willingness to abide by this Court’s mandate.”
37 Congressmen Have Petitioned Holder
With the heightening of legal and congressional protest against the perversion of justice in a dusty corner of Iowa, a growing list of congressmen are petitioning Attorney General Eric Holder to investigate the Rubashkin case.
To date, 37 Members of the U.S. House of Representatives have sent letters. Some of the most recent ones come from Jan Schakowsky (D-IL), Tom McClintock (R-CA), and Steve Israel (D-NY), the 5th highest ranking Democrat in the congressional leadership.
Many of these letters protest the judge’s secret meetings with prosecutors in the months before the raid, as well as the unreasonably severe sentence meted out to Sholom Mordechai.
While Holder has thus far refused to become involved in the case, the pressure continues to build. Six months ago, the idea of certain organizations throwing their support behind Sholom Rubashkin’s right to a new trial would have been laughed at. The changing landscape greatly boosts hopes for positive developments in the case in the very near future.
NACDL's Amicus Brief is located at:
*Edited by TLR's volunteer Susan M. Leslie Brodie is on vacation. Originally written by Debbie Maimon in January of 2011, and is being republished here with permission.