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.
Amicus Brief Slams Judge For Misconduct, Prejudice
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.
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.”
NACDL: Reade Acted As Arm of the Prosecution
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.
How telling
“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.”
Sounds like Rosenberg in his handling of the Din Toarh, and should read this way:
“Legal experts who have studied Rosenbergs’s Sentencing Order note his propensity to turn his back on facts he doesn’t like, and to make use of veiled threats of retaliation.
“He lacks the intellectual nimbleness to engage his legal adversaries on the merits of the argument, and is reduced to brandishing the key weapon in his arsenal–his power to impose excessively harsh terms, such as a recall of Rav Osdoba” one critic said.”
What’s worse, a vicious secular court or a lackadaisical Jewish court?
yankel
iy”h
Liepa
Hashem runs the world and not this neveilah marshaas Reade, yimach shmoh v’zichroh.
free sholom
this is a fascinating article. it really shows that many of judge reade’s peers think poorly of her behavior (and of her)! it illustrates her abuse of power and her lies. in fact, i think SHE should stand trial for HER crimes!
NEEDS EXPLANATION
“”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“”
IS THIS PHRASE MEANT FOR THE RUBASHKIN CASE PLEASE SOMEBODY WITH LEGAL KNOWLEDGE PLEASE EXPLAIN THANKS
awacs
“”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“”
“IS THIS PHRASE MEANT FOR THE RUBASHKIN CASE PLEASE SOMEBODY WITH LEGAL KNOWLEDGE PLEASE EXPLAIN THANKS”
Yes. The gov’t wants to exclude the briefs filed on behalf of Rubashkin by ACLU, WLF and NACDL.
The most important thing about the gov’t’s motion is that it happened at all. Motions like this are rarely filed (I cannot remember another case). Evidently, the People really, really don’t want these briefs in front of the Court.
Disclaimer: I am a lawyer, but I am not your lawyer, and this comment is not legal advice.
yanki
sholom should be home iy”h for shabbos!!
FOR RABBI ROSENBERG-MONSEY
the following quote from the article applied to rosenberg for paskening about the election results when he screwed up big time on his due diligence prior to election…
“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.”
David vs. Goliath
If anyone wanted to see a modern day battle between David and Goliath this is it.
Ask congessmen to wright AG Holder
Publisize the letter we want our congressmen to send to the Attorney general holder so we can ask them to please do so. Did Cogresman Schumer send one yet?
Judge the judge
After SMR goes free IY”H.. Shouldn’t the judge be subject to disciplinary action due to misconduct?
lloyd a cohen
It is basically governmental gobblygook and political double talk which means that: yes we messed up the whole affair and overreacted, and yes Judge Reade violated the ground rules of her position. However, if we allow this to occur via the appeal and amicus curiae, then we expose the whole system and all previous actions to review and possible overturns, as well as exposing all the misconduct and prevcentable errors to public scurtiny–which would unddermine faith and trust in the whole judicial process. Therefore, in order to protect the system do not do anything and for the defendent–sorry!!!
Leah
If anyone is in contact with Mr. Rubashskin’s lawyers, there is a documentary called Food, INC. Near the end of the movie, maybe the 50 minute mark, it talks about a raid on a different meat packing plant. It explains how the government set the plant up. It sent chills down my spine watching this! I think it is important for people to see this.
lloyd a cohen
To number 10: to write to Holder would be a waste of time, he is not interested in justicei.e.,he dismissed the case which had obtained a default judgement against the new black panthers for voter intimidation on racial grounds. As with Schummetr, one wonders whose side is is on. Just reember the current administration led by obama has a tianna against Rubashkin because he fought the unions and won. Ao they are no going to do anything that would help him even given all the judicial irregularities
Dan Rusen
It seems clear that all agree that Rubashkin is guilty of some crimes, although just which ones are to be taken seriously..is not made clear in the article. The argument thus is not about his guilt, but his penalty as seen by his sentencing, based on evidence of judicial bias and overly zealous prosecution. With Holder in office poor Rubashkin will get out of jail some time after Jonathan Pollard.
oy
shame on you #1 and #8! we don’t have enough hate coming towards us, we need sinha between jews. you really think that your politically tinted comments are supposed to help a jew who is suffering? a little achdus. didn’t our people suffer enough already? your message is poisonus.
Unbelievable!
To #15. You are wrong about everyone agreeing that SMR is guilty of some crimes. He was aquitted on the original charges and the new charges were trumped up and forced on Agri by the gov’t actions. Check your facts before you make such a blanket statement.
To No. 15
The argument is not only about the sentencing. It is that SMR never had his day in court and was targeted by the prosecution. The so called crimes only came later. He did not do any crimes and is not guilty at all. The appeals team is clearly and rightfully questioning his guilt also. according to the Torah, the prosecution has no neemonus; it is amazing how many frum yidden swallow the prosecution’s libel as fact when so many details have already turned out to be fabricated, twisted and shaky.
A judge like Reade who uses her delicate position to victimize innocent citizens subjecting them to all sorts of torture and abuse for her own agenda is worse than a loose criminal armed on the street. She doesn’t just deserve reprimand. She deserves to sit in the same horrible conditions that she has impsoed on innocent people for longer than the sentences she came up with.