Sholom Rubashkin and the Unethical Judge

A couple years ago, I wrote on what I believed was a miscarriage of justice in the federal case against Sholom Rubashkin, the CEO of a now-shuttered kosher meat facility in Iowa. The Rubashkin case is one that draws a lot of different opinions, in part because there are so many elements involved from the hiring of illegal immigrants to accusations from PETA about mistreatment of animals to the issue of financial fraud.

I addressed each of those issues in a previous blog, but it seems to me that the worst part is the conduct of the federal judge in that case, Linda Reade, who immersed herself in the original immigration raid of the plant and who also seemed to have a role in directing how federal authorities should act. As Emily Bazelon wrote recently in Slate, Reade's involvement definitely seemed to cross the line of judicial impropriety:

Still, in asking the Supreme Court to take the case, Rubashkin’s lawyers—who now include former Solicitor General Paul Clement—are asking the justices to take a stand on Reade’s participation in the immigration raid planning. The argument is that Reade and the prosecutors had an obligation to tell Rubashkin’s lawyers about all that pre-raid planning. Except in very limited circumstances, judges aren’t allowed to meet with one side in a case without the other, and so those weekly meetings broke the rules. Several friend-of-the-court briefs have been written in support of Rubashkin’s position, or are on the way, and the signers include former judges and U.S. attorneys. One of the briefs was co-authored by my sister Lara, who is a clinical teaching fellow at the University of California Hastings law school, and lawyer Allison Ehlert.

Bazelon adds:

In response, Reade and the government have said there’s nothing to see here. The judge attended all those meetings simply to save her court a headache. Her support for the raid was about logistics, nothing more, and there’s no reason that wearing her administrative hat would have biased her against Rubashkin once she put her judge hat back on. Maybe so. But judges aren’t just supposed to be impartial, they’re supposed to make sure they don’t create the appearance of bias. Wouldn’t it be better, as a general rule, if judges who meet regularly with prosecutors in advance of a cascade of high-profile indictments didn’t hear the cases that follow? Rubashkin’s prosecution was the culmination of the raid, in a sense. Getting him was the best way to justify the spectacle of the processing of the sad sack Guatemalans on the cattle fairground, which we know from her comments to the New York Times Reade felt she had to defend (and which another federal judge in Iowa later called a “travesty”).

The larger problem here is that, practically speaking, federal judges have enormous leeway in deciding whether to take themselves off a case because of potential bias or perceived bias. When they make a bad call, there are rarely any consequences. In all likelihood, the Supreme Court will turn Rubashkin down and refuse to intervene this time, too. The jury who convicted Rubashkin sat for 18 days and reviewed more than 9,000 exhibits, and the justices probably have as little appetite for a do-over as they do for smacking down Judge Reade. But even if you can’t bring yourself to care much about the fate of Sholom Rubashkin, the oddities of this case don’t sit well. Judges shouldn’t be able to make up their own rules for policing themselves.

 While Bazelon is not sympathetic to the rest of Rubashkin's legal case (contrary to my own opinion), nonetheless I believe that when a large number of former federal legal luminaries are willing to file briefs with the court saying they have a problem with what has happened, then I believe this is not an ordinary situation. Like Bazelon, I do believe that the Supreme Court will defer to Reade's judgment, which I believe will be a terribly mistaken thing.

The Rubashkin camp has put out a video that I believe is worth watching, as it quotes my friend and mentor, Harvey Silverglate, and I believe it does make a good case for pointing out the travesties in this particular case. Yes, it does come from Rubashkin's supporters, but in federal criminal cases, we simply cannot depend upon either the government or the mainstream media (which generally adores federal prosecutors) to tell the truth.

The High Court is due to issue its decision on granting Rubashkin certiorari on September 24. Given the outrages that the SCOTUS already has unleashed in the past few years, I only can hope that for once in their lives the justices care about the things that judges and prosecutors actually do that either violate the law or are very suspicious. We shall see.