New questions surface about impartiality of federal judge
JENS MANUEL KROGSTAD • DES MOINES REGISTER
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.
Defense attorneys argue that Rubashkin, who is serving a 27-year sentence, deserves a new trial because U.S. District Chief Judge Linda Reade failed to disclose all of the meetings she held with prosecutors before a 2008 immigration raid on Agriprocessors, a kosher meatpacking plant in northeast Iowa where Rubashkin served as an executive.
Oral arguments are scheduled for the afternoon of June 15 at the 8th U.S. Circuit Court of Appeals in St. Louis.
That morning, 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 scheduling is unfortunate because the subject of the appeal is judicial impartiality, said Steven Lubet, a law professor at Northwestern University.
However, he said he doesn't expect it to disqualify any of the judges from hearing the case.
"I would call it awkward, but I don't think there's anything more to say about it," he said.
The court does not view the schedule as a problem because judges "studiously avoid discussing pending cases," said Michael Gans, clerk of court for the 8th Circuit.
"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," Gans said.
It's common for district court judges to fill in on the appeals court. Reade last did so in 2007, court records show.
Reade did not respond to a request for comment. Rubashkin's attorneys declined to comment.
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.
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 American Civil Liberties Union of Iowa, the Washington Legal Foundation in Washington, D.C., and the National Association of Criminal Defense Lawyers filed legal briefs in support of Rubashkin's appeal.
Forty-five members of Congress have written to U.S. Attorney General Eric Holder to ask questions about the handling of the case. Last month, three members of the House of Representatives asked Holder about the case when he testified before the judiciary committee.
Reade had previously acknowledged that she worked with the prosecution on logistics before the raid to ensure attorneys and interpreters would be available for the 389 workers arrested on immigration charges, but offered no further details.
The defense argued Reade failed to disclose that she began meeting with law enforcement officials more than six months before the raid, and that she discussed topics far beyond "logistical cooperation."
Reade participated in a series of meetings in which she was briefed on "the ongoing investigation" and the raid, according to Immigration and Customs Enforcement documents obtained by the defense through a public records request.
Federal prosecutors responded that Reade only participated in logistical planning and did not know the target of the raid. Prosecutors noted that Rubashkin has not said how Reade's participation in the meetings prejudiced his trial.
Lubet, the law professor, said he can't imagine why Reade decided to sit on the trial.
By doing so, she became a judge who made a point of assisting the prosecution in at least the initial stages of the case, he 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?" he said.
She decided to sit on the trial for two reasons:
1. She did nothing wrong. The judicial code of ethics does not prohibit the type of contact Judge Reade had with the prosecution.
2. The raid has nothing directly to do with Rubashkin's trial. Rubashkin's financial crimes were uncovered by Agriprocessors' bankruptcy trustee and reported to the US Attorney's office long after the raid was over. That led to Rubashkin's arrest on the financial charges he was later convicted of.
3. Iowa's Northern District is a tiny court. It has one full-time judge, Linda Reade, and one magistrate, Jon Scoles, and one half time judge. For a case this complex and this large, the chief judge – Reade – would always be the one to take it.
4. Before the trial started, Rubashkin's attorneys had the opportunity to ask Judge Reade's to recuse herself. They made a conscious decision not to do so, meaning Rubashkin has no right to ask for a remedy now. That is why Nathan Lewin keeps claiming he has "new evidence," which always turns out to be old evidence that he has greatly embellished. He hopes this will give Rubashkin standing to attack Judge Reade on this issue, because without this, Rubashkin's only hope is re-sentencing – which means that, at best, he will probably be in federal prison another 10 to 20 years.