At 1:30 p.m. this Wednesday, June 15th, in the Thomas Eagleton 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 appeal -- United States v. Sholom Rubashkin -- involves Rubashkin's conviction of multiple counts of bank fraud, for which he was sentenced to 27 years imprisonment. His trial followed the 2008 raid -- the biggest in U.S. history -- by more than 600 federal Immigration and Customs agents (ICE) on Rubashkin's kosher meat-packing plant in Postville, Iowa and the arrest of 389 undocumented workers, mostly Mexican. Rubashkin was arrested for immigration-related crimes, but re-arrested and tried on the financial crimes. Whether Rubashkin is guilty and deserves the astonishingly harsh sentence are pertinent issues that will be argued on his appeal. But just as pertinent -- maybe more so -- is the conduct of the judges, trial and appellate, called upon to administer justice in his case. (Full disclosure: Co-author Gershman has signed amicus briefs on behalf of Rubashkin).
The central claim on Rubashkin's appeal is that the federal judge who presided at Rubashkin's trial and sentence, and who imposed a prison sentence greater than even the prosecutors asked for, and that six former United States Attorneys General -- Nicholas Katzenbach, Ramsey Clark, Edwin Meese, Richard Thornburgh, William Barr, and Janet Reno -- and seventeen former federal prosecutors and high-ranking Justice Department officials have decried as an unbelievably harsh punishment for a first-time, non-violent offender, "appeared" to be heavily involved with the government prosecutors and federal agents in planning and carrying out the unprecedented raid. Internal government documents, discovered by Rubashkin's lawyers for the first time after his trial, showed that the trial judge -- who is, indeed, the Chief Judge of the Federal Court in Cedar Rapids, Iowa -- met frequently, sometimes weekly, with the prosecutors and law enforcement agents in planning and executing the raid for six months before the raid and Rubashkin's arrest, in which the following was discussed:
- Prosecutors gave the judge "a briefing" regarding the number of criminal prosecutions they intended to pursue relative to this investigation.
A few points about these meetings. The meetings were private and secret. The meetings were never disclosed to Rubashklin or his lawyers, either by the prosecutors or the judge -- even after Rubashkin was arraigned and represented by counsel in court. When the defense lawyers first learned about these contacts after the trial and sought a new trial based on the judge's secret involvement with the prosecution, the judge rejected the claim, stating that her involvement was merely "logistical." Logistical? If these conferences were merely logistical, why didn't either the judge or the prosecutors have the good sense to make a stenographic record of the meetings in which the judge was described as a "stakeholder"? Why did the defense only learn about them for the first time through a Freedom of Information Act request? If these numerous contacts between the trial judge and the prosecutors who would be trying the case before her were so innocuous, why were they concealed from the defendant and the public?
The question that many observers have asked -- including several members of Congress -- and that figures prominently in Rubashkin's appeal, 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 extrajudicial information about the case, without ever disclosing any of this information to the defense. These are serious and very atypical appellate allegations, particularly in a case that has drawn such national attention. These allegations deserve a careful and objective review by impartial judges.
And so, there is yet another, even more troubling issue relating to the integrity of the federal judiciary. The appeal will be argued before Chief Judge William Riley of the Eighth Circuit, and circuit judges Lavenski Smith and Diana Murphy. Two of these judges -- Smith and Murphy -- will be hearing arguments in other appeals on Wednesday morning with another judge, Chief District Judge Linda Reade of Cedar Rapids. To be sure, it is not unusual for district judges to be asked to participate on circuit panels. It is, indeed, a practice used in virtually every circuit -- and frankly, a necessary procedure because of the considerable workload of circuit judges.
What is unusual here, even startling, is that Judge Reade was the trial judge in the Rubashkin case who secretly met with the prosecutors in planning and carrying out the raid and arrest of Rubashkin, presided at Rubashkin's trial without ever disclosing those meetings, and sentenced Rubashkin to more jail time than even the prosecutors asked for. Notably also, the last time she sat on the Circuit Court was five years earlier, and there is no way of knowing why she is sitting on the same day that her conduct will be reviewed, and with two of the three judges who will be reviewing it. At a minimum, sitting together like this reflects extraordinarily bad judgment in designating Judge Reade to sit at that time on the eighth circuit. At worst, it raises serious questions about the impartiality, fairness, and integrity of the adversarial criminal process.
The concern here 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. The overarching principle of judicial ethics is that a judge must be impartial not only in fact, but also in appearance. The test for an "appearance of impropriety" is whether a judge's impartiality might reasonably be questioned "by the average person on the street." Concern with the appearance of justice reasonably suggests that a judge whose judicial conduct is so heavily under attack, and the sentence she imposed was strongly criticized by six former U.S. Attorneys General, and who has not sat on the eighth circuit bench in five years, should perhaps wait until the case has been decided to closely interact with the judges who are reviewing her conduct just as she closely interacted in private and secret meetings with the prosecutors who tried the case before her. 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.
So, 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. And most disturbingly, the same average member of the public also has cause for concern because this exact question of improper appearances is going to be decided by an appellate panel composed of judges who, if appearances mean anything, are sitting and collaborating on cases together with the judge they will be judging the same day. Or has the public become so cynical about the judicial system that their only response will be: "What's the difference; he's probably guilty anyway."