Sholom Rubashkin, it’s easy to argue, is bad for the Jews. He’s the man who was in charge of Agriprocessors, which was the largest kosher meat producer in the country when its plant in Postville, Iowa, became the site of a huge 2008 immigration raid that led to the detention of 389 workers. A succession of mostly rural Guatemalans pled guilty to breaking immigration laws in a four-day mass processing that took place in makeshift courtrooms on a cattle fairground. The immigrants spent months in jail and were deported.
Rubashkin, meanwhile, was charged with 69 counts of harboring illegal immigrants for profit, 83 violations of child labor law, and 91 counts of bank fraud. He was tried on the bank fraud counts and found guilty of an accounting scheme that included depositing his company’s funds into the accounts of a kosher grocery store and a Jewish private school. Rubashkin was later acquitted on the child labor charges, and the government dropped the immigration charges in light of the bank fraud conviction. But those developments are almost an aside given the voluminous evidence of corrupt and illegal business practices. Agriprocessors already had a bad reputation, with sanctions for worker safety and environmental violations going back to 2004. The Jewish Daily Forward investigated, as did a group of Conservative Jewish leaders. And so the protests by some Jewish groups that Rubashkin’s prosecution was a product of anti-Semitism seem knee-jerk and unfounded. (Even if it is weird that U.S. authorities fought bail for Rubashkin by arguing that he was a flight risk because of Israel’s right of return for Jews.)
Still, it was kind of crazy for prosecutors to ask for a life sentence for bank fraud. A group of former attorneys general and U.S. attorneys called this sentencing request extreme, and the prosecutors backed down a bit, to 25 years. And then Judge Linda Reade sent Rubashkin to prison for 27 years—which essentially was a life sentence for the 50-year-old defendant. The heavy punishment is one reason why an assortment of lawyers and law professors, of various ideological stripes, want the Supreme Court to hear Rubashkin’s appeal. The other aspect of Rubashkin’s case that’s attracting attention is stranger. It involves the role that Judge Reade played in helping the U.S. attorney’s office plan the raid of the Postville plant.
The government started planning the May 2008 raid in October 2007. Anticipating hundreds of arrests, prosecutors contacted Judge Reade about how to handle them. Reade has characterized the weekly meetings that followed as nothing more than “logistical cooperation” that was no different than her involvement in “other multiple-defendant cases.” But a Freedom of Information Act request from the defense (which the government initially resisted) turned up emails, memos, and presentations describing the judge’s involvement as going beyond logistics and including “charging strategies.” Reade said she was “willing to support the operation in any way possible.” The government also described the judge as a “stakeholder” in the operation. And after the raid, Reade did in fact act like she had a stake in how it was perceived, telling the New York Times that prosecutors “have tried to be fair in their charging” and saying that immigration lawyers who were critical of the mass processing, “do not understand the federal criminal process as it relates to immigration charges.”
Should Reade have recused herself—decided not to preside over Rubashkin’s trial and sentencing—given her involvement in planning the raid? A federal appeals court rejected that argument last year, mostly on procedural grounds. Rubashkin’s lawyers let a deadline pass for asking for a recusal and only raised the issue after the trial, which poses a problem for him on appeal. 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.
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.