Doubts About Federal Judge Haunt Case
Joel Cohen in Chabad, June 17, 2011
by Debbie Maimon, Yated
In a searing article, two prominent law professors have aired their concern over a bizarre twist in the Rubashkin case that they say "raises fresh questions about the integrity of the federal judiciary."
"At 1:30 p.m. this Wednesday, June 15th, in the 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 Huffington Post article begins.
The authors, Bennett Gershman of Pace University and Joel Cohen of Fordham Law School, have previously written about injustices in the case in the National Law Journal.
In the Huffington Post op-ed, "When A Judge Stumbles, Do Appearances Matter?" the authors criticize the decision of the Eighth Circuit to draft Judge Linda Reade as a temporary fill-in, to hear a number of cases with two of the same judges who will hear the Rubashkin appeal later in the day.
Reade sat with Judges Lavenski Smith and Diana Murphy a few hours before these judges, together with a third colleague, Chief Judge William Riley, were scheduled to hear oral arguments in the Rubashkin case.
Law professors Gershman and Cohen find this arrangement very disturbing.
"Judge Reade was the trial judge who secretly met with the prosecutors in planning and carrying out the raid and arrest of Rubashkin, presided at his trial without ever disclosing those meetings, and sentenced him to more jail time than even the prosecutors asked for," Gershman and Cohen point out.
They cite internal government documents that portray Reade as playing a key managerial role in the raid, and along with federal prosecutors, concealing this activity from the defense. This clandestine behavior prevented Sholom Mordechai's attorneys from moving for her recusal, the appeal argues.
"The question that many observers have asked-- and that figures prominently in Rubashkin's appeal," the authors write, "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 extra-judicial information about the case.
"These serious allegations, particularly in a case that has drawn such national attention, deserve a careful and objective review by impartial judges," Gershman and Cohen state.
'Extraordinarily Bad Judgment'
But an objective review of the allegations that will satisfy the public is likely to be hampered, the authors say, by Judge Reade's participation at the court.
Reade heard cases together with two of the three judges presiding over a review of her own conduct that same day. The natural camaraderie and esprit de corps between colleagues would seem to defeat the emotional detachment and spirit of objectivity that must define the appellate proceedings.
Sympathy for a colleague under fire with whom one is working closely is all but inevitable. Even if people are capable of rising above their natural instincts, the problem of the appearance of partiality remains, Gershman and Cohen point out.
"The overarching principle of judicial ethics is that a judge must be impartial not only in fact, but also in appearance," they stress.
In view of the allegations of judicial misconduct shrouding the case, scheduling Judge Reade as a fill-in within the same time frame as the Rubashkin hearing was at minimum "extraordinarily bad judgment," the article asserts.
"At worst, it raises serious questions about the impartiality, fairness, and integrity of the adversarial criminal process."
The authors note the fact that the last time Reade traveled to St. Louis, Missouri to join the eighth circuit judge as a "substitute" was five years ago. Observers wonder why she chose the time frame surrounding the Rubashkin appeal to do so again.
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(6) Sholom Rubashkin; Judicial Disqualificationby TheBlackFriar33178 views
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