No.  Not our team. Not the team of defense lawyers who try to keep a smile on their face and a positive attitude in the face of impending doom. But much to the surprise of defendants and the public, judges regularly become a cog in the wheels of prosecution, though it’s not necessarily as nefarious as it may sound.

After all, long before any defendant is arrested and any defense lawyer is retained, warrants get signed, ten day reports are submitted and, eventually lengthy and detailed discussions take place involving how many defendant will be shuffled through the courtroom in chains.  There needs to be a sufficient number of lawyers on call, since they can’t be arraigned without counsel.

There are logistics to manage throughout the courthouse, and they don’t happen by accident. It takes planning and forethought, both on the prosecution’s end as well as the court’s.  Did you think it was magic? Kismet? It’s no accident that the call went out to round up every CJA lawyer in town.

In an article in the National Law Journal, Alan Dershowitz and Ronald Rotunda  write about the notorious Agriprocessors take down in Iowa, where 600 riot-ready ICE agents and a Blackhawk chopper swooped in to capture 389 food workers in hairnets.  It was a glorious victory for law enforcement. 

The Big Boss of this heinous Kosher criminal conspiracy, Sholom Rubashkin, had to go down, which turned out not to be as easy as it seemed.  Trying every imaginable variation on a crime, the feds finally nailed Rubashkin on a hypertechnical bank fraud charge for certifying to his bank that his business was absolultely legit, when in fact there was a sneaky illegal working inside. Got him!  Iowa charged Rubashkin with over 9,000 offenses, and couldn’t nail down a single one.

Rubashkin was sentenced by federal Judge Linda Reade to 27 years, two more than the government sought.  Up to now, it sounds like a typical federal case, routinely unfair and absurdly disproportionate. Nothing to see here.  And then this:

But Reade did more than impose a disproportionate sentence. After Rubashkin’s conviction and sentence, defense lawyers learned that Reade, over a six-month period, had been actively engaged in planning the Agriprocessors raid. E-mails and affidavits showed that, long before the raid occurred, Reade met with ICE agents to discuss “charging strategies, numbers of anticipated arrests and prosecutions, logistics, the movement of detainees, and other issues related” to the investigation and operation. At one meeting, which law-enforcement personnel attended at the judge’s request, the judge stated that she was “willing to support the operation in any way possible, to include staffing and scheduling.” She was essentially part of the prosecution team.

The second sentence, without any additional illumination, stopped me dead in my tracks. How did the defense lawyers learn that Reade had become “part of the prosecution team?” 

This isn’t idle curiosity, but a fundamental question on the workings of federal prosecutions.  For those of you who do mostly state court work, the feds work very differently.  Agents don’t go out on the street every morning in search of a bad guy, then haul him into court. Almost every case involves months, if not years, of investigation before the takedown, including warrants of all stripes. Nobody gets charged until they’ve locked down their case, met all the defendant’s friends, neighbors and family, and gotten the goods on every person the defendant ever talked to.

The judge who will hear the case against the defendant is the same one who signed all these papers, heard all the allegations, which deepened the intrigue at each level, and coordinated the affair. By the time a defendant gets trotted into the well, the judge has digested every bit of the prosecution’s claims against him, knowing far more about his wrongdoing than his lawyers, and maybe even the defendant himself.  Not in every case, but often.

But this could be fixed, you say.  Just have a different judge sign off on the cases than the judge who will preside.  Well sure, that would help (though not quite fix the problem), but it suggests that federal judges aren’t fair enough to look beyond rank prosecutorial allegations and give the defense a full and fair hearing.  Legal fiction precludes any suggestion of this. Judges are fair, as a matter of law. Plus, it would create a logistical headache to separate the warrant-signing judge from the case itself.

Ugly as this may be, to have a judge who is supposed to be fair deeply embedded in case long before anyone is arrested, this is not only normal, but utterly unchallengeable. Judges rule on the validity of their own warrants all the time. The pass judgment on their own judgment every day. No problem here, since judges are inherently fair and can certainly change their minds. That it doesn’t happen too often isn’t a matter of unfairness, but just how darn good they are as judges in the first place.

This stuff makes defense lawyers nuts. We know what we’re staring at, and what the chances are that a judge will take a look at his own handiwork and find it lacking. And we know there is nothing we can do about it. We can make the motion for recusal, but it ain’t happening. And the mean things we say about the judge will only make him our mortal enemy for life, though, also as a matter of law, no judge ever takes anything personally.

We suspect that the judge was way too involved in the prosecution’s case before we ever got there to give us a ten percent chance at fairness. Our clients are absolutely certain that the judge is on the prosecutor’s payroll.  But we have nothing to argue, since the little bit we know about the judge signing the warrant, coordinating the many defendants, chatting ex parte with the prosecutors in advance to make sure they don’t blow the case, are all sanctioned by the law.  Try explaining this to a defendant.

So how did Rubashkin’s defense team learn that Judge Reade went even farther, even deeper, into the prosecution’s handling of this case than does the usual federal judge on an ordinary day?

Ironically, the 8th Circuit affirmed Rubashkin’s conviction, tossing aside judicial misconduct because there was no timely motion for disqualification.  After all, they didn’t learn about Judge Reade’s improper involvement until after the conviction.  Just how prejudiced does a judge have to be?  And how would the defense find out about it?

Dershowitz argues that the Supreme Court should grant cert and hear this case.

The Supreme Court should decide to hear this case and use it as a vehicle to examine cozy relations between a prosecution that was too zealous and a judge who was too involved in pretrial prosecution strategies. The Iowa legal director of the American Civil Liberties Union, one of the groups that filed an amicus brief on behalf of Rubashkin, warned that the judge’s involvement with the prosecution “immediately gave the appearance of unfairness.” It was more than appearance. It was actual unfairness.

How did they know? How would any of us know?  And even if we all know, does anybody care?

H/T Doug Berman