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Waxman Amicus Brief—One of Six Urging Cert in Rubashkin Case—Raises Questions of Bias

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Waxman Amicus Brief—One of Six Urging Cert in Rubashkin Case—Raises Questions of Bias

May 10, 2012, 05:15 pm CDT

Corrected: Former Solicitor General Seth Waxman has filed an amicus brief urging the U.S. Supreme Court to accept cert in the case of Sholom Rubashkin, an executive at a kosher meatpacking plant convicted in a multimillion-dollar bank fraud that came to light after a large-scale immigration raid.

The brief is one of six amicus briefs urging the court to accept the case, according to a press release and the Yeshiva World News. “Legal observers say it is unusual for so many amicus briefs to be filed at the ‘cert petition’ stage,” notes the Yeshiva World News. Rubashkin, 51, was sentenced to 27 years in prison, though prosecutors had sought a life sentence.

The Waxman brief (PDF) says evidence uncovered after trial found that the presiding judge had been personally involved in the immigration raid to a far greater degree than previously disclosed. Evidence suggested the judge met with prosecutors and immigration agents about preparations for the raid, and attended a discussion of logistics and charging strategy, the brief says. “The available facts concerning this prior involvement raise serious questions as to whether the appearance of judicial impartiality was maintained in this case,” the brief asserts.

Waxman’s brief takes issue with a ruling in the case by the St. Louis-based 8th U.S. Circuit Court of Appeals. The appeals court found that the federal rule governing new trials provides no remedy for newly discovered evidence that goes to a trial’s fundamental fairness, rather than guilt or innocence. The brief says the “outlier rule” adopted by the 8th Circuit is at odds with decisions by other appeals courts.

The brief was signed by 86 former officials and judges, including former attorneys general and other prior Justice Department officials. They include former FBI directors Louis Freeh and William Sessions, former Attorneys General Edwin Meese and Dick Thornburgh, and former Solicitor General Kenneth Starr.

Other amicus briefs were filed by the National Association of Criminal Defense Lawyers (PDF), the Washington Legal Foundation (PDF), the Association of Professional Responsibility Lawyers (PDF), a group of 40 legal ethics professors (PDF), and the Justice Fellowship (PDF). Some of the briefs deal only with the fairness of the sentence, while others deal with recusal issues and the 8th Circuit’s new trial standard.

Updated at 1:29 p.m. to correctly state that Seth Waxman is a former U.S. solicitor general.

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