By Tony Mauro, The National Law Journal
The chances of convincing the Supreme Court to grant review in a criminal case are astronomically low. So an increasing number of petitioners are making their pitch to the Court with high-powered amicus curiae groups on their side.
“We’re seeing more and more concerted campaigns” in criminal cases at the certiorari stage, said Sidley Austin partner Jeffrey Green. Green co-chairs the National Association of Criminal Defense Lawyers amicus committee. The association itself, Green said, has been “inundated” in recent years with requests for amicus help from defendants planning to petition the high court.
The latest example is a full-court press that has been mounted in a high-profile immigration case, aimed at making it impossible for the justices – and their law clerks – to ignore.
“The Court takes so few criminal cases, we wanted to make clear how unusual our case is,” said Nathan Lewin of the D.C. firm Lewin & Lewin. The case is Rubashkin v. United States, contesting the prosecution and sentencing of Sholom Rubashkin, owner of an Iowa meat processing plant who was charged with financial and immigration crimes after a 2008 raid found illegal aliens in his employ.
The petition in the case by itself telegraphs importance: joining Lewin on the brief is Paul Clement of the Bancroft firm in D.C. In addition to a docket heavy with the term’s top cases, Clement has taken on several criminal cases in which he claims prosecutorial abuse and recruits amicus help. In the Rubashkin case, the challenge claims judicial misconduct resulting in an unfair trial, as well as an unjustly high sentence.
To bolster those claims, Rubashkin’s legal team enlisted other big names from the start. At the trial stage, when the U.S. government recommended life imprisonment, six former attorneys general – ranging from Democrats Nicholas Katzenbach (who died May 8) and Ramsey Clark to Republicans Edwin Meese III and Dick Thornburgh – sent the judge a letter decrying the sentence as excessive for a first-time offender with record of community service.
More amici were enlisted before the U.S. Court of Appeals for the 8th Circuit. “They didn’t get us anywhere, frankly,” said Lewin, pointing to the appeals court decision. The decision affirmed the conviction and sentence and dismissed a motion seeking a new trial under Rule 33 of the Federal Rules of Criminal Procedure, which allows for retrials in “the interest of justice.” The Rule 33 claim was based on the conduct of trial judge Linda Reade, chief judge of the U.S. District Court for the Northern District of Iowa. A Freedom of Information Act lawsuit uncovered documents showing numerous ex parte communications between the judge and prosecutors in the planning stages of the raid. Legal ethics experts Stephen Gillers and Mark Harrison submitted affidavits calling the conduct of the judge and the prosecution unethical.
Now at the Supreme Court stage, Rubashkin’s lawyers are doubling down with more briefs from heavy-hitters. Seth Waxman of Wilmer Cutler Pickering Hale and Dorr filed on behalf of Meese, Thornburgh, and 84 other former judges and Justice Department officials including former FBI directors Louis Freeh and William Sessions, former solicitor general Kenneth Starr and former appeals judge John Gibbons. They decried the “profound unreasonableness” of Rubashkin’s sentence and the “deeply troubling” behavior of Judge Reade. Also weighing in on Rubashkin’s side are NACDL, the Washington Legal Foundation, the Aleph Institute, the Justice Fellowship and groups of criminal law and sentencing professors.
Another brief for the defendant comes from a relative newcomer to the amicus community, and the lawyer who wrote it will be familiar to justices, if not a household name elsewhere. The group is the Association of Professional Responsibility Lawyers, an organization of lawyers and scholars who specialize in the law of lawyering. W. William Hodes of the William Hodes Law Firm in Florida is counsel of record.
In 1996 Hodes, then 53, made news when Justice Ruth Bader Ginsburg hired him as a law clerk – the oldest clerk in modern times. He had been a student of Ginsburg at Rutgers School of Law – Newark. Now 68 and retired from teaching professional responsibility, Hodes has an active practice consulting on related issues.
His brief emphasizes that there is a split among circuits over the standard used in evaluating Rule 33 claims for a new trial. The Eighth Circuit rule allows for a new trial only if new evidence is brought to light that would likely result in an acquittal at retrial. Other circuits permit new trials if the original trial was fundamentally unfair or flawed, regardless of what the outcome at a new proceeding might be.
Spotlighting a genuine circuit split is the most important element of a successful effort to gain high court review, said Hodes. “I learned as a clerk that it’s not the justice or injustice of a particular case,” he said. “A sympathetic case with a lot of supporters alone does not get you there.”
The solicitor general’s office has until July 5 to respond to the Rubashkin petition, which means the Court is unlikely to act on it until next term.