Dershowitz on Prosecutorial and Judicial Misconduct


Alan Dershowitz has written a National Law Journal article about the Sholom Rubashkin case, which was decided on appeal in the Eighth Circuit.  Dershowitz comments that the US Supreme Court should accept review of the case because of meetings between the judge and prosecutors that essentially made the judge part of the prosecution team.

Here’s the Eighth Circuit opinion.  Although I don’t think I would have raised the issues in quite the way these attorneys for Rubashkin did, the issue is clearly of growing concern to Americans.

How did we get here?

How did so many judges decide they are part of the prosecution team, rather than being about protecting the constitutional rights of the accused?  The prosecution already has nearly all of the advantages.  America leads the world in prosecution.  (Wikipedia article here).

And Americans are not able to pay for it any more.

In my humble opinion, judicial rulings in criminal cases are overwhelmingly pro-prosecution.  If judges reading this post don’t see it – I would invite you to consider that fish don’t see the water they swim in.

It’s even worse if judges are actively embroiling themselves in a criminal investigations before the case gets to court, as the defense argued in US v. Rubashkin.   The problem is that the judge becomes committed to the prosecution, becomes aligned with it.  In the Rubashkin case, there’s reason to believe the criminal prosecution could have been a face-saving mission to make it look like the raid was worthwhile.

This happens all too often in the system – using a criminal prosecutions to make government actors look like they were reasonable.  (I’m not saying all judges do this, but enough do to make it a real problem.)

Or, judges who lay a heavy hand on the side of government prosecutors may be afraid someone will criticize them if they don’t.  Some version of criticizing them for being “soft on crime.”  If judges are afraid of criticism for upholding the constitution, they just aren’t in the right job.

One way to attack the problem is by ensuring judicial ethics rules are followed.  I’d like to see the judge in the Rubashkin case considered for discipline for embroilment (like the California Court Commissioner was, my post here).

And I’m disappointed in the all-too-predictable Eighth Circuit response to the issue.  This response shows how steeped judges are in this culture. Who else would look at this case and think this is ok?

If the idea in appellate courts is that it is “too expensive” to have another trial, I would like to re-think that.  What’s too expensive is sending people to prison for 10, 20, 30 years, instead of remanding for a 2-3-day trial.

In cases like Rubaskin, where it certainly appears the evidence is there of the judicial conduct, the appellate courts really need to set an example.  Judges are people, not too different from the rest of us.  And time has taught us that most people will not conform their behavior if there is zero chance they will get in trouble for doing it.

Juries will convict if the evidence is there.  Of that I am sure.  But we don’t need the heavy hand of judges on the government’s side of the scales of justice.  The scales of justice as designed to depict balance.  Tipping the scales toward one side creates costs that Americans are no longer willing to bear.