Sholom Mordechai Rubashkin has been sitting behind bars for eight and a half years. His ongoing quest for justice, supported by over a 107 legal experts, has powered a series of hard-hitting appeals that have ripped aside the legal veneer covering a shocking saga of prosecutorial and judicial misconduct.
Court filings by attorneys Stephen Locher and Paul Rosenberg of Des Moines, and Gary Apfel of Los Angeles (working pro bono) reconstruct, step-by-step, the strategies by which Sholom’s conviction and sentence were obtained through the violation of his constitutional rights.
With the case back in the limelight due to its new defense filings with the 8th Circuit Court of Appeals, the compelling Motion to Recuse and Judge Linda Reade‘s denial of the motion have received new attention.
Through FOIA documents released by the government, the Motion to Recuse uncovered conflicts of interest on Judge Reade’s part that so impugned her ability to remain impartial, she was required to recuse herself on her own initiative, judicial experts say.
These disclosures – distinct from earlier FOIA revelations about ex parte communications that prompted the first appeal – expose hidden conflicts of interests that legal scholars have said would impair any judge’s ability to maintain neutrality.
SECRET COMMUNICATIONS CONTINUED TO SENTENCING PHASE
The FOIA documents provide new evidence that ex parte communications and Judge Reade’s entanglement with the Rubashkin case continued up to the eve of his sentencing.
In particular, they shed light on an obscure “threat investigation” conducted by the FBI after Judge Reade complained that threatening letters had been sent to her by supporters of Sholom Rubashkin.
Based on the FOIA documents, defense attorneys charged the government with continuing to withhold crucial facts surrounding the threat investigation, specifically the correspondence between Judge Reade and the USAO regarding the alleged threats.
Attorneys argue that the “threatening” letters might well have biased Judge Reade against Sholom. Had he been given the full picture as opposed to the doctored one described below, he would have sought the judge’s recusal.
JUDGE READE’S HUSBAND ENTANGLED WITH RUBASBKIN
The Brief also elaborates on legal problems posed by a conflict of interest involving Judge Reade’s husband, Michael Figenshaw, a senior partner in the Bradshaw Fowler law firm that represented Agriprocessors in extensive bankruptcy proceedings.
Figenshaw had access to privileged information about Sholom Rubashkin’s legal affairs that was material to the 2255 Motion. The recusal motion questions how judicial neutrality could have survived the Figenshaw-Reade-Rubashkin entanglement, as the strong possibility of confidential information leaking from Figenshaw to Reade (from husband to wife) destroys all appearance of impartiality.
Already compromised by the pre-raid and pre-sentencing ex parte communications, Judge Reade’s ability to remain objective was even further undermined by her husband’s legal and business relationship with Sholom Rubashkin.
In addition, the Motion states, Figenshaw, a senior partner in the firm, “had a financial interest … that could be substantially affected by the outcome of the bankruptcy proceedings.” When a fee dispute erupted between Bradshaw and Rubashkin-owned entities, and monies the law firm had billed for were not forthcoming, the Figenshaw-Rubashkin-Reade entanglement grew even more complicated.
The fee dispute raised the possibility that Figenshaw (and by extension, his wife, Judge Reade) may have been hurt financially by the dispute, profoundly heightening Reade’s conflict of interest in the Rubashkin case.
Connect the dots: Judge Reade is presiding over the case of a man whose actions, directly or indirectly, might be hurting her husband’s wallet.
Furthermore, the Motion to Recuse argues that Reade is unqualified to rule on the 2255 Motion inasmuch as she or her husband may be called as witnesses in an evidentiary hearing about government misconduct.
[The Motion to Recuse was filed together with the 2255 Motion, a brilliant document that reconstructs, piece by piece, government’s schemes to harm Sholom Rubashkin by thwarting the sale of AgriProcessors during its bankruptcy period, followed by an attempt to whitewash its actions in court through false testimony.]
She could also be called to testify regarding her own conflict of interest, attorneys note. “No judge, no matter how well intentioned, could be expected to evaluate her own actions… without legitimate questions being raised about impartiality,” the Motion stresses.
Precisely because she is a potential witness in the case, the Motion to Recuse says, Judge Reade must recuse herself from the case and turn over the 2255 Motion to a judge who has no prior entanglement and therefore engenders no suspicion of an appearance of bias.
INVENTING FACTS ON RECORD
Strikingly, Judge Reade continuously presents as judicial support for her rejecting the Motion to Recuse pages of assertions that are not based on facts on record and carry no legal weight. They were not excerpted from trial proceedings, deposition, evidentiary hearings or discovery. They do not even have the status of hearsay in which a witness testifies under oath that he overheard or was told a particular piece of information.
For example, she writes emphatically about what her husband knew or didn’t know regarding the Rubashkin case as if these assertions have the status of testimony given under oath, when they are nothing more than her own unsupported declarations.
She writes, “The undersigned’s spouse [husband Michael Figenshaw] …did not obtain any information concerning these proceedings because he had no involvement whatsoever in [Sholom Rubashkin’s] criminal case or bankruptcy proceedings, and he has no interest whatsoever that could be substantially affected by the outcome of this case…”
She then goes on to attest that her husband “as of December 2010 was no longer a partner of Bradshaw.” Although he continues to work for the law firm, it is only in a “limited” way, with a fixed salary not contingent on fees paid to the firm by various clients.
Judge Reade’s statements about the “limited” extent of her husband’s involvement with Bradshaw, and the scope of his inside knowledge of the Rubashkin case are offered as facts on record. Yet a quick review of the case reveals that her husband never gave a deposition or testimony under oath in connection with any aspect of the Rubashkin case.
The implication is that the judge apparently feels her utterances do not require any form of legal authentication. The mere fact that she uttered them is sufficient to establish them as legal facts. In actuality, however, these assertions carry as much legal weight as say, the statements of any spectator in the gallery who was not deposed or questioned and cross-examined on the witness stand.
“NO REASONABLE PERSON WOULD HARBOR DOUBT?”
Judge Reade oversteps judicial bounds in another way; by evaluating and approving her own contested actions as if she were someone other than herself.
In other words, Judge Reade plays the part of witness for Judge Reade. She offers repeated assertions about what the “undersigned” (i.e. Judge Reade) did or did not do, and what “the undersigned” thought and intended regarding the entire saga of the raid on Agriprocessors and the criminal prosecution that followed.
To justify breaches of judicial ethics, she is forced to create an alternate reality in which unpleasant facts – such as the country’s top legal experts demanding that she recuse from the case – are not allowed to intrude. For example, on page 71 of her Ruling to Deny, she writes that “a reasonable person…would not conclude that the undersigned’s impartiality might reasonably be questioned.”
Almost compulsively, on page 72, she repeats the “reasonable person” argument: “A reasonable person, being fully advised of all of the facts, would not harbor any doubt regarding the undersigned’s impartiality.”
Is she truly oblivious to the fact that 107 legal luminaries — including former attorneys general, senior officials at the Department of Justice, United States attorneys and federal judges — signed a friend of the court brief stating their expert opinion that she should have recused herself?
In addition, from 2010 to 2013, nearly 70 congressmen wrote letters to then Attorney General Eric Holder about the breaches of judicial ethics in the Rubahskin case related to Reade’s excessive involvement with the prosecution. They demanded that his office review the case.
Do all these prominent legal personalities not qualify as “reasonable people”?
In view of the wave of legal opinion advocating her recusal from the case, Judge Reade’s insistence that “no reasonable person would harbor doubt” about her impartiality is almost comical.
Perhaps the most disturbing aspect of Judge Reade’s brief rejecting the Motion to Recuse is her barely concealed outrage at Sholom Rubashkin for daring to try to undo his 27-year jail sentence. The judge’s brief suggests a mindset fixated on ensuring this is not allowed to happen at any cost.
“[Rubashkin’s] arguments boil down to a desire to invalidate all of [my] prior actions,” she writes. All her prior actions. Like a Freudian slip, this telltale comment suggests the author’s “prior actions” encompass much more than is known. She is deeply invested in the outrageous 27-year sentence. Under no circumstances can it be allowed to be “invalidated.”
“(Rubashkin’s) mudslinging is wholly inappropriate,” Judge Reade wrote, dismissing the reams of evidence of shocking prosecutorial misconduct as nothing but “accusations, especially unjust ones, [meant] to damage the reputation of an opponent.”
The prosecutors enshrined this mudslinging comment in their own brief, citing it in a block quote at the very beginning of their brief opposing defense motions seeking the right to appeal.
What irony. When unscrupulous people schemed to vilify and frame a man for a multi-million dollar rap and incarcerate him for life, neither judge nor prosecutors worried about mudslinging.
When star government witness Paula Roby told a client (quoted in the defense Application for Certificate of Appealability, p.14), “Rubashkin (whom Roby had never met) is the sleaziest [expletive] to ever walk the earth …” and she was “going to make sure he was put away for a long time,” mudslinging did not bother the judge.
Mudslinging was fine as long as the mud flew in only one direction.
“Mudslinging” became a problem only when defense investigations began to uncover gross prosecutorial misconduct and judicial impropriety. Although the final chapter of this sordid saga has yet to play out, one thing seems probable as efforts to learn the truth continue: the deeper one digs, the muddier things are going to get.