â€œFailure to ask for her recusal, however, put Sholom Rubashkin at an immense disadvantage for an appeal,â€ Rosenberg noted.
â€œThe grossly disproportionate sentence Reade imposed is a clear giveaway that something suspicious is at play here,â€ he stressed. â€œThat kind of sentence is so out of line with a fraud case, it automatically invites suspicion.â€
â€œPut that together with evidence of a judge deeply embedded in the criminal investigation and the wildly inflated sentence may still be shockingâ€”but itâ€™s no longer so mysterious.â€
CURRENT FOIA LAWSUIT TARGETS FOUR FEDERAL AGENCIES
An initial FOIA lawsuit targeting only ICE produced materials (post-trial) that uncovered Judge Linda Readeâ€™s leading involvement in the raid that should have disqualified her from presiding over the trial.
But the 8th Circuit Court of Appeals sidestepped the evidence of Readeâ€™s collusion, rubberstamping the governmentâ€™s position that Rubashkinâ€™s new-trial motion should be denied. Evidence of Readeâ€™s collusion with prosecutors was also the lynchpin of a Cert Petition to the Supreme Court, which was denied last year.
â€œWhat is different about the current litigation,â€ commented Rosenberg, â€œis that it is far more sweeping and all-inclusive, and also more focused. It addresses the Washington â€˜parentâ€™ agencies instead of the Iowa state regional offices, with 40 paragraphs detailing the fullest possible range of information.â€
All relevant documentation from ICE, the FBI, the Marshallâ€™s Service and the Executive Office of the U.S. Attorney that pertains to the 2008 raid and Postville prosecutions, is being sought in this FOIA lawsuit, said Rosenberg. â€œThat includes every email and document filed with these agencies that record or report communications with Judge Reade during the time frame in question.â€
The possibility of uncovering â€œa smoking gun with far more incriminating power than the redacted ICE documents produced,â€ is therefore more likely, the Jones Day attorney said.
This evidence can be used in a number of ways, one of which is a â€œHabeus Corpusâ€ motion, which produces conclusive evidence that the accused has been wrongfully incarcerated. In this case, using compelling proof of a judicial lack of neutrality, the defense would petition for a review of the case before an impartial judge.
MORE GOVERNMENT STONEWALLING
Rosenberg said the government has been surprisingly aggressive in resisting the FOIA requests, dragging its feet interminably, or claiming it has already released the information when it has not. â€œThe FBI has been the most recalcitrant of all the agencies,â€ he noted.
The stubborn resistance to giving over documents to which the public is legally entitled is just plain wrong, the attorney said. It means more motions, legal briefs and litigation, all of which is costly. â€œThis suggests the government, with its unlimited pockets, could be waging a war of attrition, hoping the accused will simply run out of money and give up.â€
The encouraging note in all this, said Rosenberg, is that â€œif we donâ€™t get relief, the case will go to the D.C. Circuit Court of Appeals, which has a long record of vigorously enforcing FOIA. We have a strong case and Iâ€™m optimistic. At the end of the day, Iâ€™m hopeful weâ€™ll get a significant amount of information that can be used to help Sholom Rubashkin.â€