Saturday, Jul 20, 2024

Rubashkin Attorney Speaks Out About New FOIA Lawsuit

An attorney from the Washington-based Jones Day law firm, in an exclusive interview with Yated, said he hopes a current multi-pronged FOIA lawsuit on behalf of Sholom Rubashkin will uncover significant evidence that can be instrumental in gaining relief for him. The lawsuit was filed by Mr. Larry Rosenberg in September 2011, in a second, much broader effort to obtain full disclosure from all four federal agencies involved in the 2008 federal investigation leading up to the Postville raid, and the subsequent Rubashkin trial.

“What’s undeniable, based on the record,” Rosenberg said, “is that there was an egregious breach of judicial ethics on Judge Reade’s part. She became so deeply invested in the criminal investigation that she lost objectivity and made matters worse by failing to disclose this involvement.”
“At the time, the defense team had no idea Judge Reade was so compromised. She had refused other requests for recusal from other defendants in the case – and as every attorney knows, you antagonize a judge by asking them to recuse. It seemed the wisest route was not to alienate her.”


“Failure to ask for her recusal, however, put Sholom Rubashkin at an immense disadvantage for an appeal,” Rosenberg noted.


“The grossly disproportionate sentence Reade imposed is a clear giveaway that something suspicious is at play here,” he stressed. “That kind of sentence is so out of line with a fraud case, it automatically invites suspicion.”


“Put that together with evidence of a judge deeply embedded in the criminal investigation and the wildly inflated sentence may still be shocking–but it’s no longer so mysterious.”




An initial FOIA lawsuit targeting only ICE produced materials (post-trial) that uncovered Judge Linda Reade’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 Reade’s collusion, rubberstamping the government’s position that Rubashkin’s new-trial motion should be denied. Evidence of Reade’s collusion with prosecutors was also the lynchpin of a Cert Petition to the Supreme Court, which was denied last year.


“What is different about the current litigation,” commented Rosenberg, “is that it is far more sweeping and all-inclusive, and also more focused. It addresses the Washington ‘parent’ agencies instead of the Iowa state regional offices, with 40 paragraphs detailing the fullest possible range of information.”


All relevant documentation from ICE, the FBI, the Marshall’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. “That includes every email and document filed with these agencies that record or report communications with Judge Reade during the time frame in question.”


 The possibility of uncovering “a smoking gun with far more incriminating power than the redacted ICE documents produced,” is therefore more likely, the Jones Day attorney said.


This evidence can be used in a number of ways, one of which is a “Habeus Corpus” 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.




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. “The FBI has been the most recalcitrant of all the agencies,” 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. “This 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.”


The encouraging note in all this, said Rosenberg, is that “if we don’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 I’m optimistic. At the end of the day, I’m hopeful we’ll get a significant amount of information that can be used to help Sholom Rubashkin.”




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