The law provides that even the appearance of partiality is sufficient grounds for recusal, since it undermines public trust in the fairness of the justice system. One does not have to go so far as to prove actual partiality. In Judge Reade’s case, however, both of these disqualifying factors were strikingly present, the brief argued.
The brief asked the Court of Appeals to remand the motion for a new trial to a different judge unfamiliar with the case. Attorneys argued at the very least for an evidentiary hearing, enabling a truthful assessment about the multiple undisclosed meetings between judge and federal prosecutors suspected of crossing permissible bounds.
Marching To the Prosecutor’s Drum
In a summary of the arguments presented by the appeal brief, attorneys described a criminal prosecution that stands out for its unreasonable and unaccountable harshness, and that an evenhanded judge would have sought to temper.
“From beginning to end, the Rubashkin case has been pursued by the federal prosecutors with unprecedented aggressiveness,” the brief said
Far from exercising balance and moderation, the judge simply marched in tune with the prosecutors, clearing the many legal obstacles in their way with one-sided rulings, the document attested.
The string of examples of prosecutorial “overkill” included:
(a) the denial of bail on the grounds that, as a Jew, the defendant might flee to Israel to escape justice
(b) pinning Sholom Mordechai with fraud charges for allegedly violating an obscure boilerplate clause in a loan agreement with a lending bank
(c) subjecting Sholom Mordechai to seven superseding indictments
(d) charging him with a criminal violation of the Packers and Stockyards Act of 1921, never before enforced against anyone
(e) sentencing him to virtual life imprisonment for the disproportionate crime of misrepresenting the value of collateral.
“The Appellant [Rubashkin] trusted that in the open court process, the prosecutors’ harsh excesses would be fairly tempered by the presiding judge so that justice would prevail,” Sholom Mordechai’s attorneys said.
This trust was validated in the state trial, in which state prosecutors filed an astounding 9,311 misdemeanor counts against Sholom Mordechai. After prosecutors voluntarily dismissed more than 99 percent of the charges, he was acquitted on all the counts that remained.
The federal trial, however, lacked even the appearance of evenhandedness, with the judge “tilting the trial against Mr. Rubashkin” with prejudicial rulings, the brief stated.
The attorneys ascribed Reade’s one-sided rulings as a byproduct of her working so closely with the federal agents in mapping out the raid that she had lost all objectivity. She was too heavily invested in the criminal proceedings.
“It was simply human nature that a federal judge who so extensively participated in the planning of the raid…would be unable to exercise the restraining influence on the prosecutors with whom she had worked so closely…” the attorneys contended.
The brief went on to list three other cogent arguments for overturning the conviction.
Cloak-and-Dagger Evidence Designed to Poison Jurors
The second ground for reversal centered on the judge’s ruling that permitted “lurid evidence” of alleged harboring of illegals to be introduced at the bank-fraud trial.
This flew directly in the face of the judge’s earlier ruling that evidence of immigration violations would “spill over” onto the financial crimes, confusing and blindsiding the jury. Nonetheless, almost three of ten trial days were devoted by prosecutors to dramatic testimony regarding alleged violations of immigration laws.
The attorneys drove home their message about the impact on the jury of sensational cloak-and-dagger testimony by quoting directly from the trial transcript.
In the quoted testimony, the prosecutor is asking jurors to give a sinister twist to an innocuous meeting between Sholom Mordechai and an employee who was begging for a loan. The prosecutor, Peter Deegan, admits that no one actually heard this conversation, so he makes up for the gaps in his “evidence” by inventing an imagined dialogue.
Prosecutor to Jury: We’re talking about hundreds and hundreds and hundreds of current employees working under bad documents. And the defendant knows about this starting in at least May of 2005.
And they were putting these folks on [a secret] payroll. Okay? Remember the Hunt payroll? All right. About 86 employees with the bad IDs, okay, that the defendant says, “Come in after hours and we’ll put them on the Hunt payroll. Don’t tell Elizabeth Billmeyer about it.”
Remember, first, [the defendant] meets with Brent Beebe out by the barns. Okay? Carlos told you about it. Laura Althouse told you about it. Defendant meets with Brent Beebe, and they have one of those conversations that nobody can hear!
Spillover Effect Criminalized Sholom Mordechai
“The jury surely paid more attention to, and was influenced more by, sensational testimony regarding a ‘secret’ meeting behind a barn,” than bland, arcane information about financial transactions that basically put jurors to sleep, the attorneys argued in the brief.
Sholom Mordechai sought to prove that experts in immigration law had been retained by Agriprocessors to help him screen out illegal workers and were even occupied in checking the authenticity of employees’ documentation when the raid occurred. This testimony was barred by Judge Reade, who called it irrelevant.
Misleading Jury Instructions
In addition, the jury instruction regarding violation of the immigration laws made “spill over” even more likely. Jurors were told to conclude that Sholom Mordechai had lied to bank officials about being in compliance with the law not because he knowingly hired illegal workers, but because he “recklessly disregarded” their presence on Agriprocessors’ workforce.
“Reckless disregard” is a completely different state of mind than knowingly and intentionally committing a particular act. The jurors were misled by this revision of the indictment that charged the defendant with knowingly and intentionally harboring illegals.
False Money-Laundering Charges
Another argument for reversal of the conviction is based on the erroneous labeling of certain money transfers as “money laundering.”
In an answer to a special questionnaire, the jury said that the funds allegedly laundered “did not involve illegal profits.” In other words, they acknowledged that customer payments that were temporarily rerouted to Postville’s yeshiva and kosher grocery to keep the meatpacking plant and these other institutions running, did not come from illegal activities and were not used for illegal activity. They were ultimately channeled right back to the lender bank as per the loan agreement.
This important finding required the entry of a judgment of acquittal and the dropping of the money-laundering charges. Instead of dropping them, prosecutors and Judge Reade used them to add ten years to Sholom Mordechai’s sentence.
“The outrageously severe sentence imposed on Mr. Rubashkin by Judge Reade must be reversed because the improper money-laundering convictions added to Mr. Rubashkin’s offense level, and because the trial judge failed to calculate ‘loss’ correctly under the Sentencing Guidelines,” the brief concluded.
[The 100-page appeal detailed many more profound injustices and examples of twisted thinking in the way the trial was conducted and the staggering 27-year jail sentence derived. These aspects of the appeal will be discussed next week.]