At the same time as these individuals project themselves as devoted guardians of the law, the Recusal Motion traces their repeated violations of judicial and ethical codes of conduct, as well as underhanded tactics often masked by a thin veneer of legality.
The motion cites the opinions of scores of leading legal and judicial experts that the Rubashkin trial and 27-year sentence is a grievous miscarriage of justice that needs to be corrected.
In legal circles familiar with the case, the narrative of Judge Linda Readeâ€™s collaboration with the AUSA prosecutors in the Rubashkin case has become a metaphor for prosecutorial and judicial misconduct. It is increasingly referenced as a case study of how justice is subverted when the judicial and executive branches are allowed to merge, as happened in the Rubashkin case.
The Recusal Motion cites the opinions of renowned legal luminaries, with the weight of decades of public service in the nationâ€™s highest judicial posts, who have studied the voluminous Rubashkin court papers.
In amicus briefs filed with the Rubashkin appeal to the Eighth Circuit and the U.S. Supreme Court, and in letters to the Department of Justice and Attorney General Eric Holder, these revered experts support the defense claim that Sholom Rubashkinâ€™s conviction and sentence were obtained through the violation of his constitutional rights.
READE-FIGENSHAW-RUBASHKIN TRIANGLE DEMANDS JUDGEâ€™S RECUSAL
The most explosive revelations in the Recusal Motion cite Judge Readeâ€™s failure to inform the defense of her marital relationship to Michael Figenshaw, a senior partner in the Bradshaw Fowler law firm that represented Sholom Mordechai in extensive bankruptcy proceedings – and continues to represent him in related matters.
Figenshaw continues to have access to privileged and sensitive information about Sholom Rubashkinâ€™s legal affairs, information that was material to the 2255 Motion. The possibility of that information traveling from Figenshaw to Reade, from husband to wife, destroys all appearance of impartiality.
The Motion questions how judicial neutrality could have survived the Figenshaw-Reade-Rubashkin entanglement. It asserts that, already compromised by the pre-raid ex parte communications, Readeâ€™s ability to remain objective was severely undermined by her husbandâ€™s legal and business relationship with Sholom Rubashkin. That liability alone mandated her voluntary recusal.
In the aftermath of bombshell revelations about the Figenshaw-Reade-Rubashkin triangle, Readeâ€™s failure to disclose her marital relationship with Figenshaw that would have warranted her recusal, has brought the impropriety of her conduct into even sharper focus.
ATTEMPTS TO SABOTAGE THE RECUSAL MOTION
Most people are aware of how secret pre-raid communications between Judge Reade and the prosecutors tainted Sholom Mordechaiâ€™s trial and gave him grounds to seek a new one.
The Recusal Motion builds on these findings. It presents newly discovered evidence of additional ex parte communications between the judge and prosecutors shortly before Sholom Rubashkinâ€™s sentencing. These communications revolved around â€œthreatsâ€ that Judge Reade alleged had been made against her by people she suspected of being Rubashkin â€œsupporters.â€
In studying the Recusal Motion, one is shocked to find indications that the prosecutors contrived pretexts to discredit Sholomâ€™s current legal counsel, Stephen Locher, using â€œhis prior service as US Attorney in the Southern District of Iowa at the time of the threat investigationâ€ as an excuse.
Stephen Locher, for his part, has testified he has no conflict of interest that would make him withdraw from representing his client, the Recusal Motion states. But the AUSA countered that they intend to bring up the matter with Judge Linda Reade, nonetheless, at a future hearing.
Forcing his lead attorney out of the picture at a critical hour, with a powerful appeal under way, would undoubtedly sabotage Sholom Mordechaiâ€™s legal bid for a new trial or an equitable sentence.
COUNTERING THE SABOTAGE
But the Recusal Motion deftly counters this sabotage, asserting that the governmentâ€™s turning to Judge Reade to adjudicate the alleged â€œconflict of interestâ€ is itself a powerful imperative for her to recuse.
â€œThe need for [Judge Readeâ€™s] recusal grew even more acute this month in light of the USAOâ€™s informing one of Mr. Rubashkinâ€™s attorneys that it believes a conflict of interest exists as a result of his prior service as an Assistant U.S. Attorney for the Southern District of Iowaâ€¦â€ the Recusal Motion states.
â€œâ€¦ There is no reason for the government to interject itself between [Sholom Rubashkin] and his counsel or raise the matter to the Courtâ€™s attention,â€ the Motion asserted, anticipating that the government â€œmight intend for the Court toâ€¦ disqualify [Mr. Locher].â€
But putting Judge Reade in the position of making this decision when the investigation possibly involves her own ex parte actions is wrong, the Motion states. No judge should be allowed the unfair privilege of being judge and jury over her own conduct in a case over which she is presiding, and â€œrecusal is appropriate.â€
THE TRUTH SURFACES
Ironically, the latest revelation of ex parte communications that threaten to incriminate both Reade and the AUSA surfaced through an email the AUSA office itself sent to defense counsel on the eve of the April 2010 sentencing.
The email informed defense counsel of an ongoing investigation into the alleged threats, along with copies of a few of the emails that supposedly bore the threats.
The governmentâ€™s message advised Sholom Mordechaiâ€™s attorneys that the U.S. Attorneyâ€™s Office of the Northern District was not involved in the investigation because it involved a Northern District Judge.
[Standard policy is that when dealing with threats against a judge, prosecutors in the same district as the judge turn the investigation over to another district. That eliminates all suspicion that prosecutors in the judgeâ€™s district might use extra harshness against â€œthreatâ€ suspects in order to please the judge. Or the suspicion that if they dislike the judge, they might be too lenient with the suspects.]
So the prosecutors of the Northern District recused themselves from the investigation. But in addition to informing the Rubahskin legal team of this, they slipped in a line at the end of the email they probably assumed would be lost in the intense legal activity surrounding the sentencing. â€œJudge [Reade] expressed concern to the U.S. Marshalâ€™s Service and our officeâ€™s management about the progress of these investigations.â€
TELLTALE GIVEAWAY ABOUT EX PARTE COMMUNICATIONS
This innocent-sounding line is loaded with negative implications for Judge Reade and the U.S. Attorneyâ€™s Office. It lies squarely at the heart of the Recusal Motionâ€™s allegations of ex parte communications between Reade and government prosecutors on the eve of Sholom Mordechaiâ€™s sentencing.
But what could be wrong with a judge communicating her concerns about the progress of the FBI investigation into so-called hooligans who threatened her?
The problem, the Recusal Motion states, is that Reade was coming to the wrong address. It wasnâ€™t the Northern Districtâ€™s business how the investigation was progressing and Reade knew it. She knew very well that the U.S. Attorneyâ€™s office had turned the entire matter over to the Southern District.
So why was Judge Reade questioning prosecutors in the Northern District about the â€œthreatâ€ investigation?
â€œEither she wanted to enlist the support of USAO in trying to convince law enforcement agents to move the investigation along; or she wanted to express frustration to a listener she perceived to be sympathetic. Either scenario raises serious questions about whether the presiding judge was too close with the USAO,â€ the Recusal Motion states.
EXCESSIVELY COZY WITH PROSECUTORS
In a nutshell, Reade was so cozy with the prosecutors, she felt comfortable crossing a line with them; discussing a matter they had already recused from and could not properly get involved in.
Perhaps the Southern District wasnâ€™t taking her story of â€œthreatsâ€ by Rubashkin supporters seriously enough. Perhaps they looked at the evidence and pooh-poohed it and she hoped her friends in the Northern District would prompt their colleagues to give her allegations more weight.
Or perhaps a more ominous scenario was playing out. Sholom Mordechaiâ€™s sentencing was to commence in just a few days. Prosecutors had done their best to jack up his sentence as high as they dared, originally stating their intention to ask for a life sentence. Using all kinds of contrived charges, they â€œpiledâ€ on allegations of perjury, obstruction of justice and whatever else they could concoct.
Perhaps the alleged â€˜threatsâ€™ by his supporters could be used to the prosecutorsâ€™ advantage in this effort, while also creating a backlash of public anger against Sholom Rubashkin that would vindicate the draconian sentence Judge Reade was planning to – and did in fact – impose. After all, this is a man whose â€œsupportersâ€ had the temerity to â€œthreatenâ€ a federal judge. He deserved no mercy.
While these scenarios are sheer speculation, one fact is clear: The prosecutors, who had no qualms about hiding pre-trial ex parte communications with Reade, apparently felt they had to share something with Rubashkin attorneys regarding pre-sentencing communications.
So they sent one lone email to defense counsel right before the sentencing in which they wrote they had received a communication from Judge Reade – without specifying whether it was a phone call, letter or email – asking about progress in the FBI â€œthreatsâ€ investigation.
This was their way of saying, â€œThis threat investigation in a very important issue to Judge Reade and we may use it against your client, so we are hereby forewarning you as required by law.â€
But the law requires more than that. According to facts in the Recusal Motion, defense counsel requested copies of all communications from Judge Reade to the AUSA about the threat investigation. The prosecutors are legally bound to turn over this material. At the time the Recusal Motion was filed, they had still not done so.
TRUMPED UP â€˜CONFLICT OF INTERESTâ€™
Does this mean information about ex parte communications in the â€œthreatsâ€ investigation is still being deliberately withheld (against the law) by the AUSA?
Based on facts in the record, it appears the answer is yes. This becomes clear from the prosecutorsâ€™ pretexts to discredit Rubashkin attorney Stephen Locher by claiming he has a conflict of interest in the case, as he once served in the Southern District when the threat investigation was active.
By making this claim, AUSA is saying Locher has information that would be helpful to Sholom Mordechai but canâ€™t share it with his client, due to a competing obligation of confidentiality to the government.
If an attorney canâ€™t represent his client properly due to having to be loyal to another client (in this case the government) he ought to withdraw, the implication goes. That would more than suit the government, for whom the Recusal Motion is a formidable challenge and a sign that the case they thought was dead and buried is simply not going away.
Ironically, by contriving difficulties for Sholom Rubashkinâ€™s legal counsel, the Recusal Motion points out, the AUSA ends up tipping its hand and foolishly incriminating itself.
Because it is thanks to their overzealousness about attorney Locher that one learns they have withheld ex parte evidence from the defense.
If Locher has information that would be helpful to his client that he canâ€™t share because the government wants it kept under wraps, isnâ€™t that an admission that the government is withholding information the defense is legally entitled to?
Had they turned over to defense counsel whatever documents are in their possession about Judge Readeâ€™s allegations of threats and all ex parte communications related to this investigation, Stephen Locker would no longer have a conflict of interest. Because everything would be out there on the record as required by law, and he could help his client without worrying about his obligation to maintain confidentiality to the government.
Apparently deciding that knocking Rubashkinâ€™s counsel out of the game was the priority of the hour, the prosecutors â€œdiscoveredâ€ he had previously worked for the Southern District and therefore might have been privy to confidential information about the â€˜threatâ€ investigation. Lo and behold: a conflict of interest with which to disqualify him!
But this meant opening up a potential Pandoraâ€™s Box. It meant reminding the defense about that threat investigation and the telltale line that â€œJudge [Reade] expressed concern to the U.S. Marshalâ€™s Service and our officeâ€™s management about the progress of these investigations.â€
It meant recalling evidence of ex parte communications between Reade and the AUSA of the Northern District at a time when the latter was recused from the investigation. That undoubtedly put the AUSA in a bit of a dilemma. As can be seen from court papers, the answer for the AUSA of the Northern District was to continue to stonewall defense requests to turn over the evidence.
And bank on Rubashkinâ€™s counsel being discredited due to a trumped up â€œconflict of interest.â€ With luck and good planning, perhaps nothing would come in the end of the entire Recusal Motion, the most serious challenge to date to the prosecutorsâ€™ and Judge Readeâ€™s subversion of the law in the Rubashkin case.
SOME CASES NEVER DIE
The government has already asked for an extension on the time frame usually granted for a response to a defense motion. Will Judge Reade grant an evidentiary hearing as the Recusal Motion requests? Will she ultimately recuse, or will she simply deny the Motion and force the defense to bring its powerful case to the Eighth Circuit Court of Appeals?
One recalls a comment by Sholom Mordechaiâ€™s appellate counsel Nathan Lewin, who wrote the cert petition to the Supreme Court. â€œSome cases never dieâ€¦ They continue to haunt the public mind until justice is done. The Rubashkin saga is such a case.â€