It presented an array of documents and sworn affidavits that uncovered government strategies to block the sale of Agriprocessors while it was still generating up to $300 million in revenue annually.
The documents show that Iowa U.S. Attorney’s Office, led by Assistant U.S. Attorney Richard Murphy and Assistant U.S. Attorney Peter Deegan, schemed to bring the meat-packing plant to ruin. They orchestrated the destruction of Agriprocessors, denying and then concealing their actions from Rubashkin’s defense lawyers.
Facts in the record show that Murphy, Deegan and other officials of the USAO (U.S. Attorney’s Office) hampered the trustee’s efforts to re-sell the plant and to keep it operating so that it could continue to generate revenue to repay the company’s debts. At the time of bankruptcy, Agriprocessors was worth over $80 million.
“Mr. Rubashkin’s right to due process of law under the Fifth Amendment was violated when the government failed to disclose exculpatory information concerning actions it took to intimidate the Agriprocessor’s bankruptcy trustee and prospective buyers…. and when the government presented misleading testimony concerning this issue at Sentencing,” the 2255 Motion stated.
The prosecutors’ “forceful intervention quashed interest of prospective buyers, increasing the loss attributable to Mr. Rubashkin by potentially many millions of dollars,” the brief said.
As it subsequently became clear, the scheme, coupled with contrived allegations aimed at enhancing the prison sentence, gave prosecutors the audacity to ask for a life sentence. Only after harsh criticism poured in from legal luminaries across the country did they back down and amend their recommendation to an outrageous 25 years.
Shrugging off criticism from the country’s most acclaimed legal scholars, Judge Reade exceeded the prosecutors recommendation, adding on two more years to Sholom Rubashkin’s virtual life sentence.
Eighty-six legal experts – including former attorneys general, senior officials at the Department of Justice, United States attorneys and federal judges – signed an amicus curiae brief supporting Rubashkin’s first appeal in 2012, asserting that the judge should have recused herself.
Over the course of the following two years, nearly 70 congressmen would separately write letters to Attorney General Eric Holder demanding a review of this case and expressing concern over what they condemned as judicial and prosecutorial misconduct.
The government’s response to the 2255 filing was to issue a terse categorical denial of all wrongdoing. The matter is now before Chief Judge Linda Reade.
BASICS OF THE RECUSAL MOTION
The Recusal Motion argues that Judge Reade is obligated to step down from the case after revelations that additional ex parte communications and exculpatory evidence was withheld from Sholom Rubahkin’s lawyers at the time of sentencing.
Had his attorneys had the benefit of this evidence, the motion states, they would have moved to have Judge Reade recused from the sentencing.
“Recusal is necessary because the case is littered with factual and legal issues so closely connected to the actions, statements, and relationships of the Presiding Judge that an observer might reasonably question her ability to remain impartial,” the motion states.
Filed by Iowa attorneys Stephen H. Locher and Matthew C. McDermott, the brief cites two categories of ex parte communications and judicial breaches by Judge Reade that have recently come to light.
The first involves Judge Reade’s husband, Michael Figenshaw, an attorney with a prominent Iowa law firm. The second category of disclosures pertains to what Judge Reade claimed were “threats” against her by people she believed to be Rubashkin supporters.
Judge Reade’s husband, Michael Figenshaw is a senior partner in the Bradshaw Fowler (BF) law firm that represented Sholom Mordechai in a number of bankruptcy proceedings, following the collapse of Agriprocessors after the 2008 immigration raid. These bankruptcy proceedings revolved around a number of Rubashkin owned companies such as Nevel and Cottonballs.
Court papers show the Rubashkin business entities were major clients of the Bradshaw Fowler firm, as ten different BF attorneys, two law clerks and four legal assistants billed time for Rubashkin bankruptcy matters.
The Bradshaw Fowler firm was in possession of significant confidential information from Sholom Rubashkin that was directly relevant to his financial trial. The firm also had privileged client information that pertained to the 2255 Motion.
Judge Reade never disclosed to Rubashkin attorneys her marital relationship with an individual whose firm was in possession of Rubashkin-sensitive information during the weeks leading up to the sentencing.
Had Rubashkin’s attorneys known about the Bradshaw Fowler angle at the time of sentencing, and the possibility of privileged information traveling inadvertently or consciously from Figenshaw to Reade – from husband to wife – they would have immediately sought Judge Reade’s recusal, the motion states.
COUNTRY’S FOREMOST RECUSAL EXPERT WEIGHS IN
In a sworn affidavit filed with Recusal Motion, the country’s foremost expert on recusal issues, Richard Flamm, expressed his opinion that the Figenshaw-Rubashkin-Reade entanglement obligated Judge Reade to recuse herself on her own initiative.
Flamm said any reasonable person “would believe that Judge Reade was well aware of this [entanglement] and would have expected her to recuse herself from presiding over Mr. Rubashkin’s criminal trial.
It is self-evident that such an entanglement is fertile ground for partiality – or the appearance of partiality – to taint the court proceedings.
She was required “to disclose the fact of her marital relationship with a senior BF partner to Mr. Rubashkin’s counsel, so that counsel could consider whether to file a motion to disqualify her on this basis,” the recusal expert said.
“The fact that that Bradshaw Fowler was representing Rubashkin and his companies, not opposing him, does not weaken the appearance of partiality,” the Motion stresses.
“Someone in Mr. Rubashkin’s position might legitimately be concerned that the judge will ‘bend over backwards’ to avoid any appearance of partiality toward him, thereby inadvertently favoring the opposing party (in this case, the government).”
While Figenshaw did not personally represent Rubashkin, he certainly knew that his firm was working closely with him. Figenshaw was also undoubtedly aware that his wife was presiding over Rubashkin’s criminal trial, daily reports of which were carried by all the leading newspapers.
Despite the compromising situation in which his connection to Sholom Rubashkin placed Judge Reade, she failed to inform the Rubashkin team that she was married to a senior partner in the law firm representing him.
That Figenshaw-Rubashkin relationship declined after BF was replaced as counsel by a government trustee who took over the management of Nevel and other Rubashkin properties.
BF law firm lost most of the Rubashkin account and a fee dispute arose between Bradshaw Fowler and the Rubashkins. As Figenshaw was a senior partner in the firm, he was no doubt impacted by the financial ups and downs of the Rubashkin account and may have held Rubashkin responsible – another circumstance that might make a defendant wonder about Judge Reade’s ability to remain impartial.
Whether factual or speculative, the very possibility of entanglement between Reade’s husband and Rubashkin automatically promotes the appearance of partiality and would mandate Judge Reade’s recusal, the brief said.
“No judge, no matter how well intentioned, could be expected to address matters in which her husband’s law firm was – and still is – providing assistance to Mr. Rubashkin, and rule on other issues of which she has knowledge from extrajudicial sources without legitimate questions being raised about impartiality,” the motion says.
READE TURNED TO NORTHERN DISTRICT USAO TO INVESTIGAGE ALLEGED ‘THREATS’ EVEN AFTER THEY RECUSED
The recusal motion cites a second issue that generated ex parte communications between Judge Reade and the US Attorney’s Office of the Northern District that should have been shared with Sholom Mordechai’s attorneys. That is the subject of the so-called “threats” — or what Judge Reade perceived as such – that were emailed to her in the months preceding the 2010 sentencing. Reade linked these alleged threats to Rubashkin supporters and turned the emails over to the USAO of the Northern District.
Since they were deeply involved in prosecuting Sholom Rubashkin, objectivity in conducting an inquiry into “threats” that Reade believed came from Rubashkin supporters would be hard to maintain. The USAO of the Northern District therefore recused themselves, referring the matter to the Southern District.
The Northern District should subsequently have played no role in the investigation, yet Judge Reade engaged them in ex parte communications about it. The prosecutors failed to disclose these communications to the defense, the Recusal Motion states, beyond informing them they had recused themselves on the matter.
Obviously, a defendant would want to know if the judge about to sentence him believes that his supporters “threatened” her. A defendant in this situation would legitimately wonder if the judge might retaliate by being unduly harsh. He would want to be armed with as much information as he was legally entitled to in order to protect his right to due process.
“Indeed, there are only two apparent reasons why the Presiding Judge would reach out to the USAO to express concerns about the threat investigation despite that office’s recusal,” the Recusal Motion states.
“Either 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.”
In tracing the rampant improprieties surrounding the prosecution and sentencing of Sholom Rubashkin, the Recusal Motion highlights a brazen pattern of judicial and prosecutorial highhandedness that takes disdain for the law to new levels. In that sense, it is possibly a game changer, capable of bringing long-deferred justice for Sholom Rubashkin a bit closer.