[By Debbie Maimon – Yated]

A powerful Reply Brief filed by Sholom Rubashkin and his attorneys uncovers fresh evidence of government misconduct in the withholding of crucial information from the defense that could have radically altered the outcome of the case.

The dramatic twist came just two weeks ago, as evidence emerged from new FOIA documents released by the FBI to Rubashkin attorneys just a few days before the brief’s filing deadline.

Sholom Mordechai has been sitting behind bars for almost five years. His ongoing quest for justice has powered a series of hard-hitting appeals that have cumulatively ripped aside the legal veneer covering a shocking saga of prosecutorial and judicial misconduct. These egregious breaches of the law demonstrate that Sholom Mordechai’s conviction and sentence were obtained through the violation of his constitutional rights.

The Reply Brief supports a Recusal Motion seeking to have Judge Reade recuse herself from the case. It accompanies a 2255 Motion seeking to vacate his conviction and sentence on the grounds that he was denied due process of the law and his right to a fair trial.

Both Motions have been opposed by the U.S. Attorney’s Office in Iowa’s Northern District (USAO) – whose lead prosecutors tried the case against Sholom Mordechai. The Motions trace the USAO’s repeated violations of the Federal Code as well as Judge Reade’s judicial misconduct in engaging in secret ex parte communications with the USAO in connection with Sholom Mordechai’s prosecution and trial.

SECRET COMMUNICATIONS CONTINUED TO SENTENCING PHASE

The Reply Brief establishes for the first time that those ex parte communications extended beyond the trial to the sentencing phase. It demonstrates, with the help of newly released FOIA documents, that Judge Linda Reade’s deep personal entanglement in the Rubashkin case requires her to recuse herself and turn the 2255 Motion over to an objective judge.

The FOIA documents provide new evidence of that multi-leveled entanglement. In particular they shed light on an obscure “threat investigation” conducted by the FBI after Judge Reade complained that threatening letters had been sent to her by supporters of Sholom Rubashkin.

Based on the FBI documents, the Reply Brief, filed by Rubashkin attorneys Stephen Locher and Paul Rosenberg of Des Moines, Iowa, charges the government with continuing to withhold crucial facts surrounding the “threat investigation.”

Had these facts been disclosed – particularly the ex parte communications about the investigation that took place between Judge Reade and the USAO – Sholom Mordechai and his attorneys would have vigorously sought Judge Reade’s recusal, the Brief states.

The Brief also elaborates on legal problems posed by the recently discovered conflict of interest involving Judge Reade’s husband, Michael Figenshaw, a senior partner in the Bradshaw Fowler law firm that represented Agriprocessors in extensive bankruptcy proceedings and continues to provide legal assistance to Sholom Rubashkin.

Figenshaw had access to privileged and sensitive information about Sholom Rubashkin’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 Recusal Motion stated.

The Motion questions how judicial neutrality could have survived the Figenshaw-Reade-Rubashkin entanglement. It demonstrates that, already compromised by the pre-raid and pre-sentencing ex parte communications, Judge Reade’s ability to remain objective was severely undermined by her husband’s legal and business relationship with Sholom Rubashkin.

‘THREATENING LETTERS’ SCANDAL

Many are aware of how secret pre-raid communications in 2008 between Judge Reade and the prosecutors robbed Sholom Mordechai of a fair trial. Until very recently, however, virtually nothing was known about the pre-sentencing ex parte communications that took place shortly before Sholom Mordechai was sentenced – and perhaps earlier. These secret communications culminated in Reade imposing a draconian sentence of 27 years in May 2010.

All that was known at the time about these communications was that in April 2010, one week before the Sentencing Hearing began, Rubashkin’s trial counsel received a government email informing them of an ongoing investigation into alleged threats against Linda Reade made by “Rubashkin supporters.” Copies of emails that supposedly contained the “threats” were attached to the government’s email.

According to sources close to the case, the letters Reade brought to the authorities’ attention were critical of the way she handled the Rubashkin trial. One letter talked about there being a G-d of justice who ruled the world and was watching the Rubashkin case.

The government email referencing these letters came from the US Attorney’s Office (USAO) of the Northern District. The USAO advised Rubashkin’s trial counsel that its office was not involved in the investigation because it concerned a Northern District judge.

When dealing with threats against a judge, prosecutors in the same district as the judge routinely turn the investigation over to another district. That eliminates all suspicion that prosecutors in the judge’s district might be excessively harsh with “threat” suspects in order to ingratiate themselves with the judge. It also eliminates suspicions that prosecutors who dislike the judge might be too lenient with the suspects.

A SLY INSURANCE POLICY

The Northern District thus recused itself from the investigation, turning the matter over to the Southern District. But in their email informing the Rubahskin legal team of this action, they slipped in a “carefully crafted half-disclosure,” the Reply Brief notes, “designed to allow the government to later argue ‘waiver.’”

In other words, the U.S. Attorney’s Office added a piece of information that they could later brandish as evidence that the defendant had a choice to protest some aspect of the prosecution against him but chose not to. He would therefore be barred in the future from using that element in an appeal.

What was that element? Contained in the “half-disclosure” transmitted to Sholom Mordechai’s attorneys was a partial admission by the government that Judge Reade had been in communication with the US. Attorney’s Office about the alleged threats “being investigated by the FBI.”

In that admission, the Assistant U.S. Attorney wrote, “Judge [Reade] expressed concern to the U.S. Marshal’s Service and our office’s management about the progress of these [threat] investigations.”

This last sentence – the USAO’S “insurance policy” against a Rubashkin appeal – explicitly references ex parte communications between Judge Reade and government prosecutors on the eve of Sholom Mordechai’s sentencing.

But what could be wrong with a judge communicating with prosecutors and law enforcement about the progress of the FBI investigation into so-called hooligans who threatened her?

What’s wrong is that Reade was coming to the wrong address, the Recusal Motion states. It wasn’t the Northern District’s business how the investigation was progressing and Reade knew it. So why was Judge Reade questioning prosecutors in the Northern District about a “threat” investigation being handled by the Southern District?

READE ‘FRUSTRATED’ OVER INVESTIGATION BEING DROPPED

The answer jumps out from the newly released FOIA documents, quoted in the Reply Brief. According to FBI reports, Reade’s allegations that she was being threatened turned out to be baseless. After meeting with and questioning the author of the letters, the FBI determined that she had in no way threatened the judge and had no intention of traveling to Iowa to cause her physical harm.

Far from being an active investigation as the government’s April 23, 2010 email to the defense implied, the FBI had dismissed the matter as harmless and closed the investigation many weeks earlier!

Those familiar with Judge Reade say the FBI’s shrugging off her allegations likely infuriated her. The government brief acknowledges she was “dissatisfied” and “frustrated” with the outcome of the investigation. Apparently, she then turned to her friends and colleagues in the Northern District, “expressing her concern about the [lack of] progress in the investigation” –apparently hoping they would take a more severe look at Rubashkin supporters who had the audacity to criticize her.

According to the government’s April 2010 email to the defense, prosecutors in the Northern District told Judge Reade “we are recused on the matter” and directed her “to the appropriate FBI office and the U.S. Attorney’s Office in the Southern District.”

What happened then? Inasmuch as the government has refused to turn over any of the emails, notes or records of conversations it had with Judge Reade about the threat investigation, one can only speculate.

“Perhaps Judge Reade felt Sholom Rubashkin was responsible for the alleged threats and felt a temptation to punish him,” the brief notes. Perhaps her cozy relationship with the Iowa prosecutors led her to believe they would break protocol and launch their own investigation to satisfy her.

Their failure to do so “might have contributed to her decision to impose a longer sentence on [Rubashkin] than the Northern District requested,” the Reply Brief suggests, adding that if the government were to simply turn over the requested documentation as they should have from the start, speculation would be unnecessary.

A THREATENED JUDGE IS A BIASED ONE

Whatever the actual scenario driving the USAO’s telltale email about the threats, the fact remains that a threat (or perceived threat) to the presiding judge can “create a bias problem,” the Reply Brief states, quoting the 8th Circuit in a similar case.

“Even if the judge were one of those remarkable individuals who could ignore the personal implications of such a threat, the public reasonably could doubt his ability to do so,” a 10th Circuit Court judge agreed in another case where a judge was threatened.

The apparent consensus is that the strong likelihood of bias in a judge who feels she has been threatened is enough to disqualify her from presiding over the case.

But Judge Reade had no intentions of recusing from the Rubashkin case. Perhaps this is why the threat investigation was kept secret from the defense until April 23 2010, just a few days before sentencing – an intensely pressured time for a defendant and his trial counsel when it would be close to impossible to pursue the matter.

DOCTORING UP THE FACTS

Although the FBI concluded by early March that there were no actual threats and no one intended to fly down to Iowa to harm Judge Reade, the U.S. Attorney’s Office omitted these conclusions entirely from its pre-sentencing email to the defense.

Instead it falsely presented the matter as an active investigation that was still clouded in secrecy. That discouraged the defense from asking for more information about the threats and Judge Reade’s involvement in the matter.

Waiting till the eleventh hour to inform the defense about it had another key advantage for Reade and the USAO apparently working in tandem with her: It would be too late for Sholom Mordechai to file a recusal motion.

Even now, despite repeated requests for the full range of Reade’s pre-sentencing communications with the USAO about the threat investigation, the government refuses to yield this information.

Sholom Rubashkin and his lawyers were thus forced to file a FOIA request to discover whatever they could. It was only when the FBI documents were finally released that they discovered the USAO’s subterfuge. Only then did they learn how prosecutors had thrown the defense “off the scent” by misrepresenting key facts about the threat investigation – hiding the true time frame in which it took place and the fact that the matter had been thoroughly researched and officially closed.

The government now insists the investigation is a “wholly separate matter unrelated to the Rubashkin case” (contradicting its own April 2010 email to the defense), and there is therefore no need to disclose anything more about it.

As expected, the government also claims that Sholom Rubashkin waived his right to seek Judge Reade’s recusal over the threat investigation, because he did not do so at the time he was informed (in the government’s sly half-disclosure, prior to sentencing) about her involvement.

DESPERATE MEASURES?

So damaging to Judge Reade’s and the USAO’s credibility are the disclosures in the latest Rubashkin Motions that one can’t help but wonder if a pattern of strange events that nearly prevented the Reply Brief and the 2255 Motion from being filed on time were deliberately orchestrated.

One recalls the bizarre circumstances six months ago in which former Rubashkin attorney James Wyrsh of Missouri was forced to withdraw from the case days before the 2255 Motion he was working on was to be filed.

Wyrsch and other members of the Rubashkin legal team, including trial counsel Guy Cook, were accused by the USAO of Iowa’s Northern District of harassing Rubashkin jury members.

They were charged with contempt of court by Judge Reade and forced to appear before her to answer outlandish charges about their role in the interviewing of Rubashkin jury members as part of the 2255 Motion. Faced with a sudden conflict of interest set up by Judge Reade, attorney Wyrsch was forced off the case – virtually on the eve of the Motion’s filing date.

Sholom Rubashkin was suddenly without a lawyer, the window quickly closing on one of his last legal bids for justice and freedom. Finding another lawyer at the last minute with expertise in 2255 Motions to undertake a case so intensely complex, with a deadline so tight, was almost impossible, sources close to the defense say.

One needn’t be a conspiracy theorist to sense something sinister in the legal maneuvering by the USAO and Judge Reade that stripped Sholom Rubashkin of his legal counsel at such a crucial time.

Similarly, though in a far less sensational manner, due to a most unusual delay in the Court’s response to a requested extension, the Reply Brief, too, came perilously close to not being filed on time.

Threatening indeed, these documents with their scathing disclosures. As additional FOIA documents become available, we may finally learn the whole sordid truth.

(Source: Yated)