Daily Israel Report

New Evidence: Rubashkin Judge Should Have Disqualified Herself

Sholom Rubashkin, sentenced to more than the 25 years sought by prosecutors, says Judge Reade worked together, pre-trial, with the prosecution.
By Hillel Fendel
First Publish: 8/9/2010, 12:42 PM / Last Update: 8/9/2010, 12:31 PM

Israel news photo

Sholom Rubashkin, sentenced to more than the 25 years sought by prosecutors, says Judge Reade worked together on the case, pre-trial, with the prosecution team.

Rubashkin, who was sentenced in June 2010 to 27 years in prison for bank fraud and related charges – two years more than the sentence sought by the prosecutors – now seems to understand why sentencing Judge Linda Reade seemed so partial against him.

New documents produced in response to a Freedom of Information Act request show that Reade met frequently, well before the trial, with the very law-enforcement team that was actively planning the May 2008 raid on Rubashkin’s Agriprocessors kosher meatpacking plant.  The documents also show that she participated in preparations for the raid, and expressed support for it.

Rubashkin’s lawyers, who have now filed for a retrial, say Judge Reade should have been legally disqualified from presiding over his trial. Though she was required to disclose these meetings and her participation to defense lawyers, she did not make any such disclosures before presiding over the trial last year, said Nathan Lewin, his lead appellate counsel.

The new evidence shows that Reade was not only regularly briefed on the raid preparations for more than six months beforehand, but also that she expressed her "support" for the raid, and directed that she be briefed on how it was to be carried out.

"Without disclosing to defense counsel her meetings with the U.S. attorney and the support she expressed for the raid,” Lewin said, “she presided at Mr. Rubashkin's trial, and then immediately had him imprisoned, and sentenced him to two years more in prison than the prosecution requested."

"Under federal law,” he explained, “Judge Reade was required to disqualify herself from serving as the judge in Mr. Rubashkin's trial – or, at least, to make a full disclosure to the defense lawyers so they could decide whether to file a motion for recusal. The jury's verdict must, on this account, be vacated, as well as Judge Reade's decision to deny release on bail to Mr. Rubashkin."

Freedom of Information - But Only for the Persistent
Lewin’s office reported that the government documents and e-mails were provided to him only after the trial concluded, even though the Freedom of Information Act request was filed in February 2009, more than eight months before the trial began. The government did not initially respond to repeated letters and calls from Rubashkin's counsel seeking the FOIA documents, and Rubashkin's attorneys eventually sued the Department of Homeland Security to procure the information.

The documents reveal that Judge Reade began meeting with the U.S. Attorney's Office in October 2007, seven months before the raid, and advised law enforcement officials of her vacation schedule so that the raid would meet her "scheduling needs." She also said in January 2008 that she was "willing to support the operation in any way possible." Two months later, Reade participated in a meeting that discussed "an overview of charging strategies, numbers of anticipated arrests and prosecutions, logistics, the movement of detainees, and other issues related to the [Agriprocessors] investigation and operation."

Disproportionate Sentence?
Much has been written about the seemingly disproportionate nature of the sentence handed down to Rubashkin, a Lubavitcher hassid and father of ten. He was sentenced to 27 years for defrauding a bank of $27 million dollars, yet Jeffrey Skilling, former president of Enron - which defrauded banks and investors of billions of dollars, and cost 20,000 jobs - was sentenced to 24 years, a sentence that was recently vacated on appeal. In addition, Bernie Ebbers of WorldCom was convicted of defrauding investors of $100 billion, and received less prison time than did Rubashkin. Dennis Kozlowski of Tyco was convicted of stealing well over $100 million, and has also received less jail time than Rubashkin. Hassan Nemazee, fundraiser for Barack Obama and Hillary Clinton, was recently sentenced to 12 years in prison for defrauding banks of $292 million.

"What can be learned from the redacted memoranda about Judge Reade's participation in the planning of the raid on Agriprocessors may be only the tip of the iceberg," Lewin said. "But even this tip is sufficient for an objective observer to doubt the perception of impartiality… Under federal law, a judge is disqualified, whether or not actually biased, if the average person on the street, knowing all the facts, would question the judge's impartiality."

Rather than disclosing her active participation in the meetings to either the defendant or his attorneys, Reade claimed she had only been engaged in "logistical cooperation" with Immigration and Customs Enforcement agents who planned the May 2008 raid on Agriprocessors.

As part of their motion for the new trial, Rubashkin's attorneys have requested that Judge Reade transfer the motion to another judge for determination, "in order to preserve public confidence in the impartiality of the judicial system."