Citing New Revelations, Rubashkin Asks for Judge Reade’s Recusal

“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, filed by Iowa Attorneys Stephen H. Locher and Matthew C. McDermott, states.

Eighty-six legal experts — including former attorneys general, senior officials at the Department of Justice, United States attorneys and federal judges — previously signed a friend of the court brief in this case, stating that the judge should have recused herself.

This latest legal filing in the ongoing efforts to overturn what has been widely perceived as a travesty of justice came after attorneys for Rubashkin learned that Judge Reade’s husband is a partner in the Bradshaw Fowler law firm that, at the time the criminal trial was pending and through the date of sentencing, represented several companies partially owned by Sholom Rubashkin.

The Bradshaw Fowler firm obtained significant confidential information from Mr. Rubashkin that was directly relevant to the trial and possess significant information that is directly relevant to the 2255 Motion.

“The fact that this conflict arguably works in favor of Mr. Rubashkin — i.e., the Bradshaw Fowler firm effectively represented him and his companies — does not weaken the appearance of partiality,” the recusal motion reads. “A party in Mr. Rubashkin’s position might legitimately be concerned that the judge will ‘bend over backwards’ to avoid any appearance of partiality, thereby inadvertently favoring the opposing party,” it states.

In addition, the history between the Rubashkin entities and the Bradshaw Fowler firm is mixed — although the Bradshaw Fowler firm saw the bankruptcy of one of the Rubashkin-owned companies through to the end, the firm was replaced as counsel in the bankruptcy proceedings of another Rubashkin-owned entity, and replacement counsel challenged Bradshaw Fowler’s fees.

Although Judge Reade’s husband is not mentioned in any of the Bradshaw Fowler fee petitions as having taken part in representing the Rubashkin-affiliated companies, 10 other attorneys from the Bradshaw Fowler firm did bill time on the matters, as did two law clerks and four legal assistants. The Bradshaw Fowler firm has roughly 45 attorneys; meaning that nearly 25% of its attorneys billed time on the Rubashkin-affiliated matters.

“No judge, no matter how well intentioned, could be expected to evaluate her own actions and statements, 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 personal knowledge from extrajudicial sources without legitimate questions being raised about impartiality,” the motion says.

The motion for recusal also refers to a pattern of communications that the Judge had with the prosecutors without the presence of the defense. These conversations, known in legal jargon as ex parte, included conversations with the prosecutors for months prior to charges being filed in Mr. Rubashkin’s criminal case, as well as prior to his sentencing.  

Several months before the sentencing hearing, the judge received several emails that she perceived to be death threats, and that she felt were related to the Rubashkin case.

The United States Attorney‘s Office for the Northern District of Iowa (USAO-NDIA) — who was prosecuting in the Rubashkin trial — was recused from the death threats investigation and therefore should have played no role in the investigation, yet Judge Reade reached out to and engaged in ex parte communications with the prosecutors about the investigation of these alleged threats.

“Indeed, there are only two apparent reasons why the Presiding Judge would reach out to the USAO-NDIA to express concerns about the threat investigation despite that office’s recusal,” the Rubashkin motion states. Either “she wanted to enlist the support of USAO-NDIA 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 one raises serious appearance questions about whether the Presiding Judge was too close with the USAO-NDIA, and therefore whether she should have presided over Mr. Rubashkin’s sentencing even if, as the government alleges, she properly presided over his trial. Mr. Rubashkin is entitled to flesh this issue out before a judge who was not involved in the underlying events.”

Rubashkin’s attorneys argue that, in effect, Judge Reade has been transformed from a judge into a material witness in the case.

Though the Judge and the government have denied any improprieties, Rubashkin argues that “the Presiding Judge’s unsworn statements, like the unsworn statements of any other witness, must be evaluated by a neutral judge and fully developed and evaluated in open court to determine whether the federal government obtained Mr. Rubashkin’s conviction in violation of his constitutional rights.”

Yosef Chaim Salazar, an attorney who practices in Baltimore and New York, and is not affiliated with the case, told Hamodia Tuesday that he read the motion and found it to be very compelling.

“The arguments laid forth in this motion make a very strong case for recusal,” Mr. Salazar said, “especially the fact that the Judge’s husband is a partner in a firm that was representing Rubashkin owned companies during the trial and sentencing, and is still is assisting Rubashkin. I found that revelation to be startling.”

This article appeared in print on page 3 of the February 5th, 2014 edition of Hamodia.