Posted on 09/02/2010 11:59:10 AM PDT by Piranha
ednesday, September 01, 2010 By Debbie Maimon, Yated The nation’s most prestigious authority in legal and judicial ethics has issued a scathing indictment of Judge Linda Reade’s conduct in the Rubashkin case.
In a written legal opinion addressed to the Eighth Circuit Court of Appeals, Professor Mark Harrison, one of the key architects of the Code of Judicial Conduct - the country’s standard judicial ethics guidebook - asserts that Judge Reade repeatedly violated the Code’s provisions.
Harrison’s affidavit accompanies a new motion, filed this week by Sholom Mordechai Rubashkin’s lawyers, for a stay [postponement] of the September 7 deadline for filing an appeal. Related Articles » Perfidy in Iowa: Act II » Weiner Writes Ag On Rubashkin » Motion in Rubashkin Case Links » Perfidy in Iowa
Uteshuva utefillah utzedakah maavirin es roah hagezeirah.
Defense lawyers are requesting that the Eighth Circuit first consider the merits of the Motion for a New Trial that was filed several weeks ago. If a new trial is granted, an appeal would be unnecessary.
Professor Harrison’s affidavit, attached to the motion for a stay, powerfully bolsters defense arguments that Sholom Mordechai’s trial was tainted by Judge Linda Reade’s judicial misconduct and should therefore be vacated.
“Based on my experience and my review of the facts and documents, it is my opinion that Judge Reade violated several provisions of the Code of Conduct applicable to federal judges,” Professor Harrison wrote.
The renowned legal authority studied the defense’s Motion for a New Trial filed in early August and the government’s response to that motion. His scrutiny included the new evidence released under the FOIA [Freedom of Information Act], after defense attorneys sued the government to obtain the information.
Those documents showed that Judge Reade had initiated and authorized private meetings with federal prosecutors and law enforcement agents that crossed permissible bounds. Compounding the impropriety, she concealed this information from the defense team when they were considering the possibility of requesting her recusal.
The U.S. Attorney’s Office hotly contested the defense motion, belittling the disclosures in the FOIA documents as “nothing new.” True, Reade had attended numerous meetings with federal prosecutors, the brief conceded, but her involvement was limited to logistics. She was never told at these meetings who the raid would target or where it would take place, and her neutrality was therefore never compromised.
READE COMMITTED MULTIPLE BREACHES OF JUDICIAL CODE
Professor Harrison ignores these protestations in his affidavit to the Eighth Circuit, stating unequivocally that Reade’s more than ten private meetings with law enforcement officials and prosecutors violated the Judicial Code.
“Meetings or communications about impending litigation between a judge and only one side, to the exclusion of the other parties or their lawyers [known as ex parte], are prohibited,” Harrison wrote.
The rules barring ex parte meetings are designed to safeguard the judicial process, “to prevent its corruption through bias, prejudice, coercion and exploitation,” he stressed.
Those safeguards were violated by the multiple meetings which occurred between October 2007 and May 12, 2008, in which Reade participated.
“The meetings in question all concerned an impending matter - the Postville raid and the arrest of Agriprocessors employees and officials - and therefore clearly involved what the Code of Conduct defines as ex parte,” Harrison wrote.
TESTIMONY FROZEN IN TIME
Harrison’s affidavit cited a letter to Rep. Zoe Lofgren by attorney Rockne Cole in connection with the July 2008 Congressional Hearing into the details surrounding the controversial ICE raid and the subsequent Postville prosecutions.
At the time, the government’s actions drew blistering criticism from eyewitnesses and voices in the legal community who protested the gross violation of the defendants’ civil rights.
Cole described a “secret” meeting of defense counsel assembled by the court to arrange for the representation of defendants arrested in the Agriprocessors raid. The meeting was attended by people from the U.S. attorney’s office who explained the procedures that had been prearranged for the processing of the arrested immigrants.
Harrsion singled out a statement in Cole’s letter that proved beyond a doubt that Judge Reade participated in plea discussions between lawyer and client that should have been off limits to her as the future presiding judge.
“What I found most astonishing,” wrote Cole, “is that apparently Chief Judge Reade had already ratified these deals prior to a single lawyer even talking to his or her client. This directly violates the Rule 11 plea procedure, which provides that ‘the court must not participate in these plea discussions.’
“Indeed,” wrote Cole, “this ratification appeared to have been ex parte with the United States Attorney’s Office. Indeed, it had to have been ex parte, because no lawyers had even met with their clients prior to these plea deals being announced.”
“Rockne Cole put his career on the line by writing that letter,” said David Leopold of the American Immigration Lawyers Association [AILA], who has written extensively about the travesty of justice committed in Postville, in which hundreds of defendants were misled into waiving their rights.
“There were undoubtedly many present at that meeting who were repulsed by what was going on, but Cole had the moral courage to dissent,” Leopold said.
BINDING PLEA DEALS HINT AT READE’S ORCHESTRATION
Other legal observers note that almost without exception, the plea deals the defendants were coerced into signing were “binding,” meaning that they came with a mandatory five months imprisonment, followed by deportation. This fact, too, hints broadly at Reade’s collaboration with federal prosecutors.
The power to hand down sentences lies at the heart of a federal judge’s immense clout. Judge Reade is notorious for using her sentencing discretion to impose uniquely harsh sentences, often going beyond the prosecutors’ recommendations.
In the case of a binding plea deal, however, the judge renounces her sentencing discretion - she cannot raise or lower the sentence - and the defendant waives his right to a trial, or to change or withdraw his plea. Because they etch the defendants’ decisions in stone and allow for no flexibility on the judge’s part, binding plea deals are rare, experts say.
Yet, in the mass proceedings in the Postville prosecutions, hundreds of binding plea deals calling for jail sentences and deportation were pre-scripted and signed by the defendants in a matter of a few days. They were then presented to Judge Reade, who, without discussion or debate, instantly rubberstamped them.
The only way this could have happened with a powerful, controlling judge like Judge Reade is if she herself had orchestrated the plea deals with prosecutors ahead of time. There is no other way she would agree to give up her sentencing discretion in hundreds of cases, insiders said.
GOVERNMENT FAILS TO ADDRESS READE’S FAILURE TO DISCLOSE
Professor Harrison in his affidavit addressed the government’s argument that “difficult and unprecedented logistics” involved in the processing of hundreds of defendants justified Reade’s prior communications with law enforcement officials and prosecutors.
“Logistical requirements do not negate the prohibition of ex parte communications, nor do they excuse the failure to make a complete written record of them, and to disclose them at the earliest possible time,” Harrison countered.
His affidavits echo the question many have voiced after reading the government’s brief: why was there no attempt to address the fact that Judge Reade made no disclosure of her many meetings with prosecutors and ICE agents? Whether those meetings were improper or not, the government’s total silence on her failure to disclose them is revealing.
In addition to the multiple breaches of ethics cited above, Harrison’s affidavit notes a final overarching violation of the Judicial Code: Reade’s “failure to recuse herself from presiding at the trial of principal defendant arrested in the raid that was the subject of her ex parte meetings.”
Sholom Mordechai’s motion for a new trial is generating probing questions in many quarters, forcing people to turn back the pages of recent history for a fresh look at events.
“The Postville events are returning to haunt the U.S. Attorney’s Office and Judge Reade,” observed a member of AILA. “They would prefer to rewrite history - and might have succeeded - except for the testimony of a few who stood up at the time for human dignity and American justice. Their testimony is frozen in time - a voice that can’t be silenced.”
As Glenn Reynolds of Instapundit said, if the allegations against Federal Judge Linda Reade are true, she should not only be impeached as a judge, she should be disbarred as a lawyer.
What exactly is this case about? Perhaps the article was not as clearly written as it might have been...
Rubashkin’s father founded Agriprocessors, the nation’s largest kosher slaughterhouse/meat processing company. Its main plant, located in Postville, Iowa, had revitalized the economy but employed hundreds of illegal aliens.
During the Bush administration word got out that ICE was planning a raid on the facility. Management tried to negotiate with the agency but they ignored the company’s attempts to negotiate and instead executed a massive raid. Following the raid, hundreds of illegals were processed through plea bargains, imprisoned and deported back to their home country, mainly Honduras.
So far nothing wrong (except the refusal to negotiate with management).
It turns out, though, that the chief judge of the district, Linda Reade, was illegally and unethically collaborating with ICE to plan the raid, and to “process” the illegal aliens through a temporary courtroom that she oversaw.
The company’s owners tried to sell to another buyer, but the government required that any purchaser not hire anyone from the Rubashkin family, and without the ability to retain anyone with knowledge of the facility the company fell into bankruptcy and was sold at a lowball price.
Then, without disclosing her collaboration with ICE and the prosecutors, Judge Reade officiated at the trial of Sholom Rubashkin, one of the officers of the company, at his trial.
Originally he was going to be charged with hiring illegal aliens as well as bank fraud, but the judge “agreed” to sever the claims. However, this proved to be a ruse, as she let the prosecutors bring charges for bank fraud under the following theory: Every time the company drew on its revolving line of credit it was required to re-certify that it was in compliance with all applicable laws. However, illegal aliens were employed at the facility. Therefore, it was not in compliance. Therefore, it committed bank fraud. Under this theory, any certifying officer of a company later found to have violated the law could be found guilty of bank fraud and jailed.
Because the hiring of illegal aliens was ancillary to the bank-fraud charge, Rubashkin was not permitted to present witnesses to testify that he was not involved with — and was opposed to — hiring illegals. Later, in a state court case brought against him for knowingly hiring minors (among the illegals) he was found NOT GUILTY ON ALL COUNTS!
Rubashkin apparently did certify false receivables to the company’s bank in order to increase its borrowing base on its revolving line of credit. However, everything else that formed the basis of his prosecution seems to have been trumped up.
Ultimately, after the jury, in the trial conducted by Judge Reade, found him guilty of multiple counts of bank fraud (after his company already was in bankruptcy and sold), the prosecutors sought a life sentence for this 54-year-old man. Six former US attorneys general, ranging from the radical Ramsey Clark to the conservative Ed Meese (and including Janet Reno, Richard Thornburgh, William Barr and Nicholas Katzenbach), as well as more than a dozen ex-US attorneys and a former solicitor general, signed a letter to the judge questioning “the government’s extreme sentencing position”. The prosecutors later reduced their desired sentence to 25 years, and the judge sentenced him to 27 years instead.
As noted in the article above, it turns out that the Judge fraudulently concealed her involvement in this case from before the first arrest was made.
Will be interesting to see how this plays out. I have zero sympathy for what he did, and simply walking thru the plant would have shown him they were illegals. Was it this case or another where evidence surfaced that the meat was not prepared in accordance with kosher requirements, but it was still sold as kosher?
Must have been another. I have followed this one pretty closely and never saw allegations like that. Moreover, the orthodox Jewish community around the country has expressed great sympathy for his situation across the board (other than some of the most “modern” of the modern Orthodox) and they would not do so if he had defrauded them as to the kashrut of their meat.
How would walking through the plant have shown that they were illegals (as opposed to having been born of Latin American descent)?
What a mess. It seems that justice would be best served with a new trial and an investigation of Judge Reade.
Whether meat sold was kosher is not a controversy to be resolved by secular courts, judges or juries. That determination should be reserved to legitimate religious authorities.
What's next: secular courts deciding the meaning of Scripture? Secular courts deciding what constitutes adequate grounds for Catholic annulments of marriage? As governor of New York, Mario Cuomo attempted to legislate the power of state courts to order divorcing Orthodox Jewish men to give a "get" (religious permission to remarry) to their ex-wives. As a lawyer himself, he certainly knew better than to imagine that to be a fit subject for secular courts.
If clergy want to oppose militant homosexuality as sinful, should courts be allowed to punish honest expressions of religious dogma in the public square? Ditto abortion?
The constitution contains no explicit language establishing "a wall of separation between Church and state" but it does guarantee freedom of worship and that no particular religion (which would include atheism, agnosticism and secular humanism) be established as the state (or federal) religion.
Although I’ve seen that “charge”, I don’t think there were any credible accusations that their product wasn’t Kosher. By credible, accusations by members of the Orthodox community, who were quite disturbed at the loss of the plant. As to the immigration issues, while I tend to agree, they did utilize an outside firm for hiring. Though others at the firm were convicted of immigration related offences, there were no such charges against Rubashkin, only the various charges relating to financial fraud.
It’s been a while since I’ve read about this, but as I recall much of what’s being described as es parte communication was actually the participation of the judge in the planning and timing of the raid. She was a ground floor participant. No one will do anything. I don’t think the issue of the products being Kosher was ever an issue, though it is one the courts would love to weigh in on as they do in Europe.
Compare Rubashkin sitting in prison to “Brother Jack” Cecoster, the biggest labor law violator in US history. Decoster is still in charge of chicken operations that have lately threatened the nation’s health.
I personally know some of the kosher slaughterers who worked there, and I do not believe they would compromise on any of the rules of kosher slaughter.
See http://en.wikipedia.org/wiki/Agriprocessors and this article about the kosher cert from Jewish Daily Forward: http://www.forward.com/articles/14273/
Concerning the "how would you know they are illegals" ... considering it was a very white area of Iowa and simply observing people it would be obvious, well, unless the Rubashkins are all blind and deaf from birth, they would have known.
And actually they knew back in 2005, when at another facility:
"In September 2005, workers at Agriprocessors’ distribution site in Brooklyn voted to join the United Food and Commercial Workers union. The company did not recognize the vote, arguing that it was invalid because management had discovered that many of the workers who participated were in the US illegally, making their votes invalid despite protection granted undocumented workers in the National Labor Relations Act."
so somehow they knew about the illegals in Brooklyn 3 years before, but were stumped and innocently unknowing about illegals working for them in 2008 ?
Concerning secular enforcement of kosher laws, the issue is not observing kosher but advertising it and taking money for it.
Were it to be shown at some point that they sold non-kosher meat as kosher, and the label mentions being kosher, that is false advertising.
The Feds have cracked down in similar cases, notably on sellers of vitamins and food supplements... see http://www.ftc.gov/bcp/edu/pubs/business/adv/bus35.shtm for a short FAQ ... excerpt:
Under the Federal Trade Commission Act:
* Advertising must be truthful and non-deceptive;
* Advertisers must have evidence to back up their claims; and
* Advertisements cannot be unfair.
As to the illegals, as I noted I tend to agree that suspicions could have been raised. And several people were successfully prosecuted. Rubashkin's contension was that he relied on outside contractors for labor. Many firms do. Do I suspect that's a ruse, I do, but the fact remains there were no immigration related charges. As to it being a "white" area of Iowa, that's silly. They'd been using Hispanic labor for years, that fact has been written about, as has the "issue" of Hasidic Jews living in Iowa, and the stress' that brings about. No one would have been surprised to see Hispanics working there. Post bankruptcy, they've been replaced by Somalis.
Please see my post immediately below yours ... I am not casting any charges against any particular person aside from the Rubashkins, just pointing out some additional info .
Unfortunately our immigration system is still broken and shows little chance of being fixed anytime soon.
The reality is that I know a large commercial mushroom concern, which employes illegals, everyone knows it, the point that the guy who owns the firm made was that they show up, they work, and then they pay them at the end of the week, and that's it. I don't personally agree with that viewpoint, but on the other hand I understand the price pressure that dealing with large grocery chains can bring.
The Jewish Daily Forward article doesn’t say that there were issues with kashrut; it says that after the raid the Orthodox Union required the company to put new management in place in order to ensure that there was a responsible person to whom the supervising rabbis could address kosher questions. I don’t think that there were issues of systemic failure of kashrut supervision at the company. Nothing of the sort was alleged in the Wikipedia article, either.
Again, I wouldn’t assume that a person who is not white is obviously an illegal alien, although I would be comfortable in assuming that they were not of the Lutheran/Methodist stock that had populated that area in the past.
I didn’t bring up the Brooklyn issue in my earlier post in the interest of not boring everyone to death, but there were issues of illegal aliens working there, and the company got in trouble for trying to scrutinize the employees there in order to determine who was in the US illegally.
I may have missed something in previous posts, but I never wrote anything about secular enforcement of kosher laws.
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