Monday, August 9, 2010

Rubashkin's Appeal

As one who often writes about courts and prosecutorial misconduct, I must admit to having no confidence anymore in American judges having any integrity at all. One of the defining moments for me came in the Tonya Craft case in North Georgia when the judge, Brian House, literally took cues from the prosecutors during the trial, as they gave him hand signals and other indications of what he needed to do in certain situations.

It should surprise no one that House desperately tried to rig a conviction, and when he received the “not guilty” verdict from jurors and read it before the verdict was read to the people in the courtroom, his face turned ashen and his expression was one of utter shock. However dishonest and sordid his actions, at least House was unable to get the jurors to vote his way; Shalom Rubashkin was not so fortunate, as his judge not only was hostile to him throughout the trial, but now we find that the judge played an important role in the prosecution of the case.

In my first article on Rubashkin’s conviction, I dealt with the charges and the sentence that Judge Linda Reade imposed on him – 27 years, which is longer than many murderers receive – and was entirely out-of-kilter with what the law is supposed to do. Readers know that I have trouble with how federal criminal law is imposed and how prosecutors can take about any action, including a legal action, and roll it into the “fraud” statutes that enable prosecutors to make their careers.

However, new documents released now demonstrate that Reade was far more involved in this case than I could have imagine, and that there is no way humanly possible for her to have done what supposedly is her job: be an impartial jurist:
A federal judge conspired with the Bush Department of Justice to plan the largest immigration raid ever in the United States, and then presided over the trial of the plant’s manager, eventually sentencing him beyond even prosecutors’ recommendation.

New documents show Linda Reade, the chief judge of the U.S. District Court for the Northern District of Iowa, was involved in the planning of the Immigrations and Customs Enforcement raid on the Agriprocessors kosher meatpacking plant at least six months before it occurred in May 2008. She asked for briefings from law enforcement and went as far as to ensure the raid was conducted around her vacation schedule.

But the judge never said a word of this to the defense lawyers for Sholom Rubashkin, the Agriprocessors manager, when she presided over his trial on bank fraud. She didn’t recuse herself from the case, either.
Indeed, all through the proceedings leading up to the trial, and then during the trial itself, it was clear that Reade has utterly hostile to the defendant. Furthermore, the very notion that she played what effectively was a “law enforcement” and prosecutorial role even before Rubashkin’s kosher meat processing plant was raided automatically should have disqualified her. Furthermore, by stepping outside of her role as a judge, she opens herself to lawsuits, as she has absolute immunity only in her role as a judge, not as a law enforcement officer.

The media and the courts have framed this as a “financial fraud” case, as though Rubashkin was the Second Coming of Bernie Madoff. However, the “financial fraud” that Rubashkin committed was not “fraud” at all in the historical sense. This is what I described in my previous article:
In the case of Agriprocessors, the loan was a revolving $35 million payout that enabled the company to keep a steady cash flow, meet payroll, and pay its bills. The firm was not arrears in payment, and all indications were that the company would be able to meet its obligations to the bank.

Because the federal courts have eviscerated the ancient doctrine of mens rea, which means that prosecutors needed to prove that a person charged intended to commit a crime, intent to defraud no longer matters. In fact, one can argue that Agriprocessors did not "defraud" First Bank at all, and there are indications that the bank knew that Agriprocessors was overstating its revenues and underestimating its costs (something the federal government does every year, but never results in anyone’s arrest), but did not care because its good customer paid its bills on time. The company was profitable, and so was the bank.

That was not all, according to the feds. Apparently, certain suppliers of cattle and other things are required by a little-known (and almost never enforced) law from the 1920s to be paid within 24 hours. No one had complained about the late payments, to my knowledge; instead, it was yet another of those "legal technicalities" that federal prosecutors use when they want to convict someone on something.
Now, the bank would not have called the loan and lost all those millions had the federal government not shut down Agriprocessors. However, the government is claiming that the business itself was a $35 million fraud, as though Rubashkin were running a Ponzi scheme. (Oh, sorry, only the government is permitted to run a Ponzi program that we know as Social Security.)

Thus, the real cause of the losses was not the business practices of Rubashkin per se, but rather the way that the federal government dealt with the situation. The Bush administration wanted to make a statement to its conservative base regarding illegal immigrants being employed in the United States and it chose to make an example of Rubashkin and Agriprocessors.

Keep in mind that the feds can do the same to any business, even those businesses that absolutely operate above board in every way. Federal agents can act on false allegations (which they do all the time), raid the place, shut it down, and then claim that the entire operation was fraudulent after the company cannot pay its bills, and don’t think they don’t do this.

Federal agents have absolutely no personal stake in the success of a business or even private enterprise in general. They are in privileged positions and can extract whatever they want from people who are not so well-placed, and they do it on a regular basis. That means that if they drive legitimate businesses into bankruptcy, that is no problem to them, and if other lives are ruined and the economy sinks a little bit lower, who cares? The prosecutors and judges get their paychecks.

If anything, the revelations that Reade was involved up to her eyeballs in the Rubashkin case from the very beginning sets a new low in federal criminal law – if it is impossible for these people to sink any lower. It absolutely is clear that from the start, Reade was trying to engineer an arrest and conviction, and if she had an ounce of integrity (honest federal official, of course, is an oxymoron), she would resign immediately.

However, I am sure that Reade will go on as though nothing happened. One hopes that the appellate courts will note the misconduct, but I will not be holding my breath.

28 comments:

Anonymous said...

Inteligent and compelling post. This is really damning for the legal system.

Jerri Lynn Ward said...

This is so outrageous that it makes me breathless with rage. That federal judge should be impeached, but that's too much to expect in our corrupted system.

Trish said...

Wow, just makes you wonder if there are any honest people in our judicial systems in this country!!

kbp said...

I grown to accept that all federal cases are solid, it is just a question of strategy in selecting which laws to prosecute any defendant of violating.

Anonymous said...

Got a client sitting jail right now for bank because he relied on a banker. Turns out the banker was a thief and had been taking money from the bank for over a decade. Not even the people that worked in the bank or the community suspected it. The feds just claimed, without any evidence to support it, that my client must have been in collusion with the banker One of the problems as it appears was a problem for Mr. R, is that bank fraud is so broad it can criminalize behavior that traditionally has been ordinary course of business. In this case, one would think that, as between a cattle seller and a cattle buyer, they could agree between themselves to waive the 24 hour payment requirement. Not so. There does not have to be any harm to the bank either. The feds just call that a successful bank fraud, being able to return the money. In all, the breadth of the bank fraud statutes ensares too many, criminalizes risk taking, and hands too much power to the feds.

Anonymous said...

Think that's bad get involved in the family court system in GA.

volfan69 said...

KC Sprayberry, wherever you are, thank you and I admire you and your talent. The link you gave me was great. Again, thanks.

Mr. Anderson, it appears to me that if any change is to happen in all of these problems it will have to start within the system. I refuse to give up hope. I honestly think that at some point some people within the system will stand tall and say "I've had enough!" They will begin to right the wrongs and hold their heads high and do what is right. I just want to know how I can be of more help. I never give up on the right thing to do. Bobb

FGBA said...

You won't find the "new documents" on Andrew Breitbart's (of Shirley Sherrod fame) Big Government website, but you will find them on failedmessiah.com. That way you can determine for yourself how involved Judge Reade was. Do your own research, rather than rely on the conclusions presented by people on the payroll of Rubashkin supporters.

William L. Anderson said...

Gee, I had no idea that I was on Sholom Rubashkin's payroll or the payroll of his supporters. Checked the main today and...no check. Guess they haven't paid me.

I went to the Failed Messiah site and it looks like something akin to Tikkun (whose editor, Michael Lerner -- Hillary Clinton's guru -- had "Smash Monogamy" on his wedding cake), or the Jewish Forward.

Even if what you have on your website is true, it does not go to the issue of fraud in this case, and it certainly does not go to the very far-reaching aspects of federal criminal law. I suspect you like that kind of law because it allows you to point the finger at a lot of people that you don't like.

Just to make it clear, I am on no one's payroll, period, except for Frostburg State University. (I do some work for an on-line university, but quite minor and with permission from my supervisors.)

William L. Anderson said...

I generally let comments stand, but in your case, if you post a second part and refuse to identify yourself, I will delete all of your comments.

First, if you are a prosecutor, then you need to learn how to spell. (You need to learn how to spell and how to construct sentences, anyway.) Second, you obviously are close to the case, so I am going to hold you responsible for identifying yourself.

It was very clear throughout this entire case that Reade was extremely hostile to Rubashkin, and one does not have to be aligned with the Rubashkin family to see that. A judge is supposed to keep a certain distance from a case, and it also is clear that Reade refused to do that.

She should have recused herself, period. The ABA codes of ethics for judges make it clear that judges should be impartial and not hostile to defendants, period. Reade did not pass that test.

kbp said...

Let him post freely Bill.

PLEASE!

justiceseeker51 said...

This is off-topic for this post but on for the Tim Deal. It's about a cop perjuring (lying) in court. It sounds like they have Absolute Immunity but it was against a convicted person. Whether that makes any difference or not, I don't know.

http://supreme.justia.com/us/460/325

justiceseeker51 said...

I meant to add: in Section IV at Footnote 28 it goes on to say they can be charged. Alas, Good reading

KC Sprayberry said...

You're welcome, Bobb. Chalk it up to learning how to research for my writing.

Bill, I've read both sides of this case and have always wondered why the judge never recused herself. It's obvious to anyone with a modicum of intelligence she was working for the interests of the government and not to oversee the case without prejudice, as judges in this country are supposed to work. However, what is theory and what is actually practiced never seems to meet, even in the middle. Change can come, but it will be slow. The first place for change to happen must be in the law schools - they are ultimately responsible, through their teachings, for the lawyers and judges we have currently subverting the system.

William L. Anderson said...

KC,

Again, it deals with accountability. I am going to do some hard research this year on the issue of "capture theory" in which people who are being regulated "capture" the regulatory apparatus.

It usually applies to private firms being regulated by government, but I think that economists have missed the larger issue of what happens when governmental agencies themselves "capture" the apparatus that oversees their own actions. When the woman at the Georgia State Bar told me dismissively that Arnt and Gregor simply were "doing their jobs," I realized that what she was telling me was that prosecutors should be free to break the law if they so choose because their "job" is to gain a conviction at all costs.

Anyway, I have my academic research project for the year, do I not?

MG said...

To Mr. Anderson,

Thank you for your informative and well-written article. I is a breath of fresh air to see that there are people who check the facts before they judge.

With regards to the comments by FGBA, the administrator of the Failed Messiah site is a self-hating Jew who will do anything to report slander against the religious Jewish community. He is extremely biased against Rubashkin, and I would not rely on his website for the facts in the case.

Thank you again for your support for Sholom Mordechai Rubashkin and reporting the truth about this judge who should be put in jail for life.

MG

KC Sprayberry said...

Oh, yes, Bill, you really have at least a year's worth of research. But don't confine it to just the judicial system. Take a long hard look at how Americans who've worked long and hard all their lives to achieve what was known as the American Dream, going so far as to give up luxuries to keep they earned, and how these governmental 'bailout' plans have made their lives pure misery. Bailouts only help the rich or those stuck on stupid that keep taking from the give away programs. Unfortunately, we are at fourth and fifth maybe even sixth generation for these money suckers. What we're seeing in the judicial system is just an extension of what slowly started in the late fifties and early sixties with 'social' programs. It has reached its head now and may come down to people just refusing to support an overbloated, overspending government to survive.

Doc Ellis said...

Greetings Dr Anderson,

I have excerpted and linked this and its predecessor (June 2010) articles to my
BikerorNot blog line at http://www.bikerornot.com/docellis124
and I tweeted this to
Facebook at http://www.facebook.com/docellis124 , to
MySpace at http://www.myspace.com/docellis124, and to
LinkedIn at http://www.linkedin.com/in/docellis124
Thank you for writing these

Doc Ellis 124

Anonymous said...

Powerful information. I do believe this will eventually catch up to Judge Reade, and she will go down in shame.

Alison said...

Mr. Anderson,
My name is Alison. Thank you so much for this very informative article. I'm so pleased to see that someone intelligent and knowledgeable is taking a stand on this case - and I hope that you are able to make some headway into pursuing this to the point where the powers-that-be can reverse the insane decision on this case.

What I find bothersome, however is that in these articles, you only refer to Mr. Rubashkin, and a reader might think that Mr. Rubashkin was the only victim.

The fact is that the judge also USED some of Mr. Rubashkin's employees to make the ridiculous case against Mr. Rubashkin. Two extremely upstanding men, Mr. Bensasson and Mr. Meltzer are currently spending over 3 years in prison (each) because the judge and prosecution team wanted to use them as BAIT to get to Mr. Rubashkin. That didn't work, but nevertheless, the judge still convicted and sentenced them both. In fact, the prosecutor was not even asking for the length of sentence that the judge arbitrarily decided to give them anyway.

The stories of those two men add to this discussion of how shamefully the judge acted. Here are two men who had no malicious intent and are good quality people whom I've known for years - and they are wasting years in prison for nobody's benefit and for no good reason.

It would be good to have their stories acknowledged while you are discussing the heinously inappropriate sentence that was imposed on Mr. Rubashkin.

Thank you, again, for a very good article.

Samuel Gompers said...

Having read your article and much of the information available in the public domain, my attitude is simply one of shock and revulsion. That Linda Reade can so summarily stack the deck against a defendant in so many obvious ways, is enough to make any moral citizen recoil. That it now emerges that those same prosecutors whom Reade blatantly favored during the trial were the same ones she 'worked closely' with in the months leading up to the trial is outrageous.
Prof. Anderson, my question to you is; Does a regular citizen have any recourse after witnessing this outrage, or is it time to move to Moscow ? At least the Russians know what to expect.

FGBA said...

On August 23rd, the prosecutors filed a 40 page memorandum with the court as its response to the motion for a new trial for Mr. Rubashkin. The document and other exhibits are available on the web. The Des Moines Register did a story on it, which was picked up by the Associated Press.

No surprises here; the government argued the motion should be denied.

FGBA said...

On August 23rd, the prosecutors filed a 40 page memorandum with the court as its response to the motion for a new trial for Mr. Rubashkin. The document and other exhibits are available on the web. The Des Moines Register did a story on it, which was picked up by the Associated Press.

No surprises here; the government argued the motion should be denied.

Dr. Paul Maas Risenhoover said...

http://www.scribd.com/doc/41546346/ReadeLawClerkPeterMoyersProvesCoercionAndBiasActualPrejudice

Dr. Paul Maas Risenhoover, drpaulmaas@gmail.com said...

http://www.scribd.com/doc/41316093/Victims18USC3771eMotionMandamus102487NDIowaUSvRabbiRubashkinShlita

Anonymous said...

i appreciate your insight, i have been following this case as best i can. please can you update us with the latest on the appeal, and on on the impact or influence of the congress people that have requested U.S. Attorney General
Mr. Holder to look into this. to the best of my knowledge he hasnt responded to anybody yet.
what recourse does rubashkin have in terms of recouping damages inflicted on him by the goverment.
what can happen to the prosecution/unions/politicians who were in collusion on this matter.
intentionaly trying to bury him alive.
is there legislation to punish those who knowingly created the facade that he is a crimminal when in fact he is not a crimminal.
i look forward to hearing from you.

Anonymous said...

It is so nice to read this article and know that someone out there truly understands what is happening in our justice system. INTERESTING UPDATE: Judge reade just happens to be filling in for a judge in the 8th circuit court of appeals this week! She hasn't sat in as an appeals judge since 2006, but hmmm....for some reason the week of rubashkins appeal she is one of the damn judges. How does this happen??? Rubashkin though is not the only one who Judge Reade and the federal prosecutors in iowa have a vendetta against. Look into the Alexander's who were charged with fraud because they signed closing documents on their home that contained false information put there by the realtors and bankers. The house was filled with termites and mold from false inspections and when they moved their 3 children out of the house and into an apt, they gave the house back to the bank and filed complaints with HUD & FHA.....and ended up with a federal indictment. This case has serious prosecutor misconduct and judge reade had investments in the bank and denied a recusal!!! The Alexander's realtor admited in testimony to the government that he forged documents to get the loan approved! Now they are about to leave their small children to go to federal prison accross the country. I believe there is some documentary being made on this. I really hope judge reade will be impeached.

Walter A. said...

Justice by personal fiat, and Linda Reade laughs all the way to the bank. Is there any typical timeline in the 8th circuit for how long these decisions take to come down?

I have some confidence that Judge Riley sees what actually happened here, and is looking for a way to partially correct this travesty without blowing legal secretary Reade out of the water...