Defense claims proof of misconduct in case against kosher executive
IOWA CITY, Iowa — Attorneys for imprisoned kosher meatpacking executive Sholom Rubashkin say they have found “overwhelming evidence” of prosecutorial misconduct that proves his 27-year prison sentence for money laundering is too harsh.
Rubashkin’s attorneys filed newly obtained notes from a key meeting of government officials and legal affidavits Monday alleging prosecutors improperly interfered with the sale of Agriprocessors in Postville, Iowa, which was the nation’s biggest kosher meat plant.
Representatives of the U.S. Attorney’s Office in Cedar Rapids threatened potential buyers that they would use forfeiture proceedings to seize the company’s assets if Rubashkin’s father, Aaron, or other relatives had a role operating the plant, several bidders said in affidavits.
Those threats depressed the sale price by millions because Aaron Rubashkin and other relatives were considered key figures in the kosher meat industry whose expertise was needed to operate the company, bidders said.
Agriprocessors sold for $8.5 million in 2009, even though its assets had been valued at $68 million. An investor had proposed a $40 million purchase but the bankruptcy trustee declined the offer, concluding that it could get more at auction. Potential buyers said they were scared off by the prosecutors’ warnings about the Rubashkins, which the trustee had predicted would hurt the sale price.
The drop in value is significant because it left Agriprocessors’ bank — the victim of Sholom Rubashkin’s money laudering scheme — with a $27 million loss. That figure was used to calculate Rubashkin’s sentence under federal guidelines. Had the plant sold for $40 million, Rubashkin would have faced a roughly three-year term under the guidelines, the filing claims.
Rubashkin, 56, has served nearly seven years behind bars after he was convicted in 2009 of financial fraud for bilking the plant’s bank by submitting fake invoices that made the company’s finances appear healthier than they were so that it could borrow more. His prosecution came after federal authorities raided the plant and arrested 389 illegal immigrants in 2008. Agriprocessors then filed for bankruptcy.
Prosecutors presented testimony at Rubashkin’s sentencing that they had not imposed restrictions on the family’s involvement in any business that purchased Agriprocessors.
Paula Roby, a lawyer for the bankruptcy trustee, testified that claims by bidders of a no-Rubashkins policy were false rumors, adding: “The grapevine can be a very unreliable thing.” U.S. District Judge Linda Reade accepted Roby’s testimony for purposes of calculating the loss, saying it discredited claims by defense witnesses that prosecutors’ interference hurt the sale price.
But the new notes from a 2008 meeting between prosecutors and bankruptcy trustee representatives appear to bolster the defense’s claim and undercut Roby, who was at the meeting.
“No Rubashkins is very important to us — non-negotiable,” Assistant U.S. Attorney Richard Murphy said, according to handwritten notes taken by one of the trustee’s lawyers, James Reiland. Asked by Roby whether there were any other non-negotiables, Murphy reiterated: “No involvement of Rubashkins from any standpoint (control, benefit),” the notes show.
The new evidence “proves the government knowingly presented false and misleading testimony and withheld exculpatory evidence,” Rubashkin’s attorneys wrote.
Court: Iowa had no duty to monitor predator at nursing home
POMEROY, Iowa — Iowa authorities had no duty to protect residents of a nursing home from a sexual predator who assaulted a 95-year-old resident after being committed there by court order, an appeals court ruled Wednesday.
State officials had no legal obligation to supervise William Cubbage after they petitioned a judge to have him released from a state treatment program for the most dangerous sex offenders, the Iowa Court of Appeals said. They also were not required to develop a safety plan for Cubbage once a judge agreed to have him sent to the Pomeroy Care Center, a nursing home in western Iowa, the three-judge panel ruled.
The ruling upholds a lower court’s dismissal of personal injury claims against the state brought by the estate of the victim, who has since died. Additional claims still pending accuse the nursing home of failing to prevent the August 2011 assault.
Cubbage, now 87, was ordered held for treatment at the state-run Civil Commitment Unit for Sexual Offenders after completing a prison sentence in 2002. He had been convicted of numerous sexual crimes against minors between 1987 and 2000, and was diagnosed with pedophilia. After developing dementia, state officials agreed further treatment was unlikely to succeed but that he still needed full-time custody and care.
A judge in November 2010 ordered Cubbage placed at the Pomeroy Care Center, ruling that he remained a danger to himself and others due to dementia and executive dysfunction. Less than a year later, the child of a staff member saw Cubbage sexually assaulting the 95-year-old woman in her room. The victim filed a lawsuit in 2012 before she died.
Prosecutors did not pursue criminal charges against Cubbage, opting instead to have him held in a prison hospital pending a civil trial on whether he should be recommitted to the sex offender program. Ultimately, the civil case was dropped in 2014 and Cubbage was moved into a state mental health institute.
The lawyer for the victim’s estate, Willis Hamilton, said Wednesday he disagreed with the appeals court decision and would consider asking the Iowa Supreme Court for further review. He said the state no longer wanted to pay for Cubbage’s expensive sexual offender treatment, so “they dumped him in a nursing home where Medicaid could pay for him.”
“They said he was a danger to others and yet they put him in a nursing home with little old ladies in their 70s and 80s with no protections,” he said. “To say I’m disappointed in the result is an understatement.”
Court: ISU doesn’t have to pay some legal fees to whistleblower
DES MOINES, Iowa — An appeals court says Iowa State University can get out of paying some legal fees to a whistleblower who was viciously mistreated by his superiors.
The Court of Appeals ruled 2-1 on Wednesday that a judge erred in awarding $368,000 in legal fees to Dennis Smith, sending the case back for a lower award.
Smith was awarded $500,000 for emotional distress and $150,000 for reputational harm he suffered after reporting financial misconduct by his boss.
The majority says Smith can recover attorneys’ fees only for the whistleblower claim, and the judge should have cut the fee award since that claim was only partially successful.
Dissenting Judge Richard Doyle says the award was justified. He says the decision “would effectively slam the courthouse door shut to many employees with whistleblower claims.”
Bradley won’t say if she’d pass on abortion cases
MADISON, Wis. — Wisconsin Supreme Court Justice Rebecca Bradley isn’t saying whether she would recuse herself from an abortion case in light of comments she made as a college student equating abortion to the Holocaust.
Bradley was asked during a Madison debate Wednesday with opponent JoAnne Kloppenburg whether she would recuse herself from an abortion case because of her comments. She responded by saying she makes recusal decisions on a case-by-case basis. She said if she had any question in her mind about her ability to be impartial she would recuse herself.
But she also said justices are expected to set aside their personal opinions and apply the law as written.
Bradley faces Kloppenburg in the April 5 election for a 10-year term on the high court.