On August 5, 2010, Mr. Rubashkinâ€™s counsel filed a motion for a new trial pursuant to Rule 33(b)(1) of the Federal Rules of Criminal Procedure. The motion was based on newly discovered evidence, obtained through an earlier-filed lawsuit under the Freedom of Information Act (FOIA), showing that the presiding trial judge had been meeting and communicating ex parte with ICE and the United States Attorneyâ€™s Office for at least six months prior to the May 2008 raid.
Internal government memoranda reported that ex parte communications began as early as October 10, 2007, on which date prosecutors gave Judge Reade â€œa briefing regarding the number of criminal prosecutions that they intend[ed] to pursue relative to this investigation.â€ Later that month, the prosecutors discussed with Judge Reade possible dates for the raid, to see what would â€œmeet her scheduling needs.â€ Ultimately, a â€œdate for the operation was set by the availability of the courts.â€
ICE memoranda and emails reported additional pre-raid meetings between Judge Reade and the United States Attorneyâ€™s office. At one meeting attended â€“ at the judgeâ€™s request â€“ by other law-enforcement personnel, the judge stated that she was â€œwilling to support the operation in any way possible, to include staffing and scheduling.â€ During a meeting attended by Judge Reade held on March 17, 2008, the participants discussed â€œan overview of charging strategies, numbers of anticipated arrests and prosecutions, logistics, the movement of detainees, and other issues related to the CVJ investigation and operation.â€ Approximately five weeks before the raid the judge â€œrequested a briefing on how the operation will be conductedâ€ and directed the United States Attorney to provide her with a â€œfinal gameplanâ€ by a certain deadline. One ICE e-mail describes Judge Reade as a â€œstakeholderâ€ in the raid.
Neither Judge Reade nor the prosecutors notified Mr. Rubashkinâ€™s trial counsel of the judgeâ€™s extensive pre-raid meetings with the United States Attorneyâ€™s Office.
Two nationally respected experts in judicial and legal ethics â€“ Mark Harrison and Professor Stephen Gillers â€“ submitted affidavits concluding that the conduct described in the ICE memoranda constituted serious ethical misconduct on the part of the judge and the prosecution team. The defense requested discovery in the event that the new documents were not themselves sufficient to warrant a new trial. The defense also requested that Judge Reade transfer the new-trial motion to a disinterested judge for resolution. The prosecution resisted the motion and the defenseâ€™s ancillary requests.
On October 27, 2010, Judge Reade denied the motion for a new trial, along with the requests to transfer it for decision to another judge and for discovery. The denial rested on the papers; no oral argument or evidentiary hearing was held.
The appeal from that denial was subsequently consolidated by the 8th Circuit Court of Appeals with the initial appeal from the judgment of conviction.