Government Fumbles in Rubashkin State Trial

“Here’s the pattern,” he noted. “They were brought to the United States to help the government’s case, so they need to show that they were minors when they worked at Agri, whether they were or not. To be really helpful, they need to show that they were injured on the job. Often, that testimony flatly contradicts something they told federal investigators in the days following the raid. No problem. They simply deny it or say they “don’t remember.”

 

In addition to falsified testimony, the government’s case suffers from lack of any evidence that Sholom Mordechai had any direct contact with any of the witnesses. All of them acknowledged that they saw him not more than once or twice and would not have recognized him in the street. Yet, he is being charged with knowing that these particular individuals worked at the plant and were exposed to dangerous chemicals and machinery.

 

In the following scenes excerpted from trial testimony, the disparity between fact and fiction is so glaring that it is almost comic. Two witnesses can’t get their age straight and another admits to having received a birth certificate from his mother in Guatemala which was “bought on the street.”

 

First Witness:

 

Defense Attorney Montgomery Brown: When you were arrested by immigration, you were how old?

Roman Candido: About 18.

Brown: You were 18 at the time of the raid?

Candido: No, I was 17.

Brown: Why did you say 18?

Candido: (silence)

Brown: Are you sure you know how old you were on May 2008?

Candido: Yes.

Brown: So you got false documents to work, and nobody at Agri, except your supervisor, suspected you were younger?

Candido: Yes.

Brown: You told immigration [at the time of the raid] you were 21?

Candido: Yes.

Brown: What is your immigration status?

Candido: I have a visa to work in the United States, a U-visa.

 

Second Witness:

 

Brown: What documents did you present at Agriprocessors to prove your age?

Gerardo Perez: They asked for a birth certificate, so I got one and showed it to them.

Brown: Was it your real birth certificate?

Perez: No. I got it from Guatemala. My parents had to help me.

Brown: Did they purchase it on the street?

Perez: Yes.

 

Third Witness:

 

Brown: Did you testify that you were 17 when you began work at Agriprocessors in March 2008?

Luis Nava: Yeah.

Brown: Let me show you this April 2008 document. It says here that you told inspectors you are 19 with your date of birth in 1987.

Nava: That don’t make sense. How could that be?

Brown: That’s what I’m wondering.

Nava: I probably was confused about… about how old I was supposed to be. They probably thought I was dumb.

 

ANTI-DISCRIMINATION LAWS THWARTED THE DISCOVERY OF MINORS

 

The government’s claim is that Agriprocessors had a system in place that enabled underage employees to be hired without being scrutinized by top management during the application process. However, defense counsel highlighted the catch-22 employers faced in complying with civil rights laws that often conflicted with the laws governing the hiring of minors.

 

Civil rights laws prohibit discriminating against or firing anyone on the basis of appearance. Rejecting an applicant based purely on his or her facial features is grounds for a civil lawsuit. Employers are also prohibited by law from requesting excessive corroboration of age and legal status. Demanding to see a driver’s license, for example, is not permitted.

 

Despite the conflict between different sets of laws, attorney Montgomery Brown showed the jury that regulations were in place at Agriprocessors that required young-looking applicants to corroborate their birth date with additional records.

 

In addition, supervisors were required to post the names of all workers who looked “underage” and to certify that, to the best of their knowledge, there were no minors under their supervision.

 

These methods admittedly failed to screen all minors, since those under 18, determined to keep their jobs, often produced bogus birth certificates that could fool employers. In many instances, these documents were procured by a parent working at Agriprocessors. In fact, according to witness testimony, over 90 percent of the youngest-looking workers worked alongside a parent or sibling who would readily corroborate the (false) age of the worker in question.

 

KEY GOVERNMENT WITNESS DISCREDITED

 

Prosecutors brought three former supervisors at Agri who testified to the presence of minors. Of the three, two carried grudges against the company management. Mark Spangler was fired from his post in 2007 for being unproductive and unreliable. Cross-examination revealed his history of larceny convictions and that he was brought to the courtroom from jail where he is serving time for contempt of court.

 

Another supervisor, Matt Derrick, insisted that over half of the 40-50 workers under his supervision were children, a claim that stood in stark contrast to other government testimony that identified not more than two or three on a floor, at most.

 

Under defense cross-examination, the jury learned that Derrick left Agriprocessors under a cloud of suspicion in 2008 after complaints were brought by workers of physical harassment and emotionally abusive treatment. One government witness identified him from a photograph as the person who had harassed her and whom she had complained about.

 

Derrick was so hated that hearing him promote himself in the witness stand as a benevolent overseer who took a kindly interest in his workers prompted several observers to come forward with stories that exposed him as unscrupulous and cruel.

 

“One person recalled how Derrick had taken sport in humiliating new workers who had not yet learned the ropes,” related Meir Simcha Rubashkin. “He would dock them and penalize them unfairly. He would talk about packing up all the Mexicans at the plant like a bunch of sardines and sending them over the border.”

 

The government also called supervisor Brian Giffith, who testified that prior to an imminent visit from a child-labor inspector at Agri a few years ago, he had received orders from his superior, Jeff Heasely, to have all minors hide for the duration of the visit.

 

Under cross-examination, however, Griffith acknowledged that he had signed a document a month before the 2008 raid, stating that, to his knowledge, there were no workers under 18 under his supervision. He acknowledged hiding one employee in the basement at the time of the inspection only because “he looked younger than he was.”

 

“SAFETY WAS A PRIORITY”

 

Under expert cross-examination, defense attorney Montgomery Brown drew from Griffith a picture of a well-run, disciplined meat-packing plant, where employee safety was a priority. Whoever worked with knives and dangerous machinery wore protective gear, including hard hats, steel-toed boots, metal gloves and metal aprons, Griffith said. Many of the witnesses corroborated this and said that they had been trained to operate the machinery.

 

Although the government had not rested its case last week, the defense was allowed to call a witness who would not be available when the defense begins its presentation. Toby Bensasson, a key government witness who testified against Sholom Mordechai in the bank fraud trial, came to his defense in the child-labor case.

 

“Sholom was against having underage workers at the Postville facility,” testified Bensasson, a former controller at Agriprocessors. He said minors weren’t covered by the company’s insurance policy. If a youth got hurt, the insurance company wouldn’t pay the claim, and the insurance company would likely cancel Agriprocessors’ policy.

 

The witness also recounted an occasion where a human resources employee had discovered an underage worker. Bensasson ordered the teenager out of the plant. When he later told Sholom Mordechai about the incident, the latter replied “Very good. We can’t have minors.”

 

Bensasson said the company once hired a 17-year-old girl to do clerical work in the sales area. He said a security guard escorted her in and out of the plant until she turned 18.

 

DESPERATE FOR U-VISAS

 

In the current trial, in which the government is charging Sholom Mordechai with knowingly hiring underage workers, the only way to prove his guilt is to have the so-called underage witnesses themselves testify that the defendant knew they were minors. The problem for the government was that most of the illegal workers had been deported in the months following the raid. How, then, was the government to win its case?

 

The answer lay in the coveted U-visas, which are awarded only to victims of abuse who can aid authorities in the investigation or prosecution of a crime. The visas allow recipients to work legally in the United States for four years and apply for permanent-resident status.

 

One can imagine the glittering appeal of such an opportunity to an impoverished citizen of a third-world country.

 

The Des Moines Register interviewed some of these witnesses, who grabbed at the offer from the American agents. The opportunity seemed too good to be true. To begin with, the promise of being flown free of charge to America and having their food and lodging paid for was tremendously enticing.

 

These people knew from firsthand experience that getting into the Unites States was virtually impossible, unless they paid a guide between five to ten thousand dollars to smuggle them across the border and to help them buy false documents. It took years to pay off this debt.

 

“Several of the young men said in interviews last week in Postville that they hope to stay in the United States long enough to pay off their debts and thereby save their family’s land from “coyotes” – guides who help immigrants cross illegally into the United States for an exorbitant price,” the article said.

 

“Alfredo Argueta, one of the people recruited by the American agents, and his former co-workers said their spirits lifted when they were offered the opportunity to return to America. Their families smiled and hugged.”

 

INJURIES NEEDED FOR U-VISAS

 

With everything to gain, who among them, regardless of their true age, would not readily claim they were minors when hired by Agriprocessors? Testifying that one was hired as a minor, however, is not sufficient to qualify for a U-visa. The immigrant would have to show that he or she was a victim of abuse at the workplace.

 

The problem was that few, if any, had reported injuries or abuse at Agriprocessors when interrogated at the time of the raid. For the gift of a U-visa, however, who would not grab at the opportunity to assist the government by inventing a story?

 

And so, the public has been treated to an extravaganza of witness perjury and false testimony about so-called injuries, to all appearances sanctioned by the government.

 

Take just one example, for which the “victim” will almost surely be richly rewarded. Hernandez Gonzales, a Mexican native, testified last week that she had been injured when the sleeve of her frock became caught in a conveyor belt, dragging her down the line.

 

The defense questioned Hernandez about prior statements she had given to investigators in several earlier interviews in which she said that she had never been injured on the job.

 

Brown: Did you give this testimony to federal officials in May 2008?

Gonzales: I don’t remember saying that.

Brown: But you admit that this is your signature?

Gonzales: Yes.

Brown: And you don’t remember telling investigators you were never injured?

Gonzales: I’ve always told people the same thing I’m saying now.

Brown: You’ve told the jury it was obvious there were minors at Agriprocessors. Is that correct?

Gonzales: Yeah, it was obvious.

Brown: But in an interview with investigators in May 2008, you say it was not apparent there were minors at the plant.

Gonzales: I don’t remember saying that.

Brown: Is this your signature?

Gonzales: Yes. But I don’t remember that.

 

And so it has gone, witness after witness. The presiding judge, Nathan Callahan, last week finally identified the “white elephant in the room”: the lack of credibility in witness testimony that is making a mockery of the government’s case.

 

In a discussion with defense counsel and prosecutors, quoted in the Des Moines Register, Callahan said, “When you’ve got somebody who gets on the stand and says, ‘I don’t remember ever talking to anybody [in previous interviews],’ it’s a credibility problem if you can show they have in fact given a bunch of interviews.”

 

But none of this seems to matter to the government. Indeed, as reported by the Des Moines Register, Sonia Parras Konrad, a Des Moines immigration lawyer who has won dozens of the visas for other former Agriprocessors workers, “said she has started the visa application process for the group of witnesses who are assisting the government.”

 

IN THE HOSPITAL OVER SHAVUOS

 

The state rested its case Tuesday, and jurors have been dismissed until next week, when the defense will begin its presentation.

 

That leaves lots of time for people to ponder the larger question about what might be driving the state to pursue a case so lacking in foundation and so riddled with falsehood.

 

“There’s an outrageous farce playing out here,” said Sholom Rubashkin, a nephew of Sholom Mordechai, who worked at Agriprocessors and is now employed under the new management at AgriStar. “No one can watch this without cringing at the dishonesty.”

 

“You have to wonder how all this can fail to erode respect for the criminal justice system in this state,” Sholom Mordechai’s wife, Leah, said in a phone interview with the Yated.

 

Leah is still deeply upset by last week’s bizarre episode in which Sholom Mordechai was taken to the hospital for an infection on his arm and kept there for a few days, while his family was kept in the dark about his whereabouts.

 

BLACKOUT

 

Prison regulations forbid divulging where an inmate is being taken when he leaves the prison, to protect the deputies accompanying him, it was later explained to Leah Rubashkin. Sholom Mordechai was therefore not permitted to contact his family. When questioned as to whether he was a patient in the local hospital, the hospital said he was not. There was a complete information blackout regarding him.

 

“It took a special judge’s order before one of our attorneys finally found out where he was, but we were told nothing about his condition and we were very anxious,” Leah said. “We wanted our doctor to be involved in his care. They guards wouldn’t allow it. They wouldn’t allow me to talk to him. I think they would treat an animal with more compassion.”

 

“He was in the hospital over Shavuos,” she said. “The guards at first denied him his siddur and his tallis and tefillin. He explained that he couldn’t eat without first praying and needed his tallis and tefillin. ‘So starve,’ one of the guards said.”

 

Sholom Mordechai did just that until late that evening. Then, seeing he wasn’t budging, the guards yielded and brought him his siddur, tallis and tefillin. One of the shlichim brought him some food for Yom Tov and his family over-nighted him a Tikkun Leil Shavuos. The hospital never gave it to him.

 

“The hospital hooked him up to an IV and put him on a strong dose of antibiotics for a staff infection,” said Leah. “He was treated like a dangerous prisoner, forced to sleep with shackles on his legs. The infection had started from cuts he sustained on his arm when he was dragged on the floor to his cell in Black Hawk County Prison and left in a filthy room overnight. The wound was neglected and the infection started to spread. By the time he was able to persuade a nurse at the prison to look at his arm, his whole body was aching.”

 

Sholom Mordechai has been back in court since Friday. His family says that considering everything, his spirits are good and, despite some lingering weakness from the infection, he feels well.

 

“That fact that we can see him and talk to him each day in court, before the trial continues, is the highlight of the day,” Leah said.