Mei’afeilah L’orah – From Darkness to Light

By Debbie Maimon

They came by the thousands, dancing and singing in the streets with a jubilation that swept Jewish communities across the world. Shalom Mordechai Rubashkin is free. People wept unabashedly as they relayed the news, many shedding tears of joy for a man they had never met but had come to know as a symbol of steadfast hope and faith throughout his long quest for justice.

Those who had followed the case recalled his 2010 state trial following an indictment on over 9,000 counts of child labor. Allegations of worker abuse at the meatpacking plant, safety violations, exposing children to dangerous chemicals and machinery and other charges had all been aired at this trial. A hostile media predicted a slam dunk victory for the government. Yet trial testimony proved the charges were baseless, and the jury handed Shalom Mordechai a sweeping acquittal.

He had been in federal prison at the time, serving a 27-year sentence, and celebrated the dramatic vindication alone in his cell. Now, friends and supporters congratulating him on his release from prison could finally shake his hand for that earlier victory as well, a miracle in its own right.

Through his letters to family members shared with the Yated, and in articles Shalom Mordechai wrote from prison for this paper over the years, people had glimpsed his life behind bars. It was a very partial view because he didn’t want to sadden others, he wanted them to share his confidence in his imminent release, in the yeshua he passionately believed was around the corner.

So only those closest to him knew how he fought every waking moment to resist the darkness and degradation in one of the coldest regions of humanity.

His letters were aglow with faith in and reliance on Hashem, with poignant Torah insights and loving, encouraging words. “Dearest Kinderlach, he wrote Erev Yom Kippur, …Hashem is everywhere and we can serve Him in whatever matzav we find ourselves in, with simcha and geshmak. Even in this dark place devoid of kedusha, a person can connect with Hashem Yisborach and feel His love.”

Visitors to the prison walked away uplifted by his contagious warmth and serene trust that Hashem would free him keheref ayin, “even in time for Shabbos,” his trademark farewell. Those who read his letters were moved by an example of someone standing firm through life’s trials. People davened for him and for his family, gave tzedakah in his zechus, and begged Hashem for his release.

But the weeks turned into months and months stretched into years as court setbacks and defeats piled up. Sukkos came and went. Chanukah. Purim. Pesach. Shavuos. Summer settled in with suffocating humidity in an institution housing thousands of inmates in very tight quarters. Tisha B’av… Elul… Tishrei… The days shortened, the weather turned cold. Winter descended. And then it was Chanukah.

“Hope springs eternal in the human heart,” somebody once wrote. For many of those watching the case, hope alternated with a cold fear in the pit of the stomach.

So many efforts had been poured into obtaining a new trial. The defense briefs arguing against a wildly inflated sentence had been recognized by prominent legal experts as “cogent, masterful.” Over a hundred leading judicial and legal luminaries had written to the president, singling out the Rubashkin case as an outrageous abuse of justice and pleading for clemency on his behalf. 30 congressmen from across the aisle had voiced concerns over the troubling evidence of prosecutorial and judicial conduct.

Yet Shalom Mordechai continued to languish behind bars.

An End, And A Beginning

The seasons dragged by. Then, in early December came another disappointment, one more in a string of legal dead ends. This was a denial of his motion to the 8th Circuit Court of Appeals, asking the full court to grant him a hearing to prove that his arguments in a 2255 Petition had sufficient merit to justify an appeal.

“We didn’t tell him about the denial right away,” commented his Los Angeles-based attorney Gary (Yosef Chaim) Apfel in an interview with the Yated. “On a legal level, it was just about the end of the line. The only remaining option was an appeal to the United States Supreme Court. The Court had declined to hear the case a number of years earlier. We had no illusions about our chances.”

Mr. Apfel, a partner in the law firm of Pepper Hamilton LLP, had become co-counsel to Shalom Mordechai three and a half years earlier after an encounter with Rabbi Zvi Boyarsky of the Florida-based Aleph Institute. The organization assists families in financial crisis, while providing support to their loved ones in prisons or mental institutions.

Boyarsky had invested hundreds of hours into reaching out to congressmen and to high-ranking individuals in the legal community, soliciting help in Shalom Mordechai’s defense.

“Gary came to my house with a donation for someone about to be evicted from his home,” recalled Rabbi Boyarsky in an interview with Yated. “We got to talking and the subject of Shalom Mordechai Rubashkin came up. Gary knew about the case. He was very sympathetic to his plight and asked if he could be of help in any way. Shortly afterwards, he met the family and went to the prison to meet Shalom Mordechai. The two just clicked and Gary threw himself into the case pro bono. He brought on board former FBI director Louis Freeh, whose support was very important.”

Soon, Apfel was working with Iowa attorney Stephen Locher, a brilliant legal mind and magnificent writer. The LA attorney together with Locher mapped out strategy for the next stage in the struggle for justice. Shalom Mordechai was always an important part of the strategy sessions.

“We’d speak by phone once a week and I’d fly in to visit him in Otisville every five or six weeks to get his input in whatever we were working on,” Apfel said. “Shalom was crucial every step of the way. He had the final word.”

Locher had joined the defense team after Shalom’s first appeal was denied. In a talk with Yated, he recalled being impressed by the support the case had garnered. “Former DOJ officials had spoken out against Shalom’s excessive sentence well before I became involved in the case,” he related. “The ACLU of Iowa had gotten involved.”

The ACLU and the Washington-based NACDL (National Associations of Criminal Justice Lawyers), in addition to some of the nation’s most prominent legal and judicial experts, had written amicus curiae to the 8th Circuit, accompanying the first post-conviction appeal argued by attorney Nathan Lewin.

The thrust of their arguments was that Shalom Mordechai’s trial had been invalidated by the appearance of bias on the part of Judge Linda Reade. They called for a new trial, transferring the case to a different judge or, at minimum, granting Shalom Mordechai a new sentencing. Although the appeal failed, its compelling arguments, supported by outstanding legal authorities, lay critical groundwork for the later 2255 Petition.

“What really impressed me coming into the case,” remarked Locher, “was the diversity of support Shalom had.”

Bi-Partisan and Bi-Religious Support

A host of distinguished former DOJ officials and a bipartisan cross-section of lawmakers and law experts had written separate and joint letters from 2010 to 2012 to then US. Attorney General Eric Holder, petitioning him to review the case.

Holder ignored the many petitions from congressmen, but their collective voices, together with tireless activism by other supporters, succeeded in raising the profile of the case.

Rabbi Pinchos Lipschutz, publisher and editor of the Yated, almost singlehandedly turned the tide of public opinion about the case by daring to come to Shalom Mordechai’s defense when so many had repudiated him. This author recalls an email from Rabbi Lipschutz in 2008 in which he called for support of a fellow Jew who he saw as the victim of a modern-day blood libel. “Anything you can write in his defense will be very greatly appreciated, as he is being unjustly trashed,” he wrote.

At that time, Rabbi Lipschutz was criticized, even jeered at, for taking the side of a man who was being almost universally vilified. Yet, he had full clarity that he knew the truth and persisted. Over the next eight and a half years, the Yated ran scores of articles that condensed for readers the various defense motions, keeping them informed of game-changing developments at every step of Shalom Mordechai’s quest for justice. The relentless coverage chipped away at the misinformation surrounding the case, bringing unknown facts to light that slowly allowed the truth to filter through.

“He was a source of unwavering support for Shalom from beginning to end,” noted Apfel.

The case reached a turning point when the defense team uncovered powerful post-conviction evidence that prosecutors had solicited perjured testimony and deliberately misled the judge. Their hard-hitting briefs ripped aside the veneer of legality with which government wrongdoing had been cloaked.

“With every legal dead end, we couldn’t help but feel disheartened,” related Apfel. “But it soon became clear that while our briefs were met with indifference in Iowa, they were unlocking doors in Washington. In some places, they had an explosive effect.”

Harvard law professor Alan Dershowitz expended effort in advocating for a commutation of Shalom Mordechai’s sentence during the Obama administration. He continued his efforts with the White House after President Trump took office, raising the issue with White House counsel and with the president.

Speaking to the press after the president’s commutation of the sentence, Dershowitz noted that the issue that he felt resonated with many who supported clemency for Shalom Mordechai was the subversion of justice that resulted in incarcerating a man for 27 years for losses he was not responsible for.

“The prosecutorial misconduct in the case [was blatant], he said. “…The way prosecutors manipulated the sale price of the business, bringing it down in order to ramp up the losses. That, in turn, drove up the prison sentence.”

Dershowitz noted that the support for Shalom Mordechai had been not only bi-partisan but bi-religious. We had many Christians, many non-Jews, involved in this effort,” he said. “I have never seen a more bi-partisan, diverse group of people seeking justice than in this case.”

He credited the contributions of Larry Thompson and Louis Freeh, former U.S. Deputy Attorney General and former FBI director, respectively, who championed the cause of Shalom Mordechai’s release.

A Promise Kept

“These two men made a promise to each other that they would not rest until Shalom was free,” Apfel told this writer.

The two traveled to Cedar Rapids, Iowa, in 2016 to meet with U.S. Attorney Kevin Techau and urge him to commute the sentence to time served. Joining them were former Assistant U.S. Attorney General Philip Heymann and former Deputy U.S. Attorney Charles Renfrew. Present also was Shalom Mordechai’s counsel, who described the dramatic meeting to the Yated.

“Charles Renfrew was so concerned about the case, he told me, ‘If I had to, I would walk from San Francisco to get this rectified,’” recalled Apfel. “This from a man in his high eighties.”

The meeting began quietly, with each member of the delegation putting forth compelling reasons to release Rubashkin. Renfrew focused on the way the 27-year sentence had been built on false testimony solicited by prosecutors at Shalom Mordechai’s sentencing hearing.

“Your prosecutors wanted to punish Aaron Rubashkin. But since they couldn’t, they did the next best thing: destroy his company and pin the losses on his son,” Renfrew said bluntly, as recounted by Apfel. “If you don’t rectify that, you’re contributing to the shame and disgrace this case has brought not only to the U.S. Attorney’s Office of Iowa but to the entire Department of Justice.”

Philip Heymann, a man in his eighties who felt too frail to make the trip but had agreed to be flown in on a private plane, suddenly broke in. “Perjury!” he shouted, beside himself. “The prosecutors listened while this woman [Paula Roby] perjured herself. They tolerated perjury if not actively solicited it!”

Techau blanched but remained quiet. The meeting ended in a stalemate.

Although the Iowa meeting did not bear fruit as hoped, advocacy efforts in Washington continued behind the scenes. “Shalom Mordechai was convinced that the yeshuah would come when all legal options were exhausted. Only then would we fully appreciate the Yad Hashem.”

And so it was that on the last day of Chanukah, a guard went to Shalom Mordechai’s cell and told him, “Pack up and leave. Get going.”

“What’s the problem?” he asked, not daring to hope. Maybe they were going to transfer him somewhere. That would not be unusual.

“You’ll find out. Just get going.”

He had just washed for hamotzie in his cell for a humble seudas Zos Chanukah. He grabbed his tallis and tefillin with a small Chovos Halevavos inside and went to the prison office. After a few minutes, the warden appeared. “Congratulations,” he said, holding out his hand. “President Trump has commuted your sentence. You are free to go, as soon as someone comes to pick you up.”

“My father was shocked,” a family member related. ‘It’s a Chanukah miracle!’ he blurted to the warden. “After a few seconds of deepest heartfelt thanks to the Ribono Shel Olam, he came back to earth. ‘Can I go back to the cell?’ he asked. “I have to say a prayer (bentch).’”

“‘No, you can’t go back there,” the warden said. ‘You stay here.’

“So he sat down and bentched until my mother came to pick him up. And what a bentching that was.”

  • • • • •

In an op-ed in the Wall Street Journal in November 2016, co-authored by former Iowa U.S. Attorney James Reynolds and former Deputy U.S. Attorney General Charles Renfrew, the distinguished legal authorities urged then-President Obama to pardon Shalom Mordechai. The article castigated prosecutors for “illegally overstepping their bounds, soliciting false testimony and misleading [the court].”

“Every day Rubashkin spends in prison is a day that he should be spending as a free man, with his family,” they wrote.

Now, finally, with great joy and gratitude to the one Above, he is doing just that.