Sunday, Apr 14, 2024

Motion in Rubashkin Case

Sholom Mordechai Rubashkin's motion for mistrial, filed three weeks ago, has triggered a fiercely defensive response from the office of Iowa U.S. Attorney Stephanie Rose. The government brief contains glaring inconsistencies with facts on record, suggesting troubling attempts at a cover-up. The motion for mistrial, filed by appellate lawyer Nathan Lewin with Iowa attorneys Guy Cook and Montgomery Brown, accuses Chief Judge Linda Reade, who presided over the trial, of unlawful over-involvement in the planning stages of the ICE raid. New evidence based on documents released under FOIA painted a picture of collaboration by Judge Reade with law enforcement in the planning of the ICE operation and in the hundreds of prosecutions that followed.

Those actions should have rendered her ineligible to preside at the trial of those arrested, including Sholom Mordechai, his attorneys argued.


The motion cited not only her participation in meetings and strategy sessions with ICE agents and Iowa federal prosecutors, but questioned her deliberate concealment of these activities from the defendant, when the subject of recusal was discussed with defense lawyers.


These violations of the judicial code constitute grounds to vacate the trial and conviction, and to grant Sholom Mordechai a new trial, the motion asserted.


In response, Iowa U.S. Attorney Stephanie Rose issued a sweeping denial that Reade was involved in anything other than “logistical cooperation” and insisted that Reade could not have been prejudiced against any of the defendants since she was never told who they were.


“Although the Court (i.e., Judge Reade) was necessarily involved in those aspects  of the logistical planning that impacted court functioning, Chief Judge Reade was never told until the day of the raid that Agriprocessors was the target of the operation,” the Government’s Response states.


“Accordingly, Chief Judge Reade was never made aware that defendant Sholom Rubashkin had any potential connection to the government’s investigation and planned enforcement action.”


The ludicrousness of this claim is self-evident to anyone even slightly familiar with the geographic location of Agriprocessors and nearby Waterloo, where nearly 400 arrested workers were fast-tracked though the court in four days.


Which Is it, Ms. Rose?


The government’s response makes the mistake of trying to accomplish mutually exclusive goals: maintaining Reade’s complete ignorance about which business was going to be raided by ICE, while at the same time attempting to justify her visit to the Waterloo site months before the raid, when discussions were underway about where to imprison and bring to trial hundreds of expected “arrestees.” 


Judge Reade herself helped select this compound, as is clear from ICE records that document her visiting the site together with federal prosecutors prior to the May 2008 ICE operation.


Reade is on record as urging federal prosecutors to secure the rental of the site as early as possible so that she could move ahead with preparations to set up the court and temporary jail facility there. [No courthouse in the vicinity of Postville was large enough to handle hundreds of cases at once.]


In addition, the government brief hastens to note that Judge Reade’s reason for choosing Waterloo was a humanitarian one: “It would make it easier for arrestees’ families to attend court proceedings.”


If these concerns were part of Reade’s calculations, she was obviously fully informed that Postville was the intended site of the raid. Since Agriprocessors was the only factory in a radius of many miles that employed hundreds of immigrants, who else could possibly have been the target?


Yet, U.S. Attorney Stephanie Rose, in the government’s brief, maintains that “Chief Judge Reade was never told that Agriprocessors was the target of the operation.”


So which is it, Ms. Rose? If Reade didn’t know, why did she choose to set up shop in Waterloo out of consideration of the defendants’ families, as the government’s response maintains?


And if she did know that Agriprocessors was about to be raided, and there was nothing wrong with her level of involvement in the planning of the operation, why would the government seek to cover it up?


Government Brief Ignores Core Complaint


Despite 40 pages of legal argument, “there is not one word justifying the “cover-up” – meaning Reade’s failure, and that of the prosecutors, to tell the defense lawyers about a single one of the weekly meetings she had privately with prosecutors and immigration officials,” attorney Nathan Lewin said in a phone conversation with the Yated.


Those conferences, described in an April 11, 2008 document as “weekly operational/planning meetings,” included top ICE officials, the U.S. attorney’s office, the U.S. Marshall’s Service, and none other than Chief Judge Linda Reade.


These regular meetings are themselves sufficient under Supreme Court precedents to invalidate Reade’s participation in the trial, Lewin stressed.


“I think we are on very strong legal ground in seeking to invalidate the trial, although the prosecution and the judge will fight that to the bitter end,” he said.


Stephanie Rose Under The Microscope With Linda Reade


For those who know something of U.S. Attorney Stephanie Rose’s role in the Postville prosecutions, it is ironic, to say the least, to see her rush to Judge Reade’s defense in the government’s response to the Rubashkin motion for mistrial. 


Rose herself has come under the same scrutiny to which Reade is now being subjected for her role in the Postville prosecutions which are widely viewed as a stain on American justice.


“[At the time of the raid], Rose was among the key assistant U.S. Attorneys who drove the mass prosecutions of nearly 300 undocumented immigrant workers arrested at the Agriprocessors,” wrote David Leopold, president of American Immigration Lawyers Association.


“There the government brazenly used the federal identity theft law as a hammer to coerce the workers into pleading guilty to social security fraud, despite questionable evidence, and accepting automatic deportation.


“A prosecutor’s job is to do justice, not merely to convict. The Supreme Court’s ruling that charges of identity theft were improperly applied in the Postville prosecutionsraises serious questions about whether Stephanie Rose, who has been nominated as U.S. Attorney for the Northern District of Iowa, is the right choice for the job,” Leopold wrote.


The Whole Truth: Stephanie Rose


A 2009 New York Times article slammed the nomination of Rose as U.S. Attorney for the Northern District of Iowa, reminding the public of Rose’s key role in the Postville prosecutions.


Elaborating on actions of hers that crossed the bounds of legality, Leopold cited a May 12, 2008 press release from the U.S. District Court for the Northern District of Iowa (under Chief Judge Reade). The press release announced the temporary assignment of federal judges and court personnel to Waterloo, Iowa, “in response to the prosecution of numerous illegal aliens.”


“This notice was issued by the court before any of those who were arrested and charged had been found to be in the country illegally,” AILA’s Leopold pointed out.


The raid was underway at the time, and close to four hundred immigrants were first being transported to Waterloo where they were detained pending court proceedings. About 75 were later released, yet the District Court had already labeled all of them “illegal aliens.”


Leopold went on to ask some very searching questions.


“Since her nomination last year, Rose’s supporters tried to distance her from any role in the Postville cases, claiming that the prosecutions were directed by the Department of Justice in Washington, DC.


“At the time, Rose was the third in the office chain of command in the Attorney’s Office of the Northern District of Iowa. Did she really have no clue that the Postville prosecutions were being planned by her colleagues?


“Did she really have no prior knowledge of the ICE Postville investigation or that criminal arrest warrants for 697 Postville workers were being prepared and sought by her office in early April 2008?


“And, in light of the Supreme Court unanimous decision that the identity-theft law could not be applied to prosecute immigrants only because they used false Social Security numbers, does she still think use of the law as a hammer to obtain guilty pleas from the Postville defendants was appropriate?


“Stephanie Rose needs to tell the truth, the whole truth, and nothing but the truth. The public is entitled to nothing less,” wrote AILA.


Now, with the disclosure of the ICE documents, and with the expected release in the near future of the unredacted [unedited] portions, the public is a step closer to discovering the full extent of what went on behind closed doors between Stephanie Rose, her fellow colleagues in the Attorney’s Office, ICE agents and Chief Judge Linda Reade.


“It becomes increasingly important to impress upon the Department of Justice the extent of how improper these proceedings were on the prosecutors’ part and on the part of the judge,” attorney Lewin said.



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