New Legal Front Opened In Rubashkin Case

That denial and the Supreme Court’s refusal to review the case in April 2012 stirred outrage and dismay. Given the high level of public interest, and the list of legal luminaries, scholars, formal attorneys general and former U.S. Attorneys who stood behind Sholom Rubashkin’s appeal, it was deeply troubling to many that the Supreme Court turned it down.

“… A distinguished array of legal scholars and experts have declared the case to be a miscarriage of justice. As such, the justices have sadly squandered an opportunity to right a terrible wrong,” noted Agudath Israel of America in a statement at the time.

A CASE THAT WILL NOT DIE

“The Supreme Court’s refusal to consider the Rubashkin case — which is the greatest injustice I have seen in more than 50 years of law practice – was very distressing,” said lead appellate attorney Nathan Lewin. “But the legal battle is not over. There are, in American legal history, a few famous cases that will not die. The Rubashkin case is in that league. Even at this juncture, there are legal avenues for overturning a fundamentally unfair trial.”

In the current legal effort, Sholom Mordechai is being represented by attorneys Jim Wyrsch and J.R. Hobbs of the prestigious Wyrsch Hobbs Mirakian law firm in Kansas City, Missouri.

Together, Wyrsch and Hobbs have successfully litigated numerous post-conviction cases in the 8th Circuit Court of Appeals, including Section 2255 motions, in which the court is asked to vacate the judgment; to re-sentence the defendant or to grant a new trial.

Wyrsh and Hobbs will be joined by Professor Douglas Berman, a nationally recognized authority on criminal law and sentencing.

“2255 actions are not only the only way, but often the very best way, to unearth and document flaws in the prosecution and sentencing of a defendant in a high-profile case,” Professor Berman has said. “The best lawyers have a terrific track record of getting death sentences reversed through habeas appeals, and Mr. Rubashkin is serving a functional death sentence.”

In a phone interview with Yated, Mr. Wyrsch said he had met with Sholom Mordechai at Otisville Prison and had extensive discussions with him and others knowledgeable about the case. “We’re still in the preliminary stages… we’re exploring numerous strategies, but it’s clear this man is entitled to relief. There are substantial issues here that could be raised effectively in a 2255 motion,” Wyrsch said.

Experts say the most common grounds raised in a 2255 motion is evidence that the defendant’s counsel provided ineffective assistance, a violation of the Sixth Amendment. Other possible claims include violations of due process or prosecutorial misconduct. A claim that was raised on appeal, however, is usually not permitted to be raised in a Sec. 2255 motion.

An exception to this rule – of acute importance in the Rubashkin case – is when new evidence has been uncovered that challenges the legality of the criminal conviction, the sentence, or the propriety of the judicial proceedings that led to these outcomes.

This provision is of special relevance in the Rubashkin case, particularly in the ongoing FOIA lawsuit effort to obtain classified documents from the FBI and other federal agencies that took part in the 2008 raid of Agriprocessors.

ATTORNEYS ANTICIPATE NEW FINDINGS FROM FOIA LAWSUIT

The lawsuit was filed by Mr. Larry Rosenberg of the prominent Jones Day legal firm, in September 2011, in a second, much broader FOIA effort to obtain full disclosure from federal agencies involved in the 2008 federal investigation leading up to the Rubashkin trial.

An initial FOIA lawsuit targeting only ICE produced materials (post-trial) that uncovered Judge Linda Reade’s leading involvement in the raid that should have disqualified her from presiding over the trial.

But the 8th Circuit Court of Appeals sidestepped the evidence of Reade’s collusion, rubberstamping the government’s position that Rubashkin’s new-trial motion should be denied. Evidence of Reade’s collaboration with prosecutors was also the lynchpin of a Cert Petition to the Supreme Court, which was denied the following year.

“What is different about the current litigation,” commented Rosenberg in a phone interview with Yated earlier in the case, “is that it is far more sweeping and all-inclusive, and also more focused. It addresses the Washington ‘parent’ agencies instead of the Iowa state regional offices, with 40 paragraphs detailing the fullest possible range of information.”

All relevant documentation from ICE, the FBI, the Marshall’s Service and the Executive Office of the U.S. Attorney that pertains to the 2008 raid and Postville prosecutions, is being sought in this FOIA lawsuit, said Rosenberg. “That includes every email and document filed with these agencies that record or report communications with Judge Reade during the time frame in question.”
The possibility of uncovering “a smoking gun with far more incriminating power than the redacted ICE documents produced,” is therefore more likely, the Jones Day attorney said.

This evidence can be used in a number of ways, one of which is a “2255 motion,” which produces conclusive evidence that the accused has been wrongfully incarcerated. In this case, using compelling proof of a judicial lack of neutrality, the defense would petition for a review of the case before an impartial judge.

FOIA LAWSUIT AT CRITICAL POINT

The FOIA lawsuit is at a critical point. After interminable stone-walling on the part of the government, costly delays and foot-dragging, all plaintiff motions and government countermotions have finally been filed in a Washington, D.C. court and await a judge’s ruling.

That ruling will determine whether the federal agencies involved will be forced to turn over significant documents, from which new evidence that may be crucial to Sholom Rubashkin’s fate may be obtained.

One example of potential new findings that could be instrumental in an “ineffective counsel” motion is evidence that important evidence that would have moved Sholom Mordechai’s attorneys to request Judge Reade’s recusal, was withheld from them until after the trial.

If evidence shows that the government’s failure to heed FOIA laws in a timely fashion, before the trial, crippled the Rubashkin attorneys’ ability to defend him properly, that would constitute a strong “ineffective counsel” argument, legal sources close to the case affirmed.

Mr. Wyrsh told Yated that he and his co-counsel and legal partner, Mr. J.R. Hobbs, will be consulting with all the other attorneys who are working on, or have worked on the case, including Jones Day attorneys and renowned appellate attorneys Nathan Lewin and Paul Clemente.

The attorney expressed his firm’s resolve to invest its best effort to obtain relief for Shalom Rubashkin.

“We’re going full throttle on this, working to get a full handle on all aspects of the case, with the input of some of the top legal minds in the country who have given Sholom Rubashkin their best,” Wyrsch said.

“This is a mission not only of the mind but the heart.”

He added that with an October 1 deadline for the 2255 motion to be filed, “time is of the essence.” A vigorous fund-raising effort is underway by friends and supporters of Sholom Mordechai to enable him to have a final chance at justice in the U.S. Court system.