Sunday, Jul 21, 2024

Rubashkin Case Tests American Justice

Framed against the issue of prosecutorial abuse of power that has captured national headlines, the Rubashkin case is increasingly seen as testing the soundness of the American system of justice. A much-publicized two-part series in a leading magazine revealed that prosecutorial misconduct plagues courtrooms across the nation. Amid the debate stirred by these disclosures, mounting calls of foul play in Sholom Mordechai Rubashkin's case have been reaching the Department of Justice. Recent revelations of prosecutorial and judicial abuses in the case, which powered a hard-hitting defense motion seeking a new trial for Sholom Mordechai, have prompted letters of protest from a growing array of congressmen.

To date, a dozen congressmen have written to Attorney General Eric Holder, protesting the evidence that recently surfaced of improper collusion between the judge and the prosecutors who convicted Sholom Mordechai. A number of the congressmen decried what they called “discriminatory treatment” meted out to him after his arrest in 2008, when he was denied bail.


Reade Denies Motion For New Trial


The new-trial motion, filed six week ago by lead appellate attorney Nathan Lewin along with Guy Cook and Montgomery Brown, was denied by Judge Linda Reade last Thursday.


Dismissing compelling evidence that she had been over-involved in planning for the ICE raid on Agriprocessors, Reade insisted that she had done nothing improper by holding numerous ex-parte meetings with federal agents.


She denied cooperating with the US Attorney’s Office on anything but “logistics” in preparation for the 2008 immigration raid. She denied knowing that Agriprocessors would be targeted and when the raid would take place. And she insisted that she had no foreknowledge that Sholom Mordechai would be sought by federal agents.


In view of the nature of the charges, Sholom Mordechai’s attorneys had asked that Reade turn the new-trial motion over to an impartial judge. To expect one who is accused of impropriety and misconduct to be capable of rendering an honest “self-judgment” flies in the face of common sense, critics of Judge Reade reasoned.


“An honest person would acknowledge the human tendency to rationalize and downplay one’s own mistakes, and would therefore have turned this case over to another judge,” a member of the defense team said.


Judicial Arrogance


“The fact that she ruled on the question of her own guilt, and insisted on assessing herself the serious charges against her, points to judicial arrogance,” attorney Nathan Lewin said in an interview with the Yated.


He noted that Judge Reade’s defense of her actions is “woefully inadequate” and failed to address the serious allegations of judicial misconduct that were made against her.


“She took pains to clarify that contrary to information recorded in the ICE documents, she never scouted out the National Cattle Congress site with the Iowa Attorney. But she adroitly skirts all the other charges, simply brushing them aside as not worthy of consideration. That only lends them more weight,” said Lewin.


Reviewing the most serious charges, Lewin said Reade failed to disclose or explain how often or why she met repeatedly with the prosecutor on many occasions beginning six months before the raid.


“Nor does she explain why she requested a meeting with ‘many attendees’ from law enforcement, during which she stated she was ‘willing to support the operation in any way possible,’” he said.


“And what of her demand from the prosecutor for a ‘final game plan’ on the anticipated raid, and the weekly meetings cited in the ICE memoranda with the prosecutor prior to the raid?” the appellate attorney asked.


He noted that Judge Reade, in her ‘Order,’ “ignores the sworn affidavits of Mr. Rubashkin’s lawyers, that had they known what has now been disclosed by the ICE documents, they would have moved to disqualify her.”

What would likely have happened then, he said, is that “under governing standards set by federal law and Supreme Court decisions, she would have been disqualified. And she would not have had the authority to issue the dozens of rulings that harmed Sholom and resulted in the jury’s adverse verdict.”


Reade Contradicts Government Claim


Reading Reade’s order of denial, one is struck by her bland denial of facts on the record. She argues that “even assuming the truth of Mr. Rubashkin’s allegations [that her collaboration with federal agents tainted the trial],” inasmuch as the trial was about financial charges not immigration counts, the secret meetings about the raid had no bearing on the jury’s bank fraud verdict.


Yet, prosecutors themselves stated explicitly that immigration charges were crucial to the jury’s guilty verdict.


Lead prosecutor Peter Deegan made this clear in court papers. Explaining his reasons for seeking dismissal of all the immigration charges, he wrote: “The verdict was premised, at least in part, on the fact that the defendant knowingly misled a bank about the fact that he was harboring illegal immigrants.”


Therefore, he reasoned, a whole new trial about “harboring” charges that were already encompassed in the jury’s verdict would be a waste of time and money.


Deegan’s statement is profoundly significant. What he meant was that the verdict reflected the jury’s belief that the defendant defrauded the bank by harboring illegals and lying about it [by assuring the bank that Agriprocessors was in full compliance with the law, when in fact illegal immigrants were found there].


But with the dropping of immigration charges, whatever grounds existed for linking bank fraud to harboring illegals – and for justifying hours of testimony that poisoned the jury – collapsed.


How could it be said that the defendant “misled a bank” about compliance with a law that he was ultimately not found to have violated [since the charges were dismissed]?


A jury was thus profoundly influenced by a flood of testimony that should never have been admitted, based on charges that were dropped.


This testimony was allowed by a judge who, due to secret pre-trial collaboration with the government, had lost even the appearance of impartiality.


Ignoring the government’s stance confirming the centrality of immigration testimony to the jury’s verdict, Judge Reade resorted to feebly arguing that she “fails to see how the new evidence” [of her ex-parte communications with the government] could have affected the trial and verdict. (See below.)


Rep. Anthony Weiner: “Credible Allegations of Misconduct”


Many of the congressmen who wrote to Attorney General Holder agreed that the evidence of foul play that surfaced in the ICE memoranda cries out for investigation.


Congressmen such as Anthony Wiener (D-NY), Rep. Bill Delahunt (D-Mass), Rep. Brad Sherman (D-Ca) and Rep. Shelly Berkely (D-NV) and Rep. Bill Pascrell (D-NJ) have urged Holder to investigate the “credible allegations of misconduct” based on disclosures in the ICE documents.


Rep. Delahunt, in particular, called attention “to what appears to have been a tainted and secret relationship between the trial judge and the government leading to the prosecution of Rubashkin.”


A Long-Running Power Clique


Rep. Delahunt’s letter hints at statements made by Iowa attorneys, in interviews with the Yated, testifying to a long-running power clique in the Iowa Attorney’s Office that includes Judge Reade, who was a former member of that office prior to her appointment as a district judge.


“Members of this office are deeply entrenched. There has been scarcely any turnover in the past twenty years. These prosecutors are accustomed to doing whatever they went – ramming through the courts whatever convictions and sentences they decide on. Misconduct is hard to prove, and there is no accountability,” one attorney said, asking not to be identified.


In addition to the congressmen noted above, adding their voices to the calls for a thorough Department of Justice investigation are Rep. Mike McMahon (D-NY), Rep. Tim Murphy (R-Pa), Rep. Alan Grayson (D-Fla), Rep. Chris Smith (D-NJ), Rep. Carolyn Mcarthy (D-NY), Rep. Sheila Jackson Lee (D-TX) and Rep. Bob Filner (D-Ca).


Rep. Brad Sherman: Bail Denial Was “Discriminatory Treatment”


Rep. Brad Sherman, in his letter, took Attorney General Holder back to the early stages of the prosecution, when Sholom Mordechai was denied bail pending his trial. Sherman protested the discriminatory treatment in this punishment, noting that federal prosecutors had argued that as a Jew, Sholom Mordechai posed a unique flight risk, because he might flee to Israel to escape trial.


The magistrate judge, Judge Scoles, put his imprimatur on this argument and denied bail. The move outraged the Jewish community, which regarded it as a dangerous precedent that threatened all American Jews.


In the face of sharp protests from leaders of Jewish organizations and prominent officials, the decision was overturned by a higher court, but not before Sholom Mordechai spent 76 days in jail for the sole reason that he is Jewish.


“Denying a defendant bail solely due on account of his Jewish faith is highly discriminatory,” Congressman Sherman wrote to Attorney General Holder. “If such a policy exists, I request that you reverse it immediately.”


Rep. Sheila Jackson Lee: “Miscarriage of Justice”


In an especially pointed letter, Rep. Sheila Jackson Lee articulated her concern that a “miscarriage of justice” occurred “as a result of Mr. Rubashkin being denied bail after his conviction and before sentencing.”


Rep. Jackson Lee, who sits on the Judiciary Committee as well as on various congressional subcommittees, questioned Judge Reade’s unwillingness to accept Sholom Mordechai’s spotless record of bail compliance as proof that he was not a flight risk.


Why, she asked, were Mr. Rubashkin’s prior actions not regarded as “clear and convincing” evidence that fears that he would try to escape trial were unfounded?


“I urge you to investigate these and other alleged injustices against Sholom Rubashkin and eagerly await your response,” the congresswoman wrote.


Rep. Carolyn Mcarthy: “Grossly Disproportionate Punishment”


Congressmen Sherman, Grayson, Delahunt, McMahon, Mcarthy, Filner and others raised the issue of the 27-year prison sentence, viewing it a severe injustice to a 51-year old defendant with no hint of violence or prior crime.


“This case raises very serious issues of judicial and prosecutorial misconduct, resulting in an unfair and grossly disparate sentence,” wrote Congressman Delahunt to Attorney General Holder. “I believe these allegations are sufficiently serious to warrant an investigation by you.”


Rep. Sherman cited the letters to Judge Reade by six former attorneys general who called the virtual life sentence unjustifiably harsh and had urged her to be guided by moderation and fairness.


“Your office should review this case because of the excessively harsh sentence imposed on Mr. Rubashkin,” wrote Rep. Carolyn Mcarthy. “It appears to be grossly disproportionate to the sentences given to other non-violent, white collar offenders – some of whom have been served sentences as low as one year for similar offenses.”


Rep. Mike McMahon: “Incorrect Interpretation of Sentencing Guidelines”


Rep. Mike McMahon called Attorney General Holder’s attention to the misapplication of the Federal Sentencing Guidelines. He slammed the prosecutor’s recommended sentence as based on “incorrect interpretation of the Guidelines” and “ignorance of the mitigating circumstances” in the case.


The recommended sentence took no account of Sholom Mordechai’s large family, his autistic son, his lack of any prior criminal history and his extraordinary record of community service and philanthropy.


“Amazingly, instead of taking the advice of experts such as the former attorneys general and past Justice Department officials,” McMahon wrote to the Attorney General, “Judge Reade actually increased the length of the sentence prosecutors had recommended, from 25 to 27 years.


Secret Meetings


All the congressmen who were moved to write to Attorney General Holder expressed their concern over the ex-parte meetings between Judge Reade and the Iowa’s attorney office that were uncovered by documents released through FOIA.


“I request that you review whether any prosecutor involved in the case violated his legal and/or ethical obligations with respect to these ex-parte communications,” Rep. Sherman wrote.


“The Rubashkin case raises issues of questionable legal ethics, excessive sentencing and a potential miscarriage of justice, all of which are a serious concern to me as a senior member of the House Judiciary Committee,” asserted Rep. Jackson Lee.


Congresswoman Shelly Berkely told the Attorney General she was deeply concerned over “the extent of the apparent collaboration between Judge Reade and federal agents. The possible violation of the principles of transparency and fairness – two fundamental features of the American courtroom – are deeply problematic.”


Rep. Bill Pascrell echoed this stance. “I believe the allegations of harsh sentencing of Mr. Rubashkin and the troubling information about non-disclosed ex-parte communications has created enough concern to warrant an investigation by the Department of Justice.”


As congressional concern mounts about a case that is increasingly viewed as a symbol of prosecutorial and judicial misconduct, Sholom Mordechai’s defense team is looking ahead to the appellate process.

Attorney Lewin has vowed to rigorously pursue the case, with plans to file two separate appeals. The first will appeal Judge Reade’s Order denying a new trial. The second appeal will focus on legal errors in the federal trial.

“We are confident that the Court of Appeals will not tolerate the violations of fair and due process that mark this case,” he said. “We look forward to seeing Mr. Rubashkin vindicated in the appellate process.”


The Truth About Illegal Workers At Agriprocessors


What are the facts about whether Agriprocessors employed illegal immigrants? Could all the media reports be false? Would the government have carried out criminal proceedings and deported hundreds of people who were not in the country illegally?

The Yated spoke to defense attorney Montgomery Brown who defended Sholom Mordechai in both the federal and state trials.
“Hundreds of undocumented workers were indeed found at the company, but Sholom was not harboring them in defiance of the law,” Brown explained.
“The issue was not whether Sholom and management knew that undocumented workers were present in the plant. The issue was how to identify the ‘no-match employees’ [workers whose social security numbers didn’t match up] within the confines of a set of laws that were conflicted about how to deal with them.
“And once these illegal immigrants were identified, what was the legal processing for terminating their employment at Agriprocessors? One could not simply dump them. Sholom was attempting to deal with the no-match employees within the parameters of a complicated legal environment.
“We were prepared to prove this by producing an extensive history of email correspondence between Agriprocessors and its immigration attorney, Jay Eaton, from the prominent Nyemaster law firm, who was guiding the company in this process. Unfortunately, Judge Reade barred this testimony.
“The simple fact is that the charges of harboring illegals (which were ultimately dismissed) were very defensible in court. Had we been given a chance to challenge them in an immigration trial, we believe Sholom would have been fully exonerated.”
Co-counsel Guy Cook added, “When Sholom was allowed to defend himself against labor-law violations at the state trial – which included some of the very same charges heard at the federal trial – he won a complete acquittal. This fact raises serious questions about the fairness of the federal trial, at which he was not permitted to rebut the ‘harboring’ charges that so prejudiced the jury.”



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