Rubashkin Lawyers File Emergency Motion for Mistrial

An outcry from civil rights groups such as ACLU and American Immigration Lawyers Associations [AILA], as well as grassroots Hispanic organizations, led to the formation of a House subcommittee in August 2008. The committee’s function was to examine details of the raid’s planning, execution and aftermath, and to investigate allegations of civil rights violations. 

 

The actions of ICE personnel, federal prosecutors and Iowa’s federal court headed by Chief Judge Reade came under scrutiny as committee members sought to determine if the government’s actions crossed legal and constitutional bounds. 

 

Congresswoman Zoe Lofgren, D-CA, who chaired the committee, noted that the mass raid was planned over a long period time. “When was the connection made with the Court?” she questioned a government spokesperson. “What measures were taken to ensure that Judge Reade’s view of the cases would not be affected, and that judicial neutrality would not be compromised?”

 

These questions received no satisfactory answers because then U.S. District Attorney Matt Dummermuth, responsible for the law enforcement action, failed to show up to the hearing. He sent in his place a deputy assistant who had no firsthand knowledge of the raid, and gave misleading replies that did not accurately reflect events.

 

The committee produced no satisfactory answers and congressional interest in the outcome soon fizzled out.

 

The ICE documents would have answered many searching questions raised at the hearing. But they were not available at the time, and ICE refused to release them until Sholom Mordechai’s attorneys sued the government.

 

Then, piece by piece, over many months, they were finally produced – too late to be of help to the committee members or to help Sholom Mordechai defend himself at his trial.

 

BOTH PROSECUTOR AND JUDGE

 

The incriminating documents, which now form the basis of the appellate team’s powerful motion for mistrial, paint a picture of a judge who viewed the government’s law enforcement action against Agriprocessors as an extension of her own authority.

 

“The government’s own memoranda show that more than six months before the raid, Judge Linda Reade began a series of meetings in which she collaborated with the law-enforcement team that prosecuted the case against Sholom Rubashkin,” wrote Nathan Lewin, lead appellate counsel for Sholom Mordechai. 

 

“Without disclosing to defense counsel her meetings with the U.S. attorney and the support she expressed for the raid, she presided at Mr. Rubashkin’s trial, and then immediately had him imprisoned and sentenced him to two years more in prison than the prosecution requested.”

 

According to ICE internal memoranda, Reade had asked for regular briefings on the raid plans, and went as far as to arrange the timing of the raid to accommodate her own vacation schedule.

 

ICE officials provided her with a steady stream of updates as early as seven months prior to the raid’s actual launch. Reade discussed what internal ICE memos call the “charging strategies,” referring to the specific charges to be filed against those arrested.

 

She attended meetings at which briefings by law enforcement were given on how the hundreds of arrested immigrants would be transported to makeshift courts and imprisoned in temporary holding facilities until they were sentenced.

 

As the window of time leading up to the May 2008 raid narrowed, Reade directed officials to give her a precise “game plan,” an internal ICE memorandum said.

 

She even accompanied the assistant district attorney in scouting out the cattle grounds in the nearby city of Waterloo, before the final arrangements were made to use this site for the trial proceedings and as a detention center.

 

READE SHOULD HAVE RECUSED HERSELF

 

Instead of recusing herself from the trial, as required by law when a judge can no longer claim neutrality, Reade concealed from Sholom Mordechai’s defense counsel the magnitude of her involvement with the case when the possibility of their filing a motion for her recusal was discussed.

 

This crucial information was also withheld from the aforementioned congressional inquiry into the raid held in July 2008, two months after the raid.

 

“I was horrified to discover the level to which Judge Reade was involved in prosecutorial functions and was in fact engineering things,” Mr. Lewin said in an interview with the Yated. “It explained some of the mysteries in the case. Why, for example, did she sever the bank fraud charges from the immigration charges, only to allow the prosecution to prejudice the jury for two days with immigration testimony?

 

“Based on what we now know, these moves made strategic sense for someone so deeply invested in the prosecution. A separate immigration trial would have lifted the veil on the scope of Judge Reade’s extraordinary involvement with the prosecution, and defense counsel would surely have moved for her recusal,” Lewin said.

 

NO PRESUMPTION OF INNOCENCE

 

Reade’s bias against Sholom Mordechai was on clear display at his trial and afterward, fueling the conviction in many quarters that the trial resulted in a grave miscarriage of justice.  

 

Trial observers and defense attorneys were disturbed by the one-sided evidentiary rulings that made it impossible for Sholom Mordechai to defend himself.  Key witnesses, testimony and evidence that would have vindicated him were struck from the record. It was clear to observers that for Judge Reade, there was no presumption of innocence in this case. 

 

Further evidence of Reade’s hostility was evidenced by her refusal, without cause, to grant Sholom Mordechai bail pending sentencing. She kept him imprisoned for 76 days while he awaited sentencing.

 

In a final burst of animus, she then sentenced him to 27 years imprisonment, two years more than the draconian sentence prosecutors recommended.

 

“Reade’s bias is so pronounced that her credibility and judgment have been tainted,” Lewin told the Yated. “For this reason, in order to preserve public confidence in the judicial system, we requested that the motion be transferred from Judge Reade, who according to legal protocol would rule on it, to another judge whose impartiality has not been compromised.  

 

The Iowa press has given this story full coverage. Articles defending Judge Reade have been noticeably absent. The court’s only response to the motion for mistrial has been to request a week’s extension to respond, which was granted by the defense. The court’s response will be issued by August 23.

 

READE’S CONDUCT DREW FIRE LONG BEFORE RUBASHKIN TRIAL

 

Judge Reade’s violations of the judicial code of conduct had been criticized long before Sholom Mordechai’s case came to trial. 

 

A New York Times report in August 2008 describes the unprecedented judicial proceedings that followed the ICE raid and the arrests of several hundred immigrant workers.

 

“Immigration and criminal defense lawyers were stunned when nearly 300 illegal immigrant workers were convicted on criminal charges and sentenced to prison – all in just four days,” the article said.

 

This lightning-swift process of arrest-hearing-conviction-imprisonment was made possible by unprecedented fast-track judicial proceedings, and the dispensing of normal due process, immigration lawyers told the New York Times. 

 

“Now the legal blueprint for those extraordinary proceedings has come to light, and it is raising questions about the close collaboration, in the months before the raid, between the federal court in Iowa and the Iowa prosecutors who pressed the charges,” the article went on to say.

 

LAWYERS HAD TO FOLLOW SCRIPTS

 

The blueprint referred to in the article was a 117-page handbook of “scripts,” laying out step by step the hearings that would come after the raid, as well as samples of the guilty pleas that prosecutors planned to offer the workers.

 

“These were basically guilty plea handbooks, and contained a series of waivers of various rights of the defendants,” Rockne Cole, a defense lawyer who was present, told the New York Times. “The entire process seemed designed for fast-track guilty pleas.” 

 

Cole was one of the two dozen attorneys hastily summoned by Judge Reade’s assistant to meetings at the Cedar Rapids courthouse, while the raid was underway. Once assembled, all were presented with the specially prepared handbooks.

 

Studying the scripts, Cole became convinced that the hearings had been organized not to facilitate justice but to produce guilty pleas for the prosecution. The handbooks prepared by the government were in essence a lawyer’s guide to how to get your client convicted and deported, he told the Yated, revisiting what he called a deeply troubling episode.

 

“I was there for just twenty minutes,” he said, “but I’ll never forget those scenes.”

 

“What I found most astonishing,” he told New York Times reporter Julia Preston, “is that apparently, Chief Judge Reade had already ratified these plea deals prior to one lawyer even talking to his client.”

 

In a letter he later wrote to Rep. Zoe Lofgren of the congressional subcommittee that scrutinized the raid, Cole described how he declined to take part in what he saw as sham justice and “walked out in disgust.”

 

Reade subsequently claimed in writing that she merely provided “logistical coordination” with the prosecutors. Yet, the record shows, as Rockne Cole described in the New York Times article, there was “a breathtaking level of coordination” between herself and federal prosecutors.

 

‘COLLUSION BETWEEN PROSECUTOR AND JUDGE APPALLING’

 

In a May 2008 interview with the New York Times, Judge Reade said she was surprised by how many Agriprocessors defendants had pleaded guilty rather than contest the charges. She said she had planned to spend the summer presiding over trials in those cases.

 

Her remarks hit a false note in light of what the plea scripts and fast-tracking were all too obviously designed to accomplish – and succeeded in doing with stunning efficiency.

 

According to AILA’s Charles Kuck, “The ‘Handbook’ that attorneys had to follow illustrates that railroad justice was the rule of the day. It’s clear that the Iowa federal district court was driving the train, fatally compromising its own integrity as an independent branch of government. This collusion between prosecutor and judge is appalling.”

 

Committee members at the congressional hearing, investigating the raid and its aftermath, heard a chilling description of events from attorney David Leopold, current president of AILA:  

 

“The workers impacted by the raid were essentially coerced into giving up their rights under the immigration law, such as the right to a hearing before an immigration judge and a chance to apply for relief from deportation.

 

“This scheme was accomplished by overcharging the workers and threatening them with a 2-year mandatory sentence. Here’s where the plea deals and psychological coercion came in.

 

“Faced with a plea deal of 5 months in prison and deportation, or maximum prosecution ending with a minimum 2-year sentence, these workers essentially had no choice but to waive their rights and plead guilty,” Leopold testified at the congressional hearing.

 

“The immigrants, shackled to each other in groups of 10, were efficiently packaged, convicted and sentenced to jail time. The fast-tracking system, in which up to 17 detainees were assigned to a single lawyer, amounted to a conviction and deportation assembly line.

 

“The mass use of the scripted plea bargains and waiver of rights guaranteed their immediate deportation after release, regardless of extenuating circumstances,” Leopold testified.

 

“This travesty could not have occurred without the full complicity of the federal district court for the northern district of Iowa,” noted past AILA president Kathleen Walker in an op-ed published at the time.  

 

The Postville raid-and-conviction scheme “raises deep and disturbing legal and ethical questions about the collaboration of different arms of government and the legitimacy of the convictions,” David Leopold told the Yated in a phone interview.

 

TRAMPLING OF HUMAN DIGNITY

 

As a child of Holocaust survivors who fled Germany ahead of Kristallnacht, Leopold said he doesn’t make comparisons with the Holocaust lightly.

 

“But reflecting on the military-style raid with helmeted, gun-wielding police…the mass roundup and criminalizing of peaceful, unarmed people and the trampling of human dignity…that is the comparison I couldn’t help making.” 

 

He recalled a sharply worded letter AILA wrote to Judge Reade following the raid, questioning the legality of the judicial tactics used to prosecute and convicts immigrants who, in most cases, had no clue what they were pleading to and being sentenced for.

 

“We received no direct answer from Judge Reade,” he said, other than a belittling comment that “immigration attorneys do not understand criminal justice.” 

 

Leopold noted the troubling fact that Senator Tom Harkin of Iowa nominated Stephanie Rose as the new district attorney of the Northern District of Iowa soon after the raid. Rose, whose appointment was confirmed by President Barack Obama, was third in rank in the U.S. attorney’s office at the time of the raid, and presumably participated in the kangaroo court proceedings. 

 

“What was Ms. Rose’s role in those events?” Leopold asked. “How is it that instead of a reprimand to the U.S. attorney’s office for violating norms and creating a stain on American justice, there was a promotion of one of its senior officials? The public deserves answers.”

 

The fact that the people in positions of influence and leadership are willing to simply turn the page and pretend none of this happened is not acceptable, he said.

 

PIVOTAL MEETING FOLLOWING FILING OF MOTION

 

A pivotal conference drew key supporters and activists to a meeting Sunday night in Mahwah, NJ, where Mr. Nathan Lewin explained salient facts in the Rubashkin case, the grounds for the appeal and the contents of the emergency motion.

 

He described the various possible responses to the motion by the Court, and what the defense’s counter moves would be.

 

Rabbi Pinchos Lipschutz, in his opening comments, told the assembled that the purpose of the gathering was to protect from injustice not only Sholom Mordechai Rubashkin, but all Americans. The freedom of every one of us is imperiled by federal judges who are not impartial, he said, and by prosecutors who put their careers ahead of the pursuit of justice. 

 

“We are gathered here as loyal, patriotic citizens who believe in the noble ideals on which this great country was founded,” he said. “As law-abiding citizens, we want to ensure that those who take advantage of others are justly prosecuted.  No one is above the law.

 

“As President Obama stated when he nominated Justice Kagan, we want to ensure that everyone is accorded a fair trial and a chance to defend themselves, under judges who are blessed with empathy and compassion, as well as knowledge of the law and loyalty to the constitution of the United States.”

 

Rabbi Menachem Genack, CEO of OU Kosher, addressed the gathering, stressing the importance of the Jewish community’s quest for justice for Sholom Mordechai.

 

JUSTICE…OR JUST ICE?

 

Nine months ago, the Yated ran an article titled “Justice Denied” about the travesty of justice that passed for a trial, at which Sholom Mordechai was convicted of bank fraud.

 

The article explored the evidence of Judge Reade’s bias toward Sholom Mordechai, and the fact that other defendants, scheduled to be sentenced by Reade, had filed motions for her recusal due to her over-involvement in their prosecution.

 

From the November 2009 article:

 

In one case cited by the Des Moines Register, Reade denied a motion for recusal filed on behalf of 29-year-old Karina Pilar Freund, charged with aiding and abetting undocumented immigrants at Agriprocessors.

 

Freund’s attorney, Mark Brown, argued in court documents that Reade took part in pre-raid proceedings following the ICE raid. He said that “Reade’s involvement in hiring Spanish interpreters, contacting possible defense attorneys and coordinating court proceedings calls the appearance of her impartiality into question.”

 

In her response denying the motion, Reade said she was “simply performing her official duties,” and that the defendant confuses “logistical coordination” with collusion.

 

Were trial observers at the Rubashkin trial similarly confused? Or did Reade’s “simply performing her duties” cross the line into collusion with the prosecution? As the full trial proceedings become a matter of public record, and as Sholom Mordechai’s appeal moves forward, the public will learn the truth.” 

 

Now, nine months later, that truth has finally emerged. Whether it marks a significant turning point in Sholom Mordechai’s case as so many hope and pray, and whether justice denied will become justice served, will soon be clear. 

 

LEWIN CALLS ON ASSISTANT D.A. LANNY BREUER

 

Mr. Lewin revealed at the Sunday meeting that he authored a letter to the assistant attorney general of the Criminal Division of the Department of Justice, Mr. Lanny Breuer, calling upon him to reconsider his earlier position not to get involved.

 

“Shocking evidence has come to my attention since our correspondence,” Lewin wrote. “It establishes that the sentencing judge and the U.S. attorney engaged in gross misconduct in engaging in many ex parte [one-sided] discussions into the May 2008 immigration raid on Agriprocessors.”

 

Lewin went on to describe the lapses and violations of the judicial code of conduct committed by Judge Reade. He also sharply criticized the Iowa prosecutors for unlawful conduct in failing to disclose to defense counsel Judge Reade’s deep involvement in the immigration raid and her collaboration with the prosecution.

 

He requested that Mr. Breuer’s department investigate the federal prosecutors who withheld this exculpatory information, and take appropriate disciplinary measures against them.

 

Lewin ended with a plea that the Department of Justice remedy the injustice perpetrated against Mr. Rubashkin and consent to his release from prison while the matter is being investigated.

 

The Jewish community has an important role to play at this juncture, he noted. Contacting the Department of Justice, asking for a judicial review of the Rubashkin case, reflects deep public concern about the case, which will generate significant pressure, he said.

 

In addition, plans are moving ahead for a congressional initiative, the details of which will soon be forthcoming. People will be asked to urge their congressmen to sign the initiative that will petition the Department of Justice for an investigation into the inequities of the case.

 

Among all the initiatives, Lewin told a teleconference of Jewish media reporters that prayers for siyata diShmaya are uppermost.