New evidence in court papers tracing the egregious misconduct of federal prosecutors who sent Sholom Mordechai Rubashkin to prison for 27 years is impacting public opinion about the case.
In a sign of shifting attitudes, the Des Moines Register ran a serious of articles and op-eds, as well as a scathing editorial by its editorial board, that harshly criticizes the government’s conduct in the case.
The editorial coincided with the filing of the government’s response to the defense’s Merits Brief, in which prosecutor Peter Deegan denied all wrongdoing, saying that defense attorneys are “trying to rewrite history.” The response brief urges Judge Reade to deny Sholom Mordechai’s appeal for a new trial, re-sentencing or a hearing for more discovery.
In a striking reversal of its former stance, the Des Moines Register’s editorial dismissed the government’s protests of innocence as “hard to swallow,” and cuts to the heart of the allegations against the prosecutors with unsparing questions.
“Did prosecutors ratchet up the losses sustained by Agriprocessors’ creditors and later use those losses to increase Rubashkin’s sentence?” the editorial board demanded. “Did they also adopt a policy of guilt-by-association in barring any member of the Rubashkin family — including people never accused of wrongdoing — from involvement in Agriprocessor’s successor?”
“The evidence indicates they did just that, which helps to explain why so many well-respected former prosecutors and judges are up in arms over their actions.”
“The U.S. Attorney’s Office must be forced to answer for their actions in USA vs. Rubashkin,” the Des Moines Register asserted.
Holding Prosecutors’ Feet To The Fire
The government’s 100-page response brief is marked by long-winded excursions into matters of little relevance to the case. It devotes the first 40 pages to laws governing forfeiture, which has nothing to do with defense claims of prosecutorial misconduct.
The defense’s core argument is very straightforward: The government is charged with causing First Bank to lose tens of millions of dollars by interfering with the sale of Agriprocessors through its no-Rubashkin edict, and then pinning responsibility for the loss on Sholom Mordechai Rubashkin to lengthen his prison sentence.
The defendant asked the government at his sentencing to turn over all possible evidence that could support this defense, as the law requires. The government denied they had ever imposed “no-Rubashkins” and turned over nothing.
Now, 7 years later, Sholom Mordechai’s attorneys found the evidence to prove his claim. The evidence proves the government misled him and misled Judge Reade, and withheld exculpatory evidence in order to ramp up his prison sentence.
In response to these charges, the prosecutors’ focus on semantics, countering in effect, “We didn’t mislead you or withhold evidence; you asked to see the ‘agreements’ we asked bidders to sign; we didn’t make them sigh any agreements. You should have asked about ‘disclosures.’ You weren’t explicit. Your fault, not ours.”
[As part of the government’s intimidation tactics, prospective buyers were informed that for years after buying the meat-packing plant they would have to make “disclosures” to the government about any connections they maintained with any member of the Rubashkin family in violation of the no-Rubashkin rule – and risk government forfeiture penalty if they did not do so. The government withheld this information from the defense.]
Faced with evidence that their star witness lied under oath, the prosecutors rationalize her actions in their response brief. They quibble about the words the defense attorney used in questioning her, accusing him of asking “imprecise” questions.
The witness, Paula Roby, was asked about the date of an initial meeting between prosecutors and prospective bidder Eli Soglowek. She claimed she didn’t remember.
The timeframe of the meeting was important because the defense claimed government harassment continually chased off potential buyers.
After having her memory jogged under cross-examination (“Did the meeting take place in January or in April?”), Roby remembered “it was before Soglowek entered his $40 million bid” (which took place on January 25, 2009).
Roby’s testimony was false. In fact, Soglowek was forced to meet with prosecutors 12 days after he made his offer, on February 12. The prosecutors’ strong-arm tactics at that meeting caused him to drop his offer, according to his sworn affidavit.
Excellent lawyering by the defense produced Roby’s “fee petitions” which show the dates for which she had billed the government for her services. The evidence supports defense claims. Roby lied about the meeting, altering the timeframe to make it appear that the buyer was happy with the meeting’s outcome and decided to move forward with his offer.
In the face of irrefutable evidence of this false testimony, the government response brief is reduced to countering that the witness did not actually lie; she was understandably “confused” by the defense’s “imprecise” line of questioning.
“Basically, what the [defense] brief shows is the defense is holding the government’s feet to the fire and it’s very, very uncomfortable,” commented a lawyer who studied the government response.
Setting the stage for the sharp reversal in the Des Moines Register’s pro-government stance was a powerful letter to U.S. Attorney Kevin Techau, signed by 107 high level former DOJ officials, FBI directors, U.S. Attorneys, politicians and law professors.
The letter condemned the prosecutors’ misconduct and abuse of power in the Rubashkin prosecution, as detailed in the explosive Merits Brief filed by Rubashkin attorneys Gary Apfel of Los Angeles and Stephen Locher of Des Moines, Iowa.
The eye-opening, hard-hitting letter by scores of legal heavyweights to U.S. Attorney Techau, while not holding him responsible for the misconduct as he was not in office at the time, exhorted him to “remedy the injustice” by granting Sholom a new trial or re-sentencing.
A follow-up article, “New Rubashkin Claims Garner Who’s Who List of Supporters” profiled ten of the most prominent signatories on the pro-Rubashkin letter, including presidential and vice presidential candidates from both parties.
Among the most respected names are also four former U.S. Attorneys General, including Michael Mukasey, who served as attorney general of the United States at the time the federal immigrant raid on Agriprocessors took place.
This article, with its “Who’s Who List” of Rubashkin supporters, was followed a few days later by another pro-Rubashkin salvo in the form of a personal letter to U.S. Attorney Techau from James Reynolds, a highly respected former U.S. Attorney in Iowa’s Northern District.
Reynolds slammed the prosecutors for their “overzealous, insidious” actions against Sholom Mordechai Rubashkin, calling on U.S. Attorney Techau to rectify the miscarriage of justice, or be “as culpable” as the perpetrators.
“Had this kind of unfair, underhanded and unnecessary misconduct occurred during my tenure, you can be absolutely certain that the perpetrators would have faced consequences, the very least of which would have been the loss of their job,” Reynolds declared.
Reynolds and another signatory to the open letter, former U.S. District Court Judge and Deputy Attorney General Charles Renfrew, took their protest to the next level by publishing an op-ed the following week in the Des Moines Register, “Prosecutors, Judges Decry Rubashkin Witch Hunt.”
“The criminal prosecution of Sholom Rubashkin was so overzealous it bordered on a veritable witch hunt,” the legal luminaries wrote. “There is new evidence of false testimony and willful manipulation that exacted the most possible punitive sentence for Rubashkin. That makes this a shocking case of prosecutorial misconduct.”
The authors demonstrate their intimate grasp of the case in a few succinct paragraphs.
“Prosecutors deliberately thwarted the prospects [of selling Agriprocessors profitably] by constructing a “No-Rubashkin” rule, which was completely illegal,” the editorial declared. “That policy was “highly effective in quashing Sholom Rubashkin’s chances for a fair sentence.”.
“The infamous No-Rubashkin rule caused a massive drop in the company’s value which made it impossible to sell it profitably so that it could repay its $27 loan to First Bank,” the authors wrote.
“Prosecutors kept turning away interested parties…manipulating the bids so that the lowest one, for $8.5 million, was the only one accepted, leaving an outstanding debt of $27 million, resulting in Rubashkin’s cruel and unjust sentence.”
Prosecutors Needed ‘A Seat At The Table’
The op-ed cited the explosive evidence in the defense brief in the form of an attorney’s handwritten transcript that the key purpose of a government meeting in 2008 was to formulate the no-Rubashkin rule.
Government witness Paula Roby, who had taken part in that meeting, was later called by the prosecution at the Rubashkin Sentencing Hearing to deny the meeting ever happened. She willingly complied. The prosecutor eliciting her denial was none other than one of the Assistant U.S. Attorneys who, at the meeting in question, had laid down the no-Rubashkin rule, court papers attest.
The prosecutors’ words uttered at that meeting are by now notorious: “No Rubashkins are very important to us – non-negotiable,” U.S. Attorney Richard Murphy said, according to notes taken by the trustee’s lawyer, James Rieland.
Asked by Paula Roby, counsel for the bankruptcy trustee, whether there were “any other non-negotiables,” Murphy reiterated, “No involvement of Rubashkins from any standpoint (control, benefit).”
“The problem is we don’t have a seat at the table,” the prosecutor complained, meaning the government lacked the authority it was seeking over the bankruptcy/auction process.
“We’re going to set that up for you,” Roby assured him, according to the Rieland transcript of the meeting.
In their response to defense claims, prosecutors contend their statements “were not threats designed to diminish the value” of Agriprocessors, but were warnings intended to alert potential buyers of the risks they’d face by associating with criminals.
Criminals? Only one member – Sholom Mordechai – had been charged with an offense.
As the Reynolds and Renfrew op-ed states, “Agriprocessors’ sole owner, Aaron Rubashkin, was never deemed culpable of any crime nor slapped with a single federal count. Yet, he [and his entire family] was effectively barred by Sholom’s prosecutors from stepping in and taking over the company or having any role whatsoever. So the possibility of Agriprocessors resurrecting itself and making good on its loan to First Bank was doomed.”
A lawyer familiar with the case pointed out that barring a family of law-abiding citizens from ownership or management of a company through a law such as “no-Rubashkins” is “unconstitutional.”
“How can you exclude a family of law-abiding citizens from employment without any grounds?” he asked rhetorically. “How is that different from kicking a family out of a neighborhood based on their race or religion? It’s discrimination.”
“With potential buyers being thwarted and intimidated at every turn, and a false witness being brought into the court to flagrantly lie…, the legal wrongdoing evident in the Rubashkin case constitutes an extraordinary miscarriage of justice,” Reynolds and Renfrew concluded in their op-ed. “These facts are sufficient to warrant speedy action.”
“As former Department of Justice officials, we call on Mr. Techau and his office to take any and all action to immediately release Sholom Rubashkin.”
Interview With Former U.S. District court judge Charles Renfrew
In an exclusive interview, Yated discussed the government’s response with one of the co-authors of the Rubashkin Witch Hunt editorial, Charles Renfrew.
Mr. Renfrew, whose public service included prominent posts as U.S. District Court Judge in California and later as a U.S. Deputy Attorney General, said he reviewed the government’s response brief and was struck by its failure to address key defense arguments.
“Specifically, they ignored evidence of the government’s use of perjured testimony in the sentencing process. Underlying their arguments seems to be the attitude, ‘Well, we don’t like this guy, he did a lot of bad things so we can do whatever we want to him whether the facts support the charges or not,’” the former U.S. Deputy Attorney General said.
“That brings to mind a famous line by former Senator Patrick Moynihan… ‘You are entitled to your own opinion but you’re not entitled to your own facts.’”
“Facts count,” Mr. Renfrew went on. “The facts are that perjured testimony was admitted into the sentencing process. But the government’s response doesn’t address the perjury and how that affected Sholom Rubashkin’s sentence. It sidesteps the whole matter as though it’s of no concern. That’s an outrage.”
He noted “the one hundred eighty degree turn” in the position of the Des Moines Register’s editorial board, commenting that it signals “increasing awareness at the grassroots level that a great miscarriage of justice was done.”
“I’m not familiar with any case that has obtained anything close to the support of so many prominent figures in the Department of Justice,” remarked the former U.S. Deputy Attorney General. “I have confidence that ultimately this miscarriage of justice will be righted and this man will return to his family.”