As a close and longtime friend of Sholom Mordechai, Rav Weissmandl testified to his deep yiras Shomayim and trust in Hashem, his overflowing ahavas Yisroel, and his ongoing struggle to rise above the physical and spiritual wretchedness of imprisonment.
Rav Weissmandl told listeners that he is “mei’id on Reb Sholom Mordechai that no matter how bleak his situation is, he has never let go of his sensitivity to another Yid and his determination not to be defeated by his situation. “Visitors are astounded by his smile, his warmth, his conviction that Hashem will bring him home,” said Rav Weissmandl.
The program concluded with a poignant description of a recent visit with Sholom Mordechai by his son, Getzel, and the recitation of Tehillim. [See sidebar.]
NATIONALLY RECOGNIZED AUTHORITY URGES SUPPORT FOR 2255 PETITION
Professor Douglas Berman, an expert in sentencing guidelines and other legal issues, has been an outspoken advocate for justice for Sholom Mordechai since his 2009 conviction. Berman was one of the first prominent legal voices to express outrage over the 27-year sentence, keeping the case in the limelight on his popular legal blog.
On behalf of the prominent Washington Legal Foundation, Berman authored one of the six amicus curiae briefs that called on the Supreme Court to hear the Rubashkin appeal in 2011.
He denounced as a “perversion” a sentence that imprisons for decades a first-time white-collar offender who posed a threat to no one, contributed greatly to society, and was never before convicted of a crime. Even if you credit the worst allegations the government threw at him, Berman told listeners as the teleconference, the sentence is a mockery of justice and throws light on how “out of whack” the Sentencing Guidelines are.
“The Guidelines have run amok,” he said, and the Rubashkin case is “emblematic” of its worst flaws.
Berman expressed his belief that although it is difficult to undo a sentence that has been affirmed on appeal, the 2255 motion, in which the court is asked to vacate the judgment, to re-sentence the defendant or to grant a new trial, is a unique opportunity to right the deep injustices in this case.
He urged listeners and the community at large to support the legal initiative, possibly the final legal avenue for justice for Sholom Mordechai. “It’s an uphill battle, but one worth fighting and I believe it has a decent chance,” he said. “Your voices, your energy and caring are invaluable.
“I could easily speak for hours about the elements of injustice in this case… the rush to judgment and the severity of judgment that is out of all proportion to what fairness would dictate,” Berman said.
“I’m proud to be working with an excellent team of advocates that will use the best possible strategies to highlight this reality for the court in the most effective way.”
SEEKING AN IMPARTIAL JUDGE
In a phone interview with Yated, the legal scholar explained that while the 2255 motion must be filed with the trial judge- Judge Linda Reade – part of the defense’s endeavor would be to petition for a review of the case before a different, impartial judge.
“Although Judge Reade has the authority to deny this petition, and getting caught with one’s hand in the cookie jar might well galvanize a knee-jerk denial,” Berman said, “it’s likely that with strong new evidence of judicial partiality, a summary denial of the petition would simply not stand on appeal.”
True, the 8th Circuit denied the Rubashkin appeal, but this would be a very different scenario, the legal expert said. “I would surprise me if a flat-out denial of the petition, despite potent new evidence, would prevail.”
Key to success of the 2255 petition, Berman said, is the documentation and evidence that will hopefully be obtained though the FOIA lawsuit.
Experts say that 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 is usually not permitted to be raised in a Sec. 2255 motion, but an exception to this rule – of keen 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 light of the ongoing effort to obtain, through a sweeping FOIA lawsuit, classified documents from the FBI and other federal agencies that took part in the 2008 raid of Agriprocessors.
In contrast to a previous limited FOIA motion, the current lawsuit addresses the Washington “parent” agencies instead of the Iowa state regional offices, with 40 paragraphs detailing the fullest possible range of information.
After more than a year of delays and foot-dragging by the government, all plaintiff motions and government countermotions have finally been filed in a Washington, D.C., court.
FOIA JUDGE READY TO MOVE
Last week, the FOIA judge instructed both sides to file a status brief, listing and clarifying the various motions that have been filed, after which she will either issue a summary ruling or grant a hearing for oral arguments.
The ruling will determine whether the federal agencies are forced to turn over significant documents, from which new evidence that may be crucial to Sholom Mordechai’s fate may surface.
The judge’s order to prepare a “status brief” came shortly after the Rubashkin team filed a supplemental brief describing the recent Stephanie Rose scandal.
Rose is a federal judge in Iowa who has come under fire in the media for conducting ex parte communications with prosecutors, trying to intimidate and railroad them into doing her bidding in order to drive up prison sentences for various defendants.
According to a Des Moines Register article, she was castigated in a lawsuit for manipulating a trial in which she acted as a prosecutor, calling a witness and eliciting damaging testimony.
The Rubashkin attorneys in the supplemental brief to the FOIA judge quote news reports about the outrage of a federal judge acting as “prosecutor in chief” with regard to ex parte communications with prosecutors and claiming it was just harmless “generic contacts.”
The brief says the Rose scandal shows that “this misconduct was and is the norm in the Northern District of Iowa” and that Rose was likely “emulating” her mentor, Chief Judge Linda Reade.
At the time of the 2008 ICE raid, Rose was an assistant U.S. Attorney in the Iowa’s Northern District, the third highest ranking official in the U.S Attorney’s office. We now know that ex parte communications were taking place between her office and Judge Reade in the months leading up to the raid and its culmination – the arrest and trial of Sholom Mordechai.
It’s reasonable to assume, based on Rose’s much criticized conduct today, that as a top official in the U.S. Attorney’s office, she was involved in those secret communications with Reade.
Based in part on that collusion, the brief argues, a man was locked away for 27 years. Sholom Mordechai is entitled to see what the hidden record shows and to use whatever disclosures are relevant in his final legal bid for justice.
My dear brothers and sisters, thank you for joining us tonight.
Just over three and a half years ago, the friends and family of Sholom Rubashkin gathered in a courtroom in South Dakota to hear the verdict in his federal trial. Believe me when I tell you that we were expecting a complete vindication. Instead, we sat numbly for an eternity as the jury ruled “guilty” 86 times.
My sister turned to me and asked, “Do you think they’ll arrest him right away?” I said no. Remember, this was a time when news outlets were gleefully calculating how many hundreds of years a guilty verdict would mean. I could not fathom the depths of cruelty that would deny a husband and father a few days with his family before putting him in a cage for the rest of his life.
Almost before the jury finished reciting their verdict, the prosecutor was on his feet insisting my father be immediately imprisoned. He was taken from that room in handcuffs by his jailers.
As we sat in the family van for the long ride back to Iowa, my head and heart spinning. I struggled with how to react to this catastrophe.
My thoughts turned to my father. I thought of his unshakeable faith. I thought of his sad but defiant smile, and the shouted words of encouragement as he was taken from that courtroom. I turned to my father, and I saw a man who had turned to his Father, to our Father.
He recognized that everything that was happening was Hashem’s will. He was not at the mercy of any system or power, but in the Hands of a loving Father. He trusted his Father and he didn’t despair. And that comforted me. His strength comforted me. If he was unshaken, I was unshaken.
It is not only sympathy or outrage that has made him a household name in Jewish homes across the world. It is the inspiration and encouragement he radiates.
We are scattered across the globe, facing physical threats we have so often faced before, and spiritual threats we have never faced before. Against the backdrop of these dramatic national crises, we each have our own challenges, our own personal crises.
In our moments of confusion, we can turn to my father and learn how a Yid should react in moments of crisis by turning to our father, to Hakadosh Boruch Hu. In this way, we can regain our balance, our clarity, and the internal peace and strength to rise above our crisis.
The Rayatz, Rav Yosef Yitzchok of Lubavitch, who was imprisoned and exiled in Communist Russia, stood on the train platform on his way to a far-flung town where he was to be exiled and addressed the crowd of Chassidim who had come to see him off.
In the presence of his Soviet captors, he insisted that while our bodies were sent into golus to be ruled over by the nations of the world, our neshamos remained free. No one can disrupt our connection to Hashem or interfere with our devotion to Him.
My father is truly in a golus betoch golus, exile within a deeper exile. Our limited time will not allow me to paint the full picture of the physical hardships and isolation he endures, so let me instead tell you one small story.
My brother Moishy was also visiting my father when I was last there. Moishy is 20 years old and autistic. He has difficulty communicating, but he has a powerful loving connection with my father that he tries to express when he goes for a visit at the prison.
I was sitting next to my father and talking when Moishy blurted out, “Love Tatty kisses!” I jumped up to give him my place, and he sat down next to my father. Beaming, he began listing all the things he had recently done that he thought my father would be proud of: “Tefillin! Slept! Washed dishes!” he rattled off, smiling from ear to ear as my father showered him with kisses.
One of the guards called out, “Rubashkin!” and sternly motioned for my father to come over.
When my father returned, he told us why he had been summoned. He had broken the rules by kissing his son more than once. “The rule,” the guard informed him, “is one appropriate kiss.”
Despite the imprisonment of his body and being torn from his loved ones, we see the awesome freedom of my father’s neshamah. His stubborn emunah, his unshakeable simcha and love of Hashem, his uncompromising dedication to Hashem. Behind steel fences and barbed wire, in a seven-foot cell, he is a true ben chorin, a free man.
The Baal HaTanya tells us that when we rise above our nisyonos, our crises, they have served their purpose and they are resolved. We will hear good news and we will all celebrate together. It is up to us to do everything we can to make this joyous occasion happen even sooner.
In my moment of confusion, I turned to my father and drew strength from his example. Let us together learn from his example and together turn to our father, Hakadosh Boruch Hu, and make an appeal to the true Supreme Court.