The appeal will focus on a range of prosecutorial and judicial errors that deprived Sholom Mordechai of a fair trial, lead appellate lawyer Nathan Lewin said in press teleconference. He and co-counsel Guy Cook called the conference to respond to questions about the just-announced prison sentence, and to notify the public of the appeal being immediately filed.
Offering a concise review of the case, the attorneys noted the government’s publicity stunts in the ICE raid, and the use of rampant exaggeration and fabricated charges in the affidavit, aimed at manipulating public opinion against Sholom Mordechai.
When the immigration case morphed into a bank fraud trial, the same strategy prevailed, with loaded terms such as “orchestrated a massive fraud,” “stealing” and “money-laundering” misrepresenting the facts and misleading the jury.
Separating fact from fantasy, Lewin explained that AgriProcessors borrowed more money than it was entitled to borrow by inflating its collateral. The credit line it took out from the lender bank, however, was fully legal and legitimately obtained. The loan agreement paid off richly for the bank. Interest payments by the time of the ICE raid had already totaled $21 million.
In five more years, the bank‘s profit from the loan would have totaled $35 million, noted Guy Cook, who was the lead attorney in the bank fraud trial and is working with Lewin on the appeal. Would someone out to defraud a bank have kept up a timely and full record of extravagant interest payments over so many years?
Cook assailed the dishonest tactics by which prosecutors artificially inflated the number of charges, making it easy to win a conviction. He described the government’s strategy as “pursuing publicity over justice.”
He told reporters on the conference line that the trial was tainted by its focus on immigration violations which were supposed to be inadmissible at the federal trial. Nevertheless, prosecutors were allowed to hijack the proceedings with immigration testimony for two days, while the defendant was prevented from defending himself.
Inundating the jury with barred, highly prejudicial testimony proved to be a winning strategy, all but guaranteeing a guilty verdict.
Money-laundering charges should have been dropped from the trial, Cook asserted, once it was established that no personal profit or gain accrued from the temporary detouring of funds. Yet the charges not only remained but were used by Judge Read to radically hike up the prison sentence.
VICTIMS OF GOVERNMENT DISCRIMINATION
Lewin noted that government conduct had forced Agriprocessors into bankruptcy and was therefore responsible for its default on the bank loan. Then, by threatening prospective buyers of the plant with forfeiture, the U.S. attorney’s office caused the devaluation of the slaughterhouse, at which point its sale could no longer recoup the bank’s collateral.
Serious bidders were forced out of the picture by the Assistant Iowa Attorney General’s injunction against the hiring of any Rubashkin as part of a new management. That injunction came to be called the “no-Rubashkin edict.” Barred from working with the experts in the kosher slaughter industry, investors withdrew their bids.
Although government witnesses on the stand, particularly the trustee attorney, Ms. Paula Roby, denied the “no-Rubashkin edict,” the would-be buyers themselves affirmed it under oath. One of them, Yechiel Cohen from Minneapolis, testified to being threatened by Assistant U.S. Attorney Richard Murphy with government forfeiture were her to retain a Rubashkin family member in the managerial structure after purchase.
Lewin said the exclusion of all Rubashkin family members from the new management of the plant was unlawful. “It’s no different than if the government would have singled out for exclusion all African-Americans, or Catholics or any other group. It’s discriminatory and illegal.”
A JUDGE’S AGENDA
Many have expressed concern that Reade had a specific agenda in Sholom Mordechai’s case, due to the prominent role she had played in the ICE raid by clearing judicial hurdles ahead of the law enforcement action.
According to a New York Times report, Reade had spent the winter of 2007 preparing the plea bargains and jail sentences for undocumented workers who would be arrested ten months later in the ICE raid. Such activities smack of collusion between the judicial branch and law enforcement, and should have disqualified Reade from presiding over the sentencing of these defendants.
The law allows a defendant to call for a judge’s recusal [self-disqualification], when there are grounds to suspect the judge has lost impartiality. But Reade had turned down a number of such recusal-requests by Agriprocessors defendants, saying that there was a difference between cooperation and collusion, and that she knew how to draw the line.
Her “cooperation” with law enforcement before and after the raid seemed to have given her a vested interest in presiding over Sholom Mordechai’s case. To call for her recusal would be fruitless–even counterproductive. At the time it was deemed prudent to avoid antagonizing this judge, renowned for her overbearing and highhanded treatment of lawyers and defendants she doesn’t like.
There must surely have been moments during the trial, and afterward, when bail was groundlessly denied Sholom Mordechai, when one might have wished to turn the clock back and file that motion for recusal. No doubt it would have been refused, but the request itself might have carried weight in an appeal.
THUMBING HER NOSE AT THE EXPERTS
In retrospect, Reade’s denial of bail foreshadowed the unconscionably harsh sentence handed down this week. But 27 years of imprisonment for “paper” crimes–victimless ones at that–is so beyond the pale, even those who expected the worst from her were shocked.
Prosecutors had backed off from seeking a life sentence after being assailed by six former attorneys general, two former solicitor generals and a host of distinguished law professors. These legal experts had written letters to Judge Reade, expressing harsh criticism of what they viewed as a grossly disproportionate sentence that undermined the fundamental principles of American justice.
Undeterred, Reade thumbed her nose at these eminent legal authorities, justifying her outrageous decision in a memorandum conspicuous for its disregard for the truth.
What kind of mentality defends the locking up of a kindhearted human being for life for comparatively minor offenses”? Perhaps Reade’s 52-page Sentencing Order can enlighten us.
GUIDELINES TREATED AS THE BIBLE
The document opens a window into a shuttered mind governed by rigid fealty to the Federal Sentencing Guidelines, and undisguised bias toward the defendant.
Although the Guidelines are meant to be used as an advisory framework for working out a fair sentence, for Reade they carry near-biblical authority. Her Sentencing Order is filled with copious quotes from her “bible”, in which she attempts to justify the outrageous ramping up Sholom Mordechai’s prison sentence by referencing this or that “chapter and verse”.
Tellingly, the only instances where Reade deviates from this framework are when the Guidelines call for leniency due to mitigating factors, such as a defendant’s record of community service, or a sick or disabled family member who deeply needs him.
Although both of these mitigating factors clearly apply in Sholom Mordechai’s case, Reade refused to consider them in the Sentencing Order.
Perhaps most disturbing is this judge’s heavy-handed and blatant siding with the government’s position over charges that were never brought up at trial, and are often nothing more than rumor or hearsay. Like a bull in a china shop, Reade rides roughshod over the very notion of balance, justice and fairness. Her animus against the defendant reeks from the document.
“The Court [meaning Reade, herself] chose to credit the government and discredit the defendant,” she repeatedly asserts, often brushing aside airtight evidence that overturns the government’s claims.
The most flagrant example of this willful denial of the truth comes in the following paragraphs:
”Defendant argued that, in the Bankruptcy, the government took the position and presented testimony that no purchaser of Agriprocessors could have any involvement with Defendant or Defendants family, resulting in a depressed sale price of Agriprocessors.
“However, the attorney for the Trustee in the Bankruptcy Action, Paula Roby, testified that there was no such condition attached to the sale of Agriprocessors. The court credits Roby’s testimony and discredits testimony from Defendant’s witnesses.
“Accordingly, the court declines to consider this theory in arriving at an actual loss calculation.”
ON DANGEROUS GROUND
Anyone familiar with the case knows that Reade is on dangerous ground here. In order to prop up her 27 year sentence, Reade needs to hang onto the myth of the bank’s $26 million loss, allegedly caused by Sholom Mordechai’s “massive fraud scheme.” Such a high loss ramps up the offense level according to the Guidelines, justifying an extraordinarily long prison sentence.
But as noted above, the government’s “no-Rubashkin edict” is what drastically devalued the plant, making it impossible for the bank to recoup its collateral. The sworn testimony from investors and would be purchasers establish this beyond any doubt.
According to the facts, Sholom Mordechai could not possibly have foreseen or orchestrated this bank’s $26 million loss. How inconvenient for Reade. How inconvenient for the U.S. attorney. These disclosures, which first emerged at the sentencing hearing, threatened to collapse an important lynchpin to the government’s case.
Without the $26 million bank loss to lay at Sholom Mordechai’s doorstep, the loss calculation plunges dramatically. Sholom Mordechai would face no more than a few years in jail under these revised numbers.
Well, not to worry folks. If you’re Judge Reade, it doesn’t matter if your thinking flies in the face of reason and sanity. It doesn’t matter if your decision turns justice on its head and disgraces your office. You can get away with it. Honorable Judge Reade will simply brazen it through.
“The court credits Roby’s testimony and discredits testimony from Defendant’s witnesses. Accordingly, the court declines to consider this theory in arriving at an actual loss calculation.”
And that’s that. Or is it?
THE LIGHT AT THE END OF THE TUNNEL
In a thoughtful comment during an interview with Yated, Defense Attorney Montgomery Brown evoked the broader implications of Sholom Mordechai’s recent state acquittal. He referred to the child-labor case as “a morality play,” a term given to a type of drama that depicts man’s struggle against the forces of evil.
“Mr. Rubashkin’s management decisions were not really on trial,” said Brown. “His humanity was on trial. The not-guilty verdicts vindicated him as human being. No one can take that away from him. While his detractors can roll around in institutional failures of Agriprocessors until the cows come home, no one can change the plays’ ending.”
Will Sholom Mordechai Rubashkin, scapegoated and tormented, sentenced by a human relic from the dark ages to rot in jail for 27 years, ever be truly vindicated?
Those who attended or listened in to the inspirational addresses at the Monday night rally heard a resounding answer. They heard Getzel Rubashkin giving voice to his family’s unyielding faith that light and darkness, beauty and ugliness, pain and pleasantness, all come from a single source–Hashem.
They heard him talk about the plaguing questions, the searing pain of waiting for his father’s release. The desperately-awaited homecoming. The end to the nightmare. And the inner voice that affirms the answer: We have a great Father in Heaven whom we love and trust. And Who loves us even more than we love Him. He knows what is best.
“There is real evil in the world and for those without faith, it’s terribly frightening. But as painful as it is, we’re not shaken. We’re not frantic. We’re not lost.
“The light is not at the end of the tunnel,” Getzel said. “it’s right here, it’s in the eyes of those of you who are standing here tonight, shoulder to shoulder, in achdus and ahavas Yisroel. It’s the sparkle and the beauty and the hope and the rock-bottom faith, in the midst of the pain.”