Tuesday, Jun 25, 2024

Trial Transcript Reveals Web of Lies

Part Two As Sholom Mordechai Rubashkin sits in an Iowa jail awaiting a possible life sentence, a strong grassroots effort has ramped up protests against what is now commonly recognized as an excessively harsh prosecution bordering on fanaticism. Articles and editorials in both Jewish and secular publications have questioned the government's calling for the most severe punishment imaginable, for a non-violent offense by a person with no prior criminal history. A petition carrying over 28,000 signatures representing a cross-section of concerned citizens, as well as many people from other countries, have urged Iowa U.S. Attorney Stephanie Rose to ensure fairness and justice for Sholom Mordechai. Most recently, a kol korei on behalf of Sholom Mordechai signed by gedolim from all sects of Klal Yisroel exhorted the Jewish community to be proactive, to protest the disproportionate severity meted out to Sholom Mordechai and to demand a fair sentence. With the wider Jewish community finally waking up to the travesty of justice now playing out in the final stages, the comments of historian Edwin Black, in an op-ed regarding the Rubashkin case published on The Cutting Edge site, are sobering. “By some appearances, it seems as though many in the Jewish community have maintained a stance either of silence or stern condemnation. That very quiet abandonment may have tacitly green-lighted prosecutors that co-religionists would not speak up in face of excessive action,” Black mused.

Some have cited discrimination and prejudice as factors contributing to what Black calls “a stunning indictment of prosecutorial zeal” in this case.


“As a bearded, Chasidic Jew, Sholom Mordechai looks different and he’s being treated differently,” argues Rabbi Menachem M. Katz of the Aleph Institute, a nonprofit organization that serves Jewish inmates. “No one called him a dirty Jew or painted a swastika anywhere, but he’s a stereotypical-looking Jew dealing with the justice system in a place that doesn’t have Jews, in a jury pool that doesn’t have Jews, in a state with very, very few Jewish residents.”


As an example of prosecutorial excess, Black cited a recent article in the Des Moines Register that quoted District Attorney Peter Deegan condemning Sholom Mordechai for his failure to pay some cattle suppliers in the required 24-hour time frame as required by law – although they were indeed paid.


“To the knowledge of all legal experts contacted, this obscure law has never before been used to prosecute anyone,” Black noted. Why was it fished out of obscurity and used to convict Rubashkin? 


Furthermore, why should a man go to jail for running afoul of a “dead law” – especially when the vendors were fully paid?


“It’s completely beside the point that they were paid,” Deegan argued irrationally in a written explanation justifying his call for life imprisonment. “The essence of the criminal offense is the failure to timely pay them.”


With his bizarre insistence on adding extra years in prison for the lightest of offenses for which no one else has ever been prosecuted, Deegan let his mask slip a bit further, so that the fangs actually show.


The ferocity and duplicity that have marked Deegan’s methods have drawn sharp criticism. Those familiar with the case note the vendetta-like tactics, the relentless distortion of facts, and the subversion of the truth in the pursuit of a life sentence for Sholom Mordechai.


Former Judge, US Attorney Urge Court Not To Be Bound By Federal Guidelines


In a lengthy memorandum addressed to Judge Linda Reade, former Judge Paul Cassell and former U.S. Attorney Brett  Tolman pointed out the injustice and absurdity of adhering strictly to government guidelines in the Rubashkin case, as the prosecutor and probation officer have done.


“Doing so will impose a significantly longer sentence on Mr. Rubashkin than he would receive for second-degree murder, kidnapping, …hijacking or providing weapons to terrorist organizations,” they protested.


“In fact, the Government’s guidelines calculations are so flawed that they imply that his sentence should be the same as if Mr. Rubashkin had committed first-degree murder.  Such a lengthy sentence would clearly be disproportionate to his offenses,” the attorneys said.


Lies Block Bail for Sholom Mordechai


Attorney Nathan Lewin, commenting on the extremism driving the prosecution’s campaign against his client, said, “In the almost 50 years that I have been practicing federal criminal law – first as a prosecutor and then as a defense attorney – I have never heard of, or witnessed, as vindictive, excessive, and mean-spirited a criminal prosecution as the one conducted in the Northern District of Iowa against Mr. Rubashkin.” 


He cited examples where prosecutors stooped to making false statements to the court to ensure that Sholom Mordechai would be denied pre-sentencing bail. Some of these lies have been documented in previous columns about the case.


In a typical fabrication, prosecutors told the judge that after the May 2008 Agriprocessors raid, Sholom Mordechai arranged to send a key employee, Ben Chaim, and his family, to Israel and to help them out by taking over their real estate in Iowa. “The defendant’s intention,” Deegan told the judge, was to obstruct justice by helping a witness “disappear.”


Yet, evidence in the record shows that the arrangement for Ben Chaim to return to Israel was finalized long before the May 2008 raid, and was therefore unconnected to the raid or obstruction of justice.


Prosecutor Deegan knew this, because bank employees who handled the transference of the real estate, which took place before Pesach of 2008, had been questioned by government investigators. In case Deegan had somehow “forgotten” the time frame they gave him, Sholom Mordechai himself repeated it on the witness stand during his bail hearing.


Read the actual testimony below, taken from the Detention Hearing Transcript following the trial. Although the record is clear that the transference of property took place long before the ICE raid, and Ben Chaim left the country on his own, take note of how Deegan later manages to twist the facts to make obstruction of justice part of the court record.


He does this by implicating Sholom Mordechai in Ben Chaim’s departure as though it were a conspiracy between the two men, with Sholom Mordechai paying for Ben Chaim’s tickets to Israel and only then taking over his properties.


Deegan (to Sholom Mordechai, pages 45-50 of Detention Hearing Transcript): Let’s talk about Sholom Ben Chaim leaving the country. You certainly knew that he was going to leave, didn’t you?

Sholom Mordechai: No. If you want to know exactly what I knew, I think it was Saturday (before he left). He came over to me and said, “Good-bye.”

Deegan: Bottom line, though, you know that his tickets were purchased on your credit card, right?

Sholom Mordechai: My credit card was a number in a travel agent’s office that lots of [Agriprocessors] people used. It was public. I didn’t take it out of my pocket and give it to him. 

Deegan: Prior to him leaving, you had an arrangement where you were going to take over his properties. Isn’t that correct?

Sholom Mordechai: That was not prior to his leaving. That was way before. It was not tied to his leaving.

Deegan: But after the raid, isn’t it true that you actually took over his properties?

Sholom Mordechai: Nevel Properties [a real estate company] did that.

Deegan: But you own Nevel Properties?

Sholom Mordechai: I own 50 percent.

Deegan: But this was discussed before by Shlomo Ben Chaim before he left the country, correct?

Sholom Mordechai: Way before.

Deegan: It was after the raid that you took over the properties?

Sholom Mordechai: I’m trying to explain to you: [Our arrangement] was way, way before any trouble started. It was a deal arranged long before with [bank vice president] Mike Kruckenberg in Freedom Bank.


Falsifying the Record

As if he hasn’t heard a word of this testimony, and without any evidence to counter it, Deegan later urges Judge Reade to deny bail due to Sholom Mordechai’s “efforts to obstruct justice by paying for flights out of the country for Sholom Ben Chaim and his family. And then taking over his properties.”
Obstruction of justice is not a light matter, and Deegan doesn’t hesitate to make it part of the court record where it can be later used in the sentencing phase. Then, he and the probation officer incorporate these phony charges into their memorandum. They use “obstruction of justice” to ramp up the recommended prison sentence by a number of years.

Deegan’s false representations to the court, Lewin claims, resulted in Sholom Mordechai being denied bail until his sentencing. He has now been behind bars for over 150 days since the trial verdict. Lewin has now called for a Department of Justice Criminal Division investigation of the Iowa prosecutors for misconduct.


Fighting Charges Never Brought Up In Court

Part of the sentencing phase requires Sholom Mordechai’s lawyers to respond to the charges listed by the prosecutor and probation officer in their sentencing memorandums to the judge.
What is now emerging is that a large number of the charges in these documents were never mentioned at the trial. To flesh out his pre-sentencing memorandum and ensure enough negative material to justify a life sentence, Deegan filled his memorandum with 25 pages of inflammatory charges about immigration violations – for which Sholom Mordechai was never tried in court and from which he therefore couldn’t defend himself.

This is permitted in a federal case because in the sentencing phase, the yardstick of proving a defendant’s guilt “beyond a shadow of a doubt” no longer applies. Allegations unsupported by evidence can be used carte blanche to arrive at the “total offense picture,” as long as prosecutor or probation officer decides they sound credible. 


A Circus?

The sentencing phase is where wild rumors and unproven allegations – worthless in court where they would collapse under the most minimal scrutiny – are elevated to a most important role. It is here, in the probation officer’s report, that these unproven claims can be used to justify a severe sentence if court officers so desire.

In Sholom Mordechai’s case, that is exactly what is happening.

Claims about mistreatment of workers, drug dealing and gun smuggling; money laundering, obstruction of justice, tampering with witnesses, perjury, inhumane treatment of animals, and a slew of other fantastic charges never proven or even mentioned in court have found their way into the probation officer’s report.
All this material, including stray comments, rumors and hearsay picked up in FBI investigations, was put at the probation officer’s disposal. He then cherry-picked it for the most indicting material in order to increase Sholom Mordechai’s sentence.
It’s important to remember that whether or not Sholom Mordechai was tried in court for these charges, and the very fact that all immigration charges were dropped by prosecutors, is irrelevant in the sentencing phase.

The only tool left to counter the continuing legal marauding is for Sholom Mordechai’s attorneys, in their rebuttal of the charges, to take off the gloves and to expose the prosecution’s brazen corruption. Supporters and concerned parties in increasing numbers are watching closely.

In view of the circus the case has become, whether justice department officials have singled out Sholom Mordechai for shocking and excessive punishment is no longer a matter of debate. The question is, can they get away with it?
“This is America,” observed an LA Jewish Journal columnist discussing the Rubashkin case. “There is no room for a lynch mob mentality.”

With the growing outcry about the cruel and unjust fate being planned for Sholom Mordechai, we can only hope and pray that at the end of the day, influential voices of reason and sanity will prevail.




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