Some have cited discrimination and prejudice as factors contributing to what Black calls â€œa stunning indictment of prosecutorial zealâ€ in this case.
â€œAs a bearded, Chasidic Jew, Sholom Mordechai looks different and heâ€™s being treated differently,â€ argues Rabbi Menachem M. Katz of the Aleph Institute, a nonprofit organization that serves Jewish inmates. â€œNo one called him a dirty Jew or painted a swastika anywhere, but heâ€™s a stereotypical-looking Jew dealing with the justice system in a place that doesnâ€™t have Jews, in a jury pool that doesnâ€™t have Jews, in a state with very, very few Jewish residents.â€
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.
â€œTo the knowledge of all legal experts contacted, this obscure law has never before been used to prosecute anyone,â€ 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 â€œdead lawâ€ – especially when the vendors were fully paid?
â€œItâ€™s completely beside the point that they were paid,â€ Deegan argued irrationally in a written explanation justifying his call for life imprisonment. â€œThe essence of the criminal offense is the failure to timely pay them.â€
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 Deeganâ€™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.
â€œDoing so will impose a significantly longer sentence on Mr. Rubashkin than he would receive for second-degree murder, kidnapping, â€¦hijacking or providing weapons to terrorist organizations,â€ they protested.
â€œIn fact, the Governmentâ€™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,â€ the attorneys said.
Lies Block Bail for Sholom Mordechai
Attorney Nathan Lewin, commenting on the extremism driving the prosecutionâ€™s campaign against his client, said, â€œIn 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.â€
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. â€œThe defendantâ€™s intention,â€ Deegan told the judge, was to obstruct justice by helping a witness â€œdisappear.â€
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 â€œforgottenâ€ 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 Chaimâ€™s departure as though it were a conspiracy between the two men, with Sholom Mordechai paying for Ben Chaimâ€™s tickets to Israel and only then taking over his properties.
Deegan (to Sholom Mordechai, pages 45-50 of Detention Hearing Transcript): Letâ€™s talk about Sholom Ben Chaim leaving the country. You certainly knew that he was going to leave, didnâ€™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, â€œGood-bye.â€
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 agentâ€™s office that lots of [Agriprocessors] people used. It was public. I didnâ€™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. Isnâ€™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, isnâ€™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: Iâ€™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
Deeganâ€™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
This is permitted in a federal case because in the sentencing phase, the yardstick of proving a defendantâ€™s guilt â€œbeyond a shadow of a doubtâ€ no longer applies. Allegations unsupported by evidence can be used carte blanche to arrive at the â€œtotal offense picture,â€ as long as prosecutor or probation officer decides they sound credible.
In Sholom Mordechaiâ€™s case, that is exactly what is happening.
The only tool left to counter the continuing legal marauding is for Sholom Mordechaiâ€™s attorneys, in their rebuttal of the charges, to take off the gloves and to expose the prosecutionâ€™s brazen corruption. Supporters and concerned parties in increasing numbers are watching closely.
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.