The Judicial Persecution of Sholom Rubashkin

On June 4, the government is scheduled to respond to petitions for a writ of certiorari in the case of Sholom Rubashkin. It’s a writ that should clearly be granted by the Supreme Court.

In 2008, a kosher Iowa processing plant, Agriprocessors, owned by Rubashkin, found out that it was to be raided by the Immigration and Customs Enforcement Agency (ICE) over its hiring practices. Agriprocessors quickly contacted ICE and tried to work out a cooperative arrangement to move into compliance with employment law. Instead, on May 12, 2008, ICE raided the factory with 600 agents clad in riot gear, plus a Blackhawk helicopter. In October 2008, Rubashkin was arrested for hiring illegals.

There was only one problem: ICE had undercut its own case. In fact, an ICE agent had posed as an illegal alien and attempted to get a job with Rubashkin, and had been turned down for lack of identification.

So the Department of Justice hit upon a solution: they charged him with bank fraud. Rubashkin was then denied bail because the prosecution argued that he would undoubtedly flee to Israel. This was nonsense. Rubashkin had 10 children, including one with severe autism. He never lived a day in his life in Israel; he was a born and raised American citizen. This was pure conjecture, and borderline anti-Semitic conjecture at that. Eventually, after over two months, Rubashkin was able to post bail. He didn’t flee.

Rubashkin was convicted on the bank charges. Initially, the state of Iowa also charged him with 9,311 offenses with regard to labor law; he was acquitted on all of them.

Left almost empty-handed, the DOJ pushed for a life sentence on the financial charges. The government eventually knocked that down to 25 years. The judge in the case instead imposed 27 years.

As it turns out, the judge herself had been involved in planning the raid, and even met with ICE agents to consider “charging strategies, numbers of anticipated arrests and prosecutions, logistics, the movement of detainees, and other issues.” She even said that she wanted to “support the operation in any way possible, to include staffing and scheduling.” The judge said nothing about this relationship during the trial or upon sentencing. That information pertaining to the extent of her involvement only came out after trial. When Rubashkin appealed on that basis, the appeal was rejected by the Eighth Circuit Court of Appeals, which said that new evidence going to the impartiality of the judge was not cause for a new trial under the Federal Rules of Criminal Procedure.

50 Congresspeople, six former Attorneys General (ranging from Ed Meese to Janet Reno), more than 80 federal judges and senior Department of Justice officials including Larry Thompson and Kenneth Starr support Rubashkin’s case for leniency.

“I don’t know whether it was anti-Semitism or anti-Easternism or anti-New Yorkism or anti-outsiderism, but it was anti-something. And it can’t be explained on principles of justice,” said Harvard Law professor Alan Dershowitz.

On Friday, six amicus briefs were filed on behalf of Rubashkin. They included briefs from former Solicitor General Seth Waxman, joined by 86 former DOJ officials and federal judges; the National Association of Criminal Defense Lawyers; The Washington Legal Foundation; The Association of Professional Responsibility Lawyers; an amicus brief from 40 legal ethics professors; and one from the Justice Fellowship.

The open legal question is whether the new evidence uncovered – which goes to the fairness of the trial rather than newly uncovered evidence that cuts toward acquittal in the case itself – should be allowed to restart the process. The answer should clearly be yes. If we are to uphold the notion that justice is impartial, preventing a rehearing of a case based on judicial bias would be ridiculous. Beyond that, the sentence itself here is ludicrous – sex offenders in Iowa routinely serve less time than this.

Moreover, American jurisprudence is based on the concept of every citizen being afforded the right to a fair trial. Rubashkin didn’t get one because the judge was in cahoots with the prosecutors, and he didn’t know that to protest at trial because she didn’t disclose it. His writ of certiorari should be granted because the Supreme Court should see to it that every American receives the rights they are promised by the Constitution and which fairness dictates.