Saturday, February 6, 2010

Iowa Rubashkin Trial Irregularities

It's hard to forget the raid on the Agriprocessors plant in Postville Iowa back in 2008. Helicopters swooping overhead, mass detention facilities prepared in advance made for high drama. Out of the raid grew a massive list of charges that fell into two categories, "white collar" accusations of defrauding banks and failure to repay lenders as well as immigration charges. It was a daunting list of charges.

It now turns out that the trial itself may be the greatest scandal, with irregularities that should disturb anyone who feels that the accused citizen deserves a fair trial.

What initially transfixed the nation was the laundry list of charges linked to immigration violations. Judge Linda Reade ruled that these charges could not be mentioned during the bank fraud trial, that they would have to be dealt with in a separate trial. On repeated occasions, Judge Linda Reade disregarded her own ruling and allowed immigration charges to be mentioned during the trial on financial charges.

It should be noted that the immigration charges were shaky at best. At one point, the FBI sent in someone with bogus papers. Twice the person was rejected by the Human Resources department at Agriprocessors. Eventually, the person was hired, only when they had "genuine" documents that were supplied by the FBI that met the legal standard required of employers. The Des Moines Register reported as follows.

"Fischels told jurors that the informant, “S.A. 007,” first applied to work at Agriprocessors on Nov. 8, 2007. The informant — who, like many workers, was Hispanic — entered the plant wearing a hidden recorder and transmitter, Fischels said. Plant managers rejected the worker because his Social Security and resident alien cards were clearly fraudulent, he said.

The informant applied again on Dec. 11, 2007, and was once more rejected, Fischels testified.

Agents then furnished the informant with legitimate documents from a forensic laboratory in Washington, D.C., Fischels said. The informant was hired in January 2008, and provided authorities with information about happenings inside the plant, Fischels testified."

There were other irregularities as well. A judge is supposed to be impartial, with no connections to either side of a case being heard. Judge Reade, who presided over the trial of Shalom Rubashkin authorised and assisted in the logistics of extracting pleas from groups of defendants, as reported by the American Immigration Lawyers Association website.

The WFC Courier web site notes as follows Judge Reade's involvement in drafting time sensitive plea bargains and depriving defendants of effective counsel.

"Some of the charges leveled against the federal government include: Denying adequate legal representation by assigning as many as 17 defendants to an attorney; the breakdown of separation of powers when Chief Judge Linda R. Reade participated in ex-parte communications by approving plea agreements and moving the court an hour north to Waterloo without the defense's knowledge; and the use of aggressive plea agreements that expired after seven days.

The tactics have made a huge splash in the legal community nationwide. A judicial clerk for Reade, the presiding judge in the Agriprocessors criminal proceedings, authored a law review article entitled, "Butchering Statutes: The Postville Raid and the Misinterpretation of Federal Law." In it, Peter Moyers argues federal prosecutors misused the criminal identity theft and judicial removal laws that made the speedy mass prosecutions possible.

In February, the U.S. Supreme Court heard arguments in a case about the use of criminal identity theft charges against undocumented workers who don't knowingly steal identities because they don't know if their Social Security numbers are fake or belong to another person. The case originated in the Southern District of Iowa."

Linda Reade was involved in the logistics of the immigration raid that found Shalom Rubashkin charged with immigration violations over which she later sat in judgement. She made arrangements to extract guilty pleas from illegal immigrants involved in the case in an assembly line fashion. How could she subsequently have remained unbiased when presiding over Rubashkin's trial? Had she not dismissed the immigration charges, these troubling questions would surely have been aired.

The defense in Shalom Rubashkin's trial had a daunting task in conforming with Judge Reade's rules excluding the mention of a laundry list of topics. Perfidy in Iowa, a compilation of articles dealing with the Rubashkin trial mentions one such surreally absurd exchange during the Shalom Rubashkin trial.

"The suppression of other important testimony had the effect of straightjacketing
the defense. It cleared the way for the prosecution to paint Reb Shalom Mordechai as a conniving law-breaker who enriched himself and his family by defrauding the bank and exploiting the immigrants in his employment.

Witnesses came forward to challenge this image, but jurors were instructed by Reade to leave the room while they spoke. The witnesses recounted examples of Reb Shalom Mordechai’s unusual humanitarianism and acts of kindness toward Jew and non-Jew alike. They testified to his stainless reputation in his own community and far beyond as a man of his word, honorable and trustworthy in business.

Even when attorneys argued that the above testimony was important in disproving money-laundering allegations, or to dispel insinuations that Reb Shalom Mordechai lived a lavish lifestyle by misappropriating funds, Judge Reade rigidly imposed her restrictions.

At various points in the trial, the hamstringing of the defense reached the point of absurdity. A prosecution witness testifi ed that she was often asked by Reb Shalom Mordechai to drive her and his son to meetings. Prosecution attorneys insinuated that the defendant and his son were engaged in clandestine activity at the office and therefore preferred not to have the family’s car in the parking lot.

During cross-examination, the witness admitted that when Reb Shalom Mordechai needed a lift, it was usually because he had put his car at the disposal of one or other of the many visitors who found their way to his Postville address, seeking help. As for the son who accompanied his father to the “secret” meetings, “Are you aware that the defendant’s son, Moishe, is a special needs autistic child?” Cook asked the witness. “Objection!” the prosecutor exclaimed. “Sustained!” snapped the judge, sharply admonishing Cook for mentioning the forbidden topic of the autistic Moshe."

Moishe, Shalom's son was on the list of forbidden topics. Reade decided that mentioning Moishe's autism would elicit unfair sympathy from the jury. Yet in discussing attendance at a business meeting that was being examined in a court of law, it was necessary to mention all present at the meeting. It had to be established that Moishe was a non participant in the meeting, that he was incapable of taking part in the proceedings or even understanding them. Why was that not clear to Judge Reade? Why is it that the prosecution had free rein to paint a picture of Shalom Rubashkin's motives, character and lifestyle yet the jury was banned from hearing information that might contradict that betrayal?"

A critical defense in the Rubashkin trial was that the bank chose not to examine figures presented by Agriprocessors, that the bank and Agriprocessors had a productive relationship in which interest was paid on time. Yet again, Judge Reade stepped in and prevented the Jury from hearing expert testimony. Again, Perfidy in Iowa notes as follows.

"Working pro bono, Roth came to Sioux Falls of his own volition, prepared to demonstrate to the judge and jury a fact vital to the defense: that it was virtually impossible that the bank was unaware that some of the paperwork submitted by Agriprocessors contained inflated numbers.
The discrepancies were too glaring to go unnoticed, Roth stated, indicating that the bank was complicit with the infl ated sales numbers; due to the immense profits it reaped from the credit it extended Agriprocessors.

Roth never did get to present his findings to the jury. In one of many rulings that smacked of one-sidedness, Judge Reade ruled in pre-trial discussions that Roth’s testimony was inadmissible, since it represented his “opinion,” as opposed to “evidence."

I could understand a prosecutor making such an assertion about a defense witness. But for a judge to make such an assertion and to so heavily censor what is presented to the jury is both prejudicial to the defense and insulting to the jury. Numerous witnesses, such as a hog farmer who lost all his livestock and was helped by Shalom Rubashkin as well as numerous indigent Jews and gentiles who received generous help were excluded from testifying.

Even the government's star witness was shredded on the stand. That exchange, in which Shalom Rubashkin's alleged money laundering was discussed, went as follows. (Perfidy page 71)

Bensasson testified against Reb Shalom Mordechai, his former boss and close friend. He said that Reb Shalom Mordechai orchestrated the fake invoices, and that instead of sending bank payments directly to the lender the money, depositing it in the grocery store or the community yeshiva, which Agriprocessors owned. The prosecutioncalled this “money-laundering,” insinuating that Reb Shalom Mordechai withdrew this money for his own use. Guy Cook challenged this charge while cross-examining Bensasson.

Cook: To your knowledge, did Shalom siphon off money from these funds for his personal use?

Bensasson: No, sir.

Cook: Are you aware of any outside bank accounts to which he re-routed any of it?

Bensasson: I am not.

Cook: Granted that the money was rerouted for a couple of days, didn’t every penny of it ultimately reach the bank?

Bensasson: Yes."

There were other witnesses who testified that Shalom was disorganised, and that most of what appeared to be irregular was simply due to lack of professional training. Such testimony was also excluded.

Evidence cropped up during the trial that witnesses were coached and coerced. One witness admitted under cross examination that he was threatened with deportation if he did not do as he was told by prosecutors. Another witness named April Hamilton stated as follows.

“I was told to speak only about Shalom Rubashkin, and to say nothing that would implicate anyone else,” she admitted under cross examination.(Perfidy in Iowa p72)

Is that not distorting testimony? What ever happened to telling the whole truth and not suppressing evidence?

The implications of the Rubashkin trial for the average citizen are chilling. In repeated instances, Judge Reade excluded evidence that would have been exculpatory or favourable to the defendant. She had a prior role in the immigration raid that led to Shalom Rubashkin standing before her in judgement. She even helped draft plea bargains designed for use in assembly line justice in which bewildered defendants in the same case were given inadequate counsel.

Based on this trial which was riddled with irregularities, Shalom Rubashkin is facing the prospect of the rest of his life in jail. The precedent this trial sets for anyone facing a federal trial in the future are chilling. If this verdict is allowed to stand, a judge will be able to disregard his or her own rulings when it serves the case of the prosecution. The judge will be able to cherry pick evidence and blindfold the jury when that would aid the cause of securing a conviction.

Our judicial system operates on a system of precedents. if the rampant and systematic irregularities that riddled the trial of Shalom Rubashkin are allowed to stand, it will be a dark day for American jurisprudence and for the American people. Shalom Rubashkin's guilty verdict should be overturned. Justice demands it. And we should as well.

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