Rubashkin Denied “Full Court”

By Debbie Maimon

The Rubashkin appeal for an “en banc” (full court) hearing by the 8th Circuit has been denied. This denial followed the 8th Circuit’s rejection of an earlier appeal made in June before a panel of 3 judges. [Defendants who have lost an appeal before a 3-judge panel have the option of petitioning for a review by the full court.]

The appeal had presented powerful arguments showing how the 8th Circuit’s original ruling was in error and was rooted in injustice. Nevertheless, the full court rejected the appeal for a review, without a word of comment or a dissenting voice among any of the judges.

It is now on to the Supreme Court of the United States.

Perhaps the judges were encouraged by the example set by White House: despite the staggering number of Rubashkin petition-signers–52, 200–the president issued a “no-comment” response to calls for an investigation into the gross injustices in the case.

To understand why the Rubashkin petition struck a nerve in so many thousands of Americans across the country, let’s turn back the clock a couple of years to when the foundations of this shameful story were being laid.

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“We’ve got to crack down on employers who are taking advantage of undocumented workers. When you read about a meatpacking plant hiring 13-year-olds, 14-year-olds–they have these kids wielding buzz saws and cleavers–it’s ridiculous. And the only reason they are hiring these folks is because they want to avoid paying decent wages and providing decent benefits.”

Anyone remember these words? They came from then-presidential nominee Barack Obama in election year 2008, when he was campaigning in Iowa. Obama made these shocking slurs against the employers of Agriprocessors several months after the massive ICE raid took place–long before anyone at the plant had been charged with a crime.

Rubashkin-bashing was immensely popular at the time. So when it came to pandering to voters who had been incited by the vicious anti-Rubashkin rhetoric of the mass-media, Obama jumped on the bandwagon. His vicious attack on the plant’s employers for child labor and worker abuse was libelous and wholly misinformed. All the charges stemming from labor allegations were later thrown out by a jury in a state trial.

Compare Obama’s stinging attack on the Rubashkin family before any evidence had been produced and prior to any charges being made, to the president’s response a few days ago to more than 52 thousand people imploring him in a special petition to investigate the “gross injustice” in the Rubashkin case.

The administration’s response consisted of a terse brush-off: “The White House cannot comment on the matters [of law enforcement and judicial ethics] raised in this petition,” it said. These must be resolved though proper channels.

The White House went on to inform petition signers that “the Department of Justice has mechanisms in place to investigate allegations of prosecutorial misconduct, including through its Office of Professional Responsibility (OPR).
“And with respect to judicial ethics matters, claims of judicial misconduct are dealt with by the Judicial Branch,” the email stated.

In other words: The president has no intention of going out on any kind of limb to correct injustice. So what if he helped to demonize Sholom Mordechai a few years ago in order to jack up his ratings in Iowa? That’s water under the bridge. So please, all you tens of thousands of annoying Rubashkin petitioners, leave President Obama alone and take your complaints about the abuse of power to the proper channels.

“We The People:” Publicity Stunt?

The administration promised on its We The People website that all petitions that garnered the requisite number of signatures would be carefully reviewed by the appropriate policy experts.

It is hard to take that pledge seriously when the most cursory review would have uncovered the fact that 47 congressmen already took their concerns to the Department of Justice in separate correspondences with AG Holder.

The congressmen spelled out the glaring injustices in the case, urging Holder to investigate them. Holder ignored them.

Other prominent Americans also went through proper channels. Shortly after the June appeal hearing in St. Louis, 75 leading law professors and former DOJ attorneys from across the United States brilliantly outlined the evidence of judicial and prosecutorial misconduct in an 8-page letter. They sent the letter to The Office of Professional Responsibility (OPR), the very agency the White House names as the proper “mechanism” to handle complaints of wrongdoing in the Justice Department.

There has been no response to date from the OPR.

The most superficial inquiries about the Rubashkin case by the White House would surely have revealed the evidence of stonewalling and indifference from the agencies entrusted to handle serious allegations of misconduct.

Why then does the White House advise Rubashkin backers to take up their concerns with the very officials whose silence and inaction goaded 52,200 Americans to petition the White House in the first place?

The dishonesty and cynicism behind this response to the petition is deeply offensive.

Petition’s Popularity Grated On Nerves

Few were surprised by Obama’s brush-off. The petition’s sheer numbers–exceeding those of any other petition save one–were impossible to ignore. But as for expecting the administration to take meaningful action when no political capital can be gained from opening up this ominous can of worms? Not likely.

The petition’s popularity grated on others’ nerves as well. Jewish media hostile to Sholom Rubashkin such as the Forward newspaper, scrambled to explain away the petition’s runaway numbers, dismissing them as products of a “massive publicity campaign” in Orthodox circles.

A weekly publication that can take much of the credit for the destruction of Agriprocessors through its vicious mudslinging campaign in 2007, the Forward shrugged off the high-profile case as “an Orthodox Jewish cause celebre.”

Projecting the petition as exclusively an Orthodox Jewish cause and thus devoid of any overarching public significance, flies in the face of reality. Statistics show that petition-signers, whose city and state show up on the website, hail from all over the country, including states with little or no Orthodox Jewish presence, such as Idaho, Nevada, Oregon, Wyoming, Hawaii, Kansas, and North and South Carolina.

That is because the Rubashkin cause resonates deeply with countless Americans who see it as testing the heath and viability of the American justice system. They view the high profile case as highlighting the weakest links in the justice system–the vast, unchecked power of prosecutors and the culture of judicial arrogance in which federal judges abuse their power without any accountability.

Judicial Overreach A Campaign Issue?

These concerns have been reflected in recent statements by presumptive presidential nominees. Texas governor and Republican presidential candidate Rich Perry, for example, makes it no secret that he believes the many judges on the bench are guilty of “overreach,” and have acted beyond their constitutional bounds.

The problem, he says, is that members of the judiciary are “unaccountable” to the people, and their lifetime tenure gives them free license to act however they want. In a recent book, Fed Up!, the governor speaks highly of plans to limit their tenure and offers proposals about how to accomplish it. Several of his ideas fall within the realm of mainstream conservative thinking today.

The recent 8th Circuit decision to deny Sholom Mordechai’s appeal is seen by many as emblematic of the travesty of justice that flows from judicial “overreach,” and the propensity by members of the judiciary to set aside justice in favor of sticking up for their friends on the bench.

By rubberstamping the government’s vindictive prosecution and marching in total lockstep with Judge Reade’s outrageous Sentencing Order, the 8th Circuit Court of Appeals, many feel, has hurt its credibility as an institution upholding truth and justice.

To some, it seemed as though the 3-judge panel was hammering in the final nail on the Rubashkin case by denying his appeal. Far from putting the case to rest, however, the Court’s decision has fueled public’s perception that abuses of power have perpetrated a massive miscarriage of justice in the Rubashkin case.

In its written opinion, the 3-panel judge not only turned its back on the facts. It disdained the opinions of the nation’s most respected experts in judicial and legal ethics, thumbed its nose at three of the country’s most prominent legal advocacy organizations, and clashed with Supreme Court decisions.

From Obscurity To The Spotlight

It’s interesting to retrace the stages in which the perversions of justice in the Rubashkin case rose from obscurity to national attention.

Renowned legal authorities Professor Stephen Gillers and Mr. Mark Harrison, one of the key architects of the Code of Judicial Conduct, raised the case’s stature by pinpointing the abuses of power by the presiding judge and the prosecutors, in sworn affidavits filed with the 8th Circuit.

The experts studied the government and defense briefs in the case, including the FOIA documents. They stated their opinion that Reade’s secret meetings with government authorities violated legal ethics and were grounds to vacate the defendant’s conviction.

The opinions of these prestigious legal authorities boosted interest in the case in legal circles. But with the unexpected involvement of nationally respected legal advocacy groups such as ACLU, WLF and NACDL who filed amicus curiae briefs supporting Sholom Mordechai, the case began to take on national importance.

The ACLU of Iowa and the NACDL, two of the nations’ most respected legal advocacy groups, have both condemned the blurring together of the executive and judicial branches in this case.

The NACDL brief said that Reade conducted herself as an arm of the prosecution. The ACLU wrote that Sholom Rubashkin must be granted a new trial. “Due process demands it. The Constitution demands it,” the brief said.

An Operation Gone Sour

In a little-known footnote to the case, the NACDL was one of the first independent legal voices to train a spotlight on the unethical strategy federal agents used to prop up an immigration raid that was threatening to become an embarrassment to the Department of Justice.

Until federal agents discovered financial irregularities at Agriprocessors, the massive law enforcement operation, loudly denounced for its brutality and violation of human rights, appeared to be going sour.

True, almost 400 illegal immigrants had been nabbed in the ICE raid. But the government was after something much more–the arrest of a high-profile target. The federal indictment had charged Agriprocessors with multiple felonies and lurid crimes such as harboring a drug lab, storing caches of weapons at the plant, torturing workers and other crimes. The government had an arrest warrant ready but couldn’t execute it at the time of the raid, and for months afterward, because the charges turned out to be completely fabricated.

“The massive raid befitted a bust of a well-armed drug cartel,” the NACDL brief noted. But agents came away empty-handed, leaving the government open to ridicule for having invested such massive resources in the operation.

“The trial judge, who was part of the planning and pre-arrest activities” and had thus invested heavily in the operation, helped find a remedy to justify that operation “when this elaborate raid on illegal immigrants did not bear fruit,” the NACDL brief explained.

The remedy was to find another crime, pump it up into a massive indictment and pin it on one person. That created the pretext for Judge Reade to “impose a sentence of over a quarter-of-a century,” the brief concluded.

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As Sholom Mordechai and his legal team prepare to appeal to the Supreme Court, public outrage about the case continues to mount, prompted by the publicity and information-sharing triggered by the Rubashkin White House petition. “We The People” may not have upheld its pledge to “carefully review the issues raised by the petition.” But it undoubtedly triggered some valuable fallout.