As three days of strong defense testimony hammered away at the child-labor charges in the Sholom Mordechai Rubashkin state trial, the flow of information emerging from competent witnesses has begun to dispel a cloud of misinformation about the case.
It’s difficult for some to accept that a case so sensationalized could have so little foundation. Yet, indications that the child-labor charges were trumped up began surfacing even before the trial began, when the government drastically pared down its original 9,000 counts to 83.
Even this number is highly misleading. It does not reflect 83 child-laborers, as many assume. Rather, a separate count was rung up for each day the 30 so-called minors were said to have worked.
In response to defense arguments, 83 counts were further reduced to 67 by Judge Nathan Callahan, due to five of the “child-laborers” never having shown up for the trial. Callahan tossed out those charges Tuesday, shortly after the defense rested its case.
WERE MINORS EMPLOYED AT AGRIPROCESSORS?
Regarding the key charges that the defendant deliberately hired minors and exposed them to dangerous chemicals and machinery without protective gear, these allegations were overturned by nearly a dozen witnesses.
They included top-tier plant managers, an immigration attorney, a former Postville city councilman, Agri’s former rav hamachshir, various individuals who had been given comprehensive tours of the plant, and a professional interpreter who had access to Postville’s immigrant community.
Top management personnel Gary Norris, Chaim Abrams and Toby Bensasson testified that regulations about not hiring minors were strictly enforced at Agriprocessors. Abrams said that the plant had so many applicants that they turned away dozens each week; the applicant pool was so abundant that there was no need for underage workers.
In addition, he said, the risks involved in employing minors made it impractical to do so. Their performance would be inferior, causing productivity to suffer. An injured minor would not qualify for insurance. His being discovered could result in the plant losing its insurance. There was nothing to be gained and much to lose in hiring underage workers.
[Two of the government’s witnesses had inadvertently boosted the defense’s arguments with their own testimony, admitting under cross-examination that they had been refused employment when they could not produce reliable documents confirming they were over 18. One witness said he was repeatedly turned away until he procured more legitimate-looking fake documents.]
CHRONOLOGICAL AGE HARD TO MEASURE
Gary Norris said that the Guatemalan immigrants, especially women, were typically of short stature and often looked far younger than their chronological age. Conversely, some Guatemalan teenage boys had mustaches and facial hair that made them appear to be much older than their years. “As a supervisor who came into daily contact with them, there was no way I could assess their ages based on appearance,” Norris said.
Some government witnesses said that Sholom Mordechai occasionally walked through the plant and “had looked their way.” Prosecutors seem to think that this is enough to persuade the jury that the defendant could “facially” detect who was underage at such times.
But Norris said that anyone who, like Sholom Mordechai, only occasionally walked through the floor generally did not encounter workers face to face. Using a map of the plant displayed on a large screen, he showed how the rooms were structured in such a way that workers faced their assembly line or equipment, with the walkway behind them.
In addition, Norris said, workers were usually bundled in sweaters due to the refrigerated temperatures. They were cloaked in steel hats, large frocks or aprons, and gloves and boots, making it difficult to get an accurate reading of their size and features.
Abrams recalled that on a rare instance, when a minor who had lied his way into employment was discovered, the Human Resources director summarily fired him. Bensasson testified to a similar instance of uncovering an underage worker – a girl under 18 – and immediately firing her.
Rabbi Zvi Bass, another former plant manager, said that the testimony of former supervisor Matthew Derrick, who said that he had told Bass that “youngsters worked at the plant,” was untrue. He said Derrick had never talked to him about children at the slaughterhouse or about working conditions there.
Derrick’s testimony was so fraught with obvious falsification that Judge Callahan himself commented for the record that he did not find his testimony credible.
In response to questions about minors and whether he observed workers in safety equipment, Rabbi Menachem Meir Weissmandel, the former rav hamachshir at Agriprocessors, said he walked every area of the plant once a month for seven years and routinely observed workers fully attired in safety equipment. “Never did I see a worker that I could identify as a minor,” he said.
Rabbi Weissmandel used the opportunity on the witness stand to explain the origin, in his view, of the widespread prejudice against Agriprocessors and Sholom Mordechai Rubashkin. He cited the relentless smear campaign of PETA, aided by UFCW union leaders, liberal Jewish activists at the Forward, and Conservative Jews pushing a new kind of kosher certification. The new “hechsher” is based not on halacha, but on arbitrary ethical standards, determined by a committee led by Morris Allen of Minneapolis.
Allen has come under scrutiny for using the plight of Postville’s Hispanic community to promote his agenda. He was photographed on the anniversary of the ICE raid taking part in religious services in St. Bridget, a Catholic church in Postville that has fomented animosity and ill will toward Agriprocessors and Sholom Mordechai. During a march afterward from the church to the site of Agriprocessors, Allen scooped up a Guatemalan youngster, hugging him in front of the cameras.
[In remarks quoted in JTA after the November federal trial, Allen praised the guilty verdict against Sholom Mordechai and later disgraced himself by insisting, in the face of an uproar over the recommended life sentence, that the punishment was not “unfair.”]
ADVOCACY WORKER: RUBASHKIN A “FILTHY JEW”
The church’s destructive role in encouraging Hispanic workers to badmouth Sholom Mordechai was highlighted by the testimony of Ana McCarthy, a Panamanian-Jewish native who is a Spanish language translator now living in Illinois. Outside the presence of the jury, McCarthy said she traveled to Postville in August 2008 after encountering a shortage of kosher meat in Chicago and hearing about the ICE raid.
She described waiting at St. Bridget Church for a meeting with a community leader and being startled to overhear someone in authority telling former Agriprocessors employees that they could get U-visas to remain in the country. All they had to do was report that they were abused by Sholom Mordechai.
She said the man, Tom Walsh, a non-Jew who represents the Chicago-based Jewish Council for Urban Affairs, coached people to make claims against their former boss, saying that Sholom Mordechai was a “filthy Jew” who got rich at their expense.
In an interview with Yated, Ms. McCarthy said that when Walsh saw that she had overheard his remarks, he accused her of snooping and, towering over her, ordered her to leave the building. She appealed for help to a priest and nun in the room, but they merely stood by chuckling as she was aggressively ushered out.
Later, McCarthy found out that the Jewish Council for Urban Affairs had donated about $100,000 to the Hispanic community of Postville, entrusting it to St. Bridget’s Rev. Paul Ouderkirk (now retired) to distribute to the immigrants. Earlier in the trial, defense attorney F. Montgomery Brown had accused St. Bridget for not only coaching, but essentially blackmailing the Hispanic families affected by the raid.
“As much as it pains me to say it, this Catholic church was a long-term adversary of Agriprocessors,” said Brown. “There was a mantra within the church’s walls,” said Brown. “Voice complaints against Sholom Rubashkin, and you’ll be financially rewarded.”
McCarthy, who spent hours interviewing many Hispanic workers, told the Yated that she knew of a number of people who refused to fabricate stories of abuse. “They were in great need but received no financial help from the church,” she said. “It seems money from the Jewish Council of Urban Affairs was used very selectively by the church.”
NO CUTBACKS ON SAFETY
Testimony from a number of witnesses established that safety training and safety equipment at the plant were a foremost priority. Plant manager Chaim Abrams testified that $100,000 a year was invested in safety equipment, protective safeguards and training.
Regardless of budget cuts at various times throughout the plant, he said, no cutbacks were ever made in the area of safety. Allegations had been raised that workers were forced to pay for their protective equipment, but no witnesses brought this complaint in court. It turned out to be one of many unsubstantiated libels spread by opponents.
Other myths were punctured on the witness stand. Claims that no medical insurance was available to the workers were shredded. The truth was brought home most eloquently by the testimony of a government witness who chose to remain at Agriprocessors due to the medical treatment he was afforded by the plant’s insurance plan for an ear-related ailment.
WORKPLACE INJURIES LOWER THAN NATIONAL AVERAGE
Plant manager Chaim Abrams testified to an affirmation from the plan’s insurance carrier that Agriprocessors’ record of workplace injuries fell below the national average at slaughterhouses. This was borne out by the fact that after a five-year period, insurance premiums paid by Agriprocessors for its workers so exceeded the amount of claims filed that the company received a refund – virtually unheard of in the slaughterhouse industry.
Aaron Goldsmith, a Postville resident and former city councilman, testified that his own research had confirmed Abrams’ testimony. In addition, Goldsmith testified that he had once asked Senator Tom Harkin – no great friend of Agriprocessors – how Postville’s meat-packing plant compared with others across the country in terms of safety and cleanliness.
“Aaron, I’ve visited meat-packing plants across the country. Agriprocessors is one of the cleanest and most well-run,” Harkins told him.
The “poisonous chemicals” the workers were exposed to turned out to be nothing more than dry ice and chlorine bleach, present in concentrations similar to those used every day in households. A third “chemical,” anhydrous ammonia, posed no danger because it ran in enclosed pipes and workers were not exposed to it, defense expert Rodney Heston explained.
A touch of comic relief – as well as a window into the overblown hype being parlayed by the prosecution – was introduced when a government witnesses complained about chemicals that made him cough, his throat burn and his eyes smart.
“Were you given a protective mask?” the prosecutor asked through a translator.
“No, nothing,” the witness said.
“And you were exposed to these chemicals every day?”
“Yes, every day.”
Under cross-examination, defense attorney Monty Brown asked the witness what department he worked in.
“Making ready-made meat burgers.”
“Those chemicals that made your eyes sting… Weren’t those actually spices like pepper that you mixed into the meat?”
“Ah…yeah… spices. I ..ah… got mixed up between chemicals and spices.”
LABOR DEPARTMENT KEPT AGRIPROCESSORS IN DARK ABOUT MINORS
One of the most troubling disclosures that emerged from the defense testimony concerned an April 2008 onsite inspection of the plant by the Labor Department. Mary Funk, an immigration attorney from Des Moines, testified that following that inspection, Agri was sent a subpoena asking for over 100 personnel files.
Aware that the inspection team had included a Hispanic woman trained as a “facial expert,” Funk surmised that underage workers may have been discovered. Funk sent a letter to Sheridan Lucht, one of the labor officials, asking her to specify the names of any employees she believed to be minors, so that Agriprocessors could fire them.
“She wouldn’t give us any names,” testified Funk in court. She went on to describe how she repeatedly pressed Lucht at the Labor Department for the names of the suspected minors and was continually rebuffed.
“Why wouldn’t Ms. Lucht give the names?” defense attorney Brown asked.
“She said the investigation was ongoing.”
“So labor [officials] let minors remain there for many weeks until the raid?
“I don’t know what they did. I only know we were not told who these minors were – if in fact they were minors.
“Is it fair to say Ms. Lucht was playing games by withholding this information?
“All I know is she did not give us the names.”
Apparently in no particular hurry, the Labor Department scheduled a June 2008 onsite inspection of documents at Agri to complete its investigation. That inspection never took place due to the May ICE raid, at which point all documents and records were seized by ICE officials.
One can’t help but ask the obvious question: Is it not bizarre that government officials took no action to stop minors from working long hours around supposedly poisonous chemicals and dangerous machinery?
Shouldn’t they have been concerned enough about child-laborers to respond to the attorney’s repeated inquiries? After all, would the state of Iowa be prepared to spend close to half a million dollars to prosecute Sholom Mordechai if they did not consider child-labor laws of paramount importance?
One cannot avoid the implication that if, in fact, minors had been discovered, these were being used as pawns in a more important cause – and that is why officials stonewalled on the names.
Here was a chance to stage a high-profile case in the name of a humanitarian cause. Here was an opportunity to advance careers by bringing down someone who had come to epitomize worker abuse and exploitation of the poor. Sholom Mordechai by this time had been so demonized in the public mind – including a broad spectrum of the Jewish community – that he would be an easy target. The lack of evidence notwithstanding, he would be a cinch to convict. No one would rally to his defense.
DEFENSE HIGHLIGHT: MOTION FOR ACQUITTAL
After the government rested its case last week, the defense team argued persuasively that the judge should throw out all 83 misdemeanor child labor charges and grant a “directed acquittal” [without the case going to the jury].
“The State failed to produce the slightest evidence that Sholom Mordechai committed a criminal offense,” attorney Mark Weinhardt told Judge Callahan. “The operative word here is the verb employ. The State did not show proof of the slightest action on the defendant’s part to employ minors. The evidence in this case is that Mr. Rubashkin did absolutely nothing.”
NO PROOF OF AGES
Weinhardt argued that proof of the actual ages of the workers who testified is “the very lynchpin of the State’s case.” Yet, prosecutors offered no proof of the ages, such as bringing in parents or a verifiable birth certificate. The prosecution is asking the jury to accept the workers’ “uncorroborated claims in matters where they have demonstrated powerful motives to lie about their ages and extensive histories of doing so.”
“Mr. Rubashkin should receive a judgment of acquittal on every count of the Amended Complaint based on this deficiency, Weinhardt argued.
Weinhardt elaborated on the overwhelming temptation for witnesses to lie in order to qualify for a U-visa, awarded by the government to victims who aid the government in the prosecution of a crime. The victims must testify to having been injured or abused at the worksite.
These visas not only grant the witness permission to work in the United States, but enable his family to join him if the visa’s holder is under 21. The U-visa offers the easiest and surest path to permanent residency in the United States. For many impoverished natives of Guatemala and Mexico, the glittering allure of a U-visa is irresistible. It trumps all other considerations.
The immigration attorney for all the States’ witnesses, Sonia Parras Konrad, has made a career of obtaining visas for Hispanic immigrants. Her coaching is evident in the “carbon copy” nature of their testimonies – the transparent sameness of the responses and their quick retreat into selective amnesia – “I don’t know,” “I don’t understand,” “I don’t remember” – when confronted with evidence contradicting their claims.
PROSECUTION TRIED “BAIT AND SWITCH”
In another cogent argument for “directed acquittal,” the defense pointed out the inherent inapplicability of the 83 specific counts, noting that the government did not even try to pursue them.
That would require proving that the defendant knew each witness and personally hired him or her – an absurdity. Instead, the prosecution came up with a more practical approach, an attempt to prove a single count of having allowed a general scheme to employ minors.
Switching courses in midstream is devious and should not be permitted, Weinhardt said. To win a conviction, the State should be required to go back to the Complaint and prove each specific item on the list of 83 counts. The prosecution’s veering off course to prove a different charge not spelled out in the Complaint raises the question of the trial’s validity.
While he did not as yet rule on the defense’s motion, Judge Callahan acknowledged that the argument was “compelling.” A ruling must be handed down within the next day or two, before the case goes to the jury.
As the final day of defense testimony played out in court, one thing was certain. Regardless of the outcome, the state trial has opened up a wide window on an unknown side of the Agriprocessors saga, which cannot fail to change public discourse about the case.
Given an opportunity to air before a jury the most incriminating allegations about worker abuse, unsafe conditions and child-laborers, prosecutors were reduced to complaining about spices, dry ice and bleach. Whether any minors worked at Agriprocessors is highly doubtful, and to suggest they did so at Sholom Mordechai’s behest – or even with his knowledge – is stretching credulity past reason.
The defamation of Sholom Mordechai Rubashkin in the media has been so relentless and thorough, however, that his guilt has been accepted in many circles almost as an article of faith. Thus, for many, the jarring effect of the trial’s revelations as hard-to-uproot prejudice wrestles with the emerging truths.