We the People demand Mercy for Rabbi Rubashkin

Americans are invited to post a petition online at the White House’s “We the People” website. If the petition garners 5,000 signatures within 30 days, the White House guarantees it will issue an “official response.”

To date, 158 petitions have been posted to the website.

One petition deserves the attention of both the Jewish community and the broader legal community. It is the “Petition to Call For an Investigation into Allegations of Prosecutorial & Judicial Misconduct in the Case ofSholom Rubashkin.” That petition is currently the second most popular petition, with as of October 6, more than 29,000 signatures. The only petition to garner more signatures is one to Legalize Marijuana (with more than 51,000 signatures), even more than Forgiving Student Loan debt (with more than 27,000 signatures) and Abolish the Transportation Safety Administration (with more than 25,000 signatures).

The Rubashkin petition asks President Obama to direct the attorney general to investigate prosecutorial misconduct in the case of Sholom Rubashkin and to “correct the gross injustice” that has been perpetrated in that case. I am familiar with the injustice that has been suffered by Rubashkin, the former manager ofAgriprocessors, the kosher meatpacking plant in Iowa, who was sentenced to 27 years in prison. My father and I represented Sholom Rubashkin in his appeal to the 8th Circuit Court of Appeals. And I can tell you that the American justice system has failed Sholom Rubashkin.

From the very beginning, the Iowa federal prosecutors have pursued Rubashkin with unprecedented aggressiveness. They sought to have him imprisoned before trial on the ground that he is Jewish and Israel has a “Law of Return” that would prevent his extradition if he fled to Israel. (The fact that he was not a citizen of Israel, had made no effort to flee, and had no property or family connection there made no difference.) They issued an unprecedented seven superseding indictments which fragmented a single bank fraud allegation into 91 separate counts and divided the immigration charges into 72 overlapping counts.

They made Rubashkin the first person in history to be charged with a criminal violation of the Packers and Stockyards Act of 1921 (for paying his cattle suppliers a few days late). And they sought to imprison a non-violent first-time offender, with 10 children (including an autistic son), to life in prison for misrepresenting the value of his business’ collateral, despite the fact that he never exceeded his business’ line of credit and made every bank payment on time until a government raid forced his business into bankruptcy.

But there’s more. The prosecutors had numerous ex parte meetings with the judge who presided overRubashkin’s trial in planning the immigration raid that preceded the criminal charges. Documents that the government did not turn over to Rubashkin until months after his trial (pursuant to a FOIA request that had been made prior to trial), disclosed that the prosecutors began meeting with the Judge seven months before the raid on Agriprocessors took place.

Meetings were ostensibly to plan “logistics” for processing immigrants arrested during the raid, but the documents refer to a discussion of “charging strategies,” to the judge’s “support” for the raid, and to the Judge’s request for a “final game plan” of the proposed raid. One document even refers to the judge as a “stakeholder” in the raid. Neither the prosecutors nor the Judge ever disclosed to Rubashkin’s trial counsel the extent of these pre-raid meetings. According to experts in judicial and legal ethics, the Judge and prosecutors violated their ethical duties by jointly planning the raid, failing to keep records of their meetings, and failing to disclose them to trial counsel. Rubashkin’s trial counsel say that had they known the extent of the pre-trial raid-related communications between the judge and the prosecutors, they would have moved for the judge’srecusal.

Based on all this documentation, we filed a motion for a new trial. First the trial judge herself, and then the 8th Circuit denied our motion on the ground that this matter could not be raised after the trial had ended. We hope the Supreme Court will recognize the injustice of such a procedural barrier and will agree to review the conviction. Notably, the trial judge sat “by designation” (on the day before and the morning of Rubashkin’s 8th circuit oral argument in St. Louis) with two of the 8th circuit judges who heard Rubashkin’s appeal.

If Rubashkin had been granted a trial before a judge who had not been involved in planning sessions with prosecutors leading up to the raid, or had been granted an appeal with judges who had not sat together on the very same day (and the day before) with the judge whose conduct they were being asked to review, would the outcome of his trial and appeal – and certainly the length of his sentence – been dramatically different? In fact, when Sholom Rubashkin was tried for child-labor violations before an impartial Iowa state court judge, he was acquitted on all counts.

The legal community at large has recognized the injustice in the Rubashkin prosecution. The Iowa ACLU, theNACDL, and the Washington Legal Foundation all filed friend-of-the-court briefs in the Eighth Circuit in support of Rubashkin. Forty-seven members of the House of Representatives have written to Attorney General Holder expressing their concern, and 75 law professors and former U.S. Attorneys (including three former Deputy Attorneys General) have written to Attorney General Holder asking him to investigate the allegations of prosecutorial misconduct. In addition, a recent article in the National Law Journal describing problems with the Sentencing Guidelines, referred to the Rubashkin case as an example of the Guidelines run amok.

So as the Jewish community gets ready for Yom Kippur, when Jews ask God to judge fairly and with mercy, let’s remember Sholom Rubashkin, who received neither justice nor mercy, and consider adding your signature to the petition here.

by: Alyza D Lewin

Alyza D. Lewin is a partner at Lewin & Lewin, LLP where she practices law together with her father, NathanLewin. This article originally ran in the Washington Jewish Weeek, and was updated.

Click on the link to sign now: http://wh.gov/gWM

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