Jerrold Nadler writes a very respectful letter to Attorney General Eric Holder asking for a review of the Sholom Rubashkin case. But in the letter, Rep. Nadler makes several serious errors of fact that render most of his request moot and show once again that Rubashkin's legal and PR team are in effect lying to people like Rep. Nadler to get their support.
Here is Congressman Nadler's letter. Please see the footnotes for my comments:
The Honorable Eric H. Holder, Jr.
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Dear Attorney General Holder:
I am writing to you about a series of events involving the Department of Justice (DOJ), stemming from a raid on the Agriprocessors, Inc. plant in Postville, Iowa, on May 12, 2008, the subsequent criminal prosecution of Sholom Rubashkin, and the criminal prosecutions and deportations of undocumented immigrants seized in the raid. Various reports concerning the conduct of DOJ personnel leading up to, during, and following the raid raise serious issues of potential misconduct or improper Department policy that I believe demand your careful review, consideration, and, where appropriate, remedial action. As the Ranking Democratic Member of the Subcommittee on the Constitution, I believe it is important that the Department of Justice respects the rights of persons in its custody, and persons accused of crimes.
The first issue involves what have been described as extensive ex parte communications between Chief Judge Linda Reade and DOJ. According to reports and court papers, Chief Judge Reade met with representatives of DOJ and Immigration and Customs Enforcement (ICE). Although characterized by DOJ as merely involving “logistical cooperation,” these contacts were reportedly extensive and involved a broad range of matters. I have been informed 1 that many of the details of these ex parte communications were not available to defense counsel in the trial of Sholom Rubashkin, and were only available to his appellate counsel through redacted documents obtained under the Freedom of Information Act.
I am concerned by the allegation that DOJ may have withheld from Mr. Rubashkin and his attorneys information pertaining to these contacts. Professor Stephen Gillers noted in his September 7, 2010 submission to the United Status District Court for the Northern District of Iowa,
I conclude that U.S. lawyers violated rules governing ex parte contact with the judge who presided at the trial of Mr. Rubashkin and in failing to inform Mr. Rubashkin’s defense counsel at the inception of the criminal proceeding against Mr. Rubashkin or, at the latest, before the deadline for filing a motion to recuse, of the number of, and the substance of communications in, the ex parte pretrial contacts with the judge prior to the raid on Agriprocessors ….
The ethical prohibition against ex parte communications, as applied in criminal cases, and the prosecutorial disclosure duty, under both professional conduct rules and Brady, build on that constitutional mandate and are required by it. Just as a prosecutor cannot ethically or constitutionally conceal information that will impeach the credibility of a government witness, neither can she conceal information that provides the defense with a basis to argue that his constitutional and statutory rights to the fact and appearance of disinterested justice are compromised. 2
In the past you have reviewed serious allegations of prosecutorial misconduct, especially when it involved the withholding from defendants information pertinent to their defense, as was the case with the prosecution of Senator Ted Stevens. I believe that these allegations are sufficiently serious to warrant your review.
The second issue involves the conduct of the raid, and the handling of the cases of the undocumented immigrants seized in that raid.
The ex parte communications with Judge Reade in question were apparently initiated by DOJ as part of the planning of a raid by DOJ and ICE on the Agriprocessors plant during which 389 undocumented immigrants working at the plant were taken into custody.
As a result of the meetings, arrangements were made to move some of the court’s judges and other personnel to the National Cattle Congress in Waterloo, Iowa, to facilitate the processing of undocumented immigrants taken into custody. 3
Details of the process, as uncovered at a July 24, 2008 hearing by the House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law, are deeply troubling. As part of this process, individuals detained were reportedly rushed though a criminal proceeding in which, as part of a plea agreement, they had to waive their rights to an administrative removal hearing, regardless of whether they may have had a right to valid immigration relief, such as asylum, a claim under the Violence Against Women Act, or approved family- or employment-based immigrant petitions.
Instead of placing these individuals into the normal administrative removal proceedings, 302 of the 389 workers arrested were criminally charged with identity theft, use of a false ID and/or Social Security number, and illegally reentering the United States following deportation. They were told that they faced a minimum of two years in prison, but were offered a uniform plea agreement in which the government would withdraw the heavier charge of aggravated identity theft, the defendants would serve five months in jail, receive three years of supervised release, and be deported without a hearing.
According to testimony presented by Deborah Rhodes, Senior Associate Deputy Attorney General, at the July 24, 2008 hearing, “[d]efendants who were charged with the same offense and offered the same plea agreement typically were arranged in groups of 10.” She further testified that “271 defendants were sentenced to five months in prison and three years of supervised release …. Two defendants were sentenced to 12 months and a day in prison and three years of supervised release ….” These cases were disposed of within 10 days. Only 18 criminal defense lawyers were appointed by the federal court to represent hundreds of defendants; every attorney represented 17 defendants on average. 4
The third issue involves statements made by United States Attorney Stephanie Rose in an interview published in the December 27, 2010 issue of the Gazette. In that interview, Ms. Rose states that “[t]he goal of this case was to prevent future crimes like this, as well as to punish Rubashkin … This case was important for those that are taking advantage of and employing illegal immigrants but all of that got lost with this other stuff. We are hoping the appeal process will correct some of that.” I do not believe that either the law or Department policy permit an individual to be sentenced for an offence that was neither charged nor decided by the jury. 5
The final issue involves the position reportedly taken by DOJ at Mr. Rubashkin’s bail hearing. It has been reported that the government opposed bail stating that Mr. Rubashkin was a flight risk solely because, as a Jew, he was eligible for Israeli citizenship under that country’s Law of Return. 6 I hope that it is not the position of the Department of Justice that a defendant’s religion, in the absence of any other evidence, would make him ineligible for bail. Please let me know the Department’s position on the role of religion in bail proceedings, and what steps you are taking to ensure that defendants are treated fairly in our courts regardless of their religion.
While the facts of these cases, and the ultimate disposition of important questions of law, are more appropriately considered by the federal courts, there are serious issues of DOJ policy, and prosecutorial conduct arising from these cases that are appropriate for your review. I urge you to examine these questions and let me know how you intend to handle the serious issues raised by these cases.
Thank you for your attention to this matter.
Subcommittee on the Constitution
Here are Nadler's factual errors. You'll see that most of Nadler's letter becomes moot once the actual facts are noted:
1. Informed by whom? Obviously by Rubashkin's defense team, who are misrepresenting the facts of the case. These ex parte communications were known long before Rubashkin was arrested, let alone tried. They were part of another criminal case related to the raid that took place before Rubashkin's arrest and trial. Yet Rubashkin's legal team specifically chose not to challenge Judge Reade's impartiality on this basis which means Rubashkin lost the right to make that challenge now, because the only legal basis for using that challenge now would be that Rubashkin and his attorneys did not know about these ex parte communications at the time of his trial. That is why Nathan Lewin tries to overcome that by claiming that while Rubashkin knew about the ex parte communications, he did not know their full extent – and then goes on to lie about the contents of the FOIA documents and make up quotes he falsely attributes to Judge Reade.
2. As I noted when Gillers' affidavit was filed, Giller's affidavit says specifically that he has "no personal knowledge" of the facts of the case, and the he is relying on Nathan Lewin's representation of the facts of the case. Gillers did not base his affidavit on the facts of the case, on the documents, or on the trail transcript. He based it on Rubashkin's attorney's telling of the case, and that makes anything Gillers wrote both partial and worthless as any type of independent analysis of the case.
3. Rep. Nadler seems to be unaware that Iowa's Northern District has only three judges: the court's chief judge, Linda Reade; Jon Scoles, the magistrate; and an 86-year-old semi-retired judge who works part time. This is the court that had to handle hundreds of simultaneous arrests and arraignments – ICE and the DOJ thought they would arrest as many as 600 undocumented workers and that was the figure the court had to plan for – along with arranging translators, defense attorneys, court and IT logistics, and that also had the legal responsibility to ensure the detainees were fed, housed and given medical care in accordance with the law. Rep. Nadler seems to be operating on the idea that Iowa's Northern District is staffed similarly to New York's Southern District, where there are many judges and a huge support staff.
4. While I find this figure disturbing, it must be understood that the Northern District of Iowa does not have a large number of public defenders and pro bono defense attorneys to call on, and that the attorneys who defended the undocumented workers made up most of the available defense attorneys in the district. Past that, if Rep. Nadler would check the active caseload of public defenders in New York City, he would see they also have huge caseloads. In other words, this is a system wide problem that needs to be addressed in state and federal courts across the country and is not the fault of the DOJ.
5. This is laughable. Rubashkin was charged with a litany of immigration offences that were originally scheduled to be tried with the financial fraud charges. Rubashkin's attorneys asked for the financial charges to be severed from the immigration charges because they felt the trial would be too complex for the jury to follow if all charges were tried together. They also feared the jury would be unduly and emotionally influenced by testimony about Rubashkin's immigration-related crimes (which carry a rather light potential sentence), and that would have led to a slam dunk conviction on the financial fraud charges (which, as we all know, carried the potential for a very long sentence). The government did not object to Rubashkin's request to sever the charges and Judge Reade severed them. The financial charges were tried first. Rubashkin was convicted on 86 counts and sentenced to 25 years in prison for them plus 2 more years for perjuring himself in court, for a total of 27 years. The government dropped the immigration charges after Rubashkin's conviction because the cost of trying them was prohibitive and a conviction on all immigration counts would have added little to Rubashkin's sentence. The government can reinstate those immigration charges if it so desires. (On a personal note, as I've said several before, I believe Rubaskin's sentence is too harsh, even though it is in concert with the US sentencing guidelines. Under those guidelines, Rubashkin could have been sentenced to anywhere from 22 to 30 years in prison, plus 2 more for perjury. I believe this penalty is too harsh, and that the sentencing guidelines need to be revised.)
6. This, too, is laughable. Rubashkin was deemed a flight risk for several reasons. One was his ability as a Jew to get automatic citizenship in Israel. Another was a large amount of cash found in a travel bag in his closet along with the passports of his minor children and birth certificates and social security cards of himself and his wife. (Rubashkin and his wife had already been forced to turn over their passports to the court.) Additionally, at the time Rubashkin was deemed a flight risk, Israel had a questionable record with regard to extradition. (A good example of Israel's attitude toward extraditing people who are well connected to politically influential groups or individuals in Israel – as Rubashkin is – is the case of Avrohom Mondrowitz, an accused child rapist who has spent much of the past three decades living safely and openly in Israel.) While this was not mentioned by the the prosecution, it is not unreasonable to assume they were well aware of the issue.
Rep. Nadler's letter suffers from the same things many other letters in support of Sholom Rubashkin suffer from – dishonesty and sloppiness.
In Rep. Nadler's case, the dishonesty appears to be completely the fault of Nathan Lewin and Rubashkin's defense and PR team, who clearly misrepresented the facts of the case to Rep. Nadler.
But the sloppiness is Nadler's alone.