Harvard law professor and noted criminal defense attorney Alan Dershowitz – known for defending Nazis, O.J. Simpson, and other high profile defendants (often with lots of cash to spend) – publishes a lie about a sitting federal judge as part of his effort to get convicted felon Sholom Rubashkin a hearing before the U.S. Supreme Court.
Originally published at 7:50 pm CDT on 4-27-2012
If there was ever any doubt about Alan Dershowitz's ethics, the article he co-wrote for the National Law Journal about the Sholom Rubashkin case should put them to rest.
Dershowitz is a brilliant lawyer and legal tactician, and he has some positive points about him despite his propensity to defend Nazis and other people few of us can stomach.
While others were afraid or dismissive, Dershowitz publicly debated Rabbi Meir Kahane. He's written a book and many article defending Israel from what often (but not always) is unfair international criticism. And he opened a kosher restaurant near Harvard because he thought it shameful that there was no place for Jews to get kosher food adjacent to America's premiere university.
But in conversations with Jewish activists, Jewish leaders, and Jewish community members over more than three decades, I can't remember one time where anyone said anything nice about Dershowitz that wasn't coupled with a much larger dose of venom directed toward him. And I've found the same thing to be true among non-Jews, as well.
The most common complaint besides his choice of clients?
That Dershowitz plays fast and loose with the truth, that he takes what is truthfully black and claims it's white, and does so by creatively censoring or misrepresenting the facts that prove him wrong.
Now Dershowitz has done something demonstrably false, something that court documents, including an appeals court decision, show is not true.
But more than that, the actual document Dershowitz claims to be quoting clearly shows that Dershowitz is not telling the truth. (You can also see that document in the updates to this linked post and I've also posted the relevant excerpt below.)
And because this exact same falsehood was spread by Nathan Lewin and Rubashkin's defense committee last year, but was shown to false (first by me, then by the judge being lied about, then by the appeals court), Dershowitz's use of it now is absolutely reprehensible.
Here's the lie, as Dershowitz and his partner in deception Robert Rotunda have it in today's Law.com article:
At one meeting, which law-enforcement personnel attended at the judge's request, the judge stated that she was "willing to support the operation in any way possible, to include staffing and scheduling." She was essentially part of the prosecution team.
The words in quotation marks are not the words of the judge, though. They're the words of an ICE agent who wrote a terse summary of the meeting, and the document the words are taken from is absolutely clear about that:
Attributing words to a sitting federal judge that are not hers, and doing so in a way that is defamatory – which is what Dershowitz and Rotunda have done here – should demand that Dershowitz and Rotunda be sanctioned by the bar.
But asking lawyers who often make their livings by parsing, shading and misrepresenting the facts to police their own is a bit much. Still, it should be done.
Dershowitz and Rotunda don't limit their deceit to this one flagrant lie. Their entire article is filled with lies of omission. If you know the actual facts of the Rubashkin case, the facts that provide the context for Dershowtiz and Rotunda's cherry picked 'facts,' you know that the conclusion Dershowitz and Rotunda led you to belive the facts support is in fact a conclusion the facts refute.
Here are a few examples:
1. Dershowitz and Rotunda write that:
"…Agriprocessors, an Iowa kosher processing plant, learned that the Immigration and Customs Enforcement Agency (ICE) was concerned about its hiring practices and planned a raid, it hired a law firm to contact ICE and offered to cooperate with the authorities in terminating undocumented workers. ICE did not reply. Instead, on May 12, 2008, it launched a highly publicized raid, with about 600 agents in riot gear, accompanied by a Blackhawk helicopter. Agents arrested 389 workers."
But the truth is much different from what Dershowitz and Rotunda claim.
Long before the immigration raid, Agriprocessors got hundreds of no-match notices from the federal government. These notices essentially mean that the Social Security information submitted by the company for a specific employee does not match the records the government has. In many of these cases, that turns out to mean the worker in question is using a false identity because they are undocumented aliens.
In response, Agriprocessors hired an attorney who specialize in immigration issues. That attorney advised Sholom Rubashkin to take specific actions, including responding to the no-match notices.
Rubashkin did some of what the attorney recommended but allowed the deadline to resolve the no-match issue with the federal government to pass. And for about six months after that, Rubashkin did nothing.
Exasperated, the attorney sent Sholom Rubashkin a letter. He reminded him that Agriprocessors was in danger and vulnerable to prosecution. He pointed out that Rubashkin hadn't done what he told him to do, and he recommended further action.
Here is the relevant excerpt (the entire letter is part of the court document posted here) :
Apparently frightened by that letter and by the now pervasive rumors in North East Iowa of a pending immigration raid in the region, Rubashkin allowed the federal government to be contacted.
But it was too late.
By this time the raid had been fully planned and was ready to be staged in a matter of a few weeks, and ICE already had information showing that as many as 75% of Agriprocessors workers were undocumented.
The raid took place as scheduled.
The attorney's letter to Rubashkin is part of his court record. It. I published it here, as well. Dershowitz and Rotunda had complete access to it. Yet they chose to omit the fact that it exists from their article, just as they omitted the fact those 389 workers arrested were undocumented aliens, and that hundreds more undocumented alien Agriprocessors workers escaped arrest because their shift was over and they were not in the plant when the raid took place.
Agriprocessors had about 1000 workers on its various payrolls on the day of the raid. Approximately 700 to 800 of them were undocumented.
If Agriprocessors had voluntarily terminated these undocumented workers, the plant would have closed. Indeed, after the raid, what crippled Agriprocessors was essentially one problem: it could not get enough legal workers to staff the plant.
Even now, almost four years after the raid and after Agriprocessors (now called Agri Star) new owner upped the hourly starting wage from the $5 to $6 dollars per hour Agriprocessors paid to $8 to $9 dollars, staffing is still an issue – and that's true even though Agri Star is producing much less meat than Agriprocessors did. (I should add that I've heard that Agri Star is paying less than what I noted above, but I don't have the pay stubs yet to prove it.)
2. Dershowitz and Rotunda also claim that:
"…It would not do to have such a dramatic raid and nothing to show for it."
How an immigration raid that at the time was the largest in U.S. history in terms of single site arrests of undocumented aliens could be viewed as coming home empty handed is beyond me and beyond rational thought.
But that doesn't stop Dershowitz and Rotunda from basing their next set of remarks on that fabrication.
3. The very next sentences Dershowitz and Rotunda write are these:
“The Justice Department filed seven superseding indictments charging bank fraud. The indictments included a creative theory — that Rubashkin falsely certified to the bank that Agriprocessors was complying with all the laws even though it was employing undocumented aliens."
Dershowitz and Rotunda don't tell you everything the government's theory of the crimes included. They don't even tell you all the key things. They just tell you one thing: "that Rubashkin falsely certified to the bank that Agriprocessors was complying with all the laws even though it was employing undocumented aliens."
That Sholom Rubashkin committed multiple acts of money laundering, that he used Jewish charities he controlled to hide Agriprocessors income and to launder it, that he inflated the value of his collateral so the banks would lend him massive amounts of money and used a scheme based on fraudulent invoices to do it are all facts these "officers of the court" omitted, just as they omitted the fact that a paper trail exists for many of these illegal acts.
4. Dershowitz and Rotunda continue:
"The federal jury did convict on the bank fraud charges, and the federal government dropped all immigration charges."
Dershowitz and Rotunda do not tell readers that Rubashkin was also convicted of wire fraud and money laundering, or that he used Jewish charities he controlled to hide Agriprocessors income and to launder it, inflated the value of his collateral so the banks would lend him massive amounts of money, and used a scheme based on fraudulent invoices to it. And they don't tell you that a paper trail exists for almost all of it.
5. "…and the federal government dropped all immigration charges."
Dershowitz and Rotunda don't tell readers that happened only after the federal government won conviction on 86 felony fraud charges, making prosecuting the immigration charges – which carry relatively light sentences – redundant. (It is common in split cases like this for the government to drop the lesser charges after winning conviction on the more serious charges.)
But the U.S. Attorney didn't simply drop the charges – the charges were dropped in a special way that allows them to be refiled – something the US Attorney may still do.
6. Dershowitz and Rotunda write:
“In the meantime, Iowa indicted Rubashkin for employing child labor. The state initially alleged 9,311 offenses and went to trial on only 83; the trial judge limited that number to 67, and the jury acquitted on everything.…"
All this is true. But what is also true is that the trial did not find that Agriprocessors didn't illegally employ children. The opposite is true.
But Iowa law as it then read could be understood to require that a C.E.O. know about each individual child worker for him to be liable for employing them, not that he had more than enough opportunity to know that underage workers were being hired, and that's how Rubashkin's trial judge understood the law.
This same trial judge also barred all those no-match notices I mentioned above from being brought into evidence during the trial on the theory that he did not want to confuse child labor issues with immigration issues. The fact that all the alleged child workers were undocumented workers was apparently lost on him.
Those two rulings (and some really bad lawyering from Iowa's attorney general) allowed Rubashkin to beat the rap.
Even so, witness after witness took the stand, stated their ages and admitted to being undocumented aliens. Some spoke of dangerous conditions and abuses they suffered at Agriprocessors, as well.
In response to the judge's rulings and Rubashkin's subsequent acquittal, Iowa lawmakers amended the law to plug the loopholes that freed Rubashkin.
It's too close to Shabbos for me to finish going point by point by point through the Dershowitz Rotunda article, so I'll just touch on two more points now.
7. That the court's chief judge Linda Reade, ICE and the US Attorney's office met before the raid was known to the defense before trial, despite what Dershowitz and Rotunda wrote. But Rubashkin and his attorneys chose not to try to get the judge replaced.
The 'new evidence' 'discovered' after the trial was that there were more than one or two such meetings. The judge had not withheld the number from the defense and nothing unusual happened in those meetings according to the documents Rubashkin's appeal were based on.
The judge, ICE and the US Attorneys office all say the judge did not know where the raid was taking place, that the target was Agriprocessors, or that Rubashkin was involved.
Instead, her role was to make sure the court had enough judges, defense attorneys, Internet connections, translators and related support staff on hand at a temporary facility in Waterloo, Iowa where detainees would be held and processed. This doesn't violate the law in any way, and it doesn't violate the judicial code of ethics.
8.Dershowitz and Rotunda write:
"…the government asked for a 25-year sentence. Judge Linda Reade, the trial judge, imposed 27 years instead.
But Reade did more than impose a disproportionate sentence."
Dershowitz and Rotunda don't tell you that the sentence Rubashkin got falls in the middle of the range recommended by the U.S. sentencing guidelines, which call for a sentence of 22 years to 30 years for Rubashkin's crimes.
Further, they don't tell you why Judge Reade added 2 years to the 25-year base sentence – Rubashkin perjured himself in court.
For that perjury, Reade added two years to his sentence. As she noted in her sentencing memorandum, a federal judge is allowed to add on to a base sentence for other crimes committed by the defendant that have not yet been tried or charged. She noted Rubashkin had a number of those crimes. But she decided not to sentence him for them (although she reserved the right to do so if the case was returned to her by a higher court for resentencing).
But the perjury that took place in front of her was an exception. It was too brash for her to let go unpunished.
If I have time over the weekend, I'll continue pointing out the misrepresentations in defense of Rubashkin made by Dershowitz and Rotunda.
Here's the Law.com article:
Prosecutorial and judicial misconduct
High court should hear 'Rubashkin' to consider overzealous DOJ and judge who was essentially on prosecution team.
Alan Dershowitz and Ronald Rotunda • National Law Journal / Law.com
Lawyers for Sholom Rubashkin — Paul Clement and Nathan Lewin — filed last month a petition for writ of certiorari with the U.S. Supreme Court. Rubashkin is seeking relief from the Supreme Court because the U.S. Court of Appeals for the Eighth Circuit refused to consider evidence that Rubashkin first discovered after the trial that made the trial fundamentally unfair.
Indeed, during the past few years, a series of federal judges have criticized the U.S. Department of Justice for prosecutorial misconduct. Judge Emmet Sullivan of D.C. district court, who ordered a criminal investigation into the actions of prosecutors in the trial of former Alaska Senator Ted Stevens, suggested that the case reflected deeper problems at the Justice Department. Chief Judge Mark Wolf of the District of Massachusetts found that he regularly presided over cases where federal prosecutors withheld important evidence, about every other year for the past two decades.
It's happened again, but this time the judge herself is part of the problem rather than part of the solution. When Agriprocessors, an Iowa kosher processing plant, learned that the Immigration and Customs Enforcement Agency (ICE) was concerned about its hiring practices and planned a raid, it hired a law firm to contact ICE and offered to cooperate with the authorities in terminating undocumented workers. ICE did not reply. Instead, on May 12, 2008, it launched a highly publicized raid, with about 600 agents in riot gear, accompanied by a Blackhawk helicopter. Agents arrested 389 workers.
Five months later, the government arrested the plant's manager, Sholom Rubashkin, on charges of harboring illegal immigrants, but ICE's case had problems. For example, it turned out that an undercover ICE agent had twice tried to secure employment at this plant, but he was turned away because he did not have the proper papers.
It would not do to have such a dramatic raid and nothing to show for it. The Justice Department filed seven superseding indictments charging bank fraud. The indictments included a creative theory — that Rubashkin falsely certified to the bank that Agriprocessors was complying with all the laws even though it was employing undocumented aliens. The federal jury did convict on the bank fraud charges, and the federal government dropped all immigration charges. In the meantime, Iowa indicted Rubashkin for employing child labor. The state initially alleged 9,311 offenses and went to trial on only 83; the trial judge limited that number to 67, and the jury acquitted on everything.
Federal prosecutors recommended life imprisonment. After widespread criticism of such a harsh sentence by many people (including six former U.S. attorneys general), the government asked for a 25-year sentence. Judge Linda Reade, the trial judge, imposed 27 years instead.
But Reade did more than impose a disproportionate sentence. After Rubashkin's conviction and sentence, defense lawyers learned that Reade, over a six-month period, had been actively engaged in planning the Agriprocessors raid. E-mails and affidavits showed that, long before the raid occurred, Reade met with ICE agents to discuss "charging strategies, numbers of anticipated arrests and prosecutions, logistics, the movement of detainees, and other issues related" to the investigation and operation. At one meeting, which law-enforcement personnel attended at the judge's request, the judge stated that she was "willing to support the operation in any way possible, to include staffing and scheduling." She was essentially part of the prosecution team.
A March 20, 2008, e-mail states: "The Chief Judge has indicated she wants a final game plan in two weeks (April 4)." Eleven days later, another e-mail discloses that the assistant U.S. attorney (AUSA) would meet with Reade on April 4, and the judge wanted "a briefing on how the operation will be conducted."
The AUSA wanted a document "for his presentation to the judge," because of the "requirement to brief the judge." The actual raid was planned "[i]n coordination" with "the United States District Court in the Northern District of Iowa." The trial judge, ICE and the AUSA had "a weekly operations/planning meeting" about this upcoming case.
The judge and the prosecutors should have notified Rubashkin's lawyers that she had participated in planning the raid so that they could move to recuse her. Failure to do so was prosecutorial and judicial misconduct.
The judge made herself a witness involving the events of the disqualification issue and then said — unsurprisingly — that she would rule in favor of her version of events, rather than the version suggested by the documents and the affidavits. She judged her own credibility even though the federal statute provides that, when a litigant alleges prejudice by a judge, "another judge shall be assigned to hear such proceeding." Case law provides that "the court must accept all facts included in the affidavit as true." But she did not do that, either.
On appeal, the Eighth Circuit affirmed the conviction and refused to disqualify the judge because, it said (applying a rule unique to the Eighth Circuit) the defendant should have filed his motion earlier, and it was not convinced that the newly discovered evidence "probably will result in an acquittal upon retrial."
The Supreme Court should decide to hear this case and use it as a vehicle to examine cozy relations between a prosecution that was too zealous and a judge who was too involved in pretrial prosecution strategies. The Iowa legal director of the American Civil Liberties Union, one of the groups that filed an amicus brief on behalf of Rubashkin, warned that the judge's involvement with the prosecution "immediately gave the appearance of unfairness." It was more than appearance. It was actual unfairness.
Alan Dershowitz is a professor of law at Harvard University. Ronald Rotunda is a professor of law at Chapman University. Rotunda filed an amicus brief in the U.S. Court of Appeals for the Eighth Circuit on behalf of the National Association of Criminal Defense Lawyers, which various professors and practitioners, including Dershowitz, joined.