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Friday, July 2, 2010

Rubashkin prosecutor's claim to set record straight falls short

Dubuque Telegraph Herald
June 30, 2010

U.S. Attorney Stephanie Rose has decided that "silence is no longer in order" ("Setting the record straight on Rubashkin, Agriprocessors," June 23). Should a U.S. Attorney take offense at the exercise of First Amendment rights by American citizens who support Sholom Rubashkin and publicly denounce how he has been treated?

By publishing a letter that makes assertions never proved or tested in court, Ms. Rose has opened the propriety of her conduct to discussion in the media.

Nathan Lewin has criticized her in a letter to the Department of Justice. We now challenge her to debate Mr. Lewin on the propriety of the prosecution in a one-hour public session in Des Moines.

This response concerns a few errors in her published defense.

Ms. Rose portrays Postville before the May 12, 2008, raid as beset by fear that necessitated the federal government's "massive enforcement operation." Before the immigration raid Postville was enjoying a substantial economic boom because of Agriprocessors' commercial success and substantial employment at the plant. Fears of deportation, creditors, or a crumbling economy resulted from -- and were not cured by -- the ill-conceived raid.

Can Ms. Rose explain why the Department of Homeland Security has reduced substantially the immigration-raid policy Ms. Rose extols? Have the "highest levels of the United States Departments of Justice and Homeland Security" now decided that the "fears" Ms. Rose graphically describes are in fact caused by immigration raids?

Several U.S. attorneys rejected ICE's raid requests while they were in office. Her office was asked in a formal lawyer's letter to enter the Postville plant peacefully and remove those they found to be illegal aliens, as had been done in Texas. Why was this peaceful proposal rejected?

Ms. Rose praises the "tireless" federal court proceedings that followed the raid. Professor Erik Camayd-Freixas, a Spanish interpreter, wrote a detailed essay condemning the assembly-line process, and a federal civil rights lawsuit attacked the procedure she lavishly praises.

The U.S. Supreme Court held unanimously in May 2009 that the identity-theft felony her office and Judge Linda Reade threatened to use against the aliens to get them to plead guilty in 2008 was inapplicable to their case and was, therefore, misused by the prosecutors and the judge.

Ms. Rose says that Mr. Rubashkin's supporters have painted the prosecutors as "racists, Nazis and zealots."

In fact, no responsible Rubashkin supporter has said or implied that anyone on the prosecution team is a racist or a Nazi.

Her claim that Mr. Rubashkin personally profited from Agriprocessors' funds fails to note that he put personal funds into his father's wholly owned business. Agriprocessor funds paid to Sholom Rubashkin were reimbursements for Agri expenses, repayment of loans Rubashkin made to Agri or funds used for Agri purchases.

Ms. Rose claims that the accusations against her office are "vicious and false" and "ill-informed." But there are many critical accusations that she has failed to answer.

Wasn't Mr. Rubashkin handcuffed and arrested in October 2008 only to generate national publicity? The routine procedure is to tell the defendant's lawyer to bring the client in to plead to the charge.

Why was Mr. Rubashkin imprisoned for 76 days before trial on the office's bogus claim that he could flee to Israel and would be immune from extradition under Israel's "Law of Return?"

Were the charges against Mr. Rubashkin deliberately multiplied by the office through an unprecedented seven superseding indictments to 163 counts to impress the media, the public and the jury?

Why was a 1926 law that has never before in U.S. history been used for criminal prosecution invoked when the charges were based on full payments made by Mr. Rubashkin 10 days late?

Did the office prevent sale of the business to any purchaser who might employ any member of the Rubashkin family in a managerial capacity, thereby making a sale of the business virtually impossible?

A consensus of the legal community, including six former U.S. attorneys general, both liberal and conservative, has objected to Ms. Rose's overzealousness in her initial sentencing recommendation.

We trust that Ms. Rose will debate Mr. Lewin publicly on these important questions concerning the propriety of her office's conduct and tactics.

Lewin is a former Deputy U.S. Assistant Attorney General in the Civil Rights Division, teaches Supreme Court litigation at Columbia Law School, and has argued 27 cases before the U.S. Supreme Court. He is principal appellate counsel for Sholom Rubashkin. Cook is a Des Moines-based attorney with Grefe & Sidney and was the principal trial counsel for Sholom Rubashkin.