[By Debbie Maimon – As published in this weeks Yated Ne’eman]
The Supreme Court’s rejection of the Rubashkin appeal continues to stir outrage and deep distress among Sholom Mordechai’s supporters and advocates, including his legal team.
“The Supreme Court’s refusal to consider the Rubashkin case — which is the greatest injustice I have seen in more than 50 years of law practice — was very distressing,” said lead appellate attorney Nathan Lewin. “But the legal battle is not over. There are, in American legal history, a few famous cases ‘that will not die.’ The Rubashkin case is in that league.
“The Torah teaches that tzedek does not come easily; it must be pursued. Even at this juncture, there are legal avenues for overturning a fundamentally unfair trial.”
Agudath Israel released a statement immediately following the news of the Supreme Court’s rejection.
“Agudath Israel of America is deeply saddened by the Supreme Court’s refusal to review the case of Sholom Rubashkin,” the statement said. “Serious questions have been raised as to the fundamental fairness of his trial and sentence, and he surely deserved a full hearing from our nation’s highest court. It is noteworthy that a broad and distinguished array of legal scholars and experts have declared the case to be a miscarriage of justice. As such, the justices have sadly squandered an opportunity to right a terrible wrong.”
A SAD DAY FOR JUSTICE
Guy Cook, Sholom Rubashkin’s lead trial lawyer, who also worked on the final draft of the cert petition to the Supreme Court with Nathan Lewin and Paul Clement, called the Supreme Court’s refusal to hear the Rubashkin appeal “a sad day for justice.”
“The monumental injustices in this case screamed out for review,” Mr. Cook said in a lengthy interview with Yated. “At the core of this travesty is a grave violation of due process, and the decision to deny Sholom an opportunity to reverse this failure is indeed troubling.
“The case presented an opportunity to uphold the rule of law, to prove that prosecutors and judges cannot circumvent the law with impunity,” he said.
Given the high level of public interest, and given the number of legal scholars and organizations, as well as the array of formal attorneys general and former U.S. Attorneys that stood behind Sholom’s appeal, it is extraordinary that the Supreme Court turned it down,” Cook said.
“The many amicus briefs carried the signatures of scores of weighty legal authorities who saw this case as an important vehicle to set the record straight on matters important to the country,” he added. “That their opinions were not heeded is beyond disappointing.”
“These legal experts were impartial–they had no ‘dog in the fight’–yet their passionate calls for a review were ignored,” he said.
The Iowa attorney underscored what he felt were the two most glaring injustices in the case that cried out for rectification: First, “the judge’s improper involvement with the prosecution prior to court proceedings–and her failure to disclose it–robbed the defendant of a fair trial,” he said.
Secondly, Cook noted “the wrongful application of the sentencing guidelines, and the legal and procedural errors that were used to justify an appallingly harsh sentence where there was no criminal intent.”
“Here was a defendant who had no intention to hurt anyone, to cheat anyone out of anything. This was a case in which no one was hurt–until the government nuclear bombed Agriprocessors and caused the company’s bankruptcy.
“The government then orchestrated the impoverishment of the business by preventing its sale to new owners while it was still valuable, thus causing the failure of the bank loan, and driving up the loss amount in order to drive up the prison sentence.”
“Sholom Rubashkin, who was not responsible for this loss amount, was then sentenced to a virtual life sentence because of financial losses the government itself had caused,” Cook recapped.
“These injustices were simply ignored,” the attorney said. “The 8th Circuit’s opinion was notable for its whitewashing of the issues.”
“Their ruling did not address any of the core arguments raised in the appeal,” he said. “If you knew nothing about this case except what was discussed in their ruling, you’d think that was just an ordinary criminal prosecution, when it is anything but that.”
Asked if he saw an ethical problem with the 8th Circuit’s decision to invite Judge Linda Reade to sit with them on cases the same day as the Rubashkin appeal was being heard, Cook said the move “raised real questions about whether justice was being honored.”
QUINTESSENTIAL MAN OF FAITH
Asked about the remaining post-conviction remedies available in the Rubashkin case, Cook said a second FOIA lawsuit had been filed by a Washington firm on behalf of Sholom Rubashkin, for the release of volumes of information that till now have been withheld from the defense.
“At least 30 per cent of the FOIA documents we received were heavily redacted,” Cook said. “The lawsuit is demanding full disclosure of the ICE documents and other government materials related to the 2008 raid. It is also seeking to have the case moved from Iowa to Washington where the federal agencies responsible for the documents are based.
Cook indicated that new revelations of misconduct or other foul play could possibly lead to a new motion for retrial, as well as increased pressure of the Department of Justice for an investigation.
“Nothing is impossible for a man of faith,” he said, “and Sholom Rubashkin is the quintessential man of faith. If you speak to him, he will tell you that miracles are possible. And indeed, I can attest to that.”
“Miracles have happened in my own family,” the attorney shared with this writer. “My son was waiting for a year and a half for an organ transplant. His case seemed almost hopeless. Sholom and many of his family members were praying for him. Miraculously, the organ transplant just recently came through. My son was operated on and is now recovering. Yes…I do believe that justice in this case is still possible.”