By Nathan Lewin
Almost a quarter of a century ago, Raymond Donovan, secretary of labor in the Reagan administration, was acquitted by a jury of larceny and fraud charges. His reaction, as quoted in the next day’s news stories, was, “Where do I go now to get my reputation back?”
Sholom Rubashkin can ask the same question. The attorney general of Iowa was not content to make a reasonable prosecutorial presentation of his claim that Rubashkin knowingly hired employees under the age of 18. He was obviously envious of the federal prosecutors who had monopolized national headlines with their highly publicized raid on Agriprocessors and with the colorful photograph of Rubashkin taken in handcuffs by federal marshals after his unnecessary arrest.
Rubashkin’s lawyers had informed the prosecutors that he would surrender voluntarily if notified that charges against him were going to be filed – the customary procedure utilized in white-collar criminal investigations. Instead, successfully seeking to grab his own headlines, Attorney General Tom Miller chose to charge Rubashkin with 9,311 counts of violations of Iowa’s labor laws.
Was there ever any serious intention on the attorney general’s part to proceed to trial on even one percent of his allegations? Most unlikely. In fact, he dropped 9,228 counts before trial and took his case to trial on 83 counts. Even of that miniscule remnant, 16 were dropped when all the evidence was in.
But the enormous volume of initial charges cemented into the public’s mind what had been asserted previously (1) by a union that had unsuccessfully tried to represent the workers at the Iowa kosher-slaughtering plant, (2) by a Jewish weekly, and (3) by otherwise respected Conservative rabbis. All of them succeeded in drawing in the public’s mind a perverted portrait of Sholom Rubashkin, picturing him as someone who exploited his employees and willingly hired adolescents to wield knives and lug heavy carcasses of kosher slaughtered animals.
Presidential candidate Obama – a law professor educated in the country’s top law school – parroted that line. When he swung through Iowa on a campaign trip in August 2008 and was asked what he thought of the local meatpacking plant, he replied, “When you read about a meatpacking plant hiring 13-year-olds, 14-year-olds – that is some of the most dangerous, difficult work there is . They have kids in there wielding buzz saws and cleavers? It’s ridiculous. And the only reason they’re hiring these folks is because they want to avoid paying people decent wages and providing them decent benefits.”
And even some Orthodox Jewish groups, too self-conscious to challenge the union’s and the media’s portrayal, joined the chorus that condemned Rubashkin and demanded his ouster from the meatpacking business well before any trial.
Even though the Iowa jury had been saturated with anti-Rubashkin publicity during his federal trial, it saw through the smear when Attorney General Miller was forced to present his evidence and subject it to cross-examination. The state prosecutor was permitted to bring high-school students who had worked in the plant and been deported to Guatemala under special visas to testify at the trial. But all admitted that they had lied about their age when they applied for jobs, and they failed to remember that they had told federal agents when they were arrested that they never saw Sholom Rubashkin and did not know whether he knew any under-age employee was working there.
The plant’s employment ads all made it crystal-clear that only those over 18 were eligible to apply. And Rubashkin’s defense demonstrated convincingly that age could not be determined by appearance alone.
The defense proved Rubashkin took great pains to be sure that no minors were knowingly employed. When a Jewish woman pleaded with him to hire her under-18 son because he needed a salary, Rubashkin refused because it would violate the law. That evidence was so compelling that the prosecutor was reduced to arguing to the jury that Rubashkin was a racist who did not want to hire any under-age applicant “from the yeshiva” but was content to have the public school (populated by Guatemalans) become “a feeder to that plant.”
The acquittal by the Iowa jury should lead the public and the courts to re-examine the story the media and the prosecutors have been peddling. Sholom Rubashkin has been the victim of a vicious public smear campaign, and he is entitled to recover his reputation. Restore to him the initials of his name – Sholom Mordechai – his “shem” which, according to rabbinic lore, is more dear than fine oil. And may the acquittal have an impact – a “roshem” (all three initial letters of his name) – on future developments in the Rubashkin case.
Nathan Lewin is a Washington attorney who was not involved in the Iowa state prosecution but who will serve as Sholom Rubashkin’s federal appellate counsel.