The foregoing history of this criminal prosecution demonstrates that, from beginning to end, the case against Sholom Rubashkin has been pursued by the federal prosecutors with unprecedented aggressiveness. To our knowledge, in no prior federal criminal prosecution based on immigration-law and bank-fraud allegations:
(1) Has an accused charged with harboring illegal aliens been required to post a $1 million dollar bail and released only with an electronically monitored ankle bracelet;
(2) Has an accused been arrested on a charge that he committed bank fraud by signing a loan agreement that was allegedly false because of a violation of a compliance-with-all-laws provision;
(3) Has an accused been imprisoned for any time, much less 76 days, because he is Jewish and Israel has a Law of Return;
(4) Has an accused been subjected to seven superseding indictments;
(5) Has an accused been charged with a criminal violation of the Packers and Stockyards Act of 1921;
(6) Has a nonviolent first-time offender who misrepresented the value of collateral been sentenced to what is, effectively, life imprisonment; and
(7) Has an accused who made no attempt to flee while being investigated as a target, complied meticulously with all conditions of pretrial release, and offered conditions of release that would have made him a prisoner in his own home been denied release pending sentencing on the grounds that he is a flight risk.
Whatever motives the prosecution may have had in pursuing him with such extraordinary zeal through arrests and indictments, Sholom trusted that the open court process would result in a fair disposition of the accusations made against him and that in an open jury trial the prosecutors excesses would be fairly tempered by the presiding judge so that justice would prevail.
His experience in the Iowa state courts proved that this confidence was valid. State prosecutors filed 9,311 misdemeanor counts against him in State v. Rubashkin, where he proceeded to trial before an impartial judge and a jury. He was acquitted on all the counts that remained after the state prosecutors voluntarily dismissed more than 99 percent of the charges.
In the federal trial, the presiding judge made many questionable and prejudicial rulings. Appellant’s trial counsel objected to many rulings that appeared to tilt the federal trial against Mr. Rubashkin, culminating in the jury verdict and the startling prison sentence imposed by the judge.
There was no obvious reason for the judge’s apparent failure to act as the impartial arbiter contemplated by the federal criminal process until many months after the federal trial. It was then discovered, from documents that the government had kept from the defense, that the trial judge had participated frequently, as early as six months before the raid, in meetings with prosecutors and law enforcement personnel who were planning the raid on Agriprocessors. One document even described the trial judge as a stakeholder in the raid. Neither she nor the prosecutors had disclosed the details of this collaboration and their off-the-record meetings to Mr. Rubashkin’s trial counsel.
This pre-raid association explains, we believe, why this case has lacked the balance and proportion that the federal judicial system expects federal district judges to provide in criminal trials. The offenses with which Mr. Rubashkin was charged, permitting illegal aliens to be employed at the meat-packing plant and overstating the value of the collateral for his bank loan in order to be able to take larger draws, did not call for the drastic measures and punishments that the prosecutors sought to administer to him. But it was simply human nature that a federal judge who so extensively participated in the planning of the raid a judge whose commitment to the law enforcement goal was demonstrated by her repeated demand for a “final gameplan” on the raid would be unable to exercise the restraining influence on the prosecutors with whom she had worked in the preparation and planning of the Agriprocessors raid in order to provide a fair trial to Sholom Rubashkin.