Monday, September 19, 2011

An Unjust Decision

First let me say that I am very disappointed by the Federal Court of Appeals refusal to grant Sholom Rubashkin a new trial - thus upholding his 27 year prison sentence. I still feel that the punishment here does not fit the crime. And so do many distinguished Americans in both the legal community and among many public servants – both past and present... as does much of the media.

There is a telephone interview on with famed attorney Nat Lewin (pictured above) who led the legal team that argued the case before the court. He said that in his 50 years as an attorney he has never seen such a massive injustice - with such an aggressive and improper prosecution; and with such unethical conduct by prosecutors and judges as there was in this case. Asked why - he answered that he felt it was becasue of its high profile. The desire for publicity on the part of the Department of Justice and personal ambition on the part of the prosecutors is what motivated them to be so aggressive and intransigent.

I guess the Supreme Court is next. So there is still hope that real justice will eventually be served. My sincere hope is that they will reverse the decision of the appeals court and give him a new trial that will have a better outcome.

That said it is still troubling that in response to this disappointing decision Mr. Rubashkin maintains a posture that blames everyone but himself for his travails. A letter reflecting his views was published at He basically curses them by saying the following:

As it is important to know that HASHEM saves the Yidden, it’s also important to know that the wicked collaborators will be buried in the dirt that they dug as it says in Tehillim “BOIR KORO VAYACHEPEREIHU”. The Shaar Habitochon says clearly that there is also the Bitachoin that the wicked will be punished for their wickedness.

Just as I have sympathy for his predicament, I have absolutely no sympathy for his sense of self righteousness. Nor do I give Matzav a pass on lavishing praise on him at every turn – as if he were the greatest Tzadik in all of Jewry that was being imprisoned by an anti Semitic Russian Czar with trumped up charges.

What is being completely ignored by both Matzav and Mr. Rubashkin himself is the Chilul HaShem he created in the first place by trying to defraud a bank to the tune of over 26 million dollars. He was found guilty of that. No one disputes his guilt.

That he meant to pay it back but was prevented from doing so because his business was raided by the Department of Immigration and Customs Enforcement (ICE) and ultimately shut down is irrelevant. The fact that the bank he defrauded didn’t care if the documents they required to make the loan were forged or not is irrelevant. That he did it to save his father’s business is irrelevant too. So is the fact that he was otherwise a good person.

The fact is that he deliberately perpetrated a fraud of massive proportions. And never once expressed regret or even the slightest indication that he did anything wrong. There is no sense of contrition. It’s all about the ‘evil anti Semitic Goy’. Thus perpetuating the Chilul HaShem. He wants salvation from God? Is there salvation for perpetuating a Chilul HaShem? ...even inadvertantly?

Many people are trying to say that this was clearly a case of anti-Semitism. I honestly don’t know for sure because I cannot read what is in the hearts and minds of the prosecution and judges. But I will take Nat Lewin at this word. He says there wasn’t. If anyone is in a position to know that - he is.

One of the arguments made that there was anti Semitism is that he was denied bail during the trial because he was a Jew and therefore a flight risk. His Judaism meant that he could escape to Israel and become an immediate citizen via the ‘Law of Return’ thus avoiding extradition. Was that so unreasonable? Mr. Lewin claims it was since in his entire career no Jewish client ever jumped bail in a white collar case.

Unfortunately there was at least one very high profile Jew who did. An Orthodox Jew from Chicago has shown that this is a legitimate fear because he did exactly that.

If I understand correctly - the only reason he was brought back to the United States to face charges of defrauding the government of millions of dollars was because the United States and Israel recently signed a new agreement extending its extradition treaty to include financial crimes. When Mr. Rubashkin was awaiting trial the extradition treaty did not yet include financial crimes. So whether he would have actually done so or not – it was certainly a legitimate fear on the part of the government… and not necessarily anti-Semitic.

Nonetheless (and contrition aside) I still feel that justice has not yet been done in this case. It is my sincere hope that the Supreme Court will hear the case and reverse the decision of the Appeals Court. As it stands now his sentence is a travesty of justice. He does not deserve to spend most of the rest if his life in a federal prison with no hope for parole.