Five months later, the government arrested the plant's manager, Sholom Rubashkin, on charges of harboring illegal immigrants, but ICE's case had problems. For example, it turned out that an undercover ICE agent had twice tried to secure employment at this plant, but he was turned away because he did not have the proper papers.
It would not do to have such a dramatic raid and nothing to show for it. The Justice Department filed seven superseding indictments charging bank fraud. The indictments included a creative theory — that Rubashkin falsely certified to the bank that Agriprocessors was complying with all the laws even though it was employing undocumented aliens. The federal jury did convict on the bank fraud charges, and the federal government dropped all immigration charges. In the meantime, Iowa indicted Rubashkin for employing child labor. The state initially alleged 9,311 offenses and went to trial on only 83; the trial judge limited that number to 67, and the jury acquitted on everything.
Federal prosecutors recommended life imprisonment. After widespread criticism of such a harsh sentence by many people (including six former U.S. attorneys general), the government asked for a 25-year sentence. Judge Linda Reade, the trial judge, imposed 27 years instead.
The AUSA wanted a document “for his presentation to the judge,” because of the “requirement to brief the judge.” The actual raid was planned “[i]n coordination” with “the United States District Court in the Northern District of Iowa.” The trial judge, ICE and the AUSA had “a weekly operations/planning meeting” about this upcoming case.
The judge and the prosecutors should have notified Rubashkin's lawyers that she had participated in planning the raid so that they could move to recuse her. Failure to do so was prosecutorial and judicial misconduct.
Alan Dershowitz is a professor of law at Harvard University. Ronald Rotunda is a professor of law at Chapman University. Rotunda filed an amicus brief in the U.S. Court of Appeals for the Eighth Circuit on behalf of the National Association of Criminal Defense Lawyers, which various professors and practitioners, including Dershowitz, joined.