THE BLOG

The Moment of Truth Is Near

02/07/2012 03:27 pm ET | Updated Apr 08, 2012

It has been nearly four years since the May 2008 ICE raid at the Agriprocessors kosher meat packing facility in Postville, Iowa. The raid, which was the largest worksite enforcement raid in U.S. history, resulted in the conviction and deportation of more than 300 undocumented immigrants, the majority of whom were uneducated Guatemalan farmers.

Launched in the waning days of the Bush Administration, Postville was a cold clinical experiment in which federal prosecutors sought to criminalize undocumented workers on a mass scale. By brazenly using the federal identity theft statute as a hammer, the U.S. Attorney's Office for the Northern District of Iowa concocted serious felonies out of routine civil immigration violations. No longer would undocumented immigrants simply be arrested, administratively processed and deported. Now they would be sent home as criminals.

In the months that followed the Postville prosecutions serious legal and ethical questions were raised about the tactics used by the U.S. Attorney's Office to coerce the convictions. Hearings were held on Capitol Hill, and, nearly a year later, the U.S. Supreme Court unanimously held in Flores-Figueroa v. United States, an unrelated case, that federal prosecutors had overreached in their use of the federal identity theft statute against undocumented workers. The decision raised troubling questions about the fairness of the Postville convictions.

Which brings me to Stephanie Rose, who just happens to be awaiting Senate confirmation of her appointment as a federal district judge by President Obama.

Rose was among the key federal prosecutors who drove the Postville prosecutions. In 2009, when she was appointed U.S. Attorney, she drew harsh criticism. At the time Rose's supporters, including U.S. Sen. Tom Harkin (D-IA), answered by minimizing her role in the Postville prosecutions. They claimed the trials were directed by the U.S. Department of Justice in Washington. But, according to The New York Times, that claim flatly contradicted the testimony of former Senior Associate Deputy Attorney General Deborah Rhodes who told a House Immigration Subcommittee in 2008 that "all of the charging decisions were made by career prosecutors in the local office." At the time, Rose was the Deputy Chief of the Criminal Division in the U.S. Attorney's Office for the Northern District of Iowa and, reportedly, third in the office chain of command.

Rose, who has all but remained silent about her participation in the Postville prosecutions, must now meet her moral and ethical duty to publicly explain her role and give assurances that as a federal judge she will show a commitment to justice that she seemed to lack in 2008. At a minimum, the Senate Judiciary Committee should insist that Rose fully explain her role, if any, in the following due process violations which characterize the assembly line justice meted out during the Postville prosecutions, including:

• The inadequate provision of defense counsel to the immigrant workers.

• The lack of meaningful access to counsel familiar with both criminal and immigration law.

• The required use of an "exploding" plea agreement which severely limited the time afforded to defendants to assess their rights under the criminal and immigration law.

• The arguably unlawful use of "judicial removal" which led to the automatic deportation of many defendants, despite close family ties to the U.S.

• The use of "Fast Tracking" prosecution which amounted to a conviction/deportation assembly line that compromised the fundamental rights of the defendants.

Did Rose at least raise her voice privately in opposition to the government's use of these coercive prosecutorial tactics?

If not, why not?

Did Rose really have no clue that the Postville prosecutions were being planned by her colleagues? Was she really unaware that federal criminal complaints and arrest warrants for 697 Postville workers were being prepared by her office? And, in light of the Supreme Court's decision in Flores-Figueroa v. United States does Rose still think use of the federal identity theft statute as a hammer to obtain guilty pleas from the Postville defendants was appropriate?

The chilling spectacle that unfolded as a result of the 2008 Postville raid remains a stain on our justice system. As a federal judge Stephanie Rose will be entrusted to decide each case fairly, impartially and diligently. That is why before the Senate passes on her confirmation it should insist that she tell the truth, the whole truth, and nothing but the truth about her role in the Postville prosecutions.

The public is entitled to nothing less.