A federal judge’s decision to deny bail to Agriprocessors’ former plant manager, Sholom Rubashkin, based in part on the finding that Rubashkin is a flight risk to Israel, may sound familiar to the Pittsburgh Jewish community. It was that same argument which was raised, but quickly dropped, by U.S. Attorney Mary Beth Buchanan in the trial of former Allegheny County Coroner, Dr. Cyril Wecht.
The argument is based on Israel’s “law of return,” which grants automatic citizenship to all Jews, and the idea that a Jewish criminal defendant could flee to Israel for protection, and then stay there indefinitely because of his dual citizenship. The United States would then be at the mercy of Israel to extradite the defendant back to American soil.
“It’s a specious argument, and absurd in my opinion,” said Wecht. “It’s clear to me, especially as an attorney, that it’s a lame excuse. Israel is not going to harbor a criminal just because he’s a Jew.”
Wecht said that if a Jewish defendant did try to find safe haven in Israel, “the Feds would get in touch with Israel before that person even arrived. Israel would not tell the United States of America to bug off.”
No other ethnic groups are subject to the same type of scrutiny when it comes to being a flight risk, Wecht said, pointing out that Italian Americans have not been denied bail based on the possibility that they could flee to Italy, and that African Americans are not deemed flight risks to their “home of origin in Africa.”
Calling the flight risk to Israel argument “blatantly anti-Semitic,” Wecht said that in his case, he was particularly appalled that such an accusation came from a U.S. Attorney.
“When this comes from a U.S. Attorney, it is a microscopic embodiment of the United States government. That’s the issue here.”
Bail can be denied in a criminal case if a judge finds either that a defendant poses a threat to the community, or is a flight risk, said Mark Rush, one of Wecht’s attorneys.
“It is a problem if the risk of flight is based on
one’s ethnicity,” Rush added.
“One would hope the court [in the Agriprocessors case] based its determination on something other than his [Rubashkin] being Jewish.”
Indeed, prosecutors had cited additional evidence supporting their flight risk argument against Rubashkin, including the discovery of a travel bag with thousands of dollars in cash, and travel documents for family members at Rubashkin’s home at the time of his arrest. They also noted that two other former Agriprocessors workers suspected of crimes are believed to have fled to Israel.
Many Jewish groups are concerned that the prosecutors’ invocation of the law of return as a basis for denying Rubashkin bail could set a dangerous precedent for all Jewish defendants.
A court considers a variety of factors when evaluating whether a particular defendant is a flight risk, and the law of return would only come into play if there was other evidence indicating one is likely to flee, said John Burkoff, professor of law at the University of Pittsburgh, and author of 19 books and over 60 articles in the areas of criminal justice and legal ethics.
“This argument certainly could not be used against all Jews,” Burkoff said. “The fact that someone is Jewish and could gain citizenship in Israel should be relevant, but that alone will never be enough.
“What the prosecution has to show is a genuine risk of flight,” Burkoff continued. “The law of return can be relevant, but it is not dispositive. There must be something to convince the judge that this defendant was a genuine flight risk.”
Burkoff added, “The issue is not just could someone go to Israel to stay, but that they are likely to do that.”
(Toby Tabachnick can be reached at firstname.lastname@example.org.)