Audio: Avi Moskowitz On The Rubashkin Motion

Former Assistant Deputy US Attorney for the Southern District of New York and current defense attorney practicing in Manhattan discusses Sholom Rubashkin's motion to have the judge recuse herself.

Avi Moskowitz does not say whether he actually read the affidavits he refers to.

As I noted just before Rosh Hashana, one of the experts writes in his affidavit that he did not read any of the documents his opinion comments on. Instead, he relied completely on the description of those documents written by Rubashkin's attorney Nathan Lewin.

The second expert Moskowitz refers to did read the documents – but he was paid $500 per hour to read almost 300 pages of these documents and write his opinion, meaning this expert was paid a five figure fee for his work. Moskowitz does not mention this, perhaps because Nathan Lewin's press release does not mention this expert was paid.

The second expert's opinion also admits that the code of judicial ethics allows a judge to be involved in logistical issues pre-trial.

Despite Lewin's misquotes and spin, all the evidence in the documents Lewin filed with the court and all the evidence the government filed in return document logistical involvement only.

(Moskowitz previously commented on one egregious misquote from a Lewin press release. I was the first to report that misquote and, to my knowledge, weeks later Lewin has still not corrected it.)

All this said, here is Avi Moskowitz's comment from last night's Zev Brenner Talkline show.

Please click the gray bar to listen or right click on it to download:

Avi Moskowitz 9-14-10

Comments

[sage]

SMR and his legal staff are digging for a "Needle in the haystack" not realizing, that in this case, there simply isn't any needle there.

[sage]

SMR and his legal staff are digging for a "Needle in the haystack" not realizing, that in this case, there simply isn't any needle there.

[effie]

Are the affidavits posted?

My take is that they are attempting to slime Reed to the point that there is no chance that if the case is remanded for re-sentencing, it will go back to her.

It would be better for Reed to handle the motion, set the record straight, and deny it. The defense still has the right to appeal the motion.

[FirstGenerationBavarianAmerican]

I note that our moderator did not yet post the documents alluded to in his post of September 8th. Maybe he wants to see how many people like Avi Moskowitz offer commentary on this matter. But where are they getting their information from? I doubt they are paying the PACER fees; no case to charge the cost off to. The Des Moines Register article of September 10th (without a byline) seems to be taken from the press release.

Avi Moskowitz makes a compelling argument to have a judge in another district rule on the recusal issue. But what happens if the second judge agrees with Judge Reade? Are Rubashkin's lawyers going to accept that verdict, or will they keep the taxi meter running?

This site has reported on the motions preceeding the Rubashkin federal trial in 2009. These motions often were accompanied by "expert opinions". Judge Reade usually ripped these opinions to shreads.

[OMG]

I guess I need help to understand Avi Moskowitz’s argument that Jude Reed {sec} should recues herself for ruling on this motion, wasn’t this motion filled in the appellate court. Secondly, even if Judge Reade rules against Rubashkin, the defense should be able to appeal her ruling, to be heard by a three judge panel as Effie wrote.

[FirstGenerationBavarianAmerican]

OMG:
These affadavits were filed with the district court. Avi Moskowitz alluded to this when he said this was a "reply brief".

[effie]

Motions for New Trials must be filed in the trial court and before sentence is imposed. Rubashkin is arguing that he was denied discovery and should be allowed to file the Motion now.

OMG: He filed it in the USDC. What I don't understand is that, expert opinion is admissible on issues that a lay person would not understand. A jury is also allowed to disregard expert opinion. The issues the experts are arguing are not issues that at atty or Judge would require an expert's opinions on.

The motion makes reference to a "Memorandum of Law" but I don't see it. Is there one?

[FirstGenerationBavarianAmerican]

Effie and OMG:
1. I think the "memorandom of law" is the Lewin document that Cook and Brown filed with the district court asking for a new trial.
2. From this post:
http://failedmessiah.typepad.com/failed_messiahcom/2010/09/new-rubashkin-press-release-misrepresents-role-of-key-legal-experts-456.html

there is reference to an article in Yated. That article states an opinion by Mark Harrison was filed with the Eight Circuit Court of Appeals for a postponement of the filing of an appeal. If the opinion is the same as the one filed with the district court, then Yated didn't really leak it.

The problem is that, without springing for the money to download the documents, we don't know what really happened. You really can't trust Al Jazeera.

[FirstGenerationBavarianAmerican]

Effie and OMG:
1. I think the "memorandom of law" is the Lewin document that Cook and Brown filed with the district court asking for a new trial.
2. From this post:
http://failedmessiah.typepad.com/failed_messiahcom/2010/09/new-rubashkin-press-release-misrepresents-role-of-key-legal-experts-456.html

there is reference to an article in Yated. That article states an opinion by Mark harrison was filed with the Eight Circuit Court of Appeals for a postponement of the filing of an appeal. If the opinion is the same as the one filed with the district court, then Yated didn't really leak it.

The problem is that, without springing for the money to download the documents, we don't know what really happened. You really can't trust Al Jazeera.

[effie]

FGBA: This is the motion:
http://failedmessiah.typepad.com/files/rubashkin-motion-for-new-trial-8-5-10.pdf

The last paragraph states: The grounds for these motions are fully set forth in the accompanying Declarations and
Memorandum of Law. Oral argument is requested.

However, I see no Memorandum of Law - just affidavits.

[Shmarya]

there is reference to an article in Yated. That article states an opinion by Mark Harrison was filed with the Eight Circuit Court of Appeals for a postponement of the filing of an appeal. If the opinion is the same as the one filed with the district court, then Yated didn't really leak it.

The problem is that, without springing for the money to download the documents, we don't know what really happened. You really can't trust Al Jazeera.

As I wrote in my post:Update 4:00 pm CDT – I should also mention that Mark I. Harrison's opinion was filed with the court today and is dated 9-7-10. But his opinion was published by Yated Ne'eman, the haredi 'newspaper' that has been supporting Rubashkin, last week. In other words, this 'expert' allowed his paid opinion to be leaked to the press and used publicly before the court had its filing. This is unethical, to say the least, and is indicative of Nathan Lewin's disregard for the truth and for ethics. [End 4:00 pm update.]

[effie]

Okay, I found the memorandum.

[FirstGenerationBavarianAmerican]

I don't want to be a pest or nitpick. But others such as OMG may have seen this article:
http://www.yated.com/content.asp?categoryid=0&contentid=185

There is a new Eight Circuit Court of Appeals case number: 10-2487. I think it will become necessary to specify which court a given document is filed with in order to follow this story. Rubashkin supporters would like nothing better than to confuse the hell out of us, then point out where we screwed yup. Just like they like to post URL's of 'trophy' blog articles whose authors fell for their propaganda.

[FirstGenerationBavarianAmerican]

I don't want to be a pest or nitpick. But others such as OMG may have seen this article:
http://www.yated.com/content.asp?categoryid=0&contentid=185

There is a new Eight Circuit Court of Appeals case number: 10-2487. I think it will become necessary to specify which court a given document is filed with in order to follow this story. Rubashkin supporters would like nothing better than to confuse the hell out of us, then point out where we screwed yup. Just like they like to post URL's of 'trophy' blog articles whose authors fell for their propaganda.

[Menachem Mendel lll]

Ha'shem will make certain that in the end emes will prevail and this Hebraic-Judaic FELON aka Rabbi Rubashkin who pissed and defecated on the torah, gemmarah and the law of The United States Of America rots in a federal penitentiary like decomposing excrement or until the Moshiach arrives,
whatever comes first.

Amen.

[OMG]

Effie here is the link to the Memorandum of Law,
http://www.easy-share.com/1912280936/35534909-942-1-Memorandum-of-Law[1].pdf

I uploaded it if, if you wait for a half a minute you will be able to get a free down load.
After looking at the motion yes, it was filed in the District Court.

[OMG]

Effie here is the link to the Memorandum of Law,
http://www.easy-share.com/1912280936/35534909-942-1-Memorandum-of-Law[1].pdf

I uploaded it if, if you wait for a half a minute you will be able to get a free down load.
After looking at the motion yes, it was filed in the District Court.

[effie]

FGBA: The trial court is the USDC and the motion for a new trial was filed there, case no. 2:08-cr-01324-LRR-2.

The appellate court is the 8th Circuit COA where they are appealing the conviction, case no. 10-2487.

The defense recently filed motions in the 8th Circuit asking for the appeal to be put on hold and the AG has objected.

[effie]

Thanks, OMG. Unfortunately, I downloaded it. It's always nice to get things for free, though. :) I believe FM will be posting more documents soon.

[Shmarya]

I posted that memorandum a month ago, I think.

[OMG]

Thanks FBGA, I know that I read it someplace, that it was filled in the appellate court, but I don’t remember were, it could have been in Yated, or some other site.

[effie]

Re-checking, it looks like Lewin did attach Harrison's affidavit to his motion for a stay.

[FirstGenerationBavarianAmerican]

I really wish some legal expert would weigh in on the problems facing court districts with only one or a few judges. Recusal is probably an expensive undertaking for them. I would assume judges in these districts are extra sensitive to the discussions they partake in.

There are only a total of three judges assigned to the Cedar Rapids courthouse. One magistrate judge, one senior (semi-retired) judge, and Chief Judge Reade. So if you are a high profile defendant with a lot of negative pretrial publicity requiring a change of venue, guess which judge you are going to get? If you are a prosecutor who is planning to prosecute 50 counterfeiters that the feds are planning to all bust at the same time, which judge are you going to make arrangements with ahead of time to arrange court proceedings? Answering that question is as easy as figuring out who is buried in Grant's Tomb.

So, I invite you to listen to Nat Lewin's answer when a member of the audience asked Mr. Lewin how Judge Reade was assigned the Rubashkin case. The audio is included in this post about that meeting for "high profile community leaders" held on August 8th:
http://failedmessiah.typepad.com/failed_messiahcom/2010/08/nathan-lewin-says-judge-reade-lied-equates-her-to-haman-123.html

Download the lewin.mp3 file. The Q&A starts about at the 50 minute, 45 second point.

I think the government could prove the point that the defense had to have known Judge Reade was involved in discussions with prosecutors. No one else left to do the work.

[FirstGenerationBavarianAmerican]

I really wish some legal expert would weigh in on the problems facing court districts with only one or a few judges. Recusal is probably an expensive undertaking for them. I would assume judges in these districts are extra sensitive to the discussions they partake in.

There are only a total of three judges assigned to the Cedar Rapids courthouse. One magistrate judge, one senior (semi-retired) judge, and Chief Judge Reade. So if you are a high profile defendant with a lot of negative pretrial publicity requiring a change of venue, guess which judge you are going to get? If you are a prosecutor who is planning to prosecute 50 counterfeiters that the feds are planning to all bust at the same time, which judge are you going to make arrangements with ahead of time to arrange court proceedings? Answering that question is as easy as figuring out who is buried in Grant's Tomb.

So, I invite you to listen to Nat Lewin's answer when a member of the audience asked Mr. Lewin how Judge Reade was assigned the Rubashkin case. The audio is included in this post about that meeting for "high profile community leaders" held on August 8th:
http://failedmessiah.typepad.com/failed_messiahcom/2010/08/nathan-lewin-says-judge-reade-lied-equates-her-to-haman-123.html

Download the lewin.mp3 file. The Q&A starts about at the 50 minute, 45 second point.

I think the government could prove the point that the defense had to have known Judge Reade was involved in discussions with prosecutors. No one else left to do the work.

[Jose Gonzalez]

... but he was paid $500 per hour to read almost 300 pages of these documents ...

This is not an uncommon practice in such cases. In particular, if the expert opinion is highly valued, such fees are not out of the question, and do not invalidates their conclusions. On the other hand, the goim want to fry the Jew; the truth about the injustice committed against Rabbi Sholom Rubashkin is not what people want to read in this forum